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CORNELL UNIVERSITY LIBRARY 
 
 924 084 263 833 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924084263833 
 
AN OUTLINE 
 
 OF 
 
 THE EQUITY PLEADING 
 AND PRACTICE 
 
 WITH FORMS 
 
 AND 
 
 The Federal Equity Rules 
 
 Prepared for the use of the students of the Law School 
 of the University of Virginia 
 
 BY 
 
 WILLIAM MIN®R LILE, LL. D. 
 
 Professor of Law 
 
 Second Edition 
 
 University of Virginia 
 
 GEORGE W. OLIVIER 
 ANDERSON BROS. 
 
 1922 
 
Copyright, 1933 
 
 BY 
 
 WnxiAM Minor LilE 
 
Preface To First Edition 
 
 This small volume is Ihe result of many years of effort to col- 
 lect the fundamental principles of the Equity Pleading and Prac- 
 tice for the use of the author's students in class-room instructior. 
 The topic is one that can successfully be taught to students only 
 by confining the instruction chiefly to the procedure of some 
 particular jurisdiction. Numerous attempts to use the larger 
 well-known texts in the class-room have proved hopeless fail- 
 ures. The author has therefore drawn very freely upon the sys- 
 tem of procedure as it exists in Virginia, where the procedure 
 at law and in equity is still almost as distinct as when Lord Ba- 
 con occupied the woolsack — and where the equity procedure 
 probably conforms more nearly to that of Bacon's day than that 
 . of any American state. 
 
 In the treatment of the subject of Receivers, free use has 
 been made of Mr. High's scholarly treatise, for which due ac- 
 knowledgment is made. If, in so elementary a work, the sub- 
 ject of Receiverships seems overstressed in comparison with the 
 briefer treatment of other topics of equal or greater importance, 
 the explanation is that it was found impracticable to handle the 
 subject in less compass, even in most elementary fashion. 
 
 Detailed reference is made throughout to the new Federal Eq- 
 uity Rules — and these rules have been reproduced in full in the 
 Appendix. 
 
 It is hoped that the complete record of a chancery suit, as ex- 
 hibited in the Appendix, may assist the student in visualizing 
 the actual procedure in court, and in cultivating a closer ac- 
 quaintance with those forms which he is expected as a practi- 
 tioner to have at his fingers' ends. 
 
 In order to fulfill its primary end as a guide to the student, 
 through what seems to the average undergraduate a dull and un- 
 inviting territory, the value of the work to the experienced prac- 
 titioner has been sacrificed, by the omission of many minute 
 points of practice. 
 
 W. M. L. 
 University of Virginia, 
 May 1, 1916. 
 
Preface To The Second Edition 
 
 In this second edition, effort has been made to incorporate 
 the later important decisions of the Supreme Court of Appeals 
 of \^irginia, and the material amendments to the equity practice 
 introduced by the recent Code revisal. The Virginia Code ci- 
 tations have been transposed to conform to the reversal of 1919. 
 In collecting the later decisions, and in the transposition of the 
 statutory citations, the author's labors were materially aided by 
 the industrious and intelligent co-operation of his young friend 
 and former pupil, Mr. Thomas D. W. Dtike, to whom grateful 
 acknowledgment is made. 
 
 In this edition there has been a substantial revision of the 
 original text. The chapter on Jurisdiction is practically new, 
 and one hundred or more new sections have been added. A few 
 additional forms have also been inserted^including the more 
 important pleadings in suits for the sale of infants' lands. A ta- 
 ble of cases has also been added. 
 
 As indicated in the preface to the first volume, the work is 
 meant primarily as a hornbook for undergraduate students and 
 inexperienced practitioners — to which circumstance is to be at- 
 tributed the omission of many matters of statutory detail. When 
 the student becomes a practitioner he will presumably make a 
 more detailed study of the statutes, in their original form, as 
 found in the Code, along with the very full and helpful anno- 
 tations of the revisors. 
 
 W. M. L. 
 
 University of Virginia, 
 February 1, 1922. 
 
Table of Contents 
 
 Chapter I. 
 
 EQUITY COURTS. 
 
 Chapter II. 
 
 JURfSDICTION. 
 
 Chapter III. 
 jurisdiction — continued. 
 
 Chapter I\'. 
 venue of suits. 
 
 Chapter V. 
 
 PROCESS TO COMMENCE SUIT. 
 
 Chapter VI. 
 
 PROCEEDINGS IN THE CLERk'S OFFICE. 
 
 Chapter VII. 
 
 PARTIES. 
 
 Chapter VIII. 
 
 OUTLINE OF THE PEEADINGS. 
 
 Chapter IX. 
 
 THE BIEE. 
 
Table of Contents 
 Chapter X. 
 
 THE ORIGINAI, BILL IN DETAIL. 
 
 Chapter XI. 
 
 ORIGINAL BILLS NOT PRAYING RELIEF. 
 
 Chapter XII. 
 
 BILLS NOT ORIGINAL. 
 
 Chapter XIII. 
 
 BILLS NOT ORIGINAL — CONTINUED. 
 
 ' Chapter XIV. 
 
 THE DEMURRER. 
 
 Chapter XV. 
 
 THE PLEA. 
 
 Chapter XVI. 
 
 THE ANSWER. 
 
 Chapter XVII. 
 
 THE REPLICATION. 
 
 Chapter XVIII. 
 
 the testimony. 
 
 Chapter XIX. 
 the master's report. 
 
 Chapter XX. 
 
 ORDERS AND DECREES. 
 
Table of Contents 
 Chapter XXI. 
 
 JUDICIAI, SALES. 
 
 Chapter XXII. 
 
 ENFORCEMENT OF DECREES. 
 
 Chapter XXIII. 
 
 MISCELLANEOUS PROCEEDINGS. 
 
 Chapter XXIV. 
 
 MULTIFARIOUSNESS. 
 
 Chapter XXV. 
 
 CONSOLIDATION. 
 
 Chapter XXVI. 
 
 special INSTANCES OF SUITS FOR RELIEF. 
 
 Chapter XXVII. 
 injunction suits. 
 
 Chapter XXVIII. 
 suits for partition. 
 
 Chapter XXIX. 
 suits for divorce. 
 
 Chapter XXX. 
 
 sale OF LANDS OF PERSONS UNDER DISABILITY. 
 
 Chapter XXXI. 
 
 creditors' SUITS. 
 
Tabi.e of Contents 
 Chapter XXXII 
 
 RECEIVERS. 
 
 Chapter XXXIII. 
 
 RECEIVERS — CONTINUED. 
 
 Chapter XXXIV. 
 
 APPEALS. 
 
 Appendix I. 
 
 I. the complete RECORD OF A SUIT FOR SPECIFIC PERFORMANCE. 
 II. PLEADINGS IN SUIT FOR .SALE OF INFANTS' LANDS. 
 
 III. SUNDRY FORMS. 
 
 Appendix II. 
 
 THE FEDERAL EQUITY RULES. 
 
Lectures on Equity Pleading and Practice 
 
 CHAPTER I. 
 
 Equity Courts. 
 
 Preliminary — function of procedural rules. — The stu- 
 dent cannot better begin his studies of the equity procedure 
 than with a i<nowledge of the purpose, and a conviction of the 
 necessity, of fixed rules and methods for all judicial proceed- 
 ings. Judge Story has thus admirably expressed the function 
 and operation of these rules in his classic treatise on Equity 
 Pleading : i 
 
 "It is obvious that in every system of jurisprudence profes- 
 sing to provide for the due administration of public justice, some 
 forms of proceeding must be established to bring the matters 
 in controversy between the parties who are interested therein 
 before the tribunal by which they are to be adjudicated. And 
 for the sake of the dispatch of business, as well as for its due 
 arrangement with reference to the rights and conveniences of 
 all the suitors, many regulations must be adopted to induce cer- 
 tainty, order, accuracy and uniformity in these proceedings. . . 
 
 "Indeed, . . . there are many rules altogether founded 
 in artificial reasoning, but which nevertheless may be affirmed, 
 with few exceptions, to be greatly promotive of public justice 
 and subservient to private convenience. If, here and there, any 
 of them work an apparent hardship or mischief, it will, on 
 close examination, be found that they also accomplish much 
 general permanent good; and in this respect they partake only 
 of the infirmity of all general rules, which must, in particular 
 cases, give rise to some inequalities and shut out some indi- 
 vidual equities and rights." 
 
 ' Story's lEq. Pleading, §§ 1-2. 
 
2 Equity Pleading and Practice 
 
 § 1. Jurisdiction statutory. — The judicial system of each 
 State of the Union is fixed by local legislation. 
 
 The Federal system depends on the constitution and laws of 
 the United States. 
 
 § 2. Equity courts in Virginia. — The equity or chancery 
 jurisdiction in Virginia is vested in the circuit ^ and corpora- 
 tion 2 courts of the different counties and cities, with special 
 provisions made for the cities of Richmond, Norfolk and 
 Roanoke. 
 
 § 3. Federal courts of equity. — In the Federal system, 
 the original equity jurisdiction was from the beginning vested 
 in the United States Circuit courts, until by a quite recent stat- 
 ute the Circuit courts were aboHshed, and all original jurisdic- 
 tion, both at law and in equity, was vested in the District 
 courts — courts which had formerly possessed no general equity 
 jurisdiction. 
 
 § 4. The Virginia and Federal judicial systems — con- 
 tinued. — In neither the Virginia nor the Federal system are 
 there separate courts for the administration of the equity juris- 
 diction, as distinguished from the jurisdiction at law. But the 
 courts named in the preceding sections possess general jurisdic- 
 tion at law and in equity. Although the two jurisdictions are 
 thus administered by the same courts, equity suits are instituted 
 and conducted according to the equity practice, and actions at 
 law according to the practice at law. The records are kept 
 distinct, and there is no further mingling of the two systems 
 than in the administration of both by the same judicial machin- 
 ery. 
 
 For a knowledge of the judicial systems of other states, ref- 
 erence must be had to their local legislation.^ 
 
 " Va. Code 1919, § 5890. See id. chs. 245, 246, 347. 
 
 " Id. '§§ 5907, 5910. 
 Of the States still maintaining the distinction between actions at 
 law and suits in equity, in the foJlowing the two jurisdictions are 
 exercised by the same court, as in Virginia and in the Federal 
 
Federal Equity Rules 3 
 
 The Pleading and Practice in Equity Courts. 
 
 § 5. Equity pleading and practice in Virginia. — In Vir- 
 ginia, the procedure in courts of chancery is based on that pre- 
 vailing in the High Court of Chancery in England at the time 
 the colonies declared their independence, as modified by stat- 
 ute, or by departures Jiere and there, established by long cus- 
 tom and judicial sanction. 
 
 § 6. The same — in the Federal courts — old equity 
 rules. — Up to February 1, 1913, when radical alterations were 
 made in equity practice, the procedure in the Federal courts of 
 equity probably conformed more nearly to that formerly pre- 
 vailing in the English High Court of Chancery than even does 
 the procedure in the Virginia courts. This procedure was to a 
 large extent, as it still is, regulated by what are known as the 
 Federal Equity Rules, promulgated from time to time by the 
 United States Supreme Court for the regulation of procedure 
 generally in all Federal courts of equity. In most respects, these 
 rules were largely declaratory of the former English practice. 
 
 § 7. The same — new Equity Rules. — But in response to 
 a very general demand for reform in the equity procedure of the 
 Federal courts, the Supreme Court of the United States on No- 
 vember 4, 1912 (effective February 1, 1913), promulgated a 
 new code of equity procedure for the Federal courts, making 
 extensive and radical alterations of the old procedure — all look- 
 ing to economy and dispatch in the maturing, decision and final 
 disposition of equity causes. These later rules completely super- 
 
 system: Florida, Georgia, 'Il'Iinois, Maine, Maryland, Massachusetts, 
 Michigan, ,New Hampshire, Pennsylvania, Rhode 'Island, Vermont, and 
 West Virginia — including also the District tof iCoJumbia. In the 
 States following, the two Ijurisdictions are exercised by separate 
 tribunals: Alabama, Delaware, 'Mississippi, New Jersey and Ten- 
 nessee. In the rest of the States, under the so-called "code system," 
 the distinction between the law and Ithe equity jurisdiction (but not 
 between law and equity) !has been abolished, so far as such abolition 
 is possible, so that both legal and equitable rights may be administered 
 in one and the same action. 
 
4 Equity PivEading and Practice 
 
 sede the former Equity Rules.* They are reproduced in the 
 Appendix. 5 
 
 The Machinery of a Court of Equity. 
 
 § 8. Court officers. — The officers normally in attendance 
 upon all se.=sions of a court of equity are: 
 
 1. The judge — usually termed the chancellor; 
 
 2. The clerk — sometimes called the register, or prothonatary ; 
 and 
 
 3. The sheriff — (in Virginia, of the county, or the sergeant 
 of the corporation). 
 
 In addition to these, every equity court has attached to it, 
 (1) One or more masters (or commissioners as they are termed 
 in Virginia) ; and (2) One or more receivers — sometimes per- 
 manent, but more usually appointed specially in particular cases. 
 The court has the discretion, which is frequently exercised, of 
 appointing special masters and special receivers to serve in spe- 
 cial cases. In absence of statutory provision, there are no jury 
 trials in the equity courts. 
 
 § 9. The same — duties. — The clerk is the secretary of 
 the court, and custodian of its records. 
 
 The sheriff is the ministerial officer of the court, whose chief 
 duty is the service or execution of process, (original, mesne or 
 final), on parties and witnesses — and to attend the sessions of 
 the court as tipstafif. 
 
 The chief function of the master'^ is as accountant of the 
 court, and the investigator of special matters of fact involved 
 in litigation before the court, and particularly in the settlement 
 of complicated accounts, and, in creditors' suits, the ascertain- 
 ment of liens and their priorities. He is also, in a sense, the 
 
 * For a luminous discussion lof the question whether the regula- 
 tion of court .procedure is a 'legislative or a judicial function, and as 
 to the constitutionality of Igtatutes delegating to the courts the pro- 
 mulgation of rules of t>ractice and procedure, see 2 Am. Bar. Ass. 
 Rep. 46. See 2 Minn. .Law Review, 81. 
 
 " In Florida the Federal Equity Rules are adopted as rules of the 
 State courts, "in absence of provisions of the law or rules of practice 
 of this State." Gen. Stat. Fla., i§ 1877; Farrell v. Forest Invest. Co. 
 (Pla.), 74 So. 216, 1 A. L. R. 25, full note. 
 
 " See Va. Code 1919, '§§ 6266-6279; post, th. xix. 
 
Jurisdiction 5 
 
 -business agent of the court, as its representative in the sale of 
 property under the court's decrees. 
 
 ■The receiver'' is more commonly the financial agent of the 
 court, particularly charged with the collection and disbursement 
 of funds, and in the care and management of property in cus- 
 todia legis. 
 
 ' Id. §§ 6380-6294. See Receivers, post, chs. xxxii-xxxiii. 
 
Equity Pleading and Practice 
 
 CHAPTER II. 
 
 Jurisdiction. 
 
 I. PoTENTiAi^ — Active. 
 
 § 10. Jurisdiction — several senses. — As the term juris- 
 diction is used in several different senses, it becomes important 
 to distinguish these at the outset. Indeed, so marked is the dis- 
 tinction, that for .our purpose we may classify jurisdiction as 
 of two kinds — the one potential, and the other active. 
 
 Later we shall consider another classification, from a differ- 
 ent point of view, namely, jurisdiction in personam and in rem; 
 and, again, the distinction between jurisdiction and venue, or 
 place of suit. 
 
 The Severai, Kinds o? Jurisdiction: 
 
 A. Potential — B. Active. 
 
 §, 11. (1) Potential jurisdiction. — By potential jurisdic- 
 tion is meant the power granted by the sovereignty creating 
 the court to hear and determine controversies of a given charac- 
 ter. 
 
 For example, the Virginia statute declares that the circuit 
 courts of this state "shall have original and general jurisdiction 
 of all cases in chancery and civil cases' at law." ^ Hence we may 
 say that by virtue of this statute our circuit courts have poten- 
 tial jurisdiction, generally speaking, over every conceivable 
 chancery cause affecting persons or property, regardless of the 
 residence of the parties or of the location of the subject-matter 
 of the controversy. 
 
 It is to be observed that such jurisdiction looks to the sub- 
 ject-mattcr of the suit only, with no reference to the person, of 
 the defendant, nor to the place of suit — nor again, to the meth- 
 
 Va. Code 1919, § 5890. ISimilar jurisdiction is conferred on the 
 corporation courts: Id. § 6907. 
 
Jurisdiction 7 
 
 ods by which the jurisdiction may be acquired or exercised in 
 a particular case.^ 
 
 § 12. (2) Active jurisdiction. — In order, however, that 
 the court thus invested with potential jurisdiction may right- 
 fully exercise that jurisdiction in a particular caj^, certain con- 
 ditions of fact must appear — these conditions varying with the 
 character or purpose of the proceeding. These conditions of 
 fact may b^ demanded either by the settled principles of the un- 
 written law, or by the mandate of the statute law. 
 
 It is, for instance, a principle of all civilized jurisprudence 
 that howsoever general the potential jurisdiction of any court, 
 before this jurisdiction may actually be exercised by proceeding 
 to judgment, either the parties to the controversy or the subject- 
 matter thereof must be brought, by proper proceedings (pres- 
 ently to be mentioned), within the judicial cognizance and con- 
 trol of the court. We may, therefore, define active jurisdiction 
 as the right to exercise the potential jurisdiction in a given case. 
 In other words, active jurisdiction connotes potential jurisdic- 
 tion, plus such conditions of fact in the particular case, as are 
 necessary to enable the court, under existing rules, to hear and 
 determine that cause. 
 
 A. Potential Jurisdiction. 
 
 § 13. Potential jurisdiction lacking. — This jurisdiction 
 has been defined. Where such jurisdiction is lacking in a par- 
 ticular case, it is a settled rule that any judgment or decree 
 rendered therein is coram non judice, and void for all pur- 
 poses.3 
 
 Thus, if the Hustings court of the city of Richmond (a court 
 without general equity jurisdiction) should entertain a suit for 
 specific performance of a contract, or should assume to enter a 
 
 " This statement is not strictly true as applied to the jurisdiction 
 of the Federal courts, whose jurisdiction is a limited statutory one — 
 nor to other courts when exercising 'a special limited and statutory 
 jurisdiction. See infra, § 18. 
 
 ^ Elliott V. Piersol, 1 Pet. 328, 340 (sheriff levying execution issued 
 thereon liable for damages); Pennoyer -v. Neff, 96 U. S. 714; Shelton 
 T. Sydnor, 12'6 Va. 625; cases infra. 
 
8 Equity Pi,e;ading and Practice 
 
 decree of divorce — or if the District court of the United States 
 should assume jurisdiction of a controversy between two States 
 (a jurisdiction vested exclusively in the United States Supreme 
 Court) — any judgment or decree resulting from such usurped 
 jurisdiction would be not only voidable but void, and therefore 
 subject to collateral attack. 
 
 § 14. The same — not cured by waiver or consent.— It 
 
 is an equally well settled rule that where, in order ^o hear and 
 determine a given cause, the court must usurp a power not 
 vested in it under the instrument of its creation, no act or neg- 
 lect, and no waiver or consent, of the iparties, howsoever sol- 
 emnly given, can diminish or enlarge the powers of the court. 
 The. maxim here is "consent cannot confer jurisdiction." * 
 
 §i 15. The same — no plea necessary. — Since there can 
 be no waiver of the objection in such case, it necessarily follows 
 that if the defect of jurisdiction appears on the record — or, per- 
 haps better, if the record does not disclose a case within the ju- 
 risdiction of the court — exception to the jurisdiction may be 
 made by any party, at any stage of the proceeding, and in any 
 form, oral or written, and even for the first time in the appel- 
 late court. It is equally true that even though no such objection 
 be made, the court will of its own motion dismiss the suit when- 
 ever and at whatever stage -of the proceedings the absence of 
 jurisdiction comes to its attention.^ And, further, any decree 
 in such proceeding is subject to be collaterally assailed, when- 
 ever and wherever it may be brought in question. 
 
 § 16. Test of potential jurisdiction. — The test of poten- 
 tial jurisdiction of the case made by the plaintifif's bill may al- 
 ways be made by demurrer. If the pleading is not demurrable, 
 the potential jurisdiction exists. Not that a demurrer is essen- 
 tial, since we have already seen that where the jurisdiction is, 
 
 * Heigler v. 'Faulkner, 127 U. S. ,482; Litz -v. Rowe, 117 Va. 752; 
 Thacker v. Hubbard, 122 Va. 379; Moore v. N. & W. 'R. Co 124 
 Va. 628, 636; Shelton v. Sydnor, 126 Va. 625. 
 
 " Green v. Massie, 21 Gratt. 356; Catron v. Bostick, 123 Va. 355; 
 cases supra. 
 
Jurisdiction 9 
 
 in fact, lacking, objection may be made informally, or the court 
 will itself raise the objection. What is meant is that if the bill 
 will withstand attack by demurrer, the case is coram judice, and 
 the jurisdiction proper.** 
 
 § 17. Jurisdictional allegations — general jurisdiction. — 
 
 Where the court is called upon to exercise its general equity ju- 
 risdiction, no special jurisdictional facts need be alleged, beyond 
 those allegations necessary in the statement of an equitable 
 cause of action. In such cases, the jurisdiction is said to be 
 'presumed', but perhaps it would be more correct to say that in 
 such cases jurisdiction exists. The 'presumption' of jurisdic- 
 tion is appealed to rather in questions of active jurisdiction,'^ dis- 
 cussed in a later section. * 
 
 § 18. The same — ^limited jurisdiction. — But the rule is 
 just the reverse where the bill is addressed to the supplemen- 
 tary jurisdiction of, equity — a jurisdiction not inherent in the 
 equity courts, but conferred by special statute, and to be exer- 
 cised only under prescribed statutory conditions of fact. Such 
 jurisdiction is generally termed a limited statutory jurisdiction. 
 
 Here the bill must affirmatively allege, and the plaintiff -must 
 
 ' This is not always true, however, where the bill is not addressed 
 to the general jurisdiction of the court, but to a limited statutory juris- 
 diction, for the exercise of which special conditions of fact must ap- 
 pear — as, for example, in suits for divorce, or for the sale of infants' 
 lands. In this class of cases, the bill may on its face set out a :proper 
 case for the exercise of the limited jurisdiction, and, therefore, with- 
 stand a demurrer; and yet the defendant may deny the existence 
 of one or more of the essential jurisdictional facts, and thus raise 
 the question of proper jurisdiction. Thus )the bill for divorce, in ad- 
 dition to other proper 'allegations, may (as it must) allege that one 
 of the parties has been domiciled in this state for one year, as re- 
 quired by statute. The defendant may traverse this alllegation, and 
 thus raise the jurisdictional question by plea or answer. It is clear 
 that such a plea need not be in abatement, since even in the absence 
 of any plea, the court will raise the objection, ex mere motu, if ob- 
 served, and the objection is one that may not be waived. The burden 
 here is on the plaintiff to prove, and not on the defendant to dis- 
 prove, the jurisdictional allegation. See § 18, infra; Yates v. Yates, 
 115 Va. 678; Blankenship v. Blankenship, 125 Va. 595. See Bills for 
 Divorce, post, ch. xxix. 
 
 ' Blankenship v. Blankenship, 125 Va. 595; Shelton v. Sydnor, 126 
 Va. '625. 
 
 ' See infra, §§ 35-38. 
 
10 Equity Pi^eading and Practice; 
 
 prove, the required jurisdictional facts; and the jurisdiction may 
 legally be exercised only in substantial compliance with the 
 statute — otherwise the case is coram non judice; and, in spite of 
 the consent or waiver of the defendant, any decree therein en- 
 tered, beyond dismissal of the bill, is void whenever and wher- 
 ever questioned.* 
 
 This is but an application of the familiar principle, that where 
 statute gives a new right, unknown to the common law, and 
 along with the right *prescribes the method of enjoying or en- 
 forcing the right, the statutory method is exclusive, and must 
 be followed substantially as given. 
 
 B. Active Jurisdiction. 
 
 § 19. Active jurisdiction — how acquired — waiver. — 
 
 Where potential jurisdiction exists, active jurisdiction, which, 
 as we have just seen, is the right actually to exercise the ju- 
 dicial function of hearing and determining a particular cause, 
 may be acquired in two ways : ( 1 ) By valid and compulsory 
 process of the court; and (2) By the voluntary submission of 
 the parties. 
 
 Since the process of the court is not effective beyond the 
 territorial limits of the sovereignty by which the court is cre- 
 ated, it follows that if neither the defendant nor the subject- 
 matter be within such limits, so as to become subject to the 
 court's process, the court, though possessing full power to deal 
 with controversies of that kind — in short, potential jurisdiction 
 — is unable to exercise its grant of power in the particular case, 
 and consequently is without active jurisdiction ; and the cause 
 must be dismissed, unless the defendant vdluntarily submits 
 himself to the jurisdiction. So, in any case where there is an 
 absence of proper process, legally served. 
 
 " Coleman v. ,Va. Stave Co., 113 iVa. i61; Brenham jy. Smith, 120 
 Va. 3011; Roberts v. Hagan, 121 Va. 573; Parker v. Stephenson, 
 127 I Va. 433; .Yates v. Yates, \supra; Blankenship v. Blankenship, supra; 
 Williamson v. Berry, 8 How. (U. S.), 495; Hoback v. Miller (W. Va.), 
 29 S. E. 1014; 'Roche i'. Nesters, V2 Md. 264, 7 L. R. A. 533; Cooper 
 V. Sunderland, 3 Iowa 114, 66 Am. Dec. 52; authorities supra. The 
 Federal courts exercise a 'special and limited jurisdiction as here de- 
 scribed. 
 
Jurisdiction U 
 
 Hence the methods of acquiring and exercising active juris- 
 diction, as prescribed by law, may, to a large extent, be modi- 
 fied or waived by the consent or voluntary appearance of the 
 defendant, without in anywise affecting the powers of the court 
 in the exercise of its potential jurisdiction. Consent may there- 
 fore, as a general rule, confer active hut not potential jurisdic- 
 tion.}'' 
 
 § 20. Active jurisdiction lacking — how objection made. 
 
 — Where the court, though possessing complete potential jurisdic- 
 tion, fails to acquire active jurisdiction of the defendant, or of 
 the particular res against which the proceeding is directed, in 
 the manner required by law — as by lawful service of process, by 
 proper attachment proceedings, or by a lawful summons by pub- 
 lication, or in such other form as may be required by law — any 
 judgment or decree rendered in such proceeding is without due 
 process of law, and therefore as completely invalid, and the pro- 
 ceeding as truly coram non. judice, as if the potential jurisdiction 
 itself were wanting. 
 
 In such case, as in that of the absence of potential jurisdic- 
 tion, the objection may be made informally by motion, or in 
 case of non-appearance of the defendant, the court will itself 
 raise the objection, if observed, and no formal plea is required. 
 The authorities are too abundant and uniform to require cita- 
 tion. " 
 
 II. Errors Not Affecting Jurisdiction. 
 
 § 21. Distinction between 'mere error' and lack of ju- 
 risdiction. — The student should carefully observe the distinc- 
 tion between a merely erroneous order or decree, due to a ju- 
 dicial misconception of the legal or equitable principles upon 
 which the rights of the parties depend — whether in the substan- 
 tive law of the case or in the rules of procedure, the court hav- 
 
 •° Moore v. |N. & IW. iR. Co., 134 Va. 638. 
 
 " See Wade v. Hancock, 76 Va. 630; Lavell v. McCurdy, 77 Va. 763; 
 Hilton W. Consumers' Can Co., 103 Va. 255; Mallory v. Virginia Colony 
 Feeble Minded, 123 Va. 305; Applegate v. Lexington, 117 U. S. 355, 
 270; Wilson v. Seligman, 144 U. S. 41; Scott v. Streepy, 73 Tex. 547, 
 11 'S. IW. 534. 
 
12 Equity Pleading and Practice 
 
 ing plenary jurisdiction of the parties and the subject-matter — 
 and, on the other hand, affirmative action by the court in a 
 cause of which it has no jurisdiction., either because the juris- 
 diction is inherently wanting, or has been improperly acquired. 
 The distinction, in result, is the distinction between a void and 
 a voidable judgment or decree. 
 
 Errors of the sort first named may render the action of the 
 court voidable; but until avoided, either by proceedings in the 
 same court or on appeal (of which more hereafter), the errone- 
 ous decree is valid and binding, and may not be questioned col- 
 laterally. ^^ 
 
 Errors of the second class, going as they do to the foundation 
 of the court's powers, render the whole procee'dings in the case, 
 not voidable only, but void. 
 
 III. Ultra Vires Orders and Decrees — 'Jurisdictional 
 
 Errors.' 
 
 § 22. Decree in excess of powers. — For its power to ad- 
 judge a cause, not only is the court dependent upon investiture 
 with both potential and active jurisdiction, but its powers are 
 further limited in extent and scope. That is to say, though pos- 
 sessing complete jurisdiction (potential and active) of the par- 
 ties and the subject matter, the court may yet go so far beyond 
 its prescribed or accustomed powers or methods as to render its 
 action, in that particular, as completely invalid as if potential 
 jurisdiction itself were lacking. Such errors as these the courts 
 are fond of designating "jurisdictional errors. "^^ 
 
 The border line between what are judicially termed "mere er- 
 rors," noticed in the preceding section, and "jurisdictional er- 
 rors" just noted, is not very well defined, and there is much 
 overlapping of the two classes of error.^* 
 
 " Neale v. Utz, 75 Va. 453. 
 
 " See Windsor v. McVeigh, 93 |U. S. 2T4, 282; Nulton v. Isaacs, 30 
 Gratt. 726, 740-742; Lavell v. 'McCurdy, 77 Va. 763; Lancaster v. 
 Stokes, 119 Va. 149. i 
 
 " "Jurisdictional error", as applied Ito this class of errors, is not a 
 happily chosen phrase. Ex hypothese, the court has complete jurisdic- 
 tion of the cause, and 'therefore power to declare the law of the case 
 (jus — dicere). The error into which the court has fallen, in so far 
 
Jurisdiction and Venue 13 
 
 IV. Jurisdiction and Venue. 
 
 § 23. (1) Potential jurisdiction and venue. — A discus- 
 sion of the venue, or the locality of suits, is deferred to the 
 succeeding chapter. But for the purpose of exhibiting the sharp 
 contrast between questions of jurisdiction and of venue, it may 
 be observed here, by way of anticipation, that the term venue 
 denotes the particular county or corporation in which a given 
 controversy is, in the first instance, properly triable. In short. 
 veyiue has to do with geographical or territorial considerations, 
 whereas jurisdiction is concerned with questions of inherent ju- 
 dicial pozver. 
 
 Thus, as already shown, every circuit and corporation court 
 in Mrginia (subject to a few statutory exceptions, to be noted 
 later), is invested with complete equity jurisdiction; and con- 
 sequently, so far as concerns questions of jurisdiction, every 
 such court has the power to hear and determine- any equity 
 cause brought before it — and this, without regard to the county 
 or corporation in which the parties reside, or the controversy 
 arose, or in which the subject matter is. 
 
 § 24. The same. — But in order to relieve a defendant from 
 the intolerable nuisance of being haled to a distant county and 
 compelled to submit the trial of his case to a court remote from 
 his residence, the statutes, as we shall see in detail later, have 
 assigned, with some minuteness the particular county or cor- 
 poration in which suits are to be brought — the county or the 
 corporation of the residence of the defendant, or of the locality 
 of the subject matter, or in which the cause of action arose, 
 being the preferred venue. 
 
 When, therefore, exception is sustained to the potential ju- 
 risdiction, the cause is in the wrong court; if sustained to the 
 
 transgressing its Jegitimate powers as to render its action wholly 
 invalid — as if the court, on a bill ior an injunction, should decree 
 that the defendant (or both plaintiff and defendant) be hanged — 
 seems more properly to touch the extent and scope of the court's 
 power, than its jurisdiction. The "term jurisdiction is a much abused 
 term at best — see, in corroboration, infra, §§ a9, 35. For sake of 
 clearer delimination, the phrase ultra vires is here used to indicate 
 the so-called jurisdictional error. See supra, § 21. 
 
14 Equity Pleading and Practice 
 
 venue, the cause is brought in the wrong county or corporation. 
 
 § 25. The same — more especially of venue. — The stat- 
 ute, then, investing all courts named, with plenary equity pow- 
 ers, is strictly a jurisdictional statute; but the statutes prescrib- 
 ing rules by which equity causes are to be, as it were, distrib- 
 uted territorially for hearing among the more than one hundred 
 equity courts of the State, are not in any sense statutes of juris- 
 diction, but of administration, only. These statutes of adminis- 
 tration, or venue, affect, not the powers of any court, but are 
 primarily addressed to the parties to particular controversies. 
 They do not confer jurisdiction on any court whatsoever. Aiid, 
 as they are meant largely for the benefit of the defendant (pre- 
 ferring as they do the defendant's home county or corporation), 
 the courts have construed them as merely conferring a privi- 
 lege on the defendant to insist upon the statutory venue — a priv- 
 ilege of which he is required to avail himself at a very early 
 stage of the proceeding by a plea in abatement. ^^ 
 
 § 26. (2) Active jurisdiction and venue. — The distinc- 
 tion between the potential jurisdiction of the court and the 
 venue of the suit, considered in the sections preceding, exists as 
 well in connection with the active jurisdiction and venue. As 
 already observed, the active jurisdiction is concerned with the 
 question whether the court has properly acquired the right and 
 power to compel the particular defendant to respond to its sub- 
 poena, and to obey proper orders and decrees rendered in that 
 particular controversy. On the other hand, the question of 
 venue concerns only the exercise of the privilege of the defend- 
 ant to insist, for example, upon the controversy being tried in 
 his own county or corporation — provided, and provided Only, 
 that he asserts his privilege by a plea in abatement at a very 
 early stage of the litigation. If not so asserted, the privilege is 
 lost, and the court will proceed to judgment.i^ 
 
 § 27. Mistake in venue — not jurisdictional. — Enough 
 
 '" Va. Code 1919, § 6105. See infra, §§ 26, 27. 
 
 '" In re Moore, 209 U. S. 490. The distinction here is admirably- 
 discussed by iSims, J., in Moore v. N. '& W. R. Co., 124 Va. 628. 
 
Jurisdiction and Venue 15 
 
 has been said to indicate that a mistake or error in the venue is 
 in no sense jurisdictional. Even if the objection be timely made, 
 an error of the court in overruling the objection would be a mere 
 error, and the judgment or decree valid until reversed by proper 
 proceeding on appeal, or otherwise. 
 
 So, on the other hand, it has sufficiently appeared that a mis- 
 take in the jurisdiction, potential or active, is fatal and no right 
 or protection whatsoever may be predicated thereon. ^'^ 
 
 § 28. The same — exception to rule that mistake in 
 venue is not jurisdictional. — It has already been pointed 
 out 18 that where the court is proceeding under a special statu- 
 tory and limited jurisdiction, unknown to the common law, then 
 any substantial departure from the course of procedure specifi- 
 cally prescribed by the enabling statute, will invalidate the judg- 
 ment. The statutory right must be enforced substantially by 
 the statutory remedy. It follows that if the statute giving the 
 right prescribes a particular venue, the venue and the jurisdic- 
 tion become coterminous ; and therefore a mistake in the one 
 becomes a mistake in the other, with all the consequences here- 
 tofore noted.i® 
 
 V. Plea to the Jurisdiction. 
 
 § 29. Plea to the jurisdiction — (1) potential. — The 
 
 Virginia statute ^o declares that where the . . . bill shows 
 on its face proper matter for the jurisdiction of the court" [i. e., 
 potential jurisdiction] "no exception for want of jurisdiction 
 shall be allowed unless it be taken by plea in abatement." ^^ 
 
 " McDonald v. Mabee, 243 U. S. 90; authorities supra. 
 
 " Supra, § 18. 
 
 "" Examples 'would be suits for sale of lands of infants and lunatics: 
 Brenham v. Smith, 120 Va. 30; Roberts v. Hagan, 121 Va. 573;- 
 divorce suits: Blankenship v. BJankenship, 135 Va. 595; 'enforced sale 
 of real property in partition proceedings: (Roberts v. Hogan, supra — 
 all of which (are statutory rights with prescribed statutory remedies. 
 See post, Suit for Partition; Sales of Infants' ]Lands; Divorce ; post, § 29. 
 
 " Code 1919, § 6105. ' ■ 
 
 ^ With the further provision that "no * * * pjgj^ jjj abatement 
 shall be received after ithe defendant has demurred, pleaded in bar, 
 or anwsered to the * * * bill, nor after the second rulles subse- 
 quent to the (service of process on 'Such defendant." Id. 
 
16 Equity Pleading and Practice 
 
 It seems clear that the term jurisdiction here is inaptly used 
 as denoting z'enue only, since, as we have seen in the foregoing 
 discussion of jurisdiction, if the court is in fact without poten- 
 tial jurisdiction, the defect cannot be supplied by waiver or 
 consent. Mere failure to plead in abatement therefore — thus 
 waiving the objection — cannot confer a jurisdiction which the 
 court cannot under its own constitution, under any circum- 
 stance, exercise. 2^ 
 
 § 30. The same — (2) actiye jurisdiction. — ^The same 
 principle is applicable where the objection goes to the active 
 jurisdiction. If the court, howsoever general its jurisdiction, 
 has not properly acquired jurisdiction of the particular defend- 
 ant or subject matter — because, for example, of the failure to 
 serve process, or service of an invalid process — there is a com- 
 plete absence of jurisdiction of that particular cause, and the. 
 cause is as completely coram non judice as if potential jurisdic- 
 tion were itself wanting. ^s 
 
 But as the defect of jurisdiction here may be waived, a gen- 
 eral appearance and pleading to the merits would operate as 
 such waiver.2* If the defendant appears, therefore, he should 
 do so specially. But having appeared specially, he may make 
 the objection by mere motion, without pleading in abatement. 
 If he does not apoear at all, a judgment by default would be 
 invalid because of the fatal defect of jurisdiction. 
 
 It seems clearly to follow that the statute quoted, declaring 
 
 " Deatrick v. State Life Ins. Co., 107 Va. 602. Where the juris- 
 diction is ia limited and statutory one, a plea may become necessary 
 to traverse the jurisdictional allegations, but, as already pointed out 
 {supra § 28), such a plea is in har land not in .abatement. Jurisdic- 
 tion of suits for divorce, for example, exists only where one of the 
 parties has been domiciled in this state for |one year. If the till al- 
 leges (as it must) the required period of domicile, the jurisdiction 
 -may be assailed by a plea or answer denying that jurisdictional al- 
 legation. Such a plea however, would not be in abatement, but in 
 bar. It could not give the plaintiff ia better writ. Even in absence of 
 any plea, in abatement or in bar, the court must decline the [jurisdic- 
 tion and dismiss the bill, on failure of plaintiff to establish, affirma- 
 tively, the necessary jurisdictional facts. Yates v. Yates, 115 Va. 
 678; Blankenship v. 'Blankenship, ]25 Va. 595. 
 
 " An exception is made by Va. Code 1919, § 6103 — where a mere 
 defect in the return must be pleaded in abatement. 
 
 " See infra, § 31. 
 
Jurisdiction — Special Appearance 17 
 
 that no exception to the "jurisdiction'' shall be allowed unless 
 taken by plea in abatement, has reference solely to the venue, 
 and that the term jurisdiction here denotes venue and nothing 
 more. 2^ 
 
 § 31. Exceptions to jurisdiction — special appearance. 
 
 Where the exception goes to the potential jurisdiction of the 
 court, it is immaterial whether the defendant appears generally 
 or specially. As the objection cannot be waived expressly, a 
 fortiori is an implied waiver by a general appearance ineffectual 
 for any jurisdictional purpose. 
 
 Where, however, exception is to be made to the active juris- 
 diction, the right to such exception will be waived by a general 
 appearance and pleading to the merits. Even appearance for 
 purposes of exception to the (active) jurisdiction only, without 
 more, if the purpose be not made clear, may be taken as a gen- 
 eral appearance, operating as a waiver. Hence it is always 
 safer, in such cases, for counsel to advise the court that the ap- 
 pearance entered is special and not general. ^^ 
 
 § 32. Contrast between jurisdiction and venue — re- 
 sume. — To sum up the several distinctions between jurisdic- 
 tion and venue : 
 
 1. Jurisdiction connotes the powers of the court — venue the 
 place of suit. 
 
 '^ This statute |has existed, practically in this form, in Virginia, 
 since the Code of 1849, and probably from an earlier period. It has 
 been very generally inisunderstood by the profession, and has been 
 the source of much litigation — due largely to the unhappy use of the 
 term jurisdiction where ]uenue is meant. It is believed, after an exami- 
 nation of a large number of cases, that it has uniformly been applied 
 as embracing venue only — though Irather by interpretation implied 
 than express. So far as known, in no case has. the court held, in the 
 plain language of this note, that the term jurisdiction here denotes 
 venue only, and that it is only objection to the venue that is required 
 by this section to be pleaded in abatement. But there seems no es- 
 cape from the conclusion. 
 
 " See Rhode Island v. Massachusetts, 12 Pet. 657; Central Transp. 
 Co. V. McGeorge, 151 U. S. 129; Goldey v. Morning News, 156 U. S. 
 518 — special appearance to object to the service of the "process, and 
 for motion for removal to Federal court; Wabash, etc., R. Co. v. 
 Brow, 164 U. S. 281; Hitchman, etc., Co. v. Mitchell, 245 U. S. 229; 
 Hilton V. Consumers' Can Co., 103 Va. 255. 
 
18 Equity Pleading and Practice 
 
 2. Jurisdiction is a question of law — venue is a question of 
 fact to be established by testimony. 
 
 3. Jurisdiction must appear from the allegation of the bill 
 — venue need not so appear. 
 
 4. Jurisdiction (potential) may not be conferred by consent 
 — venue may. 
 
 »5. Error in jurisdiction is fatal — error in venue, not pleaded 
 in abatement, is harmless. 
 
 6. Exception to the jurisdiction may be made by demurrer or 
 plea or answer, or orally, or by the court ex mero motu — 
 exception to the venue may be made by plea in abatement 
 only. 
 
 7. Jurisdiction (potential) conten::5plates subject-matter only 
 • — venue contemplates locality only; error in the one is in 
 the selection of the court — in the other in the selection of 
 the place. 
 
 8. Jurisdiction is essential to confer venue; but venue is not 
 essential to jurisdiction. 
 
 The foregoing comparison between jurisdiction and venue, 
 enables us to reconcile the apparently conflicting principles con- 
 stantly recurring in the books, namely, the rule that "consent 
 cannot confer jurisdiction," an-d the rule that "objection to the 
 jurisdiction must be pleaded in abatement, at any early stage of 
 the proceeding." 
 
 VI. Jurisdiction as between Law and Equity. 
 
 § 33. Equity exercising common law jurisdiction. — 
 
 Notwithstanding the principle announced, that the decree of a 
 court without potential jurisdiction is null and void, this result 
 does not follow from the mere circumstance that in the exercise 
 of its concurrent jurisdiction, a court of equity has erroneously 
 taken jurisdiction of a cause regularly brought before it, but 
 properly cognizable only in a common law court. The proceed- 
 ings would be erroneous, and liable to be set aside on appeal, 
 but would not be void nor subject to be questioned collaterally ^'^ 
 
 ^ 1 Pom. Eq. Jurisp. 131; Lemmon v. Herbert, 92 Va. 653; Goodman 
 V. Winter, 64 Ala. 410'; Mellen v. Moline, 131 U. S. 352, 367. 
 
Jurisdiction 19 
 
 no more than would the judgment of a law court be void be- 
 cause the court had inadvertently recognized an equitable claim 
 or defense. A fortiori is this result true where, as in Virginia 
 and in the Federal System, the two jurisdictions of law and 
 equity are vested in the same court, though exercised separately. 
 The court, however, will itself take note of the error in the 
 choice of the forum, if observed, and waiver or consent of par- 
 ties will not cure the error so long as the case is sub judice, even 
 in the appellate court. ^^ 
 
 § 34. Action at law erroneously brought in a court of 
 equity — transfer. — By the original equity practice, a suit 
 brought in equity but properly cognizable at law only, or vice 
 versa, could not be transferred to the proper court— or to the 
 proper side of the court, even where both jurisdictions were ex- 
 exercised 'by the same court — but must have been dismissed, and 
 the suit brought de novo in the proper court. 
 
 Recent statutes have wisely altered this rule, both in the Fed- 
 eral and the Virginia practice — ^provision being made for trans- 
 fers from the equity to the law court, or vice versa.^^ 
 
 VII. Presumption oi? Jurisdiction. 
 
 § 35. Jurisiiclion — confusion in use of term.-Some ci 
 the confusion of thought resulting from the use of the term ju- 
 risdiction to represent many different situations, has already 
 been adverted to. Courts and commentators have utilized it to 
 designate the general powers of the court under its constitution 
 (j. e. its potential jurisdiction) ; again, as including the methods 
 by which the court has proceeded in acquiring and exercising 
 its conceded jurisdiction in a particular case (t. e. the active ju- 
 risdiction) ; again, as importing venue; again, as applicable to 
 judgments and decrees of the court, in excess of its conferred 
 powers; and, finally, as embracing the right, as between a court 
 of equity and a court of law, to try a particular case. 
 
 ^ Stuart V. Coalter, 4 Rand. 78; Boston Blower Co. v. Carman 
 Lumber Co., 94 Va. 94; Oelrichs v. Williams, 15 Wall. 211. 
 
 ^ Equity Rule 22; Va. Code 1919, § 6084; Carle v. Corhan, 127 Va. 
 323. 
 
20 Equity Pleading and Practice 
 
 Unless, therefore, attention is paid to the precise sense in 
 which this overburdened expression is used in the particular 
 statute or judicial opinion, or text, in which it is encountered, 
 the student will find difficulty in groping his way through the 
 medley of apparently conflicting statements of the principles in- 
 volved. 
 
 § 36. Presumption of jurisdiction — in general. — In view 
 of what has been said in the preceding section, the statement, 
 common in the authorities, that, nothing to the contrary ap- 
 pearing, a judgment or decree of a court of general jurisdiction 
 will be presumed to have been within the jurisdiction, and that 
 the jurisdiction has been regularly and validly exercised, needs 
 qualification. The question can best be studied by distinguish- 
 ing the senses in which the expression jurisdiction is used in 
 the cases in which this presumption has been judicially ex- 
 pounded and applied. 
 
 Obviously the presumption, whatever it be, is appealed to, not 
 while the case is sub judice in the court that rendered the judg- 
 ment or decree, but when the validity of the judgment or decree 
 is assailed on appeal, or in a collateral proceeding. 
 
 § 37. Presumption of jurisdiction — (1) Potential. — 
 
 Since the powers of a court of general jurisdiction are definitely 
 fixed by its constitution — that is, by the unwritten law and en- 
 abling statutes — and since the question of jurisdiction here is 
 one of law simply, to be determined from the nature of the case 
 made in the plaintiff's dtclaration or bill — there is no need or 
 room for presumption in aid of the. jurisdiction, unless perhaps 
 where the record has been lost or destroyed, or is otherwise not 
 accessible. A simple inspection of the record determines the 
 question. For example, as before shown, the circuit and cor- 
 poration courts of Virginia, are courts of general jurisdiction, 
 having cognizance of all cases at law or in equity. If the judg- 
 ment or decree assailed, were entered by one of these courts, in 
 a case at law or in chancery, in the exercise of law or chancery 
 jurisdiction (that is, according to the course of the common law) 
 the potential jurisdiction, appears, and must appear, from the 
 nature of the cause, as shown on the record, and no presump- 
 
Jurisdiction — Presumption 21 
 
 tions are needed or are to be indulged, in aid of such jurisdic- 
 tion. 
 
 § 38. The same — (2) Active jurisdiction. — It is in con- 
 nection with the active jurisdiction that this presumption of the 
 regularity of judicial proceedings, and the validity of judg- 
 ments and decrees, is most frequently appealed to, and is most 
 effective. Assuming the court to be one of general jurisdiction, 
 and in the exercise of such general jurisdiction, its judgment or 
 decree, when assailed, in another proceeding, or in the same 
 case on appeal, and nothing appearing to the contrary, is pre- 
 sumed to be valid, and its' procedure to have been regular. This 
 is but the application of the familiar maxim omnia praesumun- 
 tur rite esse acta.^° 
 
 § 39. The same — (3) Statutory or limited jurisdiction. 
 
 — But where the court, even though one of general jurisdiction, 
 has entered a judgment, decree or other order, in a summary or 
 statutory proceeding, and not in. the course of the common law 
 under its general jurisdiction, such judgment, decree or order, 
 when assailed in another proceeding, or on appeal, will not be 
 aided by the presumption of the court's having properly ac- 
 quired and exercised the limited jurisdiction bestowed. Here 
 the record must itself show that the conditions of fact essential 
 to the jurisdiction were established, (this, tantamount to poten- 
 tial jurisdiction) ; and, further, that all specially required forms 
 of procedure, not in the course of the common law, were ob- 
 served. 
 
 But, the potential jurisdiction established, and having prop- 
 erly proceeded to acquire the active jurisdiction in the particu- 
 lar cause, and to exercise it according to the prescribed statutory 
 requirement, all of which must affirmatively appear, the court's 
 further action in so far as strictly judicial and not ministerial, 
 
 *■ See authorities supra, passim; Baker v. Vorhees, 10 Pet. 472; -Ap- 
 plegate v. Lexington Min. Co., 117 U. S. 255; Shelton v. Sydnor, 126 
 Va. 625, 632; 15 C. J. 827 et seq. 
 
22 Equity Pleading and Practice; 
 
 will be entitled to the benefit of the maxim omnia praesumun- 
 
 § 40. Decree reciting jurisdictional facts. — As already 
 indicated, the facts essential to invest the court with complete 
 potential jurisdiction must, ex necessitate, appear on the record, 
 and generally, if not always, on the face of the bill. 
 
 But in other cases, as on the question whether process was 
 duly served, whether there was appearance by the defendant, or 
 of other proper steps in maturing and trying the cause (i. e. 
 questions of the active jurisdiction), a recital of such facts in 
 the decree is held, as a general rule, to be as binding on the par- 
 ties as any other fact adjudicated in the cause.^^ 
 
 *" See Galpin v. Page, 18 Wall 370; Dinwiddie County v. Stuart, 38 
 Gratt. 536; Pulaski County v. Stuart, 28 Gratt. 782; supra, § 18, and 
 authorities cited. 
 
 " See Craig v. Sebrell, 9 Gratt. 131; Moore v. Holt, 10 Gratt. 284, 
 291; Shelton v. Sydnor, 126 Va. 635; Barrey v. Saunders, 14 How. 
 535; Baker v. rVoorhees, 10 Pet. 472; cases collected 15 C. J. 831 
 et seq. Compare Cooper v. Newell, 173 U. S. 555. As to conclusive- 
 ness of sheriff's return on the process, see Preston v. Kindrick, 94 
 Va. 760; Miedrick v. Lovenstein, 232 U. S. S36; 3 Va. Law Reg. 435; 
 54 Am. 'St. Rep. 2,45, n; Lile's Notes on Equity Jurisp. 244-245; post, 
 §§ 65-67. 
 
Jurisdiction — In Rem — In Personam 23 
 
 CHAPTER III. 
 
 Jurisdiction, continued. 
 
 II. In Personam-^In Rem. 
 C. Jurisdiction in Personam. 
 
 § 41. Jurisdiction in personam. — By this phrase is meant 
 jurisdiction of the person of the defendant, as distinguished 
 from the thing which constitutes the subject-matter of the con- 
 troversy. We have already seen that active jurisdiction cannot 
 be exercised unless one or the other of these is within the reach 
 of the court's process ; and that, in the absence of express re- 
 strictions, the process of every court of general jurisdiction is 
 effective throughout the territorial limits of the state whose au- 
 thority it exercises, but not beyond. 
 
 Thus, in the absence of express statutory restrictions, procesf 
 from a Virginia court is effective throughout Virginia, but can- 
 not be effective in any other state without the latter's consent ; 
 and no state is likely to consent to such an invasion of its sov- 
 ereignty. Hence process from a Virginia court cannot operate 
 as personal service when served on a defendant in another state. 
 But when properly served on the defendant within the home 
 state, the court acquires jurisdiction in personam. It is a fun- 
 damental principle that without such jurisdiction in personam 
 no valid personal judgment or decree can be entered against any 
 defendant.. Such a proceeding would be without due process of 
 law.i 
 
 ' Pennoyer v. Nefl,..95 U. iS. 714; Baker v. Baker, Eccles & Co., 242 
 U. S. 1394; Johnson v. Merritt, 125 Va. 162; DeArman v. Massey, 150 
 Ala. 639, 44 So. 688. Divorce proceedings are regarded as directed 
 rather against the civil status of the parties than against the defend- 
 ant personally, and are hence quasi in rem. 2 Bishop. Mar. Div. and 
 Sep. §§ 23-27. Mere ownership of property within the state does not 
 confer personal jurisdiction over the owner. And the question is one 
 
24 Equity Pleading and Practice 
 
 D.. Jurisdiction in Rem. 
 
 § 42. Jurisdiction in rem. — Where jurisdiction of. the 
 person is thus lacking, but the subject matter of the litigation is 
 within the state, and therefore subject to the process of the 
 court, the court is then said to have jurisdiction in rem, or quasi 
 in rem. 
 
 In order that this jurisdiction in. rem may be efifectively exer- 
 cised, it is essential to due process of law that the proceeding be 
 primarily in rem or quasi in rem, and not merely against the de- 
 fendant personally. Such a proceeding must be directed specifi- 
 cally against the property itself, with the purpose of having the 
 res directly affected by the decree of the court. 
 
 Examples of such proceedings are: suits to enforce subsist- 
 ing liens, such as mortgages, mechanics' liens or judgments; 
 suits to remove clouds from title to property; suits to recover 
 possession of property, or to establish or enforce a trust therein ; 
 attachment proceedings ; creditors' bills, divorce proceedings, 
 etc.2 
 
 § 43. The same— order of publication. — In cases such 
 as these (i. e. in rem), where there can be no personal service 
 by reason of the defendant's non-residence, the statutes of all 
 the states permit citation of the defendant by publication of the 
 summons in a prescribed newspaper, or (in Virginia as an al- 
 ternative) by personal service in the foreign state.^ 
 
 § 44. Order of publication— effect of the decree.— It 
 
 has long been settled that no personal judgment or decree can be 
 had against a non-resident, or against any defendant beyond the 
 
 of jurisdiction, not of notice, so that it is immaterial that the non-resi- 
 dent defendant had notice of the proceeding and an opportunity to 
 make defense. DeArman v. Massey, supra; Harkness f. Hyde, 98 U. 
 S. 476; Scott V. Streepy, 73 Tex. 547, 11 S. W. 534. 
 
 In addition to in rem proceedings against the property of non-resi- 
 dents, similar in rem or quasi in rem iproceedings are common against 
 resident defendants, though in such cases the proceedings are normally 
 in personam as well — so that personal service of process substitutes 
 the service by publication. See infra, n. 4. 
 
 ' Roller V. IHolley, 176 U. S. 398, and cases supra. 
 
 ' Va. Code 1919, §§ 6069-6071. 
 
Jurisdiction — In Rem — In Personam 25 
 
 territorial jurisdiction of the court, on summons served by 
 publication, or personally served beyond the limits of the home 
 state, unless the defendant voluntarily appears and submits to 
 the jurisdiction. It is an equally settled principle that in a pro- 
 ceeding in rem, or quasi in rem, as described above, properly 
 brought and conducted in accordance with the local statutes, the 
 decree will effectually bind the res against which the proceeding 
 is, but no further. 
 
 It follows that if a non-resident own property in Virginiu in- 
 cumbered by a mortgage or other lien, the creditor may enforce 
 his lien against such property, on a summons by publication 
 against the debtor. So, where there is no lien, bi: the creditor 
 institutes proper attachment proceedings against his debtor's 
 property within the jurisdiction, he may subject the attached 
 property to his debt. But it is important to observe that the 
 judgment or decree in such proceeding binds only the property 
 actually proceeded against, and no other, and never the person 
 of the defendant who has not voluntarily appeared in response 
 to the published summons. The owner of property is presumed 
 to be in possession of it, in person or by, agent, and when such 
 proceedings are taken against his property the defendant is pre- 
 sumed, for the purposes of that suit, and so far {and so far 
 only) as that particular property is concerned, to have notice of 
 the proceedings when summoned by order of publication.* The 
 proceeding partakes somewhat of the nature of condemnation 
 proceedings. 
 
 The statute makes provision for two years of grace within 
 which defendants summoned by publication and not appearing, 
 may have the cause reheard, and any resulting injustice cor- 
 rected. 
 
 * Pennoyer v. Neff, 95 U. S. '714; Roller v. HoUey, 176 U. S. 398. 
 "Can the Island of Tobago pass a law to bind the rights of the whole 
 world? Would the world submit to Isuch an accursed jurisdiction?" 
 — Lord Ellenborough, in Buchanan v. Rucker, 9 East R. 191. See 
 Johnson v. Merritt, \supra; 33 Harvard Law Review, 870. If the de- 
 fendant is a resident, and within the state — or a domestic corporation — 
 an order of publication, under statutory authority, is much more 
 eflfective. See A. S. White & Co. v. Jordan, 134 Va. 465. 
 
26 Equity Pi^Eading and Practice 
 
 B. Bxterritorial Jurisdiction. 
 
 §, 45. Exterritorial jurisdiction. — The familiar maxim 
 that equity deals with the individual is in a large measure the 
 key to the principles by which equity is governed in dealing with 
 an exterritorial res. The general rule is that if equity has per- 
 sonal jurisdiction of the parties, it may exercise jurisdiction of 
 controversies between them though concerning exterritorial 
 property, real or personal. Since the decree in such case is bind- 
 ing on the conscience of the defendant and since the defendant is 
 within the range of the court's process, he may be compelled, 
 by the process of contempt, to obey the decretal mandate of the 
 court, even though that require the delivery or conveyance of 
 exterritorial property, real or personal." 
 
 § 46. The same — exception. — The rule just stated, that 
 it is sufficient for the purpose of adjusting controversies con- 
 cerning exterritorial property, that equity has jurisdiction of the 
 individual, is subject to an exception where the nature of the con- 
 troversy requires that the court deal directly with the res itself. 
 In such cases equity will usually decline the jurisdiction. 
 Examples of such instances are suits for partition ^, sales of in- 
 fants' land '', and injunctions against trespass on lands, nui- 
 sances, etc.* 
 
 ' Vaught V. Meador, 99 Va. 569, fT Va. Law Reg. 341, n; Hotchkiss 
 V. Middlekauf, 96 Va. 649, n. 33 I,. R. A. 294; Newton v. Bronson, 
 13 N. Y. 587, 67 Am. Dec. 89, monographic note. 
 
 ".Poindexter v. Burrell, ;82 Va. 507. 
 
 ' Hotchkiss z'. 'Middlekauf, supra. See Am. Banking Co. v. Am. 
 Surety Co., 137 Va. 309. I 
 
 ' Northern, etc., R. Co. v. Michigan Central, etc., R. Co., 15 How. 
 (U. iS.) 333; Z L. C. E. 1817-1832. 
 
Venue 27 
 
 CHAPTER IV. 
 
 Venue, or Place of Suit. 
 
 § 47. Venue statutory. — The venue or place of suit, with- 
 in a particular state, is always a matter of statute law. 
 
 In Virginia detailed provision is made with reference to the 
 particular county or corporation in which suits may be brought. 
 
 § 48. Venue of chancery suits in Virginia — We cannot 
 here go into the detailed provisions of the statute, but must be 
 content with a bare outline. The statute ^ provides that "any ac- 
 tion at law or suit in equity,'' except where it is otherwise spe- 
 cially provided, may be brought in any county or corporation: 
 
 (1) Wherein any of the defendants may reside. 
 
 (2) If a corporation be a defendant, (a) where its principal 
 office is; or (b) wherein the ma.yor, rector, president or other 
 chief officer resides. 
 
 (3) If it be to recover land, or to subject it to a debt, then 
 the proceeding may be in the county or corporation wherein 
 such land, or any part thereof, may be. 
 
 (4) Special provision is made for suits against insurance 
 companies, foreign corporations,, non-presidents, and suits in 
 which the commonwealth or certain public officers are parties de- 
 fendant. 
 
 (5) It is further provided that an action or suit may be 
 brought in any county or corporation wherein the cause of ac- 
 tion, or any part thereof, arose, although none of the defendants 
 reside thereiu.^ 
 
 § 49. The same — provisions cumulative. — It is impor- 
 tant to observe that the several provisions of this statute are, in 
 the main,, cumulative, and not exclusive of each other. For ex- 
 
 ' Va. Code 1919, § 6049. 
 " Id. § 6050. 
 
28 Equity Pi^Eading and Practice 
 
 ample, a suit to subject land to the lien of a judgment may be 
 brought under provision (1) "where any of the defendants re- 
 side," or under provisions (3) "where the land may be." ^ 
 
 § 50. Mistake in venue. — If suit be instituted in any 
 county or corporation contrary to the foregoing regulations, the 
 objection will be, in general, not that the court in which the suit 
 is thus erroneously brought is without jurisdiction, but merely 
 that there is an error of venue — that is, that the defendant is 
 sought to be deprived of the personal privilege of having the suit 
 brought and tried in some other locality. It is an objection that 
 may be waived, as already shown,* and, is waived unless the de- 
 fendant pleads in abatement at an early stage of the proceed- 
 ing.^ 
 
 Numerous other special provisions with reference to venue of 
 particular suits will be noticed as these suits are encountered in 
 later sections of the volume.* 
 
 § 51. Venue continued — in the Federal courts. — The 
 
 particular locality in which suits in the Federal courts are to be 
 brought is fixed by the Federal statutes. For the details of 
 these statutory provisions, re;ference must be had to the statutes 
 themselves. 
 
 For general purposes of venue, however, it may be said that 
 the Federal Judicial Code distinguishes between cases in which 
 the jurisdiction is based on the ground (1) of diverse citizen- 
 ship, and (2) not on grounds of diverse citizenship. In the for- 
 mer case (subject to numerous exceptions) the suit may be 
 brought either in the district where the defendant resides or that 
 
 ' Harrison v. Wissler, 98 Va. 597; 6 Va. Law Reg. 471. 
 
 ' Supra, §§ 22-30. 
 
 ' Va. Code 1919, § 6105; Moore v. N. & W. 'R. Co., 124 Va. 528; 
 In re Moore, 209 U. S. 490. A different principle applies where a new 
 right is given by /statute, and a particular court or a limited venue, or a 
 specific remedy or procedure, is prescribed for the enforcement of the 
 right. Here the right and the remedy' go together, and the question 
 of venue becomes one of jurisdiction. Supra, § 18. 
 
 ' See post, chapters on Divorce, Injunctions, Sales of Infant's Lands,. 
 Partition, etc. 
 
Thb Process 29 
 
 in which the plaintiff resides. In the latter case the proper 
 venue is the district in which the defendant resides^ 
 
 CHAPTER V. 
 
 Process to Commence the Suit. 
 
 § 52. Process in equity courts — its nature. — In the 
 
 common law courts the process to begin the action varies with 
 the nature of the action. If this be debt, or assumpsit, or cov- 
 enant, the process or writ is likewise in debt, assumpsit, or cov- 
 enant, as the case may be. 
 
 In equity, however, the process is uniformly a subpoena, or 
 summons, requiring the defendant to appear and make defense 
 "to a bill in chancery filed against him," with no further indi- 
 cation of the nature of the suit.^ 
 
 § 53. The same — when issued.— Under the original eq- 
 uity practice the subposna comXA be had only on the filing the bill 
 of complaint, in which were set forth the demands of the plain- 
 tiff, and in which was a prayer for the issuance of the writ. 
 
 In Virginia, while the writ fnay issue after the bill is filed, it 
 is common practice, sanctioned by statute,^ to issue the process 
 in advance of the filing of the bill — the latter being filed only 
 at the return day of the process. 
 
 In the Federal courts, the process cannot be had until after 
 the filing of the bill.^ 
 
 § 54. The same — injunction suits. — Where preliminary 
 action by the court is required, as in the case of applications 
 for preliminary injunctions or appointment of receivers, of 
 course the bill, even in Virginia, must be filed before such 
 
 ' Judicial Code, § 51. For an instructive exposition see Prof. Dobie, 
 Venue in the United States District Court, 3 Va. Law Review, 1. 
 ' See form, infra, § 63. 
 ' Va. Code 1919, §§ 6061, 6078. 
 • Equity Rule 12. ' 
 
30 Equity Pleading and Practice 
 
 preliminary action can be had, since the court or judge could 
 not grant the injunction, or take other preliminary action de- 
 sired, without knowledge of the case made in the bill. And as 
 the injunction order is usually endorsed on or attached to, and 
 served along with, the subpoena, it follows that in such suits 
 the bill is always filed before issuance of the process. 
 
 § 55. Process continued — how and by whom issued. — 
 
 The subpoena is issued by the clerk of the court in which the 
 suit is instituted, on the written order of plaintiff's counsel. 
 
 § 56. The same — the memorandum or praecipe. — For 
 
 his own protection, the clerk requires that counsel who apply 
 for the issuance of process shall enter a written order for the 
 desired process, in a book kept for the purpose. This order is 
 known as the "memorandum" or "praecipe," and the book (in 
 Virginia) as the "memorandwm book." 
 
 This memorandum is only for the guidance of the clerk, and 
 is no part of the record in the cause. It should contain all data 
 necessary for making out the desired process — such as the names 
 of all the parties plaintiff and defendant; the rule-day or other 
 day to which the process is to be made returnable ; the county 
 or corporation in which the several defendants reside, so that 
 the clerk may be able to direct the process to the proper officers 
 for service; who, if any, of the defendants are infants, or luna- 
 tics, or non-residents, with proper directions for the appoint- 
 ment of a guardian ad litem for those under disability ; and for 
 an order of publication against the non-residents. If the suit is 
 to be accompanied by an attachment or injunction, directions 
 should be given as to the property to be attached, and as to the 
 service of the injunction. The memorandum should contain such 
 other details and directions as the particular case may demand, 
 and should be signed by counsel. 
 
 The following form will serve as a specimen : 
 
 Form of Memorandum. 
 
 Hiram Higgins, in his own right and as executor of Joseph M. 
 Higgins, deceased, v. Sallie T. Higgins; Mary H. Smith (who 
 was Higgins) and James R. Smith, her husband; Ann C. Rose 
 
The Process — Service 31 
 
 (who was Higgins) and Samuel L. Rose, her husband; the 
 Richmond Trust Company, a domestic corporation whose chief 
 office is in Richmond ; Mariah E., WilHam Q. and Thomas W. 
 Brooks, infant children of Ella H. and John B. Brooks, both 
 deceased; Joshua S. Thompson, administrator of Robert H. 
 Simpson, deceased, and Philip W. Simpson, a non-resident of 
 Virginia, whose post-office address is 321 Chestnut Street, Phila- 
 delphia, Pa. 
 
 Issue subpcena in chancery against all defendants (omitting in- 
 fants) to the sheriff of Albemarle county, with the following ex- 
 ceptions : Richmond Trust Company to the sergeant of the city 
 of Richmond ; order of publication * against Philip W. Simpson, 
 a non-resident, in Charlottesville Progress. Appoint Albert S. 
 Boiling, guardian ad litem for the infant defendants. 
 
 December 1, 1921. 
 
 Wai,ker & Platt, 
 , For plaintiff. 
 
 § 57. Process continued — how served. — In Virginia, 
 service of process is made by the sheriff of the county or ser- 
 geant of the corporation in which the service is made; or (save 
 in divorce suits) service may be made by a private individual if 
 verified by affidavit.'' 
 
 The method of service is by delivering a copy of the process 
 to the defendant in person. Further provision is made for con- 
 structive service, as by delivery to defendant's wife, etc., as in 
 the case of process from a common law court. 
 
 In the Federal courts service is made by the marshal or his 
 deputy or by a private individual appointed by the court for the 
 purpose.® 
 
 § 58. The same — when and where returnable. — In Vir- 
 ginia, process in chancery suits is placed by the statute, and 
 
 * Counsel should himself prepare the order of publication, to as- 
 sure himself that it conforms strictly to the provisions of the statute, 
 instead of delegating this important document to the clerk as is com- 
 monly jdone. 
 
 ' Va. Code 1919, §§ 60.41-6043, 6062. 
 
 " Equity Rules 13, 15. 
 
32 Equity Pleading and Practice 
 
 by the prevailing practice, on all fours with process in actions 
 at law, as well to issuance and service as to the return thereof J 
 
 § 59. Process continued — infant or insane defend- 
 ants. — The rule denying infants or insane defendants the privi- 
 lege of appearing in a court of law in person, or by attorney, is 
 equally applicable to courts of equity. Hence, while such de- 
 fendants are sued in the same manner as persons sui juris, yet 
 after the bill is filed no further proceedings can be had against 
 them until a guardian ad litem is appointed to represent their 
 interests in the suit. 
 
 In Virginia the appointment may be made by the court or the 
 clerk, and the appointee must be a competent and discreet at- 
 torney at law, if one can be found willing to serve. In the Fed- 
 eral courts the appoinitment is made by the judge or court.* 
 
 § 60. The same — service on infants and lunatics. — In 
 the absence of statute declaring otherwise, it is always safer 
 (perhaps necessary) to serve process on infant and. lunatic de- 
 fendants. 
 
 In Virginia, the statute declares in terms that where a guard- 
 ian ad litem is regularly appointed, there need be no service of 
 process on either infant or insane defendants.®' 
 
 But in order that the infant or lunatic may thus become, con- 
 structively, a party to the suit, and bound by the proceedings, it 
 is essential that the guardian ad . litem enter his appearance by 
 answer or otherwise. On the failure of the guardian ad litem 
 thus to enter appearance, the infant or lunatic is not properly a 
 party to the suit, and hence the proceedings are invalid as to 
 him." 
 
 § 61. The same— personal judgment. — Where a per- 
 sonal judgment or decree is desired, as distinguished from a 
 decree disposing of the incompetent's property {in rem), per- 
 
 ' See Va. Code 1919, §§ «055-6056. As to the method of summon- 
 ing defendants, resident or non-resident, by publication, see Va. Code 
 1919, § 6068. As to return of process in the Federal Courts, see Equity- 
 Rule 12. 
 
 • Va. Code 1919, § 6098; Fed. Equity Rule 70. See Suits against 
 Infants, infra. 
 
 ' Va. Code 1919, § i6098. 
 
 ■° Jeflfries v. Jeffries, 123 Va. 147. 
 
Thb Process 33 
 
 sonal service seems essential, in spite of statutory provisions to 
 the contrary. 11 Though the infant or kinatic be incapable of 
 understanding the import of process so served, service will at 
 least apprise his friends, or others in whose charge or custody 
 he may be. 
 
 § 62. Writ tax. — In Virginia there is a writ tax of $1.50 
 on every chancery suit instituted, which must be paid to the 
 clerk at the time of institution of the suit.^^ 
 
 § 63. Process continued — variance between the writ 
 and the bill. — According to common law practice, the writ 
 must conform to the declaration, and its failing to so conform 
 is ground for a plea in abatement. An illustration of such a va- 
 riance would be a writ in debt and a declaration in assumpsit, 
 or vice versa — or a writ in which A. is named as plaintiff and 
 B. and C. as defendants, followed by a declaration in which B. 
 alone is named as defendant.i^ 
 
 No such plea is known in the equity practice for the very 
 ■good reason that there is no reqtdrement that the writ and the 
 hill shall conform. At law there is but a single writ, each de- 
 fendant being entitled to the service of a copy, and the orig- 
 inal is retained by the sheriff for the purpose of making his 
 ■ return thereon. Hence all the copies must conform to the orig- 
 inal; and by a technical rule of practice the original must con- 
 form to the declaration. 
 
 On the other hand, in equity a separate subpoena may be is- 
 sued for each defendant, without naming any of the other de- 
 fendants; and whether a single writ is issued against several de- 
 fendants, or separate writs against each defendant, the plaintiff 
 may file his bill against but one of them, or against any number 
 less than the whole — the effect being simply to exclude those 
 
 " N. Y., etc., Ins. Co. v. Bangs, 103 U. S. 435. See generally, Parker 
 V. McCoy, 10 Gratt. 606; Strayer v. Long, 83 Va. 715; Hess v. Gayle, 
 93 Va.-469; Simon v. Craft, 103 U. S. 437; Evans v. Johnson, 39 W. 
 Va. 3S9; note 36 iL. R. A. 739; Chavannes v. Priestly (Iowa), 9 L. 
 R. A. 191. 
 
 " Va. Code, 1919, § 3401. 
 
 " Id. § 6103. 
 
34 Equity Pleading and Practice 
 
 not named in the bill as defendants. i* 
 
 The statute cited above, making provision for pleas in abate- 
 ment for variance, in terms applies only to actions at law. 
 
 THE subpoena. 
 
 The Commonwealth of Virginia, 
 
 To the Sheriff of Albemarle County greeting: 
 We command you that you summon Peter Quinby to appear 
 before the judge of our Circuit Court for the County of Albe- 
 marle, at the clerk's office of our said court, at rules to be holden 
 therefor, on the first Monday in January next, to answer a bill in. 
 chancery exhibited against him in our said court by John A. 
 Kendrick. And have then there this writ. 
 
 Witness William L. Maupin, the -clerk of our said county, 
 at the courthouse thereof, this the 18th day of December, in 
 the year of our Lord 1921, and of our foundation the one hun- 
 dred and forty-fifth. 
 
 (signed) William L. Maupin, 
 Clerk. 
 By Chas. E. . Moran, 
 
 Deputy Clerk. 
 
 § 64. The sheriff's return. — The officer who serves the 
 writ is required to endorse thereon his certificate of service — 
 usually termed his 'return.' When served on the defendant per- 
 sonally, the usual form of the return is "executed on the 
 
 day of 19 — ," with the signature and official title of 
 
 the officer. 
 
 Where the service is a substituted or constructive one, under 
 special statutory provisions, the return must show on its face 
 that the service was made under the conditions and in the mode 
 prescribed by the statute,' ^ else it will be quashed on motion — 
 or, in Virginia, in certain cases, on plea in abatement. i® 
 
 " See Equity Rule 12 — declaratory of the unwritten rule. 
 
 ■^ For details, see Burks' PI. and Pr. (2nd ed.) § 181. 
 
 " "A defendant on whom a valid process summoning him 'to answer 
 appears to have been served, shall not take advantage of any defect in 
 the writ or return * * * unless the same be pleaded in abate- 
 ment." Va. Code 1919, § 6103. 
 
The Process — Sheriff's Return 35 
 
 § 65. The same — conclusiveness. — There is a wide di- 
 versity of view as to whether the truth of the sheriff's return of 
 service may be controverted by the defendant — especially after 
 judgment by default, followed by effort on the part of the de- 
 fendant to enjoin the judgment on the ground that the return is 
 false, and that in fact the defendant was never served with 
 process, and therefore had no opportunity of making his de- 
 fense. 
 
 The authorities seem almost equally divided on the question — 
 save that all agree that if defendant can show collusion be- 
 tween the plaintiff and the officer, he will be entitled to an- in- 
 junction against ^the judgment. 
 
 The Virginia court and the United States Supreme Court, to- 
 gether with the courts of a large number of the States, have 
 adopted the negative side of the question, leaving the defendant 
 to his remedy at law against the officer and his sureties. ^'^ 
 
 § 66. The same — arguments pro and con. — There is 
 much to be said on both sides of the question. In favor of the 
 affirtnative view, it may be said that to hold the defendant bound 
 on a judgment in a proceeding of which he had no notice, seems 
 to violate the fundamental doctrine that every man is entitled to 
 his day in court — that is, due process of law under the United 
 States Constitution. 
 
 The argument for the negative view is, that since the sheriff 
 is a sworn and bonded officer, the court has a right to presume 
 that his official return is true; and to permit a judgment entered 
 
 " See Preston v. Kindrick, 94 Va. 760; Knox County v. Harshman, 
 133 U. S. 153; Miedrick v. Lovenstein, 233 U. S. 336. The authorities 
 are collected in a learned note to 19 Am. Dec. 135. See editorial 
 note, 3 Va. Law Reg. 435-9; note 54 'Am. St. Rep. 345. The Virginia 
 Court has carried the doctrine to an extreme and probably unwar- 
 ranted length, by holding that even where the defendant appears in the 
 case before final judgment, and offers to controvert the truth of the 
 return, he will not be permitted to do so, unless fraudulent collusion 
 with the plaintiff be alleged and proved. Sutherland v. Peoples Bank, 
 111 Va. 515; f antra Fowler v. Mosher, 85 Va. 431. Notwithstanding 
 the fact that the Supreme Court of the United States is committed to 
 the negative view, it has approved an injunction in just such a case. 
 Earle v. McVeigh, 91 U. S. 503. Recital of service in the decree is 
 sufficient proof thereof. Sergeant v. State, 13 How. (U. S.) 371; 
 Chesapeake, etc., R. Co. v. Washington, etc., R. Co., 99 Va. 715. 
 
36 Equity Pleading and Practice 
 
 on such return to be afterwards set aside on mere oral testimony 
 would open the door to fraud, and render judgments far less se- 
 cure than the law regards them. The contrary rule would prac- 
 tically require the sherifif to take witnesses with him in every 
 case to establish the fact of service. 
 
 § 67. The same — foreign judgment. — The right tjius to 
 assail the truth of the return seems to be settled in all the courts, 
 where the judgment in question is the judgment of a foreign 
 state or country. i* 
 
 CHAPTER VI. 
 
 Proceedings in the Clerk's Office. 
 
 § 68. Maturing the suit. — As the proceedings in a chan- 
 cery suit in Virginia, from the issuance of the original process 
 to the maturity of the suit for hearing, are quite similar to 
 the procedure at law, the student is referred for further details 
 in this connection to the scholarly treatment of such proceed- 
 ings by Professor Graves, in his course on Pleading and Prac- 
 tice at Law.i 
 
 Certain differences between the procedure at law and in eq- 
 uity, in maturing the cause for hearing, will be pointed out in 
 connection with the particular pleadings to be noticed hereafter. 
 
 § 69. Brief outline of proceedings. — In briefest outline, 
 the proceedings in the clerk's office for the maturing of a suit in 
 chancery are as follows I (1) Issue of process, returnable to a 
 specified rule-day, or first day of a term; (2) return of the 
 process by the sheriff on the day named, and on the same day 
 filing of plaintiff's bill; (3) entry by the clerk of decree nisi 
 [the translation of which barbarous phrase is that unless (nisi) 
 defendant shall file his answer, or other pleading, by the next 
 rules, two weeks off, the bill will be taken for confessed] ; (4) 
 
 " Knowles v. Gas Light Co., 19 Wall. 58. 
 
 ' And to Professor Burks' admirable treatise on the Pleading and 
 Practice in Virginia. 
 
Maturing the Suit 37 
 
 filing of defendant's pleading at the next rule day as required in 
 the decree nisi — or, in case of default, the clerk enters an order 
 taking the bill for confessed (pro confesso) ; (5) if answer is 
 filed, the plaintiff enters a general replication thereto, which, 
 under the new Code, is required to be done by the clerk without 
 special directions ; and (6) whether answer be filed or not at the 
 rule day mentioned, the clerk is required, as soon as the suit is 
 matured, to set the same for hearing; and no further proceed- 
 ings are had in the clerk's office, except to put the case upon 
 the docket. 
 
 The case now passes. from the control of the clerk into that 
 of the court. 2 
 
 § 70. The same — in the Federal courts. — The new Eq- 
 uity Rules have made radical changes in the former practice. 
 Among other notable changes the following may be mentioned 
 here : Rule-days are abolished ; ^ process is returnable within 
 twenty days from the date of its issuance, and the answer must 
 be filed within twenty days after process served ; * in default of 
 answer so filed the bill may be taken pro confesso (unless for 
 cause shown) and thereafter the cause proceeds ex pa-rte.^ 
 
 § 71. Proceedings on default of appearance. — In prob- 
 ably all systems of pleading in civil cases, the failure of the 
 defendant to appear and make defense, after due notice, is taken 
 as a confession of the truth of the matters alleged against him 
 in the plaintiff's pleading. But it will frequently happen that, 
 in spite of such implied confession, further proof is necessary 
 before the plaintiff may have a final judgment or decree for the 
 specific amount or thing to which he is entitled. 
 
 Thus, in the common law system of pleading (slightly modi- 
 fied in this respect by the Virginia statute),'' if the action sound 
 in damages, judgment by default of appearance is final only as 
 to the validity of the. cause of action, whereas the amount of 
 
 ' See Va. Code 1919, §§ 6138-6139, containing sundry provisions 
 for speeding the cause. 
 ' Equity Rule 19. 
 * Equity Rule 12. 
 " Id. 16, 17. 
 " Va. Code 1919, §§ 6132, 6133. 
 
38 Equity PivUading and Practice 
 
 damages must be ascertained on a writ of inquiry. If, how- 
 ever, the action does not sound in damages, but is brought for 
 recovery of a specific thing or a definite amount due by con- 
 tract, no writ of inquiry is required, and, after the expiration 
 of the grace fixed by the statute, the office judgment is final, 
 without evidence aliunde. 
 
 § 72. The same — biUi taken pro confesso. — .In equity 
 suits, under the Virginia practice, as indicated, where the de- 
 fendant fails to plead at the rules, a decree pro confesso is en- 
 tered againt him in the clerk's office. When the order is so 
 entered, and the cause is on the docket at the beginning of the 
 next term, the question of further procedure is naturally one 
 of interest and importance to the plaintiff. Is he entitled, then 
 and there, to a decree on the merits, or is the defendant enti- 
 tled to further grace? 
 
 § 73. EiFect of biU taken for confessed. — Where the 
 bill is thus confessed, and the cause is matured and on the 
 docket, the procedure is assimilated to that in the law courts, in 
 that the character of the decree to which the plaintifif is enti- 
 tled, depends upon the nature of the case. The confession is 
 sufficient proof of all matters of fact properly and specifically 
 pleaded in the hill. If these allegations of fact be sufficiently 
 definite to base a final decree thereon, the plaintiff may have 
 such a decree at once without further grace to the defendant ; '' 
 if not thus sufficiently definite, further proceedings may be re- 
 quired. 
 
 For example, where process has been duly served in a suit to 
 set aside an alleged fraudulent conveyance, a confession by 
 default is sufficient proof of the fraud. ^ But while sufficient 
 proof of the fraud, yet if the bill in such case should fail to 
 allege distinctly the amount of the plaintiff's debt, — describing 
 it, for example, as a "large sum" ; or where a trustee or other fi- 
 duciary is sued for a settlement of his accounts; or the bill 
 
 ' See infra, next section. 
 
 • See Price v. Thrash, 30 Gratt. 515, 522; Fischer z>. Lee, 98 Va. 
 159; Thompson v. Wooster, 114 U. S. 104; Hefner v. Ins. Co., 123 U. 
 S. 747; 1 Va. Law Reg. 546. 
 
Decree Pro Confesso ' 39 
 
 seeks to enforce the lien of a judgment without indicating spe- 
 cifically the lands to be subjected — in all such cases, manifestly 
 no final decree can be entered on the confessed bill, and 
 further proof is required. 
 
 § 74. Setting aside a decree pro confesso. — The statute 
 with reference to setting aside office judgments by a plea to the 
 merits within the first fifteen days of the next term ^ is in terms 
 applicable to judgments (at law) only, and not to decrees in 
 equity. ' So, it would seem that in a case proper for a decree on 
 the merits, the plaintiff may take such a decree as the confes- 
 sion warrants, forthwith, on the opening of the term.'^'' 
 
 § 75. Filing of belated answer. — Under the former prac- 
 tice in Virginia, sanctioned by statute, the defendant was per- 
 mitted to file his answer at any time before final decree, al- 
 though the filing of the belated answer did not entitle him to 
 have the cause continued or sent back to rules. i^. Leave to file 
 the delayed answer was usually granted on condition that the 
 trial of the cause should not be thereby delayed. 
 
 The present statutory rule requires that the defendant shall 
 file his answer within six m-onths from the date of service of 
 process on him, unless such time be lessened or increased by the 
 court. If his answer or defense is not filed within such time, it 
 is declared that the same shall not be allowed to be filed ex- 
 cept for good cause shown, and upon payment of certain costs, 
 and upon certain terms prescribed by the court. ^^ 
 
 It will be noted that this section of the Code is largely based 
 on Federal Equity Rules 16 and 17, though much less severe. 
 
 ' Va. Code 1919, §§ 6134-6135. ; 
 
 " See Equity Rule 16. 
 
 " Va. Code 1887, § 3275. 
 
 " Va. Code 1919, § 6122. See the statute for details. It is an in- 
 teresting question, not known to have been judicially settled in 
 Virginia, whether, on a bill taken for confessed, the cause may there- 
 after proceed ex parte, as required by the Federal Equity Rules, or 
 whether the defendant, notwithstanding his default and confession, 
 is entitled to notice of further proceedings, as the taking of deposi- 
 tions or proceedings before the master. The Jatter is believed to be 
 the practice in Virginia — though probably not justified on principle. 
 
40 ' Equity Pleading and Practice 
 
 § 76. The same— grace for filing answer.— It is quite 
 clear that the new provision mentioned in the last section, re- 
 quiring the defendant to file his answer within six months, is 
 not meant as requiring a stay of proceedings in the cause for 
 six months, awaiting the answer. This section (6122) is to 
 be construed with § 6131, requiring filing of the answer at the 
 rules following the filing of the hill; and, in default of answer 
 at that time, requiring the clerk to enter the bill as taken for 
 confessed — which result, under § 6138, makes it the duty of the 
 clerk to set the cause for hearing, and place it on the court 
 docket. 
 
 It follows, then, that the new provision providing that the an- 
 swer shall be filed within six months from the service of the 
 process, is intended merely as a substitute for the former pro- 
 vision that ansvv^er might be filed at any time before final de- 
 cree. If this be true, then the new six months' rule is a statute 
 limiting a privilege rather than enlarging it — and in no wise 
 stays the hand of the plaintiff or of the court in the mean- 
 while. ^^ 
 
 § 77. Bill pro confesso, continued — exceptions. — While 
 the general rule, as stated, is that in default of appearance by 
 the defendant a decree pro confesso will be entered as a matter 
 of course, there are certain exceptions which it may be well 
 to notice here — exceptions based on soundest principles ; namely : 
 (1) Where defendant has not been personally served with proc- 
 ess, but has been summoned by order of publication; i* (2) In 
 divorce proceedings^^ — for obvious reasons; (3) In proceed- 
 ings against infants and lunatics.''-'^ In these cases, in default 
 of appearance, the cause 'is simply '"set for hearing." 
 
 ^ The revisers say in their ^note to § 6122 that the provision was en- 
 acted in the interest of expediting the hearing of chancery causes, and 
 in lieu of the old section permitting the filing of the answer at any 
 time before final decree. 
 
 " See Va. Code 1919, § 6132. 
 
 "^ Id., § 5106. 
 
 " Id., § 6098. 
 
Parties to Equity Suits 41 
 
 CHAPTER VII. 
 
 Parties to Equity Suits. 
 
 § 78. Preliminary. — Before passing to the consideration 
 of the pleadings in detail, it will be well at this point to consider 
 briefly the question of proper or necessnry parties to chancery 
 suits. 
 
 § 79. Parties at law and in equity contrasted. — The 
 
 difference in the practice at law and in equity with respect to 
 parties is marked, and should receive the careful attention of 
 the student. 
 
 The variance springs from the essential difference in the 
 functions of the two courts. These functions cannot here be 
 contrasted in detail, but for present purposes may be briefly 
 summarized. 
 
 § 80. Basis of rules as to parties in both courts. — The 
 
 rules gov.erning the question of parties defendant, at law as well 
 as in equity, depend upon the fundamental principle that pro- 
 ceedings in a suit bind only those persons who are parties 
 thereto. The justice of this principle is obvious. Persons not 
 parties have had no oi^portunity to be heard, and it is contrary 
 to first principles that one should be bound, in his person or his 
 property, by a proceeding to which he was a stranger. 
 
 § 81. Functions of law and equity courts contrasted. 
 
 — Courts of law sit rather as triers of a disputed right between 
 the plaintiff asserting legal title to such right, and the defendant 
 who is alleged to be infringing or denying that right. Such 
 courts ignore merely equitable rights — whether as between the 
 parties to the action, or as between one or more of these and 
 third persons. The circumstance that the judgment does not set- 
 tle the whole controversy, or the certainty that, as the result of 
 
42 Equity Pi^Eading and Practice 
 
 the liability fixed upon him by the judgment, or satisfied by him 
 under the execution, a particular defendant must undertake 
 other litigation with the plaintiff, or with his co-defendants, or 
 with strangers, before the entire subject-matter of the contro- 
 versy is beyond dispute, plays no part in the proceeding at law. 
 
 On the other hand, courts of equity sit not merely to decide 
 disputed questions of legal right and legal liability, but, in large 
 measure, as administrative tribunals, whose duty and pleasure it 
 is to make a complete disposition of the property or other sub- 
 ject-matter of the litigation ; and, to that end, to settle, once for 
 all, the equitable as well as legal rights of every person who has 
 an, interest in the subject-matter, so that every such person shall 
 be bound by the decree, and no further litigation among the 
 parties will be necessary or permissible. 
 
 § 82. The same — contrast continued. — Upon judgment 
 had, the court of law, as a rule, takes-no part in securing to the 
 plaintiff the fruition of his judgment. The successful plaintiff 
 must, in general, rely on the assistance of the sheriff to put him 
 in possession of the money- or property to which the judgment 
 entitles him. 
 
 Courts of equity, however, possess proper machinery for spe- 
 cifically securing to the successful party the benefit of the de- 
 cree, under the very eye of the court. 
 
 If the judgment be against several defendants, equally and 
 jointly bound, the plaintiff may levy his execution on the prop- 
 erty of any one of them, (even on that of a surety) for the 
 full amount thereof, and wholly ignore the equities of exonera- 
 tion or contribution among them. And the court of law is 
 powerless, in that proceeding, to interpose and adjust the bur- 
 den among the several defendants. 
 
 On the other hand, a court of equity is astute to see that the 
 person who is to bear the burden at the end, shall assume it at 
 the beginning. 
 
 § 83. The same — contrast continued. — There can be but 
 two sides to an action at law, and all parties on either side must 
 be jointly interested, in precisely the same zua'y. In short, the 
 parties on either side, howsoever numerous, are regarded as a 
 
Parties 43 
 
 unit. All actions at law, therefore, are bilateral only. 
 
 In equity, on the other hand, a merely bilateral controversy 
 may almost be said to be exceptional. Here there is no fixed 
 limit to the number of sides that may be represented — and it is 
 a familiar spectacle to find that the main contest is not between 
 the plaintifif and one or more of the defendants, but between one 
 'Qr more defendants on one side, and one or more on the other. 
 Of this, we shall see numerous examples later. 
 
 Again, the purpose of every action at law is to fix a legal lia- 
 bility, and the same liability, on every defendant, and in favor 
 of every plaintiff, where there are more than one of either — 
 as there may not be, except in case of partners or others in joint 
 liability. That one should be made party defendant at law, for 
 any other purpose than to assert a hostile claim against him, is 
 inconceivable to the common law court, and therefore unknown 
 in its practice. 
 
 Iri equity the situation is wholly different, and for the reason 
 that the policies of the two courts are as dissimilar as are their 
 origin and practice. As already indicated the policy of the eq- 
 uity court is to make a complete disposition of the entire con- 
 troversy in all of its ramifications, and to award the subject 
 matter of the litigation to him or them of the claimants to whom 
 in equity and good conscience it rightfully belongs. In order, 
 therefore, that the decree in equity may stand forever binding 
 on all claimants, and the controversy rendered completely res 
 judicata, all persons who are in any wise interested, and who 
 might again litigate the question thus settled, are required to be 
 made parties to the suit — whether as privileged to participate 
 in the benefits to be adjudged, or liable to share in the burdens 
 to be decreed, or whether impleaded simply to erect an estoppel 
 against them. 
 
 § 84. The same — friendly suits. — It is, therefore, not at 
 all essential nor, indeed, common, for the bill to seek affirmative 
 relief against every defendant named — and, therefore, the same 
 relief need not be sought of every defendant; nor for the sev- 
 eral defendants to form a single unit, as at law. Nor need the 
 bill assert any hostile claim whatsoever against any defendant — • 
 in which case the proceeding is known as a friendly suit. Suits 
 
44 Equity Pleading and Practice 
 
 for partition, for the sale of infants' lands, for the aid of the 
 court in the administration of trust estates, etc., are illus- 
 trations of suits that are, or may be, friendly. 
 
 It is hoped that this brief contrast between the judicial con- 
 ception of the functions of courts of law and of equity, respec- 
 tively, may make clear to the student why the rule as to parties 
 is so widely variant in the two systems ; and may, in a measure-, 
 prepare the student to understand the reason and application of 
 the rule as to parties in equity, now to be mentioned. 
 
 § 85. Condensed rule as to parties in equity. — It is not 
 
 possible to formulate a rule full enough, and accurate enough, 
 to determine the question of parties for every case in equity. 
 This often becomes a difificult problem for even the most ex- 
 perienced practitioner. Nor are the courts always in harmony 
 on the question of parties. But, save here and there in an un- 
 usual or complicated case, well-informed practitioners find the 
 qiuestion of parties in equity comparatively simple. In case of 
 doubt, the safe practice is to resolve the doubt affirmatively, by 
 including the doubtful party as a defendant — since, on objec- 
 tion made, the result of the erroneous inclusion is merely the 
 dismissal of the improper party from the cause. ^ 
 
 Now, as to our rule — sufficient, it is hoped, for present pur- 
 poses : All persons in, being, and within reach of the process of 
 the court, who are in anywise interested, legally or equitably, in 
 the subject-matter of the litigation, and whose interests may be 
 directly affected by the proceedings, whether beneficially or 
 detrimentally, or who might again litigate the precise matter ad- 
 judicated, should be made parties to the suit. 
 
 § 86. Parties in equity — illustrations. — A few examples 
 may serve to illustrate the rule as to parties in equity. Thus, 
 
 ' The revisors of the new .Virginia Code have wisely provided that 
 no action or suit shall abate, or be defeated, by non-joinde;' or mis- 
 joinder of parties, plaintiff or defendant; but, on affidavit made, new 
 parties may be added, or improper parties dropped, by order of the 
 court at any stage of the cause — Code 1919, § 6102. See the statute for 
 particulars. The statute substantially embodies the provisions of the 
 New Jersey Practice Act of 1912, § 9. See also Va. Code 1919, § 6139. 
 
Parties — Necessary 45 
 
 where a trustee invokes the advice of the court in the adminis- 
 tration of the trust, all the cestuis must be made parties. Not 
 that any relief is prayed against them, but that they may be 
 bound by whatever action the trustee may take in pursuance of 
 the court's advice and direction. 
 
 So where the mortgagee files a bill to foreclose, after death 
 .of the mortgagor, he is required to bring in the heirs (or devi- 
 sees) and the personal representative of the deceased mortga- 
 gor. 
 
 So where one legatee or distributee seeks an accounting from 
 the personal representative, and a distribution of the estate, not 
 only must the personal representative be a party, but all other 
 legatees of distributees are necessary parties. 
 
 So where one or more shareholders institute a derivative suit 
 in equity (as they may under proper conditions) against direc- 
 tors, to assert a liability for negligent or corrupt mismanage- 
 ment of the corporate aflfairs, the corporation is a necessary 
 party, since any recovery in the proceeding will be corporate 
 assets, to be converted into the corporate treasury for the bene- 
 fit of all shareholders. 
 
 These are but a few illustrations of the practically universal 
 rule governing the question of parties to equity suits — but a 
 rule which, like most administrative rules, will not be applied 
 strictissime, when to do so, in a particular case, would sacrifice 
 justice to form. 
 
 § 87. Classification of parties — "necessary" parties.^ 
 
 Courts and commentators usually classify parties in equity as 
 either necessary or proper parties. 
 
 Those whose presence is essential to a complete determination 
 of the controversy or disposition of the subject-matter, are 
 termed necessary parties — since without their presence in the 
 suit there can be no effective decree. 
 
 Illustrations of necessary parties are: In a partition proceed- 
 ing, or in any proceeding by which the joint estate is sought to 
 be affected, as by a judgment, mortgage, mechanic's or other lien 
 — all the co-tenants are necessary parties ; the personal repre- 
 sentative, and all legatees or distributees of an estate, on a bill 
 filed for distribution of the estate; the corporation, in a deriva- 
 
46 Equity Pleading and Practice 
 
 tive suit by shareholders ; the grantor as well as the grantee in 
 a suit by creditors to set aside a fraudulent conveyance ; all per- 
 sons against whom an injunction is sought; in a surety's suit for 
 subrogation, the satisfied creditor, as well as the principal — the 
 security being held by, or standing in the name of, the former. 
 Wherever, in these cases, the suit is in rem, or quasi in rem, 
 any necessary party who is a non-resident may be summoned by 
 order of publication. ^ 
 
 § 88. The same — "proper" parties. — On the other hand, 
 proper parties are those without whose presence in the suii a 
 substantial decree may be made, but not a decree which shall 
 completely settle all questions and conclude all rights involved 
 in the litigation.' 
 
 For example, a suit to subject the surety's estate, where the 
 principal is a non-resident, and both his estate and his person are 
 out of the reach of the court's process; or a suit on a joint con- 
 tract, where all the joint contractors cannot be reached. In 
 these and similar cases the suit may proceed without the absen- 
 tees. 
 
 § 89. The same — in the Federal courts. — A somewhat 
 less strict rule as to parties is made in the Federal courts of eq- 
 uity, consequent upon the limitation imposed upon their jurisdic- 
 tion by the requirement of diverse citizenship , and by their in- 
 ability to bring in parties who are without the district. In these 
 courts the rule is somewhat more liberal than in the state 
 courts.* 
 
 § 89. Parties plaintiff.— The technical rule of the law 
 courts that only those having legal title to the subject-matter of 
 the controversy may sue, and that all those holding the legal ti- 
 tle must unite as plaintiffs, howsoever numerous, is unknown to 
 the equity practice. 
 
 On the contrary, where the case is otherwise proper for a 
 
 ' Qu. vid., supra, §§ 42 et seq. 
 ' Fletcher, >Eq. PI. & Pr. 40. 
 
 * See Equity Rules, 37-44; Minnesota v. Northern Securities Co., 
 184 U. S. 199; Fletcher, Eq. PI. & Pr. 40. 
 
Parties by Representation 47 
 
 court of equity, any person who has an interest, legal or equita- 
 ble, may, as sole plaintiff — whether others be interested with 
 him or not — file a bill for the protection and enforcement of 
 his rights. If others with whom he is jointly interested refuse 
 to unite as plaintiffs, they may, and should, be made parties de- 
 fendant, with an explanation of the reasons why they are not 
 parties plaintifif.^ 
 
 § 90. The same — real party in interest. — At law, in a 
 limited class of cases, it is common practice to permit the equi- 
 table owner of a right to assert it by an action in the name of 
 the holder of the legal title. Indeed, in absence of an enabling 
 statute, this is the only way in which the equitable owner can, 
 in any case, assert his rights at law. A once familiar instance of 
 this practice was that of the assignee of a chose in action s'.iing 
 at law in the name of the assignor. 
 
 In equity, on the other hand, the rule is invariable that the 
 suit must be brought in the name of the real party in interest, 
 and not in the name of another.® The error here is fatal to the 
 bill — as it is in all cases where the plaintiflf has no real interest 
 in the suit.''' 
 
 The Doctrine of Representation, of Parties. 
 
 § 91. Parties by representation — (1) as plaintiffs. — 
 
 Notwithstanding the general rule stated, in certain familiar cases 
 where numerous persons are interested (though not necessarily 
 jointly) in identically the same right, a few as representing the 
 rest are allowed, for convenience, and to avoid an undue multi- 
 plication of parties, to prosecute the suit in behalf of themselves 
 and the others concerned. This happens notably in case of 
 shareholders in a corporation, taxpayers of a municipality, and 
 members of a voluntary society, seeking a common purpose, 
 where one' or more may sue in behalf of all.* 
 
 ° See Equity Rule 37 — in this respect merely declaratory. 
 
 " Kane v. Mann, 93 Va. 339; Penn v. Hearon, 94 Va. ;733. 
 
 ' Keyser v. Renner, 87 'Va. 249. 
 
 ' Coffman v. Sangston, 21 Gratt. 263; Lynchburg v. Dameron, 95 
 ■^a. 545; ^Siegfried v. Perkins, 97 "Va. 444; Johnson v. Black, 103 "Va. 
 477; The Liberty Bell, 23 Fed. 843; State v. Cape May (N. J.), 49 
 Atl. 584; Crompton v. Zabriskie, lOl U. S. 601. 
 
48 Equity PivEading and Practice 
 
 § 92. Parties by representation — (2) as defendants. — 
 
 The general doctrine has already been emphasized that no man 
 is bound, in his person or property, by a judicial proceeding to 
 which he was not a party, by lawful process duly served upon 
 him. It has also been shown that in certain cases ^ one may be 
 made a party by publication duly authorized and duly executed, 
 and thus become bound as to a particular res against which the 
 proceeding is directed, without personal process served. 
 
 So far as concerns judgments or decrees against the person, 
 there is probably no single exception to the .first mentioned 
 rule.i*' But under the doctrine of representation of parties, (or 
 'virtual representation') now under consideration, an exception 
 (actual or apparent) is made, in the interest of convenience, in 
 order to avoid either a multiplicity of parties, or, in the case of 
 unknown or unborn persons in interest, an indefinite delay of 
 proceedings to await the discovery of the unknown or the birth 
 of the unborn. 
 
 The necessities of the situation here have forced courts of 
 equity to recognize some relaxation of the general rules not 
 however as to decrees against the person, but only those affect- 
 ing a particular res, the subject of the litigation. 
 
 § 93. Virtual representation, continued — multiplicity 
 of parties defendant. — Thus where the plaintiff proceeds 
 against a voluntary, unincorporated society, composed of many 
 members, he may sue a few on behalf of the rest, if the purpose 
 of the suit be, not to fix a personal liability on the members 
 omitted as parties, but to subject property interests of the so- 
 ciety.ii 
 
 § 94. The same — unknown parties. — Again, where a 
 particular res is brought under the administration of the court, 
 by plaintififs who, as creditors, or claimants of the whole or. 
 some part thereof, are seeking to assert their rights therein, and 
 it is known or suspected that other unidentified persons have a 
 claim to the res, or some part of it — as where a former person 
 
 ° See sii/Ta. § 42 ct scq. 
 
 " Hitchman, etc., Co. v. Mitchell, 245 U. S. 355; supra. § 42 et seq. 
 " A suit to enforce a debt against an unincorporated church is a 
 typical example. L,inn v. Carson, 32 Gratt. 170. 
 
Parties by Representation 49 
 
 in interest (actual or apparent) has died and his heirs are un- 
 known — the rules of the equity practice permit such unknown 
 persons to be made parties by the general description of "un- 
 known parties." ^^ 
 
 § 95. The same — unborn persons. — It not infrequently 
 becomes necessary for courts of equity to dispose of estates 
 which are subject to contingent remainders, or other future in- 
 terests, which, under the terms of the deed or devise, are lim- 
 ited to persons not yet in esse. 
 
 The Virginia Code,i^ and statutes of most of the states make 
 provision for the sale of such contingent estates, under the par- 
 ticular conditions and for the purposes set out in the statutes. 
 
 But aside from the statutory situation mentioned, the credi- 
 tors of the donor under whose deed or will the contingent estate 
 has been created, have the right to subject the estate to the pay- 
 ment of their debts in priority to the claims of the donees or 
 devisees, whether vested or contingent. In all such cases, the 
 question of binding the unborn beneficiaries, so that if, and 
 when, they come into being, they may not assail the action of 
 the court, nor the title of the purchaser at the judicial sale, be- 
 comes one of prime importance. 
 
 § 96. The same — under statutory proceedings. — Where 
 the proceeding for the purpose of disposing of contingent es- 
 tates is brought under the statute, and all persons in being who 
 are interested are mjde parties, the statute itself declares that 
 all persons thereafter born and becoming interested, shall be 
 bound by the proceedings though not parties. i* 
 
 § 97. The same — not under the statute. — Where, how- 
 ever, the sale of such contingent interests is required, not under 
 nor for the purposes contemplated by the statute, but under a 
 
 *^ With such marks of identity as can be adduced, such as "the un- 
 known heirs of John Doe, deceased, a former resident of Albemarle 
 County, Virginia, who is believed to h^ve removed to the State of. 
 California in the year 1849." See declaratory statute, Va. Code 1919, 
 § 6069. 
 
 " § 5161. 
 
 " Va. Code 1919, § 5161. For authorities construing such statutes, 
 see n. 8 L. R. A. (N. S.) 62; Carneal v. Lynch, 91 Va 114. 
 
50 Equity Pi^eading and Practice 
 
 paramount incumbrance executed or suffered by the original 
 donor, such as a mortgage, judgment or other lien — or again 
 where a court of equity is proceeding under its general equity 
 jurisdiction to dispose of a trtist estate for the general interests 
 of the trust — the question of unborn beneficiaries must, in the 
 absence of statutory aid, be otherwise provided for. 
 
 The rule here seems to be that if the holder of the first estate 
 of inheritance be made a party, the proceeding will bind all re- 
 mote interests of claimants not yet born or not yet identified, 
 who would claim in privity of estate. 
 
 And where the limitation is so contingent that as yet there is 
 no vested estate of inheritance (as "to A for life, remainder 
 to such of her children as may survive her," and A is still liv- 
 ing), then it is sufficient that the life tenant be treated as vir- 
 tually representing contingent claimants not in esse?-^ 
 
 § 98. The same. — Broadly speaking, the test of the suffi- 
 ciency of the representation in a particular case is : Was the 
 party, or were the parties, or the class, actually impleaded, fairly 
 representative of the persons or class not in esse, considering 
 the circumstances of the particular case, and viewed from the 
 standpoint not of the absent and unborn only, but of the living 
 parties to the suit in pursuit of their legal and equitable rights. 
 
 In such cases, while the court is anxious to guard the rights 
 of the unidentified and absent parties, it must with equal care 
 do justice to the living. It follows that a life tenant who as- 
 serts a title hostile, to, or occupies a position of indifference to 
 the title under which those not in esse must claim, is not a 
 proper representative. i« 
 
 ^ See opinion of Moncure, J., in Faulkner z'. Davis, 18 Gratt. 65], 
 683-691, where the subject is discussed at length. 
 
 '■' Downey v. Seib, 185 N. Y. 437, 78 N. E. 66, 8 L. R. A. (N. S.) 1, 
 and monographic note; Baylor v. De Jarnette, 13 Gratt. 152: Devise 
 to E for life, remainder to her eldest son living at her death. E had 
 no son at testator's death. Suit by creditors of testator to subject 
 the estate, the life tenant and administrator alone being made parties. 
 Pending the suit, a son was born to E, but not brought in as a party. 
 Held, under the rule of virtual representation, the son is nevertheless 
 bound by the proceedings. 
 
 Faulkner v. Davis, 18 Gratt. 651: To T in trust for W for life, 
 remainder to her surviving children, and to the descendants of any 
 deceased child, living at her death. Suit by W, life tenant, for sale 
 
Parties by Representation 51 
 
 § 99. The same^Federal court rule — trustee as repre- 
 sentative of creditors. — By the ordinary rules of chancery 
 practice, both the trustee and the cestui que trust are necessary 
 parties to a suit involving the disposition of the trust estate. In 
 the Federal courts, however, and particularly in the case of 
 foreclosure of mortgages or deeds of trust made by corpora 
 tions to secure an issue of bonds, it is the settled rule that the 
 trustee is the proper representative of the interests of the bond- 
 holders, and the latter will not be admitted as parties, save un- 
 der special circumstances. 
 
 The rule rests in the inconveniences and delays likely to re- 
 sult from the presence of numerous litigants. The rule also 
 avoids difficulties of maintaining the federal jurisdiction when 
 resting on diverse citizenship." 
 
 § 100. Parties in several characters. — The student 
 should observe here the striking difference between the prac- 
 tice at law and in chancery in this particular. At law, one can- 
 not sue or be sued in several characters, c. g., in his own right 
 and as administrator. In equity, however, one may, in a proper 
 case, be plaintiff or defendant in as many characters as he rep- 
 resents, e. g., "John Smith, in his own right, and as executor of 
 Hiram Smith, deceased, and as trustee under the will of Mary 
 Smith, deceased," may sue "William Brown, in his own right, 
 and as committee of Anna Brown, a lunatic, and as guardian of 
 Robert Brown, an infant, and as executor of Henry Jones, de- 
 ceased." 
 
 And where it is doubtful whether the right claimed by the 
 plaintiff, or against the defendant, be in one character or an- 
 
 and reinvestment. The trustee and five living children of W were 
 made parties. Held, after-born contingent remaindermen are bound 
 by the sale. 
 
 Harrison v. Walton, 95 Va. 231: Devise to H for life, remainder 
 to her children surviving her, and the heirs of such as may be dead. 
 Suit by life tenant for settlement of testator's estate and payment of 
 debts, to which suit all of her living children are made parties de- 
 fendant. Held, afterborn children of H are bound by the proceedings, 
 as sufficiently represented by those who were actually parties. 
 
 " See Bates, Fed. Eq. Pr. 55; Corcoran v. C. & O. Canal Co., 94 
 U. S. 741; Va. Pass. & Power Co. v. Fisher, 104 Va. 121— approving 
 the rule; 30 Am. Law Review 161; Kent zk Lake Superior, etc., Co., 
 144 U. S. 75. See further, Equity Rules, 37, 41. 
 
52 Equity Pleading and Practice; 
 
 other, the plaintiff may sue, or the defendant be sued, in both 
 characters, and a decree may be rendered in the plaintiflf's favor 
 in that character in which he appears to be rightfully entitled, 
 or against the defendant in that character in which he appears 
 liable." 
 
 § 101. Defect of parties — how objection made. — 
 
 Where the defect appears on the face of the bill, the proper 
 course, as in every other case of a pleading defective on its face, 
 is to demur. Where the absence of parties does not appear on 
 the face of the bill, the proper course, as in every other case of 
 new facts in avoidance, is to set up the defect by plea or an- 
 swer. 
 
 § 102. The same — objection by court ex mero motu. 
 
 — But if it appear to the court in any manner, that no proper 
 decree can be entered until necessary parties are brought in., the 
 court will itself decline to proceed until such absentees are prop- 
 erly made parties. And, in a case of this kind, objection may 
 be made for the first time in the appellate court — for the very 
 good reason that the objection is one that cannot be waived, 
 since the appellate court can no more proceed without necessary 
 parties than can the lower court. 
 
 Where, for example, it distinctly appears that the real prop- 
 erty of which partition is sought, belongs to five persons, but 
 that only four of them are parties to the suit, the court will not 
 stultify itself by dividing the property among the four, well 
 knowing that the absent party will not be bound by the decree, 
 and may later, in a new suit, render vain the entire proceedings 
 in the first suit. Clearly, in such case, the circumstance that 
 none of the four makes objection to the absence of the fifth co- 
 owner will not prevent the court itself, c.r mero motu, from 
 raising the objection. i^ 
 
 § 103. The same— waiver of objection. — But where the 
 absent party's presence is n.ot essential to an effective decree in 
 the plaintiff's favor, the objection may be waived, and is waived 
 
 " Brent v. Washington, 18 Gratt. 536. 
 
 " The principle is too elementary to require citation of authority. 
 See Sillings v. Bumgardner, 9 Gratt. 273. 
 
Infant and Insane Parties 53 
 
 unless the defendant raises the objection at the proper time; 
 and the same principle applies where the objection is that one 
 or more plaintiffs have been improperly joined. 2" 
 
 § 104. Parties continued — suits by infants and insane 
 persons. — Infants sue in their own names'^i by a prochein ami, 
 or next friend,^^ and not by their guardians. Lunatics who 
 have been so adjudged, and for whom a committee has been 
 appointed, should sue in their own names by the committee, who 
 may (as mere surplusage) be styled also as next friend. In 
 the absence of the committee, suit may be by next friend. ^^ 
 
 " Vaiden v. Stubblefield, 28 Gratt. 153. See illustrations of neces- 
 sary and proper parties, supra, §§ 87-88. 
 
 ^ This means that the suit must be the infant's suit, and not that of 
 the next friend. If in the name of the next friend "on behalf of the 
 infant" it cannnot be maintained. No party, infant or adult, may sue 
 by deputy. Morgan v. Potter, 157 U. S. 195. 
 
 '^ Va. Code 1919, § 5331. 
 
 "^ Jackson v. Counts, 106 Va. 7; Wheeler v. Thomas, 116 Va. 259, 
 270; Lake' w. Hope, 116 Va. 687; Equity Rule 70. There is usually 
 no formal appointment of the next friend of an infant or lunatic; his 
 being named as such in the bill, and the suit proceeding without ob- 
 jection, is a tacit recognition of him as such by the court. Indeed, 
 it seems to be the settled rule of the unwritten law that any person, 
 though a stranger, may file a bill in the name of any incompetent 
 (infant or lunatic) for the purpose of enforcing a supposed right be- 
 longing to such incompetent, even against the latter's will. On ob- 
 jection made, the court will order a proper inquiry, by a master or 
 otherwise, to determfne whether the suit shall proceed, and will 
 make such other orders as may seem proper for the protection of the 
 interests involved. Story, Eq. PI. 60; Klaus v. State, 54 Miss. 644; 
 Bethea v. Call, 3 Ala. 449; Judson v. Blanchard, 3 Conn. 579; Fulton 
 V. Rosevelt, 1 Paige 178, 19 Am. Dec. 409; Kingsbury v. Buckner, 134 
 U. S". 650 — the opinion in which, by Harlan, J., contains a learned 
 discussion of suits by procheins amis, and the powers of the latter. 
 
 The statement that there need be no special appointment of the 
 prochein ami seems questioned, without noticing the leading authori- 
 ties, and on what appears to be a mistaken view of the authorities 
 cited, in 'Lake v. Hope, 116 Va. 687, 707-709. It is not quite clear 
 from the opinion whether the fatal error was in the omission of the 
 usual phrase "admitted by the court to prosecute the interests of the 
 lunatic (or infant) in this cause," which, in the absence of specific 
 objection, is taken to be an implied appointment, or whether the 
 court meant to assert the necessity of a formal appointment in every 
 case. If the former were meant, the ruling, though highly technical 
 and out of keeping with the liberal spirit of equity pleading in Vir- 
 ginia, is not otherwise objectionable. But if the court meant to de- 
 clare that an express and formal appointment of the prochein ami is 
 necessary, the conclusion is not believed to be supported by ap- 
 proved authority. Since the real point of the decision was that as 
 
54 Equity Pi^Dading and Practice 
 
 § 105. Suits by iaifants, continued — by guardian. — 
 
 That an infant should sue by his prochein ami (or next friend), 
 and not by his guardian has been the approved practice, at law 
 as well as in equity, since the early English Statutes of West- 
 minster I, c. 48 (3 Edward I) and Westminster II, c. 15 (13 
 Edward I). But in some of the states, probably as the result of 
 statute, the guardian is permitted to sue on the infant's behalf. 
 In either case, however, whether the suit be by the prochein ami 
 or by the guardian, (in absence of statutory provision to the 
 contrary), the suit (with an exception to be noted later) is the 
 infant's suit (not the guardian's) and must be in the infant's 
 name, by the guardian. 
 
 The guardian, (unlike the executor) has neither legal n.or 
 equitable title to the ward's estate; whereas the executor has 
 such title to the personal estate of the testator, and not infre- 
 quently, by the terms of the will, to the realty as well. Neither 
 of these, normally, has title to the realty of the ward or testa- 
 tor, respectively. The guardian is, therefore, in a sense, an 
 agent only, with comparatively limited powers — and his agency 
 does not embrace authority to sue in that character on behalf 
 of the infant. 
 
 Thus he may not file a bill for aii accounting on behalf of the 
 ward against a former guardian ^* nor to recover a distributive 
 share, in a decedent's estate ^s ; nor in any case, it seems, to ob- 
 tain possession of the ward's property in the first instance. If 
 once in the possession of the guardian, he may, of course, sue 
 
 the affairs of the lunatic were ah-eady in the hands of a regtilarly 
 appointed committee, the suit could not be maintained by the next 
 friend, there was no occasion to pass upon the regularity of the 
 appointment of the next friend, and the discussion of that question 
 was obiter. 
 
 The powers of the prochein ami are extremely limited. While he 
 has control of the suit, under the immediate supervision of the court, 
 he has no authority to receive funds payable to the incompetent, nor to 
 make admissions to the prejudice of the infant, nor to compromise 
 the suit. He is a mere quasi officer of the court, and subject to its 
 directions. Morgan v. Thorne, 7 M. & W. 400, 406; Miles v. Kaigler, 
 10 Yerg. (Tenn.) 10, 30 Am. Dec. 426; Cratty v. Eagle (W. Va.), 18 
 S. E. 59; Bernard v. Merrill (Me.), 40 Atl. 136; Burwell v. Corbin, 1 
 Rand. 153, 10 Am. Dec. 494. 
 
 " Lemon v. Harnsbarger, 6 Gratt. 301; Bradley v. Amidon, 10 
 Paige 235. 
 
 '^ Sillings V. Bumgardner, 9 Gratt. 273. 
 
Infant and Insane Parties 55 
 
 in his own name to recover possession of that o£ which he has 
 been ousted; and, by parity of reason, damages for injury to the 
 ward's property in his possession 20 ; and of course he may sue 
 on a contract made by himself as guardian. 
 
 § 106. The same — suits against infants and insane 
 persons. — These are brought and conducted as other suits in 
 chancery — against the infant or lunatic personally — but the de- 
 fendant's appearance and defense are made by a guardian ad 
 litem '■''• specially appointed to represent the incompetent.^^ 
 Here again the answer or plea must be in the name of the in- 
 competent, by the guardian ad litem, and not in the name of 
 the latter on behalf of the former. 
 
 ""See Burdett v. Cain, 8 W. Va. 282; authorities supra. There seems 
 to be much confusion in the authorities on the question when the 
 guardian may maintain a suit against a stranger to recover original 
 possession of the ward's estate. See 21 Cyc. 188. 
 
 °' The powers of the guardian ad litem are quite .similar to those 
 of the prochein ami, qu. rid. supra. Wliile he may not, by his admis- 
 sions or stipulations, prejudice the rights of the incompetent, he may 
 consent to or waive mere matters of procedure not affecting the sub- 
 stantial rights of the ward; for example, he may consent to a hear- 
 ing in vacation, or to a continuance of the cause, etc. Thompson 
 V. Maxwell, etc., Co., 168 U. S. 451; Waterman v. Lawrence, 19 Cal. 
 210, 79 Am. Dec. 212; Lemmon v. Herbert, 92 Va. 653; Va. Code 1919, 
 § 6308. See Sale of Infants' Lands, post. 
 
 " Where the affairs of the lunatic defendant are in the hands 
 of a regularly appointed committee, whose interests are not in con- 
 flict with those 'of the lunatic, the committee may make defense, and 
 no guardian ad litem is necessary. Hinton v. Bland, 81 Va. 588 (per 
 Lewis, P.). 
 
S6 Equity Pleading and Practice 
 
 CHAPTER VIII. 
 
 Outline of the Pleadings. 
 
 § 107. Preliminary. — The pleadings and the practice in 
 chancery are much less technical and complex than those at 
 law. Framed only for the administration of justice between liti- 
 gants, they are, in the main, based on practical convenience and 
 common sense, unincumbered, as are the pleadings at law, by 
 hard and fast rules that owe their origin to an outgrown regime. 
 In these respects the equity procedure is in striking contrast 
 with the procedure at common law, which, in many aspects, has 
 elevated questions of form and of adherence to technical rules 
 above considerations of justice to litigants. In the former, the 
 question is rather. Which party has the better right? In the lat- 
 ter, unmodified. Which counsel has the better wit? 
 
 § 108. The pleadings — continued. — That the student may 
 obtain a bird's-eye view of the pleadings which he is to en- 
 counter in his subsequent study of them, the more important 
 pleadings in chancery are here listed, with a very brief state- 
 ment of the general function of each — leaving a more detailed 
 explanation of these functions for later treatment. 
 
 1. Aggressive Pleadings. 
 
 (1) The Original Bill. 
 
 A more or less formal statement of the material facts out of 
 which arise the equities which it is the purpose of the suit to 
 protect or enforce. It is the only method of obtaining the ear of 
 the court in an original proceeding. 
 
 (2) The Amended Bill. 
 
 A second bill filed by the plaintiff to correct some defect, or 
 supply some omission, inherent in the Original Bill— and used 
 also to take the place of a special replication. 
 
Outline of Pleadings 57 
 
 (3) The Supplemental Bill. 
 
 Substantially the same as the Amended Bill, except that the 
 defect to be corrected, or the matter to be supplied, is due to 
 some occurrence happening since the Original BUI was filed. 
 
 (4) The Cross-Bill. 
 
 A bill filed in a pending suit by a defendant, against the 
 plaintiff, or against a co-defendant, or both, for the purpose of 
 obtaining either discovery or affirmative relief, or both, and not 
 merely for defense. It inaugurates a cross-suit in connection 
 with the subject-matter of the original suit. The student must 
 observe that a cross-bill may be filed only by a defendant. 
 
 (5) The Petition. 
 
 An aggressive pleading, filed in a pending suit, usually by a 
 stranger to the suit (that is, one not a party), with the purpose 
 of being made a party, in order to assert some right involved in 
 the litigation— whence the term "intervention proceedings." 
 
 (6) The Bill of Revivor. 
 
 A bill filed in a pending suit, which, by reason of death of 
 a party (or, at common law, the marriage of a feme) has abated, 
 and the interests of the decedent have been transmitted to oth- 
 ers as his successors in title. The purpose of the Bill of Re- 
 vivor is to set up the rights of the successor or successors of 
 the decedent, and to revive the original suit, so that it may con- 
 tinue, in its changed form, to a final decree. 
 
 (7) The Bill of Review. 
 
 A bill filed in the trial court, and after a final decree, by any 
 party to a pending suit, plaintiff or defendant, for either of 
 two purposes : (a) To call the attention of the court to some 
 error of law committed by the court in previous proceedings in 
 the cause, apparent on the record, and detrimental to the party 
 filing the Bill of Review; and praying the same court to review 
 the decree and correct the error; or (b) To bring to the at- 
 tention of the court new and material evidence discovered since 
 
58 Equity Pi,eading and Practice 
 
 the final decree, which evidence could not have previously been 
 discovered by reasonable diligence — and praying for a rehearing 
 on such newly discovered testimony. 
 
 The circumstances under which such a bill may be filed, as 
 well as the rehearing of interlocutory decrees, will be considered 
 later. 
 
 '"2. Defensive Pleadings. 
 
 (1) The Demurrer. 
 
 A pleading which raises an issue of law, and not of fact. Its 
 purpose is to test the sufficiency of the adversary's case as made 
 by the pleading demurred to. It admits, for purposes of the de- 
 murrer, all the facts properly pleaded by the adversary, and 
 submits to the court the question whether these facts entitle 
 the adversary to the relief sought. It may be filed only to an 
 aggressive pleading. 
 
 (2) The Plea. 
 
 A pleading by which the defendant offers a single fact, or a 
 combination of circumstances all tending to one point, as a 
 complete" defense to the whole bill, or to some distinct and ma- 
 terial portion thereof — e. g., the statute of limitations, the stat- 
 ute of parol agreements, a denial of the contract alleged, pay- 
 ment, etc. 
 
 (3) The Answer. 
 
 The most common method of making defense to a suit in 
 equity. By the answer, the defendant enters into a defense at 
 large of all the equities asserted in the bill. The answer makes 
 the discovery called for, if any, or explains why it cannot be 
 made — and sets out at length the circumstances relied upon to 
 repel the plaintiff's claim. A striking peculiarity of the an- 
 swer, as we shall see later, is that it is not only a pleading, but, 
 by the unwritten law, it is a self-serving instrument of evidence 
 as well. 
 
Outline o? Pleadings 59 
 
 (4) The Disclaimer. 
 
 A rather unusual pleading, by which one who has been im- 
 pleaded in a chancery suit, but against whom no claim is as- 
 serted, denies having, or ever having had, any claim, title or 
 interest, or any pretense thereof, in or to the subject-matter of 
 the litigation, and disclaiming any interest in, such litigation. 
 Such a pleading cannot, therefore, be resorted to by one against 
 whom the plaintiff asserts a claim, or of whom discovery is 
 sought. One may disclaim a right but not an obligation or duty. 
 
 3. Pleading Completing the Issue. 
 
 TKe Replication. 
 
 The very brief pleading by which the plaintiff takes issue on 
 the facts set up in defendant's plea or answer. It is a bare de- 
 nial of such facts, and its purpose is simply to put the defend- 
 ant on notice that his defensive allegations of fact are not ad- 
 mitted, but must be established by evidence. On the filing of the 
 replication, the parties are supposed to be at issue, and the cause 
 ftiatured and ready for the taking of testimony. 
 
 Reminder. — The student is again reminded that the foregoing 
 list presents the principal pleadings in equity only in barest out- 
 line, and that a more minute study of them must be made in the 
 following pages. 
 
 We are now ready to take up a consideration of the several 
 pleadings in somewhat greater detail. 
 
60 Equity Pi^eading and Practice 
 
 CHAPTER IX. 
 
 The Bill. 
 
 § 109. No forms of action in equity. — In the equity pro- 
 cedure one encounters no bewildering rules as to the name or 
 classification of the particular suit, or, according to the nomen- 
 clature at law, "form of action." When from an investigation 
 of the law and facts, counsel has determined that the chent has 
 a good cause for equitable relief, he is saved the problem of 
 wasting brain-sweat in deciding whether he shall sue in debt^ 
 assumpsit, or covenant, in trover or replevin, in trespass vi et 
 armis or trespass on the case. He simply decides to file a "bill 
 in equity." 
 
 Naturally, however, as a guide to clear thinking, intelligent 
 counsel will always mentally classify the particular equity suit 
 that he proposes to institute — as a bill for specific performani^, 
 for injunction and relief, to trace trust funds, etc. 
 
 § 110. Bills continued — classification. — While a scien- 
 tific classification of bills is of no practical importance, it may 
 be well to indicate the classes into which they naturally fall, 
 and into which courts and text-writers divide them. These are 
 (1) Original Bills, and (2) Bills not Original. 
 
 These terms of themselves indicate the difference between 
 the two classes. The Original Bill is the first pleading filed by 
 the plaintiff. In it the case is stated, and the desired relief 
 prayed for. In the later development of the case, it frequently 
 becomes necessary for the plaintiff to amend or supplement his 
 first statement, whence we have an "amended" or "supple- 
 mental" bill ; or to revive the suit which has abated by the death 
 of a party, whence the "bill of revivor" ; or for a defendant tO' 
 set up a counter-claim against the plaintiff or some other de- 
 fendant, which is done by "cross-bill" ; in all of which cases 
 the bills are not original, and hence are so classified. 
 
Bills 61 
 
 ( 1 ) Original Bills. 
 
 § 111. Classification. — The classification of original bills 
 is extremely simple, namely, (a) Those praying for relief; (b) 
 Those not praying for relief. Here, again, no explanation of 
 terms seems necessary. 
 
 § 112. (a) Bills praying relief. — A bill praying for le- 
 lief is one that calls upon the court by its decree to protect or en- 
 force some equitable right of the plaintiff — as, for example, a 
 bill for an injunction, or for the specific performance of a con- 
 tract. Most bills filed in equity are of this nature. 
 
 § 113. (b) Bills not praying relief. — These are com- 
 paratively rare. They are filed either to obtain evidence for use 
 in another forum ("discovery" only), or to preserve evidence 
 which is likely to be needed in future litigation, and is in dan- 
 ger of being lost by reason of the apprehended death or removal 
 of witnesses ("perpetuation of testimony"). Such bills will be 
 more particularly noticed hereafter. 
 
 (2) Bills Not Original. 
 
 § 114. Bills not original. — As already indicated, all bills 
 filed subsequent to the original bill, are classified as Bills not 
 original — for example, amended bills, cross-bills,, bills of re- 
 view, etc. 
 
 Following the foregoing classification, we shall now take up, 
 in order, the several classes of bills mentioned in this chapter. 
 
62 Equity Pleading and Practice 
 
 CHAPTER X. 
 The Bill in Detail. 
 
 (a) Original Bills Praying Relief. 
 
 § 115. The purpose of the bill. — The purpose of the bill 
 is twofold: (1) To state the plaintiff's case for the informa- 
 tion of the defendant in the preparation of his defense; and 
 (2) for the information of the court in the trial of the cause, 
 and to fix the issues. 
 
 The defendant is supposed to know the plaintiff's grievances 
 only from his statevient of them in the bill; and it is to the pre- 
 cise case thus stated, and to that case only, that the defendant 
 can be required to answer; to the case so made the evidence must 
 he confined; and no relief will be granted that does not substan,- 
 iially accord with the case as m^de in the bill}- Hence the im- 
 portance of accurate knowledge, by counsel, of the facts of his 
 case, and of the law applicable thereto, before he undertakes to 
 present his case in the form of the bill. 
 
 It is true that courts of equity are liberal in permitting amend- 
 ments for the purpose of patching up a rickety pleading, or to 
 meet unexpected phases of the proofs, so that a serious defect 
 in the bill is not necessarily fatal to the plaintiff's case; but such 
 amendments, when the necessity therefor is due to his fault, re- 
 flect upon counsel's professional skill, and cause delay and ex- 
 pense. 
 
 § 116. The bill continued — several parts. — Commenta- 
 tors usually divide original bills into nine parts. The statement 
 that such bills consist of so great a number of parts, is not 
 meant to convey the idea that the rules of chancery pleading 
 require any specific division into parts, or that counsel should 
 
 ' Fulton V. Cox, 117 Va. 669; Fleenor ■;■. Hensley, 131 Va. 367. 
 Allegata and probata must "jump together": Boston Blower Co. v. 
 Carman Lumber Co., 94 Va. 94. 
 
The Original Bill 63 
 
 consciously have these parts in mind in drawing the bill; but 
 rather that in the orderly setting out of an equitable claim, the 
 statement naturally resolves itself into these, or some of these, 
 parts. 
 
 The emphasis usually laid upon these several parts or divi- 
 sions of the bill may create the erroneous and discouraging im- 
 pression upon the mind of the student that a bill in equity is 
 a quite technical and complicated pleading. ^ 
 
 1. The Several Parts -of the Bill.^ 
 
 117. (1) The address. — Bills are addressed to the chan- 
 cellor, by his official designation. The name of the cbancelli.;r 
 may be used or not at the discretion of the draughtsman. Thus : 
 "To the Honorable Archibald D. Dabney, Judge of the Corpora- 
 tion Court of the City of Charlottesville ;" or "To the Honorable 
 the Judge of the Corporation Court," etc. ; "To the Judges of 
 the District Court of the United States for the Western Dis- 
 trict of Virginia." 
 
 § 118. Names of plaintiffs. — After the address to the 
 chancellor or court, the bill should open with a statement of the 
 name of the plaintiff, or names of the several plaintiffs, with his 
 or their respective places of abode. In the bill they designate 
 themselves as "your orators," or "your complainants." In all 
 legal procedure, at law and in equity, the several parties always 
 speak in the third person, and never in the first. 
 
 § 119. The same — pleading by initials. — In the interest 
 
 "^ The same impression would arise if the student endeavored to 
 learn from a printed book, and for recitation thereon in the lecture 
 room, the several divisions of his weekly home-letter. He would 
 learn that his letter should consist of many parts, namely, (1) the 
 date and post-office address in the righthand corner, and not in the 
 left; (2) the complimentary address, as "Dear Mother;" (3) acknowl- 
 edgment of the last letter from home, with check (if any) enclosed; 
 (4) comments on the late home news; (5) information as to the 
 writer's health; (6) assurances that he is learning much law — espe- 
 cially Equity Pleading; (7) results of his last examinations; (8) 
 prayer for additional check. Number (9) and others may be supplied 
 by -the student himself. Perhaps this comparison may induce us to 
 approach the consideration of the nine parts of the bill with courage. 
 A simple form of bill appears in the Appendix, post. 
 
 ' See Equity Rule 20, the purpose of which is to simplify and 
 shorten bills in the Federal courts. 
 
64 Equity Pleading and Practice 
 
 of the certainty required by the rules of good pleading, and es- 
 pecially for the purpose of more certain identification of the 
 parties litigant, then and thereafter, the names of the parties, 
 both plaintiff and defendant, should be stated with the surname 
 and at least one Christian name written at large, and not by ini- 
 tials merely. Married women should, of course, be designated 
 by their own Christian names, and not by the names oi their 
 husbands. Thus "Mary Jane Smith" (omitting "Mrs.") and 
 not "Mrs. John Smith." 
 
 Pleading by initials violates the rules of scientific pleading, 
 whether at law or in equity, as introducing inaccuracy and un- 
 certainty into pleadings and decrees, and is forbidden by the 
 rules of practice in many states. Under the loose practice ob- 
 taining in Virginia, and in the Southern and Western States, 
 such method of pleading is believed to be the rule rather than 
 the exception. A recent dictum, however, by the Virginia court, 
 in Richmond v. Gardner,* should bring the undesirable habit 
 sharply to the attention of the Virginia bar, and to the profes- 
 sion of the South, where the practice most widely prevails.^ 
 
 * 128 Va. 676. The court's language here declares that a judgment 
 docketed and indexed (it does not appear in what form the judgment 
 was originally entered) against "Moon, Hawley & Co.," without 
 more, is invalid as notice to subsequent purchasers, because of the 
 omission of the "'Christian" names of the parties. In absence of 
 statute permitting a partnership to be sued as a legal entity, and 
 therefore in the firm name only, such a judgment as described is 
 void for uncertainty, even between the parties — as much so as a judg- 
 ment against "Smith", simply. And if a judgment in that form be 
 invalid, it is clear that a docketing in that form is wholly ineflfective as 
 notice to subsequent purchasers. But there seems to have been no 
 necessity in the principal case for the court to declare that the 
 "Christian" names of the judgment debtors must appear, and that 
 initials are insufficient. The court has obviously used the term 
 Christian names inadvertently for individual names — the form in which 
 the rule as to partners as defendants is usually expressed. If every 
 judgment in Virginia, docketed only in the initialed surname of the 
 defendant, instead of the Christian name, is to be regarded as un- 
 docketed, as the court declares, the situation is indeed a serious one, 
 and calls for prompt legislative intervention. 
 
 " An editorial in the American Law Review (reproduced in 4 Vir- 
 ginia Law Reg. 783), denounces this practice as slovenly, and un- 
 worthy of a profession that prides itself on the accuracy of its phrase- 
 ology. The Virginia lawyer should be interested to learn that this 
 loose practice does not prevail in the Northern and Eastern States, 
 and that "the practice seems to have originated in Virginia (although 
 it does not prevail in Maryland), and to have extended thence over 
 
The Bii,i, — In Detail 65 
 
 § 120. The same — statement of residence. — Good 
 pleading requires not only that the names of the complainants 
 be thus stated with certainty, but that, for similar reasons, their 
 places of abode be likewise stated. This good practice does not, 
 however, prevail generally among Virginia pleaders. 
 
 It is needless to add that where the jurisdiction of the court 
 depends on questions of residence or of citizenship, such resi- 
 dence or citizenship is an essential allegation.'^ 
 
 § 121. The same — Federal court rtde. — By equity Rule 
 25, it is provided that every bill, "shall contain the full name 
 when known, of each plaintiff and defendant, and the citizen^ 
 ship and residence of each party." 
 
 § 122. (3) Statement of plaintiff's case — "stating 
 part." — This is naturally and essentially the most important 
 part of the bill. It is here that the plaintiff sets out, in extenso, 
 the ultimate facts constituting his case against the defendant or 
 defendants. 
 
 These facts should be stated with certainty, directness and 
 clearness, and not by way of inference, and always according to 
 
 the Southern States. It never seems to have obtained the sanction of 
 the courts, and so far as they have spoken upon the subject, both 
 North and South, they have expressed their condemnation. Wilson 
 V. Shannon, 6 Ark. 196; Norris v. Graves, 4 Strobh. Law (S. C.) 32; 
 Seely v. Boon, Coxe (N'. J.) 1, 1 N. J. Law 138; Chappel v. Proctor, 
 Harp. Law (S. C.) 49; Miller v. Hay, 3 Exch. 14; Kinnersley v. Knott, 
 7 C. B. 980; Turner v. Fitt, 3 C. B. 701; Oakley v. Pegler, 46 N. W. 
 920; Beggs %\ \\'ellman, 82 Ala. 391; Tweedy v. Jones, 37 Conn. 42; 
 Nash V. Collier, 5 Dowl. and L. 341; Fewlass v. Abbott, 28 Mich. 
 270; Monroe Cattle Co. v. Becker, 147 U. S. 47. * * »_ Nor is 
 the usage confined to men alone. In the case of married women an 
 additional complication is introduced. Under this peculiar practice, 
 married women are sued, not by their Christian names, not even by 
 their own initials, but by the initials of their husbands, with the pre- 
 fix 'Mrs.' * * _*>'^ 
 
 Pleading by initials is not permitted in the Federal Court.^ 
 
 ° "The description of him'' [one of the parties] "by initials," says 
 the Supreme Court of the United States, per Gray, J., "is but an il- 
 lustration of a loose and careless practice which this court does not 
 countenance." Walton v. Marietta Chair Co., 157 U. S. 343. See 
 also 31 Cyc. 96; Equity Rule 25 (1). 
 
 ' See Jurisdiction, ante, ch. ii. 
 
66 Equity Pleading and Practice 
 
 their logical sequence.^ 
 
 Wherever the plaintiff's case depends in whole or in part on 
 documentary evidence, such documents should be here briefly 
 described according to their legal effect, and incorporated into 
 the bill by reference — as "the original (or an exemplified) copy 
 of the said deed (or other document) is herewith filed as a part 
 of this bill, marked Exhibit No. 1 and prayed to be read as a 
 part of this bill as if herein set out at large;" and the document 
 in question should be filed along with the bill. 
 
 In drawing this portion of the bill, the draughtsman should 
 assure himself that the facts stated constitute a proper case for 
 equitable rehef ; and he should test his final draught by himself 
 interposing, mentally, a demurrer to his own pleading. If the 
 statement will withstand a demurrer, and is susceptible of proof 
 by available testimony the young pleader mi>.y feel well satis- 
 fied with his work, and confident of a favorable result. 
 
 § 123. (4) The common confederacy clause. — The use 
 
 of this clause is now practically obsolete, and mention of the 
 clause is only for its historical interest. One of the original 
 grounds of equity jurisdiction was the existence of a combina- 
 tion and confederacy of the powerful to overawe the weak, and 
 to resist or pervert the administration of justice in the ordinary 
 common law courts — a situation, in general, long since passed 
 away, and with it the necessity and the use of the clause. Of 
 course if a conspiracy in fact is believed to exist, this clause of 
 the bill will be retained. 
 
 § 124. (5) The charging part.— This part of the bill 
 (when used) contains a statement of the anticipated defense 
 (other than a mere denial), followed by an allegation (or 
 "charge") showing the futility of such defense. 
 
 In many cases there is no occasion to use this clause, and in 
 none is it essential. Occasions arise, however, where it niay be 
 useful. 
 
 ' "A short and simple statement of the ultimate facts upon which 
 the plaintiff asks relief, omitting any mere statement .of evidence." 
 Equity Rule 25 (3). 
 
The Bill — In Detail 67 
 
 § 125. The same — advantages. — While, as stated, the 
 clause may be omitted, it possesses, when proper circumstances 
 concur, at least one important advantage, namely, in obviating 
 the necessity for a further pleading by the plaintiff (in former 
 times a special replication, now superseded by the amended bill ) 
 in reply to the defense thus anticipated, when actually set up. 
 
 For example, if the plaintiff, suing for specific performance 
 of a contract, anticipates that the defendant will set up the de- 
 fense of infancy, or the statute of parol agrectyienfs, which de- 
 fense the plaintiff expects to meet by proof, in the first case, 
 of ratification after full age, or, in the second case, of part- 
 performance, it is natural and proper to anticipate such defense, 
 and to meet it by counter-allegations in avoidance. If such de- 
 fense be not anticipated, and the ratification or part-perform- 
 ance be not charged in the bill, the result will be that when the 
 defendant sets up the defense, the plaintiff will be obliged to 
 file a new pleading in reply, in order properly to put the ques- 
 tion of ratification or of part-performance in issue. This, as 
 stated, in modern practice, calls for an amended bill. But by 
 anticipating the defense, and charging the defendant with the 
 ratification or the part-performance in the original bill itself, 
 the question of ratification or of part-performance is presented 
 as a part of the issue at the outset, without the further delay and 
 expense of amending the bill ; and the defendant, if required, 
 must make discovery, or take issue, as the case may be, in the 
 first instance, as to the truth of the charge of ratification or 
 pa rt-per formance . 
 
 § 126 (6) The jurisdiction clause. — This clause con- 
 sists of a general averment of jurisdiction in equity — the usual 
 form being that the plaintiff is "without remedy save in a court 
 of equity, where matters of this kind are only and properly cog- 
 nizable." 
 
 The clause is of no importance, and probably never was. 
 Where the case made by the bill is not one for equitable relief, 
 the presence of this clause does not cure the defect; nor does 
 its omission affect the jurisdiction where the bill otherwise 
 states a case proper for the cognizance of a court of equity. 
 
 Inasmuch, however, as the clause is still found in practi- 
 
68 Equity PivEading and Practice 
 
 cally all bills, the student is advised to follow general custom 
 by inserting the averment. 
 
 § 127. The same— special jurisdictional facts. — Should 
 the court be one of limited jurisdiction, or should there be spe- 
 cial statutory requirements operating as conditions precedent to 
 jurisdiction, the existence of such conditions must of course be 
 alleged. 
 
 Thus, the jurisdiction conferred by statute on the chancery 
 courts of X^irginia to entertain suits for divorce, prohibits the 
 exercise of this jurisdiction unless one of the parties has been 
 domiciled in this state for at least one year preceding the com- 
 mencement of the suit.^ The bill in such a case should, there- 
 fore, make proper allegations of domicile in this state. And so, 
 in a suit in the Federal courts, if the ground of jurisdiction be 
 diverse citizenship of the parties, the bill must specifically al- 
 lege such diversity of citizenship.^^ 
 
 § 128. (7) Prayer for answer — interrogating clause. — 
 
 This is commonly called the "interrogating clause," since it is 
 here that the plaintiff, if he. desires to search the conscience of 
 the defendant, calls upon him to make answer under oath, to 
 all matters and things alleged against him in the bill. 
 
 And, in order to prevent evasion, and more carefully to search 
 the defendant's conscience, it is here that the plaintiff pro- 
 pounds, or may propound, specific and searching interrogatories, 
 framed with such particularity and such variations as will com- 
 pel a full answer. 
 
 § 129. The same — waiver of answer under oath. — 
 
 As we shall see later, the answer of a defendant, when respon- 
 sive to the bill, is evidence in his behalf, and, by the rules of the 
 forum, the defendant cannot be deprived of this advantage by 
 a waiver in the bill of an answer under oath. In modern times, 
 however, by statute, in most of the states the plaintiff may waive 
 an oath to the defendant's answer, and thus reduce the answer 
 
 ° Va. Code 1919, § 5103. See Jurisdiction, ante, ch. ii; Divorce Suits, 
 ch. xxix. 
 
 " "A short and plain statement of the grounds upon which the 
 court's jurisdiction depends." Equity Rule 25 (2). 
 
The Bill — In Detail 69 
 
 to a mere pleading possessing no evidentiary value. ^^ If such 
 waiver is to be inserted in the bill, it should be done under this 
 seventh clause. 
 
 130. The -same — in Vijrginia — prayer for parties. — 
 
 According to established practice in Virginia, this seventh clause 
 consists not only of a prayer for answers from the defendants 
 (with or without waiver of the oath), but, in addition, a prayer 
 that the adversaries, by name, be made parties defendant to the 
 bill.i2 
 
 In Virginia, therefore, this clause becomes not only a prayer 
 for. answers but a prayer "for parties defendant." 
 
 § 131. (8) Prayer for relief. — This is oiie of the most 
 important parts of the bill, and should receive the thoUgthful at- 
 tention of the draughtsman. Prayers for relief are of two kinds : 
 
 (a) For special relief — which may be in the alternative; and 
 
 (b) for general relief. 
 
 § 132. The same — prayer for special relief. — After 
 having made a full statement of his grievances, and demanded 
 answers to his charges from the defendants by name, the bill 
 would necessarily be incomplete did it not round out the com- 
 plaint by asking for certain specific relief — as that the contract 
 set up in the bill be enforced, or rescinded, or reformed ; that the 
 wrong complained of be enjoined; that the mortgage asserted in 
 the bill be foreclosed, etc.^^ 
 
 § 133. The same — prayer for alternative reliief. — A 
 
 fundamental rule of pleading at*law,is that "pleadings must not 
 be in the alternative." This rule is not insisted on in equity 
 pleading, and may be wholly ignored in the prayer for relief. 
 
 " See The Answer. j>ost, ch. xvi. 
 
 '" "In tender consideration whereof, and being without remedy 
 save in a court of equity where matters of this kind are ojjly and 
 properly cognizable" (jurisdictional clause), "your orator prays that 
 the said A., B., C. and D., be made parties defendant to this bill, 
 and may answer the same, and every allegation thereof, on oath, 
 as fully and particularly as if the same were here repeated, and they 
 were thereunto particularly interrogated" — (or, if answers under oath 
 are not desired, "may answer the same, but not under oath — the plain- 
 tiff expressly waiving answers under oath"). 
 
 " See Equity Rule 25 (5). 
 
70 Equity Pleading and Practice 
 
 That is to say, where the plaintiff, in the stating part of his 
 bill, has made a case proper for equitable relief, but is uncertain 
 as to the specific relief to which he may be entitled on the case 
 made in the bill, and to be made in the proofs, his prayer for re- 
 lief may be in the alternative. 'By this is meant, that the plaintiff 
 may pray that one kind of relief be granted, or, that if his right 
 to that particular relief should fail to be established under the 
 law and the evidence, then that the court may grauL other con- 
 sistent relief, naming it.'* 
 
 § 134. The same — prayer for general relief. — It some- 
 times happens that after having stated a case proper for equity 
 cognizance, the bill either fails to ask for all the specific relief to 
 which the plaintiff is entitled, or else mistakes the nature of the 
 relief properly applicable to the case made in the bill — or, again, 
 that while the proofs fail to establish plaintiff's right to specific 
 relief prayed, they yet establish the right to some other consis- 
 tent relief. 
 
 To meet such a situation, it is customary for the plaintiff, im- 
 mediately following the prayer for specific relief, to insert a 
 prayer for general relief — "and for such other relief as to eq- 
 uity may seem meet and the nature of the case require." 
 
 Under the prayer for general relief the court may grant any 
 relief to which the material facts and circumstances put in is- 
 sue by the bill, and sustained by the proofs, entitle the plaintiff. 
 But such relief must be consistent with the case made.'^'^ 
 
 " Tenant j'. Dunlop, 97 Va. a35; Baker v. ':feerry Hill Co., 109 
 Va. 776; Equity Rule 25 (5). Thus, in a suit for specific performance 
 of a contract to convey real property, wherein the bill sets up an 
 apparent deficiency of acreage, the prayer may be for specific per- 
 formance as to the whole acreage if to be had, or, if not, that the 
 contract be enforced to the extent of defendant's ability, and 'com- 
 pensation be made for the deficiency. So, relief may be asked against 
 A., if he authorized B. to collect certain money, or against B., if 
 he colFected it without A.'s authority. Thomason v. Smithson, 7 
 Port. (Ala.) 144. 
 
 '' See McGowan v. Parish, 337 U. S. 285; Hurt v. Jones, 75 Va. 
 341, 352; Woolfolk v. Graves, 113 Va. 1039. "This principle is so 
 well known to the profession that it is difficult to believe that a lawyer 
 of any experience would prepare a bill omitting the prayer for gen- 
 eral relief" — Burks. J., in Steinman v. Olinchfield Coal Corp., 121 Va. 
 611, 639-40, in holding that where the bill has been lost after suit 
 
The Bii:.!, — In Detail 71 
 
 § 135. The same — illustrations. — Thus, under a bill 
 brought to rescind a contract for fraud, the plaintiff cannot 
 have specific enforcement, under the prayer for general relief — 
 because of the inconsistency of the two kinds of relief. '^*' 
 
 In Smith v. Smith " the bill, though stating a good case, 
 failed to ask for any relief, general or special. It was held that 
 by fihng an answer to the merits, without otnection, the defend- 
 ant waived the irregularity, and appropriate relief was granted. 
 
 In Beall v. Silver^^ the prayer for special relief omitted to 
 ask for interest on the principal of the debt asserted. Interest 
 was allowed under the prayer for general relief. 
 
 In Evans v. Roanoke Savings Bank ^^ the prayer for specific 
 relief sought the setting up and enforcement of a deed of trust, 
 which the grantor had fraudulently procured to be released. 
 But as the rights of a bona fide holder had, in the meantime, at- 
 tached, so that the specific relief prayed for could not be granted, 
 a personal decree for the debt was entered against the fraudu- 
 lent debtor, under the prayer for general relief. 
 
 In Beach v. Bellwood 2** the bill made out a case for reforma- 
 tion of a written agreement, but failed to pray for that relief 
 specifically. Reformation was decreed under the prayer for 
 general relief. 
 
 So where the wife's bill for divorce fails to ask for alimony, 
 if the proofs establish a proper case for alimony it will be 
 granted under the prayer for general relief .^^ 
 
 In Johnson v. Merritt,^^ plaintiffs who sued as heirs of a hus- 
 band, were held not entitled, under the prayer for genecal re-, 
 lief, to assert inconsistent claims under the will of the wife. 
 
 ended, the court will presume that it contained a prayer for general 
 relief. Here, in a suit to enforce the lien of a judgment, removal of a 
 cloud from the title was held proper under the prayer for general 
 relief. 
 
 ^^ James v. Bird, 8 Rand. 510. 
 
 " 4 Rand. 95. 
 
 " 2 Rand. 401. 
 
 " 95 Va. 394. 
 
 '" 104 Va. 170. 
 
 ^ Haven v. Trammell (Okla.), 193 Pac. 631; Lynde v. Lynde, 162 
 N'. Y. 405, 56 N. E. 979, 76 Am. St. Rep. 332, 48 L- R. A. 679; 7 
 Va. Law Reg. 557. 
 
 "^ 125 Va. 162. 
 
72 Equity Pi^uading and 'Practice 
 
 § 136. The same — prayer for process. — By the original 
 practice of the High Court of Chancery in England, and infer- 
 entially by rule of the Federal courts,^^ the bill must contain 
 a prayer for process. 
 
 § 137. The same — in Virginia. — We have already seen 
 that according to the practice in Virginia, original process is 
 usually issued befo/e filing of the bill. Hence the prayer for 
 such process i.= useless, and rarely found in bills filed in the 
 Virginia courts. 
 
 § 138. (9) Bills continued — the conclusion. — By long 
 
 custom, bills conclude with the enigmatic phrase "And your ora- 
 tor will ever pray, etc." ^* 
 
 § 139. (10) Bills, continued — signature of counsel. — 
 
 The rule of the chancery courts requires bills, as all other plead- 
 ings, to be signed by counsel. Such signature identifies the 
 counsel with the cause, for the information of the court and its 
 officials, and of adversary counsel. The signature is also taken 
 to be, in a sense, a pledge of counsel's good faith in bringing the 
 suit, or filing the pleading, and is supposed to be a safeguard 
 against scandalous or other impertinent matter in the pleadings. 
 § 140. The same — Federal court rule. — In the Federal 
 courts the rule is that all pleadings shall be signed "indiiddually 
 by one or more solicitors of record" — that is, by counsel who 
 have been admitted to practice in the court in which the plead- 
 
 '^ Eauity Rule 13. 
 
 '* The modern phrase is an evolution fronl ancient forms, some 
 of which are subjoined. See IX Notes and Queries, 184: 
 
 "And your said almoner shall pray unto Almighty God for the 
 prosperous state of your lyfajestie, according to his, most bounden 
 duty, in most high honor and felicity long to reigu over us." 
 
 "And your said suppliant shall daily pray unto, God for your High- 
 ness' prosperous estate in royaltie long to reign." 
 
 "And your said subject shall daily pray to God for the prosper- 
 ous estate of your Majestie's Rayne." 
 
 "And your said humble subject shall duly pray to God for the 
 preservation of your Highnesse in all felicitie most happily long to 
 reigne." 
 
 "And your said supplyant shall daily pray for your honor." 
 
 "And your supplyant as nevertheless by duetie bounden shall daily 
 pray to God for the increase of your Honour." 
 
 It is evident, as suggested by the compiler, that the "etc." may 
 be filled up according to individual fancy. 
 
The Biti,— In Detail 73 
 
 ing is filed — "and such signatures shall be considered as a cer- 
 tificate by each solicitor that he has read the pleading so signed 
 by him ; that upon the instructions laid before him regarding the 
 case there is good ground for the same; that no scandalous mat- 
 ter is inserted in the pleading; and that it is not interposed for 
 delay." ^s 
 
 § 141. (11) The same— affidavit to bill.— The general 
 rule is that save where required by statute in certain statutory 
 proceedings, bills in chancery are not required to be sworn to. 
 
 § 142. Affidavit to bills — exceptions. — Two prominent 
 
 exceptions to this rule obtain, namely, (a) Bills seeking ex parte 
 action by the court {e. g. a preliminary injunction), where the 
 allegations of the bill are not prima facie established by docu- 
 mentary or other evidence accompanying the bill. The reason 
 for requiring an affidavit in this instance, is obvious ; and (b) 
 Bills for discovery and legal relief — that is. where the sole 
 ground of equity jurisdiction is the needed discovery from the 
 defendant — the controversy being one otherwise remediable at 
 law — and the court of equity is asked to retain the cause and 
 administer legal relief. Here the affidavit is required as a pledge 
 of good faith on the part of the plaintiff, and to prevent a fraud 
 on the eqtaity jurisdiction. ^^ 
 
 We shall see something more of these two classes of bills 
 heieafter, as well of certain statutory proceedings in which the 
 bill is required to be verified by affidavit. 
 
 2. General Characteristics of Bills. 
 
 § 143. General features. — In addition to the character- 
 istics of the bill already mentioned, looking chiefly to the state- 
 ment, in substance, of a proper case for the interposition of eq- 
 uity, there are numerous rules and customs observed by careful 
 and informed lawyers in draughting bills — some of which rules 
 are of mandatory character, and for the breach of which a de- 
 murrer may be interposed. Most of these rest in common sense, 
 
 "^ Equity Rule 24. 
 
 " Affidavit seems also proper in the case of bills to perpetuate 
 testimony (post, Ch. xi), and bills of interpleader. 
 
74 Equii'v Pi^Eading and Practice 
 
 and the young practitioner possessed of this saving grace would 
 follow them intuitively. ' 
 
 § 144. The same — facts, not mere legal conclusions, 
 should be stated. — It is improper to allege legal conclusions 
 instead of the facts from which such conclusions are drawn. 
 For example, if defendant is sought to be charged as trustee for 
 the plaintiff, the circumstances giving rise to the trust must be 
 alleged ; so, if the purpose of the bill is to have a deed set aside 
 for the fraud of the defendant, or because the contract was 
 tainted with usury or illegality, a mere allegation that the trans- 
 action was fraudulent, or usurious, or illegal, without the facts 
 constituting the fraud, or usury, or illegality, would be insuffi- 
 cient. 2'' 
 
 § 145. The same — arguing the case in the bill — recit- 
 ing evidence, etc. — It is bad form to anticipate the argument 
 at the hearing, by making use of the bill for that purpose. It is 
 an established rule of equity pleading that "the case must not 
 be argued in the hill." Nor should the allegations be in argu- 
 mentative form,28 or include recitals of mere matters of evi- 
 dence. But where the evidence is of a documentary character, 
 and the documents are filed with the bill, it is often proper, and 
 sometimes necessary for purposes of a clear statemert, to make 
 specific reference to such evidence. But if plaintiff charge de- 
 fendant with fraudulent representations, and ask rescission of 
 the contract, it would be highly improper to allege in the bill 
 that A, a third party, was present and heard the misrepresen- 
 tation. The proper method is simply to change the misrepresen- 
 tation, with the accompanying facts, and to establish the 
 allegation by introducing A as a witness at the proper time.^^ 
 
 " Ambler v. Choteau, 107 U. S. 586; Ritchie v. McMullen, 159 U. 
 S. 235; First Nat. Bank v. Chehalis Co., 166 U. S. 440. "The de- 
 fendant says that the claim asserted in the bill is barred by the 
 statute of limitations", is a good illustration of pleading a legal 
 conclusion. 
 
 " Bassett v. Cunningham, 7 Leigh 402, 408. 
 
 " See Equity Rule 25 — "a short and simple statement of the ulti- 
 mate facts * * * omitting any mere statement of evidence." An 
 interesting collection of copies of early bills will be found in 31 
 Harvard Law Review, 844. See copy of a modern bill, post. Ap- 
 pendix. 
 
BiLi,s — Not Praying Relief 75 
 
 CHAPTER XI. 
 
 The Bill— Continued. 
 
 Original Bills Not Praying Relief. 
 
 § 146. Bills not praying relief. — Examples of such bills 
 are few. The leading instances are : 
 
 (1) Bills to Perpetuate Testimony, and 
 
 (2) Pure Bills of Discovery. 
 
 § 147. (1) The purpose of the first is to seek the aid 
 of the court in taking and preserving the testimony of certain 
 witnesses for use in future litigation should it arise — the plain- 
 tiff fearing the loss of the testimony by death of the witnesses 
 or otherwise. 1 
 
 § 148. (2) The object of the second— the pure bill of 
 discovery — is to compel the adversary to disclose facts material 
 to the plaintiff's case in an action at law, pending or contem- 
 plated between the same parties ; such a resort to equity being 
 necessary by reason of the common law disqualification, as a 
 witness, of any party to the action — a rule which was enforced in 
 equity as well as at law, save in the case of an answer in chan- 
 cery. 
 
 The removal by statute, in all the states, of this disqualifica- 
 tion, aided by statutes permitting interrogatories to be filed by 
 either party, at law, has rendered practically obsolete the use of 
 the pure bill of discovery. - 
 
 In neither of these proceedings, it will be observed, does the 
 bill call upon the court to adjudicate any controversy between 
 the parties — the purpose, in either case, being merely to secure 
 evidence to be used at some future time, or in some other court. 
 
 ' For a statutory substitute, see Va. Code 1919, § 63.3.J 
 ' Id. §§ 6208, 6336-6238. 
 
76 Equity Pi^eading and Practice 
 
 Hence the propriety of classifying these as bills Not Praying 
 Relief.^ 
 
 § 149. Pure bill of discovery — continued. — A pure bill 
 of discovery seeks no relief in consequence of the discovery. It 
 is used in aid of the jurisdiction of some other court; as to en- 
 able the plaintiff to prosecute or defend an action at law, or 
 any other legal proceeding of a merely civil nature, before a 
 tribunal unable to compel a discovery on oath.* 
 
 The necessity for bills of this character grew out of the com- 
 mon law rule that a party to a judicial proceeding was not a 
 competent witness. To prevent a failure of justice, equity per- 
 mitted either party to an action at law to secure the testimony 
 of his adversary by a bill of this character. 
 
 § 150. The same — continued. — A bill of this nature must 
 state the matter touching which a discovery is sought, the in- 
 terest of both plaintiff and defendant in the subject matter and 
 the right of the former to require the discovery from the latter. 
 
 Such a bill requires no affidavit, nor is it needful that the dis- 
 covery be indispensable to the party's case. He is entitled to 
 discovery if he shows that information or documents in the de- 
 fendant's possession constitute material evidence in his behalf, 
 although merely cumulative.* 
 
 If, however, the bill is not a pure bill of discovery, but asks 
 for legal (as distinguished from equitable) relief, it must ap- 
 pear by affidavit that the discovery is essential to the plaintiff's 
 case.* 
 
 § 151. The same — discovery from corporation. — As a 
 
 corporation cannot answer under oath, a pure bill of discovery 
 cannot be maintained against a corporation as sole defendant. 
 The proper practice is to make some officer of the corporation, 
 supposed to be familiar with the facts, a co-defendant, and ask 
 
 ' For further details, see Story, Eq. PI. 300 et seq. 
 
 * Story, Eq. PI. §§ 311 et seq.; article by Judge Lamb, 7 Va. Law- 
 Reg. 107. 
 
 " McFarland v. Hunter, 8 Leigh 489, 492-494; 1 Story, Eq. Jurisp. 
 64k-74e; 3 Id. 1483. 
 
 ' Infra, i.. 11. 
 
Bills of Discovery 77 
 
 for discovery from himJ 
 
 § 152. The same — modern disuse of such bills — statu- 
 tory substitutes. — Bills of discovery are now, with us, in large 
 measure, superseded in practice by two statutory provisions, one 
 allowing- a court of law to compel a discovery upon oath, in an- 
 swer to interrogatories filed, wherever it would be compelled 
 upon a bill of discovery, if the interrogatories have not been 
 unreasonably delayed ; ^ and the other declaring parties to suits 
 competent to give evidence on their own behalf, and to be com- 
 petent and compellable to attend and give evidence on behalf of 
 any other party to the proceeding.* 
 
 The statute, however, still preserves the right of any party 
 to file a bill of discovery, instead of interrogatories. ^o 
 
 § 153. Bill for discovery and legal relief. — After equity 
 had assumed jurisdiction of pure bills of discovery, as explained 
 in the foregoing sections, it went a step further, and in pursu- 
 ance of its policy to give complete relief, assumed jurisdiction 
 to retain the case and dispose of the whole controversy, even to- 
 the administering of legal relief. 
 
 This jurisdiction is not exercised in every case, but chiefly in 
 those cases where the discovery is essential to prove the case, or 
 establish the defense, of the plaintiff in the bill, and where equi- 
 table remedies are appropriate for the relief sought. Inasmuch 
 as the plaintiflf is driven into equity by the necessity for dis- 
 covery, equity, in accordance with its custom of giving complete 
 relief when once it has assumed jurisdiction for any purpose, 
 may retain the bill, not only for purpose of discovery but for 
 relief as well— though the case otherwise involve legal rights 
 only. 11 
 
 ' Roanoke Street R. Co. v. Hicks, 96 Va. 510. But if the corpora- 
 tion answers, and the answer is verified, as of his personal knowl- 
 edge, by an officer of the corporation, the answer is entitled to all the 
 weight of a verified answer by an individual defendant: Carle v. 
 Corhan, 127 Va. 32.S; 7 Va. Law Reg. 145; infra, §§ 252-354. 
 
 ' Va. Code 1919, §§ 6236-6238. 
 
 ' Id. §§ 6208-6214. 
 
 " Id. § 6238; Smith v. Smith, 93 Va. 696. 
 
 " Few questions of equity practice .have evoked a greater di- 
 vergency of views than the circumstances under which equity will 
 administer legal relief because of having jurisdiction for purposes 
 
78 Equity Pi<eading and Practice 
 
 § 154. The same — affidavit to bill. — In a bill of this na- 
 ture, the plaintiff must allege the necessity for the discovery, 
 and, as an earnest of good faith, and to prevent a fraud on the 
 equity jurisdiction — since the case is one otherwise proper only 
 for a court of law — the plaintifif must make affidavit to the bill.'^^ 
 
 CHAPTER XII. 
 
 Bills Not Original. 
 
 1. Supplemental and Amended Bills. 
 
 § 155. Supplemental bills. — A supplemental bill, as its 
 name indicates, is a bill filed to supplement the original bill, 
 where, by reason of facts occurring since the original bill was 
 filed, new allegations, or new parties, or a new form of prayer 
 for relief, are made necessary. 
 
 Thus, where, subsequent to the filing of the original bill, in- 
 choate or contingent interests involved in the suit have, by 
 death or otherwise, become vested — or, where such interests 
 have, by the occurence of new facts, devolved upon other per- 
 sons — such enlarged interests or new parties should be brought 
 before the court by a supplemental bill. In short, a supplemen- 
 tal bill is one serving to supplement an original bill which was 
 sufficient at the time of its filing, but which has since become in- 
 sufficient by the occurrence of new facts materially altering the 
 original situation. i 
 
 § 156. Amended bills — two functions. — An amended 
 
 of discovery. Hence the bare outline here is offered with diffidence. 
 The question has received an elaborate, if inconclusive, examina- 
 tion in 1 Story, Eq. Jurisp. 64k-74e; 2 Id. 1480-1504; Story, Eq. PI. 
 (10th ed) 388; infra, §§ 197-301. 
 
 " 3 Pomeroy, Eq. Jurisp. 1415; Fletcher, Eq. iPl. & Pr. 811; Story, 
 Eq. PI. .288. 
 
 ' Fletcher, Eq. PI. & ;Pr. 385, 825; Story, Eq. PI. 33; 1 Barton, 
 Ch. Pract. 106; Wilson v. Wilson, 93 Va. 546; Glenn v. Brown, 99 
 Va. 322, 326-327; Bibb v. American, etc., Co., 109 Va. 361. 
 
Amended Bills 79 
 
 bill (closely akin to, but not to be confounded with, the supple- 
 mental bill) has two functions in the equity procedure. One of 
 these is to correct inherent imperfections in, the original bill, not 
 due to subsequent occurrences ; and the other, to serve the 
 purposes of a special replication to the plea or answer. These 
 functions are more fully explained in the sections following. 
 
 § 157. The same — first function. — As indicated, one of 
 the uses of the amended bill is to correct imperfections in the 
 original bill (in this aspect performing practically the office of 
 the supplemental bill, except that the former has relation to im- 
 perfections inherent in the bill when filed), or to introduce es- 
 sential additional facts which were then in existence. 
 
 In brief, an amended bill is one whose purpose is to incorpo- 
 rate some change in an original bill insufficient for complete re- 
 lief in its original structure .^ 
 
 § 158. The same — second function. — A second impor- 
 tant office performed by the amended bill is as the modern sub- 
 stitute for the special replication to the plea or answer — special 
 replications being no longer used in the equity practice. This 
 happens when it becomes necessary for the plaintiff to set up 
 new matter in response to a defense asserted in the plea or an- 
 swer. That is to say, under the modern practice the replication 
 may only traverse or deny, and may not confess and avoid, as at 
 law. If the plaintiff proposes to meet the allegations of the de- 
 fendant's plea or answer by confession and avoidance, he must 
 file an amended bill confessing the allegations and offering the 
 new matter in avoidance. 
 
 For example : If the defendant should in his answer set up 
 the defense of infancy, and the plaintiff means to deny the fact 
 of infancy, he must file the general replication; but if the plain- 
 tiff relies upon a ratification after full age (which he might 
 have alleged in his original bill but did not), instead of filing a 
 special replication setting upon such ratification (as he would 
 do at law), the plaintiff would be driven to file an amended bill, 
 
 Authorities supra. 
 
80 Equity Pleading and Practice 
 
 with this allegation inserted. ^ 
 
 § 159. Amendment of bills — freely allowed. — Courts of 
 equity are extremely liberal in permitting the plaintifif to amend 
 his bill, whenever this seems necessary to bring the substantial 
 merits of the case properly before the court. The granting of 
 leave to amend is in the discretion of the court, and is not 
 demandable as a matter of right — but the practice of the courts 
 is so liberal in this respect that instances of unjust decrees flow- 
 ing from mere slips in pleading are as rare in equity as they are 
 common at law.* 
 
 § 160. The same. — The circumstances under which 
 amendments are allowed or disallowed, are well stated in the 
 case of Hardin v. Boyd.^ 
 
 "In reference to the amendments of equity pleadings," says 
 Mr. Justice Harlan, in that case, "the courts have found it im- 
 practicable to lay down a rule that would govern all cases. This 
 allowance must, at every stage of the cause, rest in the discre- 
 tion of the court ; and that discretion must depend largely on the 
 special circumstancs of each case. It may be said generally 
 that in passing upon applications to amend, the ends of justice 
 should never be sacrificed to mere form, or by too rigid an ad- 
 herence to technical rules of practice. Undoubtedly great cau- 
 tion should be exercised where the application comes after the 
 litigation has continued for some time, or when the granting of 
 it would cause serious inconvenience or expense to the opposite 
 side. And an amendment should rarely, if ever, be permitted 
 where it would materially change the very substance of the case 
 made by the bill, and to which the parties have directed their 
 proofs." 
 
 § 161. The same — in the Federal courts. — ^The new 
 Equity Rules make most liberal provision for amendment of any 
 
 ' Simmons v. Simmons, 33 Gratt. 451, ^58. The reason for the 
 newer practice seems to be based on the policy of requiring the bill, 
 in its final form, to 'exhibit the complete case upon which the decree 
 is entered. 
 
 ' See Kelly v. Gwatkins, lOfi Va. 6; (Equity 'Rules 19, (38; Va. Code 
 1919, § 6084, permitting transformation of "a bill in equity into a 
 declaration at law, or vice versa. Supra, § 34. 
 
 ° 113 U. S. 756. ' I ! 
 
Amended Bills 81 
 
 'pleading or record — the language of the rule being that "the 
 court may at any time in furtherance of justice, upon such terms 
 as may be just, permit any process, proceeding, pleading or rec- 
 ord to be amended, or material supplementary matter to be 
 set forth in an amended or supplemental pleading. The court, 
 at every stage of the proceeding, must disregard any error or 
 defect in the proceeding which does not affect the substantial 
 rights of the parties." ^ 
 
 § 162. The same — making new case by amendment. — 
 
 In amending his bill, the plaintiff must be careful not so to 
 alter the frame of his bill as to make an entirely nezv case — that 
 is, a case which cannot be made to harmonize with that made 
 in the original bill. 
 
 The test, as stated by Keith, P., in Pettyjohn v. Burson,'^ by 
 which to determine whether the proposed amendment is proper, 
 is to consider whether its purpose is to supplement some mis- 
 take or omission "connected with the substance of the case, but 
 not forming the substance itself," or whether there is an aban- 
 donment of the entire case made by the original bill, and the 
 assertion of a new and different case by amendment. 
 
 The decisions on the subject, however, involve distinctions 
 so nice that the student must be content with the general prin- 
 ciple, and study its application as need arises. ^ 
 
 " Rule 3 9. See also Rules 28 and 34, both adopted in furtherance 
 of the policy of liberality in the amendment of pleadings. Rule 33 
 authorizes transfer of cases 'from the equity side to the ilaw side, and 
 vice versa, as in Virginia — with the necessary amendment of the plead- 
 ings. 
 
 ' (Va.),'22 S. E. 508. 
 
 ' See S Va. Law Reg. 411; 8 id. 437; n. 50 Am. St. Rep. 737; n. 
 16 C. C. A. 508; Whalen v. Gordon, 95 Fed. 305; Helton v. Apper- 
 son, 26 !Gratt. 207; Ewing v. Ferguson, 33 Gratt. 548; Straughn v. 
 Hallwood, 30 W. Va. 274, 8 Am. St. Rep. 39. The ruling of the ma- 
 jority in Watson v. Brunner, 138 Va. 600 (Burks, J., dissenting), 
 carries the privilege of amendment to the extreme limit. The bill was 
 by a sub-contractor to enforce either the personal liability of the 
 owner, or a mechanic's lien. After a decree denying both of these 
 praj'ers, an amendment was permitted, asserting an assignment, or 
 equitable lien, by virtue of an order on jthe owner from the general 
 contractor. As pointed out in the dissenting opinion, the inconsist- 
 ency between the original claims and the claim asserted in the amend- 
 ment, seems to violate the rule that an entirely new case may not 
 be set up by amendment. 
 
82 Equity Pi^Eading and Practice 
 
 § 163. The same — leave to file. — As already stated, reg- 
 ularly an amended or supplemental bill can only be filed by leave 
 of court. But in Virginia it is provided by statute,* that the 
 plaintiff "may of right amend his bill before the defendant's ap- 
 pearance; and, notwithstanding such appearance, a plaintiff in 
 equity may, at any time in the vacation of the court wherein the 
 suit is pending, file in the clerk's office an amended or supple- 
 mental bill, or bill of revivor ; whereupon the same proceedings 
 may be had as if leave to file it had been previously obtained in 
 court; but the court, on motion of a defendant, made at the 
 term to which process to answer the same is returned executed 
 on him, or, if it be returnable to rules, at the first term after it 
 is so returned, may dismiss such amended or supplemental bill, 
 or bill of revivor." * 
 
 § 164. Process on amended bill. — It is a general princi- 
 ple of the equity practice that the parties who have personally 
 appeared in the suit must keep themselves informed of the sub- 
 sequent proceedings without special notice — or, if inequity has 
 resulted to such a party by reason of lack of notice, he must 
 complain to the court before final decree. ^"^ 
 
 By the unwritten rule, this principle seems applicable to the 
 amended bill, the filing of which does not require the service of 
 process anew, except as to new parties made by the amendment, 
 or as to parties who have not appearedM 
 
 According to the usual practice, however, in Virginia, unless 
 waived by consent (express or implied) — or where the new 
 matter merely supplements or rounds out an allegation, or 
 allegations, already understood by the defendant and already 
 traversed or admitted in the answer, or otherwise req'uires no 
 further answer — process on the amended bill is issued thereon 
 against all the defendants named therein whose interests are in 
 
 ' Va. Code 1919, § 6095; Holland i'. Trotter, 22 Gratt. 139. See 
 Equity Rule 28. ; 
 
 " Martin >v. South Salem Land Co., 94 Va. 526, 553; Gills v. Gills, 
 136 Va. 526 (master's report). 
 
 " See Lawrence v. Bolton, 3 Pai. 294; Beekman v. Waters, 3 
 Johns. Ch. 410; Equitable Life Association v. Laird, 24 IN. J. Eq. 319. 
 Compare the case of the cross-bill: Perrow v. Webster, 124 Va. 321; 
 infra, § 169. 
 
Amended Bills 83 
 
 anywise sought to be affected by the amendment; and the cause 
 on the amended bill is matured, by plea or answer and general 
 replication, much in the same manner as on the original bill. 
 This practice seems recognized (if not required) by that pro- 
 vision of the Virginia Code quoted in the preceding section, 
 namely, that "the court, on motion of a defendant, made at the 
 term to which process to answer the same is returned executed 
 on him, or, if it be returnable to rules, at the first term after it 
 is so returned, may dismiss such amended . . bill.", ^^ 
 
 § 165. Error in naming a pleading. — In connection with 
 the close distinction between the amended and the supplemental 
 bill, it may be well to point out that in equity pleading, the name 
 or designation of a particular pleading plays a much less impor- 
 tant part than at law. In equity, substance is regarded rather 
 than form. Hence, though a pleader may mistake the name of 
 his pleading, yet, if it be proper in substance, the court will dis- 
 regard the error and treat the pleading as if it were rightly 
 named. For example : If a supplemental bill be proper, but 
 the plaintiff files what he terms an "amended" bill, or a "bill of 
 revivor," or a "cross-bill ;" or if he term his pleading a "peti- 
 tion" when it should be an "answer,'' or vice versa — and the 
 pleading be sufficient in .substance, — the court will treat it as if 
 it had been properly designated. ^^ 
 
 2. The Cross-Bill. 
 
 § 166. The cross-bill. — The cross-bill, as its name indi- 
 cates, is a bill filed by one or more defendants against one or 
 more of the plaintiffs in the original bill, or against one or more 
 co-defendants, or against some or all of both plaintiffs and co- 
 defendants. 
 
 The purpose of such a bill is not, in general, to repel the 
 
 " As to new parties by amendment, see Coffman v. Sangston, 21 
 Gratt. 363. As to answer to amended bill, see Equity Rule, 32. 
 
 " Sec Kendrick v. Whitney, 28 Gratt. 646, '654-655; Simmons v. 
 Simmons, 33 Gratt. 45], 458; Wliitten v. Saunders, 75 Va. 563, 572; 
 Glenn iv. Brown, '99 Va. 322; Matney v. Yates, 121 Va. 506; Sayre 
 V. Elyton Land Co., 73 Ala. 85. 
 
 The new Federal Equity Rule in Iterms declares that "unless 'other- 
 wise prescribed by statute or these rules, the technical forms of 
 pleading in equity are abolished." Rule 18. 
 
84 Equity Pleading and Practice 
 
 plaintiff's claim, but is rather to obtain affirmative relief on be- 
 half of the defendant filing the cross-bill. In short, it is rather 
 a sword than a shield — and is the method by which the defend- 
 ant asserts all available counterclaims. 
 
 A simple illustration of the function of such a bill may be 
 taken from a divorce suit, where the defendant consort, not 
 content with a mere defense of the charges made in the bill — a 
 defense which, if established, would call for a dismissal of the 
 bill — files a cross-bill setting up matrimonial delinquencies on 
 the part of the plaintiff consort, and asking a divorce to the 
 defendant on the grounds so set up. 
 
 So, where one co-tenant files a bill for partition against his 
 co-tenants, any of the latter may file a cross-bill against him, 
 or any co-defendant, or against both, asking for an account of 
 rents and profits received by the latter. 
 
 Again, in a suit for specific performance, if defendant de- 
 sired to have the contract rescinded, (as for fraud, or mistake, 
 or defect of title) he would file a cross-bill, setting up the 
 grounds relied on for rescission. 
 
 So, when discovery was an important branch of the equity 
 jurisdiction, a defendant might (as he still may) obtain discov- 
 ery from the plaintiff or a co-defendant by means of a cross- 
 bill.14 
 
 § 167. The same — new matter — new parties. — As the 
 
 cross-bill is auxiliary to the proceeding in the original suit, and 
 to a large extent a branch or dependency of that suit, so that 
 the two constitute practically a single suit, it is not permissible, 
 as a general rule, to introduce new parties, or new and distinct 
 matter not germane to the matter embraced in the original suit 
 — unless the new matter has arisen since the filing of the orig- 
 inal bill. 
 
 If new parties are essential to doing complete justice in the 
 case they should be introduced rather by objection to the orig- 
 
 " See generally on the subject of the cross-bill: Hudson v. Hud- 
 son, 3 Rand. 117; Moorman v. Smoot. 28 Gratt. 80; Derbyshire v. 
 Jones, 94 Va. 140. The filing of the cross-bill does not in anywise 
 relieve the defendant (olaintifif in the cross-bill) from filing an 
 answer to the original bill — the functions of the two pleadings being 
 wholly distinct. 
 
Cross-] Sills 85 
 
 inal bill for defect of parties, thus compelling the plaintiff to 
 amend his bill and bring in the new parties. If, however, the 
 pleadings and proofs indicate the necessity of a new party, and 
 the introduction of such party by amendment of the original 
 bill be impracticable, such new party may be introduced by mak- 
 ing him a. party to the cross-bill ;i5 though the better practice 
 would be for the defendant, in such case, to file a new and inde- 
 pendent original bill, and ask that it be heard along with the 
 pending cause. 
 
 § 168. The same — effect of dismissal of original bill. 
 
 — Whether the dismissal of the original bill will carry with it 
 the dismissal of the cross-bill depends on the particular circum- 
 stances of the case. 
 
 Thus, where the original bill is dismissed as to a particular 
 defendant on the ground that he is not a proper party, the dis- 
 missal of the cross-bill as to him necessarily follows, since the 
 latter bill can be maintained only against a proper party to the 
 original bill.^* 
 
 But where the cross-bill asserts an afKrmative right in op- 
 position to the plaintiff in the original bill, and not merely by 
 way of defense — a right not adjudicated in the dismissal of the 
 original bill, — the court may retain the cross-bill and proceed to 
 a final decree thereon, regardless of the dismissal of the orig- 
 inal bill." 
 
 § 168j^. The same— leave to file.— By the better practice, 
 leave of court to file the cross-bill should first be obtained,!^ 
 though in many jurisdictions previous leave is not considered 
 necessary, and an objecting party may assert his objection to 
 
 " Derbyshire z\ Jones,, 94 Va. 140; Crockett f. \\'oods, 97 Va. 
 391; Shields z>. Barrow, 17 How. (U. S.). 145; McMullen v. Eagan, 
 21 W. Va. 250. 
 
 " Derbyshire v. Jones, 94 Va. 140; Sulphur Mines Co. v. Bos- 
 well, 94 Va. 480. 
 
 " Ragland v. iBrodnax, 29 Gratt. 401; '.Equitable Life Soc. v. Wil- 
 son, 110 Va. 571; Abels v. Planters, etc., Inc. Co., 92 Ala. 382 9 So. 
 423; Pethtel v. McCullough, 49 W. Va. 520, 39 S. E. 199; Sigman v 
 Lundy, 66 Miss. 522, 6 So. 245; Fletcher, Eq. PI. Pr. 918. 
 
 ^ Bronson v. La (Crosse R. Co., 3 Wall. 283; Finlayson v Lips- 
 combe, 16 Fla. 751; Baker v. Oil Trust Co., 7 W. Va. 454. 
 
86 Equity Pleading and Practice; 
 
 the case made in the cross-bill by demurrer. ^^ 
 
 § 169. The same — process and procedure. — On the fil- 
 ing of a cross-bill, process is usually issued against the defend- 
 ants named therein, and the suit is matured as if it were an orig- 
 inal proceeding. Defense may be made by demurrer, plea or 
 answer. It is not clear, however, that process is essential as to 
 those parties to the original bill who have appeared in the cause 
 — and who, therefore are held to take notice of the various steps 
 taken in the course of the proceedings. ^'^ Service of process is 
 necessary, however, on defendants as to whom the original bill 
 has been taken for confessed and who have not entered appear- 
 ance, ^^ and of course as to new parties. 
 
 As a rule, defendants in the original bill are required to an- 
 swer the original bill before the defendants in the cross-bill can 
 be required to answer the latter — a practice sanctioned by stat- 
 ute in Virginia. 22 > 
 
 § 170. Answer treated as a cross -bill. — It not infre- 
 cjuently happens that a defendant has in his answer set up a 
 claim which regularly should have been asserted by cross-bill. 
 In such case the court may in its discretion treat the answer as 
 a cross-bill, in order to do complete justice between the parties.-^ 
 Of course in such case the adverse parties to the cross-claim 
 would have the same right to answer the new matter set up in 
 defendant's answer, as if the latter were in fact a technical 
 cross-bill. 
 
 So where process would be required on a technical cross- 
 bill, ^^ it is equally necessary in the case of the answer treated as 
 a cross-bill. 25 
 
 § 171. The cross-bill^-abolished in the Federal courts. 
 
 "■ Neal V. Foster, |34 Fed. 496; Davis v. American, etc., Union, 
 100 111. 313; Story, Eq. PI. 632; Fletcher, Eq. PI. & Pr. 899. 
 
 '" See Gills z'. Gills, 126 Va. 526. 
 
 " Perrow v. Webster, 124 Va. 321; supra, n. 17a. 
 
 " Va. Code 1919, § 6097. 
 
 " Mettert v. Hagan, 18 Gratt. 231; Tate v. Vance, 27 Gratt. 571; 
 Martin v. Kester, 46 W. Va. 438, 33 S. E. 238. 
 
 " See § 169, supra. 
 
 " Perrow ?'. Webster, supra. 
 
Petitions — Intervention 87 
 
 — The new Equity Rules seem to have abolished oossbills. 
 Rule 30 declares that the answer "must state in short and sim- 
 ple form any counter-claim arising out of the transaction which 
 is the subject-matter of the suit, and may zmthout cross-bill set 
 out any set-off or counter-claim against the plaintiff which might 
 be the subject of an independent suit in equity against him, and 
 such set-off or counter-claim so set up shall have the same effect 
 as a cross-suit, so as to enalle the court to pronounce a final 
 judgment in the same suit both on the original and the cross- 
 claims.'' ^^ 
 
 3. The Petition — Intervention. 
 
 § 172. The petition. — While strictly speaking a petition is 
 not a bill, the two pleadings are of a sufficiently kindred nature 
 to justify the classification of the petition with Bills Not Orig- 
 inal. 
 
 § 173. The same — by whom filed. — While the books on 
 equity pleading usually assert that a petition may be filed either 
 by one who is a party to the cause,^'' or by a stranger who de- 
 sires to become a party by intervention, the cases in which pe- 
 titions are filed by a party to the suit are so rare as not to need 
 our special attention here. 
 
 The petition, as the term is used in ordinary practice, is a 
 plleading, .framed much_like an original bill, filed in a pending 
 suit by one not a party to the proceeding, but who desires to be- 
 come a party, in order to assert some right involved in the suit. 
 
 Thus, where the estate of a decedent is being wound up in a 
 chancery suit, the creditors of the estate who are not otherwise 
 parties to the suit, may come in by petition, setting up their re- 
 spective claims and asking that their claims be allowed and paid. 
 So, if one of the legatees or distributees of the decedent should 
 have assigned his interest, in whole or part, to a stranger, such 
 stranger would come into the suit by petition, with the prayer 
 that the assignment be recognized, and. the claim paid to him.^'^'' 
 
 "" Rule 31 provides for an answer by the adverse parties to the 
 cross-claim asserted in the defendant's answer. 
 
 ^ Fletcher, Eq. PI. & Pr. 433. Petitions to rehear a cause are sui 
 generis, and will be tonsidered hereafter. 
 
 "'" Equity Rule 37 provides for petition by interveners. 
 
. 88 Equity Pi^eading and Practice 
 
 § 174. The same— leave to file — Virginia statute. — A 
 
 petition in a pending suit may be filed only by leave of court. 
 By statute ^^ in Virginia, however, such leave may be granted 
 by the judge in vacation, and the petition may then be filed and 
 matured in the clerk's office, as if it were an original bill. The 
 process may be made returnable either to rules in the clerk's 
 office or to a term of court; and new parties defendant may be 
 named in the petition. After maturity of the proceedings dep- 
 ositions may be taken. But -at the next term after maturity, de- 
 fendant parties may make any objection or defense that they 
 might have made had the petition been filed in court and process 
 awarded by the court thereon. 
 
 § 175, Process on filing the petition. — Aside from the 
 statute just mentioned, regularly the petition is filed in court, on 
 motion for leave to file ; such leave being given, an order or rule 
 is entered requiring the defendant or defendants therein named 
 to appear on a day named, or within a designated time, "to 
 show cause, if any they have or can shovu, why the prayer of the 
 said petition shall not be granted." 
 
 A copy of this order is officially served on the defendants, 
 and thereupon the case made by the petition is matured in court, 
 by plea, answer, or demurrer of the defendant, and general rep- 
 lication by the plaintiff, as in the case of an original bill.^^ 
 
 Where, as is sometimes the case, the petition is of such a 
 nature that it may be granted as of course, — where, for exam- 
 ple, its purpose is not hostile to the rights of any party to the 
 suit — or where, in a creditors' bill, the petition sets up a debt 
 which must later be proved before the master — process thereon 
 may be dispensed with.*** 
 
 § 176. The petition to rehear. — The petition by an inter- 
 venor, juct discussed, is not to be confused with the petition to 
 
 ^ Va. ICode 1919, § 6096. An attachment may be had in a pending 
 suit on petition therein. Id § 6410. 
 
 '^ Keys Planing Mill Co. v. Kirkbridge, 114 Va. 58. 
 _"° See generally on the isubject of process on petitions, 8 Va. Law 
 Reg. 96; Fletcher, 'Eq. PI. & Pr. 425. See form of rule, in Appendix, 
 post. I 
 
Bills op Revivor 89 
 
 rehear. As its name indicated, the purpose of a petition to re- 
 hear is to seek the rehearing of some decree previously entered 
 in the cause, and the correction of supposed errors therein. It 
 is filed by some party to the suit, and is addressed, not to a 
 higher court, but to the court in which the suit is pending. This 
 proceeding will be noticed more at length hereafter. 
 
 4. Bills of Revivor. 
 
 § 177. Bills of revivor. — The purpose of such bills is, as 
 indicated by their title, to revive suits which by reason of death 
 or other disability of a party have abated — and the purpose of 
 the bill of revivor is to bring the legal representatives of the 
 deceased or disabled party before the court. By the original 
 equity practice, the circumstances essential to its maintenance 
 were prescribed with some strictness, and the proceeding was 
 somewhat technical. ^'^ However, under modern statutes, or rules 
 of court, the bill of^ revivor has to a large extent been rendered 
 obsolete by the substitution of simpler methods. ^^ 
 
 " See these bills elaborately treated in Story, Eq. PI. (lOth ed.) 
 354-387. 
 
 " Va. Code 1919, § 16168; Wilson v. Smith, Z% Gratt. 493; Equity 
 Rules 35, 45. 
 
90 hQUITY Pl,EADING AND PRACTICE 
 
 CHAPTER XIII. 
 
 Bills Not Original. — Continued. 
 
 5. Bill of Review. i 
 
 § 178. The bill of review.— The bill of review -is a bill 
 filed by some party to an ended chancery suit, for the purpose 
 of having the trial court reinstate the cause on the docket, with 
 the object of re-examining and correcting or annulling some 
 previous decree in the cause, prejudicial to the rights of the 
 plaintiff in the bill of review. Its purpose is somewhat similar 
 to the writ of error coram nobis in the common law court. 
 
 § 179. The same — grounds on whicn filed. — A bill of 
 review may be filed on two grounds only, viz : 1. Error of law 
 on face of the record; or 2. Newly discovered evidence — and, in 
 either case, only after a final decree in the cause.^ 
 
 § 180. The same — (1) error of law on face of the rec- 
 ord. — A bill of review does not He to review or correct errors 
 of judgment in the determination of facts. If there be error in 
 this particular, it may be corrected, after a final decree, only by 
 
 ' Discussed at large, Story, Eq. PI. (10th ed.) 403-425. 
 
 ' The books on equity pleading add the further essential that be- 
 fore a defendant is entitled to file a bill of review he must have per- 
 formed the decree, or must allege his inability to do so. Story, Eq. PL 
 406; Fletcher, Eq. PL & Pr. 930. It is confidently believed that such 
 practice does not t)revail in Virginia, nor in America generally. It 
 seems never to have been suggested in any of the numerous Virginia 
 cases in which the bill of review has been under judicial investiga- 
 tion. On the contrary, it is common practice in this state to enjoin 
 the enforcement of the decree sought to be reviewed until a hearing 
 can be had on the bill of review — a practice expressly sanctioned by 
 statute: Va. Code 1919, § 6316. The practice in the Federal courts 
 seems, however, to be to the contrary, unless the plaintiff alleges in- 
 ability to perform the decree: Davis v. Speiden, 104 lU. S. 83; iRicker 
 V. Powell, 100 U. S. 104. As satisfaction of the decree is not re- 
 quired ias a condition of a review by the appellate court, no reason is 
 perceived why a diflferent 'rule should apply where the appeal for 
 a review is made to the trial court. 
 
BiLi, OF Review 91 
 
 an appellate court. But if error of law be apparent from an 
 inspection of the record in the cause, and a final decree has been 
 entered, a proper case for a bill of review is prima facie pre- 
 sented. 
 
 Thus, on a bill to have an absolute conveyance declared a 
 mortgage, or to establish a trust in real property, and the court 
 erroneously refuses to permit the introduction of parol testi- 
 mony to establish the fact of the mortgage or the trust ; in a suit 
 by the surety for subrogation to securities held by the creditor 
 whom the surety has satisfied, and the proof establishes a proper 
 case for subrogation, but the relief is denied by the court; or, 
 in any case, where, the facts proved entitle the plaintifif, as a 
 matter of law, to the particular relief sought by the bill — or, per 
 contra, entitle the defendant to a dismissal of the bill — but the 
 court mistakes the rule of law applicable to the facts proved and 
 denies the relief in the one case or grants it in the other, the 
 plaintifif, or the defendant, as the case may be, (assuming the 
 decree final) would be entitled to a bill of review based on er- 
 ror of law apparent on the face of the record. 
 
 § 181. The same — in findings of fact. — As already stated, 
 on a bill of review brought under this head, the sufficiency or 
 insufficiency of the proofs cannot be considered. The finding of 
 the court upon the factSj howsoever erroneous, is conclusive on 
 bill of review, and cannot be questioned on the testimony be- 
 fore the court. 
 
 As was said by Christian, J., in Thompson v. Brooks,^ quoted 
 with approval in Valz v. Coiner,* ,"It is well settled that a 
 bill of review can only be brought upon two grounds — first 
 upon newly discovered evidence, and second upon errors of law 
 apparent upon the face of the record.^ * * * As to errors 
 of law, they must be such as appear on the face of the decrees, 
 orders and proceedings in the cause, arising on facts either ad- 
 mitted in the pleadings or stated as facts in the decrees. Such 
 
 ' 76 Va. 160, 163. 
 
 ' 110 Va. 467, 469. 
 
 ° As to what is meant by errors of law "on the iface of the rec- 
 ord," see Whiting v. Bank of U. S., 13 Pet. 6, 13-14; Story, Eq. PI. 
 407. 
 
92 Equity Plkauing and Practice 
 
 errors of law, and such only, may be corrected by a bill of re- 
 view. But if the errors complained of be errors oi Judgment in 
 the determination of the facts, these can only be corrected by 
 appeal." 
 
 § 182. The same — negligence of party or counsel. — 
 
 Negligence, or mistake, or forgetfulness, or unskillfulness, of 
 counsel in failing to introduce proper testimony, or properly to 
 except to the master's report, are not sufficient grounds for fil- 
 ing a bill of review. In the footnote^ will be found cases il- 
 lustrating various grounds on which bills of review have been 
 rejected. 
 
 § 183. Bill of Review continued — (2) newly discov- 
 ered evidence. — The second ground on which a bill of review 
 may be filed, is the discovery of new evidence since the decree 
 complained of was entered, — evidence which could not with 
 reasonable diligence have been discovered before, and of so ma- 
 terial a nature that if previously brought to the attention of the 
 court its introduction would probably have altered the result. 
 Evidence which is merely cumulative is not sufficient.'^ 
 
 § 184. The same — after-discovered evidence contin- 
 ued—practice. — A bill of review on the ground of the discov- 
 ery of new evidence must distinctly and specifically state the 
 character of the new evidence, and be accompanied by some 
 prima facie proof that such evidence exists — either in the form 
 of evidentiary documents or of affidavits of witnesses. 
 
 The rule here, based on the elementary principle that plead- 
 ings must not state legal conclusions merely, is well stated in 
 Whitten v. Saunders : ^ "The rule," says Judge Staples, "is that 
 the court must, upon a mere inspection of the bill [of review]. 
 
 " Ellzey V. Lane, 2 H. & M. 593; Jones v. Pilcher, 6 Munf. 425; 
 Rawlings v. Rawlings, 75 iVa. 76; Beatty v. Barley, 97 Va. 11; Sharp 
 V. Shenandoah Furnace Co., 100 Va. 27; Valz v. Coiner, 110 Va. 
 467; Phipps V. Wise Hotel Co., 116 Va. ;739. 
 
 ' Connolly v. Connolly, 32 Gratt. 657; Whitten v. Saunders, 75 Va. 
 563.; Durbin v. Roanoke Building Co., 108 Va. 468; Sutherland v. 
 Gent, ill Va. 1511; Goode v. Bryant, 118 Va. 314. 
 
 ' 75 Va. 563, 573. 
 
BiivL OP Review 93 
 
 be able to see that the new matter discovered is of such a char- 
 acter that if brought forward in the suit it would have probably 
 altered the decree; and it must be so stated that the defend- 
 ant can answer understandingly, and thus present a direct issue 
 to the court. It is not sufficient to allege that the party expects to 
 prove certain facts. He must state the evidence distinctly upon 
 which he ■^elies, and must file the affidavit of witnesses in sup- 
 port of his averments." ^ 
 
 % 185. Bill of review continued — leave to file. — No 
 
 leave of count is required where such a bill is filed to review a 
 decree for error of law — but such leave is necessary where re- 
 lief is sought on the ground of after-discovered evidence.^^ 
 
 § 186. The same — why only after final decree? — Un- 
 til a final decree and adjournment of the court for the term at 
 which such decree was entered, ^^ all the proceedings had in an 
 equity suit are, in a measure, inchoate and interlocutory — or, 
 in professional phrase, "in the breast of the court.'' By this 
 statement is meant, not only that the proceedings in the suit 
 at that term are thus interlocutory, but that all the proceedings, 
 from the first decree onward, though had or entered at former 
 terms of the court, are likewise interlocutory and in the breast 
 of the court. It is only after a final decree and adjournment 
 that the proceedings in the cause crystallize, as it were, and 
 
 " See also Becker v. Johnson, 111 Va. 245. The bill should also 
 be accompanied by an affidavit of the plaintiff that the newly dis- 
 covered evidence could not have been discovered earlier by the ex- 
 ercise of due diligence. Story, Eq. PI. 412-413. 
 
 Where a bill seeks on this ground to review a decree entered by the 
 lower court by the direction of the appellate court, see U. S. v. Moor- 
 head, 1 Black 488; National Brake, etc., Co. v. Christensen, 254 U. S. 
 425; Re Gamewell Fire Alarm, etc., Co., f73 Fed. 908. 
 
 '° This is the unwritten rule (2 Daniell, Ch. Pr. 1577), and is af- 
 firmed by the Virginia (statute. Va. Code 1919, § 6316. 
 
 " It is common to find the statement in the books that the "en- 
 rollment" of the decree is the test of its finality. The term enroll- 
 ment is derived from the ancient English practice which is explained 
 in Story, Eq. PI. (10th ed.) ;403n (a), 421n (a). In the American 
 practice decrees are never enrolled in the English sense. But for the 
 purpose of determining the finality of decrees they are treated as en- 
 rolled (in the English sense) only after Ifinal decree and adjournment of 
 the term. See Enrollment of Decrees, post, §§ 1241-253. 
 
94 Lquity Pleading and Practice 
 
 present the elements of finality and rigidity characteristic of a 
 judgment at law. 
 
 Where, therefore, before final decree and adjournment, a ma- 
 terial error is discovered in any decree in the cause — whether 
 of law or of fact — or where, in like case, new evidence is dis- 
 covered — the court, on having its attention properly directed to 
 the error or to the newly-discovered evidence, is free to hear the 
 parties and to make such correction as justice demands. This 
 is done by means of a petition to rehear, of which we shall see 
 something hereafter. ^^ But where the proceedings have ceased 
 to be interlocutory, by the entry of a final decree and adjourn- 
 ment of the court, then under the influence of the maxim inter- 
 est reipublicae ut sit finis litium, the court feels less disposed to 
 open up the litigation for the purpose of re-trial of the whole 
 or any part thereof. Hence the establishment of the somewhat 
 narrow and technical rules applicable to the bill of review al- 
 ready noticed. 
 
 § 187. The same — effect of final decree in a chancery 
 cause. — The entry of a final decree in a chancery cause and ad- 
 journment of the court, put an end to any further proceedings ^ 
 in the cause — save proceedings to compel the performance of the 
 court's mandate, or an appeal to a higher court. The court can- 
 not on motion reinstate the cause for further proceedings ; and, 
 on the other hand, all decrees and orders therein, howsoever 
 erroneous must stand, until altered or reversed by proper pro- 
 ceedings, either by hill of revieiv in the same court, or by appeal 
 to a higher court. 
 
 As said by Burks, J., in Battaille v. Maryland Hospital, i^' 
 "there are but two ways known to the law by which such a 
 decree" [i. e. a final decree] "could be set aside — by bill of re- 
 view in the court which rendered it, or appeal to this' [the 
 appellate] "court." ^^ 
 
 '" Richardson i'. Gardner, 128 Va. 676, 685 — quoting the text (in- 
 accurately). 
 
 "a 76 Va. 63, 67. 
 
 '" In this connection see Va. Code 1919, § 6333, authorizing the 
 correction of decrees pro confesso, and of certain clerical errors, by 
 motion. See also id. § 6297, permitting reinstatement on the docket 
 
BiLi, OF Ri^iEW 95 
 
 § 188. The same — what is a final decree.— It is not al- 
 ways an easy matter to determine whether a particular decree is 
 final or not — nor are the courts fully in accord as to the true 
 characteristics of such a decree. 
 
 The following criterion, laid down by Baldwin, J., in Cocke 
 V. Gilpin,!* has been approved in many cases : 
 
 "Where the further action of the court in the cause is neces- 
 sary to give completely the relief contemplated by the court, 
 there the decree upon which the question arises is to be re- 
 garded not as final but interlocutory. I say further action in 
 the cause, to distinguish it from that action of the court which 
 is common to both final and interlocutory decrees, to wit, those 
 measures which are necessary for the execution of a decree 
 that has been pronounced, and which are properly to be re- 
 garded as adopted not in but beyond the cause, and as founded 
 on the decree or mandate of the court, without respect to the 
 relief to which the party was previously entitled upon the mer- 
 its of his case." 
 
 "A decree is not less final in its nature," says Burks, J., in 
 Rawlings v. Rawlings,'^^ "because measures may be necessary to 
 compel parties to obey it." 
 
 § 189. The same — final decrees continued. — Prof. Mi- 
 nor 1^ describes a final decree as one "which disposes of the 
 whole subject, gives all the relief that was contemplated, pro- 
 vides with reasonable completeness for giving effect to the sen- 
 
 for appointment of a commissioner to execute a deed under certain 
 circumstances. The latter provision should be extended so as to cover 
 all proceedings necessary to the complete execution of the decree. 
 
 " 1 Rob. (Va.) 20, 28, quoted with approval by Burks, J., in 
 Rawlings v. Rawlings, 75 Va. 76, 84. See elaborate discussion by 
 Staples, J., in iRyan v. McLeod, 32 Gratt. 367, 376-381 ; Johnson v. 
 Merritt, 125 Va. 162; Richardson v. Gardner, J 28 Va. 676— decree 
 adjudicating principles of the cause, ascertaining debts, and ordering 
 a sale of defendant's property, is not a final decree. A decree of 
 the court of appeals is always final (after lapse of the time per- 
 mitted by its rules for i^ rehearing), whether the original decree ap- 
 pealed from were in itself interlocutory or final. Mathews Co. v. 
 Progress Co., 108 Va. 777. 
 
 '° Supra. 
 
 '" 4 Minor's Inst. 1066, -1506. 
 
96 Equity Pleading and Practice 
 
 tence, and leaves nothing to be done in the cause save to su- 
 perintend ministerially the execution of the decree." ^'^ 
 
 § 190. The same — decrees final as to one party and 
 interlocutory as to another. — A decree may be final as to 
 one of the parties to the suit and yet interlocutory as to an- 
 other — since, so far as the one party is concerned, his interest 
 may be completely ascertained and the case disposed of as to 
 him, and the cause be retained for further action as to the 
 other. 18 
 
 § 191. Bill of review continued — time limitation. — In 
 
 keeping with the sound policy of putting an end to litigation, 
 as exemplified in the strict rules governing the filing of bills of 
 review, already noticed, the Virginia statute ^^ declares that "no 
 bill of review shall be allowed to a final decree, unless it be ex- 
 hibited within one year next after such decree," with a saving 
 clause in favor of infants and lunatics. 
 
 The bill should show on its face that it is brought within the 
 tih.e prescribed by law, and it is not necessary that the defend- 
 ants shall set up a plea of the statute of limitations thereto. ^o 
 
 § 192. Process and procedure on bill of review. — The 
 
 practice as to process and subsequent proceedings on a bill of 
 review are substantially the same as in the case of the amended 
 bill and the cross-bill heretofore considered. 
 
 " See also Repass v. Moore, 96 Va. 147; Gills f. Gills, 12'6 Va. 5a6. 
 The Federal courts, as well as (many state .courts, are somewhat more 
 liberal in construing decrees as final. See McGourkey v. Toledo, 
 etc., R. Co., 146 'U. S. 536; Fletcher, lEq. PI. & IPr. 700. A (final) 
 vacation decree under Va. Code 1919, § 6308, is not within the pro- 
 visions of § 6140 giving the court control of proceedings in the 
 clerk's office during the previous vacation. Matney v. Yates, 131 Va. 
 506, 513. 
 
 " Royall V. Johnson, 1 Rand. 421; Ryan v. McLeod, 32 Gratt. 367, 
 377; IBradley v. Bradley, 83 Va. 75; Battaille v. Maryland |Hospital, 
 76 Va. 63, 71; Jones v. Buckingham Slate Co., 116 Va. 120; Gills 
 V. (Gills, 126 Va. 526; Johnson v. Merritt, 125 Va. (162. 
 
 " Va. Code 1919, § 6316; Johnson v. Merritt, 125 Va. 162. 
 
 ^ Shepperd fo. Larue, ,6 Munf. 529. The considerations which 
 should induce khe court to grant or deny a rehearing or review, are 
 stated at large by Story, J. in Jenkins z'. Eldredge, 3 Story 299, quoted 
 in Story, Eq. Fl. (10th ed.) 421n (a). 
 
Petition to Rehear 97 
 
 § 193. Bills of review in the Federal courts. — The Eq- 
 uity Rules do not in terms mention bills of review, but the lan- 
 guage of Rule 69 ostensibly providing for petitions for rehear- 
 ing, clearly contemplates bills of review as well. Reference 
 must be made to the rule itself for particulars. ^^ 
 
 § 194. Injunction with bill of review. — Where the bill 
 of review is filed by a party whose rights may suffer detriment 
 unless the execution or enforcement of the decree be stayed or 
 suspended until a hearing can be had on the bill of review, an 
 injunction may be awarded suspending the decree accordingly. ^^ 
 
 6. Petition for Rehearing. 
 
 § 195. Petition to rehear. — The purpose of a petition to 
 rehear is much the same as that of the bill of review — namely, 
 to have the trial court rehear the cause in the particulars set 
 out by the party complaining of error, and ito correct the errors 
 alleged. 
 
 § 196. The same — contrasted with bill of review. — 
 
 While the purpose of these two pleadings is substantially sim- 
 ilar, there is wide variance in the scope of the two and in the 
 circumstances under which they may be filed, respectively. ' 
 
 We have just seen that the bill of review lies only after a 
 final decree, and only for the correction of errors of law ap- 
 parent on the face of the record, or to introduce newly discov- 
 ered and material evidence, and must be filed within one year 
 from the date of the final decree. 
 
 On the other hand, a petition to rehear is the appropriate 
 method of bringing errors to the attention of the trial court (1) 
 before final decree; (2) whether the errors be of law or of fact; 
 or (3) for the introduction of newly discovered evidence; nor, 
 in Virginia, (4) is there any statutory limitation applicable to 
 such petitions. 2^ 
 
 It thus appears that the courts are much more liberal in en- 
 tertaining complaints of error in previous proceedings before 
 
 See infra, § 195; Equity Rule 73. 
 
 By declaratory statute in Virginia. Virginia Code 1919, § 6316. 
 
 See infra, § 199. 
 
98 Equity Pleading and Practice 
 
 final decree, presented by petition to rehear, than after the final 
 decree, set up by bill of review.^* 
 
 § 197. The same — interlocutory decrees in the breast 
 of the court. — As already shown, so long as no final decree has 
 been entered, all the orders and decrees in a chancery suit are 
 interlocutory, and remain in the breast of the court, regardless 
 of any adjournment of the term — herein presenting a striking 
 contrast with the practice at law. 
 
 Being thus in the breast of the court, such decrees do not con- 
 stitute final records ; and hence they are subject to alteration and 
 amendment, in the sound discretion of the court, at any future 
 term and until adjournment after entry of the final decree. 
 Hence, where considerations of justice require it, there is not 
 the same reason for judicial reluctance to grant relief under a 
 petition to rehear as in the case of the bill of review. ^^ 
 
 § 198. Misnaming the petition to rehear as bill of re- 
 view — or vice versa. — As pointed out,^^ mere error in nam- 
 ing a pleading is immaterial in equity. Hence, where a pleading 
 termed a "bill of review" is filed before final decree, it may be 
 treated as a "petition to rehear," or vice versa.^"^ 
 
 §199. Petition to rehear continued — time limit. — In the 
 absence of a special statute, there is no prescribed limit of time 
 within which such petition must be filed,^* although, as in the 
 case of a bill of review, the complaining party may be denied 
 
 °' Where (the error complained of is merely one |of figures, or 
 merely clerical, or of form, or otherwise of a simple nature, it may 
 be corrected on mere motion. Banks v. Anderson, 2 Hen. i& Munf. 
 20; Kendrick v. Whitney, 28 Gratt. 646, 652; 2 Daniell, Ch. Pr. 244. 
 See Equity Rule 72. 
 
 ■^ Gardner v. Richardson, 128 Va. 676 — quoting the text. See 
 Decrees, post, Ch. xxi. 
 
 " Ante, § 165; ;Barger v. Auckland, 28 'Gratt. 851. 
 
 " Kendrick v. Whitney, 28 Gratt. 1646, 654; L,aidley v. Merrifield, 
 7 Leigh 346; Whitten v. Saunders, 75 Va. 563, 572; Matney m. Yates, 
 121 Va. 506. 
 
 '' Kendrick v. Whitney, 28 Gratt. 646, 651-654 — a case in which 
 it was held proper to entertain a petition .to rehear a decree entered 
 thirteen years before, and in which Judge Staples, who delivered the 
 opinion, mentions cases in which rehearings were granted to cor- 
 rect errors occurring twenty-five years before petition filed — ithe suits, 
 of course being still on the docket, and no final decree entered. 
 
Petition to Rehear 99 
 
 relief where he has been guilty of laches in not bringing the 
 error to the attention of the court at an earlier stage of the 
 proceeding, and particularly where, in the meantime, other per- 
 sons have changed their position in reliance on the correctness 
 of the proceedings, and the parties cannot be placed in statu 
 
 § 200. The same — frame of the petition. — The petition 
 should set forth specifically the errors complained of, and should 
 conform, in its general structure, to the bill of review.**' In- 
 deed the petition to rehear appears to be the modern substitute 
 for the practice of the English chancery of correcting errors 
 in interlocutory decrees by "bill in the nature of a bill of a re- 
 view" — though Judge Story suggests that the petition for re- 
 hearing cannot be resorted to where it is necessary to introduce 
 supplementary matter, in which case, the new matter should 
 be brought to the attention of the court by supplemental bill in 
 the nature of a bill of review, and not by petition. ^^ 
 
 § 201. The same — in the Federal courts. — Rehearing in 
 the Federal courts is provided for by Rules 67 and 72. Neither 
 of these rules refers in terms to bills of review, but only to peti- 
 tions to rehear. It is evident, however, from the language of 
 Rule 69 that the term "petition to rehear" is not used in its 
 technical sense, but is meant to include bills of review as well. 
 
 * See Phipps v. Wise, 116 Va. 739 — a case involving a bill of re- 
 view, but equally applicable to the petition to rehear. 
 ■" See also McLeod v. New Albany, 66 Fed. 378. 
 " Story, Eq. PI. 421, et seq. 
 
100 Equity Pleading and Practice 
 
 CHAPTER XIV. 
 Defensive Pleadings. 
 
 1. The Demurrer. 
 
 § 202. The function of a demurrer. — The function of 
 a demurrer in modern practice is to test the sufficiency in law 
 of the plaintiff's case as stated in, the hill, or other pleading de- 
 murred to. Its effect is much the same as at law, in that it 
 admits the truth of all the facts sufficiently pleaded in the plead- 
 ing demurred to, and submits to the court the decision of the 
 issue whether the pleading on its face, is legally sufficient, in 
 form and substance. ^ 
 
 § 203. Failing to demur to a defective bill — effect. — 
 
 In equity, the failure to demur is nothing like so serious as at 
 law, since, even though the defendant omits to demur, the 
 court will not grant relief upon the hearing unless there be a 
 proper case made by the bill and the proofs. ^ In short, where it 
 appears that the case is without equity on its merits, the defend- 
 ant may generally take advantage of the situation at the hearing, 
 orally, or the court will ex mero motu raise the objection.^ 
 
 § 204. The same — aided by proofs. — But if the defec- 
 tive case made by the bill be afterwards supplemented by the 
 proofs, so that at the hearing the record discloses a meritorious 
 case, consistent with that made in the bill, and one proper for 
 relief in equity, the court may administer proper relief, and 
 the defendant who has failed to demur to the bill cannot com- 
 plain of such action.* 
 lies. — Contrary to the rule at law, in the equity practice, a de- 
 
 ' Watson V. Brunner, 128 Va. 600. 
 ' Green v. Massie, 121 Gratt. 356. 
 
 °' Stuart V. Coalter, ,4 Rand. 74, 78; Salamone v. Keily, 80 Va. 86; 
 Poindexter v. Burwell, 82 Va. 507. I 
 
 ' Salamone v. Keily, \supra. 
 
The; Demurrer ^^^ 
 
 § 205, The demurrer continued — to what pleadffll: -i*- 
 
 murrer lies only to a bill, bill of review, cross-bill, or other ag- 
 gressive pleading, and not to an answer or plea.^ As we shall 
 see later, if the answer is insufficient in not responding fully, 
 the proper form of objection is to enter exceptions, or, if insuffi- 
 cient in substance as a defense to the bill, the cause is set down 
 for hearing on bill and answer; and if the plea be deemed insuf- 
 ficient it is set down for argument. 
 
 § 206. The same— effect if demurrer sustained. — Ordi- 
 narily, where a demurrer is sustained to the plaintiff's bill, he 
 obtains leave, as of course, to amend his bill, and does amend 
 accordingly, unless he has already put his best foot foremost 
 and stated the case as strongly as the proofs at his command 
 enable him to do; in which latter case, equally of course, an 
 amendment would not serve his purpose, and his bill must be 
 dismissed. 
 
 Formerly, if the plaintiff desired to test the validity of the 
 court's ruling by an appeal, he must have refused to amend, and 
 at once have taken an appeal, since, if even under protest he ac- 
 cepted the ruling as proper by amending his bill to conform 
 thereto, he was held to have waived his privilege, and could not 
 avail himself of it in the higher court.® But by recent statute 
 this rather harsh rule no longer exists, provided the demurree 
 gives notice that he does not accept the ruling as correct.''' 
 
 § 207. The same — objections that may be taken by de- 
 murrer. — As stated in a previous section, the purpose of a de- 
 murrer is to test the sufficiency in law of the adversary plead- 
 ing as it stands on the record. 
 
 It follows that any objection, of form or substance, apparent 
 on the face of the pleading (and no other) may be thus taken. 
 
 It is impossible to enumerate the manifold errors that an ig- 
 
 ° See Story, Eq. Pi. 456; Kelly v. Hamblen, 98 Va. 383, 6 Va. Law 
 Reg. 178, note; Langdell, Eq. PI. 83, i94; 3 Baiton, Ch. Pr. (2nd ed.) 
 370-371; Banks v. Manchester, 128 U. S. 244. 
 
 " See Fudge v. Payne, 8^ Va. 303; Birckhead v. )C. & O. Ry. Co., 
 95 Va. 648, 6 Va. Law Reg. 44; Tidewater Railway Co. v. Hurt, 109 
 Va. 204. Compare N. & W. iRy. Co. v. Old Dom. Bag. Co., 97 Va. 90 
 
 ' Va. Code 1919, § 6116. 
 
102 Equity Pleading and Practice 
 
 norant and muddle-headed draughtsman may inject into his 
 pleadings, hence a few practical illustrations of the more com- 
 mon grounds of demurrer must suffice. 
 
 § 208. The same — ^illustrations of the demurrer. — Thus 
 (hypothetically) if the plaintiff's bill for specific performance 
 of a contract for the sale of personal property should fail to 
 allege that the property is of a unique character, not readily 
 obtainable in the market, or such other circumstance as under 
 established rules should induce a court of equity to decree spe- 
 cific performance of a contract for the sale of personal property; 
 or where the bill sets up a trust for an illegal or unrecognized 
 purpose; or seeks an injunction on improper grounds; or in a 
 suit by creditors to set aside a fraudulent conveyance, made for 
 value, omits to allege notice of the fraud by the grantee — or to 
 allege that the plaintiffs have recovered judgments at law (the 
 rule is otherwise in Virginia) ;* or, in: a divorce suit, the bill 
 fails to allege a valid marriage between the parties, or proper 
 domicil within the state, or sufficient grounds for divorce; or in 
 any other case where, assuming all the facts stated in the bill to 
 be true, yet these facts do not constitute a case for the cogni- 
 zance of equity — in all of such cases the objection is properly 
 taken by demurrer. 
 
 § 209. Further illustrations of use of the demurrer. — 
 
 The illustrations given in the preceding section are rather ob- 
 jections of substance — where the bill failed in substance to 
 make out a case entitling the plaintiff to equitable relief. 
 
 But there are many other objections besides those going to the 
 substance of the case. Thus if the bill shows on its face that 
 necessary parties have been omitted — that the plaintiff has no 
 real interest in the matter he is attempting to litigate (as where 
 an administrator sues for partition of the real estate of his de- 
 cedent — ^or for a sale of such real estate for payment of debts) 
 — that the bill Improperly joins two independent causes of ac- 
 tion, resulting in multifariousness ^ — that though a good cause 
 of action is stated, it is not a case proper for equity cognizance 
 
 ' See Creditors' Bills, post, cli. 31. 
 ° Post, ch. xxiv. 
 
The; Demurrer 103 
 
 because of a plain, adequate and complete remedy at law— that 
 the plaintiff, though having an interest, is yet not entitled to sue 
 alone, by reason of some legal disability, as infancy or lunacy, 
 shown in the bill— in all of which cases, if the objection appear 
 on the face of the bill (but not otherwise), a demurrer is the 
 proper method of bringing the objection to the attention of the 
 court. 
 
 § 210. Questioning the jurisdiction by demurrer.- If it 
 
 appear on the face of the bill that the case is not a proper one 
 for equity jurisdiction — that is, that no court of equity would 
 have jurisdiction on the facts stated — or if the jurisdiction in- 
 voked by the bill be a special statutory one (as a suit for the 
 sale of infants' land) and the bill fails to show the proper juris- 
 diction — the question may be raised by demurrer; or, as we 
 have already seen,i* the demurrer may be omitted and the at- 
 tention of the court brought to the defect orally at the hearing, 
 since no court of equity will assume jurisdiction of a suit of 
 which it has not proper cognizance, even though no objection be 
 made by the defendant. Neither waiver nor consent can con- 
 fer jurisdiction. 
 
 § 211. Defense of statute of limitations by demurrer. — 
 (1) remedy only affected. — While in a few states the stat- 
 ute of limitations may be availed of by demurrer, (that is, 
 where the claim appears from the face of the bill to be time- 
 barred), it is settled in Virginia and in most of the states, that 
 even though the lapse of the prescribed period appear from 
 the face of the bill, the statute cannot be availed of by demurrer, 
 but must be set up by plea or answer — the reason being that the 
 plaintiff would not, on demurrer, have the opportunity of reply- 
 ing a new promise or other facts which repel the defense of limi- 
 tations—as well as for the further reason that even though 
 the claim be time-barred, and though this appear from the face 
 of the bill, the bill yet states a valid cause of action, to be de- 
 feated only by the defendant's asserting his personal privilege 
 of pleading the statute. 
 
 " Ante, §§ 112-15. 
 
 " Hubble V. Poflf, 98 Va. |646, 6 Va. taw Reg. 657, note. 
 
104 Equity Pleading and Practice 
 
 § 212. The same— (2) right affected.— The statute of 
 limitations, normally, does not bar the right but the remedy only 
 — and the defense of the statute is a personal privilege of the 
 defendant. The statute merely authorizes the defendant to shut 
 the doors of the court-house, as it were, upon the plaintiff when 
 he seeks to enforce the right. The cause of action itself still ex- 
 ists, and is a valuable consideration for a new promise. 
 
 The preceding section, in which is stated the rule that the 
 statute of limitations cannot be set up by demurrer, contem- 
 plates a statute thus operating on the remedy only. But now 
 and then is met with a statute which, in terms or by construction, 
 bars not the remedy only but the right as well — for example, 
 where the right sought to be enforced is not one of the common 
 law but is given by statute, and by the terms of the same statute 
 there is prescribed a limit of time within which the right must 
 be enforced. In such cases it is usually held that time is the es- 
 sence of the right, and that the right itself is barred after expi- 
 ration of the limit fixed. 
 
 The action for wrongful death under Lord Campbell's Act, 
 which the statute^^ requires to be asserted within one year — and 
 mechanics' liens on real property to secure payment for improve- 
 ments erected thereon, suits to enforce which are (in Virginia) 
 limited to twelve months^^ — are illustrations of statutory rights 
 to which a time limit is attached. In such cases, unless it affirma- 
 tively appear from the plaintiff's declaration or bill that the suit 
 was instituted within the prescribed time-limit, the defendant 
 may avail himself of the defense by demurreri'* — and a fortiori 
 where tRe reverse affirmatively appears. 
 
 § 213. Demurrer — defense of statute of parol agree- 
 ments — (1) where bill shows oral contract. — Where the 
 bill shows on its face that the contract sued on is not in writing, 
 with no allegations to take the case out of the statute, the de- 
 fendant may, according to the apparent weight of authority, avail 
 
 " Va. Code 1919, § 5787. 
 
 "" Id., § 6433. 
 
 " See The Harrisburg, 119 U. S. 199; Taylor v. Cranberry Iron 
 Co., 94 N. C. 525; Manuel v. N. & W. R. Co., 99 Va. 188, 6 Va.l Law 
 Reg. 776, note; Lambert v. Ensign M'f'g. Co. (W. Va.), 26 S. E. 451; 
 3 Va. Law Reg. 63; 6 id. 411, 558; 25 Cyc. 1398. 
 
The Demurrer 
 
 105 
 
 himself of the defense of the statute of frauds by deniurrer.i« 
 Here the plaintiff admits, in most solemn form, that he lacks the 
 statutory evidence, and that he is not entitled to enforce the con- 
 tract against the unwilling defendant.i^ 
 
 § 214. The same— (2) where the bill sets up the con- 
 tract in general terms. — Where, however, ihc bill sets out the 
 contract in general terms, without showing whether it is in writ- 
 ing or not, a demurrer will not lie. Inasmuch as the statute of 
 frauds does not render the parol contract void, but merely ex- 
 cludes the evidence of its existence, it is generally held that the 
 plaintiff reed not allege the writing in his bill or declaration. 
 Here the question is one rather of evidence than of pleading. 
 Hence it follows that the omission of such allegation does not 
 render the pleading insufficient on its face. 
 
 In such case, the defendant (by the weight of authority) must 
 deny the existence of the writing, in his plea or answer. In some 
 jurisdictions, however, including Virginia, it is held that the de- 
 fendant, instead of specifically pleading the statute, may avail 
 himself of it by objecting to the parol testimony when offered — 
 and in the absence of objection, either in his pleading or when the 
 evidence is offered, he is held to have waived the defense." 
 
 § 215. The demurrer in the Federal courts. — Along with 
 other technical forms of pleading, the new Equity Rules have 
 abolished the demurrer, in terms — and defenses formerly made 
 by ■ demurrer are required to be made by motion or in the 
 answer.^'''- 
 
 § 216. Demurring and answering simultaneously. — In 
 
 the ancient equity practice, as at law, it was not permissible to 
 answer and demur at the same time. By answering the bill on the 
 
 " 3 Cyc. 312. 
 
 " And yet where the plaintiff, in ^equally solemn form, on the 'face 
 of his bill, admits that the right he asserts is barred by Ithe statute 
 of limitations, the rule, |as has just been pointed out, is Ithe reverse. 
 The inconsistency here is obvious — since in neither case does the 
 statute affect the validity of the contract, until specially invoked by 
 the defendant. 
 
 " Eaves V. Vial, 98 Va. 104. The authorities are collected lin 20 
 Cyc. 308-311; 9 Enc. PI. & Pr. 705-709. See 5 Va. Eaw Reg. 794. 
 
 "^ Rule 29. 
 
106 Equity Pi,b;ading and Practice 
 
 merits the defendant was held to have waived any objection that 
 he might have raised by the demurrer. But, in Virginia, and in 
 the States generally, it is common practice,^* thus to demur and 
 
 " See Bassett v. Cunningham, 7 Leigh 403. 
 answer simultaneously. 
 
 CHAPTER XV. 
 
 Defensive Fljeadings — Continued. 
 
 2. The Plea. 
 
 § 217. The plea. — Defense by plea, in modern times at 
 least, is comparatively rare, although, where available, this ^orm 
 of defense has many advantages over that by way of answer — 
 especially since the answer, by the operation of modern statutes, 
 has been largely shorn of its old-time value as an instrument of 
 evidence. 
 
 The defense by plea is used where the defendant desires to 
 present a single state of facts (although possibly made up of 
 numerous circumstances), as a defense to the plaintiff's suit. The 
 advantage which the plea presents over the answer is that it 
 shortens the litigation — reducing the issue, as it does, to a single 
 point. It also saves the defendant from making discovery — the 
 rule being that 'one who answers at all must answer fully' — al- 
 though this immunity is now of little advantage. 
 
 Familiar illustrations of the use of the plea would be: The 
 statute of limitations; absence of proper parties (where this does 
 not appear from the bill itself) ; res judicata; usury; a release; 
 an award ; infancy ; bankruptcy ; denial of partnership ; bona fide 
 purchaser; denial of an essential jurisdictional fact alleged in the 
 bill, etc.i 
 
 § 218. Several pleas — duplicity. — Under the general equity 
 practice, the defendant is permitted, as a matter of course, to file 
 
 ' See form of Iplea, post, Appendix. 
 
The Plea 107 
 
 different pleas to separate parts of the same bill, but he will ordi- 
 narily not be permitted to file several pleas to the whole bill, or to 
 the same part thereof. This, however, the court may in its discre- 
 tion permit.^ 
 
 The Virginia courts are quite liberal in this connection, and are 
 disposed to extend the statutory relaxation of the rule against 
 duplicity in pleas at law, to proceedings in equity, by analogy.^ 
 Thus it is common practice in Virginia to demur and answer at 
 the same time.* Inasmuch, however, as the purpose of the plea 
 is to shorten the litigation by reducing the issue to a single point, 
 and since the defense by plea is not the only defense open to the 
 defendant, instances are rare in which occasion arises for the use 
 of more than a single plea to the whole bill or to the same part 
 thereof. ■* 
 
 1. Issue of Law on, the Plea. 
 
 § 219. Legal sufficiency of plea — how tested. — In a 
 
 court of law the proper method of testing the legal sufficiency of 
 any pleading is, of course, by demurrer, or by motion to exclude. 
 But, as already pointed out, in equity procedure the demurrer lies 
 only to an aggressive pleading. Hence objection to a plea can- 
 not be taken by demurrer — nor is the motion to exclude proper. 
 Practically the same result is gccomplished, however, by "set- 
 ing down, the plea for argument" — which means that before re- 
 plying thereto the plaintiff invokes the opinion of the court 
 whether the plea, assuming its allegations to be true, is sufficient 
 in form and substance as a defense to the bill, or to any specific 
 part thereof. Substantially, therefore, the only difference be- 
 tween a demurrer and a setting down for argument is one of 
 terms only.^ 
 
 § 220. The same — result of hearing of the argument. — 
 
 The result of this hearing will be, of course, a ruling either that 
 the plea is or is not legally sufficient as a defense to the bill, or to 
 
 ' See Fletcher's Eq. PI. & Pr. 344-5; Shipman's Eq. PI. 493; Bassett 
 V. Cunningham, 7 L,eigh 403. 
 
 ' Va. Code 1919, §§ 6107, 6373. 
 
 * Bassett v. Cunningham, 7 Leigh )402. 1 
 
 " See Va. Code 1919, § 6120, which seems declaratory of the un- 
 written rule. 
 
108 Equity Pleading and Practice 
 
 that portion of the bill to which it purports to be a defense — 
 with the results following: 
 
 § 221. The same — (a) plea held insufficient. — If the plea 
 (assuming it true in fact), is held to ofifer no valid defense, it will 
 be rejected by the court, or, in the language of the order, "dis- 
 allowed" — and the defendant, both by the unwritten rule and by 
 the statute, will be ordered to file an answer.^ 
 
 § 222. The same — (b) plea held legally sufficient. — If, 
 
 on the other hand, the defense set up by the plea is held to be 
 sufficient in law, then an order is entered "allowing the plea" — 
 that is, in substance, that the facts alleged in the plea constitute a 
 valid defense, provided they are capable of proof at the hearing. 
 The plaintiff must then decide whether he can afford to take is- 
 sue on it by filing a general replication, denying the truth of tl-t 
 allegations of the plea — as he must do i^ the plea merely denies 
 the allegations of the bill, and is not by way of confession and 
 avoidance — or whether he must not himself set up in reply new 
 matter by confession and avoidance. In the latter case, by the 
 ancient practice, the plaintiff filed a special replication. But, as 
 already shown, '^ special replications have long since become ob- 
 solete in the equity practice, and have been substituted by the 
 amended bill. 
 
 § 223. The same — illustrations. — Thus, in a suit for di- 
 vorce on the ground of the defendant's unjustifiable desertion 
 of the plaintiff, continued during the statutory period, if the de- 
 fendant by plea simply denies the desertion, the plaintiff has no 
 other course open than to file a general replication, and thus take 
 issue on the truth or falsity of the plea. 
 
 But if the defendant plead by way of confession and avoid- 
 ance, by admitting the desertion and justifying it on the ground 
 of the plaintiff's adultery, here the plaintiff must decide whether 
 he will deny the adultery (which he would naturally do if inno- 
 cent, and which he would do by a general replication), or 
 whether (if guilty) he must admit the adultery and avoid the 
 
 Ibid. 
 Infra, § 258. 
 
The Plea 109 
 
 effect of the admission by setting up condonation on the part of 
 the defendant. If the latter alternative be adopted, he must file 
 an amended bill, reiterating the charge of desertion, admitting 
 his own adultery, and setting up condonation by the defendant. 
 Whether he shall adopt the one or the other method of defense 
 will, of course, depend upon the proofs at his command, or the 
 lack of proof available to the defendant. 
 
 2. Issue of Fact on the Plea. 
 
 § 224. The same — issue of fact on plea. — Where the 
 plaintiff takes issue on the plea, by a general replication, either 
 party is entitled by the Virginia statute to have such issue tried 
 by a jury — this being one of the few examples of a jury trial in 
 a court of equity.* 
 
 § 225. The same — issue of fact — (a) for defendant. — 
 
 If such issue be found in favor of the defendant — ^that is, that 
 the plea is true — and the plea is to the whole bill, an order is 
 entered dismissing the bill, with the result, of course, that the 
 defendant wins the suit. If, however, the plea goes to a particu- 
 lar portion of the bill — as, for example, to only one of several 
 claims — then such claim is adjudged in defendant's favor, and 
 is eliminated from the controversy. 
 
 Thus, if the purpose of the bill be to enjoin defendant from 
 cutting timber from a particular tract, and defendant by plea 
 sets up a fee-simple title in himself, with general replication by 
 the plaintiff, issue found for the defendant would necessarily call 
 for ending the entire controversy by dismissal of the bill, since 
 the whole foundation of the plaintiff's suit has failed. 
 
 If, on the other hand, the bill had included two tracts, and de- 
 fendant had pleaded title in himself as to one of the tracts only, 
 issue found in defendant's favor would have eliminated that 
 tract from the controversy, without touching the question as to 
 the other. 
 
 § 226. The same— issue of fact— (b) foir plaintiff.— 
 
 The rule very generally prevailing in the original equity practice, 
 
 ' Va. Code 1919, § &121. Another instance occurs in an issue out of 
 chancery noticed hereafter. See Towson t/. Towson, 136 Va. 640. 
 
110 Equity Pi^eading and Practice 
 
 and in the Federal courts before the aboHtion of pleas by the 
 new Equity Rules, was that where the defendant filed a plea to 
 the merits, and the plea was found not true in fact, the plaintiff 
 was entitled to a decree pro confesso, and defendant had not the 
 privilege of making further defense (howsoever valid and avail- 
 able) by answer {respondens ouster) — though the plaintiff was 
 entitled to insist, if he desired, upon such discovery by answer 
 as his bill called for.^ 
 
 § 227. The same — in Virginia. — In conceding this to be the 
 prevailing practice elsewhere, and in the absence of any known 
 authority in Virginia, where the use of the plea is extremely 
 rare, it is yet questionable whether, under the very liberal equity 
 practice in this State, and under'the influence of statutes modi- 
 fying the stringent rules against duplicity in the common law 
 courts, an issue of fact found in the plaintiff's favor on a plea 
 in equity, (e. g. the statute of frauds or of limitations), would 
 debar the defendant from the right of filing an answer setting 
 up other available defenses. 
 
 Thus, in Virginia, even in the courts of law, the defendant 
 may plead in abatment and in bar at the same time — he may file 
 as many pleas in bar as he desires — he may demur and plead or 
 answer simultaneously — he may withdraw his motion to exclude 
 a replication after a ruling of sufficiency, and take issue in fact, 
 etc. — these relaxations of the ancient prejudice against du- 
 plicity in pleading, all indicative of a policy of permitting a de- 
 fendant to avail himself of every meritorious defense that he 
 may have, without regard to technical rules against duplicity. 
 
 For instance, where a defendant, impleaded as a constructive 
 trustee, believes that he is protected by the statute of limita- 
 tions, and accordingly so pleads, the circumstance that his plea 
 
 ° Story, Eq. PI. 98, 697; Langdell, Eq. PI. 98, 147; Fletcher, Eq. 
 PI. and Pr. 290; |Adriaans v. Lyon, 8 (App. (D. C.) 533; Dows v. Mc- 
 Michael, 2 Pai. Ch. 345 {per Walworth, Ch.); Kennedy v. Creswell, 
 101 U. S. 641; Farley w. Kittson, 120 U. S. 303. In the case last cited 
 it was held that the defendant might answer over, under authority 
 of (old) Equity Rule 34 — a view which is >rvigorously assailed in a 
 luminous paper, on this precise question, by Ro. S. Taylor, in 36 
 Am. Bar Association Reports 361. The rule in Alabama accords with 
 the original practice: Sims, Ch. Practice 452; and so in Tennessee: 
 See Gibson, Equity Practice. 
 
' The Plea HI 
 
 is not. sustained in fact, should not debar him Irom setting up by 
 answer the further defense that he has fully accounted for the 
 trust fund, or that he holds a release from the plaintifif, or that 
 the fund in controversy was originally his own, or has become 
 his own under a bona fide purchase thereof for value. True, all 
 of these defenses he might originally have set up by answer; 
 but the circumstance that, from motives of economy of time 
 and expense, (for which the plea was devised) he has asserted 
 one of his available defenses by "plea, should not operate to shut 
 out other honest defenses, of the existence of which he is full- 
 handed with proof. If the rule in question should debar these 
 other defenses in such case in this state, then we should have the 
 rare (if not unique) spectacle of a Virginia chancellor con- 
 sciously entering an unrighteous decree because of a highly 
 technical rule of equity procedure — a rule resting in no statute, 
 but originating in the unwritten practiice adopted by equity 
 courts in the interest of just judgments, unhampered by technical 
 considerations. 
 
 In such case, of course the finding that the plea is untrue be- 
 comes res judicata, and the same defense cannot again be as- 
 serted in the answer. 
 
 3. Defense by Plea Generally. 
 
 § 228. Plea supported by ansVer. — It is possible for the 
 plaintiff so to frame the allegations of his bill as to compel the 
 defendant to file an answer along with his plea — the result being, 
 in the language of the books, 'a plea supported by an answer.' 
 This somewhat rare specimen of pleading occurs where the plain- 
 tiff anticipates the defense to be set up by the defendant, and in 
 the bill alleges matter in avoidance of such defense — or alleges 
 special circumstances in corroboration of the allegations of the 
 bill — and prays discovery from the defendant as to the truth of 
 such allegations. 
 
 It will be noticed that the answer here is w,o part of the de- 
 fense. The real defense is set up in the plea. The answ>,r is in- 
 sisted upon merely to supply evidence upon which the plaintiff 
 relies to overcome the defensive allegations of the plea.^" 
 
 ^° Story, Eq. PI. 671. 
 
112 Equity Pleading and *Peactice 
 
 For instance, if the bill charges a partnership between the 
 plaintiff and defendant, evidence of which, in the form of writ- 
 ten articles and books of account, are alleged to be in the de- 
 fendant's possession, and discovery of the facts establishing the 
 partnership, with production of books and documents, is de- 
 manded, a plea of no partnership would obviously be insufH- 
 cient without an answer in support, making the required dis- 
 covery.ii 
 
 § 229. Defense by plea — optional not obligatory. — Be- 
 fore passing from the plea 't may be well to point out that, save 
 as to matters in abatement, defense by plea is a privilege to be 
 exercised by the defendant or not at his option. Any merito- 
 rious defense available by plea may be made by answer as well. 
 In other words, there is no rule of equity procedure that certain 
 ■defenses must be made by plea and certain others by answer. 
 Hence, if he choiose, the defendant may 'Utilize his answer 
 for every meritorious defense open to him.^^ 
 
 § 230. Pleas in the Federal courts — abolished. — By the 
 
 New Equity Rules, pleas, whether in bar or in abatement, are 
 abolished, and defenses formerly presentable by plea are re- 
 quired to be made by motion or answer.'^^ 
 
 § 231. Plea of another suit pending — (1) in the same 
 state — (a) in another court of equity. — The plaintiff is not 
 permitted to harass the defendant by two suits concerning the 
 same Subject-matter, whether both be in equity or both at law, or 
 one in each court, i* 
 
 " See numerous illustrations, (Story, Eq. PI. 671-679. \ 
 
 '^ A single (possible) exception to the rule thus broadly stated exists 
 in the case where defendant Idesires to set up a privilege in avoidance of 
 discovery sought in the bill. He cannot set up the privilege by an- 
 swer, because of the rule ithat a defendant who answers must answer 
 fully. Hence in such case he is driven to his plea. Thus, if discov- 
 ery is sought of privileged icommunications, or of matters .the dis- 
 covery of which would subject him to a penalty or forfeiture, the 
 defendant must set jup the privilege of Jnon-disclosure by his plea 
 (or demurrer if appearing on the face of the bill) — since if he an- 
 swers at all he |must answer fully. See Story, Eq. PI. 847. 
 
 " Rules 29, 45, 52. 
 
 " The case of a mortgagee proceeding at law for a personal judg- 
 ment for the debt, and in equity to foreclose the mortgage, is a strik- 
 ing exception. Jones v. Conde, |6 Johns. Ch. 77; Priddy v. Hart- 
 ■sook, 81 Va. 67. , 
 
The PI.EA 113 
 
 Hence where both suits are pending in equity, in the same 
 state, objection is properly made by filing, in the later case, a 
 plea of former suit pending. If the plea is sustained an order 
 follows, dismissing the later suit.^^ 
 
 § 232. The same— (b) another action pending in a court 
 of law. — It is clear that since a court of lav/ does not recognize 
 even the existence of a court of equity, no plea of a pending 
 equity suit could be set up in abatement of an action at law. So 
 that where there are two suits being prosecuted by the same 
 plaintiff, against the same defendant, involving the same sub- 
 ject-matter, one at law and the other in equity, the objection 
 must be made in the equity suit. This is done by motion for a 
 rule against the plaintiff to show cause why he should not be put 
 to an election between the two suits. If he fail to elect within 
 the time prescribed in the order requiring an election, the suit in 
 equity will be dismissed. i® 
 
 § 233. The same — (2) in a foreign state. — The general 
 rule is that the courts of one state will take no notice of suits 
 pending in another state. Hence a plea alleging the pendency of 
 such a suit in not a valid plea, and will be disallowed. ^'^ 
 
 " Fletcher, Eq. PL & Pr. 358, 365; Hatch v. iSpofford, 22 Conn. 485, 
 58 Am. Dec. 433; Story, Eq. PI. 736-744. In case of dispute as to 
 whether Ithe two suits are for substantially the same purpose, the 
 question is generally referred to a master for investigation and re- 
 port. Id. 700, 742-743. 
 
 " Fletcher, Eq. PI. & Pr. 365; 'Gibbs v. Perkinson, 4 H. & M. 
 415; Williamson v. Paxton, 18 Gratt. 475, 504; Priddy v. Hartsook, 
 81 iVa. i64, '69; Keys Planing Mill Co. v. Kirkbridge, 114 tVa. 158. The 
 reason why the objection is made here by a rule to 'elect, rather than 
 by a plea of the pending action at law, probably rests on the con- 
 sideration that if 'set up by a plea, a decision on the plea in favor of 
 the defendant would necessarily call for a dismissal of the plaintiff's 
 bill, and force him to stake his entire reliance on the action at law — a 
 result in conflict with the more gracious policy of the equity courts, 
 which is not arbitrarily to dismiss the bill for this cause, but to per- 
 mit the plaintiff to exercise his own option ,as to Kvhich of the suits 
 he will abandon. The same option should be permitted under ■§ 1331, 
 supra. 
 
 " Davis V. Morriss, 76, Va. 31; Staunton v. Embrey, 93 U. S. 548; 
 Hatch V. Spofford, /23 Conn. 485, 58 Am. Dec. 433 — a case at law, in 
 which' a plea of a former suit in equity, pending in another state, was 
 offered in abatement, but the opinion in which, by Ellsworth, J., 
 contains a luminous exposition of the general topic of pleas of former 
 suits pending, both at law and in equity. See also Story, Eq. PI. 741. 
 
114 Equity Pleading and Practice 
 
 § 2331/^. Plea to the jurisdiction — in abatement. — The 
 
 plea to the jurisdiction has been considered in a previous chap- 
 ter,i8 as has also the plea in abatement on other grounds.^^ 
 
 CHAPTER XVI. 
 
 Defensive Pleadings — Continued. 
 
 3. The Answer. 
 
 § 234. The Answer in chancery. — The Answer is the plead- 
 ing by which the defendant sets up his defense, or defenses, at 
 large, and in somewhat circumstantial detail. It is the most com- 
 mon method of making defense in chancery suits. The answer 
 (with immaterial exceptions) may be used for any defense or 
 defenses available to the defendant.^ 
 
 § 235. The same — both a pleading and an instrument of 
 evidence. — The answer is unique in being the only pleading, 
 at law or in equity, possessing evidentiary value in favor of the 
 pleader. At law, the allegations of a declaration, or of a plea, or 
 a replication, or other pleading — or those of the bill, or of the 
 plea in chancery — have no value whatsoever as evidence in the 
 pleader's favor, but are mere statements of the plaintiff's claim, 
 or of the defendant's defense, to be supported later by such evi- 
 dence as the parties may be able to produce at the trial. 
 
 But from earliest days it has been the settled rule of equity 
 practice that the answer of the defendant must be under oath, 
 and being under oath it is to ibe treated as of high evidentiary 
 value. 
 
 1. The Answer As an Instrument of Evidence. 
 
 § 236. Value of answer as an instrument of evidence — 
 
 " See ante, §§ 13-15, 25-39n, 50. 
 
 " Ante, § 64. 
 
 ' See supra, § 339. For form of answer, see post. Appendix. 
 
The Answer 115 
 
 (1) in ordinary chancery cases. — The uniform rule of the 
 chancery courts, unmodified by statute, is that the sworn answer 
 of the defendant, so far as it is responsive to the allegations of 
 the bill (and no further) is evidence in behalf of the respondent 
 (but not of a co-defendant),^^ of such weight that it may be 
 overcome only by the testimony of two witnesses, or of one wit- 
 ness and corroborative circumstances, or other equivalent testi- 
 mony-2 
 
 § 237. The same — reason for the rule stated. — Com- 
 mentators are not agreed as to the reason on which the rule 
 stated rests ; but that suggested by Chief Justice Marshall^ seems 
 quite satisfactory, namely, that "the plaintiff calls upon the 
 defendant to answer an allegation he makes, and thereby admits 
 the answer to be evidence. If it is testimony it is equal to the 
 testimony of any other viritness ; and as the plaintiff cannot pre- 
 vail if the balance of proof be not in his favor, he must have 
 circumstances in addition to his single witness, in order to turn 
 the balance." 
 
 § 238. The same — waiver of the oath — the equity rule. 
 
 — While there is some lack of harmony among the authorities, 
 the better rule is that, in the absence of an enabling statute, the 
 plaintiff cannot deprive the defendant's answer of this eviden- 
 tiary force, by waiving the oath in his bill* 
 
 '=' Save under exceptional circumstances. Carle f. Corhan, 127 Va. 
 223. 
 
 ' Story, Eq. PI. (10th ed.) 849a, 875a; Thornton v. Gordon, 2 
 Rob. (Va.) 719; Seitz v. Mitchell, 94 U. S. 580. The rule does not 
 apply where the statements of the answer are merely made on in- 
 formation and belief; nor where they are manifestly absurd, contra- 
 dictory or impossible; nor where the answer is not direct and posi- 
 tive in its denials and explanations; nor where it appears that the 
 defendant could have had no personal knowledge of the matters 
 to which he swears; nor as to new matters stated in avoidance. 1 
 Story, Eq. PI. (10th ed.) 849a (n); Banks v. Manchester, 128 U. S. 
 244; East India Co. v. Donald, 9 Ves. 275; Town v. Needham, 3 Paige 
 545; Fant v. Miller, 17 Gratt. 187. For rules governing the answer 
 in the Federal Court, see infra, § 240. 
 
 " In Clark v. Van Riemsdyk, 9 'Cranch 158, 160. See footnote to 
 the section following. 
 
 ' Thornton v. Gordon, 2 Rob (Va.) 719. "It has been argued," 
 says Allen, J., in this case, "that the rule giving to the answer the 
 weight of evidence arises 'from the right of the plaintiff to call for 
 a discovery; that this is a right of the plaintiff and he may waive it. 
 
116 Equity Pleading and Practice 
 
 § 239. The same — statutory waiver. — But in Virginia, 
 and probably in most of the states of the Union, the plaintiff is 
 now permitted by statute ^ to waive the oath in his bill, and thus 
 deprive the answer of its ancient force — and, indeed, of all force, 
 as self-serving evidence. Where the plaintiff thus avails himself 
 of the statutory privilege and waives answer under oath, tha an- 
 swer, whether sworn to or not, loses its evidentiary character and 
 is relegated to the lower rank of a mere pleading.® 
 
 * * *" (But) "if this 'were the "sole foundation of the rule, it 
 would seem to follow that if, by calling upon the defendant to answer, 
 the answer when made is admitted to be evidence of the fact, the 
 plaintiff would be concluded by it. 
 
 "Perhaps the origin of the rule is 'to be found in the civil law, 
 which required the evidence of two witnesses as the foundation of 
 a decree. * * * To whatever source the rule is traced, it is firmly 
 established as one of the fundamental principles of a court of equity. 
 It is the law of the forum, and all who apply to it for relief must 
 submit to have, their causes tried according to its established modes 
 of procedure." Jones v. Abraham, 75 Va. 466; Clements v. Moore, 6 
 Wall 299; Carle v. Corhan, 127 Va. 223; Farrell .z/. Forest Investment 
 Co. (Fla.), 74 So. 216, 1 A. L. R. 25, and monographic note. The .case 
 last cited indicates that the Florida practice conforms substantially 
 to the Federal Equity Rules; and the opinion is held that under the 
 new Equity Rules the defendant cannot, by waiver, be deprived of 
 the ancient advantage of answering under oath. The monographic 
 note cited contains a full collection of authorities on the subject of 
 the answer as evidence, both under the original practice, and under 
 statutes authorizing waiver of the oath. 
 
 ° Va. Code 1919, § 6128. By the terms of the statute, the plaintiff 
 may either waive oath as to the entire answer, or he may require 
 oath only as to certain specific interrogatories of the bill — in which 
 latter case, the answer to these interrogatories would retain its 
 former force as evidence. 
 
 Question arose in Johnson v. Mundy, 123 Va. 730', whether, on a 
 waiver of answer under oath, the plaintiff might insist, nevertheless, 
 upon discovery called for in the bill. In an exhaustive opinion by 
 Sims, J., it was held, (1) Ithat the rule of equity practice requiring 
 the defendant who answers at all to answer fully, is not abrogated 
 by the statutory waiver of oath — that is, as a rule of pleading, the 
 answer must still reply to all material allgations of the bill; but (2) 
 the waiver of the verified 'answer deprives the plaintiff of the former 
 right to search the conscience of the \defendant and to compel dis- 
 closures not required by the rules of pleading, but intended to serve 
 as evidence in behalf of the plaintiff. It follows that waiver of the 
 oath deprives the plaintiff of 'the right to demand discovery. 
 
 In Blanchard v. Dominion Nat. Bank, 125 Va. 586, the court takes 
 occasion to suggest to the bar a brief form of waiver, viz., that the 
 defendants named "be made parties defendant to this bill, and waiving 
 answer under oath" that they may answer the same, etc. 
 
 ° This seems clear enough from the language of the statute, and 
 the conclusion is confirmed in MilUhizer z>. McKinley, 98 Va. 207; 
 Baker v. Cummings, 4 App. D. C. 230. The verified answer may of 
 
The Answer 117 
 
 § 240. The answer in Federal courts of equity.— The 
 
 radical changes in the equity practice of the Federal courts are 
 especially conspicuous in the rule governing the answer, which 
 now becomes practically the only pleading available to the de- 
 fendant. It is provided that every defense in point of law which 
 was formerly the subject of demurrer or plea shall be made by 
 motion to dismiss or by answer — and thac every defense hereto- 
 fore presentable by plea in bar or abateni/ent shall be m<ide in the 
 the answer J 
 
 It is further provided that the answer may set up "as many 
 defenses, in the alternative, regardless of consistency, as the de- 
 fendant deems essential to his defense." ^ 
 
 § 241. The same — continued. — In the Federal practice, the 
 answer is also made to serve largely as a substitute for the cross- 
 bill, by the provision that "the answer must state in short and 
 simple form any counter-claim arising out of the transaction 
 which is the subject-matter of the suit, and may, w-ithout cross- 
 bill, set ^out any set-off or counter-claim against the plaintiff 
 which might be the subject of an independent suit in equity 
 against him."^ 
 
 Provision is made for a reply by the plaintifif, where such set- 
 off or counter-claim is asserted in the answer — but in the a})- 
 sence of such cross-claims, the filing of the answer makes up the 
 issue, and no replication is reqiiired.^° Provision is also made for 
 amending the answer, ii 
 
 § 241i^. The same — continued — oath. — Former Federal 
 Equity Rule 41 provided for the waiver of the verified answer. 
 This provision is omitted from the new Rules, leaving it some- 
 what doifbtful whether the original equity practice with respect 
 to answers under oath is, or is not, revived. 
 
 The unusual function now performed by the answer under 
 
 course still be used as an affidavit, wherever an laffidavit is admissible 
 as evidence — as, for example, on motion to dissolve a temporary in- 
 junction. Va. Code 1919, l§ 6128. 
 
 ' Rule 29. 
 
 ' Id. 30. 
 
 » Id. 30. 
 
 " Id. 31. 
 
 " Id. 19, 34. 
 
118 Equity Pi^eading and Practice 
 
 the new Rules — substituting (both demurrers and (pleas — and 
 the language of the several Rules touching the answer, seem by 
 implication to eliminate the right of the defendant to make oath 
 to his answer, when not required by the bill, and thereby obtain 
 the advantages secured to him by the original equity practice. i^ 
 
 § 242. The answer as evidence, continued — (2) hearing 
 on bill and answer only. — As will be explained later, where 
 the plaintiff conceives that the answer sets up no valid defense, 
 instead of demurring to it, as he would at law, the proper mode 
 of testi^g the sufficiency of the defense asserted is to have the 
 case set down for hearing on. bill and answer — without any 
 replication, and of course without the taking of testimony. By 
 thus going to hearing on bill and answer,, the plaintiff admits 
 as true all the allegations of the answer — not only those re- 
 sponsii>e to the allegations of the bill, but even new matter in 
 avoidance of the plaintiff's claims. ^^ 
 
 This follows as a necessary consequence of the plaintiff's hav- 
 ing elected not to file a replication, thus precluding the defend- 
 ant from offering testimony dehors the record, in support of the 
 answer. In other words, where the plaintiff thus sets the cause 
 down for hearing on bill and answer only, he in effect admits all 
 matters of fact well pleaded in the answer, and asserts that not- 
 withstanding their truth they constitute no valid defense to the 
 bill — thus substantially demurring to the answer. 
 
 § 243. The same — (3) in a court of law — in response 
 to a pure bill of discovery. — Where the bill is filed merely to 
 secure discovery to be used in a pending action at law, and the 
 discovery is so used, the court of law applies its own rules; and 
 hence treats the answer, when introduced, before the jury, as, the 
 evidence of a single witness. That is, the question of the weight 
 to be given to the answer as evidence will be left to the discretion 
 
 ^ See Equity Rules 29-32, 58 — the last making special provision 
 for discovery under oath when required in the bill on interrogatories. 
 But see Farrell v. Forrest Investment Co. (Fla.), 74 So. 216, 1 A. 
 L. R. 25, n. 
 
 " Infra, § 248; Kennedy v. Baylor, 1 Wash. 162; Day v. Smith, 6 
 Munf. 142; Perkins v. Nichols, 11 Allen 542; Fletcher, Eq. PI. & Pr. 
 356; Story, Eq. PI. (10th ed.) 456. See Tabb v. Cabell, 17 Gratt. 160; 
 Cocke V. Minor, 25 Gratt. 246. 
 
The Answer 119 
 
 of the jury.i* 
 
 § 244. The same — (4) answer to a bill of discovery, re- 
 tained by the court of equity— (a) discovery had.— Where 
 
 a bill of discovery is filed in aid of a pending action at law, and 
 discovery is had, regularly this ends the proceeding in the equity 
 court, and the answer may then te used in the law court, with the 
 effect as shown in the preceding section. 
 
 But, particularly where the action in the law court is merely 
 contemplated or threatened,!^ and the prospective plaintiff at 
 law has filed his bill for discovery in aid of his action — or the 
 defendant in aid of his defense, as he may do — the court of 
 equitv, in accordance with its policy of giving complete relief, 
 and to prevent a multiplicity of suits, will generally retain the 
 bill, and will proceed to give complete relief, though this 'be 
 purely legal. ^"^ Having assumed jurisdiction for one purpose, 
 certainty in the practice in such cases, 
 jurisdiction attaches for all purposes. 
 
 Where the cause is thus retained, and the discovery sought, is 
 obtained, it seems that the court gives the answer the same 
 weight as a court of law would have given it — namely, as the 
 testimony of a single witness}"^ 
 
 § 245. The same — (b) no discovery obtained. — Where 
 the plaintiff's demand is properly enforceable only at law, but 
 the necessity of discovery drives him into equity, the court of 
 equity, as we have seen, may retain the bill and administer legal 
 relief. Here, since the plaintiff must allege his inability to prove 
 the allegations of his bill without discovery from (the defendant, 
 and must make oath to his bill — one of the few cases where the 
 oath is required — it follows that if the defendant, by his testi- 
 mony, in the ,form of his answer to the bill, should deny the al- 
 legations of the bill, of course the bill must be dismissed. The 
 
 " McFarland v. Hunter, 8 Leigh 489; Lyons v. Miller, 6 Gratt 437- 
 7 Va. Law iReg. 108-110; Fletcher, Eq. PI. & Pr. 820. But on an issue 
 out of chancery, the verified answer is entitled to the same weight 
 as if ■ the issue were being tried before the (chancellor. Powell 
 V. Manson, 23 Gratt. 177. 
 
 '* 2 Story, Eq. Jurisp. 1483. 
 
 '" See ante, § 153, where reference is made to the distressing un- 
 
 " See following section, note. 
 
120 Equity Pleading and Practice 
 
 question here is rather one of jurisdiction. If, in this situation, 
 the plaintiff were allowed to dispute the truth of the answer, he 
 would be proving himself out of the court — because he is in 
 equity only on the ground that he is dependent upon the defend- 
 ant's testimony, to prove his case. If he secures no such testimony 
 from the answer, then the jurisdiction of the court of equity is 
 ousted, and the bill must be dismissed. ^^ 
 
 2. How sufficiency of answer tested. 
 
 § 246. The answer, continued — insufficiency. — As we 
 
 have already seen,i* a demurrer does not lie to an answer, but 
 only to an aggressive pleading. But if an answer set up a counter- 
 claim, and is treated as a cross-bill, ^^ its sufficiency as to such 
 counter-claim may be tested by a demurrer. 
 
 Objections' to an answer may assume two forms: (1) That the 
 answer does not fully respond to the charges made in the bill — 
 or does not make the discovery called for, with the fullness and 
 completeness required by the rules of the forum; and (2) That 
 the defense, or defenses, set up in the answer are not sufficient 
 in law as a bar to the relief sought in the bill. 
 
 § 247. (1) Answer not reponsive — exceptions. — By 
 
 non-responsiveness here is meant the failure of the answer, in 
 its actual content, to conform to the rules of the formn, because 
 of evasiveness, or failure to answer fully the allegations or 
 interrogatories of the bill. 
 
 Where such insufficiency appears, the plaintiff's objection is 
 made by excepting to the answer, and in his exceptions distinctly 
 stating the grounds of his objections. 
 
 It follows, then, that resort is had to exceptions only when 
 the plaintiff desires a more perfect answer.^^^ If, on the other 
 hand, the answer is merely insufficient in law as a defense to the 
 bill, naturally the plaintiff will not desire a more perfect answer 
 
 " See this very much confused subject discussed by the late Judge 
 Lamb, 7 Va. L,aw Reg. 107. See supra, § 153, note. 
 
 '" Ante, The Demurrer, ch. xiv. 
 
 '^° Ante, The 'Crossbill, ch, xii. 
 
 '°^. Langdell, Eq. PI. 84; Fletcher, Eq. PI. & Pr. 333; Story, Eq. 
 PI. 864-86i6; ,4 Minor's Inst. 1427-1438; Coleman v. Lyne, 4 Rand. 
 454, 456. See further, § 248, infra, n. 
 
The Answer 121 
 
 and thus give the defendant opportunity of setting up a better 
 defense. In such case the plaintiff will proceed as indicated in 
 the following section. 
 
 Exceptions to answers are abolished in the .Federal court 
 practice,^! and in Virginia, by the revisal of 1919,22 are substi- 
 tuted by motion to strike out. 
 
 § 248. The same — Virginia statute. — It is not entirely 
 clear from the section of the Virginia Code cited, whether, in 
 abolishing "exceptions to answers for insufficiency" the revisors 
 used the term exceptions in its accepted sense, as directed to the 
 insufficiency of the answer in faitim.g to respond fully to the 
 allegations of the till, or in the sense in which term has recently 
 been (inadvertently and incorrectly) used by the Virginia court, 
 as directed to the insufficiency of the answer as a defense in law 
 to the case made in the hill — an objection heretofore asserted 
 only by setting down the cause for hearing on hill and answer. 
 Section 6123 provides that if, on exceptions sustained, the an- 
 swer "be found amendable," the court may allow amendment. As 
 an answer not properly responsive is always amendable, this leg- 
 islation seems to be intended to substitute, by the motion to 
 strike out, not only exceptions proper, to test the sufficiency of 
 the answer in form, — that is, to require a better answer — but as 
 a defense in law as well.^^ Doubt is cast on this conclusion, how- 
 
 "" Equity Rule 33. 
 
 " Va. Code 1919, § 6123. 
 
 ^ That exceptions are only proper where the answer is 'not prop- 
 erly responsive, or is otherwise defective in form, is the settled 
 practice, as shown by the authorities cited in the footnote 30 above. 
 This especial function of exceptions is pointed out in Judge Carr's 
 opinion in Coleman v. Lyne (supra), and is exemplified in Clark v. 
 Tinsley, i Rand. 250; Craig v. Sebrell, 9 Gratt. 131, and Johnson v. 
 Wilson, 29 Gratt. 890. But in Kelly v. Hamblen, 98 Va. 383, 391, the 
 court, by an obvious inadvertence, confused exceptions to an answer 
 with hearing on bill and answer — and this error was repeated in one 
 or more subsequent cases. See Keys, etc., Co. v. Kirkbridge, 114 
 Va. 58. 'Possibly the confusion caused by these later cases, led to 
 the ambiguous language of § 6123. 
 
 Federal Equity Rule 33, however, from which, as indicated in the 
 revisors' note, a portion of § 6133 was borrowed, seems equally 
 ambiguous. This rule reads as follows: "Exceptions for insufficiency 
 of an answer are abolished. But if an answer set up an affirmative 
 defense, set-off or counter-claim, the plaintiff may, upon five days' 
 notice, or such further time as the court may allow, test the sufficiency 
 of the same by motion to strike out. If found insufficient but amend- 
 
122 Equity Pleading and Practice 
 
 ever, by a later section, ^^ declaring that on waiver of oath in the 
 bill, the answer shall not be evidence in the respondent's favor, 
 "unless the cause be heard on bill and answer." The hearing on 
 bill and answer, therefore, seems preserved. 
 
 § 249. The same — (2) answer insufficient in law. — As 
 
 just mentioned, objections by way of exception to the answer, 
 are not to fulfill the office of a demurrer, in raising the question 
 of the sufficiency in law of the answer as an affirmative defense 
 to the bill If plaintiff desires to submit to the court the suffi- 
 ciency of the answer as a defense to the case asserted in the bill, 
 the proper method is to "set down the case for hearing on the 
 bill and answer." Here there is no replication filed, and there- 
 fore no opportunity for either party to take depositions — since 
 until replication filed there is no issue of fact to be sustained by 
 testimony. The effect of this is, of course, to admit the truth of 
 all matters of fact sufficiently pleaded in the answer, whether re- 
 sponsive to the bill or whether in confession and avoidance ;-and 
 to submit to the court the decision of the question whether 
 on the facts as they appear from the answer, the decree should 
 
 able, the court may allow an amendment upon terms, or strike out the 
 matter." 
 
 Virginia Code, § '6123 reads thu.e; "Exceptions to answers for in- 
 sufficiency are abolished. The test of sufficiency shall be taade by a 
 motion to strike out; if found insufficient, but amendable, the court 
 may allow amendment on terms. If a second answer is adjudged 
 insufficient the defendant may be examined on interrogatories; and 
 committed until he answer them, or, on motion of the plaintifi, the 
 court may strike out the answer and take the biM for confessed." 
 
 It will be observed that the Code amendment omits that portion of 
 Rule 30 here italicized. It will be observed also that under Rule 30 the 
 motion to strike out is confined to the answer which "sets up an af- 
 firmative defense, set-off or counterclaim!' The Code amendment is 
 not so restricted. The Federal rule seems clearly to authorize the 
 striking out of any affirmative defense, not sufficient in law, as a de- 
 fense to the bill — as, for example, the statute of parol agreements 
 when the case presented in the bill is not within the statute. But it 
 seems to offer no substitute for exceptions to answer for evasive- 
 ness or non-responsiveness. The Code amendment, on the other 
 hand, seems meant to substitute the motion to strike out for every 
 form of insufficiency of answer — whether for insufficiency in law as a 
 defense or whether insufficient in not properly responding to the 
 charges, or the interrogatories of the bill. The form in which both 
 the Federal Rule and the Virginia Statute are expressed indicate 
 misconception of the true function of exceptions to answers 
 
 '* Va. Code 1919, § 6138. 
 
The Answer 123 
 
 not go in' favor of the plaintiff.^® 
 
 In short, going to hearing on the bill and answer is, for some 
 purposes, practically the same as a demurrer at law to the plea. 
 
 Since this course on the part of the plaintiff excludes any op- 
 portunity on the part of either party to take testimony, 
 there is good reason for the rule that the plaintiff thereby admits 
 the truth of all facts set up in the answer relevant to the case 
 stated in the bill. 
 
 § 250. The same — hearing on bill and answer — contin- 
 ued. — It follows from the foregoing that going to hearing on 
 bill and answer is a perilous proceeding, unless the plaintiff is 
 sure that the admissions in the answer are sufficient to establish 
 the material allegations of his bill — since, as already indicated, 
 there is no opportunity in such a situation to introduce other 
 evidence, and the entire answer, so far. as relevant to the case 
 made in the bill, is taken as true. 
 
 On such hearing, if the answer is held insufficient in law as a 
 defense to the bill, the plaintiff is entitled to a decree. If, on the 
 other hand, the answer is held sufficient, the bill is dismissed.^® 
 Hence the result is decisive for one or the other of the parlies. 
 
 When the case is thus heard on bill and answer, it is imma- 
 terial whether the- answer is sivorn to or not — since, by so set- 
 ting down the cause, the plaintiff admits the truth to the answer, 
 to the extent stated. ^'^ 
 
 6128. 
 
 3. Miscellaneotis Rules Governing the Answer. 
 
 § 251. The answer continued — allegations not an- 
 swered. — The contrast between the practice at law and that in 
 equity is strikingly exhibited in the case where the defendant 
 
 '^ Story, Eq. PI. 877; Fletcher, Eq. PI. & Pr. 333, 677; Langdell. 
 Eq. PI. 83; ,4 Minor's Inst. 1444; supra, § 342; Goodman v. Goodman, 
 124 Va. 249; authorities n. 12, supra; full note 1 A. L. iR 39. 
 
 " Langdell, Eq. PI. 83; Daniell, Ch. Pr. 1189; Fletcher, Eq. PI. & 
 Pr. 677; Pickett v. Chilton, 5 Munf. 483; Cocke v. 'Minor, 25 Gratt. 
 246_. Quaere as to how plaintiff should proceed where the answer 
 is insufficient as a defense to one part of thei bill and sufficient as to 
 another part? 
 
 " Fletcher, Eq. PI. & Pr. 677. The Virginia statute authorizing 
 waiver of answer under oath makes express exception of the unveri- 
 fied answer in hearings on bill and answer only. Va. Code 1919, § 
 
124 Equity Pleading and Practice 
 
 has failed to deny all the allegations of the plaintiff's declara- 
 tion and of his bill, respectively. 
 
 The rule at law is that all allegations of the declaration not 
 denied by the plea' are taken to be admitted — while the rule in 
 equity is precisely the reverse, namely, that allegations of the bill 
 not denied nor noticed in the ansv/er, are not to be taken as ad- 
 mitted by the defendant, but, if material to the plaintiff's case, 
 must be proved by independent testimony. If the plaintiff de- 
 sires to insist upon a response to such allegations he should ex- 
 cept to the answer for insufficiency ^^ — or, in Virginia, by motion 
 to strike out.^^ 
 
 § 252. The same — aUithentic&tion of corporate an- 
 swer. — The answer of the corporation itself, unsworn e:e neces- 
 sitate, and therefore not self-serving evidence in behalf of the 
 corporation, is necessarily a mere pleading, whether by the un- 
 written rule or whether to a bill containing a statutory waiver of 
 the oath. As a mere pleading then, there seems no reason why 
 the corporate answer need be authenticated in any special form 
 not required of "natural persons, nor required of a corporation 
 with respect to its other pleadings, at law or in equity. 
 
 Formerly, the signature of a corporation, not authenticated by 
 its corporate seal, was an unthinkable proposition — whether in 
 connection with contracts or pleadings — hence the rule, that the 
 corporate signature should be authenticated by the corporate 
 seal. Judges and lawyers of that by-gone day thought of corpo- 
 rate documents in terms of the corporate seal. It is not surpris- 
 ing, therefore, to find judges of that day laying down the rule 
 that as corporations could not answer under oath, 'they must 
 answer under their corporate seal.' Obviously, the thought in 
 the judicial mind was, not the necessity of the corporate seal, 
 but the im,possibility of the corporate oath.^^ 
 
 ^ Coleman v. Lyne, 4 Rand. 454; Wright v. Wright, 124 Va. 114. 
 The rule is otherwise in the Federal courts by Equity Rule 30; and 
 is not applicable, in any case, on a motion by the defendant to dis- 
 solve a temporary injunction. Here failure to deny a material al- 
 legation is very properly taken as an admission of its truth, for the 
 purposes of the motion to dissolve. B. & O. R. Co. v. Wheeling, 13 
 Graft. 62. 
 
 -' Va. Code 1919, § 6123; supra; § 248. 
 
 °° See authorities n. 31, infra. 
 
Thh; Answer 125 
 
 In spite of the circumstance that for almost a century the cor- 
 porate seal has been relegated to the lower plane occupied by the 
 seal of a natural person, the statement persists in extra-judicial 
 opinions, and text books, that a corporation defendant must 
 answer not under oath but under its corporate seal. 
 
 § 253. The same, continued. — No case has been encoun- 
 tered in which a corporate answer has been rejected because 
 not under the corporate seal. As the corporate answer is a mere 
 pleading, there is no principle which would distinguish the cor- 
 porate answer from the corporate bill, or plea in equity, or the 
 declaration, or plea, or replication, at law. Nor is it believed to 
 be customary in the practice, in Virginia or elsewhere, to authen- 
 ticate the pleadings of a corporation, whether plaintifif or defend- 
 ant, or whether at law or in equity, by the corporate seal. 
 
 § 254. Answer of corporation, continued — discovery. 
 
 — Prior to modern statutes authorizing waiver of oath to the 
 answer, as well as since, where the plaintifif desires discovery 
 under oath from a corporation defendant, the approved method 
 of procedure was, (and is, in the situation last stated), to make 
 party defendant to the bill some ofificer of the corporation who is 
 presumably familiar with the facts to which the discovery relates, 
 and to pray discovery under oath from such officer. This pro- 
 cedure is justified by the circumstance that a corporation cannot 
 be sworn, and therefore cannot, in its corporate capacity, ans- 
 wer under oath ; and its answer under its corporate signature or 
 seal, or both, is not evidence in its behalf, but a mere pleading.^^ 
 A bill of discovery, therefore, against a corporation, cannot 
 be maintained, unless some officer thereof be made a co-defend- 
 ant, and required to answer under oath.^^ -g^^ {^ (-ase the bill 
 calls for discovery, and yet fails to comply with the rule stated, 
 if the corporation defendant waives the objection, and files its 
 answer verified by one of its corporate officials, as of his per- 
 sonal knowledge, such answer is entitled to all the weight, as 
 
 =' Supra, §§ 252-a53; B. & O. R. Co. v. Wheeling, 13 Gratt. 63; 
 Roanoke St. R. Co. v. Hicks, 96 Va. 510; Union Bank v. Geary, 5 
 Pet. 99; Lovell v. S. S. Mill Ass'n, 6 Pai. 54. See the following 
 section. 
 
 '' Roanoke St. R. Co. v. Hicks, supra. 
 
126 Equity Pleading and Practice 
 
 evidence in behalf of the defendant coriporation, as a verified 
 answer of an individual defendant.^^ 
 
 § 255. Amendment of answer. — Where the answer is sworn 
 to, as it must have been under the former practice, there were 
 sound reasons why the courts were reluctant to permit amend- 
 ments — a privilege to be granted only in rare instances and for 
 good cause shown, as in case of mistake or surprise. 
 
 But where, by reason of waiver of the oath in the bill, the 
 answer is not sworn to, and hence is no longer the sworn testi- 
 mony of the respondent, but a mere pleading, there is no reason 
 why amendments should not be permitted as freely as in the case 
 of any other pleading. Amendment of answers is provided for 
 in the Federal practice.^* 
 
 § 256. Answer treated as cross-bill. — In a previous 
 chapter,"^ it was pointed out that, in the discretion of the court, 
 a defendant may be permitted to assert an affirmative claim in his 
 answer, and thus present the example of an answer serving the 
 double function of an answer and a cross-bill at the same time. 
 The practice in such cases has been already explained. 
 
 ^ Carle v. ,Corhan, 127 (Va. 223, citing with approval 7 Va. Law 
 Reg. 145; Kane v. Schuylkill Fire Ins. Co. (Pa.), 48 Atl. 989. 
 ** Equity Rules 19, 33. 
 *° Ante, ch. xii. 
 
The Replication '^^27 
 
 CHAPTER XVII. 
 
 The Replication. 
 
 § 257. The rephcation in equity. — This very simple plead- 
 ing requires but little explanation. As already indicated in our 
 treatment of the amended bill/ special replications are obsolete 
 in equity pleading, and have been substituted by the amended 
 bill; so that under modern equity practice the complete case 
 of the plaintiff must be shown in his bill, original or amended.^ 
 
 § 258. Replication always general. — In modem times, 
 therefore, the replication in equity is general only — that is, it is 
 a mere traverse, (or denial) in general terms, of the defensive 
 allegations of the plea or answer, and, by implication, a reasser- 
 tion of the allegations of the bill. The replication may not, there- 
 fore, confess and avoid, but may merely deny the defensive alle- 
 gations of the adversary pleading. If the plaintiff desires to 
 confess the truth of the defendant's pleading and to avoid such 
 confession by adducing new matter, he must resort to an amended 
 bill.3 
 
 If, on the other hand, the plaintiff means to admit the truth of 
 the defensive allegations in the answer, and to contest their legal 
 sufficiency as a defense, he will omit the replication, with the ef- 
 fect shown in the following section. 
 
 § 259. The same — function of the general replication. — 
 
 '■ Supra, § 158. 
 
 ' The special replication was abandoned because of the delay and 
 expense entailed. Story, Eq. PI. 878. 
 
 " Thus, under a general replication, plaintiff cannot confess a re- 
 lease set up by the defendant, and avoid the effect by proving that 
 the release was executed during infancy, nor set up fraud in the in- 
 ducement — but he is restricted to proof that he did not execute such 
 release. It seems, however, that if the release, or other defense, set 
 up in the plea or answer, is absolutely void, and not voidable only — 
 as a release by a married woman under the common law disabilities 
 of coverture — or, doubtless, under circumstances .constituting fraud 
 in the factum — such invalidity may be shown under a general repli- 
 cation. Stewart v. Conrad, 100 Va. 138, 7 Va. Law Reg. 767 (n). 
 
128 Equity Pi^eading and Practice 
 
 The special function subserved by the general replication is to 
 inform the defendant that the plaintiff does not admit the 
 truth of the plea or answer, but, on the contrary, that the plaintifif 
 means to controvert all the defensive assertions therein — thus 
 warning the defendant that he must sustain his defensive allega- 
 tions by testimony. Hence the rule of the forum is, not without 
 reason, that failure on the part of the plaintiff to file a replica- 
 tion is an admission of the truth of the adversary pleading. The 
 result is, that if the latter be a plea, the case must be heard on the 
 bill and plea only — that is, in professional phrase, the plea is "set 
 down for argument." If the adverse pleading be an answer, the 
 juridical situation is that the case must be "heard on. hill and 
 answer" — a very dangerous situation for the plaintifif, as we have 
 already seen.* 
 
 § 260. The same — It appears, therefore, that oily by filing 
 the replication is an issue of fact raised — an isr>ue that must be 
 decided on testimony to be introduced by each party. Until the 
 replication to the plea or answer is filed, therefore, there is no 
 issue of fact, and hence, regularly, no testimony can be taken. 
 So that, after all, the general replication serves a quite useful 
 function in equity practice.**^ 
 
 § 261. The replication in Virginia. — But as (prior to the 
 recent amendment requiring replications to be entered by the 
 clerk'), the actual filing of replications in Virginia was ex- 
 tremely rare — counsel usually relying on the clerk of the court 
 to enter on the rule-book a memorandum of such filing, based on 
 fiction only; or else relying on the recitation, usually inserted in 
 the first decree, that the cause was "heard on the bill and 
 answer (or plea) mth general replication thereto" — many 
 cases formerly reached the court of appeals in which (by over- 
 sight of the clerk or of the counsel) there was no replication, 
 either in fact or in fictitious recital ; but the parties had pro- 
 
 ' Supra, §§ 204-205; Cocke v. Minor, 25 Gratt. 246. 
 
 '^ Where the bill makes material admissions in favor of the de- 
 fendant, in which admissions the answer concurs, a general replica- 
 tion by the plaintiff does not destroy the value to the defendant of 
 these admissions, nor place their truth in issue. Blanchard v. Do- 
 minion Bank, 125 Va. 586. 
 
 = Va. Code 1919, § 6138. 
 
The Replication 129 
 
 ceeded, notwithstanding, to take testimony as if there had in 
 fact been a replication. In sucli cases the court was accustomed, 
 somewhat unreasonably, to reverse the case for want of a rep- 
 lication. To remedy this a statute « was enacted, providing, in 
 substance, that the absence of a replication shall be immaterial 
 where the defendant has taken depositions as if there had been 
 a replication; or where, even though defendant has not taken 
 depositions, substantial justice has been done. 
 
 § 262. Replication in the Federal courts. — Under the new 
 Rules,'^ replications are practically abolished, save where the an- 
 swer asserts a set-off or counter-claim, or where a reply is spe- 
 cially ordered by the court or judge. The cause is regarded as 
 at issue as soon as the answer is filed ; and any new or affirmative 
 matter therein shall be "deemed to be denied by the plaintiff." 
 
 If the cross-claim affect other defendants, provision is made 
 for service of a copy of the claim on such defendants or their 
 counsel, who are entitled to ten days within which to reply. 
 
 This brings us to an end of our consideration of the Pleadings 
 in Equity, proper. Our subsequent studies in the volume will 
 be devoted to what may be loosely termed Equity Practice. 
 
 Va. Code 1919, § 6332. 
 Rule 31. 
 
130 Equity Pleading and Practice 
 
 CHAPTER XVIII. 
 
 The Testimony. 
 
 1. Depositions. 
 
 § 263. Oath — affidavit — deposition. — An oath is an oral 
 statement of fact, duly sworn before an official authorized by 
 law to administer oaths. 
 
 Affidavit is a written statement of fact, made in an ex parte 
 proceeding, usually signed by the person ('affiant') making the 
 statement, duly signed and sworn to before an authorized offi- 
 cial, and duly certified by him. The certificate of the officer is 
 termed the jurat. ^ 
 
 Deposition is the written, sworn and certified testimony of a 
 witness, taken before an authorized official, in inter partes pro- 
 ceedings, in which adverse parties in interest are given oppor- 
 tunity to appear and cross-examine the witness ('deponent'). 
 
 Both the affidavit and the deposition, therefore, necessarily 
 connote a precedent or aocoi ipanying oath — though the term 
 oath alone implies neither of these. 
 
 § 264. The same — use of the affidavit. — Affidavits and 
 depositions are both written and certified statements under oath 
 — ^the difference being that the former are taken in a summary 
 manner, without notice to the adverse party {ex parte), while the 
 latter are taken on notice to all adverse parties, who thus have 
 the opportunity of appearing and cross-examining the witness 
 {inter partes). It follows that affidavits are incompetent testi- 
 mony on the merits of the cause. They are only admissible to es- 
 tablish prima facie the truth of the allegations offered, for the 
 purpose of procuring preliminary or collateral action by the court 
 touching some procedural step in the cause, not affecting the 
 merits of the controversy — as, for example, on a motion for a 
 
 ' In Virginia, by long custom, affidavits are not , signed by the 
 aflfiant — the language being wholly that of the official before whom 
 the affidavit is made. See forms in Appendix. . 
 
The Testimony 131 
 
 preliminary injunction; for the dissolution of such an injunction; 
 to obtain an order of publication, or an attachment, against a 
 non-resident ; or a continuance of the cause because of the absence 
 of a material witness; to establish an uncontested claim before 
 a master, on an order of reference ; to obtain an attachment 
 against the person of the defendant in contempt proceedings, etc. 
 
 § 265. The use ©f the deposition. — In the common law 
 courts, regularly the testimony is presented to the jury by the 
 witnesses in person, who testify orally {ore tenus) before the 
 court and jury, and in the presence of the parties and their coun- 
 sel. At law, it is only in exceptional cases that depositions may 
 be substitnled for oral testimony. Statutes generally provide 
 thai the de;:)osition of a witness may be Ifi';-. n where he is beyond 
 the state, so that compulsory process may ni^r reach him — or 
 where he resides at a considerable distance from the place of 
 trial, or where too ill to appear, etc.^ 
 
 As indicated in the following section, in equity depositions 
 are regularly resorted to in lieu of testimony ore tenus. But 
 whether used at law or in equity, testimony by deposition is used 
 for the same purpose as that presented ore tenus, namely, to 
 prove or disprove facts in issue in the cause, whether on the 
 merits or otherwise. 
 
 § 266. The testimony in chancery. — After the cause is at 
 issue, the next step is the taking of the testimony of witnesses. 
 In the equity practice the testimony is not taken in the presence 
 of the chancellor at the trial of the case, but the depositions of 
 the witnesses are taken in writing before a notary, or other au- 
 thorized officer, prior to the hearing.^ 
 
 ' Va. Code 1919, § 6231. 
 
 " Formerly depositions were taken under a commission expressly- 
 issued for the purpose by the court (no longer required in Virginia 
 — Va. Code 1919, § 6327), and were taken secretly by the examiner, 
 on written interrogatories filed by the respective counsel. Neither 
 counsel_ nor parties were permitted to be present, and hence until 
 the taking of all testimony was closed and the result made public — 
 which was done only by order of the court, technically known as 
 "passing publication" — counsel had knowledge neither of the nature 
 of the interrogatories filed by his adversary, nor of the answers of 
 the witnesses thereto. It was only by special leave of court, and for 
 cause shown, that further testimony could be taken after publica- 
 tion passed. The purpose of this secrecy was to avoid the tempta- 
 tion to procure perjured testimony in defense or rebuttal. 
 
132 Equity Pleading and Practice 
 
 Reasonable notice, in writing, to the adversary is required of 
 the time and place of the taking of the depositions, in order that 
 he may appear and cross-examine the witness, if desired. After 
 a deposition is taken, it is subscribed by the witness, certified by 
 the officer, and then transmitted by the officer to the clerk of the 
 court where the suit is pending.*" 
 
 § 267. Depositions — dispensing with notice. — Where the 
 defendant has been summoned by publication, and has not ap- 
 peared, in person or by counsel, no notice of the taking of dep- 
 ositions is required unless ordered by the court.* 
 
 It is a quite common custom in Virginia to take depositions, 
 by stipulation between counsel, without service of notice. 
 
 § 268. The same — rules of evidence. — The rules of evi- 
 dence are practically the same in equity as at law — and so as to 
 the competency of witnesses.^ 
 
 § 269. Exceptions to evidence. — In equity, as at law, ob- 
 jections to evidence, or to the competency of a witness offered 
 by the opposite party, are considered as waived, unless the ob- 
 jection be seasonably made. These objections in equity are ex- 
 pressed in the form of exceptions, taken in writing, and entered 
 in the body of the deposition. Such exceptions should distinctly 
 point out the ground upon which they are based. Since the officer 
 before whom depositions are taken has no power to pass upon the 
 exceptions, the practice is, after exception entered, to permit the 
 contested evidence to go in, subject to be excluded on argument 
 of the exceptions before the court. 
 
 We cannot here go into the details of the practice in taking 
 testimony, — and must content ourselves with a general reference 
 to treatises on evidence, and to certain statutory provisions in 
 Virginia.® 
 
 § 270. Time within which depositions may be taken — 
 
 "a See Va. Code, §§ 6338-6334. 
 
 ' Va. Code 1919, § 6071. See §§ 6333-6236. 
 
 ° The right of discovery from either party was formerly a con- 
 spicuous exception, already noticed. 
 
 "■ Va. Code 1919, §§ 6333-6333, and revisors' annotations. For 
 form of deposition, see post, Appendix. 
 
The Testimony 133 
 
 ( 1 ) earliest period. — The question as to how early in the prog- 
 ress of the cause the parties may begin the taking of. testimony, 
 seems not to have been definitely resolved. Custom, however, 
 seems to permit the plaintiff to begin the taking of testimony as 
 soon as the cause is matured and set for hearing, though the de- 
 fendant has not appeared. In the Federal courts^ the rule con- 
 templates that depositions (when permissible at all) may be taken 
 after the cause is "at issue" — which, where the defendant has 
 not appeared and pleaded, and evidence supplementary to the de- 
 cree pro confesso is required, probably means after the cause is 
 matured and set for hearing. 
 
 In Virginia, by the recent revisal,* it seems that the taking of 
 depositions may be begun (by the plaintiff) as soon as the bill is 
 filed, and therefore before any issue whatsoever is made up. 
 
 § 271. The same— (2) latest period. — Where not regu- 
 lated by statute or rule of court, as it is not in Virginia,* there 
 is no fixed period within which the parties, plaintiff and defend- 
 ant, must complete the taking of their testimony. So far as 
 there appears to be any- rule on the subject in the Virginia prac- 
 tice, the parties have a reasonable time within which to take tes- 
 timony. In practice, this reasonable time is construed by pro- 
 fessional comity to mean all the time either party desires — with 
 the result that there is much inexcusable delay in the trial of 
 chancery causes. The court has the power to rule either party 
 to greater diligence, and to fix a limit of time beyond which no 
 further testimony may be taken; but counsel in Virginia who 
 would resort to such harsh and unaccustomed measures in a 
 chancery suit, except under very unusual circumstances, would 
 be regarded by his professional brethren as a disturber of an- 
 cient traditions and as encroaching upon one of the cherished 
 privileges of the profession. 
 
 § 272. Testimony continued — ore tenus in Federal 
 
 ' See infra, § 372, n. 
 
 ' Va. Code 1919, § 6335. 
 
 " See Goode I-. Bryant, 118 Va. 314, 87 S. E. 588. The only known 
 statutory provision on the subject in Virginia, is the provision that 
 a deposition may be read, if returned 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. Va. Code 
 1919, § 6338. 
 
134 Equity Pleading and Practice 
 
 courts. — The method of taking testimony in the equity practice 
 of the Federal courts has been revolutionized by the new Equity 
 Rules, by the provision that "in all trials in equity the testimony 
 of witnesses shall be taken in open court." ^^ But provision is 
 made for taking depositions, by special order of the court, wher- 
 ever permitted by (Federal) statute, or "for good and excep- 
 tional cause, * * * to be shown by affidavit." ^^ The dep- 
 ositions when permissible must be taken promptly, as indicated 
 in the footnote. 
 
 § 273. Depositions — in case of infant or insane par- 
 ties. — By the unwritten rules of equity practice, the presence of 
 infant or insane parties in the suit does not alter the usual 
 method of taking depositions. In such cases, notice is served on 
 the guardian ad litemv, and the circumstance that the latter was 
 not actually present when the testimony was taken is immate- 
 rial to the competency of the testimony. "^^ 
 
 The statutory rule in Virginia has long been otherwise, where 
 the purpose of the suit was to sell the lands of infant or insane 
 defendants. In such cases, depositions -are not competent evi- 
 dence against such defendants unless taken in the presence of 
 the guardian ad litem, or upon interrogatories agreed upon by 
 him. This provision, by the recent revisal, has been extende^d 
 to all cases in which infant or insane defendants are parties.^^ 
 
 *" Rule 46. The same rule makes provision for what is practically 
 a hill of exceptions where evidence is offered and exdluded over the 
 objection of either party. 
 
 '^ Rule 47. Depositions for the plaintiff must be taken, unless 
 otherwise ordered by the court for good cause, within sixty days from 
 the time the cause is at issue; and those for the defendant within 
 thirty days thereafter — with twenty days for rebuttal testimony. 
 
 As to evidence before examiners, or like officers, see Rules 49-54. 
 Provision is made by Act of Congress for depositions in certain 
 cases — as where the witness lives more than a hundred miles from 
 the place of trial, or is sick, or infirm, or is about to go without 
 the jurisdiction, etc. U. S. Rev. Stat., §§ 863-867. Rule 54 preserves 
 this right. As to the construction of these statutory provisions, 
 see Patapsco Ins. Co. v. Southgate, 5 Pet. 604; McLennan v. Railway 
 Co., 23 Fed. 198; Giles v. Paxson, 36 Fed. 883; Thum v. Andrews, 53 
 Fed. 84; Am. Exchange Bank v. First Nat. Bank, 83 Fed. ©61, 27 C. 
 C. A. 374; Gormley v. Bunyan, 138 U. S. 623. 
 
 " Moore v. Triplett, 96 Va. 603. 
 
 " Va. Code 1919, § 5339. 
 
Issue Out of Chancery 135 
 
 2. Issue Out of Chancery — Or 'Feigned Issue.' 
 
 § 274. Issue out of chancery — when proper. — Although 
 regularly the testimony in chancery is not taken ore tenus, hut 
 is presented in the form of depositions of witnesses, yet where 
 the testimony is so conflicting, or the circumstances of the case 
 are otherwise such, that the chancellor is in doubt as to the 
 truth of a particular issue of fact, he may refer the question to 
 a jury for a verdict thereon, in aid of his conscience.^* 
 
 Originally such issues were framed by the chancellor and sent 
 out to a common law court for trial — the latter court through 
 judicial comity certifying the verdict back to the chancery court. 
 But in Virginia, where the same court exercises both law and 
 equity jurisdiction, these issues are tried before the chancellor 
 himself — and whether on the chancery or law side of the court 
 is immaterial. 15 The Virginia statute ^^ authorizes the court, 
 in its discretion, to order such an issue even before any evidence 
 is taken, where it is "shown by affidavit or affidavits, after rea- 
 sonable notice, that the case will be rendered doubtful by the 
 conflicting evidence of the opposing party." 
 
 § 275. The same — waiver by the parties. — In a recent 
 Virginia case,i^ the testimony on certain disputed questions of 
 fact was so conflicting as to present a proper case for an issue 
 to be tried by a jury, but as neither party requested such a trial 
 the chancellor himself tried and decided the issue. On appeal, 
 the appellate court found the testimony of so conflicting a na- 
 ture that grave doubt was entertained whether the finding of the 
 
 " Though the directing of such an issue is a matter of judicial dis- 
 cretion, an error in the exercise of this discretion js ground of ap- 
 peal, and the appellate court will itself determine whether the dis- 
 cretion has been tightly exercised. Catron v. Norton Hardware Co., 
 123 )Va. 380. 
 
 " Lavell V. Gold, 35 Gratt. 473; Meade te. Meade, 111 Va. 451. See 
 Powell V. Mason, 22 Gratt. 177, where Staples, J., explains the 
 practice and procedure. See further: Michie's annotation to iLavell 
 V. Gold, ubi, supra; .Stevens v. Duckett, 107 Va. 17; Carter v. Jefleries, 
 110 Va. 735; Face v. Cherry, 117 Va. 41; Goode v. Bryant, 118 Va. 
 314. For forms of such issues, see Carter v. Jefferies, supra, and 
 Jones V. Buckingham Slate Co., 116 Va. 130, 134. See Federal Equity 
 Rule 23. , 
 
 " Va. Code 1919, § i6346 and annotations; Bunkley v. Com. (Va.), 
 108 S. E. 1. 
 
 " Shoemaker v. Shoemaker, 113 Va. 798. 
 
136 Equity Pi<eading and Practice 
 
 lower court was or was not in accordance with justice. There 
 upon the appellate court reversed the decree, and directed the 
 chancellor, in spite of the implied waiver of the parties, to sub- 
 mit the issue to a jury. 
 
 The decision has been criticized ^^ on the ground that since 
 the parties had waived a jury trial, the decree could not be re- 
 versed for the failure of the lower court to direct such a trial 
 — in accordance with the maxim consensus tollit errorem. But 
 when it is recalled that in this state the erroneous exercise of 
 judicial discretion is ground for reversal ; that the question of 
 directing the trial of an issue by jury is to be determined by 
 the court, according to the circumstances of the case, regard- 
 less of the wishes of the parties; and that on appeal in a chan- 
 cery case it is the duty of the appellate court to consider the testi- 
 mony and pass upon the issues of fact involved, in spite of the 
 findings of the chancellor below ; and hence that it is as fully the 
 right and duty of the higher court, ex mero motu, to direct such 
 an issue, in aid of its judicial conscience, as it is the right and 
 duty of the chancellor below, in aid of his conscience, the criti- 
 cism loses force. In short, if the parties cannot by their waiver, 
 or by their expressed protest, deprive the chancellor of the 
 power to call in the assistance of the jury, neither should such 
 waiver or protest deprive the aipellate court pi the power to in- 
 sist that a jury pass upon the issue.^® 
 
 § 276. Effect of the verdict.— The effect of the verdict 
 on an issue out of chancery is quite different, in theory at least, 
 from that of a verdict in a plenary action at law — since the for- 
 mer is regarded as merely admsory, and in aid of the chan- 
 cellor's conscience; and if the chancellor disagree with the jury, 
 he may not only reject the verdict, but may himself decide the 
 issue of fact contrary to the view taken by the jury. While 
 this is the theoretical situation, in practice the verdict will gen- 
 erally be accepted; and if rejected, unless there were material 
 errors committed on the trial, or the circumstances unusual, the 
 appellate court would be apt to accept the decision of the jury 
 rather than that of the chancellor.^* 
 
 " 17 Va. Law IReg. 717. 
 
 " Catron v. Norton Hardware Co., 133 Va. 380; Hook v. Hook, 126 
 Va. 249; Whitaker v. Lane, 128 Va. 317, 104 S. E. 253. 
 
 ^ Authorities supra; Bunkley v. Com. (Va.), 107 S. E. 1; Basey v. 
 Gallagher, 20 Wall. 670. As to new trials of the issue, see Ruffners 
 
Master's: Report 137 
 
 CHAPTER XIX. 
 
 The Master's Report. i 
 
 § 272. Notice to parties. — The parties interested in the 
 execution of an order referring the cause to a master (usually 
 termed an "order* of referen<ce") are entitled to notice of the 
 time and place fixed upon for the hearing, and a reasonable op- 
 portunity to present evidence of their claiins or in their defense. 
 
 In Virginia this notice may be given by publication in a news- 
 paper when so directed iby the court. ^ The evidence introduced 
 before the master is by depositions, which he must return with 
 his report.^ 
 
 §; 273. Exceptions to report. — By statute, as in Vir- 
 ginia,* or by rule of court as in the Federal practice,^ the report 
 of the master, after completion, is filed in the clerk's office, 
 where it lies for a prescribed period for such exceptions to con- 
 firmation as any party may desire to file. The period in Vir- 
 ginia is ten days, and in the Federal twenty days. Failure to file 
 exceptions will ordinarily operate as a waiver of objections — and 
 in the Federal courts the rule declares that if no exceptions are 
 filed within the period allowed the report shall .stand confirmed.^ 
 
 V. Barrett, 6 Munf. 307; Grigsby v. Weaver, 5 Leigh 197; Watt. v. 
 Stark, 101 fU. S. 247. 
 
 ' For sundry provisions with reference to the appointment, 'powers 
 and duties of masters, and the proceedings before them, see Va. 
 Code 1919, ch. 260; Equity Rules 59-68. 
 
 ' Va. Code 1919, § 6180. See Equity Rules 59-68 (order of refer- 
 ence in iPederal Courts declared permissible only in exceptional 
 cases). 
 
 ' Va. Code 1919, § 6185. 
 
 * Id. § 6186. 
 
 ° Equity Rule 66. 
 
 ' Id. The rule in Virginia is not so strict. In practice it is con- 
 strued as giving any party the right ;to demand a hearing on the re- 
 port after it has been filed for ten days, but not as denying any party 
 the right to file exceptions at any time before the report is heard 
 by the court. 
 
138 Equity Pleading and Practice 
 
 § 274. Character of exceptions. — Exceptions to a mas- 
 ter's report have been likened to special demurrers, in that they 
 must specifically point out the errors complained of, otherwise 
 they will -not be considered.'^ After filing his exceptions coun- 
 sel should see that they are brought to the attention of the court, 
 and, if overruled, that the decree so recites, since on appeal if 
 the court's ruling on the exceptions does not appear, the appel- 
 late court will presume a waiver.^ 
 
 § 275. Weight to which report entitled. — While the 
 finding of the master, on a question of fact, is prima facie cor- 
 rect — because he has seen the witnesses (as the chancellor has 
 not) and been able to observe their demeanor, and their disposi- 
 tion to speak the truth candidly or otherwise — nevertheless such 
 report is not entitled to the weight of the verdict of a jury. 
 That is to say, if upon reading the testimony, as it is the duty 
 of the court to do, on exception made,^ the court is satisfied 
 that the finding should have been otherwise, it will overrule the 
 finding of the master. This rule has been made statutory in 
 Virginia.!*' 
 
 § 276. Confirmation of master's report. — In the ab- 
 sence of statute or rule of court to the contrary, the master's re- 
 port is inchoate and inoperative until it has been considered and 
 confirmed by the court. 
 
 It was pointed out in the third section above that by Federal 
 Equity Rule 66, the master's report will stand confirmed unless 
 exceptions be filed within twenty days from the time the report 
 is returned. 
 
 ' Bank v. Trigg, 103 Va. 337, 340; Wilkes v. Rogers, 6 'Johns. 566; 
 Story \u. Livingston, 13 Pet. 3'&9. See form in Appendix. Where the 
 objection to the report rests in matters 'pf law, arising on the face of 
 the report, exceptions before the master are not necessary — as ques- 
 tions of ilaw are not for the master but for the court. Carle v. 
 Corhan, 127 Va. 223. 
 
 ' Mountain Lake iCo. "V. Blajr, 109 Va. 147. I 
 
 " Shipman v. Fletcher, 91 Va. 473; John Diebold Co. v. Tatterson, 
 115 Va. 766; Alexander <p. Critchter, 121 Va. 723; Barton, Rise and 
 Fall of the Commissioner in 'Chancery, 1 Va. Law Reg. 485; Kimberly 
 V. Arms. 129 U. S. 512. As the 'master is a 'gMOii-judicial officer, 'it 
 goes -without saying that he cannot delegate his functions or any 
 part df them to another person. Mountain Lake Co. v. Blair, "109 
 Va. 147. 
 
 " Va. Code 1919, § 6179. 
 
Orders and Decrees 139 
 
 According to the Virginia practice, the report never stands 
 confirmed because of. failure to file exceptions within the ten 
 day period during which the report must lie for exceptions, nor, 
 indeed, at any other time until an order of the court is enter.?d 
 expressing confirmation.^''- 
 
 CHAPTER XX. 
 
 Orders and Decrees. 
 
 § 277. Explanatory. — The term "order" is properly used 
 to denote some action of the court not touching the merits of 
 the case — for example, appointing a guardian ad litem; giving 
 leave to file a pleading; referring certain incjuiries to a master; 
 continuing the cause, etc. 
 
 The term "decree" is more correctly applied to formal and 
 decisive action by the court, touching the merits of the cause. 
 
 § 278. Preparation of decrees. — Orders and decrees, 
 while couched in the language of the court, and expressing its 
 mandate, are always drawn by counsel — usually by him in whose 
 favor, or on whose application, the order or decree is granted. 
 
 Skill in draughting decrees is an essential professional acquire- 
 ment, and the student cannot too early, or too eagerly, begin to 
 cultivate skill in this line of professional duty. 
 
 In practice, counsel takes (mental or written) notes of the 
 chancellor's decision — unless the chancellor himself hands down 
 written notes for the purpose, as is sometimes done in a com- 
 plicated case. Then, at his leisure, and usually in his own of- 
 fice, counsel draws the form of the decree, conforming as nearly 
 as possible to the chancellor's directions. This is called a "note 
 for decree." 
 
 It is then submitted to adversary counsel for approval. In 
 case of dispute whether the decree correctly expresses the 
 court's views, counsel apply to the chancellor to settle it. 
 
 Supra, n. 6. As 'to conveyances by the master, see post, §§ 309-310. 
 
140 Equity Pi^eading and Practice 
 
 When in final shape, the note for decree is signed by the 
 chancellor — in Virginia, endorsed "enter" and authenticated by 
 the chancellor's initials — and is then copied by the clerk in the 
 "chancery order book." 
 
 § 279. Recording of decrees.^ — All orders and decrees 
 granted each day, are entered in this book, under a general head- 
 ing showing that date ; and at the foot of the entries for that day, 
 the chancellor, on the next or some future day, appends his sig- 
 nature. The order or decree as it appears in the order book, and 
 not the note for decree, constitutes the original record of the 
 court's action. That is to say, the decree is inchoate as a record, 
 until so entered and signed, i 
 
 § 280. "Enrollment" of decrees — English practice.— 
 
 The term "enrollment" in connection with decrees is one of com- 
 mon use in reference to proceedings in the English chancery 
 courts. It probably has no place, and certainly has not the same 
 judicial significance, in the American practice. Under the formei 
 English procedure, interlocutory decrees in chancery appear to 
 have been not always, nor generally, in writing, and hence were 
 not in the record otherwise than in the form Of memoranda, or 
 notes, taken by the registrar. But the "definitive sentence" 
 (i. e., the final decree) was written out and signed by the chan- 
 cellor, and then enrolled. And when thus enrolled, the decree 
 was treated as final, and therefore to be reheard only on a bill 
 of review, without regard to whether the term of the court were 
 ended or not. Indeed the English court of chancery kept no 
 terms, in the American sense of that expression, but was always 
 open. 2 Hence enrollment connoted finality of the decree. A 
 definitive sentence enrolled was, therefore, the test of finality 
 for purposes of a bill of review. The enrollment of decrees un- 
 der the English practice was an elaborate procedure, wholly 
 unknown in the American practice.* 
 
 ' And when a vacation decree, otherwise valid, is entered in the 
 order book by the clerk on iSunday, it is inoperative as a decree of 
 the court, and hence cannot be the foundation of an appeal. Lee v. 
 Willis, 99 Va. 16, 6 .Va. Law Reg. 691n 
 
 ^ See Brooke's Abr. "Jurisdiction," 74; 1 Spence, Eq. Jurisp, 383. 
 
 ' See infra, n. 5. 
 
Decrees — Enrollment 141 
 
 § 281. The same — American practice. — On the other 
 liand, according to American practice, all orders and decrees in 
 chancery, interlocutory as well as final, are reduced to writing 
 and copied in the order book, and signed by the chancellor. But 
 this is not technical enrollment, which, as stated, is a procedure 
 unknown in the American courts. Hence, in the American 
 courts, enrollment, even in the loose sense of recordation, does 
 not connote finality. Thus, as we have already seen in connec- 
 ,tion with Bills of Review,'^ a final decree must not only be a 
 ^ definitive sentence (and in Virginia something more than merely 
 definitive, or settling the principles of the cause), but it must be 
 entered on the order book and signed by the chancellor, and the 
 term of the court must have ended. Hence, in the American eq- 
 uity practice, in addition to (1) the quality of finality in sub- 
 stance, and (2) recordation, the decree is not final until (3) ad- 
 journment of the term.^ 
 
 ' Ante, §§ 188-189. 
 
 " This attempted explanation of the distinction "between the lEnglish 
 and ,the American practice, seems justified, though somewhat ob- 
 scurely, by Mr. Gould's notes to Story, )Eq. PI. 1403 n (a), and 421 n 
 (a) (10th ed.). The explanation is here essayed because of difficulty 
 the author has had jin getting at the sense in which the term "enroll- 
 ment" is used in American books on equity practice, in connection 
 with the review or rehearing of decrees. The statement constantly 
 recurs that "a petition to rehear cannot be filed after enrollment of 
 the decree," — or that "a bill of review will lie only to an enrolled 
 ■decree" — statements intelligible enough when referred to the English 
 procedure, but hopelessly confusing when applied to the American 
 practice. See, for example, 'Story lEq. PI. 431, and passim; Fletcher's 
 Eq. PI. & Pr. 724, 746; Van Zile's Eq. PL & Pr. 333-335. Mr. Ship- 
 man ventures the explanation that a rehearing may be granted only 
 where "the decree has not been enrolled — as it is termed — that is, be- 
 fore the close of the term in which it is rendered."' Shipman, Eq. Ph 
 153. But, as we have already seen, enrollment '(in the sense of 
 recordation) and adjournment of the term do not, according to our 
 practice, render final a decree interlocutory in its nature. 
 
 In the earlier editions of Daniell's Chancery Practice {e. g. 3nd 
 English ed. by Headlam, 1st Am. ed. by Perkins, 1846) 1230-1232, 
 will be found a full account of the highly technical proceedings which 
 accompanied the enrollment of ^ decree, as well as of the legal ef- 
 fect of enrollrnent. See also id (6th Am. Ed.) 1033-1034. The earlier 
 ■editions of this classical work (more accurately portray the English 
 equity practice as inherited by the American courts, than do the later 
 -editions, because of the marked changes produced in the English 
 practice by the General Orders of Lords Cottenham and 'Langdale 
 in 1841, and incorporated into Mr. Daniell's later editions. The 
 student will find some estimate of the comparative values to the 
 American lawyer, of these several editions of Daniell, in the opinion 
 ■of Mr. Justice Bradley, in Thomson v. Wooster, 114 jj. S. 104. 
 
142 Equity Pi,5ading and Practice 
 
 § 282. Nature of final decree. — This question has al- 
 ready been discussed in connection with Bills of Review^ a dis- 
 cussion which need not here be repeated. 
 
 § 283. Form of decrees. — The form of the decree will 
 depend largely on its purport. There is no rule of practice fix- 
 ing a prescribed form; but, as in the case of most legal docu- 
 ments, custom has fixed the form of at least certain parts of 
 the decree, from which it is not well for the young practitioner 
 to depart. 
 
 § 284. Formal recitals. — Under the usual equity practice, 
 the first -decree entered in the cause recites, in the title, the 
 names of all the parties, plaintiff and defendant, as well as all 
 the pleadings and other proceedings on which the cause was 
 heard. Subsequent decrees indicate the abbreviated title of the 
 cause, with the recital that the cause "came on to be heard this 
 day on the papers formerly read," with a further recital of steps 
 taken and papers filed since the last decree.'^ 
 
 § 285. The same — ^in the Federal courts. — In the Fed- 
 eral courts recitation of the pleadings is prohibited, and it is de- 
 
 "From what has been 'said," this master of the English equity practice 
 says, "it may be 'collected that all decrees which are final in their nature, 
 i. e. which amount to a determination of the question in the cause, 
 may be enrolled * * *. But mere interlocutory Hecrees, made upon 
 motion or petition, which do not decide any of the merits of the 
 cause, and only relate to the (proceedings in it, cannot he the subject of 
 enrollment." Id. pp. 1334-1335. In Sands' Suit in Equity (3nd ed.) 
 497, will also be found a description 'of the process of enrolling a 
 decree in the English court of chancery. As further indicating the 
 American view that decrees, whether 'enrolled' or not, and howsoever 
 final in their nature, continue in the breast of the court until adjourn- 
 ment of the term,^ see jformer Equity IRule 88, and the new (Rule 73— 
 the latter declaring that errors of a certain character "may at any 
 time before the close of the term 'at which final idecree is rendered, be 
 corrected by order of the court or a judge thereof, upon petition," 
 etc. 
 
 ° Ante, §§ 188-189. 
 
 ' This practice, borrowed )from the early English practice, con- 
 tinues in Virginia, though by statute or custom obsolete in most of 
 the states. The practice at least possesses the advantage of perma- 
 nently recording, on the face of the decree, a list of the parties and of 
 the pleadings, and other documents on which the case was submitted, 
 and upon which the decree was based, instead of reliance upon the 
 clerk's notation of them in his docket or rule-book, or upon a 'search 
 for this information among the (sometimes lost) papers in the cause. 
 
DECREESi— Infants 143 
 
 dared that none of the pleadings, nor any master's report "or 
 other prior proceeding, shall be recited or stated in the decree or 
 order; but the decree and order shall begin, in substance, as fol- 
 lows : "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 consideration thereof, it was ordered, ad- 
 judged and decreed as follows, viz. : (here insert the decree or 
 order)L."® 
 
 § 286. Decrees against infants. — As a general rule, de- 
 crees are as binding upon infants as upon adults. By the un- 
 written rule, however, it was error not to reserve in final de- 
 crees the right to the infant to show cause against the decree 
 within, six months after attaining his majority. This right has 
 been made statutory in Virginia, without the necessity of any 
 provision therefor in the de.cree.^' 
 
 Under this reservation in the decree, or that provided for in 
 the statute, the infant may impeach a decree only on the ground 
 on which an adult might do so — namely for fraud or collusion, 
 or for error; and only for cause existing when the decree was 
 rendered, and not for causes subsequently arising.^" 
 
 § 287. Dismissal .from docket. — In entering a decree 
 completely disposing of the whole subject-matter of the litiga- 
 tion, it is usual to insert at the end of the decree an order dis- 
 missing the cause — the usual form being: "The object of this 
 suit having been accomplished, it is ordered to be stricken from 
 the docket." 
 
 After such order of dismissal, and adjournment, the court has 
 no power to re-instate the cause, except on a bill of review 
 ('which, in Virginia, must be filed within one year),ii or by 
 
 ° Equity Rule 71. For forms of decrees, and particularly of the 
 "bringing on" clause, under the Virginia practice, see post, Appendix. 
 
 ' Va. Code 1919, § 6305. 
 
 *° Walker v. Page, 31 Gratt. 636; Lancaster v. Barton, 92 Va. 615; 
 Harrison v. Walton, 95 Va. 721, 30' S. 'E. 372, 41 L,. R. A. 703, 64 Am. 
 St. Rep. 830; Asberry v. Mitchell, 121 Va. 376. Like iirovision for 
 rehearing of decrees is made in the case of unknown parties, or 
 parties summoned by publication and who have not appeared. These 
 have two years of grace. Va. Code 1919, § 6072. See post, Sale of 
 Infants' Lands. 
 
 " See ante, 'Bill of Review, ch. xiii. 
 
144 Equity Pi^eading and Practice 
 
 mandate of the appellate court, on an appeal duly taken. But 
 the absence of such order of dismissal, and the circumstance 
 that the cause remains on the docket, have no determining effect 
 on the question of the finality of the decree. That question, as 
 already indicated, depends on the nature of the decree, and ad- 
 journment of the term. The order of dismissal, for whatever 
 cause, is necessarily a final order; but the absence of such an 
 order does not necessarily leave the decree interlocutory, 
 
 § 1288. Need for further relief after final decree — re- 
 serving right to reinstate. — If there be need for further or- 
 ders in the cause after final decree and adjournment, and there 
 be no grounds for a bill of review or an appeal, or these be 
 time-barred, such relief may be secured (if at all) only by the 
 institution of a new suit.^^^ fo avoid this inconvenience, it is 
 common practice, where the circupistances warrant the pre- 
 caution, to reserve, on the face of the final decree, the right to 
 reinstate the catise, on motion, for the purpose of securing com- 
 plete benefit of the decree.^^ 
 
 By Virginia statute,^* the court is authorized to reinstate the 
 cause after final decree, in order that a new commissioner may 
 be appointed, where a commissioner dies or becomes incapaci- 
 tated before conveying property as directed by the decree. 
 
 § 289. Voluntary dismissal — "without prejudice." — 
 
 As hereafter shown more at large in connection with creditors' 
 
 " Post, § 3S1; Battaile v. Maryland Hospital, 76 Va. 63; Echols v. 
 Brennam, 99 Va. 150. Such new bill will necessarily be confined to 
 relief already decreed in the original suit — and its purpose will be 
 merely to secure performance of the former decree, or to obtain 
 modification thereof, or relief therefrom, because of circumstances 
 that have occurred since the former decree was rendered. All matters 
 in controversy in the original suit have become res judicata, and may 
 not be again litigated. As to modification of final decrees of divorce, 
 see post, §§ 415 et seq. 
 
 " See (Peters v. Peters, 121 Va. 559. In a recent case in the Federal 
 courts, in which was a decree dissolving certain relations among the 
 packing houses of Chicago, and prescribing elaborate rules to pre- 
 vent restraint of trade by the defendants, the court entered an order 
 retaining perpetual jurisdiction of the cause, for the purpose of taking 
 such further action therein as might be found necessary in order to 
 secure to the public the benefits of the main decree. U. S. v. [Packers 
 Ass'n. (1921), Fed. . 
 
 " Va. Code 1919, § 5267. 
 
DECREES — Dismissal 145 
 
 bills, the plaintiff is dominus litis, and may dismiss his suit at 
 any stage before affirmative rights of others have attached. This 
 rule is not confined to creditors' bills, but applies to equity suits 
 of every nature. 
 
 An order of reference in a creditors' suit, or the filing of a 
 cross-bill by the defendant asserting a counter claim, is held to 
 deprive the plaintiff of the right to dismiss his bill.^^ 
 
 Where the plaintiff thus voluntarily dismisses his suit, or 
 wherever the suit is dismissed involuntarily for reasons not af- 
 fecting the merits of the case, the order should recite that the 
 dismissal is "without prejudice to plaintiff's right to institute 
 such further suits concerning the same matter as he may be ad- 
 vised" — ^since, in the absence of such a saving clause — particu- 
 larly where the order does not plainly indicate that the dismissal 
 was not on the merits, or was voluntary — the plaintiff, in a fu- 
 ture litigation over the same matter, may be confronted by a 
 plea of res judicata. 
 
 § 290. The same— "dismissed agreed."— This precau- 
 tion against prejudice by reason of the dismissal, is especially 
 important where the order shows that the dismissal was by 
 agreement of parties. Such a dismissal — usually indicated in 
 the brief phrase "by consent of parties this suit is dismissed 
 agreed" — when tjot recited to be 'without prejudice,' implies an 
 adjustment of the litigation, and priwM facie may be pleaded in 
 bar of a new suit on the same cause of action. "It is a declara- 
 tion of record," says Anderson, J., "sanctioned by the judgment 
 of the court, that the cause of action has been, adjusted by the 
 parties themselves, in their own way, and that the suit is dis- 
 missed agreed." i* 
 
 § 291. Dismissal under 'five-year rule.'— To prevent ■ 
 the dockets of the courts from being encumbered with cases 
 which, from neglect of the parties, have become stale, and are 
 not likely to be revived, statutes very generally provide that such 
 cases may be dismissed from the docket, after they have lain 
 
 ^ See Creditors' Bills, post, ch. xxxi. 
 
 "Hoover v. Mitchell, 35 Gratt. 387. See also Siron v. Ruleman, 
 33 Gratt. 315, 333 {per Burks, J.) ; Wohlford v. Compton, 79 Va. 333. 
 Cf. U. S. I*. Parker, 130 U. S. 89; Story, Eq. PI. 793, n. (a). 
 
146 Equity Pleading and Practice 
 
 neglected for a prescribed number of years. In Virginia, this 
 period is fixed at five years. The statute, quoted in the foot- 
 note,!'' prescribes the circumstances under which the court is 
 authorized, ex mero m-otu, to enter an order of dismissal. 
 
 § 292. Correction of errors in decrees. — We have al- 
 ready learned how errors in decrees may be corrected in the 
 trial court, namely, (1) In the case of interlocutory decrees by 
 Petition to Rehear}^ (and in certain cases by motion i^), and 
 (2) in the case of final decrees by Bill of Review.^^ Where 
 these remedies have been resorted to in vain, or where such re- 
 sort is not required, the only remaining remedy is by appeal to 
 a higher court. The subject of appeals is reserved for a later 
 chapter. 
 
 § 293. Enforcement of decrees. — The several methods 
 by which courts of equity enforce obedience to their decrees are 
 explained in a later chapter. ^^ 
 
 " "Any court in which 'is pending a case wherein for more than 
 five years there has been no order or proceeding except to continue 
 it, may, in its Biscretion, order it to be struck from the docket; and 
 it shall thereby be discontinued. A court making such order may di- 
 rect it to be published in such newspaper as it may designate. Any 
 such case may be reinstated, on motion, within one year from the 
 date of such order, but not after." Va. Code 1919, § 6172. See Snead 
 V. Atkinson, 121 iVa. 182. 
 
 " Ante, ch. xiii, § 195 et seq. 
 
 " Id., § 176, note. 
 
 "» Id. ch. xiii. 
 
 '' Ch. xxii. 
 
JuDiciAi, Sales 147 
 
 CHAPTER XXI. 
 
 Judicial Sales. i 
 
 § 294. What is a judicial sale? — Properly speaking a 
 judicial sale is a sale made on behalf of a court of competent ju- 
 risdiction, through an authorized agent, usually a master or com- 
 missioner, and inchoate until confirmed by the court.^ 
 
 Thus a private contract of sale made in pais, which, for lack 
 of authority in the agent-vendor to enter into such a contract^ 
 as a master under a decree directing a 'public' sale,'' or a trustee 
 without authority to sell * — is inchoate without judicial sanc- 
 tion, becomes a judicial sale on confirmation by the court. 
 
 Ordinarily, the term does not include a sale made by a sheriff 
 under a common law execution, which requires no confirmation 
 by the court.^ 
 
 § 295. By whom made. — Sales under decrees of a chan- 
 cery court are usually made by masters, or commissioners — ei- 
 ther regular or specially appointed by the court for the purpose. 
 
 ' See Va. Code 1919, §§ &266-6278; Michie's Ann. 21 Gratt. 636; 
 24 Cyc. 1. 
 
 ' McAllister v. Harman, 101 ,Va. 17 — a sale privately made by a 
 trustee of the interest of one cotenant, and personally by the re- 
 maining cotenant, during the pendency of 'a partition suit brought 
 for partition in kind, and not for a sale for partition or other pur- 
 pose, is not a judicial sale, though, reported to and confirmed by the 
 court in the partition proceedings, and though the purchase money 
 was ordered to be paid to the general receiver of the court. 
 
 ' Hess V. Rader, 26 Gratt. 746. 
 
 * Richardson v. Jones, '106 iVa. 540. A sale by an executor, pos- 
 sessing testamentary power of sale, .made by order of court, in a 
 suit brought in aid of administration, and confirmed by the court, 
 is a judicial sale. Sproul v. Hunter, 122 Va. 102.* See also Johnson 
 V. Merritt, 125 Va. 162. 
 
 " See 24 Cyc. 1. In Yazoo & Mississippi Valley R. Co. v. Clarks- 
 dale (U. S.— |Oct. 1921), 66 h. ed. ooo, per Taft, C. J., a Federal 
 statute declaring that all property sold under any order or decree of 
 any court of the United States shall be sold at public 'sale at the 
 courthouse of the county or parish or city in which the property 
 is located, or on the premises as the court may direct, was iheld in- 
 applicable to a sale by the sheriff under a fieri facias. 
 
148 Equity Pleading and Practice 
 
 In Virginia it is customary to name one or more of the coun- 
 sel in the cause, as special commissioners of sale. They are re- 
 quired, in each case, to give bond, in such penalty as the court 
 may prescribe, with good security; and, to avoid abuses which 
 have occurred in the past, the commissioner is forbidden to ad- 
 vertise the sale until he has executed the required bond. It is 
 further provided that the clerk's certificate that the bond, has 
 been executed shall be appended to the advertisement.® 
 
 § 296. Terms of sale. — The terms of sale are largely in 
 the discretion of the court, to be fixed as seems best in the in- 
 terest of all parties — or, as declared by the statute,'^ "for cash, 
 or on such credit and terms as it" {i. e., the court) "may deem 
 best." 
 
 The usual terms of sale of real property in Virginia, are from 
 ten to twenty-five per centum of the purchase price ca^h (de- 
 pendent on the particular circumstances) ; and the residue on a 
 credit, in equal installments, of six, twelve and eighteen -months 
 (or one, two and three years, according to circumstances) ; in 
 all cases with interest from the day of sale; the purchaser ex- 
 ecuting notes or bonds for deferred installments, payable to the 
 commissioner of sale, or to the order of the court. The de- 
 ferred installments are generally secured by retention of title 
 until the purchase money is fully paid, and not infrequently the 
 court will require sureties on the notes or bonds, and always the 
 waiver of the homestead exemption.* 
 
 " Va. Code 1919, §§ 6'26&-6373; if no special commissioner is ap- 
 pointed, the sale is made by the sheriff or 'sergeant: id., § 6378. The 
 commissioner or officer may receive not more than five ^per centum of 
 the first $300, and two per centum of the residue of the proceeds, as 
 his commissions: id., § 6371. 
 
 ' Id. § 6266. 
 
 ' In some of the circuits in Virginia, on a judicial sale of real 
 property, it is not unusual to secure the deferred payments by deed 
 of trust back. This seems a useless expense — though the extra ex- 
 pense may go 'heaven-directed,' in the form of fees to counsel. The 
 executory contract of sale between the court and the purchaser 
 leaves the legal title in the control of the court — even with- 
 out the common decretal formula "title to be retained until payment 
 of the whole purchase money" — since the title ma^ not be con- 
 veyed without express order of the court. With the title thus 
 in the hands of the court, a vendor's (legal) lien results, for the 
 foreclosure of which, in a 'summary way, in case of the purchas- 
 er's default, ample provision is made by a simple rule to show 
 cause why a re-sale shall not be ordered. Infra, § 305. 
 
JuDiciAi, Sales 149 
 
 § 297. The sale — how made.— While the court has author- 
 ity, in its discretion, to accept private bids,» judicial sales are 
 usually made at public auction, and on the premises, unless the 
 court orders otherwise, and the property is knocked down to the 
 highest bidder. 
 
 The decree of sale should prescribe with preciseness the terms 
 and place of sale, and should give directions as to advertising 
 the sale. 
 
 § 298. Relations between the court and the success- 
 ful bidder. — Acceptance of the bid by the master or commis- 
 sioner creates a somewhat anomalous relation between the court 
 and the bidder. As the bid is not made in the presence of the 
 court, and as the commissioner is without authority to do more 
 than to accept the bid subject to the court's approval, if the or- 
 dinary rules of contract were applied the bidder would not be 
 bound by his bid, for lack of mutuality — and might, therefore, 
 without assigning reasons, and without liability, withdraw his 
 oiifer at any time before acceptance by the court. But to require 
 mutuality of obl'gation in such case, and to permit the succeFs- 
 ful bidder to withdraw after the sale is over and the other bid- 
 ders dispersed, would render the expense of the sale a total loss, 
 and otherwise lead to intolerable inconvenience. If the con- 
 firmation of a judicial sale be subject to the whims, not only 
 of the first successful bidder, but of an indefinite number of 
 subsequent successful bidders, it is a supposable result, in a 
 particular case, that the sale could never be consummated. 
 
 Hence equity has established its own rule on the subject, 
 namely that the bidder is bound from the moment of the con- 
 ditional acceptar£e of his hid, while the court, as vendor, may 
 (not arbitrarily, but in the exercise of a proper discretion) ei- 
 ther accept or reject the hid^^ 
 
 ' Benet v. Ford, 113 Va. 443; Johnson v. Merritt, 125 Va. 162; supra, 
 n. 3-4. 
 
 " While this somewhat dogmatic statement is generally accepted 
 by the profession, difficulty has been encountered in finding 
 authority in which the question is distinctly raised and de- 
 cided. 'Mr. IDaniell asserts that the English rule is contra, and 
 that the bidder is not bound, until acceptance by confirmation of 
 the report. 3 Daniell, Ch. Pr. (6th Am. Ed.) 1275, 1281. No American 
 case has been found where the question of the right of the bidder, 
 before confirmation, to withdraw his bid was squarely presented and 
 squarely decided. The case of Camden v. Mayhew, 129 U. S. 73 
 
150 Equity Pi^eading and Practice 
 
 Statute of frauds. — Another departure, in this connection, 
 from accepted doctrines of the law courts, is the rule of the eq- 
 uity court that its sales are not within the statute of faruds — 
 and hence that the hidder is bound by his parol offer, without a 
 writing.ii f}\Q reason is, of course, that it cannot be presumed 
 that the court would perpetrate or permit the perpetration of a 
 fraud in a transaction to which the court is itself a party. 
 
 § 299. How sale confirmed — report of commissioner. 
 — After sale made, the commissioner makes a report thereof, in 
 writing, to the court, returning with his report a certificate of 
 deposit for the cash payment, and the notes or bonds of the 
 successful bidder, with an itemized statement of the expenses 
 incurred. 12 The report usually contains a recommendation from 
 the commissioner that the sale be, or be not, confirmed, with 
 reasons. 
 
 After lying ten days in the clerk's office for exceptions (or 
 for a shorter period by consent of parties) the report may be 
 
 is the nearest known approach to such a decision. In this case, the 
 property was knocked out to Camden as the highest bidder, on terms 
 requiring full payment in cash. He refused to comply with the terms 
 of his bid, and the commissioner so reported to the court. On the 
 hearing of the report, the bidder, being present, in court, was offered 
 the option of complying with the terms or of having the property re- 
 sold at his risk. He refused to exercise the option, whereupon the 
 court, without in terms confirming the sale, entered an order of resale at 
 the bidder's risk; and the property having brought at the re,-sale a con- 
 siderably less sum, a decree was entered against the original bidder for 
 the difference between the amount of his bid and that produced by the 
 re-sale. The court, in an elaborate opinion by Mr. Justice Harlan, 
 affirmed the decree. It does not distinctly appear, however, from the 
 opinion that Camden, in term.s, repudiated his .bid before confirmation 
 — though his refusal in open court, to abide by it, would seem to 
 have been in fact a repudiation. If so, the decision appears directly 
 in point — since the only ground on which the bidder could have been 
 held liable for the deficiency, was that he was bound by his bid, 
 though not formally accepted. 
 
 In Talley v. Stark, 6 Gratt. 340, and Thomas v. Davidson, 76 Va. 
 338, it seems to have been assumed by all parties, as well as by the 
 court, that the bidder was thus bound before confirmation. Stout v. 
 Philippi, etc., Co., 41 W. Va. 339, 23 S. E. 571 seems also authority 
 for the proposition. Authorities discussing the relations generally 
 between the (purchaser and the court, are collected in Freeman's an- 
 notation to Mount V. Brown (Miss.), 69 Am. Dec. 365, 368-375. See 
 infra, § 305. 
 
 " Robertson v. Smith, 93 Va. 450. 
 
 "^ In sotne jurisdictions, the expenses are paid out of the cash col- 
 lections, without a special order, and vouchers are returned with the 
 report, but this is not the better practice. 
 
Judicial Sai^es 151 
 
 brought to the attention of the court for confirmation or rejec- 
 tion. On confirmation, the transaction for the first time as- 
 sumes the nature of a completed contract, binding the court as 
 well as the purchaser.^^ On rejection, a re-sale is directed, and 
 an order is entered requiring the cash payment and the notes 
 or bonds to be returned to the bidder. 
 
 § 300. Appreciation or depreciation in value before 
 confirmation. — The rule of the English equity courts was that 
 if the property materially appreciated in value before the con- 
 firmation — as by the- falling in of lives, discovery of mines, etc. 
 — the court would refuse confirmation and order a re-sale; and, 
 per contra, in case of material depreciation, as by injury from 
 fire or flood, the bidder would not be held to his bid.^* 
 
 The American rule seems to be the same, in spite of the ap- 
 parent difference between the English and American view as 
 to the binding nature of the unconfirmed bid.i^ 
 
 § 301. Re-sale by purchaser before confirmation. — If 
 before confirmation of the sale it comes to the attention of the 
 court that the purchaser has re-sold his inchoate contract at an 
 enhanced price, the court will usually refuse to confirm the sale, 
 and will order- the prt)perty to be again put up for sale — since 
 such resale is an indication that the property did not bring its 
 full value at the court's first sale. Such re-s4le by the purchaser 
 is known as "trading behind the back of the court." '^^ 
 
 ^ Johnson v. Merritt, 135 Va. 163. For an exposition of the principles 
 which should guide the court in confirming or refusing to confirm the . 
 commissioner's report of sale, see Brock v. Rice, 37 Gratt. 813 {per 
 Staples, J.); Berlin v. Melhorn, 75 Va. 639 {per Burks, J.); Watkins 
 V. Jones, 107 Va. 6; Howell v. Morien, 109 Va. 20'0i. See Opening the 
 Bidding, infra, § 302. 
 
 " 3 Daniell, Ch. Pr. (6th Am. Ed.) 1375— results necessarily flow- 
 ing from the English rule, as already noted, that until confirmation 
 the bidder was not bound by his ofier. 
 
 "" The rule as to re-sales by bidders at an enhanced price, and the 
 principle of opening the biddings, noticed in the sections following, 
 seem to sustain the proposition stated as to the effect of appreciation 
 in the value of the property before confirmation. And while the books 
 abound in assumptions that the converse rule obtains in case of ma- 
 terial depreciation, little or no direct authority can be cited. See Hey- 
 wood V. Covington, 4 Leigh 373; Taylor v. Cooper, 10 'Leigh 317, 319; 
 Cocke V. Gilpin, 1 Rob. 39; Brock v. Rice, 37' Gratt. 813, 815; Berlin 
 V. Melhorn, 75 Va. 633, 641; Va. F. & M. Insurance Co. v. Crabtree. 
 85 Va. 857, 861 all indicating that the rule operates equally in favor 
 of the bidder or against him. 
 
 " Camp V. Bruce, 96 Va. 531; 4 Va. Law Reg. 743, and note bv 
 Prof. Burks. i 
 
152 Equity Pi,eading and Practice 
 
 § 302. Opening the bidding — upset bids. — Where lana 
 has been cried out at a judicial sale, the legal situation before 
 confirmation, as already pointed out, is peculiar — the purchaser 
 being bound by his bid, while the court, under whose decree the 
 sale is had, is not bound to accept the bid ; but, on the contrary, 
 may refuse to confirm the sale, and may order a re-sale, if, in its 
 opinion, the property did not bring its fair value. 
 
 The policy of the court, however, is to encourage prospective 
 bidders to attend its sales and thus insure a fair price for the 
 property that it administers. This policy is best subserved 
 when bidders are encouraged to feel that if the property is 
 cried out to them the court will confirm the sale. The practice 
 of entertaining new bids from other parties who come in after 
 the sale is over, with offers of a larger sum for the same prop- 
 erty (known as "opening the biddings"), is not only unfair to 
 the original successful bidder, but tends to discourage bidding 
 at such sales. Hence, where the market has been fairly tested 
 by an open and public sale, courts are averse to receiving upset 
 bids, particularly where the new bidder attended, or had an op- 
 portunity to attend, the public sale.^'' Such a bidder may fairly 
 be suspected of trading on the judgment of the successful bid- 
 der. 
 
 Nor, after such a test of the market, will the court regard 
 with favor after-stated opinions, affidavits of inadequate price, 
 and similar inducements to reject the bid accepted and re-open 
 the biddings. 1* 
 
 " This subject is well discussed in a note by Prof. Burks in i Va. 
 Law Reg. 690, 693. See Stortz v. Voss (Ky.), 305 S. W 610; 8 Am. 
 & Eng. Enc. PI. & Pr. 65; Watkins v. Jones, 107 Va. 6; Lillard v. 
 Graves, 133 Va. 193; Hilliard v. Union Trust Co., id. 734; Graham 
 V. Burgess, 117 U. S."191; Pewabic Mining Co. v. Mason, 147 U. S. 
 367. Where, however, the biddings are opened to let in a new bidder 
 the practice is not to accept the new bid as final, but to order a re-sale 
 at what is known as an "upset price" — that is, on the second offering 
 no bid less than the new bid will be received, and if no larger price 
 be offered at the re-sale, the property is cried out to the person 
 whose enhanced bid induced the opening of the biddings. The latter 
 is generally required, as a condition of ordering a re-sale, to give se- 
 curity to insure that he will stand to his upset bid. 
 
 " Benet v. Ford, 113 Va. 443; Hardy v. Coley, 114 Va. 570; L4tton 
 V. Flanary, 116 Va. 710; Lillard v. Graves, 133 Va. 193— advanced bid 
 of ten per centum rejected in the last three cases.' Nor does the cir- 
 cumstance that infants are parties in interest alter the rule. Litton 
 V. Flanary, supra. 
 
Judicial Sai^es 153 
 
 § 303. Title of purchaser— caveat emptor.— In judicial 
 sales it is a settled rule that the court does not guarantee the ti- 
 tle or acreage (unless the latter be stipulated), but the purchaser 
 buys at his own risk. 
 
 Courts of equity, however, are usually careful to see that all 
 interests and all adverse claims are represented in the suit, so 
 that the sale may be made free of liens or other incumbrances, 
 or clouds on the title, and that the purchaser may receive a good 
 title to the property sold.^'' The purchaser is usually allowed 
 time before the sale is confirmed to examine the title, and w-ill 
 not be required to take the property if the title turns out not 
 to be a marketable one. He should object to the title, however, 
 by excepting to the report of the commissioner of sale, before 
 the sale is confirmed to him; 2" exception made thereafter is gen- 
 erally too late, except in case of fraud or mutual mistake or sur- 
 prise, which, had the sale been a private one between individuals, 
 would have justified a court of equity in rescinding the same 
 for that cause. ^^ 
 
 § 304. Collection of purchase money — by whom.^Un- 
 
 less the court otherwise directs, the commissioner of sale, after 
 execution of the required bond, is authorized to collect the re- 
 quired cash payment, and the deferred installments of purchase 
 money as they fall due from time to time.^^ These collections 4ie 
 should promptly deposit in some bank approved by the court, 
 and take therefor a certificate of deposit payable to the order of 
 
 " See Account of Liens, post, Ch. xxxi. Kirk v. Oakey, 110 Va. 67; 
 Virginia Iron Co. v. Bond, 111 Va. 319; Steinman v. Clinchfield Coal 
 Corp., 131 Va. 611; 3 Daniell, Ch. Pr. 1276. 
 
 •" Long v., Weller, 29 Gratt. 347; Boyce v. Strother, 76 Va. 862; 
 Sproul V. Hunter, 123 Va. 102; Ostenburg v. Union Trust Co., 93 
 U. S. 424; authorities supra, n. 19. 
 
 "^' Pechin v. Porterfield, 128 Va. 53; Traylor v. Atkinson (Va.), 108 
 S. E. 199; authorities supra. 
 
 '^ Va. Code 1919, § 6272. 
 
154 Equity Pleading and Practice 
 
 the court in the designated cause, and should file this certificate 
 with his report. 
 
 § 305. The same — purchaser in default. — In case the 
 purchaser makes default, either in limine in not complying with 
 the terms of sale by making the cash payment and executing the 
 required obligations for the deferred payments, ^s or in failing 
 to meet the deferred payments as they fall due, the court may, 
 after service of a rule to show cause, order a re-sale at his risk — 
 this summary proceeding being justified by the fact that by pur- 
 'chasing at the judicial sale, the bidder becomes a qtuasi party 
 to the suit, and submits himself to the jurisdiction of the court 
 for 'all purposes connected with the sale and purchase.^* In 
 case the property brings less at the re-sale, the defaulting pur- 
 chaser is personally liable for the deficiency. 
 
 § 306. The same — grace to purchaser. — As an order of 
 re-sale for default of the purchaser is in substance but a process 
 for the enforcement of. a vendor's (legal) lien, it is error if the 
 decree fails to provide for a reasonable time, by way of grace, 
 within which the purchaser may make good his default before 
 sale made — in analogy to the grace usual in decrees for fore- 
 closure of mortgages. 25 
 
 § 307. Purchaser's right of possession. — Where the 
 terms of sale do not otherwise provide, the purchaser becomes 
 entitled to possession as soon as the master's report is con- 
 firmed. ^^ Before confirmation, as already shown, he has no 
 right whatsoever in the property.^'' 
 
 If the person in actual possession wrongfully refuses to de- 
 
 '^ Camden v. Mayhew, 129 U. S. 73; Stout v. Philippi, etc., Co., 41 
 W. Va. 337, 35 'S. E. 571. 
 
 "■ Supra, § 398; Clarkson v. Read, 15 Gratt. 388; Long v. Weller, 
 29 Gratt. 347; Thornton v. Fairfax, 29 Gratt. 669, '677; Hurt v. Jones, 
 75 Va. 341; Williams v. Blakey, 76 Va. 254. The Virginia statute 
 makes special provision for summary proceedings in the cause for 
 a personal decree against the purchaser and his sureties — or against 
 the commissioners and his sureties where the principal fails to ac- 
 count for his collections. Va. Code 1919, § 6373-6S77. 
 
 "= Long V. Weller, 29 Gratt. 347. 
 
 '" Hurt V. Jones, 75 Va. 341. 
 
 " Terry v. Cole, 80 Va. 695. 
 
Judicial Sales 155 
 
 liver possession to the purchaser, the court will direct a writ of 
 assistance^'"' to issue to the sheriff, directing the latter to de- 
 liver possession to the purchaser — or, as an alternative, the court 
 may issue an attachment against the recalcitrant for contempt. 
 After confirmation, and possession delivered, or open, to the 
 purchaser, the risk of 'depreciation, from whatever cause, rests 
 with the purchaser — the situation being analogous to that be- 
 tween vendor and vendee in an ordinary executory contract of 
 sale between individuals. In case, therefore, the purchaser de- 
 sires to take out insurance against loss by fire, or other precau- 
 tions against injury or spoliation, he should do so as soon as the 
 sale is confirmed to him. 
 
 § 308. Piirchase money paid^conveyance of title. — 
 
 As soon as the purchaser has completed payment of the pur- 
 chase money, he becomes entitled to a conveyance. This is prac- 
 tically always made by a master, or commissioner, specially ap- 
 pointed by the court for the purpose. The master, or commis- 
 sioner, who made the sale, and who collected the purchase 
 money, is not eA- officio competent to make the conveyance, with- 
 out special judicial authority. 
 
 § 309. Conveyance by proxy — the master's deed. — It 
 
 is probable that under the original equity practice, a deed or 
 other document required by decree, could only have been exe- 
 cuted by the defendant or defendants in person ; and involuntary 
 performance could only have been enforced by the process of 
 contempt, or, if this failed to move an obstinate, or non-resi- 
 dent or absconding defendant, the only recourse was the seq- 
 uestration of his property. 
 
 Since the decree could operate only in personam — on the per- 
 son or conscience of the defendant — it was (as it continues to 
 be, in absence of a remedial statute) incapable, ex propria vigore, 
 of operating to transfer legal title. ^^ 
 
 This difficulty is now quite generally obviated by statutory 
 provision authorizing -courts of equity to appoint a special mas- 
 
 "» Post, § 316. 
 
 '^ Lile, Notes on Eq. Jurisp. (ed. 1921) pp. 32-33; Proctor v. Perebee, 
 1 Ired. Eq. 143, 36 Am. Dec. 34, and n. Cf. Jones v. Woodstock Iron 
 Co., 95 Ala. 551. 
 
156 Equity Pleading and Practice 
 
 ter to execute conveyances, or other writings, on behalf of any 
 party to the cause; and imparting to such writings the same 
 potency as if such party were sui juris, and had executed the 
 same in person.^* 
 
 Other statutes go even further, and declare that the decree 
 itself shall, ex propria vigore, operate to transfer legal title ac- 
 cording to its terms, either in all cases or in certain instances 
 named. The Virginia statutes are of restricted application — be- 
 ing confined to decrees in partition suits ^^ and those filling va- 
 cancies in the office of trustee. ^^ 
 
 § 310. The master's deed, continued.— As already in- 
 dicated, the master who conducted the sale and received pay- 
 ment of the purchase money, has no implied authority to make 
 conveyance of title, but must await the express direction of the 
 court. His deed should recite the title of the cause, the court, 
 and the date of the decree under which he derives his author- 
 ity. In absence of statutory requirement, it is not necessary 
 that the deed be made in the name or names of the party or par- 
 ties on behalf of whom the conveyance is made; nor need their 
 names be recited. The master may be named (in his official ca- 
 pacity) as sole grantor, and the words of conveyance may like- 
 wise be his own ; and he may sign, seal, and acknowledge the in- 
 strument in his official capacity.^^ 
 
 By a recent statute in Virginia,*^ however, it is provided that 
 
 ^ Va. Code 1919, § 6S96; Hurt v. Jones, 75 Va. 341; Johnson v. 
 Merritt, 125 Va. 163. 
 
 =° Va. Code 1919, § 5283. 
 
 •' Id. § 5303. 
 
 "^ For form, see Appendix. As to (he efifect of the master's deed 
 generally, see Johnson v. Merritt, 135 Va. 163. There seems no 
 necessity for a report from the master that he has executed the 
 deed, though in some of the circuits in Virginia such a report is 
 customary. See Johnson v. Merritt, supra. 
 
 ■" Acts 1918, p. 444. The Act is unskillfully drawn, and is likely 
 to give rise to puzzling questions of interpretation. Nor is the pur- 
 pose at all clear. The probable thought in the mind of the draughts- 
 man was to facilitate the tracing of titles; but as there is no require- 
 ment that the conveyance shall he made in the names of the parties, 
 nor that the conveyance, when recorded, shall be indexed in any other 
 name than that of the master, as heretofore, the provision that the 
 deed "shall specifically set out" the names, seems to fail of its pur- 
 pose. Nor is it clear what is meant by names of all persons "on 
 whose behalf the same is executed;" and even if this were made 
 
Judicial Sales 157 
 
 every master's deed "shall specifically set out, as nearly as may 
 be practicable," the name or names of the person or persons "on 
 whose behalf the same is executed;" save that where made on 
 behalf of heirs of a decedent, these may be described simply as 
 heirs of such decedent. 
 
 § 311. The same — conveyance by foreign master. — 
 
 As the decree of the courts of one state cannot affect property 
 in another state, it follows that where the court of the former 
 directs a conveyance by its master, of property in the latter state, 
 such conveyance is inoperative to transfer legal title** — though 
 possibly binding the conscience of the parties to the suit, and 
 hence passing equitable title. 
 
 § 312. Payment to disqualified master. — As indicated 
 in a former section, the master is not authorized to receive pay- 
 ment of any part of the purchase money until he has duly qjuali- 
 fied by executing the required bond, with approved security, be- 
 fore the clerk of the court. It follows that if the purchaser 
 pays any portion of the purchase money to an unqualified mas- 
 ter, he does so at his own risk; and, in case the master fails to 
 account for the fund, the loss falls upon the purchaser, who will 
 be required to pay a second time ^° — unless the clerk, in pursu- 
 ance of the statute, ^^ has certified to the qualification, and the 
 certificate has been published with the advertisement of sale.*'' 
 
 clear, the inconvenience of naming every party in interest ("as nearly 
 as may be practicable" — whatever this may mean) should be suffi- 
 cient to condemn the provision as unwise. In creditors' suits, and 
 in administration proceedings in chancery, there are frequently con- 
 vened scores of persons interested in the res (individual or corporate), 
 all with liens, and the conveyance or conveyances required to con- 
 summate the sale or sales ordered, are necessarily made "on behalf 
 of" every such claimant in the suit, in addition to the party or 
 parties actually holding the legal title. A still more vital question 
 is, the effect of the omission of one or more names (where their in- 
 sertion is 'practicable'), on the passage of title. The author has in 
 mind a recent partition suit to which there are sixty or more par- 
 ties. This criticism suggests that the Code provision be restored, 
 or that the amendment otherwise receive, the intelligent attention of 
 the legislature. 
 
 " Fall V. Eastin, 215 U. S. 1; extensive annotation (indicating some 
 dissent) 69 L,. R. A. 673; Lile, Notes on Eq. Jurisp. (ed. 1921) p. .S3. 
 
 " Lloyd V. Erwin, 29 Graft. 598; Tyler v. Toms, 75 Va. 116; Lee 
 V. Swepson, 76 Va. 173. 
 
 " Va. Code 1919, § 6369. 
 
 " Whitehead v. Bradley, 87 Va. 676. 
 
158 Equity Pi<eading and Practice 
 
 § 313. Loss of funds in hands of the court. — Where 
 the purchaser has properly paid over funds to the duly author- 
 ized representative of the court (master or receiver), and the 
 fund is lost by the defalcation of the official custodian, the loss 
 falls, not on the purchaser, but on the persons entitled to the 
 funds. 3* 
 
 § 314. Statutory protection of purchasers on reversal 
 of decree. — In Virginia ^^ there is a valuable statutory provi- 
 sion for protection of purchasers at judicial sales. This statute 
 provides that "if a sale of property be made under a decree or 
 order of a court, and such sale be confirmed, the title of the pur- 
 chaser at such sale shall not be disturbed, unless w^ithin twelve 
 months from such confirmation, the sale be set aside by the 
 trial court, or an appeal be allowed by the Supreme Court of 
 Appeals, and an order or decree be therein afterwards entered 
 requiring such sale to be set aside; but there may be restitution 
 of the proceeds to those entitled." 
 
 "^ Pulliam V. Thompkins, 99 Va. 603, 39 S. E. 321. See Gill v. 
 Barbour, 80 Va. 11; Patterson v. Crawford, 97 Va. 661; 5 Va. Law 
 Reg. 630, 728, 805 — on the question how such loss is borne as among 
 creditors with different degrees of priority. 
 
 *" Va. Code 1919, § 6306. This section is a substitute for § 3435 
 of the Code of 1887, which declared that if the sale were made six 
 months after the decree, and was confirmed, no subsequent reversal 
 of the decree should affect the title of the purchaser. The statute was 
 held inapplicable where the decree was void on jurisdictional 
 grounds. Brenham v. Smith, 102 Va. 30. The revised statute is a 
 marked improvement on the original. The advantages are pointed 
 out in the revisor's notes to § 6306. The (principle of Brenham v. 
 Smith, supra, however, seems necessarily inherent in the amended 
 section, as, indeed, properly it should be. 
 
Enforcement ok Decrees 159 
 
 CHAPTER XXII. 
 
 Enforcement of Decrees. 
 
 § 315. Enforcement of decrees. — There are several 
 methods by which the decrees of a chancery court may be en- 
 forced — among the more important of which are (1) Writ of 
 Assistance; (2) Writ of Attachment; (3) Writ of Sequestra- 
 tion; (4) Writ of Execution; (5) Order of Sale; (6) Perform- 
 ance by Proxy; (7) A New Original Bill in. Equity. 
 
 § 316. (1) Writ of Assistance. — Where the decree di- 
 rects the transfer of possession of specific property, real or 
 personal, temporarily or permanently, a writ of assistance may 
 be authorized by the court, directing the sheriff, or other min- 
 isterial officer of the court, to place the designated person in 
 possession. 
 
 In the execution of the writ, the officer has all the power, 
 and may exercise all the force, that he possesses and might ex- 
 ercise under an ordinary execution.^ 
 
 § 317. (2) Writ of Attachment — process of con- 
 tempt. — This writ, like that mentioned in the preceding section, 
 is grantable only by the court. But, unlike the writ of assist- 
 ance, it is directed against the person of the recalcitrant. It is 
 in substance an order to the sheriff to attach the person of the 
 offending party, and to produce his body before the court at a 
 time named in the writ, to show cause why he shall not be pun- 
 of the court. 2 
 
 ' Fletcher, Eq. PL & Pr. 736; Shipman, Eq. PI. 161; Equity Rules 
 7-9, 11 (rule 9 permitting the clerk to issue). The writ is often re- 
 sorted to in order to place the purchaser at a judicial sale in posses- 
 sion of the property purchased — and to enforce orders directing a 
 receiver of the court to take possession of property in litigation, 
 ised for contempt in refusing or neglecting to obey the decree 
 
 ' Shipman, Eq. PI. 159; Fletcher, Eq. PI. & Pr. 733; Foster, Fed. 
 Pr. 339-349a; Equity Rules 7-8; Va. Code, §§ 6309, 4531-4524; Va. 
 Const. §§ 63, 15.6. For a general discussion of contempt proceedings, 
 see 9 Cyc. 1; 7 Am. & Eng. Enc. L. 25; 5 Va. Law Reg. 49, 381, 345, 
 392, 833; Carter's Case, 96 Va. 791; Yoder's Case, 107 Va. 823; Gom- 
 pers V. Buck Stove, etc., Co., 331 U. S. 418, 34 L. R. A. (N. S.) 874, 
 note. 
 
160 Equity Pleading and Practice 
 
 The rigor of this proceeding is often mitigated by the issue 
 of a mere rule (without attachment, or arrest,) against the per- 
 son alleged to be in contempt, to appear and show cause why an 
 attachment shall not issue. 
 
 § 318. (3) Writ of sequestration. — This is a proceeding 
 by means of which the property of a recalcitrant party is seized 
 ("sequestered"), under order of the court, by the officer of the 
 court, or by persons specially designated for the purpose ("se- 
 questrators"), with the object of retaining the corpus, and the 
 rents, issues and profits, until the obstinate owner obeys the order 
 of the court. 
 
 Its use is comparatively rare in modern times, since courts of 
 equity have assumed (generally by virtue of statutes) to issue 
 executions similar to those of the common law courts. The 
 writ is still useful, however, where the decree directs the per- 
 formance of some act other than the payment of money or the 
 delivery of property within the jurisdiction * — as where the de- 
 fendant places himself or the subject-matter beyond the process 
 of the court, but has other property within the jurisdiction, or 
 is a corporation and therefore not subject to attachment or im- 
 prisonment under contempt proceedings.* 
 
 § 319. (4) Writ of execution— fieri facias.— Writs of 
 execution in equity are substantially the same as executions is- 
 sued from courts of law, and are so declared by the Virginia 
 Code.5 
 
 Thus where the plaintiff has secured a personal decree against 
 the defendant for the payment of money, the former may sue 
 out of the clerk's office a writ of fieri facias, requiring the sher- 
 iff to levy on the defendant's tangible chattels (and in some of 
 the states real property, as well), and to sell the same for the 
 satisfaction of the decree. 
 
 ' The payment of money, or delivery of property located within 
 the jurisdiction may generally be enforced by execution or writ of 
 assistance, as already explained. 
 
 ' Fletcher, Eq. PI. & Pr. 735. Specific provision is made for the 
 writ in the Federal courts by Equity Rules 7-8. See' Foster, Fed. Pr. 
 339-349a, 
 
 ° Va. Code 1919, § 6459; Fletcher, Eq. PI. and Pr. 734. 
 
Enforcement of Di-xriiics 161 
 
 § 320. (5) Order of sale. — The jurisdiction to subject 
 property by a sale thereof, in the foreclosure of mortgages and 
 the enforcement of other liens or specific charges thereon, has 
 been long established, and is one of the most common and useful 
 forms in which the equity jurisdiction is exercised.^ 
 
 § 320a. (6) Performance by proxy — master's deeds. 
 
 — It has already been pointed out in a previous chapter '^ that 
 courts of equity possess the jurisdiction, wherever the occasion 
 arises, to convey title to property, when properly brought within 
 its control, through the medium of a master specially appointed 
 for the purpose, without the active participation of the party or 
 parties in whom is the legal title, or who may be otherwise in- 
 terested therein. 
 
 § 321. (7) Original bill to enforce, rescind, or inter- 
 pret decree. — It sometimes happens that after the original suit 
 has been completely ended, without leave to reinstate, so that no 
 further proceedings may be had in that suit — and after the lapse 
 of the grace allowed for filing a bill of review, or for an appeal 
 — or the situation is one not thus relievable — new situations de- 
 velop, calling for the intervention of the court. 
 
 Where, for instance, by the occurrence of subsequent events, 
 the enforcement of the decree has become inequitable; or dis- 
 pute has arisen as to its correct interpretation, or controversy as 
 to whether defendant has or has not properly performed; or 
 where, by neglect of the parties or otherwise, their rights have 
 become embarrassed or uncertain ; or, in any case, where mani- 
 festly the intervention of the court has become essential to the 
 securing of complete justice to the parties — a bill in the nature 
 of an original bill may be filed for such relief as equity and good 
 conscience may demand.''" 
 
 § 322. The same — right of defendant to contest for- 
 mer decree. — Of course on such a bill there can be -no review 
 or re-trial of the original cause, all the issues in which have be- 
 come res judicata — but the reHef will be confined to fixing and 
 
 " Ch. xxi. See post, Creditors' Suits, ch. xxxi. 
 ' Supra, ch. xx, §§ 309-310. 
 '» Supra, § 388. 
 
162 Equitv Pleading and Practice 
 
 enforcing the rights of the parties under the former decree.^ 
 
 It seems, however, that the defendant in the new bill may set 
 up fraud, mistake or other lack of equity in the decree sought 
 to be afTected, and thus invoke the protection of the maxim that 
 "he who wants equity must do equity;" and the plaintiff in the 
 new bill may then be put on terms of doing equity as the price 
 of the court's assistance.^ 
 
 " Story, Eq. PI. 429; Fletcher, Eq. PI. & Pr. 'JoS; .M itford, Eq. 
 PI, 05; Root V. Woolworth, 150 U. S. 401. 
 
 " Story, Eq. PI. 641; 2 Daniell, Ch. Pr. (6tli ed.) 1586; VVadhams 
 V. Gay, 73 111. 415; Gay v. Parpart, 106 U. ,S. 679; Lawrence Mfg. Co. 
 V. Jauesville Cotton Mills, 138 U." S. 552; Hamilton v. Houghton, 2 
 Bligh (H. of L.) 169. "I do not understand the rule to be that this 
 court is bound to carry into execution an erroneous decree. On the 
 contrary, I apprehend that when a person comes into this court ask- 
 ing for the benefit of a former decree, he must be prepared to show, 
 if the cases requires it, that such decree was right." Ld. Chancellor 
 of Ireland, in O'Connell r. McNamara. 3 Dr. & War. 411. 
 
Vacation Proceedings 163 
 
 CHAPTER XXIII. 
 Miscellaneous Proceedings. 
 
 1. PROCliEDINGS IN VACATION. 
 
 § 323. Vacation proceedings. — By reason of the peculiar 
 remedies in equity — and especially preventive and administrative 
 remedies — courts of chancery, as the result of statute, rules of 
 court or inherent power, exercise a more extensive jurisdiction 
 in vacation than courts of law. 
 
 § 324. The same — in the Federal courts. — The district 
 courts of the United States, as courts of equity, are deemed al- 
 ways open for the purpose of filing pleadings, issuing and re- 
 turning mesne and linal process, and for interlocutoiy proceed- 
 ings preparatory to the hearing of causes on their merits. And 
 the judges are given power, as well in vacation as in term, on 
 reasonable notice, to make and direct all such interlocutory or- 
 ders, etc., preparatory to the hearing of causes on their merits. ^ 
 
 § 32 5. The same^n Virginia. — By statute in Virginia, 
 the chancellor may exercise, among others, the following powers 
 in vacation : 
 
 (a) To grant temporary injunctions,^ and, as ancillary there- 
 to, to appoint receivers.* 
 
 (b) To dissolve temporary injunctions, and, as ancillary 
 thereto, to discharge receivers* 
 
 (c) "Judges of courts exercising chancery jurisdiction shall 
 have the same jurisdictional powers over chaucer\ causes in va- 
 cation, as is conferred upon such courts in term; but such ju- 
 risdiction shall not be exercised except after ten days' notice to 
 all parties to be affected thereby, or their counsel." ^ 
 
 ' Equity Rules ]-6. 
 
 ' Va. Code 1919, § 6326; post, chs. xxvii, xxxii. 
 
 ' Post, ch. xxxii. 
 
 ' Va. Code 1919, § 6326; post, chs. xxvii, xxxii. 
 
 ° Id. § 6307. 
 
164 Equity Pleading and Practice 
 
 (d) Chancery causes subfnitted in term may be decided in va- 
 cation without such notice ; nor need notice be given to a defend- 
 ant summoned by pubHcation, and who has not appeared. 
 
 Decrees so entered are declared as vaHd as if made in term ; 
 but where they constitute a hen, the Hen is effective only from 
 the time of day when the decree is received by the clerk for 
 recordation." 
 
 (e) By process of contempt to "punish disobedience of, and 
 compel obedience to, any decree or order made in a cause in his 
 court." '' 
 
 2. Stipui,ations and Consent Proceedings.* 
 
 § 326. Nature and purpose. — For dispatch of business 
 and to save expense and inconvenience to parties and counsel, 
 certain of the formalities of procedure are frequently waived by 
 stipulation between the respective counsel. Such stipulations, 
 when proper, are favorably regarded by the courts. 
 
 Thus it is not unusual for counsel to agree to a continuance 
 of the cause — to consent to a hearing of the cause, or some part 
 thereof, before the court or a master, on a designated day, or 
 in vacation — to waive formal notice of the taking of depositions 
 — to the admission of the genuineness of certain documents, or 
 the truth of certain allegations of fact without proof — to the 
 filing, withdrawal, or amendment of pleadings — to the extension 
 of time to the adversary for the taking of certain steps in the 
 cause — to the waiver of informalities or irregularities — and gen- 
 erally to waive rules of practice or procedure not affecting the 
 substantial merits of the cause. 
 
 While counsel have implied authority thus to waive matters of 
 practice and procedure, they may not without express sanction 
 waive the substantial rights of the client. 
 
 § 327. The same — form — stipulations in pais — in 
 court. — To prevent unseemly controversies between counsel as 
 to the precise scope and meaning of stipulations into which they 
 have entered, all important agreements of this character should 
 
 " Id. 
 
 ' Id. § 6309; Sec Contempts, ante, ch. xxii. 
 
 ' Fletcher, Equity PI. & Pr. 447-4.U; Thompson on Trials, 193-302. 
 
Continuances in Federal Courts 165 
 
 be reduced to writing, or if made in court should he entered of 
 record. 
 
 In many jurisdictions, in order that such stipulations may be 
 recognized and enforced by the court in spite of their repudia- 
 tion by one of the parties thereto, statutes or rules of court re- 
 quire that they shall be in writing, or else entered of record.* 
 
 It is needless to add that all such stipulations, whether oral 
 or written, should be regarded by counsel as of highly honorary 
 obligation, and when fairly entered into should be scrupulously 
 observed. Nothing detracts more from the standing of counsel 
 at the bar than the reputation among his professional brethren 
 of denying or evading agreements thus made. 
 
 3. PROVISION EOR Speedy Trials in Federal Courts. 
 
 § 328. Cojitinuances in the Federal" courts. — To pre- 
 vent the delays traditionally incident to equity proceedings, the 
 new Equity Rules have prescribed stringent regulations to speed 
 the trial of equity causes. One striking provision seeks to eradi- 
 cate the former evil of indefinite continuances by consent of par- 
 ties, or generally at the request of either party. 
 
 The rule i" provides that a cause when placed on the trial 
 calendar shall not be continued beyond the term, save in excep- 
 tional cases, and except on order of the court and for good cause 
 shown by affidavit, on such terms as the court may impose. 
 
 Such continuance beyond the term by consent of parties, may 
 be allowed "on condition only that a stipulation be signed by 
 counsel for all the parties and that all costs incuri"ed theretofore 
 be paid. Thereupon an order shall be entered dropping the 
 cause from the trial calendar, subject to reinstatement within 
 one year upon application to the court by either party, in which 
 event it shall be heard at the earliest convenient day. If not so 
 reinstated within the year, the suit shall be dismissed without 
 prejudice to a new one." 
 
 '■' Smith V. Smith, 119 N. C. 311, 35 S. E. 877; Morse t. State, 39 
 Tex. Cr. R. 566, 50 S. W. 342; Caldwell v. McWilliams, 65 Ga. 99; 
 Citizens Bank of Wichita v. Farwell, 56 Fed. 570. 
 
 " Equity Rule 57. 
 
166 Equity Pi,eadii\g and Practice 
 
 CHAPTER XXIV. 
 
 Multifariousness. 
 
 § 329. Multifariousness — definition. — Multifariousness 
 in equity pleading means the improper joinder of several causes 
 of action in the same suit — each capable of enforcement in sepa- 
 rate proceedings. It is the correlative of "misjoinder" in courts 
 of law, where counts in debt may not be joined with counts in 
 assumpsit, nor counts in trover with those in covenant; nor, at 
 law, may there be plaintiffs with separate interests, nor defend- 
 ants not jointly liable. 
 
 § 330. The salne — policy of equity. — It is the policy of 
 courts of equity to prevent a multiplicity of suits, and, so far as 
 this can conveniently be accomplished, to settle, in a single suit, 
 all controversies which, in their last analysis, affect a single sub- 
 ject matter. Thus, where the purpose of the bill is to clear the 
 title to real property, or completely to dispose of a particular 
 res, real or personal, the bill will ordinarily not be condemned 
 for multifariousness though various conflicting interests may ap- 
 pear, and though every party defendant may not be interested in 
 each of the numerous collateral controversies whose ■ settlement 
 the bill invokes.^ 
 
 § 331. Multifariousness — several kinds. — Several as- 
 pects of this serious fault in equity pleading are encountered in 
 practice: (1) the joinder of two or more independent claims by 
 the same plaintiff against the same defendant; (2) the joinder 
 of independent claims by several plaintiffs, each asserting sepa- 
 rate claims against one or more defendants, whether the latter 
 be jointly concerned or not; or conversely, (3) the joinder of 
 two or more distinct claims by the plaintiff against several de- 
 fendants, all the defendants not being interested in aU the claims 
 asserted. 
 
 § 332. The same — the first class. — As shown in the pre- 
 
 ' See Matney v. Yates, 121 Va. 506; .\ppalacliia v. Mainous, 121 Va. 
 666. 
 
Multifariousness 167 
 
 ceding section, multifariousness of the first class occurs where 
 two or more distinct and independent causes of action — each in 
 itself sufficient for the jurisdiction of the court — are asserted by 
 the plaintiff against a defendant or defendants, where every de- 
 fendant is interested in all the claims asserted in the bill. 
 
 An illustration of a bill of this character would be a suit by 
 A against B, C and D, for specific performance of a contract be- 
 tween the plaintiffs and the three defendants for the sale of 
 Blackacre, and also for the partition of Whiteacre belonging to 
 the four parties. 
 
 § 333. The same — effect. — It is quite clear that where the 
 several claims asserted by the same plaintiff, in the same bill, 
 arise out of the same transaction^ no valid objection can be made 
 on the ground of multifariousness.- Indeed, in such case, it is 
 the plaintiff's duty to unite all such claims in the same suit.^ 
 
 Even where the several equities asserted do not arise out of 
 the same transaction, and are zvholly independent of each other, 
 as illustrated in the preceding section, it does not necessarily fol- 
 low that the court will treat the bill as multifarious. The fault 
 here is not so serious as the other forms of multifariousness ; and 
 the question whether or not such a bill will be sustained will de- 
 pend largely on the circumstances of each case. If it seems to 
 the court that both equities can conveniently be administered in 
 a single suit, the Court may, in its discretion, overrule the ob- 
 jection and permit the bill to stand.* 
 
 The consideration that courts of law are liberal in permitting 
 innumerable claims, of the same general nature, and all against 
 the same defendant or defendants, to be asserted under the 
 guise of separate counts in a single declaration, suggests equal 
 or greater liberality in courts of equity, wherever the several 
 claims may be heard together, without inconvenience to the par- 
 ties. 
 
 " Pack I'. Whitaker, 110 Va. 13:2. 
 
 " Zetelle v. Myers, 19 Gratt. 62. 
 
 * See Story, Bq. PI. 371 (n), 278 (n.), 280; 1 Daniell, Ch. Pr. 335; 
 5 Va. Law Reg. 840. In Seefried v. Clarke, 113 Va. 365, a bill to set 
 aside a conveyance for fraud and for partition of the property in- 
 • volved was sustained. Such practice is expressly authorized by Eq- 
 uity Rule 26. 
 
168 Equity Pi^ijading and Practice 
 
 § 334. The same — second class — distinct plaintiffs 
 asserting distinct claims. — A more serious phase of multi- 
 fariousness occurs where two separate and distinct claims are 
 asserted, not by the same plaintiff, or plaintiffs in joint interest, 
 as in the preceding section, but by plaintiffs whose interests are 
 separate and distinct, and whether against the same or differ«nt 
 defendants. Thus, where A sues C for specific performance of 
 a contract to convey Blackacre, and B unites as plaintiff in the 
 same bill, seeking specific performance of a separate contract 
 with C for the conveyance of Whiteacre, the bill is clearly and 
 hopelessly multifarious.^ 
 
 § 335. The same — third class — distinct and unrelated 
 claims against several distinct defendants. — A third and 
 equally hopeless form of multifariousness, closely akin to that 
 just noticed, occurs where several distinct and disconnected 
 claims (whether by one or several plaintiffs) are asserted 
 against several defendants, but all the defendants are not inter- 
 ested in all the matters litigated. As a rule, this will not be per- 
 mitted ; and on demurrer the court will dismiss the bill.^ Cred- 
 itors' bills and administration suits, as we shall see, are notable 
 exceptions (but more apparent than real) to this rule — the rea- 
 son being that the purpose of such suits is to make a complete 
 disposition of a fund or estate, and this can only be done in a 
 single suit. 
 
 § 336. The same — joinder of valid with invalid cause 
 of action. — It is important, however, to observe that where one 
 of the causes of action alleged cannot be maintained, (as, for 
 example, for lack of jurisdiction, or for lack of equity), the at- 
 tempt to connect it with the other cause of action will not render 
 the bill multifarious ; but -the former will be regarded as mere 
 surplusage. In short, in order to render a bill multifarious there 
 must be two complete, independent causes of action asserted — 
 the maxim being utile per inutile non vitiatnrJ 
 
 This form of multifariousness is condemned by Equity Rule 36. 
 
 This is likewise condemned by Equity Rule 26. 
 
 Matney v. Yates, 12] Va. .507; Appalachia f. iMainous, id. 666. 
 
J\[ULTIFARIOUSNESS 169 
 
 § 337. The same— general observations. — While these 
 general rules are comparatively simple of statement, the courts 
 have much difficulty in applying them, and it is common to find 
 it stated judicially that a determination of the question whether 
 a bill is multifarious or not, depends largely upon the peculiari- 
 ties of each case, and the enlightened discretion of the court. ^ 
 
 An illustration of a multifarious bill is presented in the case 
 cited in the footnote.® In that case J, A and W had been part- 
 ners; W withdrew, and a new partnership was formed between 
 J and A, which was later dissolved. J then filed a bill against 
 both of his former partners, A and W, for a settlement of the 
 accounts of both partnerships. It was properly held, tha:t, inas- 
 much as W, who first withdrew, had no interest in the settle- 
 ment of the accounts of the second pai-tnership between J and 
 A, it was improper that he should be united in the suit, and hence 
 that the bill was multifarious. 
 
 § 338. Multifariousness continued — ^how objection 
 made — effect. — Since the objection of multifariousness must 
 necessarily appear on the face of the bill, the proper method of 
 making the objection is, of course, by demurrer. If held to be 
 multifarious, the mispleading is fatal, and the bill will be dis- 
 missed. i° 
 
 ' See Brown v. Bedford, etc., Co., 91 Va. 31; Spooner v. Hilbish, 
 92 Va. 333; School Board v. Parish, 92 Va. 156; Saunders v. Bank, 
 113 Va. 656; Matney v. Yates, 121 Va. 506. 
 
 ' Dunn T. Dunn, 26 Gratt. 291. 
 
 " Dennis v. Justus, 115 Va. 512, 515 — ex inero niotu — per Keith, P. 
 
170 Equity Pi^eading and Practice 
 
 CHAPTER XXV 
 Consolidation of Causes. 
 
 § 339. Consolidation. — Where several suits are pending in 
 the same court, by the same plaintiff, or, in proper case, by in- 
 dependent plaintiffs, against substantially the same defendants, 
 and involving substantially the same subject-matter, it is often 
 convenient and economical to have an order consolidating the 
 several causes, and thereafter proceeding with them as a single 
 suit. 
 
 § 340. "Consolidation" — "hearing together" — distinc- 
 tion. — ^The terms consolidation, and hearing together, are not in- 
 frequently confused, and used as if they denoted the same thing. 
 They are, however,' distinct. Whenever causes are consolidated 
 they are necessarily heard together, but "hearing together" does 
 not necessarily imply "consolidation." It frequently happens, 
 however, as appears from the reported cases, that an order of 
 consolidation is treated throughout by counsel and court as a 
 7nere order to hear together — in other words, that the former 
 term has not been used in its technical sense. It is in the latter 
 sense that we shall use it in this brief study. 
 
 § 341. "Consolidation" — general effect. i — Where sev- 
 eral causes are technically consolidated they become in effect a 
 single suit, at least in so far as the circumstances of the several 
 causes permit complete unity. The evidence in one becomes evi- 
 dence in the other (subject of course to the control of the court 
 to prevent injustice) ; the parties to one become parties to the 
 other ;2 and the cause proceeds for all purposes as if the several 
 causes had been originally asserted in a single bill. It must be 
 observed, however, that it is the proceedings that are consolidated 
 and not the claims asserted, sa\'e where the latter belong to the 
 same plaintiff.-'' 
 
 ' As to the effect on the appellate jurisdiction, see infra, this chapter. 
 ° Patterson v. Eakin, S7 Va. 49 — noticed at length, Infra, § 347 n. 
 'See I-lOTTie Building Co. r. London, 98 Va. 52. 
 
Consolidation oi" Causes 171 
 
 § 342. "Hearing together"— effect.— On the other hand, 
 where there is a mere order of hearing together, unmodified, the 
 suits remain as several as before, the only effect being that for 
 convenience and economy the several steps toward a final dis- 
 position of the several causes are taken at the same time, and 
 usually in the same decree. The parties to one are not neces- 
 sarily parties to the other, and the evidence in one is not neces- 
 sarily evidence in the other. 
 
 These results may be, of course, and often are, enlarged more 
 or less by express stipulation, or by conduct or acquiescence of 
 the parties, or by the action of the court, ^^'here such departure 
 from the type occurs, the situation will present some, or all, of 
 the features of a technical consolidation. 
 
 § 343. Consolidation — confusion in the authorities. — 
 
 There has been a most unfortunate situation produced in Vir- 
 ginia by the apparently conflicting views expressed from time to 
 time by our Court of Appeals in this connection — a confusion 
 due largely to dicta originating in Claiborne v. Gross,^ in which 
 one of the judges suggested that consolidation of causes, with- 
 out consent of parties, was beyond the powers of a court of eq- 
 uity, and consequently unknown in the equity practice — a doubt 
 more than once repeated in later cases. In a somewhat careful 
 search, not a single Virginia case has been discovered in which 
 there is a direct decision ori the propriety of consolidating causes 
 in equity. In all of the Virginia cases in which the question has 
 appeared, however, it has been assumed that the effect of con- 
 solidation was to convert the several suits into one suit for all 
 purposes — and in each of them the absence of this assumption 
 would have eliminated the necessity of considering the question 
 of the propriety of the consolidation. 
 
 The still unsettled condition of the Virginia authorities on the 
 primary question of the propriety of consolidating equity causes, 
 seems to justify the somewhat extended notice of the Virginia 
 authorities in the sections that follow. 
 
 * 7 Leigh 331. 
 
172 Equity Pleading and Practice 
 
 Outside of Virginia there are comparatively few authorities 
 denying or doubting the power of courts of equity to order the 
 consolidation of causes under proper circumstances discussed be- 
 low, though in many jurisdictions the term seems to be used as 
 connoting a mere hearing together.^ 
 
 § 344. Consolidation — without consent of parties. — 
 
 Since ex vi termini technical consolidation connotes the com- 
 plete conversion of several suits into one suit, it follows that 
 where the several claims could not originally have been asserted 
 in a single suit, they may not, when separately asserted, be subse- 
 quently united by consolidation, except by consent. If the 
 joinder of the several claims in a single original bill would have 
 rendered the bill multifarious, their subsequent joinder by con- 
 solidation would present the same vice. 
 
 The evil of multifariousness rests not alone in the inconven- 
 ience to the court of hearing dissimilar claims, asserted by dif- 
 ferent parties, but in the ivrong done to litigants in compelling 
 them to become parties to a litigation in one or more branches 
 of which they have no interest.^ 
 
 § 345. The same — by consent. — But as the objection of 
 multifariousness is not jurisdictional, and hence, under sanction 
 of the court, may be waived by the parties, there would seem,, 
 on principle, to be no difficulty presented where the consolidation 
 is hy consent or acquiescence of all -parties — a proposition ap- 
 parently conceded by all the authorities. 
 
 § 346. The same — several suits between the same 
 parties. — So where the several suits are between the same par- 
 ties, concerning substantially the same subject-matter '' — as where 
 
 '" The authorities from other jurisdictions, are collected in 8 Cyc. 
 589, 592, '608. See also, Fletcher, Eq. PI. & ,Pr, 455; iRev. Stat. U. 
 S., § 931; Toledo, etc., R. Co. v. Continental Trust Co., 95 Fed. 497; 
 Beach v. Woodyard, 5 W. Va. 321; Wyatt v. Thompson, 10 W. Va. 
 645; Burnham v. Bailing, 16 N. J. Eq. 310; O'Bannon t'. Roberts, 2 
 Dana (Ky.) 54; Bowles v. Schoenberger, 2 B. Mon. (Ky.) 372. The 
 praptice in Tennessee seems to be practically to compel tlie parties 
 to consent, where the court thinks a consolidation proper, by taxing 
 the extra costs against the party refusing. Gibson, Suits in Chancery 
 §§ 754-755. 
 
 ° See Multifariousness, ante, ch. xxiv. 
 
 ' In such case there may be consolidation even at lazv. McRae v. 
 Board, 3 Rand. 481. 
 
Consolidation of Causils 173 
 
 the plaintiff has instituted several creditors' suits against the 
 same defendant. Here all the claims might have been, and 
 therefore more regularly should have been, originally ^asserted in 
 a single suit ; and consolidation is but a more convenient and 
 more economical method of converting what are in fact but sev- 
 eral branches of a single suit, into one suit. 
 
 § 347. The same — different plaintiffs who might have 
 united in a single suit. — Here again, on like considerations, 
 there is no sound reason why the several suits may not be con- 
 solidated :, and it is in this class of cases that consolidation is 
 most common in practice — as in the case of several creditors' 
 bills, or bills by legatees, shareholders, tax-payers and others 
 representing members of a class similarly situated.* In such 
 
 ' See Creditors' Bills, post, ch. xxxi. In Claiborne v. Gross, 7 
 Leigh 331, two separate creditors' bills by different plaintiffs against 
 the same defendant were consolidated, without consent, by order of the 
 trial court — one case involving an amount that made it appealable, while 
 in the other the amount was below the required minimum. The con- 
 solidated suit was dismissed, and plaintiffs appealed. Opinions were 
 delivered by two of the three judges participating in the decision — 
 both discussing, with some elaboration, the power of the court to 
 direct a consolidation without consent. Carr, J. (Brockenbrough, J., 
 concurring) denied the power in any case, without consent, vyith 
 Tucker, P., arguing contra. Both admitted, however, that the ques- 
 tion was immaterial, since, in spite of the order of consolidation, the 
 lower court in its decree had treated the causes as separate, and there 
 had been separate petitions for appeal. All agreed in dismissing the 
 appeal as to that one of the causes in which the amount involved was not 
 within the jurisdictional minimum. Hence the entire discussion of 
 the propriety of the consolidation was extra-judicial. This becomes 
 the more apparent in the light of subsequent decisions establishing the 
 principle that even where the several plaintiffs assert their claims in 
 the same bill, each claim on 'appeal must im'olve the ^jurisdictional amount. 
 White V. Building Fund Association, 96 Va. 270. 
 
 In Barger y. Buckland, 28 Gratt. '850, three creditors' bills, by dif- 
 ferent plaintiffs against the same defendant, were consolidated, ap- 
 parently without express consent of all parties. No process had 
 been served on the defendant in one of the cases, but he appeared 
 and made defense to the entire cause as consolidated, without ob- 
 jection. Here again the court expresses a doubt (citing the dictum 
 in Claiborne v. Gross, supra), whether (the court might properly con- 
 solidate the causes without consent of parties, but concludes that by 
 appearing and defending without objection, the defendant had waived 
 the objection. The discussion of the question of the power to con- 
 solidate was therefore an obvious dictum. See an equally obvious 
 didum in Patterson v. Eakin, 87.iVa. 49, overruling, so far as one 
 dictum may overrule another, the obiter expressions noticed above. 
 This case is again noticed in the footnote to the section following. 
 
17-I- Equity Pleading and Practice 
 
 cases not only may the court direct a consolidation, but, as 
 shown in a later chapter on creditors' bills," the assumption of 
 jurisdiction in one of the suits (as by an order of reference), 
 demands either a consolidation or its equivalent, namely, a sus- 
 pension of all the other suits, and a convention of all the credi- 
 tors in the suit ripened by the order of reference. The consoli- 
 dation, therefore, is but another method of securing the neces- 
 sary convention of all parties in the single ripened suit.i" 
 
 § 348. The same — claims which could not have been 
 united in a single suit. — On the contrary, where the claims 
 asserted in the several suits are so diverse, either as to subject- 
 matter or parties, that to have asserted them in a single original 
 bill would have called for a dismissal of the bill on demurrer for 
 multifariousness , it seems clear that it would be error to direct 
 a consolidation^ without consent of parties. If, as already 
 shown, the effect of consolidation is to convert the several inde- 
 pendent suits into a single suit, as fully and effectually as if all 
 the claims had been asserted in a single original bill, then mani- 
 festly the question of the propriety of such joinder is the same 
 in the one case as in the other. If it be error and an injustice 
 to force an objecting party into a litigation multifarious in its in- 
 ception, it is equally erroneous and unjust to compel him against 
 his will to litigate his rights in a proceeding which has become 
 multifarious by subsequent consolidation. If the proceeding be 
 in fact multifarious, the cpestion of how the multifariousness 
 was produced, or when, is immaterial. The injustice to the pro- 
 testing party is as obvious, and as serious, in the one case as in 
 the other. ^1 
 
 ' Post, ch. xxxi. 
 
 " In Barger v. Buckland, supra, the consolidation oi several cred- 
 itors' bills, by diflferent plaintiffs, was held proper when acquiesced 
 in by 'the parties, though the court was not quite clear (citing the 
 dictum in Claiborne v. Gross, supra) whether consolidation, or whether 
 an order for "hearing together", were the proper procedure. 
 
 " See Multifariousness, ante, ch. xxiv. Wyatt v. Thompson, 10 W. 
 Va. 645. 'Such a case was indirectly presented in Smith v. 'Pyrites 
 Mining Co., 101 Va. 301, where what was termed a "supplemental 
 bill" was dismissed by the lower court, and an appeal taken more than 
 twelve months afterwards. On motion to dismiss the appeal as 
 barred by limitation, the question involved was whether the decree of 
 dismissal below was a iinal decree. Neither the parties to the sup- 
 plemental bill nor its purposes were the same as in the original bill. 
 
Consolidation of Causics 175 
 
 § 349. Efifect of consolidation on the appellate juris - 
 tion — (1) Same plaintiff in each case. — Where all the 
 claims asserted in the several suits are by the same plaintiff, or 
 by the same plaintiffs jointly, though each- severally is less than 
 the jurisdictional amount required for an appeal, yet if in the 
 
 The court held the appeal barred, and took occasion to say that be- 
 cause the parties and objects were not the same, even treating the 
 new bill as an original bill, the two causes could not have been con- 
 solidated, but might have been heard together. ' But the point was not 
 involved in the decision. 
 
 At 'first glance, the case of iPatterson v. Eakin, 87 Va. 49, seems at 
 last to afford authority on the lines of our present inquiry, but, as 
 in apparently all the other IVirginia cases in which the .subject of 
 consolidation is discussed, the question was not involved, and the 
 discussion obiter. In that case there Iwere two suits by different plain- 
 tiffs, but both involving the administration of the estate of the same 
 testator — one by a creditor seeking enforcement of a vendor's lien on 
 a single parcel of real estate, and the other by devisees for a sale of 
 other real estate of Ithe testator for payment of a single remaining 
 debt, and a reinvestment of the residue. After various proceedings 
 in each, including a sale to satisfy the vendor's lien, 'the two suits 
 were consolidated, apparently without consent. Subsequently a sale 
 of the property last mentioned, made under order of the court, to one 
 Patterson, was confirmed in vacation, without notice to one Figgatt, 
 who had in the meanwhile become assignee of both debts, as well as 
 assignee from the purchaser of the parcel affected by the vendor's 
 lien. The two judicial sales had produced an aggregate amount far in 
 excess of all the flebts, so that in fact Figgatt had not the slightest 
 concern with !the vacation order of confirmation. But his petition to 
 vacate the order of confirmation, because of lack of notice to him, 
 was sustained by the lower court, and Patterson, the purchaser, ap- 
 pealed. Instead of contenting itself with a declaration in the first 
 instance, that as Figgatt's debts were abundantly provided for, and 
 therefore no injury could result to him by the omission of notice 
 of the application for confirmation, the appellate court entered into 
 an extended discussion of the powers of courts of equity to consolidate 
 causes. It discarded doubts that had been expressed in the previous 
 cases noted above; declared that Figgatt, as assignee of the purchaser 
 in the first suit, thereby became a party to that suit, -and that on con- 
 solidatipn he thereupon became a party to the second suit as well; 
 and hence that he was entitled to notice of the application for a con- 
 firmation of the sale (involved 'in the second suit. Thus the court 
 seems to decide squarely that consolidation was a proper method of 
 procedure in the case at bar (as it probably was, since the two isuits 
 involved substantially the same subject-matter, and the objects sought 
 in both might well have been accomplished in a single suit), and that 
 the effect was a complete conversion of the two causes into one. But 
 after this exhaustive study of the propriety and effect of consolida- 
 tion, and a thorough vindication of the petitioner's right of notice, the 
 conclusion was announced that, after all, as iFiggatt could not pos- 
 sibly have suffered detriment from lack of notice, the lower court 
 committed error in granting his petition, based on absence of no- 
 tice — and 'hence the action of the lower court was for that reason re- 
 
l'^6 Equity Pi^kading and Practice 
 
 aggregate they are within the required amount, it seems clear 
 that on consolidation of the suits, the aggregate amount involved 
 would be the test of the plaintiff's right to appeal. 12 This is. 
 manifestly so in detefmining the right of the defendant to ap- 
 peal, even though the several claims are asserted by different 
 plaintiffs i^—since, as to the defendant, the aggregate of the 
 claims is the amount involved. 
 
 § 3 50. The same— (2) different plaintiffs.— But where 
 the claims are distinctly several, and are asserted by different 
 plaintiffs, though against the same defendant, the consolidation 
 can have no greater effect than if the several causes had been 
 asserted in the same bill.i'' And the same rule must be applica- 
 ble to both. That is, the combination of the several claims, 
 whether in a single original suit or ^3; consolidation, does not 
 alter the several and distinct nature of the claims, and therefore 
 adds nothing to their privileges of appeal. As already pointed 
 out, in such case it is not the claims that are consolidated, but the 
 
 versed. In other words, the question of consolidation and its effect 
 was immaterial. So that the case is not decisive authority for any 
 proposition connected with the subject of consolidation. 
 
 The question Svas again mooted in Merritt v. Johnson, 125 Va. 
 163, and though the court declared the consolidation in that case im- 
 proper, there was no necessity for passing upon the question, as the 
 error was held to be harmless. The opinion on the point was there- 
 fore obiter. 
 
 '^ In Devries v. Johnston, 27 'Gratt. 80, the precise question of 
 the effect of a consolidation of such causes was directly presented. 
 Here, three separate suits by the same plaintiffs (partners) against the 
 same defendants (also partners), each 'suit involving less than the 
 amount required for appellate jurisdiction, but aggregating more 
 than the required jurisdictional amount, were consolidated; and the 
 question was whether the consolidation had the effect of 'giving the 
 appellate court jurisdiction of the plaintiffs' appeal. Anderson, J., 
 who delivered the opinion, held that such was the effect — but un- 
 fortunately there were other questions jnvolved, and two of the four 
 judges sitting dissented, without assigning reasons, with the result 
 that the decree below was affirmed. The case, therefore, settled noth- 
 ing. But on principle Judge Anderson's ruling seems sound — since all 
 the claims were due to the appellants as partners, and might have 
 been united in one suit. And since, instead of dismissing the appeal 
 (as must have been done had the court been without jurisdiction), the 
 decree of the lower court was affirmed, the presumption is that the 
 dissenting judges concurred on the question of jurisdicticm. 
 
 " Infra, n. 15. f 
 
 " As in the case of bills by members of a class similarly situated, 
 discussed supra, § 347. 
 
CONSOUDATION OF CaUSES 177 
 
 proceedings merely ; and though there be a decree joint in form, 
 it is in its nature several, and must, for purpose of appeal by the 
 plaintiffs, be so regarded.!^ 
 
 § 351. Resume. — From the foregoing, we conclude that 
 equity causes may be consolidated only under the following cir- 
 cumstances : 
 
 1. By consent of parties; or 
 
 2. Where the several claims asserted, zvhether by the same 
 
 or by different plain-tiffs, might originally have been 
 asserted in a single suit. 
 
 "' Claiborne v. Gross, 7 Leigh 331 — (a case of consolidation, no- 
 ticed at length, supra, § 347, n. 8); Umbarger v. Watts, 25 Gratt. 167 
 (several creditors in the Isame bill) ; 'White v. Building Fund Asso- 
 ciation, 96 Va. 270 (another case of several creditors in the same bill). 
 Where the converse situation is presented, and the defendant, against 
 whom all the claims are asserted, becomes appellant, the aggregate of 
 all the claims asserted, whether in |a single or a consolidated suit, 
 fixes the amount involved for the purpose of appellate jurisdiction. 
 Craig V. Williams, 90 Va. 500 (a case 'of consolidation) ; Hicks v. 
 Roanoke, etc., Co., 94 Va. 741. 
 
 \ 
 
178 Equity Pleading and Practice 
 
 CHAPTER XXVI. 
 
 Special Instances of Suits for Relief. 
 
 § 352. Preliminary. — No attempt will be here made to 
 catalogue, even if this were possible, the various equitable 
 grounds on which suits in equity may be filed. 
 
 The student is presumed, from his studies of equity jurispru- 
 dence, to be familiar with the diversified field of rights and rem- 
 edies over which courts of equity exercise either exclusive or 
 concurrent jurisdictiQn. Nor need it be suggested that wherever 
 there is an ecjuitable right to be protected, or an equitable rem- 
 edy to be sought, the plaintifif may have access to the ear of the 
 court by a bill praying the desired relief — and (in an original 
 proceeding) by bill only. 
 
 § 353. The more common classes of suits. — Among the 
 more common classes of suits in equity may be mentioned : Suits 
 to foreclose or redeem a mortgage ; to enforce a vendor's or a 
 mechanic's or a judgment lien on real property; for specific per- 
 formance of a contract ; to establish and enforce a trust ; for the 
 construction of wills and trust instruments, and for advice to 
 fiduciaries ; for the settlement of fiduciary and other accounts ; 
 for the settlement of decedents' estates ; to set aside conveyances 
 fraudulent as between the parties, or as to creditors; for exon- 
 eration, contribution or marshalling ; for divorce and alimony ; 
 for sale of lands of persons under disabilities; for the assign- 
 ment of dower ; to set up lost instruments ; to correct mistakes ; 
 for injunctions; for partition; for relief from penalties and for- 
 feitures ; creditors' bills ; bills for discovery, etc. 
 
 § 354. Some of these more in detail. — A few of the 
 
 suits named have been selected for a more or less detailed study 
 of the proceedings, with special emphasis on related questions 
 of practice likely to make difficulty for the young practitioner — 
 namely : 
 /. Bills for Injunction. 
 
 II. Bills for Partition. 
 III. Bilis for Divorce. 
 IV Bills for Sale of Lands of Infants and Lunatics. 
 
 V Creditors' Bills. 
 
Injunctions — Venue 179 
 
 CHAPTER XXVII. 
 
 I. Injunction Suits. 
 
 § 355. Grounds of injunction. — The circumstances under 
 which relief by injunction will be granted, belong rather to the 
 topic of equity jurisprudence than to that of equity procedure. 
 The Virginia Code i enumerates a large number of instances in 
 which injunctions may issue — most of these declaratory of the 
 unwritten law. 
 
 1. Venue of Injunction Suits. 
 
 § 356. Venue of injunction suits. ^ — The A irginia stat- 
 ute - provides that "jurisdiction of a bill for an injunction of 
 (1) any judgment or judicial proceeding shall be in the court in 
 which the judgment was rendered, or such proceeding is pend- 
 ing" — with special provisions for injunctions against judgments 
 of justices of the peace or proceedings before them; and (2) 
 "jurisdiction of an injunction to any other act or proceeding 
 shall be in the circuit court of the county, or the circuit, corpo- 
 ration or other court of the city having chancery jurisdiction, in 
 which the act or proceeding is to be done, or is doing, or appre- 
 hended." 
 
 A later section ^ also provides that every order granting a tem- 
 porary injunction, shall be directed to the clerk of the court 
 having jurisdiction under the section quoted. 
 
 That is to say, the statute classifies bills for injunction into 
 two categories, viz. (1) Those directed against judgments or 
 judicmt proceedings; and (2) Those directed against some 
 other act or proceeding. By judicial interpretation* another 
 class exists, viz.: (3) Bills for equitable relief, in which the 
 injunction sought is ancillary only to the ultimate relief invoked. 
 
 § 357. The same — statute applicable to pure bills only. 
 
 — It is settled that where the injunction is not the only object 
 
 ' Passim — see title Injunctions in index, and ch. 266. 
 
 ' Va. Code 1919, § 6318. 
 
 ' § 6321. 
 
 * See infra, next section. 
 
180 Equity Pi,eading and Practice 
 
 of the suit, but is merely ancillary to other equitable relief (class 
 3 above) — e. g. to enjoin the negotiation of a promissory note, 
 and to have the same cancelled for fraud; or in a divorce suit 
 to prohibit the defendant from disposing of his estate, so that 
 it may be forthcoming to satisfy a decree for alimony — the stat- 
 ute has no appHcation. The court having acquired jurisdiction 
 to administer the main equitable relief sought, has jurisdiction 
 for all purposes necessary to complete relief, including the in- 
 junction as ancillary thereto. Here, it is not the prayer for in- 
 junction that corjfers the jurisdiction, but the ultimate relief 
 sought.^ 
 
 § 358. The same — statute mandato?:y, or directory 
 only?: — Having eHminated the third class of injunction suits, as 
 set out in the last section but one, and having determined, in 
 the last preceding section, that the statute embraces pure bills 
 of injunction only — e. g. to abate a nuisance, to enjoin trespass 
 or wastp, or picketing or other interference with plaintiff's em- 
 ployees by strikers, etc. — question arises whether the statute is 
 jurisdictional, and therefore mandatory, or whether its provi- 
 sions affect the venue only, and are therefore directory, and 
 pleadable only in abatement. 
 
 As jurisdiction to award injunctions is one of the most an- 
 cient of the prerogatives of courts of equity, these courts are 
 no more in need of special statutory authority to exercise that 
 jurisdiction than they are of special authority to grant equita- 
 ble relief in other instances under the general equity jurisdic- 
 tion — as specific performance, enforcement and protection of 
 trusts, and the multitude of other instances in which the equity 
 jurisdiction is exercised — a jurisdiction confirmed to these 
 courts by general jurisdictional statutes." In thus designating 
 the courts of particular localities for the trial and determination 
 of injunction suits, it was scarcely the purpose of the statute 
 to confer (an already inherent) jurisdiction, but rather, it would 
 seem, in spite of its somewhat mandatory language, merely to 
 conserve the convenience of the parties, in analogy to the gen- 
 
 ' Winston V. Midlothian, etc., Co., ao Gratt. 696; Muller v. Bayly, 
 31 Gratt. 531; infra, n. 8. 
 
 " Va. Code 1919, §§ 5890, 5910. See Moore v. N. & W. R. Co., 134 
 Va. 638. 
 
Injunctions — Venue 181 
 
 eral statutes of venue.' In other words, the specific localities 
 mentioned are merely cumulative, and are but extensions of the 
 general statutory provisions for venue of judicial proceedings. 
 This conclusion is strengthened by the familiar principle that 
 an additional remedy or mode of procedure for the exercise of 
 an already existing right or jurisdiction is, in absence of re- 
 strictive language, to be interpreted as cumulative, and not as 
 exclusive of existing remedies or practice. 
 
 These considerations warrant the conclusion that the statu- 
 tory designation of specific localities in which suits for injunc- 
 tions are to be instituted and heard, is directory and not manda- 
 tory — and is to be interpreted as authorizing an additional 
 vemie, and not as conferring or limiting equitable jurisdiction 
 of injunction suits. 
 
 If this be true, then the objection that the suit is instituted in 
 some county or corporation beyond the Vcnue specifically desig- 
 nated, may be raised, if at all, only by plea in abatement; and if 
 the venue be proper under the general statutes of venue, even a 
 plea in abatement will be ineffective.® 
 
 ' Va. Code 1919, §§ 6049-6050. 
 
 ' For observations on the confusion wrought by the numerous 
 senses in which the term "jurisdiction" has been used, as well as for 
 the distinction between "jurisdiction'.' and "venue'' see ante, chs. ii, iv. 
 The question discussed in this section has made difficulty for the Vir- 
 ginia courts for more than three-fourths of a century, and it is re- 
 grettable that the revisers of the Code of 1919 did not purge the 
 statute of the long-standing ambiguity. In Randolph's Ex'r v. Tucker, 
 10 Leigh 655 (interesting as involving the testamentary capacity of 
 John Randolph of Roanoke), the court held, practically without dis- 
 cussion, that the statute limited the jurisdiction to the county in which 
 the judgment sought to be enjoined had been entered — and therefore 
 that the statute was jurisdictional. The case was not one of a pure 
 bill of injunction, but the injunction was an'cillary. This ruling, so 
 far as it applies to ancillary injunctions, has been over-ruled, in later 
 cases, as will appear. In Beckley v. Palmer, 11 Gratt. 625 — another 
 case for injunction and relief — on full discussion, a similar ruling 
 was announced, with some dissent; but, apparently unwilling to rest 
 the decision on that ground, the court held that the bill was without 
 equity; and, instead of dismissing the bill, for lack of jurisdiction (as 
 must have been done if jurisdiction were absent) the decree of the 
 lower court was amended, with directions to dismiss. As the bill 
 was without equity, there was no occasion to pass upon the juris- 
 dictional question, and the ruling may fairly be characterized as obiter. 
 This decision has likewise been disapproved, as will appear, so far 
 as it was applied to a suit for injunction and relief. Later in Winston 
 V. Midlothian, etc., Co., 20 Gratt. G86, it was held (without discussion) 
 
182 Equity Pleading and Practice 
 
 2. Temporary Injunctions. 
 
 § 359. Preliminary injunctions — "restraining orders." 
 
 — Distinction is sometimes made between a preliminary (or tem- 
 porary) injunction and a restraining order — the latter contem- 
 plating a less extended stay than the former, and resorted to 
 only in cases of great emergency. The restraining order is usu- 
 ally limited to a very brief period fixed in the order, and the 
 plaintiff is reqiuired in the meantime to give notice to the de- 
 fendant of his intention, within the period named in the order, 
 to apply for a temporary injunction.^ 
 
 § 360. The same — notice. — By the unwritten law, the 
 question whether the defendant is entitled to notice of the ap- 
 plication for a preliminary injunction rests in the sound discre- 
 tion of the court or judge to whom the application is made. 
 Whether such notice should or should not be required depends 
 on the special circumstances of each case. Justice requires that 
 
 that the statute was inapplicable where the injunction was ancillary 
 to other relief. In.Mullef i'. Bayly, 21 Gratt. 531 — another case of 
 ancillary injunction — the question was considered at some length by 
 Moncure, P. (who had concurred in the opinion in Beckley v. Palmer, 
 supra). It was held that as the injunction was ancillary only, the 
 statute was inapplicable. The court was not content, however, to 
 place the decision on the narrower ground, but proceeded to place 
 it on the broad ground that whether tlie case was one of a pure bill or of 
 an ancillary bill of injunction,, the statutory provisions were subject 
 to waiver by the parties — and hence were not jurisdictional, since 
 jurisdiction, cannot be conferred by consent. The opinion clearly 
 indicates disapproval of the ruling in Beckley v. Palmer (supra). In 
 N. & W. R. Co. T. Postal Tel. Co., 88 Va. 932, 936 (2 cases), the 
 question arose for the first time in connection with a pure bill of in- 
 junction, where the venue was not in accordance with the statute. But 
 as both cases were disposed of on a motion to dissolve a temporary 
 injunction, as im providently cKvarded, .the question neither of venue 
 nor of jurisdiction was involved, though the court took occasion to 
 say (without discussion) that the error in the selection of the court 
 was fatal to the maintenance of the suit. In Statham f. Blackford, 
 S9 Va. 771 — a case of mandamus, under a somewhat similar statute — 
 three of the five judges held that the statute was waived by failure to 
 plead in abatement, and hence that the statute was one of iienue only. 
 In Baker i'. Briggs, 99 Va. 360 — a suit for injunction and relief — 
 the statute is only quoted in sustaining the ruling that as the suit 
 was brought in the county where the act to be enjoined was threat- 
 ened, the venue was proper. 
 
 ° Provision is made for such restraining orders {sub noin. injunction) 
 by Va. Code 1919, § 6317, with sundry provisions for enlarging or 
 vacating them. Equity Rule 73 makes like provision for such or- 
 ders in the Federal courts. See next section. 
 
Injunctions — Ti-imporary 183 
 
 notice should be given, if pi-acticable, and the emergency per- 
 mits; but if there be reason to apprehend that by being put on 
 notice of the application the defendant will be able to defeat, 
 and probably will defeat, the very purpose for which the injunc- 
 tion is sought, notice will not be required. The Federal Equity 
 Rule, quoted in the section following, seems a concise and ac- 
 curate statement of the unwritten rule. 
 
 The question of notice in such cases is regulated in many 
 states by statute. In Virginia the statute is but declaratory of 
 the unwritten law.^" 
 
 § 361. Tfhe same^ — in the Federal courts^notice. — 
 
 The Federal courts are prohibited from granting a 'preliminary 
 injunction without notice to the opposite party. i'^ But a tem- 
 porary 'restraining order' may be granted without notice, where 
 it "clearly appears from specific facts, shown by affidavit or by 
 the verified bill, that immediate and irreparable loss or damage 
 will result to the applicant before the matter can be heard on no- 
 tice." In such case "the matter shall be made returnable at the 
 earliest possible time, and in no event later than ten days from 
 the date of the order." The opposite party, on two days' notice 
 to the adversary, may appear and move the dissolution or modi- 
 fication of the order/2 
 
 § 362. The same— afladavit to bill.— The Virginia stat- 
 ute, ^^ which seems in this respect but declaratory of the unwrit- 
 ten law, forbids the awarding of an injunction in any case not 
 ready for hearing, "unless the court or judge be satisfied, by 
 affidavit or otherzidse, of the plaintiff's equity." That is to say, 
 the allegations of the bill must be sustained prima facie, either 
 by affidavit or other sufficient evidence. 
 
 § 363. The same — jurisdiction to award. — In Virginia, 
 preliminary injunctions, even in vacation, may be awarded by 
 the judge of any circuit or corporation court, or of a city court 
 
 " Notice may be required "if in the opinion of the court or judge 
 it be proper that such notice shold be given." Va. Code 1919, § 6323. 
 " Equity Rule 73. 
 '"- Id. 
 '■"■ Va. Code 1919, § 6322. 
 
184 Equity Pleading and Practice 
 
 having chancery jurisdiction, in the state — regardless of the lo- 
 cality of the controversy or the residence of the parties.^* 
 
 But it should be observed that while the plaintiff in the bill 
 may thus secure his temporary injunction, or restraining order, 
 from any equity judge in any one of the more than one hundred 
 counties and cities in the state, the maturing and hearing of the 
 cause on its merits, is by the statute assigned to a particular 
 venue, as shown in preceding sections. This means that the 
 order awarding the temporary injunction by a judge beyond the 
 circuit, is directecf to the clerk of the court of the proper venue, 
 where the suit is, or is to be, instituted, and where the case is 
 eventually to be tried on its merits. ^^ 
 
 § 364. Original jurisdiction in judges of Court of Ap- 
 peals to award injunctions. — The Virginia statute i^ pro- 
 vides that where a circuit or corporation court, or other court 
 of chancery, or a judge thereof, shall refuse to award an in- 
 junction, or shall dissolve or refuse to enlarge it, application may 
 be made on the original papers, with a copy of the proceedings 
 in court and with the judge's order of refusal, to a judge of the 
 court of appeals, who may thereupon award the injunction. 
 Such order, when awarded by the appellate judge, is directed to 
 the clerk of the lower court, of the proper venue ; and thereafter 
 "the proceedings thereupon shall be as if the order had been 
 made by such (lower) court or the judge thereof." ^'' 
 
 § 365. The same — address of bill. — Before applying for 
 the temporary injunction, counsel must consider and decide in 
 
 " Va. Code 1919, § 6319. See Receivers, post, ch. xxxii. 
 
 "^ Va. Code 1919, § 6331. 
 
 ^° Va. Code 3 919, § 6320. This statute does not impair the ordinary 
 course of appeals where injunctions are refused, or dissolved, in cases 
 matured and heard on the merits. French v. Chapin-Sachs Mfg. 
 Co., 118 Va. 117. 
 
 " Id. § 6321. The effect of this statute was the subject of a 
 somewhat acrimonious discussion by the majority and minority of 
 the judges in Wilder v. Kelley, 88 Va. 274. The dissenting opinion 
 of Lewis, P. (concurred in by Fauntleroy, J.), seems the only pos- 
 sible interpretation, vi". that when the appellate judge grants the in- 
 junction he acts not in an appellate capacity, but as the judge of another 
 court of co-ordinate jurisdiction; and therefore the preliminary in- 
 junction so awarded may be dissolved by the judge of the lower 
 court, on preliminary motion in vacation. This seems plain from 
 the language of the statute. 
 
Injunctions — Bond 185 
 
 what particular court and venue the suit is to be instituted. Re- 
 gardless of the circumstances that application for the order is 
 to be made to a judge beyond the circuit, the bill should be ad- 
 dressed to the judge of the court of the proper venue, and not 
 to the particular judge from whom, in the first instance, the in- 
 junction is sought. In the latter instance, as well as in that 
 where application is to a resident judge, presentation of the bill 
 in person, accompanied by an informal oral motion or request — 
 or, if by. mail, an informal letter accompanying the bill — is suffi- 
 cient. 
 
 § 366. The injunction order — preparation. — Counsel 
 should not expect the judge or court to prepare the desired or- 
 der, but should himself carefully frame the order desired, and 
 should present the same, along with the bill, at the time of the 
 application. 1® 
 
 § 367. The same — indemnifying bond. — The practice of 
 all chancery courts, as a condition precedent to the granting of a 
 temporary injunction, is to require that the plaintiff, or some one 
 for him, shall execute, before the clerk of the court, a bond, 
 with good security, in a penalty fixed by the court, conditioned 
 to indemnify the defendant against all loss or damage which may 
 be incurred by the defendant in case the injunction shall be dis- 
 solved. ^^ 
 
 § 368. Preliminary injunction — how served. — Where 
 the injunction is granted before service of the subpoena, as may 
 be done in a proper case, a copy of the order is generally en- 
 . dorsed on or attached to the subposna, and served by the sheriff 
 along with the subpoena, the clerk certifying thereon that the re- 
 quired bond has been executed: If issued after subpoena served, 
 the order is served like any other process. 
 
 3. Bill to Unjoin Legal Proceeding. 
 
 s. 
 
 § 369. Bill to enjoin proceedings at law — requiring 
 confession of judgment. — Where defendant at law files a bill 
 
 '" For form, see Appendix. 
 
 " This practice is confirmed by the Virginia statute (Code § 6324), 
 except as to personal representatives or other persons from whom, 
 in the opinion of the court, it may be improper to require bond. 
 
186 Equity Pleading and Practice 
 
 in equity to enjoin proceedings at law, the court may put him 
 on terms of confessing judgment at law, as the price of its as- 
 sistance. This is largely a matter of judicial discretion. 
 
 § 370. The same — (a) when such confession re- 
 quired. — In such case, if it appear from plaintiff's bill that the 
 defendant (plaintiff at law) is entitled to a judgment at law, and 
 that the equity-plaintiff (defendant at law) has a valid defense, 
 but available in equity only, then on the latter's application for 
 a preliminary injunction against the i.roceeding at law,' fairness 
 to the equity-defendant requires that the equity-plaintiff shall 
 confess judgment at law — subject, of course, to the control of 
 the court in the injunction proceedings. 
 
 Here, if the plaintiff in equity succeeds in making out his 
 equitable defense at the equity-hearing, the court will enter a 
 perpetual injunction against the judgment so confessed, and no 
 harm will have resulted from the confession. If, on the other 
 hand, the equity-plaintiff fails to make out his equitable defense 
 at the hearing — thus calling for a dissolution of the injunction 
 and a dismissal of the bill — the confession of judgment, previ- 
 ously required, saves the plaintiff at law from harm by reason 
 of the injunction; since not only are further proceedings at law 
 unnecessary, but the plaintiff' at law is left where he would have 
 been had the injunction not interfered, namely, with a judgment 
 in his favor. 
 
 Here the court has merely applied the maxim that "he who 
 wants equity must do equity." It has required the equity-plain- 
 tiff, as the price of its assistance, to put his adversary in a posi- 
 tion where as little harm as possible will result from the prelim- . 
 inary injunction, in case it finally be dissolved. 
 
 §371. The same — (b) when confession not required. 
 
 — But where the defense is not equitable only — where the plain- 
 tiff in equity denies his adversary' s right to i ecover in. any forum, 
 legal or equitable, and the application for relief in equity is only 
 because, under all the circumstances, equity is a more appropri- 
 ate tribunal in which to conduct the litigation, then no siich terms 
 as a confession of judgment ought to be exacted of the equity- 
 plaintiff as the price of the court's assistance ; since this might 
 imperil his legal defense, in case he should fail to make out his 
 
IxjUNCTIONS AGAINST LEGAI, PROCEEDINGS' 187 
 
 equitable defense at the hearing, and therefore be remitted to 
 his legal defense. In other words, it "would not be safe," as 
 the courts express it, to require a confession in such case. 
 
 § 372. The same, continued. — The peril to the defend- 
 ant at law here arises from the fact that by the confession at 
 law, he waives his legal defense — the confessed judgment be- 
 ing a finality in the law court — and the defendant must, there- 
 fore, stake his entire defense on the equitable relief demanded. 
 Should this fail,' he is left without any defense, though he may 
 have had a good defense at law. Without such confession of 
 judgment, should the relief in equity fail, he is relegated to the 
 legal defense, which is still open to him. 
 
 It is error, therefore, in such case, to require a confession of 
 judgment. But where such confession has been erroneously re- 
 quired by the lower court, and the bill is subsequently dismissed 
 and the injunction dissolved for want of equity, the court should 
 dissolve the injunction only on condition that the plaintiff at 
 law withdraw his judgment and consent to re-open the case and 
 to reinstate it on the docket, so as to give the defendant at law 
 opportunity to try the case in the law court, on its merits. And 
 where the lower court refuses to do this, the decree will be re- 
 versed on appeal, and a proper decree to that effect entered by 
 the appellate court. This was done in the case first cited. ^o 
 
 And even where the injunction order does not require a con- 
 fession of judgment, yet, if the confession of judgment and 
 the injunction are entered on the same day, the court of appeals 
 ^will presume that the judgment was confessed, subject to the 
 result of the equity proceeding.^i 
 
 4. Motions to Dissolve. 
 
 § 373. Motions to dissolve preliminary injunctions — 
 
 in vacation. — As the plaintiff may, in a proper case, obtain a 
 
 preliminary injunction in term or in vacation, so the defendant 
 
 has the like privilege, after reasonable notice to the adverse 
 
 ■" Great Falls Mfg. Co. v. Henry, 25 Gratt. .57.5; Dudley v. Miner, 
 9,T Va. 408. 
 
 "' Staples i\ Turner, 2.5 Gratt, 336. As to the jurisdiction iii eq- 
 uity to e«join a judgment at law on the ground of newly discovered 
 evidence, and the practice in such cases, see Wynne v. Newman, 75 
 Va. 811; Pickford v. Talbott, 225 U. S. 651, 56 L. Ed. 1240, n; 21 
 L. R. A. 747 n; Lllc, Notes on Eq. Jurisp. (ed. 1921), p. 246. 
 
188 Equity Plkading and Practice 
 
 party, of moving to dissolve, in term or in vacation, and before 
 the cause is matured for hearing.22 
 
 And, again, as the plaintiff may secure the injunction on ex 
 parte affidavits — and may offer supplementary afifidavits to sus- 
 tain the allegations of his bill, in opposition to defendant's mo- 
 tion to dissolve — so the defendant, on his motion to dissolve, 
 may be heard on counter-affidavits. In such case, the defendant 
 may use his sworn answer as an affidavit — but only as an affi- 
 daznt, since the cause not having been matured> the answer, on 
 the motion to dissolve, whether oath be waived in the bill or not, 
 is not read as a pleading, nor as having the evidentiary value of 
 a sworn answer under the original equity practice.--'^ 
 
 § 374. The same — effect of dissolution on the pending 
 suit. — Where the injunction is thus dissolved on a preliminary 
 motion, the result is, of course, no" more final than was the 
 granting of the injunction in limine. A hearing at this stage, be- 
 fore the cause has matured, and before the parties have had op- 
 portunity of presenting the complete testimony in the form of 
 depositions of witnesses, in nowise disposes of the question of 
 the injunction on its merits. Hence, the order of dissolution, or 
 the refusal to dissolve, may later, on a full hearing after the 
 cause has ripened for trial, be rescinded by the court. The or- 
 der, therefore, is not final ; and though the bill be a pure bill of 
 injunction, and the injunction be dissolved, the court or judge 
 may not, at that stage of the proceeding, dismiss the bill. 2* 
 
 But, equally of course, where the injunction is dissolved after 
 the cause is matured, and after a hearing on the merits, the or- 
 der presents the same degree of finality as any other decree en- 
 tered under similar circumstances. That is to say, if the case 
 be a pure bill of injunction, an order dissolving the injunction 
 will necessarily call for a dismissal of the bill.^s If on the other 
 hand, the injunction be ancillary only, the order will dispose of 
 the injunction, but the suit will proceed in other aspects. 2® So 
 here, a refusal to dissolve, will normally result in a decree ei- 
 ther continuing, enlarging or perpetuating the injunction. 
 
 ^ Id. § 6326; Equity Rules 1, 73. 
 
 °^ But where the motion is. heard on bill and answer only, the 
 answer is conclusive. See Answers as Bz'idciice, ante, ch. xvi. 
 "' Mount V. Radford Trust Co., 93 Va. 437. 
 "^ See Va. Code 1919, § 6338. 
 '" Pulliam 7: Winston, n Leigh 324. 
 
Partition 189 
 
 CHAPTER XXVIII. 
 II. Partition of Estates. 
 
 § 375. Equitable jurisdiction. i — The more convenient 
 remedy afforded in equity for making partition of real prop- 
 erty ^ has practically superseded the former proceeding at law. 
 
 § 376. Procedure. — ^The procedure in partition suits is by 
 ordinary bill in equity, though to some extent regulated by stat- 
 ute.^ 
 
 1. Venue. 
 
 § 377. Venue of suit. — Suit may be brought in any court 
 of general equity jurisdiction in the county or corporation 
 wherein the land or any part of it lies* 
 
 § 378. The same — statutory venue mandatory or di- 
 rectory? — The question whether the provision of the statute '' 
 declaring that "any court having general jurisdiction of the 
 county or corporation wherein the estate, or any part thereof, 
 is, shall have jurisdiction in cases of partition," prescribes a 
 venue that is jurisdictional, and therefore mandatory and of the 
 essence of the proceeding, or is merely auxiliary to the general 
 statutes of venue,^ and therefore to be objected to only by plea 
 in abatement, seems not to have been adjudicated. In preceding 
 chapters ''' the distinction between technical jurisdiction and 
 venue has been considered, and the confusion resulting from the 
 use of these two expressions as if interchangeable, has been 
 adverted to. ' 
 
 ^ Consult Virginia Code 1919, ch. 214, and revisors' valuable an- 
 notations; Freeman, Co-tenancy. 
 
 ' The statute makes provision also for the partition in equity of 
 goods and chattels — by sale if necessary. Va. Code 1919, § 528'6. 
 
 ' See Va. Code 1919, ch. 314. 
 
 * Id. § 5279. Equity will not take jurisdiction of suits for parti- 
 tion of lands in another state. Pillow v. Southwest, etc., Co., 92 Va. 
 144, reported, with note by Judge Burks, in 1 Va. Law Reg. 663. 
 
 " Va. Code 1919, §' 5279. 
 
 " Id. §§ 6049-6050. 
 
 ' Chs. ii, iv. See also supra, §§ 356-358, where the same question 
 is discussed in connection with Injunction Suits. 
 
190 Equity Pleadixg and Practici!; 
 
 § 379. The same — venue continued. — As partition of 
 real property in kind is an ancient heritage of equity, and exists 
 independently of statute, a statute merely declaring the juris- 
 diction, and naming the particular locality in which it is to be 
 exercised, would on principles heretofore considered * be de- 
 clared directory only; and error in the venue could be availed 
 of only by a plea in abatement. 
 
 But the Virginia statute quoted, very much enlarges the orig- 
 inal equity jurisdiction here, and confers new powers — some of 
 which were previously non-existent in any court, and others the 
 exclusive prerogative of courts of law. The right of a co-ten- 
 ant to an enforced sale for partition, where partition in kind is 
 impracticable, is a new right created by the statute." So the 
 broad powers conferred to deal with questions of legal title in 
 such proceedings, constitute a very radical extension of the eq- 
 uity jurisdiction. 10 
 
 This being true, and according to the principle heretofore dis- 
 cussed, i'- that where new rights are created by statute, and a 
 special procedure is prescribed for its exercise — thus constitut- 
 ing the jurisdiction a special and limited one — the remedy be- 
 comes an adjunct of the right, and is therefore of the essence of 
 Its enjoyment, the provision here with reference to the venue of 
 suits for partition would seem to be jurisdictional; and *:hcre- 
 fore error in the venue will be fatal to the validity of the pro- 
 ceeding. 
 
 The court has practically so held, where, the decree directed a 
 sale for partition — as being a new statutory right. ^^ But the 
 same result should follow even where the suit does not contem- 
 plate the exercise of the extended jurisdiction, but is a simple 
 suit for partition in kind, with no question of legal title pre- 
 sented. It would seem that the several provisions of the stat- 
 ute are too closely interwoven to enable the court to declare 
 that a portion of the jurisdiction expressed therein may be ex- 
 
 ^ Ante, chs. ii, iv. 
 
 ' See Roberts v. Hagan, l:2l Va. o7:!. 
 
 " Stuart's Heirs i: Coalter, 4 Rand. 74, 1.5 Am. Dec. 731; Straughan 
 I'. Wright, 4 Rand. ,493; Seefried v. Clark, 113 Va. 365; Phillips v. 
 Dulaney, .114 Va. 681; Bailey f, Johnson, 118 Va. oO:,. 
 
 " Ante, chs. ii, iv. 
 
 "^ Roberts v. Hagan, 121 Va. .JT:J. 
 
Partition — Proper Parties 191 
 
 ercised under the general statutes of venue, while other portions 
 are to be exercised only within the narrow z'eniie prescribed by 
 the special statute ^'■'' 
 
 This conclusion is stengthened by the consideration that par- 
 tition proceedings are peculiarly in rem and local in their nature; 
 and by the further consideration that whether the proceedings 
 will result in partition in kind (under the general equity juris- 
 diction), or in a sale of the whole or of a part of the res (un- 
 der the statutory jurisdiction), with partition in kind of the resi- 
 due, are normally questions to be judicially determined in the 
 course of the proceedings, whereas the existence of jurisdiction. 
 confronts the court and litigants at the very inception of the 
 suit, and, if challenged, must be decided in limine. 
 
 2. Parties. 
 § 380. By whom suit brought. — The statute i* declares 
 that "tenants in common, joint tenants and co-parceners shall be 
 compellable to make partition ; and a lien creditor of any owner 
 of undivided estate in real estate may also compel partition for 
 the purpose of subjecting the estate of his debtor, or the rents 
 and profits hereof, to the satisfaction of his lien." A life-tenant 
 of one moiety, with remainder over, may maintain a bill for par- 
 tition of the entire estate,!^ and a guardian may maintain such 
 . a suit on behalf of his ward.^** 
 
 § 381. Partition in kind — necessary parties — consort 
 of co-tenant. — The question of necessary parties to partition 
 
 " See supra, n. 10. The principle applicable to the special statu- 
 tory and limited jurisdiction, are again considered in connection 
 with Suits for Divorce, post, ch. xxi.x, and Suits for Sale of In- 
 fants' Lands, post, ch. xxx. 
 
 " Va. Code 1919, § 5279. 
 
 " Carneal v. Lynch, 9] Va. 114, 50 Am. St. Rep. 819. 
 
 '° Zirkle v. McCue, 36 Gratt. 517. So plaintiff with legal title to 
 the whole, but co-tenant of the equitable title with others, may have 
 partition: Hogan v. Taylor, 110 Va. 9. And on a bill for dower by 
 the- widow of a testator, one of the devisees may by cross-bill assert 
 the right to partition among the several devisees, and a sale if nec- 
 essary, after assignment of dower: Kavanaugh v. Sliacklett, 111 Va. 
 423. But where the plaintiff is not a co-tenant with the defendant — 
 as where the defendant is in possession claiming the whole estate, 
 and plaintiff claims an undivided interest through a wholly different 
 source of title (a grant from the commonwealth) — a bill for partition 
 will not lie, but the remedy is in ejectment. Preston v. Va. Mining 
 Co., 107 Va. 245. See post, § 388. 
 
192 Equity Pleading and Practice 
 
 suits will depend somewhat on the ultimate outcome contem- 
 plated. Of course every person having or claiming an interest 
 in the estate is a necessary party. If the estate is to be divided 
 in kind, clearly no interest of the consort of any co-tenant will 
 be afifected. On consummation of the partition, the contingent 
 marital right of curtesy or dower, formerly attached to the un- 
 divided interest, will, by mere force of the partition, attach to 
 the parcel in severalty. 
 
 § 382. The same — lien creditors. — So, likewise, if there 
 be separate liens or other charges on the undivided interest of 
 any co-tenant, such lien or charge will ex propria vigore follow 
 the parcel assigned to the debtor-cotenant in severalty. Hence 
 such Henors need not be made parties, unless their substantial 
 interests are sought to be afifected, in which case, if not made 
 parties in the bill, they may intervene by petition.is^^ 
 
 On the other hand, if there be a paramount charge on the es- 
 tate, or any part of it — as, for example, dower, in the widow of 
 the ancestor or grantor, or a mortgage by all the cotenants or 
 their predecessor in title — the widow in the one case, or such 
 paramount mortgagee in the other, should be made a party for 
 the assignment of dower or the liquidation of the mortgage, as 
 the case may be, and partition made of the residue. '^''' 
 
 § 383. Sale for partition — parties, continued — ^lienors. 
 
 — Where, because of inconvenience or impossibility of making 
 partition in kind, the estate is to be sold, the question of par- 
 ties becomes more important, for courts of equity are averse 
 in any case to selling real property otherwise than free of hens; 
 and in order that there may be a sale free of liens, all lienors 
 must become parties to the suit. Such lienors should therefore 
 be made parties to the bill, or otherwise brought into the suit — 
 as by rule, or voluntary petition, or under an order of refer- 
 ence to a master — before the decree of sale.^* 
 
 § 384. The same — consort of co-tenant. — On sim'ilar 
 prinicples it would seem that where a sale is contemplated, the 
 
 'V Wright V. Wright, 76 Va. 857. 
 
 " Custis V. Snead, 13 Gratt. 260. 
 
 " The statute makes provision for securing the rights of Hen cred- 
 itors: Va. Code 1919, § 5281. See Moon v. Highland Development 
 Co., 104 Va. 551 ; sul^ra, § 382. 
 
Partition — Alibnees and Lessees 193 
 
 consort of a co-tenant should be made a party, so as to bar the 
 contingent marital right. But it appears to be a settled principle 
 that where the statute permits a sale for partition, such con- 
 tingent marital interests of dower and curtesy, by mere force 
 of the statute, are divested by the sale, even though the consort 
 be not a party to the proceedings^ — and this rule is made stat- 
 utory in Virginia. ^'^ 
 
 3. Lessees and Alienees. 
 
 § 385. Leases or alienations by one co-tenant. — Where 
 one co-tenant has aliened his own undivided interest, or any 
 part of it, such alienee will, of course, be made a party to the 
 suit, and proper allotment made. 
 
 So where there is a valid, paramount lease of all the interests, 
 in the entire estate, or in some definite portion thereof, the par- 
 tition or sale must be made subject to the lessee's rights. ^^ But 
 since no one co-tenant can, without a proper agency, by his sole 
 act of lease or alienation of the whole, or any definite portion, by 
 metes and bounds, affect either the substantial rights of his fel- 
 lows or their right of partition (in kind or by sale), it follows 
 that any alienee or lessee of such co-tenant can claim no greater 
 right than his grantor or lessor; and although such alienee or 
 lessee should properly be made a party to the suit, the parti- 
 tion or sale may be made as if such alienation or lease had not 
 been made,^^ but subject to the qualification stated in the fol- 
 lowing section. 
 
 § 386. The same — by metes and bounds. — Any co-ten- 
 ant who is sui juris may, of course, alien his undivided interest, 
 or any part thereof, as freely as if his portion had been allotted 
 to him in severalty. But since one co-tenant may not, without 
 consent of all, or without proper judicial sanction, claim any 
 part of the common estate in severalty by metes and bounds. 
 
 " In analogy to condemnation proceedings. The question is well 
 discussed in Lee v. Lindell, 33 Mo. 303, 64 Am. Dec. 363, and Weaver 
 V. Gregg, 6 Ohio St. 547, 67 Am. Dec. 355. See Freeman, Co-ten- 
 ancy 411, 474. 
 
 ^ Va. Code 1919, § 5381. The cases in the preceding foot note, 
 apply the rule to the wife only — but, by analogy, it must be equally 
 applicable to ,the husband's inchoate curtesy. 
 
 ■^ Id. § 5385; Lucy v. Kelly, 117 Va. 318. 
 
 "" Phillips V. Dulaney, 114 Va. 681; Stark v. Barrett, 15 Cal. 370. 
 
194 Equity Pleading and Practice 
 
 manifestly he may not alien thus in severalty to another so as 
 to pass to his grantee any greater rights in the premises than he 
 himself had. It follows, therefore, that no such conveyance in 
 severalty, by metes and bounds, will be recognized to the preju- 
 dice of the other co-tenants. But such a conveyance (according 
 to the better authority) will pass an equity to the grantee, which 
 a court of chancery will respect, so far as this can be done with- 
 out infringing the other co-tenants' rights. Where such alienee 
 (or one co-tenant himself) has in good faith taken possession of 
 a separate portion and made improvements, the court, in esti- 
 mating in partition proceedings the value of the entire tract, 
 will exclude the value of the improvements made; and, further, 
 with due precaution for justice to all parties, will assign the 
 severed parcel, with the improvements thereon, to the improving 
 co-tenant, or his grantee. This is eminently equitable, in that it 
 prevents the unjust enrichment of one person at the expense of 
 another.^* 
 
 It necessarily follows that a suit for partition of the aliened 
 parcel only, may not be maintained by the other co-tenants against 
 the alienee in severalty, since the equities of the latter can only 
 be worked out in partition proceedings affecting the entire orig- 
 inal holding.2* 
 
 4. Other Relief — Questions of Legal Title. 
 
 § 387. Combining partition with other relief. — Under 
 the liberal provisions of the Virginia statute, the appellate court 
 has held that assignment of dower may properly be united with 
 a prayer for partition, whether the two purposes be sought in 
 
 *■ Dennis v. Dennis, 116 Va. 619. Where such conveyances in 
 severalty have been followed by sub-alienations, in parcels, of the 
 portion thus attempted to be severed, the equities of the parties are 
 apt to become highly complicated. See such a case in Highland Park 
 Mfg. Co. V. Steele, 235 Fed. 465 — the opinion in which, by Connor, 
 J., will be found enlightening on the general subject of alienations 
 in severalty by co-tenants. See further: Freeman, Co-tenancy, 199 
 et seq; id. 465; Boggess v. Meredith, 16 W. Va. 29; Young v. Edwards, 
 33 S. C. 404, 11 S. E. 1066, 10 L. R. A. 55, 36 Am. St. Rep. 689. 
 
 "" Highland Park Mfg. Co. v. Steele, supra; Bigelow v. Eittlefield, 
 52 Me. 24, 83 Am. Dec. 484; Barnes v. Lynch, 151 Mass. 510, 24 N. 
 E. 783, 21 Am. St. Rep. 470. See 30 Harv. Law Rev. 403. 
 
Partition — Questions of Legal, Title 195 
 
 the original bill, or the prayer for partition be presented in the 
 cross-bill. 25 
 
 And in a bill for partition of a trust-estate rescission of a 
 wrongful conveyance by the trustee to one of the co-tenants, 
 may be decreed. ^^ 
 
 § 388. Trying questions of legal title in partition suit. 
 
 — The Virginia statute ^'^ declares that the court "in the exer- 
 cise of such jurisdiction may take cognizance of all questions of 
 law affecting the legal title that may arise in any [such] proceed- 
 ings, between such tenants in common, joint tenants, co-par- 
 ceners and lien creditors." 
 
 This provision has been construed by the courts in most lib- 
 eral spirit. While it is held that the right to a jury trial, on 
 purely legal questions, cannot be taken away by extending the 
 equitable jurisdiction, and hence that a partition suit may not 
 be substituted for ejectment at law,^^^ yet that if the suit be 
 properly one for partition, the court having jurisdiction for one 
 purpose may proceed to give complete relief, even in matters of 
 purely legal right. Thus, in Pillow v. Southwest, etc., Co. ,2* 
 followed in Morgan v. Haley,^^ it is held that if defendant, 
 though in adverse possession of the whole estate, is one who, in 
 his own person or through his predecessors in title, was- once a 
 joint owner with the plaintiff, or with his predecessors in title, 
 the whole question of the legal as well as the equitable rights of 
 the parties may be threshed out in the partition proceeding. 
 
 Nor is jurisdiction of a suit in which the bill sets out a case 
 proper for partition, ousted, and the suit subject to dismissal on 
 a preliminary motion, by the filing of defendant's answer, set- 
 ting up complete ownership and possession in himself, by title 
 
 "^ Kavanaugh v. Shacklett, 111 Va. 423. See Carneal v. Lynch, 91 
 Va. 114. Supra, § 306, n. 
 
 ^ Seefried v. Clarke, 113 Va. 365. See also L,aurel Creek, etc., 
 Co. V. Browning, 99 "Va. 5 — a suit for cancellation of lease and for 
 partition. 
 
 "' Code 1919, § 5279. 
 
 "a Preston v. Va. Mining Co., 107 Va. 245. 
 
 "" 93 Va. 144 — reported, with an instructive note by Judge Burks^ 
 in 1 Va. Law Reg. 663. 
 
 "^ 107 Va. 331. 
 
196 Equity Pi,eading and Practice 
 
 hostile to that through which the plaintiff claims, - and not de- 
 rived from a common source.^i" 
 
 5. Partition in Kind. 
 
 § 389. The partition — where divisible in kind. — If the 
 
 property be divisible in kind, any co-owner has the right to in- 
 sist that the partition he so made. The majority of the co-own- 
 ers in such case may not insist on a sale against the will of any 
 of their fellows. ^^ 
 
 " Custis V. Snead, 12 Gratt. 260; Howery v. Helms, 20 Gratt. 1. 
 
 §390. Partition in kind — how made. — The primary ques- 
 tion in every suit for partition is whether a division in kind is 
 practicable or not. That such a division is, or is not, practicable 
 may be apparent from the character of the property as described 
 in the pleadings. But where the question is not thus settled, it is 
 usual to have an order of reference to special commissioners 
 named by the court — usually three or five,^^ a^d generally nomi- 
 nated by the parties — to ascertain whether a partition in kind be 
 convenient and practicable, looking to the best interest of all the 
 parties, or whether their interests will be promoted by a sale, in 
 whole or in part; and if partition be found practicable, to re- 
 port to the court a scheme for dividing the estate as equally as 
 possible' among the several owners, according to their respective 
 
 ^° Goodman v. Goodman, 124 Va. 579. The real point decided here 
 is, that where the bill states a case proper for the jurisdiction of 
 equity, the bill may not be dismissed on preliminary motion of de- 
 fendant, on the filing of his answer, though the answer sets up 
 facts which if true, ought to defeat the jurisdiction. The motion was 
 clearly premature. Doubtless, if at the final hearing, the defendant 
 Had established the allegations of his answer by proof, the suit must 
 have been dismissed, as clearly the plaintiff's remedy would be at 
 law, in ejectment, and not in equity under the guise of relief in 
 partition proceedings. 
 
 The cases of Litz v. Rowe, 117 Va. and Bailey v. Johnson, 118 Va. 
 505, are distinguishable, in that these represented efforts on the part 
 of petitioners, not parties to the bill, to assert, by intervention in a 
 partition suit, a hostile title, not derived from a common source. 
 See in this connection, Preston v. Va. Mining Co., 107 Va. 245. 
 
 In setting out the title in a partition bill, under which the plain- 
 tiff asserts a relation of co-tenancy with the. defendants, there need 
 be no formal deraignment of title, provided the bill fairly indicates 
 the relation and how produced. Goodman v. Goodman, supra. 
 
 ^^ But this may be done through reference to a single master, if 
 the court see fit, and no injustice appears. Phillips v. D'ulany, 114 
 Va. 681. See Cummingham v. Johnson, 116 Va. 610. 
 
Partition — In Kind 197 
 
 interests. Equality here connotes not equality of area, or of 
 acreage, but of value. 
 
 Subject to the approval of the court the commissioners may 
 assign the designated parcels to the parties, respectively, or may 
 fix the designation by lot.^^ 
 
 § 391. The same — the commissioners — procedure. — 
 The commissioners are generally required by the order to be first 
 sworn to perform their duties impartially. They are required 
 to go upon the lands to be divided, and are usually authorized 
 by the court to employ a competent surveyor to lay off, by metes 
 and bounds, the several parcels, making due provision, in the 
 case of agricultural property, for wood and water, and for rights 
 of way and other necessary easements and conveniences, and to 
 prepare a plat accurately indicating the location and description 
 of each parcel. On the coming in of the report, the court will 
 enter such decree as seems best for the interests of all parties. 
 
 § 392. The same continued — ^modified partition — ow- 
 elty. — Where the property is not susceptible of partition into 
 parcels of precisely equal value, the court may direct a sale of 
 part and partition of the residue; or inequality in the values of 
 the, several shares may be compensated by charging the more 
 valuable parcels with a lien for a designated sum {"owelty of 
 partition") in favor of those of less value. ^* The shares of two 
 or more of the co-tenants may be laid off together if they so 
 desire. ^^ 
 
 6. Making Title. 
 
 § 393. How title made to the several parcels in parti- 
 tion proceedings — (1) in case of co-parceners. — By the 
 unwritten law, on partition by co-parceners, even by parol, legal 
 title to the several parcels is said to vest in the parties zuithout 
 mutual conveyances — the effect of the partition being merely to 
 designate the parcels, and upon such designation title flows di- 
 rect from the ancestor. Hence, in partition proceedings in eq- 
 uity, the decree was, and still is, itself sufficient, without mutual 
 conveyances.^^ 
 
 '^ Cox V. McMuIIin, 14 Gratt. 83. 
 '* Va. Code 1919, § 5280. 
 =° Id. 
 
 " Boiling V. Teel, 76 Va. 487; Wright v. Johnson, 108 Va. 855. 
 See Freeman, Co-tenancy, 397-400. 
 
198 Equity Pi^eading and Practice 
 
 § 394. The same — (2) in case of other co-tenants. — 
 
 In order to vest legal title in severalty in the several co-tenants 
 who are not co-parceners, by the unwritten law voluntary par- 
 tition must have been consummated by mutual conveyances. 
 And since the decree of a court of chancery cannot ex proprio 
 vigore vest or divest legal title, a decree for partition must have 
 been consummated by like conveyances, either by the parties 
 or by a master acting in that behalf.*^ 
 
 § 395. The same — statutory title. — To avoid the ex- 
 pense and inconvenience of mutual conveyancjfes, the Virginia 
 statute declares that the decree of partition shall vest in the re- 
 spective co-owners, the titles to their shares "in like manner and 
 to the same extent as if the said decree ordered such title to be 
 conveyed to them and the conveyance was made accordingly." '^ 
 The statute is in terms retrospective. 
 
 7. Partition Impracticable — Sale. 
 
 § 396. Partition by sale, — Where neither a complete nor 
 a modified partition in kind can conveniently be made, having 
 due regard to the circumstances of each parcel and the interest 
 of all parties, the court may, under statutory authority, as 
 shown, decree a sale of the entire estate, and a division of the 
 proceeds among the several co-owners.*® 
 
 As already pointed out,*" by the unwritten law a sale for par- 
 tition could only be had by consent of parties, and courts were 
 without jurisdiction to compel an involuntary sale for purpose 
 of partition. In exercising the statutory power, therefore, the 
 court must proceed in substantial conformity to the statute, as 
 in all other cases of statutory and limited jurisdiction.*^ 
 
 " Id. 
 
 " Va. Code 1919, § 5382. Provision is made by § 5216, for the 
 recordation of the decree. Counsel should also see that the order 
 directs that the report and plat be recorded. In Wright v. lohnson, 
 108 Va. 855, where the wife's parcel had been erroneously assigned 
 by decree to her husband, not consummated by deed, it was properly 
 held that legal title did not, by virtue of the statute, vest in the 
 husband where the wife was a co-parcener^s'inc^ the statute was not 
 intended to operate to defeat an existing legal title. 
 
 " Id. § 5281. The whole may be allotted to one, on equitable 
 terms. Id. 
 
 " Ante, § 379. 
 
 " Roberts v. Hagan, 121 Va. 573. See ante, § 18 et seq. 
 
Partition — Sale — Proceeds 199 
 
 § 397. Disposition of proceeds — infants. — As already 
 mentioned, the statute*^ makes careful provision for the protec- 
 tion of lien-creditors, and of the rights of infants and lunatics. 
 
 If the dividend of an infant or lunatic exceed $500, and be not 
 held in trust, it is to be invested under the supervision of the 
 court, and not paid over to the guardian or committee — but if 
 less than $500 it may be so paid over to the guardian or com- 
 mittee. If held in trust, the amount, whatever it be, is paid 
 over to the trustee, but only on his giving proper security.** 
 
 § 398. The same — when and to what extent conver- 
 sion occurs. — As to those who are sui juris, the proceeds of 
 the sale are regarded as personal estate from the time of con- 
 firmation of the sale.** In the case of infants and lunatics, 
 their dividends are to be regarded as real estate as to so much as 
 may remain at their death intestate and incapable of making a 
 will — in short, until death or the removal of the disability.*^ 
 
 " Va. Code 1919, § 5381. See Roberts v. Hagan, 131 Va. 573. 
 
 " Id. 
 
 " Id. § 5383. 
 
 « Id. § 5347. 
 
200 Equity Pleading and Practice 
 
 CHAPTER XXIX. 
 III. Suits for Nullity and Divorce. i 
 
 § 399. General equity jurisdiction. — The jurisdiction of 
 divorce and matrimonial causes, originally exercised by the Eng- 
 lish ecclesiastical courts, is now very generally exercised in 
 America by courts of equity — in some particulars by inherit- 
 ance, but chiefly by virtue of express statutory enactment.^ 
 
 § 400. The same — in Virginia. — In Virginia the circuit 
 and corporation courts, on the chancery side thereof, and all 
 other courts having chancery jurisdiction, are invested by stat- 
 ute ^ with complete jurisdiction of suits for annuUing or af- 
 firming marriages, and for divorce. 
 
 § 401. The venue of the suit. — The statute* provides 
 that the suit, whether for divorce, nullity or for affirmation of 
 the marriage, "shall be brought in the county or corporation in 
 which the parties last cohabited, or (at the option of the plain- 
 tiff), in the county or corporation in which the defendant re- 
 sides, if a resident of this state, and if not a resident, in the 
 county or corporation in which the plaintiff resides." 
 
 That is to say: 
 
 (1) Where the defendant is a resident of the state: The 
 suit may be instituted (at the plaintiff's option) either in the 
 county or corporation (a) where the parties last cohabited, or 
 (b) where the defendant resides. 
 
 (2) Where the defendant is a non-resident: Suit is to be 
 brought in the county or corporation of the plaintiff's residence. 
 
 § 402. The same — venue jurisdictional. — As the juris- 
 diction of the matrimonial causes mentioned is a special statu- 
 tory and limited one,^ it would seem that such jurisdiction must 
 
 ' See Va. Code 1919, ch. 205. 
 
 ^ 1 Bishop, Mar. Div. & Sep. 801-807; Blankenship v. Blankenship, 
 125 Va. 595. See Ruge v. Ruge (Wash.), L. R. A. 1917F, 721. 
 ' Va. Code 1919, § 5105. 
 * Va. Code 1919, § 5105.^ 
 '' Sitpra, § 400. See Jurisdiction, ante, ch. ii; Venue, ante, ch. iv. 
 
Suits for Divorce 201 
 
 be exercised in conformity to the statute bestowing it. In such 
 cases, as heretofore shown, the question of venue becomes ju- 
 risdictional; with the result that not only is no plea in abatement 
 necessary to raise the question of venue, but the bill is demurra- 
 ble unless it shows on its face that the suit is instituted in the 
 proper statutory venue. It follows that the objection cannot be 
 waived, and the court will inero niotu dismiss the bill when de- 
 fective in this respect.^ 
 
 § 403. Divorce suits, continued — essentials of juris- 
 diction in Virginia. — It is important to observe that Virginia 
 does not (as probably does no other state) throw wide open the 
 doors of her equity courts to all the world seeking relief from 
 matrimonial bonds, as in cases where ordinary equitable relief is 
 sought. But the statute'^ conferring equitable jurisdiction of 
 nullity and divorce suits, in terms, provides that no nullity or di- 
 vorce suit shall be maintained in the courts of this state "un- 
 less one of the parties has been domiciled ^ in this state for at 
 least one year preceding the commencement of the suit" — and 
 no suit for affirming a marriage, unless one of the parties be 
 domiciled here at the time of suit brought. 
 
 It is clear that these requirements are jurisdictional, and must 
 
 ° Yates V. Yates, 115 Va. 678; Blankenship v. Blankenship, 125 Va. 
 695. In Towson v. Towson, 136 Va. 640, 651, 654, there are dicta by 
 Burks, J., indicating that the venue here is not jurisdictional. This 
 seems to lose sight of the rule so frequently laid down by the court, 
 before and since, that a statutory right may be exercised only in 
 accordance with the prescribed statutory procedure. See ante, chs. 
 ii and iv; Sale of Infant's Lands, post, ch. xxx. 
 
 As to venue of suits for alimony without divorce, see Lang v. 
 Lang (W. Va.), 73 S. E. 716, 38 L. R. A. (N. S.) 950, where it is held 
 that the venue of such suits is not dependent on special statutes 
 regulating divorce proceedings, but on the general statutes of venue. 
 On the general subject of such suits for separate maintenance, see 
 Almond v. Almond, 4 Rand. 663, 15 Am. Dec. 781; Lang v. iLang, 
 supra, n. 38 L. R. A. (N. S.) 950; 7 Va. Law Reg. 219; 1 Bish. Mar. 
 Div. & Sep. 1386 ef seq. 
 
 ' Va.. Code 1919, § 5105. 
 
 ' As to what constitutes domicil and the distinction between "domi- 
 cil" and "residence", see Cooper v. Commonwealth, 131 Va. 338; 
 Towson V. Towson, 126 Va. 640, 651-65,4, where Burks, J., points out 
 that the statute under consideration exacts "domicil" for purpose of 
 jurisdiction, but fixes "residence" as the venue. As there shown, one 
 may have but one domicil at a time, but may have several resi- 
 dences — the latter usually connoting a much less permanent abode. 
 The topic is treated fully in 3 Bishop, Mar. Div. & Sep., chapters 
 
202 Equity* Pleading and Practice 
 
 be alleged and proved as a condition precedent to the mainte- 
 nance of the suit, or to the validity of the decree.^ 
 
 § 404. Suit money — preliminary orders for safeguard- 
 ing wife's interests. — The statute i" invests the court, or the 
 judge in vacation, with ample power "at any time pending the 
 suit, in the discretion of such court or judge" to "make any or- 
 der that may be proper to compel the man to pay any sums nec- 
 essary for the maintenance of the woman and to enable her to 
 carry on the suit, or to prevent him from imposing any restraint 
 on her personal liberty, or to provide for the custody and main- 
 tenance of the minor children of the parties during the pendency 
 of the suit, or to preserve the estate of the man, so that it be 
 forthcoming to meet any decree which, may be made in the suit, 
 or to compel him to give security to abide such decree." 
 
 These preliminary orders, or any of them, on a proper show- 
 ing made, supported by affidavit, may be entered in vacation, 
 and before the maturity of the suit — and, on like allegations and 
 like verification, even before process served ^^ and without no- 
 tice to the defendant, in analogy to a preliminary injunction. 
 Indeed, most of such orders would in fact be equivalent to an 
 injunction, mandatory or prohibitory, if not so in form and sub- 
 stance. 
 
 § 405. Institution and conduct of the suit. — In Vir- 
 
 " 2 Bishop, Mar. Div.-& Sep. 766; Yates p. Yates, 115 Va. 678; Blank- 
 enship v. Blankenship, 135 Va. 695; Towson v. Towson, supra. Though 
 the domicil of the husband usually fixes the domicil of the wife, yet 
 where the husband has abandoned the wife, or the wife has for good 
 cause separated from him, she may acquire a separate domicil of her 
 own for purposes of divorce. Steckel v. Steckel, 118 Va. 198. 
 
 " Va. Code 1919, § 5107. The statutory provisions here enumerated 
 are largely declaratory of the unwritten practice. 3 Bishop, Mar. 
 Div. & Sep. 463, 966-993, 1100-1113. 
 
 " But not, in Virginia, before process issued, since the statute au- 
 thorizes the exercise of these powers by the court or judge only 
 "pending the suit." § 5107. The provision for suit money for the 
 wife "to enable her to carry on the suit" is not in practice interpreted 
 as confined to a plaintiflf-wife only — -the generally accepted rule be- 
 ing to require the plaintiff-husband to provide suit money to the 
 defendant-wife, to enable her to lemploy counsel and otherwise make 
 proper defence, unless she be otherwise provided with funds. 3 
 Bishop, Mar. Div. & Sep. !965, 976. See the revisors' annotations to 
 Va. Code 1919, § 5107, for citation of various cases construing the 
 statute and adjudicating questions of alimony, teniporary and 
 permanent. 
 
Divorce Suits — Summons by Pubucation 203 
 
 ginia the statute ^^ declares that divorce suits shall be instituted 
 and conducted as other suits in equity, with the following ex- 
 ceptions : 
 
 1. The bill is never to be taken for confessed — that is, in de- 
 fault of defendant's appearance after due service of proc- 
 ess, the cause is simply set for hearing. 
 
 2. No decree of divorce may be granted on the uncorrobo- 
 rated testimony of the parties or either of them. 
 
 3. The cause is to be heard independently of the admissions 
 of either party, in the pleadi^jgs or otherwise. 
 
 4. No process or notice in such proceedings may be served in 
 this state, except by an officer authorized to serve the same. 
 
 § 406. The same — summons by publication. — Where 
 the plaintiff has acquired the prescribed one year's domicil in 
 this state, the court of the proper venue has jurisdiction of the 
 suit, notwithstanding the non-residence of the defendant. While 
 the decree in a divorce suit is, in a sense, personal, it is yet in 
 so far as concerns the divorce itself, in substance rather in rem 
 ■ — as affecting the civil status of the parties. ^^ Having properly 
 acquired jurisdiction of one of the parties (the plaintiff), the 
 court has the power, in spite of the absence of personal juris- 
 diction of the other, to determine the civil status of the plain- 
 tiff, though the defendant has been summoned by publication 
 only, and has not appeared. 
 
 § 407. Summons by publication — how issued and pub- 
 lished. — The order of publication is issued by the clerk on 
 proper affidavit of the non-residence of the defendant, either in 
 term or in vacation. In it must be stated "the object of the suit 
 and the grounds thereof as shown by said application" (sic) i*, 
 
 " Va. Code 1919, § 5106. Acts 1930, p. 503. 
 
 "^ See generally 2 Bishop, Mar. Div. & Sep. 23-37, 140-158, 550-558; 
 Atherton v. Atherton, 181 lU. S. 155; 2 Va. Law Reg. 46; 7 Va. Reg. 
 118, 137; 8 IVa. Law Reg. 826. lOf course, in so far as the decree is 
 personal^as requiring payment of alimony, surrendering control of 
 children in the custody of the absent defendant, etc. — it is inoperative 
 on a non-resident defendant not actually served with process within 
 the state, and not appearing. De La Montanya v. De La Montanya, 
 112 Cal. 101, 53 Am. jSt. IRep. 165, n; 'Bishop, Mar. Div. & Sep. ubi 
 supra. 
 
 " The italicized words are portions of a former statute amended 
 in the revisal, and obviously remaining here through inadvertence. 
 
204 Equity Pleading and Practice 
 
 and said order of publication shall be published as required by 
 law.i^ 
 
 ■Constructive service is also authorized by personal service on 
 the non-resident defendant in another state, by a private per- 
 son not interested in the suit, verified by a proper return under 
 oath. Such service is declared as having the same effect as an 
 order of publication duly executed. i® 
 
 § 408. The bill. — The bill in a nullity or a divorce suit is 
 drawn in much the same form as other bills in chancery. The 
 features of special importange in such bills, to which the atten- 
 tion of the young practitioner should be directed, are: 
 
 (1) In divorce suits, an allegation of the actual marriage of 
 the parties, with particulars as to the date, place, etc., together 
 with the maiden, or prenuptial, name of the wife. Divorce is 
 necessarily predicated on a previous valid marriage. 
 
 (2) The essential jurisdictional allegations, already noticed. ^'^ 
 
 (3) In case the wife is plaintiff and suit money or alimony 
 is desired, some account of the estate and income of the husband. 
 
 (4) The number, names, sex and ages of the living infant 
 children of the marriage; and the general circumstances of the 
 parties, financial or otherwise. 
 
 (5) The particulars of the matrimonial offense with which 
 the defendant is charged, and which are asserted as a ground 
 of the divorce sought. It is important that the circumstances 
 and nature of the offense or offenses be charged v/ith sufficient 
 particularity as to persons, time and places, to enable the de- 
 fendant properly to prepare to meet the charges in his or her 
 answer, and to secure proper testimony in defense. It is espe- 
 cially important here that the young practitioner should observe 
 the familiar rule of pleading that allegations of legal conclusions, 
 in the place of the facts from which such legal conclusions flow, 
 are inadmissible in pleading. 
 
 (6) By special statutory provision in Virginia,^* if the mar- 
 
 " Va. Code 1919, §§ 5108, 6O69-6070. 
 
 " Id. § 6071. 
 
 " Supra, §§ 401-403. 
 
 " Acts 19S0, p. 503. 
 
Divorce Suits — Naming Paramoue 205 
 
 riage occurred in this state, bills for divorce are required to be 
 accompanied by a certified copy of the marriage license, with a 
 copy of the celebrant's return thereon, indicating the time and 
 place of the marriage, "except where it is alleged in said bill 
 that such certified copy cannot be obtained, unless the same 
 shall have been lost or destroyed" (sic).^^^ 
 
 § 409. The same — how adultery charged. — Thus, for 
 example, where the gravamen of the bill is the adultery of the 
 defendant, the allegations of time and place should be as spe- 
 cific as possible, and the name of the paramour stated, if known, 
 and if unknown the bill should so allege.^? If the plaintiff is 
 unable to allege these particulars, the bill is prematurely filed, 
 since without them the bill is a mere "fishing bill." Ignorance 
 of these particulars indicates that the plaintiff knows little or 
 nothing of the facts of the case sought to be established against 
 the defendant, and lacks the evidence to establish them. 
 
 § 410. Further pleading's. — After bill filed, the further 
 pleadings and procedure are the same as in other suits in chan- 
 cery, with the exception, already noted,^'' that the bill is not 
 taken for confessed in default of defendant's appearance. 
 
 The defendant may either plead or answer. In case of the an- 
 
 ^^ The italicized phrase is a typical illustration of modern statutory- 
 draughtsmanship. 
 
 '" In justice to the defendant, naming the paramour, if known, 
 seems clearly essential; and the soundness of the rule is not doubted, 
 in spite of d-icta to the 'contrary in Miller v. Miller, 92 Va. 196, and 
 Farr v. Farr, 34 Miss. 597, 69 Am. Dec. 406, and perhaps a few other 
 cases, based on the suggestion that as the alleged paramour is not 
 a iparty to the suit, and has no opportunity ito be heard, the reputation 
 of an innocent person might thus be scandalized. But this suggestion 
 was anticipated long before by Dr. Lushington in Croft v. Croft, 3 
 Hag. Ecc. 310 (5 Eng. Ecc. Rep. 120), in the statement that "justice 
 must be done to suitors, so that it is impossible to exclude" [from the 
 pleading] "matter which ought to" be admitted in evidence, because 
 incidentally it may aflfect the character and involve the conduct of 
 those who are not parties to the suit." Mr. Bishop declares the 
 name of the paramour, if known, "the very gist of the description" 
 of the adulterous acts charged. 3 Bishop, IMar. Div. & Sep. 1333. 
 See Id. 1336 (form of allegation), and i576. See Wood v. Wood, 3 
 Paige 113; Marsh v. Marsh, 6 N. J. Eq. 391, 84 Am. 'Dec. 164; Starke, 
 2 Va. Law Reg. '69. As the name of (the paramour, if known, must 
 necessarily be brought out in the testimony, the privilege of omitting 
 it from the bill is, after all, an illusory protection to 'the paramour at 
 the expense of the defendant — thus presenting the anomaly of the 
 judicial sacrifice of the rights of a litigant, in a Vain effort to protect 
 the reputation of a stranger. 
 
 " Supra, § 1405. 
 
206 Equity Pleading and Practice 
 
 swer, the same rules are applicable as to answers in other eq- 
 uity suits, 21 except that no decree can be rendered on the un- 
 corroborated admissions therein. 22 
 
 § 411. The testimony — parties as witnesses. — -By the 
 
 common law, neither husband nor wife were competent wit- 
 nesses in a divorce suit brought by one against the other — nor, 
 indeed, in any case in which either was interested. The rule 
 has been altered in most of the states, though in Virginia it was 
 retained in divorce suits until the revisal of 1919, when hus- 
 band and wife were declared competent witnesses for or against 
 each other in all cases, ^^ with certain qualifications in criminal 
 cases. 2* But neither may, without consent of the other, "be ex- 
 amined in any case as to any communication privately made by 
 one to the other while married; nor shall either be permitted, 
 without such consent, to reveal in testimony after the marriage 
 relation ceases any such communication made while the mar- 
 riage subsisted. "25 
 
 § 412. The testimony, continued — how taken. — In 
 
 the absence of special provision to the contrary, the testimony in 
 divorce suits in equity is taken by depositions, as in other chan- 
 cery suits. And such was the practice in Virginia until altered 
 in 1914, by an act reproduced in the Code of 1919,26 pro- 
 viding that in any suit for divorce the trial court may require 
 the whole or any part of the testimony to be given orally in 
 open court — with the right of either party to require that such 
 testimony, and the court's rulings on exceptions thereto, shall 
 be reduced to writing. Such writing, when certified by the 
 judge, is declared as standing on the same footing as a deposi- 
 tion regularly taken in the cause. 
 
 § 413. The same— depositions in case matured by or- 
 der of publication. — Where the defendant has been summoned 
 
 ^ Latham v. iLatham, (30 Gratt. 307; Haynor v. /Haynor, 112 Va. 
 133; 3 Bishop, Mar. Div. & Sep. 778. 
 
 '^ Va. Code 1919, § 5106. 
 
 '^ § 6310, and revisors' note. 
 
 »* § 16211. 
 
 ^ § 6312. How far this provision would exclude communications, 
 "privately made," by the husband, for example, in the way of abuse, 
 insulting epithets, unfounded charges of infidelity, etc., is a question 
 for future judicial construction. 
 
 ^ § 5109. 
 
Divorce Suits — The Decree 207 
 
 by publication, and has not appeared, the statute "" provides 
 that no depositions shall be commenced until at least fifteen 
 days shall have elapsed after the order of publication shall have 
 been duly published as required by law. 
 
 It is further provided that in no case in which the defendant 
 has been summoned by publication and has not appeared, shall 
 it be necessary to make other publication or give other notice 
 in any proceeding in court, or before a commissioner, or for the 
 purpose of taking depositions, unless specially ordered by the 
 court — unless such defendant be represented by counsel resid- 
 ing in this state, of record or known to the plaintiff. In the lat- 
 ter case, reasonable notice of proceedings before the commis- 
 sioner, or of the taking of depositions, shall be given to such 
 counsel, or any of them, if more than one.^^ 
 
 § 414. The decree. — The court has a wide discretion in 
 the sentence of divorce, in making provision for alimony to the 
 plaintiff-wife, and for the custody and maintenance of the chil- 
 dren; and by the Virginia statute,^^ may make such further 
 decree as it shall deem expedient concerning the estate, and 
 maintenance of the parties or either of them. 
 
 It is also provided^" that the court may from time to time 
 afterwards, on petition of either of the parties, revise and alter 
 such decree concerning the care, custody and maintenance of 
 the children, and make a new decree concerning the same, as 
 the circumstances of the parents and the benefit of the children 
 may require. '^ 
 
 § 415. Modification of final decree for alimony by 
 reason of subsequent events.— Whether after final decree and 
 dismissal of the cause from the docket, the court may re-as- 
 sume jurisdiction of the case, and for good cause modify the 
 
 " Va. Code 1919, § 5108. 
 
 "= Va. Code 1919, § 6071. 
 
 "^ Va. Code 1919, § 5111. 
 
 =° Id. 
 
 " It seems there may be a decree for alimony though not specifically 
 prayed in the bill, since alimony is but an incident of the main 
 relief: 7 Va. Law Reg. 557; Haven v. Trammell '(Okla.), 193 Pac. 631; 
 Lynde v. Lynde, 162 N. Y. 405, 56 N. E. 979, 76 Am. St. Rep 332 
 48 L. R. A. 679. ■ 
 
208 Equity Pi:,eading and Practice 
 
 provisions of the decree for alimony and for the custody and 
 maintenance of the children of the marriage, is a question that 
 has received the attention and vexed the deliberations of the 
 courts in many cases. Efforts to secure such alteration arise 
 from various causes, many of them strongly appealing to the 
 sympathy of the court. 
 
 Where the circumstances of the parties have materially 
 changed since the decree, in a manner not to be foreseen at the 
 time of the decree — circumstances v^fhich, if they had existed at 
 the time, would have called for a wholly different provision for 
 alimony from that actually made — one or the other of the par- 
 ties will naturally clamor for a modification to conform more 
 equitably to the new situation. 
 
 Thus the husband's estate may subsequently have largely in- 
 creased in value — or, on the other hand, may, by reverses of 
 fortune, have been proportionately depleted. So the wife, by 
 inheritance, or otherwise, may have become possessed of a large 
 estate sufficient to provide a comfortable, or even luxurious, 
 living, or the same result has followed by her re-marriage to a 
 second husband; or, on the other hand, by reason of ill health 
 or other misfortune, the alimony allowed is insufficient for her 
 needs. Or, again, the wife may be living in unlawful relations 
 with a paramour, or otherwise leading a notoriously immoral 
 life. 
 
 Certainly in such changed circumstances there should be some 
 principle justifying a modification of the decree, to meet the al- 
 tered conditions, and some procedure by which this may be ac- 
 complished. 
 
 § 416. The same technical difficulties. — But the rule of 
 practice, both at law and in equity, that a final judgment or de- 
 cree, from which no appeal has been taken, may not be altered 
 except for errors of a limited class, and only within a very lim- 
 ited period of time, (as by bill of review in an equity case), 
 while in most cases a most desirable rule, has operated to hamper 
 efforts toward relief in the cases under consideration, and 
 many judicial efforts have been made to relax or distinguish 
 the rule in this class of cases. 
 
Divorce Suits — Modifying Finai, Decree 209 
 
 § 417. The same — situations distinguished — results. — 
 
 The most exhaustive and satisfactory treatment of the question 
 known to the author, is found in the scholarly opinion of Web- 
 ster, J., in Ruge v. Ruge,*^ of the Supreme Court of Washing- 
 ton. The court here examines and analyzes most of the cases, 
 English and American; and by like analysis and criticism, dem- 
 onstrates that the views of Bishop ^^ are not fully sustained by 
 the authorities cited by that distinguished author. 
 
 The conclusions announced by the court seem eminently sound 
 on principle, and, as demonstrated by the court, are sustained, 
 either consciously or unconsciously, by an overwhelming major- 
 ity of the American cases. 
 
 These conclusions are, in brief : 
 
 (1) Decree a mensa. — Where the decree is one a mensa, or 
 for separate maintenance only — and hence not affecting the mar- 
 riage status — the continuance of the marriage relation gives the 
 court a continuing jurisdiction to regulate the marital rights of 
 the parties ; and hence to modify the decree as new circum- 
 stances may demand. 
 
 (2) Decree for temporary aUmony. — Where the decree 
 awards temporary alimony only, or suit money, the power to 
 modify obviously exists pendente lite. 
 
 (3) Alim,ony for support of children. — So far as the ali- 
 mony decreed is for the benefit of the infant children of the 
 marriage, the latter, in a sense, continue under the protection 
 of the court; and the relation of parent and child continuing, 
 unaffected by the decree, gives the court continued jurisdiction 
 to modify the decree, wherever the interests of the children 
 require it. This jurisdiction is expressly conferred by the Vir- 
 ginia statute.** 
 
 (4) Reservation of further jurisdiction in decree. — Obvi- 
 ously, the jurisdiction to modify the decree exists, as in every 
 other case, where the court in its decree expressly reserves to 
 itself the further jurisdiction of the cause for siich alterations 
 and modifications as the court may thereafter deem proper. 
 
 " 165 Pac. 1063, L. R. A. IQITF, frsi, annotated. 
 " 3 Mar. Div. & Sep. 872. 
 ■" Va. Code 1919, § 3111. 
 
210 Equity Pleading and Practice 
 
 Such a reservation indicates "an unfinished determination of 
 the judicial mind," and that the court has not completely and 
 finally disposed of the case.^*^ 
 
 (5) Statutory authority to modify. — It is equally obvious 
 that the power to modify exists when given by express or im- 
 plied statutory enactment, as has been done in many states. 
 
 (6) Decree not within any of the five classes foregoing. — 
 But where the divorce is absolute, and the alimony awarded is 
 not temporary but permanent ; where there are no infant chil- 
 dren ; nor express reservation in the decree ; nor an enabling 
 
 ■ statute ; nor question of fraud or mistake such as would jus- 
 tify modification in other cases — then the decree for alimony 
 stands on the same footing as other final decrees, and is no more 
 su^)ject to modification than would a decree for a sum in gross, 
 whether for alimony or for a debt due by express contract.*^ 
 
 § 418. The costs. — The question of costs in divorce suits 
 is largely a matter of statute or of local practice. The Virginia 
 statute *^ declares that in such cases costs may be awarded to 
 either party as justice and equity may require. Since, however, 
 the husband is normally the chief or only source of the family 
 income, he is, in practice, generally required to pay the costs, 
 including fees of the wife's counsel, whether he be plaintiff or 
 defendant, and whether the decree be in his favor or that of the 
 wife. The court will however, take into consideration the suit- 
 money allowed to the wife pending the cause ; and if this was 
 
 "a See ante, § 288. 
 
 °° No Virginia case is known to have considered the question. 
 But assuming as we well may, that relief may be had in Vir- 
 ginia in classes 1 and 3 foregoing — as obviously it may under class 4, 
 and may not under class 15 (the Virginia statute § 5111, giving the 
 court authority thus to modify the decree, only as to custody and 
 maintenance of the children), and as it may not under class 6 — the 
 question of procedure becomes important. Assuming the decree to 
 have passed, by lapse of time, beyond the reach of a bill of review 
 or of an appeal (even if either of these were otherwise 'available for 
 the purpose indicated) the only practical relief would be by way of 
 an original bill. See ante, § 288. 
 
 In Sperry v. ISperry (W. Va.), 92 S. E. 574, the court recognized 
 the rule as stated, and reversed the decree because of the failure of 
 the lower court to make proper reservation in the decree. Relief 
 was granted in Emerson v. Emerson, 120 Md. 584, 87 Atl. 1033, but 
 rather on the provisions of the Maryland statute. 
 
 '° Va. Code 1919, § 5106; Acts 1920, p. 503. 
 
Divorce Suits — Costs 211 
 
 clearly intended to cover costs, including attorney's fees, no 
 further allowance will be made. The financial circumstances of 
 the parties are important considerations, particularly where the 
 wife's suit was not brought in good faith, or where the divorce 
 is granted to the husband for the wife's matrimonial delin- 
 quency.^'^ 
 
 § 419. Causes for divorce — substantive lavsr.— No ef- 
 fort has been made in this chapter to deal with the substantive 
 law of divorce, but the chapter is confined to the outline of the 
 pleading and practice only. For the substantive law, the student 
 is referred to his studies of Domestic Relations, and particularly 
 to Bishop's scholarly and exhaustive treatise on Marriage, Di- 
 vorce and Separation — one of the few modern text-books that 
 deserves such characterization. 
 
 '" See generally on this subject, 2 Bishop, Mar. Div. & Sep. 810- 
 820. 
 
212 Equity Pleading and Practice 
 
 CHAPTER XXX. 
 
 IV. Sale of Lands of Persons under Disability. 
 
 § 420. Equitable jurisdiction — statutory. — Whatever 
 may be the rule in the case of lands of lunatics and persons 
 non compotes, according to best authority courts of equity have 
 not inherent jurisdiction to sell, exchange, or incumber the lands 
 of infants, unless the same are held in trust. In the latter case, 
 under its long established jurisdiction over trusts generally, 
 there can be no douTbt of the ample power of equity to sell or 
 otherwise deal with the trust estate, whether belonging to in- 
 fants or adults.^ 
 
 Inasmuch, however, as the welfare of infant owners of land 
 often requires a sale or other disposition, statutes conferring the 
 necessary jurisdiction, and regulating its exercise, exist in all of 
 the states. 
 
 As these proceedings are, in general, statutory, their nature 
 depends in large measure on the terms of the particular statute 
 under which they are brought. But as the purpose of these 
 statutes is everywhere the same, and the temptation the same 
 for dishonest persons to take advantage of these helpless per- 
 sons, much similarity of procedure will be found to exist in the 
 several states. 
 
 § 421. The same — Virginia statutes — general pur- 
 poses. — The Virginia statutes provide for the disposition of the 
 estates of both infants and insane persons, and contemplate 
 two main purposes : 
 
 1. A disposition of the real estate (1) by a sale thereof, for 
 reinvestment of the proceeds; or (2) an exchange thereof for 
 other real property; or (3) for a lease thereof; or (4) an in- 
 cumbrance thereon for money borrowed for betterment pur- 
 poses, etc. — none of which purposes contemplates expenditure 
 of the corpus ^; and 
 
 2. A sale for the purpose of expending the proceeds, or a 
 
 " Rhea v. Shields, 103 Va. 305; Shirkey v. Kirby, 110 Va. 455. 
 ' Va. Code 1919, ch. 317. 
 
Sai,e of Infants' Land 213 
 
 portion thereof, for the maintenance of the lunatic ^ or his fam- 
 ily, or for the maintenance and education of the infant* 
 
 § 422. Nature of estate. — The statute in express terms 
 is applicable to estates of every character — the language being 
 "whether the estate of the minor, insane person or of any of 
 the persons interested, be absolute or limited, and whether there 
 be or be not limited thereon any other estate, vested or contin- 
 gent/' 5 
 
 § 423. Limited estate in infant — absolute estate sold. 
 
 — Where the estate of the infant in the subject-matter is a limi- 
 ted one, or is not a sole and absolute estate, the powers of the 
 court are not confined to a sale simply of the infant's interest 
 in the estate, but the court in such proceeding may sell the ab- 
 solute estate, though it may thus be disposing of the estate of 
 adults as well as that of the infants.® 
 
 1. Outline of the Procedure. 
 
 § 424. Outline of the procedure. — The subjoined outline 
 will indicate the chief features which must characterize the pro- 
 ceedings under these statutes. And as most of these provisions 
 are mandatory, as presently to be shown, it behooves the young 
 practitioner to give them his careful attention. 
 
 § 425. Venue of suit. — The suit must be brought "in the 
 circuit court of the county or the circuit or corporation court 
 
 ° Id. §§ 1055-1057 — a special proceeding, for details of which refer- 
 ence must be had to the sections cited. 
 
 * Id. § 5136 — the proceedings in which are required to conform to 
 those under chapter 217, considered in this chapter of the text. 
 
 Reference may be here made also to § 5161, authorizing the sale 
 of contingent estates, whether of infants or adults; § 5281, with respect 
 to partition of estates, whether of infants or of adults; § 6542, sale of 
 infant's homestead; §§ 5344-5345, authorizing the wife of an infant or 
 insane husband, whose lands have been sold by decree under chapter 
 46 or chapter 217 of the Code, to unite in the master's conveyance to re- 
 lease dower or other interest, with provisions for securing proper 
 compensation for the interest so released; § 5346, giving jurisdiction 
 to courts of equity to provide for releasing curtesy of insane husband, 
 or dower of insane wife, where the sane consort desires to sell his 
 or her real estate; § 5338, Acts 1930, p. 405, validating certain ir- 
 regularities in proceedings under chapter 217. 
 
 ° Va. Code 1919, § 5335. 
 
 ' Faulkner v. Davis, 18 Gratt. 653; Rhea v. Shields, 103 Va 305 
 309-310. ' ' 
 
214 Equity Pleading and Practice 
 
 of the corporation, in which the estate proposed to be sold ex- 
 changed, encumbered or leased, or some part thereof, may be." '' 
 Since this is a purely statutory proceeding, under a statutory 
 jurisdiction, and since, as will appear later, any material de- 
 parture from the statutory requirements will oust the jurisdic- 
 tion, it is clear that the jurisdiction here cannot be exercised by 
 the court of any other county or corporation than as here pre- 
 scribed. Here venue and jurisdiction are coterminous.* 
 
 § 426. Proper plaintiff. » — In these cases suit may be 
 brought only by (a) The guardian of any infant in interest, or 
 (b) The comndttee of any insane person in interest — or (c) 
 If the estate be held in trust, suit may be by (1) the trustee or 
 trustees, or (2) any beneficiary. 
 
 § 427. The biU — essential allegations and character- 
 istics, i" — The bill must show: (1) A plaintiff or plaintiffs with 
 proper statutory authority, as explained in the preceding sec- 
 tion; (2) the proper venue, as indicated above; (2) "plainly all 
 the estate, real or personal, belonging to such infant or insane 
 person, or so held in trust — that is, not only the estate sought 
 to be sold, but all other estate belonging to the infant, or insane 
 person;" (4) a description of the property to be sold, exchanged, 
 
 ' Va. Code 1919, § 5335. 
 
 ' See Limited Statutory Jurisdiction, ante, § 18 et seq; infra § 437. 
 
 ' Va. Code 1919, § 5335. 
 
 '° Va. Code 1919, § 5335. The reasons for requiring these details 
 are obvious. The plain policy of the statute is that there shall be 
 no conversion, complete or partial, of the real property of those who 
 are under guardianship and unable to care for their own interests, 
 except where such conversion is clearly to their advantage. In order 
 to determine this vital question, the court must be advised of all the 
 circumstances surrounding the infant or lunatic and his estate, so as 
 to be able inteUigently to consider the whole situation, and afiford 
 complete protection to all parties concerned. Hence the detailed 
 information called for. 
 
 Since the infant is incapable of making a will of realty before 
 majority, and the insane person is wholly incapax testandi, the pro- 
 spective heirs and distributees have a special (if not anxious) inter- 
 est in maintaining the integrity of the estate. It is eminently proper, 
 therefore, for the safeguarding of their own interests, as well as 
 those of the infant or insane person, that these kindred should be 
 made parties and given opportunity to be heard. 
 
 Where father and mother, as trustees, are plaintiffs, they are 
 properly in the suit as heirs and distributees of their infant children. 
 Lancaster v. Barton, 93 Va. 615. 
 
Sale of Infants' Land — The Bill 215 
 
 etc.; (5) the character of the infant's or insane person's hold- 
 ing — whether in trust or otherwise, and whether as sole owner 
 or jointly with others named, and the nature of the estate, 
 whether in absolute estate or otherwise; (6) "all the facts cal- 
 culated to show the propriety of the sale, exchange, encum- 
 brance or lease" — which would include the ages and general 
 circumstances of the infant or insane parties ; (7) the purposes 
 to which the proceeds of the sale, encumbrance, etc., are to be 
 devoted. (8) The infant or insane parties, or the beneficiaries 
 of the trust, as well as the trustee or trustees when these are not 
 parties plaintiff, and all other persons interested in the estate, 
 must be made parties defendant, as well as (9) "all those who 
 would be the heirs or distributees of the infant or insane de- 
 fendants, if all such infant or insane defendants were dead." 
 Further, the bill (10) should allege that by the proposed sale, 
 exchange, etc., the interest of the infant or insane defendant or 
 defendants, will be promoted, and that the rights of no person 
 will be violated thereby; and, finally (11) the bill must be ver- 
 ified by the oath of the plaintiff .'^'^ 
 
 § 428. Verification of bill. — Ordinary bills in chancery 
 require no verification — or, in the few cases where required, 
 the verification may usually be made by any person cognizant of 
 the facts. Here, however, to indicate good faith on the part 
 of the plaintiff in his capacity as representative of the infant or 
 insane person, the bill must be verified by oath of the plaintiff, 
 and no substitute is permissible. 
 
 § 429. Guardian ad litem. — Before any steps are taken 
 in the suit there must be a guardian ad litem appointed for each 
 infant or insane defendant.^^ 
 
 ■'' In Lancaster v. Barton, supra, it was held that an affidavit 
 which failed to show that it was made by the plaintiff, might be 
 supplemented by proof aliunde, in a collateral attack on the decree of" 
 sale. See also Durrett v. Davis, 24 Gratt. 302, 310-311. 
 
 " Va. Code 1919, § 5337 — who must be "a discreet and competent 
 attorney at law if one be found willing to act:" § 6098'. As to his 
 appointment, service of process, etc., see ante, § 106. He has no power 
 to make admissions, whether in pais or. of record, which will bind the 
 infant. He may not consent to a decree on the merits, or waive 
 proofs: infra, § 431; Dangerfield v. Smith, 83 'Va. 81, 91; Waterman v. 
 Lawrence (Cal.), 79 Am. Dec. 312. But he may consent to mere 
 
216 Equity Pleading and Practice 
 
 § 430. Required answers. — There must be the following 
 answers, and their presence in the record is mandatory :^^ 
 
 (a.) Answer of the guardian ad litem, in proper person, and 
 on oath.'^* 
 
 (b) Answer of the infant, or insane person, by the guardian 
 ad litem, and (by the safer practice) under oath of the 
 latter.15 
 
 (c) If the infant be over fourteen years of age: Answer 
 of the infant in proper person, and on oath.^^ 
 
 § 431. The evidence — depositions. — The necessary facts 
 must be proved by testimony of witnesses independently of any 
 admissions in the answers. No depositions may be read unless 
 
 matters of procedure not affecting the substantial rights of the infant 
 — as by consent to a hearing in vacation, etc.: Kingsbury v. Buckner, 
 13.4 U. S. 678, 681; Lemmon v. Herbert, 93 Va. 633. 
 
 "^ Va. Code 1919, § 5337; infra, § 437. 
 
 " Since various oaths required in these proceedings are demanded 
 by the statute, they are not the subject of waiver. The purpose of 
 requiring an answer in proper person from the guardian ad litem (an 
 innovation in the equity practice) as to have an expression of his per- 
 sonal knowledge of the facts alleged in the bill, and of the circum- 
 stances surrounding the infant, and of his judgment as to the pro- 
 priety or impropriety of the sale or other object sought by the bill. The 
 statute evidently does not contemplate . here a merely formal or 
 perfunctory answer from the guardian ad litem. , 
 
 The purpose of the oath is not to afford evidence (as the case must 
 be proved independently of the pleadings) but to guarantee good 
 faith on the part of the guardian ad litem. 
 
 ^ The statute does not in terms call for this answer, but as it is 
 not usual or necessary, in this state to serve process on infants (see 
 ante, § 60, et seq.), without such an answer the infant (particularly if 
 he be under fourteen years of age, for whose appearance in the suit 
 no other method is provided) would not properly be a party to the 
 suit — since he becomes a party in such case only by the filing of an 
 answer in his own name by his guardian ad litem. The oath here 
 is not in terms required, but as the rules of the forum require all 
 answers to be verified, caution suggests that it be not omitted. But 
 such oath is not believed to be essential. It is vital, however, that 
 the answer of the infant or lunatic should be in his own name, by 
 guardian ad litem, and not in the name of the latter on behalf of the 
 ward. See ante, ^ j.04, et seq. See curative statute, (Va. Code 1919, 
 § 5334, Acts 1920, p. 405) indicating the necessity for such answers 
 in the future. 
 
 " This is a wise provision, giving the infant himself opportunity, 
 after he has presumably 'reached some degree of mental maturity, to 
 express his own judgment aijd wishes with respect to the proposed 
 conversion of his property. If the infant be beyond 'the limits of the 
 commonwealth, or insane, or confined in a reformatory or prison, 
 the answer in proper person is not necessary. Va. Code 1919, § 5337. 
 
Salb of Infants' Lands — The Decree 2.17 
 
 taken in the presence of the guardian ad litem, or on interroga- 
 tories agreed upon by him.^'^ 
 
 § 432. The decree. — "If it be dearly shown," declares 
 the statute, "independently of any admissions in the answers, 
 that the interests of the infant, insane person, or beneficiaries in 
 the trust, as the case may be, will be promoted, and the court 
 is of opinion that the rights of no person will he violated there- 
 by, it may decree a sale of said estate, or any part thereof," 
 etc.18 
 
 § 433. The sale. — It is provided that neither the guardian, 
 guardian ad litem, committee (of the insane person), the trus- 
 tee, nor the lessee, shall become a purchaser directly or indi- 
 rectly.^^ 
 
 " See Coleman v. Virginia Stave Co., 113 (Va. 61, and Wheeler v. 
 Thomas, 116 Va. 359, where 'the decrees iwere held void and subject 
 to collateral attack, for a violatfon of the fundamental rule that the 
 essential facts of a case, and particularly in these proceedings, may not 
 be established by ex parte affidavits. Affidavits were rejected also in 
 Smith V. White, 107 Va. 616. 
 
 The requirement of the guardian ad litem's presence here is an ad- 
 ditional safeguard against wrong to the infant or lunatic, in that it 
 at least brings home to the guardian ad fitem the nature of the testi- 
 mony to be submitted, and if !he be (faithful to his trust the testimony 
 will be more thoroughly sifted. 
 
 " Va. Code 1919, § 5348. It is to these inquiries that the testimony 
 will mainly be directed. The necessary facts may be established 
 either by a reference to a jmaster to ascertain and report them, or 
 by depositions properly taken and read by the court. The statutory 
 rule that a master's report must lie ten days Ifor exceptions, is held 
 (on not entirely satisfactory reasoning) to have no application to 
 this proceeding. Lancaster v. Barton, 92 Va. 615. It is scarcely nec- 
 essary to suggest that the decree should plainly indicate that the 
 required conditions precedent were fulfilled — namely: "It being 
 clearly shown, independently of any admissions in the answers, that 
 the interests of the infant defendant will be promoted by what fol- 
 lows, and that the rights of no person will be violated thereby, the 
 court doth adjudge, order and decree," |etc. Indeed, the careful 
 practitioner who appreciates the spirit of the statute, and its judicial 
 interpretation, will be careful to recite in the decree, in detail, the 
 observance of all the essential statutory requirements. 
 
 " Id. § 6341. As indicated in a previous section, though the in- 
 terest of the incompetent be a partial or limited estate, the court 
 may, and should ordinarily, -decree a sale of the entire or adsolute 
 estate. The court in such proceeding has jurisdiction to confirm a 
 conditional sale of the property privately made on (behalf of the 
 beneficiary or beneficiaries, if satisfied by testimony, taken as required 
 by the statute, that such sale is to the interest of the incompetent 
 parties. Smith v. White, 107 Va. 616. 
 
218 Equity Pi,eading and Practice 
 
 § 434. The proceeds.-^Careful and minute provisiors are 
 made for the safe reinvestment or other proper disposition of 
 the proceeds of sale, incumbrance, etc., under the supervision 
 of the court. The proceeds, representing as they do the corpus 
 of the infant's real property, do not pass into the hands of the 
 guardian, but are managed by a receiver or other person ap- 
 pointed by the court for the purpose, who is required to give 
 ample security for the faithful discharge of his duties.^" 
 
 § 435. The same — proceeds under $500. — In keep- 
 ing with the wise policy of eliminating the necessity, and the ac- 
 companying expense, of a guardian, where the estate of the in- 
 fant is small, the statute ^i further provides that "wherever it 
 shall appear to a court having control of a fund, or supervision 
 of its administration, whether a suit be pending therefor or not, 
 that an infant is entitled to a fund arising from a sale of lands 
 for a division or otherwise, or as distributee of any estate, and 
 the amount to which said infant is entitled is less than $500.00, 
 it shall be lawful for the said court, without the intervention of 
 a guardian, upon its being made to appear to said court that the 
 said infant is of sufficient age and discretion to use said fund 
 judiciously, to cause said fund to be paid directly to said in- 
 fant" — with further provision for payment to the parents for 
 use of the infant where the latter is of tender years and in- 
 capable of handling the fund. 22 
 
 "" Va. Code 1919, § 5343 — with the further provision that "nothing 
 herein contained shall prevent the court having charge of any of 
 such funds from applying at any itime kll or any portion thereof to 
 the proper needs and requirements of any such ward or insane per- 
 son." 'Cf. 'id. § ssae. 
 
 " Id. 
 
 ^ It will be observed that ,this iiprovision applies not only to funds 
 derived from a sale or other disposition of the infant's property under 
 this chapter, but to any case in which any fund belonging to an in- 
 fant, not exceeding the limited amount mentioned, is under the 
 "control or supervision" of the court. Compare a kindred, but dis- 
 similar, provision in § 5281, where the fund is derived from a sale for 
 pairtitibn. As i§ 5242, quoted above, applies in express terms to a 
 fund "arising from a sale of lands for a division, or otherwise," there 
 seems a conflict between the two sections. 
 
 Should the infant die during non-age, or the insane person without 
 recovering his sanity, so much of the fund received under this chapter 
 (317), or as the result of a sale in partition proceedings under 
 chapter 314, will pass to such persons as would have been entitled 
 to the land if it had not been sold or divided: id. § 5347. In other 
 
Sale of Infants' Lands — Strict Procedure 219 
 
 2. Interpretation of Statute — When Liberal — When Strict. 
 
 § 436. (1) Liberal as to subject-matter. — As these 
 provisions are meant to supply a need for which the unwritten 
 law did not provide, and are highly remedial in their nature, 
 they are to be liberally construed in support of a clearly defined 
 legislative policy, so far as concerns the subject-matter of the 
 several statutes. ^^ 
 
 § 437. (2) Strict as to procedure. — In supplying a 
 right which the common law did not. afiford,' the legislature, in 
 providing the proper machinery for its exercise, has been care- 
 ful to place every reasonable safeguard around the helpless per- 
 sons whose inheritances are thus permitted to be aliened or en- 
 cumbered without their concurrence, and who are without abil- 
 ity to protect their own interests. 
 
 As a purely statutory right, it must, in accordance with the 
 settled rule of construction, be exercised in substantial compli- 
 ance with the statutory remedy — and any material departure 
 from the procedure as prescribed by the legislature will render 
 the proceeding not only voidable but void, and therefore subject 
 to collateral attack. The exercise of this jurisdiction by courts 
 of chancery is not under their general equitable jurisdiction, but 
 under a special, statutory and limited jurisdiction — and a fail- 
 ure to exercise the power substantially as given will be fatal to 
 the proceedings. 2* 
 
 words, the fund derived from such sales, though in form personal 
 •estate, is treated, during the period of infancy or insanity, as realty, 
 just as if conversion had not taken place. 
 
 The provisions of § 5340, with reference to mortgaging the estate 
 of an incompetent for betterment purposes, seems to afford quite 
 inadequate protection to the lender — whose lien is confined to the 
 increment of value produced Iby ^he improvements made, and is made 
 subordinate to the right of 'the infant to demand, out of the proceeds 
 of sale, on foreclosure, an amount equal to the original value of the 
 estate, anterior to the execution of the 'incumbrance. Such an invest- 
 ment will scarcely prove attractive to careful investors. 
 
 '^ Faulkner v. Davis, 18 Graft. 651, 669-670; .Rhea m. Shields, 103 
 Va. 305; Coleman v. Virginia Stave Co., 113 Va. 61. 
 
 " Williamson v. Berry, 8 How. CU. S.) 495; In re Valentine, 72 
 N. Y. 186; Battell v. Torrey, 65 N. Y. 296;' Roche v. Nesters, 72 Md." 
 3'64, 7 L. R. A. 533; Coleman to. Virginia Stave Co., 113 Va. 61; Bren- 
 "ham V. Smith, 120 Va. 30; Roberts v. Hagan, 131 Va. 573; Watkins 
 ■v. Ford, 133 Va. 268; Parker v. Stephenson, 127 Va. 431; Hoback v 
 Miller (W. Va.), 39 S. lE. 1014. See ante, § 18 et seq. See Rhea v 
 
220 Equity Pleading and Practice 
 
 It should be observed, however, that these statutes have in 
 no wise affected the ancient jurisdiction of equity over trust 
 estates, even though held by infants. If, therefore, the estate 
 be in trust, the jurisdiction to decree a sale when the interests 
 of the beneficiaries require it, is not dependent on these stat- 
 utes, which merely afford an additional remedy. Hence trust 
 estates of infants or insane persons may be sold or encumbered 
 under decree of the court of chancery without complying with 
 the statutory proceedings. ^^ 
 
 3. The Title of a Bona Fide Purchaser. 
 
 § 438. The same — how far bona fide purchasers pro- 
 tected. — The principle here is well expressed by Buchanan, J., 
 in Coleman 'v. Virginia Stave Co. : ^® "While the purchaser at 
 such a sale is not bound to investigate the truth of the matters 
 stated in the bill and deposed to by the witnesses, touching the 
 estate owned by the infants, or as to the propriety or necessity 
 of the sale, since his title cannot be affected because the case 
 made by the record happens not to be warranted by the facts, 
 (Durrett v. Davis, 24 Gratt. 302, 308), yet he is required to 
 see to the regularity of the proceedings upon which the juris- 
 diction of the court is founded (s. c.) ; for he is presumed to 
 know that the infant until six months after his maturity has the 
 right to show cause against the decree of sale, for errors upon 
 the face of the record, or to show that the court has no juris- 
 diction to enter the decree, or, if it had jurisdiction, that the 
 proceedings were irregular and not binding upon the parties, or 
 
 Shields, 103 Va. 305, 313 — a case in which the court found the trustee 
 plaintiff and his counsel guilty of gross imposition upon the cestui 
 que trustent under cover of these statutes, but was unable ito give re- 
 lief because the proceedings were substantially regular, and the 
 property had passed into the hands of bona fide purchasers. "The 
 developments in this case" said Whittle, J., "accentuate the neces- 
 sity for the exercise of such vigilance on the part of trial courts, in 
 dealing with this class of cases, as will render the recurrence of sim- 
 ilar results impossible; otherwise a benign statute specially enacted 
 ■ for the protection of the unfortunate may be converted into an in- 
 strument for their destruction." 
 
 " Shirkey v. Kirby, 110 Va. 455, 457. Sed quere. 
 
 " 112 Va. 61, 77. 
 
Sale of Infants' Land 221 
 
 that the case made by the record did not warrant the decree." ^'^ 
 
 S 439. Right of infant to show cause against the de- 
 cree. — As heretofore indicated, under a long-settled rule of the 
 chancery courts, infants have six months after attaining their 
 majority within which to assail the validity of decrees affecting 
 their rights — a privilege which formerly it was error not to re- 
 serve to them on the face of the decree, but now reserved to 
 them by statute in Virginia, even though omitted from the de- 
 
 " In this case there was almost a comedy of errors — though to 
 the purchaser, who lost both his purchase-money and the property 
 purchased, it was m.ore nearly a tragedy. The bill failed to men- 
 tion what bther property the infants owned, there was no answer by 
 the guardian ad litem in proper person, and affidavits instead of dep- 
 ositions were resorted to to show the propriety of the sale, for these 
 and other irregularities, the decree was successfully assailed by one 
 of the infants, in an independent suit against the purchaser of the 
 property — the court holding that the decree was void. The case of 
 Wheeler v. Thomas, 116 Va. 259, illustrates even greater irregularities, 
 with like fatal results. Cf. Rhea v. Shields, 103 Va. 305. 
 
 See authorities in n. 23 supra, for illustrations of similar fatal errors 
 — most, if not all, of them iset oip in collateral attacks on the decree. 
 In Parker v. Stephenson, supra, the infant plaintiff in equity, col- 
 laterally assailing a mortgage placed on his estate under defective 
 proceedings, was required to account to the bona fide purchaser under 
 foreclosure proceedings, for the purchase money, as a condition of 
 equitable relief. 
 
 It is clear that irregularities in these proceedings' cannot be waived 
 by the incompetent or his representatives. He is presumed to be 
 objecting at every point and no demurrer is needed to protect him 
 from defective allegations of the bill. Parker v. Stephenson, supra. 
 
 As to the rights of a purchaser at a judicial sale, where the de- 
 cree is subsequently reversed, see Va. Code )1919, § 6306; see Judicial 
 Sales, ante, ch. xxi. 
 
 ^ Va. Code 1919, § 6305. The cause or causes which may thus be 
 shown as against a bona fide purchaser of the property sold under 
 the decree, are indicated in the foregoing section — and are confined, 
 in the main, to matters affecting the ijurisdtction of the court, the 
 regularity of the proceedings, and the good faith of the purchaser, and 
 always to matters existing at the time of the decree of sale, and do 
 not extend to circumstances subsequently arising. See Decrees, ante, 
 ch. xx; Durrett v. Davis, 24 Gratt. 302; Zirkle v. McCue, 36 Gratt. 
 517, 527; .Lancaster v. Barton, 93 Va. 633; Coleman v. Virginia Stave 
 Co., 112 Va. 161; Asberry v. Mitchell, 131 Va. 276. 
 
222 Equity Pleading and Practice 
 
 CHAPTER XXXI. 
 V. Creditors' Bills. 
 
 § 440. Creditors' biUs — distinctive feature. — The dis- 
 tinctive feature of a creditors' bill is that its purpose is not, 
 as in an action at law, to obtain a personal judgment or decree 
 against the debtor, but specifically to subject the debtor's prop- 
 erty to an already existing charge or lien thereon — as by judg- 
 ment, mortgage, or other in rem claim — for the enforcement of 
 which there is no adequate remedy at law.^ 
 
 It is a settled principle both of law and equity (save where the 
 rule is changed by statute, as has been done in a few cases), "that 
 every debtor, until his property is specifically bound to the sat- 
 isfaction of his debt by his own agreement or by some judicial 
 or other legal proceeding, has an absolute right to dispose of it 
 at pleasure; a power which no tribunal whatever has authority 
 to control or limit. The obligation of a debtor is purely per- 
 sonal, and in no way affects his property or any portion of it. 
 To this rule no solitary exception can be found, nor can one 
 exist, until the principles of our law are so changed as to au- 
 thorize courts of equity to administer the estates of living per- 
 sons as if they were dead." ^ 
 
 § ii0y2. The same — distinctive feature, continued. — 
 
 Since, therefore, one's property can be charged only through 
 his person, courts of equity refuse to entertain bills thus to 
 charge a debtor's property, unless the debtor himself has already 
 voluntarily charged it in favor of the creditor, or unless the 
 charge grows out of a trust, or of a statute, or, in the absence 
 of these, unless the creditor has proceeded against the person 
 of the debtor at law, and has exhausted all his legal remedies 
 against him. The usual proof required to establish the ex- 
 
 ' In short, to subject what may be termed equitable assets. 
 
 ' Green, J., in Tate v. Liggatt, a Leigh 84, 99-100. To the same 
 effect, Carr, J., in fRhodes v. Cousins, 6 Rand. 209, 211. Attachment 
 proceedings under statutory provisions, and proceedings in bank- 
 ruptcy, are notable exceptions. 
 
Creditors' Bills — General Creditors 223 
 
 haustion of legal remedies is a judgment on which execution 
 has been issued and returned no effects. 
 
 It follows, under the general rule, that if the claims asserted 
 in the bill are not already specific charges upon the property 
 of the debtor, there must be such judgment, execution and re- 
 turn, as a condition precedent to the maintenance of a creditors' 
 bill 
 
 We may say, therefore, that the distinctive and essential fea- 
 ture of a creditors' bill is that its purpose is, in general, (1) to 
 subject the debtor's estate, or some part of it, to a specific and 
 existing charge thereon — for the enforcement of which charge 
 there is no convenient remedy at law; or (2), to obtain the aid 
 of the court in subjecting to the satisfaction of the plaintiff's 
 judgment, upon which execution has been issued and returned 
 no effects,^ the whole or some part of the debtor's estate, which, 
 because of its equitable nature or otherwise, cannot he reached 
 by execution at law* 
 
 1. Bills by General ^ Creditors. 
 
 § 441. The same — bills by creditors at large — excep- 
 tional cases. — While the rule, as shown in preceding sections, 
 is that creditors at large (also termed 'general creditors') can- 
 not be entertained in equity for the subjection of their living 
 debtor's estate to payment of debts, there are a few exceptions 
 as the result of necessity or of statute. 
 
 Thus, as indicated more at large in a subsequent section, 
 statutes in some of the states permit general creditors to assail 
 
 ° By virtue of statute in Virginia (Code 1919, § '6472), the lien of a 
 judgment on real property may be enforced in equity without issu- 
 suance or return lof the execution. Price v. Thrash, 30 Gratt. 315; Sto- 
 vall V. (Border Grange Bank, 78 Va. 188. In Virginia the creditor is 
 not required to exhaust the debtor's personal estate before pro- 
 ceeding against the real property. Rush v. Dickenson County Bank, 
 138 Va. 114. 
 
 * See generally on the subject: Tate v. Liggatt, 3 Leigh 84; 
 Spindle v. Fletcher, 93 Va. 186; Freedman's Bank v. Earl, 110 U. S. 
 710; Gates v. Allen, 149 U. S. 451; Guggenheimer v. Lockridge, 39 
 W. Va. 457; note to Suckley v. Rotchford, 13 Gratt. 73 (Va. Rep. 
 Ann.); Flemming v. Grafton, 54 Miss. 79; 12 Cyc. 1; note 63 L. R. 
 A. 673; note 90 Am. Dec. 388-300; Lile, Notes on Equity Jurispru- 
 dence (ed. 1931), p. 317, et seq.; cases infra. 
 
 ° That is, creditors who have not reduced their claims to judg- 
 ment, or who are not otherwise in rem creditors. 
 
224 Equity Pi<eading and Practice 
 
 voluntary or fraudulent transfers of property by their debtor. 
 
 So it is held also that where a corporation is insolvent, and has 
 been abandoned by its officers and agents, creditors at large may 
 maintain a bill for the conservation of its assets and their ap- 
 plication to payment of debts.® 
 
 It follows, save in exceptional cases, that general creditors 
 of a living person,'^ or of an existing corporation,® cannot main- 
 tain a creditors' bill. 
 
 § 442. The same — exception where no judgment pos- 
 sible. — In spite of the general rule as indicated, exception is 
 necessarily made where to insist upon the rule would amount to 
 a denial of justice. Thus where by reason of peculiar circum- 
 stances no judgment at law can be obtained against the debtor — 
 as where the latter has absconded, so that no process can be' 
 served on him, and the property sought to be subjected cannot 
 be reached by attachment under the local statutes — equity will 
 entertain a bill by a general creditor.^ 
 
 § 443. The same— assailing fraudulent conveyances. — 
 
 In the absence of an enabling statute, creditors at large cannot 
 maintain a bill to assail conveyances made by their debtor in 
 fraud of creditors. If the claims are not already specific charges 
 
 ' Finney v. Bennett, 27 Gratt. 365; Nunnally v. Strauss, 94 Va. 
 255. And so, where, by reason of the dissolution of the corporation 
 no action at law can be maintained against it (in absence of an en- 
 abling statute). Pullman v. Stebbins, 51 Fed. 20. 
 
 ' Where the debtor is dead, all debts created in his lifetime nec- 
 essarily become specific charges on his estate — that is, in rem claims 
 — since, they can no longer be asserted in personam. The jurisdic- 
 tion of equity, therefore, to maintain creditors' bills for an account- 
 ing from the personal representative and heirs, and the payment of 
 the decedent's debts out of his estate, is unquestioned. See Catron 
 V. Bostic, 123 Va. 355. 
 
 ' Va. Pass. & Power Co. v. Fisher, 104 Va. 121; Hollins v. Brier- 
 field Coal Co., 150 U. S. 371. But where the aflfairs of a corporation, 
 or partnership, or other association, are being wound up in an equity 
 proceeding, brought by lien creditors, shareholders, members or other 
 parties in interest, general creditors may come in under an order 
 of reference and prove their claims — since the winding up necessarily 
 requires that all liabilities be represented. The latter may not orgi- 
 nate the proceeding, but are usually permitted to intervene in the 
 special instances mentioned, and prove their respective claims. Infra, 
 § 451. 
 
 ' Merchants Bank v. Paine, 13 R. I. 592 (excellent discussion). See 
 Peay v. Morrison, 10 Gratt. 149; supra n. 6. 
 
Creditors' Bills — Parties Plaintiff 225 
 
 on the property, there must be judgment and execution re- 
 turned nulla bona, as a condition of maintaining a bill to assail 
 the transaction.!'' 
 
 In some of the states (among them Virginia and Mississippi) 
 statutes have been enacted expressly authorizing creditors at 
 large to maintain such suits. 
 
 § 444. The same — fraudulent conveyances — the Vir- 
 ginia statute. — By the Virginia Code " it is provided that 
 creditors may file a bill to set aside voluntary or fraudulent con- 
 veyances by their debtor, not only before obtaining judgments 
 at law, but even before their debts have matured. 
 
 The statute ^^ further fixes the priorities of the different cred- 
 itors by declaring that the plaintiff shall have a lien from the 
 time of bringing his suit ; and a petitioning creditor from the time 
 of filing his petition (in court or in the clerk's office). 
 
 2. Proper Parties. 
 
 § 445. Creditors' bills, continued — proper plaintiffs. — 
 
 Any creditor whose claim presents the essential characteristics 
 indicated in the preceding sections, may file a creditors' bill to 
 subject any of the property of his debtor liable to be thus 
 charged. 
 
 Such a bill may be filed by (1) a single creditor for his own 
 benefit or (2) several creditors may unite in the same bill, how- 
 soever disconnected their several claims, provided the claims are 
 chargeable on the same estate; or, again, (3) one or more cred- 
 itors may -file the bill "on behalf of themselves and all other 
 creditors similarly situate'd, who may come in and contribute to 
 the costs of this suit." 
 
 § 446. The same — general creditors' bill. — Where the 
 bill is thus filed on behalf of the plaintiffs and others who may 
 come in, it is known as a general creditors' bill. But although 
 filed on behalf of the plaintiffs only, if it appear that there are 
 
 '" Tate V. Laggatt, 2 Rand. 84 (full discussion) ; Gates v. Allen, 
 149 U. S. 449' (federal equity jurisdiction declined, though authorized 
 by state statute) ; Fleming v. Grafton, 54 Miss. 79. 
 
 " § 5186. 
 
 "" For a more detailed notice of this statute, see the author's Notes 
 on Equity Jurisprudence (ed. 1931), ch. xix. 
 
226 Equity Pleading and Practice 
 
 other creditors who are entitled to enforce specific charges upon 
 the subject-matter, they will be permitted, and sometimes re- 
 quired, to come into the suit, which will then, so far as that 
 proceeding is concerned, be treated as a general creditors' bill.^^ 
 The reason for thus sanctioning the assertion of diverse claims 
 in the same suit, in apparent violation of the strict and salutary- 
 rule of equity pleading that bills must not be multifarious — 
 tantamount to a misjoinder at law — is, not that such a proceed- 
 ing obviates a multiplicity of suits (as the student is apt errone- 
 ously to assume) but that it enables the court completely to ad- 
 minister the assets or estate against which the proceeding is 
 directed; and hence all who are entitled to share in the distribu- 
 tion are proper, and in many instances necessary, parties to the 
 suitM 
 
 § 447. The same — parties defendant. — As a general rule, 
 it is not necessary nor, indeed, proper, to make other creditors 
 parties defendant; but the debtor himself, and all other persons 
 having a legal or equitable interest in the estate sought to be 
 subjected, other than creditors, are necessary or proper parties 
 defendant. As we shall hereafter see, creditors not named in 
 the bill may become parties by petition, or by proving their 
 claims under the order of reference. 
 
 Where, however, the legal title to the subject-matter is out- 
 standing in one or more of such creditors, {e. g. as moFtgagees) 
 or in a trustee in his or their behalf, it is at least proper, and 
 the better practice, to make such title-holder a party defendant 
 — since the court must needs have control of the legal title, par- 
 ticularly where the subject-matter consists of real property. 
 
 § 448. The same — how other creditors become par- 
 ties. — ^Creditors, not otherwise appearing as parties plaintiff or 
 defendant, may come into the suit either (1) by-petition, or (2) 
 
 '^ The term "general" in connection with creditors' suits is used 
 in two distinct senses. A "general creditor" is one whose claim is 
 not in judgment, or not otherwise a lien, and who therefore may 
 not maintain a creditors' bill — whereas, the expression "general cred- 
 itors' bill" (or "general creditors' suit") denotes a bill or suit for the 
 benefit of all lien creditors (and not "general" creditors) of the com- 
 mon debtor. See Order of Reference, infra, §§ 449-452. 
 
 " Almond v. Wilson, 75 Va. 613; McClannahan v. N. & W. R. Co., 
 118 Va. 388; Freedman's Savings Bank v. Earle, 110 U. S. 710. 
 
Creditors' Bii^ls — Order of Reference 227 
 
 by proving their claims before the master under the order of 
 reference. 
 
 It seems scarcely necessary to add that the right thus to come 
 into the suit, after bill filed, is confined to those creditors whose 
 claims are of such a nature that they might have been asserted 
 by original bill — that is, in rem creditors — save where under 
 special circumstances the order of reference otherwise directs.^^ 
 
 Thus where judgment creditors of A, a living person, have 
 instituted a creditors' suit to subject the debtor's real property, 
 no creditor at large could assert his claim therein. 
 
 3. Order of Reference — Priorities. 
 
 § 449. Creditors' bills continued — order of reference. 
 
 — In a creditors' suit the court assumes the administration of 
 the entire estate or fund on which the claims asserted are charge- 
 able. For that purpose, if necessary, the cause is referred to a 
 master for an account of the assets to be administered in the 
 proceeding, the amount of the several claims charged or prop- 
 erly chargeable on such assets, and the respective priorities, if 
 any, of such claims, together with such other facts and inquiries 
 as the court may direct, or the master deem necessary, for a 
 proper disposition of the causi. We shall see something more 
 of the order of reference in later sections.^* 
 
 § 450. The same — distribution of proceeds — priorities. 
 
 — So far as concerns creditors who have existing liens before 
 bill filed (and, as before stated, cases are comparatively rare 
 where the situation is otherwise), their priorities are in nowise 
 affected as the result of the suit brought. Where, however, the 
 plaintiff's liens arise only hy virtue of the suit, (as by attach- 
 ment, or proceedings to set aside fraudulent conveyances under 
 the Virginia statute referred to above) such liens are necessa- 
 rily inferior to prior valid incumbrances. That is to say, if A 
 has first lien and B second, the priority of these liens is not af- 
 fected by the circumstance that C takes the initiative by filing a 
 
 " See supra, § 441, n. 8. 
 
 ^'' Infra, § 452 et seq. The Virginia statute requires the master to- 
 report delinquent taxes on the property of the debtor: Va. Code 1919,. 
 § GIST. 
 
228 Equity Pleading and Practice 
 
 creditors' bill — whether C is already a lien creditor inferior to 
 A and B, or whether his lien accrues by virtue of his suit. 
 
 This is but another way of saying that creditors must take 
 their debtor's estate in the condition in which they find it — 
 standing, as they must, in the debtor's shoes. i'^ Hence if there 
 be a valid lien already existing at the time the plaintiff creditor 
 brings his suit, the suit does not displace or otherwise affect 
 the exis':ing prior lien. 
 
 Nor, doubtless, would the result have been otherwise, in the 
 case stated, had A, the superior lienor, instituted the suit on 
 behalf of himself and other creditors similarly situated. i* 
 
 But where there is no existing lien. '^^ before bill filed, and the 
 lien arises only out of the equitable consideration of the plain- 
 tiff's vigilance and prior suit, as occasionally happens, then the 
 question of priority becomes important. 
 
 § 451. The same — priorities continued. — Where, as in 
 the case last mentioned in the preceding section, the liens of the 
 various creditors arise only upon the filing of the hill or of the 
 bringing of the suit, 2** or otherwise asserting the liens, the rule 
 
 " Subject, of course, to the provisions of the registry statutes, 
 statutes of fraudulent conveyances, and other statutory exceptions 
 where they exist. Lile's Notes on Eq. Jurisp. (ed. 1921), pp. 60-61. 
 
 ^ Here A's invitation is in terms to other creditors "similarly 
 situated" — and it would seem scarcely equitable to deem him to have 
 waived any priority to which he was entitled, by an invitation in 
 this form to other creditors. 
 
 " For example in attachment proceedings by general creditors of a 
 non-resident — or, under the Virginia statute already noticed, supra, § 
 444, in suit by general creditors to assail a fraudulent conveyance of 
 the debtor. 
 
 '" These expressions are substantially synonymous under the gen- 
 eral equity practice — since the filing of the bill and the issue of the 
 subpcena are usually contemporaneous steps; the filing of the bill, with 
 prayer for subpxna, being the only method of obtaining the sub- 
 pmna. Hence the language of the books on equity procedure, and in 
 the opinions of the courts, in declaring that the lien arises from the 
 filing of the bill connotes the bringing of the siiit. It happens that in 
 Virginia the issuing of the subpcena may precede the filing of the bill. 
 In Wallace v. Treakle, 27 Graft. 479, the court described the lien of 
 the plaintiff-creditors at large as. arising from the "filing of the bill," 
 (apparently overlooking the circumstance that the subpcena might 
 have been issued months before) and thus, doubtless unintention- 
 ally, creating a departure in Virginia from the accepted rule. 
 
 To obviate any difficulty on this score, the Revisors have wisely 
 provided by statute that the lien in suits to set aside fraudulent con- 
 veyances shall arise from the "bringing of the suit." Va. Code 1919, 
 § 5186. 
 
Creditors' Bills — Priorities 229 
 
 is that. the plaintiffs in the bill, as a reward for their vigilance 
 in the discovery of the equitable subject-matter, and their dili- 
 gence in instituting the proceedings at their own expense and 
 risk, are entitled to priority over all other creditors "similarly 
 situated" — though still postponed, as before indicated, to cred- 
 itors zvith prior existing liens. But if such plaintiffs (creditors 
 at large) sue not for their own benefit only, but on behalf of 
 other creditors in simili casu, thereby making the bill, at the out- 
 set, a general creditors' bill — then, having invited the other cred- 
 itors to share the burden of the suit, the plaintiffs are held im- 
 pliedly to have agreed to share the benefits also, with such cred- 
 itors as accept the invitation so extended. Hence, in the latter 
 case, all the general creditors who come in, whether as original 
 plaintiffs, or by petition, or under the order of reference, should 
 share pari passu in the proceeds. ^^ 
 
 "" In Wallace v. Treakle, 27 'Gratt. 479 — a case not clearly re- 
 ported, — a single plaintiff appears to have sued on behalf of himself 
 and of several other creditors specifically named — a very unusual pro- 
 ceeding, and one probably not warranted by rules of equity plead- 
 ing. The court appears to have treated all four as plaintiffs in the 
 case. The suit was not a general creditors' suit, and its object was 
 to set aside several conveyances made by the common debtor as a 
 fraud on creditors. It was held that the fund should be applied: 
 (1) to prior judgment liens, in the order of their accrual; (2) to the 
 claims of the "plaintiffs, arising from the filing of the bill; and (3) 
 to claims of other creditors asserted later, by petition or under the 
 order of reference, and in the order in which such claims were filed. 
 
 The question whether the phrases "filing the bill" and "bringing 
 the suit" are synonymous, is discussed in the preceding footnote. 
 
 In Freedmans' Bank v. Earle, 110 U. S. 710, the opinion by Mr. 
 Justice Matthews contains a most instructive review of the history 
 and present status of proceedings by creditors to reach the equi- 
 table estate of their debtor. In that case the bill was filed by a 
 judgment creditor to subject the equity of the debtor in real prop- 
 erty incumbered by a prior deed of trust. Under the existing law 
 of the forum (the District of Columbia) neither the judgment nor 
 the execution was a lien, legal or equitable, on the equity of redemption; 
 but (as held) such equity constituted equitable estate which the 
 judgment creditor might subject in equity. The bill was not in 
 form a general creditors' bill, but was filed solely in the interest 
 of the plaintiff. Other judgment creditors subsequently came into 
 the suit, and sought to share the proceeds ratably with the plaintiff. 
 It will be observed that this was a case where the lien arose 
 only upon the filing of the bill. The court held that the proceeds of 
 sale should be applied (1) to the existing lien under the deed of 
 trust; and (2) to the plaintiff's judgment as a superior claim to the 
 claims of those creditors who came later into the suit. "It is to be 
 noted, therefore," said the court, in speaking of creditors' suits, "that 
 the proceeding is one instituted by the judgment creditor for his own 
 
230 Equity Pleading and Practice 
 
 On the other hand, while, as a general rule, no othpr than 
 lien creditors can file a bill to wind up the affairs of an insolvent 
 partnership, corporation or other associated enterprise, yet in- 
 asmuch as the defendant's affairs cannot be completely settled 
 without payment of all the debts, so far as the assets are suffi- 
 cient for that purpose, the order of reference will usually make 
 provision for the proof of all liabilities, whether in judgment or 
 not. 22 These exceptions obviously arise from the necessities 
 of the case. 
 
 4. Bffect of the Order of Reference. 
 
 § 452. General effect of order of reference. — -Usually 
 the first important decree entered in a creditors' suit is one of 
 reference to a muster for an account of all property and assets 
 properly chargeable with the claims asserted, and to be asserted, 
 and of the respective amounts and priorities of such claims. 
 
 Such an order operates as a declaration on the part of the 
 court that it will assume the exclusive administration of the 
 
 interest alone, unless he elects to file the bill also for others in u, like sit- 
 uation, with whom he chooses to make common cause; and as no 
 specific lien arises by virtue of the judgment and execution alone, 
 the right to obtain satisfaction out of the specific property sought 
 to be subjected to sale for that purpose, dates from the filing of the 
 bill. 'The creditor' says Chancellor Walworth, in Edmeston v. L,yde, 
 1 Paige 637, 640, 'whose legal diligence has pursued the property into 
 this court, is entitled to a preference as the reward of his vigilance,' 
 and it would 'seem unjust that the creditor who has sustained all 
 the risk and expense of bringing his suit to a successful termination, 
 should in the end be obliged to divide the avails thereof with those 
 who have slept upon their rights, or who have intentionally kept 
 back that they might profit by his exertions when there could no 
 longer be any risk in becoming parties to the suit.' As his lien be- 
 gins with the filing of the bill, it is subject to all existing incum- 
 brances, but is superior to all of subsequent date." See also the opin- 
 ion of Chancellor Kent in McDermutt v. Strong, 4 Johns. Ch. 687, 
 where the same doctrine is expounded. 
 
 The case of Johnson v. Waters, 111 U. S. 640, illustrates the con- 
 verse situation. There the plaintifif sued on behalf of himself and all 
 other creditors similarly situated, to set aside certain conveyances of 
 the debtor's lands in fraud of creditors, and to subject the lands to 
 the plaintiff's judgment. The judgment in question was not a lien 
 before suit brought. It was held that by suing on behalf of himself 
 and all other creditors, the plaintiff had waived priority over other 
 creditors who should come in; and that in case of deficiency of as- 
 sets the fund should be distributed ratably among all the creditors 
 who came into the suit. Compare § 444, supra. 
 
 '■^ See supra, § 441. 
 
Creditors' Bills — Order of Rbfbrence 231 
 
 debtor's assets for the benefit of all creditors whose debts are 
 properly chargeable thereon, and who may come into the pro- 
 ceeding. Hence though the suit may originally have been solely 
 for the purpose cf asserting a single lien on behalf of the plain- 
 tiff, an order of reference for an account of liens converts the 
 suit into a general creditors' suit.^^ 
 
 The effect of such an order is of more significance than ap- 
 pears on its face, namely: (1) It operates to convert the suit 
 into a general creditors' suit, and thus to deprive the original 
 plaintiff or plaintiffs of the further dominion of the suit; (2) It 
 operates as an injunction against -the institution of other cred- 
 itors' suits against the same debtor to subject the same assets, 
 and suspends all other pending creditors' suits of the same char- 
 acter; and, as a necessary consequence of the principle last 
 stated, (3) It suspends the running of the statute of limita- 
 tions against all claims provable in the suit, and thereafter ac- 
 tually asserted therein, as shown more at large below. 
 
 § 453. Order of reference continued — (1) effect on 
 dominion of suit. — For reasons indicated in the preceding sec- 
 tion, the entry of an order of reference converts the suit — which 
 up to that time is merely the suit of the plaintiff or plaintiffs in 
 the original bill, over which they have complete dominion, and 
 may dismiss at will — into a suit for the benefit of all creditors 
 similarly situated, whether they have already come in or not, 
 and transfers the dominion of the suit to the creditors as a 
 whole, thus depriving the original plaintiff or plaintiffs of their 
 original right to dismiss or otherwise control the suit.^* 
 
 § 454. Tlie same — (2) effect on other creditors' suits. 
 
 — Since it is impossible, in the nature of things, to administer 
 a single estate or fund in several independent suits, and in view 
 of the general effect, already indicated, of an order of reference 
 as an assumption of the jurisdiction completely to administer 
 
 '= Simmons v. Lyies, 27 Gratt. 922, 938, per Staples, J.; Shultz v. 
 Hansbrough, 33 Gratt. 571, 578, per Burks, J.; McClannahan v. N. & 
 W. R. Co., 118 Va. 388. 
 
 ^ Piedmont Life Ins. Co. v. Maury, 75 Va. 508; Hirshfield v. Fitz- 
 gerald, 157 N. Y. 166, 46 L. R. A. 839, note. The same result would 
 follow where another creditor has intervened in advance of- the order 
 of reference. 
 
232 Equity Pleading and Practice 
 
 the estate or fund, (in effect, a quasi partition among creditors) 
 it follows that should any other court thereafter, although in an 
 already pending suit, assume the same jurisdiction, there would 
 necessarily be a conflict of jurisdiction, which could only be re- 
 moved by the surrender of jurisdiction by one or the other of 
 the courts. To prevent such a conflict, the rule has been es- 
 tablished that the court first entering the order of reference re- 
 tains the sole jurisdiction. It follows that no other proceedings 
 can be maintained elsewhere. Hence the first order of refer- 
 ence operates as , an injunction against the institution of other 
 creditors' suits against the same estate or fund, and suspends 
 further proceedings in other (.enduing creditors' suits, instituted 
 for similar purposes, whether in the same court or in different 
 courts of the same state. 
 
 It follows also from this, that the general rule that as be- 
 tween conflicting jurisdictions in the same State, priority of 'U- 
 risdiction is acquired by that court in which the proceeding is 
 first instituted, is inapplicable to creditors' suits ; and that prior- 
 ity of jurisdiction here is acquired by that court which first en- 
 ters the order of reference.^^ 
 
 § 455. The same — (3) effect on the statute of limita- 
 tions. — As a natural consequence of the foregoing, such a de- 
 cree has the further effect of suspending the statute of limita- 
 tions as to all creditors whose claims are properly provable in 
 the suit, and who actually come into the suit.-^ 
 
 This consequence results from the rule that an injunction 
 against suit on a contract, or other claim, suspends the running 
 of the statute of limitations — as does also the pendency of a 
 suit for the enforcement of the claim. By the entry of the or- 
 der of reference, as already indicated, other suits are, in effect, 
 enjoined, and the main suit becomes, in theory, one for the en- 
 forcement of all claims properly provable — even those not as 
 yet actually asserted. 
 
 "' Kent V. Cloyd, 30 Gratt. 555; Bilmeyer v. Sherman, 23 W. Va. 
 657; Craig v. Hoge, 95 Va. 375; Buck v. Coldbath, 3 Wall. 334. The 
 same effect follows the appointment of a receiver in a creditors' 
 suit. Post, ch. xxxiii. 
 
 " Callaway v. Saunders, 99 Va. 350, 7 Va. Law Reg. 40, note. See 
 Richmond v. Irons, 121 U. S. 27; Jackson v. Hull, 21 W. Va. 613; 1 
 Daniell, Ch. Pr. 643. 
 
Order oi? Reference — Statute of Limitations 233 
 
 § 456. Effect on statute of limitations, continued — 
 Virginia statute. — By a quite recent statute in Virginia,^'^ the 
 effect on the statute of limitations of an order of reference in 
 a creditors' suit, under the unwritten rule, has been somewhat 
 altered — and not clearly for the better. 
 
 The statutory provision is, in substance, as follows : 
 
 1. Where the suit- is originally commenced as a general cred- 
 itors' suit. — Here, the running of the statute of limitations 
 is declared to be suspended from the com,mencem£nt of 
 the suit (instead of from the date of the order of refer- 
 ence under the equity rule) as to (a) all 'debts provable 
 in the cause, and actually proved under the first order of 
 reference therein entered. But as to (b) debts not thus 
 proved under the first order of reference, but which are 
 proved under a later order in the same cause, the statute 
 continues to run until such later order of reference is en- 
 tered. 
 
 2. Where the suit is not commenced as a general creditors' 
 suit. — Here the statute declares that if such suit becomes 
 a general creditors' suit by subsequent proceedings in the 
 cause, by entry of an order of reference, the statute of 
 limitations is suspended, from the time of the entry of 
 the order, but only as to creditors who come in under such 
 order of reference. As to creditors coming in afterwards 
 by petition, or under a second order of reference, the stat- 
 ute continues to run regardless of previous proceedings, 
 until the filing of such petitions or the entry of the later 
 order of reference. 
 
 § 457. Statute of limitations, continued — right of 
 competing creditor to plead. — The general rule that the stat- 
 ute of limitations is a personal plea, and may be set up by the 
 debtor only, is firmly established. , The rule rests on the principle 
 that the effect of the statute is not to bar the right but the rem- 
 edy only — and not even to bar the remedy unless the debtor as- 
 serts the bar as a personal privilege. ^^ 
 
 " Acts 1930, p. 87. 
 
 ^ See 3 Va. Law Reg. 63; Clayton v. Tyson, 32 Gratt. 73; Smith 
 V. Hutchinson, 78 Va. 683. 
 
234 Equity Pleading and Practice 
 
 But a somewhat dififerent principle is applicable, in certain 
 cases, where the question is not one of securing a personal judg- 
 ment against the debtor, but concerns competing claims of cred- 
 itors and others in the distribution of a particular fund or estate 
 under the administration of the court, and time-barred claims 
 are being asserted against the res, to the detriment of other cred- 
 itors or claimants. The several situations here presented are 
 considered in the section following. 
 
 § 458. The same, continued. — (1) Where the estate be- 
 ing administered is that of a decedent, it seems a settled rule 
 that since it is the duty (and not merely privilege) of the per- 
 sonal representative to plead the statute in a proper case, any 
 creditor of the estate, whose interest requires it, may set up the 
 statute.29' 
 
 (2) Again, where the claim is barred not by the ordinary 
 statute of limitations but arises out of a statute, which, along 
 with the right, prescribes a time limitation within which the 
 right must be asserted, any creditor whose rights would be af- 
 fected by enforcement of the time-barred claim, may set up 
 the statute.^" 
 
 (3) But where the several competing claims are being as- 
 serted against the estate of a living defendant, (as in a creditors' 
 bill to enforce the lien of judgments), who himself refuses to 
 interpose the plea of the statute against time-barred claims, and 
 the participation of these claims will prejudice other creditors 
 who are parties to the suit, the authorities are not harmonious 
 on the question whether the latter class of creditors may inter- 
 pose the plea of the statute. It seems settled in Virginia ^^ 
 that they may, while the rule in West Virginia is the reverse.^^ 
 
 ® Tazewell v. Whittle, 13 Gratt. 345; Woodyard v. Polsley, 14 W. 
 Va. 211; 6 -Va. Law Reg, 852. 
 
 ^ McCartney v. Tyrer, 94 Va-, 198 (mechanic's lien) ; 3 Va. Law 
 Reg. 63; 6 (Va. Law Reg. 852. Here the right itself, and not the 
 remedy only, is affected by the statute. 
 
 ^ Ayres v. Burk, 82 Va. 338; McCartney v. Tyrer, 94 Va. 198 — 
 editorially discussed in 3 Va. Law Reg. 63 and 6 Va. Law Reg. 852. 
 One may of course, plead the statute, in defense of his own title to 
 property — as against a debt of a predecessor in title, asserted as a 
 lien. See Walker tj. Burgess (W. Va.), 30 S. E. 99. 
 
 " Welton V. Boggs (W. Va.), 32 S. E. 232; McClannahan v. 
 N. & W. R. Co., 122 Va. 705— a case in which title by adverse pos- 
 
Order of Reference — Purposes 235 
 
 § 459. Several bills pending^ — practice. — The practice 
 where there are several creditors' bills pending to subject the 
 same res is explained in Stephenson v. Taverners : ^^ "Where 
 there are several such suits pending at the same time," says Mon- 
 cure, J., "it seems the decree for an account of outstanding 
 claims 'may be made in the cause which is first ripe for a decree, 
 whether that cause was first commenced or not; and when the 
 decree is made in the younger suit, then the proceedings in the 
 elder suit must be stayed.' Ross v. Crary, 1 Paige 417, note 
 (a)." 
 
 5. Purpose and Necessity of Order of Reference. 
 
 § 460. Account of liens — purpose. — Before decreeing a 
 sale of real property at the suit of lien-creditors, the policy of 
 courts of equity is to convene all lien-holders ; to ascertain defi- 
 nitely the amounts of the several liens, with their respective 
 priorities ; and to obtain precise information as to the location 
 and description of the property or properties owned by the 
 debtor and against which the proceeding is .directed. 
 
 § 461. The same — advantages — (1) sale free of liens. 
 
 — The enforcement of this policy accomplishes several impor- 
 tant and beneficial results, notably in that the convention of all 
 lien-holders enables the court to sell the property free of liens — 
 thus encouraging prospective purchasers to bid more freely than 
 they would do if obliged to bid blindly, and to accept title sub- 
 ject to unknown and unascertained liens not represented in the 
 suit. Thus both the debtor and his creditors are benefited by a 
 more advantageous sale. 
 
 § 462. The same — (2) enabling lien-holder to bid in- 
 telligently. — The fixing of the priorities enables each creditor 
 to know precisely the aggregate of all liens superior to his own, 
 and therefore, if he desires to become a bidder at the sale in 
 order to save his own debt, he may do so intelligently. Here, 
 
 session was successfully maintained against a judgment lien creditor 
 of a former owner. 
 
 ^ 9 Gratt. 398, 406-407. It is not unusual to consolidate such 
 causes, or to order them heard together — with the necessary order 
 of transfer, where the several causes are pending in separate courts. 
 
236 Equity Pi,eading and Practice 
 
 again, by encouraging creditors to bid, the prospects of an ad- 
 vantageous sale are increased. 
 
 § 463. The same — (3) defining the res. — Precise knowl- 
 edge of the location and description of the res which the court 
 is to administer is manifestly necessary in all judicial proceed- 
 ings. The homely maxim of equity is that it "will never sell a 
 pig in a bag." 
 
 § 464. Order of reference continued — when essential. 
 
 — In pursuance of the policy referred to, the settled practice 
 in equity is to refuse to decree a sale of real property where the 
 record indicates that there are conflicting liens, or liens of un- 
 ascertained or disputed amounts, or an absence of certainty in 
 the location or description of the subject-matter,_or other im- 
 pediments to a fair sale. And for disregard of this rule the 
 decree will be reversed on appeal. The rule does not depend on 
 the character of the lien or liens asserted in the bill, but on the 
 uncertainty in one or more of the particulars mentioned, namely, 
 in the amount or ,amounts due, in the several priorities, or in 
 the subject-matter, or in some other matter likely to operate as 
 a clog upon the bidding.^* 
 
 So far is this policy carried of req'uiring certainty in these 
 several particulars, that where a creditor secured by a deed of 
 trust is proceeding, with the co-operation of the trustee, to en- 
 force his claim by a sale of the property in pais, the court will 
 enjoin the sale and order a proper account to be taken, where 
 it is made to appear by the debtor-'plaintiff's bill, or that of any 
 interested party, or otherwise, that the title to the trust subject 
 is clouded, or the res is uncertain, or the amount of the debt is 
 in dispute, or that there are other conflicting liens on the prop- 
 erty. This means not only that the court will not itself decree 
 a sale where these circumstances appear, but that it will actively 
 
 ^ See Judicial Sales, ante, ch, xxi; Coles v. McRae, 6 Rand. 718; 
 Simmons v. Lyles, 27 Gratt. 922; Kendrick v. Whitney, 28 Gratt. 646; 
 Shultz V. Hansbrough, 3.S Gratt. 567; Bristol, etc., Co. ZK Caldwell, 
 95 Va. 47; Sims v. Tvrer, 96 Va. 14; Rush v. Dickenson County Bank, 
 128 Va. 114. 
 
 The rule is generally not applicable to personal property — because 
 of its perishable nature, and because personal chattels may usually 
 be sold in detail, instead of in bulk. Coles v. McRae, supra; Bank 
 v. Trigg, 106 Va. 327. 
 
Account of Liens 237 
 
 intervene by injunction, and forbid a sale in pais, until these 
 uncertainties are cleared up.^s 
 
 § 465. The same — when not essential. — Where the rea- 
 son of the rule ceases the rule itself ceases. Hence on a credi- 
 tors' bill brought solely on behalf of the plaintifif or plaintiffs, 
 whose claims are certain, or may be made certain by proofs in 
 the cause, with like certainty or possible certainty as to the res, 
 with nothing on the record to indicate the existence of other 
 conflicting liens, the court will not assume the probability or 
 possibility of other liens, and hence may order a sale without an 
 account of liens.^^ And so, where it is evident that the non-en- 
 forcement of the rule would not produce the harmful results 
 against which it is directed.^ '^ 
 
 § 466. Attachment, injunction and receivership. — 
 
 These ancillary processes of attachment, injunction and receiv- 
 ership are nowhere more commonly found, nor more beneficially 
 administered, than in combination with creditors' suits.^^ 
 
 ^ Gay V. Hancock, 1 Rand. 73; Miller v. Argyle, 5 Leigh 460; 
 Wilkins v. Gordon, 11 Leigh 547; Hudson v. Barham, 101 Va. 63; 
 Dechert v. Chesapeake, etc., Co., 101 Va. 804. 
 
 "" Repass v. Moore, 96 Va. 147; Shickel v. Berryville Land Co., 
 99 Va. 88. 
 
 '■ Bank v. Trigg, 106 Va. 327 — where it appeared that the first 
 lien amounted to several millions of dollars, largely in excess of the 
 value of the property, and that the inferior liens were for such com- 
 paratively small amounts as to exclude the probability that the in- 
 ferior lienors would desire to bid at the sale. 
 
 ^ See Injunctions, ante, ch. xxvii; Receivers, post, chs. xxxii-xxxiii. 
 
238 Equity Pleading and Practice 
 
 CHAPTER XXXII. 
 
 Receivers.* 
 
 § 467. Receiver— nature of the office. — A receiver is 
 a disinterested executive officer appointed by a court of equity,^ 
 whose duty it is, under the direction and supervision of the 
 court, to take possession of property, real or personal, involved 
 in an equity suit, for the purpose of preserving it pendente lite, 
 where for good reason it seems to the court that no party to the 
 suit should have the custody of it.^ 
 
 1. Appointment of Receiver. 
 
 § 468. The same — purpose of his appointment. — While 
 the main purpose of a receivership, as indicated, is to preserve 
 the res during the litigation, and finally to dispose of it as the 
 court may direct, the office is not always a passive one nor the 
 receiver necessarily a mere custodian. Not infrequently the 
 preservation of the res in controversy, because of its inherent 
 nature, requires that it be actively used or operated, in which 
 case the scope of the receivership becomes much wider than 
 that of mere custodianship of the property. 
 
 Thus, where the res consists of the assets of a railway com- 
 pany, or other public utility, which, in the interest of the pub- 
 lic as well as of its owners and creditors, must be operated — 
 or where, though not of public concern, the value of the prop- 
 erty would be seriously affected by ceasing the operations con- 
 
 * Consult: High on Receivers (4th ed.). 
 
 '■ Statutory receivers — that is, those designated directly by stat- 
 ute, 'or appointed by executive officials or boards, under authority of 
 statute — are not within this definition. See Relfe v. Rundle, 103 U. 
 S. 222; post, § 507 ct seq. 
 
 '_ The nature of the office, and the purpose and effect of the ap- 
 pointment of a receiver, are lucidly explained by Baldwin, J., in Bev- 
 erley V. Brooks, 4 Gratt. 187, 208. (Michie's Ed. Ann.). 
 
 In the selection of the receiver the court will consider the interests 
 of all parties, as well as the fitness of the appointee for the particular 
 office. Where the property is being administered by liquidating 
 trustees, who are fit persons, the court will usually name one or 
 more of such trustees as receivers. Dechert v. Chesapeake & Western 
 Co.. 101 Va. 804; Martin v. Kester (W. Va.), 39 S. E. '598. 
 
Receivers — Appointment 239 
 
 nected with it (as in the case of the plant of a newspaper, or of 
 a manufacturing property with a large quantity of unfinished ma- 
 terial on hand, or profitable unfilled contracts) — the receiver 
 may be directed to operate the property as a going concern, so 
 as to preserve the good-will and otherwise prevent serious loss 
 to the owners and other parties in interest. 
 
 § 469. Circumstances justifying appointment of re- 
 ceiver. — In order to call into exercise the extraordinary juris- 
 diction to seize the defendant's property, and to take it out of 
 his possession before the plaintiff has established his right 
 thereto, or the validity of his claim against it, by a trial on the 
 merits, the court must be satisfied that there are good reasons 
 why the property should be thus taken into its custody by the 
 appoinment of a receiver. 
 
 There are two chief circumstances upon which the bill for a 
 receiver must rest, namely, (1) The plaintiff must have an eq- 
 uitable cause of action, based on a legal or equitable interest in 
 the res itself, and not a merely personal claim against the de- 
 fendant owner; and (2) It must appear that the rights of the 
 plaintiff mil or may be jeoparded if the property he left in the 
 defendanfs possession — as by removal beyond the jurisdiction, 
 misuse, misapplication, spoliation, wastage, or otherwise. 
 
 § 470. The same. — "The exercise of the extraordinary 
 power of a chancellor in appointing receivers," says Mr. High,* 
 "as in granting writs of injunction or ne exeat, is an exceed- 
 ingly delicate and responsible duty, to be discharged by the 
 court with utmost caution, and only under such special or pe- 
 culiar circumstanees as demand summary relief. Indeed the ap- 
 pointment of a receiver is regarded as one of the most difficult 
 and embarrassing duties which a court of equity is called upon 
 to perform. It is a peremptory measure whose effect, tempo- 
 rarily at least, is to deprive of his property a defendant in pos- 
 session, before a final judgment or decree is reached by the court 
 determining the rights of the parties. It is therefore not to be 
 exercised doubtingly, but the court must be convinced that the 
 relief is needful, and that it is the appropriate means of secur- 
 
 ' High, Receivers 3. 
 
240 Equity Pleading and Practice 
 
 ing an appropriate end. And since it is a serious interference 
 with the rights of the citizen, without the verdict of a jury, and 
 before a regular hearing, it should be granted only for the pre- 
 vention of manifest wrong and injury." 
 
 § 471. The same — special circumstances to be shown. 
 
 — In view of the harshness of the proceeding as described in 
 the -sections preceding, it is important for the student to observe 
 that to justify the appointment of a receiver the plaintifif must 
 disclose in his bill such a case as clearly to give him standing in a 
 court of equity to assert it; as well as the peculiar circumstances 
 that render a receivership essential to protect the right in ques- 
 tion. It must be remembered that the appointment of the re- 
 ceiver is not the primary object of the suit, but is merely ancil- 
 lary to some equitable right which it is the chief purpose of the 
 bill to protect and enforce. It is vital therefore that the appli- 
 cation for the receivership be based on a valid equity sought 
 to be enforced — for the consideration and security of which the 
 appointment of the receiver is necessary. 
 
 Hence, in order to exhibit a case proper for the appointment 
 of a receiver, the plaintiff's bill must (1) assert a valid equita- 
 ble claim or right (that is, one not remediable at law) to, or 
 charged upon, the very property sought to be made the subject 
 of the receivership; and (2) must allege the special circum- 
 stances which make the appointment of a receiver essential for 
 the preservation of the property, and for its forthcoming at the 
 proper time, in response to the decree of the court, on the final 
 determination of the controversy.* 
 
 § 472. The same— (1) nature of the plaintiff's right. 
 
 — The plaintiff's right must rest on an eqiuitable claim, or one for 
 the assertion of which there is no adequate legal remedy; and 
 must be in the nature of an equity in the property, (i. e. in rem,) 
 so that the defendant's relation to the res is in the nature of a 
 trust for the plaintiff's benefit. Unless the right be in rem in 
 its original form, it must be converted into such a right, by 
 judgment or otherwise, before the plaintiff has a locus standi 
 
 * High, .Receivers, 11-13. See Meyers Bros. v. Harman Bros. (W. 
 Va.), 89 S. E. 146; Beverley v. Brooks, 4 Gratt. 187, 808. 
 
Receivers — Appointment 241 
 
 for the appointment of a receiver — on the kindred and familiar 
 principle that a general creditor cannot maintain a creditors' 
 bill, or interfere with the defendant's possession of his own es- 
 tate.^ Thus a creditor in position to maintain a creditor's bill ; ® 
 a plaintiff asserting a trust in the res, express or implied ; '^ suits 
 by shareholders of a corporation seeking an accounting or a 
 winding up of the corporate affairs ; ^ partners seeking a disso- 
 lution and winding up of the firm business, or an accounting 
 and winding up after dissolution ; * and a mortgagee suing for 
 foreclosure, afford illustrations of proper plaintiffs in an ap- 
 plication for a receiver. 
 
 § 473. The same — (2) necessity of receiver for pres- 
 ervation of the res. — Assuming that the bill contains proper 
 allegations as to the plaintiff's right primarily to equitable re- 
 lief, the second essential of a receivership is that there be a well 
 grounded apprehension of immediate danger of serious loss to 
 the plaintiff, unless the .property be taken in the custody of the 
 court. ^^ Both the equitable in rem claim, and the jeopardy of 
 the res, must concur. 
 
 § 474. The same — special appointment. — While in 
 many states courts of equity are served by a permanent official 
 known as a General Receiver, the duties of such an official are 
 usually no other than those of the financial agent of the court, 
 to receive funds paid into court, and to preserve, invest or other- 
 wise dispose of them as the court may order.^i 
 
 The receiver to whom this brief discussion is confined is a 
 temporary officer, named by special-designation of the court m 
 the cause in which he is appointed. 
 
 " High, Receivers, 9-11. 
 
 ° For the essentials of which see Creditors' Bills, ante, § 439 et seq. 
 High, Receivers, 399-471. 
 
 ' High, Receivers, 9, 412, 694-699. 
 
 " After exhausting all means of redress within the corporation 
 itself. Hawes v. Oakland, 104 U. S. 450; Passenger & Power Co. v. 
 Fisher, 104 Va. 121; Saunders 'v. Bank of /Mecklenburg, 113 Va. 656; 
 Marshall on Corporations, § 304; lEquity Rule 27; High, Receivers, 
 293 et seq. i 
 
 " High, Receivers, 473-552. 
 
 '° High, Receivers, ,11. i 
 
 " Va. Code 1919, §§ 6380-6294. 
 
242 Equity Pleading and Practice 
 
 § 475. The same — appointment in vacation, — ^The anal- 
 ogy between the preliminary injunction and the appointment of 
 a receiver is both close and striking — an analogy to which we 
 shall have occasion to recur again. Both are in their nature 
 extraordinary and preventive proceedings; neither affects the 
 merits of the controversy; the purpose of each is to preserve 
 the status quo; and the one is frequently the complement of the 
 other. In many cases the appointment of a receiver without the 
 further protection of an injunction, or, per contra, the granting 
 of the injunction without the precautionary measure of a receiv- 
 ership, would be fruitless. It follows, therefore, that jurisdic- 
 tion to grant injunctions draws ufith it, ex necessitate, jurisdic- 
 tion to appoint a receiver. Hence the question whether a par- 
 ticular court or judge has jurisdiction to appoint a receiver, and 
 whether the appointment may be made in vacation (where there 
 is no determining statutory provision) will depend on the juris- 
 diction of the court or judge with respect to the granting of in- 
 junctions. Power to grant the latter, in term or in vacation, 
 includes the necessary incident of appointing the former.^^ And 
 the power to appoint in vacation carries with it the power to 
 discharge in vacation. i^ 
 
 2. Notice of Application. 
 
 § 476. Appointment continued — notice of application. 
 
 — While there is tRus a strong analogy between the issuing of a 
 preliminary injunction and the appointment of a receiver, the 
 latter is yet a much more serious disturbance of the apparent 
 rights of the defendant. The injunction is merely negative, and 
 does not alter the immediate status quo, whereas the receivership 
 is, in a sense, an anticipatory execution, (or, perhaps, more ac- 
 curately, an equitable attachment), and for the time being de- 
 prives the defendant of the possession of his property at the 
 very inception of the suit, before the plaintiff has established 
 his claim by a trial on the merits, and before the defendant 
 has had opportunity of making his defense. 
 
 " High, Receivers, 15-16;, 105-106; Smith v. Butcher, 28 IGratt. 
 144; Harwell v. IPotts, 80 Ala. 70; IRainey v. Freeport, etc., Co., 58 
 W. iVa. 424. See Injunctions, ante, ch. xxvii. 
 
 ^ Crawford v. Ross, 39 Ga. 44; High, 'Receivers '824-826. 
 
Receivers. — Notice; of Application For 243 
 
 It is natural in such circumstances tiiat courts should be more 
 averse to the appointment of a receiver than to the granting of 
 a preliminary injunction, and should proceed with greater cau- 
 tion in the one case than the other. 
 
 It is an imperative rule, therefore, (with the exceptions pres- 
 ently to be noted) that no application for the appointment of a 
 receiver will be granted on a mere ex parte application, but that 
 the defendant must have seasonable notice of the application, 
 with opportunity to introduce counter-affidavits to meet those 
 offered by the plaintiff in support of the allegations of his bill.i* 
 
 § 477. Notice of application — continued. — But this rule 
 is not inflexible, nor carried further than justified by the rea- 
 son on which it rests. Hence the court will not insist upon 
 notice to the defendant where it is impracticable — as where the 
 defendant has absconded ; or where he is beyond the jurisdiction 
 and is not represented by counsel or other authorized represen- 
 tative, and the situation is urgent. Nor will notice be required 
 where it is clearly shown that notice to the defendant would 
 probably defeat the very object sought in the application for the 
 receivership — as that the defendant, in consequence of the no- 
 tice, would probably remove the res from the jurisdiction, or 
 otherwise attempt to defeat the main purpose of the bill. 
 
 In other words, the rule of notice gives way where its en- 
 forcement would threaten greater injustice, to the plaintiff than 
 its omission would probably cause to the defendant.^^ 
 
 '* High, iReceivers, ,112 -fit seq; Freidenheim -v. Rohr, 87 'Va. 764; 
 Ruffner v. Mairs, 33 W. Va. 655, 11 S. E. 5; Stockton v. Harmon, 32 
 Fla. 312, 13 So. 833; Ensley Devel. iCo. E/. IPowell, !147 Ala. 300, 40 
 So. 137; IRog-ers w. iDougherty, BO Ga. 271. In Bristow v. Home 
 Building Co., 91 Va. 118, 20 iS. E. 946, it was held that where, »n the 
 subsequent appearance of the defendant, the court overruled his 
 motion to discharge the receiver appointed without notice, this is 
 equivalent to holding that the ex parte application for an injunction 
 and receiver was properly granted without notice. 
 
 The appointment of a receiver, without notice, cannot be a more 
 summary Iproceeding than the familiar iproceeding under attachment 
 statutes, which require no notice to the defendant prior to the seizure 
 of his property. So, while the requisites for the appointment- of a 
 receiver and for the Jssue of an attachment are not always identical, 
 it would seem that where the plaintiff makes out such an equitable 
 case as would justify an attachment at law if the claim were Jegal, 
 he will at least have stated a proper case for the appointment of a 
 receiver. ; 
 
 ^' High, Receivers, 113-117; Jacksonville, etc., Co. v. Stockton, 40 
 
244 Equity Pi^eading and Practice 
 
 3. Receive/s Bond. 
 
 § 478. Receiver's bond. — Unless dispensed with by con- 
 sent of parties, or, in rare cases, where plainly unnecessary, 
 before the receiver is competent to perform any official duty he 
 is required to execute a bond, with sufficient sureties, conditioned 
 on the faithful performance of his duties, including a due ac- 
 counting for all funds or property coming into his hands offi- 
 cially. The order appointing him usually provides that he shall 
 have no powers thereunder until he has executed the required 
 bond, in the penalty prescribed in the order. 
 
 § 479. The same — ^retroactive effect. — Where there is 
 an interval between the appointment and the qualification of the 
 receiver, the better rule is that the qualification operates retro- 
 actively, and the rights and title of the receiver will be reck- 
 oned as of the date of his appointment. Hence the receiver's 
 title will take precedence over a hostile levy made in the interval 
 between his appointment and his qualification.!*' 
 
 4. Effect of Receiver's Appointment. 
 
 § 480. Effect of appointment. — The appointment of a 
 receiver is in nowise the determination of the merits of the con- 
 troversy. Indeed, as already indicated, such appointment is 
 strikingly analogous to the preliminary injunction or to an at- 
 tachinent — to either of which proceedings the receivership is not 
 infrequently ancillary. The purpose of the preliminary injunc- 
 tion is to preserve' the status quo; the purpose of the attachment, 
 to hold, preserve and to secure the forthcoming of the property 
 attached; and so the object of the receivership is simply to safe- 
 guard the status quo the more securely, by removing the sub- 
 ject-matter of the controversy beyond the reach of any of the 
 litigants, and placing it in the custody of the court, so that it 
 
 Fla. 141, 33 So. 557; iPollard v. Southern Fertilizer Co., 133 Ala. 409, 
 25 So. 169; Verplanck v. Mercantile Ins. Co., 2 Paige 438 (per Wal- 
 worth, Chancellor). 
 
 '° High, Receivers, 121a; In re Christian Jensen Co., 128 N. Y. 
 55fl, 128 N. E. '665; Temple to. iGlasgow, 25 C. C. A. 540, 80 Fed. 441, 
 distinguishing Frayser v. Railway Co., 81 Va. 388. Compare Woods 
 V. Ellis, 85 Va. 471, where the contrary was assumed without dis- 
 cussion. 
 
RBCDIVERS TlTI^E AND POSSESSION 245 
 
 may be forthcoming to meet such final decree as may be made 
 in the cause.^^ 
 
 § 481. The same — the receiver's title. — It follows from 
 what has been said, that the appointment of the receiver oper- 
 ates only as a temporary sequestration, and has no effect on the 
 title to the property or the merits of the controversy; but the 
 title, legal and equitable, remains undisturbed by the appoint- 
 ment — the right of possession alone being affected. The title of 
 the receiver, therefore, is in no sense that of the trustee of an 
 express trust, or of an assignee. 
 
 From this, it further follows, as we shall see later, that ac- 
 tions at law brought by the receiver under the direction of the 
 court, for the purpose of reducing the res into his possession, 
 must generally be asserted in the name of the legal owner, and 
 cannot be maintained in the name of the receiver.^^ 
 
 § 482. The same — property is in custodia legis. — The 
 
 possession of the receiver is the possession of the court, of which 
 the receiver is but the arm — and hence the efifect of "the receiv- 
 ership is to place the estate in custodia legis, for the benefit of 
 such of the litigants as may be declared entitled to it or its pro- 
 ceeds on the final determination of the controversy. 
 
 § 483. Interference with receiver's possession. — The 
 
 important consequence of the taking of the res into the custody 
 of the court, (in custodia legis) through the instrumentality of 
 the receiver, is, that any interference with the receiver's posses- 
 sion, without consent of the court, zvill be treated as a contempt 
 
 " Beverley iz/. Brooke, '4 Gratt. ,187, 20i8.. The order directing a 
 transfer of possession to the receiver is such a 'change of jpossession' 
 as is contemplated by Va. Code 1919, § '6336, and is therefore ap- 
 pealable. Dechert v. Chesapeake, etc., Co., 101 Va. 804. 
 
 '* Save of course where the receiver can show title — as by assign- 
 ment, or by statute, or where he has possessory title and is asserting 
 no other, hee post, Suit by Receivers, §§ 498 et seq. This, on the familiar 
 principle that equity acts in personam only, and hence its decrees 
 cannot ex propria vigore transfer legal title. Sterrett v. Second Nat. 
 Bank, 246 Fed. 753, 3 A. iL. R. 256 (annotated), affirmed 248 U. S. 52. 
 Lile, Notes on Equity Jurisp. (ed. 1921), p. ,32; Proctor v. Ferebee 
 (N. C), 36 Am. Dec. 34, n. In some of the states, the practice is 
 to compel the holder of the title to convey it to the receiver. Fletcher, 
 Eq. PI. & Pr. 491; High, Receivers, 443-449. 
 
246 Equity Pleading and Practice 
 
 of court and punished accordingly.^^ The court may also, of 
 course, vindicate its authority by injunction. 20 
 
 Not only is it such contempt for a private person thus to in- 
 terfere with the receiver's possession, but it is equally so where 
 such interference is in the form of legal proceedings against the 
 rceiver or the property under his control. JThus an officer who 
 levies an execution or a distress warrant on property in the pos- 
 session of a receiver, without consent of the court, is guilty of 
 contempt.^i 
 
 5. Pamiliar Instances of Receiverships. 
 
 § 484. Familiar instances of receiverships. — It is, of 
 
 course, impossible, to enumerate, in the form of concrete state- 
 ment, the various circumstances justifying a receivership, but 
 perhaps a few illustrations of the more common cases in which 
 receivers are appointed — almost as a matter of course — may be 
 helpful to the student: 
 
 (a) Foreclosure of mortgages and other liens on real prop- 
 erty, where it is doubtful whether the proceeds of the mort- 
 gaged property will be sufficient to satisfy the debt, and, be- 
 cause of the insolvency of the debtor, the mortgagee desires to 
 sequester the rents and profits. Here a receiver may be named 
 to collect the rents and profits.^^ 
 
 (b) Foreclosure of mortgages or other liens on personal or 
 mixed property, where good cause is shown for placing the prop- 
 erty in the custody of a receiver. Under this head would come 
 the foreclosure of mortgages on railways and other public serv- 
 ice companies — or on the property of private corporations or of 
 
 " High, Receivers, 163 et seq. 
 
 ^ Id. 256. 
 
 "^ Id. 163 \et seq. See Camden v. |Va. Safe 'Deposit, etc., Co., 115 
 Va. 26. So where the estate of the debtor (an insolvent corporation) 
 is in the hands of ja. receiver, creditors of the insolvent may not 
 maintain a suit to assert claims in favor of the insolvent debtor 
 (e. g. liability of directors of the insolvent corporation for negligent 
 or fraudulent management), without first applying to the receiver to 
 assert the liability. Saunders v. Bank of Mecklenburg, 113 Va. 656. 
 
 '' High, Receivers, 639-691; Smith v. Butcher, 28 Graft. 144; Freed- 
 man's Sav. Bank v. Shepperd, 127 U. iS. 494; Shepperd v. Pepper, 133 
 U. S. 626. ' ' 
 
Receivers — Doctrine of Fosdick v. Schall 247 
 
 individuals, where the mortgaged assets are of such a character 
 as to be liable to spoliation or wastage. ^^ 
 
 (c) In cases of creditors' bills generally — where the assets 
 are of a character to need the special protection afforded by a 
 receivership. 2* The receivership is particularly appropriate in 
 creditors' suits to subject personal assets transferred in fraud 
 of creditors.^'' 
 
 (d) Shareholders' suits ^^ to wind up the affairs of the cor- 
 poration, for insolvency or other proper cause; as well as deriva- 
 tive suits by shareholders or creditors of insolvent corporations 
 against directors or other officials to recover corporate funds 
 wrongfully appropriated or negligently lost. 
 
 (e) Controversies between partners, calling for a dissolution 
 and winding up of the partnership affairs, where the partners 
 cannot agree upon the terms of the dissolution, or on the cus- 
 tody, control and disposition of the assets after dissolution. ^'^ 
 
 (f) Controversies between trustee and cestui que trust, 
 where the latter seeks a removal of the trustee for fraud, incom- 
 petency, or other cause indicating the propriety of placing the 
 trust res in the custody of a receiver.^s 
 
 § 485. Putting the plaintiff on terms — doctrine of 
 Posdick V. Schall. — As has already been indicated, the appoint- 
 ment of a receiver in any case is not a matter of right, but rests 
 in the sound discretion of the court. Hence wherever applica- 
 tion is made for a receivership, the court may apply the maxim 
 that he who wants equity must do equity,^® and therefore may 
 exact terms of the plaintiff as the price of the court's assist- 
 ance. 
 
 A striking application of the maxim was made by the Su- 
 preme Court of the United States in Fosdick v. Schall,*^ and 
 
 "" High, Receivers :376-389a, 647. 
 
 " High, Receivers, 399, et seq. The student will of course recall 
 that in the absence of statute, general creditors cannot maintain such 
 a bill. See Creditors' Bills, ante, ch. acxxi. 
 
 "^ By special statute in Virginia general creditors may have relief 
 in such cases. Ante, § 444. < ' 
 
 " High, Receivers, 393-295c. 
 
 ^ High, Receivers, 473-508. 
 
 "* Id. 697, et seq. 
 
 "■ For an exposition of the scope oi Ithis maxim, see Me's Notes 
 on Equity Jurisprudence i(ed. 1931), p. 26. 
 
 ^ 99 U. S. 335. 
 
248 Equity Pleading and Practice 
 
 the principle there estabHshed has become the settled practice, 
 particularly in connection with railroad receiverships. 
 
 In substance, the rule of Fosdick v. Schall is this: Where a 
 railroad company is unable to meet its bonded indebtedness, or 
 the annual interest payments thereon, and the bondholders, or 
 their representative, the trustee in the mortgage or deed of trust 
 securing the bonds, make application to a court of equity for a 
 receivership looking to foreclosure proceedings, the court, as a 
 condition of appointing a receiver and administering the assets 
 in such proceedings, may require the bondholders to submit to a 
 marshalling of the assets in behalf of unpaid employees and oth- 
 ers vi^ho have furnished labor or materials for operation of the 
 road since insolvency, and prior to the receiveiship. 
 
 § 486. Fosdick v. Schall, continued. — The theory upon 
 which this doctrine is applied is that the income from the opera- 
 tion of the railroad should first be applied in payment of wages 
 of employees and oi persons supplying material, and equipment 
 to enable the railroad to continue operations as a going concern. 
 And, until bill filed for foreclosure, the bond creditors have no 
 lien on current income. Those persons supplying labor and ma- 
 terials, therefore, have first claim upon such income. 
 
 Where, however, this income has been diverted to the pay- 
 ment of overhead charges, such as interest on the bonded indebt- 
 edness, leaving wages of employees and debts for current sup- 
 plies unpaid, the court, in assuming control of the road through 
 a receivership, will, out of the capital assets covered by the 
 mortgage, restore to income account so much of the income so 
 diverted as may be necessary to liquidate claims for wages and 
 current supplies. In other words, the court will require the 
 bondholders, though secured by a first mortgage lien, to sur- 
 render their priority in the capital assets to the equitable claims 
 for labor and supplies furnished after insolvency, and prior to 
 the receivership. 
 
 This principle is justified not only on the right of the court 
 to grant the receivership and administer the assets on equitable 
 terms, under the maxim quoted, but on the further considera- 
 tion that in permitting the railroad company to remain in pos- 
 session and continue operations after insolvency, the company 
 
Receivers — Fosdick v. Schai<i< 249 
 
 should be considered, in a sense, as operating the road in the in- 
 terest of the bondholders, and as their qiuisi tmstee or agent; 
 and hence the superior lien of the bondholders must yield to the 
 equities of those whose labor and materials have kept the com- 
 pany a going concern, and have thus conserved the mortgage 
 security for the benefit of the first lien creditors. 
 
 § 487. The same, continued. — Not all claims for labor 
 and supplies are thus privileged under the rule; but, as hereto- 
 fore applied by the United States Supreme Court where the 
 principle originated, the labor and supply claims must be of re- 
 cent origin, arising within a short period, usually not over six 
 months anterior to the receivership — though in Southern R. Co. 
 V. Carnegie Steel Co..^^ the rule was extended to cover a period 
 of eleven months. 
 
 " 176 U. S. 257. In Lackawanna, etc., Co. v. Farmers Loan & 
 Trust Co., 176 U. S. 398, the claim was denied on ithe ground that the 
 material supplied (steel rails) was in such quantity as to amount to a 
 reconstruction of (the road, or the 'construction of a new road, and , 
 therefore more properly chargeable to capital than to income ac- 
 count. The opinion of Mr. Justice Harlan in Southern Railway 
 Co. V. Carnegie Steel Co., supra, contains a luminous discussion of 
 the rule in its several aspects. 
 
250 Equity Pleading and Practice 
 
 CHAPTER XXXIII. 
 
 Receivers — Continued. 
 
 6. General Powers of Receiver. 
 
 § 488. General powers and duties of receiver. — As 
 
 more than once heretofore indicated, the receiver is the mere 
 arm of the court, and hence his powers and duties are neces- 
 sarily dependent on the terms, express or implied, of the decree 
 appointing him, and of such subsequent orders as the court may, 
 from time to time, enter, enlarging, restricting or otherwise mod- 
 ifying the original order. 
 
 § 489. Implied powers — duties passive. — Where his du- 
 ties are merely passive, the implied powers of the receiver are 
 somewhat similar to those of a special agent — and will not be 
 extended by implication beyond those powers clearly incidental 
 to those expressly conferred. But the order of appointment 
 will be construed as conferring all powers reasonably incidental 
 to the main powers. ^ 
 
 § 490. Implied powers, continued — duties active. — 
 
 Where, however, the duties of the receiver are not simply pas- 
 sive, but are active in their nature — as where they include the 
 general management and operation of the res, as a going con- 
 cern (e. g. a railway or other public utility, or a manufacturing 
 plant, or the publication of a newspaper) — since, in the nature 
 of the case, minute instructions as to the details of the man- 
 agement are impracticable, the receiver must of necessity be 
 invested, by implication, with wide discretionary power. And 
 in the conduct and management of such operations, where not 
 otherwise restricted by the directions of the court, the receiver 
 may exercise such incidentgj^ powers as under the circumstances 
 necessarily or reasonably accompany the conduct of the busi- 
 ness intrusted to his management.^ 
 
 ■• See Thompson v. Phoenix Ins. Co., 136 U. S. 287; authorities 
 in next footnote. 
 
 " State Bank of Virginia v. Domestic Sewing Machine Co., 99 Va. 
 411; High, Receivers 36, 175-180, 313-343, 390-394. 
 
Suits against Receiver 251 
 
 § 491. Suits against receivers. — For the reasons al- 
 ready mentioned, the institution of a suit against the receiver, 
 in his official capacity, without consent of the court, is a con- 
 tempt — punishable in contempt proceedings, and remediable by 
 injunction.3 Many authorities go further, and hold that the 
 question of consent is a jurisdictional one, and the absence of 
 such consent is fatal to the jurisdiction,* even in a court of law 
 in a foreign state. ^ 
 
 § 492.* The same — how rights against receiver as- 
 serted — intervention. — Creditors and others holding claims 
 against the debtor, and seeking to subject the res in the receiv- 
 er's hands — claims arising anterior to the receivership, or not 
 out of any act of or transaction of the receiver or his agents — 
 must, of course, intervene in the equity suit in which the res is 
 being administered, unless such claims are already asserted in 
 the original bill. Such claims are not against the receiver but 
 against the debtor, and his assets under the control of the court. 
 Such intervention may be either by a formal petition, or by 
 proof under an order of reference. As stated, such claims are 
 liabilities of the main defendant whose estate has been seques- 
 tered by means of receivership. 
 
 But where claims arise against the receiver as such (of course. 
 
 ' High, Receivers, 354. 
 
 * Though the weight of authority is contra. Id. 354a. See Me- 
 lendy v. Barbour, 78 Va. 544; Reed v. Axtell, 84 Va. 331; Barton v. 
 Barbour, 104 U. S. 136. Where, however, the suit is against the re- 
 ceiver personally, as for a trespass committed under color of his re- 
 ceivership, but outside and in excess of his authority, the rule prob- 
 ably does not apply — 'since here the plaintiff is not seeking in any 
 manner to assert a claim against the property in custodia legis. High, 
 Receivers, 357. 
 
 ° In Barton v. Barbour, supra, the court held that in the absence of 
 an allegation of consent by the appointing court, an action at law 
 could not be maintained in the District of Columbia, against a re- 
 ceiver of a Virginia court, for personal injuries suffered by the 
 plaintiff, in Virginia, from the negligence of the receiver's servants. 
 Mr. Justice Miller's dissenting opinion seems to present the sounder 
 view. While the appointing court may protect its own receiver, and 
 punish by contempt 'any persons who institute legal proceedings 
 against the receiver without its consent, courts of other jurisdictions 
 — and particularly courts of law — are under no obligation to recognize 
 the representative character of the defendant, whose description as 
 "receiver" is (in a court of law) merely descriptio personae. See 
 infra, § 493, n. 7. 
 
252 Equity Pleading and Practice 
 
 subsequent to his appointment), out of his management or op- 
 erations connected with the sequestered property — claims which 
 the receiver refuses to pay, or to audit for payment — the proper 
 method of proceeding is to file (by consent of the court), a pe- 
 tition in the pending chancery suit, showing a valid prima facie 
 claim against the receiver, and praying for permission to prose- 
 cute the claim, either by proceedings in the cause itself, or in 
 an independent suit against the receiver, in such forum as the 
 court may designate, at law or in equity, according- to the na- 
 ture of the demand. ^^ 
 
 § 493. Judgment against receiver — nature — how en- 
 forced. — Where the claim is thus against the receiver officially, 
 and not for personal wrongs which he may have committed be- 
 yond the scope of his official duties,* a valid judgment recovered 
 against him, in a proceeding so authorized, does not, in equity, 
 bind the receiver personally — since in substance the proceeding 
 is against the receivership, or the fund represented by it.'' 
 
 The plaintiff's proper procedure, after judgment, is to petition 
 the court administering the assets to allow and order the judg- 
 ment paid out of the receivership funds, according to the prior- 
 ity to which it may be entitled. As previously pointed out, ex- 
 ecution on such judgment cannot be levied on the assets in the 
 hands of the receiver. To permit claimants thus to levy execu- 
 tions would seriously disarrange the priorities of the various 
 claims, and would render the orderly administration of the as- 
 sets impossible. Hence such a levy would be punishable as a 
 contempt of the court.* 
 
 "^ High, Receiver 254, 254a-255. 
 
 ' High, Receivers 269, et seq. 
 
 ' High, Receivers 255, 395, et seq.; McNulta v. Lochridge, 141 U. 
 S. 327; Bartlett v. Cicero Light Co., 177 111. 68, 53 N. E. 339, 68 L. 
 R. A. 78, 69 Am. St. Rep. 20i6. As to the conclusiveness of such 
 judgment upon the interests represented by the receiver, see Painter 
 V. Painter, 138 Cal. 231, 71 Pac. 90, 94 Am. St. Rep. 47, note. Doubt- 
 less, where the judgment is in a court of law, (which ignores equita- 
 ble titles and proceedings), designation of .the defendant as "re- 
 ceiver" would usually be treated by the law court simply as descriptio 
 personae, and the judgment would be, in form and effect, against the 
 receiver personally. But as the plaintiff in the^ judgment is a quasi- 
 party to the suit in the equity court that appointed the receiver (by 
 reason of his intervention for license to sue), that court will control 
 the judgment at law, and treat it as affecting the res only. 
 
 ' High. Receivers 141, 163; supra, § 483. 
 
Suits against Receiver — Statutory License 253 
 
 § 494. Statutory license to sue receivers. — The mani- 
 fest inconvenience of intervening in a cliancery suit, pending 
 perhaps at a point far removed from the locality in which the 
 claim against the receiver arose, has resulted in statutes in many 
 states, authorizing such suits to be brought without previous 
 leave of the court. 
 
 § 495. The same — scope of statutes. — These statutes 
 vary in their scope, wfhich, in some jurisdictions, is confined to 
 suits against receivers of corporations, while in others, as in 
 Virginia ^ and in the Federal jurisdiction,!" it embraces receiv- 
 ers of both corporate and individual property. 
 
 Naturally these statutes do not throw the door wide open to 
 litigants in such independent actions to contest with the receiver 
 their claims against the insolvent defendant — claims properly 
 justiciable only in the pending' suit in which the receiver was 
 appointed; but the license to sue the receiver without consent 
 of the appointing court extends only to suits "in respect of any 
 act or transaction of his in carrying on the business connected 
 with such property." ii 
 
 § 496. The samfe — how judgment enforced. — To permit 
 the successful plaintiff in such licensed action against the re- 
 ceiver to issue execution on his judgment, and to levy on the res 
 in the hands of the receiver, or otherwise to proceed to enforce 
 his judgment out of the assets of the insolvent, against which 
 assets prior claimants have already proceeded by the very cir- 
 cumstance of the existing receivership — would seriously disar- 
 range the priorities of the various claimants, and hamper the 
 orderly administration of the assets in the hands of the court. 
 
 Hence, either by express provision of the statute, ^^ or by 
 judicial construction, i* the successful plaintiff is not permitted 
 to levy on the res in the receiver's hands ; but, after securing his 
 
 ' Va. Code 1919, § 6391. 
 
 '" Judicial Code (Suppl. 1911), § 66. 
 
 " For a discussion of the cases construing the Act of Congress, 
 see High, Receivers 395b. 
 
 " As in Virginia, § 6292. 
 
 "^ As in the Federal jurisdiction. St. Louis S. W. R. Co. v. Hol- 
 brook (C. C. A. 1896), 73 Fed. 112; Texas, etc., R. Co. v. Johnson. 
 151 U. S. 81. See High, Receivers, 395b. 
 
254 Equity Pi<eading and Practice 
 
 judgment, he must intervene by petition in the main suit; where- 
 upon "the court shall direct the payment of such judgment in- 
 the same manner as if the claim upon which the judgment is 
 based had been proved and allowed in said case" ^* — ^that is, the 
 court will give the judgment such relative priority as the claim 
 upon which it is based would have been entitled to had it been 
 asserted and allowed in the main suit. In other words, the judg- 
 ment is enforced in the same manner as other judgments against 
 receivers. 1^ 
 
 § 497. The same — the Federal statute. — The language 
 of the Federal statute is : "Every receiver or manager of any 
 property, appointed by any court of the United States, may be 
 sued in respect of any act or transaction of his in carrying on 
 the business connected with such property, without previous 
 leave of the court in which such receiver or manager was ap- 
 pointed; but such suit shall be subject to the general equity ju- 
 risdiction of the court in which such receiver or manager was 
 appointed, so far as the same may be necessary to the ends of 
 justice." 1^ 
 
 The proper construction of the final clause subjecting "such 
 suit" to the "general equity jurisdiction" of the court appointing 
 the receiver, does not authorize the court to reopen the judg- 
 ment when offered in intervention proceedings by the judgment 
 creditor, but merely to fix the time and mode of payment, and 
 to adjust the competing rights of all claimants in the suit.^"^ 
 
 The statutory license is broad enough to include, and does 
 include, the right to sue the receiver in any court of competent 
 jurisdiction, state or federal.''-^ 
 
 8. Suits by Receivers. 
 
 § 498. Suits by receivers — consent of court. — It has 
 
 already been pointed out that in absence of statute conferring 
 
 " Va. Code, § 6293. See the statute for further details. For 
 methods of service of process on receivers, see id. § 6065. 
 
 " See Judgment against Receivers, ante', § 493. 
 
 " Judicial Code (Suppl. 1911), § 66. 
 
 " St. Louis S. W. R. ,Co- ■"■ Holbrook (C. C. A. 1896), 73 Fed. 
 113; Texas, etc., R. Co. v. Johnson, 151 U. S. 81. 
 
 " McNulta V. Lochridge, 141 U. S. 337; Texas, etc., R. Co. v. 
 Johnson, supra. 
 
Suits by Receivers 255 
 
 other powers, the receiver, being a mere officer of the court, may 
 exercise no other powers than those conferred. It follows that 
 merely by virtue of his office he has no authority to institute 
 suits on behalf of the interests which he represents. This rule 
 is based on the logical and salutary principle that it is the prov- 
 ince of the court itself {i. e. of the principal or appointing 
 power) to determine whether it shall, through its receiver, be- 
 come a litigant in a suit, at the risk of useless litigation and a 
 waste of the funds which it is administering, rather than that 
 the question should be left to tbe uncontrolled discretion of its 
 agent or appointee. 
 
 Where, therefore, the receiver sues, as such, he must allege 
 and prove his authority to do so from the court appointing 
 him.19 
 
 § 499. The same — (1) transactions prior to receiver- 
 ship. — Where the receiver sues at law to assert a right con- 
 nected with his receivership, but which arose before his appoint- 
 ment — a right therefore, vested in the insolvent, and title to 
 which is not divested by the receivership, 2'' — on principle, and 
 according to the better authority, he must assert the claim in the 
 name of the person to whom the right originally accrued, and 
 not in his own name.^i This follows from the circumstance, 
 already noted, that the receiver, normally, has not legal title. 
 
 '" High, Receivers, 200^203. As to the necessary allegations in 
 such case, see Taylor v. Canaday, 155 Ind. 671, 57 N. E. 534, 59 N. 
 E. 20; Coddington v. Canaday, 157 Ind. 243, 61 N. E. 567; High, Re- 
 ceivers, '301; infra, § 500. Mere authority to "collect" debts due the 
 insolvent, does not confer authority to collect by suit. McAllister v. 
 Harman, 97 Va. 547; Screven v. Clark, 48 Ga. 41. 
 
 Where the debtor of the insolvent or of the receiver is already 
 properly a party to the suit, the claim of the receiver against him 
 may be tried in the main suit, even though the claim be other-wise 
 triable only at law. N. Y. Life Ins. Co. v. Davis, 94 Va. 437. See 
 Barton v. Barbour, 104 U. S. 136. 
 
 '" See supra, § 481. 
 
 ^ This rule would seem of special force in courts of law, and in 
 those jurisdictions (as -in Virginia) were legal title alone is recog- 
 nized in such courts. See Battle v. Davis, 66 N. C. 252; Freeman v. 
 Winchester, 18 Winchester, 18 Miss. 577; Yeager v. Wallace, 44 Pa. 
 St. 294, where the rule is especially well stated by Strong, J.; Homer 
 V. Barr, etc., Co., 180 Mass. 163, 61 N. E. 983, 91 A"m. St. Rep. 269; 
 Murtey v. Allen, 71 Vt. 377, 45 Atl. 752, 76 Am. St. Rep. 779. Some 
 of these authorities refer to foreign receivers, but the principle seems 
 equally applicable to domestic receivers, except as indicated in the 
 following section. High, Receivers, 209-210 — indicating some conflict 
 in the authorities. The practice is settled in some states by statute. 
 
256 Equity Pi,eading and Practice 
 
 § 500. Suits by receivers, continued — where receiver 
 is assignee, or otherwise has title. — Where, however, the 
 receiver's claim of title does not rest on the mere order of the 
 court, but is derived through an assignment by the insolvent, or 
 under a statute expressly or impliedly investing him with title,^^ 
 since the reason for the rule denying him the right to sue in his 
 own name no longer exists, the rule itself gives way. 
 
 In such case, having title, he may sue in his own name, and 
 (in a court of law) without designating himself as receiver, 
 since in a law court such designation is merely descriptio per- 
 soncE.^^ 
 
 % 501. The same — (2) transactions subsequent to re- 
 ceivership. — On a cause of action arising subsequent to the 
 appointment of a receiver, out of a transaction had with the re- 
 ceiver or his agents, there is, on principle, no difficulty in his 
 maintaining a suit thereon in his own name, in any court of con- 
 tempt jurisdiction, foreign or domestic, at law or in equity, ac- 
 cording to the nature of the case. As a party to the transaction 
 he has legal title to the claim. In such case he might maintain 
 an action at law without naming himself as receiver, since in a 
 court of law such designation is merely descriptio personce, as 
 noted in the preceding section. 
 
 Thus he may maintain assumpsit in his own name for the 
 purchase price of goods sold by him as receiver ; 2* in trover for 
 a chattel bailed by the receiver to the defendant ; ^^ to recover 
 of a wrongdoer (even in a foreign jurisdiction) property of 
 
 as in New York. Id. 211-313, 447; Porter v. Williams, 5 Seld. 142. 
 As shown in Mr. High's valuable treatise, so often cited in these 
 note's, some of the adverse authorities hold that by having lawful 
 possession of documents — as in the case of bills, notes or other 
 chases in action — such possession gives the receiver a special title, 
 so as to authorize suit in his own name. High, Receivers ubi sup. 
 Nor, on principle, is the situation altered by the circumstance that 
 express authority to sue in his own name is conferred by the appoint- 
 ing court. Id. 
 
 ^ See infra, Foreign Receivers, § 503 et seq. 
 
 ^ Boyle V. Townes, 9 Leigh 158; Wray v. Jamison, 10 Humph. 
 (Tenn.) 186; High, Receivers 344. 
 
 -' Singerly v. Fox, 75 Pa. St. 113. 
 
 =* Boyle V. Townes, 9 Leigh 158. 
 
Foreign Receivers 257 
 
 which the receiver has once obtained possession in his own state, 
 since such possession gives him a special title as against a wrong- 
 doer ; 26 and, of course, on all contracts or transactions made or 
 had with him or his agents in connection with the affairs of the 
 receivership. 
 
 § 502. Conflicting receiverships — priority of jurisdic- 
 tion. — As between courts of co-ordinate jurisdiction in the same 
 state, it is the settled rule that the court first moving in the 
 process of adminisering the res by appointing a receiver, will 
 have priority of jurisdiction over another court subsequently ap- 
 pointing a receiver of the same property — and this whether the 
 first receiver has taken actual possession of the res or not.'^'^ 
 And this rule applies equally where one of the competing re- 
 ceivers is appointed by a State court and the other by a Fed- 
 eral court 2» — save, of course, where, under the Federal Con- 
 stitution, the right of the Federal court is superior, as in bank- 
 ruptcy proceeding, etc. The analogy between the effect of ap- 
 pointing a receiver as fixing priority of jurisdiction, and the 
 effect of an order of reference in a creditors' suit,^® seems com- 
 plete. 
 
 9. Conflict of Laws — Foreign Receivers. 
 
 § 503. Conflict of laws — appointment of receiver of 
 property in another jurisdiction. — Where the court has per- 
 sonal jurisdiction of the defendant, it has full povver by its de- 
 cree to compel him to deliver the res over to the custody of the 
 receiver, in whatever jurisdiction it may be located. If the de- 
 fendant be not personally served with process .within the juris- 
 diction, or is not otherwise within the control of the court, the 
 jurisdiction is limited to the res within its control, and the court 
 can enter no personal decree^nor exercise jurisdiction over 
 property of the defendant located in another state. Nor does 
 jurisdiction over the person make the decree ipso facto effective 
 beyond the jurisdiction, as such decree operates in personam 
 
 " Caghill V. Woodbridge, 8 Baxt. (Tenn.) 580, 35 Am. Rep. 716; 
 note 15 Am. St. Rep. '83; Kehr v. Hall, 117 Ind. 405, 30 N. E. 379. 
 " High, Receivers, 48. 
 
 '^'' Id. 50-62a, 588. See Foreign Receivers, next section. 
 ™ See Creditors' Suits, ante, ch. xxxi. 
 
258 Equity Pi^Eading and Practice 
 
 only — on the conscience of the defendant. But operating thus 
 on his conscience, the defendant may be compelled by proper 
 process to obey the order of the court directing that the posses- 
 sion of the foreign res be delivered to its receiver ^'^ — or, as it 
 seems, may compel an assignment or conveyance thereof to 
 the receiver, in trust for the interests represented in the suit.^^ 
 In case the property be held adversely in the foreign state, or 
 legal proceedings be otherwise necessary in the foreign state 
 to obtain possession, the right of the receiver to maintain suit 
 in the foreign court will depend on circumstances to be consid- 
 ered in the following sections. 
 
 § 504. Foreign receivers. — It not infrequently happens, 
 particularly in connection with receivers of insolvent corpora- 
 tions, that there are assets, tangible or intangible, widely scat- 
 tered throughout different states. In such cases, the question 
 how far the powers and rights of the receiver appointed in the 
 home state will be recognized in other jurisdictions, becomes 
 an important one. 
 
 §505. The same — suits by foreign receivers. — It is set- 
 tled that the full faith and credit clause of the Federal Constitu- 
 tion does not require the courts of one state to recognize the 
 official character and authority of a receiver appointed in an- 
 other state. The official status of the receiver, like that of a 
 sheriff or of, an administrator, does not accompany him beyond 
 the territorial jurisdiction of the court appointing him. Being 
 the mere arm of a court whose process can have no extraterri- 
 torial potency, his home-conferred status and powers are nec- 
 essarily confined to the territorial limits within which the proc- 
 ess of the appointing court is effective.^ ^ This rule applies 
 
 "' Receiverships of railways traversing several states, are familiar 
 instances. High, Receivers, 44, 388a; Wilmer z: Railway Co., 2 
 Woods 40'9. See Ancillary Receivers, infra, § 510. 
 
 ^' See infra, n. 32. 
 
 '*' Booth V. Clark, 17 How. (U. S.) 332; Hale v. AUinson, 188 U. 
 S. 56; Great Western Mining, etc., Co. v. Harris, 198 U. S. 561; mon- 
 ographic note 4 L. R. A. (N. S.) 824; 3 Va. Law Reg. 831; High, Re- 
 ceivers 339 et seq. The difficulty is frequently met by procuring an 
 assignment (voluntarily, or under order of the court) to the receiver, 
 so as to vest title in him as trustee. See infra, § 507; High, Receiv- 
 ers 443 et seq. 
 
Foreign Receivers — Statutory Receivers '259 
 
 where the receiver of one Federal court without title ^^^ sues 
 in another Federal court outside of the circuit ; ^^ and whether 
 the receiver sues in his own name or that of the main defend- 
 ant 3* and in spite of the circumstance that the suit is expressly 
 directed by the court appointing him.^^ 
 
 § 506. Suits by foreign receivers, continued — relaxa- 
 tion of the rule by comity. — Notwithstanding the established 
 rule denying to a receiver the privilege of maintaining a suit in 
 a foreign jurisdiction as a matter of right, the courts are more 
 and more evincing a disposition to accord recognition to foreign 
 receivers from motives of interstate comity; and numerous in- 
 stances of such comity are to be found in the reports. 
 
 This comity is usually extended on such terms as to preserve 
 the rights of citizens of the state whose comity is thus invoked 
 — and hence it will not be extended to the prejudice of citizens 
 who have acquired rights against the res in the foreign juris- 
 diction, nor when it would contravene the laws or public policy 
 of the state.^* 
 
 10. Assignees and Statutory Receivers. 
 
 § 507. Foreign receivers, continued — rule inapplicable 
 to assignee or statutory receivers. — Of course a wholly 
 different situation is presented where the receiver has title to 
 the res which he is seeking to recover in the foreign jurisdic- 
 tion. It is the lack of title that defeats his claim is recognition 
 as of right.^'' 
 
 § 508. Receiver as assignee. — Hence if the receiver 
 holds an assignment from the real owner (normally the main 
 
 ■^^ See supra, § 501, infra, § 507. 
 
 '^ Brigham v. Luddington, 12 Blatchf. 23'7; High, Receivers 239. 
 See Federal Judicial Code, 56. 
 
 '* Great Western Mining, etc., Co. v. Harris, 198 U. S. 561; High, 
 Receivers 239. 
 
 ** Sterrett v. Second Nat. Bank, (C. C. A.), 246 Fed. 753, 3 A. L. 
 R. 256 (annotated), affirmed 248 U. S. 73. 
 
 ^ High, Receivers 239-241; Folger v. Columbia Ins. Co., 99 Mass. 
 267, 96 Am. Dec. 747; note 6 Am. St. Rep. 185; Holbrook v. Ford, 
 153 III. 633, 46 Am. St. Rep. 917; Straughan v. Hallwood, 30 W. Va. 
 274, 8 Am. St. Rep. 49, and extensive note; Grogan v. Egbert (W. 
 Va.), 28 S. E. 714; note 26 C. C. A. 49-58. 
 
 " See Title of Receiver, supra, § 484. 
 
260 Equity Pi^eading and Practice 
 
 defendant in the original suit) — or is exercising powers under a 
 valid statute of the state of his appointment, which in terms, or 
 by implication, vests him with title and control of the res, 
 wheresoever situated — then the question of his recognition by 
 the courts of a foreign state is no longer one of comity, but he 
 is entitled to demand recognition as a matter of right. In such 
 a situation, the receiver is not the representative of a foreign 
 court, but, pro hac vice, is the legal holder {as trustee) of the 
 right or title that he is asserting, under the term of an express 
 trust.^* 
 
 § 509. Statutory receivers. — So, where the statutes of 
 the state under whose laws a corporation is organized provide 
 that a particular official, whether called receiver, statutory as- 
 signee, commissioner, or by other designation, shall take charge 
 of its affairs upon insolvency, and the authority so bestowed by 
 statute is in such terms as to make the receiver a qimsi assignee 
 and representative of the corporation, such a provision is in ef- 
 fect a part of its corporate charter. A corporation may under 
 the law of its creation, or under the domestic law to which it is 
 subject, have one set of officers for the management of its af- 
 fairs while engaged in active operations, and another to take 
 charge of and wind up its affairs upon its insolvency. In a 
 proper case, therefore, the property and effects of such a cor- 
 poration vest in such statutory official, as qiiasi assignee, by 
 force of the statute, and he has the same powers and title in a 
 foreign state as in the state of his appointment.^^ 
 
 ^ Hawkins v. Glenn, 131 U. S. 319; Bernheimer v. Converse, 206 
 U. S. 516; Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888, 891; 
 High, Receivers 241a, 244; authorities n. 39 infra. In such case, 
 the description of himself as "receiver" would be immaterial, as merely 
 descriptio personae. High, Receivers 244; supra, §§ 481, 501. 
 
 "' Bockover v. Life Association, 77 Va. 85, 6 Am. and Eng. Corp., 
 Cas. 603; Relfe v. Rundle, 103 U. S. 222; Bernheimer v. Converse, 
 206 U. S. 516. And refusal by the court of another state to recognize 
 such a statutory receiver is a violation of the full faith and credit 
 clause of the Constitution of the United States. Converse v. Hamil- 
 ton, 224 U. S. 243 — z case of a statutory receiver suing in a foreign 
 state, in a court of law, and in his own name as statutory receiver. 
 See Sterrett v. Second Nat. Bank (C. C. A.), 246 Fed. 753, 3 A. 
 L. R. 256 (monographic note), affirmed 248 U. _ S. 73 — where the 
 terms o'f the statute were held not sufficient to invest the receiver 
 with the character and title of assignee. 
 
Ancili^ary Receivers — Receivers' Ce;rtificates 261 
 
 The same result follows, as before noted *" where the receiver 
 sues to recover property taken from his possession, since he has 
 special or possessory title. 
 
 11. Ancillary Receivers. 
 
 § 510. Ancillary receivers. — In order to avoid the diffi- 
 culties that hamper the receiver when he attempts to assert do- 
 minion over assets in a foreign jurisdiction, it is common prac- 
 tice for the original plaintiffs, or some of them, to institute an 
 equity suit in the foreign state, and to secure the appointment 
 there of an ancillary receiver, with authority to take possessior, 
 of all the assets of the insolvent within that jurisdiction. 
 
 Whether the domiciliary receiver may himself institute such 
 suit for an ancillary receivership will depend on the question, 
 already discussed,*^ whether he is an assignee, or otherwise has 
 title to the assets which he is seeking to recover, or whether he 
 is an ordinary chancery receiver, and therefore dependent on the 
 comity of the foreign court.*^ 
 
 The foreign court, in the ancillary proceeding, will give such 
 a direction to the assets within its jurisdiction as the nature of 
 the situation may demand, looking eventually to their transmis- 
 sion to the domiciliary receiver in the home state — but usually 
 taking care that the claims of local creditors who have secured 
 liens on the estate prior to the ancillary receivership are first 
 satisfied.*^ 
 
 12. Receivers' Certificates. 
 
 % 511. Receivers' certificates. — In the foreclosure of 
 mortgages of railways, and doubtless of other public service 
 companies which, from their nature and from public necessity, 
 must notwithstanding the receivership be operated as going con- 
 cerns, courts of equity possess the power when the physical con- 
 
 " Supra, § 501. 
 
 " Supra, § 607-509. 
 
 ^ High, Receivers 30'6a-30'6b, 37oa; Mahon v. Ongley Electric Co., 
 159 N. Y. 196, 50 N. E. 805. The erection of ancillary receiverships 
 is quite common in Federal court proceedings for the foreclosure of 
 mortgages on railroads whose lines run through several states. By 
 comity, the same receiver is appointed in each court, and the court 
 first appointing the receiver is permitted to assume the general ad- 
 ministration of the assets. Central Trust Co. v. East Tenn.. etc., R. 
 Co.. 30 Fed. 895; Piatt v. Philadelphia, etc., rR. Co., 54 Fed. 569; 
 Clyde V. Richmond & D. R. Co., 66 Fed. 539; High, Receivers 375a. 
 
 *" High, Receivers 47, 30«-306b. 
 
262 Equity Pleading and Practice 
 
 dition of the property demands it, and for purposes of neces- 
 sary repairs and equipment, to authorize the receiver to borrow 
 money on the credit of the entire corporate assets under the 
 control of the court, and to issue debentures or certificates of 
 indebtedness therefor. Such certificates are known as "receiv- 
 ers' certificates." When issued by consent of the parties in in- 
 terest, or, under proper circumstances, without such consent, and 
 after due notice to the bondholders, or other lienors, whose pri- 
 orities are thus displaced, such certificates may be, and usually 
 are, by order of the court, constituted liens superior to all ante- 
 cedent liens on the property. 
 
 § 512. The same. — The theory upon which such action is 
 justified is that the court having undertaken, through the receiv- 
 ership, the administration of the assets as a trust fund for the 
 benefit of the bondholders and at their request, may rightfully 
 preserve the assets at the expense of the fund ; and since the 
 maintenance and operation of the railway are essential to pro- 
 tect the interests of the public, as well as to preserve the cus- 
 tom, good-will and corporate rights and franchises of the cor- 
 poration, the necessary expenses of such maintenance and op- 
 eration should properly be borne by the trust subject.** The 
 rule does not apply to receiverships of purely private corpora- 
 tions, except where all lien-holders consent.*^ 
 
 A few cases have extended the principle to receiverships of 
 purely private corporations, but the propriety of these decisions 
 is doubtful. *8 Where, however, the preservation (as contrasted 
 with the profitable operation) of the property makes it neces- 
 sary, the propriety of issuing such certificates, not as a lien supe- 
 rior to existing liens, or as a superior lien by consent of all prior 
 lienors, is undoubted, even in the case of private corporations or 
 (in principle) of individuals.*'^ 
 
 " Wallace v. Loomis, 97 U. S. 146; High, Receivers 398'C. et seq. 
 
 '" High, Receivers 312b-312d; Fidelity Insurance, etc., Co. v. Roa- 
 noke Iron Co., 68 Fed. 623; monographic note, 26 C. C. A. 350-372. 
 
 " See Karn & Hickson v. Rorer Iron Co., 86 iVa. 754; Prof. 
 Burks, 4 Va. 'Law Reg. 373. In Osborne v. Big Stone Gap, etc., Co., 
 9'6 |Va. 58, the IVirginia court seems to approve of the application of 
 the principle to private corporations, provided due notice is given to 
 the creditors interested. But as no such notice was given, the ap- 
 proval was obiter. 
 
 " See Jerome v. McCarter, 94 U. S. 734; Kent v. Lake Superior 
 Canal Co., 144 U. S. 75. 
 
Appeals 263 
 
 CHAPTER XXXIV. 
 Appeals.^ 
 
 § 512 1/2 • Preliminary. — It is not the purpose of this chap- 
 ter to attempt more than an outhne of the subject of appeals in 
 equity. The procedure is largely statutory, and reference must 
 be made to the statute for details. 
 
 The topic of Appeal and Brror is one of the most compre- 
 hensive in the" law — not because of inherent difficulties, but be- 
 cause practically in every case appealed, counsel for the ap- 
 pellee is disposed to raise every possible question of procedure 
 in the higher court. These questions the court must decide, and 
 thus decided they find their way into the reports, and serve to 
 swell the vo'ume of case law under this title. 
 
 § 513. Use of terms — appeal — writ of error — super- 
 sedeas. ^Where the appellate court assumes the review of a 
 chancery case the proceeding is designated as an appeal; and the 
 parties are known, respectively, as appellant and appellee. 
 
 Where the higher court thus assumes the review of proceed- 
 ings in an action at law, the jurisdiction is exercised though a 
 writ of error issued to the lower court. Here the parties are 
 known as plaintiff in error and defendant in error, respectively. 
 •Where the higher court thus grants an appeal or writ of er- 
 ror, and it is desired to stay the hand of the appellee or defend- 
 ant in error until the case can be reviewed and disposed of 
 above, a writ of supersedeas is granted for the purpose, as sup- 
 plementary to the appeal or writ of error.^ 
 
 § 514. Prerequisites of an appeal — (a) subject-mat- 
 ter. — As a prerequisite to an appeal in any case in Virginia, 
 there must be involved matter of sufficient importance to war- 
 rant a rehearing of the case by the Court of Appeals, and the 
 cause must have reached a certain stage in its progress towards 
 
 ^ See Va. Code 1919, ch. 267, and the reviser's voluminous annota- 
 tions. 
 
 " Id. § !6349. 
 
264 
 
 Equity Pleading and Practice 
 
 finality. These prerequisites of subject-matter involved, the 
 statute ^ prescribes as follows : 
 
 (1) Title or bounds of lands; or 
 A freehold or franchise; or 
 Some matter not merely pecuniary 
 (e. g. custody of a child, divorce, 
 etc.) ; or 
 
 An amount or value equal to $300, 
 exclusive of costs.* 
 
 (a) Subject-matter. 
 
 (2) 
 (3) 
 
 (4) 
 
 § 515. The same — (b) stage of the cause. — If one of 
 
 the foregoing prerequisites obtains, an appeal lies, provided the 
 case has progressed far enough, and the action of the court is of 
 sufficient moment, to warrant an appeal at that stage of the 
 cause. This stage is fixed by the statute ^ as follows : That is 
 to say, an appeal lies (assuming the existence of a 'prerequisite 
 subject-matter as above shown) from 
 
 (a) Any final decree; 
 
 (b) Any interlocutory decree, which 
 (1) Dissolves an injunction;^ or 
 
 Stage of the<i (2) Requires money to be paid; or 
 
 cause. (3) Requires title or possession of prop- 
 
 erty to be changed ; or 
 (4) Adjudicates the principles of a cause. 
 
 § 516. The same — time limit. — Appeals are limited to 
 one year after final decree.'' Hence, until a final decree has 
 been entered, there is no time limit to an appeal from an inter- 
 locutory decree. 
 
 But if the appeal be from a final decree refusing a bill of re- 
 view to a decree ren-'ered more than six months prior thereto, 
 
 " Va. Code 1919, § «337. For certain exceptions, see §§ 6336-6337. 
 See also Va. Const. § 88. 
 
 * For the efiect of a consolidation of several causes, on the amount 
 involved in the appeal, see ante §§ 349 et seq. 
 
 ' Id. § 6336. 
 
 ° Where an injunction is refused, application may be made direct 
 to the appellate court, on the original papers. Id. § 6320. See 
 Injunctions, ante, eh. xxvii. 
 
 ' Va. Code 1919, § 6337. 
 
Appeals — Record 265 
 
 the appeal may not be had except v/ithin six months from the 
 decree so refusing a bill of review.* 
 
 § 517. Method of appeal. — The procedure in appellate 
 proceedings is largely a matter of local statute law. In many 
 states an appeal may be had as a matter of right, with no dis- 
 cretion in the lower or the higher court to grant or disallow. 
 
 But in Virginia no appeal may be taken except it be allowed 
 by the appellate court, or one of the judges thereof, on a writ- 
 ten petition clearly and distinctly assigning the errors com- 
 plained of, and accompanied by a certified transcript of the rec- 
 ord in the cause.^ Reference must be had to the statute for 
 particulars. 
 
 In case the proposed appellant desires to stay further pro- 
 ceedings in the lower court, in the interval between the entry 
 of the decree and the granting of the appeal, he may secure a 
 suspension from the lower court, for a reasonable time, on mo- 
 tion, and the giving of a bond of indemnity.^" 
 
 § 518. Transcript of the record. — This is furnished by 
 the clerk, but may not be delivered to the party proposing to 
 appeal until notice of an intention to apply for such transcript 
 has been given to the other party, or his counsel. ^^ 
 
 On allowance of the appeal, the clerk of the appellate court 
 is required to have the record printed for the use of the court 
 and counsel,^- and to issue proper process against the parties 
 interested other than the appellant. ^^ 
 
 § 519. Appeal bond. — Except where the appeal is proper 
 to protect the estate of a decedent, infant, convict or insane per- 
 son, or the interest of a county, city or town in Virginia, the 
 appeal is inefifective until bond be given,^* in a penalty to be 
 fixed by the appellate court, or judge granting the appeal. If 
 the decree is for payment of money, enforcement of which has 
 
 " Id. 
 
 " Id. §§ 6356-6348. See Acts 1920, p. 416, giving counsel the right 
 of oral argument in presenting the petition. 
 '° Id. § e338. 
 " Id. § 6339. 
 " Id. § 6357. 
 " Id. § 6350. 
 " Id. § 6351. 
 
266 Equity Pleading and Practice 
 
 been suspended by a supersedeas, the bond in no case may be 
 less than the amount so decreed, or payment of which has been 
 so stayed, with interest and costs — the condition of the bond 
 being for the performance and satisfaction of the decree, or 
 that portion so stayed, in case the decree be affirmed, or the ap- 
 peal or supersedeas be dismissed; together with all damages, 
 costs and fees that may be awarded by the appellate court, etc. 
 
 § 520. The record in a chancery suit — bills of excep- 
 tion. — The difiference in the practice at law and in chancery, is 
 strikingly exemplified in the matter of the record. At law the 
 record is a bare skeleton, containing merely the pleadings, em- 
 paneling of the jury, the verdict and the judgment — none of the 
 numerous motions, exceptions to evidence, instructions given 
 or refused, nor the evidence itself, being a part of the record, 
 unless made so by a bill of exceptions. 
 
 On the other hand, in chancery every step taken in the cause, 
 and every document filed therein, from the subpoena to the final 
 decree, constitutes, or should constitute, a part of the record, 
 without special order to that effect. Hence there is no such 
 thing in chancery as a "bill of exceptions." ^^ 
 
 "^ See Livingston v. Story, 13 Pet. 339; Barrett v. McAllister (W. 
 Va.), ;12 S. .E. 1106. The case of Winston v. Gordon, 115 Va. 899, 
 illustrates bills of exception taken on trial of an issue out of chancery. 
 While the "bill of exceptions" is thus unknown in the equity practice, 
 there are still "exceptions" in equity — as to answer (though abolished 
 in Virginia); to a master's or receiver's report; to testimony oflfered, 
 etc. But these, when properly filed, become parts of the record as of 
 course. It has been heretofore pointed out that these exceptions 
 should be specifically brought to the attention of the court, and the 
 court's action thereon shown in the decree, otherwise on appeal they 
 will, as a general rule, be taken to have been waived. 
 
Forms 267 
 
 APPENDIX I. 
 
 FORMS. 
 
 In the following pages are presented the forms in a chancery 
 suit, from the subpcena to the final decree, in a suit for the spe- 
 cific performance of a contract for the sale of real property. 
 Among a few other additional forms, are the bill, answers, and 
 decree of sale, in a suit for the sale of infants' lands. 
 
 I. 
 
 The Proceedings in a Suit for Specific Performance — By 
 Vendor against Vendee.* 
 
 1. THl:; MEMORANDUM OR PR-^iCIPE. 
 
 To the clerk of the Circuit Court of Albemarle County: 
 John A. Kendrick 
 
 V. 
 
 Peter Ouinby. 
 
 Issue subpoena in chancery against the defendant, to the sher- 
 iff of Albemarle County. To first March rules. 
 Feb. 1, 1920. Lemon & Herbert, 
 
 for complainant. 
 
 2. THE SUBPOENA. 
 
 The Commonwealth of Virginia, 
 
 To the Sheriff of Albemarle County, Greeting: 
 
 We command you that you summon Peter Quinby to appear 
 before the judge of our Circuit Court for the County of Albe- 
 marle, at the clerk's office of our said court, at rules to be holden 
 therefor, on the first Monday in March next, to answer a bill in 
 chancery exhibited against him in our said court by John A. 
 Kendrick. And have then there this writ. 
 
 ♦Errors have been intentionally made, in order to illustrate to the 
 student the proper methods of taking advantage of them. 
 
268 __ Equity Pi,eading and Practice 
 
 Witness William L. Maupin, the Clerk of our said court, 
 at the courthouse thereof, this the 1st day of February, in the 
 year of our Lord 1920, and of our foundation the one hundred 
 and forty-fourth. 
 
 (Signed) William L. Maupin, 
 
 Clerk. 
 
 - 3. THE bill. [By vendor, for specific performance]. 
 
 To the Honorable John W. Fishburne, Judge of the Circuit 
 Court of Albemarle County: 
 
 The bill of your complainant, John A. Kendrick, of Albemarle 
 county, Virginia, respectfully shows unto your honor : 
 
 1. That by a written contract bearing date on the first day of 
 June, 1910, between your complainant and a certain Peter Quin- 
 by, of the same county, hereinafterwards named as defendant, 
 your complainant agreed to sell to the said defendant, and the 
 said defendant agreed to purchase from your complainant, a 
 certain house and lot situated in the village of Keswick in said 
 county, on the corner of Main Street and Maple Avenue, as 
 the streets are designated on the plan of said village, which said 
 lot is more fully described in the said written contract, a dupli- 
 cate-original of which contract, signed by both parties, is here- 
 with filed, marked "Exhibit 101," and asked to be read as a 
 part of this bill. 
 
 2. By the terms of said contract, the defendant was recpired 
 to pay, as the purchase price of said property, the sum of six 
 thousand dollars, as follows, to-wit: Fifteen hundred dollars 
 ($1,500.) in cash, and the remainder, to-wit, four thousand and 
 five hundred dollars ($4,500.), in three (3) equal annual install- 
 ments of fifteen hundred dollars ($1,500.) each, represented by 
 the three promissory notes of the defendant, bearing even date 
 with said contract, and payable to your complainant in one, two 
 and three years after date, respectively, with legal interest from 
 date, until paid — all of which will more fully and at large ap- 
 pear by reference to said written contract hereinbefore referred 
 to as Exhibit 101, and filed with this bill. 
 
 3. Your complainant further shows that in pursuance of the 
 terms of said contract, the said defendant paid to your com- 
 
Form of fiii^i, 269 
 
 plainant the cash payment of fifteen hundred dollars ($1,500.), 
 and executed and delivered to complainant the three promissory 
 notes as aforesaid. The said defendant also took possession of 
 the premises, as he was entitled to do under the said contract, 
 and has been ever since, and is nowr, in complete possession and 
 enjoyment thereof. 
 
 4. Your complainant further shows that since the cash pay- 
 ment aforesaid, the said defendant has paid nothing whatsoever 
 of the balance due under the terms of said contract, and by vir- 
 tue of the promissory notes aforesaid, and in spite of complain- 
 ant's numerous and urgent requests to do so. All of said notes 
 
 ■ are long since past due, with the interest accrued thereon. They 
 are herewith filed, marked "Exhibits 102a," "102b" and "102c," 
 respectively, and prayed to be read as parts of this bill. 
 
 5. Your complainant is advised that by virtue of the forego- 
 ing facts, he is entitled to come into a court of equity praying 
 for a decree for the specific performance of the said contract by 
 the said defendant; and, in case the said defendant shall fail or 
 refuse to perform his promises when so required by the court's 
 decree, that the court will treat the said contract as creating, by 
 implication of equity, a lien on said premises, in favor of com- 
 plainant," for the security of the unpaid purchase money afore- 
 said ; and that the court in this proceeding will enforce the said 
 lien by subjecting the said property to payment of the balance 
 due as aforesaid. 
 
 . Your complainant is further advised that in case of a sale of 
 the said property, for the enforcement of his lien aforesaid, a 
 sufficient sum shall not be realized to satisfy the balance due, 
 the court will render a personal decree against the defendant 
 for the residue. 
 
 6. Your complainant hereby avers his willingness and ability 
 to make proper conveyance of the said premises to said defend- 
 ant, with perfect legal title, as soon as the said purchase money 
 has been paid to him. And complainant hereby offers to file 
 such conveyance, duly executed, among the papers in this cause, 
 whenever the court may so order. ^ 
 
 ^ In some jurisdictions it is held that complainant vendor in a suit 
 for specific 'performance must file a deed of conveyance along with his 
 
270 Equity Pi,eading and Practice 
 
 7. In consideration of the premises, and forasmuch as com- 
 painant is without remedy save in a court of equity where mat- 
 ters of this kind are only and properly cognizable, your com- 
 plainant prays : 
 
 (1) That the said Peter Quinby be made a party defendant 
 to this bill, and may answer the same, but not under oath. 
 
 (2) That a decree be entered against the said defendant re- 
 quiring him, within such reasonable time as the court may or- 
 der, to pay to your complainant the unpaid purchase money, 
 with the interest thereon, as aforesaid ; and, in default of such 
 payment, that the said premises may be sold under the orders 
 and direction of the court, and that the proceeds, or so much 
 thereof as may be necessary, be paid over to your complainant 
 to satisfy the balance due him as aforesaid, together with the 
 costs of this suit, including a fee of one hundred and fifty dol- 
 lars ($150.) to complainant's attorney herein. ^ 
 
 (3) That in case of the defendant's default in payment of 
 the balance due to complainant, and a deficiency for that pur- 
 pose shall result from a sale of the said property, a personal 
 decree may be entered against the defendant for such deficiency. 
 
 (4) That all such other things be ordered and done as may 
 be necessary for the complete disposition of this cause; and for 
 such other relief, both general and special, as to equity may 
 seem meet and the nature of the case may require. 
 
 And your complainant will ever pray, etc. 
 Lemon & Herbert, 
 
 Charlottesville^ Va., 
 
 Solicitors for Complainant. 
 
 bill — though the better rule is contra. This clause, as here worded, 
 would Iprobably comply with the rule of practice even in those states 
 holding the minority View. The latter view was maintained in Wood 
 V. Walker, 93 Va. 24, but, as shown by Judge Burks in a criticism Of 
 this ruling, in 1 Va. Law Reg. 443, it was probably erroneous. There 
 is a distinct ruling to the contrary by Staples, J., in Whitten v. 
 Saunders, 75 |Va. .563, 570, nor does the minority view seem based 
 on any sound reason. 
 
 " See post, for defendant's demurrer to this prayer for an attorney's 
 fee. 
 
Forms: Demurrer — Order OvErruIvING 271 
 
 4. demurrer to bili,. 
 
 Kendriclc The demurrer of Peter Quinby to a bill of com- 
 
 V. plainant exhibited against him in the Circuit Court 
 
 Quinby. of Albemarle county by John A. Kendrick. 
 
 This defendant says that the said bill is insuffi- 
 cient in law, and especially in this : ( 1 ) That the said com- 
 plainant has not tendered aloug with his bill a proper deed of 
 conveyance of the said premises to this defendant; and for fur- 
 ther cause of demurrer, (2) that the said bill seeks an allow- 
 ance to complainant's counsel for an attorney's fee of one hun- 
 dred and fifty dollars, without any special allegations rendering 
 such an allowance, or any allowance, proper; for which second 
 cause this defendant demurs to so much of said bill as prays for 
 such inequitable allowance. And for further cause of demurrer, 
 (3) that the bill shows on its face that the plaintiff's alleged 
 cause of action did not arise within five years before the insti- 
 tution of this suit. 
 
 Appleby & Pearmon, 
 
 Solicitors for Defendant. 
 
 5. order op the court : Ck/er-ruling demurrer to hill in part. 
 
 Kendrick This cause came on this day to be heard on the 
 
 V. bill of the plaintiff and the exhibits filed therewith, 
 
 Quinby. and on the demurrer of the defendant to said bill, 
 
 and was argued by counsel. 
 
 On consideration whereof, the court deeming as not well 
 taken the first cause in said demurrer alleged, namely, that the 
 plaintiff has not tendered a conveyance with his bill, doth over- 
 rule the said demurrer as to said first cause alleged. 
 
 And the court being of opinion that the question of the stat- 
 ute of limitations may not be raised by demurrer, doth likewise 
 overrule the said demurrer as to said third cause alleged. 
 
 And as to the second cause of said demurrer, namely, the in- 
 sufficiency of said bill in failing to allege proper or any grounds 
 for the allowance of the attorney's fee therein prayed, the court 
 doth sustain the same. But leave is given to the plaintiff to 
 amend his bill in that respect if he shall be so advised. 
 
272 Equity Pleading and Practice 
 
 6. defendant's plea: Statute of limitations. 
 
 Kendrick The plea of Peter Quinby to a bill of com- 
 
 V. plaint filed against him in the Circuit Court of 
 
 Quinby. Albemarle county, by John A. Kendrick. 
 
 For plea to the said bill, and to the whole and 
 every part thereof, and to all and every the relief therein prayed, 
 this defendant says that neither the complainant's alleged 
 grounds of relief, nor any claim in said bill asserted, arose 
 within five (5) years before the bringing of this suit. 
 
 Wherefore -defendant prays judgment whether he shall be 
 compelled to make answer to said bill, and prays to be hence 
 dismissed with his reasonable costs and charges in this behalf 
 expended. 
 
 Appleby & Pearmon, 
 
 Solicitors for Defendant. 
 
 7. entry by clerk : Plea set down for argument. 
 
 [Title of the On motion of the plaintiff, by counsel, defend- 
 cause]. ant's plea is set down for argument. 
 
 8. ORDER OF THE COURT: Plea disallowed 
 
 [Title of the This cause came on this day to be again heard 
 cause]. on the papers formerly read, and on the plea 
 
 the defendant, set down for argument on the 
 plaintiff's motion, and was argued by counsel. 
 
 On consideration whereof, the court being of opinion that 
 the statute of limitations set up in said plea is not a valid de- 
 fense to the whole of the relief prayed in the bill ; and the said 
 plea being to the whole of such relief, and not to a part thereof, 
 the court doth for that cause disallow the said plea, but without 
 prejudice to the respondent's right, by answer, to assert the same 
 defense to that portion of the bill which prays for a personal 
 decree. And the defendant is ordered to answer the bill within 
 fifteen days from the date of this order. 
 
 9. defendant's ANSWER. 
 
 The answer of Peter Quinby to a bill of complaint filed 
 against him in the Circuit Court of Albemarle county, by John 
 A. Kendrick. 
 
Form of Answer 273 
 
 This respondent [re,serving to himself the benefit of all just 
 exceptions which may be had or taken to said bill by reason of 
 its many errors and imperfections, both of form and sub- 
 stance] ^ for answer to said bill, or to so much thereof as he is 
 advised it is material that he should answer, answering says : 
 
 1. That the allegations of the first and second clauses of the 
 said bill, with respect to the contract of sale and purchase be- 
 tween respondent and complainant, of the premises therein re- 
 ferred to, are substantially true, and that the paper Exhibit 
 "101" filed with the bill is a duplicate original of said contract; 
 and that Exhibits 102a, 102b and 102c are the original promis- 
 sory notes executed by respondent according to the terms of the 
 said contract. It is also true that respondent has been in pos- 
 session of the said premises since the execution of said contract 
 and of said notes. 
 
 2. But it is not true that respondent has made no payment on 
 the said deferred insallments of purchase money. On the con- 
 trary respondent avers that he has, from time to time, made 
 numerous payments on said notes, amounting in the aggregate 
 to two thousand and seven hundred dollars ($2,700), in addi- 
 tion to the cash payment of one thousand and five hundred dol- 
 lars ($1,500). Respondent files herewith, as a part of this an- 
 swer, a more accurate and more detailed statement of such pay- 
 ments, with their respective amounts and dates — such statement 
 being marked Exhibit "P. Q." Respondent also files as a part 
 of this answer, receipts for each payment claimed, signed by 
 Adam L. Henderson, attorney for complainant, which said at- 
 torney had due authority to receive such payments on behalf 
 of the complainant and to give receipts therefor. These re- 
 ceipts are marked Exhibits ".P. Q. 1", "P. O. 2" and "P. Q. 3", 
 respectively. 
 
 3. Respondent, further answering, says that having full con- 
 fidence in the integrity of the complainant, respondent accepted 
 without question the assurance of complainant that the complain- 
 ant had complete and perfect title to said property, with right to 
 convey the same by his sole deed when said purchase money was 
 paid. But respondent has since ascertained from reputable 
 
 ' Old form — may be omitted. 
 
274 Equity Pi,e;ading and Practice 
 
 sources, and hence avers and charges, that at the time the said 
 contract was made, the complainant was not an unmarried per- 
 son as he fraudulently induced respondent to believe, but that 
 he was then the husband of a living wife, to-wit, Sarah O. Ken- 
 drick (who was Sarah Owen), who is still living, and who was 
 then, and is now, a person non compos mentis, and who is now, 
 and has been for many years, confined in the State Hospital for 
 the Insane at Staunton. And respondent is advised that the 
 said wife of the complainant has a contingent right of dower in 
 the premises in controversy in this suit, and hence that should 
 respondent be compelled to pay the balance of said purchase 
 money, the complainant would be wholly unable to convey to 
 respondent a complete title to said property. Respondent is 
 therefore advised that not only will the court not compel him to 
 accept an imperfect title to the said premises, but will, in a 
 proper proceeding, rescind the said contract ab initio, and will 
 require the complainant to repay to respondent the various sums 
 heretofore paid by respondent to complainant as payment for 
 said premises as aforesaid, with interest from the respective 
 dates of such payments. 
 
 Respondent is further advised that while such failure of title 
 is a perfect defense to the bill of the complainant, it will be 
 necessary in order to obtain the affirmative relief of. rescission 
 to which respondent is entitled, that he file a cross-bill in this 
 suit, unless the court should see fit to treat respondent's answer 
 as a cross-bill, "hich respondent now prays that the court will 
 do. 
 
 3. And for a further defence in this behalf, respondent al- 
 leges — and the same appears from the face of the bill — that the 
 indebtedness asserted in the bill did not arise within five years 
 from the institution of this suit. Wherefore respondent is ad- 
 vised, and therefore avers, that no personal decree may be ren- 
 dered against him in this suit, because any such personal re- 
 course is barred by the statute of limitations. 
 
 And having full-y answered, respondent prays to be hence dis- 
 missed with his reasonable costs in this behalf expended. 
 
 Appleby & Pearmon, 
 
 Solicitors for Respondent. 
 
Form of Ceoss-BiIvL 275 
 
 10. plaintiff's motion to strike out.* 
 
 [On motion to strike out the defense of the statute of limita- 
 tions set up in the answer foregoing, it is assumed that the court 
 denies the motion — thus in effect (since the facts appear from' 
 the bill itself) ruling that the prayer of the bill for a personal 
 decree against the defendant is denied, because defendant's per- 
 sonal liability is barred by the statute of limitations.] 
 
 11. GENERAL replication TO ANSWER.^ 
 
 Kendrick For replication to said answer, the plaintiff, by 
 
 V. counsel, says that the matters and things in said 
 
 Quinby. answer alleged as defensca to the plaintiff's bill are 
 
 not true. 
 Lemon & Herbert, 
 for complainant. 
 
 12. cross-bill by defendant : Praying rescission of contract 
 and return of payments made. 
 
 To the Honorable the Judge of the Circuit Court of Albemarle 
 county : 
 The cross-bill of your complainant, Peter Quinby, respectfully 
 shows unto your honor : 
 
 1. That there is pending in your Honor's court a certain suit 
 in- chancery, under the short style of Kendrick v. Quinby, in 
 which suit a certain John A. Kendrick is complainant, and your 
 complainant herein is defendant. 
 
 2. That the purpose of the said suit is to compel the specific 
 performance of a certain contract for the sale and purchase of 
 certain real property, in which contract the said Kendrick was 
 vendor and your complainant was vendee — all of which will 
 more fully and at large appear, reference being had to the plead- 
 ings and exhibits in raid original suit, which said pleadings and 
 exhibits are prayed to be taken as parts of this cross-bill, as fully 
 and effectually as if herein specifically recited. 
 
 * See Text, ante, § 3-48. 
 
 ° Rarely written out at length, and usually appearing in the rec- 
 ord only by clerk's entry on his docket "Gen'l. Repl'n," or recited in 
 the first decree as having been filed. Now required tto be entered, as of 
 course, by the clerk. Va. Code 1919, § 6138. 
 
276 Equity Pleading and Practice 
 
 3. Making specific reference to said contract, . your complain- 
 ant charges that the said Kendrick, plaintiff in said original bill, 
 agreed, upon the payment of six thousand dollars ($6,000.) of 
 purchase money, payable as shown in said contract, to convey 
 to your complainant a perfect title to the premises in the said 
 bill and proceedings mentioned. 
 
 4. Your complainant further shows that believing that the 
 defendant herein was an unmarried person (as he falsely pre- 
 tended to be) and had complete title in himself to said p-em- 
 ises, and could convey to your complainant a perfect title thereto 
 by his sole deed, your complainant entered into said contract in 
 good faith, and, in like faith, undertook to pay the purchase 
 money according to the terms of the said contract. 
 
 5. Your complainant further shows that he made the cash 
 payment called for by the terms of said contract, to-wit, one 
 thousand and five hundred dollars ($1,500.), on the day the 
 said contract bears date, to-wit, June 1, 1910; and that subse- 
 quently he paid various large sums of money to the said Ken- 
 drick, through the latter's duly authorized attorney, a certain 
 Adam L. Henderson, as credits on complainant's notes held by 
 said Kendrick, and representing the deferred installments of 
 purchase money due under said contract. 
 
 Your complainant has already filed with his answer in the 
 said original suit, a detailed statement of all the payments so 
 made by him under said contract — which statement is designated 
 as Exhibit "P. Q.", and now prayed to be read, along with the 
 vouchers accompanying the same, as a part of this cross-bill as 
 if copied herein at large. The aggregate principal amount of 
 such payments, including the said cash payment of fifteen hun- 
 dred dollars ($1,500.), is forty-two hundred dollars ($4,200), 
 as shown in the exhibit la'^t mentioned. 
 
 6. Your complainant further shows to the court that in spite 
 of the said Kendrick's reiterated assertions to the contrary, 
 fraudulently made to induce your complainant to enter into the 
 said contract, the said Kendrick was not, at the time the said 
 contract was made, an unmarried person ; but on the contrary 
 complainant avers and charges that he was at that time, and is 
 now, the husband of one Sarah O. Kendrick (formerly Sarah 
 
Form of Cross-Bill 277 
 
 Owen), who is still alive, and a lunatic, and is now, and for 
 many years previously has been, confined in the State Hospital 
 for the Insane at Staunton. 
 
 Your complainant is advised that the said wife has a con- 
 tingent right of dower in the property so contracted to be sold 
 to your complainant, by reason whereof it will be impossible for 
 the defendant herein to make to your complainant a complete 
 title to said premises after the payment of said purchase money 
 — and hence that not only will the court for that reason refuse 
 the relief of specific performance prayed for in said original 
 bill, but that, on this ci-oss-bill filed for the purpose, the court, if 
 satisfied of the truth of the allegations hereinbefore made, will 
 rescind the said contract ab initio, and will require the said de- 
 fendant herein to repay to your complainant all moneys paid tq, 
 said defendant under said contract, with interest from the date 
 of such payments, respectively. 
 
 Your complainant is further advised that on a decree for a 
 rescission of the said contract, and for a return of the purchase 
 money so paid, he will be entitled, in equity, to assert a lien on 
 the premises in question to secure performance by the defend- 
 ant of such personal decree as may be rendered against him un- 
 der the prayers of this cross-bill. 
 
 Being without other remedy, your complainant prays that he 
 may be permitted to file this his cross-bill- in said suit; that the 
 said John A. Kendrick, complainant in the original bill, be made 
 a party defendant hereto, and may answer the same, but not 
 under oath; that the contract in the bill and proceedings men- 
 tioned may, for the reasons hereinbefore assigned, be declared 
 null and void and of no effect ; that the defendant herein be 'de- 
 creed to repay to your complainant the said sum of forty-two 
 hundred dollars (4,200.), with interest from the respective dates 
 of such payments; that complainant's equitable lien aforesaid be 
 recognized, and, if necessary, enforced ; and for such other re- 
 lief, both general and special, as to equity may seem meet and 
 the nature of the case require. And your complainant will evei 
 pray, etc. 
 
 Applbby & Pearmon, 
 
 Solicitors for Complainant in Cross-Bill. 
 
278 Equity Pleading and Practice 
 
 13. PIvAINTlFF'S DEMURRER TO CROSS-BIIyL.* 
 
 Kendrick The demurrer of John A. Kendrick to a cross- 
 V. bill filed against him in the Circuit Court of Albe- 
 
 Quinby. marie county, in a suit in chancery therein pending 
 under the short style of Kendrick v. Quinby: 
 
 This defendant in said cross-bill says that the said cross-bill 
 is not sufficient in law, and especially in this, to-wit : ( 1 ) Be- 
 cause, assuming the existence of this defendant's alleged wife 
 and her alleged insanity, there is no allegation that she is in- 
 curably insane, and hence, so far as concerns the allegations of 
 said cross-bill, the said wife, if she in fact exists, may recover 
 her sanity in time to unite with this defendant in making title 
 to the complainant in the cross-bill; (2) Because, in spite of 
 the alleged insanity of the said wife, the court has full power 
 in this suit to require this defendant to give proper indemnity 
 to the complainant against any loss or damage to accrue by rea- 
 son of such alleged contingent right of dower in said alleged 
 wife of defendant, which indemnity is already under the con- 
 trol of the court in the form of the unpaid purchase money due 
 by said complainant to this respondent in the cross-bill. 
 
 Wherefore defendant demurs to said cross-bill, and to every 
 part thereof, and to all and every the relief therein prayed for, 
 and says that the same is not sufficient in law. He therefore 
 prays judgment whether he shall be reqjuired to answer the 
 same. 
 Lemon & Herbert, 
 
 Por Defendant in Cross-Bill. 
 
 14. order oE the court: Demurrer to cross-bill overruled. 
 
 Kendrick This cause came on this day to be again heard 
 V. on the papers formerly read, on the cross-bill of 
 
 Quinby. thft defendant, filed by leave of court, and on the 
 plaintiff's demurrer to said cross-bill and was ar- 
 gued by counsel. 
 
 On consideration whereof, the court being of opinion that the 
 allegation of present insanity of the wife of the defendant in the 
 cross-bill is sufficient for the purposes of the said cross-bill — 
 
 Both grounds of demurrer overruled — see infra. 
 
Form of Answer to Cross-Bill 279 
 
 and the coui-t being further of opinion that it would be contrary 
 to the rules of equity to compel or allow a vendor-husband to 
 accept indemnity against the contingent dower right of his wife, 
 the court doth overrule the said demurrer for both causes al- 
 leged. 
 
 IS. PLAINTIFI'^S ANSWER TO CROSS-BILL. 
 
 The answer of John A. Kendrick to a cross-bill of complaint 
 filed against him by a certain Peter Quinby, in a certain suit in 
 chancery depending in the circuit court of Albemarle county, in 
 which suit this respondent is plaintiff, and the complainant in 
 said cross-bill is defendant. 
 
 For answer to said cross-bill, this respondent says : 
 
 1. That the allegations of said cross-bill with reference to 
 the marriage of this respondent to a certain Sarah Owen, are 
 wholly false and without any foundation whatsoever. On the 
 contrary, respondent distinctly and unequivocally denies that he 
 was ever married to the said Sarah Owen, or to any other per- 
 son whomsoever; but he avers that at the time the contract 
 which is the foundation of this controversy was made, he was 
 an unmarried person, and has so continued to the present mo- 
 ment. Respondent is at a loss to understand why the complain- 
 ant in the cross-bill should have set up a Tief ense which he must 
 have known was utterly unfounded, unless it should have been 
 for the purpose of prolonging this litigation, and thus securing 
 to himself a continued use of the said property of which he has 
 so long enjoyed possession without complying with the terms 
 of the contract under which he secured such possession. 
 
 2. Further answering, this respondent, with equal emphasis 
 and directness, denies that the said complainant has at any time 
 paid to him, in person or through his duly authorized agent or 
 attorney, or through any other person, any such sums of money 
 as complainant in his said cross-bill has so recklessly alleged, or 
 any other sums at any time, or in any manner, save the cash 
 payment made at the time the said contract was entered into, as 
 shown in the original bill. If any such payments were made to 
 the said Adam L. Henderson, as attorney for respondent, as 
 alleged in the cross-bill (which payments respondent does not 
 
280 Equity Pleading and Practice 
 
 admit were in fact made), such payments were made wholly at 
 the risk of the said complainant, since respondent here and 
 now, in the most emphatic manner, denies that said Adam L. 
 Henderson ever had authority, express or implied, from re- 
 pondent to act as his agent or attorney in connection with this 
 contract, or in any other matter. And respondent further de- 
 nies that he ever received any of said alleged payments, or any 
 portion thereof, from or through the said Adam L. Henderson, 
 or any other person. 
 
 And having fully answered, respondent prays to be dismissed 
 from the proceedings on said cross-bill, with his reasonable costs 
 about his defense in this behalf expended. 
 Lbmon & Heebert, 
 
 For respondent in Cross-Bill. 
 
 [To this answer complainant in the cross bill files a general 
 replication.'] 
 
 16. the testimony. 
 
 [The whole case, oh bill and cross-bill, and the several defen- 
 sive pleadings, is now ready for the taking of testimony. A 
 careful study of the pleadings will indicate what the issues are, 
 namely, (1) Has the , plaintiff a living mife, who is entitled to 
 dower in the property in controversy? (2) What payments has 
 the defendant made to the plaintiff, under the contract, and what 
 is the balance due? 
 
 The questions of (1) attorney's fees; (2) necessity of filing 
 a conveyance with the bill; (3) compelling defendant to accept 
 indemnity against the contingent right of dower in the alleged 
 wife of plaintiff; (4) the right of defendant to a rescission, if 
 the alleged wife of plaintiff is alive; and (5) the statute of limi- 
 tations — have all been settled by the decision of the court on 
 the several objections to pleadings in the form of (a) demurrer 
 to the bill, (b) plea set down for argument, and (c) demurrer 
 to cross-bill. 
 
 The evidence to be taken, therefore, will be confined to the 
 two issues of fact recited above.] 
 
Form of Depositions 281 
 
 17. depositions. 
 
 Kendrick 
 
 V. On Original Bill. 
 
 Quinby 
 
 and 
 Quinby 
 
 V. On Cross-Bill. 
 
 Kendrick 
 
 The depositions of A, B, C and others taken, in pursuance of 
 the notice hereto attached, [or taken by consent of parties] be- 
 fore me, Howard Winston, a Notary Public in and for the 
 county of Albemarle, in the state of Virginia, on the 14th day 
 of November, 1921, at my office in the Colonnade Club Build- 
 ing, West Lawn, University of Virginia, between the hours of 
 9 A. M. and 6 P. M., to be read as evidence in behalf of the 
 plaintiff in the original bill, [or for the defendant, as the case 
 may be] in a certain suit in chancery depending in the Circuit 
 Court of Albemarle county, under the style of Kendrick v. 
 Quinby, on original bill, and Quinby v. Kendrick, on cross-bill. 
 
 Present : 
 
 John R. Lemon, for complainant. 
 
 R. C. Appleby, for respondent. 
 
 The witnesses whose several depositions follow, being duly 
 sworn to speak the truth, the whole truth and nothing but the 
 truth, depose and say: 
 
 First witness: James A day. 
 
 1st question by plaintiff's counsel : Please state your age, 
 residence and occupation. 
 
 Answer: James Aday — Preston Heights, University, Va. — 
 Law student. 
 
 2nd question: Please state whether you know the plaintiff in 
 this suit, how long you have known him, and what your rela- 
 tions with him have been and are. 
 
 Answer: I do. I have known him intimately for four years, 
 and our relations have been quite close and friendly, etc., etc. 
 
282 Equity Pleading and Practice 
 
 Cross-examination by defendant's counsel. 
 1st Cross-question: Please say whether, etc., etc., etc. 
 
 Re-cxamination by counsel for plaintiff, 
 ist question: In your answer to Mr. Appleby's 14th cross- 
 question you say, etc., etc. Please explain precisely what you 
 mean by that answer. Etc., etc., etc. 
 And further the deponent saith not. 
 
 (Signed) James Aday. 
 Second witness : Benj. Brown. 
 [Examined in chief — cross-examined and re-examined, and 
 deposition signed, as in the case of the first witness. 
 
 If there are other witnesses to be examined at the same sit- 
 ting, their depositions follow. When the depositions at that 
 sitting are closed, the notary attaches a certificate substantially 
 in the following form : ] 
 
 I, Howard Winston, a notary public in and for the county 
 of Albemarle in the state of Virginia, do certify that the fore- 
 going depositions of James Aday, Benjamin Brown, etc., etc., 
 were duly taken, sworn to and subscribed before me at the time 
 and place and for the purpose in the caption mentioned. 
 
 Given under my hand [and seaH] this the 14th day of No- 
 vember, 1921. 
 
 (Signed) Howard Winston, 
 
 Notary Public. 
 ' My commission expires March 3, 1923. 
 
 18. decree: Dismissing cross-bill, and order of reference to a 
 
 muster. 
 Note for decree, December Term ig2i. 
 John A. Kendrick >i 
 
 V. \. On Original Bill. 
 
 Peter Quinby J 
 
 and 
 Peter Quinby "| 
 
 V. y On Cross-Bill. 
 
 John A. Kendrick J 
 
 This cause came on this day to be again heard on the papers 
 
 ' The !use of ^he notary's iseal is almost universal, but it is not 
 required in 'Virginia where the attested document is taken and is 
 to be used within the state. 
 
Form of Order of Reference 283 
 
 formerly read, on the answer of the defendant Peter Quinby, 
 to the original bill, with geneneral replication thereto, on the 
 cross-bill of the said defendant Peter Quinby, filed by leave of 
 court, and on the exhibits therewith filed, on the answer of the 
 plaintiiif to said cross-bill, with general replication thereto, and 
 oh the depositions of witnesses for both plaintiff and defendant, 
 and was argued by counsel. 
 
 On consideration whereof, the court being satisfied from the 
 testimony that the plaintiff is not the husband of a living wife, 
 and ihat, in consequence, the title to the property in the bill and 
 proceedings mentioned is not now, and was not at the commence- 
 ment of this suit, encumbered by the contingent right of dower 
 as alleged in the answer and cross-bill of the defendant, but 
 that, on the contrary, the plaintiff is able and willing to per- 
 form his contract by conveying a perfect title to the defendant, 
 it is adjudged, ordered and decreed that the cross-bill of the de- 
 fendant be and the same is hereby dismissed at the costs of the 
 said defendant. 
 
 And the court being unable at this time to ascertain from the 
 testimony what amounts the defendant has paid to the plaintiff 
 on said contract of sale and purchase, and what balance actually 
 remains unpaid, the court doth adjudge, order and decree that 
 this cause be referred to one of the masters of this court, with 
 directions to take, state and settle an account showing what the 
 said balance due under said contract is, with the date or dates 
 from which the same, or the several parts thereof, bear interest. 
 And said master will report to the next term of this court 
 how he has executed this decree, for such further order in the 
 premises as the court may be advised. 
 
 Kendrick 
 
 V. 19. master's report. 
 
 Quinby. 
 
 Commissioner's Office, 
 
 Jan. 13, 1922. 
 
 To the Honorable John W. Pishburne, Judge of the Circuit Court 
 of Albemarle County. 
 The undersigned master begs leave respectfully to report that 
 
284 Equity Pleading and Practice 
 
 in accordance with the directions of a decree of your honor's 
 court, entered at the December term, 1921, in the above entitled 
 cause, and after giving due notice to the parties thereto, the 
 undersigned proceeded on the third day of January, 1922, to 
 take said account. Both parties appeared in person and by coun- 
 sel, and much testimony, both in the form of depositions of wit- 
 nesses and of documents, was introduced on such hearing. All 
 of the testimony introduced before the master is herewith re- 
 turned for the inspection of the court. The proceedings were 
 adjourned from time to time to suit the convenience of the .par- 
 ties; and the report is made up as of the 12th day of January, 
 1922. 
 
 The conclusion of the undersigned is herewith submitted in 
 the form of a statement marked "J\d^aster's Exhibit number 1." 
 From this statement it appears that the defendant made sundry 
 payments from time to time under the contract in question, some 
 of which payments were made to the plaintiff personally, but 
 most of them were made to one Adam L. Henderson, as attor- 
 ney for the plaintiff. The plaintiff, in his pleadings and by his 
 evidence before the master, denied the authority of the said 
 attorney to represent him in the matter, but the master is of 
 opinion that the defendant has established the contrary by a 
 preponderance of testimony, and the account has been made up 
 on the basis of the validity of all paynients so made to said 
 Henderson in that behalf. 
 
 The statement referred to shows a balance of principal due 
 the plaintiff of $2,375, with interest thereon from July 17, 1915, 
 until paid, and the master recommends a decree for that amount 
 in the plaintiff's favor. 
 
 Respectfully submitted, 
 
 W. R. Seweli., 
 
 Master. 
 Master's f ee :^ 
 
 47 hours at $1.— $47. 
 Paid by plaintiff. 
 
 W. R. S. 
 
 ° The master is required to make affidavit that he was diligently 
 employed for the number of hours stated in his report. Va. Code 
 1919, § 3482. 
 
Form of Exceptions to Master's Report 285 
 
 20. pi:,aintiff's exceptions to report: 
 
 [Title of' the The plaintiff by counsel excepts to the report 
 cause.] of W. R. Sewell, master, filed in this cause on 
 
 January 13, 1922, and for ground of exception 
 asserts that the finding of the master that the said Adam L. 
 Henderson was in fact plaintiff's attorney, and authorized to re- 
 ceive payments from the defendant on the plaintiff's behalf, is 
 based on no valid testimony in the cause, but rests chiefly on 
 hearsay testimony, to which the plaintiff duly excepted when it 
 was offered, as will appear by reference to the depositions fil''d 
 with the said report. The plaintiff makes special reference to 
 the depositions of P, Q, R and S, filed with the master's report, 
 as being the only testimony offered by defendant to establish 
 said Henderson's authority, none of which depositions, nor all 
 combined, would even tend to prove such authority, if the hear- 
 say and incompetent testimony therein were excluded. 
 Respectfully submitted. 
 
 Lemon & Herbert, 
 for Complainant. 
 
 21. DECREE: Sustaining exceptions to master's report, and or- 
 dering payment by defendant. 
 
 Note for decree February term, 1922. 
 
 Kendrick This cause came on this day to be again heard on 
 
 V. the papers formerly read, and on the report of W. 
 
 Quinby. R. Sewell, master filed on the 13th day of January, 
 
 1922, and on the plaintiff's exceptions to said report, 
 
 and was argued by counsel. 
 
 On consideration whereof, the court being satisfied from an 
 examination of the said report and of the testimony excepted to, 
 that the plaintiff's exceptions to said testimony, and to said re- 
 port, are well taken, doth sustain the said exceptions, and doth 
 reject the findings of the master in the particulars following, to- 
 wit: That is to say, the court finds, and so adjudges, that the 
 defendant is not entitled to credit for any of the payments 
 shown by the master's statement to have been made to Adam L. 
 Henderson, alleged attorney for plaintiff, but is entitled to credit 
 only for such payments as are shown by said statement to have 
 
286 Equity Pleading and Practice 
 
 « 
 
 been made to the plaintiff personally. And it appearing that 
 the rejected credits may be ascertained by a mere inspection of 
 the said report and statement, and that the balance then due the 
 plaintiff may be ascertained by a statement made up at the bar 
 of the court by counsel, under direction of the court, the court 
 deems it unnecessary to refer the said report back to the mas- 
 ter for further proceedings. In other particulars the said report 
 is confirmed. 
 
 Adopting, therefore, the statement so made up at the bar of 
 the court, as exhibiting the true state of the account between the 
 parties, and which is ordered to be filed with the papers in this 
 cause, and it appearing from such statement that the balance so 
 due is represented by what follows, the court doth adjudge, or- 
 der and decree that the defendant do, within 60 days from the 
 entry of this decree, pay to the plaintiff the sum of $3,650, with 
 legal interest thereon from the 13th day of August, 1917, until 
 paid, together with the costs of this suit. 
 
 The court doth further adjudge, order and decree that before 
 demanding payment of the sum hereinbefore decreed, the plain- 
 tiff shall file with the clerk of this court, as a part of the record 
 in this cause, a proper deed of conveyance, properly executed, 
 acknowledged and certified, conveying the property in the bill 
 and proceedings mentioned to the defendant, or to such person 
 as he may, in writing, filed with the papers in this cause, direct — 
 such conveyance to contain the usual covenants of warranty, 
 and to be delivered by the clerk to the defendant, upon written 
 acknowledgment of the plaintiff, or his counsel, that the defend- 
 ant has fully satisfied this decree. 
 
 And the court doth retain the cause for such further proceed- 
 ings as may be necessary, in case the defendant shall neglect or 
 refuse to obey the mandate of this decree. 
 
 Notes on the foregoing decree. 
 1. If the defendant performs the decree, he receives his con- 
 veyance, and the plaintiff his purchase money, so that there is 
 no need of further continuing the cause on the docket. In which 
 case, on motion of the plaintiff, an order is entered that "the 
 objects of this suit having been accomplished it is ordered to be 
 stricken from the docket." 
 
Forms 287 
 
 2. If the decree be not performed, the plaintiff will ask for 
 a decree subjecting the property to his vendor's (legal) lien, as 
 set out in the bill — in which case there may be the following 
 further proceedings — the precise proceedings depending some- 
 what on circumstances : 
 
 1. Decree appointing a special commissioner to make sale 
 of the property, on terms prescribed in the decree. 
 
 2. Sale by the commissioner. 
 
 3. Report of sale, by the commissioner to the court. 
 
 4. Confirmation of the sale by the court — or rejection and 
 order for a re-sale. 
 
 5. Order to commissioner, to collect the purchase money, 
 as the installments fall due. 
 
 6. Reports of the commissioner, from time to time, show- 
 ing the amount of his collections. 
 
 7. Orders, from time to time, directing the commissioner 
 to pay over to plaintiff such balance as he has in his 
 hands, as a credit on plaintiff's debt. 
 
 8. After the purchase money is paid in full by the pur- 
 chaser at the judicial sale, an order is made appointing 
 a special master (or commissioner) to convey the title 
 to the purchaser. 
 
 9. After plaintiff's balance is all paid, and the costs pro- 
 vided for, an order is entered directing the net balance 
 
 to be paid over to the defendant. 
 10. Filing of commissioner's final report — its confirmation 
 by the court, and an order dismissing the cause from 
 the docket. 
 
288 Equity Pi^eading and Practice 
 
 II. 
 
 Suit for sale of Infants' Lands. 
 
 Under Virginia Code 1919, Chapter 217. 
 (See the Text, ante, chapter xxx.) 
 
 1. THE BII,!,. 
 
 To the Honorable Archibald D. Dabney, Judge of the Corpora- 
 tion Court of the City of Charlottesville. 
 The Bill of Allan W. Perkins, guardian of the infant defend- 
 ants hereinafterwards named, respectfully represents unto your 
 Honor : 
 
 1. That by an order of your honor's court entered at the De- 
 cember term thereof, 1921, your complainant was duly appointed 
 guardian of John Winston Aday, Thomas Quincey Aday, and 
 Lucy Blanton Aday, aged respectively fifteen (15), thirteen (13) 
 and nine (9) years, the children of Henry Aday, and his wife, 
 Lucy B. Aday (nee Blanton), of the City of Charlottesville, and 
 both now deceased. 
 
 Your complainant duly qualified as such guardian, by giving 
 the required bond and taking the prescribed oath, as will appear 
 from a certified copy of the said order of appointment and qual- 
 ification filed herewith, marked "Exhibit 1", and asked to be 
 read as a part of this bill. 
 
 2. The mother of the said infants, the said Lucy B. Aday, 
 died several years ago, intestate, and without leaving any estate 
 of value. 
 
 3. The father of the said infants, the said Henry P. Aday, 
 died on the 17th day of July, 1921, in the City of Charlottesville, 
 where he had long resided. During his lifetime he had accumu- 
 lated a considerable estate, all of which, by his will, admitted to 
 probate in in your honor's, court, at the November term thereof, 
 1921, he devised and bequeathed, in absolute estate, to his said 
 three surviving children, equally to be divided amongst them. 
 A verified copy of such will is herewith filed as a part of this 
 bill, marked "Exhibit 2." 
 
 4. The estate so devised and bequeathed to said infants, and 
 now in the possession and control of your complainant as their 
 guardian, consists of both real and personal estate, and is prob- 
 ably worth at present market prices from $50,000 to $60,000. 
 
Forms : Bill for Sale of Infants' Land 289 
 
 5. The personal estate so passing to said infants, and now 
 in possession and control of your complainant as their guardian, 
 is as follows: 
 
 (a) Household and kitchen furniture, books, silverware, pic- 
 tures and like articles contained in the testator's late residence, 
 worth probably $1000. 
 
 (b) Fifty (50) shares of the stock of the Charlottesville 
 Woolen Mills, of the estimated market value of $6000. 
 
 (c) Cash in bank (the Peoples National Bank of Charlottes- 
 ville), to complainant's credit as guardian, $2752.63. 
 
 (d) Sundry unsettled open accounts due the testator's estate, 
 and now in course of collection by the executor, of unknown 
 and doubtful value, and which on a liberal estimate will not 
 realize more than $250. 
 
 So far as complainant is informed and believes, the prop- 
 erty mentioned above is all of the personal estate belonging to 
 said infants. 
 
 6. The real estate belonging to said infants, and all derived 
 under the testator's will before mentioned, consists of the fol- 
 lowing parcels : 
 
 (A) The late dwelling house of the testator, known as 1396 
 University Place, in the City of Charlottesville — still occupied 
 as a home by said infants, who are under the care of their aunt, 
 Anna R. Simpson, widowed sister of the said testator. 
 
 (B) Three store houses, adjoining each other, in the same 
 city, known as Nos. 1132, 1134 and 1136 W. Main Street. The 
 assessed value of the three is $47,000, but the market value' is 
 probably $50,000 or more. They are all occupied by good ten- 
 ants, and produce a net annual rental of about $3,000. 
 
 (C) Four vacant lots in University Place, adjoining the home 
 place above mentioned. These lots were purchased by the said 
 testator shortly before his death, with a view of building there- 
 on, and selling the lots and buildings at a profit, but the prosecu- 
 tion of the enterprise was halted by his death. These lots are 
 described as lots Nos. 187, 188, 189, and 190, as designated on 
 a plat of University Place, recorded in the clerk's office of your 
 honor's court, in deed-book 46, pages 641-642. A certified copy 
 of the deed of conveyance from the testator's grantor, the Uni- 
 versity Place Company, is herewith filed as a part of this bill. 
 
290 Equity Pleading and Practice 
 
 marked "Exhibit 3" and prayed to be taken as a part of this bill. 
 
 All of the foregoing parcels of realty are held and owned by 
 said infants as tenants in common, and in fee simple estate. 
 
 So far as your complainant is informed and believes the fore- 
 going is a complete list of all the real estate owned by the infant 
 defendants — and as already stated, the whole thereof was de- 
 rived through the will of their father, Henry P. Aday, de- 
 ceased. 
 
 7. Your complainant further represents that "the four vacant 
 lots last above described, are not only not income-producing, but 
 they require a considerable annual outlay in the form of state 
 and city taxes. They are assessed for taxation at $3000 each, 
 and the annual tax-bill on these lots alone amounts to something 
 over $150 a year. 
 
 The said lots are well located, and are in a very desirable lo- 
 cality, and are likely to increase somewhat in value in the fu- 
 ture. But after giving the matter careful consideration, and 
 after conference with several real estate experts in whose judg- 
 ment and integrity he has confidence, your complainant is con- 
 firmed in his own judgment that the interests of his said wards 
 would be promoted by a sale of these lots, and a re-investment 
 of the proceeds in some safe income-producing security. It is 
 the purpose of this bill to .secure a decree from your honor's 
 court, authorizing and directing such a sale for reinvestment as 
 indicated. 
 
 8. Your complainant further shows that inasmuch as the in- 
 fant defendants acquired title to the said lots through the will 
 of their father, the said Henry Pi Aday, the same would descend 
 to the kindred on their father's side, should all of said infants 
 die before attaining their majority. The said Henry P. Aday 
 left surviving him two sisters, namely, Anna R. Simpson, widow, 
 and Susan R. Ramsay, now the wife of Robert A. Ramsay — 
 both residents of the City of Charlottesville — and three nephews, 
 children of a pre-deceased brother Thomas L. Aday, namely, 
 John M. Aday, Samuel M. Aday, and Rufus B. Aday, all adults, 
 all non-residents of this commonwealth, and all three residing 
 at Tulsa, Oklahoma. 
 
 In case the said infants should all die before attaining their 
 majority the following persons, therefore, would be their heirs, 
 towit: Anna R. Simpson, Susan R. Ramsay, John M. Aday, 
 Samuel M. Aday and Rufus B. Aday. 
 
Forms: Bill for Sals op Infants' Land 291 
 
 9. In addition to the kindred on the father's side, the next 
 of kin on the mother's side,' in case the said infants should all 
 die during their minority, would be two widowed sisters of the 
 mother, namely, Anne Hathaway Allen, of Charlottesville, and 
 Martha Blanton Willoughby, of Richmond, Va., who would be 
 co-distributees with the father's next of kin above mentioned. 
 
 It follows that in case the said infant defendants all died 
 before attaining their majority, the following would be their 
 distributees towit: Anna R. Simpson, Susan R. Ramsay, John 
 M. Aday, Samuel M. A'day, Rufus B. Aday, Anne Hathaway 
 Allen and Martha Blanton Willoughby. All of these are, there- 
 fore, hereinafterwards prayed to be made parties defendant to 
 this bill, as required by the statute in such cases made and pro- 
 vided. 
 
 10. The premises considered, your complainant prays that the 
 said infant wards, John Winston Aday, Thomas Quincey Aday, 
 and Lucy Blanton Aday, as well as the said Anna R. Simpson, 
 Susan R. Ramsay, John M. Aday, Samuel M. Aday, Rufus B. 
 Aday, Anne Hathaway Allen and Martha Blanton Willoughby 
 be made parties defendant to this bill, and may answer the 
 same; but answers under oath are waived as to all of the de- 
 fendants save as to such as by law are required to answer un- 
 der oath ; that a competent and discreet attorney at law be ap- 
 pointed guardian ad litem to represent the interests of said in- 
 fants in this proceeding, who, as well as the said John Winston 
 Aday, the infant defendant who is over fourteen years of age, 
 may be required to answer this bill on oath in proper person ; 
 that the four vacant lots above mentioned may be sold under or- 
 ders of the court, and the proceeds properly invested in other in- 
 come-producing securities; that a proper counsel's fee be al- 
 lowed to complainant's counsel in this cause; that all other nec- 
 essary and proper proceedings may be had and taken for 
 accomplishing the prayers of this bill ; and for such other relief, 
 both general and special, as to equity may seem meet and the 
 nature of the case may require. 
 
 And your complainant will ever pray, etc. 
 
 (signed) Allan W. Pbrkins, 
 
 Guardian. 
 Duke & DukE, 
 
 Por Complainant. 
 
292 Equity Pleading and Practice 
 
 Virginia, City of Charlottesville, Towit: 
 
 I, Louise F. Wheeler, a Notary Public in and for the state 
 and city aforesaid, do certify that Allan W. Perkins, whose 
 name as guardian is signed to the foregoing bill of complaint, 
 this day personally appeared before me in my said city, and 
 made oath that the matters and things stated in said bill as of 
 his own knowledge are true, and that those stated as on the in- 
 formation of others he believes to be true. 
 
 Given under my hand this the 21st day of January, 1922. 
 (Signed) Louise F. Wheeler, 
 
 Notary Public. 
 My commission expires March 16th, 1933. 
 
 2. ANSWER OF INFANTS BY GUARDIAN AD LITEM. 
 
 The joint answers of John W. Aday, Thomas Q. Aday and 
 Lucy B. Aday, infants under the age of twenty-one years, by 
 Albert S. Boiling, their guardian ad litem, appointed by the 
 court, as a competent and discreet attorney at law, to defend 
 their interests in this cause, to a bill of complaint filed against 
 these respondents and others, in the Corporation Court of the 
 City of Charlottesville, by Allan W. Perkins, guardian of these 
 respondents. 
 
 These respondents, by their said guardian ad litem, for an- 
 swer to said bill, say that they are infants of tender years, and 
 therefore incapable of knowing or defending their rights in 
 the premises. They therefore submit their interests to the pro- 
 tection of the court, and pray that no decree may be rendered 
 to their prejudice. 
 
 And having fully answered they pray to be hence dismissed. 
 
 I' Thomas Q. Aday, 
 J John W. Aday, 
 i. Lucy B. Aday. 
 (Signed) Albert S. Bolling, 
 
 Guardian ad Litem. 
 Virginia, City of Charlottesville, Towit: 
 
 L Louise F. Wheeler, a notary public in and for the state and 
 city aforesaid, do certify that Albert S. Boiling, whose name as 
 
Forms : Answer oi? Infant over Fourteen 293 
 
 guardian ad litem, is signed to the foregoing answer, this day 
 personally appeared before me, in my said city, and made oath 
 that to the best of his knowledge and belief, the matters and 
 things stated in the said answer are true. 
 
 Given under my hand, this the 25th day of January, 1922.^ 
 
 (Signed) Louise F. Wheeler, 
 
 Notary Public. 
 My commission expires March 16th, 1923. 
 3. ANSWER OF INFANT OVER 14 YEARS OF AGE. 
 
 The separate answer of John W. Aday, in proper person, to a 
 bill of complaint filed against him and others, in the Corpora- 
 tion Court of Charlottesville, by Allan W. Perkins, guardian 
 of this respondent. 
 
 For answer to said bill, this respondent adopts the answer 
 already filed in his behalf and that of his infant co-defendants 
 by Albert S. Boiling, his guardian ad litem, in which answer this 
 respondent, along with his infant co-defendants, has placed his 
 interests herein under the protection of the court, and prayed _ 
 that no decree be entered herein to his prejudice. 
 
 This respondent, who is now in his sixteenth year, as stated 
 in the bill, has heard the said bill read, and believes that he un- 
 derstands the allegations therein and the purpose thereof. He 
 believes the allegations of the bill to be true, and its purpose to 
 be to the interest of himself and his infant co-defendants. So 
 far as he lawfully may, therefore, he concurs in the prayers of 
 the bill. 
 
 And having fully answered he prays to be hence dismissed. 
 
 (Signed) John W. Aday. 
 Albert S. Bolling, 
 For Respondent. 
 
 [Append personal affidavit of the infant respondent.] 
 
 4. ANSWER OF GUARDIAN AD LITEM IN PROPER PERSON.!" 
 
 The answer, in proper person, of Albert S. Boiling guardian 
 ad litem of the infant defendants John W. Aday, Thomas Q. 
 Aday and Lucy B. Aday, duly appointed to defend their inter- 
 
 ° Oath probably not necessary here. 
 
 " The practice prevailing in some of the circuits of Virginia, of fil- 
 ing a merely perfunctory answer on the part of the guardian ad litem 
 in proper person, is clearly not within the spirit and intent of the 
 
294 Equity Pleading and Practice 
 
 ests in thi<^ suit, to a bill of complaint filed against such infant 
 defendants and others, in the Corporation Court of the City of 
 Charlottesville, by Allan W. Perkins, guardian of said infants. 
 
 This respondent, for answer to said bill, says that he has 
 carefully read the same, and is fully informed as to the pur- 
 poses thereof ; that, as a resident of the City of Charlottesville 
 for many years, respondent is familiar with all of the real prop- 
 erty mentioned in the bill, and also with the general circum- 
 stances of the infant defendants, which he believes to be truly 
 stated in the bill. He concurs in the opinion of the guardian, ex- 
 pressed m the bill, that the vacant lots therein described should 
 be sold, and the proceeds reinvested in some safe, income-pro- 
 ducing securities; and that such sale and reinvestment would 
 clearly promote the interests of the infant owners, and, so far 
 as he knows, will not violate the rights of any other persons. 
 
 And having fully answered he prays to be hence dismissed, 
 with his reasonable costs and charges. 
 
 (Signed) Albert S. Bolling, 
 
 Guardian ad Litem. 
 
 [Append personal afifidavit of guardian ad litem.] 
 
 5. DECREE OE SALE.^^ 
 
 Allan W. Perkins, Guardian of 
 
 John W. Aday, Thomas Q. Aday and 
 
 and Lucy B. Aday, infants Plaintiff. 
 
 V. 
 
 John W. Aday, Thomas Q. Aday and 
 
 Lucy B. Aday, infants ; Anna R. Simpson 
 
 Susan R. Ramsay, John M. Aday, 
 
 Samuel M. Aday, Rufus B. Aday, 
 
 Anne Hathaway Allen and Martha 
 
 Blanton Willoughby Defendants, 
 
 statute. The purpose of requiring the personal answer of the guardian 
 ad litem is, that the court may have the benefit of his personal knowl- 
 edge of the situation, and his personal opinion as to the (propriety of 
 the sale, or other disposition of the infant's property. If he have not 
 proper information, it is his duty to acquire it by investigation. 
 
 " Since the court here is exercising a limited statutory jurisdic- 
 tion, it is important that the decree expressly recite all essential ju- 
 risdictional steps, so as to foreclose any collateral questioning of 
 the procedure in the future. As to the conclusiveness of such recitals, 
 see the Text, ante, § 40. 
 
Forms: Decree f^or Sai.e of Infants' Lands 295 
 
 This cause came on this day to be heard on the bill of the 
 plaintifif, duly verified as required by law, and the exhibits filed 
 therewith; on the joint answers of John W. Aday, Samuel M. 
 Aday, and Lucy B. Aday, infant defendants, by Albert S. Boi- 
 ling, their guardian ad litem, a competent and discreet attorney- 
 at-law, duly appointed to defend their interests herein, and un- 
 der the oath of said guardian ad litem; on the separate answer, 
 in proper person, of the infant defendant John W. Aday, who is 
 over fourteen years of age, and under the oath of the said in- 
 fant defendant, in proper person; on the separate answer, in 
 proper person, of Albert S. Boiling guardian ad litem of said 
 infant defendants, under the oath of said guardian ad litem, 
 — to none of which answers does the plaintiff deem it neces- 
 sary to reply; on the bill taken for confessed as to the defend- 
 ants Anna R. Simpson, Susan R. Ramsay," Anne Hathaway 
 Allen and Martha Blanton Willoughby, upon whom process 
 appears to have been duly served, and they failing to appear 
 and answer or otherwise respond to said process ; on the bill 
 set for hearing as to the non-resident defendants John M. 
 Aday, Samuel M. Aday and Rufus B. Aday, against whom the 
 plaintiff appears to have proceeded by order of publication as 
 required by law, and they still failing to enter their appearance 
 herein; and on the testimony of witnesses taken in the presence 
 of the said, guardian ad litem, and was argued by counsel. 
 
 On consideration whereof, being satisfied from the testimony 
 of witnesses taken and certified as required by law, and inde- 
 pendently of any admissions in the several answers filed herein, 
 that a sale of the vacant lots of ground in the bill and proceed- 
 ings mentioned will promote the interests of the infant defend- 
 ants, owners thereof, and that the rights of no other person will 
 be violated thereby, the court doth adjudge, order and decree 
 that Allan W. Perkins and Albert S. Boiling, who are hereby ap- 
 pointed special commissioners for the purpose, do, after adver- 
 tising the time, terms and place of sale for at least three times 
 a week for two successive weeks in the Charlottesville Progress, 
 and in such other manner as they may deem best calculated to 
 give due publicity to the said sale, expose the said four lots of 
 ground, in the bill and proceedings mentioned, — described as 
 
296 Equity Pleading and Practice 
 
 lots Nos. 187, 188, 189 and 190, as designated on the plat of 
 University Place — for sale by way of public auction on the prem- 
 ises, on the following terms towit: One fourth of the purchase 
 money to be paid in cash, and the residue in eqiual installments, 
 maturing six, twelve and eighteen months after date, respectively, 
 with interest from date, the deferred installments represented 
 by negotiable notes of the purchaser, or purchasers, payable to 
 the order of the court in this cause, and containing waiver of 
 homestead exemption. But the said commissioners shall not 
 proceed to the execution of this decree until they (or that one 
 who shall serve hereunder) shall have executed bond before 
 the clerk of this court, in the penalty of $10,000, with good se- 
 curity to be approved by the said clerk, conditioned for the 
 faithful performance of their duties hereunder. 
 
 And said commissioners will report to the next term of this 
 court how they have executed this decree. 
 
 [The further proceedings differ in nowise from proceedings 
 in other chancery suits.] 
 
 III. 
 
 Order of Reference in a Creditors' Suit. 
 
 [Title of cause.] 
 
 On consideration whereof the court doth ad- 
 judge, order and decree that this cause be, and the same is 
 hereby, referred to one of the masters (or commissioners) of 
 this court, with directions to take, state and settle an account 
 showing : 
 
 1. What estate, real or personal, is owned by the defendant, 
 the Charlottesville Canning Company, (Inc.), arid subject 
 to the claims of its creditors. 
 
 2. All delinquent taxes on the real estate belonging to the 
 defendant, the Charlottesville Canning Company, (Inc.), 
 with the interest thereon, as required by law. 
 
 3. What claims asserted, or to be asserted, in this cause, con- 
 stitute liens on the assets of the said company, with their 
 several amounts and their respective priorities. 
 
Forms: Master's Deed 297 
 
 4. All other valid claims against said company, not reduced 
 to judgment, or otherwise charged as liens on such assets. 
 
 5. Any other matters deemed pertinent by said master, or re- 
 quired to be stated by any party in interest. 
 
 And the said master shall give notice of the time and pl^ce for 
 the taking of such account, by a publication thereof once a week 
 for four successive weeks in the Charlottesville Progress, which 
 publication shall be ecjuivalent to personal notice to all parties in 
 interest. 
 
 And said master will report to a future term of this court 
 how he has executed this decree. 
 
 IV. 
 The Master's Deed. 
 
 THIS DEED, made this the 21st day of January, 1922, be- 
 tween Charles W. Allen, special commissioner as hereinafter- 
 ward shown, of the one part, and Patrick C. Callavv^ay, of the 
 other part. 
 
 WHEREAS, in a certain suit in chancery depending in the 
 Circuit Court of the County of Albemarle, under the short style 
 of Amiss et al. v. The Charlottesville Canning Co., (Inc.) et al., 
 by a decretal order of the said court, entered at its April term, 
 1921, the party of the first part was authorized and directed to 
 convey, with special warranty of title, to the party of the second 
 part, the real property hereinafterwards described — all of which 
 will more fully and at large appear by reference to the proceed- 
 ings in the court and cause aforesaid ; and 
 
 WHEREAS, in pursuance of the statute in such cases made 
 and provided,i2 the names of the parties on whose behalf this 
 conveyance is made, are here set out, to-wit, 
 
 (A, B, C, D, E, etc.) 
 NOW, THEREFORE, in consideration of the premises, and 
 in execution of the authority and directions of the decretal or- 
 der aforesaid, the party of the first part, special commissioner 
 as aforesaid, doth hereby grant and convey, with special war- 
 ranty of title, unto the party of the second part, the following 
 
 " For this awkward and apparently useless clause, see Va. Acts 
 1918, p. -)44, and comments thereon, ante, § 310. 
 
298 Equity Pleading and Practice 
 
 described real property, situated in Albemarle County, in the 
 State of Virginia, to-wit: 
 
 [Here insert description.] 
 
 This is the same property [or a portion of the same property] 
 which was conveyed to William R. Blackshear by Henry T. 
 Lyne and wife, by their joint deed, bearing date on the 17th day 
 of May, 1906, and recorded in the clerk's office of the Circuit 
 Court of said county, in deed book 178, on pages 56-58, and to 
 which deed reference is here made for a more accurate descrip- 
 tion of the property intended to be conveyed hereby. 
 
 Witness the following signature and seal, on the day and year 
 first aforesaid. 
 
 (Signed) Charles W. Allen, [Seal]. 
 
 Special Commissioner. 
 
 [To be acknowledged and certified as in case of other deeds 
 of conveyance.] 
 
 V 
 
 Other Forms in Equity. 
 
 Subjoined are a few other familiar forms used in the equity 
 practice, with which the young practitioner should cultivate a 
 close and intimate acquaintance. 
 
 1. affidavits. 
 ( 1 ) Virginia Form.^^ 
 Virginia, 
 
 County of Albemarle, to-wit: 
 1, Howard Winston, a Notary Public (or a justice of the 
 peace, or a commissioner in chancery) for the State ^nd county 
 aforesaid do certify that Peter Quinby whose name is signed to 
 the foregoing answer, this day made oath before me, in my said 
 county, that the matters and things therein stated as of his own 
 knowledge are true, and those stated as on the information of 
 others he believes to be true. 
 
 " This form of affidavit, practically universal in Virginia, differs 
 from that prevailing generally in other states in the following par- 
 ticulars: (1) ,It is vihoWy the language of the notary; (3) It is 'not 
 signed by the affiant; and (3) the notarial seal is not affixed. 
 
 Affidavits taken by a Virginia notary, for use in other states should, 
 of course, conform to the general and not to the local practice. 
 
Forms: Affidavit — Injunction Order 299 
 
 Given under my hand this the 17th day of January, 1922. 
 
 (Signed) Howard Winston, 
 
 Notary Public. 
 My commission expires March 3, 1933. 
 
 (2) 77zr more usual form of Affidavit in other States. 
 State of Kentucky, 
 
 County of Jefferson, to-vvit: 
 Peter Quinby being duly sworn [on the Holy Evangely of 
 Almighty God] deposes and says that the matters and things 
 in the foregoing answer, stated as of his own knowledge, are 
 true, and those stated as on, information and belief he believes 
 to be true. 
 
 (Signed) PEter Quinby. 
 Sworn to and subscribed before me, by the affiant, Peter 
 Quinby, who is well known to me, this the 17th day of January, 
 Anno Domini, 1922. 
 
 (Signed) Adam Beasi^ey, 
 (official seal) Notary Public. 
 
 My commission expires March 3, 1935. 
 2. preliminary injunction order. 
 
 On the motion of the plaintiff, an injunction is awarded 
 against the defendant, the Chesapeake and Ohio Railway Com- 
 pany, restraining and prohibiting the said defendant, its agents 
 and servants, from entering, or in anywise trespassing upon or 
 injuring, the lot of ground in the bill mentioned, until the fur- 
 ther order of this court. 
 
 But the plaintiff shall not have the benefit of this order un- 
 til he, or some one for him, shall have entered into bond, before 
 the clerk of this court, with good security to be approved by 
 said clerk, in the penalty of five hundred dollars ($500), con- 
 ditioned to answer all costs and damages which may be awarded' 
 against him in case this injunction shall be dissolved. 
 
 (Signed) John W. Fishburne, Judge. 
 
 To the Clerk of the Circuit Court of Albemarle county. 
 
 3. RULE to show cause. 
 (1) On petition filed. 
 On the motion of Hiram Q. Abernathy, he hath leave to file 
 
300 Equity Pleading and Practice 
 
 his petition in this cause, which is accordingly done. And on 
 Hke motion a rule is awarded against Aaron Applegarth and 
 Amelia Applegarth, his wife, defendants named in the said pe- 
 tition, to appear here on the first day of the April term of this 
 court next, to show cause if any they have or can show why 
 the prayer of the said petition shall not be granted. 
 
 (2) On Contempt Charge. 
 It being represented to the court by affidavits filed by t!.e 
 plaintiff in this cause that the defendant, the Chesapeake & Ohio 
 Railway Company, and its chief engineer Robert C. Calloway, 
 are in contempt of this court in having violated the injunction 
 heretofore awarded the plaintiff in this cause, enjoining and 
 restraining the said defendant and its agents and servants from 
 entering or otherwise trespassing upon or injuring the property 
 of the plaintiff in the bill and proceedings mentioned, on the 
 motion of the plaintiff a rule is awarded against the said de- 
 fendant, the Chesapeake and Ohio Railway Company, and the 
 said Robert C. Calloway to appear here tomorrow morning at 
 ten o'clock to show cause if any they have or can show why 
 they shall not be attached or otherwise proceeded against ac- 
 cording to law, for their said contempt. 
 
APPENDIX li 
 
 The Federal Equity Rules of 1912 
 
 RULE 1. 
 
 DISTRICT COURT ALWAYS OPEN FOR CERTAIN PUR- 
 POSES—ORDERS AT CHAMBERS. 
 
 The district courts, as courts of equity, shall be deemed always 
 open for the purpose of filing any pleading, of issuing and returning 
 mesne and final process, and pf making and directing all interloc- 
 utory motions, orders, rules and other proceedings preparatory to 
 the hearing, upon their merits, of all causes pending therein. 
 
 Any district judge may, upon reasonable notice to the parties, 
 make, direct, and award, at chambers 'or in the clerk's office, and 
 in vacation as well as in term, all such process, commissions, orders, 
 rules and other proceedings, whenever the same are not grantable 
 of course, according to the rules and practice of the court. 
 
 2. 
 CLERK'S OFFICE ALWAYS OPEN, EXCEPT, ETC. 
 
 The clerk's office shall be open during business hours on all days, 
 except Sundays and legal holidays, and the clerk shall be in attend- 
 ance for the purpose of receiving and disposing of all motions, rules, 
 orders and other proceedings which are grantable of course. 
 
 3. 
 BOOKS KEPT BY CLERK AND ENTRIES THEREIN. 
 
 The clerk shall keep a book known as "Equity Docket," in which 
 he shall enter each suit, with a file number corresponding to the 
 folio in the book. AH papers and orders filed iwith the clerk in 
 the suit, all process issued and returns made thereon, and all ap- 
 pearances shall be Jnoted briefly and chronologically in Ithis book 
 on the folio assigned to the suit and shall be marked with its file 
 number. ' 
 
 The clerk shall also keep a book entitled "Order Book," in which 
 shall be entered at length, in the order of their 'making, all orders 
 
 301 
 
302 Equity Pleading and Practice 
 
 made or passed by him as of course and also all orders made or 
 passed by the judge in chambers. 
 
 He shall also |keep an "Equity Journal," in which shall be en- 
 tered all orders, decrees land proceedings of the court in equity 
 causes in term time. 
 
 Separate and suitable indices of the Equity Docket, Order Book 
 and Equity Journal shall be kept by the clerk under the direction 
 of the court. 
 
 4. 
 NOTICE OF ORDERS. 
 
 Neither the noting of an order in the Equity Docket nor its entry 
 in the Order Book shall of itself be deemed notice to the parties 
 or their solicitors; and when an order is made without prior notice 
 to, and in the absence of, a party, the clerk, unless otherwise di- 
 rected by the court or judge, shall forthwith send a copy thereof, 
 by mail, to such party or his solicitor and a note of such mailing 
 shall be made in the Equity Docket, which shall be taken as suffi- 
 cient proof of due notice of the order. 
 
 5. 
 
 MOTIONS GRANTABLE OF COURSE BY CLERK. 
 
 All motions and applications in the clerk's office for the issuing 
 of mesne process or final process to enforce and execute decrees; 
 for taking bills pro confesso; and for bther proceedings in the clerk's 
 office which do not require any allowance or order of the court or 
 of a judge, shall be deemed motions and applications grantable of 
 course by the clerk; but the same may be suspended, or altered, or 
 rescinded by the judge upon special cause shown. 
 
 6. 
 
 MOTION DAY. 
 
 Each district court shall establish regular times and places, not 
 less than once each month, when motions requiring notice and hear- 
 ing may be made and disposed of; but the judge may at any time 
 and place, and on such notice, if any, as he may consider reasonable, 
 make and direct all interlocutory orders, rulings and proceedings for 
 the advancement, conduct and hearing of causes. If the public in- 
 terest permits, the senior circuit judge of the circuit may dispense 
 with the motion day during not to exceed two months in the year 
 in any district. 
 
 7. 
 
 PROCESS, MESNE AND FINAL. 
 
 The process of subpcena shall constitute the proper mesne proc- 
 
Fedekal Equity Rules 303 
 
 ess in all suits in equity, in the first instance, to require the de- 
 fendant to appear and answer the bill; and, unless otherwise pro- 
 vided in these rules pr specially ordered by the court, a writ of 
 attachment, and, if the defendant cannot be found, a writ of seques- 
 tration, 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. 
 
 8. 
 ENFORCEMENT OF FINAL DECREES. 
 
 Final process to execute any decree may, if the decree be solely 
 for the payment of money, be by a writ of execution, in the form 
 used in the district court in suits at common law in actions of as- 
 sumpsit. 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, prescribe the time within which the act shall be done, of 
 which the defendant Shall be bound, without further service, to take 
 notice; 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 a judge thereof, 
 upon motion and affidavit, enlarging the time for the performance 
 thereof. If the delinquent party cannot Ibe found a writ of seques- 
 tration shall issue against his estate, upon the return of non est 
 inventus, to- compel obedience to the decree. If a mandatory order, 
 injunction or decree for the specific performance of any act or con- 
 tract be not complied with, the court or a judge, besides, or instead 
 of, proceedings against the disobedient party for a contempt or by 
 sequestration, may by order direct that the act required to be done, 
 so far as practicable, by some other person appointed by the court 
 or judge, at the cost of the disobedient party, and the act, when so 
 done, shall have like effect as if done by him. 
 
 9. 
 
 WRIT OF ASSISTANCE. 
 
 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 prder, the party prosecuting the same shall be entitled to a writ 
 of assistance from the clerk of the court. 
 
304 Equity Pi,eading and Practice 
 
 10. 
 
 DECREE FOR DBFICIBNCY IN FORECLOSURES, ETC. 
 
 In suits for the foreclosure of mortgages, or the enforcement of 
 other liens, a decree may be rendered for any balance that may be 
 found due to the plaintiff over and above the proceeds of the sale 
 or sales, and execution may issue for the collection of the same, as 
 is provided in rule 8 when the decree is solely for the payment of 
 money. 
 
 11. 
 
 PROCESS IN BEHALF OF AND AGAINST PERSONS 
 NOT PARTIES. 
 
 Every person, not being a party in any cause, who has obtained 
 an order, or in whose favor an order shall have been made, may 
 enforce obedience to such order by the same process as if he were 
 a party; and every person, not being a party, against "Whom obe- 
 dience to any order of the court may be enforced, shall be liable 
 to the same process for enforcing obedience to such orders as if 
 he were a party. 
 
 12. 
 ISSUE OF SUBPCENA— TIME FOR ANSWER. 
 
 Whenever a bill is filed, and mot before, the clerk shall issue the 
 process of subpoena thereon, as of course, upon the application of 
 the plaintiff, which shall contain the names of the parties and be 
 returnable into the clerk's office twenty days from the issuing there- 
 of. At the bottom of the jsubpoena shall be placed a memorandum, 
 that the defendant is required to file his answer or other defense in 
 the clerk's office on or before the twentieth day after service, exclud- 
 ing the day thereof; otherwise the bill may be taken pro confesso. 
 Where there are more than one ,defendant, a writ 'of subpoena may, 
 at the election of the plaintiff, be sued out separately for each de- 
 fendant, or a joint subpoena against all the defendants. 
 
 13. 
 
 MANNER OF SERVING SUBiFCENA. 
 
 The service of all subpoenas shall be by delivering a copy thereof 
 to the defendant personally, or by leaving a copy thereof at the 
 dwelling-house or usual place of abode of each defendant, with some 
 adult person who is a member of or resident in the family. 
 
 14. 
 
 ALIAS SUBPCENA. 
 
 ■ Whenever any subpoena shall be returned not executed as to any 
 
pEDEEAr, Equity Rules 305 
 
 defendant, the plaintiflf shall be entitled to other subpoenas against 
 such defendant, until due service is made. 
 
 IS. 
 
 PROCESS, BY WHOM SERVED. 
 
 The service of all process, mesne and final, shall be by the mar- 
 shal of the district, or his deputy, or by some other person specially 
 appointed by the icourt or judge for that purpose, and not otherwise. 
 In the latter case, the person serving the process shall make affi- 
 davit thereof. i 
 
 16. 
 
 DEFENDANT TO ANSWER— DEFAULT— DECREE PRO CON- 
 FESS©. 
 
 It shall be the duty of the defendant, unless the time shall be en- 
 larged, for cause shown, by a judge of the court, to file his answer 
 or other defense to the bill in the clerk's office within the time named 
 in the subpoena as required by rule 13. In default thereof the plain- 
 tiff may, at his election, take an order as of course that the bill be 
 taken pro confesso; and thereupon the cause shall be proceeded in 
 ex parte. 
 
 17. 
 
 DECREE PRO CONFESSO TO BE FOLLOWED BY FINAL 
 DECREE— SETTING ASIDE DEFAULT. 
 
 When the bill is taken \pro confesso [the court may proceed to a 
 final decree at any time after the expiration of thirty days after the 
 entry of the 'prder pro >confesso, and such decree shall be deemed 
 absolute, unless the court shall, at the same term, set aside the same, 
 or enlarge the time for filing the answer, upon cause shown upon 
 motion and affidavit. No such Imotion shall be granted, unless upon 
 the payment of the costs of the plaintiff up to that time, or such 
 part thereof as the court shall 'deem reasonable, and unless the de- 
 fendant 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. 
 
 13. 
 
 PLEADING— TECHNICAL FORMS ABROGATED. 
 
 Unless otherwise prescribed by statute or these rules, the tech- 
 nical forms of 'pleadings in equity are abolished. 
 
 19. 
 
 AMENDMENTS GENERALLY. 
 
 The court may at any time, in furtherance of justice, upon such 
 
306 Equity Pi^eading and Practice 
 
 terms as may be just, permit any process, proceeding, pleading or 
 record to be amended, or material supplemental matter to be set 
 forth in an amended or supplemental pleading. The court, at every 
 stage of the proceeding, must disregard any error or defect in the 
 proceeding which does not affect the substantial rights of the parties. 
 
 20. 
 
 FURTHER AND PARTICULAR STATEMENT IN PLEADINGS 
 MAY BE REQUIRED. 
 
 A further and better statement of the nature of the claim, or de- 
 fense, or further and better particulars of any matter stated in any 
 pleading, may in any case be ordered; upon such terms, as to costs 
 and otherwise, as may Ibe just. ' 
 
 21. 
 
 SCANDAL AND IMPERTINENCE. 
 
 The right to except to bills, answers, and 'other proceedings for 
 scandal or impertinence shall not obtain, but the court may, upon 
 motion or ,its own initiative, order any redundant, impertinent or 
 scandalous matter stricken out, upon such terms as the court shall 
 think fit. 
 
 22. 
 
 ACTION AT LAW ERRONEOUSLY BEGUN AS SUIT IN 
 EQUITY— TRANSFER. 
 
 If at any time it appear that a suit commenced in equity should 
 have been brought as an action on ithe law 'side of the court, it shall, 
 be forthwith transferred to the law side and be there proceeded with, 
 with only such alteration in the pleadings as shall be essential. 
 
 23. 
 
 MATTERS ORDINARILY DETERMINABLE AT LAW, WHEN 
 ARISING IN SUIT IN EQUITY TO BE DISPOSED OF 
 THEREIN. 
 
 If in a suit in equity a matter ordinarily determinable at law arises, 
 such matter shall be determined in that suit according to the prin- 
 ciples applicable, without sending the case or question to the law 
 side of the court. 
 
 24. 
 
 SIGNATURE OF COUNSEL. 
 
 Every bill or other pleading shall be signed individually by one 
 or more solicitors of record, and such signatures shall be considered 
 as a certificate by each solicitor that he has read the pleading so 
 
Federal Equity Rules 307 
 
 signed by him; that upon the instructions laid before him regard- 
 ing the case there is good ground for the same; that no scandalous 
 matter is inserted in the pleading; and that it ;is not interposed for 
 delay. 
 
 25. 
 
 1 BILL OF COMPLAINT— CONTENTS. 
 
 Hereafter it shall be sufficient that a bill in equity shall contain, 
 in addition to the usual caption: 
 
 First, the full name, when known, of each plaintiff and defend- 
 ant, and the citizenship and 'residence of each party. If any party 
 be under any disability that fact shall be stated. ; 
 
 Second, a short and Iplain statement 'of the grounds upon which 
 the court's jurisdiction depends. 
 
 Third, a short and simple statement of the ultimate facts upon 
 which the plaintiff asks relief, omitting any mere statement of evi- 
 dence. 1 
 
 Fourth, if there are persons other than those named as defend- 
 ants who appear to be proper parties, the bill should state why they 
 are not made parties — as that they are not within the ijurisdiction of 
 the court, or cannot be made parties without ousting the jurisdic- 
 tion. I 
 
 Fifth, a statement of 'and prayer for any special relief pending the 
 suit or on final hearing, which may be stated and sought in alter- 
 native forms. If special relief pending 'the suit be desired the bill 
 should be verified by the oath of the plaintiff, or someone having 
 knowledge of the facts upon 'which such relief is asked. 
 
 26. 
 JOINDER OF CAUSES OF ACTION. 
 
 The plaintiff may join in one bill as many causes of action, cog- 
 nizable in equity, as he may have against the defendant. ,But when 
 there are more than one plaintiff, the causes of action joined must 
 be joint, and if there be more than one defendant the liability must 
 be one asserted against all of the material defendants, or sufficient 
 grounds must 'appear for uniting the causes of action in order to 
 promote the convenient administration of justice. If it appear that 
 any such causes of action cannot be conveniently disposed of to- 
 gether, the court may order separate trials. 
 
 27. 
 STOCKHOLDER'S BILL. 
 
 Every bill brought by one or more stockholders in a corporation 
 against the Corporation and other parties, founded on rights which 
 
308 Equity Pi,eading and Practice 
 
 may properly be asserted by the corporation, must be verified by 
 oath, and must contain an allegation that the plaintiff was a share- 
 holder at the time of the transaction of which he complains, or that 
 his share had devolved on him since by operation of law, and that 
 the suit is not a collusive one to confer on a court of the United 
 States jurisdiction of a case of which it .would not otherwise have 
 cognizance. It must also set forth with particularity the efforts of 
 the plaintiff jto secure such action as he desires on the part of the 
 managing directors or trustees, and, if necessary, of the sharehold- 
 ers, and the causes of his failure to obtain such action, or the rea- 
 sons for not making such effort. 
 
 33. 
 
 AMENDMENT OF BILL AS OF COURSE. 
 
 The plaintiff may, as of course, amend his bill before the defend- 
 ant has responded thereto, but if such amendment ,be filed after any 
 copy has issued from the clerk's office, the plaintiff at his own cost 
 shall furnish to the solicitor of record of each opposing party a copy 
 of the bill as amended, unless otherwise ordered by the court or 
 judge. ' 
 
 After pleading filed by any defendant, plaintiff may amend only 
 by consent of the defendant or leave of the court or judge. 
 
 29. 
 
 DEFENSES— HOW PRESENTED. 
 
 Demurrers and pleas are abolished. Every defense in point of 
 law arising upon the face of the bill, whether for misjoinder, non- 
 joinder, or insufficiency of fact to constitute a valid cause of action 
 in equity, which might heretofore have been made by demurrer or 
 plea, shall be made by motion to dismiss or in the answer; and 
 every such point of Jaw going to the whole or a material part of 
 the cause jor causes |of action stated in the bill may be called up 
 and disposed of before final hearing at the discretion of the court. 
 Every defense heretofore presentable by plea in - bar or' abatement 
 shall be made in the answer and may be separately heard and dis- 
 posed pi before the trial of the principal case in the discretion of 
 the court. If the defendant move to dismiss the bill or any part 
 thereof, the motion may be set down Ifor hearing ;by either party 
 upon five days' notice, and, if it be denied, answer shall be filed 
 within five days (thereafter or a decree /to confesso entered. 
 
 30. 
 
 ANSWER— CONTENTS— COUNTER-CLAIM. 
 
 The defendant in his answer shall in short and simple terms set 
 
Federal Equity Rules 309 
 
 out his defense to each claim asserted by ithe bill, omitting any mere 
 statement of evidence and avoiding any general denial of the aver- 
 ments of the bill, but specifically admitting or denying or explain- 
 ing the facts upon which the plaintifif relies, unless the defendant 
 is without knowledge, in which case he shall so state, such state- 
 ment operating as a denial. Averments other than of value or 
 amount of damage, if not denied, shall be deemed confessed, except 
 as against an infant, lunatic or other person non compos and not 
 under guardianship, but the answer may be amended, by leave of 
 the court or judge, upon reasonable notice, so as to put any aver- 
 ment in issue, when justice requires it. [The answer may state as 
 many defenses, in the alternative, regardless of consistency, as the 
 defendant deems essential to his defense. 
 
 The answer must state in short and simple form any counter-claim 
 arising out of the (transaction which is the subject-matter of the suit, 
 and may, without cross-bill, set out any set-off or counter-claim 
 against the plaintiff which might be the .subject of an independent 
 suit in equity against him, and such set-off or counter-claim, so set 
 up, shall have the same effect as a cross-suit, so as to enable the 
 court to pronounce a final judgment in the same suit both on the 
 original and cross-claims. 
 
 31. 
 
 REPLY— WHEN REQUIRED— WHEN CAUSE AT ISSUE. 
 
 Unless the answer assert a set-off or counter-claim, no reply shall 
 be required withoi^t special order of the court or judge, but the 
 cause shall be deemed at issue upon .'the filing |of the answer, and 
 any new or affirmative matte" therein shall be deemed to be denied 
 by the plaintiff. If the answer include a set-off or counter-claim, the 
 party against whom it is asserted shall reply within ten days after 
 the filing of the answer, unless a longer time be allowed by the court 
 or judge. If the counter-claim is one which affects the rights of 
 other defendants they or 'their solicitors shall be served with a copy 
 of the same within ten days from the filing thereof, and ten days 
 shall be accorded to such defendants for filing a reply. In default oi 
 a reply, a decree '^ro confesso on the counter-claim may be entered 
 as in default of an answer to the bill. 
 
 32. 
 
 ANSWER TO AMENDED BILL. 
 
 In every case where an amendment to the bill shall jbe made after 
 answer- filed, the defendant shall put in a »ew or supplemental an- 
 swer within ten Hays after that on which the amendment or amended 
 bill is filed, unless the time is enlarged or it is otherwise ordered by 
 
310 Equity Pleading and Practice 
 
 a judge of the court; and upon a default, the like proceedings may 
 be had as upon an omission to put in an answer. j 
 
 33. 
 TESTING SUFFICIENCY OF DEFENSE. 
 
 Exceptions for insufficiency of an answer are abolished. But if 
 an answer set up an affirmative defense, set-off or counter-claim, 
 the plaintiff ^may, upon five days' notice, or such further time as 
 the court may allow test the sufficiency of the same by motion to 
 strike out. If found insufficient but amendable, the court may allow 
 an amendment upon terms, or strike out the matter. 
 
 34. 
 SUPPLEMENTAL PLEADING. 
 
 Upon application of either Jjarty the court or judge may, upon 
 reasonable notice and such terms as are just, permit him to iile and 
 serve a supplemental pleading, alleging material facts occurring after 
 his former pleading, or of which he was ignorant when it was made, 
 including the judgment or (decree of a competent court rendered 
 after the commencement of the suit, determining the matters in con- 
 troversy or a part thereof. 1 
 
 35. 
 
 BILLS OF iREVIVOR AND SUPPLElVlENTAL BILLS— FORM. 
 
 It shall not be necessary in any bill of revivor or supplemental 
 bill to set forth any of the statements in the original suit, unless 
 the ispecial circumstances of the case may require it. 
 
 36. 
 OFFICERS BEFORE WHOM PLEADINGS VERIFIED. 
 
 Every pleading which is required to be sworn to by statute, or 
 these rules, may be verified before any justice or judge of any court 
 of the United States, or of any State or Territory, or of the District 
 of Columbia, or any clerk of any court jof the United States, or of 
 any Territory, or of the District of Columbia, or any notary public. 
 
 37. 
 PARTIES GENERALLY— INTERVENTION. 
 
 Every action shall be prosecuted in the name of the real party 
 in interest, but an executor, administrator, guardian, trustee of an 
 express trust, a party with whom or in whose name a contract has 
 been made for the benefit of another, or a party expressly author- 
 
Federal Equity Rules 311 
 
 ized by statute, may sue in his own name without joining with him 
 the party for whose benefit the action is brought. All persons hav- 
 ing an interest in the subject of the action and in obtaining the 
 relief demanded may join as plaintiffs, and any person may be made 
 a defendant who has or claims an interest adverse to the plaintiff. 
 Any person may at any time be made a party if his presence is 
 necessary or proper to a complete determination of thp cause. Per- 
 sons having a united interest must be joined on the same side as 
 plaintiffs or defendants, but when anyone refuses to join, he may 
 for such reason be made a defendant. 
 
 Anyone claiming an interest in the litigation, may at any time be per- 
 mitted to assert his right by intervention, but the intervention 
 shall be in subordination to, and in recognition of, the propriety of 
 the main proceeding. 
 
 38. 
 
 REPRESENTATIVES OF CLASS. 
 
 When the question is one of common or general interest to many 
 persons constituting a class so numerous as to make it impractica- 
 able to bring them all before the court, one or more may sue or de- 
 fend for the whole. 
 
 39. 
 
 ABSENCE OF PERSONS WHO WOULD BE PROPER 
 PARTIES. 
 
 In all cases where it shall appear to the court that persons, who 
 might otherwise be deemed proper parties to the suit, cannot be 
 made parties by reason of their being out of the jurisdiction of the 
 court, or incapable otherwise of being made parties, or because their 
 joinder would oust the jurisdiction of the court as to the parties 
 before the court, the court may, in its discretion, proceed in the 
 cause without making such persons parties; and in such cases the 
 decree shall be without prejudice to the rights of the absent parties. 
 
 40. -^ 
 
 NOMINAL PARTIES. 
 
 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 and answer 
 the bill, unless the plaintiff specially requires him to do so by the 
 prayer; but he may appear and answer at his option; and if he does 
 not appear and answer he shall be bound by all the proceedings in 
 the cause. If the plaintiff ishall require him to appear 'and answer 
 
312 Equity Pi^eading and Practice 
 
 he shall be entitled to the costs of all the proceedings against him, 
 unless the court shall otherwise direct. 
 
 41. 
 
 SUIT TO EXECUTE TRUSTS OF WILL— HEIR AS PARTY. 
 
 In suits to execute the trusts of a will, it shall not be necessary 
 to make the heir at law a party; 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. 
 
 43. 
 JOINT |AND SEVERAL DEMANDS. 
 
 In all cases in which the plaintiff has a joint and several 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 the persons liable thereto; but the plaintiflf may 
 proceed against one or more of the persons severally liable. 
 
 43. 
 DEFECT OF PARTIES^RESISTING OBJECTION. 
 
 Where the defendant shall by his answer suggest that the bill of 
 complaint is defective for want of parties, the plaintiff may, within 
 fourteen days after answer filed, set down the cause for argument 
 as a motion upon that objection only; and where the plaintiflf 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- 
 swer, he shall not at the hearing of the cause, if the defendant's 
 objection shall then be allowed, be entitled as of course to an order 
 to amend his bill by adding parties; but the court shall be at liberty 
 to dismiss the bill, or to allow an amendment on such terms as 
 justice may require. 
 
 44. 
 DEFECT OF PARTIES— TARDY OBJECTION. 
 
 If a defendant shall, at the hearing of a cause, object that a suit 
 is defective for want of parties, not having by motion or answer 
 taken the objection and therein specified by name or description the 
 parties to whom the objection applies, the court shall be at liberty 
 to make a decree saving the rights of the absent parties. 
 
 4S. 
 DEATH OF PARTY— REVIVOR. 
 
 In the event of the death of either party the court may, in a 
 
Federal Equity Rules 313 
 
 proper case, upon motion, order the suit to be revived by the substi- 
 tution of the proper parties. If the successors or representatives of 
 the deceased party fail to make such application vvrithin a reasonable 
 time, then any other party may, on motion, apply for such relief, 
 and the court, upon any such motion, may make the necessary or- 
 ders for notice to the parties to be substituted and for the filing of 
 such pleadings or amendments as may be necessary. 
 
 48. 
 
 TRIAL— TESTIMONY USUALLY TAKEN IN OPEN COURTt- 
 PRULINGS ON OBJECTIONS TO EVIDENCE. 
 
 In all trials in equity the testimony of vvfitnesses shall be taken 
 orally in open court, except as otherwise provided by statute or 
 these rules. The court shall pass upon the admissibility of all evi- 
 dence offered as in actions at law. When evidence is offered and 
 excluded, and the party against whom the ruling is made excepts 
 thereto at the time, the court shall take and report so much thereof, 
 or make such a statement respecting it, as will clearly show the 
 character of the evidence, the form in which it was offered, the ob- 
 jection made, the ruling, and the exception. If the appellate court 
 shall be of opinion that the evidence should have been admitted, it 
 shall not reverse the decree unless it be clearly of opinion that ma- 
 terial Jjrejudice will result from an affirmance, in which event it shall 
 direct such further steps as justice may require. 
 
 47. 
 
 DEPOSITIONS— TO BE TAKEN IN EXCEPTIONAL 
 INSTANCES. 
 
 The court, upon application of either party, when allowed by stat- 
 ute, or for good and exceptional cause for departing from the gen- 
 eral rule, to be shown by affidavit, may permit the deposition of 
 named witnesses, to be used before the court or upon a reference 
 to a master, to be taken before an examiner or other named officer, 
 upon the notice and terms specified in the order. All depositions 
 taken under a statute, or under any such order of the court, shall 
 be taken and filed as follows, unless otherwise ordered by the court 
 or judge for good cause shown: Those of the plaintiff within sixty 
 days from the time the cause is at issue; those of the defendant 
 within thirty days from the expiration of the time for the filing of 
 plaintiff's depositions; and rebutting depositions by either party 
 within twenty days after the time for taking original depositions 
 expires. 
 
314 Equity Pleading and Practice 
 
 48. 
 
 TESTIMONY OiF EXPERT WITNESSES IN PATENT 
 AND TRADE-MARK CASES. 
 
 In a lease involving the validity or scope of a patent or trademark, 
 the District Court may, upon petition, order that the testimony in 
 chief of expert witnesses, whose testimony is directed to matters of 
 opinion, be set forth in affidavits and filed as follows: Those of the 
 plaintiff within forty days after the cause is at issue; those of the 
 defendant within twenty days after plaintiff's time has expired; and 
 rebutting affidavits within fifteen days after the expiration of the 
 time for filing original affidavits. 'Should the opposite party desire 
 the production of any affiant for cross-examination, the court 'or 
 judge shall, on motion, direct that said cross-examination and any 
 re-examination take place before the court upon 'the trial, and unless 
 the affiant is produced and submits to cross-examination m com- 
 pliance with such direction, his affidavit shall not be used as evi- 
 dence in the cause. 
 
 49. 
 
 EVIDENCE TAKEN BEFORE (EXAMINERS, ETC. 
 
 All evidence offered before an examiner or like officer, together 
 with any objections, shall be saved and returned into the court. 
 Depositions, whether upon oral examination before an examiner or 
 like officer or otherwise, shall be taken upon questions and answers 
 reduced to writing, or in the form of narrative, and the 'witness shall 
 be subject to qross and re-examination. 
 
 50. 
 
 STENOGRAPHER— APIPOINTMENT— FEES. 
 
 When deemed necessary by the court or officer taking testimony, 
 a stenographer may be appointed who shall take down testimony in 
 shorthand, and, if required, transcribe the same. His fee shall be 
 fixed by, the court and taxed ultimately as costs. The expense of 
 taking a deposition, or the cost of a transcript, shall be advanced 
 by the party calling the witness or ordering the transcript. 
 
 51. 
 
 EVIDENCE TAKEN BEFORE EXAMINERS, lETC. 
 
 Objections to the evidence, before an examiner or like officer, shall 
 be in short form, stating the grounds of objection relied upon, but 
 no transcript filed by such officer '3hall include argument or debate. 
 The testimony of each Iwitness, after being reduced to writing, shall 
 be read over to or by him, and shall be signed by him in the pres- 
 ence of the officer; provided, Miat if the witness shall refuse to sign 
 
' Fedbrai, Equity Rules 315 
 
 his deposition so taken, the officer shall sign the same, stating upon 
 the record the reasons, if any, assigned hy the witness for such 
 refusal. Objection to any question or questions shall be noted hy 
 the ofificer upon the deposition, but he shall not have power to de- 
 cide on the competency or materiality or relevancy of the questions. 
 The court shall have power, and it shall be its iduty, to deal with 
 the costs of incompetent and immaterial or irrelevant depositions, 
 or parts of them, as may be just. '■ 
 
 53. 
 
 ATTENDANCE OF WITNESSES BEFORE COMMISSIONER, 
 MASTER |OR EXAMINER. - 
 
 Witnesses who live within the district, and whose testimony may 
 be taken out of court by these rules, may be summoned to appear 
 before a commissioner appointed to take testimony, or before 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 commissioner, master, or 
 examiner, requiring the attendance of Ithe witnesses at ithe time and 
 place specified, who shall be allowed for attendance the same com- 
 pensation as for attendance in court; and if any witness shall refuse 
 to appear or 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 manner as if the 
 contempt -were for not 'attending, or for refusing to give testimony 
 in the court. 
 
 In case of refusal of witnesses to attend or be sworn or to answer 
 any question put by the commissioner, master or examiner or by 
 counsel or isolicitor, the same practice shall be adopted as is now 
 practiced with respect to witnesses to be produced on examination 
 before an examiner of said court on written interrogatories. 
 
 S3. 
 
 NOTICE OF TAKING TESTIMONY BEFORE EX- 
 AMINER, ETC. 
 
 Notice shall be given by the respective counsel or parties to the 
 opposite counsel or parties of the time and place of examination be- 
 fore an examiner or like officer for isuch reasonable time as the court 
 or officer may fix by order in each case. 
 
 54. 
 
 DEPOSITIONS UNDER IREV. STAT. ,§§ 863, 866, 867— CROSS- 
 EXAMINATION. 
 
 After a cause is at issue, depositions may be taken as provided by 
 
316 Equity Pleading and Practice " 
 
 Sections 863, 865, 866 and 867, Revised Statutes. But if in any case 
 no notice has been given the opposite party of the time and place of 
 taking the deposition, he shall, upon application and notice, be en- 
 titled to have the witness examined orally before the court, or to a 
 cross-examination before an examiner or like officer, or a new depo- 
 sition taken with notice, as the court or judge under all the circum- 
 stances shall order. 
 
 55. 
 
 DEPOSITIONS DEEMED PUBLISHED WHEN FILED. 
 
 Upon the filing -of any deposition or affidavit taken under these 
 rules or any statute, it shall be deemed published, unless otherwise 
 ordered by the court. 
 
 56. 
 
 ON EXPIRATION OF TIME FOR DEPOSITIONS, CASE GOES 
 ON TRIAL CALENDAR. 
 
 After the time has elapsed for taking and filing depositions under 
 these rules, the case shall be placed on the trial calendar. There- 
 after no further testimony by deposition shall be taken except for 
 some strong reason 'shown by affidavit. In every such application 
 the reason why the testimony of the witness cannot be had orally 
 on the trial, and why his deposition has hot been before taken, shall 
 be set forth, together with the testimony which it is expected the 
 witness wjll give. , 
 
 57. 
 CONTINUANCES. 
 
 After a cause shall be placed on the trial calendar it may be 
 passed over to another day of the same term, by consent of counsel 
 or .order of the court, but shall not be continued beyond the term 
 save in exceptional cases by order of the court upon good cause 
 shown by affidavit and upon such terms as the court shall in its 
 discretion impose. Continuances beyond the term by consent of the 
 parties shall be allowed, on condition only that a stipulation be 
 signed by counsel for all the parties and that all costs incurred there- 
 tofore be paid. Thereupon an order shall be entered dropping the 
 case from the trial calendar, subject to reinstatement within one 
 year upon application to the court by either party, in which event 
 it shall be heard at the earliest convenient day. If not so reinstated 
 within the year, the suit shall be dismissed without prejudice to a 
 new one. 
 
Federal Equity Rules 317 
 
 58. 
 
 DISCOVERY— INTERROGATORIES-INSPECTION AND PRO- 
 DUCTION )OF DOCUMENTS— ADMISSION OF EX- 
 ECUTION OR GENUINENESS. 
 
 The plaintiff at any time after filing the bill and 'not later tha/i 
 twenty-one days after the joinder of issue, and the defendant at any 
 time after filing his answer and not later than twenty-one days after 
 the joinder of issue, and either party at any time thereafter by leave 
 of the court or judge, may file interrogatories in writing for the 
 discovery by the opposite party or parties of facts and documents 
 material to the support or defense of the cause, with a note at the 
 foot thereof stating which of the interrogatories each of the parties 
 is required to answer. But no party shall file more than one set of 
 interrogatories to the same party without leave of the court or judge. 
 
 If any party to the .'cause is a public or private corporation, any 
 opposite party may apply to the court or judge for an order allow- 
 ing him to file interrogatories ,to be answered by any officer of the 
 corporation, and an order may be made accordingly for the ex- 
 amination of such officer as may appear 'to be proper upon such 
 interrogatories as the court or judge shall think fit. 
 
 Copies shall be Bled for the use of the interrogated party, and 
 shall be sent by the clerk to the respective solicitors of record, or 
 to the last known address of the opposite party, if there be no rec- 
 ord solicitor. 
 
 Interrogatories shall be answered, and the answers filed in the 
 clerk's office, within fifteen days after they have been served, unless 
 the time be enlarged by the court or judge. Each interrogatory shall 
 be answered separately and' fully and th'e answers shall be in writ- 
 ing, under oath, and signed by the party or corporate officer inter- 
 rogated. Within ten days after the service of interrogatories, ob- 
 jections to them, or any of them, may be presented to the court or 
 judge, with proof of notice of the purpose so to do, and answers 
 shall be deferred until the objections are determined, which shall 
 be at as early a time as is practicable. In so far as the objections 
 are sustained, answers shall not be required. 
 
 The court or judge, upon motion and reasonable notice, may make 
 all such orders as may be appropriate to enforce answers to in- 
 terrogatories or to effect the inspection or production of docu- 
 ments 'in the possession of either party and containing evidence ma- 
 terial to the cause of action or defense of his adversary. Any party 
 failing or refusing to comply with such an order shall be liable to 
 attachment, and shall also be liable, if a plaintiff, to have his bill 
 dismissed, and if a defendant, to have his answer stricken out and 
 be placed in the same situation as if he had failed to answer. 
 
318 Equity Pi,eading and Practice 
 
 By a demand served ten days before the trial, either party may call 
 on the other to admit in writing the execution or genuineness of 
 any document, letter or writing, saving all just exceptions; and if 
 such admission be not made within five days after such service, the 
 costs of proving the document, letter or writing shall be paid by 
 the party refusing or neglecting to make such admission, unless at 
 the trial the court shall find that the refusal or neglect was rea- 
 sonable. 
 
 59. 
 
 REFERENCE TO MASTER— EXCEPTIONAL, NOT USUAL. 
 
 Save in matters of account, a reference to a master shall be the 
 exception, not the rule, and shall be made only upon a showing 
 that some exceptional condition requires it. When such a refer- 
 ence is made, the party at whose instance or for whose benefit it is 
 made shall cause the order of reference to be presented to the mas- 
 ter for a hearing within twenty days succeeding the time when the 
 reference was made, unless a longer time be specially granted by 
 the court or judge; if he shall omit to do so, the adverse party shall 
 be at liberty forthwith to cause proceedings to be had before the 
 master, at the costs of the party procuring 'the reference. 
 
 60. 
 PROCEEDINGS BEFORE MASTER. 
 
 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 eacft of the parties, or their solicitors; and 
 if either party shall fail to appear at the time and place appointed, 
 the master shall be at liberty to proceed ex parte, or, in his dis- 
 cretion, to adjourn the examination and proceedings to a future day, 
 giving notice to the absent party or his solicitor of such adjourn- 
 ment; and it shall be the duty of the master to proceed with all 
 reasonable diligence in every such reference, and with the least 
 practicable 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 reason for any delay. 
 
 61. 
 
 MASTER'S REPORT— DOCUMENTS IDENTIFIED BUT NOT 
 
 SET FORTH. 
 
 In the reports made by the master to the court, no part of any 
 state of facts, account, charge, afifidavit, deposition, examination, or 
 
Fedh;eal Equity Rui.es 319 
 
 answer brought in or used before him shall be stated or recited. But 
 Such state of fact, account, charge, affidavit, deposition, examina- 
 tion, or answer shall be identified, and referred to, so as to inform 
 the court what state of ^acts, account, charge, affidavit, deposition, 
 examination, or answer were ,so brought in or used. 
 
 62. 
 
 POWERS OF MASTER, 
 
 The master shall regulate all the proceedings in every hearing 
 before him, upon every 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 writings, vouchers, and other documents applicable 
 thereto; and also to examine on oath, viva voce, all witnesses pro- 
 duced by the parties before him, or by deposition, according to the 
 acts of Congress or otherwise, as here provided; and also to direct 
 the mode in which the matters requiring evidence shall be proved 
 before him; and generally to do all other acts, and direct all other 
 inquiries and proceedings in the matters before him, which he may 
 deem necessary and proper to the 'justice and merits thereof and 
 the rights of the parties. 
 
 63. 
 FORM lOF ACCOUNTS (BEFORE MASTER. 
 
 All parties accounting before a master shall bring in their respec- 
 tive accounts in the form of debtor 'and creditor; and any of the 
 other parties who shall not be satisfied with the account so brought 
 in shall be at liberty to examine the accounting party viva voce, or 
 upon interrogatories, as the master shall direct. 
 
 64. 
 
 FORMER DEPOSITIONS, ETC., MAY BE USED BEFORE 
 
 MASTER. 
 
 All affidavits, depositions and documents which have been pre- 
 viously made, read, or used in the court upon any proceeding in any 
 cause or matter may be used before the master. 
 
 65. 
 CLAIMANTS BEFORE MASTER EXAMINABLE BY HIM. 
 
 The master shall be at liberty to examine any creditor or other 
 person coming in to claim before him, either upon written interrog- 
 atories or viva voce, or in both Jmodes, as the nature of the case may 
 appeal to him to require. The evidence upon such examinations 
 
320 Equity Pleading and Practice 
 
 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. 
 
 66. 
 
 RETURN OF MASTER'S REPORT— EXCEPTIONS— HEARING. 
 
 The master, as soon ^s his report is ready, shall return the same 
 intp the clerk's office and the day of the return shall be entered by 
 the clerk in the Equity I'Docket. The parties shall have twenty days 
 from the time of the filing of the report to file exceptions thereto, 
 and if no exceptions are 'within that period filed by either party, 
 the report shall stand confirmed. If exceptions are filed, they shall 
 stand for hearing before the court, if then in session, or, if not, at 
 the next sitting held thereafter, by adjournment or otherwise. 
 
 67. 
 COSTS ON EXCEPTIONS TO MASTER'S REPORT. 
 
 In order to prevent exceptions to reports from being filed for 
 frivolous causes, or for mere delay, the p^irty whose exceptions are 
 overruled, shall, for every exception overruled, pay five dollars costs 
 to the other party, and for every 'exception allowed shall be entitled 
 to the same costs. 
 
 68. 
 
 APPOINTMENT AND COMPENSATION OF MASTER. 
 
 The District Courts 'may appoint standing masters in chancery in 
 their respective districts (a majority of all the judges thereof con- 
 curring in the appointment), and they may also appoint a master 
 pro hac \vice in any particular case. The compensation to be al- 
 lowed to every master shall be fixed by the district court, in its 
 discretion, having regard to all the circumstances thereof, and the 
 compensation shall be charged upon and borne by such of the par- 
 ties in the "cause as the court shall direct. The master shall not 
 retain his report as security for his compensation; but when the 
 compensation is allowed by the court, he shall be entitled to an at- 
 tachment 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. 
 
 69. 
 
 PETITION FOR REHEARING. 
 
 Every petition for a rehearing shall contain the special matter or 
 cause on which such rehearing is applied for, shall be signed by 
 counsel, and the facts therein stated, if not apparent on the record, 
 
.Federai, Equity Rules 321 
 
 shall be verified by the oath of the party or by some other person. 
 No rehearing shall be granted after the term at which the final de- 
 cree of the court shall have been entered and recorded, if an appeal 
 lies to the Circuit Court of Appeals or 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. 
 
 70. 
 SUITS BY OR AGAINST INCOMPETENTS. 
 
 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 incapable of suing for them- 
 selves. 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 or judge may direct for the protection of 
 infants, and other persons. 
 
 71. 
 
 FORM OF DECREE. 
 
 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 decree and order shall begin, in sub- 
 stance, as follows: "This cause came on to be heard (or to be fur- 
 ther heard, as the case may be) at this term, and was argued by 
 counsel; and thereupon, upon consideration thereof, it was ordered, 
 adjudged and decreed as follows, viz:" (Here insert the decree or 
 order.) 
 
 72. 
 
 CORRECTION OF CLERICAL MISTAKES IN ORDERS AND 
 
 DECREES. 
 
 Clerical mistakes in decrees or decretal orders, or errors arising 
 from any accidental slip or omission, may, at any time before the 
 close of the term at which final decree is rendered, be corrected by 
 order of the court or a judge thereof, upon petition, without the 
 form or Qpcpense of a rehearing. 
 
 73. 
 
 PRELIMINARY INJUNCTIONS AND TEMPORARY- RE- 
 STRAINING ORDERS. 
 
 No preliminary injunction shall be granted without notice to the 
 opposite party. Nor shall any temporary restraining order ' be 
 granted without notice to the opposite party, unless it shall clearly 
 
322 Equity Pleading and Peacbice 
 
 appear from specific facts, shown by affidavit or by the verified bill, 
 that immediate and irreparable loss or damage will result to the 
 applicant before the matter can be heard on notice. In case a tem- 
 porary restraining order shall be granted without notice, in the con- 
 tingency specified, the matter shall be made returnable at the earliest 
 possible time, and in no event later than ten days from the date of 
 the order, and shall take precedence of all matters, except .older 
 matters of the same character. When the matter comes up for 
 hearing the party who obtained the temporary restraining order shall 
 proceed with his application for a preliminary injunction, and if 
 he does not do so the court shall dissolve his temporary restrain- 
 ing order. Upon two days' notice to the party obtaining such tem- 
 porary restraining Order, the opposite party may appear and move 
 the dissolution or modification of the order, and in that event the 
 court or judge shall proceed to hear and determine the motion as 
 expeditiously as the ends of justice may require. Every temporary 
 restraining order shall be forthwith filed in the clerk's office. 
 
 74. 
 
 INJUNCTION PENDING APPEAL. 
 
 When an appeal from a final decree, in an equity suit, granting or 
 dissolving an injunction, is allowed by a justice or a judge who took 
 part in the decision of the cause, he may, in his discretion, at the 
 time of such allowance, make an order suspending, modifying or 
 restoring the injunction during the pendency of the appeal, upon 
 such terms, as to bond or otherwise, as he may consider proper 
 for the security of the rights of the opposite party. 
 
 75. 
 RECORD ON APPEAL— REDUCTION AND PREPARATION. 
 
 In case of appeal: 
 
 (a) It shall be the duty of the appellant or his solicitor to file 
 with the clerk of the court from which the appeal is prosecuted, 
 together with proof or acknowledgment of service of a copy on 
 the appellee or his solicitor, a precipe which shall indicate the por- 
 tions of the record to be incorporated into the transcript on such 
 appeal. Should the appellee or his solicitor desire additional por- 
 tions of the record incorporated into the transcript, he shall file 
 with the clerk of the court his precipe also within ten days there- 
 after, unless the time shall be enlarged by the court or a judge 
 thereof, indicating such additional portions of the record desired 
 by him. 
 
 (b) The evidence to be included in the record shall not be set 
 forth in full, but shall be stated in simple and condensed form, all 
 
Federal Equity Rules 323 
 
 parts not essential to the decision of the questions presented by 
 the appeal being omitted and the testimony of witnesses being stated 
 only in narrative form, save that if either party desires it, and the 
 court or judge so directs, any part of the testimony shall be re- 
 produced in the exact words of the witness. The duty of so con- 
 densing and stating the evidence shall rest -primarily on the ap- 
 pellant, who shall prepare his statement thereof and lodge the same 
 in the clerk's office for the examination of the other parties at or 
 before the time of filing his precipe under paragraph (a) of this 
 rule. He shall also notify the other parties or their solicitors of 
 such lodgment and shall- name a time and place when he will ask 
 the court or judge to approve the statement, the time so named to 
 be at least ten days after such notice. At the expiration of the 
 time named or such further time as the court or judge may allow, 
 the statement, together with any objections made or amendments 
 proposed by any party, shall be presented to the court or the judge, 
 and if the statement be true, complete and properly prepared, it 
 shall be approved by the court or judge, and if it be not true, com- 
 plete or properly prepared, it shall be made so under the direction 
 of the court or judge and shall then be approved. When approved, 
 it shall be filed in the clerk's office and become a part of the record 
 for the purposes of the appeal. 
 
 (c) If any difference arise between the parties concerning direc- 
 tions as to the general contents of the record to be prepared on the 
 appeal, such difference shall be submitted to the court or judge in 
 conformity with the provisions of paragraph (b) of this rule, and 
 shall be covered by the directions which the court or judge may 
 give on the subject. 
 
 76. 
 
 RECORD ON APPEAL— REDUCTION AND PREPARATION- 
 COSTS— CORRECTION lOF OMISSIONS. 
 
 In preparing the transcript on an appeal, especial care shall be 
 taken to avoid the inclusion of more than one copy of the same paper 
 and to exclude the formal and immaterial parts of all exhibits, doc- 
 uments and other papers included therein; and for any infraction 
 of this or any kindred rule the appellate court may withhold or 
 impose costs as the circumstances of the lease and the discourage- 
 ment of like infractions in the future may require. Costs for such 
 an infraction may be imposed upon offending solicitors as well as 
 parties. 
 
 If, in the transcript, anything material to either party be omitted 
 by accident or error, the appellate court, on a proper suggestion 
 or its own motion, may direct that the omission be corrected by 
 a supplemental transcript. 
 
324 Equity Pleading and Practice 
 
 77. 
 RECORD ON APPEAI^-AGREED STATEMENT. 
 
 When the questions presented by an appeal can be determined 
 by the appellate court without an examination of all the pleadings 
 and evidence, the parties, with the approval of the District Court 
 or the judge thereof, may prepare and sign a statement of the case 
 showing how the questions arose and were decided in the District 
 Court, and setting forth so much only of the facts alleged and 
 proved, or sought to be 'proved, as is essential to a decision of such 
 questions by the Appellate Court. Such statement, when filed in 
 the office of the clerk of the District Court, shall be treated as super- 
 seding, for the purposes of the appeal, all parts of the record other 
 than the decree from which the appeal is taken, and, together with 
 such decree, shall be copied and certified to the Appellate Court as 
 the record on appeal. 
 
 78. 
 
 AFFIRMATION IN LIEU OF OATH. 
 
 Whenever under these rules an oath is or may be required to be 
 taken, the party may, if conscientiously scrupulous of taking an oath, 
 in lieu thereof make solemn affirmation to the truth of the facts 
 stated by him. 
 
 79. 
 
 ADDITIONAL RULES BY DISTRICT COURT. 
 
 With \ht concurrence of a majority of the circuit judges for the 
 circuit, the District Courts may make any other and further rules 
 and regulations for the practice, proceedings and process, mesne and 
 final, in their respective districts, not inconsistent with the rules 
 hereby prescribed, and from time to time alter and amend the same. 
 
 80. 
 
 COMPUTATION OF TIME— SUNDAYS AND HOLIDAYS. 
 
 When the time prescribed by these rules for doing any act ex- 
 pires on a Sunday or legal holiday, such time shall extend to and 
 include the next succeeding day that is not a Sunday or legal holiday. 
 
 81. 
 
 THESE RULES EFFECTIVE FEBRUARY 1, 1913 
 —OLD RULES ABROGATED. 
 
 These rules shall be in force on and after February 1, 1913, and 
 shall govern all proceedings in cases then pending or thereafter 
 
Fedbeai, Equity Rules 325 
 
 brought, save that where in any then pending cause an order has 
 been made or act done which cannot be changed without doing sub- 
 stantial injustice, the court may give effect to such order or act 
 to the extent necessary to avoid any such injustice. 
 
 All rules theretofore prescribed by the Supreme Court, regulating 
 the practice in suits in equity, shall be abrogated when these rules 
 take effect. 
 
TJ^BI^E; OF" o^3s.©E;s 
 
 Abels V. Planters, etc., Inc. Co § 168 
 
 Adriaans v. Lyon § 236 
 
 Alexander v. Critchter § 275 
 
 Almond v. Almond § 403 
 
 Almond v. Wilson § 446 
 
 Ambler v. Choteau § 144 
 
 Am. Banking Co. v. Am. Surety Co § 46 
 
 Am. Exchange /Bank v. First (Nat. Bank § 273 
 
 Appalachia v. Mainous §§ 330, 336 
 
 Applegate v. Lexington .- §§ 20, 38 
 
 Asberry v. Mitchell §§ 286, 439 
 
 A. S. White & Co. v. Jordan § 44 
 
 Atherton v. Atherton § 406 
 
 Ayres v. jBurk § 458 
 
 Bailey v. Johnson §§ 379, 388 
 
 Baker v. Baker, Eccles & iCo ^. § 41 
 
 Baker v. Berry Hill Co § 133 
 
 Baker v. Briggs § 358 
 
 Baker v. Cummings § 239 
 
 Baker v. -Oil Trust Co § 168J4 
 
 Baker v. Vorhees §§ 38, 40 
 
 B. & O. R. Co. V. Wheeling §§ 351, 354 
 
 Bank v. Trigg §§ 274, 464, 465 
 
 Banks v. Anderson § 196 
 
 Banks v. Manchester , §§ 205, 236 
 
 Barger v. Auckland §§ 198, 347 
 
 Barnes v. Lynch '. § 386 
 
 Barrett v. McAllister § 520 
 
 Barrey v. Saunders § 40 
 
 Bartlett v. Cicero iLight Co § 493 
 
 Barton v. Barbour §§ 491, 498 
 
 Basey'i;. Gallagher § 276 
 
 Bassett v. Cunningham §§ 145, 216, 218 
 
 Battaille v. Maryland Hospital §§ 187, 190, 288 
 
 Battell V. Torrey § 437 
 
 Battle V. Davis § 499 
 
 Baylor v. De Jarnette § 9§ 
 
 Beach v. Bellwood § 135 
 
 Beach v. Woodyard § 343 
 
 Beall V. Silver § 135 
 
328 Tabi.e op Cases 
 
 Beatty v. Barley § 182 
 
 Becker v. Johnson § 184 
 
 Beckley v.. Palmer § 358 
 
 Beekman v. Waters § 164 
 
 Beggs V. Wellman § 119 
 
 Belton V. Apperson § 162 
 
 Benet v. Ford '§§ 297, 302 
 
 Berlin 'v. Melhorn §§ 399, 300 
 
 Bernard v. Merrill § 104 
 
 Bernheimer v. Converse §§ 508', 509 
 
 Bethea v. Call § 104 
 
 Beverley v. Brooks §§ 467, 471, 480 
 
 Bibb V. American, ,etc., Co ;.. § 155 
 
 Bigelow V. Littlefield § 386 
 
 Bilmeyer p. Sherman § 454 
 
 Birckhead v. C. & O. |Ry. €o § 20« 
 
 Blanchard v. Dominion iNat. Bank §§ 339,- 260 
 
 Blankenship "v. Blankenship §§ 16, 17, 18, 28, 29, 399, 402, 403 
 
 Bockover )v. L,ife /Association § 509 
 
 Boggess V. Meredith § 386 
 
 Boiling V. Teel § 393 
 
 Booth V. 'Clark § 505 
 
 Boston Blower Co. v. Carman Lumber Co §§ 33, 115 
 
 Bowles V. iSchoenberger .' § 343 
 
 Boyce v. Strother § 303 
 
 Boyle V. Townes ^§ 500, 501 
 
 Bradley v. Amidon § 105 
 
 Bradley v. iBradley § 190 
 
 Brenham v. Smith §§ 18, 28, 314, 437 
 
 Brent v. (Washington § 100 
 
 Brigham v. Luddington § 505 
 
 Bristol, etc., Co. v. Caldwell § 464 
 
 Bristow V. Home Building :Co § 476 
 
 Brock V. Rice §§ 299, 300 
 
 Bronson v. iLa Crosse IR. Co § 1685^ 
 
 Brown v. Bedford, €tc., Co § 337 
 
 Buchanan v. )Rucker § 44 
 
 Buck ly. Coldbath § 454 
 
 Bunkley v. Com §§ 274, 276 
 
 Burdett v. Cain § 105 
 
 Burnham v. palling § 343 
 
 Burwell v. Corbin § 104 
 
 ,Caghill V. Woodbridge § 501 
 
 Caldwell V. iMcWilliams § 327 
 
 Callaway v. Saunders § 455 
 
 Camden v. Mayhew §§ 298, 305 
 
Tabi,h; op Cases 329 
 
 Camden v. iVa. Safe 'Deposit, etc., Co § 483 
 
 Camp V. Bruce § 301 
 
 Carle v. Corhan §§ 34, 151, 236, 238, 254, 374 
 
 Carneal v. Lynch §§ 96, 380, 387 
 
 Carter v. Jefferies § 274 
 
 Carters' Case § 317 
 
 Cates V. Allen §§ 440^, 443 
 
 Catron v. Bostic §§ 15, 441 
 
 Catron v. Yorton Hardware ICo §§ 374, 275 
 
 Central Transp. Co. v. McGeorge § 31 
 
 Central Trust Co. v. East Tenn., etc., iR. Co § 510 
 
 Chappel V. Proctor § 119 
 
 Chavannes v. Priestly § 61 
 
 Chesapeake, etc., R. Co. v. Washington, etc., R. Co § 65 
 
 Citizens Bank of Wichita v. Farwell § 327 
 
 Claiborne v. Gross §§ 343, 347, 350 
 
 Clark V. Tinsley § 248 
 
 Clark V. Van Riemsdyk § 237 
 
 Clarkson v. Read § 305 
 
 Clayton v. Tyson § 457 
 
 Clements v. Moore § 238 
 
 Clyde V. ;Richmond & ID. R. Co § 510 
 
 Cocke V. Gilpin §§ 188, 300 
 
 Cocke V. Minor §§ 242, 250, 259 
 
 Coddington ^V. Canaday § 498 
 
 Cofifman v. Langston §§ 91, 164 
 
 Coleman v. Line §' 347 
 
 Coleman v. Lyne § 251 
 
 Coleman v. Va. Btave Co §§ 18, 431, 436, 437, 438, 439 
 
 Coles V. McRae , § 464 
 
 Connolly \j. Connolly § 183 
 
 Converse v. Hamilton § 509 
 
 Cooper V. Commonwealth § 403 
 
 Cooper V. Newell § 40 
 
 Cooper V. Sunderland § 18 
 
 Corcoran n). C. & lO. Canal Co .'. § 99 
 
 Cox V. McMullin § 390 
 
 Craig V. DHoge § 454 
 
 Craig V. Sebrell §§ 40, 248 
 
 Craig V. Williams § 350 
 
 Cratty v. Eagle § 104 
 
 Crawford v. Ross § 475 
 
 Crockett v. Woods § 167 
 
 Croft V. Croft § 409 
 
 Crompton v. Zabriskie § 91 
 
 Cummingham v. Johnson § 390 
 
330 TabIvB o:f Cases 
 
 Custis V. Snead §§ 382, 389 
 
 Dangerfield v. ISmith § 439 
 
 Davis V. American, etc.. Union § 168'^ 
 
 Davis V. Morriss § 233 
 
 Davis V. Speiden § 179 
 
 Day V. Smith § 342 
 
 De Arman v. Massey § 41 
 
 Deatrick v. iState iLife Ins. Co § 29 
 
 Dechert v. Cliesapeake, etc., Co §§ 464, 467, 480 
 
 De La Montanya v. De L,a Montanya _... § 406 
 
 Dennis v. Dennis § 386 
 
 Dennis v. Justus § 338 
 
 Derbyshire v. Jones §§ 166, 167, 168 
 
 Dinwiddie County 'p. Stuart § 39 
 
 Downey v. Seib § 98 
 
 Dows V. McMichael : § 226 
 
 Dudley v. Miner § 372 
 
 Dunn V. IDunn § 337 
 
 Durbin v. Roanoke iBuilding Co § 183 
 
 Durrett v. Davis §§ 437, 438, 439 
 
 Earle v. McVeigh § 65 
 
 East India Co. v. Donald § 236 
 
 Eaves V. Vial '. § 314 
 
 Echols V. Brennam § 28S 
 
 Edmeston v. Lyd'e § 451 
 
 Elliott V. Piersol § 13 
 
 EUzey V. Lane § 182 
 
 Emerson v. Emerson § 417 
 
 Ensley Devel. Co. v. Powell § 476 
 
 Equitable 'Life Association "v. Laird , § 164 
 
 Equitable Life Soc. k Wilson § 168 
 
 Evans V. Johnson § 61 
 
 Evans V. Roanoke Savings Bank § 135 
 
 Ewing V. IFerguson § 163 
 
 Face V. Cherry § 374 
 
 Fall "V. Eastin § 311 
 
 Fant V. Miller § 236 
 
 Farley v. Kittson § 266 
 
 Farr v. Farr § 409 
 
 Farrell v. Forest Invest Co §§ 7, 238, 341^4 
 
 Faulkner v. Davis §§ 97, 98, 423, 436 
 
 Fewlass v. Abbott § 119 
 
 Fidelity Insurance, etc., Co. v. Roanoke Iron Co § 512 
 
 Finlayson v. Lipscombe § 168^ 
 
 Finney v. Bennett § 441 
 
 First Nat. Bank v. Chehalis Co § 144 
 
TabIvE of Cases 331 
 
 Fischer v. L,ee , § 73. 
 
 Fleenor v. Hensley § 115 
 
 Flemming v. Grafton , §§ 440^, 443 
 
 Folger V. Columbia Ins. Co § 506 
 
 Fosdick V. Schall § 485 
 
 Fowler 'p. Mosher § 65 
 
 Frayser v. Railway Co § 479 
 
 Freedman's Bank v. Earl §§ 440^, 446, 451 
 
 Freedman's Sav. Bank 'v. Shepperd § 484 
 
 Freeman v. Winchester § 499 
 
 Freidenheim v. Rohr ^ § 476 
 
 French v. Chapin-Sachs Mfg. Co § 364 
 
 Fudge V. jPayne i § 206 
 
 Fulton V. Cox § 115 
 
 Fulton V. Rosevelt § 104 
 
 Galpin v. Page § 39 
 
 Gardner v. Richardson § 197 
 
 Gay V. Hancock § 464 
 
 Gay V. Parpart § 322 
 
 Gibbs V. ;Perkinson § 232 
 
 Giles V. Paxson § 372 
 
 Gill V. Barbour § 313 
 
 Gills V. Gills §§ 164, 169, 189, 190 
 
 Glenn v. Brown §§ 155, 165 
 
 Goldey V. Morning News § 31 
 
 Gompers v. Buck Stove, etc., Co § 317 
 
 Goode V. Bryant §§ 183, 271, 274 
 
 Goodman v. Goodman §§ 249, 388 
 
 Goodman v. Winter § 33 
 
 Gormley v. Bunyan § 272 
 
 Graham v. Burgess § 302 
 
 Great Falls Mfg. Co. v. Henry § 372 
 
 Great Western 'Mining, etc., Co. •v. Harris § 505 
 
 Green v. Massie §§ 15, 203 
 
 Grigsby v. Weaver § 276 
 
 Grogan v. Egbert § 506 
 
 Guggenheimer v. Lockridge § 4405^ 
 
 Hale V. Allinson § 505 
 
 Hamilton v. Houghton § 322 
 
 Hardin Jr. Boyd § 160 
 
 Hardy v. Coley § 302 
 
 Harkness v. Hyde § 41 
 
 Harrison w. Walton §§ 98, 286 
 
 Harrison v. Wissler § 49 
 
 Harwell v. Potts § 475 
 
 Hatch V. Spofford §§ 231, 233 
 
332 Tabi,e of Cases 
 
 Haven v. Trammell §§ 135, 414 
 
 Hawes v. Oakland § 472 
 
 Hawkins '^v. Glenn § 508 
 
 Haynor p. Haynor § 410 
 
 Hefner v. Ins. Co § 73 
 
 Heigler v. Faulkner § 14 
 
 Hess V. Gayle § 61 
 
 Hess V. IRader § 294 
 
 Heywood v. Covington § 30O 
 
 Hicks V. Roanoke, etc., Co § 350 
 
 Highland Park jMfg. ;Co. v. Steele § 386 
 
 Hilliard v. Union Trust Co § 302 
 
 Hilton V. Consumers' Can Co §§ 20, 31 
 
 Hinton v. Bland § 106 
 
 Hirshfield v. Fitzgerald § 453 
 
 Hitchmann, etc., Co. v. Mitchell §§ 31, 92 
 
 Hoback V. Miller §§ 18, 437 
 
 Hogan V. Taylor § 380 
 
 Holbrook v. Ford § 506 
 
 Holland te'. Trotter '. § 163 
 
 Hollins V. Brierfield Coal Co § 441 
 
 Home Building Co. v. London § 341 
 
 Homer v. Barr, etc., Co § 499 
 
 Hook te. Hook ■. § 275- 
 
 Hoover v. Mitchell § 290 
 
 Hotchkiss •:;'. Middlekauf §§ 45, 46 
 
 Howarth v. JLombard § 508 
 
 Howell V. Marien § 299 
 
 Howery v. Helms § SSg^ 
 
 Hubble V. Poff § 211 
 
 Hudson V. 'Barham § 464 
 
 Hudson V. 'Hudson § 166 
 
 Hurt V. Jones §§ 134, 305, 307, 309 
 
 In re Christian Jensen Co § 479 
 
 In re Moore §§ 26 (2), 50 
 
 In re Valentine § 437 
 
 Jackson v. Counts § 104 
 
 Jackson v. Hull § 455 
 
 Jacksonville, etc., Co. v. Stockton § 477 
 
 James v. Bird § 135 
 
 Jeffries v. Jeffries § 60 
 
 Jenkins v. Eldredge § 191 
 
 Jerome v. McCarter ? :. § 512 
 
 John Diebold Co. v. Tatterson § 275 
 
 Johnson v. Black § 91 
 
 Johnson v. Merritt §§ 41, 44, 135, 188, 190, 191, 294, 297, 299,' 309, 310 
 
Table Q-e Cases 333 
 
 Johnson v. Mundy § 239 
 
 Johnson v. Waters § 451 
 
 Johnson v. Wilson ;. § 248 
 
 Jones V. Abraham § 338 
 
 Jones V. Buckingham Slate Co §§ 190, 374 
 
 Jones V. Conde §. 331 
 
 Jones V. Pilcher § 182 
 
 Jones V. Woodstock Iron Co § 309 
 
 Judson V. Blanchard : § 104 
 
 Kane v. Mann § 90 
 
 Kane v. Schuylkill Fire Ins. Co § 254 
 
 Karn & Hickson v. Rorer Iron Co § 512 
 
 Kavanaugh v. Schacklett §§ 380, 387 
 
 Kehr v. Hall § 501 
 
 Kelly V. Gwatkins •. § 159 
 
 Kelly V. Hamblen §§ 205, 248 
 
 Kendrick v. Whitney §§ 165, 196, 198, 199, 464 
 
 Kennedy 'v. Baylor § 342 
 
 Kennedy v. Creswell § 226 
 
 Kent V. Cloyd § 454 
 
 Kent V. iLake Superior, etc., Co §§ 99, 513 
 
 Keys V. Planing Mill Co. v. Kirkbridge §§ 175, 232 248 
 
 Keyser v. Renner § 90 
 
 Kimberly v. Arms § 275 
 
 Kingsbury v. Buckner §§ 104, |429 
 
 Kinnersley v. Knott , § 119 
 
 Kirk v. lOakey § 303 
 
 Klaus V. State § 104 
 
 Knowles if. Gas Light Co § 67 
 
 Knox County w. Harshman § 65 
 
 Lackawanna, etc., Co. v. 'Farmers Loan I& Trust Co § 487 
 
 Loidley v. Merrifield § 198 
 
 Lake v. Hope § 104 
 
 Lambert v. Ensign Mfg. Co § 312 
 
 Lancaster v. Barton §§ 386, 427, 432, 439 
 
 Lancaster v. Stokes § 32 
 
 Lang V. Lang § 402 
 
 Latham v. Latham § 410 
 
 Laurel Creek, etc., Co. v. Browning § 387 
 
 Lavell V. Gold § 274 
 
 Lavell V. jMcCurdy §§ 20, 33 
 
 Lawrence v. Bolton § 164 
 
 Lawrence Mfg. Co. v. 'Ganesville Cotton Mills § 323 
 
 Lee V. Lindell § 384 
 
 Lee V. Swepson § 312 
 
 Lee V. Willis § 279 
 
334 TABI.E OF Cases 
 
 Lemmon v. Herbert, §§ 33, 106, 429 
 
 Lemon v. Harnsbarger § 105 
 
 L^vries v. Johnston § :i49 
 
 Lillard v. Graves § 302 
 
 Linn <v. Carson § 93 
 
 Litton V. Flanary § 302 
 
 Litz V. Rowe §§ 14, 388 
 
 Livingston w. Story § 530 
 
 Lloyd V. Erwin '. § 312 
 
 Long V. Weller §§ 303, 305, 306 
 
 Lovell V. S. S. Mill Ass'n § 254 
 
 Lucy V. Kelly § 385 
 
 Lynchburg v. Dameron § 91 
 
 Lynde v. jLynde §§ 135, 414 
 
 Lyons V. Miller § 343 
 
 McAllister v. Harman §§ 294, 498 
 
 McCartney v. Jyrer § 458 
 
 McClannahan v. N. & W. IR. Co §§ 446, 453, 458 
 
 McDermutt z\ Strong § 451 
 
 McDonald v. Mabee § 27 
 
 McF-arland v. Hunter §§ 150, 243 
 
 McGourkey v. iToledo, etc., R. Co § 189 
 
 McGowan v. Parish § 134 
 
 McLennan v. Railway Co ;. § 373 
 
 McLeod -v. New Albany „ § 200 
 
 McMuUen v. Eagan § 167 
 
 McNulta V. Lockridge §§ 493, 497 
 
 McRae v. Board § 346 
 
 Mahon v. Ongley Electric Co § 510 
 
 Mallory rv. iVirginia Colony Feeble Minded § 20 
 
 Manuel v. k. ;& W. iR. Co § 312 
 
 Marsh v. Marsh § 409 
 
 Martin v. Kester -. §§ 170, 467 
 
 Martin v. South Salem Land Co § 164 
 
 Mathews Co. v. Progress Co § 188 
 
 Matney v. Yates §§ 165, 189, 198, 330, 336, 337 
 
 Meade v. Meade , § 274 
 
 Melendy v. iBarbour § 491 
 
 Mellen v. Moline § 33 
 
 Merchants Bank v. Paine § 442 
 
 Merritt v. Johnson § 348 
 
 Mettert v. Hagan § 170 
 
 Meyers Bros. v. Harman Bros § 471 
 
 Miedrick v. Lovenstein §§ 40, 6-5 
 
 Miles V. Kaigler § 104 
 
 Miller v. Argyle § 464 
 
TabIvE of Cases 335 
 
 Miller p. Hay § 119 
 
 Miller V. Miller. § 409 
 
 Millhizer v. McKinley § 239 
 
 Minnesota v. Northern Securities Co § 89 
 
 Monroe Cattle Co. v. Becker § 119 
 
 Moon V. Highland Development Co § 383 
 
 Moore v. Holt § 40 
 
 Moore v. N. & W. R. Co §§ 14, 19, 26 (2), 50, 358 
 
 Moore v. Triplett § 273 
 
 Moorman v. Smoot _. § 166 
 
 Morgan v. Haley § 388 
 
 Morgan v. Potter .? § 104 
 
 Morgan v. fThorne § 104 
 
 Morse v. State § 337 
 
 Mount V. Brown.. § 298 
 
 Mount V. Radford Trust Co § 374 
 
 Mountain /Lake Co. v. Blair §§ 374, 275 
 
 Muller V. Bayly §§ 357, 358 
 
 Murtey v. Allen § 499 
 
 Nash V. Collier § 119 
 
 National Brake, etc., Co. v. Christensen § 184 
 
 Neal V. Foster ; § 168^ 
 
 Neale v. Utz § 21 
 
 Newton v. Bronson § 45 
 
 N. Y., etc., Ins. Co. v. Bangs § 61 
 
 N. Y. iLife Ins. Co. v. Davis § 498 
 
 N. &. W. Ry. Co. V. Old Dom. Bag. Co § 306 
 
 N. & W. R. Co. V. Postal Tel. Co § 358 
 
 Norris v. Graves § 119 
 
 Northern, etc., R. Co. v. Michigan Central, etc., R. Co § 46 
 
 Nulton V. 'Isaacs § 22 
 
 Nunnally v. Strauss § 441 
 
 Oakley v. Pegler § 119 
 
 O'Bannon v. Roberts § 343 
 
 O'Connell v. McNamara § 322 
 
 Oelrichs v. Williams ■ § 33 
 
 Osborne v. Big Stone Gap, etc., Co § 613 
 
 Ostenburg v. Union iTrust Co § 303 
 
 Pack V. Whitaker ; § 333 
 
 Painter v. Painter § 493 
 
 Parker v. McCoy § 61 
 
 Parker v. Stephenson §§ 18, 437 
 
 Passenger & Power Co. v. Fisher § 472 
 
 Patapsco Ins. Co. v. Southgate § 273 
 
 Patterson v. Cnawfor'd § 313 
 
 Patterson -v. 'Eakin §§ 341, 347, 348 
 
336 Table of Cases 
 
 Peay v. Morrison § 443 
 
 Pechin v. Porterfield § 303 
 
 Penn v. Hearon § 90 
 
 Pennoyer v. Neff §§ 13, 41, 44 
 
 Perkins v. Nichols § 342 
 
 Perrow v. Webster §§ 164, 169, 170 
 
 Peters v. Peters § 288 
 
 Pethel V. McCullough § 168 
 
 Pettyjohn v. Burson § 162 
 
 Pewabic Mining ICo. v. Mason § 303 
 
 Phillips V. Dulaney §§ 379, 385, 390 
 
 Phipps V. Wise Hotel Co' §§ 183, 199 
 
 Pickett V. Chilton , § 350 
 
 Pickford v. Talbott § 373 
 
 Piedmont Life Ins. Co. v. iMaury § 453 
 
 Pillow v. Southwest, etc., Co §§ 377, 388 
 
 Piatt -v. Philadelphia, etc., R. Co § 510 
 
 Poindexter v. Burnwell §§ 46, 3J)3 
 
 Pollard V. Southern FertiHzer Co § 477 
 
 Porter v. Williams § 499 
 
 Powell zi. Manson § 243 
 
 Powell V. Mason § 274 
 
 Preston v. Kindrick §§ 40, 65 
 
 Preston v. ,Va. Mining Co §§ 380, 388 
 
 Price V. Thrash §§ 73, 440'/^ 
 
 Priddy v. Hartsook §§ 231, 232 
 
 Proctor V. Ferebee §§ 309, 481 
 
 Pulaski County v. Stuart § 39 
 
 Pulliam V. Thompkins § 313 
 
 Pulham V. Winston § 374 
 
 Pullman v. Stebbins § 441 
 
 Ragland v. Brodnax § 168 
 
 Painey v. Freeport, etc., Co § 475 
 
 Randolph's Ex'r v. Tucker § 358 
 
 RawHngs v. Rawlings §§ 182, 188 
 
 Reed v. Axtell § 491 
 
 Re iGamewell Fire Alarm, etc., Co § 184 
 
 Kelfe V. ;Rundle §§ 467, 509 
 
 Repass v. Moore §§ 189, 465 
 
 Rhea v. :Shields §§ 420, 433, ,436, 437, 438 
 
 Rhode Island v. Massachusetts § 31 
 
 Rhodes v. Cousins § 440 
 
 Richardson v. Gardner §§ 186, 188 
 
 Richardson v. Jones § 394 
 
 Richmond v. Irons § 455 
 
 Richer v. Powell § 179 
 
Table of Cases 337 
 
 Ritchie v. McMullen , § 144 
 
 Roanoke Street R. Co.' v. Hicks , §§ 151, 354 
 
 Roberts v. Hagan §§ 18, '28, 379, 396, 397, 437 
 
 Robertson v. Smith § 298 
 
 Roche V. Nesters §§ 18, 437 
 
 Rogers v. Dougherty § 476 
 
 Roller V. Holley §§ 42, 44 
 
 Root V. Woolworth § 333 
 
 Ross V. Crary § 459 
 
 Royall V. Johnson § 190 
 
 Ruffn&r v. Mairs § 476 
 
 Rufifners v. Barrett § 276 
 
 Ruge V. Ruge §§ 399, 417 
 
 Rush V. Dickenson County Bank §§ 44054, 464 
 
 Ryan v. McLeod ; §§ 188, 190 
 
 St. Louis S. W. R. Co. V. Holbrook §§ 496, 497 
 
 Salamone v. Keily §§ 203, 204 
 
 Saunders v. Bank §§ 337, 472, 483 
 
 Sayre v. Elyton Land 'Co § 165 
 
 School Board v. Parish § 337 
 
 Scott V. Streepy §§ 20, 41 
 
 Screven v. Clark § 498 
 
 Seefried v. Clarke §§ 333, 379, 387 
 
 Seely v. Boon § 119 
 
 Seitz V. 'Mitchell § 236 
 
 Sergeant v. State ,... § 65 
 
 Sharp v. Shenandoah IFurnace Co § 182 
 
 Shelton V. Sydnor §§ 13, 14, 17, 38, 40 
 
 Shepperd v. Larue § 191 
 
 Shepperd v. Pepper § 484 
 
 Shickel V. Berryville Land Co,_, § 465 
 
 Shields V. Barrow § 167 
 
 Shipman v. Fletcher § 275 
 
 Shirkey v. Kirby , §§ 430, 437 
 
 Shoemaker v. Shoemaker § 275 
 
 Shultz V. Hansbrough §§ 452, 464 
 
 Siegfried v. Perkins § 91 
 
 Sigman v. Lundy § 168 
 
 Sillings V. Bumgardner §§ 102, 105 
 
 Simmons v. Lyles §§ 452, 464 
 
 Simmons v. Simmons §§ 158, lfi5 
 
 Simon V. ,Craft § 61 
 
 Sims V. Tyrer § 464 
 
 Singerly v. Fox § 501 
 
 Siron v. Ruleman § 290 
 
 Smith V. 'Butcher §§ 475, 484 
 
338 Table of Cases 
 
 Smith V. .Hutchinson § 457 
 
 Smith V. Pyrites )Mining Co § 348 
 
 Smith V. Smith §§ 135, 153, 337 
 
 Smith V. White '. §§ 431, 433 
 
 Snead v. Atkinson § 291 
 
 Southern R. Co. v. Carnegie 'Steel Co § 487 
 
 Sperry v. Sperry : § 417 
 
 Spindle v. Fletcher § 440^ 
 
 Spooner v. Hilbish § 337 
 
 Sproul V. Hunter §§ 294, 303 
 
 Staples V. Turner •§ 373 
 
 Stark V. Barrett § 385 
 
 State V. Cape May § 91 
 
 State Bank of Virginia v. Domestic Sewing Machine Co § 490 
 
 Statham v. Blackford § 358 
 
 Staunton v. Embrey § 333 
 
 Steckel V. Steckel § 403 
 
 Steinman v. Clinchfield Coal Corp §§ 134, 303 
 
 Stephenson v. Taverners § 459 
 
 Sterrett v. Second Nat. Bank §§ 481, 505, 509 
 
 Stevens v. Ducket § 274 
 
 Stewart v. Conrad § 258 
 
 Stockton V. Harmon § 476 
 
 IStortz v. Voss § 302 
 
 Story V. Livingstone § 274 
 
 Stout z'.'Philippi, etc., Co §§ 298, 305 
 
 Stovall V. Border Grange Bank § 440^ 
 
 Straughan v. Wright § 379 
 
 Straughan v. Hallwood §§ 162, 506 
 
 Strayer v. L,ong § 61 
 
 Stuart V. Coalter §§■ 33, 203 
 
 Stuart's Heirs v. Coalter § 379 
 
 Suckley v. Rotchford § 440^ 
 
 Sulphur Mines Co. v. Boswell § 168 
 
 Sutherland v. Gent § 183 
 
 Sutherland v. Peoples Bank § 65 
 
 Tabb V. Cabell § 242 
 
 Talley v. Stark § 298 
 
 Tate V. Leggatt §§ 440, iiOYi, 443 
 
 Tate V. Vance § 170 
 
 Taylor v. Canaday § 498 
 
 Taylor v. Cooper § 300 
 
 Taylor v. Cranberry Iron Co § 212 
 
 Tazewell v. Whittle § 458 
 
 Temple v. Glasgow § 479 
 
 Tenant v. Dunlop § 133 
 
Table op Cases 339 
 
 Terry v. Cole § 307 
 
 Texas, etc., R. Co. v. Johnson §§ 496, 497 
 
 Thacker v. Hubbard § 14 
 
 The Harrisburg § 312 
 
 The Liberty Bell § 91 
 
 Thomas v. Davidson § 398 
 
 Thomason v. Smithson § 133 
 
 Thompson v. Maxwell, etc., Co § 106 
 
 Thompson v. Phoenix Ins. Co § 489 
 
 Thompson v. Wooster § 73 
 
 Thomson v. Wooster § 381 
 
 Thornton v. Fairfax § 305 
 
 Thornton v. Gordon §§ 336, 338 
 
 Thum V. Andrews § 373 
 
 Tidewater Railway Co. v. Hurt § 306 
 
 Toledo, etc., R. Co. v Continental Trust Co § 343 
 
 Town V. Needham '. § 236 
 
 Towson V. Towson §§ 224, 402, 403 
 
 Traylor v: Atkinson § 303 
 
 Turner v. Fitt § 119 
 
 Tweedy v. Jones .'. § 119 
 
 Tyler v. Toms § 312 
 
 Umbarger v. ,Watts § 350 
 
 Union Bank v. Geary § 254 
 
 U. S. V. Moorhead § 184 
 
 U. S. V. Packers Ass'n § 388 
 
 U. S. V. Parker....; § 290 
 
 Vaiden v. Stubblefield § 103 
 
 Valz V. Coiner §§ 181, 182 
 
 Vaught V. Meadpr ^ § 45 
 
 Verplanck v. Mercantile Ins. Co § 477 
 
 Va. F. & M. Insurance Co. v. Crabtree § 300 
 
 Va. Iron Co. v. Bond § 303 
 
 Va. Pass. & Power Co. v. Fisher §§ 99, 441 
 
 Wabash, etc., R. Co. v. 'Brow..'. § 31 
 
 Wade V. Hancock § 30 
 
 Wadhams v. Gay..., § 333 
 
 Walker v. Burgess § 458 
 
 Walker v. Page § 386 
 
 Wallace v. Loomis § 513 
 
 Wallace v. Treakle § 451 
 
 Walton V. Marietta Chair Co § 119 
 
 Waterman v. iLawrence §§ 106, 439 
 
 Watkins v. Ford § 437 
 
 Watkins w. Jones §§ 399, 302 
 
 Watson V. Brunner §§ 162, 302 
 
340 TABI.E OF Cases 
 
 Watt V. Stark § 270 
 
 Weaver v. Gregg § 384 
 
 Welton V. Bogg § 458 
 
 Whalen v. Gordon g 16^ 
 
 Wheeler v. Thomas §§ 104, 431, 438 
 
 Whitaker v. Lane § 275 
 
 White V. Building Fund Association §§ 347, 350 
 
 Whitehead v. Bradley § 312 
 
 Whiting V. Bank of U. S .' § 181 
 
 Whitten v. Saunders p. 270 
 
 Whitten v. Saunders §§ 165, 183, 184, 198 
 
 Wilder v. Kelley § 364 
 
 Wilkes V. Rogers § 274 
 
 Wilkins v. Gordon § 464 
 
 Williams v. Blakey § 305 
 
 Williamson v. Berry §§ 18, 437 
 
 Williamson v. Paxton § 232 
 
 Wilmer v. Railway Co § 503 
 
 Wilson V. Seligman § 20 
 
 Wilson V. Shannon § 119 
 
 Wilson V. Smith '. § 177 
 
 Wilson V. Wilson § 155 
 
 Windsor v. McVeigh § 22 
 
 Winston v. 'Gordon § 520 
 
 Winston v. Midlothian, etc., Co ■. §§ 357, 358 
 
 Wohlford V. Compton § 290 
 
 Wood V. Walker p. 270 
 
 Wood V. Wood § 409 
 
 Woods V. Ellis § 479 
 
 Woodyard v. Polsley § 458 
 
 Woolfolk V. Graves § 134 
 
 Wirdy v. Jamison § 500 
 
 Wright V Johnson §§ 393, 395 
 
 Wright V. Wright §§ 251, 382 
 
 Wyatt V. Thompson §§ 343, 348 
 
 Wynne v. Newman § 372 
 
 Yates V. Yates §§ 16, 18, 29, 402, 403 
 
 Yazoo & Mississippi Valley R. Co. v. Clarksdale § 294 
 
 Yeager v. Wallace § 499 
 
 Yoder's Case § 317 
 
 Young V. Edwards § 386 
 
 Zetelle v. Myers § 333 
 
 Zirkle v. McCue §§ 380, 439 
 
iivde:;:?^ 
 
 [references are to sections.] 
 
 ABATEMENT — see Jurisdiction; Venue; Plea in Abatement. 
 
 ACCOUNT OF LIENS— see Creditors' Bills; Judicial Sales; 
 Order of Reference. 
 
 ADULTERY— see Divorce Suits. 
 
 AFFIDAVITS — see Forms; Testimony; Injunction Suits. 
 
 ALIMONY — see Divorce Suits. sections 
 Without divorce — under general equity jurisdiction 403n 
 
 AMENDED BILL. 
 
 In full 156-165 
 
 Amendments — freely allowed 159-161 
 
 Contrasted with supplemental bills 156 
 
 Defects inherent in original bill 157 
 
 Functions — two purposes 157-158 
 
 Leave to file 163 
 
 New case by — improper '. 162 
 
 Process on 164 
 
 Special replication — substituted by 158, 257-358 
 
 ANSWER. 
 
 In full 334-256 
 
 Allegations not answered 351 
 
 Amendment of 355 
 
 Belated — after bill pro confesso 74-76 
 
 Corporation defendant — authentication of answer 252-253 
 
 discovery from 354 
 
 Cross-bill — answer as ' 356 
 
 Demurrer — lies not to answer 342, 349 
 
 Discovery — bill of — answer to, as evidence 243-345 
 
 Evidentiary value of 236-345 
 
 to bill tof discove'ry ; 343-345 
 
 Exceptions to — when proper 346-248 
 
 Federal Equity Rule 340-3415^ 
 
 Filing— time limit i 74-76 
 
 Form of — see ^Appendix, p. 272. 
 
342 Index 
 
 ANSWER — continued. sections 
 
 Hearing on bill and answer 346, 248-249 
 
 Motion to strike out 248 
 
 Oath — essential by unwritten rule 238 
 
 waiver of, by statute 339 
 
 Sufficiency in form — non-responsiveness — exceptions 347-248 
 
 in law — how tested 246, 248-250 
 
 Supporting plea 228 
 
 Value, as evidence — ^unwritten rule ; 236 
 
 Waiver of oath — equity rule 238 
 
 by statute 238 
 
 — — waives right of discovery 239n 
 
 APPEALS. 
 
 In full 5,12-'520 
 
 'Appeal' — distinguished from 'writ of error' 513 
 
 Bill of exceptions — unknown in chancery practice i 520 
 
 Bond required 519 
 
 Pinal decree — appeal from 515 
 
 Interlocutory decree — when appeal permissible from 515 
 
 Methods of — petition 517 
 
 transcript of record 517-518 
 
 Prerequisites — stage of the cause 515 
 
 subject matter ; 514 
 
 Record — what constitutes, in a chancery suit 530 
 
 Terminology — 'appeal' — ^'judgment' — 'supersedeas' 513 
 
 Time limit '. 516 
 
 APPELLATE JURISDICTION. 
 
 Consolidation of causes — eflfect on 349-350 
 
 Prerequisites to, in IVirginia 514-515 
 
 APPENDIX. 1 
 
 I Sundry forms — see infra, 'Forms. 
 II Federal Equity iRules. 
 
 ASSISTANCE, WRIT OP. 
 
 Function of 316 
 
 ATTACHMENT, WRIT OP. 
 
 Function of -317 
 
 BILL — see Injunctions; Divorce; Creditors' -Suit; Sale of In- 
 fants' Lands; Partition. 
 
 In full 115-194 
 
 Affidavit to 141-142 
 
 Allegata and probata must Correspond 115 
 
Index 343 
 
 BILL^ — continued. sections 
 
 Allegations — facts, not legal conclusions 144 
 
 jurisdictional 136-137 
 
 Anticipating defense — advantages 124-125 
 
 Arguing case in the bill 145 
 
 Classification — for relief — not for relief 113-113 
 
 original — not original ; 110 
 
 Facts, not legal Conclusions, to be alleged 144 
 
 Form of — see Appendix, p. 268. 
 
 General characteristics ' 143 
 
 Initials — pleading by ' 118-121 
 
 Interrogatories 138-129 
 
 Jurisdictional allegations 126-137 
 
 Legal conclusions instead of facts, improper 133 
 
 Names of parties — pleading by initials 118-131 
 
 Original — praying relief — in 'detail 115-145 
 
 Parties to — see Parties. ! 
 
 defendant — prayer for 130 
 
 Parts— the several 116-138 
 
 Prayer — for alternative relief 133 
 
 — — for general relief 134-135 
 
 for general relief — alimony under 414n 
 
 for process 136-137 
 
 for special relief 131-133 
 
 Pro confesso — see Clerk's Office; 
 
 Perpetuation of testimony 147 
 
 Signature of counsel 139-140 
 
 Waiver of answer under oath .^ 338-241 
 
 BILL OF DISCOVERY— see Answer. ; 
 
 Affidavit to bill 154 
 
 Corporation — discovery from 151 
 
 Legal relief, for discovery and 154 
 
 Modern Idisuse 152 
 
 Pure bills of 149-152 
 
 Purpose of | 148 
 
 Waiver of oath waives discovery 339n 
 
 BILL OF EXCEPTIONS. 
 
 Issue out of chancery — in trial of 520n 
 
 Unknown in equity practice - 530 
 
 BILL OF REVIEW. 
 
 In full 178-194 
 
 Allegations — newly (discovered evidence 183-184 
 
 Federal court practice 193 
 
344 Index 
 
 BILL OF 'R'&'Vl'EW— continued. sections 
 
 Final decree necessary 186-190 
 
 necessity |of adjournment of term 381 
 
 -; — what is 186-190, 380-281 
 
 Grounds on which based — error of law 179-180 
 
 newly discovered evidence 181-184 
 
 Injunction as ancillary to 194 
 
 Leave jto file , 185 
 
 Process and procedure 193 
 
 Time limitation 191 
 
 BILL OF IREVIVOR. i 
 
 Function of 177 
 
 BONDS — see Injunctions; Judicial ^ales; Receivers. 
 
 CLERK'S O'FFICE. . i 
 
 Proceedings in — in full 68-77 
 
 Bill pro confesso — belated answer 74-76 
 
 in default [of appearance — effect 71-73 
 
 exceptions to general rule 77 
 
 — — setting aside 74 
 
 Default proceedings 71-76 
 
 Maturing the suit 68-70 
 
 COMMISSIONER IN CHANCERY— see Master in Chancery; 
 Judicial Sales; Creditors' 'Suits. ; 
 
 CONFLICT OF LAWS. 
 
 Foreign master — conveyance by 311 
 
 Foreign receivers — suit by and against 503-506 
 
 CONSOLIiDATION OF CAUSES. 
 
 In full 339-351 
 
 Appellate jurisdiction — effect on ' 349-350 
 
 Confusion in authorities 343 
 
 Consent of parties — when Mot essential 346 
 
 when essential 344, 348 
 
 Effect on the several causes 341 
 
 'Hearing together' — distinguished 340 
 
 effect on the several causes 343 
 
 Resume oi rules affecting power bf court to order 351 
 
 CONTEMPT. 
 
 Punishing in vacation 325 
 
 Rule to show cause — form — Appendix, p. 300. | 
 
 Writ of attachment for 317 
 
 CONTINGENT ESTATES— see Parties; Sale of Lands of 
 Persons under Disability. 
 
Index 345 
 
 CONTINUANCES. secTioNS 
 Federal court rule 32S 
 
 CORPORATIONS. | 
 
 Answer of — bill of discovery 253-354 
 
 COUNSEL. 
 
 Fee — in wife's suit (for divorce 404, 418 
 
 Signature to pleadings 139-140 
 
 Stipulations between 336-327 
 
 COURTS OF EQUITY JURISDICTION. 
 
 Federal , 3 
 
 State 2 
 
 CREDITORS' BILL— see Judicial Sales. ] , 
 
 In full 440-466 
 
 Account of liens — see infra, this title, Order of Reference. 
 
 when necessary 464-465 
 
 Distinctive feature 440-441 
 
 Dominion of suit — effect of order of reference 453 
 
 Equitable assets — subjection of 440-441 
 
 Fraudulent conveyances — general creditors may not assail — 
 
 Virginia statute 442-444 
 
 General creditors' bill 446 
 
 General creditors may not file 440-443 
 
 exceptions • 442-444 
 
 In rem proceeding | 440-442 
 
 Intervention by petition , 448 
 
 Order of reference — in full 449-456 
 
 advantages 461-463 
 
 effect in general 452-456 
 
 effect — converting suit into general creditors' suit 452 
 
 effect on dominion of suit 453 
 
 effect on other creditors' suits 454 
 
 effect on statute of limitations 455-456 
 
 form of — Appendix, p. 268. 
 
 practice ,.....'. 459 
 
 necessity of 464-465 
 
 priorities determined 450-451 
 
 purpose \ 460-463 
 
 Parties defendant 447-448 
 
 plaintiff ...* 445-446 
 
 how creditors become 448 
 
 Petition — intervention by 448 
 
 Priorities — how determined 449-451 
 
 Purpose of — subjection of equitable assets 440-441 
 
346 Index 
 
 CREDITORS' BILL — continued. sections 
 
 Several suits pending — practice 459 
 
 Statute of limitations — effect on, of order of reference 4-55-456 
 
 may competing creditor set up? 457-458 
 
 CROSS BILL. 
 
 In full 166-171 
 
 Answer treated as 170, 256 
 
 Dismissal of original bill — effect on 168 
 
 Form iof, Appendix, p. 275. 
 
 Function of 166 
 
 Leave to file 168^ 
 
 New matter — new parties 167 
 
 Parties plaintiff — parties defendant 166-167 
 
 Process and procedure 169 
 
 DECREES. 
 
 In full 277-293 
 
 Adjournment of term, essential to finality 280-281 
 
 'Dismissed agreed' — effect 290 
 
 Dismissal of cause — 'without prejudice' 289-290 
 
 on final decree 287 
 
 under 'five year rule' 291 
 
 Enforcement of 315-323 
 
 by execution — fieri facias 318 
 
 by order ]of sale 320 
 
 by original bill r. 321-323 
 
 performance by iproxy — master's deed 320a 
 
 by writ of assistance 316 
 
 by writ of attachment for contempt 317 
 
 by writ of sequestration |. 318 
 
 'Enrollment' of 186, 280 
 
 English ipractice 280 
 
 American practice 281 
 
 Errors in — correction 292 
 
 see Bill of Review: Petition to Rehear; 'Appeals. 
 
 Final — see Bill of Review. 
 
 adjournment of term necessary to ^ 186, 280-281 
 
 . essentials of 186, 190, 280-381 
 
 further relief necessary — procedure .-... 288 
 
 as to one party only 190 
 
 Forms of — Appendix, pp. 283, 1285, 296. 
 
 Infant defendants — grace to show Jcause, after majority.... 286, 439n 
 
 Interlocutory — in breast of court 197 
 
 Legal title — decree may not transfer \ 309 
 
 'Orders', contrasted with 'decrees' 277 
 
 Prepration of 278 
 
Index 347 
 
 B'EC'R.'EZS— continued. sections 
 
 Recitals — jurisdictional facts 40 
 
 of pleadings in 384 
 
 Federal Equity rule 385 
 
 Recordation of— 'enrollment' 279-381 
 
 on Sunday 379n 
 
 Rehearing — see Petition to Rehear. 
 
 infants after majority 386 
 
 parties summoned by publication 386n 
 
 Reservations in — continued jurisdiction after final decree 388ii 
 
 right to reinstate cause after final decree 388 
 
 Review for error — see Bill of Review. 
 
 Title — legal — decree may not transfer 309 
 
 DEFAULT tPROCEEDINCS— see Clerk's pffice. 
 
 DEMURRER. 
 
 In full 303-216 
 
 Allegations admitted by 303 
 
 Answer — not subject to 343, 349 
 
 Federal courts — demurrer abolished 315 
 
 Function of 303 
 
 Illustrations 307-309 
 
 Jurisdictional questions raised by 16, 310 
 
 Multifariousness in bill 338 
 
 Objections taken by 307 
 
 Omission of — effect 303-304 
 
 Pleadings subject to 305 
 
 Statute of frauds, raised by 213-314 
 
 Statute of limitations, not raised by 311-312 
 
 Sustained — effect 306 
 
 DEPOSITIONS— see Testimony. 
 
 Affidavits, contrasted with 263 
 
 DISCLAIMER. I 
 
 Function of 408, 3 (4) 
 
 DISCOVERY — see Bills of Discovery; Answers. 
 
 Corporation defendant 353-354 
 
 DISMISSAL lOF CAUSE. 
 
 'Dismissed agreed' — effect 290 
 
 Final .decree — dismissal from docket 387 
 
 'Five year rule' — order of dismissal under 391 
 
 Plaintiff's control of cause 389 
 
 Reservation of right to re-instate on docket 388 
 
 'Without prejudice' 389-390 
 
348 Index 
 
 DIVORCE SUITS. sections 
 
 In full 399-419 
 
 Admission pi parties — case heard independently of 405 
 
 Adultery — how charged 409 
 
 Alimony — final decree for — subsequent alteration 415-417 
 
 permanent J 414-4(17 
 
 temporary — suit money 409 
 
 under prayer for general relief 414n 
 
 without divorce 403n 
 
 Answer' in — ^governed by general equity rule ".. 410 
 
 Attorney's 'fees — husband liable for wife's 404, 418 
 
 Bill — essential allegations 408 
 
 marriage license — copy to be filed with 408 (6) 
 
 Bill — pro confesso — ^not taken ^405 
 
 Children — decree ^awarding custody and maintenance of 414 
 
 Costs — rule governing 418 
 
 Decree — concerning /estate and maintenance of parties » 414 
 
 final — reservation of jurisdiction to alter 417 (4) 
 
 modification of, after final decree 415-417 
 
 Depositions — notice of taking, unnecessary, in case matured 
 
 by publication 413, 
 
 ore tenus, by order tof court 412 
 
 Domicil — essential to jurisdiction 403 
 
 not synonymous with residence 403n 
 
 wife may acquire separate 404n 
 
 Estate of parties — decree 414 
 
 Jurisdiction — bill must ^how on its face 403 
 
 courts exercising, in Virginia 400-401 
 
 domicil of one party essential 403 
 
 essentials of 403-403 
 
 statutory 399-403 
 
 venue — error in, fatal 402 
 
 Non-resident defendant — how summoned |. 406-407 
 
 when notice to take depositions unnecessary 413 
 
 Order of publication — in 'general 43-44, 406-407 
 
 depositions — notice not required 413 
 
 how issued and published 43-44, 407 
 
 required contents 407 
 
 extent of jurisdiction acquired %y 43-44, 406 
 
 Pleadings after bill filed |. 410 
 
 Procedure — conforms to other equity suits — exceptions 405 
 
 Process — service of 405 
 
 Suit money to wife 404 
 
 Testimony — ore tenus by order of court 413 
 
 parties as witnesses !. 411 
 
 of parties — corroboration necessary 405-411 
 
 how taken — in general 413 
 
Indbx 349 
 
 DIVORCE 'SUITS— continued. secTiONS 
 
 Vacation — orders in, for protection of wife and children 404 
 
 orders in, for suit money to wife | 404 
 
 Venue — in Virginia 401 
 
 error in, fatal 403 
 
 ^jurisdictional 403 
 
 of suits |for lalimony without divorce 403n 
 
 defendant a resident 401 (1) 
 
 defendant a non-resident 401 (2) 
 
 Witnesses — husband and wife as 411 
 
 DOMICIL. ' 
 
 Divorce suit — domicil essential in 403 
 
 Residence — contrasted with 403n 
 
 Wife may acquire separate 404n 
 
 DOMINUS LITIS. ' 
 
 Plaintiflf, as 389 
 
 ELECTION 
 
 Between pending suits 231-233 
 
 ENFORCEMENT OF DECREES— see Decrees. \ 
 
 ENROLLMENT— see Decrees. ' I 
 
 EQUITY COURTS. 
 
 Federal courts of equity 2 
 
 Functions of, contrasted 'with courts of law 81-84 
 
 Jurisdiction — throughout the state 11 
 
 Virginia statutes conferring , 11 
 
 Officers of 8-9 
 
 Parties need not be. joint in interest or liability 81 
 
 Suits not necessarily bilateral only 83 
 
 Transfer to law court, and vice versa 34 
 
 Virginia courts of equity ! 3 
 
 EQUITY PLEADING. 
 
 Federal system — Equity Rules 6-7 
 
 Equity Rules, in full — Appendix II. 
 
 Virginia system .•. ,5 
 
 EVIDENCE — see Testimony. 
 
 EXCEPTIONS — see 'Answer; Master in Chancery; Testimony. 
 
 Bill of — unknown in (Equity 530 
 
 on trial of issue out of chancery 530n 
 
 EXECUTIONS. 
 
 Fieri facias 319 
 
 FEDERAL EQUITY RULES— see Appendix 11. 
 FIERI FACIAS. I 
 
 For enforcing payment of decree for money 319 
 
350 Indbx 
 
 FORMS. [references are to pages.]. pages 
 
 Affidavit — Virginia form 298 
 
 usual form 299 
 
 Answer to bill 272 
 
 Answer — to cross-bill 279 
 
 Bill — in suit for specific performance 268 
 
 Commissioner — see infra, this title, Master. 
 
 Cross-bill 275 
 
 Decree — sustaining exceptions to master's report 285 
 
 see infra, this title, Order. 
 
 with order of reference 283 
 
 Demurrer to bill 271 
 
 to cross-bill 278 
 
 Deposition — form of 280 
 
 Exceptions — to master's report 285 
 
 General replication 275 
 
 Infants — see Suit for Sale of Infants' Lands, infra, this title. 
 
 Injunction — preliminary order of 299 
 
 Lunatics — see infra, ithis title, 'Suit for Sale of Infants' Lands. 
 
 Master's deed .■ 297 
 
 Master — report of — exceptions ,to 285 
 
 report of, form 284 
 
 Memorandum or praecipe 267 
 
 Order — see supra, this title, Decree. 
 
 disallowing plea 273 
 
 overruling demurrer 271, 278 
 
 Order of reference — in general creditors' suit 296 
 
 Plea — statute of limitations 272 
 
 Rule to show cause — on contempt charge 300 
 
 on petition filed , 300 
 
 Suit for sale of infants' lands — sundry forms 288-296 
 
 the bill 288 
 
 answer of infants by guardian ad litem 292 
 
 answer of infant over fourteen 293 
 
 answer of guardian ad litem in person 294 
 
 decree of sale 295 
 
 Subpoena 267 
 
Index 351 
 
 FRAUDULENT CONVEYANCES— see Creditors' Bills. 
 
 GENERAL RELIEF. 
 
 Prayer for — see Bill. )- 
 
 GUARDIAN AD LITEM— see Infants. 
 
 'HEARING TOGETHER— see Consolidation 
 
 INFANTS — see Sale of Lands of Persons under Disability. 
 
 Decrees affecting — grace to show cause against, after sections 
 
 Majority .-.. 286, 439n 
 
 Defendant— bill not taken pro confesso 77 
 
 — — defense by guardian ad litem 106 
 
 Depositions in suits to which infants are parties 273 
 
 Guardian ad \litem — powers and ^duties 106n 
 
 Guardians of — suit by 105 
 
 Next friend — appointment and powers 104n 
 
 suit by 104 
 
 Partition — proceeds — disposition of 397-398 
 
 Plaintiff — suit by next friend 104 
 
 Process against — service 59-61 
 
 Prochein ami — see ',supra, this 'title, Next Priend. 
 
 Suits against — guardian ad litem 106 
 
 by guardian 105 
 
 by next friend 104 
 
 INITIALS. 
 
 Pleading by, improper I. 118-121 
 
 INJUNCTIONS. 
 
 In full 355-374 
 
 Affidavit— to bill 362 
 
 on motion to dissolve 373 
 
 Dissolution of — on preliminary Imotion — effect on suit 374 
 
 — -—at final hearing — effect on suit 374 
 
 motion for — use of affidavits 373 
 
 Judgments — on false return of process 65-67 
 
 Judgments — enjoining, on ground of discovery of new evi- 
 dence 372n 
 
 Judicial proceeding — venue ^of injunction 'against 356-358 
 
 Jurisdiction — to hear and determine suit 356-358 
 
 temporary — in vacation 363 
 
 temporary — awarded by judge of any chancery court 363 
 
 by appellate court judge 364 
 
 Legal proceedings — injunction against — practice 369-372 
 
 enjoining — requiring confession of judgment 369-372 
 
 Motion to 'dissolve — ^^heard on bill and answer only — answer 
 
352 Indbx 
 
 INJUNCTIONS — continued. sections 
 
 conclusive 373n 
 
 use of affidavits 373 
 
 in vacation 373 
 
 New trial — enjoining judgment at law, on discovery of new 
 
 evidence 373n 
 
 Notice of application for 360-361 
 
 Order — form of, 'Appendix, p. 299. 
 
 preparation of 366 
 
 Restraining orders 359 
 
 Temporary — bill for — how addressed 365 
 
 bond required 367 
 
 ^jurisdiction of appellate court judges 364 
 
 jurisdiction to award 363-364 
 
 notice of application 360-361 
 
 service of 368 
 
 • in vacation 325 
 
 Venue 356-358 
 
 injunction ancillary 357 
 
 ^jurisdictional, or not? 356-358 
 
 pure bills 358 
 
 INSANE iPERSONS— see Sale of Lands of ^Persons Under Dis- 
 ability. I 
 
 Committee — suit by 104-105 
 
 Defendant — defense by guardian ad litem 106 
 
 bill not taken 'pro confesso 77 
 
 Plaintiff — suits by next friend — committee 104-105 
 
 Process against — service 59-61 
 
 INTERVENTION. 
 
 By petition 172-176 
 
 ISSUE OUT OF CHANCERY. 
 
 In full 374-276 
 
 Appellate court — right to direct .-. 275 
 
 Before testimony taker — 'Virginia statute ; 274 
 
 Bill 'of exceptions on trial of 520n 
 
 Function of 274 
 
 Procedure 274 
 
 Trial of 274 
 
 Verdict — effect 276 
 
 Waiver by parties 275 
 
Index 35.3 
 
 JUDICIAL SALES — see Sates of Lands of Persons under Disa- 
 bility; Ceditors' Suits. sections 
 
 In full 294-.01J 
 
 Bidder — bound before confirmation 298 
 
 Bond — required of special commissioner 295 
 
 By whom made 295 
 
 Caveat emptor 303 
 
 Confirmation of report of sale 299-302 
 
 appreciation or depreciation in value before 300-302 
 
 effect 299 
 
 policy of court, in accepting or rejecting bids 302 
 
 Court as vendor — not bound until confirmation 298 
 
 Default of purchaser — procedure 305-306 
 
 Deferred payments — how secured 296 
 
 Depreciation before confirmation of report 300 
 
 Fieri facias^— sa.\es under, not judicial 294 
 
 'Judicial' sale — what is 394 
 
 Loss of funds in hands of court 313 
 
 Master's conveyance of title 308-311 
 
 Virginia statute ! 310n 
 
 Opening the biddings — upset bids 302 
 
 Order of reference 449-456 
 
 Payment to disqualified master ' 312 
 
 Private sales confirmed — when judicial 294 
 
 Public auction — usual but not essential 297 
 
 Purchase money — collection of 304 
 
 Purchaser's right of possession 307 
 
 risk begins on confirmation 307 
 
 Re-sale by bidder before confirmation 301 
 
 Reversal of decree — effect on purchaser's rights 314 
 
 Special master to sell — bond required 295 
 
 Terms of sale 396 
 
 Title — caveat emptor 303 
 
 objection to — must be made before confirmation 303 
 
 how made to purchaser 308-311 
 
 Upset bids 302 
 
 What are 294 
 
 JUDGMENTS— see 'Decrees; Judicial Sales. 
 
 Confession of — as condition of enjoining action at law 369-372 
 
 Injunction against — on ground of newly discovered evidence.... 372n 
 
 for false return of process 65-67 
 
 Jurisdiction — essential to validity of 13-18 
 
354 Index 
 
 JURISDICTION. SECTIONS 
 
 In full - 10-46 
 
 Active — generally 12, 19-20, 30-31 
 
 waiver of objection to 30-31 
 
 Allegations of — general jurisdiction 17 
 
 special and limited jurisdiction 18 
 
 Consent — not conferred by 14, 15, 19 
 
 Demurrer for defect of 16, 210 
 
 Equity — state and Federal 4 
 
 Equity courts — jurisdiction co-extensive with state lines 11 
 
 Error in — as between law and equity court 33 
 
 transfer 34 
 
 Errors not jurisdictional 21 
 
 ^'jurisdictional errors' 23, 28 
 
 Exceptions to, active 30 
 
 ^potential — how made 16, 29 
 
 Exterritorial 45-46 
 
 Federal Equity courts 3 
 
 In personam — essentials of 41 
 
 In rem 42-44 
 
 effect of order of publication...., 43-44, 407 
 
 Limited — special allegations essential 18 
 
 Objections to — potential — plea unnecessary 15-18, 29-32 
 
 active — plea generally unnecessary 30 
 
 Plea in abatement — not necessary except as to venue 29-32 
 
 Plea to — general jurisdiction 14-15, 29-32 
 
 — : — special jurisdiction IS 
 
 Potential, generally 11, a3-il8 
 
 objections may not be waived 13-15 
 
 Presumption of 35-39 
 
 Recital of, in decree 40 
 
 Special appearance 30-31 
 
 Special and limited — allegations of 18 
 
 Test of 16 
 
 Transfer from equity court to law court 33 
 
 Various uses of term 31n 
 
 Venue contrasted with 23-32 
 
 Waiver — potential not conferred by 14-13 
 
 active, Imay be conferred by 19 
 
 LEGAL PROCEEDINGS. 
 
 Injunctions against 369-372 
 
 LIENS — see Creditor's Bill; Order of Reference. 
 LIMITATIONS— see Statute of Limitations. 
 LUNATICS — see Insane Persons; Infants. 
 
Index 355 
 
 MASTER IN CHANCERY— see Judicial Sales. siicTioNS 
 
 Conveyances by master 308-311 
 
 form — see Appendix, p. 297. 
 
 by foreign master 311 
 
 Notice to parties of taking account 272 
 
 Report — confirmation 273, 276 
 
 form of, Appendix, p. 284. 
 
 exceptions to 273 
 
 lying for exceptions 273 
 
 notice to parties 272 
 
 weight to which entitled 275 
 
 MATURING SUIT— see Clerk's Office. 
 
 :MEM0RANDUM— see Process. 
 
 MISNAMING OF PLEADINGS. 
 
 Eflect of 165, 198 
 
 MULTIFARIOUSNESS. 
 
 In full 329-338 
 
 Definition of 329 
 
 Difficulty of applying specific rules 337 
 
 Discretion of court 337 
 
 Joinder of valid with invalid causes of action 336 
 
 Objections to — how raised 338 
 
 Policy of courts of equity 330 
 
 Several classes 331 
 
 first class 332-333 
 
 second class 334 
 
 third class 335 
 
 NAMES. 
 
 In pleading — initials improper 115 
 
 Of pleadings — misnaming pleading immaterial 165, 198 
 
 NEW TRIAL AT LAW. 
 
 Injunction to judgment, on discovery of new evidence 3T2n 
 
 NEXT FRIEND— see Iniants. 
 
 NULLITY SUITS— see Divorce 'Suits. 
 
 ORDER OF PUBLICATION. 
 
 Against non-residents — effect 43-44 
 
 In creditors' suits '. 272 
 
 In divorce proceedings 406-407 
 
 ORDER OF REFERENCE— see Master in Chancery: Creditors' 
 
 Suits; Forms. 
 
356 Index 
 
 PARTIES — see Sales of Lands of Persons under Disability; 
 
 Suits for Partition. sections 
 
 In full 78-106 
 
 Contingent interests — representation of parties 95-99 
 
 Contrasted with rule of parties at law 81-83 
 
 Defect of parties — how objection made 101-102 
 
 Defendant 86-88 
 
 Federal rule as to parties 89 
 
 Illustrations 86 
 
 Infants and lunatics — defendants — guardian ad litem 106 
 
 plaintiffs — suits by next friend '. 104-105 
 
 Multiplicity of parties — rules to avoid 91-99 
 
 'Necessary' parties 87 
 
 Plaintiff 89-90 
 
 real party in interest may alone sue 90 
 
 'Proper' parties 88-89 
 
 Representation — parties by — as defendants .' 92-99 
 
 as plaintiffs 91 
 
 Rule as to parties in equity 85 
 
 reasons for 80-84 
 
 Several characters — suing or being sued in 100 
 
 Trustee as representative of beneficiaries '. 99 
 
 Unborn persons 95-99 
 
 Unknown parties 94-99 
 
 Virtual representation 91-99 
 
 Waiver of objection to 103 
 
 PARTITION SUITS. 
 
 In full 375-398 
 
 Alienees of co-tenant — undivided interest 385 
 
 in severalty 385-386 
 
 Combining partition with other relief 387 
 
 Commissioners of partition — procedure 391 
 
 Cross bill — asserting right by, on bill for dower 380n 
 
 Ejectment — may not be substituted by partition suit 388 
 
 Equitable jurisdiction 375, 379 
 
 Guardian as plaintiff 384 
 
 Improvement by one co-tenant 385-386 
 
 Infants' portion of proceeds of sale — disposition of 377-398 
 
 Jurisdiction — in iwhat courts 377-379 
 
 partially statutory 379, 396 
 
 Kind — partition in — procedure 389-395 
 
 Legal title — ^jurisdiction of questions of 388 
 
 Lessee's rights protected 385-386 
 
 Lien creditors — as plaintiffs 380 
 
 as defendants 382-383, 385 
 
 Life tenant as plaintiff 380 
 
Index 357 
 
 PARTITION SUITS— continued. sections 
 
 Owelty tof partition 392 
 
 Parties defendant liSl-SSS 
 
 alienees of co-tenant 385 
 
 consort of co-tenant 384 
 
 co-tenants 381 
 
 lien creditors 382-;jS3 
 
 Parties plaintiff 380 
 
 co-tenant 380 
 
 guardian 380 
 
 lien creditor 380 
 
 life tenant 380 
 
 Sale — partition by 396-398 
 
 conversion into personalty 398 
 
 statutory right 378-379, 396 
 
 proceeds belonging ;to infants and lunatics 397-398 
 
 disposition of proceeds 397-398 
 
 ^statutory jurisdiction 397-398 
 
 when decreed 396 
 
 Title — allegations of — formal deraignment not necessary ' 388n 
 
 Title — asserting hostile, not derived from common source .... 380n 
 
 legal, adjudicating questions of 388 
 
 in severalty — how made in partition proceedings.... 309, 393-395 
 
 Venue of suit 377 
 
 Venue — jurisdictional 378-379 
 
 PENDING SUIT. 
 
 Plea of 231-333 
 
 PERPETUATION OF TESTIMONY. 
 
 Bill for 147 
 
 PETITION. 
 
 Intervention by 173 
 
 Leave to file 174 
 
 Plaintiff in : 173 
 
 Process on — rule to show cause 175 
 
 PETITION TO REHEAR. 
 
 In full 195-301 
 
 Contrasted with bill of review 196 
 
 Federal court rule 301 
 
 Frame of petition 200 
 
 Interlocutory decree only reheard 197 
 
 Misnamed as bill of review or vice versa 198 
 
 Time limit 196-197, 199 
 
358 Index 
 
 plea. sections 
 
 In full 217-233 
 
 Allowance of — effect , 222 
 
 Another suit pending — plea of 231-233 
 
 in same state 231-233 
 
 in foreign state 233 
 
 at law , 232 
 
 in equity 233 
 
 Disallowance of — eflfect 221 
 
 order of — form Appendix, p. 372. 
 
 Discovery — avoidance of, by plea 239n 
 
 Duplicity in 218 
 
 Federal courts — plea abolished 230 
 
 Form of — see Appendix, p. 278. 
 
 Function of 217 
 
 Insufficient in law — disallowed — result 231 
 
 Issue of fact on — found for plaintiff 226-227 
 
 found for klefendant — answering over ■2:?,5-227 
 
 jury trial 224 
 
 Optional to plead or answer 229 
 
 Setting down for argument 219 
 
 Sufficient in law, held— effect 222-223 
 
 how tested 219 
 
 Supported by answer 228 
 
 Several pleas — duplicity ...., 218 
 
 PLEA IN ABATEMENT— see Pica to Jurisdiction. 
 
 Defect in return of process 30n 
 
 Error in venue 29, 50 
 
 To jurisdiction — potential 15, 29 
 
 PLEA TO JURISDICTION. 
 
 Active jurisdiction 20 
 
 Potential jurisdiction 15, 29 
 
 Special and limited jurisdiction 18, 29n 
 
 Venue, plea to — distinguished 39, 32 
 
 PLEADING IN EQUITY. 
 
 Error in naming — immaterial ' 16.5 
 
 Federal Equity 'Rules — Appendix II, p. 300 et scq. 
 
 Initials — improper in 119-121 
 
 Outline of pleadings 107-108 
 
 PROCESS. 
 
 In full 53-67 
 
 Form of , 63 
 
 Infant or insane defendants — service on 59-61 
 
Index 359 
 
 PROCESS — continued. sections 
 
 Injunction suits, process in 54 
 
 Issue of 53 
 
 Memorandum or praecipe 56 
 
 Return — defective 30n 
 
 false — injunction to judgment 65-66 
 
 Returnable, when and .where 58 
 
 Service — sheriff's return 64 
 
 conclusiveness 65-66 
 
 by whom 57 
 
 Variance between writ and bill 63 
 
 Writ-tax in Virginia 62 
 
 PROCHEIN AMI— see Infants. 
 
 RECEIVER. 
 
 In full 467-509 
 
 Ancillary — practice 510 
 
 Appointment — appeal from 480n 
 
 circumstances justifying 469-473 
 
 effect on title to res 480-481 
 
 general creditor not entitled to 469-472 
 
 notice of application 476-477 
 
 purpose of ; 468 
 
 putting 'plaintiff on terms — Fosdick v. Schall 485-486 
 
 in vacation 475 
 
 Assignee — receiver as 508 
 
 Assignment to — order directing : 503, 505n 
 
 Bond of 478 
 
 Certificates — circumstances justifying issue of 511-512 
 
 Conflict of laws — foreign receivers 503-507 
 
 Conflicting receiverships — priority 502 
 
 Creditors — general — not entitled to 469-472 
 
 in rem — may |apply for 469-473 
 
 Descriptio personae — in court of law 491n, 493n, 499, 508n 
 
 Duties — active — passive 468 
 
 Foreign 503-510 
 
 holding title as assignee 508 
 
 right to sue depends on title 507-509 
 
 suits by 505-509 
 
 with title, , as assignee or by statute 507-509 
 
 Fosdick V. Schall — doctrine of 485-487 
 
 General creditor — application for receivership 472 
 
 Illustrations of cases proper for 484 
 
 Interference with receiver's possession — contempt 483 
 
 Judgment against — enforcement 493-496 
 
 personal, in court of law ,')00-501 
 
360 Index 
 
 RECEIVER — continued. sections 
 
 Leave to sue 483, 498-503 
 
 Leave to be sued 491-497 
 
 Loss of funds in custodia legis 313 
 
 Nature of office 467 
 
 Notice of application for : 476-477 
 
 Possession — interference with receiver's 483 
 
 secured by writ of assistance 316 
 
 Possessory title 501, 5U9 
 
 Powers and duties '. 488-490 
 
 Railroad receiverships — doctrine of Fosdick i>. Schall 485-487 
 
 receivers certificates 511-512 
 
 'Receiver' — in court of law descriptio personae 493n, 499 
 
 Statutory leave to sue 495-497 
 
 Statutory receivers — powers in foreign state 509 
 
 Suits against 491-497 
 
 how claims against debtor asserted 492 
 
 how claims against receiver asserted 493-496 
 
 leave of court necessary 491 
 
 statutory leave to sue 495-497 
 
 Suits by 498-509 
 
 In whose name 499-501 
 
 claims arising under the receivership 501 
 
 on claims arising before receivership 499-500 
 
 in court of law — difficulty as to legal title 481, 409 
 
 leave of court necessary 491, 49S 
 
 Title of receiver — in general 481, 499 
 
 Title of — as assignee 503, 508 
 
 chancery receiver 499 
 
 to claims arising under receivership 501 
 
 possessory, iof receiver 501, 509 
 
 statutory receiver, or assignee 500, 507-509 
 
 RECORD. 
 
 What constitutes, in chancery suit 520 
 
 REPLICATION. 
 
 In full 257-262 
 
 Amended bill — as substitute for special 258 
 
 Clerk's duty to file, under Virginia statute 261 
 
 Federal court rule ■ 263 
 
 Function of, in equity pleading 259-260 
 
 General — excludes matters of confession and avoidance 258 
 
 Omission of ...: 259-260 
 
 Special — substituted by amended bill 257-358 
 
 Virginia practice 261 
 
Index 361 
 
 REPRESENTATION OF PARTIES— see Parties. skcti|ons 
 
 RETURN— see Process. 
 
 SALE lOF LANDS OF PERSONS UNDER DISABILITY. 
 
 In full 430-439 
 
 Admissions — cause heard independently of 431 
 
 Affidavit — not testimony in cause 431n 
 
 to anwers of infants and guardian ad litem 430 
 
 to bill — required 437 
 
 ^to bill and answers — reasons for requiring 430n 
 
 Allegations of bill — essential ' 437 
 
 why details required 437n 
 
 Answers — form of the sevaral — Appendix, ,'pp. 293-394. 
 
 admissions in, not testimony 431 
 
 of infant by guardian ad litem 430 
 
 ^of guardian ad litem in proper person 430 
 
 of infant over fourteen in person 430 
 
 when not required 430n 
 
 in infant's name, by guardian adlitem, not vice versa.... 106, 430n 
 
 not evidence in the pause 430ti 
 
 oath not subject to waiver 430n 
 
 Beneficiary of trust — proper plaintiff 436 
 
 Bill — affidavit required 428 
 
 form of, Appendi.x, p. 288. 
 
 essentials of 437, 437 
 
 Collateral attack on proceedings 437 
 
 Committee of lunatic — proper plaintiff 436 
 
 Contingent estates — sale of 433n 
 
 Curative statute 433n 
 
 Curtesy of husband of insane wife — conveyance of 433n 
 
 Decree — collateral attack on 431n, 439n 
 
 conditions precedent to 431 
 
 form of, Appendi.x-, p. 395. 
 
 infant showing cause against, after majority 386, 438-439 
 
 should recite all essential istatutory requirements 433n 
 
 Depositions — in presence of guardian ad litem 431 
 
 Dower of wife of infant or lunatic — wife uniting to transfer .. 433n 
 
 Equitable jurisdiction — statutory 430, 437-438 
 
 Estate subject to sale — every character of 432 
 
 limited estate 423 
 
 Errors in procedure — when jurisdictional 437-438 
 
 Guardian ad litem — see supra, this title. Answers. 
 
 answer in proper person — reasons for 430n 
 
 appointment 429 
 
 powers 429n 
 
 Guardian — proper plaintiff 436 
 
362 Index 
 
 SALE OF LANDS OF PERSONS UNDER DISABILITY sections 
 
 Homestead — infant's — sale of 423n 
 
 Husband of insane wife — uniting to convey curtesy 423n 
 
 Incumbrance — for betterment purpose 431, 435 
 
 original corpus superior to ...» 435n 
 
 Infants — see Forms. 
 
 answer by guardian ad litem 430 
 
 of infant over fourteen 430 
 
 Insane persons — see Infants, supra, this title. 
 
 Interpretation of statute — when liberal — when strict 436-437 
 
 Jurisdiction — general equitable, of trust estates of incom- 
 petents 430 
 
 — —statutory 430, 437-438 
 
 special and limited — strict compliance 430, 437-438 
 
 Limited estate in infant — absolute estate sold 433 
 
 Lunatics — see Infants, supra, this title. 
 
 Master — reference to for report on the facts 432n 
 
 Parties — defendant — necessary 427 
 
 plaintiff 427 
 
 Plaintiff— proper 436-427 
 
 Procedure — outline of 434-435 
 
 Proceeds of sale — disposition of 434-435 
 
 Purchaser — duty to verity regularity of proceedings 438 
 
 Purposes of sale — maintenance 421 
 
 reinvestment 421 
 
 Sale — plaintiff prohibited from purchasing at 433 
 
 privately made, may be confirmed 433n 
 
 — — proceeds — disposition of 434 
 
 when under $500 435 
 
 — — regarded as real estate 435n 
 
 Sale — for reinvestment 421 
 
 for maintenance 421 
 
 proceeds— not paid over to guardian 434 
 
 Testimony — depositions in presence of guardian ad litem 431 
 
 facts may be referred to master for report 432n 
 
 Title — of bona fide purchaser 438 
 
 Trustee — proper plaintiff 426 
 
 Trust estates — subject to general equity jurisdiction 437 
 
 Venue of suit 425 
 
 ^jurisdictional 18, 437 
 
 Waiver — rights of infant not subject to 438n 
 
 Wife of infant or insane husband — conveying dower right .... 423n 
 
 SEQUESTRATION, WRIT OF. 
 
 Function 318 
 
 SHERIFF'S RETURN— see Process. 
 
Index 363 
 
 SPECIFIC PERFORMANCE. 
 
 Forms in suit for — see Appendix I, p. 367, et seq. 
 
 STATUTE OF LIMITATIONS. sections 
 
 Competing creditor's right to plead 457-458 
 
 Demurrer not proper method of raising 211-312 
 
 when proper 312 
 
 Order of reference — effect of, on 455 
 
 Plea of — form. Appendix I, p. 372. 
 
 STIPULATIONS. 
 
 Enforcement by court 327 
 
 Form of 327 
 
 Nature and purpose 326 
 
 SUPPLEMENTAL BILLS. 
 
 Purpose of 155 
 
 TESTIMONY IN CHANCERY SUITS. 
 
 In full 263-273 
 
 Affidavits — form of, Appendix, pp. 392, 398-299 
 
 uses of 264 
 
 contrasted with despositions 263-266 
 
 Depositions — how taken — notice 266-367 
 
 in case of infant or insane defendants 373 
 
 notice unnecessary to parties summoned by publica- 
 tion ; 267, 413 
 
 in Federal courts — time for taking 272 
 
 in Virginia — earUest period for taking 270 
 
 in Virginia — latest period for taking 271 
 
 ^uses of 265 
 
 exceptions to 269 
 
 rules of evidence — in equity 268 
 
 Ore tonus, in Federal Courts 272 
 
 in divorce suit in Virginia 412 
 
 TITLE. 
 
 Legal — decree may not pass 309 
 
 VACATION PROCEEDINGS. 
 
 Contempts, punishing in 325 
 
 Decrees— entering in 335 
 
 Federal Equity Rule 32.5 
 
 Hearing of chancery causes 32.5 
 
 Injunctions — granting and dissolving 335 
 
 Receivers — appointment and discharge of 325 
 
 Virginia statute 325 
 
364 Index 
 
 VENUE — see Partition Suits; Injunction Suits; Divorce 
 
 Suits; Sales of. Infants' Lands. sections 
 
 In full 1 18-29, 47-51 
 
 Chancery suits in iVirginia 48-50 
 
 Contrasted with jurisdiction 23-32 
 
 Error in, not jurisdictional 23-28 
 
 when jurisdictional 18. 28 
 
 plea in abatement , 23-29, 50 
 
 Exceptions to — plea in abatement 50 
 
 Federal courts 51 
 
 Jurisdiction and, contrasted 23-32 
 
 Plea in abatement for error in 23-29, 50 
 
 Statutory provisions cumulative 49 
 
 VIRTUAL REPRESENTATION— see Parties. 
 
 VOLUNTARY SOCIETIES. 
 
 Suits against — parties 92-93 
 
 Suits by 91 
 
 WRITS— see Process. 
 
 Writ of assistance 316 
 
 attachment 317 
 
 execution 319 
 
 ■ sequestration 318 
 
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