Tririnr^T > ..FV 2931 . A 3 6 9 : 365 188 W-^ ■^m i'R n p. ^. r^. aW^( ■ &' ^^^^m^M^ rAAA lAl iiatfiljaU Squttg CUnllerttott (gift of E. 31. MntBl^all, SI.ffi. 1. 1094 3 1924 085 501 702 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/cu31924085501702 COMMtSSIONERS IN CHANCERY IN VIRGINIA; CQMPEISING A DIGEST OF THE STATUTE LAW GOVERNING COMMISSIONERS, UNDER THE CODE OF VIRGINIA, 1887, "Which Went into EFrECT May 1, 1888, EXPLANATOEY COMMENTS AND REFERENCES, FORMS AND TABLES. A. .MEADE SMITH, Or THE Norfolk Bar. RICHMOND : West, Johnsion & Co., Publishers. 1888. COPYEIGHT BY West, Johnston & Co. 1888. Printed by Whittet h Sheppbkson, BlOHMOND, Va. This publication was dfesigned primcipallj' for the use and information of Comnaissioners in Chancery, hut it is be- lisYed that it will be found a convenience to the profession generally, and, with that purpose in view, particular atten- tion has been given to the Table of Contents as well as to the Index. CONTENTS. Introduction, . . ... .9 PART I. Title I. Appointment and removal of Commiusioners in Chancery, and their oath of office,' .... 11 Title II. Of Eeports on Reference, . . . . .13 A. On reference in suits, in respect to — (a.) Notice, 13 (6.) Mode of examination or enquiry, ... 18 (c.) Subject matter 19 (d.) Report and its incidents, . . . 19 B. On reference ex parte, in respect to the same mat- ters, and also as to Treasurer's bond, Petition to sell estate of an insane person. Accounts and Bonds of Fiduciaries, and Accounts and Bonds of Receivers etc., .22 Title III. Of Notice, in respect to persons entitled, time allowed, direction, delivery, service as to Residents and Non-Residents, and by publication, and on Counsel for Depositions, and in case of Corporations, etc., and when returnable, .32 Title TV. Of evidence and the examination of witnesses, matters taken for granted, estoppels, admissions, bur- den of proof, relevancy, etc., admissibility, competency of witnesses, production of witnesses, etc., examination, direct and cross, 35 6 CONTENTS. Title V. Of Summons, and compelling attendance, etc., direction and mode of service, persons to be served, report of failure to attend, interrogatories to parties, production of documents, etc., 42 Title VI. Of Oaths, depositions, etc. — Oath of office, attes- tation, affidavits, certificate, depositions, oath to wit- ness, caption, form, certificate and return, witness' at- tendance, entry of fee on oath, etc., perpetuating testi- mony, ... 54 TiTLH VII. Of commutation of annuities and of dower, etc., 60 Title VIII. Of interest and of partial payments, . 66 PART II. Title IX. Commissioner of Accounts, . . . 72 General supervision of Fiduciaries, etc., . . 74 Caption I. To keep the Eecords of Fiduciaries, etc., to in- spect and report upon their bonds, etc 77 Caption II. To inspect, etc., inventories, appraisements, and accounts of sales, .... .78 Caption III. To summon Delinquent Fiduciaries to make return of inventories, ... ... 84 Caption IV. To examine the statements exhibited by "such fiduciaries" as quaUfy, etc., and by trustees, of moneys received and disbursed, with vouchers, and, after posting notice, to state and settle their accounts, and report to the court, and make entries on Record of Fiduciaries. Of receipts for vouchers, memorandum of statements, notice or list to be posted, debits and credits, loss or improper payments, failure to collect, compensation and allowances, pertinent matter, etc., . 87 CONTENTS. i (a.) Time to be embraced in stated aocoimt, . 94 (b.) Credits or amounts received, and their order, and of interest, 94 (c.) Debits or disbursements and their order, . 100 For costs of administration, funeral expenses, . 101 In case of a trustee, . ... 102 In case of a guardian, 103 In case of a curator, committee, or personal representative, 104 Order of payment of debts of a decedent, . 105 Marshalling Assets, . . . . 106 Payments of legacies, annuities, etc., . . 107 Payments for support and maintenance, . 109 Of Distributions, 110 Of Hotch-pot, 113 {d.) The form of the account and report, . . 114 Caption V. To summon delinquent fiduciaries to exhibit statements of receipts and disbursements, with vouch- ers for the disbursements, . . . 117 Caption VI. To examine and report upon the bonds of fiduciaries, their fitness, etc., 121 Caption VII. To take, after posting notice, proof of debts or demands against decedents, or their estates, state an account of them, and report to the court, . . 125 Caption VIII. To report accounts stated, and other mat- ters deemed pertinent or required to be stated, . . 126 Caption IX. To return with his report, if required, vouch- ers and evidence, 127 Caption X. To return, with accounts stated, afiBdavits, subscribed by the commissioner, as to the time occu- pied in settling- said accounts, 128 Caption XI. To report semi-annually (when so ordered) upon the Treasurer's Bond, .... 130 8 CONTENTS. PART III. Title X. Other occasional duties. A. Taking and certifying acknowledgments, . . 131 B. Witnessing the drawing of jurors, etc., . . . 135 C. Ascertaining the lien of a fieri facias, . . . 136 D. Receiving interrogatories, etc., to a defendant in custody, etc 142 E. As a Conservator of the Peace, .... 144 Title XI. Fees. Rates, time occupied, affidavit to be appended, to whom charged, how collected, fee book, etc., . . 160 PART IV. Commissioner's Forms, . . . . 162 Index, 197 INTRODUCTION. Whatever may have been the extent of the powers and duties of masters in chancery, in the old English courts, the office is now abolished in England, although it still exists in some of the United States.' In Virginia it is modified to a great extent, and may be considered a new office created by statute, invested with lim- ited powers and authority, and under a different name, as "Master Commissioner," or more commonly "Commissioner in Chancery" and "Commissioner," specially appointed.^ While to the new office there is not attached the power, dignity, and importance attendant upon the ancient original, yet the duties and powers pertaining to the modern office are considerable in extent and importance. In matters of reference, his chief duty, the commissioner i^ supposed to have the confidence of the court, and to relieve it of labor of inquiry. And the commissioner's report, although not conclusive until confirmed, is of weight with the court, and is usually confirmed unless contradicted by exceptions or objection sufficiently sustained. His other functions are not only such as are auxiliary to this one, but concern matters of public convenience, and some of them involve authority to impose costs and to commit to prison. 1 Dan. Ch'y. Pr., 4th Ed., p. 1168, note. ' 1 K. C, pp. 200, 203, 204, 207; sees. 22, 24, 39, 41, 63. 10 INTBODITOTION. In the Virginia State Courts special commissionei's may be t appointed, as substitutes for a regular commissioner, or to take proof of lost records, or to sell lands, or to execute deeds, etc., etc' Apart from these, commissioners in chan- cery in Yirginia State courts, or master commissioners, may bo classified in respect to their functions, as Commissioners aoi'ing undee a deceek of kefbrence, Commissioners of accounts, Commissioners in chancery generally. > Code, sec. 3320, 3340-'41, 3397, 3418. PART I. The paragra/plis in quotation, pi'eceded hy numbers, are taken from correspond- ing sections of the Code of 1887. TITLE I. Appointment and removal and oath of office. 3319. "Each Circuit Court, and each Corporation Court having chancery jurisdiction, or the judges thereof in vaca- tion, shall, from time to time, appoint Commissioners in Chancery, who shall be removable at pleasure. There shall not be more than four such commissioners in oifiee at the same time for the same court, except that the Chancery Court of the City of Richmond may have seven, and Cor- poration Courts and the Circuit Courts of the counties of Augusta, Pittsylvania, Loudoun,, and Rockingham, Louisa and Chesterfield, may each have five in office at the same time. The commissioners appointed by the Circuit Court pf Henrico County shall reside within the jurisdiction of said court." ' Commissioners in Chancery are required to take an oath or affirmation of office. 168. "Every uerson, before entering upon the discharge 'C. 1803, p. 68., sec. 57; p. 429, sec. 9. C. 1809, p. 1, sec. 1; p. 128, sec. 1. 1 B. C, p. 200, sec. 22; p. 257, sec. 63. 1830-'31 p. 68, sec. 76. 1833-'34 p. 74 chap. 60. 1835-'36; p. 35, chap. 48. 1838, p. 67, chap. 78. C. 1849, p. 658, chap. 175. 1852, p. 73, 74, chap. 81, 82. C. 1860, chap. 175. 1861, -'62,p. 80, chap. 63. 1870-'71, p. 154, sees. 4, 6. 1871-72, p. 466, chap. 378. C. 1873, chap. 171, sec. 2, 3. 1874-75, p. 366, chap. 272. 1875-76, p. 7, chap. 6. 1878-'9, p. 21, chap. 24. 12 COMMISSIONEES IN CHANCERY. of any function as an officer of this State, shall take and subscribe the following oath : "I, , do declare myself a citizen of the Common- wealth of Virginia, and do solemnly swear that I will sup- port and maintain the constitution and laws of the United States, and the constitution and laws of the State of Virginia ; that I recognize and accept the civil and political equality of all men before the law; and that I will faithfully perform the duty of , to the best of ray ability. So help me God." Also the anti-duelling oath. (Section 169 or 170.) The oath is taken before a court of record or some judge of such court, and unless taken before the court which appointed the commissioner, is to be certified to that court. (Section 172, 176.) 176. " If any person required to take an oath shall declare that he has religious scruples as to the propriety of taking it, he may make a solemn affirmation, which shall in all respects have the same effect as an oath." ' 182. " If any officer or person mentioned in sections one hundred and sixty-eight or one hundred and seventy-seven, shall act in his office, post, or trust, before taking such oaths, or giving such bonds, as required by law, he shall forfeit not less than one hundred nor more than one thousand dollars." ^ As to the locality of their jurisdiction, it conforms to that of the court appointing them, or to that of the court under whose decree their action is taken, as provided by section 3320. ' 1806-7, p. 8, chap. 9. IE. C, p. 73, chap. 28, sec. 5. C. 1849, p. 88, chap. 13, sec. 7. !> 1 K. C. , p. 279, sec. 14 ; p. 287, sec. 6. 1820-'21, p. 29, chap. 29. 1830-'31, p. 132, chap. 63. 1832-'33, p. 17. chap. 15, 1849, p. 88, chap. 13, sec. 10. 1852, p. 84, chap. 105 TITLE II. Report on Reference. The principal and original function of a commissioner in chancery is " to examine and report upon such accounts and matters as may be referred to him by any court." ^ (Section 3320.) The Code, 1803, p. 68, chap. 64, sec. 57, gives the Act of November 29th, 1792, "in such cases as may require a re- port which cannot be performed without great delay to other business." In the Acts of 1830-'31, p. 68, chap. 11, see. 76, we find the language used, "for taking and reporting such accounts, or other matters as such courts shall submit to them to be examined, stated and reported." The subjects are not restricted except by the court, which will not direct accounts to be taken unless the propriety of so doing is demonstrated. (4 Minor's Insts., pp. 1104-1108 and 1220.) The subjects may be classed in two divisions: "Matters of Account" and "Other matters"; or as to per- sons, next of kin, etc., and other facts, boundaries, etc. The most frequent matters of account are equitable claims or trusts, administration of assets of decedents, transactions of fiduciaries generally, partnership affairs, of bailiffs, receiv- ers or agents, of co-parceners, co-tenants, or tenants in com- mon; mutual demands, especially if the accounts are intri- cate ; demands on one side only, but when discovery is mate- rial. • R. C, 1803, p. 68, chap. 64, see. 57. E. C, 1808, p. 1, sec. 1. 1825-'26, p. 16, chap. 15. 1830-'31, p. 68, chap. 11. 1835-'36, p. 34, chap. 44. C. 1849, p. 394, sees. 46, 47, 48; p. 658, sees. 1-9; p. 663, sec. 24. C. I860, p. 720, sees. 1-10. 1870-'71, p. 9, chap. 12; p. 153, 154, chap. 102. 0. 1873, chap. 171. (See Lube's Eq. PI., chap. V., sec. 11.-) 14 COMMISSIONERS IN OHANCEKy. Other matters (than accounts) are : Exceptions Cto answers) ; scandal and impertinence ; irregularities ; title to land ; heirs at law; next o£ kin; creditors; legacies; annuities; liens; etc.; which last four frequently involve accounts. The commis- sioner is to determine these matters as tlie court would ; but besides considering such documentary evidence and deposi- tions of witnesses as may be filed with or before him (Acts 1825-26, p. 16, chap. 15, sec. 5), he is to hear the evidence of such witnesses as may be brought before him, and, when required, to take their testimony in writing, that it may be returned to the court, when so directed by the decree of reference, or upon a suggestion by counsel that it would be called for by a subsequent decree. That he may the more readily take such testimony, a commissioner in chancery may summon the attendance of witnesses, and may also administer and certify oaths, affidavits, and affirmations, and take and certify the depositions of witnesses; but as such power, for public convenience, extends to matters outside of a reference under decree or order, the statutory authority and its inci- dents are treated of separately under distinct titles: Sum- mons, etc., (Title V.); Oaths, Affirmations, Depositions, Wit- nesses (Title VI.). The authority for the commissioner's proceeding in this case is the decree or order of court, called decree or order of "reference," and the terms of the decree control the action of the commissioner. The language employed usually runs thus : " It is hereby ordered and decreed that it be referred to one of the commissioners of this court to state and report to the court the following accounts, viz. : . . . together with any matter, specially stated, deemed pertinent by the commissioner, or which may be required by any party to be stated," or "to inquire (or examine) and ascertain and re- port to the court whether, etc., etc., together with any mat- ter, specially stated, deemed pertinent, etc." When this lat- ter part, " together with any matter, specially stated, deemed pertinent," etc, is omitted from the decree, the commissioner, COMMIS8IONEE8 IN CHANCERY. 15 who under the statute, section 3320, is to report " upon such matters as may be referred by the court," cannot go beyond or outside of the matters mentioned in the decree, unless by agreement or consent of parties or of counsel. It is to be presumed that if the court intended him to act on other mat- ters deemed pertinent, the decree would so state. The statute (section 2696) applies only to certain ex -parte reports made without a reference, and not to reports on reference. Re- ports on reference are either in suits or ex parte. A . Of Reports on Reference in Suits. The decree is called a decree " of reference" or " for ac- counts." A copy was formerly made by the clerk 6f the court and delivered by counsel obtaining the decree to the commissioner in chancery of that court, or such one of them (when there was more than one) as he might and did prefer, unless the order mentioned some particular one. But now, in general (since Act 1883-4, p. 178, chap. 140), the counsel at whose instance the decree or order of reference is made merely requests the commissioner to execute the decree, and the commissioner obtains from the clerk of the court in which the suit is pending the original papers thereof, giving his re- ceipt therefor. He is to return the papers as speedily as pos- sible, to the office of the clerk of the court. (See section 3326.) After a cause has been referred to a commissioner it should not be withdrawn without order of court, etc. (Matthew's Guide, p. 2, sec. 6.) This subject may be considered in respect to : First, Notice, and continuance or adjournment; Second, The mode of examination or inquiry; Third, Th'e subject matter of the inquiry and report ; and Fourth, The report and its incidents. Of Notice. The subject of notice generally and the mode of serving is more fully stated in a separate title (Title III.), with ex- 16 COMMISSIONERS IN CHANCERY. tracts and citations from the Code. It is suflBcient here to make the following statements in regard thereto : All par- ties, and sometimes others by special order, interested in the reference are entitled to reasonable notice. The notice should be in writing, and should give the style of the suit or pro- ceeding in which the order of reference is made, and should be addressed " to the parties to the said cause ;" and where the notice is by publication, it should be addressed by name to the parties plaintiffs, and by name to the parties defen- dants, as well as to classes, as " heirs" or " creditors" ; it should refer to the order or decree of reference and its date, and should state the time and place (usually the commissioner's office) fixed or appointed for the inquiry, and refer to the subject matter of the inquiry with more particularity when the notice is by publication. The notice should be signed by the commissioner as such. The notice should allow a reason- able time. When there is personal service, ten, days is always sufficient time, and at least two always necessary. The time allowed must be exclusive of the day fixed for hearing . or proceeding. (Code, sec. 5, clause 8.) The time to be al- lowed in case of publication may well be fixed at fifteen days after its completion, to correspond with sections 3230, 3231. A notice is to be served by delivery (or its equivalent) of a copy to each person entitled to notice ; but as to non-residents by publication, and by special order of court as to residents, by publication. Where there has been publication ordered and completed in a suit or proceeding, no further publication or notice is necessary as to such defendants or unknown par- ties as have not appeared in accordance therewith. The notice to be served may be delivered to the sheriff of the county or sergeant of the city where the parties reside, with a copy for delivery to each party, and the officer shall serve it within his bailiwick, and make return of the manner and time of service, but it may be delivered to and served by any one, only the return made by any other than the officer must be verified by affidavit. For mode of service see Code, COMMISSIONERS IN CHANCERY. 17 section 3207. As to a corporation or bank of circulation, see sections 3225 to 3228. For form of notice to be deliv- ered, see Forms, No. 1. The notice by publication to non- residents may be served by publication thereof once a week for four successive weeks (completed) in a newspaper printed in this State. (Section 3208.) (See Forms, No. 2.) Where the order or decree prescribes the kind of notice and mode of serving it, whether by publication once a week for four successive weeks in some convenient newspaper, under section 3321, or otherwise, the notice in these respects is to conform to the directions and requirements of the de- cree or order. For convenience, notice is sometimes waived or service ac- cepted by a party or his counsel, by endorsement in writing to that effect, signed by such party or his counsel. Account stated without notice declared void. (6 Munf., p. 45.) If no notice, or insufficient notice, is given, the objection must be made at the hearing. If no objection for want of ptoper notice be made at the hearing before the court, the defect is cured. {HUl v. Bower, 18 Grat., 36i.) Likewise as to commissioner's failure to mention iu a report that no- tice was given, 2 Munf., 285, or the place of meeting, 1 Wash. 162. 3323. " A commissioner may adjourn his proceedings from time to time, after the day to which notice was given, with- out any new notice, until his report is completed." (1 870-'71, p. 9, chap. 12.) The adjournments are a part of the commissioner's pro- ceedings to be reported to the court, and minutes should be made at the times of adjournments, to enable the commis- sioner to report them properly. They may be qupstioned on exceptions. Since a copy of the decree has been dispensed with by Act 1883-84, p. 178, chap. 140, the commissioner's notice is the most convenient paper on which to note attend- ances, adjournments, names of parties, attorneys, and wit- nesses. 18 COMMISSIONERS IN CHANCERY . Of the Mode of Examinaticn and Inquiry. After due notice, the commissioner proceeds in accordance therewith to execute the decree. It directs him to examine, that is, to inquire of, the parties who appear, and to examine the evidence produced by them, whether matter of record, document, deposition, or testimony of competent witnesses. More extended remarks on the subject of evidence, witnesses, and depositions, will be found under Title IV., Evidence, etc. Not only are tlie facts supposed to be in the knowledge or possession of the parties, but it is not the duty of a commis- sioner in chancer-', nor, would it be proper for him, a quasi judge, to be making up a case for either side. Although, as a matter of convenience, he may, to avoid delay and incon- venience, examine at the clerk's office any specified record, without requiring a copy to be made, he will be apt to find himself mistaken in his course when he undertakes to search public records at the instance of parties to the suit. It is the duty of the party obtaining the decree- of reference to prose- cute it. If he does not do so at the time fixed, after due notice, the commissioner will usually adjourn the proceedings, but must instead, if so required by the other side, report the failure to prosecute. And no notice is taken of possible creditors, who do not come in, whether entitled or not. (Matthew's Guide, p. 67, sec. 78.) A party failing to attend may suffer for his negligence. (2 Munf., 505.) The evi- dence of the plaintiff is iisually heard first, then that of the defendants, and then rebuttal testimony.' Proceedings be- fore a commissioner are much less formal than in court. No particular form of testimony of witnesses is prescribed. That of depositions is adopted, frequently omitting the writing of the interrogatories. "When the testimony is closed, whether after completed evidence or negligence to produce it, the commissioner proceeds to jnake up his statement from the evidence adduced. Objection to an item of account, for want of voucher or proof, should be made before the commissioner. (4 H. & M., p. 450.) COMMISSIONERS IN CHANCERY. 19 3322. "A commissioner who, in taking an account to be returned to a court,' doubts as to any point which arises be- fore him, may in writing submit the point to such court, or the judge thereof in vacation, who may instruct him there- on." ' For a form of such submission to the court or judge, see Forms, No. 3. Of the Subject- Matter of the Inquiry and- Report. The cases that may be presented to a commissioner upon reference, and the questions of law that may arise, are very numerous. . Some of these matters have already been alluded to in the first part of this title. Some are treated of under the title " Commissioner of Accounts," but in respect to the present title, the inquiry and report are to be confined to the matters referred by the decree, which is the commis- sioner's authority and the limitation of it. Whether such matter is a proper subject of reference is for the court, not for the commissioner, to consider. His only occasion for ex- ercise of discretion is under the customary clause "matter specially stated, deemed pertinent by the commissioner," or perhaps as to the " matter required by a party," for such matter sliould be pertinent to the principal matter referred. Of the Report and its Incidents. " When the commissioner's report is completed, it may be filed in the clerk's office at any time thereafter"^ (sec. 3323). in the clerk's office of the court that decreed or ordered the reference. If in term time it may be filed in court, but for convenience it is usually filed with the clerk, who marks on it the date, and mentions it in the memorandum of proceed- ings in the suit, and the next decree entered alludes to the "IB. C, 1808, p. 128, sec. 1. R. C, 1819, p. 200, sec. 23. 1830-'31, p. 68, sec. 77. C. 1849, p. 659, sec. 6. C. 1860, p. 720, sees. 6, 7. C. 1873, p. 1104, sees. 7, 8. ■^ 1825-'26, p. 16, chap. 15, sec. 4. 1835-'36, p. 34, chap. 44. C. 1849, p. 659, sees. 7, 8. C. 1860, p. 720, sees. 8, 9. 1870-'71, p. 9, chap. 12. C. 1873, p. 1104, sees. 8, 9. . 20 COMMISSIONERS IN CHANCERY. report as having been filed on such a day. Formerly (Code 1849, chap. 175, sec. 7) the report was required to remain with the commissioner ten days after completion. That law is well repealed. A common effect of this delay was for coun- sel to postpone proper pi-oof of their case until they learned the commissioner's views, and then, if adverse, for them to produce further testimony or re-open the case. Formerly also the statute prescribed that " the commissioner shall with this report return the exceptions and such remarks thereon as he ma}' deem pertinent, and the evidence relating thereto." Without this, under the decree, he reported facts- or his con- clusions only. But when by Acts 1870-71, pp. 9, 10, chap. 12, sec. 8, this part of sec. 7, chap. 175, Code 1849 (together with the part requiring the report to lie ten days in the commissioner's office) was abolished, there remained no au- thority for the commissioner upon a reference to file any evidence with his report. The statute (Code 1887, sec. 2697) applies only to certain ex 2)arte reports not on refer- ence. The commissioner may of- course return evidence by consent of parties. And if it is intimated that* exceptions will be filed, the commissioner ought to be prepared to send up any evidence that may be ordered by the court, or at least to specify it. 3324. " With his report the commissioner shall return the de- crees, orders, and notices under which he acted." (The words "decrees " and " orders " are probably retained by inadvertence. See Acts 1883-'84, chap. 140, and Code, sec. 3326.) "He shall not copy in his account or report any paper; and if there has been a previous account, he shall not copy it into his ; but taking it as the basis of his, correct the errors and supply the defects thereof by an additional statement. Every- thing improperly copied into the commissioner's account shall be expunged at his costs, on tlie application of either party; and if on account of his negligence or misconduct, a report be recommitted, he shall bear the costs occasioned thereby." COMMISSIONERS IN CHANCERY. 21 The statement of the commissioner's conclusions from the evidence as to the matters referred to him constitutes the substance of his report, and the form of the statement will depend rather on the nature of such matters, and cannot be generally prescribed. Accounts are stated in the form of debits and credits (see Forms, under Title Commissioner of Accounts). Matters specially stated are to be kept separate from the general statement under the decree. The report should commence with the style of the suit in which, and be addressed to the judge of the court by which, the order of reference was made. It slipuld refer to the decree of reier- ence by date, and to due notice returned with the report, and any proceedings of the commissioner which may be ob- jected to. For the caption and formal part of a commissioner's re- port under a decree of reference, see Forms, No. 4, espe- cially as to notice and with respect to time and place fixed. At the foot of his report the commissioner should state the amount of his fees for services under the decree of refer- ence, and to whom they are chargeable, and append an affi- davit as to the number of hours he was employed. (See Title Fees.) This provision is sometimes practically impos- sible to carry into eflfect. Reference hack, recommitting report. After the return to court, or to the clerk's office, of a com- missioner's report made under a decree of reference, when the cause comes to be heard upon the report, it is considered by the court, and the court may without exceptions, for reasons appearing on the face of the report, recommit it to the com- missioner, referring the matter back for correction of errors or for additional information. In general, however, the report of the commissioner is ex- pected to be confirmed by the court, unless some objection is made. Such objection is made by exceptions, that is, a state- ment of objections to the report, with the reasons for or 22 COMMISSIONERS IN CHANCERY. grounds of such objection, made through counsel, by the party objecting. If the exceptions are overruled, the report is confirmed, unless the court of its own motion finds objection. If the exceptions, or any of them, are sustained, the report will so far not be confirmed, and if necessary for further information to, or as basis of action by, the court, will be re- committed to the commissioner, to be reformed and amended where it has been adjudged erroneous or insufficient. Under a decree recommitting a report, or referring it back to the commissioner, his proceedings are similar to the pro- ceedings under an original reference, except that his inquiry and report under the reference back is usually limited to the special matter for which the report was recommitted, and that -the decree will not embrace " any other matters specially stated, deemed pertinent by the commissionei-, or which may be required by any person interested to be so stated." B. Of Report on Reference Ex parte. A reference ex parte being on the application' of one side or party merely, instead of in suit or controversy between two or more representing different conflicting interests, it will be found that some difference occurs in the proceedings under such reference. This difference affects chiefly the matters of notice, etc., and mode of examination ; except as to such matters there is no difference, either in respect to the subject-matter of the inquiry and report, or in respect to the report and its incidents. First: As to Notice, etc. In many instances in case of reference ex parte no notice is required. Where any is required, it so appears, either by the order of reference or by the statute in regard to the subject- matter. With this modification the remarks on notice, etc., under caption A. of this title, may be applied to the subject under caption B. COMMISSIONERS IN OHANCEET. 23 Second : As to the Mode of Exam,mation and Inquiry. The difference in this respect results from the difference as to notice, and consists in the fact that, where only one side is present or represented, objections and cross-examina- tions do not occur for consideration. With this modification the remarks on mode of examination and inquiry under cap- tion A. of this title may be applied to the present caption B. Before dismissing this subject, attention may be called to special mention, in the Code of Virginia, of certain ex parte orders of reference, under section 855, with regard to section 177, and under sections 1704, 2685, 2686, 3414, 3415, 4121. Of the Report -upon the Treasurer'' s Bond. "An obligation or bond is a deed whereby the obligor obliges himself, his heirs, executors and administrators to pay a certain sum. of money to another." "A deed is a writing sealed and delivered by the parties," and signed. (Tucker's Commentaries, [243].) 177. "Every bond required by law to be taken or ap- proved by, or gi^'en before any court, board or officer, unless otherwise provided, shall be made payable to the Common- wealth of Virginia, with surety deemed sufficient by such court, board, or officer. Every such bond required of any person appointed to, or undertaking any office, post or trust, and every bond required to be taken of any person, by an order or decree of court, unless otherwise provided, shall be with condition for the faithful discharge by him of the duties of his office, post, or trust ; and when required to be taken or approved by or before the Governor, a court, or the clerk of a court, shall be proved or acknowledged before the Governor, or court, or clerk, as the case may be, and recorded by. the secretary of the commonwealth in the first case, or by the clerk of the court in the other cases ; and wher? the bond is taken under an order or decree in a pending cause, a certified copy thereof shall be filed in the cause by the clerk, and charged as costs therein. Every such bond shall contain, as 24 COMMISSIONERS IN CHANCEEY. to the respective obligors, si^ch a waiver as is provided for in section thirty-six hundred and forty-seven, and also of any claim or right to discharge any liability to the common- wealth arising under said bond, or by virtue of said office, post, or trust, with coupons detached from bonds of this State." ^ 814. "Every county treasurer, . . . shall at the time he qualifies, give such bond as is prescribed by section one hun- dred and seventy-seven. The penalty of the bond of each officer, to be determined, within the limits herein prescribed, by the court or judge before whom he qualifies, shall be as follows: of the bond of the county treasurer not less than double the amount to be received annually by him;" 815. "Every city treasurer, at the time he qualifies, shall, in addition to any bond required of him by his city under its charter and ordinances, give a bond with sufficient sure- ties, in a penalty double the amount of the State revenue to be annually received by him, payable to the commonwealth, and with condition for the faithful discharge of his official duties in relation to the State revenue, and of such other official duties as are imposed upon him by law otherwise than by the charter and ordinances of his city; provided, that the pen- alty of the bond of the treasurer of the city of Richmond shall be two hundred thousand dollars, and the penalty of the bond of the treasurer of the city of Petersburg, and of the bond of the treasurer of the city of Lynchburg, shall in each case be seventy-five thousand dollars." ^ 855. "Each County and Corporation or Hustings Court shall enter an order at its March and September terms in each year, requiring the commissioner of accounts of such court, or if it be improper for such commissioner to act, or if there be no commissioner of accounts of such court, then the commissioner of accounts of some other court to be de- ' 1842-'43, chap. 18, p. 22. C. 1873, chap. 12, sec. 6. 1874^75, chap. 71, p. 53. 1884, chap. 23, p. 24. 2 1869-'70, pp. 447-'48, sec. 3. 1870-71, p. 255, chap. 173. C. 1873, chap. 54, sec. 13. COMMISSIONERS IN CHANCERY. 25 signated in said order, to examine the official bond of the treasurer of such county or city, and report to the said County, Corporation or Hustings Court at its next term thereafter, whether the said bond is sufficient in all respects, and at the same time certify a copy of such report to the Auditor of Public Accounts. If the bond be reported insuf- ficient, the court shall make an order requiring the treasurer, within thirty days after he shall have been served with a copy of the order as a notice is required by law to be served, either to execute a new bond, or to give a bond in addition to the one already given, as to it may seem proper, which bond may be given before the said court, or the judge thereof in vacation. If the bond required be not given within the time prescribed, the office shall be deemed vacant. The commis- sioner's fee shall be paid out of the county or city funds." ^ 856. "For the failure of any commissioner of accounts to make the report required by the preceding section, he shall be fined five dollars for each week his failure continues; such fine to be recovered on five days' notice, to be given by the attorney for the commonwealth in the court in which the re- port is required to be made." In cities and towns the treasurer is also a corporation of- ficer, and as such gives a bond, with which the commissioner of accounts has nothing to do. The bond above mentioned is the treasurer's bond to the commonwealth, prescribed by section 177 in relation to State revenue. The commissioner is to be a commissioner of accounts. His duty under the order is plain. The bond is to be " suf- ficient in all respects," that is, as to form, conditions, penalty, and solvency of sureties. It "shall be made payable to the Commonwealth of Virginia," " with surety deemed sufficient by such court," "shall be conditioned for the faithful dis- charge by him of the duties of his office, post, or trust," " ac- knowledged before the court," and "shall contain, as to the 1 1877-78, chap, 266, p. 248. 1879, chap. 60, p. 319, sec. 4. 2 26 OOMMI88IONEES IN OHANCEBY. respective obligoi-s," a declaration that / {or we) waive the ' henefit of my {or our) exemption as to this obligation, and also "any claim or right to discharge any liability to the commonwealth arising under said bond, or by virtue of said office, post, or trust, with coupons detached from bonds of this State." As to the amount of the penalty, it must be "double the amount of the State I'evenue to be annually re- ceived by him." Estimated generally by. previous returns to the auditor. As to the solvency of sureties, the ordinary mode of ascer- taining this, at the time of taking a bond in court, by oath as to sufficiency, may be pursued in the subsequent inquiry, if any change is supposed to have occurred in regard to the solvency. A form of report is given. No. 5. Of the revort on reference on a petition to sell the estate of an insane person, or of a convict. 5. "Tenth, The word "land" or "lands," and the words " real estate," shall be construed to include lands, tenements, and hereditaments, and all rights thereto and interests there- in, other than a chattel interest, and the words "personal es- tate" shall include chattels real, and such other estate as, upon the death of the owner intestate, would devolve upon his personal representative." "Sec. 1703. If the persbnal estate of such insane person be sufficient for the discharge of his debts, or if the personal estate, or residue thereof, after payment of the debts, and the rents and profits of his real estate, be insufficient for his main- tenance and that of his family, if any, the committee of his estate may petition the court by which he was appointed for authority to mortgage, lease, or sell so much of the real es- tate of such insane person as may be necessary for the pur- poses aforesaid, or any of them, setting forth in the petition the particulars and amount of the estate, real and personal, the application which has been made of any personal estate^- COMMtSSIONKRS IN CHANCKKY. 27 and an account of the debts and demands existing against the estate." ' "Sec. 1704. On the presenting of snch petition, it shall be referred to a commissioner in chancery, to inquire into and report upon the mattery tlierein contained, wliose duty it shall be to make such inquirj'^ to hear all parties interested in such real estate, and to report tliereon with all convpnient speed." 4121. "The real estate of such convict may be sold, when necessary for the payment of his debts, in the same manner as the real estate of an insane person in the hands of a com- mittee."^ The commissioner is "to hear all parties interested in such real estate." The petition will afford information as to the real estate, but there is no'provision for ascertaining and giving notice to those interested, other than their riglit to come forward, unless the petifion affords tliat too, as it should do, as "par- ticulars," which the commissioner is to consider. No par- ticular form of report is necessary. The general Form, No. 4, can be used. Of 7'eports on reference, ex parte, of acconiits and bonds of fiduciaries. 2C85. "On motion of any fiduciary having charge of an estate, or of any person interested therein, the court, or the judge thereof in vacation, may require any one of its commis- sioners in chancery to settle the accounts of sucli fiduciary ; and, whenever a court deems it proper, it may require any one or more of its commissioners in chancery to settle the account^ of any of the fiduciaries mentioned in the preceding sections of this chapter. A commissioner making a settle- ment under such order of a court shall, within thirty days, ■ 1840-'41, chap. 15, p. 41, sees. 16, 17, 18; p. 42, sec. 19; p. 47, sees. 42, 43, 44. C. 1849, pp. 393, 394, chap. 85, sees. 40-48. C. 1860, chap. 85, sees. 50-58. C. 1873, chap. 82, sees. 43-51. = 1877-78, p. 358, chap. 21, p. 12. '28 COMMISSIO^fEKS IN CHANCERY. report the fact and date of such settlement to the cornmiV sioner of accounts, who shall make an entrj' of tlie same in his record book. Any commissioner having before him the account of a fiduciary for settlement shall, on request, exe- cute and deliver to sucli fiduciary, a receipt for all vouchers filed with him, wliich receipt, if said vouchers be afterwards lost or destroyed, shall, in any suit or proceeding against such fiduciary, be evidence of the delivery to such commissioner of the vouchers therein mentioned."' 2686. "When any personal representative, guardian, cura- tor, or committee, except a sheriff or other officer, shall have laid such statement before a commissioner, he shall examine whether said fiduciary has given such bond as the law re- quires, and whether it is in a penalty, and with suieties suffi- cient. Any commissioner of the court in wliicli the order was made conferring on such fiduciary his authority, shall, at any time before such statement is laid before a' commissioner, upon the application of any pei'son who is interested or ap- pears as next friend of an infant interested, after reasonable notice to such fiduciary, examine into any of the said matters, or inquire whether security ought to be required of a tidu-. ciary who may have been allowed to qualify without giving it, or whether, by reason of the incapacity, misconduct, or removal of any fiduciary from this State, or for any other cause, it is improper to permit the estate of the decedent, ward, or other person, to remain under his control. The result of every such examination and inquiry shall be re- ported l)y the commissioner to the court by which he is ap- pointed.'"^ As to Settling Accounts, etc., under Section 2685. This section authorizes a court, whenever it deems it pro- per, to require any one or more of its commissioners in chan- ' C. 1873, chap. 128, sec, 16. 1874, chap. 258. 1875-'76, chap. 63, p. 53. < 1 E. C, p. 384, sees. 37, 38, 41; p. 407, sec. 5; p. 408, sec. 10. 1824-25, p. 11, chap, 8, sees, 3, 4, C. 1849, sec. 10, chap. 132, C0MMI8SI0NEKS IN CHANOEBY. 29 eery, other than the commissioner of accounts, to settle accounts of fiduciaries who have qualified in that court. It is presumed that the court will not do so without good rea- son, as there is evident advantage in the supervision of one commissioner of accounts, when he is a good one; the statute also allows the court, on motion of a fiduciary qualified in that court, or of any one interested, to requirp any one of its commissioners in chancery to settle accounts of such fiduciary. In either of the above cases the commissioner is to proceed as would the commissioner of accounts of that court, for which see Title IX. herein, except that this commissioner in chancery, not having the record book of the commissioner of accounts, is, within thirty days after making settlement of the accounts, to report the fact and date of such settlement to the commissioner of accounts, who shall enter the same in his record book. The report of the commissioner in chancery is to be like that of the commissioner of accounts, except that it should read "exhibited before me, , a commissioner in chan- cery of the court of , authorized thereby to settle accounts of fiduciaries," (or, "ordered on motion of A. B., etc., to settle his accounts"). By section 2686 commissioners in chancery who settle ac- counts under section 2685 by order of court, are required also to " examine whether the fiduciary has given such bond as the law requires, and whether it is in a penalty and with sureties sufficient." " The result of such examination shall be reported by the commissioner in chancery to the court by which he is appointed." Except in case of " a sheriff or other officer," their bonds being otherwise regulated. (Sec. 178.) With respect to fiduciaries, "the law requires" th6 bond to be in the form and with the conditions prescribed by section 177 given above. The penalty is prescribed by various sta- tutes according to circumstances, as mentioned in Title IX., Commissioners of Accounts. The sufficiency of sureties and form of report are also there considered, but the observations, 30 COMMISSIONERS IN CHANCERY. as to the change of style in referring to the commissioner's title and authority, mentioned above, under section 2685, apply also to this section. Of Reports on Reference Ex parte on the accounts and bonds of Receivers. 3414:. "Each Circuit and Corporation Court, at its first regular term after the first day of January in eact year, by an order entered of record, shall require one of its commis- sioners in chancery, other than a commissioner who may have been appointed general receiver thereof, to state and settle the accounts of all the receivers of such court, both general and special, and of all persons to whom any money has been loaned under the order of the court, or who have money subject to the future order of tlie court, and which then remains undisbursed. The clerk of the court shall fur- nish to such commissioner a copy of the order so made, with a list appended thereto, exhibiting the names of all such re- ceivers and persons. The said commissioner shall summon such receivers and persons, or the personal representatives of such of them as are dead, before him, and audit, state and settle their accounts, and report the same to the court at its next terra after such order has been made. He shall also cause the bonds of the receivers of the court, and the "bonds or other securities given for any money loaned under the order of the court, to be produced before him, and shall as- certain if the obligors in such bonds, or if such other securi- ties are suflBcient, and report thereon to the court at the times before mentioned."^ 3415. "The courts shall examine the reports required by the preceding section, when the same are made to it; and if satisfied of the correctness thereof, shall order them to be recorded. If it appears from the report of the commissioner that any bond of a receiver, or any bond or other security ' 1852, p. 72, sees. 11, 14. C. 1860, chap. 179, sees. 25, 28. C. 1873, ,ohap. 175, sees. 25, 28. COMMISBIONEBS IN CHANCERY. 31 given by any person to whom money has been loaned under its order, is insufficient, the court shall order additional secu- rity to be given, or a new bond to be executed before it, in such penalty as may seem, right, and with sufficient sureties. But the execution of such new bond shall not discharge the sureties in any prior bond from their liability for acts of the principal obligor done previous to the execution of such new bond." The clerk of the court is to deliver to one of its commis- sioners in chancery (other than the general receiver of the court) a copy of the order, with a list appended, giving the names of receivers and persons whose accounts are to be stated. The commissioner is at once to summon such re- ceivers and persons, or the personal representatives of such as are dead, before him, and in pursuance of the order and' of the statute, is to audit, state and settle their accounts as presented by them, and to cause their bonds to be produced, and to ascertain if the obligors or other sureties are sufficient ; and the commissioner is to make his report upon these mat- ters to his court at its next term after such order made. The commissioner so ordered is to proceed much as does the com- missioner of accounts in respect to fiduciaries, except that no notice is to be posted at the courthouse door, and the form of his report is similar to that of reports generally on reference for accounts, rather than to the usual report of the commis- sioner of accounts. See form "Summons to Receiver," No. 6, and form "Ac- count Stated and Report," No. 7. TITLE III. Of Notice. Who are entitled to notice ? All parties beneficially interested are entitled to attend all proceedings which may affect their interests. (2 Dan. Chy. Practice, llY2-'74.) As a rule the commissioner will be acting on the safe side in notifying all the parties to the record, but those who can- not be affected by the proceeding are not entitled to attend. {lUd. 1173.) What is reasonable notice ? A reasonable notice should of course be given of all pro ceGd\ng6 not ex parte. [Ibid. 1170, note.) Two clear days the usual time in England for witnesses. [Ibid. 1333.) What is reasonable notice is nowhere defined in the law, and can- not well be defined, but must depend on the circumstances of each case. It should be sufficient to give the party an oppor- tunity to attend at the time and place fixed upon for the pro- ceedings. (10 Grat., 4:91-'98 ; 12 Grat., 604; 17 Grat., 226.) How want of notice is to be excepted to. Appearance and pleading waives any defect in process. (4 Call, 357; 16 Grat., 410.) The omission to state in a re- port that notice was given by the commissioner must be ex- cepted to, or cannot be taken advantage of. (1 Wash., 162; 2 Munf., 285, 305 ; 3 Grat., 330.) A fortiori, a statement of actual waiver of notice by parties is sufiicient, unless ex- cepted to, and even a waiver by counsel. (2 Call, 498; 4 Munf., 371; 2 Hen. & Munf., 268; 8 Leigh, 316 ; 18 Grat., 364; 22 Grat., 136; 1 Greenl. on Evidence, Part II., chap. 11, sees. 186, 205.) While no general form of notice can be conveniently prescribed, it may be stated that a notice should COMMISSIONERS IN OHANOEEY. 33 commence with the style of the suit, or other proceeding giv- ing ocoasion to the subject matter of the notice; should be addressed to the person, or class of persons, party thereto, or interested therein ; and should distinctly set out the time and place appointed for any action or proceeding, constituting the subject of the notice, as well as the nature of such proceed- ing. It should be signed by or for the party giving notice. ^^hat days are excluded from time allowed, hy notice. 5, clause 8. " Where a statute requires a notice to be given, or any other act to be done, a certain time before any motion or proceeding, there must be that time exclusive of the day for such motion or proceeding, but the day on which such notice is given or such act done, may be counted as part of the time." 5, clause 9. "Where" any "proceeding" is "directed by law to take place on a particular day of the month, if that day happen to be Sunday, the proceeding " shall " take place on the next day." " An adjournment from Saturday to Monday is a legal ad- journment from day to day." Mode of Serving Notice. The sections of the Code respecting service of notice are given in extenso under Title Y. herein, "Of Summons," etc. 3207. " A notice, no particular mode of serving which is prescribed, may be served by delivering a copy thereof in writ- ing to the party in person ; or, if he be not found at his usual place of abode, by delivering such copy and giving informa- tion of its purport to his wife or any person found there, who is a member of his family, and above the age of sixteen y€ars ; or, if neither he nor his wife, nor any such person be found there, by leaving such copy posted at tlje front door of such place of abode. Any sheriff, sergeant, or constable, thereto required, shall serve a notice within his county or cor- poration, and make return of the manner and time of ser- vice; for a failure so to do he shall forfeit twenty dollars. 34: COMMI88IONEEB IN CHANCERY. Such return, or a similar return by any other person who verifies it by affidavit, shall be evidence of the manner and time of service." ^ 3208. "Any such notice to a person not residing in Vir- ginia may be served by the publication thereof once a week, for four successive weeks, in a newspaper printed in this State." ' For mode of service on corporations or a carrier, see post, Title v., "Of Summons," etc., and the sections of the Code, 322o-'28, there recited. 3363. " Whenever any party, on whom a notice to take a deposition should be served, is not a resident of Virginia,- the service of such notice on the counsel of such party, or any one of such counsel, if there be more than one, shall have like effect as if it were served upon the party, provided the time between the service of notice and taking the deposi- tion be sufficient for conveying by ordinary course of mail a letter from the place of service to the place of residence of the party, and a reply from that place back to the place of service, and then for the counsel to attend at the place of taking the deposition. In all cases when notice is served on counsel as aforesaid, the court, upon exception being taken, may determine whether, under all the circumstances, the no- tice has been served in reasonable time, and admit or reject the deposition accordingly." ' ' 1 B. C, p. 506, sees. 66, 67. C. 1849, chap. 167, sec. 1. C. 1873, chap. 163, sec. 1. 1874, chap. 49, sec. 39. "1 R. C, p. 521, sec. 21. 1822-'23, p. 39, chap. 37, sec. 3. 1830-'31, p. 101, chap. 32, sec. 2. C. 1849, chap. 167, sec. 2. C. 1873, chap. 163, sec. 2. 3 1852, p. 76, chap. 88, sec. 1. C. 1873, chap. 163, sec. 3. TITLE IV. Of Evidence and the Examination of Witnesses. (See Miuor's Insts. Vol. IV. pp. 687-728.) When, after proper notice duly given or waived, a matter comes up for hearing, the next step is the proof to support the proceeding. The burden of proof is generally upon the party making the aflfirmative allegation, but the onus pro- handi may be shifted during the examination. Some things are taken notice of without proof, such as sovereignties and nationalities, and their symbols or flags and seals of state and public acts exemplified under them. The law of nations, the seals of notaries public and admiralty courts, the ordinary course of nature and of time, the mean- ing of words in the vernacular, legal weights and measures, matters of public history, proceedings of national. State and municipal governments or public laws, etc. (Code, sees. 3327, 3330-'31.) "Acts and resolutions of the General Assembly, though local or private, may be given in evidence without being specially pleaded; and an appellate court shall take judicial notice of such as appear to have been relied on in the court below." (Sec. 3328.) " Copies of journals of each house of the Assembly, printed as prescribed in the nineteenth chapter, shall be received as evidence for any purpose for which the original could be re- ceived." (Sec. 3329.) "All courts and officers shall take notice of the signature of any of the judges, or of the governor of this State, to any judicial or ofBicial document." (Sec. 3332.) Attested copies of deeds and records of papers under sections 3333, 3337, 3342,-'4:3,-'44. Proof of particular facts is sometimes taken to be supplied 36 C0MMI8SI0NEES IN CHANCEEY. by or rendered unnecessary by proof of what are called es- toppels. Estoppels are where a man has done some act which the policy of the law will not permit him to gainsay or deny. They must be certain in every particular. Instances are re- citals in deeds of things in particular between parties and privies, covenant of warranty, title of landlord, etc., and ad- missions. Admissions may sometimes be proved as evidence, as to the person who made them, of the facts admitted; solemn admissions in court expressly made or implied by pleading; extra judicial admissions acted upon or influenc- ing conduct which cannot be denied without a breach of faith. With respect to admissions it may be noted (3 Greenl. Ev. Pt. VI. chap. 2) : Admissions of a party to the record (or of one identified in interest with him) are admissible in evidence against him, but not against other parties on the same side, unless there is an actual joint interest or privity in design between them ; and the joint interest must be first established, not questioned, and must exist at the time of the declaration and in the capacity represented in the suit. But an admission made after other persons have acquired separate rights in the same subject-matter, cannot be re- ceived to disparage their title, however it may affect that of the declarant himself. A community of interest, as co-execu- tors, is not sufficient. When the confession of any party would be good evidence against another, his answer may be read against the latter. Admissions of any one directly interested in the subject- matter of a suit in which he is represented, although not a party to the record, is admissible as binding his representa- tive in the suit. Admissions of third persons, strangers to the suit, are some- times admissible. The cases appear to be confined to such as involve agency or some kind of representative capacity. In chancery practice admissions by parties should appear COMMISSIONEKS IN CHANCERY. 37 in the bill or answer, or in some special agreement in writing in tlio canse. As to the bill, if sworn to it may perhaps be considered an admission against the plaintiff. It is certainly an admission of the defendant as to all allegations not noticed in the an- swer. As to the answer, all admissions therein, whether tacit or express, may be nsed against the respondent, evpn in case o'f replicati(m denying the truth of the answer, and these ad- missions are conclusive unless mistake is clearly shown ; but it is only the answer of a person sui juris that may be so read. If there be no replication, the answer is to be considered as true throughout. General replication should tiierefore always be entered, and if not formally made, referred to in the, first order or decree at the hearing. After replication, unless answer on oath is waived under section 3281, the an- swer is evidence against the plaintiff as to all matters as to which it is directly responsive to the allegations of the bill, '■^unleas overcome by two witnesses, or at least hy one witness and attendant cir a nn stances^'' or by, circumstances alone suf- ficient to oiitweigh the answer, especially if it be respecting a fact which in the nature of things cannot be within the per- sonal knowledge of the respondent. (9 Craneh, 153.) Admissions by express agreement of parties made in a suit should not be received if against the policy of the law. As to divorce, see Code, section 2260. There are four general rules as to evidence: 1 . Of the relevance of evidence. This is a matter of more difficulty at common law than in equity. In chancery the court will not consider what is ir- relevant; a jury might. As a rule the evidence m.ust correspond with the allegations, and tend to prove the matter in question. It may be direct or circumstantial. 2. Of the substance of the issue. It is sufficient if the substance of the issue he proved. The 38 COMMISSIONEKS IN CHANOERV. rules of common law practice as to matters of essential de- scription are not strictly enforced in chancery pi'actice. 3. Of the burden of proof . The ohUgation of promng any fact lies with the party who suhstantially asserts the affirmative of the issue, even if it be in the form of a negative allegation, as in allegation of in- fancy or insanity, etc., unless the subject-matter he peculiarly within the hipvjledge of the other party, as in case of prosecu- tion for selling without license, etc. 4. The evidence should be the best of which the case in its nature is susceptible, but professional communications, secrets of state, and grounds of awards, etc., are excluded or dispensed with from public policy. As to admissibility of evidence : hearsay, generally not admissil)le; the exceptions, etc., the questions arising are too numerous to be here considered- (See Minor's Insts., Vol. IV., pp. 704-707.) Of the competency of witnesses. See Title V., "Of Summons," etc., for the statutfse men- tioned below. Before the year 1866, interest in the subject-matter of a suit at law, other than interest in costs or in certain fiduciary capacities, was considered to disqualify as a witne s; never- theless, in equity, parties to the record were themselves fre- cpently examined as witnesses, on interrogatories, and by spe- cial order of the court. Incompetency by reason of interest being now removed by statute, Code, sections :534.5 to 3351, except in cases, embraced in sections 3346 to 3349, of hus- band and wife and witnesses to deeds and wills, and where one of the original parties is incapable of testifying, this distinc- tion between competency at law and in equity is done away with. Of the prod((ction of ivitnesses. See Title Vj, " Of Summons," etc., for the statutes men- tioned below. COMMISSIONERS IN CHANCERY. 39 When the desired witness is a party. (See Code, sections 3345, 3350, 3351, 3370, and Title Y.,post.) In general, witnesses "may be summoned and compelled to attend and testify or produce documents in the modes pre- scribed by the Code, sections 3345-'4:6, 3~352-'53, 3354:-'55, 3356-'57, 3359-'60. (See Title V.) If the desired witness requires it, there must be paid to him, a reasonable time be- fore he is required to attend, the allowance of one day's at- attendance and his mileage and tolls. To avoid the inconvenience of producing witnesses, in many cases depositions are allowed, even in eases at law, to prove wills when the witness is non-resident or cannot attend (Code, section 2537), and in any case when properly taken, if, when offered, the witness be dead or out of the State, or one of its judges, or unable to attend, etc., as in Code, section 3365. For depositions out of the State, see Code, sections 3360-'63, 3366. In equity practice the testimony of witnesses for the hear- ing in court is always in writing, and generally in the form of depositipns (see Title VI.); sometimes before a commissioner, acting under an order of reference which does not direct a report of proof, the testimony is not taken in the written form of question and answer, but consists merely of memo- randa of statements made orally by witnesses, the questions being omitted unless desired to be stated. In Virginia the witnesses are examined orally and their testimony is reduced to writing. (2 Eob. Pr., 364.) Of the examinatioti of witnesses. This is to be restricted to facts, and does not include opin- ions or conclusions of a witness, except when examined as an expert. "When a witness has been duly sworn and his competency is settled, if objected to, he is first examined by the party producing him, which is called his direct examination: (1 Greenl. Ev., sec. 434.) In the direct examination it is not 40 COMMI88IONBE8 IN CHANCEKY. allowed to put to him what are tei*med hading questions, which suggest the answer desired, etc., but these are per- mitted if the witness appears to be hostile to the party pro- ducing him, or in the interest of the other party, or unwilling to testify, and when an omission in his testimony is evidently caused by a want of recollection which a suggestion may as- sist. {Ibid., sec. 435.) And the witness may use a writing : 1, To assist his memory and enable him to recall the facts; 2, When though he cannot recall the facts independently he remembers the writing, and that at the time he saw it he knew the contents to be correct; 3, When he neither remem- bers the writing nor awakens his memory to the recollection of a knowledge of its contents, but knowing the writing to be genuine he is thereby enabled to swear positively to the facts. \lbid., sec. 437.) "A party "to the "record called to testify for another, having an adverse interest, may be examined by such other party according to the rules applicable to cross-examination." (Code, sec. 3351.) A party is not to impeach his own witness, if really his own. When a witness has been examined iii chief (that is, after the direct examination,) the other party has a right to cross-examine him as to facts and circumstances connected with the matters stated in his direct examination, and, of course, to ask leading questionsj but if he wishes to examine the witness as to other matters, he can do so only by making him his own and calling him as such at the proper time, or in the discretion of the court having opened the defence with his own witness, he may confirm it by cross-examination of previous witnesses for his adversary. The cross-examination of witnesses may be as to collateral facts, which is not allowed in the direct examination. (1 Greenl. Ev. 445.) After a witness has been cross-examined respecting a statement made by him, the party who called him has a right to re-examine him as to the same matter even if not properly admissible on cross-examination, and to ask all questions proper to elicit an COMMIBSIONEKS IN CHANCERY. 4:1 explanation of the testimony on cross-examination if doubt- ful, but he has no right to introduce new matter not neces- sary for that purpose. {Ibid. 467.) The witnesses of the party on whose behalf the deposi- tions are taken are usually all examined in order, the oppos- ing testimony, if any, being usually under a separate and dis- tinct notice, under which the witnesses are similarly exam- ined, after which the evidence is over, except for rebuttal of new matter introduced in the opposing testimony. In the nature of the ease, the extensive subject-matter of the above title can receive but a brief and imperfect treat- ment in a book so limited in size and purpose as this one. TITLE V. Of Summons, etc., and of Compelling Attendance, etc. 3207. " A notice, no particular mode of serving which is prescribed, may be served by delivering a copy thereof in writing to the party in person; or, if he be not found at his usual place of abode, by delivering such copy and giving in- formation of its purport to his wife or any person found there, who is a member of his family, and above the age of sixteen years ; or if neither he nor his wife nor any person be found there, by leaving such copy- posted at the front door of said place of abode. Any sheriff, sergeant, or con- stable, thereto required, shall serve a notice within his county or corporation, and make return of the manner and time of service; for a failure so to do he shall forfeit twenty dollars. Such return, or a similar return by any other person who verifies it by affidavit, shall be evidence of the manner and time of service." 3215. "An action may be brought in any county or corpo- ration wherein the cause of action, or any part thereof, arose, although none of the defendants reside therein." 3220. " Process from any court, whether original, mesne, or final, may be directed to the sheriff or sergeant of any county or corporation, except that process against a defen- dant to answer in any action ' brought under section thirty- two hundred and fifteen, shall not be directed to an officer of any other county or corporation than that wherein the action is brought, unless it be an action against a railroad, express, canal, navigation, turnpike, telegraph, or telephone company, or upon a bond taken by an officer under autho- rity of some statute, or to recover damages for a wrong, or against two or more defendants^ on one of whom such pro- COMMISSIONEES IN CHANCERY. 43 cess has been executed in the county or corporation in which the action is brought. Process shall be issued before the rule day to which it is returnable, and may be executed on or before that day, except that, if it be to answer in an ac- tion brought under section thirty-two hundred and fifteen, and be executed on the defendant without the county or cor- poration in which the action is brought, it must be executed at least ten days before the return day of such process. If it appear to be duly served and good in other respects, it shall be deemed valid, although not directed to any officer, or if directed to an officer, though executed by any other to whom it might lawfully have been directed. It shall be re- turnable within ninety days after its date, to the court on the first day of a term, or in the clerk's office, to the first or third Monday in a month, or to the first day of any rules, except that a summons for a witness shall be returnable on what- ever day his attendance is desired, and process awarded in court may be returnable as the court shall direct.'" 3224. "Any summons or scire facias may be served as a notice is served under section thirty-two hundred and seven, except, that such process (unless it be a summons for a wit- ness) shall in all cases be served by an officer; and except also, that when such process is against a corporation, the mode of service, shall be as prescribed by the following sec- tion. The clerk issuing such process, unless otherwise di- rected, shall deliver or transmit therewith as many copies thereof as there are persons named therein on whom it is to be served." 3225. " Process against or notice to a corporation ma^y be served as follows : If the case be against a city or town, on its mayor, recorder, or any alderman, councilman, or trustee, of such city or town ; if against a bank, on its president, cashier, treasurer, or any one of its directors; if against a railroad company, on its president, cashier, treasurer, general superintendent, or any one of its dij-ectors; if against some other corporation created by the laws of this State, on its 44: COMMISSIONERS IN CHANOBEY. president, rector, or other chief officer, cashier, treasurer, secretary, or any one of its directors, trustees, or visitors ; if against a corporation created by some other State or country, or in any case, if there be not in the county or corporation wherein the case is commenced, any otlier person on whom there can be service as aforesaid, on any agent of the corpo- ration against which the case is (unless it be a case against a bank), or on any person declared by the laws of this State to be an agent of such corporation ; and if there be no such agent in the county or corporation wherein the case is com- menced, on affidavit of that fact and that there is no other person in such county or corporation on whom there can be service as aforesaid, publication of a copy of the process or notice, once a week for four successive weeks, in a newspaper printed in this State, shall be a sufficient service of such process or notice. When the publication is of process, it shall be made on an order directing the same in the case in which the process issues. The order may be entered either in court or by the clerk of the court at any time in vacation." 3226. " Where any corporation is operated by a trustee or trustees for its own benefit, or for the benefit of its creditors, or by a lessee or lessees, it shall be sufficient in any suit or proceeding against such corporation, its trustee or trustees, lessee or lessees, to serve the process or notice on such trus- tee or trustees, lessee or lessees, or on any one of them ; or on any of their respective agents, if none of said trustees or lessees, reside in the county or corporation wherein the case is commenced. If there be no such agent or other per- son in the county or corporation in which the suit or other proceeding is commenced, upon whom there can be service as aforesaid, publication of the process or notice may be made as prescribed by the preceding section, and such publication shall be equivalent to personal service on such trustee or trustees, lessee or lessees." 3227. " Service on any person under either of the two pre- ceding sections shall be by delivering to him a copy of the COMMI88IONEES IN OHANCEEY. 45 process or notice in the county or corporation wherein he re- sides, or his place of business is, or the principal office of the corporation is located; and the return shall show this, and state on whom and when the service was ; otherwise, it shall not be valid. If the process or notice be served on an agent, or be served in any other county or corporation than that wherein the suit or other proceeding is brought or had, it shall be served at least ten days before the return day of such process or notice. The term ' agent ' as employed in each of the two preceding sections, shall be construed to include a telegraph operator, telephone operator, depot or station agent of a railroad company, and toll gatherer of a canal or turn- pike company." 3228. "In a case against any common carrier (other than a corporation) for a liability as such, any process against or notice to the carrier, may be served on such carrier, or on any agent, or on the driver, captain, or conductor of any vehicle ,of such carrier, in the county or corporation wherein the case is commenced ; and if the carrier be not in said county or corporation, and there be no such agent, driver, captain, or conductor therein, the process or notice shall be sufficiently served by the publication thereof once a week, for four suc- cessive weeks, in a newspaper printed in this State." Sec. 3230. " On affidavit that a defendant is not a resident of this State, or that diligence has been used by or on behalf of the plaintiff to ascertain in what county or corporation he is, without effect, or that process directed to the officer of the county or corporation in which he resides, or is, has been twice delivered to such officer more than ten days before the return day, and been returned without being executed, or that the defendant, in a suit for a divorce from the bonds of matrimony, is under sentence to confinement in the peniten- tiary, an order of publication may be ordered against such defendant. And in any suit in equity, where the bill states that there are or may be persons interested in the subject to be divided or disposed of, whose names are unknown, and 46 COMMISSIONERS IN CHANCERY. makes such persons defendants by the general description of parties unknown, on affidavit of the fact that the said parties are unknown, an order of publication may be entered against such unknown parties. And where in a suit in equity the number of the defendants upon whom process has been served, exceeds thirty, and it appears by the hill, or other pleading, or exhibits filed, that such defendants represent like interests with parties who have not been served with process, the court, or judge thereof in vacation may direct that such parties be proceeded against by order of publication. Every other order of publication under this section may he entered either in court or by the clerk thereof in vacation. In a proceeding by petition, there may be an order of publication in like man- ner as in a suit in equity. Sec. 3231. Every order of publication shall give the abbre- viated style of the suit, state briefly its object, and require the defendants against whom it is entered, or the unknown parties, to appear within fifteen days after due publication thereof and do what is necessary to protect their interests. It shall be published once a week for four successive weeks in such newspaper as the court may prescribe, or, if none be so prescribed, as the clerk may direct, and shall be posted by the clerk, at the front door of the courthouse of the county or corporation wherein the court is held, on the first day of the next county or corporation court after it is entered ; but the court, or the judge thereof in vacation, may, in any case, if the court or judge deem it proper, dispense with such publi- cation in a newspaper. 3232. "When such order shall have been so executed, if the defendants against whom it is entered, or the unknown par- ties, shall not appear within fifteen days after the completion of the execution thereof, the case may be tried or heard as to them ; and no other publication shall be thereafter required, in any proceeding in court, or before a commissioner, or for the purpose of taking depositions, unless specially ordered by the court as to such defendants or unknown parties ; but if they COMMISSIONERS IN CHANCERY. 47 shall be represented by counsel residing in this State, reason- able notice of any proceeding before a commissioner or of the taking of depositions, shall be given to such counsel, or any of them, if there be more than one. Personal service of the summons, scire facias, or notice may be made by toy person not a party tb or otherwise interested in the subject- matter in controversy, on a non-resident defendant out of this State, which service shall have the same effect, and no other, as au order of publication duly executed. In such case, the return must be made under oath, and must show the time and place of such service, and that the defendant so served is a non-resident of this State. Upon any trial or hearing under this section, such judgment, decree, or order shall be entered as may appear just. " 3350. "If any party, required by another to testify in his behalf, refuse to testify, it shall be lawful" for the court, offi- cer, or person before whom the proceeding is pending, to dis- miss the action, suit, or othei- proceeding of the party so re- fuising, as to the whole or any part thereof, or to strike out and disregard the plea, answer, or other defense of such party, or any part thereof, as justice may require." (1865-'66, p. 88, chap. 21.) 3352. "A summons may be issued, directed as prescribed in section thirty-two hundred and twenty, commanding the officer to summon any person to attend on the day and at the place that such attendance is desired, to give evidence before a court, grand jury, arbitrators, umpire, justice, coroner, sur- veyor, notary, or any commissioner appointed by a court. The summons may be issued, if the attendance be desired at a court, by the clerk thereof; if before a grand jury, by the attorney for the commonwealth, or the clerk of the court, at the instance of the attorney for the commonwealth; and in other cases, by any person before whom, or a clerk of the court of a county or corporation in which, the attendance is desired, or if it be desired before a justice, by such or any other justice. It shall express on whose behalf, and in what case or about what 48 C0MMI8SI0NEBS IN OHANCBEY. matter the witness is to attend. This section shall be deemed to authorize a summons to compel attendance before commis- sioners or other persons appointed by authority of another State, but only in case they be citizens of this State, and the summons requires the attendance of a witness at a place not out of his county." ^ 3353. "When it appears by affidavit that a writing or document in the possession of a person not a party to the liiatter in controversy is material, and proper to be produced before a court, or any person appointed by it or acting under its process or authority, such court, or a judge thereof in vacation, may order the clerk of said court to issue a suh- pmna duces tecum to compel such production at a time and place to be specified in the order." 3354. "If any person, after being served with such sum- mons, fail to attend to give evidence, or to produce such writing or document, according to the summons, the court whose clerk issued the summons, or if it was not issued by a clerk of the court, the Circuit or County Court of the County, or the Circuit or Corporation Court of the corporation in which the attendance was desired, or the judge of such Circuit or Cor- poration Court in vacation, or the Cliancery Court of the city of Richmond, or the judge thereof in vacation, where the at- tendance is desired before a person acting under the autho- rity of such Chancery Court, on a special report thereof by the person or persons before whom there was the failure to attend, and on proof that there was paid to him (if it was required by endorsement on the process) a reasonable time before he was required to attend, the allowance for one day's attendance, and his mileage and tolls, shall, after service of a notice to or rule to show cause against it, if none be shown, fine him not exceeding twenty dollars, to the use of the party 1 K. C, 1808, p. 93, 94, sec. 4. R. 0., 1819, p. 498, sec. 40; p. 508, sec. 76; p. 517, sec. 5; p. 519, sec. 8. 1830, pp. 68, 69, sees. 7, 8, 9. C. 1849, p. 663, sees. 20, 26. 1850-'ol, p. 33, sec. 15. 1855-'S6, p. 35, sec. 20. 0. 1860, p. 725, sec. 21. 1870-71, p. 148, sec. 23. C. 1873, p. 1110, sec. 26. 00MMIS8I0NEES IN CHANCEET. 49 for whom he was summoned, and said court or judge may proceed, by attachment, to compel him to attend and give his evidence, or produce such writing or document at such time and place as said court or judge may deem fit. The witness shall, moreover, be liable to any party aggrieved for dam- ages." 3355. "If a person, after being served with such summons, attend, and yet refuse to be sworn, or to give evidence, or to produce any writing or document required, he may, by order of the court whose clei'k issued said summons, or if it was not issued by a clerk, by order of the court or judge having authority to enforce the attendance of the witness under the preceding section, on a special report of the fact by the person before whom such refusal occurs, be committed to jail, there to remain until he shall, in custody of the jailor, give such evidence, or produce such writing or docu- ment." 3358. "In any suit, an affidavit that a witness or party re- sides out of this State, or is out of it, shall be prima facie evidence of the fact, although such affidavit be made by a party, and without previous notice. Where anything is au- thorized or required by this Code or by any statute to be published in a newspaper, the certificate of the editor, or af- fidavit of any other person, shall be admitted as evidence of what is stated therein as to the publication." > 3370. " In a case at law, a party may file in the clerk's of- fice, and in a case or matter before a commissioner of a court, any person interested may file with such commissioner inter- rogatories to any adverse party or claimant. The clerk or commissioner shall issue a summons, directed as prescribed in section thirty-two hundred and twenty, requiring the officer to summon the proper party to answer said interrogatories, and make return thereof within such time, not exceeding sixty days, as may be prescribed in the summons. With the sum- mons there shall be a copy of the interrogatories, which shall be delivered to the person served with the summons, at the 50 COMMISSIONERS IN CHANCERY. time of such service ; if the summons be against a plaintiff who is not a resident of this State, the service may be on his attorney at law," etc., etc' There is no mention made here of the place to which an- swers are to be returned, nor is provision made, as under section 3358, in case of failure to obey the summons, for a special report thereof by the person or persons to whom or to whose office the answers should be returned, but the sta- tute goes on to authorize action by the court if answers are not filed, etc. ; and the fact of failure to answer cam be in- cluded in the matter specially stated, as in Form I^o. 4 of Eeport on Reference. 3371. " In any case at law, a party may file in the clerk's office, and in any case or matter before a commissioner of a court, any person interested may file with said commissioner an affidavit, setting forth that there is, he verily believes, a book of accounts or other writing in possession of an adverse party or claimant, containing material evidence for him, specifying with reasonable certainty such writing, or the part of said book. The clerk or commissioner shall issue a summons, directed as under the preceding section, requiring him to summon the proper party to produce such writing, or an exact copy of such part of the said book, and make return thereof as under that section. With the summons there shall be a copy of the affidavit, which shall be delivered to the person served with the summons at the time of such ser- vice ; if the summons be against a plaintiff who is not a resi- dent of this State, the service may be on his attorney at law." The section goes on, as the preceding one, to authorize the court to compel production, and there is the same omission to mention the place where the writing is to be produced, etc. The above statutes, concerning notice and summons or process, etc., may be considered with reference to the direc- ' 1830-'31, p. . 65, chap. 11, sees. 68, 69. 1841-'42, p. 57, chap. 100. C. 1849, chap. 176, sees. 38, 39. C. 1873, chap. 172, sees. 44, 45. COMMISSIONERS IN OHANCEET. 51 tion or address of the notice or process, the mode of service, and the person or persons on whom it is to be served. A notice is addressed to the person or persons to be af- fected by it, and may be dielivered for service to any sheriff, sergeant or constable, or any other person for service, only if served by a;ny other person than an oflBcer, the return show- ing the time and manner of service by such other person must be verified by his alfidavit. Process or summons for personal service should be directed or addressed to a sheriff or sergeant, but the omission to do so does not render it invalid. Where service is to be by publication, the direction is commonly to the persons to be affected. As to the mode of service, it may be according to circum- stances, by personal service, or its equivalent, posting at the front door, or it may sometimes be by publication, both as to notice and as to process. In general, both notice and process or summons is to be by personal service rather than by publication, except as to non- residents. In regard to the person or persons on whom the notice or process is to be served, they are distinguished as residents or non-residents. of the State, and to be served accordingly in person or by publication ; as private persons, or corpora- tions, or banks, or carriers, and to be served accordingly in person, or through officers or agents; and as parties to the suit or proceeding, or other persons not parties, and, in that respect, subject to the operation of separate and distinct statutes, preserving somewhat distinctions founded on a dif- ference as to their competency as witnesses, in regard to interest in the subject-matter of the suit, etc., distinctions, now much modified, where not done away with. The gen- eral rule at law, that interest disqualified or rendered a wit- ness incompetent, and therefore excluded parties as witnesses, did not obtain in the Chancery Courts. By the Code of 1849, chap. 176, sec. 38, being sec. 44, chap. 172, of the Code of 1873, and section above, 3370, of Code of 1887, provision was 52 COMMIBSIONEES IN CHANOEKY. made for examination of parties to snits at law, and parties in interest in some other proceedings, giving the same benefit of discovery in those cases as was afforded in equity by the methods of tlie Chancery Courts, only restricting the mode of interrogatories, depositions of parties being conditionally provided for under sec. 28, chap. 176, Code of 184:9; sec. 34, chap. 172, Code of 18.73; sec. 3359, Code of 1887. By sec. 39, chap. 176, Code of 1849; sec. 45, chap. 172, Code of 1873, above, and sec. 3371, above. Code of 1887, similar pro- vision was made in regard to production of documents, etc., in the provision of parties to suits at law, etc. "With respect to persons not parties, the mode of procuring testimony of witnesses was prescribed by sees. 20, 22, 23, chap. 176, Code of 1849; sees. 26, 28, 29, chap. 172, Code of 1873, and sees. 3352, 3354, 3355, above. Code of 1887, and the mode of pro- caring production of documents was prescribed by sec. 21, chap. 176, Code of 1849; sec. 27, chap. 172, Code of 1873; sec. 3353, above. Code of 1887. By Acts of 1865-'66, p. 87, 88, chap. 21, tlie general incompetency, by reason of interest, was mostly done away with, some exceptions continuing however, and the mode of evidence being, when so required, prescribed to be ore tenus ; by Acts of 1866-'67, p. 615, chap. 170, the mode ore tenus was limited to actions at law; by the Acts of 1865-66, sec. 3, a dismissal of proceedings or rejection of evidence on behalf of a party refusing to testify was imposed as a penalty in such case ; and by section 4, "A party called to testify for another having an adv«rse interest, may be ex- amined by such party according to the riiles applicable to cross-examination," referring to leading questions, etc. Tlie provisions of these acts are found in the Code of 1873, sees. 21, 22, 23, 24, and Code of 1887, sees. 3345 to 3351, above; but in the Code of 1873, sec. 34, chap. 172, remains appa- rently unaffected. The corresponding section, 3359, of the Code of 1887, is modified to accord with said acts. It would seem that in sec. 27, chap. 172, Code of 1873, and sec. 3353, COMMISSIONEES IN CHANCBKY. 53 Code of 1887, the words not a parly might be omitted in con- sequence of the above enactments, and that sees. 44, 45, 46, of Code of 1873, sees. 3370, 3371, 3372, Code of 1887, might be dispensed with, and a commissioner authorized to issue sum- mons for production of a document. It is to be observed that, under the Code of 1887, the compelling power of the commissioner in chancery is limited to issuing summons, and does not extend to enforcing obedience, as under the Code of 1873, or in some particulars the Code of 1849. In respect to the parties refusing to testify in proceedings before a com- missioner, perhaps under section 3350, the commissioner may dismiss his proceedings, or reject the plea or defense of such party. It is to be noticed that every summons is to "ex- press on whose behalf, and in what case or about what ma,tter the witness is to attend." The summons to a witness should be delivered, with a copy thereof, to some oflScer, within whose county or corporation the witness is expected to be found. The commissioner may deliver the summons to such officer or to the party on whose behalf the witness is summoned, in order that such party may, if he choose, furnish such officer with money to pay, if re-- quired, the allowance of one day's attendance and mileage and tolls. For forms of summons and report in case of failure to obey, see Forms Nos. 8, 9, 10, 11, 12, d3, 14. TITLE yi. Of Administering and Certifying Oaths, and Taking and Certifying Affidavits and Depositions. An oath is a solemn declaration or attestation before an authorized tribunal or oiBcer, made with an appeal to God for the truth of what is so affirmed. An affidavit (Bac. Ab. 146) is an ex parte declaration or statement in writing, signed and made upon oath before an authorized officer. A deposition is not only more formal, but, instead of being ex parte, is taken after notice, on examination, in reply to interrogatories, and subject to cross-examination by cross-interrogatories. Oaths are of two kinds : Oaths of Office, promising to dis- charge the duties thereof, and attesting certain facts prerequi- site; and Oaths of Attestation, to affidavits or depositions of witnesses. 176. "If any person required to take anoath shall declare that he has religious scruples as to the propriety of taking it, he may make a solemn affirmation, which shall in all re- respects have the same effect as an oath." 5, clause 6. " The word ' oath' shall be construed to include an affirmation in all cases in which by law an affirmation may be substituted for an oath, and in the like cases the word 'swear' or 'sworn' shall be construed to include the word 'affirm' or 'affirmed.'" 173. " Any oath or affidavit required by law, which is not of such nature that it must be made in court, may be admin- istered by or made before a justice, and certified by him, unless otherwise provided ; and in any case in which an oath might be administered by or an affidavit made before a justice, the same may be administered by or made before a notary, a commissioner in chancery," ^ etc. 1 1 R. C , 1819, p. 200, chap. 66, sec. 24; p. 214, chap. 66, sec. 84; p. 255, chap. 66, sec. 44; p. 258, chap. 71, sec. 64; p. 300, chap. 83, sec. 2. COMMISSIONERS IN CHANCERY. 55 3356. "Any person before whom a witness is to be exam- ined may. administer an oalih to such witness." 3359. "In any pending case the deposition of a witness, whether a party to the suit or not, may be taken in this State by a justice, or notary public, or by a commissioner in chan- cery ; and, if certified under his hand, may be received with- out proof of the signature to such certificate." A commissioner in chancery uses no seal, and does not cer- tify for other States unless tliere be special authority under the law of such States. The oath should be taken with the hand of the witness or afiiant on the book, usually the Bible or the Holy Evange- lists (the Gospels or the New Testament), for the Jews the Old Testament, for Mohammedans the Koran. The oflBeer administering the oath usually holds the book, and while the witness or affiant also has his hand upon it, recites the pro- per oath, ending with the words, " So help me God," and then says, " Kiss the book," retaining his hold upon it," but so that each witness may comply with the direction. When there are several witnesses to be sworn alike, at the same time, the •officer delivers the book to them, to be so held, or to so many as may conveniently so hold it. The oath usually commences with the words, "You do solemnly swear or affirm" etc. The oath to witnesses in de- positions is as follows : " You shall true answer make to such questions as shall be propounded to you relative to the mat- ter now before me, so help you God." And for affirmations see Henning's Justice, 486-87. See forms for oath of office. No. 15 ; for oath of attesta- tion. No. 16; for affidavit, No. 17; for oath. of witness in depositions. No. 18. ' 1826-'27, p. 19, chap. 20, sec. 1. 1830, pp. 68, 69, chap. 11, sec. 78. 1833, 1834, p. 75, chap. 62, sec. 2. C. 1849, p. 244, chap. 48, sec. 7; p. 664, chap. 176, sec. 24; p. 666, chap. 176, sees. 26, 28. 1859-'60, pp. 139, 140, chap. 40, sec. 26. 1871-72, p. 29, chap. 43, sec. 27. C. 1873, chap. 48, sec. 14; chap. 172, sees. 30, 32, 34. 56 COMMISSIONERS IN CHANOBEY. 3362. " Reasonable notice shall be given to the adverse party of the time and place of taking every deposition," (1874-75, p. 139.) The notice should be given by party or counsel, not by the commissioner, except in matters before a commissioner under a decree of reference, when the commissioner is supposed to give notice to all parties interested in the reference of the time and place of his executing the decree, and "inquiring into the matters and accounts referred thereby." His exam- ination of witnesses in this case requires no further notice. See remarks as to notices generally, and mode of serving them, under Title III., and statutes cited Title V. When the witness appears at the time and place appointed for his deposition or testimony, and is called to the book to be sworn, that is the time for making any objection to his competency as a witness. If any is made, the commissioner will note the objection before swearing the witness, and then usually proceed to administer the oath ; for unless the objec- tion is so plainly evident and conclusive as to be beyond question, it will generally be more convenient for all parties to go on, leaving the decision of the point to the court. The form of and manner of administering an oath to a- witness before a commissioner is given above, p. 55. When the witness is sworn, the examination is commenced and proceeded with as stated under Title lY. Objections made to any question should be made before answer, and all objections whatever to question or answer should be noted by the commissioner as and at the time they are made; but this being done, he will usually proceed, notwithstanding the objection, for the reason mentioned above in reference to swearing of witness. Fbr a form of deposition, etc., see Form No. 19. As before stated, in matters before a commissioner under reference by a decree, he will usually dispense with writ- ing the questions, except where objections are offered to them. 3363. "Whenever any party, on whom a notice to take a COMMISSIONERS IN CHANCERY. 57 deposition should be served, is not a resident of Virginia, the service of such notice on the counsel of such party or on any one of such counsel, if there be more than one, shall have like effect as if it were served upon the party, provided the time between the service of notice and taking the deposition be sufficient for conveying by ordinary^ course of mail a letter from the place of service to the place of residence of the party, and a reply from that place back to the place of ser- vice, and then for the counsel to attend at the place of taking the deposition. In all cases when notice is served on counsel as aforesaid, the court, upon exception being taken, may de- termine whether, under all the circumstances, the notice has been served in reasonable time, and admit or reject the de- position accordingly" (1852; p. 76, chap. 88). 3366. "A deposition, when completed, shall be certified, and returned by the officer taking it, to the clerk of the court wherein the suit or other proceeding, in which the deposition is taken, is pending, or to the commissioner or person before whom it is to be read; and when received, the clerk, com- missioner, or other person to whom' sent, after endorsing thereon the time it was so received, shall file it among the papers of the suit or other proceeding." The commissioner has a further duty in connection with depositions taken before him, viz.: with respect to allowances to witnesses. 3549. "A person, attending as a witness under a sum- mons, shall have fifty cents for each day's attendance, and four cents per mile for each mile beyond ten miles necessarily travelled to the place of attendance, and the same for return- ing,^ besides the tolls at the bridges and ferries which he crosses, or turnpike gates he may pass. On his oath, an en- try of the sum he is entitled to, and for what, and by what party it is to be paid, shall be made by the person before whom the witness attended, A witness sum- moned to attend in several cases, may have the entry made against either of the parties by whom he is summoned ; but 4 58 COMMISSIONERS IN CHANCEKY. no witness shall be allowed for his attendancjs in more than one case at the same time." ' 3550. "The sum, to which a witness is entitled, shall be paid .... by the party for whom the summons issued. The payment shall be on a certificate of the person required by the preceding section to make the entry. The certificate shall express by letters, and not by figures, the separate amounts to which the witness is entitled for his attendance, travelling, and tolls and ferriages which he may have to pay, and the aggregate thereof," etc. Notice, the allowance is to witness attending "under a summons," not to a volunteer. The mileage is allowed only for the distance necessarily travelled. The amount, which is to be fixed by oath, is to be entered, also for what, viz., daily allowance, mileage, tolls, ferriage, also the party by whom it is to be paid. The entry should recite that, as to the said amount or sum, it is made upon the oath of the witness, and for convenience should be made or entered upon the sum- mons. If the summons was for several parties at the same time the witness can have the charge entered against either, but not against more than one, for one or the same atten- dance. For form of entry, seie Form No. 20. The certificate to be given to the witness is to certify his attendance, and specify in letters (or words), not in figures, the amounts and aggregate of his allowances according to the entry. For form of certificate, see Form 21. Before closing the subject of depositions, may be noticed the statute. Code, section 3369, showing: How testimony may he perpetuated. Under this statute the commissioner of a Circuit or Cor- poration Court is directed, after himself giving notice, to take depositions, evidence in writing, on a petition, as he 1 1 B. C, 1819, p. 254, chap. 71, sec. 34; p. 518, chap. 131, sees. 9, and 11 to 14. 1842-43, p. 30, chap. 40, sec. 4; chap. 41, sec. 1. C. 1849, p. 667, chap. 176, sees. 35, 36, 37. 1857-'58, p. 47, chap. 50, sec. 1. C. 1873, chap. 172, sees. 41, 42, 43. OOMMISSIONEES IN CHANCEEY. 59 would in case of a pending si;it, except that the subject-matter is limited by the petition. He is also directed to appoint a guardian ad litem, and to report his proceedings, and return the testimony', and the petition iiled, to the clei-k's oflSce of his court. In other respects he proceeds as above indicated under this Titlg. 3369. "A person' desirous of perpetuating the testimony of witnesses as to a matter in respect to which there is no suit, may file with a commissioner in chancery of a court wherein, if there were a bill to perpetuate the testimony, such bill might be filed, Si petition stating such matter, and what persons may be affected by the testimony. Whereupon, the commissioner shall appoint, for proceeding on the peti- tion, a time and place, whereof reasonable notice shall be given to the persons who may be so affected. If any of them be an infant or insane person, the commissioner shall appoint a guardian ad litem to attend on his behalf. At such time and place the commissioner shall take in writing the evidence of any witnesses adduced in respect to the said matter by the petitioner, or by the person so affected. He may adjourn from time to time, and shall return a report of his proceedings, with the testimony taken by him, to the clerHs office of the court by which he was appointed, and such testimony shall have the same effect as if it had been taken on a bill to perpetuate testimony. Such court may make such order as to the costs as may seem to it right." ' The witness may be compelled to attend, to be sworn or to aifirm, and to give evidence, as mentioned in Title V. For forms, see 8, 9, 10, 11, 12. The report can be framed from Form 4, stating the pro- ceedings to be on petition instead of on reference. A special form is given, No. 22. » • 1 K. C. 1819, p. 216, sec. 102; p. 519, sees. 15, 16, 19. C. 1849, p. 666, sec. 34. C. 1873, p. 1114, chap. 172, sec. 40. TITLE VII. Commutation of Annuities, Dower, etc. In making sale or disposition of real estate, it is pften ne- cessary to ascertain the commuted or present cash value of charges thereon, or interests therein, for a term of years, or for a lifetime, considered as a term of years, estimated as to duration by the tables of expectation of life. The following table shows the present value, on the basis of six per cent, as the rate of interest, of an annuity of one dollar payable at the end of each and every year for any number of years not exceeding forty : TABLE. Years, , Value, 1 ,943 2 1.833 3 •- 2,673 4 3.465: 5 4,212 6 4.917 7 5.582 8 6.210 9 6.802 10 7.360 11 7.887 12 8.384 13 8.853 14 .. 9.295 15 9.712 16 10.106 17 ... 10.477 18 -.: 10.828 19 11.158 20 11.470 Years. Value. 21 11.764 22.. 12.042 23 12.303 24 12.550 25 12.783 26 13.003 27 13.210 28 13.406 29 . 13.591 30 13.765 31 13.92^ 32 14.084 33 14.230 34 14.368 35 14.498 36 14.621 37-. 14.737 38 ...14.846 39 14.949 40 15.046 The table can be applied to an annuity of any amount per annum expressed in dollars and cents for a given number of years, by multiplying such amount by the value given above for such number of years. COMMISSIONERS IN CUANCEEY. 61 The same method can be used to determine the present cash value of a term of years in a sum of money or other property, the yearly interest at six per cent, on the sum of money, or the net yearly proceeds of the property, being considered equivalent to an annuity of similar value, or amount. It is sometimes convenient, when the present cash value in dollars and cents cannot be known at the time, for instance before a sale of property, to estimate the proportion the pre- sent cash value will bear to, or its percentage of, the value of the whole amount of property in which the term is, or which is subject to the right of ownership or enjoyment for such number of years. This can readily be done in all of the above cases, by multiplying the value in the table, for such number of years, by six. When the interest or estate in the money or other property is not a right for a fixed number of years, or a term in such pro- perty, but a life estate, then before the present cash, or com- muted, value of such interest or estate can be estimated it is necessary to estimate the number of years for which such life estate is likely to endure. This period of duration, called the expectation of life, varies according to circumstances, principally according to age. TJie expectation of life for every age is shown by a number of tables differing somewhat according to locality, etc. Applying one of these tables, in case of a life estate at any age, and using the corresponding term, or number of years, obtained therefrom in connection with the annuity table, as above indicated, will give the esti- mated present cash value of such life estate, in any money, or other property. The result will be according to the table of expectation of life that is used. Tlie Legislature has adopted a table or rate of expectation of life to govern such estimates in certain cases, but instead of prescribing a table of expectation of life, to be used in con- nection with the table above given, it has combined the two tables and presci'ibed the table below, giving the age of the 62 COMMISSIONEES IN CHANCERY. life-tenant or owner, etc., and the corresponding value, omit- ting the expectation of life and number of years used in the estimate. The method of using the table is similar to the methods indicated above in respect to the table given above, substituting the age for the number of years. STATUTORY TABLE," Slioioing the present vcUue on the basis of six per cent, interest of an annuity of one dollm; payable at fhe end of every yea/i' that a person of a gvoen age may he liiring for the ages therein stated. Age. Present Value. Age. Present Value. Age. Present Value. Age. Present Value. f 10. 439 26 il3 368 52 $10,208 78 $4,238 1 12.078 27 13.275 53 9.988 79 4.04O 2 12.925 28 13.182 54 9.761 80 ■ 3.858 3 13.652 29 13.096 55 9.524 81 3,656 4 14.042 30 13.020 56 9.280 82 3.474 5 14.325 31 12.942 57 9.027 83 3.286 6 14.460 32 12 860 58 8.772 84 3.102 7 14.518 38 12.771 59 8.529 85 2.909 8 14.526 34 12.675 60 8.304 86 2.739 9 14.500 35 12.573 61 8.108 87 2 599 10 14.448 36 12.465 62 7.913 88 2.515 11 14.384 37 12.354 63 7.714 89 2.417 12 14.321 38 12.239 64 7.502 90 2,266 13 14.257 39 12.120 65 7.281 91 2.248 U 14.191 40 12.002 66 7.049 92 2 337 15 14.126 41 11.890 67 6.803 93 2.440 16 14.067 42 11.779 68 6.546 94 2.492 17 14.012 43 11.668 69 6.277 95 2.522 18 13.956 44 11.551 70 5.998 " 96 2.486 19 13.897 45 11.428 71 5.704 97 2.368 20 13.835 46 11.296 72 5.424 98 2.227 21 13.769 47 11.154 73 5.170 99 2 004 22- 13,697 48 10.998 74 4.944 100 1.596 23 13.621 49 10.823 75 4,760 101 1.175 24 13.541 50 10 631 76 4.579 102 0.744 25 13.456 51 10.422 77 4.410 103 0.314 If the values in the above tables be multiplied by six, the result will show the percentage, or proportion, borne by the present cash value, of the life interest, in the whole of any property, to the total value or amount of such property. In the case of dower the multiplication should be by two only (one-third of six), the dower interest being one-third. ' Code of 1887, section 2281; Acts 1877-78, chap. 263, p. 246; 2 Eob. 384. COMMISSIONERS IN CHANCERY. 63 By the Code of Virginia, section 2282, the rule for com- puting the present vahie of the life estate or annuity is as follows : "Calculate the interest at six per centum upon the sum to the income of which, or upon the value of the property to the use of which the person is entitled. Multiply this interest by the present value of an annuity of one dollar, as set oppo- site the person's age in the table, and the product is the gross value of the life estate of such person therein." The Code gives examples. The above estimates of values of annuities contain an ele- ment of uncertainty due to the contingency attending the probable duration of any particular lifetime, but it is re- duced to a minimum, and never approaches the extreme of absolute failure. There is always a positive existing value in case of a vested annuity in actual operation. In respect, however, to contingent annuities to commence as to enjoyment in futuro, subject to the happening or not happening of some event- which may never occur, there is no certain absolute existing value; but estimates have been made and tabulated, based on the doctrine of chances or pro- babilities, giving conjectural values in such cases. Such a table has been made, showing the conjectural value of the contingent right of dower, or during the life of both husband and wife. It will be found on page 11 of the Quarterly haw Jou7'7ial, for January, 1858, published at Richmond, Va., and is based upon the Carlisle table of mortality. It is given below, for convenient reference, with an explanatory note. 64 COMMISSIONERS IN OHANOEEY. TABLE Showing the present value in dollars and cents, at various respective ages of hus- band and wife, of a contingent right of dower in real estate of the fee-simple value o/flOO ; which present value represents, also in the form of a percentage, the value of alike contingent right as to real estate of any fee-simple value. AGE. 22 26 30 32 34 36 38 40 42 44 46 48 50 52 16. _. 3.68 4.10 4.58 4.85 5.14 5.43 5.73 6.06 6.42' 6.81 7.25 7.74 8.42 9.18 18... 3.57 3.99 4.51 4.76 5.03 5.29 5.65 5.99 6. 35 1 6.73 7.08 7.57 8.21 8.96 20._- 3.45 3.88 4.38 4.64 4.92 5. IS 5.49 5.86 6.2216.60 6.90 7.38 8.00 8.74 22... 3.33 3.77 425 4.46 4.74 5.00 5.33 5.69 6.03 6.43 6.72 7.19 7.79 8.52 24... 3.2^ 3.65 4.11 4.32 4.57 4.85 5.17 5.52 5.85 6.18 6.54 6.99 7.58 8.30 26... 3.12 3.53 3.97 4.18 4.42 4.70 5.01 5.35 5.60 5.98 6.36 6.79 7.37(8.08 28... 3.01 3.41 3.83 4.03 4.26 4.54 4.84 5.17 5.47 5.78 6.17 6.59 7.15 7.85 30... 2.90 3.28 3.69 3.88 4.10 4.38 4.66 4.99 5.28 5.58 5.96 6.38 6.93 7.61 32... 2.79 3.15 3.55 3.73 3.94 4.21 4.48 4.80 5.09 5.38 5.74 6.16 6.70 7.36 34-.. 2.68 3.02 3.40 3.57 3.78 4.03 4.30 4.60 4.88 5.17 5.51 5.92 6.45 7.10 36... 2.56 2.89 3.25 3.41 3.61 3.85 4.11 4.40 4.66 4.94 5.26 5.66 6.18 6.83 38... 2.44 2.76 3.10 3.25 3.44 3.67 3.92 4.19 4.44 4.70 5.00 5.39 5.90 6.53 40... 2.32 2.62 2.95 3.09 3.27 3.49:3.72 3.98 4.22 4.46 4.74 5.11 5.61 6.22 42... 2.20 2.48 2.79 2.93 3.10 3.30' 3.52 3.76 3.99 4.22 4.48 4.83 .5.31 5.90 44... 2.07 2.34 2.63 2.76 2.92 3.1l!3.32 3.54 3.75 3.98 4 22 4.55 4.99 5.57 46... 1.94 2.21 2.47 2.59 2.73 2.92'3.12'3.32 3.50 3.71 3.96 4.26 4.67 5.22 48.-- 1.85 2.10 2.31 2.42 2.54 2.76 2.91^3.10 3.25J3.44 3.71 3.97 4.35 4.85 50..- 1.71 1.92 2.15 2.24 2.35 2.56 2.71 2.87 3.00 3.17 3.49 3.75 4.03 4.48 52--- 1.54 1.74 1.95 2.06 2.18 2.31 2.45 2.60 2.7612.90 3.18 3.46 3.78 4.12 54... 1.40 1.58 1.77 1.87 1.97 2.08 2.21 2.34 2.48 2.63 2.81 3.05 3.37 3.77 56... 1.30 1.44 1.61 1.70 1.79 1.89 1.99 2.10 2.22 2.35 2.50 2.72 3.00 3.36 58... 1.17 1.32 1.48 1.56 1.64 1.72 1.81 1.90 2.00 2.11 2.24 2.39 2.59 2.87 60... 1.03 1.17 1.32 1.40 1.48 1.56 1.65 1.74 1.84 1.95 2.07 2.20 2.35 2.57 62... 0.91 1.03 1.16 1.23 1.30 1.37 1.45 1.54 1.63 1.73 1.85 1.99 2.17 2 38 64.-- 0.82 0.92 1.03 1.09 1.16 1.23 1.30 1.37 1.44 1.51 1.61 1.75 1.93 2.15 66... 0.74 0.82 0.92 0.97 1.02 1.08 1.13 1.19 1.25 1.31 1.37 1.47 1.63 1.85 68.-- 0.65 0.73 0.82 0.86 0.91 0.96 1.01 1.06 1.10 1.15 1.20 1.25 1.36 1.54 70... 0.54 0.62 0.70 0.74 0.78 0.83 0.87 0.92 0.97 1.02 1.07 1.12 1.17 1.27 72... 0.44 0.50 0.57 0.61 0.65 0.69 0.73 0.77 0.81 0.85 0.90 0.96 1.03 1.11 74... 0.38 0.43 0.49 0.52 0.55 0.58 0.61 0.64 0.68 0.71 0.75 0.86 0.89 0.98 76-.. 0.35 0.38 0.42 0,45 0.48 0.51 0.53 0.56 0.58 0.60 0.63 0.67 0.73 0.82 78... 0.30 0.34 0.38 0.40 0.43 0.45 0.47 0.49 0.50 0.52 0.53 0.55 0.60 0.68 80.-- 0.24 0.28 0.32 0.34 0.36 0.38 0.41 0.43 0.44 0.46 0.47 0.48 0.50 0.55 82.. 0.20 0.22 0.25 0.27 0.29 0.32 0.34 0.36 0.38 0.40 0.41 0.43 0.45 0.47 84... 0.17 0.18 0.21 0.23 0.24 0.25 0.27 0.29 0.30 0.32 0.34 0.37 0.40 42 86... 0.14 0.16 0.18 0.19 0.20 0.21 0.22 0.23 0.25 0.26 0.27 0.29 0.32 0.36 88... 0.13 0.15 0.17 0.18 0.19 0.20 0.21 0.21 0.22 0.22 0.23 0.24 0.26 0.30 90... 0.11 0.13 0.15 0.16 0.17 0.18 0.19 0.20 0.21 0.21 0.22 0.22 48 0.23 50 0.25 22 26 30 32 34 36 38 40 42 44 46 52 The top and bottom lines of figures, commencmg 22, 26, 30, etc., represent the age of the husband ; the outer vertical column of figures on the left, 16, 18, 20, etc. , represent the age of the wife. To find the value in any case, look in the vertical column corresponding to the age of the husband, say 40, up or down, for the figures on the horizontal line opposite to the number, say 28, corresponding to the age of the wife ; the figures so formed will re- present the value, say $5. 17 for an estate valued at $100, or the percentage . for an estate of whatsoever value . COMMISSIONERS IN CHANCERY. 65 T A B L E— Continued. Showing the pi'esent value in dollars and cents, at iiarious respective ages of hus- band and wife, of a contingent right of dower in real estate of the fee-simple value 0/ $100 ; which present value represents, also in the form of a percentage, the value of a like contingent right as to real estate of any fee-simple value. Age. 54 ae 58 11.62 60 62 64 66 68 TO 12 74 76 19.27 80 20.78 84 16.. 9,93 10.69 12.48 13.20 13.86 14.67 15,63 16.62 17.74 18.53 22 10 18.- 9.71 10.51 11,40 12.24 12.96 13.63 14.45 15.39 16 41 17.61 18.31 19.03 20.48 21.86 20.. 9.19 10.30 11.18 12 03 12.72 13.40 14.22 15.15 16 18 17 26 18.08 18.78 20 18 2162 22.. 9.27 10.09 10 95 11.80 12.48 13.17 13,98 14 90 15.93 16 99 17.86 18 56 19.87 2134 24-. 9.05 9.86 10.71 11,56 12.23 12 94 13.73 14 63 16.66 16.74 17,60 18 25 19.67 2105 26.- 8.83 9.62 10.47 11.30 11.97 12.69 13.46 14,35 15.37 16.46 17.34 17,96 19.26 20,77 28.. 8.60 9,37 10.22 11.03 11.70 12 42 13,18 14 05 15.06 16.15 17.06 17.66 18.96 20 47 30.. 8.35 9.11 9,96 10.76 11.42 12.13 12,88 13 74 14 74 16.82 16.75 17.34 18 66 20.14 32- 8.08 8.84 9,69 10.46 11.13 11.82 12.57 13.42 14.41 15.48 16.40 17.00 18.32 19 78 34- 7.80 8 56 9.40 10.15 10.82 1150 12.26 13,09 14.07 15.12 16 01 16.65 17 96 19.39 36.- 7 61 8.26 9 08 9.82 10 49 11,16 11.92 12.76 13.71 14.74 16 62 16,28 17 67 19 00 38-. 7.21 7.95 8.75 9.48 10.13 10.80 11,67 12,39 13.33 14.34 15.22 15.89 17 16 18 69 40— 6.89 7.62 8 41 9,13 9.76 10.42 11.19 12,00 12 93 13.93 1480 15.47 16.72 18 16 42- 6.56 7 27 8 04 8,76 9.37 10.02 10.78 11.68 12.50 13.52 14 37 15.03 16,26 17.70 44.- 6.21 6.91 7.65 8.37 8.96 9.60 10.34 11,13 12.04 13.08 13 92 14 66 15 76 17 22 46.. 5.84 6.53 7.26 7.95 8.62 9.16 9,87 10.65 11,54 12.69 13.62 14.06 15.22 16.70 48— 6.45 6.10 6 84 7,4'< 8.04 8.66 9.37 10.16 Jl.OO 12.03 12.79 13 50 14.66 16.10 50.. 6.05 5.64 6.17 7,01 7.62 8.12 8.83 9.61 10.43 11.39 11.90 12,87 14 05 15.41 52.. 4.63 5,22 6.56 6 22 6.97 7 54 8.24 9.02 9.8S 10.68 11.27 12 16 13.32 14 63 54- 4.21 4.78 5.18 6 72 6.30 6.92 7 69 8,37 9.18 9.97 10 72 ]1S7 12 81 13 77 56- 3.80 4.30 4.81 6.33 5 85 6.37 6.89 7.68 8.48 9.26 9,6i 10.50 12 01 13 12 68— 8.27 3.79 4.39 4 96 5,50 6 00 6.46 6.89 7.77 8,56 8.64 9.37 10 90 12 06 60-- 2 89 3,31 3.83 4.41 4,% 5.47 6.98 6.48 6 98 7.86 8.08 8 69 9 99 11.23 62- 2.64 2.97 3 36 3.82 iM 4.87 .5.43 6,00 6.57 7.16 7,72 8,28 9 36 10 37 64— 2.41 2.70 3.03 3.39 3 78 4 22 4.71 6.25 6,84 6 47 7,14 7.76 8.84 9.70 66.. 212 2.43 2.74 3.06 3,30 3.74 4 12 4,65 6,04 5 60 6.22 6.88 8 05 9,02 68- 1.79 2,U9 2.44 2.77 3.07 3.38 3,69 4 02 4,39 4.82 5,32 6 89 7.08 8.08 70— 1.43 1.67 1,98 2 36 2.70 3.01 3.3i 3 65 3,94 4 27 1.65 5.09 6.16 7 12 72.. 1.22 1.36 1.67 1.8S 2.17 2.60 2.84 3 18 3 53 3 88 4.24 4 61 6.38 6.23 74-- 1.08 1.20 1.35 1.64 1.77 2 03 2.33 2,67 3 06 3.43 3.77 4.11 4.80 6 49 76.. 0.94 1.09 1.26 1.42 1.S9 1.76 1.94 2,16 2,43 2.76 3.15 3 60 4.35 5U3 78.. 0.79 0,94 1.12 1,29 1 45 1.60 ).76 1.90 2 08 2,31 2 61 2.98 3.78 4 46 80— 0.64 0.77 0.94 1.10 1.26 1.41 1.66 1.71 1,87 2.06 2,28 2 64 3 20 3 86 82.. 0.62 60 71 0.84 1.00 1,16 1.33 160 1.68 1.87 2.07 2.29 2 75 3.28 84— 0.46 11.60 0.58 0,68 0.79 90 1.03 1.18 1.36 1.57 1.81 2.04 2 45 ■2.80 86- 0.40 45 51 0.58 0,66 0.74 83 0.94 1.08 1 25 1.44 16G 2,09 2 48 88.- 0.35 0,41 48 0.56 0.62 69 0.76 0.83 92 1.04 1.20 139 1,79 2.17 90.. 0.29 0.35 42 0.51 60 0.68 64 0.75 66 0.81 0.87 0.96 1.08 123 1.57 1.92 54 56 58 60 62 68 70 72 74 76 80 84^ The top and bottom lines of figures, commencmg 54, 56, 58, etc. , represent the age of the husband, the outer vertical column of figures on the left, 16, 18, 20, etc. , represent the age of the wife. To find the value in any case, look in the vertical column corresponding to the age of the husband, say 60, up or down, for the figures in that column on the horizontal line opposite to the number, say 60, corresponding to the age of the wife ; the figures so found represent the value ($4.41) for an estate valued at f 100, or the percentage for an estate of whatever value. TITLE YIII. Interest and Partial Payments. The legislation in regard to interest prior to the Code o£ 1849 is mentioned therein in a note, pages 575-76, to sec- tion 4, chapter 141. The subsequent legislation is shown he- low, and the present condition of the law. 2817. "Legal interest shall continue to be at the rate of six dollars upon one hundred dollars for a year, and propor- tionally for a greater or less sum, or for a longer or shorter time; and no person upon any contract shall take for the loan or forbearance of money or other thing above the value of such rate." Section 4, chapter 141, Code 1849, and Code 1860; as to words "other thing," compare 1 K. C, p. 373, sec. 1, "wares, merchandise, or other commodity," "or goods." ^ 2818. "All contracts and assurances made, directly or in- directly, for the loan or forbearance of money or other thing, at a greater rate of interest than is allowed by the preced- ing section shall be" ("void," sec. 5, chap. 141, Code 1849,) "deemed to be for an illegal consideration as to the excess beyond the principal atnount so loaned or forborneP (Acts 1872— '73, p. 329, cjiap. 336; 1874, chap. 122, pp. 134, 135.) 2819. "A bank may take interest on its loans and discounts at the rate of one-half of one per cent, for thirty days, and the interest may be received in advance." (See Code 1849, chap. 58, sec. 16; Code 1860, sec. 33; Code 1849 and 1860, chap. 59, sec. 6; and Code 1887, sec. 1179.) 2820. "Any licensed banker or broker, and any corporation authorized by law to make loans or to purchase or discount bonds, bills, notes, or other paper, may loan money, or dis- count bonds, bills, notes, or other paper, at a rate of interest ' 1869-70, chap. 19, p. 19. 1872-73, chap. 336, p. 329. 1874, chap 122, pp. 134, 135. COMMIBSIONEES IN CHANCEKY. 67 not exceeding one-half of one per cent, for thirty days, and may receive such interest in advance." (See Code 1849, chap. 58, sec. 16, and Code 1860, sec. 33, and Code 1849 and Code 1860, chap.- 59, sec. 6, and Code 1887, sec. 1179.) By section 2, page 374, 1 R. C, and by section 11, page 577, chapter 141, Code 1849, "If a person take for the loan or forbearance of money or other thing, interest at a greater rate than is allowed by law, he shall forfeit double the value of such money or other thing, and the informer shall have one-half of what is so forfeited." But this law was repealed by Acts 1869-70, chapter 19, section 5, page 20. 2821. "Any defendant may plead in general terms that the contract or assurance on which the action is brought was for the payment of interest at a greater rate than is allowed by law, to which plea the plaintiff shall reply generally, but may give in evidence, upon the issue made up thereon, any matter which could be given in evidence under a special replication. Under the plea aforesaid, the defendant may give in evidence any fact showing or intending to show that the contract or assurance, or other writing upon which the action was brought, was for an usurious consideration" (Code 1849, sec. 6, chap. 141); '■'■and vihen no such plea is made, if the contract or assurance he in writing, and usurious interest he provided for therein, judgment shall he rendered for the principal sum only." (Acts 1874, chap. 122, p. 135, sec. 8.) 2822. " Any borrower of money or other thing, may ex- hibit a bill in equity against the lender, and compel him to discover, upon oath, the money or other thing really lent, and all bargains, contracts, or (other) 'shifts relative to such loan and the interest or consideration of the same; and if it appear that more than lawful interest was reserved, the lender shall recover only his principal money or other thing, without interest, and pay the costs of suit.' " (Code 1849, chap. 141, sec. 7.) " If property has been conveyed to secure the pay- bo COMMISSIONERS IN CHANCERY. ment of the debt and a sale thereof is about to be made, or is apprehended, an injunction may be awarded to prevent such sale pending the suit." (See Code 1849, 1860, sec. 10, being sec. 12, Code 1873, chap. 137.) 2^23. "If an excess beyond the lawful interest be paid in any case, the person paying the same may, in a suit brought within one year thereafter, recover it from the person with whom the contract was made or to whom the assurance was given ; and it may be so recovered from such person, notwith- standing the payment of the excess be made to his endorsee or assignee." (Code 1 849, sec. 8.) This section was repealed by Acts 1874, chapter 122, pages 134, 135, but has been re- stored to the Code. 2824. "Any judgment creditor who- apprehends that he is in danger of loss, by reason of usurious dealings on the part of his debtor, may exhibit his bill in equity, verified by affi- davit, against the party with whom the dealings were had, and compel him to discover, on oath, all bargains, conti'acts, or shifts relative to such dealings ; and if it appear that more than legal interest has been received, the excess above that rate, or so nmch thereof as may be necessary, shall be applied to the satisfaction of the plaintiff's demand. Such bill shall be filed within five years after the receipt of the illegal in- terest." (Code 1849, sec. 9.) 2825. "No corporation shall, by way of defence or other- wise, avail itself of any of the provisions of the preceding sec- tions of this chapter, to avoid or defeat the payment of any interest which it has contracted to pay; nor shall anything contained in any of said sections be construed to prevent the recovery of such interest, though it be more than legal in- terest, and though that fact appear on the face of the con- tract." (See Acts 1855-'56, p. 82, chap. 96, Code 1860, chap. 57, sec. 38, and Acts ]872-'73, chap. 213, p. 194.) 2826. " Nothing in the act of incorporation of any insur- ance, banking, or otlier corporation, shall be construed as giv- ing authority (unless expressly given) to charge, take, or re- COMMISSIONERS IN CHANCERY. 69 ceive, for the loan or forbearance of money or other thing, more than the legal rate of interest." (Acts 1866-'67, chap. 161, p. 604, Code 1873, chap. 57, sec. 40.) Sainmary Showing the State of the Laxo. The legal rate of interest is six per centnm per annum, and proportion ably. Banks, etc., are allowed to charge discount in advance. But since Acts 1855-'56, page 82, chapter, 96, these sta- tutes are not to prevent the recovery from corporations of interest contracted to be paid at more than the legal rate. Nor since the Act of 1866-67, page 604, chapter 161, shall any act of incorporation be construed, as giving authority (unless expressly given) to any corporation to charge, take, oi" receive more than the legal rate of interest. By Acts 1869-'70,page 19, chapter 19, and page 56, chapter 46, section 4, from the constitution adopted 6th July, 1869, it was lawful to receive any rate of interest up to Act 1872-73, page 329, chapter 336, not exceeding twelve j>er cent, per an- num, and up to Acts 1874, chapter 122, page 134, not ex- ceeding eight per cent, per annum, agreed upon by the origi- nal parties to the contract, and specified in the bond, note, or other writing evidencing the debt. Up to Acts 1872-'73, page 329, chapter 336, contracts, etc., at a- greater than legal rate of interest were void. Since that act and up to Act 1874, chapter 122, such a contract was void as to such interest in excess of six per cent, per annum, and since the Acts of 1874, the contract shall be deemed to be for an illegal consideration as to the excess beyond the principal amount loaned, etc. (30 Grat., 830). Correspond- ing pleas of usury were allowed in a suit at law, and since 1874, even without a plea, judgment on a contract showing usury on its face is to be for the principal sum only. And np to the Act of 1874, if any excess was paid beyond lawful interest the sum might be recovered in a suit brought within one year thereafter from the person with whom the contract 70 COMMISSIONERS IN CHANCEEY. was made, etc. This provision is restored by section 2823 above. Even in equity a bill of discovery may be filed by the bor- rower, and if it appear that more than lawful interest was reserved, the lender shall recover his principal only, without interest, and pay the costs of the suit. And in case of pro- perty conveyed to secure payment, an injunction may be awarded to prevent sale pending the suit, but up to the Code 1887, under a bill not for discovery, but for injnnction, the same relief is prescribed as if the party claiming under the conveyance had resorted to the court. Even any judgment creditor of the borrower may file a bill of discovery verified by affidavit against a usurious lender, and have the excess of interest, or so much as is necessary, ap- plied to the satisfaction of his demand. The section 2, page 374, 1 E.. C, and section 11, page 577, chapter 141, Code 1849, imposing a penalty of forfeiture for violation of the law, was repealed by Acts 1869-'70, chap- ter 19. Partial Payments. Except as to a guardian and in similar cases, and except as to banks of discount, etc., interest upon interest, of a debt, or compound interest, is not generally allowed. (4 Ran., 406.) On the other hand, in the case of partial payments by a debtor, constituting a part only of the debt due, the payment is to be applied first to interest due, and the excess only, if any, to reduction of the principal. The practice of charging interest on the items of both sides of a running account, or averaging interest, however satisfactory and sufficient when agreed upon and put in practice, cannot be required. The rule above is settled as the correct one. (4 H, & M., 431.) As componnd interest is not allowed, it is not worth while to credit any payment or payments of a sum less than the inter- est due at the time, until the aggregate of such payments equal or exceed the interest due. The rule above mentioned is put in practice as follows: C0MMISSI0NEE8 IN CHAifCEET. 71 Add to the principal the interest thereon up to the date of the first payment that is equal to interest due at the time, or that with previous unapplied payments aggregates as much as the interest then due. From the amount of such princi- pal and interest added, deduct such payment or payments made up to said date, and the residue will be the balance of principal to bear interest from that date, aiid so on. PART 11. TITLE IX. Commissioner of Accounts. Chapter 128 of the Code of 1873, embraces the comple- tion, by Act of July 11, 1870, of a system of enactments providing for a return of inventory and accounts of sales, and the yearly accounting, by fiduciaries, as to estates and trusts under their control, and for inspection of their bonds, etc., and thereby, so far as may be, securing the proper care and management of such estates or trusts, and preventing mistake or error arising from delay and want of attention, without imposing any difficult or needless formalities upon the fidu- ciaries, requiring only the inventory, etc., and the statement of receipts and disbursements, with vouchers, that ordinary prudence and judgment would dictate. The plan also em- braces a simple, and generally an inexpensive, method of sub- jecting these transactions to the inspection and approval of a competent coijrt, without suit, and the placing an account of them on record to avoid subsequent dispute. The execution of the plan is largely dependent upon the attention the court may choose to give to this matter. The performance of the duty of supervision imposed upon the commissioner, or any failure therein, is readily perceived by the court, and easily controlled. The performance of such duty in many cases requires the supporting action of the court. The fiduciary becomes such, after appointment, on qualifi- cation, by giving bond, and as personal representative, by COMMISSIONERS IN CHANCERY. 73 taking oath as well. (1 R. C. chap. 104, sees. 21, 35; chap. 108, sec. 5; Acts 1824-'25, chap. 9; Code 1887, sees. 177, 2636, 2637, 2638, 2640.) His duties are — To collect, and get in all the estate subject to his authority. To make return of inventory of all the estate within four months after his qualification, and' perhaps of further inven- tory. To cause an appraisement to be made of the estate of a decedent. To make return of "account of sales" of any property sold by him. To make proper disposition of said estate, in connection with the care of any person committed to his custody, and to make yearly exhibits of all moneys received and disbursed by him, with vouchers for the disbursements. 2638. "The oath of an executor, or of an administrator with the will annexed, shall be that the writing admitted to record contains the true last will of the deceased, so far as he knows or believes, and that he will faithfully perform the du- ties of his oflSce to the best of his judgment." 2640. " Before any grant of administration, as of the estate of an intestate, the person to whom it is granted shall, in the court granting it, give bond, and take an oath that the de- ceased left no will, so far as he knows, and that he will faith- fully perform the duties of his office to the best of his judg- ment. If a will of the decedent be afterwards admitted to record, or if, after administration is granted to a creditor, or other person than a distributee, any distributee who shall not have before refused, shall apply for administration, there may be a grant of probate or administration, after i-easonable no- tice to such creditor or other person, in like manner as if the former grant had not been made ; and the said former grant shall thereupon cease." 2671. " The judge of each court having jurisdiction of the probate of wills and granting administration on estates of de- 6 74 COMMISSIONERS IN OHANOEEY. cedents, shall appoint a commissioner of accounts, who shall have a general supervision of all fiduciaries admitted to qualify in said court, and make all ex parte settlements of their ac- counts. The said commissioner shall obtain from the clerk of his court, within twenty days after each term thereof a list of the fiduciaries authorized to act as such under orders entered at the said term, and examine as to each fiduciary, whether he has given such bond as the law requires; and, if it appear that he has given n,o bond, or that his bond is de- fective, shall make report thereof to his court at its next term. He shall enter in separate columns in a book to be kept by him and called the ' Record of Fiduciaries,' first, the name of every such fiduciary ; second, the name of the de- cedent for whose estate he is the representative; third, the name of the living person for whom he is guardian, curator, or committee; fourth, the penalty of his bond; fifth, the names of his sureties ; sixth, the date of the order conferring his authority; seventh, the date of any order revoking his authority ; eighth, the date of the return of every inventory of the estate ; ninth, the date of each settlement of the ac- counts of such fiduciary; and shall index the said book in the name of the decedent or person represented by such fidu- ciary. The clerk of the court shall certify to the said com- missioner, within twenty days after each term of the court, the revocation of the authority of every such fiduciary. Any commissioner failing to make such entry, or any clerk to cer- tify such revocation, for ten days after the time herein pre- scribed, shall for every such failure, forfeit twenty dollars." ' 2672. " All executors, administrators, or other fiduciaries who, under enactment of the late Secession government of the State of Virginia, qualified and gave bond in other coun- ' 1 K. C, 1819, chap. 104, p. 379; sees. 21, 35, 37 to 41; chap. 108, p. 406, sec. 5; p. 408, sees. 10, 11. 1824-'25, p. 10, chap. 8, sees. 1, 2, 9; p. 14, chap. 9, sees. 1, 2, 3. 1842-'43, p. 22, chap. 18, sec. 1. 1848-'49, p. 547. sec. 6. 0. 1849, chap. 132, sec. 1. 1866-'67, p. 902, chap. 1, sec. 1. 1869-'70, p. 442, sec. 1. 1871-72, p. 335, sec. 1. COMMISBIONBES IN CHANCBEY. 75 ties or corporations than those in which they would have quali- fied but for certain disabilities in said enactments set forth, shall obtain a certificate of such qualification and a proper copy of their official bond and any account they may have settled, and shall cause them to be recorded in tlie county or corporation in which they should have qualified under the law as it existed on the seventeenth day of April, eighteen hun- dred and sixty-one; and hereafter said fiduciaries shall settle their accounts and the same shall be recorded, and all pro- ceeding against them shall be had, in the last mentioned courts." (1866-'67, chap. 101, p. 902.) 2682. " The clerk of each court shall furnish to the com- missioner of accounts of said court a suitable record book and other such books as may from time to time be needed, which shall be paid for as other books used for public records ; and whenever a commissioner shall cease to act as such, the said books shall be delivered to his successor." (1869-70, p. 444, sec. 2.) The commissioner so appointed should of course be a good accountant (3 Leigh, 364), as well as a good commissioner in general, for the statute provides, " who shall have a general supervision of all fiduciaries admitted to qualify in said court, and make all ex parte settlements of their accounts." In these settlements, csS^lq^- ex parte because usually made up on the statement of' one party, and not like a suit, after a hear- ing of others concerned, there may arise some of the most difficult matters that are referred by decree in a suit, in re- spect to annuities, rents, legacies, interest, dower, and thirds, curtesy, distributions, guardianship, etc. The general supervision is a broad expression, and proba- bly covers all matters not left entirely to the discretion of the fiduciaries, such as the management of property, etc., and may authorize the requiring information as to them. Even if the expression had been limited by any "as hereinafter provided^'' or the like limitation, tlie authority would be com- prehensive. 76 COMMISSION BK8 IN CHANCERY. What are the Specified Duties of the Commissioner of Accounts. 1 . To keep the record of fiduciaries prescribed by section 2671, and to make the entries therein prescribed by sections 2671, 2673, 2678, and to report when no bond, or a defec- tive bond, has been given. 2. To inspect the inventories and accounts of sale returned to him under sections 2673, 2674, and the appraisements under section 2647, and if they are in proper form to ap- prove them and make the entry on the record book. 3. To issue the summons for inventories directed by sec- tion 2673, and, if necessary, to report to the court, making: proper entries on the record book. 4. To receive the statements of receipts and disbursements vyith vouchers, required by section 2678, and after posting notice at the court house door, under section 2693, to settle the accounts and report to court, making the entry on his book. 5. To issue summons for such statements, etc., imder sec- tion 2678, and, if necessary, report to court, making proper entries on his book. 6. To examine the bonds of fiduciaries and report under sections 2678 and 2686. 7. To receive proof, after notice upon request, under sec- tions 2690, 2691, 2692, of all debts and demands against de- cedents, when he has, for settlement, the accounts of the per- sonal representatives, and to make report to the court of such as are proved. 8. To report, with his accounts, any matters specially stated, deemed pertinent by him, or that may be required, under section 2696. 9. To return with his report, under section 2697, as soon as it is completed, such of the vouchers, or other evidence, before him, as may be desired by any person interested, or he may deem proper. 10. To return, with his accounts, aflSdavits subscribed by COMMISSIONERS IN CHANCEEY. 77 him as to the time occupied in settling the accounts, as re- quired by section 2684, and to state at the foot of every re- port returned by him, the fees therefor, to whom charged, and if paid, by whom. (Sec. 3504.) 11. To examine and report upon the bonds of treasurers, etc., under section 855. Caption T. 1. To keep the record of fiduciaries, prescribed by section 2671, and make the entries therein, prescribed by sections 2671 , 2673, 2678, and to report when no bond has been given, or when it is defective. Who are such fiduciaries? They are shown by the words subsequently occurring, in section 2671, "representative," "guardian, curator, or committee," and the same words, in the first line of section 2673, where the "representative" is called "personal representative." Hoxv is the cominissioner to know who they are? "The s^id commissioner shall obtain from the clerk of his court, within twenty days after each term thereof, a list of the fidu- ciaries authorized to act as such under orders entered at the said term." Probably from inadvertence, section 2671 omits to provide a penalty for the clerk's failure to furnish the commissioner of accounts with a list of fiduciaries, within twenty days, al- though a penalty is provided for a failure to certify a revo- cation of authority. The section might well be amended by inserting the words to furnish such list, or after the words "or any clerk," in the last clause of the section. The examination as to the giving of a bond, as the law re- quires, and whether it is defective, is to be made by the com- missioner as soon as may be, after he receives the list of fiduciaries. He examines the bonds in the clerk's office, and if necessary, reports that there is no bond, or any defect in the bond given to his court at its next term. (See Form No. 23.) The question of examination of bonds is more 78 COMMISSIONERS IN CHANOEEY. particularly treated in this title under subdivision 6. The 'entries to be made rn the several columns of the " Record of Fiduciaries," are fully set out in section 2671 above recited. Under sections 2673-'78, the commissioner of accounts is required to proceed against delinquent fiduciaries. The de- linquency is to be ascertained by him by inspection of his record book; the inspection necessary for proceeding under section 2678 is tedious if the record is continuous. By di- viding the record book into twelve parts, for the twelve months of the year, January, February, etc., commencing each part with the proper month, and making therein the enti-ies of qualifications, etc., in that month. All the quali- fications, etc., in January for a number of years will be en- tered continuously, and so on for February and the otlier months, so that on the first of any month, say September, the commissioner looking to see what fiduciaries have been delinquent since his last examination (say of August 1st) goes back four month§ for inventory, say to May 1st, and six months for statement or exhibit, to March 1st, and by look- ing at the entries for February alone will see whether any of the statements due are yet wanting; and at the entries for May alone will ascertain whether any inventories are wanting. Section 2t)71 above is founded on Acts 1869-'T0, p. 4-12; by that act section 1 of chapter 132, Code 1 860, was amended and re-enacted. (See Form 24 for the "Record of Fiduci- aries." Caption II. 2. To inspect inventories, appraisements, and accounts of sale. 2G47. "Every court by whose order any person is autho- rized to act as a personal representative, shall unless where a testator directs his estate not to be appraised, or, though he so directs, if the court deems it proper, appoint three or more appraisers in every county or corporation in which there may be any goods or chattels of the deceased, or, in case of a will in which there may be any real estate which the personal COMMISSIONERS IN CHANCERY. 79 representative is authorized to sell, or of which he is autho- rized to receive the rents and profits. After ta^king an oath for the purpose, they shall appraise such goods or chattels as may be produced to them, and also the said real estate. The appraisers shall receive each, for their attendance, one dollar per day ; the appraisement shall be signed by them and re- turned to the commissioner of accounts of such court, who shall inspect the same, see that it is in proper form, and, within ten days after it is received and approved by him, deliver it to the clerk of such court; and the said clerk shall record the same with the certificate of approval. The date of return of an appraisement shall be entered J^y the said commissioner in his record book. Every such appraisement shall be" prima facie evidence of the value of the estate em- braced therein, and that it came to the hands of the personal representative." ' 2673. "Every personal representative, guardian, curator, or committee, shall, within four months after the date of the order conferring his authority, return to the said commis- sioner, in proper form, an inventory of all the personal and real estate which has come to his possession or knowledge, or which is under his management or subject to his authority in his fiduciary character; and shall, within four months after any other such estate shall come to his possession or knowledge, return to the said commissioner a further inventory thereof. If he fail to make the return herein first mentioned, the commis- sioner shall issue, through the sheriff or other proper oflScer, a summons to such fiduciary, requiring him to make such re- turn ; and if said return be not made within thirty days after the date of service of tlie summons, the commissioner shall report the fact to his court at the next succeeding term thereof. The court shall immediately thereupon order a ' 1 E. 0. 1819, p. ^86, &o., chap. 104, sees. 44, 45, 46, 50, 51. 1824^'25, p. 11, oliap. 8, sec. 6. 1836-'37, p. 47, chap. 69, sec. 4. 0. 1849, chap. 130, sees. 12, 14. 1865-'66, chap. 53, sec. 14. 1870-71, chap. 244, sec. 12. 1872-73, chap. 119,. sec. 14. C. 1873, chap. 126, sees. 12, 14. 80 COMMISSIONEKS IN CHANCERY. summons to the fiduciary, requiring him to appear at the fol- lowing term ; and upon his appearing, unless excused for suf- ficient reason, he shall be fined by the court in a sum not less than fifty nor more than five hundred dollars. And if the said fiduciary still fail to make such return within such time as the court may prescribe, he shall Ije deemed guilty of con- tempt of court, and may be dealt with accordingly. The said commissioner shall inspect all inventories returned to him by fiduciaries, see that they are in proper form, and, within ten days after they are respectively received and approved by him, deliver them to the clerk of the court to be recorded as required by, law. The date of the return of the inventory shall be entered by the commissioner in another column of his record book. An appraisement made, according -to chap- ter one hundred and nineteen, shall be considered such an inventory as is required in this section^ if it be signed by the personal representative." ' 2674. "Every such fiduciary shall, within.four months af- ter selling any property as such, return to the said commis- sioner an account of such sales ; and when sale is made under any deed of trust, otherwise than under a decree, there shall, within four months after the sale, be returned by the trustee to' the commissioner of accounts of the court wherein the said deed may have been first recorded, an inventory of the property sold and an account of sales. The commissioner shall inspect the same, see that it is made out in proper form, and deliver it to the clerk, to be recorded as herein directed in regard to inventories. Any trustee failing to comply with this section shall forfeit his commissions on such sales." ^ After making his entries in the record book, sometimes ' 1 E. C. 1819, p. 386, chap. 104, sees. 44, 45, 50; p. 407, chap. 108, sees. 7, 8. 1824-25, p. 10, chap. 8, sec. 1. C. 1849, chap. 132, sec. 4. 1869-70, chap. 293, sec. 3. C. 1873, chap. 128, sec. 4. 2 H. &. M. 361 ; 3 Munf. 65'; 5 Leigh, 149. ' « 1842-'43, p. 55, chap. 79, sees. 1, 2. C. 1849, chap. 132, sec. 5. 1869-70, chap. 293, sec. 4. C. 1873, chap. 128, sec. 5. COMMISSIONEKS IN CHANCEET. 81 before, the first duties of the commissioner of accounts are likely to be under sections 2647 and 2673-'74. " He shall inspect all inventories and appraisements and accounts of sale returned to him by fiduciaries or trustees, see that they are in proper form, and, within ten days after they are respec- tively received and approved by him, deliver them to the clerk of the court, to be recorded as required by law." " The date of the return of the inventory or appraisement shall be entered in another column of his record book" — the eighth column — opposite the name of the decedent or ward, etc. The proper page may be found by reference to the index, at the name of the decedent, etc. The date of returji of account of sales may be also entered in the inventory column of the record, but the statute does not so direct. When is the " inventory or appraisement in proper form ? " The inventory certainly, when stated to be " an inventory of all the personal and real estate which has come to his {the fiduciary's) possession or knowledge, or which is under his management, or subject to his authority in his fiduciary character" giving the name of the decedent or ward, etc., and giving a list of property or estate, and signed by the fidu- ciary. (5 Leigh, 149.) Without signature, there is usually no admission by a writing. " An appraisement made accord- ing to chapter one himdred and nineteen shall be considered such an inventory as is required in this section, if it be signed by the personal representative." The appraisement so re- quired (section 2647) must be made, by order of court, by at least three appraisers so appointed, and must purport to be made under oath, and contain a list of property or estate stated in such appraisement to be "such goods and chattels of the deceased as were produced to them," and iu case of a will in which there may be mentioned such, " any real estate which the personal representative is authorized to sell, or of which he is authorized to receive the rents and profits," and must be signed by the appraisers. The account of sales to be rendered by a fiduciary under 82 COMMISSIONKEB IN CHANCERY. section 2674 can be in any form that sets out a sale at a cer- tain time and place, at a certain price, of certain property of the decedent or ward, by the said fiduciary tq a certain per- son, all being named, and is to be signed by the fiduciary. The inventory of property sold, and account of sales by a trustee under a deed of trust, should meet the same require- ments, and be rather in the form of an inventory; it should mention the date of and parties to the deed of trust, and that it was first recorded in the clerk's office of the court which appointed that commissioner, otherwise he does not receive it. A form of inventory and appraisement combined for personal representatives, and a form of inventory merely for other fiduciaries, and of account of sales by fiduciaries, and of inventory and account of sales of trustees, will be found, Forms ISTos, 25, 26, 27, 28. The inventory (section 2673) is to be of all the personal and real estate which has come to the possession or know- ledge of the personal representative, guardian, curator, or committee, or which is under his management or subject to his authority in his fiduciary character; this embraces not only the real estate, but chattels real, goods, and effects, chat- tel property generally, including all credits, whether by open account merely, judgment, or otherwise, and evidences of in- debtedness to the decedent or living person, whether bond, bill, note, or any other. In the Code of 1819, the language in the oath and bond of a personal representative as to the inventory and appraisement, runs thus, "goods, chattels, and credits" which have, or shall, come " to the hands, possession, or knowledge of" the personal representative or any other for him. (See, also, section 2648.) By section 2647, of the Code, appraisers are to be ap- pointed in every county or .corporation in which there may be any goods or chattels of the deceased, or, in case of a will, in which there may be any real estate, which the personal representative is authori5;ed to sell, or of which he is author- ized to received the rents and profits ; after taking an oath COMMISSIONERS IN CHANCEEY. 83 for that purpose, they shall appraise such goods and chattels as may be produced to them, and also the said real estate. For the locality of choses in action, see Minor's Inst., Vol. III., Ft. 2, p. 128. In the appraisement the choses in action should be classed as, 1, sperate; 2, doubtful; 3, desperate; according to their character in those respects. In case the decedent leaves a family, tlien, by section 2649, there is no account to be made of the dead victuals kid in for consumption, nor of live stock killed for the use of the family before sale or distribution; nor, "upon the death of a householder leaving a widow, minor children, or daughters who have never married, is any account to be taken of such of his property as would, if he were alive and a householder, be exempt, under section 3650, from levy or distress for his debts." (Section 3653.) The inventory is the chief guide as to the nature and quantity of the property for which the fiduciary is to be held responsible, and the appraisement, supplemented by accounts of sales, if any, the guide as to the value of such property. The inventory should be noticed in connection with every account audited until the estate or trust is fully administered or dis- charged. It is desirable for the fiduciary to keep a copy of the inventory, and note thereon the changes made in course of administration, or the disposition made of the property, and to exhibit the same with his annual statement of receipts and disbursements. If the inventory or appraisement submitted, be not in pro- per form, of course the commissioner cannot approve, but, by prescribing the forms above, it is not intended to imply that they must be followed literally. A form which fills the requirements above stated should be accepted. If the form does not meet those requirements it should be returned to the appraisers, or to the fiduciary, to be altered and made to meet such requirements; and when so made, should be al- lowed. The necessity for the use of some form like the above, is indicated by the frequency with which fiduciaries 84: C0MMIS8I0NEES IN CHANCEEY. present inventories of what has come into possession only. The commissioner should certify his approval as indicated in the forms referred to above, to be recorded as prescribed, section 2647. The oath of the personal representative at his qualification covers all his subsequent transactions, and is a matter of re- cord, and need not be repeated. The oath of the appraisers, not being of record, appears, not improperly, by certificate, as in said form. Caption III. 3. To summon fiduciaries to make return of inventories, etc. If the inventory required of fiduciaries is not filed within four months from the date of qualification the fact will ap- pear by the record book kept by the commissioner of ac- counts, and he must proceed as directed by section 2673. Such procedure is not directed as to appraisements, because the fact of appraisers appointed does not appear on his record book, and the same may be said in respect to the further in- ventory, and to the account of sale;?. No doubt when a fidu- ciary appears before a commissioner of accounts he may be required to state whether he has made any sales, but they have to appear anyhow, when the. account of receipts and disburse- ments is rendered under section 2678. There is no penalty imposed on a fiduciary for failing to return his inventory or ac- count of sales within four months, and the penalty imposed by section 2679 may be remitted by the court ; but the penalty imposed by section 2674 upon a trustee who fails to comply with that section cannot be remitted. Perhaps because trus- tees cannot well be under supervision. The procedure against the delinquent fiduciary, in respect to the return of inventory not returned after four months from the date of his qualifica- tion, is as follows : After that time "the commissioner shall issue thi'ough tlie sheriff or other proper oificer a summons to such fiduciary, re- .quiring him to make such return, and if said return be not made in thirty days after the date of service of the summons. COMMISSIONBKS IN CHANCERY. 85 tjlie cominissioner shall repoi-t the fact to his court at the next succeeding terra thereof." In view of the importance of the inventory as disclosing the estate in action as well as the estate in possession, for which the fiduciary is to be lield accountable, the court will generally proceed to enforce compliance vifith the law. The number of cases -where fiduciaries, who have qualified and given bond, claim that there was no estate, demands attention. The commissioner cannot, of course, receive such an excuse,, if merely oral. He must, however, receive such a statement, if in writing, signed by the fiduciary, and in lieu of or in form of an inventory, and must deliver it to the clerk. Oil the first day of every month the commissioner shall ' take his record book at the date four months preceding such first day, and for the month preceding the date so taken should examine if any of the fiduciaries who qualified during that month have failed to make return of inventorv under section 2673 ; if so, he issues summons as above stated to such delinquents. A form of such summons is given. Form No. 29. The summons runs in the same name of the com- monwealth, is dated and signed by the commissioner, and is addressed and delivered with a copy to the proper ofiicer, who is the sheriff of any county or sergeant of a,ny city in the commonwealth, or it may be directed to one, and exe- cuted by another. (Sections 3220, 3224.)' Its direction is indicated by the residence of the fiduciary or place where he is expected to be. The summons is of necessity returnable witliin thirty days after service, and, in any event, within ninety days from its date. Its date of issue and date of ser- vice should be noted on the record book in the right-hand colnmn of remarks, and a list or record book of summons, etc., kept. If the summons be not returned, the ofiicer who received it should be at once required to do so, or be re- ported to the court. The summons is process of the com- monwealth, and the ofiicer cannot require any prepayment or _ security for fees for serving ov executing. If the summons 86 COMMIS8IONKK8 IN CHANOEEY. be returned, it will be returned "executed" on such a day, or "not found." The return not found is too frequent, partly because the custom of stating the residence of parties to legal proceedings is much disregarded; it should be re- quired by statute in all cases of qualification. The statute does not prescribe the duty of the commissioner when the summons is returned "not found." It is safe for the com- missioner to note it in the column of remarks, and to men- tion the fact in his next report of delinquent fiduciaries. The execution of the summons is to be noted in the column of remarks; and being executed, it is generally complied with, and then the commissioner proceeds to act upon the inventory as if it had been returned before summons. If the summons be not complied ■Crith within thirty days from its service, the commissioner shall report the fact to his court at the next succeeding term thereof, returning the pro- cess as evidence, and should note the report in the column for remarks in his record book. (For report, see Form 30.) If the inventory be subsequently returned, he is to act upon it as above stated. The commissioner's duty is discharged when he has made his report to the court, unless the fiduciary subsequently brings in the inventory, or the conrt give some further direction to the commissioner. When the conrt pro- ceeds against the delinquent fiduciary, and- prescribes a time for him to make his return, it should direct the commissioner to report if the return be not so made, and the clerk should be required to furnish the commissioner with a copy of the order so directing. The commissioner acts accordingly. (See Forms, No. 31.) The costs of all proceedings against fiduci- aries failing, without good cause, to make the returns and exhibits required, are to be paid by the fiduciaries personally, and they are to receive no allowance for the same iu the set- tlement of their accounts. (Section 2683.) Caption IV. 4. To examine the statements exliibited bv fiduciaries of COMMISSIONERS IN CHANCEEY. 87 moneys received and disbursed, with vouchers, and after post- ing notice, to settle their accounts and report to the court. 26Y6. " If any fiduciary mentioned before in this chapter, or any agent or attorney at law, shall, by his negligence or impro- per conduct, lose any debt or other money, he shall be charged with the principal of what is so lost, and interest thereon, in like planner as if he had received such principal. And if any personal representative, guardian, curator, or committee shall pay any debt the recovery of which could be pre-, vented by reason of illegality of consideration, lapse of time, or otherwise, knowing the facts by which 1?he same could be so prevented, no credit shall be allowed him therefor." ^ 26T7. "A judgment or decree against any person, as the personal representative of a decedent, or committee of a con- vict or an insane person, for a debt due from such decedent, convict, or insane person, may, without taking an account of the transactions of such representative or committee, be en- tered to be paid out of the personal estate of such decedent, convict, or insane person in, or which shall come to, the hands of the representative or committee to be administered. When the court enters of record, that if he had prudently discharged his duty, the suit or motion would not have been brought or made, the judgment or decree, so far as it is for costs, shall be entered to be paid out of his own estate." 2678. "A statement of all money which any personal rep- resentative, guardian, curator, or committee shall have re- ceived, or become chargeable with or have disbursed, within one year from the date of the order conferring his autliority, or within any succeeding year, together with the vouchers for such disbursements, shall, within six months after the end of every such year, be exhibited by him before the commissioner of accoimts of the court wherein tlie order conferring his ' 2 E. C, p. 113, chap. 208, sec. 3. C. 1849, chap. 132, sec. 6. 1862-'63, p. 81, chap. 46. 3 Munf. 198; 5 Munf. 223; 2 Leigh, 650; 11 Leigh, 1; 7 Grat. 160; 19 Grat. 62; 20 Grat. 434; 21 Grat. 194, 733; 24 Grat. 377; 75 Va. 747; 81 Va. 245, 654. 88 COMMISSIONEKS IN CHANCEKY. authority was made, and a statement of all the money which any trustee, acting under a trust created since the first day of July, eighteen hundred and' fifty, shall have received or become chargeable with, or have disbursed within a year from the date of such trust, or within any succeeding year, together with the vouchers for such disbursements, shall be laid by him before the commissioner of accounts of the court wherein the instrument creating the trust was first recorded; and the said commissioner shall state, settle, and report to the court an account of the transactions of any such fiduciary, as provided by law. If any such fiduciary fail to make such exhibit, as herein required, the commissioner and the court shall proceed against him in like manner, and the court shall impose the same penalty, unless such fiduciary is excused for sufficient reason, as is herein provided in cases where fiduci- aries fail to return inventories of their respective estates. The commissioner shall enter in his record book, in a sepa- rate column, the date of each settlement of fiduciary accounts made by him." ' 2679. " If any such fiduciary wholly fail to lay before such commissioner a statement of receipts for any year, within six months after its expiration, and though a statement be laid before the commissioner, yet if such fiduciary be found chargeable for that year with any money, not embraced in the said statement, he shall have no compensation for his services during said year, nor commission on such money, unless allowed by the court. This section shall not apply to a case in which, within six months after the end of any year, such fiduciary shall have given to the parties entitled to the money received in such year, a statement of the said money, and actually settled therefor with them ; nor to a case in which, within the said six months after the end of any year, a fiduciary shall have laid a statement of his re- > 1 E. C, 1819, p. 407, chap. 108, sees 7, 8. 1824-"25, p. 10, chap. 8. C. 1849, chap. 132, sec. 7. 1863-'64, chap. 40. 1869-'70, pp. 443, 444, chap. 293, sec. 7. COMMISSIONERS IN CHANOEEY. 89 ceipts within such year before a commissioner in chancery, who may, in a pending suit, have been ordered to settle his account." ^ , 2683. "The costs of all proceedings against fiduciaries failing, without good cause, to make the returns and exhibits required, shall be paid by them personally, and they shall re- ceive no allowance for the same in the settlement of their accounts." (1869-'70, chap. 293, sec. 3.) 2685. " On motion of any fiduciary having charge of an estate, or of any person interested therein, the court, or the judge thereof in vacation, may require any one of its com- missioners in chancery to settle the accounts of such fiduciary ; and, whenever a court deems it proper, it may require any one or more of its commissioners in chancery to settle the accounts of any of the fiduciaries mentioned in the preceding sections of this chapter. A commissioner making a settlement under such order of a court shall, within thirty days, report the fact and date of such settlement to the commissioner of accounts, who shall make an entry of the same in his record book. Any commissioner having before him the account of any fiduciary for settlement shall, on request, execute and deliver to such fiduciary a receipt for all vouchers filed with him, whicli receipt, if said vouchers be afterwards lost or destroyed, shall, in any suit or proceeding against any such fiduciary, be evi- dence of tlie delivery to such commissioner of the vouchers therein mentioned." ^ 2693. " Every commissioner shall, on the first day of any County or Corporation Court of his county or corporation, post at the front door of the court-house of such County or Corporation Court a list of the fiduciaries whose accounts are before him for settlement, stating the names of such fiduci- '■ K. C. p. 407, sec. 8. 1824-'25, p. 12, sec. 8. C. 1849, chap. 132, sec. 7. 1863, p. 82. 1866-'67, claap 379, p 704. 1869- '70, chap. 293, sec. 7. 6 Leigh, 271; 3 Grat. 115; 23 Grat. 653; 25 Grat. 795; 81 Va. 245. « 1870-71, chap. 32, pp. 29, 30. 1874, chap, 258, p. 375. 1875-76, chap. 63, p. 53. 6 90 . COMMISSIONERS IN CHANCERY. ai'ies, the nature of their accounts, whether as personal repre- sentative, guardian, curator, committee, or trustee, and the names of their decedents, or of the persons for whom they are guardians, curators, or conimittees, or under whose deed or other instrument of trust they are acting. No account of any fiduciary shall be completed by any commissioner until it shall have been mentioned in such list, nor for ten days after being so mentioned." (23 Grat. 376.) For such a list Form ISIo. 32 can be used. 2695. "When a commissioner has before him for settle- ment the account of a fiduciary for any year, if there be any time prior to such year for which the fiduciary has not set- tled, the settlement shall be also for such time. Any per- son who is interested, or appears as next friend for an- other interested in any such account, may, before the com- missioner, insist upon or object to anything which could be insisted upon or objected to by him, or for such other, if the commissioner were acting under an order of a court of chancery for the settlement thereof, made in a suit to which he, or such other, was a party." (C. 1849, chap. 132, sec. 17.) 2695. "The commissioner, in stating and settling the ac- count, shall allow the fiduciary any reasonable expenses in- curred by him as such ; and also, except in cases in which it is otherwise provided, a reasonable compensation, in the form of a commission (on receipts), or" otherwise."' The sections 16-21 of chapter 132, Code of 1860, con- tained what was "provided by law" as to settlement of ac- counts up to the act of July 11, 1870 ; sections 23, 24, 25, 26, 27, chapter 128, of Code of 1873, and sections 2693 to 2697, of Code of 1887, contain the provisions as referred to in sections 8, of Code of 1873, and 2678, of Code of 1887 respectively. The conmiissioner will find it convenient to keep, in addi- ' 1 B. C. p. 389, se^'. 59; p. 410, sec. 24. 1824-'25, p. 12, chap. 8, sec. 8. 1839, chap. 70, p. U. C. 1849, chap. 132, sec. 18. COMMISSIONERS IN CHANCERY. • 91 tion to his record book, a memorandum, in which to note the name of every fiduciary and trustee who returns an inventory or statement, in the order in which he receives them, with a cohimn showing the date when received, and whether a re- ceipt is given for vouchers. This memorandum is convenient in respect to the list to be posted on the first day of the term and for showing the accounts in hand at any time. The Form No. 32, for sucli list, may be used for the memorandum. The date of the settlement made by him, to be recorded in a column of the record book, under section 2678, is not the day he receives the statement, nor is it the date at wliich the fiduciary year begins and ends, and up to which the account runs, and which corresponds with the date of qualification, but it is the date on which he completes his report of the set- tlement and on or about which his report is or should be filed in the clerk's office. Upon receiving the statement the com- missioner should examine, in the case of a trust under a deed, whetlier tlie deed was first recorded in his court; if not, it does not properly come before him. In all cases he examines to see if the fiduciary year is ended ; if not, and until it is, he cannot audit for any part of that year. The statement ex- hibited by the fiduciary is not required to be in any special form, but should show date, amounts, names of parties, and nature of receipts and payments, date of account, etc. Having received the statement, accompanied by vouchers for dis- bursements, the commissioner of accounts, on the first day of the next term of his court, gives notice at the court-house door. " Every commissioner shall, on the first of any county or corporation court of his county or corporation, post at the front door of the court-house of such county or corporation a list of the fiduciaries whose accounts are before him for settle- ment, stating the names of the fiduciaries, the nature of their accounts, whether as personal representative, guardian, cura- tor, committee, or trustee, and the names of their decedents or of the persons for wbom they are guardians, curators, or committees, or under whose deed or other instrument of trust 92 COMMISSIONEES IN CHANCEKY. they are aciting." The list is readily made on the first day of every term from the memorandum book above recommended. (See Form 32.). " No account of any fiduciary shall be completed by any commissioner until it shall have been mentioned in such list, nor for ten days after being so mentioned." The commissioner of accounts may commence the exami- nation of the statement and vouchers as soon as he receives them, and may even make up his statement and report, but he is not to close or file it until mentioned as above, nor for ten days after. " Any person who is interested, or appears as next friend for another interested in any such account, may before the commissioner insist upon or object to anything which could be insisted upon or objected to by him or for such other if the commissioner were acting under an order of a court of chancery for the settlement thereof made in a suit to which he or such other was a party." (2684 above.) 2<:96. "Every account stated under this chapter shall be reported, with any matters specially stated deemed pertinent by the commissioner, or which may be required by any per- son interested to be so stated." (C. 1849, chap. 132, sec. 19.) Under this statute the commissioner is to consider any proof of pertinent matter offered by any one interested, either as to the amount of money received, or which should have been received, or disbursed by the fiduciary or trustee, or as to other of his proceedings, and is to state the account according to the evidence. Without other evidence the statement of receipts by the fiduciary is generally taken to be correct. The inventory is of course a guide not to be overlooked, as is the deed of trust, and as are also accounts of sales. Not only is the inventory to be a guide to the first account, but to every subsequent account until the estate is fully credited with all the property mentioned in the inven- tory. It is convenient at the close of each yearly account to mention the yet then outstanding choses in action not charged COMMISSIONERS IN CHANCERY. 93 up, in addition to the cash balance reported. In respect to the disbursements, the statement must not only be sustained by vouchors, but must be in accordance with the law, and in case of a will or deed," also in accordance with the proper terms and provisions thereof. If so, prima facie, they are accepted without further proof, unless objection be made and sustained. As to loss or improper payment, mentioned in section 2706 above, the statute is imperative, and does not require the objection 1o be raised by pleading; and it reads "know- ing the facts, not the law, that is presumed to be known. The fiduciary is to be charged with the receipts admitted by him, and with any assets he might have collected by using due diligence, and with any he has collected and lost by neg- ligence or improper investment or management, such as a careful and reasonably judicious man would not make or do. And in the disbursements he is to be allowed none which the law would not have required him to make. The disburse- ments are to be sustained by vouchers; when the debt is evi- denced by writing, the writing, whether note, due bill or bond, but especially negotiable paper, should be produced, if practicable, and show the payment credited thereon. In other cases a receipt for payment and the absence of any cause of suspicion is sufficient. The affidavit of the creditor is not objectionable, but it is not binding as evidence. The fiduciary should exercise due caution, but is not to be pre- sumed to pay fraudulent claims. In some cases he should be allowed for payment of small amounts on his own affidavit alone, without vouchers, where the expense must probably have been incurred, or perhaps from its nature a voucher could not have been procured. (1 Minor's Inst. 499; 3 Munf- 289; also 12 Leigh, 113.) It may be noticed that " curator " is not included in the fiduciaries mentioned in section 2677 above, yet a curator of the estate of a decedent is equally directed to pay debts by section 2534. 94 COMMISSIONEEB IN CHANCEEY. The settlement of accounts of fiduciaries may be considered in respect — 1, To the time the account is to commence and end ; 2, To the credits or receipts ; and " 3, To the disbursements. 1. Of the times at which the account is to commence and end. The iirst annual account is to commence on the date of the qualification of the fiduciary or of the deed of trust, and the costs, if paid on that day, will not improperly constitute the first item of the account. As of the same date may be entered any previous proper transactions of the fiduciary, mention being made, if desired, of their actual date. The account is to be closed at the end of the fiduciary year, on the anniversary of the date of qualification or date of the deed, or the day preceding, and is to show the balance then existing, if any. The statute excludes any subsequent time. The next annual account is to commence with tlie said bal- ance, and to embrace the transaction of one year to the next like anniversary and no later. (Sec. 2678.) 2. Of the credits or receipts, and their order. The credits or receipts are usually entered on the page or column to the right on the sheet, the disbursements being entered on the page or column just on the left of the one for receipts. When interest and profits are to be kept separate from principal, there should be two columns for receipts and two for disbursements, or separate statements made. Sometimes at the end of a year the fiduciary is in debt to the estate as to principal, and the estate in debt to the fiduciary as to pro- fits or income exceeded. The necessity for separate columns for principal and profits is, for the most part, to be observed only in guardian or g'wasi-guardian accounts, and in the case of such other fiduciaries as have control of rents and profits of real estate. COMMISSIONERS IN OHANCEBY. 95 Any cash subject to the order or immediate control of the fiduciary at or before the date of qualification should appear credited on that date, and all other credits as they actually occur, or on the dates when they should have occurred, as in case of perishable or other property or rents or choses in ac- tion lost or impaired in value by the neglect or other fault of the fiduciary. (1 Minor's Inst. 435-491; 4 Minor's Inst., Ft. II., 241.) The opinion of Judge Tucker, in the case of Burwell's Executor vs. Anderson, Administrator, reported in 3 Leigh, 348— '64, illustrating and modifying or explaining the rule in Granherry vs. Granberry, concerns the matter of accounts of personal representatives, in respect to their form, and the computation" and charging of interest. The form prescribed is to be followed as the effect of such authoritv, as well as on account of the sufficient reasons al- leged in the opinion; but it is considered that the use of one page, with the columns for figures on the right, is not such a departure from the two-page form reported as amounts to an infraction of the authority or a violation of the reasons, while it is in most cases much more convenient. The consideration of the matter of interest is virtually in reference to two, or more conveniently, to three particulars, viz. : the transactions of the first year, and the treatment of all receipts and disbursements in one year as a single item, in reference to interest thereon, and the application of interest charged on receipts to offset disbursements. It is to be borne carefully in mind that the opinion does not treat of interest actually received by the personal repre- sentative, nor on moneys which he has used in his own busi- ness (6 Leigh, 271), but is applicable only to interest not re- ceived but chargeable on balances in his liands, being charge- able as an incident of the possession of principal, and the opinion, for reasons alleged, distinguishes the difference be- tween the liability of a fiduciary as to such balance from that of an ordinary debtor. The rule in the case of an ordinary 96 COMMISSIONERS IN CHANOBEY. debtor being that partial payments are first to be applied to the payment of interest and afterwards to extinguish pro tanto the principal due. With respect to the transactions of the first fiduciary year to its expiration twelve months after the date of qualification, an executor or administrator is not usually charged with in- terest on moneys come to Iiis hands, unless such interest be actually received by him, except from and after the expira- tion of the first fiduciary year. With respect to subsequent years, the personal representa- tive is to be charged with interest up iq the end of the year on the balance of uninvested moneys in his hands at the com- mencement of that year; but he is not usually to be charged with interest on accounts received by him during that year. As to the application of interest so charged to tlie personal representative, it is not to be cpnsolidated with the balance of principal at the end of a year so as to form a new principal, as in a guardian account. When th6 receipts during any year equal or exceed the dis- bursements for that year, such receipts, and neither the bal- ance of principal, nor the balance of interest at the beginning of that year, are to be applied to such disbursements. When the receipts during any fiduciary year do not equal the disbursements, the excess is to lie paid out of the balance of principal on hand at the beginning of such year, so far as it will sufiice, before resorting to the balance of interest charged at the beginning of that or previous years. But it is to be observed, that not only has the learned judge modified the rule in Granhernj vs. Granberry, but he has stated that as modified he does not mean it to be inflexible, and has, at the end of his opinion, suggested cases where it must bend, e. g., as to amounts received during the year. It is submitted that tlie modification of the rule really extends to require interest cliarged to be applied to disbursements for interest on a debt due by the estate, the principal of which is not then due for some time to come, when the representative COMMlSSIONEKB IN CHANCERY. 97 retains money for the payment of that debt at maturity, but fails to invest the fund in his hands as the situation requires. In the case of BurwelVs Execiitor vs. Anderson's Adminis- trator the disbursements were not for such interest, which was not paid until the principal was paid. (See Minor's Inst., Vol. 3, Pt. 2, 248-'51, and Vol. 4, Pt. 2, 1228-'48, and cases cited, which authority also notices the ca;ses where the personal representative is really to be considered as a guardian, and where, the debts having been paid, the administration is completed so far as to make him liable in respect to interest, as any other debtor.) Interest is not charged against a personal representative or quasi administrator for the first year, unless interest is actu- all}' received or the money of the estate is mixed with his own and used in business or trade. The |iersoiial representa- tive cannot, in the nature of the case, be expected to know the amount necessary to retain for immediate use and demands, nor how much he can invest, and cannot be called on to in- vest the first year, nor does he take the estate as a borrower, but as a duty. In the case of a guardian or quasi guardian (section 2602) interest is charged against him on all receipts, not too inconsiderable in amount, after thirty days allowed for investment, ur from the date of investment if prior to the expiration of the thirty days. It is the guardian's business to invest all principal and excess of profits. In all cases where commissions are allowed they are to be considered as deducted before the computation of interest. And after the first year a personal representative is chargeable with interest, not only when actually received, and when he has used the moneys of the estate in his business or trade, but on all moneys of tlie estate in his hands. The interest, however, on such other moneys is computed only on the balance in hand at the com- mencement of the fiduciary year, his business being rather to dispose of the estate than to invest it. And if these balances are very small, interest n?ay not be charged on them unless they are improperly withheld by the personal representative. 98 COMMISSIONEEB IN CHANCERY. (6 Leigh, 271.) But when large amounts are received during the year which are not necessary for disbursements, the fiduciary should be required to invest them in a reasonable time. The interest is usually credited at the end of the fiduciary year. In the case of a guardian or quasi guardian it is then incorporated with principal on hand to form a new principal, on which interest is charged, the interest being thus compounded, and compound interest is chargeable against all obligors in bonds payable to guardians as such. (Code, 2606-'7-'8.) In the case of personal representatives, unless as quasi guardians, interest is not compounded or brought in to form a new principal, nor to meet disbursements unless neces- sary (4 Minor's Inst., Ft. 2, 1236-39); but when interest other- wise received or charged and credited is not sufiicient to meet interest on debts accruing against the estate, the interest on yearly balances, or so much as may be required, should be applied to such payments, because otherwise, in case of life or shorter interests in the estate set apart, the holder thereof would be getting the interest on balances, and the principal of the estate used to pay interest on debts due by the estate. 2648. " It shall be the duty of every personal representa- tive to administer, well and truly, the whole personal estate of his decedent. The appointment of a debtor as executor shall not extinguish the debt. When the powers of a per- sonal representative have ceased and there be an administrator de bonis non of the decedent's estate, it shall be lawful, with the consent of the court in which the administrator de Ixmis non qualified, to pay and deliver to such administrator de bonis 71071 the assets of the decedent, whether converted or not, for which the former personal representative is respon- sible; but such consent shall not be given unless tlie admin- istrator de bo/iis 7ion shall have given, or shall give, a bond sufiicient to cover the additional assets, so to be paid or de- livered to him. The administrator de bon.'s non shall admin- ister the same as assets received in due course of administra- tion, and his receipt therefor shall be a voucher in the settle- COMMISSIONERS IN CHANOEEY. 99 ment of the accounts of the former personal representative, and shall exempt such personal representative from all liabil- ity for said assets so lawfully paid over and delivered. But this section shall not be construed as exempting such for- mer personal representative and his sureties from liability for any breach of duty with respect to such assets committed by him before they were so paid over and delivered by him as aforesaid ; nor as authorizing a suit by the administrator de bonis non against such personal representative or his estate to compel the payment and delivery to him of such assets of the decedent as were converted by said representative." 2649. "The dead victuals (or so much thereof -as may be necessary) which, at the death of any person, shall have been laid in for consumption in his family, shall remain for the use of such family, if the same be desired by any member of it, without account thereof being made. Any live stock ne- cessary for the food of tlie family may be kfUed for that use before the sale or distribution of the estate, and the same shall not be taken into account by the administrator or execu- tor of said estate." 2650. " Unless it be necessary for the payment of funeral expenses, charges of administration or debts, the personal representative shall not sell estate which the will directs not to be sold " 2651. " Of the goods not mentioned in the preceding sec- tion, the personal representative shall, subject to the provis- ions of chapter one hundred and seventy-eight, sell, as soon as convenient, at public auction, such as are likely to be im- paired in value by keeping, giving a reasonable credit (ex- cept for small sums), and taking bond with good security." 2652. "If the goods so sold be not sufficient to pay the fuTieral expenses, charges of administration, debts and lega- cies, the personal representative shall sell so much of the other goods and chattels as may be necessary to pay the same, having regard to the privilege of specific legacies, and to the provisions of chapter one hundred and seventy-eight." 100 C0MMIB8I0NEKS IN CHANCERY. 2653. " Any estate for the life of another shall go to tlie personal representative of the party entitled to the estate, and be assets in his hands, and be applied and distributed as the personal estate of such party." 2654. "A personal representative may sue or be sued upon any judgment for or against, or any contract of or with, his decedent." 2663. " Keal estate, devised to be sold, shall, if no person other than the executors be appointed for the purpose, be sold and conveyed, and rents and profits of any real estate which executors are authorized by will to receive, shall be re- ceived by the executors wlio qualify, or the survivor of them. If none qualify, or those qualifying die, or are removed be- fore the trust is executed or completed, the administrator with the will annexed, shall sell or convey the lands so de- vised to be sold, and receive the proceeds of sale, or the rents and profits aforesaid, as an executor might have done." 2664. "It shall be one of the duties of an executor or ad- ministrator, by virtue of his ofiice, and as such embraced by his official bond, faithfully to pay the rents and profits or pro- ceeds of sale of real estate which may lawfully come to his hands, or to the hands of any person for him, to such per- sons as are entitled thereto." 3. Of the debits or disbumemenis and their order. Of all charges payable through fiduciaries, those for costs of administration of the estate or trust have precedence, ex- cept perhaps, from public policy, over the funeral expenses of a decedent, to pay which administration is not always ne- cessary. The funeral expenses are supposed to be in accord- ance with "the estate of the decedent and his condition in life." By statute, in the case of decedent's estates, tlie funeral expenses and costs of administration, are preferred to any other debts of the decedent. If an estate is too small to satisfy in full these preferred claims, and from its nature ad- ministration is necessary to collect the assets, it would seem that the cost of administration, so far as necessary for such COMMISSIONERS IN CHANCERY. collection, would be the first charge to be allowed, being for the benefit of the rest. "The commissioner, in stating and settling the account, shall allow the fiduciary any reasonable expenses incurred by him as such, and also, except in cases where it is otherwise provided, a reasonable compensation, in the form of a com- mission (on receipts) or otherwise." These reasonable ex- penses include not only such as are incurred by the fiduciary in his own personal direct actions, as costs of qualification, appraisement, clerk and commissioners' fees for inventory and accounts, postage, necessary travelling expenses paid by him, on business solely concerning the estate, and not his own private affairs, but also such necessary current charges and expenses actually incuj-red and paid for the services of others, involved in the ordinary care and management of the estate or matter in liis charge, such as taxes, insurance and repairs, auctioneers' charges, sometimes labor in managing a farm, reasonable fees to counsel when necessary, etc. (4 Minor's Inst. Pt. 2, 1230, etc.) In respect to commissions, it has come to be generally recognized and accepted as a rule that they are to be five per centum of all original cash re- ceipts, and on the actual casli value of all evidences of debt which it is the duty of the fiduciary to collect, but whicli he has turned over in kind at the request, or with the assent of those interested. That the application of this rule does not always determine a reasonable compensation is unquestion- able; it gives sometimes too much, at others too little; but it is too well established to be departed from without special cause. Under thisi rule it is customary to treat as cash, bonds negotiable by delivery at their market value; but this is a departure from the earlier decisions. A fiduciary ijs not to be allowed but one commission on the same principal or capital money, although he put it out and again collect it. (3 M. 297.) When there is more than one executor, the commissions are equally divided between them, or more strictly apportioned in respect to the amounts received by 102 C0MMIS8I0NEES IN CHANCEKY. each of them. In the case of trustees' sales under a deed to secure debts, when the trust subject is sold as a whole, the rate prescribed by statute as proper compensation, except so far as may be otherwise provided by the deed, is five per centum on the proceeds of sale up to three hundred dollars, and two per centum on the residue of such proceeds, if any, in excess of three hundred dollars. (Code, 2442.) Of ihe disbursements other than the above mentioned ex- penses, etc. In case of a trustee; they are such as are prescribed by the deed or instrument creating the trust. In case of a guardian, .they are "first, such as are proper for the support and maintenance and education of the ward, and they are limited to the income, except where otherwise spe- cially provided by law ; and second, the payments to the pro- per persons entitled to the estate at tlie termination of his guardianship. No notice is here taken of payment by a guardian of debts for which the personal estate is liable as come to the guardian, as mentioned in 7 Leigh, 416, because that is not contemplated as a part of a guardian's usual pro- ceedings by virtue of, or under, his appointment. In the cases of a curator, committee, or personal represen- tative, such disbursements are — First, (except when the curator is quasi guardian,) to pay debts out of personal estate, and where the will (or court) di- rects by resort to real estate; Second, (by personal representative,) to pay annuities and other legacies; Third, (by committee and curator as guardian,) to support and maintain the family, etc., or the minor; * Fourth, the disposition of residue or surplus, by personal representative, to husband, or to widow and distributees; by committee to insane person on recovery or convict at dis- charge, or to the personal representative in case of decease ; by curator, delivery of estate, to guardian or ward, come of age, or to the personal representative. COMMISSIONERS IN CHANOEEY. 103 Of such disbursements, after expenses, ly a guardian. 2603. " Every guardian who is appointed as aforesaid, and gives bond vrhen it is required, shall have the custody of his ward, and the possession, care, and management of his estate, real and personal, and out of the proceeds of such estate shall provide for his maintenance and education. But the father of the minor, it" living, and in case of his death, the mother, while she remains unmarried, shall, if fit for the trust, be entitled to the custody of the person of the minor, and to the care of his education. And unless the guardian shall sooner die, be removed, or resign his trust, he shall continue in office until the minor, being a male, attain the age of twenty-one years, or being a female, shall attain that age or marry, or in the case of a testamentary guardiansliip, until the termination of the period limited thprefor. At the ex- piration of Ids trust, he shall deliver and pay all the estate and money in his hands, or with which he is chargeable, to the person entitled to receive the same." The guardian is to provide for the proper maintenance and education of the ward. (Code, sees. 2603, 1707). So long as this does not exceed the net income of the ward's estate, objection is rarely made to any expenditures actually made for this purpose. They are usually charged in the order of time in which they should occur, and should be supported by vouchers. In cases where the income is not exceeded, ahd it is manifestly not greater than a fair allowance for such board, clothes and education as the ward is known to receive, it is hardly worth while to itemize the yearly disbursement for that purpose ; they may be embraced in one charge. The income ma^ be exceeded " when the deed or will under which the estate is devised does not authorize it" (section 2604), only in two cases, viz., ^'^ First, when the ward is of such tender years or infirm health that he cannot be bound out as an ap- prentice, or no suitable person will take him as such ; sec- ondly, when, although old enough to be bound out as an ap- 104 COMMISSIONERS IN CHANCERY. prentice, it shall be deemed best for the ward that ihc, principal of his personal estate, or a portion tliereof, should be applied towards his education and maintenance, and the court before which thb accounts of th^ guardian may be settled shall be satisfied that such expenditure was actually made, and was judicious and proper, and shall allow the same." Apprenticeship of minors is so nearly obsolete in Virginia that practically the first of the two conditions mentioned above may be said to always exist. (See also 12 Grat. 613, as to the question of propriety of binding out.) And as to the second condition, when fulfilled, except as to the allow- ance by the court, custom lias made the commissioner allow subject to confirmation by the court. It will be noticed that in no case is it admissible to allow expenditures of principal of i-eal estate, or the proceeds of sale thereof, except for a period occurring after previous application, and grant l)y the court. (33 Grat. 663.) When the guardianship terminates by tlie ward's coming of age, or the marriage of a female ward, or by the death of the ward, or in case of the deatli or removal of the guardian, or of his resignation allowed by the court, or, in case of testa- mentary guardianship, by the termination of the period lim- ited therefor, all the estate and money then in the guardian's hands, or with wliieh he is chargeable, is to be delivered and paid to those entitled thereto. (Code, sees. 229 1 , 2292, 2603.) From the termination' of the guardianship interest on the balance is computed at simple interest, and the balance then ■ascertained to be due is treated as an ordinary debt as of that date. (1 Rob. 214.) Of disburseme)its, after expenses, hy a curator*cominittee, or personal representative. See Code, sees. 2534, 2602, 1702, 1703, 1704, 1705, 1706, 2660, 2661, 2662, 2663, 2664, 2665, 4115,4121.) First, The payment of debts out of the personal estate, or where the ivill, or the court, directs, by resortiny to real estate. C0MMIS8I0NEES IN OHANOBEY. 105 In all these cases, except where the curator is quasi guar- dian, the dealings with the estate are by the statute supposed to be similar to those of an administrator, and by express words in every case, except in chapter 75. The convict or insane person is regarded as civiliter rnortuus. 2660. "Where the assets of the decedent in the hands of his personal representative, after the payment of funeral ex- penses and charges of administration, are not suflScient for tlie satisfaction of all demands against him, they shall be applied : First, To claims of physicians, not exceeding fifty dollars, for services rendered during the last illness of the decedent, •and accounts of druggists not exceeding the same amount, for articles furnished during the same period ; Second, To debts due to the United States; Third, To taxes and levies assessed upon the decedent pre- vious to his death ; Fourth, To debts due as trustee for persons under disa- bilities, as receiver or commissioner under decree of a court of this State, as personal representative, guardian or commit- tee, where the qualification was in this State, in which class of debts shall be included a debt for money received by a husband acting as such fiduciary in right of his wife; Fifth, To all other demands, except those in the next class ; and, Sixth, To voluntary obligations ;" ' that is, under seal. 2661. "No payment shall be made to creditors of any one class until all those of the preceding class or clas,ses shall be fully paid ; and when the assets are not sufficient to pay all the creditor! of any one class, the creditors of such class shall be paid ratably ; but a personal representative who, after twelve months ft-om his qualification, pays a debt of his de- cedent, shall not thereby be personally liable for any debt or demand against the decedent of equal or superior dignity, ' 1 k C, p. 289, sec. 60; ^. 630, sec. 65. 1869-'70, p. 428. 1879-'80, p. 146. 7 106 COMMISSIONERS IN CHANCERY. whether it be of record or not, unless before such payment he shall have notice of such debt or demand." The above statutes explain sufficiently the order of priority as to dignity for payment of debts, but this order if preserved does not require the payments to be made in any particular order of time, nor that the annual statement to the commis- sioner of accounts, nor the commissioner's stated account, be itemized in any particular order. The order of time in which the payments are made is usually observed, unless to obviate or settle some question as to the observance of the proper order of priority of right, it becomes desirable to state the items in the above order of classification. The fiduciary can usually determine before the end of twelve months whether, he must, for his own protection, delay payments until that period has arrived. When such delay is considered neces- sary the fiduciary, certainly in case of a decedent's estate, can have the benefit of the provisions of the statute for an ac- count of debts and demands, etc., to be hereinafter mentioned. (Code, sections 2690-'9]-'92, 2702-'3-'4-'5.) All of the above provisions look to their observance, so far as the estate is subject to the fiduciary's power of disposition thereof. Of course he takes it subject to existing liens, if any, and they are to be first disposed of or provided for be- fore its application as above indicated. (Code, section 2662.) As to such liens when the estate consists of several distinct properties, and as to cases where the estate consists of pro- perties held in different rights, as at the death of a person leaving a private estate, and also as surviving partner leaving social assets, the accounts should be separated. When such liens are plain and unquestioned they are to be allowed, when .paid, as of course in the settlement of the account of the fiduciary, their character being clearly stated. When they are questioned or doubtful it is presumed the fiduciary will resort to a court of equity for direction. In respect to the payment of debts, there is sometimes a question as to the proper funds to be first applied to that COMMISSIONERS IN OHANCEKY. 107 purpose, or the order of marshalling assets to pay debts, which is stated in 3 Minor's Inst., Pt. 2, 172, as follows : 1. Personal estate generally (not bequeathed). 2. Real estate devised expressly for the -payment of debts (and not otherwise devised). 3. Real estate descended. 4. Property (real or personal) expressly charged by will with payment of debts, but also subject to such charge specifically devised or hequeathed. 5. Legacies, general. 6. Legacies, specific. 7. Real estate devised. After providing for payment of debts, the personal repre- sentative is. Secondly, to pay anmdta/nts and other legatees. Unless acting under order of court, as prescribed in section 2708, a personal representative may always require a refund- ing bond under sections 2706-'7. A gift by testament or will, of real estate, is called a de- vise, and the person to whom the gift is made or devised is called the devisee. Where there is no will real estate goes to the heir. A gift by will, of personal estate, is called a bequest, and what is bequeathed a legacy, and the person to whom it is made or bequeathed is called -a legatee. The legal title to all the personal estate of a decedent passes to his administrator or executor, but by the assent of the personal representative the title to a legacy passes to the legatee. The assent is necessary, because the legacy may be required for the pay- ment of debts. Legacies may be classed in reference to the nature of the subject matter as Specific, Demonstrative, General, or Pecu- niary. (3 Minor's Inst. Pt. 2, 178.) Specific legacies are legacies of specific things, to be satis- fied by that specific thing and none other; "my diamond ring given by," not " a diamond ring." Demonstrative legacies are legacies "to be satisfied out of 108 COMMI88IONEEB IN CHANOEEY. an indicated fund," as " $1,000 out of the debt which L owes me." General legacies are legacies cither of money or chattels, " which may be satisfied by the payment or delivery of any thing of that kind," as "a diamond ring," "$1,000." Of the ademption of legacies. (3 Minor's Inst., Pt. 2, 306.) As a will goes into effect not at the time it is made, but as of the date of the death of the testator, legacies are some- times adeemed or taken away either by the express words of the testator (constituting a revocation so far of his will, which may apply to any kind of legacy), or by implication by his acts. Ademption by implication, in case of children's portions, or other express purpose subsequently accomplished by ad- vancements made, also occurs in respect to any kind of leg- acy ; but ademption by implication, in the case of the testa- tor's parting with the thing bequeathed, or by his altering it in his life time, so that it will not answer the description of the legacy, occurs only in respect to specific legacies, and perhaps some demonstrative, and so in case of the loss or de- struction in the testator's lifetime of the thing bequeathed. Of the abatement of legacies for the payments of debts. (3 Minor's Inst. Pt. 2, 211.) A testator may of course create by words an express pri- ority or preference as between legacies, but a priority is sometimes implied in the case of abatement, being necessary by reason of insufficiency of the estate. In this case the re- siduary legacy, if any, abates first, then the general legacies equally ; then, if necessary, resort is had to the specific and demonstrative legacies, which abate proportionally and equally amongst themselves. Of the time at which Itgacies are payable. This time is fixed by statute at twelve months from and •after qualification of the executor (Code, sees. 2706, 2708), and the will cannot make it earlier, but may postpone it longer, and it may be postponed for payment of debts or for collections. COMMISSIONERS IN CHANCERY. 109 Of the time from which legacies are to bear interest. (3 Minor's Inst. Ft. 2, 223.) Legacies bear interest or profits from the time they are due, even if not payable. Specific legacies are considered due from the date of the testator's death. Other legacies are considered to be due twelve months after the qualification of the executor, or from the particular time fixed by the will. In the case of personal representative, after the payment of debts and legacies the administration accounts are to be closed, and any balance on hand is to be disposed of as hereinafter mentioned under the head " Fourth, of Distributions," etc. Thirds after paymsnt of debts disbursements are made for support and maintenance. By curators of minor's estates as they would be made by guardians (Code, section 2602) as already stated ; By committees of insane persons (Code, sections 1702, 1705-'6) for the maintenance of the insane person and his family, if any, and by the committee of a convict for the maintenance of his wife and family, if any, the wife to be en- titled, so long as he is confined, to the profits of such portion of his estate as she would have if he had died intestate. (Section 4117.) The portion of the wife of an intestate is considered hereinafter in connection with distributions. The statutes in reference to the committee of an insane person, construed with reference to analogy, and the statutes in reference to the committee of a convict's estate, by express words, require the committee to account for these trusts as if he were a guardian. The principles regulating the settle- ment of a guardian's accounts have already been considered. Fourth, Of distributions, etc. Tiie disposition of the ward's estate at the termination of the guardianship has already been considered. A similar disposition is to be made by or for a curator or committee {quasi guardian) at the coming of age, or discharge of the infant become sane,- or on the death of the curator or com- mittee, and in case of the death of the infant his estate is to no 00MMI8SIONBKS IN OHANCEEY. be turned over to his personal representative. (Code, sections 1702, 2602, and 4118.) In case of the death of an insane person or convict his committee is to turn over his estate to his personal represent- ative. (Code, sections 1702 and 4119.) In case of the death of a personal representative or quasi representative, or in case of his resignation, allowed under section 2689, any balance due by him or property in his hands is to be turned over to the administrator de bonis nan, or^ -other person appointed or qualified to receive it. (Sec- tions 2609, 2648, 2688, 2701.) In the case of a personal -representative after one year from the date of his qualification (Code, sections 2706-'7-'8), and after the payment of debts and legacies, the estate is to be fully and finally disposed of under the law of distributions. 2557. "When any person shall die intestate as to his per- sonal estate or any part thereof, the surplus (subject to the provisions of chapter one hundred and seventy-eight) after payment of funeral expenses, charges of administration and debts, shall pass and be distributed"^ in the following course. Chapter one hundred and seventy-eight refers to the ex- emption from debt as to a householder or head of a family. This subject has been mentioned already in connection with the inventory and appraisement. The surplus is what re- mains after payment of funeral expenses, charges of adminis- tration, and debts, increased in some cases, but not as to the widow, by advancements brought into hotch-pot under sec- tion 2561, as hereinafter mentioned. Alienage, unless of enemies, does not affect the right to share in distribution (section 2548) ; nor does infancy. (a.) "If the intestate was a married woman her husband shall be entitled to the whole of the said surplus of the per- sonal estate." (h.) " If the intestate leave a widow and issue by her, the widow shall be entitled to one-third of the said surplus." 'R. C, p. 83, chap. 33, see. 5; pp. 355-6-7; p. 381, chap. 104, sec. 26; p. 382, chap. 104, sec. 29, 30, 31. COMMISSIONERS IN CHANCERY. Ill (c.) " If the intestate leave a widow, but no issue by her, the widow shall be entitled absolutely to such of the personal property in the said surplus as shall have been acquired by the intestate in virtue of his marriage with her prior to the fourth day of April, eighteen hundred and seventy-seven, and remain in kind at his death. She shall also be entitled " " to one-half of the residue of such surplus " " if the intestate hus- band leave no issue by a former marriage," but "to one- third " only of such residue if he leave such issue. In case of a will by a husband making no provision for the wife "she shall have such share of her husband's personal estate as she would have had if he had died intestate." So if, in case of a will making provision for her, she renounce such provision in the mode prescribed by section 2559 within one year from the time of the admission of the will to probate. " Otherwise she shall have no more than is given her by the will." (1852, p. 80, sec. 98.) Subject to the above provisions the said surplus of the per- sonal estate as to which any person shall die intestate, or the residue thereof shall pass in the following course. (Sections 2548, 2561.) " Fii'st, To his children and their descendants." If all who are to come into the distribution are of the same degree, that is, all children or all grand-children, etc., they take equally per capita or by persons, but where they are of different degrees, some nearer (as children) and some more remote (as grand-children, etc.,) those of the nearest degree take per capita as they would with the others of that degree who have died leaving issue, were they still alive, but such issue shall take the shares of their deceased parents or ances- tors of said nearest degree. (Section 2550.) 2552. "Bastards shall be capable of inheriting or taking and transmitting inlieritance on the part of their mother, as if lawfully begotten." 2553. "If a man, having had a child or children by a woman, shall afterwards intermarry with her, such child or 112 COMMISSIONERS IN CHANOEEY. children, or their descendants, if recognized by him before or after the marriage, shall be deemed legitimate." 2554:. " The issue of marriages deemed null in law, or dis- solved by a court, shall nevertheless be legitimate." 2555. "Any person, in ventre sa mere, who may be born in ten months after the death of the intestate, shall be capa- ble of taking " " in the same manner as if he were in being at the time of such death." (1839-40, p. 48, chap. 56, sec. 1.) " Second, If there be no child, nor the descendants of any child, then to his father." " Third, If there be no father, then to his mother, brothers, and sisters, and their descendants." If all who come into the partition are of the same degree of kindred they take per capita, otherwise they take as stated in clause first above. If some only of the collaterals are of the half blood they are to take only half so much as those who may be of the 'whole blood — that is, each one of the whole blood gets two parts, eacli one of the half blood only one part. If all the collaterals are of the half blood they take alike, bit the ascending kindred, if any, shall have double portion. (Sec- tion 2549.) " Fuurth, \i there be no mother, nor brother, nor sister, nor any descendant of either, then one moiety shall go to the paternal, the other to the maternal kindred, in the following course : " ''Fifth, First to the grandfather." ''Sixth, If none, then to tlie grandmother, uncles, and aunts on the same side, and their descendants," subject to the like qualifications as mentioned above under clause third as to the degree of kindred and half blood. " Seventh, If none such, then to the great grandfathers or great grandfather, if there be but one." "Eighth, If none, then to the great grandmothers, or great grandmother, if there be but one, and the brothers and sisters of the grandfathers and grandmothers and their de- COMMISSIONERS IN CHANCEET. 113 scendants," subject to the like qualifications as mentioned above under clause third as to degree of kindred and half blood. ^^ Ninth, And so on in other cases without end," etc., etc. " Tenth, If there be no father, mother, brother, or sister, nor any descendant of either, nor any paternal kindred, the whole shall go to the maternal kindred ; and, if there be no mater- nal kindred, the whole shall go to the paternal kindred. If there be neither maternal nor paternal kindred, the whole shall go to the husband or wife of the intestate; or, if the husband or wife be dead, to his or her kindred, in the like course, as if such husband or wife had survived the intestate and died entitled to the estate." 2558. "To the commonwealth shall accrue all the personal estate of every decedent, of which tliere shall be no other distributee." After the far reaching provision for payment to such re- mote distributees the section above seems at first almost superfluous, but a reference to sections 2400-2403 will show that the provision is expected to be operative where no dis- tributees are known, rather than wliere they do not exist, and a remedy ai;d mode of relief is provided for such as may sub- sequently appear. Of Hatch Pot. 2561. "Where any descendant of a person dying intestate as to his estate, or any part thereof, shall have received from such intedate in his lifetinie, or under liis will, any estate, real or personal, hy loay of advancetnent, and he, nr any de- scendant of his, shall come into the jhirtit'ion and distribution of the estate with the other parceners and distributees, such advancement shall be brought into hotch pot with the whole estate, real and personal, descended or distributable, and thereupon such party shall be entitled to his proper propor- tion of the estate, real and personal." (1 R. C, p. 357, sec. 17; p. 382, sec. 30.) 114 COMMISSIONERS IN CHANCERY. Consider the conditions: Descendant, not collateral or ascending kin. Under the statute of distributions collaterals do not come in with de- scendants, nor is this privilege extended to the widow, nor does it affect her. (12 Grat., 33.) Intestate estate. Before Code of 1849 the doctrine did not apply to partial intestacy. Advancements from intestates. Not advancements from others, nor gifts and benefits other than advancements., for the purpose of advancing the descendant in life, but there is Vi.0 prima facie presumption of such advancement since Wat- Icins vs. Young, 31 Grat. 84. '■'■Shall come in.'''' The coming in is voluntary. The de- scendant who has received advancements, and refused to come in at first distribution may yet come in for division of dower lands after death of dowager. (25 Grat. 288.) Of valuation of the advancement. The value to be taken is the value borne when the advancement was received. (1 Wash. 225 ; 1 Grat. 406.) Of interest on advancement, or rents and profits. No in- terest or rents and profits to.be considered in hotch pot, except from proper date of distribution. (1 Wash. 224 ; .3 Rand. 117 -559 ; 3 Leigh, 30 ; 4 Grat. 348 ; 12 Grat. 33 ; 33 Grat. 273.) Where the testator fixes date of distribution, and mentions advancements to be brought in, this is hardly hotch pot under' the statute, but the date fixed by him obtains. (27 Grat. 902.) In respect to form of account to be stated under section 2678, it may be observed, while the statement exhibited by the fiduciary can be in any form that shows the necessary fact, the commissioner's statement of the account should be in the form prescribed l)y custom. (3 Leigh, 832-33.) In the old forms accounts were stated on two pages of a whole sheet, the use of one page for both debit and credit, presents no difiiculty, and is an advantage, as preventing bulk of papers and records in the clerk's office ; where one page is COMMISSIONEES IN CHANCERY. 115 used for both debit and credit, there are to be at the right of each page two double columns, dollars and cents, instead of one. The column on the right for the receipts, and the other for disbursements. When it is necessary to show separate statements of capital or principal, and of rents and profits, or income or interest, it may be desirable to have two columns for receipts and two for disbursements. In such case the two-page form is preferable, or rather separate statements of principal and profits or income. When the separate items of one class are few, the one-page form may be used, and the few items noticed by an asterisk, and the balances separated and so marked at the foot of the account. There should in all forms be a column for dates on the left margin of the page, leaving the main portion of the page between the column for the date and the column for dollars and cents, for a statement of the names of parties and nature of the trans- action. ' The first page is to be headed with the caption : "Estate of A. B., deceased," or "M. N.," (living,) the name being that of the decedent or living person whose pro- perty or estate is under the control or chai-ge of the fidu- ciary. Then follows on the next line the words, "In 1st (or 2nd, etc., or final) account with." Then on the next line the 'name of the fiduciary, " C. D., executor," (administrator or guardian, etc.) In the case of trustee's accounts under deed of trust the first line is "A. B.," (name of grantor,) trust. Second line, as above. Third line, " C. D.," (name oF trus- tee,) "trustee under the deed of (name of grantor) bearing date the day of . The first date in a fiduciary's first account stated should be the date of the qualification ; on that date is usually some re- ceipt of money, or, at least, a payment of clerk's fees. If there have been previous items it will be convenient to use the date of qualification as marking the fiduciary year in the column of dates, and in the body of the entry to give the 116 COMMISSIONERS IN CHANCEBY. antecedent date of the transaction. In subsequent accounts the first date of the fiduciary year is generally necessary to state the balance existing at the close of the preceding year. After the first item, is stated the subsequent transactions in the order of their occurrence until the close of the fiduciary year, when the balance is struck and shown by the account. Each item should be stated explicitly and according to its legal character, as funeral expenses, etc., or costs of adminis- tration, or debt, and whether fiduciary, and whether by bond, note or open account, or as legacy, distribution, etc. Just before the balance in each year is struck, it is convenient to state, in one item, the compensation allowed the fiduciary, usually five per centum of cash receipts under section 2695 (as to trustee under a deed of trust to secure a debt see Code, section 2442), but when interest is to be charged on receipts the commissions should be first deducted. The interest is usually brouglit in at the end of the year before the balance is struck, and before the commissions are esti- mated. Advancements to distributees or legatees should not be brought into the account until the end of the first fiduciary year at least. And the statements of distributions should be appended to the account, not included in it, nor mentioned in it except at the close, item, "balance distributed as below stated." The form of a statement of distributions is given as an appendix to the form of statement of executor's account. The form of accounts of fiduciaries generally is much the same, the difference in such accounts relating chiefly to the character of the transactions, and the mode of charging and compounding interest. In the Forms will be found, No. 33, an Executor's Account stated, with distribution accounts and the commissioner's report thereon, and on the bond and se- curities. Also, No. 34, an Administrator's Account stated, and the commissioner's report. Also, No. 35, a Guardian's Account stated, and the commissioner's report. Tliese forms serve also for accounts of curators and committees and gen- C0MMI8SI0NEEB IN CHANOEEY. 117 eral trustees by substituting the words, curator or committee or trustee for executor or administrator or guardian, as the case may require. Also, 'No. 36, a Trustee's Account stated, when under a deed to secure a debt, and the commissioner's report thereon. As lias been already mentioned, when an account is completed and stated, it is to be' filed by the commissioner, with his report. " The commissioner shall enter in liis record book, in a separate column, tlie date of each settlement of fiduciary accounts made by him." (Sec. 2678.) The word fiduciary carmot be here held to include a trustee, nor in sec- tion 2671, nor in section 2673, nor in the part of section 2678, that relates to proceedings against delinquent fiduciaries, be- cause the "Record" is only of fiduciaries who have qualified. Caption V. 5. To summon delinquent fiduciaries to exhibit a statement of receipts, etc. The general nature of the account to be made up from tlie statement submitted by the fiduciary, having been mentioned, let us inquire into the duties of the commissioner when the exhibit required by section 2678 above, is not made by the fiduciary. "If any such fiduciary fail to make such exhibit as, herein required, the commissioner and the court shall proceed against him in like manner, and the court shall impose the same pen- alty, unless such fiduciary is excused for sufficient reason, as is herein provided in cases where fiduciaries fail to return in- ventories of their respective estates." Notice that trustees under deeds of trust are not men- tioned. That the circumstances are not the same as to them, has been already stated in respect to inventories. To ascer- tain the delinquent fiduciaries the commissioner follows the mode prescribed in respect to inventoi-ies, except that he goes back six months or more, instead of four, in his record book. The proceedings by the commissioner are the same as in re- spect to those under section 2673 in regard to inventories, 118 C0MMIBSI0NBE8 IN CHANCEEY. except that they, including the summons, refer to "a state- ment of all money which he (the fiduciary) shall have re- ceived, or become chargeable with, or disbursed, together with the vouchers for such disbursements," as required by section 2678. (See Forms 37, 38, 39.) The costs of these proceedings are to be paid by the fidu- ciary personally, and are not to be allowed in his settlement. (See section 2683.) 2680. "When any such fiduciary shall have so failed to lay before such commissioner a statement of his receipts for any year, a commissioner before whom the said statement might have been laid, shall, upon request made to him, within ten years from the commencement of such year, by any per- son who is interested as a creditor, legatee, distributee, surety of such fiduciary, or otherwise, or who appears as next friend of an infant so interested, issue a summons, directed to the sherifi" or other oificer of any county or corporation, requiring him to summon such fiduciary to lay before the commissioner a statement of his receipts and disbursements, accompanied by his vouchers, for such year, and for the time which may have since elapsed. If the same be not, vdthin one month after the service of such summons, laid before the commis- sioner who issued it, he shall, on being requested so to do, report the fact to the court which appointed him ; and said court shall take such measures to compel the performance by the fiduciary of his duty as could be taken if an express order of the court had been disobeyed." ^ 2681. "When the account of any fiduciary is settled in a chancery cause, it shall be the duty of the clerk of the court in which said cause is, as soon as may be after a final decree therein, to certify to the clerk of the court wherein the fidu- ciary qualified, a copy of such account so far as the same has been confirmed, with a memorandum at the foot thereof stating the style of the suit and the date of such final decree. The account and memorandum so certified shall be recorded ■ 1 E. C, p. 407, sec. 8. C. 1849, chap. 132, sec. 9. 1866-'67, p. 860. COMMISSIONEKB IN CHANCERY. 119 by the clerk to whom it is certified, in the book in which ac- counts of fiduciaries are required to be recorded under sec- tion twenty-six hundred and ninety-eight; and if in a pro- ceeding subsequent to such final decree by appeator otherwise the account shall be reformed or altered, a copy of such re- formed or altered account shall in like manner be certified and recorded, together with a memorandum stating the style of the suit and tlie date of the decree of confirmation. When the clerk of .the court in which the cause may be, is also clerk of the court in which the fiduciary qualified, he shall make the memorandum and recordations required by this section, and shall for such purpose use the original papers. For making and copying under this section, the clerk shall be en^ titled to the fees prescribed in like cases, and for recording such account of the fiduciary he shall be entitled to the fees allowed for recording accounts settled ex parte, the fees for copying and recording to be paid as the court, in which the cause may be, or the judge thereof, shall direct." ^ Section 2680 is a remaining former statute, authorizing compulsory process as above against a delinquent fiduciary at the request, within ten years, by any person interested, or a next friend of an infant so interested. It would seem that section 2678 covers the same ground. If the commissioner and court have discharged their duty under section 2678, the occasion for action under section 2680 is not likely to occur. As a further guard against delinquency on the part of fiduciaries, in addition to the penalty which may be imposed by the court upon a fiduciary reported delinquent by the commissioner, section 2679 provides that a fiduciary shall have no compensation, unless alhnved by the court, for his services, during any fiduciary year as to which he has wholly failed to lay " before the commissioner, within six months after its expiration, a statement of receipts for that year, nor commissions on any moneys received by him, in any year, which have not been embraced in a statement so laid before ' 1870-71, chap. 33, p. 30. 1876-77, p. 151. 1877-78, p. 67. 120 COMMISSIONERS IN CHANCERY. the commissioner of accounts; but this section shall not ap- ply where the fiduciary shall, within six months after the end of any year, have rendered a statement of moneys received in that year 'to the parties entitled to the money, and actu- ally settled with them therefor, nor where he has within such six months laid such statement before a commissionei' in chancery ordered in a suit to settle his account. Notice that such statement to, and settlement with, parties does not exempt him from the duty of making his statement and exhibit to the commissioner of accounts. It relieves only from the penalty, but where he has settled his account in a chancer^' suit under order of court, he need not make the ex parte statement and exhibit. In practice, notwithstanding section 2679, if the fiduciary makes his statement and exhibit before being reported to the court, the commissioner of accounts, if no objection be made, usually allows him compensation or commissions, on the ground that the court will do so unless there has been wilful neglect or some injury or damage done or incurred by the delay ; and that, except in such case, it is a convenience for the commissioner to allow them in the be- ginning. It will be noticed, in reference to the proceedings under section 2681 above, that no provision is made for notifying the commissioner of accounts. Whether the omission is inten- tional or accidental, the result leaves it the duty of the com- missioner of accounts, unless a certified copy of such decree is exhibited, to summon the fiduciary who lias failed for six months after the expiration of the fiduciary year to make the exhibit required by section 2678, even when settlement has been decreed to be made in a suit; and when for thirty days after the due service of such summons the fiduciary still fails to make the exhibit, or to exhibit a certified copy of the decree for accounts, the commissioner is to report him as de- linquent, and the court can make such order as may be neces- sary; it may be allowing the fiduciary to pay the charges for summons and report out of the fiduciary fund or estate. COMMISSIONEES IN CHANCERY. 121 which would deviate the only objection (section 2683) to such a course. Otherwise there should be a provision simi- lar to that under section 2685, whereby, when accounts are settled ex parte by other commissioners, they are to report the date to the commissioner of accounts, or that the clerk of the court in which a fiduciai-y is directed to settle his accounts in a chancery suit should notify the commissioner of accounts of the court wherein the fiduciary qualified, of the date of the decree or oi'der so directing, and give the style of the suit and court, which the commissioner should enter in his record book in the column for remarks. Caption VI. 6. To examine and report upon the bonds of fiduciaries. 2686. "When any personal representative, guardian, cura- tor, or committee, except a sheriff or other ofiicer, shall have laid such statement before a commissioner, he shall examine whether said fiduciary has given such bond as the law re- quires, and whether it is in a penalty, and with sureties suf- ficient. Any commissioner of the court in which the order was made conferring on such fiduciary his authority, shall at any time before such statement is laid before a commissioner, upon the application of any person who is interested or ap- pears as next friend of an infant interested, after reasonable notice to such fiduciary, examine into any of the said mat- ters, or inquire whether security ought to be required of a fiduciary who may have been allowed to qualify without giv- ing it, or whether, by reason of the incapacity, misconduct, or removal of any fiduciary from this State, or for any other cause, it is improper to permit the estate of the decedent, ward, or other person, to re-inaiu under his control. The re- sult of every such examination and inquiry shall be reported by the commissioner to the court by which he is appointed." ' This section requires eveiy commissioner of a court, who 'IRC, pp. 384, 385, sees. 37, 38, 41; p. 407, sec. 5. 1824-'25, chap, 8, p. 11, sees. 3, 4. C. 1849, chap. 132, see. 10. 122 COMMI88IONEKS IN CHANCERY. settles ex parte an account of a fiduciary qualified in that court, to examine and report ex officio, without request, upon the bond and security. It also requires any commissioner upon request, when the fiduciary account is not being settled ex parte, to make the examination and report, and further, upon request, to inquire whether security ought to be re- quired and whether the estate should be permitted in certain cases to remain under the control of the fiduciary. The word " commissioner" merely, instead of " commissioner of ac- counts," is used in the first case of accounts before him, be- cause sometimes, under section 2685, another commissioner may be settling the ex parte account, and when action is to be taken not as incident to accounts, but by request, it may be desirable or more convenient for some other commissioner to act. The case of a sheriff or other oflicer is excepted, there being separate provision made as to their bonds. (Sec- tions 179, 855.) " Such bond as the law requires." The " bond shall be made payable to the Commonwealth of Virginia, with surety" (unless otherwise directed by will) " deemed sufficient by the court," "and" shall be with condition for the faithful dis- charge by " the fiduciary" of the duties of his office or trust, " and shall be proved or acknowledged before the court and recorded by the clerk," and shall contain, as to all the obligors executing the same, a waiver of the homestead exemption, and also of any claim or right to discharge any liability to the commonwealth arising under said bond or by virtue of said office or trust, with coupons detached from bond of this State. (Section 177.) "Every bond of an executor or ad- ministrator shall be in a penalty equal at the least to the full value of the personal estate of the deceased to be adminis- tered; and when there is a will which authorizes the execu- tor or administrator to sell real estate or to receive the rents and profits thereof, the bond shall be in a penalty equal at the least to the full value, both of the said personal estate and of such real estate." (Section 2641.) COMMieSIONEES IN CHANCEBY. 123 " Such court may appoint a curator of the estate of a de- cedent," "taking from him bond in a reasonable penalty." (Section 2534.) "Where the will directs .that an executor shall not give se- curity, the court shall not require it of him, unless on the ap- plication of any person interested, or from its own knowledge it thinks security ought to be required." (Section 2642.) "Every guardian, unless in the case of a testamentary guardian the will otherwise directs and the court in such case deems it unnecessary for the safety of the ward, shall give bond, to be approved by the court by which he is appointed or in which he accepts the trust, in such penalty as shall he prescribed hy the court. If any court omit to require such a bond, or accept sucli person as surety or sureties as do not satisfy it of their suihciency, the judge so in fault shall be liable to the ward for any damages he may sustain thereby." (Section 2601.) '• Until a guardian shall have given bond, or while there is no guardian, the court may, from time to time, appoint a curator, who shall give bond as aforesaid, and during the con- tinuance of his trust have all the powers and perform all the duties of a guardian, and be responsible in the same way." (Section 2602.) In respect to a committee of a lunatic or insane person or of a convict, appointed under sections 1697, 1699, and 4115, "the court making such appointment shall take from such committee a bond in such penalty as it shall deem suflScient," (Section 1701) ; by section 4115, " as it may prescribe." The bonds being required to be filed in the clerk's office, the commissioner is to examine them there. It is supposed that the commissioner will usually accept the opinion of his court as to the sufficiency of penalty and surety unless some change has occurred since the action of the court, or addi- tional and material facts are brought to the knowledge of the commissioner. The form of report on an ex parte settlement is given in forms No. 33, 34, 35. 124 COMMISSIONERS IN CHANCERY. As to the inquiry directed by section 2686, "whether se- curity ought to be required of a fiduciary who may have been allowed to qualify without giving it," it would seem that, un- less some evidence be produced showing the necessity of so doing, the surety should not be required, unless it was omitted by accident or inadvertence at the qualification. In general, matter supposed to be in the knowledge of the court that dispensed with surety may be presumed to be insuflicient cause for requiring it subsequently. Both in respect to this inquiry and the next one, presently mentioned, attention is called to the provision that the inquiry is to be only after reasonable notice to the fiduciary. (See Form No. 40, and also see ante. Title III., and Code 1887, sections 3207-'8.) As to the inquiry, " whether, by reason of the incapacity, misconduct, or removal of any fiduciary from this State, or for any other cause, it is improper to permit the estate of the decedent, ward, or other person to remain under his control," it would seem that ordinarily the fact of qualification should be regarded as a presumption of fitness, and that some reason should appear by evidence before a recommendation or report for removal. The protection of the property and its manage- ment is the special object of care and consideration, but im- putations, without basis, as to the character of the fiduciary should not be encouraged. It does not seem that removal from the State is necessarily a cause for taking the property out of the charge or control of the fiduciary ; otherwise the xef erence would be merely as to the fact of removal from the iState. On the contrary, by chapter 118 of the Code, pro- -vision is made for the transfer of property, in certain cases, to fiduciaries who not only reside, but have qualified, out of the State, and not in it. In respect to security and fitness, the interest required to support the application for inquiry must be a legal or a beneficial interest, So far from the ownership of real estate or lands consti- tuting the only proper basis of sufiiciency in a surety, it was a question in Dew vs. Judges of Sweet Springs, 3 H. «fe M., COMMISSIONEES IN CHANCEKT. 125 pp. 4, 9, 25, 42, whether real property should be considered at all. Caption VII. 7. To take an accowit of and report upon debts and de- rhands against decedents. 2690. " Any commissioner who has for settlement the ac- counts of a personal representative of a decedent shall, when requested so to do by such representative, or any creditor, legatee, or distributee of the decedent, appoint a time and place for receiving, proof of debts or demands against the said decedent or his estate, and, before the said time, post a notice of such time and place at the front door of the court-house of the County or Corporation Court wherein such fiduciary quali- fied, on the first day of two successive terms of such County or Corporation Court." (Code 1849, chap. 132, sec. 14.) 2691. "The commissioner may adjourn from time to time for receiving such proof, and shall, within one year from the time first appointed for receiving such proof, make out an account of all such debts or demands as may appear to him to be sufiiciently proved, stating separately those of each class." {Ibid., sec. 15.) 2692. " Any person, having any such debt or demand and desiring to prove the same, shall file his claim or a written statement thereof, before the commissioner, who shall endorse thereon the date of filing, and sign the endorsement in his official character; and the time that elapses between such filing and the termination of the proceedings commenced under section twenty-six hundred and ninety, shall not be com- puted as a part of the time within which, under any statute or rule of law, it may be necessary, in order to prevent a bar of the claim, to bring any action or institute any proceeding for the recovery or enforcement of such claim." JSTote : The account of debts is taken only when the com- missioner has for settlement the accounts, and upon request. The notice is to be posted, not only at one first day of a term, but upon the first days of two successive terms, and the time 126 ' COMMISSIONERS IN CHANCERY. may safely be fixed as some day coining after ten days from the second of the said first days. They are terms, not of any court, but of the County or Corporation Court. The notice is therefore at least of forty days; the time and place fixed should be mentioned in the notice. Adjournment may be made from time to time, but the account should be made out and reported within one year from the time first appointed. For form of notice, account and report, see Forms 41, 42. Although the fixing time and place for proof of debts can be done only when the commissioner has the accounts of the fiduciary for settlement, after fixing the time and place, the settlement, so far as made, and report thereof, need not be delayed for the proof of debts, which may be subsequently reported. Caption VIII. 8. To report accounts stated, and other 'matters. "Every account stated under this chapter shall be reported, with any matters specially stated deemed pertinent by the commissioner, or which may be required by any person in- terested to be so stated." (Section 2696, above.) It is pre- sumed that this right pertains also to "any person who" "appears as next friend for another interested," under sec- tions 2680, 2686, when the other interested is under disability, as au infant or a married woman. The accounts stated under this chapter are accounts of re- ceipts and disbursements, under section 2678, or 2680, or 2685 or 2694, and accounts of debts and demands, under sections 2690, 2691. These matters have been already considered and the form of report referred to as Forms Nos. 33, 34, 35, 36, 42. Other matters deemed pertinent by the commissioner, or required by any person interested, are to be specially stated. Tlie persons usually interested are creditors, legatees, dis- tributees, and sureties. The report of the matters to be spe- cially stated is referred to in section 2694, " anything which could be insisted upon or objected to," "if the commissioner were acting under an order of a court of chancery for the COMMISSIONERS IN CHANCERY. 127 statement" of the account, "made in a suit to which" the person interested " was a party." The matters must, there- fore, be pertinent to the settlement of the account, and such as are supposed to be proper cause for a departure from the ordinary course of procedure. Special agreements or occur- rences, as assignments of interest, failures of banks, judgment liens, etc.: a statement of such matters is to be incorporated, not in the accounts, but in. the reports of which the form is given, as above mentioned. Caption IX. 9. To return his report, with vouchers and evidence re- quired, as soon as practicable after completion. 2697. " The commissioner shall file the report in the office of the court by which he is appointed, as soon as practicable after its completion, and shall, with his report, return such of the vouchers or evidence before him as any person inter- ested may desire him to return, or as he may deem proper." ^ It has been previously stated that the completion is not to be until ten days after notice posted. 2698. "The court, after one month from the time the re- port may have been filed in its office, shall examine the same, with such exceptions thereto as may be filed at any time be- fore such examination. It shall ' correct any errors which may appear on the exceptions, and any appearing on the face of the account, whether excepted to- or not; and to tliis end, may recommit the report to the same or another com- missioner as often as it sees cause; or it may cause a jury to be impaneled to inquire into any matter which, in its opinion, should be ascertained in that way ; or it may confirm tlie re- port in whole or in a qualified manner. The clerk shall, in a book kept for the purpose, record every report whicli may be so confirmed, and, at the foot of it, tlie order of confirma- tion. Any voucliers or other evidence remaining with the ' C. 18i4-'45, chap. 8, p. 12, sec. 8. C. 1849, chap. 132, sees. 20, 21. 1870-71, chap. 10, p. 9, sec. 1. 128 COMMISSIONERS IN CHANCERY. commissioner at the time of such confirmation, and not want- ing for any further matter of inquiry before him, shall be returned by him to tlie party who filed the same." ' If the commissioner has giyen the fiduciary a receipt for vouchers, under section 2685, he should take care to with- draw the receipt on returning the vouchers. The report of the commissioner of accounts, required by sections 2678, 2686, and its incidents, viewed in contrast to reports on reference under order or decree, presents some differences to be observed. (See Title 11.) First, Personal notice and service is dispensed with. The only notice required is the posting of the list at the front door of the court-house, and no express continuation or ad- journment is required. (The inquiry, on application by a commissioner in chan eery as to permitting estate to remain in hands of fiduciaries, under section 2686, requires notice to be given.) Second, When the statement of receipts and disbursements exhibited to the commissioner of accounts, and the vouchers for disbursements wq prima facia correct and sufiicient, and are not objected to, and conform to the inventory, etc., no further examination or inquiry is necessary in regard thereto. Third, The subject-matter of the inquiry and report, is fixed by statute, instead of by a decree or order. Fourth, The commissioner of accounts acts ex officio, and he must, if requested, without any order of court to that effect, return with his report any vouchers or other evidence, as well as report upon any matter required, etc. Caption X. 10. To return with his accounts affidavits as to the time occupied, etc. 2684. "The fees of commissioners of accounts for the special duties hereinbefore imposed upon them shall be the same as are now allowed by law to commissioners in chan- ' 1 B. C. p. 107, sec. 7; C. 1849, chap. 132, sec. 22. COMMISSIONERS IN CHANCERY. 129 eery, and the said commissioners of accounts shall, in all cases, return with their accounts affidavits subscribed by them as to the time they were occupied in settling said accounts, and unless and until such affidavits are returned, the said com- missioner of accounts shall not be entitled to any compensa- tion for their services." ' For fees allowed, see Title "Fees," and Code, chapter 172, sections 3500-3504. 3504. "A commissioner returning a report shall state at the foot thereof the fees therefor, to whom charged, and if paid, by whom." In case of exceptions and a recommittal, under section 2698, the proceedings are similar to those under any order or decree of court, as explained under Title II., following the nature of the order. There is one other matter for consideration by the com- missioner of accounts. When is an account rendered to be considered final, and when does the duty of the fiduciary, to render the statements, under section 2678, end and become discharged? Priina facie an account is not final as long as there is any estate to be "received, or become chargeable with, or disbursed," other than such as has been ordered or decreed to be paid, or as long as the trust continues. In the case of personal representatives, this condition is generally to be ascertained from the inventory and accounts filed, and en- dures imtil the assets are fully administered and paid, or until the death or removal or resignation of the fiduciary, or her mar- riage, if a female (Sections 2643-44, 2689.) And in case of such i-emoval or marriage, before a final account rendered, there^ should be an account running to the date of such re- moval or marriage, showing the balance as of that date. The case is similar with trustees wlio have sold property under a deed, otherwise than under a decree. As to committees and guardians or curators there may be additional estate, by gift or descent, until the trust ceases, which, in these cases, may ' C. 1869-70, p. 444, chap. 293, sec. 4. 1871-72, p. 335, chap. 251. 130 COMMISSIONERS IN CHANCERY. be, not only by the death or removal or resignation of the fiduciary, but also, unlike the other cases, by the death of the beneficiary, or by the recovery of the insane person, or coming of age of the ward, or her marriage, or by the termi- nation of the period limited in case of testamentary guardian- ship. (Section 2603.) In all cases vrhere the trust determines, the balance due becomes an account as between debtor and creditor, and no account is necessary for the future period. Caption XI. 11. To report under order or decree upon Treasurer's hortd^ etc. The foregoing remarks under this Title IX. are intended to comprise and present what is desirable to be stated in re- gard to those subjects with reference to which the office of commissioner of accounts was created. There is, however, another duty similar to one of those already mentioned, im- posed by subsequent legislation upon the commissioner of accounts, in regard to the bond of a public oiBcer, not a fidu- ciary, of the class treated of under the title " Fiduciaries Gen- erally." (Chap. 121.) This matter of report on the treas- urer's bond is fully treated under Caption B., Title II., re- port on reference. (See Form 5.) PART III. TITLE X. Occasional Duties, Etc. Besides the duties and functions of cominissioners in chancery acting under decree or order of court, and as commissioners of accounts, there are other duties and powers incident to the office. Some of these have been already men- tioned as rather incidental to, and in connection with, the above general powers, etc., for instance, administering oaths and affidavits, taking depositions, summoning witnesses, in- quiry under section 2686, etc. Proceedings on a petition tc perpetuate testimony are mentioned at the end of Title VI. There remains for consideration the following: A. Taking and certifying acknowledgments of deeds, etc., under sections 2501, 2502, 2503, 2504. B. Drawing jurors, under sections 3146, 3148. C. Ascertaining the lien of & fieri facias, etc., under sec- tions 3603-'6. D. Receiving interrogatories, etc., against defendant in cus- tody. (Section 2995.) E. Acting as conservator of the peace, under sections 3912, 3920. And the subject of fees, to be considered under Title XI. A. Of taking and certifying acknowledgments of deeds and other writings. Sec. 2501. "Such court or clerk shall also admit any such writing to record as to any person whose name is signed 132 COMMISSIONEES IN CHANCEKY. thereto, upon a certificate of his acknowledgment before the said clerk, or a justice, a commiesioner in chancery of a court of record, or a notary, within the United States, written on or annexed to the same, to the following effect, to-wit: "County (or corporation) of , to-wit: I, , clerk of court (or a justice of the peace, or commis- sioner in chancery of the court, or notary public), for the county (or corporation) aforesaid, in the State (or ter- ritory or district) of , do certify that E. F., (or E. F. and G. H., etc.,) whose name (or names) is (or are) signed to the writing above (or hereto annexed), bearing date on the day of , has (or have) acknowledged the same before me, in my county (or corporation) aforesaid. Given under my hand, this day of .' Or upon the certificate of acknowledgment of such person before any com- missioner appointed by the Governor, within the United States, so written or annexed, to the following effect, to-wit : ' State (or territory or district) of , to-wit : I, , a com- missioner appointed by the Govea-nor of the State of Vir- ginia for the said State (or territory or district) of , certify that E. F., (or E. F. and G. H., etc.,) whose name (or names) is (or are) signed to the writing above (or hereto annexed), bearing date on the day of , has (or have) acknowledged the same before me, in ray State (or ter- ritory or district) aforesaid. Given under my hand this . daiy of , Anno Domini.' Or 'upon the certificate of the clerk of any County or Corporation Court in this State, or of the clerk of any court out of this State, and within the United States, that the said writing was acknowledged by such person, or proved as to him by two witnesses before such clerk, or before the court of which he is a clerk, or upon certificate under the official seal of any minister plenipoten- tiary, charge d'affaires, consul general, consul, vice-consul, or commercial agent, appointed by the government of the United States to any foreign country, or of the proper oflicer of any court of such country, or of the mayor or other chief magis- COMMISSIONERS IN CHANCERY. 133 trat& of any city, town or corporation therein, that the said writing was acknowledged by such person, or proved as to him by two witnesses, before any person having such appoint- ment, or before such court, mayor, or chief magistrate." '■ Sec. 2502. " When a husband and wife have signed a writ- ing purporting to convey any estate, real or personal, such writing may be admitted to record as to each of them accord- ing to the provisions of section twenty-five hundred, or sec- tion twenty-five, hundred and one, and when it shall have been so admitted to record as to the husband, as well as the wife, it shall operate to convey from the wife her right of dower in the real estate embraced therein, and pass from her and her representatives all right, title, and interest of every nature, which, at the date of such writing, she may have in any estate conveyed thereby, as effectually as if she were, at the said date, an unmarried woman. Such writing shall not operate any further upon the wife, or her representatives, by means of any covenant or warranty contained therein, which is not made with reference to her separate estate as a source of credit, or which, if it relates to her said right of dower or to any estate or interest conveyed other than her own, is not made with express reference to her separate estate as a source of credit." Sec. 2503. "Nothing contained in the preceding section shall be so construed as to impair or affect any right or power a married woman has, by her sole act, in virtue of the pro- visions of chapter one hundred and three, to convey or trans- fer any estate, real or personal, which is made her separate estate by that chapter; and any writing, which is to be. or may be, recorded, signed by a married woman, thoiigh not signed by her husband, conveying or transferring any estate, real or personal, which is made her separate estate as afore- said, may be admitted to record as to her, according to sec- ' 1866-'67, chap. 143. 1869-70, chap. 138. 1872-73, chap. 59, sec. 4. C. 1873, chap. 117, sec. 4. 134 COMMISSIONERS IN CHANCEET. tion twenty-five hundred, or section twenty-five hundred and one, in the same manner as if she were unmarried." Sec. 2504. "Where a commission for tlie privy examina- tion of a married woman, issued before the first day of No- vember, eighteen hundred and fourteen, from the office of the general court, or a former district court, or superior coiirt of law, shall appear to have been executed and not re- corded, the same, and the certificate of the execution thereof, shall be admitted to record in the court of the county or cor- poration in which it would be proper to record the writing to which such commission is annexed, if made on or after the first day of July, eighteen hundred and fifty." Section 2509. A married woman, not a resident of Vir- ginia may, in conjunction with her husband, by power of at- torney duly executed, acknowledged, and certified as to each of them, as prescribed in section two thousand five hundred and one, appoint an attorney in fact for her and in her name to execute and acknowledge for record any deed or other writing which she might execute and acknowledge in con- junction with her husband; and every deed or other writing so executed and acknowledged by such attorney in fact (in pursuance of said power of attorney while the same remains in force), and admitted to record according to the provisions of section two thousand five hundred and two, shall be valid and efi^ectual in all respects, to convey the interest and title of such married woman in and to the real estate thereby conveyed, and to bar her right of dower therein." The deed should first be signed by the party or parties whose acknpwledgment is to be taken. The commissioner should ask each the question : " Do you acknowledge this to be your act and deed^" The response should be an un- qualified affirmation or assent. . One certificate may be made to serve for several parties where they acknowledge before the same commissioner. A commissioner in chancery uses no seal of office, and should not take acknowledgments to be certified under seal. COMMISSIONERS IN CHANCERY. 135 If the commissioner be a beneficiary under the deed he is disqualified from taking the acknowledgment of the grantor (75 Va., 491.) B. — Of Drawing Jurors for the Venire. Section 3146. "The clerk of every county and corpora- tion court shall, at least ten days before any term of a court at which a jury may be necessary, to be designated by the judge thereof, after shaking and mixing together the ballots in the said jury box in the presence of the judge of such court if present, if not, in the presence of the commonwealth's attorney, or a commissioner in chancery of the Circuit Court of the county or corporation, openly draw tlierefrom sixteen ballots (without mspecting the names written on any until the proper number is drawn), and forthwith issue and deliver a, writ of venire facias to the proper officer of the county or corporation, requiring him to summon the persons thus drawn, whose names shall be stated in the writ, together with the day of the term and the court at which their attend- ance is required. And it shall be the duty of the officer, at least three days before the time of such attendance, to sum- mon each person who is drawn to attend the court at the time and place mentioned in the writ, and to make due re- turn thereof at the opening of such court. If any person whose name is so drawn is unable, by reason of sickness, ab- sence from homo, or other cause, to attend as a juror, his name shall be returned to the box, or, if he is exempt by law, or his name has been struck from the jury list, the baLot shall be destroyed, and another juror shall be drawn in his stead." ' Sec. 3148. " When any person is drawn aUd returned to serve as a juror as aforesaid, the judge, if present, if not, the commonwealth's attorney or commissioner in chancery, shall cause to be endorsed on the ballot containing his name, the 1 1870-71, chap. 57, sec. 10. 1871-'72, chap. 123, sec. 10. C. 1873, chap. 158, sees. 8, 9, 10. 136 COMMISSIONERS IN CHANCEKY. word "drawn," and shall return it to the box; and the date of the draft shall be entered on the list of jurors opposite his name.'" The commissioner in chancery in whose presence a jury may be drawn must be a commissioner of a circuit court. The commissioner's duty, in such case, seems to be, to see that sixteen ballots are drawn from the box without any in- spection of the names in the ballots until all of the sixteen are drawn, and afterwards, upon the inspection of names, to cause to be endorsed on each ballot used the word " drawn," and to return such ballot to the box. If the word "returned" in the first line of section 3148 refers to the return to be made by the bfiicer summoning the venire under section 3146, the return of the ballot to the box cannot take place at the time of drawing, but must be postponed until after the officer's return. C. Of ascertaininy und enforcing the lien of a fieri facias. 3557. "A decree for land or specific personal property, and a decree or order requiring the payment of money, shall have the effect of a judgment for such land, property, or money, and be embraced by the word "judgment," where used in any chapter under this title ; but a party may proceed to carry into execution a decree or order in chancery other than for the payment of money, as he might have done if this and the following section had not been enacted. 3558. "The persons, entitled to the benefit of any decree or order requiring the payment of money, shall be deemed judgment creditors, although the money be required to be paid into a court, or a bank, or other place of deposit. In such case, an execution on the decree or order shall make such recital thereof, and of the parties to it, as may be neces- sary to designate the case; and if a time be specified in the decree or order within which the payment is to be made, the execution shall not issue until the expii-ation of that time." 00MMISSI0NEE8 IN CHANCERY. 137 Sec. 3603. ''To ascertain the estate on which a writ of- fieri facias is a lien, and to ascertain any real estate in or out of this State, to which a debtor named in &\i(^ fieri facias is entitled, the judgment creditor may file interrogatories to the debtor, and a copy of the judgment, with a commissioner of any Circuit or Corporation Court, who shall issue a summons as in the cases provided for by section thirty-three hundred and seventy, except that it shall not be served out of the county or corpoi-ation in which the commissioner resides. The debtor served with such summons shall, within the time prescribed tlierein, file answers upon oath to said interroga- tories. If he fail so to do, or file any answers which are deemed by the commissioner to be evasive, the commissioner, after the service and return day of a notice to or a,rule upon the debtor, issued by such commissioner, and returnable to a day and place indicated in the process, to show cause against it, may issue an attachment against such debtor, returnable before him on a day and place certain, set out in it, to com- pel such debtor to answer before the commissioner the inter- rogatories aforesaid, or any others which he may deem perti- nent. Eut the said commissioner shall enter in his proceed- ings and report to the court mentioned in section thirty-six hundred and five any and all the objections taken by such debtor against answering snch interrogatories, or any or either of them ; and if the court afterwards sustain any one or more of such objections, the answers given to such inter- rogatories, as to which objections are sustained, shall be held for naught in that or any other cause." ^ Sec. 3604. " Any real estate out of this State, to which it may appear by such answers that the del>tor is entitled, shall be forthwith conveyed by him to the offiper to whom was delivered the said^'m facias; and any money, bank notes, ' 1 E. C, p. 536, 537, sec. 31. 1820, chap. 34, sec. 3. 1839, chap. 63, sec. 3. C. 1849, chap. 188, sees. 5, 6. 7, 16, 17. 1852, chap. 91, sec. 1; chap. 92, sees. 3, 4. 1853-'54, chap. 32. ISSS-'SB; chap. 40. C. 1873, chap. 15, sec. 9, ol. 10; chap. 148, sees. 37,38; chap. 184, sees. 5, 6, 7, 8. 138 COMMISSIONERS IN CHANCEEY. ■securities, evidences of debt, or other personal estate, which it may appear by such answers are in the possession or under the control of the debtor, shall be delivered by him, as far as practicable, to the same officer, or to such other and in such manner as may be ordered by the court, when the answers are in court, or by the commissioner when the answers are not in court. Unless such conveyance and delivery be made, a writ shall be issued by the court's order^ or, if the answers be not in court, by the commissioner, directed to the sheriff of any county or the sergeant of any corporation, requiring such sheriff or sergeant to take the debtor and keep him safely, until he shall make such conveyance and delivery ; upon doing which he shall be discharged by the court under whose order th^ writ issued, or, if the answers were not in court, by the court by which the commissioner was appointed, or in either case, if the court be not sitting, by the commis- sioner. He may also be discharged by the said court, or the judge thereof in vacation, in any case, if the court or judge shall be of opinion that he was improperly committed or is improperly or unlawfully detained in custody." Sec. 3605. "The commissioner shall return the interroga- tories and answers filed with him, and a report of the pro- ceedings under the two preceding sections, to the court in which the judgment is, or if the judgment be of a justice, to the court of the county or corporafion in which such justice resides." Sec. 3606. " Where a debtor named in a writ o^ fieri facias, after being served with a summons issued by a commissioner, fails, within the time prescribed therein, to file answers upon oath to said interrogatories, or shall file answers which are deemed by the commissioner to be evasive, if the judgment creditor show, by affidavit, to the satisfaction of the commis- sioner that there is probaljle cause for believing that the said debtor is about to quit this State, unless he be forthwith ap- prehended, a writ shall be issued by the commissioner, di- rected to the sheriff of any county or the sergeant of any cor- C0MMI8SI0NEKS IN CHANOEET. 139 poration, requiring such sheriff or sergeant to take the debtor and Jjeep him safely until such answers to the interrogatories as the commissioner deems proper shall be iiled, and such conveyance and delivery as he deems proper shall be made, or until a circuit or corporation court, or a judge of such court in vacation, shall direct the debtor's discharge.'' Section 3370, referred to in section 3603, will be found i?i ex- tenso, ante Title V.," Of Summons," etc. The officer is to make return of the summons within the time therein prescribed, not exceeding sixty days. With the summons there shall be a copy of the interrogatories, which shall be delivered to the person served with the summons at the time of such service. The summons is not to be served out of the county or corpo- ration in which the commissioner resides. In other respects it is to be directed as prescribed in section 3220, a^so given in extsnso under Title V., ante. It is usually directed to a sheriff or sergeant. The word judgment embraces a decree or order for the payment of money. (See section 3557.) The commissioner may be a commissioner (in cliancery) of any circuit or corporation court. But construed with regard to section 2992, the words circuit or corporation court must be held to mean " the court wherein such judgment, decree, or order is." The proceedings are commenced by the filing with such commissioner, by the judgment creditor, of inter- rogatories to the debtor and a copy of the judgment. Al- though the proceedings are to discover, etc., -the lien of a fieri facias, the fieri facias is not directed to be filed. It may be in the hands of the officer, and the copy of judgment shows the amount, but the judgment may not show the dura- tion of the lien of the fieri facias, nor whether it is out- standing. The commissioner then issues the summons (see Form 43), prescribing the time, not exceeding sixty days, within which the answers are to be filed, appending to a copy thereof a copy of the interrogatories, which may well be men- tioned in the summons, as it should always be in the return 140 COMMISSIONERS IN CHANCERY. of the officer. The time of return, not exceeding sixty days, is to be prescribed in the summons. The summons is then delivered to the proper officer, sheriff of the county or ser- geant of the corporation in which the commissioner resides. If the debtor served with such summoiffe, etc., of which the officer's return is the evidence, fail within the prescribed time to file answers upon oath to the interrogatories, or file any answers which are deemed to be evasive, the commis- sioner, after the service aijd return day of a notice to or rule upon the debtor (see Form 44), returnable to a day and place indicated in the process, may, unless the debtor be already held under a capiasad respondendum, under section 2991, issue the attachment against the debtor (see Form 45), returnable to a day and place certain set out in it, to compel such debtor to answer before the commissioner not only the interroga- tories aforesaid, but any other which he may deem pertinent. But under the like circumstances, and in lieu of the notice or rule to show cause, if the judgment creditor show by affidavit (not necessarily the affidavit of the creditor) that there is probable cause for believing that the said debtor is about to quit this State unless he be forthwith apprehended, a writ shall be issued by the commissioner, as prescribed by section 3606, unless the debtor be already in custody under a capias ad respondendum, under section 2991, either actual or con- structive custody, as when bailed, under section 2992. If in actual custody, the probable cause for relief is wanting ; if under bail, the bail bond is sufficient security. It cannot be stated specifically what constitutes probable cause for be- lieving, etc. It is sufficient if the commissioner from the af- fidavit is satisfied that there is probability, not a certainty, that the debtor is about to quit the State. (18 Grattan, 482, 485; 21 Grattan, 162.) Although no form is prescribed by statute, the affidavit is properly in the words of the statute. Under the writ of capias, under section 3606, the officer is to take the debtor and keep him safely until, etc., under the attachment, under section 3603, the debtor is to be brought COMMISSIONERS IN CHANCEEY. 141 before the commissioner, "to answer before the commis- sioner," etc. There is no express provision in such terms for the debtor to be committed if he refuse to answer when brought in under the attachment, but the power to so com- mit is but a necessai-y incident of the attachment, and is ex- pressly given in the next section (3604) in case of refusal, after answer, to convey and deliver. (For form of mittimus, see Ko. 46.) With regard to the provision for objections, constituting the last sentence of section 3603, it may, so far as the com- missioner is concerned, be considered a« made and included under section 3605, but it may be here remarked that the questions being solely for discovery, tlie commissioner should not compel answers to "any other" that have not the same object. Any property disclosed by the answers must he, either real estate in or out of this State, to which the debtor is entitled, or personal estate on which the suit oi fieri facias is a lien or might be if levied. As to the real estate of the debtor in this State, the lien of the judgment is sufficient. Any real estate out of this State, to which it may appear by said answers that the debtor is entitled shall be forthwith conveyed by him to the officer to whom was delivered the said fieri facias. For this purpose at least, it would seem that a copy of the fieri facias should accompany the inter- rogatories. The conveyance should be by deed, in accord- ance with the law of the locality of the real estate. And any money, balnk notes, securities, evidences of debt, or other personal estate, which it may appear by such an- swers are in the possession or under the control of the debtor, shall be delivered b}' him as far as practicable, and in such manner as may be ordered by the commissioner. It may be by actual delivery, or an order for delivery, or by assignment of what cannot be delivered. The delivery is to be to the same officer to whom was delivered the said fieri facias, or to such other as may be ordered by the commissioner ; such Otlier should be the sergeant or sheriff of the corporation or 142 COMMISSIOJSKES IN CHANCERY. county where the property is, if capable of transfer by deliv- ery, otherwise to the sergeant or sheriff of the county or cor- poration where the commissioner resides. Take notice that the statute does not say personal estate belonging to, but, in the possession of the debtor. The question of title may he tried afterwai-ds. If after answering, the debtor refuse to convey and deliver, then, unless he has been taken under writ of capias under section 3606, in which case he remains in custody, a writ shall be issued by the commissioner, under section 3604, to the sheriff of any county or sergeant of any coi'poration, commanding him to take the debtor, etc. (Form No. 48), after which, upon making such conveyance and de- livery, the debtor may be discharged from custody by the commissioner, provided his court, or the court in which the answers are, be not then sitting. The commissioner may also discharge the debtor from custody, under section 3606, when such answers shall be filed and such conveyance and delivery is made as he deems proper. Forms of these proceedings, and of report with interroga- tories to the court, in which the judgment is, or, etc., are given, Nos. 43, 44, 45, 46, 47, 48, 49, 50. D. To receive interrogatoineif filed against a defendant in custody, under a capias ad respondendum, and answers there- to, etc., and report to court. The process and remedy afforded as above (Caption C.) against ajudgment debtor under ?k fieri facias, not seeming to be a sufficient rernedy against all persons indebted, the bail law (Acts 1850-'51, p. 36; 185:.^ p. 76) was passed to se- cure a remedy against such persons abont to leave the State, similar to that provided above, but authorizing a capias pre- vious to judgment. Sec. 2995. "When a defendant is in custody, whether under an arrest 'made heretofore or hereafter, the plaintiff, without having a judgment against the defendant, may file interrogatories to him in like manner as might be done imder COMMISSIONERS IN CHANCERY. 143 section thirty-six hundred and three, if such judgment had been obtained, and a fieri facias thereon delivered to an of- ficer. And the court wherein the case is pending, or the judge thereof in vacation, may, after reasonable notice to the plaintiff, or his attorney, discharge a defendant from custody, unless interrogatories be filed within such time as the said court or judge may deem reasonable ; or, though interroga- tories be filed, may discharge him when proper answers thereto are filed and proper conveyance and delivery made." (1852, chap. 92, sec. 3.) Sec. 2996. "The conveyance required in the preceding section shall be made to the ofiicer making the ai-rest ; or if for any reason it cannot be made to him, then to such other oflBcer as the court or judge may direct. The interrogatories, answers, and report of the commissioner shall be returned to the court in which the case is pending, and filed with the papers of such case. And the said court may make such order as it may deem right as to the sale and proper appli- cation of the estate conveyed and delivered under the pre- ceding section." To remedy too great severity, it was enacted that, "while a defendant is in custody (and this means while under bail- bond as well as while in actual custody of the ofiicer or in jail, 10 Grat. 646), the plaintiff, without having a judgment against the defendant, may be notified to, or may file inter- rogatories to liiin, in like manner as above described in case of a judgment and a, fieri facias. N"o commissioner's pro- cess, other than summons, is necessary in this case, the de- fendant being actually in jail, or having given bond to secure the debt. .But the commissioner should report a failure to answer or to convey and deliver. The oflBcer making the arrest shall be the officer to whom the conveyance shall be made; it may be presumed that de- livery may, be made to such officer as the court may direct, but the statute does not charge the commissioner with this duty, as under section 3604. The interrogatories, answers 144 COMMISSIONERS IN CHANCEEY. and report of the commissioner shall be returned to the court in which the case is pending, and filed with the papers in the cause. The forms prescvibed above in Caption C. can easily be adapted to this case, but special forms are given, Nos. 51, 52. E. — As a conservator of the peace. Section 3912. "Every judge throughout the State, and every justice, commissioner in chancery, and notary, within his county or corporation, shall be a conservator of the peace, and may require from persons not of good fame security for their good behavior for a term not exceeding one year." ' The party should first have an opportunity to'be heard and answer for himself (Hening's Justice, 419, section 18), but a warrant for the peace or the good behavior preceding a final action is notice enough, and in many such cases it would be folly to give notice of the warrant. The words used in a warrant for the good behavior indicate that it proceeds from the " information, testimony, and complaint of many credible persons of the county (or corporation) that " the persons to be arrested " are not of good name and fame, nor of honest con- versation, but evil-doers, rioters, barrators, and disturbers of the peace of the commonwealth," "so that strifes" "are likely to arise thereby," and this would indicate that appre- hension of a breach of the peace was the ground of the war- rant. But the discretion of the conservator is not so limited. It extends to all who are "not of good fame," and applies (Bl. Comm., 256) to causes of scandal '■'■contra honos mores'''' as well as '■^contra pacemP There is no oath required for issuing the warrant for good behavior merely. There should be information or complaint, and it should appear that inter- ference is necessary, and there should be evidence of evil fame; But, as by section 4093, every recognizance must be for the peace as well as for good behavior, the complaint should 11 K C, p. 554, chap. 140. 1845-'6, p. 64, chap. 87. 1847-'48, chap. 120, pp. 127-'8-'9, sees. 1-17; p. 129, sec. 1. C. 1849, chap. 201, sees. 1-9, 16. 1859, chap. 63, sec. 1. 1866-7, chap. 118, sees. 1-9, 16. C. 1873, chap. 196, sees. 1-9, 16. 1877-78, chap. 311, sees. 1-9, 16. COMMISSIONERS IN CHANCEEY. 145 be on oath, as required for surety for the peace. Great cau- tion should be exercised. (Hening's Justice, 685.) The recognizance is for such time as the conservator may think proper, not exceeding one year. But for a warrant for surety of the peace there must be complaint sustained by oath. Every warrant should describe the offence. Section 3913. " If complaint be made to any such conserva- tor that there is good cause to fear that a person intends to commit an offence against the person or property of another, he shall examine on oath, the complainant and any witnesses who may be produced, reduce the complaint to writing, and cause it to be signed by the complainant." Notice, "intends to commit," not "has committed"; a,lso, "offence" "against person or property." The complaint must be reduced to writing by the conservator and signed by the complainant. The conservator should also examine aiiy witnesses who may be produced. Section 3914. " If it appear proper, such conservator shall issue a warrant, reciting the complaint, and requiring the person complained of forthwith to be apprehended and brought before him or some other conservator." (3 Munf. 458.) The warrant may be directed to a sheriff, or constable, or sergeant. (Sections, 4004, 3220, 3581, 3955.) As to what is " good cause to fear," etc., see 15 Gratt., p. 388, and 28 Gratt., p. 905. Say a reasonable ground of fear, supported by circumstances sufficiently strong in them- selves to warrant a cautious man in the belief that the person complained of intends to commit the offence. The offence is to be committed in the immediate present or in future, but surety of peace may be demanded (Mayo's Guide, 630, etc.,) of all persons who, having before been bound to keep the peace, have broken it and forfeited their recognizance, proba- bly under the idea that the same ground of apprehension exists, while the protection has been removed. 146 COMMISSIOWEES IN CHANCEET. The words " offence against person or property " are broad enough to cover any crime or misdemeanor ; the statute en- larging the protection, the common law being confined to offences against the person. A reasonable view would limit action as to suspected offences against property to such as are likely to create or at least tend to cause a breach of the peace. In like manner the words "of another" extend the causes beyond injuries to the complainant. Yet, except in cases where the person likely to be injured is the complainant, or occupies some such relation to him as wife, child, or ward, etc., unless a breach of the peace is probable, or the injury would tend to such breach, the conservator will hardly grant the warrant, nor will he do so unless the oath excludes malice, nor even then if ho thinks the complaint made merely from malice or vexation. Sec. 3919. "If a person go armed with a deadly or dan- gerous weapon, without reasonable cause to fear violence to his person, family, or property, he may be required to give a recognizance, with the right of appeal, as before provided, and like proceedings shall be had on such appeal." Proof of such facts should be required. They are taken to imply an intent to break the peace. Sec. 3920. "If a person, in the presence of a court or a conservator of the peace, make an affray, or threaten to kill or beat another, or to commit violence against his person or property, or contend with angry words, to the disturbance of the peace, he may, without process or further proof, be re- quired to give a recognizance." It is already disturbed; no process or further proof is necessary. (5 Ean. 675.) Any person may, in such case, be required by the conservator to made the arrest. (Code, sec. 3759.) Sec. 3915. " When such person appears, if the conservator, on hearing the parties, consider that there is not good cause for the complaint, he shall discharge the said person, and may give judgment in his favor against the complainant for COMMI88IONEES IN CHANCERY. 147 his costs. If he consider that there is good cause therefor, he may require a recognizance of the person against whom it is, and give judgment against him for the costs of the prose- cution, or any part thereof; and, unless such recognizance be given, he shall commit him to jail by a warrant, stating the sum and time in and for which the recognizance is directed. The person, giving judgment under this section for costs, may issue a writ oi fieri facias thereon, if an appeal be not allowed ; and proceeding thereupon may be according to sec- tions twenty-nine hundred and forty-nine and twenty-nine hundred and fifty-one." ^ It will be observed that the conservator "may require a recognizance." Wliat if the person refuse to give it ? The conservator is then to commit him to jail, the power being incident to the duty of requiring. It would be well for the statute to direct in terms as is the case under section 3928. It is given generally by section 4095. The mittimus, or warrant of commitment, should describe the offence. The nature of the recognizance is not described in section 3915 above; it is given in section 4093. The recognizance is to be filed in the clerk's office of tlie county or corporation in which ^ is taken. Sec. 4093. " Recognizances in criminal cases shall be pay- able to the Comnaon wealth of Virginia. Every recognizance under this chapter, or under chapter one hundred and ninety- one, and the chapters following to one hundred and ninety- nine inclusive, shall be in such sum as the court or ofiicer requiring it may direct. If it be to answer for a- misdemeanor, or if required of a witness, it shall be with or without se- curity, as the court or officer may direct; but, in all other cases, shall be with surety deemed sufficient by the court or officer taking it. The condition, when it is taken of a person charged with a criminal offence, shall be,, that he appear be- fore the court, judge, or justice before whom the proceeding 1 1845-'46, p. 64, chap. 87; 1847-'48, p. 128, chap. 14, sec. 4, 5, 6, 7, 8. C. 1849, chap. 201. 148 COMMISSIONERS IN CHANCERY. on such charge will be, at such time as may be prescribed by the court or officer taking it, to answer for the oflEence with which such person is charged; and when it is taken of a wit- ness in a case against any such person, shall be, tliat he so appear to give evidence on such charge ; and, in either case, shall be that the person or witness shall not depart thence without the leave of said court, judge, or justice; when taken for any other purpose than to appear so to answer or give evidence, it shall be with condition that the person of whom it is taken shall keep the peace and be of good behavior for such time, not exceeding one year, as the court or officer re- quiring it may direct; and if such court or officer direct, it may, when taken of a person so charged, be with condition for so keeping the peace and being of good behavior, in ad- dition to the Qther conditions of his recognizance." Sec. 4095. "A person not giving, and for whom no other person gives, a recognizance required, shall be committed to jail. He shall be discharged therefrom when such recogniz- ance is given before the court or a conservator of the peace; or, if it be to appear and give evidence, when such evidence if given ; or, if it be to keep the peace and be of good beha- vior, when the period for which it was required h^ elapsed ; or in any case when the discharge of such person is directed by the court in whose jail he is." Sec. 4096. "A person, taking a recognizance out of court, shall forthwith transmit it to the clerk of the court for ap- pearance before which it is taken ; or, if it be not for appear- ance before a court, to the clerk of the county or corporation in which it is taken, and it shall remain filed in the clerk's office." If an appeal is taken on giving the recognizance to the court of the county or corporation, tlie conservator shall re- cognize such of the witnesses as he thinks proper to appear at such court at the next criminal term thereof. Sec. 3916. "A person, from whom such recognizance is required, may, on giving it, appeal to the court of the county COMMISSIONBES IN CHANOEEY. 149 or corporation ; and, in such case, the officer, from whose judgment the appeal is taken, 'shall recognize such of the witnesses as he thinks proper." No provision is made for a commissioner keeping the. execution book referred to in sections 2944, 2951. He can issue executions only for costs. For forms of pi'ocedure, see Nos. 53-62. TITLE XL • Of the Fees of Coinmissioners in Chancery. Sec. 26,84. " The fees of commissioners of accounts for the special duties hereinbefore imposed upon tliem shall be the same as are now allowed by law to commissioners in chan- cery, and the said commissioners of accounts shall, in all cases, return with their accounts affidavits subscribed by them as to the time they were occupied in settling said accounts. And unless and until such affidavits are returned, the said commissioners of accounts shall not be entitled to any com- pensation for their services." 3499. "Each of the officers hereinafter mentioned may, for the services performed by him by virtue of his office, charge the following fees, to-wit : Notaries and Justics of the Peace. Sec. 3500. ..... " For taking and certifying the acknowledgment of any deed or writing, . . . / . . . . .30 " For administering and certifying an oath, unless it be the affidavit of a witness ; • or acknowledgment of bail ; or issuing process of attachment, . . . .25 " For taking and certifying affidavits or depositions of witnesses, where done in an hour, .... .75 " If not done in an hour, for any additional time, at the rate per hour of ...... . .75 " For other services, the same fees as a clerk of a county or corporation court for like services." ' • IB. C, p. 317, chap. 13; p. 522, chap. 132. 1822-'23, p. 40, chap. 39. 1839, p. 41, chap. 63, sec. 4. 1839-'40, p. 44, chap. 51. 1878-79, p. 335, chap. 64, sec. 2. 1879-'80, p. 74, chap. 97, see. 2. 1883-'84, p. 55, chap. 41. COMMISSIONEKS IN CHANCEKY. 151 Commissioners in Chancery. Sec. 3501. "For services which might be performed by- notaries, the like fees for like services ; for any other service, such fees as tlie court, by which the commissioner is ap- pointed may from time to time prescribe, not exceeding seventy-five cents, where less than an hour is employed ; and if more than an hour he employed, not exceeding the rate of seventy-five cents for each hour; but nothing herein con- tained shall affect the fees of commissioners in chancery re- siding in the cities of Kichmond, Norfolk and Alexandria." ^ Commissioners in certain cities. Sec. 3502. "A commissioner in chancery, residing in the cities of Richmond, Norfolk or Alexandria, may charge for services which might be performed by a notary, the like fees for like services, and for any other services, such fees as the court by which the commissioner is appointed may from time to time prescribe, not exceeding one dollar, where less than an hour is employed ; and if more than an hour be em- ployed, not exceeding the rate of one dollar for each hour." ^ Sec. 3503. "A commissioner returning a report shall an- nex thereto an affidavit, that he was diligently employed not less than hours in performing the services for which the fees stated at the foot thereof are charged. Until such affidavit is made, no bill shall be made out for said fees. A commissioner shall not be compelled to make out or re- turn a report until his fees therefor be paid, or security given him to pay so much as may be adjudged right by the court to which the report is to be returned, or, if it be a Cir- cuit Court, by the judge thereof in vacation, unless the court or judge see cause to order it to be made out and returned without such payment or security, and shall so order." ' > 1 K. C. p. 200, sec. 22; p. 201, sec. 26; p. 317, sec. 14. 1825-26, p. 16, sec. 3. 1826- '27, p. 19, sec 2, 1878-79, p. 336, sec. 3. 2 1852. p. 74, .chap. 82. 1857-'58, p. 48, chap. 62. 1870-71, p. 289, chap. 200. 1878-79, p. 336, sec. 3. 3 1 E. C. p. 317, sec. 14. l825-'26, p. 16, sec. 3. 152 C0MMISSI0NEB8 IN CHANCBEY. Sec. 3504. "A notary or other oflBcer returning affidavits or depositions of witnesses, and a commissioner returning a report, shall state at the foot thereof the fees therefor, to whom charged, and, if paid, by whom." For clerk's fees, see section 3505. Sec. 3510. "The fees mentioned in this chapter shall be chargeable to the party at whose instance the service is per- formed, except that feep for entering and certifying the at- tendance of witnesses, and the proceedings to compel pay- ment for such attendance, shall be charged to the party for whom the witness attended." (1 K. C. p. 312.) Sec. 3514. "Every oflScer, to whom section thirty-four hun- dred and ninety-nine applies, shall keep a fee book, wherein shall be entered the fees for every service performed by him, and the fact of such fees being paid, or of a bill being made out therefor, which ever shall happen iirst. The fee books of a clerk shall be submitted to the inspection of the commis- sioners appointed to examine the clerk's office." ^ Sec. 3515. " No person shall be compelled to pay any fees before mentioned until there be produced to him a fee bill signed by the officer to whom the fees are due, expressing the particulars tor which such fees are charged ; and no such fee bill shall be made out for any service not previously per- formed, unless a person desire to pay before such performance, in which case there slrall be mentioned in such fee bill the na- ture of the service, and the fact that it is to be performed ; nor shall an officer, for any service, make out a fee bill for more than is allowed therefor, or charge full fees to more than one party for the same service ; but in such case the pay- ment of the fee by any party shall be a satisfaction for such service ; nor shall any officer charge a constructive fee ; nor shall he, for the same service, attempt to obtain payment a second time, or even make out a fee bill a second time, unless he endorse the fact and swear that the former bill remains ' 1 E. C, p. 281, sec. 21; p. 302, sec. 8; p. 312-'13, sees. 1, 2. 7; p. 318, sees. 16, 17. 1825-'26, p. 18, sec. 15. 1839, p. 41, sec. 3. COMMISSIONERS IN CHANCERY. 15 S unpaid. 'Constructive fees' shall be construed to include fees for services not actually rendered, or for copies not ac- tually furnished the party at his request, or for services which enure to the benefit of more than one person, and have al- ready been charged to or paid by another. If any officer violate any of the provisions of this section he shall forfeit five dollars to any person prosecuting therefor. The circuit or county court of a county, or circuit or corporation court of a corporation, in which an officer resides, may, on motion, after i-easonable notice to him, quash any fee bill made out by him contrary to law." ^ Sec. 3518. "Any officer mentioned in this chapter, or per- sonal representative of a deceased clerk, may deliver fee bills, duly signed, to any sheriff, treasurer, constable, in any magis- terial district, or high constable of any city, who shall receive and endeavor to collect the same. Such sheriff, treasurer, constable, or high constable, may disti-ain for such fee bills, and the sheriff for any fee bills due to him, such property of the person to whom the fee bills are charged as might be levied on under a writ of fieri facias against him ; and sec- tions six hundred and twenty-seven, six hundred and twenty- eight, and six hundred and twenty-nine shall apply to such fee bills in like manner as to taxes." ^ Sec. 3519. " Every treasurer, sheriff, constable, or high con- stable, to whom such fee bills are so delivered, shall, within twelve months after such delivery, account therefor with the officer or personal representative entitled thereto, by return- ing such as he may not have collected, with an endorsement thereon, that the person charged with the fees has no estate in his county, corporation, or district, out of which the same could be made, and by paying to such officer or personal rep- resentative the amount of all not so returned, deducting a , ^Idem., IK. C, 1839, p. 40, sec. 2. 1879-'80, p. 210, sec. 20. 2 Ibid., IB. C, 1819, p. 281, sec. 22 ; p, 302, sec. 7 ; p. 312, sec. 2 ; p. 319, sees. 21, 22. 1822-'23, p. 16, sec. 7. 1852, p. 71. 1870-'71, p. 247, see. 24; p. 344, sec. 24. 1871-72, p. 456, sec. 24. 1875-76, p. 131, sec. 24. 10 154 COMMISSIONERS IN CHANCERY. commission for himself of ten per cent, on such amount. If he fail so to do, judgment may be obtained, on motion, against him and his sureties, or his and their personal repre- sentatives, or, if he be a sheriff or treasurer, against any deputy who may have signed the receipt for said fee bills and his sureties, or his and their personal representatives, for the amount with which such sheriff, ti-easurer, constable, or high constable, is chargeable, and damages thereon, not exceeding fifteen per centum per annum from the expiration of the said twelve months. Such judgment may he, on motion after notice, in the circuit or county court of the county, or circuit or corporation court of the corporation, wherein said sheriff, treasurer, constable, or high constable, resides. On such mo- tion, the signature to any receipt for fee bills mentioned in the notice, as signed by any person, shall be deemed to be his genuine signature, unless an affidavit be made denying it." ^ Section 3520. " No fee l^ill shall be collected by distreae, warrant, or suit after five years from the end of the year in which the service was performed that is charged therein, un- less within five years before the institution of such proceed- ings it was returned by an ofiicer, with such endorsement thereon (properly dated) as is mentioned in the preceding section ; and, after five years from the date of such endorse- ment first made, no fee bill shall be collected by distress, warrant, or suit." (1889, p. 40, chap. 63, sec. 1.) Section 3521. "An officer or witness to whom for fees or attendance anything is due that is taxed in the costs for which there is judgment or decree, may, within one month after such judgment or decree, lodge in the clerk's office of the court wherein the same is rendered his fee bills for such fees or certificate for such attendance. The amount due each officer or witness for what is so lodged shall, and the amount due the clerk himself for fees so included, may, within the said month, be noted in the margin of the order or execu- ' 1 K. C, p.' 281, sees. 23-26. 1870-71, p. 344, sec. 25. 1871-72, pp. 456, 457, sec. 25. 1875-76, p. 131, see. 25. COMMISSIONBES IN CHANOEEY. 155 tion book opposite the entry of the case. An officer or wit- ness whose fees or certificate may be so noted, shall b°. paid the same out of the costs by the person against whom the judgment or decree is, and the right to such payment shall be valid against any assignee of the judgment or decree. When the clerk issues execution in such case he shall endorse thereon how much of said costs is for each officer or witness whose fees or certificiate are so noted ; and the officer collect- ing said costs shall pay the same accordingly to those entitled thereto." {Ibid., sec. 2.) Section 3522. " No officer mentioned in this chapter shall be obliged to perform services for a non-resident of this State, unless payment of his fees for said services be secured ; nor to perform services for any person against whom he has had fee bills returned which remain unsatisfied, unless he be secured payment of his fees for the services desired, or performance ©f said services be directed by a court." ' Section 3538. "A poor person may be allowed by a court to sue or defend a suit therein, without paying fees or costs; whereupon he shall have, from any counsel whom the court may assign him, and from all officers, all needful services and process, without any fees to them therefor except what may be included in the costs recovered from the opposite party." (1 K. C, p. 481, sees. 1-3.) Section 3539. " In any suit (except where such poor person is plaintiff) there may be a suggestion on the record in court, or (if the case be at rules) on the rule docket, by a defendant or any officer of the court, that the plaintiff is not a resident of this State, and that security is required of him. After sixty days from such suggestion, the suit shall, by order of the court, be dismissed, unless, before the dismission the plaintiff be proved to be a resident of the State, or security be given before said court, or the clerk tliereof, for the pay- ment of the costs and damages which may be awarded to the defendant, and of the fees due or to becoroe due in such suit IE. C, p. 367, sec. 18; p. 495, sec. 28. 1830-'31, p. 67, sec. 73. 156 0OMMI8SIONEES IN CHANCERY. to the officers of the court. The security shall be by bond payable to the commonwealth, but there need only be one obligor therein, if he be sufficient and a resident of the State. The court before whom or before whose clerk such bond is given may, on motion by a defendant or officer, give judg- ment for so much as he is entitled to by virtue of said bond." The fees of a commissioner in chancery are classified by statute in respect to services which might be performed by notaries and other services. A. Fees for services which might he performed hy notaries. The fees are given above in section 3500, except for such services of notaries as entitle them to "the same fees as the clerk of a county or corporation court for like services" (3505), g. $r,.- For issuing any summons or notice, original, . . .20 And for each copy, . . . . . . . .10 For administering oath to witness claiming fee for at- tendance, and entering and certifying same, . . .30 For any copy to go out of the office, two cents for every thirty words, or else a specific fee of . . . .20 For making out in any other manner than copying any paper to go out of the office, which is not otherwise provided for, three cents for every thirty words, or else a specific fee of . . . . . . .25 For administering an oath and writing certificate thereof where required, . . . . . . . .15 For filing a paper, ....... .15 For each exhibit therewith, ..... .05 B. J^or other services than such as might he performed by notaries. For taking depositions or proof to be used in a matter be- fore him, for reports of all kinds, for proceedings under a decree or order of reference, and generally as commissioner of accounts, such fees as the court which appointed him may COMMISSIONERS IN CHANCERY. 157 prescribe, not exceeding seventy-live cents where less than an hour is employed; and if niore than an hour is employed, not exceeding seventy-five cents per hour, except in the cities of Richmond, Norfolk and Alexandria, where they are not to exceed one dollar where less than an hour is employed; and if more than an hour be employed, not to exceed one dollar per hour. The courts in these cities usually prescribe one dollar per hour, and the courts elsewhere in the State usually prescribe seventy-five cents ah hour. In respect to summons and the like, in a matter before a commissioner, where an hour is required the statute covers the ease; but whenever less than an hour is required, the commissioner may no doubt charge the specific fees men- tioned above (A). For summons issued by the commissioner of accounts to a delinquent fiduciary and copy, the fee, thirty cents, is some- times made fifty cents, to include the examination for de- linquents required by statute. "Tlie fees for affidavits, depositions and reports are to be stated at the foot thereof, and the statement is to show to whom they are charged, and if paid, by whom." (Sec. 3504.) "To a report the commissioner shall append an affidavit that he was diligently employed so many hours in the services for which the fees are charged." (Section 3503.) As to commissioners of accounts, see section 2684, ante. These sections are the only express direct statutory restraint upon the commissioner against an overcharge; but as his charge cannot be enforced except by fee-bill, the restrictions and penalty mentioned in section 3515, presently referred to, constitute additional restraints. In case of a payment in ad- vance at the desire of a party, of course there can be no af- fidavit as to the time, and the bill mentioned in such connec- tion in section 3515 is rather a receipt than a fee-bill. In point of fact, in reports in suits, it is not unfrequent for counsel to adjust the fee with the commissioner, in which 168 COMMISSIONERS IN CHANCERY. case there is no affidavit, the decree being made to fix the fee. And for ahnost any first report ex parte by a commissioner of accounts the services and duties incident thereto, and to the bond, etc., unquestionably justify a chai-ge for two or three hours. For merely clerical work, the fee of seventy-five cents, in some cities one dollar, an hour, is sufficient. In examinations and reports under decrees, the theory of the law is that the work, except the hearing and report, is done by the counsel ; in reality the commissioner is forced to do much of it, and if his charge on that account is subject to objection technically, the objection may be overborne by the consideration that the general expense of the suit would bear more heavily on the clients if the commissioner should force the counsel to it. In this connection it may also be remarked that sometimes matters for the consideration of a commissioner require the knowledge and attention of a judge. If the matter is a point of law wliich can be conveniently referred to the judge, the commissioner, if in doubt, should so refer it, under section 3322, rather than consume time over it ; but the matters of fact and kw, especially in questions of title, liens, descents, and distributions, are often so involved that the commissioner of necessity has to form his own opinion, and his charge may include the time in which he is engaged in the ccmsideration of the matter. The fees are to be'charged to the person or party at whose instance or by whom the matter is referred to the commis- sioner, except that proceedings concerning the attendance of witnesses, that is entering and certifying attendance, and the proceedings to compel attendance, are to be charged to the party for whom the witnesses attended. (Section 3510 above.) The commissioner is to " keep a fee book wherein shall be entered the fees for every service performed by him, and the fact of such fees being paid, or of a bill l)eing made out there- COMMISSIONERS IN CHANCERY. 159 for, whichever shall happen first." (Section 3514 above.) This is a matter of course, and is usually attended to, in the main. The entry of the charge for every service, at least at the completion of the matter, is necessary for the commis- sioner to know what is due and to be collected ; but the statute requires that entry should be made of every fee paid ; this is frequently neglected when the payment is made at the completion of the matter ; it should nevertheless be done for the protection of parties, especially where, as sometimes hap- pens, payment is made in advance. Of course the entry of payment should always be made, and also the entry of a bill made out, for the bills have the force of an execution as to right to levy. (Section 3518 above, and 627, 628, 629.) The services having been performed, and the charges hav- ing been properly made and entered, it is to»be considered how the commissioner is to collect his fees. When the party offers to pay, whether before or after the performance of the service, the commissioner must give a receipt for the money, and note the payment in his fee book. When such payment is not made the commissioner can col- lect only by a fee-bill. " No person shall be compelled to pay any fees before men- tioned until there be produced to him a fee-bill signed by the officer to whom the fees are due, expressing the particulars for which such fees are charged." " No such fee-bill shall be made out for any service not previously performed ;" the ap- parent exception is in the case of the receipt above mentioned in the case of payment in advance. " Nor shall an officer for any service make out a fee-bill for more than is allowed there- for." Consider where, for reports on reference, counsel agree upon a fee as mentioned al)ove, "Or charge full fees to more than one party for the same service" ; that is, for one service there is but the prescribed fee, no matter how many parties, and only that fee is to be charged in all. " Nor shall any officer charge a constructive fee," that is stated to mean for services supposed to be, but not actually rendered ; " nor 160 COMMISSIONERS IN CHANCERY. for the same service attempt to obtain payment a second time," meaning of course where he has been paid once ; " or even make out a fee-bill a second time, unless he endorse the fact and swear that the former bill remains unpaid." For each item in which an officer shall violate this section, he shall forfeit five dollars to any person prosecuting therefor." Court may quash any bill made out " contrary to law" ; re- ferring to the propriety of the charge, not the form of the bill when it states the nature of the service. (Section 3515.) The fee bills having been made out and signed by the com- missioner, may be delivered bj' him to the proper officer for collection, as mentioned above in sections 3518, 3519, 3520, and he can hold the collecting officer liable under section 3519. In general, in cities at least, the fee-bills of a commissioner may be, for the most part, collected by a private collector ; and, as a matter of convenience to parties, a commissioner's fees for reports in a pending suit are permitted to lie over until disposition of the subject-matter is made, or at least until a decree establishing the liability for costs, but in all such cases it is as well for the commissioner to have his costs made a part of the judgment or order, as will be presently mentioned under section 3521. When a commissioner desires to deliver his bills to the proper officer to force payment or collection, he should do so within five years from the end of the year in which the ser- vice was performed. (Section 3520.) If in a county, he delivers them to the "sheriff, treasurer, or constable in any magisterial district " ; if in a town, " to the high constable." The bills are to be delivered to the officer. He is empowered to distrain therefor, unless five years have elapsed without previous delivery and return, as under section 3520, and must account for them within twelve months. His conipen- eation is ten per cent, of amount collected. The collecting officer may be proceeded against, for failure to account, under section 3519. 00MMISSI0NEK8 IN CHANCEEY. 161 Aicommissioner who desires his fees for services in any suit to' be secured by the judgment or decree therein, must, within one month after the said judgment or decree is ren- dered, lodge in the clerk's oflSce of the court wherein it is rendered his fee-bills for such fees, and request the clerk to note the amount in the order or execution book, opposite the entry of the case, as provided by section 3521 above. The commissioner may require security of a non-resident of this State, or of a resident against whom he has fee-bills returned which remain unsatisfied, unless performance with- out security be directed by the court. (Section 3522.) And, before making out or returning his report, he may require security, under section 3503. The court may allow a poor man to sue, etc., without pay- ing fees. (See above, section 3538.) PART lY. COMMISSIONEES' FORMS. No. 1. — Notice to be sened oi- posted. Section 3207, 3224^'28, or mto counsel in this State under Section 3232, of time and place jixed for proceedings under a decree or order of reference. In tlie Circuit (or, Corporation) Court of Norfolk County (or City.) John EoBEKTS, etc., Plaintiffs, \ vs. Y In Ohancery. William Thomas, etc.,... Defendants. ) or In the matter of > n, ^ ' - „ r Ex pwrte. John Bobeets, etc. J To the parties to the above named cause (or proceeding), (and to any, not parties, directed to be notified by name.) Take notice that, pursuant to decree in this cause (or order in this matter) of 18 , I shall on , the day of 18 , at my office (or place elsewhere fixed) in the county (or city) afore- said, proceed to inquire into, and make the statements concerning, the matters mentioned in the said decree (or order), and thereby referred to me as one of the commissioners in chancery of the said court. (If any not parties to the suit or proceedings, are directed to be notified, it may be as well to append or insert a memorandum of the matters affect- ing them, as sales of lands of insane persons, liens, etc. ) A. B. , Commissioner in Chancery. No. 2. — Notice to be publislied, Sectiom 3225-'28, 3321, of time and place fixed for proceedings under a decree or order of reference. To John Eobeets, (and others by name,) ] and to >- In Chancei-y, {oi' ex parte.) William Thomas, (and others by name,) ) In the Circuit (or Corporation) Court of the county (or city) of Norfolk. Take notice that, pursuant to decree (or order) in the above cause (or pro- ceeding) of 18 , I shall on the day of COMMISSIONERS FORMS. 163 18 , at my office (or place elsewhere fixed) in the county (or city) afore- said, proceed to inquire into and make the statements concerning, the matters mentioned in the said decree (or order), and thereby referred to me as one of the commissioners in chancery of the said court. Especially con- cerning — (here give a summary of such matters, and if the decree or order so direct, add the following clause :) "together with any other matters, specially stated, deemed pertinent by the commissioner, or that may be required by any party interested to be so stated. " A. B., Oommimoner in No. Z.— Submission in writing by commissioner, wlio doubts as to any point, to the court, or to tlie judge tliereofin mcation, for instructions, (See. 3322.) John Kobeets, etc., ) ' Or ) ■ys V In Chancery. In the matter of V Ex parte. WiiLiAM Thomas, etc., ) John Kobekts, etc. ) To the Hon. C. D., Judge of the Court of the county (or city) of Upon a reference in the above cause (or matter) under decree (or order) of the said court of 18 , having inquired into the matters referred, I find myself in doubt as to, and therefore submit for in- struction by the court, (or your honor), the following point arising before me under the reference. (Here state the point and the doubt. ) Bespectfully submitted, A. B., Commissioner in Chancery. No. 4. — Report upon, reference under decree or order. John Kobekts, etc., ) , Or \ vs. v In ChMMISSI0NEK8' FORMS. No. 13. — Sumiiww under Section 3370, to a party to cmiwer interrogatories. The Commonwealth of Virginia, To the Sheriff (or Sergeant) of the county (or city) of Norfolk, — greeting. We command you that you summon party to the cause or matter depending in our Circuit (or County or Corporation or Hustings) Court of county (or city), between John Koberts, etc., and Wm. Thompson, etc., (or in the matter of John Koberts, etc., ex pa/rte), and now before the undersigned commissioner in chancery of the court of , to answer upon oath interrogatories filed with the said com- missioner on the day of 18 , by a per- son interested in the said cause (or matter), a copy of which interrogatories accompanying this writ is to be deli-vered to the said at the time of service of this summons ; and you will make return thereof within days («oi exceeding dxty). "Witness, etc., as in Form 8. A. B., Gormnisaioner in Glwncery. To copy of above, add, Teste, A. B., Commismner. If against non-resident plaintiff, the service to be on his attorney, and ten. days' time given. The officer's return, showing manner of service, should mention service of the copy of interrogatories. No special report of failure is prescribed, probably because it can be mentioned as part of the proceedings specially stated, as in Form No. 4. No. 14. — Summons under Seetion 3371, to a party to produce book of accounts or writing. Use Form 11 as far as to the words ' ' to answer, " and add : "to produce the writing, or an exact copy of that part of a book of accounts that is mentioned in the affidavit filed with the said commissioner on 'the day of 18 , by , a person interested in the said cause (or matter), a copy of which affidavit accompanying this writ," etc., as in Form 13. No. 15.— Oath of Office. The form of an oath of office is given in the Code, Sections 168, 169, 170, see ante, Title I. The oath of office is to be subscribed and sworn to before the person be- fore whom it-is taken, and certified by him. The form of certificate may be as follows : Sworn to and subscribed before me, a commissioner in chaniery for the Corporation Court of the city of Norfolk, this day of 18 A. B., Commissioner. FOKMS. 169 Or this, — » Personally appeared before me, A. B. , a commissioBer in chancery for the Corporation Court of the city of Norfolk, this day of 18 , V. W., -whose name is subscribed to the writing above, and sub- scribed the same, and made oath thereto, in my corporation aforesaid. Given under my hand, this day of , 18 . A. B., No. 16. — Oath of Attestation. "I solemnly swear (or affirm) that," then state the fact to be attested, following the language of the statute, if any is applicable. ' ' So help me God. " The anti-dueUing oath. Code, Section 169, comprises an oath of attestation of fact, and Section 168 an oath of promise or undertaking. The certificate to an oath of attestation of fact may be in either of the forms given in Form No. 15. No. n.—Affidamt. The Form No. 16 above is the form of an affidavit, but more commonly the affidavit is made after the statement of fact is put in writing and signed, and such statement is substantially or formally repeated to the affiant after the preliminary words, "you do solemnly swear" (or "aflfirm"), and pre- ceding the words, "so help me God," after which the witness kisses the book. The certificates given in Form 15 will answer in this case, but commonly after the words "made oath," omit "thereto," and after "aforesaid," add the following : ' ' that the statements made in the said writing, so far as made of his own knowledge, are true, and that so far as made upon knowledge or information derived from others, he believes them to be true. " No 18. — Oath of Witness in Bepositions. ' ' You shall true answer make to such questions as shall be propounded to you relative to the matter now before me, so help you God. " The oath is not put in writing, and is certified only in the general certifi- cate to the depositions, and in the preliminary statement, " V. W., being first duly sworn, deposes and says." No W.— Depositions. John Bobekts, etc. , J vs. >- Depositions. WnxiAM Thomas, etc. ) The depositions of V. W. and others, taken before me, A. B., a commis- sioner in chancery of the court of the of Norfolk, pursuant 11 170 commissioners' foems. to the notice hereto affixed, at my office (or elsewhere) in the said county (or city) on the day of , 18 , and subsequent days by ad- journment, to be read as evidence on behalf of , in a certain action at law (or suit in chancery or other matter) depending in the court of the county (or city) of , wherein John Roberts, etc., is plaintiff, and Wm. Thomas, ptc, are defendants. Date. Present : A. A. , attorney or counsel for, etc. B. B., attorney or counsel for, etc. V. W. , of lawful age, offered on behalf of , (state any objections, if any, ) being first duly sworn, deposes and says — Examined by B. B. , counsel for Quest. 1. What is your age, residence, and occupation ? Ans. Q. 2. A. And so on, noting objections as made to questions or answers. Cross-examined by A. A. , counsel for X-QnEST. 1. Ans. X-Q. 2. A. Ee-examined by B. B. , etc. : E. -Quest. 1. Ans. And further, this deponent saith not. After, or waiving, reading, witness signs, — V. W. X. Y. offered as a witness, etc. , as before. If at any time adjournment is necessary, then state — "The further taking of these depositions is continued until at ." A. B., Oommismner. When resumed, give date and place, and go on as before. When the depositions are closed, append this certificate, — State of Virginia, county (or city) of , to-wit : I, A. B., a commissioner in chancery for the court of the coimty (or city) of , do hereby certify that the foregoing depositions were duly taken under oath after notice, and subscribed before me, and at the times and places as above mentioned. Given under my hand, this day of , 18 A. B., Commissioner. Fee charged to oommissioneeb' foems. 171 No. 20. — Entry of witness' attendance. V. W. attended before me, on the day of 18 ,Jas a witness duly summoned on behalf of On his oath he is entitled to — Mileage (beyond ten), at i cents each way, $ Tolls and ferriages, And for attendance days at 50 cents Total, $ The entry may be made on the summons, which may be returned by the commissioner with the testimony or with his report. No. 21. — Oertifimte of witness' attendance. Commissioner's Office, 18 I, A. B. commissioner in chancery of the court of , do hereby certify that V. "W., a "witness who attended before me under a summons on behalf of in a matter, J. K. m. W. T., to testify before me on the day of 18 , is upon his oath entitled to the following amounts : For attendance, two days at 50 cents, one dollar. For travelling mUes, over ten necessarily traveled, at i cents, going and the same returning. cents. For toUs and ferriages. cents. In all ■* dollars, and cents, $ A. B. Oommission&c in Chancery. No. 22. — Report of proceedings, under Section 3369, to perpetuate testimony. To the Hon : Circuit (or Corporation) Court of the of Norfolk. Upon the petition of O. P. , stating that he is desirous of perpetuating the testimony of witnesses as to the matter stated in the petition, which is re- turned herewith, and that no' suit is pending in regard thereto. I appointed a, time and place for proceeding on the said petition, and gave reasonable notice thereof, returned herewith, to the persons stated to be such as may be affected by the testimony. (I also appointed F. G. , guardian ad litem. 172 commissioners' foems. to attend on behalf of (name any of tliem), an infant or insane person.) At sucli time and place I took the evidence of all witnesses adduced in re- spect to the said matter by the petitioner or by persons so affected, and now return herewith the testimony so taken by me to the clerk's ofSce of this court by which I was appointed. The testimony consists of the deposi- tions of and and etc, and the exhibits therein mentioned. Fees charged to the said Respectfully submitted, A. B. Oonvmiasioner in OJumcery. petitioner, $ No. 23. — Beport, under Section 2671, of failure to give proper bond. Office op tbde Oommisionek or Accounts. CouKT, City op Noefolk. To the Hon. judge of the said court : On the day of 18 , 1 obtained from the clerk of this court a list of the fiduciaries, authorized to act as such, under orders entered at the term, and I have examined as to each fiduciary, whether he has given such bond as the law requires; and it appearing that the follow- ing named have given no bond, or that the bond is defective, I now make report thereof to the court at its next term. Name of fiduciary, etc. Decedent or living person. Want of bond or defect. 1 All of which is respectfully submitted, Gommissioner of Accounts. > S a ^ CM So . " 3 Sag a o o n f< a CM V O f- V e B^ .9 1^ "H Jri IS o'o'B 0, !>• O (S « " s o Q 14 o ii eS O 174 'commissioners' fobms. No. 25. — Inventory and Appraisement. Invbntoey AiJi) Appkaisbment op the Estate op Deceased. We the undersigned , who were appointed by the Court of the of on the day of 18, , to appraise the goods and chattels of deceased, (and real estate in the said ,) being first duly sworn, have appraised such of said goods and chattels as were produced to us, (and real estate in the said ,) as follows: \ Appraisers. I the of , deceased, do certify that the foregoing in/ventory embraces all the estate of the said , deceased, which has come to my possession or knowledge, or which is under my management, or subject to my authority in my fiduciary character. to-wit : City (or county) of This day of 18 , personally appeared before me, a (notary, etc.,) in and for the aforesaid, , and who made oath that they would appraise such goods and chattels of deceased as may be produced to them, and also any real estate in the said city (or county) which the personal representative is authorized to sell, or of which he is authorized to receive the rents and profits, and a true inventory of the same and the value thereof make and return according to law. Given under my hand the day and year above written. Inspected, and found to be in proper form and approved this day of 18 In the clerk's office of the On the day of appraisement record. Commissioner of Accounts. Court of the of , , 18 , the foregoing inventory and was this day received and admitted to Teste, , C. C. D. C. 175 No. 26. — Inventory. Inventoky of the estate of — Minor, (or mm compos, etc.) State the property or interest. Fidxioiary's certificate as in form 24, omitting the word ' ' deceased, " ex- cept in case of executor or administrator e. t. a. when no appraisement is re- quired by will, and the court does not direct one to be made. Commissioner's certificate and clerk's certificate, as in Form 25. No. 27. — Account of Sales. Account of sales made by , executor (or guardian, etc.,) of Give date, list of property sold, price, and names of purchasers, and credits and security. Commissioner's certificate and clerk's certificate, as in Form 25. No. 28. — Inventory of Property Sold. Inventory of property sold and account of sales made by trustee under a deed of and bearing date the day of 18 , and first admitted to record in the clerk's office of the court of the of Give dates, lists of property, prices, and names of purchasers, and credits and securities. Trustee. Commissioner's certificate and clerk's certificate, as in Form 25. No. 29. — Summons, under Section 2673, to m^ke return of Inventory. The Commonwealth of Virginia, To the Sergeant of the City of Norfolk, — Greeting: You are hereby commanded to summon to return in proper form, an inventory of all the personal and real estate which has come to 176 ' OOMMISSIONEES' FORMS his possession or knowledge, or whioli is under his management or subject to his authority in his fiduciary character, to the undersigned commis- sioner of accounts, at his oflSce in the said city, within thirty days from the date of service hereof. And this he shall in no wise omit. And have then there this summons. Witness, , commissioner of accounts of the Court of the City of Norfolk, at his said office, the day of 18 , dn the year of the commonwealth. Oommismner of Accounts. No. 30.— Beport under Sections 2673, 2678. BeMNQUENT FtDUCIAEIES. To the Honorable D. Tucker Brooke, Judge of the Corporation Court of the City of Norfolk: The following named fiduciaries, who failed within the time prescribed by law to make the return of inventory required by Sec. 2673, Code of Vir- ginia, 1887, were summoned by this commissioner to make such return, but it has not been made, either within thirty days after the date of the service of such summons returned herewith, or since. State names and fiduciary character. The following named fiduciaries, who failed within the time prescribed by law to make the ejthibit of the statement of moneys received and dis- bursed, with voiichers, as required by Sec . 2678, Code of Virginia, 1887, were summoned by this commissioner to make such exhibit, but it has not been made, either within thirty days after the date of the service of such sum- mons returned herewith, or since. State the names and fiduciary character. All of which is respectfully submitted. Commissioner of Accounts. No. 31. — Report to the court of the failure of a fiduciary to obey order of court. "To the Hon.," etc., as in Form 30. As directed by order of this court of the term, 18 , in the matter of (insert name and capacity of the fiduciary) a delinquent fiduciary, I report to the court that the said has failed to make the return of inventory, as required by the said order. Eespeotf ully submitted, . , 18 . Commissioner of accounts. COMMISSIONEEB FOEMS. 177 No. 32. — lAat of Fidueia/ries. List of Fedtjciaeies having accounts for settlement before tlie imderaigned commissioner of accounts of the Corporation Court of the city of Nor- folk, at the term, 18 Page. Kame of fiduciary. Title. Decedent or ward. ' Exhibited Posted. Commissioner of Accounts. 178 COMMISSIONBES' FOEM8. No. 33. — Executor's Account Stated. TM Estate ofC. D., deceased, In account with E. M., Executor. 1886. ' Feb. 20, To paid C. 0. clerk's fees, f2.50, and tax on probate of will, etc., and qualification, $15, $17 50 ' , " To paid (Jan. 19) W. Forrester, funeral ex- penses of testator, 5 00 " To paid (Jan. 19) A. Carman, funeral ex- penses of testator, 10 00 " By cash in testator's possession at his decease, $150 00 " " amount to testator's credit at his decease on deposit at the Bank, $5,000 00 3,672 50 8,672 50 25, To cash paid John Woodside, undertaker, funeral expenses of testator, 100 00 " To paid Kobert Stoneman, burial vault, 50 00 " " " B. Compound, apothecaries' account against testator, 10 00 " To paid Dr. Physic, medical account against testator, 50 00 27, By amount, principal, $2,000, Wm. Browne's note to testator and interest thereon to date, 2, 060 00 " To paid L. &C., attorneys' fee, motion for .probate, and qualifications, etc., 15 00 " To paid Charles Davis, principal, $1,000, and interest to date of testator's bond of Jan. 10, 1884, secured by deed on resi- dence purchased, 1,037 88 " To paid fee for drafting deed of release, 10 00 " ' recording release deed, 1 50 Mar. 1, " " City Taxes, 1885, assessed to testator, 250 00 " " " State Taxes, 1885, city property, etc., assessed to testator, 50 00 " To paid State Taxes, 1885, country property, assessed to testator, 10 00 July 2, By interest $5,000 U. S. 4 J per cent, bonds, _ 125 00 " To paid appraisers' fees, 3 00 1887. Jan. 2, By interest on U. S. bonds, _..'.. 125 00 " " " " deposit at Bank, 200 00 Feb. 20, By appraised value of U. S. bonds, $5,000, . 5,250 00 " By other personal effects, as per inventory, . 400 00 commissioners' forms. 179 Feb. 20, To allowance to Executor, '5 per cent, on il6,982.50, 849 12 " To estimated costs and fees about inventory andaccount 10 00 " To personal effects delivered to Mrs. C. D. , widow, as a specific legacy, 400 00 " To U. S. bond for $1,000, and $50 interest thereon, demonstrative legacy, paid to A. D., legatee, 1,050 00 " Residue distributed, as directed by the will, according to law of distributions in case of intestacy, as below stated, 13,053 50 $16,982 50 $16,982 50 Amount above for distribution, $13,053 50 Widow's third paid her, 4,351 16 Balance for descendants, 8, 702 34 Advancements by testator in his lifetime to his son WUliam, since died, leaving issue, a daughter, Mary,... 2,000 00 Fund for descendants next of kin, 10,702 34 One half being, _- _ 5,351 17 Share of granddaughter Mary, 5,351 17 Part thereof advanced by her grandfather in ■ his lifetime to his son William, her father, 2, 000 00 Cash paid this distributee, February 21, 1887, , 3,35117 $5,351 17 $5,351 17 Share of daughter Ann, __ -. 5,351 17 Paid her on account, January 1, 1887, 3,000 00 Paid her February 23, 1887, 2,351 17 $5,351 17 $5,351 17 180 COMMI88IONBE8 F0EM8. No. 33.^-OonUnued. Offidb of the Commissioner of Accoimts, of the Corporation Court of the City of Norfolk, A. D. 18 The above named E. M., executor of C. D., deceased, by authority con- ferred by an order of the said Court of A. D. 18 , exhibited before me, commissioner as aforesaid, on the day of A. D. 18 , a statement of all money which he received or became chargeable with or disbursed within the year beginning on the day of , A. D. 18 , together'with the vouchers for his disbursements, and I have stated and settled, and now report the foregoing account of the transactions of the said fiduciary, showing no balance due,' ( or a balance of dollars and cents, (| ) due the said fiduciary on the day of A. D. 18 .^ of which sum, i* the principal thereof, is to carry interest from that date.) The said account was not completed until ten days and more after it had been mentioned in a list of the fiduciaries whose accounts were before me for . settlement, posted at the front door of the court house of the said court, on the first day of the term of the said court, A. D. 18 . I fur- ther report that I have examined, and find that the said fiduciary has' given such bond as the law requires, and that it is in a penalty (of ) and with sureties ( ) suffi- cient. Respectfully submitted. Commissioner of Accounts. Fee for this account $ , , I, commissioner of accounts as aforesaid, do hereby make oath that I was occupied for the time of hours in settling and stating the foregoing accounts, and report, and I do so certify this day of , 18 ' . Commissioned' of Accounts. In the Corporation Court of the City of Norfolk, on the day of 18 , the report of commissioner of accounts of this court, upon the accounts of of which was filed on the day of 18 , in the clerk's of- fice of this court, having remained therein one mouth, and no exceptions having been filed thereto, was this day examined by the court, confirmed, and ordered to be recorded. Teste, 1 "V^en the account shows no balance, say so merely. 2 When the balance Is all principal, omit the next eight words, etc. * If there is any defect as to bond or surety, state it. commissioners' forms. 181 No. 34. — Administrator's Account. The Estate ofC. D., deceased, III further acdount with E. M., Administrator. 1887. Feb. 1, Balance due by tlie Administrator per last report : Principal, $2,000 00 Interest actually received by the Adminis- trator, 500 00 Interest charged on previous cash balance , in possession of administrator not in- vested, _- -.. 600 00 July 1, By interest on $5,000, U. S. bonds, 4^ per cent, --- --- 112 50 1888. * Jan. 1, By interest on $5,000, U. S. bonds, 4^ per cent, -- 112 5(i Feb. 1, To disbursements during the year (to be stated by items according to dates), 720 00 " To commissions allowed, 5 per cent, on $225, receipts, 11 25 By interest charged on last balance of princi- i pal not invested, 120 00 Balance of principal due to the estate, 1, 993 75 Balance of interest charged, ' ...720 00 2,713 75 $3,445 00 $3,445 00 The form of report is the same as in Form No. 33, using the word Admin- istrator in place of the word Executor. 1 Interest actually receive 1 is applied to diBbursements. 182 commissioners' forms. No. 35. — Guardian's Account. The Estate of Thomas Young, a ward, . In Account with , his Gnardian. 1887. May 1, Balance (cash) due by the Guardian in addi- tion to stocks and bonds, etc., as per last account and report filed, June 25, 1887, .- 100 00 " By unpaid balance, 30 per cent, of $2,000, deposit at Farmers' Bank, to separate ac- courit of guardian as such on June 1, 1886, when said bank went into liquidation, which deposit was originally in the name of James Young, the ward's deceased fa- ther, by whom the said fund was be- queathed to ward, with direction for it to remain at interest in said bank, 60000 July 1, By interest cdupons, $3,000, U. S. 5 per cent, bonds, 75 00 " By dividend stock, S. & E. K. R., five shares, f5,000, .'-- ' 175 00 " By $5,000 invested in South Side K. R bonds, now matured, ..i • 5,000 00 ♦ " By 6 months' interest thereon, 200 00 Oct. 1, By sales of crops from ward's farm in Norfolk County, per statement submitted to the commissioner, $2,000 00 Less payments to overseer, his wages and for labor, etc. , as per vouch- ers, : 1,100 00 , • 900 00 " By estimated profits from ward's farm in Princess Anne County, 500 00 " To paid ward's State taxes, 1887, 90 00 Nov. 1, By interest from Savings Bank on $5,000, ... 50 00 " To paid ward's' board and tuition at Univer- sity, 500 00 " To paid ward's bill for clothing, books, etc., _ 350 00 " To pocket money furnished ward, 200 00 " To allowance for comjjensation to guardian 5 per cent commissions, $1, 900, receipts, . 95 00 " Balance, 20 per cent, of deposit in Farmers' Bank yet unpaid, 400 00 " Balance (cash) due by G-uardiau on 1st March, 1887, when ward became of age, 5, 965 00 $7,600 00 $7,600 00 COMMISSIONEES' FORMS. 183 No. 35. — Gontinued. Nov. 1, Balance cash,... $5,965 00 " 10, Paid to Thomas Young, come of age, §5,965 00 The guardian has also assigned to the said Thomas Young, at his request, the claim against the Farmers' Bank in liquidation for $400 yet unpaid, and the U. S. 5 per cent, bonds, $3, 000 ; and the five shares of stock of the Sea- board & Eoanoke Eailroad, $5,000; and the lands in Norfolk and Princess Anne Counties, -with stock, implements, etc. Note. — In the above form no charge is made for interest on last balance, because too small and subject to current expenses. The income collected for July 1, also needed for current expenses. No charge of interest on $5,000 from August 1, because retained to deliver to ward, of age No- vember 1st. The form of a commissioner's report on a guardian's account is similar to that for the account of a personal representative. No. 33, except that the word guardian is used for the word executor or administrator, and that the word deceased, occurring after the name of the testator or intestate, in the account of a representative, does not follow or occur after the name of the ward in a guardian's accotint. No. 36. — Trustee's Account. The A. B. Trust In accovmt with S. T., trustee under a deed of trust bea/ring date the IQth day of July, 1885. 1885. Oct. 4, By proceeds of sale of the trust subject, a house and lot No. — Main Street, in the city of Norfolk, at public auction, to E. F., the highest bidder, for one-third cash, 2, 000 and four notes of $1,000 each, 4,000 payable with interest in 6, 12, 18, 24 months from this day of sale, secured by the purchaser's deed of trust and treated as cash, 6,000 00 5, To paid advertising sale. Landmark, $8 00 " " " " " Virginian, 8 00 ■ i " " " " Ledger, ... 5 00 21 00 Carried forward, $21 00 $6,000 00 184 Brought forward, §21 00 $6,000 00 Oct 4, To paid auctioneer, 60 00 " " trustee's commissions on $6,000 — being 5 per cent, on $300, and 2 per cent, on $5,700, 129 00 10, To paid arrears City Taxes, 1884, on trust subject, 120 00 " To paid City Taxes, 1885, $120 " " " State " " .' 24 $144 00 Less pro rata by agreement f rom E. F. , 38 00 106 00 " To paid for deed to purchaser, ... 10 00 " To paid K. S. the secured creditor, the notes, bearing interest from Oct. 4, received as cash, and $500 in money, for principal of A. B. 's note secured, 4,500 00 " To paid interest on $4,000 thereof to Oct. 5, . " To paid interest on $500 to Oct. 10, Retained for costs and fees, this report, To balance paid to A. B., as directed by deed, $6,000 00 $6,000 00 Where the sale is for part cash and part in deferred payments, to secure which title is retained by the trustee, the trust continues until the ooUeotion of deferred payments, and there is, in such case, usually a balance, gene- rally a small one, left in the trustee's hands at the end of the trust year. 140 00 18 00 5 00 891 00 No 36. — Oontinued. Office of the Commissioner of Accounts. Corporation Court of the City of Norfolk, A. D. 18 . The above named S. T. , trustee under a deed of trust, dated the day o^ A. D. 18 , between A. B. , of the first part, and the said trustee of the second part, and of record in the clerk's office of the said court, exhibited before me on the day , A. D. 18 , a statement of all money which he received or became chargeable with and disbursed within the year beginning on the day of , A. D. 18 , to- gether with the vouchers for his disbursements, and I have stated and set- tled, and now report the foregoing account of said transactions of the said fiduciary, showing no balance, (or a balance of dollars and cents, ($ ) due the said fiduciary on the day of A. D. 18 , of which sum, $ the prin- 185 oipal thereof, is to carry interest from tliat date.) The said account was not completed until after it had been mentioned in a list of fiduciaries, whose accounts were before me for settlement, posted at the front door of the court house of the said court on the first day of the term of the said court, A. X>. 18 , nor for more than ten days after it had been so men- tioned. Respectf^illy submitted. Fee for this account, $ Oorrmiissioner of Accounts^ No. 37. — Summoiu, under Section 2678, to exhibit a statement ofmonet/s re- ceived and disbursed, etc. The Commonwealth of Virginia, To the Sergeant of the City of Norfolk, — Greeting: You are hereby commanded to summon to exhibit be- fore the commissioner of accounts of the Corporation Court of the City of Norfolk, a statement of all money which he has received or become charge- able with, or has disbursed, within the year commencing 18 , together with the vouchers for such disbursements, at the office of the -said commissioner of accounts in the said city, within thirty days from the service hereof, and this he should in no wise omit. And have then there this summons. Witness, comissioner of accounts of the corporation court of the City of Norfolk, at his said office, the day of 18 , in the year of the commonwealth. Gommismmer of Accounts. No. 38. — Report under Section 2678, of Delinquent fiducia/ries. To the Hon. , etc., as in Form 30, omitting the portion referring only to inventories. Form 30, as given, will serve for reports of failure, both as to inventories and statements. No. 39. — Report to the court of the failwre by fiduciary to obey the order of court. ' To the Hon. , etc. , using Form 31 throughout, except the words "to make return of inventory," instead of which use the words, "to exhibit the statement, with vouchers. " 12 186 COMMISSIONEES' FORMS. No. ia.— Notice to the Fiduciary wider Section 2686, of inquiry, upon appli- cation, as to his bond, surety, capacity, conduct, etc. In the matter of \ A. B., Administrator (or Guardian) of V- Ex parte. C D. ) To the above named A . B. Take notice that upon the application of E. F., a person interested as creditor (or legatee or distributee, etc. ), (or who appears as next friend of G. H., an infant interested as, etc.), I shall, at my office in the city of Nor- folk, examine and inquire whether, as such Jiduciarj', you have given such bond as the law requires, and whether it is in a penalty and with sureties suf- ficient, (or whether security ought to be required of you as such fiduciary, or whether, by reason of your incapacity, or misconduct, or removal from the state, or any other cause), it is improper to permit the estate of the said C. D. to remain imder your control as such fiduciary. C G , Commissioner in Chancery, -^^ Court. No. 41. — Notice to be posted, under Section 2690, of time and place foj' receiving proof of debts or demands against a decedent or his estate. Notice to creditors and others concerned. Having for settlement the accounts of A. B. , personal representative of C. D. , deceased, at the request of the said representative (or any creditor, legatee, or distributee of the decedent), I have appointed the day of 18 , as the time, and my office, in the city of Norfolk (or other place fixed upon), as thevplace, for receiving proof of debts or de- mands against ihe said decedent or his estate. C C . Commissioner in Cliancery. No. 42. — Account of debts and deraands. A. B., deceased. In account with His Creditors. FiEST Class. To Dr. Physio, part of bill for services ren- dered during the last illness of the decedent, 50 00 — 50 00 Carried forward, 50 00 187 Brought Forward, 50 00 Second Class. To bond to U. S. Government, dated July 1, 1885, and due January 1, 1886, .. . $1,000 00 Interest to July 1, 1887, 90 00 1,090 00 Credit payment, July 1, 1887, 600 00 Balance as of July 1, 1887, 490 00 490 00 Thied Class. To State taxes 1887 assessed upon decedent be- fore his death, and due with interest from December 31, 1887, 25 00 To county levies Norfolk county, likewise as- sessed, and due with interest from December 31, 1887, 40 00 Fourth Class. To balance in hands of decedent at his decease due to estate of , deceased, by this decedent as administrator d. b. n. of said estate, of which $250 principal is to bear in- terest from the 15th August, 1887, 300 00 Fifth Class. To residue of medical biU of Dr. Physic against decedent, 100 00 To bond to John James, of March 10, 1884, due March 1, 1888, 600 00 To note to WUliam Mann, of Januaiy 1, 1887, due March 4, 1887, with interest from that date, 300 00 To open account due to Eobert Stone, July 2, 1887, : 150 00 To judgment in favor of Samuel Williams at January term 1887, Corporation Court, city of Norfolk, for $100, interest from July 1, 1886, and costs, 105 50 65 00 300 00 1,255 50 B2,160 50 Commissioner's office. County Court of Norfolk County, , 18 Having for settlement the accounts of personal representative of , deceased, and being requested so to do by , a creditor of the decedent, I appointed Friday, the 26th day of October, 1888, as the time, and my office in the said as the place, for receiving 188 COMMISSIONEES' FOKMS. « proof of debts or demands against the said decedent or his estate, and, be- fore the said time, posted a notice of such time and place at the front door of the Court house of the County Court of Norfolk County, on the first days of two successive terms, September and October, 1888, of the said Court. After receiving and considering such proof as was offered at the said time and place, I made out, and I now report the foregoing account of all such debts or demands as appear to me to be sufficiently proved. Respectfully submitted, Commissioner in Chancery. Fee for this report, etc. , f Charged to creditor. Annex affidavit, to be certified, as in Form No. 4, ante. No. 43. — Summons, under Section 3603, to judgment debtor, to answer upon oath, interrogatories filed with commissioner, hy the judgment creditor with a copy of the judgment. The Commonwealth of Virginia, To the Sergeant of the City of Norfolk, — Greeting : You are hereby required to summon (debtor, under a judgment obtained against , in the court of the said city, at the term, 18 , for $ with interest , and % costs, by plaintiff and judgment creditor), to file with the undersigned, commissioner in chan- cery, at his office, in the said city, within days, answers upon oath to the interrogatories hereto annexed, and this day filed with the commis- sioner by the saidgudgment creditor, together with a copy of the said judg- ment, to ascertain the estate upon which a fi£ri facias upon the judgment is a lien, and any real estate to which the said debtor is entitled, and have then there this summons ; and at the time of service of this summons you shall deliver to the person served therewith a copy of the interrogatories. Witness : , commissioner in chancery of the corporation court of the City of Norfolk, this day of 18 , in the year of the commonwealth. Oommisioner in Chancery. The time allowed for return should not exceed 60 days. To a copy of interrogatories, before delivery to the officer, should be ap- pended the following : A copy. TesU, Commissioner in Chancery. COMMISSIONBES' FOEMS. 189 » No. 44. — Notice or rule to sliow cause, under Section 3603, why attachment should not issue against judgment debtm; who after service of summons to answer interrogatories, Itas failed to do so, or has filed anmers deemed evasiw. The Common-wealth of Virginia, To the Sergeant of the City of Norfolk, — Greeting: You are hereby required to notify and summon (debtor, who has been served with a summons to answer interrogatories filed with the undersigned commissioner in chancery on the day of 18 , by judgment creditor, and has failed within the time prescribed therein to file proper answers upon oath to the said interrogato- ries, ) to show cause at my of&oe, on street, in the said city, on the day of 18 , at o'clock, why an at- tachment should not issue against the said debtor, to compel him to answer before the conmiissioner the interrogatories aforesaid or any others which he may deem pertinent ; and have then there this notice. Witness : , commissioner in chancery of the corporation court ■ of the City of Norfolk, this day of 18 , in the year of the commonwealth. Gommissioner in Gliancery. The time allowed for return should not exceed 60 days. If the debtor after summons has filed answers, but "answers deemed by the commissioner to be evasive, " the above notice is to be modified by omit- ting the words in parenthesis, beginning "failed within, etc.,'' and in place of such omitted words inserting the following, "filed answers deemed by the commission to be evasive." No. 45. — Attachment, under Section 3603, after notice to or rule upon judgment debtor, who !ias failed after being served with summons, to file proper answers to interrogatories. T^he Commonwealth of Virginia, Etc., as in Form 44, except that the word "attach" is to be used in place of the words "notify and summon," down to the end of the clause in brackets, then add the words ' ' and has been served with a notice or rule," and continue to the word "pertinent," after which add the following : ' ' so that you have his body before our said commissioner, at his said office, on the day of 18 , at o'clock, to answer upon those things which shall be then and there objected, and fur- ther to do, and receive what in that part shall be considered, and have then there this writ.'' "Witness," etc., as in Form 44. 190 COMMISSIONERS FOEMS. No. 46. — Mittimm. If when the debtor is brought in under the attachment, he refuses toan- swer before the commissioner the interrogatories, a writ of commitment may be endorsed upon the attachment as follows : The Sheriff (or Sergeant) of , is hereby commanded in his jail and custody safely to keep the within named , judgment debtor, untU he shall submit to make proper answers before the commissioner under the within attachment, or shall be discharged by due course of law. (date), 18 Gom/missioner in Chancery. When proper answers are made the commissioner may endorse the fact on the attachment. No. 47. — Gapim under Section 3606, against a judgment debtor failing, after summons, to answer interrogatories, and upon affidavit of cause for be- lieving that he is about to quit this State. The Commonwealth^ of Virginia, Etc. , as in Form 44, except that* the word ' ' take " is used in place of the words ' ' notify and summon, " down to the end of the paragraph in brackets, and add as follows : the said judgment creditor having shown to the satisfaction of the com- missioner that there is probable cause for beheving that the said debtor is about to quit this State unless he be f orth\s'ith apprehended, and you shall keep the said debtor safely until such answers to the interrogatories as the commissioner deems proper shall be filed, and such conveyance and delivery as he deenxs proper shall be made, or until a circuit or corporation court, or a judge of such court in vacation, shall direct the debtor's discharge. Witness, etc., as in Form 44. When imder the above process, proper answers have been filed and proper conveyance and delivery made, the commissioner should endorse the writ of capias as follows : ' ' Proper answers to the interrogatories having been filed, and proper con- veyance and delivery made, the sheriff (or sergeant) of is di- rected to discharge the within named , judgment debtor from custody, if detained for no other cause. " Commissioner in Chancery. 191 No. 48. — Gapias under Section 3604, against a judgment debtor refusing to make conveyance of real estate out of this State, and delivery of other pro- perty disclosed iy answers to interrogatories. The Commonwealth of Virginia, Etc. , as in Form 44, except that the word ' ' take " is to be used instead of the words "notify and summon," and on through the words "judg- ment creditor, " after which say : and has made answers upon oath to the said interrogatories, but has refused to convey to the proper officer real estate out of this State, to which the said debtor appears by such answers to be entitled, and to deliver the personal property so appearing to be in his possession or under his control, as or- dered by the commissioner, and to keep the said debtor safely until he shall make such conveyance and delivery, or shall be discharged by due course of law. Witness, etc., as in Form 44. No. 49.— Z)» After proper conveyance and delivery, the commissioner, unless the court which appointed him be sitting, may discharge the debtor from cus- tody under the above capias. The discharge may be endorsed on the capias as follows : Proper conveyance and delivery having been made under the within capias, the sheriff (or sergeant) of is directed to discharge the within named , judgment debtor, from custody, if detained for no other cause. , (Date) , 18 . Gommissioner in Ghancery. No. 50. — Report, under Sections 3603, 3604, 3606, o;f proceedings upon inter- rogatories to judgment debtor. To the Hon. , judge of the court of (name of judge and of court where the judgment is). The undersigned, a commissioner in chancery of the said court, reports to the court as follows : On the day of , 18 , , a judgment creditor, filed with this commissioner a copy of his judgment obtained in this court on the day of " , 18 , against for the sum of $ , with interest (as in the copy) and costs, $ , and he also filed therewith interrogatories to the said debtor, under Section 3603, Code of Virginia, 1887. On the day of , 18 , I issued a summons, di- recting the sheriff (or sergeant) of to summon the said 192 to file before me, at my office at within days, proper an- swers upon oath to the said interrogatories, a copy of which was issued with the summons for delivery at the time of service. The summons was re- turned on the day of , 18 , duly executed. The said , on the day of , 18 , within the time prescribed, filed answers upon oath to the interrogatories, showing real estate out of this State to which he was entitled, and showing personal estate in his -possession, or under his control, and he forthwith conveyed the said real estate to , the officer to whom was delivered a fieri facias under the said judgment, and he delivered the said personal estate by my order to , sheriff (or sergeant). The said interrogatories, summons and answers are returned herewith. All of which is respectfully submitted, Fee, etc. Commissioner in Ohajncery. No. 51. — Sumnmns, under Section 2995, for defendant in custody to ansioer The Commonwealth of Virginia, As in Form 43, to the parenthesis ( ), in which write, "defendant in custody at the suit of plaintiff, " and add as in the form ' ' to file with " etc. , to the word ' ' judgment creditor, ' instead of which write ' ' plaintiff, " after which add, "and have then there this summons," etc., as in the form. No. 52. — BeportyUnder Sections 2995, 2996, with interrogatories to defeiidant in t To the Hon. judge of the court of (name judge and court where suit is pending). On the day of 18 , plaintiff filed with the undersigned, a commissioner in chancery of the court of interrogatories to defendant in custody at the suit of the said plaintiff, now pending in your honorable court, under Section 2995, Code of Virginia, 1887. On the day of 18 , I issued (etc. , as in Form 50, down to the word ' ' showing. ") The said interrogatories, summons and answers are returned herewith. All of which is respectfully submitted, Fee, etc. Oommissioner of Chancery. COMMISSIONEES' FOEMS. 193 No. 53, — Inforination and complaint on oatli for obtaining sv/reiy of the peace, etc. Norfolk County, to-wit: Before me a commissioner in chancery of the court of the said county, came personally A. B. , of , , and on this day of 18 , complains on oath that there is good cause to fear that C. D., of intends to commit an offense against the person or property of the said A. B., (or of his wife or chUd,) by (here state the particular offense intended, ) and therefore prays that the said C. D. may be required to give security to keep the peace. A. B. Sworn to before me this day of 18 Gommiimner in OTinncery. No. 54. — ^Yarrant for Surety, etc. Norfolk County, to-wit: To the Sheriff or any Constable of the said county. Whereas, A. B., has made complaint on oath before me, , a commissioner in ohancerj' of the court of the said county, that (etc., as in Form 53, to end,) yon are hereby commanded, in the name of the commonwealth, forthwith to api^rehend the said CD., and to bring him before me or some other conservator of the peace of the said county, to answer the said complaint. Given under my hand this day of 18 Commissioner in Chancery. The warrant is to be returned, under Section 3958, and space should be left on the paper for subsequent entry of judgment, costs, and execution, as in the case of warrants for small claims. Sections 2947, 2948, 2949. The Constable to whom the warrant is given should be a constable of the magisterial district in which the arrest or apprehending is expected to be made. No 55. — Judgment of discharge and fur costs, to be written or endorsed, on warrant No. 54. Defendant appearing, complaint heard this day of 18 , and dismissed for want of good cause, and the defendant, C. D. , is discharged, with judgment in his favor against A. B., the complainant for his costs $ Commissioner in Chancery. 194 COMMISSIONEES' F0EM8. No. 56. — Judgment requiring recogniamee amd for costs to be written or en- dorsed on wa/rramt No. 54. Defendant appearing, complaint and evidence heard this day of , 18 , and it being considered that there is good cause therefor, the de- fendant, 0. D., against whom the complaint is, is required to enter into » recognizance payable to the Commonwealth of Virginia in the sum of doUars, with surety deemed sufficient, and with condition that the said C. D. shall keep the peace and be of good behaviour for months from this day, and judgment is given against the said C. D. for $ , costs of this prosecution, and the defendant, having entered into the recognizance required, with E. F., his surety thereto, is discharged from custody, (or, and the defendant having failed to give such recognizance, is committed to jaJL ) Constable's costs : Service of warrant, % .50 Summoning witnesses, Oommissioner in Ohaneery. Attendance, etc. , of witnesses, E. F., one day, Mileage, $ If the defendant appeal, omit the words above "is discharged from, " and use the following ; ' ' and on his motion an appeal is allowed him from this judgment to the county court of Norfolk county. And the warrant with the judgment endorsed, or written thereon, is to be delivered to the clerk of the court. No. 57. — Fieri facias, or executimifor costs, against the com/plainantinfamor of the person cmnplained of. To the sheriff, or any constable of Norfolk county. You are hereby commanded, in the name of the commonwealth, that of the goods and chattels of the complainant, A. B., you cause to be made the sum of dollars to satisfy the judgment above in favor of C. D., for f costs. Given under my hand this day of , 18 . Gommismner in 0/iancery. The above is to be written or endorsed on the warrant and judgment. No. 58.— Fieri facias against defendant for costs, unless an appeal is allowed. As above, in Form 57, but using the words "defendant, C. D.," instead of " compla,inant, A. B.," and omitting the words, "in favor of C. T>." commissioners' forms. 195 No. 59. — Form of recognizance for the peace and good hehamor. Norfolk county, to--wit: Be it remembered, that on this, the day of , 18 , C. D. and E. F. , came before me, a commissioner in chancery of the court of the said county, and a conservator of the peace, and acknowledged themselves to owe to the Commonwealth of Virginia, the sums following, to-wit: the said C. D. the sum of dollars, and the said E. F. the sum of dollars, to be respectively levied and made of their several goods, chattels, lands and tenements, if the said C. D. shall fail in performing- the condition underwritten. The condition of this recognizance is such that if the above bound C. D. shall keep the peace, and'be of good behavior for months {rwt to exceed one year') from this date, then this recognizance shall be void, other- vrise to remain in full force and virtue. Commissioner in Chancery. The recognizance is to be sent, under Section 4096, to the clerk of the county or corporation court of the county or corporation in which it is taken. Where, in case of appeal, the warrant and proceedings thereon should also be sent. No. 60. — Mittimus under Sections Z^\.5, 4095, on failure to gim the recogniz- ance required. Norfolk County, to-wit: To X. Y. , constable of the said county, and to the keeper of the jail of the said county. Whereas C. D. , now appearing before me, , a commissioner in chan- cery of the court of the said county, and a conservator of the peace, upon the complaint, on oath, of A. B., is required to give a recognizance pay- able to the Commonwealth of Virginia, (etc. , as in Form 56, to, and including the words "this day,") and has failed, and still fails, to give such recogniz- ance. These are, therefore, in the name of the Commonwealth of Virginia, to command you, the said constable, forthwith to convey the said C. D. to the jail of the said county, and there deliver him to the keeper thereof, to- gether with this precept;' and I do likewise command you, the said keeper, to receive the said C. D. into your custody in the said jail, and him there safely keep for the term of one year from the date hereof, or until such re- cognizance be given, unless he be sooner discharged by due course of law. Witness, commissioner in chancery of the court of Norfolk County, this day of , 18 , Commissioner. 196 COMMIBSIONEES' FOEMS. No. 61. — Form of Liberate, or wa/rrcmt for diteha/rge, under Section 4095, when recognizance is given after commitment to jail. Norfolk County, to-wit : To the keeper of tlie jail of the said county, "Whereas C. D., now in your custody, was, by a warrant issued by me on the day of , 18 , committed to jail for failure to give the recognizance for the peace and good behavior, required of him on the complaint of A. B. , and whereas the said C. D. has since, on this day of , 18 , given such recojgnizance in the sum of dollars, with E. F. his surety; therefore I command you, that, if the said 0. D. do remain in the said jail for the said cause, and for none other, then you forbear to detain him any longer, but that you de- liver him thence, and suffer him to go at large. Gommimoner in Chancery. No. 62. — Recognizance of Witnesses under Section 3916, on an appeal to the court. Norfolk County, to-wit : Be it remembered that, on this the day of , 18 , G. H. and L. M. came before me, , a commissioner in chan- cery of the court of the said county, and a conservator of the peace, and each of them, in his proper person, acknowledged himself sepa- rately and individually to be indebted to the Commonwealth of Virginia in the sum of dollars, to be levied and made of his goods, chattels, lands and tenements, if he shall make default in the performance of the condition underwritten. The condition of this recognizance is sufch as to the above bound G. H. , that if he, and as to the above bound L. M. , that if he, shall personally appear before the county court of the said county, on the iirst day of the next term thereof, to give evidence on behaK of the Commonwealth against CD., {if any, mention also thorn on hehnlf of the. appellant, ) on an appeal to the said court by the said 0. D., who has this day given a recognizance for the peace and good behavior required of him on the complaint on oath of A. B., from a judgment thereupon this day given by me against the said C. D., and shaU not depart thence without the leave of the said court, then this recognizance shall be' void, otherwise to remain in full force and virtue. ' Commissioner in Chancery. This recognizance is to be delivered to the clerk of the said court. INDEX. Accounts — Accounts of fiduciaries under order of reference, 27-29. Accounts of receivers under order of reference, 30. See Commissioner of Accounts, 72- 130. See Account of sales, 80-82. ' ' Personal representatives. " Executors. " Administrators. ' ' Guardians. ' ' Committees. " Curators. " Trustees. " Fiduciaries. Accounts of fiduciaries not to be completed for more than ten days after posting notice required, 90, 92. Accounts to be inspected with re- ference to beginning and end of fiduciary year, 91. Accounts of trustees to be inspected as to court or clerk's office where first recorded, 91. Accounts of disbursements to be supported by vouchers, 93. ' A<;oounts to embrace only the fidu- ciary year, 94. What credits to estate oi trust to be charged as receipts, etc., by the fiduciary, 94-100. What debits or disbursements to be allowed to the fiduciary, and their order, etc., 100-109. Accounts to be stated in form pre- scribed, 114-117. Accounts when completed to be filed, 117. Date of completing settlement to be entered on record of fiduciaries, 117. Accounts of debts and demands against decedent, 125, 126. Same to be returned within one year, 125. Accounts — Notice of same to be posted at two successive terms, 125. Commissioner's certificate of tiling claim to suspend running of sta- tute of limitations, 125. Commissioner of accounts to report every account stated, and also matter specially stated, 92-126. Commissioner to subscribe and re- turn with account his affidavit as to time occupied, 129. Accounts are final when, etc., 129. Account of SaleS — Account of sales by fiduciary as such, to be returned to commis- sioner of accounts, 80. Account of sales by "trustee under deed, not under decree, to be re- turned with an inventory, 80. Penalty against trustee failing to "make return, 80, 84. Account of sales to be inspected by commissioner, 80, 82. If in proper form to be approved, certified and delivered to clerk, 80, 82. When in proper form, 82. If not in proper form to be sent back, 83. Acknowledgments to Deeds — May be taken and certified by com- missioner in chancery, 132, 134. Adjoubnments — Of proceedings upon a reference, 18. In taking depositions, 18. Of ex parte proceedings by commis- sioner to ascertain debts and de- mauds against a decedent, 125. Administkatoes — Qualification by oath and bond, 73. 198 COMMISSIONEKS IN CHANCEET. Administeatoks — To make and return to commis- sioner of accounts inventory and account of sales, 73. To produce goods and chattels for appraisement, 79, 82. To be charged with loss by negli- gence, etc. , and also with impro- ■ per or unnecessary payments and costs, 87, 93. To exhibit to commissioner of ac- counts yearly statements of moneys received or chargeable to admin'r, and of his disburse- ments, with vouchers, 87. Of vouchers, 93. Of receipts or credits and Interest, 94-100. Of disbursements or debits, 100- 102, 104-114. Eeasonable expenses and commis- sions, 101, 102. Order for payment of debts, 105. Marshalling assets, 106. Liens, 106. Distribution, 110-113. Hotch-pot, 113. Accounts to be stated by commis- sioner in form, 114-117. Stated accounts to be filed with re- port, 117. Date of settling to be entered in record, 117. Accounts may' be stated under de- cree in suit, 118. Or by some other commissioner by order, 118. Bond of administrator, 122. Penalty of bond, 122. Surety, 122. Account of debts and demands against decedent, etc., 125. Pinal account, 129. Affidavits — Definition, 54. Before whom made, etc., 54. Annuities — Value ascertained, 61, 62. Appointment — Of commissioners in chancery, 11. Of commissioner of accounts, 74. Appeaisees— Appraisers to be appointed when jjersonal representative autho- rized, unless will direct otherwise, and the court approve, 78, 81, 82. Appeaisees — Where appraisers to be appointed, 78, 82. Fees of appraisers, 79. Appraisements to be returned to commissioner of accounts for in- spection, etc., 79. Date of return to be entered in re- cord, 79. "What to be appraised, 79, 81. What not to be appraised, 83. Form of appraisement, 79, 81, 82. Prima fitcie evidence of value, 83. Classification of values, 83. If appraisement be not in form, to be sent back, 83. ASCEETAINING EsTATE, EtC. — To ascertain estate on which a fie^-i facias is a lien, and real estate of debtor named therein, and to compel delivery and convej'ance, 136-142. Interrogatories to debtor and copy of judgment may be filed with commissioner in chancery, 137. Commissioner to issue summons with copy of inteiTOgatories, 137. How summons to be directed and served, and where, 137, 139. What commissioner to act, 139. Summons to be returned in sixty daj'S, 139. If summons not obeyed, rule or notice to be issued, etc , 137, 140. Upon continued default attachment may issue, 137, 140. Upon default after summons, and on affidavit that debtor is about to leave the State, cripiag may issue, 138, 140. After attachment or capias, answers to other pertinent interrogatories may be required, 140, 141. Objections of debtor to answering interrogatories to be entered in proceedings by commissioner, 141. Property disclosed to be conveyed or delivered, to wjiom, 141. Otherwise debtor to be committed, 142. After conveyance and delivery, commissioner may discharge debtor from his attachment if court be not sitting, and may discharge from his cnpiat al- though court be sitting, 142. INDEX. 199 ASOEKTAINING EsTATE, EtC — Commissioner to report his pro- ceedings, the interrogatories, an- swers and objections, and to re- turn to court where judgment is or justice resides, 138, 142. Bonds — Definition, 23. Official bonds, 23. Treasurer's bond, and penalty thereof, 24. To be examined by order of court at March and September terms, 24, 2.5. Upon reference, bonds of fiduci- aries to be reported upon, 27. Fiduciary bonds to be reported on by commissioner of accounts ex officio, or by special request, 121. Penalty of bond of executor, 122. " " administrator, 122. " ' " guardian, 123. curator, 123. " " committee, 123. Code Sections — 5, clause 6, 54 " 8, 33 " • 9, 33 " 10, 26 168, 11 173, 54 176, 12,54 177, 23 182, 12 814, 24 815, 24 855, 24 856, .25 1701, 123 1708, 26 1704, 27 2281, 62 2282, 63 2501, 131 2502, 133 2503, 133 2404, 134 2509, 134 2584, 123 2552, 111 21553, 111 2554, 112 2555, 112 2.557, 110 2558, 113 2561, ll.S Code Sections — 2601, 123 2602, • 123 2603, 103 2638, ^ 73 2640, -. 73 2641, 122 2642, 12.'i 2647, 78 2648, 98 2649, 99 2650, , 99 2651, 99 2652, 99 26.53, 100 2654, ..100 2660, 105 2661, 10.5' 2663, 100 2664, 100 2671, 74 2672, 74 2673, 79 2674,. 80 2676, 87 2677, 87 2678, 87 2679, 88 2680, U8 2681, .118 2682, 75 2683, 89 2684, 128,150 2685, 27,89 2686, 28,181 -2690, 125 2691, 125 2692, 125 2693, 89 2694, 90 2695, 90 2696, 92 2697, ..127 2698, 127 2817, . 66 2818, 66 2819, 66 2820, -. 66 2821, 67 2822, 67 2823, 68 2824, 68 282.5, 68 2826, 68 2995 142 2996, 143 3146, 135 3148, 135 200 00MMISSI0NEE8 IN CHANCEEY. Code Sections — 3207, 33,42 3208, 34 3215, 42 8220, 42 3224, *_. 43 3225, 43 8226, 44 3227, 44 3228, 45 3230, 45 3231, -- 46 3319, 11 3322, .19,46 3323, .-_ 17 3324, 20 3328, 35 3329,. - 35 3332, 35 3360, : 47 3351, 40 8352, 47 3353, 48 3354, 48 3355, 49 3356, .' 55 3358, 49 8359, £5 3362, 56 3863, 84,56 3366, 57 3369, 59 3370, 49 3371, 50 3414, 30 3415, 30 3499, 150 3500, 150 3501, 151 3502, 151 3503, 151 3504, 129, 152 8510, ...152 8514, 152 3515, 152 8518, 153 8519, 153 8520, : 154 3521, ., .154 3522, 155 3538, ..155 3539, 155 3549, 57 3550, 58 3557, ...136 8558, ..136 3608, 137 8604, 137 3605, 188 Code Sections — 3606, 138 3912, ..144 3913, 145 3914, 145 3915, .146 3916, 148 3919, 146 39^20, •. 146 4093, 146 4095, 148 4096, ..148 4U5, 123 4121, __ 27 COMMISSIONEES — Origin and classification, 9. Appointment, removal and oath of office, 11. To act under decree or order of re- ference, 13-31. A. In suits, 15-21. To give notice, 15-17. May adjourn, 17. To take proof and enquire, 18. May submit question of law to court, 19. Subject-matter of inquiry, 19. To report to court, 20, 21. To state his fees, and ito whom chargeable, etc., 21. To append affidavit of time occu- pied, 21, Exceptions to report, 21. Reference back, 21. B. In ex parte proceedings, 22-31. As to treasurer's bond, 23. On petition to seU estate of insane person, 26, 27. On petition to sell estate of convict, 27. Accounts and bonds of fiduciaries, 27, 28, 87-117, 121-123. Accounts and bonds of receivers, 30, 31. Commissioner may summon wit- nesses in matter before him, 47. May report refusal to obey sum- mons, 48. May summon party to answer in- terrogatories, or to produce wi'it- ing, etc., 49, 50. May administer and certify certain oaths of office not required to be taken in court, 54. May administer oath to witness be- fore him, 55. May take and certify depositions, 55. INDEX. 201 CoMMISSIONEES — Must note objections, 56. Must note attendance of witnesses summoned, enter allowance on oath, and give oertiiioate, 57. Duty in proceedings to perpetuate testimony, 58. Upon application, and after notice to enquire and report whether estate should remain in hands of fiduciary, 124. Commissioner of accounts to ap- pend affidavit of time employed in settling accounts, 128. Commissioner of circuit court may attend at drawing of jurors, etc., 13.5. Commissioner's proceedings to as- certain estate of judgment debtor subject to lien of fieri facias, etc. , 13(5-1+2. Commissioner's duty as conserva- tor of the peace, 144-149 See Fees, 150. Commissioner or Accounts — How appointed, 74. To have supervision of fiduciaries who qualify, 74, 75. To get M^ from the clerk, 74. To report on defective bonds, 74. To keep record of fiduciaries, etc. , 74, 77, 78 What the record to contain, 74. Clerk to furnish the book, 75. To inspect inventories, appraise- ments, etc., 76, 80, 81, 83. To inspect /account sale by trustees, 76, 80, 81, 83. To summon fiduciaries to return inventories, etc., 76, 78, 79,84-86. To receive annual statements of receipts and disbursements, with vouchers from fiduciaries, etc. , 76. To issue summons to fiduciaries who fail to exhibit annual state- ments, 76, 78, 117-121. To make entries of dates in record, 81. Memorandum, or book of summons, 85. To state, settle, and report on fidu- ciary accounts, 76, 87-117. To give receipts when required for vouchers, 89. Memorandum of statements, 91. To post at court-house door notice of accounts, 92. 13 OOMMISSIONEK OF AOCODNTS — What vouchers are required, 91, 93. To examine and report upon bonds of fiduciaries, 76, 121. To post notice and take proof of, and report debts, etc., due by decedent, 76, 125. To endorse date of filing such claims, 125. To report, with stated accounts, any matter specially stated or re- quired, etc., 76, 92, 126. To return vouchers desired with re- port, 76, 127. To return report when completed, 127. To make and append affidavit of time employed, and statement of fees charged, etc., 77, 129. To report, by order, upon treas- urer's bonds, 77, 130. Commissions — A reasonable compensation to be allowed to fiduciaries, 90 Commissions on receipts only, 101. As a rule 5 per cent., 101. To trustees, 102. When not allowed to trustees, §0, 84. When not to fiduciaries generally, 89, 121. Committee — Qualification by bond, 72. To return inventory, and account of sale, 73. To exhibit yearly statement of re- ceipts and disbursements, with vouchers, 87, 118. Liable for loss from neglect, etc. , and for improper payments, 87, 93. Vouchers, 93. Credits or receipts and interest, 94- 98. Debits or disbursements, 100, 102, 109. Eeasonable expenses allowed, 90, 101. Compensation allowed, 90, 101. Maintenance of insane or convict, 109. Payment over at end of trust, 110. Accounts stated by commissioner to be in form, 114-117. To be reported and filed with clerk, 117. 202 C0MMI8SI0NBES IN CHANCERY. Committee — To be noted in record of fiduciaries, 117. Accounts sometimes settled under decree, 118, 120. Sometimes bv other commissioners, 120. Surety in bond, 122. Form of bond, 122. Penalty of bond, 123. Final accounts, 129. CONSEEVATOK 01" THE PeAGE Every commissioner in chancery a conservator, Hi. May require security for good be- havior, 144. Cause for warrant on information or complaint, 145. Eecognizance for behavior for not more than one year, 145 For peace warrant, must be com- plaint on oath, in writing and signed, 145. Must appear proper, 145. For going armed, 14G. On affray or threat in presence of conservator, no complaint neces- sary, nor process, 146 Person to be discharged if no cause appear, 146. Person to give recognizance, or be committed if good cause appear, 147. Nature of recognizance, 147. To be returned to clerk's office, 148. Appeal, 148. Eecognizance for witness, 149. Judgment for costs, 147. Execution for costs, 147. Costs op Administration — First charge on decedent's estate, 100 Eeasonable expenses, 100. Commissions, 100. Ccbatobs — Qualification by bond, 72. To make return of inventory, etc., 73. To exhibit yearly statements to commissioner of accounts, 87. Loss by default, improper pay- ments and costs, 87, 93. Vouchers, 93. Credits to estate, receipts and in- terest, 94-98. CXJEATOES — Debits or disbursements, 100, 104, 109. Reasonable expehses and commis- sions, 90, 101. Maintenance, of minor, etc, , 109. Payment over, 110. Accounts stated by commissioner to be in form, 114-117. To be filed with clerk of court, 117. Date to be entered in record of fiduciaries, 117. Accounts may be settled under de- cree, etc., 118, 120. Or by special order, 120. Bond, penaltj' and security^ 122,123. Final accounts, 129. Dead Victuals — To be retained for familv of dece- dent, 83. Live stock may be killed, if neces- sary, 83. Debts — Of decedent, order for payment, 105. Account, on proof, and report, 125. Notice of time and place for proof, 125. Account to be filed in one year, 125. Commissioner to endorse on claim date of filing with him, 125. Endorsement to suspend running of statute, 125. Depositions — Before whom taken, 47, 54. Who may administer oath, 55. Oath to be administered, 55. Notice required, 56. Mode of examination, 56. To be certified and returned, 57. DiSTEIBUTION — Under statute of descents and dis- tributions, 109-113. DowBB — How to ascertain commuted present value when vested, 63. Estimated value of contingent right, 64. Dkawing Jdeoes — In presence of commissioner circuit court, 135. INDEX. 203 Dkawing Jueoks — Word dra-wn to be endorsed ou bal- lot, 136. Commissioner to return ballot to box after endorsement, 136. Estates — Of convicts. See Gommittee. Of decedents. See Administ/rator, Owrator, Executor. Of infants. See Curator, Chuar- dian. Of insane. See Committee. When estates not to be permitted to remain in hands of fiduciary, 124. _ EVIDENOE — Onus probandi, 3.t Things not requu'ing proof, 3.5. Estoppels, 36 Admissions, 36, 37. Rules relevapce, 37. substance, 38 burden of proof, 38. best evidence, 38 Competency of witnesses, 39. Production of witnesses and docu- ments, 39, 47-.51 Examination of witnesses, 39 Depositions, .5,')-.')8. Perpetuation of testimony, 59. When requested, commissioner of accounts to file evidence, 127. EXECUTOKS — Qualify by oath and bond, 72, 73. To make return of inventory, etc., 73. To produce the estate for appraise- ment, 78, 83. Liable for loss by neglect, impro- per payments, etc. , 87, 93. To exhibit yearly statements of moneys received, chargeable or expended, 87. Their vouchers, 93. Credits to estate, receipts, interest, 9+, 98. Principal and profits, 94. Debits or disbursements, 100, 102, 109. Beasonable expenses and commis- sions, 90, 101. Order for payment of debts, 105. Liens, 106. Marshalling assets, 106. Legatees and legacies, 107. EXECXJTOKS — Ademption of legacies, 108. Abatement of Jegacies, 108. Legacies payable when, interest on, 108. Distribution, 109. Hotch-pot, 113. Accounts stated to be in form, 114- 117. To be filed with clerk, 117. Date to be entered in record of fiduciaries, 117. May be settled in chancery suit, 118, 120. May. be settled by special commis- sioner, 120. Bond, 122. Surety, 122, 123. Penalty, ,122. Executor may have account of debts, etc., 125. Final accounts, 129. Fees — Of commissioner of accounts, 128, l.W. Of commissi6ners in ol^ancery, 161 Por report on reference, 21, 157. For report, etc , not on reference, 128, 150, 158. As notaries, I.tI, 156. To be stated at foot of report or . deposition, and to whom charged or by whom paid, 129, 151, 152, 158. Affidavit, as to time occupied, to be made, subscribed, and appended to report, etc., 150, 151, 157. To whom fees are to be charged, 152, 1.58. Fee book to be kept, 152, 158. No bill to be made until entered therein, 152. Nor until service be performed, 152. Fee-bill necessary before payment required, 152. Not to be for more than is allowed, 153, 159. Nor for constructive fees, 153, 159. How fees collected, 154, 160. Fees against non-residents, 155. Fees as to poor persons, 155. Table of fees, 1.56. Penalty for false fee-bills, 160. How secured as costs, 160. FiDTJDOIABIES — statute concerning, 72. 204 COMMIB8IONEE8 IN OHANCEBY. FiDXIOIABIES — Qualify by bond, and some by oath as -well, 72. , To collect estate and property, 73. To produce decedents for appraise- ment, 73. To make return of inventory, 78. And account of sales, 73. To make proper disposition of stock, 73. Fiduciaries who quality, 77, Appraisements, 78, 83. Inventories, 79-86. Account of sales, 80-82. To pay costs of proceedings when delinquent, 86. With what loss and payments chargeable, 87, 93. To exhibit yearly statements, 87. Allowance for expenses and com- pensation, 90, 101. Vouchers, 93. Interest, 94-98. See accounts, 87-117. Bonds of fiduciaries, 122. Final accounts, 129. FoNEEAL Expenses — To be in accordance with estate and condition, 100. The first charge on estate of dece- dent, 100, 104. FOBMS — No. 1. Notice to parties under de- cree of reference, 162 2. Notice to same by publication, 162. 3. Submission of point for instruc- tion by the court, 163. 4. Eeport under decree and refer- ence, 163. 5. Beport on treasurer's bond, 164. 6. Summons to receiver for state- ment, 165. 7. Keport on accounts of receiver, 16,5 8. Summons to witness, etc. , 166. 9. Report of failure of witness to attend, 166. 10. Eeport of failure to produce writing, etc., 167. 11. Eeport of. refusal after attend- ance to be sworn, or failure to give evidence, 167. 12. Eeport of refusal after attend- dance to produce writing, 167. Forms — 13. Summons to party to answer in- terrogatories, 168. 14. Summons to party to produce writing, 168. 15. Oath of office, 168. 16. Oath of attestation, 169. 17. Affidavit, 169. 18. Oath of witness in depositions, 169. 19. Depositions of witnesses, 169. 20. Entry of attendance of witness, 171. 21. Certificate of attendance of wit- ness, 171. 22. Eeport of proceedings, deposi- tions, etc., to perpetuate testi- mony, 171. 23. Eeport of failure, by fiduciary, to give bond, 172. 24. Eecord of fiduciaries, 173. 25. Inventory and appraisement, 174. 26. Inventory (without appraise- m3nt), 17.5. 27. Account of sales, 175. 28. Trustee's inventoi-y of property 'sold, 17.^1. 29. Summons for return of inven- tory, 175. 30.' Eeport of failure to return inven- toi-y, 176. 31. Eeport of failure to obey order of court to return inventory, 176. 32. List of fiduciary accounts before commissioner, 177. 33. Executor's account stated, and account of distribution, includ- ing hotch-pot, and commis- sioner's report, 1 78. 34. Administrator's account stated, 181. 35. Guardian's account stated, 182. 36. Trustee's account stated, and commissioner's report, 183. 37. Summons for statement of re- ceipts, etc , and disbursements, with vouchers, 185. 38. Eeport to court of fiduciary de- linquent as to statement, 185. 39. Eeport of failure of delinquent. fiduciary to obey order for statement, 185. 40. Notice to fiduciary of inquirj- as to his bond, surety, fitness, etc., 186. INDEX. 205 FOBMS — 41. Notice for time and place for proof of debts and demands, 186. 42. Account and report of debts and demands against decedent, 186, 43. Summons to judgment debtor on interrogatories, 188. 44. Notice or rule after summons to judgment debtor, 189. 4.5. Attachment after summons and notice or rule, 189. 49. Mittimus after sucb attachment,- 190. 47. Capias against debtor on affi- davit, 190. 48. Capias against debtor refusing to convey, etc , 191. 49. Discharge of attachment or ca- pias, 191. ■50. Report upon interrogatories, etc., 191. 51. Summons to defendant in cus- tody, 192. 52. Report on interrogatories to de- fendant, etc., 192. 53. Information and complaint for surety of the peace, etc. , 193. 54. Warrant for surety of the peao6, etc., 193. 55. Judgment- discharging, etc., 193. 56. Judgment requiring recogniz- ance, etc., 194. 57. Fieri facias for costs against complainant, 194. 58. Fieri fa£ias for costs against de- fendant, 194. 59. Recognizance to keep the peace, etc., 195. 60. Mittimus on failure to give re- cognizance, 195. 61. Warrant for discharge, 196. 62. Recognizance of witness, 196. Good Behaviok — Recognizance for, 144 See conservator of the peace, 144- ,148. Guardians — Qualification by bond, 72. To make return of inventory, etc. , 73. Liable for loss by neglect, and for improper payments, etc., 87, 93. To exhibit yearly statements, 87. Vouchers, 93. GUABDIANS — Credits to estate, receipts, interest, etc., 94-98. Principal and profits, 94, 103. Debts or disbursements, 100, 102, 103. Reasonable expenses and compen- sation, 90, 101. Maintenance, support and educa- tion, 103. Proceeds of sale of real estate, 104. Pinal payments, 104. Bond, surety, and'penalty, 122. HoTCH-PoT — Only in case of intestate' or partial intestacy, 113. Confined to descendants, 114. Confined to advancements, 114. Those who come in, 114. Interest, 114. Date when interest commences, 114. Insane — Petition to sell estate of insane, 26. Tc#be referred to commissioner, 27. Commissioner to report, 27. See Com/mittei. Intekest — Legal rate of interest, 66-69. Excessive interest, how recovered, 68. Partial payments, 70. How interest charged to fiduciaries, 95-98. Commissions to be deducted from receipts before estimating inter- est, 97. Interest on legacies, 109. Interest on advancements, 114. Iktekbogatokies^ May be filed with commissioner to adverse party, to any matter be- fore such commissioner, 49. Commissioner to summon party, etc., 49. To ascertain lien of .^erj/fljcioss, etc., see Ascertaining, etc., 136-142. May be filed without judgment against defendant in custody, 142. Interrogatories, answers, etc., and report to be returned to court when case is pending, 143. To whom estate is to be conveyed, etc , 143. 206 COMMISSIONEKS IN CHANCEEY. Inventoey — To be returned to commissioner of accounts by all fiduciaries who qualify, 79. What inventory is to contain, 79- If in form to be approved and de- livered to clerk, 80. Date to be entered in record, 80. Appraisement if signed by fiduciary, taken as inventory, 81. Form of inventory, 82, 8.S If not in form to be rejected, 83. Summons to fiduciary failing to make retm-n, 84. Beport to court of continued failure, 8e. Leoaoies and Legatees — See Executors. Kinds oflegacies, 107. Ademption of legacies, 108. Abatement of legacies, 108. When legacies are payable, 108 . Interest on legacies, 109. Mab8hai;Ling Assets — See Executors and Administrktors, and 106. , Notice — Upon reference, etc., 16, 17. Who entitled to notice, 32. Waiver of notice, 32. Beasonable notice, .B2. Notice generally, 32. To whom addressed and delivered, 33, 51. By whom served, 33, ."jI. Time to be excluded, 38. Serving notice, 33, 51. By delivery, or posting as equiva- lent, 33. - By publication, 34. As to corporations, etc. , 34, 44. To counsel for non-residents, for depositions, 34. Delivery to non-residents, 47. Notice by commissioner of accounts as to accounts before him, 89. To be posted at front door of court- house, 91. Notice to fiduciary of inquiry under section 2686, as to security, etc. , 121. And as to the control of estate, 124. Notice for proof of debts and demands against a decedent, 125. Notice — To be posted at two successive terms, 126. Oaths — Oath of office, 12. Oaths and affidavits, 54, 55. Oath of personal representative, 73. OEDEit FOK Payment or Debts of De- cecents — See Executors and Administrators, and 105. Pabtial Payments — How applied as to interest, 70. Peace — Conservator of the peace, 144-149. Recognizance for the peace, etc., 147. Pekpetuate — To perpetuate testimony, 58. Peoduction — Of writing or document, 48, 49, 50. Peebonal Bepeesentatives — Qualification bv oath and bond, 72, 73. To make return of inventory, ac- count of sales, 73. To produce estate for appraisement, 78, 83. Liable for loss from negligence, etc. , and for unnecessary and impro- per payments, 87, 93. To exhibit yearly statements, 87. Of their vouchers, 93. Credits to estate, receipts, interest, 94-98. Debits or disbursements, 100, 102, 109 Reasonable expenses and compen- sation, 90, 101. Order of payments, 105. Payment over, 1 10. Distribution, 110-113. Hotch-pot, 113. Accounts to be stated in prescribed form, 114-117. To be filed with clerk, 117. Date to be entered in record, 117. Accounts settled under decree, 118, 120. By other commissioner under order, 120. INDEX. 207 Peesonal Repkesentatives — Account of debts and demands, 125. Final accounts, 129. Pebsons Interested — Entitled to notice of proceeding, 16, 32. In fiduciary accounts ex pat'te, 91. Infants hy next friend, 92. Pebtinent — Matter deemed pertinent to be re- ported, if so decreed, 19. Or by commissioner of accounts, 92. Keoobd oe Fiduciakies — What to contain, 74. To be indexed, 74. Book to be furnished by clerk, 75. Examination for delinquents, 78. Arrangement of entries, 78. Beoognizance — For the peace and good behavior, 144-149. For witnesses on appeal, 149. Keoeivees — Bonds and accounts to be examined, etc., 30. Beeekence fob Bepobt — Subject-matter, 13. In suits, 15. Notice to be given, 15-17. Adjournments, 17. Mode of inquiry and examination, 18, 19. Beport of conclusions, 20, 21. Beoommitting report, 21, 22. Bef erence by ex parte order, 22. Ebmovai, — Of commissioners in chancery, 11. Of fiduciaries, 28. Bepobt — Under decree or order subject-mat- ter declared and restricted, 13, 19. To be filed in clerk's office when completed, 19. Becommitted at commissioner's costs, if because of his negligence, 20, 21. Papers not to be copied into report, 20. ■ Eepoet — Statement of fees, etc, , to be ap- pended, 21. Affidavit of time employed, 21. Under ex parte orders, 22. Ex officio reports, 88, 116, 121. Notice to be posted for accounts, 89. Not to be completed for more than ten days after notice posted, etc., 90 Other matter deemed pertinent, etc , 90, 92. To be filed when completed, 117. Upon bonds of fiduciaries, 121. Upon application or request, 124. On bond of fiduciary, 124 Personal notice to be given, 124. On fitness of fiduciary, 124. Personal notice to be given, 124. Of debts and demands against de- cedent, 12.5. Notice posted two successive terms, 12.5. Statement of fees, etc., to be ap- pended, 129. Affidavit of time occupied, 129. Summons — To receivers, 30. To witnesses, 47. To party to answer interrogatories, 49. To party to produce writing, etc. , 50. To fiduciary to return inventory, 86. Note of summons in record, 85. Memorandum of summons, 85. To fiduciary to exhibit statement, etc., 117. To judgment debtor or interroga- tories, 137, 139. Tbtistees — To return inventory and account of sales, 80. Penalty for failure, 80. When liable for loss, etc., 87, 93. To exhibit annual statement of ac- counts, 88j Vouchers, 93. Credits, or receipts and interest, 94. Debits or disbursements, 100. Beasonable expenses and compen- sation, 101. Tkeasueee's Bond — To be reported upon semi-annually, 24, 25. 208 OOMMISSIONBES IN CHANCERY. Vouchees — Eeoeipt for vouchers, 89. Commissioner's memorandum, 91. What sufficient voucher, 93. To be filed with report, if requested, 127. Receipt should be taken up, 128. WiTNESSBS — Competency of, 39. Witnesses — How compelled to attend, etc. , 39, 47. How examined, 18, 40. Depositions, 5.5, 57. Oath of witness, 55. Attendance, after summons, to be noted, 57. Allowance to witnesses, 57. Entry of same on oath, 57. 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