QlnrttpU IGam ^rlincl ICtbrary 
 
 iiar0l|all lEquttg Ql0Uerttatt 
 
 mn of 
 
 IE- 31. MaraljaU. I£.ffi. 1. 1B94 
 
CORNELL UNIVERSITY LIBRARY 
 
 3 1924 084 224 231 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924084224231 
 
PLEADING AND PRACTICE 
 
 IN THE 
 
 COURTS OF CHANCERY. 
 
 BY 
 
 R. T. BARTON, 
 
 OF THE WINCHESTER (VIEGINIA) BAK. 
 
 [SECOND EDITION.] 
 IN TWO VOLUMES. 
 
 VOL. I. 
 
 J. p. BELL COMPANY, 
 
 Lynchburg, Va. , 
 
 THE BELL BOOK AND STATIONERY COMPANY, 
 Richmond, Va. 
 
 1899. 
 
COPYKIGHTED, 1899. 
 
 K. T. BAETON. 
 
PREFACE TO THE SECOND EDITION. 
 
 The revised Codes of Virginia and West Virginia, published since 
 the first edition of this work, with the extensive changes made by 
 them and by subsequent acts of the Legislature in the statute law of 
 the States ; the numerous decisions of the highest courts, State and 
 Federal, in the last fifteen years; the various admirable treatises pub- 
 lished in that time, on the subjects discussed in these volumes; and 
 the possibilities otherwise offered for improvements upon the first edi- 
 tion, seem to concur in requiring a new edition, if the usefulness of 
 the book is to be preserved: 
 
 To these considerations, and to some pleasant personal pressure 
 brought to bear upon me, I have yielded in the publication of this 
 second edition. 
 
 The result now offered to the profession and the public has not been 
 produced by any sudden and concentrated effort. I have only, by 
 about a year's labor, put into publishing shape the notes and com- 
 ments on decided cases, statutes and text-books, written out by me 
 from time to time during the last fifteen years. Had the work not 
 been done in this way it could not have been done at all. 
 
 Although these new volumes contain at least twenty-five per cent, of 
 additional matter, and have required the examination and citation of 
 about twenty -five hundred new cases, yet the skill of the publishers in 
 lengthening the lines on the pages and rearranging the notes has given 
 to the book only about one hundred pages of added bulk. 
 
 The greatest addition on any single subject has been the pages 
 added in the discussion of the property rights of married women in 
 § 325, and as would be inferred from the many quotations and cita- 
 tions, for very much of this I am indebted to the admirable treatise 
 of Mr. M. P. Burks. 
 
 Much labor has been spent in an effort to elaborate and yet to sim- 
 plify the index, knowing well of how much service a good index is to 
 the busy man and what a vexation to him is one that is obscure and mis- 
 leading. I think, too, that the reader will find the citation of the sec- 
 tions at the tops of the pages a great help. 
 
 But very few of the pages of the te?t h^Y? escaped some sort of 
 
IV PEEFACE. 
 
 change, and many of them have been wholly rewritten, while large 
 additions have been made to the notes. 
 
 Thus in the use of these volumes it is hoped that labor and time 
 may be spared to those who have none of either to waste. 
 
 Winchester, Va., Aprit, 1899. 
 
 PROM THE PREFACE TO THE FIRST EDITION. 
 
 The necessity for making certain acknowledgments alone compels a 
 preface to these volumes; for such an address to the reader is usually 
 devoted to excuses and apologies, and having none to make, but for 
 the duty I owe to others I should say nothing here. 
 
 I do not mean that these pages will not need to be excused, but I 
 know that, however carefully a writer may seek to guard himself 
 against criticism, and whatever individuals may say either for or 
 against his work, in the long run what he has written will receive 
 from the profession and the public a fair judgment, and from their 
 conclusion there is no appeal. 
 
 To the second volume of Robinson's Practice (ed. 1835) I am 
 largely indebted in the preparation of this work. Its absence, except 
 in a few instances, from the authorities cited, is to be accounted for by 
 the fact that, with the author's permission, I have used whatever of 
 the material it contains that I thought would contribute to my own 
 purposes, and yet I have used it in such a way as not to make it dis- 
 tinguishable by marks of quotation. At the same time, the whole 
 arrangement of these volumes, the subjects discussed, and the manner 
 and style of their treatment, differ so much from' the admirable treatise 
 of Mr. Conway Eobinson, that I cannot justly make his book respon- 
 sible for mine, even to the extent of calling it my foundation. 
 
 I have freely used the valuable array of modern text-books that 
 now serve so much to lighten the labors of the profession, wherever I 
 have discussed the topics of which they specially treat; but to none of 
 them am I so much in debt as to the Institutes of Common and Statute 
 Law, by Professor John B. Minor, an obligation which is gratefully 
 acknowledged, not merely in respect to my labors of authorship, but 
 in the much more onerous duties of law practice. 
 
 Winchester, Va., July, 188t. 
 
CONTENTS OF VOLUME I. 
 
 CHAPTER I. 
 
 JUEISDICTION OP COURTS OF EQUITY. 
 Sections 1 to 19. 
 
 ? 1. Origin of Chancery Jurisdiction. — The theory of the English lavT. The judi- 
 cial authority of the king. Its relegation to the lord chancellor. The 
 common law encroached upon. The demands of the commons. Equity 
 confined to cases where there was no relief at law. The origin of some 
 maxims of equity. 
 
 ^ 2. Erroneous Views of Chancery Jurisdiction. — The abuse and uncertainty of the 
 early chancery proceedings. Thomas Selden's complaint. Some common 
 errors. ' 
 
 ? 3. Comparison of Law and Equity Jurisdiction. — Blackstone's definition. Sir 
 Joseph Jekyll's; Lord Eedesdale's; Judge Story's; Judge Tucker's. 
 
 2 4. Creation of Eights in Equity — Subrogation — Equity to a Settlement.— Jadges 
 Carr, Parker, Staples, and Anderson's definitions of the principles of sub- 
 rogation. What the surety may recover. How he may recover it. Suit 
 by endorser where the note is negotiable. Definition of a wife's equity to 
 a settlement. Judge Stanard's views. 
 
 § 5. Interference by Courts of Equity with Proceedings at Law. — No relief granted 
 where remedy at law is efiectual. 
 
 § 6. Principles upon which Courts of Equity Interfere. — Equity will not relieve 
 against a judgment because it is erroneous. When a chancellor should 
 grant relief. No relief where it may be had at law. There must have 
 been no laches. 
 
 ? 7. When Equity will Set Aside a Judgment at Law. — Where defendant deceived 
 by plaintiff's attorney. Where plaintiff made false representations. Where 
 there was no process. Where there had been an order to dismiss the suit. 
 Where there were suspicious circumstances. Where one of the parties 
 was sick. In certain cases against administrators. Gambling transactions. 
 Usurious judgments. Judgments by default by mistake. Where there 
 were off-sets and insolvency. Mistakes and miscalculations by the jury. 
 
 ? 8. When Equity will not Set Aside a Judgment at Law.— Offsets and insolvency. 
 Distributees and executors. Principal and surety, joint and several obliga- 
 tions. Social and individual debts. Failing to employ counsel. Where 
 
VI CONTENTS. 
 
 there has been a lack of diligence. Where the debt was scaled. Judgment 
 against a garnishee with notice of the assignment. The decided cases as to 
 relief in equity. 
 
 § 9. Relief lo one Party and not to Another. — Defendants given the advantage. 
 Relief seldom given to plaintiffs. But where there is a judgment for 
 OiF-sets. 
 
 § 10. Interference in Advance of Judgment. — Must appear that defence cannot be 
 made at law. Bill relating to equitable case will be dismissed. Forfeiture 
 relieved against. Case of equitable set-off. Titles obtained by fraud. 
 Complicated accounts. Discharge of surety by variance of contract. Cred- 
 itor's negligence or misfeasance. Circuity of action. Multiplicity of suits. 
 Cases for discovery. Pledge and loss of collaterals. Kelief to surety 
 against creditor. Bills quia timet. Accident, mistake, and fraud. Concur- 
 rent defences. Extension of legal remedies do not impair jurisdiction in 
 equity. Belief against executions. Where court of law has taken juris- 
 diction. Election between remedies. Statutes giving equitable defences at 
 law. Effect of the statute of Virginia. Precision required in equitable 
 plea. 
 
 I 11. New Trials of Cases at Law Avarded by Courts of Equity. — Object of the ap- 
 plication to equity. Where it is too late to apply at law. Where it is 
 against conscience that the judgment should stand. Diligence must have 
 been used. Defence prevented by fraud or accident. Where party was 
 ignorant of certairj facts. Negligence in having witnesses present. Appli- 
 cation for discovery. Where there has been an opportunity for a defence 
 at law. Where the excuse was age or sickness. Where there had been 
 suspicious management and connivance. Where there had been a submis- 
 sion to arbitrators. What evidence must be before the court on motion for 
 a new trial. Discovery of new evidence. Where the judgment was by 
 default. Where it was too late to apply under the statute. Where a receipt 
 or document was lost. Where the plaintiff or his attorney was absent. 
 Where illness or death has occurred. Where a letter miscarried. Inter- 
 vening floods. Where statement of witness was a surprise. Where witness 
 is absent or intoxicated. Where there was ignorance or mistake of law. 
 Ignorance of facts. Where witness was tampered with. Where witness 
 incompetent. Where evidence formerly admitted or excluded. 
 
 § 12. Interference with Foreign Judgments. — Judgment of court of record conclusive 
 until reversed. Full faith to be given in each State to records of other 
 States. Courts are not enjoined. Injunctions against suits in foreign 
 country. How such injunction enforced. Jurisdiction should seldom be 
 taken. 
 
 § 13. What Court should Grant the Injunction. — The provision of the statute. To 
 what court the orders are sent. Courts of equal jurisdiction do not gen- 
 erally enjoin suits in each other. Where the courts have both legal and 
 equitable jurisdiction. Courts of equity decree in personam. Injunctions 
 by United States courts. Between State and Federal courts. Cases in 
 bankruptcy. Where the jurisdiction is concurrent between the State and 
 Federal courts. 
 
CONTESTS. til 
 
 I 14. The Condition upon which Equity will Interfere. — The former rule as to requir- 
 ing a release of errors. The present rule. 
 
 5 15. The Effect of Interference by a Court of Equity. — Does not take away the lien 
 of a judgment. Sometimes destroys lien of execution. Where judgment 
 was by fraud. Where part of debt is good. Where there was a gambling 
 consideration. Where the transaction was usurious. What the court does 
 when it sets aside verdict and judgment. When equity retains jurisdiction. 
 
 J 16. Concun-ent Jurisdiction with Law Courts. — Extension of legal rights. No 
 efl'ect on equity. Where matter is partly legal and partly equitable. 
 Where there is fraud. Where there is a trust. Where there are nu- 
 merous suits. When election compelled. Where there was an execution. 
 Suretyships. Where equitable defence has been overruled at law. Where 
 defence is purely equitable. The statute of Virginia. Assignments. Where 
 action at law and suit in equity are pending at the same time. 
 
 § 17. What is such a Remedy at Law as will Prevent Jurisdiction in Equity, and 
 when the Objection to Jurisdiction should be Made. — Doubtful or partial remedy 
 does not prevent relief. No general rule. Where bank funds unlawfully 
 taxed. Warranty in deed. Patent cases. Suits against guardians. Bailiff 
 of infant's land held for rents. Where defendant prevents filing of decla- 
 ration. To wind up a building association. To quiet a title. Where a 
 joint obligee becomes an administrator. To set aside a tax sale. Mutual 
 accounts. Cases of fiduciaries. Discovery sought from an agent. Multi- 
 plicity of suits saved. To avoid estoppel at law. To set aside a fraudulent 
 deed before judgment. Cases of subrogation. Contribution. Lost note. 
 Continued trespasses. Specific legacies. Sheriffs and deputies. Sales of 
 equitable rights. Eestraining waste. Principal and surety. Unconscion- 
 able bargains. Inadequacy in quantity of land. Where the title or bounds 
 of land are in controversy. Joint devisees. To repeal patents. Suits by 
 trustees. Objection to jurisdiction made at earliest moment. When juris- 
 diction may be objected to. Matter of abatement. Matter in bar. How 
 objection to jurisdiction made. Practice in United States courts. When 
 objection to jurisdiction considered as waived. 
 
 § 18. A General Classifieation of the Subjects of Equity Jurisdiction. — Ten divisions 
 of the subject. The cardinal subjects of equity jurisdiction. 
 
 I 19. Maxims of Equity. — Equity follows the law. Where there is equal equity 
 the law must prevail. He who seeks equity must do equity. Equality is 
 equity. Equity looks upon that as done which ought to have been done. 
 He that hath committed iniquity shall not have equity. He should make 
 satisfaction who receives the benefit; He should have satisfaction who has 
 sustained the loss. Equity suffers not a right to be without a remedy. 
 Equity regards not the circumstances, but the substance of the act. 
 
VIII CONTENTS. 
 
 CHAPTEE II. 
 
 LIMITATION TO SUITS IN EQUITY. 
 Sections 20 to 34. 
 
 2 20. The Rules of Limitaiion at Law and in Equity. — The statute does not in terms 
 apply to equity. Courts of equity apply it by analogy. Sometimes strictly 
 foUow it. When they do and when they do not follow it. Cases of express 
 bar to suits in equity. 
 
 § 21. How lAmilations must he Pleaded in Equity. — Difference between authorities 
 on the subject. May be set up by plea or answer. May be made by 
 demurrer. Bill must state case, making an exception. Or else it must be 
 done by replication. May be excepted to a commissioner's report. Any 
 party interested may plead the statute. When made by creditor it only 
 enures to his benefit. May be set up although executor refuses to plead it. 
 
 ^ 22. The Mule of Premmption of Payment. — A definition of the rule. How the 
 presumption may be overcome. On what ground the presumption pro- 
 ceeds. Application to bonds and mortgages. To stale demands. Effect 
 of statute on the rule. Presumption is a rule of evidence. 
 
 I 23. The Effect of Laches. — Courts discourage negligence, and stale demands. A 
 review of the decided cases. Loss of papers. Death of witnesses. Diffi- 
 culty of doing justice. Complication of accounts. Excuses for laches. 
 Where there has been a breach of trust. Presumption of abandonment of 
 claim. The existence of civil war. 
 
 i 24. Wha-e there is Fraud. — Delay will not affect generally. Laches apply in 
 certain cases. Effect of discovery of the fraud. 
 
 § 25. Where there has been a Voluntary or Fraudulent Conveyance. — The statute 
 against such. When the statute commences to run. True interpretation of 
 the statute against such conveyances. Effect upon creditors and purchasers. 
 The formeJ and the later decisions. History of the statute. The presump- 
 tion of fraud. Qualification of the statute limiting the right to set aside 
 voluntary conveyances. Statute does not apply to cases of actual fraud. 
 
 ? 26. To the Bight to Enforce a Judgment Idem. — Cannot be enforced after right to 
 action or scire facias is barred. Effect of general creditor's bill on running 
 of statute. 
 
 i 27. Where there is a Trust. — Definition of a direct trust. What trusts come 
 within the statute. A vendor's lien. Wills. The statute as to the effect 
 of wills on the rules of limitation. Pawns or pledges. Fiduciary accounts. 
 Implied and resulting trusts. Unpaid subscriptions to stock companies. 
 Where trustee abandons his character as such. 
 
 g 28. Where there is a Mortgage or Deed of Trust. — The rules which govern in 
 cases of mortgages. Where a mortgage is or is not under seal. Where 
 there is an action at law on a deed of trust. Where debt barred by statute, 
 rule of presumption alone bars right to enforce a deed of trust. Present 
 statute. 
 
CONTENTS. IS 
 
 ? 29. Where there are Accounts and Partnership Transa/itions. — No limit to right to 
 compel an account, except laches, delay, injustice, etc. Partnership trans- 
 actions not within the statute as to dealings between merchants. Statute as 
 to partnership dealings. When it begins to run. 
 
 ? 30. To Surcharge and Falsify an Account. — A settled account prima facie correct. 
 Analogy of limitations to rule at law. Laches and lapse of time. No 
 period fixed as to the fiduciary. Eule as to his sureties. Application of 
 the rule to express trusts. 
 
 2 31. Suits for Specific Performance. — General rules as to laches prevail. Equity 
 often follows the statute. The statute in Virginia. 
 
 § 32. Appeals. — The statute. Appeals in the United States courts. When the 
 statute begins to run. Effect of filing petition. Where the bond is not ex- 
 ecuted. Delivery of the record. Where there is a bill of review to a final 
 decree. 
 
 ^ 33. Rehearing and Review. — No limit fixed to rehearing interlocutory decree. 
 Limit in court of appeals. Where a party has not been served with pro- 
 cess. Where there has been decree by default. Limit to review of final 
 decree. Motions and petitions. Bills of review and petitions for rehear- 
 ing. When one will be treated as if it was the other. Requirements of a 
 bill of review. 
 
 I 34. Time and Persons Excluded from the Statute. — Qualifications to the statute. 
 Pei-sons under a disability. Infancy. Coverture. Obstructing suits. Ex- 
 ceptions must be express. Where new disability occurs before the old one 
 ceases. How far persons under a disability bound by a decree. Distinction 
 between plaintiffs and defendants. Whether a day shall be given to show 
 cause. Time excluded from the statute. 
 
 CHAPTER III. , 
 
 PARTIES TO SUITS IN EQUITY. 
 Sections 35 to 78. 
 
 ? 35. The Oeneral Rule. — All persons in interest must be made parties. The rule 
 in the United States courts. The character of interest required. Different 
 views on the point. Effect of prayer for relief in determing interest. Im- 
 mediate and consequential interest. Persons against whom no relief is 
 prayed. 
 
 § 36. Plaintiffs and Defendants.— 'Easeniials for a plaintiff. Co-plaintiffs. Inter- 
 ests of parties must be made to appear. Who may and who may not be 
 joined together. Who are competent to sue. Who may only sue in the 
 name of another. Alien persons and corporations. 
 
X CONTENT'S. 
 
 2 37. Absent and Unknown Persons. — When absent persons need not be made 
 parties. Same as to unknown pei-sons. The rules in the United States 
 courts. The statute in Virginia. How an order of publication is executed. 
 When personal service may be made on non-residents. Validity of pro- 
 cess served in that way. No personal judgment to be rendered on order of 
 publication. Where process is served on agent or attorney of a foreign 
 insurance company. Effect of decrees on publication in collateral proceed- 
 ings. How fai- executions may be levied under them. What title passes 
 to property sold under such executions. Where conflict between the courts. 
 Foreign decree for alimony. Foreign divorces. Eifeot of appearance. 
 How it may be shown that there was no appearance. When non-resident 
 or unknown person may appear and set aside judgment. When a n6n- 
 resident is fraudulently induced to come within the jurisdiction. 
 
 2 38. Accounts. — All persons interested on either side necessary parties. .111 execu- 
 tors ; all partners, or their representatives, must be made parties. Where the 
 interests are different. Cases of accounts for prize money. Cases of collusion. 
 
 § 39. Admirtisiraiion of Estates. — All personal representatives must be parties. 
 Where one has died. Third persons having assets. Where one executor 
 has not qualified. Administrators of two estates. Executor de son tort. 
 Kepresentatives of former representatives. Administrators de bonis non. 
 Guardians and curators. Foreign executors. Payment of debts to them. 
 Suits by them as to personal property. Legatees and distributees. Prac- 
 tice in the United States courts. Specific legatees. Sureties on bonds of 
 fiduciaries. Where an administrator has not taken an active part. Heirs. 
 Sheriffs as administrators. Where a married woman is executrix. 
 
 1 40. After-born Persons. — Their interests affect the question of making them 
 
 parties. How far concluded by decree against tenant for life. 
 
 2 41. Amended and Supplemental Bilh. — Distinction between them. Both bills 
 
 used to make new parties. What a supplemental bill must state. Who 
 are necessary parties to. When the persons already parties to the suit 
 must be summoned to answer the amended bill. Who may file such a bill. 
 New parties made in Virginia without either supplemental or amended 
 bill. 
 
 I 42. Appeah. — Must be party to the suits and be aggrieved. When the court 
 determines the interests of persons not parties. Where an attorney in fact 
 was allowed to appeal. Non-resident persons as parties. Where interests ' 
 are joint or separate. Persons interested in proving wills, in appoint- 
 ment of personal representatives, in mills, roadways, ferries, etc. When 
 creditors may appeal. Purchasers under decrees. 
 
 I 43. Assignments. — General rule as to making assignors parties. When the 
 assignor should and when he should not be a party. When the assignment 
 is absolute. Where it is with or without recourse. Objection by the court 
 sua sponte. Assignees in trust for creditors. 
 
 I 44. Bankrupts and their Assignees. — General rule that bankrupt should not be a 
 party. Amendment of proceedings where person becomes bankrupt pen- 
 dente lite. When the bankrupt should be made a party. 
 
CONSENTS. it 
 
 § 45. Change of Parties by Death, Marriage, &e. — Wlien it does and when it does 
 not interfere with the progress of the suit. Joint tenants. Husband and 
 wife. Marriage of fenie sole. When interest survives. Death of one of 
 several creditors suing. Where one partner dies. The statute in Virginia. 
 Change of interests pending the suit. Where the parties are numerous. 
 Where a party's powers cease. How a cause is revived. 
 
 ^ 46. Charities. — Not to be done in name of the Attorney General. Tlie statute. 
 Persons interested are the proper parties. Corporations claiming interest. 
 
 ? 47. Cities, Towns, &e. — Eule where parties are too numerous to be named. 
 Some suing on behalf of themselves and others. Besidents, tax payers 
 and others. Preventing the imposition of illegal burdens, misappropria- 
 tion of funds, &c. Suits by such as plaintiffs, and against such as defend- 
 ants. Suits by inhabitants of a district of a county. 
 
 ? 48. Corporations. — Foreign corporations. Need not prove fact of incorporation. 
 Sue and are sued as individaals. Bills of discovery against corporations. 
 When its officers should be parties. Suits in name of the State. How a 
 corporation answers. Effect of its answer. Shareholders of joint stock 
 companies. Of voluntary associations. Creditors of corporations. When 
 stockholders may and when they may not be parties. 
 
 § 49. Creditors' Bills, &c. — Practice in United States courts. The general rule as 
 to parties. Other creditors may come in. Effect of proceedings on creditors 
 who do not come in. Creditors in different interests may sue together. 
 Garnishees. Trustees and cesluis que trust. Heirs and widows. 
 
 § 50. Discovery. — Who are proper parties. Several judgment creditors uniting. 
 Officers of a corporation. 
 
 I 51. Disabilities of Parties. — Next friends, guardians and committees. Minors and 
 feme averts. Persons of unsound mind. Guardians ad litem. How far 
 infants, &c., must be served with process. Practice in Federal and State 
 courts. Lunatic need not be a party. Bill to sell ward's land. Guardian 
 cannot sue former guardian. Form of suit and writ. 
 
 § 52. Foreclosure of a Trust or Mortgage. — Suits by some creditors in behalf of 
 themselves and others. Debts must be ascertained before sale. Where 
 there are liens prior to the trust. General trust not specifying demands. 
 Mortgagors. Other incumbrancers. Personal representatives of mort- 
 gagees. Where the legal title is outstanding. Where trustees alone need 
 be parties. Holders of negotiable paper. When mortgagor and mortgagee 
 are dead. Devisees. Assignors. Cestuis que trust. Creditors. 
 
 I 53. Fraudulent Transactions. — Where grantor in the deed is dead. Heirs, de- 
 visees and administrators, assignees, trustees, and cestuis que trust. Obligor 
 in a bond. Several creditors uniting. Where the trust is assailed as to 
 some creditors, and admitted to be fair as to others. 
 
 I 54. Heirs as Par/i«s.— Where debts are charged on land by the will. Where 
 land is assets. Heirs necessary parties to prove will. Matters relating to 
 dower, foreclosure, accounts, and specific performance. Where vendor or 
 vendee are dead. Purchasers. Marshalling assets. Feme covert. 
 
XII CONTENTS. 
 
 ? 55. Husband and Wife. — Suits by married women. The statute of Virginia. 
 Where interest of wife is hostile to that of her husband. Husband assert- 
 ing his marital rights. Where attorney of wife has collected alimony. 
 Where wife has a separate estate. When married woman is an executrix. 
 Wife's legacies. Where one was administrator of both husband and wife. 
 Suits for partition and dower. 
 
 ? 56. Injunctions. — Not granted to restain persons not parties. Where parties are 
 numerous. Inhabitants of a county, etc. Owners of vessels. The officer 
 who is executing process sought to be enjoined. As to patents. 
 
 ? 57. Interpleader. — Must be holding the fund but claiming no interest in it. Must 
 be in esse, and capable of interpleading. Tenants. The statute. 
 
 § 58. Joint Interests and Obligations. — The general rule. Community of interests. 
 Sureties. Joint-tenants. Tenants in common, etc. Partners. Joint- 
 trustees. Joint-judgments. 
 
 ? 59. New Parties. — May be ordered by court of appeals. May file an amended 
 bill. Continuance to new party. Amendments. 
 
 § 60. Numerous Parties. — When numerousness dispenses with necessity for parties. 
 Some suing on behalf of themselves and others. 
 
 ^ 61. Partitions. — Between whom partition may be made. Eights of creditors 
 and infants. Lessees. Where there ai-e liens. Heirs or devisees. How 
 the proceeding may be. Widows. Guardians ad litem. 
 
 I 62. Partnership Suits. — Where firm is composed of large number of persons. 
 The general rule requiries any partner to be a party. Where a partner 
 dies. When the firm has changed. When one or more partners goes into 
 bankruptcy. Assignees of firm and of individual members. 
 
 I 63. Perpetuation of Testimony. — Who may file it. Who must be defendants. In- 
 fants, insane persons, &c. 
 
 § 64. Petitions for Rehearing, Bills of Review, &c. — Who may file. Who may not 
 file. Parties to original suit. 
 
 § 65. Principal and Agent. — Generally agent should not be a party. Cases of 
 specific performance. Officers of a corporation. 
 
 ^ 66. Purchasers. — Of property sought to be subjected to debt of vendor. When 
 it is claimed by another. Bills for specific performance. Where heirs at 
 law sue to set aside a conveyance. Purchasers pending a suit. Assignees 
 in bankruptcy. Purchasers of negotiable securities. Representative of 
 vendor. Where purchaser has assigned his interest. Incumbrances. Mort- 
 gages. Joint-purchasers. Purchasers at judicial sales. At sales under 
 decrees of United States courts. 
 
 § 07. Redemption of Mortgage or Trust. — When assignor of mortgage is a necessary 
 party. When assignee should be made a party. Where the equity of re- 
 demption has been assigned. Where the mortgages belong to different per- 
 sons. When the mortgagor or mortgagee are dead. Where the debt has 
 been partly paid. When personal representatives are necessary parties. 
 
CONTENTS. XIII 
 
 § 68. Remedies Over. — Where the defendant will have recourse against some one 
 else. Where an heir at law sues the widow. Where a suit is against the 
 heir, and he will have recourse to the personal fund. In cases of sureties 
 and joint-obligors. 
 
 ? 69. Representative Parties. — Where many persons are represented by a few. 
 Where real estate is subject to entail. Persons claiming in remainder, re- 
 version, etc. Stockholders, creditors, legatees, etc. 
 
 ? 70. Resulting Tnists. — Beneficiaries. Oestuis que trust. Heirs, devisees and 
 grantees. 
 
 § 71. Specific Performance and Rescission of Contracts. — When an agent is a proper 
 party. Where the agreement is under seal. Strangers not proper parties. 
 Where the concurrence of other persons is necessary. Where other per- 
 sons have acquired rights in the subject. Where there was an assignment 
 prior to the suit. The vendee or his legal representative. Where the 
 vendee has died. When the heirs should be made parties. Suits by or 
 against infants, and persons under disabilities. 
 
 1 72. Sureties. — Where the suit is for contribution. Where one or more of the 
 
 sureties is insolvent. By surety against the creditor. Where one of the 
 sureties is dead. Where legatees sue. Sureties on several bonds of a 
 guardian. 
 
 2 73. Tenants. — Not generally necessary parties. Should be if their rights are to 
 
 be concluded. Cases where lessee.s of railroad were deemed proper parties. 
 2 74. Trusts and their Settlements. — All the trustees should be made parties. In 
 
 cases of foreclosure. Where one or all the trustees are dead. Where the 
 
 suit is for breach of trust by one of two trustees. Cestuis que trust necessary 
 
 parties. Exceptions to the rule. 
 J 75. Willsi — When heirs and devisees are necessary parties. Distributees and 
 
 personal representatives. Acceptance of legacy does not bar party from 
 
 disputing the validity of the will. 
 § 76. How Parlies may be Dispensed with. — How far lack of parties may be waived. 
 
 Where the bill states that the interests of certain persons have been satisfied. 
 
 ? 77. Effect of Omissions or Mi^oinder of Parties. — Whether mistake is fatal. May 
 be taken advantage of by demurrer. May be made by plea or answer. 
 Where there are unnecessary parties. Costs of amendments. Bill will be 
 permitted to be amended. When it may not be amended. Effect of omis- 
 sion on case in court of appeals. Where the parties are merely formal. 
 Where the appeal is from an interlocutory decree. Where there has been 
 a decree by default. 
 
 § 78. How and when Defect of Parties may be taken Advantage of. — Where the defect 
 is or is not apparent on the face of the bill. Where there is a misjoinder. 
 When the plea or answer discloses the defect. When the objection may be 
 made. How affected by lapse of time. Where one of two co-executors 
 dies. Amendments as to parties. Where the defendant stands neutral. 
 When the defect may be waived. 
 
XIV CONTENTS. 
 
 CHAPTER IV. 
 
 PEOCESS TO COMMENCE A SUIT AND PEOCEEDINGS AT RULES. 
 Sections 79 to 87. 
 
 ^ 79. Directions to the GUrh. — Form of the order. Where there are non-residents. 
 "When order of publication may be had. 
 
 1 80. The Writ, and how it Itsues. — Form of the writ. Must 'be dated and signed. 
 
 May be issued before bill is filed. Where the suit must be brought. On 
 insurance policies. To recover land, or subject it to a debt. Suit on 
 behalf of the Commonwealth. Where a judge is interested. Where it is 
 an injunction. Where none of the defendants reside in the county. 
 
 2 81. The Direction, and Service of the Writ. — To whom it may be directed. Where 
 
 a person comes into the jurisdiction of the court as a witness or party. 
 When a crier may serve the writ. Where a sheriff or sergeant is interested. 
 When the coroner or constable may act. When process and suit will be 
 abated for want of jurisdiction. When a plea in abatement is necessary. 
 When writ may be served on Sunday. How it is served. How served on 
 corporations. How on branch banks. On foreign corporations. On a 
 common carrier other than a corporation. 
 
 J 82. The Return of the Writ. — Time for the return. Service to be endorsed. 
 Name to be subscribed. Where service is on a corporation. Endorse- 
 ments how far prima facie evidence. Amendment of returns. When an 
 alias may issue. When a pluries summons may issue. 
 
 5 83. The Order of Publication. — In what cases it may be made. The affidavit 
 that is required. What it must contain. How it must be published. The 
 evidence of the execution of it. Posting the order. No further publica- 
 tion required, when. When person proceeded against by publication 
 merely may have case reheard. 
 
 g 84. Rules and Rule Days. — What are fixed by the statute. How long they con- 
 tinue. Where there is no clerk. How proceedings are kept at rules. 
 Control of court over proceedings at rules. When the bill must be filed. 
 Practice in the United States courts. When the bill will be taken for 
 confessed. Appearance by the defendant. Answer may be filed. When 
 defendant may have case set for hearing. Where there are several de- 
 fendants. Record should show the pleadings. Where one excepts to 
 commissioner's report, but does not answer. Where one of several de- 
 fendants answers a bill charging fraud. Eule to file the bill. Where three 
 months elapse without the bill being filed. What is a waiver of this 
 defect. 
 
 §85. Confession of Decree. — May be without a bill. Control of court over. How 
 clerk must enter the order. May be by attorney in fact. May be in vaca- 
 tion. What considered vacation. 
 
CONTENTS. 
 
 \ 86. Picas in Abatement— When and how objection to jurisdiction must be taken. 
 To what matters of abatement the statute applies. To what it does not 
 apply. Where the bill shows want of jurisdiction in equity. Practice in 
 United States courts. How defective writ taken advantage of. Where the 
 cause of action did not arise in the county. Where there is no resident 
 defendant. Where there is some personal disability. Defence of another 
 suit pending. Whether it is a plea in bar or in abatement. Plea puis 
 darrein continuance. Verification of plea in abatement. Plea must give a 
 better writ. Must give the true jurisdiction, residence of parties, &c. Ex- 
 ceptions to rule requiring plea to give a better writ. 
 
 I 87. Amendments at Rules.— 'When it may be done of right. By amended or 
 supplemental bill. When leave will be given to amend. How far amend- 
 ment may be made. How before and after answer and demurrer. 
 
 CHAPTER V. 
 
 BILLS IN CHANCERY. 
 SSCTIONS 88 TO 109. 
 
 § 88. The Matter of the Bill. — ^What is a bill. Statement of case must be brief, 
 clear, and certain. Must specify action and relief sought to be had. Must 
 show right of plaintiffs and liability of defendants. When it will be de- 
 murrable. Must not contain scandalous or impertinent matter. How such 
 matter may be expunged. How it may be objected to. Must not be mul- 
 tifarious. What is multifariousness. When several may unite in one suit. 
 How multifariousness must be taken advantage of. Objections by the court 
 sua sponte. Undue splitting up of causes of action. 
 
 § 89. The Frame of the Bill. — The address. The names of the complainants. The 
 statement of the case. The injury complained of. The pretensions of the 
 defendants. The appeal to equitable relief. The names of the defendants 
 and the demand that they be compelled to answer. The prayer for relief. 
 The prayer for process. The form! of commencing bills in the United 
 States courts. When citizenship must be stated. Description of parties 
 and characters in which they sue. When complainant is infant. Lunatics. 
 Married women. Minute details of case need not be stated. How far case 
 must be stated on knowledge. Statement in the alternative. Allegations 
 andf proofs must correspond. Whether confederacy must be denied. 
 Where the bill makes interrogatories. Who are considered to be defend- 
 ants. When no persons are designated as defendants. What relief may 
 be given under the general prayer. Injunction must be specially prayed for. 
 
 ; 90. Original and Other Bills. — Classification of the various kinds of bills. Defi- 
 nition of an original bill. 
 
§ 91. Creditor^ Bills. — Few suing for many. Bills for subjecting assets. Lien 
 creditor's bill. Marshalling assets. Effect upon creditors who do not come 
 in. What will be treated as a creditor's bill. Where creditor, on being 
 notified, neglects to audit his claim. Whether a single creditor at large 
 may sue. Correction of bills in this respect. Who has control of the suit. 
 When there may be decree for payment without an order of account. 
 When the debt of the plaintiff is satisfied. When the plaintiff dies. When 
 value of rents and profits must be proved. When personal estate need not 
 be first exhausted. What suit may be maintained before judgment at law. 
 Administration of assets. When fees of counsel not to be paid out of tlie 
 common fund. Statute on the subject of counsel's fees. Where there are 
 several suits by different creditors. 
 
 § 92. Bills Marshalling Assets. — Principle of marshalling assets. Frame of the 
 bill. 
 
 ^ 93. Bills to Surcharge and Falsify Accounts. — Settled accounts prima fade evi- 
 dence. Who may file the bill. When it must be dismissed without an 
 order of account. What the bill must contain. How errors are indicated. 
 Where there are errors on the face. Burden on the complainant. Where 
 vouchers are lost. 
 
 1 94. Bills of Interpleader. — Who may file it. What he must ask. Affidavit re- 
 
 quired. When the bill must be filed. Eequirements of the bill. 
 
 § 95. Bill Praying a Certiorari. — When the court is one of limited jurisdiction. 
 Character of the bill. Use made of this proceeding. To compel produc- 
 tion of record. 
 
 J 96. Bills quia timet. — What they are intended for. How the aid is given. 
 What relief given under them. Discretion of the court. Where the debt 
 is not yet due. Surety and principal. 
 
 § 97. Bills of Peace. — Multiplicity of suits. Instances in which jurisdiction is 
 taken. When injunction is made perpetual. 
 
 2 98. Bills to Perpetuate Evidence. — The statute in Virginia. What the bill must 
 
 state. Must be for but one purpose. 
 
 § 99. Bills for Partition. — Who may file. Who may not. What court has juris- 
 diction. When land may be laid off. Shares allotted together. Whdh 
 there must be a sale. Where the title is doubtful. Third persons not 
 affected. Lien and other creditors. Provision made for creditors. When 
 there is a dower interest. How partition is made. Effect of report of 
 commissioners. When mutual deeds are executed. Parties to the suit. 
 Infants and their interests. How inequalities are remedied. When there 
 have been advancements to one. Adjustment of rents. 
 
 * 
 
 g 100. Bills of Bevivor. — Effect on suits of death, etc. What does and what does 
 
 not abate a cause. When revival is and when it is not necessary. In whose 
 name revival should be. What the bill must state. Bill of revivor and 
 supplement. Revival by scire facias. In the court of appeals. Plaintiffs 
 and defendants. Where there are numerous parties. What the bill puts 
 in issue. 
 
CONTENTS. XVII 
 
 § 101. Q-oss-Eills. — Who may file. Where it is for discovery. Where the bill 
 lies. What the bill must state. What decree may be rendered on the 
 matter of the cross-bill. In what court it must be filed. When it should 
 not be filed. At what time it may be filed. Efiect of answer and deposi- 
 tions. Court may direct cross-bill to be filed. When answer or petition 
 may be treated as such. Parties to cross-bills. Process under. Leave of 
 court required to file it. Issue, how disposed of. What a decision con- 
 cludes. 
 
 I 102. Bills for Discovery. — What is such a bill. What it must state. What it 
 must and what it must not pray. When affidavit required. When the 
 bill will be dismissed. When the bill will and when it will not be enter- 
 tained. When the discovery is sought in aid of another suit. When too 
 late to file it. 
 
 § 103. Bills for Divorce. — What court has jurisdiction. Marriages invalid per se. 
 What may be avoided. Grounds for divorce from bed and board. Condo- 
 nation. Desertion. Cruelty defined. Condonation of cruelty. EiFect of 
 divorce a mensa el toro. Eevocation of decree. Gounds for divorce a vin- 
 culo matrimonii. Force and fraud. When parties may marry again. 
 Allowance for support and counsel's fees pending the suit. When alimony 
 will be decreed. When it may be decreed without a divorce. How the 
 amount of alimony is determined. Temporary and permanent alimony. 
 How secured to be paid. When the amount cannot be agreed. Time 
 during which alimony is to be paid. Efiect of divorce on right to dower. 
 How custody of children decreed. Who entitled to it. When terms may 
 be imposed upon the right to custody. How bill for divorce is filed by 
 the wife. Where the suit must be brought. What decree may be ren- 
 dered in vacation. The pleadings in the cause. Effect of the answer. 
 Bill cannot be taken for confessed. 
 
 I 104. Bills for Lost Instruments. — When one may sue in equity. Ordinary 
 remedy at law. Suits for lost negotiable notes. Where the note has been 
 destroyed. Divided bank notes. Affidavit and offer of indemnity. 
 
 I 105. Amended Bills.— When and under what circumstances a bill may be 
 amended. Who may amend. To what extent amendments may be made. 
 Matter of discretion of the court. Excuses for amendment. Instances in 
 which amendments have been allowed and refused. Must not make a new 
 case. May obtain different relief from that originally asked. When too 
 late to amend. When the application has been long delayedf When a 
 replication has been filed to an answer. Where the amendment is merely 
 formal. Amendment authorizes new defence. Liniitations where new 
 parties are made by amendment. 
 
 ? 106. Supplemental Bills.— What their object is. How they differ from amended 
 bills. What process is necessary. When a bill will be dismissed. When 
 leave must be obtained to file it. 
 
 § 107. Bill of Review.— lies only to final decree. Is an original proceeding. 
 How differs from a petition for rehearing. Time within which it may be 
 filed. Proper parties. When it will lie. When leave must be had to file 
 B 
 
XVIII CONTENTS. 
 
 it. What is the effect of refusal to grant leave. Will not lie against a 
 consent decree. What is error on the face. For what after discovered 
 evidence it lies. What affidavit required. When the evidence must have 
 been discovered. Beview after appeal and affirmation. When bill of 
 review will be treated as a petition for rehearing, and vice versa. 
 
 § 108. Petition for Rehearing. — How far matter of discretion of the court. Dis- 
 covery of new testimony. Who may file the petition. 
 
 i 109. Petitions Qenerally. — What may and what may not be set up by petitions. 
 Creditors in suits to set aside fraudulent conveyances. Where there should 
 be a petition, and where an original bill. Where there was a sale under 
 decree and a judgment pending the suits. What the petition must state. 
 Its form. Petition by next friend. When leave of court required. An- 
 swer to petitions. What process required. 
 
 CHAPTEE VI. 
 
 DEMUEKEE AND PLEAS. 
 Sections 110 to 122. 
 
 110. Frame and Nature of a Demurrer. — May demur and plead at the same time. 
 The object of a demurrer. Meaning of a demurrer. What will be re- 
 garded as admitted by a demurrer. Matter of law not admitted. Of 
 judicial cognizance of facts. Meaning of written instruments. Irrelevant 
 matters. Defects apparent on the bill. Demurrer may be to the whole or 
 part of a bill. Where several defendants demur. Form of demurrer. 
 
 111. The Issue Upon a Demurrer. — Provisions of the statute. Demurrer does 
 not lie to plea or answer in chancery. When joinder is not recited in the 
 decree. When the record does not show what disposition was made of the 
 demurrer. 
 
 112. Orounds of Demurrer. — To the jurisdiction. For want of parties. For 
 want of interest. For incapacity to sue. Because the suit is brought too 
 late. Because of multifariousness. For lack of equity. Because a dis- 
 covery may subject the defendant to pains and penalties. Because in con- 
 science the defendant's right is equal to the plaintiff's. Because the 
 discovery sought is immaterial to the relief prayed. Because the discovery 
 would be a breach of professional confidence. Because the amended or 
 supplemental bill contradicts the original bill and makes a new case. 
 
 113. The Effect of a Demurrer. — When some demurrers are good, and some bad. 
 Where demurrer is overruled. Second demurrer not allowed. But when 
 there is a supplemental bill. When the demurrer is allowed to the whole 
 bill. Whether dismissal of bill on demurrer is a bar to another suit. 
 
CONTENTS. XIX 
 
 ? 114. The Frame and Nature of Pleas. — Must direct to a single point. Must not 
 be multifarious. Must follow the bill. May be separate pleas of various 
 defences. How it must conclude. Negative pleas. When it must be sup- 
 ported by an answer. Where it is to part of a bill. Pleas in the United 
 States courts. General formula for pleas. 
 
 ? 115. Filing Pleas. — When plea in abatement may be received. Pleas at rules or 
 in term. When pleas may be amended. 
 
 § 116. The Issue Upon Pleas. — When it may be set down to be argued. Provis- 
 ions of the statute. When issue will be regarded as if it had been formally 
 , made up. Where the plea is proved. When the benefit of the plea is 
 saved to the hearing. When it may stand for an answer. Where the stat- 
 ute of limitations is pleaded. When the plea is supported by the bill. 
 Where the plea is not proved. 
 
 ? 117. Pleas to the Jurisdiction. — Objection should be made at the earliest moment. 
 Plea in abatement. Application of the statute. Objection to the particu- 
 lar court. Conflict of jurisdiction between the State and Federal courts. 
 When the objection appears ou the face of the bill. The defence of another 
 suit pending. Whether it is a plea in bar or in abatement. What the plea 
 must state. Where there are two suits in equity. Where one is at law. 
 Where there are several creditors' bills. Second suit must be for same 
 matter as first. 
 
 § 118. Pleas to the Person. — Who cannot sue. Alien enemies. Persons under dis- 
 abilities. Identity of the person. Bankruptcy of a party. 
 
 § 119. Pleas in Bar. — Plea of an account stated. Of an award. Of a release. 
 Of a will or conveyance. Efiect of a receipt in full. Stated account is a 
 prima facie bar. Objections to an award must be stated in the bill. Where 
 there is fraud or partiality. Award conclusive of matters determined by 
 it. Covenant to refer is not a good plea in bar. Consideration of release 
 must be stated in plea. When it must be under seal. Where there is fraud 
 or surprise. What a plea of a will or conveyance must state. Must be a 
 purchaser without notice. Purchase must be complete. What a denial of 
 notice concludes. Defence may be made by plea or answer. 
 
 § 120. The Plea of Limitations. — Necessary averments of the plea. What form 
 of words required. Defence may be by plea or answer. 
 
 § 121. Plea of a Former Judgment or Decree. — How and when it may be plead. 
 What the former judgment must have embraced. Must have been on the 
 merits. Where former suit was dismissed for defects in the pleadings, etc. 
 Must be proved that decision was on the merits. Identity of subject-matter. 
 Classification of pleas in bar. 
 
 § 122. Pleas to Oross-Bills and Bills of JReview. — Form of the plea. When defence 
 must be by plea, and when by demurrer, Plea of extrinsic matter. Where 
 the objection is lapse of time. 
 
ex CONTENTS. 
 
 CHAPTER YII. 
 
 ANSWERS IN CHANCEEY. 
 Sections 123 to 130. 
 
 ! 123. When an Answer may be Filed.— Prorision of the statute. May show cause 
 why answer should not be made. Answer may be filed where a demurrer 
 is overruled. May be filed before final decree. Cause not to be delayed. 
 Instance of excuse for not filing. How late in a cause an answer may be 
 filed. 
 
 i 124. Frame and Nature of an Answer. — The caption. What it shows. Charac- 
 ters in which a party sues. Where there are several executors or partners. 
 Where two or more persons have identical interests. Answer of husband 
 and wife. When the wife is sued with her husband. Next friend. Guard- 
 ian ad litem. Foreigners. The demurrer and reservation of exceptions to 
 the bill. Answer may contain both. Answer must be distinct and categori- 
 cal. Where a discovery is called for. When one would be subjected to 
 pains and penalties if he answers. Scandalous and impertinent matter. 
 Defence of purchaser for value without notice. Kules in United States 
 courts. What the answer should controvert, admit, or deny. Must not 
 argue. Must be positive. When answer may be on information and belief. 
 Not bound to answer immaterial charges. As to conversations. Where 
 documents are called for. General traverse or denial of the bill. The 
 conclusion of an answer. Signature. When it may be dispensed with. 
 Where a corporation answeri. The jurat. When the answer is joint. 
 Affirmations. Form of affidavit. By whom administered. When in 
 United States courts. Various defences allowed in an answer. Where an 
 account is demanded. Not obliged to answer to scandalous matter. Must 
 not contain scandalous or impertinent matter. As to expunging such 
 matter. 
 
 125. Exceptions io an Answer. — For insufficiency. For scandal, etc. For cob- 
 fusion of statement. Should be in writing. What they must pray. When 
 they may be filed. When amended. Where there are two answers. 
 Where a joint answer. Must be signed and filed. Form. How excep- 
 tions heard and determined. What done if overruled or sustained. Rules 
 in the United States courts. How costs adjudged. 
 
 126. The General Effect of an Answer. — Where evidence for defendant. How 
 effect overcome. The reason of the rule. The rule and statute in West 
 Virginia. Kule not to apply to allegations not responsive to the bill. 
 What considered responsive. Where case is heard on bill and answer. 
 Allegations of matters of belief. Where there is no replication. Incon- 
 sistent admissions. Allegations of bill whi^h are not responded to. Ad- 
 missions in an amswer. Whole answer must be read. EfiFect of answer to 
 bill of discovery. Statements on belief. Admissions of matter not in issue. 
 Effect of proof that defendant is unworthy of credit. 
 
CONTENTS. XXI 
 
 ? 127. The Effect of an Answer in Special Instances. — The answer of an infant. Of 
 a lunatic. Of a married woman. Of a corporation. To a bill for a divorce. 
 Where there is an issue out of chancery. In a proceeding devisavit vel non. 
 Where there are usurious or gambling transactions. Between co-defendants. 
 On motions for receivers. To a bill for an injunction. To a bill of dis- 
 covery. Who appointed guardian ad litem. How appointment made. 
 How he answers. Infant not bound by it. Nor insane person. Married 
 woman bound by her separate answer. Cannot charge her husband. Effect 
 of husband's answer upon wife's property. Where the bill is to set aside a 
 voluntary conveyance. Answer of corporation, unless sworn to, only makes 
 up the issue. The statute as to answers to bills of divorce. Defendant has 
 benefit of his answer. When an issue out of chancery will be directed. 
 Answer has same effect as in other suits in chancery. Must be ordered to 
 be read in the issue. When answer not evidence in issue devisavit vel non. 
 When answer evidence to bill against usurious dealings. The provisions 
 of the statute, and the decided cases. Where the proceeding is against a 
 gaming transaction. General rule as to answers between co-defendants. 
 When may be read in favor and when against. Exceptions to the rules. 
 To bill asking appointment of a receiver. When may be filed to an injunc- 
 tion bill. Where motion is to dissolve on bill and answer. When de- 
 fendant says he does not know. Answers by executors or administrators. 
 When motion to dissolve is continued. To what extent a defendant is 
 bound to answer a bill of discovery. 
 
 ? 128. The Effect of Striking Out an Answer. — Where defendant directed to answer 
 more fully. The rule in the United States courts. When the lower court 
 strikes out an answer, how an appeal lies. When appeal lies to an order 
 striking out an answer. 
 
 J 129. The Issue upon an Answer. — How issue made up under the statute. Where 
 there is no replication. Special replications. Effect of a replication. How 
 it is put in. Rule in the United States courts. Limit to Hght to file it. 
 When case has been heard as if there was a replication. What may be 
 stated in a replication. 
 
 g 130. Amendment of an Answer. — Eight to amend granted cautiously. For what 
 reasons it is granted. Where amendment is to matter of law or of fact. 
 Discretion of the court. Practice in making amendments. 
 
 CHAPTER VIII. 
 
 INJUNCTIONS. 
 Sections 131 to 143. 
 
 131. The Application for an Injunction.— To whom made. What may be done 
 if refused. What papers sent to judge of court of appeals. May be made 
 in term or vacation. What notice required. Rule in United States courts. 
 
XXlI CONTENTS. 
 
 How application made. When by motion. Affidavit required. Wliat 
 judge or court has jurisdiction. To whom the order is directed. When 
 the proceeding is a pure injunction bill. To what extent appearance and 
 consent can give jurisdiction. 
 
 § 132. The Injunction Order and Proceedings. — Where the order is written and 
 entered. Endorsed on the summons. Certificate that bond has been given. 
 How cause proceeds. Rules as to dismissing injunction bill on a dissolu- 
 tion thereof. Where the cause has been heard on bill and answer. Where 
 the injunction has been granted in vacation. 
 
 1 133. The Injunction BiU.^-'Fra.me and structure. Allegations must be positive. 
 
 Must state facts. Where fraud is alleged. When must expressly pray 
 injunction. 
 
 2 134. The Parties to an Injunction Bill. — Person enjoined must be a party. Pur- 
 
 chasers at judicial sales. Officer executing a writ. Where judgment at 
 law is enjoined. Where there is a violation of easements, etc. Where 
 inhabitants of a town or city are interested. Injunction against a nuisance. 
 Breach of trust by members-of a corporate body. Officers of corporations. 
 The President of the United States. Heads of departments. 
 
 ? 135. The Orounds for an Injunction. — To prevent irreparable wrong. To re. 
 strain waste. To prevent a trespass. To prevent a nuisance. Against the 
 infringement of patents and copyrights. To enjoin sales under executions. 
 To enjoin sales under trusts. In cases of municipal corporations. In cases 
 of other corporations. To restrain the use of a franchise. In cases of 
 sureties. In cases of partners. The general ground is for lack of a remedy 
 at law. What constitutes waste. Differently considered at law and in 
 equity. Destruction of timber or shade trees. Waste against inheritance. 
 Malicious waste by tenant. Bemoving crops. Altering a dwelling house. 
 Against mortgagors or insolvent debtors in possession. Tenants in com- 
 mon. Executors. Against purchasers to preserve subject of lien. In 
 favor of child in ventre sa mere. Adverse claims of title. Pending a suit 
 at law. Eemoving ore from banks. Destroying or defacing a graveyard. 
 Distinction between waste and trespass. As to personal and real estate. 
 Circumstances of trespass that will be enjoined. Circumstances under 
 which injunction will not be granted. Distinction between a trespass and 
 a nuisance. Public and private nuisances. Who may proceed against. 
 When an individual may entertain a suit. What are and what are not 
 nuisances such as will be enjoined. What are private and what are public 
 nuisances. What bill must aver and what must be proved. Jurisdiction 
 of injunctions as to patent rights. United States courts. Distinction be- 
 tween State and Federal jurisdiction. What jurisdiction rests on. When 
 an execution may be quashed. Jurisdiction of equity to enjoin. The 
 effect of the statute. Where the property levied on is exempt. Where 
 there is a conflict between execution creditors. Where the pretium affectionis 
 attaches. Where there is fraud or mistake. Effect of setting aside a 
 judgment. Where there should be credits on an execution. Where a 
 trustee is improperly executing his duty. Where he is bankrupt. Where 
 
CONTEKTS. XXIII 
 
 he drinks or is poor. Ground of jurisdiction as to trusts. How sales under 
 trusts should be made. For what irregularities an injunction will lie. 
 Where and when the sale must take place. As to the terms. Proceeding 
 where sale is enjoined. The advertisement. As to clouds on the title, as- 
 certainment of debts, etc. Sacrifice of property. Attendance of bidders, 
 etc. Set-off. Liquidated and unliquidated claims. Defects in title or 
 quantity of land conveyed. Injunctions against collection or assessment of 
 taxes. Subscriptions to railroads, etc. Taking private property without 
 compensation. Unlawful legislation by municipal bodies. Illegal contracts. 
 Prosecution of works of internal improvement. Provisions of the statute. 
 Altering grades of streets. Injuring property on streets. Caution exer- 
 cised in granting injunctions. Unlawful use of a franchise. Injuries to 
 established rights. Defence by surety on ground that time has been given 
 to principal debtor. What is and what is not a good defence. Defence on 
 this ground at law and in equity. Proceeding by a surety against a co- 
 surety. Causes that justify injunctions in partnership cases. When the 
 injunction will not be granted. Whether a dissolution must be prayed. 
 
 5 136. The Effect of an Injunction. — Puts an end to lieu of execution, when. Pre- 
 vents running of statute of limitations. What the order must state. Vio- 
 lation of injunction order. 
 
 ? 137. The Eddence on an Injunction Proceeding. — The answer to the bill. How 
 depositions are taken and read. When affidavits may be read. 
 
 § 138. The Injunction Bond. — Provision of the statute. Terms of the bond. 
 Where executed. Effect of not executing. When not required. Orders 
 of the judge as to the bond. 
 
 ? 139. Dissolution of an Injunction. — Notice required. Eule in United States 
 courts. How order directed. When bill will be dismissed. When motion 
 may be heard. When before answer filed. Effect*f delay or laches. 
 When motion may be continued. What done when motion refused. Open- 
 ing and conclusion of the argument. Perpetuation of an injunction. Pro- 
 ceeding on injunction to a judgment at law. Where there has been an 
 assignment. Where there is an appeal. 
 
 § 140. Reinstatement of an Injunction. — After affirmation of order of dissolution by 
 an appellate court. Character of the motion. Power of judges of court 
 of appeals. Court always open to motion. When complainant estopped 
 from making it. 
 
 § 141. Appeals frmn Injunction Orders. — Provision of the statute. How order di- 
 rected- and entered in such cases. Who may appeal. Appeals from order 
 dissolving an interlocutory injunction. Eegularity of proceedings. Extent 
 of right of appeal. Bond in cases of appeals. Dismissal of appeal. Effect 
 of appeal. 
 
 I 142. Costs in Injunction Proceedings. — Discretion of the court. When party by 
 his motion asks for too much. Where injunction is perpetuated. Where 
 judgment at law perpetually enjoined as to a part. Where purchaser en- 
 joins collection of his purchase money. 
 
XXIV CONTENTS. 
 
 ? 143. Damages in Injunction Proceedings. — How fixed by statute. How computed 
 by the court. Discretion of the court in awarding them. How jury im- 
 panelled to fix damages. How they are calculated. Whgre there are two 
 defendants and injunction dissolved as to one. From what time damages 
 computed. Who liable for them. How afiected by bond. Speculative 
 damages not allowed. Damages from delay in opening street. Loss by 
 depreciation of land. When incumbrance and defect of title removed 
 pending the auit. 
 
 , CHAPTER IX. 
 
 EECEIVEES. 
 
 Sections 144 to 157. 
 
 144. Principles Ooveming Appointment of Seeeivers. — Object of appointment of 
 receivers. Preservation of the property. Similarity to injunction. Pru- 
 dence required in granting the motion. Matter of judicial discretion. When 
 injury will result from appointment. When he will and when he will not 
 be appointed. When not appointed even by consent. Immediate and ulte- 
 rior objects of appointment. Does not determine auy right. On whose 
 motion appointment may be made. Fraud or insolvency aa grounds. 
 Danger to property. Conflicting incumbrances. W-hen debtor has ab- 
 sconded. When executor is insane. When insolvent or out of jurisdic- 
 tion. When the appointment will be refused. 
 
 i 145. Proceedings for the Appointment of a Receiver. — Must be pending suit. Ex- 
 ceptions. M%^ be appointed in vacation. Bill for the purpose. Who must 
 be parties to the proceeding. When notice required. When dispensed 
 with. Upon whom it must be served. When appointed before answer. 
 When before decree. Amendment of bill. Efiect of amendment. What 
 objections to bill not considered on motion to appoint a receiver. Form of 
 the order idaking the appointment. When rents are to be collected. Power 
 of the receiver to collect. When appeal lies from order appointing, re- 
 fusing to appoint, or discharging a receiver. 
 
 146. Evidence upon the Application for a Receiver. — Effect of an answer to the 
 bill. When affidavits may be filed. Sufficient for applicant to make a 
 prima facie cases. What must be proved. 
 
 147. The Effect of the Appointment of a Receiver. — Does not change title or create 
 lien. Like granting an injunction. Difference between the remedies. 
 Effect on statute of limitations. 
 
 148. Rights, Duties and Liabilities of a Receiver. — Only authority is from the 
 courts. Must sue or defend only by leave of court. Suits in foreign juris- 
 diction. Cannot be a garnishee. His property cannot be attached. Effect 
 of appearance in a cause. When he may be sued without leave. How 
 
CONTENTS. XX V 
 
 permission obtained to sue him. Must pay out only as ordered. Cannot 
 pass finally on validity of a claim. To what extent he may exercise dis- 
 cretion. May apply to court for instructions. May employ counsel. May 
 receive and receipt for debts. When he may distrain for rents. Must take 
 vouchers. Eesponsible for losses. Order of appointment cannot be im- 
 peached collaterally. "What defences are available to him. Answerable 
 for damages on railroads. Extent of authority to make sales. Eights of 
 purchaser. Eeceiver cannot purchase at his own sale. Liability of joint 
 receivers for default of each other. Bond required of him. His compen- 
 sation. When extra pay allowed. 
 
 ? 149. Who should be Appointed Receivers. — Court must select. Should be an in- 
 different person. Should not be related to the defendant. In cases of part- 
 nerships. Officers of railroads appointed, where. When trustees may not 
 be appointed. When solicitor in a cause may be appointed. Persons 
 especially objectionable. A corporation may be a receiver. Appointment 
 may be in term or vacation. Who may influence the selection. 
 
 i 150. Receivers of Corporations. — Provisions of the statute. What is the usual 
 rule. Who should be party to the suit. What should be averred in bill 
 and affidavit. 
 
 ? 151. Receivers of Railroads. — General grounds which justify the appointment. 
 Courts reluctant to make the appointment. On whose motion appointment 
 may be made. Effect of appointment on liens. When debts to employees 
 and for supplies paid before lien debts. Modern doctrine on the subject. 
 When receiver may raise funds and charge the same on receipts. 
 
 § 152. Receivers of Partnerships. — General rule requires a dissolution. Exceptions. 
 When partners cannot agree. Where danger of misappropriation of assets. 
 At whose instance the appointment may be made. What insolvency justiiies 
 the appointment. Proof of insolvency. Effect of levy of execution. Ap- 
 propriation of partnership assets to joint debts. Claims of individual 
 creditors. Effect of liens on private and on social property. Assignments 
 by partners. Usual grounds for appointment of receivers. When will not 
 be appointed. What relief granted instead. When the existence of the 
 partnership is denied. When the partnership is not complete. Where 
 one ef the partners is dead or bankrupt. 
 
 I 153, Receivers for Renting Land. — Where decree for sale is delayed. Where 
 litigation is complicated, and property will probably be insufficient to pay 
 the debts. May be appointed in term or in vacation. What rents receiver 
 entitled to. How tenant must attorn. When and for what receiver may 
 distrain. How he may rent the land. What repairs he may make. 
 Eeceiver where there is a fraudulent assignment. Effect of affidavits and 
 answer. Where assets are being wasted or diverted. Appointment, matter 
 of discretion in the courts. 
 
 I 154. Receivers' of Estates of Infants, Lunatics, etc. — In suit against a guardian. 
 Where there is litigation pending the probate of a will, or the administra- 
 tion of an estate. Where there is no committee for a lunatic. Where an 
 infant marries. 
 
XXVl CONtENtrS. 
 
 § 155. Receivers where there are Trusts. — Where a trustee has misbehaved, is in- 
 solvent, etc. Where she is a married woman. Slight grounds will not 
 prevail. Mere property insufficient. Where there is a second mortgage. 
 Where there are conflicting claims to a trust fund. 
 
 ? 156. Beceivers where there are Injunctions. — ^When injunction may be granted, 
 and receiver refused. Both may be granted. 
 
 § 157. The Discharge of a Receiver. — Upon whose application he may be dis- 
 charged. Is a matter of discretion with the court. Where every matter 
 has been settled. Where there may be an appeal. Who may appeal. 
 Where the receiver is in bad health. Where the litigation has terminated. 
 Where he is a bankrupt. As to the settlement of his account. 
 
 CHAPTER X. 
 
 REMEDIES PEOVIDED BY STATUTE. 
 Sections 158 to 172. 
 
 158. Relief Against Fraudulent and Void Conveyances. — Proceeding against, before 
 judgment. Eule before the statute. Who may file the bill. Creditors 
 may come in by petition. The order of liens. Several conveyances may 
 be impeached in the same suit. Consolidation of two suits. Costs in such 
 cases. What conveyances may be avoided. Fraudulently taken home- 
 steads. What deed good against the grantor. Homestead exemption 
 where deed set aside. Dower rights in same case. What decree of sale 
 may be entered. Where land partly in two States. Tor what property 
 and rents a voluntray donee is liable. 
 
 ' 159. Voluntary Conveyances. — Where valuable, amount of consideration not re- 
 garded. Marriage a valuable consideration. Circumstances and extent to 
 which it is, and to which it is not a valuable consideration. Where no 
 specific marriage is contemplated. Contracts of third persons relating to 
 marriage. To whom the consideration extends. Post and ante-nuptual 
 contracts. Conveyance of dower interest by wife. Whether uniting in 
 deed of trust to convey contingent dower right is a valuable consideration. 
 Settlement on wife must not be excessive. What is and what is not exces- 
 sive. Eelinquishment of settlement by wife. Release of equitable chose 
 in action. Use of separate estate. Promise to settle necessary. When 
 strict proof of promise required. Deeds of separation. Services to be 
 rendered in support of the grantor. Extent to which this is a valuable 
 consideration. Answer on voluntary bond. Promise for another. Ante- 
 cedent debts. Services rendered. Loss or damage. Taking land subject 
 to mortgage. Promise on moral consideration. Debts of infants. Those 
 released by limitations or discharge in bankruptcy. Past and future co- 
 
habitation. Distinctions drawn by the authorities. Illegal considerations. 
 Restraints of trade, marriage, etc. Usurious and gambling debts. Sale of 
 office. Wife's separate earnings. Property exempt from debts. Effect of 
 sale on right of exemption. What may be held as exempt. What may be 
 conveyed for valuable consideration. Assignment of chose in action. 
 When it must be for a valuable consideration. Possession of evidence of 
 debt not prima facie evidence of right. 
 
 § 160. Conveyances JExeculed with Fraudvleni Intent. — Both parties guilty of fraud. 
 Conveyance fraudulent. Where the grantee is acting bona fide. Where 
 deed good at first is afterwards employed for a fraudulent purpose. How 
 far grantee's complicity will avoid a deed. Where deed is partly for a 
 good and partly for a fraudulent purpose. How creditor estopped from 
 impeaching a fraudulent deed. When execution of the deed is postponed 
 by its terms. 
 
 § 161. Deeds Fraudulent per se. — Provisions that work presumption of fraud. Un- 
 reasonable postponement of sale. Ketention of control inconsistent with 
 the terms of the conveyance. Power of revocation. Appointing disquali- 
 fied trustee. Reservation of maintenance. Conveyance of stock in trade, 
 and yet carrying on business. Fixing unreasonable terms of sale. Pro- 
 vision that some of the property may be consumed in supporting the other. 
 Rules governing inferences to be drawn from the continued possession of 
 property after a conveyance thereof. Real and personal property. Statu- 
 toiy provisions. Giving preferences to creditors. Requiring releases. 
 Where a schedule is annexed to the deed. What is not an improper reser- 
 vation. The subject that may be conveyed. Future acquired property. 
 Potential ownerships. Crops to be planted. Wool to be sheared. Profits 
 of voyages of ships. Wages to be earned. Salaries not yet due. Security 
 for future advances. 
 
 I 162. The Evidence of Fraud. — From what fraud is to be inferred. Shifting the 
 burden of proof. Difference of rules between creditors and purchasers. 
 Prima facie cases. The rules of presumption generally. Guilty knowledge. 
 Acceptance of the benefits of fraud. Evidence of the debt. 
 
 § 163. Effect of Voidable Deeds on Creditors. — Provisions of the statute. What 
 ci'editors are meant. Creditors by contract. Debts ex male-fi^io. Volun- 
 teers. When a personal representative may sue. Grantor and grantee 
 cannot sue. Deed avoided as to some debts and sustained as to others. 
 When deed set aside, how creditors take the* fund. When deed will be 
 vacated in toto, and when in part only. 
 
 ? 164. Effect of Fraudulent Deeds upon Purchasers. — Provisions of the statute. 
 Purchaser must have had notice of fraudulent intent of his immediate 
 grantor. Who are purchasers. Creditors secured by deed of trust. Pur- 
 chaser at judicial sale. Whether assent of creditor or trustee is necessary 
 to validity of a deed of trust. Purchaser must be bona fide. The rules as 
 to notice. 
 
 ? 165. Belief Against Sales of Exempt Property.— Provisions of the statute. Relief 
 by injunction and by bill in chancery. Sale of exempt property by the 
 
XXVIII CONTENTS, 
 
 owner. Effect of setting aside conveyance of sucli property. Effect of 
 homestead exemptions. Wlio are laborers. 
 
 § 166. Mechanic^ and Orop Liens. — How they may be enforced or released. 
 Where there is jurisdiction in chancery. Who are mechanics, contractors, 
 etc. Provisions of the statute. Lien for repairs, etc. 
 
 ? 167. Remedies Against Corporations or Public Works. — Injunctions granted cau- 
 tiously. What facts must exist to authorize it. Private property not to 
 be taken without compensation for public use. Not to be "damaged" in 
 West Virginia. How compensation ascertained. Who entitled to the com- 
 pensation where the property has been sold. 
 
 ? 168. Relief Against Usurious Fransaciions. — The statutory provisions. When 
 judgment creditor may proceed by bill in equity. Limitation to filing the 
 bill. Effect of usury. Where no discovery is prayed. Where the usury 
 may be proved without discovery. Review of the decided causes. 
 
 1 169. Relief Against Qamhling Transactions. — The statute on the subject. Limi- 
 
 tation to the suit. 
 § 170. Sale of Estate of Persons under a Disability. — When proceeding may be by 
 petition or motion. When by bill in chancery. Who may and who may 
 not file it. What the bill must state. Who must be parties. Must be 
 verified by oath. When guardian ad litem must be appointed. His answer. 
 How depositions taken. What must be proved. When sale will be de- 
 creed. What done with the money. Dower of wife of infant, or insane 
 person. Proper construction of the statute. Sales by act of the legisla- 
 ture. Where a will forbids a sale. Regularity required in the proceed- 
 ings. Effect of omitting answers of infants over fourteen. Of guardian 
 ad litem. Guardian, committee, etc., may not purchase at sale. Effect of 
 such a purchase. Where one buys from a guardian who has purchased at 
 such a sale. To what extent a purchaser is bound to see to the regularity 
 of the proceedings. 
 
 2 171. Awards. — For what an award may be set aside. Rules at law and in equity. 
 
 Modes of relief provided. What is error apparent on the face. Extent of 
 jurisdiction in chancery. Mistake, fraud, partiality, etc. Regularity of 
 the submission and the award. How intent of arbitrators may be ascer- 
 tained. How objections considered as waived. How submission is revoked. 
 Effect of a partial submission. Where there are both adults and infants. 
 Submission may be parol. Who may make it. In or out of court. What 
 arbitrators must pass on. Effect of the pleadings in the cause. Arbitrators 
 must all act. Exceptions. Form of the award. It must follow the sub- 
 mission. All fair presumptions in favor of the award. The rule of mu- 
 tuality. Return or delivery of the award. Rule to show cause. Judg- 
 ment. Error on the face. Corruption. Partiality. After-discovered 
 evidence. What may be read to show error. What is the law of the case. 
 Conclusiveness of arbitrators' finding. The decided cases. 
 
 2 172. Devisavit vel non. — The statute. Effect of ex parte probates. Limit to 
 right to file a bill. Who may file it. Who bound by ci parte proceeding. 
 For what cause there may be a bill of review. Effect of ex parte sentence 
 
CONTENTS. 
 
 against a will. Proceedings by bill in equity. Frame and matter of the 
 bill. Effect of answer. The issue. Who has opening and conclusion. 
 Contestant is always defendant. When a party may choose his side. Sen- 
 tence of court follows verdict. The evidence. Motion for new trial, and 
 how it is heard. Exceptions to rulings. On whom rests burden of proof. 
 When deposition may be read. What proof of execution required. The 
 signature to the will. Effect of incomplete will. Olograph and other wills. 
 Burderi of proof of sanity. Definition and tests of sanity. Instructions 
 given in a contested case. 
 
 CHAPTEE XI. 
 
 ATa'ACHMENTS IN CHANCERY. 
 
 Sections 173 to 188. 
 
 § 173. The Jurisdiction. — The courts from which attachments may be sued out. 
 Provisions of the statute. Jurisdiction need not be set up in the affidavit. 
 The changes in the law of attachments. Strictness in the proceedings 
 required. The remedy at law and in equity. Cases of concurrent juris- 
 diction. 
 
 g 174. The Provisions of the Statute. — When the suit may be commenced. What 
 affidavit required. How the process must be executed. When injunction 
 may be granted or receiver appointed. 
 
 ? 175. Parties to the Proceeding. — Bule same as in other suits. Where there are 
 two obligors. The absent debtor. Who is a non-resident. The cases de- 
 cided on this point. As to one temporarily absent. One temporarily 
 sojourning or doing business here. When absent person is sued with one 
 residing in the State. Whether he must have property there. Non- 
 resident corporations. Where it. is doing business in the State. Gar- 
 nishee must bC' made a party. Bill may be taken for confessed as to him. 
 Corporation may be a garnishee. Who may and who may not be gar- 
 nishee. When the garnishee dies. 
 
 I 176. The Kind of Debt for which Attachment lAes. — Debt must be due. May be 
 of either legal or equitable nature. May be for damages. May have 
 originated anywhere. Creditor at large may maintain suit to set aside 
 fraudulent deed of non-resident. May be levied on debts not yet due. 
 Whether the debt must be in existence at the time of the attachment. 
 
 § 177. The Pleadings. — Must proceed as other suits in chancery. Eight of 
 amendment. May be set up by cross-bill. When demurrer will not lie. 
 Effect of appearance. Appearance may be for particular purpose. Bill 
 need not pray attachment. Where one sues both at law and in equity. 
 
XXX CONTENTS. 
 
 ? 178. The Affidavit. — Need not be a part of the record. Who may make it. 
 Before whom it may be made. How certified. Strictly construed. What 
 omissions will vitiate the affidavit. What averments are not regarded as 
 essential. Form of affidavit in West Virginia. What averments supplied 
 by the bill. When the affidavit must be filed. The decided causes. 
 
 § 179. The Process. — The endorsement orj the summons. What regarded as 
 sufficient. As to the order of publication. To whom process directed. 
 
 J 180. The Service and Return of Process. — Must be executed like process in attach- 
 ment at law. Property levied on must be under control of the 'officer. 
 What must be endorsed on the summons. Heal estate must be described. 
 When proceeding not defective. Upon whom it may be served. Who 
 must be summoned as a garnishee. What the return must show. Effect of 
 appearance by garnishee. 
 
 I 181. What is Subject to Levy. — Effect of endorsement on the summons. Where 
 the plaintiff desires the property to be taken. As to the execution of the 
 bond. Its conditions and penalty. Effect of its execution. When it must 
 be given. Who may execute it. Obligations of the officer. When he 
 will be considered a trespasser. When the plaintiff' will be considered a 
 trespasser. Levy on real and personal property. What real estate liable 
 to levy. Effects and debts due. Rents. Leases. Property acquired by 
 marriage. In hands of an officer. Fixtures. Property held in trust. 
 Property exempt from levy. Salaries of public school teachers. What 
 tools are exempt. Money deposited with a clerk. Shares of stock in an 
 incorporated company. 
 
 § 182. The Custody and Disposition of Attached Property. — How released from cus- 
 tody of the officer. Forthcoming and suspending bonds. What done with 
 interest and profits pending the suits. When injunction may be granted or 
 receiver appointed. How property preserved from waste or destruction. 
 How property sold. When expensive to keep or perishable. In case there 
 is an appeal. What garnishee must do with property in his hands. May 
 not change it or convert it into money. When he is chargeable with inter- 
 est on money in his hands. 
 
 I 183. The Dearee. — When real estate will be sold. When bond need not be 
 given. As to tbe terms of sale. Where debt is payable in instalments. 
 Debt must be established before decree. When decree against a garnishee. 
 Decree not to be personal. But where there has been appearance. Claim 
 of assignees. Proceedings against a garnishee. Where he fails to appear. 
 What defences he may make. What decree may be rendered against him. 
 Where he claims property to be his own. When he may plead decree in 
 attachment against claim of his creditor. When he may not do so against 
 an assignse of the claim. 
 
 I 184. The Bight to Interplead. — When a petition may be filed. Who may file it. 
 Security for costs to be given. Proceedings on the petition. Petitioner 
 must be an interested party. Character of interest. Does not apply to 
 attachments for rents. Effect on right of action on sheriff's bond. When 
 
petition is demurrable. Order of lien of attachments. As against creditors 
 and purchasers. Against assignees. Eight of petitioner must be tried by 
 a jury. 
 
 ? 185. Tht Bight to Behmr. — What service of a' copy prevents right to rehear. 
 When there may be a rehearing. Limitation to the right. Security for 
 costs, and, how it is given. Order to be made on rehearing. Eelief con- 
 fined to this mode. Proceedings on the petition. Eight of appeal. Where 
 there are two absent debtors and only one appeals. Eights of the garnishee. 
 
 § 186. The Defence to the Attachment. — Who may make defence. Garnishee or 
 officer. When the court may dismiss the attachment ex-officio. Effect of 
 appearance. Burden of proof. Orders in vacation. Notice required. 
 When attachment will be abated. Decree for costs. What is probable 
 cause. How the issue is made up. Effect of statute of limitations. When 
 a jury will be empanelled. When the court will try the case. Where, 
 after garnishee is summoned, he is sued on the debt. • When he may plead 
 the attachment decree. The decided cases. When the garnishee is in- 
 debted by negotiable paper. 
 
 § 187. In Partnership Cases. — How the affidavit is made. Who may sue. Suits 
 by third persons. When a firm may be garnishee. Where one partner is 
 non-resident. When partnership interest may be attached by private 
 creditors. Levy on joint assets. Sales of partnership property. Eules as 
 between private and social creditors. Levy upon real estate of a firm. 
 How it is considered. Effect of a levy upon the partnership dealings. 
 Service of summons on partners. 
 
 I 188. The Lien of the Attachment. — Provision of the statute. How affected by 
 failure to make the affidavit. What lien, service on garnishee creates. 
 Where two attachments ; first quashed and then reversed on appeal ; effect 
 on second attachment. Effect of illegal attachment. Conflict between 
 attaching creditors. As to creditors and purchasers. Docketing and lis 
 pendens. Conflict with assignees. Validity of assignments. The rules 
 where the proceedings are in different States. Where a receiver has been 
 appointed in one State and attachment sued out in another: 
 
INDEX TO CASES CITED. 
 
 A. & D. R. E. Co. V. Bowles, 1123 
 
 A. & D. E. E. Co. V. Eeide, 1212 
 
 Abbott V. Converse, 340 
 
 Abbott V. Button, 834 
 
 Abbott Ins. Co. v. Eailroad Co., 532 
 Abney v. Kingsland, 436 
 
 Abraham v. Ordway, 81 
 
 Achison v. Lindsay, 161 
 
 Acken v. A. & F. Eailroad Co., 
 
 1250, 1252, 1333 
 Ackerman v. Hunsicker, 1021 
 
 Adams v. Adams, 333, 830 
 
 Adams v. Beadle, 944 
 
 Adams v. Haskel, 525 
 
 Adams v. Hubbard, 46, 599 
 
 Adams v. Irwin, 551 
 
 Adams et al v. Logan et al, 36, 488 
 
 Adams v. Michael, 466 
 
 Adams v. Eome City, 1080 
 
 Adams v. Scales, 1172 
 
 Addington v. Etheridge, 563, 565 
 
 Addison et als v. Lewis; &c. , 
 
 583, 1014, 1161 
 Adkins v. Edwards, 
 
 196, 322, 497, 513, 517, 875, 1155 
 Adler et al v. Fenton, 112, 577, 614 
 Adlum V. Yard, 562 
 
 Ager V. Fairfax, 214, 307 
 
 Ageru Eegent's Canal Co., 181 
 
 Agricultural Bank v. Pullen, 975 
 
 Aiken v. Bemis, 792 
 
 Aiken v. Peay, 230 
 
 Akerly v. Vilas, 56 
 
 Akers v. Akers, 355 
 
 Alcock V. Hill, 489 
 
 Alden v. Gregory, 100 
 
 Alderson v. Biggars et als, 13, 72, 368 
 Aldrich V. Cooper, 1086, 1144, 1145 
 Aldrich v. Kinney, 153 
 
 Aldrich v. Wallace, 662 
 
 Aldridge v. Dunn, 984 
 
 Alexander v. Alexander, 
 
 267, 271, 272, 1117, 1118, 1121, 
 
 1122, 1123, 1124, 1223 
 
 Alexander v. Bird, 86, 728 
 
 Alexander v. Coleman, 817, 819 
 
 
 
 Alexander v. Davis, 192, 426 
 
 Alexander v. Deneale, 567 
 
 Alexander v. Howe, 1150, 1155 
 
 Alexander v. Morris, 784, 786 
 
 Alexandria Savings Inst. v. Thomas, 
 
 1021, 1139 
 A., L. & H. E. E. Co. V. Burke, 1073 
 Alford V. Helms, 977 
 
 Alford V. Moore's Adm'r et als, 15, 497 
 Allaire v. Hartshorne, 1074 
 
 AUeberger v. Coakley, 402 
 
 Alleghany City v. Zimmerman, 466 
 
 AUen, In re, 720 
 
 Allen V. Belches, 816, 817 
 
 Allen, &c. u. Bradford, 868 
 
 Allen )). Brown, 172 
 
 Allen V. Center Valley Co., 955 
 
 Allen V. Cook, 559 
 
 Allen V. Deschamps, 70 
 
 AUen V. Freeland, 460, 470 
 
 Allen V. Gibson, 457 
 
 Allen V. Hart, 1068 
 
 Allen V. Hofiinan, 389, 844 
 
 AUen V. Hopson, 29 
 
 AUen and Ervine v. Morgan, &c., 849 
 Allen V. Randolph, &c. , 382 
 
 AUen V. Shriver, 877, 1187 
 
 Allen V. Smith, 69, 240, 680 
 
 Allen, Walton & Co. v. HamUton, 27 
 Allen V. Wells, 663, 665 
 
 AUen V. Withrow, 957 
 
 Alley V. Ledbetter, 44 
 
 AUey et als v. Eogers, 
 
 849, 866, 975, 976, 977 
 AUison V. Allison, , 1183 
 
 Allison V. Taylor, &c., 919 
 
 Almond v. Almond, 334, 337 
 
 Almond v. WUson, 267, 270, 889, 908 
 Alston V. Munford, 294, 749 
 
 Alvis V. Morrison, 1052 
 
 Alviso V. United States, 1248" 
 
 Ambler v. Choteau, ' 452 
 
 Ambler et al v. Warwick & Co., 73, 302 
 Ambrouse's Heirs v. Keller, 129, 131, 
 135, 284, 353, 818, 862, 1223 
 Amelung v. Seekamp, 456 
 
 American Construction Co. v. Jack- 
 sonville E. E. Co. , 1232 
 
XXXIV 
 
 INDEX TO CASES CITED. 
 
 Amick V. Bowyer, 497 
 
 Amick V. Tharp, 464 
 
 Amiss et al v. McGinnis et al, 354 
 
 Amnion's Adm'r v. Wolfe et alg, 751 
 Anchor Stove Works v. Gray, 473 
 
 Anderson d. Anderson, 363, 577, 921 
 Anderson v. DeSoer, 670 
 
 Anderson v. Ellington, 826 
 
 Anderson v. Foulke, 223, 1184, 1198 
 Anderson v. Fox, 295 
 
 Anderson v. Gest, 684 
 
 Anderson v. Harvey's Heirs, 68, 459, 461 
 Anderson et als v. Hook, 562 
 
 Anderson v. Johnson, 
 
 150, 613, 620, 628, 646, 653, 654, 874 
 Anderson v. Nagle,' 
 
 189, 287, 683, 1062, 1155, 1156, 1158 
 Anderson v. Phlegar, Trustee, 472 
 
 Anderson v. Piercy, 
 
 271, 390, 714, 720, 732 
 Anderson v. Eoberts, 30, 43, 46, 47 
 
 Anderson v. Thompson, 754 
 
 Anderson v. Woodford, 285, 358, 841 
 Anderson' s Adm' r v. Burwell' s Ex' or, 
 
 94, 97 
 Anderson's Adm'r v. Lively, 129, 133 
 Andrews v. Avory, 161, 712, 1179 
 
 Andrews v. Fenter, t 29 
 
 Andrews v. Ludlow, 650 
 
 Andrews v. Morse, 1070, 1071 
 
 Andrews v. Mundy, 617, 661 
 
 Andrews v. Scotton, 1189 
 
 Angel V. Hadden, 44, 363 
 
 Angier v. Agnew, 457 
 
 Ankeney v. Hannon, 1098 
 
 Annandale v. Harris, 557 
 
 Annesley v. Moore, 692 
 
 Anthony v. Kasey, 51, 746, 844 
 
 Anthony v. Leftwitch, 276, 347 
 
 Anthony v. Smith, 987 
 
 Antoni v. Wright, Sheriff, &c., 482 
 
 Antrip v. Easnake, 1156 
 
 Apperson v. Dowdy, 343 
 
 Apperson v. Moore, 570, 1017 
 
 Apthorpe, &c. v. Comstock, &c., 
 
 438, 892, 894, 908 
 Arbuckle v. Gates & Brown, 1000, 108] 
 Arbuckle v. McClanahan et als, 502, 683 
 Archer v. Colly and Wife, 175 
 
 Argand Kefiniag Co. v. Quinn, 569 
 
 Argenbright v. Campbell, 1055 
 
 Armentrout' s Ex' ors v. Gibbons, 
 
 142, 235, 239, 987, 1052, 1141, 1153 
 Armentrout v. Shafer, 695 
 
 Armistead v. BaUey, 212, 218, 452 
 
 Armistead v. Ward, 63 
 
 Armstrong v. Armstrong, 595, 899 
 
 Armstrong County v. Brinton, 28 
 
 Armstrong, &o. v. Gilchrist, 324 
 
 Armstrong v. Grafton, 493 
 
 Armstrong, &c. v. Hickman, 882 
 
 Armstrong, Cator & Co. v. Lachman, 573 
 Armstrong v. Pitts, 1122 
 
 Armstrong v. Stone, 240 
 
 Armstrong's Heirs v. Walkup, 
 
 747, 748, 756, 762, 852, 1326 
 Armstrong v. Wilson, 320 
 
 Arnold v. Coburne, 474 
 
 Arnold v. Crowder, 940 
 
 Arnold v. Lewis County Gotirt, 1213 
 Arnold v. Waltz, 963 
 
 Arques v. Wasson, 570, 1017 
 
 Arrington v. Cheatham and Wife, 759 
 Arthur v. Broadnax, 329 
 
 Arthur, &c. v. Case, 464 
 
 Asberr/ s Adm' r v. Asberry' s Adm' r 
 
 et als, 725, 727, 734, 744, 754 
 
 Ashby V. Bell, 
 
 126, 257, 698, 762, 837, 867, 871 
 Ashby V. Kiger, 
 
 875, 876, 1208, 1209, 1222, 1223 
 Ashby* s Adm'r «i. Porter, 665 
 
 Ashby" s Adm' r t). Smith' s Ex' X, 489 
 Aspinwall v. Banickman, 1218 
 
 Aetor V. Turner, 538 
 
 Atchison v. Peterson, 456 
 
 Atherton v. Fowle, 1240 
 
 Atkinson v. Brockett, 439 
 
 Atkinson v. Jordan, 569 
 
 Atkinson v. Henshaw, 163 
 
 Atkinson v. Leonard, 60, 63 
 
 Atkinson v. Marks, 871 
 
 Atkinson v. McCormick, 952 
 
 Atkinson v. Eobinson, 
 
 92, 93, 96, 97, 98, 125 
 Atlanta Natl. Bank v. Douglass, 489 
 Atlantic, &c. E. Co. v. Ironmonger, 1127 
 Attorney General v. Cohoes Co. , 498 
 Attorney General v. Corporation, 267 
 Attorney General v. Heelis, 181 
 
 Atwell's Adm'r «. Milton, 295 
 
 Audenreid v. P. & E. E. E. Co., 483 
 Auditor 1). Johnson's Ex' or, 172 
 
 Auditor v. Nicholas, 14 
 
 Aultman v. Mallory, 1(102 
 
 Auman v. Black, 621 
 
 Austin V. Cochran, 175 
 
 Austin V. Eichardson etals, 70, '146, 742 
 Austin's Adm' X D. Winston's Ex' X, 79 
 Averett v. Lipscombe, 952, 1114 
 
 Avery v. Petten, • 420 
 
 Ayers v. Blair, 1215 
 
 Aylet V. Easy, 321 
 
 Ayre v. Burke, 1147 
 
 Ayres v. Moorehead, 43 
 
 Babcock, In re, 29, 34 
 
 Babcock v. McCommant, 64 
 
INDEX TO CASES CITED. 
 
 Bacheldor v. Elliott's Adm'r et als, 69 
 Bacheldor, &c. v. Kichardson, 1227 
 
 Bacheldor v. White, 623 
 
 Backhouse's Adm'r u Jett's Adm'r, 1137 
 Bacon v. Bacon, 488 
 
 Bacon v. Frisbie, 376 
 
 Badeau v. Kogers, 44 
 
 Badger v. Badger, 
 
 80, 97, 99, 100, 101, 120, 121 
 Baer Sons Grocers v. Williams, 563, 664 
 Baham v. Bach, 1174 
 
 Bahn v. Bahn, 331 
 
 Baggarly v. Gaither, 1031 
 
 Bailey v. Bailey, 328, 336, 342 
 
 Bailey v. HUl, 478, 541, 1114 
 
 Bailey v. Inglee, 141, 236 
 
 Bailey v. Jackson, 87 
 
 Bailey's Adm'i v. Eobinson, 843, 1173 
 Bailey v. Stewart, 594 
 
 Bain & Bros. v. Buff's Adm'r, 
 
 952, 1103, 1104, 1114 
 Baird v. Bland, 302, 870 
 
 Baker v. Backus, 518 
 
 Baker v. Copenbarger, 930 
 
 Baker v. LorUlard, 589 
 
 Baker v. Morris' s Adm' r, 91, 96, 326, 408 
 Baker v. Morton, 921 
 
 Baker v. Oil Tract Co., 
 
 197, 232, 321, 425, 1169 
 Baker et als v. Bhinehard, Mayer & 
 
 Co., 469 
 
 Baker v. Saunders, 468 
 
 Baker v. Vining, 952 
 
 Baker v. WUlia, 968 
 
 Baldwin v. Carter, 551 
 
 Baldwin v. Darst, 69, 457 
 
 Baldwin v. Ely, 326 
 
 Baldwin v. Elliott's Adm'r et als, 70 
 Baldwin ■;;. Lawrence, 187 
 
 Baldwin v. Norton, 988 
 
 Ball et als v. Ball et als, 777 
 
 Ball V. Cox, 1257 
 
 Ball et als v. Johnson' s Ex' or et als, 240 
 Ball V. Stewart, 1258 
 
 Ball V. The Bank, 779 
 
 Ballard v. Great West. M. & M. Co., 652 
 Ballard D. Thomas and Ammon, 51, 1190 
 Ballou V. Ballou, 311 
 
 BaUow et als v. Hudson et als, 602, 604 
 Baltimore & Ohio R. E. Co. v. Gal- 
 
 lahue's Adm'r, 411, 621, 624 
 
 Baltimore & Ohio R. B. Co. v. Van- 
 
 derworker, • 1251 
 
 Baltimore & Ohio E. E. Co. v. 
 
 Wightman's Adm'r, 620 
 
 Baltimore & Ohio E. E. Co. v. 
 
 Wheeling, 
 
 182, 183, 412, 429, 438, 498, 710 
 Baltimore P. B. & L. Soc. v, Smith, 1187 
 Baltimore S. Packet Co. v, Williams, 680 
 
 B. & P. E. E. Co. V. Fifth Baptist 
 
 Church, 462, 465 
 
 Baltman v. Harness, 460 
 
 Baltzeri). E. E. Co., 572 
 
 Bamber v. Savage, 1172 
 
 Bank v. Bowman, 572 
 
 Bank v. Carrolton E. E., 236 
 
 Bank v. Chambers, 1099, 1114 
 
 Bank v. Corder, 547 
 
 Bank v. Craig, 841 
 
 Bank v. Fugate, 586 
 
 Bank v. Goddin, 1023 
 
 Bank v. Hays, 114 
 
 Bank v. Hupp, 24 
 
 Bank v. Lanier, . 1076 
 
 Bank v. Martin, 1073 
 
 Bank v. Parsons, 1174 
 
 Bank v. Partee, 1110 
 
 Bank of Alexandria v. Patton, 
 
 105, 107, 426, 574 
 Bank v. Stevens, 920 
 
 Banl^D. Widner, 591 
 
 Bank of America v. Banks, 1092 
 
 Bank of Bellow's Falls v. E. & B. 
 
 E. E. Co., 53, 63 
 
 Bank of Bethel v. Pahquioque Bank, 524 
 Bank of Greensboro v. Chambers, 1099 
 Bank of Holly Springs v. Pinson, 1077 
 Bank of Kentucky v. Hancock, 447 
 Bank of Marietta v. PmdaU, 147, 182 
 Bank of Metropolis v. Guttschlick, 888 
 Bank of Mobile v. Hall, 822 
 
 Bank of Old Dominion v. Allen, 
 
 115, 286, 926 
 Bank v. Parsons, 487 
 
 Bank of Penn. v. Wise, 1196 
 
 Bank of U. S. v. Biddle, 84 
 
 Bank of U. S. 'v. Carrmgton, 952, 992 
 Bank of U. S. v. Merchants Bank, 620 
 Bank of U. S. v. Eitohie, 222 
 
 Bank of U. S. v. White, 218 
 
 Bank of Va. v. Craig, 318, 753, 760, 841 
 Bank of Va. v. Gettinger, 659 
 
 Bank of Utica v. Findo, 1009 
 
 Bank of Va. v. Eeynolds, 344 
 
 Bank of Va. v. Ward, 344 
 
 Bank of Washington v. Arthur, 433 
 Bank v. Bates, 267 
 
 Bank v. Mercereau, 376 
 
 Bank v. Watson, 234 
 
 Bank v. Wilson, 110 
 
 Bankart v. Houghton, 467 
 
 Banks v. Anderson et als, 134 
 
 Banner v. Eosser, 1023 
 
 Bansimer v. Fell, 187, 188, 190 
 
 Bants V. Cole, 1174 
 
 Barbee & Co. v. PannUl, • 168, 655 
 Barber v. Elkins & Simpson, 44 
 
 Barber v. Boot, 152 
 
 Bardwell v. Perry, 662 
 
INDEX TO CASES CITED. 
 
 Barefoot v. Fry, 302 
 
 Bargamin et als v. Clarke et als, 98 
 
 Barger v. Buckland et als, 
 
 173. 190, 547, 548, 849, 859, 861, 
 862, 863, 864, 877, 1151, 1181 
 Barhydt v. Perry, 665 
 
 Barker v. Elkins, 28 
 
 Barker v. Jenkins, 963, 1218, 1220 
 
 Barker v. Eayer and Wife, 908 
 
 Barker v. Wheelip, 1007 
 
 BarksdaJe et als v. Finney et als, 184 
 Barksdale v. Garret, 974 
 
 Barksdale v. Hendree, 613 
 
 Barksdale et als v. Neal, 250, 251, 260 
 Barnes v. Mott, , 489, 979 
 
 Barnes v. Syester, 607 
 
 Barnes v. Trafters, 163 
 
 Bainet v. Bamet, 15, 978, 1027 
 
 Bamett v. Bamett, 39, 554 
 
 Bamett v. Kinney, 652 
 
 Bamett & Co. v. Smith & Co., 358, 359 
 Bamett v. Spencer, 450^ 498 
 
 Bamett et al v. Watson et al, 788, 801 
 Barney v. Baltimore City, 143, 260, 273 
 Barney v. Parsons, 750 
 
 Barney v. Saunders, 733 
 
 Bamum v. Frost's Adm'r et als, 
 
 742, 743, 754 
 Barr, Assignee, v. White et als, 
 
 173, 220, 290, 1154, 1155 
 Barrell v. Sabine, 995 
 
 Barrett v. Barrett, 79 
 
 Barret v. Floyd, 13, 23 
 
 Barrett v. McAllister, 151, 382, 814 
 Barret v. Pritchard, 1002 
 
 Barrow v. Paiton, 1073 
 
 Barry v. Barry, 132, 841 
 
 Barry v. Jones, 529 
 
 Bartlett, Ex parte, 340 
 
 Bartlett v. Bartlett, 1187 
 
 Bartlett v. Clevenger, 572 
 
 Bartley v. McKinney, 803 
 
 Barton v. Barbour, 523 
 
 Barton v. Bowen, 755, 758, 1326 
 
 Barton v. Brent, 1028 
 
 Barton v. Eidgeway, 
 
 526, 718, 724, 725, 1204 
 Barton v. Wiley, 29 
 
 Basey v. Gallaher, 371, 381 
 
 Bass V. Scott, 117 
 
 Basset v. Nos\(;orthy, 397, 1038, 1043 
 Bassett's Adm'r v. Cunningham's 
 
 Adm'r, _ 80, 367, 408, 597, 599 
 
 Batchelder v. Eichardson, 
 
 1214, 1215, 1227 
 Batchelder v. Sharpleigh, 641 
 
 Batchelder v, White, 267, 270, 672 
 
 Bateman v. WUloe, 92 
 
 Bates V. C, M. & St. P. E. E. Co., 621 
 Bates V. Dandy, 11 
 
 Bates V. Singer, 1143 
 
 Bates V. Shifer, 1145 
 
 Batesville Institute v. Kaufman, 
 
 172, 1141 
 Bath V. Sheverin, 302 
 
 Battaile v. Maryland Hospital, 821 
 
 Batwile f. Maryland Hospital, 353 
 
 Baugher v. Eichelberger, 276, 287 
 
 Baxter v. Baxter, 342 
 
 Baxter v. Moore, 69, 799 
 
 Bayard, &c. v. Hoffinan, &c., 189, 945 
 Bayard v. Lombard, 1224 
 
 Baynard v. Norris, 1054 
 
 Bayley v. Adams, 383 
 
 Bayley v. Greenleaf, 985 
 
 Baylor's Lessee v. De Jamette, 
 
 118, 165, 589, 831, 881 
 Baylo V. Fulkerson, 761 
 
 Beach v. White, 172 
 
 Beach v. Woodyard, 861 
 
 Beale v. Diggs et als, 892 
 
 Bealev. Thompson, &c., 809 
 
 Beale v. White, 1010 
 
 BeaU V. New Mexico, 160, 745, 857 
 Beall V. Shauld, 272 
 
 BeaU V. Taylor, 926 
 
 Beall V. Silver, 282, 868, 869 
 
 Beall !). White, 1013, 1083 
 
 Beall' s Adm'r v. Taylor's Adm'r, 163 
 Beaman v. Whitney, 1029 
 
 Bean v. Simmons, 406 
 
 Bean v. Smith, &c., 578 
 
 Beard v. Arbuckle, 474, 1145, 1191 
 
 Beardesley i.. A. & L. E. E. Co., 1224 
 Beatie v. Butler, 1034 
 
 Beatty t>. Beaty, 607 
 
 Beaty v. Vem, 1177 
 
 Beauford v. Collier, 1095 
 
 Becker v. Elkens, 28 
 
 Beckford v. Kemble, 52 
 
 Beckford v. Wade, 117, 121, 137 
 
 Beckleyi). Eiverside Land Co., 476, 481 
 Beckley v. Palmer, 
 
 12, 32, 71, 260, 449, 469 
 Beckman v. Frost, &c. , 997 
 
 Beckman v. S. & S. E. E. Co., 484 
 
 Beckman, &c. v. Waters, 348 
 
 Beckwith v. Butler, 699, 748 
 
 Bedinger v. Wharton, 1095 
 
 Bedford v. Burton, 948 
 
 Bee V. Burdett, 1257 
 
 Bee V. Eussell, 817 
 
 Beacher v. Bagby, 858 
 
 Beebe et al v. Eussell, 817, 820 
 
 Beebe v. Wilson, Bums & Co., 950 
 
 Beecher v. Wilson, Bums & Co., 
 
 428, 1122 
 Beacher v. Lewis & Bagby, 60, 1000 
 Beers v. Spooner, 876 
 
 Beery et als v. Irick et als, 849, 1203 
 
INDEX TO CASES CITED. 
 
 XXXVII 
 
 Beekman v. Waters, 348 
 
 Bein et al v. Heath, 495 
 Beirne v. Eosser, 
 
 245, 246, 248, 262, 1304 
 
 Belk V. Meagher, 1256 
 
 Belknap v. Belknap, 181, 464, 465 
 
 Belknap v. Trimble, 464 
 
 BeU V. Calhoun, 433 
 
 Bell V. Commonwealth, 902 
 
 Bell V. Crawford, 85 
 
 Bell V. Farmers Bank, 1045 
 
 Bell V. McConkey, 230, 1203 
 
 Bell V. Moon, 92, 422, 560 
 
 Bell V. Morrison, 802 
 
 Bell V. Parker, 18 
 
 Bell V. Woods, 99 
 
 BellonaCo.'iCase, 493 
 
 Bellows V. Stone, 346 
 
 BeUow V. MuheU, 63 
 
 Belt & Conway v. Wilson, 560 
 Belton V. Apperson, 
 
 22, 263, 284, 345, 346, 347, 433 
 
 Belts V. Union Bank, 550 
 
 Bendall v. Bendall, 720 
 
 Benjamin v. Maddon, 563, 1031 
 
 Benn v. Hatcher, 626 
 
 Bennie v. Vandever, 687 
 
 Benedict v. Lynch, 128 
 
 Bennet v. Paine, 1027 
 
 Bennett v. Bennett, 205 
 Bennett v. Claiborne, 751, 755, 756, 758 
 
 Bennett v. Lee, 138 
 
 Bennett v. Maule, 488 
 
 Bennett v. Pierce, 1024 
 
 Benson v. Humphreys, 1187 
 
 Benson v. Le Boy, 692 
 
 Benson v. Snyder, 188, 286 
 
 Benoyer v. FeU, 187, 188, 190 
 
 Bent V. Lipscomb, 1070 
 
 Bent V. Timmons, 428 
 
 Bently v. Dillard, 29, 30 
 
 Bently v. Harris, 550 
 
 Bequillard v. Bartlett, 968 
 
 Berkshire v. Evans, 183 
 Berlin v. Melhom, 1177, 1183, 1184 
 
 Berry, Ex parte, 556 
 
 Berry v. Pullen, 488 
 
 Berry v. Wiedman, 953 
 
 Beveridge v. Lacy, 456, 463 
 Beverly v. Brooke, 
 
 282, 396, 514, 524, 531, 541, 796, 
 875, 877, 975, 1037, 1040 
 
 Beverly v. Ellis & AUan, 1050 
 
 Beverly v. Bhodes, 187, 286, 288 
 
 Beverly v. Walden, 430, 488, 889 
 
 Beyer v. Beyer, 330 
 
 Bias V. Vickers, 39 
 
 BicUe V. Chrisman, 102, 112, 622 
 
 Bicknell v. Field, 53 
 
 Biddle's Appeal, 772 
 
 Bierly v. Williams, 594 
 
 Bieme v. Mann, 15, 30 
 
 Bieme v. Bay, 276, 420, 814 
 
 Biggins V. Brockman, 30, 47 
 
 Bigelow V. Huntly, 1002 
 
 Bile V. Cureton, 106 
 
 Bill V. SchiUing, 90, 94 
 
 Billings V. Billings, 572 
 
 BiUingslea v. Gilbert, 411, 494, 503 
 
 Billingslea v. Menear, 562 
 Billups V. Sears, 
 
 30, 46, 68, 200, 202, 561, 575, 1022 
 Bilmeyer v. Sherman, 188, 190, 293, 392 
 
 Bimely v. Dawson, 154 
 
 Bingham v. Dawson, 359 
 
 Bmney's Case, 448, 504 
 
 Binns v. Waddill, 536 
 
 Bird t). Bird, 311 
 Bird' s Committee v. Bird, 
 
 193, 194, 274, 427 
 
 Bird V. Stout, 345 
 
 Birely v. Staley, 545 
 
 Bishop of Winchester v. Beavor, 138 
 
 Bishop V. Bishop, 934 
 
 Bishop V. Dean, 28 
 
 Bishop V. Duncan, 30, 43 
 
 Bishop V. Schnider, 1044, 1052 
 
 Bissell V. Briggs, 155 
 
 Bissell V. Goshen Company, 1242 
 
 Bissell V. Heyward, 726 
 
 Bissell ti. Hopkins, 567 
 
 Bizzell V. Nix, 124 
 
 Black V. Kirgan, 168, 1206 
 
 Black V. Shf eve, 431 
 
 Black V. Smith, 19, 52 
 
 Blackburn v. Crawfords, 378 
 
 Blackburn v. Grayson, 984 
 
 Blackford v. Hurst, 1047 
 
 Blackshire v. Petit, 578, 1037 
 
 Blackstone Bank v. Davis, 950 
 
 Blackham v. The Warder, &c., 181 
 
 Blackhouse v. Jett, 1137 
 Blackwell v. Bragg, 
 
 137, 296, 381, 401, 682 
 
 Blackwell v. Lane, 1045 
 
 Blain v. Mounts, 1145 
 
 Blair v. Bromley, 101 
 
 Blair v. Carter, 979 
 
 Blair V. Core, 523, 1164 
 
 Blair v. Owles, 1038 
 
 Blair v. Sayre, 1024 
 
 Blair D. Thomson, '848,865,972 
 
 Blair v. Turtle, 247 
 
 Blakely v. Patrick, 1008 
 
 Blakemore v. Wise, 490, 975 
 
 Blanchard v. Pascal, 968 
 
 Bland v. Stewart, 401 
 
 Bland V. Wyatt, 231, 683 
 
 Blaner v. Murray, 464 
 
 Blanford v. Barger, 490 
 
xxxviii 
 
 INDEX To CASES CITED. 
 
 Elanton v. So. Fert. Co., 181, 213 
 
 Blanton v. Taylor, 553 
 
 Blennerhasset v. Sherman, 572 
 
 Bliss V. Lawrence, 571, 1016 
 
 Blomfield v. Eyre, 66 
 
 Blonheim v. Moore, 516 
 
 Blossom V. EaUroad, 1161, 1171, 1224 
 Blose V. Bear, 962 
 
 Blow t>. Maynard, 428, 549, 553, 556, 
 779, 974, 1085, 1136, 1146, 1153 
 Blow V. Taylor, 450, 498, 500 
 
 Blount V. Barrow, 422, 748 
 
 Bluestone t>)al Co. v. Bell, 476 
 
 Board of Liquidation v. McComb, 454 
 Board r. O'Connor, 1080 
 
 Board v. Wilson, 481 
 
 Boaz V. Hamner, 718 
 
 Bodkin v. Arnold, 831 
 
 Boggs V. McCoy, 163 
 
 Boggs V. Johnson, 698 
 
 Boggen 11. TJichards, 558 
 
 Bogges V. Meredith, 307, 311 
 
 Bogjasco V. Richards, 110 
 
 Bohmenn v. City Bank, 1075 
 
 Eohn II. Sheppard, 168 
 
 Boisseau v. Boisseau, 744 
 
 Boiling V. Boiling, 94, 99, 127 
 
 Boiling V. Lersner, , 448, 831, 870 
 Boiling V. Teal, 213, 306, 309, 568, 1025 
 Boiling V. Turner, 427 
 
 Bolton V. Bolton, 105 
 
 Bolton V. Corporation, 377 
 
 Bolton V. Gardner, 367, 382, 385 
 
 Bond V. Hopkins, 81 
 
 Bond V. Seymour, • 559 
 
 Bonithon v. Hockmore, 998 
 
 Bonnerner v. Negrete, 979 
 
 Boody V. Davis, 1045 
 
 Booker v. Booker, 87, 90 
 
 Boos ti. Ewing, 984 
 
 Booten v. Scheffer, 128 
 
 Booth V. Barnum, 1046, 1052, 1054, 1058 
 Booth V. Clark, 523 
 
 Booth V. McJUton, 359, 805 
 
 Booyer v. Addison, 1093 
 
 Borden v. Fitch, 152, 154 
 
 Borst V. Corey, 988 
 
 Borst V. ISfalle, 226, 290, 915, 932, 954, 
 1060, 1061, 1063 
 Boschen v. Jurgens, 482, 1186, 1187 
 Bosher ti. Land Co. , 
 
 • 201, 266, 267, 268, 270 
 Bosley v. Taylor, 1143 
 
 Boston & A. E. E. v. Pullman Pal- 
 ace Car Co., 1242 
 Boston & Co. II. C. & O. E. E. Co., 1079 
 Boston Blower Co. v. Carman L. Co., 
 
 260, 265, 276, 583 
 Boston Diatitle Co. v. Florence Mfg. 
 Co., 464 
 
 Bostwick's Case, 755 
 
 Botifeur v. Weyman, 126 
 
 Boughner v. Clarksburg et al, 482 
 
 Boughton V. Exchange Bank, 1240 
 
 Boulware & Williams v. Jewett, 902 
 Bourke v. Granberry, 151 
 
 Bowden^D. Cross, 445 
 
 Bowden v. Lewis, 463 
 
 Bowden t>. Parish, 695, 1006, 1028 
 
 Bowden v. Schatzell, 662 
 
 Bowen v. Hoskins' Adm'r, 490 
 
 Bowers' Adm'r ti. Bowers, 684, 694, 1029 
 Bowie t). Poor School, &c., 981,1054, 1148 
 Bowker v. Smith, 536 
 
 Bowler v. Huston, 
 
 154, 155, 648, 662, 923, 925, 927 
 Bowles V. Braner, 473 
 
 Bowles V. Woodson, 128, 405 
 
 Bowman v. Hicks, 552, 932, 1037 
 
 Bowman v. Miller, 979 
 
 Bowney v. Eidgard, 121 
 
 Bowyer v. Creigh, 456, 461 
 
 Bowyer v. Lewis, 819 
 
 Boyce's Ex' or v. Grundy, 65 
 
 Boyce v. Kalbaugh, 465 
 
 Boyce & Wright v. Strothers, 
 
 362, 1185, 1198 
 Boyd V. Baynham, 249 
 
 Boyd V. Boyd, 714, 723, 724, 734, 765 
 Boyd V. Gunnison, 695 
 
 Boyd, &c. V. Hamilton, &c., 892 
 
 Boyd's Heirs v. Magruder, &c. 594 
 
 Boyd's Sureties v. Oglesby et als, 
 
 717, 765, 770 
 Boyd, &c. V. Stainback, 549 
 
 Boykms' Dev. v. Smith, 263, 349 
 
 Boyle V. Townes, 524 
 
 Boynton et als v. McNeal, 548, 581 
 
 Bracken v. Preston, 456, 460 
 
 Braden v. Reitzenb'erger, 14 
 
 Bradford v. Abend, 331 
 
 Bradford v. Andrews, 601 
 
 Bradley v. Bradley, 825 
 
 Bradley v. Zehman, 214, 305, 401 
 
 Bradish v. Gibbs, 550 
 
 Bradshaw v. Heath, 153 
 
 Brakeley v. Tuttle, 451, 501 
 
 Brahmstadt v. McWhirter, 566 
 
 Brandies v. Cochrane, 
 
 1237, 1238, 1245, 1248 
 Branch ti. Burnley, &c., 56 
 
 Brandon «. Green, 28 
 
 Branford v. Karr & Hickson, 899 
 
 Brasher's Ex'ors v. Van Cortlandt, 280 
 Brawley v. Catron, 989 
 
 Braxton v. Bell, 1004, 1031 
 
 Braxton ti. Gaines, &o., 568 
 
 Braxton v. Gregory, 871 
 
 Braxton's Adm'r, &c. v. Harrison's 
 Ex'ors, 492 
 
INDEX TO CASKS CITED. 
 
 XXXIX 
 
 Braxton v. Lee's Heirs, 139 
 
 Braxton v. Wood's Adm'r, 118 
 
 Breokenridge v. Auld et ala, 221 
 
 Breedin v. McMinn's Adm'r, 
 
 964, 971, 1201 
 Breeding v. Davis, 1123 
 
 Bregaw u. Claw, 158 
 
 Brengle v. Beesly, 488 
 
 Brengle v. Bushey, ' 490 
 
 Brengle v. Eichardson, 831, 975, 1154 
 Brent v. Washington's Adm'r, 
 
 207, 404, 1258 
 Brent's Adm'r v. Cleyinger, 
 
 716, 732, 765 
 Brent's Adm'r v. Senseney et als, 
 
 689, 706, 767, 771 
 Brewer v. Harris, 61 
 
 Brewer v. Huttou, 640 
 
 Brewis et als v. Lawson, 163, 919, 1084 
 Brewster v. Baker, 1002 
 
 Brewster v. Wakefield, 1224 
 
 Brickhouse v. Hunter, Banks & Co., 
 
 74, 593 
 Bridges v. Philips, 271 
 
 Bridges v. Pleasants, 178 
 
 Brien v. Pitman, 613, 628, 647 
 
 Briggs V. Dorr, 560 
 
 Briggs V, Enslow, 1142 
 
 Briggs 11. Hill, 1140 
 
 Briggs V. Sperry, 272 
 
 Brill V. Tuttle, 1149 
 
 Biily V. Sugg, 1144 
 
 Brinkerhoffr. Brown, &c., 
 
 73, 190, 202, 236, 266, 420 
 Brinkley v. Brinkley, 336 
 
 Briscoe v. Ashby et als, 
 
 397, 954, 1038, 1039, 1088 
 Briscoe v. Bronaugh, 984 
 
 Briscoe v. Clark, 561 
 
 Bristol I. & S. Co. v. Thomas, 185, 186 
 Bristow V. Home Bldg. Co., 506, 520 
 Britton v. Lewis, 125 
 
 Britton v. Williams' Devisees, 594 
 
 Broadus et als v. Eosson, &c., 
 
 743, 751, 753 
 
 Brock V. Eice et als, 1173, 1177, 1179 
 
 Brockenbrough' s Ex' or et al v. 
 
 Brockenbrough's Adm'r et als, 
 
 571, 917, 967, 979, 1010, 1011, 1012 
 
 Brockenbrough's Ex' ors?). Spindle's 
 
 Adm'rs, 22, 58, 433, 434, 895, 898, 
 
 900, 903, 904, 906, 908, 911, 1017 
 
 Brockenbrough v. Turner, 717 
 
 Brockett v. Brockett, 1236, 1248 
 
 Brockway v. Innes, 532 
 
 Broder v. Fitch, 153 
 
 Bromley v. Holland, 60, 63, 64 
 
 Bromley v. Smith, 181 
 
 Bronoon v. Vaughn, 573, 578 
 
 Bronson v. La Crosse E. E., 322, 428 
 
 Bronson v. Vaugh, 411 
 
 Brook V. Smith, 659 
 
 Brooke et als v. Shacklett, 178, 179 
 Brooks V. Marbury, 106 
 
 Brooks V. Norris, 1237 
 
 Brooks V. Eailway Co., 1079 
 
 Brookshank v. Smith, 101 
 
 Brotten v. Bateman, 724 
 
 Brough V. Higgins, 958 
 
 Broughton v. Coffer, 423 
 
 Broughton v. Exchange Bank, 1127 
 Broughton v. Phelps, 34 
 
 Brown v. Armistead, 138, 853 
 
 Brown v. Bashford, 778 
 
 Brown v. Bedford City L. & I. Co., 266 
 Brown v. Buckner, 267, 270 
 
 Brown v. Butler, 112, 136 
 
 Brown v. Brown, 953 
 
 Brown v. Caldwell, 178 
 
 Brown v. Campbell, 114, 1147 
 
 Brown v. Carter, 550 
 
 Brown Chem. Co. v. Meyer, 468 
 
 Brown v. County of Buena Vista, 
 
 15, 91, 92, 93, 97, 100, 101, 399 
 Brown v. Gilmer, 984, 1200 
 
 Brown v. Griffith, 118 
 
 Brown v. Hoff, 493 
 
 Brown v. Hume, 259, 867, 918 
 
 Brown v. Johnson, 172, 836 
 
 Brown v. Keene, 260 
 
 Brown et als v. Lambert's Adm'r et 
 
 als, 117, 738 
 
 Brown v. Leitch, 763, 966 
 
 Brown et als v. Moore, 1029 
 
 Brown v. Pierce, 921, 1146 
 
 Brown v. Eay, 1144 
 
 Brown v. Eickets, _ 287, 348, 349, 442 
 Brown v. SommervUle, 659 
 
 Brown v. Speyers, 17, 359 
 
 Brown, &c. v. Story, 175, 319 
 
 Brown v. Swan, 34, 44, 326, 433 
 
 Brown v. Taylor's Committee, 560 
 
 Brown V. Tarkington, 795 
 
 Brown v. Toell's Adm'r, 15, 21, 276 
 Brown v. Ward, 609 
 
 Brown v. WaUaoe, 1088, 1188 
 
 Brown v. Wheeler, 309 
 
 Brown v. Wyman, 1081 
 
 Browne 11. Buckover, 1123 
 
 Browne v. Carr, 489 
 
 Browning v. Headley, 11, 655 
 
 foucer. E. E. Co., 1207 
 
 Bruen v. Crane, 171 
 
 Brule V. Bickerton, 126 
 
 Bryan v. Cole, 1047 
 
 Bryan v. Moore, 161 
 
 Bryan t). Stump, &c., 473 
 
 Bryant v. Groves, 94, 420 
 
 Bryant v. Pennell, 570, 1016 
 
 Bryce v. Lake, 87 
 
IKDEX TO CASES CITED. 
 
 Buohan v. James, 118 
 
 Buchan v. Sumner, 917, 955 
 
 Buchanan v. Clarke, 222, 474, 835, 1193 
 Buchanan v. King's Heirs, 258 
 
 Buck V. Pennybacker's Ex'ors, 199, 233 
 Buck V. Swazy, 957 
 
 Buckingham v. Peddicord, 417 
 
 Buckley v. Ckirse, 346 
 
 Bucklin v. Ford, 137 
 
 Buckmaster v. Grundy, 29 
 
 Buckner v. Kingsbury, 1045 
 
 Buckner v. Metz, 1211, 1219 
 
 Buckstaff J). EusseU, 1209 
 
 Buddicum v. Kirk, 791 
 
 Buehler, Bowright & Co. v. Cherer- 
 
 out&Co., 828 
 
 Buford V. N. Eoanoke Land Co. , 
 
 129, 131 
 Buffalo V. Pocahontas, 180, 181 
 
 Buffington v. Harvey, 356 
 
 Buel V. Van Ness, 1240 
 
 Buie V. Buie, 87 
 
 Bulkley v. Bulkley, 84 
 
 BuU et als v. Bead et al, 180,207,213, 454 
 Bullard v. Bank, 1076 
 
 BuUard v. Briggs, 553 
 
 Bullitt's Ex'ors v. Songsters, 228 
 
 Bullitt's Ex' orsu. Winston, 251 
 
 Bullock t). Goodall, &c., 784 
 
 Bullock J). Irvine's Adm'rs, 892 
 
 Bumgardner v. Harris, 112 
 
 Bumpas v. Dotson, 1009 
 
 Bunce v. Gallaher, 239 
 
 Bunting v. Kicks, 1145 
 
 BurbanK v. Bethel Steam Mill Co., 
 
 466, 554 
 Burbridge v. Higgins' Adm'r, 
 
 880, 883, 945 
 Burch V. Scott, 841 
 
 Burden, Trustee, v. Quarrier, 848 
 
 Burdett, Gdn, v. Cain, Adm'r, 192 
 
 Burgess v. Belvin, 1047 
 
 Burgess v. Lovengood, 30 
 
 Burgess v. Smith, 53 
 
 Burgess v. Wheate, 4 
 
 Burging v. McDowell, 879 
 
 Burk V. Burk, 328 
 
 Burke v. Adams, 1045 
 
 Burke v. Jones, 118 
 
 Burke v. Lynch, 123 
 
 Burke t). Smith, 100,121,1076 
 
 Burke V. WaU, 465 
 
 Burkholder et als v. Ludlam, 
 
 568, 795, 1032, 1223 
 Burks V. Brown, 550 
 
 Burr V. Burr, 337 
 
 Burlew, Trustee, v. Quarrier, 
 
 142, 156, 236, 345, 415 
 Burlington & M. E. E. Co. v. Thomp- 
 son, 621, 965 
 
 Burlington v. Schwarzman, 455 
 
 Burley v. Weller, 276 
 
 Burner v. Hevener, 381, 401 
 
 Burnett and Wife v. Hawpe's Ex' or, 
 
 1103, 1104, 1113, 1114 
 Burnham v. Floury, 29 
 
 Burnley's Adm'r v. Duke et als, 712 
 Burns v. Mearns, 460 
 
 Burpass v. Webb, 600 
 
 Burrall v. Jewett, ' 467 
 
 Burrow & Jennings v. Alter et als, 562 
 Burson u Andes, 177,1023,1118 
 
 Burruss, Son & Co. ?;. Trant, 674 
 
 Burt V. Timmons, 572, 573 
 
 Burtners v. Keran, 39, 40, 151 
 
 Burton v. Brown's Ex! or et als, 
 
 707, 832, 1262 
 Burton v. Marshall, 455 
 
 Burton v. MiUs, 577, 967, 1143 
 
 Burton v. Scott, 608 
 
 Burton v. Slaughter, 8 
 
 Burton v. Wiley, 30 
 
 Burwell's Ex' or v. Anderson's Adm'r, 
 
 95, 127, 295, 710, 733 
 Burwell, &c. v. Burwell, &c., 254, 738 
 Burwell et als v. Corbin et als, 
 
 193, 808, 894 
 Burwell's Adm'r v. Fauber, 1086 
 
 Burwell v. Hobson, 68, 464 
 
 Burwell' s Ex' or v. Lumsden et als, 554 
 Busey v. Gallagher, 891 
 
 Bush V. Beall, 855 
 
 Bush V. Campbell, 836 
 
 Bush V. Martins, 303 
 
 Bushby v. Munday, &c., 52 
 
 Buster v. Holland, 819 
 
 Butcher v. Peterson, 482 
 
 Butler D. Butler's Adm'r, 818 
 
 Butt V. EUis, 570, 1017, 1018 
 
 Butts V. Blunt et als, 800, 802 
 
 Byars v. Thompson, 596, 597 
 
 Byrne and Wife v. Edmonds, 99 
 
 Byrne v. Lyle, 502, 509 
 
 C 
 
 Cabaness v. Matthews, 33 
 
 Cabell's Ex'ors v. Kolaerts' Adm'r, 
 
 15, 24 
 Cabell & McGuire v. So. Mut. Ins. 
 
 Co., 1217 
 
 Cadbury v. Smith, 121 
 
 Cadman v. Peters, 992 
 
 Cahill V. Pintony, 791 
 
 Cahoon v. McCulloch, 837 
 
 Cain V. Cox, 79, 948, 1037 
 
 Cairns v. Chaubert, 770 
 
 Gales V. Miller et al, 802, 1029 
 
 Calhoun v. Baird, 137 
 
 Calhoun v. Hays, 309, 803 
 
INDEX TO CASES CITED. 
 
 Calhoun v. WiUiams, 961, 962, 970 
 
 California Bank v. Kennedy, 1231 
 
 Calkins v. Lockwood, 1011 
 
 Call i;. BuflSn, 742, 745 
 
 Call V. Scott, 198 
 
 Callaghan v. Kippers, 46 
 
 Callahan v. Linthicum, 959 
 
 Callahan v. Young, 1004 
 
 Callaway v. Alexander, 
 
 92, 285, 358, 841, 1183 
 Callaway v. Harding, 130, 140 
 
 Callaway's Ex" or v. Price's Adm'r, 
 
 &c., 488, 721 
 
 Callen v. Thompson, 567 
 
 Callender v. Marsh, 465 
 
 CalUs V. Waddy, 121 
 
 Calloway v. Dinsmore, 427 
 
 Calloway, &c. v. Tate, 686 
 
 Calvo V. Davies, 488 
 
 Calwell's Ex' or v. Prindle's Adm'r, 86 
 Camden & Co. v. Hiteshew, 1102 
 
 Camen v. McKoherts, 840, 841 
 
 Cameron v. The Justices, 722 
 
 Cammack v. Soran et al, 
 
 579, 653, 668, 1036, 1038 
 Camp ti. Bostwick, 127 
 
 Camp V. Bruce, 1175 
 
 Camp V. Grant, 955 
 
 Campbell's v. Bowen's Adm'r, 192, 1222 
 Campbell v. Bowles' Adm'r, 
 
 265, 276, 346, 356, 358, 359, 
 
 428, 556, 558, 1100, 1123 
 
 Campbell v. Brackenridge, 1038 
 
 Campbell's Ex'orji. Campbell's Ex' or, 
 
 135, 358, 359, 360, 729, 
 
 831, 873, 1262, 1263 
 
 Campbell v. Holt, 89 
 
 Campbell v. Lynch et als, 421 
 
 Campbell & Co. v. Nonpariel F. B. 
 
 & K. Co., _ 1047, 1064, 1065 
 
 Campbell v. Price, 359 
 
 Campbell v. Railroad, 496 
 
 Campbell v. Smith, 1215 
 
 Campbell's Adm'r v. White, Trus- 
 tee, 294, 764 
 Campbell v. Whitson, 580 
 Campbell and Wife v. Winston, &c., 686 
 Campion v. Colton, 550 
 Canada v. Barksdale, 15, 28 
 Canal Co. v. Clark, 468 
 Candee v. Lord, 892 
 Canfield v. Monger, 560 
 Cannon v. WeUford, 216 
 Canter v. The Am. & O. Ins. Co., 1222 
 Cantey v. Blair, 30 
 Cape Sable Co.'s Case, 861 
 Capeheart v. Dowery, 627, 658, 1185 
 Capeheart's Ex' or, &c. v. Hale, 274 
 Capel II. Butler, 29 
 Caperton et al v. Gregory et als, 137, 305 
 
 Caperton v. Landcraft, 502 
 
 Caperton v. McCorkle, 668 
 
 Capron v. Van Noorden, 70, 260 
 
 Carberry v. W. Va. & P. E. E. Co., 382 
 Cardwell v. Allan, Trustee, &e., 
 
 1022, 1249, 1262 
 Cardwell v. Kelly, 79 
 
 Carey v. Coffee S. M. Co., 266 
 
 Carhart v. Harshaw, 559, 581 
 
 Carll V. Hart, 86 
 
 Carlton et al v. King, 575 
 
 Carwell v. Wilhelm, 1188 
 
 Carneal v. Banks, 814 
 
 Carpenter v. Carpenter, 331, 714 
 
 Carper v. Hawkins, 353, 528 
 
 Carper v. McDowell, 1026 
 
 Carr v. Carr, 329, 336, 1176, 1177 
 
 Carr's Adm'r v. Chapman's Legatees, 
 
 97, 98, 125 
 Carrington et als v. Didier, Norvell 
 
 & Co., 622, 1088 
 
 Carrington et al v. Otis et al, 70 
 
 Carpenter v. Carpenter, 714 
 
 Carpenter v. The P. W. Ins. Co., 959 
 Carroll v. Bosely, 749 
 
 Carroll v. Brown, 67 
 
 Carroll v. Johnston, 1038 
 
 Carrothers v. JBoard of Education, 36 
 Carruthers v. Lexington, 93 
 
 Carskadon v. Miake, 267 
 
 Carson v. Akers, 623 
 
 Carter v. AUan et als, 354, 355, 358, 
 359, 397, 591, 1038, 1060 
 Carter v. Campbell, 908 
 
 Carter v. Carter, 372, 608, 910 
 
 Carter's Ex' or v. Carter, 870, 888 
 
 Carter V. Carriger's Adm'r, 919 
 
 Carter's Ex' or u. Currie, 216 
 
 Carter's Ex' or v. Cutting and Wife, 
 
 685, 721, 771 
 Carter v. Dulaney, 726, 729 
 
 Carter v. Edmonds, 682, 763, 805 
 
 Carter v. Hampton, 287 
 
 Carter v. Hough, &c., 872 
 
 Carter v. Jones, 343 
 
 Carter, &c. v. Harris, 199 
 
 Carter v. Eobinett, 1044, 1046 
 
 Carter, Trustee, &c. v. McArtor et als, 98 
 Carteret v. Paschal, 11 
 
 Cartinge v. Eaymond, 435, 836, 871 
 Cartwright v. Godfrey, 808 
 
 Caruther's Adm'r v. Trustees of Lex- 
 ington, 93, 98, 125 
 Carow V. Kelly, 702 
 Cary v. Moore, 1053 
 Case, Eeceiver, v. Beauregard, 535 
 Case V. Fishback, 61 
 Case V. Wooley, 1055 
 Caskie v. Harrison, 712, 722, 724, 749 
 Casey v. Cavaroc, 76, 1073 
 
XLII 
 
 INDEX TO CASES CITED. 
 
 Cassamajor v. Strode, 170 
 
 Cassell V. Butler, 489 
 
 Cassell V. Carroll, 11 
 
 Castleman's Adm'r 1). Dorsey, 92 
 
 Castleman v. Veitch, 369 
 
 Casto V. Greer, 578 
 
 Casto V. Kintzel, 310 
 
 Caston V. Dvmlap, 488 
 
 Castro V. United States, 1248 
 
 Cates V. Allen, 545 
 
 Catt 11. Knabe Mfg. Co., 563, 564, 567 
 Cathcart et al v. Bobinaon, 574 
 
 Catlin V. Valentine, 464 
 
 Cauthom v. Courtney, 595 
 
 Cavendish v. Fleming, 715, 716, 770 
 Cavender v. Cavender, 421 
 
 Central City Brick Co. v. N. & W. 
 
 E. E. Co., 1081 
 
 Central Branch E. E. Co. v. Fritz, 941 
 Central E. E. & B. Co. ■;;. Pettus, 
 
 292, 1070 
 Central Trust Co. v. Grant Locomo- 
 tive Works, 1237 
 Chahoon's Case, 376, 377, 657, 755 
 Chamberlayne v. Temple, 
 
 164, 545, 549, 576, 866, 867, 869, 919 
 Chambers v. Chalmers, 276, 433 
 
 Chambers v. Sallie, 548 
 
 Champion, &c. v. Brown, 228 
 
 Chamley v. Lord Dunsany, 848 
 
 Champion v. MiUer, 29 
 
 Chancellor v. Spencer, 217 
 
 Chancey v. May, 181 
 
 Chancy v. Saunders, 794 
 
 Chapin v. Lake, 334 
 
 Chapin v. James, 55 
 
 Chapman v. Chapman, 790, 1031 
 
 Chapman v. Emery, 105 
 
 Chapman v. Hamond, 979 
 
 Chapman v. Harrison, 15 
 
 Chapman v. P. & S. E. E. Co., 
 
 144, 232, 705 
 Chapman v. Price, 1097, 1116, 1120 
 Chapman's Adm'r v. Shepherd's 
 Adm'r et als, 295, 700, 703, 715, 
 
 716, 731, 732, 736, 763, 764, 869 
 Chapman v. Tanner, 987 
 
 Chapman v. Turner, 993, 996 
 
 Chapman v. "Washington, 461, 470 
 
 Chappel V. Chappel, 258 
 
 Chappel V. Trent, 608 
 
 Chappell V. Eobertson, 239 
 
 Chapsky v. Wood, 340 
 
 Charles v. Charles, 1097 
 
 Charles Eiver Bridge v. Warren 
 
 Bridge, 181, 465 
 
 Charleston L. & M. Co. v. Brock- 
 
 meyer, 1193 
 
 Charlton v. Gardner, 568 
 
 Charlton v. TJnis, 799 
 
 Charnock v. Disc't Township, 1080 
 
 Charron v. Boswell, 470 
 
 Chase's, H. K. Case, 513, 515, 516, 831 
 Chase v. Mauhardt, 439 
 
 Chase v. Wingate, 943, 960 
 
 Chatham v. Bradford, 1052 
 
 Cheatham v. Cheatham, 1116 
 
 Cheatham v. Hatcher et als, 
 
 606, 607, 608 
 Cheesborough, &c. v. Millard, &c., 489 
 Cheever v. Wilson, 154 
 
 Chegary v. Scofield, 507, 508 
 
 Cheongwo v. Jones, 659 
 
 Chesapeake, &c. Ass'n v. Coleman, 560 
 Chesapeake Bank v. First National 
 
 Bank, 621 
 
 Chesapeake & O. E. E. Co. ti. Huse 
 
 et al, 448, 453 
 
 Chesapeake & O. E. E. Co. v. Miller, 482 
 Chesapeake & O. E. E. Co. v. Paine 
 
 & Co., 613, 621, 636, 642, 650 
 
 Chesapeake & O. E. E. Co. v. Pat- 
 ton, 448, 452, 497 
 Chess V. Chess, 1045 
 Chesson v. Chesson, 127 
 Chew V. Barnett, 1038 
 Chicago Dollar Directory Co. v. Chi- 
 cago Directory Co., 1242 
 Chicago & A. O. & M. Co. v. U. S. 
 
 Pet. Co., 514 
 
 Chicago & Vincennes E. E. Co. v. 
 
 Fosdick, 859 
 
 Chicago V. Wall, 482 
 
 Chichester's Ex'x v. Vass' Adm'r, 
 
 194, 324 
 Chichesty v. Vass, 206 
 
 Childerson v. Hammond, 29 
 
 Childs V. Hena, 550, 572 
 
 Childress et als v. Morris, 324, 325 
 
 Chilicothe Oil Co. v. Hall et als, 190 
 ChUhowie Iron Co. v. Gardiner, 1116 
 Chilton V. Braiden's Adm'x, 989 
 
 Chilton V. Bobbins, 490 
 
 Chinn v. Heale, 324, 406 
 
 Cholmondeley v. Lord Clinton, 
 
 81, 120, 122 
 Chowning v. Cox et al, 221, 991 
 
 Chrisman' a Adm' i v. Harman et als, 
 
 9, 68, 382, 401, 402, 920, 1143 
 Christian v. Cabell, 1151 
 
 Christian & Gunn v. Keen, 
 
 952, 1103, 1113, 1143 
 Christian v. Yancey, 1007 
 
 Christian Union v. Yount, 620 
 
 Christian v. Vance, 345 
 
 Christian v. Worsham, 701, 702 
 
 Christie v. Maiden, 482 
 
 Christmas v. Euasell, 155, 285 
 
 Christy, Ex parte, 56 
 
 Church V. Gilman, 1045 
 
tNDBX TO OASES CITEl). 
 
 Church V. Griffith, 1081 
 
 Cincinnati, &c. E. E. Co. v. Mc- 
 
 Keen, 1234 
 
 Girode v. Buchanan's Adm'r, 
 
 625, 630, 632, 667, 1088 
 Citizens Bank v. Cannon, 1252 
 
 Citizens Nat'l Bank v. Culver, 1071 
 
 Citizens Nat'l Bank v. Manson, 292 
 Claflin V. Carpenter, 1016 
 
 Claflm V. Steenhock, &c, 613, 657 
 
 Claiborne v. Gross et als, 
 
 211, 547, 861, 1218 
 Clapp V. EI7, 29 
 
 Clarke v. Bowman's Ei'ors, 100, 120 
 Clarke v. Coit, 29 
 
 Clarke D. Connecticut Peat Co., 671 
 aarke et al v. Curtis, 647, 1136 
 
 aarke's Adm'r v. Day, 868 
 
 Clark V. DunnaTant, 1025 
 
 Clarke v. Hardgrove, 473, 481 
 
 aarke v. Long, 141, 223, 235, 238 
 
 Clarke v. McDade, 1231 
 
 aarke v. Phelps, &c., 367 
 
 aark V. Taylor, 29 
 
 Clarke V. Tinsleys Adm'r, 417 
 
 aark V. Brown, 1219, 1220 
 
 Clark V. aark, 468, 723 
 
 Clark V. French, 562, 567 
 
 Clark V. Hyman, 1010 
 
 aark V. KiUian, 356 
 
 aark V. Moore, Trustee, 1143, 1145 
 aark 41. Munyan, 1007 
 
 aark V. Eeybum, 197, 1160 
 
 Clark V. Sickler, 488 
 
 Clark V. Shanklin, 1164 
 
 aark V. State, 724 
 
 aark D. Trust Co., 474,1177 
 
 aark V. Ward, 
 
 559, 617, 618, 632, 670, 1030, 1031 
 aark V. WeUs, 1002 
 
 Clarkson and Wife v. DePeyster, 236 
 Clarkson v. Doddridge, 1165 
 
 aarkson v. Garland, 585 
 
 aarkson v. Eead et als, 170, 222, 1198 
 aason V. Morris, 836, 871 
 
 aavering v. Clavering, 105 
 
 aaycomb v. aaycomb, 765 
 
 aay V. Neilson, 632 
 
 aay V. Walter, 549, 550, 551 
 
 aayton & Tyson v. Henly, 239 
 
 aayton v. Johnson, 1006 
 
 aaytor v. Anthony, 189, 511, 561, 945 
 aeaton v. Chambliss, 401 
 
 aeaver v. Matthews, 275 
 
 Cleggett V. Kittle et al, 425, 441 
 
 aemens v. aemens, 562 
 
 aements v. Berry, 922, 1066 
 
 Clements v. Moore, 443 
 
 aeveland v. Cruiston, 401 
 
 aevinger v. Dawson, 1208 
 
 aevinger et al v. Miller, 7, 1144, 1145 
 Clifton V. Haigs' Ex'ors, 142 
 
 Clifton V. Murray, 607 
 
 Clinch Eiver M. Co. v. Harrison, 
 
 421, 422, 627 
 aine's Heirs v. Catron, 5], 591, 1189 
 Clinton v. Myers, 460 
 
 Clough, &c. V. Thompson, 200, 201, 945 
 aower V. Eawlings, 983, 984 
 
 Coal Riv. Nav. Co. v. Webb, 425 
 
 Coale V. Chase, 439 
 
 Coalter's Ex' or v. Bryan and Wife, 
 
 234, 432, 603, 604, 895 
 Coalter v. Coalter, 125 
 
 Coalter v. Hunter, 456, 464 
 
 Coates V. Ballard, 1205 
 
 Coats V. Clarence E. Co. , 465 
 
 Cobb V. GUchrist, 1259 
 
 Coburn v. Bickering, 567 
 
 Cochran v. Guild, 1073 
 
 Cochran v. Lynch, 707 
 
 Cochran v. Paris et al, 
 
 563, 570, 943, 1006, 1016 
 Cockburn v. Thompson, 142, 181, 229 
 Cocke's Adm'r v. Gilpin, 
 
 134, 222, 813, 817, 822, 1197 
 Cocke V. Harrison, &c., 681, 866 
 
 Cocke V. Haxall's Ex' or, 1044 
 
 Cocke et als v. Minor et als, 
 
 421, 441, 727, 1217, 1218, 1260 
 Cocke V. Upshaw, 891 
 
 Cockey v. Carroll, 656 
 
 Cocks V. Izzard, 1183 
 
 Coda V. Thompson, 630 
 
 Codwise, &c. v. Gelston, 363 
 
 Cody V. Conly, 605 
 
 Coffee V. Black, 341 
 
 Coffinan & Bru% v. Miller & Co., 979 
 Cofibaan v. Cofinian, 992, 1065 
 
 Coffinan et als v. Moore's Ex'ors, 
 
 488, 489 
 Coffinan v. Niswander, 948, 949 
 
 Coffinan v. Sangston et als, 
 
 65, 67, 166, 211, 343, 698, 795 
 CoghiU V. Boyd, 684, 738 
 
 Coger V. Coger; 222 
 
 Cohen v. Myers, 520 
 
 Cohen v. Virginia, 1240 
 
 Cohn V. Ward, 550, 572 
 
 Coken v. Brige, 462 
 
 Colclough V. Sterum et al, 222 
 
 Cole V. Berry, 1005 
 
 Cole V. Cunningham, 652 
 
 Cole V. Superior Court, 426 
 
 Cole's Committee v. Cole's Adm'r, 
 
 194, 274, 590, 698 
 Coles V. Kelsey, 84 
 
 Coles' Adm'r v. BaUard, 86, 92, 93, 136 
 Cole's Adm'r v. McEae, 189, 474, 538 
 Cole V. Sands, 500 
 
XLIV 
 
 INDEX TO CASES CITED. 
 
 Coles V. Hurt, 441, 442, 110, 1117 
 
 Coles V. Miller, 1028 
 
 Coles V. Withers et als, 
 
 124, 979, 987, 988, 1148, 1153 
 Coleman's Adm'x «. Anderson, 12 
 
 Coleman v. Cocke, 397, 545, 578, 948 
 Coleman v. Lyne's Ex' or, 
 
 94, 408, 415, 416, 417, 421, 441, 442 
 Coleman -o. Moody, 789 
 
 Coleman v. Waters et als, 156 
 
 Colerick v. Hooper, 172 
 
 Colgate V. Michigan Lake Shore E. 
 
 E. Co., 542 
 
 Collier v. Mann, 720 
 
 CoUier V. Whipple, 1171, 1184 
 
 Collins V. Blantern, 79 
 
 Collins V. Butler, 28 
 
 Collins V. Champs, 930 
 
 Collins et al v. Jones, 
 
 15, 26, 72, 906, 912, 950 
 CoUins 11. Loffius, 232, 846 
 
 Collins V. Sutton, 
 
 69, 260, 265, 324, 460, 461 
 Collinson t). Lowry & Co. , 794 
 
 Colquhoun v. Atkinson, 1054 
 
 Colt V. Lesnier, 141, 240 
 
 Colton, &c. V. Boss, 282 
 
 Colton V. Smith, 214, 307 
 
 Coltrain v. Causey, 201 
 
 Columbia Ace. Ins. Co. r. Eockey, 476 
 Colvert V. Milstead, 82 
 
 Colvin, E., In re, 515, 521, 523, 540, 542 
 Colvin V. Emerson, 64 
 
 Colvin V. Eeed, 153 
 
 Coman v. Thompson, 1016 
 
 Combs V. Candler, 1144 
 
 Combs V. Young, 779, 780 
 
 Comly V. Waters, 893 
 
 Comjmonwealth v. Adicks, 340 
 
 Commonwealth v. Ashlin, 1072 
 
 Commonwealth v. Chaffin, 1218 
 
 Commonwealth v. Drake, 270 
 
 Commonwealth v. Ford, 966, 1156 
 
 Commonwealth v. Hammond, 340 
 
 Commonwealth v. Holmes, 36, 489 
 
 Commonwealth v. Pauly, 357 
 
 Commonwealth v. Phoenix Bank, 29 
 Commonwealth v. Eicks, 232, 846, 870 
 Commonwealth v. Seldon, 1045, 1054 
 Commissioners v. Little, 595 
 
 Compton V. Tabor, 1154 
 
 Comstock V. Adams, 331 
 
 Comstook V. Eayford, 271 
 
 Conant v. Burnham, 335 
 
 Conklin i'. Hinds, 1072 
 
 Conley v. Nailor, 424 
 
 Conn. Mut. Ins. Co. v. Duerson, 136 
 Conn. V. Penn., 240 
 
 Conn. M. L. Ins. Co. i). Shaeffer, 378 
 Conally v. Conally, 359, 360 
 
 Conner v. Banks, 
 
 986 
 
 Conner v. Penn, 
 
 350 
 
 Connor v. Parker, 
 
 627 
 
 Connor ti. Smith, 
 
 625 
 
 Connover v. Warren, 
 
 984 
 
 Connolly d. Connolly, 602, 603, 604 
 
 Conqueror, The, 1235 
 
 Conrad Lieman, In re, 1038, 1054 
 Conrad v. Atlantic Ins. Co., 920, 1020 
 
 Conrad v. Buck, 390, 445 
 
 Conrad v. Hai'rison, 975 
 
 Conrad !'. Mining Co., 935 
 
 Consequa i'. Fanning, 362, 684, 870 
 
 (-Jontee v. Dawson, 441 
 
 Conway v. Alexander, 993, 995, 996 
 
 Cook V. Bondurant, 1215 
 
 Cook V. Buinley, 1257 
 
 Cook V. Corthell, 1017 
 Cook V. Dorsey, 
 
 237, 239, 274, 279, 367, 370, 372 
 
 Cook V. Mancius, 238, 364 
 
 Cooke V. Piles, 1207, 1222 
 Coombs V. Jordan, 
 
 920, 937, 938, 943, 949, 1188, 1196 
 
 Coons V. Coons, 593 
 
 Cooper V. Cooper, 714, 724 
 
 Cooper V, Daugherty, 1068, 1168 
 
 Cooper D. Galbraith, 618 
 
 Cooper V. Hepburn, 590, 762 
 
 Cooper i). Eeynolds, 51, 151, 648 
 
 Corbin v. Adams, 592, 598, 600 
 
 Corbin ii. Enimerson, 170 
 
 Cbrtin v. Gould, 468 
 
 Corbin v. Mills, 295, 419, 682, 763 
 
 Core V. Bell, 456 
 
 Core V. Cunningham, 428, 547 
 
 Cordeman v. Smith, 1010 
 
 Cordova v. Hord, 984, 1142 
 
 Core V. Cunningham, 428, 547 
 
 Corey v. Moore, 358 
 
 Corn Exchange ti. Babcock, 1102 
 
 Cornell v. Hartley, 381 
 
 Corning v. McCullough, 186 
 
 Cornish v. Tanner, 29 
 
 Corr V. I'orter, 974 
 
 Corrothers v. Board, 482 
 
 Corrothers v. Harris, 474 
 
 Corrothers v. Sargent, 209, 401 
 
 Corteylon v. Lansing, 1073 
 
 Cortleyen v. Hathaway, 613 
 
 Coster V. Davies, 986 
 
 Coster V. Murray, 388 
 
 Cotman v. Eogers, 125 
 
 Cotten V. Willoughby, 1016 
 
 Cottom 1'- Cottom, 920 
 
 Cottrell V. Vamum, 649, 660, 667 
 
 Couch V. Couch, 608 
 
 Couch, &c. V. Ulster & O. Turnpike 
 
 Co., 465 
 
 County of Armstrong d. Brinton, 28 
 
INDEX TO CASES CITED. 
 
 XXV 
 
 Coupland v. Anderson, 594, 596 
 
 Course v. Stead, &c., 1218, 1227 
 
 Courtney, Adm'r, v. Hopkins, 1102 
 
 Couse V. Boyles, 1187 
 
 Coutts V. Greenhow, 650 
 
 Coutts V. Walker, 642, 917, 948, 951 
 Covenhoven v. Shuler, 236, 419 
 
 Coville & Garber v. Gilman, 58 
 
 Cowardin v. Anderson, 
 
 920, 929, 974, 1065 
 Cowardin et als v. Universal Life 
 
 Ins. Co., 620 
 
 Cowdrey et als v. Galveston, 527 
 
 Cowper V. Cowper, 4 
 
 Coi V. Carr, 1214 
 
 Cox V. Cox, 259, 952 
 
 Cox V. Crockett, 12 
 
 Cox V. Douglass, 498 
 
 Cox V. Halstead, 1172 
 
 Cox V. McMullin, 309, 310 
 
 Cox V. Eomine, 1038 
 
 Cox et als v. Thomas' Adm'x, 51 
 
 Cox V. Wilder, 559 
 
 Crabteee v. Building Ass'n, 433 
 
 Crafts V. Dexter, 17 
 
 Craig, &c. v. Ankeney, 490 
 
 Craig V. Dale, 943, 960 
 
 Craig V. Hoge, 
 
 261, 288, 293, 390, 548, 1137 
 Craig V. Sebrell, 
 
 151, 253, 415, 416, 814, 836, 1060 
 Craig V. WUliams, 615, 1217, 1218 
 
 Cralle v. Cralle, 
 
 322, 334, 336, 342, 698, 982, 1209 
 Cralle et als v. Meene et als, 780 
 
 Crane v. Eeeder, 82 
 
 Cranston v. Crane, 1163 
 
 Crapo V. Kelly, 523, 671 
 
 Crawford v. Clute, 659 
 
 Crawford v. Fickey, 524 
 
 Crawford v. Halstead & Putnam, 783 
 Crawford v. Jarrett's Adm'r, 845, 881 
 Crawford v. Kirksey, 557, 575 
 
 Crawford et al v. McDaniel, 222, 1141 
 Crawford v. Millspaugh, 395 
 
 Crawford v. Neal, 572 
 
 Crawford's Ex' or v. Patterson, 91, 97 
 Crawford v. Shover et als, 751, 754 
 
 Crawford v. Smith, 354 
 
 Crawford v. Thurmond et al, 37, 470 
 Crawford v. WeUer, 
 
 1156, 1160, 1182, 1183, 1203 
 Crawford v. Wilson, 618 
 
 Creath v. Sims, 28, 92 
 
 Crebs v. Jones, 899 
 
 Credit Co., Ltd., v. Arkansas Ry. Co., 
 
 1237, 1238, 1248 
 Crenshaw's Adm'r v. Clarke et als, 
 
 433, 434 
 Crenshaw v. Seigfried,60, 1157, 1158, 1159 
 
 Crenshaw v. Slate Eiver Co., 
 
 181, 463, 465 
 Cresap v. McLean et als, 81, 100 
 
 Creswick v. Creswick, 321 
 
 Crews V. Pendleton, , 944, ngg 
 
 Crickard's Ex' or v. Crickord's Leg- 
 atees, 135, 353, 729 
 Crickard v. Crouch, 234, 265, 267 
 Crigler's Committee v. Alexander, 
 
 735, 738, 765 
 Crim V. Phillippi, 482 
 
 Crislip V. Cain, 698 
 
 Crist V. Brindle, 30 
 
 Crist V. Crist, 68 
 
 Crocket v. Lee, 814 
 
 Crockett v. Doriot, 1092, 1098, 1125 
 Crockett v. Sexton, 705, 1176, 1192 
 
 Croft V. Hanover F. Lis. Co., 1258 
 
 Croft V. Lindsey, 714 
 
 Cromer v. Cromer, 8, 763, 1145, 1146 
 Cromwell v. Clay, 1091 
 
 Cromwell v. County of Sac, 881 
 
 Cronie v. Hart, 1153 
 
 Cronise v. Carper, 237 
 
 Cronister v. Weiser, 1201 
 
 Cropper v. Burtons, 
 
 421, 545, 548, 809, 859 
 Crosby v. Berger, 376 
 
 Cross V. De Valle, 69, 319 
 
 Cross V. Evans, 1234 
 
 Cross V. Huntly, 467 
 
 Cross V. Marston, 934 
 
 Croton Turnpike Co. v. Eyders, 465 
 Crouch V. Carrier, 567 
 
 Crouch V. Dabney, 1047 
 
 Crouch V. Davis, 715 
 
 Croughton v. Duval, 300, 488 
 
 Crumlishi). S. V. E. E. Co., 160, 186, 
 212, 271, 292, 362, 526, 528 
 Crumlish v. F. T. & S. D. Co., 184, 493 
 Crump V. Commonwealth, 966 
 
 Crutoher v. Crutcher, 245 
 
 Cufft>. Platell, 236 
 
 Culbertson v. Stevens, 614 
 
 Culkin V. Lockwood, 1014 
 
 Cullan V. May, , 1248 
 
 Cullom V. Branch Bank, 482 
 
 Cullum V. Emanuel, 1074, 1144 
 
 Cumming v. Gumming, 332 
 
 Cummings v. Jones, 1236 
 
 Cummin'gs v. Norris, 30 
 
 Cummins u Simpson, 756 
 
 Cunningham v. Barnes, 341 
 
 Cunningham v. Cunningham, 
 
 748, 757, 759, 1326 
 Cunningham v. Freeborn, 420 
 
 Cunningham v. Floumoy, 870 
 
 Cunningham v. Hedrick, 
 
 196, 318, 322, 425, 441 
 Cunningham v. Mitchell, 251 
 
INDEX TO CASES CITED. 
 
 Cunningham v. Millner, 
 
 Cunningham v. Patterson, 
 
 Cnnningham v. Smithson, 
 
 Cuny V. Hale, 
 
 Curan v. Colbert, 
 
 Curd V. Miller, 
 
 Curd V. Wallace, 
 
 Cureton v. Mills, 
 
 Currie v. Davison, 
 
 Carrie v. Donald, 
 
 Currier v. Sutherland, 548, 559, 
 
 Currin v. Spraull, 
 
 Curry v. Hale, 
 
 Curry v. Hill, 
 
 Curry v. Mayor, 
 
 Curtan & Comer v. Chalkley, 
 
 Curtis, In re, 
 
 Curtis V. Curtis, 340, 
 
 Curtis V. Hoyt, 
 
 Curtis V. Thompson, 
 
 Cushing's Appeal, 
 
 Custis V. Snead, 
 
 Cutting, Ex parte. 
 
 Cuttings V. Carter, 
 
 Cuyler v. Eogert, 
 
 Cuyler ii. Moreland, 
 
 1187 
 237 
 175 
 482 
 324 
 567 
 179 
 161 
 405 
 
 1025 
 
 962, 965 
 
 305 
 
 636 
 
 473 
 
 1080 
 
 1006 
 
 240 
 
 919, 920 
 
 935 
 
 1177 
 
 955 
 
 215, 309 
 
 1229 
 
 456, 458 
 
 409 
 
 167 
 
 67 
 
 Dabbs V. Nugent, 
 Dabney v. Dabney, 86 
 
 Dabney's Ex'or )>. Dabney's Adm'r, 87 
 Dabney v. Green, 993 
 
 Dabney v. Kennedy, 551, 579, 1034 
 Dabney d. Preston, 173, 212, 236, 239 
 
 Da Costa v. Da Costa, 
 
 193 
 
 Dade v. Irwine, 
 
 32 
 
 Dade v. Madison, 
 
 435, 436 
 
 Dages 11. Lee, 
 
 1102 
 
 Daggett V. Daggett, 
 
 337 
 
 DaUy V. Warren, 
 
 171, 703 
 
 Dainese v. Kendall, 
 
 821 
 
 Daingerfield v. Claibourne, 
 
 415, 784 
 
 Daingerfield v. Smith, 
 
 
 196, 833, 919, 1084, 
 
 1153, 1155 
 
 Dakin v. Demming, 
 
 127 
 
 Dalby v. Price, 
 
 784 
 
 Dale V. Cooke, 
 
 24 
 
 Dale V. Kosevelt, 
 
 430, 488 
 
 Dalton V. Carr, 
 
 321 
 
 Daly V. Maitland, 
 
 1071 
 
 Dance v. Seaman, 
 
 
 562, 563, 570, 943, 
 
 1006, 1016 
 
 Dandridge v. Minge, 
 
 137 
 
 Danforth v. Beattie, 
 
 1006 
 
 Danforth v. Woods, 
 
 226, 952 
 
 Dangerfield v. Eootes, 
 
 25 
 
 Dangerfleld v. Smith, 
 
 356, 427 
 
 Daniel v. Daniel, 
 
 9 
 
 Daniels v. Leitch, 
 
 1185, 1186 
 
 Daniels v. Pond, 
 
 943, 960 
 
 Danklessen v. Braynard, 
 
 172 
 
 Danner v. Frederick, 
 
 35 
 
 Dannon v. Hull, 
 
 226 
 
 Danville Bank v. Waddill, 
 
 136 
 
 Darby v. Gilligan, 
 
 686 
 
 Darby v. Wayrich, 
 
 965 
 
 Darcy v. Ketchum, 
 
 155 
 
 Dargan v. Waddill, 
 
 466 
 
 Darling v. Baltimore City, 
 
 1080 
 
 Darling v. Wilson, 
 
 1016 
 
 Darnall v. Smith, 
 
 
 1092, 1103, 
 
 1104, 1122 
 
 Darraugh v. Blackford, 
 
 833 
 
 Darst V. Brockway, 
 
 467 
 
 Davenport v. Dows, 
 
 185 
 
 Davenport v. Foulke, 
 
 565 
 
 Davidson v. Meyers, 
 
 918 
 
 Davidson v. Pope, 
 
 738, 764 
 
 Davidson v. Boot, 
 
 1060 
 
 Davies v. Hughes, 
 
 1173 
 
 Davis V. Alvord, 
 
 1081 
 
 Davis V. Beazely, 
 
 1028 
 
 Davis V. Bigler, 
 
 567 
 
 Davis V. Brown, 
 
 518, 881 
 
 Davis V. Bonny, 291, 363, 522; 543 
 
 Davis V. Calvert, 
 
 609 
 
 Davis V. Chapman, 161, 292, 513, 716 
 
 Davis V. Christian, 
 
 955, 956 
 
 Davis V. Commonwealth, 
 
 634, 635 
 
 Davis V. Crews, 
 
 823 
 
 Davis V. Davis, 66, 417, 554, 556 
 
 Davis' Adm' r v. Davis, 
 
 67, 554 
 
 Davis' Widow v. Davis, 
 
 556, 974 
 
 Davis V. Deming, 
 
 22 
 
 Davis V. French, 
 
 950 
 
 Davis V. Gray, 
 
 56, 525 
 
 Davis V, Harkness, 
 
 754 
 
 Davis V. Harman, 
 
 750, 1205 
 
 Davis V. Johnormot, 
 
 589 
 
 Davis V. MUbum, 
 
 30 
 
 Davis V. Morriss, 52, 135, 295. 390 
 
 Davis V. Payne, 
 
 1082 
 
 Davis V. Eowe, 
 
 777 
 
 Davis V. Sawyer, 
 
 465 
 
 Davis V. Sims, 1029, 1036, 
 
 1038, 1052 
 
 Davis V. Snead, 
 
 523 
 
 Davis V. Statts, 
 
 1110 
 
 Davis V. Swanson, 
 
 546 
 
 Davis V. Tebbs, 
 
 304 
 
 Davis V. Tillston, 
 
 30 
 
 Davis V. Turner, 
 
 567, 1031 
 
 Davison v. Schuler, 
 
 583 
 
 Davison v. Waite, 
 
 997, 1000 
 
 Dawson v. Coles, 
 
 560 
 
 ■Dawson v. Lawrence, 
 
 309 
 
 Dawson v. St. Paul Ins. Co., 
 
 463 
 
 Dawson v. Thurston, 
 
 1045 
 
 Day V. Cummings, 
 
 29, 68 
 
INDEX TO CASES CITED. 
 
 Day V. Hale et als, 806, 813, 985 
 
 Day V. Martin, 16, 28 
 
 Day V. Washburn, 545 
 
 Day V. Woodworth, 1257 
 
 Day V. Zimmerman, 661 
 
 Dayton v. Lash, 1248 
 
 Deacon v. Smith, 54 
 
 Dean v. Cannon, 874 
 
 Deaderiok v. Cantrell, 738 
 
 Dean v. Nelson, 830, 841 
 
 Dearborn v. Mathes, 161 
 
 Dearman v. Dearman, 559 
 
 Deaver v. Irvin, 30 
 
 Daver v. Savage, 1007 
 
 Debs, In re, 13 
 
 Decator v. Mitchell, 1218 
 
 Deeks v. Strutt, 68 
 
 Deering v. Boyle, 1103 
 
 Deering v. Cobb, 567 
 Deering v. Kerfoot, 
 
 118, 956, 1035, 1086 
 
 Deas V. Thome, &c., 201, 220 
 
 Deckard v. Case, 957 
 
 Decker, &c. v. Miller, 715 
 
 DeEnde, &c. v. Wilkinson, 852, 927 
 
 DeFarges v. Eyland, 572 
 
 Degraffenreid v. Donald & Co., 508 
 
 Degraffenreid v. Scruggs, 940 
 
 Dellinger v. Foltz, 288, 1000 
 
 Delaplaine v. Armstrong, 613 
 Delaplaine & Son v. Wilkinson & 
 
 Co., 1033 
 
 Delmas v. Margo, 43 
 
 Deloney v. Hutcheson, 439 
 Deloraine v. Brown, 88, 91, 92, 95, 97 
 
 Delphin City v. Bowen, 482 
 
 Del VaUe v. Harrison, 1236 
 
 Demarest v. Wyncoop et als, 137 
 
 Den V. Frew, 1201 
 
 Deneale v. Stump's Ex' or, 1084 
 DeneufvUle'sAdm'r J). Travis, 1262 
 
 Dennet v. Hopkinson, 780 
 
 Denning v. Smith, 398 
 
 Derby v. Weyrich, 559 
 
 Derbyshire v. Jones, 318, 319 
 
 Derr v. Carmon, 617 
 
 DeTreville v. Ellis, 695 
 
 Detroit V. Dean, 186 
 
 Devall V. Devall, &c., 337 
 
 Devaughan v. Devaughan, 1190 
 
 Devers v. Boss, 490 
 
 Devoucher v. Newenham, 303 
 Devries & Co. v. Johnson & Wolfe, 
 
 301, 577, 614, 861, 1217 
 
 Dewey v. Bromwell, 998 
 
 Dewing v. Pendicarisco, 730 
 
 DeWolf u. Johnson, 201 
 
 Dexter v. Arnold, 127 
 
 Dexter v. Harris, 1090 
 
 Dey V. Dunham, 815, 1057 
 
 Dezendorf I). Humphreys, 
 
 1095, 1100, 1102 
 Dial V. Gary, 160 
 
 Dial V. Eeynolds, 268 
 
 Diamond State I. Co. v. Alex. K. 
 
 Earig Co., 135, 353, 359 
 
 Dick V. Eobinson, 821, 1191 
 
 Dickenson v. Davis, 239, 372, 795 
 
 Dickerson v. Davis, 236 
 
 Dickerson v. Tillinghast, 1036 
 
 Dickey v. Gentry, 1202 
 
 Dickey v. Smith, 1209 
 
 Dickinson v. Bankers L. & I. Co., 452 
 Dickinson i;. Central Nat'l Bank, 1077 
 Dickinson v. Clement, 975, 1199 
 
 Dickinson v. Davis, 795 
 
 Dickinson's Adm'r I). Helms, 1204 
 
 Dickinson v. Hoome's Adm'r, 
 
 779, 863, 1151 
 Dickinson's Adm'r u. McCraw, 160 
 
 Dickinson u. Eailroad Co., 
 
 187, 319, 421, 599 
 Dickson v. McCue, 1205 
 
 Dickson v. Miller, 1104 
 
 Didier i'. Patterson, 618 
 
 Diehl V. Marchant, 381, 401 
 
 Diffenderfer v. Fisher, 559 
 
 Diggs V. Brown, 955, 958 
 
 DUlard v. Cent. Va. Iron Co. , 
 
 51, 154, 920 
 Dillard v. Collins, 799 
 
 DiUard I). Dillard, 1113 
 
 Dillard v. Krise, 253, 684, 686, 1154 
 Dillard v. Thomlinson, 716 
 
 Dillon V. Barnard, 368, 1079 
 
 Dilly V. Barnard, 29 
 
 DiUy V. Doig, 267 
 
 Dinges v. Marcum, 353, 358 
 
 Dismal Swamp Co. v. Macauly, 94 
 
 Dittman t). Eep, 466 
 
 Ditson V. Ditson, 153 
 
 Divine v. Mitchum, 954 
 
 Diversy v. Smith, 186 
 
 Divven v. McLaughlin, 1021 
 
 Dixon V. Buehl, 172 
 
 Dixon V. McCue'B Adm'x, 1169, 1194 
 Dixon V. Eamsay, 160 
 
 Doane v. Glenn, 795 
 
 Dobson V. Pearce, 16, 52 
 
 Dobyns v. Waring, 1032, 1065 
 
 Dodson V. Culpepper, 1196 
 
 Dodson V. Simpson, 744, 753 
 
 Dodge V. Cole, 589 
 
 Dodge V. Freedmans Bank, 1000 
 
 Dodge V. Griswold, 901 
 
 Dodge V. Knowles, 1112 
 
 Dodge V. Woolsey, 705 
 
 Doe V. Manning, 105 
 
 Doggett V. Helm, 98 
 
 Doheny v. Atlantic D. Co., 470 
 
INDEX TO CASES CITED. 
 
 Cold's Trustee v. Geiger, 10, 11, 928 
 
 Donaglie v. Tarns, 954 
 Donahue v. Faoklen, 
 
 528, 1168, 1169, 1188 
 
 Donahue v. Prentiss, 29 
 
 Donaldson v. The Bank, 1036 
 
 Donally v. Ginatt, 15, 509, 876 
 
 Donelson v. Taylor, 797 
 
 Doner v. Stauffer, 663 
 Donnell v. King's Heirs, 
 
 398, 402, 403, 409 
 
 Donner v. Morrison, 881 
 Doonan v. Board of Education, 
 
 213, 287 
 
 Doremus v. Walker, 979 
 
 Darr's Adm'r v. Eohr, 55, 156, 686 
 
 Dorsey v. Allen, 466 
 
 Dorsey v. Dorsey, 152, 154, 160 
 
 Dorsey v. Hammond, 202, 1084 
 
 Dorsey v. Beese, 29 
 
 Dos Hermanos, The, 1237 
 
 Doswell V. Anderson, 642 
 Doswell V. Buchanan, 
 
 396, 576, 1032, 1034, 1037, 1041, 
 1043, 1059, 1060 
 
 Doswell V. De la Lanza, 1257 
 
 Doubleday v. Kress, 560 
 
 Doubleday v. Makepeace, 26 
 
 Dougherty's Estate, 1148 
 
 Doughty V. Sommerville, 508 
 
 Douglas V. Land, 1037 
 
 Douglas V. Spoor, 695 
 
 Douglass V. 1 agg, 7 
 
 Douglass V. Hainsville, 482 
 
 Douglass V. McChesney, 808, 892 
 Douglass V. Stephenson, 359, 726, 1205 
 
 Douglass V. Wiggins, 459 
 
 Douglass Mdse. Co. «. Laird, 578 
 
 Douly V. Hays, 1139 
 
 Dower v. Church, 602, 603, 604 
 
 Dowling V. Hudson, 516 
 
 Downman v. Bust, 398 
 
 Dows V. Chicago, 482 
 
 Dows V. McMiohael, 385, 386 
 
 Dow's Adm'r v. Eowe, 86, 137 
 
 Doyle V. Patterson, 600 
 
 Drake v. Lyons, 172 
 
 Draper t). Davis, 1155 
 
 Draper's Ex'ors v. Gorman, 926 
 
 Dreutzer v. Bell, 559 
 
 Drew )'. Hayne, 30 
 
 Drew V. Mason, 1081 
 
 Dromgoole v. Smith, 758 
 
 Drury v. Cross, 1184 
 
 Dryden v. Stephens, 471 
 
 Dubose V. Dubose, 564 
 
 Dudley v. Bosworth, 952 
 
 Dudley v. Warde, 938 
 
 Duckworth v. Duckworth, 28 
 
 Duer V. Willis, 284 
 
 Duerson's Adm'r v. Alsop et als, 
 
 189, 213, 275, 287, 288, 289 
 Duff D. Duff's Ex'ors, 809 
 
 Dufiy & Bolton v. Figgatt, 1214 
 
 Duffield V. Creed, 89 
 
 Dugan !'. Gittings, 550 
 
 Duggan V. Bliss, 569 
 
 Dulanyt). Willis, 547 
 
 Dulint). McCann, 627, 638, 640 
 
 Dumain v. Gwynne, 340 
 
 Dumford v. Degneys, 1173 
 
 Dunbar v. Buck et als, 24 
 
 Dunbar' s Ex' or «. Woodcock' s Ex' or, 
 
 699, 785, 818 
 Duncan v. Darst, 55 
 
 Duncan v. Lyon, 30, 34, 44 
 
 Duncan & Calhoun, Trustees, v. Eail- 
 
 roadCo., 532 
 
 Duncan i). Wickliffe, 228 
 
 Dunfee v. Childs, 1192 
 
 Dungey v. Angrove, 44 
 
 Dunham v. Winans & Co., 361 
 
 Dunlap V. Cody, 153, 157 
 
 Dunlap V. Gibbs, 84 
 
 Dunlap'sEx'ori'. Shanklin, 988 
 
 Dunlap V. Sisson, 55 
 
 Dunlop & Co. V. Keith, &c., 628, 624 
 Dunlop V. Patterson F. Ins. Co., 641 
 Dunn V. Dunn et als, 268, 272, 370, 408 
 Dunn V. Snell et als, 560 
 
 Dunn's Ex' or t). Eennick, 135, 356 
 
 Durant v. Essex Co., 381, 402, 872 
 
 Dm'baine v. Knight, 176 
 
 Durrett v. Davis, Guardian, 
 
 193, 408, 412, 426, 591, 740, 807, 
 
 1189, 1190 
 
 Dust V. Conrad et als, 15, 996 
 
 Duval et als v. Bibb, 221, 227 
 
 Duval V. Chelf, 
 
 1103, 1128, 1130, 1131, 1132 
 Duval V. EoUins, 559 
 
 Dyckman, &c. v. Kernochan et als, 218 
 Dyer v. Shurtleff, 472 
 
 Dyett V. N. A. Coal Co., 1105 
 
 Dykes v. Allen, 120, 1073 
 
 B 
 
 Eacho V. Cosby, 471, 1009, 1215 
 
 Eager, &c. v. Price, &c., 266, 352 
 
 Early and Wife v. Friend, 311, 738, 870 
 Fames, Ex parte, 56 
 
 Earp V. Boothe, 995 
 
 Easley v. Barksdale, 
 
 777, 1085, 1087, 1090, 1091 
 East India Co. v. Bodham, 60 
 
 Eastern Townships Banks v. Beebe, 926 
 Eastman v. Wadleigh, 151, 648 
 
 Eaton V. Hasty, 151 
 
INDEX TO CASES CITED. 
 
 Eckles V. N. & W. E. E. Co., 276 
 
 Eddy V. Traver, 1144 
 
 Edelin et als v. Pascoe et ^la, 67 
 
 Edgar v. Donnally, 227, 421 
 
 Edmondson ij. Blooraahire, 1248, 1260 
 Edmondson v. Soott, 167, 230 
 
 Edmonson v. Meacham, 559 
 
 Edmunds v. Bruce, 22, 586 
 
 Edmunds v. Venable, 881 
 
 Edwards v. Green, 152 
 
 Edwards v. Harben, 567 
 
 Edwards v. McLeary, 444 
 
 Edwards v. University, 120, 137 
 
 Edwards v. Varick, 29 
 
 Effinger v. Kenney, 
 
 474, 1156, 1183, 1193, 1251, 1262 
 EflBnger v. Ealston, 1178 
 
 Egberts v. Pemberton, 189, 945 
 
 Egberts v. Wood, 187, 535, 536 
 
 Eigleberger v. Kibler, 112, 547 
 
 Eldridge v. Knott, 87, 88 
 
 Eib V. Martin, 815 
 
 Eioks V. Copeland, 569 
 
 Eidson v. Huff et al, 1032, 1062, 1064 
 Eiland v. Eadford, 991 
 
 Elcan V. Lancastrian School, 1257 
 
 Elder" s Ex' ors et als v. Harris et als, 
 
 201, 444, 827 
 Elgin V. Marshall, 1207 
 
 Elibank v. Mantelieu, 11 
 
 EUenbe v. EUenbe, 743 
 
 EUet V. McGhee, 977 
 
 Ellieott V. Ellicott, 239 
 
 EUicott V. Welch, 287 
 
 Elliott V. Booth, 979 
 
 Elliott V. Carter et als, 718, 750, 772 
 Elliott V. CoUins, 206 
 
 Elliott's Ex' or v. Drayton, 238 
 
 Elliot and Wife v. George et als, 772 
 Elliott V. Gower, 1105 
 
 Elliott V. Howard, 714 
 
 Elliott V. Howell, 750 
 
 Elliott V. Merryman, 1086 
 
 Elliott V. Peirsol, 51, 1025 
 
 EUiott V. Trayhem, 442, 523 
 
 EUis V. Davis, 602 
 
 EUis V. Wihnot, 489 
 
 ElUson V. Moffat, 95, 127 
 
 Ellison V. Torpin, 1057 
 
 EUzey v. Zane's Ex'x, 355, 357, 817 
 Ehnendorf & Wife v. Delancy, 281 
 
 Ebnendorf v. Taylor, 81 
 
 Embree v. Hanna, 659 
 
 Emerick v. Armstrong, 169 
 
 Emerson v. Senter, 955 
 
 Emerson v. UdaU, 14, 28 
 
 Emmerson v. Fay, 466 
 
 Emmons v. Pidcock, 500 
 
 Emory v. Hazard Powder Co., . 466 
 Enders, &o. v. Brune, 7 
 
 Enders' Ex' ors v. Burch, 880, 917 
 
 Enders v. Public Works, 880 
 
 Enfield Bridge Co. v. Connecticut 
 
 Eiver Co., 465 
 
 Engel V. Scheuerman, 53 
 
 Engle »r. Haines, 975 
 
 English V. Savage, 30 
 
 English V. Smock, 483 
 
 Ennis v. Comm. & E. Bank, 661 
 
 Enoch V. M. & P. Co., 442 
 
 Enswortho. Lambert, &c., 197,352 
 Enterprise Transit Co. v. Sheedy, 1023 
 Epes V. Dudley, 503 
 
 Eppes V. Kandolph, 114, 1049, 1054 
 Eppes V. Thurman, 506 
 
 Ergenbright et als v. Ammon's 
 
 Adm'r, &c., 754 
 
 Erskine v. Henry, &c. , 1255 
 
 Erskine v. North, 87 
 
 Erskine v. Staley, 629, 633, 644, 669 
 Erwin v. Lowry, 1152 
 
 Ersvon v. Vint, 285, 358, 840, 1183 
 
 Essex Co. V. Berry, 30 
 
 Estell^j. McClintic's Adm'r, 718 
 
 Estep V. Watkins, 441, 832 
 
 Estm V. Taul, 919 
 
 Etheridge v. Parker, 1103 
 
 Etter V. Scott, 1154, 1162 
 
 Eustace v. Gaskins, 112 
 
 Evan V. Avon, 485 
 
 Evans v. Bradshaw, 874 
 
 Evans v. Dendy, 1189 
 
 Evans v. Drave, 79 
 
 Evans v. Evans, 330 
 
 Evans v. Greenhow, 105, 579 
 
 Evans v. Hettich, 799 
 
 Evans v. Johnston, 117 
 
 Evans v. Pearce, 738, 740, 756 
 
 Evans v. Spurgin, 
 
 91, 654, 831, 857, 1164 
 Evans v. State Bank, 1238, 1249 
 
 Evans v. Tatum, 925 
 
 Evans Bros. v. Eoanoke Bank, 
 
 978, 980, 981 
 Evansville v. Gas Light Co., 1201 
 
 Evelyn v. Templar, 105 
 
 Everett v. Winn, 171 
 
 Everman v. Eobb, 1018 
 
 Evertson v. Tappan, 735 
 
 Ewald V. Crocket, 1177, 1180 
 
 Ewart V. Saunders, 290, 1154 
 
 Ewing's Adm'r v. Ferguson, 
 
 115, 275, 287, 346, 426, 590, 1202 
 Exchange Bank v. MorreU, 343, 344 
 Express Co. v. Kountze Bros., 273 
 
 Eyster v. Graff, 220 
 
INDEX TO CASES CITED. 
 
 F. & T. Co. V. Devries, 1082 
 
 Faber v. Hovey, 983 
 
 Fabre v. ColdeD, 158 
 
 Fadely v. Tomlinson, 276, 497 
 
 Fadely v. ■Williama, 1146, 1147 
 
 Fairbanks D. Amoskeag Nat' IBank, 1236 
 Fairbanks v. Bell, 468 
 
 Fairfax v. Muse, 817 
 
 Fairfield Savings Bank v. Chase, 1056 
 Falls V. Eobinson, 30 
 
 Fanning v. Dunham, 29, 63, 134 
 
 Fant V. Miller & Mayhew, 
 
 423, 690, 787, 788, 790, 793, 
 794, 795, 796, 797, 800, 805 
 FareUy v. Woodfolk, 820 
 
 Farinholt v. Lukehard, 964, 968 
 
 Farland v. Wood, 452, 455 
 
 Farley v. Lea, 917 
 
 Farley v. Tillar, 118, 1122 
 
 Farmers Bank v. Day, 667 
 
 Farmers Bank v. Gettinger, 626 
 
 Farmers Bank v. Eeynolds, 344, 875 
 Farmers Bank v. Vanmeter, 57 
 
 Farmers Bank v. Waterman, 167 
 
 Farmers Bank v. Watson, 188 
 
 Famesworth v. Fowler, 492 
 
 Farneyhoughi). Dickerson, 765, 770, 828 
 Farrar v. Adams, 1045 
 
 Farrar v. Churchill, 1237 
 
 Farrier v. Eeynolds, 481 
 
 Farrell v. Cook, 466 
 
 Fauber' 8 Adm'r t). Gentry, 765 
 
 Faulkner v. Aurora, 466 
 
 Faulkner v. Davis, 473, 480, 589, 846 
 Faulkner v. Harwood, 43 
 
 Faulconer v. Stinson, 1160, 1214 
 
 Faure v. Winans, 998 
 
 Fawkes v. Pratt, 280 
 
 Fayette Land Co. v. L. & N. E. E. 
 
 Co., 195 
 
 Feamster v. Withrow, 700 
 
 Fe Javary v. Broesch, 966 
 
 Fellows V. Fellows, 266 
 
 Fellows V. Lewis, 965 
 
 FeUowes v. New Haven City, 484 
 
 Fenwick v. Laughlin, 365 
 
 Fenwick v. Sears, 162 
 
 Ferguson v. Bond, 1045 
 
 Ferguson v. Crawford, 154 
 
 Ferguson v. Dougherty, 572, 692, 1137 
 Ferguson v. Teal, 831, 928 
 
 FerreU v. Madigan, 979 
 
 Ferriday v. Selcer, 29 
 
 Fetterman v. Murphy, 578 
 
 Ficklin v. Carrington, 112, 136 
 
 Fidelity Ins. Co. v. S. V. E. E. Co., 
 
 532, 583, 763, 1058 
 Field V. Brown, 90, 504 
 
 Field's Estate, 
 Field V. Holland, 
 Field V. Mayor, 
 Field V. SchiefFelin, 
 Field V. Wilson, 
 Fields V. Stokely, 
 
 557 
 
 435 
 
 1011 
 
 361, 753 
 
 84 
 
 462 
 
 Filler V. Tyler, 36, 61, 1098, 1110, 1210 
 Findlay v. Sheffey, 158 
 
 Findlay d. Smith, 420, 456, 703 
 
 Findlay v. Toncray, 945 
 
 Findley v. Findley, 703 
 
 Findley t>. Trigg, 773, 1262 
 
 Fink V. Lawrence, 462 
 
 Fink Bros. & Co. v. Denny, 
 
 554, 1210, 1212, 1220 
 Finley «. Finley, 330 
 
 Finney v. Bennet, 186 
 
 Finney v. Edwards, 1184 
 
 First Nat'l Bank v. Andrews, 934 
 
 First Nat'l Bank v. Huntingdon D. 
 
 Co., 920 
 
 First Nat'l Bank v. TurnbuU, 
 
 571, 1011, 1017 
 First Nat'l Bank v. Parsons, 417, 680 
 First Nat'l Bank v. Paul, 1026, 1028 
 Fish V. Dodge, 466 
 
 Fishbum v. Furguson, 887, 888 
 
 Fisher & Bro. v. March, 
 
 52, 151, 154, 156, 625,' 628, 648, 925 
 Fisher v. Tucker, 121 
 
 Fisher v. White, 195, 435 
 
 Fiske V. Tolman, 488 
 
 Fitch V. Polk, 30 
 
 Fitzer v. Fitzer, 108 
 
 Fitzgerald v. Caldwell, 659 
 
 Fitzgerald v. Jones, 733, 770, 871 
 
 Fitzgerald v. Noel, 618 
 
 Fitzgerald v. Wind Mill Co., 1134 
 
 Fitzgibbon v. Barry, 142 
 
 Fitzhugh V. Anderson, 567 
 
 Fitzhugh's Ex' or v. Fitzhugh, 
 
 720, 898 
 FitzsimmonsD. Ogden, 1038 
 
 Flack V. Channon, 534 
 
 Fladong v. Winter, 87 
 
 Flannery v. Eohrmayer, 1079, 1080 
 
 Fleetwood v. Jansen, 20, 562 
 
 Fleming v. Boiling, 817, 823 
 
 Fleming, Trustee, v. CoUins' Adm'r, 
 
 459 
 Fleming v. Townsend, 567 
 
 Flemings v. Eiddick, 982, 983, 1261 
 Fletcher v. Ashburner, 930 
 
 Fletcher v. Edson, 1075 
 
 Fletcher v. Froggat, 422 
 
 Fletcher v. Jackson, 490 
 
 Fletcher v. Warren, . 29 
 
 Fletcher's Adm'r v. Saunders, 160, 177 
 Florentine v. Barton, 1190 
 
 Floyd V. Floyd, 608 
 
INDEX TO CASES CITED. 
 
 Floyd, Trustee, v. Harding et al, 
 
 396, 552, 636, 932, 950, 
 990, 1030, 1032, 1063 
 Floyd V. Harrison et als, 221 
 
 Floyd V. Jayne, 30 
 
 Floyd V. Jones, 276 
 
 Flynn v. Messenger, 1106 
 
 Fogg V. Lawry, 662 
 
 Foley V. Hill, 72, 383 
 
 Foley V. Eulay, 391 
 
 Follett V. Hall, 1046 
 
 Foltz V. Powrie, 44 
 
 Footman v. Stetson, 22 
 
 Fones v. Bice, 550, 556, 575 
 
 Ford V. Gardner, &o., 603, 894, 896, 904 
 Ford V. Stuart, 560 
 
 Ford's Adm'ru Thornton, 28 
 
 Fore V. Foster, 285 
 
 Foreman v. Murray, 699, 754, 755, 756 
 Forest v. Stephens, 887 
 
 Forgay v. Conrad, 169, 1224, 1229 
 
 Forkner v. Stuart, 995 
 
 Porman v. Blake, 860 
 
 Forqueran v. Donally, 425, 443 
 
 Forsyth v. Hammond, 1235 
 
 Forsythe v. Beveridge, 1071 
 
 Forsythe v. McWreight, 29 
 
 Fosdick V. Carr Co, 532, 583, 1003 
 
 Fosdick D. Schall, 
 
 583, 1003, 1015, 1019, 1080 
 Poster's Appeal, 958 
 
 Poster, &c. V. Busteed, 381, 402 
 
 Poster V. Crenshaw, 163 
 
 Foster, Ex parte, 50 
 
 Foster v. Fletcher, 1196 
 
 Foster v. Hall, 376 
 
 Foster v. Mabe, 942 
 
 Foster v. Manchester, 381, 401, 844 
 
 Poster V. Mott, 340 
 
 Foster v. Sutton, 794 
 
 Poster V. Tyler, 169 
 
 Foster v. Wood, 28 
 
 Foster, &c. v. Crenshaw's Ex' or, 
 
 210, 919 
 Foster's Curator v. Eison, &c., 
 
 90, 98, 126 
 Pouch V. Wilson, 984, 988 
 
 Fountain v. Caime, 138 
 
 Foushee v. Lea, 895, 908 
 
 Pouthy V. Poar, 444 
 
 Fowle V. Laurdson, 32 
 
 Fowler v. Hammill, 1237 
 
 Fowler v. Lee, 14, 156, 526 
 
 Fowler v. Lewis, 
 
 94, 134, 156, 292, 366, 426, 589 
 Fowler v. Eowe, 30 
 
 Fowler et ux v. Saunders, 275, 300 
 
 Fox V. Mackreth, 737 
 
 Pox V. Mountjoy, 495 
 
 Fox V. Kootes, 189 
 
 Fox V. Seal, 1079 
 
 Francis, by, &c. v. Francis, 338 
 
 Francisco v. Suelton, 482 
 
 Prank & Co. v. Brunneman, 461, 1122 
 Prank et al v. Lillienfield, 
 
 1099, 1104, 1106, 1112 
 Frank v. Peoples Nat'l Bank, 1154 
 
 Pranks v. Cravens et als, 65, 936 
 
 Franklin Bank v. Bachelder, 667 
 
 Franklin's Adm'r r. Depriest, 831 
 
 Franklin v. Wilkinson, 
 
 857, 358, 451, 497, 881 
 Prankhouser v. Ellet, 565, 568 
 
 Pratt V. Whittier, 942 
 
 Prazier v. Baker and Wife, 967 
 
 Prazier v. Prazier, 
 
 138, 159, 309, 310, 1203 
 Prazier v. Hendren, 985 
 
 Prazier v. Syas, 962 
 
 Preeland v. McCuUough, 1076 
 
 Preelands v. Eoyal, 407 
 
 Freeman v. Alderson, 156 
 
 Freeman v. Eacho, 1106 
 
 Freeman v. Pope, 107 
 
 French v. Baron, 998 
 
 French v. Carver, 30 
 
 French v. French, 606 
 
 French v. Garner, 29, 30, 42 
 
 French v. Loyal Co., 1057, 1088 
 
 French v. Sheplow, 952 
 
 French v. Shoemaker, 824, 829, 1228 
 French, &c. v. Shotwell, 383, 830 
 
 French v. Townes et als, 696, 700 
 
 French v. Waterman, 1098, 1113, 1114 
 Freshwater v. Pittsburgh, W. & K. 
 
 E. E. Co., 508 
 
 Pretz V. Stover, 314, 443, 727 
 
 FretweU v. Wayt and Winn, 820 
 
 Prey v. Drahos, 1009 
 
 Friend v. Friend, 381 
 
 Prink v. BeUis et al, 203 
 
 Prisch V. Marks, 1102 
 
 Frith V. Eoe 29 
 
 Frost, &c. V. Beekman, 409 
 
 Frost, &c. V. Brisbin, 618 
 
 Frost V. Yonkers Savings Bank, 1188 
 Prow V. De La Vega, 825, 852 
 
 Prye v. Payne, 305 
 
 Fry i). Teamster, 695 
 
 Fudge V. Payne, 345 
 
 Fugate V. Honaker's Ex' or, 730, 1205 
 Fugate V. Moore, 161 
 
 Fuller et al v. Claflin, 440 
 
 Puller V. Steiglitz, 670 
 
 Fulton V. Eosevelt, 193, 274 
 
 Fulton Bank v. Sharon Canal Co., 
 
 191, 429 
 Fultz V. BrightweU, 727 
 
 Pultz V. Davis, 1158 
 
 Fund V. Fletcher, 564 
 
INDEX TO CASES CITED. 
 
 Fvrnk V. Paul, 
 Furlong V. Edwards, 
 Fussell V. Gregg, 
 
 G 
 
 1016 
 
 514 
 1225 
 
 Gaffidd V. Hapgood, 937, 940 
 
 Gage V. Crockett, 1207, 1214, 1217 
 
 Gaines v. Gaines, 338 
 
 Gaines v. Thomas, 483 
 
 Gainsborough v. Gifford, 23, 48 
 
 Gallatin D. Erwin, &c., 398 
 
 Galet). Mensing, 473 
 
 Gale 11. Williamson, 107 
 
 Gallaher v. Roberts, 29 
 
 GaUaher v. Kowan, 178 
 
 Gallatin L. C. & O. Co. v. Davis, 133 
 Gallego's Ex'ors v. Attorney General, 
 
 177, 178 
 GaUego v. Gallego, 555 
 
 Galpin v. Page, 52, 192, 1190, 1192 
 Gait, &c. V. Carter, 892 
 
 Gait V. Colland, 196 
 
 Galveston Railroad v. Cowdrey, 
 
 189, 286, 1014 
 Gamble v. Gibson, 720 
 
 Gambling v. Bead, 1002 
 
 Ganef v. Grout, 555 
 
 Gans V. Kenshaw, 482 
 
 Gant V. Gant, 885 
 
 Gapen v. Gapen, 117 
 
 Garden & Co. v. Bodering's Adm'x, 565 
 Gardner v. Bowling, 30 
 
 Gardener v. Gardener, 
 
 430, 888, 1102, 1103 
 Gardener v. Hardy and Simms, 
 
 30, 47, 48 
 Gardener a{ als v. Johnston et al, 565 
 Gardner et al v. Landcraft et als, 421 
 Gardner v. Trustees, &c. , 181 
 
 Gardner v. Village of Newburgh, 
 
 464, 465 
 Garland v. Chambers, 564 
 
 Garland v. Garland, 161, 951 
 
 Garland v. Hull, 67 
 
 Garland v. Pamplin, 1102, 1122 
 
 Garland v. Eives, 14, 561, 562, 576, 578 
 Garliok v. James, 1073 
 
 Garlick v. McArthur, 29, 34 
 
 Garlick v. Strong, &c. , 274 
 
 Gamer v. Gordon, 340 
 
 Gamett, &c. v. Macon, 99, 864 
 
 Garr, &o. v. Drake, &c., 193 
 
 Garrard v. Henry, 248, 261 
 
 Garrard v. Ld. Lauderdale, 106 
 
 Garrett's Adm'i v. Bradford, 828 
 
 Garrett, &c. v. Carr, 
 
 295, 734, 735, 758, 759, 1325 
 Garrett v. Johnson, 392 
 
 Garrison v. Hall et als, 458 
 
 Garrison v. Monaghan, 559 
 
 Garrow v. Carpenter, 507 
 
 Garwood v. E. E. Co., 462 
 
 Gates V. Brown, 1104 
 
 Gatewood, by, &c. v. Gatewood, 
 
 1143, 1145 
 Gatewood' s Adm'r v. Goode et als, 
 
 978, 979, 1060 
 Gaw V. Hufiinan, 711 
 
 Gay V. Gay, 23, 29 
 
 Gay V. Lockridge, 695 
 
 Gay 1). Parpart, 558 
 
 Gay V. Skeen, 369 
 
 Gayle v. Hayes, 756 
 
 Gayle v. Wilson, Trustee, 977, 1145 
 Gaylord v. Imloof, 963 
 
 Gaylords v. Kelshaw et al, 200 
 
 Geiger v. Blockley, 1104 
 
 Gentry v. Allen et als, 229, 920, 1202 
 Gentry v. Bailey, ' 775 
 
 Gentry v. Gentry, 204, 1116 
 
 George v. Bates, lOOg 
 
 George v. Blue, 650 
 
 George v. Milbank, 550 
 
 George et als v. Pilcher et als, 209, 908 
 George v. Strange' s Ex' or, 24, 34 
 
 George v. Stubbs, 1002 
 
 Georgetown v. Alex. Canal Co., 456, 463 
 Germain v. Mason, 1224 
 
 Gettys V. Gettys, 153 
 
 Gevon v. Gevon, 1074 
 
 Gibbens v. Eitter, 1140, 1164, 1166 
 
 Gibboney's Ex' or v. Kent, 93 
 
 Gibbs V. The Queen Ins. Co., 150 
 
 Gibert v. Eailroad Co., 533, 1159 
 
 Gibler v. Tremble, 1038 
 
 Gibson v. Burgess, 863 
 
 Gibson's Case. 1162 
 
 Gibson v. Green, 212, 218, 276, 985 
 Gibson v. Goldthwaite, 296 
 
 Gibson v. Jones, 472, 474 
 
 Gibson v. Randolph, 277 
 
 Gibson v. Tilton, 439 
 
 Gibson D. White, 151, 253, 647, 650, 836 
 Gifford V. Morrison, 26 
 
 Gilbert v. People, 377 
 
 Gilchrist v. W. Va. O. & O. L. Co., 
 
 155, 925 
 GUes V. Baremore, 87, 88 
 
 Gilham v. Locke, 556 
 
 Gill V. Barbour, 1169 
 
 Gill V. The State, 1108, 1134 
 
 GHleland v. Ehodes, 559 
 
 Gillespie v. Allen, 355 
 
 Gillespie v. BaUy, 137 
 
 Gillespie v. Nabors, 305 
 
 Gillespie et als v. Thompson, 495 
 
 Gilliam v. Allen, 503 
 
 Gilliam v. Clay, 433 
 
 Gilliam v. Moore, 972 
 
INDEX TO CASES CITED. 
 
 GiUiat V. Lyncli, 23, 34, 997, 1073 
 
 Gilman v. Eyan, 1043, 1079, 1216 
 
 Gilmer v. Baker, 435 
 
 Gilmer v. Stone, 178 
 
 Gilmer v. Sydenstricker, 779 
 
 Gilson V. Govain, 1073 
 
 Ginter i;. Breedin, 778 
 
 Giovanni v. Bank, 963 
 
 Girard v. Philadelphia, 301 
 
 GishwUer v. Dody, 340 
 
 Gittings V. HuU, 1028 
 
 Givens & Keynolds v. Manns, 801 
 
 Glasscock v. Batton, 1031 
 
 Glassell v. Thomas, 647, 649 
 
 Glascow V. Lipse, 726 
 
 Glazebrook's Adm'r v. Eagland's 
 
 Adm'r, 1037, 1064 
 
 Gleason v. Dodd, 155 
 
 Glenn v. Blackford, 1159, 1198 
 
 Glenn v. Clarke et als, 
 
 318, 847,- 848, 849 
 Glenn v. Fowler, 64 
 
 Glenn v. Liggett, 186 
 
 Glenny v. Langdon, 1260 
 
 Globe V. Gale, 1082 
 
 Globe Marble Mills Co. v. Quinn, 941 
 Glover v. Hodges, 30 
 
 Glyn V. Duesberry, 44 
 
 Goare v. Beuhring, 647, 1156 
 
 Godden v. Bland & Bro., 67 
 
 Godden v. KimmeU, 81 
 
 Goddin v. Crump, 181 
 
 Goddin v. Vaughan's Ex'z, 
 
 138, 220, 256, 417, 438, 451, 
 
 853, 1088, 1162, 1182 
 Godeffioy v. Caldwell, 1081 
 
 Godfrey v. Terry, 273 
 
 Godfrey v. Watson, 998 
 
 Goeman v. Conger, 1104 
 
 Goff V. Price, 281, 322, 847 
 
 Gold's Adm'r v. Bowen, 746 
 
 Gold V. Marshall, 992 
 
 Gooch's Case, 105 
 
 GoodaR V. Grafton, 463 
 
 Goodell V. Fairbrother, 1005 
 
 Goodenough, In re, 340 
 
 Goodman v. Henry, 625, 661 
 
 Goodman v. Whitcomb, 491 
 
 Goodman v. Winter, 589 
 
 Goodrich v. Pendleton, 382, 383, 388 
 Goodwyn v. McCluer, 70 
 
 Goolsby, &c. V. St. John, 
 
 12, 15, 16, 19, .21, 42,46, 61, 65, 
 70, 131, 353 
 Gordon et als v. Cannon et als, 
 
 563, 569, 1007, 1162 
 Gordons Fitzhugh, 1140, 1142 
 
 Gordon v. GUfoil, 391 
 
 Gordon v. Gordon, S32 
 
 Gordon v. Hobart, 684 
 
 Gordon v. Kixey, 985, 990, 1030, 1036 
 Gorham v. Toomey, 54 
 
 Gosden and Wife v. Tucker's Heirs, 553 
 Goshom's Ex' or v. Snodgrass, 
 
 561, 572, 575, 1055 
 Gough V. Pratt, 18, 63 
 
 Gouvemour v. Elmendorf, 277, 321, 445 
 Governor v. Brown, 30 
 
 Gowan v. Jefiries, 517 
 
 Grace Gridler, The, 1218, 1227 
 
 Graeme v. Culleu et als, 473, 947, 1080 
 Graffam v. Burgess, 1177 
 
 Grafton & G. E. Co. v. Davisson, 983 
 Graham's Ex' or v. Carter, 198 
 
 Graham v. Graham, 81, 695 
 
 Graham v. King, 254 
 
 Graham v. Lamer, 1186 
 
 Graham v. McCampbell, 987, 1142 
 
 Graham v. Mt. Sterling C. E. Co., 1079 
 Graham v. Pence, 600 
 
 Graham, &c. v. Pierce, 311, 706 
 
 Graham v. Eoberts, 29 
 
 Graham v. Eailroad Co., 879 
 
 Granberry'sEx'oru.Granberry, 710, 726 
 Grand Chute v. Winegar, 32 
 
 Grand Eapids Bridge Co. v. Prange, 570 
 Grandin, &c. v. Le Boy, &c. , 73 
 
 Grant v. Duane, 996 
 
 Grant v. Quick, 54 
 
 Grant v. Strong, 1082 
 
 Grant v. Sutton, 428 
 
 Grantham v. Lucas, Trustee, 538 
 
 Grasswit's Assignee, &c. v. Con- 
 
 nally, 1022 
 
 Gravely v. Gravely, 71 
 
 Graves v. Boston Co., 32 
 
 Graves v. Graves, 336, 797 
 
 Graves v. Hedrick, 234 
 
 Gravillon v. Eichards, 618 
 
 Gray v. Ayres, 465 
 
 Gray v. Blanchall, 1227 
 
 Gray v. BrignardeUo, 
 
 842, 868, 1190, 1191, 1192 
 Gray v. Chaplin, 181 
 
 Gray i). Dickenson's Adm'r, 697 
 
 Gray v. Matthias, 557 
 
 Gray v. EoUo, ' 24 
 
 Gray v. Stuart & Palmer, 1259 
 
 Grayson v. Buchanan, 481 
 
 Greathouse v. Sapp, 1212, 1219 
 
 Greene v. Darling, 23, 29 
 
 Greene v. Greene, 331 
 
 Green's Adm'r I). Thompson, 94 
 
 Green & MUler v. Brengle, 982 
 
 Green v. Lake, 464 
 
 Green & Suttle v. Massie, 
 
 32, 34, 43, 44, 58, 259, 260, 326 
 Green v. Phillips, 638, 934, 935 
 
 Green v. Poole, 240 
 
 Green v. Eaymond, 964, 965, 968 
 
IIV 
 
 INDEX TO CASES CITED. 
 
 Green v. Slayter, 1091 
 
 Green, Trustee, v. Spaulding, 58 
 
 Greenbrier Ind. Ex. ti. Kodes, 187 
 
 Greenleaf v. Queen, 472 
 
 Greenlee v. Gaines, 29 
 
 Greeway, Ex parte, 60 
 
 Greer v. Greers, 609 
 
 Greer v. Hale, 558, 586, 587, 839 
 
 Greer ?j. O'Brien, 572 
 
 Greer v. Wright, 200, 577 
 
 Gregg V. Sloan, 652, 1030 
 
 Gregory v. Litsey, 982 
 
 Gregory v. Marks, 325 
 
 Gregory v. Peoples, 572 
 
 Gregory et al v. Winston's Adm'r, 561 
 Grevemeyer v. So. M. F. Ins. Co. , 
 
 921, 958 
 Gresham v. Ewell, 51 
 
 Griffin's Ex' or n. Cunningham, 1263 
 Griffin's Ex' or et al v. McCauley's 
 
 Adm'r, 696, 1009, 1022 
 
 Griffith et als v. Bird et als, 757 
 
 Griffith V. Thompson, 27 
 
 Grigsby v. Osbom, 568 
 
 Grigaby v. Weaver, 430, 808, 889, 904 
 Grim v. Byrd, 476, 477, 479 
 
 Grimstone v. Carter, 408, 421, 438 
 
 Grinberg & Morris v. Singerman, 615 
 Griswold V. Waddingtou, 492 
 
 Groch's Case, 105 
 
 Grocer Co. v. Fruit Packing Co., 815 
 Groesbeck v. Seeley, 1029 
 
 Grogan v. Egbert, 526 
 
 Grosh V. Ivanhoe L. Co., 475, 476, 479 
 Gross V. Pearcy, 1161, 1163, 1182, 1198 
 Grosvenor u Austin's Adm'r, 585 
 
 Grove v. Todd, 974, 1027 
 
 Grove V. Zumbro, 1025, 1026 
 
 Grover v. Grover, 560 
 
 Grover v. Wakeman, 173 
 
 Groves v. County Court, 156 
 
 Grubbs v. Wisors, 1140, 1142 
 
 Grymes J). Pendleton, &c., 819 
 
 Guarantee Co. v. First Nat'l Bank, 
 
 622, 631 
 Guggenheimer v. Lockridge, 545 
 
 Guiert). O' Daniel, 153,618 
 
 Guionj). Ins. Co., 1224 
 
 Guion V. Knapp, 977 
 
 GuUd V. Butler, 489 
 
 Gunn V. Barry, 961, 966 
 
 Gunn V. Ohio E. K. E. Co., 899 
 
 Gunn et als v. Turner's Adm'r, 168 
 
 Gumee v. Bansemer, 292 
 
 Gumer v. Johnson, 920 
 
 Gurvin v. Cromartie, 550 
 
 Guy V. Globe Ins. Co., 526 
 
 Gyger's Appeal, 680 
 
 Haak v. Linderman, 1003 
 
 Hackley's Adm'r r. Singert, 636 
 
 Haden v. Garden, 26, 62 
 
 Hadfield v. Jameson, 150, 886 
 
 Haffeys v. Birchetts, 647 
 
 Haffey, &c. v. Miller, &c., 637 
 
 Hagan v. Wardens, 69 
 
 Hagedon v. The Bank, 522 
 
 Haight V. Burr, 516 
 
 Haight V. Prop, of M. Aqueduct, 429 
 Haines, &c. v. Beach, &c., 196 
 
 Hairston v. Medley, 151, 619, 779 
 
 Hairston v. Eandolphs, 1025, 1027 
 
 Hairston v. Woods, 175 
 
 Hale V. Everett, 461 
 
 Hale V. Frost, 522, 583 
 
 Hale V. Home et als, 238, 945 
 
 Hale et al v. Pack's Ex'ors, 90, 359 
 Hale V. Wall, 1205 
 
 Hale V. Wilkinson, 128 
 
 Haleys v. WOHams, 945, 949, 1153 
 
 Hall V. Creswell, ■ 115 
 
 Hall V. Cushman, 1144 
 
 Hall V. Hall, 986 
 
 Hall V. Harrison, 161 
 
 Hall V. James, 188, 201, 229, 1202 
 
 Hall V. Lambert, 1009 
 
 Hall V. McPhereon, 438, 498 
 
 Hall V. Eood, 462, 466 
 
 Hall V. Smith, 325 
 
 Hall V. Williams, 925 
 
 Hall's Safe & Lock Co. v. Sirtes, 1080 
 HaU & Patton v. Taylor, 1145 
 
 HaUam v. Jones, 652 
 
 Hallett, &c. V. HaUett, &c., 685 
 
 Halley v. Oldham, 1036 
 
 Hallock V. Smith, 196 
 
 Halsey v. Peters, 568 
 
 Halstead v. Seaman, 597 
 
 Ham V. Ham, 760 
 
 Hamilton v. Glenn, 185, 1076 
 
 Hamilton v. Hamilton, 1174 
 
 Hamilton v. Huntley, 939 
 
 Hamilton v. Eussell, 567 
 
 Hamilton v. Eogers, 1014 
 
 Hamilton v. Smith, 562 
 
 Hamilton v. Whitridge, 465 
 
 Hamlin's Adm'r v. Atkinson, &c., 
 
 743, 760 
 Hammond v. Hammond, 287, 292 
 
 Hampton v. McConnel, 925 
 
 Hampton v. Phipps, 1144 
 
 Hanby v. Henritze, 347 
 
 Hancock v. Hutcherson, 137, 353, 356 
 Hancock v. Jordan, 939 
 
 Handy v. Scott, 695 
 
 Handley v. Snodgrass, 711, 734 
 
 Handlan v. Handlan, 276, 814 
 
INDEX TO CASES CITED. 
 
 LV 
 
 Hanger v. Abbott, 1125 
 
 Hanker v. Moore, 1144 
 
 Hanly v. Watterson, 324 
 
 Hanna v. Reed, 401 
 
 Hanna v. Spotts, 353, 852 
 
 Hanna v. Wilson, 
 
 lir, 124, 985, 987, 1148 
 Hannah v. Boyd, 704, 711, 726, 748 
 Hannewinkle v. Georgetown, 482 
 
 Hannibal E. E. Co. v. Crane, 621 
 
 Hannon v. Hannah, 309 
 
 Hannon v. Williams, 1077 
 
 Hanover v. Turner, 152 
 
 Hansberger v. Kinney, 489 
 
 Hansbrough v. Stinnet, 1210 
 
 Hanse v. Judson, 668 
 
 Hansford v. Coal Company, 317, 322 
 Hansford v. Elliott, 137, 159, 162 
 
 Hanson v. Barnes, 949 
 
 Hanson v. Buckuer, 881 
 
 Hanson, Ex parte, 26 
 
 Hanson v. Gardner, 68, 461 
 
 Hanson v. Patterson, 814, 835 
 
 Hanson v. WiUard, 306 
 
 Hansucker v. Walker, 1160, 1177 
 
 Hardee v. Wilson, 1224 
 
 Harder v. Harder, 239 
 
 Hardesty D. WUson, 1173 
 
 Hardin v. Boyd, 345, 452 
 
 Hardin v. Hardin, 325, 328 
 
 Hardin v. KeUy, U87 
 
 Harding 1). Alden; 153 
 
 Harding v. Cohen, 1007 
 
 Harding v. Handy, 240, 265, 275, 350 
 Hardy v. MerriU, 607 
 
 Hardy, Trustee, v. Norfolk Mfg Co., 
 
 187, 955, 1045 
 Hardy v. TAton, 641 
 
 Hare v. Lowe, 30 
 
 Hargroves v. Moray, 556 
 
 Harkins v. Forsyth, 859 
 
 Harkinson's Appeal, 462 
 
 Harkness v. EusseU, 1001 
 
 Harlan v. Harlan, 934 
 
 Harman v. Byram's Adm'r, 220, 1088 
 Harmaau Copenhaven, 1183 
 
 Harman v. Davis, 725 
 
 Harman v. Howe, 493 
 
 Harman v. Lynchburg, 
 
 1207, 1209, 1214, 1218, 1227 
 Harman v. McMuUin, 522 
 
 Harman v. McNulton, 359 
 
 Harman v. Oberdorfer, 
 
 230, 975, 978, 1045 
 Harman v. OdeU, 1261 
 
 Hamesbarger v. Geiger, -488 
 
 Hamesbarger's Adm'r v. Kinney, 21 
 Harnsbergeri).' Yancey, 68 
 
 Harper v. McVeigh, 127, 696 
 
 Harper v. Vaughn, 827 
 
 Harratt v. Harratt, 330 
 
 Harriman v. Brown, 799 
 
 Harrington 1). DuChatel, 63 
 
 Harris v. Bedford, 607 
 
 Harris v. Carson, 1019 
 
 Harris v. Frink, 1019 
 
 Harris v. Harris, 314, 320, 1100 
 
 Harris v. Harris' Ei'or, 
 
 79, 112, 335, 429, 547 
 Harris v. Hauser, 520 
 
 Harris v. Horner, 1036 
 
 Harris v. Kickerbacker, 346 
 
 Harris v. Magee, 706 
 
 Harris v. Pulman, 151 
 
 Harris v. Thomas, 72, 368 
 
 Harris v. Wall, 810 
 
 Harrison v. Carroll, 553, 555 
 
 Harrison v. Courtauld, 797 
 
 Harrison et als v. Gibson et als, 
 
 91, 92, 95, 98, 99, 125, 136, 137, 204 
 Harrison v. Gumey, 52 
 
 Harrison v. Harrison, 44, 81, 198 
 
 Harrison v. Manson, 590 
 
 Harrison v. Morton, 492 
 
 Harrison r. Nettleship, 23 
 
 Harrison v. New Orleans, 484 
 
 Harrison's Ex' or et als v. Price's 
 
 Ex' or et als, 442, 489, 843, 1157 
 
 Harrison v. Sims, 460, 470 
 
 Harrison v. Walton's Ex' or, 852, 853 
 Harshberger's Adm'r v. Alger, &c., 
 
 722, 1103, 1104 
 Hartu. Love, &c., 1001 
 
 Hart V. Mayor, &c., 460, 465 
 
 Hart V. Ten Eyck, 422, 686, 750 
 
 Hartley & Co. v. Eopp, 
 
 256, 287, 1177, 1200 
 Hartman v. Evans, 441, 471, 472, 695 
 Hartman et al v. Ins. Co., 
 
 185, 186, 530, 1076 
 Hartman v. Stickler, 899 
 
 Hartsook v. Crawford, 1210 
 
 Hartsook v. Staton, 67 
 
 Hartson v. Davenport, 29 
 
 Harvey v. Alexander, 282, 553, 1049 
 Harvey v. Branson, 817, 818, 821, 823 
 Harvey v. Fox, 58, 62 
 
 Harvey's Adm'r v. Steptoe's Adm'r 
 
 et als, 107, 114, 116, 738, 778 
 
 Harvey v. Tyler, 51, 1190 
 
 Harvey v. Wood, 24 
 
 Harvie v. Banks, 997, 998 
 
 Harvie v. Wickham, 1008 
 
 Harwood v. Kirby, 307 
 
 Harwood v. EaUroad Co. , 101, 201 
 
 Harwood v. Eawlings, 1084 
 
 Haselton v. Monroe, 659 
 
 Haseltine & Walton v. Brickey, 
 
 28, 44, 297, 651, 660 
 Hash V. Love, 672 
 
INDEX TO CASES CITED. 
 
 Haskel v. Hilton, 172 
 
 Haskill V. Andros, 641 
 
 Haskin, Wood & Co. v. Cleveland, 
 
 266, 935 
 Haskins v. Forsytli, 818, 1026 
 
 Haskins v. Eailway Co. , 1253 
 
 Easier v. King, 1029, 1045 
 
 Hat Sweat Mfg. Co. v. Eeinold, 467 
 Hatch V. Dana, 186 
 
 Hatch V. Spoflford, 390 
 
 Hatcher v. Crew, 428, 783, 804, 963 
 Hatcher v. Hatcher, 353, 354, 987 
 
 Hatcher v. Hull, 91 
 
 Hatorflfj). WeUford, Judge, 964 
 
 Hattier v. Etinand, 993 
 
 Hauser v. King, 757, 1005, 1143, 1145 
 Hawber v. Seibert, 344 
 
 Hawkes v. Pike, 1045 
 
 Hawkins v. Forsyth, 1027 
 
 Hawkins v. Glenn, 186 
 
 Hawkins v. Gresham, 1212, 1215 
 
 Hawkinson v. Lombard, 790 
 
 Hawley v. Bradford, 1102 
 
 Hawley v. Clowes, 459 
 
 Hawley v. Cramer, 73, 121 
 
 Hawley v. James, 1163 
 
 Hawthorn v. Beckwith, 589, 1093 
 
 Haxall V. Shippen, 958 
 
 Hay' 8 Com. v. Camden, 426 
 
 Hay Tool Co. v. Boyd, 1023 
 
 Hayes v. Jones, 551 
 
 Hayes v. Miles, 362 
 
 Hayes?). Mu. Pro. Ass'n, 1118 
 
 Hayes v. Ward, 29, 33, 34 
 
 Haymond v. Jones, 1094, 1095 
 
 Haynier v. Hall, 80 
 
 Hayward v. Andrews, 468, 1225 
 
 Hayward v. Nat'l Bank, 1073 
 
 Hayzlett v. McMiUan, 438, 439, 498 
 Hazelwood v. Forrer, 572, 1137, 1177 
 Head v. Head, 908 
 
 Head v. Stevens, i&l 
 
 Health Dep't v. Pardon, 466 
 
 Healy, In re, 247 
 
 Healy v. Bateman, 964 
 
 Healy v. Kowan, 1025, 1027 
 
 Heath v. B., F. & P. R. E. Co., 952 
 Hebun v. Warner, 1106 
 
 Hecht V. Dettman, 943, 1015 
 
 Hedrick v. Hopkins, 746 
 
 Hedderick v. Smith, 935 
 
 Hedenberg v. Hedenberg, 160 
 
 Heeg V. Ficht, 466 
 
 Heeter v. Glascow, 1026 
 
 Heermans v. Montague, 
 
 218, 353, 354, 366 
 Heffemans v. Grvmes, 655 
 
 Heflmer v. Miller, 502 
 
 Heilig V. Lemly, 1145 
 
 Heine v. The Commissioners, 1073 
 
 Heiskell v. PoweU, 81 
 
 Hehn v. Hehn, 963 
 
 Hehnbold v. Hebabold, 468 
 
 Helsly V. Craig, 160, 745, 857 
 
 Hennesy v. Western Bank, 536 
 
 Hennings v. Pugh, 67 
 
 Henninger v. Henninger, 330, 336 
 
 Hemiup, Matter of, 695 
 
 Hempstead v. Watkins, 29 
 
 Henderson v. Alderson, 256 
 
 Henderson v. Henderson, 201, 219 
 
 Henderson v. Hunton, 112, 556, 1137 
 Henderson v. Lightfoot, 368 
 
 Henderson v. Mitchell, 19, 30 
 
 Hendricks v. Compton, 14, 15 
 
 Hendricks, by, &c. v. Fields, 583, 1029 
 Hendrick's Adm're. Hopkins, 231 
 
 Hendrickson v. Evans, 79 
 
 Hendrickson v. Hinckley, 28, 29 
 
 Hendrickson v. Van Winkle, 28 
 
 Henkle's Ex'x v. AU's Adm'r, &c., 976 
 Henly v. Dinwoody, 94 
 
 Henning v. Winans, 28 
 
 Henry v. Brown, 346 
 
 Henry et als v. Davis, 605, 872, 899 
 Henry v. Graves, 560 
 
 Henry v. Stone, 488 
 
 Henry & BlaokweU v. Ould & Car- 
 
 rington, 91, 188 
 
 Henson v. Watts, 340 
 
 Hepburn's Case, 84 
 
 Hercy v. Dinwoody, 95, 125 
 
 Herndon v. Kimball, 1044 
 
 Herndon v. Swearenger, 651 
 
 Herring et als v. Wickham and Wife 
 
 et als, 112, 549, 550, 561, 573, 575, 578 
 Herron v. Marshall, 1188 
 
 Hershee v. Hershey, 835 
 
 Hersey v. Veazie, 186 
 
 Hershfield v. Claflin, 662 
 
 Hess V. Dilas, 986 
 
 Hess V. Gate, 589 
 
 Hess et al v. Eader, &c., 1150, 1169 
 Hestoriville Co. v. Shields, 63 
 
 Heth V. E. F. & i>. E. E. Co., 952 
 
 Hevener v. McClung, % 43 
 
 Hewitt's Adm'r v. Adams et als, 761 
 Hewitt V. Kuhl, 30 
 
 Heyer v. Pruyn, 87 
 
 Heywood?;. Covington' s Heirs, 391, 1197 
 Hibbard v. Eastman, 29 
 
 Hibben v. Soyer, 559 
 
 Hickam i;. Larkey, 244 
 
 Hickerson's Adm'r v. Helm, 470, 774 
 Hickman v. Painter, 60, 343, 344 
 
 Hickman v. Stout, 72, 82, 84 
 
 Hickman v. Trout, 572 
 
 Hicks V. Eoanoke Brick Co. , 
 
 560, 1080, 1217 
 Hicks J). Eiddick et als, 635, 1063 
 
INDEX TO CASES CITED. 
 
 LVII 
 
 Hickook V. Scribner, 
 
 Hicks V. Skinner, 
 
 Hickson v. Eucker, 
 
 Hiem v. Mile, 
 
 Hiett V. Shull, 
 
 Higgina v. Kusterer, 
 
 Higgins et als v. Woodward, &c., 
 
 Higginbotham v. Brown, 
 
 223 
 552 
 
 1185 
 282 
 607 
 
 1010 
 457 
 828 
 369 
 973 
 146 
 641 
 186 
 
 Higginbotham v. Burnet, 
 Higginbotham v. Comwell, 
 HigUand v. Highland, 
 Hightower v. Slaton, 
 Hightower v. Thornton, 
 Hiidreath v. Turner, 
 
 1163, 1173, 1188, li90, 1198 
 Hill V. Bowie, 459 
 
 HiU et als v. Bowyer et als, 
 
 27, 268, 354, 355, 687, 690, 
 698, 795, 1183 
 Hill V. BuU, 488 
 
 Hill V. Chapman, 422 
 
 HUl V. Chicago & E. E. E. Co., 1237 
 Hill V. Freeman, 557, 1002 
 
 Hill's Ex' or v. Fox's Adm'r, 819 
 
 HiU' 8 Adm'r v. HHl, 267, 270, 272 
 HOI V. Maury, 356, 359 
 
 HUl V. McNeUl, 30, 43 
 
 HUl V. MendenhaU, 154, 155 
 
 HUl V. Morehead, 1155 
 
 HUl V. Mauser, 1144 
 
 HUl V. Postley, 797 
 
 Hill and Wife v. Proctor, 142, 228, 79^ 
 HiU V. Eixey, &c., 
 
 1050, 1052, 1061, 1064, 1065 
 ■ HiU V. Tucker, 926 
 
 HUl V. Umberger, 91 
 
 HUL V. Woodward, 38, 831 
 
 Hills V. Exchange Bank, 484 
 
 HUls V. Parker, 524 
 
 HUlary v. WaUer, 87, 88 
 
 HiUeary, &e. v. Thompson, 813, 1177 
 HiUisv. HamUton's Adm'r, 97, 125, 137 
 HUton V. Dickinson, 1259 
 
 HUton V. Guyot, 924 
 
 Himan v. Thom, 100, 110, 550, 572 
 Hinchman, Adm'r, v. Ballard, 
 
 Adm'r, 190, 381 
 
 Hinchman v. Maurise, 1144 
 
 Hinckley v. GUman, &c., E. E. 
 
 Co., 1225 
 
 Hinde's Lessee v. Longworth, 107 
 
 Hines v. Perkins, Trustee, 988 
 
 Hines & Hobbs v. Eawson, 55 
 
 Hinkley, &c. v. Black, 940 
 
 Hinton v. Bland, 160, 239, 305, 427 
 Hipkins v. Bernard, 721, 770 
 
 Hipp el al v. Babin, 65, 72 
 
 Hitchcock V. Hitchcock, 142, 239 
 
 Hite'a Ex' or v. Paul's Heirs, 855, 866 
 Hoback v. MUler, 589 
 
 Hobart v. Abbot, 199, 227 
 
 Hobart v. Andrews, 172 
 
 Hobbs V. Shumate, 802 
 
 Hobson V. Watson, 1070 
 
 Hobson V. Whitlow, 1036 
 
 Hobson V. Yancey et als, 
 
 779, 857, 1085, 1136 
 Hockman v. Hockman, 259, 914, 1066 
 Hockman v. McClanahan, 1024 
 
 Hodges V. Mullikin, 354 
 
 Hoe et al v. WUson, 239 
 
 Hoffman v. Hoffman, 153 
 
 Hoffman v. Livingston, 439 
 
 Hoffinan v. Eyan, 847 
 
 Hoffman v. Shields, 222 
 
 Hoffmireu Hoffinire, 332 
 
 Hogan V. Duke et al, 
 
 195, 233, 439, 471, 472, 476, 
 
 858, 1157, 1158, 1161 
 Hoge V. Jenkins, 380, 1156 
 
 Hoges Adm'r !). Vintrony, 126,762 
 
 Hogg V. Dowes, 205 
 
 Hoggart V. Cutts, 44 
 
 Hoke V. Henderson, 110 
 
 Hoke V. Hoke, 718 
 
 Holcomb V. Purcell, 167 
 
 Holcomb V. Eives, 92 
 
 Holden v. Peace, 311 
 
 Holderby v. Blum, 1036 
 
 Hole V. Harrison, 230 
 
 HoUand v. HoUand, 342 
 
 HoUand and Wife v. Trotter, 
 
 15, 16, 263, 348, 349 
 HoUida v. Shoop, 952 
 
 HoUiday and Wife v. Coleman, &c., 882 
 HoUing V. Cabell, 1015 
 
 HoUing, Brokenhoff & Co. v. CabeU, 
 
 571, 1014 
 HoUingsworth v. Lupton, &c. , 
 
 597, 599 
 HoUins V. Patterson, 693 
 
 HoUis V. Francois, 1092 
 
 HoUister v. Goodale, 631 
 
 Holmes, &c. v. Holmes, &c., 467, 1174 
 Holmes, &c. v. Eamsen, 
 
 386, 671, 831, 882 
 Holmes v. Stateler, 28, 30 
 
 Holt V. Taylor, 695 
 
 Holt V. WUliams, 969 
 
 Home Ins. Co. v. Howell, 56 
 
 Homestead Cases, 966 
 
 Honores v. BakeweU, 986 
 
 Hood V. Fahnestock, 1058 
 
 Hood V. Liman, 275 
 
 Hood V. State, 153, 154 
 
 Hood V. The N. E. E., 29 
 
 Hooe V. Marquess, 892 
 
 Hook V. Payne, 734 
 
 Hoomes v. Smock, 436 
 
 Hooper v. Hooper, 699, 712, 724 
 
iTin 
 
 INDEX TO CASES CITED. 
 
 Hooper v. Eoyster, 
 
 239, 240, 750, 753, 755, 757 
 Hooper v. Welch, 1070, 1071 
 
 Hoover v. Calhoun, 946 
 
 Hoover v. Donnally, 227, 397, 1038 
 Hope V. Hayley, 1012 
 
 Hopewell v. Bank, &c., 1145 
 
 Hopkins v. Coburn, 247 
 
 Hopkins v. Hopkins, 117 
 
 Hopkirk v. Eandolph, 107, 556 
 
 Hord's Adm'r v. Colbert et als, 
 
 430, 797, 798, 893, 1057 
 Hord V. Dishman, 17 
 
 Horder v. Horder, 547 
 
 Horn V. Lockhart, 727, 729 
 
 Horn V. Perry et al, 500 
 
 Horn V. Starr Foundry, 79 
 
 Homer v. Doe, 51 
 
 Hornsby v. Lee, 11 
 
 Horrell v. McAlexander, 595 
 
 Horseley et al v. Garth et al, 
 
 917, 1028, 1047, 1050, 1053 
 Horsely u E. & A. E. E. Co., 486, 584 
 Horton et als v. Bond, 
 
 195, 197, 229, 290, 859, 864, 
 
 975, 1155, 1202 
 Horton ti. Champlin, 1071 
 
 Horton v. Smith, 436 
 
 Hoshale v. Hoshale, 330 
 
 Hotchkiss V. Fitzgerald P. Co., 60 
 
 Hotchkiss V. Plaster, 324 
 
 Houck V. Dunham, 116 
 
 Hough V. Harvey, 720 
 
 Hough II. Horsey, 701 
 
 Hough V. Shreeve, 449, 451, 498 
 
 Houghton V. Graybill, 477 
 
 House V. Dexter, 228 
 
 House et als v. Mullen, 
 
 369, 372, 381, 402 
 Houseal v. Gibbs, &c., 1163 
 
 Houston V. Blockman, 572 
 
 Houston V. Smith, 30 
 
 Houston V. Wolcott & Co., 29 
 
 Hovendon v. Lord Annesly, 80, 122 
 How V. Ward, 107 
 
 Howard, In the matter of, 847 
 
 Howard v. First Nat'l Bank, 292 
 
 Howard v. Harris, 122, 123, 995, 996 
 Howard v. Stephenson, 146, 840 
 
 Howe V. Lawrence, 955 
 
 Howe V. MarteU, 30, 58 
 
 Howe, Knox & Co. v. Ould & Car- 
 
 rington, 670 
 
 Howe V. Sheppard, 23 
 
 Howe V. Van Schaick, 167 
 
 Howell V. Ashmore, 375 
 
 Howell V. Harvey, 142, 215 
 
 Howell V. Sevier, 488 
 
 Howery v. Helms, 309, 310, 1164 
 
 Howey v. Goings, 304 
 
 Howland v. Shurtleff, 1054 
 
 Hoy V. Hughes, 131 
 
 Hoye V. Penn, 488 
 
 Hoyt V. Gelston, 507 
 
 Hubbard, In re, 247 
 
 Hubbard v. Goodwin, 851 
 
 Hubbard v. Jarrell, 474 
 
 Hubbard v. McNaughton, 1006 
 
 Hubbell V. Savings Bank, 934, 939 
 
 Hubble D.Cole, 511 
 
 Huckenstine's Appeal, 465 
 
 Hudgins v. Hudgins Ex' or, 
 
 847, 1188, 1191 
 Hudgins v. Lanier Bros. & Co. , 
 
 286, 473, 474, 1177, 1195 
 Hudgins v. Marchant, 1189, 1194, 1196 
 Hudson V. Dismukes, 1145 
 
 Hudson V. Hudson, 319, 442 
 
 Hudson I'. Hudson's Adm'r, 
 
 82, 127, 7L4, 892 
 Hudson V. Kline, 
 
 23, 24, 31, 32, 71, 73, 260, 265 
 Hudson et al v. Putney et al, 305 
 
 Hudson V. Waugh, 475 
 
 Huey's Appeal, 548 
 
 Huff V. Thrash, 267, 270, 722, 856, 858 
 Huflinan v. Collison's Adm'r, &c., 442 
 Huffman v. Fleming, 979 
 
 Hugg V. Brown, 29 
 
 Hughes V. Epling, 563, 565 
 
 Hughes V. Blake, 386 
 
 Hughes V. Edwards, 123, 993 
 
 Hughes & Co. V. Hamiltftn, 1103, 1188 
 Hughes and Wife v. Johnston, 222, 853 
 Hughes et als v. Harvey, 697 
 
 Hughes V. Pledge et als, 461, 470, 642 
 Hughes v. Trustees, &c. , 181 
 
 Hughes V. United States, 381, 401 
 
 Hughson «. Mandeville, &c., 81 
 
 Hugunin v. Dewey, 548 
 
 Huidekoper v. Locomotive Works, 
 
 532, 583 
 Hulings V. Hulings Lumber Co., 
 
 578, 695 
 Hull V. Canover's Ex'ors, 560 
 
 HuUt). Fields, &c., 246 
 
 Hull V. Hull, 152, 161, 859, 1016, 1030 
 Hull's Adm'r v. Hull's Heirs, 117, 815 
 Hull V. Watts, 1187 
 
 Hulme V. Tenant, 1103 
 
 Humbert v. Eector of Trin. Ch., 84 
 Hume V. Beale's Ex'x, 94 
 
 Hume V. Condon, 557, 1138 
 
 Humes v. Scruggs, 442 
 
 Humiston v. Stainthorp, 820 
 
 Humphrey v. Buller, 207 
 
 Humphrey v. Hitt, 489 
 
 Humphrey v. Leggett, 55 
 
 Humphrey's Adm'r v. McClena.- 
 chan's Adm'r, 228 
 
INDEX TO CASES CITED. 
 
 LIS; 
 
 Humphrey v. State, 70 
 
 Hunt V. Bridgham, &c., 87, 89 
 
 Hunt V. Hunt, 153 
 
 Hunt V. WUkinson, 261 
 
 Hunter v. Butcher, 365 
 
 Hunter i;. Fulcher, 791,793 
 
 Hunter" s Ex' ors v. Hunter et al, 
 
 102, 106, 110, 111, 572, 573 
 Hunter's Adm'r v. Jett, 277, 488 
 
 Hunter v. Kennedy, 360 
 
 Hunter v. Lawrence's Adm'r, 744, 753 
 Hunter v. Martin, 1239 
 
 Hunter v. Robinson, Adm'r, 344 
 
 Hunter v. Spotswood, 151, 253, 836 
 Hunter v. White and Butcher, &c. , 365 
 Hunters v. Waite, 106, 107, 108, 110 
 Huntington v. NichoU, 61 
 
 Hupp V. Hupp, 22, 24, 25, 26 
 
 Hurd, &c. V. Everett, 350 
 
 Hum V. KeUer, 287, 1085, 1087, 1091 
 Hurst V. Dulany, 1065 
 
 Hurt V. Jones, 1199 
 
 Hurt V. Miller, 475, 476, 1187 
 
 Hurt V. Prillman, 552, 932, 950 
 
 Hurt V. West, 381, 401, 682 
 
 Hussey v. Thornton, 1002 
 
 Huston's Adm'r II. CantrUl, 
 
 222, 549, 550, 551 
 Hutcheson v. Grubb, 114, 844 
 
 Hutcherson, &c. v. Pigg, 
 
 163, 210, 231, 239, 746, 779 
 Hutchins v. Hope, 127 
 
 Hutching v. Masterson, 941 
 
 Hutchings i;. Commercial Bank, 
 
 1097, 1119 
 Hutchinson v. Boltz, 573 
 
 Hutchinson v. Ford, 570, 1017 
 
 Hutchinson v. KeUam, 107, 1219, 1221 
 Hutchinson v. Landcraft, 452, 501 
 
 Hutchison v. Boltz, 103 
 
 Hutchison v. Mershon, 267, 270 
 
 Hutsonpiller v. Stover, 87, 114, 492 
 
 Hutton V. Lockridge, 885 
 
 Hyde v. Barney, 778 
 
 Hyde V. Nick, 69 
 
 Hyman, Moses & Co. v. Smith et als, 
 
 353, 699, 1197 
 Hyslop V. Powers, 169 
 
 laege v. Boissieux, 474, 972, 1080 
 
 Idley V. Bowen, 167 
 
 Ingles V. Strauss, 500 
 
 Ingraham v. Began, 84 
 
 Ingram v. Morris, 973 
 
 Inhabitants of Watertown v. Mayo, 464 
 Insurance Co. v. Barle/s Adm'r, 259 
 Insurance Co. v. Brune's Assignee, 391 
 Insurance Co. v. Eldridge, 981 
 
 Insurance Co. v. Maury, 975 
 
 Insurance Co. v. Stinson, 959 
 
 Insurance Co. v. Woodruff, 959 
 
 Irby V. Wilson, 152 
 
 Ireland v. Emmerson, 401 
 
 Irick V. Black, 29 
 
 Irick V. Fulton, 1137 
 Iron Belt B. & L. Ass'n v. Groves, 1028 
 
 Irvin V. Dixon, 456, 463 
 
 Irvine v. Dunham, 471 
 
 Irvine v. Greever, 952, 953 
 
 Irvine u. Lumberman's Bank, 659 
 
 Irving V. Hurlburt, 335 
 
 Isler and Wife v. Grove, &c., 892 
 
 Jackson v. Andrews, 1091 
 
 Jackson v. Arnold, 493 
 
 Jackson v. Ashton, 260, 273 
 
 Jackson' s Assignees v. Cutwright, 
 
 276, 445, 875 
 Jackson v. Edwards, 1186 
 
 Jackson v. French, 378, 379 
 
 Jackson v. Hull 85, 1088 
 
 Jackson v. Jackson, 153, 721, 734, 757 
 Jackson's Adm'r !). King's Adm'r, 94 
 Jackson v. King' s Per. Rep. , 97, 216 
 Jackson v. Seward, 107 
 
 Jackson v. Pierce, 87 
 
 Jackson's Adm'x, &c. v. Turner, 
 
 70, 139, 309, 852 
 Jacobs, Ex parte, 489 
 
 Jacobs v. Hill, 845, 881 
 
 Jacobs V. Laybom, 797 
 
 James R. & K. Co. v. Anderson, 
 
 485, 584 
 James R. & K. Co. v. Littlejohn, 
 
 132, 142, 152, 157, 237, 648, 704, 920 
 James v. Bird' s Adm' r, 
 
 79, 282, 283, 577, 983, 989 
 James v. Life, 290, 880, 1147 
 
 James v. MoKemon, 276, 280, 442 
 
 James v. MoCormack, 1259 
 
 James v. Upton, 973 
 
 Jameson v. Deshield, 33, 237, 240, 1258 
 Jameson v. Jameson, 130, 132, 821, 827 
 Jameson v. Rixey, 92, 1149, 1038 
 
 Jamieson v. Beaubien, 61 
 
 Jamison v. May, 29, 30, 43 
 
 Janey v. Latane, 178 
 
 Janney, &c. v. Barnes, 565 
 
 Janney et als v. Campbell's Adm'r, 698 
 Janney' s Ex' or v. Stephen' s Adm' r, 
 
 918, 1086, 1145 
 Janney v. Thome, 607 
 
 Jarechi v. Philharmonic Soc, 942 
 
 Jarrett v. Goodnow, 23, 26, 40 
 
 Jarvis v. Bassett, 1S6 
 
 Jarvis v. Brooks, 664 
 
INDEX TO CASES CITED. 
 
 Jarvis ij. Wilson, 1141 
 
 Jason V. Toulmin, 92 
 
 Jeffries V. Evans, 23 
 
 Jeffries t). Southwest Va. Imp. Co., 572 
 Jelineau v. Jelineau, 337 
 
 Jenkins v. Listen, 600 
 
 Jenkins v. McNaU, 964, 968 
 
 Jenkins v. McCurdy, 934 
 
 Jenkins, &c. v. Waller, &c., 500 
 
 Jenkyn v. Vaughan, 110 
 
 Jenness v. The Bank, 1208 
 
 Jennings v. Jennings, 751, 758, 769 
 Jennings v. Merton College, 446 
 
 Jennings v. Shacklett, 954 
 
 Jennison v. Hapgood, 618 
 
 Jerome v. McCarter, 196 
 
 Jerome v. Eoss, 63, 461 
 
 Jerrard v. Saunders, 409 
 
 Jesse V. Parker, 603, 606 
 
 Jeter v. Langhome, 511, 791 
 
 Jeter v. Talliaferro, Stewart & Co. , 
 
 794, 796 
 Jincey et als v. Winfield's Adm'r, 
 
 86, 701 
 Johns V. Church, 696, 1022 
 
 Johnson v. Anderson, 278 
 
 Johnson v. Billups, 564 
 
 Johnson v. Brown, 272 
 
 Johnson et als v. Drummond, 
 
 181, 208, 213 
 Johnson v. Frear, 320 
 
 Johnson v. Harmon, 891, 899 
 
 Johnson v, Hendley, 892 
 
 Johnson v. Jackson, 161 
 
 Johnson v. Jennings, 881 
 
 Johnson v. Johnson, 
 
 11, 169, 282, 753, 760 
 Johnson v. Jones, 1139 
 
 Johnson v. Keitz, 873 
 
 Johnson v. Lines, 743 
 
 Johnson v. Lyon, 28 
 
 Johnson v. Mills, 488 
 
 Johnson, &c. v. Nat' 1 Ex. Bank, 
 
 1052, 1056 
 Johnson v. Noble, 595 
 
 Johnson v. E. L. & L Co., 67 
 
 Johnson v. Sharp, 1030 
 
 Johnson ti. Smith, 1196 
 
 Johnson v. Standard Co. , 94 
 
 Johnson v. Terry, 340 
 
 Johnson v. Toulwin, 80 
 
 Johnson, Trusteee, v. Wagner, &c., 
 
 573, 576, 577, 1139, 1154, 1159 
 Johnson v. Wilkins, 1218 
 
 Johnson, Trustee, &c. v. Wilson's 
 Adm' r et als, 
 
 86, 113, 140, 416, 440, 701 
 Johnson v. Young, 702 
 
 Johnston v. Corbett, 722 
 
 Johnston v. Gantry, 640 
 
 Johnston et al v. Gill et al, 
 
 108, 111, 136, 140, 554 
 Johnston v. Jones, 1257 
 
 Johnston v. Wilson, 119 
 
 Johnston v. Zane's Trustees, 
 
 107, 437, 556, 564, 642, 952 
 JoUand v. Stainbridge, 1055 
 
 Jones et als v. Abraham et als, 
 
 418, 419, 871, 896 
 Jones, &c. V. Anderson, 614, 634 
 
 Jones' Appeal, 722, 740 
 
 Jones V, Bank, 498 
 
 Jones V. Bradshaw, 
 
 32, 71, 72, 260, 325, 1261 
 Jones V. Christian, 430 
 
 Jones' Ex' ors v. Clark et als, 
 
 370, 408, 719, 727 
 Jones V. Clark, 382 
 
 Jones V. Clifton, 564 
 
 Jones' Adm'r v. Comers' Ex' or, 123 
 Jones V. Commercial Bank, 16 
 
 Jones V. Cunningham, 419, 425 
 
 Jones V. Damall, 340 
 
 Jones V. Degge, 230, 441, ^72, 694, 1203 
 Jones V. Detroit Chair Co., 941 
 
 Jones V. Gillespie, 983 
 
 Jones V. Green, 290 
 
 Jones V. Hardesty, 435 
 
 Jones ti. Hart's Ex' ors, 274 
 
 Jones V. Hobson, 816 
 
 Jones V. Janes, 441 
 
 Jones V. Johnson, 1082 
 
 Jones V. Jones, 240, 441, 809, 928 
 
 Jones V. Keith, 464, 486 
 
 Jones V. Lackland et als, 779 
 
 Jones V. Lucas, 794 
 
 Jones V. Lusk, 535 
 
 Jones V. MagUl, 498, 500 
 
 Jones V. Mason, Ex' or, Ac, 420, 875 
 Jones V. McGruder, 572 
 
 Jones V. McNarrin, 1046, 1090 
 
 Jones Co. v. Munger Iron Co., 1242 
 Jones V. Myrick' s Ex' ors, 
 
 918, 919, 977, 1067 
 Jones V. Parry, 589 
 
 Jones V. Pilcher, 357, 791 
 
 Jones V. Keid, 1101 
 
 Jones V. Richmond, 480 
 
 Jones et al v. Eoberts, 78 
 
 Jones V. Scott, 118 
 
 Jones V. Selby, 28 
 
 Jones V. Syer, 567, 1030 
 
 Jones «. Tatum, 223, 234, 237, 877, 1187 
 Jones «). Turbeville, 87 
 
 Jones V. Turner, 821 
 
 Jonea v. Williams, 732, 785 
 
 Jones V. Witter, 560 
 
 Jordan v. Buena Vista, 984 
 
 Jordan v. Eve, 1189 
 
 Jordan v. Liggon, 267, 1137 
 
INDEX TO CASES CITED. 
 
 Jordan v. Miller, 
 
 Jordin v. Laftin, 
 
 Joseph V. Pyle, 
 
 Jourdan v. Jourdan, 
 
 Judah V. Chiles, 
 
 Judson V. Gibbons, 
 
 Judson V. Eossie, Galena Co. , 
 
 126 
 
 30 
 
 648 
 
 1027 
 
 499 
 
 159 
 
 1076 
 
 155, 160 
 
 Judy V. KeUey, 
 Justis V. English et als, 
 
 81, 91, 99, 117, 1100, 1114 
 
 Kable v. Mitchell, 1177, 1189, 1200 
 Kahn v. Kerngood, 500, 506, 1211, 1213 
 Kahn v. Eorer Iron Co., 1182 
 
 Kain v. Gibbony, 178 
 
 Kanwaha Lodge v. Swann, 318, 322 
 Kane v. Bloodgood, 117, 118, 383 
 
 Kane v. Clouger, 1016 
 
 Kane v. Clough, 571 
 
 Kane v. Mann, 290, 364, 985, 1153 
 
 Kane v. O' Conners, 953 
 
 Kane v. Vandenburg, 456 
 
 Kansas Mfg. Co. v. Gandy, 1103 
 
 Katz V. Moon, 28 
 
 Kaufinan v. Crawford, 930 
 
 KauflSnan v. Walker, 1171 
 
 Kayser, Ex' or, v. Disher, 68 
 
 Keagy v. Trout, 
 
 586, 887, 889, 1117, 1123 
 Keck V. AUender, 982, 1251 
 
 Kee's Ex' or v. Kee's Creditors, 
 
 240, 717, 767, 770 
 Keep V. Sanderson, 563, 565 
 
 Keiffer v. Barney, 835 
 
 Keiser v. Lovett, 466 
 
 .Keitz V. High, 837 
 
 Keene v. Meade, 110, 803 
 
 Kehr v. Smith, _ 107, 578 
 
 Kekewick v. Manning, 560 
 
 Kellami). Sayer, 142 
 
 Keller's Appeal, 715 
 
 Kelly V. Board of Public Works, 401 
 KeUy V. Craig, 671 
 
 Kelly V. Kelly, 331 
 
 Kelly V. Linkenhoger, 650 
 
 Kelly et als v. Love's Adm'r, 178, 735 
 Kelly V. McGrath, 562 
 
 Kelly V. McQuinn, 92 
 
 Kellogg V. Lovely, 1016 
 
 Kelso V. Blackburn, 545, 613 
 
 Kelso V. Tabor, 1104 
 
 Kemp V. Pryor, 61 
 
 Kemp V. Squire, 840 
 
 Kempe's Lessee?;. Kennedy, 1190 
 
 Kemper v. Kemper, 562 
 
 Kendall, &c. v. Stockton & Stokes, 455 
 Kendrick v. Eggleston, 988 
 
 Kendrick et al v. Forney, 
 
 8, 763, 1144, 1145 
 Kendrick et als v. Whitney et als, 
 
 132, 134, 135, 189, 322, 353, 363, 
 655, 838, 859, 1155, 1156 
 Kenly v. Hudelson, 1092 
 
 Kennedy v. Baylor, 420, 441, 688 
 
 Kennedy v. Davis, , 172 
 
 Kennedy v. Earle of Cassilis, 52 
 
 Kenner v. Hoard, 493 
 
 Kennerly v. Swartz, 962, 1154 
 
 Keunerty v. Etiwan Pho. Co., 460 
 
 Kennej»«. Greer, 51 
 
 Kent's Adm'r v. Cloyd's Adm'r, 
 
 293, 392, 682, 855 
 Kent, Paine & Co. v. Dickinson, 
 
 Judge, 355 
 
 Kent V. Gerhard, 989 • 
 
 Kent's Adm'r v. Kent, &c., 276, 452 
 Kent V. Lyon, 546 
 
 Kent «. Matthews, &c., 1145,1261 
 
 Keran v. Price's Ex' or, 797 
 
 Kerbur v. Stansfield, 556 
 
 Kern v. Towsley, 1073 
 
 Kern, Barr & Co. u Wyatt, 358 
 
 Kerney's Adm'r 1). Kemey's Heirs, 343 
 Kerr v. Hill, 493 
 
 Kerr v. Kingsbury, 937 
 
 Kerr v. Eussell, 1026 
 
 Kerr et als v. Watts, 847 
 
 Kershaw v. Merchants Bank, 979 
 
 Kesner v. Trigg, 553 
 
 Kessler v. Draub, 962, 963, 1092 
 
 Kester v. Lynn, 368, 698, 705 
 
 Kevan v. Branch, 569 
 
 Kevau v. Waller, 740 
 
 Key's Ex'ors v. Lambert, 190, 226 
 
 Keyser v. Eenner, 142, 347 
 
 Keyser v. Eice, 54 
 
 Keystone Bridge Co. v. Summers 
 
 et al, 463 
 
 Keystone Iron Co. v. Martin, 1232 
 
 Keyston's Adm'r v. Bradford's 
 
 Ex' or, &c., 481 
 
 Kibbe v. Benson, 16, 46 
 
 Kiff V. Old Colony & N. E. E. Co., 634 
 Kilbreth v. Boot, 188 
 
 Kilbum V. Demming, 641 
 
 Killand v. Capriers, 70 
 
 Killian v. Ebbinghans, 61 
 
 Kimball v. Sattley, 1015 
 
 KimbaU v. Martin, 939 
 
 Kimbal v. Myers, 696, 1022 
 
 Kimberly v. Sells, 369 
 
 Kimm v. Weippert, 1099 
 
 Kincaid v. Cunningham, 14 
 
 Kincheloe v. Kincheloe, 
 
 234, 237, 432, 791 
 Kincheloe v. Tracewell, 1257 
 
 King, Adm'r, &c. v. Ashley, 222 
 
INDEX TO CASES CITED. 
 
 King V. Baldwin, 37, 61, 62, 488 
 
 King V. Burdett, 696, 1207 
 
 King V. Chase, 401, 402 
 
 King, The v. Greenhill, 340 
 
 King V. Levy, 1056 
 
 King's Ex'ors v. Malone et als, 
 
 419, 546, 722 
 King, The v. Manneville, 340 
 
 King V. Moore, 622 
 
 King V. Newman, 993 
 
 King «. Kobinson, 426 
 
 King V. State M. Ins. Co., 958 
 
 King V. Worthington, • 1125 
 
 Kingsbury v. Burnside, 1009 
 
 Kingsbury v. Flowers, 465 
 
 Kingsbury v. Whitacre, 608 
 
 Kinney's Ex'ors, &c. v. Harvey, 
 
 406, 685, 851 
 Kinney, Ex parte, 327 
 
 Kinnier v. Woodson, 572, 1137 
 
 Kinniard v. MUler, 178 
 
 Kinport v. Bawson, 480, 482 
 
 Kipp V. Hanna, 578 
 
 Kirby v. Goodykoontz, 729 
 
 Kirby v. Kirby, 337, 602 
 
 Kirby and Wife v. Taylor, &c., 388 
 Kirby v. Thompson, 349 
 
 Kirklan v. Brown, 982 
 
 Kirkland, Chase & Co. v. Brune, 
 
 559, 670, 1030 
 Kirkman v. Handy, 464 
 
 Kirkpatrick v. Love, 748 
 
 Kirwan v. Murphy, 1232 
 
 Kissam v. Edmundson, 110 
 
 Kisports V. Eanson, 833 
 
 Kitchen v. Deardoff, 87 
 
 Kitridge v. Emerson, 53 
 
 Kitten v. Bobbins, 28 
 
 Klee & Bro. v. Eeitzenberger, 565, 568 
 Kline v. Kline, 154 
 
 Knapp V. Snyder et al, 15 
 
 Knevan v. Specker, 559 
 
 Knibb' s Ex' or v. Dixon's Ex' or, 
 
 276, 891 
 Knifong v. Hendricks, 19, 50, 57, 58 
 Knight V. Capito, 572 
 
 Knight and Wife v. Oliver et als, 778 
 Knight V. Plymouth, 750 
 
 Knight V. Yarborough, 719 
 
 Knisely v. WUliams, 985, 986, 987 
 
 Knittelu Cushing, 1001 
 
 Knode v. Williamson, 791, 792, 794 
 Knott 'ii. Seamonds, 39 
 
 Knotts V. Stearns, 1188 
 
 Knonr v. Dick, ' 30 
 
 Knowles i). Houghton, 492 
 
 Knowles v. The Gaslight and Coke 
 
 Co., 153, 155 
 
 Knox V. Chadboume, 968 
 
 Knox V. Lee, 729 
 
 Knox V. Protection Lis. Co., 642 
 
 Koger V. Kane, 69, 473, 476 
 
 Koontz V. Northern Bank, 527 
 
 Korne v. Kome, 267, 271 
 
 Kraker v. Shields, 816 
 
 Kriser v. Eyan, 872, 1263 
 
 Kroeson v. Seevers, 995 
 
 Krouskop V. Shontz, 1105 
 
 Kuhn, Netter & Co. v. Hunter, Har- 
 ris & Co., 212 
 Kuhn, Netter & Co. v. Mack & Bros. , 482 
 Kusterer v. City of Beaver Dam, 1071 
 Kurner v. O'Neil, 569, 956 
 Kyle & Co. v. ConneUy, 625, 635, 661 
 Kyle V. Kyle, 322, 763 
 Kyles V. Ford, 250 
 Kyles V. Tait's Adm'r, 
 
 648, 859, 1159, 1160, 1161 
 Kyzer v. Sype, 1153 
 
 Lacon v. Briggs, 
 
 95 
 
 Lackland v. Davenport, 
 
 1005 
 
 Lacy V. Stamper, 
 
 716 
 
 Ladd V. Griawold, 
 
 535 
 
 Lady Pike, 
 
 1262 
 
 Lafferty v. Lafferty, 
 
 138 
 
 Laidly v. Henchman, 
 
 1158 
 
 Laidly v. Kline, 114, 116, 117, 163 
 
 287, 293, 425, 698, 879, 1146 
 Laidly v. Kjiight, 1024 
 
 Laidly v. Land Co., 1092 
 
 Laidley v. Merrifield, 135, 351, 353, 868 
 Laight V. Morgan, 369 
 
 Laird t). Wilder, 467 
 
 Lake Nat' 1 Bank v. Wbldeborough 
 
 Bank, 1242 
 
 Lake v. Tyree, 476, 477 
 
 LaUance v. Fisher, 474 
 
 Laman v. Hall, 576, 1034, 1036 
 
 Lamb v. Kelly, 28 
 
 Lambert v. Crystal Springs Co., 476, 480 
 Lambert v. Ensign Mfg. Co., 140, 246 
 Lambert v. Jones, 
 
 263, 347, 614, 624, 1075 
 Lambert v. Nanny, 228, 1038 
 
 Lamberts v. Cooper' s Ex' or, 
 
 430, 603, 605, 894 
 Lament v. W, & G. R. E. Co., 1070 
 Lancaster v. Barton, 587, 696 
 
 Lancaster v. Lancaster, 827 
 
 Lancaster v. Wilson, 51, 920 
 
 Lancing v. North Eiver Co., 465 
 
 Land v. Jeflries, 568, 577 
 
 Land v. Wickham, 134, 361 
 
 Landeman v. Wilson, 563, 564 
 
 Lane v. EUzy, 386, 389 
 
 Lane v. King, 944, 1048, 1196 
 
 Lane v. Tidball, 1156 
 
INDEX TO CASES CITED. 
 
 Lang, Ex parte, 51 
 
 Lang V. Lee, 561, 563, 564 
 
 Lang V. Smith, 1046 
 
 Langabier v. Eailroad Co. , 447 
 
 Lange v. Jones, 69 
 
 Langhyer v. Patterson, 1183, 1195 
 
 Langston i>. Boylston, 44 
 
 Lanuing v. Carpenter, 921 
 
 Lanedale v. Smith, 83, 84 
 
 Lansing v. Eussell, 901 
 
 Lasere v. Eochereau, 830 
 
 Lashley v. Hogg, 363, 891 
 
 Latham's Appeal, 1248 
 
 Latham v. Latham, 328, 330, 335, 
 
 338, 340, 342, 429, 790 
 Latham v. Sumner, 1005 
 
 Latta V. Granger, 1227 
 
 Lau Ow Ben, 1233, 1234, 1235 
 
 Lauer v. Bandow, 946, 1097 
 
 Laughlin Bros. & Co. v. Fream, 1102 
 LaveU v. Gold, 891, 894, 902, 903, 904 
 Lavell V. McCurdy, 51 
 
 Law V. Law, 357 
 
 Lawrence v. Bolton, 352 
 
 Lawrence v. Hunt, 400 
 
 Lawrence v. Smith, 70 
 
 Lawrence v. Swann, 304 
 
 Lawsing v. Albany Ins. Co., 359 
 
 Lawton v. Lawton, 938 
 
 Lawton u. Salmon, 938 
 
 Lazzell v. Garlow, 460 
 
 Laybom v. Crisp, 804 
 
 League v. Brennan, 720 
 
 Leake v. Benson, 952, 1095, 1104 
 
 Leake i). Ferguson, 979, 1060, 1136, 1137 
 Leake's Ex'ors v. Leake et als, 
 
 126, 295, 725, 762, 764, 1205 
 Leake v. Leake, 126 
 
 Lea's Ex' ors «i. Eidson, 418 
 
 LeaveU v. Eobinson, 993, 995 
 
 Ledyard v. Butler, 1054 
 
 Lee J). Bank of U. S., 553 
 
 Lee's Ex'or v. Boak, 898 
 
 Lee V. Feamster, 701 
 
 Lee County v. Fulkerson, 680 
 
 Lee V. Hassett, 955 
 
 Lee V. PatiUo, 600 
 
 Lee V. Stone, 949 
 
 Lee V. Stuart, 295 
 
 Lee V. Swepson, 880, 1169, 1188, 1199 
 Lee V. Watson, 1'226, 1227 
 
 Lees V. Braxton, 355 
 
 Lefevre's Appeal, 952 
 
 Leftwich v. Neal, 1025 
 
 Leftwich v. StovaU, 258 
 
 Leggett V. Dubois, 953 
 
 Le Grand v. Fitch, 724 
 
 Le Guem v. Gouvemier, &c., 29, 30 
 Legro V. Ijord, 559 
 
 Lehigh Zinc Co. v. Banford, 477 
 
 Lehman v. Hinton, 828 
 
 Leigh V. Thomas, 158, 287 
 
 Leighton v. The Comnionwealth, 1219 
 Leighton v. Leighton, 302 
 
 Leith's Adm'r I'. Carter's Adm'r, 86 
 Lemon v. Hansbarger, 192, 745 
 
 Le Neve v. Le Neve, 1055, 1056, 1057 
 Lennox v. Netrebe, 514 
 
 Lenows v, Lenow, 168, 655 
 
 Leonard v. Brooklyn City, 1080 
 
 Leonard v. Putnam, 739 
 
 Le Eoy, &c. o. Veeden, 73, 369 
 
 Leroy v. Wilmarth, 107 
 
 Lester v. Hoskins, 30 
 
 Lester v. Lester, 556 
 
 Levy V. Sup. Court San Francisco, 1231 
 Lewis' Ex'or v. Bacon's Legatee, 
 
 &c., 86, 442 
 
 Lewis V. Berry viUe L. & 1. Co., 
 
 476, 1075 
 Lewis et als v. Caperton' s Ex' or et 
 
 als, 554, 555, 561, 562, 563, 568, 675, 
 973, 985, 987, 1065, 1067 
 Lewis V. Glenn, 185, 1076, 1078 
 
 Lewis V. Hawkins, 117 
 
 Lewis V. Laidely, 289 
 
 Lewis V. Lon^, 1209, 1212 
 
 Lewis V. Madiaons, 221 
 
 Lewis u. Mason, 428,712. 
 
 Lewis V. MoCale, 1001 
 
 Lewis V. McFarland, 161 
 
 Lewis et als v. Overby's Adm'r, 
 
 229, 547, 576, 779, 1085 
 Lewis, Eeceiver, &o. v. Eoster, 933 
 
 Lewis D. Patton, Trustee, 345 
 
 Lewis v. Spencer, 469, 482 
 
 Lewis V. Thornton, 168, 875 
 
 Lewis et als v. W. & O. E. E. Co., 532 
 Liberty Savings Bank v. Campbell, 
 
 698, 957 
 Liberty Savings Bank o. Otter View 
 
 L. Co., 1078 
 
 Lichfield V. The Eegister, 483 
 
 Liggon V. Smith, 444 
 
 Light V. Short, 481 
 
 Lightner v. Speck, 779 
 
 Ligon V. Ford, 593, 600 
 
 Lincoln's Adm'r v. Stem & Wife, 
 
 738, 761, 855 
 Lynchburg Iron Co. v. Taylor, 239 
 
 Lindeman v. Eosenfield, 488 
 
 Lindsay v. Jackson, 23, 29 
 
 Lindsay v. Murphy, 961 
 
 Lindsey v. Corkery & Milward, 665 
 
 Lindsey v. Howerton, . 720 
 
 Lingan v. Henderson, 276, 281, 435 
 Lingle et als v. Cook's Adm'r, 
 
 726, 727, 830, 841 
 Linke & Klepper v. Fleming, 22 
 
 Linkenkoker v. Detrick, 966 
 
INDEX TO OASES CITED. 
 
 Linn et als, Trustees, v. Carson's 
 
 Adm'r, 345 
 
 Linn v. Patton, Trustee, 196, 287 
 
 Linney's Adm'r 2). Dare's Adm'r, 303 
 Linsey v. McGamion, 289 
 
 Lipscomb's Adm'r i). Davis, 1067, 1068 
 Lipscomb v. Eogers et als, 189, 1155 
 Lipsky V. Borgmann, 939 
 
 Lishy V. Perry, 559 
 
 Lishoflf V. Hart, 952 
 
 List V. Pumphrey et al, 172 
 
 Litchfield v. White, 565 
 
 Litowich V. Litowich, 151 
 
 Literal v. Jackson, 1085 
 
 Literary Fund v. Dawson, 178, 179 
 
 Little V. Bowen, 167 
 
 Little V. Bunce, 1261 
 
 Little V. Bunce, 982 
 
 Little V. Cozard, 343 
 
 Little V. Dusenberry, 523 
 
 Little & Telford v. Brown, 984 
 
 Littlejohn v. James K. & Kan. Co., 654 
 Littlefield v. Perry, 467 
 
 Livesay v. Feamster, 188, 497, 500, 686 
 Livesay v. Helms et als, 117 
 
 Livesay v. Wilson, 444 
 
 Livingston v. Gibbons, 465, 5(^ 
 
 Livingston v. Hull, &c. , 359 
 
 Livingston v. Livingston, 61, 369, 553 
 Livingston v. Ogden, &c. , 465 
 
 Livingston v. Penn. Iron Co., 200, 1184 
 Livingston v. Story, 380 
 
 Livingston v. Tompkins, 465 
 
 Livingston, &c. v. Van Ingen, 465 
 
 Livingston v. Woodsworth, 239, 372 
 Lloyd V. Brewster, 282 
 
 Lloyd V. Erwin's Adm' rs, 
 
 170, 528, 1168, 1189 
 Lloyd et al v. Fulton, 107 
 
 Lloyd V. Kyle, 130 
 
 Lloyd 0. Passingham, 516 
 
 Lockard & Ireland v. Berkley et als, 
 
 105, 565 
 Locke V. Commonwealth, 902 
 
 Lockridge v. Lockridge, 330, 338 
 
 Lockwood V. Bates, 1036 
 
 Lockwood V. HoUiday, 834, 882 
 
 Lockwood V. Nye, 636 
 
 Lockwood V. Wicks, 1242 
 
 Lodge V. Simonton, 1058 
 
 Loftus V. Maloney, 888 
 
 Logan V. ^ogan, 338 
 
 Lomax v. Picot, 495, 506, 826 
 
 Londons v. Echols, 222 
 
 Long V. Bicton, 320 
 
 Long V. Colston, 62 
 
 Long et als v. Hagerstown Agr"! 
 
 Imp. M'fg Co., 1032, 1064 
 
 Long's Ex' or et als v. Isreal et al, 
 
 69, 479, 876 
 
 Long V. Long, 334 
 
 Long V. Meriden Brittania Co, 569 
 
 Long V. Perine, 
 
 196, 793, 794, 795, 798, 799 
 Long V. Kamsay, 1025 
 
 Long V. Kyan, 618, 619, 620 
 
 Long et alst). Welter's Exo'or, &c., 
 
 223, 859, 1159, 1160, 1185, 
 1186, 1187, 1199 
 Longman v. Calliford, 349 
 
 Lonvalle ti. Menard, 309, 311 
 
 Loonie v. Hogan, 1080 
 
 Loop V. Summers, 211, 489, 616, 620 
 Loughran v. Boss, 937 
 
 Love, &o. V. Baker, 52 
 
 Love V. Braxton, &c. , 909 
 
 Love V. Tineley, 547 
 
 Love V. Pickens, 1216 
 
 Lovell V. Arnold, 881 
 
 Lovell V. Chilton, 502 
 
 Lovet V. Thomas, 715, 722, 732, 764, 765 
 Lovingston' s Ex' ors v. Lovingston, 73 
 Low V. Pew, 1017 
 
 Lowe V. Trundle, - 476 
 
 Lozier' s Ex' or v. Van Saun' s Adm'rs, 61 
 Lucadot). Tutwiler's Adm'x, 1048, 1050 
 Lucas V. Campbell, 1005 
 
 Lucas, &c. D. Clafflin & Co., 569, 1053 
 Lucas V. Waul, 63 
 
 Luce V. Snively, 1201 
 
 Ludington v. Handley, 15 
 
 Ludington v. Tiffany, 438, 502 
 
 Luddington v. Hull, ' 653 
 
 Ludlow V. Greenhouse, 168 
 
 Ludlow V. Bamsey, -829, 1190 
 
 Ludlows V. Simond, 70 
 
 Lunsford v. Bostion, 694 
 
 Lunsford v. Smith, 598 
 
 Lush V. Wilkinson, 107 
 
 Lyday v. Douple, 28 
 
 Lyle V. Commercial Bank, 514 
 
 Lyman v. Fiske, 618 
 
 Lyman v. Thompson, 168 
 
 Lymbrick v. Selden, 1219, 1221 
 
 Lynchburg By. Co. v. Dameron, 483 
 Lynchburg Ins. Co. v. Tayloe, 142, 171 
 Lyne v. Jackson, &o. , 208 
 
 Lyon V. Hunt, 460 
 
 Lyon V. Lyon, 152 
 
 Lyon V. McGuffey, 1080 
 
 Lyon's Adm'r J). Magaganos, 734 
 
 Lyons v. Miller, 324, 423, 440 
 
 Lyttle 1). Cozad, 1167 
 
 M 
 
 Macaulay's Ex' or v. Dismal Swamp 
 
 Land Co., 94, 97, 972 
 
 MacCutchen v. Ingraham, 959 
 
 Mackenzie v. Johnston et al, 67 
 
INDEX TO CASES CITED. 
 
 Mackey v. Bell, 
 Mackie v. Smith, 
 Mackreth v. Simmons, 
 Maddock v. Skinker, 
 Maddox V. White, 
 
 355 
 935 
 1148 
 662 
 459 
 
 Machir's Ex'ors v. Machir's Devi- 
 sees, 25 
 Mackall v. Eichards, 1263 
 Mackreth v. Symmons, 986 
 Macon v. Nelson, 23 
 Maddock v. Skinker, 691, 695 
 Maddox v. Sullivan, 1172 
 Maddox v. White, 456, 459 
 Magahe v. Draper, 960 
 Magarity v. Moore, 695 
 Magarity v. Shipman, 694 
 Magarity v. Succop, 695 
 Magawl/s Trust, 110 
 Magill V. Manson, 625 
 MagUl V. Sauer, 645, 1251 
 Magruder v. Godwyn, 745 
 Magruder v. Peter, 960 
 Magruder v. Williams, 745 
 Magniac v. Thompson, 550, 561 
 Magrath v. Magrath, 329 
 Maguire iiAMaguire, 152, 338 
 Mahake v. Neale, 889 
 Mahany v. James, 963, 969, 972 
 Mail Co. V. Flanders, 260 
 Majors v. Everton, 554 
 Major V. Ficklin, 141 
 Makepeace v. Haythom, 236 
 Makepeace v. Eogers, 67 
 Malendy & Eussell v. Barbour, 523 
 Malin v. Malin, 226 
 Mallack v. Galton, 138 
 Malloney v. Horan, 548 
 Malones' Adm'r et als v. Hobb et 
 
 als, 234, 432, 603 
 Manchester Bank v. Bartlett, 490 
 Manchester Cotton Mills v. Man- 
 chester, 461 
 Mandeville et als v. Eiggs, 852 
 Man V. Warner, 118 
 Mangus v. McClelland, 475 
 Manly Mfg. Co. v. Broadus, 180, 1080 
 Manly v. Slason, 986 
 Mann v. Brenkley, 150 
 Mann v. Buford, 622 
 Mann v. Drewry, 16 
 Mannan v. Merritt, 559 
 Manns v. Flinn'g Adm'r, 164, 857, 1154 
 Manns v. Givens, 1051 
 Mansfield v. Dameron, 986, 988 
 Mantz V. Hendley, 248, 614, 635, 656 
 Manufacturing Co. v. Bradley, 185 
 Manufacturing Co. v. Trainer, 468 
 Marble Co. v. Eipley, 491, 534 
 Marbury v. Brooks, 106 
 Marbury v. Madison, 455 
 E 
 
 Marbury v. Thornton, 480 
 
 March, Price & Co. v. Chambers, 
 
 1032, 1063, 1066 
 Marion v. Tabry, 834, 841 
 
 Marine Ins. Co. v. Hodgson, 
 
 16, 28, 29, 46, 804, 1257 
 Markham v. Boyd, 46 
 
 Markham v. Guerrant, 642, 952 
 
 Markham v. Merrett, 664 
 
 Markle's Adm'r et als v. Burch's 
 
 Adm'r, 112, 658 
 
 Marks i>. Bryant, 605 
 
 Marks et als v. Hill et als, 283, 563, 565 
 Marks v. Morris, 433 
 
 Marling v. Eobrecht et al, 
 
 687, 1155, 1163, 1177, 1198 
 Marrion v. Tabry, 834, 841 
 
 Marroir v. Brinkley, 1186 
 
 Marr's Adm'r «. Miller's Ex' or, 841 
 Marsan v. French, 465 
 
 Marsh v. Oliver, 159 
 
 Marshall v. Beverly, 240, 350 
 
 Marshall et al v. Cross et al, 396, 1038 
 Marshall v. Frisbie, 793 
 
 Marshall v. HaU, 188 
 
 Marshall v. Marshall, 890 
 
 Marshall v. Means, 267, 272 
 
 Marshall v. Meech, 1070 
 
 Marshall v. Sears, 963 
 
 Marshall v. Thompson, 816, 892 
 
 MartseUer et als v. McClean, 86 
 
 Marstelleri). Weaver's Adm'r, 97,125 
 Marston v. Baldwin, 1002 
 
 Marston v. Harrison, 87 
 
 Martin, D. E., The, 1260 
 
 Martin v. Field, 1217 
 
 Martin v. Fielder, 738 
 
 Martin v. Hall, 22, 585, 858 
 
 Martin v. Hunters, 1239 
 
 Martin v. Lewis, 65 
 
 Martin d. Martin, 307, 595 
 
 Martin v. Pope, 1074 
 
 Martin v. Eellaham, 425 
 
 Martin v. Eexroad, 573 
 
 Martin v. Smith, 1191 
 
 Martin v. South Salem Land Co., 149, 
 
 183, 184, 185, 189, 253, 475, 476, 686, 
 688, 794, 800, 983, 1076, 1246, 1251 
 Martin v. Thayer, 608 
 
 Martin v. Welch, 872 
 
 Martyn tj. Com., 70 
 
 Martz V. Martz, 605 
 
 Marvin v. Hawley, 622 
 
 Maryland & N. Y. C. & I. Co. v. 
 
 Wingert, 428 
 
 Marx V. Fore, 153, 156 
 
 Maslin V. Hiett, 617 
 
 Mason v. Bridge Co., 
 
 356, 464, 485, 584, 831 
 Mason v. Gardener, 319 
 
LXVI 
 
 INDEX TO CASES CITED. 
 
 Mason v, Jones, 118 
 
 Mason v. Lord, 702 
 
 Mason v. Mason, 414 
 
 Mason v. Moyers, 1019, 1196 
 Mason v. Nelson, 15, 22, 23, 263, 849 
 
 Mason v. Peters, 919 
 
 Masonic Temple v. Banks, 463 
 
 Massey v. OilvUle, 248 
 
 Masseyv. Yancey, 550, 572 
 
 Massie v. Greenhow, 1055 
 
 Massie v. Heiskell, 35, 100, 101 
 
 Massie v. Mann, 500 
 
 Massie ti. Watts, 863 
 
 MassingiU. v. Dorns, 922 
 
 Master's v. Vamer" s, 881 
 
 Masterson v. Hemdon, 1224, 1260 
 
 Masterson v. Howard, 837 
 
 Mastin v. Gray, 154 
 
 Matchin v. Matchin, ' 332 
 
 Mathews v. Crockett, 572 
 
 Matthews v. Hall, 1144 
 
 Mathews v. Jenkins, 370, 381, 401 
 
 Mathews v. Smith, 87 
 
 Matson v. Field, 28 
 
 Matter of Hemiup, 695 
 
 Mattingly v. Boyd, 659 
 
 Mattingly v. Nye, 920 
 
 Maughan v. Blacke, 166 
 
 Maupin v. Dulany, 755 
 
 Maupin v. Whiting, 420 
 
 Maurice v. Devol, 467 
 
 Mauzy v. Mauzy, 952, 1100 
 Max Meadows Co. v. Brady, 476, 479 
 
 Maxwell v. Kennedy, 84 
 
 Maxwell v. Martin, 827 
 
 Maxwell v. Stewart, 648 
 
 May V. Armstrong, 303 
 
 Mayer v. Dry, 346 
 
 Mayer v. Gallanchat, 720 
 
 Mayer v. Kipp, 114 
 
 Mayer v. Taylor, 1015 
 
 Mayer v. Tyson, 417 
 
 Mayhew v. Clarke, 428 
 
 Mayne v. Griswold, 61, 84 
 
 Mayo II. Bentley, 17 
 
 Mayo V. Carrington, 127, 422, 1142 
 
 Mayo V. Cooper, 74 
 Mayo V. Murchie, 
 
 142, 221, 227, 235, 240, 241, 226 
 Mayo V. Tomkies, 198, 199, 279, 1202 
 
 Mayo V. Turner, 1219 
 
 Mayor, The, v. Cooper, 74 
 
 Mayor v. Eoot, 621, 622 
 
 M. C. S. M. Co. V. Mason, 483 
 
 McAden v. Keen, 932, 933, 979 
 McAlister v. Bodkin, 174, 1147, 1168 
 
 Mc Andrews v. CoUerd, 466 
 
 McBride f . McBride et als, 606 
 
 McBumey v. Carson, 727, 729, 738 
 
 McCaffi-ey v. Wooden, 570, 1017 
 
 McCartney v. Potomac Electric 
 
 Works, 86 
 
 McCall V. Graham, &c., 359, 896 
 
 McCaU V. Peachy, 
 
 296, 714, 719, 770, 819 
 McCance v. Taylor, 1064 
 
 McCandlish's Adm'r, &c. v. Edloe 
 
 et als, 687, 791, 799 
 
 McCandlish v. Keen, 989, 1034, 1086 
 McCarthy v. Provost, 1228 
 
 McCartyi). Ball, 80,1146 
 
 McCarty v. Blevins, 1016 
 
 McCarty et al v. Chalfant, 571, 698, 705 
 McCartny & Hurlbut v. Hamaker, 1210 
 McCartney v. Welch, 226 
 
 McCaulay v. Dismal Swamp Co., 972 
 McCauley v. Grimes, 972 
 
 McCauley v. Hargroves, 923 
 
 McChesney v. Browns, 1097, 1098, 1113 
 McClanachan v. Siter, 1027, 1057 
 
 McClanahan v. Ivanhoe L. & I. Co. , 475 
 McClanahan v. Wyant, 1201 
 
 McClaugherty d. Croft, 86, 195 
 
 McClaugherty v. Morgan, 1212 
 
 McCleery v. Allen, 566 
 
 McClellan v. Kinnaird, , 22 
 
 McOlellan v. Longfellow, 377 
 
 McClellan v. Young, 641 
 
 McClintic et ale v. Manns, 215 
 
 McClintic v. Wise's Adm'r et als, 
 
 170, 223, 1139, 1140, 1142, 1183 
 McCloskey & Crim v. O'Brien et al, 
 
 142, 703, 705, 974, 975, 976, 
 1060, 1062, 1155, 1168 
 McCluney & Co. v. Jackson, 
 
 627, 635, 653, 656, 668 
 McClung V. Beirne, 118, 189, 
 
 290, 512, 1144, 1153, 1154 
 McClung V. Livesay, 181, 213 
 
 McClure v. Miller, 28 
 
 McClurg V. Lacky, 564 
 
 McComb V. Donald, 1001, 1005 
 
 McComb V. Lobdell, 345, 348,380 
 
 McConley v. Stockbridge, 335 
 
 McConnell v. Blood, 940 
 
 McConnell v. Beed, 1059 
 
 McConnell v. Scott, 490 
 
 McConn v. Delaney, 825 
 
 McConnico ». Curzen, 870 
 
 McCormick v. Atkinson, 563, 565, 1036 
 McCormick v. Blackford, 599 
 
 McCormick v. Deaver, 927 
 
 McCormick v. Wright, 126, 127, 296, 
 722, 762, 763, 773, 1262 
 McConnico v. Mosdey, 321 
 
 McCoy V. Herbert, 1013 
 
 McCoy's Ex'ors v. McCoy's Devi- 
 sees, 253, 381, 401 
 McCrea v. Punnort, 81 
 McCrowell v. Burson, . 1207, 1209 
 
INDBX TO CASES CITED. 
 
 LXVU 
 
 McCrum v. Lee, 294 
 
 McCue V. McCue, 101, 110 
 
 McCuUough V. DashieU 872 
 
 McCullough et als v. Sommerville, 
 
 545, 957 
 McCuUy V. McCuUy, 887, 889, 911, 953 
 McDaniel v. BaUard, Sheriff, 508 
 
 McDaniel v. Baskerville, 282 
 
 McDanielstJ. Colvin, 1020 
 
 McDonald v. Hovey, 1236 
 
 McDonald v. Hurst, 1103, 1107, 1111 
 McDearman' s Ex' ors v. Eobertson, 
 
 197, 1160 
 McDermutt, &c. li. Strong, &c., 945 
 McDougal's Adm'x v. WiUiford, 346 
 McDowl & Wife v. Charles, 206 
 
 McElmoyle v. Cohen. 925 
 
 McEwan v. Zimmer, 150 
 
 McFadden v. Crawford, 935 
 
 McFadden v. Johnson, 585 
 
 McFarland v. Dilly, 448 
 
 McFarland' s Adm' r et al u. Doug- 
 lass, 430 
 McFarland v. Goodman, 548 
 McFarland v. Hunter, 325 
 McGarry v. Hastings, 480 
 McGavock v. Clark, 156 
 McGiffert v. McGiffert, 153 
 McGlaughlin v. MoGlaughlin, 764 
 McGown, &o. V. Yerks, &c., 196, 352 
 McGown V. Wilkins, 1186 
 McGinder v. Lyons, 1209 
 McGinnis v. Savage, 1001 
 McGuinness v. Boyle, 1081 
 McGinnis ». The Washington Hall, 790 
 McGinnis v. Wright, 295 
 McGoon V. Scales, 1182, 1190, 1192 
 McGrew v. Tombeckbee Bank, 30 
 McGruder v. Lyons, 1110 
 McHenry v. Eowland, 61 
 McHrath v. Hollander, 1087 
 Mcllwaine v. Harris, 1016 
 McJUton V. Love, 982 
 McKan v. Montague, 1147 
 McKaUister v. Bodkin, 174, 1178 
 McKay v. McKay, 444 
 McKay's t). Hite, &c., 493,506 
 McKeagev. Hanover F. Ins. Co., 939 
 McKee v. Garcelon, 568 
 McKee's Heirs v. Hann, 222 
 McKenna v. Hatamond, 942 
 McKenzie v. Ward, 488 
 McKim V. Fulton, 629 
 McKim V. McKim, 340 
 McKim V. Odom, 182, 441 
 McKim V. Thompson, 444 
 McKinder v. Littlejohn, 87 
 McKinneyti. Clarke, 334 
 McKinney's Ex' or v. Waller, 489 
 McKnight/i. Taylor, 125 
 
 McLanachan v. Wyant, 1201 
 
 McLaren & Co. v. Kehler, 928 
 
 McLaughlin v. Janney, 1194 
 
 McLean v. Bovee, 1020 
 
 McLean v. Fleming, 468 
 
 McLean v. Hosea, 749 
 
 McLean v. Lafayette Bank, 518 
 
 McLean v. Walker, 1073 
 
 McLellan v. Young, 641 
 
 McLish V. Eoff, 228, 1231, 1232 
 
 McMartin v. Bingham, 67 
 
 McMahon v. Fawcett, &c. , 352, 489 
 
 McMahon v. McCleman, 515 
 
 McMahon v. Spangler, 493 
 
 McMechan v. McMechan, 602, 608 
 
 McMeekins v. Edmonds, 549, 738 
 
 McMickie's Ex' ors v. Perrin, 830 
 
 McMiUan v. Ferrell, 461 
 
 McMillan v. Hickman, 187, 188 
 
 McMorris v. Wells, 589 
 
 McMuUen v. Eagan, 425, 1024, 1177 
 
 McMurray v. Brown, 1082 
 
 McNamarra v. Dwyer, 161 
 
 McNeel v. Baker et als, 295 
 
 McNeil V. Baird, 865, 876 
 
 McNeiU V. Miller, 1143 
 
 McNew V. Smith, 976, 1153 
 McPherson v. The Commonwealth, 327 
 
 McBae v. Bates, 681 
 
 McEae's Ex' ors v. Brooks & Wife, 
 
 682, 909 
 
 McVeigh v. United States, 147, 829 
 
 McVeigh v. The Bank, 1205 
 
 McVeigh v. Chamberlain, 795, 799 
 
 McVey v. Cajitrell, 1105 
 
 McVickar v. Walcott, 29 
 
 Mebane v. Mebane, 950 
 
 Mecham v. Stems, 766 
 
 M^d V. Jones, 1204, 1205 
 
 Mead v. Merritt, 24, 29, 52 
 
 Meade v. Hughes, 329 
 
 Meade v. Grigsby, 979 
 
 Meara v. Holbrook, 527 
 
 Meais V. Dextey, 1243 
 
 Mechanics Bank v. Levy, 280 
 
 Mechanics Bank v. Seton, 803 
 
 Medlicottt). O'Donel, 80 
 
 Meek v. Spracker, 889 
 
 Meem v. Dulany, 586, 587 
 
 Meem v. Eucker, 28, 30 
 
 Meig's Appeal, 941 
 
 MeUy V. Wood, 956 
 
 Megrate v. Gray, 489 
 
 Melendy & EusseU v. Barbour, 520 
 
 Melhop V. Doane, 151 
 
 Mellson v. Mellson, 1207, 1222 
 
 Melvin v. Proprietors, 1008 
 
 Melvin v. Melvin, 331 
 
 Memphis v. Brown, 1236 
 
 Memphis v. Lasks, 621, 641 
 
INDEX TO CASES CITED. 
 
 Menagh v. "Whitwell, 956 
 
 Mendenhall v. Hall, 1237 
 
 Menken v. Brickly, 951 
 
 Mercantile Co-Op. Bank v. Brown, 
 
 1046, 1053 
 Mercer v. Beale, 868, 869 
 
 I Mercer v. Kelso, 609 
 
 Mercein v. The People, 340 
 
 Merchants Bank v. CampheU, 1184 
 
 Merchants Bank v. Seton, 799 
 
 Merchants Bank v. Thomson, 1186 
 
 Merchants Nat'l Bank v. Good, 984 
 Merchants & Mechanics Bank v. 
 
 DashieU, 581, 583, 1081 
 
 Meriden Brittania Co. v. Pai-ker, 
 
 467, 468 
 Merrill v. Campbell, 621 
 
 Merrill v. George, 247 
 
 Merrill v. St. Louis, 1108 
 
 Merrit v. Bowdoin College, 1232 
 
 Merritt v. Scott, 550 
 
 Merritt v. S^vimly, 341 
 
 Merritt v. Yates, 1023 
 
 Mervin v. Kimbell, 155 
 
 Methvin v. Methvin, 336 
 
 Metcalf D. Gilmore, 52, 925 
 
 Mettert v. Hagan, 322 
 
 Methodist Church v. Jacques, 280, 409 
 Methodist Church v. The Majjor, 28, 29 
 Metropolitan Bank v. St. Louis Co., 81 
 Mettler v. Mettler, 427 
 
 Metzler v. Kilgore, 918 
 
 Meyer v. Hornby, 1079 
 
 Meze II. Mayse, 325 
 
 Michard v. Girod, 81, 1174 
 
 Michau v. Brown, 512, 869, 944 
 
 Michie v. Jefiries, 
 
 472, 473, 858, 1157, 1158, 1159 
 Michie v. Planters Bank, 1148 
 
 Michie v. Woods, 870 
 
 Michond v. Girod, 82 
 
 Middleton v. Pinnell, 245, 248 
 
 Middleton v. Selby, 
 
 131, 356, 359, 425, 538 
 Middlebrook v. Broadbents, 467 
 
 Middlehurg College v. Chandler, 743 
 Miles V. Miles, 557,7 82 
 
 Miller V. Argyle, 421, 473, 809 
 
 MUler V. Blose, 952 
 
 Miller v. Brown, 1104 
 
 Miller v. Cook, 1262 
 
 Miller v. Cox, 568, 690 
 
 Miller v. Gaskins, 29, 37, 62 
 
 Miller v. Gettj'sburg Bank, 1074 
 
 Miller v. Hare, 369 
 
 Miller v. Hatcher, 490 
 
 Miller v. Henderson, 171 
 
 Miller?). Holcombe's Ex' or, &c., 
 
 703, 718, 723 
 Miller v. HoUand, 974 
 
 Miller v. Kershaw, 1088 
 
 MUler V. Marshall, 299 
 
 Miller v. Mayor, 484 
 
 MUler V. Mclntyre, 86, 140, 350, 442 
 Miller v. McLuer, 846 
 
 Miller v. MiUer, 57, 333, 336, 382, 
 
 576, 1094, 1095, 1099, 1104 
 MUler V. NeweU, 1070 
 
 Miner's Adm'r v. Cook, 821 
 
 MilW s Ex' or v. Eice et als, 17, 470 
 Miller v. Bichmond, F. & P. E. E. 
 
 Co., 369 
 
 MUler V. Eutledge, 608 
 
 Miller V. Sharp, 304, 619 
 
 MUler V. Sperry, 1090, 1195 
 
 MUler V. Smoot, 1194 
 
 Miller v. Tolleson, 578 
 
 MUler V. Trueheart, 456, 463, 465 
 
 Miller v. Washburn, 493 
 
 MUler V. WiUis, 414, 460, 908, 911 
 Miller v. WUson, 107 
 
 MUligan v. MiUedge, &c., 238, 382 
 
 MUligan v. MitcheU, 181 
 
 Mills V. Duryee, 154, 925 
 
 MUls V. HaU, 462 
 
 MUls V. Hoag, 822 
 
 MUls V. MUls, 727, 729 
 
 MUls V. Talley, 714 
 
 Mills V. Warner, 567 
 
 Milnes v. Conley, 118 
 
 MUtonberger v. Logansport, 1013, 1248 
 Mims 4). Armstrong, 1008 
 
 Minke v. Hofeman, 464 
 
 Minn v. GoodaU, 1214 
 
 Minnesota Co. v. St. Paul Co., 352, 1010 
 Minot V. Thatcher, 118 
 
 Minturn v. Seymour, 439, 499 
 
 Mississippi v. Johnson, 455 
 
 Mississippi Valley Co. v. Chicago, 
 
 St. Louis and N. O. K. E. Co., 1014 
 Miss. & Mo. E. E. Co. v. Ward, 456, 462 
 Mitchell, Sheriff, v. Chandler, 
 
 60, 236, 343 
 MitcheU v. Cookbum, 492 
 
 Mitchell V. Dors, 68, 462 
 
 MitcheU v. Hotchkiss, 186 
 
 MitcheU v. Lenox, 187, 199, 238 
 
 MitcheU v. Moore, 1096, 1097 
 
 MitcheU v. Overman, 175, 832 
 
 Mitchell's Adm'r v. Trotter & Wife, 715 
 MitcheU v. United States, 618 
 
 MitcheU v. Winslow, 1012 
 
 McJUton V. Lowe, 52 
 
 Moffatt V. Shepard, 952 
 
 Moffett V. Bickle, 836 
 
 Moffett V. Buchanan, 1068 
 
 Mohawk Bank v. Atwater, 796 
 
 Molder v. McCann, 30 
 
 MoUan v. Griffith, 24 
 
 Monk V. Cardiff, 30 
 
INDEX TO CASES CITED. 
 
 IXIX 
 
 Monk V. Packard, 465 
 
 Montague v. Allan's Ex' or, 603, 898 
 Montague v. Dudman, 324 
 
 Montague v. Mitchell, 38, 62 
 
 Montague' s Ex' x v. Turpin' s Adm' x, 210 
 Monte Allegre, 1185, 1189 
 
 Montgomery v. Anderson, 1229 
 
 Montgomery v. McElroy, 1086 
 
 Montgomery v. MUlikin, 160 
 
 Moody V. Wright, 1011, 1014 
 
 Mooers v. White, 119, 127 
 
 Moore v. Barksdale, 472, 476, 479 
 
 Moore v. Bruce, 197, 290, 683 
 
 Moore v. Butler, 695 
 
 Moore v. Byrum, 570, 1018 
 
 Moore v. Cable, 997 
 
 Moore v. Campbell, 862 
 
 Moore v. George, 164, 235, 238, 866 
 Moore v. Harper, 305 
 
 Moore v. Hilton, 134, 785, 893 
 
 Moore v. Holcombe, 985 
 
 Moore v. Holt, 151, 253, 617, 
 
 625, 628, 630, 633, 644, 669 
 Moore v. Huntington, 216, 323 
 
 Moore v. Lipscombe, ' 16, 67 
 
 Moore v. Luckess, 592, 597 
 
 Moore v. McNutt, 267 
 
 Moore v. Eobbins, 820 
 
 Moore v. Sexton, 954 
 
 Moore v. Steelman, 439, 455, 460 
 
 Moore v. Triplett, 588, 807, 1180 
 
 Moore v. Ullman, 418, 572, 573, 871 
 Moore v. Wheeler, 441 
 
 Moreland v. Brady, 1007 
 
 Moreland v. Metz, 196 
 
 Moreland v. Eichardson, 459 
 
 Moor V. Veazie, 172 
 
 Moorhouse v. De Passon, 797 
 
 Moorman v. Crockett, 734, 764 
 
 Moorman v. Smoot, 320 
 
 Moran v. Brent, 189, 1157 
 
 Moran v. Johnston, 132, 513, 542 
 
 Moran v. Woodward, 29 
 
 Morehead v. De Ford, 502 
 
 Moreton v. Harrison, 988, 1148 
 
 Morey v. Forsyth, 172 
 
 Morey v. Morey, 247 
 
 MorgajQ V. Carson, 23, 26, 260 
 
 Morgan v. Fisher, 93, 953, 1037, 1057 
 Morgan v. Morgan, 234 
 
 Morgan v. New York E. E. Co., 1075 
 Morgan v. Ohio Eiver Co. , 
 
 125, 353, 1264 
 Morgan v. Schuyler, 468 
 
 Morgan's Adm'r v. Brest, 481 
 
 Moritz V. Hoffman, 107 
 
 Morrill v. Morrill, 1145 
 
 Morrill v. Eaymond, 622 
 
 Morris v. Coleman, 67, 318 
 
 Morris v. Harvey & Williams, 985 
 
 Mon-is V. Morris, 536, 711, 720, 736, 856 
 Morris v. Mowatt, 920, 949, 991, 1187 
 Morris v. Terrell, 318, 850 
 
 Morris D. Virginia State Ins. Co., 473 
 Morrison & Graham v. Goodwin, 1213 
 Morrison's Ex' or v. Grubb, 
 
 372, 410, 422, 560 
 Morrison' s Ex' or v. Householder, 
 
 92, 350, 698 
 Morrison v. Bausermer, 1050 
 
 Morrison v. Berry, 942, 946 
 
 Morrison v. Blodgett, 663 
 
 Morrison v. Lavell, 127 
 
 Morrison v. Speer, 12, 37, 450 
 
 Morrison v. Peyntz, 230 
 
 Morrow v. Peyton, 749 
 
 Morse v. Gould, 961, 965 
 
 Morser v. Friedenwald, 1154 
 
 Morton v. Noble, 974 
 
 Morton v. Webb, 659 
 
 Mosby & Wife v. Haskins, 15 
 
 Mosby V. Mosbv, 635, 699 
 
 Mosby V. Paul,' 952 
 
 Mosby V. St. Louis M. Ins. Co., 434 
 Mosby V. Withers, , 861 
 
 Mosely v. Boush, 64 
 
 Mosely v. Brown, 585 
 
 Mosely v. Cocke, 238, 843 
 
 Mosely v. Green, 325 
 
 Moses V. Hart, 140, 765 
 
 Moses V. Trice, 68, 343, 344 
 
 Mosea et al v. Hart, &c., 140, 726, 769 
 Mosier v. Shean, 600 
 
 Moss V. Anglo Egyptian Nav. Co. , 402 
 Moss V. Green, 995 
 
 Moss & Wife V. Moorman's Adm'r, 
 
 &c., 726, 983, 1165 
 
 Motley V. Frank, 498, 536 
 
 Motte V. Schult, 848 
 
 Motteux V. Mackreth, 349 
 
 Mott J). Carter's Adm'r, 203 
 
 Motte V. Bennette, 66 
 
 Mount Moriah Cem. Ass'n v. Com., 465 
 Mount V. Harris, 1001 
 
 Mount V. Eadford Trust Co. , 183 
 
 Movan & Wife v. Hays, 201 
 
 Mower v. Kip, 869, 1147, 1230 
 
 Moyer v. Lobenger, 636 
 
 Mulhall V. Quinn, 1011 
 
 MuUaday v. Machir, 87 
 
 Mullen V. Bagby, 1106 
 
 MuUer v. Bayly et als, 
 
 247, 449, 451, 474, 498 
 Muller V. Indersiden, 548 
 
 MuUer v. Stone," 439, 473, 1156 
 
 Munford v. McVeigh, 433, 558, 587 
 Munford, &c. v. Murray, 239, 723 
 
 Munday v. Vawter et als, 276, 318, 814, 
 864, 952, 1007, 1046, 1054, 1057 
 Munford, &c. v. Overseers, &c., 845, 881 
 
TJXX 
 
 rKDEX TO CASES CITED. 
 
 Murdock's Case, 445, 1173 
 
 Murdock's Adm'r t). Weller, 1155 
 
 Mure, Ex parte, 29 
 
 Murphy's Adtn'r «. Carter et als, 772, 774 
 Murphy v. Couch, 559 
 
 Murphy, In re, 340 
 
 Murphy v. Jackson, 230 
 
 Murray v. Charleston, 482 
 
 Murray, &c. v. Coster, &c., 388 
 
 Murray v, Graham, 92 
 
 Murray v. Williamson, 29 
 
 Murrel v. Diggs, 1023 
 
 Muse V. Farmers Bank, 836 
 
 Muse V. Friedenwald, 230, 1204 
 
 Musgrove v. Bouser, 1052 
 
 Musick V. Dodson, 1093 
 
 Musick V. Musick, 333, 334 
 
 Mussina v. Cavazos, 1237 
 
 Mutual Assurance Co. v. Stone et als, 
 
 397, 1037, 1038, 1039, 1043 
 Mutual Assurance Soc. v. Stanard, 
 
 917, 1067 
 Myer v. Hart, 1071 
 
 Myers v. Buchanan, 1052 
 
 Myers v. Fenn, 286 
 
 Myers v. Myers et als, 191, 330 
 
 Myers v. Nelson, 1204 
 
 Myers v. Wade, 749, 754 
 
 Myers v. Zetelle, 750 
 
 Myrick v. Adams, 239, 240 
 
 Myrick's Ex' or v. Epes et als, 883 
 
 N 
 
 Nagle V. Newton, 893 
 
 Nairn v. Browse, 986 
 
 Napier v. Gidiere, 925 
 
 Napier v. Lord Effingham, 138 
 
 Nash V. Nash, 275, 277 
 
 Nathan v. Giles, 660 
 
 Nathan v. Whitlock, 185 
 
 National Bank v. Anderson, 934 
 
 National Bank v. Bates, 1203 
 
 National Bank v. Carpenter, 84, 373 
 National Bank v. DistUlery Co., 
 
 256, 438, 920 
 National Bank v. Harman, 
 
 988, 1058, 1142 
 National Bank v. Kimball, 483 
 
 National Bank v. Matthews, 1021 
 
 National Bank v. Parsons, 414 
 
 National Starch Mfg. Co. v. Duryea, 468 
 Naylor v. Throckmorton, 1067 
 
 Neal V. The Commonwealth, 1207, 1221 
 Neal V. Gillespy, 1183, Il85, 1186, 1189 
 Neal V. Van Winkle, 
 
 428, 1207, 1213, 1215 
 Neale v. Haythrop, 421, 439, 1038 
 
 Nealy v. Jones, 
 
 187, 287, 679, 1144, 1145, 1200 
 
 Nease v. Capehart, 120, 162, 430 
 
 Nease v. Insurance Co., 67 
 
 Neff t). Baker & Triplett, 65 
 
 Neff«. Wooding, 1153 
 
 NaU V. Kelso, 952 
 
 Neill V. Eogers Produce Co., 636 
 
 Neilson v. Bowman, 798 
 
 Neilson's Adm'r v. Armstrong, 892 
 
 Nelson's Heirs;). Boyce, 1021 
 
 Nelson v. Carrington, 93, 99 
 
 Nelson v. Comwell, 68, 69, 717 806, 813 
 Nelson v. Dunn, 63 
 
 Nelson v. Jennings et al, 825 
 
 Nelson v. Kownslar, 679, 694, 703 
 
 Nelson v. Leigh, 30 
 
 Nelson v. Leland, 1123 
 
 Nelson's Ex' or v. Page, 162, 716 
 
 Nelson v. State, 962 
 
 Nesmith v. Drum, 670 
 
 New Albany v. Burke, 96, 121 
 
 New Kiver Co. v. Hoflman, 465 
 
 Newburg Turnpike Co. v. Miller, 465 
 Newberry L. Co. v. Newberry, 368 
 
 Newberry v. Stuarts, 361 
 
 Newberry v. WUliams, 899 
 
 Newcomb v. Brooks, 1174 
 
 Newcomb v, Horton, 454 
 
 Newenham v. Pemberton, 11 
 
 Newer V. O'FaUon, 622 
 
 New Hampshire S. Bank v. Colcord, 
 
 1143 
 New Haven City v. Sargent, 484 
 
 Newhouse v. Miles, 239 
 
 Newlin v. Beard, 1045 
 
 Newman v. Chapman, 
 
 172, 199, 1057, 1088, 1089 
 Newman v. Franes, 20 
 
 Newman v. Newman, 311 
 
 New's Ex' or v. Bass, 141, 170, 196 
 
 Newsom v. Newsom, 719 
 
 Newton, Ex parte, 821 
 
 Newton's Ex'ors v. Bushong, 729 
 
 Newton v. Field, 64 
 
 Newton v. Poole, 
 
 294, 295, 296, 749, 757, 763 
 Newton v. Wilson, 870 
 
 New York Guarantee Co. v. Mem- 
 phis W. Co., 59, 1225 
 New York L. Ins. Co. v. Clemmitt, 1262 
 New York Printing and Dying Es- 
 
 tab. V. Fitch, ' 499 
 
 Nice V. Purcell, 430 
 
 Nicely v. Boyles, 214 
 
 Nichols ti. Campbell, 492, 881 
 
 Nichols V. Eaton, 951 
 
 Nichols V. Heirs of Nichols, 218, 355 
 Nicholas v. Kershner, 609 
 
 Nicholson v. Gloucester Char. School, 
 
 1028, 1244 
 Nicholson v. Leavitt, 566 
 
INDEX TO CASKS CITED. 
 
 LX2I 
 
 Mcoll V. Eoosevelt, 177 
 
 Nickell V. Handly, 642, 945, 952 
 
 Nickels v. Kane, 705 
 
 Nickerson v. Gilliam, 29 
 
 Nieklin v. Betts Spring Co., 1020 
 
 Niday v. Harvey & Co., 223, 882, 979 
 Nimmo v. Stewart, 84 
 
 Nimmo's Ejt'or v. Commonwealtli, 
 
 720, 721 
 Nixdorf u. Smith, 55 
 
 Nixon V. Eose, 1095, 1096, 1114 
 
 Noel V. King, 320 
 
 Noel V. Noel, 821 
 
 Nogeas v. Nogeas, 331 
 
 Norfolk Trust Co. v. Foster, 
 
 67, 358, 359, 821, 1186, 1187 
 N. & W. E. E. Co. V. Dunnaway, 1243 
 N. & W. E. E. Co. V. Dougherty, 1126 
 N. & W. E. E. Co. V. Prindle, 1121 
 N. & W. E. E. Co. V. Postal Tele- 
 graph Co., 53 
 N. & W. E. E. Co. V. Smoot, 236 
 Noonan v. Bradly, 161 
 Noland v. Wickham, 960 
 Norris v. Beach, 247 
 Norris v. Crummey, 488 
 Norris v. Hume, 44 
 Norris v. Lake, 514, 563, 566, 827 
 Norris v. Watson, 1015 
 Norris, Caldwell & Co. v. Bean, 
 
 188, 232, 287, 1258 
 Norrish v. Marshall, 223 
 
 North V. North, 336 
 
 North V. Perrow, 439, 503 
 
 Northern P. E. E. Co. v. Amats, 
 
 1226, 1233 
 Northwestam Bank v. Hays, 116 
 
 Northwestern Bank v. Nelson, 
 
 326, 373, 380, 383, 404, 408 
 Norton v. Norton, 110 
 
 Norton v. Woods, 30 
 
 NorveU v. Lessuer, 602 
 
 NorveU v. Little, 116, 287 
 
 Norwood V. Byrd, 1009 
 
 Norwood V. Harness, 717 
 
 Noye V. Vickers, 91, 439, 493, 497 
 
 Noyes v. Butler, 154 
 
 Noyes v. HaU, 219 
 
 Nuchols V. Jones, 359 
 
 Nulton V. Isaacs, 202, 270, 546, 924 
 NunnaUy v. Strauss, 186, 266 
 
 Nutt V. Summers, 699, 702, 1190 
 
 O'Brien v. Stephens, 
 
 151, 602. 625, 629, 648, 662 
 Obemdorff «. IT. Bank of Baltimore, 
 
 211, 488 
 Ocean Ins. Co. v. Fields, 28, 30 
 
 Odd Fellows Hall v. Masser, 1080 
 
 delrichs v. Spain, 12, 32, 34, 61, 67, 495 
 Offlerdinger v. Ford, 632, 643 
 
 Ogden V. Astor, 636 
 
 Ogden V. Brown, 196, 405 
 
 Ogden V. Gibbons, 465 
 
 Ogilvie V. Knox Ins. Co., 184, 530 
 
 Ogle V. Adams, 699 
 
 Ogletree v. McQuagg, 464 
 
 O'Harai). Dudley, 178 
 
 O'Haratj. MacGonnel, 191,232 
 
 Oil Pet. Co. V. Gale, 297 
 
 Oldham v. Ledbetter, 651 
 
 Old Dom. G. Co. v. Clarke, 1050, 1061 
 Old Dom. Ins. Co. v. Moorman, 475 
 Old Dom. Steamship Co. v. Burck- 
 
 hart, 1002 
 
 01m V. Bates, 468 
 
 dinger v. Shepperd, 302 
 
 Oliver v. Alexander, 1228 
 
 Omohundro v. Henson, 171 
 
 Omohundro *. Omohundro, 
 
 168, 1164, 1204 
 Oney v. Ferguson, 
 
 160, 161, 1094, 1134, 1135 
 Ontario Bank v. Eoot, 277 
 
 Oppenheimer v. Howell, 970 
 
 Orcutt V. Orms, 388 
 
 O'Eeily u Edmmgton, 1253 
 
 Ord V. Noel, 359 
 
 Ormsby v. Terry, 1186 
 
 Orr & Litton v. Goodloe, 476, 479 
 
 Orris v. Powell, 975 
 
 Ortley v. Messere, 192 
 
 Osborn v. Harris Co., 36 
 
 Osborne v. Big Stone Gap Co., 1079 
 Osborne v. Cabell, 482, 1000 
 
 Oshorne v. Carr, 1038 
 
 Osborne v. Glascock, 472 
 
 Osborne v. Taylor, 234 
 
 Osborne v. Throckmorton, 1122 
 
 Osgood V. Franklin, 201 
 
 Osterman v. Baldwin, 1189 
 
 Osterman v. Union Trust Co., 528, 1072 
 Oswald V. Leigh, 87 
 
 Oswald, &c. V. Tyler, Ac, 31 
 
 Otley V. MoAlpine's Heirs, 309 
 
 Ottawa V. Walker, 501 
 
 Otterbackt). A. & F. R. E. Co., 130 
 Ott's Ex'x V. King et als, 1069 
 
 Ottumwa Woolen Mill Co. v. Haw- 
 ley, 938 
 Otway t). Otway, 338 
 Ould & Carrmgton v. Myers et al, 
 
 848, 849 
 Owens V. Boyd L. & I. Co., 476, 480 
 Owens V. Dawson, 881 
 
 Owens V. Eiely's Ex'ors, 
 
 172, 238, 239, 350, 560, 798 
 Oxford's, Earl of. Case, 14, 23, 24, 50 
 
LXXIt 
 
 INDEX TO CASES CITED. 
 
 P. E. P. Society v. Churchman, 178 
 Pace's Assignee t>. Ficklin's Ex' or, 
 
 129, 820, 821, 834, 1251, 1252 
 Pace 0. Pace, 1144 
 
 Pack V. Hansbarger, 929 
 
 Page, &c. V. Booth, 93. 97 
 
 Page V. Fowler, 1020 
 
 Page, Ex" or, v. Winston's Adm'r, 421 
 Page, Adm'r, v. Taylor, &c., 742 
 
 Page V. Thomas, 664 
 
 Paige V, Cagwin, 436 
 
 Pain V. Lester, 671 
 
 Paine v. Mooreland, 150 
 
 Pairo V. Bethell, Assignee, 1158 
 
 Palmer v. Palmer, 330 
 
 PannUl v. CaUoway, 34, 751, 919 
 
 Pannill v. Coles, 1220 
 
 Pardoe'i;. Price 68 
 
 Parham v. Eaudolph, 452 
 
 Paris V. Cochran, 562 
 
 Park V. Peck, 87 
 
 Parke v. Valentine, 1212 
 
 Parker' s Heirs v. Anderson' s Heirs, 222 
 Parker' s Ex' or v. Brown' s Ex' or et 
 
 als, 604 
 
 Parker v. Carter et als, 277, 278, 280 
 Parker v. DiUard, 356 
 
 Parker v. Donally, 622 
 
 Parker, &c. v. Grant, &o., 345, 720, 840 
 Parker v. Jacobs, 1015 
 
 Parker v. Judges, &c. , 55 
 
 Parker v. Logan, 821, 954 
 
 Parker et als v. McCoy et als, 
 
 137, 138, 215, 222, 304, 305, 308, 852 
 Parker v. Valentine, 1213 
 
 Parker v. Winnipiseogee Company, 
 
 32, 456 
 Parks V. Jackson, 1089 
 
 Parramore v. Taylor, 608 
 
 Parrm v. McKinly, 263, 347, 349, 502 
 Parsle/ s Adm' r v. Martin, 
 
 718, 725, 758, 1205 
 Parsons v. Bedford, 72 
 
 Parsons v. MoCracken & Wife, 137 
 
 Parsons v. Snider, 57, 371, 471 
 
 Parsons ti. Thornburg, 1156 
 
 Partridge v. Menck, 468 
 
 Paschal, In re, 1070, 1071 
 
 Pasonal v. Hinderer, 93 
 
 Pate V. Baker, 575 
 
 Patten v. Merchants Bank, 1098 
 
 Patterson v. Eakin, 861, 1183 
 
 Patterson v. McKinney, 1212 
 
 Patterson v. Patterson, 720 
 
 Patteson v. Bondurant, 726, 727 
 
 Patton V. Hoge, 887, 989 
 
 Patton, &c. V. Moore, 934, 936, 939 
 Patton V. Page, 198 
 
 Patty V. Pease, 975 
 
 Paul V. Paul, 603, 895 
 
 Paup V. Mingo, 823 
 
 Paxton V. Freeman, 966 
 
 Paxton V. Eich, 116, 188, 230, 1139 
 Paxton V. Stuart, 953 
 
 Payne v. Bullard, 36 
 
 Payne v. Coles, 420, 748, 893 
 
 Payne v. Graves, 870 
 
 Payne v. Hook, 
 
 65, 143, 162, 210, 231, 746 
 Payne v. Hutcheson, 555 
 
 Payne v. Matthews, 663 
 
 Payne v. Payne, 330 
 
 Payne v. Webb, 196 
 
 Paynter ii. Evans, 29 
 
 Peace v. Nailing, 29 
 
 Peale i;. Hickle, 295, 711, 736 
 
 Peale v. Thurmond, 126, 738, 760, 762 
 Pearce v. Chastain, 17 
 
 Pearce v. Olney, 52 
 
 Pearson v. Keedy, 955, 1088 
 
 Pearson v. Moreland, 590 
 
 Peatross v. McLaughlin, 439, 499 
 
 Peay v. Morrison, 624 
 
 Peck V. Hamlin, &c. , 691 
 
 Peck V. Jennings, 979 
 
 Peck V. List, 1134 
 
 Pecks V. Chambers, 1155, 1161, 1192 
 Peers v. Bamet, 97, 473, 876, 877 
 
 Peer v. Cookerow, 169 
 
 Peer/s Adm'r v. Peery, 898 
 
 Pender v. Lancaster, 961, 964 
 
 Pendleton v. Fay, 315, 349, 359 
 
 Penine v. Dunn, 831 
 
 Penn v. Bahnson, 144 
 
 Penn v. Hearon, 142 
 
 Penn v. Ingles, 33, 67, 229, 864, 1203 
 Penn v. Lord Baltimore, 70, 863 
 
 Penn et al v. Eeynolds, 28, 39, 42, 61 
 Penn Land Co.' s Appeal, 466 
 
 Penn's Adm'r v. Spencer et als, 
 
 283, 555, 704, 945 
 Penn v. Whiteheads, 514, 517, 952, 1101 
 Penn. v. Wheelmg Bridge Co., 456, 462 
 Penneck u, Clough, 952 
 
 Pennington v. Gibson, 831 
 
 Pennington v. Hanby et als, 
 
 190, 227, 274, 279, 875, 994 
 Pennock's Appeal, 1174 
 
 Pennock v. Coe, 1013 
 
 Pennoyer v. Neff, 149, 151, 156, 621 
 Pennybacker v. Switzer, 854 
 
 Pennywit v. Poote, 153 
 
 Penrice v. Wallis, 507 
 
 Peny, &c. v. Euby, 625 
 
 People V. Baker, 153 
 
 People V. Brooks, 340, 523 
 
 People ex rel v. Brooks, 340 
 
 People V. Chegary, 340 
 
INDEX To CASES CITES. 
 
 txxm 
 
 People V. Humphrey, 340 
 
 People V. Janssen, 36 
 
 People V. Norton, 517 
 
 Peoples Bank v. Shryock, 536, 663 
 
 People V. Spalding, 493, 499 
 
 People V. St. Louis, 462 
 
 Peper v. Fordyce, 273 
 
 Pepper v. Bamett, 605 
 
 Perdue'sAdm'ru Dillon, 93 
 
 Perine v. Dunn, 882 
 
 Perinea;. Swaine, &c., 407 
 
 Perkins v. Cartmell, 79 
 
 Perkins v. Dickinson, 952 
 
 Perkins v. Gibson, 989 
 
 Perkins v. Lane, 93, 920 
 
 Perkins v. Perkins, 87 
 
 Perrine v. Striker, 29 
 
 Perry Ins. & Trust Co. v. Foster, 566 
 Perry & Co. v. S. V. N. Bank, 
 
 112, 563, 565, 567 
 Perry v. Ruby, 428 
 
 Perry v. "Wilson, 465 
 
 Perryman, Ex parte, 86 
 
 Person v. Grier, 247 
 
 Persinger et als v. Simmons et als, 
 
 . 207, 311 
 Peshine v. Sbepperson, 804 
 
 Peters r. Butler, 623, 624 
 
 Peters D. NevUle's Trustee, 698,873, 1204 
 Petersburg S. & Ins. Co. v. Lums- 
 
 den, 1075 
 
 Petit V. Shepherd, 1060 
 
 Pettit V. Jennings et als, 435, 436 
 
 Pettigrew v. Evansville, 461 
 
 Petty V. Fogle, 267 
 
 Pettyjohn v. Burson, 347 
 
 Pettyjohn v. Woodruff, 535 
 
 Peyton's Adm'r v. Carr's Ex' or, 
 
 114, 1023, 1053 
 Phelps V. Brewer, 154 
 
 Phelps V. McDonald, 55 
 
 Phelps t). Seely, &c., 226, 954 
 
 Phelps t;. Walther, 204 
 
 Philad., W. & B. E. E. Co. v. 
 
 Woelpper. 570, 1013 
 
 Phil. & T. E. E. Co. V. Stimpson, 1257 
 Phillips V. Prevost, 409 
 
 PhUUppi V. Phillippe, 120 
 
 PhiUips V. WiUiams, &c., 872, 1088 
 Phillipps V. Winslow, 1013 
 
 Philhower v. Todd, 346 
 
 Philpot V. Gruninger, 557 
 
 Phippen v. Durham et als, 569 
 
 Phipps V. Jones, 179 
 
 Phoenix Ins. Co., Ex parte, 1217 
 
 Piatt V. Vattier et als, 85, 125 
 
 Pickens v. Knisely, 380 
 
 Pickens v. Love, 197 
 
 Pickering v. Lord Stamford, 
 
 87, 92, 95, 97 
 
 Picket, &c. V. Chilton, 139, 441 
 
 Pickett V. Morriss, 23 
 
 PickreU v. Eeynolds, 108, 574 
 
 Pidcock V. Potter, 609 
 
 Pidgeon v. Williams' Adm'rs, 526, 726 
 Piedmont & A. L. Ins. Co. v. 
 
 Maury, 187, 188, 286, 287, 289, 366 
 Piedmont Bank v. Hatcher, 1137 
 
 Pierce v. Carleton, 649 
 
 Pierce v. Graham, 1085, 1086 
 
 Pierce J). Cox, 1248 
 
 Pierce v. George, 939, 940 
 
 Pierce v. Grioe, 935 
 
 Pierce v. Eobie, 179 
 
 Pierce's Adm'rs v. Trigg, 
 
 139, 222, 589, 956 
 Pierce v. Turner, 577 
 
 Piercy, Ex' or, v. Beckett et al, 345 
 
 Pierpoint v. Town of HarrisonvUle, 461 
 Pierpoint v. Fowle, 66 
 
 Pierson v. Gale, 248 
 
 Pifer V. Johnson, 548 
 
 Piggott V. Addicks, 834 
 
 PiUow V. Southwest Va. Imp. Co., 863 
 POlsbury v. Kingon, ■ 546 
 
 PiUsworth v. Hopton, 457 
 
 Pilson, Trustee, v. Bushong, 618 
 
 Pinckard v. Wood, 7] 7, 727, 744, 753 
 Pindair s Ex' or i;. Eib. 423 
 
 Pingree v. Cofiin, 172 
 
 Pirtle V. Penn, 534 
 
 Pitto, Ex' or, &c. V. Tidwell, 783 
 
 Pitts V. Eowzee. 826 
 
 Pitts V. Spotts, 1212 
 
 Pitzer V. Bums, 124 
 
 Pixley et al v. Eoanoke Nav. Co., 463 
 Planters Bank v. Calist, 915 
 
 Planters Bank v. Henderson, 559 
 
 Planters Bank v. Neely, 135, 1246 
 
 Plater v. Groome, 607 
 
 Piatt V. Howland, 132, 168, 650, 655 
 Piatt V. Vattier, 86 
 
 Pleasants v. Logan, 349 
 
 Pleasants v. Lorton, 1218 
 
 Pleasants, &c. v. Boss, 596, 895, 904 
 Plowman v. Eiddle, 984 
 
 Poague V. Greenlee' a Adm' r, 1203 
 
 Poel V. January, 248 
 
 Poindexter v. BurweU, 
 
 71, 259, 260, 548, 863 
 Poindexter, &c. v. Davis, 326, 375 
 
 Poindexter" s Ex' rs v. Green' s Ex' rs, 286 
 Poindexter & Wife v. Jeffries et als, 
 
 11, 555 
 Poindexter v. Waddy, 16 
 
 Poling V. Flanagan, 867 
 
 Poling V. Huffinan, 286 
 
 Poling V. Johnson, 784 
 
 Polk V. GaUant, 171 
 
 Pollard's Heirs u. Lively, 795, 802, 1047 
 
LXXIV 
 
 INDEX TO CASES CITED. 
 
 Pollard V. Lumpkins, 596 
 
 PoUard v. Patterson's Adm'r, 71, 260 
 Polley V. Black Eiver Imp. Co., 1236 
 Polling V. Maddoi, 487 
 
 Pollock V. Gilbert, 28, 29, 32 
 
 PoUock's Adm'r v. Sutherlin, 595 
 
 Pomeroys, &c. v. State Bank, 1257 
 
 Pond V. Cooke, 523, 671 
 
 Pond V. Smith, 23 
 
 Pool V. Gott, 340 
 
 Poor V. Poor, 330 
 
 Porter v. Porter, 608 
 
 Porter v. Williams, 522 
 
 Porter v. Young, 695 
 
 Porterfield v. Butler, 1092 
 
 Portsmouth City v. Norfolk Co., 598 
 Post V. Carr, 49, 75 
 
 Post V. Dart, 702 
 
 Post V. Kimberlay, 61 
 
 Post V. Mackall, 86, 286 
 
 Potomac Mfg. Co. v. Evans, 276, 1158 
 Potter V. Gracie, 557 
 
 Potter, Griffith et al v. State of Del- 
 aware, 179 
 Potter V. Kellogg, 1014 
 Pott V. Nathans, 1145 
 Potts V. Blackwell, 1086 
 Potts V. House, 605 
 Powder Co. v. Powder Works, 370 
 Powder v. Eeed, 63 
 Powell V. Bell, 552 
 PoweU V. Berry, 128 
 PoweU V. Cheshire, 456 
 Powell & Wife v. Manson, 
 
 423, 431, 433, 440, 807, 894, 896, 
 902, 908, 911 
 Powell V. Stewart, 29, 30, 92 
 
 PoweU V. Stratton, 161, 714, 721 
 
 Powell V. Watson, _ 29 
 
 Powell's Ex'ors v. White et als, 
 
 763, 1145 
 Power V. Eeeder, 64 
 
 Powers V. C, & O. E. E. Co , 1232 
 
 Pracht & Co. v. Lange, 135, 356, 359 
 Prather v. Prather's Adm'r, 29, 337 
 Pratt V. Borman, 1187 
 
 Pratt et al v. Cox et als, 110, 578 
 
 Pratt V. Northam, 84 
 
 Pratt V. State, 775 
 
 Pratt V. Wright et als, 782 
 
 Prentiss v. Bliss, 640 
 
 Prescott V. Hull, ■ 560 
 
 Preston v. Aston' s Adm'r, 188 
 
 Preston, &c. '!'. Gressom' s Distribu- 
 tees, 295 
 Preston v. HuU, 395 
 Preston v. Kindrick, 839 
 Preston v. Nash, 576, 1042, 1043 
 Preston v. Preston, 128 
 Preston v. Stratton, 30 
 
 Preston v. Stuart, 1157 
 
 Prevost v. Gratz, 100, 121, 125 
 
 Prewitt V. Wilson, 562 
 
 Price V. Browning, 481 
 
 Price's Ex' or v. Harrison's Ex'or, 
 
 &c., 778 
 
 Price V. Johnson, 29 
 
 Price V. Planters Bank, 1099, 1100, 1114 
 Price, Auditor, v. Smith, 1207 
 
 Price V. St. Louis, 1231 
 
 Price V. Strange, 826 
 
 Price V. Thrash, 
 
 197, 220, 256, 290, 1088, 1155 
 Price V. Tyson, 323, 324 
 
 Priddy, &c. v. Hartsook, 196, 392 
 
 Priest V. Cummings, 1027 
 
 Priest V. Cone, 1104 
 
 Prince v. Prince, 337 
 
 Pringle v. Dunn, 1052 
 
 Pritchard v. Thompson, 178 
 
 Pritchett v. Mitchell, 701 
 
 Propst V. Meadows, 30, 58 
 
 Prosser v. Warner, 152 
 
 Prout V. Eoby, 898, 912 
 
 Pruner & Hubbies v. Pendleton, 464 
 Pryor v. Adams, 368, 430, 889 
 
 Public Works v. Columbia College, 155 
 Pugh's Ex'or V. Jones, 129 
 
 Pugh V. McCune, 831 
 
 Pugh et al V. Eussell et als, 
 
 203, 778, 859, 1085 
 Pulliam V. Ayler, 
 
 625, 631, 632, 656, 666 
 Pulliam V. Winston et al, 
 
 25, 449, 451, 497, 774 
 PurceU V. Graham, 1027 
 
 PurceU V. McLeary, 168 
 
 PurceU V. McNamara, 691 
 
 PurceU V. PurceU, 335, 337, 338 
 
 Purdew v. Jackson, 11 
 
 Purner v. Piercy, 570, 1016 
 
 Putnam :;. Day, 276, 355, 356, 358 
 
 Putnam v. Putnam, 996 
 
 Pylant v. Eeeves, 989 
 
 Pyles V. Riverside F. Co., 267, 271, 452 
 
 Q 
 
 Quackenbush v. Van Eipper, 460 
 
 Quarles et als v. Kerr et als, 565, 831 
 Quarles v. Lacy, 553 
 
 Quarles v. Quarles, 715 
 
 Quarrier v. Carter, 354, 357, 358, 813 
 Quarrier, Trustee, v. Peabody Ins. 
 
 Co., 391 
 
 Quesenberry v. Barbour, 854, 1190, 1194 
 Queensberry v. Peoples B. L., &c. 
 
 Ass'n, 620 
 
 Quinn v. The Commonwealth, 1026 
 
 Quinby v. Conlan, 891 
 
INDEX TO CASES CITED. 
 
 LXXV 
 
 B 
 
 Eace V. Oldridge, 962 
 
 Eadcliff u High, 67 
 
 Eader v. Adamson, 817 
 
 Eader v. Bristol Land Co., 201, 266 
 Eader et al v. Neal et al, 67 
 
 Eadford v. Carwile, 1098, 1105 
 
 Eadford v. Folsom, 1236 
 
 Eadford v. Fowlks, 126, 296, 763, 784 
 Eadford' s Ex' org v. Innes' Ex' x, 
 
 500, 503 
 Eadley, &o. v. Shaver, 134 
 
 Eafferty v. King, 372 
 
 Eagsdale v. Hagy et als, 480, 481, 1141 
 EaUroad Co. v. Dunlop, 1116 
 
 EailroadCo., Ex parte, 1225, 1248 
 
 Eailroad Co. ■;;. Bradleys, 824, 1248 
 
 EaUroad Co. v. Harris, 621 
 
 Eailroad Co. v. Howard, 186, 1076, 1184 
 Eailroad Co. v. James, 934 
 
 Eailroad Co. v. Ketchum, 833 
 
 Eailroad Co. v. Miller, 1081 
 
 Eailroad Co. v. Orr, 187 
 
 Eailroad Co. v. Southern Express 
 
 Co., 821 
 
 Eailroad Co. v. Soutter, 
 
 520, 531, 542, 822, 1263 
 Eailroad Co. v. Swasey, 82^, 1230 
 
 Eailroad Co. v. United States, 833 
 
 Eailroad Co. v. Wiggins F. Co., 925 
 Eaines v. Walker, 1031, 1044, 1045 
 Eainey v. Yarborough, 230 
 
 Eakestraw v. Brewer, 123 
 
 Ealston v. MiUer, 473, 480, 507 
 
 Eamkiasenseat v. Barker, 320, 321 
 
 Eamsey v. BeU, 305 
 
 Eamsey et als v. Eamsey' s Ex' or, 606 
 Eand v. Eeddington, 600 
 
 EandaU v. Sniger, 814 
 
 Eandall v. Songer, 835 
 
 Eandle v. Blaokbum, 422 
 
 Eandolph v. Gwynne, 937 
 
 Eandolph's Adm'x v. Kinney, &c., 
 
 72, 300, 302, 871 
 Eandolph's Ex' or v. Eandolph's 
 Ex' or, 94, 114, 127, 300, 
 
 301, 303, 360, 438, 460, 470, 504 
 Eandolph v. Tucker, 245 
 
 Eanlett v. Blodgett, 570 
 
 Eanson v. High, 308 
 
 Eansome v. Fraysers, 996 
 
 Eankin v. Bradford, 325 
 
 Eankin v. Eankin, 21 
 
 Eape V. Heaton, 155 
 
 Eaper v. Saunders, 283 
 
 Eappleye v. Int. Bank, 545 
 
 Eatcliffe v. Carothers, 847 
 
 Eathbone v. Warren, 
 
 36, 37, 62, 63, 324, 488 
 
 Eaub V. Ottterback, 834 
 
 Rawden v. Shadwell, 20 
 Eawlings' Ex' or v. Eawlings et als, 
 
 133, 356, 821 
 
 Eawson v. Samuel, 30 
 
 Eay V. Bogart, 95, 127 
 
 Bay V. Laws, 817, 819, 1230 
 
 Eaymond v. Simonson, 371 
 
 Eayner v. Pearsall, 127 
 
 Eeynolds v. Carter, 1074 
 
 Eead v. Cather, 1086 
 
 Eead v. Commonwealth, 45 
 
 Eead v. Jones, 486 
 
 Eead v. Winston, 702 
 
 Eeade v. Livingston, 108, 110 
 
 Eedd V. Dryer, 1185 
 Eedd V. Eamey, 229, 1060, 1068 
 
 Eedd i). Supervisors, &c., 181 
 
 Eeddall v. Bryan, 820 
 
 Bedford v. Gibson, 984 
 Eedmond v. Phoenix F. Ins. Co. 1082 
 
 Eeed v. Axtell & Myers, 523, 902, 903 
 
 Beed v. Cline, 430, 888, 911 
 
 Eeed v. Dyer, 196 
 
 Beed v. Emery, 564 
 
 Beed v. See, 874 
 
 Eeed v. Union Bank, 966 
 
 Eeed v. Wheaton, 1155 
 
 Bees V. Bates, 176 
 
 Bees V. Bennington, 29 
 
 Beeves v. Dickey, 509, 877 
 
 Beeves v. Dougherty, 81 
 
 Eeichart v. Goers, 464 
 
 Beids Bros. & Co. v. Norfolk, 983 
 
 Eeid V. Gifford, 266, 464 
 
 Beid V. Eeid, 520 
 
 Eeid 11. Stuarts, 257 
 
 Eeifsnider v. Lac, 623, 641 
 
 Beily v. Lamar, 1248 
 
 Eeimer's Appeal, 463 
 
 Eeis V. Lawrence, 1024 
 Eenick v. Luddington, 
 
 401, 488, 974, 1060, 1070, 1071 
 
 Eenick v. Benick, 720 
 
 Benwick v. Wilson, 345 
 
 Eepass v. Moore, 817, 822 
 
 Bequa v. Eea. 170, 222 
 
 EexroadiJ. MoQuain, 142, 163 
 
 Beybold v. Dodd, 893 
 Eeynolds v. The Bank, 
 
 196,- 213, 286, 288, 404, 443, 860, 1162 
 
 Eeynolds v. Gauthorp, 112 
 
 Eeynolds v. Pettyjohn, 523, 528, 750 
 
 Eeynolds v. Eeynolds, 359, 360 
 
 Ehame v. Bhame, 337 
 Bhea v. Preston, 928, 979, 1060 
 
 Ehode Island v. Massachusetts, 260 
 
 Bhodes v. Cousins, 545 
 
 Ehodes v. Selim, 1028 
 
 Eice V. Barnard, 955 
 
txxvi 
 
 Index to cases cited. 
 
 nice V. Burnett, 948 
 
 Eice V. Gamhart, 467 
 
 Eice D. Hartman, 187, 287, 288 
 
 Eice V. Eailroad Co., 1105 
 
 Eice II. White, 121 
 
 Eichards v. Holmes, 1171 
 
 Eichards v. Hubbard, 965, 968 
 
 Eichards v. Salter, 44 
 
 Eichards v. Symes, 31 
 
 Eichardson v. Baker, 128 
 
 Eichardson v. Borden, 942 
 
 Eichardson v. Buswell, 964 
 
 Eichardson v. Butler, 971 
 
 Eichardson v. Davis, 142, 232 
 
 Eichardson v. Donehoo, 416, 799 
 
 Eichardson v. Doble, 786 
 
 Eichardson v. Green, 187 
 
 Eichardson v. Valley F. Ins. Co., 
 
 33, 40, 489 
 Eichardson v. Jones, 223, 1198 
 
 Eichardson v. Marqueze, 564 
 
 Eichardson v. Prince George Jus- 
 tices, _ 492 
 Eichardson v. Ealphsnider, 263 
 Eichardson v. Eichardson, 429 
 Eichardson v. Seevers, 920, 982 
 Richardson v. Wayman, 549, 974 
 Bichmond v. Atwood,. 1242 
 Eichmond v. Duesberry, 1083 
 Eichmond v. Johnson, 986 
 Eichmond i: Milwaukee, 1218, 1227 
 Eichmond v. Poe, 461 
 Eichmond Enq. Co. v. Eobinson, 
 
 28, 44, 297, 651, 660 
 Eichmond Mfg. Co. v. Atlantic D. 
 
 Co., 464 
 
 Eichmond Ey. Co. v. Bowles, 
 
 1101, 1127, 1132 
 Eicketts v. Johnson, 54 
 
 Eiddle v. Barker, 92 
 
 Kiddle v. Johnson, 608 
 
 Eiddle & Co. v. Mandeville, 118 
 
 Eidgeway, Budd & Co.'s Appeal, 957 
 Eidgeway v. Darwin, 422, 748 
 
 Eidgeway v. Mastinga, 548 
 
 Eidley v. Obee, 446 
 
 Eiggan v. Eiggan, 960, 964 
 
 Eiggs V. Armstrong, 318, 471, 1009 
 Eiggs V. Hoffman, 355 
 
 Eiggs V. Johnson Co. , 55 
 
 Eiggs V. Lockwood, 813 
 
 Einehart v. Einehart, 159 
 
 Eingold V. Smith, 1127 
 
 Einker & Wife v. Streit, 
 
 161, 746, 756, 1326 
 Eipley v. Severance, 1075 
 
 Eisher v. Eoush, 28 
 
 Eittenhouae v. Haman, 272, 626 
 
 Eixey v. Dietrick, 230, 428, 562, 572 
 Rixey v. Pearre Bros. & Co., 535 
 
 Eoanes v. Archer, 642, 952, 1054 
 Eoane's Adm'r v. Drummond's 
 
 Adnx'r, 868 
 
 Eoanoke L. & I. Co. v. Kam & 
 
 Hickson, 1244 
 
 Eoanoke Nat'l Bank v. Farmers 
 
 Bank, 212 
 Eoberts v. Cocke, 99, 362, 993, 995 
 
 Eoberts v. Coleman, 276, 814 
 
 Eoberts v. Colvin, 761, 762 
 
 Eoberts v. Halstead, 1141 
 
 Eoberts v. Jordan, 850 
 
 Eoberts v. McLean, 225 
 
 Eoberts v. Eoberts, 1178 
 
 Eobertson v. Berry, 467, 468 
 Eobertson v. Campbell, 
 
 993, 995, 997, 999 
 
 Eobertson v. Carson, 143 
 
 Eobertson v. Cease, 273 
 
 Eobertson v. Dart, 1105 
 
 Robertson v. Deneale, 567 
 
 Robertson v. Swell, 567 
 
 Eobertson v. Hogshead, 475 
 
 Eobertson v. GUlenwaters, 764 
 Eobertson v. Smith, 
 
 1158, 1195, 1198, 1200 
 
 Robertson v. Tapscott, 207, 453 
 
 Robertson v. Trigg, 704, 799 
 Eobertson v. Wright, 763, 919, 1084 
 
 Eobb u. Brewer, 965 
 
 Eobb V. Halsey, 30 
 
 Eobbins v. Holley, 23 
 
 Eobinett v. Eobinett, 698 
 
 Eobinson v. Allen, 293, 604 
 
 Eobinson v. Braider, 57, 60 
 
 Eobinson v. Caldwell, 1233 
 
 Eobinson v. Cathcart, 105 
 
 Robinson v. Crenshaw, 873, 1037 
 
 Robinson v. Day, 349 
 
 Eobinson v. Byron, 302 
 
 Eobinson v. Dii, 237, 372 
 
 Eobinson v. Mays, 256, 472 
 
 Robinson v. National Bank, 621 
 
 Robinson v. Eoss, 520 
 
 Eobinson v. Scotney, 422, 748 
 
 Eobinson v. Shacklett, 207, 345 
 
 Robinson v. Smith, 238, 266 
 
 Robinson v. Stewart, 110 
 
 Eobinson v. Wheeler, 30 
 
 Eobinson v. Allen, 604, 695 
 
 Eobertson v. Campbell, 992 
 
 Eobertson v. Hoge, 632 
 
 Robertson v. Wright, 919 
 
 Robreoht v. Marling, 261 
 
 Eock V. Mathews, 79 
 
 Eocke V. Hart, 732 
 
 EockhiU V. Hanna, 979 
 EockweU V. HubbeU's Adm'r, 961, 965 
 
 Eodes V. Crockett, 1145 
 
 Eodes V. Eodes, 67 
 
INDEX TO CASES CITED. 
 
 Eodgers v. McCleur, 222 
 
 Eodgers 11. Bodgers, 345, 401, 438 
 
 Eodman v. Musselman, 621, 641 
 
 Eomer v. Simon, 360, 445 
 
 Rogers v. Denham, 772 
 
 Eogers v. Elliott, 636, 782 
 
 Eogers v. Gwynn, 52 
 
 Eogers v. McLuer, 975, 1143 
 
 Eogers v. O'NeU, 695 
 
 Eogers v. Eogers, 
 
 200, 232, 381, 468, 844 
 Rogers v. Strotker, 130, 140, 824 
 
 Eogers v. Taintor, 468 
 
 Eogers v. Verlander, 550, 572 
 
 Eogers v. WUey, 1057 
 
 Rolirer v. National Bank, 1023 
 
 Rohrer v. Travers, Trustee, 287, 1161 
 Rollins V. Armstrong, Cator & Co., 428 
 BoUins V. Fisher, 820, 834 
 
 Bollo V. Andes Ins. Co., 623 
 
 Eonald v. The Bank, 256, 409, 983, 1258 
 EonnsaviUe v. Kohlheim, 466 
 
 Book's Case, 4 
 
 Boosevelt v. Stackhouse, 395 
 
 Boot Co. V. Bailway, 468, 1225 
 
 Boot V. Wright, 376 
 
 Bootes V. HoUiday & Welch, 282 
 
 Bootes V. Stone, 869 
 
 Bootes V. Tomkins, 
 
 151, 156, 282, 654, 857 
 Boper V. Wren, 870 
 
 Boper V. McWhorton, 181, 483 
 
 Bopp V. Minor, 1099, 1114 
 
 Borer I. Co. v. Trout, 397, 477, 1258 
 Eose V. Brown, 
 
 289, 796, 834, 1153, 1159, 1161 
 Eose V. Bryant, 87 
 
 Eoaet;. Sharpless, 547, 549, 559, 581, 965 
 Eose V. Story, 1001 
 
 Eoseboom v. BUlin^ton, 87 
 
 Boselins v. Delachaise, 156 
 
 Bjjsenbaum v. Goodman, 1143 
 
 Bosenbaum v. Saddon, 872 
 
 Eosenberger v. Brown, 15 
 
 Bosenberger v. Keller, 480 
 
 Boss, Ex parte, 118 
 
 Boss V. Doval, 86 
 
 Boss V. Gordon, 508 
 
 Boss V. Harper, 28, 32 
 
 Boss V. Houston, 1055 
 
 Boss V. Kiger, 178 
 
 Boss V. McKinney, 649 
 
 Boss V. Norvell, 122, 993, 996 
 
 Boss V. Pleasants, 492 
 
 Boss V. Pynes, 903, 904 
 
 Boss V. Eeid, 1260 
 
 Eosse V. Bust, 882 
 
 Eosser v. Franklin, 606 
 
 Eossett V. Fisher, 473, 474, 1156 
 
 Eossett V. Green, 425, 502 
 
 Eoudabush v. Miller, 1174, 1176, 1177 
 Bouse V. Martin, 466 
 
 Eoyall V. Johnson, 17, 361, 470, 825 
 Eoyall u Bowles, 1013 
 
 Bow V. Cochew, 954 
 
 Eowe V. Bently, 
 
 81, 95, 98, 100, 101, 118, 120, 121 
 Eowe V. Smith, 804 
 
 Bowell V. Klein, 1020 
 
 Eowton V. Bowton, 502, 509 
 
 Boyal V. Johnson, 819 
 
 Eubber Co. v. Goodyear, 
 
 285, 319, 358, 1236 
 Euoker v. Harrison, 251 
 
 Euff V. Starke, 817, 824 
 
 Buffin V. Commonwealth Bank, 447 
 Buflners v. Barrett, 500, 502, 850, 909 
 Euflhers v. Lewis' Ex' or, 69, 313 
 
 EuffhersD. Putney, 1069 
 
 BundeU v. Lakey, 1073 
 
 Bushs V. Hook, 548, 965 
 
 Bush V. Parker, 1218, 1227 
 
 Bushes V. Hooke, 548 
 
 Bushin v. Shields, 1029 
 
 Eussell V. Dickeshied, 323, 324 
 
 BusseU V. Farley, 510 
 
 Bussell V. Hammond, 108 
 
 Eussell V. Lennon, 963 
 
 Bussell V. McCormick, 990 
 
 Bussell V. Place, 381, 401, 402 
 
 BusseU V. Eandolph, 68, 112, 291, 294, 
 546, 547, 831, 879, 886, 966, 980 
 Bussell V. Richards, 942 
 
 Bussell V. Bussell, 338, 1069 
 
 Bussell V. Staton, 29 
 
 Bust V. Bust, 305 
 
 Bust et al v. Ware, 76, 23, 30, 46, 57, 59 
 Buth, &c. V. Owens, 866 
 
 Butherford v. Geddes, 804 
 
 Butherglen v. Wolf, 1088 
 
 Eyall V. Bowles, 570 
 
 Byan v. Krise, 586 
 
 Eyan' s Adm' r *. McLeod et al, 
 
 778, 819, 820, 1085 
 Byan v. Preston, 960 
 
 Bymer v. Hawkins, 1209, 1213 
 
 S 
 
 Sabbcool v. Boughton 248 
 
 Sadler's Adm'rr. Kennedy's Adm' x, 86 
 Sadler's Ex' or J). Green, " 1249 
 
 Sadler v. Kennedy, 87 
 
 Sadler v. Whitehurst, ' 267, 269, 680 
 Sage et als v. Hammonds, 540, 760, 761 
 Sage V. Central Eailroad Co. , 
 
 1192, 1193, 1248 
 Salamone v. KeUy, 71, 73, 265, 1109 
 Sale ». Dishman's Ex'ors, 303 
 
 Salisbury v. Newton, 11 
 
LXXVIII 
 
 INDEX TO CASES CITED. 
 
 Sallee v. Yates and Wife, 750 
 
 Salmon v. Bennett, 107 
 
 Salmon v. Qagett, 367, 412 
 
 Salmond v. Price, 863 
 
 Salsbury v. Ellison, 536 
 
 Salters v. Tobias, &c., 388 
 
 Sampeyreac, &c. v. United States, 830 
 Sample v. Barnes, 92 
 
 Sampson t'. Mitchell's Ex' or, 461,470 
 Sampson et al v. Welsh et als, 824 
 
 Samuel v. Marshall, &c., 159, 200, 430 
 Sanborn v. Kittredge, 67 
 
 Sanders v. Branson, 42, 283 
 
 Sanders v. Parish, 573 
 
 Sanders v. Young, 535 
 
 Sandford v. McLean, 920, 928, 973, 974 
 Sandford Mfg. Co. v. Wiggin, 28 
 
 Sands v. Codwise, 578 
 
 Sands v. Hildreth, 578 
 
 Sands v. Lynham, 
 
 135, 322, 353, 838, 839, 1188 
 Sandy v. BandaU, 699 
 
 Sanford v. Chase, 247 
 
 Sangster v. The Commonwealth, 635, 653 
 Sangston, Cor. -Sec, v. Gordon, 1022 
 Satterthwait v. Emley, 550 
 
 Satterlee v. Penny & Cameron, 520 
 
 Saum V. Coffelt, 712 
 
 Saunders v. Branson, 283 
 
 Saundei-s v. Griggs, 
 
 183, 168, 293, 392, 702, 837, 1223 
 Saunders v. Prunty, 691, 695, 696 
 
 Saunders i). Waggoner, 565, 1217 
 
 Savage v. Allen, 64 
 
 Savage v. Knight, 572 
 
 Savage v. Murphy, 110 
 
 Savery v. Sypher, 1200 
 
 Savings Bank v. Creswell, 975 
 
 Savings Inst. v. Thomas, 571 
 
 Sawyer v. Adams, 1076 
 
 Sawyer v. Davis, 462 
 
 Sawyer v. Gerrish, 1016 
 
 Sawyer v. Hoag, 121, 185, 187, 1076 
 Saxton V. Davis, 267 
 
 Sayers v. CasseU, 231, 742, 746, 759 
 Sayers v. Wall, 112, 236, 322, 554, 
 
 575, 578, 746, 1097 
 Sayre v. Grimes, 167, 168 
 
 Sayre v. King, 43 
 
 Sayre v. Townsend, 952 
 
 Scarritt, In re, 340 
 
 Schader v. Hartford, 1227 
 
 Schamp v. Security S. &D. Asa'n., 
 
 1135 
 Scarborough v. Pargond, 1237 
 
 Schieffelin v. Stewart, 735 
 
 Schmidlapp v. Currie, 535 
 
 Schnelby v. Began, 985, 1142 
 
 Schofield V. Cox, 151, 1141 
 
 School District v. Gage, 621 
 
 Schultz V. Hansbrough, 975 
 
 Schuyler v. Hoyle, 11, 206 
 
 Schwed V. Smith, 1216 
 
 Scott V. Ashlin, 292, 778 
 
 Scott V. Beutel, 1187 
 
 Scott V. Cheatham, 964, 971 
 
 Scott V. Dunn, 1187 
 
 Scott V. Freeland, 590 
 
 Scott V. Gibbons, 421 
 
 Scott V. Gibson, 421 
 
 Scott V. HaUiday, 461, 470 
 
 Scott V. Hill, 651 
 Scott, Trustee, v. Jones, 
 
 428, 568, 576, 1030 
 
 Scott V. Lorraine, 642, 952 
 Scott V. Luddington, 
 
 171, 253, 1155, 1158 
 
 Scott V. McDonald, 1230 
 
 Scott V. Nichols, 127 
 
 Scott V. Noble, 150 
 
 Scott V. Perkins, 502 
 
 Scott V. Bant, 327 
 
 Scott V. Eowland, 320, 452 
 
 Scott V. Sanford, 260 
 
 Scott V. Wharton, 458 
 
 Scrugham v. Wood, 1044 
 
 Scudder v. Trenton, 456 
 
 Seabright v. Seabright, 763 
 
 Seaburn v. Seaburn, 178, 179 
 
 Seaman v. Hicks, 1186 
 Seamster v. Blackstock, 
 
 51, 381, 401, 844 
 
 Searle v. Lord Barrington, 87 
 
 Sears v. Hanks, 548, 559 
 
 Seaver v. Bobinson, 247 
 
 Sebastian v. Johnson, 1163 
 
 Sebom v. Beckwith, 399 
 
 Sebring v. Mersereau, 307 
 
 Sedgewick v. Cleveland, 220 
 
 Seeley v. Westport, 483 
 Segar v. Parrish, 67, 267, 268, 270 
 
 Segee v. Thomas, 66 
 
 Segoine v. The Auditor, 549 ' 
 
 Segourney v. Sibley, 395 
 
 Seibel v. Bapp, 952 
 
 Seitz V. Mitchell, 419 
 
 Selden v. BandaU, 29 
 
 Selleck v. French, 733, 737 
 
 Sellers v. Corwin, 1 146 
 
 Sensenbrenner v. Mathews, 1075 
 
 Sergeant v. Linkous, 27 
 
 Series v. Cromer, 821 
 
 Seton V. Slade, 128 
 
 Seve V. Armitage, 493 
 
 Sexton V. Crockett, 140 
 Sexton V. Patterson, 188, 821, 827, 1185 
 
 Sexton V. Pickering, 1027 
 Sexton V. Wheaton, 107, 108, 110, 1137 
 Shackelford v. Apperson, 469, 885, 886 
 
 Shackelford v. Beck, 1081 
 
INDEX TO CASES CITED. 
 
 Shackelford v. Newbill, 761 
 
 Shackelford v. Shackelford, 535, 537 
 Shacker v. Hartford F. Ins. Co., 1227 
 Shadrack v. Woolfolk, 1051 
 
 ShaefFer v. Gates, 1190 
 
 Shand v. Aberdeen Canal Co., 181 
 
 Shand v. Grove, 189 
 
 Shank v. Knight, 448, 498 
 
 Shanks v. Edmondson, 931 
 
 Shanks v. Klien, 956 
 
 Shanks v. Lancaster, 1024 
 
 Shannon v. Hanks, 520, 529, 538 
 
 , Shannon v. McMullin, 
 
 36, 251, 423, 488, 489 
 Shares v. Eogers, 107 
 
 Sharp V. Eockwood, 126, 
 
 136, 162, 727, 729, 782, 734, 855 
 Sharp V. Thompson, 1007 
 
 Shaver v. White & Dougherty, 663 
 
 Shaw V. Bill, 164, 352, 1013 
 
 Shaw V. Carpenter, 57 
 
 Shaw V. Custer, 297 
 
 Shean v. Shay, 577 
 
 Shearman v. Christian, 
 
 . 279, 294, 296, 763 
 Sheedy v. Second National Bank, 662 
 Sheer, Ex parte, 939 
 
 Sheets v. Culvin, 636 
 
 Sheffey v. Gardiner, 480 
 
 Sheldon v. Armistead, 162, 268 
 
 Sheldon v. Fortescue, 841 
 
 Sheldon v. Boot, 636 
 
 Shelton v. Ficklin, 638, 936 
 
 Shelton v. Jones, 831 
 
 Shelton v. Tiffin, 155 
 
 Shelton v. Van Kleek, 356 
 
 Shend. V. E. E. Co. v. Ashby, 251, 260 
 Shend. V. E. E. Co. v. Dunlop, 1116 
 Shend. V. E. E. Co. v. Griffith, 
 
 636, 1075 
 Shephard v. Merrill, 349 
 
 Shepherd v. Burkholder, 1054 
 
 Shepherd v. Chapman, 356, 360 
 
 Shepherd v. Larue, 136 
 
 Shepherd v. May, 482 
 
 Sheppard v. Starke, 
 
 235, 239, 240, 279, 816, 856 
 Sheppards v. Turpin, 102, 117, 565 
 
 Sherman v. Barret, 557 
 
 Sherman v. Shaver, 979, 1145 
 
 Shewen v. Vanderhost, 86 
 
 Shields i'. Anderson, 
 
 121, 546, 578, 791, 870 
 Shields v. Barrow, 236, 263, 318, 345 
 Shields v. Commonwealth, 343 
 
 Shields v. McClung, 13, 479, 499 
 
 Shields v. Street, 919 
 
 Shields & Mahan v. Eeynolds, 488 
 
 Shillaber v. Eobmson, 472 
 
 Shines v. Craig, 1038 
 
 Shinn v. Board of Education, 362 
 
 Shinn v. Eoberts, 1164 
 
 Shipe, Cloud & Co. v. Eepass, 
 
 548, 932, 963, 990, 1032 
 Shipley v. Eitter, 460 
 
 Shipman v. Baily, 837 
 
 Shipman v. Fletcher, 498, 509, 592, 
 600, 646, 695, 702, 706, 1207 
 Shiras v. dinger, 464 
 
 Shirers v. Simmons, 1079 
 
 Shirley v. Long, 267, 414, 441 
 
 Shirley v. Eice, 1175, 1198 
 
 Shiry v. Musgrove, 827 
 
 Shoemaker v. Coke, 1187 
 
 Short V. Magruder, 969 
 
 Shortridge v. Bartlett, 29 
 
 Showalter v. Euper, 1212 
 
 Shrewsbury v. Tufts, 651 
 
 Shriver v. Lynn, 1152 
 
 Shufeldt V. Jenkins & Co., 569 
 
 Shugart v. Thompson, 295 
 
 Shultz V. Hansbrough, 423, 473, 474, 
 706, 975, 1146, 1156 
 Shultz V. Shultz, 602 
 
 Shumaker v. Nichols, 37 
 
 Shumate v. Crockett, 220, 289 
 
 Shumate v. Dunbar, 806, 813 
 
 Shumate v. Williams, 1168 
 
 Shumway v. Eeed, 986 
 
 Shurtz V. Johnson, 423, 473, 474, 1065 
 Shuttleworth v. Dunlop, 874 
 
 Sieveking v. Behren, 44 
 
 Sidenburgr. Ely, 1072 
 
 Silk V. Prime, 1086 
 
 Sillings V. Bumgardner, 
 
 162, 192, 206, 239, 345 
 Silsby V. Foote, 1236 
 
 Silverman v. Greaser, 110 
 
 Sims V. Bank of Charleston, 624 
 
 Sims V. Hundly, 1257 
 
 Sims V. Sims. 821 
 
 Sims V. Tyrer, 1327 
 
 Simmons u Lyles, 187, 189, 973, 1072, 
 1155, 1157, 1201, 1223 
 Simmerman v. Songer, 608 
 
 Simmons v. Palmer, 475 
 
 Simmons v. Simmons, 326, 698, 705, 798 
 Simmons v. Tongue, 287 
 
 Simon v. Ellison, 142 
 
 Simpson v. Bishop, 1142 
 
 Simpson v. Edmiston, 452 
 
 Simpson v. Greely, 1224 
 
 Simpson v. Hart, 29, 48 
 
 Simpson v. Henning, 489 
 
 Simpson v. Watts, 354 
 
 Sinclair v. Sinclair, 
 
 921, 952, 953, 954, 1065 
 Sinclair v. Slawson, 1053 
 
 Singer Mfg. Co. v. Domestic S. M. 
 Co., 465 
 
INDEX TO CASES CITED. 
 
 Singer Mfg. Co. v. June, 468 
 
 Singleton v. Lewis, 449, 451, 498 
 Sipe V. Earman, 112, 283, 564, 566, 1065 
 
 Siren v. Eulemaa, 726, 1086 
 Siter, Price & Co. v. McClanahan, 
 
 931, 1021. 1025, 1038 
 
 Sitlingtons v. Brown, 412, 809 
 
 Sitlington v. Kinney, 14 
 
 Skidmore v. Jett, 1100, 1102 
 
 Skipner v. Conant, 704 
 
 Skinner v. Moore, 924 
 
 Skinner v. Keynick, 966 
 
 Skinner v. Shannon, 963 
 
 Skinner v. White, 29 
 Skipwith V. Cunningham, 106, 561, 562, 
 
 569, 580, 917, 1006, 1045, 1057 
 
 Skipwith V. Strother, 18, 20, 58, 562 
 
 Skipwith V. Young, 1219, 1221 
 
 Slack V. Wood, 27, 30 
 
 Slater v. Maxwell, 51, 409, 1183 
 
 Slee V. Bloom, 694 
 
 Sleeth V. Murphy, 83, 84 
 
 Sloan V. Campbell, 1142 
 
 Slocourt ti. Breedlove, 652 
 Slothoweri). OakEidgeL. Co., 476, 480 
 
 Smalley v. Corliss, 705 
 
 Smilie v. Biffler, 80 
 
 Smith V. Allen, 559 
 
 Smith V. Ayer, 1056 
 
 Smith V. Betty, 430, 889, 906 
 
 Smith V. Blackwell, 773, 817 
 
 Smith V. Bourbon, 1225 
 
 Smith V. Brown, 399, 696 
 
 Smith V. Bruce, 553 
 
 Smith V. Bryan, 1013 
 Smith V. Butcher, 
 
 283, 514, 517, 526, 538 
 
 Smith V. Chapman, 1Q26, 1151 
 
 Smith V. Chilton, 646 
 
 Smith V. Clay, 98 
 
 Smith V. Cockrill, 1152 
 
 Smith V. Commonwealth, 935 
 
 Smith V. CouU, 888 
 
 Smith V. Cutler, 592 
 
 Smith V. Duane, 996 
 
 Smith V. Durrell, 981 
 
 Smith V. Emerson, 559 
 
 Smith V. Evans, 827 
 
 Smith V. FUnt, 189, 857, 954 
 
 Smith V. Foster, 1003 
 
 Smith V. Fox, 1102 
 
 Smith V. Fulton, 30 
 
 Smith V. Gale, 1231 
 
 Smith V. Gardner, 460 
 Smith V. Gregory, 712, 748, 749, 846 
 
 Smith V. Harkins, 486 
 
 Smith V. Hays, 3, 862 
 
 Smith V. Henkle, 1175, 1177 
 
 Smith V. Hunt, 625, 652 
 
 Smith V. Hutchinson, 114 
 
 Smith V. Ingles, 
 
 949 
 
 Smith V. Jenny, 
 
 629 
 
 Smith V. Johnston, 
 
 943, 1196 
 
 Smith V. Lloyd, 
 
 370 
 
 Smith V. Lowther, 
 
 473 
 
 Smith V. Lowry, 
 
 28, 30, 43 
 
 Smith V. Manning, 
 
 996 
 
 Smith D. MoLain, 
 
 15 
 
 Smith V. Nicholas, 
 
 434 
 
 Smith V. Pattie, 
 
 86 
 
 Smith V. Pettingill, 
 
 68, 460, 461 
 
 Smith V. Poythress, 
 
 1104 
 
 Smith V. ProflBtt, 
 
 256, 319, 381, 
 
 385, 783, 787, 797, 803, 864 
 Smith V. Kamsey, 559 
 
 Smith V. Kickard & Triplett, 251 
 
 Smith V. Smith, 263, 276, 282, 305, 
 332, 333, 346, 349, 695, 1095 
 Smith V. Eosenheim, 1211 
 
 Smith V. Thompson, 
 
 89, 94, 97, 125, 1099 
 Smith V. Thorp, 1148 
 
 Smith V. Tunno, 489 
 
 Smith V. Tupper, 920 
 
 Smith V. Turner, ■ 303 
 
 Smith V. Walker, 29 
 
 Smith V. Ward, 1028 
 
 Smith V. Wells, 1095 
 
 Smith V. Wellman, 1174 
 
 Smith V. Winsatt & Chilton, 79, 654 
 Smith V. Woolfolk, 821 
 
 Smith V. Wortham, 1185 
 
 Smith D. Wiley, 160 
 
 Smith V. Zent, 982 
 
 Smith's Ex' or i'. W. 0. M. & G. S. 
 
 E. E. Co., 123, 124, 1148 
 
 Smith Bridge Co. v. Bowman, 1079 
 
 Smitheal v. Gray, 954 
 
 Smithurst v. Edmunds, 1010 
 
 Suavely v. Harkrader, 14, 37, 270, 272, 
 
 468, 469, 590, 747, 750, 759, 885, 1324 
 Suavely v. Pickle, 122, 239, 995 
 
 Snead v. McCoull, 263 
 
 Snellings v. Boyd, 171 
 
 Snickers v. Dorsey, 688, 706 
 
 Snider v. Brown, 190 
 
 Snider v. Lackenour, 1045 
 
 Snoddy v. Haskins, 100, 103, 110, 1211 
 Snodgrass v. Andrews, 546 
 
 Snow V. Gould, 377 
 
 Snow V. Perkins, 943 
 
 SnouiFer v. Hansbrough, 911 
 
 Snyder v. Cabell, 236, 463 
 
 Snyder v. Grandstaff, 1038 
 
 Snyder v. Martin, 425, 442, 929, 1034 
 Snyder v. Eobinson, 1146 
 
 Solome V. Big Stone Gap Co., 1244 
 
 Sommers v. Torry, 414 
 
 SommerviUe v. Horton, 567, 1030 
 
 Sommerville v. Wimbish, 486 
 
INDEX TO CASES OITED. 
 
 Southall V. Exchange Bank, 255 
 
 Southall V. Parish, 230, 452 
 
 Southall V. Taylor, 718 
 
 Southgate v. Taylor. 999 
 
 Southern Pert. Co. v. Nelson, 1211 
 
 Southerland v. Crawford, 510 
 
 Southside B. B. Co. v. Daniel, 371, 386 
 Southwest Va. M. L. Co. v. Chase, 
 
 476, 1168 
 Southern P. Co. v. Denton, 621 
 
 Souzer v. De Meyer, 118, 367, 388 
 
 Sower V. Philadelphia, 461 
 
 Spaden v. Lawler, 571 
 
 Spaulding v. Backus, 23 
 
 Speer v. Crawter, 70 
 
 Speidel v. Schlosser, 969 
 
 Speights V. Peters, 516, 537 
 
 Spenoe v. Bagwell, 565, 1022 
 
 Spence v. Eepasao, 573, 1137 
 
 Spencer v. Ford, 106, 204, 335, 876 
 
 Spencer v. Jones, 439 
 
 Spencer v. Lapsley, 1257 
 
 Spencer v. Lee, 202 
 
 Spencer v. MiUer, 476 
 
 Spencer v. Van Duzen, 415 
 
 Spengler v. Snapp, 701, 702 
 
 Spilman v. Johnson, 979 
 
 Spilman v. Payne, 1072 
 
 Spiro V. Paxton, 969 
 
 Spoouer v. Fletcher, 641 
 
 Spooner v. HUbish, 547, 580 
 
 Spotswood V. Higginbotham, 
 
 66, 208, 453 
 Spraggon v. McGreer, 1091 
 
 Spring V. Sandford, 1186 
 
 Springer v. Drosch, 547 
 
 Sprigg V. The Bank, 28 
 
 St. Qair v. Cox, 156 
 
 Staca V. Bumgardner, 952 
 
 Stadtfield v. Huntsman, 1003 
 
 Stafford v. Brown, 278 
 
 Stamp V. Case, 1030 
 
 Stamper v. Garnet, 91, 94, 96, 97, 127 
 Stanard v. Graves, 430,' 888, 903, 909 
 Stanlv V. Gadsby, 433 
 
 Stanly v. Hubbard, 1213, 1218 
 
 Stanley" 8 Appeal, 761 
 
 Stanton v. Embry, 391 
 
 Staples V. Staples, 132, 134, 
 
 276, 727, 729, 919, 950, 1173 
 Staples V. Turner, 33, 56 
 
 Starbuck v. Muriay, 
 
 154, 155, 648, 923, 925, 928 
 Stark V. Scott, 616 
 
 State Bank v. Bozeman, 63 
 
 State Bank v. Stanton, 29, 30 
 
 State Bank v. Tweedy, 1139 
 
 State V. Banks, 340 
 
 State V. Baldwin, 340 
 
 State V. Bowen, 196 
 
 F 
 
 State V. Carlton, 
 
 489 
 
 State V. Crawford, 
 
 466 
 
 State V. County Court, 
 
 182 
 
 State V. Hall, 
 
 381, 510 
 
 State V. HaUett, 
 
 618 
 
 State V. Lawson, 
 
 636 
 
 State V. Mobile, 
 
 463 
 
 State V. Omaha, 
 
 463 
 
 State V. Eichardson, 
 
 340 
 
 State V. Smith, 
 
 640 
 
 State V. Spencer, 
 
 963 
 
 State V. Turner, 
 
 70 
 
 State V. Williford, 
 
 967 
 
 State V. Wines, 
 
 89 
 
 State Savings Bank v. Baker, 487 
 
 Statham v. Ferguson, 796, 798 
 
 Staton V. Pitman, 854 
 
 Staude v. Keck, 272 
 
 Staunton v. Stout, 1220 
 
 Steamboat Co. v. Hammond, 984 
 
 Steamboat Co. v. Livingston, 465 
 
 Stearns v. Marsh, 1074 
 
 Stearns J). Richmond Paper Co., 212 
 Steed V. Baker, 70, 847 
 
 Steele v. Steele's Adm'r, 1084, 1147 
 Steele v. White, 168 
 
 Steel V. Smelting Co., 948 
 
 Steiger v. Brown, 247 
 
 Steines v. Franklin Co., 1241 
 
 Stenndale v. Harkinson, 114, 116 
 
 Stephenson v. Stephenson, 138 
 
 Stephenson v. Taverners, 
 
 29, 30, 34, 203, 230, 263, 293, 294, 
 
 301, 345, 349, 392, 488, 861, 877 
 Steptoes;. Flood's Adm'r, 910,911 
 
 Steptoe V. Harvey, 395, 490 
 
 Steptoe V. Pollard, 908, 911, 977 
 
 Steptoe V. Bead, 698, 795, 801, 802, 836 
 Sterry, &c. v. Arden, 321 
 
 Stem Bros, &c. v. Frenkle, ] 132 
 
 Stetson V. Faxon, 463 
 
 Stevens v. Beekman, 68, 466 
 
 Stevens et al v. Davison, 
 
 454, 485, 514, 530, 331, 584 
 Stevens v. Gage, 715 
 
 Stevens v. MoCormick, 214, 307 
 
 Stevens v. Middlesex Canal Co. , 465 
 StewaU V. Henry, 1002 
 
 Stewart v. Carr, 30 
 
 Stewart v. Cass, 595, 593 
 
 Stewart);. Crablins, Gdn., 193,274 
 
 Stewart v. Flowers. 1070, 1071 
 
 Stewart v. Hendricks, 694 
 
 Stewart v. Iglehart, 577 
 
 Stewart, Adm'r, v. Jackson, 196, 236 
 Stewart v. McClung, 968 
 
 Stewart v. Piatt, 559 
 
 Stewart v. Boe, 329 
 
 Stewart v. Stewart, 
 
 206, 271, 695, 698, 705, 833, 838 
 
INDEX TO CASES CITED. 
 
 Stileman v. Ashdown, 108 
 
 Stigers v. Brent, 35 
 
 Stigler V. Stigler, 757 
 
 Stillman v. Flenniken, 934 
 
 StiUman v.. Stillman, 338 
 
 StillweU V. Aaron, 488 
 
 Stimpson v. Bishop, 694, 981, 985, 1158 
 Stinnett v. The Branch Bank, 30 
 
 Stockdale, Smith & Co. v. Harris, 573 
 Stockwell V. Campbell, 942 
 
 Stockwell V. Marks, 937 
 
 Stoddard Woolen Manufactory v. 
 
 Huntley, 984 
 
 Stokes & Smith v. Upper Appomat- 
 tox Co., 464, 465 
 Stokes V. Olliver, 568 
 Stokes V. Payne, 1086 
 Stokes V. State, 1072 
 Stokoe V. Upton, 937 
 Stone V. aark, 1009 
 Stone Co. v. Casey, 535 
 Stone V. Moore, 371 
 Stone V. Stone, 337 
 Stone D. Ware, 1214 
 Stone V. Wilson, 251 
 Stone Works v. Gray, 1162 
 Stonebraker v. Hicks, 1137 
 Stonebumer & Richard v. Motley, 
 
 563, 1137 
 Stonestreet v. Doyle, 178 
 
 Storm V. Mann, 457 
 
 Story, Ex parte, ' 899 
 
 Story V. Livingston, 690, 698 
 
 Story V. Walker, 965, 968 
 
 Stotz V. Collins, 251 
 
 Stout V. Phillippi, 1090, 1199, 1223 
 Stout II. Shew, 351 
 
 Stout V. Vause, 1088 
 
 Stovall V. Banks, 824 
 
 Stovall V. Border Grange Bank, 
 
 142, 230, 1155, 1203 
 Stovall, Trustee, &c. v. Hardy et 
 
 als, _ 292, 538 
 
 Stover V. Harrington, 1009 
 
 Strange v. Collins, 444 
 
 Strange' s Adm' r v. Strange et als, 
 
 696, 697, 698, 704, 964, 971 
 Stratton v. Stratton, 338 
 
 Straughan v. Wright, 81 
 
 Straus ti. Bodeker, 1065 
 
 Straus V. Kerngood et al, 536, 665 
 
 Strayer, &c. v. Long, 
 
 196, 312, 686, 873, 970, 1163 
 Streeper v. Eokhart, 567, 1030 
 
 Street v. Ferry, 1226 
 
 Street's Heirs v. Street, 11 Leigh, 203 
 Strider v. Reid's Adm'rs, 996 
 
 Strimpfler v. Roberts, 952 
 
 Stringfellow v. Sommerville, 341 
 
 Strike's Case, 287 
 
 Strong V. Sullivan, 17 
 
 Strong V. Willey, 65 
 
 Strother v. Boyce, 405 
 
 Strother et als v. Hull et als, 140, 735, 
 759, 765, 766, 767, 1261 
 Strothei-' s Adm' r v. Strother' s Adm' r, 
 
 320, 848 
 Strouse v. Becken, 559 
 
 Stryker v. Cassidy, 581 
 
 Stuart & Palmer u Preston, 1262 
 
 Stuart's Ex' or v. Abbott, 983 
 
 Stuart V. Boulware, 526 
 
 Stuart's Heirs, &c. v. Coalter, 
 
 69, 72, 267, 268 
 Stuart V. Hamilton, 114 
 
 Stuart, Buchanan & Co. v. Hurt, 
 
 Receiver, 869 
 
 Stuart, Buchanan & Co. v. White 
 
 et als, 451, 683 
 
 Stuart V. McGruder, 963 
 
 Stuart V. Pannis, ■ 571 
 
 Stubblefield v. McRaren, 160 
 
 Stubbs V. Burwell, 784, 791 
 
 Sturm V. Chalfant, 572 
 
 Sturtevant v. Goode, 66, 67 
 
 Sublett j;. Wood, 656, 657 
 
 Sullivan v. Portland R. R. Co. , 
 
 70, 81, 84, 399 
 Sumner v. Blakslee, 1007 
 
 Summers & Brannin v. Ross & Co., 571 
 Summers v. Darne et als, 
 
 786, 800, 817, 818, 972, 1032, 1045 
 Summer v. Hampoon, 956 
 
 Sumner v. Woods, 1001 
 
 Sunderlin v. Baxter, 455 
 
 Supervisors v. Catlett, 1220 
 
 Supervisors of Culpepper v. Gor- 
 
 rell, 167 
 
 Surler's Adm'rii. McClmtic, 369 
 
 Susquehanna Canal Co. v. Bonham, 1080 
 Sutherland v. Brush, 722 
 
 Sutton V, Dickenson, 594 
 
 Sutton V. Gatewood, 348, 379, 380 
 
 Sutton V. Schonwald, 1192 
 
 Swan V. Logan, 141 
 
 Swan L. & C. Co. v. Frank, 186 
 
 Swartz V. Service, 1148 
 
 Sweet V. Jacocks, 930 
 
 Swepson v. Rouse, 227 
 
 Switzer v. McCulloch, 460, 464 
 
 Switzer v. Noffsinger, 86 
 
 Swope V. Chambers, • 749 
 
 Sykes v. Chadwick, 554, 556 
 
 Symington v. Symington, 340 
 
 Tabb 11. Boyd, 
 
 296, 875 
 
 Tabb V. Tabb, 
 
 1057 
 
 Taffe V. Warwick, 
 
 937 
 
INDEX TO CASES CITED. 
 
 Talbett i;. Bell, 1193 
 
 Taliaferro v. Minor, 851 
 
 Taliaferro, &c. v. Taliaferro, &c., 11, 136 
 Taliaferro v. Pryor, 1026 
 
 Talley v. Eeynolds, 156 
 
 Talley et al v. Starke's Adm'r et als, 
 
 690, 1170 
 TaUey v. Tyree, 506, 826 
 
 Tampa Suburban B. E. Co., In re, 1235 
 Taney v. Woodmansee, 1208 
 
 Tanner v. Dawson, 213 
 
 Tappi). Beverly, 501, 858, 875 
 
 Tapp's Adm'r iJ.-Eankin, 15, 19, 32, 260 
 Tappan v. Beardsley, 804 
 
 TarbeU v. Grigga, 924, 980 
 
 Tarleton v. Goldthwaite's Heirs, 982 
 Tarleton v. Victes, 317, 399 
 
 Tarter v. Wilson, 400 
 
 Tassey v. Church, 954 
 
 Tarply's Adm'rt). Dobyns, 31, 61 
 
 Tate V. Hawkins, 117 
 
 Tate V. Liggatt & Matthews, 
 
 168, 201, 545, 579 
 Tate V. Tate, 376, 377 
 
 Tate V. Vance, 317, 321, 322, 402, 600 
 Tatro V. Tatro, 338 
 
 Tatum V. BaUard, 171, 476, 977 
 
 Tavenner v. Barret, 847, 1028 
 
 Tayloe v. Adams, 984 
 
 Taylor v. Beale et als, 321 
 
 Taylor et al v. Benham, 86, 750 
 
 Taylor, Adm'r, &c. v. Bruce, 276 
 
 Taylor v. C. & O. E. E. Co. 340 
 
 Taylor v. Carpenter, 147, 468 
 
 Taylor's Adm'r v. Chowning, 991 
 
 Taylor v. Cooper, 1197 
 
 Taylor 11. Cusser, 1113 
 
 Taylor v. Eubank, 107 
 
 Taylor v. Fowler, 973 
 
 Taylor v. GUlies et al, 467 
 
 Taylor v. Harrison, 1026 
 
 Taylor v. Mahoney, 563 
 
 Taylor v. Mallory, 1138 
 
 Taylor v. Moore, 418, 553, 555 
 
 Taylor v. Netherwood, 1082 
 
 Taylor v. Palmer, 1182 
 
 Taylor v. Eead, 706 
 
 Taylor v. Salmon, 181 
 
 Taylor v. Savage, 1225 
 
 Taylor v. Short, 211 
 
 Taylor's Adm'r et als v. Spindle, 
 
 114, 189, 203, 219, 1141 
 Taylor v. Sutton, 30, 43 
 
 Taylor v. Taylor, 337, 338, 712, 1188 
 Taylor v. Wright, 720 
 
 Tazewell's Ex' or v. Saunders, 98, 869 
 Tazeifell et als v. Smith's Adm'r, 203 
 Tazewell's Ex'orr. Whittle's Adm'r, 
 
 82, 86, 97, 118, 701 
 Teafi V. Hewitt, 821, 934, 938 
 
 Teass v. St. Albans, 463 
 
 Teel V. Yancey, 1084, 1163, 1204 
 
 Tebbs I). Lee, 1209 
 
 Teeter 11. Williams, 623 
 
 Tells V. Lee, 1207 
 
 Temple & Taylor v. Temple, 608 
 
 Templeman v. Fauntleroy, 
 
 206, 646, 690, 850, 855, 856 
 Templeman v. Steptoe, 315, 819 
 
 Tennent's Heirs V. Pattons, 139, 170, 
 309, 421, 647, 852, 821, 859, 1153 
 Terrell v. Dick, 13 
 
 Terry v. Cole, 1150, 1163, 1197 
 
 Terry v. Commercial Bank, 830 
 
 Terry v. Dickinson, 21 
 
 Terry v. Fitzgerald, 471, 473 
 
 Terry v. Fontaine, 867 
 
 Terry v. Little, 286 
 
 Terry v. Wooding, 
 
 1030, 1067, 1141, 1145 
 Texas & P. Ey. Co. v. Murphy, 1236 
 Teter v. W. Va. C. & E. Ey. Co. 412 
 Thayer v. Mann, 988 
 
 Thomas v. Brathear, 371 
 
 Thomas v. Davidson, 1185, 1190 
 
 Thomas v. Davis, 935 
 
 Thomas v. Dawson & Wife, 689,706, 1156 
 Thomas v. Farmers Bank, 1156, 1177 
 Thomas v. Folwell, 1105 
 
 Thomas v. Gammel, 1027 
 
 Thomas v. Gaines, 577 
 
 Thomas v. 'Harvie, 135, 217 
 
 Thomas v. Jenks, 565 
 
 Thomas v. Jones, 1072 
 
 Thomas v. Lewis, ' 568 
 
 Thomas v. Oakley, 68, 461 
 
 Thomas v. Eowe, 439 
 
 Thomas v. Sellman, 267, 270 
 
 Thomas v. Soper, 546, 567 
 
 Thomas v. Stuart, 1026 
 
 Thomas v. Woolridge, 1260 
 
 Thomas v. Woodman, 467 
 
 Thompson v. Adams, 1212, 1217 
 
 Thompson v. Brown, 685, 750 
 
 Thompson v. Brocke, 1169 
 
 Thompson v. Bm-ke, 356 
 
 Thompson v. Carpenter, 471, 837 
 
 Thompson v. Chapman, 783 
 
 Thompson v. Clark, 278, 343, 344, 418 
 Thompson v. Davenports, 993, 995, 996 
 Thompson v. Dougherty, 110 
 
 Thompson, Ex' or, &c. v. Graham, 159 
 Thompson v. Halstead, 541 
 
 Thompson v. Jackson, 277 
 
 Thompson v. Lambe, 422, 748 
 
 Thompson v. MaxweU, 217, 218, 355 
 Thompson v. Eailroad Companies, 70 
 Thompson v. Tolmie, 1190 
 
 Thompson v. Whitaker Ins. Co. 
 
 85, 117, 324 
 
X.XXXTV 
 
 INDEX TO CASES CITED. 
 
 Thompson v. Whitman, 154, 1 55 
 
 Thomson v. Burke, 821 
 
 Thomson v. Edwards, et al, 354 
 
 Thomson v. Frist, 535 
 
 Thomson v. Wilcox, 1091 
 
 Thorn, &c. v. Germand, 349 
 
 Thornton v. Davenport, 567 
 
 Thornton v. Fairfex, 170, 223, 1198 
 Thornton v. Fitzhugh, 
 
 816, 817, 823, 864 
 Thornton v. Gordon, 279, 419, 433, 440 
 
 Thornton v. Grant, 466 
 
 Thornton v. Pickering, 567 
 
 Thornton v. Smith, 268 
 
 Thornton v. Stewart, 344 
 
 Thornton v. Thornton, 57, 67 
 Thornton v. Washington S. Bank, 514 
 
 Threewits v. Threewits, 337 
 
 Threlkelds v. Campbell, 26, 1185 
 Throckmorton v- Throckmorton, 
 
 411, 424, 429 
 
 Thurman v. Durham, 30, 44 
 
 Thurman v. Morgan, 746 
 
 Thurman ?). Wood's Ex' ors, 1145 
 
 Tichenor v. Allen et als, 172, 546 
 
 Tiemyer v. Tumquish, 1105 
 
 Tiemans v. Minihini, 131 
 
 Tiernans v. Schley, 656 
 
 Tieden v. Maslin, 502 
 
 TUgham v. Stewart, 607 
 
 Tillar v. Cook, 67 
 
 Tilsonv. Davis' Adm'r, 187,883 
 
 Tilton et al v. Cofield et al, 625 
 
 Tingle v. Fisher, 1142 
 
 Tingle v. Forsyth, 1030 
 
 Tinstman v. National Bank, 1227 
 
 Tod V. Baylor, 1027 
 
 Todd V. Bowyer, 871 
 
 Todd et al v. Daniel, 1224 
 Tood V. Gallego MiUg, 
 
 1177, 1179, 1180, 1183 
 
 Todd V. Outlaw, ' 1026 
 
 Tolen V. Tolen, 153, 154 
 
 Toll. Bridge v. Free Bridge, 493, 502 
 
 Tompkins v. Branch Bank, 249 
 
 Tompkins v. Mitchell, 398, 984 
 Tompkins, Ex' or, v. Stephens et al, 431 
 
 Tompkins & Co. v. Wiley, 795 
 Tomlin's Adm'r t>. Haw's Adm'r, 89 
 
 Toole V. Stephens, 318, 851 
 
 Tosh V. Kobertson, 727 
 
 Totten V. Nighbert, 156 
 
 TourviUe v. Naish, 1037, 1041 
 
 Tower's Appropriations, 1200 
 
 Towle V. Leavitt, 1174 
 
 Town V. Needham, 794 
 
 Towne v. Fiske, 942 
 
 Towner v. Lucas, 368 
 
 Townes v. Birchett, 175 
 
 Toivnsend v. Davis, ■ 168 
 
 Townsend D. Maynard, 107 
 
 Townsend v. Smith, 247 
 
 Townsend v. Westocot, 107 
 
 Townshend v. Duncan, 2C5 
 
 Townshend D. Windham, 110 
 
 Townville v. Naish, 397 
 
 Tracewell v. Boggs et al, 405, 445 
 
 Trader v. Jarvis, 94 
 
 Traders Bank u. Campbell, 143 
 
 Trapnall v. Conklyn, 205 
 
 Trapnall v. Richardson, 922 
 
 Travers v. Boss, 371 
 
 Travis v. Waters, 823 
 
 Trent v. Cartersville Bridge Co. , 486 
 Travelyan v. Loffl, 132, 359, 361, 500, 
 711, 715, 717, 764, 767, 789 
 Trimble v. Herold, 167, 1155, 1177 
 
 Trimble v. Woodhead et al, 546 
 
 Trimyer v. Pollard, 86 
 
 Triplett v. Allen, _ 481 
 
 Triplett et als v. Komine's Adm'r, 
 
 549, 550, 552 
 Triplett v. Wilson, 357 
 
 Tripp V. Hasceig, 943 
 
 Troth V. Eobertson, 589 
 
 Trotter v. Hughes, 482 
 
 Trout V. Warwick, 552, 932, 1038 
 
 Troubridge v. Stone, 94 
 
 Troy V. Evans, 1227 
 
 TruUinger v. Kofoed, 1082 
 
 Truly V. Wanzer, 28, 29 
 
 Truscott V. King, 1021 
 
 Truss V. Old, 274, 752, 753 
 
 Trustees v. Cowen, 239 
 
 Trustees v. Guthrie, 178 
 
 Trustees v. Greenhow, 292, 526, 1222 
 Trustees v. NicoU, 302 
 
 Trustees v. Walsh, 465 
 
 Tuberville v. Long, 156 
 
 Tuckahoe C. Co. v. Tuckahoe B. B. 
 
 Co., _ 485, 583 
 
 Tucker v. Sandridge, 608 
 
 Tucker v. Spaulding, 468 
 
 Tucker v. Tucker, 1175 
 
 Tufts V. Cooper, 205, 1104 
 
 Tuley V. Barton, 508 
 
 TunstaU v. Pollard, 161 
 
 Tunstall v. Withers, 86, 87, 93 
 
 Tupper V. Wise, 1217 
 
 Turk t;. Skileg, 196, 232, 239, 474, 
 
 1060, 1092, 1139 
 Turner v. Davis, 26 
 
 Turner v. Dawson, 306 
 
 Turner v. Dillard, 93 
 
 Turner v. Eailroad Co., 533 
 
 Turner v. Scott, 5p7 
 
 Turner v. Staples, ' 872 
 
 Turner v. Stip, 1025 
 
 Turner v. Turner, 
 
 22, 417, 433, 875, 1000 
 
INDEX TO CASES CITED. 
 
 LXXXV 
 
 TurnbuU v. Mann, 980 
 
 Tnrnham v. Shouae, 874 
 
 Tumipseed v. Cunningham, 992 
 
 Turpin t;. Poval, 585 
 
 Turpin v. Thomas, 13 
 
 Tuscumbia E. K. Co. v. Ehodes, 23 
 Tuttle V. Eskridge, 457 
 
 Twyne's Case, 567 
 
 Tyler v. Commonwealth, 902 
 
 Tyler v. Nelson, 69 
 
 Tyler, Sergeant, v. Taylor, Auditor, 
 
 &c. 482 
 
 TylerV Toms, 1168, 1189 
 
 Tylor V. Thompson, 721, 773 
 
 Tyreei". Willi9,ms, 1172 
 
 Tyson's Ex' or v. Glaize et als, 449, 833 
 
 U 
 
 Umbarger & Wife et als v. Watts et 
 
 als, 115, 286, 1212, 1217, 1219 
 
 tJnderhill v. Van Cortlandt, &c., 
 
 73, 319 
 Underwood v. McVeigh, 
 
 152, 155, 654, 830, 1184, 1202 
 Underwood v. Pack, 1186 
 
 Union Bank v. Geary, 418, 429 
 
 Union Bank v. Kerr & Glenn, 29 
 
 Union Bank v. Kichmond City, 872 
 Union Canal Co. v. Young, 1038 
 
 Union Inst. v. Boston, 868 
 
 Union Trust v. Souther, 532 
 
 Unis et als v. Charlton's Adm'r, 
 
 786, 790, 794, 802 
 United States v. Adams, 1248 
 
 United States v. Ames, 368 
 
 United States v. Boyd et al, 489 
 
 United States v. Certain Shares of 
 
 Stock, 147 
 
 United States v. Council of Keokuk, 
 
 55, 56 
 United States v. Fremont, 1244 
 
 United States v. Fossatt, 820, 1228, 1248 
 United States t). Gomez, 868, 1236, 1241 
 United States v. Grant, 1236 
 
 United States v. Green, 340 
 
 United States v. Guthrie, 455 
 
 United States v. Humphreys, 923, 1088 
 United States v. Jahn, 1231 
 
 United States v. Keokuk, 55, 56 
 
 United States v. Kirkpatrick, 489 
 
 United States v. McMasters, 799 
 
 United States v. Morrison, 189 
 
 'United States v. Nicholl, 489 
 
 United States v. N. O. Bailroad, 
 
 1014, 1015, 1019 
 United States v. Phoenix Ins. Co. 821 
 United States v. Vanzandt, 489 
 
 United States Baking Co. v. Bachman, 
 
 626 
 
 United States Bank v. Lee, 553 
 
 Universal Life Ins. Co. v. Devore, 
 
 264, 267, 269, 275 
 University v. Finch, 830, 1203 
 
 Updike's Adm'r v. Lane, 
 
 86, 87, 92, 136, 229 
 Upham V. Hamill, 1185 
 
 Upshaw D. Upshaw, &c. , 11 
 
 Upper Appomattox Co. v. Hamil- 
 ton & Man, 1083 
 Upton, Assignee, &c. v. Tribilcock, 
 
 1076 
 Urton V. Hunter, Harris & Co., 212 
 Utterback v. Cooper, 712, 749 
 
 Uzzell V. Mack, 1144 
 
 Vaiden u. Bell, 1211 
 
 Vaiden et als v. Stubblefield' s Ex' or, 
 
 236, 239, 372, 725 
 Valentine v. Cooley, 854 
 
 Valley Nat. Bank v. Harman, 1058 
 
 Vanbibber v. Beime, 265, 442 
 
 Vanbibber v. Sawyers, 170 
 
 Vance v. Bird, 874 
 
 Vance v. Evans, 171 
 
 Vance v. Kirk, 68, 698 
 
 Vance v. Snyder, 65, 805 
 
 Vance S. Co. v. Haught, 169, 281, 282 
 Van Artsdalen v. Van Artsdalen, 340 
 Vanderheyden v. Vanderheyden, 766 
 Vanderhost v. Bacon, 960 
 
 Vandever's Appeal, 473 
 
 Vanderwerker v. Glenn, 1078 
 
 Van Dorn v. Lewis Co. 70 
 
 Van Eppes v. Deusen, 738, 741 
 
 VangUder v. Hoffman, 889, 906 
 
 Van Lew v. Bohannon, 73 
 
 Van Lieuw v. Johnson, 247 
 
 Vanmetem. Vanmeter, 817,821,1008 
 Van Rennsalaer v. Jewett, 680 
 
 Van Eennaalaer v. Livingston, 87 
 
 Vansant v. Gaslight Co. 1248 
 
 Van Vechten v. Terry, 197, 225, 232 
 Van Vliet v. Jones, 984 
 
 Van Weel v. Winston, 452 
 
 Van Winckle v. Blackford, 85 
 
 Vanwick v. Seward, 107 
 
 Vann v. Hargett, 270 
 
 Vanscoy v. Stincomb, 798 
 
 Varet v. New York Ins. Co., 36, 60 
 Varney v. Bartlett, 172 
 
 Vamey v. Varney, 334 
 
 Varnum v. Camp, 548 
 
 Vass V. Magee, 502 
 
 Vassar v. Buxton, 1002 
 
 Vathir V. Zane, 30, 48, 419, 420 
 
 Vattier v. Hinde, 397, 1038 
 
 Vaughn V. Commonwealth, 1026 
 
LXXXVI 
 
 INDEX TO CASES CITED. 
 
 Vaughn v. Green, 
 
 604 
 
 Vaughn v. Johnson, 
 
 29, 30 
 
 Vaughn v. Jones, 
 
 932 
 
 Vaughn V. Thompson, 
 
 559 
 
 Vaughn v. Wilson, 
 
 175 
 
 Vaught V. Bider, 
 
 500 
 
 Veeder v. Fonda, 
 
 1171 
 
 Vennum v. Davis, 
 
 28 
 
 Vest V. Michie, 
 
 1057 
 
 Vermilya v. Fulton Bank, 
 
 191 
 
 Verplank v. Caines, 
 
 368, 369 
 
 Vick V. Bency, 
 
 480 
 
 Viele V. Hoag, 
 
 29, 37, 62 
 
 Vigel V. Hopper, 
 
 418 
 
 Vilas V. Jones, 
 
 29 
 
 Villard v. Eoberts, 
 
 754 
 
 Villers v. Beaumont, 
 
 105 
 
 Vilwig V. B. & O. E. E. Co., 67 
 
 Virginia C. & I. Co. v. Eoberson, 
 
 205, 1116, 1182, 1183 
 Virginia P. & M. Co. v. Cottrell, 
 
 455, 1183 
 Virginia F. & M. Ins. Co. v. N. Y. 
 
 C. M. Co., 651, 1251 
 
 Virginia v. Levy, 178, 224 
 
 Va. & Tenn. E. E. Co. v. Wash- 
 ington Co., 484 
 Vischer v. Vischer, 153 
 Vogler V. Montgomery, 548 
 Vorhees v. The Bank, 51, 1189, 1190 
 Vorhees v. Freeman, 936 
 Voshell V. Hynson, 516 
 Vrom V. Van Horn, 160 
 
 W 
 
 Wabash & E. Canal v. Beers, 824 
 
 Wade V. Clark, 773 
 
 Wade V. Hancock, 51 
 
 Wade V. Jones, 962 
 
 Wades v. Figgatt, 1083 
 
 Wades v. Greenwood, 1159 
 
 Waggoner v. Dyer, 69 
 
 Waggoner D. Gray^s Adm'rs, 215 
 
 Wagner v. Coen, 521 
 
 Wagner, &c. v. Baird, 98 
 
 Wait V. Day, 557 
 
 Wakefield v. Campbell, 1190 
 
 Waldron, ex parte, 340 
 
 Wales V. Alden, 670 
 Walker v. Beauchler, 830, 947, 1038 
 
 Walker v. Boggers, 1158 
 Walker v. Commonwealth, 886, 979 
 
 Walker v. Grayaon, 834 
 
 Walker v. Henry, 874 
 
 Walker v. Herring, 1172 
 
 Walker v. McDowell, 979 
 Walker's Ex' or v. Page et als, 
 
 139, 168, 853, 879, 1205, 1223 
 
 Walker v. Peck, 428 
 
 Walker v. Powers, 201, 267, 269, 979 
 Walker v. Bobbins, 28, 92 
 
 Walker v. Shepardson, 462 
 
 Walker v. Summers, 683 
 
 Walker's Ex' or et als v. Page et als, 
 
 139, 168, 879, 1223 
 Walkers. U. S., 1227 
 
 Wall V. AtweU, 255 
 
 WaU V. Hinds, 937 
 
 Wallace v. Lawyer, 641 
 
 Wallace v. Loomis, 533 
 
 Wallace v. McConnell, 55, 659 
 
 Wallace v. Penfield, 105, 109, 574 
 
 Wallace v. Eichmond, Assignee, 1 4, 28 
 Wallace & Ux v. Taliaferro & Ux, 11 
 Wallace's Adm'rs v. Treakle et als, 
 
 291, 363, 545, 578, 1135, 1182 
 Waller u. Armistead' 8 Adm'rs, 136 
 
 Waller v. Catlett,* 726 
 
 Waller v. Long, 33 
 
 WaUer v. Todd, 546, 551, 567, 572 
 
 Waller, &c. v. Waller, 606 
 
 Wallingsford v. Wallingsford, 338 
 
 Wallworth v. Holt, 181 
 
 Walmsley v. Child, 60 
 
 Walmsley v. Stalnaker, 480 
 
 Walsh V. Walsh, 138 
 
 Walter Baker & Co. v. W. H. Baker, 468 
 Walters v. Chichester, 365 
 
 Walters v. Farmers Bank, 60, 142 
 
 Walterson v. Miller, 1160 
 
 Walton V. Williams, 746 
 
 Walwyn v. Coutts, 106 
 
 Wampler v. -Wampler, 65 
 
 Waner v. Van Brunt, 443 
 
 Wanger v. Bright, 247 
 
 Wanmaker v. Van Buskirk, 80, 124 
 Ward V. Anedendo, 863 
 
 Ward 11. Bokkelin, 171,201,438 
 
 Ward V. Chamberlain, 326 
 
 Ward V. Cornett, 423 
 
 Ward V. Funsten, 764 
 
 Ward V. Kilpatrick, 939 
 
 Ward V. Smith, 726 
 
 Ward V. Todd, 60 
 
 Ward V. Vass, 489 
 
 Ward V. Ward, 698, 703 
 
 Ware v. Brush, 136 
 
 Ware v. Stakey, 684, 694, 1155 
 
 Ware v. Ware, 753 
 
 Warner v. Conant, 29 
 
 Warner v. Heiden, 1093 
 
 Warren County v. Marcy, 220, 1091 
 Warren v. Saunders, 
 
 245, 246, 248, 260, 262 
 Warren v. Syme, 498 
 
 Warren v. SynUe, 1045 
 
 Warring v. Williams, 560 
 
 Warwick v. Norvell, 38, 56 
 
 Warwick v. Warwick et als, 797, 798 
 
INDEX TO CASES CITED. 
 
 Wash., Alex., &c. E. E. Co. v. 
 
 Alex., &o. E. E. Co., 186, 474 
 
 Washington Ave., 482 
 
 Wash. E. E. V. Bradleys, 322, 350, 443 
 Wash. & N. O. Tel. Co. v. Hobson, 245 
 Washington City v. Dennison, 1248 
 
 Washington City S. B. v. Thornton, 
 
 267, 269, 272, 480 
 Washington's Ex' or v. Abraham et 
 
 als, 931 
 
 Washington v. Opie, 726 
 
 Washington's Ex' or ti. Parks, 510 
 
 Washington Bridge Co. v. Stewart, 831 
 Wass V. Wass, 328, 336 
 
 Wasson v. Conner, 1029 
 
 Water Works Co. v. Barret, 834 
 
 Waters, &c. v. Harrison, &c., 790 
 
 Waters v. Travis, 97 
 
 Watertown u. Mayo, 464 
 
 Watkins, ex parte, 1190 
 
 Watkins v. Carlton, 
 
 809, 897, 900, 904, 906 
 Watkins v. Stewart, 714 
 
 Watkins v. West WythevUle L. & 
 
 I. Co., 476, 478 
 
 Watkins v. Worthington, 1162 
 
 Watkins v. Wortman, 68, 155, 545 
 
 Watkins et als v. Young et alg, 679 
 
 Watson V. Fletcher, 492, 706 
 
 Watson V. Hoy, 27, 1185, 1186, 
 
 1187, 1190 
 Watson V. Hunter, &o. , 459 
 
 Watson V. Michael, 1024 
 
 Watson V. Palmer, 30 
 
 Watson V. Sutherland, 12, 66, ^69 
 
 Watson V. Wilcox, 1091 
 
 Watson V. WUson, 1090 
 
 Watt V. Starke, 891, 899, 900, 606, 910 
 Watterson v. Miller, 1158 
 
 Watts V. Gayle, 30 
 
 Watts II. Kinney, 647 
 
 Watts' Ex'ors v. Eobertson, 649 
 
 Watts V. Taylor, 919 
 
 Wayland v. Cronk, 132, 322, 724 
 
 Wayland v. Tucker, 60, 68 
 
 Wayt D. Carnither, 1068 
 
 Weaver v. Livingston, 417 
 
 Weaver v. Vowles, 401 
 
 Webb V. Dye, 606 
 
 Webb V. Pell, 216, 217, 218, 358 
 
 Webb, Trustee, v. Sharp, 1083 
 
 Weber v. Lee County, 55 
 
 Webster v. Couch, 24, 326, 503 
 
 Weed V. Boutelle, 1070 
 
 Weeton v. Woodcock, 462 
 
 Weigand v. Alliance S. Co., 1070 
 
 Weinburg v. Eempe, 1032 
 
 Weisiger v. Eichmond Ice M. Co. , 72 
 Welch V. Mandeville, 1225 
 
 Welch V. Solenberger, 405, 1118 
 
 Welch V. Stewart, 115 
 
 Welch V. Sykes, 925 
 
 Welby V. Eutland, 32 
 
 Welfly V. Shend. I. L. & M. Co., 
 
 276, 452, 814 
 Wellborn v. Williams, 1142 
 
 Wells V. Calnan, 1197 
 
 Wells V. Hughes, 490 
 
 WeUst;. Sewells Pomt, &c. Co., 267, 269 
 Wells V. Washington, 87, 89 
 
 Wells V. Woods, 445 
 
 Wells-Stone M. Co.. v. Truax, " 795 
 
 Welles V. Coles, 550, 551, 556, 575, 1028 
 Wellesley v. Beaufort, 340 
 
 Weltou V. Hutton, 345, 350 
 
 Wemway v. Pauling, 925 
 
 Wendell v. Wendell, 266 
 
 Wendevart v. Allen, 28 
 
 Werdenbaugh v. Eeid, 86, 114 
 
 Wemick v. McMurdo, 159, 160, 745 
 Wemwag v. Pawling, 927 
 
 Wesley Church v. Moore, 60 
 
 West V. Beanes, 63 
 
 WestiJ. Belches, 864 
 
 West' s Ex' or v. Logwood, 
 
 16, 500, 503, 892 
 West V. Eandall, 141, 266 
 
 West' s Adm' r et als v. Thornton et als, 
 
 125 
 West V. West's Ex' or, 804, 1115 
 
 Wescott V. Cody, 315 
 
 West V. West, 1055, 1097 
 
 West Va. V. Douglass, 376 
 
 West Va. O. & O. L. Co. v. Vinal, 317 
 Western Ins. Co. v. Eagle F. Ins. Co., 
 
 368 
 Western Lunatic Asylum v. Miller, 137 
 Western M. &. M. Co. v. Va. Can- 
 
 nel Coal Co., 400 
 
 452, 
 
 460 
 
 Whaley v. Dawson, 
 
 267 
 
 309 
 
 Wharan v. Broughton, 
 
 
 176 
 
 Wharton v. May, 
 
 
 52 
 
 Wheatley v. Calhoun, 
 
 
 956 
 
 Wheatley v. Martin's Adm'r, 
 
 592 
 
 594 
 
 Wheatley' s Heirs v. Calhoun, 
 
 956 
 
 972 
 
 Whelan v. Whelan, 
 
 
 200 
 
 Wheeland v. Swartz, 
 
 
 993 
 
 Wheeler & Wilson Mfg. Co. v. 
 
 
 Teetzlaf, 
 
 
 1002 
 
 Wheeler v. Wheeler, 
 
 
 330 
 
 Wheeler v. Ins. Co., 
 
 
 959 
 
 Whitacre v. Improvement Co., 
 
 
 94 
 
 Whiteacre, Sheriff, v. Eector, 
 
 &c.. 
 
 967 
 
 White V. Attorney General, 
 
 
 178 
 
 White, &c., V. Bannister's Ex 
 
 ors, 
 
 25 
 
 White V. Buloid, 
 
 
 321 
 
 White V. Cahal, 
 
 
 29 
 
 White V. Carpenter, 
 
 
 952 
 
 White!). Clay's Ex' or. 
 
 495 
 
 881 
 
 White V. Crew, 
 
 28, 29 
 
liZXXVIII 
 
 INDEX TO CASES CITED. 
 
 White V. Fitzhugh, 493 
 
 White V. Givens, 548 
 
 White V. Hoflher, 963 
 
 White's Ex' or v. Johnson et als. 688 
 White V. Kennedy, ' 210 
 
 White V. Mech. B. F. Associaton, 189 
 White V. Owens, 966 
 
 White V. Smith, 588 
 
 White V. Stender, 483 
 
 White V. Stuart, Buchanan, &c., 311 
 White t). Tenant, 618,619 
 
 White V. Trotter, 925 
 
 White »i. Turner's Adm'r, 445 
 
 White V. Valley B. & I. Co., 1216 
 
 White V. Washington's Ex' or, 
 
 19, 21, 42, 61, 63 
 White V. White, 1157, 1201 
 
 Whitesel et al v. Whitsel et al, 608 
 
 White Sulphur Spring-s Co. v. Eob- 
 
 inson, &c., 425, 503 
 
 Whitehead D. Bradley, 1168,1198 
 
 Whitehead v. Coleman, 614, 622 
 
 Whitehead's Adm'r v. Whitehead 
 
 et als, 693, 750, 766 
 
 Whiting V. Bank of U. S., 217, 355 
 Whiting t). Story Co., . 1080 
 
 Whitlock V. Johnson, 93 
 
 Whitmarsh v. Campbell, 348, 349 
 
 Whitmer v. Spitzer, 1217 
 
 Whitney v. The Bank, 815 
 
 Whitney v. Goddard, 136 
 
 Whitney v. McKinney, 172, 199 
 
 Whittaker i;.- Charleston Giis Co., 1074 
 Whitten v. Saunders, 
 
 354, 358, 359, 975, 1042 
 Whittemore v. Coster, 237 
 
 Wliitworth V. Davis, 146 
 
 Wiant V. Hays, 570, 1011 
 
 Wick V. Dawson, 324, 638, 640 
 
 Wickes V. Clarke, 555 
 
 Wickham v. Lewis, Martin & Co., 105 
 Wigg V. Wigg, 1037, 1041 
 
 Wilcox V. Calloway, 397, 409, 1038 
 
 WUder v. Jenkins, 127 
 
 Wilden v. Keeler, 665 
 
 Wildey v. McCarnell, 30, 47 
 
 Wiles V. Wiles, 9 
 
 Wiley V. Mahood, 1155, 1161 
 
 Wilfong V. Johnson, 1088 
 
 WUker v. Hoppock, 1174 
 
 Wilkes V. Rogers, 698 
 
 Wilkins v. EUet, 161 
 
 Wilkins v. Gordon, 474 
 
 Wilkins v. Woodfin, 419 
 
 Wilkinson v. HoUoway, 658 
 
 Wilkinson v. Merrill, 962, 963, 970 
 Wilkinson v. Olliver, 138 
 
 WUlard.'!). Bassett, 720 
 
 Willard v. Tayloe, 227 
 
 WUlard V. Worsham, 1143 
 
 William & Mary College v. Powell, 
 
 428, 555, 1069 
 Williams v. The Bank, 1224 
 
 Williams v. Bankhead, 142 
 
 Williams f. Benedict, 922 
 
 WUliams v. Blakey, 889, 890, 1198 
 
 Williams' Adm'r t). Briggs, 570,1017 
 Williams v. Bruffy, 730, 1239, 1264 
 Williams v. Clark, 691, 696, 1216 
 
 WiUiams v. Corwin, 421 
 
 Williams v. County Court, 483 
 
 Williams v. Davis, 29 
 
 Williams v. Donaghe's Ex' or, 620, 706 
 Williams v. Field, 816, 821 
 
 Williams v. Hagood, 264 
 
 Williams v. Hollingsworth, 952 
 
 Williams v. Hudson, 33 
 
 Williams v. Hugumier, 1103 
 
 Williams v. Jackson, 981 
 
 Williams v. Lee, 29, 30 
 
 Williams et al v. Lord & Eobinson, 
 
 204, 563, 565, 569, 573, 
 608, 1008, 1122, 1124 
 Williams' Adm'r J). Newman, 275,746 
 Williams v. Owens, 995 
 
 Williams v. Presb. Soc. , 84 
 
 Williams v. Price, 29 
 
 WiUiams v. Sexton, 264 
 
 WUliams' Adm'r i;. Skinker, 726, 1205 
 Williams v. Stonestreet, 722 
 
 WUliams v. Sloan, 712, 749 
 
 WUliams v. Tipton, 201, 301, 577 
 
 Williams v. Watkins, 969 
 
 Williams v. WiUiams, 342, 725 
 
 Williamson v. Branch Bank, 160, 1037 
 WUliamson et al v. Berry, 
 
 831, 1150, 1190 
 WUUamson v. Bowie, 620, 629, 661 
 Williamson v. Cline, 205 
 
 WUliamson v. Culpepper, 1074 
 
 WiUiamson v. Farley, 567 
 
 WUliamson v. Farrow, 1163 
 
 WUUamson v. Gayle et als, 
 
 133, 151, 624, 649 
 WUliamson v. Gordon, 138, 139, 397 
 Williamson v. Hays, 899, 902 
 
 Williamson's Ex' or u. Howard, 1261 
 Williamson v. Johnson, 30 
 
 WiUiamson v. Kincaid, 1218, 1227 
 
 WUliamson v Kline, 
 
 986, 1094, 1100, 1103, 1134 
 Williamson v. Ledbetter, 355 
 
 Williamson, Trustee, v. Paxton, 
 
 65, 261, 390, 391, 392 
 WUliamson' s Adm'r v. Eailroad 
 
 Co., 532, 583, 1079 
 
 WiUiamson v. WUson, 517, 536 
 
 Williamson v. Winston, 1103 
 
 WUlard?;. Crainer, 1028 
 
 WUlink V. MUes, 1028 
 
INDEX TO CASES CITED. 
 
 IXXXIX 
 
 Willis V. Eastern T. and B. Co., 1227 
 Willis V. Henderson, 1054 
 
 Willis V. Moore, 1015 
 
 Willis V. Willis, 265 
 
 Willitts V. Waite. 523 
 
 Willoughby v. Thomas, 598, 599 
 
 Wills' Adm'ri). Dunn's Adm'r, 
 
 163, 682, 686, 713, 779 
 Wills V. Spraggins, 602, 604 
 
 Wilsey v. Maynard, 29 
 
 Wilson V. Anthony, 84 
 
 Wilson V. Bailer, 1095 
 
 Wilson V. Bank of Mt. Pleasants, 155 
 Wilson V. Barnum, 895 
 
 WUson V. Blair, 1227 
 
 Wilson V. Branch, 1157 
 
 Wilson V. Buchanan, 
 
 100, 102, 103, 107, 110, 575 
 Wilson & Trent v. Butler, &c., 460, 470 
 Wilson V. Boyce, 1010 
 
 Wilson V. Carpenter, 476, 478 
 
 Wilson V. Davisson, 554, 670, 972 
 
 Wilson V. Floyd, 489 
 
 Wilson, &c., V. Graham, 984 
 
 Wilson V. Harper, 137 
 
 Wilson V. Herbert, 1104 
 
 Wilson V. Hundley, 1078 
 
 Wilson V. Koonts, 658 
 
 Wilson V. Lee, 29 
 
 Wilson V. Little, 120 
 
 Wilson V. Perry, 178 
 
 WUeon V. Eucker, 502 
 
 WUson & Wife v. Smith, 
 
 191, 309, 310, 313, 831, 833, 1090 
 Wilson V. Tebbetts, 489 
 
 Wilson ». Wilson's Adm'r, 656, 1249 
 WUson V. Woodruff, 440 
 
 Wimbish v. Blanks, 472, 715 
 
 Wimbish v. Breeden, 154, 920 
 
 Wimbish v. Gross, 861 
 
 Wimbish v. Eawlins, 
 
 296, 702, 718, 758 
 Wimer v. Wimer, 548 
 
 Wimer v. Wimer, 863 
 
 Winans v. N. Y. & B. E. E. Co., 794 
 Winchelsea v. Garrelfy, 170 
 
 Wmchester & Stransburg E. E. Co. 
 
 V. Colfelt, 231, 286, 1217 
 
 Winder v. Diffenderfer, 801 
 
 Windrum v. Parker et al, 469, 885 
 
 Windsors. McVeigh, 920 
 
 Winfield v. Baron, 64 
 
 Wingfield v. Crenshaw, 167, 463, 1219 
 Wingo V. Purdy, 612, 672, 674 
 
 Winn V. Bowlers, 64 
 
 Winship V. Pitts, 459 
 
 Winslow V. Fletcher, 636 
 
 Winslow V. Merchants Ins. Co. , 
 
 934, 937, 1008 
 Winston v. Ewing, 955 
 
 Winston v. Johnson's Boor's, 357, 686 
 Winston et als v. Midlothian Coal 
 ^ Co., 247, 449 
 
 Wmston V. Starke et al, 881 
 
 Winthrop v. Carlton, 659, 912 
 
 Winthrop Iron Co. v. Meeker, 821 
 
 Winters v. Ethell, 1237 
 
 Wise V. Fort, 608 
 
 Wise V. Prey, 963, 969 
 
 Wise V. Lamb, 22, 430, 888, 889, 906 
 Wiser V. Blackley, 133, 218, 358 
 
 Wiseman v. Wiseman, 338 
 
 Wisner v. Bamet, 84, 118 
 
 Wissler v. Craig, 92 
 
 Wiswall V. HaU & Wife, 73 
 
 Withers v. Baird, ' 1028 
 
 Withers v. Carter, 917, 918, 950, 1049 
 Withers v. Fuller, 648, 649 
 
 Withers v. Sims, 267, 270, 381, 401 
 Witherspoon v. Spring, 978 
 
 Witz, Biedler & Co. v. Osbum, 
 
 572, 578, 1216 
 Witz, &c. V. Mullins Per. Eep., 
 
 983, 1208 
 Wolbert v. Lucas, 482 
 
 Wolcott V. Jones, 64 
 
 Wolfe V. Bates, 29 
 
 Wolfe V. Fink, 986 
 
 Wolford v. Baxter, 934 
 
 Womack v. Paxton, 230, 864, 1167, 1203 
 Wood V. Chamberlain, 922 
 
 Wood V. Chambers, 548, 559 
 
 Wood V. Colvm, 1185, 1190 
 
 Wood V. Dwight, 507 
 
 Wood V. Gamble, - 925 
 
 Wood V. Gamett, 765 
 
 Wood V. Harmison, 428 
 
 Wood V. Harrison, 827 
 
 Wood V. Mann, 170 
 
 Wood V. Eiker, 138 
 
 Wood V. Watkinson, 925, 955 
 
 Wood's Petitioners, In re, 1235 
 
 Woods V. Farmere, 1055, 1059 
 
 Woods V. Early, 460 
 
 Woodard v. Sibert, 953 
 
 Woodbum v. Fellbates, 920 
 
 Woodcock V. Bennet, 276 
 
 Woodford V. Hartford F. Ins. Co., 621 
 Wooding V. Bradley, 703 
 
 Woodhouse v. Farebroth, 30 
 
 Woodroffe v. Paruham, 20 
 
 Woodruff 11. Bunce, 480 
 
 Woodson et al v. Barrett & Co., 18, 20 
 Woodson V. Johns, 506 
 
 Woodson V. Leybum, 831, 1259 
 
 Woodson's Trustees. Perkins, 233 
 
 Woodson V. Woodson, 998 
 
 Woodward v. Seely, 302 
 
 Woodworth v. Van Buskirk, 30 
 
 Woodsworth v. Sweet, 226 
 
INDEX TO CASES CITED. 
 
 Woodyard v. Buffington, 163 
 
 Woodyard, Keceiver, v. Polsley, 
 
 86, 115, 700, 701 
 Woolsey v. Dodge, 66 
 
 Woolsey, &c. v. Livingston, &c., 177 
 Woolstonecraft, In re, 340 
 
 Wooster v. Marshall, 840 
 
 Wooster v. WoodhuU, 840 
 
 Word V. Mann, 222 
 
 Worsham v. Hai-daway's Adm'r, 1185 
 Worthington v. Lee, 232 
 
 Worthington v. Scribner, 377 
 
 Worthington v. Shipley, 107 
 
 Worthington v. Staunton et al, 847 
 
 Wotten, &o. V. Copeland, 307 
 
 Wray v. Davenport, 565 
 
 Wren v. Moncure, 479 
 
 Wright V. Austin, 33 
 
 Wrighti). Bircher'sEx'or, 1084 
 
 Wright V. Hencock & Co. , 561 
 
 Wright V. Mosley, 11 
 
 Wright V. Eambo, 656 
 
 Wright V. Eemington, 1092 
 
 Wright V. Smith, 1257 
 
 Wright et als v. Strother et als, 821, 879 
 Wroten' s Assignee v. Armat et als, 
 
 583, 1021, 1080 
 Wyatt V. Simpson, 207 
 
 Wyatt V. Thompson, 406, 698 
 
 Wyatt V. Watkins, 1017 
 
 Wych V. Meal, 191 
 
 Wyliet). Cox, 1070 
 
 WythevUle C. I. & D. Co. v. Frick, 
 
 435, 1203 
 Wyllie and Wife v. Venable's Ex' or, 
 
 295, 682 
 Wynans v. N. Y. & Erie K. E., 794 
 Wynch v. Meal, 146, 191 
 
 Wynn v. Harmau's Devisees, 881 
 
 Wynnu Wyatt' s Adm'r, 625 
 
 Wynne v. Newman's Adm'r, 43, 58 
 
 Wytheville C. I. &D. Co. v. Frick, 1158 
 
 Yale V. Yale, 956 
 
 Yancey v. Fen wick, 15 
 
 Yancey v. Field, 568 
 
 Yancey v. Mauck et als, 985, 987, 1160 
 Yarborough v. Thompson, 296 
 
 Yarwood v. Eldridge, 893 
 
 Yates & Bro. v. Cragg, 1159 
 
 Yates V. Lang, 572 
 
 Yates V. Law, 428 
 
 Yates D, Milwaukee, 483 
 
 Yates V. Eobertson, 918, 847 
 
 Yates V. Stewart, 324, 690 
 
 Yates V. Whetstone, 722 
 
 Yates V. AVilson, 724, 821 
 
 Yerby v. Grigsby, 318, 847 
 
 York Co. V. Central E. E., 794 
 
 Yost V. Geisler, 1187 
 
 Yost V. Porter, 142, 1183 
 
 Young, by, &c. v. Earner et als, 
 
 603, 606, 608, 609 
 Young and Wife v. Cabell's Ex' or, 
 
 832, 1263 
 Young et als v. Devries et als, 
 
 552, 932, 1032 
 Young V. Duval, 1026 
 
 Young V. Eaaely, 951, 952 
 
 Young " Grundy, 507 
 
 Young V. Lathrop, 580 
 
 Young V. McClung, 368, 1182, 1185 
 Young's Adm'r & Bowyer v. Mc- 
 Clung, &c., 512, 877, 1191 
 Young V. Scott, 368 
 Young V. Skipwith, 816, 819 
 Young V. Wame, &c. , 742 
 Young V. White, 107 
 Young V. Willis, 564 
 Youngblood v. Sexton, 482 
 Youngblood v. Vastine, 1036 
 Youngston Bank v. Hughes, 1218 
 Yuille V. Wimbish, 28 
 
 Zame v. Fink, 1087 
 
 Zane's Devisees v. Zane, 276, 875 
 
 Zell Guano Co. r. Heatherly, 256, 275, 
 
 404, 438, 452, 472, 544, 
 578, 579, 1006, 1036 
 Zates V. Lans, 1101 
 
 Zetelle v. Myers, 67, 70 
 
 Zickefoose v. Kuykendall, 45 
 
 Zirkle v. McCue et als, 
 
 138, 139, 305, 309, 310, 
 
 752, 853, 1189 
 
 Zoll & Dunsmore v. Campbell, 502 
 
 ZoUman v. Moore et als, 397, 1038, 1189 
 
 Zuchtmann v. Eoberts, 1002 
 
CHANCERY PRACTICE. 
 
 CHAPTER I. 
 
 JURISDICTION OF COURTS OF EQUITY. 
 
 ?1. 
 
 Origin of Chancery Jurisdiction. 
 
 in 
 
 §2. 
 
 Erroneous Views of Chancery Ju- 
 
 
 
 risdiction. 
 
 ?12 
 
 ?3. 
 
 Comparison of Law and Equity 
 
 
 
 Jurisdiction. 
 
 ?13 
 
 H- 
 
 Creation of Eights in Equity. — 
 
 
 
 Subrogation and Equity to a Set- 
 
 ?14 
 
 
 tlement. 
 
 
 §5. 
 
 Interference by Courts of Equity 
 with Proceedings at Law. 
 
 §15 
 
 ?6. 
 
 Principles upon which Courts of 
 Equity Interfere. 
 
 §16 
 
 ?7. 
 
 When Equity wUl set aside a Judg- 
 ment at Law. 
 
 ?17 
 
 ?8. 
 
 When Equity will not set aside a 
 Judgment at Law. 
 
 
 ?9. 
 
 Belief to one Party and not to 
 
 
 
 another. 
 
 ?18 
 
 ?10 
 
 . Interference in Advance of Judg- 
 
 
 
 ment. 
 
 §19 
 
 New Trials of Cases at Law 
 Awarded by Courts of Equity. 
 
 Interference with Foreign Judg- 
 ments. 
 
 What Court should Grant the In- 
 junction. 
 
 The Conditions upon which Equity 
 will Interfere. 
 
 The Effect of Interference by a 
 Court of Equity. 
 
 Concurrent Jurisdiction with Law 
 Courts. 
 
 What is such a Eemedy at Law 
 as will prevent Jurisdiction in 
 Equity ; and when the objec- 
 tion to Jurisdiction should be 
 made. 
 
 A General Classification of the 
 Subjects of Equity Jurisdiction. 
 
 Maxiins of Equity. 
 
 Griffin of Chancery Jurisdiction. 
 
 § 1. The theory of the English system of Law was, that all 
 judicial authority vested in the king ; but the inconvenience of its 
 practical application led to its being delegated to the courts of 
 common law, to be there exercised according to certain fixed forms 
 and settled principles. The insufficiency of these courts to do 
 1 
 
2 JTJHISDICTION OE COURTS OF EQUITY. [§ 2 
 
 exact justice, especially in cases where, to use the language of 
 King Henry IV,* " one party was so great and rich, and the other 
 so poor that he could not otherwise have remedy," led frequently 
 to petitions seeking the direct interposition of king or parlia- 
 ment,^ by whom the petitioners were naturally referred to the 
 Lord Chancellor, as the keeper of the great seal. The relief 
 granted to these petitioners, though probably at first intended to 
 be administered only where the forms of the common law were 
 insuificient, was not in fact confined to such cases ; and through a 
 long series of years, jurisdiction in derogation of the common law, 
 and upon no fixed principles of equity, was excercised to the great 
 injury of that reign of law which has ever been dear to English 
 people. 
 
 The industrious and learned text writers' have traced the course 
 of the early chancery jurisdiction, and have pointed out how this 
 uncertain personal prerogative, resisting first the petitions, then 
 the remonstrances, yielded at last to the threats of the commons, 
 until it was admitted to be a settled principle that the Chancellor 
 could grant no relief in any case for which the common law 
 presented an effectual remedy. 
 
 Having once reached the conclusion that chancery created no 
 rights which the law denied, it became an immediate consequence 
 that that tribunal in granting relief would " follow the law," and 
 would administer equity to no applicant unless he himself should 
 first do equity. Whether it may still be regarded as true that 
 equity creates no rights denied by the law, and what is the true 
 meaning of the two maxims just quoted, will be subjects to be 
 further considered in this chapter. 
 
 Erroneous Views of Chancery Jurisdiction. 
 
 § 2. The grievous abuse of chancery jurisdiction consisted in, 
 as well as arose from, its great uncertainty, and from the long 
 
 1 3 Kot. Pari. 266. ^ story's Equity Jurisprudence, Vol. I, § 42. 
 'Adam's Equity, 56 ; Story's Equity Jurisprudence, Vol. I, Ch, 1, 
 
§ 3] EHEONEOITS VIEWS OF CHANCERY JURISDICTIOX. 3 
 
 continued mistaken apprehension of what was the true relation of 
 equity to the common law. 
 
 Thomas Selden^ thus complains of it : " For law we have a 
 measure, and know what to trust to. Equity is according to the 
 conscience of him that is chancellor ; and as that is larger or nar- 
 rower so is equity. 'Tis all one as if they should make the 
 standard for the measure of the channcellor's foot. What an 
 uncertain measure would this be ! One chancellor has a long foot, 
 another a short foot, a third an indifferent foot. It is the same 
 thing with the chancellor's conscience." Among other erroneous 
 impressions of the jurisdiction of courts of equity it was supposed 
 that they would enforce contracts void at law, but binding on the 
 conscience ; that there the law would be corrected where it was 
 defective, so that the chancellor need not say sed ita lex scripta est ; 
 that these courts .judged of the whole matter according to good 
 conscience ; that their province was to temper the rigor of the law 
 " with the sweetness of mercy ; " ^ and that equity was a mitiga- 
 tion or moderation of the common law in some circumstance, either 
 of the matter, person, or time, and often dispensed with the law 
 
 itself. 
 
 Comparison of Law and Equity Jurisdiction. 
 
 § 3. Against all such erroneous ideas Blackstone thus pro- 
 tests : " It is said that it is the business of a court of equity in 
 England to abate the rigor of the law. But no such power is 
 contended for ; " ^ and again : " But there is not a single rule 
 of interpreting laws, whether equitably or strictly, that is not 
 equally used by the judges in the courts both of law and equity. 
 The construction must in both be the same ; or if they differ it is 
 only as one court of law may happen to differ from another. 
 Each endeavors to fix and adopt the true sense of the law in 
 question. Neither can enlarge, diminish, or alter the sense in a 
 single tittle." 
 
 'Seidell's Table Talk, title Equity. 
 
 2 St. Gennain, Dialogue 1, Ch. 16. '3 Black. Com. 430. 
 
4 JURISDICTION OF COURTS OF EQUITY. [§ 3 
 
 Sir Josept Jekyll, in Cowper v. Cowper, 2 P. Will. 753, says/ 
 "And as it is said in Rooks' Case (5 Rep. 99 b.) that discretion 
 is a science, not to act arbitrarily according to men's wills and 
 private affections ; so that discretion which is executed here is to 
 be governed by the rules of law and equity, which are not to 
 oppose, but each in its turn to be subservient to the other. This 
 discretion in some cases follows the law implicitly ; in others assists 
 it and advances the remedy ; in others again it reheves against the 
 abuse, or allays the rigor of it. But in no case does it contradict 
 or overturn the grounds or principles thereof, as has been some- 
 times ignorantly imputed to the court. That is a discretionary 
 power which neither this nor any other court, not even the highest, 
 acting in a judicial capacity, is by the constitution intrusted 
 with." 
 
 " There are," said Lord Redesdale,^ " certain principles on 
 which courts of equity act, which are very well settled. The 
 cases which occur are various, but they are decided on fixed prin- 
 ciples. Courts of equity have, in this respect, no more discretionary 
 power than courts of law. They decide new cases as they arise 
 by the principles on which former cases have been decided ; and 
 may thus illustrate, or enlarge, the operation of those principles. 
 But the principles are as fixed and certain as the principles on 
 which the courts of law proceed." And says Judge Story,' " * * 
 the courts of common law are in like manner perpetually adding 
 to the'doctrines of the old jurisprudence, and enlarging, illustrating 
 and applying the maxims which were at first derived from very 
 narrow and obscure sources. For instance, the whole law of 
 insurance is scarcely a century old ; and more than half of its 
 important principles and distinctions have been created within the 
 last fifty years." 
 
 But we know no more distinct and comprehensive definition 
 
 1 See also Burgess v. Wheate, 1 W. Black. E. 123. 
 
 ^ Mitford on Plead. Eq. p. 4, notes (2). 
 
 ' Story's Equity Jurisprudence, Vol. I, § 20, 
 
§ 3 COMPAEISON OF LAW AND EQUITY JURISDICTION. 5 
 
 of the relation between the courts of law and equity than is given 
 in the following language of Judge Story :^ "The distinction 
 between the former and the latter courts may be further illustrated 
 by considering the different natures of the rights they are designed 
 to recognize and protect, the different natures of the remedies 
 which they apply, and the different natures of the forms and 
 modes of proceeding which they adopt to accomplish their re- 
 spective ends. In the courts of common law, both of England 
 and America, there are certain prescribed forms of action, to which 
 the party must resort to furnish him a remedy ; and if there be no 
 prescribed form to reach such a case he is remediless ; for they 
 entertain jurisdiction only of certain actions, and give relief accord- 
 ing to the particular exigency of such actions, and not otherwise. 
 In those actions a general and unqualiiied judgment only can be 
 given, for the plaintiff, or for the defendant, without any adapta- 
 tion of it to particular circumstances. But there are many cases 
 in which a simple judgment for either party, without qualifications 
 or conditions, or peculiar arrangements, will not do justice ex cequo 
 et bono to either party. Some modifications of the rights of both 
 parties may be required ; some restraints on one side, or on the 
 other, or perhaps on both sides ; some adjustments involving recip- 
 rocal obligations or duties ; some compensatory or preliminary or 
 concurrent proceedings, to fix, control or equalize rights ; some 
 qualifications or conditions, present or future, temporary or perma- 
 nent, to be annexed to the exercise of rights or the redress of 
 injuries. In all these cases courts of common law cannot give 
 the desired relief. They have no forms of remedy adapted, to the' 
 objects. They can entertain suits only in a prescribed form, and 
 they can give a general judgment only in the prescribed form. 
 From their very character and organization they are incapable of 
 the remedy which the mutual rights and relative situations of the 
 parties, under the circumstances, positively require. But the courts 
 of equity are not so restrained. Although they have prescribed 
 1 Story's Equity Jurisprudence, Vol. I, | 26, § 27, § 28. 
 
6 JURISDICTION OF COUBTS OF EQUITY. [§ 3 
 
 forms of proceeding, the latter are flexible, and may be suited to 
 the different postures of cases. They may adjust their decrees so 
 as to meet most, if not all, of these exigencies ; and they may vary, 
 qualify, restrain and model the remedy so as to suit it to mutual 
 and adverse claims, controlling equities and the real and substantial 
 rights of all the parties. Nay, more ; they can bring before them 
 all parties interested in the subject-matter, and adjust the rights of 
 all, however numerous ; whereas courts of common law are com- 
 pelled to limit their inquiry to the very parties in the litigation 
 before them, although other persons may have the deepest interest 
 in the event of the suit. So that one of the most striking and 
 distinctive features of courts of equity is, that they can adapt their 
 decrees to all the varieties of circumstances which may arise, and 
 adjust them to all the peculiar rights of all the parties in interest ; 
 whereas courts of common law (as we have already seen) are bound 
 down to a fixed and invariable form of judgment in general terms, 
 altogether absolute for the plaintiff, or for the defendant." ^ 
 
 In conclusion of this effort to give a clear and exact definition 
 of the nature of courts of equity, we will only quote further the 
 language of Judge Tucker : 
 
 " Such, then, being the parity of law and reason which governs 
 both species of courts, wherein (it may be asked) does their essen- 
 tial difference consist? It principally consists in the different 
 modes of administering justice in each ; in the mode of proof, the 
 mode of trial, and the mode of relief. Upon these, and upon two 
 other accidental grounds of jurisdiction, which were formerly 
 driven into those courts by narrow decisions of the courts of law, 
 viz: the true construction of securities for money lent, and the 
 
 ' Much of what has been here quoted from .Judge Story is attributed by him to 
 the following sources: Mitford on Plead, p. 3, 4; 1 Woddes' Lect. VII, p. 203 to 
 206; 3 Black. Ccmm. 438; Dr. Lieber's Encyclopaedia Americana, article Equity. 
 The article from the Americana Encyclopsedia was written by Judge Story, and of 
 it Professor Park, of King's College, London, in his introductory lecture on equity, 
 said: " The editors of the Encyclopsedia Americana have stated the real case, with 
 regard to what we call courts of equity, much more accurately than I can find it 
 stated in any English law books." See Am. Jurist for July, 1833, Vol. X, p. 234. 
 
§ 4 CREATION OF RIGHTS IN EQUITY. 7 
 
 form and effect of a trust or second use ; upon these main pillars 
 hath been gradually erected that structure of jurisprudence which 
 prevails in our courts of equity, and is inwardly bottomed upon 
 the same substantial foundation as the legal system which hath 
 hitherto been delineated in these commentaries, however different 
 they may appear in their outward form from the different tastes of 
 their architects." * 
 
 Oreation of Rights in Equity. — Subrogation. — Equity to a Settlement. 
 
 § 4. We have intimated a doubt whether it may accurately be 
 said that equity creates no rights denied by the law ; whether equity 
 does not in fact, out of the original principle of " ex cequo et bono," 
 create rights which are not only not recognized, but the existence 
 of which is positively denied by the principles which govern the 
 common law. As suggestive of this doubt, we will only instance 
 two examples of equitable doctrines, those of subrogation and the 
 equity for a settlement. If others occur to the reader, it will 
 readily be observed that they partake of the same nature as these, 
 and have been born of the same necessity. For a definition of the 
 doctrine of subrogation we will quote the language of some of the 
 judges among the earlier and the latest decided Virginia causes: 
 
 Judge Carr^ thus defines the doctrine : " It has nothing of form, 
 nothing of technicality about it ; and he who, in administering it, 
 would stick to the letter, ' forgets the end of its creation, and per- 
 verts the spirit which gave it birth.' It is the C7-eature of equity, 
 and real essential justice is its object." 
 
 Judge Parker^ uses nearly the same language : " The doctrine 
 of subrogation, it must be remembered, is the offspring of natural 
 justice, and is not founded in contract. It is the creature of equity, 
 and is so administered as to attain real essential justice." 
 
 In a much later case. Judge Staples'* thus speaks : " The doctrine 
 
 'Tucker's Commentariea, Vol. 2, p. 391. 
 
 2 Enders, &c., v. Brune, 4 Eand. 447. ' Douglass v. Pagg, 8 Leigh, 588. 
 
 * Clevinger et at v. Miller, 27 Grat. 741. 
 
8 JURISDICTION OF COURTS OF EQUITY. § 4 
 
 of subrogation does not stand upon contract, express or implied, 
 but upon principles of natural justice. As it is purely a creature 
 of equity, it is only enforced in those cases where its application is • 
 just, and sanctioned by the obligation of good faith and sound 
 policy." And the same learned judge remarks in the same con- 
 nection : "At cmnmon law, payment utterly extinguishes the debt, 
 and every security given for it." 
 
 Judge Anderson^ says : " This equitable practice of subrogation, 
 which is a creature of equity, is applied to sureties, as we have seen, 
 not upon the ground of contract." 
 
 Thus the argument is, that to one who is compelled to pay the 
 debt of another, equity creates a right of subrogation to the claim 
 of the creditor, and gives to him against the principal debtor, not 
 a mere right of action, for that the common law gives,^ but in cer- 
 tain cases^ the creditor has the right to sue on the very evidence of 
 debt held by him, and is substituted to all the contracts, liens, 
 securities, and obligations which the creditor holds against the 
 principal debtor. Or, as Pothier* pithily puts it, "All those who 
 are bound for a debt for others, or with others, by whom they 
 ought to be discharged, either wholly or in part, have a right, upon 
 paying, to demand a cession of the actions of the creditor against 
 the other debtors." 
 
 So much for the definition of the doctrine of subrogation ; it 
 will be seen that substantially the same thing is said of a wife's 
 equity to a settlement, so far as it bears upon the subject under 
 consideration. 
 
 1 Kendrick et al v. Forney, 22 Grat. 751. 
 
 ^ " Where the surety has paid the money on his principal's debt, or satisfied the 
 debt, the law implies an undertaking on the part of the latter to refund the amount 
 paid ; and it was formerly held that the proper form of action was indebitatus 
 assumpsit for money paid.*' Edwards on Bills and Notes, p. 293-' 4. If the note 
 is negotiable, the endorser is not compelled to sue in assumpsit, but may sue directly 
 on the note as holder. Burton v. Slaughter, 26 Grat. 923. 
 
 'Powell's Ex' or v. White et al, 11 Leigh, 309-324 ; Cromer v. Cromer's Adm'r, 
 29 Grat. 285. 
 
 *Pothier on Obligations, Part 3, Ch. 1, Art. 6, § 2,520. See also Chrisman's 
 Adm' X V. Harman et als, 29 Grat. 494. 
 
§ 4 CEEATION OF RIGHTS IN EQUITY. 9 
 
 " The wife's equity for a settlement attaches on her equitable 
 chattels real, and on such of her equitable choses in action as are 
 capable of being immediately reduced into possession, and it 
 authorizes a restraint of the hmband's nglds until he shall have 
 made an adequate settlement." ' 
 
 " The general theory of this branch of equity jurisprudence 
 may be thus succinctly stated. By marriage the husband clearly 
 acquires an absolute property in all the personal estate of his wife 
 capable of immediate and tangible possession. But if it is such 
 as cannot be reduced into possession except by an action at law, 
 or by a suit in equity, he has only a qualified interest therein, such 
 as will enable him to make it an absolute interest by reducing it 
 to possession. If it is a cljose in action, properly so called, that 
 is a right which may be asserted by an action at law, he will be 
 entitled to it, if he has actually reduced it into possession (for a 
 judgment is not sufficient) in his lifetime. But if it is a right 
 which must be asserted by a suit in equity, as where it is vested 
 in trustees who have the legal property, he has still less interest. 
 He cannot reach it without application to a court of equity, in 
 which he cannot sue without joining her with him ; although per- 
 haps a court of law might permit him to do so, or at least to use 
 her name without her consent. If the aid of a court of equity is 
 asked by him in such a case, it will make him provide for her, 
 unless she consents to give such equitable property to him." ^ 
 
 In Murray i\ Lord Elibank, 1 Lead. Cases in Equity, p. 634, 
 the learned counsel for the defendant, speaking of this doctrine,, 
 say, " It is true, this equity is the creature of tliis court." And in 
 
 'Adam's Equity, 137-'8. Daniel v. Daniel el ah, 2 Richardson's Equity, 115 ; 
 44 Am. Dec. 244, note p. 246 ; Wiles v. Wiles, 3 Md. 1 ; 56 Am. Dec. 733, note, p. 
 736 ; Am. & Eng. Encyclopedia of Law, Vol. IX, p. 845. This principle, which 
 grew out of the gift by the Common Law, to the husband of the rents and profits of 
 the wife's realty, and of an absolute right to reduce to possession her personal estate, 
 is now substantially abolished by the laws of Virginia and of other States vesting 
 in married women all of their propei'ty against any claim of the husband or of his 
 creditors. 
 'Story's Equity Jurisprudence, Vol, II, ? 1405. 
 
10 JURISDICTION OF COURTS OF EQUITY. § 4 
 
 the English and American notes to the same case/ it is declared 
 that the husband becomes jure matiti absolutely entitled to all his 
 wife's chattels personal in possession ; to her choses in action if he 
 reduce them into possession ; and to her chattels real, with full 
 power of alienation, subject to the wife's right of survivorship if 
 he die without aliening them, or before he reduce them to posses^ 
 sion. " But," says the annotator, " the common law was defective, 
 inasmuch as it possessed no means of compelling the husband to 
 perform his marital obligations, and leaves it in his power to con- 
 sume or to alien the wife's choses in action or possession, and her 
 chattels real, without providing out of them a sufficient support for 
 his wife or children. From this hard necessity arose the merciful 
 doctrine of equity which, under certain circumstances, compels a 
 settlement for the use of the wife and children ; merciful, it is 
 true, but nevertheless denying to some extent the rights that at 
 common law belong to the husband." 
 
 Of this doctrine Judge Stanard^ says: " The rights of the wife 
 lying in suit for the recovery of the possession, of which the 
 remedy is of equitable or ecclesiastical jurisdiction, come under a 
 different category. When such rights are sought to be enforced 
 by the husband, or perhaps even without such suit, on a claim in 
 equity on behalf of the wife, that court raises up and enforces an 
 equity in her favor, which sustains a title in her to a reasonable 
 provision out of the property in action ; and that court will vnth- 
 draw from the marital power of the husband a reasonable portion of 
 .the property in action, and dedicate it to the wife and her children. 
 This title to a settlement is tJie creation of the court of equity, and is 
 called the wife's equity." 
 
 So it was held^ that an assignment by the husband of his wife's 
 chose in action before it was reduced to possession, defeated the 
 wife's claim to a settlement; this opinion being based upon the 
 
 ' Leading Cases in Equity, Vol. 1, pp. 639 and 670. 
 ^ Dold's Trustee v. Geiger's Adm'r, 2 Grat. 104. 
 * Dold's Trustee v. Geiger's Adm'r, 2 Grat. 104. 
 
§ 4 CREATION OF EIGHTS IN EQUITY. 11 
 
 idea that the husband had by his marital rights an appreciable 
 interest in his wife's property, of which, in a proper case, and 
 before assignment by the husband, a court of equity will deprive 
 him in favor of his wife and children. 
 
 It is of course true, as distinctly laid down,' that " whenever 
 the husband in right of his wife has obtained possession of and 
 title to her property, his own title jure mariti becomes complete, 
 and the property, to the extent of his title, is subject to his right 
 of disposition, and to the claims of creditors and purchasers, like 
 any other property of his any otherwise acquired. But at law the 
 right of the wife to a settlement, even out of this incomplete title 
 of the husband, is denied, while in equity it is granted ; and this 
 not only when the husband is seeking in equity to recover posses- 
 sion of the wife's property, as has been contended, as a condition 
 to granting the relief prayed by him, and " ex cequo el bono," but 
 this right will be administered to her in a suit brought by her or 
 her trustee for the purpose of asserting it.^ 
 
 These two principles, then, are declared to be the creatures- of 
 equity ; they have no existence at law, and their operations divest 
 and set aside rights recognized and protected by the principles of 
 
 ' Poindexter & Wife v. Jeffries et als, 15 Grat. 369. 
 
 ^ Ibid 373. Story" s Equity Jurisprudence, Vol. II, § 1414 ; 1 Koper on 
 Husband and Wife, 260 ; Elibank v. Mantelieu, 5 Ves. E. 737 ; Newenham v. Pem- 
 berton, 17 Law & Equity, N. S. 99 ; 1 Lead. Cases in Eq. 468. For a learned and 
 able discussion of the effect of an assignment by the husband upon the wife' s claim 
 for a settlement, see the argument of counsel in the case of Brooming v. Headley, 
 2 Bob. R. 371, and the following authorities referred to there : Lord Carteret v. 
 Paschal,. 3 P. Wms. 197 ; 2 Brown's Par. Cas. 10 ; Bates v. Dandy, 2 Atk. 207 ; 
 Earl of Salisbury v. Newton, 1 Eden. 373 ; Wright v. Mosley, 11 Ves. 12 ; Horns- 
 by V. Lee, 2 Madd. C. B. 16 Am. ed. 352 ; Purdew v. Jackson, 1 Buss. 1 ; Cassell 
 V. Carroll, 11 Wheat. 152 ; Johnson v. Johnson, 1 Jack. & Walk. 456 ; Taliaferro, 
 &c. V. Taliaferro, &c. 4 Call. 93 ; WaUace & ux v. Taliaferro & ux, 2 CaU. 447 ; 
 Upshaw V. Upshaw, &c. 2 H. & M. 389 ; 1 Tuck. Comm. 116 ; Schuyler v. Hoyle, 
 5 Johns. Chy. Bep. 207, 210. But the late cases of Dold' s Trustee i). Geiger's 
 Adm'r, and Poindexter & Wife v. Jeffries el ah, settle all the principles of this 
 doctrine as entertained in Virginia. In Stor/s Eq. Jurisprudence, Vol. I, § 64 c, 
 and notes, this principle of the equity to a settlement is declared to rest upon the 
 maxim that he who seeks equity must do it ; but this could scarcely be applied to a 
 suit brought by the wife or her trustee for the purpose of asserting her equity. 
 
12 JURISDICTION OF COUETS OF EQUITY. § 5 
 
 common law. It seems, therefore, too much to say that " equity 
 creates no rights that are denied by the common law." It would 
 be nearer the truth to say that equity follows and adopts all rights 
 recognized by the law, except when they are directly in conflict 
 with settled principles of equity, and also creates others that have 
 no existence there ; but this definition too is open to objection. It 
 is proper, however, to concede that there are principles of equity 
 in direct conflict with those of the law. But it was not of this 
 that the commons of England complained, but only that, while the 
 law followed and was governed by fixed principles, equity had no 
 regular or certain standard, and justice was measured out by her 
 tribunals in degrees as uncertain as the length of the chancellor's 
 foot. Now, although equity may sometimes contradict the law, its 
 principles are not on that account any less fixed or certain than 
 those of the law. 
 
 Interferenee by Courts of Equity with Proceedings at Law. 
 
 § 5. It is a settled principle that equity grants no relief in any 
 case for which the law provides an effectual remedy f but this 
 remedy must be plain, adequate and complete.^ If it be doubtful 
 or obscure ; if it falls short of what the party is entitled to ; or if 
 it fails to reach the whole mischief, or secure the whole right of 
 the party, then equity will assert its jurisdiction. 
 
 This general proposition will be best understood by considering 
 some of the instances in which the aid of courts of equity has been 
 invoked, to restrain, prevent, or set aside the action of the common 
 law courts.' 
 
 ' Morrison v. Speer, 10 Grat. 228 ; Beekley v. Palmer, 11 Grat. 625 ; Coleman's 
 Adm'x V. Anderson, 29 Grat. 425; Shields et al v. MeClung et cds, 6 W. Va. 79. 
 
 ^Watson V. Sutherland, 5 Wallace, 74; Post, ^ 17. Cox's Ex'rs v. Crockett etal, 
 92 Va. R. 50. 
 
 ' Oelrichs v. Spain, 15 Wallace, 228; Goolsby, &c. v. St. John, 25 Grat. 152. 
 Courts of equity decline jurisdiction of cases arising out of torts, to prevent a mere 
 trespass, of questions of damage, pure and simple, and in matters of crime (Am. 
 & Eng. Encyc. of Law, Vol. 6, p. 693), but in matters of criminal conspiracy, 
 boycott, &c., while an action for damages is the usual civil remedy (Am. & Eng. 
 
§ 6 PEINCIPLES UPON WHICH EQUITY WILL INTERFERE. 13 
 
 Principles upon which Courts of EquUy Interfere. 
 
 § 6. In the case of Turpin v. Thomas, 2 H. & M. 139, the 
 court declared that equity could not relieve against a judgment at 
 law merely on the ground that it was erroneous, even though. the 
 plaintiff at law was not entitled to recover, or not; entitled in that 
 form of action, and the judgment was obtained by default. In 
 the case of Alderson v. Biggars et al., 4 H. & M. 471-2, Chancellor 
 Taylor said, that he considered the case of Barret v. Floyd, 3 Call. 
 531, the tendency of which was to impair the distinction between 
 chancery and common law jurisdiction, to have been overruled by 
 the case of Turpin v. Thomas, saying that in giving a definition he 
 preferred to follow the cases of Turpin v. Thomas and Terrell v. 
 Dick, 1 Call. 546. 
 
 The same learned judge further says : " But the true course for 
 a chancellor is never to interfere if the matter can be adjusted at 
 law ; and the best interests of the people requires that this rule 
 should be adliered to ; and more especially in a Kepublic like ours, 
 where, if the science of free government is not better understood 
 in theory than in other countries, it is in practice ; and of this we 
 proudly boast ; and the fathers of the country have recorded in the 
 , sacred declaration of our rights ' that in controversies respecting 
 property, and in suits between man and man, the ancient trial by 
 jury is preferable to any other, and ought to. be held sacred.' " ^ 
 
 Encyc. of Law, Vol. 4, p. 592), yet whenever the acts of the conspirators become 
 unlawful or amount to a nuisance, equity will interfere by injunction. (See the 
 cases cited in Encyclopedia of Pleading and Practice, Vol. IV, p. 728 and notes. ) 
 For a definition and nature of conspiracy, see notes, p. 82 to 94, 51 Am. Dec. Of 
 conspiracies to control wages or workmen, see notes, p. 507 to 512, 28 Am Dec, 
 and of "boycotting" as a criminal conspiracy, see notes, p. 783 to 785, 76 Am. 
 Deo. See In re Debs, 158 U. S. E. 564; but see also statute of Virginia, Act 
 February 26, 1898; Acts 1897-8, p. 548. 
 
 ' This was written in 1809. For an instance in which the court enjoined an exe- 
 cution when it might have been quashed, see Suavely v. Harkrader, 30 Grat. 487. 
 But see now § 3599 Code of West Virginia, Ch. 140, § 17; 2 Bart. Law Practice, 
 p. 845, note 4. 
 
14 JURISDICTION OF COURTS OF EQUITY. § 6 
 
 It cannot be doubted that if the subject over which the inter- 
 ference of a court of equity is invoked comes fully within the 
 province of a court of law, courts of chancery have no sort of 
 jurisdiction over the matter ; but it often happens that, after a 
 trial at common law, when the result has not strictly met the ends 
 of justice, the courts of chancery are applied to, and the question 
 of jurisdiction is sometimes a difficult one. It cannot be contended 
 that in such cases, if the courts of law are still open to motions 
 for new trials, and whether the motion has or has not been made, 
 or has been successful or unsuccessful, that a court of chancery 
 can interfere. It is only when there is some insuperable obstacle 
 to redress in that tribunal that the application will be entertained 
 here, and even then only in a limited class of cases.' 
 
 The settled rule is that courts of equity relieve against judg- 
 ments at law, not because they are wrong, but because of some new 
 matter which the court of law did not or could not pronounce 
 judgment on, or which for some just cause the party could not 
 bring to the consideration of the court,^ and where it appears that 
 a cause has been once fully heard and decided in a court of law 
 having jurisdiction over the subject, equity will not interfere 
 merely because injustice may have been done at law, but will 
 refuse relief upon any ground of which the court of law had 
 cognizance, unless the complainant show a sufficient excuse for 
 having failed to obtain redress there,^ and these rules apply also to 
 suits on judgments of another State.' 
 
 1 Eaxl of Oxford's Case, Leading Cases in Equity, Vol. II, Pt. 2, p. 1328; Am. 
 Notes, Ed. 1877. 
 
 ^ Hendricks, &c. v. Compton's Ex' or, 2 Kob. 192; Sitlington v. Kinney's Adm'r, 
 29 Grat. 91; Garland v. Eives, 4 Eand. 316; Fowler v. Lee, 10 GiU and Johnson, 
 358; 32 Am. Dec. 172; note, p. 177. Equity wUl not enjoin a judgment at law 
 upon any ground which either was or might have been tried at law. Emerson v. 
 Udall, 13 Vt. 477; 37 Am. Dec. 604; note, p. 606; Braden v. Beitzenberger, 18 
 W. Va. 286; Wallace v. Richmond, 26 Grat. 67. But for the provisions of the 
 statute in this respect, in cases of equitable pleas at law, see Post, ? 8 and notes, 
 and ? 10 and notes. 
 
 ' Kincaid v. Cunningham, 2 Mtmf. 1 ; Auditor v. Nicholas, 2 Munf. 31. 
 
 * Leading Cases in Equity, Vol. II, Pt. 2, p. 1398 ; High on Injunctions, ? 57 
 to 61 ; Post, 1 12. 
 
§ 7 WHEN EQUITY WILL SET ASIDE A JUDGMENT AT LAW. 16 
 
 To entitle himself to relief, the party must show that he has 
 been guilty of no laches, but that he has done everything that 
 could reasonably be required of him to render his defence effectual 
 at law. A court of equity will never, whatever be the hardship, 
 relieve a party from the consequences of his own negligence and 
 inexcusable laches. To do so would be to hold out direct en- 
 couragement to such conduct. In such cases courts of equity 
 have always refused relief; but they have always granted it when 
 it is shown that the reason why the defence was not made was 
 founded in fraud, accident, surprise, or some adventitious circum- 
 stances beyond the control of the party. ^ 
 
 What constitutes cases of this character can only be determined 
 
 by an examination of the decided causes in which equity has taken, 
 
 and where it has denied jurisdiction. 
 
 * . 
 
 When JSquity will set aside a Judgment at Law. 
 
 § 7. Relief against judgments at law has been granted in the 
 following instances : Where the defendant was informed by the 
 plaintiff's attorney that his defence was a good one, and therefore 
 
 ^ Brown v. Comity of Buena Vista, 5 Otto. 157 ; Dust v. Conrod et ah, 5 Munf. 
 411 ; Chapman v. Harrison, 4 Band. 338 ; Brown v. Toell's Adm'r, 5 Band. 543 ; 
 CabeU's Ex'ors v. Eobert's Adm'rs, 6 Band. 580 ; Yancy v. Fenwick, 4 H. & M. 
 423 ; Mai-ine Ins. Co. v. Hodgson, 7 Cranch. 332. Holland and "Wife v. Trotter, 
 22 Grat. 141 ; Mason v. Nelson, 11 Leigh, 227 ; Mosby v. Haskins et at, 4 H. & 
 M. 427 ; 2 H. & M. 10 ; Tapp's Adm'r v. Eankin, 9 Leigh, 480 ; Hendricks et als 
 V. Compton's Ex' or, 2 Bob. E. 192; Donally u Ginatt's Adm'r, 5 Leigh, 362 ; 
 Bieme v. Mann et al, 5 Leigh, 364 ; Goolsby, &o. v. St. John, 25 Gratt. 152 ; Lud- 
 ington V. Handley, 7 W. Va. 269 ; Smith v. McLain, 11 W. Va. 654 ; Knapp v. 
 Snyder et al, 15 W. Va. 434 ; Alford v. Moore's Adm'r et als, 15 W. Va. 597 ; 
 Bosenberger v. Bowen, 83 Va. 660 ; Canada v. Barksdale, 84 Va. 742 ; Hamer v. 
 Price, 17 West Va. 523 ; Collins et als v. Jones, 6 Leigh 530, as reported in 29 Am. 
 Dec. 216 and notes, p. 218. These principles do not effect the right to relief in 
 equity where a defendant entitled to file a plea under i 3297 of the Code of Vir- 
 ginia (Code of West Va. Ch. 126, | 56) has not tendered it, or though tendered it 
 has been rejected for not being offered in time. Post, 1 10. Bamett v. Bamett, 
 83 Va. 508. See the principles of relief in equity against a judgment at law dis- 
 cussed, the rules stated and the decided cases collected in Vol. XH Am. & Eng. 
 Encyclopedia of Law, p. 139 to p. 147a. 
 
16 JUEISDICnON OF COUETS OF EQUITY. § 7 
 
 he would take no judgment against him f where he was prevented 
 from making his defence by the fraudulent representations or 
 promises of the plaintiff himself;^ where no process was served on 
 the defendant at law f where the plaintiff directed an order to be 
 entered dismissing the suit upon defendant's promise to secure the 
 debt, and the bail was thereupon discharged ; but upon the de- 
 fendant's failing to comply with the promise and absconding the 
 country, the plaintiff appealed from the order discharging the bail, 
 and on that appeal judgment was rendered against the bail ; under 
 such circumstances the latter was declared to be entitled to relief 
 in equity.'* In the case of West's Ex'or v. Logwood, 6 Munf. 491, 
 the suit was on a bond of the testator, which before the trial the 
 plaintiff had always declined showing to the executor, and at the 
 trial some circumstance occurred which, for the first time, excited 
 suspicion of fraud, atid upon the issue ordered by the chancery 
 court, evidence obtained subsequent to the trial was produced, 
 upon which the bond was pronounced a counterfeit. Chancellor 
 Taylor held, that if the case was a proper one for a new trial, that 
 motion having been made and denied by the law court, the execu- 
 tor's relief should have been by appeal from that order, and not 
 by a bill in chancery. The court of appeals, however, reversed 
 Chancellor Taylor, and sustained the jurisdiction of the court of 
 equity.' 
 
 1 Holland and Wife v. Trotter, 22 Grat. 136. 
 
 2 High on Injunctions, ? 109-110 ; Poindexter v. Waddy, 6 Munf. 418. 
 
 ' Goolsby, &c. V. St. John, 25 Grat. 161 ; Kibbe v. Benson, 17 Wall. 624 ; M. 
 Insurance Co. v. Hodgson, 7 Cranch. 336 ; Moore v. Lipscomb, 82 Va. 546 ; Day 
 V. Martin, 78 Va. 1. 
 
 * Mann v. Drewry, 5 Leigh, 296. 
 
 ° For cases defining and illustrating what does and what does not constitute the 
 surprise, mistake, inadvertence or excusable neglect, for which a court of equity 
 will relieve against a judgment at law, see the notes on pp. 397, 398 of Vol. LVIH 
 Am. Dec. See also Eust et al v. Ware, 6 Grat. 50 as reported on p. 100, 52 Am. Dec. 
 and note, p. 102. Where the judgment was obtained through fraud, contrivance or 
 covin of any description, Dobson v. Pearce, 12 X. Y. 156, 62 Am. Dec. 152, not§ 
 p. 158 ; where defence in the court of law was prevented by unavoidable accident, 
 Jones V. Commercial Bank, 5 How. 43, 35 Am. Dec. 419, note p. 421; where de- 
 
§ 7 WHEN- EQUITY WILL SET ASIDE A JrDGME>T AT LAW. 17 
 
 Equitable relief was granted where eopie? of deeds were refused 
 admission in evidence, the fiiilure to produce the originals having 
 been caused bv the sickness of the party on his waj- tor court ;^ 
 and the same was held, where after a judgment at law against an 
 administrator rendered upon the supposition that there were assets 
 sufficient to pay it, and after the trial this turned out not to be the 
 case.- Against such a judgment now, however, relief ia equitv 
 would not be necessary, for an administrator cannot be held liable, 
 even after judgment, beyond the assets of his intestate. The case 
 of Eoyall's Administrator v. Royall's Administrator, 5 Munf. 82, 
 was when there had been an action of detinue by the administrator 
 of a mother to recover slaves from a person who was the adminis- 
 trator of the son who had been one of the distributees, and judg- 
 ment was rendered for the plaintiif. It here appeared, on a case 
 agreed, that all the debts of the mother were paid ; that the son, 
 if alive, would be entitled to the slaves : but he being dead, the 
 complainant, as his administrator, should have the same to pay the 
 debts of the son, and then distribute the residue among the next 
 of kin ; but this defence could not have been set up in the action 
 of detinue. On this case the court of equity enjoined the judg- 
 ment, being of opinion that as the debts of the mother were all 
 paid, the administrator of the son was entitled to the property-, 
 and he ought not to be compelled to part with the possession, and 
 then be put to the circuity of another action to recover it back. 
 
 The statute* avoids every contract, conveyance or assuranc«, of 
 which the consideration, or any part thereof, is money, property 
 or other thing won or bet at any game, sport, pastime or wager, or 
 monev lent or advanced at the time of. any ga mi ng, betting or 
 
 femdant was ignorant of his defence, Strong r. Sullivan el at, 2 Geo. 275, 46 Am. 
 Dec :>S9 ; Pearce r. Chastain, 3 Geo. 226, 46 Am. Dec. 423: where for after-dis- 
 covered evidoice, Biown r. Spever?, 20 Grat. 296: where there was no appearance 
 in service of pioces. Crafts i. Dexter, S Ala. 767. 42 Am. Dec. 666, note, p. 669. 
 
 ^Hord r. Dishman, 5 CaU. 279: Mayo r. Bentley, 4 CalL o2S. 
 
 ' Boyall's Adm'r r. Johnson et al, 1 Eand. 421 : Miller's Ex or r. Rice ei als, 1 
 Band. 4.3S. 
 
 = Code, ? 2836; Code W. Va. Ch. 97. ? 1. 
 
 
18 JURISDICTIOK OF COUBTS OF EQUITY. §7 
 
 wagering, to be used in being so bet or wagered, when the person 
 lendiag or advancing it knows that it is to be so used. When 
 judgments^have been rendered on contracts of this character, it 
 seems that they, to some extent, constitute exceptions to the general 
 rules of equitable interference, and there is some conflict as to what 
 is the exact rule between the authorities themselves. 
 
 In the case of Skipwith v. Strother et al, 3 Eand. 214, Judge 
 Carr said: " Upon the ground of jurisdiction, I consider Woodson 
 et at V. Barrett & Co., 2 H. & M. 80, an express authority that 
 equity will enjoin a gaming judgment though the party has failed 
 to defend himself at law, and gives no good reason for such failure. 
 There the plaintiff in equity produced abundant evidence of the 
 gaming, and no doubt might have produced it at law." * * * 
 " The decision is placed on the ground of the original vice of the 
 transaction. It is said that, the bond being absolutely void in 
 its creation, could be made valid by no subsequent transaction 
 immediately growing out of it ; " and so it was held in the case of 
 Skipwith V. Strother et al, that a court of equity has jurisdiction 
 to relieve against a judgment founded on a gaming debt,' although 
 the party failed to defend himself at law,^ and gave no good rea- 
 son for such failure. 
 
 In the case of Woodson et al v. Barrett & Co., it was contended 
 by the counsel who prevailed in that case, that a court of equity 
 had jurisdiction, because the act against gamiftg then in force 
 avoided not only all contracts founded upon such a consideration, 
 but also all judgments rendered thereon ; and this an examination 
 of the act^ shows to be true. 
 
 ' Even though the gamiiig contract has been assigned to an innocent holder for 
 value. Woodson v. Barrett & Co., 2 H. & M. 80; Skipwith v. Strother, 3 Kand. 
 214. "> See Gough v. Pratt, 9 Md. 526. 
 
 ' Eevised Code, 1814, p. 243; Act passed December 8, 1792. In Bell v. Parker, 
 3 Dana, 51 ; 28 Am. Dec. 55, it was held that a court of equity would not enjoin 
 a judgment at law rendered on a promissory note given for the price of a horse 
 originally lost at gaming and actually delivered to the winner, but afterwards sold 
 to the loser upon his executing to the winYier the note for the price which he s 
 to pay on the repurchase. 
 
§ 7 WHEN EQUITY WILL SET ASIDE A JUDGMENT AT LAW. 19 
 
 Such also seems to have been the law at the time of the decision 
 in Skipwith v. Strother et al ; but the present act does not avoid a 
 judgment, but confines the operations of the statute to contracts, 
 conveyances and assurances. 
 
 The case of White v. Washington's Ex'or, 5 Grat. 645,* arose 
 in 1843, and was a bill filed to enjoin a judgment rendered before 
 that date. In this case there was no doubt of the gaming con- 
 sideration, and the surprise seems to have been conceded ; but the 
 defendant had an opportunity to move for a new trial at law, and 
 having failed to do so, but asking for relief in equity, the question 
 was whether it could be granted then, or whether under such cir- 
 cumstances the verdict and judgment were not conclusive and 
 unimpeachable. 
 
 The learned judge who gave the opinion of the court in this 
 case fully recognizes the general rule that, after a full and fair 
 trial of the merits, a case cannot be re-examined, or the matter 
 again drawn in question, unless in an appellate forum, and this 
 whether a court of equity would or would not previously have 
 had concurrent jurisdiction over the subject. Another rule, says 
 the same learned judge, repels from a court of equity a com- 
 plainant who has been subjected to the recovery of a demand in 
 a court of law, against which he had a legal defence that he 
 comes to assert, but which he had an opportunity of making, 
 and declined or neglected to make in the legal forum f and it 
 was further admitted that when a party has an opportunity to 
 move for a new trial, and fails to do so, or having made the 
 motion is unsuccessful, a court of equity will not grant relief; 
 otherwise if he had no such opportunity.' But "a gaming se- 
 curity or consideration, however, forms an exception to the 
 general rule, requiring a defendant at law to avail himself there 
 of a good legal defence to the action. * * * j^ must be 
 
 ^ Cited approvingly in Goolsby, &c. v. St. John, 25 Grat. 153. 
 ' Tapp's Adm'r v. Eankin, 9 Leigh, 47.8 ; Black v. Smith et als, 13 W. Va. 709. 
 » Knifong v. Hendricks, 2 Grat. 212 ; Henderson v. Mitchell, 1 Baily Eq. 21 Am. 
 Dec 536, 
 
20 JURISDICTION OF COURTS OF EQUITY. § 7 
 
 admitted, however, that in an action founded upon a gaming 
 promise or security, if the defendant elects to make his defence 
 at law, and upon a full and fair trial of the question in that 
 forum, a verdict is rendered against him, he cannot be permitted 
 to renew the controversy upon adverse testimony in a court of 
 equity ; for if this were allowed, it would, in efiect, be an appeal 
 from the verdict of a jury. And yet, notwithstanding such elec- 
 tion, if the defendant has been surprised at law by reason of some 
 fraud, misfortune, or accident, which has prevented him from 
 having a full and fair trial before the jury, he may still resort for 
 redress to a court of equity. Nor will he be precluded from doing 
 so by its appearing that he had an adequate opportunity of obtain- 
 ing a new trial by application to the court of law. The case of a 
 gaming promise or security is an exception to the general rule on 
 the subject, &c." ' 
 
 After the decision of this case the statute was changed to what 
 it is now, and the provision for avoiding a judgment, when the 
 contract upon which it was rendered was for a gaming considera- 
 tion, was omitted. In reporting the section, which was substan- 
 tially adopted by the Legislature, the revisors^ say : " This short 
 section, made so concise only by leaving out superfluous words, is 
 believed to be as comprehensive and eifectual as the first and second 
 sections of chapter 147, 1 E,. C, p. 561. 
 
 We were disposed to think, nevertheless, that the omission 
 from the statute of the word "judgments'" was not the lop- 
 ping off of a mere superfluity, but that the new section afi^ected 
 such a change in the law as to make judgments rendered in 
 cases where the defence was or might have been that the con- 
 
 ' The authorities relied on in this case are : 1 Story's Eq. § 302 ; Woodroffe v. 
 Famham, 2 Vern. E. 291 ; Bawden v. ShadweU, Amb. B. 269 ; Fleetwood v. Jan- 
 sen, 2 Atk. B. 467 ; Woodson v. Barret & Co., 2 H. & M. 80 ; Skipwith v. Strother, 
 3 Band. 214 ; Newman v. Franes, 2 Anst. B. 519. 
 
 ^ Beport of Eevisors, p. 717. 
 
 ' Mr. Minor thinks the words still retained in the statute sufficient to embrace 
 judgments. Minor's Inst., Vol. IV, Pt. 2, p. 1159, 
 
§ 7 WHEN EQUITY WILL SET ASIDE A JUDGMENT AT LAW. 21 
 
 tract was upon a gaming consideration, just like all other judg- 
 ments, and not exceptions to the general rule which we have 
 discussed. But a different view is apparently taken by the court 
 of appeals ; for in an opinion delivered by Judge Moncure in the 
 case of Goolsby, &c. v. St. John, 25 Grat. 153, "White v. Washing- 
 ton's Ex'or is cited as accurately stating the law. It is proper to 
 add, however, that the point was not necessary to be decided in 
 that case, and consequently less weight is attached than usual to 
 that learned judge's remarks.' 
 
 In the case of Brown v. Toell's Adm'r, 5 Rand. 544, Judge 
 Cabell says that, by a bill putting the matter directly in issue it is 
 competent to a party to an usurious contract to go into equity for 
 relief as to the interest, even after a judgment at law, and without 
 assigning any reason for having failed to defend himself at law. 
 But where there had been a defence upon the plea of usury, and 
 that defence had failed, and the defendant filed his bill for relief 
 in equity, it was held^ that a plaintiff who cqmes into a court of 
 equity asking the new trial of an issue at law on the ground of 
 having discovered evidence after the trial, must show that he has 
 not been guilty of laches in making the discovery, that the evidence 
 is material to the issue, and that it is not merely cumulative, or in 
 addition to other evidence of like import heard at the trial. 
 
 Cases of usury, then, seem to stand upon the same footing as 
 gaming contracts, and the fact that no defence was made at law, 
 though the defendant had full opportunity to do so,^ does not 
 
 ^ It is generally considered that gaming transactions are no exception to the 
 usual rule. High on Injunctions, | 135. But see to the contrary Minora' Inst., 
 Vol. IV, Pt. 2, p. 1159. 
 
 ^Hamsbarger's Adm'r v. Kinney, 13 Grat. 516; Terry, Assignee, v. Dickinson 
 et als, 75 Va. 487. 
 
 'Belief rendered against a judgment at law on ground of usury. Eankin's 
 Ex'or V. Bankin's Adm'r, 1 Grat. 157; Martin v. Hall et als, 9 Grat. 10. In 
 Terry, Assignee, v. Dickinson et als, 75 Va. 478, Judge Staples intimates a doubt 
 of the right of a court of equity to set aside such a judgment, but that question 
 was not necessary to be decided and was not decided in that case. The rule stated 
 in the text is so given because it seems to be supported by the decided cases in 
 
22 JURISDICTION OF COURTS OF EQUITY. § 7 
 
 appear to prevent a successful application for relief in chancery 
 against a judgment.' 
 
 Relief in equity against a judgment at law was also given where 
 a party permitted judgment to go by default on a bond for two 
 hundred dollars, believing it to be a bond for one hundred and 
 sixty-three dollars. The condition of course was that he should 
 pay the amount of the debt which was actually due.'' 
 
 Where the judgment was on a forthcoming bond, it was enjoined 
 at the suit of the surety, on the ground that he had an action 
 pending against the plaintiff in the judgment for a larger amount, 
 and that the plaintiff was insolvent.^ Upon this subject, however, 
 in the case of Linke & Klepper v. Fleming, 25 Grat. 707, Judge 
 Staples says: "A very interesting question has been raised and 
 discussed by the learned counsel in this case. It is whether the 
 insolvency of a judgment creditor is a sufficient ground for a court 
 of equity to decree a set-off against him, upon which the debtor 
 might have successfully relied by way of defence in the action at 
 law, but which he failed to do without any circumstances of excuse 
 for such failure. This question has never been settled by this 
 court, nor can it be considered as settled by the decisions of foreign 
 courts." The generally received opinion is, that where the party 
 had his opportunity to plead the set-off at law, and gives no excuse 
 
 Virginia, but it is against the practice generally prevailing and against fairness 
 and the effect generally given to judgments at law. The better rule seems to be 
 that jurisdiction in equity exists without any reason given by the complainant for 
 not defending at law ; that he has his election, but that he cannot avail himself of 
 both the legal and equitable remedies. vSee cases collected in the notes to pp. 1035, 
 1036, 27 Am. & Eng. Eneyc. of Law. 
 
 1 That this is not the usual rule elsewhere, see High on Injunctions, I 132, 133; 
 Footman v. Stetson, 32 Maine, 17; 52 Am. Dec, note, 636 to 639. For the statu- 
 tory provisions for proceedings in equity to avoid usurious contracts see J? 2822, 
 2823. (§ 2824 repealed by Act of January 24, 1894. Acts 1893-4, p. 76. ) Code 
 of W. Va., Ch. 96, § 7; Martm v. Hall et als, 9 Grat. 8; Wise v. Lamb, 9 Grat. 
 306; Brockenbrough's Ex'or ?). Spindle's Adm'r, 17 Grat. 21; Belton t>. Apperson 
 et al, 26 Grat. 207; Turner v. Turner, 80 Va. 379; Edmunds' Ex' or v. Bruce, 88 
 Va. 1007; Davis v. Demming, 12 W. Va. 246; Post, § 168. 
 
 * Mason v. Nelson, 11 Leigh, 227. 
 
 " McClellan v. Kinnaird, 6 Grat. 352; Hupp v. Hupp, 6 Grat. 310. 
 
§ 7 WHEN EQUITY WILL SET ASIDE A JUDGMENT AT LAW. 23 
 
 for not having done so, the mere fact of insolvency will not entitle 
 Mm to relief in equity against the judgment ; but as a party is in 
 no sense bound to plead a set-off to a demand, but may in all 
 cases rely upon his separate action,^ we cannot see the reason for a 
 rule that would drive him to his separate action at law when in 
 the meantime his insolvent creditor might by execution recover all 
 that he owed him, and leave him as compensation only a fruitless 
 and barren judgment. We cannot doubt that, if the insolvency 
 has occurred since the judgment, or if then in existence was 
 unknown to the defendant who held the off-sets, equity will relieve 
 against the judgment ; and if it be true that insolvency alone is 
 an independent ground for equitable intervention, we think that 
 in every case in which it is shown that the judgment creditor is 
 insolvent, off-sets held by the defendant will, upon a bill filed for 
 that purpose, be set up against the judgment.^ 
 
 Where the jury made a mistake and miscalculation, and im- 
 portant testimony was discovered after the trial, as these things, 
 if known in time, would have entitled the party to a new trial, 
 equity will relieve against the judgment, and award the remedy 
 which it is too late to apply for at law.' 
 
 1 Hudson V. Kline, 9 Grat. 379 ; Morgan v. Carson, 7 Leigh, 238. 
 
 ^ On this subject see Waterman on Set-off, p. 441, and the authorities there cited. 
 Gay V. Gay, 10 Paige, 369 ; Lindsay v. Jackson, 2 Paige, 581 ; Pond v. Smith, 4 
 Conn. K. 297 ; Bobbins v. HoUey, 1 Monr. 191 ; Simson v. Hart, 14 Johns. 63 ; 
 Greene v. Darling, 5 Mason, 201 ; Howe v. Sheppard, 2 Sumner, 133 ; Tuscumbia, 
 C. & D. E. K. Co. V. Rhodes, 8 Ala. E. 206 ; 2 Story's Eq., J 1436, note 1 ; Post, 
 I 8 ; Ford's Adm'r v. Thornton, 3 Leigh, 695 ; Hudson v. Kline, 9 Grat. 381 ; 
 High on Injunctions, ? 141, 142 ; Gilliat v. Lynch, 2 Leigh, 493. But see Earl 
 of Oxford's Case, Leading Cases in Equity, Vol. II, Pt. 2, p. 1346, Ed. 1877. 
 See also Jeffries v. Evans et al. 6 B. Monroe, 119, 43 Am. Dec. 158, notes, p. 159. 
 The rule stated in the text seems to be sustained by the later cases. See Am. & Eng. 
 Encyc. of Law, Vol. XXII, p. 451, and cases cited; Jarrett v. Goodman, 39 W. Va. 
 E. 602 (20 S. E. E. 575). 
 
 ' Eust et al v. Ware, 6 Grat. 50 ; Harrison v. Nettleship, 8 Cond. Eng. Chy. E. 
 65 ; Gainsborough v. Gifford, 2 P. Wms. 425 ; Barrett. Floyd, 3 CaU. 460 ; Pick- 
 ett «. Morris, 2 Wash. 255 ; Macon v. Nelson, 11 Leigh, 227. The right of set- 
 off in equity was denied to a note not yet due, in a suit brought by an assignee who 
 knew of the obligor's insolvency at the time of the assignment. Spaulding v. 
 
24 JCEISDICTION OF COURTS OF EQUITY. § 8 
 
 When Equity will not set aside a Judgment at Law. 
 
 § 8. In the preceding section reference has been made to the 
 subject of relief in equity against a judgment, to a party claiming 
 oil-sets on the ground of insolvency of the judgment creditor, and 
 the opinion is there expressed that equity will relieve against such 
 a judgment. Where, however, insolvency did not exist, and the 
 claims described as off-sets were of such a character that they 
 would not have been a good set-off at law, in spite of the fact that 
 the defendant claimed to have been prevented by unavoidable acci- 
 dent from setting them up, or attempting to set them up in the 
 action at law, relief was denied him in equity. In such cases the 
 party will be left to his separate action at law, and even if the 
 claims are of such a nature as only to be recoverable in equity, the 
 judgment cannot on that account be enjoined, or the set-off allowed 
 against it.' 
 
 It is a well settled general rule,^ that if off-sets are not allowed 
 in a court of law, they cannot be allowed in equity, and it is only 
 special circumstances that will authorize the interference of a 
 court of chancery.' 
 
 Hence it has been held that neither a claim for unliquidated 
 damages,* nor of a joint against a separate debt,^ nor in favor 
 
 Backus, 122 Mass. 553 ; 23 Am. R. 391. Where relief in the nature of a new 
 trial is sought in equity against a judgment at law, the judgment stands as security 
 for what the plaintiff may justly be entitled to. Bank v. Hupp, 10 Grat. 33. 
 
 1 Hudson V. Kline, 9 Grat. 381 ; Gilliat v. Lynch, 2 Leigh, 493 ; Story's Eq. 
 Jur., I 1434, 1437. 
 
 ' Harvey v. Wood, 5 Madd. Ch. Eep. Am. ed. p. 279 ; Mead v. Merritt, &c. 2 
 Paige, 402 ; Gilliat r. Lynch, 2 Leigh, 504 ; 3 Mason, 138 ; Hupp v. Hupp, 6 Grat. 
 318. See also a full discussion of this subject in the Earl of Oxford's Case, L. Cas. 
 in Eq., Vol. n, Part 2, p. 1338, ed. 1877, American notes. 
 
 ^ Gray v. Eollo, 18 Wallace, 632 ; Story's Equity Jurisprudence, § 1437 ; George 
 V. Strange's Ex' or, 10 Grat. 499 ; High on Injunction, | 136 to 140. 
 
 * Webster v. Couch, 6 Band. 519 ; Duncan v. Lyon, 3 John's Ch. B. 351 ; Cab- 
 ell's Ex'ors V. Roberts' Adm'rs, 6 Rand. 580. The opposing case of Dunbar v. 
 Buck and others, 6 Munf. 34, is regarded as overruled. 
 
 » Gilliat D. Lynch, 2 Leigh 504; Dale, &c. v. Cooke, 4 John's Chy. R. 11 ; 
 
§ 8 WHEN EQUITY WILL NOT SET ASIDE A JUDGMENT AT LAW. 25 
 
 of a debtor against a judgment obtained by executors to let in 
 disputed claims against the testator, bought up since the judgment 
 was rendered/ would entitle a defendant to relief against a judg- 
 ment rendered at law. 
 
 The same has been held to be true where a purchaser^ or a dis- 
 tributee^ sought to set off against a bond taken by the executors 
 at a sale of decedent's estate, debts due by or to a distributive 
 interest in that estate. 
 
 In the case of Hixpp v. Hupp, 6 Grat. 310, H. & N. were part- 
 ners. H. sold out to M., and the new firm undertook to pay the 
 debts of the old. H. became indebted to the new firm, and exe- 
 cuted his bond with two sureties, and this bond was assigned for 
 value to A. The new firm afterwards failed (the individual mem- 
 bers being insolvent), leaving debts of the old firm unpaid to a 
 larger amount than the bond of H., and H. paid the debts. It 
 was held here that H. was entitled in equity to set off against his 
 bond in the hands of the assignee the debts of the old concern of 
 H. & N., which M. & N. were bound to pay, and wliich H. had paid. 
 
 This case appears to have been decided upon the following 
 principle, which was stated by the counsel for the prevailing party : 
 
 Mollan V. Griffith, &c., 3 Page, 402. But see the statute, Code, § 3298. (Code 
 West Va., Ch. 126, § 4) : "Although the claim of the plaintiffbe jointly against 
 several persons, and the set-oflf is of a debt not to all, but only to a part of them, 
 this section shall extend to such set-off", if it appear that the persons against whom 
 such claim is, stand in the relation of principal and surety, and the person entitled 
 to the set-off is the principal." See also ? 3300. (Ch. 126, I 6 Code West Va. ) 
 The words " If any such plea be rejected by the court as bad or adjudged insuf- 
 ficient on demurrer," as they existed in § 6, Ch. 168 Code of 1873, are now omitted 
 from both the Virginia and West Virginia statutes, — the law now providing that 
 if a plea under the statute be rejected because not filed in time, the defendant shall 
 not be precluded from relief in equity, but that if issue in fact is joined on the 
 plea, and such issue be found against the defendant, he shall be barred of relief in 
 equity upon matters alleged in the plea, unless upon such grounds as would entitle 
 a party to relief against a judgment in other cases. See Post, ^ 10 and notes. 
 
 ' Dangerfield v. Bootes, 1 Munf. 529. 
 
 'White, &c., V. Bannister's Ex' ors, 1 Wash. 166. 
 
 'Pulliam V. Winston et al, 5 Leigh, 324 ; Machir's Ex' ors d. Machir's Devisees, 
 6 Munf. 265. 
 
26 JURISDICTION or COURTS OF EQUITY. § 8 
 
 " That where two persons are sued, and one of them is princi- 
 pal and the other surety, and the principal offers to set off a debt 
 due to him from the plaintiff, he cannot do it at law, because the 
 one is a joint and the other is a several debt, the law court not 
 enquiring which is principal and which is surety. But in a court 
 of equity, which does enquire who is principal and who is surety, 
 the set-off is allowed, because a court of equity regards the princi- 
 pal as the debtor ; for if the surety paid any part of the debt, he 
 would recover it back from the principal, so that at last the princi- 
 pal must pay the whoh debt." ' 
 
 We have thus considered the instances in which courts of equity 
 will and when they will not relieve against judgments at law in 
 order to let in an off-set. The other circumstances under which 
 it has been decided that courts of equity will decline to interfere 
 are as follows: 
 
 Where the principal witness was absent from the trial at law, it 
 was held that it mattered not whether he could or could not have 
 gotten there ; for the relief of the aggrieved party should have 
 been by a motion for a continuance, and if that had been unjustly 
 denied him he could have appealed on the law side.^ 
 
 Where a defrauded party failed to make that defence at law.^ 
 Where the reason assigned for having failed to make his defence 
 at law proved not to be true.* 
 
 When the judgment was on a bond given by a purchaser at a 
 judicial sale, and the claim for relief was because of a defect in 
 the title of the land f for it was held that such relief could only 
 
 'Hupp V. Hupp, 6 Grat. 319; 2 Story's Eq., § 1437; Ex parte Hanson, 12 Ves. 
 E. 346; 18 Ves. E. 252. The right to relief in equity against a judgment at law 
 is to be considered also in connection with the provisions of the statute, Code, 
 I 3299; Code W. Va., Ch. 126, I 5; Post, i 10. See also AnU, p. 25 and note. 
 See Jarret v. Goodman, 39 W. Va. 602. 
 
 ^ CoUins et al v. Jones, 6 Leigh, 5.30; Doubleday v. Makepeace, 4 Blackford, 9; 
 28 Am. Dec. 33; note, p. 35; Gifford v. Morrison, 37 Ohio, 502; 41 Am. E. 537. 
 
 ^Hadenti. Garden, 7 Leigh, 157. 
 
 * Turner v. Davis et al, 7 Leigh, 227; Morgan v. Carson, 7 Leigh, 238. 
 
 '' Threlkelds v. Campbell, 2 Grat. 198. 
 
§ 8 WHEN EQUITY WILL NOT SET ASIDE A JUDGMENT AT LAW. 27 
 
 be obtained by resisting the confirmation of the sale by the court, 
 upon the return of the commissioner's report.' 
 
 It was held^ to be no cause for equitable relief, where a defendant 
 claimed that he had off-sets which he had intended to plead, but 
 that owing to sickness in his family he could not attend the court 
 or prepare for trial, and that his counsel, to whom he communi- 
 cated his defence, was absent also ; it appearing, however, that 
 though one of defendant's counsel was present, no application for 
 a continuance was made, nor was an ajBfidavit filed upon which 
 such an application could have been based. 
 
 Where a party was sued in the name of a firm of which it was 
 claimed that he was a member, he employed counsel to defend the 
 suit on the ground that he was not a member of that firm ; but 
 the counsel, in looking over the docket did not recognize his 
 client's name in that of the firm, and entered no defence. After 
 employing counsel, the party w^ho lived in the same county paid 
 no further attention to the cause, and there being no plea, judg- 
 ment was rendered against him. Under these circumstances, it 
 was held that equity could grant no relief.^ 
 
 Equitable relief was denied where the judgment was in favor 
 of a surety who claimed to have paid a debt, but after the judg- 
 ment it came to the knowledge of the defendant that another surety, 
 and not the plaintiff, had paid it, the bill not averring that the 
 defendant used any diligence, or made any efforts or enquiries 
 before the trial at law, to obtain information on the subject ;' and 
 the same was held where the excuse for not defending at law was 
 
 ^ This rule has, however, been held not to apply to the equity of a purchaser 
 arising from after discovered mistake, fraud, or other like matter; and where there 
 was a mutual mistake as to the quantity of land, the purchaser was not precluded 
 by the confirmation of the sale from obtaining relief. Watson v. Hoy et als, 28 Grat. 
 698. For the principles upon which relief is afforded in equity by abatement of 
 the purchase money because of a defect in the quantity of land sold, see Sergeant v. 
 Linkous, 83 Va. K. 664. 
 
 ' Griffith V. Thompson, 4 Grat. 147. 
 
 ' Wallace v. Richmond, Assignee, 26 Grat. 67. See also the principles stated in 
 Hill et als v. Bowyer et ah, 18 Grat. 383. 
 
 * Slack V. Wood, 9 Grat. 40 ; Allen, Walton & Co. v. Hamilton, 9 Grat. 255. 
 
28 JURISDICTION OF COURTS OF EQUITY. § 9 
 
 that defendant was ignorant of the nature of the proceedings against 
 him, and misapprehended the steps that it was necessary for him to 
 take.^ Relief was also denied where it was claimed that the debt 
 upon which the judgment was rendered was scaled as of its date 
 instead of as of the day of payment f and where a corporation 
 allowed a judgment to be rendered against it as garnishee when 
 the debt had been previously assigned to another, of which assign- 
 ment the officers of the corporation had notice.^ 
 
 Relief to one Party and not to Another. 
 
 § 9. A new trial or other relief will frequently be extended 
 to defendants at law who have been surprised by the intro- 
 
 ' Meem v. Eueker, 10 Grat. 506 ; Kisher v. Koush, 12 Mo. 95 ; 22 Am. Dec. 442. 
 
 ^ Penn et al v. Eeynolds, 23 Grat. 518. 
 
 ' Richmond Enquirer Co. v. Eobinson et ah, 24 Grat. 548. The same is true if 
 the judgment be against an individual. Hazeltine & Walton v. Brickey et ah, 16 
 Grat. 116. A party seeking relief must have been guilty of no laches and must 
 have done everything required of him. Canada t). Barksdale, 84 Va. 742 ; Day v. 
 Martin, 78 Va. 1 ; Wallace v. Eichmond, Assignee, 26 Grat. 67 ; Yuille's Adm'r 
 V. Wimbish' s Adm' r, 77 Va. 308. Mistake as to the legal effect is not such surprise 
 as warrants a new trial. Sandford Mfg. Co. v. Wiggin, 14 N. H. 441, 40 Am. Dec. 
 198. The American, and some English, cases upon the subject of equitable relief 
 from judgments at law are fully discussed in Vol. II., Part 2, Leading Cases in 
 Equity, ed. 1877, from p. 1328, and the cases cited may be classified under the fol- 
 lowing general heads: General Principles. — Holmes t). Stateler, 57 111. 209; McClure 
 V. MUler, 1 Bailey Eq. 107; Jones v. Selby, 5 Harris & Johnson, 372; Kitten v. 
 Eobbins, 4 Allen, 369; White t). Crew, 16 Georgia, 416; Pollock ?;. Gilbert, lb. 398; 
 The County of Armstrong v. Brinton, 11 Wright, 367, 374; Lamb v. KeUy, 1 Chand- 
 ler, 224; Eoss v. Harper, 99 Mass. 107; Hendrickson v. Hinckley, 5 McLean, 211; 
 17 Howard, 443; Matson v. Field, 10 Missouri, 100; Hening v. Winans, 1 Smedes 
 & Marshall Ch. 466; Smith v. Lowry, 1 Johns. Chy. 320; Bishop v. Dean, 3 Dana. 
 15; Collins u. Butler, 14 California, 223; Foster v. Wood, 6 Johns. Chy. 89; M. Ins. 
 Co. of Alex. V. Hodgson, 7 Cranch, 332; Truly v. Wanzer, 5 Howard, 141; Emerson 
 V. Udall, 13 Vt. 447; The Ocean Ins. Co. v. Fields, 2 Story, 59. Judgments not to be 
 Enjoined on Legal Grounds. — Duckworth ti. Duckworth, 35 Ala. 70; Becker li.Elkens, 
 1 Johnson Chy. 466 ; The Marine Ins. Co. v. Hodgson, 7 Cranch, 332 ; Wendevart 
 V. Allen, 13 Md. 196 ; Katz v. Moon, Id. 566 ; The Methodist Church v. The Mayor 
 of Baltimore, 6 Gill, 391 ; Hendrickson v. Van Winkle, 27 Illinois ; Vennum v. 
 Davis, 35 Id. 568 ; Holmes v. Stateler, 57 Id. 209 ; Lyday v. Douple, 17 Md. 188 ; 
 Brandon v. Green, 7 Humphrey, 130 ; Johnson v. Lyon, 14 Iowa, 431 ; Hendrick- 
 son V. Hinckley, 17 Howard, 445 ; Creath v. Sims, 5 How. 192 ; Walker v. Bob- 
 bins, 14 How. 584 ; Sprigg v. The Bank of Mount Pleasant, 14 Pet. 201 ; Barker 
 
§ 9 RELIEF TO ONE PARTY AND NOT TO ANOTHER. 29 
 
 duction or rejection of particular evidence, when it would be 
 refused to plaintiffs equally surprised, and the distinction lies 
 in this : After the trial of a cause once commenced, the de- 
 
 V. Elkins, 1 Jolm. Ck E. 465 ; Greene v. Darling, 5 Mason, 201 ; Forsythe d. 
 McWreight, 10 Richardson's Eq. 308 ; Wilsey v. Maynard, 21 Iowa, 107 ; Day v. 
 Cummings, 19 Vermont, 496 ; McVickar v. Walcott, 4 Johnson, 510 ; Hempstead 
 V. "Watkins, 1 English, 317 ; Allen v. Hopson, 1 Freeman, 276 ; Marine Ins. Co. 
 V. Hodgson, 7 Cranch, 332 ; Peace v. Nailing, 1 Dev. Eq. 239 ; Champion v. Mil- 
 ler, 2 Jones, Eq. 194 ; White v. Cashel, 1 Swan, 55 ; Vaughn v. Johnson, 1 Stock- 
 ton, 153 ; Buckmaster v. Grundy, 3 Gilman, 626 ; The State Bank v. Stanton, 2 Id. 
 352 ; Paynter v. Evans, 7 B. Monroe, 420 ; Shortridge v. Bartlett, Id. 420 ; Dilly 
 V. Barnard, 8 GUI & Johnson, 170 ; Prather v. Prather's Adm'r, 11 Id. 110 ; Bently 
 V. Dillard, 1 English, 79 ; Andrews v. Fenter, 1 Arkansas, 186 ; Hartson v. Daven- 
 port, 2 Barb. Ch. 77 ; Vilas v. Jones; 1 Comstock, 274 ; Perrine v. Striker, 7 Paige, 
 598 ; PoweU v. Watson, 6 Iredell Eq. 94 ; Hood v. The N. E. E. Co. , 23 Conn. 609 ; 
 The Methodist Church v. Mayor, 6 Gill, 391 ; Clapp v. Ely, 2 Stockton, 178 ; Price 
 V. Johnson, 15 Missouri, 435 ; White v. Cahal, 2 Swan, 550 ; EusseU v. Staton, 38 
 Georgia, 195 ; Donahue v. Prentiss, 22 Wisconsin, 311 ; Simpson v. Hart, 1 Johns. 
 Ch. 91 ; Le Guen v. Gouvemeur and Kemble, 1 Johns. Cases, 436 ; Yarborough v. 
 Thompson, 3 Smedes & Marshall, 291 ; Houston)). Wolcott & Co., 7 Clarke (Iowa), 
 173 ; The Union Bank v. Kerr & Glenn, 2 Md. Chy. Decisions, 460 ; Cornish v. 
 Tanner, 2 Young Jervis, 333 ; Morau v. Woodward, 8 B. Monroe, 537 ; Miller v. 
 Gaskins, 1 Smedes & Marshall, 224 ; Warner v. Conant, 24 Vermont, 351 ; Barton 
 V. Waey, 26 Id. 430 : Fletcher v. Warren, 18 Id. 451 ; Graham v. Eoberts, 1 Head, 
 56 ; Powell t;. Stewart, 17 Alabama, 719 ; Jamisons. May, 13 Arkansas, 600 ; Clark 
 V. Taylor, 22 Georgia, 559. Relief Granted where the Defence is Equitable. — Hibbard 
 V. Eastman, 47 N. H. 507 ; Frith v. Eoe, 23 Georgia, 139 ; Fanning v. Dunham, 
 5 Johns. Chy. 122 ; Edwards u Varick, 1 Hofl&nan Ch. 382 ; Skinner v. White, 17 
 Johnson, 357 ; Truly v. Wanzer, 5 Howard, 141 ; Ferriday v. Selcer, 1 Freeman, 
 258 ; Miller v. Gaskins, 1 Smedes & Marshall Ch. 524 ; Greenlee v. Gaines, 13 
 Alabama, 198 ; French v. Gamer, 7 Porter, 549 ; Smith v. Walker, 8 Smedes & 
 Marshall, 131 ; Wilson v. Leigh, 4 Iredell Equity, 97 ; White v. Crew, 16 Georgia, 
 416 ; Pollock v. Gilbert, Id. 398. Belief in Behalf of a Surety Against a Cred- 
 itor. — ^Eees V. Berrington, 2 Vesey, Jr., 540 ; Viele v. Hoag, 24 Vermont, 46 ; Ex 
 parte Mure, 1 Cox, 63 ; Wflliams v. Price, 1 Simon & Stewart, 581 ; Capel v. But- 
 ler, 2 Simons, 457 ; Hayes e. Ward, 4 Johns. Chy. 123 ; Gallaherj). Eoberts, 1 W. 
 C. C. E. 156, 328 ; Bumham v. Floury, 37 Missouri, 459 ; Woodhouse v. Farebroth, 
 5Ellis&Bl. 227 ; ZmceBabcock, 3Story, 93; Garlicki). McArthur, 6 Wisconsin, 450; 
 Stephenson v. Tavemers,' 9 Grattan, 398 ; Irick »' Black, 2 C. E. Green, 199. 
 In order to give Effect to a Set-off. — Lindsay v. Jackson, 2 Paige, 581 ; Hendrickson 
 V. Hinckley, 17 Howard, 445 ; Clarke v. Coit, 1 Craig & Philips, 154 ; Gay v. Gay, 
 10 Paige, 369, 392 ; WUliams v. Davis, 5 Maddox, 32 ; Wolf v. Bates, 6 S. & E. 
 242, 244 ; ChUderson v. Hammond, 9 S. & E. 68 ; Selden v. Eandall, 7 Gushing, 
 217 ; The Commonwealth v. The Phcenix Bank, 11 Metcalf, 129 ; Nickerson v. 
 Gilliam, 29 Missouri, 456 ; Dorsey v. Eeese, 14 B. Monroe, 157 ; Murray v. Wil- 
 liamson, 3 Binney, 135 ; Hugg v. Brown, 6 Wharton, 468, 474 ; Mead v. Merritt, 
 
30 jDRiSDicrrioN of couets of equity. § 9 
 
 fendant has no mode of escaping from it. He is compelled to 
 await the verdict. But the situation of a plaintiff is very dif- 
 ferent. If he find himself deceived in his testimony, and think 
 that he can strengthen it, or if he be surprised by the introduc- 
 tion of unexpected testimony on the part of the defendant, and 
 believes that it will be in his power at some time to explain, rebut 
 or disprove it, he can have an opportunity of doing so, by suffer- 
 
 2 Paige, 403 ; Hewitt v. Kuhl, 10 C. E. Green, 24 ; Eawson v. Samuel, 1 Craig & 
 Philips, 171 ; Preston v. Stratton, 1 Anstruther, 50 ; Robinson v. Wheeler, 51 N. 
 H. 385 ; Cummings v. Norris, 25 New York, 625 ; Duncan v. Lyon, 3 Johns. Chy. 
 351 ; Kuour v. Dick, 14 Indiana, 20 ; Davis v. MUbum, 3 Clark, 163 ; Crist v. 
 Brindle, 2 Eawle. 121 ; Smith v. Fulton, 45' New York, 419. Relief where there 
 has been Fraud, Surprise, Ignorance, Accident, or ilfisto Ae.-»-Smith v. Lowry, 1 John- 
 son Chy. 320 ; Anderson v. Roberts, 18 Johnson, 516 ; Jamison v. May, 8 English, 
 60(3 ; Hill V. McNeill, 8 Porter, 432 ; French v. Garner, 7 Id. 549 ; Bishop v. Dun- 
 can, 3 Dana, 15 ; Williams v. Lee, 3 Atk. 223 ; Howe v. Martell, 28 Illinois, 445 ; 
 Propst V. Meadows, 13 Illinois, 160 ; Anderson v. Roberts, 18 Johnson, 538 ; Wildey 
 1). McCamell, 63 Illinois, 238; Biggins v. Brockman, Id. 316; Gardner v. Bowling, 
 12 Gill & Johnson, 381 ; Vathir v. Zane, 6 Grattan, 246 ; French v. Carver, 7 Porter, 
 549 ; Drew v. Hague, 8 Alabama, 438 ; Watts v. Gayle, 20 Id. 87 ; Monk v. Cardifl, 
 6 Porter, 24 ; Powel v. Stewart, 17 Alabama, 719 ; Robb v. Halsey, 11 Smedes & 
 Marshall, 140 ; Watson v. Palmer, 5 Arkansas, 501 ; Lester v. Hoskins, 26 Arkansas, 
 63 ; Jamison v. May, 13 Id. 600 ; Essex County v. Berry, 2 Vermont, 161 ; English 
 V. Savage, 14 Alabama, 342 ; Duncan v. Lyon, 3 Johnson Chy. 351 ; Glover « 
 Hodges, Saxton, 351 ; Meem v. Rucker, 10 Gratt. 506 ; Bentley v. Dollard, 1 
 English, 79 ; Fowler v. Roe, 3 Stockton, 367 ; Thurman v. Durham, 3 Yerger, 991 ; 
 Burton v. Wiley, 26 "S^ermont, 430 ; Stinnett v. The Branch Bank of Mobile, 9 Ala- 
 bama, 120 ; Deaver v. Ii-vin, 7 Iredell Eq. 250 ; Woodworth v. Van Buskirk, 1 
 Johnson Chy. 432 ; Drew v. Hayne, 8 Alabama, 438 ; The State Bank v. Stanton, 
 2 GUman, 352 ; Governor v. Brown, 13 Alabama, 540 ; Vaughan v. Johnson, 1 
 Stockton Ch. 178 ; Burgess v. Lovengood, 2 Jones Eq. 457 ; Stewart v. Carr, 50 
 Illinois, 228 ; Falls v. Robinson, 5 Maryland, 365 ; Robison v. Wheeler, 51 New 
 Hampshire, 385 ; Houston v. Smith, 6 Iredell Eq. 264 ; Holmes v. Stateler, 57 Illi- 
 nois, 209 ; Meem v. Rucker, 10 Gratt. 506 ; Slack v. Wood, 9 Gratt. 40 ; Floyd 
 V. Jayne, 6 Johnson Ch. 479 ; Bieme v. Mann, 5 Leigh, 364 ; Hare v. Lowe, 19 
 Alabama, 224 ; McGrew v. Tombeckbee Bank, 5 Porter, 557 ; Taylor v. Sutton, 
 15 Georgia, 103. Belief because of after-discovered Eddence. — Norton v. Wdods, 5 
 Paige, 249 ; Molder v. McCann, 7 Id. 456 ; Jordan v. Laftin, 13 Alabama, 547 ; 
 Nelson V. Leigh, 4 Iredell Eq. 100 ; Henderson v. Mitchell, 1 Bailey Eq. 113 ; Le 
 Guem V. Gouvemier, 1 Johnson's Cases, 495 ; Cantey v. Blair, 1 Richardson Eq. 
 41 ; BUlups V. Sears, 5 Grattan, 31 ; Williamson v. Johnson, 1 Halstead, 537 ; 
 Davis V. Tillston, 6 Howard, 114 ; Rust v. Ware, 6 Gi-attan, 50 ; The Ocean Ins. 
 Co. V. Field, 2 Story, 65 : Fitch v. Polk, 7 Blackford, 564 ; Falls v. Robinson, 5 
 Maryland, 365 ; Williams v. Lee, 3 Atk. 223. 
 
§ 9 RELIEF TO ONE PAETY AND NOT TO ANOTHER. 31 
 
 ing a non-suit, and commencing his action anew.' It is, therefore 
 an established rule, that where a new trial or other relief is prayed 
 on behalf of a plaintiif at law, who might have had full redress 
 by suffering a non-suit, equity will refuse its interference, unless 
 some sufficient excuse for omitting the non-suit be alleged and 
 proved.^ 
 
 In Tarpley's Adm'r v. Dobyns, the case stated by the bill was, 
 that the plaintiff instituted a suit at law against the defendant for 
 a debt, and not suspecting that the defendant would contend that 
 the debt should be scaled, he was unprepared to prove the defend- 
 ant's declarations that it was a specie debt, in consequence whereof 
 the jury reduced the debt to a smaller sum than the defendant 
 had actually paid, and found a verdict against the plaintiff. Here 
 it was held that the surprise could not avail the complainant, since 
 when he discovered a disposition in the defendant to make use of 
 the legal advantage at the trial he might have suffered a non-suit. 
 
 The case of Oswald, &c. v. Tyler was of a similar nature. 
 An action of debt was brought upon a bond, and issue joined 
 upon the plea of payment ; neither the plaintiffs nor their attor- 
 nies believed that any serious opposition was intended to be made ; 
 a trial was had in the absence of the plaintiffs, and upon the evi- 
 dence introduced by the defendant a verdict and judgment were 
 rendered in his favor. The plaintiffs then came into equity on 
 the ground of surprise, and showed that, if they had been apprized 
 of the real intentions of the defendant, and of the nature of the 
 evidence on which he relied, they could have introduced such 
 evidence on their part as would have deprived the testimony of 
 the defendant of all its weight, and established clearly their right 
 to a judgment. But the court was of opinion that equity could 
 give no relief. 
 
 If, however, the action of the plaintiff has been defeated by 
 
 'Oswald, &c. 1). Tyler, &c., 4 Eand. 44. 
 
 'Richards v. Symes, 2 Atk. 321 ; Tarpley's Adm'r v. Dobyns, 1 "Wash. 185 ; 
 Hudson V. Kline, 9 Gratt. 383. 
 
32 JURISDICTION OF COURTS OF EQUITY. § 10 
 
 the defendants proceeding under those provisions of the statute/ 
 upon pleading which the defendant as to his claim becomes the 
 plaintiff; in such case we cannot doubt that the same privilege 
 will be extended to a plaintiff so situated as under the rules of 
 equity a defendant enjoys. 
 
 Interference in Advance of Judgment. 
 
 § 10. The same general rules which forbid courts of equity 
 from setting aside judgments rendered at law, apply to an inter- 
 ference in a pending suit in advance of a trial, '^ and unless it 
 appears that the defendant cannot protect his rights and make a 
 full defence in the suit at law, the courts of equity will not inter- 
 fere, but will leave the applicant to a determination of the contro- 
 versy before the forum to which he has first been summoned. 
 
 The established and universal practice of courts of equity is 
 to dismiss the plaintiff's bill if it appears to be grounded on a 
 title merely legal and cognizable by the courts of law, and this, 
 notwithstanding the defendant has answered the bill, and insisted 
 on matters of title."* In the United States courts the practice is 
 to regard this objection as jurisdictional, and it may be enforced 
 by the court nua sponte, though not raised by the pleadings, nor 
 suggested by counsel.'' This rule equally prevails in Virginia.* 
 
 It is, nevertheless, well settled, that an injunction may be 
 granted as well before as after judgment, whenever there is a 
 valid defence' which depends on questions solely cognizable in 
 
 > § 3303, Code. West Va., Ch. 126, ? 9. 
 
 ^ Koss V. Harper, 99 Mass. 107. 
 
 ■' Welby V. Duke of Rutland, 6 Broivn' s Parliamentary Cases, 575 ; Grand Chute 
 V. Winegar, 15 Wallace, 375 ; Pollock v. Gilbert, 16 Geo. 398, 62 Am. Dec. 732, 
 note, p. 737. 
 
 *0elrich8t). Spain, 15 Wallace, 228 ; Parker ti.Winnipisiogee Company, 2 Black. 
 •551 ; Graves v. Boston Company, 2 Cranch, 419 ; Fowle v. Laurdson, 5 Peters, 495 ; 
 Dade v. Irwine, 2 Howard, 383. 
 
 ' Jones V. Bradshaw, 16 Grat. 355 ; Green & Suttle v. Massie, 21 Grat. 363 ; 
 Hudson V. Kline, 9 Grat. 379 ; Beckley v. Palmer, 11 Grat. 625 ; Tapp's Adm'r 
 V. Eankin, 9 Leigh, 478. 
 
 « Leading Cases in Equity, Vol. 2, Pt. 2, p. 1369. 
 
§ 10 INTEEFEREXCE IX ADVANCE OF JTDGMEXT. 33 
 
 equity-, and which cannot be appropriately considered or detemuQed 
 at law.' 
 
 As illustrations of the class of cases in which relief in equity 
 mil thus be granted, are cited bonds and mortgages, and other 
 penal securities and covenants where by the strict rules of law the 
 party after forfeiture can obtain no relief ; ^ cases of set-off in equity 
 which are not cognizable at all at law as such ; ' where one bv 
 fraud has obtained a title, and seeks to enforce it by an ejectment •* 
 where the suit involves a complicated account f where a surety has 
 been discharged by an unauthorized variance of the contract ;* and 
 where the creditor's negligence or misfeasance has resulted in the 
 loss or misappropriation of a security given for the debt.' 
 
 Relief is also granted where, if the suit be allowed to go to 
 judgment, it will give rise to a circuity of action ;- and in order 
 to prevent a multiplicity of suits ; and where discovery is neces- 
 
 ' Leading Cases in Equity, Vol, 2, Pt. 2, p. 1335 ; Jameson r. Deshidd, 3 Grat. 
 4 ; Penn et ah v. Ingles, 82 Va. 69. 
 
 * As to this class of cases, however, the statute (Code, § 3393, 3394 ; Code West 
 Va. 131, II \&, 17), being peremptorv that a judgment can only be rendered for 
 the penalty of the bond to be discharged by the payment of the principal and 
 interest, no relief is necessary, and none should be granted. Waller v. Long, 6 
 Munf. 71. Of concurrent defences, see Post, § 16. 
 
 ^Story's Equity Jurisprudence, § SS2. 
 
 ■'Leading Cases in Equity, ^'ol. 2, Pt. 2, p. 1336. 
 
 » Staples v: Turner's Adm'r el al, 29 Grat. 330. 
 
 ' 2 American Leading Cases, 4oO. This instance is mentioned as ground for 
 equitable reUef in Story's Equity Jurisprudence, § S82, but in the note thereto it 
 is stated that " this defence is now equally aTailable at law as in equity," of which 
 see Post, I 135, Div. XI. See also 2 Bart. Law Pr., p. lOSO. 
 
 ■Hayes v. Ward, 4 Johnson's Chy. E. 123 ; where, however, the plea stated 
 that the plaintiff had so carelessly and improvidently managed and controlled 
 certain stock pledged as security for the debt as that the same had before the com- 
 mencement of the suit become utterly valueless and unavailing, and lost to the 
 ' defendant as property, it was held not to be a good defence, and hence would not 
 avail as a ground for relief in equity. Even had the plea stated that the plaintiS 
 did not sell the stock, or have it sold, but retained possession of it until it perished, 
 unless it further stated that defendant had directed the sale of it, it would not have 
 constituted a good defence. Eichardson !-. Lis. Co. of "S'aUey of Va., 27 Grat. 752. 
 
 * Wright V. Austin, 55 Barb. 133 ; Cabaness v. Matthews, 2 Gratt. 325 ; Oebriehs 
 f. Spain, 15 WaUace, 211 ; Williams v. Hudson, 1 Barb. Chy. 298. 
 
 3 
 
34 JURISDICTION OF COUETS OF EQUITY. § 10 
 
 sary in aid of a defence at law, an injunction will be granted, 
 restraining the further prosecution of the case until a fiill dis- 
 closure is made in accordance ■with the prayer of the bill, provided 
 the case set forth and sworn to by the complainant is a good 
 defence to the proceeding which he seeks to enjoin ;^ and provided 
 further,^ that the bill for discovery be filed before judgment has 
 been rendered, for it cannot be entertained afterwards.^ 
 
 It has also been held that a surety may file a bill to restrain 
 the creditor from proceeding against him at law, and for a decree 
 that the debt shall be discharged by the principal as the party 
 primarily liable ; although the court will not grant the injunction 
 where it will prejudice the creditor, nor after he has obtained judg- 
 ment,* unless it appears that execution was issued coUusively at 
 the instance of the principal, after the debt had been satisfied by 
 him or on his behalf.' 
 
 In the case of Stephenson v. Taverners, 9 Grat. 404, it was 
 held, that where the principal was dead, a surety might file a bill 
 quia timet against the creditor and the execution debtor, to compel 
 the latter to pay the debt, so as to exonerate the surety from 
 responsibility, and to enforce, for his exoneration, any liens of the 
 creditor on the estate of the principal. " The general rule," said 
 Staples, J., in the case of Meade v. Grigsby's Adm'r, 26 Grat. 617, 
 " is that the creditor is under no obligation to look to the principal 
 debtor or to his property ; he is not bound to exhaust his remedies 
 against the latter before resorting to the surety ; but the rule is 
 not universal." ' 
 
 • Broughton v. Phelps, 6 Paige, 300. 
 
 ' Green & Suttle v. Maasie, 21 Grat. 359. 
 
 ' Duncan v. Lyon, 3 Johns. Chy. E. 351 ; Brown u Swan, 10 Peters, 497 ; George 
 V. Strange' s Ex' or, 10 Grat. 499. 
 
 * In re Babcock, 3 Story, 93 ; Garlick v. McArthur, 6 Wisconsin, 450. 
 ^ Stephenson v. Taverners, 9 Grat. 398. 
 
 ' For a fuU discussion of this rule and the exceptions to it, see the case of Hayes 
 V. Ward, 4 John. Chy. E. 131. The estate of a Committee should be first ex- 
 hausted before that of his sureties is touched, for money for which he is officially 
 liable. PanniU's Adm'r v. Calloway's Committee, 7? Va. 387. 
 
§ 10 INTBRFEKENCE IN ADVANCE OF JTTDGMENT. 35 
 
 The learned judge then gave as the opinion of the court the 
 following circumstances, as constituting good ground for equitable 
 relief against the judgment at law : A suit is pending in the same 
 court in which the bill for an injunction was filed by the adminis- 
 trator of a deceased person as plaintiff, and to which both the 
 principal debtor and the administrator of the creditor were de- 
 fendants. In this suit orders and decrees had been made with a 
 view to ascertain the indebtedness of the principal debtor at the 
 time of the execution of a deed of trust by the principal debtor, 
 in which he secured the payment of all of his then existing debts, 
 and then made a settlement on his wife and children, and also to 
 adjust the accounts between the trust estate in fayor of his wife 
 and children and the estate of the creditor. It appeared also that 
 the estate of the latter was indebted to the trust estate for rents to 
 an amoimt exceeding the judgment against the surety. Upon this 
 statement of the case, as contained in the bill of the surety, the 
 demurrer of the creditor-defendant was overruled, and the decree 
 of the court below, dissolving the injunction, reversed. 
 
 In addition to the special instances mentioned, it may be stated 
 as a general rule, that in all cases where, by accident, or mistake, 
 or fraud, or otherwise, a party has an unfair advantage in proceed- 
 ings in a court of law, which must necessarily make that court an 
 instrument of injustice, and it is, therefore, against conscience that 
 he should use that advantage, a court of equity will interfere and 
 restrain him from using the advantage which he has thus improp- 
 erly gained, and it will also proceed to administer all the relief 
 which the particular case requires, whether it be by a partial or 
 by a total restraint of such proceedings.^ 
 
 In Story's Equity Jurisprudence,* § 883, it is said to be "well 
 
 ^ Stores Equity Jurisprudence, § 885. But where a lunatic was sued at law, 
 and judgment was rendered against him upon a deht contracted while he was of 
 sound mind, a court of equity refused to set it aside. Stigers v. Brent, 50 Md. 214 ; 
 33 Am. E. 317. For other instances illustrating the rules stated in the text see 
 Massie's Adm'r v. HeiskaU's Trustee, &c., 80 Va. 789; Banners Adm'r v. Freder- 
 ick el ah, 82 Va. 414. 
 
36 JURISDICTION OF COURTS OF EQUITY. § 10 
 
 settled that, wherever a creditor, m pursuance of a valid agree- 
 ment for such a purpose, gives time for payment to the principal 
 debtor, without the consent of the surety, the latter will be held 
 discharged in equity, although he might still be held bound at 
 law." And the same author adds : " Under such circumstances, 
 the surety has a right to restrain the creditor from proceeding at 
 law agamst him to recover the debt ; and a perpetual injunction 
 constitutes the true and effectual remedy." 
 
 At the time of this writing it was regarded by Judge Story as 
 exceedingly doubtful whether the matter of defence spoken of 
 could be asserted in a court of law, although there was no doubt 
 that it could be asserted in all cases in equity.' In a note to the 
 section from which we have quoted, in a late edition of Story's 
 Equity Jurisprudence, it is said, that " this defence is now equally 
 available at law as in equity," and such is, generally speaking, 
 doubtless the settled rule.^ 
 
 This, therefore, suggests the consideration of the question of 
 how far the fact that a defence is equally available at law as in 
 equity affects the right to relief in the latter court. As it is true 
 that the ancient jurisdiction of courts of equity cannot be defeated, 
 because by statute similar jurisdiction is given to the courts of 
 law,^ and the incorporation of equitable principles with the common 
 law, and the consequent extension of legal rights and remedies, do 
 not circumscribe the authority of a chancellor, or preclude him 
 from exercising any of the powers that have belonged immemori- 
 ally to his office,* so it would seem logically to follow, that the 
 
 ^ Story's Equity Jurisprudence, § 325, note; Rathbonej). Warren, 10 Johnson, 595. 
 
 ^ The People v. Janssen, 7 Johns. Eep. 332; S. C. 2 Johns. Eep. 554, 557. But 
 see Post, § 135, Div. XI. The extent to which this constitutes a good defence, and 
 the principle upon which it rests, are set forth in the case of Shannon v. McMullin, 
 26 Grat. 211; Comth. v. Holmes, 25 Grat. 771, and Adams et al v. Logan et als, 27 
 Grat. 201, but no question of jurisdiction is thei-e raised or determined. See also 
 2 Barton's Law Pr., p. 1080 and notes. 
 
 ''Story's Equity Jurisprudence, | 80. Carrothers v. Board of Education, &c., 
 16 W. Va. 527; Payne v. BuUard, 23 Miss. 88; 55 Am. Dec. 74; note, p. 77; Os- 
 born V. Ordinary of Harris County, 17 Geo. 123; 63 Am. Dec. 230; note, p. 232. 
 
 * Varet v. The New York Ins. Co.,, 7 Paige, 560, 
 
§ 10' INTEEFEEENCE IN ADVANCE OP JUDGMENT. 37 
 
 mere fact that the equitable defence over which the jurisdiction 
 of a court of chancery is invoked is also one that may be as well 
 set up at law, would not prevent the courts of equity from taking 
 jurisdiction. This is doubtless the rule where no proceeding at 
 law has been instituted, and the relief sought from equity is of a 
 preventive character ; and it has also been held, after an execution 
 had issued, that although a motion might be made to quash it at 
 law,^ yet a court of equity had jurisdiction to give relief, by way 
 of an injunction to inhibit further proceedings on the execution.^ 
 In this case, however, there were some peculiar equitable circum- 
 stances, aijd where these were absent, and the only claim was that 
 certain payments made since the judgment were not credited on 
 the execution, equitable rehef was refused.' 
 
 Of the instance before mentioned, the cases of the creditor ex- 
 tending the time, and thus discharging the obligation of the surety, 
 and other questions of defences growing out of the relation of 
 suretyship which once belonged exclusively to chancery, it is con- 
 tended that the weight of authority is, that a surety may come 
 before a chancellor for relief after an action at law has been 
 brought against him, and although the case has passed into judg- 
 ment;'' but we do not think that cases of this kind form any 
 exception to the settled principles on this subject."' 
 
 Judge Story^ lays down the general rule in these words : " Courts 
 of equity will not relieve against a judgment at law, where the 
 
 ^ Now when a motion to quash is made the com-t or judge in vacation may make 
 an order staying the execution, upon the proper bond being executed. Code, 
 I 3599. This was so provided to meet the decision of the case of Snavely v. Hark- 
 rader, 30 Grat. 487, 492-3. 
 
 ^ Crawford v. Thurmond et al, 3 Leigh, 85. 
 
 ^ Morrison v. Speer, 10 Grat. 228. See also Shumaker v. Nichols, 6 Grat. 592. 
 
 * Leading Cases in Equity, Vol. 2, Pt. 2, p. 1359 ; Kathbone v. Warren, 10 
 Johnson, 387 ; King v. Baldwin, 2 Johnson Ch. 554 ; 17 Johnson, 384 ; Montague 
 ■>:- Mitchell, 28 lUinois, 486 ; Smith v. Hays, 2 Jones' Eq. 821 ; MUler v. Gaskins, 
 ISmedes & Marshall, 524 ; Viele v. Hoag, 24 Vermont, 46. 
 
 ^ See Post, I 135, Div.. XL 
 
 * Story's Equity Jurisprudence, ? 894. But of this subject see a full discussion 
 in 3 16, Post. 
 
38 JtrKlSDICTlON OF COTJETS OP EQUITY. § 10 
 
 case in equity proceeds upon a defence equally available at law, 
 but the plaintiff ought to establish some special ground for relief. 
 The doctrine goes yet further; and it may be asserted to be a 
 general rule, that a defence cannot be set up as the ground of a 
 bm in equity for an injunction which has been fully and fairly 
 tried at law, although it may be the opinion of a court of equity 
 that the defence ought to have been sustained at law. If there 
 are any exceptions to this rule they must be of a very special 
 nature." Although the language is that equity will not relieve 
 against " a judgment at law," the context indicates that the author 
 regarded the rule as stated by him to be equally applicable to 
 relief asked before trial. 
 
 The general rule is, that where a court of law has taken juris- 
 diction, and the defence can be fully made there, a court of equity 
 will refuse to interfere ; ^ and it is always true, that where an 
 equitable defence, cognizable also at law, has been made at law 
 and overruled, equity will not interfere ; ^ though it would be 
 otherwise if the defence attempted at law was of such a character 
 that it could only be asserted in equity.' 
 
 A modification of the rule is found in the proposition that, 
 while where there is concurrent jurisdiction of the same matter, 
 and the plaintiff may sue in either forum, he should be compelled 
 to elect between them, for he should not be permitted to harrass 
 his adversary by pursuing him in both tribunals. No such choice 
 existing in the defendant, who is brought into court against his 
 consent, he may, when he has a distinct equitable, as well as a legal 
 defence to the action, set up his claim for equitable relief during the 
 pendency of the action, and without waiting for its determination.* 
 
 1 Leading Cases in Equity, Vol. 2, Pt. 2, p. 1362. Every presumption is in 
 favor of the judgment of a court of general jurisdiction. HUl v. Woodward et ah, 
 78 Va. 765. 
 
 2 Leading Cases in Equity, Vol. 2, Pt. 2, p. 1362 ; Peun et al v. Eeynolds, 23 
 Grat. 523. But see Post, p. 39, note 1, as to equitable defences under the statute. 
 
 ' Leading Cases in Equity, Vol. 2, Pt. 2, p. 1365. 
 * Warwick and Wife et ah v. Norvell, 1 Eob. 338. 
 
§ 10 INTEEFEUENCte IN ADVANCE OP JtTDGMENT. 39 
 
 The general rule as stated applies equally whether the legal 
 jurisdiction over matters of defence formerly only asserted in equity 
 has been acquired by express statute, or by the extension and en- 
 largement of common law principles, although it has been held that 
 the power of courts of equity to vacate judgments on the ground 
 of fraud and mistake had not been abrogated by a statute which 
 conferred a like power on the courts of law. 
 
 This question is frequently settled, however, by the provisions 
 of the statutes themselves. For instance, the Code of Virginia* 
 
 > Code, U 3299, 3300; Code W. Va., Ch. 126, §§ 5, 6. Sec. 6, Ch. 168, Code 
 1873, contained also the words, "if any such plea be rejected by the court as bad 
 or adjudged insufficient on demurrer," but these words are now omitted. Ante, 
 p. 15, note. Bamett v. Bamett, 83 Va. 735. While the omitted words were in 
 the statute the Court of Appeals of Virginia (Burtners v. Keran, 24 Grat. 72) 
 said, " these provisions plainly contemplate a plea stating the whole matter with 
 such particularity that if found against the defendant on demurrer or by the jm-y he 
 shall be barred of all relief in equity upon the same ground." The act as it stands 
 leaves it stUl clear that if issue of fact is joined on any plea under the statute for 
 equitable relief and the issue is determined against the defendant, he is barred of 
 relief in equity (Perm et al v. Eeynolds, 23 Grat. 518; Knott v. Seamonds, 25 W. 
 Va. 103), but the defendant has his election either to offer his equitable defence to 
 the action at law or to apply to a court of equity for relief (Penn et al v. Eeynolds, 
 23 Grat. 518), and even if he has filed his plea he may withdraw it and go into 
 equity (Knott v. Seamonds, 25 W. Va. 103), but this does not touch the effect to 
 be given by the courts to the omission from the Virginia statute of the words 
 quoted. While they were in the statute it is clear that if a demurrM' to a plea 
 offering an equitable defence was sustained, the same defence could not afterwards 
 be asserted by resorting to a court of equity. What is the effect of this omission ? 
 These words seem never to have been a part of the statute of West Virginia. In 
 the case of Bias v. Vickers, 27 W. Va. 464, Judge Snyder compares the statutes of 
 the two States in this respect and says, "It is the ommission on the part of the 
 Virginia statute which makes the doubt in ours." * * * "It seems to me that 
 the Virginia statute would, in every instance where a plea was rejected as bad or 
 held insufficient on demurrer, preclude the party from relief in equity, although it 
 might clearly appear such relief was held bad or insufficient upon grounds not 
 affecting the defence sought to be made by it. It might be rejected as bad or held 
 insufficient for some merely technical error which, although good ground for dis- 
 allowing it, might have no reference to the sufficiency of the matters contained and 
 set forth in it as a defence. Under the Virginia statute all the matters set forth in 
 such plea, although never passed upon in the court of law, would be concluded, 
 and relief on account of such matters denied in equity. In such case the party 
 would be denied all right to test the merits of his defence either in a court of law 
 or of equity. I, therefore, think that the omission in our statute was intended 
 
40 JXnRISDICTION OF COURTS OF EQUITY. § 10 
 
 provides that in any action on a contract the defendant may file a 
 plea alleging any such failure in the consideration of the contract, 
 or fraud in its procurement, or any such breach of any warranty 
 to him of the title, or the soundness of personal property, for the 
 price or value whereof he entered into the contract, or any other 
 matter which would entitle him either to recover damages at law 
 from the plaintilF, or the person under whom the plaintiif claims, 
 
 simply to relieve the party from any such possible hardship ; but it was not intended 
 to give a party whose defence had been fairly adjudicated upon the merits by a 
 court of law, whether such adjudication was upon an issue of law raised by a 
 demurrer to his plea or an issue of fact, the right to have such issue of law or fact 
 again heard and tried in a court of equity. ' ' The learned judge further remarks 
 that his conclusion is strengthened " by the provision which declares that when the 
 plea is rejected because not offered in time it shall not operate as a bar, thus indi- 
 cating that if the plea was rejected for any other cause the matter set forth in it 
 could not be reheard in equity." This last observation might be construed into 
 giving to a statute which does not contain the omitted words the same force and 
 meaning that a statute containing the words carries. Evidently Judge Snyder does 
 not mean this, but it is apparent that he does mean that even under the statute 
 of West Virginia a plea of equitable relief once passed on on demurrer excludes 
 all further relief on the same ground in equity, but it may well be that a plea 
 offered and which the court refuses to permit to be filed, or a plea filed and ex- 
 cluded on motion to strike it out, may not bar relief in equity on the same ground 
 as that stated in the plea. But even here if the plea is rejected on the ground that 
 it was not good in law it would have the same effect as if it had been held bad on 
 demurrer. And this question is to be determined on the rules governing all ple£(3 
 of res adjndicata. (See Post, § 121.) But I believe that the change was meant 
 to be much more far reaching than that indicated by Judge Snyder, and in expla- 
 nation of it I quote as follows from a letter of Hon. E. C. Burks (one of the 
 Kevisors of 1887, to the author): "Under the former law, the defendant, if his 
 plea when offered was 'rejected as bad' or on demurrer was 'adjudged insufi[icient,' 
 could never afterwards get relief on the ground stated in the plea, but would be 
 compelled to resort to an appellate coui-t, if a case in which a writ of error would 
 lie, for cori-ection of errors. The effect of the change by ? 3300 of the Code is to 
 give him the option either to seek relief by writ of error (if such writ is allowable) 
 or to resort to a court of equity. He is not now deprived of his right to resort to 
 a court of equity by the bare judgment of the law court (whether original or 
 appellate) rejecting his plea as bad or adjudging it msuffioient on demurrer. And 
 this, I think, is as it ought to be. At any rate such, in my judgment, is the legal 
 effect of the change in the former law, made by | 3300 of the Code." In Jarrett 
 V. Goodnow etal, 39 W. Va. R 602 (20 S. E. E. 675), it was held that a party 
 entitled to plead in an action at law the defences specified in § 5, Ch. 126, Code 
 1891, need not plead them in the action, but may avaU himself of them in equity 
 without any excuse for not using them at law. 
 
§ 10 INTERFERENCE IN ADVANCE OP JUDGMENT. 41 
 
 or to relief in equity, in whole or in part, against the obligation 
 of the contract ; or -if the contract be by deed, alleging any such 
 matter arising under the contract, existing before its execution, or 
 any such mistake therein, or in the execution thereof, or any such 
 other matter as would entitle him to such relief in equity. Then 
 the Code further provides, that if a defendant entitled to such 
 plea shall not tender it, or though he tender it, if it be rejected 
 for not being offered in due time, he shall not be precluded from 
 such relief in equity as he would have been entitled to, if the 
 section providing for the plea had not been enacted. And if 
 when issue in fact is joined thereon, such issue be found against 
 the defendant, he shall be barred of relief in equity upoij the 
 matter alleged in the plea, unless upon such ground as would 
 entitle a party to relief against judgments in other cases. 
 
 The effect of this statute as to sealed instruments has been 
 declared * to be that where a deed is procured by fraudulent mis- 
 representation, the defence can only be made at law in the mode 
 provided by the statute, and the defendant should file a special 
 plea, averring the fraud or equitable circumstances which entitle 
 him to relief in equity. And the facts should be set forth with 
 sufficient precision and certainty to apprise the plaintiff of the 
 character of defence intended to be made, and to enable the court 
 to decide whether the matter relied on constitutes a valid claim to 
 equitable relief. 
 
 The views given on this subject are further illustrated by the 
 settled rule, that where a party has a right to make his defence 
 
 ^ Burtners v. Keran, 24 Grat. 42, as interpreted by the same Court in the case of 
 Bichardson v. Ins. Co. of Valley of Va. , 27 Grat. 754. An inspection of the record 
 of the first named case shows, however, that the plea that the deed was procured 
 by fraudulent misrepresentation never was tendered, and in such a case the statute 
 does not preclude a party from relief in equity. The language of 'Judge Staples, 
 in the case of Burtners v. Keran, 24 Grat. 71, is : "But where the deed was pro- 
 cured by fraudulent misrepresentation, relief can be obtained only in a coui't of 
 equity. Under the fifth section of Ch. 172, Code of 1860, (same as § 3299, Code 
 West Va., Ch. 126 I 5, substantially, ) the defendant in any action is now permitted 
 to allege and show any such fraud in the procurement of the contract as would 
 entitle him to relief in a court of equity." 
 
42 JtTEISDICTION OP COT7ETS OF EQUITY. § 11 
 
 either at law or in equity, and elects to defend at law, he cannot 
 afterwards apply for relief to a court of chsfticery, unless he does 
 so upon the grounds against which courts of equity are never 
 closed, — ^that is, fraud, misfortune, surprise, or accident, unaccom- 
 panied by any laches on the part of the applicant.^ It has also 
 been held, that where certain statutes gave both the right to defend 
 the action at law, and also to have relief in equity, a party who 
 availed himself of the right given to make his defence at law 
 could not afterwards ask relief in equity under the other section.^ 
 This subject will be further discussed when we come to consider 
 matters affording concurrent jurisdiction.' 
 
 The new Trials of Cases at Law awarded by Courts of Equity. 
 
 § 11. The object of invoking the aid of a court of equity to 
 set aside a judgment at law must be, of course, except in those 
 cases in which the application is based on something which has 
 occurred since the judgment, to enable the applicant to prosecute 
 or defend his case upon some of the grounds already stated as 
 proper for a court of equity to take cognizance of, in spite of the 
 fact that a trial has been had at law, — that is, to give him a new 
 trial when it is too late to apply for one before the court that tried . 
 the case, under circumstances in which it is against conscience that 
 the judgment should stand, and the conduct of the applicant has 
 been such as to satisfy the court that the delay has not been caused 
 by his own laches. 
 
 To sustain an application for a new trial in equity, it should 
 
 appear, not only that the complainant could not lay his case before 
 
 the jury, but why he did not move to set aside the verdict ; and 
 
 although the province of a court of equity to enquire into an 
 
 alleged mis-trial still subsists, it has been circumscribed, and will 
 
 not be exercised unless it appears, not only that the verdict was 
 
 1 Goolsby 11. St. John, 25 Grat. 153 ; White v. Washington's Ex' or, 5 Grat. 648 ; 
 Leading Cases in Equity, Vol. 2, Pt. 2, p. 1363. 
 
 = Penn et al v. Eeynolds, 23 Grat. 523 ; Sanders v. Branson, 22 Grat. 364. 
 ' Post, i 16. 
 
§ 11 NEW TRIALS OP CASES AT LAW. 43 
 
 erroneous, but that the plaintiif could not have had the mistake 
 rectified by the use of proper diligence.^ 
 
 " Courts of equity," said Judge Staples, in the case of Green & 
 Suttle V. Massie, 21 Grat. 358, "relieve against judgments at law 
 upon the ground that the party injuriously affected thereby has a 
 defence of which he might have availed himself, but was prevented 
 by fraud or accident, unmixed with any fault or neglect on his 
 part. If the facts upon which the application for relief is based, 
 were known to the party at the time of the trial in the law court, 
 it is his duty to bring them to the consideration of that court, or 
 furnish some reasonable and satisfactory excuse for his failure to 
 do so." * * * « The cases fully establish, that after a trial 
 at law, a party, to entitle himself to have a new trial granted by 
 a court of equity, must show that he has been guilty of no laches, 
 and that he has done everything that could be reasonably required 
 of him to obtain relief at law. Without such excuse, which is to 
 be judged of according to the circumstances, he cannot get relief 
 in equity." ^ 
 
 A party permitting judgment to go by default without at^ 
 tempting to procure the attendance of witnesses, or filing a bill of 
 discovery in aid of his defence at law, where that is necessary, 
 independent of the statute ^ providing for such cases, is regarded 
 
 1 Leading Cases in Equity, Vol. 2, Pt. 2, p. 1378; Smith v. Lowry, 1 Johnson 
 Chy. 320; Anderson v. Roberts, 18 Johnson, 516; Jamieson v. May, 8 English, 600; 
 Hill V. McNeiU, 8 Porter, 432; French v. Gamer, 7 Id. 549, Bishop v. Duncan, 
 3 Dana. 15; Wynne ij. Newman's Adm'r, &c., 75 Va. 811; Hevener v. McClung, 
 Adm'r, &c., 22 W. Va. 81; Sayre et al v. Kmg et al, 17 W. Va. 562; Ayres v. 
 Morehead's Adm'r, 77 Va. 586. Before equity wUl grant a new trial of an action 
 at law three things hiust concur: ignorance of the defence sought to be set up, at 
 the time the judgment at law was rendered; diligence on the part of the com- 
 plainant; and that adequate relief cannot be had at law. Taylor v. Sutton, 15 
 Geo. 103; 60 Am. Dec. 682; note, p. 686. See also the grounds upon which a 
 court will grant a new trial for surprise and when it will refuse the application. 
 Delmas v. Maigo, 25 Texas, 1; 78 Am. Dec. 516; notes, 518 to 520. 
 
 ^ Green & Suttle v. Massie, 21 Grat. 359 ; Faulkner's Adm'r v. Harwood, 6 Band. 
 133. 
 
 ' 2 3451 as amended by Act of February 20, 1894, Acts 1893-4, p. 376, ? 3452 ; 
 Code of West Va., Ch. 134, U 5-6. 
 
44 JURISDICTION OP COURTS OF EQUITY. § 11 
 
 as in no better position than a defendant who submits a case to a 
 jury without the exercise of due diligence in preparing for his 
 defence.^ If the application for a discovery be delayed until after 
 the trial, a court of equity will not on that accoiuit set aside the 
 judgment and award a new trial. Such an application must be 
 fortified by a sufficient excuse for not having filed the bill of dis- 
 covery before verdict.^ 
 
 The general rule is again comprehensively stated by Judge Lee, 
 in the case of Haseltinev. Walton & Brickey d ah, 16 Grat. 120 : 
 " Where a party has liad a day in which he could make his defence 
 in the proper forum, before a verdict and judgment against him, 
 equity will not entertain him and grant relief after such verdict 
 and judgment, unless in cases of fraud, accident, or surprise, or 
 some adventitious circumstance, unmixed ^vith negligence on his 
 part, which shall sufficiently account for the omission to seek its 
 intervention before judgment." It was consequently held that a 
 party who permitted a judgment to go against him as garnishee, 
 with notice of an assignment of the debt, and afterwards suffered 
 another judgment to be rendered against him in favor of the 
 assignee, could not obtain relief in equity against either judgment, 
 or compel the parties by a bill of interpleader to settle the true 
 ownership of the debt.^ 
 
 In the case of Adams v.- Hubbard, 25 Grat. 129, the excuse 
 urged by the party seeking relief in equity for not having de- 
 
 1 Green & Suttle v. Massle, 21 Grat. .359. 
 
 ^ Green & Suttle v. Massie, 21 Grat. 3.59 ; Barber jj.Elkins & Simpson, 1 John. 
 Chy. K. 40-3 ; Duncan v. Lyon, 3 John. Chy. K. 351 ; Brown v. Swan, 10 Peters, 
 497 ; Thurmond v. Durham, 3 Yerg. R 991 ; Harrison v. Harrison, 1 Litt. E. 137 ; 
 Alley i;. Ledbetter, 1 Dev. Eq. E. 449; Foltz v. Powrie, &c., 2 Desau. E. 40; 
 Norris v. Plume, 2 Leigh, 334. 
 
 ' Haseltine v. Walton & Brickey el als, 16 Grat. 116 ; Green & Suttle v. Massie, 
 21 Grat. 360 ; Eichmond Enquirer Co. v. Eobinson et als, 24 G^at. 548 ; Dungey 
 V. Angrove, 2 Ves. Jr. E. 310 ; Langston v. Boylston, 2 lb. 107 ; Angel v. Hadden, 
 15 lb. 244 ; Hoggart v. Cutts, 1 Craig & PhU. 204 ; Glyn v. Duesberry, 11 Sim. E. 
 147 ; Sieveking v. Behreu, 2 Myl. & Craig, 581 ; Richards v. Salter, 6 Johns. Chy. 
 E. 445 ; Badean v. Eogers, 2 Paige's E. 209 ; 3 Danl. Ch. Pr. 1753-1755 ; Story's 
 Eq. PI., § 291 ; 2 Story's Equity Jurisprudence, § 806. 
 
§ 11 NEW TRIALS OF CASES AT LAW. 46 
 
 fended himself at law was, that he was not able to attend the 
 court on accoimt of age and sickness ; but as he was regularly 
 served with process, and there was no reason why he should not 
 have employed some one to defend the case for him, which he 
 failed to do, his excuse was held to be altogether inadequate. The 
 fact, however, that the judgment had been obtained by the plain- 
 tiff by some management and contrivance, which was not free 
 from suspicion of unfair conduct, was regarded by the court as 
 probably suf&cient to have justified the judgment to have been 
 set aside, and a new trial awarded, notwithstanding the gross and 
 culpable neglect of the defendant. But after the injunction was 
 obtained in the lower court, the whole matter was submitted to 
 arbitrators, who rendered their award declaring that the injunction 
 should be dissolved. This the court of appeals regarded as equiva- 
 lent to a new trial, and as disposing of the case up to that point. 
 But after the award was rendered, a motion was made to set it 
 aside, upon the ground of mistake, both of law and fact, by the 
 arbitrators, and also because of evidence discovered by the plaintiff 
 since the award was made. This the court of appeals, upon the 
 case made refused, holding that the rules governing courts of equity 
 in awarding new trials in actions at law on the ground of after 
 discovered evidence, apply equally to motions to set aside an 
 award on that groimd. These rules are in equity just what they 
 are held to be at law, and require that the evidence must have 
 been discovered since the trial ; must be such as reasonable dili- 
 gence on the part of the defendant could not have secured at the 
 former trial ; must be material in its objects, and not merely cumu- 
 lative or collateral, and must be such as ought to produce on 
 another trial an opposite result on the merits.' Of course it must 
 appear also that the discovery was not made until it was too late 
 to use it as the basis of an application for a new trial before the 
 
 ' Bead v. Commonwealth, 22 Grat. 924 ; Zickefoose v. Kuykendall, 12 W. 
 Va. 23. 
 
46 jTJEisDicrriON of courts of equity. § 11 
 
 court of law.^ In a bill filed for a new trial on this ground, all 
 the evidence that was before the court of law must be reproduced 
 before the chancery court; for if the record only presents the 
 newly discovered evidence, while it may be true that it was the 
 only evidence ia the case, the verdict would be wrong ; yet it may 
 be true also that there was other evidence which might have jus- 
 tified the verdict, even if the newly discovered evidence had also 
 been before the jury.^ 
 
 Relief in equity against a judgment by default was refused 
 where it was doubtful whether or not the process was sufficiently 
 served, because ia such case the statute' affijrds a remedy at law 
 by a motion to set aside the judgment, and to correct the error.* 
 In such cases also it is declared that the provisions of the statute 
 for the correction of an erroneous judgment by default brings the 
 case within the rule that where there is an adequate remedy at 
 law, no relief will be granted by a court of equity.^ 
 
 Where, however, the process was not duly executed, and the 
 complainant was ignorant of the commencement or existence of 
 the suit until more than two years had elapsed after the recovery 
 of the judgment thereon, within which time he would have been 
 entitled under the statute to move to set it aside, it was held that 
 this presented a clear case for relief.* 
 
 It is said' to be a general rule that courts of equity will not 
 grant new trials on the ground that a receipt or other material 
 
 ' For instance and applications of the rules governing in such cases, see BiUups 
 V. Sears et ah, 5 Grat. 31; Kust el als v. Ware, 6 Grat. 50. 
 
 ' Adams v. Hubtard, 25 Grat. 136; Callaghan v. Kippers, 7 Leigh, 608; Mark- 
 ham V. Boyd, 22 Grat. 548. 
 
 3 ? 3451 as amended by Act of February 20, 1894; Acts 1893-4, p. 376, § 3452. 
 Code of W. Va., Ch. 134, U 5-6. 
 
 < Goolsby &c. V. St. John, 25 Grat. 159. 
 
 ^Id., 161. 
 
 ^ Kibbe v. Benson, 17 Wallace, 624. See also Marine Insvirance Company v. 
 Hodgson, 7 Cranch, 336. 
 
 ' Leading Cases in Equity, Vol. 2, Pt. 2, p. 1380; Anderson v. Roberts, 18 
 Johnson, 533. 
 
§ 11 NEW TRIALS OP CASES AT LAW. 47 
 
 document was lost or missing, and has been discovered since the 
 verdict ; and this is declared to be a rule of policy intended to 
 secure care and vigilance, and prevent parties from coming for- 
 wa,rd subsequently with evidence which close investigation would 
 have disclosed at the time ; for it is truly said that a failure of 
 justice in a particular instaince is not so great an evil as that there 
 should be no certain end to litigation. 
 
 ^ An exception to this rule is declared to exist when it appears 
 from the pleadings or proof that the complainant must have 
 known that his demand was unconscientious and yet went on to 
 judgment. "Such a case," says the writer from whom I am 
 quoting, " may arise when a creditor who has been paid in full 
 brings suit, and obtains a judgment in consequence of the ina- 
 bility of the defendant to lay his hands on a receipt which is sub- 
 sequently found and produced. Under these circumstances the 
 debtor can hardly be acquitted of laches, and yet a chancellor may 
 issue an injunction to prevent the creditor from taking advantage 
 which is distinguishable in its effects from fraud." ' 
 
 If there be such a rule as is thus contended for, which draws a 
 distinction between after-discovered parol and after-discovered 
 documentary evidence, or between receipts and other material 
 documents, as affording ground for the application of a new trial, 
 it does not at least seem to be supported by the cases cited to sus- 
 tain the text. In the case of Anderson v. Roberts, 18 Johnson, 
 533, the reftisal of equity to interfere is based upon the fact that 
 its aid was sought by means of a bill of discovery ^fec? after the 
 verdict, which, as we have already seen, is inadmissible. Spencer, 
 Chief-Justice, in giving the opinion of the court, says : " After a 
 verdict, a bill of discovery does not lie in support of a fresh action. 
 Thus, where a plaintiff, not being able to prove a letter written 
 by him to the defendant, filed a bill of discovery to clear up the 
 
 'Leading Cases in Equity. Vol. 2, Pt. 2, p. 1380. The authorities cited to 
 sustain the text are WUdey v. McConnell, 63 Illinois, 238 ; Biggins v. Broclcman, 
 lb. 316 ; Gardner et al v. Hardy and Simms, 12 Gill & Johnson, 381. 
 
48 JURISDICTION OF COURTS OF EQUITY. § 11 
 
 matter, the defendant pleaded the verdict, and demurred for want 
 of equity, the plea and demurrer were allowed (Ch. Cases, 65 ; 8 
 Viner, 542). Where money was paid in part for goods sold, and 
 the receipts were lost, and the whole was recovered at law, a bill 
 of discovery was then filed, and Lord Keeper North said : ' You 
 come too late for a discovery after verdict.' But the question un- 
 derwent a very full and solemn examination in this court in Simp- 
 son V. Hart, 14 Johns. R. 63, and in the court of chancery, 1 
 Johns. Chy. 91. It was clearly held in that case, that when courts 
 of law and equity have concurrent jurisdiction over a question, 
 and it receives a decision at law, equity can no more examine it 
 than the court of law, in a sunilar case, can examine a decree in 
 the court of equity." 
 
 In the case of the Countess of Gainsborough i\ Gilford, 2 P. 
 Wms. 424, the syllabus of the case is : " In some cases equity 
 .relieves after a verdict at law, and where the plaintiff in equity 
 might properly have defended himself, as where a receipt from 
 the plaintiff at law is found after the verdict." The Master of 
 the Rolls is reported, in the same case, as saying : " As if the 
 plaintiif at law recovers a debt against the defendant, and the 
 defendant afterwards finds a receipt under the plaintiff's own 
 hand for the very money in question. Here the plaintiff recovered 
 a verdict against conscience, and though the receipt were in the 
 defendant's own custody, yet he not being then apprised of it, 
 seems entitled to the aid of equity, it being against conscience that 
 the plaintiff should be twice paid the same debt ; so if the plain- 
 tiff's own book , appeared to be crossed, and the money paid before 
 the action brought." 
 
 The case of "Gardiner and Bowling v. Hardy aiid Simms, 12 
 Gill & Johnson, 382," was that of an administratrix, the wife of 
 the deceased party, who applied for relief in equity from a judg- 
 ment rendered against her husband's estate on the ground of the 
 discovery of a receipt for the debt after the trial at law ; or as it 
 is stated by the court in deciding that she was entitled to equitable 
 
§ 11 NEW TEIAL8 OF CASES AT LAW. 49 
 
 relief : " It is apparent from the record, that at the time she states 
 her discovery of the receipt to her intestate it was too late, by a 
 motion for a new trial or otherwise, to have made it available at 
 law as a defence to the claim for which judgment had been 
 rendered against her." 
 
 In the case of Vathir v. Zane, 6 Grat. 246, the bill was for 
 relief from a judgment upon a note procured by fraud, and the 
 excuse for coming into equity was, that the written agreement 
 between the maker and the payee of the note, in relation to the 
 contract in pursuance of which the note was made, was lost at the 
 time the judgment was rendered, and without it the defendant 
 could not make his defence at law, and this was held to be a 
 sufficient excuse. We think, then, that the courts make no dis- 
 tinction between after-discovered parol and after-discovered docu- 
 mentary evidence, or between a receipt and any other material 
 document ; but that every case will be determined by its own 
 circumstances, and the main test is the question of laches.^ 
 
 Among the circumstances mentioned by the decided cases as 
 insufficient to sustain the application for equitable relief, are the 
 following : When the trial took place in the absence of com- 
 plainant or his attorney, unless it was shown, not only that he was 
 prevented from appearing by accident, but that there were no laches 
 on his part, at the time or afterwards ; where the case was unde- 
 fended in consequence of the illness or death of the party or his 
 attorney, the presumption being that a continuance would have 
 been granted, or a new trial awarded on a motion to that effect in 
 the original forum ; where it was claimed that an attorney failed 
 to appear because of the miscarriage of a letter ; when the com- 
 plainant was prevented from reaching the court with his witnesses 
 by the 'Swelling of an intervening stream, it not appearing that he 
 could pot have arrived in time to move for a new trial ; when the 
 party was surprised by the false or erroneous statement of his own 
 or the other party's witness, although when application is made 
 
 iSee Post V. Carr, 42 West Va. 73; 24 S. E. E. 585. 
 4 
 
50 JURISDICTION OF COURTS OF EQUITY. § 12 
 
 on this ground the courts favor defendants rather than plaintiffs ; 
 where one goes to trial in the absence of a witness, or in reliance 
 on a witness who is intoxicated, and cannot state the facts clearly 
 or correctly ; where the party, from ignorance or other cause, has 
 mistaken the law, or where he was ignorant of the facts which are 
 set forth in his bill as constituting a defence, unless it is shown 
 that he could not have ascertained the truth in time to lay it before 
 the jury/ 
 
 On the other hand, new trials have been granted where a verdict 
 was obtained by tampering with the witnesses of the opposite party, 
 the fraud not being discovered until it was too late to move for a 
 new trial ; where a valid defence failed through the disqualifica- 
 tion or incompetency of the only witnesses who were acquainted 
 with the transaction, and the facts were not known and could not 
 be brought to light by a bill of discovery ; where evidence was 
 excluded at the second trial that was admitted without objection at 
 the first ; ^ where one was prevented from making a just defence by 
 ignorance of certain facts, when he satisfied the court that he could 
 not have ascertained the truth by enquiry, and that the opposite 
 party knew that his claim was invalid or had been discharged.' 
 
 Interference with Foreign Judgments. 
 
 § 12. What has been said thus far of the interference by courts 
 of equity with judgments obtained and suits pending at law has 
 relation only to proceedings in the courts of the State where 
 equitable relief is sought. 
 
 We propose now to enquire how far the chancery courts of one 
 State or country may interfere to prevent a judgment being 
 rendered in another State ; or if rendered, when, under what 
 circumstances, and to what extent it may be set aside. 
 
 ' Earl of Oxford's Case, American notes; Leading Cases in Equity, Vol. 2, Pt. 
 2, pp. 1380 to 1388. 
 
 ^ Knifong v. Hendricks el als, 2 Grat. 215. 
 
 3 Leading Cases in Equity, Vol. 2, Pt, 2, pp. 1380 to 1388. 
 
§ 12 rNTKRFEBENCE WITH FOEEIGST JtTDGMEXTS. 51 
 
 There are two principles to be kept in mind in this connection : 
 First. That the judgment of a court of record having jurisdiction ^ 
 over a case, and not obtained by fraud, no matter how irregular or 
 how erroneous may have been the proceedings in the suit, nor how 
 apparent all this may be on the face of the record itself, must, 
 until reversed upon a writ of error to an appellate court, be 
 accepted always and everywhere as a final adjudication of the 
 questions between the parties.^ 
 
 Second. The constitutional * provision that full faith and credit 
 shall be given in each State to the public acts, records, and judicial 
 proceedings of every other State. 
 
 Courts of equity do not enjoin oitier <xmi-ts, either foreign or 
 domestic, but the restraining process operates upon the individual 
 suitor. There is no reason, therefore, why, to meet the ends of 
 justice, a court of one country may not enjoin an individual within 
 its jurisdiction, and upon whom its process may be served, from 
 prosecuting his suit in a foreign country or State. The methods 
 mentioned in the decided cases, by which injunctions are made 
 operative in such instances, are : by personal service upon one of 
 several parties who are prosecuting their suit in a foreign country, 
 when only one was within the jurisdiction of the court granting 
 the injunction ; by ser^'ice of an attachment upon the property of 
 
 1 Want of jurisdiction makes the judgment a nullity and it may be so treated by 
 any court in any proceeding, direct or collateral. Wade et als v. Hancock and Agee, 
 76 Va. 620; LaveU and Jordan v. ilcCurdy' s Ex' ore, 77 Va. 772. Ferguson' s Adm'r 
 elalsv. Teeletals, 82 Va. 696; DiUard v. Central Va. Iron Co., 82 Va. 746; Seam- 
 ster etalsv. Blackstock el ok, 83 Va. 234; Antbony et ah r. Kasey et als, Id. 340; 
 Homer v. Doe, 1 Indiana 130, 48 Am. Dec. 3.5-5; note, p. 359; Kenney v. Greer, 
 13 HI. 439, 54 Am. Dec. 439; note, p. 448. A judgment may be partly void be- 
 cause the court in rendering it exceeded its jurisdiction, and yet valid to the extent 
 that it is within the jurisdiction of the court. Ez parte Lange, 18 Wall. 163. See 
 Gresham v. Ewell, 8-5 Va. 8. 
 
 ^ Lancaster -v. Wilson, 27 Grat. 629; Vorhees v. The Bank of the United States, 
 10 Peters' B. 449; EUiott v. Peirsol, 1 Peters' B. 328; 2 Pet. 169; 6 Pet. 729; 
 Harvey v. Tyler, 2 Wall. 328; Slaters. MaxweU, 6 Wall. 268; Cooper v. Beynolds, 
 10 Wallace, 308; Cox et ahv. Thomas' Adm'x, 9 Grat. 323; Ballard v. Thomas and 
 Ammon, 19 Grat. 14; Clines' heirs v. Catron, 22 Grat. 378. 
 
 ' Constitution of the United .States, Article IV, Section 1. 
 
52 jimisDiCTiON or courts of bqijity. § 12 
 
 a foreigner ; by process for contempt ; and by making the dismissal 
 of the foreign proceeding a condition to any decree that may be 
 rendered in the court whose aid is sought.^ 
 
 This right to interfere is regarded as entirely consistent with 
 the constitutional provision that the judgments of each State shall 
 have full faith and credit in every other, ^ which provision was not 
 designed to preclude every defence or allegation that could have 
 been made in the original forum consistent with the doctrines of 
 equity and the common law.^ 
 
 The general rule that justifies interference with a foreign pro- 
 ceeding is, that where the circumstances are such as would make 
 it the duty of the court to restrain a party from instituting or 
 prosecuting proceedings in this country, they will also warrant it 
 in a foreign country.* 
 
 This does not, of course, involve any reference to the rules by 
 which it is determined whether the judgment sought to be set 
 aside was that of a court of competent jurisdiction," or of the 
 defences which may be made to an action upon a foreign judg- 
 ment f for such defences stand just as corresponding pleas do to 
 domestic judgments, and the considerations which induce equity 
 
 ' Leading Cases in Equity, Vol. 2, Pt. 2, p. 1316; Love, &c., v. Baker, 1 Chy. 
 Cas. 67; Whai-ton v. May, 5 Vea. 71; Kennedy v. Earl of CassiUis, 2 Swanst, 313; 
 Harrison v. Gumey, 3 Jac. & Walk. 563; Beckford v. Kemble, &c., 1 Sim. & Stu. 
 7; 1 Cond. Eng. Ch. Eep. 4; Eden on Injunctions, 101; Bushby v. Mundny, <^c., 
 5 Madd. Chy. Kep. 307, Am. ed. 190; High on Injunctions, § 57 to § 61. In a 
 case of fraud, of trust, or of contract, the jm-isdlotion of a court of equity is sus- 
 tainable wherever the persons can be found, although lands not within the jmrisdic- 
 tion of the court may be affected by the decree (Davis v. Morriss' Ex'ors, 76 Va. 
 21 ), but an injunction will not issue against the use of a judgment of another State 
 on the ground that it was obtained by false and fraudulent evidence. Metcalf v. 
 Gilmore, 59 N. H. 417, 47 Am. K. 217. 
 
 ' Judgments of Sister States, Am. & Eng. Encyc. of Law, Vol. 12, p. 148k. 
 
 ' Leading Cases in Equity, Vol. 2, Pt. 2, p, 1398; M' Jilton v. Lowe, 13 Illinois, 
 486; Pearce v. Olney, 20 Conn. 544; Dobson v. Pearce, 12 New York, 156; B'Ogers 
 V. G-wynn, 21 Iowa, 58. 
 
 * Leading Cases in Equity, Vol. 2, Pt. 2, p. 1319; Black v. Smith et al, 13 W. 
 Va. 780. 
 
 6 Galpin v. Page, 18 Wallace, 367. 
 
 *6 Bobinson's Practice, 431; Fisher & Bro. v. March, 26 Grat. 765. 
 
§ 13 WHAT COURT SHOULD GEANT THE INJUNCTION. 53 
 
 to interfere are of the same general character whether the judgment 
 be foreign or domestic.^ 
 
 The weight of authority is clearly to sustain the right of the 
 courts of one State to restrain suitors from judicial proceedings in 
 other States and countries, where process may be had upon their 
 persons or property f but the exercise of this right is generally of 
 at least doubtful policy, and the courts of some States altogether 
 deny it, or limit it to extreme cases. ^ 
 
 It should never be exercised unless it is absolutely essential 
 to the ends of justice, and except where this necessity is apparent, 
 the party asking the interference of a court of equity should be 
 referred to the courts of the country where the proceeding is 
 pending or has been adjudicated. ' 
 
 Whxxt Court should Grant the Injunction. 
 
 § 13. The Code of Virginia provides,* that the institution of 
 this proceeding, where it is by injunction, shall be in a circuit or 
 corporation court of a county or corporation^ in which the judg- 
 ment is rendered, or the act or proceeding is to be done, or is 
 doing, or apprehended, and then further^ gives to the judges of the 
 circuit and corporation courts general jurisdiction in awarding 
 injunctions, whether the judgment or proceeding enjoined be of a 
 superior or inferior court, in or out of their circuits or corpora- 
 tions, or the party against whose proceeding the injunction is asked 
 resides in or out of the same. 
 
 But every order awarding an injunction in such cases must be 
 addressed to the clerk of the court,' whether it be the circuit, 
 
 ^ Story's Equity Jurisprudence, ? 895. 
 
 * Engel V. Scheuerman, 40 Ga. 206; 2 Am. E. 573. 
 
 'Meade v. Merritt, 2 Paige, 402; Bicknell v. Field, 8 Paige, 440; Burgess v. 
 Smith, 2 Barb. Ch. 276; Kitridge v. Emerson, 15 New Hampshire, 227. The 
 Bank of BeUow's FaUs v. The E. & B. EaUroad, 2 Williams, 471. 
 
 * Code, § 3436; Circuit Court in W. Va. ; Code W. Va., Ch. 133, | 4. 
 ^N. & W. E. E. Co. V. Postal Tel. Co., 88 Va. 932. 
 
 ' Code, ^ 3437; Code W. Va., Ch. 133 ? 6. 
 ' Code, ? 3439; Code W. Va., Ch. 133, § 9. 
 
54 JURISDICTION OF COITRTS OF EQUITY. § 13 
 
 county, or corporation court in which the judgment is rendered, 
 or the act or proceeding is to be done, or is doing, or apprehended. 
 
 Independent of the statute, however, it is a general, though not 
 an invariable rule, that a court of equitable jurisdiction will not 
 enjoin a suit in a court of like jurisdiction.^ 
 
 It is said that the principle is nearly, if not quite, the same, 
 where the court has both legal and equitable jurisdiction, and 
 can exercise the powers of a chancellor on one side, and those of a 
 court of common law on the other ; and that where an action has 
 been brought in such a tribunal, and the defendant finds it need- 
 ful to seek relief in equity, he should apply to the judges who 
 have already taken cognizance of the cause in their legal capacity.^ 
 
 This objection arose both from the well-founded repugnance 
 which one court of co-ordinate jurisdiction feels towards inter- 
 fering with, the proceedings of another, and thus producing a con- 
 flict of jurisdiction, frequently accompanied by cross rules for 
 contempt, and out of the jealousy which courts of law have always, 
 more formerly than now, entertained towards any real or apparent 
 infringement of their rights. But the obvious answer to the 
 objection, as founded on the last-mentioned ground, is given by 
 Judge Story, when he says : ^ " A writ of injunction is in no sense 
 a pi'ohibition to those courts in the exercise of their jurisdiction. 
 It is not addressed to those courts. It does not even appear to 
 interfere with them. The process, when its. object is to restrain 
 proceedings at law, is directed only to the parties. It neither 
 assumes any superiority over the court in which those proceedings 
 are had, or denies its jurisdiction. It is granted on the sole ground 
 that, from certain equitable circumstances, of which the court of 
 equity granting the process has cognizance, it is against conscience 
 
 ^ Eicketts v. Johnson, 8 California, 34; Gorham v. Toomey, 9 Id. 77; Deacon v. 
 Smith, 6 Humphrey, 481; 'Leading Cases in Equity, Vol. 2, Pt. 2, p. 1389. 
 
 2L. Cas. in Eq. Vol. 2, Pt. 2, p. 1389; Grant v. Quick, 5 Sanford, 612. 
 
 ' 2 Story's Equity Jurisprudence, § 875. See also Keyser v. Eice, 47 Md. 203; 
 28 Am. E. 448. 
 
§ 13 WHAT COURT SHOULD GRANT THE INJUNCTION. 55 
 
 that the party inhibited should proceed in the cause.' The object, 
 therefore, really is to prevent an unfair use being made of the 
 process of a court of law in order to deprive another party of his 
 just rights, or to subject him to some unjust vexation or injury, 
 which is wholly irremediable by a court of law." 
 
 There can be no doubt, therefore, that the proper practice is for 
 courts of equity to restrain by injunction its suitors on the law 
 side as well as in chancery ; and it has been held in the United 
 States courts that this may be done before the commencement of a 
 suit at law, pending such suit, or after its decision by the highest 
 law tribunal.^ 
 
 The courts of the United States are prohibited by acts of Con- 
 gress from granting an injunction against a suit or judgment in 
 the courts of the several States, and the State courts cannot enjoin 
 the proceedings of a Federal tribunal.' The rule as between these 
 courts, when the matter is one of concurrent jurisdiction, is, that 
 the court first taking cognizance of a case thereby becomes pos- 
 sessed of exclusive jurisdiction, and must retain it to the end.^ 
 Such questions frequently arise in respect to property attached on 
 mesne process, or property seized under execution, and the general 
 rule is that, where there are two or more tribunals competent to 
 issue process to bind the goods of a party, the goods shall be con- 
 sidered as effectually bound by the authority of the process under 
 which they were first attached or seized. '^ 
 
 ^ Without regard to the situation of the subject-matter courts of equity decree 
 in personam according to the equities, and enforce obedience to their decrees by 
 process in personam. Phelps v. McDonald, 99 U. S. B. 308. 
 
 ^Parker v. Judges, &c. 12 AVheat, 561; Dunlap v. Sisson, 4 Mason, 349; Hum- 
 phrey V. Leggett, 9 How. 297; Nixdorff ?;. Smith, 16 Peters, 132. 
 
 'Leading Cases in Equity, Vol. 2, Pt. 2, p. 1390; Destey's Fed. Procedure, | 
 720, p. 110; Eiggs v. Johnson County, 6 Wallace, 166. The United States v. 
 Council of Keokuk; Id. 514; Weber v. Lee County; Id. 210; Duncan v. Darst, 1 
 Howard, 306; Dorr's'Adm'r v. Eohr et als, 82 Va. 370. 
 
 'Eiggs V. Johnson County, 6 Wallace, 166; Chapin v. James, 11 E. I. 86; 23 
 Am. E. 412; Wallace v. McConnell, 13 Peters, 136; Hmes & Hobbs v. Eawson, 40 
 Ga. 356; 2 Am. E. 581. 
 
 ^ Eiggs v. Johnson County, 6 Wallace, 196. 
 
56 JUEISDICTION OF COURTS OF EQUITY. § 14 
 
 Proceedings in bankruptcy constitute an exception' to the 
 general rule ; for under authority of the bankrupt act, the courts 
 of the United States might enjoin proceedings in the State courts 
 which would impair the right or title of the assignee, or interfere 
 with the effectual distribution of the estate among the creditors.^ 
 The rule that gives exclusive jurisdiction to that court, of two 
 concurrent tribunals, in which the suit was first brought, carries 
 with it the right to maintain that jurisdiction by injunction ; and 
 it has consequently been held that, where an action has been 
 brought in a State court, that court has a right to enjoin the same 
 suitor from proceeding in the United States court.^ 
 
 The Conditions v/pon which Equity will Interfere. 
 
 § 14. Upon the general principle that a man should not be 
 allowed to sue both at law and in equity for the same thing, it was 
 formerly held, that upon granting ah injunction to a judgment at 
 law, the court of equity would require a release of errors ; * and 
 when a defendant in a pending action at law applied to equity for 
 relief, he would be first compelled to confess a judgment at law ; 
 and when such requirement was omitted, upon motion to a court 
 of equity it would order the injunction to stand dissolved unless 
 the judgment be confessed.' 
 
 This was, however, merely the general rule, and it was not 
 
 enforced where the case was such that the defendant could not 
 
 consistently, with the rights he claimed, safely confess judgment.^ 
 
 1 High on Injunctions, § 61, § 208 to i 226. The U. S. Circuit Courts may 
 enjoin a State officer from executing a State law in conflict with a statute or the 
 constitution of the U. S. when such execution will violate the rights of the com- 
 plamant. Davis v. Gray, 16 Wall. 203; Osborn v. The Bank of the U. S., 9 
 Wheaton, 738. 
 
 * Leading Cases in Equity, Vol. 2, Pt. 2, p. 1406; Ex parte Christy, 3 Howard, 
 292; ^x parte Poster, 2 Story, 131; Ex parte Eames, Id. 322. 
 
 ' Akerly v. VUas, 15 Wisconsin, 401 ; The Home Insuran|;e Company v. Howell, 
 9 C. E. Green, 238. But see United States v. Keokuk, 6 Wallace, 514. 
 
 * Branch?). Burnley, &c., 1 Call. 153; Ashby d. Kiger, &c., Gilm. 153. 
 
 » Warwick, &c. v. NoveU, 1' Leigh, 96; Anon. 1 Vem. 120; 1 Madd. Chy. 132. 
 ' Warwick etuxet al v. NorveU, 1 Eob. E. 326; Staples v. Turner, Adm'r, et aii, 
 29 Grat. 330. 
 
§ 15 CONDITIONS UPON WHICH EQUITY WILL INTERPEEE. 57 
 
 The rale as it is now regarded is stated by Judge Bouldin, in 
 the case of Great Falls Manufacturing Company v. Henry's Adm'r, 
 25 Grat. 580, as follows : " It is obvious that the equity courts of 
 this State will exercise a wise and just discretion in requiring a 
 confession of judgment at law as a condition of awarding an 
 injunction to legal proceedings, the same in fact which is exercised 
 by the English chancery. They will not require an unconditional 
 confession of judgment at law in any case in which the circum- 
 stances are such as to render the confession unsafe. Should they 
 do so, and should the defendant at law obey the requisition and 
 suffer thereby, it will be error, which should in some way be cor-» 
 rected, either by .the court which committed the blunder, or by 
 the appellate court." ^ 
 
 The Effect of Interference by a Court of Equity. 
 
 § 15. The effect of an injunction to a judgment at law, although 
 in certain cases it may destroy the lien of an execution/ is not to 
 take away the lien of the judgment ; and even if it has been ob- 
 tained by fraud, accident, or surprise, unless it is wholly set aside 
 at the final hearing, it is allowed to stand as a security for what is 
 justly due, whether that be a part or the whole of the debt 
 recovered.* This conclusion rests upon the settled principle, that 
 he who asks equity must himself do equity.* 
 
 Even in the case of a gambling debt, where the bond upon 
 which the judgment was obtained was only in part for a gaming 
 consideration, in spite of the provision of the statute vitiating the 
 whole bond, upon the broad principles of equity, the judgment 
 
 ' See also Thornton v. Thornton, 31 Grat. 212; High on Injunctions, § 52. If 
 a confession of judgment is required, the order should be that the judgment be 
 taken "to be dealt with as the court shall direct." Miller v. Miller, 25 W. Va. 
 495; Kobinson v. Braiden, W. Va. ; 28 S. E. E. 798 ; Pai-sons v. Snider, 42 
 W. Va. 577. 
 
 ' Code, ? 3595; Code W. Va., Ch. 140, ? 13. 
 
 ' Knifong v. Hendricks &c., 2 Grat. 212; Farmers Bank v. Vanmeter, 4 Rand. 
 553; Shaw v. Carpenter, 54 Vt. 155, 41 Am. E. 837. 
 
 * Rust et al v. Ware, 6 Grat. 50. 
 
58 JTJEISDICTION OF COUETS OF EQUITY. § 15 
 
 will not be considered wholly void, but to the extent that it was 
 not upon a ga min g consideration will be allowed to stand.' 
 
 So in a bill filed for relief against an usurious transaction, 
 unless it be a bill for discovery, and except in certain cases pro- 
 vided by statute, the conditions of relief given by a court of equity 
 will be, that the party seeking relief pay the principal and legal 
 interest of the debt, and only take a discharge of the usurious 
 excess.^ 
 
 Though the court may set aside the verdict, it will not for that 
 reason take cognizance of the case, but will, where the defence is 
 ' a legal one, remand it to the law court for a new trial.^ The 
 practice, as gathered from the decided cases,* seams to be, not to 
 reinstate the case at law which has been ended with the judgment 
 complained of, but to direct an issue out of chancery (if one be 
 proper), to be tried on the law side of the court, and then to enter 
 a decree in accordance with the finding of the jury, and contin- 
 uing the injunction until the final hearing. 
 
 When in advance of a judgment a bill of discovery is filed in 
 aid of the defence at law, upon the coming in of the answer the 
 suit in equity is discontinued, and the trial of the cause proceeds 
 at law. But when the appKcation is after the judgment at law, 
 if the equity jurisdiction properly attaches for the discovery, which 
 can only be where the party seeking relief shows some satisfactory 
 excuse for his failure to apply for the discovery during the pendency 
 of the action at law, the court of equity proceeds to determine the 
 whole matter in controversy.* 
 
 ' Skipwith V. Strother, &c., 3 Band. 214. 
 
 ^ Brockenbrough' s Ei'ors v. Spindle's Adm'r, 17 Grat. 27. 
 
 ' Leading Cases in Equity, Vol. 2, Pt. 2, p. 1380; Howe v. Martell, 28 Illinois' 
 445; Propst v. Meadows, 13 Illiaois, 160. 
 
 * Coville & Garber v. GUman, 13 W. Va. 314; Knifong v. Hendricks et als, 2 
 Grat. 215; Wynne v. Newman's Adm'r, 75 Va. E. 811. When fraud is charged 
 equity will not take jurisdiction if relief may be had at law. Green, Trustee, v. 
 Spaulding, &c., 76 Va. 411; Haney v. Fox, 5 Leigh, 444; Minor's Inst., Vol. IV, 
 Part 1, p. 914 and cases cited. 
 
 » Green & Sutfle v. Massie, 21 Grat. 361. 
 
§ 15 THE EFFECT OF INTEEFEEENCE BY EQUITY. 59 
 
 The rule that equity will' take jurisdiction unless there is a 
 ftill, complete, and adequate remedy at law,' holds good in these 
 cases as in all others, and unless it appears that the remedy at law 
 is sufficient, the courts of equity retain the cause and finally dispose 
 of the whole matter in controversy. 
 
 In the case of Billups v. Sears et als, 5 Grat. 37, the action was 
 brought by a trustee on an indemnifying bond, for the benefit of 
 certain creditors who claimed a lien prior to an execution, the levy 
 of which had been indemnified. The execution creditor claimed 
 that the deed was fraudulent so fal- as it undertook to secure debts 
 to certain of the parties named therein ; but there was no proof 
 nor allegation of fraud as to another party whose debt was secured 
 in the same deed. Under these circumstances the court was of 
 opinion, that to grant a new trial would not be to extend the 
 proper relief, inasmuch as the defence founded on the alleged 
 fraud in the deed of trust might be successfully met or greatly 
 embarrassed by the objection that the plaintiff ought not to be 
 wholly defeated of his action unless the deed was void in toto ; 
 and that it would be improper so to pronounce a conveyance 
 made in part for the indemnity of a fair and bona fide creditor, 
 having no notice of any dishonest purpose on the part of the 
 grantor. Since, therefore, the execution creditor had a right to 
 call for an account of the trust-subject, the court of equity retained 
 jurisdiction and disposed of the whole case. 
 
 Where the subject of the action at law was a matter of account 
 of a complicated character, the court of equity enjoined the judg- 
 ment, referred the account to a commissioner, and itself gave the 
 proper relief.^ 
 
 The right of a court of equity to retain jurisdiction in the 
 cases we have mentioned, rests also upon the established rule that 
 a court which obtains equitable jurisdiction for one purpose may 
 
 ' See New York Guaranty Co. v. Memphis Water Co., 107 U. S. B. 205. 
 ' Bust et al v. Ware, 6 Grat. 50. 
 
60 JUEISDICTION OF COURTS OP EQUITY. § 16 
 
 exercise it for all ; ^ but, as we have seen, this principle will not 
 permit the court to dispose of the case exclusively on its chancery 
 side, when the only ground for relief in equity is that it is too 
 late to make the application to the law court. 
 
 Conffwrrent Jurisdiction vnth Law Courts. 
 
 § 16. There are some subjects over which the courts of law 
 and of equity have concurrent jurisdiction, and about these there 
 is no conflict with the maxim, that equity never takes jurisdiction 
 where there is a remedy at law ; for it is well settled that the 
 incorporation of equitable principles with the common law, and 
 the consequent extension of legal rights and remedies, do not cir- 
 cumscribe the authority of a chancellor, or preclude him from 
 exercisuig any of the powers that have belonged immemorially to 
 his office.^ 
 
 This extension of legal rights has occurred from the disposition 
 of the law courts in modern times to interfere and grant relief 
 under circumstances in which, in earlier periods, resort to courts 
 of equity would have been necessary ; and by the action of legis- 
 latures establishing by statute cheaper and quicker modes of dis- 
 posing of questions over which the chancery courts had previously 
 sole jurisdiction. 
 
 In the first case, as has been stated, the jurisdiction of the 
 courts of equity is neither overturned nor impaired ; for the law, 
 by taking cognizance of a case, cannot thereby oust the jurisdic- 
 tion inherent in equity ; ^ and where the extension is by statute, 
 
 1 Leading Cases in Equity, Vol. 2, Part 2, p. 1347, 1359; Crenshaw v. Seigfried, 
 24 Grat. 272; 4 W. Va. 600; Mitchell, Sheriff, v. Chandler et al, 14 W. Va. 22; 
 Hickman v. Painter, 11 W. Va. 386; Ward v. Todd, 103 U. S. E. 327; Walters v. 
 Farmers Bank, 76 Va. 12; Beeeher v. Lewis & Bagby, Trustees, 84 Va. 630; 
 Hotchkiss V. Fitzgerald Patent &c. Co., 41 W. Va. 357; 23 S. E. R. 576; Robin- 
 son u Braiden, W. Va.; 28 S. E. R. 798. 
 
 ^ Ante, I 10; Leading Cases in Equity, Vol. 2, Part 2, p. 1318; Varet v. The 
 New York Insurance Co., 7 Paige, 560; The Wesley Church v. Moore, 14 Barr. 273. 
 
 'Wayland v. Tucker, 4 Grat. 269; Mitf. PI. Eq. 113; Atkinson v. Leonard, 3 
 Bro. Chy. R. 218; Ex parte Greenway, 6 Ves. 812; Bromley v. Holland, 7 Ves. 
 19; L. Cases in Equity, Vol. 2, Pt. 2, p. 1358; East India Company v. BodhamJ 9 
 
§ 16 CONCOEEENT JURISDICTION WITH LAW COtTETS. 61 
 
 unless it uses prohibitory or restrictive words, the uniform interpre- 
 tation is that it confers concurrent and not exclusive remedial 
 authority/ 
 
 It has been held, therefore, that the enactment of a statute 
 permitting a party to interplead in a suit at law does not take 
 away the jurisdiction which courts of chancery have always had 
 over bills of interpleader.^ 
 
 Among cases of concurrent jurisdiction may be mentioned those 
 where the disputed subjects are partly of a legal and partly of an 
 equitable nature ; where there is both actual and constructive 
 fraud ; ^ where the element of trust exists ; * and where numerous 
 suits involving the same question of law or fact are brought by 
 one or by different persons, and the controversy cannot be 
 determined finally at law, or without serious delay and expense.* 
 
 There can be no conflict between the two forums, however, for 
 the rule is, that if a party has made his election to proceed in one 
 court, the other court cannot interfere." 
 
 It has therefore been held, where a defendant at law exhibited 
 his bill of injunction, that although on a specific agreement either 
 party has a right to resort to equity to compel a specific perform- 
 
 Ves. 466; Walmesly v. Child, 1 Ves. 341; Kemp v. Pryor, 7 Ves. 248; King v. 
 Baldwin, 17 John. E. 348; Post v. Kimberlay, 9 John. Pi.. 470; Mayne v. Griswold, 
 3 Sandf. S. C. E. 463 ; Story" s Equity Jurisprudence, I 80 ; FUler v. Tyler, 91 Va. 458. 
 
 1 Case V. Pishbaok, 10 B. Monroe, 40; Story's Eq. Juris., ^ 80; Filler v. Tyler, 
 91 Va. 458. 
 
 ^Adams' Equity, I 203; Lozier's Ex' or v. Van Saun's Adm'rs, 2 Green's Chy. 
 325; Eep. of Eevisors, 764, Note. A bUl of interpleader wUl not lie if the com- 
 plainant sets up an interest in the subject-matter of the suit and the relief sought 
 relates to that interest, nor can it be maintained unless the relief sought is equitable 
 relief. KiUian v. Ebbinghaus, 110 U. S. E. 568. 
 
 ^Jamison v. BeauHen, 3 Scammon 113, 36 Am. Dec. 534, Note p. 535; Brewer 
 V. Harris et al, 2 Smedes and Marshall 84, 41 Am. Dec. 587. 
 
 * Oelrichs v. Spain, 15 Wallace, 211. 
 
 * Huntington v. NicoU, 3 Johnson, 566; Livingston v. Livingston, 6 John's 
 Chy. 497; McHenry v. Eowland, 45 N.'Y. 580.' 
 
 ^Goolsby, &c., V. St. John, 25 Grat. 153; Penn et als v. Eeynolds, 23 Grat. 523; 
 White i). Washington's Ex' ors, 5 Grat. 647; Tarply's Adm'rii. Dobyns, 1 Wash. 
 185. 
 
62 JtTEISDICTION OF COURTS OP EQUITY. § 16 
 
 ance, yet if one of them elects to sue for damages for an alleged 
 breach, of the covenant, the other party has no right to carry him 
 into equity to compel him to abandon his common law remedy, 
 and to hold him to his remedy for specific performance.' 
 
 The same conclusion was reached by the court where an 
 execution creditor, having indemnified the sheriff and received 
 the amount of his judgment from the proceeds of the sale of the 
 property levied on, pending an action against him on the indem- 
 nifying bond by a trustee who claimed the property by virtue of 
 a conveyance to him, filed his bill in equity to set aside the con- 
 veyance as fraudulent. For, said the court, if the execution cred- 
 itor had not elected to indemnify the sheriff he might have filed 
 his bill in equity, but having elected to indemnify, and having 
 received satisfaction of his judgment, there was no further neces- 
 sity or propriety in his being an actor in the transaction, for the 
 court of law could enable him to make a complete defence in the 
 action brought against him on the indemnifying bond.^ 
 
 In the case of Haden v. Garden, 7 Leigh, 157, it was held, that 
 although courts of equity and courts of law have concurrent juris- 
 diction in cases of fraud, yet if a suit be first brought in a court 
 of law in which the questions of fraud may be tried and de- 
 termined, the party injured by the fraud must make his defence 
 there; and if he neglects to do so, the court of equity has no 
 jurisdiction to relieve him. The relation of suretyship, of which 
 formerly the courts of chancery had exclusive jurisdiction, it is 
 contended, forms an exception to the general rule requiring an 
 election between the forums, and the weight of authority is said ^ 
 to be that a surety may come before a chancellor for relief after 
 an action has been brought against him at law, and although the 
 case has passed into judgment.* 
 
 1 Long V. Colston, 1 H. & M. 110. ' Harvey v. Fox, 5 Leigh' 449. 
 
 'Leading Cases in Equity, Vol. 2, Pt. 2, p. 1359. 
 
 * Eathbone ?). Warren, 10 Johnson, 387; King v. Baldwin, 2 Johnson's Chy. 
 554; Montague v. Mitchell, 28 lUmois, 486; Smith v. Hays, 2 Jones' Eq. 321; 
 Miller v. Gaskins, 1 Smedes & Marshall, 524; Viele v. Hoag, 24 Vermont, 46. 
 
§ 16 CONCUEKENT JUEISDICTION WITH LAW COUETS. 63 
 
 An examination of the cases cited does not sustain this con- 
 clusion, for connected with most of them were circumstances that 
 rendered the remedy at law not clear or assured/ or in which 
 equity took jurisdiction for some reason other than that which 
 made the case common to both forums;'' or where there was a 
 set-off of an equitable nature ; ^ or where a creditor, who had 
 given time to the principal debtor, obtained a judgment against 
 the surety, but the agreement for forbearance was not discovered 
 until it was too late to set it up.* Some authorities, nevertheless, 
 clearly hold to the doctrine that where the defence is equitable, 
 chancery will take jurisdiction in spite of the opportunity offered 
 to plead the matter at law ; ° and this is of course true to the 
 extent to which the matter has been previously discussed,* where 
 the suit is on a gaming or usurious contract/ It has been de- 
 clared to be the better opinion,* that when an equitable defence is 
 made and overruled at law, the adjudication shall not be final if 
 the ruling appears to have been passed on a plain misconception 
 of the doctrine of equity jurisprudence, or where the court dis- 
 missed the question as lying beyond their province, and requiring 
 the intervention of a chancellor. However this may be, there can 
 be no doubt of the proposition laid down by the same author, and 
 sustained by ample authority, that a defence which is purely equita- 
 ble, and could not be considered in a legal forum, may be a good ex- 
 cuse for an injunction, although it was made and overruled at law.' 
 
 ^ Bathbone v. Warren, 10 Johnson, 387. 
 
 2 1 Madd. Chy. 23; Atkinson v. Leonard, 1 Bro. Chy. E. 218. 
 
 » Bellow V. MuheD, 4 Atkyns, 126. 
 
 * Armistead v. Ward, 2 Patton & Heath, 327. 
 
 * Hestonville Co. v. Shields, 3 Brewster, 257; Bromley ti. Holland, 7 Vesey, 319; 
 Harrington v. DuChatel, 1 Brown C. C. 124. -Ante, U 7, 10. 
 
 'Gough V. Pratt, 9 Md. 526; Panning v. Dunham, 5 Johnson Chy. 122; Lucas 
 V. Waul, 12 Smedes & Marshall, 157; West v. Beanes, 3 Harris & Johnson, 568; 
 White V. Washington, 5 Grat. 645; Day v. Cummings, 19 Vermont, 496. 
 
 8 Leading Cases in Equity, Vol. 2, Pt. 2, p. 1363. 
 
 ' The Bank of Bellows Falls v. The Bailroad, 2 Williams, 470; Nelson v. Dunn, 
 15 Alabama, 501; Whites. Washington's Ex' or, 5 Grat. 648; Power v. Eeeder, 
 9 Dana. 6; The State Bank v. Bozeman, 8 English, 631; Newton i;. Field, 16 
 Arkansas, 216. 
 
64 JURISDICTION OF COUETS OF EQUITY. § 16 
 
 Where the right to make an equitable defence is granted by 
 statute the rule is, that equity will not interfere with the proceed- 
 ing at law/ unless indeed it appears that the legislature did not 
 intend, by the enactment of the statute, to make it an exclusive 
 substitute for the proceeding in equity.^ 
 
 The statute of Virginia,' providing for equitable defences at 
 law, adds, that " if a defendant entitled to such plea as is men- 
 tioned in the preceding section shall not tender it, or though lie 
 tender it, if it be rejected for not being offered in due time, he 
 shall not be precluded from such relief as he would have been 
 entitled to if the preceding section had not been enacted. If, 
 when issue in fact is joined thereon, such issue be found ag£Cinst 
 the defendant, he shall be barred of relief in equity upon the 
 matters alleged in the plea, unless upon such ground as would 
 entitle a party to relief against a judgment in other cases." 
 
 Assigned bonds and notes afford also matter of concurrent 
 jurisdiction. Except in the case of negotiable paper, an assign- 
 ment of a bond or note transfers, not the legal title, but only an 
 equitable right to the debt ; and the statute,^ which permits an 
 assignee to maintain his action in his own name upon the assigned 
 instrument, only grants the privilege of asserting the equitable 
 right in a legal forum. But of this the courts of equity had 
 already jurisdiction, and as we have seen they will not give it up 
 because the statute provides a remedy at law.^ By statute' in 
 Virginia, however, the jurisdiction of equity is expressly excluded, 
 unless it appears that the assignee had not an adequate remedy at 
 law. 
 
 Where an action at law and a suit in equity are pending at the 
 
 ^Winfield v. Baron, 24 Barb. 254; Savage v. Allen, 59 Id. 591; Wolcott v. 
 Jones, 4 Allen, 367; Glenn v. Fowler, 8 Gill & Johnson, 340. 
 
 ' Bromeley J). Holland, 7 Vesey, 19-21; Babcockti. McCommant, 55 Illinois, 214. 
 'Code, 5 3300 ; Code W. Va., Ch. 126, § 5. Ante, p. 39, note. 
 
 * Code, i 2860; Code W. Va., Ch. 99, § 14. 
 
 * Winn V. Bowlers, 6 Munf. 23; Mosely v. Boush, 4Kand. 392; Colvin v. Emer- 
 son, 10 Leigh, 663; 2 Minor's Institutes, 760. 
 
 «Code, ? 2862; Code W. Va., Ch. 99, ? 16. 
 
§ 17 WHAT IS SUCH A REMEDY AT LAW. 65 
 
 same time, about the same matter of concurrent jurisdiction, it is 
 not competent for the defendant in the action at law to set up this 
 fact as a defence hj plea either in abatement, or in bar, but the 
 objection must be made by a rule in the chancery suit, to put the 
 plaintiff to his election between the two suits.' 
 
 What is such a Remedy at Law as will prevent Jurisdiction in 
 Equity, and when the Objection to Jurisdiction should be 
 made. 
 
 § 17. The well settled general rule that equity has no jurisdic- 
 tion where there is a plain adequate and complete remedy at law,^ 
 does not of itself afford a sufficient test of the jurisdiction ; for it 
 is also true that a doubtful or partial remedy at law does not 
 exclude an injured party from relief in equity,' and hence a just 
 discrimination becomes frequently a subject of doubt and perplexity. 
 
 So various are the remedies furnished by the courts of law, 
 that no general rule can be laid down by which it may be de- 
 termined of any class of cases that one or the other of these 
 remedies will not afford sufficifent relief; hence the application of 
 the principle to a particular case must depend altogether upon 
 the character of the case as disclosed in the pleadings.^ 
 
 All that we can do is to glean from the decided cases instances 
 that may serve as precedents. 
 
 Thus it has been held, that the action of trespass does not afford 
 adequate redress to a bank whose funds are annually and unlaw- 
 fully abstracted, by the forcible collection of a tax assessed under 
 
 . ' Williamson, Trustee, v. Paxton, Trustee, 18 Grat. 504; Leading Cases in Equity, 
 Vol. 2, Pt. 2, p. 1319. 
 
 ^Goolsby, &c., V. St. John, 25 Grat. 152; Neff j). Baker & Triplett, 82 Va. 401. 
 
 ' Hipp et alv. Babin et al, 19 Howard, 278; Abbot' s Practice, Vol. 2, p. 90; Coff- 
 man». Sangstone< ah, 21 Grat. 269; Boyce'sEx'orsi). Grundy, SPeters, 210; Payne 
 V. Hook, 7 Wallace, 430; Wampler v. Wampler, 30 Grat. 454; Martin's Ex'x v. 
 Lewis' Ex' or. Id. 678; Pranks v. Cravens et ah, 6 W. Va. 185; Vance v. Snyders 
 et ah, 6 W. Va. 24. Eeferring a cause to arbitration waives the jurisdiction of a 
 court of equity. Strong jj. WUley, 104 U. S. B. 512; Nease v. Insurance Company, 
 32 W. Va. 286. • 
 
 * Watson V. Sutherland, 5 Wallace, 79, 
 
 5 
 
66 JURISDICTION OF COUETS OF EQUITY. § 17 
 
 an unconstitutional law, so as to prevent a court of equity from 
 enjoining such collection.' So the fact that a plaintiff may have 
 a right to recover on contracts of warranty in a deed, is not such 
 an adequate remedy at law as will bar a suit in equity to enjoin a 
 third party from prosecuting an ejectment.^ Again, it is said that 
 the principle upon which courts of equity take jurisdiction in 
 patent cases, and upon which injunctions are granted to patentees, 
 is not that there is no remedy at law in favor of those whose 
 property is invaded, but that it is inadequate ; for if each infringe- 
 ment of the patent were to be made a distinct cause of action, the 
 remedy would be worse than the evil. Moreover, the inventor 
 can have no direct preventive remedy at law,^ while equity can 
 restrain a future violation of a right, as well as require an account 
 for a past one ; and such remedy is often better than damages, 
 which alone can be had at law.* To these instances of equity 
 jurisdiction we add the foUoAving : " 
 
 Where it was doubtful whether there was or was not a remedy 
 at law.^ In a suit against a guardian for an account, notwith- 
 standing the guardian may have given security by bond, and may 
 be liable to an action at law.^ In order to treat a person who 
 enters upon an infant's estate, with notice of his title, as guardian 
 or bailiff, and to exact an account of the profits for the whole 
 period of his occupancy.* Where a contract to build was in the 
 possessioii of a defendant who refused to deliver it up so as to 
 enable the plaintiff to draw his declaration.' To call in redeemed 
 
 ' Abbott's U. S. Practice, Vol. 2, p. 90; Woolsey v. Dodge, 6 McLean, 142. 
 But see Post, § 135, Div. 8. 
 
 '' Segee v. Thomas, 2 Blatchf. 11. 
 
 ^ Motte V. Bennette, 2 Fish. 642. 
 
 * Pierpont v. Fowle, 2 Woodb. & M. 23. 
 
 ^ See the cases collected on p. 692 et seq. , Vol. 6 Am. & Eng. Encyc. of Law. 
 
 ° Spotswood V. Higginbotham, 6 Munford, 313. 
 
 'Davis' Adm'rt). Davis, 1 Del. Chy. Eep. 256. 
 
 8 Blomfield v. Eyre, 8 Beav. 250; Van Epps v. Van Deusen, 4 Paige, 64; Adams' 
 Equity, § 229. 
 
 ' Sturtevant v. Goode, 5 Leigh, 83. 
 
§ 17 WHAT IS SUCH A REMEDY AT LAW. 67 
 
 share-holders, and to wind up a building association.' To quiet a 
 title.^ "Where one of four joint obligors becomes the administra- 
 tor of the obligee.^ To set aside a deed for land wrongfully con-, 
 veyed to a purchaser at a tax sale.* Where there are mutual 
 accounts and a discovery is sought.^ Where there is an agency of 
 a fiduciary character, involving trust and confidence, and making 
 it necessary to keep accounts and preserve vouchers ; and this even 
 though the demands were not on both sides, and there was no 
 charge of fraud or misrepresentation." Where, in order to dis- 
 cover the true state of an account between a principal and an 
 agent, an appeal to the conscience of the agent and an examina- 
 tion of his books and vouchers was necessary.^ Where time, 
 expense, and a multiplicity of suits would be saved.* Where, 
 if the action were at law, the party would be estopped from 
 recovery by his deed acknowledging receipt of the money.' To 
 set aside a fraudulent deed without first obtaining a judgment or 
 decree ; or if one had been obtained, without first issuing isxecu- 
 
 1 Edelin et ah v. Pascoe et als, 22 Grat. 826. 
 
 ^ Morris ti. Coleman, &c., 1 Bob. B. 505. Where land was sold under decree 
 in a chancery suit it was held that one claiming a part of the land might proceed 
 by petition or by independent suit, and was not driven to an action at law. Norfolk 
 Trust Co. V. Foster, 78 Va. 413. 
 
 ' Bodes' Adm'r v. Bodes et als, 24 Grat. 256. 
 
 *CarroU v. Brown, 28 Grat. 791. 
 
 ^McMartin v. Bingham, 27 Iowa, 234; 1 Am. B. 265; Sanborn v. Kittredge, 20 
 Vt. 632, 50 Am. Dec. 58; Garland d. Hull, 13Smedes & Marshall 76, 51 Am. Dec. 
 140, note, p. 142; Tillari). Cook et als, 77 Va. 477; Fennel. als v. Ingles, 82 Va. 71; 
 Goddin v. Bland & Bro., 87 Va. 708. 
 
 ^ Mackenzie n. Johnston et al, 4 Madd. B. 373 ; Hemings n. Pugh, 9 Jurist 
 N. S. 1124; Zetelle v. Myers et als, 19 Grat. 68; Thornton v. Thornton, 31 Grat. 
 212; Makepeace v. Bogers, 11 Jurist N. S. 215; Dabbs v. Nugent, 11 Jurist N. S. 
 943; Coffinan v. Sangston, 21 Grat. 263; VUwig v. B. & O. E. B. Co., 79 Va. 449. 
 See, also. Am. & Eng. Encyc. of Law, Vol. 6, p. 720. 
 
 ' Segar et als v. Parrish et al, 20 Grat. 680. See, also, Hartsook v. Staton, Special 
 Ct. of Appeals, Va. Law Journal, 1879, p. 183. 
 
 « Oelrichs v. Spain, 15 Wallace, 211; Bader et al v. Neal et al, 13 W. Va. 373. 
 
 » Eadcliff ». High, 2 Bob. E. 284. See, also, Johnson v. B. L. & L Co., 82 Va. 
 284; Sturtevg,nt v, Gpode, 5 Leigh 53; Moore v. Lipscorobe, 82 Va. 546, 
 
68 JUEISDICnON OF COURTS OF EQUITY. § 17 
 
 tion thereon/ To assert the right to subrogation in favor of a 
 party bound upon one instrument^ and who has paid the debt, 
 against parties bound for the same debt upon another instrument.^ 
 To enforce contribution between sureties.^ To recover the amount 
 of a lost negotiable note.^ To obtain an account of a trust sub- 
 ject.'' To recover money from a trustee, due from him in that 
 character.* To restraiQ a party from committiag a trespass on 
 land, such as taking ore therefrom, where adequate satisfaction in 
 the ordinary course of law cannot be obtained.^ To compel the 
 delivery of a specific legacy by an executor f and although it has 
 sometimes been considered that the action must be at law if the 
 executor has assented to the legacy, yet the better opinion seems to 
 be that, although the assent may give the right of action at law, 
 that fact -^vill not take away the jurisdiction of courts of chancery, 
 and a suit in equity will lie whether assent has been given or not.' 
 The court of chancery took jurisdiction of a suit by a high 
 sheriff against his deputy and his sureties, to have a settlement 
 of the accounts of several administrations upon estates committed 
 to the high sheriff, and which went into the hands of the deputy ; 
 and in this case it did not appear that the high shieriff had paid 
 
 1 Code, I 3460, as amended by act of March 2, 1894; Acts 1893-4, p. 614; Code 
 W. Ya., Ch. 133, ? 2; Russell v. Eandolph, 26 Grat. 705; Watkins v. Wortman, 19 
 W. Va. 78. 
 
 ' Chrisihan's Ex'x v. Harman, 29 Grat. 494. 
 
 ^ Wayland v. Tucker et ah, 4 Grat. 269; Hamsberger el ah v. Yancey, 33 Grat. 
 527. 
 
 * Moses V. Trice, 21 Grat. 556. 
 
 ^ Billups V. Sears et ah, 5 Grat. 37; Vance v. Kirk's Adm'r, 1 S. E. E. 717. 
 
 « Pardee r. Price, 16 Mees. & Welby K. 457. 
 
 'MitcheU v. Dors, 6 Yes. E. 147; Hanson v. Gardner, 7 Yes. E. 305; Thomas 
 V. Oakley, 18 Yes. K. 184; 3 Dan. Chy. Pr. 1852-'3; Stevens v. Beekman, 1 John's 
 Chy. E. 318; Jerome !•. Boss, 7 John's Chy. E. 315; Smith v. PettingiU, Verm. 
 E. 84; Anderson v. Harvey's Heirs, 10 Grat. 398; Burwell v. Hobson, 12 Grat. 322. 
 
 * Xelson V. ComweU, 11 Grat. 724. The assent of the executor to the legacy 
 is essential before the legatee's title can be complete and perfect. Crist v. Crist, 1 
 Indiana 570, 50 Am. Dec. 481; note, p. 485. 
 
 'Nelson v. Comwell, 11 Grat. 724; 1 Story's Eq. Jurisprudence, ? 591, 592, 
 593; 2 Eoper on Legacies, 1798; Decks v. Strutt, 5 T. E. 690; Kayser, Ex' or, v. 
 Disher, 9 Leigh, 357; 2 Lomax on Ex'ors, 132. 
 
§ 17 WHAT IS SUCH A REMEDY AT LAW. 69 
 
 the balances due on the settled accounts, or any of them.^ So 
 jurisdiction has been taken in cases of sales and purchases of 
 equitable rights in land ; ^ to set aside a patent obtained with 
 knowledge of a prior entry ; ^ to protect future rights, as those of 
 a remainderman, from waste, although the court will not decree 
 in thesi as to the future rights of parties not before the court or 
 in esse ; ^ to grant relief between principal and surety ; ^ to relieve 
 against an, unconscionable bargain ; '' to enjoin the collection of 
 purchase-money on the groimd of a deficiency in the quantity of 
 land ; ' but equity will not interfere where one person claims the 
 balance of the purchase-money, and another is liable on his cov- 
 enant of warranty of the title.^ 
 
 On the other hand, equity has refused to interfere under the 
 following circiunstances, and has left the applicant to his remedy 
 at law : 
 
 ^Yhere a creditor of an estate sued in chancery upon an account 
 for carpenter's work done by the plaintiff.^ ^\1iere the suit is 
 brought to settle the title or bounds of land between adverse 
 claimants, unless the plaintiff has an equity against the defendant 
 claiming adversely to him ; for an equity against other persons 
 will not give jurisdiction to the chancery court.'" 
 
 The coiu-ts of chancery will not interfere to restrain one joint 
 
 devisee of land from entering thereon at the suit of a tenant 
 
 claiming under the other de^'isees ;" to repeal a patent more than 
 
 1 Tyler v. Nelson, 14 Grat. 214. 
 
 - Allen «. Smith, 1 Leigh, 231; Kuflhers v. Lewis' EVor, 7 Leigh, 720; Wag- 
 goner V. Dyer, 11 Leigh, 384. 
 
 * Hagan v. Wardens, 3 Grat. 315. 
 
 * Cross V. De Yalle, 1 Wallace, 5. 
 ^ Baxter v. Moore, 5 Leigh, 219. 
 "Hyde v. Nick, 5 Leigh, 336. 
 
 ' Koger et ah v. Kane's Administrator, &c., 5 Leigh, 606. 
 
 * Long's Ex" or et als i: Israel et al, 9 Leigh, 565. 
 "Bacheldor v. Elliott's Adm'r et alt, 1 H. & M. 10. 
 
 '" Stuarf s Heirs, c^c. v. Coalter, 4 Band. 74; Lange v. Jones, 5 Leigh, 192. Must 
 be some peculiar equity to give jurisdiction on this ground. Collins v. Sutton, 94 
 Ya. (26 S. E. E. 415). 
 
 " Baldwin v. Darst, 3 Grat. 132. 
 
70 JURISDICTION OF COUETS OF EQUITY. § 17 
 
 ten years after it was issued ;' to enable a trustee or cestui que 
 triLst to recover property conveyed in a deed of trust, from one 
 who has purchased it at a sale under an execution f to try a 
 question of title to or boundaries of land f or to enforce against 
 the justices of a court the liability imposed by a statute upon 
 them for omitting to take or taking an insufficient security upon a 
 guardian's bond/ 
 
 These, among many other cases, are examples for a'nd against 
 the exercise of equitable jurisdiction ; but it must be remembered, 
 as was said before, that no exact general rule can be laid down, 
 and the test must be applied in each separate application for relief. 
 But the rule that shuts the court of equity against a party who 
 has a clear legal remedy, applies only to cases in which such 
 remedy may be had against the same person as to whom equitable 
 relief is sought, and not against a different person.^ 
 
 It should be further borne in mind, that some of the cases 
 referred to are subjects of concurrent jurisdiction, and in all such 
 a party may elect between his legal and equitable remedies ; but 
 having once made his election he is bound by it." 
 
 It is a good general rule that an objection to the jurisdiction of 
 a court should be made at the earliest opportunity ; ' but if the 
 objection is apparent on the record, it may be taken advantage of 
 at any stage of the proceedings,* even at the hearing or on appeal.^ 
 
 > Goodwin v. McCluer, 3 Grat. 291. 
 
 2 Sheppards v. Turpin, 3 Grat. 373. 
 
 ^ Carrington et al v. Otis et at, 4 Grat. 235; Speer v. Crawter, 2 Meriv. B. 410; 
 Allen V. Deschamps, 13 Ves. 224; Steed v. Baker et al, 13 Grat. 380. 
 
 * Austin, &c. V. Richardson et ah, 1 Grat. 316. 
 
 ^Jackson's Adm'x, &c. v. Turner, 5 Leigh, 125. 
 
 ''Goolsby, &c. V. St. John, 25 Grat. 153; Zetelle v. Myers el al, 19 Grat. 62. 
 
 ■ Ludlows V. Simond, 2 Caine's Cases in Error, 40. 
 
 ^Martyn v. Com. 1 Mass. E. 347; Lawrence v. Smith, 5 Mass. E. 362; State v. 
 Turner, Wright's E. 21 ; Humphrey v. State, Minor's E. 64; Capron v. Van 
 Noorden, 2 Cranch's E. 126; Killand ". Capriers, 2 Call. E. 368; Sullivan v. 
 Portland E. E. Co., 94 U. S. E. 811. 
 
 'Thompson I). Eailroad Companies, 6 Wallace, 137; Penn v. Lord Baltimore, 
 1 Vesey, 446. See Van Dom v. Le^vis Co., 38 W. Va. 267. 
 
§ 17 WHAT is SUCH A REMEDY AT LAW. 7l 
 
 In Virginia it is provided by statute,^ that when the declaration 
 or bill shows on its face proper matter for the jurisdiction of the 
 court, no exception for want of such jurisdiction shall be allowed, 
 unless it be taken by plea in abatement, and the plea shall not be 
 received after the defendant has demurred, pleaded in bar, or 
 answered the declaration or bill, nor after a rule to plead, or a 
 conditional judgment or decree nisi. 
 
 In construing this statute it has been held,^ that it applies 
 where the objection is for mere matter of abatement, as where 
 the case is a proper one for a court of equity, but not for the 
 particular court in which the suit is brought ; or where the suit 
 ought to be abated by reason of some circumstance attending the 
 situation of the plaintiif or defendant, or the like. 
 
 But the statute does not apply where the objection, instead of 
 merely tending to direct the proceedings to some other equitable 
 jurisdiction, or to suspend them, or to abate the particular suit, is 
 absolutely a bar of the claim to the interposition of a court of 
 equity, and impugns the right to sue in that court altogether. 
 Accordingly, when the case appears on the face of the bill to be 
 proper for the cognizance of a court of law only, and not of any 
 court of equity, the statute has been held not to apply .^ 
 
 And when the bill alleges proper matter for the jurisdiction of 
 a court of equity (so that a demurrer will not lie), if it appears 
 on the hearing that the allegations are false, and that such matter 
 does not in fact exist, the result must be the same as if it had not 
 been alleged, and the bill should be dismissed for want of juris- 
 diction.* So a bill, in form for discovery, was dismissed at the 
 hearing, although no objection to the jurisdiction was made in 
 
 'Code, ? 3260; CodeW. V., Ch. 125, ? 16; Poindexter ». BurweU, 82 Va. 507. 
 
 ^ Jones V. Bradshaw et ah, 16 Grat. 361. 
 
 'PoUard(). Patterson's Adm'r, 3 H. & M. 67; Hudson v. Kline, 9 Grat. 379; 
 Beckley v. Palmer, 11 Grat. 625. 
 
 * And this although no objection has been made in the pleadings (Salamone v. 
 Keily et ok, 80 Va. 86), and even if there be no appearance by the defendant. 
 Gravely v. Gravely, 84 Va. 145. 
 
72 JURISDICTION OF COURTS OF EQUITY. § 17 
 
 any form in the pleadings, because it was apparent that the call 
 for discovery was colorable merely.* 
 
 The proper and usual mode of making objection to the juris- 
 diction is by demurrer, either separately, or incorporated in the 
 answer f but although there be no demurrer, and the defendant 
 has answered the bill, it may be dismissed at the hearing, if it 
 appear from the face thereof that the matter was not proper for 
 the jurisdiction of equity.' 
 
 In Foley v. Hill, 1 Phil. 399, Lyndhurst, Lord Chancellor, 
 dismissed a bill upon an appeal from the vice chancellor because 
 it appeared to be grounded on a title merely legal, and not cogniz- 
 able by a court of equity, notwithstanding the defendant had 
 answered the bill, and insisted on matter of title. This decision 
 was affirmed by the House of Lords." 
 
 The practice of the courts of the United States corresponds 
 with that of the chancery of Great Britain, except where it has 
 been changed by rule, or is modified by local circumstances or 
 local convenience. Hence, the supreme court of appeals has 
 denied relief in cases of equity where the remedy at law has been 
 plain, adequate and complete, though the question was not raised 
 by the defendants in their pleadings, nor suggested by the counsel 
 in their argument.^ 
 
 In Parsons v. Bedford, 3 Pet. 433, the court insists on the 
 necessity imposed on the circuit .court in Louisiana to maintain 
 the distinction between the jurisdiction in which legal rights are 
 
 ' Jones V. Bradshaw et als, 16 Grat. 361. 
 
 ' CoUins et als ii. Jones, 6 Leigh, 532. 
 
 3 Harris v. Thomas, 1 H. &• M. 18; Alderson v. Biggars, &c., 4 H. & M. 473; 
 Eandolph's Adm'x v. Kinney, &c., 3 Band. 394; Stuart's Heirs v. Coalter, 4 Band. 
 78; Hickman v. Stout, 2 Leigh, 6. Ordinarily, if there has been no unreasonable 
 delay in making the motion, it is within the discretion of the court to allow the 
 defendant to withdraw his answer and demur to the bUl. Weisiger et al v. Bich- 
 mond Ice Mach. C!o. el al, 90 Va. 795. 
 
 * 2 H. L. Cas. 28. 
 
 ^ Hipp et al v. Bahin et al, 19 Howard, 278. 
 
§ 17 WHAT IS SUCH A REMEDY AT LAW. 73 
 
 to be ascei-tained, and that where equitable rights alone are 
 recognized and equitable remedies administered. 
 
 In New York, a diiFerent rule is said to prevail, for there it 
 is held that the defendant, by answering in chief instead of 
 demurring, submits his case to the cognizance of the court, and 
 he comes too late at the hearing on the merits to raise the objec- 
 tion to the jurisdiction.^ And yet even there the rule is stated 
 with this qualification, " unless a court of equity is wholly iiwompe- 
 tent to grant the relief sought by the bill." ^ An apparent exception 
 to the ride as we have stated it seems to be implied from the case 
 of Van Lew v. Bohannon, &c., 4 Rand. 540. That was a bill 
 filed to set up a defence which the party might have pleaded at 
 law, and it was there held, that if the party did not choose to 
 avail himself of his right to dismiss the bill, but voluntarily went 
 into the' merits of the case, and in his answer admitted facts which, 
 had they appeared in the court of law, would have there produced 
 a different result, neither the rule nor the principle upon whiclj it 
 is founded will be violated by pronouncing a decree justified by 
 the party's own admissions. 
 
 This case has been distinguished from one in which the matters 
 set up in the bill are controverted by the answer, and must be 
 litigated and determined in the court of chancery before relief can 
 be given ; " but in that case," said Moncure, J., " the defendant 
 in his answer admitted the facts, which, if they had appeared to 
 the court of law, would have produced a different result ; and the 
 court had nothing to do but, on the admission in the answer, to 
 perpetuate the injunction." ^ And so the rule is settled in Vir- 
 ginia that where there is no demurrer a defective bill may be 
 supplemented by the answer and the evidence.* 
 
 ^Underhill v. Van Cortlandt, &c., 2 John. Chy. Rep. 369; Lovingston's Ex'oi-s 
 V. Lovingston, 4 John. Chy. R 290; Wiswall v. HaU and Wife, 3 Paige, 313. 
 
 ^ Hawley, &c. v. Cramer, &c., 4 Cow. 727; Grandin, &c. v. LeEoy, &c., 2 Paige, 
 509; Brinkerhoff, &c. v. Brown, &c., 4 John. Chy. E. 679; Le Eoy, &c. v. Veeden, 
 &c., 1 John. Cases, 428. 
 
 * Hudson V. Kline, 9 Grat. 386. 
 
 * Ambler v. Warwick & Co., 1 Leigh, 196; Salamone v. Keiley et ah, 80 Va. 95. 
 
74 JURISDICTION OF COTJETS OF EQUITY. § 18 
 
 In the case of Brickhouse ■;;. Hunter, Banks & Co., 4 H. & M. 
 363^ an injunction was granted to a judgment which was not liable 
 to be examined in equity on any ground stated in the bill. The 
 injunction might have been dissolved on motion ; but instead of 
 this there was a reference by the parties of all matters in differ- 
 ence between them in the suit to certain arbitrators. The submis- 
 sion to arbitration was regarded as a waiver of the objection to the 
 jurisdiction of equity, and a decree was entered pursuant to the 
 award of the arbitrators. 
 
 Wherever a bill is dismissed for lack of jurisdiction, the court 
 has no right to enter any order, except that of dismissal ; hence it 
 has even been held to be error to award a decree for costs, or to 
 order an execution to issue for them ;' but the rule has not been 
 carried so far in Virginia. 
 
 A Gene)-al Classifiaation of the Subjects of Equity Jurisdiction. 
 
 § 18. A comprehensive sense of the jurisdiction of equity is 
 found in the classification into which it has been divided by Lord 
 Redesdale,^ and by Judge Story,^ as follows : 
 
 First, Where the principles of law by which the ordinary 
 courts are guided give a right, but the powers of those courts 
 are not sufficient to afford a complete remedy, or their modes of 
 proceeding are inadequate to the purpose. 
 
 Second, Where the courts of ordinary jurisdiction are made 
 instruments of injustice. 
 
 Third, Where the principles of law by which the ordinary 
 courts are guided give no right, but upon the principles of uni- 
 versal justice the interference of the judicial power is necessary 
 to prevent a wrong, and the positive law is silent. 
 
 Fourth, In order to remove impediments to the fair decision of 
 a question in other courts. 
 
 ' The Mayor v. Cooper, 6 Wallace, 247. 
 ^Mitford's Equity PI. by Jeremy, pp. Ill, 112. 
 
 ' Story's Equity Jurisprudence, Tol. 1, § 32. See also Minor's Insts., Vol. 4, 
 Pt. 2, p. 1107. 
 
§ 19 QENEEAL CLASSIFICATION OP SUBJECTS. 75 
 
 Fifth, To provide for the safety of property in dispute pend- 
 ing a litigation, and to preserve property in danger of being dis- 
 sipated or destroyed by those to whose care it is by law entrusted, 
 or by persons having immediate but partial interests. 
 
 Sixth, To restrain the assertion of doubtful rights in a manner 
 productive of irreparable damage. 
 
 Seventh, To prevent injury to a third person by the doubtful 
 title of others. 
 
 Eighth, To put a bound to vexatious and oppressive litigation, 
 and to prevent multiplicity of suits. 
 
 Ninth, To compel a discovery, or to obtain evidence, which 
 may assist the decision of other courts. 
 
 Tenth, To preserve testimony when in danger of being lost 
 before the matter to which it relates can be made the subject of 
 judicial investigation. 
 
 To these topics may be added these other cardinal subjects of 
 equity jurisdiction, — accident ; mistake ; fraud ; accounts ; admin- 
 istration of estates ; specific performance of contracts ; dower ; 
 subrogation ; suretyships ; partition ; partnerships ; interpleaders ; 
 awards ; injunctions ; assignments ; trusts ; infants ; sales of land ; 
 enforcement of liens ; attachments in equity ; marshalling assets ; 
 appointment of receivers; rescision and cancellation of deeds; 
 forfeitures and penalties ; quieting possession, &c.^ 
 
 Maxims of Equity. 
 
 § 19. In further illustration of the jurisdiction of courts of 
 equity, we have, among others, these maxims : 
 
 (1), Equity follows the law ; (2), Where there is equal equity, 
 the law must prevail ; (3), He who seeks equity must do equity ; 
 (4), Equality is equity ; (5), Equity looks upon that as done 
 which ought to have been done ; ^ (6), He that hath committed 
 
 ^See also the classification in Minor's Insts., Vol. 4, Pt. 2, p. 1105-1108, and 
 on p. 717, Vol. 6 Am. & Eng. Eneyc. of Law. See Post v. Carr, 42 W. Va. 73. 
 
 ' Story's Equity Jurisprudence, Vol. 1, ?§ 63-64. Equity will not regard a 
 thing as done which has not been done, when it would injure third parties who 
 
76 JUBISDICTION OF COURTS OF EQUITY. § 19 
 
 iniquity s&all not have equity ; (7), He should make satisfaction 
 who receives the benefit; (8), He should have satisfaction who 
 has sustained the loss ; (9), Equity suffers not a right to be with- 
 out a remedy ; (10), Equity regards not the circumstance, but the 
 substance of the act. 
 
 The first six maxims are treated of by Judge Story ; the others 
 cited form the subjects of separate chapters in the " Maxims of 
 Equity," by Richard Francis, published in 1739. 
 
 The maxim, that equity follows the law, is construed to mean, 
 that equity adopts and follows the rules of law in all cases to 
 which those rules may in terms be applicable ; and also that 
 equity, in dealing with cases of an equitable nature, adopts and 
 follows the rules of law in all cases to which those rules may in 
 terms be applicable ; and also that equity, in dealing with cases 
 of an equitable nature, adopts and follows the analogies furnished 
 by the rules of law; but these definitions are not of universal 
 application.^ When a rule, either of the common or statute law, 
 is direct, and governs the case with all its circumstances on the 
 particular point, a court of equity is as much bound by it as a 
 court of law, and can as little justify a departure from it. If the 
 law commands or prohibits a thing to be done, equity cannot en- 
 join the contrary or dispense with the obligation,.^ And yet there 
 are cases in which equity, so far from following the law, openly 
 abandons it ; for instance, in suits for the specific performance of 
 contracts for the sale of . real estate, equity will enforce parol con- 
 tracts on the ground that they have already been performed in 
 part; will allow time to make out a title beyond the day 
 which the contract specifies, and will allow a conveyance with 
 compensation for defects.^ 
 
 have sustained detriment and acquired rights by what has been done. Casey v. 
 Cavaroc, 96 U. S. B. 467. 
 
 'Story's Equity Jurisprudence, Vol. 1, § 64. For a full discussion of these 
 maxims and citation of the cases governed by them see Am. & Eng. Encyc, Vol. 
 6, p. 704. 
 ^Tucker's Commentaries, Vol. 2, p. 394. 'Adams' Equity, ? 85. 
 
§ 19 MAXIMS OF EQUITY. 77 
 
 So in many cases equity acts by analogy to the rules of law in 
 relation to equitable titles and estates. Thus, although the statutes 
 of limitation are, in their terms, applicable to courts of law only, 
 yet equity by analogy acts upon them, and refuses relief under 
 like circumstances. 
 
 " In short," says Judge Story, " it may be correctly said, that 
 the maxim that equity follows the law, is a maxim liable to many 
 exceptions ; and that it cannot be generally affirmed that where 
 there is no remedy at law in a given case, there is none in equity; 
 or on the other hand, that equity, in the administration of its own 
 principles, is utterly regardless of the rules at law." 
 
 The error of giving too strict an interpretation to the maxim 
 that equity follows the law, is illustrated by what has been already 
 said in this chapter, of the principles of subrogation and of the 
 wife's equity to a settlement, and by what is said in the next 
 chapter upon the subject of the effect of statutes of limitation upon 
 suits in equity. 
 
 The next maxim is, that where there is equal equity, the law 
 must prevail. This is well illustrated by the rules of priority 
 which govern transfers and charges upon an estate, which are, that 
 if legal and equitable titles conflict, or if in the absence of a legal 
 title there is a perfect equitable title by conveyance on the one 
 hand, and an imperfect one by contract on the other, priority is 
 given to the legal title, or if there is no legal title, to the perfect 
 equitable one.^ 
 
 " In order, however," says Mr. Adams, " that this maxim may 
 operate, it is essential that the equities be equal. If they are 
 unequal, the superior equity will prevail, and such superiority may 
 be acquired under any of the three following rules : 
 
 " 1. The equity under a trust or a contract in rem, is superior 
 to that under a voluntary gift, or under a lien by judgment. 
 
 " 2. The equity of a party who has been misled is superior to 
 his who has wilfully misled him. ' 
 
 1 Adams' Equity [148]. 
 
78 JTTEISDICTION OF C»UETS OF EQIOTY. § 19 
 
 " 3. A party taking mth notice of an equity, takes subject to 
 that equity." ' 
 
 Where the defendant has as much claim to the protection of a 
 court of equity for his title as the plaintiff has to assert his, the 
 court will not interfere on either side, for the rule then is in cequali 
 jure mdior est conditio ])ossidentis. So the equity is equal between 
 persons who have been equally innocent, and equally diligent. 
 But where the title of each party is purely equitable, the maxim 
 qui prior est in tempore, potior est in jure prevails. ■ Hence, when 
 the legal estate is outstanding, equitable encumbrances must be 
 paid according to priority of time. And whenever the equities 
 are unequal, the preference is given to the superior equity.^ 
 
 The principal application of the maxim, that he who seeks 
 equity must do it,' is to the party who sues as plaintiff. Among 
 the many illustrations of the j^rinciple may be mentioned those 
 cases where the party sues to avoid an usurious debt, where as a 
 condition to relief courts of equity compel the borrower to pay 
 what is really and bona fide due, although if the lender come into 
 equity to recover such a debt, his bill will be dismissed without 
 any payment, for courts of equity never assist a wrong-doer in 
 effectuating an illegal purpose. 
 
 So also, where a husband seeks in equity to recover his wife's 
 property, and he has made no settlement on her, h© shall not 
 have it without making a suitable settlement. 
 
 The fourth maxim mentioned is, that equality is equity, and 
 this is said to constitute equity itself. Its application is found 
 in cases of contribution between co-sureties and others ; to cases 
 of abatement of legacies, where there is a deficiency of assets ; to 
 cases of apportionment of money due on incumbrances among dif- 
 ferent purchasers, and claimants of different parcels of land ; and 
 especially to cases of marshalling and distribution of equitable assets.* 
 
 1 Adams' Equity, top p. 350 [149]. 
 'Story's Equity jurisprudence, Vol. 1, ? 64. 
 ' Jones et al v. Eoberts, 6 Call. 187. 
 * Story's Equity Jurisprudence, ? 64, f. 
 
§ 19 MAXTALS OF EQUITY. 79 
 
 The only remaining maxim of which further mention need be 
 made here is, that he that hath committed iniquity shall not have 
 equity. This is the converse of the maxim, that he who seeks 
 equity must do equity-. On this principle the unjust suitor is 
 absolutely excluded from the doors of the court, which are ever 
 shut against him who has stained his hands with fraud and 
 injustice. Hence the expression that he who enters here must 
 come with clean hands. 
 
 Thus, if a debtor makes a fraudulent conveyance of his property" 
 upon a secret trust that the grantee shall hold it for his use, equits* 
 will not assist him, even against his knavish associate, for he hath 
 done iniquity.' 
 
 For a proper application pf the rule, potior est conditio de- 
 fendentis to the maxim under discussion, it is not proper to con- 
 sider alone who is plaintiff in the suit, and who defendant, but 
 rather by whom the fraud is alleged or sought to be made a 
 ground of defence or recovery. For although it is no doubt true, 
 in general, that the law will not lend its aid to enforce a fraudu- 
 lent or illegal contract, still, if the plaintiff can make out his case 
 without disclosing the fraud, the defendant will not be allowed to 
 show that he is equally guilty with the plaintiff as a reason why 
 the latter shoidd not recover.^ 
 
 ^Tucker's Commentaries, Vol. 2, p. 396. 
 
 ' Colling r. Blantem, Smith's Leading Cases, Vol. 1, Pt. 1, p. 637; Evans f. 
 Dravo, 12 Harris, 62; Hendrickson v. Evans, 1 Casey, 441. The entire subject is 
 ably discussed by Christian, J. , in the case of Harris v. Harris' Ex' or, 23 Grattan, 
 p. 762, and he there refers to the cases of Austin's Adm'x v. Winston's Ex'x, 1 
 H. & M. 33; James r. Bird's Adm'r, 8 Leigh, 510. In Eobinson's Practice, Vol. 
 5, p. 542, the decided cases, American and English, are collected and classified, 
 and their application both to courts of law and equity noted. See also, in pari 
 ddicU), Smith v. A'Pinsatt & ChUton, 84 Va. 840; Horn v. Star Foundry Co., 23 
 W. Va. 522; Barrett v. Barrett, 83 Va. 504; Eock v. Mathews, 35 W. Va. 531; 
 Cain V. Cox, 23 AV. Va. 594. Cardwell v. Kelly, Va. (28 S. E. K. 953). 
 
CHAPTER II. 
 
 LIMITATION TO SUITS IN EQUITY. 
 
 ?20. 
 
 The Rules of Limitation at Law 
 
 §27 
 
 
 and in EcLuity. 
 
 §28 
 
 §21. 
 
 How Limitations must be Pleaded 
 
 
 
 in Equity. 
 
 §29 
 
 §22. 
 
 The Kule of Presumption of Pay- 
 
 
 
 ment. 
 
 §30 
 
 §23. 
 
 The General Effect of Laches. 
 
 
 §24. 
 
 Limitation in Cases of Fraud. 
 
 §31 
 
 §25. 
 
 Where there has been a Voluntary 
 
 §32 
 
 
 Conveyance. 
 
 §33 
 
 §26. 
 
 To the Eight to Enforce a Judg- 
 ment Lien. 
 
 §34 
 
 Where there is a trust. 
 
 Where thei-e is a Mortgage or Deed 
 of Trust. 
 
 Suits for Partnership and other 
 Accounts. 
 
 To Surcharge and Falsify an Ac- 
 count. 
 
 Suits for Specific Performance. 
 
 Appeals. 
 
 Rehearing and Review. 
 
 Time and Persons Excluded from 
 the Statute. 
 
 The Rules of Limitation at Law and in Equity. 
 
 § 20. The statute of limitations has in terms no application to 
 suits in equity -^ but as a general rule courts of equity act upon 
 the statute by analogy, and refuse relief in cases in which, if it 
 were an action at law, the statute would forbid it ; for courts of 
 equity always discountenance laches, and hold that they are pre- 
 sumable in cases where it is so positively declared at law.^ Where 
 the demand is strictly of a legal nature, or in cases of concurrent 
 jurisdiction,^ the statute of limitations is strictly followed ; and on 
 these subjects courts of equity are said to act not so much by 
 analogy as positively in obedience to the statute ;'' but where the 
 
 ^ Bassett's Adm'r v. Cunningham's Adm'r, 7 Leigh, 407. 
 
 ^ Story's Equity Jurisprudence, Vol. 1, § 64a; Johnson v. Toulwin, 18 Ala. 50; 
 52 Am. Dec. 212; note, p. 221; Wanmaker v. Van Buskirk, 1 Saxtan Cr. 685; 
 23 Am. Dec. 748; note, p. 755; Perkins v. Cartmell, 4 Harrington, 270; 42 Am. 
 Dec. 753; Smilie v. Biffler, 2 Penna. State, 52; 44 Am. Dec. 156; note, p. 159. 
 
 ■' Badger v. Badger, 2 Wallace, 94. 
 
 * Story's Equity Jurisprudence, §§ 529-1521; Hovendon v. Lord Annesly, 2 
 Sch. & Lefr. 632; Medlicott v. CDonel, 1 BaU. & Beat. 166; McCarty v. Ball, 
 82 Va. 872; Haynie v. Hall's Ex'r et ai, 5 Humphreys, 290; 42 Am. Dec. 427; 
 
§ 20 ETJLES OF LTSIITATIOX AT LAW A^^) IN EQUITY. 81 
 
 demand is purely equitable, or in matters of concurrent juris- 
 diction where the bar of the statute is inapplicable, equity acts 
 sometimes by analogy to the provisions of the statute, and some- 
 times upon its own inherent doctrine not to entertain stale de- 
 mands, and not to encourage laches and negligence/ 
 
 Among the instances concerning which courts of equity, not 
 being bound by the terms of the statute of limitations, have not 
 deemed it proper to be ruled by its provisions, are cases of trust 
 and fraud. Of these, more especial mention will presently be 
 made.^ 
 
 Among those instances in which these courts strictly foUow the 
 law, are those of equitable titles to land, wherein relief must be 
 sought within the period in which an action of ejectment would 
 lie at law ; and cases of equitable personal claims in which courts 
 of equity require relief to be sought within the period prescribed 
 for legal demands of a like nature.' 
 
 The statute of limitations of Virginia, however, interposes an 
 express bar to suits in equity in but a few classes of cases,* among 
 which may be principally mentioned, first, In cases of gifts, con- 
 veyances, assignments, transfers, or charges which are not on 
 
 Beeves v. Dougherty, 7 Yerger, 222; 27 Am. Dec 496; note, p. 502; McCrea v. 
 Pmmort, 16 WendeU, 460; 30 Am. Dec. 103; not«, p. 117. " Independently of 
 any limitation for the guidance of courts of law, equity may, in the exercise of its 
 own inherent powers, refuse relief where it is sought after undue and unexplained 
 delay, and when injustice would he done in the particular case hy granting the 
 relief asked." Abraham v. Ordway, 158 U. S. E. 416; Bond v. Hopkins, 1 Sch. & 
 Lefr. 429; Cholmondeley v. Lord Clinton, 2 Jac & AValk. 137; Hughson r. Man- 
 deville, Ac, 4 Desau. 91; Harrison v. Harrison, 1 CaU. 428; Howe v. Bentley et 
 ah, 29 Grat. 759; Daniel's Chancery Practice, Vol. 1, p. 559; Godden v. Kimmell, 
 ^^ U. S. K. 201. 
 
 1 Sullivan v. Portland E. K. Co., 4 Otto, 811; Justis v. EngEsh et ah, 30 Grat. 
 576; Metropolitan Bank v. St. Louis Dispatch Co., 149 T. S. E. 436. 
 
 -Post, II 24, 25. 
 
 ' Cholmondeley v. Clinton, 2 Jac & AValk. 138; Ehnendorf v. Taylor, 10 Wheat. 
 132; Michond v. Girod et ah, 4: Howard, 503; Straughan v. AVright, 4 Eand. 493; 
 Cresap v. McLean et ah, 5 Leigh, 381; 1 Lomax's Digest, 809-810. 
 
 * Minor's Institutes, VoL 2, p. 513; Graham et al v. Graham et al, lH W. Ya. 
 598; HeiskeU v. Powell, 23 W. Ya. 717. 
 6 
 
82 LIMITATION TO SUIT'S IN EQUITY. § 21 
 
 considerations deemed valuable in law, wherein the suit of auy 
 creditor to vacate it is limited to five years after the right to avoid 
 such gift, conveyance, etc., has accrued -^ and second, In cases of 
 grants of land by the Commonwealth, in order to repeal which, in 
 whole or in part, the suit must be brought within ten years next 
 after the grant.^ And now also the statute^ imposes a bar to a 
 suit in equity to surcharge and falsify the settled account of a 
 fiduciary. 
 
 How Limitations must be Pleaded in Equity. 
 
 § 21. In the case of Hickman v. Stout, 2 Leigh, 10, Judge Carr 
 declared it to be well established, that one cannot avail himself of 
 the statute of limitations in a suit in equity without pleading it ; ■* 
 but it was argued that the rule of limitations did not apply to that 
 case (which was a bill in equity for an account), because neither 
 the bill, nor the account exhibited with it, showed any items of 
 more than five years' standing. To this the court replied, that if 
 that were the fact, it would not have entitled the defendant to 
 avail himself of the statute without pleading it, however he might 
 have taken advantage of the defect in another way. 
 
 This same general rule is recognized by the supreme court of 
 appeals of Virginia, in the case of Tazewell's Ex'or v. Whittles, 
 Adm'r, 13 Grat. 344 ; but it is there said that the same strictness 
 of pleading is not required in equity as at law. In courts of 
 equity it is not common to plead the statute specially or formally, 
 but only to rely upon it in general terms in the answer. The 
 
 1 Code, § 2929. Under the statute of West Virginia (Code W. Va., Ch. 104, 
 g 14) the limitation runs from "five years after it is made," as was ti'ue of the 
 Virginia statute prior to the Code of 1887. 
 
 ' Code, ? 2930; Code W. Va., Ch. 104, § 15. The general rule is that a statute 
 of limitations does not run against the State in 'the absence of express legislative 
 enactment. Crane v. Keeder, 21 Mich. 24; 4 Am. E. 430. 
 
 ' ? 2921. 
 
 * See alsp Hudsons «. Hudson's Adm'r, 6 Munf. 352; Col vert ij. MUlstead' s Adm'x, 
 5 Leigh, 88. Laches may be relied on by demurrer where the pleading demurred 
 to shows the facts on which the defence of laches rests. Paxton v. Paxton, 38 W. 
 Va. 617-625. 
 
§ 21 HOW LIMITATIONS MUST BE PLEADED IN EQUITY. 83 
 
 only reason for requiring the defence to be made by plea or answer 
 is, that the plaintiff may have an opportunity if he can to take 
 the case out of the operation of the statute, and anything in an 
 answer which will apprize the plaintiff that the defendant relies 
 on the statute, will be sufficient, if such facts be averred as are 
 necessary to show that the statute is applicable. 
 
 In Reynolds v. Lee (reported in the Virginia Law Journal, for 
 1881, p. 649) the court of appeals of Virginia held that as it did not 
 appear from the record that the appellant relied upon the statute 
 of limitations by plea or in his answer, or in any form, by way 
 of defence to a claim for rents, in the court below, it was too late 
 to raise the objection in the appellate court. In Smith v. Pattie, 
 81 Va. 665, the court said : " In courts of equity in this State, whilst 
 the defence of the statute may and ordinarily should be made by 
 plea or answer, it is not the common practice to plead the statute 
 formally, but to rely upon it in general terms in the answer." 
 
 In Gibson and Wife v. Greens Adm'r et als, 89 Va. 526, the 
 court said, " nothing is better settled than that the statute, to be 
 availed of, must be pleaded ; " but it does not appear from the 
 record in this case whether or not the matter of limitations was so 
 apparent from the bill as that a demurrer might have raised the 
 question. The conclusion thus reached seems to be, that although 
 the bill states on its face a case which is barred of relief by the 
 statute of limitations, or by the rules of equity analogous thereto, 
 yet nevertheless no such defence is available, unless it be set up in 
 some way, by plea or by the answer, so as to apprize complainant 
 of the intention of the defendant to rely on it ; in other words, 
 the defence of limitation cannot be made by a demurrer, and so 
 Lord Eedesdale seems to have thought.^ 
 
 ^Mitford's Ch. PI. [272] ed. 1849. This defence may certainly be made as 
 well by answer as by plea. Daniel's Chy. Pr., Vol. 1, p. 721, note. In Sleeth v. 
 Murphy, Morris 321, 41 Am. Dec. 232, held that the statute of limitations is 
 unavailable by demurrer, but in the note, on p. 234, it is shown that a contrary rule 
 generally prevails in the United States. As to Lord Bedesdale's views, however, 
 see the opinion of Justig? Harlan ip. Landsdale v. Smith, 106 IJ, S, B, 393, 
 
84 LIMITATION TO SUITS IN EQUITY. 21 
 
 In Story's Equity Pleadings, § 484, note, it is said that this is 
 certainly not the present doctrine ; and in the text the author 
 says, that when a bill states a case -within the statute of limita- 
 tions at law, courts of equity follow the analogy of the law, and 
 these courts hold that the objection may be made by demurrer, 
 and that if the plaintiif be within any exception of the statute, it 
 is incumbent on him to state it in his bill. In the note to page 
 272 of Mitford's Chancery Pleadings (ed. 1849), the editor adds 
 that it seems now to be settled that a defendant may demur on the 
 ground of lapse of time, when it appears in the bill, and he need 
 not set up that defence by plea.^ 
 
 The same conclusion is reached by the author of Adams' Equity, 
 where the cases to sustain his views are all set forth ; ^ and where 
 it is held that it is incumbent on the complainant to state, by way 
 of anticipation in his bill, the facts and circumstances which he 
 relies on to take the case out of the operation of the general rules. 
 In Coles V. Kelsey, 2 Texas, 541, 47 Am. Dec. 661,^ it was held 
 that where a petition shows on its face that cause of action is 
 barred by the statute of limitations the objection may be taken 
 as a defence by demurrer. The same was held in McClenney v. 
 McClenney by the same court.* 
 
 In the case of Landsdale v. Smith, 106 U. S. E. 391, the 
 supreme court of the United States declared it to be the estab- 
 
 1 Hepburn's Case, 3 Bland, 95; National Bank v. Carpenter, 101 U. S. E. 567. 
 
 ^Adams' Equity, 638, »ote; Wisner v. Bamet, 4 Wash. C. C. 631; Dunlap v. 
 Gibbs, 4 Yerg. 94; Humbert v. Kector of Trin. Ch., 7 Paige, 197; 24 Wend. 595; 
 Maxwell v. Kennedy, 8 Howard, 210; Field v. Wilson, 6 B. Monr. 479; Ingraham 
 V. Began, 23 Mississippi, 214; Bank of TJ. S. v. Biddle, 2 Pars. E(j. 31; Pratt v. 
 Northam, 5 Mason, 95; Williams v. Presb. Soc., 1 Ohio St. N. 8. 478; Nimmo v. 
 Stewart, 21 Ala. 682; Mayne v. Griswold, 3 Sandf. S. C. 464; Conlra, Bulkley v. 
 Bulkley, 2 Day, 363; Hickman v. Stout, 2 Leigh, 6. See also Sullivan v. Portland 
 and Kennebec Railroad Company, 104 U. S. E. 806; Wilson v. Anthony, 19 Ark. 16; 
 where the court declared that the defence of the statute of limitations, not being 
 set up by plea or answer, it could not consider the case in that aspect; but it held 
 that no such averment was necessary to let in the defence that the daim was stale. 
 
 ' In note, on p. 675. Sleeth v. Murphy, 41 Am. Dec. 232 and note, is cited amira. 
 
 * 3 Texas, 192; 49 Am. Dec. 738. 
 
§ 21 HOW LIMITATIONS MUST BE PLEADED IN EQUITY. 85 
 
 lished doctrine of that court that "the proper rule of pleading 
 would seem to be that when the case stated by the bill appears to 
 be one in which a court of equity will refuse its aid, the defendant 
 should be permitted to resist it by demurrer. And as the laches 
 of the complainant in asserting his claim is a bar in equity, if that 
 objection is apparent on the bill itself, there can be no good reason 
 for requiring a plea or answer to bring it to the notice of the court." 
 
 In Jackson's Adm'r v. Hull, 21 W. Va. 610, Judge Snyder said 
 that the former rule was that lapse of time was a proper ground 
 for a plea and not for a demurrer, but that " it is now clearly the 
 rule in equity that the statute of limitations, or objections in 
 analogy to it upon the ground of laches, may be taken advantage 
 of by demurrer as well as by plea ; " and the reason given for the 
 change in the rule is the " abolition and disuse of special replica- 
 tions in equity practice." 
 
 But the same court ^ (Judge Lucas delivering the opinion) said : 
 " While it may be doubted whether the presumption of payment 
 or the mere staleness of demand can be reached by demurrer to 
 the bill, yet where the law is applicable by analogy to the statute, 
 and that appears in the bill, the defect may be taken advantage 
 of by demurrer." • 
 
 The rule that the defence of laches may be made by demurrer 
 seems to be definitely settled by the same cOurt in the cases of 
 Paxton V. Paxton, W. Va. ; 18 S. E. E. 765, and Thompson v. 
 Whitaker Iron Co., W. Va. ; 23 S. E. E. 795. The weight of 
 authority, therefore, as well as of reason, seems to be strongly 
 against the doctrine established by the Virginia cases.^ 
 
 It may be that some confusion has arisen on this Subject from 
 the rule which seems so well settled, that when the statute of 
 limitations is relied on as a bar, at law or in equity, and the 
 plaintiff desires to bring himself within its savings, he must set 
 forth the facts specially in his replication, or by an amendment to 
 
 ' Van Winckle v. Blackford, 33 W. Va. 584. 
 2 See Post, 1 112, Division V. 
 
86 LIMITATION TO SUITS UST EQUITY. § 22 
 
 his bill; or the existence of the exception, not being an issue 
 between the parties, the court can take no notice of any evidence 
 to establish it.' 
 
 The bar of the statute may be objected in an action at law 
 to a matter of set>-off without formal plea;^ and in chancery it 
 may be set up by exception to a commissioner's report.* It is 
 competent to any party interested in a fund to take advantage 
 of the statute, and this, notwithstandmg the executor of a deceased 
 party refuses to do so.* 
 
 The Rule of Presumption of Payment. 
 
 § 22. The rule at common law was, that after twenty years 
 from its maturity^ a bond was presumed to have been paid; but 
 
 1 Miller i). Mclntyre, 6 Peters, 61; Piatt v. Vattier et ah, 9 Peters, 405; Boss 
 et ah V. Doval et ais, 13 Peters, 45; Taylor et al v. Benham, 5 Howard, 233; Mars- 
 teller et ah v. McClean, 7 Cranoh, 156; Lewis' Ex' or v. Bacon's Legatee, &c., 3 H. 
 & M. 89; Switzer et ah v. Noflsinger et ah, 82 Va. 522; Dow's Adm'r ti. Eohr et ah, 
 82 Va. 366. 
 
 2 Trimyer «. Pollard, 5 Grat. 460; BeU v. Crawford, 8 Grat. 110. 
 
 " Jincey et als v. Winfield's Adm'r, 9 Grat. 721; Woodyard, Keceiver, v. Polsley, 
 14 W. Va. 211; TazeweU's Ex' or v. Whittle's Adm'r, 13 Grat. 345; Johnston, 
 Trustee, &c. v. Wilson's Adm'r et als, 29 Grat. 390; Werdenbaugh v. Eeid, 20 W. 
 Va. 588; Smith v. Pattie, 81 Va. 654; Leith's Adm'r v. Carter's Adm'r et ah, 83 
 Va. 889. 
 
 ■•Shewenu. Vanderhost, 4,Cond. Eng. Ch. K. 458; Tazewell's Ex'orji. Whittle's 
 Adm'r, 13 Grat. 345; Woodyard v. Polsley, 14 W. Va. 211; McCartney v. Potomac 
 Electric Co., Va. ; 26 S. E. B. 421. As to the person who may make the defence 
 of the statute of limitations, it has also been held that while it may be relied on 
 generally by a creditor against the claim of a co-creditor, yet it shall only enm:e 
 to the benefit of him who pleads it under a creditor's bill, and can only be allowed 
 so to operate as to exclude the claim against which it is plead from coming in con- 
 flict with or receiving anything to the prejudice of the claim of him by whom the 
 statute of limitations was pleaded. Post v. Mackall, 3 Bland. 498-499. See 
 McQaugherty v. Croft, W. Va. ; 27 S. E. E. 246; Smith v. Pattie, 81 Va. 665. In 
 Alabama {Ex parte Perryman, 25 Ala. 79, 60 Am. Dec. 494) the rule seems to be 
 that a distributee will not be allowed to appear and defend an action against the 
 administrator who refuses to make a proper defence by pleading the statute of 
 limitations, nor do I think he could appear and plead to such an action in Virginia. 
 
 * That is where twenty years have elapsed after the right of action has accrued. 
 Updikes Adm'r t;. Lane, 78 Va. 132; Coles' Adm'r v. Ballard et ah, Id. 139; Cal- 
 well's Ex' or v. Prindle's Adm'r, 19 W. Va. 604; Alexander v. Byrdei al, 85 Va. 
 697; Tunstall's Adm'r v. Withers, 86 Va. 897. 
 
§ 22 THE RULE OF PEEStrMPflON OF PAYMENT. ,87 
 
 that presumption might be overcome by any satisfactory evidence 
 to the contrary ;' as by an express acknowledgment by the obligor 
 within the twenty years that the debt was still due/ by the implied 
 acknowledgment which arose from the payment of interest, or a 
 part of the principal ; ^ which fact might be proved by extrinsic 
 evidence, or even by an endorsement of a credit for the payment 
 made, by the obligee himself before the presumption attached f 
 by showing the debtor's lack of opportunity or inability to pay 
 during that period ; '^ by the long continued absence of the debtor 
 or creditor abroad ; by the suspension of the collection of the debt 
 by an injunction, or by a state of war ; or by the near relationship 
 of the parties.* And if a shorter period than twenty years has 
 elapsed, even by a day, the legal presumption does not arise.' 
 
 These rules prevail as much in courts of equity as at law, 
 and it has been declared,* that they are conclusions to be drawn 
 by the court from the proofs, as they are drawn by a jury upon a 
 
 ' Such as express admissions ; payments in part ; insolvency of obligor; stay 
 laws ; near relationship ; war ; disabilities ; lack of knowledge of rights, &c. , &c. 
 Updike's Adm'r v. Lane, 78 Va. 132; Tunstall's Adm'r v. Withers, 86 Va. 900. 
 
 ^ Van Eensselaer v. Livingston, 12 Wend. 490; Park v. Peck, 1 Paige, 478; 
 Heyer v. Pruyn, 7 Paige, 469; Buie v. Buie, 2 Iredell, 91; Carll v. Hart, 15 
 Barboiir, 567. 
 
 'Hunt V. Bridgham, &c., 2 Pick. 583; Carll v. Hart, 15 Barbour, 567; Kitchen 
 V. DeardofF, 2 Barr. 481. The case of a vendor" s lien is included in these rules. 
 Marston v. Harrison, 1 Bland. 491. 
 
 *Babney's Ex'or J). Dabne^s Adm'r, 2 Rob. 650; Eoseboom v. BUlington, 17 
 John. E. 182; Eose v. Bryan, 2 Camp. 321; Contra, Searle v. Lord Barrington, 2 
 Str. 826. 
 
 5 Fladong v. Winter, 19 Ves. 196; Matthews v. Smith, 2 Dev. & Bat. 287; 
 McKinder v. Little, John. 1, Iredell, 73. 
 
 «Mmor's Institutes, Vol. 2, p. 758; Bac. Abr. Oblig. P.; 1 Th. Co. Lit. 13 n 
 (K); 1 Eob. Pr., 2d ed., 461; WeUs v. Washington's Adm'r, 6 Munf 532; Dab- 
 neyi). Dabney, 2 Eob. 622; Mulladay v. Machir, 4 Grat. 1; Perkins v. Perkins, 9 
 Grat. 649; HutsonpUler o. Stover, 12 Grat. 570; Erskine v. North, 14 Grat. 60; 
 Oswald V. Leigh, 1 T. E. 370; Bailey v. Jackson, 16 Johns. E. 210; Jackson v. 
 Pierce, 10 Johns. E. 414. But see Bryce v. Lake, 17 S. C. 481; 43 Am. E. 618. 
 
 'Booker's Adm'r v. Booker's Eep., 29 Grat. 607; Sadler's Adm'r v. Kennedy's 
 Adm'x, 11 W. Va. 187. See the whole subject fully discussed and the cases cited 
 in Vol. 13 Am. & Eng. Encyc. of Law, p. 669, et seq. 
 
 ^GUes V. Baremore, 5 Johns. Ch. 550; Jones v. TurbevUle, 2 Vesey, Jun. 11; 
 Pickering v. Lord Stamford, 2 Vesey, 272; Hillary v. Waller, 12 Vesey, 265. 
 
88 LIMITATION TO SUITS IN EQUITY. § 22 
 
 trial at law ; and if the defendant does not waive the benefit of 
 the presumption in his answer, but insists upon his ignorance of 
 the fact whether payment has or has not been made (this igno- 
 rance being founded upon his being a stranger to a mortgage in 
 the case here cited), and upon the staleness of the demand, he has 
 a right to raise the objection at the hearing. 
 
 In the case of Deloraine v. Browne, 3 Bro. 633, Lord Thurlow 
 overruled a demurrer to a bill, but admitted that the circumstance 
 would have its weight, or might be urged at the hearing. 
 
 " But," says Chancellor Kent,^ " these presumptions do not 
 always proceed, as has been repeatedly observed, on the belief 
 that the thing presumed has taken place.^ A grant, which is of 
 course a matter of record, may be presumed agaiast the crown, 
 not that the court really thinks, as Lord Mansfield has observed, 
 that a grant has been made, because it is not probable a grant 
 should have existed without its being upon record, but they pre- 
 sume the fact for the purpose, and from a principle of quieting 
 the possession. The defendant says he is ignorant whether or no 
 the debt has been paid ; and in Hillary v. Waller, the Master of 
 the Rolls says : 'It is because there are no means of creating 
 belief or disbelief that such general presumptions are raised. 
 Instead of belief, which is the foundation of the judgment upon 
 a recent transaction, the legal presumption in matters of antiquity 
 holds, as he observed, the place of particular and individual belief." 
 
 The rule of presumption of payment, and the principles upon 
 which it rests, have not been confined to bonds and mortgages ; 
 but courts of equity have at all times, upon general principles of 
 their own, even where there was no analogous statutory bar, refused 
 relief to stale demands of all sorts where the party has slept upon 
 his rights and acquiesced for a great length of time ; although it 
 has generally been held, that wherever a bar has been fixed by 
 
 ^ Giles V. Baremore, 5 Johns. Ch. K. 550. 
 
 ' Lord Mansfield in Eldridge v. Knott, Cowp. 214, and Sir William Grant, the 
 Master of the Eolls, in Hillary v. Waller, 12 Vesey, 252. The rule is applicable to 
 legacies. Perry on Trusts, § 576; Eedfield on Wills, Vol. 2, p. 210. 
 
§ 22 THE RULE OP PRESUMPTION OF PAYMENT. 89 
 
 statute to the remedy in a court of law, the remedy in a court 
 of equity has in the analogous cases been confined to the same 
 period.^ 
 
 The Legislature of Virginia, in 1826 and 1828, enacted statutes 
 of limitations to apply directly to indemnifying bonds, bonds of 
 public officers, and of fiduciaries ; and by a statute which took 
 effect July 1, 1860, an express limitation was also applied to any 
 other contract by writing under seal. 
 
 In one sense the statute applies a different rule from that of 
 the presumption of payment as it existed at common law, in that 
 wherever the statute is applicable and is plead, there is not a 
 mere presumption, but a conclusion against the right of a party 
 to recover ; and this cannot be rebutted by any proof of payment, 
 or acknowledgment (except as otherwise provided by statute), or 
 other circumstance' which is sufficient to overcome the presump- 
 tion of payment under the rule as we have been discussing it. It 
 will be seen, however, that beyond this effect, the statute does not 
 interfere with the rule of presumption. 
 
 Before the passage of the act of limitations affecting bonds, it 
 was held of an action on a promissory note, if twenty years 
 elapsed between the time of its maturity and of the institution 
 of the action, the defendant might (without pleading the stat- 
 ute of limitations) rely upon the presumption of payment with 
 precisely the same effect as if the action was upon a specialty.^ 
 
 Since the passage of that act it has been held that the same 
 rule applies to an instrument which is sealed, and this whether it 
 
 ' For a full discussion of this subject see Story's Equity Jurisprudence, Vol. 2, 
 § 1520, I 1520 a, and notes; Perry on Trusts, § 866; Smith ei ab v. Thompson's 
 Adm'r, &c., 7 Grat. p. 119. 
 
 " Wells V. "Washington's Adm'r, 6 Munf. 532; Tomlin's Adm'r v. Haw's Adm'r, 
 GUm. 8; Hunt v. Bridgham, &c., 2 Pick. 581; 1 Rob. Pr., new ed., 461; Duffield v. 
 Creed, 5 Esp. E. 52; 1 Philips on Evidence, p. 576. For the effect upon existing 
 debts of changes in the statute of limitations, see 1 Barton' s Law Pr. , p. 78 ; Code, 
 U 2936, 4204; 2 Barton's Law Pr., p. 1395; Stater. Wines, 38 W. Va. 125; Camp- 
 bell et al V. Holt, 115 U. S. B. 620. 
 
90 LiMiTATioisr to suits in fiQtiiTV. § 23 
 
 was executed before or since July 1st, 1850, the day on which the 
 act took effect.' 
 
 , Judge Moncure, in the case of Foster's Curator v. Eison et al, 
 17 Grat. 335, gives perhaps a clearer view of the effect of the 
 statute than is to be found elsewhere. He says : " The statute of 
 limitations not being a bar to the suit, it seems to follow, as a 
 necessary consequence, that laches and lapse of time constitute no 
 such bar ; but they may, notwithstanding, have a material effect 
 in deciding upon particular claims which may be asserted in the 
 course of the settlement of the partnership accounts. Of course, 
 I do not mean to say that laches and lapse of time constitute no 
 bar in any case in which the statute does not constitute one. 
 Where the statute is a bar there is no need of any bar for laches 
 or lapse of time. The latter bar peculiarly applies where the 
 former does not. What I mean to say is, that if the cause of 
 action- be one to which the statute applies, but the lapse of time 
 since it accrued be not such as to bring the case within the statute, 
 laches and lapse of time cannot in themselves constitute a bar to 
 the suit." 
 
 The Effect of Laches. 
 
 § 23. We have already remarked that in certain cases courts of 
 equity deline to act, because of their own inherent doctrine not to 
 entertain stale demands, and not to encourage laches and negli- 
 gence. An instance of the application of this rule is found in, 
 matters of account, wherein, although not barred by the statute of 
 limitations, these courts refuse to interfere after a considerable 
 lapse of time, from considerations of public policy, from the diiE- 
 culty of doing entire justice, when the original transactions have 
 become obscure by time, and the evidence may be lost, and from 
 
 ' Booker's Adm'r v. Booker's Eep., 29 Grat. 605; Hale et al v. Pack's Ex' ore, 
 10 W. Va. 145; BiU v. Schilling, 39 W. Va. 108. The staluU is a rule of law, 
 while the presumption is a rule of evidence, and the two may and do consistently 
 co-exist; the former is ineffectual unless specially plead, hut the latter may govern 
 court or jury in regarding the evidence. Field v. Bro\7n, 24 Grat. 93; Angel on 
 Limitations, 310; 5 Kob. Pr. 250. 
 
§ 23 THE EPrECT Of LACHES. 91 
 
 the consciousriess that the repose of titles and the security of 
 property are mainly promoted by a full enforcement of the maxim, 
 vigilantibus non dormientibus jura subveniunt. And it is a familiar 
 doctrine of courts of equity that nothing can call them into activty 
 but conscience, good faith, and reasonable diligence ; and when 
 these are wanting the court is passive and does nothing.^ 
 
 ' Harrison et ah v. Gibson et als, 23 Grat. 223; Brown v. County of Buena Vista, 
 95 U. S. R. 160, 161; Baker v. Morris's Adm'r, 10 Leigh, 315; Stamper's Adm'rti. 
 Gamett et als, 31 Grat. 550; Justis v. English et als, 30 Grat. 576; Crawford's 
 Ex" or V. Patterson, 11 Grat. 364; Evans et als v. Spurgin et als, Id. 615; Noye v. 
 Viokers, 39 W. Va. 30. 
 
 This doctrine is based upon grounds of public policy, and its aim is the discour- 
 agement, for the peace and repose of society, of stale and antiquated claims. The 
 party who has been guilty of inexcusable negligence and inattention to his interests 
 "looses his rights, because from stupidity, indifierence, convenience, or some other 
 cause, he has failed to assert them. His laches cannot be made available to him 
 through a visitation of wrong and disaster to hundreds of others. The laws are 
 not for the individual alone, they are also for the peace and safety of the whole 
 State." Am. & Eng. Encyclopedia, Vol. 12, p. 534 et seq, and notes. 
 
 The rules as stated in the text have found application in the following cases: 
 
 A judgment creditor who stood by and saw his debtor's land sold without assert- 
 ing his claim, and failed to do so for many years, was denied the right to subject 
 the land in the hands of an innocent purchaser. Henry & Blackwell, Trustees, v. 
 Ould & Carrington, Virginia Law Journal, 1883, p. 54. 
 
 A bOl to sell land was filed in 1852. In 1858 the land was sold and the sale 
 confirmed, and an order of referernce made to ascertain the mipaid purchase 
 money. The war came on and the Federal troops occupied the commissioner' s 
 office and some of his papers were scattered and destroyed. The purchaser sold a 
 part of the land to his son, and afterwards became a bankrupt. In 1876, after the 
 death of the executors of the original owner his devisees brought an action of 
 ejectment to recover the land. A bill was filed to restrain the prosecution of this 
 action and it was maintained on the ground of the laches of the parties who 
 brought the ejectment action. Hatcher et al v. HaU et als, 77 Va. 573. 
 
 In 1855 on6 qualified as guardian and some time thereafter sold some slaves. In 
 1857 there was an order for this guardian to transfer the assets of the ward to a 
 foreign guardian. He was alleged afterwards to have given his note in settlement 
 of his guardianship account, which note was burned up. Partial payments were 
 made on the note and it did not appear that the domestic guardian had transferred 
 the property as directed. It was held "under the circumstances of this case, 
 wherein by lapse of time, laches of the parties, loss of evidence and the death of 
 the parties, an accurate investigation of the facts was impossible and every pre- 
 sumption was agaiust the claim of the plaintiffs; they were entitled to no relief." 
 Hill V. Umberger, 77 Va. 653. 
 
 A bond was payable in October, 1847. Suit was brought on it in 1876. The 
 
92 LIMITATION TO SUITS IN EQUITY. § 23 
 
 But even in these cases there may be excuses sufficient to justify 
 
 the delay, upon consideration of which the courts of equity will 
 
 not refiise their aid.' 
 
 'Story's Equity Jurisprudence, Vol. 1, § 529 to ? 1520a; Fonbl. Eq., B. 1, 
 Cli. 4, ? 27 and notes; 2 Lomax on Ex'ors, 488; Carr's Adm'rst). Chapman's Lega- 
 tees, 5 Leigh, 164; Perry on Trusts, § 869, notes; Jereniy on Eq. Juris., B. 3, 
 Pt. 2, Ch. 5, pp. 549, 550; 1 Madd. Ch. Pr., 79, 80; Holcomb v. Kives, 1 Ch. Cas. 
 127; Jason v. Toulmin, 9 Ala. 662; Brown v. County of Buena ViSta, 5 Otto, 160; 
 Sample v. Barnes, 14 How. 70; Walker et cd v. Bobbins et at, Id. 584; Creath's 
 Adm'r v. Siroms, Id. 192; Bateman v. WOloe, 1 Soh. & Lef. 201; Murray v. 
 Graham, 6 Paige, 622; CaUaway v. Alexander, 8 Leigh, 114; Powell v. Stewart, 
 17 Ala. 719; Riddle v. Barker, 13 Cal. 295. Ignorance of rights excuses laches. 
 Jameson v. Eixey, 94 Va. 342 ; Kelly v. McQuinn, 42 W. Va. 774. 
 
 twenty years limitation act took effect as to bonds executed prior thereto, on July 1, 
 1850. Then excluding the time from April 17, 1861, to January 1, 1869, the right 
 of action was not barred by the statute and the defence of laches was regarded as 
 not sustainable. Updike's Adm'r el al v. Lane, 78 Va. 132. See also Cole's 
 Adm'r v. Ballard, Id. 139, where under simUar circumstances the statute of limit- 
 ation was held to be inapplicable and the presumption of payment from lapse of 
 time was rebutted by proof of intei'est payments and other circumstances. 
 
 The testator died in 1842. His administrator made five settlements, the last in 
 1852. Land which was unpaid for at the testator's death had passed to his heirs. 
 In 1877 suit was brought by the distributees against the administrator and his 
 sureties. Held, that the statute of limitations barred the suit against the sui-eties 
 and the defence of laches was good to the administrator. Castleman's Adm'r jj. 
 Dorsey et ah, 78 Va. 342. 
 
 The powers of a guardian were revoked in October, 1852, and a new guardian 
 appoiuted. The female ward married in January, 1856, and became of age April 
 16, 1860. The male ward died in January, 1859, under age. A bUl to settle the 
 guardian's accounts was filed September 18, 1877, and amended October 22, 1877, 
 so as to make the personal representative of the first guardian a party. Held, 
 that the time from April 17, 1861, to January 1, 1869, being eliminated, the 
 statute did not apply and the defence of laches was not sustained. Morrison's 
 Ex'r V. Householder's Adm'r, 79 Va. 627. 
 
 The transactions most called in question occurred in 1850 and remained unques- 
 tioned for more than thirty years; the court dismissed the biU, holding that "where 
 the statute of limitations has no direct application a defence may, in a court of 
 equity, be founded on mere lapse of time and staleness of claim." Bell and Wife 
 V. Moon, Com., &c., 79 Va. 341. 
 
 In Wissler v. Craig's Adm'r, 80 Va. 29, the court repeats what is said in Han-i- 
 son V. Gibson, 23 Gratt. 212, that when from delay no correct account could be 
 taken and any conclusion to which the court arrived must, at best, be conjectural, 
 and the original transactions have become so obscured by lapse of time, loss of 
 evidence and death of parties as to render it difficult to do justice, the courts will 
 not relieve the plaintiff." 
 
§ 23 THE EFFECT OF LACHES. 93 
 
 The rule, as we have stated it, may be applied to the whole 
 subject of relief in equity against judgments at law as already 
 treated of in this book;' where all the grounds of action had oc- 
 
 ' Ante, Ch. 1 §? 5, 6, 7, 8, 9, 10, 11, and 12; Brown v. County of Buena Vista, 
 5 Otto, 160; Leading Cases in Equity, Vol. 2, Pt. 2, pp. 1372, 1373. 
 
 In Perkins v. Lane, 82 Va. 59, there was lapse of time, death of parties, de- 
 struction of bonds and loss of papers, and as there could no longer be a safe deter- 
 mination of the controversy, it was held that the status quo should not be disturbed. 
 (See also Perdue' s Adm'r v. Dillon, 89 Va. 186.) 
 
 Land was purchased in 1840 and paid for in 1850, and in 1881, after the death 
 of the purchaser, a resulting trust was sought to be established, but it was held 
 that laches should defeat the claim. Morgan et als v. Fisher's Adm'r, 82 Va. 417. 
 
 In Gibbone/s Ex'x v. Kent et als, 82 Va. 383, the court refused to entertain a 
 bin to disturb an account "eighteen years from his first settlement — sixteen years 
 after his final and recorded settlement, and after the turmoil and destruction of 
 four years of civil war and the long period of durance vile which Jollowed in its wake." 
 
 In Turner's Adm'r v. Dillard's Ex' or, 82 Va. 537, it appeared that the executor 
 qualified in 1840 and completed all his dealings with the estate in 1850. In 1865 
 the United States troops took possession of his property and burned it and de- 
 stroyed his vouchers. The suit for an account was brought in 1878, and shortly 
 after the institution of the suit both plaintifi" and defendant died. In the opinion 
 of the court Judge Lacy uses the clear language of Judge Allen in Caruthers v. 
 Trustees of Lexington, 12 Leigh, 219, "If, from the delay which has taken place, 
 it is manifest that no correct account can be rendered, that any conclusion at 
 which the court can arrive must be at the best conjecture, and that the original 
 transactions have become so obscured by time or the loss of evidence, and the death 
 of parties, as to render it difficult to do justice, the court will not relieve. The 
 plaintiff must satisfy the comrt that it can extend relief without hazard of doing 
 injustice to the defendant." 
 
 It should be remembered that length of time alone is not a test of staleness 
 (PasonaU v. Hinderer, 28 Ohio St. 568, 580. Am. & Eng. Encyc, Vol. 12, p. 534), 
 and mere lapse of time unaccompanied by some circumstance affording evidence of 
 a presumption that the right has been abandoned is not laches (Cole's Adm'r v. 
 Ballard, 78 Va. 139 ; Whitlock v. Johnson, 87 Va. 333). But where great length 
 of time has elapsed the plaintiff must both satisfy the court from the circumstances 
 of the case that he had not abandoned his rights and he must also " satisfy the 
 court that it can extend relief without hazard of doing injustice to the defendant." 
 (Caruthers v. Trustees of Lexington, 12 Leigh 619). The circumstances which 
 overcome the presumption of payment are regarded as sufiicient to overcome the 
 presumption of abandonment (Nelson t>. Carrington, 4Munf. 332; Tunstall's Adni'r 
 V. Withers et als, 86 Va. 900; Cole's Adm'r v. Ballard, 78 Va. 139, 147); and the 
 cases cited in this note indicate the circumstances under which the courts will 
 determine whether or not relief may be given without hazard of doing injustice 
 to the defendant. It is not often, however, that the circumstances of one case wUl 
 
94 LIMITATION TO SUITS IN EQUITY. § 23 
 
 curred between twenty and thirty years ago, and the alleged 
 breach of trust had taken place thirty-seven years before the 
 bill was filed, and the trustee was dead ;' where after the lapse 
 
 'Humef. Beale's Executrix, 17 Wallace, 336. See also Stamper's Adm'r v. 
 Gamett et ah, 31 Grat. 550. 
 
 exactly fit those of another. It must also be remembered that the obligation of 
 diligence is not performed by bringing the suit, for ' ' the mere institution of a suit 
 does not of itself relieve a person from the charge of laches; and if he fail in its 
 diligent prosecution the consequences are the same as though no action had been 
 begun." Johnston v. Standard Mining Co., 148 U. S. K. 360. See also Dismal 
 Swamp Land Co. v. Macaule/s Adm'r, 85 Va. 16. 
 
 A bUl to surcharge and falsify ex parte settlements was filed twenty-five years 
 after the death of the administrator whose acts were complained of, and seventeen 
 years after his accounts were closed by subsequent administrators. Held that lapse 
 of time should be treated as a bar to the suit. Green's Adm'r et al v. Tompson et al, 
 84 Va. 377. 
 
 The general rules on this subject are stated in Fowler v. Lewis' Adm'r, 36 
 AV. Va. 135, and m Bill v. Schilling (19 S. E. R. 514), 39 W. Va. 108; and in 
 Whittaker v. Improvement Co. , 34 W. Va. 229, the decided cases in W. Va. upon 
 this subjct are coUected and discussed. See also Trader v. Jarvis, 23 W. Vau 100, 
 where it is held that "delay in the assertion of a right, unless satisfactorily ex- 
 plained, even where it does not constitute a positive statutory bar, operates in 
 equity as an evidence of acquiescence or waiver; and especially is such the case in 
 suits to set aside transactions on account of fraud or infancy." 
 
 In Bryant v. Groves, W. Va. (24 S. E. K. 605), it was held that where lapse 
 of time is suflicient to raise the presumption of assent, acquiescence, or waiver on the 
 part of the plaintiff, or those under whom he claims, he cannot recover unless he 
 rebuts such presumption by a reasonable and satisfactory excuse for the delay in 
 the assertion of his rights, not founded on his own laches or neglect 
 
 But laches, being inexcusable delay, which implies knowledge or means of 
 knowing ones rights, is not to be imputed to one of unsound mind. Trowbridge v. 
 Stone's Adm'r, W. Va.; 26 S. E. R. 364. 
 
 The following review, I believe, of all the earlier Virginia cases on this subject, 
 is taken mainly from a note of Hon. R. H. Turner, late Judge of the 12th Judicial 
 circuit of Virginia : 
 
 An account refused because the transactions were stale. Randolph's Ex'ors. 
 Randolph's Ex'ors, 2 Call. 537; 1 H. & M. 181; citing Henly v. Dinwoody, 4 B. 
 C. C. 258. 
 
 Acts of assent and acquiescence, great lapse of time, death of witnesses, and 
 loss of documents rendered the taking of an account unjust, even though it might 
 properly have been done if commenced in time. The delay here was about twenty 
 years. Boiling v. Boiling et ah, 5 Munf. 340. 
 
 A suit to settle a partnership twenty years after it was formed. No order for 
 nine years. Defendant died one yeai- after suit. BUI dismissed with costs. Cole- 
 
§ 23 THE EFFECT OF LACHES. 95 
 
 of ten years the creditor of a railroad company filed a bill to 
 set aside as illegal a compromise made between the company 
 and a city, by which the company restored to the city certain 
 
 man v. Lynes' Ex., 4 Rand. 454; citing Lacon v. Briggs, 3 Atk. 105; Ray v. Bogart, 
 2 John. Cas. 432; EUison v. Moffat, 1 John. Ch. R. 46. 
 
 "The salutary influence upon the peace and repose of society of the principle 
 which forbids us to encourage stale claims or to unravel long settled accounts." 
 Approved by the coirrt; but held that the account could be opened when it was 
 settled in 1810; the legatee of £500 was dead, and there was no administration on 
 her estate until 1822; her distributee was alive then, but died in 1816; bill filed in 
 1818. BurweU's Ex' or v. Anderson's Adm'r, &c., 3 Leigh, 353. 
 
 BUI by Legatees of A against Ex' ors and Legatees of B, who was Ex' or of A, 
 for account of B's administration of A's estate. B's executor being himself one of 
 A's legatees, and so a party in interest with the plaintiff. No account of B's 
 administration of A's estate had ever been settled. This bill filed twenty-eight 
 years after B' s death, and from twelve to twenty years after the yovingest plaintiff 
 attained to full age, and the accounts called for involved ancient and complicated 
 transactions. Held that the great lapse of time was a sufficient objection to the 
 relief prayed by the bill against the representatives of the first executor, especially 
 under circumstances showing that nothing was probably due, and that from loss of 
 papers and evidence the accounts could not be fairly settled. Carr's Adm'rs and 
 Legatees v. Chapman's Legatees, 5 Leigh 164; citing Smith v. Clay, reported in a 
 note to Deloraine v. Brown, 3 Bro. C. C. 639, wherein the leading case, decided 
 in May, 1767, is referred to, where Lord Camden says, "A court of equity, which 
 is never active in relief against conscience or public convenience, has always refused 
 its aid to stale demands where the party has slept upon his rights and acc[uiesced 
 for a great length of time. Nothing can call this court into activity but con- 
 science, good faith and reasonable diligence; where these are wanting, the court is 
 passive and does nothing." Also Pickering v. Lord Stamford, 2 Ves. Jr. 282, 
 where the Master of the Rolls says of Lord Camden's opinion in Smith v. Clay: 
 "There is a great deal of sound doctrine laid down with regard to parties neglect- 
 ing to prosecute their rights, in a manner which very much distinguishes the 
 decrees of that noble lord." 
 
 In Hercy v. Dinwoody, 2 Ves. Jr. 87 (also cited mpra), the bill was regularly 
 filed and answered; it remained in court with but few farther proceedings, and 
 thirty-three years after, the executors bemg dead, the bill was revived against 
 their representatives and devisees. The account was refused and the biU dis- 
 missed. Here it was contended that the matter being in suit, and the defendant 
 called to account, they could not discharge themselves by a payment or settlement 
 in pais, and therefore that case was not open to the presumption applicable to 
 others; but the Master of the RoUs, admitting this, said: "For the reasons given 
 in Deloraine v. Browne, 3 Bro. C. C. 633, independent of the question of satisfaction, 
 but on account of the very neglect, and the mischief and disturbance that may 
 arise to families, though the presumption of satisfaction is not so strong; yet the 
 laches and neglect may be such as to make it a matter of public policy that the 
 party guilty of it shall abide by the consequences." 
 
96 LIMITATION TO SUITS IN EQUITY. § 23 
 
 bonds issued by it for the company's benefit ; ^ where a bill was 
 filed to investigate transactions which occurred thirty years 
 before the institution of the suit, and from the lapse of time 
 
 ' New Albany v. Bm-ke, 11 Wallace, 96. 
 
 In Hayes et als v. Goode et ah, 7 Leigh, 452, it was held that a great lapse of 
 time before suit by legatees,, together with remissness in prosecuting it afterwards, 
 was a sufficient reason for refusing to entertaia the bill against representatives and 
 sureties, especially as the circumstances appearing in the case tended to show that 
 the debts due from the testator were sufficient to exhaust his slaves and personal 
 estate. In this case land devised had been decreed to be sold to pay a debt of the 
 devisor in 1797, and the devisee immediately sold the land and paid the debt. In 
 1824 the devisee filed a bUl insisting that both the testator' s personal estate and 
 the lands descending to the heirs were liable to pay the debt in ease of the mort- 
 gaged premises. Held, that after so great a lapse of time the claim could not be 
 admitted, but must be rejected as stale. 
 
 In Atkinson v. Kobinson, 9 Leigh, 396, the court held that, even if it were 
 clearly proved that the decedent, B. E., had, in the last hours of his life, ac- 
 knowledged that the debt to S. , which the complainant claimed bad not been fully 
 discharged, yet the amount remaining due was uncertain and could only be ascer- 
 tained by a settlement of accounts in reference to transactions more than twenty- 
 seven years old at the commencement of the suit, and then of more than thirty- 
 seven years' standing. Such an account ought not to be decreed; for every claimant 
 who asks relief of a court of equity ought to exhibit his claims within a reasonable 
 time, so that in giving him a decree, the court may not do injustice to the defendant. 
 
 Baker v. Morris' s Adm' r, 10 Leigh, 284. In a suit in equity to enforce pay- 
 ment of a debt evidenced by a bond twenty-eight years after the right to demand 
 it accrued; held, upon the circumstances of the case, accounting for the long delay 
 to prosecute the claim, the plaintiff is entitled to relief, notwithstanding the delay. 
 The answer acknowledged that the debt was not paid, and coverture during a great 
 portion of the time was regarded as a circumstance sufficient to account for and 
 excuse the delay. 
 
 In Caruthers' Adm'rs v. Trustees of Lexington, 12 Leigh, 617, Judge Allen 
 said . "It seems to me that after the great lapse of time which has accrued, the 
 death of all the parties who could throw light on the transactions, and the impos- 
 sibility, with the scanty materials before us, to settle the account correctly, the 
 court below, upon the coming in of the commissioners' report, ought to have dis- 
 missed the bUl. The lottery was drawn in 1805; the roads to which the money 
 was applied appear to have been completed in 1808 or 1809. From that period 
 until 1817, when Caruthers died, the commissioners of the lottery seemed to have 
 concerned themselves no further with the matter, except to file an answer in 1811 
 to a bUl of Smith & Lyle. In 1808, the last meeting of the commissioners, of 
 which we have any evidence, took place; and then a committee was appointed to 
 settle Caruthers' account with the lottery. And twenty-two years afterwards, and 
 thirteen years after the death of Caruthers, this suit is brought." The cases cited 
 
§ 23 THE EFFECT OF LACHES. 97 
 
 and the obscurity of the trqpsaction, it was impossible to ar- 
 rive at the truth of the case ; ^ where a bill was filed against 
 
 ' Pagei &c. V. Booth, 1 Eob. E. 170. 
 
 are Pickering v. Lord Stamford, 2 Ves. Jr. 583; Carr's Adm'ri). Chapman's Lega- 
 tees, 5 Leigh, 164, 178; Hayes v. Goode, 7 Leigh, 452; Atkinson v. Eobmson, 9 
 Leigh, 393, 396. 
 
 In Page, &c. v. Booth, 1 Eob. E. 170, the property passed into the hands of 
 third persons thirty years before the suit, and the court thought that the presump- 
 tion of satisfaction was not the only consideration which operates on a court in 
 refusing to entertain such a bill, but laches and neglect make it a matter of public 
 policy that the party guilty of it shall abide the consequences. Citing Deloraiue 
 V. Brown, 3 Bro. C. C. 633. 
 
 Macaula/s Ex' or v. Dismal Swamp Laud Co., &c., 2 Eob. 507. The account 
 was refused where there was a delay of twenty years in calling the trustees and 
 the purchaser' s executor to an account. 
 
 MarsteUer v. Weaver's Adm'r, 1 Grat. 400. A partnership formed in 1824 was 
 dissolved in 1826. W., who kept and retained the books, collected debts as late 
 as 1828. He died in 1831, and his wife (adm'x) collected several smaU debts to 
 the firm. The survivor and the adm' x tried to settle and failed. In 1835 the suit" 
 was brought. Weaver in his lifetime had declined to settle. The account was 
 ordered. 
 
 In Anderson's Adm'r, &c. v. Bur well's Ex' or, 6 Grat. 405, it was held, that 
 independent of the probability of the payment of the legacies, the lapse of time 
 (fifty years) was an insuperable bar to the claim. 
 
 Smith, &c. V. Thompson's Adm'r, 7 Grat. 112. Suit after twenty-three years 
 from date of a bond of indemnity. Held that, without regard to the convictions 
 of the court as to the original justice of the claim, lapse of time, laches, negli- 
 gence, and the rules of public policy in such cases, forbade the recovery. 
 
 Hillis V. Hamilton's Adm'r, 10 Grat. 300. Suit for an account of administra- 
 tion twenty-six years after death of intestate, and twenty-five years after death of 
 the administrator. The claim was held to be stale. 
 
 Crawford's Ex' or v. Patterson, 11 Grat. 364. BiU by husband and wife against 
 executors and widow for settlement of administration account, &c. The report 
 was returned in March, 1824, and not excepted to; and the case lay from that time 
 to June, 1847, when the executors and the widow are dead. Held, too late to 
 revive the suit, and have the report recommitted and reformed. 
 
 Jackson's Adm'r v. King's Adm'r, 12 Grat. 499. The doctrine of laches applied 
 to an efibrt to make a debt out of the estate of a deceased partner, where the 
 creditor had been guilty of laches in his efforts to make the debt out of the sur- 
 viving partner. 
 
 Peers v. Bamett, 12 Grat. 410. Bill filed in 1834 to sell land for the purchase 
 
 money lien. Objected that the title had not been perfected. The cause lingered 
 
 until 1852, partly through the fault of the vendee. Held that, although the 
 
 objection would have been good in 1834, yet in the meantime undisturbed pos- 
 
 7 
 
98 LIMITATION TO SUITS IN EQUITY. § 23 
 
 the heirs and personal representatives of ,a trustee for waste and 
 misapplication of the trust fund, which occurred more than forty 
 
 session, and no assertion of adverse claim, quieted the title. The objection was 
 unavailing, and the sale proper. 
 
 Tazwell's Ex' or v. Whittle's Adm'r, 13 Grat. 353. Suit brought in 1825. In 
 1827 an order for the settlement of accounts of L. T.'s ex' or. A deposition was 
 taken in that year. In 1829 an order for an account was placed in the hands of 
 the commissioner. Report made in 1834. In 1841 leave was given to file an 
 amended bUl, which was filed a year after. In 1846 there was an order to take an 
 account of what was due to Whittle. Final decree in 1853. Held, that the bill 
 should be dismissed on the ground of laches, the proper parties to make a settle- 
 ment being long ago dead. 
 
 Tazewell's Ex' or v. Saunders, 13 Grat. 354. The laches which will defeat the 
 prosecution of a claim must be such as aflbrd a reasonable presumption of the 
 satisfaction or abandonment of the claim, or such as present a proper defence, by 
 reason of the death of parties, loss of evidence, or otherwise. 
 
 Doggett V. Helm, &c. , 17 Grat. 96. A case where a bUl for land warrants issued 
 for services in the revolutionary war was dismissed on the ground of laches and 
 lapse of time. The court quotes the language of Lord Camden, in Smith v. Clay, 
 Ambler B. 645, supra, and cites Wagner, &c. v. Baird, &c., 7 How. 234; Carr's 
 Adm'r, &c. v. Chapman's Legatees, 5 Leigh, 104; Hayes v. Goode, 7 Id. 452; 
 Atkinson v. Kobinson, 9 Id. 393, and Caruthers' Adm'r v. The Trustees of Lex- 
 ington, 12 Id. 610. 
 
 Foster' s Curator v. Kison et al, 17 Grat. 321. The statute of limitations, and 
 the doctrine of laches, and lapse of time applied to the settlement of the affairs of 
 partnerships. 
 
 Bargamin et als v. Clarke et ok, 20 Grat. 544. The trustee in a deed of trust, 
 who was also the executor of the creditor secured, takes possession of the land 
 conveyed to .him, and holds the same undisturbed for twenty-eight years, although 
 there has never been any sale under the trust. Held, that the heirs of the original 
 grantor are bound as to any claim they may set up. 
 
 Harrison et ah ti. Gibson et alt, 23 Grat. 223. The cases do not fix any period as 
 limiting the demand for an account. If, under the circumstances of the case, such 
 as loss of evidence, death of parties, &c., it is too late to ascertain the merits of 
 the controversy, the court will not interfere, whatever may have been the original 
 justice of the claim. 
 
 Carter, Trustee, &c. v. McArtor et als, 28 Grat. 356. BUl brought to correct a 
 mistake fourteen years after its discovery, and six years after it was ascertained 
 that the other security for the payment of the bond was insuiEcient; held to be 
 laches, and relief refused. 
 
 Rowe V. Bentley, 29 Grat. 763. Delay in assertion of rights held to have been 
 sufficiently accounted for by the occurrence of the war, and the obstruction occa- 
 sioned thereby; the partial suspension of legal remedies by statute for eight years; 
 the disabilities under which the claimants labored, and the lack of knowledge of 
 their rights. Held further, that acquiescence cannot be imputed in the absence of 
 all knowledge of the facts of which it is predicated. In this case there were no 
 
§ 24 WHERE THERE IS FRAUD. 99 
 
 years before the suit ; ' where although it was doubtful whether 
 the transaction was a mortgage or a conditional sale, yet for thir- 
 teen years, and after the death of the other party, it Was acquiesced 
 in as a sale.^ 
 
 In some cases the courts have refused relief upon the ground 
 that lapse of time afforded a presumption of the abandonment of 
 the right claimed. In such cases, where the presumption is out- 
 weighed by opposing circumstances, lapse of time will not defeat 
 the right.' 
 
 The existence and continuance of civil war, and the interrup- 
 tion of judicial proceedings consequent thereon, have been held to 
 sufficiently account for delay in cases in which the party asking 
 relief had apparently been guilty of laches.* 
 
 Where there is Fraud. 
 
 § 24. In the case of Badger v. Badger, 2 Wallace, 92, Justice 
 Grier, in delivering the opinion of the court, quotes Lord Erskine 
 as saying : " No length of time can prevent the unkennelling of a 
 
 ^ Harrison et als v. Gibson et ah, 23 Grat. 218. 
 
 'Eoberts' Adm'r v. Cocke, Ex' or, &c., 1 Kand. 121; Boiling u Boiling et afe, 
 5 Munf. 334. 
 
 'Nelson v. Carrington, &c., 4 Munford, 343; Waters v. Travis, 9 John. R. 466; 
 Gamett, &c. v. Macon, &c., 5 CaU. 333; Bell v. Wood, 94 Va. 683; TunstaU's 
 Adm'r v. Withers, 86 Va. 892. 
 
 * Byrne and Wife v. Edmonds, 23 Grat. 211; Stamper's Adm'r v. Gamett et ah, 
 31 Grat. 550. 
 
 complicated accounts to settle, and the parties to the transaction were aU alive and 
 testified in the case. 
 
 Justis V. English et ah, 30 Grat. 577. Coverture held an excuse sufficient to 
 overcome the defence of limitations, lapse of time, alleged acquiescence, or imputed 
 laches. 
 
 Stamper's Adm'r v. Gamett et ol, 31 Grat. 550. Bill filed in 1871 to require the 
 settlement of an administration account where the testator died in 1852; the 
 executor died in 1853; and the admmistraior de bonu non, whose accounts are 
 sought to be settled, died in 1857. Held that, because of the death of all the 
 parties cognizant of the transaction, the destruction of the records of the county, 
 and loss of papers, an account of administration of the estate could not be settled 
 without great danger of injustice to the deceased administration, and the relief 
 sought was refused. Burks and Staples J. J. dissented. 
 
100 LIMITATION TO SUITS IN EQUITY. § 24 
 
 fraud ; " and also the emphatic language of Lord Northington : ' 
 " The next question is, in effect, whether delay will purge a fraud ? 
 Never while I sit here ! Every delay adds to its injustice, and 
 multiplies its oppression." 
 
 Justice Story thus states the doctrine : ^ "It is certainly true 
 that length of time is no bar to a trust clearly established ; and 
 in a case where fraud is imputed and proved, length of time ought 
 not, on principles of eternal justice, to be admitted to repel relief. 
 On the other hand, it would seem that the length of time during 
 which the fraud has been successfully concealed and practiced is 
 rather an aggravation of the offence, and calls more loudly upon 
 ■ a court of equity to give ample and decisive relief." 
 
 In cases ' decided since that of Badger v. Badger, the Supreme 
 Court of Appeals of the United States has reaffirmed the doctrine 
 as it is there stated ; but it is also held, that where there is a 
 statute fixing a limit to a right of action because of fraud, courts 
 of equity will, by analogy, follow the statute.^ 
 
 The same views prevail in Virginia f but, as will be presently 
 seen, the statute limiting the right to set aside a voluntary convey- 
 ance has been held not to be applicable to cases of actual fraud.' 
 
 It must not be supposed, however, that there is no limitation to 
 a suit to set aside a fraudulent transaction ; for the principles of 
 
 ' Alden v. Gregory, 2 Eden, 285. 
 
 ' Prevost V. Gratz, 6 Wheaton, 481. 
 
 ^ Brown v. County of Buena Vista, 5 Otto, 160; Clarke v. Bowman's Ex'ors, 18 
 WaUace, 493. See also 2 Story's Eq. Jurisd., §§ 1521, 1522. 
 
 * Burke v. Smith, 16 Wallace, 401. But whUe at law the statute of limitations 
 prevails whether there has been fraud or not, in equity by fraudulent concealment 
 a defendant is held to have forfeited his right to set up the statute of limitations 
 during the term of the statute. See Am. & Eng. Encyc. of Law, Vol. 13, p. 727 
 and cases cited in the notes. But as to the rules in Vii-ginia even in actions at law 
 see 1 Bart. Law Pr., p. 73 and note : " At aU events in equity, in cases of mistake, 
 as in cases of fraud, the statute does not begin to run untU the discovery of the 
 mistake." Eowe v. Bentley, 29 Grat. 760; Massie v. Heiskell, 80 Va. 789. 
 
 6 2 Minor's Institutes, p. 515; 1 Lomax's Digest, 813; Cresap v. McLean, 5 
 Leigh, 389. 
 
 « Snoddy v. Haskins, 12 Grat. 363; Wilson v. Buchanan, 7 Grat. 334; Himan v. 
 Thorn, 32 W. Va. 507. 
 
§ 25 VOLUNTARY OR FEAUDtJLBNT CONVEYANCE. lOl- 
 
 laches, upon which courts of equity act, forbid them from giving 
 relief when the party asking it has for a very long time known 
 his rights, and has slept upon them, as well when he has sufiered 
 from fraud as from any other cause.' 
 
 It may be regarded, therefore, as settled, at least in equity, that 
 the cause of action against a fraudulent proceeding arises as soon 
 as the fraud is discovered, and consequently the limitation com- 
 mences to run at the same time.^ The same rule prevails also in 
 cases of mistake.^ 
 
 Where there has been a Voluntary or Fraudulent Conveyance. 
 
 § 25. The statute* of Virginia prescribing a limit to the right 
 to set aside a conveyance because voluntary, was as follows : 
 
 " No gift, conveyance, assignment, transfer, or charge, which is 
 not on consideration deemed valuable in law, shall be avoided, 
 either in whole or in part, for that cause only, unless within five 
 years after it is made" suit be brought for that purpose, or the 
 subject thereof, or some part of it, be distrained or levied upon 
 by or at the suit of a creditor as to whom such gift, conveyance, 
 assignment^ transfer, or charge is declared to be void by the second 
 section of the one hundred and fourteenth chapter." 
 
 But for this section the limitation would commence to run from 
 the time the title or cause of action accrued, which would be when 
 a creditor's judgment or execution was delayed, hindered, or de- 
 
 ^ Harwood v. Eailroad Company, 17 Wal. 78. 
 
 ''Story's Equity Jurisd., | 1521; Brookshank v. Smith, Younger & Cole, 68; 
 Blair u Bromley, 5 Hare, 542; 2 Minor's Institutes, p. 515; Badger v. Badger, 2 
 Wallace, 94; Brown v. County of Buena Vista, 5 Otto, 160; Cresap v. McLean, 5 
 Leigh, 389; 1 Bobinson's Practice (new ed.), 630; Kowe v. Bentley, 29 Grat. 760; 
 Massie's Adm'r v. HeiskeU's Trustees et ah, 80 Va. 804. For coUeetion of decided 
 cases on this subject see 60 Am. Dec., p. 511 et seq ; notes ; Am. & Eng. Encyc. of 
 Law, Vol. 13, p. 680 et seq. ■ 
 
 ' Daniel's Chancery Practice, Vol. -1, p. 645. 
 
 *Codeof Va., 1873, Ch. 146, § 16. ' Now, Code, ? 2929. 
 
 5 McCue V. McCue, 41 W. Va. 151; 23 S. E. K. 689. 
 
102 LIMITATION TO SUITS IN EQUITY. § 25 
 
 frauded by the operation of the voluntary conveyance,' except in 
 cases where the fraud was not known.^ 
 
 Now the statute of Virginia' has substituted for the words 
 " after it is made " the words " after the right to avoid the same 
 has accrued ; " but the statute of West Virginia * remains as the 
 law formerly was in Virginia. This change was caused by reason 
 of the hardship suggested by the case of Bickle v. Chrisman, 76 
 Va. 678, and the facts there made apparent that under the law as 
 it then stood a voluntary conveyance would be good against a debt 
 which did not mature for more than five years after the convey- 
 ance was made. Now, also, in Virginia ° a creditor may sue to set 
 aside such a conveyance whether his claim be due and payable or 
 not, but this is not the law in West Virginia.^ 
 
 To fully understand this statute as it is in West Virginia and 
 formerly was in Virginia it is necessary to know the history and 
 effect of section second, chapter one hundred and fourteen of the 
 Code of Va., 1873, which are substantially the same as sections 
 one and two of chapter seventy-four of the Code of West Virginia 
 except that a provision as to preferences by an insolvent debtor 
 is now contained in the second section of chapter seventy-four of 
 the Code of West Virginia.' 
 
 It must be remembered, however, that against a deed fraudu- 
 lent in fact, that is, fraudulent for some other reason than merely 
 because it is voluntary, no bar is raised by the statute, and that 
 
 ' Lomax's Digest, Vol. 1, p. 813; Wilson v. Buchanan, 7 Grat. 334. Unless 
 there be some qualifying circumstance, as will presently be considered, the statute 
 begins to run from the date of the conveyance, transfer, &c. Sheppards v. Turpin, 
 3 G-rat. 373; Hunter's Ex'x v. Hunter ei al, 10 W. Va. 321. 
 
 ' Ante, I 24. 
 
 ^Code, §2929. 
 
 *CodeW. Va., Ch. 104, ? 14. 
 
 " Ckjde, I 2460 as amended by act of March 2, 1894, Acts 1893-4, p. 614. 
 
 * Code W. Va. , Ch. 133, § 2. This being so, it follows under the statute in 
 Virginia that the statute of limitations stUl begins to run from the time that the 
 voluntary deed is made. Posl, p. 112. 
 
 'See act of February 16, 1895 (Acts 1895, p. 12) amending § 2, Ch. 74, Code 
 West Virginia. 
 
§ 25 VOLUNTARY OE FRAUDULENT CONVEYANCE. 103 
 
 such cases are governed by the principles applicable to trusts/ 
 which are that the limitation begins to run from the time that the 
 fraudulent intent comes to the knowledge of the parties concerned, 
 or from the time that a creditor's execution or judgment is de- 
 layed, hindered, or defrauded by a voluntary conveyance/ when 
 the party has not slept upon his rights, but has exercised due dili- 
 gence in their assertion.^ 
 
 The statute referred to is as follows : 
 
 § 1. Every gift, conveyance, assignment, or transfer of, or 
 charge upon any estate, real or personal, every suit commenced, 
 or decree, judgment, or execution suffered or obtained, and every 
 bond or other writing given with intent to delay, hinder, or defraud 
 creditors, purchasers, or other persons of or from what they are or 
 may be lawfully entitled to, shall, as to such creditors, purchasers, 
 or other persons, their representatives or assigns, be void. This 
 section shall not affect the title of a purchaser for .valuable con- 
 sideration, unless it appear that he had notice of the fraudulent 
 intent of his immediate grantor, or of the fraud rendering void 
 the title of such grantor. 
 
 § 2. Every gift, conveyance, assignment, transfer, or charge 
 which is not upon consideration deemed valuable in law, shall be 
 void as to creditors whose debts shall have been contracted at the 
 time it was made, but shall not, on that account merely, be void 
 as to creditors whose debts shall have been contracted, or as to 
 purchasers who have purchased after it was made ; and though it 
 be decreed to be void as to a prior creditor, because voluntary, it 
 shall not for that cause be decreed to be void as to subsequent 
 creditors or purchasers.* 
 
 1 2 Minor's Inst., p. 515; Hutchison v. Boltz, 35 West Va. 754. 
 
 ' Wilson V. Buchanan, 7 Grat. 334; Snoddy v. Haskius, 12 Grat. 363. 
 
 = Ante, § 24, and Post, I 26. 
 
 * Judge Baldwin, in the opinion delivered by him in the case of Hunters v. 
 Waite, 3 Grat. 34 (before the date of the present statute), gives the substance of 
 the statute of 13 Elizabeth, as follows : "The English statute, enacted for the pro- 
 tection of creditors are 50 Ed. 3, Ch. 6; 3 Hen. 7, Ch. 4; and 13 Eliz., Ch. 5; the 
 
104 LIMITATION TO SUITS IN EQUITY. § 25 
 
 There can, of course, be but little difficulty about a case in 
 which the proof shows that the conveyance was made with the 
 deliberately formed intention to perpetrate a fraud; but a right 
 
 last of which is so broad as to render any particular notice of the two former 
 unnecessary. By the enacting clause of that statute, ' every feoffinent, gift, grant, 
 or conveyance, &o., of lands, tenements, hereditaments, goods, or chattels, or of 
 rents, &c. , out of the same, by writing or otherwise, and every bond, suit, &c. , 
 had or inade and contrived of malice, fraud, covin, collusion, or guile, to the intent 
 or purpose to delay, hinder, or defraud creditors of their just and lawful actions, 
 suits, debts, &c., shall be deemed and taken (only as against the person or persons, 
 &c., whose debts, suits, demands, &c., by such guileful and covinous devices and 
 practices as aforesaid, shall or might be in any wise distrusted, hindered, delayed, 
 or defrauded), to be clearly and utterly void, any pretence, color, feigned consider- 
 ation, expressing of use, or any other matter or thing to the contrary notwith- 
 standing." 
 
 This is plain language, and is clearly directed against conveyances or gifts made 
 with a fraudulent or covinous intent, and against none other; and its meaning is, 
 if possible, rendered more manifest by the terms of the proviso, thus condensed in 
 an act of 1785, 1 Bev. Code, 373: "This act shall not extend to any estate or in- 
 ■ terest in any lands, goods, or chattels, or any rents common, or profit out of the 
 same, which shall be upon good consideration, and bona fide lawfully conveyed or 
 assiu'ed to any person or persons, bodies politic or corporate." Good consideration 
 here obviously embraces any that is meritorious; whether valuable, such as money 
 or marriage; or good in a narrower sense, such as natural love and affection. ( 1 
 Story's Eq. 347.) But the consideration is important only because the absence of 
 it may warrant the imputation of fraud; the bcma fides, however, is all-important, 
 inasmuch as without it the transaction is null and void, whether with or without 
 consideration, or whatever may be the nature of the consideration." 
 To the text as thus given Judge Baldwin has added the following valuable note: 
 "Here is to be observed an important diflerence between the language of the 
 statute 13 Eliz. , which ours has followed, and that of the 27th Eliz. , from which 
 ours has departed. In the statute of 27 Eliz. , directed against frauds to the injury 
 of purchasers, the preamble speaks of purchasers for money or other good con- 
 sideration, and the enacting part declares that fraudulent conveyances shall be void 
 against purchasers for money, or other good consideration; but the proviso exempts 
 from the operation of the act conveyances for a good consideration and bona fide. 
 Upon that statute the English courts, after much difficulty and conflict of opinion, 
 have established the construction that all voluntary conveyances are void against 
 subsequent purchasers for valuable consideration, though with full notice thereof ; 
 thus treating the proviso as exempting only conveyances for valuable consideration. 
 But our statute (which embraces the subjects of the two statutes, 13 Eliz. and 27 
 Eliz. ) has no preamble, and the enacting part makes no mention of money, and 
 the proviso conforms to that of 13 Eliz. as well as that of 27 Eliz., which are 
 nearly identical. And in the construction of our statute this court has held that a 
 voluntary settlement upon the grantor's wife and children is good against a pur- 
 chaser for valuable consideration with notice thereof ; thus treating om: proviso as 
 
§ 25 VOLUNTARY OR FRAUDULENT CONVEYANCE. 105 
 
 understanding of the limitation imposed by the statute to the 
 right to avoid a voluntary conveyance, requires a consideration of 
 that fraudulent intent which the law presumes or concludes to 
 
 embracing voluntary conveyances founded upon a meritorious, though not valuable, 
 consideration, if made bona fide. Bank of Alexandria v. Patton, 1 Eob. E. 491." 
 
 In the case of Wallace v. Penfield, 106 U. S. B. 260, the supreme court of the 
 United States held that ^ deed which a man caused to be made to his wife for lands 
 whereon they resided, will not be set aside at the instance of his subsequent credit- 
 ors, it appearing that at its date, and when he paid for the lands and the improve- 
 ments which he afterwards erected thereon his property largely exceeded his debts, 
 and there was no intent to defraud. . 
 
 The doctrine with regard to the effect of fraudulent and voluntary conveyances 
 upon subsequent purchasers seems to be as follows : 
 
 A deed executed with intent to defraud a purchaser for value, is as void as to him 
 as it would be against a creditor, jind this whether the subsequent purchaser has or 
 has not notice of the prior fraudulent conveyance. 2 Minor's Institutes, 618; 2 
 Lomax's Digest, 453; Groch's Case, 5 Co. 60 b ; Doe v. Manning, 9 East. 59 ; 
 Evelyn v. Templar, 2 Bro. C. C. 148. But a deed void as to the creditors of the 
 debtor cannot affect an innocent purchaser for valuable consideration. Lockhard 
 & Ireland v. Berkley ei al, 10 W. Va. 87. "A voluntary conveyance, however 
 bona fide made, cannot be defeated by a subsequent voluntary deed, nor by a will; 
 for, as we have just seen, the purchaser whom the statute designs to protect is a 
 purchaser for value." 2 Minor's Institutes, 619; 2 Lomax's Digest, 459; Claver- 
 ing V. Clavering, 2 Vem. 473; VUlers j). Beaumont, 1 Vem. 100; Bolton d. Bolton, 
 3 Swanst. 414, note. 
 
 The proof of an actually fraudulent intent against a purchaser does not diSer 
 from that against a creditor; but the implication of fraud from a voluntary con- 
 veyance does differ essentially. The modem English doctrine is that, as to sub- 
 sequent purchasers for value, the subsequent sale conclusively proves (a conclusion 
 not to be repelled by any circumstance whatever) the previous voluntary gift to 
 have been made with a fraudulent intent. But the rule in Virginia, and indeed in 
 America generally, is that a subsequent sale for value after a prior voluntary con- 
 veyance, is only presumptive evidence of a fraudulent intent in ma kin g the prior 
 conveyance, and throws on those claiming under the prior conveyance the burden 
 of proving that it was madeicma fide. 2 Minor's Institutes, 619; 2 Lomax's Digest, 
 454; 1 Story's Eq., H30 to g 432; Bobinson v. Cathcart, 5 Peters, 264; Bank of 
 Alexandria v. Patton, 1 Bob. 500. 
 
 The fact of indebtedness at the time of the voluntary conveyance, so important 
 in considering its effect upon the rights of creditors, has no bearing whatever upon 
 the rights of a purchaser, for even if a fraudulent purpose against the former class 
 be conclusively proven, it cannot be regarded as indicating a similar purpose 
 against a purchaser. Bank of Alexandria v. Patton, 1 Eob. 539-40. 
 
 A mortgagee, a trustee in a deed of trust, or a creditor secured thereby, is a 
 purchaser for value within the meaning of the term as we have used it. Chapman 
 V. Emery, Cowp. 279; Wickham et al v. Lewis, Martin & Co., 13 Grat. 427; Evans 
 V. Greenhow, 15 Grat. 153. 
 
106 LIMITATION TO SUITS IN EQUITY. § 25 
 
 exist from a voluntary conveyance made by a party indebted at 
 the time. 
 
 In the case of Reade v. Livingston, 3 Johns. Chy. E. 500, 
 Chancellor Kent reached the conclusion, that if a party be indebted 
 at the time of a voluntary settlement, it is presumed to be fraudu- 
 lent in respect to such debts, and no circumstance, either of the 
 amount of the debts or of the property retained, will permit those 
 antecedent debts to be affected by the settlement, or repel the legal 
 presumption of fraud ; but as to subsequent creditors, the chan- 
 cellor declared, that while as to them the voluntary conveyance 
 would also, in such a case, be deemed to be fraudulent, yet that 
 presumption might be repelled by proof that the antecedent debts 
 were secured by a mortgage, or by a provision in the settlement. 
 
 In the case of Hunters v. Waite, 3 Grat. 26, Judge Stanard 
 delivered an opinion agreeing entirely with Chancellor Kent, and 
 construing the meaning of the statute as it then was, as modelled 
 
 But a conveyance to secure debts generally, to which no creditor or trustee is a 
 party, is, unless it had been sanctioned by previous assent or subsequent ratifica- 
 tion, a mere voluntary dedication, and is revocable at the pleasure of the grantor; 
 but this subsequent assent may be by act m pais, either of the trustee or cestui que 
 trust, if done before the rights of other parties attach. 2 Lomax Digest, 457; 
 Spencer v. Ford, 1 Eob. 684; Walwyn v. Coutts, 3 Meriv. 707; S. C. 3 Sim. (6 E. 
 C. B. ) 14; Garrard v. Ld. Lauderdale, 3 Sim. (6 E. C. E. ) 1; Bile v. Cureton, 2 
 My. & K. -(8 E. C. K. ) 511; Skipwith's Ex' or v. Cunningham, &c. 8 Leigh, 272; 
 Marbury v. Brooks, 7 Wheat. 566; Brooks v. Marbury, 11 Wheat. 78. 
 
 Chancellor Kent, on this subject, says that the assignment has been supposed to 
 be valid even without such intervening assent, in the case of an assignment to 
 trustees for the benefit of preferred creditors, and the assent of absent persons to 
 an assignment will be presumed, unless their dissent be expressed, if it be made for 
 a valuable consideration, and be beneficial to them. 2 Kent' s Com. 533. See also 
 Post, i 300. 
 
 This seems to be the better and more generally received doctrine. 
 
 Nothing that has been said in this note is intended to bear upon the degree of 
 proof necessary to overcome the presumption of fraud that exists against a volun- 
 tary conveyance where there has been a subsequent conveyance for value; and I 
 should think that but little evidence would be required to sustain in favor of a wife 
 and children a settlement of long standing, and of which the subsequent purchaser 
 had actual or constructive notice. In such a case there would doubtless be fraud, 
 but it would exist in the second and not in the first transaction. Post, H 162, 
 163, 164. 
 
§ 25 VOLUNTARY OE FEAXJDULENT COHTVEYANCB. 107 
 
 after the Stat. 13th Eliz.; but Judge Baldwin, in the same case, 
 differed from him, admitting that a voluntary deed raised a pre- 
 sumption of fraud as to antecedent creditors, and that between 
 them and subsequent creditors there was no other distinction than 
 that which arises from the necessity of showing a fraudulent in- 
 tent against some creditor, which cannot be done in behalf of 
 creditors not in existence at the time of the conveyance, but by 
 proving either a prior indebtedness, or a prospective fraud against 
 them only ;' but that this legal presumption of fraud could be 
 repelled as to either class of creditors, by showing that either pro- 
 vision was made in the settlement or otherwise to pay the ante- 
 cedent debts, or that ample and sufficient property was retained 
 for that purpose. 
 
 In this view the decided cases of Virginia have concurred, and 
 such is the prevailing opinion in England and throughout the 
 United States.^ 
 
 The case of Hunters v. "Waite arose and was decided, however, 
 before the enactment of either of the Virginia statutes which have 
 been cited. 
 
 But Professor MLaor' expresses the opinion that § 2, Ch. 114, 
 Code 1873 (now § 2459, Code 1887, and § 2, Ch. 74, Code W. 
 Va.) was enacted in order to determine the law with us in favor 
 
 1 Hutchison v. Kelly, 1 Rob. E. 131. 
 
 2 Minor's Institutes, Vol. 2, p. 606; Hutchison v. Kelly, 1 Bob. 131; Bank of 
 Alexandria v. Patton, Id. 499 ; Johnston v. Zane' s Trustees, 11 Grat. 557 ; Wilson 
 V. Buchanan, 7 Grat. 343; Harvey's Adm'r v. Steptoe's Adm'r et ak, 17 Grat. 289; 
 Hopkirk v. Randolph, 2 Brock. 132; Hinde's Lessee ». Longworth, 11 Wheat. 199; 
 Sexton V. Wheaton, 1 Am. L. C. 68 & seq; Lush v. Wilkinson, 5 Ves. 387; Kehr 
 V. Smith, 20 Wallace, 31; Lloyd et al v. Fulton, 1 Otto, 485; Weed v. Davis, 25 
 Ga. 686; Toundsend v. Westocot, 2 Beav. 345; Gale v. Williamson, 8 M. & W. 
 410; Shares v. Rogers, 3 B. & A. 96; Freeman v. Pope, 5 Ch. App. Cases Eq. 544; 
 How V. Ward, 4 Me. 195; Moritz v. Hoffiman, 35 111. 553; Leroy v. Wilmarth, 9 
 AUen, 382; MOler v. WUson, 15 Ohio, 108; Young v. White, 25 Miss. 146; Taylor 
 V. Ewbank, 3 Marsh. 329; Salmon v. Bennett, 1 Conn. 525; Worthington v. Shipley, 
 5 Gill. 449; Townsend v. Maynard, 45 Penn. 199. See also the case of Vanwick 
 V. Seward, reported as follows: Jackson v. Seward, 5 Cow. 67; Seward v. Jackson, 8 
 Cow. 423; Vanwick v. Seward, 6 Paige, 63, and Vanwick v. Seward, 18 Wend. 375. 
 
 ' 2 Minor's Institutes (2d ed.), p. 607; p. 680, 3d ed. 
 
108 LIMITATION TO SUITS IN EQUITY. § 25 
 
 of the view expressed by Chancellor Kent in the case of Reade v. 
 Livingston, and of Judge Stanard in the case of Hunters v. Waite ; 
 and that the law of Virginia on this subject as now understood is, 
 that voluntary conveyances are to be reckoned always frauduleni 
 as to existing creditors, and to be prima facie presumed to be 
 fraudulent as to subsequent creditors, when at the time of the con- 
 veyance there was an existing debt ; but as to such subsequent 
 creditors that prima fade presumption may be repelled by proof 
 th^t the existing debt or debts were provided for out of the prop- 
 erty conveyed, or that an ample remnant was left in the grantor's 
 hands to satisfy them, without any definite improbability that it 
 will be so applied.^ 
 
 In the case of Pickrell v. Reynolds, reported on p. 308 of the 
 Virginia Law Journal for 1882, Chancellor Fitzhugh takes issue 
 with the views thus expressed by Professor Minor and says : 
 " After a careful consideration of the proper construction of the 
 statute I am of opinion that a voluntary deed cannot be impeached 
 by a subsequent creditor on the mere ground of its being volun- 
 tary ; and that this principle prevails although the grantor may 
 have been indebted at the time the voluntary deed was made, and 
 even though such deed may have been decreed to be void as to a 
 prior creditor. The statute declares in express terms, that though 
 such a deed shall be void as to debts contracted at the time it was 
 made, it ' shall not, on that account merely, be void ' as to sub- 
 sequent creditors. And then it goes further and affirms that 
 although a court may decree it to be void as to a prior creditor 
 because voluntary ' it shall not for that cause be declared to be 
 void as to subsequent creditors.' The principle that a voluntary 
 deed cannot be impeached by a subsequent creditor simply on the 
 ground that the grantor was indebted at the time it was made, is 
 affirmed twice in the statute. This double affirmation of the 
 
 1 Johnstoii et al v. Gill et al, 27 Grat. 529; Minor's Institutes, Vol. 2, p. 607; 
 2 Bac. Abr. Fraud. (C); 2 Lomax Digest, 431; Bussell v. Hammond, 1 Atk. 15; 
 StUeman v. Ashdown, 2 Atk. 481; Fitzer v. Fitzer, Id. 511; Sexton v. Wheaton, 8 
 Wheat. 246. 
 
§ 25 VOLUNTARY OR FRAUDULENT CONVEYANCE. 109 
 
 principle seems to indicate a Very determined legislative intention 
 to reject the doctrine that a voluntary deed is, prima facie, pre- 
 sumed to be fraudulent as to subsequent creditors, because there 
 were debts existing at the time it was made as to which it is void. 
 Under this statute, to let in a subsequent creditor to impeach a 
 voluntary deed, there must be something more than the mere 
 existence of a debt to a prior creditor. It must be shown that 
 there was mala fides or fraud in the transaction — an actual fraudu- 
 lent view or intent at the time the voluntary deed was made." 
 This question of the effect on a subsequent creditor of a voluntary 
 deed by one who was also indebted at the time it was made came 
 before the Supreme Court of the United States in the case , of 
 Wallace v. Penfield, 106 U. S. R. 260, and is discussed by Justice 
 Harlan. This case was governed by the decisions of the Supreme 
 Court of the State of Missouri, from which Judge Harlan quotes 
 as follows : " Some would make an indebtedness per se evidence of 
 fraud against existing creditors ; others would leave every con- 
 veyance of the kind to be judged by its own circumstances, and 
 from them infer the existence or non-existence of fraud in each 
 particular transaction. Without determining the question as to 
 existing . creditors, we may safely affirm that all the cases will 
 warrant the opinion that a voluntary conveyance as to subsequent 
 creditors, although the party be embarrassed at the time of its 
 execution, is not fraudulent per se as to them ; but the fact 
 whether it is fraudulent or not is to be determined from all the 
 circumstances, I do not say that the fact of indebtedness is not 
 to weigh in the consideration of fraud in such cases, but that it is 
 not conclusive." 
 
 It will be observed that it is not contended even by Professor 
 Minor that as to a volimtary conveyance executed by one not in- 
 debted at the time, any presumption of fraud arises as to a subse- 
 quent creditor, and also that the Missouri cases only hold that a 
 voluntary conveyance by one indebted is not per se fraudulent as 
 to subsequent creditors. But the author thinks that the law is 
 
110 LIMITATION TO SUITS IN EQUITY. § 25 
 
 correctly stated by Judge Fitzhugt, and that as to subsequent 
 creditors, a conveyance by one indebted at the time does not raise 
 even a presumption of fraud. 
 
 If, on the other hand, a party is shown not to be indebted at 
 the time of the voluntary conveyance, that fact affords a presump- 
 tion that there is no fraud in the gift, although this presumption 
 may be repelled by showing that the donee immediately contracted 
 a large amount of indebtedness, or by any other proof that he 
 designed to defraud the subsequent creditor.^ 
 
 We have already stated that the statute (§ 16, Ch. 146, Code 
 1873, now § 2929 Code 1887, as amended ; Code West Va., Ch. 
 104, § 14,) does not apply to cases of actual fraud ;^ but the 
 decided cases' determining the inferences to be drawn from the 
 execution of a voluntary deed by one indebted at the time, declare 
 that if a man in insolvent circumstances conveys away his property 
 to strangers, or settles it upon his wife and children, the law con- 
 cludes the design to be fraudulent against his creditors, and all 
 evidence to the contrary is idle and delusive ; and so, if he renders 
 
 ' This discussion of the subject of fraudulent conveyances would seem to be more 
 appropriate under a different heading; but it appeared to me to be essential to a 
 clear understanding of the law of limitations that the reader should have before 
 him the rules of presumption in such cases; and as immediately connected there- 
 with, I think it best to add, that where a deed has been proved to have been 
 executed with intent to defraud existing creditors, by any facts other than the legal 
 presumption of fraud which is implied from the mere existence of antecedent debts, 
 then the deed will be held also to be null and void as to debts created after its exe- 
 cution. Pratt et al v. Cox et alt, 22 Grat. 330; Kehr v. Smith, 20 Wallace, 36; 
 Magawle/s Trust, 5 De. Gex. & Smales, 1 ; Savage v. Murphy, 35 New York, 508; 
 Thompson v. Dougherty, 12 Sergeant & Eawles, 448; Sexton v. Wheaton, 1 Ameri- 
 can Leading Cases, 68; Norton v. Norton, 5 Gushing, 529; Keade's Adm'r v. Liv- 
 ingston et als, 3 Johns. Chy. E. 481; Townshend v. Windham, 2 Vesey, Sen. 11; 
 Jenkyn v. Vaughan, 3 Drewry, 419; Eobinson v. Stewart, 10 New York (6 Selden), 
 189; Hoket). Henderson, 3 Devereaux, 12; Kissamu. Edmundson, 1 Iredell, Equity, 
 180; Silverman v. Greaser, 27 W. Va. 550. See also Post, § 158 et seq. A volun- 
 tary settlement by a man not indebted at the time is valid. Bank v. Wilson, 25 
 W. Va. 242. 
 
 ' Wilson V. Buchanan, 7 Grat. 334; Snoddy v. Haskins et als, 12 Grat. 363; 
 Himter's Ex' or v. Hunter, et al, 10 W. Va. 321 ; Himan v. Thorn, 32 W. Va. 507; 
 Bogjeso V. Eichards, 39 W. Va. 567; McCue v. McCue, 41 W. Va. 151. 
 
 ' Huntere v. Waite, Grat. 33. 
 
§ 25 VOLUNTARY OE PEAUDULBNT CONVEYANCE. Ill 
 
 himself insolvent by a voluntary conveyance, however meritorious 
 in itself. In such cases it is vain to speculate upon his motives 
 or to adduce evidence of an honest purpose. It may be that he 
 has acted through ignorance, or mistake, or misconception. Apolo- 
 gies and excuses may be found to absolve him from moral turpi- 
 tude, but to these the law cannot listen. He is bound to know 
 his own circumstances and the just demands against him ; and the 
 injustice and wrong to his creditors are palpable and unquestion- 
 able. 
 
 Such was declared to be the inference of the law from the old 
 statute ; the construction given to the present statute goes further 
 still, and the courts ^ have held that if the grantor be indebted (not 
 if he be insolvent) at the time of the voluntary settlement, it is 
 presumed to be fraudulent in respect to such debts, and no circum- 
 stance will permit those debts to be affected by the settlement, or 
 repel the legal presumption of fraud. 
 
 It might be inferred from expressions such as these that every 
 case of a voluntary conveyance was one of actual fraud, and hence, 
 to no such case would the statute have application. This con- 
 struction, however, would deprive the statute of all application, 
 and would render it altogether meaningless ; and while it is doubt- 
 less true that many circumstances of voluntary conveyances afford 
 in themselves sufficient proof of a fraudulent intent, or of an 
 unrebutted presumption of fraud as defined by the authorities, yet 
 it must be conceded that if the deed be void merely because it is 
 voluntary, the statute will apply, and such seems to be the con- 
 clusion of the courts.^ 
 
 Positive, however, as are the provisions of the statute,^ yet 
 although the right to file a bill to set aside a voluntary conveyance 
 may remain unasserted for a period long enough to raise a bar to 
 it, nevertheless the forbearance may be satisfactorily accounted 
 
 1 Johnston et al v. GHl et al, 27 Grat. 592. See also Post, U 158, 159. 
 
 2 Johnston et aJs v. GiU et ah, 27 Grat. 592. 
 
 ' And although the limitation commences to run at the time deed is made. 
 Hunter's Ex'rs v. Hunt«r et al, 10 W. Va. 321. 
 
112 LIMITATION TO SUITS IN EQUITY. § 25 
 
 for, not only by the savings of the statute in cases of infancy, 
 insanity and coverture, but sometimes by other circumstances also, 
 as by the fact that the adverse claimant was amused and diverted 
 from his purpose to sue by proposals of compromise or adjustment.' 
 Another statute,^ it is true, provided that a creditor, before ob- 
 taining a judgment or decree, may institute any suit to avoid a 
 gift, conveyance, assignment, etc.; but there was then no provision 
 for such a proceeding before the debt became due ; nevertheless it 
 was held^ that in all 'such cases the statute would none the less 
 begin to run from the time the conveyance was made, although in 
 other respects § 2929 (Code W- Va., Ch. 104, § 14) is governed 
 by §§ 2931, 2932. (Code W. Va., Ch. 104, §§ 16, 17.*) Under 
 the statute of March 2, 1894, moreover, a creditor before obtaining 
 judgment or decree for his claim, may, whether such claim be due 
 and payable or not, institute his suit to avoid the gift, conveyance, 
 etc. So it seems that the efi'ect of this statute as to such claims is 
 to cause the five years to be computed from the date of the deed.* 
 
 ' Minor's Institutes, Vol. 2, p. 515; Eustace v. Gaskins, 1 Wash. 185; 1 Lomax 
 Digest, 814; Egleberger '. Kibler, 1 Hill, Ch. 113; 26 Am. K. 192; Eeynolds' 
 Adtn'r v. Gauthorp's Heirs, 37 W. Va. 3. 
 
 ' S 2460, as amended by act of March 2, 1894, Acts 1893-4, p. 614; Code 
 W. Va., Ch. 133, ? 2. There is yet no provision for suing before the debt is due 
 under the statute of West Virginia. See Adler et al v. Fentftn et al, 24 Howard, 
 407; also Post, I 163. And as to what deeds may be avoided under the statute see 
 Post, I 159 to I 161, and Sipe v. Earman, 26 Grat. 563; Russell v. Eandolph et ah, 
 Id. 705; Henderson v. Hunton et als. Id. 926; Sayers et als v. Wall et als. Id. 354; 
 Herring et als v. Wickham and Wife et als, 29 Grat. 628; Harris v. Harris' Ex' or, 
 23 Grat. 760; Perry & Co. v. 8. V. N. Bank, 27 Grat. 755; Bump on Fraudulent 
 Conveyances, pp. 266, 269, 279, 280; 2 Minor's Institutes, 609, 627. 
 
 'Bickle et al v. Chrisman's Adm'r, 76 Va. 678. 
 
 * i 2933, Code 1887, is substituted for J 20, Ch. 146, Code 1873 and the word 
 "obstructed" for the word "obstructing," in the second paragi'aph of the section. 
 The difficulty does not arise in the West Virginia statute. (Code W. Va., Ch. 104, 
 ? 18. ) For construction of the Statute of Virginia see Ficklin's Ex' or v. Carring- 
 ton, 31 Grat. 219, which seemed to overrule Markle's Adm'r v. Burch's Adm'r, 
 11 Grat. 26, and which is in its turn overruled by Brown et al v. Butler et als, 87 
 Va. 621. See 2d Bart. Law Pr. 793. 
 
 ^ 1 Va. Law Register, p. 597. See Bumgardner et al v. Harris el als, Id. 590, 
 and 92 Va. 188. . 
 
§26 TO THE RIGHT TO ENFORCE A JUDGMENT LIEN. 113 
 
 To the Right to Enforce a Judgment lAen. 
 
 § 26. It is declared by statute ^ in Virginia, that no execution 
 shall issue, nor any scire fadas or acti6n be brought on a judg- 
 ment in this State, other than for the commonwealth, except within 
 ten years from the return day of an execution issued upon a judg- 
 ment on which execution has issued within one year from the time 
 it was rendered, and on which there is no return by an officer, or 
 within twenty years from the return day of an execution on which 
 there is such return ; and when no execution has issued on a judg- 
 ment, the limit to the right to a scire facias or action is ten years 
 after the date of the judgment. If, however, the scire facias or 
 action is against the personal representative of a decedent, it shall 
 be brought within five years from the qualification of such repre- 
 sentative. In computing the time under this statute there shall 
 as to writs of fieri facias' be omitted from such computation the 
 time which elapsed between January 1, 1869, and March 29, 
 1871 ; and as to writs of fieri facias, scire facias, or action, there 
 shall also be omitted from such computation any time during 
 which the right to sue out execution on the judgment is suspended 
 by the terms thereof, or by legal process.^ 
 
 The provision mentioned for a scire facias or action against the 
 personal representative of a decedent applies to judgments ren- 
 dered against debtors themselves, but not to a judgment against a 
 
 i?§3577, 3578 as qualified by P579; CodeW. Va., Ch. 139, § 140. Twoyears 
 for one year in West Virginia. Execution may issue on ten days notice witliin ten 
 years in West Virginia. For limitation to right to issue an execution see 2 Bart. 
 Law Pr., p. 789. 
 
 2 James v. Life, 92 Va. 702. 
 
 ' Code, ? 2919 as amended by act of February 12, 1896, Acts 1895-6, p. 331, 
 excepts the period between April 17, 1861, and March 2, 1866, and the period 
 between March 2, 1866, and January 1, 1869, and the period of one year from the 
 death of any party from the computation of time within which, by the operation 
 of any statute or rule of law, it may be necessary to commence any proceeding to 
 preserve or prevent the loss of any right or remedy. 
 
114 LIMITATION TO SUITS IN EQUITY. § 26 
 
 personal representative.^ But it is lield^ that if after judgment 
 and pending an injunction the defendant dies, and the injunction 
 is not dissolved for more than five years after his death, or after 
 the qualification of his personal representative, the time of the 
 existence of the injunction should be excluded from the computa- 
 tion, even though the injunction did not prevent the revival of the 
 judgment. 
 
 The right to enforce the lien of a judgment, in equity,^ is con- 
 fined to the time that an action may be brought or scire facias or 
 execution sued out thereon, and after that time the lien ceases to 
 exist.* 
 
 In a creditor's bill for the enforcement of judgment liens, it was 
 a grave question,' and one upon which the decided cases are still 
 uncertain, whether the time limiting the lien of the judgment in 
 favor of a creditor who comes in by petition, or under a decree, 
 would cease to run from the time the bill is filed, or from the date 
 of the petition or decree. The author thmks that the better opin- 
 
 ' Randolph's Adm'r v. Randolph, 3 Eand. 490. See also Peyton's Adm'r v. 
 Carr's Ex' or, 1 Eand. 436; Smith v. Hutchinson et als, 78 Va. 687. 
 
 ^Hutsonpiller's Adm'r v. Stover's Adm'r, 12 Grat. 579. 
 
 ' § 3571. The statute of West Virginia (Code, Ch. 139, § 7) provides that the 
 lien of a judgment may be enforced after an execution has been duly returned or 
 without a return when a fi. fa. was not issued within two years from the date of 
 the judgment. 
 
 *Lomax Digest, Vol. 1, p. 375; Eppes v. Eandolph, 2 Call. 125; Stuart v. Ham- 
 ilton, 8 Leigh, 503; Taylor's Adm'r et ah v. Spindle, 2 Grat. 44; Brown, Adm'r, 
 1-. Campbell el al, 33 Grat. 402; Werdenbaugh et al v. Eeid et al, 20 W. Va. 588; 
 Hutcheson v. Grubb, 80 Va. 252; Bank v. Hays, 37 W. Va. 475; Mayer v. Kipp, 
 6 Paige, Ch. 88, 29 Am. Dec. 748; Laidley v. Kline's Adm'r, 23 W. Va. 565. 
 Now fixed by statute in Virginia, Code, § 3573. But to enforce a judgment Hen it 
 need not be revived by scire facias. James v. Life, 92 Va. 702. 
 
 ^Harvey's Adm'r d. Steptoe's Adm'r, 17 Grat. 304; Stenndale v. Harkinson, 1 
 Sim. E. 393. As to a suit which is not in its inception a general creditors' bill, but 
 is made so by an order of reference to convene creditors, it is held that the statute 
 of limitations only ceases to run from the time the order of reference is made 
 (Laidley v. Kline, 23 W. Va. 578), but where the bill is in its inception a general 
 creditor' s bill, the author thinks that the statute of limitations ceases to run at the 
 time it is filed, not only as to the claims of the formal complainants, but also as to 
 every other claim which may properly be audited in the suit. 
 
§ 26 TO THE EIGHT TO ENFORCE A JUDGMENT LIEN. 115 
 
 ion is that the time ceases to run at the date at which the bill is 
 filed, the law being thus stated in general terms : " A decree for 
 the payment of debts under a creditor's bill for th^ administration 
 of assets is also considered as a trust for the benefit of creditors, 
 and will, in like manner, prevent the statute from barring the 
 demand of any creditor coming in under the decree ; the creditor's 
 demand, however, must not have been barred at the time when 
 the suit was instituted ; for if the creditor's demand would have 
 been barred by the statute before the commencement of the bill, 
 the statute may be set up. It is to be remarked upon this point, 
 that it has been held that it was the decree only that created the 
 trust, and that the mere circumstance of the bill having been filed, 
 although it might have been pending six years, would not take the 
 case out of the statute ; but according to the later decisions, it 
 seems that the filing of the bill will operate by itself to save the 
 bar of the statute, though the plaintiff, by delay in prosecuting 
 the suit, may disentitle himself to relief. And the dismissal of 
 the bill will not prevent the defendant in a new suit from taking 
 the benefit of the statute." ^ This statement of the law, it is true, 
 refers in terms only to a bill for the administration of assets, but 
 the reasoning seems to be sufficient to make it applicable to any 
 general lien creditor's bill.^ 
 
 Of this subject in Bank of Old Dominion v. Allen d ah, 76 
 
 1 Daniel's Chy. Pr., Vol. 1, p. 643. Contra, Welch v. Stewart, 2 Bland, 37. 
 HaU's Adm'ri). Creswell, 12 Gill & Johnson, 36; and cases cited in Bump on 
 Fraudulent Conveyances, p. 546, note, where the rule is laid doivn that the statute 
 ceases to run when petitions are filed, or vouchers for the claims are presented. 
 The statute is sometimes held to cease to nm at the date of the decree convening 
 the creditors. Woodyard, Receiver, v. Polseley el al, 14 W. Va. 211. So also 
 might be construed the case of E wing's Adm'r et ah' v. Ferguson's Adm'r et ok, 
 33 Grat. 548; but that cannot be taken to be an express adjudication of this point, 
 and the circumstances of that case would rather make it agree with the rule as 
 stated in the text, although the language of the judge delivering the opinion 
 establishes a different rule. 
 
 ^ Such bills being treated as to each daim thereunder asserted, as if each creditor 
 had filed his separate, independent bill. Umbarger & Wife et als v. Watts et ais, 
 25 Grat. 174. 
 
116 LIMITATION TO SUITS IN EQUITY. § 26 
 
 Va. 205, Judge Burks says, "and the act of limitations cei"- 
 tainly ceased to run against the ckiim from the date of the order, 
 if not from the filing of the bill." Judge Burks cites the case of 
 Harvey's Adm'r, &c. v. Steptoe's Adm'r et als, 17 Grat. 287, 
 wherein, on p. 304, Judge Joynes says, " If the bill in this case 
 had been a ' creditor's bill ' filed on behalf of the plaintiff and all 
 other creditors, perhaps the statute would have ceased to run from 
 the filing of the bill, as was held in the case last cited," referring to 
 Stenndale v. Harkinson, 1 Sim. R. 393.' 
 
 Judge Lewis in the case of Paxton v. Rich, 85 Va. 381, says: 
 " The settled rule in respect to a creditor's suit for the administra- 
 tion of the assets of a deceased debtor, is that a decree for an 
 account of outstanding debts operates a suspension of all other 
 pending suits of creditors, who must come in under the decree, 
 which is treated as a decree in favor of all creditors ; and from 
 that date the statute of limitations cases to run, if not from the 
 filing of the bill." 
 
 In Northwestern Bank of Virginia v. Hayes et al, 37 W. Va. 
 475, it is held that " in a creditor's suit, where the object and 
 purpose are to ascertain all the liens upon the debtor's real estate, 
 and their priorities, and to provide for their payment, the statute 
 of limitations will in general cease to run against such liens after 
 an order of reference." 
 
 Thus, while it is clearly settled that after an order of reference 
 the statute will cease to rim as to any debt which is proved under 
 the order, it is left in doubt, so far as the decided cases go, if it 
 does not in fact cease to run at the filing of the bill, not only as 
 to the debt asserted by the bill, but also as to any debt which may 
 thereafter be offered for audit and proven in the case, and as to 
 which the bill then becomes the bill of the creditor who proves 
 his claim. I think it the fairer rule to hold that in such a case 
 
 1 See also Norvell, Adm'r, v. Little el als, 79 Va. 143; Laidley v. Kline's Adm'r, 
 23 W. Va. 565; Houcks, Adm'r, v. Dunham, 92 Va. 211. 
 
§ 27 WHERE THEKE LS A TRUST. 117 
 
 the statute of limitations will be taken to have ceased to run at 
 the filing of the bill, if at least the bill be in form a general 
 creditor's bill.' 
 
 Where there is a Trust. 
 
 § 27. The character of trust that is exempt from the laws of 
 limitation must be of that kind which belongs exclusively to the 
 jurisdiction of a court of equity ; it must be a direct trust, and 
 the question must arise between the trustee and the cestui que trust.^ 
 
 A direct or express trust is defined * to be : (1), A use upon a 
 use ; * (2), A trust where special discretion is reposed in the per- 
 son seised to uses ; ^ (3), Uses declared upon the possession of a 
 term for years ; * and (4), Uses declared by any other conveyance 
 than a bargain and sale, covenant to stand seised, or lease and 
 , release.'' 
 
 Those which come under the general head of indirect trusts, and 
 
 ^ A distinction is made in this respect in Laidley v. Kline, 23 W. Va. 565, it 
 being there held that in a suit made a general creditor" s suit only by the order of 
 reference the statute ceases to run from the date of the order. 
 
 ^ Angel on Limitations, § 166; SJinor's Institutes, Vol. 2, p. 514; 1 Lomax's 
 Digest, 810-11; Daniel' s Chancery Practice, Vol. 1, p. 644; Justis v. English el 
 ah, 30 Grat. 576; Beckford v. Wade, 17 Ves. 97; Kane v. Bloodgood, 7 Johns. 
 Chy. E. 123; Sheppards v. Turpin, &c., 3 Grat. 395; Seymour v. Freer, 8 Wallace, 
 202; Livesay v. Helms et als, 14 Grat. 441; Gapen v. Gapen, 41 W. Va. 427; 23 
 S. E. B. 379; Thompson ji. Whitaker Iron Co., W. Va.; 23 S. E. E. 110. 
 
 » Story's Eq. Jurisprudence, ? 979-980; 2 Minor's Inst. 186. 
 
 * Hopkins ». Hopkins, 1 Atk. 591; 2 Wash. E. prop. 161; 1 Lomax's Digest, 
 223. 
 
 '1 Lomax's Digest, 224r-'5; Bl. Com. 336; Brown et ah v. Lambert's Adm'r 
 et als, 33 Grat. 256; Evans v. Johnston, 39 W. Va. 279. 
 
 6 2 Bl. Com. 336; 1 Lomax's Digest, 228; Code of Va. 1873, Ch. 112, § 14. 
 
 ' Bass V. Scott, 2 Leigh, 356 ; 1 Lomax' s Digest, 228. A vendor' s lien has been 
 held to be a trust which is excluded from the operation of the statute of limita- 
 tions. Lewis V. Hawkins, 23 Wallace, 119. And only the rule of presumption of 
 payment applied to a vendor' s lien. TunstaU' s Adm' r v. Withers el als, 86 Va. 892. 
 See also Hull's Adm'r v. Hull's Heirs, 35 W. Va. 155; Evans v. Johnson, 39 W. 
 Va. 279. There is no limitation or presumption against the lien of a vendor who 
 has not parted with his title. Evans v. Johnston, 39 W. Va. 279; Hannah v. 
 Wilson, 3 Grat. 243. See also Tate v. Hawkins, 81 Ky. 577; 50 Am. E. 181. 
 But now in Virginia the statute (Code, J 2935 as amended by act of February 24, 
 1898, Acts 1897-8, p. 516) has express application to a vendor's lien. 
 
118 LIMITATION TO SUITS IN EQUITY. § 27 
 
 which are subject to the laws of limitation, are resulting, implied, 
 and constructive trusts/ 
 
 Of trusts within the definition of direct, are the cases of. a 
 trustee who has sold an estate charged with the payment of 
 money, without satisfying the debts ; ^ where there has been a 
 commission in bankruptcy ; ^ and cases of executors and adminis- 
 trators where land has been charged with the payment of debts/ 
 
 The rule establishing a trust in devises of property does not 
 apply to personal estate ; ° nor generally to debts barred at the 
 date of the death of the testator ; * nor does it prevent an executor 
 from defeating any action brought against him, by pleading the 
 statute of limitations thereto ; ' but where the lands of a testator 
 are not hable for- the payment of his debts on simple contract, but 
 by his will he charges them therefor, and devises his lands to an 
 executor or trustee for that purpose, that constitutes a direct trust 
 over which a court of chancery has jurisdiction, and the relation 
 of cestui que trust and trustee exists between the creditors and the 
 executor or trustee, so that the statute of limitations does not run 
 against any demand of the former against the latter.* 
 
 In Virginia it is provided by statute ' that all real estate, as to 
 which any person may die intestate, or which, though he die testate, 
 
 1 2 Minor's Inst. 188. 
 
 "MUnes v. Conley, 4 Price (Ex.) E. 103. 
 
 ^ Ex^arte Eoss m re Coles, 2 Glyn. & Jam. E. 46; Minot v. Thatcher, 7 Met. 
 348; Angel on Lim., § 167. 
 
 *Eedfield on Wills, Vol. 3, p. 239. 
 
 5 1 Eob. Pr. 570; Jones v. Scott, 1 Euss. & My hie, 255; 4 Cond. Eng. Chy. E. 
 413; Braxton v. Wood's Adm'r, 4 Grat. 26; Deering & Co. v. Kerfoot, 89 Va. 491; 
 Code, I 2665. 
 
 "1 Eob. Pr. 570; Burke v. Jones, 2 Ves. & Beam. 275; Tazewell's Ex' or v. 
 Whittle's Adm'r, 13 Grat. 329; Baylor's Lessee v. Dejamette, 13 Grat. 152. 
 
 ' Kane v. Bloodgood, 7 Johns. Chy. E. 123; Wisner v. Barnet, 4 Wash. E. 639; 
 Souzer v. De Meyer, 2 Paige, 574; Eiddle & Co. ■!>. MandevHle, 5 Cranch. 322; 
 Buchan v. James, 1 Speer, Eq. E. 375; Brown's Adm'r v. Griffith, 6 Munf. 450. 
 
 * Angel on Limitations, § 169; Man v. Warner, 4 Wheat. E. 477; Eowe v. 
 Bentley et als, 29 Grat. 756. For an instance in which a will was declared not to 
 constitute a trust in an executor, see Mason v. Jones and Wife, 26 Grat. 271. 
 
 " § 2665. Code West Va., Ch. 86, § 3. 
 
§ 27 WHERE THERE IS. A TRUST. 119 
 
 shall not by his will be charged with or devised subject to the 
 payment of his debts, or which may •emain after satisfying the 
 debts with which it may be so charged, or subject to which it may 
 be so devised, shall be assets for the payment of the decedent's 
 debts, and all lawful demands against his estate, in the order in 
 which the personal estate of a decedent is .directed to be applied. 
 But there is a further statute, ^ which declares that no provision 
 in the will of any testator devising his real estate, or any part 
 thereof, subject to the payment of his debts, or charging the same 
 therewith, shall prevent the statute of limitations from operating 
 against such debts, unless it plainly appear to be the testator's 
 intent that it shall not so operate. The efi'ect of this legislation 
 has been construed to be, that all the laws of limitations shall 
 apply in favor of the estate of the deceased, although there is a 
 devise of real estate for the payment of the debts, unless it plainly 
 appears that the testator meant otherwise ; and this intention must 
 be gathered from some provision or phrase of the will which 
 indicates the purpose of the testator, independent of the mere fact 
 of the devise. 
 
 Where there is a reference to particular debts, they mil be 
 regarded as plainly within the testator's provision ; but where the 
 charge is for the payment of debts generally, the will cannot be 
 construed to provide for an indefinite extension of time in favor 
 of all who may assert claims against his estate. Since the matter, 
 therefore, is purely one depending upon the intention of the tes- 
 tator, as manifested by the plain provisions of his will, it follows 
 that the will applies to all of his debts, whether barred or not at 
 the time of his death ; and it is as competent for a testator, under 
 the statute, by his will to revive a debt already barred, as it is to 
 stop the further running of the statute against debts, the recovery 
 of which has not yet been stopped by its provisions.^ 
 
 The case of a pawn or pledge constitutes also a trust within 
 
 1 ? 2924. Code West Va., Ch. 104, § 10. 
 
 ''Johnston, Trustee, &c. v. Wilson's Adm'r e« ah, 29 Grat. 379. 
 
120 LIMITATION TO SUITS IN EQUITY. § 27 
 
 the meaning of the rule excluding the effect of the laws of 
 limitation. Upon a failure to pay the debt secured by the pawn, 
 the property does not pass to the pawnee; and if he choose to 
 hold the pledge without selling it, there will be no limitation to 
 the right to redeem it, although courts of equity have, after the 
 lapse of a very long time, when no claim for redemption has been 
 made, declined to entertain a suit for redemption.^ 
 
 There are also cases of trusts, such as the accounts of fiduciaries 
 and others, which will be presently treated of. 
 
 The exemption of direct trusts from the laws of Kmitation must 
 be fu^her considered in connection with the qualifications thereto, 
 which are, that courts of equity apply the rules where the trustee 
 abandons bis fiduciary character, and openly claims against the 
 cestui que trust; and when there has been a clear breach, and the 
 cestui qae trust with knowledge of it has openly acquiesced in the 
 misconduct of the trustee.^ 
 
 So it has been held, that where a trustee has closed his trust- 
 relations to the property, and to the cestui que trust, and has parted 
 with all control over the property, the statute of limitations runs 
 in his favor, notwithstanding there is an express trust.^ 
 
 Cases of implied, constructive and resulting trusts do not, of 
 course, come within the exemption, and to all such courts of 
 equity refuse relief after long acquiescence, and laches, and where 
 
 ' Angel on Limitations, § 173; Parsons on Contracts, Vol. 3, pp. 89, 90; Addison 
 on Contracts, Vol. 3, § 1084. For extent of right to seU things pledged see Dykes 
 V. Allen, 7 Hill, 497; 42 Am. Dec. 87; note, p. 93; Wilson v. Little, 2 Comstock, 443; 
 51 Am. Dec. 307; note, p. 313; Am. & Eng. Encyc. of Law, Vol. 18, p. 652, 709. 
 Limitation to the right to redeem a pledge. Id., p. 734. 
 
 ^ Story's Eq. Jurisprudence, 1 1521; Choldmondely v. Clinton, 2 Jac. & Walker, 
 Chy. E. 1; Angel on Limitations, i 174; Kowe v. Bentley et ah, 29 G-rat. 756; Nease 
 V. Capehart, Ex' or, 8 W. Va. 95. See also PhUippi v. Phillippe, 115 U. S. 
 R. 157. 
 
 'Clarke j;. Boorman'sEx'ors, ISWall. 493; Seymour?;. Freer, 8i"d. 202; Badger 
 D. Badger, 2 Id. 87; Eowe v. Bentley, 29 Grat. 760; 2 Perry on Trusts, 2 864; 
 Hill on Trustees, side page, 264. See also Edwards v. University, 1 Dev. & Battle 
 Eq. 325; 30 Am. Dec. 170. 
 
§ 27 WHEEE THERE 18 A TRUST. 121 
 
 by reason thereof there is difficulty in doing justice ; ^ and in no 
 case will a court of equity sustain a stale trust unless it be clearly 
 established, and it be shown that the facts have been fraudulently 
 and successfully concealed by the trustee from the knowledge of 
 the cestui que trusO 
 
 It has been held ^ that the unpaid subscriptions to the capital 
 stock or shares of a corporation constitute a trust fund for the 
 benefit of the general creditors of the corporation ; and an ar- 
 rangement by which the stock was nominally paid for, and the 
 money immediately taken back as a loan to the stockholder, who 
 executed his note therefor, was held to be not a valid payment for 
 the stock as against the creditors of the corporation, whatever it 
 might be between the company and the stockholders. 
 
 In such a case it would seem to follow, that if the notes given 
 for the simulated loan should be barred by the statute of limita- 
 tions, there might be a recovery nevertheless on the original stock 
 obligation, unless that should be barred also. 
 
 As in other cases of fraud where there has been a concealment 
 of the breach of trust, while it is doubtful at law* whether the 
 statute begins to run from the commission of the fraud or its 
 discovery, it is well settled that in equity it begins to run only 
 from the discovery of the fraud.^ 
 
 ' Beckford et ais v. Wade, 17 Vesey, 97; Bowney v. Eidgard, 1 Cox's Chy. Cas. 
 145; Hawley v. Cramer, 4 Cow. 742; Fisher's Ex' or v. Tucker's Ex'ors, 1 McCord's 
 Chy. E. 176; Prevost v. Gratz, &c., 6 Wheat. 481. 
 
 2 Badger v. Badger, 2 WaU. 92; Eowe v. Bentley, 29 Grat. 763. 
 
 ' Sawyer v. Hoag, 17 WaU. 610; Burke v. Smith, 16 WaU. 390; New Albany v. 
 Burkes, 11 WaU. 96. See also Beach on Private Corporations, Vol. 1, p. 212, and 
 cases cited. 
 
 * Angel on Lim., § 183 to ? 189; CaUis v. Waddy, 2 Munf. 511; Eice v. White, 
 4 Leigh, 474. 
 
 "Eowe V. Bentley et ah, 29 Grat. 760; Shield's Adm'r, &c. v. Anderson, Adm'r, 
 &C., 3 Leigh, 729. For the effect of limitations upon charitable trusts, see Eedfield 
 on WiUs, Vol. 2, p. 557; 2 Story Eq. Jur., J 1520, b; Cadbury v. Smith, L. E. 9 
 Eq. 37. 
 
122 LIMITATION TO SUITS IN EQUITY. § 28 
 
 Where there is a Mortgage or Deed of Trust. 
 
 § 28. The rules governing the application of the laws of limit- 
 ation to the case of a mortgage as they were before the present 
 statute in Virginia,' are so well stated by Judge Burks, in the case 
 of Suavely v. Pickle et als, 29 Grat. 38, wherein he quotes from 
 all the authorities, and mainly from Minor's Institutes, that I 
 cannot do better than to follow his exact language. " The true 
 doctrine," says the learned judge, " upon this subject in Virginia 
 has been laid down correctly, I think, by the accurate author of 
 the Institutes of the Common and Statute Law. I cannot do 
 better than to quote from this excellent treatise. After stating 
 that the mortgagor, in equity, has the right to redeem within a 
 reasonable time, the author continues : ' The time which shall be 
 deemed reasonable is not definitely fixed. As long as the mortgagor 
 continues in possession no limit is imposed ; and if that possession 
 continue adversely a sufficient length of time, it amounts to an 
 extinction of the lien. The right to redeem is liable to be limited 
 or barred by the lapse of time only when the mortgagee has been 
 in the uninterrupted enjoyment of the premises for a considerable 
 period. That period has long been fixed at twenty years, by 
 analogy to the bar of the right of entry by the statute of limit- 
 ations (21 Jac. 1 C, 16) according to the English cases ; but ac- 
 cording to the view adopted in Virginia, in consequence of the 
 lapse of that time warranting the presumption of an abandonment 
 of the equity, as of all other equities, and as in like manner it 
 warrants even in a court of law a presumption of satisfaction of a 
 debt.^ * * * B^l; -virhatever may be the source and ground of 
 
 1 Code, I 2935 as amended by act of February 24, 1898, Acts 1897-8, p. 516. 
 For the general rules of limitations as eflfeoting mortgages, see Jones on Mortgages, 
 I 1192. 
 
 2 1 Lomax Dig., 454; 1 Tucker's Com., 110, B. II; 2 Bl. Com. 159, n (8) ; Howard 
 V. Harris, 2 Wh. & Tud. L. Cas., Pt. 2, p. 425 (ed. 1877, p. 1042); Hovenden v. 
 L'd Annesley, 2 Sch. & Lefr. 607; Choldmondely v. Lord Clinton, 2 Jac. & Walk. 
 1-151; Boss D. NorveU, 1 ^Rwh.. 14. 
 
§ 28 WHERE THERE IS A MORTGAGE OR DEED OF TRUST. 123 
 
 the limitation, it is admitted to be a mere presumption, capable of 
 being repelled by circumstances sufficient to satisfy the mind that 
 in the particular case it is ill-founded. Thus, not only will it be 
 repelled by the existence of any of the impediments which would 
 repel the bar of the statute (in Virginia infancy, insanity and 
 coverture, V. C. 1873, Ch. 149, § 15),' but also by any circum- 
 stance of fraud or oppression on the part of the mortgagee tending 
 to clog or embarrass the redemption, and by even a slight act of 
 the mortgagee or his representative, acknowledging the continued 
 right of the mortgagor, such as by keeping private accounts of the 
 profits of the estate, as if it were still redeemable, especially if kept 
 with the mortgagor, etc.; or by conveying subject thereto, or offering 
 to purchase it, or even by a parol recognition in conversation of 
 the mortgagor's right, provided it were clear and unequivocal.' ^ 
 Besides the circumstances mentioned above by the learned author 
 of the institutes as sufficient to repel the presumption raised by 
 lapse of time, there are many others ; and, as stated by him, it 
 may be repelled by any circumstances sufficient to satisfy the mind 
 that in the particular case it is ill-founded." Professor Minor 
 further remarks,^ that it may be doubted whether the limitation 
 to the creditor's right to enforce his lien stands on the mere pre- 
 sumption of satisfaction, and whether, on the other hand, it is not 
 controlled by the positive bar of the statute of 'limitations, in which 
 event the period, if the mortgage were under seal, would be twenty, 
 and if not under seal five years ; but the doctrine before stated is 
 believed to be the better founded.* 
 
 The statute in Virginia ° now distinctly provides that no deed 
 
 iNow ? 2931; Code W. Va., Ch. 104, ? 16. 
 
 * 1 Lomax Dig., 455; Howard v. Harris, 2 Wh. & Tud. L. Cag.. Pt. 2, p. 425; 
 2 Minor's Institutes, 328; Jones' Adm'r v. Comer's Ex' or, 5 Leigh, 350; Hughes 
 V. Edwards, 9 Wheat. E. 489; 2 Wash, on Eeal Prop. 558; Eakestraw v. Brewer, 
 Sel. Chy. Cas. 55; Burke v. Lynch, 2 BaU. & Beat. 426. 
 
 "2 Minor's Institutes, 317. 
 
 * Howard v. Harris, 2 Wh. & Tud. L. Cas., Pt. 2, p. 425 & seq.; 1 Lomax Dig. 
 454; Smith's Ex' or v. W. C. V. M. & G. S. E. E. Co., 33 Grat. 617. 
 
 5 2 2935 as amended by act of February 24, 1898, Acts 1897-8, p. 516. 
 
124 LIMITATION TO SUITS IN EQUITY. § 29 
 
 of trust or mortgage hereafter given ^ to secure the payment of 
 money, and no lien hereafter reserved to secure the payment of 
 unpaid purchase money shall be enforced after twenty years from 
 the time when the right to enforce the same shall have first ac- 
 crued, except that the statute does not refer to a deed of trust or 
 mortgage executed by a corporation. 
 
 Where, however, independent of the statute (§ 2935 Code) the 
 creditor seeks to recover his money by action at law, there can be 
 no reason to doubt that the positive bar of the statute of limitations 
 would be applicable ; that is, a period of twenty years if the mort- 
 gage or deed of trust be under seal, or of five years if it be not.^ The 
 fact, however, that the right of action at law on the bond or note 
 is barred by the statute of limitations, did not, before the statute, 
 destroy the equitable lien for unpaid purchase-money of land ; * 
 and the right of the vendor, mortgagee, or creditor, secured by a 
 deed of trust to subject his land to the lien for his debt, will not 
 be barred by any lapse of time short of that sufficient to raise a 
 presumption of payment,^ except in cases that have arisen since and 
 under the statute. 
 
 Where there are Accovmts and Partnership Transactions. 
 
 § 29. There is no statutory limitation to a proceeding to com- 
 pel an account, but after a considerable lapse of time courts of 
 equity refuse to interfere, from considerations of public policy, 
 and from the difficulty of doing justice where the transactions 
 
 ' After the date at which the Code of Virginia of 1887 took eflfect, to-wit: May 1, 
 1888. 
 
 ' 1 Minor's Instituteg, 317. This whole subject is also ably discussed by Haymond, 
 P., in the case of Pitzer v. Bums, 7 W. Va. 63, in which substantially the same 
 results are reached as have been stated in the text. 
 
 ' Bizzell V. Nix, 60 Ala. 281; 31 Am. K. 38, and cases cited on p. 41. 
 
 * Coles V. Withers el cds, 33 Grat. 186; Smith's Ex' or v. W. C. V. M. & G. S. E. 
 E. Co., 33 Grat. 617; Hanna v. Wilson, 3 Grat. 332; Wanmaker et al, Ex'ors, v. 
 Van Buskirk, 1 Saxton Cr. 685; 23 Am. Dec. 748, and notes on p. 755. 
 
§29 WHERE ACCOUNTS AND PARTNERSHIP TRANSACTIONS. 125 
 
 have become obscure, and the evidence to explain them has been 
 lost by lapse of time.* 
 
 The decided causes do not fix any period limiting the right to 
 demand an account, and their variance is so great as to make it 
 impossible to fix upon any precise measure of time. The test in 
 each case is, that if such delay has taken place as that no correct 
 account can be rendered, and all conclusions must be uncertain 
 and conjectural, the court will not grant relief; and if it be too 
 late to ascertain the merits of the controversy, the court will not 
 interfere, whatever may have been the original justice of the claim.^ 
 
 With regard to a proceeding between partners to compel an 
 account, it is well settled that such cases do not come within the 
 meaning of the statute of limitations, fixing a period for an action 
 upon an account between merchant and merchant ; ^ but that to 
 bring such a suit within the bar of the statute, it must not only 
 appear that the partnership has ceased for more than the limit pre- 
 scribed, whatever that may be, but that there were no valid claims 
 of debit or credit, against or in favor of the partnership, paid or 
 received, or outstanding within that time.^ 
 
 In Virginia, there has long been a statute,'' which provides that 
 an action by a partner against a copartner for a settlement of the 
 partnership account may be brought until the expiration of five 
 
 ^ Angel on Limitations, ? 171; Britton i>. Lewis, 8 Rich. Eq. 271; Hercyt). Din- 
 wood, 3 Bro. Chy. E. 257; McKnight v. Taylor, 1 How. 161; Piatt v. Vattier, 9 
 Petei-s, 416; Stor/s Eq. Juris., § 1520, a; Prevost v. Gratz, 6 Wheat. 481. 
 
 ' Harrison et ah v. Gibson et als, 23 Grat. 223; 2 Lomax on Ex'ors, 48S, margin; 
 Carr" s Adm' r r. Chapman's Legatees, 5 Leigh, 164; Perry on Trusts, J 869; Ca- 
 ruthers' Adm'rs v. Trustees, Lexington, 12 Leigh, 610; Atkinson v. Kohinson, 9 
 Leigh, 393; HUlis v. Hamilton, 10 Grat. 300; Smith et ah v. Thompson's Adm'r 
 et als, 7 Grat. 112; West's Adm'r et als v. Thornton et ak, 7 Grat. 177. But now 
 by statute in Virginia ( § 2921 ) the limit of ten years is fixed from the time an ac- 
 count of a fiduciary is confirmed within which it may be surcharged and falsified. 
 
 ^C<5alter v. Coalter, 1 Eob. E. 99; Cotman v. Eogers, 10 Pick. 112; 3 Monroe, 
 (Ky.) 330; 6 Id. 10. • 
 
 'Coalteru. Coalter, 1 Eob. E. 99; MarsteUer «. AVeaver's- Adm'x, 1 Grat. 400. 
 
 " 1 Eev. Code 1819, Ch. 128, i 4, p. 488; Code 1873, Ch. 146, § 8; now ^ 2920; 
 Code W. Va., Ch. 104, i 6, as amended by act of February 21, 1895, Acts 1895, p. 8. 
 
126 LIMITATION TO SUITS IN EQUITY. § 30 
 
 years from a cessation of the dealings in which they are interested 
 together, but not after. . It has been determined ' that this statute 
 does not begin to run from the time of the dissolution merely, and 
 not until all acts connected with the dissolution, such as the collec- 
 tion or payment of outstanding debts due to the firm, have finally 
 ceased, and there are no longer any good debts due to the firm.^ 
 
 To Surcharge and Falsify an Account. 
 
 § 30. The statute of Virginia (Code 1873, Ch. 128, § 29, 
 § 2699 ; Code W. Va., Ch. 87, § 22) provides that a settlement 
 of the accounts of a fiduciary, made by a master commissioner in 
 chancery, and confirmed by the court, shall be taken to be correct, 
 except so far as the same may in a suit in proper time be surcharged 
 or falsified ; but there was no statutory declaration of what is a 
 proper time. It had been thought to be, however, a very reason- 
 able measure that the suit should be brought within the period 
 fixed by statute for commencing an action at law on matters of 
 account f but this view was wholly disapproved by Judge Staples 
 in the case of Leake's Ex'or v. Leake et als, 75 Va. 801, and this 
 view of Judge Staples is again approved by the court of appeals 
 of Virginia in the case of Sharpe's Ex'or v. Rockwood, 78 Va. 30,^ 
 by which it is held that the limitation to an action against the 
 sureties on a fiduciary bond was ten years. Before the present 
 statute (§ 2921) in Virginia there was no statutory limitation to a 
 suit against the fiduciary himself," but even where the bar of the 
 statute is not applicable (as to a demand purely equitable), unless 
 there be fraud which could not be sooner discovered,^ the court is 
 loth to interfere after a considerable lapse of time, particularly 
 
 ^ Foster' s Curator v. Eisou et al, 17 Grat. 321. 
 
 " See also Jordan v. MUler et als, 75 Va. 442. 
 
 » I 2927; Code W. Va., Ch. 104, § 12. 
 
 * See Hoge's Adm'r v. Vintroux^l W. Va. 2; Kadford v. Fowlks, 85 Va. 845. 
 
 5 Leake v. Leake, 75 Va. 792; Feale v. Thurmond, 77 Va. 753; McCormick v. 
 Wright, 79 Va. 524; Ashhy v. Bell, 80 Va. 811. 
 
 «Botifeur?). Weyman, 1 McCord Chy. E. 156; Ogden v. Astor, 4 Sandf. S. C. 
 311; Brule v. Bickerton et ah, 18 W. Va. 342. 
 
§ 31 SUITS FOE SPECIFIC PEEFOEMANCE. 127 
 
 after the death of parties whose transactions are involved in the 
 inquiry.' 
 
 Independent of the statute the decided cases afford no certain 
 criterion of time, and each case has been left to its own peculiar 
 circumstances, dependent upon those general principles which pre- 
 clude courts of equity from giving their aid where the applicant 
 has been guilty of laches, or where, from lapse of time, obscurity 
 of events, death of parties, and other causes, there is good reason 
 to think that justice cannot be done.^ 
 
 The rules applicable to cases of express trusts apply equally 
 well here, both as to the exclusion from the direct operation of 
 the statute of limitations, and in being also subject to the rules 
 affecting laches, as they have already been stated in this chapter.' 
 
 But now the statute (Code, § 2921) distinctly provides that when 
 the fiduciary has settled an account under the provisions of chapter 
 121 of the Code, a suit to surcharge or falsify the same, or to hold 
 such fiduciary or his sureties liable for any balance stated in such 
 account to be in his hands, shall be brought within ten years after 
 the account has been confirmed. 
 
 Suits for Spexsific Performance. 
 § 31. Cases of this character, except in special instances, are 
 governed by the general rules applicable to laches ; * but where 
 
 1 Ellison Surv'r v. Mofatt, 1 Johns. Chy. K. 46; Kay v. Bogart, 2 Johns. Cases, 
 432; Eayner v. Pearsall, 3 Johns. Chy. K. 57.8, 586; Mooers v. White et als, 6 
 Johns. Chy. E. 360; Boiling v. Boiling, 5 Munf. 334; Eandolph v. Eandolph, 2 
 Call. 537; Dexter v. Arnold, 2 Sumner, 108; Wilde v. Jenkins, 4 Paige, 481; 
 Daikin v. Demming, 6 Paige, 95; Hutchins v. Hope, 7 GUI. 119; Chesson o. 
 Chesson, 8 Ired. Eq. 141; Burwell Ex'ors v. Anderson, Adm'r, &e., 3 Leigh, 353. 
 
 '' 2 Lomax on Ex'ors, 524-525; Stamper's Adm'r v. Gamett et als, 31 Grat. 550. 
 For interpretations of "provision of the statute (if, 2921, Code W. Va., Ch. 104, J 7) 
 as to the return day of the execution and of the time of the right to require pay- 
 ment, &c., see MoCormick v. Wright, 79 Va. 524; Morrisons. Lavell, 81 Va. 519. 
 As to the present statute see also 1 Bart. Law Pr. p. 62. 
 
 'Hudson et als v. Hudson's Ex' or, &c., 3 Band. 117. Limitation to proceed- 
 ings for contribution, see Camp v. Bostwick, 20 Ohio, 337; 5 Am. B. 669; Scott v. 
 Nichols, 27 Miss. 94; 61 Am. Dec. 503; note, 504; Harper's Adm'r v. McVeigh, 
 82 Va. 751; 1 Bart. Law Pr. 106. 
 
 *Mayo's Ex' or et alv. Carrington's Ex' or, &c., 19 Grat. 125. 
 
128 LIMITATION TO SUITS IN EQUITY. § 32 
 
 the suit is to enforce the specific performance of a contract to 
 convey lands, courts of equity ofteij follow and adopt the statutes 
 fixing a limit to real actions.* 
 
 The statutes of Virginia on this subject have been changed 
 from time to time ; but those now in force, providing both the 
 limit to the action and the exceptions thereto, are found in the 
 Code, §§ 2722, 2723, 2915, 2916; Code of West Va., Ch. 90, 
 §§ 1, 2; Ch. 104, §§ 1, 2.' Owing to the general rule that the 
 specific performance of a contract will not be enforced in equity 
 unless the party seeking it has not been in default,^ but on the 
 other hand, has shown himself to have been ready, eager, prompt 
 and desirous of maintainiag his rights,* the rule of laches is more 
 strictly applied ' in cases of this character than in ordinary suits 
 for accounts, &c.; and hence, although in some instances along 
 delay * has been held insufficient to bar the complainant's rights, 
 yet in others a very short time has sufficed for that purpose.' 
 
 Appeals. 
 
 § 32. The statute of Virginia' provides that any person who is 
 a party to a case in chancery wherein there is a decree or order 
 dissolving an injunction, or requiring money to be paid, or the 
 possession or title of property to be changed, or adjudicating the 
 principles of a cause, or wherein there is a final decree or order, 
 may present a petition for an appeal, except that no petition shall 
 be presented from any final decree or order, which shall have been 
 
 1 Preston v. Preston, 95 U. S. E. 203; 2 Lomax Digest, 93. 
 
 ^ See also 2 Minor' s Institutes, from p. 501 to 513. 
 
 ^ Hale V. Wilkinson, 21 Grat. 90. 
 
 *SetonD. Slade, L. Cases in Eq. Vol. 2, Pt. 2, p. 1051; Booten v. Scheffer, 21 
 Grat. 491; Benedict v. Lynch, 1 Johns. Chy. R. 370; Bowles v. Woodson, 6 Grat. 
 78; 2 Lomax' s Digest, 95. 
 
 5 Leading Cases in Eq., Vol. 2, Pt. 2, p. 1121. 
 
 « 1 Madd. Chy. 417. 
 
 ' 1 Madd. Chy. 418. See also Richardson v. Baker, 5 Call. 514; 2 Lomax' s 
 Digest, 100-101 ; Powell et cd v. Berry et al, 91 Va. 568. 
 
 8 J 3454 and § 3455 as amended by act of May 1, 1888, Acts 1887-8, p. 17. 
 Two years in West Virginia, Code, Ch. 135, J 3. 
 
§ 32 APPEALS. 129 
 
 rendered more than one year before the petition is presented, nor 
 more than six months, if the decree appealed from is a decree re- 
 fiisLng a bill of review to a decree rendered more than six months 
 prior to the time the bill of review was offered.^ 
 
 The limit fixed by act of Congress ^ for appeals from the courts 
 of the United States to the supreme court of appeals is also two 
 years. 
 
 It is not now proposed to discuss' what constitutes such a final 
 decree as that an appeal from it will be barred unless the petition 
 be presented within two years from its date ; but regarding that as 
 settled, to consider what is the extent of the limitation to appeals 
 therefrom. 
 
 It is a sufficient compliance with the terms of the statute if the 
 petition for an appeal be presented * within the limited time ; and 
 even when the statute' provided that no writ of error or supersedeas 
 should be granted to any judgment of a court of law after the 
 expiration of five years from the time when such judgment was 
 made final, and when the time at which the order of the judge 
 allowing the supersedeas was regarded as the commencement of 
 the proceeding in reference to the operation of the statute of limita- 
 tions,^ it was held ^ that when a petition was presented within the 
 prescribed time, but through the inadvertence of the court it was 
 not acted upon, it was nevertheless not too late to grant the 
 supersedeas. 
 
 ^ The limitation to a bill of review rvins from the date of the final decree. Bu- 
 ford V. N. Boanoke Land Co., 94 Va. 616. 
 
 ^ Bevised Statutes of the United States 1873-'74, p. 188. For the limitation to 
 appeals to the circuit courts of appeal of the United States see act of Congress of 
 March 3, 1891, as amended by act of February 18, 1895. Foster's Federal Pro- 
 cedure, Vol. 2, p. 1238. 
 
 ' Of this see Post, Vol. 2, § 234. 
 
 * Ambrouse's Heirs v. Keller, 22 Grat. 769; Frazier v. Frazier etals, 77 Va. 775; 
 Acker v. A. & F. E. B. Co., 84 Va. 648. 
 
 5 1 Bev. Code, Ch. 128, ? 19, p. 492. 
 
 ^Anderson's Adm'rj). Lively, 6 Leigh, 80. 
 
 'Pugh's Ex'orw. Jones, 6 Leigh, 299. 
 
 9 
 
130 LIMITATION TO SUITS IN EQinTY. § 32 
 
 The statute of Virginia^ ftirther provides that no process shall 
 issue upon an appeal to or from a fiuaP decree or order, if, when 
 the record is delivered to the clerk of the appellate court, there 
 shall have elapsed one year since the date of such decree or order ; 
 but the appeal shall be dismissed wheriever it shall appear that 
 one year shall have so elapsed, or before such bond is given as is 
 required to be given, before the appeal, writ of error, or supersedeas 
 takes effect. 
 
 The two things, then, essential to securing an appeal in time, 
 are, first, a petition for an appeal must be presented within one 
 year after the rendition of the final judgment, decree or order 
 complained of; and second, the record must be delivered to the 
 clerk of the appellate court, and such bond be given as is required, 
 before the appeal takes effect, within one year from the date of 
 such final decree or order.^ 
 
 ' ? 3474; Code W. Va., Ch. 135, § 17. Five years by this section of the Code 
 of West Virginia. 
 
 ^ Pace, Assignee, v. Ficklin's Ex' or, 76 Va. 292; Jameson v. Jameson's Adm'r, 
 86 Va. 51; Callaway v. Harding, 23 Grat. 542. 
 
 'Callaway v. Harding, 23 Grat. 547; Otterback v. A. & F. R. E. Co., 26 Grat. 
 940. A proviso extending the time for perfecting appeals in cases where any decree, 
 was rendered prior to June 23, 1870, was added to the statute, and. is fully dis- 
 cussed in the case just cited; but as the time of that extension has long since 
 passed, it is no longer a matter of any importance. The same may be said of that 
 provision of the statute excluding from the calculation the period from January 
 26, 1870, to K^ovember 5, 1870; and of the decision that the time during what is 
 known as the stay law should not be excluded from the calculation. See Rogers 
 V. Strother el ah, 27 Grat. 417. But it wUl be observed that the statute of West 
 Virginia (Code, Ch. 135 i 3), unlike that of Virginia, does not contain the word 
 "final," and whUe, therefore, the limitation in Virginia is confined to final decrees 
 or orders and there is no limitation to the right of appeal from an interlocutory 
 decree, yet the West Virginia statute applies to all appealable decrees whether 
 final or interlocutory. But an appealable decree, whether final or interlocutory, 
 will bring with it for review all preceding non -appealable decrees or orders, no 
 matter how long they may have been rendered before the appeal was taken. (Lloyd 
 V. Kyle, 26 West Va. 534. ) TJie principle thus decided necessarily implies that 
 the appellate court cannot review any errors in an appealable decree which was 
 rendered more than two years before the appeal was allowed, even though the said 
 decree was not final and the appeal was rightly obtained from a subsequent decree 
 for errors which did not arise out of errors in said former decree, and had no con- 
 
§ 32 APPEALS. 131 
 
 It sometimes happened, however, that an appeal from a final 
 decree was obtained beyond the limit prescribed by law, by reason 
 of the peculiar condition of the pleadings. The statute ^ provided 
 that no bill of review (except that an infant, married woman or 
 insane person, might exhibit the same within three years after the 
 removal of his or her disability) should be allowed to a final 
 decree, unless it was exhibited within three years next after such 
 decree ; but it has been held ^ under that statute that an appeal 
 from a decree of the court refusing to allow a bill of review to be 
 filed, if the first decree was final, brings up for consideration the 
 correctness of such decree ; and hence even after the right to ap- 
 peal from a final decree was barred by the statute of limitations, 
 a bill of review might be oiFered, and if refused an appeal will lie 
 from that refusal, and that will bring up for consideration the 
 decree, an appeal from which would be otherwise barred. Whether, 
 if the case was not a proper one for a bill of review, the court of 
 appeals would nevertheless go back to the first error, and reverse 
 the original decree when an appeal from it is barred by the stat- 
 ute, was a question which the courts left in doubt,^ but to so hold 
 would appear to defeat the end proposed by the statute, of quiet- 
 ing litigation within as brief a period as possible after final decree. 
 It was to change the effect of these rulings upon the question of 
 limitations to appeals where a bill of review is filed that the statute 
 in Virginia was amended.* 
 
 nection therewith. (Hoy v. Hughes, 27 W. Va. 778; Tieman's Adm'r v. Mini- 
 hini, 28 W. Va. 314). But by i 17 of Ch. 135 of the Code of W. Va. it is pro- 
 vided that ' ' no process shall issue upon any appeal, writ of error or supersedeas 
 allowed to or from a final decree or order, if when the record is delivered to the 
 clerk of the appellate court there shall have elapsed five years since the date of 
 such final judgment, decree or order." 
 
 1 Code 1873, Ch. 175, § 5, now ? 3454. The rules in West Virginia in this 
 respect are stated in note 3, p. 130 ante. See also Middleton v. Selby, 19 W. Va. 167. 
 
 2 Ambrouse's Heirs v. Keller, 22 Grat. 769. 
 ' Goolsby, &c. V. St. John, 25 Grat. 164. 
 
 * The limitation to the right to file a bill of review runs from the date of the 
 final decree. Buford v. N. Eoanoke Land Co. , 94 Va. 616. 
 
132 LIMITATION TO SUITS IN EQUITY. § 33 
 
 Rehearing and Review. 
 
 § 33. The statute imposes no limit to rehearing a decree/ except 
 in cases decided by the court of appeals,^ and where a party has 
 not been served with process.^ In the former instance the court 
 of appeals may rehear any cause decided by it within the last fifteen 
 days of the preceding term, and any case during a pending term, 
 provided one of the judges who decided the cause adversely to the 
 applicant shall certify that in his opinion there is good cause for 
 such rehearing. In the latter case, if a party does not appear 
 before the date of the decree or order, he or his representative 
 may, within three years from its date, unless he be served with a 
 copy of the decree or order more than a year before the end of the 
 said three years, petition to have the case reheard, and may plead 
 or answer, and have any injustice in the* proceeding corrected. If 
 he be served with a copy of the decree or order, then he must 
 petition for a rehearing within one year from the time of such 
 service. 
 
 In the case of James River and Kanawha Co. v. Littlejohn, 18 
 Grat. 53, it was held that the fact of a final decree having been 
 entered in the circuit court, and an appeal taken and then pending, 
 would not prevent a party from filing his petition in the lower 
 court for a rehearing under the statute, but because such a petition 
 was filed, the court of appeals would not, for that reason, dismiss 
 the appeal then pending ; * for a decree complained of can only be 
 altered or set aside, not upon the filing of the petition, but on the 
 rehearing ; ' that, however, being had, the dismission of the appeal, 
 
 1 Kendrick et ah v. "Whitney et ah, 28 Grat. 651; Jameson v. Jameson's Adm'r, 
 86 Va. 51; Wayland & Wife v. Cronk's Ex' or, 79 Va. 602; Trevelyan's Adm'r v. 
 Tofil, 83 Va. 141; Woodson's Ex' or v. Leybmm et ah, 83 Va. 843; Staples' Ex' or 
 V. Staples et ah, 85 Va. 76. But after delay and lapse of time the decree cannot 
 be set aside except upon very strong grounds. Barry v. Barry, 1 Md. Chy. Dec. 20. 
 
 2 § 3492, as amended by act of May 1, 1888, Acts 1887-8, p. 18. 
 5 2 3233; Code W. Va., Ch. 124, § 14. 
 
 * See also Moran v. Johnston et als, 26 Grat. 109. 
 ^ Piatt V. Howland, 10 Leigh, 507. 
 
§ 33 EEHEARING AND REVIEW. 133 
 
 to the extent of the change in the decree appealed from, would 
 follow as a matter of course. 
 
 In the case before cited (18 Grat. 53,) the members of the court 
 differed on the question of the time at which the statute would 
 cease to run ; Judge Joynes dating it from the time that the peti- 
 tion should be presented to the court, whether leave to file was 
 required or not ; but Judge Anderson thought the true date to be 
 the time at which leave was given to file the petition and answer. 
 Judge Moncure, the only other judge sitting in the case, expressed 
 no opinion on the subject. The opinion of Judge Joynes seems to 
 be the more consistent with sound reason. 
 
 Both Judges Anderson and Joynes agreed that diligence should 
 be used after the petition is filed in prosecuting the case, and if a 
 party be guilty of laches the court would in its discretion dismiss 
 liis proceedings.' 
 
 Where there has been a decree by default, the statute ^ provides 
 that the court which rendered the decree may on motion reverse 
 it, after reasonable notice to the adverse party, and within three 
 years from the date of the decree. 
 
 If there be a final decree, both the statute cited, and those 
 statutes barring the right of appeal and of review will be appli- 
 cable to it, although I suppose, even after the time for appeal or 
 bill of review has passed, the right to make the motion will still 
 exist during the three years from the date of the decree, and there 
 may be an appeal from, or bill of review to, the court's action 
 upon such motion within the time limited to either of these pro- 
 ceedings ; but if the decree be interlocutory in its character, since 
 there is not, and never has been, any limit to an appeal from, or 
 
 ' Anderson's Adm'r v. Lively, 6 Leigli, 77; Williamson v. Gayle et als, 4 Grat. 
 180; Eawlings' Ex'r v. Eawlings et als, 75 Va. 76. 
 
 ^ ? 3451, as amended by Act of February 20, 1894, Acts 1893-'4, p, 376. Five 
 years in West Va., Code, Ch. 135, § 5. The notice of the motion need not specify 
 the errors. (Saunders v. Griggs' Adm'r, 81 Va. 506). But see on this subject 1 
 Bart. Law Pr. p. 574. This statute does not preclude resort to a bUl of review for 
 relief. Gallatin L. C. & O. Co. v. Davis, W. Va.; 28 S. E. E. 747. 
 
134 LIMITATION TO SUITS IN EQUITY. § 33 
 
 rehearing of such a decree,' except such as by reason of laches the 
 court in its discretion may impose, so it has been declared that, in 
 the enactment of the statute cited, it was not the intention of the 
 legislature to alter the rules of practice in this respect, but to 
 afford an additional remedy by motion in certain classes of cases 
 to reverse or amend an interlocutory or final decree (the only 
 alteration being that where the decree is by default), the party 
 aggrieved must proceed by motion or by petition for a rehearing, 
 which is in effect a motion, before an appeal can be taken in the 
 cause. 
 
 The same learned judge calls attention to the fact that there is 
 no distinct line of demarcation between the cases in which appli- 
 cations for rehearing interlocutory decrees should be made by 
 motion, and those in which they should be made by petition, the 
 practice in this respect being generally regulated by the circum- 
 stances of each case.' 
 
 A distinction has been said to exist in this respect between a 
 mere order, which may be corrected by motion,' and a decree upon 
 the merits, which can only be set aside by petition ; * but as the 
 distinction between an order and a decree is not in itself free from 
 doubt, the discrimination is not much aided by that test. A peti- 
 tion will, however, always be treated as a motion, where a motion 
 would be proper, but ^ motion will not necessarily be permitted 
 to serve the purposes of a petition.*^ 
 
 Where there is a final decree, it cannot be reheard except by a 
 
 ^ Newland's Chy., p. 188; Cocke's Adm'r v. Gilpin, 1 Rob. E. 22; Adams' Eq., 
 marg. 379; Land v. Wickham, 1 Paige, R. 256; Kendrick et cds v. Whitney et cds, 
 28 Grat. 651. In one case a rehearing was had after eighteen, and in another after 
 twenty-five years, from the date of the decree. But a limit exists by statute in 
 West Virgmia, Code, Ch. 135, | 3. 
 
 2 Kendrick et ah v. Whitney et cd, 28 Grat. 653; 3 Dan. Chy. Pr. 244; Newland's 
 Chy. 185, 186; Moore v. Hilton, 12 Leigh, 1, 26; Banks v. Anderson ci ah, 2 H. 
 & M. 20. See Fowler v. Lewis' Adm'r, 36 W. Va. 130. 
 
 ' Fanning v. Dunham, 4 Johns. Chy. R. 35. 
 
 *Radley, &c. v. Shaver, &c., 1 Johns. Chy. R. 200. 
 
 ' An answer may be treated as a petition to rehear. Staples' Ex' or v. Staples, 
 85 Va. 76. 
 
§ 33 REHEARING AND REVIEW. 135 
 
 bill of review, and this (except that an infant, married woman, or 
 insane person may exhibit the same within one year after the 
 removal of his or her disability) must be exhibited within one 
 year next after the date of the decree sought to be reviewed.* 
 
 Decrees of the court of appeals are always final, whether the 
 appeal be from a final or interlocutory decree of the court below ; 
 and where the court of appeals makes a decree, and sends the cause 
 back for further proceedings, there cannot be a bill of review to 
 correct the decree of the court of appeals, unless it be on the 
 ground of after discovered evidence.^ 
 
 So far as the matter of limitations is affected by the question of 
 whether the decree is interlocutory or final, the court attaches no 
 importance to the mere form of the application for relief; for 
 while a bill of review lies to a final decree only, yet if the court 
 determine that the decree is interlocutory, it will treat the bill of 
 review ,as a petition for rehearing, and so, if it regard the decree 
 as final, it will treat what is in form a petition for rehearing as a 
 bill of review.' 
 
 It is incumbent upon a party asking a review to bring himself 
 by the expressions of his bill clearly within the terms of the statute 
 of limitations ; * and if he is protected by some of the savings of 
 the statute, that too should be made plainly to appear. Such an 
 
 ' J 3435. The exception does not apply to a married woman in matters pertain- 
 ing to her separate estate. Three years in West Virginia, and three years .after 
 removal of disabilities. Code W. Va., Ch. 133, § 5. See Pracht & Co. v. Lange 
 et cds, 81 Va. 711; Planters Bank v. Neely, 7 Howard, 80; 41 Am. K. 51. 
 
 2 CampbeU's Ex' or v. CampbeU's Ex' or, 22 Grat. 649. 
 
 'Ambrouse's Heirs v. Keller, 22 Grat. 769; Crickard's Ex' or v. Crickard's 
 Legatees, 25 Grat. 410; Sands v. Lynham, Escheator, 27 Grat. 291; Laidley v. 
 Merrifield, 7 Leigh, 346; Kendriok et ah v. Whitney etah, 28 Grat. 654; Diamond 
 State Iron Co. v. Alex. K. Earig Co., 93 Va. 595. 
 
 * Story's Eq. PL, ? 410; Thomas v. Harvie, 10 Wheat. 146; Minor's Inst., Vol. 
 4, p. 1254. See Morgan v. Ohio Eiver Co., W. Va.; 19 S. E. E. 592; Davis v. 
 Morris's Ex'ors, 76 Va. 21; Pracht & Co. v. Lange et cds, 81 Va. 711. As to com- 
 putation of time of running of the statute of limitations, see Dunn's Ex' or v. 
 Eenick, W. Va.; 22 S. E. E. 69. 
 
136 LIMITATION TO SUITS IN EQUITY. § 34 
 
 allegation may be denied by the answer of the other party, and if it 
 be not sustained by the proof, the bill of review will be dismissed,* 
 
 Time and Persons excluded from the Statute. 
 
 § 34. The statute of limitations is qualified by certain provisos 
 in favor of persons under the disability of infancy, coverture, or 
 insanity; and in respect of persons dying before the right of action 
 accrues ; and to rights accruing against persons who have resided in 
 the State^ and afterwards departed without the same, or absconded,^ 
 or concealed themselves, or by any other indirect ways or means 
 obstructed * the prosecution of such rights, or where the action 
 abates ; subject to which courts of equity act whenever they apply 
 the statute, either by analogy or in obedience to the law ; ^ and where 
 these courts act only upon their inherent right to refuse relief on the 
 ground of laches, the exceptions contained in the statute are generally 
 the standards by which excuses for laches will be measured. It is a 
 good general rule that no laches or neglect is imputable to a person 
 under disability, because during that time he is not supposed to know 
 
 ' Shepherd v. Larue, 6 Munf. 529. For a discussion of the practice upon bUla 
 of review and petitions for rehearing, see Post, § 107, § 108. 
 
 2 i 2917, § 2931, i 2934, as amended by act March 5, 1894, Acts 1893-4, p. 789, 
 and by act of February 8, 1898, Acts 1897-8, p. 252; Code W. Va,, Ch. 104, § 3, 
 ? 16, § 18. The term "beyond the sea" is omitted from the Virginia statute. 
 For its interpretation, see Angel on Lim., § 200 to § 204; Whitney et al v. God- 
 dard, Adm'r, 20 Pick. 304; 32 Am. Dec. 216. 
 
 'FicHin's Ex' or v. Carrington, 31 Grat. 219; Brown v. Butler, 87 Va. 621. 
 See 2 Bart. Law Pr. 793. 
 
 *Code, U 2931, 2932, 2933 as amended by act of February 19, 1898, Acts 1897-8, 
 p. 441, which amendment omits the words " who had before resided in the State," 
 and inserts " or by continuing to reside without the State," and § 2934 as amended 
 by act of March 5, 1894, Acts 1893-4, p. 789, and by act of February 8, 1898, Acts 
 1897-8, p. 252, providing for excluding from the computation the time of the pen- 
 dency of an action which abates for certain causes ; Code W. Va., Ch. 104, J? 3, 
 16, 18; Harrison et als v. Gibson et als, 23 Grat. 212; Conn. Mut. Ins. Co. v. Duer- 
 son'sEx'or, 28 Grat. 630; Johnston v. GUI, 27 Grat. 587; Danville Bank v. Wad- 
 dill, 27 Grat. 448; Sharpe's Ex' or v. Eockwood, 78 Va. 24; Updike's Adm'r d. 
 Lane, 78 Va. 132; Cole's Adm'r v. Ballard et ah, Id. 139. 
 
 ^ WaUer v. Armistead's Adm'rs, 2 Leigh, 11; Taliaferro, &c. v. Taliaferro, &c., 
 4 Call. 93. For efiect of Code of 1887 on pending actions, see Code, § 2938. 
 
§ 34 TIME AND PEESONS EXCLUDED FROM THE STATUTE. 137 
 
 his rights, or to be able to enforce them ; ^ but if in spite of the fact 
 that a party belongs technically to a disabled class, yet if the right 
 may nevertheless be enforced, as where husband and wife sue in 
 right of the wife,^ the mere fact of coverture or other like disa- 
 bility in a similar case, will not bring the party within the excep- 
 tions to the statute. The fact, however, that a person under 
 disability may sue by his next friend, does not take his case out of 
 the exceptions, for the rights are very different, and the ability to 
 exercise the one will not take away the statutory provision in 
 favor of the other.* 
 
 Unless there is an express saving in the statute, no person will 
 come within its exceptions, and the laws of limitations will operate 
 against persons under disability as well as against others ; ^ and 
 the express exceptions refer only to such disabilities as exist at 
 the time the right of action first accrued ; for while, if several 
 disabilities exist together at that time, the statute will only begin 
 to run at the cessation of the last of them, yet if a second disa- 
 bility occur after those then existing have ceased, it cannot be 
 plead,' for it is a settled rule, that if the statute once begins to 
 run, no subsequent event will interrupt it.* 
 
 1 Ware v. Brush, 1 McLean's E. 533; Calhoun v. Baird, 3 A. K. Marsh. Ky. R. 
 169; GiUespie v. Bailey, 12 W. Va. 70. 
 
 " Harrison et ok v. Gibson et als, 23 Grat. 223; Caperton et al v. Gregory et als, 
 11 Grat. 512; Dandridge et ah v. Minge, 4 Kand. 397; Hillis v. Hambleton's 
 Adm'r, &c. 10 Grat. 300. 
 
 ' Hansford v. EUiott, 9 Leigh, 95; Angel on Limitations, § 195. 
 
 * Buckliu V. Ford, 5 Barb. E. 393; Beckfordv. Wade, 17 Ves. 87; Demarest and 
 Wife V. Wyncoop el ok, 3 Johns. Chy. E. 129. In partition proceedings the infant 
 has no day in court after coming of age; and even if the final decree give him 
 one, it will not affect a bona fide purchaser under the decree. Parker et als v. 
 McCoy et als, 10 Grat. 594. 
 
 * Demarest v. Wyncoop, 3 Jphns. Chy. E. 138; Angel on Limitations, § 194, 
 197; Parsons v. McCracken & Wife, 9 Leigh, 495. The disability must have been 
 a continuing one from the time the cause of action first accrued. Edwards v. Uni- 
 versity, 1 Dev. & Battle Eq. 30 Am. Dec. 170; Hancock v. Hutcherson & Wife, 
 76 Va. 609; Blackwell's Adm'r v. Bragg, 78 Va. 529; Dow v. Eohr, 82 Va. 359; 
 Western Lunatic Asylum v. Miller, 1 S. E. R. 740. 
 
 « Angel on Limitations, ^ 196; Wilson v. Harper, 25 W. Va. 179. 
 
138 LIMITATION TO SUITS IN EQUITY. § 34 
 
 But if the new disability occur before the old one ceases, and 
 survives it, that will constitute the continuous uninterrupted disa- 
 bility which will bring a party within the terms of the excep- 
 tions.^ A person under disability who sues as plaintiff is as much 
 bound by decrees rendered in his suit as if he were sui juris, al- 
 though it is not always true that such an one when a defendant is 
 similarly bound.^ 
 
 In 1 Daniel's Chancery Practice, 205, it is laid down in general 
 terms, that an infant defendant is as much bound by a decree in 
 equity as a person of full age. Therefore, says that author, if 
 there be an absolute decree made against a defendant who is under 
 age, he will not be permitted to dispute it, unless upon the same 
 grounds upon which an adult might have disputed it, such as 
 fraud, collusion or error.' And in the case of a decree of fore- 
 closure, although a day must be given the infant to show cause 
 against it, he can only do so by showing error. He may not 
 unravel the account, nor is he entitled to redeem, by paying the 
 amount due. In other cases it would seem he may obtain leave 
 to amend the answers filed for him, or to put in a new one show- 
 ing grounds of defence not before the court, or not insisted on at 
 the former hearing.' 
 
 This doctrine, to the extent of putting infant plaintiffs and 
 defendants in most cases on an equal footing with adults, has 
 
 iWood V. Ex'ors of Kiker, 1 Paige's Chy. K. 616. These rules depend of 
 course upon the constructions to which the statutes may be susceptible' and the 
 intention of the legislature in this respect may be gathered from other parts of the 
 law, and from the purpose and design of the statute itself, as well as from its 
 subject matter. Tyler on Infancy and Coverture, pp. 142, 163. 
 
 " Brown v. Armistead, 6 Eand. 602; Wilkinson's Adm'r v. Oliver's Bep. 4 H. & 
 M. 450. 
 
 ' The ancient practice that gave an infant a day did not apply to infant trustees. 
 Walsh V. Walsh, 116 Mass. 377; .17 Am. E. 166. 
 
 ■'Opinion of Lee, J., in Parker et als v. McCoy et ah, 10 Grat. 603; MaUack v. 
 Galton, 3 P. Wms. 352; Bishop of Winchester d. Beavor, 3 Ves. E. 314; William- 
 son d. Gordon, 19 Ves. E. 114; Bennett v. Lee, 2 Atk. E. 531; Napier v. Lord 
 Effingham, 2 P. Wms. 401; Fountain v. Cairne, 1 P. Wms. 504; Stephenson v. 
 Stephenson, 6 Page, E. 353; Goddin v. Vaughn's Ex'x, 14 Grat. 123. 
 
§ 34 TIME AND PEESONS EXCLUDED FROM THE STATUTE. 139 
 
 received the fiiUest endorsement of the court of appeals of Vir- 
 ginia;' but wherever the court is asked to sell and convey an 
 infant's inheritance, he is entitled to an opportunity of making a 
 defence at any time within six months after he arrives at full age ; 
 and the only exception to this rule is said to have been in those 
 proceedings in equity under the statute for the sale of small in- 
 heritances of less value than three hundred dollars.^ 
 
 But the right of an infant to show cause against a decree affect- 
 ing his interests after he arrives at age must be, to show such 
 cause as existed at the rendition of the decree, and not such as 
 arose afterwards.* 
 
 It would formerly* have been error to make a final decree 
 against an infant without giving him time to show cause against 
 the same after obtaining full age ; but in Virginia, since the 
 adoption of the Code of 1849— '50, it is not necessary to insert 
 such a provision in the decree, for in any proper case he may, 
 within six months after he arrives at maturity, 'show cause in like 
 manner as if the decree contained such provision.^ 
 
 In addition to the qualifications we have discussed, the legisla- 
 ture of Virginia, on March 2, 1866, passed two acts, by one* of 
 which it was provided that the time between April 17, 1861, and 
 the passage of the act should be excluded from the computation 
 of the time within which, by the terms or operation of any rule 
 
 ' Zirkle v. McCue et als, 26 Grat. 528; Frazier v. Frazier et als, 26 Grat. 500; 
 Lafferty v. Lafferty, 42 W. Va. 785; 26 S. E. E. 262. 
 
 =" 1 Eev. Code 1819, § 20, p. 358. 
 
 'Walker's Ex' or et als v. Page et als, 21 Grat. 643; Zirkle v. McCue et als, 26 
 Grat. 528; Williamson v. Gordon, 19 Vesey, B. 114; Pierce's Adm'rs v. Trigg, 
 10 Leigh, 406. 
 
 * Braxton v. Lee's Heirs, 4 H. & M. 376; Picket, &c. u Chilton, 5 Munf. 467; 
 Jackson's Adm'x, &c. v. Turner, 5 Leigh, 119; Tennent's Heirs v. Pattons, 6 
 Leigh, 196. For the practice and proceedings in cases of sales of lands of persons 
 under disability, see Post, ^ 170. For a further discussion of the effect of the 
 laws of limitations on persons under a disability, see 1 Bob. Pr., p. 613 to 636; 
 Angel on Limitations, Ch. 19 ; Tyler on Infancy and Coverture, Ch. 10 ; 2 
 Minor's Institutes, p. 503 to 505; MatheVs Digest, Vol. 2, p. 418 to 421. 
 
 6 Zirkle v. McCue et al, 26 Grat. 529. 
 
 «Aotsl865-'66, p. 191. 
 
140 LIMITATION TO SUITS IN EQUITY. § 34 
 
 of law, it might be necessary to commence any action or other 
 proceeding, or to do any other act to preserve or prevent the loss 
 of any civil right or remedy, or to avoid any fine, penalty or 
 forfeiture ; and by the seventh section of the other act,^ it was 
 flirther provided that the period during which this act shall remain 
 in force shall be excluded from the computation of the time within 
 which, by the operation of any statute or rule of law, it may be 
 necessary to commence any proceeding to preserve or prevent the 
 loss of any right or remedy. 
 
 The time up to which this act remained in force, and from 
 which the statute of limitations began to run again, has been 
 repeatedly fixed by the court of appeals as January 1, 1869.^ 
 This suspension of the statute has been held to apply to the time 
 within which a fiduciary is compelled to settle his accounts, or be 
 liable to a forfeiture of his commissions ; ^ and also to the statute 
 limiting the right to sue to set aside a fraudulent conveyance ; * 
 but it has been declared not to apply to appeals, writs of error, or 
 supersedeas.^ 
 
 The time at which the statute will cease to run is that at which 
 a suit is first instituted; but it has been held that where an 
 amended bill was filed to make persons in possession of land 
 parties to the suit, the cessation of the running of the statute did 
 not relate bapk to the commencement of the suit, but only to the 
 time at which the amended bill was filed.* 
 
 iAct8l865-'66, p. 183. 
 
 ^ Johnston, Trustee, &o. v. Wilson's Adm'r et ah, 29 Grat. 382; Sexton v. 
 Crockett el ah, 23 Grat. 868; Callaway v. Harding, 23 Grat. 542. To this must 
 be added the provisions of I 2919, Code, as amended by act of February 12, 1896, 
 Acts 1895-6, p. 331. See Ante, p. 113, note 3! 
 
 'Strother et ah v. Hull et ah, 23 Grat. 670; Moses et al v. Hart's Adm'r, 25 
 Grat. 804. 
 
 ' Johnston et als v. GiU et als, 27 Grat. 587. 
 
 ^ Eogers v. Strother et ah, 27 Grat. 417. 
 
 " MiUeir's Heirs v. Mclntyres, 6 Peters, 61. Suing out a writ is the coromence- 
 ment of the suit, but the date of the writ is not conclusive but prima fade evidence 
 of the time the suit commenced. Lambert v. Ensign Mfg. Co., 42 W. Va. 843. 
 For the rules defining when an action is regarded as commenced, see Encyc. of PI. 
 andPr., Vol. 1, p. 119. 
 
CHAPTER III. 
 
 PARTIES TO SUITS IN EQUITY. 
 
 ? 35. The General Rule. 
 § 36. Plaintiffs and Defendants. 
 § 37. Absent and Unknown Persons. 
 ^ 38. Accounts. 
 
 ? 39. Administration of Estates. 
 ? 40. After-bom Persona. 
 i 41. Amended and Supplemental BiUs. 
 § 42. Appeals. 
 2 43. Assignments. 
 ^ 44. Bankrupts and their Assignees. 
 § 45. Change of Parties by Death,' Mar- 
 riage, &c. 
 § 46. Charities. 
 .? 47. Cities, Towns, &c. 
 §48. Corporations. 
 
 1 49. Creditor's BUls, &c. 
 § 50. Discovery. 
 
 2 51. Disabilities of Parties. 
 
 ^ 52. Foreclosure of a Trust or Mort- 
 gage. 
 § 53. Fraudulent Transactions. 
 § 54. Heirs as Parties. 
 ? 55. Husband and Wife. 
 § 56. Injunctions. 
 § 57. Interpleader. 
 I 58. Joint Interests and Obligations. 
 
 ? 59. New Parties. 
 
 § 60. Numerous Parties. 
 
 §61. Partitions. 
 
 § 62. Partnership Suits. 
 
 § 63. Perpetuation of Testimony. 
 
 § 64. Petitions for Kehe'aring, Bills of 
 
 Beview, &c. 
 § 65. Principal and Agent. 
 § 66. Purchasers. 
 § 67. Redemption of Mortgages or 
 
 Trusts. 
 § 68. Remedies over. 
 § 69. Representative Parties. 
 § 70. Resulting Trusts. 
 § 71. Specific Performance and Recis- 
 
 sion of Contracts. 
 § 72. Sureties. 
 § 73. Tenants. 
 
 I 74. Trusts and their Settlement. 
 § 75. WUls. 
 § 76. How Parties may be dispensed 
 
 with. 
 § 77. Effect of Omission or Misjoinder 
 
 of Parties. 
 § 78. How and When Defect of Parties 
 
 may be taken advantage of. 
 
 The General Mule. 
 
 § 35. It is a general rule in equity that all persons interested 
 
 in the subject-matter of the bill, and which is involved in and to 
 
 be effected by the proceedings and result of the suit, should be 
 
 made parties, however numerous they may be.' 
 
 ^West V. Randall, &e., 2 Mason, 190; Clark v. Long, 4 Rand. 452; Wiser v. 
 Blachly, &c., 1 Johns. Chy. R. 437; Colt v. Lesuier, 9 Cow. 329; Major v. Ficklin, 
 85 Va. 736; News Ex. v. Bass, 92 Va. 383; Bailey v. Inglee, &c., 2 Paige, 278; 
 Swan V. Logan, &c., 1 McCord's Chy. R. 231; Story's Eq. PL, § 76; Mitford's 
 
142 PARTIES TO SUITS IN EQUITY. § 35 
 
 " On general principles," said Judge Roane/ " it would seem 
 that those who have and those who want the entire subject of 
 controversy would be proper and sufficient parties. It is enough 
 that all those should be parties defendants to the suit who possess 
 all the rights in controversy in that suit, and therefore can enable 
 the court of equity to make a complete decree upon the subject. 
 It is not necessary that all those should be also parties who will 
 be necessary parties in other suits to which the decision of the suit 
 in question gives rise, by reason of a warranty or otherwise. There 
 is no need to essay the vain attempt to settle by one decision all 
 other suits, and every consequential claim or injury which may 
 grow out of the decision of the point in issue." 
 
 In the United States courts different rules as to the necessity ot 
 making parties have prevailed to some extent, caused mainly by 
 the difficulty which those courts have had, until the recent statute, 
 in making non-resident persons parties to suits. In the case of 
 Williams v. Bankhead, 19 Wallace, 671, Justice Bradley has given 
 
 Chy. PL 190; Richardson v. Davis and Wife, 21 Grat. 709; Williams v. Bank- 
 head, 19 Wal. 571; Armentrout's Ex'orsn. Gibbons, 25 Grat. 375; 1 Danl. Chy. 
 E. 190; Cockburn v. Thompson, 16 Ves. 326; Clifton v. Haig's Ex'ors, 4 Desau, 
 343; Hill and Wife v. Proctor, 10 W. Va. 59; Calvert on Parties, Law Library 
 17, p. 1; James B. and Kan. Co. v. Littlejohn, 18 Grat. 82; Simon v. Ellison et al, 
 90 Va. 157; Hitchcox v. Hitchcox, 39 W. Va. 617 (20 8. E. E. 595); Eexroad v. 
 McQuain et al, 24 W. Va. 32; Lynchburg Insurance Co. v. Tayloe, 79 Va. 671; 
 Burlew, Trustee, v. Quarrier, 16 W. Va. 108; Howell v. Harney, 5 Ark. 270; 39 
 Am. Dec. 376; Walters v. Farmer's Bank, 76 Va. 12; Stovall v. Border Grange 
 Bank, 78 Va. 188; FitzGibbon v. Barry, 78 Va. 755; Yost v. Porter, 80 Va. 855. 
 A suit in chancery will not lie "for the use," but the real persons in interest must 
 be made parties. McCloskey, &c. v. O'Brien, 16 W. Va. 794; Kellam v. Sayer, 
 30 W. Va. 198; Penn v. Hearon, 94 Va. 773. In Keyser v. Eenner's Adm'r, 87 
 Va. 249, upon demurrer being sustained on this ground, the bill was amended 
 making the person in interest a party, but it was held to be error to amend and 
 the bill was dismissed. But by act of February 19, 1898, Acts 1897-8, p. 437, it 
 is now provided that when the legal title to any claim, or chose in action, for the 
 enforcement of the collection of which a court of equity has jurisdiction, is in one 
 person and the beneficial equitable title thereto is in another, the latter may either 
 maintain a suit in the name of the holder of the legal title for his use and benefit, 
 or in his own name, to enforce the collection of the same. 
 1 Mayo V. Murchie, 3 Munf. 401, 402. 
 
§ 35 THE GENEEAL RULE. 143 
 
 the following well defined classification of the rules as to the 
 necessity of making parties to suits in those courts : First, When 
 a person will be directly affected by a decree, he is an indispensable 
 party, unless the parties are too numerous to be brought before 
 the court, when the case is subject to a special rule. Secondly, 
 When a person is interested in the controversy, but will not be 
 directly affected by a decree made in his absence, he is not an 
 indispensable party, but he should be made a party if possible,^ 
 and the court will not proceed to a decree without him if he can 
 be reached. Thirdly, When he is not interested in the controversy 
 between the immediate litigants, but has an interest in the subjec1>- 
 matter which may be conveniently settled in the suit, and thereby 
 prevent further litigation, he may be a party or not at the option 
 of the complainant. It is further declared^ that these general 
 rules are not inexorable, and will yield if the court is able to pro- 
 ceed to a decree, and do justice to the parties before it, without 
 injury to absent persons equally interested in the litigation, but 
 who cannot conveniently be made parties to the suit.^ 
 
 The character of interest referred to may be either legal or 
 equitable, present and direct, or future and remote ; '' but the rule 
 
 ^ The 22d Equity Bule of the United-States courts (Dest/s Federal Procedure, 
 p. 281; see also Eevised Statutes 1873-'74, p. 139, § 737), declares that "If any 
 persons, other than those named as defendants in the bill, shall appear to be neces- 
 sary or proper parties thereto, the bill shall aver the reason why they are not made 
 parties, by showing them to be without the jurisdiction of the court, or that they 
 cannot be joined without ousting the jurisdiction of the court as to other parties. 
 And as to persons who are without the jurisdiction, and may properly be made 
 parties, the bill may pray that process may issue to make them parties to the bill 
 if they should come within the jurisdiction." But by an act of Congress, ap- 
 proved June 1, 1872, Rev. Stat. 1873-'74, p. 139, § 738, provision is made for 
 service of process upon absent defendants wherever found, if practicable, and if 
 such service is impracticable, then for service by publication in such manner as 
 the court shall direct. See also Eobertson v. Carson, 19 Wallace, 100; Traders 
 Bank v. Campbell, 14 Wallace, 97; Barney v. Baltimore City, 6 Wallace, 280. 
 
 2 Payne v. Hook, 7 Wallace, 431. 
 
 ' Story's Equity Pleading, ? 89. See also Foster' s Federal Practice, Vol. 1, J 60, 
 pp. 135-138. 
 
 * Story's Equity Pleading, ?§ 137, 138. 
 
144 PASTIES TO SUITS IN EQUITY. § 35 
 
 has been declared not to extend to parties merely consequentially 
 interested/ although this word has been shown by a learned and 
 much quoted author not to be reliable as a definition of interest.^ 
 
 In Calvert on Parties to Suits in Equity, page 2, are collected ^ 
 various expressions used by learned judges defining this question of 
 the character of iaterest, from which the following are extracted : 
 "All persons materially interested in the subject ; " " all persons 
 who will be necessary to make the determination complete, and to 
 quiet the question ; " " all parties having an apparent right ; " 
 " all parties interested in the estate ; " " all parties having material 
 interests," and " all parties interested in the suit." * The learned 
 author then calls attention to the indefinite character of the at- 
 tempted definitions, in that they leave in doubt, by the use of the 
 terms " materially interested," and " interested," the extent of the 
 interest which will be necessary to possess to make a person a 
 proper or essential party to the suit ; and to the term " subject of 
 the suit," which leaves uncertain the thing in controversy about 
 which the interest must exist.^ He suggests the prayer for relief 
 as the proper criterion for determining the purpose of the suit, 
 and consequently of the interests of individuals ; and, substituting 
 " objeet " for the word " subject," upon a review of all the authori- 
 ties reaches the conclusion that the best rule, for determiniug who 
 are necessary parties, is found in the expression " all persons hav- 
 ing an interest in the object of the suit." 
 
 It is proper to remark, that so far as reliance upon the. terms of 
 the prayer for specific relief is concerned, as matter not referred 
 to in the specific prayer may be passed upon under the general 
 prayer for relief, so it may be that persons not interested in the 
 
 iMitford's Chy. PI. 196 (ed. 1849). 
 
 ^ Calvert on Parties, Law Library 17, p. 3. 
 
 ' See also the elaborate note to Mitford's Chancery Pleadings, pp. 397, 398. 
 
 * A debtor who has compounded his debt and received a release under H 2856, 
 2857, 2859 need not be made a party to a general creditor's suit. Penn el al v. 
 Bahnson, 89 Va. 253. 
 
 ^ See Chapman v. P. & S. E. R. Co. et al, 18 W. Va. 185. 
 
§ 35 THE GENEEAL EULE. 145 
 
 apparent object of the suit may be materially interested in what 
 may nevertheless be there decreed. 
 
 The difficulty appears to exist rather in attempting a more 
 definite exposition than the subject is capable of, than in any lack 
 of clearness and precision in the authorities. The decided cases 
 seem to regard the almost universal statement that those who have 
 a property interest in the object of the suit, and which will be af- 
 fected by its determination as a sufficiently plain statement of the 
 rule, and the student and practitioner may best find out who those 
 persons are, as applicable to a case in hand, by a careful exami- 
 nation of the instances contained in the reported cases. 
 
 The following statement of the matter in Daniel's Chancery 
 Practice, Vol. 1, p. 246, being rather more comprehensive than 
 the views given by the other text writers, I think appropriate to 
 be quoted here : 
 
 " A person may be affected by the demands of the plaintiff in 
 a suit either immediately or consequentially. Where an individual 
 is in the actual enjoyment of the subject-matter, or has an interest 
 in it, either in possession or expectancy, which is likely either to 
 be defeated or disminished by the plaintiff's claim, in such cases he 
 has an immediate interest in resisting the demand, and all persons 
 who have such immediate interests are necessary parties to the 
 suit ; but there may be other persons who, though not immediately 
 interested in resisting the plaintiff's demands, are yet liable to be 
 affected by them consequentially, because the success of the plain- 
 tiffs against the defendants who are immediately interested may 
 give those defendants a right to proceed against them, for the 
 purpose of compelling them to make compensation, either in the 
 whole or in part, for the loss sustained. Those persons, therefore, 
 as being consequentially liable to be affected by the suit, must 
 frequently also be made parties to it. The question, therefore, 
 of who are necessary parties to a suit, in respect to the in- 
 terest in resisting the plaintiff's demands, resolves itself into 
 two, namely : who are necessary parties, first, in respect of their 
 10 
 
146 PARTIES TO SUITS IN EQUITY. § 36 
 
 immediate interest? and secondly, in respect of their consequen- 
 tial interest?" 
 
 A further general test has been laid down by those authorities 
 which have declared that no one need be made a party against 
 whom there could be no decree/ or relief granted/ or who has a 
 mere collateral interest.^ 
 
 Plaintiffs and Defendants. 
 
 § 36. He only can be a plaintiff who has a present subsisting 
 interest in the subject, and this interest must be set forth in the 
 bill, otherwise it is subject to demurrer. This rule applies not to 
 one plaintiff only, but to all the plaintiffs ; and if several persons 
 joined in filing a bill, and it appeared that one of them had no 
 interest, it was formerly held that the bill was open to demurrer,* 
 but now the courts may make such order on the hearing as is right." 
 
 The interests of the co-plaintiffs need not be all equal, nor need ~ 
 they be derived from the same title ; ^ and as to defendants, it is 
 equally incumbent on the plaintiff by his bill to set forth their 
 interests in the subject of the suit as it is to show his own.' , 
 
 All persons having the same kinds of interests, or interests 
 consistent with each other, whether in possession, remainder or 
 reversion, should stand on the same side of a suit ; but if any 
 refuse to appear as plaintiffs, they may be made defendants. Per- 
 sons having conflicting interests, or between whom there is no 
 privity or common interests, should not be joined together,* nor 
 may any one be made a plaintiff without his knowledge or consent.^ 
 
 ' Wynch V. Meal, 3 P. W. 311; Howard v. Stephenson, W. Va. ; 10 S. E. E. 71. 
 
 2 Whitworth v. Davis, 1 V. & B. 550; Story's Eq. PL, § 72; Danl. Chy. Pr., 
 Vol. 1, p. 191, note. 
 
 ' Austin V. Eichardson, 1 Grat. 316. 
 
 * See Mitford's Chancery Pleading, p. 399. For a ruling upon a demurrer to a 
 biU for an improper description of parties, see Highland el al v. Highland el al, 5 
 W. Va. 63. 
 
 5 1 Danl. Chy. Pr., 314 to 317. 
 
 6 Danl. Chy. PL, Vol. 1, p. 345. ''Ibid, 321. 
 
 8 Story's Equity Pleading, 227. 
 
 ^Daniel's Chancery Practice, VoL 1, p. 191, notes. 
 
§ 36 PLAINTIFFS AND DEFENDANTS. 147 
 
 As a consequence, it often happens that, while there should be no 
 conflict between the plaintiffs, the defendants represent between 
 themselves conflicting and variant interests. 
 
 Persons who may be plaintiffs may in general be defined as 
 bodies politic and corporate, and all persons of full age, not being 
 a /erne covert, infant, idiot or lunatic, or otherwise subject to some 
 special disability.^ 
 
 An alien enemy may not/ but an alien friend may always sue. 
 Since, however, an alien enemy may be sued in the courts of this 
 country, it follows as a matter of course that he may defend the 
 suit,' and hence may have process to compel the appearance of his 
 witnesses,* and is entitled when so sued to the benefit of a bill of 
 discovery, that being essential to his defence ; ^ and in certain 
 cases in suits in admiralty an alien enemy may be a party and may 
 assert his rights.^ 
 
 As to alien corporations, both those of foreign countries and of 
 other States of the Federal Union may sue in the State of "Vir- 
 ginia'^ and in the United States ; and the same is true of alien 
 sovereigns. 
 
 The incapacity of persons under the disability of infancy, 
 coverture, &c., to sue or be sued is obviated by the fact that they 
 may be plaintiffs or defendants in the name of guardians, jointly 
 with husbands, by committees, &c.' 
 
 This general subject of parties to suits in equity can only be 
 the subject of a treatise adapted to ready reference by a careful 
 subdivision and classification, and to that object the remainder of 
 this chapter is devoted. 
 
 1 Story's Bq. PL, §51. 
 ' Mitford's Chancery Pleading, 268. 
 
 ' McVeigh v. United States, 11 Wallace, 259; Taylor v. Carpenter, 11 Paige, 292; 
 42 Am. Dec. 114. See also Am. & Eng. Encyc. of Law, Vol. 1, p. 458. 
 * Bacon's Abridgment, Title "Alien D." 
 5 Story's Equity PL, ? 53. 
 
 « The United States v. Certain Shares of Stock, 5 Blatchford, 231. 
 ' Bank of Marietta v. Pindall, 2 Eand. 465. 
 ^ This chapter, Fost, I 51, under head of Disabilities of Parties. 
 
148 PARTIES TO SUITS IN EQITITY. § 37 
 
 Absent and Unknown Persons. 
 
 § 37. Except where express provision is made by statute for 
 such cases, it is held to be a sufficient excuse for not making per- 
 sons parties to a suit, that they are without the jurisdiction of the 
 courts ; but this is only true of such persons as are not indispensable 
 to the just ascertainment of the merits of the cause, and whose 
 interests will not be prejudiced by the decree.^ So if the names 
 of persons who are proper parties are unknown to the complainant, 
 and that fact is charged in the bill, and a discovery of these per- 
 sons is sought for the purpose of bringing them before the court, 
 the objection of want of parties will not be allowed to prevail, 
 both because of the impracticability of making them parties in 
 such a case, and because it is one of the very objects of the bill 
 to obtain the information which will enable the plaintiff to cure 
 the defect.^ 
 
 We have already noticed the rules and statutes governing the 
 courts of the United States in proceedings against absent defend- 
 ants ; ^ similar provision is made in cases wherein a part of several 
 defendants cannot be served with process ; * and for suits in equity 
 against absent defendants, to subject property in the district 
 wherein the suit is brought.^ 
 
 In Virginia the statute^ provides, that on affidavit that a de- 
 fendant is not a resident of the State, or that diligence has been 
 used by 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 
 
 1 Story* sEq. PI., § 78 to §92. 
 
 2 Ibid, I 92; Mitford's Chy. PL, 207; Daniel's Chy. Pr., Vol. 1, p. 288. 
 
 3 Ante, i 35, Ch. 3. 
 
 * Desty's Federal Procedure, p. 115. 
 
 5 Ibid, p. 116. 
 
 2 3230. Code W. Va., Ch. 124, S 11. 
 
§ 37 ABSENT AND UNKNOWN PEESONS. 149 
 
 in a suit for a divorce from the bond of matrimony is under sen- 
 tence to confinement in the penitentiary, an order of publication 
 may be entered against such defendant. And where the bill states 
 that the names of any persons interested in the subject to be 
 divided or disposed of are unknown, and makes such persons 
 defendants by the general description of parties unknown, on 
 affidavit of the fact that the names are unknown, an order of 
 publication may be entered against such unknown parties. The 
 statute further requires that every order of publication shall state 
 briefly the object of the suit, and shall 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 where the court is held, on the first day 
 of the next county or corporation court after it is entered. When 
 such order shall have been so posted and published, if the defen- 
 dant against whom it is entered, or the unknown party, shall not 
 appear within fifteen days after such publication is completed, the 
 case may be tried or heard as to him, 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.' 
 
 There is another provision of the statute^ which permits service 
 of process or notice to be made by any person not a party to or 
 
 1 See |§ 3230, 3231; Code W. Va., Ch. 124, §? 11, 12. In West Virginia the 
 defendant is called on to appear within one month. As to the order of publica- 
 tion and its execution, see Post, § 83, and 1 Bart. Law Pr., p. 278. The names 
 of all the parties must be stated in the publication by which a suit is commenced. 
 Martin v. South Salem Land Co., 94 Va. 28; 2 Va. Law Reg. 744. 
 
 ' § 3232; Code W. Va., Ch. 124, i 13. This provision relates only to natural 
 persons and not to corporations. DUIard v. Cent. Va. I. Co., 82 Va. 734. It only 
 has the effect of an order of publication and no personal judgment can be ren- 
 dered on it. 1 Bart. Law. Pr., p. 282, note; Pennoyer v. Neff, 95 U. S. E, 715. 
 
150 PAEtlES to SUITS IN EQUITY. § 37 
 
 otherwise interested in the subject-matter in controversy, on a 
 defendant resident out of the State, which service it is declared 
 shall have the same effect, and none other, as an order of publica- 
 tion duly posted and published against him.' The return in such 
 case 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 the State. No decree should be rendered affecting the interests 
 of an absent defendant unless it appear, if he be not otherwise 
 brought before the court, that he has been regularly^ proceeded 
 against by order of publication duly published in a newspaper, 
 and posted at the front door of the courthouse ; ^ but it has been 
 held that where the decree recited that the cause came on as to the 
 non-resident upon the bill, order of publication, etc., the court of 
 
 ^ Anderson v. Johnson, 32 Grat. 558. A personal judgment rendered on such 
 service is invalid. Scott v. Noble, 72 Penn. St. 115; 13 Am. R. 663. But although 
 the service was by publication, yet the record recited personal service and a personal 
 judgment was rendered. It was held that it could not be attacked collaterally. 
 WUcher et als v. Robertson, 78 Va. 602; Mann and Wife v. Brinkley et als, 85 Va. 
 60. See Am. & Eng. Encyc. of Law, Vol. 12, p. 147 et seq.; Paine' s Lessee v. 
 Mooreland, 15 Ohio, 435; 45 Am. Dec. 585; note, p. 589. A statute permitting a 
 personal judgment on such process is unconstitutional. Am. & Eng. Encyc. of 
 Law, Vol. 22, p. 140. But where a statute provided that foreign insurance com- 
 panies, as a pre-requisite to doing business in the State, should designate an attor- 
 ney therein, upon whom process in such suits against such companies might be 
 served, it was held that the service of a summons on an attorney so designated gave 
 to the court jurisdiction, so as to enable it to render a judgment valid within the 
 territorial limits, and enforceable therein against defendant's property found there. 
 (Gibbs V. The Queen Insurance Company, 63 N. Y. 114; '20 Am. E. 513. ) The 
 effect of this decision was to dispense with the necessity of an attachment, and to 
 make the judgment not merely good m rem, but good as a personal judgment 
 within the territorial limits of the power that enacted the statute. It did not go 
 the length of making such a judgment valid in personam in any other jurisdiction. 
 See also McEwan v. Zimmer, 38 Mich. 765; 31 Am. E. 332. The reasoning of 
 course applies to an agent as well as to an attorney. For service of process on 
 foreign insurance companies, see ? 1266; Code W. Va., Ch. 34, § 15. On corpor- 
 ations, § 3225 as amended by act of March 2, 1894, Acts 1893-94, p. 614; and by 
 act of February 24, 1896, Acts 1895-6, p. 445; Code W. Va., Oh. 124, § 7. See 
 Post, I 81. 
 
 ^ Eobinson's Practice, Vol. 7, p. 56. 
 ' Hadfield v. Jameson, 2 Munf. 53. 
 
§ 37 ABSENT AND UNKNOWN PERSONS. 161 
 
 appeals would conclude from that, that all the requisites of the 
 statute had been complied with.^ 
 
 A decree against a non-resident founded upon an order of pub- 
 lication can only affect him so far as the property within the 
 jurisdiction of the court is concerned, and beyond that property 
 he has been declared to be not boxmd personally by the decree ; 
 although in England a different rule has been held to prevail in 
 admiralty cases.^ 
 
 Upon the subject ot such decrees, the supreme court of the 
 United States has held that the judgment of the court, although 
 in form a personal judgment against the defendant, has no effect 
 beyond the property attached in that suit ; * no general execution 
 can be issued for any balance unpaid after the property attached 
 is exhausted ; no suit can be maintained on such judgment, in the 
 same court or any other ; it cannot be used in any other proceeding 
 not affecting the attached property ; the costs in that proceeding 
 cannot be collected of the defendant out of any other property 
 than that attached in the suit ; the suit itself cannot proceed unless 
 the officer finds some property of the defendant on which to levy 
 a writ of attachment ; * and no title to property passes by a sale 
 under an execution issued upon such a judgment.' 
 
 'Craig V. Sebrell, 9 Grat. 133; Moore et al v. Holt, 10 Grat. 291; Hunter's 
 Ex' or V. Spotswood, 1 Wash. 145; Gibson v. White, 3 Munf. 94. 
 
 2 Bourke v. Granberry, Gilm. 16; Harris v. Pulman, 84 111. 20; 25 Am. R 416; 
 Eobinson Pr., Vol. 7, p. 154; HaLrston et als v. Medley, 1 Grat. 108; Eaton?). 
 Hasty, 6 Neb. 419; 29 Am. K. 365; Litowich v. Litowich, 19 Kans. 451; 27 Am. 
 B. 145. 
 
 'So held in O'Brien et als v. Stephens et als, 11 Grat. 610; but in the case of 
 WUliamson v. Gayle et als, 7 Grat. 152, it was held that the attaching creditor, 
 having established his debt, was entitled to a personal decree against the absent 
 debtor, though the whole property attached was decreed to be subject to the debt 
 of another party; and in the case of Schotield v. Cox et als, 8 Grat. 533, the same 
 conclusion was reached. A bill cannot be taken for confessed as ,to a person sum- 
 moned by publication. Barrett v. McAlister, 33 W. Va. 738. 
 
 * Cooper V. Eeynolds, 10 Wallace, 318; Eastman v. Wadleigh, 65 Me. 251; 20 
 Am. E. 695. See also Post, § 175. 
 
 ^Pennoyer v. Neff, 5 Otto, 714. See also Robinson's Practice, Vol. 7, p. 56, 
 and notes. 
 
152 PARTIES TO SUITS IN EQUITY. § 37 
 
 This last proposition was the subject of consideration by the 
 court of appeals of Virginia, in the case of Roote's Ex'x v. 
 Tompkin's Trustees, 3 Grat. 98, and it was there held. Judge 
 Allen delivering the opinion of the court, that while such a decree, 
 so far as it reached beyond the cause or thing subject to the juris- 
 diction of the court, and purported to operate in personam, was 
 not of such binding and conclusive character as to preclude all 
 inquiry into the merits of it, yet it was entitled to all the respect 
 to which any other decree is entitled in all collateral controversies, 
 so that, if property should be sold under an execution issued 
 thereon, the title could not be impeached by objection to the form 
 or merits of the decree.' 
 
 In the case of Fisher & Bro. v. March, 26 Grat. 777, Judge 
 Moncure, speaking of a proceeding by foreign attachment, upon 
 a judgment rendered in another State, said : " If the debtor will 
 not appear and defend himself, in person or by attorney, the 
 creditor will go on to establish his claim in the mode prescribed 
 by law; and if he does so, will obtain a judgment, which will 
 have such effect in the State in which it is rendered as may be 
 given to it by the laws of that State ; but it will have no effect 
 in another State as a personal judgment against the debtor." ^ 
 
 ^ See also Burtners v. Keran, 24 Grat. 61 ; James R. & K. Co. v. Littlejohn, 
 18 Grat. 75. 
 
 ' See also Melhop v. Doane, 31 Iowa, 397; 7 Am. R 147. The great weight of 
 authority is in favor of putting decrees for alimony in divorce suits upon the same 
 footing with other foreign judgments; and whatever may be the validity of ex parte 
 judgments upon the marriage relations of the parties, and although the decree may 
 have fuU force and effect upon the property of the defendant within the jurisdic- 
 tion of the court rendering it, yet in much the larger number of adjudged oases it 
 has been held that the judgment rendered in a suit for divorce, in a State where 
 the cause of action did not arise, and where the parties were not then living as 
 husband and wife, and where the defendant in the proceeding never was served 
 with process, nor voluntarily submitted to the jurisdiction of the court, is wholly 
 void in any other jurisdiction than the one in which it was rendered. Prosser v. 
 "Warner, 47 Vt. 667; 19 Am. R. 135, citing Barber v. Root, 10 Mass. 260; Hanover 
 V. Turner, 14 Id. 227; Lyon v. Lyon, 2 Gay, 369; Dorsey v. Dorsey, 7 Watts, 349; 
 Maguire v. Maguire, 7 Dana, 181; Hull u. HuU, 2 Strobh. Eq. 174; Edwards d. 
 Green, 9 La. Ann. 317; Irby u. Wilson, 1 Dev. & Bait. Eq. 568, 576; Borden v. 
 
§ 37 ABSENT AND UNKNOWN PERSONS. 153 
 
 In the case of Underwood v. McVeigh, 23 Grat. 409, Judge 
 Christian says, that it is undeniably true as a general proposition, 
 that a sheriff's deed conveying property which has been duly 
 levied upon, and fairly sold under a valid judgment rendered by 
 
 Pitch, 15 Johns. 121; Bradahaw v. Heath, 13 Wend. 407; Vischer v. Vischer, 12 
 Barb. 640; McGiffert v. McGiffert, 31 Id. 69. Cmtra: Harding v. Alden, 9 
 Greenl. 140; Ditson v. Ditson, 4 E. I. 86; Tolen v. Tolen, 2 Blackf. (Ind.) 407. 
 See also Jackson v. Jackson, 1 John. E. 424; Story on Conflict of Laws, §| 229, 
 230; 2 Kent's Commentaries, * 108-109; Eobinson's Practice, Vol. 7, p. 320; 
 Bishop on Marriage and Divorce, Vol. 2, ^ 141, 4th ed. In the case of Pennywit 
 V. Foote, 27 Ohio St. 600, 22 Am. E. 340, it was held that a judgment rendered 
 by a circuit court of the State of Arkansas on an action brought in 1857, but con- 
 cluded whUe the State of Arkansas was a member of the Confederate States, could 
 not be enforced in the State of Ohio. But it has been repeatedly held by the 
 supreme court of th« United States that the decrees of the courts of the States 
 composing the Confederate States were binding and valid between the parties to 
 the suits. 
 
 As to the validity of a decree for the divorce itself, the general principle seems 
 to be the same as in other suits; that is, that all judgments rendered anywhere 
 against a party who had no notice of the proceeding, are rendered in violation of 
 the first principles of justice, and are null and void. (2 Kent's Com. * 109. ) Mr. 
 Conway Eobinson (7 Eob. P. 320-321), declares that it is settled in Pennsylvania 
 (Bishop on Marriage and Bivorce, Vol. 2, § 155, 4th ed. to the contrary notwith- 
 standing), and Mr. Eobinson evidently concurs in the conclusion, that to give 
 jurisdiction to decree in divorce both parties must be within the jurisdiction of the 
 court granting the divorce, unless the defendant has removed from what was before 
 thrf common domicU of both. The conclusion stated on the authority of the great 
 mass of American decisions is, that the law of the place of actual bona fide domicil 
 of the parties gives jurisdiction. (Story on Conflict of Laws, §§ 229, 230a; Jack- 
 son V. Jackson, 1 John. E. 424; 2 Kent's Com. * 108; Gettys v. Gettys, 3 Lea. 
 (Tenn.) 260; 31 Am. E. 637; Broder v. Pitch, 15 John. E. 121; Bradshaw «. 
 Heath, 13 Wend E. 407; People- ■!>. Baker, 76 N. Y. 78; 32 Am. E. 274.) All 
 the modem cases on this subject, and that of other foreign judgments, are collected 
 and classified in the notes to the cases of Dunlop v. Cody, 7 Am. E. 186; Hofiinan 
 V. Hofiinan, Id. 302; Marx v. Fore, 11 Am. E. 435; and Hood v. State, 26 Am. 
 E. 27. See also Am. Dec. 747 to 752, note. The general rule, of course, is that 
 the domicil of the wife is that of her husband; but this rule is not allowed to con- 
 trol in cases of divorce where the husband changes his residence with a view either 
 to obtaining or defeating a divorce. Guier v. O' Daniel, 1 Am. L. Cas. 757 ; Colvin 
 V. Eeed, 55 Perm. 380. It is also held that service by publication or otherwise, as 
 provided by statute, is sufiicient to justify a decree of divorce binding in personam, 
 where the defendant has his domicil in the State where the proceeding is had, 
 although he may at the time be abiding in some other State, and may never have 
 appeared in the suit. Hunt v. Hunt, 72 N. Y. 217; 28 Am. E. 129. These rules 
 are not in conflict with the established doctrine that a decree in divorce, valid and 
 
154 PARTIES TO SUITS IN EQUITY. ' §37 
 
 a court of competent jurisdiction, passed the legal title to the 
 purchaser, the exceptions, or one of them, being where the decree, 
 as was true in this case, had been obtained by fraud. But in the 
 same case, the same able and learned judge lays down the general 
 proposition, that " it lies at the very foundation of justice, that 
 every person who is to be affected by an adjudication should have 
 an opportunity of being heard in the defence, both in repelling 
 the allegations of fact and upon the matter of law ; and no sen- 
 tence of any court is entitled to the least respect, in any other court or 
 elsewhere, when it has been pronounced ex parte, and without oppor- 
 tunity of defence." * 
 
 effectual by the laws of the State in which it is obtained, is valid and effectual in 
 all other States. Cheever v. Wilson, 9 Wallace, 108. Nor with the constitutional 
 provision against impairing the obligation of contracts. Tolen v. Tolen, 2 Blackf. 
 407; 21 Am. Dec. 743. Decree of divorce on publication in another State held 
 ineffectual as affecting the custody of children. Kline v. Kline, 57 Iowa, 386; 42 
 Am. E. 47. See the whole subject fully discussed and the cases collected in Am. 
 & Eng. Encyc. of Law, Vol. 5, p. 751 el seq. See also Dorsey v. Dorsey, 7 Watts, 
 349; 32 Am. Dec. 767. 
 
 ^ It has been repeatedly held, that although a judgment of another State shows 
 on its face that the defendant appeared, yet he may by his pleading and evidence 
 aver and prove the contrary. Fisher & Bro. v. Mercer, 26 Grat. 778 ; Bowler v. 
 Huston, 30 Grat. 266; 6 Rob. Pr. 434-439; 2 Smith's Leadmg Cas. 827, 841, 6th 
 Am. ed. ; Mills v. Duryee, 2 Am. Lead. Cas. 778; Aldrioh ii. Kinney, 4 Com.E. 
 380; Thompson v. Whitman, 18 Wall. U. S. E. 457; Knowles v. The Gaslight and 
 Coke Co., 19 Id. 58; HUl v. Mendenhall, 21 Id. 453; Borden v. Fitch, 15 Johns. 
 121; Starbuck v. Murray, 5 Wend. 148; Noyes v. Butler, 6 Barb. 613; Hood v. 
 State, 56 Ind. 263; 26 Am. E. 21, and note on p. 27. And the same has been held 
 of a judgment of another court of the same State in which it was sought to be 
 enforced, even to the extent of permitting such a judgment to be impeached col- 
 laterally. Ferguson v. Crawford, 70 N. Y. 253; 26 Am. E. 589; Mastui v. Gray, 
 19 Kana. 458; 27 Am. E. 149; but as to domestic judgments the contrary rule is 
 very positively laid down in Smith's Leading Cases; Hare & Wallace, 1 Sm. L. 
 Cas., Vol. 1, p. 842 (marg.); Wimbish v. Breeden, 77 Va. 324. When the record 
 does not show personal service the judgment is not conclusive. Bimeler v. Dawson, 
 4 Scammon, 536; 39 Am. Dec. 430; note, p. 435. But when want of jurisdiction 
 appears on the face of the record, a judgment rendered on it is void. DiUard v. 
 Cent. Va. I. Co., 82 Va. 734. As to the right to dispute the record reciting ap- 
 pearance by attorney, see 1 Bart. Law Pr. , p. 274. A judgment when process is 
 served on only one partner, does not bind the other partner. Phelps v. Brewer, 9 
 Cush. 390; 57 Am. Dec. 56. A judgment against an administrator who qualified 
 in another State cannot be enforced against the estate by action in the latter State. 
 
§37 ABSENT AND UNKNOWN PERSONS. 155 
 
 The case of Bowler v. Huston et als, 30 Grat. 266, was an action 
 upon a judgment renderfed in the State of New York, to which 
 the plea was that the defendant had not been served with process, 
 and had not appeared in person or by attorney in the New York 
 court. In this case Judge Moncure, delivering the opinion of the 
 court, declared that it was perfectly competent, in an action in one 
 State, on a judgment rendered in another, to plead and show in 
 his defence that he was not summoned, and did not appear in 
 person or by attorney in the suit in such court, and that, too, even 
 though it be expressly stated in the record of the suit in that 
 court that he was actually summoned ' or did so appear ; that the 
 judgment is not conclusive on either of those points, though it may 
 be conclusive on the merits if the court have jurisdiction of the 
 case ; but that, if such showing is made, the action must fail, 
 because a judgment obtained under such circumstances has no 
 effect outside of the State in which it was rendered.^ 
 
 There can of course be no doubt that a judgment rendered 
 against persons made parties merely by publication, is not conclu- 
 sive against them in any other judicial proceeding in which it is 
 sought to be enforced, and has no effect whatever in any other 
 
 Judyt). Kelley, 11 111. 211; 50 Am. Dec. 455; note, p. 459. For the right of 
 foreign administrators to sue, see Post, § 39; Am. & Eng. Encyc. of Law, Vol. 8, 
 p. 414. 
 
 ^ A statute that a judgment against a party resident of the State, not sued in 
 another State, and duly sununoned there, should be void if the suit would have 
 been barred by the statute of limitations of the first State, was held to be uncon- 
 stitutional. Christmas v. Eussell, 5 Wall. 290. For suit on foreign judgment, see 
 Watkins v. Wortman, 19 W. Va. 78; Gilchrist v. West Virginia Oil and Oil Land 
 Co., 21 W. Va. 115; Am. & Eng. Encyc. of Law, Vol. 12, p. 148t. 
 
 ' The authorities cited by the learned judge in this opinion are as follows: Bis- 
 sell V. Briggs, 9 Mass. 462; Starbuck v. Murray, 5 Wend. 148; Mervin v. Kumbel, 
 23 Wend. 293; Wilson ».,Bank of Mt. Pleasant, 6 Leigh, 570 (2d ed.); Gleason 
 V. Dodd, 4 Met. 333; Shelton v. Tiffin et al, 6 How. 163; Darcy v. Ketchum et al, 
 11 How. 165; Eape v. Heaton, 9 Wise. 328; Public Works v. Columbia College, 
 17 Wallace, 521; Thompson v. Whitman, 18 Wallace, 457; Knowles v. The Gas- 
 light & Coke Co., 19 WaUace, 58; Hill v. Mendenhall, 21 Wallace, 453; Under- 
 wood w. McVeigh, 23 Grat. 409; 1 Kent's Com. (11th ed. ), p. 261; 1 Eob. Pr., 
 219; 6 Id. 437; 7 Id. 109; 1 Smith's Lead. Cas.; 7 Am. ed., pp. 1118-1146; 2 Id. 
 828; 2 American Lead. Cas., 5th ed., pp. 597-664. 
 
156 PAETIES TO SUITS IN EQUITY. § 37 
 
 State than that in which it was rendered ; but this does not deter- 
 mine the question about which, as we have seen, the authorities 
 differ, whether or not a sale under an execution issued upon such 
 a judgment, and levied upon property not involved in or brought 
 into the suit in which the judgment was rendered, is competent to 
 pass a title to property sold under such execution.' 
 
 Appearance and pleading to the suit will of course cover all 
 errors,^ and wiU justify the court in rendering a decree in personam, 
 in what would otherwise have been only a proceeding in rem ; ^ 
 and where there is service of process upon some of the defendants 
 a decree may be rendered which will bind them personally, while 
 
 ' In the case of Pennoyer v. Neff, 5 Otto, 736, Justice Hunt delivered a dissent- 
 ing opinion, thinking that an execution could issue upon such a judgment, and be 
 levied upon property within the State where it was rendered, although no writ of 
 attachment was served upon that property, resting his opinion mainly upon what 
 was said in the case of Jarvis v. Bassett, 14 Wis. 591, that ' ' the essential fact on 
 which the publication is made to depend is property of the defendant in the State, 
 and not whether it has been attached. * * * There is no magic about the writ, 
 [of attachment] which should make it the exclusive remedy. The same legislative 
 power which devised it can devise some other, and declare that it shall have the 
 same force and eflfect. The particular means to be used are always within the 
 control of the legislature, so that the end be not beyond the scope of the legislative 
 power.'' And Justice Hunt adds: "I am not willing to declare that a sovereign 
 State cannot subject the land within its limits to the payment of debts due to its 
 citizens, or that the power to do so depends upon the fact whether its statute shall 
 authorize the property to be levied upon at the commencement of the suit or at its 
 termination." Judge Allen, in the case of Koote's Ex'orti. Tompkins, 3 Grat. 
 Ill, rests his opinion upon the view that such a decree is entitled to all the respect 
 to which any other decree is entitled m aU collateral controversies. There can be no 
 personal judgment upon process by publication (Fowler v. Lewis' Adm'r, 36 W. 
 Va. 112), not even for costs (Freeman v. Alderson, 119 U. S. E. 185). See 
 also Dorr's Adm'r v. Kohr et ah, 82 Va. 359; McGavock et al v. Clark ei als, 93 
 Va. 810. 
 
 2 TubervOle v. Long, 3 H. & M. 309; Coleman v. Waters el ah, 13 W. Va. 278; 
 Burlew v. Quarrier et al, 16 W. Va. 108; 1 Bart. Law Pr., p. 274 and notes. For 
 effect of unauthorized appearance by attorney and confession of judgment by him, 
 see Fowler v. Lee, 10 GUI. & J. 358; 32 Am. Dec. 172. See also Tally «. Beynolds, 
 31 Am. Dec. 737, and note, 744; Eoselins v. Delachaise, 5 La. An. 481; 52 Am. 
 Dec. 597; St. Clair v. Cox, 106 U. S. E. 350. Appearance waives process. Totten 
 V. Nighbert, W. Va.; 24 S. E. E. 627; Groves v. County Court, 42 W. Va. 587. 
 
 5 Fisher & Bro. v. March, 26 Grat. 765; Marx v. Fore, 51 Mo. 69; 11 Am. E. 432. 
 
§ 38 ACCOUNTS. 157 
 
 as to the other defendants it can have no effect except upon the 
 property in controversy.'^ 
 
 While the statute^ provides that, against any person summoned 
 by publication, or any absent person upon whom process is served 
 out of the State, the case may be tried or heard as to them, yet 
 it also provides' that any unknown party or other defendant, who 
 was not served with process, and did not appear in the case before 
 the date of such judgment, decree or order, or the representative 
 of any such, may, within three years from that date,* if he be not 
 served with a copy of such judgment, decree or order more than a 
 year before the end of the said three years, and if he be so served, 
 then within one year from the time of such service, petition to 
 have the case reheard, and may plead or answer, and have any 
 injustice in the proceedings corrected. The petition provided for 
 by this statute may be filed in the court below even pending an 
 appeal ; and if upon such rehearing the decree, or so much of it 
 as is the subject of appeal, is wholly set aiside, the appeal will 
 generally be dismissed ; but if an appeal is taken from the decree 
 on the rehearing, before the dismissal of the first appeal, the 
 appellate court may refuse to dismiss it.^ 
 
 Accounts. 
 
 § 38. In a proceeding to compel an account, all persons on 
 either side having an interest in it are necessary parties ; or if it 
 be a partnership settlement, all the partners, and the personal 
 representatives of those who may have died, should be made 
 
 ' Robinson's Practice, Vol. 7, p. 56. But where, for the purpose of obtaining 
 jurisdiction of the person, a resident of a State was induced by false representations 
 to go to another State, where he was served with summons, it was held that the 
 jurisdiction so acquired by the foreign tribunal was fraudulently obtained, and that 
 fact constituted a good defence to an action brought on the judgment in the State 
 where the defendant resided. Dunlap v. Cody, 31 Iowa, 260; 7 Am. K. 129. 
 
 2 § 3232; Code W. Va., Ch. 124, § 13. 
 
 » i 3233; Code W. Va., Ch. 124, § 14. Five years in West Virginia. 
 
 ' As to the rules of limitations in such cases, see Ante, Ch. 2, ^ 33. 
 
 * James Biver and Kanawha Co. v. Littlejohn, 18 Grat. 53. As to the effect of 
 the statute of limitations in such cases, see Ante, Ch. 2, § 32. 
 
158 PARTIES TO SUITS IN EQUITY. § 39 
 
 parties ; and if it be against executors, to finally settle their ac- 
 counts, all of them should be brought in. 
 
 This is true, whether the interests be or be not in the same 
 right ; as for instance, heirs and personal representatives, residuary- 
 legatees and distributees, mortgagors and mortgagees, and their 
 assignees, persons receiving and holding assets in succession in 
 virtue of their representative characters, and persons having dis- 
 tinct interests in the same security, either jointly or in succession.* 
 
 Where a crew, consisting of a large number of persons, were 
 interested in an account of prize-money, it was held that, either 
 by representation or in their own persons, all the crew must be 
 before the court ; ^ and wherever there are a number of persons 
 interested in the same account, they may sue for themselves, and 
 on behalf of the others.' 
 
 The rule requiring all persons connected with an account to be 
 made parties to a suit for its settlement, has been held to extend 
 to cases where the circumstances have amounted either to collusion, 
 or to such a notice as imposed a liability.'' 
 
 Administration of Estates. 
 
 § 39. The general rule as to making personal representatives 
 parties to suits is, that whenever the deceased himself, if alive, 
 would have been a necessary party,* and the claim aifects his per- 
 sonalty,^ then the personal representative is a proper and essential 
 party. 
 
 Where there is more than one personal representative, all should 
 be made parties, either as plaintiffs or defendants ; '' and if one of 
 
 ' Story's Eq. PI., § 218, 219; Daniel's Chy. Pr., Vol. 1, p. 216, 217, and notes. 
 
 2 Leigh V. Thomas, 2 Vcsey, 312. 
 
 ' Calvert on Parties, 70. See also Post, I 60. 
 
 * Calvert on Parties, 71. 
 
 * Lomax on Ex'ors, Vol. 2, p. 795. 
 
 * Daniel' s Chancery Practice, Vol. 1, p. 224. 
 
 ^ lb. p. 252; Bregaw v. Claw, 4 Johns. Chy. B. 116; Findlay, Ex' or, &c. v. 
 Sheffey, 1 Band. 73; Fabre & Wife v. Colden, 1 Paige, 166. 
 
§ 39 ADMINISTRATION OF ESTATES. 169 
 
 tliem has died, the rule is to make his personal representative a 
 party when he had received assets of the estate for which he has 
 not accounted with the surviving executor, and in respect of which 
 it is sought to charge his estate, otherwise the proceeding may be 
 only against, or on behalf of, the surviving executor.^ Third 
 persons having assets of the estate, or liable to account for the 
 same, may also be joined in a suit against executors where there 
 has been collusion with them,^ or where an executor is insolvent.' 
 
 Where one executor has not qualified, the other may sue alone ; * 
 but if the suit be to carry out the trust of a will, an executor 
 named therein, although he has not qualified, should be made a 
 party to the suit.^ 
 
 In general, the administration of two estates cannot be joined 
 in the same suit ; but where the same parties claim the benefit of 
 both estates, and they are so connected that the accounts of one 
 cannot be taken without the other, the joinder of them in the 
 same suit ;wilLnot be multifariousness.^ 
 
 According to the English rule, an executor de son tort is 
 sometimes sued with the rightful executor, but never with an 
 administrator. This distinction, however, is declared not to exist 
 in Virginia, where an executor de son tort cannot be made a party 
 with either an executor or an administrator. 
 
 The general rule is, that as soon as the rightful executor has 
 begun to act, or an administrator has been appointed, he must be 
 the defendant to any suit by a claimant against the estate, and the 
 executor or administrator may have his remedy over against the 
 executor de son tortJ 
 
 1 Daniel's Chancery Practice, Vol. 1, p. 224. 
 
 2 Story's Eq. PI., ? 165; 2 Lomax on Ex'ors, 809. ^ ^ gxi_ 
 *Bineliartu. Einehart, 2 McCarter (N. J.), 144; Marsh. i). Oliver, 1 McCarter 
 
 (N. J.), 262; 2 Lomax on Ex'ors, p. 796. 
 
 * Thompson, Ex'r, &c. v. Graham, 1 Paige, 384; Judson v. Gibbons, 5 Wend. 224. 
 
 ^ 2 Lomax on Ex'ors, 810; 1 Daniel's Chancery Practice, 388. 
 
 '2 Lomax on Ex'ors, p. 814; Prazier, &c. u. Frazier's Ex' or, 2 Leigh, 649; 
 Wemick v. McMurdo, 5 Kand. 75; Samuel v. Marshall, &c., 3 Leigh, 567; Hansford 
 V. Elliott, 9 Leigh, 79. 
 
160 PARTIES TO SUITS IN EQUITY. § 39 
 
 A creditor of a deceased person may sue an executor de son tort 
 at law, but legatees cannot sue one in equity without the appoint- 
 ment of an administrator de bonis non, and making him a party ; 
 for otherwise a recovery by them would not protect him from the 
 demand of any subsequent administrator de bonis non, as he would 
 be protected by the recovery of a creditor/ 
 
 "When the suit is for an account of the assets of a deceased 
 person, the personal representative of the former representative is 
 properly joined with his present representative.^ 
 
 The executor or administrator, who may sue or be sued, must 
 be such by the appointment of the State or cqjintry where the suit 
 is brought; for a foreign executor or administrator administers 
 the assets of the estate he represents according to the laws of his 
 own country, and as such is not properly answerable in his official 
 capacity to the courts of another country.' Hence, it has been 
 decided that an administrator to whom letters of administration 
 
 ' Lomax on Ex' ors, Vol. 2, p. 816. 
 
 ^ Ibid. But an administrator de bonis nan cannot sue the former administrator 
 or his representatives for a devastavit or for delinquencies in office, either at law or 
 in equity; but the former administrator or his representatives are liable directly to 
 creditors and next of kin. Eeall v. Nevr Mexico, 16 Wall. 535; Wemick v. 
 McMurdo, 5 Kand. 51; Dorsey's Ex' or v. Dorsey's Adm'r, 5 J. J. Marshall, 280; 
 22 Am. Dec. 33; but by the statute in Virginia (Code, J 2534), an administrator 
 de bonis non may sue a curator. Helsley et als v. Craig's Adm'r et ah, 33 Grat. 716. 
 As to guardians, the rule applies; and a second guardian cannot, in his own name, 
 call a former guardian to account; but the bill must be in the name of the ward 
 by his next friend, although he may happen to be the guardian at the time. 
 Minor's Inst., Vol. 1, p. 440. Administrator de bonis non a proper party when 
 money is decreed to be paid to the estate. Hinton v. Bland's Adm'r, 81 Va. 588. 
 
 » Story on Conflict of Laws, ? 513, 514; Mitford' s Eq. PI. 177, 178 ; 2 Kent' s Com. 
 432; Dixon v. Eamsay, 3 Craw. 389; Oney v. Ferguson, 41 W. Va. 568; Crum- 
 lish's Aim' TV. S. V. "R. E. Co., 40 W. Va. 650. Nor can a foreign administrator sue 
 jointly with one who has qualified here. Dickinson's Adm'r, &c. v. McCraw, 4 
 Kand. 158; Hedenberg v. Hedenberg, 46 Conn. 30; 33 Am. B. 10; Am. & Eng. 
 Encyc. of Law, Vol. 8, p. 421; Williams o. Branch Bank, 7 Ala. 906; 42 Am. 
 Dec. 617; Montgomery ti. Milikin, 5 Smede & Marshall, 151; 43 Am. Dec. 507; 
 note, 518; Vrom v. Van Horn, 10 Paige, 549; 42 Am. Dec. 94; Stubblefield v. 
 McRaren,' 5 S. & M. 130; 43 Am. Dec. 502; note, 506; Judy v. Kelley, 11 111. 
 211; 50 Am. Dec. 455; note, p. 459; Smith's Ex' or v. Wiley, 22 Ala. 396; 58 
 Am. Dec. 262; note, p. 268; Dial v. Gary, 14 S. C. 573, 37 Am. B. 737; Fletcher's 
 
§ 39 ADMINISTRATION OF ESTATES. 161 
 
 have been granted in Maryland before the separation of the Dis- 
 trict of Columbia from the original State, could not, after that 
 separation, maintain an action in Washington county, by virtue of 
 those letters of administration, but he must take out new letters 
 within the District.' When an executor from a foreign country 
 receives and brings with him into this State assets of his estate, he 
 may be sued here in equity, and be compelled to account, although 
 he has never qualified as executor in Virginia, and has received 
 no assets here.^ 
 
 Further exceptions to the rule exist in cases where by will land 
 is devised to an executor in trust to sell and pay debts, for in such 
 cases the executor sues as devisee ; ' where a foreign executor has, 
 in virtue of his administration, reduced the personal property of 
 his decedent into possession, so that he has the legal title thereto 
 
 Adm'r v. Saunders, 7 Dana, 345; 32 Am. Deo. 96; note, p. 106; Noonan v. Bradley, 
 9 Wall. 401; Hull v. Hull, 26 W. Va. 1; McNamara ... Dwyer, 7 Paige, 239; 32 
 Am. Dec. 627 ; Fugate v. Moore, 86 Va. 1047. See the cases collected in 8 Am. 
 & Eng. Encyc. of Law, p. 423. If one is sued by a foreign executor and goes to 
 trial without objecting, it will be too late after judgment or decree. Dearborn v. 
 Mathes, 128 Mass. 194. Administrator obtaining a, judgment may sue on it in 
 another State. Hall v. Harrison, 21 Mo. 227; 64 Am. Dec. 225. See also Garland 
 V. Garland, 84 Va. 181. May receive claim against United States Government 
 anywhere. Davis v. Chapman, 83 Va. 67. Compelled to settle account of foreign 
 assets received. Cureton v. Mills, 13 S. C. 409; 36 Am. K. 700. Charge for rents 
 and profits of land in another State. Achison' s Heirs v. Lindsay, 6 B. Monroe, 
 86; 43 Am. Dec. 153. Payments to foreign administrator. Wilkins v. Ellett, 
 108 U. S. E. 256. Foreign executor may be sued in the State where he resides 
 and has assets. Oney v. Ferguson, 41 W. Va. 568. 
 
 ^ Fenwick v. Sears, 1 Cranch, 259. 
 
 2 Eobinson's Practice, Vol. 1, p. 178, 192; Tvmstall et al v. Pollard's Adm'r, 11 
 Leigh, 1; Andrews v. Avory, 14 Grat. 239; Powell v. Stratton et al, 11 Grat. 792; 
 Lomax on Ex'ors, Vol. 1, pp. 243, 555; Johnson v. Jackson, 56 Ga. 326; 21 Am. 
 R. 285. The rule applies also to guardians. Binker & Wife v. Streit, 33 Grat. 
 663; Cureton v. Mills, 13 S. C. 409; 36 Am. E. 700; Fugate u Moore, 86 Va. 1045. 
 
 'Lewis V. McFarland, 9 Cranch, 151. A foreign administrator may also dis- 
 charge the obligation of a debtor who pays him voluntarily (11 Lomax on Ex'ors 
 and Adm' rs, p. 556, and note) , and where there are no creditors in the State, or 
 where the debts there have been paid, the resident administrator may either dis- 
 tribute the estate among those entitled to it, or remit the proceeds to the adminis- 
 trator or executor at the late domicil. Redfield on Wills, Vol. 3, p. 27, 28. See 
 also Bryan v. Moore, 13 Am. Dec. 349, and note. 
 
 11 
 
162 PARTIES TO SUITS IN EQUITY. § 39 
 
 according to the laws of that country, and has brought it into this 
 State, he may then maintain a suit for it in his own name, without 
 taking out letters of administration ; ' and where, by virtue of 
 administration abroad, he becomes possessed of a negotiable note 
 belonging to the decedent, which is payable to bearer, he may sue 
 in his own nome, and for that purpose need not take out letters of 
 administration in the State where the debtor resides.^ 
 
 In a bill by legatees or distributees for a general administration' 
 or finaF settlement and distribution of an estate, the personal rep- 
 resentative, and also the legatees or distributees, should be made 
 parties, either by one suing in the name of all,* or else by those 
 who are not plaintiffs being made defendants.' 
 
 In the United States courts this rule, like all others as to parties, 
 has been held to be subject to the qualification that if there can be 
 a decree without injury to the absent persons equally interested in 
 the litigation, the court may proceed without them ; ^ and in any 
 court where the suit affects merely the personal estate, the legatees 
 are regarded as being represented by the executor, and are not 
 necessary parties.' 
 
 When residuary legatees sue for a distribution of the estate, the 
 specific legatees should be parties, unless it satisfactorily appears 
 that the legacies have been paid.' In such a suit all of the 
 executors or administrators' are essential parties,^" and all the 
 sureties on the official bonds should be made parties before there 
 
 ' Lomax on Ex'ors, Vol. 1, p. 555. 
 ' Ibid. 
 
 ' 1 Daniel's Chancery Practice, 201. 
 'Stor/a Equity Pleading, ? 104, 105. 
 
 * Story's Equity Pleading, ? 89, note; Nease v. Capehart, Ex' or, 8 W. Va. 95; 
 Sheldon ei als v. Armistead's Adm'r et ok, 7 Grat. 264; SUlings v. Bumgardner, 9 
 Grat. 273. 
 
 « Payne v. Hook, 7 WaU. 431. 
 
 ' Calvert on Parties, Law Lib. 17, p. 12; Lomax on Ex'ors, Vol. 2, p. 811. 
 
 * Nelson's Ex' or v. Page et cds, 7 Grat. 160; Sharpe v. Kockwood, 78 Va. 24. 
 ' Daniel's Chancery Practice, Vol. 1, p. 252. 
 
 1" Hansford v. EUiott, &c., 9 Leigh, 79. 
 
§ 39 ADMINISTEATION OF ESTATES. 1 63 
 
 is a decree against one of them, or else a suificient reason should 
 be shown for failing to make them parties.' 
 
 If one of the administrators has not taken an active part in the 
 administration of the estate, and has died, his administrator is not 
 a necessary party to a bill filed by a distributee for an account of 
 the administration.^ 
 
 When the bill is filed to subject the real assets in the hands of 
 the heir to the payment of the ancestor's debt, the administrator 
 is a necessary party, for the personal assets should be first applied 
 to the relief of the heir f and where land is charged with legacies, 
 all the legatees should be made parties, even if the legacies are 
 payable out of the personal estate also ; * and if there is a deficiency 
 of assets, the creditors, too, should be made parties.* 
 
 When no one has qualified as administrator for two months 
 (except during a contest about a decedent's will, or during the 
 infancy or absence of the executor) the statute of Virginia^ per- 
 mits the estate to be Committed to the sheriff, and he may be 
 made a party, and the suit proceed against him. 
 
 Where, however, this cannot be done, the suit may proceed with- 
 out the presence of the personal representative, the excuse for not 
 making him a party being made to appear in the bill.'^ 
 
 In a suit by the creditor of a testator against the representatives 
 of a deceased executor, who had delivered to the legatees their 
 specific legacies, and against whom, in his lifetime, a judgment had 
 
 ' Hutoherson, &c. v. Pigg, 8 Grat. 220; Calvert on Parties, 17 Law Lib., p. 136; 
 Barnes v. Trafters, 80 Va. 524. 
 
 ^ Wills' Adm'r v. Dunn's Adm'r, 5 Grat. 384. 
 
 5 Story's Eq. PI. i 172; 2 Lomax on Ex'ors, 801; Boggs v. McCoy, 15 W. Va. 
 344; Fosters. Crenshaw, 3 Munf. 514; Beall' s Adm' r <). Taylor" s Adm' r, &c., 2 
 Grat. 532; Laidly v. Kline's Adm'x, 8 W. Va. 218; Brewis v. Lawson, 76 Va. 36; 
 Woodyard v. Buffington's Adm'r, 23 W. Va. 195. 
 
 * Story' sEq. PI., | 164. 
 
 ^Ibid, I 203; Eexroad d. McQuain, 24 West Va. 32. 
 
 « I 2645. Three months in West Virginia. Code, Ch. 85, § 10. 
 
 'Story's Eq. PI. I 91; Mitford's Eq. PI. 180; Cooper's Eq. PI. 35; Atkinson v. 
 Henshaw, 2 Ves. & B. 85. As to what is not a complete representation of an estate, 
 see Lomax on Ex'ors, Vol. 2, p. 814, 815. 
 
164 PARTIES TO SUITS IN EQUITY. § 40 
 
 been rendered in favor of the creditor, the legatees were held not 
 to be essential parties.' 
 
 Where a married woman was executrix or administratrix, her 
 husband also had to be made a party; but if a decree was obtained 
 against them for a demand out of the assets, and she died before 
 the decree was executed, the suit abated, and the plaintiif had to 
 revive it against her administrator before any further proceedings 
 could be had in the cause against the husband, for the assets of the 
 wife were primarily liable to satisfy the decree ; ^ but now, inas- 
 much as the marriage of the woman does not make the husband 
 a personal representative and the marriage does not extinguish 
 her authority, he need not be made a party .^ 
 
 After-horn Persons. 
 
 § 40. Persons born after the commencement of the suit, and 
 who, upon their births, become possessed of interests in the subject 
 of litigation, should be made parties to the suit by supplemental 
 bill, or else in the way provided by statute in Yirginia ; * but if 
 
 1 Manns v. Fliiin's Adm'r, 10 Leigh, 107; Moore's Adm'r v. George's Adm'r, 10 
 Leigh, 244; Chamberlayne v. Temple, 2 Band. 384. 
 
 ^ Lomax on Ex'ors, Vol. 2, p. 815. 
 
 ■'' Code, ? 2644, as amended by act of February 12, 1892, Acts 1891-2, p. 333. 
 The statute, in terms, only applies to the case of an unmarried woman who is a 
 personal representative marrying, in which case the statute, as reported by the 
 Bevisors (1849 and 1887, Code, | 2644), provided that the marriage should revoke 
 her authority. The statute has been amended in this respect. No express pro- 
 vision is made by the statute for the case of the appointment of a married woman 
 as personal representative, neither did the original act (Code 1849, July 5, 1850; 
 Lomax on Executors, Vol. 1, p. 167), make provision for such a case, but inasmuch 
 as the reason given of the inability of the wife to assume the duties of a personal 
 representative without the consent of the husband was because they were considered 
 as one person and able to do no act which might prejudice the husband without 
 his consent and concurrence (Lomax on Executors, Vol. 1, p. 167), is substantially 
 done away with by the statute (Code, ?? 2287-2288), it is fair to assume that she 
 may qualify and act as a personal representative without her husband's consent and 
 without imposing any liability upon or giving him any rights. The original act 
 remains in force in West Virginia. Code, Ch. 85, ^ 9. 
 
 * § 3292. 
 
§ 41 ' AMENDED AND SUPPLEMENTAL BILLS. 165 
 
 the interest of such after-born persons be merely contingent they 
 should not be made parties.^ 
 
 In respect of the first estate of inheritance, and of all interests 
 depending upon it, it is sufficient to bring before the court the per- 
 son entitled to the first estate ; and if there be no such person, 
 then the tenant for life.^ So, where the son of E took a contingent 
 remainder in fee in the estate devised by B, dependent upon his 
 being alive at the death of E, the son of E not having been in 
 being when the suit was revived against E, and having no certain 
 interest in the estate, was held to be not a necessary party, but to 
 be concluded by the decree against E, the tenant for life.^ 
 
 Amended and Supplemental Bills. 
 
 § 41. The distinction drawn by the authorities between an 
 amended and a supplemental bill is, that the former may not be 
 filed after the parties are at issue and witnesses have been ex- 
 amined, after which time the bill, which before that would have 
 been called an amended bill, is termed a supplemental bill.* Either 
 bill in its appropriate time may be used for the purpose of making 
 new parties who were improperly omitted from the original bill, 
 or where death, or birth, or change of interests since the suit com- 
 menced, have rendered their presence necessary.' 
 
 If the supplemental bill is occasioned by an event subsequent 
 to the original bill, it must state that event, and the alterations of 
 parties consequent thereon ; and it must pray that the defendants 
 may appear and answer .to the charges and allegations it contains ; 
 but except where new parties are brought in, no subpoena need 
 issue on a supplemental bill.* 
 
 1 Calvert on Parties, pp. 49, 189, 192; Story's Eq. PI., ? 145. 
 
 2 Calvert on Paities, p. 52; Story's Eq. PL, ? 145-792; Cooper's Eq. PI. 36-77. 
 ' Baylor's Lessee v. DeJamette, 13 Grat. 152. 
 
 * Story's Eq. PI., ? 332; Sand's Suits in Equity, § 361; Daniel's Chy. Pr., Vol. 
 3, p. 150. 
 
 * Sand's Suits in Equity, ? 361; Story's Eq. Pl.,^? 335; see also Post, § 105. 
 8 Shaw V. Bill, 5 Otto, 14. 
 
166 PAETIES TO SUITS IN EQUITY. § 41 
 
 If it has been rendered necessary by the alteration or acquisition 
 of interest happening to a defendant, or if a person comes into esse 
 who is necessary to be made a defendant, the supplemental bill 
 may be exhibited by the plaintiff in the original suit against such 
 person alone, and may pray a decree upon the particular supple- 
 mental matter alleged against that person only, imless, as is fre- 
 quently the case, the interests of other defendants may be affected 
 by that decree ; m which case such other defendants must also be 
 made parties.^ 
 
 "When the supplemental bill is merely for the purpose of bring- 
 ing persons before the court as defendants, the defendants to the 
 original bill need not in general ^ be made parties to the supple- 
 mental bill.' 
 
 The right to file an amended bill is not confined to the person 
 who was plaintiff in the original bill ; for it is the constant prac- 
 tice of the courts of chancery to allow amendments of bills by 
 the introduction of new plaintiffs, when the purposes of justice 
 require it.* 
 
 In Virginia an amended or a supplemental bill is not always 
 necessary for the purpose .of making new parties, for by statute^ 
 it is provided that, in any case where full justice cannot be done, 
 or the whole controversy ended without the presence of new parties 
 to the suit, the court, by order or decree, may direct the clerk to 
 issue the proper process against such new parties, and upon the 
 maturity of the case as to them proceed to make such orders or 
 decrees as would have been proper if the new persons had been 
 made parties at the commencement of the suit. 
 
 1 Sand's Suits in Equity, § 366; Calvert on Parties, 100 Law Lib. 17, p. 58. 
 
 2 See Post, I 105; Minor's Institutes, Vol. 4, Pt. 2, p. 1132. 
 ' Sand's Suits in Equity, I 366; Calvert on Parties, 100. 
 
 * Maughan u. Blacke, 3 Chy. Appeal Cases, 32; CoflSnan v. Sangston et ah, 21 
 Grat. 269. 
 5 § 3292. 
 
§ 42 APPEALS. 167 
 
 Appeals. 
 
 § 42. The statute of Virginia' declares that any person who is 
 a party t» any case in chancery, wherein there is a decree or order 
 dissolving an injunction or requiring money to be paid, or the 
 possession or title of property to be changed, or adjudicating the 
 principles of a case, or to any civil case where there is a final 
 judgment, decree or order, may present a petition, if the case be 
 in chancery, for an appeal from the decree or order ; and if not 
 in chancery, for a writ of error or supersedeas to the judgment or 
 order, except in certain cases which need not be mentioned here. 
 
 The person referred to in this statute has been decided to be 
 such person as was a party to the suit in the court below, and who 
 was aggrieved ^ by the decree therein rendered, and to make him a 
 proper party to an appeal these two circumstances must concur.^ 
 
 The court of appeals may, however, pass upon, and finally 
 determine, the rights of persons who are not technically parties to 
 the proceedings in the courts below ; for it has been held that 
 when the parties stand upon distinct and unconnected grounds, 
 where the rights are separate and not equally aifected by the same 
 decree or judgment, then the appeal of one will not bring up for 
 adjudication the rights or claims of the others ; but where the 
 parties appealing, and those not appealing, stand upon the same 
 ground, and their rights are involved in the same question, and 
 equally affected by the same decree or judgment, the court of ap- 
 appeals will consider the whole case, and settle the rights of the 
 
 ' I 3454; Code W. Va., Ch. 135, ? 1. 
 
 ^ In general a party who is injured or aggrieved by one part of a decree only, 
 cannot by appeal call in question another part of the decree in which he is not 
 interested. 2 Daniel's Chy. Pr., 1461; Cuyler v. Moreland, 6 Paige, 273; Idley 
 V. Bowen, 11 Wend. 227; Howe v. Van Shaick, 7 Paige, 221; Farmers Loan and 
 Trust Co. v. Waterman, 106 U. S. E. 265; Little v. Bowen, 76 Va. 724; Edmond- 
 son's Adm'r v. Scott, 78 Va. 720; Trimble's Adm'r v. Herold, 20 W. Va. 602. 
 
 3 Sayre v. Grimes, 1 H. & M. 404; Wingfield v. Crenshaw, 3 H. & M. 245; 
 Holcomb V. Purcell, court of appeals of Virginia, May, 1802, referred to in 1 H. 
 & M. 405, and in Superyisorg of Culpeper v. Gorrell et als, 20 Grat. 519. 
 
168 PARTIES TO SUITS IN EQUITY. § 42 
 
 parties not appealing as well as those who bring their case up by 
 appeal.' 
 
 The party appealing must, of course, be interested in the sub- 
 ject of the controversy ; ^ but where one appeared as attorney in 
 fact for certain creditors of an estate, and opposed a grant of 
 administration, he was allowed to appeal, although not interested 
 in other respects.' 
 
 One proceeded against as an absent defendant, and who has not 
 appeared,* or a resident against whom a decree has been rendered 
 by default,^ cannot appeal, for the statute^ provides a remedy for 
 them in the lower court ; yet where one of two parties equally 
 interested in the subject of controversy appeared and answered the 
 bill, showing a defence which was in no respect personal, but es- 
 tablishing the satisfaction and discharge of the joint obligation 
 sued on, and his appeal brought under review the propriety of the 
 whole decree, that was held to have devolved upon the court of 
 appeals the duty of correcting and reversing it, in favor as well of 
 the party appealing as of the non-resident who was not properly a 
 party to the suit there.' A final judgment, however, of the court 
 of appeals will not, any more than the judgment of any other 
 court, affect persons interested in the controversy who were not 
 parties to the suit, or represented there.* 
 
 1 Ludlow V. Greenhouse, 1 Bligh. N. S. 17; Steele v. White, 2 Paige, 478; Tate 
 V. Liggat & Matthews, 2 Leigh, 84, 107; Lewis v. Thornton, 6 Munf. 87; Leuows 
 V. Lenow, 8 Grat. 349; Purcell v. McLeary, 10 Grat. 246; Walker's Ex' or et als 
 V. Page et als, 21 Grat. 652; Lyman v. Thompson, 11 W. Va. 42f ; Saunders v. 
 Griggs, 81 Va. 506. Joinder of parties in interest in appeals generally, see Black 
 V. Kirgan, 3 Green's Law, 45; 28 Am. Dec. 394. 
 
 ^ Sayre v. Grymes, 1 H. & M. 404. One whose interest has ceased since the 
 commencement of the suit cannot appeal. 2 Danl. Chy. Pr., 1461, and note; Town- 
 send V. Davis, 1 Ga. 495; 44 Am. Dec. 675; note, 677. 
 
 * Bohn V. Sheppard, 4 Munf. 403. 
 
 * Piatt V. Howland, 10 Leigh, 507. 
 
 ^ Barbee& Co. v. PanniU, 6 Grat. 442; Gunn et als v. Turner's Adm'r, 21 Grat. 382. 
 8 § 3233, § 3451 as amended by act of February 20, 1894, Acts 1893-4, p. 376; 
 Code W. Va., Ch. 124, i 14; Ch. 135, § 5. 
 ' Lenow v. Lenows, 8 Grat. 352. 
 
 * Omohundro' s Ex' or v. Omohundro et als, 27 Grat. 824. 
 
§ 42 APPEALS. 169 
 
 Any one of several against whom a decree is rendered may 
 appeal from it,' and one whose interest is separate from the other 
 defendants may appeal without them.^ It is said in the text of 
 Daniel's Chancery Practice, Vol. 2, p. 1460, that it is not necessary 
 that the person who appeals should be actually a party to the record, 
 provided he has an interest in the question which may be affected 
 by the decree appealed from ; and it has also been held,^ that it is 
 not necessary for a party to have appeared in the court below to 
 entitle him to appeal ; but this question, we have already seen, is 
 regulated by statute in Virginia.* 
 
 A person interested in proving a will may make himself a party 
 to an appeal from the decision of the court below, although he was 
 not a party to the proceeding in that court ; ^ and in Virginia it is 
 provided by statute,' that any person who thinks himself aggrieved 
 by an order in a controversy concerning the probate of a will, or 
 the appointment or qualiiication of a personal representative, 
 guardian, curator, or committee, or concerning a mill, roadway, 
 ferry, wharf or landing, may present a petition for an appeal or 
 writ of error, as the case may be. 
 
 It has also been said,^ that where property had not been applied 
 as it ought, creditors might appeal ; but this view resting upon the 
 ground that if any person entitled to the estate in any way is 
 bound by the decree, he must have the right to appeal from it, as 
 well as the person against whom it was made, it seems to follow 
 that if not in some way a party to the proceeding, he would not 
 be bound by the decree, and hence does not come within the reason 
 
 'Johnson v. Johnson, 1 Dana, 366; Peer v. Cookerow, 1 McCarter (N. J.), 
 361-364; Emerick v. Armstrong, 1 Ham. 513. 
 
 ^ Porgay v. Conrod, 6 Howard, 201. See "Vance Stove Co. e( al v. Haught el al, 
 41 W. Va. 261; 23 S. E. E. 553. 
 
 ' Hyslop V. Powers, 9 Paige, 48. 
 
 * I 3452; Code W. Va., Ch. 134, § 6. 
 
 5 Poster V. Tyler, 7 Paige, 48. 
 
 « I 3453; Code W. Va., Ch. 135, J 2. 
 
 'Daniel's Chancery Practice, Vol. 2, p. 1461. 
 
170 PARTIES TO SUITS IN EQUITY. § 43 
 
 of the rule ; and if he was a party he could of course appeal from 
 any decree deciding against his interest. 
 
 A creditor coming in under a decree, and having his claim dis- 
 allowed, may of course appeal ; ^ and a purchaser under a decree, 
 although not in form a party to the suit, may appeal from an order 
 setting aside a bidding, and ordering a new sale.^ 
 
 Such a purchaser, however, seems to be almost universally re- 
 garded as a party to the suit,' and being such, is liable to be bound, 
 both by the terms of the decree under which he purchased,* and 
 by the subsequent decree of confirmation,^ and decrees thereafter 
 rendered for resale, or other orders touching the disposition of the 
 property or the purchaser's liability for the purchase money.^ 
 
 Assignments. 
 
 § 43. Where there have been assignments of interests which 
 have come into litigation, it is often a question whether or not the 
 assignor should be made a party to the proceeding. Upon this 
 subject the rule has been broadly laid down, that in any case of a 
 bill in equity asking relief for the plaintiff as assignee of the 
 rights of another, the assignor must be made a party to the cause, 
 and the assignment ought to be shown and proved where proof is 
 called for in the answer,' and even if the fact of assignment be 
 not denied nor proof of it called for.* But this, it will be seen, 
 is too broad a statement. 
 
 ' Earl of Winchelgea v. Garrelty, 1 M. & K. 253, 257. 
 
 ' Daniel' s Chancery Practice, Vol. 2, p. 1461. 
 
 ' Casamajor v. Strode, 1 Cond. Eng. Chy. K 195; Wood v. Mann, 3 Summers' 
 B. 318; Kequa v. Eea, 2 Paige, 341; Clarkson v. Read et als, 15 Grat. 292; Van- 
 bibber V. Sawyers, 10 Humphreys, 81; 51 Am. Dec. 694; note, 695; News Ex. v. 
 Bass, 92 Va. 383. 
 
 * Thornton v. Fairfax et als, 29 Grat. 677. 
 
 5 Lloyd V. Erwin's Adm'r, 29 Grat. 603. 
 
 ^ But for the proper mode of proceeding against a purchaser in such cases, see 
 Post, i 66, and Clarkson v. Bead et als, 15 Grat. 292; Thornton v. Fairfax et als, 
 29 Grat. 669; McClintic v. Wise's Adm'r et ah, 25 Grat. 448. 
 
 'Tennent's Heirs ti. Pattons, 6 Leigh, 196. See also Campbells. Shipman, 87 
 Va. 655. 
 
 ^ Corbin v. Emmerson, 10 Leigh, 668. 
 
§43 ASSIGNMENTS. 171 
 
 The subject is divided by an able writer^ into four parts : first, 
 the assignee being plaintiff, whether the assignor must be made a 
 party ; secondly, the assignor being plaintiff, whether the assignee 
 must be a party ; thirdly, the assignor being defendant, whether 
 the assignee must be made a party ; and fourthly, the assignee 
 being a defendant, whether the assignor must be made a party. 
 The most important of these divisions is obviously the first — the 
 assignee being plaintiff, whether the assignor must be made a party. 
 
 It has been declared that, where the subject-matter in litigation 
 is a legal chose in action which has been assigned, the assignor 
 being dead, his personal representative should be a party ; ^ but 
 that the assignee of an equitable interest in a chose in action may 
 maintain a suit for the assertion of that interest without bringing 
 the assignor before the court.* 
 
 The settled rule, however, is that where the assignment is abso- 
 lute and unconditional, leaving no equitable interest whatever in 
 the assignor, and the extent and validity of the assignment is not 
 doubted or denied, and there is no remaining liability in the 
 assignor to be affected by the decree, it is not necessary to make 
 the latter a party.* But where the assignment is not absolute and 
 unconditional, or the extent or validity of the assignment is dis- 
 puted or denied, or where there are remaining rights or KabiKties 
 of the assignor which may be affected by the decree, then he is 
 not only a proper but a necessary party.° 
 
 1 Calvert on Parties, 17 Law Library, 138. 
 ' Daniel' s Chancery Practice, Vol. 1, p. 197. 
 
 * Daniel' 3 Chancery Practice, Vol. 1, p. 206. 
 
 * Omohundro v. Henson et als, 26 Grat. 511 ; Vance v, Evans et al, 11 W. Va. 
 342; Scott el al v. Lndington et al, 14 W. Va. 387; Lynchburg Iron Co. v. Taylor, 
 79 Va. 671; DaUy's Ex' or v. Warren, &c., 80 Va. 512; Tatum v. BaUard, 94 Va. 
 375; 27 S. E. E. 871. 
 
 * Story's Eq. PI., ? 153; Calvert on Parties, 17 Law Library, 139. The decided 
 cases in support of the text are collected in the note to page 198 of Vol. 1, Daniel' s 
 Chancery Practice, and for convenient reference are also set forth here as follows: 
 Miller v. Henderson, 2 Stockt. Chy. (N. J. ) 320; Ward v. Van Bokkdin, 2 Paige, 
 289; Bruen v. Crane, 1 Green. Chy. 347; Polk v. GaUant, 2 Dev. & Bat. Chy. 395; 
 Everett v. Winn, 1 Sm. & M. Chy. 67; SneUmg v. Boyd, 2 Monroe, 132; Kennedy 
 
172 PAETIES TO SUITS IN EQUITY. § 43 
 
 This doctrine has received the fullest approval in Virginia,^ and 
 of the supreme court of the United States.^ 
 
 It often happens that no question about the assignment is raised 
 until the answer is filed, or other pleadings or proceedings in the 
 cause make up an issue upon the fact of assignment. Whenever 
 this occurs, it is clear that the assignor should be a party to the 
 suit, and it should not be permitted to proceed further until he is 
 brought in.* The case of Owens v. Riely's Executors,* was a con- 
 tention between two creditors who had presented their claims for 
 audit before a master commissioner, who was acting under a decree 
 rendered in a general creditor's suit, and in which neither of them 
 was named as a party. The fund was not sufficient to pay all the 
 debts, and the creditor whose debt was not disputed excepted to 
 the commissioner's report auditing the other debt, because that 
 creditor claimed as assignee of another, and yet produced no evi- 
 dence of the assignment except the mere possession of an unen- 
 dorsed bond, which was not payable to bearer. The counsel for 
 both parties agreed in argument that, owing to the difficulty of 
 making the personal representatives of the alleged assignor parties 
 to the suit, the case could properly be tried without their presence. 
 This, however, the court of appeals refused to do, but reversed the 
 cause, and sent it back to the circuit court^ with directions that 
 the representatives of the alleged assignor should be made parties 
 to the suit, or else be summoned before the master commissioner.' 
 
 V. Davis, 7 Monroe, 372; Morey v. Forsytli, Walk. Chy. 465; Beach o. "White, 
 Ibid, 495; Dixon v. Buell, 21 111. 203; Colerick v. Hooper, 3 Ind. 316; Vamey v. 
 Bartlett, 5 Wis. 270; Moor v. Veazie, 32 Maine, 343, 355; Whitney v. McKinney, 
 7 John. Chy. 144; Brown v. Johnson, 53 Maine, 246, 247; Pingree v. Ck)ffin, 12 
 Gray, 302; Hobart v. Andrews, 21 Pick. 526, 531^32; Tichenor v. Allen et ah, 
 13 Grat. 15; Haskel v. Hilton, 30 Maine, 419. 
 
 1 James B. & K. Co. v. Littlejohn, 18 Grat. 83; Newman v. Chapman, 2 Band. 
 93; Drake v. Lyons, 9 Grat. 54. 
 
 ' BatesvOle Institute v. Kaufinan, 18 WaU. 151. See also Allen v. Brown, 44 
 New York, 228; Kanklessen v. Braynard, 3 Daly, 183; List v. Pumphrey et cd, 3 
 W. Va. 672. ' Tichenor v. Allen, 13 Grat. 15. 
 
 * Decided at Staunton, Va., at the September term, 1878, but not reported. 
 
 ^The case of The Auditor v. Johnston's Ex" or, 1 H. & M. 541, fully sustains 
 the court in its ruling here. 
 
§ 44 BANKRUPTS AND THEIK ASSIGNEES. 173 
 
 The other three divisions cited at the commencement of this 
 section, from Calvert on Parties, are mainly governed by the same 
 principles which I have just discussed, and generally all doubts 
 about making assignees or assignors parties to suits may be solved 
 by determining whether or not they still have any interest in the 
 subject of the controversy. An assignee in a trust for creditors 
 has been held to be so far entitled to represent the interests of all 
 the creditors provided for in the assignment as to be permitted to 
 file a bill in his own name relative to the trust estate without 
 making those creditors parties.^ 
 
 Bankrupts and their Assignees. 
 
 § 44. In a bill against the assignee of a bankrupt touching his 
 estate, the bankrupt ought not generally to be made a party to the 
 suit, yet if in the bill any discovery of his acts before he became 
 bankrupt is sought, he may properly be joined, and compelled to 
 make the discovery.^ The assignee himself should be a party to 
 any suit to which the bankrupt would have been a proper party 
 had the bankruptcy not taken place ; ' and the incapacity of the 
 bankrupt, as a general rule, to sue or be sued, rests upon the prin- 
 ciple that he is regarded as simply the agent for the assignee.* 
 Where, pending a suit, a sole plaintiff becomes bankrupt, his 
 assignee may come in and carry on the suit, and so he may do 
 when one of two plaintiffs becomes bankrupt in company with the 
 solvent party.^ 
 
 If a defendant becomes bankrupt, the proceeding should be so 
 amended as to make the assignee a party, or else the suit should 
 
 ^ Grover v. Wakeman, 11 Wend. 187. As to parties to suits for the settlement 
 of trusts, see Post, § 74. 
 
 2 Story's Eq. PL, §233. 
 
 ' Calvert on Parties, Law Library 17, p. 116. But see Barr, Assignee, v. White 
 el als, 30 Grat. 531, and Post, I 118. 
 
 * Calvert on Parties, L. L. 17, p. 118; 1 Daniel's Chy. Pr. 224; 1 Bob. Pr. 309. 
 
 5 Calvert on Parties, L. L. 17, p. 120. • 
 
174 PARTIES TO SUITS IN EQUITY. § 45 
 
 be dismissed ; ^ and where there is more than one assignee, all of 
 them should be made parties.^ 
 
 In all cases where claims are sought to be established against 
 the estate of a bankrupt, it is necessary to bring only the assignee 
 before the court, and the bankrupt or his creditors are not neces- 
 sary parties. Thus, it has been held that a bankrupt is not a 
 necessary party to a bill of foreclosure against his assignee ; but 
 where fraud and collusion are charged between the bankrupt and 
 his assignee, the bankrupt may be made a party, and he cannot 
 demur although relief be prayed against him.^ 
 
 It has also been held in Virginia, where pending a suit by 
 judgment creditors against the debtor and others to set aside a 
 deed of trust, or to subject the surplus to the payment of debts, 
 the debtor was declared a bankrupt on his own petition, and 
 claimed his homestead and other exemption out of the surplus of 
 the purchase-money of the land, that the assignee of the bankrupt 
 should be made a party to the suit, and that the bankrupt still, had 
 such interest in his estate, on account of his claim to exemptions, 
 as entitled him to appear as appellant in the case.* 
 
 Change of Parties by Death, Marriage, &o. 
 
 § 45. Death, marriage, &c., of parties to a suit do not always 
 interfere with its progress or require new process to issue, for there 
 are many cases where the interest of a party dying survives to 
 others already before the court, or else ceases altogether with the 
 termination of his life.. Of such are the cases where many 
 joint tenants sue and one dies ; where husband and wife sue in 
 
 1 Dabney v. Preston's Adm'r, 25 Grat. 838. 
 
 ' Calvert on Parties, L. L. 17, p. 120; Bump's Law and Practice of Bankruptcy 
 (6th ed.), 390. 
 
 ^ Daniel's Chancery Practice, Vol. 1, p. 255. 
 
 * Barger v. Buckland et als, 28 Grat. 862. When the suit was to subject land 
 which had been assigned to the bankrupt as exempt from the lien of a judgment 
 obtained before the bankruptcy, the assignee was regarded as not a necessary party. 
 McKallister v. Bodkin et als, Vf. Law Journal, 1882, p. 689. 
 
§ 45 CHANGE OF PARTIES BY DEATH, MAEEIAGE, ETC. 175 
 
 right of the wife, and the husband dies ; where creditors sue on 
 behalf of themselves and others, and one of the suing creditors 
 dies ; ^ or where a feme sole marries pending the suit, and before 
 revivor the husband dies. 
 
 The general rule in such cases is thus well laid down : " If the 
 whole interest of a party dying survives to another party, so that 
 no claim can be made by or against the representative of the party 
 dying ; as if a bill is filed by or against trustees and executors, 
 and one dies not having possessed any of the property in question, 
 or done any act relating to it which may be questioned in the suit ; 
 or by or against husband and wife, in right of the wife, and the 
 husband dies imder circumstances which admit of no demand by 
 or against his representatives, the proceedings do not abate.^ So 
 if a surviving party can sustain the suit, as in the case of several 
 creditors plaintiffs on behalf of themselves and other creditors." ^ 
 
 And so it has been held of a bill in chancery against two 
 partners, one of whom dies pending the suit, that it is not neces- 
 sary to revive the suit against his personal representatives, for the 
 surviving partner is the legal representative of the firm.^ 
 
 Where there were two plaintiffs in a supersedeas and one of 
 them died, it was held that the cause should abate as to him, and 
 proceed in the name of the surviving plaintiff.^ But this whole 
 subject is now regulated by statute in Virginia.' 
 
 ' Auatin v. Cochran, 3 Bland. 337. Death of complainant after cause suhmitted 
 and taken airia advisari milt held not to prevent a decree being entered. Mitchell 
 V. Overman, 103 U. S. E. 62. 
 
 2 Vaughan and Wife v. Wilson, 4 H. & M. 452; Archer d. CoUy and Wife, 4 H. 
 & M. 410. 
 
 ' Calvert on Parties, 105. 
 
 'Townes v. Birchett, 12 Leigh, 174; Cunningham, Ex' or, &c. v. Smithson, 12 
 Leigh, 32; Brown, &c. v. Story, 2 Paige, 594. 
 
 * Hairston v. Woods, 9 Leigh, 308. 
 
 8 Code W. Va., Ch. 127; U 1, 2, 3. Code, H 3305, 3306, 3307, as foUows: 
 " § 3305. Where a party dies, or becomes convict of felony, or insane, or a female 
 party marries, or the powers of a party who is a personal representative or com- 
 mittee cease, if such fact occur after verdict, judgment may be entered as if it had 
 not occurred. 
 
 " J 3306. When such fact occurs in any stage of a cause, whether it be in a court 
 
176 PARTIES TO SUITS IN EQUITY. § 45 
 
 A party may, by reason of something which happens siace the 
 institution of the suit, either lose some part or the whole of his 
 interest therein, or else acquire a new interest in connection with 
 other persons, which may cause the suit to abate as to him, or may 
 render the presence of those persons essential to the suit, and in 
 all such cases the new persons must be served with process and 
 brought before the court. 
 
 It is also provided by statute,* that when the number of parties 
 exceeds thirty, and any one of said parties jointly interested with 
 others in any question arising therein shall die or marry, the court 
 may, nevertheless, if in its opinion all classes of interests in the 
 case are represented, and the interests of no one will be prejudiced 
 by the trial of the cause, proceed to render a decree in the suit, as 
 if such person were alive or had not 'married. 
 
 When a party whose powers cease pending the suit is a defen- 
 dant, the plaintiff may continue his suit against him to final decree ; 
 but he cannot proceed against both him and his successor, unless 
 an order that he proceed against the 'former party be entered at 
 the first term after service of a scire facias for or against such 
 successor.^ 
 
 When a feme defendant marries, it has been held to be unneces- 
 sary to revive the suit against her husband,' though he ought to be 
 
 of original or appellate jurisdiction, if it occur as to any of several plaintifls or 
 defendants, the suit may proceed for or against the others if the cause of suit sur- 
 vive to or against them; and no suit shall abate as to a party sued jointly with 
 another who shall die during the pendency of such suit, but in all cases where such 
 suit would have abated before the passage of this act, the same shall be revived 
 against the personal representative of the decedent, and proceed thenceforward as 
 a separate action against such personal representative as though such decedent had 
 been a sole defendant. 
 
 " I 3307. If during the pendency of an appeal, writ of error, or supersedeas, the 
 death of a party, or any other fact, which, if it had occurred after verdict in an 
 action, would not have prevented judgment being entered, be suggested or relied 
 on in abatement in the appellate court, the said court may, in its discretion, enter 
 judgment or decree in the case, as if such death or other fact had not occurred." 
 
 1 § 3313; Code W. Va., Ch. 127, § 9. 
 
 ' I 3306; Code W. Va., Ch. 127, I 2. 
 
 'Durbaine v. Knight, 1 Vem. 318; Wharan v. Broughton, 1. Ves. Sen. 182. 
 
§ 45 CHANGE OP PAETIES BY DEATH, MAEEIAGE, ETC. 177 
 
 named in the subsequent proceedings ; but where a feme plaintiff 
 marries, all the proceedings become abated. For this distinction 
 it has been said : " The reason of this is, that a plaintiff seeking 
 to obtain a right, the defendant may be injured by answering to 
 one not entitled to sue ; but a defendant only justifying possession, 
 the plaintiff cannot be injured by a decree against one holding 
 possession ; but in the first case a neglect of a bill of revivor is 
 not error to reverse a case." 
 
 This has been regarded ' as a very imperfect explanation, and it 
 seems too plain for doubt that the proper rule by which to deter- 
 mine the propriety or necessity of making a husband a party in 
 such a case is according to whether the right of the feme to sue or 
 be sued alone is affected by her marriage, or whether by that mar- 
 riage the husband acquires any interest in the cause. 
 
 When the suit abates by death, unless the case comes within the 
 provisions made for such cases by the statute, and the person whose 
 death has caused the abatement has an interest which is transmitted 
 to his representative, there must be a revival, unless the death has 
 occurred in such stage of the cause that a revival is unnecessary. 
 The representative should not come before the court as plaintiff, or 
 be brought before it as a defendant by filing an original bill ; but 
 there should be a revival of that suit which was pending at de- 
 cedent's death.^ 
 
 The mode of adjusting a suit to a change of parties is also pro- 
 vided by statute ; ^ and the scire faoias to revive the suit may issue 
 at any time ; and an order may be entered at rules for a case to 
 proceed in the name of the proper party, although it be on the 
 court docket.* 
 
 ^ Calvert on Parties, 106. To recover a wife's separate property as the law stood 
 in Virginia under the act of 1876-7, p. 333-4, husband and wife had to be joined 
 as complainants. Burson u, Andes and Wife, 83 Va. 445. For the rules under 
 the present Virginia law, see Post, § 55. 
 
 ^McoU, &e. V. Koosevelt, &c., 3 iTohns. Chy. E. 60; Woolsey, &c. u. Livings- 
 ton, &c. , 5 Johns. Chy. B. 265. An administrator de bonis non may revive a suit 
 in equity. Fletcher's Heirs v. Saunders, 7 Dana, 345; 32 Am. Dec. 96. 
 
 = i 3308; Code W. Va., Ch. 127, H- * § 3309; Code W. Va., Ch. 127, g 5. 
 12 
 
178 PARTIES TO SUITS IN EQUITY. § 46 
 
 Charities. 
 
 § 46. The enforcement of the due appropriation of charitable 
 gifts has been, in England, by proceeding in the name of the 
 attorney general by information and bill ; ' or else the attorney 
 general is made a party defendant to the suit.^ The former course 
 was pursued in Virginia in the case of Gallego's Ex'ors v. Attorney 
 General, 3 Leigh, 461, but the bill was dismissed. 
 
 In Virgiaia, gifts for charitable uses of an indefinite character 
 are void ; and those of a definite nature are trusts which courts of 
 equity enforce by virtue of their ordinary jurisdiction,' at the 
 
 1 Mitford's Chancery Pleading, p. 7. ^ Story's Equity Pleading, § 69. 
 
 ' GaUego'a Ex' ors v. Attorney General, 3 Leigh, 461. In P. E. P. Society v. 
 Churchman, 80 Va. 718, this case is treated as reversed and overruled, and the 
 doctrine established that a charitable trust, though necessarily indefinite as to the 
 recipients until they are duly selected, is not for that reason invalid; and if in 
 other respects certain, is valid and will be upheld upon precisely the same princi- 
 ples applicable to the most ordinary trusts; and the courts said that in Virginia it 
 never had been decided that bequests for religious uses were void for that reason 
 alone. The same was held also in the case of Trustees v. Guthrie, 86 Va. 125. 
 But in the case of Fifield v. Van Wyck's Ex' or, 94 Va. 557; 27 S. E. E. 446, the 
 court of appeals of Virginia overrule those cases so far as they may be said to have 
 established a difierent doctrine from that established in Gallego's Ex'ors v. Attor- 
 ney General, and reiterates the binding force of the last named case. In West 
 Virginia, upon the application of the rules as to what constitutes the uncertainty 
 of a gift, direct issue is taken in Wilson v. Perry, 29 W. Va. 169, 195, with what 
 is said in the Churchman case, and the doctrine of Gallego's Ex'ors v. Attorney 
 General strictly followed. 
 
 As to what are definite or indefinite gifts or bequests, see White v. Attorney 
 General, 4 Iredell's Eq. 19; 44 Am. Dec. 92; Bridges v. Pleasants, 4 Iredell's Eq. 
 26; 44 Am. Dec. 94; note, p. 98 et seq; Kain v. Gibbony, 101 U. S. E. 362; 
 Pritchard v. Thompson, 95 N. Y. 76; 47 Am. E. 9; Brown v. CaldweU, 23 W. 
 Va. 187; Ohara v. Dudley, 95 N. Y. 403; 47 Am. E. 53; Gallaher v. Eowan, 86 
 Va. 823; Eoss v. Kiger, W. Va.; 26 S. E. E. 193; Gilmer v. Stone, 120 U. S. B. 
 586. See also the cases collected in the notes to page 127, Vol. 3, Am. & Eng. 
 Encyc. of Law. 
 
 The cases in Virginia upon the subject of charitable uses, to be considered in 
 connection with this subject, besides those already cited in this note, are Gallego 
 ti. Attorney General, 3 Leigh, 450; Brook v. Shacklett, 13 Grat. 301; Jane/s 
 Ex' or v.. Latane, 4 Leigh, 327; Seabum v. Seaburn, 15 Grat. 423; Kelley v. Love, 
 20 Grat. 124, Stonestreet v. Doyle, 75 Va. 376; Literary Fund v. Dawson, 10 
 Leigh, 147; Kinniard v. Miller, 25 Grat. 107, and Virginia v. Levy, 23 Grat. 21. 
 
 The present statute of Virginia making valid gifts, bequests, etc., for educational 
 and literary purposes is contained in H 1420, 1421, Code 1887. 
 
§ 47 CITIES, TOWNS, ETC. 179 
 
 instance of the parties interested, and against those perverting the 
 trust. When the gift is of land for certain religious purposes the 
 statute* validates such donations made by conveyance, devise or 
 dedication since January 1, 1877, and conveyances after March 4, 
 1898 ; and such property is held by trustees,^ who may in their 
 own names sue for and recover the same, and be sued in relation 
 thereto ; and such suit, notwithstanding the death of any of the 
 trustees, or the appointment of others, shall proceed in the names 
 of the trustees by or against whom it is instituted.^ 
 
 A corporation claiming an interest in a charity may, of course, 
 proceed in its own name against the persons whose action is sought 
 to be controlled in the suit ; and to such a proceeding, all who 
 may be interested in its result should be made parties.* 
 
 Cities, Towns, &c. 
 
 § 47. In some cases the persons who hold a common relation 
 to the subject are so numerous that to attempt to unite them all in 
 one suit would be, even if practicable, very inconvenient, and 
 would subject the proceeding to the danger of perpetual abate- 
 ment, and other impediments arising from intermediate deaths. 
 
 In the case of Virginia v. Levy, 23 Grat. 40, the bequest being of a vague and 
 indefinite character was considered void, although it was for educational purposes, 
 because it was not by its terms for the education of persons "within the State" as 
 the statute provides. 
 
 ' § 1398, as amended by act of March 4, 1898, Acts 1897-8, p. 977; Code W. 
 Va., Oh. 57, I 1. But this does not prevent bequests for religious uses, where 
 suflSciently defined, and to corporations or others authorized by law to accept such 
 bequests. See Ante, p. 178, note 3. See also Seabum' s Ex' or v. Seabum et al, 15 
 Grat. 423; The Literary Fund v. Dawson et ats, 10 Leigh, 147; Brooke et als v. 
 Shacklett, 13 Grat. 301; Potter, Griffith et al v. State of Delaware, 2 Del. Chy. 
 E. 421; Id., 392. 
 
 2 U 1399, 1400, 1401. § 1399 and ? 1401 as amended by act of March 4, 1898, 
 Acts 1897-98, p. 977. Code W. Va., Ch. 57, ?H, 5, 6. 
 
 » § 1402; Code W. Va., Ch. 57, ? 7. 
 
 * Daniel's Chancery Practice, Vol. 1, p. 261. As to the right of unincorporated 
 religious and other voluntary societies to sue, see Phipps v. Jones, 20 Penn. State, 
 260; 59 Am. Dec. 708; notes, p. 711 to 718; Pierce v. Eobie, 39 Maine, 205; 63 
 Am. Dec. 614; Beach on Private Corporations, | 900 et aeq; Curd et al v. Wallace 
 et al, 17 Dana, 190; 32 Am. Dec. 85. As to the right of societies and clubs to sue 
 and be sued, see 22 Am. & Eng. Encyc. of Law, p. 806. 
 
180 PARTIES TO SUITS IN EQUITY. § 47 
 
 marriages, incompetency, or change of interests.' Among the 
 various bodies that come under tliis definition, and of which, as a 
 class, I shall speak more particularly further on in this chapter, 
 are cities, towns and other like associations. 
 
 In such ca^es the court will allow a bill to be brought by some 
 of the parties in behalf of themselves and all the others, taking 
 care that there shall be a due representation of all substantial 
 interests before the court; for if the suit be brought for the 
 plaintiffs alone, it will not be sustained, because of the lack of 
 proper parties.^ 
 
 So it has been held that resident tax payers and voters, in 
 behalf of themselves and the other inhabitants of any municipal 
 corporation, may file a bill in equity against the corporation or its 
 officers, to prevent them from imposing illegal burdens upon the 
 people, or from assuming or exercising a power over the property 
 of the citizen, or over the corporate property or funds, which the 
 law does not enjoin upon them, or from making an illegal appro- 
 priation of the public funds.' 
 
 The rule under discussion is not confined to the right to sue as 
 plaintiffs, but the decided cases also agree that one may file his 
 bill against some persons on behalf of themselves, and all others 
 opposed to his claim, provided they are so numerous that it is 
 impossible to make all parties, and provided a sufficient number 
 are made parties to ensure a trial of the legal rights of all.^ 
 
 In the case of Bull et als v. Read et ok, 13 Grat. 86, the bill 
 
 1 Story's Eq. PL, § 107; Buffalo et ais v. Town of Pocahontas et ah, 85 Va. 225. 
 
 ' Story's Eq. PI., § 107 to ? 112; Calvert on Parties, L. L. 17, p. 243. 
 
 ' Dillon on Municipal Corporations, § 731 to ? 737. In Manly Mfg. Co. v. 
 Broadus, 94 Va. 547, it was held that in the absence of any charge of fraud or 
 collusion on the part of the hoard of supervisors, a taxpayer cannot come into a 
 court of equity merely to settle an account between a claimant and the board, 
 growing out of a contract which the board had full power to make; and that the 
 board has a full, adequate and complete remedy for the enforcement of its contracts 
 and the rights of all persons having contracts with, or claims against the county, 
 are amply protected by the provisions of |§ 836, 837 and 838 of the Code. Code, 
 ^ 802, also provides how counties may sue and be sued. 
 
 * Calvert on Parties, Law Library 17, p. 27. 
 
§ 47 CITIES, TOWNS, ETC. 181 
 
 was filed by Thomas W. Bull and sixteen others, white male inhab- 
 itants of the first magisterial district, in the county of Accomac, 
 in behalf of themselves and the other inhabitants of that district, 
 except the defendants, against the board of school commissioners 
 of that district, to restrain what was claimed to be the illegal 
 action of the board under an unconstitutional act of the legisla- 
 ture. Judge Lee, delivering the opinion of the court,^ declared, 
 that as the act of the legislature called in question by the bill was 
 one necessarily affecting all the inhabitants of the district named, 
 who in respect of persons or property were liable to taxation 
 under its provisions 5 and as they were many in number, but had 
 a common interest, it was allowable, according to settled practice, 
 for some to file a bill on behalf of themselves and -the other 
 inhabitants similarly situated, seeking any relief to which they 
 might all in common be justly entitled, although their individual 
 interests might be several and distinct. And when a large number 
 of persons are thus interested in a common subject, and acts are 
 done to the injury of the common right, the approval of the 
 majority will neither excuse the wrong, nor take away from the 
 other parties their remedy by suit. And although every one who 
 
 ' The judge who delivered the opinion in this case has collected apparently all 
 the authorities then existing on the subject, which are as follows: Cockburn v. 
 Thompson, 16 Ves. E. 321; Chancey «. May, Pr. in Chy. 592; Attorney General 
 V. Heelis, 2 Sim. & Stu. 67; 1 Cond. Eng. Chy. R 348; Gray v. Chaplin, 2 Sim. 
 & Stu. 267; Id. 451;, Blackham v. The Warden and Society of Sutton Coldfield, 1 
 Chy. Cas. 269; Mitford's PI. 137; MUligan v. MitcheU, 3 Mylne & Craig, 72; 14 
 Eng. Chy. E. 72; Bromley v. Smith, 1 Sm. E. 8; 2 Cond. Eng. Chy. 5; Story's 
 Eq. PL, U 107, 112, 114, 120; Taylor v. Salmon, 4 Mylne & Craig, 134; 18 Eng. 
 Chy. E. 133; Wallworth v. Holt, Id. 619; 1 Danl. Chy. Pr. 287 & seq; Hughes 
 V. Trustees of Modem College, 1 Ves. E. 188; Shand v. Aberdeen Canal Company, 
 2 Dow. Par. E. 519; Ager i;. Eegents Canal Company, Coop. Eq. E. 77; Gardner 
 V. Trustees of Newburg, 2 John. Chy. E. 162; Belknap v. Belknap, Id. 463; 
 Osborne v. U. S. Bank, 9 Wheat. R. 738; Charles Eiver Bridge v. Warren Bridge, 
 6 Pick. E. 376; Crenshaw?;. Slate Eiver Co., 6 Eand. 245; Goddin v. Crump, 8 
 Leigh, 120. See also Johnson et ah v. Drummoud, &c., 20 Grat. 419; Osburn et al 
 V. Staley et al, 5 W. Va. 85; Eedd et ah v. The Supervisors of Henry Co., 31 Grat. 
 685; Eoper et ah v. McWhorten, 77 Va. 214; Blanton, Comm. v. Southern Fertilizer 
 Co., 77 Va. 335; McOung v. Livesay, 7 W. Va. 329; Buffalo et ah v. Town of 
 Pocahontas, 85 Va. 222; Am. & Eng. Encyc. of Law, Vol. 17, p. 593. 
 
182 PAETIES TO SUITS IN EQUITY. § 48 
 
 was aggrieved might have a remedy at law of some sort, more or 
 less eifectual, yet the remedy in equity would be far more effectual 
 and complete ; hence the court of chancery interposed by its in- 
 junction to prevent the threatened wrong, and to provide a remedy 
 which would at once reach the whole mischief, and secure the 
 rights of all, both for the present and the future ; and its jurisdic- 
 tion in such cases would seem to be well defined, and fully sus- 
 tained by authority. 
 
 Corporations. 
 
 § 48. A corporation of another State or country may sue in its 
 corporate name in Virginia,' or in any other State or country ; ^ 
 and it is in Virginia provided by statute,' that the fact of incor- 
 poration need not be proved, unless with the pleadings which put 
 the matter in issue there be an affidavit denying such incorporation. 
 A corporation may sue and be sued just as an individual may,^ 
 and process is served upon it by leaving it with the officer who is 
 generally designated by statute for that purpose ; or else by pub- 
 lication, as is provided in certain cases." 
 
 Where a discovery is needed of a corporation, its officers may 
 be made defendants, and be compelled to answer ; * but if the 
 company alone is sued, since it cannot be sworn, and puts in its 
 answer under seal only,'' such answer is no evidence for the defen- 
 
 1 Bank of Marietta v. Pindall, 2 Band. 465. See also 2 Bart. Law Pr., p. 1284. 
 
 = Angell & Ames on Corporations, §? 372-376; McKim v. Odom, 3 Bland. 419; 
 Beach on Private Corporations, §? 896, 897; Am. & Eng. Encyc. of Law, Vol. 8, 
 p. 375. 
 
 » I 3280; Code W. Va., Ch. 125, I 41. 
 
 * But it has been held in Missouri, that a public corporation may be restrained 
 from doing an act not authorized by law on an information in equity by a law 
 oiEcer of the State, in the name of the State. State ex rel Circuit Attorney v. 
 County Court, 51 Mo. 350; 11 Am. R. 454. 
 
 6 ? 3225 as amended by act of March 2, 1894, Acta 1893-4, p. 614; ? 3226 as 
 amended by act of February 27, 1894, Acts 1893-4, p. 515; ? 3227; Code W. Va., 
 Ch. 124, 52 7, 8, 9. 
 
 ^ Calvert on Parties, 23-254; Baltimore & Ohio Railroad Company v. City of 
 Wheeling, 13 Grat. 61. 
 
 'Story's Equity Pleading, § 235. 
 
§ 48 COEPOBATIONS. 183 
 
 dant, though responsive to the bill. In such cases the answer only 
 has the effect of putting the allegation to which it responds in 
 issue, and of imposing on the plaintiff the burden of proving it.^ 
 
 The shareholders of a joint stock company, where its members 
 are numerous, may proceed in the names of some on behalf of 
 them all, to compel the proper conduct of directors ; and in such 
 cases it is not necessary that each of the persons interested should . 
 be before the court by name.^ A like rule has been applied to 
 cases of voluntary associations, which, though not incorporated, 
 are recognized by law ; such as a large number of persons uniting 
 together to form a partnership ; ' and this, whether such persons 
 are plaintiffs or defendants;* but it is considered that a bill to 
 dissolve a partnership will not lie in the name of some on behalf 
 of others, without all the partners being made parties to the suit.'" 
 
 In the case of Cofiinan v. Sangston et cds, 21 Grat. 263, a bill 
 in equity was filed by Lawrence Sangston, who was the secretary 
 of a voluntary association, to compel one Coffman to account for 
 moneys received by him as agent for the association. To the 
 objection that such a suit could not be maintained, the court 
 replied, that it was alleged that the members of the society were 
 too numerous to sue in their own names, numbering from four to 
 five hundred, and that the practice in courts of equity of permitting 
 
 1 B. & O. E. R. Co. t-. City of Wheeling, 13 Grat. 62. 
 
 2 Story's Equity Pleading, § 109, 110; Field on Corporations, I 398. But for 
 stockholders to sue in equity in relation to the corporate property, they must allege 
 in the bill the refusal of the corporation to sue, after reasonable demand made. 
 Mount V. Eadford Trust Co., 93 Va. 427. If bill is to wind up the affairs of the 
 company, all stockholders are necessary parties. But if it be merely to make the 
 stockholders pay in a fund with which to pay debts, the whole number of stock- 
 holders is not indispensable as parties, though convenient that they should be so 
 made. It is not for the creditors to marshal assets and have equities between 
 stockholders decreed, but for those stockholders who are sued to bring in the others 
 for this purpose if they desire it. Martin v. South Salem Land Co., 94 Va. 28; 2 
 Va. Law Eeg. 744. 
 
 ' Story's Equity Pleading, ?§ Ill, 115. 
 
 * Story's Equity Pleading, ? 116. 
 
 » Ibid, ? 131, 132. See also Daniel's Chy. Pr., Vol. 1, p. 239 to 245. 
 
184 PARTIES TO SUITS IN EQUITY. § 48 
 
 one or more to represent in one suit all who have a community of 
 interest removed the diificulty, and enabled the court in that case 
 speedily to adjudicate the rights of the parties, without the slightest 
 danger of injustice.' 
 
 In such cases it should appear that the relief sought by the 
 party suing is beneficial to all those whom he undertakes to rep- 
 resent; and where one or a few individuals of a large number 
 institute a suit on behalf of themselves and the others, they must 
 so describe themselves in the bill, otherwise a demurrer or plea for 
 want of parties will lie.^ As in similar cases against individuals, 
 where the suit is to distribute the assets of an insolvent corpora- 
 tion among those entitled to them, all the creditors should be made 
 parties, by process or by convention before a master ; and so, also, 
 should all the stockholders be brought befere the court ;^ but 
 where a corporation transferred its whole stock and property to its 
 successor, which took it subject to the debts of the first corpora- 
 tion, and which it was ample to pay, it was held that a creditor of 
 the first corporation was not bound to convene all the creditors 
 before the court, but might prosecute his own claim alone.* 
 
 Creditors of an insolvent corporation suing for themselves and 
 on behalf of other creditors, may maintain a bill to compel the 
 latter to pay up the balances due on their several subscriptions to 
 stock ; and it is not a sufficient objection to such a bill for want 
 of proper parties, that all the creditors or stockholders are not 
 sued.' A mode of proceeding in such cases commonly resorted 
 to, is to appoint a receiver in the suit in chancery, who shall pro- 
 ceed to collect by suit against the individual stockholders such 
 
 ' See also Berkshire v. Evans et als, 4 Leigh, 223. 
 
 ^ Daniel's Chancery Practice, Vol. 1, p. 239 to 245. 
 
 » Crumlish's Adm'r v. Fidelity TriM and Safe Deposit Company, 40 W. Va. 627, 
 this being necessary for the establishment of their claims even though they may in 
 fact be bound by the proceeding in their behalf instituted by one or more of their 
 class in behalf of all. 
 
 * Barksdale et als v. Finney et als, 14 Grat. 338. 
 
 ^ OgUvie e< afe u Knox. Insurance Co. et id, 22 Howard, 380; Martin v. South 
 Salem Land Co., 94 Va. 28. 
 
§ 48 COEPOEATIONS. 185 
 
 amount of their stock subscriptions as shall be necessary for an 
 equitable adjustment, and winding up the aifairs of the company.^ 
 Where the rights of a corporation are involved, and the com- 
 pany refuses to sue, an individual shareholder may assert those 
 rights on behalf of himself and his associates ; but to such a suit 
 the corporation must generally be made a party.* 
 
 1 Nathan ?).Wliitloct, 9 Paige, 152; Sawyers. Hoag, 17 Wallace, 610; Danl. Chy. 
 Pr., Vol. 1, p. 274, note 2. The case of Lewis' Adm'r v. Glenn, 84 Va. 947, was 
 a writ of error from the judgment of a court in a suit brought by a trustee for an 
 unpaid subscription to a joint stock company, upon an assessment made in a suit in 
 chancery to which the stockholder was not a party. The objection offered was that 
 the assessment could not have been properly made in such a suit, but the comi held 
 that the stockholder was not a necessary party. Judge Kichardson, however, went 
 further, and said, "So far from their being necessary parties, the biU would haye 
 been demurrable had they been made parties." In Hamilton u. Glenn, 85 Va. 
 905, this rule was conceded to be right as to "a live and going corporation,'' but 
 it was contended that when the suit was to administer the assets of a dead corpora- 
 tion and to compel payment of enough of the unpaid subscriptions of stock to 
 satisfy its debts and to equalize the stockholders inter se, the stockholders them- 
 selves were not only proper but necessary parties. But this distinction was denied 
 by the court, and the stockholders were held not to have been necessary parties. 
 It cannot be that the law is correctly determined by those two cases, if the rules re- 
 quiring the presence as parties of aU persons interested in the subject of litigation 
 are themselves correctly stated by the text-books. In Hartman et cds v. Ina. Co. 
 of the Valley of Va. , 32 Grat. 242, this very question arose, and the court there 
 said : ' ' The stockholders being parties to the suit — and if any of them are not, they 
 shovM be made parlies — -accounts should be ordered," etc. In Manufacturing Co. v. 
 Bradley, 105 U. S. E. 174, the stockholders being liable for the debts of the com- 
 pany (as in Virginia they are, to the extent of their unpaid subscriptions), it was 
 held they were proper parties. But to a general creditor* s biU against a corporar- 
 tion the stockholders are held, in Virginia, to be neither necessary nor proper 
 parties — they being represented by the company. Bristol I. & S. Co. v. Thomas, 
 93 Va. 396. In Martin v. South Salem Land Co., 94 Va. 29, the rule is thus dis- 
 tinctly laid down. All the stockholders are necessary parties to a bUl filed for the 
 purpose of winding up the affairs of a corporation. But where the object of the 
 bill is to subject corporate assets, including unpaid subscriptions to stock, to the 
 payment of corporate debts, they are not indispensably necessary, though it would 
 be more convenient to have before the court all who have not paid in full, except 
 such as are unknown, insolvent, or beyond the jurisdiction of the court. It is not 
 the duty of creditors to marshal the assets, or adjust the equities between the stock- 
 holders. If the stockholders who are parties desire it, they can have the others 
 brought in by proper proceedings for that purpose. 
 
 ' Dodge V. Woolsey, 18 Howard, 340; Davenport v. Dows, 18 Wallace, 626; 
 Field on Corporations, § 398; Calvert on Parties, Law Lib. 17, p. 14; Green's 
 
186 PARTIES TO SUITS IN EQUITY. § 48 
 
 Where stockholders of a corporation were fully represented, 
 both by a railroad company and by a committee chosen and ap- 
 pointed by them, it was held that they need not be individually 
 made parties to. a creditor's suit.^ 
 
 It has also been held that the creditors of an incorporated com- 
 pany, who have exhausted their remedy at law,^ can, in order to- 
 obtain satisfaction of their judgment, proceed in equity against a 
 stockholder, to enforce his liability to the company for the amount 
 remaining due upon his subscription, although no account is taken 
 of the other indebtedness of the company, and the other stock- 
 holders are not made parties ; and although by the terms of their 
 subscription the stockholders were to pay for their shares " as called 
 for " by the company, and the latter had not called for more than 
 thirty per cent, of the subscriptions.' 
 
 Brices Ultra Vires, p. 183. In Crumlisli's Adm'r v. S. V. K. E. Co., 28 W. Va. 
 623, it was held that the company itself, which had ceased operations, was not a 
 resident of the State and had no active operating officers, was not a necessary party 
 to a suit by a stockholder to compel payment of a debt due to the company. 
 
 ' EaUroad Company v. Howard, 7 Wallace, 392. For a case in which it was 
 declared that stockholders were not proper parties to defend a suit, and of the cir- 
 cumstances under which they might be admitted as parties, see Washington, Alex, 
 and Georgetown K. E. Co. v. Alexandria and Washington E. E. Co. , 19 Grat. 592, 
 decided by a military court. Stockholders cannot sue where the company is bona 
 fide protecting their rights. Calvert on Parties, Law Lib. 17, p. 14. See also 
 Hersey ». Veazie, 24 Maine, 7; 41 Am. E. 364; notes, 367 to 370; Detroit v. Dean, 
 106 U. S. E. 527. Stockholders, of course, are not necessary when the suit is 
 against the company and involves a corporate question, for then the stockholders 
 are represented and bound by the company's presence. Hawkins v. Glenn, 131 
 U. S. E. 332; Glenn v. Liggett, 135 U. S. E. 544; Crumlish's Adm'r v. S. V. E. 
 E. Co., &c., 28 W. Va. 623; Bristol I. & S. Co. v. Thomas, 93 Va. 396. 
 
 ' The simple contract creditor of an insolvent and abandoned corporation may 
 maintain such a suit. Nunnally v. Strauss, 94 Va. 255; Finney v. Bennet, 27 
 Grat. 365. 
 
 ' Hatch V. Dana, 11 Otto, 205. See also Hartman et ah v. Ins. Co., 32 Grat. 242. 
 For the liabUity of stockholders to the creditors of a company to the extent of 
 their unpaid subscriptions, see 2 Bart. Law Pr., p. 1270 and cases cited. Also 
 Swan Land and Cattle Co. v. Prank, 148 TJ. S. E. 612; Coming v. McCullough, 1 
 N. Y. 47; 49 Am. Dec. 287; note, p. 308; Hightower v. Thornton, 8 Ga. 486; 
 52 Am. Dec. 412; note, p. 427. When the liability of stockholding corporations 
 or officers is penal, the liabUity dies with the person. Diversy v. Smith, 103 111. 
 378; 42 Am. E. 14; Mitchell v. Hotchkiss, 48 Conn. 9; 40 Am. E. 146. As to 
 
§ 49 creditors' bills, etc. 187 
 
 Creditor^ Bills, &c. 
 
 § 49. It is declared to be a well-settled principle, according to 
 the practice of the United States courts, that where it appears on 
 the face of the bill that there will be a deficiency in the fund, and 
 that there are other creditors or legatees who are entitled to a 
 ratable distribution with the complainants, and who have a com- 
 mon interest with them, such creditors or legatees should be made 
 parties to the bill, or the suit should be brought by the complain- 
 ants in behalf of themselves and all others standing in a similar 
 situation ; and it should be so stated in the bill.' 
 
 The general rule, however, does not confine this proceeding to 
 cases in which there will be a deficiency in the fund ; but in every 
 case of legatees, or of creditors of a deceased debtor, or of lien 
 creditors of a living man, one or more creditors may maintain a 
 suit in behalf of themselves and all the other creditors, and a 
 decree will be made for the benefit of them all. The other creditors 
 may come in under the decree, and prove their debts before a mas- 
 ter commissioner, to whom the cause is referred, and may obtain 
 satisfaction of their demands equally with the plaintiifs in the suit. 
 Under such circumstances they are treated as parties.^ If they 
 
 the liability of parties signing an S,greement to form a corporation, see Greenbrier 
 Ind. Ex. V. Kcfles, 37 W. Va. 738. Tbe unpaid stock subscriptions are a trust 
 fund for creditors, and are not released by anything short of actual payments, nor 
 can they be attached. See 2 Bart. Law Pr., p. 1270, and cases cited; Sawyer v. 
 Hoag, 17 WaUace, 610; Bichardson v. Green, 133 U. S. K. 30; Post, Vol. 2, I 319; 
 Hardy, Trustee, v. Norfolk Mfg. Co. et als, 80 Va. 404. 
 
 ' EaUroad Co. v. Orr, 18 WaUace, 474; referring also to Egbert v. Wood, 3 Paige, 
 517; Mitchell v. Lennox, 2 Id. 280; and Baldwin ti. Lawrence, 2 Simons & Stuart, 
 18; TUsoni). Davis' Adm'r, 32 Grat. 92. A single creditor jaay maintain the suit. 
 Eice V. Hartman, 84 Va. 251; Beverly v. Ehodes, 86 Va. 415. Although the bill 
 is not in form a general creditor's bill, yet if the case stated and the relief con- 
 templated and prayed are such as are contained in a general creditor" s bUI, it wUl 
 be considered and treated as such. Piedmont & Arlington Life Ins. Co. v. Maury 
 et als, 75 Va. 508. 
 
 ' Simmons v. Lyles et ah, 27 Grat. 928; Dickinson v. Eailroad Co., 7 W. V. 390; 
 Neely D. Jones, 16 W. Va. 626; Bensymer v. FeU, 35 W. Va. 17; McMillan v. 
 Hickman, 35 W. Va. 705. All plaintiffi and defendants in judgments docketed in 
 
188 PARTIES TO SUITS IN EQUITY. § 49 
 
 decline to come in before the master commissioner, they, at least 
 where suit is against the estate of a decedent, will be excluded 
 from the benefit of the decree, and yet they will be considered as 
 bound by the acts done under its authority.^ The creditors on 
 
 the counties where the land is sought to be subjected should be made parties in 
 West Virginia. Norris, Caldwell & (h. v. Bean et als, 17 W. Va. 655; Livesay 
 V. Feamster et cd, 21 W. Va. 83; Bihnyer v. Sherman, 23 W. Va. 656. This sub- 
 ject is now provided for by statute in West Virginia. Code W. Va., Ch. 86, §§ 
 7, 9, 10; Ch. 139, ? 7; McMiUan v. Hickman, 35 W. Va. 705; Farmers Bank v. 
 Watson, 39 W. Va. 344; Bansimer v. Fell, 39 W. Va. 448. Lack of necessary 
 parties to a creditor" s bUl will avoid all decrees entered in the suit. Farmers Bank 
 V. Watson, 39 W. Va. 342; Benson v. Snyder, 42 W. Va. 223; BUhneyer v. Sherman, 
 23 W. Va. 656. See, also, Kilbreth v. Boot's Adm'r, 33 W. Va. 600. In Virginia 
 the rule is as is stated in the text. Preston v. Aston's Adm'r, 85 Va. 113. 
 Creditors described, but not named, in the bDl as parties are not parties in 
 any sense until an order for a general acccount is entered under which they may 
 prove their demands, unless they be admitted upon a special application for the 
 purpose. Piedmont & Arlington Life Ins. Co. u. Maury et cd, 75 Va. 508. Nor 
 need the creditors be made specially parties, as they may come in under such an 
 order. Hall v. James et ah, 75 Va. 111. In West Virginia, under the statute and 
 as a rule of decision the beneficiaries in a deed of trust must be made parties and 
 are not bound by a general convention of creditors. Marshall's Ex' or v. Hall, 
 W. Va. ; 26 S. E. E. 200. 
 
 1 Story's Eq. PI. § 99; Daniel's Chy. Pr., Vol. 1, p. 235; Calvert on Parties, pp. 
 30, 58. The rule has not been carried to the extent of holding that the lien 
 creditor of a living man who has not been made a party, or proved his claim before 
 the commissioner, wUl be bound by the proceedings in the suit. See Paxton v. 
 Rich, 85 .Va. 381. The rule fixed by decision and statute in West Vii'ginia re- 
 moves the difficulty apt to arise under this practice in Virginia. All lieu creditors 
 in the county or city where the suit is should be made directly parties tJthe suit, or 
 else be held boimd by a convention of creditors. A decree for an account of liens 
 against a living man does not operate as a stay of all pending actions against him, 
 but the plaintiff may proceed to judgment and afterwards come into the chancery 
 suit and have his lien satisfied in that proceeding. Paxton v. Eich, 85 Va. 382. 
 Neither does such a suit prevent the institution of and prosecution to judgment of 
 a claim, an action for which is not pending at the time the chancery suit is brought. 
 The rule of estoppel of a general creditor's suit seems to have been applied by Judge 
 Fitzhugh, in the case of Henry & Blackwell v. Ould & Carrington, 7 Va. Law 
 Journal, 54, to a judgment creditor who stood by and saw his debtor's land sold 
 under decree of the court and the proceeds distributed, and yet failed to assert his 
 lien. But it is generally true that land sold at the suit of a prior judgment creditor 
 is still liable to the lien of the senior judgment if the latter is neither specially 
 made a party to the suit or convened by a general order. Sexton's Ex' or v. Pat- 
 terson, 8 Va. Law Journal, 72. This is true, whether the suit be at the instance 
 of a senior or junior judgment creditor. , 
 
§ 49 CEEDITOES' BILLS, ETC. 189 
 
 whose behalf such a bill may be filed need not be all of one class 
 or order of lien ; for where there were several successive mort- 
 gages of a railroad, it was held that the suit might be maintained 
 on behalf of all the holders under the several mortgages ; * but 
 whether all such creditors are to be regarded as plaintiffs or de- 
 fendants, they must, nevertheless, be all brought before the court 
 by process or convention before a master ; for until the court has 
 ascertained and adjusted the amounts of the liens and their priori- 
 ties, it is error to decree a sale.^ 
 
 Where the bill was to subject the debtor's estate to a judgment 
 rendered against him as garnishee, it was held not to be necessary 
 to make the original debtor a party to the suit.^ 
 
 Where the holder of a negotiable note filed a bill in equity to 
 subject the estate of a deceased endorser to its payment, the court 
 of appeals directed the representatives of the deceased maker and 
 of another endorser to be made parties to the suit.* 
 
 The fact that the debtor has executed deeds of trust upon his 
 land will not prevent the court from taking jurisdiction of a 
 general creditor's bill ; ° as a rule, however, the trustees in the 
 several deeds of trust, and all the creditors therein named, either 
 by process or convention, should be made parties ; but where one 
 object of the bill was to set aside a deed of trust, and it appeared 
 
 1 Galveston Eailroad v. Cowdrey, 11 Wall. 478. But see Stor/s Eq. PI., ? 101. 
 
 'Moran v. Brent et als, 25 Grat. 104; Cole's Adm'r v. McEae, 6 Band. 644; 
 Smith et ah v. Flint et ah, 6 Grat. 40; Lipscomb v. Eogers et ah, 20 Grat. 658; 
 White V. Mech. B. F. Association, 22 Grat. 233; Simmons v. Lyles et al, 27 Grat. 
 922; Kendrick et als v. Whitney et als, 28 Grat. 646; Anderson v. Nagle et al, Va. 
 Law Jom-nal, 1879, p. 180. As to the form and nature of a creditor's bUl, and 
 the practice in such cases, see Post, § 91. In a convention before a master the 
 names of the persons before served with process and called on to appear need not 
 be stated in the publication, as they must be when the publication is to commence a 
 suit. Martin v. South Salem Land Co., 94 Va. 28; Va. Law Beg., Vol. 2, p. 744. 
 
 •Shand's Ex'x v. Grove et ah, 26 Grat. 652. 
 
 *Duerson's Adm'r v. Alsop et als, 27 Grat. 229. 
 
 'Taylor's Adm'r et als v. Spindle, 2 Grat. 44; United States v. Morrison, 4 
 Peters, 124; Fox u. Bootes, 4 Leigh, 429; McClung v. Beirne, 10 Leigh, 394; 
 Claytoru Anthony, 6 Band. 285; Bayard, &c. v. Hoffman, &c., 4 John. Chy. E. 
 450; Egberts v. Pemberton, &c., 7 John. Chy. E. 208. 
 
190 PARTIES TO SUITS IN EQUITY. § 50 
 
 that the trustee did not sign or act under the deed, and lived out 
 of the State, it was considered not necessary to make him a party 
 to the suit.* 
 
 When the suit is to subject land of a deceased person to the pay- 
 ment of his debts the heirs should be made parties, as holding the 
 legal title ; and also the legatees, if there be any. The widow, 
 too, should be made a party, in right of her claim to dower ; ^ but 
 a bill cannot be maintained against her as widow, in a suit to which 
 she is a party only as administratrix or guardian.^ 
 
 Discovery. 
 
 § 50. In Calvert on Parties, page 90, it is declared that to a bill 
 of discovery no question can be raised, whether any persons besides 
 those brought before the court ought to have been made parties ; 
 and that the sole point to be determined is, whether the discovery 
 sought for can be obtained by the plaintiff from the person who is 
 made defendant ; but it has been decided that a bill of discovery 
 in aid of proceedings in another court cannot be maintained against 
 a person who is not a party to such proceedings.^ 
 
 In the case of Brinkerhoff and others against Brown, 6 Johns. 
 Chy. R. 139, it was held that different judgment creditors might 
 unite in one bill for discovery and account, the object of which 
 was to set aside impediments to the remedies at law, created by the 
 fraud of their common debtor ; and so far as there is any general 
 rule upon this subject, it may be said to be like that as to the 
 necessity for parties generally, that all persons interested in the 
 matter to be discovered ought to be made parties to the bill.' 
 
 ' Barger v. Buckland et cds, 28 Grat. 850; Bilmeyer v. Sherman, 23 W. Va. 656; 
 Bansimer v. FeU, 35 W. Va. 17; Turk v. Skiles, 38 W. Va. 404. 
 
 ' Lomax on Ex' ors, Vol. 2, p. 805. , 
 
 ' Pennington v. Hanby et aU, 4 Munf. 144. On the subject of parties to creditor's 
 bills, see Snider*. Brown el at, 3 W. Va. E. 143, 154; ChUicothe Oil Co. v. Hall 
 et ah, 4 Id. 703; Hinchman, Adm'r v. BaUard, Adm'r, 7 Id. 152. 
 
 * Daniel's Chy. Prac, Vol. 2, p. 1558. 
 
 ' Key's Ex' ors v. Lambert, &c., 1 H. & M. 330. 
 
§ 51 DISABILITIES OF PAETIES. 191 
 
 Officers of a corporation may be made parties to a bill of dis- 
 covery for the purpose of enabling the complainant to obtain a 
 knowledge of facts which could not be ascertained by the answer 
 of the corporation, put in under their corporate seal and without 
 oath.' This is an exception to the general rule that a mere wit- 
 ness cannot be made a party defendant ; ^ the reasons for which 
 apply as well to the former as to the present officers of a corpora- 
 tion, when the knowledge of the facts, of which the discovery is 
 sought, rests only with such officers, and especially when it relates 
 to their own official acts.^ 
 
 Disabilities of Parties. 
 
 § 51. Persons under disabilities (except adult married women*) 
 sue by their next friends, or, in some cases by their guardians or 
 committees ; and when made defendants they are represented by a 
 guardian ad litem, and without the assignment ' of such a guardian 
 it is error to make a decree affecting their rights.* Where a bill 
 showed on its face that the party whose interest was the principal 
 one to be affected by the decree, was both a minor and a feme 
 covert, and that no one appeared for her in any manner to protect 
 her interests, it was declared to have been the duty of the court to 
 appoint a guardian ad litem for that purpose.' 
 
 Where, pending a suit, the sons of the defendant filed a petition 
 stating that their father was of unsound mind, the course thought 
 proper to be followed was for the court to institute an inquiry as 
 
 > Vermilya v. Fulton Bank, &c., 1 Paige, 37; Ante, I 48. 
 
 2 Wych V. Meal, 3 P. Wms. 310. 
 
 ' Fulton Bank v. Sharon Canal Co., &c., 1 Paige, 219. 
 
 ♦ Act March 3, 1898, Acts 1897-8, p. 744. 
 
 ' But where no formal assignment of a next friend was made in a partition suit, 
 and yet the infant was joined therein with his mother and the administrators, quaere 
 if they might not, in the absence of evidence to the contrary and for the purpose 
 of giving effect to the proceedings, be regarded as his next friends. Wilson and 
 Wife, &c. V. Smith, 22 Grat. 494. 
 
 ^Boberts' Widow, &c. v. Staunton, 2 Munf. 129; Myers v. Myers et als, 6 W. 
 Va. 369. 
 
 ' O'Hara et al v. MacConnel ei al, 3 Otto, 152. 
 
192 PARTIES TO SUITS IN EQUITY. § 61 
 
 to the state of the defendant's mind at that time, and upon the 
 result of that enquiry to determine upon the appointment of a 
 guardian ad litem} 
 
 Where there had not been sufficient service of process on an 
 infant defendant, the supreme court of the United States declared 
 that it was error to appoint a guardian ad litem for such infant ; ^ 
 but in Virginia it is provided by statute^ that the proceedings in 
 a suit where an infant or insane person is a party shall not be 
 stayed because of such infancy or insanity ; but the court in which 
 the suit is pending, or the clerk at rules, may appoint a guardian 
 ad litem for any infant or insane defendant, whether such defendant 
 shall have been served with process or not. 
 
 Where the committee of a lunatic sues to set aside an act done 
 by him under mental imbecility, it is not necessary for the lunatic 
 himself to be a party to the suit.^ 
 
 The law is careful to preserve the rights of infants, who are 
 presumed to want discretion for the conduct and management of 
 their aifairs ; and therefore it is that it does not allow an infant to 
 sue or defend in proper person, or to make an attorney for that 
 purpose ; but he must almost always sue either by prochein ami, 
 or by guardian assigned by the court, and he must always defend 
 by guardian. A guardian may, however, file a bill for the sale of 
 his ward's land.° 
 
 A guardian cannot file a bill in his own name against a former 
 
 guardian for an account ; ^ but such a bill, or one for the purpose 
 
 of obtaining possession of the ward's estate, must be filed in the 
 
 name of the ward by his next friend.^ 
 
 ' Campbell v. Bowens' Adm'r and another, 1 Kob. R. 255. 
 2 Galpin v. Page, 18 WaUace, 350. 
 
 ' § 3255; Code W. Va., Ch. 125, ? 13. In Virginia the guardian ad litem must 
 he an attomey-at-law if one can be found to act. 
 
 * Ortley v. Messere, 7 Johns. Chy. E. 139. 
 
 ^ ? 2615 to § 2626; Code W. Va., Ch. 83. Error to proceed without appointuig 
 a guardian ad litem and he must answer. Alexander v. Davis, W. Va. ; 26 S. E. 
 E. 291. " Lemon v. Hansbarger, 6 Grat. 301. 
 
 ''Id.; Sillings et als v. Bumgardner, 9 Grat. 273; Burdett, Guardian, v. Cain, 
 Adm'r, 8 W. Va. 282. 
 
§ 51 DISABILITIES OF PARTIES. 193 
 
 As to the selection of the next friend, the rule is that the nearest 
 relation is generally the proper person ; ' but as that relation may 
 himself have injured the infant, and be liable to a suit therefor, or 
 may be otherwise an improper person, the court will permit any 
 person^ to institute a suit on his behalf, and he is to be named as 
 next friend in the suit and pleadings. That person ought, how- 
 ever, to be a person of substance, for he is liable to pay the costs.' , 
 It has, moreover, been held, in an unreported case, decided by the 
 general court (1737), that payment by a judgment debtor to the 
 next friend named in a suit was a valid payment. 
 
 The form of the suit and the writ must be in the name of the 
 infant by his guardian or next friend, and not in the name of the 
 guardian or next friend suing for the infant. For this error the 
 court of appeals of Virginia reversed the judgment in the case of 
 Stewart v. Crablins, Guardian, 6 Munf. 280. An answer to the 
 bill must, however, be by the guardian ad litem, and be sworn to 
 by him as such; but where an answer purported to be the infant's 
 by his guardian ad litem, and yet it contained the opinions, state- 
 ments and responses of the guardian, and was signed by him, it 
 was held to have the same effect as if it was formally designated 
 and filed as the answer of the guardian in his proper person. 
 Where, too, it did not appear that the answer was sworn to, the 
 court presumed, in the absence of all evidence, that it was regu- 
 larly sworn to."* 
 
 Where there is a committee of a lunatic, every suit respecting 
 the person or estate of the lunatic must be in the name of the 
 committee ; ^ but where the bill was in the name of " C, who, 
 
 ^He must not be insolvent, and the suit must be for the infant's or lunatic's 
 benefit, otherwise it will be dismissed. Fulton and Others v. Kosevelt, 1 Paige, 
 178; Garr, &c. v. Drake, &c., 2 Johns. Chy. B. 542; DaCosta ii. DaCosta, 3 P. 
 Wms. 140. 
 
 " Not so in the case of a married woman. Post, I 89. 
 
 ' Burwell et als v. Corbin et als, 1 Band. 151. 
 
 * Durrett v. Davis, Guardian, et ah, 24 Grat. 310. 
 
 5 Bird's Committee ». Bird, 21 Grat. 712. 
 
 13 
 
194 PARTIES TO SUITS IN EQUITY. § 52 
 
 being a person of unsound mind, sues by liis next friend and oom- 
 mittee, P," it was held to be substantially a suit by the committee 
 in the name of the lunatic* Where there is no committee, the 
 lunatic sues by his next friend ; and where the interests of the 
 committee, where there is one, clash with those of the idiot, con- 
 vict, or lunatic, the suit may be in his or her name, with some 
 responsible person, who shall be approved by the court, as next 
 friend.^ Where the suit is to sell the lands of a lunatic or infant, 
 the lunatic or infant, and all those who would be his heirs or dis- 
 tributees if he were dead, must be made parties.' 
 
 Foredosure of a Trust or Mortgage. 
 
 § 52. What has been said of one or more creditors suing for 
 themselves, and on behalf of the others, applies also to suits to 
 foreclose mortgages or deeds of trust ; and we have already seen 
 that, where a large number of persons are secured in one or sev- 
 eral deeds, a few may institute the suit, and make the others par- 
 ties by process or by convention before a master commissioner in 
 chancery.^ Commenting upon the reasons given by Lord Redes- 
 dale for the propriety of such a rule, which were, that if a great 
 many creditors were to be made plaintiffs, the suit would be liable 
 to the hazard of frequent abatements by the deaths of the creditors, 
 and if many were made defendants, the same inconvenience might 
 happen, and additional expense would unavoidably be incurred. 
 Judge Story adds, that the mischief would not in many cases stop 
 here, " for," said he, " when the debts due to any of the creditors 
 were unascertained, and depended upon the future adjustment of 
 accounts, and the funds under the trust deed were inadequate to 
 a full discharge of all the debts ; or where any of the creditors 
 had preferences, and the debts were unliquidated ; or where any 
 
 ^ Cole's Committee v. Cole's Adm'r, 28 Grat. 370. 
 ^ Bird's Committee v. Bird, 21 Grat. 712. 
 
 3 1 2616, as amended by act of March 5, 1888, Acts 1887-8, p. 503, and by act 
 of May 1, 1888, Acts 1887-8, p. 239; Code West Va., Ch. 83, § 2. 
 * For rule in West Virginia, see Ante, p. 187, note 2. 
 
§ 52 FORECLOSURE OF A TRUST OR MORTGAGE. 195 
 
 of the preferred creditors were out of the country ; in these and 
 many other instances the difficulty of administering substantial 
 justice between the creditors, if the court were compelled to wait 
 until all of them were technically parties before the court, would 
 be almost insuperable." ' Even as it is under the rule of practice 
 so well settled, as declared by Judge Story, the difficulties which 
 he suggests frequently arise ; for it has also been held, that it is 
 improper in a trustee in a deed of trust to secure a debt, to make a 
 sale so long as it remains uncertain what amount is due on account 
 of the debt, and to make that certain it is his duty, before making 
 a sale, to ascertain the amount to be raised by the sale,^ and to 
 bring a suit in chancery to procure a settlement by a commissioner 
 for that purpose, if necessary ; or if he fail to do this, the debtor 
 may do it, and in the meantime enjoin the sale.'. The trouble 
 and delay in such cases is of course multiplied in proportion to the 
 number of creditors secured in the deed or deeds of trust. 
 
 It has been declared to be the general rule,'' that persons having 
 demands prior to the creation of the trust may enforce those de- 
 mands against the trustees without bringing before the court the 
 persons interested in the trust, if the absolute disposition of the 
 property is vested in the trustee. And if there is a general trust 
 for creditors or others whose demands are not distinctly specified 
 in the creation of the trust, inasmuch as the number, as well as 
 the difficulty of ascertaining who may answer a general descrip- 
 tion, might greatly embarrass a prior claim against the trust prop- 
 
 1 Story's Equity Pleading, § 103. 
 
 ' Post, Vol. 2, ? 333. In a suit to enforce a vendor' s lien, complainant is entitled 
 to a personal judgment for the full amount of the unpaid purchase price, and not 
 merely for the balance remaining due after crediting the proceeds from the sale of 
 the land. Fayette Land Co. v. L. & N. E. K. Co., 93 Va. 274; 24 S. E. E. 1016. 
 There may be a personal decree against a vendee who has assumed payment of the 
 debt. Fisher v. White, 94 Va. 236. When there are liens prior to the purchase 
 money lien sought to be enforced, see McClaugherty v. Croft, W. Va. ; 27 S. E. 
 E. 246. 
 
 ' Hogan V. Duke et al, 20 Grat. 244; Horton el als v. Bond, 28 Grat. 815. 
 
 * Daniel's Chancery Practice, Vol. 1, p. 259. 
 
196 PARTIES TO SUITS IN EQUITY. § 52 
 
 erty, the court will dispense with their being made parties.' This 
 is true of course as it is also true of every other case where the 
 parties are too numerous to be brought in individually, and where 
 their interests, when not before the court, will not be affected by 
 any decree rendered therein ; but as the practice in Virginia for- 
 bids a decree for sale of land at the suit of a creditor until all the 
 liens and their priorities are established,^ the creditors, however 
 numerous, and whether prior or subsequent to complainant's claim, 
 unless their liens have been acquired since the suit was instituted,^ 
 must be brought before the court individually or by convention.* 
 The general rule requiring all persons interested in the suit to 
 be made parties, requires that in a bill to foreclose a trust there 
 should be brought in the grantor or mortgagor, or, if he be dead, 
 his heirs and administrator ; ^ all persons having an interest in the 
 equity of redemption ; all other incumbrancers, whether prior or 
 subsequent ; ^ and where there is a second mortgage as collateral 
 security, both mortgagors must be made parties.^ 
 
 ' Story's Equity Pleading, § 149. 
 
 ^ Daniel's Chancery Practice, Vol. 1, p. 237; Eeynolds v. The Bank of Va. et als, 
 6 Grat. 181; Payne & Green v. Webb ei al, 23 W. Va. 558; Cunningham v. Hed- 
 rick, 23 W. Va. 579; Daingerfield v. Smith, 83 Va. 81; O^den v. Brown, 83 Va. 
 670; Adkins v. Edwards, 83 Va. 300; Strayer & Wife v. Long, 83 Va. 715. This 
 rule does not apply to a lien for purchase money. Turk v. Skiles, 38 W. Va. 404; 
 Moreland J). Metz, 24 W. Va. 130; Cunninghams. Hedrick, 23 W. Va. 579; Long 
 V. Perihe, W. Va. ; 23 S. E. K. 611. But if the account of liens has not been taken 
 it is held that upon a proceeding for a resale the purchaser could not make that 
 objection for the first time in the court of appeals. Eeed and Wife v. Dyer et als, 
 83 Va. 331; News Ex. v. Bass, 92 Va. 383. Does not apply to suits to set aside 
 fraudulent conveyances. State v. Bowen, 38 W. Va. 91. 
 
 ' Linn v. Patton, Trustee, 10 W. Va. 187; Long v. Perine, 41 W. Va. 315. The 
 power given a trustee to sell under a deed of trust is merely a cumulative remedy, 
 and the creditor, without enforcing his trust in that way, may proceed by suit in 
 equity and sell the property under its decree. Gait's Ex' or v. Colland's Ex' or, 7 
 Leigh, 603; Priddy & Taylor v. Hartsook, 81 Va. 67; Am. & Eng. Encyc. of Law, 
 Vol. 26, p. 881. 
 
 *But see Haines, &c. v. Beach, &c., 3 Johns. Chy. B. 459; Ensworth v. Lam- 
 bert, &c. 4 Johns. Chy. E. 605; McGown, &c. v. Yerlis, &c., 6 Johns. Chy. E. 450, 
 Hallock V. Smith, &c, 4 Johns. Chy. R. 649; Lomax Digest, Vol. 1, p. 527. 
 
 5 Daniel's Chy. Pr., Vol. 1, p. 221; Stewart, Adm'r, v. Jackson, 8 W. Va. 29. 
 
 'But see Daniel's Chy. Pr., Vol. 1, p. 213-279. 
 
 ' Story's Eq. PI., ? 193 to 198; Jerome v. McCarter, 4 Otto, 734. 
 
§ 52 FORECLOSURE OF A TRUST OR MORTGAGE. 197 
 
 Judge Story declares/ that if a mortgagee be dead, his personal 
 representative is the proper plaintiff to bring the bill, but that the 
 only case in which a personal representative is necessary to be 
 made a party defendant to a bill of foreclosure seems to be when 
 he has an interest in the equity of redemption. The rule in Vir- 
 ginia, however, in the case of a dead person,^ is that the personal 
 estate constitutes the primary fund for the payment of debts, and 
 the personal representative should be a party to the suit ; for if 
 there is personal estate sufficient for that purpose, it will be applied 
 to the relief of the land.' Where, after a mortgage of real prop- 
 erty, it was conveyed in trust for the benefit of children, both in 
 being and to be born, it was held that all children in esse at the 
 time of filing the bill of foreclcfsure should be made parties ; * and 
 if the legal title is outstanding in any one, he too should be made 
 a party to such a suit.' Hence it follows that the trustee in a deed 
 of trust is always a necessary party ; ^ if there be more than one 
 all should be included ; if some die it is sufficient to make the sur- 
 vivors parties,"^ and if all are dead the personal representative of 
 the last survivftr should be made a party, unless some one has been 
 substituted in his stead.* 
 
 The subject of parties to suits to foreclose a mortgage or deed 
 of trust may be advantageously treated by a brief synopsis of some 
 of the decisions touching it rendered by the difi^erent courts. It 
 has been held,' that where there has been no assignment by mort- 
 
 • Story's Eq. PI., §200. 
 
 ^ This is not true in the case of a living person, even against a judgment. Price 
 V. Thrash, 30 Grat. 515; Moore v. Bruce, 85 Va. 1.39. For cases in which heirs 
 and devisees are given a day to redeem, see McDearman's Ex'ors v. Eobertson, 
 Va. Law Journal, 1879, p. 175. 
 
 ^ Lomax on Ex'ors, Vol. 2, p. 405. ■" Clark v. Eeybum, 8 Wallace, 318. 
 
 ^ Hortons et ah v. Bond, 28 Grat. 815. 
 
 « Daniel's Chy. Pr., Vol. 1, p. 193; Baker v. Oil Tract Co. 7 W. Va. 454; Pickens 
 V. Love's Adm'r, W. Va.; 29 S. t. E. 1020. ' 
 
 ' Story sEq. PI., ? 210, 211. 
 
 8 I 3419, as amended by act of February 7, 1890; Acts 1889-90, p. 41, U 3420, 
 3421, 3422, 3423; Code W. Va., Ch. 132, §§ 5, 6. 
 
 9 Van Vechten, &c. v. Terry, &c., 2 Johns. Chy. E. 197. 
 
198 PARTIES TO SUITS IN EQUITY. § 52 
 
 gagee or mortgagor, and both are alive, it will generally be suffi- 
 cient to file the bill to foreclose in the name of the mortgagee 
 against the mortgagor. In this case a large number of persons 
 purchased a piece of property, and it was conveyed to certain 
 trustees selected by them to be held for them. A bill of fore- 
 closure was filed against the trustees and to a demurrer, because 
 the stockholders were not made parties, the court, overruling the 
 demurrer, replied that it seemed to it that the trustees represented 
 sufficiently all the interests concerned. 
 
 In the case of Call v. Scott, &c., 4 Call. 402, the endorser of a 
 bill of exchange had a mortgage from the drawer for his security, 
 and after the protest and before payment, brought a suit against 
 the mortgagor to foreclose the mortgage. The defence was usury, 
 but the holder of the note was not made a party. Here the court 
 refused to proceed until the holder should be brought into the case. 
 
 Where the mortgagor and mortgagee are both dead, if the mort- 
 gage be of personal property, and there has been no assignment, a 
 bill to foreclose should be by the personal representative of the 
 mortgagee against the executor or administrator of the mortgagor.' 
 When the mortgage is of land, and the mortgagor has devised the 
 equity of redemption, the devisees must be made defendants to a 
 bill to foreclose ; ^ and this notwithstanding the devise was upon 
 certain conditions which the complainant alleges were never com- 
 plied with, for that is a matter that cannot be investigated until 
 the devisees are made parties.' In a suit merely against devisees 
 it was held that, as against them the mortgagee is not obliged to go 
 into an account of the personal assets of the mortgagor, there was 
 no necessity to make the personal representative of the mortgagor 
 a party ; * but in another case'^ it was thought that, as the personal 
 representative might have it in his power to show payment or 
 
 'Harrison v. Harrison, &c., 1 CaD. 419. 
 ' Graham's Ex' or v.. Carter, 2 H. & M. 6. 
 » Mayo V. Tomkies, 6 Munf. 520. 
 ■* Patton V. Page, 4 H. & M. 449. 
 ^ Harrison v. Harrison, 1 Call. 419. 
 
§ 52 FOEECLOSUEE OF A TRUST OR MORTGAGE. 199 
 
 satisfaction, he ought for this reason to be made a party. Since 
 in Virginia land is liable now for the payment of all debts, and 
 the heir must be sued only in equity, the fact that the personal 
 estate is a primary fund for the payment of debt seems to render 
 it necessary that the personal representative should be made a 
 party to all suits to foreclose a mortgage or deed of trust. ^ 
 
 When a devisee has died, his heirs should be brought before 
 the court, and if he has sold the land, the purchaser from him 
 should be made a party, or the executors of the purchaser, if he 
 be dead.^ 
 
 Where the mortgagee made an absolute assignment of all his 
 interests, and the assignee filed a bill to foreclose, it was held that 
 the mortgagee need not be made a party ; ^ but otherwise where 
 the assignment was not of the mortgagee's whole interest ; * and 
 he would seem to be a necessary party unless his assignment was 
 without recourse.^ 
 
 Where a grantor has conveyed all his interest in property to 
 trustees, they are the proper persons to bring a suit respecting it, 
 and the grantor need not be made a party ; ^ and in one case, 
 under its peculiar circumstances, the cestuis que trusts were held to 
 be sufficiently represented by the trustees to dispense with the 
 necessity of making them parties.'^ 
 
 In Mitchell v. Lenox & Taylor, 2 Paige, 280, the complainant 
 had assigned all his property to trustees, in trust to pay certain 
 debts due the United States and to H. Stevenson, and to divide 
 the surplus, or so much thereof as might be necessary, among such 
 of the other creditors of the complainant as should come in under 
 the assignment, and release him from the payment of their de- 
 
 ^ LomEts on Executors, Vol. 2, p. 405. 
 = Mayo V. Tompkies, 6 Munf. 520. 
 
 ' Whitney v. McKinney, 7 Johns. Chy. E. 144 ; Newman v. Chapman, 2 
 Band. 93. 
 *Hobart v. Abbot, 2 P. Wms. 643. 
 ' This chapter. Ante, I 43. 
 ° Carter, &c. i;. Harris, 4 Band. 199. 
 ' Buck V. Pennybacker's Ex'ors, 4 Leigh, 5. 
 
200 PAETIES TO SUITS IN EQUITY. § 53 
 
 mands. Creditors having debts amounting to more than fifty-four 
 thousand dollars came in under the'assignment and complied with 
 its conditions. Two of these creditors were afterwards paid by 
 the complainant, who took an assignment of their debts. To a 
 bill against the surviving trustees the defendants demurrtd, be- 
 cause the creditors who came in under the assignment were not 
 made parties, and this demurrer was sustained. 
 
 Fraudulent Transactions. 
 
 § 53. Where a suit is brought to set aside a conveyance of real 
 property on the ground of a fraud practised by the grantee upon 
 the grantor, and the grantor js dead, the bill may be filed in the 
 name of the heirs or devisees of the grantor ; ' but if the convey- 
 ance be of both real and personal property the administrator must 
 also be a party.^ 
 
 Where a judgment creditor sought to set aside an assignment 
 or deed of trust made by his debtor, upon the ground that it was 
 fraudulent and void, it was held,^ that the proceeding might be 
 against the fraudulent assignee or trustee, without including the 
 cestuis que trusts, and a distinction was taken between a bill of that 
 kind and one to enforce a claim under a trust ; but the rule and 
 the distinction do not seem to be consistent with sound reason ; 
 they are against the established practice ; ■* and in Virginia it has 
 been distinctly held that, in such a case, both the trustees and 
 cestuis que trusts must be made parties.* 
 
 To a bill to set aside a fraudulent conveyance, the grantor is a 
 necessary party ; * and if it be to set aside a fraudulent assignment 
 of a bond, the obligor in the bond should be made a party.' 
 
 ' Livingston v. Peru. Iron Company, 2 Paige, 390. 
 
 ^Samuel n. Marshall, &c., 3 Leigh, 567; Whelan v. Whelan, 3 Cow. 580. 
 
 'Rogers, &c. v. Eogers, &e., 3 Paige, 379. 
 
 * Billup V. Sears et ah, 5 Grat. 31. 
 
 ^ Clough, &c. V. Thompson, 7 Grat. 26. 
 
 * Gaylords v. Kelshaw et aX, 1 Wallace, 81. 
 
 ' Greer v. Wright, 6 Grat. 154. A surety before loss incurred or pajTnent made 
 by him has no right in equity to avoid as fraudulent a conveyance of his principal 
 
§ 53 FEAUDTJLENT TRANSACTIONS. 201 
 
 Where a bill was filed to subject land to the satisfaction of a judg- 
 ment after the death of the debtor, and charging fraud in certain 
 conveyances by him to his son, persons to whom the son had con- 
 veyed were held to be proper parties ; ' and when the object of the 
 suit was to set aside fraudulent completed judicial proceedings 
 regular on their face, the plaintiff in those proceedings was held 
 to be a necessary party.^ 
 
 In the case. of Tate v. Liggatt, &c., 2 Leigh, 106, a creditor ob- 
 tained a decree against his debtor, and sued out a ca. sa., under 
 which the debtor took the oath of insolvency, and then the creditor 
 filed a bill to subject property which had been conveyed in trust 
 to secure a pretended debt ; and it was held that the marshal who 
 levied the ca. sa. and in whom the right of the debtor vested by 
 operation of law upon the surrender of his effects as an insolvent 
 debtor, ought to be made a party.^ 
 
 Different judgment creditors may unite in one bill for discovery 
 and account, the object of which is to set aside impediments to 
 
 on the ground that he fears he may become the creditor of his principal by being 
 compelled to pay. Williams v. Tipton, 5 Humphreys, 66; 42 Am. Dec. 420. A 
 bill qida timet would lie by the surety to compel his creditor to sue when the debt 
 was due. 2 Am. & Eng. Encyc. of Law, p. 260. Qucere, whether in such case 
 it would not now lie before the debt is due, as the creditor now may sue on such a 
 debt. Code, ?^2460, as amended by act of March 1, 1894, Acts 1893-4, p. 614. 
 The administrator of an assignor cannot sue to set aside a fraudulent conveyance. 
 Coltrain v. Causey, 3 Iredell's Eq. 246; 42 Am. Dec. 168. As to the right of an 
 assignee in banlcruptcy to file such a bill, see Elder's Ex' or v. Harris, 76 Va, 187. 
 
 ' Henderson v. Henderson's Ex'x, 9 Grat. 394. Such a case must be governed, 
 however, by the extent to which such a conveyance affects a purchaser; as to which 
 see Ante, Ch. 2, ? 25, note, and Code, ? 2459; Code W. Va., Ch. 74, ? 1. It has 
 been held not necessary to make the heirs of a fraudulent grantor parties to a 
 creditor's suit, inasmuch as the deed, though fraudulent as to creditors, was valid 
 between the parties. Hall v. James, 75 Va. 111. But, as to this, see Walker v. 
 Powers, 104 U. S. E. 245 Persons induced by identical fraudulent misrepresenta- 
 tions may unite in one biU. Bosher v. Land Co., 89 Va. 455; Rader v. Bristol 
 Land Co., 94 Va. 766; 27 S. E. K. 590. 
 
 ^Harwood v. Railroad Co., 17 Wallace, 78. 
 
 'See, also, Deaa v. Thome, &c., 3 Johns. R. 543; Mo van and Wife v. Hays, 1 
 Johns. Chy. R. 339; Osgood v. Franklin, 2 Johns. Chy. R. 18; Wardi). Van Bok- 
 kelen, &c., 2 Paige, 289; DeWolfi;. Johnson, 10 Wheat. 367; Clough, &c. v. Thomp- 
 son, 7 Grat. 26. 
 
202 PARTIES TO SUITS IN EQUITY. § 54 
 
 their remedies at law, created by the fraud of their common 
 debtor,^ and to have his estate distributed among them according 
 to the priority of their respective liens, or ratably, as the case may 
 be ; and a bill may be filed against several persons relative to mat- 
 ters of the same nature, forming a connected series of acts, all in- 
 tended to defraud and injure the plaintiffs, and in which the de- 
 fendants were more or less concerned, though not jointly, in each 
 act.^ 
 
 Where a deed of trust was assailed as to some creditors, and 
 admitted to be fair as to others, both classes of creditors were held 
 to be necessary parties.^ 
 
 Heirs as Parties. 
 
 § 54. Wherever debts are charged on land by a will, if the 
 charge is sought to be enforced by sale or otherwise against the 
 land, the heirs or devisees affected thereby, as well as the personal 
 representatives, are necessary parties.^ The same is true where 
 land is assets for the payment of debts, whether charged by a will 
 or not ; ° and, indeed, wherever the land of the decedent is to be 
 affected by any proceeding," as where a devisee files a bill to redeem 
 a mortgage made by his devisor ; or where the purpose is to carry 
 into effect the trusts of a will for raising portions ; ' or when an 
 annuity is to be charged on the land,* the heir should be made a 
 party. 
 
 •Story'sEq. PI., §286. 
 
 ' Brinkerhoff et als v. Brown ei cds, 6 Johns. Chy. E. 139; Nulton el ats v. 
 Isaacs el als, 30 Grat. 726. 
 
 * Billups V. Sears el als, 5 Grat. 31. 
 
 * Story's Eq. PI., ? 163; Spencer & Miller v. Lee et als, 19 W. Va. 179. 
 ' Story's Eq. PL, §176. 
 
 « Daniel's Chy. Pr., Vol. 1, p. 262. See also Code, § 2668; Code W. Va., Ch. 
 86, § 2. 
 'Daniel's Chy. Pr., Vol. 1, p. 231. 
 
 * Story's Eq. PL, § 181. Even where a judgment has been obtained against an 
 executor or administrator the debt must be proved de now in a proceeding to which 
 the heir is a party, for the judgment is not evidence against him. Dorsey v. Ham- 
 mond, 1 Bland. 463. 'But prima facie evidence against heir mider Virginia statute. 
 Code, § 2668. 
 
§ 54 HEIBS AS PARTIES. 203 
 
 The heir is a necessary party if the proceeding be to prove a 
 will, or for a claim to dower, or to reverse a decree binding both 
 real estate and personal property, or to foreclose a mortgage,^ or to 
 establish and settle an account for which the heir may be bound,^' 
 or to suits for specific performance by and against a vendor or 
 vendee where either or both are dead.^ 
 
 Where a judgment creditor sued to subject land in the hands of 
 a bona fide purchaser for value from the vendor, and the purchaser 
 died pending the suit, his heirs were held to.be necessary parties ;■* 
 and where the suit was by the administrator of the vendor to sub- 
 ject land to the payment of a balance of purchase money, the heirs 
 of the vendor were held to be necessary parties.* 
 
 Where the bill is to marshal assets, including real estate, and 
 for their administration, the heirs and devisees should be made 
 parties, as well as all the creditors.^ 
 
 Where a feme covert was entitled to the proceeds of land, and a 
 bill was filed by her and her husband to discharge the executor 
 from the necessity of selling the land, and for the purpose of taking 
 it herself, and pending the suit the wife died, the court thought the 
 heirs of the wife ought to to be made parties f and it is well set- 
 tled that a claim for debt against the estate of a deceased person, 
 in order to bind the real estate, must be established against the 
 heirs, and a judgment against an executor was not evidence against 
 an heir or devisee,* until by statute' it was made prima facie 
 evidence. 
 
 > Daniel's Chy. Pr., Vol. 1, p. 193. = Calvert on Parties, 162 to 171. 
 
 ' Story's Eq. PI., §§ 160, 177. * Taylor's Adm'rs etah v. Spindle, 2 Grat. 44. 
 
 5 Mott V. Carter's Adm'r, 26 Grat. 127. 
 
 * Sthphenson v. Taverners, 9 Grat. 398. The heirs cannot sue upon a covenant 
 against incumbrances upon real estate broken during the life of the person under 
 whom they claim the estate; but the administrator is the proper party plaintiff. 
 Frink v. Bellis el al, 33 Ind. 135; 5 Am. E. 193. 
 
 ' Tazewell and others v. Smith's Adm'r, 1 Band. 313. 
 
 * Street's Heirs v. Street, 11 Leigh, 498; Pugh el al v. Kussell el ah, 27 Grat. 789. 
 » Code, § 2668. See Code W. Va., 1891, Ch. 139, I 5, and cases cited wherem 
 
 it is held that a judgment against an administrator is not a* lien on the real estate 
 of the intestate. 
 
204 PAETIES TO SUITS IN EQUITY. § 55 
 
 Husband and Wife. 
 
 § 55. The general rule is, that a married woman cannot sue ex- 
 *cept jointly with her husband, although where the husband and 
 wife sue in right of the wife, it is regarded as the bill of the hus- 
 band, and the wife is only joined for conformity.^ There are some 
 exceptions to the general rule that apply to actions at law, as in 
 case the husband is convicted of a felony, &c. ; but there are others 
 that exist solely in courts of equity. Thus, if a married woman 
 claims some right in opposition to those of her husband, she may, 
 by her next friend,^ maintain a suit against him ; but this can only 
 be with her consent. So the husband may sue the wife for the 
 purpose of enforcing his marital rights against her property. And 
 it has been held that a wife might sue her attorney who had col- 
 lected her claim for alimony from a husband who had deserted her, 
 and left the commonwealth, without making her husband a party 
 to the suit.^ 
 
 Where the wife had a separate estate, she is, and was even before 
 the statute, as to it a feme sole ; but then where suits related to 
 that estate, it was laid down that the husband was always properly 
 and sometimes necessarily a f)arty to the suit.* 
 
 This subject is now provided for by statute in Virginia,' and 
 while the equitable separate estate is preserved with all the rules 
 which relate to it, yet all personal and real estate owned by any 
 woman marrying after the date of May 1, 1888, or all estate which 
 any married woman has acquired since that date,^ constitutes her 
 
 ' Harrison ei oh v. Gibson et als, 23 Grat. 212. But a deserted wife may sue 
 alone. Phelps v. Walther, 78 Mo. 320; 42 Am. E. 112; Am. & Bng. Enoy. of 
 Law, Vol. 9, p. 810, note. 
 
 ' In her own name if she be adult. Act March 3, 1898, Acts 1897-8, p. 744. 
 
 s Spencer v. Ford, 1 Eob. 684. 
 
 * Story's Equity Pleading, § 61 to J 64. 
 
 s Code, i 2284 to i 2298. See 1 Barton's Law Practice, § 66; 2 7d., § 1044, and 
 note; Gentry v. Gentry, 87 Va. 478; Va. Coal & Iron Co. v. Koberson and Wife, 
 88 Va. 116. Post, Vol. 2, i 325. 
 
 « So, also, as to property acquired by a married woman under act of April 4, 1877 
 (Acts 1876-7, Ch. 329). Williams et cds v. Lord & Kobinson et cUs, 75 Va. 390. 
 
§ 55 HUSBAND AND WIFE. 205 
 
 separate estate, and as to all such estate, and as to all matters re- 
 lating to it, and as to all contracts made or incurred before her 
 marriage, she may sue and be sued as if she were unmarried. 
 
 The statute of West Virginia may be said now to be almost, if , 
 not quite, as liberal in this respect as the statute of Virginia. 
 
 By section 13 of the act of February 16, 1893 (Acts 1893, p. 
 6), it is provided that a married woman may sue and be sued with- 
 out joining her husband in the following cases : 
 
 I. Where the action or suit concerns her separate property. 
 II. Where the action or suit is between herself and her husband. 
 
 III. In all cases where she is living separate and apart from her 
 husband, or where her husband is non compos mentis, and in no 
 case need she prosecute or defend by guardian or next friend unless 
 she be an infant. 
 
 But by section 15 of the same act it is further provided that a 
 married woman may sue and be sued in any court of law or 
 chancery in the State, having jurisdiction otherwise, just as if she 
 was a feme sole, and that any judgment rendei'ed against her in any 
 such suit shall be a lien against the corpus of her separate real 
 estate. In such case execution may issue on the judgment and be 
 collected from her separate personal property as though she was a 
 feme sole. 
 
 This provision of the statute is held to greatly enlarge the 
 capacity of a married woman to sue and her liability to be sued on 
 contracts made since the date of the statute.^ 
 
 When the .bill is against a married woman who is an executrix 
 or administratrix, her husband must also be a party ; ^ and where 
 
 1 Williamson v. Cline, 40 W. Va. 195. See, also, 1 Bart. Law Pr., p. 229 to 
 239; Tufts v. Coper, 37 W. Va. 623; Hogg v. Dowes, 36 "W. Va. 200; Trapnall 
 V. Conklyn, 37 W. Va. 242, Bennett v. Bennett, 37 W. Va. 396. For the statute 
 of West Virginia relating to the property rights of married women and their lia- 
 hility on contracts, see Post, Vol. 2, I 325, Div. E. 
 
 ^ Daniel' s Chancery Practice, Vol. 1, p. 253. At least this was formerly the 
 rule, but it is thought that it is now abrogated in Virginia. See Ante, i 40, p. 
 164, note 3. 
 
206 PARTIES TO SUITS IN EQUITY. § 55 
 
 a man had married an administratrix, and a decree had been ob- 
 tained against the husband and wife for a sum of money to be 
 paid out of the estate of the intestate, and then the wife died, it 
 was deemed essential, in a bill to revive, that the administrator of 
 the wife should be a party to the suit.' 
 
 In cases not covered by the statute a bill to recover a legacy or 
 distributive share to which the wife is entitled should be filed in 
 the names of husband and wife ; ^ and if the husband dies pending 
 the suit, it will be sufficient to suggest his death on the record, and 
 then the cause will proceed in the name of the wife.* 
 
 Where the wife died, living the husband, and then the husband 
 died without administering on the estate of the wife, it was held 
 that the husband's representative was entitled to the wife's per- 
 sonal estate, and might bring a suit to recover it.* 
 
 In Templeman v. Fauntleroy, 3 Rand. 439, it was intimated 
 that the executor of the husband, who had not administered, might 
 sue in equity for a debt due from the guardian of the wife, if it 
 appeared that she had married in her infancy, and there was no 
 suggestion of her having contracted debts. A husband of a dis- 
 tributee who was also one of the personal representatives, and the 
 guardian of the other distributee, filed a bill in his own name as 
 guardian of the infant distributee against the other personal rep- 
 resentative and the sureties, and it was held that the wife of the 
 complainant, and also the widow and child of the decedent, were 
 proper parties.' 
 
 Where one was administrator of both the husband and the wife, 
 and it was doubtful in which of them the right to the fund was, 
 
 ' Lomax on Executors, Vol. 2, p. 798-815. 
 
 ^ Schuyler v. Hoyle, 5 Johns. Chy. E. 210. 
 
 ' McDowl and Wife v. Chades, 6 Johns. Chy. E. 132; Stewart v. Stewart, 7 
 Johns. Chy. E. 229. See also Chichestys Ex'x v. Vass' Adm'r, 1 Munf. 115; and 
 Templeman v. Fauntleroy, 3 Kand. 439. 
 
 * Elliott V. CoUins, 3 Atk. 526; Humphrey v. Buller, 1 Atk. 458. 
 
 * Silling et als v. Bumgardner, 9 Grat. 274. 
 
§ 56 INJUNCTIONS. 207 
 
 he sued in both characters, and the bill was held not demurrable 
 for misjoinder of parties.^ 
 
 In a suit for partition of certain dower lands, one of the children 
 (a partitioner) died after the death of the widow, leaving children ; 
 her husband was considered a proper party plaintiff for a division 
 of the land.^ 
 
 As the statute' does not deprive a husband of his right to 
 curtesy, if the suit involve the lands of the wife, in cases in which 
 such a right exists, the husband should be made a party to the 
 suit. 
 
 Injunctions. 
 
 § 56. The common rule with regard to injunctions is, that they 
 will not be granted to restrain a person who is not a party to the 
 suit,* but whether granted in a pending cause or not, the person 
 whose action is sought to be restrained must become a party to the 
 bill or petition upon which the application is based. Just as in 
 other cases of numerous parties, it is competent to one or more 
 persons, on behalf of themselves and all persons having the same 
 interests to obtain an injunction for the protection of property, or 
 to prevent waste pending litigation." The same right has been 
 maintained in favor of the inhabitants of a district of a county, to 
 restrain the enforcement of an unconstitutional act, in behalf of 
 themselves and the other inhabitants similarly situated, seeking 
 relief to which they all in common were justly entitled, although 
 their individual interests were several and distinct ; * and also in 
 behalf of the owners of several vessels not having a common in- 
 terest in all the vessels, to enjoin a proceeding for the sale of all 
 
 ' Brent v. Washington's Adm'r, 18 Grat. 526. 
 
 ' Persinger etah v. Simmons el als, 25 Grat. 238. On the subject of this section 
 see, also, Eobinson v. Shacklett, 29 Grat. 99; and Wyatt v. Simpson, 8 W. Va. 394. 
 
 'Code, ? 2286; Code W. Va., Ch. 65, U 15, 16- 
 
 * Calvert on Parties, 90; High on Injunctions, § 746 to ? 760; Eobertson v. Tap- 
 Bcott's Adm'r, 81 Va. 549. 
 
 ^ Daniel's Chancery Practice, Vol. 1, p. 245. 
 
 « Bull ei ah v. Eead et at, 13 Grat. 86. 
 
208 PAKTIES TO SUITS IN EQUITY. § 57 
 
 the vessels under the provisions of the same law, the unconstitu- 
 tionality of which was claimed by the bill.^ 
 
 The officer who executed a process which was sought to be en- 
 joined, as well as the person at whose instance it is sued out, was 
 regarded as necessary to be made a party to a bill of injunction ; ^ 
 and where the object of the bill was to prevent the issuing of a 
 patent by the register of the land office, such register was declared 
 to be a proper party, in order to effectuate the relief that was to be 
 decreed.' 
 
 Interpleader. 
 
 § 57. A bill of interpleader must be by one holding or con- 
 trolling a fund to which he lays no claim of ownership, but about 
 which there is or may be a controversy between other people, 
 whereby it is left in doubt to whom the money or other thing 
 should be paid. The plaintiff in such a bill must be one who can 
 show that he occupies this position:'' Hence, a tenant liable to pay 
 rent has been held to be a proper party to interplead between con- 
 flicting claimants to the land." The defendants must be persons 
 in esse, and capable of interpleading." 
 
 The party seeking the interpleader must be in danger of having 
 to discharge his liability at least twice over, and the criterion of 
 the right to file the bill is that there must be some reasonable 
 doubt or risk arising from conflicting claims.^ All the defendants 
 to the suit must be claiming the same thing, debt or duty adversely 
 to each other ; the complainant must be ignorant or in doubt as 
 to the validity of their respective claims ; he must not have 
 acknowledged the title of either claimant and must claim no 
 
 ^ Johnson et ah. v. Drummond, &c., 20 Grat. 419. See, also, Ante, ? 47. 
 ^ Spotswood V. Higgenbotham, 6 Munf. 313. But this is not true as a general , 
 rule. High on Injunctions, 5 750. 
 ' Lyne v. Jackson, &c., 1 Eand. 119. 
 
 * Story's Equity Pleading, | 292. 
 
 * Story's Equity Pleading, I 294. 
 "Story's Equity Pleading, I 295. 
 
§ 58 JOINT INTERESTS AND OBLIGATIONS. 209 
 
 interest in the matter itself.' The proceeding may be either by a 
 bill in equity, or when the statute so provides, in the way fixed 
 by law.'' 
 
 The statute of Virginia provides' that upon affidavit of a de- 
 fendant in any action that he claims no interest in the subject- 
 matter of the suit, but that some third party has a claim thereto, 
 and that he does not collude with such third party, but is ready to 
 pay or dispose of the subject-matter of the action as the court may 
 direct, the court may make an order requiring such third party to 
 appear and state the nature of his claim, and maintain or relin- 
 quish it, and in the meantime stay the proceedings in such actions. 
 
 Although the plaintiff in a bill of interpleader disclaims all in- 
 terest in the controversy between the defendants, and although in 
 that view he may be considered as merely a formal party, yet he 
 cannot withdraw from the suit until he has fully rendered the 
 debt, duty, or other thing required of him ; and until this is all 
 performed he remains a necessary party.* 
 
 Joint Interests and Obligations. 
 
 § 58. The general rule with regard to suits involving joint in- 
 terests, joint obligations, claims and duties, is, that all the joint 
 owners, joint contractors, and other persons having a community 
 of interest in duties, claims, or liabilities, who may be affected by 
 the decree, should be made parties ; ^ and this involves sureties," 
 joint tenants, tenants in common, and remaindermen for life, and 
 in fee against a tenant for life or years to restrain waste ; ' part- 
 ners ; part owners of property ; joint, and joint and several obli- 
 
 ' Am. & Eng. Encyc. of Law, Vol. 11, p. 499 and note. 
 'Id., p. 502. 
 
 " § 2998. The corresponding provision of the Code of West Virginia is in § 1, 
 Ch. 107. 
 * George et als v. Pilcher ei als, 28 Grat. 305. 
 5 i 3292 ; Code W. Va., Ch. 125, § 51. 
 «Lomax on Ex'ors, Vol. 2, p. 800. 
 ' Story's Eq. PL, ^59. 
 14 
 
210 PAETIES TO SUITS IN EQUITY. § 58 
 
 gors/ and the representatives of such as are dead;^ and joint 
 trustees.' 
 
 An exception to the rule is said to exist in some cases if some 
 of the obligors are only sureties, iu which case it is held that the 
 principal debtor cannot object that they or their personal repre- 
 sentatives have not been made parties to the suit ; * and the same 
 has been held of the representative of a deceased co-debtor, where 
 it plainly appeared that there were no personal assets of that 
 debtor.^ * 
 
 All the sureties, or their representatives, in the official bond of 
 an executor,* and the representatives of a deceased partner, are 
 proper parties to a suit against the executor, or against the part- 
 nership, for a debt incurred during the lifetime of the deceased 
 partner.^ 
 
 Where a judgment at law was obtained against one of two 
 obligors in a joint and several bond, and there was no proceeding 
 to enforce it, it was held that a court of equity ought not to charge 
 the lands of the other obligor in possession of his devisees, without 
 having made the obligor against whom the judgment was rendered, 
 or his representatives, parties to the suit.' 
 
 ' Daniel's Chy. Pr., Vol. 1, p. 266, 267. 
 
 ' Calvert on Parties, 234; 2 Daniel's Chy. Pr. 269, 271; Story's Eq. PI., ? 166 
 to § 170. 
 
 ^ Ibid, I 210. Several creditors, having separate claims, cannot unite in one 
 suit in equity to attach the property of an absent debtor. Corrothers v. Sargent, 
 20 W. Va. 351. An absent joint obligor is none the less a necessary party to a 
 bm. White, Adm'r, v. Kennedy's Adm'r, 23 W. Va. 221. Unwilling plaintiffs (?) 
 may be made defendants. Am. & Eng. Encyc. Law, Vol. 17, p. 592, and notes. 
 
 *Lomax on Ex'ors, Vol. 2, p. 799. So where two of three obligors in a bond 
 were dead insolvent, and there was no personal representative of either of them, 
 the obligee, who came into equity to enforce payment of the debt against the per- 
 sonal representative of the other obligor, was held not bound to have a personal 
 representative of the deceased insolvent obligor appointed and made a party, and 
 this especially where the defendant did not by his answer, or in any mode of plead- 
 ing, object to the failure to make him a party. Montague's Ex'x v. Turpin's 
 Adm'x, 8 Grat. 453. 
 
 5 Lomax on Ex'ors, Vol. 2, p. 800. « Payne v. Hook, 7 "Wall. 425. 
 
 ' Hutcherson v. Pigg, 8 Grat. 220. 
 
 * Foster and Wife et als v. Crenshaw, &c., 3 Munf. 514. 
 
§ 59 NEW PARTIES. 211 
 
 Where the surety in a bond removed from the country, leaving 
 the principal within it, it was held that the obligee might proceed 
 against the surety as an absent defendant, and attach his effects ; 
 but if the obligee had parted with any security he may have had 
 in his hands, by which the debt, or a part of it, might have been 
 paid, the surety would be discharged pro tanto, and in such case the 
 principal should be brought before the court before a decree can 
 be had against the surety.^ 
 
 New Parties. 
 
 § 59. We have already noted, under the head of change of 
 parties by death, &c.,^ that there are various circumstances under 
 which it may be proper or necessary to bring into the suit as parties 
 persons in whom, by peason of something which has happened since 
 the commencement of the suit, an interest has vested that did not 
 exist when the suit was begun. We shall presently discuss the 
 effect of a decision by the court that persons proper to have been 
 made parties to the proceeding are not before the court.' It is 
 only designed here to call attention to some of the decided causes 
 upon this subject of new parties. 
 
 After a case has gone to the court of appeals and has come back 
 to the lower court it is competent then for that court to have new 
 persons brought in before it as parties ; ^ and where a person who 
 was not made a party to the original suit finds it necessary to come 
 in and file an amended bill, he may do so, and the fact that he 
 was not named in the priginal bill is not a sufficient objection.' 
 
 ^ Loop V. Summers, 3 Kand. 511. So also where the creditor has released or com- 
 pounded with the principal dehtor upon a valid consideration. Orbemdorf v. U. 
 Bank of Balto., 31 Md. 126; 1 Am. E. 31; Taylor v. Short, Adm'r, 27 Iowa, 361; 
 1 Am. E. 280. 
 
 ' Ante, this chapter, J 45. 
 
 3 This chapter, Post, I 77. 
 
 * Claiborne v. Gross and others, 7 Leigh, 331. 
 
 * Cofiina,n v. Sangston et ah, 21 Grat. 269. After a term of court at which a 
 decree was entered, persons hitherto not parties to the suit and who alleged neither 
 error of law in the decree or after-discovered evidence, were allowed to file a bill 
 
212 PARTIES TO SUITS IN EQUITY. § 60 
 
 When a change of parties is caused in a suit by death, marriage, 
 &c., it is provided by statute,^ that any such new party (except in 
 the appellate court) may have a continuance of the case at the term 
 at which such order is entered, and the court may allow 'him to 
 plead anew, or amend the pleading so far as it deems reasonable ; 
 but in other respects the case shall proceed to final judgment or 
 decree, for or against him, in like manner as if the case had been 
 pending for or against him before scire facias or motion ; and 
 whenever new parties are made both parties have liberty, if they 
 desire it, to amend and modify their pleadings so as to exhibit the 
 case as they may desire respectively to present it.^ 
 
 Numerous Parties. 
 
 § 60. The mere numerousness of persons in interest will some- 
 times, as has already been noticed, dispense ^vith the necessity of 
 making them parties ; but this is only where it can be done with- 
 out injury to the persons not actually before the court ; for while 
 the rule prevails that a person whose interest is to be affected 
 must be a party to the cause, yet, since to carry out this rule to 
 the extent of literally summoning each individual might sometimes 
 
 for a rehearing of the decree, and this was held to be error. Eoanoke Nat. Bank 
 V. Farmers Nat. Bank of Salem, 84 Va. 603. But whatever may have been meant 
 by the decision, it is none the less true that a person not a party to the suit, but 
 whose interest may in some way have been affected by the proceedings had therein, 
 may come in by petition to be made a party and may then ask a rehearing of a 
 former decree. Armistead v. Bailey, 83 Va. 245. See, also, Crumlish' s Adm' r v. 
 Shen. Valley E,. K. Co., 40 W. Va. 627. A person so coming in is in no sense 
 bound by the technical rules of error apparent on the face, after-discovered evi- 
 dence, &c. He comes in because he has an interest, and should have been made a 
 party to the suit, and without whose presence it was error to have proceeded. But 
 this rule does not let in assignees, whose interests are abeady represented. Armistead 
 V. Bailey, 83 Va. 245; Gibson and Wife v. Green's Adm'r, 89 Va. 524. 
 
 ' I 3308; Code W. Va., Ch. 127, ? 4. If, however, a case is revived at rules 
 under ? 3309, its revival is no ground for a continuance. Stearnes' Ex' or v. Eich- 
 mond Paper Co., 86 Va. 1034. 
 
 2 Dabney v. Preston's Adm'r, 25 Grat. 838; see, also, Ilrtonu Hunter, Harris & 
 Co., 2 W. Va. 83; Kuhn, Netter & Co. v. Hunter, Harris & Co., 4 W. Va. 186; 
 I 3308; Code W. Va., Ch. 127, I 4. 
 
§ 61 PARTITIONS. 213 
 
 amount to a practical obstruction to justice, they will be regarded 
 as sufficiently before the court, when either the decree does not di- 
 rectly affect them ; when they are represented by others similarly 
 situated ; or when the suit is of such character that an opportunity 
 is given them to answer. In all such cases the bill should allege, 
 unless it is otherwise apparent upon its face, that the parties are 
 too numerous to make it practicable, even if they were known, to 
 prosecute the suit if all are made parties ; and the bill should be 
 drawn in behalf of the plaintiff or plaintiffs, and all other persons 
 interested. It has been held,' however, that a bill having this 
 general object, but not exactly adhering to these formalities, may 
 be regarded as substantially within the rule. 
 
 The instances in which bills of this kind may be filed are 
 treated under separate heads in this chapter ; but they may be 
 generally classified as cases of voluntary associations, persons pos- 
 sessing a common interest, crews of vessels,^ creditor's bills, bills 
 to foreclose trusts, bills by legatees or for the distribution of an 
 estate, bills by or against shareholders of corporations, bills by the 
 inhabitants of a city, town or district,^ bills by partners in certain 
 cases, and other like instances.* 
 
 Partitions. 
 
 § 61. The statute of Virginia" provides, that partition may be 
 compelled between tenants in common, joint tenants, and copar- 
 
 ' Duerson's Adm'r v. Alsop et als, 27 Grat. 229. 
 
 ^ Johnson et als v. Drummond, 20 Grat. 419; Blanton, Conun., v. Southern Fer- 
 tilizer Co. et ah., 77 Va. 335. 
 
 'Bull etais. v. Bead et al, 13 Grat. 87; McClung v. Livesay, 7 W. Va. 329; 
 Doonan v. Board of Education, 9 W. Va. 246. 
 
 'Stor/s Eq. PI., I 94 to ?i 126; Daniel's Chy. Pr., Vol. 1, pp. 218, 219-242, 
 256-272; Calvert on Parties, pp. 30, 42, 46; Eeynolds v. Bank, 6 Grat. 174; 
 McClung V. Livesay, 7 W. Va. 329; Doonan v. Board of Education, 9 W.Va. 246. 
 
 ^ § 2562 to § 2569, changing the former law so as to confine jurisdiction to the 
 circuit and corporation courts; making a decree in partition both prospectively and 
 retrospectively operate as a conveyance of title {BoUing v. Teel, 76 Va. 487), and 
 making the proceeds of a sale personalty from the. time of the confirmation of such 
 sale by the court. Tanner v. Dawson, 80 Va. 841. The corresponding statute of 
 West Virginia is in Ch. 79 of the Code. 
 
214 PARTIES TO SUITS IN EQUITY. § 61 
 
 ceners, even though some of them are infants, insane, married 
 women, or unknown persons ; and power is given to the court to 
 take cognizance of all questions of law affecting the legal title that 
 may arise in the proceeding, and for the protection of the interests 
 of the creditors of any deceased person who was a tenant in com- 
 mon, a joint tenant, or a coparcener. It is further prescribed that 
 any person who, before the partition or sale, was lessee of any of 
 the land divided or sold, shall hold the same of him to Avhom such 
 land is allotted or sold, on the same terms on which by his lease 
 he held it before the partition. 
 
 The matters that may arise or are to be determined in any such 
 proceeding will suggest the persons who are necessary parties, 
 according as their interests may or may not be affected thereby ; 
 and while the statute in terms only provides that the court shall 
 protect the interests of creditors of deceased tenants in common, 
 joint tenants and coparceners, and although creditors may not be 
 made parties in that character merely,^ yet when it appears, or is 
 made to appear, that there are liens by judgment, deed of trust or 
 other right upon the shares of any such persons, the ends of justice 
 may require that the creditors be brought before the court, and the 
 liens ascertained before there is any decree for sale or partition.^ 
 As in other cases, the heirs or devisees, where a share is devised 
 or charged with the payment of a legacy, are proper parties ; and 
 
 'Agan V. Fairfax, 17 Ves. 544; see also Post, § 98; Stevens v. McCormick, 90 
 Va. 735. But now by statute (Code, § 2562 as amended by act of February 23, 
 1898, Acts 1897-8, p. 488) it is provided that a lien creditor or any owner of un- 
 divided estate in real estate may also compel partition for the purpose of subjecting 
 the estate of his debtor or the rents and profits thereof to the satisfaction of his lien. 
 
 ^ A judgment in partition in a. suit by a tenant against his co-tenant who has 
 mortgaged his interest, is not binding on the mortgagees not parties to the suit. 
 Colton V. Smith, 11 Pickering, 311; 22 Am. Dec. 375. Before ordering a sale in 
 partition the court should ascertain the interests of the respective parties (Stevens 
 V. McCormick, 90 Va. 735), and it has jurisdiction to take cognizance of all ques- 
 tions of law affecting the legal title that may arise in any proceeding. Bradley et 
 als V. Zehman et als, 82 Va. 685. • As to the effect of a judgment in partition, see 
 Nicely tJ. Boyles, 4 Humphreys, : 177 ; 40 Am. Dec. 638; note, p. 640 to 642; Am. 
 & Eng. Eneyc. of Law, Vol. 17, p. 817. 
 
§ 62 PARTNERSHIP SUITS. 215 
 
 the rules in these cases do not appear to differ from other suits where 
 land is sought to be sold, or to be subjected to the payment of debts. 
 
 The statute does not declare that the proceeding for a partition 
 shall be by bill ; and although it is usually instituted in that way, 
 yet it may be by petition or motion, and the parties being sum- 
 moned, the e\ddence may be heard in court, and the necessary 
 order made.^ 
 
 It is not necessary to summon the infant owners in such a pro- 
 ceeding, but the court may appoint a guardian ad litem to defend 
 them ; ^ and where the suit was for partition of an estate in which 
 a widow had a life estate, it was not considered necessary to make 
 her a party, for the partition might be among the heirs subject to 
 her rights ; ^ but in a much later case,* where the bill alleged that 
 the widow of the deceased ancestor had married again, and prayed 
 for partition of the land subject to the widow's estate in dower, 
 the court decided that the lady who had been a widow and her 
 then husband were necessary parties. 
 
 Partnership Suits. 
 
 § 62. As in similar cases where the parties are too numerous to 
 be brought before the court, partners in a firm composed of a large 
 number of persons have been allowed to file a bill, in behalf of 
 themselves and all the other partners, to rescind a contract ; ' but 
 the general rule is, that wherever a suit is brought by or against 
 partners, or for a partnership account, all of them must be joined 
 in the suit, either as plaintiffs or defendants.* 
 
 ' Parker et als v. McCoy et aJs, 10 Grat. 594. 
 ^ Parker et ah v. McCoy et als, 10 Grat. 594. 
 3 McClintic et als v. Manns, 4 Munf. 328. 
 
 * Custis V. Snead et als, 12 Grat. 264. 
 
 * Story's Eq. PL, § 115. I'his proposition is denied in 1 Daniel's Chy. Pr., p. 
 243, and authorities cited in the notes, where the object of the suit is a dissolution 
 of the partnership, and in Calvert on Parties, p. 261. 
 
 « Story's Eq. PI., ^ 167; Waggoner v. Gray's Adm'rs, 2 H. & M. 603. A for- 
 mer partner is not a necessary party to a suit between partners for an account, 
 when he has sold out all interest in the firm. Howell v. Harvey, 5 Ark. 270; 39 
 Am. Deo. 376. 
 
216 PARTIES TO StriTS IN EQUITY. § 62 
 
 If a partner dies, and a bill be filed against his personal repre- 
 sentatives for a joint debt, the surviving partners should also be 
 made parties ; ^ and in such a suit, where the surviving partner 
 was made a party, and died pending the suit, it was held that it 
 should be revived against his executor or administrator.^ 
 
 The propriety of making the personal representative of the de- 
 ceased partner a party in such a case Avas at one time questioned, 
 but it is now well settled that such is the proper course ; and 
 where the creditor is pursuing the estate of a former member of 
 the firm who has died, as such a bill renders necessary an entire 
 account of the assets, the survivors should be made parties, for 
 they are interested to contest the demand of the plaintiff, and of 
 all other persons claiming to be joint creditors.^ 
 
 When any change in a firm has taken place, the parties to sue 
 or be sued are those who constituted the firm at the time at which 
 the claim or liability arose.* 
 
 Where a partnership suit was pending, and a member of the firm 
 instituted proceedings to have the firm declared bankrupt, and 
 assignees were appointed for the firm, and the day after, in another 
 State, the other member of the firm applied to the court for the 
 benefit of the bankrupt law for himself, was adjudicated a bank- 
 rupt on the same day, and an assignee was subsequently appointed 
 for him, it was held that not the last named assignee, nor the two 
 together, but the assignee of the firm, was declared to be the proper 
 person to be entered as plaintiff in the suit ; and the court thought 
 that the law was the same even if the proceedings in bankruptcy 
 had been commenced by both on the same day. Although not en- 
 tered as plaintiff, the regularly appointed assignee of the individual 
 member of the firm would have been a proper party to the suit.'' 
 
 1 Stor/s Eq. PI., ^ 167-178. 
 
 ^ Carter's Ex' or v. Currie, 5 Call. 158; Calvert on Parties, p. 27. 
 'Lomax on Executors, Vol. 2, p. 800; Jackson v. King's Personal Eepresenta- 
 tives, 8 Leigh, 689. See also Moore v. Huntington, 17 Wall. 417. 
 
 * Calvert on Parties, p. 261. 
 
 * Cannon et al v. Welford, Judge, 22 Grat. 195. 
 
§ 63 PERPETUATION OF TESTIMONY. 217 
 
 Perpetuation of Testimony. 
 
 § 63. A bill for the perpetuation of evidence lies only at the 
 suit of him who has some interest in the subject about which the 
 testimony is desired. A mere expectancy is not an interest suffi- 
 cient to maintain the bill ; ' hence it will not lie at the suit of an 
 heir or next of kin, no matter how probable it be that' their ex- 
 pectation will be realized. 
 
 The defendants must be those who have, or claim to have, some 
 interest in the subject ; and as it is essential that the bill should 
 fully disclose the whole subject about which the evidence is to be 
 given, it follows that those persons who are proper parties to the 
 proceeding upon the merits, should also be parties to the bill to 
 perpetuate the evidence. 
 
 The statute of Virginia ^ provides for the perpetuation of testi- 
 mony concerning a matter about which there is no suit, by filing 
 with a commissioner in chancery a petition, stating the matter and 
 the persons to be affected by the testimony ; and of his proceed- 
 ings upon this petition notice of the time and place should be given 
 to those persons. If any one of them be an infant or insane per- 
 son, the commissioner shall appoiut a guardian ad litem to attend 
 on his behalf. 
 
 Petitions for Rehearing, Bills of Review, &e. 
 
 § 64. A bill of review can only be filed by a person who was a 
 party or privy to the former suit,^ and such persons having an in- 
 terest in the cause, if not aggrieved by the particular errors 
 assigned in the decree, cannot maintain a bill of review, however 
 injuriously the decree may affect the rights of third persons.^ Nor 
 
 ^Stor/s Eq. PI., ? 301; Daniel's Chy. Pr., Vol. 2, p. 1572. 
 
 2 § 3369; Code W. Va.; Ch. 130, § 39. 
 
 ■''Thompson v. Maxwell, 95 U. S. K. 391; 2 Daniel's Chy. Pr. 1579; Webb ij. 
 PeU, 2 Page, 368. 
 
 * Story's Eq. PI., HOI; 2 Daniel's Chy. Pr., 1579, Thomas v. Harvey's Heirs, 
 10 Wheat. 146; Whiting v. Bank of TJ. S., 13 Peters, 6; Chancellor v. Spencer, 40 
 W. Va. 338; 21 S. E. B. 1012. 
 
218 PARTIES TO SUITS IN EQUITY. § 65 
 
 can it be filed by persons who cannot be benefited by the reversal 
 or modification of the former decree.' But the general rule is, 
 that all the parties to the original bill shall be made parties to the 
 bill of review.^ Such a bill does not lie for assignees.' 
 
 The same rules govern petitions for rehearing, but it is never- 
 theless competent to a person not a party to the former suit, but 
 whose interest may in some way have been affected by the pro- 
 ceedings had therein, to come in by petition to be made a party, 
 and then to ask a rehearing of a former decree.* 
 
 Pnndpal and Agent. 
 
 § 65. The general rule is that an agent having no personal in- 
 terest in a suit ought not to be made a party ; * for it has been 
 well said, that it would be absurd if a bill should lie against a 
 person who is only an officer and subordinate to others, and has 
 no directing power ; and if an agent institutes a suit under an 
 authority given to him by his principal, he must do so in the 
 name of the principal.* 
 
 An agent is sometimes a party to a suit brought by the princi- 
 pal, as, for instance, in a bill for specific performance, where the 
 contract was made in the agent's name, or if in his own name and 
 as agent for another. But even here he is not a necessary party 
 if the bill avers, and the evidence sustains it, that he only con- 
 tracted as agent for the complainant.'^ 
 
 ' Webb, &c. V. Pell, &c. , 3 Paige, 368 ; Dyckman, &c. v. Kernochan et ah, 2 
 Paige, 26; Wiser v. Blachley, &c., 2 Jobns. Chy. K. 492. On the subject of parties, 
 see also Nichols v. Heirs of Nichols, 8 W. Va. 174. 
 
 2 Bank of United States v. White, 8 Peters, 262; Heermans j). Montague, Va. ; 
 20 S. E. E. 902. 
 
 = 2 Smith's Chy. Pr. 49; 2 Daniel's Chy. Pr. 1627; Thompson j). Maxwell, 5 
 Otto, 397; Armisteadf. BaUey, 83 Va. 245; Gibson and Wife v. Green's Adm'r, 
 89 Va. 524. 
 
 * Armistead v. Bailey, 83 Va. 245. 
 
 ^Daniel's Chancery Practice, Vol. 1, p. 247-298. 
 
 " Calvert on Parties, 229 to 233. 
 
 ' Daniel's Chancery Practice, Vol. 1, pp. 195, 196, 296. Post, this chapter, § 71. 
 
§ 66 PURCHASEES. 219 
 
 An exception to the general rule has already been noticed ^ in 
 the case of officers of a corporation, who may be made defendants 
 to a bill of discovery. 
 
 Purchasers. 
 
 § 66. One who has purchased property from a person whose 
 claim to it is disputed, or for whose debt it is sought to be sub- 
 jected,^ has a positive interest in the suit, and must be made a 
 party thereto.^ Such a person is one by or against whom the 
 demand is asserted, in certain cases, in a bill for specific perform- 
 ance ; * and if the vendee be dead, to such a bill brought by the 
 vendor or his heirs, the heirs and the personal representative of 
 the vendee should be made parties.^ The same rule applies where 
 the bill is brought by heirs at law to set aside a conveyance made 
 by their ancestor, for fraud and .imposition.^ So also if the vendor 
 be dead, and the bill be filed by the heirs of the purchaser, both 
 the heirs and the personal representative of the vendor should be 
 made parties ; and this is true also when the object of the suit is 
 to enforce against the purchaser, liens or incumbrances upon the 
 land.^ 
 
 One who purchases pending a suit^ unless it be otherwise pro- 
 vided by statute,^ is treated as a purchaser with notice, is subject 
 
 ^ Ante, thia chapter, \ 48. 
 
 ^ Taylor's Adm'r et ah v. Spindle, 2 Grat. 44; Henderson v. Henderson's Ex'x, 
 9 Grat. 394. 
 
 * See also Noyes v. Hall, 7 Otto, 34. 
 
 * But on this subject see Post, this chapter, § 71. 
 5 Daniel's Chy. Pr., Vol. 1, p. 285. 
 ^Story'sEq. PI., ? 160. 
 
 ' Ibid., I 177. 
 
 * The statute of Virginia ( § 3566, corresponding provision of statute of West 
 Virginia, Code, Ch. 139, | 13) provides that "no lis pendens or attachment under 
 Chapter one hundred and forty-one, shall bind or affect a bona fide purchaser of 
 real estate, for valuable consideration, without actual notice of such lis pendens or 
 attachment, unless and until a memorandum" * * * containing the provisions 
 required by the statute, is left with the clerk of the court of the county or corpo- 
 ration in which the land is situated, and who is required to record and index the 
 same. See Post, Vol. 2, § 324. 
 
220 PARTIES TO SUITS IN EQUITY. § 66 
 
 to all the equities of the person under whouj he claims in privity, 
 and except where otherwise provided by statute, being bound by 
 the decree,^ need not be made a party to the suit ; ^ but it is Other- 
 wise where the assignment is by operation of law, as in cases of 
 bankruptcy,' or where the purchase is of negotiable securities.^ 
 
 It is freqently important, however, for the purpose of clearing 
 a title or preventing further litigation to have a, pendente lite pur- 
 chaser before the court, and in such cases he may be brought in or 
 not at the option of the plaintiff.'* 
 
 Even where persons purchasing pendente lite claim that by the 
 purchase they have acquired such an interest as prevents the dis- 
 position of the suit without their presence, if they wish to be re- 
 garded in the determination of the suit they must bring the mat- 
 ter to the notice of the court by petition ; otherwise, they are not 
 necessary parties.^ 
 
 A person who acquires an interest in the subject of the suit by 
 assignment, may, if he pleases, make himself a party by supple- 
 mental bill ; but it has been held that he cannot by petition be 
 permitted to come in as a party d^fendant.^ 
 
 Where the proceeding is to subject land in the possession of a 
 purchaser with notice, to an equitable lien, the representatives of 
 the person under whom the purchaser claims are necessary parties 
 to the STiit.' 
 
 1 See also Post, I 324. 
 
 ^ Daniel's Chj. Pr., Vol. 1, p. 280, note; Goddin v. Vaughn's Ex'x et ah, 14 
 Grat. 102; Story' sEq. PI., I 156-351; Story's Equity Jurisprudence, | 406; Har- 
 mon I'. Byram's Adm'r et al, 11 W. Va. 511; Shumate v. Crockett, W. Va.; 27 
 S. E. E. 240. 
 
 ^Sedgwick v. Cleveland, 7 Paige, 288; Deas v. Thorne, 3 Johns. 543; Story's 
 Eq. PL, § 342-851. 
 
 * County of Warren v. Marcy, 7 Otto, 96. 
 
 s Story's Eq. PI., ? 156-351; Calvert on Parties, 101. 
 
 ^ Price V. Thrash, 30 Grat. 529. This rule is applicable to an assignment in 
 bankruptcy pending a suit. Bar, Assignee, v. White et ah, 30 Grat. 543; Eyster 
 V. Graff eiaJs, 1 Otto, 521. 
 
 'Daniel's Chancery Practice, Vol. 1, p. 281. 
 
 ^Lomax on Ex'ors, Vol. 2, p. 798. 
 
§ 66 PURCHASERS. 221 
 
 When the suit is between the vendor and purchaser, as for spe- 
 cific performance of a contract, the general rule is, that it is only 
 necessary to make parties those persons who are parties to the con- 
 tract. We have already seen,^ however, that in certain cases an 
 agent may be a proper party, and where one contracts for the 
 benefit of another, the contracting person should be made a party, 
 as well as him who is beneficially interested.^ 
 
 Where the purchaser has assigned his interest, and the assignee 
 has been accepted by the vendor, the ' purchaser is not a necessary 
 party, although it is otherwise if he has not been accepted.' But 
 on a bill by a purchaser against the vendor, incumbrancers have 
 been held to be necessary parties.* 
 
 Where the suit was to recover a tract of land against a vendee, 
 on the ground that the vendor had previously agreed to convey 
 the same land in a certain event to the plaintiff, it was thought that 
 the vendor or his representatives ought to be parties ; ^ but where 
 one having the equitable title sued for the legal title, it was held 
 that the person holding the legal title was a sufficient defendant, 
 without bringing the vendor before the court." 
 
 Land was conveyed to a creditor in trust to satisfy his own de- 
 mand ; the creditor sold the land, and the grantor filed a bill in 
 equity for relief. To this suit the purchaser was held to be a 
 necessary party ; ^ but such a conveyance was regarded as a mort- 
 gage and not a deed of trust, and hence that the right of redemp- 
 tion was incident to it.^ 
 
 Where two persons purchased land together, and one of them 
 filed a bill against the vendor for relief against a judgment ren- 
 
 1 Ante, this chapter, I 65. 
 
 2 Calvert on Parties, p. ^91. 
 
 3 Dnval et als v. Bibb, 3 Call. 362. 
 
 * Calvert on Parties, p. 292-294. 
 
 * Lewis V. Madisons, 1 Munf. 303. 
 « Mayo V. Munchie, 3 Munf. 358. 
 
 ' Chowning v. Cox et al, 1 Eand. 306. 
 
 * But on this point see also Floyd v. Harrison et als, 2 Bob. E. 170, and Breck- 
 inridge V. Auld el als, 1 Eob. K. 157. 
 
222 PAETIES TO SUITS IN EQUITY. § 66 
 
 dered on the purchase-money bond, because of a deficiency in the 
 quantity of land, the representatives of the other vendee, who had 
 died, were held to be necessary parties.^ 
 
 Where land had been sold under a decree of the United States 
 courts, and a bill was afterwards filed in the State court against 
 the heirs of a deceased former owner to subject the land to pay- 
 ment of his debts, it was held to be error to order a sale without 
 making the purchasers under the decree of the United States court 
 parties.^ 
 
 We have before noticed ' that purchasers imder decrees of court 
 seem to be universally regarded as parties to the suit under whose 
 decrees they purchased ; but unless they are already otherwise 
 parties, the mere fact of their being purchasers does not bring 
 them sufficiently before the court to make it proper for a decree 
 affecting their interests to be rendered without any further notice 
 to them.* 
 
 The proper method for the accomplishment of this purpose is 
 to issue a rule against the purchaser, and upon its return to make 
 such orders as appear proper in the premises.^ 
 
 A distinction has been taken between the right to such a pro- 
 ceeding in cases where the purchaser has failed to comply with the 
 terms of sale and one in which he has complied to the extent of 
 executing his bonds and yet has failed to pay them ; it being con- 
 tended in the latter case that as an action at law will lie on the 
 
 ' Crawford et cd v. McDaniel, 1 Eob. R. 474. 
 
 ^ King, Adm'r, &c. v. Ashley, 5 Leigh, 408. 
 
 => Ante, this chapter, § 42; Word v. Mann, 3 Sumner's E. 318; Bequa v. Eea, 2 
 Paige's R. 341. 
 
 *Londons v. Echols e( ah, 17 Grat. 19; Pierce's Adm'r v. Trigg's Heirs, 10 
 Leigh, 406; Parker v. McCoy, 10 Grat. 594; Hughes'and Wife v. Johnston, 12 
 Grat. 479; Huston' s Adm' r v. Cantrill, 11 Leigh, 136; Cocke's Adm'r «. Gilpin, 
 1 Rob. E. 26; Buchanan v. Clark, 10 Grat. 164; Bank of U. S. v. Ritchie, 8 Peters' 
 E. 128; Colclough v. Sterum et al, 3 Bligh. P. Cas. 181; Coger v. Coger, 2 Dana's 
 E. 270; McKee's Heirs v. Hann, 9 Dana's E. 526; Parker's Heirs v. Andei-son's 
 Heirs, 5 Monr. E. 445; Rodgers v. McCleur's Adm'rs, 4 Grat. 81. On the subject 
 of this section, see also Hoffinan v. Shields, 8 W. Va. 32. 
 
 * Clarkson v. Eead et ah, 15 Grat. 291. 
 
§ 67 EEDEMPTION OP MORTGAGE OR TRUST. 223 
 
 bonds, there can be no proceeding in the chancery suit by attach- 
 ment against the purchaser.' However this may be as to a pro- 
 ceeding by attachment, that by rule has been approved whether 
 the purchaser has or has not executed his bonds.^ 
 
 Redemption of Mortgage or Trust. 
 
 § 67. Upon the principles discussed under the head o{ Assign- 
 ments, where a mortgagee assigns the whole beneiit of his security, 
 he is not a necessary party to a bill for redemption, for he has no 
 longer, any interest in the subject ; ' but in such case the persons 
 interested by virtue of the assignment must be made parties.* If, 
 however, the mortgagee assigns only a part of the benefit of the 
 security, his interest in the subject continues, and he is generally a 
 necessary party as well as the assignee. But even in this case he 
 may be dispensed with, if the amount as to which he made no 
 assignment is acknowledged to have been paid. 
 
 When the equity of redemption has been assigned, and the as- 
 signee of the mortgagor brings a bill to redeem, the mortgagor 
 must sometimes be made a party. This was the case where a 
 debtor executed a deed of trust, and afterwards sold the equity to 
 a redemption, and upon a bill by the purchaser to redeem, im- 
 peaching the deed of trust, the debtor was held to be a necessary 
 party. ^ 
 
 A comprehensive summary of the parties essential to a bill to 
 redeem is contained in Story's Equity Pleading,* from which we 
 gather the following : If the mortgagor be dead, his heir or devisee 
 is the proper party to redeem if it be a mortgagee in fee ; but if 
 
 'Richardson v. Jones, 3 Gill & Jolm. E. 163; Anderson v. Foulke, 2 Harr. & 
 Gill. 346. 
 
 'Clarkson v. Eead et ah, 15 Grat. 291; McClintic v. Wise's Adm'rs et ah, 25 
 Grat. 448; Jones v. Tatum, 19 Grat. 720; Thornton v. Fairfax et cds, 29 Grat. 669; 
 Long et ah v. Weller's Ex' or et ah, Id., 347. 
 
 'Norrish J). Marshall, &c., 5 Madd. Chy. E. 288. 
 
 *Hickock V. Scribner, 3 Johns. Cas. 311, cited in Story's Eq. PI. § 72, 75. 
 
 * Clark V. Long, 4 Eand. 451. 
 
 « § 182 to § 192. See also Daniel's Chy. Pr., Vol. 1, p. 258 to 261. 
 
224 PARTIES TO SUITS IN EQUITY. § 68 
 
 of a term of years, the personal representative is the proper party. 
 If two estates are mortgaged, and by death the equities of redeijip- 
 tion pass to different persons, all of these should he made parties. 
 If part of the mortgage has been paid by the mortgagor in his 
 lifetime, both his personal representatives and his heirs or devisees 
 are necessary parties ; and the better rule seems to be that the per- 
 sonal representative should always be a party to a bill to redeem, 
 filed by the heir or devisee. 
 
 Where there are successive mortgages, and any subsequent 
 mortgagee has the right to redeem either one or all of the ante- 
 cedent mortgages, to a bill brought by him for such a purpose, the 
 mortgagor, or his heirs or other proper representative in the realty, 
 and the personal representative also, are necessary parties. These 
 rules, applicable to a mortgagor as plaintiff, apply also to a mort- 
 gagee as defendant. 
 
 Remedies Over. 
 
 § 68. Whenever it appears, or is made to appear, that in case 
 the plaintiff prevails, the defendant will have a remedy over 
 against some other person or fund, the court will require that 
 other person to be made a party in the first instance, in order that 
 his liability may be passed upon, and settled in one proceeding.* 
 This has been held to be proper where the defendant admitted in 
 his answer that he was entitled to be reimbursed by another; 
 where an heir at law sued the widow to compel her to take a 
 legacy in lieu of dower, for if the plaintiff should succeed, she 
 could recover her legacy from the personal representative ; where a 
 suit was against an heir, for should he have to pay he could resort 
 to the personal fund for indemnity ; where one who contracted to 
 purchase real estate died intestate as to that land before the com- 
 
 ' Where the United States, as a party to the suit, was held to represent the State 
 of Virginia, not a party, in a case .where Virginia was to take a legacy in the 
 event that it was declined by the United States, see Virginia v. Levy et als, 23 
 Grat. 21. 
 
§ 69 REPRESENTATIVE PARTIES. 225 
 
 pletion of the contract, in a suit by the vendor against the personal 
 representative, the heir was held to be a proper party. 
 
 In cases of sureties and joint-obligors the court compels all of 
 them to be brought in/ that in one suit all questions of contribu- 
 tion may be settled,^ although, as we have seen, it is not competent 
 to the principal debtor to object because the sureties are not made 
 parties to the suit.^ 
 
 Representative Parties. 
 
 § 69. The interests of many persons may sometimes be con- 
 centrated in one or more individuals, as for instance, where real 
 estate was purchased by a joint fund raised by a large number of 
 subscribers, and was conveyed to trustees for their benefit ; in such 
 cases the latter are proper parties, while it is not necessary to bring 
 the other persons before the court ; or rather they are considered 
 as sufficiently before the court in the persons of their representa- 
 tives.* The same is held to be true where real estate which is 
 subject to an entail is in controversy, for in such cases it is sufficient 
 to make the first person in being in whom an estate of inheritance 
 is vested, a party with those claiming prior interests, omitting 
 those who may claim in remainder or reversion after such vested 
 estate of inheritance ; but this rule is generally confined to cases 
 in which the interest of the last-named persons is dependent upon 
 the prior estates of inheritance, and it is not practicable to make 
 them parties.^ 
 
 We have before noticed ^ that it is competent to a few individ- 
 uals to represent, as parties to a cause, a large number of persons 
 having a similar interest, both as plaintiffs and as defendants ; 
 
 ' Lomax on Ex'ors, Vol. 2, p. 798. 
 
 2 Daniel's Chy. Pr., Vol. 1, p. 281 to 286; Story's Eq. PL, J 173 to § 180. 
 ' Ante, this chapter, § 58. Even bankrupt joint contractors must be joined. 
 Roberts v. McLean, 16 Vermont, 608; 41 Am. Dec. 529. 
 ^ Van Vechten v. Terry, 2 Johns. Chy. E. 197. 
 5 Story' 3 Eq. PL, § 144 to 147. 
 ^ Ante, this chapter, § 49. 
 
 15 
 
226 PARTIES TO SUITS IN EQUITY. § 70 
 
 and we have also observed that this rule applies to stockholders, 
 creditors, legatees, distributees, and appointees under a will, sub- 
 ject, however, to the restrictions and limitations referred to ; but 
 the rule is not confined to the instances mentioned,' and this mode 
 of procedure is permitted in practice wherever a strict adherence 
 to the general rule, requiring all persons in interest to be made 
 parties, would probably amount to a denial of justice. This prac- 
 tice is perhaps more frequently applied in cases of shareholders 
 of joint-stock companies than in any other cases.^ 
 
 Resulting Trusts. 
 
 § 70. All the rules regulating the practice of courts as to the 
 necessity of making the beneficiaries parties to suits relating to 
 trust property, apply to resulting trusts as well as to others.^ So 
 where a bill was by a grantee against persons in possession of 
 land, and it appeared from the bill that the plaintiff was a mere 
 nominal trustee, the real cestui que trust was held to be a necessary 
 party.'' Where the grantee died it was held that the suit should 
 be revived against the heirs or devisee of the grantee, and not 
 merely against his executors.^ 
 
 Spedfie Performance and Rescission of Gontracts. 
 
 § 71. We have observed" that in a bill for specific performance 
 an agent is sometimes a proper party to the suit where the con- 
 tract was made in his name, or in his own name, and as agent 
 
 ' See the provisions of the statute (? 3313; Code W. Va., Ch. 127, ? 9) for suits 
 in equity where more than thirty persons have been served with process where 
 theu- interests are simUar to those of other persons not served. 
 
 ^ Daniel's Chy. Pr., Vol. 1, pp. 238 to 243. 
 
 » Daniel's Chy. Pr., Vol. 1, p. 261. As to what constitutes resulting trusts, see 
 Story's Eq. Juris., § 1196 to i 1207; L. Cas. in Eq., Vol. 1, Pt. 1, 319 to 364; 
 Id., Pt. 2, 1181 to 1202; Dannon v. Hull, 38 Barbour, 136; McCartney x). Welch, 
 44 Id. 271; Woodsworth v. Sweet, Id. 268; Danforth D.Woods, 11 Paige, 9; Phelps 
 V. Seely, &c., 22 Grat. 573; Borst v. Nalle et ah, 28 Grat. 423. 
 
 *Malin v. Malm, Ac, 2 Johns. Chy. E. 238. 
 
 ^ Key's Ex'ors v. Lambert, 1 H. & M. 330. 
 
 ^ Ante, this chapter, | 65. 
 
§ 71 SPECIFIC PERFORMANCE, RESCISSION OF CONTRACTS. 227 
 
 for another, but that even then he is not a necessary party if the 
 bill avers, and the evidence sustains it, that he only contracted as 
 agent for the complainant. It is, moreover, declared that the rule 
 requiring an agent to be a party to such a suit, does not apply to 
 agreements not under seal, because even at law it is the undoubted 
 right of the principal to interpose and supersede the right of the 
 agent, by claiming to have the contract performed to himself, 
 although made in the name of his agent.' 
 
 The general rule in all suits for the specific performance or re- 
 scission of contracts is, that none but parties to the contract are 
 necessary parties to the suit. Therefore strangers claiming under 
 an adverse title need not be brought in, although one claiming by 
 an antecedent agreement is a proper party. ^ , 
 
 When other persons are so much interested in the subject-matter 
 of the contract, that their concurrence is necessary for the comple- 
 tion of the title, they should be brought in, although they have 
 no right to sue as plaintiifs ; and when subsequently to the con- 
 tract another person has acquired an interest under the vendor, 
 with notice of the purchaser's rights, he should be made a party.' 
 
 But where prior to the suit the complainant assigned a part of 
 his interest in the subject, the assignee was held not to be a neces- 
 sary party, upon the principle that the owners of partial interests 
 in contracts for land, acquired subsequent to their execution, are 
 not necessary parties to bills for their enforcement. It is other- 
 wise where the contract is assigned.* Where an assignee of a 
 vendee sues for a title, the vendee need not be a party if he has 
 parted with all his right, and there, is written evidence of this 
 fact ; ^ and this rule has prevailed where the suit was not against 
 
 ' Daniel's Chy. Pr., Vol. 1, p. 195, 197. 
 
 'Id., p. 230. 
 
 » Daniel's Chancery Pr., Vol. 1, p. 231. 
 
 * Willard v. Tayloe, 8 Wall. 557. 
 
 s Hoover v. Donally, &c., 3 H. & M. 316 ; Hobart v. Abbot, 2 P. Wms. 643; 
 Edgar v. Donally, &c., 2 Munf. 387; Mayo v. Murchie, 3 Munf. 358; Pennington 
 V. Hanby, &c. , 4 Munf. 140. The assignee in bankruptcy of the vendor is a neces- 
 sary party. Swepson v. Rouse, 65 N. C, 34; 6 Am. E. 735. • 
 
228 PARTIES TO SUITS IN EQUITY. § 71 
 
 the vendor, but against one to whom the vendor had conveyed by 
 order of the vendee, the defendant being a purchaser with notice 
 of the plaintiff's ch^im.' 
 
 The vendee, or his legal representative, ought to be made a 
 party to a suit brought by the vendor against a subsequent pur- 
 chaser from the vendee, to- recover a balance of purchase money 
 alleged to be due from the vendee.^ 
 
 ^^here the vendee has died without being able to recover the 
 land sold him, and an action at law is brought against his admin- 
 istrator upon the purchase money bond, the administrator, and not 
 the heir, is the proper-plaintifi' in a suit to injoin the vendor from 
 recovering the purchase money, if a discharge from the obligation 
 to pay such purchase money is all that is sought.' But if the 
 representative of the vendee claims compensation for a deficiency, 
 credits of payments, and a conveyance, and both vendor and 
 vendee have died, the bill should be by the heirs, as well as by 
 the administrator of the vendee, against the administrator and 
 heirs of the vendor, so that the court, on allowing the compensa- 
 tion and credits, may decree a conveyance from the heirs of the 
 vendor to the heirs of the vendee.* 
 
 Where a vendor is dead, his heirs should be made "parties to a 
 suit for specific performance ; '' and if the vendee be dead, on a 
 like bill brought by the vendor or his'heirs, the heir or devisee 
 of the vendee, as well as his personal representative, should be 
 made parties.* 
 
 Specific performance will not be enforced, either at the suit of 
 or against an infant, except in those cases in which he is a mere 
 
 > Lambert v. Nanny, 2 Mimf. 196. 
 
 2 Duval V. Bibb; 4 H. & M. 113. 
 
 ^ Bullitt' r Ex' orsti. Songsters, 3 Munf. 54. 
 
 *But see Humphrey's Adm'r v. McClenachan' s Adm'r, &c., 1 Munf. 493; 
 Champion, &c., v. Brown, 6 Johns. Chy. E. 410. 
 
 ' Daniel's Chy. Pr. Vol. 1, p. 285; Duncans Wickliffe, 4 Scann. 452; House «. 
 Dexter, 9 Mich. 246; Hill and Wife v. Proctor, 10 W. Va. 59. 
 « Story's Equity Pleading, J 160. 
 
§ 72 SUEETIES. 229 
 
 trustee for others ; ' nor against any person who is not sui juris, 
 whether this arises from infancy, coverture, or lunacy.^ An ex- 
 ception to this rule is found in the case of the death of the vendor 
 ■before the completion of the contract, leaving an infant heir, under 
 which circumstance his infancy will be no objection to a decree for 
 specific performance.^ 
 
 Sureties.^ 
 
 § 72. To avoid a multiplicity of suits, and in order that in one 
 proceeding there may be contribution among the parties, the sureties 
 as well as the principal debtors should be parties to suits upon 
 either joint or joint and several obligations, and when one of the 
 obligors is dead, his personal representative as well as the survivors 
 should be made parties to the suit.'' 
 
 An exception to this rule is declared to exist where one or more 
 of the sureties is insolvent.^ 
 
 A surety may come into equity by a bill qida timet '' against the 
 creditor, and the debtor to compel the latter to make payment of 
 the debt, so as to exonorate himself ; * and he may enforce for his 
 
 * Tucker" b Commentaries, Vol. 2, p. 454. 
 ^ Lomax' s Digest, Vol. 2, p. 69. 
 ^Ibid., p. 69. 
 
 * See also Anle, this chapter, J 58. 
 
 i^ Story's Equity Pleading, § 169; Ante, this chapter, § 58, § 69. 
 
 "Story's Equity Pleading, ? 169; Cockburn v. Thompson, 16 Ves. 326. 
 
 ' Upon this subject, see Post, ? 96. 
 
 " Story's Equity Pleading, §? 327, 639, 849. On a creditor's bill, after the lands 
 of the principal are sold, the portion of the unpaid judgment which each surety 
 should pay should be ascertained, and a separate decree made against each for his 
 portion (Horton v. Bond, 28 Grat. 815), and for this purpose all the sureties should 
 be brought before the court. Hall v. James et aU, 75 Va. Ill; Redd v. Eamey, 31 
 Grat. 268. The same rule applies to devisees of land who are sued for the debt 
 of the ancestor. Lewis d. Overby, 81 Grat. 619. If one surety is insolvent or can- 
 not be made to pay his share, then there may be further resort to the other sureties. 
 Gentry v. Allen, 32 Grat. 259. The rule requires the estate of the principal to be 
 first exhausted before resort is had to that of any surety. Updyke's Adm'r ?•. Lane, 
 78 Va. 137. This rule does not prevent the creditor from making his debt by exe- 
 cution either from principal or surety. Penn v. Ingles, 82 Va. 68. And it will 
 only be applied so far as it can be done without too great delay and without preju- 
 
230 PARTIES TO SUITS IN EQUITY. § 72 
 
 exoneration any liens of the creditor on the estate of the principal ; 
 and if the latter be dead may bring any suit in equity which the 
 creditor could bring for a settlement of the administration account 
 of the decedent, and of the administration of the assets, whether 
 legal or equitable ; but he must bring the creditor into court along 
 with him in order that he may receive the money when it is re- 
 covered/ The creditor need not be a party where the surety has 
 paid the debt, and is seeking to be reimbursed by the principal or 
 co-surety.^ 
 
 Where one surety sued another for contribution, it was held that 
 the executor of a third surety, who was dead, ought to be a party, 
 although he died insolvent ; * but the general rule is, that if in 
 such cases the principal is clearly insolvent, and the fact of in- 
 solvency is proved, he need not be a party.* 
 
 dice to the rights of the creditors. Bell v. McConkey, 82 Va. 181. If one or 
 more of the sureties is insolvent, the apportionment will be against the rest, or if 
 the principal is insolvent the creditor may proceed at once against the sureties. 
 Jones V. Degge, 84 Va, 685. If the creditor have money or its equivalent in his 
 hands belonging to the surety, he would not be compelled to resort to this appor- 
 tionment proceeding. (This point was not, however, distinctly decided in Southall 
 V. Parish, 85 Va. 409. ) See also Post, H 253, 359. This doctrine has only been 
 applied to judgments, and not to deeds of trust, so as to affect the creditor's right 
 to enforce the contract contained therein. The other Virginia cases on this subject 
 are Harman v. Oberdorff, 33 Grat. 497; Muse v. Friedenwald, 77 Va. 57; Stovall 
 V. Border Grange Bank, 78 Va. 188; Edmunds v. Scott, 78 Va. 720; Jones v. Degge, 
 84 Va. 685; Eixey v. Dietrick, 85 Va. 42; Paxton v. Eich, 85 Va. 378; Southall 
 V. Parish, 85 Va. 403; and Womack v. Paxton, 84 Va. 9. In none of them, except 
 in the case of Womack v. Paxton, was a deed of trust involved, and in that case 
 it was not contended that the doctrine was applicable to a debt secured by deed of 
 trust. A judgment was also involved in that case, and the court held that, as to it, 
 the doctrine was applicable. See also Post, Vol. 2, §§ 253, 359. 
 
 ' Stephenson v. Tavemers, 9 Grat. 404. 
 
 '^ Murphy v. Jaxikson, 5 Jones' Eq. (N. C. ) 11. « Hole v. Harrison, Finch, 15. 
 
 * Daniel's Chy. Pr., Vol. 1, pp. 270, 271. Surety is not entitled to contribution 
 from his co-surety if by ordinary diligence he can obtain indemnity from the prin- 
 cipal. Morrison v. Peyntz, 7 Dana, 307; 32 Am. Dec. 92. In suit for contribu- 
 tion, the common principal, or, if dead, his administrator, must be made a party. 
 Kainey v. Yarborough, 2 Iredell's Eq. 249; 38 Am. Dec. 68. Surety may recover 
 from co-surety what he has paid more than his aliquot part. Aiken v. Pea/s 
 Ex'ors, 5 Strob.; 53 Am. Dec. 684. See also Am. & Eng. Encyc. of Law, Vol. 
 4, p. 2. 
 
§ 73 TEjJANTs. 231 
 
 In a suit by legatees for the distribution of an estate, all the 
 sureties in the official bond of an executor should be made parties, 
 or a sufficient reason for failing to do so must be shown ; ^ and the 
 same is true where the suit is against an administrator to subject 
 him to liability because of his misconduct in the management of 
 the estate.^ Where one of the sureties has died, process should be 
 served both upon the administrator of the deceased surety and 
 upon the survivor.* 
 
 Where a guardian gave a new bond, as he might do, or might 
 be compelled to do, under the statute,^ and a suit in equity was 
 brought against the guardian and his sureties on that bond for a 
 settlement of the guardian's accounts, it was held, that as the last 
 bond was valid, and related back to his appointment as guardian, 
 the sureties on the first bond were discharged, and were not neces- 
 sary parties to the 8uit.° 
 
 Tenants. 
 
 § 73. The general rule is, that the occupying tenants of land, 
 claiming possession under the persons against whom the bill is 
 brought, and whose title is disputed, are not deemed necessary 
 parties. If, however, it is intended to conclude also their rights 
 by the same suit, they should be made parties, and if not brought 
 in in the first instance, the court will order them to be summoned 
 at whatever stage of the case it may appear that their rights are 
 in jeopardy.'* 
 
 The suit of the Winchester and Strasburg Railroad Company 
 
 > Hutcherson, &c. v. Pigg, 8 Grat. 220. 
 
 ^ Payne v. Hook, 7 Wall. 425. 
 
 3 Bland, &c. v. Wyatt, 1 H. & M. 543. 
 
 *§ 2687; CodeW. Va., Ch. 87, ?i 10. 
 
 * Sayera v. CasseU et als, 23 Grat. 525. See also Hendrick's Adm'r v. Hopkins, 
 8 W. Va. 167, wherein it was held, that in a suit again.st the committee of a lunatic, 
 in which relief was sought against the sureties in his official bond, all the sureties 
 in the bond were necessary parties. 
 
 « Story's Eq. PL, J§ 151, 93, 165; Calvert on Parties, p. 287; Daniel's Chy. Pr.^ 
 Vol. 1, p. 209-263. 
 
232 PARTIES TO SUITS IN EQUITY. § 74 
 
 against Colfelt d al, 27 Grat. 777, was a bill filed in the circuit 
 court of Frederick county, Virginia, by Charles Colfelt, for him- 
 self and the other lien creditors of the Winchester and Strasburg 
 Railroad Company, to subject the road-bed, depot buildings, and 
 franchises of that company to the payment of its debts. The 
 amended bill filed in that cause averred that the Baltimore and 
 Ohio Eailroad Company had possession of the road, but upon 
 what terms and by what .right complainants were not informed, 
 and they prayed that the Baltimore and Ohio Railroad Company 
 be made a party, and be compelled to answer the bill. Upon a 
 demurrer .to this bill the court held that it was proper to make the 
 Baltimore and Ohio Railroad Company a party to the suit. 
 
 Trusts and their Settlements. 
 
 § 74. In suits respecting the trust property either by or against 
 the trustees, the beneficiaries' as well as the trustees,^ and where 
 there is more than one, all of each, as a general rule,^ are neces- 
 sary parties ; and the same is true where the suit is against the 
 beneficiaries.* 
 
 Some of the instances in which this rule has been applied, are 
 where the bill was by a cestui que trust for the specific performance 
 of a covenant under seal made to the trustee for the benefit of the 
 plaintiif ; for here the trustee was held to be a necessary party to 
 the suit. So also where the bill was by a cestui que trust to fore- 
 close a mortgage given for his benefit ; and where the bill was by 
 a cestui que trust against a third person to whom the trustee had 
 
 1 Collins V. Loiftus & Co., 10 Leigh, 5; Commonwealtli v. Kicks, 1 Grat. 416; 
 Worthington v. Lee, 2 Bland. 678. 
 
 'CHara et al v. MacConnell et al, 3 Otto, 150, McDaniel v. Baskerville, 13 
 Grat. 228; Baker v. OU Tract Co., 7 W. Va. 454; Turk v. Skiles, 38 W. Va. 404. 
 
 ' Eichardson D. Davis and Wife, 21 Grat. 711; Contra, as to the heneficiaries, 
 where the proceeding is to set aside a deed as fraudulent. Rogers, &c. v. Bogers, 
 &c., 3 Paige E. 379; Van Vechten, &c. v. Terry, &c., 2 Johns. Chy. E. 197. 
 
 ^Story's Eq. PI., § 207, 210; Daniel's Chy. Pr., Vol. 1, p. 193; Code 1873, Ch. 
 124, i 2. See also Norris, Caldwell & Co. v. Bean et ak, 17 W. Va. 655; Chap- 
 man V. P. & S. E. E. Co. et ah, 18 W. Va. 186. 
 
§74 TEUSTS AND THEIE SETTLEMENTS. 233 
 
 assigned in violation of the trust, the trustee was held to be a 
 proper party.^ 
 
 Where there is more than one trustee, if any of them be dead, 
 the survivor or survivors must be made parties,^ and if all be dead 
 the personal representative of the last survivor must be made a 
 party, unless some one has been substituted as trustee in thfe place 
 of the one who has died.' 
 
 If the suit be against such of the trustees only as have been 
 guilty of a breach of trust, or merely for an account of funds in 
 the hands of one of several trustees, the others need not be in- 
 cluded in the suit.* 
 
 It is a general rule that a trustee cannot institute proceedings 
 in equity relating to the trust property, without making the cestuis 
 que trust parties to the suit.' This has been held to be necessary 
 where the bill was filed for a sale of the property ; for the specific 
 performance of a contract ; and even where the beneficiaries were 
 of so large a number as to make it impracticable to include them 
 all, it was held necessary for the bill to be filed by some of the 
 beneficiaries on behalf of themselves and the others. 
 
 Exceptions to this rule are said to exist where the trustees are by 
 the deed vested with power to sell and to apply the proceeds amongst 
 creditors and others, with a clause declaring the receipt of the trus- 
 tees to be a good discharge to the purchaser ; ^ but such an exception 
 is not of frequent application, for the reason which usually compels 
 a trustee to bring a suit in order to sell, is to have it settled who are 
 the beneficiaries under the trust, or else to clear up some obstacle 
 to a sale, in which questions the creditors are directly interested.^ 
 
 1 Stor/s Eq. PL, ? 209. ^ Id., § 211. 
 
 ^ Ante, this chapter, ^ 52. 
 
 ♦Stor/s Eq. PL, ? 213, 214; 1 Daniel's Chy. Pr., p. 268. 
 
 5 Daniel's Chy. Pr., Vol. 1, p. 257. 
 
 «Daniel'sChy. Pr.,Vol. 1, p. 220-221; Bucki). Pennybacker' s Ex' ors, 4 Leigh, 5. 
 
 ' Hogan !). Duke et als, 20 Grat. 244. An exception was also held to exist where 
 the bill was filed by the trustee to assert and defend the rights of the cestui que trust, 
 wherein full opportunity was offered the eeslui que trust to controvert the preten- 
 sions of the other party. Woodson's Trustee v. Perkins, 5 Grat. 353. 
 
234 PARTIES TO SUITS IN EQUITY. § 75 
 
 Another exception to the rule requiring the trustee to be a party, 
 exists in the case of one who is named as trustee in a will, but has 
 never acted, and has released ^ all his interest to his co-trustee, 
 where the bill is to set aside the will on the groiuid of fraud. But 
 where a trustee has assigned his interest in the trust estate to 
 anothe'r, it is necessary to have not only the trustee who has as- 
 signed, but the assignee also, before the court. ^ 
 
 Wills. 
 
 § 75. Where the object of the suit is to establish or to set aside 
 a will, or affects any trust set up by the will, the executor,' the 
 devisees, and the heirs sliould be made parties, unless the suit con- 
 cerns merely personal property, in which case the heirs are not 
 necessary parties.* Such a suit may also be maintained by dis- 
 tributees, or it may be, as the character of the will indicates, that 
 they are necessary defendants ; '' but the general rule in this, as in 
 all other suits in equity, is that no decree can be properly pro- 
 nounced upon the subject of the validity of a will unless all 
 persons in interest are before the court.^ The fact that some of 
 the plaintiffs had accepted legacies and devises under a will does 
 not preclude them from disputing its validity.'' 
 
 ' The same question was involved, to some extent, in the case of Jones v. Tatum, 
 19 Grat. 720, which was the case of a deed and a release of interest to the trustee. 
 Here the court did not definitely pass upon the question of the necessity of making 
 the trustee a party, but it seems strongly to be intimated that it is not necessary to 
 do so, because in such a case the trustee has no interest and no power, being unable 
 to charge the estate by any act of his, or to recover possession of it by any action 
 at law against the beneficiaries. See also Code of Virginia, § 2742; Code W. Va., 
 Ch. 90, I 21. 
 
 2 Daniel's Chy. Pr., Vol. 1, p. 247. See also Calvert on Parties, p. 207. 
 
 'But not in his own right. Coalter's Ex' or el als v. Bryan and Wife el ok, 1 
 Grat. 18. 
 
 * Story' sEq. PI., ? 171-181. 
 
 ^ Lomax on Executors, Vol. 2, p. 809. 
 
 ^ Kincbeloe v. Kincheloe, 11 Leigh, 400; Osborne et ah v. Taylor's Adm'r el als, 
 12 Grat. 117; Morgan v. Morgan, 42 W. Va. 542; Crickard v. Crouch, 41 W. Va. 
 503; Bank v. Watson, 39 W. Va. 342; Graves v. Hedrick, W. Va. ; 29 S. E. R. 1013. 
 
 ' Malone's Adm'r el ah v. Hobbs el ah, 1 Rob. R. 366. 
 
§ 76 HOW PARTIES MAY BE DISPENSED WITH. 235 
 
 How Parties may be Dispensed With. 
 
 § 76. A plaintiff by waiving a particular claim may sometimes 
 avoid the necessity of bringing in persons who would otherwise 
 be necessary parties, although this cannot be done to the prejudice 
 of others ; ^ but an express relinquishment of an objection for 
 want of proper parties will not justify the court in proceeding 
 with the cause in the absence of such parties.^ 
 
 A statement in the bill that the interests of certain persons in 
 the subject have been satisfied, which is not contradicted by the 
 answer or by proofs in the cause-, makes an objection for want of 
 those persons as parties', untenable ; although it is admissible to 
 suggest in the answer that there may be other persons interested 
 who are not before the court, and in such cases that question may 
 be settled by a reference to a master commissioner to enquire and 
 report.' 
 
 Effect of Omission or Misjoinder of Parties. 
 
 % Tl. We have already seen that where the court concludes that 
 the necessary persons are not parties to the suit, it will proceed no 
 further until they are brought in ; but it sometimes happens that 
 the error consists in bringing in persons having no interest in the 
 litigation, and whose presence is either not proper or not necessary 
 to its determination. Such a mistake may be fatal to a suit at 
 law,* but the rules in chancery are much more liberal, and it may 
 be that persons are joined as parties who, if they had been omitted, 
 
 ' Story's Eq. PI., §224, 228. 
 
 ^ This statement of the law is taken from'the opinion of Bouldin, J. , in Armen- 
 trout's Ex'ors v. Gibbons, 25 Grat. 376; but see the syllabus to Sheppard's Ex' or 
 V. Starke and Wife, 3 Munf 29, and the opinions of Judges Eoane and Fleming 
 in Mayo v. Murchie, 3 Munf. 400, and of Judge Carr in Clark v. Long, 4 Eand. 
 453. In the United States courts want of jurisdiction in respect to the parties 
 may be waived by appearance and pleading to the merits. Minor' s Institutes, 
 Vol. 4, Pt. 1, p. 868. 
 
 'Moore's Adm'r i;. George's Adm'r, 10 Leigh, 228; Cooper's Eq. PI., 39, 40; 
 Mitford's PI. by Jeremy, 167, et seq. 
 
 * Story's Bq. PL, g 75. But see 1 Bart. Law Pr., I 80. 
 
236 PARTIES TO SUITS IN EQUITY. § 77 
 
 would not have been deemed necessary parties, and yet their pres- 
 ence furnishes no valid ground of exception/ These remarks 
 apply generally, although not always,^ to merely formal parties, 
 and it is competent to any one who is brought into the suit to 
 object that he has no interest in it. If this fact appears on the 
 face of the bill the objection may be made by demurrer ; ^ but if 
 the bill states that the defendant has or claims an interest, the 
 objection can only be made by plea or answer ; ^ and the same 
 rules apply to persons improperly joined as plaintiff's.^ 
 
 Where a plaintiff finds that he has made unnecessary parties to 
 his bill he may either dismiss it as to them, or, by leave of the 
 court, amend by striking out their nanies. In either mode of 
 procedure the complainant must pay those parties their costs.^ 
 
 The general rule where necessary parties have been omitted is, 
 that the bill will not on that account be dismissed, but the com- 
 plainant will be allowed to bring in new parties by supplemental 
 bill or otherwise as may be provided by statute ; ^ but this is not 
 universally true, for the rule rests upon the supposition that the 
 fault may be remedied and the necessary parties supplied ; but 
 when this is impossible, and whenever a decree cannot be made 
 without prejudice to one not a party, the bill must be dismissed.* 
 
 1 Story's Eq. PI., ? 221-229; BaUey v. Inglee, &c., 2 Paige, 278. 
 
 ^ Sayers et als v. Wall et ah, 26 Grat. 354. 
 
 5 Daniel's Chy. Pr., Vol. 1, p. 299; Cuff v. Platell, 4 Russ. 242-; 3 Cond. Eng. 
 Chy. R 651; Dabney v. Preston's Adm'r, 25 Grat. 840. 
 
 *1 Daniel's Chy. Pr. 299; Makepeace v. Haythorne, 4 Enss. 244; 3 Cond. Eng. 
 Chy. R. 652. See abo Clarkson and Wife v. De Peyster, &c., 3 Paige, 336; 
 Dickerson v. Davis and Others, 2 Leigh, 401; BaUey v. Inglee, &c., 2 Paige, 278. 
 
 s 1 Daniel's Chy. Pr. 301, 302; Vaiden el als v. Stubblefield's Ex' or, 28 Grat. 
 153; See also Burlew, Trustee, v. Quarrier, 16 W. Va. 108. For the general rule 
 as to joinder of parties to suits in equity, see Snyder et al v. Cabell et al, 29 W. 
 Va. 48; N. & W. R. E. Co. et als v. Smoot, 81 Va. 495. 
 
 Daniel's Chy. Pr., Vol. 1, p. 301; Brinkerhoff, &c. v. Brown, &c., 6 Johns. 
 Chy. E. 139; Covenhoven v. Shuler, 2 Paige, 122; 21 Am. Dec. 73. 
 
 "I Ante, this chapter, | 59; Mitchell, Sheriff, v. Chancellor, 14 W. Va. 22; Stew- 
 art, Adm'r, v. Jackson, 8 W. Va. 29; Kelly's Rev. Stat, Vol. 2, p. 889, | 58. 
 
 8 Bank v. Carrolton EaUroad, 11 Wall. 631; Story's Eq. PI., § 541; Shields et al 
 V. Barrow, 17 Howard, 130; Kelly's Rev. Stat., Vol. 2, p. 888, ? 51. A bUl is 
 
§ 77 EFFECT OF OMISSION OR MISJOINDER OF PARTIES. 237 
 
 Where a plaintiif has failed to make the proper parties in the 
 lower court, the court of appeals will not permit him to take 
 advantage of his own omission and have a decree reversed which 
 is correct and proper in all other respects ; ' and having shown no 
 right to reli»f, where the bill has been dismissed the decree cannot 
 be reversed to enable the plaintiff to introduce new parties, and 
 thereby make a new case upon the merits. But where the plaintiff 
 has shown a right to relief against parties before the court, and 
 has omitted to make other ne"cessary parties, the bill will not be 
 dismissed, but he will be permitted to amend and add the neces- 
 sary parties, and for that purpose the case will be sent back to the' 
 court below.^ If the omission be of merely formal parties, the 
 case will not be reversed on that account, and it is competent to 
 the appellate court to bring in such formal parties, and amend or 
 affirm the decree.' 
 
 Where an appeal is from an interlocutory decree correct on the 
 "merits, but erroneous for want of proper parties, the court will 
 reverse the decree, but will allow the appellee to recover costs ; ^ 
 but if the appeal is from a final decree, or from one upon which 
 the appellate court does not pass upon the merits, the appellee, by 
 whose default the proper persons were not before the court, will 
 have the costs to pay.° 
 
 • 
 
 not demurrable for misjoinder when the defendants, though not all necessary, are 
 
 not improper parties. Whittemore v. Coster, 3 Green's Chy. Pr. 438; 41 Am. 
 Dec. 740. A demurrer for want of proper parties is only available when the 
 necessity for their presence is shown by the pleadings or proofs, or is made to ap- 
 pear with the demurrer. See Post, H 112, 117; Cook v. Dorsey, 38 W. Va. 196; 
 Bobinson v. Dix et al, 18 W. Va. 528. A decree is an absolute nullity as to per- 
 sons not named as parties in the bUl, and against whom no allegations are made 
 and no relief is prayed. Cronise v. Carper, Kudesill el ah, 80 Va. 678. A decree 
 is a nullity against persons not served with process, whether relief is prayed or not. 
 
 ' Kincheloe v. Kincheloe, 11 Leigh, 398. 
 
 ^Jameson's Adm'x v. Deshields, 3 Grat. 4. 
 
 ' Cunningham v. Patteson, 3 Rand. 66. 
 
 * Jas. Riv. & K. Co. v. Littlejohn, 18 Grat. 53; Jones v. Tatum, 19 Grat. 720; 
 Hale V. Home el ah, 21 Grat. 112. 
 
 * Owens V, Kiel/ s Ex' or, not reported. 
 
238 PARTIES TO SUITS IN EQUITY. § 78 
 
 Where process issued against one of several persons who was 
 not made a party defendant to the bill, and against whom there 
 was no allegation and no relief prayed, and a decree was made 
 against him by default, on appeal by some of the defendants, it 
 was held that the decree was a mere nullity as to himi^ 
 
 How and When Defect of Parties may be taken Advantage of. 
 
 § 78. If the want of proper and necessary parties is apparent 
 on the face of the bill, the defect may be taken advantage of by 
 •demurrer ; " but if it be not apparent from the bill- or proofs, it 
 may be raised by plea or answer.^ 
 
 If the defect complained of be the joinder of improper parties, 
 and that fact be apparent on the face of the bill, it may be raised 
 by demurrer ; or if it be not apparent, the objection may be made 
 by plea or answer.'' 
 
 The plea or answer may disclose facts showing the necessity for 
 additional parties, but it must show who they are, and leave will 
 be given to amend in that respect ; '' but when the defect is taken 
 by demurrer, although leave will generally be given to amend, it 
 will be upon the condition of payment of costs.' 
 
 Although the defect of lack of parties be not suggested by 
 demurrer, plea, or answer, yet, if it be apparent on the face of the 
 bill, it will prevail at the hearing,^ and even though not raised in 
 any way in the lower court, it is competent to make the objection 
 
 1 Mosely v. Cocke, 7 Leigh, 224. 
 
 "Story's Eq. PL, J 236; Bobinson, &c. v. Smith, &c., 3 Paige, 222; 2 Lomax 
 on Ex'ors, 813. See also Ante, I 78; Post, ?d 112, 117. 
 
 'Story's Eq. PL, 5 236; Mitchell v. Lenox & Taylor, 2 Paige, 280; Eobinson, 
 &c. V. Smith, &c., 3 Paige, 222. 
 
 * Story" sEq. PL, I 237. 
 
 *Cook, &c. V. Mancius, &c., 3 John's Chy. K 427; Milligan i>. MiUedge and 
 Wife, 3 Cranch, 220. 
 
 « Mitchell I). Lenox & Taylor, 2 Paige, 280; Elliott's Ex'ort). Drayton, &c., 3 
 Desau. 29. 
 
 ' Moore's Adm'r v. George's Adm'r, 10 Leigh, 238; Clark v. Long, 4 Kand. 451. 
 
§ 78 DEFECT OF PARTIES TAKEN ADVANTAGE OF. 239 
 
 in the court of appeals ; ^ and although no objection be made there, 
 the court itself will regard it of its own motion/ and will reverse 
 the cause for lack of proper parties, and send it back that the 
 , person whose presence is necessary to a just and final adjudication 
 of the case may be brought before the court.^ 
 
 If the defect be to the misjoinder of parties as plaintiifs, unless 
 it has been raised by demurrer, plea, or answer, it will not avail 
 at the hearing if a decree can be rendered without prejudice to the 
 rights of the parties.* 
 
 In one case* where an objection was made that certain creditors 
 who should be parties were not before the court, the objection was 
 disregarded because those creditors had suffered twenty years to 
 elapse without asserting their claims, and it was presumed that 
 they had either been satisfied or abandoned. 
 
 It 'is sometimes too late for the complainant to object for lack 
 of proper parties when the suit has come to the coiirt of appeals 
 without objection up to that time. This was held to be the case 
 where, pending the cause, one of the two co-executors died, and 
 although his death was suggested, the cause was not revived against 
 his personal representative, but the suit, which involved elaborate 
 and tedious accounts and settlements, was prosecuted by the sur- 
 
 ' Hooper v. Eoyster, 1 Munf. 119; Sheppard's Ex'ors v. Starke and Wife, 3 
 Munf. 29; Myrick v. Adams, 4 Mirnf. 366; Hoe et <il v. Wilson, 9 Wall. 501; 
 Armenti'out' s Ex'ors v. Gibbons, 25 Grat. 371; Dabney v. Preston's Adm'r, Tbid. 
 841; Sillings et ah v. Bumgardner, 9 Grat. 273. See also ChappeU v. Robertson, 
 2 Kob. E. 594; Hutcherson, &c. v. Pigg, 8 Grat. 220. 
 
 2 Hoe et al v. WUson, 9 Wall. 501; Lynchburg Iron Co. v. Taylor, 79 Va. 671; 
 Hinton et ah v. Bland's Adm'r, 81 Va. 588; Morgan v. Blatcliley, 33 W. Va. 158; 
 Cook V. Dorsey, 38 W. Va. 196; Snavely v. Pickle, 29 Grat. 42; Hitchcox v. 
 Hitchoox, 39 W. Va. 607; 20 S. E. R. 595; Turk v. SkUes, 38 W. Va. 404. 
 
 ^ Owens V. Riely's Ex' or, not reported; Clayton & Tyson v. Henly, 32 Grat. 74. 
 
 * Vaiden et als v. Stubblefield' s Ex' or, 28 Grat. 157; Livingston v. Woodsworth, 
 15 How. U. S. R. 546; Trustees of Watertown v. Cowen, 4 Paige E. 510; Harder 
 V. Harder, 2 Sanf. Chy. R. 17; Newhouse v. MUes, 2 Ala. E. N. S. 460; Ellicott 
 V. Ellicott, 2 Mary Chy. E. 468; Bunce v. Gallaher, 5 Blatch's R. 490; Dickenson 
 V. Davis et ah, 2 Leigh, 401. 
 
 ^ Mumford, &o. v. Murray, 6 Johns. Chy. R. 11. 
 
240 PARTIES TO SUITS IN EQUITY. § 78 
 
 viviiig executor without objection because of the failure to revive 
 against the personal representative of the dead executor.' 
 
 So where the plaintiff, by his bill, showed no right to relief, and 
 his bill was dismissed in the lower court, the court of appeals re- ■ 
 fused to reverse the decree to enable him to introduce new parties, 
 and thereby make a new case on the merits.^ 
 
 When this objection, for want of parties, is made at the hearing, 
 and the court is of opinion that it is well founded, it will not, 
 because proper parties are wanting, dismiss the bill absolutely, -but 
 will give the plaintiff' leave to amend his bill by adding proper 
 parties on payment of costs ; ' and if the aj)pellate court shall be 
 of opinion that the court below erred in proceeding to decree 
 without having the proper parties brought before it, the decree 
 will be reversed for this error, and the cause sent back, with lijjerty 
 to the plaintiffs to amend their bill in this respect.^ 
 
 Such is the rule where the defendant stands merely neutral, the 
 court being bound to see in that case that all necessary parties are 
 before it when its decree is pronounced. But if a defendant pray 
 the court to decree in a particular condition of the cause, or consent 
 that it should so decree, this may sometimes amount to a waiver of 
 the objection. And though the defendant should neither pray the 
 court to decree, nor consent, totidem verbis, that it may decree, yet 
 if he consent that the cause shall be heard as to himself, that 
 amounts to the same thing ; for a consent that the coUrt shall hear 
 a cause amounts to a consent that it shall decree therein." The 
 proposition that a party may sometimes waive an objection as to 
 
 • Kee's Ex' or v. Kee's Creditors, 2 Grat. 116. 
 ^ Jameson' s Adm' x v. Deshields, 3 Grat. 4. 
 
 'Green v. Poole, 4 Brown's Par. Cas. 122; Jones v. Jones, 3 Atk. Ill; Colt v. 
 Lasnier, 9 Cow. 334; Allen el ah v. Smith, 1 Leigh, 231; Ball et als v. Johnson's 
 Ex' or et als, 8 Grat. 281; Kelly's Key. Stat., Ch. 153, ? 58. 
 
 * Harding v. Handy, 11 Wheat. 133; Marshall v. Beverly, 5 Wheat. 313; Conn., 
 &c. ... Penn., Ibid. 424; Sheppard's Ex'oru Starke and Wife, 3 Munf. 29; Hooper 
 V. Eoyster, 1 Munf. 119; Myrick v. Adams, 4 Munf. 366. 
 
 ^ Mayo V. Murchie, 3 Munf. 397. 
 
§ 78 DEFECT OF PARTIES TAKEN ADVANTAGE OF. 241 
 
 the want of parties, it has been argued/ is nowise opposed to the 
 maxim that cbnsent cannot give jurisdiction. The want of parties 
 cannot always be regarded as a sine qua non of the jurisdiction of 
 the court, without which no complete decree can be had. 
 
 In many cases it may certainly be considered a privilege in 
 favor of the defendant, rather than an ingredient of the jm-isdic- 
 tion of a court of equity ; and such a privilege it is competent for 
 him to relinquish. He may waive this privilege, as he may waive 
 any advantage that might be taken of error in the form of the 
 proceedings, and rely altogether on the merits of his cause.^ 
 
 In a later case, however, as we have already shown,' it is stated 
 that even an express relinquishment of an objection for want of 
 parties will not justify the court in proceeding with the cause in 
 the absence of such parties. 
 
 'Eobinson's Pr. (old ed.), Vol. 2, p. 434. 
 2 Mayo V. Murchie, 3 Munf. 400, 404, 409. 
 Mm(e, §76. 
 
 16 
 
CHAPTER IV. 
 
 PEOCESS TO COMMENCE A SUIT, AND PEOCEEDINGS AT RULES. 
 
 ; 79. Directions to the Clerk. 
 
 ; 80. The Writ, and How it Issues. 
 
 ; 81. The Direction and Service of the 
 
 Writ. 
 : 82. The Eetum of the Writ. 
 
 J 83. Orders of Publication. 
 
 § 84. Bules and Kulc Days. 
 
 § 85. Confession of Decree. 
 
 ? 86. Pleas in Abatement. 
 
 § 87. Amendments at Rules. 
 
 Directions to the Clerk. 
 
 § 79. The process necessary to commence a suit may be issued 
 on the order of the plaintiff, his attorney, or agent ; ^ it is usually 
 in writing, and must be addressed to the clerk from whose court 
 the writ is to issue. The following form furnishes a fair example 
 of what is needed : 
 
 Frederick County, to- wit : 
 
 In the Circuit Court (1 st or 2d), September Rules, 1 879. 
 
 [■ Bill in Chancery. 
 
 Richard Roe and Fannie Roe, his wife, James Roe and John 
 Hunter, administrator of Jacob Roe, deceased, adults and residents 
 of this State ; Minnie Roe and James A. Roe, infant children of 
 Jacob Roe, deceased, residents of this State ; Wm. R. Powell and 
 Amelia Powell, adults and non-residents of this State ; Henry 
 Black and Fannie Jordan, infants, and non-residents of this State ; 
 the unknown children of Margaret Wilson, who was Margaret 
 Roe, and now deceased ; and C. B. Hancock, sheriff of Frederick 
 county, Virginia, and committee administrator of Niel Wilson, 
 deceased. Q. G. & S. — Solicitors for Complainants. 
 
 ' ? 3223; Code W. Va., Ch. 124, ? 5. 
 
§ 79 DIRECTIONS TO THE CLEEK. 243 
 
 The clerk will appoint A. B. guardian ad litem for the infant 
 defendants ; make publication against the non-resident defendants 
 as per accompanying affidavit, and issue process against the resi- 
 dents. Q. G. & S.—8ols. 
 
 The form of the directions must of course be changed as there 
 may be one or more plaintiffs or defendants, and where the suit is 
 by one or more persons for themselves and others, the direction 
 should be that a writ issue in their names, as for instance, " John 
 Doe and Israel Euffin, who sue on behalf of themselves and such 
 other creditors (or lien creditors) of Richard Roe as shall take part 
 in and share the costs of this jjroceeding ; " or " who sue for them- 
 selves and the other stockholders of the insurance company, 
 
 etc.," as the case may be. Where there are non-residents an 
 affidavit of that fact must accompany the order to the clerk, and 
 thereupon the defendant may be summoned by publication instead 
 ,of by ordinary process. The statute^ further provides for a similar 
 mode of summons where an affidavit is filed that diligence has 
 been used without effect by or on behalf of the plaintiff to ascer- 
 tain in what county or corporation a defendant is, or that process 
 directed to the officer of the county or corporation in which the 
 defendant resides or is, has been twice delivered to such officer 
 more than ten days before the return day, and has been returned 
 without being executed, or where the suit is for a divorce, that the 
 defendant is under sentence to confinement in the penitentiary. 
 Where the bill states that the names of any persons interested in 
 the subject to be divided or disposed of are unknown, and makes 
 such persons defendants by the general description of parties un- 
 known, an order of publication may be entered against them.^ 
 Where publication is necessary, the order to the clerk should con- 
 tain also a brief statement of the object of the suit. 
 
 1 ? 3230; Code W. Va., Ch. 124, ? 11. 
 
 ^ As to the mode of executing an order of publication, see Post, this chapter, 
 ? 83. For its effect, see Ante, Ch. 3, § 37. 
 
244 PROCESS TO COMMENCE SUIT, PROCEEDINGS AT RULES. § 80 
 
 The Writ, and How it Jsswes. 
 
 § 80. Upon being directed so to do, the clerk issues a writ, a 
 copy of which must be served upon each of the resident defendants 
 (except that, where any of them are infants, it is immaterial whether 
 they are served with the writ or not '), and the form of wliich is 
 usually as follows : 
 
 The Commonwealth of Virginia, 
 
 To the Sheriff of County, Greeting : 
 
 You are hereby commanded to summon to appear at 
 
 the clerk's office of the circuit court of county at rules to 
 
 be held in said office on the Monday in next to answer 
 
 the bill of complaint of , and this you shall in nowise omit, 
 
 and have then there this writ : 
 
 Witness '■ — clerk of said court, at the courthous'e thereof 
 
 the day of , 18 — , and in the year of the Common- 
 wealth . Clerk. 
 
 This writ nmst be dated and signed,^ and may issue from the 
 clerk's office of the circuit court of the county or corporation 
 wherein any of the defendants may reside ; ^ or if a corporation 
 be a defendant, wherein its principal office is, or wherein its mayor, 
 rector, president or other chief officer resides, and in Virginia it 
 may issue before the bill is filed.'' If the suit be to recover a loss 
 under any policy of insurance, either upon property or upon life, 
 the suit may be brought in the county or corporation wherein the 
 property insured was situated, or the person whose life was insured 
 resided at the date of the policy of insurance. If the suit be to 
 recover land, or to subject it to a debt, or be against a defendant 
 
 ' ? 3255; Code W. Va., Ch. 125, g 13. 
 
 ^ Hickam v. Larkey, 6 Grat. 210. 
 
 ' 2 Id., Ch. 165, ? 1; Minor's Institutes, Vol. 4, Pt. 2, p. 1113. 
 
 * Minor's Institutes, Vol. 4, Pt. 2, p. 1116. For the provision of the statute of 
 West Virginia regulating the place or court in which a suit or action may be 
 brought, see Code W. Va., Ch. 123, ? 1, as amended by act of February 20, 1897, 
 Acts 1897, p. 102. 
 
§ 80 THE WEIT, AND HOW IT ISSUES. 245 
 
 who resides without, but has estate or debts due him within this 
 State, ijhe suit may be in the circuit court of the county or corpo- 
 ration wherein such land, estate or debts, or any part thereof, may 
 be.* If the suit be on behalf of the Commonwealth, in the name 
 of the attorney-general, or when it may be necessary or proper to 
 make any of the following officers a party, to- wit : the governor, 
 attorney-general, treasurer, register of the land office, or either 
 auditor ; or when it may be necessary or proper to make any of 
 the following public corporations parties defendants, to-wit : the 
 board of education, board of public works, or any other public 
 corporation composed of officers of government, of the funds and 
 property of which the Commonwealth is sole owner, or in which 
 it shall be attempted to enjoin or otherwise suspend or affiact any 
 judgment or decree in behalf of the Commonwealth or any execu- 
 tion issued on such judgment or decree, the suit shall be brought 
 in the circuit court of the city of Richmond. If a judge of a 
 circuit shall be interested in a case, which but for such interest 
 would be proper for the jurisdiction of his court, the suit may be 
 brought in any county or corporation in an adjoining circuit.^ 
 
 In case of an injunction to any judgment, act or proceeding, 
 jurisdiction over the matter is in the circuit or corporation court of 
 the county or corporation^ in which the judgment is rendered, or 
 the act or proceeding is to be done, or is doing, or apprehended ; 
 and authority is given to every judge of a circuit or corporation 
 court to award injunctions, whether the judgment or proceeding 
 enjoined be of a superior of inferior court, in or out of his circuit 
 or corporation, or the party against whose proceeding the injunc- 
 tion is asked, resides in or out of the same.* Every order made 
 
 1 Minor's Institutes, Vol. 4, Pt. 2, p. 1113; Crutcher «. Crutcher, 4 Munf. 457; 
 Eandolph v. Tucker, 10 Leigh, 655, 662; Middleton v. Pinnell, 2 Grat. 202; "Wash. 
 & N. O. Telegraph Company v. Hobson, 15 Grat. 132; Beirne v. Rosser, 26 Grat. 
 537, 541; Warren v. SaundeiB, 27 Grat. 265-267. 
 
 2 S 3214; Code W. Va., Ch. 123, § 1, as amended by act of February 20, 1897, 
 Acts 1897, p. 102; Eandolph v. Tucker, 10 Leigh, 665. 
 
 = ? 3436; Code W. Va., Ch. 133, ? 4; Code Va., ? 3048. 
 * § 3437; Code W. Va., Ch. 133, ? 6. 
 
246 PEOCESS TO COMMENCE SUIT, PEOCEEDINGS AT RULES. § 80 
 
 awarding such an injunction shall be directed to the clerk of such 
 court as has jurisdiction over the judgment sought to be enjoined, 
 or within whose jurisdiction the act or proceeding enjoined is to be 
 done, or is doing, or is apprehended.^ The writ in an action may 
 also issue from the office of the circuit or corporation court of the 
 county or corporation wherein the cause of action, or any part 
 thereof, arose, although none of the defendants reside therein,^ or 
 if the defendant has no known place of residence in the Common- 
 wealth, in the county or corporation wherein he is found.^ 
 
 When the writ issues from the court of the county or corpora- 
 tion wherein the cause of action arose,^ and none of the defendants 
 reside therein, it can only be directed to an officer of the county 
 or corporation in which the suit is brought.'' Unless then the 
 defendant be not a resident of the State," he cannot in such a case 
 be served with process, except in the county or corporation in 
 which the suit is brought.'^ 
 
 The provision of the statute* limiting jurisdiction of a bill of 
 injunction to the circuit or corporation court of the county or cor- 
 poration in which the judgment is rendered, or the act or proceed- 
 ing is to be done, or is doing, or apprehended, formerly^ had this 
 proviso, " except that a county or corporation court shall not award 
 
 > § 3439; Code W. Va., Ch. 133, § 9. 
 
 2 2 3215; Code W. Va., Ch. 123, | 2; Hull v. Fields & Thomas, 76 Va. 594. 
 
 3 § 3230; Code W. Va., Ch. 124, § 11. 
 
 * Unless the defendant be a railroad, express, canal, navigation, turnpike, tele- 
 graph or telephone company. I 3220. Kailroad, canal, turnpike, telegraph or 
 insurance company. Code W. Va., Ch. 124, | 2. 
 
 'The language of the statute (J 3215; Code W. Va., Ch. 123, I 2; § 3220; Code 
 W. Va., Ch. 124, § 11) applies only to actions, but it has been treated as applicable 
 to suits in equity also. Minor's Institutes, Vol. 4, Pt. 2, p. 1113-1114^1156. 
 
 " Beirne v. Rosser & Turner, 26 Grat. 543. 
 
 ' As to the time and mode of objecting to service made out of the county or cor- 
 poration, see Post, this chapter, ^ 86; Beime v. Kosser & Turner, 26 Grat. 543; 
 Warren v. Saunders, 27 Grat. 259-266; 1 Bart. Law Pr., p. 291. Except to sus- 
 tain a judgment or proceeding the wi-it is not a part of the record unless it be read 
 or oyer be craved. Lambert v. Ensign Mfg. Co., 42 W. Va. 843. ■ 
 
 8 I 3436; Code W. Va., Ch. 133, 5 4. 
 
 " Code 1860, Ch. 179, I 4. 
 
§ 81 THE DIRECTION AND SERVICE OF THE WRIT. 247 
 
 an injunction to a judgment or proceeding of any other court." 
 These words. have been omitted from the present statute, but as 
 formerly constituted, the statute was construed ' to apply only to 
 a bill which had no other object than an injunction, and asked no 
 other relief. 
 
 The Direction and Service of the Writ. 
 
 § 81. Except in the case mentioned wherein the writ may be 
 directed only to an officer of the county or corporation wherein 
 the suit is, and of process against corporations, the writ must be 
 directed to the sheriff of any county or sergeant of any corpora- 
 tion, and although not directed to any officer, if duly served and 
 good in other respects, or if so directed, it be served by any other 
 officer to whom it might lawfully have been directed, it will be 
 deemed valid.^ 
 
 ^ Winston el ah v. Midlothian Coal Co. et als, 20 Grat. 690; Mullen, &c. v. Bayly 
 et ids, 21 Grat. 531. 
 
 '' In the case of Person v. Grier, 66 N. Y. 124; 23 Am. R. 35, it was held, that 
 the service of a summons, in a civil action, upon a non-resident of the State, while 
 attending as a witness in good faith the trial of an action in a court of the State of 
 New York, was irregular, and it was set aside. This decision was based upon the 
 privileges accorded to witnesses, and the learned judge who delivered the opinion 
 of the court cited to sustain him the cases of Norris v. Beach, 2 Johns. 294; San- 
 ford V. Chase, 3 Cow. 381 ; Hopkins v. Ooburn, 1 Wend. 292; Seaver v. Robinson, 
 3 Duer. 622; and Merrill v. George, 23 How. 331. In the case of Van Lieuw v. 
 Johnson (decided in New York in March, 1871), four of the judges of the court 
 of appeals were of the opinion, that both non-resident parties and witnesses were 
 exempt from service of civil process while attending the courts of the State of New 
 York. This is also true where the defendant was fraudulently induced to come 
 within the jurisdiction of the court. Townsend v. Smith, 47 Wis. 623; 32 Am. 
 E. 793. See also Wanger v. Bright, 52 IIJ. Am. Law Times R., Vol. 4, p. 154; 
 Jm re Hubbard, The Reporter, December 22, 1880, p. 816; Blair u. Turtle, Ibid., 
 March 16, 1881, p. 361; Morey v. Morey, Ibid., February 9, 1881, p..l98. "And 
 where it appears that a defendant has been decoyed into a jurisdiction, and there 
 is no direct proof that he has been so decoyed by the plaintiff or his agent, the 
 burden of proof is on the plaintiff to show that it was by no contrivance of his 
 that the defendant was enticed into the jurisdiction." Steiger v. Brown, The Re- 
 porter, December 15, 1880, p. 761. 
 
 A plaintiff serving a summons on a witness brought into the State of Vermont 
 to testify was held guilty of contempt of 'court, and was committed until he should 
 agree to discontinue the suit. In re Healey, 53 Vt. 694; 38 Am. R. 713. See the 
 
248 PROCESS TO COMMENCE SUIT, PROCEEDINGS AT RULES. § 81 
 
 Though directed to the sheriff of a county, or sergeant of a 
 corporation, yet if there be no sheriff or deputy .sheriff in the 
 county, or sergeant or deputy sergeant in a corporation, the coroner 
 or coroners of a county or corporation may serve the writs, or else 
 the court may appomt a crier, who shall be charged with that duty. 
 Even though there be a sheriff or sergeant, and their deputies, yet 
 where, from any cause, it is unfit for them to serve the writ, the 
 court in which the case is pending may appoint some other person 
 to do it.^ In such cases, too, the coroner may serve process, or if 
 there be none, or he is interested in the matter, it may be done by 
 a constable, or the court may appoint a crier for that purpope.^ 
 
 Where an action is brought against a defendant in a county or 
 corporation (unless it be a railroad, canal, telegraph, express, navi- 
 gation, telephone or turnpike company), where the only ground of 
 jurisdiction is that the cause of action arose there, and the writ is 
 directed to another county or corporation, the court will, without 
 plea in abatement, and ex-offido and a fortiori upon motion, abate 
 the process and the suit ; ' but a plea in abatement is necessary 
 where the defence is that the cause of action did not arise in the 
 county or corporation where the action is brought.* 
 
 The writ may be served on any day but Sunday, and even then 
 in attachment suits,'' by delivering a written or printed copy to the 
 
 cases collected and the subject fully discussed in the notes, p. 717 to 722. See 
 Massey v. Colville, 16 Vroom, 119; 46 Am. E. 754. Where it was claimed in 
 defence of a suit on a judgment that it was obtained by fraudulently inducing de- 
 fendant to go into the State where it was rendered, it was held not a valid defence 
 in the absence of facts showing an excuse for not moving to set aside the service 
 and for acquiescing in the judgment. Poel v. January, 35 Ark. 331; 37 Am. 
 R. 27. As to the justification of officers in serving process directed to them, see 
 . Sabbcoolt). Boughton, 5 Wend. 170; 21 Am. Dec. 181; Anle, p. 190 to 209; 30 
 Am. Dec, note, p. 129; Pierson v. Gale, 8 Vt. 500; 30 Am. Dec. 487. 
 
 > U 893, 896. 
 
 ^ Minor's Institutes, Vol. 1, p. 105. 
 
 'Warren v. Saunders, 27 Grat. 268; Garrard v. Henry, 6 Rand. 112, 116; Mantz 
 V. Hundley, 2 H. & M. 312. 
 
 * Middleton v. Pinnell, 2 Grat. 202; Bierne v. Rossei' & Turner, 26 Grat. 537. 
 For form and character of plea in abatement, see Post, § 117. 
 
 ^ 5 2970; Code W. Va., Ch. 106, ? 8. 
 
§ 81 THE DIRECTION AND SERVICE OP THE WRIT. 249 
 
 defendant, or if he be not at his usual place of abode, by deliver- 
 ing a copy and explaining its purport to his wife, or any member 
 of his family over sixteen years of age ; but if no such persons be 
 found, by leaving a copy posted at the front door of his place of 
 abode. 
 
 Process has been held to be properly served where it was left 
 with a person over sixteen years of age at a house in which the 
 party for whom it was intended was a boarder, and not a perma- 
 nent resident.^ 
 
 If the defendant be a corporation, service may be upon its 
 mayor, rector, president, or other chief officer ; or if he be absent 
 from the county or corporation in which he resides, or in which is 
 the principal office of the defendant, if it be a city or town, service 
 may be had on the president of the council or board of trustees, 
 or, in his absence, on the recorder, or any alderman or trustee ; if 
 it be not a city or town, on the cashier or treasurer ; and if there 
 be none such, or he be absent, on a member of the board of di- 
 rectors, trustees, or visitors. 
 
 If a bank of circulation be a defendant, and the suit be in a 
 county or corporation wherein the bank has a branch, although the 
 suit must be against the mother bank,^ service on the president or 
 cashier of such branch bank shall be sufficient. 
 
 If the defendant be some other corporation, whether incorpor- 
 ated by the laws of this or any other State, transacting business in 
 this State, service may be on any agent thereof, or on any person 
 declared by the laws of the State to be an agent ; if there be no 
 such agent in the county or corporation, service of the process may 
 be had by pubKcation once a week for four successive weeks in 
 some newspaper printed in the State, and by posting at the door 
 
 ' Legouine v. The Auditor, 4 Munf. 398. For the mode of serving process, see 
 1 Bart. Law Pr., pp. 263, 264. A person not served with process (unless he ap- 
 pears without it) is not a party to the suit. Boyd et al v. Baynham, 5 Humphreys, 
 386; 42 Am. Dec. 438. For effect of appearance, see 1 Bart. Law Pr. 274. 
 
 ^ Tompkins v. Branch Bank of Va., 11 Leigh, 374; Mason v. Farmer's Bank, 
 12 Leigh, 84. 
 
250 PROCESS TO COMMENCE SUIT, PROCEEDINGS AT RULES. § 82 
 
 of the courthouse on the first day of the next county or corpora- 
 tion court.'' 
 
 Where the suit is against a common carrier^ (other than a cor- 
 poration), for any liabilities as such, it shall be sufficient to serve 
 the process 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 to publish copy of the process as an 
 order of publication against a non-resident is published. 
 
 "The Return of the Writ. 
 
 § 82. Process is required by the statute^ to be returned, within 
 ninety days after its date, to the court on the first day of a term, 
 or in the clerk's office to some rule day, and if not made returnable 
 to a return day it is void ; * and it is also prescribed ° that every 
 officer to whom any order, warrant, or process may be lawfully 
 directed, shall make true return thereon of the day and manner of 
 executing the same, and shall subscribe his name to such return. 
 Where the service is by a deputy, such deputy shall subscribe to 
 the return his own name, as well as that of his principal. 
 
 If the process be a notice, the manner and time of its service 
 must be stated in detail in the return ; but of other process, unless 
 it be against a corpoi'ation, the return of " executed in person," 
 with the name of the officer signed thereto, has been held to be 
 sufficient.* 
 
 1 1 3225 as amended by act of March 2, 1894, Acts 1893-4, p. 614; Code W. 
 Va., Ch. 124, ? 7; § 3226 as amended by act of February 27, 1894, Acts 1893-4, 
 p. 515; ? 3227. By act of March 3, 1898 (Acts 1897-8, p. 833), every incorpo- 
 rated company chartered by the general laws of Virginia, aU of whose officers and 
 directors are non-residents of the county or corporation in which its principal 
 office is located, is required annually to appoint, by power of attorney in writing, 
 some practicing attorney residing there, upon whom process may be served. Such 
 power of attorney is required to be recorded where the principal office of the com- 
 pany is located. 
 
 2 §? 3228, 3231, 3232; Code W. Va., Ch. 124, § 9. 
 
 ^ 2 3220; Code W. Va., Ch. 124, § 2. 
 
 * Kyles V. Ford, 7 Ean. 1. ' Ihid., ?i 6. 
 
 "Barksdale el cds v. Neal., 16 Grat. 314. 
 
§ 82 THE RETURN OF THE WRIT. 251 
 
 If the process be against a corporation, the service must be in 
 the county or corporation in which the person on whom it is served 
 resides, and the return shall show this, and state on whom and 
 when the service was, otherwise the service is not valid/ The 
 requirements of the statute being positive and strict in such cases, 
 it has been thought ^ that an improper service and return of pro- 
 cess against a corporation would be fatally defective, even after 
 judgment by default ; though as against an individual who has 
 been served with process, the defect in the return must be taken 
 advantage of by plea in abatement. 
 
 The endorsements made by the officer, within the province of 
 his functions, are prima facie evidence of what they purport to 
 be ; but they may be contradicted by evidence aliunde? Of any 
 matter, however, beyond the duty of the officer, his return is not 
 only not conclusive, but not even prima facie evidence of the 
 facts it states.* By leave of the court the return of an officer 
 may be amended at any time, even though a suit or motion 
 founded on the original return be then pending, and this may be 
 done by the sheriff or his deputy, and even by a deputy who did 
 not make the original return. ° 
 
 The officer cannot, however, be compelled to amend his return, 
 and the power of the court, for that purpose, is confined to cases 
 of honest mistake.^ 
 
 If at the return day the writ be not returned executed, an aJias 
 may be issued immediately. If there be no return whatever, a 
 
 1 1 3225, as amended by act of March 2, 1894, Acts 1893-94, p. 614; ? 3226, as 
 amended by act of February 27, 1894, Acts 1893-94, p. 515; I 3227; Code W. Va., 
 Ch. 124, I 7. 
 
 ^Barksdale el al v. Neal, 16 Grat. 318; so held in Shend. E. E. Co. v. Ashby's 
 Trustees, 86 Va. 234. 
 
 ' Cunningham v. Mitchell, 4 Eand. 189. 
 
 * Shannon v. McMullin, 25 Grat. 218. 
 
 * Wadsworth, &c. v. Miller, 4 Grat. 99; Stone v. Wilson, 10 Grat. 529; Stotz v. 
 Collina & Co., 83 Va. 429. 
 
 'Bullitt's Ex'ors v. Winstons, 1 Munf. 269; Eucker u. Harrison, 6 Munf. 181; 
 Smith & Eickard v. Triplett & Neale, 4 Leigh, 590; Minor's Institutes, Vol. 4, 
 Pt. 1, p. 839-840. 
 
252 PROCESS TO COMMENCE SUIT, PEOCBEDINGS AT EULES. § 83 
 
 new writ may be issued, but the officer shall execute the first and 
 not the last one, and shall return the former if in his possession ; 
 and if be has it not, shall return the latter with an endorsement 
 of the execution of the former.^ 
 
 The writ may be returned not executed, and then an alias or a 
 pluries summons may issue as may be necessary ; but if it be re- 
 turned no inhabitant, unless the suit be of such a nature as to 
 permit process to be sent to another county, it must abate.^ 
 
 The Order of Pvhliccdion. 
 
 § 83. Process by this means may be served in the following 
 instances : Where the defendant is a non-resident ; where dili- 
 gence has been used without effect to ascertain his whereabouts ; 
 where process has been twice delivered to an officer where the 
 defendant resides, or is, and has been returned without being 
 executed more than ten days ; where the defendant in a suit for 
 divorce is under confinement in the penitentiary ; where a bill in 
 equity states that the names of the persons interested in the sub- 
 ject are unknown, and describes them as such ; where the number 
 of defendants to a suit in equity upon whom process has been 
 served exceeds thirty, and it appears by the bill or other pleadings, 
 or exhibits, that the parties before the court represent interests 
 like the interests of those not served with process ; ^ in suits 
 against common carriers in certain instances ; * and where the suit 
 is against a corporation and there is no officer or agent thereof 
 upon whom service may be had within the county or corporation 
 where the suit is.^ 
 
 1 1 3221; Code W. Va., Ch. 124, § 3. 
 
 2 Minor's Institutes, Vol. 4, Pt. 1, p. 545. 
 
 3 5 3230; Code W. Va., Ch. 124, § 11. 
 
 *l 3228; Code W. Va., Ch. 124, I 9; § 3231; Code W. Va., Ch. 124, ? 12; 
 I 3202; Code W. Va., Ch. 124, § 13. 
 
 5 § 3225 as amended by act of March 2, 1894, Acts 1893-4, p. 614, and by act 
 of February 24, 1896, Acts 1895-6, p. 445; I 3226 as amended by act of February 
 27, 1894, Acts 1893-4, p. 515; ? 3227. See Code W. Va., Ch. 124, §§ 7, 8, 9. 
 
§ 83 THE ORDER OF PUBLICATION. 253 
 
 The right to have process by publication in the cases mentioned 
 must be established by the affidavit of some person > acquainted 
 with the facts, and wliich must be made before or filed with the 
 clerk of the court in which the suit is. In any case, except where 
 the number of parties to a suit who are served with process ex- 
 ceeds thirty, the order of publication may be made either in court 
 or by the clerk of the court at any time in vacation.^ 
 
 The publication must be addressed to the defendants to be sum- 
 moned ; must contain the names of all the parties to the suit ; ^ 
 must command them to appear and defend their interests, and 
 must state the object and character of the suit. It must be exe- 
 cuted by publication once a week for four successive weeks, which 
 means jour weeks successively,^ in some newspaper to be selected 
 by the court or by the clerk, and by posting at the front door of 
 the courthouse on the first day of the next county or corporation 
 court. 
 
 In order to a valid proceeding against a non-resident, the order 
 of publication must appear to have been duly executed, but this 
 may be proven to an appellate court, not only by the formal and 
 direct evidence contained in the record, but also by a recital therein 
 declaring that it was duly executed.* 
 
 The proof of the publication of the order is the certificate of 
 
 1 1 3230; Code W. Va., Ch. 124, § 11. 
 
 ^ Martin v. South Salem Land Co., 94 Va. 28. 
 
 'Minor's Institutes, Vol. 4, pp. 536, 538. In Virginia there must have been 
 twenty-eight days since the first insertion (DiUard v. Krise, 86 Va. 410), but in 
 West Virginia the publication is complete on the fourth issue of the paper contain- 
 ing it, if it be published in the paper once in each successive week, though the 
 four weeks have not actually elapsed between the dates of the first and last publi- 
 cation. Code W. Va., Ch. 124, § 12; 1 Bart. Law Pr. 279, and cases cited. But 
 the court or judge thereof in vacation may, in any case, if the court or judge 
 deem it proper, dispense with such publication in a newspaper. Code, ? 3231. 
 
 *Ibid. 526; Hunter v. Spottswood, 1 Wash. 148; Scott et ah v. Ludington et al, 
 14 W. Va. 887; Gibson v. White, 3 Munf. 94; Craig v. Sebrell, 9 Grat. 133; 
 Moore et al v. Holt, 10 Grat. 291; McCoy's Exor's v. McCoy's Devisees, 9 W. Va. 
 443. 
 
254 PEOCESS TO COMMENCE SUIT, PEOCEEDINGS AT KULES. § 84 
 
 the editor, or the affidavit of any other person;' and the proof of 
 its posting is the affidavit, or perhaps the certificate, of the clerk. ^ 
 
 When such an order shall have been duly posted and published, 
 if the defendants or unknown persons against whom it is entered 
 shall not appear within fifteen days after such publication is com- 
 pleted, the case may be tried or heard as to them ; and no publica- 
 tion shall be thereafter required in any proceeding in court, or be- 
 fore a commissioner, or for the purpose of taking depositions, imless 
 especially ordered by the court, as to such defendants or unknown 
 parties.^ But if he does appear in the suit he is entitled to notice 
 in all the subsequent proceedings.^ 
 
 Where a person not served with process does not appear in 
 the case before the date of the decree or order, he or his repre- 
 sentatives may, within three years from that date, if he be not 
 served with a copy of such decree or order more than a year be- 
 fore the end of the said three yeai's, and if he be so served, then, 
 within one year from the time of such service, petition to have the 
 case reheard, and may plead or answer, and have any injustice in 
 the proceeding corrected. ° 
 
 Bules mid Rule Days. 
 
 § 84. The statute " requires that rules shall be held in the clerk's 
 office of every court on the first and third Mondays in every month, 
 except where a term of the court happens to commence on the 
 first or third Monday in a month, or on either' of the two following 
 
 1 i 3358. Certificate of editor or publisher in West Virginia. Code, Ch. 130, 
 § 32; 1 Bart. Law Pr., p. 281. 
 
 2 Minor's Institutes, Vol. 4, p. 538. 
 
 3 i 3232. 
 
 *1 Bart. Law Pr., p. 281; BurweU, &c. v. BurweU, &c., 78 Va. 574. For the 
 effect of a publication against a non-resident, and the character of decree that may 
 be entered against him, see Ante, Ch. 3, ^ 37. In the absence of an express 
 direction to the contrary, a publication to be a legal notice must be in the English 
 language. Graham v. King, 50 Mo. 22; 11 Am. R. 401. 
 
 5 I 3233; Code W. Va., Ch. 106, ? 25. Five years in West Virginia. 
 
 " § 3236; Code W. Va., Ch. 125, I 1. Kule days in West Virginia on the first 
 Mondays, except in certain cases. See 1 Bart. Law Pr., p. 283. 
 
§ 84 RULES AND RULE DAYS. 255 
 
 days, the rules which otherwise would have been held for the said 
 month on the first or third Monday, shall be held on the last Mon- 
 day in the next preceding week. The rules may continue three 
 days. 
 
 Separate books are kept by the clerk for all the proceedings at 
 rules, at law, and in chancery; and if there happen to be no clerk 
 to take a rule, it stands continued until the next rule day after 
 there is a clerk. 
 
 The proceedings at rules should be regularly and exactly kept, 
 and if there be any mistakes made, although they cannot be cor- 
 rected at another rule day,^ yet it is the duty of the court at the 
 next term to have the correction made, and for that jjurpose to re- 
 mand the cause to the rules in order that proper proceedings may 
 be had therein.^ It has been held,' however, that under the pro- 
 vision of the Code of Virginia ^ it is competent to the court itself 
 to make the corrections without remanding the cause to rules ; but 
 under such circumstances the court thought that the party against 
 whose interests the mistake was made would be entitled to a con- 
 tinuance. * 
 
 In the case of Wall v. Atwell, 21 Grat. 401, it appeared by an 
 inspection of the rule book that the rules had been irregularly 
 kept, and although the statement showing the state of the parties, 
 pleadings, and orders in the case had not, up to the commencement 
 of the term, when a plea in abatement was filed, been kept with 
 the papers of the cause, yet the rules of "common order" and 
 " common order confirmed " were regularly taken, and the cause 
 was regularly placed on the docket when the plea was ofi^ered. 
 Under these circumstances the circuit court permitted a plea in 
 abatement to be filed at the term, but upon appeal the court of 
 appeals reversed the case for that error. 
 
 • Southall's Adm'r v. Exchange Bank, 12 Grat. 315-316. 
 2 Wall V. Atwell, 21 Grat. 404. 
 'Southall's Adm'r v. Exchange Bank, 12 Grat. 312. 
 *? 3293; Code W. Va., Ch. 125, ^ 60. 
 
256 PROCESS TO COMMENCE SUIT, PEOCEEDINGS AT EULES. § 84 
 
 Upon the day to which the summons is returned the bill should 
 be filed,^ although in Virginia, unlike the practice in the United 
 States courts,^ which requires the bill to be filed before process 
 issues, there is no specific requirement to that effect. 
 
 If the bill be filed at the return day, the defendant may appear 
 and yet fail to plead, answer, or demur, in which case a rule may 
 be given him to plead, etc., and if at the next rule day he con- 
 tinue in default, the bill will be taken for confessed as to him, and 
 then or thereafter the plaintiff^ may have the cause set for hearing 
 as to such defendant. Or, if the defendant do not appear, the 
 plaintiff may have a decree nisi against him ; and if at the rules 
 following he continue in default, the bill is taken for confessed, 
 and then or afterwards the cause may be set for hearing by the 
 plaintiff.'' 
 
 • Answers and other pleadings, except in cases of injunction,^ can only be filed at 
 rules or in court. First National Bank v. Huntington Distilling Co. , 41 W. Va. 
 530; 23 N. E. R 792; ZeU Guano Co. v. Heatherly, 38 W. Va. 409; Goddin v. 
 Vaughn, 14 Grat. 102. Pleadings mentioned in decrees as filed and so treated, 
 must be regarded as having been filed. Smith's Ex'x v. Profitt's Adm'r, 82 Va. 
 832. Submission of case for hearing cures aU defects at rules; Konald v. Bank, 
 90 Va. 813. 
 
 n Abbott's U. S. Pr. 184. 
 
 ^ Minor's Institutes, Vol. 4, Pt. 2, p. 1119. The record should properly show 
 the filing of the bill, answer, and other pleadings, but where the record did not 
 show when an amended bill or an answer was filed, yet the decree showed that the 
 court proceeded to hear the cause upon the amended bill and answer, and the 
 appellate court considered them as properly filed. Henderson & Co. v. Alderson, 
 7 W. Va. 217. 
 
 « I 3284; Code W. Va., Ch. 125, I 44; I 3291; Code W. Va., Ch. 125, I 50. 
 Though the defendant does not answer, but appears and excepts to a commissioner's 
 report, it has been held that the court of appeals will regard and act upon so much 
 of the action of the .court as relates to these exceptions (Hartley & Co. v. Eofie, 
 12 W. Va. 401); but where the biU charged fraud, and was taken for confessed as 
 to all the parties but one, who answered denying the fraud, and saying that the 
 deeds were upon a valuable consideration, the court below held that the deeds were 
 fraudulent and decreed a sale of the land. Upon appeal it was held, that as the 
 other persons were parties interested in the question of fraud, and they not having 
 appealed, the person who filed his answer could not question the fraud in the court 
 of appeals. Price v. Thrash, 30 Grat. 515. A decree is not valid if it be entered 
 by default within less than two weeks after the service of the process. 2? 3224, 3287; 
 Eobinson v. Mays, Trustee, &c., 76 Va. 708; ?«8287 as amended by act of February 
 
§ 84 RULES AND RULE DAYS. 257 
 
 The defendant may also appear and answer, and thereupon or 
 thereafter the plaintiif may have the cause set for hearing, either 
 on the answer or upon a general replication thereto, as the plaintiff 
 may prefer. If one 'month elapse after the answer of a defendant 
 is filed without the case being so set, and without exception being 
 filed to the answer, the defendant may have the case set for hearing 
 as to himself.^ A case must be set for hearing against the several 
 defendants as to whom it may mature, and it shall be heard as to 
 them unless their interests be so connected with those of other 
 defendants in the suit that it would be improper to decide upon 
 their interests separately ; and although there be such connection, 
 a defendant as to whom the case has been set for hearing may 
 have an order upon the plaintiff to use due diligence to mature 
 the cause for hearing as to the other defendants, and unless it be 
 so matured within such time as the court may deem reasonable, 
 shall be entitled to a hearing or dismission of it as to him.^ 
 
 If the bill be not filed at the rule day at which the process 
 against him is returnable, or, if it be returnable in term, at the 
 first rule day after the return day, the defendant may appear on 
 such day and give a rule for the plaintiff to file his bill. If he 
 fail to do this at the succeeding rule day, or shaU at any time after 
 the defendant's appearance fail to prosecute his suit, he shall be 
 non-suited, and pay to the defendant, besides his costs, the sum of 
 five dollars.* 
 
 But every non-suit may be set aside by the court at the next 
 term, if the case be in the circuit court, before the last day of the 
 
 4, 1892, Acts 189i-2, p. 246. Thirty days in West Virginia. Code W. Va., Ch. 
 124, I 6. In suits on joint obligations, if one of several defendants appear and 
 disprove plaintiff's case, unless it be on some matter of defence purely personal to 
 himself, plaintiff is not entitled to a decree against the others, but his bill must be 
 dismissed. Ashby v. BeU, 80 Va. 819. 
 
 • In Virginia if one month elapse (? 3291), but in West Virginia if two months 
 elapse (Code W. Va., Ch. 125, ? 50). 
 
 ' g 3292; Code W. Va., Ch. 125, § 51. As to when a complainant may and when 
 he may not dismiss his bill, see Keid el ux v. Stuart's Ex' or, 20 W. Va. 382. 
 
 ' i 3240; Code W. Va., Ch. 125, § 6. 
 17 
 
258 PROCESS TO COMMENCE SUIT, PEOCEEDINGS AT RULES. § 85 
 
 term or the fifteenth day thereof (whichever shall happen first), 
 and if in the corporation court, before the last day of the next 
 term/ 
 
 If one month elapse after the process is returned executed as to 
 any one or more of the defendants without the bill being filed, the 
 clerk shall enter the suit dismissed, although none of the defend- 
 ants may have appeared.^ If, however, the bill is filed before the 
 order of dismissal is entered, it is entirely competent for the de- 
 fendant to waive the objection, and filing an answer and consent- 
 ing to a hearing upon the merits has been held to constitute such 
 a waiver.^ 
 
 Confession of Decree. 
 
 § 85. The former rule which allowed a decree for money by 
 confession to be taken in court in chancery causes for any amount, 
 and without as well as with a bill,* has been enlarged by statute ° 
 so as to permit the defendant to confess such a decree in the clerk's 
 oiEce for so much principal and interest as the plaintiff may be 
 willing to accept a decree for, subject, however, to the control 
 which is given by statute " to the court over all proceedings in the 
 office during the preceding vacation. 
 
 The clerk is required to enter the confession in the order or 
 minute-book, and, subject to the right of the court at the next term 
 to correct mistakes therein, etc., it is as final and valid as if entered 
 in court on the day of such confession. 
 
 The confession may be by an attorney in fact (who need not be 
 
 1 ? 3287; Code W. Va., Ch. 125, ? 46; Minor's Institutes, Vol. 4, Pt. 2, p. 1119. 
 
 2 1 3241. Three months in West Virginia. Code, Ch. 125, g 7. 
 
 ' Buchanan v. King's Heirs, 22 Grat. 418. 
 
 * Thornton v. Smith, 1 Wash. 83; Leftwich v. Stovall, 1 Wash. 305; Minor's 
 Institutes, Vol. 4, Pt. 1, p. 604; Pt. 2, p. 1120. 
 
 6 1 8283; Code W. Va., Ch. 125, § 43. See, also, 1 Bart. Law Pr., § 108; Chappd 
 V. Chappel, 12 N. Y. 215; 64 Am. Deo. 496, notes, p. 501; Am. & Eng. Encyc. of 
 Law, Vol. 12, p. 129q. 
 
 8 1 3293; Code W. Va., Ch. 125, § 60. 
 
§ 86 PLEAS IN ABATEMENT. 259 
 
 a lawyer), acting under power of attorney.* But it can only be 
 made in the clerk's office in vacation, although a confession on the 
 morning of the first day of the term before the time for opening 
 the court was held to be in vacation, and a valid judgment.^ 
 
 Pleas in Abatement. 
 
 § 86. The statute ^ of Virginia provides, that where the declara- 
 tion shows on its face proper matter for the jurisdiction of the 
 court, no exception for the want of such jurisdiction shall be 
 allowed, unless it be taken by plea in abatement ; and the plea 
 shall not be received after the defendant has demurred,^ pleaded 
 in bar, or answered to the bill, nor after a rule to plead or a decree 
 nisi. 
 
 This statute has been held to apply only where the objection is 
 for mere matter of abatement, as where the case is a proper one for 
 a court of equity, but not for the particular court in which the 
 suit is brought j or where the suit ought to be abated by reason of 
 some circumstance attending the situation of the plaintiff, or the 
 defendant, or the like. But it does not apply where the objection, 
 instead of merely tending to direct the proceedings to some other 
 equitable jurisdiction, or to suspend them, or to abate the particu- 
 lar suit, is absolutely in bar of the claim to the interposition of a 
 court of equity, and impugns the right to sue in that court alto- 
 gether.° 
 
 1 Insurance Company of the Valley of Virginia v. Barley's Adm'r, 16 Grat. 
 363. 
 
 ' Brown v. Hume, 16 Grat. 456. The confession of a decree is not a matter to 
 be done at rules as mch, but must be done in vacation. Upon such a confession 
 being made, however, there need be no further proceedings at rules. Lien from 
 first moment of the day (Hockman u Hockman, 93 Va. 455), but now provided 
 by statute (Code, § 3567, as amended by Act of February 24, 1898, Acts 1897-8, 
 p; 507) that the lien shall only be from the time of day when the judgment or 
 decree was confessed. See Post, § 317, note. Cox v. Cox, 95 Va. 173. 
 
 ' ? 3260; Code W. Va., Ch., 125, § 16. 
 
 *The word "demurred" is omitted from the statute of West Virginia. Code 
 W. Va., Ch. 125, § 16. 
 
 ^ Green & Suttle v. Massie, 21 Grat. 356; Poindexter v. BurweU et als, 82 Va. 507. 
 
260 PEOCESS TO COMMENCE SUIT, PEOCEEDINGS AT RULES. § 86 
 
 Hence, where the case appears on the face of the bill to be proper 
 for the cognizance of a court of law only, and not of any court of 
 equity, the statute does not apply; and where the bill alleges 
 proper matter for the jurisdiction of a court of equity (so that a 
 demurrer will not lie), if it appears at the hearing, or even in the 
 appellate court, that the allegations are false, and that such matter 
 does not in fact exist, the bill will be dismissed for want of juris- 
 diction.^ Of the United States courts, because they are courts of 
 limited cognizance, it has been held that they are bound to decline 
 jurisdiction if their want of it in respect to the subject-matter 
 appears in any manner or in any stage of the cause, while lack of 
 jurisdiction in respect of parties may be waived by appearance and 
 pleading to the merits." 
 
 A defect in the writ or return cannot be taken advantage of ex- 
 cept by plea in abatement ; * and while, as we have already seen, 
 where there is no resident defendant, and a writ issues to some 
 other county than that in which the suit is brought, that irregu- 
 larity will be regarded without a plea in abatement,* yet, if the 
 
 ' Jones V. Bradshaw, et ak, 16 Grat. 355; Pollard v. Patterson's Adm'r, 3 H. & 
 M. 67; Hudson v. Kline, 9 Grat. 379; Beckley v. Palmer, 11 Grat. 625; Wash. & 
 N. O. Telegraph Co. v. Hobson & Son, 15 Grat. 122; Green v. Massie, 21 Grat. 
 361; Morgan v. Carson, 7 Leigh, 238; Tapp's Adm'r v. Kankin, 9 Leigh, 478; 
 Poindexter v. BurweU, 82 Va. 507. An objection to jurisdiction maybe taken for 
 the first time in the appellate court, even though there was no demurrer to the bill 
 in the trial court. Collins v. Sutton, 94 Va. 127. The objection being jurisdic- 
 tional may be raised at any time, and the court may, of its own motion, dismiss the 
 bill, though the objection be not raised by the pleadings, nor suggested by the 
 parties. Boston Blower Co. v. Carman Lumber Co., 94 Va. 94. • 
 
 ^Minor's Institutes, Vol. 4, Pt. 1, p. 868; Capron v. Van Noorden, 2 Cr. 126; 
 Brown I). Keene, 8 Pet. 115; Jackson ». Ashton, 8 Pet. 149; Ehode Islands. 
 Massachusetts, 12 Pet. 718; Scott v. Sanford, 19 How. 427; Barney d. Baltimore 
 City, 6 Wall. 280; MaH Co. v. Flanders, 12 WaU. 130. 
 
 " i 3259; but with the right to amend the writ. Code W. Va., Ch. 125, ? 15. 
 Quaere, if a defective return upon a writ sued out against a corporation is not an 
 exception (Barksdale et al v. Neal, 16 Grat, 318) to the requirement of a plea in 
 abatement. For a judgment founded on such a return is held to be void, and that 
 such a service was no service at all. Shend. V. E. R. Co. v. Ashb3r'8 Trustees, 86 
 Va. 234. 
 
 * Warren v. Saunders, 27 Grat. 259. 
 
§ 86 PLEAS IN ABATEMENT. 261 
 
 defence be that the cause of action did not arise in the county or 
 corporation where the suit was brought, and that be the only ground 
 for jurisdiction, it must be met by plea iu abatement.' 
 
 Another matter of defence which must be met by plea in abate- 
 ment is where the plaintiff is not entitled to sue by reason of some 
 personal disability, but this fact does not appear on the face of the 
 bill ; ^ if it does so appear, it may, of course, be met by demurrer. 
 
 The defence of another suit pending for the same matter be- 
 tween the same parties, where it is pleaded to an action at law, 
 has been regarded* (among conflicting authorities) as a plea in 
 abatement ; in equity it is sometimes spoken of as a plea in bar,^ 
 and sometimes as a plea in abatement ; ° but however this may be, 
 such an objection should at least be taken before the hearing.' 
 
 Pleas of matter which has happened since the last continuance, 
 called pleas puis dairein coniiniuince, although in their natures 
 matter of abatement, may, upon the principle of pleading at the 
 first opportunity, be offered at the next term of court, and, of 
 course, cannot be filed at rules ; and contrary to the general rule 
 and provision of the statute governing pleas in abatement, may be 
 filed after a plea in bar.' 
 
 The statute* requires that a plea in abatement shall be verified 
 by oath or affirmation,' and it is sufiicient that the affidavit is that 
 
 ' Robinson's Practice, Vol. 5, p. 37; "Williamson, Trustee, v. Paxton, 18 Grat. 
 504. 
 
 ' Mitford's Chy. PI. 102; Minor's Institutes, Vol. 4, Pt. 2, p. 1147. 
 
 "Eobinson's Practice, Vol. 5, p. 37; Williamson, Trustee, v. Paxton, Trustee, 
 18 Grat. 504; Eobrecht v. Marling, 29 W. Va. 766. 
 
 *Mitford'sCliy. PL, p. 277. 
 
 » Story's Eq. PL, g 735, note. 
 
 * Daniel's Chancery Practice, Vol. 1, p. 632, note. Of the plea of another suit 
 pending, see Post, i 117. See also Am. & Eng. Encyc. of Law, Vol. 1, p. 10. 
 The question of which suit was brought first is to be determined by the date of the 
 service of the writ. Craig v. Hoge, 95 Va. 275; 28 S. E. E. 317. 
 
 'Huntu. Wilkinson, 2 Call. 49; Garrard, &c. v. Henry, &c,, 6 Eand. 117. 
 
 8 ? 3278; Code W. Va., Ch. 125, ? 39. 
 
 » ? 176; Code W. Va., Ch. 13, ? 11. 
 
262 PROCESS TO COMMENCE SUIT, PROCEEDINGS AT RULES. § 86 
 
 affiant believes the plea to be true. This, of course, is not for the 
 purpose of admitting it as proof, but only to warrant the court in 
 permitting the plea to be filed.^ 
 
 The general rule is, that the plea in abatement must give to 
 the plaintiff a better writ ; that is, it must furnish the means of 
 correcting the plaintiff's mistakes so that he may avoid them in 
 instituting his new proceeding. Thus, if it be to the jurisdiction 
 of the court, it ought to show what other court has jurisdiction ; 
 and where the objection is made on the ground of residence, or 
 that the contract was not made in the county or corporation where 
 the suit was brought, unless the defendant be a non-resident of 
 the State,^ or the' writ in a suit is issued to another county than 
 that in which it is brought where none of the defendants reside 
 therein,^ the plea must not only state that the defendant did not 
 reside in the county or corporation in which the suit was brought, 
 and that the cause of action or any part thereof did not arise 
 therein, but must further state where the defendant does reside 
 within the Commonwealth, and perhaps the county or corporation 
 wherein the cause of action did arise.* 
 
 The following are declared ^ to be exceptions to the rule requir- 
 ing the plea in abatement to give a better writ: Where the defence 
 is the absolute disability of the person to sue or be sued ; the non- 
 tenure of land by the defendant ; disclaimer by the defendant of 
 any title to the subject of the suit ; the pendency of a prior suit ; 
 and where the matter of the plea is specially in the knowledge of 
 the plaintiff himself, as is his own name or signature. 
 
 It is also laid down as a criterion, to distinguish whether a ma1> 
 
 ' Minor's Institutes, Vol. 4, Pt. 1, p. 625. For forms of pleas in abatement, 
 see Ibid., p. 1460-1462, and of replications thereto, see IHd. 1484-1485; 1 Bart. 
 Law Pr., p. 289. 
 
 ' Beime v. Kosser & Turner, 26 Grat. 541. 
 
 ' Warren v. Saunders, 27 Grat. 265. See also the rule fixed by statute where the 
 matter of abatements is the non-joinder of one as co-defendant. § 3262; Code 
 W. Va., Ch. 125, I 17. 
 
 * Minor's Institutes. Vol. 4, Pt. 2, p. 1057. 
 
 ^ Minor's Institutes, Vol. 4, Pt. 2, p. 1058. 
 
§ 87 AMENDMENTS AT EtJLES. ^63 
 
 ter should be pleaded in abatement or bar, that a defendant may 
 give a better writ ; the ability to do so being regarded as sufficient 
 to determine that the matter of defence should be set up by plea 
 in abatement. But this rule is not of very certain application.' 
 
 Amendments at Rules. 
 
 § 87. It is provided by statute^ that the plaintiff may of right 
 amend his bill before the defendant's appearance, and notwithstand- 
 iag such appearance, he may, at any time in the vacation of the court 
 wherein the suit is pending, file in the clerk's office an amended or 
 supplemental biU, or bill of revivor ; whereupon the same pro- 
 ceedings may be had as if leave to file it had been previously ob- 
 tained in court ; but the court, on the motion of a defendant, made 
 at the term to which process to answer the same is returned executed 
 on him, or, if it be returnable to rules, at the first term after it is 
 so returned, may dismiss such amended or supplemental bill, or 
 bill of revivor. 
 
 As a general rule, the court will, at any time before the hearing, 
 grant leave to amend where the bill is defective as to parties, or in 
 the mistake or omission of any fact or circumstance connected with 
 the substance of the bill, or not repugnant thereto. This amend- 
 ment may be made by common order before answer or demurrer, 
 and afterwards by leave of the court.^ 
 
 1 Minor's Institutes, Vol. 4, Pt. 2, p. 1059. 
 
 ' I 3253; Code W. Va., Ch. 125, § 12. 
 
 ' Holland and Wife v. Trotter, 22 Grat. 139. On the subject of parties to amended 
 and supplemental bills, and the necessity of serving process on them, see Ante, Ch. 
 3, § 41. On the nature and frame of such bills, see Post, ^ 105, 106, and Mason 
 II. Nelson, 11 Leigh, 227; Parrill v. McKinley, 9 Grat. 1; Stephenson v. Taverners, 
 9 Grat. 398; Smith v. Smith, 4 Band. 95; Boykin's Devisees v. Smith, 3 Munf. 
 102; Daniel's Chy. Pr., Vol. 2, p. 1534; J6id., Vol. 1, p. 425, and note (ed. 1871); 
 Shields v. Barrow, 17 How. 130; Snead v. McCoull et at, 12 How. 407; Belton v. 
 Apperson et cd, 26 Grat. 212; Lambert et tih v. Jones et ah, 2 P. & H. 163; Sands' 
 Suit in Equity, § 363. 
 
CHAPTER V. 
 
 BILLS IN CHANCEEY. 
 
 f 88. The Matter of the BUI. 
 
 I 89. The Frame of the BUI. 
 
 § 90. Original and other BUls. 
 
 § 91. Ci-editors' Bills. 
 
 § 92. BUls Marshalling Assets. 
 
 ? 93. BiUs to Surcharge and Falsify 
 
 Accounts. 
 § 94. BUls of Interpleader. 
 ^ 95. Bill Praying a Certiorari. 
 J 96. BUls Quia Timet. 
 I 97. BUls of Peace. 
 § 98. BUls to Perpetuate Evidence. 
 
 ? 99. BUls for Partition. 
 
 \ 100. BUls of Eevivor. 
 
 I 101. Cross BUls. 
 
 I 102. BUls for Discovery. 
 
 \ 103. BUI for Divorce. 
 
 I 104. BUls for Lost Instruroents. 
 
 i 105. Amended BUls. 
 
 I 106. Supplemental Bills. 
 
 i 107. BUls of Review. 
 
 § 108. Petitions for Rehearing. 
 
 I 109. Petitions Generally. 
 
 The Matter of the Bill. 
 
 § 88. A bill in chancery is a written presentation to a court of 
 equity of a complaint, for the redress of which there is none, or 
 an inadequate remedy provided at law, and coupled therewith a 
 prayer for appropriate relief. 
 
 It must contain a clear, certain and succinct ^ narrative of the 
 subject of litigation, and of the relations of the parties to the suit 
 (both complainants and defendants) thereto, and must specify the 
 peculiar action which the court is asked to take in the premises, 
 and contain also a prayer for such other and general relief as, 
 under the circumstances of the case, it shall appear that the parties 
 are entitled to. 
 
 To render a bill not demurrable, it is essential that it shall show 
 the rights of all the plaintiffs,^ in what way they are injured, and 
 
 1 Verbosity is to be avoided, and against an exaggerated case of it, the court ivUl 
 grant relief. WUliams v. Sexton, 19 Wis. 42. A mere abstract question wiU not 
 be passed on by the court. WUliams v. Hagood, 8 Otto, 72. For the rules of 
 certainty and clearness requisite in all pleadings, see 1 Bart. Law Pr. 299; Am. & 
 Bng. Encyc. of Law, Vol. 18, p. 567; Universal Life Lis. Co. v. Devore, 83 Va. 267. 
 
 2 Minor-' s Institutes, Vol. 4, Pt. 2, p. 1148. 
 
§ 88 THE MATTER OP THE BILL. 265 
 
 that they have just claim to the thing demanded, or such a pres- 
 ent existing interest in it (however small that may be) as entitles 
 them to sue.' 
 
 The bill must also show that the defendants are in some way 
 liable to the plaintiff's demand ; that there is privity between them ; 
 that they have an interest in the subject of the suit,^ or are officers 
 of a corporation defendant ; and if the right claimed is founded 
 on the fact of the defendant's notice thereof, it must be distinctly 
 charged ; ^ and to admit evidence to prove them all, these matters 
 must plainly appear on the face of the bill,^ constituting such an 
 equity, embracing the whole subject," as will warrant the court in 
 granting the relief prayed.^ 
 
 If the bill does not state a case proper for relief in equity, the 
 court will dismiss it at the hearing, though no objection has been 
 taken to the jurisdiction by the defendant in his pleadings.' 
 
 The bill must not contain superfluous and impertinent allegations 
 or scandalous matter, and where such exists the court will order it 
 to be expunged at the cost of the complainant or his counsel ; but 
 in determining what is irrelevant or scandalous, the court will look 
 to the necessities of the cause, and if the matter be pertinent it 
 will not be expunged, however harsh or grave the charge may be ; 
 but if in a technical sense it is scandalous, it must be impertinent.* 
 The objection to either of these faults must be made in the first 
 stage of the cause ; but while for scandal it may be referred to a 
 
 1 Daniel's Chy. Pr., Vol. 1, pp. 314 to 317; Story's Eq. PI., § 239 to ? 263; 
 Townshend v. Duncan, 2 Bland. 45; Vanbibber v. Beime et als, 6 W. Va. 168. 
 
 "Daniel's Chy. Pr., Vol. 1, p. 321-322. 
 
 'Stor/sEq. PI., §263. 
 
 * Daniel's Chy. Pr., Vol. 1, p. 327. 
 
 '■Ibid., p. 330. 
 
 'Harding?). Handy, llWheat. 103; Campbell ii. Bowles' Admr,&c., 30Grat. 652. 
 
 'Hudson V. Kline, 9 Grat. 379; Salamone v. Keily, 80 Va. 94; WiUisv. WiUis, 
 42 W. Va. 525; 26 S. E. E. 516; Crickard v. Crouch, 41 W. Va. 503; Boston 
 Blower Co. v. Carman Lumber Co., 94 Va. 94; Collins and Others v. Sutton, 94 
 Va. 127. 
 
 *For what is scandalous or irrelevant, see Daniel's Chy. Pr., Vol. 1, p. 347 to 
 349. 
 
266 BILLS IN CHANCERY. § 88 
 
 master to strike out, at any time, for impertinence it cannot be 
 referred after the defendant has answered.^ Neither fault is a 
 ground of demurrer, but the mode of objecting is by exception, 
 which will either be disposed of directly by the court itself, or on 
 reference to a commissioner.^ 
 
 One object to be attained by proceedings in chancery is to pre- 
 vent a multiplicity of suits, and hence several persons who have a 
 common interest arising out of the same transaction, although their 
 interest, strictly speaking, is not joint, may unite in one suit, and 
 may even be compelled to do so by the defendant.' Familiar in- 
 stances have heretofore been referred to in cases of creditors' bills, 
 suits by stockholders, &c. ; and, in one case,* where five plaintiffs 
 were interested in two judgments, and the fifth plaintiff was alone 
 interested in another judgment, it was held that they could properly 
 proceed together in one bill to undo certain fraudulent acts of their 
 common debtor. ° 
 
 Where there are several defendants, the bill must relate to ma1> 
 ters of the same nature, which have a connection with each other, 
 and in which all the defendants are more or less concerned.* 
 
 • Story's Eq. PL, § 266 to ? 270. ^ Daniel's Chy. Pr., Vol. 1, p. 350, and note. 
 
 'Eager, &c. v. Price, &c., 2 Paige, 333; Bobinson, &c. v. Smith, &c., 3 Paige, 
 231; WendeU v. Wendell, &o., 3 Paige, 509. See Bosher v. K. & H. Land Co., 
 89 Va. 457. A bill by a number of stockbolders against a corporation, alleging 
 fraud in obtaining subscriptions, &c., was held not multifarious, because each 
 complainant set forth a different claim. Carey et cd v. Coffee Stemming Machine 
 Co., Va.; 20 S. E. K. 778; Bader v. Bristol Land Co., 94 Va. 766. But a bUl 
 in equity was held bad, as multifarious, when' it showed that the complainants' in- 
 terests were antagonistic, as where creditors and stockholders united in the bill ask- 
 ing for a cancellation of subscriptions to stock as to the stockholders, and an enforce- 
 ment of the same as to the creditors. Brown et al v. Bedford City Land & Imp. Co., 
 91 Va. 31; Nunally v. Strauss, 94 Va. 255. "Whether or not a bill is multifarious 
 depends upon its allegations and not upon its prayer." Not multifarious when the 
 matters of litigation can be properly embraced in one suit and the rights of all 
 parties be conveniently settled and the defendants suffer no prejudice. Haskins 
 Wood, &c. Co. V. Cleveland, &c. Co., 94 Va. 349. 
 
 »Brinkerhoff, &c. v. Brown, &c., 6 Johns. Chy. E. 139. 
 
 'See also Beid et als v. Gifford et ah, 1 Hopkins' Chy. B. 416; Bobinson u. 
 Smith, &c., 3 Paige, 222. 
 
 « Fellows, &c. V. FeUows, &c., 4 Cow. 682; West v. BandaU, &c., 2 Mason, 181. 
 
§ 88 THE MATTEE OP THE BILL. 267 
 
 The suit must not, however, be open to the charge of multifari- 
 ousness, which means asserting in the same bill distinct and sepa- 
 rate rights against one defendant, or the demand of several matters 
 of distinct natures against several defendants.^ 
 
 The following are some of the instances of what has been held 
 to be multifariousness : For purchasers of different lots to join in 
 one bill for specific performance against the vendor ; for a vendor 
 in such a case to file one bill against several purchasers ; in a bill 
 for specific performance to include a prayer for relief against third 
 persons who claim no interest in the estate, and who are uncon- 
 nected with the sale ; where a bill to foreclose a mortgage by 
 husband and wife was amended so as to subject other real property 
 of the wife's separate estate ; ^ to file a bill, against two corpora- 
 tions to establish eight charitable bequests where one of the cor- 
 porations was interested in only seven of them, and the other 
 
 ' Dilly V. Doig, 2 Ves. Jr. 486; Atty. Gen. v. CJorporation of Cannarthen, Cooper's 
 Chy. E. 30; Whaley v. Dawson, 2 Sch. & Lef. 367; Saxton v. Davis, 18 Ves. 72;- 
 Stuart's Heirs, &c. v. Coalter, 4 Kand. 74; Shirley v. Long, &c., 6 Eand. 764; 1 
 Daniel's Chy. Pr., 334 to 342 and notes. To support the objection of multfarious- 
 neaa— first, the different grounds of suit must be wholly distinct; second, each ground 
 must be sufficient as stated to sustain a bUl. Huffi). Thrash, 75 Va. 546. See 
 also Petty v. Fogle, 16 W. Va. 497; Walker v. Powers, 104 U. S- R- 245; Brown 
 V. Buckner, 86 Va. 612; Thomas v. SeUman, 87 Va. 683; Hutchison's Adm'r v. 
 Mershon's Adm'r, 89 Va. 627; Segar v. Parish, 20 Grat. 679; Almond v. Wilson, 
 75 Va. 623; HiU's Adm'r v. HOI et ah, 79 Va. 592; Batohelder v. White, 80 Va. 
 103; Pyles v. Eiveiside Furniture Co., 30 W. Va. 123 ; Korne v. Kome, 30 W. 
 Va. 1; Withers' Adm'r v. Sims, 80 Va. 651; Sadler el ah v. Whitehurst el ah, 83 
 Va. 46; Universal Life Ins. Co. v. Devore, 83 Va. 267; Washington City Savings 
 Bank v. Thornton, 83 Va. 157; Bosher el ah v. E. & H. Land Co., 89 Va., 455; 
 Alexander v. Alexander, 85 Va. 363; Wells v. Sewell's Point Guano Co., 89 Va. 
 708; Bank v. Bates, 20 W. Va. 210. The objection of multifariousness is discour- 
 aged by the courts when it would defeat instead of promoting the ends of justice. 
 Marshall v. Means, 12 Ga, 61; 56 Am. Dec. 444. For the general rules as to 
 multifariousness, see Carskadon v. Minke, 26 W. Va. 729; Crickard v. Crouch's 
 Adm'rs, 41 W. Va. 503; 23 S. B. E. 727; Moore v. McNutt, 41 W. Va. 695. In 
 Jordan v. Liggon, Va., 4 Va. Law Eeg. 181, while stating that no general rule 
 can be laid down as to what constitutes multifariousness, yet this test is given: "If 
 justice can be conveniently administered by the mode of proceeding adopted, the 
 objection of multifariousness will not lie, unless it is so injurious to one party as to 
 make it inequitable and unjust to accomplish the general good at his expense." 
 
 » Linn v. Patton, Trustee, 10 W. Va. 187. 
 
268 BILLS IN CHAJSrCEBY. § 88 
 
 corporation in the eighth ; where a creditor by his bill sought an 
 account against an executor and trustee of the testator's estate, 
 and also to set aside a sale made by the executor and trustee to a 
 purchaser ; where the suit was for a partition, and also to set aside 
 a lease made by the plaintiff to a third person of part of the 
 estate ; where an author filed one bill against several booksellers 
 for selling the same spurious edition of his work ; where two 
 plaintiffs brought a joint demand and a several demand against 
 the same person ; where several distinct holders of script or shares 
 in a loan sued on behalf of themselves and all others to have their 
 subscriptions refunded ; ' where a bill was filed for a discovery, 
 and a commission to examine witnesses abroad in aid of a defence 
 at law to two separate actions, brought by the same plaintiff 
 against the party asking the aid of the court, for two separate 
 libels ; where a bill impeached a will on account of the alleged 
 incapacity of the testator, and sought to take testimony de bene esse 
 •in a suit already brought, and also to perpetuate the testimony of 
 witnesses ; ^ where the bill included many defendants who had 
 distinct interests ; * where one formed a partnership with two 
 persons, and, after its dissolution, a new partnership with one of 
 them, and then filed one bill charging that both partnerships were 
 indebted to him, and asking a settlement of their accounts ; * 
 where in a bill for foreclosure the complainant made a person who 
 claimed adversely to both the mortgagor and mortgagee a party, 
 and sought in that suit to litigate and settle his rights ; ° where 
 
 ' But the contrary was held in Bosher et ok v. 'R. & H. Land Co., 89 Va. 455, 
 at least this fax, that several distinct holders of script or shares in a corporation, 
 when their subscription was obtained by fraud, false representations, etc., may 
 unite in one suit to rescind the contract and to recover back money paid on the 
 subscriptions, but one may not sue in behalf of himself and such others as may 
 choose to come in. 89 Va. R. , p. 462. 
 
 2 Stor/s Eq. PI., I 272 to 283. 
 
 ' Stuart' s Heirs v. Coalter, 4 Eand. 74. 
 
 * Dunn V. Dunn et ais, 26 Grat. 291. 
 
 'Dial V. Eeynolds, 6 Otto, 340. See also Shelden el als v. Armistead's Adm'r 
 el cds, 7 Grat. 264; Hill v. Bowyer et als, 18 Grat. 364; Segar etal v. Parish el ah, 
 20 Grat. 672. 
 
§ 88 THE MATTER OF THE BILL. 269 
 
 the complainant both claimed to own the property and yet sought 
 to subject it to the payment of his judgment against the defen- 
 dants ; ^ where in one biU it was sought to have a decree for specific 
 performance, for damages, for payment of an alleged subscription 
 to stock and for the administration of the assets of a company ; ^ 
 where the bill sought to ascertain and subject the property of a 
 firm, of the individual members thereof, and also that of certain 
 devisees of one of the members of the firm ; ^ where the bill set 
 forth two policies of insurance, one not paid for and claimed to 
 have been surrendered, and the other not issued, but which, it was 
 claimed, ought to have been issued ; ^ where the bill was to obtain 
 a personal decree against the defendant as endorser of notes, to 
 obtain a like decree agaiust him for breach of warranty, to quiet 
 title to land, and to restrain defendants from cuttiug timber.^ 
 
 On the other hand, the following instances have been held not 
 to constitute multifariousness or misjoinder, which are often used 
 as synonymous terms : 
 
 Where the bill joined two good causes of complaint growiag out 
 of the same transaction, where all the defendants were interested 
 in the same claim of right, and where the relief asked for in rela- 
 tion to each was of the same general character ; where although 
 the suit embraced two distinct subject-matters, wholly disconnected 
 with each other, yet one of them was clearly without the jurisdic- 
 tion of a court of equity ; where the parties had one common 
 interest touching the matter of the bill, although they claimed under 
 distinct titles and had independent interests ; where several judg- 
 ment creditors joined in one bill against their common debtor and 
 his grantees to remove impediments to their remedy created by the 
 fraud of the debtor in conveying his property to several grantees, 
 although they took by separate conveyances, and no joint fraud in 
 
 1 Walker v. Powers, 104 U. S. E. 245. 
 
 2 WeUa V. SeweU's Point Guano Co., 89 Va. 711. 
 ' Sadler el als v. Whitehurst, 83 Va. 47. 
 
 * Universal Life Ins. Co. v. Devore, 83 Va. 267. 
 
 s Washington City Savings Bank v. Thornton, 83 Va. 157. 
 
270 BILLS IN CHANCBKY. § 88 
 
 any one transaction was charged against them all ;' where infants, 
 by their next friend, filed a bill against their guardian, first to sur- 
 charge and falsify his settled account, and to have him removed, 
 and, second, to have a sale of the land ; because the court held that 
 it could not sell the infant's land on a bill filed by them, and as 
 no relief in that part of the bill could be given, the court would 
 consider the case as if that part of the bill was not in it j ^ where 
 the bill involved but a single matter, and affected all the defend- 
 ants alike ; where in a suit against an administrator for an account 
 he was also made a party in his own right f where both plaintiffs 
 were asserting claims out of a common fund derived from a com- 
 mon source under a common instrument f where the bill sought to 
 subject both realty and personalty to a judgment and an execution f 
 where one holding an undivided interest in land, sought to subject 
 the other interest to the payment of debts due to him ; ^ where sev- 
 eral stockholders joined in one bill to rescind contracts for sub- 
 scriptions to stock and to compel repayments ; ' where the bill 
 sought to subject land alleged to have been fraudulently conveyed 
 to several persons, all of whom were made parties to the suit ; ' 
 where the bill united as plaintiffs the heirs of the persons, all be- 
 ing interested in the subject of the controversy, although all were 
 not interested in the entire subject ; ' where the title of all the 
 parties depended upon the construction of the same will ; '_" where 
 the defendant was a party to some, but not to all the judgments, 
 but where, however, it appeared that he was interested in the sat- 
 
 ' Story's Eq. PI., ? 283 to 287; Vann v. Hargett, 2 Dev. & Bat. 31; 32 Am. 
 Dec. 689; Conunonwealth v. Drake, 81 Va. 305. 
 
 2 Snavely v. Harkrader, 29 Grat. 112. See also Nulton et ah v. Isaacs ei ais, 30 
 Grat. 726. 
 
 5 Huff J). Thrash, 79 Va. 549. 
 
 * Brown v. Buckner, 86 Va. 617. 
 
 5 Thomas v. Sellman, 87 Va. 686. 
 
 ^Hutchison's Adm'r v. Merahon's Adm'x, 89 Va. 627. 
 
 ' Bosher et ofe d. E. & H. Land Co., 89 Va. 455. 
 
 " Almond v. WUson, 75 Va. 623; Baohelder v. White, 80 Va. 103. 
 
 » Segar et ah v. Parish etai, 20 Grat. 678 ; Hill's Adm'r v. Hill et ai, 79 Va. 592. 
 
 " Withers' Adm'r v. Sims et ah, 80 Va. 651. 
 
§ 88 THE MATTER OP THE BILL. 271 
 
 isfaction of them all ;* where the bill made charges of difi'erent 
 acts to same fraud in one transaction f where the bill contained a 
 prayer for alternate relief inconsistent with the prayer for specific 
 relief f where the bill sought to subject property to an attachment, 
 and also to have a confessed judgment lien on the property de- 
 clared void f where a bill was filed by stockholders of a corpora- 
 tion seeking recovery of a debt from another corporation, and also 
 to have its debts paid and the distribution of the balance of the 
 sum to be recovered among the stockholders of the plaintiffs' cor- 
 poration f where the settlement of two estates was asked by the 
 same bill, but the accounts were so mingled as to make a separate 
 settlement difficult f where the bill sought to enjoin a sale under 
 execution of two several plaintiffs at law, but where the same 
 property was levied on and complainant was asserting one title to 
 all •] where all the complainants were creditors of the same party 
 and were seekiug to subject the same fund to their claims.^ 
 
 These instances are given to form some guide for avoiding the 
 objection to multifariousness in pleading, because the authorities 
 agree that it is utterly impossible to lay down any rule or abstract 
 propositions as to what constitutes multifariousness, which can be 
 made universally applicable, and the only way of reconciling con- 
 flicting authorities has been declared to be, " by adverting to the 
 fact that, although the books speak generally of demurrers for 
 multifariousness, yet in truth such demurrers may be divided into 
 two distinct kinds. Frequently the objection raised, though termed 
 multifariousness, is in fact more properly misjoinder ; that is to 
 say, the cases or claims united in the bill are of so different a 
 character that the court will not permit them to be united in one 
 
 ^ Alexander v. Alexander, 85 Va. 353. 
 
 '^ Pyles V. Riverside Furniture Co., 30 W. Va. 123. 
 
 * Kome V. Kome, %<> W. Va. 1. 
 
 * Stewart v. Stewart, 27 W. Va. 167. 
 
 5 Crumlish v. B. R. Co., 28 W. Va. 623. 
 
 " Anderson v. Piercy, 20 W. Va. 282. 
 
 ' Bridges v. Philips, 25 Ala. 136; 60 Am. Dec. 495. See note, p. 497. 
 
 8 Comstock «. Eayford, 1 Smedes & Marshall, 423; 40 Am. Dec. 102. 
 
272 BILLS IN CHANCEEY. § 88 
 
 record. But what is more familiarly understood by the term 
 multifariousness, as applied to a bill, is where a party is able to 
 say he is brought as a defendant upon a record with a large por- 
 tion of which, and of a case made by which, he has no connection 
 whatever." ^ 
 
 In every case it is well to remember that the objection of mul- 
 tifariousness is discouraged by the courts where it would defeat 
 instead of promoting the ends of justice.^ 
 
 The proper way to take advantage of multifariousness in a bill 
 is by demurrer, and it is too late to object on that ground at the 
 hearing,^ or after a consent order of reference.* The demurrer 
 may, however, be contained in the answer, and although it is too 
 late for the parties to object at the hearing, the court may take the 
 objection svm sponte, for it is not bound to allow a bill of this sort, 
 although the parties may not take the objection in season." 
 
 Another error in the matter of bills in chancery which the 
 authorities point out to be avoided is the undue divisibility or 
 splitting up of a single cause of action, and thus multiplying 
 suits ; and courts of equity will not permit a suit to be brought 
 for a part of a matter only, where the whole is the proper subject 
 of one bill. Thus it will not permit a party to bring a suit for a 
 part of one entire account, but will compel him to unite the whole 
 in one bill." 
 
 'Christian, J., in Snaveley i). Harkrader et ah, 29 Grat. 125, quoting from 1 
 Daniel's Chy. Pr. 334-335; Story's Eq. PL, ? 275-276 and notes; Johnson v. 
 Brown, 2 Humph. 327; 37 Am. Dec. 556; HiU v. Hill, 79 Va. 592; Washington 
 City Bank v. Thornton, 83 Va. 157; Alexander v. Alexander, 85 Va. 363; Staude 
 et al V. Keck ei al, W. Va. ; 24 S. E. E. 228. 
 
 2 Marshal v. Means, 12 Ga. 61; 56 Am. Dec. 444. 
 
 5 1 Daniel's Chy. Pr., p. 346; Briggs v. Sperry, 95 U. S. E. 401. 
 
 * Kittenhouse v. Haman, 7 W. Va. 380. Held that objection on the ground of 
 multifariousness cannot be made on a motion to dissolve an injunction. Beall v. 
 Shauld et al, 18 W. Va. 258. 
 
 s Story's Eq. PI., ^ 271, note; 1 Daniel's Chy. Pr., p. 346; Dunn v. Dunn et als, 
 26 Grat. 296. 
 >= Story* sEq. PI., ? 287. 
 
§ 89 THE FRAME OF THE BILL. 273 
 
 The Frame of the Bill. 
 
 § 89. The frame of the bill, for convenience of consideration, 
 may be divided into the following parts : I. The address ; II. 
 The names of the complainants ; III. The statement of the case ; 
 IV. The injury complained of; V. The pretensions of the defen- 
 dants; VI. The appeal to equitable relief; VIL The names of 
 the defendants and the demand that they be compelled to answer ; 
 VIII. The prayer for relief; IX. The prayer for process. 
 
 I. The Address. — The bill is addressed to the judge of the 
 court wherein the suit is brought,' and it may include his name or 
 merely his official position. This is properly the commencement 
 of the bill, yet it has been held to be properly no part of the bill, 
 and it cannot be used to supply defects in the pleadings.^ 
 
 II. The Names of the Complamants. — In the United States 
 courts the bill must give not only the complainants' names, but 
 the names of the States of which they are citizens, and also any 
 other fact upon which jurisdiction depends.^ The usual form of 
 bills both in the Federal and State courts includes the places of 
 the complainant's residence,* although in the State courts this is 
 not necessary.* 
 
 ' Rule 20 of the courts of equity of the United States — Desty's Fed. Procedure, 
 p. 280 — ^prescribes the following form for commencing bills in those courts: "To 
 
 the judge of the circuit court of the United States for the district of . A. B., 
 
 of , and a eitken of the State of , brings this his biQ against C. D., 
 
 of ■, and a citioin of the State of -, and E. P. , of , and a citizen 
 
 of the State of . And thereupon your orator complains and says," &c. 
 
 ' Jackson et al v. Ashton, 8 Peters, 148. 
 
 'Express Company «. Kountze Brothers, 8 Wal. 342; Abbott's U. S. Practice, 
 Vol. 2, p. 67. A citizen of the District of Columbia is not a citizen of a State, so 
 as to give jurisdiction for that cause. Barney v. Baltimore City, 6 Wal. 280. If 
 the jurisdiction of the circuit court of the United States does not appear on the 
 face of the record in some form, the case cannot be maintained. Peper v. Fordyce, 
 119 U. S. E. 469. 
 
 * Where the suit is for or against a number of persons suing or sued as a class in 
 the United States courts, their cittzenship must be averred. Godfrey v. Terry, 7 
 Otto 171. And it is the citizenship, and not merely the residence, that must be 
 averred. Eobertson v. Cease, 7 Otto, 646. ^ Minor's Institutes, Vol. 4, p. 1122. 
 
 18 
 
274 BILLS IN CHANCEEY. § 89 
 
 The bill must be in the name of those who have cause of com- 
 plaint, and not in that of an agent ; ^ and if a party sues in his 
 natural, and also in one or more fiduciary, characters, he should be 
 described in all of them ; ^ but it has been held, that where one 
 sues as executor, he need not necessarily so describe himself in 
 this part of the bill, although in the stating part it is essential for 
 it to appear that he has duly proved the will, or obtained admin- 
 istration, as the case may be.^ 
 
 If the complainant be an infant, the bill must be in his name, 
 by his guardian or next friend,* unless the cause of action accrued 
 to the guardian, in which event the bill must be in the guardian's 
 name/ 
 
 A lunatic, for whom no committee has been appointed, may sue 
 by his next friend ; but where one has been appointed, the bill 
 must be in the name of the committee.' Where, however, the bill 
 was in the name of " C, who being a person of unsound mind, sues 
 by his next friend and committee, P," ' it was held to be sub- 
 stantially a suit by the committee in the name of the lunatic, and 
 the bill was sustained. 
 
 A married woman formerly sued also by her next friend, but 
 unlike the case of infants and lunatics,^ no one could be nam^ed her 
 next friend without her consent,' but now, if adult, she sues in her 
 own name and not by next friend.^" 
 
 1 Jones V. Hart's. Ex'ors, 1 H. & M. 471; Ante, Ch. 3, ? 65; Cook „. Dorsey, 
 38 W. Va. 196. See, for form- prescribed in West Virginia, C!ode, Ch. 125, § 37. 
 
 ' Pennington v. Hanby et ah, 4 Munf. 144. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 359. But see Capehart, Ex" or, &c. v. Hale, € 
 W. Va. 547. See the statute of West Virginia (Code, Ch. 125, § 37) as to the 
 names of the parties defendant in the caption of the biU, and the construction of 
 this section in Cook v. Dorsey, W. Va. ; 18 S. E. B. 468. 
 
 * Stewarts v. Crabbin's Guardian, 6 Munf. 280. 
 
 » Truss V. Old, 6 Band. 556. 
 
 5 Bird's Committer. Bird, 21 Grat. 712. 
 
 ' Cole's Committee v. Cole's Adm'r, 28 Grat. 370; Ante, Ch. 3, § 51-55. 
 
 8^mte, Ch. 3, §51-55. 
 
 'Fulton, &c. V. Kosevelt, 1 Paige, 178; Garliok v. Strong, &c., 3 Paige, 440; 
 Ante, Ch. 3, I 17. On the subject of description of parties, see 5 W. Va. 63. 
 
 w Apt March 3, 1898, Acts 1897-98, p. 744. 
 
§ 89 THE FEAME OP THE BILL. 275 
 
 Where one sues in behalf of himself and others of a similar 
 class, it should be so stated in this part of the bill f- but where a 
 creditor filed a bill to subject the personal and real estate of his 
 deceased debtor to the payment of his debts, saying nothing of 
 other creditors, but praying that an account of all debts and lia- 
 bilities of the estate might be taken, and their priorities fixed, that 
 the amount and value of the real estate might be ascertained, and 
 that all other accounts and orders which are proper might be taken 
 and made, this was held to be a creditor's bUl.^ 
 
 III. The Statement of the Case. — The circumstances of which 
 the subject of the suit consists should be stated bi-iefly, plainly, and 
 positively, for if not stated with sufficient certainty, it may be fatal 
 to the object of the suit.^ 
 
 It is not necessary that the minute details of the case should be 
 stated, but the bill should include enough to give the defendant 
 full information of what he is called on to answer,* and where 
 deeds or other documents are referred to, they need not be set out 
 in haec verba, but only so much thereof as is material to the case 
 need be stated.^ Whatever is essential to the rights of the plaintiff, 
 and is necessarily within his knowledge, ought to be alleged posi- 
 tively ; for it has been held that it is not a sufficient averment of 
 a fact in a bill to state that the plaintiff " is so informed," or to say 
 that one defendant alleges, and the plaintiff believes a statement 
 to be true ; nor is an allegation that the defendant sets up certain 
 pretenses, followed by a charge that the contrary of such pretenses 
 is the truth, a sufficient allegation or averment of the facts which 
 
 1 Daniel's Chy. Pr., Vol. 1, p. 360. 
 
 ^ Duerson's Adm'r v. Alsop et als, 27 Grat. 229. See also Ewing's Adm'r et ais 
 V. Ferguson's Adm'r et ah, 33 Grat. 548; Williams' Adm'r d. Newman, 93 Va. 724. 
 
 ' Story's Eq. PI., I 28, and from ? 242 to P59; Fowler et wx v. Saunders, 4 Call. 
 361; Nash v. Nash et ok, 28 Grat. 686. See alflo Ante, | 88, and notes; Universal 
 Life Ins. Co. v. Devore, 83 Va. 267; Qeaver et ah v. Mathews, 83 Va. 803; Zell 
 Guano Co. v. Hetherly, 38 W. Va. 409. 
 
 * 1 Daniel's Chy. Pr., p. 368; Harding v. Handy, IX Wheat. 103. 
 
 5 Hood V. Inman, 4 Johns. Chy. B. 437. 
 
276 BILLS IN CHANCERY. § 89 
 
 make up the counter statement. A plaintiff may, however, state 
 his case in the alternative.' 
 
 The rule in all cases is, that the allegations of a bill and the 
 proofs in the case must correspond;^ but under the liberal spirit 
 which inclines courts of equity to get over form, and in favor of 
 substance, relief will not be denied unless the case stated and the 
 case found are so materiaUy variant as to prevent a decree in favor 
 of the plaintiff.^ But a court of equity can only decree upon the 
 case made by the pleadings, although the evidence may show a 
 right to a further decree.^ 
 
 The following instances of the application of these rules furnish 
 a better understanding of them : 
 
 Where the bill was filed to enjoin a judgment at law because 
 certain credits had not been allowed, and a deposition was taken 
 to prove that the contract was usurious, there being no allegation 
 of usury in the bill, the testimony was considered irrelevant, and 
 was disregarded.* 
 
 Where the bill sought to rescind a contract because of a de- 
 
 ' Daniel's Chy. Pr., Vol. 1, p. 360; Lingan v. Henderson, 1 Bland. 236. 
 
 ^ Campbell v. Bowles' Adm'r, 30 Grat. 652; Baugher v. Eiohelberger, 11 W. Va. 
 217; Floyd D. Jones, 19 W. Va. 360. 
 
 ' Zane's Devisees v. Zane, 6 Munf. 416; Taylor, Adm'r, &o. v. Bruce, Gilm. 75; 
 Mayo V. Munchie, 3 Munf. 384; Campbell t). Bowles' Adm'r, 30 Grat. 652; Jack- 
 son's Assignees v. Cutwright, &c., 5- Munf. 314; Anthony v. Leftwitch, 3 Band. 
 263; James v. M'Kernon, 6 Johns. E. 543; Woodcock c. Bennet, 1 Cow. 734; 
 Smith V. Smith, 4 Johns. Chy. K. 281. 
 
 * Munday *. Vawter el ah, 3 Grat. 518; Knibb's Ex' or v. Dixon's Ex' or, 1 Band. 
 249; Burley v. Weller et al, 14 W. Va. 264; Gibson and Wife v. Green's Adm'r, 
 89 Va. 526; Kent's Adm'r v. Kent's Adm'r, Ac, 82 Va. 205; Welfley v. Shend. 
 I. L. & M. Co., 83 Va. 768; Potomac Mfg. Co. v. Evans, 84 Va. 722; Staples' 
 Ex' or V. Staples, 85 Va. 81; Bieme et al v. Bay, 37 W. Va. 571; Handlan v. 
 Handlan, 37 W. Va. 486; Boberts et al v. Coleman, 37 W. Va. 143; Fadely v. 
 Tomlinson, 41 W. Va. 606; 24 S. E. B. 645; Eckles v. N. & W. B. B. Co., Va.; 
 25 S. E. E. 545; Putnam v. Day, 22 Wall. 60. "The allegation and the proof 
 must jump together." Keith, P., in Boston Blower Co. v. Carman Lumber Co., 
 94 Va. 100. 
 
 ' Brown D. Toell's Adm'r, 5 Band. 543. But when an usurious transaction is 
 stated in the. bUl, the objection to it may be taken at the hearing, though not relied 
 on in the answer. Chambers v. Chalmers, 4 Gill. & Johns. 420; 23 Am. Dec. 572. 
 
§ 89 THE FRAME OF THE BILL. 277 
 
 ficienqy in the quantity of land sold, and there was no charge of 
 fraud or misrepresentation, the court reftised to rescind on the 
 ground of fraud/ 
 
 Where a bill was filed by creditors to subject certain shares 
 which their debtor had received from his father-in-law at the time 
 of his marriage, and insisting that the shares had become the 
 property of the debtor before the father-in-law made a deed con- 
 veying them for the benefit of his daughter and her children, it 
 was held that as the bill contained no charge that the deed had 
 not been duly delivered, the objection to non-delivery could not 
 be taken advantage of under the bill.^ 
 
 Where an arrangement had been entered into between a creditor 
 and his principal debtor that the latter should have time upon 
 giving collateral security, and the surety filed a bill asking infor- 
 mation as to the details of the arrangement, and praying the benefit 
 of the securities, which were the fruits of it, but not denying his 
 liability for the debt, it was held that the surety could not insist 
 at the trial that the facts proved in the case entitled him to a 
 discharge.^ 
 
 Where the bill did not in terms allege that the plaintiff had no 
 knowledge of an unrecorded deed of trust when he purchased the 
 land, and notice of it was not affirmatively averred in the answer, 
 the court held that proof upon that question was upon a matter 
 not in issue in the cause.* 
 
 A creditor who had obtained judgment and sued out execution, 
 filed a bill against his debtor and the grantee of that debtor, alleg- 
 ing that property was conveyed to such grantee upon the express 
 understanding that it should be applied, in the first place, to pay 
 debts due the grantee, and then to pay the plaintiff. The plaintiff 
 failed to establish any such understanding, and then he insisted 
 
 ^Thompson v. Jackson, 3 Eand. 504; Grouvemeur, &c. o. Elmendorf, &c., 5 
 Johns. Chy. E. 82. 
 
 » Parker v. Carter et ah, 4 Mnnf. 273j Gibson v. Randolph, 2 Munf. 310. 
 3 Hunter's Adm'r v. Jett, 4 Eand. 104. 
 * Nash V. Nash et ok, 28 Grat. ,686. 
 
278 BILLS IN CHANCEEY. § 89 
 
 that the deed was fraudulent ; but it was held that no relief could 
 be granted on that ground, for so far from alleging in the bill that 
 the deed was fraudulent, the plaintiff had claimed a beneficial in- 
 terest under it.^ 
 
 IV. The Injury Complained of. — It was formerly thought that 
 in every bill there should be a general charge of confederacy among 
 the defendants to the plaintiff's injury, but this has ceased to be 
 regarded otherwise than as an idle form,^ and is but seldom inserted 
 in a bill. 
 
 The extent and nature of the injury of which plaintiff complains, 
 or which he anticipates, will, as a matter of course, generally ap- 
 pear in his statement of the case, but it not unfrequently happens 
 that it is better stated in a separate clause of his bill. 
 
 V. The Pretensions of the Defendants. — This is what is called 
 the charging part of the bill, and the custom of inserting in the 
 first place a statement of what the plaintiff knows, or anticipates, 
 that the defendants will say in answer to his complaint, and thus 
 showing why it is not a sufficient defence, has been said to have 
 the effect of doing away with special replications. But a state- 
 ment in advance of the defendant's claim is not essential to a good 
 bill, and frequently it is best to omit it altogether.^ 
 
 VI. The Claim for Relief in Equity. — ^As the statement of the 
 case must itself show the grounds for relief in equity, it is not 
 necessary that that fact should be made to appear by any formal 
 statement of it. It is usual, however, to aver that the acts or 
 facts complained of are contrary to equity and good conscience, 
 and that complainant has none or not a complete remedy without 
 
 'The Ontario Bank v. Boot, &c., 3 Paige, 478. But exhibits may not unfre- 
 quently be resorted to to supplement the allegations of the bill, for, when filed with 
 and prayed to be read as parts of the bill, they are as much parts of it as if incor- 
 porated in it. Johnson v. Anderson, 76 Va. 766; Thompson v. Clark, 81 Va. 422. , 
 
 2 1 Daniel's Chy. Pr., 372 and notes; Story's Eq. PI., § 29; Abbott's U. S. Pr., 
 Vol. 1, p. 136. 
 
 •'Daniel's Ohy. Pr., Vol. 1, p. 373, and notes; Story's Eq. PL, § 31; Parker v. 
 Carter, 4 Munf. 273; Stafford v. Brown, 4 Paige, 88; Mitford's Eq. PI. 42; Ab- 
 bott's U. S. Pr., Vol. 1, p. 136. 
 
§ 89 THE FRAME OP THE BILL. 279 
 
 the aid of a court of equity. Unless this fact appears from the 
 pleadings and proofs, its averment will, of course, amount to 
 nothing.* 
 
 VII. The Names of the Defendcmts, and the Demand that they be 
 Compelled to Answer. — In this part of the bill the names of those 
 persons who are made defendants, and the characters in which they 
 are sued,^ axe generally stated, although in the practice of the 
 United States courts it is customary to set them forth in the intro- 
 ductory part.' The demand is then made that those who are sui 
 juris may severally answer the matter contained in the bill in 
 their own proper persons on oath,* the infants and other defendants 
 under any disability by guardian ad litem, and corporations in the 
 manneir provided for such defendants. 
 
 Instead of merely calling on the defendants to answer generally 
 to the matter contained in the bill, it is often proper to add special 
 interrogatories, and to require specific answers to them. These 
 interrogatories are sometimes set out in the body of the bill, and 
 sometimes in a note at its foot.' But a defendant who avoids an- 
 swering fully to the subject-matter of the bill cannot be excused 
 because there may be no special interrogatories applicable to the 
 case, for it is sufficient to make a general demand on him to an- 
 swer the contents of the bill. Thus, where the bill contained the 
 general requisition " that the defendants may full answer make to 
 all and singular the .premises, fully and particularly, as though 
 the same were repeated, and they specially interrogated," it was 
 
 1 Minor's Institutes, Vol. 4, Pt. 2, p. 1123; Mitford's Eq. PI. 43; Stor/a Eq. 
 PI., § 34; Abbott's U. S. Pr., Vol. 1, p. 136. 
 
 ^ Mayo V. Tomkies, 6 Munf. 520; Sherman v. Christian, &c., 6 Eand. 49; Shep- 
 pard's Ex* or v. Starke and Wife, 3 Munf. 29; Pennington v. Hanby, &c., 4 Munf. 
 144; Cook v. Dorsey, 88 W. Va. 198. 
 
 'Dest/s Fed. Procedure, p. 280, Eule 20. 
 
 * But the better practice is to waive the oath and thus overcome the effect of the 
 answer as evidence. Code, § 3281. In West Virginia the answer need only be 
 on oath when the bill is verified, pode W. Va., Ch. 125, ? 38. 
 
 s Story's Eq. PL, ? 35 to § 38, and ? 847; 1 Daniel's Chy. Pr. 376, and note; 
 Thornton v. Gordon, 2 Eob. 719. 
 
280 BILLS IN CHANCEEY. § 89 
 
 considered sufficient to call for a foil and frank disclosure of the 
 whole subject-matter of the bill.' 
 
 If the defendant be specially interrogated, there can be no in- 
 terrogatory allowed which does not arise from or relate to some 
 fact charged in the bill ; ^ but it is not necessary that the inter- 
 rogatory should arise directly out of those material averments in 
 the bill upon which the complainant's right to relief essentially 
 depends. It is sufficient to entitle him to an answer to the inter- 
 rogatory, that it is founded upon a statement in the bill which is 
 set up merely as evidence in support of the main charges therein.' 
 If, however, there be no averment or statement in the bill on 
 which to found a particular interrogatory, an exception to the an- 
 swer for failing to respond to such interrogatory cannot be sus- 
 tained.* Neither will the interrogatory avail at the hearing, for 
 the purpose of supplying a defect in the bill. If evidence be re- 
 lied on as to a particular fact, and such evidence be objected to 
 because the fact is not charged, the objection will not be removed 
 by an interrogatory calling for information on the subject.' 
 
 It is generally laid down by the authorities as a settled rule that 
 none are defendants against whom process is not prayed,' or, to use 
 the language of Lord Mansfield, " the plaintiff may complain and 
 tell stories of whom he pleases, but they only are defendants against 
 whom process is prayed." In Yirginia, however, the writ 
 of subpoena is not only issued as a matter of course, but the issu- 
 ing it usually precedes the filing of the bill. It is therefore said,' 
 that " here a formal prayer in the bill cannot be necessary to entitle 
 the plaiatiff to that process ; and it would be strange indeed if 
 
 ' The Methodist Church, &c. v. Jacques,. &c., 1 Johns. Chy. E. 65. 
 ' James v. McKemon, 6 Johns. E. 543; Woodcock v. Bennet, 1 Cow. 734. 
 ' Mechanics Bank v. Levy, &c., 3 Paige, 606. 
 'Mechanics Bank v. Levy, &c, 3 Paige, 606. 
 s Parker v. Carter, &c., 4 Munf. 273. 
 
 ° Brasher' s Ex'ors v. Van Cortlandt, 2 Johns. Chy. E. 245; Fawkes v. Pratt, 1 
 P. Wms. 593. 
 'Eobinson's Pr., 1st ed., Vol. 2, p. 290; Ante, Ch. 3, g 36. 
 
§ 89 THE FRAME OF THE BILL. 281 
 
 those only should be regarded as defendants against whom there is 
 an unnecessary prayer for process.- It may be admitted that every 
 bill should clearly designate some particular persons as defendants, 
 and that ordinarily the prayer for process selects from the persons 
 named in the bill those who are made defendants. But this par- 
 ticular mode of designation cannot be indispensable. It must be 
 sufficient for the bill to state which of the persons named in it are 
 made defendants." 
 
 In one case ^ no persons were designated as defendants, either by 
 a prayer for process against them, or by any statement that they 
 were impleaded as defendants. The bill was adjudged bad on 
 special demurrer assigning this cause, but the complainants had 
 leave to amend on the usual terms. 
 
 VIII. The Prayer for Relief. — This part of the bill should con- 
 tain both the prayer for the specific relief demanded by the bill, 
 and the general prayer for such other and further relief as to the 
 court shall seem proper in the premises.^ 
 
 The general prayer should never be omitted, for if the plaintiff 
 in his prayer for specific relief mistakes that to which he is entitled,, 
 it may yet be afforded him under the prayer for general relief, pro- 
 vided it be consistent with the case made by the bill ; but if there 
 be no prayer for general relief, and in his specific prayer he mis- 
 takes the relief to which he is entitled, none can be granted him, 
 and his suit must fail unless an amendment be obtained.' 
 
 The prayer for specific relief is so generally inserted that it 
 may almost be regarded as of universal custom, and without it the 
 bill may be objected to for uncertainty ; but it has been held not 
 to be essential to a proper bill, because under the general prayer 
 the plaintiff may ask at the bar a specific relief, not particularly 
 prayed for in the bill, if he be otherwise entitled to the same.* 
 
 ' Elmendorf and Wife v. Delancy, &c., 1 Hopkins' Chy. E. 555. 
 2 Vance Shoe Co. v. Haught, 41 W. Va. 275. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 377-378, note; Gofft>. Price, 42 W. Va. 385; 26 
 S. E. B. 287. 
 * Ibid., p. 378, note; Lingan v. Hendeison, 1 Bland. 236. 
 
282 BILLS IS CHANCBEY. § 89 
 
 The better, if not the positive rule, is to insert the specific prayer ; 
 and although this may sometimes be drawn in a dual aspect/ yet 
 great care should be taken in framing it, so that it may contain an 
 accurate specification of the matters to be decreed ; for although, 
 when the prayer does not extend to embrace all the relief to which 
 the plaintiff may, at the hearing, show a right, the deficient relief 
 may be supplied under the general prayer, yet such relief must be 
 consistent with that specifically prayed, as well as with the case 
 made by the bill ; for the court will not suffer a defendant to be 
 taken by surprise, and permit a plaintiff to neglect and pass over 
 the prayer he has made, and take another decree, even though it 
 be according to the case made by the bill.^ 
 
 It has further been held, that though the bill should contain 
 neither a specific nor a general prayer for relief, yet if the defen- 
 dants answer the allegations and submit themselves to the decree 
 of the court on the merits, the defect as to the prayer will be dis- 
 regarded by an appellate court.' 
 
 The character of relief which may be granted under the general 
 prayer has been thus defined by Lord Eldon : * " The rule is, that 
 if the bill contains charges, putting facts in issue that are material, 
 the plaintiff is entitled to the relief which these facts will sustain 
 under the general prayer ; but he cannot desert specific relief 
 prayed, and under the general prayer ask specific relief of another 
 description, unless the facts and circumstances charged by the bill, 
 consistently with the rules of court, maintain that relief." ^ 
 
 Under the general rule as thus laid down, it has been held that 
 where a judgment creditor filed a bill to set aside a deed for fraud, 
 
 ' Colton, &c. V. Eoss, &c., 2 Paige, 396; Bootes v. Holliday & Welch, 6 Munf. 
 251; Lloyd u. Brewster, 4 Paige, 537; 27 Am. Dec. 88; Vance Shoe Co. v. Haught, 
 41 W. Va. 281; 23 S. E. E. 653. 
 
 ' Daniel's Chy. Pr., Vol 1, p. 378. 
 
 'Smith, &c. V. Smith, &c., 4 Eand. 95. 
 
 *Hiem v. Mile, 13 Ves. 119. 
 
 ^See also Johnson v. Johnson, 1 Munf. 549; James v. Bird's Adm'r, 8 Leigh, 
 510; Harvey v. Alexander, 1 Eand. 219; Beall v. Silver, 2 Eand. 401; Beverly v. 
 Brooke, &c., 2 Leigh, 425. 
 
§ 89 THE FEAME OF THE BILL. 283 
 
 although the deed was held to be valid, yet under the prayer for 
 general relief he was entitled to an account of the debts secured 
 by the deed, and to have a sale of the propef ty ; ^ and this, although 
 an account was not especially asked for.'' 
 
 Where the bill was filed against a guardian for an account, and 
 the purchaser from him of land that he had no right to sell was 
 made a party, it was held that, although there was no prayer in 
 the bill to set aside this illegal sale, yet it ought to be done under 
 the general prayer for relief.' 
 
 Where the bill was to enjoin a judgment at law, and for relief 
 against it under an act of assembly, which provided that if the 
 consideration of the contract was Confederate States treasury notes, 
 and a tender of payment thereof had been made, the debtor should 
 be relieved against the obligation of the contract, it was held that 
 although such relief was denied, yet under the prayer for general 
 relief the court could scale the debt to its first value.* 
 
 On the other hand, where the bill was to rescind a contract and 
 have certain shares restored, and for general relief, it was ques- 
 tioned by the court of appeals whether, when the court refused to 
 rescind the contract, it could go on and decree the payment of the 
 balance of purchase money due or( them.* 
 
 A court will not grant an injunction unless especially prayed 
 for,^ nor will it probably appoint a receiver unless one be asked for 
 specifically in the bUl.' It has also been held that the court will 
 not in general decree interest upon a balance, unless it is specially 
 prayed ; but this rule has been departed from under peculiar circum- 
 stances, and it can scarcely be said to be of general application.^ 
 
 ^ Sipe V. Earman et aU, 26 Grat. 563. 
 
 'Marks et ah v. Hill ei ah, 15 Grat. 400; Penn's Adm'rs v. Spencer el ah, 17 
 Grat. 85. 
 ' Baper v. Savmders, 21 Grat. 60. 
 * Sanders v. Branson, 22 Grat. 364. 
 ^ James v. Bird's Adm'r, 8 Leigh, 510. 
 'Daniel's Chy. Pr., Vol. 1, p. 388. 
 
 ' Smith V. Butcher^ 28 Grat. 144. But see 2 Daniel's Chy. Pr., p. 1720. 
 8 Daniel's Chy. Pr., Vol, 1, p. 382. 
 
284 BILLS IN CHANCERY. § 90 
 
 The rule limiting the relief to the case made by the bill, is of 
 stricter application in those cases in which the plaintiff relies upon 
 fraud/ and is relaxed where infants are concerned ; for it has been 
 held that an infant plaintiff may have a decree upon any matter 
 arising upon the state of his case, although he has not particu- 
 larly mentioned or insisted upon it, or prayed for it by his bill ; 
 and a somewhat similar leniency is extended to cases where charities 
 are concerned.^ 
 
 The difficulty about obtaining relief under a general prayer, 
 when that specially asked cannot be granted, is, to a large extent, 
 obviated by the liberal degree to which amendments allowed,^ for 
 this has ever been permitted after refusal of the specific relief 
 prayed in a case in which, in addition to the new prayer for relief 
 it was necessary to bring in new parties.* Where the bill was for 
 the specific execution of a contract, and this was denied, it was 
 regarded as competent to the court to permit the plaintiff to amend 
 his bill and pray an account of rents and profits.'' 
 
 IX. The Prayer for Process. — The conclusion of the bill is the 
 prayer that process may issue against the defendants ; and then 
 the bill should be signed by complainant's counsel." 
 
 In Virginia, as we have beforS observed, the issuing of process 
 is a matter of course, and it is usually done before the bill is filed ; 
 but, as has also been noticed,'' in certain cases of non-residents and 
 unknown persons, a special allegation of these facts is required in 
 order that they may be summoned by publication. 
 
 Original amd other Bilk. 
 § 90. Bills in chancery have been divided by the text-writers 
 
 • Daniel's Chy. Pr., Vol. 1, p. 382. 
 ' Daniel's Chy. Pr., Vol. 1, p. 384. 
 ' Belton V. Apperson et al, 26 Grat. 207. 
 « Daniel's Chy. Pr., Vol. 1, p. 383. 
 5 Ambrouse's Heirs v. Keller, 22 Grat. 769. 
 'Minor's Institutes, Vol. 4, p. 112-5. 
 
 ' Anle, Ch. 4; ? 83. A bill not signed is (femurrable unless amended in this par- 
 ticular by leave of court. Duer v. WiUis, 42 W. Va. 365; 26 S. E. R. 176. 
 
§ 90 ORIGrNAL AXD OTHEE BFLLS. 28 5 
 
 into the following classes : 1. Original bills ; 2. Bills not original ; 
 and 3. Bills in the nature of original bills, though occasioned bv 
 former bills. 
 
 ^ Original bills are further sub-divided into two classes : 1. BiUs 
 praying relief; and 2. BUls not praying relief 
 
 Original bills praying relief are : 1. Original bills by which 
 suits are first institated ; 2. Original bills of interpleader ; 3. 
 Original bills praying a writ of certiorari. 
 
 Original bills not praying relief are : 1. BiUs to perpetuate tes- 
 timony ; 2. Bills for discovery in aid of another suit. 
 
 Bills not original are : 1. Supplemental and amended bills ; 2. 
 Bdls of revivor ; 3. Bills of revivor and supplement. 
 
 BUls in the nature of original bills are : 1. Cross-bills ; 2. Bills 
 of review ; 3. BUI- in the nature of bUls of review ; 4, Bills to 
 impeach decrees on the ground of fraud; 5. Bills to suspend or 
 avoid the execution of a decree ; 6. Bills to carry decrees into 
 execution ; 7. BUls in the nature of bUls of revivor ; 8. BUls in 
 the nature of supplemental bills.^ 
 
 These, and several other bills not included in this classification, 
 will be treated of in this chapter. An original bUl has been de- 
 fined to be one that does not relate to some matter already litigated 
 in the same court by the same persons, and which is not either in 
 addition to, or a continuance of, an original suit ; ^ hence it has 
 been held that that is not an original bUl which was filed before 
 there was a decree for damages in another suit, to set off against 
 it a judgment against the parties suing.' Bnt an original biU will 
 lie to impeach a decree on the ground that it has been obtained by 
 surprise or mistake, and this mode of proceeding often becomes 
 necessary because a bUl of review will not lie.* 
 
 1 Minoi's Institntes, VoL 4, p. 1126 to 1134 
 ' Christmas v. EnsseU, 14 Wallace, 69. 
 ' Eubber Company v. Goodyear, 9 Wallace, 807. 
 
 ♦Anderson c. Woodford et al, S Leigh, 328; Erwin v. Vint, 6 Mnn£ 267; Calla- 
 way V. Alexander, &c, 8 Leigh, 114; Fore v. Foster, 56 Va. 104. 
 
286 BILLS IN CHANCERY. § 91 
 
 Oreditors' Bilk. 
 
 § 91. We have before observed that where the persons in inter- 
 est are very numerous, one or more may sue or defend for them- 
 selves and all others similarly situated. In the case of creditors, 
 it is well established that a few may maintain a suit in behalf of 
 themselves and all the other creditors ^ of a deceased person, against 
 his representative for an account, and an application of his assets, 
 real and personal, in payment of their demands.^ So also the lien 
 creditors of a living person or a corporation * may maintain the 
 same sort of suit, and it will lie by one creditor on behalf of him- 
 self and others, even though they hold conflicting mortgages ;* or 
 for the purpose of enforcing a deed of trust where there are several 
 classes of creditors,^ or where none are named in the deed.' 
 
 In all such suits the whole administration and settlement of 
 the estate is assumed by the court, the assets are marshalled, and 
 the decree is made for the benefit of all the creditors. The other 
 creditors may come in under the decree,' or by petition in the 
 cause,* and prove their debts before the master to whom the cause 
 is referred, and obtain satisfaction of their demands equally with 
 the plaintiffs in suit; and under such circumstances they are 
 treated as parties to the cause.' If, after reasonable notice, they 
 
 ' Poindexter's Ex'ors, v. Green's Ex'ors, 6 Leigh, 504. 
 
 ^Story's Eq. PI., ? 99. Such a bill is not demurrable though filed within six 
 months after the appointment of a personal representative if it be to discover assets 
 and to enforce a claim against the estate in the' hands of heirs or devisees. Poling 
 V. Hnffinan, 39 W. Va. 320. 
 
 ' Winchester & Strasburg Eaib-oad Co. v. Colfelt, 27 Grat. 777; Terry v. Little, 
 11 Otto, 216. 
 
 * Galveston E. E. Co. v. Cowdrey, 11 Wall. 459; 1 Daniel's Chy. Pr. 235. 
 5 Eeynolds v. The Bank of Va. et als, 6 Grat. 174. 
 
 « Hudgins v. Lanier Bro. & Co., 23 Grat. 494. ' Myers v. Fenn, 5 Wall. 205. 
 
 * Umbarger and Wife et ak v. Watts et als, 25 Grat. 171. But this is not true if 
 the suit is by a single creditor. 2 Daniel's Chy. Pr. 1207. 
 
 'Post V. Mackall, 3 Bland. 487; Piedmont & Arlington Ins. Co. v. Maury, 75 
 Va. 508; Bank of Old Dominion v. Allen et al, 76 Va. 200; Beverly v. Rhodes, 
 86 Va. 417. For the statute of West Virginia and the decided cases as to making 
 parties to creditors' suits, see Ante, § 49 and notes. As to vendor who retains legal 
 title, see Benson v. Snyder, 42 W. Va. 227; 24 S. E. E. 880. 
 
§ 91 creditors' bills. • 287 
 
 decline to come in before the master or by petition, they will, at 
 least in the case of suits against deceased debtors, be excluded 
 from the benefits of the decree,^ and yet they will be considered 
 as bound by the acts done under its authority.^ 
 
 In such a suit the complainants should say in the bill that it is 
 on behalf of themselves and all the rest of the creditors ; ^ but 
 where one creditor filed a bill to subject the personal and real 
 estate of his deceased debtor to the payment of his debt, saying 
 nothing of other creditors, but praying that the administrator's 
 accounts* might be settled, that an account of all debts and liabili- 
 ties of the estate might be taken, and their priorities fixed, that 
 the amount and value of the real estate might be ascertained, and 
 that all other accounts and orders which are proper might be taken 
 and made ; this was held to be substantially a creditor's bill Ji^ut 
 the contrary was held of a bill filed by the holder of a vendor's 
 lien who had no interest in common with the creditors at large/ 
 
 ^ Where a creditor neglects, on being actually notified, to come in under a cred- 
 itor" s suit against the estate of the deceased as his principal debtor, it has been held 
 that such debtor's sureties would be discharged. Simmons v. Tongue, 3 Bland. 341. 
 
 ^ Story's Eq. PL, § 99, p. 100 and note, ed. 1879. 
 
 ' Leigh V. Thomas, 2 Ves. 313; Brown v. Bicketts, 3 Johns. Chy. E. 553; 
 Hammond v. Hammond, 2 Bland. 344. 
 
 * Duerson's Adm'r v. Alsop, 27 Grat. 235. See also Hartley & Co. v. *Roffe, 12 
 W. Va. 402; Anderson v. Nagle, Ibid. 113; Eohrer v. Travers, Trustee, 11 W. 
 Va. 146; Doonaa v. Board of Education, 9 W. Va. 246; Strike's Case, 1 Bland. 
 57; Ewing's AAm' i et als v. Ferguson's Adm'r et ah, 33 Grat. 548; Piedmont & 
 Arlington Ins. Co. v. Maury, 75 Va. 508; Carter v. Hampton's Adm'r, 77 Va. 631; 
 NorveU, Adm'r, v. Little et als, 79 Va. 141; Hum v. KeUer, 79 Va. 415; Laidley 
 V. Kline's Adm'r, 23 W. Va. 565; Kice v. Hartman, 84 Va. 251; Neeley v. Jones, 
 16 W. Va. 625; Norris, CaldweU & Co. v. Bean, 17 W. Va. 655; Ante, ? 49 and 
 notes. 
 
 = EUicott V. Welch, 2 Bland. 242. Where, however, the bill was that of a single 
 creditor against all the lienors on a particular tract of land, but was not a general 
 creditor's bOl such as would have called for marshalling all the lien debts existing 
 upon all the lands, it was held to be error to decree an account to be taken by a 
 commiBsioner of all the debts of the defendant which are valid and subsisting liens 
 on his lands. Baugher v. Bichelberger, 11 W. Va. 217. A suit by creditors 
 against the debtor and his trustee for creditors, not brought for the administration 
 of the estate among the creditors generally, but to secure a lien on and to divert to 
 payment of complainant's claims, the share which by deed of trust would fall to 
 
288 BILLS LN CHANCERY. § 91 
 
 Yery great doubt was expressed whether one creditor at large 
 can ever sue in a court of equity for an account of assets and the 
 payment of his debt ; ^ for it was very reasonably said, that if a 
 bill be brought by a single creditor for his own debt, he may, as 
 at law, gain a preference by the judgment in his favor over the 
 other creditors in the same degree, who may not have used equal 
 diligence ; ' and by the same authority it is laid down that while 
 he may sue on his own behalf alone for administration of the per- 
 sona] estate, he caunot have a decree for the administration of the 
 real estate unless he sues on behalf of himself and all the other 
 creditors.' 
 
 But this doubt has been recently removed by subsequent decis- 
 ions of the court of appeals of "Virginia,^ in which it is said, 
 " that a single creditor at large of a deceased debtor, may sue the 
 personal representative in equity for an account of assets and the 
 payment of his debt, is well settled upon principle and author- 
 ity." In all such cases, however, the decree for an account will 
 be for the benefit of all the creditors, and all may come iu and 
 prove their debts before the commissioner and have satisfaction of 
 their demands equally with the plaintiff in the suit and will be 
 treated as parties thereto." 
 
 But -even where the bill is by a single creditor, and not for him- 
 self and all the other creditors, it may be by amendment, or by 
 ordering an account before a commissioner, with directions to him 
 
 other creditors, is not a creditors' suit, and hence not excepted from the rule that, 
 as between courts of concurrent jurisdiction, the one first acquiring jurisdiction 
 shall dispose of the whole controversy. Craig v. Hoge, 95 Va. 275; 28 S. E. K. 317. 
 
 'Duerson's Adm'rti. Alsop, 27 Grat. 236; Reynolds v. The Bank of Virginia, 
 6 Grat. 174. 
 
 ' Mitford's Chy. PI. 193; 1 Daniel's Chy. Pr. 235. But where one creditor 
 filed a bUl where no claim had been made for twenty years, and the trustee had 
 stated that all the other creditors had been satisfied, he was allowed to maintain 
 his bm. Perry on Trusts, Vol. 2, g 594. 
 
 ' Daniel's Chy. Pr., Vol. 1, p. 235. 
 
 'Beverly v. Rhodes, 86 Va. 416; Rices. Hartman, 84 Va. 251., 
 
 ^ Where suit is to enforce a vendor's lien there may be personal decree for the 
 purchase money before the sale. Dellinger v. Foltz, 93 Va. 729; 25 S. E. E. 999. 
 
§91 CKEDITOES' BILLS. 289 
 
 to convene all the creditors or encumbrancers/ made a general 
 creditors' bill. 
 
 Although any such bill is in behalf of all the creditors, it is yet 
 under the control of the party bringing it, at least until there is a 
 decree for an account.^ If his claim is proved or admitted, and 
 the executor confesses assets, the plaintiff may, at the hearing, have 
 a decree for payment, and he is not compelled to take a decree for 
 an account.' Or if he obtains satisfaction of his debt, he may 
 have the fact entered of record, and the suit dismissed as to him.^ 
 
 If the creditor under whose control the case is should die, it may 
 be revived by his administrator, or if he does not revive it, any 
 other creditor may carry on the suit, making the administrator of 
 the deceased creditor a party.^ 
 
 It is provided by statute in Virginia,* that " the lien of a judg- 
 ment may always be enforced in a court of equity. If it appears 
 to such court that the rents and profits of the real estate subject 
 to the lien will not satisfy the judgment in five years, the court 
 may decree the said estate, or any part thereof, to be sold and the 
 proceeds applied to the discharge of the judgment;" but the statute 
 prescribes no way in which this fact shall be made to appear, hence 
 
 1 Daniel's Chy. Pr., Vol. 1, p. 236, note; Story's Eq. PI., ? 161; also ? 101, 
 102, 103. 
 
 ' Piedmont & Arlington Life Ins. Co. v. Maury, 75 Va. 508. 
 
 'Duerson's Adm'r v. Alsop, 27 Grat. 236; 1 Daniel's Chy. Pr. 236; Adams' 
 Equity, 257-258. 
 
 * Linsey v. McGannon, 9 W. Va. 154. 
 
 ^For the English rule in such cases, see 2 Daniel's Chy. Pr., 1522, 1538. A 
 sale after death under a decree roade before death held to be valid. Allan ». Hoff- 
 man, 83 Va. 129. Payment of debt wiU not suspend suit after order of reference. 
 Shumate's Ex' or v. Crockett, W. Va.; 27 S. E. E. 240. The creditor who has 
 brought the suit and whose debt has been paid cannot dismiss the suit if other 
 creditors desire to carry it on, and pending an unexecuted order of reference before 
 a commissioner the suit cannot be dismissed on motion of the debtor. Lewis v. 
 Laidley, 39 W. Va. 423. 
 
 « ? 3571; Code W. Va., Ch. 139, § 7. While there was no statute in West Vir- 
 ginia prescribing any time during which the rents and profits must be applied to 
 the payment of the debts before a sale may be decreed, it was held that if within 
 a reasonable time they would be sufficient for that purpose there should be no decree 
 for sale. Kose & Co. et al v. Brown etvx, 11 W. Va. 122. 
 
 19 
 
290 BILLS IN CHANCERY. § 91 
 
 where the bill stated the valuation of the land, and that the judg- 
 ments could not be satisfied from the rents and profits in five year's, 
 and the answer said nothing on the subject, and no application for 
 an enquiry was made on that point, it was held not to be error to 
 decree a sale of the land. But where, under such circumstances, 
 the decree appealed from was interlocutory, the court of appeals 
 held that it would amend and affirm the decree, allowing the de- 
 fendant still to have the enquiry made, if he should choose to do 
 so.' It has further been held that the question of whether the 
 rents and profits will pay the debts in five years may be determined 
 by the pleadings, by the admission of the parties, by evidence 
 taken, or by the report of a commissioner on an enquiry ordered.^ 
 Under the statute from which we have quoted, and under section 
 3567 of the same chapter of the Code, it hag been decided that the 
 remedy in equity against real estate is not dependent upon the in- 
 adequacy of the legal remedy to satisfy the judgment out of the 
 personal estate, or the insufficiency of such estate for that purpose, 
 but it may always be resorted to whether there be or be not per- 
 sonal estate of the debtor sufficient to satisfy the judgment. Hence, 
 an objection that the plaintiff did not allege in his bill that he 
 had exhausted the debtor's property by execution was held to be 
 unavailing.' 
 
 Until the enactment of these statutes, the creditor having a legal 
 remedy,* equity had no jurisdiction to decree a sale of lands to 
 
 'Barr, Assignee, v. White et als, 30 Grat. 531; Ewart v. Saunders, 25 Grat. 203; 
 McClung I). Beime, 10 Leigh, 394; Manns v. Flinn's Adm'r, Ibid. 93; Horton 
 el als V. Bond, 28 Grat. 815; Price v. Thrash, 30 Grat. 515. 
 
 ' Horton et cUs v. Bond, 28 Grat. 815. Not applicable to vendor's lien, Kane 
 V. Mann, 93 Va. 239. 
 
 » Price V. Thrash, 30 Grat. 515; Borst v. NaUe ei als, 28 Grat. 423, 430; Moore 
 V. Bruce et als, 85 Va. 139. But see a different provision in this respect in § 7, Ch. 
 139, Osdeof West Virginia; Ante, § 26, notes. As there need be no execution before 
 subjecting land to the lien of a judgment, so it is not necessary to revive the judg- 
 ment by scire faeias before suing to subject land to the lien of the judgment. 
 James v. Life, 92 Va. 702. 
 
 * Jones V. Green et al, 1 Wall. 330. Now bill lies without even reviving a judg- 
 ment. James et uls v. Life, 92 Va. 702. 
 
§ 91 CEEDITOES' BILLS. 291 
 
 satisfy the judgment unless it was made to appear that the remedy 
 at law to enforce the judgment was inadequate ; but it has further 
 been provided by another statute/ that a creditor before obtaining 
 a judgment or decree for his claim (whether such claim be due- 
 and payable or not), may institute any suit to avoid a gift, convey- 
 ance, assignment, or transfer of, or charge upon, the estate of his 
 debtors, which he might institute after obtaining such judgment or 
 decree ; and he may in such suit have all the rehef in respect to 
 said estate which he would be entitled to after obtaining a judgment 
 or decree for the claim which he may be entitled to recover f and 
 under this statute it has been held ^ that such a creditor at large has 
 a lien on the property from the time the suit is brought, and a 
 creditor who comes into the suit has a like lien from the filing of 
 his petition ; but as against creditors, with or without notice, and 
 purchasers for value, without notice, the lien is from the time of 
 his filing his memorandum or lis 'pendens. 
 
 Unless affected by these or some other statutory provision, the 
 rule remains, however, that in the administration of the assets of 
 a deceased person, the personal estate is. the natural and primary 
 fund for the payment of debts and legacies, and as a general rule, 
 must first be exhausted before the real estate can be made liable, 
 and the personal property will not be exonerated by a charge on 
 the real estate, unless there be express words or a plain intent in 
 the will to make such exoneration.* If, therefore, the creditor's 
 bill be against the estate of a dead person, it should call for an 
 
 » Code, \ 2460, as amended by act of Febraary 22, 1890, Acts 1889-90, p. 73, 
 and act of March 2, 1894, Acts 1893-94, p. 614; Code W. Va., Ch. 133, \ 2. 
 
 » Eussell V. Eandolph, 26 Grat 713. 
 
 » Davis it al v. Bonney, 89 Va. 755. The statute of West Virginia ( Code, Ch. 133, 
 § 2) does not, as does the Virginia statute, define the time from which the lieu 
 exists, but in Virginia, under the old statute (like that of West Virginia), it was 
 held that creditors not having judgments acquire their liens from the time the 
 bill is filed, and those who come in after, but before the death of the debtor, in the 
 order in which their petitions are filed. Wallace's Adm'r ti. Treakle ei cds, 27 
 Grat. 479. 
 
 * Leading Cases in Equity, Vol. 1, Pt. 2, p. 917; Lomax on Ex'ors, Vol. 2, p. 405. 
 
292 BILLS IN CHANCEEY. § 91 
 
 account of the personalty, and the decree should provide for its 
 application to the relief of the real estate.' In such a case the 
 court will order the payment of the personal fund into the hands 
 of a receiver, and will administer it according to the rights of the 
 parties.^ 
 
 It is a general rule where a creditor suing for himself and 
 others who may come in, and contribute to the expenses of the 
 suit, institutes the proceeding for their common benefit, that those 
 who derive a benefit shall bear their proportion of the expenses, 
 and not throw the whole burden on one ; and this rule applies to 
 the fees of counsel, but if a creditor has his own counsel in a cause 
 actively prosecuting it he cannot be required to contribute to the 
 compensation of another. In such cases, the common fund can- 
 not be charged beyond the costs fixed by law, and whatever money 
 is to be decreed to counsel must be charged to the shares of those 
 creditors who have employed him.' 
 
 The statute " provides, that it shall not be lawful for any court 
 
 ^ Lomax on Ex' ors, Vol. 1, p. 644. For the circumstances under which the court 
 will decree the sale of real estate, see Poi^t, Ch. 7. See also Hammond v. Ham- 
 mond, 2 Bland. 306; Ibid. 509; Scott's Ex' or v. Ashlin, 86 Va. 581. 
 
 ^ Farmer v. Yates and Wife, and authorities there cited, 23 Grat. 152; Davis v. 
 Chapman, 83 Va. 67. 
 
 ' StovaU, Trustee, &c. v. Hardy et ah. Special court of appeals of Virginia, re- 
 ported in Virginia Law Journal, 1879, p. 109. Citizens Nat'l Bank v. Manson, 76 
 Va. 802; Gumee v. Bansemer & Co., 80 Va. 867. The supreme court of the United 
 States has gone very far in making allowances to counsel out of a fund recovered 
 by their exertions on behalf of their own clients, although the fund belongs largely 
 to other persons, provided the services rendered were really for the common benefit 
 and the other claimants of the fund were not themselves represented by counsel 
 in the proceedings which resulted in the recovery. Trustees v. Greenough, 105 
 U. S. E. 527; Central R. K. & Banking Co. v. Pettus, 113 U. S. R. 116. See, 
 however, what is said by Judge Brannon in Fowler v. Lewis, 36 W. Va. 154, and 
 in Crumlish's Adm'r v. Shend. V. R. B. Co., 40 W. Va. 627. 
 
 * ? 3202. And the supreme court of appeals of Virginia, in the case of Howard 
 V. First National Bank, Va. ; 27 S. E. R. 492, held that where a petitioner (with 
 other counsel) filed a bill on the part of a creditor, who sued also in behalf of all 
 other creditors who might become parties and contribute to the expenses, and after 
 a fund had been secured for distribution among the creditors who had become 
 parties, another creditor was admitted, and its claim was allowed, that although 
 
§ 92 BILLS MAESHALLING ASSETS. 293 
 
 to allow a fee to counsel to be paid out of property or moneys un- 
 der control of the court in a pending cause, for services therein, 
 unless it be alleged in the bill, petition, or other proceedings, 
 which the parties interested in said property or moneys have been 
 summoned to answer, that the court will be asked to allow a fee 
 for services to be paid as aforesaid ; or unless the parties so inter- 
 ested shall have been notified in such manner as the court shall 
 prescribe, that application will be made to the court to allow a fee 
 to be paid as aforesaid. 
 
 It sometimes happens that several suits are pending by different 
 creditors, in which event the court will order the proceedings in 
 all the suits but one to be stayed, and will require the several 
 parties to come into that suit, so that only one account may be 
 necessary. A decree of reference in one such suit operates as a 
 suspension of all other pending suits, and this decree may be 
 made in the case first ready for hearing, although it is not the first 
 suit brought.' If a creditor with knowledge that there has been 
 a decree for an account in another creditor's suit, brings a separate 
 suit for his own claim he will be compelled to pay the costs.^ 
 
 BiUs MarshaUing Assets. 
 
 § 92. The principle of marshalling assets, in general terms, 
 declares that a creditor who has two funds open to him, while an- 
 other creditor has but one, obviously should not take the latter 
 
 the petitioner had already received compensation out of the trust fund, and from 
 the creditors previously admitted, yet he was entitled to additional compensation 
 from such other creditor, to be measured by his services by which it had been bene- 
 fited, but not to be increased by reason of the failure of his fellow-counsel to make 
 a similar claim. 
 
 'Kent's Adm'r v. Cloyd's Adm'r, 30 Grat. 555; Stephenson v. Tavemers, 9 
 Grat. 398| Saunders v. Griggs, 81 Va. 506; Eobinson v. Allen, 85 Va. 724; Laid- 
 ley V. Kline's Adm'r, 23 W. Va. 565; Bilmeyer v. Sherman, 23 W. Va. 605; 
 Craig V. Hoge, 95 Va. 275; 28 S. E. K. 317. To the extent stated in the text a 
 general creditors suit is an exception to the rule that the court first acquiring juris- 
 diction must dispose of the whole controversy. On the subject of the consolida- 
 tion of suits in chancery, see Post, § 251. Upon the subject of creditor's bills 
 against the estates of deceased persons, see Lomax on Ex'ors, Vol. 2, p. 623 et seq. 
 
294 BILLS IN CHANCERY. § 93 
 
 fund without placing the fund which is exclusively within his 
 reach at the disposal of the creditor whom he has deprived of the 
 means of payment^, or which, to use the language of Chief-Justice 
 Marshall,^ "is that a creditor having his choice of two funds, 
 ought to exercise his right of election in such a manner as not to 
 injure other creditors who can resort to only one of these funds. 
 But if, contrary to equity, he should so exercise his legal rights as 
 to exhaust the fund to which alone other creditors should resort, 
 then those other creditors will be placed by a court of equity in 
 his situation, so far as he has applied their funds to the satisfaction 
 of his claim." 
 
 This principle is of frequent application in courts of equity in 
 suits in which it is required to work exact justice, even though 
 the bill has not been framed especially to secure that relief ; but it 
 may be, and often is, drawn with that express object, and where it 
 is to marshall assets and for their administration, it should be on 
 behalf of the plaintiff and all other creditors, and fhe heirs and 
 devisees of the testator should be parties.' 
 
 Bills to Surcharye and Falsify Accownis. 
 
 § 93. The statute of Virginia* provides, that the report of a 
 master commissioner, stating and adjusting the accounts of a fidu- 
 ciary, to the extent to which it may be confirmed, shall be taken 
 to be correct,'' except so far as the same may, in a suit in proper 
 time,' be surcharged and falsified ; and any person interested may, 
 by bill in equity, surcharge and falsify the whole account, if he 
 
 ' Leading Cases in Equity, Vol. 2, p. 255. 
 
 ^ Ibid, and Alston v. Munford, 1 Brockenborough, 266. See also EusseU v. 
 Eandolph, 26 Grat. 705; McCrum v. Lee, 38 W. Va. 595. 
 ' Stephenson v. Tavemers, 9 Grat. 398. 
 
 * § 2699; Code W. Va., Ch. 87, J 22. 
 
 * Extent to which it is held prima fade correct, see Newton v. Poole, 12 Leigh, 
 112; Shearman, Adm'r, v. Christian, 9 Leigh, 571; Campbell's Adrn'ru. White, 
 Trustee, et ah, 14 W. Va. 122, and Post, I 189. 
 
 * As to what is the proper time within which such a suit may be brought, see 
 Anle, Ch. 2, ? 29. 
 
§ 93 BILLS TO SXTECHAEGE AND FALSIFY ACCOITNTS. 295 
 
 can adduce satisfactory evidence for that purpose ; ' but if the 
 answer discloses nothing improper in the account, and the com- 
 plainant exhibits no evidence to sustain his allegations, it is not 
 incumbent on the court to refer the account to a commissioner, but 
 the bill should be dismissed.^ 
 
 A bill to surcharge and falsify the account must set forth the 
 items of the account which it is desired to surcharge and falsify,' 
 and the commissioner, in executing the order of account, should 
 confine himself to those errors ; * but although this is the general 
 and technical rule, yet the court will grant leave to amend the bill 
 in respect to the errors which appear in evidence, or if on a proper 
 bill an account has been ordered, it will even permit the commis- 
 sioner to proceed, in respect to newly developed errors, in like 
 manner as if they had been noticed by the bill ; ' but if in such 
 case the defendant object that he is surprised by these new develop- 
 ments, the court will give him time to contest them, or to file his 
 affidavit, to which the like effect will be given that would belong 
 to an answer to an amended bill, had the plaintiff been compelled 
 to file one.* 
 
 It is always competent also to the plaintiff to show that tjpon 
 its face the account contains mistakes ; as for example, that, with- 
 out controverting the items themselves, they have b^en so arranged, 
 or so summed up, as to produce results injurious to him/ 
 
 » Anderson, &c. v. Pox, &c., 2 H. & M. 260; AtweU's Adm'r v. MUton, 4 H. & 
 M. 253; Preston, &c. v. Gressom's Distributees, &c., 4 Munf. 110. 
 
 ^Wyllie and Wife v. Venable's Ex' or, 4 Munf. 369; Peale v. Hickle et aXs, 9 
 Grat. 445. 
 
 ' Cortin et cd$ v. Mill's Ex' or et ah, 19 Grat. 438. 
 
 *Shugart's Adm'r v. Thompson's Adm'r, 10 Leigh, 434. 
 
 " McNeel v. Baker et ah, 6 W. Va. 153; Shugaxt's Adm'r v. Thompson's Adm'r, 
 10 Leigh, 443. 
 
 * Lomax on Ex'ors, Vol. 2, p. 522; Corbin et ah v. Mill's Ex' or et ah, 19 Grat. 
 438; Chapman's Adm'r v. Shepherd's Adm'r et ah, 24 Grat. 389; McGinnis et al 
 V. Wright et al, 18 W. Va. 507; Davis v. Morris's Ex' or, 76 Va. 21; Leake's 
 Ex' or V. Leake et ah, 76 Va. 804. 
 
 ' Minor's Institutes, Vol; 4, Pt. 2, p. 1233; Lee v. Stuart, 2 Leigh, 76; Garrett, 
 &c. V. Carr, &c., 3 Leigh, 407; BurweU v. Anderson, 3 Leigh, 348; Fewton i;. 
 Poole, 12 Leigh, 112. 
 
296 BILLS IN CHAJSrCEEY. § 94 
 
 A settled account is prima facie evidence against creditors/ and 
 guardians' accounts stand on the same footing as those of executors 
 or administrators.^ Even though great and numerous errors ap- 
 pear, or even though the executor or administrator seems to have 
 taken an unfair advantage, and though he never returned to the 
 court, and did not exhibit to the auditor any inventory and ap- 
 praisement of the estate, the audited accounts are yet to be taken 
 as prima fade evidence, and to be corrected only so far as they 
 are surcharged and falsified.' 
 
 If a decree be made for a new settlement, and the vouchers re- 
 ferred to in the former account cannot still be produced, they will 
 be presumed to have existed, although if produced, the plaintiff 
 may controvert their force and effect. But in any such case the 
 burden of proof is thrown on the complainant, and no change 
 shall be made in the accounts except on satisfactory evidence, and 
 this rule is to be adhered to with especial strictness when there has 
 been a considerable lapse of time.^ 
 
 Bilk of Interpleader. 
 
 § 94. A bill of interpleader is resorted to when one in the 
 position of a stakeholder, having himself no claim to the subject, 
 is embarrassed by conflicting pretensions thereto.^ He may, there- 
 fore, file his bill in chancery, asking that the parties be compelled 
 to litigate and to assert their respective claims before the court, so 
 that their rights may be settled by the decree of the court, and 
 
 'Shearman, Adm'r, n. Christian, 9 Leigh, 571; Blackwell's Adm'r v. Bragg, 
 Trustee, 78 Va. 529. Onus is on the party seeking to surcharge. Badford v. 
 Fowlkes, 85 Va. 820; Wimbish v. Eavvlin's Ex' or, 76 Va. 48. Difference between 
 ac parte settlements and stated accounts. McCormick's Ex'ors v. Wright et ah, 79 
 Va. 524. 
 
 ' Newton v. Poole, 12 Leigh, 112. 
 
 'Ibid. 
 
 'Minor's Institutes, Vol. 4, Pt. 2, p. 1233; McCall v. Peachy, 3 Munf. 295; 
 Tabb V. Bryd, 4 CaU. 453; 13 Peters, 381. 
 
 ^ See Yarborough v. Thompson, 3 Smedes and Marshall, 291; 41 Am. Dec. 626; 
 Gibson v. Goldthwaite, 7 Ala. 281; 42 Am. Dec. 192. 
 
§ 94 BILLS OF INTEEPLBADEE. 297 
 
 they may be enjoined from harrassing the plaintiff with any litiga- 
 tion touching the subject-matter of the bill. 
 
 In order to prevent collusion between the stakeholder and 
 either of the' parties, the plaintiff is required to accompany his 
 bill with an affidavit that there is no such collusion ; and when 
 the subject-matter is money, he must expressly offer in his bill to 
 bring the same into court.* But for an omission to do this the 
 bill is not demurrable, although the fond must be brought into 
 court before any order will be made in the case.^ 
 
 The bill of interpleader must relate to a thing in action and 
 not yet passed in rem adjudioatem, hence it should be filed before 
 or immediately after the commencement of proceedings at law, 
 and should not be delayed until after a verdict or judgment has 
 been obtained. It has therefore been held that where an attach- 
 ing creditor and an assignee both recovered judgments against a 
 debtor of an absent defendant, without objection on his part, al- 
 though he had notice of the assignment before the judgment was 
 obtained, he could not, after the judgment, file a bill of inter- 
 pleader to require them to litigate their rights to the fund, but he 
 was held liable to pay both judgments.^ 
 
 The requisites of a bill of interpleader are laid down as fol- 
 lows : The plaintiff must not himself claim any interest in the 
 subject of the bill, but must on the contrary deny the existence of 
 any such interest j there must be some specific chattel or some 
 definite sum of money to which different parties in the same right 
 
 'Minor's Inatituteg, Vol. 4, Pt. 1, p. 350; Barton's Suit in Eqviity, 68-69; 
 Story's Eq. Juris. ^ 801, and seg.; Mitford's Eq. PI. 32, 47, 125-126. For the 
 statutory provision for an interpleader in an action at law, see Code, § 2999; Code 
 W. Va. Ch. 107, ? 1; 2 Barton's Law Pr., p. 883. In attachment suits, Code, 
 § 2984; Code W. Va., Ch. 106, ? 23; 2 Barton's Law Pr., p. 987. For a discus- 
 sion of the rules in equity as stated in the text see Shaw v. Custer, 8 Paige, 339; 
 35 Am. Dec. 690, notes 695 to 712. 
 
 ' Daniel's Chy. Pr., Vol. 2, p. 1563. 
 
 ' Haseltine v. Briokey et ak, 16 Grat. 121, and the authorities there cited. See 
 also Kichmond Enquirer Company v. Eobinson et al, 24 Grat. 548. As to what 
 constitutes a good bUl of interpleader, see Oil Pet. Co. v. Gale etcUs, 6W. Va. 525. 
 
298 BILLS IN CHANCERY. § 95 
 
 or in privity of estate make claim ; the plaintiff must ask no re- 
 lief against either of the defendants, but only to deliver the prop- 
 erty or to pay the money to' him to whom it of right belongs ; the 
 bill must aver that the plaintiff can in no other way be protected 
 from an imjust litigation in which he has no interest; no other 
 question than the right to the property can be raised or litigated 
 in the cause-; the bill must show that there are proper persons in 
 esse capable of interpleading and of setting up opposite claims, 
 and the plaintiff must admit a title against himself in each of the 
 claimants, and that each of them claims a right, and such a right 
 as they may interplead for.' Bills of this character may be filed 
 by any mere stakeholder or bailee ; by tenants of land where there 
 is a dispute about the rents ; by an agent where there is a contest 
 between his principal and a third person ; and by a sheriff where 
 there are conflicting equitable claims on the property he has 
 seized.^ 
 
 Bill Praying a Certiorari. 
 
 § 95. When an equitable right is sued for in an inferior court 
 of equity, and by means of the limited jurisdiction of the court 
 the defendant cannot have complete justice, or the cause is with- 
 out the jurisdiction of the inferior court, the defendant may file a 
 bill in chancery, stating the proceedings in the inferior court, and 
 its incompetency, and praying a writ of certiorari to remove the 
 cause into the court of chancery. 
 
 When the cause is so removed, the bill exhibited in the court of 
 chancery is considered there as an original bill, and is proceeded 
 upon as such.^ 
 
 Since the county courts in Virginia have been deprived of their 
 jurisdiction for the trial of causes, and the corporation courts have 
 been put upon an equal footing with the circuit courts, bills of 
 certiorari have fallen into comparative disuse ; but they still lie to 
 
 •Daniel's Chy. Pr., Vol. 2, p. 1560-61, and notes. 
 
 ^ Ibid. 1564 to 1566; Report of Bevisors, 764, note; see Ante, ? 57. 
 
 « Daniel's Chy. Pr., Vol. 2, p. 1586; Mitford's Eq. PI. 32-3, 49-50. 
 
§ 96 BILLS QUIA TIMET. 299 
 
 bring up a proceeding from before a justice of the peace to the 
 circuit court, and to prohibit him from determining a matter 
 brought before him of which he has no jurisdiction.' The ap- 
 pellate court may also in any case award a writ of certiorari to the 
 clerk of the court below, and have brought before it, where part 
 of the record is omitted, the whole or any part of such record.^ 
 
 BiUs Quia Timet. 
 
 § 96. Bills quia timet are in the nature of prevention, to accom- 
 plish the ends of precautionary justice, and are ordinarily applied 
 to prevent wrongs or anticipated mischief, and not merely to redress 
 them when done. 
 
 The manner in which the aid sought is given is sometimes by 
 the appointment of a receiver, to collect rents or other Income ; 
 sometimes by an order to pay a fund into court ; sometimes by 
 directing security to be given or money to be paid over ; and 
 sometimes by the mere issuing of an injunction or other remedial 
 process, thus adapting the relief to the precise nature of the par- 
 ticular case, and the remedial justice required by it.' 
 
 The relief under such a bill is not confined to cases where an 
 instrument having been executed is void upon grounds of law or 
 equity, but the courts have compelled forged instruments to be 
 given up without any prior trial at law on the question of the 
 forgery.* 
 
 Under peculiar circumstances the courts have interfered to 
 decree the specific delivery of chattels ; to compel a landlord to 
 restore to a tenant a certain stock farm taken by the former in 
 violation of his contract ; ^ at the instance of a surety, to compel 
 the debtor on a bond in which he has joined, to pay the debt when 
 
 ^ Miller v. Marshall, 1 Va. Cases, 158; 2 Va. Cases, 42; Minor' a Institutes, Vol. 
 4, Pt. 2, p. 1128. 
 ' § 3463. Code "West Va., Ch. 135 § 7. See 2 Barton's Law Pr., p. 1306. 
 'Story's Equity Jurisprudence, J 826. 
 *IiiV., 5 701. 
 'Ibid., 1710. 
 
300 BILLS IN CHANCERY. § 96 
 
 due, whether the surety has been actually sued or not ; ' under 
 similar circumstances to relieve a covenantee, under a covenant to 
 save him harmless ; where property is covenanted to be secured 
 for certain purposes and in certain events, and there is danger of 
 its being alienated or squandered, the court will interfere to secure 
 the property for the original purposes ; ^ to prevent a trust fund 
 from being converted to other purposes, diminished or lost by 
 gross negligence, or being diverted or squandered to the injury of 
 any claimant having a present or future fixed title thereto ; where 
 there is danger of waste of the assets of an estate, or collusion 
 with the debtor by an executor or administrator ; in cases of con- 
 troversies between creditors, annuitants and others ; ' to quiet 
 titles ; * where there is apprehension of one suffering from the 
 neglect, inadvertence or culpability of another ; ° and other like 
 circumstances.^ 
 
 The application for this species of relief is addressed to the 
 sound discretion of the court under the circumstances of the par- 
 ticular cases, and reUef will ordinarily be afforded where injury 
 may reasonably be apprehended,' the ground for such relief resting 
 upon the danger of irreparable mischief.* 
 
 Where the creditor of a non-resident firm sued out an attach- 
 ment before the debt was due, and another creditor whose debt 
 was due sued out a subsequent attachment, and thereupon the first 
 creditor filed an amended bill against the second creditor, alleging 
 fraud in the procurement of his debt and of a certain security 
 therefor ; upon the motion of the second attachment creditor, the 
 attachment first sued out was quashed, upon the ground that the 
 
 > Croughton v. Duval, 3 Call. 69; Bird v. Stout, 40 W. Va. 43. 
 ' Story' 3 Equity Jurisprudence, § 730. 
 ' Story's Equity Jurisprudence, ? 825 to 829. 
 'Daniel's Chy. Pr., Vol. 3, p. 2040. 
 'Randolph's Adm'x v. Kinney, &c., 3 Band. 397. 
 
 «See Fowler and Wife v. Saunders, 4 Call. 361; Eanholph, &c. v. Eandolph, 
 &c., 2 Leigh, 540. 
 
 ' Daniel's Chy. Pr., Vol. 3, p. 1961, note. 
 'Story's Equity Jurisprudence, § 710. 
 
§ 97 BILLS OP PEACE. 301 
 
 debt not being due, was not a proper subject of attachment against 
 a non-resident. The first attaching creditor sought to maintain 
 his bill upon the principles jvhich govern the courts in bills quia 
 timet, but the circuit court refused an appeal from the decision of 
 the county court quashing the attachment, whereupon, on appeal 
 to the supreme court of appeals, that court was equally divided, 
 and thus the decisions of the judges of the lower courts were 
 aMrmed.^ 
 
 Where a debt was due, a surety, whose principal was dead, was 
 allowed, on the principle quia timet, to file a bill against the cred- 
 itor and the executor of the debtor to compel the latter to pay the 
 debt so as to exonerate the surety from responsibility.^ 
 
 Where a testator devised the income of property in trust pri- 
 marily for one object, and if the income should be greater than 
 that object needs, the surplus to be applied to other objects, it was 
 held that a bill in the nature of a bill, quia timet would not lie in 
 anticipation of an incapacity in the trusts to be executed there- 
 after.' 
 
 Where the bill stated that the plaintiff was entitled to a fee 
 simple, and absolute estate in certain real and personal property 
 held by her, but that defendants insist that she only had a life 
 estate with remainder to them, and she prayed a decree declaring 
 and settling her rights, it was held that this was neither a bill of 
 peace, a bill to perpetuate evidence, nor a bill quia timet, and hence 
 it was dismissed for want of jurisdiction.^ 
 
 Bills of Peace. 
 
 § 97. Courts of equity, in order to put an end to oppression 
 and to prevent a multiplicity of suits, take cognizance of ques- 
 
 ' Devries & Co. v. Johnson & Wolfe, 27 Grat. 805. See also Williams et al v. 
 Tipton et al, 5 Humphreys, 66; 42 Am. Dec. 420. For the general rules govern- 
 ing bills quia timet and their application as means of relief, see Am. & Eng. Encyc. 
 of Law, Vol. 2, p. 258. 
 
 ' Stephenson v. Tavemers, 9 Grat. 398. 
 
 » Girard v. Philadelphia, 7 WaU. 1. 
 
 * Bandolph v. Eandolph, 2 Leigh, 544. 
 
302 BILLS IN CHANCERY. § 97 
 
 tions which involve legal principles only, and are triable in com- 
 mon law courts ; ' first, where the question has been repeatedly 
 tried and determined at law ; ^ and second, where multiplicity of 
 suits will be prevented. 
 
 The first instance is illustrated by the case where the defendant 
 in the chancery suit had brought five actions of ejectment against 
 the plaintifi"; had been non-suited in three of them, and had ver- 
 dicts against him in the other two. He had also filed two bills 
 against the plaintiff, both of which were dismissed. Then the 
 plaintiff, in order to be quieted in his possession, preferred a bill 
 for perpetual injunction. Lord Chief Baron Eyre said that at 
 law a man could not bring the same real action twice for the same 
 thing, but here ejectments being introduced in the place of real 
 actions, he may bring as many of them as he pleases at law ; ^ and 
 this is a reason why a court of equity should settle and quiet the 
 rights of people, and after so many trials grant a perpetual in- 
 junction.* 
 
 The cases in which bills have been filed to prevent a multiplicity 
 of suits are : where a right of fishery was claimed by a corpora- 
 tion throughout the course of a considerable river, and was op- 
 posed by the lords of manor and owners of adjoining lands ; where 
 disputes existed between lords of manor and their tenants, and 
 between the tenants of one man and those of another ; ° and where 
 several persons claim under one general right, they may file one 
 
 ' Trustees of Huntington v. Nicoll, 3 Johns. B. 595. See Woodward v. Seely, 
 11 Illinois 157; 50 Am. Dec. 445; note, p. 449 to 454. 
 
 2 Daniel's Chy. Pr., Vol. 2, p. 1661. 
 
 ^ A judgment in ejectment in Virginia is final (|| 2756, 2757; Code W. Va., 
 Ch. 90, §§ 35, 36), but a judgment in an action of unlawful detainer concludes 
 nothing but the then right to possession (§ 2721; Code W. Va., Ch. 89, ? 4). 
 Olinger v. Shepherd, 12 Grat. 471. 
 
 * Barefoot v. Fry, Bunb. 158; Bath v. Sheverin, Proc. in Chy. 261; Leighton v. 
 Leighton, 1 P. Wms. 671; Eobinson a Lord Byron, 2 Cox's Chy. Cas. 4; Ean- 
 dolph's Adm'x v. Kinney, &c., 3 Eand. 395; Daniel'^ Chy. Pr., Vol. 2, p. 1682. 
 
 * Trustees of Huntington v. Nicoll, 3 Johns. E. 595; Eandolph's Adm'x v. 
 Kinney, &c., 3 Eand. 396; Baird v. Bland, &c., 3 Munf. 570; Ambler d al v. 
 Warwick & Co., 1 Leigh, 195; Daniel's Chy. Pr., Vol. 1, p. 274. 
 
§ 98 BILLS TO PEEPETTJATE EVIDENCE. 303 
 
 bill for'the establishment of that right, without incurring the risk 
 of multifariousness, although the title of each plaintiff may be 
 distinct.' 
 
 Where the question is merely whether one or the other of several 
 persons is entitled to any particular property, and there has been 
 no actual suit between them, the bill cannot be maintained.^ 
 
 Bilk to Perpetuate Evidence. 
 
 § 98. The statute of Virginia^ makes provision for the per- 
 petuation of evidence where a suit is not pending, by filing a peti- 
 tion before a commissioner in chancery of the court wherein a bill 
 to perpetuate testimony might be filed, and after due notice and 
 the appointment by the commissioner of a guardian ad litem for 
 any infant or insane person concerned, the commissioner shall put 
 in wHting the evidence sought to be preserved, and shall return a 
 report of his proceedings, with the testimony taken by him, to the 
 clerk's office of the court by which he was appointed. Such testi- 
 mony shall have the same effect as if it had been taken on a bill 
 to perpetuate testimony, and the court may make such order as to 
 costs as to it may seem right. 
 
 If, however, a party proceed for this purpose by bill in chan- 
 cery, his bill must state the matter touching which the plaintiff is 
 desirous to have the evidence taken ; must show that he has some 
 interest in the subject, and that the defendant has an adverse in- 
 terest ; * and it must also pray leave to examine witnesses touch- 
 ing the matter so stated, to the end that their testimony may be 
 preserved and perpetuated. The bill should also show that the 
 facts to which the testimony proposed to be taken is conceived to 
 
 1 1 Daniel's Chy. Pr*, p. 345. 
 
 'Devoncher v. Newenham, 2 Sch. & Lef. 208; Randolph v. Eandolph, &o., 2 
 Leigh, 540; Bvish v. Martins, 7 Leigh, 320. As to how far equity will take juris- 
 diction to prevent circuity of actions, see Linney's Adm'ri;. Dare's Adm'r, &c., 
 2 Leigh, 588; Sale v. Dishman's Ei'drs, 3 Leigh, 548. 
 
 ' § 3369; Code W. Va., Ch. 130, § 39. 
 
 * Smith V. Turner eJ oZ, 4 Iredell's Equity, 433; 47 Am. Dec. 353; May v. Arm- 
 strong, 20 Am. Dec. 137. 
 
304 BILLS IN OHANCEEY, § 99 
 
 relate cannot be immediately investigated in a court of law ; as in 
 the case of a person in possession without any present disturbance, 
 or that before the facts can be investigated in a cdurt of law, the 
 evidence of a material witness is liable to be lost by his death, or 
 departure from the State, all of which ought to be verified by 
 affidavit, as is the case of all bills which have a tendency to change 
 the jurisdiction of a subject from a court of law to a court of 
 equity. The bill must be for the sole purpose of perpetuating the 
 testimony, and should not also pray relief Two objects cannot 
 be embraced in the same bill. And in order that the depositions 
 taken in pursuance of such a bill may afterwards be read, it must 
 appear that the witnesses are dead, or out of the power of the 
 court in which the subsequent cause is pending.^ 
 
 A mere expectancy, however strong, will not entitle a party to 
 maintain a bill to perpetuate evidence, but he must have a positive 
 interest. If, however, there be any vested interest, however slight 
 or trifling in value, whether it be absolute or contingent, present 
 or remote, and future in enjoyment, is wholly immaterial.^ 
 
 Bills for Partition. 
 
 § 99. The statutes of Virginia^ make ample provision, by 
 bill, petition or motion,* for the partition of both real and per- 
 
 • Minor's Institutes, Vol. 4, Pt. 2, p. 1128; Mitf. Eq. PI. 51; MiUer ?;. Sharp, 
 3 Eand. 41; Lawrence v. Swann, 5 Munf. 332. See also Story's Eq. PL, § 299 to 
 § 310; Daniel's Chy. Pr., Vol. 2, p. 1572 to 1574. 
 
 ' Story's Eq. PI., § 30L 
 
 » Code of Virginia, Ch. 114. Code of West Virginia, Ch. 79. 
 
 * Parker et aJs v. McCoy el als, 10 Grat. 594. There is no substantial difference 
 in this respect between the present statute and that in force when this decision was 
 made (Code 1849, Ch. 124), but even about the date of this decision a partition 
 at law was considered as obsolete (Mathews' Digest, Vol.' 2, p. 523, note. ) The 
 language of the several sections of the present Code, while not distinctly confining 
 the proceeding to a bill in equity, makes it evident that only that proceeding is 
 contemplated. It is very clear that from the start the statute meant to give juris- 
 diction by bill in equity. Davis v. Tebbs et ak, 81 Va. 603; 2 Minor's Institutes, p. 
 478. Jurisdiction in equity for partition seems indeed to be independent of the 
 statute. Koweyv. Gomgs, 13 111. 95; 54 Am. Dec. 427; Am. & Eng. Encyc. of 
 Law, Vol. 17, p. 679. At this day a bill in equity may be said to be the only 
 
§ 99 BILLS FOE PAETITION. 305 
 
 sonal estate/ declaring that tenants in common, joint^tenants, and 
 coparceners shall be compelled to make partition, and the cred- 
 itor of a part owner may also compel the the same ; ^ and although 
 any persons entitled to the property may be infants,^ insane per- 
 sons, or married women, such persons being before the court in 
 the way ordinarily provided,* or infants suing for partition by 
 their guardian,^ or where the name or share of any person in the 
 subject of the partition is unknown, so much as is known in rela- 
 tion thereto being stated in the bill,^ the court may make sale of 
 the property, or partition, or allotment, as may be right. 
 
 The circuit or corporation court where the estate, or any part 
 thereof, may be, has jurisdiction in such cases, and may take cog- 
 nizance of all questions of law ' affecting the legal title that may 
 arise in any proceeding ; ^ and either determine all questions itself, 
 or by an issue out of chancery.' 
 
 mode of compelling partition. Hudson v. Putney, 14 W. Va. 561; Moore v. 
 Harper, 27 W. Va. 362. 
 
 » S 2569; Code W. Va., Ch. 79, ? 6. 
 
 ^ Code, i 2562 as amended by act of February 23, 1898, Acts 1897-98, p. 488. 
 Smith V. Smith, 4 Band. 95; Minor's Institutes, Vol. 4, Pt. 2, p. 1214. 
 
 ' There can be no partition where it appears that one heir is alive, and that the 
 mother is pregnant of another child by the father. GUlespie v. Nabors, 59 Ala. 
 441; 31 Am. E. 20. 
 
 * By guardian ad litem or next friend, Parker et ai v. McCoy et als, 10 Grat. 594. 
 6 Zirkle v. McCue, 26 Grat. 517. 
 
 * Proceedings against such persons wiU be by publication. Ante, Ch. 4, § 83; 
 Ch. Ill, ^ 37. The biU must state both complainant's and defendant's titles. 
 Eamsay v. Bell, 3 Iredell's Eq. 209; 42 Am. Dec. 165. 
 
 ' Prior to the statute, if the title of the plaintiff was doubtful, the court would 
 have sent the parties to law to try it. Currin et ok v. Spraull et als, 10 Grat. 145 ; 
 Hudson et ai v. Putney et ai, 14 W. Va. 561. See also Moore v. Harper, 27 W. 
 Va. 362. But now a court of equity has fall power to pass upon all questions 
 necessary to justice between the parties, such as accounts of liens, priorities, etc. 
 Hinton „. Bland's Adm'r, 81 Va. 588; Bradley v. Zehmer, 82 Va. 688; Fry et al 
 V. Payne, 82 Va. 759; Bust v. Bust, 17 W. Va. 901. But as to making creditors, 
 as such, parties, see Ante, § 61, and Code, i 2562 as amended by act of February 
 23, 1898, Acts 1897-8, p. 488. 
 
 ° Independent of the statute the courts of equity have taken jurisdiction to de- 
 cree partition of estates, provided the plaintiff had a clear, legal title. Minor's 
 Institutes, Vol. 4, Pt. 2, p. 1212, and authorities cited. 
 
 ' Eep. of Eev. C. V., p. 641, note; Caperton et ai v. Gregory et ah, 11 Grat. 505. 
 
 20 
 
306 BILLS IN CHANCEEY. § 99 
 
 The statute ' now makes a decree in partition confirming any 
 partition or allotment in a stiit for partition vest in the correspond- 
 ing parties, between whom the partition or allotment is made, the 
 title to their shares under the partition or allotment, in like man- 
 ner and to the same extent as if the said decree ordered such title 
 to be conveyed to them and the conveyance was made accordingly. 
 It further^ provides that the proceeds of any sale made under 
 section twenty-five hundred and sixty-four shall, except as pro- 
 vided in section twenty-six hundred and twenty-six, be deemed 
 personal estate from the time of the confirmation of such sale by 
 the court. 
 
 Any two or more of the parties, if they so elect, may have their 
 shares laid off together when partition can be conveniently ^ made 
 in that way ; and when it cannot be conveniently made the entire 
 subject may be allotted to any party who will accept it, and pay 
 therefor to the other parties such sums of money as their interests 
 therein may entitle them to. 
 
 When an equal division of goods and chattels cannot be made 
 in kind among those entitled, a court of equity may direct the sale 
 of the same, and the distribution of the proceeds according to the 
 rights of the parties ; and if in any case the interests of those who 
 are entitled to the subject or its proceeds will be promoted by a 
 sale of the entire subject, or allotment of part and sale of the 
 residue, the court may order such sale and allotment, and make 
 
 ' 2 2565. Prior to this statute a mere decree in partition did not operate as a 
 conveyance of title. Boiling v. Teel, 76 Va. 487. This statute is also retro- 
 spective. 
 
 ' ? 2566. Prior to this statute it was held that it was left to the party entitled 
 to the proceeds to designate whether he would hold them as personalty or as 
 realty. And when, for any reason, that party was incapable of making such 
 designation, the court would hold them subject to all the incidents of realty. Tur- 
 ner V. Dawson, 80 Va. 841. ^ 
 
 ' Held that partition might be made of a mill and mill privileges. Hanson v. 
 Willard, 12 Maine, 142; 28 Am. Dec. 162. Of cases where partition is imprac- 
 ticable or impossible, see Am. & Eng. Encyc. of Law, Vol. 17, p. 686, but our 
 statute (? 2564; Code W. Va., Ch. 79, J 3), provides for allotment or sale where 
 partition cannot be conveniently made, 
 
§ 99 BILLS FOR PARTITION. 307 
 
 distribution of the proceeds of sale according to the respective 
 rights of those entitled, taking care when there are creditors of 
 any deceased person who was tenant in common, joint-tenant, or 
 coparcener, to have the proceeds of such deceased person's part 
 applied according to the rights of such creditors. It is a maxim 
 that partition does not affect the interests of third persons. Mort- 
 gagees and judgment creditors have no concern ^ with it, and when 
 they are made parties to the suit only in that character, the bill 
 will be dismissed as to them ; but where the incumbrance is created 
 upon the undivided share of one of the parties, it will continue a 
 lien upon his share when set apart to him in severalty.^ It is not 
 uncommon, however, in practice for judgment and other lien cred- 
 itors to come in by petition when a sale instead of a partition in 
 kind is decreed, and claim the application of their debtor's share 
 of the proceeds to the payment of their liens, and they may have 
 the right to come in where the lien is upon an undivided share, 
 because they are interested in seeing that that share is not unduly 
 diminished.' Where the creditor of a joint-tenant, tenant in com- 
 mon, or coparcener seeks to subject his debtor's interest to the 
 payment of his claim, it may become necessary to make the co- 
 tenants or coparceners parties to the cause, and have partition 
 made instead of selling the undivided interest. Where an order 
 of sale is made, if the dividend of any infant or insane party ex- 
 ceed the sum of three hundred dollars, making the calculation as 
 
 'But now by statute (Code, J 2562 as amended by act of February 23, 1898, 
 Acts 1897-8, p. 488), as a creditor of any part owner may compel partition and 
 subject the same to the payment of his claim, it would seem not only not to be error 
 to make the creditor a party to the suit in partition, but rather erroneous to 
 omit him. 
 
 » Agar V. Fairfax, 17 Ves. 544; Wotten, &c. v. Copeland, 7 Johns. Chy. E. 140; 
 Sebring v. Mersereau ei als, 1 Hopk. Chy. R. 501; Harwood a Kirby, 1 Paige, 
 471; Minor's Institutes, Vol. 4, Ft. 2, p. 1213; Colton v. Smith, 11 Pick. 311; 
 Bogges V. Meredith et cds, 16 W. Va. 1; Stevens v. McCormick, 90 Va. E. 735; 
 Martin v. Martin, 95 Va. 26; 27 S. E. E. 810. 
 
 ' The statute requires that care must be taken to protect the interests of cred- 
 itors of a deceased tenant in common, joint tenant, &c. J 2564. Code W. Va., 
 Ch. 79, § 3. 
 
308 BILLS IN CHANCERY. § 99 
 
 if the land were divided in kind, and not estimating it as a whole, 
 and excluding also the value of land held as dower by the widow,^ 
 the court may require security for the faithful application of the 
 proceeds of the interest of the infant or insane person, just as if 
 the sale was made under the provisions of the statute for the sale 
 of lands of persons under disability.^ 
 
 Upon allotment or sale to any of the parties, any person who 
 before the partition or sale was lessee of the lands allotted or sold 
 shall hold the same of him to whom such land is allotted or sold, 
 on the same terms as those on which by his lease he held it before 
 partition.' 
 
 A partition under this proceeding is made by any three of five 
 commissioners appointed for that purpose by the court. They 
 must be sworn, and in order to make out their report they may 
 view the subject for partition, have a survey of it made, and may 
 examine witnesses concerning it. The report must be in writing, 
 and must accurately and precisely describe the subject of division, 
 and if it be land, a survey containing the metes and bounds should 
 accompany the report. The allotment after division may be deter- 
 mined directly by the commissioners, or they may resort to the 
 lot,'' which plan is usually preferred." 
 
 The principles which govern awards of arbitrators are applica- 
 ble to some extent to the reports of commissioners. Great reliance 
 is placed on their discretion when appointed and acting in this 
 way ; but when it can be shown that they have committed a gross 
 error (although there is no -proof of partiality or corruption) an 
 exception to their report will for that reason be sustained, and the 
 report will be set aside.* 
 
 Upon the return of the report of partition, if an unsuccessful 
 
 ' Parker et als v. McCoy et ah, 10 Grat. 594. 
 
 2 Code of Va., Ch. 117; Code of W. Va., Oh. 83; Post, ? 170. 
 
 ' ? 2568; Code W. Va., Ch. 79, ? 6. 
 
 ■• Leading Cases in Equity, Vol. 2, Pt. 1, p. 884. 
 
 i> Minor's Institutes, Vol. 2, p. 423. 
 
 'Pgni^l's Chy. Pr., Vol. 2, p. 1336; Eanson v. High, 37 W. Va. 838, 
 
§ 99 BILLS FOR PAKTITION. 309 
 
 objection is made thereto, the final decree confirms the report ; or 
 if a sale be found necessary it is ordered to be made, in which 
 case the decree is not entirely final, the cause being reserved in 
 order that the court may superintend the sale. 
 
 Where an allotment of shares has been made and confirmed to 
 the several parties, the court directs them to execute mutual con- 
 veyances to each other ; at least that was the practice before the 
 present statute,^ for until its enactment the decree itself conferred 
 only an equitable title. A good and convenient practice is to ap- 
 point a special commissioner with direction to him to make the 
 proper deed or deeds, conveying all the interests of each party to 
 the others. 
 
 Where a tenant by the curtsey of lands purchased the residuary 
 interest of one of three heirs, and another interest was held by 
 infants, the court decreed a partition of the land at the suit of the 
 tenant by the curtsey ; " and it is a rule, that where both parties 
 claim under the same. person it is sufficient to prove the derivation 
 of the title from him without proving his title.' 
 
 If the widow of the person from whom the land descended is 
 alive and entitled to dower, she should be made a party to the 
 suit, and her dower should be assigned to her, and partition made 
 of the residue ; for it is error in her absence to make partition of 
 the land subject to her right of dower.* 
 
 » ? 2565; Minor's Inst., Vol. 4, Pt. 2, p. 1215; Ibid., Vol. 2, p. 424; Code 1873, 
 Ch. 174, I 7, 10; Story's Eq. Juris., Vol. 1, § 651-2; 2 Whaley v. Dawson, 2 Sch. 
 & Lef. 371-2; 2 Jackson's Adm'x, &c. v. Turner, 5 Leigh, ll9; Tennent v. Pat- 
 tons, 6 Leigh, 196; Custis v. Snead, 12 Grat. 260; Cox v. McMullin, 14 Grat. 82; 
 Howery v. Helms, &c., 20 Grat. 1; Frazier v. Frazier, 26 Grat. 500; Zirkle v. 
 McCue, 26 Grat. 517; WUson v. Smith, 22 Grat. 493. 'See also L. Case in Eq., 
 Vol. 2, Pt. 1, p. 865 to 920; many of the diflSculties here suggested being met by 
 the Virginia statute. Boiling v. Teel, 76 Va. 487; Lonvalle v. Menard, 1 GUman, 
 39; 41 Am. Dec. 161, notes p. 165; Dawson v. Lawrence, 13 Ohio, 543; 42 Am. 
 Dec. 210, note p. 213. A voluntary parol partition is good between the parties if 
 carried into effect by delivery of possession. Calhoun v. Hays, 8 Watts & Ser- 
 geant, 127; 42 Am. Dec, 275; Brown v. Wheeler, 17 Conn. 345; 44 Am. Dec. 
 550, note p. 556. , 
 
 ' Otley V. McAlpine's Heirs, 2 Grat. 340. 
 
 ' Hannon et als v. Hannah, 9 Grat. 146. * Custis v. Snead et cds, 12 Grat. 260. 
 
310 BILLS IN CHANCEEY. § 99 
 
 In decreeing partition the general rule is that the share of each 
 person shall be assigned to him in severalty ; and if it is proper 
 to pursue a different course, the facts justifying a departure from 
 the rule should, at least where infants are concerned, be disclosed 
 by the report, or otherwise appear, to enable the court to judge 
 whether or not their interests will be injuriously affected ; hence 
 it was held that this should have been made to appear before the 
 court departed from the general rule in a case where the same 
 parties were entitled to lands derived from their father, and also 
 to lands derived from their mother, when some or all of the parties 
 were infants.^ 
 
 The rules further require that there shall be no sale unless it 
 appears that partition cannot be made in some of the modes pro- 
 vided by the statute f but the facts necessary to warrant a sale 
 need not appear from the report of the commissioners or the depo- 
 sitions of witnesses, for it is sufficient if the facts appearing in the 
 record reasonably justify the decree for sale.^ 
 
 If partition cannot be made without impairing the portions of 
 some of the parties, the property may be divided into shares of 
 unequal values, and the inequalities may be corrected by a charge 
 of money on the more valuable in favor of the less valuable 
 shares.* Whatever plan is adopted and conclusion reached, the 
 decision of the court cannot be questioned in any collateral suit, 
 except for fraud or surprise.^ 
 
 An heir at law who has been advanced in the lifetime of his 
 ancestor is entitled to participate in the division of the real estate, 
 after the death of the widow, of that part which has been assigned 
 as dower to her, although in the former division of the estate he 
 had refused to bring his advancements into hotchpOt ; and where 
 one of the children who had refused to come in died after the 
 
 1 Zirkle v. McCne et ah, 26 Grat. 517; Casto v. Kintzel, 27 W. Va. 750. 
 
 ' Howery v. Helms, &c., 20 Grat. 1. 
 
 » Zirkle v. McCue et uU, 26 Grat. 517; Frazier v. Fraaier et cds, 26 Grat. 500. 
 
 * Cox V. McMuUin, 14 Grat. 82. 
 
 ^ Wnson and Wife, &c. v. Smith, 22 Grat. 493. 
 
§ 100 BILLS OP EEVIVOE. 311 
 
 death of the widow, leaving children, her husband was regarded 
 as a proper party plaintiff in a suit for a division of the dower 
 land.i 
 
 A bill for partition may also pray for an adjustment of the rents 
 between the parties, and this may be done in the suit.^ The general 
 rule upon whiph such an adjustment is made is that where a tenant 
 in common uses the property to the exclusion of his co-tenants, or 
 occupies and uses more than his just share and proportion, the 
 best measure of his accountability to his co-tenants is their share 
 of a fair rent of the property so occupied and used by him.^ There 
 may, however, be peculiar circumstances in cases making it proper 
 to resort to an account of issues and profits as a mode of adjust- 
 ment between the tenants in common. 
 
 The general rule has been held to be applicable to land used for 
 agricultural purposes only, and to salt works ; * but the exception 
 has been held to apply to lead mines ° and to iron mines.* 
 
 Bilk of Revivor. 
 
 § 100. A suit in equity which abates by conviction, the cessa- 
 tion of the powers of a personal representative or committee, 
 death or marriage, is in a condition of suspended animation, and 
 
 ' Persinger et ah v. Simmons et ok, 25 Grat. 238. 
 
 ' By petition also, i 2760; Code W. Va., Ch. 91, § 1. One partner occupying 
 premises is chargeable with rents. Holden, Adm'r, d. Peace, 4 Iredell, 223; 45 
 Am. Dec. 514; note, p. 518. As to improvements made by a co-tenant, see Lon- 
 valle D. Menard, 1 Gilman, 39; 41 Am. Dec. 161; note, p. 165. As to rents, see 
 Bogges V. Meredith, 16 W. Va. 1. A joint tenant who improves the common 
 property at his own expense is entitled to compensation for the improvements, 
 whether the co-tenant assented thereto or not. But this is only allowed as a matter 
 of justice, and will not be so estimated as to inflict injury upon the co-tenant. 
 BaUou V. Ballou, 94 Va. 350. 
 
 ' Early & Wife v. Friend, &c., 16 Grat. 21; Bird v. Bird, 15 Fla. 424; 21 Am. 
 E. 296; White et alsv. Stuart, Buchanan & Co., 76 Va. 546; Paxton v. Gamewell, 
 82 Va. 710. 
 
 *Id. 
 
 Graham v. Pierce, 19 Grat. 28. 
 
 ' Newman v. Newman, 27 Grat. 723. 
 
312 BILLS IN CHANCERY. § 100 
 
 except where provision is made otherwise by statute, the proper 
 way of restoring the case to life is by a bill of revivor. 
 
 Marriage of the female does not abate a cause, although her 
 husband must (unless otherwise provided by statute) be named in 
 the subsequent proceedings ; and while the death of the sole plain- 
 tiff or defendant abates the suit, yet it may be th^t the death of 
 one or more plaintiffs or defendants merely determines the interest 
 of the party thus dying, as in the case of a life-tenant, when as to 
 such a party no revival is necessary ; and the same is true where 
 the whole interest of the dead person survives to another party to 
 the suit. 
 
 Instances in which revival is not necessary are found in the 
 cases of trustees^ and executors when one dies not having pos- 
 sessed any of the property in question, or done any act relating to 
 it which may be questioned in the suit ; where the suit is by or 
 against the husband and wife in right of the wife, and the hus- 
 band dies under circumstances which admit of no demand by or 
 against his representative ; where one of several creditors suing 
 on behalf of themselves and other creditors dies ; where one of 
 the joint-tenants, parties to the suit, dies, although this is not true 
 of tenants in common ; ^ and where, after a decree that the de- 
 fendants should interplead, the plaintiff in a bill of interpleader 
 dies.^ 
 
 On the other hand, revival is necessary where the interest of 
 the person dying passes to his heirs or representatives ; where a 
 female plaintiff marries (unless she may continue to sue alone) ; 
 and where one sues in behalf of himself and other creditors, and 
 dies, there may be a revival by his personal representative, or any 
 creditor who has proved his debt may proceed with the suit for 
 the benefit of all the creditors.^ 
 
 1 A court of chancery must appoint a trustee in tte place of one who has died. 
 Strayer and Wife v. Long, 83 Va. 715. 
 = Story- sEq. PL, §356. 
 'Ibid., I 362. 
 * Story's Eq. PL, ? 364 to § 369. 
 
§ 100 BILLS OF EEVIVOE. 313 
 
 The revival should be in the name of the person to whom the 
 right accrues, or upon whom the obligation rests ; for instance, in 
 a case involving the title to land, it was decreed to belong to the 
 plaintifP, and the deed was directed to be made to him ; the plain- 
 tiff died, and the matter still undetermined in the suit was the 
 question of rents and profits. Here it was held that the revival 
 should be rti the name of the personal representative, and not of 
 the heirs ; ' but had the title to the land been undetermined at the 
 time of the plaintiff's death, the revival should have been against 
 the heirs. 
 
 Where a suit was revived in the name of " I. and L., adminis- 
 trators, C. T. A., Wilson, infant son and sole heir, and 
 
 Wilson, widow and devisee of the said John W. Wilson, deceased," 
 although it was not necessary to revive against the administrator 
 with the will annexed, and although the christian names of the 
 infant child and the widow were omitted, yet it was held that they 
 were sufficiently described to identify them.^ 
 
 A bill of revivor must state who were the plaiirtiffs and defen- 
 dants to the original bill, what its prayer or object wfas, the several 
 proceedings thereunder, and the abatement. It must then state so 
 much new matter, and no more, as is requisite to show how the 
 plaintiff became entitled to revive, and to charge that the cause 
 ought to be revived, and to stand in the same condition with re- 
 spect to the parties to the original bill as it was at the time when 
 the abatement happened ; and it must pray that the suit be revived 
 accordingly. It may also be necessary to pray that the defendant 
 may answer the bill of revivor, as in the case of an admission of 
 assets or an account of the personal estate being requisite from the 
 representative of a deceased party f but unless in such a case no 
 new defences, that is, defences not made in an answer to the origi- 
 nal bill, can be first set up to a bill of revivor, for such a bill puts 
 
 ' Bufihers v. Lewis' Ex'ors et als, 7 Leigh, 720. 
 « Wilson and Wife, &c. v. Smith, 22 Grat. 493. 
 3 Story's Eq. PI., ? 374. 
 
314 BILLS IN CHANCEEY. § 100 
 
 in issue nothing but the character of the new party brought in.* 
 There are two other proceedings to revive, called a " bill in the 
 nature of a bill of revivor," and a " bill of revivor and supple- 
 ment." 
 
 The distinction between bills of revivor and bills in the nature 
 of bills of revivor, is that the former in cases of deaths are founded 
 upon privity of blood, or representation by operation of law ; the 
 latter in privity of estate, or title by the act of the party. In the 
 former case nothing can be in controversy except whether the party 
 be the heir or personal representative ; in the latter, the nature 
 and operation of the whole act by which the privity or title is 
 created is open to controversy.^ 
 
 Where the death of a party whose interest is not determined 
 by his death is attended with such a transmission of his interest 
 that the title to it, as well as the person entitled, may be disputed 
 and litigated in the court of chancery — as in the case of a devise 
 of real estate — the suit cannot be continued at common law by a bill 
 of revivor ; but an original bill must be filed, upon which the title 
 may be litigated ; and this bill will have so far the effect of a bill 
 of revivor, that if the title of the devisee is established, the same 
 benefit may be had of the proceeding upon the former bill as if 
 the suit had been continued by a bill of revivor.' 
 
 A bill of revivor and supplement is a mere compound of the 
 other two species of bills, and in its separate parts it must be 
 framed and proceeded upon in the same manner. It becomes 
 proper where not only an abatement has taked place in a suit, but 
 defects are to be supplied, or new events are to be stated, which 
 have arisen since the commencement of the suit. Thus, if a suit 
 becomes abated, and by any act besides the event by which the 
 abatement happens, the rights of the parties are affected, as by a 
 settlement or a devise under certain circumstances, though a bill 
 
 1 Fretz V. Stover, 22 "Wall. 198. 
 
 ' Story's Eq. PL, ? 379. 
 
 "Minor's Institutes, Vol. 4, Pt. 2, p. 1138; Mitf. Eq. PI. 66-67-88. 
 
§ 100 BILLS OF REVIVOR. 315 
 
 of revivor merely may continue the suit so as to enable the parties 
 to prosecute it, yet to bring before the court the whole matter 
 necessary for its consideration, the parties must, by supplemental 
 bill, added to and made part of the bill of revivor, show the set- 
 tlement or devise, or other act, by which their rights are affected. 
 And in the same manner, if any other event which occasions an 
 abatement is accompanied or followed by any matter necessary to 
 be stated to the court, either to show the rights of the parties, or 
 to obtain the full benefit of the suit, beyond what is merely neces- 
 sary to show by or against whom the cause is to be revived, that 
 matter must be set forth by way of supplemental bill, added to the 
 bill of revivor.^ 
 
 In Virginia, although bills in the nature of bills of revivor, and 
 bills of revivor and supplement, are still used, simple bills of re- 
 vivor are no longer necessary, as the statute ' provides that where 
 a plaintiff or appellant dies, marries, becomes convict, or the 
 powers of a personal representative or committee cease, the revival 
 may be without bill or scire facdas, simply by motion, and as to 
 any party at any stage of the case the revival may be by scire facias.^ 
 
 If a party dies, or becomes convict of felony, or insane, or a 
 female party marries, or the powers of a party who is a personal 
 representative or committee cease, if such facts occur after verdict, 
 judgment may be entered as if it had not occurred ; and where 
 such facts occur in any stage of a case, whether it be in a court of 
 original or appellate jurisdiction, if it occur as to any of several 
 plaintiffs or defendants, the suit may proceed for or against the 
 others, if the cause of suit survive to or against them ; and no 
 suit shall abate as to any party sued jointly with another who shall 
 die during the pendency of such suit ; but in all cases where such 
 suit would have abated before January 7, 1876, the same shall be 
 
 1 Story's Eq. PI., ? 387. See also Minor's Institutes, Vol. 4, p. 1133; Westcott 
 V. Cody, 5 Johns. Chy. E. 342; Pendleton v. Fay, 3 Paige 204; Templeman v. 
 Steptoe, 1 Munf. 339. 
 
 2 2 3305. Code W. Va., Ch. 127, ? 1. 
 'Code, Ch. 161; Code W. Va., Ch. 127. 
 
316 BILLS IK CHANCERY. § 100 
 
 revived against the personal representative of the decedent, and 
 proceed thenceforward as a separate action against such personal 
 representative as though such decedent had been sole defendant. 
 
 If in any case of appeal, writ of error or supersedeas, there be 
 at any time in an appellate court, suggested or relied on in abate- 
 ment, the death of a party, or any other fact which, if it had 
 occurred after verdict in any action, would not have prevented 
 judgment being entered (as if it had not occurred), the appellate 
 court may, in its discretion, enter judgment or decree in such case 
 as if the said fact had not occurred. 
 
 "Where the party whose powers cease is defendant, the plaintiff 
 may continue his suit against him to final decree ; but he cannot 
 proceed against both such defendant and his successor, unless an 
 order that the suit proceed against the former party be entered at the 
 first term after service of a scire facias for or against such successor. 
 If the committee, husband, personal representative, heir, or devisee 
 of the plaintiff or appellant who was a party, or of the decedent 
 whose personal representative was plaintiff or appellant, shall not 
 revive the suit by motion or soire facias, at or before the second 
 term of the court next after that at which there may have been a 
 suggestion on the record of the fact making such scire facias or 
 motion proper, the suit of such plaintiff or appellant shall be dis- 
 continued, unless good cause be shown to the contrary.* 
 
 When in any suit in equity the number of persons exceeds 
 thirty, and any one of said parties jointly interested with others 
 in any question arising thereon shall die or marry, the court may 
 nevertheless proceed, if in its opinion all classes of interests in the 
 case are represented, and the interests of no one will be prejudiced 
 by the trial of the cause, to render a decree in such suit, as if such 
 person were alive or had not married, decreeing to the heirs at 
 law, distributees or representatives of such person (as the case 
 may require) such interest as such person would have been entitled 
 
 ' U 3310, 3311; Code W. Va., Ch. 127, U 6, 7. 
 
§ 101 CROSS BILLS. 317 
 
 to had such person been alive, or as if such person had not mar- 
 ried during the pendency of the suit.' 
 
 The clerk of the court in which the case is may issue the sdre 
 facias at any time, and an order may be entered at rules for a case 
 to proceed in the name of the proper party, although the case be 
 on the court docket.^ The process may be returned either to a 
 rule day or a term, the usual practice being to return it to rules ; 
 but if returned to a term the order of revival should be made in 
 the suit. 
 
 Gross Bills. 
 
 § 101. A cross bill is a bill filed by a defendant in a suit against 
 a plaintiff, or some other defendant, or both, in the same suit touch- 
 ing the matter iu question in the original bill ; and it may be either 
 to obtain a discovery in aid of the defence to the original bill, or 
 to obtain relief for all parties touching the matter of that bill.^ 
 
 A cross bill for discovery is needed where the plaintiff in the 
 suit cannot be examined as a witness, or by interrogatories filed in 
 the cause ;* but the cross bill for relief has a much more general 
 application. 
 
 This bill lies, among other instances, in the following cases : * 
 where the original bill is for the specific performance of a written 
 contract, which the defendant insists ought to be delivered up or 
 cancelled ; where a question arises between two defendants upon a 
 case made out by evidence arising from pleadings, and proofs be- 
 
 ' ? 3313; Code W. Va., Ch. 127, ? 9. 
 
 » ? 3309; Code W. Va., Ch. 127, ? 6. 
 
 ' Story's Eq. PL, J 389; W. Va. O. & O. L. Co. v. Vinal, 14 W. Va. 637. The 
 defendant who desires affirmative relief must generally seek it by a cross-bill (Tarle- 
 ton V. Victes, 1 GUman, 470; 41 Am. Dec. 193), but an answer is sometimes treated 
 as a cross bill. Hansford v. Coal Co., 22 W. Va. 70. See also Post, this section, 
 and Code W. Va., Ch. 125, U 35, 36. 
 
 * Daniel's Chy. Pr., Vol. 2, p. 1553. 
 
 " Where the bill was to establish an award, it was held that the invalidity of the 
 award could be set up by answer without the necessity of filing a cross bill. Tate 
 v. Vance, 27 Grat. 571, 
 
318 BILLS IN CHANCERY. § 101 
 
 tween the plaintiffs and defendants ; ^ where a matter of defence 
 arises after the cause is at issue f to answer the purpose of a plea 
 ■puis darien continuance at the common law ; ^ and where at the 
 hearing it appears that the suit already instituted is insufficient to 
 bring before the court all matters necessary to enable it to decide 
 upon the rights of all the parties.* 
 
 The cross bill should state the original bill, the parties thereto 
 and their rights, the prayer and objects of the bill, the proceedings 
 in the suit, and the rights of the party exhibiting the bill, which 
 are necessary to be made the subject of cross-litigation, or ground 
 on which he resists the claims of the plaintiff in the original bUl, 
 if that is the object of the new bill.' It should not introduce new 
 and distinct matter not embraced in the original bill, and it should 
 not make new parties f for as to such matters it is an original bill, 
 and the new matter cannot properly be examined at the hearing of 
 the first suit ;' but when the bill is against a co-defendant, the 
 plaintiff in the original suit should also be made a party.* 
 
 ' Morris D. Terrell, 2 Eand. 6; Mundy d. Vawter, 3 Grat. 518; Glenn !). Claik 
 etais, 21 Grat. 35; Toole r. Stephens, 4 Leigh, 581; Bank of Va. v. Craig, 6 Leigh, 
 399; Yerbyj). Grigsby, 9 Leigh, 387; Morris d. Coleman, 1 Bob. 505; Derbyshire v. 
 Jones, 94 Va. 142. See also Post, as to decrees between co-defendants. 
 
 » Story's Eq. PI., § 391 to 395. 
 
 'Mitford's Chy. PI. 99. * Daniel's Chy. Pr., Vol. 2, p. 1550. 
 
 6 Daniel's Chy. Pr., Vol. 2, p. 1555. 
 
 ' Shields v. Barrow, 17 How. 145. But a purchaser pendente lite may by a cross- 
 bill make himself a party to the suit. Daniel' s Chy. Pr. , Vol. 2, p. 1548, note; 
 Eiggs V. Armstrong et ah, 23 W. Va. 760; Derbyshire v. Jones, 94 Va. 142. The 
 statute of West Virginia (Code, Ch. 125, J 35) provides that "the defendant in a 
 suit in equity may, in his answer, allege any new matter constituting a claim for 
 affirmative relief in such suit in the same manner and with the same effect as if the 
 same had been alleged in a cross bill filed therein; and in such case, if the plaintiff 
 desires to controvert the relief prayed for in the answer, he shall file a reply in 
 writing denying such allegations of the said answer as he does not admit to be 
 tjue, and stating any facts constituting a defence thereto." And the statute further 
 provides, that in case a defendant allege new matter in his answer upon which he 
 relies for and prays affirmative relief, such defendant shall not file a cross bill in 
 the same cause except upon condition of striking from his answer all such matters 
 and prayers for affirmative relief as are contained iii such cross bill. See Kanawha 
 Lodge V. Swann, 37 W. Va. 178; Cunningham v. Hedrick, 23 W. Va, 591. 
 
 ' Story's Eq. PI., I 401. » q^^^ gq. PI. 85. 
 
§ 101 CROSS BILLS. 319 
 
 While no decree can be founded upon new and distinct matters 
 introduced by a cross bill which were not embraced in the original 
 suit/ yet the cross bill is not restricted to the issues of the original 
 bill,^ and it may set up additional facts, constituting part of the 
 same defence, relative to the same subject-matter.' 
 
 A cross bill being generally considered as a defence, or as a pro- 
 ceeding to produce a complete determination of a matter already 
 in litigation,^ the plaintiff is not, at least against the plaintiff in 
 the original bill, obliged to show any ground of equity to support 
 the jurisdiction of the court f but if the cross bill seeks relief 
 which is of an equitable nature, it is open to demurrer if it does 
 not contain all the proper allegations which confer an equitable 
 title to such relief, and in granting it the courts allow equitable 
 conditions as in original bills.' It is also settled law that a party 
 shall not question in his cross bill what he has admitted in his 
 answer, ppr in any wise contradict his answer, to which he has 
 previously sworn.'^ 
 
 In England it is not indispensable that a cross bill should be 
 filed in the same com:t in which the original bill is filed ; and, 
 although the rule does not appear to have been definitely settled 
 in America, it has be'en determined that there cannot be a cross 
 bill in a state court to an original bill pending in a circuit court 
 of the United States.' Since, however, the cross bill is auxiliary 
 to the original suit, and a graft or dependency, on it,' it is hard to 
 see how it could be maintained unless it is brought in the same 
 court as the original bill. 
 
 ^ Cross V. De Valle, 1 Wall. 5; Derbyshire v. Jones, 94 Va. 140. 
 
 'Daniel's Chy. Pr., Vol. 2, p. 1549, notes. 
 
 ^Underbill v. Van Cortlandt, &c., 2. Johns. Chy. E. 355; Brown, &c. v. Story, 
 2 Paige, 594; 1 Hopkm's Chy. E. 58. 
 
 * So that the court may direct evidence taken in the original suit to be read under 
 the cross bill. Smith's Ei'x v. Proffitt's Adm'r et als, 82 Va. 832. 
 
 5 Daniel's Chy. Pr., Vol. 2, p. 1549; Dickinson v. Eailroad Co., 7 W. Va. 390. 
 
 « Story's Eq. PL, § 630; Mason v. Gardner, 4 Bro. C. C. 436. 
 
 ' Hudson V. Hudson, 3 Band. 117. 
 
 'Story's Eq. PL, §400. 
 
 ' Eubber Company v. Goodyear, 9 Wall. 809. 
 
320 BILLS IN CHANCERY. § 101 
 
 A cross bill should never be brought where the party can obtain 
 in the original suit the same relief without it ; and where the cross 
 bill seeks no discovery, and sets up no defence which might not 
 have been as well taken by answer, the bill will be dismissed with 
 costs. ^ Hence, where the party might have raised with the same 
 effect before the commissioner every question which could be pre- 
 sented in the cross bill, such a bill was deemed unnecessary,^ and 
 when filed under such circumstances it is open to demurrer.' 
 
 According to the practice of the English chancery courts, if the 
 cross bill is filed before the answer to the original bill is put in, and 
 such answer is then filed in due time, all proceedings in the original 
 cause are stayed until the cross bill is answered, and then both 
 causes proceed pari passu ; * and in Virginia, it is provided by 
 statute,^ that where a cross bill is filed, the defendants in the first 
 bill shall answer it before the defendants in the cross bill are com- 
 pelled to answer that, which statute, however, only coi^firms the 
 pre-existing rule.* But it should be observed that this priority of 
 the plaintiff in the original bUl may be lost by his amending it. 
 
 The rule is that there should be as little delay as possible in 
 filing the cross bill, the proper time indicated being when the 
 answer to the original bill is put in, and before issue is joined by 
 filing the replication. 
 
 If the cross bill is not filed before or at the time of answer- 
 ing in the original suit, the delay must be accounted for, or the 
 proceedings will not be stayed f but as the time at which a cross 
 bill may be permitted to be filed is so much a matter of discretion 
 
 • Daniel's Chy. Prac, Vol. 2, p. 1551, note; Armstrong v. Wilson et als, 19 W. 
 Va. 108; Scott and Wife v. Eowland et ak, 82 Va. 497. 
 
 ' Moorman v. Smoot and Wife et als, 28 Grat. 86. 
 
 ' Daniel's Chy. Pr.,Vol. 2, p. 1549, notes. See also Strotlier's Adm'r v. Strother's 
 Adm'r, Va. Law Journal, 1879, p. 636. 
 
 * Eamkissenseat v. Barker, 1 Atk. 21; White v. Buloid, &c., 2 Paige, 164. 
 6 ? 3254. 
 
 « Stewart v. Koe, 2 P. Wms. 435; Long v. Bicton, 2 Atk. 218; Johnson v. Frear, 
 2 Cox, 371, NoeU v. King, 2 Madd. (Am. ed.) 547-48; Abbott's U. S. Pr., Vol. 
 1, p. 145; Minor's Institutes, Vol. 4, p. 1135. 
 
 ' Daniel's Chy. Pr., Vol. 2; p. 1549, note. 
 
§ 101 CEOSS BILLS. 321 
 
 with the court, under all the circumstances of the case, no more 
 general rule than that already indicated can be laid down.^ 
 
 When the cross bill is filed after answer to the original bill, the 
 general rule of practice in England is, not to stay proceedings in 
 the original cause, but to allow that to proceed to a decree, staying 
 the decree if necessary until the cross bill is ready to be heard. 
 Upon occasion, also, the court will, on application, enlarge the 
 time within which evidence in the original cause may be taken, 
 which will to that extent, stay the proceedings therein so as to in- 
 crease the chance of maturing the cross bill for hearing.^ But 
 since in Virginia depositions may be taken at any stage of a cause 
 prior to the final hearing, the English rules as to the consequences 
 of filing a cross bill at any particular stage are of less importance, 
 although they may, to a considerable extent, govern the courts in 
 determining whether the original cause shall be postponed to await 
 the maturing of the cross bill ; for the courts will not suspend the 
 hearing of the original cause on account of a cross bill, when that 
 cross bill has been filed at an unreasonably late period, or when 
 the plaintiff in the cross bill has practiced delay in preparing it 
 for a hearing.* 
 
 The court itself may direct a cross bill to be filed,* and it also 
 sometimes happens that in disposing of the whole subject of a suit 
 the court decrees relief to which the parties would be entitled on 
 a cross bill. In such case? filing the cross bill would be a mere 
 formality," and may be dispensed with ; and even when a cross bill 
 
 ' Story's Eq. PI., i 396; Baker V Oil Tract Company, 7 W. Va. 454. The stat- 
 ute of West Virginia (Code Ch. 125, § 35-36) provides tliat the answer may set 
 up matter for affirmative relief as if it was a cross bill, and for the averment of the 
 answer being controverted by a special reply in writing. See Paxton v. Paiton, 
 38 W. Va. 616. 
 
 ' Eamkissenseat v. Barker, 1 Atk. 21; Creswick v. Creswick, 1 Atk. 281; Aylet 
 V. Easy, 2 Ves. Sr. 336; Dalton v. Carr, 16 Ves. 93; McConnico v. Moseley, 4 
 CaU. 360; Minor's Institutes, Vol. 4, p. 1135. 
 
 'Sterry, &c. v. Arden, &c., 1 Johns. Chy. R. 62; Gouvemeur, &c. v. Elmen- 
 dorf, Ac, 4 Johns. Chy. E. 357; White t;. Buloid, &c., 2 Paige, 164. 
 
 «Tate V. Vance, 27 Grat. 574; Daniel's Chy. Pr., Vol. 2, p. 1550. 
 
 * Taylor v. Beale et ah, 4 Grat. 99. 
 21 
 
322 BILLS IN CHANCERY. § 101 
 
 would strictly be required, an answer' or a petition^ may be treated 
 as a cross bill, to enable the court to do full justice in the cause; 
 A cross bill is prepared and signed by counsel in the same way 
 as an original bill ; ' parties defendants to it are as necessary as to 
 original bills, and their appearance is enforced by process in the 
 same manner ; * and the bill must be filed by leave of ' court ; for 
 where a party petitioned for leave to file an answer and a cross 
 bill,* and leave was given to file the answer, but not the cross bill, 
 the filing of it subsequently without leave was regarded as an 
 irregularity, for which it was set aside.' 
 
 iMettert's Adm'r v. Hagan, 18 Grat. 234; Tate i>. Vance, 27 Grat. 574; Ken- 
 drick et ofe v. Whdtney et ah, 28 Grat. 655; Sands v. Lynliam, &c., 27 Grat. 291; 
 CraUe v. Cralle, 79 Va. 182; Wayland, &o. v. Crank's Ex' or, 79 Va. 602; Adkins 
 V. Edwards, 83 Va. 300; Cunningham v. Hedrick, 23 "W. Va. 176; Hansford v. 
 Coal Co., 22 W. Va. 70. For the rule in West Virginia, see Ante, p. 318, note 6, 
 and Kanawha Lodge v. Swan, 37 W. Va. 176. 
 
 ' Sayers et als v. Wall et als, 26 Grat. 354. But see Washington Eailroad u. 
 Bradleys, 10 Wall. 302. The statute of West Virginia (Code, ? 35, Ch. 125) 
 provides that the answer may allege any new matter constituting a claim for affirma- 
 tive relief against the plaintiff or any defendant in the suit, just as if it had been 
 alleged by a cross bill; and in such case the same may be controverted by a special 
 reply in writing denying the allegations and stating such defences as he may have 
 thereto. But if the defendant allege in his answer new matter upon which he 
 relies for and prays affirmative relief, such defendant shall not file a cross bill in 
 the same case except upon condition of striking from his answer all such matter 
 and prayer for affirmative relief as are contained in the cross bill. Under this 
 statute it is held that an answer containing new matter constituting a claim for 
 affirmative relief, may be taken for confessed as against the plaintiiT but not against 
 another defendant without service of process on him to reply. Outside of an an- 
 swer, however, filed under the statute, relief may be given against the plaintiff 
 but not against a co-defendant. To affect him resort must be had to a cross bill or 
 an answer under the statute. Goff v. Price, 42 W. Va. 385. An answer under 
 this statute, after responding to the biU, must state the new matter for affirmative 
 relief with the same particularity and certainty under the principles of equity 
 pleading, as is required in a formal cross bill, stating a case for equitable relief 
 pertaining to the matter in question in the biU and not one foreign to it, and it 
 must name the persons interested in such new matter and make them parties by 
 calling for process against them, and must contain such a prayer for relief as a 
 cross bUl would in the case. Id. ' Daniel's Chy. Pr., Vol. 2, p. 1549, note. 
 
 * Washington Railroad v. Bradleys, 10 Wall. 302. 
 
 * A case in which a bUl was held to serve the double purpose of an answer and a 
 cross bill. Kyle's Ex' or v. Kyle, 1 Grat. 540. 
 
 * Bronson v. La Crosse KaUroad Company, 2 Wall. 303. 
 
§ 102 BILLS FOE DISCOVERY. 323 
 
 When a cross bill and an answer are filed in a case, and the 
 decree undertakes to dispose of the whole case, it should dispose 
 of the issue raised in them ; ^ but an opinion expressed by the 
 judge upon a claim made in the defendant's answer, which -has ho 
 connection with the relief sought in the bill, and is not necessary 
 to be decided, does not conclude the question when it is afterwards 
 set up by the defendant by a cross bill in the cause.^ 
 
 Bills for Discovery. 
 
 § 102. Every bill in chancery asks from the defendant an an- 
 swer upon oath (or the oath is waived as the case may be) as to all 
 the matters charged in the bill, and seeks from him a discovery of 
 all such matters ; but that can only be technically a bill of discovery 
 which calls for the disclosure of facts resting in the knowledge of 
 the defendant, or of deeds or writings or other things in his custody 
 or power,' and which seeks no relief in consequence of the dis- 
 covery, although it may pray for a stay of the proceedings at law 
 until the discovery is made.* A bill of discovery must state the 
 matter touching which discovery is sought, the interest of the 
 plaintiff and defendant in the subject, and the facts and circum- 
 stances upon which the right of the plaintiff to require the dis- 
 covery from the defendant is founded. It should pray that the 
 defendant may make a full discovery of the matter thus stated, 
 and it may also pray any equitable assistance of the court, which 
 
 1 Moore v. Huntington, 17 Wall. 417; Story's Eq. PI., § 311. 
 
 ^ Niday v. Harvey & Co. e( als, 9 Grat. 454. 
 
 'Stor/s Eq. PL, I 311; Prices. Tyson, 3 Bland. 392. 
 
 * Bills of discovery for these purposes are not necessary in Virginia, as the statute 
 provides simpler and speedier methods of attaining the same ends. ^§ 3370-3371; 
 Code W. Va., Ch. 130, § 43, corresponds to ? 3371 of the Code of Virginia, which 
 is the process to compel the production of documents, &c. ; but the section corres- 
 ponding to § 3370 was repealed by the Code of 1868. As to the disuse of bills of 
 discovery in Virginia because of the provisions of the sections of the Code cited, see 
 Minor's Institutes, Vol. 4, pp. 690-691. But these sections do not prevent the use 
 of bills of discovery. EusseU v. Dickeschied, 24 W. Va. 68. The right to call 
 a party in interest as a witness dispenses generally with the necessity for either the 
 statutory prsvision or for the bill of discovery. 
 
324 BILLS IN CHANCEEY. § 102 
 
 is merely consequential upon the prayer for discovery; butjt 
 should not pray general relief, for then it is a bill for relief 
 
 If it prays that the defendant may abide such order or decree 
 as the court may think proper, it it a bill for relief; but if it prays 
 that he may abide such order as the court may think proper, with- 
 out the word decree, it is said not to be a bill for relief.* 
 
 Bills for relief may also contain prayers for the discovery of 
 facts which are essential to the relief prayed in the bill ; and even 
 where the ordinary relief, but for the necessity for discovery, would 
 be given at law ; yet when a party asserting his demands comes 
 properly into equity for a discovery, the court having possession 
 of the subject will proceed to decide the case without turning the 
 party round to a court of law.^ 
 
 If relief is prayed for it must appear by affidavit that the party 
 has not, without a discovery; the means of proving the fact or writ- 
 ing in question ;' for it is only on that circumstance that the ju- 
 risdiction' of the court to give relief is founded. But a bill for dis- 
 covery merely requires no such affidavit, nor is it needful that the 
 discovery should be indispensable to the party's .case. He is entitled 
 to it if he states and shows that it is material evidence although 
 merely cumulative ;* but if it is not material, the bill is demurrable.' 
 
 ' Daniel's Chy. Pr., Vol. 2, p. 1557; Price v. Tyson, 2 Bland. 392; 22 Am. Dec. 
 279. If also for relief, it is regarded as an original bill. Curan v. Colbert, 3 Ga. 
 239; 46 Am. Dec. 427. 
 
 2 Chichester's Ex'x v. Vass' Adm'r, 1 Munf. 98; Chinn v. Heale, Id. 63; Arm- 
 strong, &c. V. Gilchrist, 2 Johns. Cas. 424; Rathbone, &c. v. Warren, 10 Johns. 
 E. 587; Lyons v. MUler, 6 Grat. 427; Wick v. Dawson, 42 W. Va. 43; 24 S. E. E. 
 589; Yates v. Stewart, Adm'r, 39 W. Va. 124; Hanly v. Watterson, 39 W. Va. 
 214; Thompson v. Whitaker Iron Co., 41 W. Va. 580; 23 N. E. E. 797; Hotch- 
 kiss V. Plaster Co., 41 W. Va. 357. 
 
 ' But it is not meant by this that he must aver that the discovery is absolutely 
 necessary or indispensable for the maintenance or defence of the plaintiff' s claim. 
 It will be sufficient to state and show that it is material evidence for him, although 
 it be merely cumulative. Bussell ii. Dickeschied, 24 W. Va. 61. Must aver that 
 the evidence is material and necessary. Collins, &c. v. Sutton, 94 Va. 127. 
 
 *Mitford's Chy. PI., 52-53, 155; Story's Eq. PI., ? 324; Cooper's Eq. PL, 198, 
 208; Minor's Inst., Vol. 4, Pt. 2, p. 1130; Montagues. Dudman, 2 Ves. Sr. 398. 
 
 5 Childress et cds v. Morris, 23 Grat. 802. 
 
§ 102 BILLS FOE DISCOVERY. 325 
 
 If, however, it appears from the bill and answer,' or on the 
 hearing ^ from the proofs in the cause,^ that the allegations upon 
 which the jurisdiction of the court rests are false, and that the 
 party did not need a discovery, his bill will be dismissed/ 
 
 Courts of equity will not entertain a bill for a discovery by one 
 who has not an interest in the subject ; nor to aid the promotion 
 or defence of a suit not purely of a civil nature, such as criminal 
 prosecutions, penal actions, and cases involving moral turpitude, or 
 a mere personal tort f nor to assist a suit in another court, if the 
 latter is of itself competent to grant the same relief; nor where a 
 discovery is against the policy of the law from the relations of the 
 parties, as between husband and wife, or the administrator of the 
 husband and the wife, counsel and client, and the like ; nor against 
 arbitrators, to compel a discovery of the grounds on which they 
 made their award ; nor where the party from whom the discovery 
 is sought is a mere witness,^ and has no interest in the subject of 
 the suit, unless he be an officer of a corporation, an arbitrator 
 charged with fraud, corruption, or other gross misconduct, or an 
 attorney or counsel who has assisted his client in obtaining a 
 fraudulent deed ; nor where one is a bona fide purchaser of prop- 
 erty without notice of the plaintiif' s claim f nor may a party be 
 
 1 HaU's Ex'or v. Smith et ah, 25 Grat. 70. 
 
 » Childress et ds v. Morris, 23 Grat. 802. 
 
 ^ McFarland v. Hueter, 8 Leigh, 492; Gregory v. Marks, 1 Band. 355; Eankin 
 V. Bradford, 1 Leigh, 163; Hardin v. Hardin, 2 Leigh, 572; Meze v. Mayse, 6 
 Band. 658; Webster v. Couch, 6 Band. 519. 
 
 * Jones V. Bradshaw and Others, 16 Grat. 355. 
 'Daniel's Chancery Practice, Vol. 2. p. 1557. 
 
 * Only a party to a suit, it is said, can be compelled to produce books and papers 
 in his possession (Mosley «. Green, 11 Paige, 240; 42 Am. Dec. 112), but the 
 better opinion seems to be that a witness is not entitled to refuse to produce a 
 document in his possession only because its production may expose him to a civil 
 action or because he has a lien on it. Am. & Eng. Encyc. of Law, Vol. 7, p. 105. 
 Provision is made in Virginia by statute for such cases. ? 3353; Code W. Va., 
 Ch. 130, I 26; 1 Bart. Law Pr. 452. 
 
 'Story's Equity Jurisprudence, Vol. 2, ? 1480 to § 1503. 
 
326 BILLS IN CHANCERY. § 103 
 
 compelled to disclose anything by which a penalty would be in- 
 curred.* 
 
 If the discovery is sought in aid of another suit, the bill must 
 state that the suit has been or is intended to be brought. If 
 pending, its nature must be set forth with reasonable certainty, 
 and if not brought, the nature of the claim or right to support 
 which, and against whom in particular, it is intended to be brought, 
 must be set forth.^ 
 
 The general rule is, that after a verdict at law a party comes 
 too late with a bill of discovery.^ To entitle a court of equity to 
 interfere under such circumstances there must be a clear case of 
 accident, surprise or fraud. ^ 
 
 Bills for discovery have been entertained to obtain possession of 
 negotiable instruments alleged to have been purloined ; ^ to enforce 
 a decree in admiralty which has become a lien on land ; ^ to com- 
 pel a discoveiy from a defendant as to whether he has not made a 
 promise to pay a bond otherwise barred by the statute of limita- 
 tions ; ' and by an administrator of a principal against the general 
 agent of his intestate.* 
 
 Bills for Divorce. 
 
 § 1 03. Jurisdiction of bills for divorce belongs exclusively to 
 the circuit and corporation courts' in chancery, and they may be 
 either for a divorce a mensa d toro, or a vinculo ij^atrimonii. 
 
 ' Northwestern Bank v. Nelson, 1 Grat. 110; Poindexter, &c. v. Davis, 6 Grat. 
 481; Post, I 112, Div. 9. 
 
 ^ Story's Eq. PI., § 321. 
 
 ' Green & Suttle v. Massie, 21 Grat. 356. 
 
 * Brown v. Swann, 10 Peters, 498. As to the application of this rule to cases of 
 usury, see the case cited, and also Ante, Ch. 1, ? 7, 8, and Post, ? 168. 
 
 ^ Baldwin v. Ely, 9 Howard, 580. 
 
 ^ Ward el 61 v. Chamberlain et al, 2 Black. 430. 
 
 ' Baker v. Morris's Adm'r, 10 Leigh, 284. 
 
 ® Simmons v. Simmons' Adm'r, 33 Grat. 451. 
 
 Constitution of Virginia, 1869, Art. 6, ?§ 13, 15; § 2259 to § 2264 and § 3055. 
 The circuit courts in West Virginia. Code, Ch. 64, § 7. * 
 
§ 103 BILLS FOE DIVOECB. 327 
 
 Marriage between a white person and a negro/ where parties 
 under the age of consent marry and separate during such non-age 
 and do not cohabit afterwards,^ and where either of the parties is 
 already married, are absolutely void without a decree for divorce 
 or other legal process. Marriages prohibited by reason of con- 
 sanguinity or affinity between the parties, or where either of them 
 was insane or incapable from physical cause from entering into the 
 marriage state, are, if solemnized withiu the State, void from the 
 time they are so declared by a decree of divorce or nullity, or 
 from the time that any party is convicted under a prosecution for 
 marrying within the prohibited degrees.^ 
 
 Whether the marriage be void or simply voidable, the court has 
 jurisdiction to decree a divorce, except that a party of the age of 
 consent who marries with one under age cannot bring a suit for 
 divorce ; and where there is a doubt about the validity of any 
 marriage, either party may file a bill for its affirmance, and the 
 court may conclusively determine its validity/ 
 
 The grounds for a divorce from bed and board are cruelty, rea- 
 sonable apprehension of bodily hurt, abandonment or desertion,^ 
 or as it is otherwise stated, " intolerable cruelty, adultery, per- 
 petual disease, and the like." * Adultery is not a proper ground 
 for divorce if it be brought about by the other party's procure- 
 ment or connivance, or if condonation is proved by the complain- 
 ant's cohabiting with the guilty party after knowledge of the 
 adultery, or if the defendant successfully recriminates by showing 
 infidelity on the complainant's part. The effect of cohabitation 
 
 ' Ex parte Edmund Kinney, 30 Grat. 858; McPherson v. The Commonwealth, 
 28 Grat. 939; Scott v. Eant, 88 Va. 721; 2 Bart. Law. Pr. 1181. 
 
 2 2254; Code W. Va., Ch. 64, § 1. 
 
 ' 2252; Code W. Va., Ch. 64, § 1; § 3783; Code W. Va., Ch. 149, ? 3; U 2224, 
 2225; Code W. Va., Ch. 63, U 9, 10. 
 
 * U 2255, 2256; Code W. Va., Ch. 64, § 4. 
 
 *? 2258. "Inhuman treatment, reasonable apprehension of bodily hurt, 
 abandonment, desertion, or where either party after marriage becomes a habitual 
 drunkard." Code W.. Va., Ch. 64, § 6. 
 ■* •'Minor's Institutes, Vol. 4, p. 304; Ibid., Vol. 1, p. 253 et seq; 3 Bl. Com. 94. 
 
328 BILLS IN CHANCEEY. § 103 
 
 as proving condonation, is less stringent on the wife than on the 
 husband ; and it is an established maxim that a divorce is never 
 to be decreed for any cause upon the confession of the parties 
 merely, without auxilliary proof, for otherwise the way would be 
 open to collusion and fraud.* 
 
 What acts, or what length of time, constitute such an abandon- 
 ment and desertion as entitles a party to a divorce a mensa et toro, 
 are neither fixed by statute nor definitely determined by decisions 
 of the courts. The discretion of the court is not therefore in this 
 proceeding limited to any fixed period ; but in this respect is to be 
 soundly exercised according to the facts and circumstances of each 
 particular case, and whenever there is an actual breaking off of 
 matrimonial cohabitation, combined with the intent to desert in the 
 mind of the offender, in such case desertion is established, and the 
 party deserted is entitled to a divorce a mensa et toro, and if it be 
 the wife, she is entitled to alimony.^ 
 
 It has been held, however, that a mere separation by mutual 
 consent is not a desertion in either, nor as a matter of proof can 
 desertion be inferred against either from the mere unaided fact that 
 they do not live together, although protracted absence, with other 
 circumstances, may establish the original intent.' Nor does the 
 fact that a husband has been rude and dictatorial in his speech, 
 exacting in his demands, and sometimes unkind and negligent in 
 
 'Minor's institutes, Vol. 1, p. 256. 
 
 ' Bailey v. Bailey, 21 Grat. 48. Desertion is no ground for divorce when it is 
 caused by the misconduct of the other party, as when the husband made an un- 
 founded accusation of unchaste conduct against the wife. Hardin v. Hardin, 17 
 Ala. 250; 52 Am. Dec. 170. As to what is regarded as constituting desertion, see 
 Burk V. Burk, 21 W. Va. 445. Both parties cannot be guilty of wilful desertion 
 at one and the same time. Wass v. Wass, W. Va.; 23 S. E. R. 537. These 
 three things seem to constitute the desertion which is a ground for divorce: (1) 
 Cessation from cohabitation continuing the necessary time; (2) the intention in 
 the mind of the deserter not to resume cohabitation; and (3) the absence of the 
 party's consent to the separation, or conduct justifying the same. Am. & Eng. 
 Encyc. of Law, Vol. 5, p. 799, and cases cited in the notes from p. 799 to p. 806. 
 
 " Bailey v. Bailey, 21 Grat. 48; Latham, by &c. v. Latham, 30 Grat. 307; Har- 
 ris V. Harris, 31 Grat. 29. 
 
§ 103 BILLS FOE rnvoRCE. 329 
 
 his treatment of his wife, even when she was sick, and worn and 
 weary in watching and nursing their sick child, constitute legal 
 ground for her leaving him so as to entitle her to a divorce.' 
 
 The statute of West Virginia includes the instance of either 
 party becoming after marriage a habitual drunkard as ground for 
 divorce. Of this it is said that " there must be both drunkenness 
 and a iiabit. Drunkenness is. in this sense the effect of alcoholic 
 liquors, not of opium or chloroform. A habit is the frequent and 
 regular occurrence of excessive indulgence, or getting drunk 
 whenever exposed to temptation, or being usually drunk in busi- 
 ness hours, or being drunk for twelve and fifteen days at a time 
 four or five times each year for fifteen years, and being driven to 
 drink by any excitement." ^ But it may well be that a man or 
 woman may be proven to be a habitual drunkard by proof of cir- 
 cumstances less in degree or in continuity than those named in the 
 quotation. 
 
 The other grounds assigned by the Virginia statute are cruelty 
 or reasonable apprehension of bodily hurt. The statute of West 
 Virginia uses the terms, " cruel or inhuman treatment, reasonable 
 apprehension of bodily hurt," and further adds, " a charge of 
 prostitution made by the husband against the wife shall be deemed 
 cruel treatment within the meaning of this section." While the 
 words thus added give a ground not specifically contained in the 
 
 ' Carr v. Carr, 22 Grat. 168. But three causes are well laid down as justifying 
 desertion by either party: " (1) By the consent expressed or implied of the party 
 alleged to have been deserted; (2) by such conduct on the part of the other party 
 as is, 33 against such other, a cause for divorce; and, perhaps (3), by such conduct 
 on the part of the other as is cruel and outrageous, though not amounting to a 
 cause for divorce." Am. & Eng. Encyc. of Law, Vol. 5, p. 805, and notes. In- 
 tentional abandonment of all matrimonial intercourse by the husband with the 
 wife was held to be desertion (Magrath v. Magrath, 103 Mass. 577; 4 Am. R. 579), 
 but refusing to have sexual intercourse is held not to be desertion. Am. & Eng. 
 Encyc. of Law, Vol. 5, p. 800, note. The authorities generally agree that the 
 effect of abandonment by the husband is to give to the wife the right of a feme sole. 
 Arthur v. Broadnax, 3 Ala. 557; 37 Am. Dec. 707; note, p. 709 to 714. See also 
 Mead V. Hughes' Adm'r, 15 Ala. 141; 50 Am. Dec. 123; note, p. 127. 
 
 ^ Am. & Eng. Encyc. of Law, Vol. 5, p. 807. 
 
330 BILLS m CHANCERY. § 103 
 
 Virginia statute, it can hardly be held that the insertion of the 
 word "inhuman" will make the definition of cruelty different 
 from what it would otherwise be. The Virginia cases' have held 
 that the cruelty that authorizes a divorce is anything that tends to 
 bodily harm, and thus renders cohabitation unsafe, or that involves 
 danger to life, limb or health.^ While there may be cases in which 
 
 'Latham, by &c. v. Latham, &c., 30 Gl-at. 307; Myers, by &c. v. Myers, 83 
 Va. 810; Heninger v. Heninger, 90 Va. 271. 
 
 " The cases in the Virginias afTording a definition of cruelty in this respect are 
 fortunately few, and it is to the credit of their people that we have to look mainly 
 to the decided cases of other States and countries for a definition. This definition 
 is given on p. 790 of Vol. 5, Am. & Eng. Encyc. of Law: " Cruelty as a cause for 
 divorce is the wilful and persistent causing of unnecessary suffering, whether in 
 realization or apprehension, whether of body or of mind, in such a way as to ren- 
 der cohabitation dangerous or unendurable." Lord StoweU's exposition of crUelty, 
 very often quoted, as given in Evans v. Evans, 2 Hagf. 35 ; "4 Eng. Ecc. 310, is 
 declared to be probably the most celebrated (p. 790, Vol. 5, Am. & Eng. Encyc. 
 of Law). In Myers, by &c. v. Myers, 83 Va. 811, Judge Bichardson quotes Mr. 
 Bishop as speaking of this opinion as one of the "master productions of Lord. 
 StoweU's luminous mind," and he also quotes the definition given, from the 
 opinion. 
 
 Cruelty may be extreme and may exist without blows (Harratt v. Harratt, 7 
 N. H. 196; 26 Am. Dec. 730). Cruel treatment by a husband when drunk is 
 good ground for a divorce, although he may be kind and repentant when sober 
 (Lockridge v. Lockridge, 3 Dana, 28; 28 Am. Dec. 52). It is any wilful miscon- 
 duct which endangers the life or health of the wife, which exposes her to bodily 
 hazard and intolerable hardship, and renders cohabitation unsafe (Poor v. Poor, 8 
 N. H. 307; 29 Am. Dec. 664; note, p. 674 to 679). Again that is said to be 
 cruelty sufficient to justify a divorce which " threatens the wife's personal safety, 
 exposes her to danger in person or health, or renders her mairied life wretched or 
 oppressive" (Finley d. Finley, 9 Dana, 52; 33 Am. Dec. 528); but the words in 
 italics are too broad to be properly regarded as a true definition. When the hus- 
 band used language not usual to be addressed to his slaves, threatened to drive his 
 wife from his house, slapped her, choked her, bad an ungovernable temper and 
 prayed God in her presence to deliver him from her, it was naturally held to be a 
 case of cruelty (Payne v. Payne, 4 Humphreys, 500; 40 Am. Dec. 660). Choking 
 his wife, coarsely accusing her of unchastity, locking her up and threatening to 
 smash her head with a brick, was declared to be inhuman treatment ( Wheeler v. 
 Wheeler, 53 Iowa, 511; 36 Am. E. 240), and the actual commission of a single 
 act of cruel and inhuman treatment, accompanied by circumstances indicating a 
 probability of a repetition of similar conduct, wiU warrant a divorce (Beyer v. 
 Beyer, 50 Wis. 254; 36 Am. E. 848. See also Palmer v. Palmer, 45 Mich. 150; 
 40 Am. R. 461; note, p. 463. Contra, Hoshale v. Hoshale, 51 Md. 72; 34 Am. E. 
 298). A false charge of adultery made by the wife against the husband was held 
 
§ 103 BILLS FOE DIVORCE. 331 
 
 the husband, without violence, actual or threatened, may render 
 the marriage state impossible to be endured ; while there may be 
 angry words, coarse and abusive language, humiliating insults, and 
 annoyances in all the forms that malice can suggest, which may as 
 effectually endanger life or health as personal violence, and which 
 would afford ground for relief by the court ; yet it is obvious that 
 what merely wounds the feelings, without being accompanied by 
 bodily injury or actual menace, mere austerity of temper, petu- 
 lance of manner, rudeness of language, want of civil attention and 
 accommodation, or even occasional sallies of passion that do not 
 threaten harm, although they be high offences against morality, in 
 the married state do not amount to legal cruelty. 
 
 It is not necessary, however, that there should be many acts of 
 cruelty, if there is reason to apprehend that they will be repeated. 
 It suffices that the past, upon the whole, affords a reasonable ap- 
 prehension of bodily harm.^ 
 
 Condonation applies to cruelty as well a to adultery ; but it is 
 in no case held so strictly against a wife as against a husband ; and 
 although the complaint usually comes from the wife, yet the hus- 
 band is in like manner entitled to protection if he shall really need 
 
 to be cruelty justifying a divorce (Carpenter v. Carpenter, 30 Kas. 712; 46 Am. 
 E. 108; Bahn v. Bahn, 62 Tex. 518; 50 Am. E. 539; note, p. 542. See also Kelly 
 V. Kelly, 18 Nev. 49; 51 Am. E. 732; note, p. 736). ExpeUing a wife and a 
 young dependent step-daughter, and making their separation a condition of taking 
 back the wife, was held to be extreme cruelty (Friend v. Friend, 3 Mich. 543; 51 
 Am. E. 161). A charge of theft, accompanied with threats of bodily injury, held 
 sufficient to justify a divorce (Nogees v. Nogees, 7 Tex. 538; 58 Am. Dec. 78; 
 note, p. 83. ) Subjecting the wife to excessive sexual intercourse was held to be 
 ground for divorce (Melvin v. Melvin, 58 N. H. 569; 42 Am. E. 605). Eefusal 
 to have sexual intercourse was held not to be cruelty (Am. & Eng. Encyc. of Law, 
 Vol. 5, p. 800, note). 
 
 If a divorce has been obtained by fraud a bill will lie to set it aside (Bradford v. 
 Abend, 89 111. 78; 31 Am. E. 67. See also Greene v. Greene, 2 Gray, 361; 61 
 Am. Dec. 454; note, p. 459 to 468). The effect of a decree annulling a decree for 
 divorce is to put the parties in the State in which they were before the divorce, 
 without regard to a subsequent marriage and the birth of children (Comstock v. 
 Adams, 23 Kas. 513; 33 Am. E. 191). 
 
 ' Minor's Institutes, Vol. 1, p. 256-57, and authorities cited. 
 
332 BILLS IN CHANCERY. § 103 
 
 it. Condonation is always conditional, so that if the offence be 
 repeated the effect of the condonation is done away with, and, of 
 course, it cannot be applicable to the subsequent offence.* 
 
 The divorce from bed and board separates the parties forever, 
 or for a limited period ; and a decree therefor may be revoked at 
 any time thereafter by the same court by which it was pronounced, 
 imder such regulations and restrictions as the court may impose 
 upon the joint application of the parties, and upon their producing 
 satisfactory evidence of their reconciliation ; and when a divorce 
 from bed and board has been decreed for abandonment or deser- 
 tion, and five years shall have elapsed from the abandonment or 
 desertion without such reconciliation, the court may, upon the ap- 
 plication of the injured party and the production of satisfactory 
 evidence, whether taken theretofore or in support of such applica- 
 tion, decree a divorce from the bond of matrimony ; provided the 
 court shall be of opinion that such a decree would have been proper 
 when the decree from bed and board was pronounced had five years 
 then elapsed, and the whole evidence adduced upon said applica- 
 tion then before the court, and that no reconciliation is probable.^ 
 
 A divorce a vinculo matrimonii may be decreed for adultery ; * 
 
 * Minor's Institutes, Vol. 1, p. 256-57, and authorities there cited. Condonation 
 is the forgiveness by the complainant of the act complained of, on conditions per- 
 formed by the defendant. It thus involves an act on the part of both parties, and it 
 may be either expressed in direct terms or implied, as from sexual intercourse after 
 knowledge of the act, or even from long acquiescence without intercourse. Am. 
 & Eng. Encyc. of Law, Vol. 5, pp. 821, 822. As to the effect of cohabitation after 
 confession, but without means of proof sufficient to justify a divorce, see Hofmire 
 V. Hofmire, 7 Paige, Ch. 60; 32 Am. Dec. 610. The husband's condonation of 
 the wife's adultery does not debar her from divorce from him on account of his 
 subsequent adultery. Gumming v. Gumming, 135 Mass. 386; 46 Am. E. 476. 
 When a wife leaves her husband on account of his cruelty and returns on his prom- 
 ise of amendment, his subsequent cruelty revives the offence. Gordon v. Gordon, 
 88 N. C. 45; 43 Am. E. 729. Condonation or recrimination, to be taken advantage 
 of in a suit for divorce, should be urged by way of special plea or insisted on in 
 the answer as a defence. Smith v. Smith, 4 Paige, Gh. 432; 27 Am. Dec. 75. 
 
 ' I 2266; Code W. Va., Gh. 64, I 13. The time named in the West Virginia 
 statute which shall have elapsed from the abandonment or desertion is three years. 
 
 'Adultery by an insane wife is not cause for divorce. Matchin jj. Matchin, 6 
 Pa. 332; 47 Am. Deo. 466, note p. 469. For a proper definition, proof, defences. 
 
§ 103 BILLS FOK DIVOECE. 333 
 
 for natural or incurable impotency of body existing it the time of 
 entering into the matrimonial contract ; where either of the parties 
 is sentenced to confinement in the penitentiary (and no pardon 
 granted to the party so sentenced shall restore such party to his or 
 her conjugal rights) ; where, prior to the marriage, either party, 
 without the knowledge of the other, had been convicted of an in- 
 famous offence ; where either party, charged with an offence pun- 
 ishable with death or confinement in the penitentiary, has been in- 
 dicted, is a fugitive from justice, and has been absent for ten years ; 
 where either party wilfully deserts or abandons the other for three 
 years, a divorce may be decreed to the party abandoned ; where, 
 at the time of the marriage, the wife, without the knowledge of 
 the husband, was enciente by some person other than the husband ; 
 or prior to such marriage has been, without the knowledge of the 
 husband, notoriously a prostitute, such divorce may be decreed to 
 the husband ; but no such divorce shall be decreed, if it appears 
 that the party applying for the same has cohabited with the other 
 after knowledge of such conviction of an infamous ofFence, or has 
 cohabited with the wife after knowledge of the fact that she was 
 encierde, or had been a prostitute as aforesaid.' 
 
 &C., see the cases collected in Vol. 5, Am. & Eng. Encyc. of Law, p. 781, et seq., 
 and Musick v. Musick, 88 Va. 12. It has been held that the bill must state the 
 time and place of the commission of the act of adultery (Adams v. Adams, 20 N. 
 H. 299; 51 Am. Dec. 219), and so it is held in Virginia (Miller v. Miller, 92 Va. 
 196), but the more general opinion seems to be that neither the time nor place is 
 material, provided the adultery took place before the filing of the bill or supple- 
 mental bill and after the passage of the act making it a ground for divorce. Am. 
 & Eng. Encyc. of Law, Vol. 5, p. 778 and p. 782. Fresh acts of adultery may 
 be set up by supplemental bill. Adams v. Adams, 20 N. H. 299; 51 Am. Dec. 
 219. The husband's adultery at any time will bar his suit for divorce. Smith v. 
 Smith, 4 Paige's Chy. 432; 27 Am. Dec. 75; note p. 80. 
 
 ' ? 2257, as amended by act of February 23, 1894, Acts 1893—94, p. 425; Code 
 W. Va., Ch. 64, ? 5. The statute of West Virginia omits the provision for the 
 case of an indicted party who is a fugitive from justice, but adds that when, prior 
 to the marriage, the husband, without the knowledge of the wife, had been notori- 
 ously a licentious person, such divorce may be decreed to the wife, unless she has 
 cohabited with the husband after knowledge of this fact. Under statutes for avoid- 
 ing a marriage procured by fraud it has been held that it could not be avoided by 
 reason of the concealment by the woman, before the marriage, of her unchastity, 
 
334 BILLS IN CHANCEEY. § 103 
 
 Where the suit is for a divorce for adultery, the divorce shall 
 not be granted if it appear that the parties voluntarily cohabited 
 after the knowledge of the fact of adultery, or that it occurred 
 more than five years before the institution of the suit, or that it 
 was committed by the procurement or connivance of the plaintiff.^ 
 
 Where the ground for the divorce is want of reason, natural or 
 incurable impotency of the body at the time of marriage, relation- 
 ship within the prohibited degrees, conviction of either party of 
 an infamous offence prior to the marriage without the knowledge of 
 the other, the pregnancy of the wife at the time of the marriage with- 
 out the knowledge of the husband by some other person than him, 
 in order to invalidate the marriage, the decree of divorce a vincudo 
 matnmonii must be pronounced during the lifetime of both parties.^ 
 
 Another ground of divorce a vinculo matrimonii is force or fraud ; 
 but the fraud is not that relating to fortune, station in society, pre- 
 vious condition, health, etc., but only such as relates to the identity 
 of the person.^ 
 
 In granting a divorce for adultery, the court may decree that 
 the guilty party shall not marry again, in which case the bond of 
 matrimony shall be deemed not to be dissolved as to any future 
 marriage of such party, or in any prosecution on account thereof. 
 But for good cause shown, so much of any decree rendered as pro- 
 hibits the guilty party from marrying again, may be revoked and 
 annulled at any time after such decree by the same court that ren- 
 dered it.* 
 
 nor of her fraudulent representations that she was chaste. Vamey v. Vamey, 52 
 Wis. 120; 38 Am. E. 726; Long v. Long, 77 N. C. 304; 24 Am. R 449; note, p. 453. 
 
 1 ? 2262; Code W. Va., Ch. 64, ? 10. 
 
 ' Minor's Institutes, Vol. 1, p. 256-57, and cases cited. 
 
 ' Id. p. 263. The fraud must be such as operates on one or the other of the im- 
 mediate parties to the contract. McKinney v. Clarke, 2 Swan. 321; 58 Am. Dec. 
 59. See also Ante, p. 333, and note. 
 
 * i 2265. This provision is not in the statute of West Virginia. The Virginia 
 statute has been held to be constitutional. Musiok v. Musick, 88 Va. 12. For 
 authority to change a decree of divorce from bed and board into one a vinculo, see 
 § 13, Ch. 64, Code W. Va., as amended by act of February 6, 1895, p. 7 of Acts 
 1895. 
 
§ 103 BILLS FOE DIVORCE. 335 
 
 The court in term, or the judge in vacation, may, at any time 
 pending the suit, make any order that may be proper to compel 
 the man to pay any sums necessary for the maintenance of the 
 woman, and to enable her to carry on the suit, or to prevent him 
 from imposing any restraint on her personal liberty, or to provide 
 for the custody and maintenance of the minor children of the 
 parties during the pendency of the suit, or to preserve the estate 
 of the man, so that it may be forthcoming to meet any decree 
 which may be made in the suit, or to compel him to give security 
 to abide such decree/ 
 
 Alimony, generally regarded as an incident to a suit for a di- 
 vorce, may in Virginia be granted independently of any such suit, 
 where the misconduct of the husband drives the wife from her 
 home, or he turns her out of doors, or perhaps wherever a divorce 
 from bed and board or a restoration of conjugal rights would be 
 decreed.^ But no alimony will be decreed to a wife who without 
 adequate reason deserts her husband and refuses to live with him ; ^ 
 nor is it regarded, as an adequate excuse for such desertion, so as 
 to entitle her to alimony, that a husband is rude and dictatorial in 
 his speech, exacting in his demands upon her, penurious and close, 
 
 1 1 2261; Code "W. Va., Ch. 64, ? 9. The statute of West Virginia also provides 
 that the court may compel the man to deliver to the woman any of her separate 
 estate which may be in his possession or control, and may prevent him from inter- 
 fering with her separate estate. Although the Virginia statute gives this authority 
 to the court or judge at "any time pending the suit," the court of appeals has 
 construed that to mean "whilst it is pending in that court," and has declared that 
 that statute ' ' affords no justification for the action of the circuit court in rendering 
 the decree appealed from whilst an appeal was pending from a former decree allow- 
 ing alimony in the same cause." Cralle v. Cralle, 81 Va. 775. It has been held 
 that a husband is not liable to an attorney employed by his wife in resisting his 
 proceedings for a divorce or in prosecuting a similar petition for the wife (Irving 
 V. Hurlburt, 15 Vt. 607; 40 Am. Dec. 695), but the contrary has been held on 
 affirmative proof that the divorce suit of the wife was justifiable. McConley v. 
 Stockbridge, 62 Md. 422; 50 Am. K. 229; Conant v. Burnham, 133 Mass. 503; 43 
 Am. B. 532. See also Am. & Eng. Encyc. of Law, Vol. 1, p. 474 and note. 
 
 'Purcell V. Purcell, 4 U. & M. 507; Almond v. Almond, 4 Band. 662; Spencer 
 V. Ford, 1 Bob. 684; Minor's Institutes, Vol. 1, p. 282; Latham, by &c. v. Latham, 
 30 Grat. 307. 
 
 » Harris v. Harris, 31 Grat. 13. 
 
336 BILLS IN CHANCEBY. § 103 
 
 and sometimes unkind and negligent in his treatment of her, even 
 when she was sick, and worn and weary in watching and nursing 
 their sick child.' 
 
 The amount of alimony ^ to be allowed is matter of discretion 
 with the court, to be exercised according to established principles, 
 and upon a view of all the circumstances of the case. It is com- 
 mon also to distinguish between the temporary alimony granted 
 during the continuance of the suit, and the permanent alimony 
 allowed at its close, the latter being in amount always greater than 
 the former. The general rule, especially in respect to permanent 
 alimony, is that the wife is entitled to a support corresponding to 
 her husband's condition in life, and his fortune and resources, in- 
 cluding his and her earnings, or ability to earn money. Ordinarily, 
 it is said, the wife ought to be allowed, for temporary alimony, 
 about one-fifth of the joint income, as just defined, and for per- 
 manent alimony from one-half to one-third, two-fifths being no 
 uncommon proportion.' 
 
 ' Carr v. Carr, 22 Grat. 168. The amount of alimony is governed by no iixed 
 rule, but the court takes into consideration the fortune or income of the husband, 
 the question of whether the property came from the husband or the wife, the social 
 position and manner of life of the parties, the expenses to which they are sub- 
 jected in the custody and support of minor children, etc. (See the rules generally 
 laid down in Vol. 1, p. 476, Am. & Eng. Encyc. of Law; Cralle v. Cralle, 84 Va. 
 198; Heninger v. Heninger, 90 Va. 271.) Alimony is allowed pendente lite and 
 also permanently upon a decree for divorce, and the same general rules apply for 
 filing the amounts of both, but usually the amount of temporary alimony is less 
 than that which is allowed permanently. Am. & Eng. Encyc. of Law, Vol. 1, 
 p. 476 et seq. To justify temporary alimony there must at least be an allegation of 
 the marriage (North v. North, 1 Barbour's Chy. 241; 43 Am. Dec. 778), and it 
 has been held that where the answer denies the marriage, alimony will not be al- 
 lowed until the actual existence of the marital relations is proved or admitted. 
 Brinkley v. Brinkley, 50 N. Y. 184; 10 Am. E. 460. See also Methvm v. Meth- 
 vin, 15 Ga. 97; 60 Am. Dec. 664; notes, p. 665 to 682. The amount of alimony 
 to be allowed is within the sound discretion of the court, to be fixed according to 
 established principles, and upon an equitable view of all the circumstances of the 
 particular case. Miller, by &c. v. Miller, 92 Va. 196. 
 
 ^Bishop on Mar. and Div. 603 et seq; Ibid. 614 et seq; 616 et seq; Bailey v. 
 Bailey, 21 Grat. 52 et seq; Carr v. Carr, 22 Grat. 168; Minor's Institutes, Vol. 1, 
 p. 283; Wass v. Wass, 42 W. Va. 460; 26 S. E. E. 440. 
 
 " In Iowa (Graves v. Graves, 35 Iowa 310; 14 Am. E. 525), it is held that a suit 
 
§ 103 BILLS FOE DIVORCE. 337 
 
 A more liberal allowance is made in case of aggravating circum- 
 stances in the conduct of the husband, and where no imputation 
 exists against the wife. So the amount is always influenced, more 
 or less, by the fact that the husband has a family of children to 
 support, or that he himself is in feeble health. In many cases, 
 the third part of the annual income of the husband has been 
 assigned as permanent alimony ; in others, a moiety. If the 
 parties are laboring people, the wife does not usually require as 
 much as though she was brought up unused to labor, and this is 
 taken into account by the courts. If the husband's property, or 
 much of it, came by the wife, where the income is derived from 
 investments, where the wife supports the children, or if the hus- 
 band is in good health and skilful, and is actually realizing con- 
 siderable profits, the allowance of alimony is enlarged,^ for it has 
 been said that " the partner of his fortunes should not be refused 
 a reasonable participation in them." ^ 
 
 The amount cannot be fixed by agreement between the parties, 
 where the suit is by the wife, before there is a decree for divorce, 
 although it may be after such a decree.^ But although it is gen- 
 erally understood that at least one-third of the husband's income 
 is the usual rate at which permanent alimony will be allotted, it is 
 liable to variation according to the husband's ability to pay, and 
 the conduct of the parties. The law has laid down no exact pro- 
 may be maintained for alimony, thougli no divorce or other relief is sought. In 
 Virginia the courts of chancery took jurisdiction of cases of alimony before they 
 had power to grant divorces (Purcell v. Purcell, 4 H. & M. 507; Almond v. Al. 
 mond, 4 Band. 667), and in South Carolina the courts exercised the same jurisdic- 
 tion without the power to grant divorces (Jelineau -o, Jelineau, 2 Desau. 45; 
 Devall V. Devall, &c., 4 Desau. 79; Prather v. Prather, 4 Desau. 33; Threewits v. 
 Threewits, Ibid. 560; Taylor v. Taylor, Ibid. 167). See also Ehame v. Ehame, 1 
 McCord' s Chy. E. 205. The English authorities are opposed to this view, and it 
 does not universally prevail in America. Story's Eq. Jurisprudence, § 1423, a. 
 
 1 Minor's Institutes, Vol. 1, p. 273. 
 
 2 Tyler on Infancy and Coverture, 917; Burr v. Burr, 7 Hill's E. 207, 211; 
 Prince V. Prince, 1 Eich's Eq. E. 282; Kiihj v. Kirby, 1 Paige's Chy. E. 261; 
 Stone V. Stone, 8 Curt. Ec. E. 341. 
 
 ' Tyler on Infancy and Coverture, p. 919. But see Daggett v. Daggett, 5 Paige, 
 509; 28 Am. Dec. 442. 
 
 22 
 
338 BILLS IN CHANCEEY. § 103 
 
 portion ; it sometimes gives a third, and sometimes a moiety, ac- 
 cording to circumstances.^ 
 
 The time during which the payment of alimony is to continue 
 is not always fixed as the period of the wife's natural life ; for the 
 husband may die first, and it is not regarded as his duty to pro- 
 vide a maintenance for his wife beyond the time of his own life.^ 
 
 The assignment is usually of a specified sum of money to be 
 paid annually,^ and payment of which is secured as the court may 
 decide ; or sometimes there is an assignment to her separate use 
 of such part of the real and personal estate of the husband as the 
 court shall think fit.* A divorce a vinculo matnmonii deprives a 
 widow of her right to dower, but when it is only a mensa el toro 
 it has not that effect.^ 
 
 Upon decreeing the dissolution of a marriage, and also upon 
 decreeing a divorce, whether a vincula matrimonii or a mensa et 
 toro, the court may make such further decree as it shall deenf ex- 
 pedient concerning the estate and maintenance of the parties, or 
 of either of them, and the care, custody, and maintenance of their 
 minor children, and may determine with which of the parents the 
 
 1 Otway V. Otway, 2 PhUlim. R. 109. 
 
 'Ibid., Lockridge v. Lock ridge, 3 Dana's K. 28; Logan v. Logan, 2 B. Mon. 
 E. 142; Francis, by &c. v. Francis, 31 Grat. 283. It ceases with the death of 
 either party. 2 Bishop on Marriage and Divorce, § 350. In Gaines o. Gaines' 
 Ex'ors, 9 B. Monroe, 295, 48 Am. Dec. 425, alimony was held to cease on the 
 death of the husband, but where it was decreed in terms for the natural life of the 
 wife it was held to subsist even after the defendant's death. Stratton v. Stratton, 
 77 Me. 373; 52 Am. R. 779. The remarriage of the wife was held to be good 
 ground for revoking the allowance of alimony, it not appearing that the new hus- 
 band was not able to support her. Stillman v. StUlman, 99 111. 196; 39 Am. R. 21. 
 
 'Maguire v. Maguire, 7 Dana's R. 181; Wallmgsford v. Wallingsford, 6 Har. 
 & Johjis. R. 485; Purcell v. Purcell, 4 H. & M. 507; Russell v. RusseU, 4 Greene's 
 R. 26; Tyler on Infancy and Coverture, 918. 
 
 * Tyler on Infancy and Coverture, 919. 
 
 5 Tucker's Com., Book 2, p. 60. The right to dower was held not defeated by 
 the desertion of the wife without adultery. Wiseman v. Wiseman, 73 Ind. 112; 38 
 Am. R. 115. An allowance of alimony does not bar the right to dower. Taylor 
 V. Taylor, 93 N. C. 418; 53 Am. R. 460. But^in a, State where divorce allows 
 both parties to remarry, a decree in favor of the wife with a provision for perma- 
 nent alimony is held to bar dower. Tatro v. Tatro, 18 Neb. 395; 53 Am. R. 820. 
 
§ 103 BILLS FOE DIVORCE. 339 
 
 children, or any of them, shall remain ; and the court may, from 
 time to time afterwards, on petition of either of the parents, revise 
 and alter such decree concerning the care, custody, and maintenance 
 of the children, and make a new decree concerning the same as 
 the circumstances of the parents and the benefit of the children 
 may require.^ 
 
 Such is the provision of the statute in regard to the custody of 
 the children, and it has been held that under this statute the court 
 in which the divorce suit is pending is authorized to make an order 
 touching the custody of the minor children only where there is a 
 decree for a divorce ; but it is nevertheless competent for a court 
 of chancery, in pursuance of its general jurisdiction, for good and 
 sufficient reasons, to make any proper order touching the custody 
 and tuition of an infant in a pending suit for divorce, even when 
 the divorce is denied.^ 
 
 In the case of Latham, by &c. v. Latham, Judge Staples ably 
 discusses the general rules governing the exercise by the court of 
 its discretion in making orders touching the custody of infant 
 children, and from the opinion of the court in that case we gather 
 the following general views : 
 
 The father is the legal and natural guardian of the infant, and 
 the proper guardian of any minor child against all the world j and 
 the only exception to this prima fade rule is where the child is of 
 such tender age as to need the nursing care of the mother. He is 
 universally considered as having claims paramount to those of the 
 mother, his legal authority only yielding to the claims of the infant 
 wherever the morals or interests of the latter strongly require it. 
 Wherever the father so conducts himself that it will not be for the 
 benefit of the children to live. with him; if his domestic habits, 
 associations or opinions are such as tend to the injury of his chil- 
 dren, the' court will withdraw them from him and confer the 
 custody of them upon the mother, or take the children from both, 
 
 1 II 2261, 2263; Code W. Va., Ch. 64, ?? 9, 11. 
 '' Latham, by &c. v. Latham, 30 Grat. 307. 
 
340 BILLS IN CHANCERY. § 103 
 
 and commit them to some third person to nurture and educate.^ 
 
 When the child is a daughter of very tender years, and the mother 
 
 is deemed a suitable person, the custody is given to her, as essen- 
 
 ' Latham, by &c. v. Latham, 30 Grat. 307, and the authorities there cited, )'. e., 
 2 Kent, 194; Tyler on Infancy and Coverture, 273 to 287; Wellesly v. Duke of 
 Beaufort, 2 Bus. 43; Ex parte Bartlett, 2 Coly. 661; In re Curtis, 28 L. J., Ch. 
 458; Symington v. Symington, 12 Eng. R. 109; 2 Bishop on Marriage and Divorce, 
 532; People v. Humphrey, 24 Bar. 526; People v. Brooks, 35 Bar. 85; Gishwiler 
 V. Dody, 4 Ohio; Mercein v. The People, 3 HOI, 363; 25 Wendall, 64; Leading 
 Cases in Equity, Vol. 2, Pt. 2, pp. 1507-1514; Comm'lth v. Briggs, 16 Pick. 203; 
 Johnson v. Terry, 24 Con. 259. See also Armstrong v. Stone & Wife, 9 Grat. 102. 
 The father's rights wiU be enforced in spite of his agreement to the contrary 
 (Johnson v. Terry, 34 Conn. 259); hut where the father has waiVed his rights, and 
 the arrangement Is conducive to the welfare of the child, it will be enforced. 
 (Van Artsdalen v. Van Artsdalen, 2 Harris, 384; The People v. Mercein, 25 
 Wend. 64. In the matter of Murphy, 12 Howard, P. 513; Foster v. Mott, 3 
 Bradford, 409; Curtis u. Curtis, 5 Gray, 535; The State v. Smith, 6 Greenleaf, 
 462). The father's rights do not depend on the wishes of the child (The State v. 
 Richardson, 40 N. H. 272; Johnson v. Terry, 34 Conn. 259; The State v. Banks, 
 25 Ind. 495 ; Henson v. Watts, 40, Ibid. ) ; but nevertheless, regard is paid to the 
 child's wishes, and this to a greater extent as it advances in age. (The King v. 
 Greenhill, 6 N. & M. 244; The Comm. v. Hammond, 10 Pick. 274; The People v. 
 Chegary, 18 Wend. 637. In the matter of Woolstonecraft, 4 Johnson's Chy. B. 
 18). Defects in the mother which unfit her for custody of the child (GishwUer v. 
 Dode, 24 Ohio, N. S. 615; Garner v. Gordon, 41 Ind. 921; Smith v. Smith, 1 
 Brewster), as adultery or other immorality (The Comm. v. Adicks, 5 Buiney, 520; 
 2 S. & E. 173), will prevent the court from placing it in her custody. The insan- 
 ity, prolonged absence, intemperance, adultery, or other gross immorality, or 
 extreme poverty of the father, will justify the court in depriving him of his 
 natural right to the child. (Dumain n. Gwynne, 10 Allen, 274; The King «. 
 Manneville, 5 East, 221; The King v. Greenhill, 4 Ad. & El. 624; Comm'lth w. 
 Briggs, 16 Pick. 203; Pool v. Gott, 14 L. R. 269; State v. Smith, 6 Greenl. 462; 
 Mercein v. The People, 25 Wend. 102; Abbott v. Converse, 4 AUen, 530; Ex 
 parte Waldron, 13 Johnson, 418; The U. S. v. Green, 3 Mansou, 482; The People 
 V. Mercein, 3 HUl, 363; Johnson v. Terry, 34 Conn. 259; In re Murphy, 12 How. 
 513; In re Goodenough, 19 Wis. 274). For these cases, see Leading Cases in Eq., 
 Vol. 2, Pt. 2, 1506 to 1517. See Taylol- v. C. & O. E. R. Co., W. V. 24 S. E. 
 R. 631. A verbal agreement of the father committing his child to the care and 
 custody of another until it should attain the age of twenty-one was declared void. 
 (State r>. Baldwin, 1 Halstead's Chy. 454; 45 Am. Dec. 399), but where the father 
 had intrusted the child to its maternal grandparents, the court refused, to surrender 
 the child to the parent when it seemed against the interest of the child to do so 
 (Jones V. Damall, 103 Ind. 569; 53 Am. R. 545. See also McKim i". McKim, 
 12 R. I. 462; 34 Am. R. 694; note, p. 698 to 702. Chapsky v. Wood, 26 Kas. 
 610; 40 Am. R. 321; note, 327 to 330. In matter of Scarritt, 76 Mo. 565; 43 
 Am- R. 768; note, p. 779). For the general rules in Virginia, see also 2 Bart. 
 
§ 103 BILLS FOE DIVORCE. 341 
 
 tial to the health and life of the infant; while, in conformity with 
 the English rule, the male child is given to the father, except in 
 very extreme cases. In passing upon the claims of the parents, 
 the courts will inquire who is most to blame for the separation, 
 giving the preference to the innocent party, because with such a 
 party the infant is most likely to be cared for properly. 
 
 Where the wife has separated from her husband without any 
 sufficient cause she ought not to have the custody of the child, 
 unless its health and present condition imperatively require it ; its 
 welfare will presumably be promoted by delivering it to its father, 
 and those who maintain the contrary must show the fact. 
 
 Where, too, the application for the divorce is refused, if the 
 court is satisfied that the wife is the chief obstacle in the way of 
 a reconciliation, and that the husband is, under all circumstances, 
 entitled to the custody of the child, it will not impose terms upon 
 him allowing the wife access to the child at specified periods, and 
 thus limiting his control, and compelling him to have the child at 
 particular places and times to gratify the wishes and feelings of 
 the wife. 
 
 Where the wife sues for a divorce she may, if adult,' sue in her 
 own name, but if an infant must do so by her next friend ; and 
 no such suit will be maintained unless the parties, or one of them, 
 is a resident of the State at the time of bringing the suit. The 
 suit must be brought in the county or corporation in which the 
 parties last cohabited, or (at the option of the plaintiff) in the 
 county or corporation in which the defendant resides, if a resident 
 of this State ; but if not, then in the county or corporation in 
 which the plaintiff resides f and the court in term, or the judge 
 
 Law Pr., p. 1241 and notes. Merritt y. Swimley, 82 Va. 433; Cunningham v. 
 Barnes &t ah, 37 W. Va. 746; Coffee v. Black, 82 Va. 567; Stringfellow v. Sorner- 
 ville, Va., 4 Va. Law Eeg. 89; Am. & Eng. Encyc. of Law, Vol. 9, p. 240 ef seg. 
 
 1 Act March 3, 1898, Acts 1897-98, p. 744. See act of West Virginia Legisla- 
 ture, February 16, 1893, Acts 1893, p. 6, § 15. 
 
 ' I 2259; Code W. Va., Oh. 64, \ 7. The parties, or one of them, must have 
 been domiciled within the State for at least one year at the time of bringing the 
 suit. 
 
342 BILLS IN CHANCERY. § 103 
 
 in vacation, may at any time pending the suit make any proper 
 order for the payment by the man of such sums of money as may 
 be necessary to carry on the suit and maintain the woman, to pre- 
 vent any restraint upon her liberty, and to provide for the main- 
 tenance and custody of the minor children.' 
 
 Such suits are instituted and conducted as other suits in equity, 
 except that the bill shall not be taken for confessed ; and whether 
 the defendant answer or not, the cause shall be heard independently 
 of the admissions of either party in the pleadings or otherwise.^ 
 
 The purpose of these provisions of the statute was to prevent a 
 decree being obtained by collusion of the parties, and not to change 
 the rules of evidence or to provide a different mode of proving the 
 facts from that pursued in other cases.^ Hence it has been held 
 that the letters of the parties, except where they are proved to 
 have been fabricated for the purpose, are admissible as evidence in 
 behalf of either party.* 
 
 The defendant, in every case, may respond to the charges in the 
 bill in his answer, and he is entitled to the benefit of it. Cases 
 of divorce, so far from justifying a relaxation of this rule, would 
 seem to call for its special observation. For while the plaintiff, 
 for reasons of public policy, cannot obtain a decree upon the ad- 
 mission of the defendant, clearly the latter against his or her ex- 
 press denial ought not to be convicted of a violation of the mar- 
 riage vow ; nor should so important a relation be dissolved upon 
 less evidence than is required to annul an ordinary contract for 
 the sale of property.^ Costs may be awarded to either party, as 
 equity and justice may require.' 
 
 ' S 2261; Code W. Va., Ch. 64, J 9; Minor's Institutes, Vol. 1, p. 269. 
 
 » i 2261; Code W. Va., Ch. 64, § 9. 
 
 » Bailey )). Bailey, 21 Grat. 50; WUliams d. Williams, 3 Greenl. B. 135; Hol- 
 land V. Holland, 2 Mass. E. 154; Baxter v. Baxter, 1 Mass. 346. 
 
 * Bailey v. Bailey, 21 Grat. 51. The plaintiff's admissions, proved in evidence, 
 are admissible to support the allegations of the defendant's answer. Cralle v. 
 Cralle, 79 Va. 182. 
 
 ' Latham, by &c. v. Latham, 30 Grat. 307. 
 
 « i 2260; Code W. Va., Ch. 64, ^ 8. 
 
§ 104 BILLS mn lost instkxjments. 343 
 
 Bills for Lost Instruments. 
 
 § 104. A party may sue in equity to recover upon a lost bond 
 or deed when he has not an adequate remedy therefor at law ; as, 
 for instance, where a discovery is necessary, or in order to set up 
 a lost bond against a surety ; ^ but it is said that because of the 
 mere loss he may not sue in that tribunal, as ordinarily the law 
 provides a sufficient remedy.^ The better rule seems, however, to 
 be that equity has jurisdiction in every case of a lost bond or 
 note, even though there be also an adequate remedy at law.^ 
 
 The same rule applies to unsealed instruments, unless they be 
 of such a character that indemnity may be required before pay- 
 ment is made, as is true of lost negotiable notes.* 
 
 While in England the jurisdiction of courts of equity to decree 
 payment of lost negotiable notes is well fixed, in the United States 
 the decisions have varied ; but the weight of authority conforms 
 to the English rule, and discards also all distinctions in this re- 
 spect between notes lost before and after maturity,^ and this is now 
 the settled rule in»V^irginia.^ 
 
 Where there is sufficient proof that a note has actually been de- 
 stroyed, an action at law will lie as to it, and consequently equity 
 would not ordinarily take jurisdiction.^ In England, where bills, 
 notes and b&nk notes are divided and transmitted by post, and one- 
 half is lost, and the other half arrives in safety, the courts of equity 
 
 ' Keme/ s Adm' r v. Kemey' s Heirs, 6 Leigh, 478. 
 
 ' Story's Equity Jurisprudence, | 84; Hickman v. Painter et cd, 11 "W. Va. 386; 
 HaU V. Wilkinson, 35 W. Va. 167; Exchange Bank of Va. v. Morrell, 16 W.Va. 
 546; Little v. Cozard, 21 W. Va. 183; Carter' v. Jones, 5 Iredell's Equity, 196; 
 49 Am. Dec. 425. To set up a lost will, Apperson v. Dowdy, 82 Va. 776. See 
 also Am. & Eng. Encyc. of Law, Vol. 13, p. 1063. 
 
 ' Cases above cited, and Shields v. Comm., 4 Eand. 541; Thompson v. Clarke, 
 81 Va. 428. 
 
 'Story's Equity Jurisprudence, ? 85. 
 
 ' Daniel on Negotiable Instruments, VoL 2, § 1475 to ? 1479. 
 
 ^ Moses V. Trice, 21 Grat. 561. 
 
 ' Moses V. Trice, 21 Grat. 556. But see Mitchell, Sheriff, v. Chancellor et al, 14 
 W. Va. 22; Hickman v. Painter, 11 W. Va. 386. 
 
344 BILLS IN CHANCERY. § 105 
 
 take jurisdiction to decree ; but in most of the United States the 
 severed note is placed on the same footing with the destroyed.' In 
 Virginia, however, it has been held that no action at law can be 
 maintained upon the half of a bank note, the other half of which 
 has been lost, because the owner can only recover on establishing 
 his title by the judgment of a court of equity, and giving satisfac- 
 tory indemnity to secure the bank against future loss from the ap- 
 pearance and setting up the other half of such note.^ 
 
 Accompanying a bill of this character must be an affidavit of 
 the loss of the instrument,' and an offer of indemnity ; but this 
 indemnity is not required where the note is not negotiable ; where 
 though negotiable it is payable to order and unindorsed, or has 
 been specially endorsed ; where it is clearly shown to have been 
 destroyed ; where the lost instrument has been traced to the de- 
 fendant's custody ; and where at the time of the final decree an 
 action on the lost instrument would be barred by the statute of 
 limitations.^ The affidavit and the offer of indemnity need not 
 be presented with the bill, as they do not affect the jurisdiction of 
 the court ; but they may be supplied by amendment, or on motion 
 of the defendant, and the plaintiff will still be entitled to a de- 
 
 cree.° 
 
 Amended Bills. 
 
 § 105. We have already noticed " the circumstances under which 
 a party may of right amend his bill, and when and where such a 
 
 ' Daniel on Negotiable Instruments, § 1479 to § 1695. 
 
 ^Bank of Virginia v. Ward, 6 Munf. 166; Farmers Bank of Virginia v. Eey- 
 nolds, 4 Band. 186; Moses v. Trice, 21 Grat. 562. 
 
 ' Thompson v. Qark, 81 Va. 423. But see The Exchange Bank of Virginia v. 
 Morrell, 16 W. Va. 546. The oath to the bill setting out the loss of the instru- 
 ment has been held to be sufficient. Hickman v. Painter et al, 11 W. Va. 386. 
 
 * Daniel on Negotiable Instruments, Vol. 2, § 1481; Story's Equity Jurispru- 
 dence, § 86 a. 
 
 ' Ibid. ; Thornton v. Stewart, 7 Leigh, 128. For what was regarded as a. suffi- 
 cient affidavit, see Hunter et al v. Eobinson, Adm'r, 5 W. Va. 272. For proper 
 parties to a suit on a lost bond, see Hawber i/. Seibert and Wife, 4 W. Va. 586; 
 Hickman v. Painter et al, 11 W. Va. 386. See also Daniel's Chy. Pr., Vol. 1, p. 
 392 to 396, and notes. " Ante, Ch. 4, § 87. 
 
§ 105 AMENDED BILLS. 345 
 
 bill may be filed. It is purposed now to consider such a bill when 
 to file it is not a matter of right. ^ 
 
 Bills may be amended when they have omitted material facts or 
 necessary parties/ by adding the same in an additional bill/ or by 
 striking out matter not relevant, or the names of parties not neces- 
 sary to the suit. Co-plaintifis as well as defendants may be 
 stricken out or added to the bill,* except that a bill of discovery 
 cannot be amended by adding co-plaintiffs ; ' but the general rule 
 is, that amendments can only be granted where the bill is defec- 
 tive in parties, or in the prayer for relief, or in the omission or 
 mistake of a fact or circumstances connected with the substance 
 of the bill, but not forming the substance itself, nor repugnant 
 thereto ; ^ and where the amendment will not make the bill multi- 
 farious.' 
 
 Amendments are largely in the discretion of the court, and are 
 allowed with great liberality until the proofs are closed, except 
 that when the bill is under oath much greater caution is exercised.* 
 So where the. object of the amendment is to let in new facts or 
 
 ^ Belton V. Apperson et als, 26 Grat. 208. 
 
 'Stephenson v. Taveners, 9 Grat. 298; Welton v. Hutton et al, 9 W. Va. 339. 
 If a party amends his bill he cannot afterwards appeal because of a demurrer hav- 
 ing been sustained to the original bUl, in respect of the matter as to which it is 
 amended. Fudge v. Payne, 86 Va. 303. 
 
 'Eobinson v. Shacklett, 29 Grat. 109; Linn et als, Trustees, v. Carson's Adm'r, 
 &c., 32 Grat. 170. 
 
 *Coffinan v. Sangston et al, 21 Grat. 269; SUlinga, &c. v. Bumgardner, 9 Grat. 
 273. 
 
 5 Daniel's Chy. Pr., Vol. 1, p. 401 to 406. 
 
 "Daniel's Chy. Pr., Vol. 1, p. 401 to 406; note to 501; Shields v. Barrow, 17 
 Howard, 130; Piercy, Ex' or, &c. v. Beckett et al, 15 W. Va. 444; McComb v. 
 LobdeU, 32 Grat. 185; Christian v. Vance, 41 W. Va. 754; 24 S. E. R. 596; 
 Burlew, Trustee, v. Quarrier et al, 16 W. Va. 108. See also Hardin v. Boyd, 113 
 U. S. B. 756. The tendency of the decided cases is to relax the ancient rules and 
 to allow amendments whenever it best serves the ends of justice so to do. 
 
 ' Lewis V. Patton, Trustee, 10 W. Va. 187. By amended bill allegations may 
 be modified and others added, provided the identity of the cause of suit be pre- 
 served. Bird V. Stout, 40 W. Va. 43; 20 S. E. E. 852; Christian ■„. Vance, 41 
 W. Va. 754. 
 
 -* Parker, &c. v. Grant, &c., 1 Johns. Chy. E. 434; Eenwick v. Wilson, &c., 6 
 Johns. Chy. B. 81; Eodgers, &c. v. Eodgers, &c., 1 Paige, 424. 
 
346 BILLS IN CHANCERY. § 105 
 
 defences, there is greater reluctance on the part of the court to 
 allow the amendment when it depends upon parol proof than 
 when it depends on written instruments omitted by accident or 
 mistake. And the court will not allow amendments by inserting 
 facts known to the plaintiff at the time of filing his bill, unless 
 some excuse is given for the omission, nor when the matter of the 
 proposed amendment might, with reasonable diligence, have been 
 inserted in the original bill.* But in determining these questions 
 the courts are very liberal in admitting excuses. 
 
 The general rules thus laid down have been professedly adopted 
 in Virginia ; but, as in the English courts, they have been so 
 often departed from that it is now scarcely possible to give any 
 very accurate definition of what may be included in an amended 
 bill.^ To form some definite idea on this subject attention is called 
 to the following cases in which amended bills have been recog- 
 nized ' as proper to be filed : where the complainant sought to set 
 aside a deed on the ground of fraud, but being satisfied that it 
 could not be successfully impeached, amended his bill, and relied 
 on the deed ; * where a bill for an account against a defendant as 
 bailiff was allowed to be changed into a bill for the foreclosure of 
 a mortgage ; ^ where after hearing a motion for the dissolution of 
 an injunction, and the delivery of the court's opinion that the in- 
 junction should be dissolved and the bill dismissed, it was held 
 that the injunction might be retained, and the party permitted to 
 amend by altering the frame and the averments of the bill ; ° 
 where the bill was for the specific execution of a contract relating 
 
 >Dan. Chy. Pr., Vol. 1, p. 402, notes. 
 
 ^ Belton T. Apperson et ah, 26 Grat. 216; Campbell v. Bowles, 30 Grat. 652. 
 See also Ewing's Adm'r v. Ferguson's Adm'r, 33 Grat. 548. 
 ' Mainly relied on in the case of Belton v. Apperson et ok, 26 Grat. 216. 
 
 * Mayer v. Dry, 2 Sim. & Stu. E. 113. 
 
 * Smith V. Smith, Cooper's Chy. Gas. 141. 
 
 « PhUhower v. Todd, 3 Stock. K. 54, 312. See also Buckley v. Corse, Saxton's 
 B. 504; Henry v. Brown, 4 Halst. Chy. R. 245; Harris v. Kickerbacker, 5 "Wend. 
 K. 638; S. C. 1 Paige's E. 209; Bellows v. Stone, 14 N. H. E. 175; McDougal's 
 Adm'x V. Williford, 14 Ga. E. 668; ISfeale v. Neals, 9 Wall. 1. 
 
§ 105 AMENDED BILJLS. 347 
 
 to land, but the court being of the opinion that it was not a case 
 for specific performance, remanded the cause to the circuit court, 
 with leave to the complainant to make new parties, and claim com- 
 pensation for the improvements he had made on the land ; ' where 
 the bill was for a similar purpose, and the plaintiff was allowed to 
 amend, and to ask for a rescission of the contract.^ 
 
 "If these- cases," said Staples, J., in Belton v. Apperson et al, 
 26 Grat. 217, "do not show that the plaintiff was permitted to 
 make a new case, they at least show that he may by his amendment 
 so alter the frame and structure of his bill as to obtain an entirely 
 different relief from that asked originally." ' 
 
 On the other hand, in the case of Lambert et al v. Jones et als, 
 2 P. & H. 163, a bill was filed to attach a debt due by L. to T. J. 
 & Co. (the firm being alleged to be composed of S. J. & P. H. S.), 
 and to subject the same to the payment of a debt due by that firm 
 to the complainant. From an exhibit filed in the cause with the 
 bill it was discovered that the firm of T. J. & Co. was in fact 
 composed of S. J., as survivor of himself and J. J. 
 
 An amended bill was thereupon filed, which averred that P. H. 
 S. was not a member of the firm of T. J. & Co., but that S. J., 
 as surviving partner of himself and J. J. alone, composed the 
 firm, and that the debt was due from L. to S. J. alone, in his 
 capacity of surviving partner. 
 
 Upon objection being made to permitting the amended bill to 
 be filed, the court sustained the objection, and said : "An amended 
 bill is not allowed to be filed to present a new and distinct matter 
 of controversy. * * * 'j'jjg amended bill introduced entirely 
 new matter, whc^ly separate and distinct from the matter of the 
 original bill. A debt due to the plaintiff from Samuel Jones, 
 surviving partner of Samuel & John Jones, is altogether different 
 
 ' Anthony v. Leftwioh's Eep., 3 Band. 238. 
 = Parrill v. McKinley, 9 Grat. 1. 
 
 ^See Hanby's Adm'r v. Henritze's Adm'r, 85 Va. 177; Keyser v. Eenner, 87 
 Va. 249; Pettyjohn et al v. Bursou et als, Va. ; 22 S. E. K. 508. 
 
348 BILLS m CHANCEEY. § 105 
 
 from a debt due from Samuel Jones and P. H. Sullivan ; and so is 
 a debt due from Larmour to Samuel & John Jones, from a debt 
 due from Larmour to Jones & Sullivan. And equally separate 
 and distinct from each other was the amended bill and the original 
 bUl." ' 
 
 It has sometimes been held that the plea of inadvertence and 
 want of sufficient consideration was too feeble and imperfect an 
 excuse^ to permit an amended bill to be filed. But where a party 
 filed a bill for relief against a judgment at law, in which he gave 
 no excuse for his failure to defend the action, he was allowed to 
 file an amended bill, alleging that he was prevented from making 
 his defence in consequence of certain representations and assur- 
 ances made and given by the plaintiff's attorney in the action at 
 law.^ While this excuse was held sufficient to entitle the party to 
 relief against the judgment at law, or rather to have that judg- 
 ment reviewed, it does not appear what, if any, excuse was given 
 for the failure to make this allegation in the original bill. 
 
 As has been already observed, except where the statute gives 
 the express right, both the matter which may be contained in the 
 bill and the time of filing it, are largely subject to the discretion 
 of the courts, and in both these respects the courts act liberally. 
 
 It often happens that, upon the coming in of the answer, it is 
 found proper to make new parties ; and although the right to in- 
 troduce them is also a matter within the discretion of the court,* 
 yet leave will generally be given to add such other parties, plain- 
 tiffs as well as defendants, as may be necessarj' or proper, and, 
 subject to the rules as we have discussed them, to add further 
 statements and charges ; ^ the rule also being that the amendment 
 
 1 This case has received substantial confirmation by the decision of the court of 
 appeals in the case of McComb v. Lobdell, 32 Grat. 185. 
 
 'Whitmarsh v. Campbell, &c., 2 Paige, 67; Brown v. Ricketts, 2 Johns. Chy. 
 R 427. 
 
 ^ HoUand and Wife v. Trotter, 22 Grat. 136. 
 
 '■Ante, Ch. 3, § 77. 
 
 s Sutton V. Gatewood and Wife, 6 Munf. 398; Beekman, &c. v. Waters, &c., 3 
 Johns. Chy. E. 410. 
 
§ 105 AMENDED BILLS. 349 
 
 may be made by common order before answer or demurrer, and 
 afterwards by leave of the court. ^ 
 
 Where a party has unreasonably delayed his application to file 
 an amended bill, especially if the matter sought to be brought iu 
 by it was known to him when he filed the original bill, leave to 
 file it will be denied to him ; ^ and it has been held that after the 
 cause has been set for hearing, a bill defective in its charges can- 
 not be amended by adding new charges ; ' but as this may be done 
 Sy a supplemental bill, the difference between the two is generally 
 disregarded in practice.* After the replication has been filed, the 
 motion will be to withdraw it and amend the bill,^ and then the 
 plaintiff should satisfy the court of the materialty of the amend- 
 ments, and show why the matter to be introduced was not stated 
 before.* 
 
 Where the replication had been filed several months, it was held 
 that the motion should be denied unless these things were shown,' 
 and where the plaintiffs, before filing the original bill, knew of the 
 existence of the matter sought to be introduced into the amended 
 bill, and before the motion was made a commission had issued to 
 take depositions, and one witness was examined, the motion was 
 denied.* 
 
 ' Holland and Wife v. Trotter, 22 Grat. 136; Mason v. Nelson, 11 Leigh, 227; 
 Parrill v. McKinley, 9 Grat. 1; Stephenson v. Taverners, 9 Grat. 398; Smith v. 
 Smith, 4 Kand. 95; Boykin's Devisees v. Smith, 3 Munf. 102. 
 
 ^ Whitmarsh v. Campbell, &c. , 2 Paige, 67 ; Kirby and Wife v. Thompson, &c. , 
 6 Johns. Chy. R. 79. See also Boykins v. Smith, &c., 3 Munf. 102; Smith, &c. v. 
 Smith, &c., 4 Band, 102; Pendleton v. Fay, 3 Paige, 204; Story's Eq. PL, ? 833. 
 
 » Pleasants v. Logan, 4 H. & M. 489; Shephard v. Merril, 3 Johns. Chy. K. 423. 
 
 * See Eobinson' s Ex' or v. Day, 5 Grat. 55, and Post, § 106, of this chapter. 
 ' Motteux V. Maokreth, 1 Ves., p. 142. 
 
 ^ Longman v. Calliford, 3 Anstr. 807. 
 
 ' Brown r. Eicketts, &c., 2 Johns. Chy. E. 425. 
 
 * Thorn, &c. v. Germand, 4 Johns. Chy. E. 363. In the United States courts 
 the 29th rule of equity practice provides, that " After replication filed the plaintiff 
 shall not be permitted to withdraw it and amend his bill, except upon a special 
 order of the judge of the court, upon motion or petition, after due notice to the 
 other party, and upon proof by affidavit that the same is not made for the purpose 
 of vexation or delay, or that the matter of the proposed amendment is material, 
 and could not, with reasonable diligence, have been sooner introduced into the bill, 
 
350 BILLS IN CHANCBEY. § 105 
 
 A distinction is made also as to the matter of the amendments, 
 for while, after the witnesses in a cause have been examined and 
 the proof closed, amendments touching the substance of the bill 
 are not allowed without good excuse for not having introduced 
 them before, yet if they are merely formal amendments, such as 
 the introduction of new parties, or amendments to the prayer of 
 the bill to meet the exigency of the case, they will be permitted 
 up to and at the final hearing,^ or for want of parties, after a re- 
 versal on that account by the court of appeals.^ Any amendment 
 to a bill, however trivial, authorizes a defendant, though not re- 
 quired to answer, to put in an answer, making an entii-ely new 
 defence and contradicting his former answer ; but an amendment 
 of the bill does not enable a defendant who has answered the 
 original bill to demur to an amended bill upon any cause of de- 
 murrer to which the original bill was open, unless the nature of 
 the case made by the bill has been changed by the amendment.^ 
 
 The amendments are considered as incorporated in, and forming 
 part of, the original bill. They have reference to the time of 
 filing the bill, and the defendants cannot by any amendment be 
 called upon to answer to anything which has occurred since that 
 time.' 
 
 When new parties are made by an amended bill the suit cannot 
 be considered as commenced against them until they become defen- 
 dants. The statute of limitations will avail them at the period 
 
 and upon the plaintiff submitting to such other terms as may be imposed by the 
 judge for speeding the cause." Dest/s Federal Procedure, p. 284. In conse- 
 quence of this it was held to be a gross irregularity to hear a case -without some 
 terms being imposed, on an amended bill filed after replication, without leave of 
 the court. Washington Kailroad v. Bradleys, 10 Wall. 299. 
 
 1 Daniel's Chy. Pr., Vol. 1, p. 406, notes. 
 
 ' Harding ». Handy, 11 Wheat. 103; Marshall!). Beverly, 5 Wheat. 313; Conner 
 V. Penn, 5 Wheat. 424; Owens v. Kiely's Ex' or, not reported; Ante, Ch. 3, § 77. 
 See also Welton v. Hutton el als, 9 W. Va. 339. 
 
 » Daniel's Chy. Pr., Vol. 1, p. 409. 
 
 * Hurd, &c. V. Everett, 1 Paige, 124. But see as to supplemental bills, Post, J 106. 
 
§ 106 SUPPLEMENTAL BILLS. 351 
 
 when the amended bill was filed, and they are not affected by the 
 proceedings during the time they were strangers to it.' 
 
 Supplemental Bills. - 
 
 § 106. Strictly regarded a supplemental bill is proper whenever 
 the imperfection in the original bill, which is thus sought to be 
 remedied, consists in the omission of some facts which existed 
 before the filing of the bill, but the time has passed within which 
 it can be introduced by amendment ; ^ or where it is used to bring 
 before the court some party who is necessary to the proceedings, 
 and who has been omitted to be introduced at the stage of the 
 cause at which an amendment for this purpose was proper ; ^ or to 
 introduce into the bill some matter which has happened since it 
 was filed.* 
 
 In these respects a supplemental is said to differ from an amended 
 bill ; and the time indicated as proper for a supplemental bill, but 
 when an amended bill has been regarded as too late, is after the 
 parties are at issue upon the points of the original bill, and wit- 
 nesses have been examined ; ° but under the practice in Virginia, 
 where the tendency of the courts is to disregard the mere names 
 of things, and to consider and apply their substance, when it is 
 consistent with the ends of justice, there may be said to be scarcely 
 any distinction between an amended and a supplemental bill, but 
 either will be treated as the other, when to do so will substantially 
 advance the rights of the parties ; and to this end the court of 
 appeals has even treated what was called a bill of review as a sup- 
 plemental bill.^ 
 
 > Miller v. Mclntyre, 6 Peters, 61; Waleli v. Smyth, 3 Bland. 9. But where a 
 demurrer to a bill is sustained for formal defects, the amended bUl filed by leave is 
 a continuation of the suit, the commencement of which stopped the running of the 
 statute of limitations. Morrison's Ex' or et al v. Householder's Adni'r et ali, 79 
 Va. 627. 
 
 ' Stout V. Shew, 1 Pinney, 438; 42 Am. Dec. 579; note, p. 587. 
 
 3 Story's Eq. PL, ? 333, 334. * J6id, J 332. 
 
 ^Ibid., ^332 to ^335; Sands' Suit in Equity, § 361; Daniel's Chy. Pr., Vol 3, 
 p. 150. ^ Laidley v. Merrifield, 7 Leigh, 346. 
 
352 BILLS IN CHANCERY. § 106 
 
 All that has been said of the nature, frame, and filing of an 
 amended bill applies with equal force to a supplemental bill, and 
 need not be repeated here/ 
 
 When new parties are introduced by a supplemental bill, and it 
 has no other object, the original defendants need not be made par- 
 ties thereto, nor need they be served with process,^ unless they 
 have an interest in the supplemental matter, or may be affected by 
 the interests of the new parties. But in the latter event, or if the 
 supplemental bill has another object besides the introduction of 
 new parties, the original defendants ought to be made parties 
 thereto ; for the cause must be heard upon the supplemental and 
 original bills together at one and the same time, so that in the case 
 supposed the original parties ought to have an opportunity to an- 
 swer the charges contained in the supplemental bill.' 
 
 When the bill contains matter not in its nature supplemental, 
 such, for instance, as relief already prayed for in the original bill,* 
 or in a previous "supplemental bill, it will be dismissed.^ 
 
 It is not generally necessary to give notice of an application for 
 leave to file a supplemental bill, but in a case of doubt the court 
 may direct notice.' When the supplemental bill prays an injunc- 
 tion, it is not necessary to get an order for leave to file it in addi- 
 tion to the application for the injunction. The leave may be given 
 and the injunction may be awarded at the same time ; and if the 
 order awards the injunction without stating in express terms that 
 leave is given to file the bill, such leave will necessarily be implied.' 
 
 ^ See also McMahon v. Fawcett, &c., 2 Eand. 537. 
 
 » Shaw V. Bill, 5 Otto, 10. But see KeU/s Eev. Stat., Ch. 153, | 12; Code W 
 Va., Ch. 125, § 12. 
 
 'Mitford's Eq. PI. 69, 70; Story's Eq. PI., | 334; Ensworth v. Lambert, 4 
 Johns. Chy. B. 605; McGoAvn r. Yerks, 6 Johns. Chy. B. 450; Lawrence v. 
 Bolton, 3 Paige, 294; Minor's Institutes, Vol. 4, p. 1132. 
 
 •Story's Eq. PI., J 336. 
 
 5 Minnesota Co. v. St. Paul Co., 6 Wall. 742. 
 
 ^ Eager, &c. v. Price, &c., 2 Paige, 333; Lawrence v. Bolton, &c., 3 Paige, 294. 
 
 'Eager v. Price, f&c, 2 Paige, 333. 
 
§ 107 BILLS OP REVIEW. 353 
 
 Bills of Review. 
 
 § 107. A bill of review only lies to a final decree, and is not 
 regarded as a part of the cause in which the decree sought to be 
 reviewed was rendered, but as a new suit, having for its object the 
 correction of the decree in the former suit ; ^ while a petition for 
 rehearing lies only to an interlocutory decree,^ and is treated as a 
 part of the suit in which the decree is rendered ; but the settled 
 practice nevertheless is to treat a bill of review which is filed to 
 an interlocutory decree as if it was in name a petition for rehear- 
 ing ; and a petition for rehearing which is filed to a final decree, 
 as if it was a bill of review, provided it conforms to the ordinary 
 requirements of such a bill.^ 
 
 Having already * considered the time within which bills of re- 
 view and petitions for rehearing may be filed, and who should be 
 parties ^ to such proceedings, it remains now to discuss the nature 
 and frame of such instruments. 
 
 A bill of review lies only under one or both of the circum- 
 stances of error in law appearing in the body of the decree without 
 further examination of matter in fact, or because of some new 
 matter which has arisen since the decree, and not of any new proof 
 
 ' Laidley v. Merrifield, 7 Leigh, 353, but see Goolsby, &c. v. St. John, 25 Grat. 
 163. It must be filed in the same court in which the decree sought to be reviewed 
 was rendered (Hancock v. Hutcherson, 76 Va. 609; Hanna v. Spott's Heirs, 5 B. 
 Monroe, 362; 43 Am. Dec. 132), and must exhibit the proceedings in that cause. 
 Hatcher's Per. Heps. v. Hatcher's Heirs, 77 Va. 600. See also Morgan ». Ohio 
 Biver Co., W. Va.; 19 S. E. E. 591; Battwile et ah v. Maryland Hospital, 76 Va. 
 63; Spilman v. Gilphin, 93 Va. 698. To admit of a bill of review, the decree 
 must have been final. Dingess v. Marcum, 41 W. Va. 757. 
 
 ' Hyman, Moses & Co. v. Smith et ah, 10 W. Va. 298; Carper v. Hawkins, 8 W. 
 Va. 291. As to what are final and what are interlocutory decrees, see Post, § 234. 
 
 'Ambrouse's Heirs v. Keller, 22 Grat. 769; Crickard's Ex' or v. Crickard's 
 Legatees, 25 Grat. 410; Sands v. Lynham, Escheator, 27 Grat. 291; Laidley v. 
 Merrifield, 7 Leigh, 346; Kendrick et cds v. Whitney et ok, 28 Grat. 654; Heer- 
 mans v. Montague, Va.; 20. S. E. E. 902; Diamond State Iron Co. v. Alex. K. 
 Earig Co., 93 Va. 595. 
 
 * Ante, Ch. 2, ? 33. 
 
 6 Ante, Ch. 3, ? 64. 
 
 23 
 
354 BILLS IN CHANCERY. § 107 
 
 which might have been used when the decree was made, although 
 a bill may be grounded upon proof of matter existing before the 
 decree, but which could not possibly have been used when the de- 
 cree was made. In other words, the two circumstances are, first, 
 for error apparent upon the face of the decree ; ^ and secondly, 
 upon discovery of new matter ; ^ and which, whether it is in truth 
 newly discovered or not, is a question which must be then traversed 
 and finally determined, so as not to have it open upon the bill of 
 review itself.' 
 
 A bill of review for error apparent upon the face of the decree, 
 it is generally held, may be filed without the leave * of the court ; 
 but when it is based upon after-discovered evidence, the leave of 
 the court must first be asked by petition or motion,^ and such leave 
 will not be granted unless the court is satisfied by affidavit that 
 the new matter could not be produced when the decree was made, 
 and that it is relevant and material, and such as might have oc- 
 casioned a different determination.^ A refusal to grant the leave 
 
 > Thomson v. Edwards et al, 3 W. V. 659. 
 
 ' Story's Eq. PL, ? 404; Amiss et al v. McGinnis et al, 12 W. Va. 371. 
 
 'Hodges V. Mullikin, 1 Bland. 503; Crawford's Adm'r v. Smith, 93 Va. 623. 
 
 * This statement of the law is contradicted in Sands' Suit in Equity, p. 696 and 
 note, and Hill v. Bowyer, 18 Grat. 364, is cited. The question was not involved 
 in that case, as the petition there filed was held not to be a biU of review. Judge 
 Joynes (p. 375) does say, "In the case of a biU of review, the leave of the court 
 is necessary to entitle him to file it," but there was nothing in the case to suggest 
 the distinction in this respect between a bill of review for error apparent on the 
 face and a bill of review for new matter. The rule as stated in the text is sup- 
 ported by authority (Daniel's Chy. Pr., Vol. 2, p. 1577, note 2; Minor's Inst., 
 Vol. 4, p. 1392, ed. 1883), and, as the author thinks, by the general practice of 
 the courts. A contrary view, however, is taken by the court of appeals of Vir- 
 ginia in the case of Heermans v. Montague, Va. ; 20 S. E. R. 903 ; but the statute 
 (2 3435) seems very plainly to except a bill of review for error apparent upon 
 the face of the record from the requirement that bills of review shall not be filed 
 without leave of the court first obtained. "And ui no case shall such bill be filed 
 without leave of the court first obtained, unless it be for error of law apparent 
 upon the face of the record." 
 
 sDanl. Chy. Pr., Vol. 2, p. 1578; Whitten v. Saunders, 75 Va. 563; Hatcher's 
 Per. Keps. v. Hatcher's Heira, 77 Va. 608; Simpson v. Watts, 6 Rictardson' s Eq. 
 364; 62 Am. Dec. 392. See also Am. & Eng. Encyc. of Law, Vol. 2, p. 268. 
 
 fjbul., p. 1577, note; Mitford's Chy. PI. 78 ei seq ; Carters. Allan e( ate, 21 
 
§ 107 BILLS OF EEVIEW. 355 
 
 asked is ground for an appeal ; ^ but where the proceeding was a 
 petition to open an original decree which was rendered without an 
 appearance, the petition alleging accident and surprise, it was held 
 that the refusal of the court to allow it to be filed was not a legal 
 adjudication upon 'the case presented by it, as it would be in the 
 case of a refusal to allow a bill of review to be filed ; for in the 
 latter case the leave of the court being necessary to entitle the 
 plaintiff to file it, so that the refusal to give the leave is an adjudi- 
 cation of a question properly before the court for its decision ; but 
 in the case stated the court, in refusing the leave, did not decide a 
 question properly before it ; its decision was simply nugatory, and 
 the petitioner might have filed his bill in the usual way without 
 such leave.'' 
 
 Where leave to file the bill is refused, and the case reversed on 
 that account, the lower court may, upon still refusing, be compelled 
 by mandamus to hear the cause.' 
 
 Where the bill is filed upon either of the grounds upon which 
 it may be sustained, the decree sought to be reversed by it must 
 be final in its character ; and if it be received before such final 
 decree it should be dismissed, at the cost of the party filing it,* 
 although as we have seen, such a bill may often be retained where 
 the decree is interlocutory, and be treated as a petition for re- 
 hearing. 
 
 Grat. 244. But see Quarrier v. Carter, 4 H. & M. 243, and 2 H. & M. 291, note, 
 where it is said that leave must be asked to file either kind of bill. See also HUl 
 et als V. Bowyer, 18 Grat. 376, and Nichols v. Heirs of Nichols, 8 W. Va. 174. 
 Contra, Minor's Institutes, Vol. 4, p. 1392, ed. 1883; Ante, p. 354; note 4. Not 
 allowed when the evidence is merely cumulative. Akers v. Akers et als, 83 Va. 
 633. See also Riggs v. Hoffman, 33 W. Va. 429. 
 
 •Lees V. Braxton, 5 Call. 459; Williamson n. Ledbetter, &c., 2 Munf. 521; 
 Carter v. Allan et als, 21 Grat. 244. 
 
 2 Hill et als v. Bowyer et als, 18 Grat. 376. 
 
 ' Kent, Paine & Co. v. Dickinson, Judge, 25 Grat. 817. As to when the pend- 
 ency of a bill of review will not prevent an appeal, see Gillespie v. AUen, &o. , 37 
 W. Va. 675. 
 
 * Ellzey V. Lane's Ex'x, 2 H. & M. 589; Mackey v. Bell, 2 Munf. 523; Whiting 
 V. Bank of U. S., 13 Pet. 6, 13; Putnam v. Day, 22 Wall. 60. 
 
356 BILLS IN CHANCBEY. § 107 
 
 A bill of review will not lie where the decree in question was 
 passed by consent/ unless by clerical error^ something has been in- 
 serted in the order as by consent which has not been consented to.' 
 
 The error complained of must be apparent on the face of the 
 decree and the pleadings, for the evidence in the case at large 
 cannot be examined to ascertain whether the court misstated or 
 misunderstood the facts ; nor is it at all ground of review that the 
 matters decreed are contrary to the proofs in the case, or that the 
 court decided wrong on a question of fact.^ But for the purpose 
 of examining all errors of law, the bill, answer and other pro- 
 ceedings, are in our practice as much a part of the record before 
 the court as the decree itself; for it is only by a comparison with 
 the former that the correctness of the latter can be ascertained, 
 and all these may be looked into to find errors on the face of the 
 decree." 
 
 • Thompson v. Maxwell, 5 Otto, 391. 
 
 ' The statute of Virginia provides a mode for the correction of clerical errors in 
 fact for which a decree may be reversed or corrected on writ of coram nobis, Code 
 1873, Ch. 177, I 1, ? 5. 
 
 'Daniel's Chy. Pr., Vol. 2, p. 1575. 
 
 * Daniel's Chy. Pr., Vol. 2, p. 1576, note; Putnam t;. Day, 22 Wall. 60; Kawl- 
 ings' Ex' or v. Eawlings et als, 75 Va. 76; Buffington v. Harvey, 95 U. S. K. 99; 
 aark r. Killian, 103 TJ. S. R 766; Thompson et ak v. Burke el als, 76 Va. 160; 
 Campbell v. Bowles, 30 Grat. 652; Parker v. Dillard et ah, 75 Va. 419; Shelton v. 
 Van Kleeck, 106 U. S. R. 532; Hancock v. Hutcherson and "Wife, 76 Va. 609; 
 Mason v. Harper's Ferry Bridge Co., 20 W. Va. 223; Hill v. Maury, 21 W. Va. 
 162; Pracht v. Lange, 81 Va. 711. In Middletou v. Selby, 19 W. Va. 167, upon 
 the question of whether certain persons ought properly to be parties to the suit, the 
 court said of such a ease, that "determining what is error of law apparent on the 
 face of the decree * * * it is necessary to look at the whole record, including 
 the testimony, to ascertain whether upon the whole case error of law has been 
 committed." But the general rule confines the court to what appears on the face 
 of the decrees, the opinion of the court, and orders and pi-oceedings in the cause 
 arising on facts either admitted by the pleadings or stated as facts in the decrees. 
 Shepherd's Adm'r v. Chapman's Adm'r, Va.; 21 S. E. E. 468. 
 
 ^ Daniel's Chy. Pr., Vol. 2, p. 1577. On a bill of review the court will not only 
 correct errors of law apparent in the decree complained of, but will look into all 
 the pleadings and other proceedings, and correct whatever errors of law there may 
 be in the record. Dangerfield v. Smith, 83 Va. 81; Pracht v. Lange, 81 Va. 711. 
 It will not read the depositions. Dunn's Ex' or i'. Eeniok, "W. Va. ; 22 S. E. E, 71, 
 
§ 107 BILLS OP REVIEW. 357 
 
 The bill cannot be maintained where the error is mere matter of 
 form/ as, because a case was not regularly set for hearing/ but the 
 error complained of must be contrary to some statutory enactment, 
 or some principle or rule of law or equity recognized and acknowl- 
 edged, or settled by decision, or be at variance with the forms and 
 practice of the court.' 
 
 Instances in which the bill may be maintained occur where an 
 absolute decree is made against a perso:^} who, upon the face of it, 
 appears to have been an infant at the time ; * where, except when 
 otherwise provided by statute,' no day was allowed an infant after 
 attaining full age to show cause against the decree, or when the 
 decree was rendered against an infant defendant Avithout an an- 
 swer, or without proper proceedings against him ; ° and where a 
 decree adjudged good a limitation of ^ chattel after an indefinite 
 failure of issue. 
 
 On the other hand, the following have been held to be insuf- 
 ficient grounds to sustain a bill of review : Forgetfulness or neg- 
 ligence of parties who are sui juris; ^ a mistake of counsel in 
 omitting to insist upon a point ; ' where a party was prevented 
 from taking testimony to prove important facts by the wrong 
 advice of one of his counsel ; ^ where documents which were in- 
 tended to be filed with the original bill were lost or mislaid by 
 counsel, and were' not found until after the decree ; '" where the 
 ground of the application was, that the report on which the decree 
 was founded was made without due notice, or that it did not lie 
 long enough in court before the rendition of the decree, because 
 
 'Stor/sEq. PI., HH- 
 ' Quairier v. Carter, 4 H. & M. 242. 
 'Daniel's Chy. Pr., Vol. 2, p. 1576. 
 *Story'8Eq. PI., ? 405. 
 'See as to this, Ante, Ch. 2, ? 33.. 
 
 "Mitford's Eq. PI. 78; Quarrier v. Carter, 4 H. & M. 242. 
 ' Ellzey V. Lane's Ex'x, 2 H. & M. 593. 
 
 8 Triplett v. Wilson, 6 Call. 47. See also Law v. Law, 2 Grat. 366. 
 ' Franklin v. Wilkinson, 3 Munf. 112. But see Commonwealth v. Pauly, 5 
 Call. 331. 
 '» Jones V. Pilcher, 6 Munf. 425. 
 
358 BILLS IN CHANCERY. § 107 
 
 such objections ought to have been made before the decree was 
 rendered ; ^ where it was alleged that the decree stated a fact as 
 proved of which there was no proof ;^ where the case was taken 
 up and decided in the absence of counsel, although the counsel 
 was unavoidably absent, and the fact of his absence was unknown 
 to the party until after the decree ; ' nor will a bill of review lie 
 to set aside a decree obtained by surprise or fraud, for relief against 
 such a decree should be by original bill/ 
 
 In a bill of review filed by a defendant to set aside a decree, he 
 is bound by the answer filed on his behalf by his solicitor, although 
 he did not himself read it, unless he can show a mistake or fraud 
 in filing it ; and where by his answer he admits a claim to be due, 
 and prays contribution from the other defendants without setting 
 up any defence to the dem^d, he cannot, after the decree and in 
 a bill of review, ask to have the decree set aside on the ground of 
 laches on the part of the complainant in bringing the suit.^ 
 
 Where the application for leave to file a bill of review is based 
 upon the allegation of after-discovered evidence, it is never a mat- 
 ter of right, but rests in the sound discretion of the court.* It 
 must be supported by affidavit, which must set forth and satisfac- 
 torily prove that the evidence is not only new, but such as the 
 party by the use of reasonable diligence could not have known of ; 
 for if there be any laches or negligence in this respect, that destroys 
 the right to relief •] and it has been held that the rehearing should 
 
 ' Winston v. Johnson's Ex'ors, 2 Munf. 305. 
 
 2 Webb, &c. V. PeU, &c., 3 Paige, 368; Bamett & Co. v. Smith & Co., 5 Call. 102. 
 
 'Quarrier v. Carter, 4 H. & M. 242; Wiser v. Blackley, &c., 2 Johns. Chy. R. 
 490; Franklin v. Wilkinson, 3 Munf. 112. 
 
 * Anderson v. Woodford ei aXs, 8 Leigh, 328; Erwin v. Vint, 6 Munf. 267; Calla- 
 way, Ex' or, v. Alexander, &c., 8 Leigh, 114. 
 
 6 Putnam v. Day, 22 Wall. 60. 
 
 «DingessD. Marcum, 41 W. Va. 757; 24 S. E. E. 626. 
 
 ' Eubber Co. v. Goodyear, 9 Wall. 806; Carter v. Allan, 21 Grat. 245; Camp- 
 bell V. Campbell, 22 Grat. 674; Story's Eq. PL, \ 413, 414, 415; Campbell v. 
 Bowles' Adm'r, 30 Grat, 652; Whitteu, &c. v. Saunders, 75 Va. 563; Norfolk 
 Trust Co. V. Foster, 78 Va. 731; Corey v. Moore, 86 Va. 731. In Kern, Barr & 
 Co. V. C. A. Wyatt & Co., 89 Va. 885, it was held that the complainant in a bill 
 
1 107 SILLS 01? hevieW. S59 
 
 be refused when it appears that the affidavit of the witness to the 
 newly-discovered evidence could readily have been obtained, but 
 the party asking the rehearing merely files his own affidavit.^ The 
 evidence must have been discovered since the decree, and must ap^ 
 pear to be material to the case, and such as would probably effect 
 a different result ; for immaterial or merely cumulative testimony 
 will not suffice to sustain a bill of review, and if a party should 
 be allowed to go on to a decree without looking for evidence 
 which might be obtained by a proper search, and afterwards, upon 
 finding the evidence, to file a bill of review, there would be no end 
 to such bills.^ 
 
 The new matter, however, need not necessarily be evidence upon 
 matters in issue in the original suit, although with properly framed 
 pleadings it would rarely happen that it would not be in some de- 
 gree evidence of such matters then in issue.^ 
 
 After a decree has been affirmed by the court of appeals, a bill 
 of review to it cannot be received on the ground of error in the 
 decree which is apparent on the face of the record ;* but in very 
 
 of review for newly-discovered matter must file the affidavit of the witness to the 
 newly-discovered evidence and not merely his own. See also Whitten v. Saunders, 
 75 Va. 573. 
 
 iHale et al v. Pack's Ex' or, 10 W. Va. 145; Nuohols u. Jones, 8 Grat. 267; 
 Brown v. Speyers, 20 Grat. 296. 
 
 ^ Ord V. Noel, 6 Madd. Chy. R. 86; Livingston v. Hull, &e., 3 Johns. Chy. E. 
 124; Lawsing v. Albany Ins. Co., 1 Hop. Chy. R. 102; Bamett & Co. v. Smith & 
 Co., 5 Call. 98; Bingham v. Dawson, Jacob, 243; 4 Cond. Eng. Chy. E. 114; 
 Pendleton, &c. v. Fay, &c., 3 Paige, 206; Campbell v. Campbell, 22 Grat. 674; 
 Diamond State Iron Co. v. Alex. Earig Co., 93 Va. 595; Trevelyan's Adm'rv. 
 Loffl;, 83 Va. 146; Whitten, &c. v. Saunders, &c., 75 Va. 563; Douglas v. Steph- 
 enson's Ex' or, 75 Va. 747; Conally j;. Conally, 32 Grat. 657; Carter v. Allen etals, 
 21 Grat. 241; HiU v. Maury, 21 W. Va. 162; Booth v. McJilton, 82 Va. 827; 
 Campbell v. Bowles, 30 Grat. 652; Norfolk Trust Co. v. Foster, 78 Va. 413; 
 Middleton v. Selby, 19 W. Va. 167; Pracht v. Lange, 81 Va. 711; Harman et cds 
 u. McNalton et als, 85 Va. 187; Reynolds v. Reynolds' Ex' or, 88 Va. 149. 
 
 3 Daniel's Chy. Pr., Vol. 2, p. 1557; Story's Eii. PI., ? 415, 416. 
 
 * Campbell v. Price, &c., 3 Munf. 227; McCall v. Graham, &c., 1 H. & M. 13; 
 Campbell v. CampbeU, 22 Grat. 674. 
 
360 BILLS IN CHANCEEY. § 107 
 
 rare cases, and with the greatest caution, it has been held that such- 
 a bill will lie on the ground of after-discovered evidence.' 
 
 In the supreme court of appeals, after an appeal was taken, an 
 affidavit was presented by the appellant stating that since the ap- 
 peal new and material evidence previously unknown to him had 
 been discovered, and the petitioner moved that leave be granted 
 him to give the appellees the requisite notice of a further motion 
 for a rule requiring them to show cause why the court of appeals 
 should not remit the record to the court below for a rehearing of 
 the cause. The motion was denied, the court holding that it could 
 not upon motion set aside a decree of the court below, and grant 
 a rehearing ; that no new evidence could be received there, and 
 the court below could not grant a rehearing after the term at which 
 the decree was rendered had passed. The chief justice suggested, 
 however, that if the court below should send a request to have the 
 record sent back, the court of appeals might, in a proper case, and 
 under proper restrictions, make the necessary order, but that the 
 application of the parties should be addressed to the court below, 
 and not to it.^ 
 
 We have before observed that while a bill of review relates to a 
 final decree, an application to rehear is confined to decrees of an 
 interlocutory nature ; and in a former chapter ^ we have remarked 
 that no distinct line of demarkation seems to exist between cases 
 in which the application should be made by motion, and those in 
 which it will only be heard on petition, the practice in this respect 
 being regulated by the circumstances of each case. Where, how- 
 ever, there is any doubt arising from the nature of the decree itself, 
 whether the proceeding should be by petition for rehearing or bill 
 
 'Kandolph's Ex' or v. Eandolph's Ex' or, 1 H. & M. 181; Campbells;. Camp- 
 bell, 22 Grat. 674; Conally v. Conally et als, 32 Grat. 657; Keynolds v. Eeynolds' 
 Ex' or, 88 Va. 149; Sands' Suit in Equity, p. 702; Shepherd's Adm'r v. Chap- 
 man's Adm'r, Ya.; 21 S. E. E. 468. 
 
 ' Eoemer v. Simon et al, 1 Otto, 149. 
 
 » Ante, Ch. 2, § 33. See also Hunter v. Kennedy, 20 W. Va. 343. 
 
§ 108 PETITION FOE EEHEAEING. 361 
 
 of review, there should be a petition in writing,' for a mere motion, 
 although supported by the required affidavits, will not be treated 
 as a bill of review in case the court should determine the decree 
 to have been final. Even though the case has been heard only as 
 to a particular defendant, yet if a final decree has been pronounced 
 as to him, the case will not, as to that defendant, be in the power 
 of the court after the term at which the decree was pronounced, 
 except by a bill of review. The circumstances of other proceed- 
 ings being proper against other defendants will not authorize any 
 step against the defendant as to whom the decree is final ; and if a 
 scire facias be issued against his executors, it will be considered as 
 improvidently awarded, and will be dismissed at the cost of the 
 plaintiff.^ 
 
 Petition for Rehearing. 
 
 § 108. Whether a rehearing shall be granted or not, is a matter 
 resting in sound discretion. If the chancellor is satisfied that the 
 cause has been exhausted by argument, if he has given to the case 
 the best examination in his power, and has arrived at a conclusion 
 which satisfies his judgment, and the petition for a rehearing rests 
 solely upon the merits of the cause as they stood at the previous 
 hearing, there can be no propriety nor use in granting a rehearing.* 
 But if the chancellor has pronounced a decree which has been 
 reversed by his successor in office, a third chancellor may very 
 properly review these conflicting decisions of his predecessors.^ 
 
 As in the case of a bill of review, the discovery of new and 
 important testimony not known or accessible before, and error 
 apparent on the face of the record, are good grounds for rehearing ; 
 but upon such rehearing, the cause, with respect to the party who 
 
 1 Trevelyans v. Loflft, 83 Va. 141. 
 
 ^Eoyall's Adm'r v. Johnson, &c., 1 Band. 421; Dunham v. Winans & Co., 2 
 Paige, 24. 
 
 " Field V. SchiefFelin, &c., 7 Johns. Chy. E. 256; Newberry et ah v. Stuarts, 86 
 Va. 967. 
 
 * Land v. Wickham, 1 Paige, 256. 
 
362 BILLS IN CHANCERY. § 109 
 
 petitioned to rehear, is open only as to those parts of it which are 
 complained of in the petition.' 
 
 Where a married woman, who claimed the ownership of certain 
 land sought to be subjected to the payment of her husband's debts, 
 and which had been so decreed in a suit to which she was a party, 
 but in which she had filed no answer, filed a petition for a rehear- 
 ing of that decree, stating that she had procured her counsel to 
 draw for her an answer to the bill, which answer, accompanied, 
 as she alleged, by incontrovertible documentary evidence of her 
 claim, was forwarded to her by her counsel before the decree was 
 rendered, miscarried, and did not reach her, so that the cause was 
 submitted for decision before her answer could be filed ; she was 
 allowed to have a rehearing of the decree, to file her answer, and 
 to take proof in support of it.^ 
 
 Petitions Generally. 
 
 § 109. Matters which may be determined by the regular order 
 of pleading, or upon which the issues are thereby made up, should 
 never be permitted to be set up by a petition ; but nearly any 
 matter that may be the subject of a motion, may also be obtained 
 in that way.^ 
 
 Petitions are generally for things which are matters of course, 
 or upon some collateral matter which has reference to a suit in ' 
 
 ' Consequa v. Fanning, &c., 3 Johns. Chy. E. 594; Roberts' Adm'r v. Cocke, 1 
 Band. 121; Minor's Institutes, Vol. 4, p. 1251. 
 
 ' Boyc'e & Wright v. Strothers et als, not reported, 1878. 
 
 ° Daniel's Chy. Pr., Vol. 2, p. 1604. A petition is the proper mode of affecting 
 a fund in equity, where no other parties are to be brought in to litigate the ques- 
 tion than such as are or should have been parties to the original bill, although 
 it is otherwise when additional parties are required. Hayes v. Miles, 9 GUI. & 
 Johns. 193; 31 Am. Dec. 70. If there be no allegations in the bill affecting the 
 petitioner, he is not properly a party to the suit unless the biU is amended in that 
 respect. Shinn v. Board of Education, 39 W. Va. 506; 20 S, E. E. 604. But 
 one coming into a suit for the first time by petition, and being a proper person to 
 file it, may have former erroneous orders in the cause reheard and corrected. 
 Crumlish's Adm'r v. S. V. E. E. Co., 40 W. Va. 627. 
 
§ 109 PETITIONS GENERALLY. 363 
 
 court.^ Where a bill is filed by a creditor of a decedent on behalf 
 of himself and others, the court will let in the creditors at any 
 time while the fund is in court ;^ and where creditors at large 
 filed a bill to set aside a deed as fraudulent, and succeeded, other 
 creditors were allowed to come in both before and after the decree 
 by petition, and the liens of such creditors were held to date from 
 the filing of their bill and petitions respectively ; ^ and so also 
 judgment creditors were allowed to file their petitions in a suit for 
 the sale of their debtor's land."* In all such cases, where there is 
 an order of reference, it is competent to such creditors to prove 
 their claims before a commissioner in chancery, without coming in 
 by petition. 
 
 After a decree has been made for an account, with the usual 
 directions to advertise for creditors, and after the time has expired 
 for exhibiting claims, a creditor who was not aware of the decree 
 in time to exhibit his claim before the commissioner, was upon 
 motion allowed to prove his debt, but the court imposed it as a 
 condition that he should pay the cost of the application, and the 
 expense of reapportioning the fund amongst the creditors, there 
 being a deficiency of assets.^ The ordinary condition upon which 
 such a creditor is admitted to the suit as a plaintiff, is that he shall 
 agree to contribute to its expenses.^ 
 
 It is sometimes difficult to determine whether a party shall be 
 permitted to file his petition or to seek his relief by original bill, 
 
 ^ Codwise, &c. v. Gelston, 10 Johns. E. 521 ; Davis et al v. Bonney ei als, 89 Va. 
 761. By statute (act February 8, 1898, Acts 1897-8, p. 316) petitions . may now 
 be filed at rules and matured by service of process on parties interested. 
 
 ' Lashley v. Hogg, 11 Ves. 602. 
 
 * Wallace's Adm'r ei als v. Treakle et als, 27 Grat. 479. But sefe now as to the 
 lien. Act of Legislature of Virginia, March 2, 1894, Acts 1893-4, p. 614. In 
 "West Virginia the rule of priority fixed by the case of Wallace's Adm'r v. Treakle 
 et als, still prevails. See Eichardson ei al v. Ealphsnyder et al, 40 W. Va. 36; 20 
 S. E. E. 854. 
 
 * Kendrick et all v. Whitney et ah, 28 Grat. 646. 
 
 ' Angell V. Haddon, 1 Madd. Chy. E: 529, Am. ed. 285. 
 'Anderson v. Anderson, &c., 4 H. & M. 475. 
 
364 BILLS IN CHANCERY. § 109 
 
 and the following is given as an Lastance in which a petition was 
 regarded as proper : 
 
 A suit had been brought to foreclose a mortgage ; a decree was 
 made for the sale of the premises, and the proceeds being more 
 than sufficient to satisfy the mortgagee, the surplus was paid to the 
 mortgagor, or to his assignee. Pending the suit a judgment was 
 obtained against the mortgagor, and the judgment creditor was of 
 course entitled to have his debt satisfied out of the residuary in- 
 terest in the land, after the mortgage debt and costs were paid. 
 If the judgment had been obtained before the commencement of 
 the suit to foreclose, the mortgagee would have been bound to 
 make the judgment creditor a party, or else the decree and sale 
 would not have taken away his right to redeem, even as against 
 the purchaser.^ But as the incumbrance created by the judgment 
 was pendente lite, the mortgagee was not bound to take notice of it. 
 In such a case it seems to have been considered that the judgment 
 creditor might come in and be made a party, so as to secure his 
 claim to the surplus.^ 
 
 In the circuit court of Jeiferson county. West Virginia,' a bill 
 was filed by trustees, asking the instructions of the court in the 
 execution of their trust, which was an ordinary deed of trust to 
 secure creditors. The court, retaining the trust, ordered a sale, 
 which was made at a price large enough to , satisfy the debt, and 
 leave a surplus to the debtor. Upon the report of the special 
 commissioner coming in, a judgment creditor, who had obtained 
 his judgment pendente lite, filed a petition seeking to have his 
 debt charged upon the surplus which would be decreed to be paid 
 to the debtor. The petition was opposed upon the ground that, 
 although if the bill was filed by the creditor to foreclose the trust, 
 it might be permitted to a judgment creditor to come in and seek 
 to enforce his lien upon this surplus, yet when trustees officially 
 
 1 But see Post, § 310. 
 
 ' Cook, &c. «. Mancius, &c., 5 Johns. Chy. R. 89; Kane u. Mann, 93 Va. 247. 
 
 ' Hon. John Blair Hoge, Judge. 
 
§ 109 PETITIONS GENERALLY. 365 
 
 ask instructions from the court, and file their bill for that purpose 
 alone, the proceeding is not one that will admit of creditors be- 
 coming parties. But the court held,' that if this bill had been 
 filed by the creditor to enforce the trust, a judgment creditor could 
 come in by petition and seek, to subject the surplus to his lien ; 
 and that although the trustees had filed the bill for a special pur- 
 pose, still, as the court had retained the trust, to be executed under 
 its directions and by its officers, there could be no valid reason 
 why the judgment creditor should be driven to a separate suit ; 
 and hence, his petition was sustained. 
 
 A petition must always state by whom it is presented, the in- 
 terest of the petitioner, the material facts upon which it is founded, 
 and the relief which is sought. It must be signed by counsel, and 
 is subject to all the rules that apply to bills and answers in the 
 matter of scandal and impertinence.^ 
 
 Persons under disabilities petition by next friend, and a next 
 friend may be named for all the purposes of the application.^ 
 
 A petition can only be filed by leave of the court, and an op- 
 portunity must be given to any party in interest to answer it, and 
 the mere depositing a petition in the clerk's office in vacation does 
 not effectuate the object sought and does not operate propria vigore 
 to make the petitioner a party.^ It is further laid down,^ that all 
 petitions, except those which are of course, require service upon 
 all parties interested ; but if there is no other party interested in 
 the matter, as in the case of petitions for the transfer or sale of 
 stock, or the payment out of court of money standing to the 
 separate account of the petitioner, no service is necessary ; and it 
 
 ' The style of the suit was Hunter and White v. Butcher and Wife, and the 
 decision was rendered at the spring term, 1879, of the circuit court of Jefferson 
 county, West Virginia. See also Fenwick v. Laughlin, 1 Bland. 474. 
 
 2 Daniel's Chy. Pr., Vol. 2, pp. 1604, 1605. 
 
 'Daniel's Chy. Pr., Vol. 2, p. 1604. 
 
 * Walters' Sons v. Chichester et als, 84 Va. 724; Piedment & Arlington Life Ins. 
 Co. V. Maury, 75 Va. 508; Fowler v. Lewis' Adm'r, 36 W. Va. 137. 
 
 'Daniel's Chy. Pr., Vol. 2, p. 1606. 
 
366 J BILLS IN CHANCEEY. § 109 
 
 is added, under special circumstances this rule as to service may 
 be wholly or partially dispensed with.^ 
 
 In Virginia, while leave will always be given any party to 
 answer or deny the allegation of a petition, it is not usual to re- 
 quire service of process, for matters requiring such service should 
 be presented by the regular pleadings ; and where all the parties 
 have already been served with process, or are before the court, 
 there is no good reason for further process, and the practice in this 
 respect is the same that prevails as to supplemental bills,^ but 
 process must be duly served on all parties to answer a bill of 
 review or a petition for rehearing treated as such.^ 
 
 ' Daniel's Chy. Pr., Vol. 2, p. 1606, note. See now act February 9, 1898, Acts 
 1897.-8, p. 316. 
 2 Ante, Ch. 3, § 41. 
 ' Heermans v. Montague, Va. ; 20 S. E. K. 902. 
 
CHAPTER VI. 
 
 DEMUKEEE AND PLEAS. 
 
 § 110. Frame and Nature of a De- 
 murrer. 
 § 111. The Issue upon a Demurrer. 
 § 112. Grounds of Demurrer. 
 I 113. The Effect of a Demurrer. 
 § 114. The Frame and Nature of Pleas, 
 i 115. Filing Pleas. 
 ? 116. The Issue upon Pleas. 
 
 § 117. Pleas to the Jurisdiction. 
 
 ? 118. Pleas to the Person. 
 
 I 119. Pleas in Bar. 
 
 § 120. The Plea of Limitations. 
 
 § 121. Plea of a Former Judgment or 
 
 Decree. 
 J 122. Pleas to Cross Bills and Bills of 
 
 Eeview. 
 
 Frame and Nature of a Demurrer. 
 
 § 110. Under the statute in Virginia^ a defendant may demur, 
 plead, and answer^ at the same time to the same matter, although 
 where the statute does not so provide a defendant cannot plead to 
 that part of a bill to which he has already demurred, neither can 
 he answer to any part to which he has either demurred or plead, 
 and an answer^ or plea* so filed will overrule the demurrer. 
 
 But for the statute it would also be true that the defendant 
 cannot plead and answer to the same matter, and by answering to 
 that part of a bill to which by his plea he has declined to answer, 
 he would overrule his plea, except in those cases in which the 
 complainant, anticipating the plea, sets up equitable circumstances 
 in his bill to defeat it.^ 
 
 The proper object of a demurrer is to prevent the necessity of 
 a discovery, or, what is its most common purpose, to have the 
 
 1 1 3264; Code W. Va., Ch. 125, §§ 20, 21. 
 
 ^ Cook V. Dorsey, 38 W. Va. 200. For a distinction between these modes of 
 defence, see Salmon v. Clagett, 3 Bland. 125. 
 
 'Bassett's Adm'ru Cunningham's Adm'r, 7 Leigh, 406; Clark ii. Phelps, &c., 
 6 Johns. Chy. E. 214. 
 
 * Souzer and Wife v. De Meyer, &c., 2 Paige, 576. 
 
 "Bolton, &c. V. Gardner, 8 Paige, 278; Souzer and Wife v. De Meyer, &c., 2 
 Paige, ,574. 
 
368 DEMUEEEE AND PLEAS. § 110 
 
 whole litigation settled upon the law of the case, without going to 
 the trouble and expense of an answer, plea, or proofs ; ^ and the , 
 meaning of the demurrer being that the defendant will go no 
 further until the court has decided whether the other party has 
 shown sufficient matter in point of law to maintain his suit,^ it 
 necessarily admits the truth of the allegations of the bill, or of 
 the parts thereof to which the demurrer extends, and of all docu- 
 ments filed therewith.' This rule has been carried to the extent 
 of holding that, although a bill misstated a deed by alleging it to 
 contain a proviso which it did not contain, and referred to it as 
 being in the custody of the defendant, the defendant's counsel was 
 not permitted to refer to the deed itself for the purpose of showing 
 the incorrectness of the manner in which it was set out.* The 
 rule does not, however, admit as true any matters of law which 
 are suggested in the bill or inferred from the facts stated ; ' and 
 where facts are averred in a bill which are contrary to any facts 
 of which the court takes judicial cognizance, the court will not 
 pay any attention to the averment.^ Nor does the rule admit the 
 correctness of averments as to the meaning of an instrument set 
 forth in or annexed to the bill ; ' nor the truth of matters stated 
 by way of pretence and not expressly charged ; and its admissions 
 are confined to the facts stated, so far as they are relevant and 
 well pleaded.* 
 
 'Western Ins. Co. v. Eagle F. Ins. Co., 1 Paige, 284; Verplank, &c. v. Caines 
 and Wife, 1 Johns. Chy. E. 57; Harris v. Thomas, 1 H. & M. 18; Alderson v. 
 Biggars, &c., 4 H. & M. 473; Young v. Scott, 4 Rand. 416; N. W. Bank v. Nel- 
 son, 1 Grat. 126; Young v. McQung, 9 Grat. 336; Towner v. Lucas, 13 Grat. 705; 
 Henderson v. Lightfoot, &c., 5 Call. 241. 
 
 2 Story's Eq. PI., ? 441. 
 
 'Ibid., I 446; 4 Minor's Institutes, 1146; Pryor v. Adams, 1 CaU. 391; Kester 
 V. Lynn, 40 W. Va. 166. 
 
 •Daniel's Chy. Pr., Vol. 1, p. 544. 
 
 * United States v. Ames, 9 Otto, 35. 
 
 « Daniel's Chy. Pr., Vol. 1, pp. 545, 546. 
 
 ' Dillon V. Barnard el al, 21 Wall. 430; Newberry Land Co. d. Newberry, 95 Va. 
 Ill; 27 S. E. R. 899. 
 
 « Story's Equity Pleading, I 450^52. 
 
§ 110 FRAME AND NATURE OF A DEMURRER. 369 
 
 The demurrer must be for defects apparent on the face of the 
 bill, either for the matters inserted therein or omitted therefrom, 
 or for defects in the frame or form of the bill ; ^ or in the case 
 made by it ; ^ but since the practice of liberal amendments has 
 prevailed, a demurrer is regarded as inexpedient in any case that 
 may he cured by amendment ; * although it is said that if a party 
 waits until the hearing to make an objection which might have 
 been made by demurrer, and has thereby unnecessarily entailed 
 litigation and expense which might have been prevented, he jeop- 
 ardizes his case so far as the allowance of costs is concerned.'' 
 
 A demurrer may be to the whole or to only a part of a bill, and 
 separate demurrers may be put in to different and distinct parts of 
 the same bill.' If, however, the demurrer be to the whole bill, 
 and a part thereof is good, the demurrer to the whole must be 
 overruled, notwithstanding a part of the bill is bad.^ But where 
 there are several defendants, if they all join in one demurrer to 
 a bill, the demurrer may be good, and may be allowed as to one 
 of the defendants, and be bad and be disallowed as to the other 
 defendants ; for the defence may be good as to one person, and be 
 wholly inapplicable to another.' And there may be separate de- 
 
 • Stor/s Equity Pleading, § 448. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 542; MUler v. Eichmond, F. & P. K. E. Co., 
 Va. Law Journal, 1879, p. 172. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 542. "Where the demurrer is to an amended or 
 supplemental bill, because it makes a new case from that made by the original bill, 
 it is fair to suppose that all the proof taken in the case to sustain the original bUl, 
 as well as that bill, and the exhibits filed therewith, will be regarded in considering 
 the demurrer. When the demurrer is to a bill of injunction, see Surler' s Adm' r 
 V. McQintic et als, 10 W. Va. 236. 
 
 'Daniel's Chy. Pr., Vol. 1, 542. 
 
 6 Gay, Adm'r, v. Skeen, 36 W. Va. 588. 
 
 "Story's Eq. PI., § 443, 444; Caatleman v. Veitch, 3 Eand. 598; Laight, &c. v. 
 Morgan, &c., 2 Caine's Cases in Error, 347; Leroy, &c. v. Veeder, &c., 1 Johns. 
 423; Verplank, &c. v. Caines, &c., 1 Johns. Chy. E. 57; Kimberly v. Sells, &c., 3 
 Johns. Chy. E. 467; Livingston's Ex'ors v. Livingston, &c., 4 Johns. Chy. E. 
 294; Higinbotham v. Burnet, &c., 5 Johns. Chy. E. 184; Miller v. Hare, W. Va.; 
 ' 28 S. E. E. 722. 
 
 ' Story's Eq. PI., i 445; House et als v. Mullen, 22 WaU. 42. 
 
 24 
 
370 DEMUEEEE AND PLEAS. § 111 
 
 murrers to different parts of the same bill, some of which are bad 
 and some good; and the good will be sustained, and the bill 
 amended or dismissed as the case may be, while the bad will be 
 overruled.^ 
 
 The form of the demurrer has ceased to be a matter of any 
 importance in Virginia, since the statute^ provides that it shall be 
 sufficient to say " that the declaration (or plea, etc.) is not (or is) 
 sufficient in law." This has been construed to have the effect of 
 abolishing special demurrers, and the necessity for giving a speci- 
 fication of the particular ground of exception.' It has consequently 
 been held, that merely to embody the demurrer in the answer, 
 without assigning any of the causes therefor, is sufficient.* 
 
 Except where the form of the demurrer is thus controlled by 
 the statute, it should begin with a protestation, express the several 
 causes on which it is founded, and be signed by counsel.^ 
 
 The Issue upon a Demurrer. 
 
 § 111. The statute" provides that where the plaintiff takes issue 
 on the defendant's pleading, or traverses the same, or demurs, so 
 that the defendant is not let in to allege any new matter, the 
 plaintiff may, without giving a rule to rejoin, proceed as if there 
 was a similiter or joinder in demurrer. This in terms applies to 
 a plaintiff, and as a demurrer is not in chancery applicable to either 
 
 1 Where there is a demurrer to the whole bill and also to part, and the latter 
 only is sustained, the proper decree is to dismiss so much of the hill as seeks relief 
 in reference to the matters adjudged to be bad, overrule the demurrer as to the 
 residue, and direct the defendant to answer thereto. Powder Co. v. Powder Work, 
 8 Otto, 126. 
 
 2 § 3271; Code W. Va., Ch. 125, | 28. 
 
 3 Smith's Adm'r v. Lloyd's Ex'x, 16 Grat. 310. 
 
 * Dunn V. Dunn el ats, 26 Grat. 296; Jones' Ex'ors v. dark et ah, 25 Grat. 675; 
 Matthews v. Jenkins, 80 Va. 463; Cook v. Dorsey, 38 W. Va. 200. 
 
 5 Story's Eq. PI., 457; Mitford's Eq. PI., 173, 174. 
 
 « ? 3268. The statute of West Virginia (Code, Ch. 125, ? 20) differs essentiaUy 
 from the Virginia statute, and permits to the plaintiff as many replications as he 
 may deem necessary, and confines the consistency of his pleas to the defence of. 
 mom est factum, but even as to that plea he may be inconsistent " with leave of the 
 court." 
 
§ 112 GROUNDS OF DEMUEEEE. 371 
 
 a plea or answer/ it seems to follow that this statute does not refer 
 to the issue upon a demurrer in chancery ; but the spirit of the 
 modern cases, even in proceedings at law, is to digregard mere 
 technical objections ; ^ and, therefore, while it is usual to recite in 
 a decree that there was a joinder in the demurrer, this is not re- 
 garded as necessary, and the demurrer is taken to sufficiently make 
 up the issue by itself. Where there was a demurrer to a bill, and 
 the record did not disclose what disposition was made of it, but an 
 answer was subsequently filed upon which the parties proceeded to 
 a hearing, it was presumed that the demurrer had been abandoned.* 
 
 Grounds of Demurrer. 
 
 § 112. A demurrer lies to the jurisdiction, to the relief, to the 
 discovery, to the form and to the substance of the bill, and this I 
 shall attempt to show by dividing the subject, and discussing it 
 under the following classification : 
 
 I. To the Jurisdiction. — ^Where there is an adequate and sufficient 
 remedy at law, a demurrer to a bill in equity will lie." 
 
 Objection to the jurisdiction (where it appears on the face of 
 the bill) may also be taken by demurrer whenever the objection, 
 instead of merely tending to divert the proceedings to some other 
 equitable jurisdiction, or to suspend them, or to abate the particular 
 suit, is absolutely a bar of the claim to the interposition of a court 
 of equity, and impugns the right to sue in that court altogether ; 
 but where the objection is for mere matter of abatement, as where 
 the case is a proper one for a court of equity, but not for the 
 particular court in which the suit is brought, or where the suit 
 ought to be abated by reason of some circumstance attending the 
 
 ' Travers v. Eoss, 1 McCarter (N. J. ), 254; Kaymond v. Simonson, 7 Blackf. 79; 
 Thomas v. Brathear, 4 Monroe, 65; Cooper Eq. PI. 110; Stone t;. Moore, 26 111. 
 165; Daniel's Chy. Pr., Vol. 1, p. 542, note. 
 
 2 Southside K. E. Co. v. Daniel, 20 Grat. 360. 
 
 ' Basey v. GaUaher, 20 Wall. 679. An order overruling a demurrer to a bill is 
 not appealable. Parsons v. Snider, 42 W. Va. 517; 26 S. E. E. 285. 
 
 * For a discussion of this subject, see Ante, Ch. 1, ? 17. 
 
372 DEMTJEEER AND PLEAS. § 112 
 
 plaintiff or defendant or the like, it must be taken by plea in 
 abatement, which must be filed in proper time.' 
 
 The defence of another suit pending for the same matter, unless 
 it appears on the face of the bill,^ whether regarded as a matter in 
 abatement or in bar, is not to be set up by demurrer, but by plea.' 
 
 II. For Want of Parties. — If the want of proper and necessary 
 parties is apparent on the face of the bill, the defect may be taken 
 advantage of by demurrer ; but if it be not apparent on the face 
 of the bill it may be raised by plea or answer, and an objection on 
 this account may be raised at any stage of the cause, or even in 
 the court of appeals, when it was not made below.'' 
 
 III. For Want of Interest. — This objection may be made either 
 against the plaintiff, contesting his right to sue, or in favor of all 
 or a particular defendant, against any liability for the claim set 
 up ; and it may be successfully maintained against one or more 
 joint complainants, when the other or others are entitled to re- 
 cover ; ^ and the same rule applies to one or more joint defendants. 
 
 As the plaintiff must make out his own case, he must show 
 by his bill some liability for, or interest of, the defendant in the 
 subject-matter of the suit, for which the plaintiff may demand an 
 answer from him, otherwise the bill will be liable to a demurrer ; 
 for to make a proper defence it is not incumbent on the defendant 
 to show that he has no interest in the case." Not only must the 
 plaintiff show his interest and that of the defendant in the subject, 
 but he must show also such privity between them as entitles him 
 to bring his suit ; and the bill must further pray proper relief, for 
 
 i^jife, Ch. 1, I 17; Ch. 4, §86. 
 
 2 Daniel's Chy. Pr., Vol. 1, p. 561. 
 
 ^Ante, Ch. 4, ? 86; Post, this chapter, § 117. 
 
 ^ Ante, Ch. 3, | 78. See also Cook v. Dorsey, 38 W. Va. 200; Robinson v. Dix 
 ct al, 18 W. Va. 528. 
 
 * House et al v. Mullen, 22 Wall. 42. 
 
 "Ante, Ch. 4, ? 88; Mitford's Eq. PI. 102, 141; Morrison's Ex'ors v. Grubb, 23 
 Grat. 346; Eafferty v. King, 1 Keen (15 Eng. C. L. E. ), 619; Livingston v. 
 Woodworth, 15 How. 557; Dickenson v. Davis, 2 Leigh, 407; Vaiden v. Stubble- 
 field, 28 Grat. 157-'8; Muior's Inst., Vol. 4, p. 1148; Carter v. Carter, 82 Va. 632. 
 
§ 112 GROUNDS OF DEMUEEfiE. 373 
 
 it may be that all the bill is true, and yet the plaiatiff is not en- 
 titled to the specific relief asked ; and this will be good ground of 
 demurrer, unless it be that the relief prayed may be granted under 
 the general prayer.' 
 
 The plaintiff, too, must not only have an interest, but it must 
 be of a sufficient amount to give jurisdiction ; for while^ the statute 
 fixing twenty dollars as the limit of jurisdiction applies in terms 
 only to personal actions on contracts, it is not believed that a court 
 of equity will permit a contract for ' that amount, or less, to be 
 enforced in its jurisdiction, at the expense of heavy costs, when 
 the magistrates' courts are sufficient for that purpose. 
 
 IV. For Incapacity to Sue. — A demurrer for this cause will lie 
 where it appears on the face of the bill that a party suing or sued 
 is an infant, married woman (unless she sues with her husband, for 
 her separate estate, or under the express provisions of a statute), 
 idiot, or lunatic, and no next friend or committee has been named 
 in the bill. This objection applies as well to bills for relief as to 
 bills of discovery.' 
 
 V. Because the Suit is Brought too Late.- — In a former chapter* 
 reference was made to a difference between the authorities upon 
 the question of whether or not the defence of limitations may 
 properly be set up by demurrer, or can be made available only by 
 answer or plea, the few decided cases in Virginia inclining to the 
 view that a demurrer will not lie, although the weight of authority 
 elsewhere is that it will lie. The distinction formerly held, as was 
 
 1 Daniel's Chy. Pr., Vol. 1, p. 557; Ante, Ch. 5, § 2, Div. 8. 
 
 ' ^ 3544. If the sum involved in a suit in chancery is less than $100 the attor- 
 ney's fee taxed is $5, whereas it is $15 when more than $100 is involved ( J 3552). 
 The statute of West Virginia makes $50 the minimum limit of jurisdiction of the 
 circuit court in actions at law (Ch. 112, | 2), and where the action might have 
 been brought before a justice, and the recovery is less than $50, the plaintiff can 
 not recover costs unless the object of the suit was to try a right besides the mere 
 right to recover damages (Ch. 138, §? 6, 7), but no limit seems to be fixed for 
 jurisdiction in equity. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 556; Ante, Ch. Ill, | 51. 
 
 *Ante, Ch. 2, ? 21. 
 
374 DEJfURRER ANi) PLEAS. § 11 2 
 
 then intimated, seems to have been this : that where the bill states 
 a case which is within the statute of limitations it may be met by 
 a demurrer ; but where there is no positive limitation of time, and 
 the question depends upon whether the court will interfere or not, 
 if from the facts of the case, the court will infer acquiescence, or 
 confirmation, or release, or laches, as such an interference was 
 regarded as one of fact and not of law, it could not be met by de- 
 murrer,' but should have been raised by plea or answer.^ We think 
 now that the defence may, in most cases, be made by demurrer as 
 well as by plea or answer. 
 
 VI. Because of Multifariousness? 
 
 VII. Because of the Statute of Frauds. — It is most usual to 
 make this defence by plea, but it may, nevertheless, often happen 
 
 , that by a demurrer advantage may be taken of the want of signa- 
 ture to an agreement ; * or the failure to allege such part perform- 
 ance as will take a case out of the statute.^ 
 
 VIII. For Lack of Equity. — Where one seeks to obtain an un- 
 fair advantage ; where he does not show that he has done some- 
 thing which should be done as a condition to the relief prayed ; 
 where his claim is unlawful, or against public policy f and for such 
 matters as that, because it would be inequitable to decree a specific 
 enforcement of a contract, the court leaves a party to his remedy 
 at law. 
 
 IX. Because a Discovery may Subject the Defendant to Pains and 
 Penalties. — This ground of demurrer is in accordance with the 
 general rule that no one is bound to answer so as to subject him- 
 self to punishment ; and it is not confined to cases in which the 
 discovery must necessarily have that effect,^ but it extends to 
 
 1 Daniel's Ch7. Pr., Vol. 1, p. 560. 
 
 '^ Held that the defence of lapse of time or laches may be made by demurrer 
 where the facts appear in the bill. National Bank v. Carpenter, 11 Otto, 567. 
 3 Ante, Ch. 5, 5 88. 
 
 * Daniel's Chy. Pr., Vol. 1, p. 561; Benjamin on Sales, Ch. 7, p. 188. 
 ^ Leading Cases in Equity, Vol. 1, Pt. 2, p. 1042. 
 ^ Story's Equity PI., I 505 to § 507. 
 ' Northwestern Bank v. Nelson, 1 Grat. 108. 
 
§ 112 GEOUNDS OF DEMUEEEE. 375 
 
 cases where it may do so. If, therefore, the bill alleges anything 
 which, if confessed by the answer, may subject the defendant to a 
 criminal prosecution, or to any particular actions, suits, or penalties' 
 in the courts of this country, the defendant may object to the dis- 
 covery. 
 
 The rule has been declared to embrace the answer of a married 
 woman, the disclosures of which might subject her husband to a 
 charge of felony ; and to cases in which the discovery may show 
 the defendaiit to have been guilty of moral turpitude ; as that the 
 defendant's child was born out of wedlock ; or that an unmarried 
 woman had cohabited with the plaintiff; to cases of usury, and the 
 like.^ But the rule in this respect is confined to such cases of 
 moral turpitude as will lay the party open to proceedings in courts ; 
 and in all other cases the defendant is bound to answer, although 
 his answer may expose his frauds, or may render him liable for 
 fraudulent dealings.^ If the plaintiff seeking relief is alone en- 
 titled to take advantage of the penalty or forfeiture, and he ex- 
 pressly waives any right to it, the bill is maintainable.'' 
 
 X. Because in Conscience the Defendant's Right is Equal to the 
 Plaintiff's. — The most obvious application of this rule is the case 
 of a purchaser for valuable consideration without notice of the 
 plaintiff's claim,^ who will not be compelled to make any discovery 
 which may hazard his title, unless indeed there be an allegation of 
 fraud, in which case, where the defendant's title can prevail only 
 upon the ground of his being a bona fide purchaser without notice 
 of the plaintiff's title, it is a proper object of a bill of discovery 
 to ascertain whether he had such notice, and to call upon him to 
 disclose all the circumstances which go to purge his conscience 
 upon that point. ^ 
 
 ' Poindexter v. Davis, 6 Grat. 481. 
 
 2 Story's Eq. PI., §582. 
 
 "Story's Eq. PI., \ 596; Daniel's Chy. Pr., Vol. 1, p. 563 to 569. 
 
 ^Stor/sEq. PL, §521. 
 
 5 Daniel's Chy. Pr., Vol. 1, p. 569; Story's Eq. PI., ? 603. 
 
 "Howell V. Aslimore, 1 Stock. (N. J.) 82. 
 
376 DEMUEEEE AND PLEAS. § 112 
 
 XI. Because the Disoovery Sought is Immaterial to the Relief 
 Prayed? 
 
 XII. Because Hie Discovery would be a Breach of Professional 
 Confidence. — This privilege belongs, though in a different degree, 
 to both adviser and client, and has been held to apply to all com- 
 munications had in the progress of the cause itself, and with refer- 
 ence to it before it was instituted ; to letters written asking the 
 solicitor's opinion upon the matter in question, and which after- 
 wards became the subject of the suit, and to observations, notes, 
 and remarks made by counsel upon their briefs.^ 
 
 Whether litigation results or not, the communications are none 
 the less privileged ; and so far as the matter is between an attorney 
 and his client, the privilege is that of the client, and not of the 
 attorney f and with respect to such communications the mouth of 
 the witness is forever sealed, and he cannot reveal them at any 
 time, or in any proceeding, although the client be no party to it, 
 and however improbable it may be under the circumstances that 
 any injury can result to him from the disclosure, and although the 
 relation of attorney and client has ceased by the dismissal of the 
 attorney.* 
 
 ' Daniel's Chy. Pr., Vol. 1, p. 570; Story's Eq. PI., ? 559; 4 Minor's Institutes, 
 p. 1152; Mitf. Eq. PI. 149, 154. 
 
 2 Daniel's Chy. Pr., Vol. 1, p. 571. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 574; Foster v. Hall, 12 Pick. 89; 22 Am. Dec. 
 400; Ibid. 410, note. The common attorney of two or more parties, adverse in 
 interests, cannot testify in a suit between one of them and a third person, as to 
 communications made between them in his presence, before suit, while he was act- 
 ing as such attorney, in respect to the matter in question. Eoot v. Wright, 84 N. 
 Y. 72; 38 Am. K. 495; Bacon v. Frisbe, 80 N. Y. 394; 36 Am. R. 627; note, 631; 
 State of West Virginia v. Douglass, 20 W. Va. 770. The attorney cannot be com- 
 pelled or allowed to disclose communications or to produce letters. Bank of Utica 
 V. Mersereau, 3 Barbour's Chy. 528; 49 Am. Dec. 189; note, p. 233. The privi- 
 lege extends to information acquired from client either orally or from books or 
 papers shown him. Crosby d. Berger, 11 Paige, 377; 42 Am. Dec. 117; note, p. 
 119. See the whole subject, and especially as to when the relationship of client 
 and attorney exists. Am. & Eng. Encyc. of Law, Vol. 19, p. 127 et seq.; Chahoon 
 V. Commonwealth, 21 Grat. 822. The client himself may waive the privilege. 
 Tate et al v. Tate's Ex' or, 75 Va. 523. 
 
 *Staxkie on Evidence, Vol. 2, p. 395; Philipps, Ihid., Vol. 1, p. 106; Green- 
 leaf, Ibid., Vol. 1, I 237. 
 
§ 112 GROUNDS OF DEMUEEEE. 377 
 
 The whole subject of privileged communications, and the ground 
 upon which the principles rest, cannot be better stated than they 
 are in the following citation : ^ "To force from the party himself 
 the production of communications made by him to professional 
 men, seems inconsistent with the possibility of an ignorant man 
 safely resorting to professional advice, and can only be justified if 
 the authority of decided cases warrants it. But no authority 
 sanctions the much milder violation of professional confidence, and 
 in circumstances wholly different, which would be involved in 
 compelling counsel, or attorneys, or solicitors, to disclose matters 
 committed to them in their professional capacity, and which, but 
 for their employment as professional men, they would not have 
 become possessed of. If touching matters that come within the 
 ordinary scope of professional employment, they receive a com- 
 munication in their professional capacity, either from a client or 
 on his account, and for his benefit in the transaction of his busi- 
 ness, or which amounts to the same thing, if they commit to paper, 
 in the course of their employment on his behalf, matters which 
 they know only through their professional relation to the client, 
 they are not only justified in withholding such matters, but bound 
 to withhold them, and will not be compelled to disclose the infor- 
 mation or produce the papers in any court of law or equity, either 
 as party or as witness. The foundation of the rule is out of regard 
 to the interests of justice, which cannot go on without the aid of 
 men skilled in jurisprudence, in the practice of the courts, and in 
 those matters affecting rights and obligations which form the sub- 
 ject for all judicial proceedings. If the privilege did not exist at 
 all, every one would be thrown upon his own legal resources, de- 
 
 ' Moncure, P., in Chahoon's Case, 21 Grat. 838, citing Lord Brougham in Bolton 
 V. Corporation of Liverpool, 1 Mylne and Keen, 88. See also Gilbert v. People, 
 1 Denio, 41; 43 Am. Dec. 546; note, p. 648; Tate et al v. Tate's Ex' or, 75 Va. 522; 
 Snowi;. Gould, 74 Me. 540; 43 Am. Deo. 49; note, p. 51; McLellan v. Longfellow, 
 32 Me. 494; 54 Am. Dec. 599; note, p. 601. As to the privileges given to com- 
 munications made to departments of the government, see Worthington v. Scribner, 
 109 Mass. 487; 12 Am. E. 736. 
 
378 DEMURRER AND PLEAS. § 112 
 
 prived of all professional assistance, a man would not venture to 
 consult any skilful person, or would only dare to tell his counsel 
 half his case. In all such cases it is plain that the attorney is not 
 called upon to disclose matters which he can be said to have learned 
 by communication with his client, or on his client's behalf, matters 
 which were so committed to him in his capacity of attorney, and 
 matters which in that capacity alone he had come to know." 
 
 Communications made to a solicitor by a third party, or infor- 
 mation obtained from a collateral source, are not privileged from 
 disclosure, even though such communications are made to, and 
 information acquired by, him in his character of solicitor, and 
 solely by reason of his acting in that character ; ' but within the 
 scope of his professional employment, the communications made 
 to an attorney by his client are privileged, and without the consent 
 of the latter, he should neither be required nor permitted to testify 
 concerning them.^ 
 
 The privilege does not apply to communications not made or 
 received professionally in the usual course of business, and during 
 the existence of the professional relation. Thus, communications 
 made to an attorney in the character of a steward, or merely as a 
 friend, although he was an attorney-at-law ; or where the attorney 
 was himself a party to the original transaction, such as being the 
 witness to a deed or will ; or where he was present when his client 
 swore to an answer in chancery ; or where he gained his knowl- 
 edge as agent of the party, and not as his attorney ; ^ or where an 
 attorney drew a will wherein the children of the deceased are 
 described as "natural children," and he was called -on to testify 
 as to what was said by the testator about the character of the 
 children and his relations to their mother in interviews between 
 the testator and himself, preceding and connected with the prep- 
 aration of the will.* In all such cases there was no professional 
 
 1 Daniel's Chy. Pr., Vol. 1, p. 574. 
 
 ^ Connecticut M. L. Ins. Co. v. Schaeffer, 4 Otto, 457. 
 
 ^ Daniel's Chy. Pr., Vol. 1, p. 575. See also Jackson v. French, 20 Am. Dec. 699. 
 
 * Blackburn v. Crawfords, 3 Wallace, 175. 
 
§ 113 THE EFFECT OF A DEMUREEE. 379 
 
 confidence, and the attorney stands in the same situation as any 
 other person. 
 
 The privilege extends to one who acts as an interpreter, to 
 scriveners, to an agent between an attorney and his client, to the 
 clerk of a solicitor,^ to a professional agent employed, to collect 
 evidence, and to the representatives of a party as against third 
 persons, but not as between claimants under him. 
 
 The privilege is denied, however, to clergymen, physicians, agents 
 or stewards, to conveyancers who are neither counsel nor solicitors, 
 and to one who has been consulted confidentially as an attorney 
 when in fact he was not one.^ 
 
 Where the solicitor is, however, a party to a fraud, or where 
 the communications are made with a view to affecting any illegal 
 purpose, the privilege does not attach, because such engagements 
 are not part of his duty as a solicitor f but, on the contrary, no 
 man more than a lawyer has better opportunities, and is under 
 greater obligations to use them, to suppress vicious designs. 
 
 To this class of cases should also be properly added correspond- 
 ence or communications which relate to the State, and more 
 especially military matters, which, from considerations of the high- 
 est necessity, are exempt from disclosure. 
 
 XIII. Because the Amended or Supplemental Bill contradicts the 
 Original Bill, and makes a New Case.^ 
 
 , The Effect of a Demurrer. 
 
 § 113. We have already'^ observed that where the demurrer is 
 to the whole bill, and a part thereof is good, the demurrer to the 
 whole must be overruled, notwithstanding a part of the bill is bad ; 
 and also that where there are separate demurrers to the same 
 
 ^ Jackson v. Frencli, 20 Am. Dec. 699. 
 = Daniel's Chy. Pr., Vol. 1, pp. 576-577. 
 ^Id.,-p. 578. 
 *Ante, Ch. 5, ? 104, 105. 
 
 '^ Ante, I 110, this chapter; Sutton ti. Gatewood and Wife, 6 Munf. 398; Living- 
 ston V. Story, 9 Peters, 632. 
 
380 DEMUEEEE AND PLEAS. §113 
 
 bill, some of which are well and some badly taken, the good de- 
 murrers will be sustained, and the bill amended or dismissed, as 
 the case may be, while the bad demurrers will be overruled. 
 
 Wherever a demurrer is overruled the case is heard on plea or 
 answer if the party see fit to file them,' and the plaintiif may have 
 a rule upon the defendant to answer.^ 
 
 After a demui-rer is overruled, a second demurrer to the same 
 extent cannot be allowed,' for this would be in effect to rehear the 
 case on the first demurrer ; but a party may, in some cases, make 
 the same defence by plea,^ and after a demurrer is overruled or 
 allowed to an original bill, and an amended or supplemental bill 
 is filed, there may still be a demurrer to that.° 
 
 Where the demurrer is allowed to the whole bill, that ends the 
 case, and no farther proceedings can be had ; but when the bill is 
 susceptible of amendment the case will not be dismissed, but the 
 plaintiff will be allowed to file an amended bill ; and when the 
 demurrer is sustained as to one or more defendants, or against one 
 or more plaintiffs, their names will be stricken from the record, 
 and the case will be dismissed as to them.' 
 
 Upon overruling the demurrer leave is always given to the de- 
 fendant to file his answer ; and when the demurrer is to a bill of 
 discovery, an answer which shows that the defendant is protected 
 from making the discovery sought by the bill, is sufficient.^ 
 
 It has sometimes been questioned whether the dismissal of a bill 
 or demurrer is a bar to another suit on the same subject-matter f 
 but the rule in this respect seems now to be well settled, as follows : 
 
 1 Sutton V. Gatewood and Wife, 6 Munf. 398; Livingston v. Story, 9 Peters, 632; 
 Northwestern Bank v. Nelson, 1 Grat. 111. 
 
 ■' Code, § 3273. 
 
 3 Ihid. 
 
 * Daniel's Chy. Pr., Vol. 1, pp. 597, 599, 600; Story's Eq. PL, | 460; Hoge et als 
 ■V. Jenkin, Comm'r, &c., 79 Va. 220. 
 
 5 McComb V. Lobdell, 32 Grat. 185. 
 
 •^Picken'sEx'orsu Knisely, 36 W. Va. 797. 
 
 ' Northwestern Bank v. Nelson, 1 Grat. 111. 
 
 'Northwestern Bank ?;. Nelson, 1 Grat. 111. 
 
§ 113 THE EFFECT OP A DEMUEEEE. 381 
 
 It is undoubtedly the rule that a judgment of a court of compe- 
 tent jurisdiction, upon a question directly involved in one suit,. 
 constitutes a bar to any other suit between the same parties or their 
 privies for the same points of controversy ; but to constitute such 
 a bar it must appear either upon the face of the record or be shown 
 by extrinsic evidence, that the previous question was raised and 
 determined in the former suit, and that the suit was determined 
 on its merits} If the first suit was dismissed for defect of the 
 pleadings, or parties, or a misconception of the form of proceeding, 
 or the want of jurisdiction, or was disposed of on any ground which 
 did not go to the merits of the suit, the dismissal will prove no 
 bar to another suit.^ It may, of course, be that sustaining a de- 
 murrer is a dismissal on the merits ; but to constitute a bar, this 
 fact must plainly appear ; and unless the pleadings render it im- 
 possible to infer that there could have been any other ground than 
 the merits upon which the demurrer could have been dismissed, 
 the ground of dismissal should be stated in the decree.* 
 
 ' Where there is a demurrer, and the court adjudicates the principles of the case 
 in favor of the plaintiff, without acting pro foiina on the dtimurrer, it will be con- 
 sidered that the demurrer was overruled (Hinchman, Adm'r, v. Ballard, Adm'r, 
 7 W. Va. 152) or abandoned. Basey v. Gallaher, 20 Wall. 670. Mathews v. Jen- 
 kins, 80 Va. 463. Rogers et al v. Rogers, 37 W. Va. 407; BlackweU's Adm'r v. 
 Bragg, Trustee, 78 Va. 529; Seamster el al v. Blackstock et als, 83 Va. 232; Hurt 
 V. West's Adm'r, 87 Va. 78; Diehl v. Marchant, Id. 447; Foster v. City of Man- 
 chester, 89 Va. 92; Burner v. Hevener, 34 W. Va. 774; 1 Bart. Law Pr., p. 533 
 et seq., and cases cited in the notes. See also McCoy v. McCoy, 29 W. Va. 794; 
 Cornell v. Hartley, 41 W. Va. 502; 23 S. E. B. 793. 
 
 ^ Robinson's Practice, Vol. 7, p. 1 to 482; Hughes v. United States, 4 Wall. 236; 
 RusseU V. Place, 4 Otto, 606; Foster, &c. v. Busteed, 100 Mass. 412. See also 
 Durant v. Essex Co., 7 Wall. 109; House v. Mullen, 22 Wall. 42. 
 
 ' Parol evidence is admissible in a subsequent suit to show what was actually in 
 issue and determined in a former suit when the record leaves it in doubt. Withers' 
 A dm' r V. Sims et cds, 80 Va. 651. When the record does not show that a demurrer 
 had been overruled, that must be presumed if the court has decided on the merits 
 for the plaintiff (Smith's Ex'x v. Profitt's Adm'r, 82 Va. 832), nor is a decree 
 erroneous for failing to pass upon a demurrer if it in effect disposes of it, although 
 not in terms mentioning it. Id.; State v. Hall, 40 W. Va. 455. The dismissal 
 of a bill, without reservation of right to sue again, or some equivalent expression, 
 is conclusive of the matters involved in the bill, and unless it otherwise appears in 
 
382 DEMUEEEE AND PL-EAS. §114 
 
 In one case there was a bill and answer ia which six grounds of 
 demurrer were assigned, several of which did not touch the merits 
 of the controversy, and the bill was dismissed, the decree not dis- 
 tinguishing the demurrer from the answer, or stating upon which 
 of the grounds the demurrer was sustained. In a new suit between 
 the same parties for the same subject of controversy, it was held 
 that the former suit, and the decree dismissing the same, did not 
 constitute a bar/ 
 
 The Frame and Nature of Pleas. 
 
 § 114. A plea in chancery must direct the defence to a single 
 point, although it may embrace a variety of circumstances. If it 
 be multifarious and contain distinct points, it will be bad ; and 
 such was held to be true of a plea that set up the statute of limit- 
 ations, and also alleged that the plaintiff who sued as the personal 
 representative of a decedent was not such representative.^ 
 
 The plea must follow and not evade the bill, and if it does not 
 go to the whole bill, it must be clear to what point it does apply, 
 and must be a complete answer to that ; and while two defences 
 cannot be made in the same plea, the whole spirit of modern 
 decisions, even where it is not expressly so provided by statute,* 
 permits as many separate and distinct pleas to be filed as there 
 may be separate matters of defence.'' The averments of the plea 
 must be positive, complete,'' and distinct, and not introduced by 
 way of argument. They must relate directly to the allegations of 
 the bill, and not to any side or separate subject; and the plea 
 
 the decree it will be taken that the dismissal was on a hearing on the merits. 
 Carberry v. W. Va. & P. E. K. Co., W. Va.; 28 S. E. E. 694. 
 
 ' Chrisman's Adm'x v. Harman el ah, 29 Grat. 494. As to the plea of res adjvr 
 dicata, see Post, § 117. 
 
 * Goodrich v. Pendleton, 3 Johns. Chy. E. 384; Milligan v. Milledge and Wife, 
 3 Cranch, 220; Barrett v. McAUister, 35 W. Va. 103; MUler v. Miller, 92 Va. 196. 
 
 ' § 3264; Code W. Va., Ch. 125, § 20. 
 
 * Minor's Institutes, Vol. 4, p. 1169, 1170; Jones's Ex'ors v. Clark, 25 Grat. 
 675. See also Daniel's Chy. Pr,, Vol. 1, p. 610. 
 
 * Allen, &o. V. Eandolph, &c., 4 Johns. Chy. E. 693; Bolton v. Gardner, 3 
 Paige, 278. 
 
§ 114 THE FRAME AND NATURE OF PLEAS. 383 
 
 should be of extrinsic matter ; for if it appear in the bill it should 
 properly be met by demurrer.^ 
 
 If the plea is intended as a bar to only part of the bill its con- 
 clusion should not be more extensive than the subject-matter to 
 which it relates. It should not conclude to all the relief prayed 
 for, when the matter pleaded can only bar a part of that relief; 
 but in such cases it will be ordered to stand for so much of the 
 bill as it properly covers, and the defendant may be required to 
 answer to the residue.^ 
 
 A purely negative plea to a bill is now held to be good, as for 
 instance, a plea to a bill claiming as heir at law that the plaintiff 
 was not heir at law is admissible, and if proven will be a bar to 
 the complainant's right to a discovery.^ 
 
 Not only must the plea be perfect in itself, but it must some- 
 times be supported by an answer ; as, for instance, where a release 
 was pleaded it was held to be necessary for the defendant to sup- 
 port his plea by a full answer and discovery as to every equitable 
 circumstance charged in the bill to avoid the release. So where 
 the defendant relies on the sttitute of limitations, and there are 
 circumstances stated in the bill which, if true, would take the case 
 out of the statute, a pure plea of the statute will be no bar, unless 
 it be accompanied by an answer meeting those circumstances par- 
 ticularly and precisely, and either denying them or destroying 
 their force.* 
 
 The plea is usually, though not necessarily,' introduced in form 
 by a protestation, and if it be accompanied by an answer merely 
 to support it, the answer is stated to be made for that purpose, not 
 waiving the plea. If the plea is to part of a bill only, and there 
 
 ' Northwestern Bank v. Nelson, 1 Grat. 110. 
 
 2 French, &c. v. ShotweU, 5 Johns. Chy. E. 562; 20 Johns. Chy. E. 668. 
 
 ''Minor's Institutes, Vol. 4, p. 1171. 
 
 * Goodrich D. Pendleton, 3 Johns. Chy. E. 384; Kanen. Bloodgood, &c., 7 Johns. 
 Chy. E. 134; 8 Cow. 360; Mitford's Equity Pleading, 336; Story's Equity Plead- 
 ing, I 672; Bayley v. Adams, 6 Ves. 586 and seq., 599, note; Foley -o. Hill, 3 My. 
 & Cr. (14 Bng. Chy. E. ) 480, &c. 
 
 5 I 3243, el seq.; Code W. Va., Oh. 125, ? 26, et seq. 
 
384 DEMURRER AND PLEAS. § 114 
 
 is an answer to the rest, it is expressed to be an answer to so much 
 of the bill as is not before pleaded to, and is preceded by the same 
 disclaimer of waiving the plea. 
 
 Pleas must be signed by counsel, and while in the United States 
 courts they must be sworn to, and the counsel must certify that in 
 his opinion they are true in ' point of fact, in Virginia it is not 
 usual to swear to any other pleas than those of a dilatory character.' 
 
 1 § 3278; Code W. Va., Ch. 125, I 39; Minor's Institutes, Vol. 4, p. 1172, from 
 which also is copied the following form of Pleas: 
 
 General Formula of a Plea in Chancery. 
 
 The separate plea of Jane Hart, in her own right, and as administratrix with 
 the will annexed of Thomas Hart, deceased, to a bill of complaint exhibited against 
 her and others, in the circuit court for the county of A, by James Hart. 
 
 The said defendant by protestation, not confessing or acknowledging all or any 
 of the matters and things in tlie said bill of complaint contained to be true in man- 
 ner and form as the same are therein Set forth, for plea, n»vertheless, to said bill, 
 doth plead and aver — 
 
 [Here set forth the substance of the plea. ] 
 
 Wherefore the said defendant prays judgment, whether she shall be compelled 
 to make ■ any other or further answer to the said bill, and prays to be hence dis- 
 missed with her reasonable costs and charges in this behalf most wrongfully sus- 
 tamed. D. G. W., s. p. d. 
 
 Pleas in Abatement. 
 
 1. Coverlwe of Plaintiff. 
 
 [Commence as in the general formula, and then say:] 
 That the said complainant, at the time of filing her said bill, was, and now is, under 
 coverture of one H, her husband, who is still living, and in every respect capable, 
 if necessary, of instituting a suit in equity in her behalf. 
 
 [Conclude as in the general formula. ] 
 
 2. Coverture of Defendant. 
 
 [Taking the commencement and conclusion for the formula. ] 
 That this defendant, at the time of filing the aforesaid bill, was, and now is, under 
 coverture of one H, her husband, who is still living, and capable of defending this 
 suit in her behalf. 
 
 Pleas in Bar. 
 
 1. Plea of Statute of Limitations. 
 
 That if the complainant ever had any cause of action or suit against this defend- 
 ant, for or concerning any of the matters in the said bill mentioned, which the de- 
 fendant doth in no wise admit, such cause of action or suit did not accrue within 
 
 years before the filing of the said biU, or before suing out or serving pro- 
 
 dess against this defendant to appear at and answer the said bill; nor did this de- 
 fendant at any time withm years next before the institution of this suit 
 
§ 115 FILING PLEAS. 385 
 
 The rule which in certain cases requires an answer in support of 
 a plea does not render it necessary that one should deny positively 
 in the answer matters of which it cannot be presumed that he has 
 any personal knowledge. It is sufficient for him to deny such 
 matters according to his knowledge, information and belief.* 
 
 Filing Pleas. 
 
 § 115. If the plea be in abatement, it cannot be received after 
 the defendant has demurred,^ pleaded in bar, or answered to the 
 declaration or bill, nor after a rule to plead or a decree nisi ; ^ but 
 other pleas may be filed, either at rules or in term, as the case may 
 be, and the statute ^ is quite liberal in allowing new or amended 
 ' pleas to be filed, provided the opposite party cannot be injured 
 thereby. Any plea may be filed, at rules or in term, as the case 
 
 aforesaid, promise or agree to come to any account for, or to make any satisfaction, 
 or to pay any sums of money, for or by reason of the said matters charged in said 
 
 bm. 
 
 [Conclude as in the general formula. J 
 
 2. Plea of the Statute of Parol Agreements. 
 
 That neither this defendant, nor any one by him authorized, did ever sign any 
 contract or agreement in writing, for making and executing any sale or conveyance • 
 to the complainant of the land and premises in the biU mentioned and described, 
 or of any interest therein, or to any such effect, or any memoranda or note in writ- 
 ing of any such agreement. 
 
 See Mitf. Eq. PL; 2 Praxis Aim. Cur., Canb. 450; Sands' Suit in Eq. 384, et 
 seq. ; Van Heth Eq. Draftsman, 446, el seq. " No formal defence shall be required 
 in a plea; it shall commence as follows: 'The defendant says that.'" | 3269; 
 CodeW. Va., Ch. 125, I 26. 
 
 ' Bolton V. Gardner, 3 Paige, 273. " And when an affidavit is required in sup- 
 port of any pleading, it shall be sufficient if the affiant swear that he believes it to 
 be true." ? 3282. See, however, Code W. Va., Ch. 125, § 42. On the subject 
 of this section, see also Daniel's Chy. Pr., Vol. 1, p. 681 to 689. 
 
 ^ The word "demurred" is omitted from the statute of West Virginia. Code 
 W. Va., Ch. 125, ? 16. 
 
 3 1 3260; Code W. Va., Ch. 125, § 16. 
 
 * § 3384; Code W. Va., Ch. 131, I 8. Where pleadings in the record are un- 
 explained as to how and when they got there, but are mentioned as filed in other 
 pleadings, and the parties were represented -by counsel taking depositions, they 
 must be treated as properly in the case. Smith's Ex'x v. ProflStt's Adm'r, 82 
 Va. 832. 
 
 25 
 
386 DEMURRER AND PLEAS. § 116 
 
 may be, the time of filing being governed by the question of 
 whether the case has or has not been set for hearing.^ 
 
 The Issue upon Pleas. 
 
 § 116. The statute' provides that a plaintiif in equity may have 
 a plea or demurrer set down to be argued, and if the same be over- 
 ruled no other plea or demurrer shall afterwards be received ; but 
 there shall be a rule upon the defendant to answer, and he may, 
 at the discretion of the court, be required to answer the bill forth- 
 with, and in default thereof it may be taken for confessed, and the 
 matter thereof decreed ; or the plaintiff may have an attachment 
 against the defendant, or an order for him to be brought in to 
 answer interrogatories. The plaintiff may also take issue upon a 
 plea, and have such issue tried by a jury, and if the plea be found 
 false, he shall have the same advantages as if it had been so found 
 by a verdict at law. 
 
 When the plaintiff takes issue on the defendant's pleadings,' or 
 traverses the same, or demurs so that the defendant is not let in 
 to allege any new matter, the plaintiff may, without giving a rule 
 to rejoin, proceed as if there were a similiter or joinder in de- 
 murrer ; ' but even in a common law suit, where greater strictness 
 in pleading is required, if the parties go to trial, and the subject 
 of a plea and replication are contested before the jury, and no 
 objection is taken to the want of joinder in the issue, the objection 
 on that account cannot be taken in the appellate court.* 
 
 If the facts relied on by the plea are proved, and the plea is to 
 the whole matter of tHe bill, the bill will, of course, be dismissed ; ° 
 but the benefit of the plea may be saved to the hearing, or it may 
 
 1 Ante, Ch. 4, ? 84. 
 
 ^ § 3273; Code W. Va., Ch. 125, § 30. 
 3 § 3268; Code W. Va., Ch. 125, | 25. 
 * Southside E. B. Co. v. Daniel, 20 Grat. 344. ' 
 
 ^ Hughes V. Blake, 1 Mason, 515; Dows, &c. v. McMichael, 2 Paige, 345; Holmes, 
 &c. V. Eemsen, &c., 7 Johns. Chy. E. 290; Lane r. EUzey, 6 Band. 661. 
 
§ 116 THE ISSUE UPON PLEAS. 387 
 
 be ordered to stand for an answer/ If the benefit of the plea be 
 saved to the hearing, it is considered that so far as appears to the 
 court it may be a defence ; bijt that there may be matter disclosed 
 in evidence which would avoid it, supposing the matter pleaded to 
 be strictly true ; and the court, therefore, will not preclude the 
 question ; ^ and when it is ordered to stand for an answer, it is 
 merely determined that it contains matter which may be a defence, 
 or part of a, defence, but that it is not a full defence ; or that it 
 has been informally offered by way of plea ; or that it has not 
 been properly supported by answer, so that the truth of it is 
 doubtful ; for if a plea requires an answer to support it, upon 
 argument of the plea the answer may be read to counterprove the 
 plea ; and if the defendant appears not to have sufficiently sup- 
 ported his plea by his answer, the plea must be overruled, or 
 ordered to stand for an answer only. A plea is usually ordered 
 to stand for an answer, where it states matter which may be a 
 defence to the bill, though perhaps not proper for a plea, or in- 
 formally pleaded. But if a plea states nothing which can be a 
 defence, it is merely overruled. If a plea is ordered to stand for 
 an answer, it is allowed to be a sufficient answer to so much of 
 the bill as it covers, unless by the order liberty is given to except. 
 But that liberty may be qualified, so as to protect the defendant 
 from any particular discovery which he ought not to be compelled 
 to make. And if a plea is accompanied by an answer, and is 
 ordered to stand for an answer, without liberty to except, the 
 plaintiff may yet except to the answer, as insufficient to the parts , 
 of the bill not covered by the plea. If a plea a-ccompanied by an 
 answer is allowed, the answer may be read at the hearing of the 
 cause to counterprove the plea.^ 
 
 Where the statute of limitations is pleaded to a bill which does 
 not require an answer to support the plea, and there is an answer 
 
 iStor/sEq. PI., ? 697. 
 
 ^Ibid., I 698. 
 
 3 Story's Eq. PI., §699. 
 
388 DEMUREEE AND PLEAS. § 116 
 
 notwithstanding, which overrules the plea, if the plea be good in 
 substance, as to the whole or any part of the relief sought, the 
 court will permit the plea to stand as a part of the answer, or will 
 allow the defendants the full benefit of insisting upon the statute 
 in their answer.^ So where the plea of the statute is bad, because 
 it is not accompanied by an answer supporting it, and the court 
 overrules the plea, and orders the defendant to answer, liberty 
 will be given him to insist on the benefit of the statute in his 
 answer f and sometimes where a plea is overruled the court will 
 permit it to stand for an answer so far as it goes, with liberty to 
 the complainant to except.^ 
 
 Where a plea of the statute of limitations, and the a;nswer ac- 
 companying the same, are overruled, upon the ground that the 
 answer contains such an acknowledgment of the debt as to defeat 
 the operations of the statute, and the defendants are ordered to put 
 in a full and j)erfect answer, if this decree be affirmed by an ap- 
 pellate court, and a motion be made to send back the cause, with 
 directions to allow the defendants to amend their answer, so as to 
 do away with the effect of their admission, such motion will gen- 
 erally be denied.* If after these proceedings the defendant, instead 
 of answering fully, puts in an answer giving in fact no discovery 
 or response to the subject-matter of the bill, but confined to the 
 setting up of the statute-as a bar, such answer may be excepted to. 
 The defendant will not be permitted to bring the very same matter 
 again into discussion, but will be compelled to make discovery and 
 answer to the main charges in the bill.'' 
 
 Sometimes it is in the power of the defendant to support his 
 plea by the bill of the plaintiff" and the documents filed with it. 
 
 ' Souzer and Wife v. De Meyer, &c., 2 Paige, 577. 
 
 = Goodrich v. Pendleton, 3 Johns. Chy. R. 394; Salters v. Tobias, &c., 3 
 Paige, 346. 
 
 'OrcutttJ. Orms, 3 Paige, 459; Kirby and Wife t'. Taylor, &c., 6 Johns. Chy. 
 K. 254. 
 
 < Murray, &c. v. Coster, &c., 20 Johns. E. 604-610. 
 
 ^Coster, &c. v. Murray, &c., 7 Johns. Chy. E. 167; 4 Cow. 617. 
 
§ 117 PLEAS TO THE JUEISDICTIOlSr. 389 
 
 This occurred in a case * where the bill was to foreclose a mort- 
 gage, which was given to secure the principal money with interest, 
 and rent of the mortgaged premises. This appeared by the bill, 
 and the deed and agreement filed with it. Issue was joined on 
 the plea of usury, but no depositions were taken on either side. 
 The court of appeals was of opinion that the bill and documents 
 furnished such evidence in support of the plea that it must be taken 
 as true, unless some explanation compatible with the pleadiags had 
 been adduced on the other side. No such explanation being given, 
 the plea was sustained, and the bill dismissed. 
 
 If the defendant's affirmative plea is entirely unsupported by 
 evidence, and at the hearing of the cause he makes default, the 
 complainant will be entitled to a decree against him, in the same 
 manner as if the several matters charged in the bill had been con- 
 fessed or admitted.^ 
 
 Pleas to the Jurisdietion. 
 
 § 117. We have before observed ^ that an objection to the juris- 
 diction of a court should be made at the earliest opportunity ; but 
 if the objection be apparent on the record, it may be taken ad- 
 vantage of at any stage of the proceedings, even at the hearing or 
 on appeal. 
 
 The statute * provides, that when the bill shows on its face proper 
 matter for the jurisdiction of the court, no exception for want of 
 such jurisdiction shall be allowed, unless it be taken by plea in 
 abatement, and the plea shall not be received after the defendant 
 has demurred,' pleaded in bar, or answered the declaration or bill, 
 nor after a rule to plead, or a conditional judgment or decree nisi. 
 
 In construing this statute it has been held that it applies where 
 the objection is for mere matter of abatement, as where the case is 
 
 ' Lane's Ex'x v. Ellzey, 6 Rand. 661. 
 
 ' Dows, &c. V. McMichael, 2 Paige, 345. 
 
 3 Ante, Ch. 1, § 17. 
 
 *? 3260; Code W. Va., Ch. 125, i 16. 
 
 ^ This word is omitted from the statute of West Virginia. Code, Ch. 125, ^ 16. 
 
390 bEMUEEEE And pleas. § 117 
 
 a proper one for a court of equity, but not for the particular, court 
 in which the suit is brought ; or where the suit ought to be abated 
 by reason of some circumstances attending the situation of the 
 plaintiff or defendant, or the like.^ But the statute does not apply 
 where the objection, instead of merely tending to direct the pro- 
 ceedings to some other equitable jurisdiction, or to suspend them, 
 or to abate the particular suit, is absolutely a bar to the claim to 
 the interposition of a court of equity, and impugns the right to sue 
 in that court.^ The question of jurisdiction may also be raised by 
 the objection that another court of equity has control of the sub- 
 ject, as for instance, in a suit in the United States courts, that the 
 matter is one for State jurisdiction, or that there is another suit 
 pending between substantially * the same parties, for the same mat- 
 ter, in some other court of competent jurisdiction. If either of 
 these matters appear on the face of the bill, the objection may be 
 raised by demurrer, otherwise it must be set up by plea.* 
 
 The defence of another suit pending where it is pleaded to an 
 action at law has been regarded (among conflicting authorities) as 
 a plea in abatement ; but in equity it is sometimes spoken of as a 
 plea in bar, and sometimes as a plea in abatement ; but however this 
 may be, the objection should at least be taken before the hearing.^ 
 Like other pleas in abatement, or in the nature thereof, a plea to 
 
 ' Ante, Ch. 1, i 17. 
 
 2 Ibid. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 635. 
 
 ^Story's Eq. PL, §488. 
 
 ^Anle, Ch. 4, ? 86; Kob. Pr., Vol. 5, p. 37; Williamson's Trustee v. Paxton, 
 Trustee, 18 Grat. 504; Mitford's Cliy. PI. 277; Story's Eq. PI., J 735, note; Ibid., 
 § 48?; Daniel's Chy. Pr., Vol. 1, p. 632. The defence of another chancery suit 
 pending must be made by plea or motion to dismiss as a preliminary question and 
 cannot be made by answer. Anderson v. Piercy, 20 W. Va. 282. The pendency 
 of a suit in one State is no bar, either at law or in equity, to another suit in another 
 State for the same matter and between the same parties. Davis v. Morriss's Ex' or, 
 83 Va. 297; Conrad, Trustee, v. Buck, 21 W. Va. 396; Hatch ti. Spofford, 22 Conn. 
 485; 58 Am. Dec. 433. The question of which suit was brought first is to be de- 
 termined by the date of the service of the writ. Craig v. Hoge, 95 Va. 275; 28 S. 
 E. E. 317. 
 
§ 117 PLEAS TO THE JUEISDICTION. 391 
 
 the jurisdiction on this ground should allege that the court has not 
 jurisdiction of the subject, by what means it is deprived of juris- 
 diction, and what court has jurisdiction. If the plea does not 
 properly set forth these particulars, it is bad in point of form.^ 
 It should also show that the particular jurisdiction alleged to be 
 entitled to the exclusive cognizance of the suit is able to give a 
 complete remedy ; ^ that the court is a court of this country ; ^ that 
 there has been appearance, or process requiring appearance ; thait 
 the suit is still depending ; * and the time of the institution of the 
 suit should be stated.^ 
 
 These rules apply to cases of two suits in equity ; but where the 
 plea is that an action at law is pending for the same subject-matters 
 the plaintiff may.be put to his election as to which court he will 
 proceed in." 
 
 Where one purchased at a judicial sale, but failed to comply, and 
 pending the suit under which he bought, the heirs of the owners 
 of the land filed a bill to compel performance of the contract, it 
 was held that as the first suit was pending, the last suit would not 
 lie.' Where, however, several suits by different creditors are 
 pending, the court will order the proceedings in all the suits but 
 one to be stayed, and will require the several parties to come in 
 under the decree in that suit, so that only one account may be 
 necessary ; and if a creditor with knowledge that there has been 
 a decree for an account in another creditor's suit brings a separate 
 
 ' Story's Eq. PI., § 15; Quarrier, Trustee, v. Peabody Insurance Co., 10 W. Va. 
 507. 
 
 2 Daniel's Chy. Pr., Vol. 1, p. 629. ' 
 
 ' Ibid. , § 633, and note, in which it is stated that the mere pendency of a suit in 
 a court of the United States cannot be pleaded in abatement or in bar to a suit for 
 the same cause in a State court, and the converse of this is fully laid down in the 
 case of Stanton et al v. Embry, Adm'r, 3 Otto, 548. See also Insurance Co. v. 
 Brune's Assignee, 6 Otto, 588; Gordon v. GUfoil, 9 Otto, 168. 
 
 * Daniel's Chy. Pr., Vol. 1, p. 636. 
 
 6 Daniel's Chy. Pr., Vol. 1, p. 637; Stor/s Eq. PL, I 737. 
 
 « Daniel's Chy. Pr., Vol. 1, p. 634; Williamson, Trustee, v. Paxton, Trustee, 18 
 Grat. 504. See Foley v. Euley, W. Va. ; 27 S. E. E. 268. 
 
 ' Heywood v. Covington's Heirs, 4 Leigh, 373. 
 
892 DEMUEEEE AND PLEAS. § 117 
 
 suit for his own claim, he will be compelled to pay the costs ; ^ and 
 if the bill shows that he had knowledge of the decree for an ac- 
 count in the first suit, his suit will be dismissed upon demurrer to 
 the bill.2 
 
 Although it is necessary that the first suit should be for the same 
 matter as the second, the second suit need not be for the whole 
 matter embraced by the first; it is, however, requisite that the 
 whole effect of the second suit should be attainable in the first, and 
 if it appears on the face of the plea that this is not the case, the 
 court will overrule it. It sometimes happens, however, that the 
 second bill embraces the whole subject in dispute more completely 
 than the first ; in such cases the practice appears to be to dismiss 
 the first bill with costs, and to direct the defendants in the second 
 cause to answer, upon being paid the costs of a plea allowed, which 
 puts the case upon the second bill in the same situation that it 
 would have been if the first bill had been dismissed before the 
 filing of the second.^ The common practice in such cases in Vir- 
 ginia is to hear the causes together. 
 
 The defence of another suit pending does not apply where the 
 second bill, brought by a different person, although for the same 
 matter as far as concerns the foundation of the demand, is for a 
 different equity ; nor where, although the second suit is brought 
 by the same person for the same purpose, it is brought in a differ- 
 ent right.^ 
 
 ^ Stephenson v. Taverners, 9 Grat. 398. 
 
 ^ Kent's Adm'r v. Qoyd's Adm'r, 30 Grat. 555; Bilmeyer v. Sherman, 23 W. 
 Va. 656; Saunders v. Griggs' Adm'r, 81 Va. 506. A plaintiff may sue at law on 
 his bond and in equity at the same time to enforce a deed of trust. The defence 
 of another suit pending must be made in the chancery suit on a rule to elect. Priddy 
 & Taylor v. Hartsook, 81 Va. 67; Williamson v. Paxton, 18 Grat. 475. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 633. 
 
 'Story's Eq. PL, ? 739. A set-off pleaded in a former suit wiU not be treated 
 as a matter adjudicated if it does not appear to have been put in evidence or allowed. 
 Garrett v. Johnson, 11 GUI. & J. 173; 35 Am. Dec. 272. But for the rulings and 
 practice on this subject in Virginia, see Ante, I 10, p. 41. 
 
§ 118 PLEAS TO THE PERSON. 393 
 
 Pleas to the Person. 
 
 § 118. A personal disability to sue exists in two classes of cases 
 in Virginia. First, where the party is an alien enemy.' Second, 
 where he is an idiot, lunatic, an infant without his committee, 
 guardian or next friend, or a married woman suing without her 
 husband.^ 
 
 The following other grounds of objection to the person, although 
 they may be set up by plea, are generally made by the answer of 
 the defendant : (1), That the plaintiff is not the person he pre- 
 tends to be ; (2), That the plaintifij or some one of the plaintiffs, 
 has no interest in the subject, or no right to institute a suit con- 
 cerning it ; (3), That the plaintiff has no right to call on the de- 
 fendant concerning the subject ; (4), That the defendant is not the 
 person he is alleged to be, or does not in truth sustain the character 
 he is alleged to bear ; (5), That the defendant has not that interest 
 in the subject which can make him liable to the demands of the 
 plaintiff.^ 
 
 A plea of the bankruptcy of the plaintiff is good where it is 
 made to appear that the subject-matter of the suit has, by the 
 bankruptcy or insolvency of the party, become vested in the 
 assignee.* 
 
 The discharge in bankruptcy of the defendant may be set up by 
 plea or answer, and constitutes a good defence,^ and the fact that 
 either plaintiff or defendant has filed his petition to be adjudicated 
 a bankrupt will at least stay proceedings so far as he is concerned.* 
 
 Pleas in Bar. 
 
 § 119. Pleas in bar have been classified^ as follows: (1), A 
 
 1 Minor's Institutes, Vol. 4, pp. 626, 627, 1156. 
 ' Ante, Ch. 3, ? 51. Except when otherwise provided by statute. 
 3 Minor's Institutes, Vol. 4, p. 1157; Story's Eq. PI., ? 722 to J 725; § 727 to 
 § 734; 1 Daniel's Chy. Pr. 630 to 632. 
 *Eobiiison's Practice, Vol. 5, Ch. 85, p. 905 et seq. 
 ^ Bump's Law and Practice in Bankruptcy, Ch. 10, p. 157 el seq. 
 6 Minor's Institutes, Vol. 4, p. 1160. 
 ' Daniel's Chy. Pr., p. 665 to 680. 
 
394 DEMUEEEE AND PLEAS. § 119 
 
 plea of an account stated ; (2), The plea of an award ; (3), The 
 plea of a release ; (4), The plea of a will or conveyance. 
 
 I. A Plea of an Account Stated applies to a bill filed for an 
 account which the plaintiff alleges to be open and unsettled, and 
 the plea must set forth what the balance was, and that the settle- 
 ment was final. A receipt in full for all demands will be no bar 
 to a bill for an account if suspicious circumstances appear, aud for 
 frauds, errors or mistakes the court will open a settled account ; 
 and in case of fraud this will be done even after a considerable 
 length of time has elapsed.^ Where, however, the bill is for a 
 general account, and the defendant sets forth a stated account, the 
 plaintiff, in order to open up the settled account, must amend his 
 bill ; for a stated account is prima facie a bar until the particular 
 errors in it are assigned ; and without such a specification of errors 
 the plaintiff' will not be permitted to prove them at the hearing, 
 even though the settlement of the account is expressed to be 
 " errors excepted." ^ 
 
 II. The Plea of an Award. — Upon the same ground as that 
 mentioned to a plea of an account stated, it has been held that an 
 award is a bar to a bill brought for any of the matters intended to 
 be bound by it ; and that if a bill is filed to set aside the award 
 as not being final, the specific objection to it must be stated upon 
 the bill.^ A plea may be filed to a bill to set aside an award and 
 open the account ; and it is not only good to the merits of the case, 
 but also to the discovery sought by the bill. Where the ground 
 of the complaint is fraud or partiality, if a discovery is sought,^ 
 such charge must not only be denied by the plea, but also by an 
 answer to support it, and so of any other matter in the bill im- 
 peaching the award.^ Unless the bill charges the arbitrators with 
 corruption or partiality they are not bound to answer as to their 
 
 1 Story' 3 Eq. PL, | 798 to J 802. 
 
 2 Daniel's Chy. Pr., Vol. 1, p. 371. 
 ^Ibid. 
 
 *Story'«Eq. PL, | 803. 
 
 5 Daniel's Chy. Pr., Vol. 1, p. 671. ' 
 
§ 119 PLEAS IN BAR. 395 
 
 motives in making the award, and they may simply plead to such 
 a bill in bar of the discovery sought.^ 
 
 An award duly made will be a good plea in bar to a bill for the 
 matters concluded by it ; but a covenant or agreement to refer 
 disputes to arbitration, as it cannot be made the subject of a bill 
 for a specific performance, cannot be pleaded in bar; but the 
 proper course is for the defendant, after appearance, but before 
 plea or answer, to apply to the court to stay the proceedings in 
 the suit.^ 
 
 III. The Plea of a Release may be filed in bar of the bill, 
 whether it was executed before or after it was filed.^ In such a 
 plea the defendant must set out the consideration upon which it 
 was made ; for every release must be founded on some considera- 
 tion, otherwise fraud Avill be presumed/ This is not necessary, 
 however, if the plea shows that the release was under seal ; and if 
 the demand was evidenced by a deed, it is said that the release 
 must be by deed also.° 
 
 Where fraud, surprise, inadequacy of consideration, or any other 
 objection to the release is charged by the bill, the plea must meet 
 these charges by averments in the body of it, and the plea must 
 also be supported by an answer denying the charges." 
 
 IV. The Plea of a Will or Conveyance. — A will may be pleaded 
 in bar to a bill brought on a ground of equity by an heir at law 
 against a devisee, to turn the devisee out of possession ; but it 
 cannot be pleaded to a bill by an heir at law praying for the pro- 
 
 1 Daniel's Chy. Pr., Vol. 1, p. 298-605. 
 
 = Daniel's Chy. Pr., Vol. 1, p. 671; Eobinson's Practice, Vol. 7, p. 488. 
 
 "Daniel's Chy. Pr, Vol. 1, p. 669. 
 
 * Daniel's Chy. Pr., Vol. 1, p. 669. 
 
 ' Minor's Institutes, Vol. 4, p. 1161, citing also the following authorities: Bac. 
 Abr. Belease, (A) 1; Ibid. (L); 2 Th. Co. Lit. 122, n (O 3); Eoosevelt's Lessee 
 V. Staekhouse, 1 Cow. (N. Y.) 122; Crawford v. Millspaugh, 13 Johns. (N. Y.) 
 87; Sigoumey i". Sibley, 21 Pick. (MajM.) 101; Steptoe v. Harvey, 7 Leigh, 501; 
 Preston v. Hull, 23 Grat. 600-616. In the last named case Judge Staples very 
 ably discusses the distinction between sealed and unsealed instruments, and the 
 execution by an agent of authority conferred on him under seal and by parol. 
 
 « Story' sEq. PI., 2 796. 
 
396 DEMUEEEE AND PLEAS. § 119 
 
 duction of documents, and an injunction to restrain the defendants 
 from setting up legal impediments in an action of ejectment com- 
 menced against them. In like manner, upon a bill filed by an 
 heir against a person claiming under a conveyance from the an- 
 cestor, the defendant may plead the conveyance in bar of the suit ; 
 and so where a bill was filed by persons claiming under a will to 
 set aside a conveyance made by the testator, on the ground of 
 fraud, before the date of his will, of the estate which the plaintiffs 
 claimed, the plea was allowed.^ 
 
 The plea must trace the titile of the party setting- up the will or 
 deed, and must show that it had a commencement anterior to that 
 of the plaintiff's title, aS shown by his bill.^ This plea avails to 
 purchasers for valuable consideration, without notice, and to settle- 
 ments in consideration of marriage.^ 
 
 A plea of this character must aver that the person who con- 
 veyed, gave a deed of trust,* or mortgaged to the defendant ; was 
 seised in fee, or pretended to be so seised, and was in possession, 
 if the conveyance purported an immediate transier of the posession 
 at the time he executed the purchase, mortgage, or deed of trust. 
 It must aver the consideration and actual payment of it ; a con- 
 sideration secured to be paid is not sufficient.^ 
 
 So it has been held that, to sustain such a plea, the party must 
 be a complete purchaser before notice ; that is, must have obtained 
 a conveyance, and paid the whole purchase money.* If, therefore, 
 either his purchase money remains unpaid, or he has not completed 
 his title by obtaining a conveyance before he has received notice, 
 the notice will affect him ; for if he received that notice before 
 both of those acts are perfected, he ought to stop until the equity 
 
 'Daniel's Chy. Pr., Vol. 1, p. 673. 
 
 ^Ibid., p. 673, 674. 
 
 'lUd., p. 675; Story's Eq. PL, § 807. 
 
 * Beverly v. Brooke el als, 2 Leigh, 425; Floyd, Trustee, v. Harding el als, 28 
 Grat. 411. 
 
 » Story's Eq. PI., § 805. 
 
 " Doswell V. Buchanan's Ex'ors, 3 Leigh, 365. See also Marshall et at v. Cross 
 et d, 26 Gratt. 679. 
 
§ 119 PLEAS IN BAR. 397 
 
 is enquired into, or he will be bound by it. Thus, although he 
 has paid every cent of his purchase money, and the hopeless in- 
 solvency of his vendor would prevent his ever recovering it back, 
 yet if he has not completed his title by getting a conveyance be- 
 fore his notice of the prior equity, he must stop, and will not be 
 permitted to go on to secure himself by obtaining the legal title 
 from the common vendor.^ But to avail himself of the benefit of 
 this plea, a party must in all cases hold a legal title, or he entitled 
 to call for .it^ in order to give him a full protection of his defence ; 
 for if his title be merely equitable, then he must yield to a legal 
 and equitable title in the adverse party, and a purchaser of an 
 equity is bound to take notice of and is bound by a prior equity, 
 the established rule between equities being that he who has the 
 prior equity in point of time is entitled to the like priority in 
 point of right ; ' and the purchaser of an equity takes it subject 
 to all prior equities.* 
 
 As a consequence to these principles of law, the plea or answer 
 must make it appear that the defendant was a complete purchaser 
 before notice ; ° that is, that before notice he had received a con- 
 veyance, and paid all his purchase money,'' and even though notice 
 
 ' Mutual Assurance Society v. Stone et ak, 3 Leigh, 218-236. 
 
 ''Leading Cas. in Eq., Vol. 2, Pt. 1, p. 36; Coleman v. Cooke, 6 Kand. 618; 
 WUliamson v. Gordon's Ex'ors, 5 Munf. 257; The Mutual Assurance Society v. 
 Stone, 3 Leigh, 218. The maxim is, that where equity is equal, the law will pre- 
 vail; and hence, where the first purchaser has not the legal title, and the subse- 
 quent one has paid his money, and though not having the legal title, has the best 
 right to call for it before he receives notice, he shall be entitled to priority, not- 
 withstanding he has not actually acquired such title. Minor's Institutes, Vol. 2, 
 p. 878. Of tiie effect of the Eegistry Laws, see Post, I 307. And for the rules of 
 constructive notice as compared with actual notice, see Post, J 209. 
 
 ' Vattier v. Hinde, 7 Peters' K. 252-271; Story's Eq. Jurisprudence, Ch. 1, § 64. 
 
 * Adams' Eq., 6th Am. ed., p. 340, note; Briscoe v. Ashby et ah, 24 Grat. 477; 
 Carter t'. Allen, 21 Grat. 241; Townville v. Naish, 3 P. Wms. 307; Minor's Insti- 
 tutes, Vol. 2, p. 203-877 et seq.; Vol. 4, p. 1162; Hoover v. Donnally, &c., 3 H. 
 & M. 316; Wilcox v. Calloway, 1 Wash. 41; ZoUman v. Moore et als, 21 Grat. 313; 
 Basset v. Nosworthy, Leading Cases in Eq. (ed. 1877), Vol. 2,. Pt. 1, p. 1 to 109. 
 
 6 Hoover v. Donnally, &c., 3 H. & M. 316; Korer Iron Co. v. Trout, 83 Va. 416. 
 
 « Wilcox V. Calloway, 1 Wash. 41. 
 
398 DEMURRER AND PLEAS. § 120 
 
 be not charged in the bill, it must be denied in the answer posi- 
 tively, and not evasively.' 
 
 The plea must state the deed of purchase, setting forth the dates, 
 parties and contents briefly, and the time of their execution. It 
 must aver that the defendant was seised, or pretended to be seised, 
 at the time he executed the conveyance. If the conveyance pleaded 
 be of an estate in possession, the plea must aver that the vendor 
 was in possession at the time of the execution of the conveyance ; 
 and if it be of a particular estate, and not in possession, it must 
 set out how the vendor became entitled to the reversion. The 
 plea must also distinctly aver that the consideration money men- 
 tioned in the deed was bona fide and truly paid ; and although the 
 amount of the consideration need not be stated, enough must be 
 shown to make it appear that the purchase was for a valuable con- 
 sideration, lu denying notice, too, it has been thought that the 
 defendant should deny every circumstance from which it could be 
 inferred.^ , 
 
 The general denial of all notice whatsoever includes construc- 
 tive as well as actual notice, and hence the better opinion seems to 
 be that it is not the office of a plea to deny particular facts of 
 notice, even if such particular facts are charged.^ It is laid down 
 generally in the text-books that this defence, of being a purchaser 
 for a valuable consideration without notice, must be made by plea, 
 and cannot be set up by answer ; such, however, is not the rule in 
 Virginia, for here it may be made by answer as well as by plea,* 
 and in the United States courts it is also expressly so provided.^ 
 
 The Plea of lAmitations. 
 
 § 120. The manner of objecting the bar of limitations to a claim 
 
 1 Tompkins «. Mitchell, 2 Eand. 428; Downmann v. Rust, &c., 6 Eand. 591; 
 Denning, &c. v. Smith, &c., 3 Johns. Chy. R. 345; Galatian v. Erwin, &c., 1 Hop. 
 Chy. R. 55 to 58; 1 Daniel's Chy. Pr. 678. 
 
 ^ Daniel's Chy. Pr., Vol. 1, p. 676 to 680. 
 
 'Story's Eq. PL, | 806. 
 
 * Donnell et ah v. King's Heirs, 7 Leigh, 393. 
 
 * See this subject fully discussed, Post, I 124, Div. 3, note. 
 
§ 120 THE PLEA OP LIMITATIONS. 399 
 
 set up in chancery has been already fully discussed.; ' its further 
 consideration will be confined to the nature of the plea. 
 
 When this defence is set up by plea instead of by answer, which 
 is the usual mode, the averments should be all that are necessary 
 to bring the case within the statute, and to avoid any equity which 
 may be set up against the bar created by it.^ Thus, where the bill 
 charges fraud, and that it was not discovered^ until within five 
 years before the filing of the bill,^ the plea must deny the fraud, 
 or aver, that the fraud, if any, was discovered within five years.* 
 So where the demand is of any thing executory, as a note for the 
 payment of an annuity, or of money at a distant period, or by in- 
 stalments, the defendant must aver that the cause of action has not 
 occurred within the limited number of years.' No particular form 
 of words is necessary in making the averments, provided those 
 made use of are suf&cient to bring the case within the statute ; 
 therefore, when a plea, instead of averring that the money in ques- 
 tion was not received within the last six years, averred that no 
 cause of action occurred within that time, it Avas held sufiicient.^ 
 
 The statute of frauds,'' or of parol agreements,* the various stat^ 
 utes for the limitation of the time within which actions or suits at 
 law may be brought, the statute barring the opening of accounts, 
 
 ' Ante, Ch. 2, § 21; this chapter, § 112, Div. 6. Before a, party can have the 
 benefit of the bar of the statute of limitations, he must plead it or in some manner 
 indicate his intention to claim the benefit of it, or otherwise it will be considered 
 by the court as waived. Smith v. Brown, W. Va. ; 30 S. E. B. 160; Seborn v. 
 Beckwith, 30 W. Va. 774. 
 
 2 Daniel's Chy.Pr., Vol. 1, p. 637. 
 
 ^ Brown v. Comity of Buena Vista, 5 Otto, 157; SuUivan v. Portland & Kennebec 
 K. B. Co., 4 Otto, 806. 
 
 * Minor's Institutes, Vol. 4, p. 1161. 
 
 5 Daniel's Chy. Pr., Vol. 1, p. 654. 
 
 6 Daniel's Chy. Pr., Vol. 1, p. 654. 
 
 ' Ibid., p. 655. The defence of the statute of frauds must be specially insisted 
 on in the pleadings in a suit in equity or it will be deemed waived, and a general 
 replication waives the benefit of the statute of frauds as a defence against an agree- 
 ment set up in the answer. Tarleton v. Vietes, 1 GUman, 470; 41 Am. Dec. 193; 
 note, p. 196. 
 
 s Minor's Institutes, Vol. 4, p. 1161; Code 1873, Ch. 140, i 1. 
 
400 DEMDRREE AND PLEAS. § 121 
 
 and, all other matters of limitation, may, subject to the exceptions 
 thereto and the application of these statutes and rules to proceed- 
 ings in courts of equity, be set up by pleas ; ^ although, as we have 
 before seen, it is much more usual to rely on this defence by an- 
 swer,^ than by plea, especially as the same strictness is not required 
 in an answer to a bill in equity where the statute of limitations is 
 relied on, as in a plea.^ 
 
 Plea of a Former Judgment or Decree. 
 
 § 121. A judgment,* decree or order, by which the rights of 
 the parties have been determined in another bill, or suit for the 
 same matter dismissed, may be pleaded to a new bill ; and this, 
 even if the party filmg the new bill was an infant at the time of 
 the former decree ; for an enrolled decree can only be altered upon 
 a bill of review,' or in the way provided by statute.^ 
 
 To constitute a bar, however, the decree or judgment must have 
 been rendered in a suit between the same parties or their privies, 
 and the point of controversy must be the same in both cases, and 
 must have been finally '' determined on its merits by a court of 
 competent jurisdiction, and in a proceeding where the judgment 
 binds the person, and does not operate merely in rem? 
 
 If the first suit was dismissed for defects in the pleadings or 
 parties, or a misconception of the form of proceeding, or the want 
 of jurisdiction, or because of a temporary disability of the plaintiff 
 to sue, or for a technical defect, or because the debt was not yet 
 
 ' Daniel's Chy. Pr., Vol. 1, p. 639 to 655. 
 
 2 Minor's Institutes, Vol. 4, p. 1162. 
 
 n Daniel's Chy. Pr., p. 714. 
 
 *Ihid., p. 662., 
 
 ^ Daniel's Chy. Pr., Vol. 1, p. 659. 
 
 « Anle, Ch. 2, I 33. 
 
 'Or at least afterwards made final. Daniel's Chy. Pr., Vol. 1, p. 660. 
 
 8 Robinson's Pr., Vol. 7, p. 1 to 472; Western M. & M. Co. v. Va. Caunel Coal 
 Co. et ah, 10 W. Va. 250; Lawrence v. Hunt, 10 Wend. 80; 25 Am. Deo. 539; 
 Ibid. 542, note; 24 Am. Dec. 615, note; Tarter v. Wilson, 95 Va. 19; 27 S, E, K, 
 818; Harrison t). Wallton, 95 Va. 721, 
 
§ 121 PLEA OF A FOEMBE JUDGMENT OE DBCEEB. 401 
 
 due/ or was disposed of on any ground that did not go to the 
 merits, it will not prove a bar to the new suit.^ 
 
 Not only must all these requisites exist, but they must appear 
 upon the face of the record, or must be shown by extrinsic evi- 
 dence ;' and if there be any uncertainty on this head in the record, as 
 for example, if it appear that several distinct matters may have heen 
 litigated, upon one or more of which the judgment was rendered, 
 the better opinion seems to be that the whole matter of the action 
 will be at large and open to a new contention unless the uncer- 
 tainty be removed by extrinsic evidence, showing the precise point 
 involved and determined.* Thus where there was a bill and an 
 
 'Greenleaf on Evidence, Vol. 1, ? 529-530; Smith's L. Cas., Vol. 2, p. 808; 
 Kobinson's Pr., Vol. 7, p. 190; Cleaton v. Chambliss, 6 Band. 86; Weaver v. 
 Vowles, 2 Eob. 461. 
 
 ^ Hughes V. United States, 4 Wall. 236. See also Minor's Institutes, Vol. 4, Pt. 
 1, p. 719. See Ante, H 113, 117, and 1 Bart. Law Pr., p. 533, et seq., and cases 
 cited in the notes. Mathews v. Jenkins, 80 Va. 463; Eogers et al v. Eogers, 37 W. 
 Va. 407; Blackwell' s Adm' r i). Bragg, Trustee, 83 Va. 232; Seamster ct oi d. Black- 
 stock ei al, 83 Va. 232; Hurt v.. West's Adm'r, 87 Va. 78; Diehl v. Marchant, Id. 
 447; Foster v. City of Manchester, 89 Va. 92; Burner v. Havener, 34 W. Va. 774; 
 Bradley v. Zehmer, 82 Va. 685; Corrothers v. Sargent, 20 W. Va. 351; Eenick v. 
 Ludington ei al, 20 W. Va. 371; Bland v. Stewart 35 W. Va. 518; McCoy v. Mc- 
 Coy, 29 W. Va. 794. Dismissal on the merits or even by consent is conclusive 
 against a new suit. Pelton v. Mott, 11 Vt. 148; 34 Am. Deo. 678. Decree in 
 Indiana setting aside a deed for insanity held conclusive in Illinois as to another 
 deed made at the same time. Hanna v. Bead, 101 111. 596; 40 Am. E. 608. See 
 also King v. Chase, 15 N. H. 9; 41 Am. Deo. 675; note, p. 681 to 683. Judg- 
 ment in action for breach of promise of marriage held no bar to an action for dam- 
 ages for seduction imder the same promise of marriage. Ireland v. Emmerson, 93 
 Ind. 1 ; 47 Am. E. 364. When notes are given for installments under such cir- 
 cumstances that a defence valid against one is necessarily valid against the other, a 
 judgment for the defendant in an action at law on one was held to bar action on the 
 others. Cleveland v. Cruiston, 93 Ind. 31; 47 Am. E. 367. 
 
 ' If, indeed, the fact that a decree was rendered on the merits can be permitted 
 to be shown by extrinsic evidence (Chrisman's Ex'x «. Harman et al, 29 Grat. 501), 
 which, however, seems to have been held in Eussell v. Place, 4 Otto, 606, and 
 Campbell v. Eankin, 9 Otto, 263. See also as to parol evidence to prove the 
 identity of the subject-matter involved, Kelley v. Board of Public Works, 25 Grat. 
 761. 
 
 * Eussell V. Place, 94 U. S. E. (4 Otto) 606. In Withers' Adm'r v. Sims et ah, 
 80 Va. 651, it was held that parol evidence was admissible to show what was actu- 
 ally in issue and determined by a former suit when a decree or judgment is relied 
 
 26 
 
402 DEMUEEER AND PLEAS. § 122 
 
 answer containing six grounds of demurrer, and the bill was dis- 
 missed without mention in the decree of the demurrer as dis- 
 tinguished from the answer, and without stating the ground of 
 dismissal, it was held that the decree of dismissal could not bar 
 the new suit.^ 
 
 The plea must not merely show that the bill was dismissed, but 
 it must further be plead that the same matter in dispute in the 
 subsequent suit was res judicata in the first ; ^ and this has been 
 regarded not merely as a technical rule, but as one of substance.' 
 
 Pleas to Cross Bills and Bills of Review. 
 
 § 122. Pleas to cross bills are like those to original bills, except 
 that objections to the jurisdiction and to the person, unless the 
 cross bill be filed by some one incapable of instituting a suit, as 
 
 on as estoppel and the pleadings and proceedings in the former suit leave it doubt- 
 ful what was the issue or state of facts whereon the judgment or decree was ren- 
 dered. This was also held in King v. Chase, 15 N. H. 9; 41 Am. Dec. 675; note, 
 p. 683. In Freeman on Judgments, | 273, it is said that the rule of admitting 
 evidence aliunde in such cases is well established. There seems never to have been 
 any reason to doubt that the identity of the subject involved in the former suit 
 might be proven by evidence aliunde (AUebarger v. Coakley el ah, 75 Va. 628), 
 but the author only yields to authority his doubt of the rule as it is stated in the 
 text. See the cases cited in the notes to p. 202, Vol. 21, Am. & Eng. Encyc. of 
 Law. 
 
 ' EusseU V. Place, 4 Otto, 606; Chrisman's Ei'x v. Harman et al, 29 Grat. 501; 
 Foster, &c. v. Busteed, 100 Mass. 412; Eobinson's Practice, Vol. 7, p. 229; but 
 see Durant v. Essex Co., 7 Wall. 109; House v. Mullen, 22 Wall. 46. 
 
 ^Eobinson's Practice, Vol. 7, p. 225. 
 
 ^Ibid.; 1 Daniel's Chy. Pr., p. 661; Moss v. Anglo-Egyptian Nav. Co., Law 
 E. 1, Ch. App. 115. Further pleas in bar of matters of record maybe: (1), Fine; 
 (2), Eecovery; (3), Judgment at law or sentence of some other court. 1 Daniel's 
 Chy. Pr., p. 662 to 665. Pleas in bar of matters in pais only, are principally: 
 (1), A stated account; (2), A release (Eobinson's Practice, Vol. 7, p. 500); (3), 
 An award (Eobinson's Practice, Vol. 7, p. 482; Tate v. Vance, 27 Grat. 571); 
 (4), An agreement (Eobinson's Practice, Vol. 7, p. 526); (5), A title founded 
 either on adverse possession, or on a will or conveyance, or other instrument affect- 
 ing the right of the parties; (6), A purchase for valuable consideration without 
 notice of the plaintiff's title. 1 Daniel's Chy. Pr., p. 665 to 680. This defence 
 in Virginia may be set up as well by answer as by plea. Donnell et al v. King's 
 Heirs, &c., 7 Leigh, 393. But see 1 Daniel's Chy. Pr., p. 721, note. 
 
§ 122 PLEAS TO CROSS BILLS AND BILLS OF REVIEW. 403 
 
 an infant, idiot, etc., cannot be made to a proceeding by cross bill.'^ 
 To a bill of review for error apparent on the face, it is said to be a 
 usual defence to plead the decree, although this is properly ground 
 of demurrer; but where there is any matter beyond the decree, 
 such as length of time, a purchase for valuable consideration with- 
 out notice, or other extrinsic matter, it must be pleaded.^ While 
 this seems to be the general rule, it is also thought that where the 
 objection is length of time, if the plaintiff states no exception, 
 such as infancy, coverture, etc., to take him out of the rule, the' 
 objection of length of time may be taken by demurrer as well as 
 by plea ; ' and the same has been held in Virginia to be true of the 
 defence of a purchaser for valuable consideration without notice.* 
 
 1 Minor's Inst., Vol. 4, p. 1168; Mitford's Eq. PI. 230; Stoiys Eq. PL, | 628. 
 
 ^ Minor's Institutes, Vol. 4, p. 1168. 
 
 ' Daniel's Chy. Pr., Vol. 2, p. 1583. See also Ante, I 21. 
 
 *Donnell v. King's Heirs, &c., 7 Leigh, 392. 
 
CHAPTER VII. 
 
 ANSWERS IN CHANCERY. 
 
 123. When an Answer may be Filed. 
 
 124. Frame and Nature of an An- 
 
 swer. 
 
 125. Exceptions to an Answer. 
 
 126. The General Effect of an An- 
 
 i 127. The Effect of an Answer in Spe- 
 cial Instances. 
 
 i 128. The Effect of Striking Out an 
 Answer. 
 
 ; 129. The Issue upon an Answer. 
 130. Amendment of an Answer. 
 
 When an Answer may be Filed. 
 
 § 123. The statute of Virginia^ provides that at any time before 
 final decree a defendant may be allowed to file his answer, but a 
 cause shall not be sent to the rules or continued because an answer 
 is filed in it unless good cause be shown therefor ; but the plaintiff 
 may, to a proper bill for discovery, insist upon and require an 
 answer to be filed, and the court will enforce it,^ although a party 
 may, nevertheless, answer and show good cause therein why he 
 should not respond to the requirements of the bill, whereupon he 
 will be excused from answering fiirther.^ 
 
 When a demurrer is overruled, the defendant may, at the dis- 
 cretion of the court, be required to answer the bill forthwith, and 
 in default thereof the bill may be taken for confessed, and the 
 matter thereof decreed ; * or the plaintiff may have an attachment 
 against such defendant, or an order for him to be brought in to 
 answer interrogatories.' 
 
 ' ? 3275; Code W. Va., Ch. 125, § 53. As to filing an answer at rules, see Ante, 
 Ch. 4, § 84. As to filing an answer to an injunction bill offered in vacation, see 
 Post, I 132. 
 
 ^Story^sEq. PI., §845. 
 
 ' Northwestern Bank v. Nelson, 1 Gratt. 110. 
 
 * Zell Guano Co. v. Heatherly, 38 W. Va. 409. 
 
 5 1 3273; Code W. Va., Ch. 125, § 32. For changes in the statute in this re- 
 spect, see Beynolds v. The Bank of Va. et ah, 6 Grat. 182; Brent v. Washington's 
 Adm'r, 18 Grat. 540. 
 
§ 123 WHEN AN ANSWER MAY BE PILED. 405 
 
 Although the defendant is in default, he may yet be permitted 
 to file any proper answer at any time before a final decree ; ^ but 
 the trial of the cause is not to be subsequently delayed unless for 
 good cause shown.^ 
 
 Where the suit was to set aside a deed of conveyance by the 
 'husband to his wife, and to 'subject the land to the payment of the 
 husband's debts, and the suit was allowed to go on for a very con- 
 siderable period, taking accounts, etc., without an answer, upon 
 application being made by the married woman to file her answer, 
 it was allowed ; but the court below refused to delay, the cause on 
 that account, and went on to decree that the conveyances be set 
 aside and the property sold. Upon appeal the case was re- 
 versed, the court of appeals stating that the answer set up a case, 
 which, if true, would constitute a good defence to the bill, and that 
 the married woman alleged further, as a reason why her defence 
 was not made at an earlier day, that her counsel had prepared for 
 her an answer supported by incontrovertible documentary evi- 
 dence sustaining her defence ; that the answer miscarried, and did 
 not reach her, so that the cause had been submitted at a previous 
 term of the court before her answer could be filed ; that she was 
 a married woman, unaccustomed to business, and knew nothing ot 
 the importance of appearing in the cause to protect herself and 
 her children. Under all these circumstances the court of appeals 
 thought that the trial of the cause should have been delayed, and 
 time allowed for her to support her answer by proofs 
 
 The provision of the statute that a defendant may be allowed to 
 file his answer at any time before final decree,* has been construed 
 to mean must ° be so allowed when he demands it ; and where the 
 court had received the papers of a cause submitted to it, had ex- 
 
 ^ Aa to -what is a final decree, see Post, § 234. 
 
 '^ Bowles V. Woodson, 6 Grat. 78; Tracewell a Boggs et al, 14 W. Va. 254. 
 ^ Strother et ah v. Boyce el als, unreported. See also Ogden et al v. Brown et al, 
 83 Va. 670. 
 * I 3275. He cannot file it after. Currie v. Davidson et als, 6 W. Va. 465. 
 ' Welch V. Solenberger, 85 Va. 444. 
 
406 ANSWERS IN CHANCEEY. § 124 
 
 amined them, had settled the terms of the decree, and a decree had 
 been prepared and considered by the court, and had been directed 
 to be entered in the order-book, but before it was so entered the 
 defendant asked leave to file his answer, it was held that he was 
 entitled to file it.^ In this case the court found it unnecessary to 
 pass upon what would have been the effect of such an application 
 had it been made at the same term, and after the decree was actu- 
 ally entered in the order-book ; or upon such an application made 
 to a subsequent term ; and although the syllabus of the case speaks 
 of that decree as interlocutory, the text is not full enough to de- 
 termine whether it was an interlocutory or a final decree. 
 
 Frame and Nature of an Answer. 
 
 § 1 24. The frame of an answer has for convenience of consid- 
 eration been divided,^ as we shall treat it, as follows : 1, The 
 caption ; 2, The demurrer and reservation of exceptions to the 
 bill ; 3, A distinct and categorical answer to the bill ; 4, A gen- 
 eral" traverse or denial of the averments of the bill; and 5, The 
 conclusion. 
 
 I. The Caption shows whose answer it is, whose bill it answered, 
 and in what court the bill has been exhibited. It shows also in 
 what character the respondent answers, and if he is sued in two 
 characters it ought to appear that he answers in both.^ So if the 
 suit be against several executors or partners, if the answer is de- 
 signed to be a joint answer for them all, it should be so stated. 
 The answer filed by one executor will not be considered that of 
 his co-executors, notwithstanding a statement prefixed in the record 
 that the defendants appeared by counsel and filed their answer ; * 
 but where one partner answered for both, styling himself sole 
 
 ' Bean v. Simmons, 9 Grat. 389. See also Wyatt v. Thompson et al, 10 W. Va. 
 645. 
 
 2 Minor's Institutes, Vol. 4, p. 1182; Mitf. Eq. PI. 249; Story's Eq. PI. § 869- 
 870; Sands' Suit in Equity, 389. 
 
 ' Kinney's Ex'ors and Devisees v. Harney, &c., 2 Leigh, 70. 
 
 * Chinn v. Heale, 1 Munf. 63. 
 
§ 124 FRAME AND 'NATURE OF AN ANSWER. 407 
 
 representative of the firm, and the complainant entered a general 
 replication to the answer, and permitted the cause to proceed to a 
 hearing without taking any steps to compel an answer from the 
 other parties, it was held that the want of an answer from such 
 other parties afforded no ground for remanding the cause to the 
 court of chancery.^ 
 
 Two or more persons having identical interests may join in the 
 same answer, and where husband and wife are sued as co-defend- 
 ants, neither, as a rule, can answer separately from the other with- 
 out leave of the court,^ While this is the general rule, yet if the 
 answer of a feme covert be put in separately without an order of 
 the court, and it be a fair and honest answer, and deliberately put 
 in with the consent of the husband, and the plaiutiff accepts it and 
 replies to it, the court will not on the motion of the wife or her 
 executor set it aside.^ The court will, moreover, compel a married 
 woman to answer separately when the demand is against her sep- 
 arate estate, and the husband is only named for conformity ; and 
 so she may answer separately where the husband has put in his 
 separate answer under an order to do so ; or where she claims an 
 interest adverse to him ; or is living separate from her husband ; 
 or he is mentally incompetent to answer ; or she disapproves of 
 the defence he intends to make.^ 
 
 When the wife is sued with the husband, the same general reasons 
 mutatis mutandis that permit her to file a separate answer will au- 
 thorize him to do the same.^ 
 
 The separate answer of a married woman is by her next friend, 
 and where she is an infant her answer cannot be taken, either 
 jointly or separately, until a guardian is assigned to her.^ The 
 
 iFreelands v. Eoyal, &c., 2 H. & M. 575. 
 ^ Ferine v. Swaine, &c. , 1 Johns. Chy. R. 24. 
 2 Daniel's Cliy. Pr., Vol. 1, p. 182. 
 
 * Daniel's Chy. Pr., Vol. 1, p. 181. 
 5 Ibid., 180, 181. 
 
 * Ibid. , 754. But she answers in person as to her separate estate. 
 
408 ANSWERS IN CHANCBEY. § 124 
 
 answer of an infant is by guardian ad litem,^ and that of an idiot 
 or lunatic by his committee or guardian ad litem.^ A foreigner may 
 answer in his own language on oath, in which case an interpreter 
 being sworn may make a translation, which, with his oath annexed, 
 may be also filed and read in the cause.^ 
 
 II. The Demurrer and Reservation of Exceptions to the Bill. — 
 Instead of a separate demurrer, it is permitted, and is the common 
 practice in Virginia, for the answer to contain the demurrer in 
 general terms, without assigning any of the causes therefor.'' 
 
 The reservation of exceptions is usually inserted in the answer, 
 but it is really superfluous, since without it it is a rule that those 
 allegations in the bill which are not noticed are not to be con- 
 sidered as admitted.* 
 
 III. A Distinet and Categorical Answer to the Bill. — To a bill 
 of discovery ° the plaintifl" is entitled to a full answer to all the 
 charges of the bill which are not covered by a demurrer, plea, or 
 disclaimer ; '' or unless by answer the defendant shows that he is 
 not bound to make the disclosures called for by the bill.' To all 
 
 ' It should be the answer of the guardian ad litem for the infant, but where it was in 
 form the answer of the infant by guardian ad litem, but the opinions, statements, 
 and responses of the guardian were given, the answer was held to be sufficiently that 
 of the guardian. Durrett v. Davis, 24 Grat. 302. 
 
 ' Minor's Institutes, Vol. 4, p. 1184. 
 
 "Daniel's Chy. Pr., Vol> 2, p. 1103. 
 
 *^nte, Ch. 6, § 1; Dunn v. Dunn et ah, 26 Grat. 296; Jones' Ex' or v. Clark et 
 oh, 25 Grat. 675; Basset's Adm'r v. Cunningham's Adm'r, 7 Leigh, 402. 
 
 ' Minor's Institutes, Vol. 4, p. 1183; Mitf. Ex. PI. 249; Cooper's Eq. PI. 323; 
 Coleman v. Lyne, 4 Rand. 454; Story's Eq. PI., ? 870. But see Code W. Va., 
 Ch. 125, I 36; Grhnstone v. Carter, 3 Paige, 421. 
 
 ^Aide, Ch. 5, § 102; Story's Eq. PL, I 846-849. 
 
 ' Baker t;. Morris' Adm'r, 10 Leigh, 307. 
 
 " N. W. Bank v. Nelson, 1 Grat. 111. The general rule of pleading in chancery 
 is, that the defendant cannot by answer excuse himself from answering; some of the 
 exceptions noted are, where the answer would criminate the defendant, or subject 
 him to pains and penalties; where it would violate professional confidence, or where 
 the matters of the bill are purely scandalous, immaterial, or impertinent; and the 
 reason given for the rule is the well settled principle of chancery pleading, that 
 he who answers at all must answer fully. Daniel's Chy. Pr., Vol. 1, p. 720-721, 
 note. Such cannot be said to the general rule in Virginia, where the practice 
 
§ 124 FRAME AND NATUEE OF AN ANSWER. 409 
 
 bills, whether for discovery or not, the defendant is bound to 
 answer fully and directly to all the charges thereof, except to such 
 as he is excused from answering by plea or demurrer, or such as 
 having failed to answer on exception taken thereto, he is sustained 
 by the court in his refusal to answer. 
 
 The answer should controvert or deny the facts stated in the 
 bill, admit their truth, or deny some allegations and admit others, 
 as the case may be ; or without admitting or denying such matters 
 as are not within respondent's personal knowledge, he may call for 
 proof of them ; or the answer may go on to state other facts to 
 show the rights of the defendant.^ 
 
 The answer must state facts and not argument. It is'uot enough 
 that it contains a general denial of the matter charged, but there 
 must be a certain, positive answer ^ as far as possible to the sifting 
 enquiries of the bill.* Wherever there are particular or precise 
 charges, they must be answered particularly and precisely, without 
 evasion and not in a general manner, though the general answer 
 may amount to a full denial of the charges.^ As a rule, if a fact 
 
 rather is to set up all matters of defence by answer than by plea. Minor's Inst., 
 Vol. 4, p. 1176. The defence of being a bona fide purchaser for a valuable con- 
 sideration without notice has been held to be admissible only by plea, and that it 
 cannot be set up by answer (Daniel's Chy. Pr., Vol. 1, p. 721, note; Story's Eq. 
 PI., i 847); but as we have already seen {Ante, this chapter, § 119) this is not 
 true in Virginia. Donnell et ats v. King's Heirs, 7 Leigh, 393. This distinction 
 has sometimes been taken: that if a purchaser without notice neglects to protect 
 himself by plea he may defend himself by answer; but if he submits to answer, 
 he must,, according to the general rule, answer fuUy, although he might by de- 
 murrer or plea have protected himself. Leading Cases in Equity, Vol. 2, Pt. 1, 
 p. 26. See also on the subject of defending by plea or answer, 1 Daniel's Chy. 
 Pr., pp. 346, 714, 716, 722; Philips, &c. v. Prevost, 4 Johns. Chy. E. 205; Meth- 
 odist Church V. Jacques, &c., 1 John. Chy. Pr. 65; Wilcox v. Calloway, 1 Wash. 
 41; Jerrard v. Saunders, 2 Ves. Jr. 454 and note (a); Cuyler, &c. v. Bogert, &c., 
 3 Paige, 186; Frost, &c. v. Beekman, 1 Johns. Chy. K. 300. In the United 
 States courts, by a rule of the supreme court, the defendant may, in all cases, by 
 answer insist upon all matters of defence in lieu of or to the merits of the bill of 
 which he might avail himself by a plea in bar. 1 Abb. U. S. Practice, 139. 
 
 1 Story's Eq. PL, § 849. ' Slater v. Maxwell, 6 Wall. 268. 
 
 » Story's Eq. PI., §852. 
 
 * I bid. A denial in an answer of all knowledge concerning facts alleged in the 
 bill is sufficient to put those facts in issue. Eonaldu Bank, 90 Va. 813. 
 
410 ANSWERS IN CHANCEEY. § 124 
 
 is charged which is in the defendant's own knowledge, he must 
 answer positively, and not to his remembrance or belief; but as to 
 facts not within his own knowledge, he must answer as to his in- 
 formation and belief, and not to his information only, without 
 stating any belief either one way or the other.' 
 
 The defendant is not bound to answer to immaterial charges,^ 
 nor to any matters of the bill except such as concern him person- 
 ally ; but if he does answer a part of the circumstances, or state 
 a part of a conversation, he will be compelled to state the whole.^ 
 When documents are called for in the bill the plaintiff is entitled 
 to have produced only such as are in the defendant's possession or 
 control,* and pertain to the plaintiff's case on the title made by 
 his bill/ 
 
 The necessity for producing documents arises especially in the 
 case of trustees and others who are called on by the bill to account, 
 in which cases they are bound to give the best account they can by 
 their answers, and to afford the plaintiff a sufficient opportunity 
 to inspect the books, papers, etc' 
 
 It is for the court to determine whether the documents do or do 
 not relate to the plaintiff's title, and as that may frequently only 
 be done after an inspection of them, their production may be neces- 
 sary for that purpose. 
 
 IV. A General Traverse or Denial of the Averments of the Bill. — 
 Although this is not commonly regarded in practice as a distinct 
 division in the frame of an answer,^ yet it is thought that every 
 answer should contain such a general clause as covering the pos- 
 
 > Story's Eq. PL, i 854; Daniel's Chy. Pr., Vol. 1, p. 722. 
 
 ' Ibid., p. 719. 
 
 ' Morrison's Ex'ors v. Grubb, 23 Grat. 342. 
 
 * Story' sEq. PI., § 857. 
 
 5 Story's Eq. PI., § 858-859. The statute (U 3370, 3371, Code W. Va., Ch. 
 130, ii 26, 27) provides a process for the production of books, papers, etc., and 
 when such is the case the courts discourage exceptions to the answer on the ground 
 that they are not produced; 1 Daniel's Chy. Pr., p. 485, note. 
 
 « 1 Daniel's Chy. Pr., p. 724^725. 
 
 ' Minor's Institutes, Vol. 4, Pt. 2, p. 1183. 
 
§ 124 FRAME AND NATURE OF AN ANSWER. 411 
 
 sible failure to do what should always properly be done, to tra- 
 verse or deny directly and distinctly each separate charge of the 
 bill.^ 
 
 V. The Conclusion. — This simply prays that the respondent 
 shall be hence dismissed with his proper costs/ and it is then 
 signed, although the signature of the respondent may, under 
 peculiar circumstances, causing delay or trouble, be dispensed with 
 by an order of the court.' The answer should also be signed by 
 the defendant's counsel.* 
 
 When the answer is put in by a guardian or committee, his 
 signature is enough without that of the infant or lunatic ; and 
 when a guardian is also a defendant in his own right, one signa- 
 ture is enough.' "When a corporation answers it should be signed 
 by the principal officer,^ and the seal of the corporation must be 
 affixed.'' 
 
 The answer must also be sworn to, unless the plaintiff dispenses 
 with the oath ; * or unless it is the merely formal answer of a 
 , guardian ad litem ; ' but where the bill is for the sale of the lands 
 
 ^ 1 Daniel's Chy. Pr., p. 726. The effect of a denial in an answer is to put the 
 plaintiff on satisfactory proof of the aHegatfons denied. Bronson v. Vaugh, W. 
 Va. ; 29 S. E. E. 1022. 
 
 ^ Sands' Suit iu Eq. 390. 
 
 'Minor's Institutes, Vol. 4, Pt. 2, p. 1185; Story's Eq. PI., I 875. 
 
 * Daniel's Chy. Pr., Vol. 1, p. 733. 
 
 5 Daniel's Chy. Pr., Vol. 1, p. 733. 
 
 'Ibid., note. 
 
 'Baltimore and Ohio E. E. Co. v. Gallahue's Adm'r, 12 Grat. 664. 
 
 ' Story's Eq. PI., § 874. It was said that to dispense with the oath there should 
 be an order of court (Minor's Institutes, Vol. 4, Pt. 2, p. 1184), but this is not 
 the common practice in Virginia, the form of obtaining the order of court being 
 commonly omitted. See also Billingslea v. Gilbert, 1 Bland. 566. Now the stat- 
 ute in Virginia (§ 3281) dispenses with the oath and the effect of an answer to a 
 bill when the oath is expressly waived by the bill; but if the biU does not waive 
 the oath and a sworn answer is filed its effect cannot be dispensed with by filing an 
 amended bill waiving it. Throckmorton v. Throckmorton, 86 Va. 770. In West 
 Virginia if the plaintiff desires the defendant to answer the bill on oath, he must 
 verify his biU by affidavit; If the bill be not verified and yet the answer be sworn 
 to it will be entitled to no more weight than if it had not been verified. Code W. 
 Va., Ch. 125, I 38. 
 
 » Minor's Institutes, Vol. 4, Pt. 2, p. 1190. 
 
412 ANSWERS IN CHANCERY. § 124 
 
 of persons under disabilities, the answer of the guardian ad litem 
 must also be on oath.^ 
 
 A joint answer ought to be sworn to by all the parties to it ; but 
 if that be not done, and a general replication thereto be iiled, and 
 no exception taken, it will be a sufficient foundation for a decree 
 if sworn to by only one of the parties.^ Persons having conscien- 
 tious scruples against taking an oath may put in their answer by 
 affirmation ; ^ and the manner of taking the oath shall be accord- 
 ing to the religion of the person swearing.* 
 
 Corporations put in their answers without oath, unless some 
 officer or member of the corporation is made a party to the suit." 
 
 The affidavit is sufficient if the affiant swear that he believes the 
 matter sworn to to be true ; * and the oath or affirmation may be 
 administered by any officer in the State authorized to administer 
 oaths, and who in the affidavit states his authority, or has it other- 
 wise proved ; '^ or it may be made before the clerk of the court 
 where the answer is to be filed.' If the oath or affirmation be 
 taken out of the State, it may be administered by any officer of 
 another State or country authorized by its laws to administer an 
 oath, and it shall be deemed duly authenticated if it be subscribed 
 by such officer, and there be annexed a certificate of the clerk or 
 other officer of a court of record of such State or country, under 
 an official seal, verifying the genuineness of the signature of the 
 first-mentioned officer, and his authority to administer an oath.' 
 
 1 ? 2618; Code W.Va., Ch. 83, § 3; Durrett ji. Davis, Guaj-dian, &c., 24Grat. 310. 
 
 'Minor's Institutes, Vol. 4, Pt. 2, p. 1182. 
 
 » ? 176 ; Code W. Va., Ch. 13, I 11. 
 
 n Daniel's Chy. Pr., p. 735. 
 
 ^Ibid.; Baltimore & Ohio K. E. Co. v. The City of Wheeling, 13 Grat. 62; 
 Teter v. W. Va. C. & K. Ky. Co., 35 W. Va. 435. 
 
 « I 3282; Code W. Va., Ch. 125, § 42. The answer may be sworn to by one 
 who is incompetent to give evidence, or is incapable of making oath. Salmon v. 
 aaggett, 3 Bland. 125. 
 
 'For lack of this proof an answer was excluded as evidence. Sitlingtons v. 
 Brown et ah, 7 Leigh, 271. 
 » I 3282; Code W. Va., Ch. 130, § 31. 
 
 ^ Ibid., Ch. 12, ? 3. As to the necessity for the answer being under oath in 
 West Virginia, see Code, Ch. 125, 2 38. 
 
§ 124 FEAME AND NATURE OF AN ANSWER. 413 
 
 When filed in the United States courts, the answer may be sworn 
 to before any justice or judge of any court of the United States, 
 or before any commissioner appointed by any circuit court to take 
 testimony or depositions, or before any master in chancery ap- 
 pointed by any circuit court, or before any judge of any court of 
 a State or territory, or before any notary public.^ 
 
 Such is the general frame of an answer in chancery ; a few 
 words as to its nature will explain more fiiUy what has already 
 been said. 
 
 We have seen that if to answer would subject the respondent 
 to pains or penalties,^ or would disclose a professional secret,' he 
 need not answer, and while these and other defences may be set 
 up by demurrer or plea, they may be, and usually are, also claimed 
 in the answer as excuses for not answering, whereupon the pro- 
 priety of compelling the respondent to do so may be raised and 
 determined by exceptions.'' 
 
 The defendant need not answer to facts as to which he is inter- 
 rogated, but which are not charged or stated in the bill ; although, 
 if he does answer, and the plaintiff replies, the facts thus set forth 
 are sometimes'* properly in issue. But, of course, a very general 
 charge may be a sufficient foundation on which to rest a great 
 number of specific interrogatories, all of which must be fully re- 
 sponded to. Hence, when an account is demanded, if the bill 
 avers such relations of business with the defendant as justify the 
 requiring an account, the interrogatories may be as numerous and 
 as special as the plaintiff may think fit ; and whether they are so 
 or not, it will be necessary for the defendant to afford the fullest 
 information touching the subject ; and that not by schedules, but 
 by the answer itself, with reference if necessary to accounts previ- 
 ously settled, and to other vouchers, so as to make them part of 
 
 1 59th Equity Eule; 2 Foster's Fed. Pr. 1266. 
 
 2 Arite, i 112, Div. 9. 
 
 ' Ante, I 112, Div. 12. 
 
 * Ante, I 112, Div. 3, note; Minor's Institutes, Vol. 4, Pt. 2, p. 1176. 
 
 6 Poit, I 125, note. 
 
414 ANSWERS IN CHANCERY. § 124 
 
 the answer and to give the fullest opportunity for inspection and 
 inquiry.' 
 
 An answer may set up any number of defences as the conse- 
 quence of the same state of facts which the case will allow, but it 
 cannot insist upon defences which are inconsistent with each other, 
 or as the consequence of inconsistent facts, whether each defence 
 is substantially relied upon, or is set up in the alternative;^ and 
 where the answer does set up two inconsistent defences, it has been 
 held that the result will be to deprive the respondent of either, 
 and to entitle the plaintiff to a decree.' Amendments are allowed, 
 however, where the inconsistency results from redundancy of ex- 
 pression or verbal inaccuracies.* 
 
 A defendant is not obliged to answer scandalous matter con- 
 tained in a bill, and while an objection on that account may not be 
 met by demurrer, yet the defendant is entitled to .have the record 
 purified by expunging the scandalous matter,'' and for this purpose 
 it may be referred to a master commissioner,^ or the court will 
 itself act directly upon it. So, also, an answer should not go out 
 of its way to contain anything scandalous, and if it does the scan- 
 dalous matter may be likewise expunged on exceptions being taken 
 thereto.' 
 
 The same rule applies to impertinence, as when the pleading is 
 stuffed with long recitals or with long unnecessary digressions.* It 
 is remarked, however, that whilst an answer cannot be scandalous 
 without being impertinent, it may be impertinent without being 
 scandalous.' 
 
 ' Minor's Institutes, Vol. 4, Pt. 2, p. 1179. Nor can he introduce evidence in- 
 consistent with his answer. Shirley v. Long, 6 Eand. 764. 
 
 2 Daniel's Chy. Pr., Vol. 1, p. 713; First National Bank v. Parsons, 42 W. Va. 
 139; 24 S. E. B. 557; Miller v. Willis, 42 W. Va. 525. 
 
 ' Daniel's Chy. Pr., Vol. 1, p. 713. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 713. 
 
 6 Daniel's Chy. Pr., Vol. 1, p. 349. 
 
 " Mason v. Mason, 4 H. & M. 414; Sommers v. Torrey, 5 Paige, 54; 28 Am. 
 Dec. 411. 
 
 ' Story's Eq. PI., ? 862. ^ Ibid., ? 863. 
 
 » Minor's Institutes, Vol. 4, Pt. 2, p. 1180. 
 
§ 125 EXCEPTIONS TO AN ANSWER. 415 
 
 When matter is expunged for scandal or impertinence it must 
 be done at the cost of the party who inserted it.^ 
 
 The answer must also be sufficient, and if the plaintiff con- 
 ceives it not to be so, he may except thereto, stating in writing 
 wfiat parts of the bill he regards as not answered, or insufficiently 
 answered, and praying that the defendant may in such respects put 
 in a further and full answer.^ 
 
 Exceptions to an Answer. 
 
 § 125. Objections to an answer (except to that of an infant, 
 etc.,^) for insufficiency,* that is, for not answering the averments 
 of the bill fully, for not disclosing matter, a discovery of which is 
 sought, for evasion or indirectness, for arguing instead of answer- 
 ing, for scandal, impertinence, indecency, or immateriality, or for 
 too great diffuseness, for confusion of statement,' and other proper 
 objections to an answer, are set up by exceptions, which ought to 
 be in writing,^ and are generally written on the answer itself, al- 
 though this of course is not necessary. 
 
 The exceptions should pray that the defendant put in a further 
 and full answer to the bill, and all the points of insufficiency 
 should be fully and minutely stated, for, after the answer to the 
 
 1 Minor's Institutes, Vol. 4, Pt. 2, p. 1180; 1 Daniel's Chy. Pr., p. 350. 
 
 2 Story's Eq. PL, ? 864; Craig v. SebreU, 9 Grat. 131. 
 
 3 Minor's Institutes, Vol. 4, Pt. 2, p. 1184. 
 
 * Daingerfield, &c. v. Claiboume, &c., 2 Munf. 387; Coleman v. Lyne's Ex'or, 
 4 Kand. 457. If the defendant, by way of avoidance, set up a distinct matter 
 which is not called for by the bill, and the complainants wish to have the details 
 of such new matter, he should amend his bill and state the matter by way of pre- 
 tences, and call upon the defendant to answer as to the particulars thereof. He 
 cannot except upon the ground of insufficiency to that part of the answer which is 
 not responsive to the bill, though if the fact stated be wholly immaterial, the 
 answer may be objected to for impertinence. Spencer v. Van Duzen, &c., 1 
 Paige, 555. 
 
 * Minor's Inst, Vol. 4, Pt. 2, p. 1180, and authorities cited. 
 
 ^ Ibid. ; Story's Eq. PL, § 864. If no exception is made in the lower court it 
 is too late to object in the court of appeals. Burlew, Trustee, v. Quarrier et al, 16 
 W. Va. 108. 
 
416 ANSWEES IN CHANCERY. § 125 
 
 exceptions, unless the defendant files a fiirtljer answer/ or except 
 in the case of a clear mistake, the plaintiff cannot add to his ex- 
 ceptions, nor will he be allowed to file exceptions after a replica- 
 tion to the answer.^ 
 
 If there are two or more defendants to a bill, and the defend- 
 ants answer separately, separate exceptions must be taken to each 
 answer, but exceptions to a joint answer may be allowed as to one 
 defendant only. The exceptions must be signed by the counsel, 
 and should be duly noted as filed.^ The particular form or 
 phraseology of an exception is not determined by any exact rules, 
 and the mode by which it shall point out the parts objected to is 
 a matter of practice discretionary with the courts, and is not a 
 subject of appeal.* 
 
 The exceptions are sometimes referred to a master commissioner 
 to report upon what parts of the answer should be stricken out, 
 just as is sometimes done with exceptions to a bill ; ° but usually, 
 under the practice in Virginia, they are argued and submitted to 
 the court ; ^ the statute ' providing that where the plaintiff files 
 exceptions to an answer, they shall be set down to be argued, and 
 when they are sustained he will be allowed further time to answer ; ^ 
 and if he puts in a second answer, which is adjudged insufficient, 
 he may be examined upon interrogatories, and committed until he 
 
 •Daniel's Chy. Pr., Vol. 1, p. 761. 
 
 ' Coleman v. Lyne's Ex' or, 4 Eand. 458. Aa the custom is for the clerk, with- 
 out instructions, to enter up the replication immediately upon the filing of the 
 answer, a party wishing to except thereto will generally be allowed to withdraw 
 his replication for that purpose. 
 
 » Daniel's Chy. Pr., Vol. 1, p. 763 to 775. For the form and efieot of an ex- 
 ception to an answer, see Richardson v. Donehoo et al, 16 W. Va. 685. 
 
 * Craig V. SebreU, 9 Grat. 131. 
 ' Story's Eq. PI., §865. 
 
 'Minor's Institutes, Vol. 4, Pt. 2, p. 1181. • 
 
 ' ii 3276, 3277. The statute of West Virginia (Code, Ch. 125, §? 54, 55) does 
 not contain the provision for striking out the answer and taking the bill for con- 
 fessed, and it was only introduced into the Virginia statute with the Code of 1887. 
 For the construction and effect of the West Virginia statute, see Eichardson i. 
 Donehoo, 16 W. Va. 685. 
 
 * Johnston, Trustee, v. Wilson, &c., 29 Grat. 390. 
 
§ 126 THE GENERAL EFFECT OF AN ANSWER. 417 
 
 answers properly, or, on motion of the plaintiff, the court may 
 strike out the answer, and take the bill for confessed. 
 
 If the exceptions are set down to be argued, the court is simply 
 to decide whether the answer is sufficient or not.^ Should the 
 chancellor, without deciding whether the exceptions are good or 
 bad, proceed to decree as upon a hearing, and send the cause to a 
 commissioner for an account, upon appeal from the final decree, 
 the appellate court will reverse the decree, set aside the proceeding 
 subsequent to the exceptions, and send back the cause for the ex- 
 ceptions to be heard ; ^ but if the appellate court thinks the excep- 
 tions not well founded, the case will not be reversed, though they 
 were not passed on by the court below.^ 
 
 When the exceptions are heard, if the answer is thought suffi- 
 cient, the exceptions will, as we have stated, be overruled ; but if 
 they are sustained, and the defendant refuses to answer further 
 within the time prescribed by the court, the bill may be taken for 
 confessed, and a decree rendered accordingly.* 
 
 In the United States courts, when upon argument the plaintiff's 
 exceptions to the answer are overruled, or the answer is adjudged 
 insufficient, the prevailing party is entitled to all the costs oc- 
 casioned thereby, unless otherwise directed by the court or the 
 judge thereof at the hearing upon the exceptions.^ The rule is 
 substantially the same in the State courts. 
 
 The General Effeot of an Answer. 
 
 § 126. Prior to the existing statutes of Virginia and West 
 Virginia, which will be presently considered, the answer of a de- 
 
 1 First Nat. Bank v. Parsons, 42 W. Va. 147; 24 S. E. E. 557. 
 
 2 Qark v. Tinsle/s Adm'r, 4 Band. 252. 
 
 ' Goddin v. Vaughn's Ex'x, et ah, 14 Grat, 102. 
 
 * Turner v. Turner, 4 Ves.'<619, note d; Coleman v. Lyne's Ex' or, 4 Eand. 456; 
 Clarke v. Tinsley's Adm'r, 4 Kand. 252. See also Weaver v. Livingston, 1 Hop- 
 kins' Chy. E. 595; Davis v. Davis, 2 Atk. 21; Mayer v. Tyson, 1 Bland. 559; 
 Buckingham v. Peddicord, 2 Bland. 447. 
 
 5 65th Equity Eule, Dest/s Fed. Procedure, p. 298. 
 
 27 
 
418 ANSWERS IN CHANCERY. § 126 
 
 fendant responsive to the matter stated in the bill, intended as a 
 statement of the plaintiff's case, and not merely to suggest the 
 pretences on which the defendant seeks to evade his obligations,^ 
 or of which the bill seeks disclosure from the defendant, was con- 
 clusive evidence in his favor, unless it was overcome by the oppos- 
 ing witnesses ; or by one witness corroborated by other circum- 
 stances and facts which give to it a greater weight than the answer, 
 or which are equivalent in weight to a second witness.^ The rea- 
 son of this rule, as generally understood is, that the plaintiff calls 
 upon the defendant to answer an allegation of fact which he 
 makes, and thereby he admits the answer to be evidence of the 
 fact ; ' but a test of its suificiency as the sole reason, was applied 
 where in his bill the plaintiff declared himself to be full-handed 
 with proof, and disclaimed any discovery from the defendant ; and 
 he claimed that as he did not design making the defendant his 
 witness, according to the reason of the rule, as laid down by 
 Judge Story, the answer of the defendant should not be evidence 
 against him. But the court held that the weight given to an an- 
 swer is the law of the forum in which the litigant suee ; that all 
 that applied there for relief must submit to have their causes tried 
 according to its established mode of procedure, and that it was not 
 
 1 Lea's Ex'ors v. Eidson, 9 Gratt. 277. 
 
 2 Vigel V. Hopp, 104 U. S. K. 441; Thompson v. Qark, 81 Va. 422. "Or by 
 corroborating circumstances alone, or by documentary evidence alone." Jones el al 
 V. Abraham et al, 75 Va. 466; Moore v. Ullman et als, 80 Va. 307. 
 
 ' Story's Equity Jurisprudence, | 1528; Taylor v. Moore, 2 Band. 576; Union 
 Bank v. Geary, 5 Pet. Ill, 112; Minor's Institutes, Vol. 4, Pt. 2, p. 1191. Though 
 a plaintiff may in his bill disclaim the benefit of a discovery, he could not before 
 the statute thereby deprive the defendant of the right to answer on oath, and have 
 the advantage of such answer as evidence in his favor so far as it is j-esponsive to 
 the biU. If the defendant does not answer on his own knowledge, it can only be 
 treated as a plea of denial and not as evidence m his behalf Jones el al v. Abra- 
 ham et al, 75 Va. 466; Thompson v. Clark, 81 Va. 428; Moore v. Ullman, 80 Va. 
 311. But these cases were decided before the statute (Code, J 3281), which seems 
 plainly to give to complainant the right to waive the oath to any or all of the in- 
 terrogatories of the bill, and thus to deprive the answer of the weight formerly 
 given to it as evidence. 
 
§ 126 THE GENERAL EFFECT OF AN ANSWER. 419 
 
 in tKe power of the plaintiff, by framing his bill to that end, to 
 make his case an exception to the settled rule.^ 
 
 But, as we have already seen, the answer to be evidence must 
 not be evasive, but must positively contradict the averments of 
 the bill ; and although in such cases a defective answer should be 
 met by exceptions to it, yet if not excepted to, it may be out- 
 weighed as to such evasive responses by the testimony of one 
 witness and circumstances,^ or by any satisfactory proof.' 
 
 The rule allowing such weight to an answer as evidence does 
 not, however, extend to averments in the answer not directly re- 
 sponsive to the allegations of the bill, for such the complainant 
 has not called for ; * and as to such affirmative averments the de- 
 fendant is as much bound to establish allegations so made by in- 
 dependent testimony as the plaintiff is to sustain the bill." 
 
 Upon an examination of the bill and answer in each case under 
 this rule depends of course what may be considered as responsive 
 to the bill, and what is set up affirmatively by the defendant, and 
 no sufficient general rule can be laid down for that purpose ; but it 
 has been held that an answer stating the particulars of a transac- 
 tion charged and enquired into, is responsive ; ^ so also where the 
 bill required the defendant to state an account between the parties, 
 the account so stated was held to be responsive.^ Where, how- 
 
 ' Thornton v. Gordon, 2 Bob. R. 750; Jones et al v. Abraham et al, 75 Va. 466. 
 2 Wilkins V. Woodfin, 5 Munf. 184. 
 3 1 Daniel's Chy. Pr. 846, note. 
 
 * Seitz V. Mitchell, 4 Otto, 582; Vathir v. Zane, 6 Grat. 246. 
 
 * 1 Daniel's Chy. Pr., p. 844, note; Jones v. Cunningham, 7 W. Va. 707. But 
 see the statute of West Virginia. Code W. Va., Ch. 125, ? 35. See also Coven- 
 hoven v. Shuler, 2 Paige, 122, whei'ein it was held that the defendant's answers 
 are to be taken as true if the complainants do not give them an opportunity to 
 substantiate them by proof. 
 
 * Where the bill was to avoid a deed, and called for the particulars of a recited 
 consideration of $1,000, and the answer averred an indebtedness for services ren- 
 dered, it was held that the averments of the particulars of the consideration were 
 not responsive to the allegations of the biU, and therefore not evidence for the re- 
 spondents. King's Ex'ora v. Malone el als, 31 Grat. 169. 
 
 'Corbin et als v. Miller's Ex' or et als, 19 Grat. 438; 1 Daniel's Chy. Pr., p. 
 844, note. 
 
420 ANSWERS IN CHANCERY. § 126 
 
 ever, the bill set out an agreement, and called upon the defendant 
 to admit or deny it, but not to state what it was, and the defend- 
 ant in his answer set forth another agreement, it was held not to 
 be responsive to the bill, and not evidence for the defendant.^ 
 
 When the case is heard on bill and answer simply, it is laid 
 down as a general rule that the answer must be taken as true 
 whether responsive or not, because then the defendant is precluded 
 from proving it ; but it has also been held that general allegations 
 containing matters of belief and conclusions from facts not par- 
 ticularly stated, are entitled to little or no weight in a hearing on 
 the bill and answer ; although it has also been held that such an 
 answer is sufficient to put the plaintiff to the proof of his case, 
 and the court in such a case will believe what the defendant be- 
 lieves, nothing being found to the contrary.^ But it has been fre- 
 quently held, both in Virginia and elsewhere, that when a cause is 
 brought on, even by consent,^ to be heard on the bill and answer, 
 and without any replication, that the answer is to be taken as true 
 in every part of it, including also the facts stated which are not 
 responsive to the bill ; * but where there is a replication, the rule 
 is that an answer is not evidence for the respondent when it asserts 
 a right affirmatively in opposition to the plaintiff's demand, and 
 that the facts thus stated must be established by independent and 
 satisfactory proof.^ Nor is it every answer, even where there is 
 
 ' 1 Dan. Chy. Pr., p. 844, note. 
 
 ' See the cases cited in 1 Daniel's Chy. Pr., p. 845, note. 
 
 ' Jones V. Mason, Ex' or, &c., 5 Band. 577; Bieme v. Kay, 37 W. Va. 571. 
 
 * Kennedy?). Baylor, 1 Wash, 162; Maupin v. Whiting, 1 Call. 224; Avery d. 
 Petten, &c., 7 Johns. Chy. B. 213; Cunningham v. Freeborn, 3 Paige, 557; Findlay 
 V. Smith, &c., 6 Mrnif. 142; Brinkerhoff, &c. v. Brown, &c., 7 Johns. Chy. B. 223; 
 Bryant t). Grove, W. Va.; 24 S. E. E. 605; Story's Eq. PI., ? 877. 
 
 s Minor's Institutes, Vol. 4, Pt. 2, p. 1192, citing 2 Story's Eq. PI., § 1529; 
 Paynes v. Coles, 1 Munf. 373; Vathir v. Zane, 6 Grat. 246. In Vathir v. Zane the 
 case was heard on bill, answer, amended bill, and evidence taken in the cause. It 
 does not appear whether a replication was or was not filed, but no point was made 
 on that fact, and the issue is evidently treated as having been fully made up. The 
 same is substantially true of the case of Paynes v. Coles, 1 Munf. 378, and the 
 citations from ? 1529 of Story's Equity Jurisprudence had no reference to a cause 
 which is heard on bill and answer without replication. 
 
§ 126 THE GENERAL EFFECT OF AN ANSWER. 421 
 
 no replication, whose denials and statements of- facts will be taken 
 as true, for the answer to be accepted as such must clearly and un- 
 equivocally deny those allegations of the bill upon which alone it 
 can be sustained, or must set up sufficient new matter in avoid- 
 ance of them. There should be no fact admitted by tlie answer 
 inconsistent with the defendant's denial, no equivocal denial, and 
 no doubtful avoidance.^ 
 
 Those allegations of a bill which are not responded to by the 
 answer, although an exception would properly lie on that account, 
 are yet not to be taken as admitted,^ but must be proved by the 
 plaintiff.^ In those cases where a difierent doctrine is held, the 
 allegation was that some fact did not exist or that something was 
 not done.* In favor of the defendant, however, the admissions of 
 the bill are always taken to be true.° On the other hand, except 
 
 ^ Cocke et ah v. Minor et ah, 25 Grat. 246; O'Brien et al v. Elliott, 15 Maine, 
 125; 32 Am. Deo. 137. 
 
 ' Clinch Eiver Mineral Co. v. Harrison et ak, 91 Va. 122. 
 
 'Coleman v. Lyne, 4 Rand. 454; Cropper v. Bm-tons, 5 Leigh, 426; MUler ». 
 Argyle's Ex' or et ai, 5 Leigh, 460; Tennent's Heirs v. Patton, 6 Leigh, 196. Con- 
 tra, Grimstone v. Carter, 3 Paige, 421; 24 Am. Dec. 230; and the contrary is pro- 
 vided by statute in West Virginia. Code W. Va., Ch. 125, | 36. 
 
 *Page, Ex'or i;.. Winston's Adm'r, 2 Munf. 298; Edgar v. Donally, &c.. Ibid. 
 387; Coleman v. Lyne, 4 Band. 457; Scott v. Gibbons, 5 Munf. 86. In West Vir- 
 ginia, upon the construction of the statutes of that State (Code, Ch. 125, J| 30, 36), 
 and on the authority of the case of Williams v. Corwin, 1 Hop. Chy. B. 471, 
 it is held that where the allegations of a bill are distinct and positive, and the bUl 
 is taken for confessed, or where its material allegations are not controverted by an 
 answer, such allegations are taken as true without proof; but in respect to all mat- 
 ters not alleged with due certainty, or subjects which, from their nature, require an 
 examination, the obligation to furnish proof rests on the plaintiff. Campbell v. 
 Lynch et als, 6 W. Va. 17; Gardner et al v. Landoraft et als, Ibid, 36. See also 
 Neale v. Hogthrop, 3 Bland, 569. Which was the case of a bill for discovery. 
 Dickenson v. BaUroad Co., 7 W. Va. 390; wherein it is held that if one defendant 
 controverts the material allegations of the bUl by his answer, and his interests may 
 be affected by the truth of such allegations, the failure of another defendant to do 
 so does not dispense with the necessity of proof as to such allegations as to the de- 
 fendant who does controvert them by his answer. An answer in chancery setting 
 forth material facts which should have been stated in the bUl, but were omitted, is 
 a waiver of the right to object to that bill because of this omission. Cavender v. 
 Cavender, 114 U. S. E. 464. 
 
 n Daniel's Chy. Pr., p. 838. 
 
422 ANSWEES IN CHANCERY. § 126 
 
 in the case of infants/ the admissions of an answer may be read 
 in evidence against the respondent. When this is done, however, 
 the whole answer, or all that part of it that relates to the subject 
 of the admission, must be read together ; ^ for if the plaintiff pro- 
 pose to read a passage from the answer, he must read all the cir- 
 cumstances stated as connected with it ; and if it contain a refer- 
 ence to any other passage, that other passage must be read also ; 
 but when a portion of that read makes against the plaintiff, he will 
 be permitted, nevertheless, to read evidence to disprove such alle- 
 gations.^ Nor is it meant that all of an answer, or all of any part 
 of it, because read by the plaintifitj is on that account to be taken 
 as true, even though he does not disprove it, for the rule of read- 
 ing it all is like that of all other evidence ; the whole must be 
 heard and considered together. Hence, it was held that if a party 
 admitted in his answer the receipt of a sum of money on a certain 
 day, and stated further that he paid it over on a subsequent day, 
 his admission is taken to be true, and yet he must prove the matter 
 in discharge ; ^ for while the whole answer will be in evidence, the 
 court may believe one part of it, and disbelieve the other."* 
 
 In the case of a bill of discovery in regard to a demand or de- 
 fence properly cognizable at law, but which cannot be established 
 there for want of proofs, the rule giving effect to an answer is 
 different from that in an ordinary suit for relief, for then no part 
 of the answer pertinent to the discovery is to be rejected because 
 it is affirmative matter in avoidance of that which is admitted to 
 be true, but in this, as in other bills in chancery, the matter of 
 
 •SeePosi, i 127, Div. 1. 
 
 '' Clincli River Mineral Co. v. Harrison et als, 91 Va. 122. 
 
 3 Daniel's Chy. Pr., Vol. 1, p. 839. 
 
 * Thompson „. Lambe, 7 Ves. 587; Eidgeway ti. Darwin, 7 Ves. 404; Eobinaon 
 V. Scotney, 19 Ves. 583; Hart v. Ten Eyer, 2 Johns. Chy. E. 62; Fletcher v. 
 Froggat, 2 Carr & P. (12 E. C. L. ) 569; Handle v. Blackburn, 5 Taunt. (1 E. C. 
 L.) 245; Hill v. Chapman, 2 Bro. C. C. 612; Blount v. Burrow, 1 Ves. Jr. 547; 
 Morrison v. Grubb, 23 Grat. 348; Minor's Institutes, Vol. 4, Pt. 2, p. 1193; BeU 
 ■I,. Moon, 79 Va. 341. 
 
 ^ Mayo' 3 Ex' or v. Carrington's Ex' or et als, 19 Grat. 116. 
 
§ 126 THE genesal effect of An Answer. 423 
 
 the answer is subject to be contradicted by the necessary amount 
 of evidence.^ 
 
 Besides the direct admission of facts in the answer, those mat- 
 ters which the respondent says he has been informed of, and be- 
 lieves to be true, may be read in evidence against him ; although 
 such matters as he merely states he has been informed of, without 
 stating his belief, will not be evidence against him ; and even 
 when he does state his belief, that statement may still be coupled 
 with some clause that may prevent its being considered as an 
 admission.^ 
 
 An admission in an answer will not avail unless it is put in issue 
 by the bill ; and hence it may often happen that the plaintiif is 
 obliged to ask leave to amend his bill, although a clear case for 
 relief is apparent upon the face of the pleadings.^ In the pro- 
 ceeding for the sale of lands of persons under disabilities, it must 
 appear independently of any admissions in the answer that the 
 sale of the land will promote the interests of the infant, insane 
 person, or beneficiary in the trust.* 
 
 The weight of the whole answer cannot be destroyed by prov- 
 ing that the defendant is unworthy of credit, nor by proving di- 
 rectly or indirectly that the answer is false in one or several re- 
 spects.' The only effect of such proof is to destroy the weight of 
 the answer to the extent to which it is disproved by that amount 
 of evidence which is required by the rules of equity.^ 
 
 ^ Lyons v. IVIiller, 6 Grat. 427. See also Shurtz et als v. Johnson et ak, 28 Grat. 
 662; Fant v. Miller & Mayhew, 17 Grat. 187. So also when the answer is to 
 specific interrogatories in the bUl. Shultz et als v. Hansbrough et als, 33 Grat. 567. 
 The allegations in an answer to a biU of discovery, under oath and responsive to 
 the bill, jre to be taken as evidence for the defendants. Ward's Adm'r v. Cor- 
 nett, 91 Va. 679. But where the oath is waived, see Ante, p. 411, note. 
 
 2 Daniel's Chy. Pr., Vol. 1, p. 840. 
 
 'Story's Eq. PI., § 264; Pindall's Ex'x v. Eib, 5 Leigh, 132. But see 1 Dan- 
 id's Chy. Pr., p. 407, and note. • 
 
 * g 2620 as amended by acts of March 5, 1888, acts 1887-8, p. 504, and of May 
 1, 1888, acts 1887-8, p. 240; Code W. Va., Ch. 83, i 5. See also Post, I 127. 
 ■» Broughton v. Coffer, 18 Grat. 184. 
 
 « PoweU and Wife v. Manson, 22 Grat. 189; Fant v. Miller & Mayhew, 17 Grat. 
 187. On the weight of evidence, see Shannon v. McMuUin, 25 Gfat. 211. 
 
424 ANSWERS IN CHANCEEY. § 126 
 
 These rules are thus fully stated because they are in full force 
 in Virginia, except that the statute ^ now provides that if the com- 
 plainant in a suit in equity shall, in his bill, waive an answer un- 
 der oath, or shall only r.equire an answer under oath, with regard 
 to certain specified interrogatories, the answer of the defendant, 
 though under oath, except such part as shall be directly responsive 
 to such interrogatories, shall not be evidence in his favor, unless the 
 cause be heard upon bill and answer only ; but may, nevertheless, 
 be used as an affidavit with the same eifect as heretofore upon a 
 motion to grant or dissolve any injunction, or upon any other in- 
 cidental motion in the cause ; but this shall not prevent a defend- 
 ant from testifying in his own behalf, where he would otherwise be 
 a competent witness. 
 
 Under this statute it has been held,^ that where an original bill 
 does not waive an answer under oath, the answer, responsive to 
 the bill, is evidence in his behalf, and the complainant cannot de- 
 prive the defendant of the benefit of his sworn answer by filing 
 an amended bill waiving the oath, after the sworn answer has 
 been filed. 
 
 The statute of West Virginia ^ provides that if the plaintiff de- 
 sires the defendant to answer the bill on oath he must verify his 
 bill by affidavit, and if the bill be so verified, the defendant must 
 in like manner verify his answer. But if the bill be not verified, 
 the defendant need not verify his answer, and if he does so it shall 
 not be entitled to any more weight in the cause than if it had not 
 been verified. In case the defendant verify his answer, alleging 
 new matter constituting a claim for affirmative relief, the plaintiff 
 must verify his special reply thereto. A general replication to an 
 answer claiming affirmative relief shall not apply to so much of 
 said answer as states facts constituting a claim to such relief. 
 
 t 
 
 ^ ? 3281. This statute was adopted by act of January 18, 1884, acts 1883-4, p. 
 15, and is copied from Rule 41, 2d Part, Equity Eules of the U. S. Courts. See 
 Desty's Federal Procedure, p. 701. 
 
 ^ Throckmorton v. Throckmorton, 86 Va. 770, citing Conley v. Nailer, 118 U. 
 S. K. 127. 8 Code, Ch. 125, ? 38. 
 
§ 127 EFFECT OF AN ANSWEE IN SPECIAL INSTANCES. 425 
 
 Then the statute (Code W. Va., Ch. 125) has these two other 
 provisions : 
 
 " § 36. Every material allegation of the bill not controverted 
 by an answer, and every material allegation of new matter in the 
 answer constituting a claim for affirmative relief, not controverted 
 by a special reply in writing, shall, for the purposes of the suit, 
 be taken as true, and no proof thereof shall be required." ^ 
 
 " § 59. When a defendant in equity shall in his answer deny 
 any material allegation of the bill, the effect of such denial shall 
 only be to put the plaintiff on satisfactory proof of the truth of 
 such allegation ; and any evidence which satisfies the court or jury 
 of the truth thereof shall be sufficient to establish the same." 
 
 The Effect of cm Answer m Special Instances. 
 
 § 127. The special instances to be considered are : I, The an- 
 swer of an infant ; II, The answer of a lunatic ; III, The answer 
 of a married woman ; IV, The answer of a corporation ; V, The 
 answer to a bill for a divorce ; VI, The answer where there is an 
 issue out of chancery ; VII, The answer in a proceeding devisavit 
 vel non ; VIII, The answer in a proceeding for relief from usur- 
 ious or gambling transactions ; IX, Answers between co-defend- 
 ants ; X, Answers on motions for the appointment of receivers ; 
 XI, The answer to a bill for an injunction ; XII, The answer to a 
 bill of discovery. 
 
 I. The Answer of an Infant. — ^An infant, as we have already 
 seen, can only answer by guardian ad litem. The court in term, 
 or the clerk at rules, may appoint a guardian ad litem to an infant 
 
 1 See N. Y. Code of Procedure, p. 337, ? 168, 8th edition; Kosset v. Green, 3 
 W. Va. 1; White Sulphur Springs Co. v. Eobinson, Stiff et al, Ibid. 542; Coal 
 Eiver Navigation Co. et al v. Webb, Ibid. 438; Martin v. Kelleham, Ibid. 480; 
 Cleggett V. Kittle et al, 6 W. Va. 452; Forqneran v. Dounally, 7 W. Va. 114; 
 Baker v. Oil Tract Company, Ibid. 454; Jones v. Cunningham, Ibid. 707; Laidly 
 ■0. Kline's Adm'x, 8 W. Va. 218; Middleton v. Selby, 19 W. Va. 167; Snyder v. 
 Martin, 17 W. Va. 276; McMuUen v. Eagan, 21 W. Va. 234; Cunningham i,. 
 Hedrick, 23 W. Va. 579. 
 
426 ANSWERS IN CHANCERY. § 127 
 
 or insane defendant, whether such defendant shall have been served 
 with process or not. The court may compel the person so ap- 
 pointed to act ; but he shall not be liable for costs, and shall be 
 allowed his reasonable charges, which the party on whose motion 
 he was appointed shall pay.' The answer of the guardian ad litem 
 is put in on his own oath, and not that of the infant ; the infant 
 is not bound by it ; it cannot be read against him at all for any 
 purpose, and exceptions will not lie to it for insufficiency.^ 
 
 It is the duty of the court to see that the rights of an infant 
 are not prejudiced or abandoned by the answer of the guardian ; 
 and the plaintiff wiU not be allowed to avail himself at any stage 
 of the proceeding of an admission or omission of the guardian ad 
 litem, nor can he in any' form of pleading compel an infant to be- 
 come a witness against himself.' 
 
 II. The Answer of a Lunatic. — The statute * of Virginia, in the 
 word " insane person," includes every one who is an idiot, lunatic, 
 non compos, or deranged, and further provides ° that in a suit where 
 
 ^ S 3255. The guardian ad litem under the Virginia statute must be an attorney- 
 at-law, unless no such attorney be found willing to act. Code W. Va., Ch. 125, 
 2 13. Held that a guardian ad litem could not contract for attorneys' fees. Cole v. 
 Superior Court, 63 Cal. 86; 49 Am. E. 78. 
 
 ^ 1 Daniel's Chy. Pr., p. 169; The Bank of Alexandria v. Patton et als, 1 Eob. 
 528; Durrett c. Davis' Guardian et als, 24 Grat. 302; Calvert on Parties, Law L. 
 17, p. 181. When a paper purporting to be an answer was found among the pa- 
 pers of a cause, yet as it did not appear that it had been filed, it was declared to be 
 error to decree the sale of the infant's land without an answer filed by the guard- 
 ian ad litem. Ewing's Adm'r et als v. Ferguson's Adm'r et als, 33 Grat. 548; 
 Hays' Comm. v. Camden's Heirs, 38 W. Va. 120. But in Smith v. Henkel, 81 
 Va. 524, it was held that when it appeared from the record that the infant defend- 
 ants appeared and answered by their guardian ad litem, and that there was a gen- 
 eral replication thereto, it wiU be presumed in the appellate court that the answer 
 was regularly filed, though the answer itself was not found among the papers in 
 the record. 
 
 ' Daniel's Chy. Pr., Vol. 1, p. 167. It is error to proceed without the appoint- 
 ment of a guardian ad litem, and he must answer as such. Alexander v. Davis 
 W. Va. ; 26 S. E. K 291. ' 
 
 *§5; CodeW. Va., Ch. 13, §17. 
 
 ' i 3255; Code W. Va., Ch. 125, J 13. See Fowler v. Lewis' Adm'r, 36 W. Va. 
 128. It is generally in the discretion of the court whether a guardian ad. litem shall 
 be appointed for one Tion compos mentis (King v. Robinson, 33 Maine, 114; 54 Am. 
 
§ 127 EFFECT OF AN ANSWER IN SPECIAL INSTANCES. 427 
 
 an infant or insane person is a party the proceedings shall not be 
 stayed because of such infancy or insanity, but a guardian ad litem 
 may be appointed in the way we have already indicated. These 
 two provisions of the statute have been construed' to mean that an 
 insane person shall in all cases defend by guardian ad litem} 
 
 The answer of a guardian ad litem for an insane person has the 
 same effect, and no more, as that of an infant; but where the 
 answer of an idiot, lunatic, &c., is put in by a committee, it may 
 be read against him ; ^ and this has also, but with great hesitation, 
 been held to be true where a person of weak mind puts in his 
 answer by guardian.^ 
 
 III. The Answer of a Marned Woman. — Independent of the 
 statute,* as a general rule, the separate answer of a married wo- 
 man may be read against her, and the peculiar relations of husband 
 and wife will not protect her from making a discovery relating 
 solely to her own conduct and affecting only her own interests ; ° 
 but the wife can never be admitted, by answer or otherwise, to 
 make evidence to charge her husband.^ 
 
 When the husband and wife are made defendants to a suit re- 
 lating to personal property belonging to the wife, and they put in 
 a joint answer, such answer may be read against them for the pur- 
 Dec. 614), but in Virginia it is only when there is no committee, or when there is 
 a conflict of interest between the committee and the lunatic, that it becomes neces- 
 sary to appoint a guardian ad litem for the insane defendant. Hinton et als v. Bland' s 
 Adm'r et als, 81 Va. 588. The answer of a committee does not relieve the court 
 of the necessity of taking an account of liens in a creditor's suit. Calloway's 
 Committee v. Dinsmore, 83 Va. 309. Neither the guardian ad litem nor an infant 
 can consent to a decree for the sale of lands. Dangerfield v. Smith, 83 Va. 81. 
 For the general liability of an insane person on his contracts, see 1 Bart. Law Pr. 
 222. 
 
 ' Minor's Institutes, Vol. 4, Pt. 2, p. 636. 
 
 n Daniel's Chy. Pr., p. 841. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 841. As to suits for and against lunatics, see 
 Ante, Ch. 3, § 51; and Bird's Com. v. Bird, 21 Grat. 712; Boiling v. Turner, 6 
 Band. 584. 
 
 * Ante, I 55. 
 
 5 Metier v. Metier, 3 C. E. Green (N. J.) 270. 
 
 "Daniel's Chy. Pr., Vol. 1, p. 184. 
 
428 ' ANSWERS IN CHANCERY. § 127 
 
 pose of fixing them with the admissions contained in it; but when the 
 subject-matter relates to the inheritance of the wife, it cannot be so 
 read, and the facts relied on must be supported by other evidence.^ 
 
 When a bill is filed for the purpose of setting aside a convey- 
 ance by the husband to his wife, upon the ground that it is fraudu- 
 lent and not founded on a consideration deemed valuable in law, 
 the burden of proving the consideration is on the wife f and when 
 no discovery is sought of her she will not be permitted by her an- 
 swer to supply proof of the contract and its execution, by which 
 she establishes a valuable consideration for the deed ; but the de- 
 fendant who in her answer sets up such a contract by way of de- 
 fence must establish it by legal and proper evidence.' 
 
 IV. The, Answer of a CorporaMon. — The answer of a corpora- 
 tion not being put in under oath, but under the common seal of 
 the corporation, has no more effect than the unsworn answer of an 
 individual.^ If the plaintiff wishes to have a sworn answer he 
 must make some of the officers or members" of the corporation 
 
 * 1 Dan. Ch. Pr. 184. But this is subject to the statute permitting husband and 
 wife to testify for or against each other in certain civil cases. Act March 3, 1898, 
 Acts 1897-8, p. 753. 
 
 2 Hatcher v. Crews, 78 Va. 460; Lewis et cds v. Mason's Adm'r, 84 Va. 731. The 
 burden of showing that his debt was contracted before the conveyance is on the cred- 
 itor. Scott V. Jones, 76 Va. 233. Such post nuptial settlements are presumed to be 
 fraudulent. Perry and Wife v. Buby et als, 81 Va. 317; EoUins o. Armstrong, 
 Cator & Co., 84 Va. 810; Grant v. Sutton, 90 Va. 771. When wife's money comes 
 into husband' s hands and he uses it for years as his own the presumption is that it 
 is his property, and she cannot, after years have passed, claim it as her own. 
 Beecher et ah v. Wilson, Bums & Co., 84 Va. 813; Eixey's Adm'r v. Deitrick, 85 
 Va. 42; Yates v. Law, 86 Va. 119; Walker's Adm'r d. Peck, 39 W. Va. 325. The' 
 burden is on the wife to show both consideration and validity. Neal v. Van Win- 
 kle, 23 W. Va.. 405; Core «. Cunningham, 27 W. Va. 206; Bent u Timmons, 29 
 West Va. 441; Mayhew v. Clark, 33 W. Va. 387; Wood v. Harmison, 41 W. Va. 
 376; 23 S. E. E. 560. 
 
 'Blow V. Maynard, 2 Leigh, 49; Campbell v. Bowie's Adm'r et ah, 30 Grat. 
 663. See also William and Mary College v. Powell, 12 Grat. 372. 
 
 * Maryland and New York Coal and Iron Co. v. Wingert, 8 GiU, 170; 1 Dan. 
 Chy. Pr., p. 845, note. 
 
 ' But where stockholders have been allowed to appear and put in answers in 
 the name of the corporation, they cannot be regarded as answering for the cor- 
 poration itself. Bronson v. La Crosse E. E. Co., 2 Wall. 283. 
 
§ 127 EFFECT OF AN ANSWER IN SPECIAL INSTANCES. 429 
 
 parties ; but the answer not being verified by affidavit, it is no 
 evidence for the defendant, though responsive to the bill ; and this 
 is its effect both upon the hearing and on a motion to dissolve an 
 injunction. Such an answer is considered merely as a denial of 
 the allegations in the bill, analogous to the general issue at law, 
 so as to put the complainant to the proof of such allegations.^ 
 
 V. The Answer to a Bill for a Divorce. — It is provided by 
 statute "^ in Virginia, that a suit for a divorce shall be instituted 
 and conducted as other suits in equity, except that the bill shall not 
 be taken for confessed ; and whether the defendant answers or not 
 the cause shall be heard independently of the admission of either 
 party, in the pleadings or otherwise. The purpose of the statute 
 was to prevent a decree being made by collusion of the parties, 
 and not to change the rules of evidence, or to provide a different 
 mode of proving the facts from that pursued in other cases.^ It 
 has, therefore, been held that the defendant in every case may 
 respond to the charges of the bill in his answer, and he is entitled 
 to the benefit of it ; * and while, froip. reasons of public policy, 
 the plaintiff cannot obtain a decree upon the admissions of the de- 
 fendant, clearly the latter, against his or her express denials, can- 
 not be convicted of a violation of the marriage vow, nor can that 
 relation be dissolved upon less evidence than is required to annul 
 an ordinary contract for the sale of property.'' 
 
 VI. The Answer where there is an Issue out of Chancery. — 
 Whether or not a court of equity will direct an issue to be tried 
 
 1 B. & O. E. K. Co. V. City of Wheeling, 13 Grat. 62; Haight v. Prop, of M. 
 Aqueduct, 4 Wash. C. C. E. 601; Union Bank of G-eorgetown v. Geary, 5 Peters, 
 K. 99. But see Fulton Bank v. N. Y. and Sharon Canal Co., 1 Paige E. 311. 
 
 2 § 2260; Code W. Va., Ch. 64, I 8. For the general rules as to the effect of 
 admission in answers to bills for divorce, see Eichardson «. Eichardson, 4 Porter, 
 467; 30 Am. Dec. 538; note, p. 544 to 549. 
 
 '■^ Ante, Ch. 5, § 16. 
 
 ' Excluding the admissions, it is entitled to as much weight in a divorce suit as 
 in any other suit in chancery. Harris v. Harris, 31 Grat. 13. 
 
 ' Latham by, &c. v. Latham, 30 Grat. 307; Throckmorton v. Throckmorton, 86 
 Va. 768. 
 
430 ANSWERS IN CHANCERY. § 127 
 
 by a jury, is a matter of discretion which must be exercised upon 
 sound principles of reason and justice, and a mistake therein is 
 subject to the supervision of the appellate court.' While the 
 court often directs an issue where the evidence is so contradictory 
 as to render an open cross-examination of the witnesses proper, 
 yet it does not follow that an issue is necessary and proper in 
 every case where the evidence happens to be conflicting ; and the 
 court is not bound on that mere ground to direct the issue, but it 
 may judge of the weight of the evidence, and if its conscience is 
 satisfied, decide without a jury.^ It is well settled that in no case 
 ought an issue to be ordered to enable a party to obtain evidence 
 to make out his case ; that where the allegations of the bill are 
 positively denied by the answer, and the plaintiff has failed to 
 furnish the mtnesses, or one witness and corroborating circum- 
 stances, in support of the bill, it is error in the chancellor to order 
 an issue ; that no issue should be ordered until the plaintiff has 
 thrown the burden of proof on the defendant ; that until the onus 
 is shifted and the case rendered doubtful by the conflicting evi- 
 dence of the opposing parties, tlie defendant cannot be deprived 
 by an order for an issue of his right to a decision by the court on 
 the case made by the pleadings and the proof.* 
 
 " It is," says Judge Carr,"* " the bounden duty of the plaintiff 
 
 1 Wise V. Lamb, 9 Grat. 294; Stanard v. Graves, 2 Call. 369; Gardner v. Gar- 
 dener, 22 Wend. R. 536; Dale v. Rosevelt, 6 Johns. Chy. R. 255; Reed v. Cline's 
 Heirs, 9 Grat. 136; Beverly v. Walden, 20 Grat. 154; Post. 
 
 " Nice V. Purcell, 1 H. & M. 372; Samuel v. Marshall and Wife, 3 Leigh, 567; 
 Wise a. Lamb, 9 Grat. 294; Herd's Adm'r v. Colbert et al, 28 Grat. 60; McFar- 
 land's Adm'r etalv. Douglass, 11 W. Va. 637; Nease et al. v. Capeheart, Ex' or, 
 15 W. Va. 299; Lamberts v. Cooper's Ex' or et ais, 29 Grat. 65. 
 
 'Smith's Adm'r u. Betty et ak, 11 Grat. 752; Pryor v. Adams, 1 Call. 382; 
 Wise V. Lamb, 9 Grat. 294; Grigsby v. Weaver, 5 Leigh, 197; Beverly «;. Walden, 
 20 Grat. 154. Although answer under oath be waived, yet when the case made 
 by the bUl is not sustained by proof, an issue out of chancery should not be 
 awarded. Jones et al v. Christian et al, 86 Va. 1017. But these general rules are 
 modified by the provisions of the statute (act March 3, 1898, Acts 1897-8, p. 942), 
 which gives the court the discretion to order an issue out of chancery on affidavits 
 that the case will be rendered doubtful by the conflicting evidence of the opposing 
 party. ' Grigsby v. Weaver, 5 Leigh, 197. 
 
§ 127 EFFECT OF AN ANSWER IN SPECIAL INSTANCES. 431 
 
 who calls for the solemn judgment of the court to furnish that 
 court with something like certainty on which to rest that judg- 
 ment ; he may draw this from the defendant if he can ; he may 
 prove it by witnesses ; he may establish it by documents, but in 
 some way he must show it, or he fails, and his bill must be dis- 
 missed." 
 
 Where the issue i^ directed, on the trial thereof the rule of evi- 
 dence is the same as on the hearing in the chancery court ; and 
 the allegations of the answer responsive to the bill must be taken 
 as true, unless contradicted by two witnesses, or one witness and 
 corroborating circumstances.^ The bill is not proof of its allega- 
 tions, except so far as those allegations are admitted to be true by 
 the answer ; and the answer is not proof of the allegations therein 
 contained except as to facts to which it is positive and responsive, 
 and not contradictory or evasive.^ 
 
 In making up the issue, the order should state that the answer 
 is to be read as evidence, and it has been held that unless this is 
 done it cannot be read.' 
 
 VII. The Effect of an Answer in a Proceeding Devisavit vel 
 non. — The provision of the statute * to impeach or establish a will 
 is, that after a sentence or order rejecting or admitting a will 
 to probate upon an ex park, proceeding, a person interested, who 
 was not a party to the proceeding, may, within two years, proceed 
 by bill in equity, to impeach or establish the will, on which bill a 
 trial by jury may be ordered to ascertain any, and if any how 
 much, of what was so offered for probate be the will of the dece- 
 dent. 
 
 Under the proceeding it was thought by two judges of the court 
 
 ^ This rule has been changed in West Virginia by statute. Tompkin' s Ex' or v. 
 Stephens et al, 10 W. Va. 156. 
 
 ^ Powell and "Wife v. Manson, 22 Grat. 177. 
 
 ■' Black V. Shreve, 2 Beaseley (Jf. J.), 455; 2 Daniel's Chy. Pr., p. 1116, note. 
 
 * I 2544. The limit is five years in West Virginia. Code, Ch. 77, I 32. There 
 has been no substantial change in respect to the matter under discussion since the 
 old statute of 1 Eev. Code, Ch. 104, I 13. 
 
432 ANSWERS IN CHANCERY. § 127 
 
 of appeals/ that the answer to a bill for a devisavit vel non could 
 not be used as evidence for the respondent in respect to facts al- 
 leged in the bill, and thereby urged against the validity of the 
 will, and denied by the answer, except when the facts are suggested 
 to be, or from their nature must be, within the special knowledge 
 of the respondent, and as to them an appeal is made to his con- 
 science, and a discovery specially called for, from him. When, 
 therefore, the bill suggests invalidity in the will, for want of tes- 
 tamentary capacity of the decedent, by reason of age, or defect of 
 intellect, or other cause not produced by the immediate agency nor 
 coming within the particular knowledge of the respondent, the 
 answer asserting the testamentary capacity, and denying the ex- 
 istence of the suggested defect or cause, is not evidence to the jury 
 for the respondent to prove such capacity. 
 
 VIII. The Answer in Proceedings for Relief against IIsMrious o?- 
 Gambling Transactions. — It is provided by statute^ in Virginia 
 that a borrower of money may exhibit a bill against the lender to 
 compel him to discover the rate of interest or consideration for the 
 loan ; and that a judgment creditor who apprehends that he is in 
 danger of loss by reason of usurious dealings on the part of his 
 debtor, may also exhibit his bill in equity to compel a discovery. 
 
 It was formerly also further provided ' that if a bill required 
 no discovery, but prayed an injunction to prevent the sale of 
 property conveyed to secure repayment of money or other thing 
 loaned at a usurious rate, the court should cause an issue to be 
 made and tried at its bar by a jury, whether or no the transaction 
 was usurious, and on the trial of such issue neither the bill nor 
 the answer could be given in evidence. 
 
 This provision of the statute was, however, omitted from the 
 
 ' Kincheloe v. Kincheloe, 11 Leigh, 398-402 ; Lomax on Ex'ors, Vol. 1, p. 211. 
 See also Malone's Adm'r et als v. Hobbs et als, 1 Kob. 369; Coalter's Ex' or et ah v. 
 Bryan and Wife ei als, 1 Grat. 40. 
 
 ' I 2822; Code W. Va., Ch. 96, § 7. See also Post, § 168. 
 ' Code 1873, Ch. 137, § 12. 
 
§ 127 EFFECT OF AN ANSWER IN SPECIAL INSTANCES. 433 
 
 Code of 1887. It was doubtless passed' to meet the case of 
 Thornton v. Gordon, 2 Rob. R. 758, wherein it had been held 
 that an answer in such a case would have the like weight as evi- 
 dence with an answer in any other case in chancery ; ^ and it was 
 also designed to adopt the principles of the case of Marks v. 
 Morris, 2 Munf. 407, which had been overruled by the case of 
 the Bank of Washington v. Arthur, 3 Grat. 173, and Bell v. Cal- 
 houn, 8 Ibid. 22, and it therefore permits such a bill to be filed 
 against the representative of the lender after his death.' 
 
 Where the bill is simply to enforce payment of a debt, and the 
 answer sets up the usury, that being affirmative matter, and not 
 responsive to the allegations of the bill, the answer will not be 
 admitted as evidence of the usury.* 
 
 The rule was that when the bill of a borrower alleged the usury, 
 and called for a discovery, upon the principle that a party is not 
 bound by his answer to subject himself to penalties and forfeitures, 
 the lender might demur to the bill, and refuse to answer unless 
 the plaintiff waived the penalty, and proposed to pay the principal 
 and legal interest ; ° but now the statute provides that the borrower 
 may compel a discovery, but the lender shall only recover the 
 principal due, without interest, and shall pay the costs of the suit.' 
 
 The supreme court of the United States ^ has held that a bill 
 
 » Matthews' Digest, Vol. 2, p. 470. 
 
 " Gilliam v. Qay et ak, 3 Leigh, 590; Powell and Wife v. Manson, 22 Grat. 190. 
 ' Brockenhrough's Ex'ors v. Spindle's Adm'r, 17 Grat. 21. See also Turner v. 
 Turner, 80 Va. 382. 
 
 * Crenshaw's Adm'r v. Clark et ak, 5 Leigh, 67. See also Chambers v. Chal- 
 mers, 4 GiU. & John. 420; 23 Am. Dec. 572. 
 
 * Belton V. Apperson et al, 26 Grat. 214. 
 
 ^ § 2822; Code W. Va., Ch. 96, ? 7. When payments have been made on a 
 usurious contract and the borrower himself applies the payment to the interest, or 
 the lender so applies it with the assent of the borrower, the appropriation so made 
 win not be disturbed, unless within one year thereafter a suit be instituted by the 
 borrower for its recovery, or a suit be brought by the lender within that period, in 
 which case the borrower may set it off against the demand for which he is sued. 
 Crabtree ». Building Ass'n, 95 Va. 670; Munford v. McVeigh, 92 Va. 446. 
 
 'Brown v. Swarm, 10 Peters, 497; Stanly v. Gadsby, 10 Peters, 521. 
 
 28 
 
434 ANSWEES IN CHANCERY. § 127 
 
 will not lie under the Virginia statute ^ to compel a discovery of 
 usury when the complainant is able to prove the facts sought from 
 the conscience of the defendant by other testimony, and that it is 
 a material averment under the act that such facts cannot be proved 
 by other testimony. 
 
 When the answer sets up usury as a defence, it must be clearly 
 and distinctly alleged, although not with all the formal strictness 
 of a plea of usury at law ; ^ and to convict one of usury, it must 
 be proved beyond a rational doubt to the contrary.^ 
 
 "With regard to gaming transactions, the statute * makes provi- 
 sion, that if any person shall lose to another within twenty-four 
 hours seven dollars or more, or property of that value, and shall 
 
 ' The language of the act, aa quoted in the first case cited, is, "Any borrower of 
 money or goods may exhibit a bill in chancery against the lenders, and compel 
 them to discover on oath the money they really lent; and all bargains, contracts, 
 or shifts which shall have passed between them relative to such loan or the re-pay- 
 ment thereof, and the interest and consideration of the same; and if, thereupon, it 
 shall appear that more than lawful interest was, reserved, the lender shall be obliged 
 to accept his principal money without interest or consideration, and pay costs, but 
 shall be discharged of aU the other penalties of this act. ' ' Afterwards the statute 
 provided that ' 'Any borrower of money or other thing may exhibit a bill in equity 
 against the lender, and compel him to discover upon oath the money or thing really 
 lent, and all bargains, contracts, or shifts relative to such loan, and the interest or 
 consideration of the same; and if it appear that more than lawful interest was re- 
 served, the lender shall recover only his principal money or other thing without 
 interest, and pay the costs of suit." Code 1873, Ch. 137, ? 9. Now both in Vir- 
 ginia and West Virginia it is further proved that "If property has been conveyed 
 to secure the payment of a debt, and a sale thereof is about to be made, or is ap- 
 prehended, an injunction may be awarded to prevent such sale pending the suit." 
 § 2822; Code W. Va., Ch. 96, ? 7. Though the statute of usury at the time the 
 contract was made declares the contract to be null and void, if at the time of the 
 decree in the case the statute has been amended, and only avoids the contract for 
 the interest, the decree should be for the principal loaned, with interest from the 
 date of the decree. Mosby v. St. Louis M. Ins. Co., 31 Grat. 629. 
 
 ^ Smith V. Nicholas, &c., 8 Leigh, 353; Crenshaw's Adm'r a. Clark et als, 5 
 Leigh, 69. The strictness of the form of the plea of usury at law is now much 
 relaxed. See ? 2821; Code W. Va., Ch. 96, ? 6. 
 
 "Brockenborough's Ex'ors v. Spindle's Adm'r, 17 Grat. 21. 
 
 * U 2837, 2838; Code W. Va., Ch. 97, U 2-3. As to the effect of such a stat- ' 
 ute which also contained a provision for avoiding such a contract in the hands 
 of an assignee, see the case of Chapin v. Dake, 57 lU. 295; 11 Am. R. 15. 
 
§ 127 EFFECT OF AN ANSWER IN SPECIAL INSTANCES. 435 
 
 pay or deliver the same, such loser may file a bill in equity against 
 the winner, who shall answer the same, and upon discovery and 
 re-payment of the money or property so won, or its value, the 
 winner shall be discharged from any forfeiture or punishment 
 which he may have incurred for winning the same. 
 
 IX. Answers as Evidence between Co-defendants. — The general 
 rule is, that the answer of one defendant cannot be read in evi- 
 dence ' against a co-defendant if there is no joint interest, privity, 
 fraud, collusion or combination between them ; but the answer of 
 a defendant, whieh is responsive to the bill, is admissible in favor of 
 a co-defendant, more especially where such co-defendant, being 
 the depositary of a chattel claimed by the plaintiff, defends him- 
 self under the title of the other defendant.^ 
 
 The principle of the distinction seems also to be, that while the 
 answer of one defendant ip not evidence for the plaintiff against a 
 co-defendant, yet when responsive to the bill, it is evidence against 
 the plaintiff for the responding defendant, and hence enures to 
 the benefit of the co-defendant when it destroys the plaintiff's 
 claim ; ' and this more especially when the co-defendant claims 
 under the responding defendant.* 
 
 In Greenleaf on Evidence, § 283, it is laid down as a general 
 rule, that the answer of a defendant cannot be read for or against 
 a co-defendant ; but the universality of the rule refusing the an- 
 swer as evidence for a co-defendant is very much questioned, and 
 is declared certainly to yield to the circumstances we have men- 
 
 ^ It cannot be read at all as an admission. I Daniel' s Chy. Pr. , 841 ; Jones v. 
 Hardesty, 10 Gill. & J. 404; 32 Am. Dec. 180. An admission by an administra- 
 tor in bis sworn answer is evidence against his sureties as administrator in another 
 suit brought to recover the fund from him and his sureties, although the sureties 
 were not parties to the suit in which said admission was made. Gilmer v. Baker, 
 24 W. Va. 72. See also Fisher v. White, 94 Va. 236; Wytheville Crystal I. & D. 
 Co. V. Frick & Co., Va. ; 30 S. E. R 491. 
 
 '1 Daniel's Chy. Pr. 841, and cases cited. Dade v. Madison, 5 Leigh, 401; 
 Pettit V. Jennings et als, 2 Bob. 706; Lingan v. Henderson, 1 Bland. 236. 
 
 ' Cartinge v. Baymond et al, 4 Leigh, 579; Greenleaf on Evidence, Vol. 3, p. 
 295, note. 
 
 * Field V. Holland, &o., 6 Cranch, 8, 24; Pettit v. Jennings, 2 Bob. 712. 
 
436 ANSWERS IN CHANCERY. § 127 
 
 tioned. In the same section the learned author further says, that 
 the rule forbidding an answer to be read against a co-defendant 
 " does not apply to cases where the defendant claims through him 
 whose answer is oifered in evidence, nor to cases where they have 
 a joint interest, either as partners or otherwise, in the transaction." 
 Commenting upon this language, Judge Baldwin, in the case of 
 Pettet V. Jennings, &c., 2 Rob. 712, declared that the rule exclud- 
 ing the answer as evidence against a co-defendant covers the case 
 of an assignor and an assignee, and the answer of the former 
 would no more be allowed to prejudice the latter than would his 
 declarations in pais made after the assignment, and this not even 
 though the bond assigned be alleged to have been given in a gam- 
 ing transaction.^ 
 
 Interpleader suits form an exception to the rule, for in them the 
 answer of one defendant may be read against a co-defendant, to 
 show that adverse claims are made.^ The form of a defendant's 
 answer, too, may make his co-defendant's answer evidence against 
 him, as when he refers to his co-defendant as able to give a better 
 account of the matter than he can,^ or when in his answer he refers 
 to the answer of his co-defendant.^ When, too, several persons 
 are mutually interested as partners, or jointly liable, as the co- 
 obligors in a bond, the declarations or answer of one are admissible 
 against the other ; but this will not be the case with the answer of 
 a defendant who has become bankrupt, and ceased to be a partner ; 
 nor on a bill in equity by one partner against his co-partners for 
 an account, can an answer by one of the defendants be evidence 
 to charge another." 
 
 ' See also Hoomes v. Smock, 1 Wash. 389, Dade's Adm'r v. Madison, 5 Leigh, 
 401. For the effect of the declarations of assignors upon the rights of assignees, 
 see 1 Barton's Law Pr., p. 641; Paige v. Cagwin, 7 Hill, 361; 42 Am. Dec. 68. 
 Effect of declaration of the former owner of a chattel. Id., p. 80, notes; Horton 
 V. Smith, 8 Ala. 73; 42 Am. Dec. 628; note, p. 631. Declaration of the former 
 owner of property as affecting the title thereto. Abney v. Kingsland, 10 Ala. 355; 
 44 Am. Dec. 491; note, p. 497. 
 
 ' 1 Daniel's Chy. Pr., p. 843. » Ibid. 
 
 * 1 Daniel's Chy. Pr., p. 843, note. " 1 Daniel's Chy. Pr., p. 842, note. 
 
§ 127 EFFECT OF AN ANSWER IN SPECIAL INSTANCES. 437 
 
 Where a bill was filed to set aside a conveyance by a husband 
 for the benefit of his wife, and to subject the property to the pay- 
 ment of his debts, the trustee answered the bill, but the wife failed 
 to do so, and upon its being contended that the bill became thereby 
 taken for confessed against his wife, the court held that the answer 
 of the trustee put the matter of the bill sufficiently in issue for the 
 benefit of the wife, and of all others claiming under the deed.' 
 
 X. The Answer on a Motion for the Appointment of a Re- 
 ceiver. — It has been laid down as a general rule, that when the 
 application for a receiver is made after the coming in of the an- 
 swer, and the equities of the bill, upon which the appointment of 
 a receiver is sought, are fully denied by the defendant's answer 
 under oath, and the evidence adduced in support of the bill does 
 not overcome the denial of the answer, the court will refuse to 
 appoint a receiver ; and that if a receiver has already been ap- 
 pointed, he will be discharged upon the coming in of the defend- 
 ant's answer fully denying the equities of the bill, the rule being 
 declared to be analogous to the well settled rule which governs 
 applications for the dissolution of interlocutory injunctions, which 
 is that the defendant is entitled to a dissolution of the injunction 
 upon filing his answer fully denying the equities of the bill.' So 
 where the application is made for a receiver in the case of a part- 
 nership, it is said that the relief will usually be denied when the 
 equities of the plaintiff's case are fully met and negatived by the 
 defendant's answer.^ 
 
 XI. The Answer to a Bill for an Injv/nction. — Although the 
 general rule as to filing an answer is that it must be done in court 
 or at rules, yet an injunction proceeding is an exception thereto ; 
 
 1 Johnston v. Zane's Trustee et ah, 11 Grat. 568. This was not a case, however, 
 in which the ground of the complaint was that the conveyance was purely volun- 
 tary, where, as we have seen, the burden to show the consideration is on the wife. 
 Ante, this chapter, ? 127, Div. 3. 
 
 ' High on Receivers, 2 24. 
 
 = Ibid., § 491, 515. For the rule in England, see 2 Daniel's Chy. Pr., p. 1736. 
 For the rules of evidence on the appointment of receivers, see Post, i 146. 
 
438 ANSWEKS IN CHANCERY. § 127 
 
 and as the bill may be filed and the restraining order awarded in 
 vacation, so the answer may be filed in vacation, and the defendant 
 may then be entitled to the benefit of it ; ^ and it has been held 
 that on the filing of the bUl the defendant may instantly put in 
 his answer, so as thereby to prevent the granting of an injunction 
 as prayed.^ 
 
 The bill in such cases is presented to the judge when the appli- 
 cation is ex parte ; and it is then sent to the clerk, who issues the 
 process on the order when the condition of giving bond, etc., has 
 been complied with. The answer is sometimes filed with the clerk, 
 but either upon an ex parte application for an injunction, or on one 
 made after notice served, the answer is often presented to the judge ; 
 and this may be the case even after an injunction has been granted, 
 and a motion is made to dissolve it. 
 
 Upon a motion to dissolve on bill and answer, the allegations of 
 the bill not denied by the answer are taken to be true.' They 
 stand upon the affidavit of the plaintiff, and are entitled to as 
 much weight on a motion to dissolve as upon the original motion 
 for an injunction. 
 
 A declaration by the defendant that he does not know or admit 
 any particular allegations of the bill to be true, is not a denial, 
 although it is sufficient to put the plaintiff to the proof of the fact 
 upon the hearing ; ^ and a reasonable time will be given to the 
 plaintiffs to produce the proof so called for.'' 
 
 Where a motion to dissolve is on bill and answer, and the an- 
 
 ' Goddin v. Vaughan'g Ex's et al, 14 Grat. 129; Eandolph v. Randolph, 6 Band, 
 198; Hayzlett v. McMillan elals, 11 W. Va. 464; Zell Guano Co. v. Heatherly, 38 
 W. Va. 410. Except in the case of a biU or answer in an injunction case, aU 
 pleadings must be filed either at rules or in court. National Bank v. Distillery Co., 
 41 W. Va. 530. 
 
 2 Hall V. McPherson, 3 Bland. 529. 
 
 'B. & O. B. E. Company v. The City of Wheeling, 13 Grat. 40; Ludington v. 
 Tiffany, 6 W. Va. 11. 
 
 * Randolph v. Eandolph, 6 Band. 198. 
 
 5 Ibid. ; Eoberts v. Anderson, 2 Johns. Chy. R. 202; Apthorpe, &c. r. Comstock, 
 &c., 1 Hopkins' Chy. R. 143; 8 Cow. 386; Rodgers, &c. )'. Rodgers, &c., 1 Paige, 
 426; Ward v. Van Bokkelen, 1 Paige, 100; Grimstone v. Carter, &c.,-3 Paige, 421. 
 
§ 127 EP'I'ECT OP AS ASSWEE IS SI*ECtAL INSTANCES. 43il 
 
 swer denies all the equity of the bill, the injunction is dissolved 
 of course ; * but except in answers of executors or administrators/ 
 a denial from information and belief is not sufficient, nor is an 
 evasive or contradictory answer sufficient ; nor one in which there 
 is an extreme improbability in the defendant's statement ; and it 
 is always a good answer to an application to dissolve an injunction 
 upon bill and answer, that the equity of the bill upon which the 
 injunction rests is not denied by the defendant (although no ex- 
 ceptions have been filed) ; or that any material allegation of the 
 injunction bill remains unanswered.' 
 
 An injunction is not dissolved, of course, even upon a full de- 
 nial of the equity of the bill if the court can see in the facts dis- 
 closed good reason for retaining it, or if the plaintiff has adduced 
 auxiliary evidence of his right ; ^ but if the motion to dissolve is 
 made without any answer by the defendant, all the allegations of 
 the bill must be taken as true." 
 
 XII. The Answer to a Bill of Discovery. — We have already 
 observed, that the obligation upon a defendant to answer applies 
 as well to bills of discovery as to ordinary bills for relief, and the 
 defendant is compelled to respond fully to all the allegations and 
 enquiries thereof, except to such as by plea, demurrer, or answer, 
 he is excused from replying to, and in all such cases the answer 
 has the same effect,' unless it is expressly otherwise provided, as 
 
 'Hoflfeaan v. Livingston, 1 Johns. Chy. E. 211; Mintuin v. Seymour, 4 Johns. 
 Chy. E. 497; Gibson v. TUton, 1 Bland. 352; Haydett v. McMillan et al, 11 W. 
 Va. 464; Deloney i;. Hutcheson, &o., 2 Band. 183; Norths' Ex' or v. Perrow, 4 
 Eand. 1; Hogan u. Duke et al, 20 Grat. 244; Moore v. Steelman, 80 Va. 340; 
 Thomas, Inspector, v. Eowe, Va. ; 22 S. E. E. 157. 
 
 " Coale V. Chase, 1 Bland. 136. 
 
 "Daniel's Ohy. Pr., Vol. 2, p. 1676-1677, notes; Chase ti. Manhardt, 1 Bland. 
 333; Muller's Adm'r v. Stone, 84 Va. 839; Spencer v. Jones, 85 Va. 172. 
 
 ' Daniel' s Chy. Pr. , Vol. 2, p. 1676-1677, notes. For practice in proceedings by 
 injunctions, see Post, Ch. 8; Noye v. Vickers, 39 W. Va. 30. As to when an in- 
 junction may be regarded as dissolved by implication, see Atkinson v. Beckett, 36 
 W. Va. 438. 
 
 ' Peatross v. M'Laughlin, 6 Grat. 64. 
 
 « Neal V. Hagthrop, 3 Bland. 567. 
 
440 ANSWEES IN CHANCEEY. § 128 
 
 it has to a bill of relief mainly.* But the effect given to an 
 answer does not apply to mere technical bills of discovery where 
 no relief is prayed, but the discovery is required to be used in 
 some trial at law, for then the plaintiff has his election to use the 
 answer or not.^ 
 
 The Effect of Striking Out an Answer. 
 
 § 128. We have already seen that if an exception to an answer 
 as insufficient is sustained, the defendant should be directed to 
 answer more fully ; time should be given to file the answer, and 
 no decree on the merits should be rendered until he has had an 
 opportunity of doing so.* In the United States courts the action 
 of the lower court sustaining the exceptions to an answer, and 
 ordering it to be more specific, is regarded as a matter resting in 
 the discretion of those courts, and not a subject of appeal ; but if 
 the lower court strikes out the answer and proceeds to decree upon 
 the merits, while the propriety of granting time to file a new 
 answer would not be appealable, and while that rule has been 
 sometimes held to apply also to an order refusing to strike out an 
 answer, yet an order striking out an answer is regarded as a proper 
 subject for appellate supervision, and the action of the lower court 
 on that subject has been reviewed.* 
 
 The Issue upon an Answer. 
 
 § 129. It is provided by statute in Virginia,^ that a plaintiff in 
 equity may have a case set for heariug on the answer, or upon a 
 
 1 But as to a bill of discovery to obtain evidence merely, ste Ante, Ch. 5, J 102, 
 and this chapter, I 126, and Lyons v. Miller, 6 Grat. 438. Instance in which an 
 answer to a bill of discovery was held evasive and insufficient: Wilson v. Wood- 
 ruff, 5 Mo. 40; 31 Am. Dec. 194. 
 
 " Thornton v. Gordon, 2 Bob. E. 757; Powell and Wife v. Manson, 22 Grat. 190. 
 
 'Jnle, this chaptei-, § 125; Johnston, Trustee, &c. v. Wilson's Adm'r et als, 29 
 Grat. 390. 
 
 * Fuller et al v. Claflin et al, 3 Otto, 14. 
 
 5 I 3291. Two months in West Virginia. Code, Ch. 125, § 50. • 
 
§ 129 THE ISSUE UPON AK ANSWER. 441 
 
 general replication thereto, as he may prefer ; and if one month 
 elapse after the answer is filed without the case being set for hearing 
 by the plaintiff, and without exceptions being filed, the defendant 
 may have the cause set for hearing as to himself. 
 
 It is further provided ' that no decree shall be reversed for want 
 of a replication to the answer although the defendant has or has 
 not taken depositions, if there has been a hearing on the merits. 
 
 While, therefore, there is no obligation^ upon the plaintiff to 
 enter up a replication, and while for lack of one a case cannot be 
 reversed where the defendant has taken depositions as if there had 
 been one, or the cause has been heard on the merits, yet the effect 
 of his failure to do so will be to cause the allegations of fact and 
 the denials of the answer to be taken as true.' 
 
 Where the defendant by his answer admits the plaintiff's case, 
 or such material parts thereof as enable the latter to go to hearing 
 without the examination of witnesses, no replication is needful ; 
 but as in such case the defendant, by the absence of a replication, 
 is precluded from substantiating the answer by evidence, the whole 
 of it is taken to be true, and the plaintiff should, therefore, look 
 to the answer to see that the effect of the admissions therein is not 
 avoided by the new matter which it may contain.* 
 
 Special replications which were formerly resorted to to set up 
 
 ' ? 3450. In West Virginia ' ' when the defendant has taken depositions as if 
 there had been a replication (Code, Ch. 134, § 4; which was formerly the rule in 
 Virginia), or at the instance of a party who has taken depositions, for any infor- 
 mality, &c." when there has been a hearing upon the merits, &c. See also Jones 
 V. Jones, 6 Leigh, 174. A decree reciting that a cause was "brought on to be 
 heard upon the bill, answer, demurrer, exhibits, &c.," the " &c." was held to refer 
 to the replication to the answer. Coles and Wife j). Hurt, 75 Va. 380. 
 
 " Minor's Institutes, Vol. 4, Pt. 2, p. 1196. 
 
 * Cocke ei als v. Minor et als, 25 Grat. 246; Moore v. Wheeler, 10 W. Va. 35; 
 Contee v. Dawson, 2 Bland. 264; Estep v. Watkins, 1 Bland. 486; Cleggett v. Kittle 
 et al, 6 W. Va. 452; McKim v. Odom, 3 Bland. 407; Cunningham v. Hedrick, 23 
 W. Va. 579; Jones v. Degge, 84 Va. 685. See also Hartman v. Evans, 38 W. 
 Va. 669. 
 
 * Cooper's Eq. H. 329; Kennedy v. Baylor, 1 Wash. 162; Pickett v. Chilton, 5 
 Munf. 467; Coleman v. Lyne, 4 Band. 456; Shirley v. Long, 6 Kand. 764. 
 
442 ANSWERS IN CHANCEEY. § 129 
 
 matter in avoidance of what is stated in the plea or answer, have 
 long since fallen into disuse/ and now, if the complainant con- 
 ceives from any matter offered by the plea or answer that his bill 
 is not properly adapted to his case, he may obtain leave to amend 
 his bill, and suit it to the defence, or he may file a supplemental 
 bill.^ 
 
 The effect of entering up a replication is to admit the sufficiency 
 of the defendant's answer, and to exclude all exceptions thereto, 
 unless the replication is first withdrawn, and it puts in issue all 
 the allegations of the answer which are proper to be considered in 
 the cause.^ 
 
 In Virginia the replication is put in orally, and unless other- 
 wise directed by the plaintiff, is entered up as a matter of course 
 by the clerk.* * 
 
 In the United States courts the replication is required to be 
 filed in writing," and if the plaintiff omit to do bo within the time 
 prescribed, the defendant is entitled to an order as of course for 
 the dismission of the suit ; and it shall thereupon stand dismissed, 
 unless the court or judge thereof shall, upon motion, for cause 
 shown allow a replication to be filed nwic pro tune, the plaintiff 
 submitting to speed the cause, and to such other terms as may be 
 
 ' Lewis' Ex' or v. Bacon's Legatee, 3 H. &M. 104; Hudaons v. Hudsons' Adm'r, 
 6 Munf. 352; Miller's Heirs v. M'lntyre, &o., 6 Peters, 61; James v. M'Kemon, 
 6 Johns. E. 543; Mitf. Plead. 19, 255; Elliott v. Traliern, 35 W. Va. 634. 
 
 * Mitf. Plead. 19, 255. See also Ante, Ch. 5, i 105-106. On all these points, 
 see Minor's Institutes, Vol. 4, Pt. 2, p. 1196, and the cases there cited; and Brown 
 V. Eicketts, &c. , 2 Johns. Chy. E. 425. But for the practice in West Virginia, see 
 Its Code, Ch. 125, | 85, and Vanbibber v. Beirne et als, 6 W. Va. 163; Huffinan 
 V. CoUison's Adm'r, &c., 6 W. Va. 301; Snyder v. Martin ei cd, 17 W. Va. 276; 
 Enoch V. M. & P. Co., 23 W. Va. 314. See also Coles v. Hurt, 75 Va. 380. 
 
 _ * Coleman v. Lyons, 4 Eand. 454. Where the allegations in the answer are not 
 responsive to the bill, see Humes v. Scruggs, 4 Otto, 22. 
 
 * The mention of it in the decree is a mere statement of fact, and not an order, 
 and when it has been omitted, even after the cause has been submitted to the court, 
 the decree may, on motion, be set aside, and be heard upon the pleadings as they 
 were intended to be. Harrison's Ex' or et ah v. Price's Ex' or et al«, 25 Grat. 553. 
 
 "^Minor's Institutes, Vol. 4, Pt. 2, p. 1197; 1 Poster's Fed. Pr., p. 271. 
 
§ 129 THE ISSUE UPON AN ANSWER. 443 
 
 directed.^ No special replication is filed to any answer, and if 
 any matter alleged in the answer shall make it necessary for the 
 plaintiff to amend his bill, he may have leave to amend the same, 
 with or without the payment of costs, as the court or the judge 
 thereof may in his discretion direct.^ 
 
 To go to a hearing without a replication is an irregularity which 
 would be regarded as fatal to a case in the United States courts ; * 
 but where the replication has not been filed, and the case has been 
 heard without it in the court below, it will not be permitted to be 
 objected to for the first time in the supreme court of appeals, so as 
 to give the case there the effect of being heard without a replica- 
 tion.* No particular form is required for a replication, and a 
 paper put in after the answer was filed, and after part of the testi- 
 mony had been taken, stating that the plaintiffs in the cause thereby 
 joined issue with the defendants (naming them), " and will hear 
 the cause on bill, answer and process against the defendants," was 
 held to be a sufficient replication.^ A party cannot, however, set 
 up in his replication a claim not in any way made in the bill, and 
 the granting of which he asks in his replication only in the event 
 that the case made in the bill fails." 
 
 1 66th Rule in Equity, Dest/s Fed. Procedure, p. 298; 1 Foster's Fed. Pr., § 157. 
 
 ' 45th Rule in Equity, Desty's Fed. Procedure, p. 290. In West Virginia there 
 is a special provision for a reply to new matter set up in respondent's answer. 
 Code, Ch. 125, § 35. 
 
 ° Washington B. E. v. Bradleys, 10 Wall. 302. But not after a cause has been 
 set down for hearing on a biU and answer. Reynolds v. Crawfordsville Bank, 112 
 U. S. E. 405. 
 
 *Fretz V. Stoover, 22 Wall. 198; Porqueran v. DonnaUy, 7 W. Va. 114. 
 
 ' Clements v. Moore, 6 WaU. 299. 
 
 ' Waner v. Van Brunt, 19 Wall. 646. In the United States courts, where the 
 general replication is filed, the cause shall be deemed to all intents and purposes at 
 issue, without any rejoinder or other pleading on either sides (66th Equity Rule, 
 Desty's Fed. Procedure, p. 298), and in Virginia there is the following statute: 
 " When the plaintiff takes issue on the defendant's pleading or traverses the same, 
 or demurs, so that the defendant is not let in to allege any new matter, the plaintiff 
 may, without giving a rule to rejoin, proceed as if there were a similiter or joinder 
 in demurrer, and in any action where for want of. a plea an office judgment would 
 have been entered, it shall be the duty of the clerk, if a plea has been filed, to place 
 
444 ANSWEES IN CHANCERY. § 130 
 
 Amendment of an Answer. 
 
 §130. The courts do not easily suffer amendments to be made 
 to sworn answers, unless it be of small matters of form, mistakes 
 of dates, or verbal inaccuracies, which the court is satisfied have 
 occurred through inadvertence ; and in respect to material points, 
 or where it is sought to change essentially the grounds of defence 
 taken in the original answer, amendments are admitted with great 
 reluctance.' Amendments to introduce documents which have been 
 omitted by mistake, or to put in issue facts which should properly 
 have been put in issue,^ are readily allowed ; but to admit amended 
 answers, letting in new facts and defences wholly dependant on 
 parol evidence, the court requires very cogent circumstances, and 
 such as repel the notion that the. defendant designs to evade the 
 justice of the case, or to set up new and ingeniously contrived de- 
 fences and subterfuges.' 
 
 Amendments have been allowed where new matter has come to 
 the defendant's knowledge since the answer was put in, in cases 
 of surprise, as when an addition has been made to the draft of an 
 answer after the defendant has perused it ; where it was clearly 
 established that an admission of assets had been made by mistake 
 and through the carelessness of the solicitor's clerk ; ■* for the pur- 
 pose of setting up the statute of limitations in bar of the plaintiff's 
 
 such action upon the court docket; and in any such action so placed upon the court 
 docket the pleadings may be matured in court, subject to such terms as to a con- 
 tinuance as the court in its discretion may impose upon either party." ^ 3268. See 
 also Code W. Va., Ch. 125, i 26. 
 
 1 Story's Eq. PI., § 896; McKimt). Thompson, 1 Bland. 150; Minor" s Institutes, 
 Vol. 4, Ft. 2, p. 1194. 
 
 ' Story's Eq. PL, i 902. 
 
 ' Mmor's Institutes, Vol. 4, Pt. 2, p. 1194. See also McKay v. McKay, 33 W. 
 Va. 736; Fouthy v. Poar, 35 W. Va. 70; Elder's Ex'ors v. Harris,- 76 Va. 187. 
 
 'Daniel's Chy. Pr., Vol. 1, p. 778, 779; Edwards v. M'Leary, 2 V. & B. 255; 
 Strange v. Collins, Ibid. 163; Livesay v. Wilson, 1 V. & B. 149; Liggon v. Smith, 
 4 H. & M. 405. 
 
§ 130 AMENDMENT OF AN ANSWER. 445 
 
 claim ; ^ and to explain equivocal expressions used in the first 
 answer.^ 
 
 A distinction is made between amendments because of admis- 
 sions of matters of law and matters of fact,^ and it is said that the 
 courts have never admitted amendments when the application has 
 been made merely on the ground that the defendant at the time he 
 put in his answer was acting under a mistake of law.* In the 
 case, however, of Jackson's Assignees v. Cutwright, &c., 5 Munf. 
 308, the defendant desired by way of amendment to rely upon the 
 statute of frauds and the statute of limitations. He swore that 
 he had from the beginning relied on the matters contained in his 
 amendment ; that he had instructed his attorney to use them for 
 his defence, and they were omitted through the mistake of his 
 counsel, who conceived that a defence under either statute could 
 be made without specially relying on it. Under these circum- 
 stances the court was of opinion that the amendment being a 
 matter of law, and that from such there could be no danger of 
 perjury, permitted the amendment to be made. 
 
 The application to amend an answer rests in every case in the 
 sound discretion of the court, and except in immaterial matters 
 ought to be narrowly and closely inspected, and a just and neces- 
 sary case clearly made out.^ The former practice in making 
 amendments was to withdraw the former answer, and file, a new 
 one ; but now the old answer is retained in the cause, and a new 
 or supplemental answer containing the amendments is put in 
 
 1 White V. Turner's Adm'r, 2 Grat. 502. But see contra, 1 Daniel's Chy. Pr., 
 p. 779, note. 
 
 ' Murcock's Case, 2 Bland. 461. See also Tracewell v. Boggs el al, 14 W. Va. 254. 
 
 sStor/sEq. PI., §897, 898. 
 
 *1 Daniel's Chy. Pr., p. 779. A non-resident who appeared and answered an 
 original biU was held riot bound by the averments of an amended bill subsequently 
 filed, which affected his interests. Conrad v. Buck, 21 W. Va. 396. 
 
 ^ Bowen v. Cross, 4 Johns. Chy. K. 375; Gouvemeur, &c. v. Elmendorf, &c., 
 4 Johns. Chy. R. 357 ; Wells v. Woods, 4 Ves. 401; Roemer v. Simon, 5 Otto, 
 220. • 
 
446 ANSWEES IN CHANCEEY. § 130 
 
 also/ and the supplemental answer is confined strictly to the cor- 
 rection of the matters as to which it is permitted to be filed.^ 
 
 • Jennings v. Merton College, 8 Ves. 19; Kidley v. Obee, Wightwick, 32; 1 Dan- 
 iel's Chy. Pr. 782; Minor's Institutes, Vol. 4, Pt. 2, p. 1195; Story's Eq. PI., 
 i 901. 
 
 ' 1 Dan. Chy. Pr., p. 782. For amendment of answer in United States courts, 
 see 60tli Equity Kules, Dest/s Fed. Procedure, p. 296; 1 Abb. U. S. Pr., p. 142; 
 1 Foster's Fed. Pr., J 167. 
 
CHAPTEE yill. 
 
 INJUNCTIONS. 
 
 J 131. The Application for an Injunc- 
 tion. 
 
 2 132. The Injunction Order and Pro- 
 ceedings. 
 
 § 133. The Injunction Bill. 
 
 ? 134. The Parties to an Injunction 
 Bill. 
 
 2 135. The Grounds for an Injunction. 
 
 i 136. The Effect of an Injunction. 
 
 2 137. The Evidence on an Injunction 
 Proceeding. 
 
 § 138. The Injunction Bond. 
 
 § 139. Dissolution of an Injunction. 
 
 § 140. Reinstatement of an Injunction. 
 
 § 141. Appeals from Injunction Orders. 
 
 ^ 142. Costs in Injunction Proceedings. 
 
 2 143. Damages in Injunction Proceed- 
 ings. 
 
 The Application for an Injunction. 
 
 § 131. An injunction is applied for before the proper court in 
 term, or to the judge in vacation ; ^ and when a circuit or corpo- 
 ration court, or a judge thereof, shall refuse to award an injunc- 
 tion, a copy of the proceedings in court, and the original papers 
 presented to the judge in vacation, with his order of refusal, may 
 be presented to a judge of the court of appeals, who may there- 
 upon award the injunction.^ 
 
 While the application for an injunction may be made either in 
 term or in vacation, yet the court or judge may require that rea- 
 sonable notice shall be given to the adverse party, or his attorney- 
 
 ' As to what is the proper court or who is the proper judge, see Ante, Ch. 1, ? 
 13; ? 3436; Code W. Va., Ch. 133, ? 6. It has been held that an injunction may 
 lawfully be issued on Sunday, where it is necessary to prevent an irreparable injury 
 to property. Langabier v. The Kailroad Company, 64 111. 243; 16 Am. K. 550. 
 "When a jud'ge of the court of appeals grants an injunction which had been refused 
 by a lower court or judge, the lower court may treat it as its own order, and may 
 increase the bond fixed by the judge of the court of appeals. Ruffin v. The Com- 
 monwealth Bank, 90 Va. 708. An injunction against enforcing the mandate of the 
 court of appeals may be granted by the circuit court if such mandate be obtained 
 surreptitiously or by surprise, or contrary to contract. Bank of Kentucky v. Han- 
 cock, 6 Dana, 284; 32 Am. Dec. 76. 
 
 ' Code, 2 3438; Code W. Va., Ch. 133, ? 7. 
 
448 INJUNCTIONS. § 131 
 
 at-law or in fact, of the time and place of moving for it before 
 the injunction is awarded, if in the opinion of the court or judge 
 it be proper that such notice should be given. ^ In the United 
 States courts an injunction cannot be granted without notice,^ ex- 
 cept where there is danger of irreparable injury from delay there 
 may be an order restraining the act sought to be enjoined until 
 the decision on the motion.^ 
 
 The usual mode of presenting an application for an injunction 
 is by bill or petition, and in vacation it is never presented except 
 in this way.* It may, however, be awarded in term on motion," 
 and sometimes in a pending suit it is awarded by the court of its 
 own motion. But however applied for, it is provided by statute ' 
 that no injunction shall be awarded in vacation or in court in a 
 case not ready for hearing, unless the court or judge be satisfied 
 by affidavit or otherwise of the plaintiff's equity.'' 
 
 Every judge of a circuit or corporation court has general juris- 
 diction in awarding injunctions, whether the judgment or proceed- 
 ing enjoined be of a superior^ or inferior court in or out of his 
 
 ' ? 3440; Code W. Va., Ch. 133, ? 3. 
 
 ' Daniel's Chy. Pr., Vol. 2, p. 1614; Desty's Fed. Procedure, p. 294, Eule 55, 
 and Ibid. ? 719, p. 110. 
 
 'Best/ 3 Fed. Procedure, § 718, p. 109. See also McFarland, &c. »>. Dilly, &c. 
 5 W. Va. 135; C. & O. B. E. Co. v. Patton, Ibid. 234; C. & O. E. E. Co. v. 
 Huse et al, Ibid. 579. 
 
 'Binney's Case, 2 Bland. 104. 
 
 5 Daniel's Chy. Pr., Vol. 2, p. 1666. 
 
 « ? 3440; Code W. Va., Ch. 133, § 3. 
 
 ' Where the bill was verified only by the affidavit of the agent of the plaintiff, 
 "that the facts and allegations contained in the bill, so far as stated therein on his 
 own knowledge, are true; and so far as stated on information, he believes thenT to 
 be true," it was held that the injunction ought not to have been awarded, there 
 bemg in the biU no facts alleged of which the agent had any personal knowledge, 
 so far as appeared on the face of the bill, and no exhibits sustaining its material 
 allegations. Shank v. Knight et al, Trustees, 12 W. Va. 667. 
 
 ' The court of appeals is the only supmm- court to these, and of its judgments 
 there can be no complaint of any error, either in it or behind it (Boiling v. Lersner, 
 26 Grat. 55) ; a case might arise, however, in which it would be proper to enjoin 
 such a judgment. 
 
§ 131 THE APPLICATION FOE AN INJUNCTION. . 449 
 
 circuit or corporation, or the party against whose proceeding the 
 injunction is asked resides in or out of the same. 
 
 Every injunction order must be directed to the clerk of the 
 court of the county or corporation in which the judgment was 
 rendered, or the act or proceeding sought to be enjoined is to be 
 done, or is doing or apprehended.^ But the provision of the statute 
 requiring the order to be so directed applies only to a pure bill of 
 injunction, and not to a bill asking other relief, to which the in- 
 junction sought is merely ancillary." Thus, where in a suit in the 
 circuit court of Richmond city, the bill sought to invalidate a deed 
 of trust, prayed for general relief, and sought also by injunction 
 to restrain the sale of certain property, whose location did not 
 definitely appear, and all the parties, except perhaps one, resided 
 in the city, it was held that the circuit court of Richmond city 
 had jurisdiction.' 
 
 The learned judge who delivered the opinion of the court in 
 that case thought that even where the proceeding is a pure injunc- 
 tion suit, the statute would not take away or impair the power of 
 a court of chancery of general jurisdiction to take cognizance of 
 a case submitted to its decision by the consent of all parties,* espe- 
 cially where all of them reside within its territorial limits ; and 
 if the plaintiffs elected to bring the injunction suit in the county 
 where all the parties reside, instead of in the county where the 
 thing sought to be enjoined was being done, while the defendant 
 might object to the jurisdiction, it would not lie in the mouths of 
 the plaintiffs afterwards to say that the court thus selected by them 
 had no jurisdiction of the suit.^ 
 
 ' i 3437; Code W. Va., Ch. 133, ? 6; ? 3439; Code W. Va., Ch. 133, g 9. 
 
 " Hough V. Shieeve, 4 Munf. 490; Singleton v. Lewis, &c., 6 Munf. 397; PuUiam 
 V. Winston, 5 Leigh, 324; Winston et al v. The Midlothian Coal Mining Co. et als, 
 20 Grat. 686. But see Beokley v. Pahuer et ai, 11 Grat. 625. 
 
 » MuUer, &c. v. Bayly et al, 21 Grat. 531. 
 
 *The general rule, however, is that consent cannot give jurisdiction. Tyson's 
 Ex' or V. Glaize et cds, 23 Grat. 799. 
 
 6 MuUer, &c. a. Bayly etal, 21 Grat. 582. 
 
 29 
 
450 INJUNCTIONS. § 132 
 
 The Injunction Order and Proceedings. 
 
 § 132. When the injunction is awarded in term, the order is 
 entered by the clerk in the order book like any other decree ; and 
 when it is applied for in vacation, the order is addressed to the 
 clerk, and is written out and signed by the judge, and is fre- 
 quently endorsed upon the bill or petition asking for it. Upon 
 the execution of the bond, where one is required, the restraining 
 order, usually endorsed upon an ordinary sumnions in chancery,' 
 with the certificate of the clerk that the bond has been executed, 
 is served by the officer upon the defendants or persons whose ac- 
 tion is directed to be enjoined, and the cause then proceeds to 
 maturity like any other suit in chancery. 
 
 The rule formerly was, that if, on motion to that effect, after 
 the answers came in, the injunction was dissolved, the bill could 
 not, nevertheless, be dismissed until the next term of the court,^ 
 nor could costs be decreed until the final hearing ; ^ but it is now 
 provided by statute,^ that when an injunction is wholly dissolved, 
 the bill shall stand dismissed of course, with costs, unless sufficient 
 cause be shown against such dismission at the next term of the 
 
 ' Minor's Insts., Vol. 4, p. 1144. The court or judge may in the order granting 
 an injunction to restrain the removal of property out of the State, require bond to 
 be given before such officer and in such- penalty as the court or judge may direct, 
 with condition to have the property forthcoming to abide the future order or de- 
 cree of the court, and unless such bond be given, may order the officer serving its 
 process to take possession of the property and keep it until the bond be given or 
 until the further order of the court. Code, § 3441. 
 
 ' Blow V. Taylor, &c., 4 H. & M. 159. The act of March 3, 1896, Acts 1895-6, 
 p. 728, permits the court or judge to prescribe in the order the time during which 
 the order shall be effective; permits the same to be enlarged on notice or to be dis- 
 solved on similar notice within the time for which it was made effective, but if 
 the injmiction in such case stands dissolved by its own limitations, there is no right 
 of appeal from it, but if such order and refusal be made by a circuit or corporation 
 court or a judge thereof, application may be made to a judge of the court of ap- 
 peals as provided by § 3438, Code of Virginia. 
 
 ' Barnett v. Spencer, 2 H. & M. 7. 
 
 * ? 3446. The corresponding provision of the statute of West Virginia is ? 13, 
 Ch. 133, Code. 
 
§ 133 THE INJUNCTION BILL. 451 
 
 court after the dissolution. The clerk is required to enter such 
 dismission on the last day of the term, and the judge cannot make 
 an order dismissing the bill in vacation.' But the provisions of 
 the statute have been construed not to apply to a bill which is not 
 merely a bill of injunction, but has other objects exclusive of those 
 embraced by the injunction.* 
 
 When an injunction was dissolved on bill and answer, and the 
 cause was afterwards set for hearing on the motion of the defend- 
 ant, and on hearing the bill, answer, exhibits and the evidence in 
 the cause, the court perpetuated the injunction, it was held that the 
 defendant could not then, under the statute, move to dismiss the 
 bill.^ 
 
 When the order is awarded in vacation, as was before noticed,* 
 the defendant may offer his answer and move to dissolve the in- 
 junction without having filed the answer, either at rules or in 
 term ; ° but as this is only intended to give the defendant the 
 benefit of his answer on the motion to dissolve, if the case is heard 
 on any other matter involved in it than the injunction, the answer 
 should be regularly filed and issue taken on it.° 
 
 The Injwnotion Bill. 
 
 § 133. The bill for an injunction is like any other bill in chan- 
 
 1 Muller, &c., v. Bayly et al, 21 Grat. 537. 
 
 ' Hough V. Skreeve, 4 Munf. 490; Singleton v. Lewis, 6 Munf. 397; Pulliam *. 
 Winston, 5 Leigh, 327. 
 
 » Franklin v. Wilkinson, 3 Munf. 112. See Brakeley v. Tuttle, 3 W. Va. 86. 
 
 ^Ante, Ch. 7, ? 127, Div. 11. 
 
 Goddin v. "Vaughn's Ei'x, 14 Grat. 102. 
 
 ' The syllabus to the case of Stuart, Buchanan & Co. o. White el ah, 25 Grat. 300, 
 states that where there is a pure bill to enjoin part owners from disturbing the 
 possession of property, and the only issue is the right to the injunction, there could 
 be no account of profits. From the text we gather that as the issue in one of the 
 causes was only " whether King's heirs had the right to enter and n6e the property 
 for themselves," there could have been no order of account; but as that cause was 
 heard with another, the scope of which was sufficient to include an account of the 
 rents and profits, such an account was correctly ordered (p. 310). On the subject 
 of an account where the injunction is to restrain waste, see High on Lijunctions, 
 H51- 
 
452 INJUNCTIONS. § 133 
 
 eery in its general frame and structure,- but it is especially requisite 
 that in a proceeding of this character the averments of the bill 
 shall be clear, precise, and positive ; for the courts will not award 
 restraining orders upon argumentative allegations, upon facts stated 
 only from information or belief, or upon the mere apprehensions 
 and fears of complainant, unsustained by facts establishing their 
 probability ; ' and where fraud is relied upon as the foundation for 
 the injunction, the allegations of the bill must be of specific and 
 definite acts of fraud, and not mere general averments, for in the 
 absence of such specific allegations, a court of equity will not in- 
 terfere, although irreparable injury is alleged.^ 
 
 It is a rule also that an injunction will not be granted unless 
 expressly prayed for in the bill,^ but this is confined to cases in 
 which it is asked before the hearing ; for pending the cause, the 
 court may grant an injunction, though it was not originally asked 
 
 ^ High on Injunctions, § 35, 36. As to the status of the case in court, see 
 Hutchinson v. Landcraft, 4 W. Va. 312. 
 
 2 High on Injunctions, § 28; C. & O. E. E. Co. v. Patton, 5 W. Va. 234; ZeU 
 Guano Co. i;. Heatherly, 38 W. Va. 409; Van Weel v. Winston et ats, 115 TJ. S. 
 B. 228; Simpson v. Edmiston, 23 W. Va. 675; Pyles v. Eiverside Furniture Co., 
 30 W. Va. 129; Dickenson v. Bankers L. & Ins. Co., 93 Va. 498. But it is said 
 that when facts are stated which amount to fraud, it is not necessary that the bill 
 should directly charge fraud. Parham v. Eandolph, 4 Howard, 435. The rule 
 that the allegata and the probata must concur in order to entitle the complainant 
 to a decree is more strictly applied in cases where fraud is alleged than in other 
 cases, the rule being that upon a bill not charging fraud and specifying wherein it 
 consists, no relief based on fraud can be had. Southall v. Farish, 85 Va. 493. 
 " If a party is entitled to recover at all he must recover on the case stated in his 
 bUl. And although the plaintiff may make out a case which, under other circum- 
 stances, would entitle him to the aid of the court, yet if it is not the case made by 
 the bill he cannot recover." Kent's Airn'rv. Kent's Adm'r, 82 Va. 205. See 
 also Scott V. Eowland, 82 Va. 484; Welfly v. Shend. I. L. Mfg. Co., 83 Va. 769; 
 Va. F. M. Co. V. CottreU, 85 Va. 864; Hardin v. Boyd, 113 U. S. E. 761; Van 
 Weel a. Wmston, 115, U. S. E. 237; Ambler v. Choteau, 107 U. S. E. 586, 590; 
 Armstrong v. Bailey, W. Va. ; 28 S. E. E. 766. See also Ante, p. 276 and notes. 
 An injunction bill must allege facts with knowledge. Farland v. Wood, 35 W. 
 Va. 465. 
 
 ' But it matters not in what part of the bill. High on Injunctions, | 927. Where 
 a bill was held fatally defective. Western M. & M. Co. v. Va. C. Coal Co., 10 W. 
 Va. 250. 
 
§ 134 THE PARTIES TO AN INJUNCTION BILL. 453 
 
 for/ and this either on the motion of the plaintiff or the defend- 
 ant.^ It is also provided by statute that no injunction shall be 
 awarded in vacation, nor in court, in a case not ready for hearing, 
 unless the court or judge be satisfied by affidavit or otherwise of 
 the plaintiff's equity.* 
 
 The Parties to an Injunction Bill. 
 
 § 134. In addition to what has already been said* about the 
 parties necessary to an injunction proceeding, it is proper to call 
 attention to the general rule, that an injunction will not be granted 
 against a party not a defendant to the bill, or not properly brought 
 before the court ; but if the court is in full possession of a cause, 
 it may simply, upon motion in the action, restrain parties from 
 proceeding at law with respect to the same matter. So purchasers 
 under a decree, who are not strictly parties to the suit in which 
 they buy, may be enjoined from acting contrary to the decree ; 
 and it is laid down as a general rule, subject to an exception in a 
 case of fraud, that the officer having an execution should not 
 properly be made a party defendant, it being regarded as sufficient 
 that the parties to the judgment should be brought before the 
 court ; ° but where an officer took bail for a defendant's appear- 
 ance, and the ground of the injunction was that the person so re- 
 turned never was the bail and did not execute the bond, it was 
 held that the officer was as necessary a party as the plaintiff in 
 the suit at law.* 
 
 Where the injunction is against a judgment at law, all the per- 
 sons who obtained the judgment should be made parties defend- 
 
 'Dan. Chy. Pr., Vol. 1, p. 388. 
 ■"Ibid., p. 1614. 
 
 = I 3440; Code W. Va., Ch. 133, | 3. As to who may make it, see C. & O. 
 B. E. Co. 13. Huse, 5 W. Va. 579; High on Injunctions, \ 945. 
 ^ Ante, Ch. 3, ? 56. See also Eobertson v. Tapscott's Adm'r, 81 Va. 549. 
 'High on Injunctions, § 746 to § 751. But see contra, Ibid., ? 115. 
 ^ Spotswood V. Higgenbotham, 6 Munf. 313. 
 
454 INJUNCTIONS. § 134 
 
 ants ; ' and when the injunction is sought against the violation of 
 rights or easements of a public nature, the relief should only be 
 granted to those persons who are injured in their individual rights.^ 
 But it has been held that where the act is one necessarily affecting 
 all the inhabitants who, in respect of persons or property, were 
 liable to taxation under the provisions of a certain act of the legis- 
 lature, it is allowable for some to file a bill on behalf of themselves 
 and the other inhabitants similarly situated, seeking any relief to 
 which they might all in common be justly entitled, although their 
 individual interests might be several and distinct.' 
 
 The corporate authorities of a town may enjoin a public nuis- 
 ance, and any private person specially injured may join with them 
 in filing the bill ; but when private persons file a bill to restrain a 
 public nuisance, they must show some special and peculiar injury 
 sustained by themselves, independent of and distinct from the com- 
 mon and general injury shared by the public alike.* 
 
 Any member of a corporate body may obtain an injunction to 
 prevent a breach of trust by the majority of the members,^ or the 
 improper management of the company, or the wrongful diversion 
 of its funds." It will be seen,' however, that the courts are slow 
 to interfere with the acts of corporations, especially where they 
 are of a public nature ; and even when a receiver was appointed 
 to take charge of a railroad, the court thought it improper to en- 
 join the directors and officers from acting as such, such an order 
 not being necessary to accomplish the object of the principal 
 order.* 
 
 The President of the United States cannot be restrained from 
 
 ' High on Injunctions, 2 749, 751. 
 
 " Ihid., I 753; Board of Liquidation v. McComb, 2 Otto, 531. 
 ' Bull et als v. Bead et ah, 13 Grat. 86. Contra, Newcomb v. Horton, 18 Wis. 566. 
 But see High on Injunctions, ? 794. 
 * High on Injunctions, ? 755. 
 ' High on Injunctions, J 761. 
 'Ibid., ?767. 
 ' Post, ? 135, 136. 
 ^ Stevens et al v. Davidson, 18 Grat. 829. 
 
§ 135 THE GBOUNDS POU AN INJITNCTION. 456 
 
 carrying into effect an act of Congress alleged to be unconstitu- 
 tional, whether the incumbent of the Presidential office be de- 
 scribed in the bill as President or simply as a citizen of a State ; ^ 
 but this rule does not apply to the heads of departments.^ 
 
 The Grounds for an Injv/nction. 
 
 § 135. The grounds upon which injunctions are most usually 
 applied for and granted may be classified and will be discussed as 
 follows : ' 1. To prevent irreparable wrong ; II. To restrain waste ; 
 III. To prevent a trespass ; IV. To prevent a nuisance ; V. Against 
 the infringement of patents and copyrights ; VI. To enjoin sales 
 under executions ; VII. To enjoin sales under trusts ; VIII. In 
 cases of municipal corporations ; IX. In cases of other corpora- 
 tions ; X. To restrain the use of a franchise ; XI. In cases of 
 sureties ; XII. In cases of partners. 
 
 I. To Prevent Irreparable Wrong. — As the general jurisdiction 
 of courts of chancery is founded in a lack of remedy in the courts 
 of law, so especially is relief given by means of injunctions, be- 
 cause there is none or an inadequate remedy at law,* and because 
 compensation by way of damages will not be sufficient to restore 
 the party to his rights, or to replace the wrong that may be done 
 to him. It will be found upon careful investigation that all the 
 grounds upon which the right to an injunction rests are trace- 
 
 ^ The State of Mississippi v. Johnson, President, 4 Wall, 475. 
 
 " Marbury v. Madison, see 1 Oranch. 137; Kendall, &c. v. Stockton & Stokes, 12 
 Peters, 527; United States v. Guthrie, 17 How. 284. 
 
 ' For cases for which express provision is made by statute, see Post, this chap- 
 ter. For cases involving injunctions to proceedings at law, see Ante, Ch. 1, § 5 
 to §17. 
 
 * See Moore v. Steelman, 80 Va. 339. A bill must set up the facts which con- 
 stitute the injury complained of. Id. ; Farland v. Wood, 35 W. Va. 465. In- 
 junction against actor performing at another theatre in violation of contract. 
 Burton v. Marshall, 4 GUI. 487; 45 Am. Dec. 171; note, pp. 175, 176. For en- 
 joyment of easements, see Sunderlin v. Baxter, 76 Va. 299. Against destruction 
 of a highway, see Town of Burlington v. Schwajzman, 52 Conn. 181 ; 52 Am. E. 
 571; note, 574 to 578. 
 
456 INJUNCTIONS. § 135 
 
 able to this general rule of preventing irreparable wrong or mis- 
 chief.^ 
 
 II. To Restrain Waste. — What constitutes waste, the commission 
 of which entitles the party injured to relief by injunction, depends 
 upon the circumstances of each particular case, and is often varied 
 by the locality of the act complained of; thus cutting timber in 
 some sections may be considered waste, while in others it is a posi- 
 tive benefit ; and hence in every case the law on this subject must 
 be applied with reasonable regard to circumstances.^ But chan- 
 cery goes greater lengths than the courts of law in staying waste, 
 and liberally exercises its jurisdiction for the prevention of irrepa- 
 rable injury ; ' thus, while the law does not notice waste of this 
 character, equity will interfere to prevent the destruction of shade 
 or ornamental trees ; malicious waste committed by a tenant who 
 by express agreement is without impeachment of waste ; and waste 
 committed against mere equitable owners of an inheritance.* 
 
 On the other hand, when the injury complained of is one for 
 which adequate satisfaction may be had by an action at law, a 
 court of equity will not interfere by injunction.^ 
 
 Ttie jurisdiction of a court of equity to restrain the commission 
 
 1 Minor's Institutes, Vol. 4, Pt. 1,'pp. 7, 109, 333, 473; Story's Equity Juris., 
 ? 921 et seq.; Irwin v. Diiion, 9 How. 10; Georgetown v. Alex. Canal Co., 12 Pet. 
 91; Pennsylvania v. Wheeling Bridge Co., 13 How. 518; Miss, and Mo. R. K. Co. 
 V. Ward, 2 Black. 485; Parker v. Winnipiseogee L. C. and W. Co., 2 Black. 548; 
 Beveridge v. Lacy, 3 Band. 63; Atchison v. Peterson, 20 Wall. 507; Bowyer v. 
 Creigh, 3 Band. 32; Ibid. 583; Miller v. Truehart, 4 Leigh, 569; Coalter v. Hunter, 
 4Eand. 58; Adams' Eq. 210; High on Injunctions, ? 695, § 737; Daniel's Chy. 
 Pr., Vol. 2, pp. 1620 to 1628, 1650 to 1656. 
 
 'Fiudlay v. Smith, &c., 6 Munf. 142, 148. 
 
 'Kanev. Vandenburgh, 1 Johns. Chy. R. 11; Scudder !). Trenton (Del.) Falls 
 Co., 1 Saxton, 694; 23 Am. Dec. 756. Contra, Ch. Taylor in Cutting v. Carter, &c., 
 4 H. ife M. 424. 
 
 ♦Mmor's Institutes, Vol. 4, Pt. 1, p. 475; Story's Equity Juris. , Vol. 2, § 915 
 et seq.; Adams' Eq. 402 et seq. See also Bracken v. Preston, 1 Pinney, 584; 44 
 Am. Dec. 412; note, p. 424; Core v. Bell, 20 W. Va. 169. To prevent an im- 
 proper use of leased premises. Maddox ■„. White, 4 Md. 72; 59 Am. Dec. 67; 
 note, p. 70 to 72. To prevent waste when there is but little timber on the land. 
 Powell V. Cheshire, 70 Ga. 357; 48 Am. R. 572. 
 
 ' Cockey v. Carroll, 4 Md. Chy. 344; Amelung v. Seekamp, 9 GiU. & Johns. 468. 
 
§ 135 THE GROUNDS FOE AN INJUNCTION. 457 
 
 of waste was formerly of a very limited nature/ but by degrees 
 it has been extended, until, although it is still confined to cases 
 where the complainant's title is supported by unquestioned evi- 
 dence,^ yet courts of equity will interfere by injunction against a 
 tenant for life in favor of a remainderman for life or in fee ; 
 against an under lessee in favor of a ground landlord ; against a 
 tenant from year to year after notice to quit, to restrain him from 
 removing the crops, manure, etc. ; against a lessee to prevent him 
 from making material alterations in a dwelling-house, as by chang- 
 ing it into a shop or warehouse, and vice versa ; against a mort- 
 gagor or mortgagee in possession ; ' against tenants in common, 
 co-parceners or joint- tenants, when the waste is destructive of the 
 estate, and not within the usual legitimate exercise of its right of 
 enjoyment ; * against executors ; against an insolvent debtor when 
 his land has been attached in a suit at law ; * to protect the inter- 
 ests of a child in ventre sa mere ; ^ and against a purchaser, to 
 enjoin him from committing waste so as to preserve unimpaired 
 the lien of the creditor.' 
 
 A court of chancery will not interfere to restrain waste by a 
 defendant who claims under a title adverse to that of the plain- 
 tiff,* the rule in such cases being thus laid down : " When the 
 defendant is in possession, and the plaintiff claiming possession 
 seeks to restrain him from committing acts of trespass or waste, 
 
 1 Story's Eq. Juris., ? 909. 
 
 * High on Injunctions, § 421. 
 
 * Held that a mortgagor may continue to cut and sell the timber growing on the 
 land although he is insolvent. Angier v. Agnew, 98 Penn. St. 587; 42 Am. E. 624. 
 
 * Story's Eq. JuriB., § 913 et aeq; but the court will not interfere to restrain one 
 joint devisee of land from entering at the suit of a tenant claiming under the other 
 devisees. Baldwin v. Darst, 3 Grat, 132; Tuttle v. Eskridge, 2 Munf. 330; Allen 
 V. Gibson, 4 Band. 477. 
 
 '• Dan. Chy. Pr., Vol. 2, p. 1628, and note; Hanly v. Watterson, 39 W. Va. 214. 
 
 6 Dan. Chy. Pr., Vol. 2, p. 1629. 
 
 ' Clarke ei al v. Curtis, 11 Leigh, 559. 
 
 *Pillsworth V. Hopton, 6 Ves. 51; Storm v. Mann, 4 Johns. Chy. E. 21; Hig- 
 gins et ah v. Woodward and Wife, 1 Hopkins' Chy. E. 342; Pligh on Injunctions, 
 ?421. 
 
458 INJUNCTIONS. § 135 
 
 the court will not interfere, unless the acts are such flagrant acts of 
 spoliation as to justify it in departing from the general principle. 
 Where the plaintiff is in possession, and the person committing 
 the acts complained of is an utter stranger, not claiming under 
 the color of right, then the tendency of the court is not to grant 
 an injunction, unless there are special circumstances, but to leave 
 the plaintiff to his remedy at law ; although, when the acts tend 
 to the destruction of the estate, the court will grant it. But where 
 the person in possession seeks to restrain one who claims by ad- 
 verse title, then the tendency will be to grant the injunction, at 
 least when the acts alone either do or might tend to the destruction 
 of the estate." ^ 
 
 The jurisdiction to stay waste is in aid of the legal right, and 
 an injunction will be granted pending a suit at law or in equity to 
 try the right ; ^ but it has been said that it will be exercised only 
 when complainant has established, or is endeavoring to establish, 
 his title at law ; ' and will be refiised where there appears to be 
 no impediment to the action of waste at law.* The better opinion, 
 however, seems to be, that an injunction to stay waste will be 
 granted when the remedies provided in the courts of law could 
 not be made to apply ; as where the titles of the parties are of a 
 purely equitable nature ; ° or where the parties have both legal 
 titles and legal remedies, but irreparable mischief will be done 
 unless they are entitled to more relief than that which they could 
 obtain at law ; or where the parties committing the waste, with 
 nothing but temporary and limited interests in the subject-matter, 
 are maliciously and wantonly abusing their legal rights to the in- 
 jury of those in remainder." ' 
 
 We have observed that what constitutes waste must be deter- 
 
 • Daniel's Chy. Pr., Vol. 2, p. 1632, and note. 
 ' Ibid., p. 1629, and note. 
 
 » High on Injunctions, § 422; Scott v. Wharton, 2 H. & M. 25. 
 
 * Cutting V. Caiter, 4 H. & M. 424. 
 
 '■ See Garrison v. HaU et als, 75 Va. 150. 
 
 « Daniel's Chy. Pr., Vol. 2, p. 1629, and notes. 
 
§ 135 THE GEOUNDS FOE AN INJUNCTION. 459 
 
 mined by the circumstances of each particular case ; but the fol- 
 lowing have in decided causes been considered sufficient to justify 
 the interposition of a court of equity : Cutting down timber of 
 a young growth, or trees used for shade or ornament ; injuries to 
 vistas, avenues and rides ; ' cutting or removing timber when it 
 constitutes the chief value of the land,* and by whomsoever it 
 may be committed ; ' removing crops, straw and manure ; sowing 
 the land with hurtful crops ;^ injury to property by a purchaser 
 who has not paid the purchase-money ; removing'mineral deposits ; 
 taking coal from mines,' or ore from banks ; * changing a dwelling 
 into a store,'^ or a building rented for a post-office into a beer 
 hall ; * destroying famUy grave-yards, defacing grave-stones, or 
 obliterating inscriptions.' 
 
 III. To Prevent a Trespass. — The distinction between waste 
 and trespass is said to consist in the former being the abuse, or 
 the destructive use of property by one who, while not possessed 
 of the absolute title thereto, has yet a right to its legitimate use ; 
 trespass being an injury to property by one who has no right what- 
 ever to its use.'" 
 
 As in cases of waste, the practice of granting injunctions rests 
 upon the ground of irreparable injury, and an injunction will not 
 be granted to restrain a mere trespass when the injury is not irre- 
 parable, but is susceptible of perfect pecuniary compensation, and 
 
 1 Daniel's Chy. Pr., Vol. 2, p. 1633, and notes. 
 
 " High on Injunctions, § 428, 429. 
 
 'Fleming, Trustee, v. Collins' Adm'r, 2 Del. Chy. E. 230. 
 
 * High on Injunctions, ? 441. 
 
 ^Ibid., 2 455,456. 
 
 "Anderson v. Harvey's Heirs; 10 Grat. 386. But see Crouch v. Puryear, &c., 
 1 Band. 258. 
 
 ' Douglass, &o. V. Wiggins, &c., 1 Johns. Chy. E. 435. 
 
 8 Maddox v. White, 4 Md. 72. But see Winship v. Pitts, 3 Paige, 259; Wat- 
 son V. Hunter, &c., 5 Johns. Chy. E. 169; Hawley d. Clowes, 2 Johns. Chy. E. 122. 
 
 " Moreland v. Eichardson, 24 Beav. 33, note. 
 1" High on Injunctions, § 420; Hill v. Bowie, 1 Bland. 593. 
 
460 INJUNCTIONS. § 135 
 
 for which the party may obtain adequate satisfaction ia the ordi- 
 nary course of law.^ 
 
 The remedy by injunction is applicable as well to staying a tres- 
 pass which is Apprehended as to one already being committed ; but 
 the mere allegation of danger of great and irreparable injury is 
 not enough ; facts must be stated to satisfy the court of the danger ; 
 but when this is done, the omission of the charge of irreparable 
 mischief would not be a defect in a bill for an injunction, which 
 is otherwise good.' 
 
 The remedy applies to injuries both to personal and to real estate ; 
 to the former, generally because by reason of a pretium affeotionis, 
 the remedy by action at law is inadequate ; ^ and to real estate, 
 
 'Daniel's Chy. Pr., Vol. 2, p. 1631, note; High on Injunctions, § 262; Clinton 
 ■0. Myers, 46 N. Y. 511; 7 Am. R. 373; Western M. & M. Co. v. Va. Cannel Coal 
 Co. et al, 10 W. Va. 250; Hart v. Mayor, etc., of Albany, 9 Wend. 571; 24 Am. 
 Dec. 165; Ibid., p. 197, note; Hanley v. Watterson, 39 W. Va. 214; Smith v. 
 Pettingill, 15 Vt. 82; 40 Am. Dec. 667; Bracken v. Preston, 1 Pinney, 584; 44 
 Am. Dec. 412. See also note to p. 681, 54 Am. Dec. ; Shipley v. Eitter, 7 Md. 
 408; 61 Am. Dec. 371. Does not lie for a mere trespass in the absence of irrepara- 
 ble injury. Smith v. Gardner, 12 Greg. 231; 53 Am. E. 342; note, p. 846 to 355; 
 Collins V. Sutton, 94 Va. 127. To restrain irreparable mischief, suppress oppressive 
 litigation or prevent a multiplicity of suits. Switzer v. McGulloch, 76 Va. 777. 
 See also Quackenbush v. Van Eiper, 2 Green's Chy. 350; 29 Am. Dec. 716; note, 
 p. 721; Kennerty v. Etiwan Pho. Co., 17 S. C. 411; 43 Am. E. 607; Lyon et al v. 
 Hmit, 11 Ala. 295; 46 Am. Dec. 216. Irreparable injury good ground, although 
 to give relief court must pass on conflicting titles. Baltman v. Harness, W. Va. ; 
 26 S. E. E. 271. To warrant the interference of a court of equity to restrain a 
 trespass, two conditions, it is said, must co-exist: First, the plaintiff's title must be 
 undisputed or established by legal adjudication; and, second, the injury complained 
 of must be irreparable in its nature. Bums v. Meams, W. Va. ; 29 S. E. E. 112; 
 LazzeU v. Garlow, W. Va. ; 30 S. E. E. 171. Easements and servitudes will be 
 protected from encroachment on the grounds of irreparable injury (Woods v. Early, 
 95 Va. 314), and if in any case the act done or threatened would be destructive of 
 the substance of the estate, or if repeated acts of injury are done or threatened, or 
 the injury would be irreparable, or whenever the remedy at law is or would be in- 
 adequate, a court of equity will enjoin the perpetration of the wrong and prevent 
 the injury; and the insolvency or non-residence of the trespasser is entitled to 
 much weight in determining whether a court of equity will restrain the trespass. 
 MiUer V. WUlis, 95 Va. 327. 
 
 ' Daniel's Chy. Pr., Vol. 2, p. 1631, note; Moore v. Steelman, 80 Va. 339. 
 
 » Randolph v. Eandolph, 6 Band. 198; Allen v. Preeland, 3 Eand. 175; Wilson 
 & Trent v. Butler, &c., 3 Munf. 559; Harrison v. Sims, 6 Eand. 506; Hughes v. 
 
§ 135 THE GROUNDS FOE AN INJUNCTION. 461 
 
 when the acts done, or threatened to be done to property, would 
 be ruinous or irreparable, or would impair the just enjoyment of 
 the property in future ; ' and in order that by means of an injunc- 
 tion the court may suppress a multiplicity of suits and oppressive 
 litigation.^ Hence the court will interpose when a mere trespasser 
 digs into and works a mine ; * when an adjoining owner is making 
 a dangerous excavation ; when timber is being cut in collusion 
 with a tenant ; when pending a dispute respecting the boundaries, 
 ornamental trees or timber is being cut on the disputed territory ; 
 to restrain an insolvent tenant from violating his lease ; * some- 
 times at the suit of owners of property upon a street over which 
 a railway is about to be constructed ; ^ to prevent a municipal cor- 
 poration from proceeding to drain its lands by the construction of 
 artificial channels in the direction of lands adjoining the corpora- 
 tion, to the permanent injury of such adjoining lands ; ^ and to 
 open streets where there has been no dedication to public use.' 
 On the other hand, the courts have declined to grant injunctions 
 where the injury complained of was the erection of a wooden fence 
 on part of the complainant's premises ; where a ditch was allowed 
 to remain out of repair, whereby water percolated through the 
 
 Pledge ei ofe, 1 Leigh, 443; Chapman v. Washington, 4 Call. 327; Sampson v. 
 Mitchell's Ex' or, 5 Munf. 175; Scott and Wife v. Halliday, &c., 5 Munf. 103; 
 Bowyer v. Creigh, 3 Band. 32; 2 Tuck. Com. 457; Minor's Institutes, Vol. 4, Pt. 
 1, p. 453. 
 
 > McMillan v. Ferrell, 7 W. Va. 223. 
 
 " Story's Eq. Jurisprudence, § 928; Collins d. Sutton, 94 Va. 127; 26 S. E. R. 415. 
 
 'Story's Eq. Jurisprudence, § 929; Anderson v. Harvey's Heirs, 10 Grat. 386; 
 Mitchell V. Dors, 6 Ves. E. 147; Hanson v. Gardiner, 7 Ves. E. 305; Thomas v. 
 Oakley, 18 Ves. R. 184; Stevens v. Beekman, 1 Johns. Chy. E. 318; Jerome tj. 
 Eoss, 7 Johns. Chy. R. 315; Smith v. Pettingill, 15 Vermont E. 84. 
 
 * Frank & Co. v. Brunneman, 8 W. Va. 462. 
 
 * Story's Eq. Jurisprudence, | 928-929. 
 
 ^Pettigrew v. Evansville, 25 Wis. 223; 3 Am. E. 50. An injunction was also 
 held to be the proper remedy to prevent a preacher from preaching undenomina- 
 tional doctrine in a meeting-house. Hale v. Everett, 53 N. H. 9; 16 Am. E. 82. 
 
 ' City of Eichmond v. Poe, 24 Grat. 149; Manchester Cotton Mills v. Manches- 
 ter, 25 Grat. 825; Sower v. The City of Philadelphia, 35 Penn. St. 231; Pierpoint 
 V. The Town of HarrisviUe, 9 W. Va. 215. 
 
462 INJDNCJTIONS. § 135 
 
 bank and flooded complainant's meadow ; where a party undertook 
 by building, to encroacb upon a private alley, it not appearing that 
 the building would materially injure the way ; * where mud and 
 earth were thrown on complainant's land ; ^ and in restraint of 
 trade where there was an adequate remedy at law.' ' 
 
 IV. To Prevent a Nuisance. — The distinction between a tres- 
 pass and a nuisance is said to consist in the former being a direct 
 infringement of one's rights of property, while in the latter case 
 the infringement is the result of an act which is not wrongful in 
 itself, but only in the consequences that may flow from it. In the 
 one case the injury is immediate, in the other it is consequential, 
 and generally results from the commission of an act beyond the 
 limits of the property affected.^ 
 
 Nuisances which will be restrained by a court of equity are of 
 two kinds : public and private. For the former no action at law 
 lies unless the party complaining is especially injured thereby ; ° 
 for relief against the latter, equity generally has jurisdiction only 
 
 » HaU V. Eood, 40 Mich. 46; 29 Am. E. 528. 
 
 ' High on Injunctions, § 476. 
 
 'Harkinaon's Appeal, 78 Penn. St. 196; 21 Am. B. 9. To prevent the diversion 
 of water. Garwood v. E. E. Co., 83 N. Y. 400; 38 Am. E. 452. 
 
 *High on Injraictions, 5 485; Weeton v. Woodcock, 5 M. & W. 587. A nui- 
 sance is anything that works hurt, inconvenience or damage to another. Coken v. 
 Brige, 9 Ga. 425; 54 Am. Dec. 347. See also Am. & Eug. Encyo. of Law, Vol. 
 16, p. 922. Public nuisances which wiU cause inevitable private and special injury 
 may be enjoined by the party injured or likely to be injured. Walker v. Shep- 
 ardson, 2 Wis. 384;' 60 Am. Dec. 423; note, p. 426; Frink v. Lawrence, 20 Conn. 
 117; 50 Am. Dec. 274; note, 277. Held that an act enjoined as a nuisance may 
 be made valid by act of the legislature. Sawyer v. Davis, 136 Mass. 239; 49 Am. 
 E. 27. Corporations may be enjoined equally with individuals. B. & P. E. E. 
 Co. V. Fifth Baptist Church, 108 U. S. E.' 317. Lies although act may be pun- 
 ished by criminal proceedings. People v. St. Louis, 5 GU. 351; 48 Am. Dec. 339. 
 Slight interruptions of a highway not a nuisance. See note to p. 757, 29 Am. Dec. 
 Eight of mayor to demolish wooden and dangerous buildings. Fields v. Stokley, 
 99 Penn. 306; 44 Am. E. 109. 
 
 5 Minor's Institutes, . Vol. 4, Pt. 1, p. 473; Black's Com., Vol. 3, p. 219, 220; 
 Pennsylvania v. Wheeling Bridge Co., 13 How. 578; Miss. & Mo. E. E. Co. v. 
 Ward, 2 Black. 485; Mills v. Hall, 9 Wend. 315; 24 Am. E. 160; Ibid., p. 161, 
 note. 
 
§ 135 THE GROUNDS FOR AN INJUNCTION. 463 
 
 because they are liable to produce immediate injury, for which 
 damages will afford no adequate compensation, and hence it is 
 necessary that the nuisance shall be prevented ; ' or when the 
 nuisance is of such a nature that the continuance of it would cause 
 a constantly recurring grievance.^ 
 
 A. public nuisance consists of something that is annoying or in- 
 jurious to the people generally' of the community, such as hindering 
 navigation, cutting the embankment of a canal to use the water,* 
 the obstruction of a highway or river, the omission to repair a 
 bridge or highway, or the carrying on of offensive or dangerous 
 trades ; ° and being matters for indictment,^ cannot be enjoined 
 unless the plaintiff shows some special injury to himself, aside 
 from and independent of the general injury to the publicJ 
 
 The obstruction of the natural flow of a river, causing it to 
 overflow its banks in a city, and the obstruction of a public square,* 
 
 1 Minor's Institutes, Vol. 4, Pt. 1, p. 473; Goodall v. Grafton, 33 Ohio, 271; 31 
 Am. B. 535; Story's Equity Juris., 2 917 et seq.; Irwin ». Dixion, 9 How. 10; 
 Georgetown v. Alex. Canal Co., 12 Pet. 91; Beveridge v. Lacy, 3 Kand. 63; MiUer 
 V. Truehart, 4 Leigh, 569; 2 Daniel's Chy. Pr. 1637; Adams' Eq. 459; Crenshaw 
 V. State B. B. Co., 6 Band. 245. 
 
 ^ High on Injunctions, § 485; Masonic Temple Assn. v. Banks, 94 Va. 695. 
 
 ' A house in a city may be a public nuisance, but a municipal corporation cannot, 
 by its mere declaration to that effect, subject it to removal. It must first resort to 
 some judicial proceeding, giving the owner or occupant an opportunity to be heard, 
 before his house is condemned and removed as a nuisance. Teass v. City of St. 
 Albans, 38 W. Va. 1. 
 
 • High on Injunctions, ? 525, § 520. 
 
 " Adams' Eq., p. 458; Dawson v. The St. Paul Ins. Co., 15 Mo. 136; 2 Am. E. 
 109. See also Pixley et al v. The Boanoke Nav. Co. et ah, 75 Va. 320. 
 
 « Daniel's Chy. Pr., Vol. 2, p. 1636; Miaor's Institutes, Vol. 4, Pt. 1, p. 7. 
 
 ' Dawson v. The St. Paul Ins. Co., 15 Mo. 136; 2 Am. B. 109; Daniel's Chy. 
 Pr., Vol. 2, p. 1037 and note; Beveridge v. Lacy, 3 Band. 63; Wingfield v. Cren- 
 shaw, 4 H. & M. 474; Keystone Bridge Co. v. Summers e« oi, 13 W. Va. 476; 
 Adams' Eq., p. 458; High on Injunctions, § 522; Stetson v. Faxon, 19 Pick. 147; 
 31 Am. Dec. 123; note, p. 132. 
 
 ^ High on Injunctions, § 524. Obstructing streets. State v. Mobile, 5 Porter, 
 279; 30 Am. Dec. 564; note, 572. When using street for materials in erecting a 
 building not a nuisance. State v. Omaha, 14 Neb. 285; 45 Am. E. 108. When 
 bay-window a nuisance. Beimer's Appeal, 100 Penn. 182; 43 Am. B. 373. Skating 
 rink a nuisance, when. Snyder v. Cabell, 29 W. Va. 48. As to the private right 
 of abating a nuisance, see Bowden v. Lewis, 13 B. I. 189; 43 Am. B. 21; note, 24. 
 
464 INJUNCTIONS. § 136 
 
 are also among those acts which are enumerated as public nuisances. 
 Private nuisances consist of such things as work irreparable injury 
 to health, trade/ or property ; or produce interminable litigation 
 or a multiplicity of suits.^ Instances of private nuisances, proper 
 to be enjoined, are, where one builds so close to the house of an- 
 other as to darken his windows ; ^ where, against a covenant not 
 to do so, one erects a livery stable, a slaughter house,* a glue fac- 
 tory, or other such inconvenience ; ° the obstruction or pollution of a 
 water course ; ° the diversion of streams for mills or other purposes f 
 the back-flowing on mills or lots ; * pulling down river-banks ; 
 the erection of a new ferry injurious to an old-established ferry ; " 
 
 ' But an injunction will not lie to prevent a mere slander of trade. Singer Mfg. 
 Co. V. The Domestic Sewing Machine Co., 49 Ga. 70; 15 Am. K. 674. Nor to 
 cases of libel or of slander, or of false representations as to the character or quality 
 of the plaintiif's property, or as to his title thereto, which involves no breach of 
 trust or of contract. Boston Diatitle v. Florence Mfg. Co. 114 Mass. 69; 19 Am. 
 E. 310. A corn and flouring mill in a city has also been held not to be a nuisance. 
 Green v. Lake, 54 Miss. 540; 28 Am. R 378. 
 
 ' Story" s Eq. Jurisprudence, ? 925, et seq. 
 
 ' Ibid., § 926. Erecting dangerous wooden buUdings a nuisance. Blane v. Mur- 
 ray, 36 La. 162; 51 Am. R. 7; note, 10. 
 
 * Minke v. Hofeman, 87 111. 450; 29 Am. B. 63. A livery stable is not neces- 
 sarily a nuisance, but it may become one by the way in which it is used, and thus 
 be a proper subject for an mjunction. Shiras v. Olinger, 50 Iowa, 571, 32 Am. E. 
 138, and notes 141; Kirkman v. Handy, 11 Humphreys, 406; 54 Am. Dec. 45; lb., 
 note, p. 350; Slaughter-house not per se but prima facie a nuisance. Pruner & 
 Hubbies v. Pendleton, 75 Va. 516. Contra, Catlln v. "Valentine, 9 Paige, 575; 38 
 Am. Dec. 567. But see Eeichert v. Geers, 98 Ind. 73; 49 Am. E. 736. 
 
 ' Story's Eq. Jurisprudence, § 926 a; Inhabitants of Watertown v. Mayo, 109 
 Mass. 315; 12 Am. E. 694. 
 
 "Eichmond Mfg. Co. v. Atlantic De Laine Co., 10 E. I. 106; 14 Am. E. 658. 
 
 ' Coalter v. Hunter, &c., 4 Eand. 58; Gardner v. Village of Newburgh, 2 Johns. 
 
 Chy. E. 162; Belknap, &c. v. Belknap, &c., Ibid. 463; Eeid, &c. v. Gifford, 6 
 
 Ibid. 19; Belknap v. Trimble, &c., 3 Paige Chy. E. 577; Stokes & Smith v. Upper 
 
 Appomattox Co., 3 Leigh, 318; Arthur, &o. v. Case, 1 Paige, 477; Ogletree );. 
 
 McQuagg, 67 Ala. 580; 42 Am. E. 112. 
 
 » Amick V. Tharp, 13 Grat. 564; Burwell v. Hobson, 12 Grat. 322; Switzer v. 
 McCullough, 76 Va. 777. ' 
 
 " But it was held that a State legislature has power to authorize the erection of 
 a toll bridge at the crossing of a stream by a public highway, and that it is imma- 
 terial that the riparian owners are operating a ferry at the crossing, the value of 
 which wiU be impaired by the bridge. Jones v. Keith, 37 Texas, 399; 14 Am. E. 
 382. But see Mason v. Harper's Ferry Bridge Co., 16 W. Va. 864; 17 Id. 396. 
 
§ 135 THE GEOUNDS FOR AN INJUNCTION. 465 
 
 disturbance of burial grounds ; ' the undue ringing of church 
 bells ; ^ the dangerous digging up of soil ; ' using an adjoining 
 house as a house of prostitution ; * damming up a sluggish stream 
 so as to make it injurious to health ; ° the violation of a statu- 
 tory privilege, such as opening a new road to avoid the pay- 
 ment of toll on an established turnpike ; * the disturbance of 
 another's rest ; ' acting under color of a statute, but in violation 
 thereof;' burning bricks on one's own ground;^ leaving open 
 sewers ; creating a dense smoke and cinders ; causing smoke and 
 effluvia to issue from a factory chimney, and the creation of a 
 noise thereby ; the creation of smoke when not accompanied with 
 noise or noxious vapors ; ^° keeping a livery stable too near a resi- 
 
 1 Trustees, &c. v. Walsh, 57 lU. 363; 11 Am. R. 21; Boyce v. Kalbaugh, 47 
 Md. 334; Burke v. WaU, 29 La. 38; 29 Am. R. 316; Mount Moriah Cem. Ass'n 
 V. Com., 81 Penn. 235; 22 Am. R. 743. A burial ground near a dwelling is not 
 a nuisance per se. Monk v. Packard, 71 Me. 309; 36 Am. R. 315; Kingsbury v. 
 Flowers, 65 Ala. 479; 39 Am. R. 14; note, 16. 
 
 2 Davis V. Sawyer, 133 Mass. 289; 43 Am. R. 519; notes, p. 522 to 526. 
 ' High on Injunctions, § 927. 
 
 'Hamilton v. Whitridge, 11 Md. 128; Marsan v. French, 61 Tex. 173; 48 Am. 
 R. 272; note, 274; Gray v. Ayres, 7 Dana, 375; 32 Am. Dec. 107; note. 111. 
 
 * Miller v. Truehart, 4 Leigh, 569. 
 
 'The Croton Turnpike Co. v. Ryders, &c., 1 Johns. Chy. R. 611; Livingston, 
 &c. V. Van Ingen, &c. , 9 Johns. R. 507 ; Livingston v. Ogden, &c. , 4 Johns. Chy. 
 R. 48; Ogden v. Gibbons, Ibid. 150; 17 Johns. R. 488; 9 Wheat. 1; Livingston 
 V. Tompkins, 4 Johns. Chy. 415; Livingston v. Gibbons, Ibid. 571; N. River Co. 
 V. Hoflfinan, 5 Ibid. 300; Lancing, &c. v. N. River Co., 7 Ibid. 162; Steamboat 
 Co. V. Livingston, 1 Hopkins' Chy. R. 149. 
 
 'Daniel's Chy. Pr., Vol. 2, p. 1635, and note. 
 
 'Belknap, &c. v. Belknap, &o., 2 Johns. Chy. R. 463; Couch, &c. v. Ulster and 
 Orange Tuanpike Co., 4 Johns. Chy. R. 26; Hart, &o. v. Mayor, &c. of Albany, 
 3 Paige, 213; Coats v. Clarence Railway Co., Kress & Mylne, 181; 4 Cond. Eng. 
 Chy. R. 378; Perry v. Wilson, 7 Mass. R. 393; Stevens v. Middlesex Canal, 12 
 Maes. R. 466; Callender v. Marsh, 1 Pick. 418; Crenshaw v. The Slate River Co., 
 6 Rand. 245; Stokes & Smith ». Upper Appomattox Co., 3 Leigh, 318; Gardner 
 V. The Village of Newburgh, 2 Johns. Chy. R. 162; Ogden v. Gibbons, 4 Johns. 
 Chy. R. 160; Newburgh Turnpike Co. v. Miller, 5 Johns. Chy. E. Ill; The 
 Charles River Bridge v. The Warren Bridge, 6 Pick. 376; The Enfield Bridge Co. 
 V. The Connecticut River Co., 7 Conn. R. 28. 
 
 'But see Huckenstine's Appeal, 70 Penn. St. 102; 10 Am. E. 669. 
 i» Daniel's Chy. Pr., Vol. 2, p. 1635 and note. 
 
 30 
 
466 INJUNCTIONS. § 135 
 
 dence ; keeping a hog-pen ; the manufacture of gas too near to 
 dwellings ; ^ jarring a house by the use of steam machinery ; ^ and 
 such like things, many of which are right and lawful in them- 
 selves, but by inappropriateness of time and place may become 
 either public or private nuisances.' 
 
 To entitle a party to an injunction he must show that the an- 
 noyance or inconvenience is such as materially to interfere with 
 the ordinary comforts of human existence; or in reference to 
 property that the injury arising from the matter complained of is 
 such as visibly to diminish the value of the property, and the com- 
 fort and enjoyment of it.^ He ■vsfho seeks the relief must show 
 due diligenc in the assertion of his rights, for when the complain- 
 ant has been guilty of great laches, or has allowed the defendant 
 
 '■ High on Injunctions, U 490, 491, 492, 493. 
 
 ^ Dittman v. Kep, 50 Md. 516; 33 Am. E. 325; B. & P. K. K. Co. v. Fifth Bap- 
 tist Church, 108 U. S. R. 317. Against the manufacture of steam boilers. Fish 
 V. Dodge, 4 Denio, 311; 47 Am. Dec. 254; note, 247. As to the use and erection 
 of machinery generally, see Rouse v. Martin, 75 Ala. 510; 51 Am. R. 463; note 
 
 467 to 475. Smeltmg works. Appeal of Penn. Land Co., 96 Penn. 116; 42 Am. 
 R. 534; note 540. Planing-mill and cotton-gin held not to be a nuisance. Dorsey 
 V. Allen, 85 N. C. 358; 39 Am. R. 704; note 707. As to the use of a steam en- 
 gine. Burbank v. Bethel Steam Mill Co., 75 Me. 373; 46 Am. R. 400. 
 
 ' Injunction denied against keeping open a liquor saloon. State ex rel v. Craw- 
 ford, 28 Kans. 726; 42 Am. R. 182. Denied against erection of a private stable. 
 Dargan v. WaddiU, 9 Iredell's Law, 244; 49 Am. Dec. 421; RonnsaviUe v. Kolh- 
 heim, 68 Ga. 668; 45 Am. R. 505; Keiser v. Lovett, 85 Ind. 240; 44 Am R. 10. 
 Standing stallion in full view of a dweUing-house enjoined. Farrell v. Cook, 16 
 Neb. 483; 49 Am. R. 721. Powder magazine held a nuisance. Emory v.. Hazard 
 Powder Co. 22 S. C. 476; 53 Am. R. 730; McAndrews v. CoUerd, 13 Vroom, 189; 
 36 Am. R. 508. Keeping gunpowder on private premises held a nuisance. Heeg 
 V. Ficht, 80 N. Y. 579; 36 Am. R. 654. A liberty-pole held not necessarily a 
 nuisance. City of Alleghany v. Zimmerman, 95 Penn, 287 ; 40 Am. R. 649. As 
 to whether coasting is a nuisance, see Faulkner v. Aurora, 85 Ind. 130; 44 Am. R. 
 1. Injunction refused to sale of adulterated tea. Health Department v. Pardon, 
 99 N. Y. 237 ; 52 Am. R. 22. Building in seven feet from line of a city street, with- 
 out the erection of barriers, is not a nuisance, nor wrongful ptr se. Emmerson v. 
 Fay, 94 Va. 60. 
 
 * Daniel's Chy. Pr., Vol. 2, p. 1635, and note; Adams v. Michael, 38 Md. 123; 
 Hall V. Rood, 40 Mich. 46; 29 Am. R. 528. The erection of a wharf in tide- 
 water, which did not interfere with navigation, was held not to be a nuisance justi- 
 fying an injunction. Thornton v. Grant, 10 R. I. 467; 14 Am. R. 701. 
 
§ 135 " THE GROUNDS FOR AN INJUNCTION. 467 
 
 for a long period to continue in the erection of his obnoxious 
 structure at great expense and without molestation, equity will not 
 interfere.* 
 
 V. Against the Infrifigement of Patents and Copyrights. — The 
 power to grant injunctions to prevent the violation of patent-rights 
 and copy-rights is vested by act of Congress ^ in the circuit and dis- 
 trict courts of the United States ; and where the right asserted is 
 founded on a privilege secured to complainant in the character of 
 a patentee, the jurisdiction of the United States courts is exclusive. 
 It is otherwise if the matter in controversy relates to the specific 
 performance of a contract to convey a patent ; to an action to re- 
 cover the price paid for a patent because of the failure of consid- 
 eration because the patent is void for want of novelty ; ' to a suit 
 to enforce the covenants of a licensee ; or for the protection of a 
 patented machine in the mere right of property ; and in these 
 cases, or where the right of the purchaser of a patented machine 
 is enjoined, he must seek redress in the courts of the State accord- 
 ing to its laws.* It has been held, however, that a grantee of a 
 patent, or one claiming under him, may sue in the Federal courts 
 to prevent an infringement of his rights ; and the fact that the suit 
 may involve the construction of a contract as well as of the patent 
 will not oust the court of its jurisdiction.' 
 
 Unlike the other grounds for injunction which we are consider- 
 ing, jurisdiction of the courts of equity does not rest upon the 
 
 ' High on Injunctions, § 275; Bankart v. Houghton, 27 Beav. 425, 428; 2 Dan- 
 iel's Chy. Pr. 1640,note; Thomas v. Wondman, 23 Kans. 217; 33 Am. E. 156. 
 
 2 Abbott's U. S. Pr., Vol. 4, pp. 43, 55, 124 f, 306. 
 
 »Bice«. Gamhart, 34 Wis. 453; 17 Am. E. 448. 
 
 'Abbott's U. S. Pr., Vol. 1, p. 543; Middlebrook v. Broadbents et al, 47 N. Y. 
 443; Burrall v. Jewett, 2 Paige, 134; Darst v. Brockway, 11 Ohio, 462; Cross v. 
 Huntly, 13 "Wend. 385; Head v. Stevens, 19 Ibid. 411; Hat Sweat Mfg. Co. v. 
 Eeinoehl, 102 N. Y. 167; 55 Am. E. 793; Maurice v. Devol, 23 W. Va. 247. 
 
 ^ Littlefield v. Perry, 21 Wall. 205. As to trade-marks, see Holm^, &o. v. 
 Holmes, &c., 37 Conn. 278; 19 Am. E. 324; Meriden Britannia Co. o. Parker, 39 
 Conn. 450; 12 Am. E. 401; Laird v. Wilder, 9 Bush, 136, 15 Am. E. 707; Taylor 
 „. Gillies etcd, 59 N. Y. 331; 17 Am. E. 333; Eobertson v, Berry, 50 Md. 591; 33 
 Am. E. 328, As to publications, Jbid., p. 335, note. 
 
468 INJUNCTIONS. ■ § 135 
 
 question of the competency of the remedy at law, but the aggrieved 
 party has his choice to proceed either by action or by injunction.^ 
 Provision is made however, for the trial by jury of questions of 
 fact arising in such cases ; ^ and when the matter goes to a jury, 
 at least in actions at law, they must determine the question of 
 identity between the patents.' 
 
 VI. To Enjoin Sales under Execution. — The statute of Virginia * 
 makes provision for quashing an execution upon notice regularly 
 served, on motion to the court whose clerk issued the execution, 
 or when issued from the circuit court by the judge in vacation,'^ 
 
 1 Abbott's U. S. Practice, Vol. 1, p. 543. 
 ' Desty' s Fed. Procedure, p. 776. 
 
 * Tucker v. Spalding, 13 Wall. 453. For the course of procedui-e in such suits, 
 and the circumstances that amount to an infringement of patents, copy-rights, trade- 
 marks, etc., see High on Injunctions, § 602 to ? 694; 2 Dan. Chy. Pr. 1641 to 1648, 
 and notes. Bill for an account of gains and profits by assignees of patents held 
 demurrable. Koot v. Railway Company, 105 U. S. R. 189. Hayward u. An- 
 drews, 106 U. S. R. 672. As to defences to suits involving patent-rights, see 
 Bates V. Coe, 98 U. S. R. 31. For proceedings by injunction against the use 
 of trade-marks, see Taylor v. Carpenter, 11 Paige, 292 ; 42 Am. Dea 114 ; 
 Partridge v. Menck, 2 Barbour's Chy. 101; 47 Am. Dec. 281; note, 284 to 299. 
 For the rules in respect to restraining the use of a name in connection with a 
 trade-mark, or of a trade-mark itself, see Olin v. Bate, 98 111. 53 ; 38 Am. R. 
 78; note, 81 to 83; Canal Co. v. Clark, 13 Wall. 311; Mfg. Co. ■•:. Trainer, 101 
 U. S. R. 51; McLean v. Fleming, 96 U. S. R. 252; Brown Chemical Co. v. Meyer, 
 139 U. S. R. 542; Manhattan Medicine Co. v. Wood, 108 U. S. R. 218; Corbini;. 
 Gould, 133 U. S. R. 308; Meriden Britannia Co. v. Parker, 39 Conn. 450; 12 Am. 
 R. 401; note, 410 to 414; Robertson v. Berry, 50 Md. 591; 33 Am. R. 328; note, 
 335 to 339; Morgan v. Schuyler, 79 N. Y. 490; 35 Am. R. 543; note, 546 to 550; 
 Walter Baker & Co. v. W. H. Baker, 77 Fed. R. 181 ; Baker v. Saunders, 80 
 Fed. R. 890; Singer Mfg. Co. u. June, 163 U. S. R. 204; Nat'l Starch Mfg. Co. 
 V. Duryea, U. S. C. C. Ap., 2 C, 28 Feb., 1897; Rogers v. Taintor, 97 Mass. 295; ■ 
 Helmbold v. Helmbold, 53 Horo. (N. Y.) 453; Gark v. Qark, 25 Barb. 76; Fair- 
 banks V. BeU, 77 Fed. R. 876; Rogers v. Rogers Mfg. Co., 70 Fed. E. 1017. 
 
 * I 3599. In Snavely v. Harkrader, 30 Grat. 487, it was held that a motion to 
 quash an execution did not suspend its enforcement pending the motion, and as a 
 consequence the mover was driven to an injunction. But the statute now provides 
 that upon bond being executed the court or judge may make an order staying pro- 
 ceedings on the execution vmtil the motion is heard and determined. A similar 
 provision is contained in § 17, Ch. 140, Code W. Va. 
 
 5 The statute (§ 3434 ; Code W. Va., Ch. 133, ? 1) also provides for an injunc- 
 tion to protect specific property, which is the subject of a suit, from injury from 
 
§ 135 ' THE GEODNDS FOE AN INJUNCTION. 469 
 
 and with a right in the judge or court to make an order staying 
 proceedings on the execution until the motion can be heard. 
 
 Even before the enactment of the statute it was held that it was 
 competent to the court in term to quash an execution improperly 
 issued; but it was also held that it was equally competent to 
 the judge in vacation to restrain proceedings upon it by an injunc- 
 tion.* The enactment of this statute did not change the jurisdic- 
 tion of the court in any case in which the remedy by motion to 
 quash is not equally adequate and efficacious ; hence, it has been 
 held,^ that where, in order to give the notice of the motion as re- 
 quired by the statute, a publication would be necessary, and dur- 
 ing the delay essential for that purpose the property would be 
 levied on and sold, an injunction could properly be granted to re- 
 strain a sale under the execution. 
 
 The general rule, however, is, that if the complainant has a 
 plain, adequate and sufficient remedy at law, he cannot apply to 
 equity for relief against a sale under an execution ; ^ and the ques- 
 tion of jurisdiction in each case will be determined by considering 
 whether the remedy at law is or is not sufficient to give proper 
 protection.* Hence it has been held, that an injunction could 
 properly be granted where a sale under an execution would involve 
 loss of trade, destruction of credit, and failure of business pros- 
 pects, which could not be compensated for at law ; ^ and the same 
 was held where the case presented several complicated questions of 
 law and fact, as the genuineness of the judgment creditor's receipt 
 and discharge ; its effect at law ; the fairness of the transaction ; 
 
 sale, removal or concealment, and (? 3656; Code W. Va., Ch. 133, | 1) also to 
 enjoin the sale of exempt property and to prevent exempt wages from being gar- 
 nisheed, etc. 
 
 1 Shackelford v. Apperson, 6 Grat. 451 ; Windi'um v Parker ei al, 2 Leigh, 361. 
 
 ^ Snavely et als v. Harkrader, 30 Grat. 493. 
 
 * Watson V. Sutherland, 5 Wall. 78; Baker et als v. Ehinehard, Mayer & Co. et 
 cd, 11 W. Va. 238. 
 
 * Beckley v. Palmer, 11 Grat. 625. 
 
 ' Watson V. Sutherland, 5 Wall. 78. Where the injunction was to prevent a 
 sale by a sheriff for the payment of taxes, see Lewis v. Spencer, 7 W. Va. 681. 
 
470 INJUNCTIONS. ' § 135 
 
 the effect of an agent's endorsement, involving the question of 
 whether his agency was not destroyed by the presence and acting 
 of the principal, and the equity of the agent's pretensions in law 
 and fact.^ Jurisdiction in equity was also sustained where there 
 was a conflict between two execution creditors ; ^ where judgments 
 were obtained at law against an administrator when he thought the 
 assets of the estate were sufficient to pay all the debts,^ and where 
 under similar circumstances executors confessed judgment, and 
 gave a forthcoming bond.* 
 
 Upon the principles of equity, things to which the pretium affee- 
 tionis attaches, when levied upon, present a proper subject for 
 equitable relief; ° hence, levies upon slaves under executions were 
 frequently restrained by injunctions.^ Fraud and mistake being 
 pecularly subjects for equitable intervention, afford also good 
 ground for staying executions issued on judgments rendered under 
 either of these circumstances ; ' the relief indeed going to the 
 judgment which authorized the execution ; and when the judgment 
 is set aside the execution falls with it, even without an expi'ess 
 order quashing it.' 
 
 On the other hand, where an execution debtor claimed that he 
 had not been credited with all the money paid by him to the sheriff 
 on an execution, it was held that he might have relief from the 
 court from whence the execution issued, and it was not a case for 
 an injunction and relief in equity.^ 
 
 ' Crawford v. Thurmond et ah, 3 Leigh, 85. 
 
 ^ High on Injunctions, § 149. And it is also held that an equity of redemption 
 which is subject to the lien of a fieri facias can only be sold by proceedings in 
 chancery. Doheny v. Atlantic Dynamite Co., 41 W. Va. 1. 
 
 ' Eoyall's Adm'r v. Johnson et ah, 1 Band. 421. 
 
 * Miller's Ex' or v. Kice et ah, 1 Band. 438. 
 
 'Randolph v. Kandolph, 6 Band. 198; Allen v. Freeland, 3 Band. 175. 
 
 « Wilson & Trent v. Butler, 3 Munf 559; Allen v. Freeland, 3 Band. 175; Ban- 
 dolph V. Eandolph, 6 Band. 198; Harrison v. Sims, Ibid. 507; Hughes v. Pledge, 
 1 Leigh, 443; Chapman v. Washington, 4 Call. 327; Sampson v. Mitchell's Ex' or, 
 5 Munf. 175; Scott and Wife v. HoUiday, &c., 5 Munf. 103; Hickerson'a Adm'r v. 
 Helm, 2 Bob. 687. 
 
 'High on Injunctions, § 111 to § 118. 
 
 * Chan-on v. Boswell, 18 Grat. 216. " Morrison v. Speer, 10 Grat. 228. 
 
§ 135 THE GROUNDS FOE AK INJUNCTION. 471 
 
 Injunctions have also been refused where the complaint was of 
 an irregularity in the proceedings antecedent to the judgment ; 
 where the bill admitted an indebtedness without oftering to pay it ; 
 where a judgment was irregularly entered up against the wrong 
 man ; and where the judgment was void for want of jurisdiction 
 in the court.* 
 
 VII. To Enjoin Sales under Trusts. — Trusts are especially the 
 subjects of equitable supervision, and the courts of equity ^ are 
 always open, at the instance of the cestui que trusts, to compel 
 trustees to perform their duties. They will also interfere by in- 
 junction to restrain the improper exercise of the powei-s of the 
 trustee ; the disposition of the fund by an insolvent trustee ; or 
 against a bankrupt trustee.^ So injunctions have been granted 
 against the administration of a trust by an executor of bad char- 
 acter, drunken habits, or great poverty, although it is said that the 
 court will not interfere if the trustee or executor is merely poor,* 
 but it may nevertheless compel him to give security.^ 
 
 This practice of interference does not appear to rest merely on 
 the ground of irreparable injury, although it is said * to be well 
 established that the cestui que trust is entitled to an injunction 
 when the intended acts, if done by the trustee, will be irremedi- 
 
 ^ High on Injunctions, § 129 to § 131. For the statutory provision for the cor- 
 rection of errors, see U 3451, 3452; Code W. Va., Ch. 134, H 5, 6. The limita- 
 tion in Virginia is three years, while in West Virginia it is five. See 1 Bart. Law 
 Pr. 566. This statute is confined to judgments or decrees by default. Thompson 
 V. Carpenter, 88 Va. 702. 
 
 '' See Dryden, Adm' r, v. Stephens el al, 19 W. Va. 1 ; Hartman v. Evans, 38 W. 
 Va. 669. 
 
 « Hogan V. Duke, 20 Grat. 244. 
 
 * Perry on Trusts, § 816. See also 4 W. Va. 186. 
 
 * Terry v. Fitzgerald et al, 32 Grat. 843. When a trustee denies the trust and 
 refuses to perform it, a court of equity will appoint a new trustee in his place. 
 Irvine v. Dunham, 111 U. S. E. 327. He may also be required to give bond and 
 if he fails so to do, he may be removed. ? 3420; Code W. Va., Ch. 72, ? 6. 
 
 * Perry on Trusts, § 816, and cases cited in note 3. See also Kiggs v. Armstrong, 
 23 W. Va. 769; Eacho v. Cosby, 26 Grat. 112. If creditor and trustee are parties 
 to suit, trustee may not sell pending the same. Parsons v. Snider, 42 W. Va. 517; 
 26 S. E. R. 286. 
 
472 INJUNCTIONS. § 135 
 
 able ; but in cases of trusts for the benefit of creditors the ground 
 for equitable interference is mainly that of irremediable injury, 
 and also because the machinery of a court of equity is alone able 
 to afford the proper degree of relief in such cases.' 
 
 Sales under deeds of trust are prolific subjects of litigation, the 
 courts being frequently called on to see to the due execution of the 
 trust in all its requirements. Thus, where property is conveyed 
 to a trustee to sell at public auction, the trustee has no power to 
 sell except at public auction, although he may promote the inter- 
 ests of the grantor by selling at private sale.^ And in all respects 
 the sale under a deed of trust should be according to the very 
 terms of the deed.^ Where, however, the court having taken 
 jurisdiction of the enforcement of a deed of trust, retained it (as 
 it may do, even when it might also be proper to dissolve the in- 
 junction and dismiss the bill^), the deed providing that the terms 
 of sale should be for cash, and the decree of the lower court 
 directing a sale for a certain portion in cash and the residue in 
 one, two and three years, it was held on appeal that at least the 
 appellant, who was the debtor, could not complain of that.° 
 
 It is also equally necessary that the advertisement of the sale 
 should be as provided for by the deed ; ^ and where the sale' was 
 made under two deeds of trust, one of which required an adver- 
 tisement for fifteen days, and the other for ten days, it was held 
 
 1 High on Injunctions, i 309-311. 
 
 ^Adams' Eq., p. 194, note; Greenleaf«. Queen, 1 Pet. E. 138. 
 
 * Gibson v. Jones, 5 Leigh, 375; Hogan v. Duke, 20 Grat. 257. Advertisement 
 of all the property conveyed when the trust provides for sale of so much as will 
 satisfy the debt, not to be enjoined, for it is assumed that the trustee would in 
 making the sale follow the law and only sell enough to pay the debt. Moore v. 
 Barksdale, Va. ; 25 S. E. E. 529. 
 
 *Michie v. Jefiries et al, 21 Grat. 334; Eobinson v. May's Trustee, 76 Va. 708; 
 Zell Guano Co. v. Heatherly, 38 W. Va. 409 ; Hartman v. Evans, 38 Va. 680 ; 
 Aderson v. Phlegar, Trustee, 93 Va. 415. 
 
 » Michie v. Jeflfries, 21 Grat. 334. When a trustee sold at private sale consider- 
 ably below the value of the property he was held responsible. Wimbish, Assignee, 
 V. Blank's Trustee, 76 Va. 365. 
 
 "ShiUaberi). Eobinson, 97 U. S. 68; Gibsons Jones, &c., 5 Leigh, 370. See also 
 Dyer v. Shurtleff, 112 Mass. 165; 17 Am. E. 77. 
 
§ 135 THE GEOUNDS FOE AN INJUNCTION. 473 
 
 that the notice should be given according to the longest time, 
 especially if the deed requiring the longest time was the first one 
 executed.^ 
 
 It is also necessary that the trustee shall have the legal title,^ 
 that the title shall be free from cloud or doubt,* and he must sell 
 personally, for he cannot delegate his powers and discretion to 
 another.^ Where there is more than one trustee, all of them 
 should unite in the sale and in the deed ; but where one of two 
 trustees refused so to unite, it was held that the other could make 
 a Valid sale." Where the deed does not fix the place for the sale, 
 the trustee may make it at any place which in his discretion he 
 may select ; but he should exercise- that discretion fairly and 
 prudently ; ^ and he cannot sell more of the trust subject than is 
 necessary to satisfy the debt, unless the interests of the owners 
 demand it, or they request it,'^ or unless it would be injurious not 
 to sell the whole.* This rule relates of course to a divisible sub- 
 ject, the trustee's duty in every case being to act for the best in- 
 terests of all the parties.' 
 
 In every case it is essential -that, before there is a sale or rental, 
 the amounts, priorities, and ownerships of the debts secured by 
 
 ' Bailey v. Hill, 77 Va. 492. As to reckoning the time when Sunday intervenes, 
 see Bowles v. Brauer, 89 Va. 466; Morriss v. Va. State Ins. Co., 85 Va. 588; 18 
 S. E. E. 813. 
 
 2 Eossett V. Fisher, 11 Grat. 492; Curry v. Hill, 18 W. Va. 370. 
 
 ' Miller v. Argyle's Ex' or, &c., 5 Leigh, 460; Shultz et als v. Hansbrough et 
 ah, 33 Grrat. 576; Hudgins v. Lanier Bros. & Co., 23 Grat. 494; Shurtz et als v. 
 Johnson et als, 28 Grat. 661; Ealston v. Miller, 3 Eand. 44; Koger ». Kane, 5 
 Leigh, 606; Clarke v. Hardgrove, 7 Grat. 399; Peers v. Barnet, 12 Grat. 416; 
 Faulkner v. Davis et als, 18 Grat. 651; Bryan v. Stump, &c., 8 Grat. 241; Vande- 
 ver's Appeal, 8 Watts & Sergt. 405; 42 Am. Dec. 199. As to conveyances by 
 trustees, see Gale v. Mensing, 20 Mo. 461; 64 Am. Dec. 197; note, 199 to 203. 
 
 * Smith V. Lowther, 35 W. Va. 300. 
 
 6 Gr^me v. Cullen et als. 23 Grat. 266. 
 
 " Shurtz et als v. Johnson, 28 Grat. 661. The deed in this ease gave the trustee 
 the selection of the place. But see Morriss v. Va. State Ins. Co., 85 Va. 588; 18 
 S. E. E. 813, which sustains what is said in the text. 
 
 ' Michie v. Jefiries et al, 21 Grat. 334; MuUer's Adm'r v. Stone, 84 Va. 839. 
 
 « Anchor Stove Works v. Gray, 9 W. Va. 469. 
 
 » Terry v. Fitzgerald et al, 32 Grat. 843. 
 
474 iNJUNCTionTs. § 135 
 
 the deed shall be fully ascertained and settled ; * and where there 
 are various encumbrances on property, and the priorities have not 
 been ascertained, a sale by a trustee under one of the deeds is im- 
 proper." 
 
 A gross sacrifice of the property at public sale, when it is made 
 under improper or unfair circumstances,^ will often justify an in- 
 junction to suspend it ; but the fact that money is scarce, that the 
 large amount of cash required will cause an irreparable loss to the 
 owner of the property,* that only a few bidders were present," or 
 that the price was inadequate, unless it is sufficiently so to shock 
 the conscience of the chancellor,* does not afford just ground for 
 an injunction/ 
 
 'Gibson v. Jones, 5 Leigh, 370; Wilkins v. Gordon and Wife, 11 Leigh, 547; 
 Hudgins v. Lanier Bros. & Co., 23 Grat. 494; Shurtz et al v. Johnson et ah, 28 
 Grat. 657; Shultz«« ah v. Hansbrough et ah, 33 Grat. 579. 
 
 ' Washington, Alex, and Geo. E. K. Co. v. Alex, and Wash. E. E. Co. et als, 
 19 Grat. 592. This is the decision of a military court (?), but it is sustained by 
 authority. See Cole's Adm'r v. McEae, 6 Eand. 644; Eosset v. Fisher et ah, 11 
 Grat. 492; laege v. Bossieux, 15 Grat. 103; Buchanan v. Clark, &c., 10 Grat. 164; 
 Beard v. Arbuckle, 19 W. Va. 135. For the application of this rule to judicial 
 sales generally, see Ante, § 52, and Post, § 333. In Effinger v. Kinney, Trustee, 
 79 Va. 551, it was doubted if this rule applied to a vendor's or purchase-money 
 lien, and in Arnold v. Cobume, 32 W. Va. 272, is was held that it did not so apply. 
 See also Turk v. Skiles, 38 W. Va. 404. The rule itself in that it denies to the 
 judge any discretion to decree a sale until all debts have been ascertained and all 
 litigated questions adjudicated, is injurious to both creditor and debtor, and the 
 tendency is to relax its application. When trust sales have actually been made 
 they will not be set aside except for weighty reasons (Corrothers v. Harris, 23 W. 
 Va. 177) ; they will not be set aside after sale because the property was encumbered 
 by other trusts and judgment liens, especially when it appears that there is no real 
 uncertainty or controversy as to the amounts and priorities of such liens. Lallance 
 V. Fisher, 29 W. Va. 512. See on this subject. Am. & Eng. Encyc. of Law, Vol. 
 26, p. 975. 
 
 'High on Injunctions, § 309. A trustee's sale will not be set aside for inade- 
 quacy alone unless the inadequacy is so gross as to justify the presumption of fraud. 
 Lallance v. Fisher, 29 W. Va. 512; 23 S. E. E. 775. Nor in any event except for 
 weighty reasons. Corrothers v. Harris, 23 W. Va. 177, 182. 
 
 *Muller, &c. v. Bayley et al, 21 Grat. 521. 
 
 ^ Hudgins v. Lanier Bros. & Co., 23 Grat. 494. 
 
 <! Qark v. Trust Co., 110 U. S. E. 152; HUl on Trustees, 152, note; Hubbard v. 
 Jarrell, 23 Md. 66; Lallance v. Fisher, 29 W. Va. 512; 23 S. E. E. 775. 
 
 ' On the subject of judicial sales under trust deeds and otherwise, see Post, I 333. 
 
§ 135 THE GROUNDS FOR AN INJUNCTION. 475 
 
 The mere fact that the debtor has an unliquidated claim against 
 the creditor, will not entitle him to an injunction to stay a sale 
 under a deed of trust ; ' nor indeed will any mere offset have that 
 effect, unless the creditor be otherwise insolvent ; ^ although, as we 
 
 Inadequacy of price not ground for injunction if sale fair and free from fraud and 
 in accordance with terms of deed of trust. Old Dom. Ins. Co. v. Moorman, Va. ; 
 25 S. E. E. 540. 
 
 'High on Injunctions, ? 311; Robertson v. Hogsheads, 3 Leigh, 667. 
 
 ^ High on Injunctions, § 141. Defences of this general character may be made 
 at law under the provisions of J 3299 of the Code (1 Barton's Law Pr. 514), 
 except that if the equitable grounds of defence require a rescission of the con- 
 tract in suit, and a reinvestment of the vendor with the interest alleged to have 
 been sold, the defence can only be made in equity. Mangus v. McClelland, 93 
 Va. 786. But these general equitable grounds of defence are of frequent applica- 
 tion in suits in equity to rescind contracts, to enjoin the sales of land, to restrain 
 the prosecution of actions at law, to set aside judgments at law, and in suits upon 
 demands as to which equity, for one reason and another, has jurisdiction. We 
 have already seen'(jlnte, p. 39) how far a defendant must exercise his election 
 between defending at law and seeking relief in equity. In either case the equitable 
 rules prevail, but one primary condition applicable alike to both tribunals is, that 
 relief on these grounds will not be granted if the defendant has unduly delayed 
 the assertion of his rights, for a party will forfeit all claim to a rescission of his 
 contract by his own laches, and if meanwhile the rights of creditors have inter- 
 vened, or an innocent third party has acquired an interest in the property, or if 
 in consequence of his delay, the position of even a wrong doer is affected, the party 
 seeking rescission on the ground of fraud will be deemed to have waived his right 
 to rescind. If, however, the delay has not prejudiced creditors, innocent third 
 parties, nor the other party to the contract, and there has been no ratification of 
 the contract by the party asking rescission, relief should be afforded him. Grosh 
 V. Ivanhoe Land Co., 95 Va. 171; Martin v. South Salem Land Co., 94 Va. 28; 
 Hurt V. Miller, 95 Va. 32; Sunmons -o. Palmer, 93 Va. 389; Hudson v. Waugh, 
 Id. 518; McClanahan v. Ivanhoe L. & M. I. Co., Va.; 30 S. E. R. 450. 
 
 Where the contract is for a subscription to stock of a corporation, actual or con- 
 templated, in spite of the comprehensive provisions of the statute (Code, J 3299) 
 which permit defences of this character to be made "in any action on a contract," 
 the rule settled by the court of appeals, in conformity with the decisions of courts 
 of States which have no statute similar to ours, is declared to be that "fraud or 
 false representations in the procurement of a contract of subscription to stock are 
 grounds for rescission of the contract in the same manner as if the question had 
 arisen between two natural persona, provided the question arises between the con- 
 tracting parties and the rights of third persons are not involved. But a contract 
 procured by fraud is not void, but voidable only at the option of the party de- 
 frauded. It is binding upon him until it is rescinded, and if before he exercises 
 the option to rescind, innocent third persons have, in reliance on the fraudulent 
 contract, acquired rights which would be prejudiced by its rescission, they may 
 
476 INJUNCTIONS. § 135 
 
 have seen, an unsettled account of credits will entitle the debtor 
 to an injunction.^ 
 
 In the case of Koger et als v. Kane's Adm'r et als, 5 Leigh, 106, 
 
 ^ Hogan V. Duke et als, 20 Grat. 253. It is certainly the duty of a trustee who 
 knows of douds upon the title or of uncertain or disputed incumbrances, to go into 
 equity to have the title cleared and the inciunbrances adjusted before he sells, but 
 if a sale has in fact been made it cannot be set aside for these reasons at the prayer 
 of a party in default. Spencer and Miller v. Lee, 19 W. Va. 188. There may be 
 a personal decree for excess of debt oyer proceeds of sale. Tatum v. Ballard, 94 
 Va. 375; 27 S. E. E. 871. 
 
 generally have it enforced for their benefit, although the party by whose fraud it 
 was procured could not do so." Martin v. South Salem Land Co., 94 Va. 49; 
 Southwest Virginia M. L. Co. v. Chase, Va. ; 27 S. E. B. 827. 
 
 Subject to such exceptions, the general rule defining these grounds of defence 
 has been settled as far back as the case of Grim v. Byrd, 32 Grat. 193 (and indeed 
 by Virginia cases of an earlier date), wherein Judge Staples says, "the doctrine 
 is believed to be well settled in the United States, that a false representation of a 
 material fact, constituting an inducement to the contract, on which the purchaser 
 had a right to rely, is a ground for a rescission by a court of equity, although the 
 party making the representation was ignorant as to whether it was true or false; 
 and the real enquiry is not whether the vendor knew the representation to be 
 false, but whether the purchaser believed it to be true, and was misled by it in 
 entering into the contract. For in such case, whether the false representation was 
 innocently made or knowingly made, the effect is the same upon the purchaser." 
 
 The same doctrine is reiterated in a multitude of cases. See them cited in the 
 notes to pp. 517, 518, 519, 1 Bart. Law Pr. See also Lake v. Tyree, 90 Va. 719; 
 Moore v. Barksdale, Va.; 25 S. E. E. 529; Bluestone Coal Co. ■„. Bell, W. Va.; 
 18 S. E. E. 493; WUson v. Carpenter, 91 Va. 183; Max Meadows Co. v. Brady, 
 92 Va. 71; Orr & Litton v. Goodloe, 93 Va. 263; Columbia Ace. Ass'n Co. v. 
 Eockey, 93 Va. 678; Martin v. South Salem Land Co., 95 Va. 32; Hurt v. Miller, 
 95 Va. 32; Grosh v. Ivanhoe Land Co., 95 Va. 161; Lewis v. Berryville L. & I. 
 Co., 90 Va. 693; Lambeth v. Crystal Springs Co., Va.; 27 S. E. E. 462; Watkins 
 V. West Wytheville L. & I. Co., 92 Va. 1; Beckley v. Eiverside Land Co., Va.; 
 23 S. E. E. 778; Reese v. Bates, 94 Va. 321; Owens v. Boyd L. & I. 'Co., Va.; 28 
 S. E. E. 950; Slothower v. Oak Eidge Land Co., Va. ; 27 S. E. E. 466. See also 
 as to what representations are to be constraed as constituting a warranty and the 
 effect of the same, 1 Bart. Law Pr. 516 et seq., and the clear opinion of the court 
 in the case of Eeese v. Bates, 94 Va. 321. 
 
 But all along through the decided cases has run this thread of discrimination, 
 that the misrepresentations complamed of must have been of a material fact, in- 
 ducing the contract, and on which the other contracting party had a right to rely 
 and did rely, and whereby he was misled to his injury. Lowe v. Trundle, 78 Va. 
 65; Lake v. Tyree, 90 Va. 719. 
 
 And this discrimination is exemplified by the supreme court of the United States 
 
§ 135 THE GROUNDS FOR AN INJUNCTION. 477 
 
 it was held to have been well settled that in Virginia equity will 
 enjoin the collection of the purchase money of land, on the ground 
 of defect of title, after the vendee has taken possession under a 
 
 in the case of Lehigh Zinc Co. ti. Banford, 150 U. S. R. 665, where the court says: 
 "Fraud upon the part of a vendor or lessor, by means of representation of ma- 
 terial existing facts, is not established unless it appears that such representation 
 was made for the purpose of influencing the purchaser or lessee, and with knowl- 
 edge that they were untrue; but when the representations are material and are 
 made by the vendor or lessor for the purpose of their being acted upon, and they 
 relate to matters which he is bound to know, his actual knowledge of their being 
 untrue is not essential." But consistent with and as flowing from these lines of 
 discrimination is that so well stated by Judge Staples in Grim v. Byrd, 32 Grat. 
 301 : ' ' Now it may be conceded that in all this class of cases, the representation 
 must, as a general rule, be of a fact as distinguished from a mere matter of opinion, 
 which ordinarily is not presumed to deceive or mislead. But even a matter of 
 opinion may amoimt to an afiirmation, and be the inducement to a contract, espec- 
 ially when the parties are not dealing upon equal terms, and one of them has or 
 is presumed to have means of information not equally open to the others." See 
 also authorities cited on the same subject in 1 Bart. Law Pr., p. 517. 
 
 But it would be a serious task to attempt to measure the cases subsequently dis- 
 criminating between what constitutes a fact and what a mere expression of opinion 
 (if indeed they were intended to be so measured), by the rule thus laid down by 
 Judge Staples. In that case, Judge Staples thought a statement made to a pro- 
 posed purchaser of stock in an incorporated company, by the seller, that he could 
 not make a better investment than to purchase the stock, did not profess to be a 
 mere opinion, but was the positive affirmation of a fact. 
 
 It must indeed be the just conclusion from the observation of most men, that 
 whether a statement is intended as the representation of a fact, or is a mere ex- 
 pression of opinion, or indeed mere trade talk, or commendation of ones goods, , 
 depends very largely upon the manner and the circumstances under which the 
 representation was made, and what it was intended to be can often only be gathered 
 by evidence of the circumstances surrounding the parties at the time, and the very 
 mode of utterance of the party making the statement. When, therefore, a plea or 
 bill states a representation which ordinarily construed might have been one of fact, 
 and avers that it was made as a fact, much risk is run of doing injustice when the 
 court with only the paper averment before it undertakes to determine, against the 
 allegations of the pleadings to the contrary, that such a, representation is not a 
 statement of fact but only an expression of opinion. 
 
 In Houghton v. Graybill, 82 Va. 573, a statement by the owner of property that 
 he would not take $200,000 for it, and that he estimated the ship timber on the 
 land as worth $100,000, was naturally held to be mere commendation and not 
 ground for the rescission of a contract. 
 
 In Eorer Iron Co. v. Trout, 83 Va. 397, a lease was obtained upon representa- 
 tions made by the lessees that they were about to engage on a large scale in the 
 business of mining, transporting to market and selling iron ores; that they had 
 
478 INJUNCTIONS. § 135 
 
 conveyance from the vendor with general warranty, if the title is 
 questioned by a suit, either prosecuted or threatened, or if the 
 purchaser can show clearly that the title is defective ; but a doubt 
 
 made or were about making extensive preparations; that they intended to set to 
 work to mine the lessor's ores a large force and employ twenty wagons to haul ore, 
 etc. ; that their preparations would enable them to transj)ort and ship as much as 
 from 100 to 500 tons a day, etc. These representations the court regarded as not 
 opinions merely, but as positive affirmations especially adapted to the end in view, 
 which was to obtain the lease of the mining privileges. 
 
 In Lake v. Tyree, 90 Va. 722, the representation was that certain lots sold were 
 smooth and level and suitable for building purposes. This case went off mainly 
 on the lack of proof and because the defendant had as good means of informing 
 himself of the truth of the statements as the plaintiff had, biit there being no evi- 
 dence of an intention to deceive, the court thought the representation a mere ex- 
 pression of opinion. 
 
 In Wilson v. Carpenter, 91 Va. 183, the representation to a proposed lot buyer 
 that the promoters of the town had already secured, beyond a doubt, $1,500,000 
 from an English syndicate to be used in building up the industries of the town, was 
 held to be the statement of a material fact. 
 
 But in the case of Watkins f. West WytheviUe Co., 92 Va. 1, a departure is 
 apparently taken from what had been considered in Virginia as the proper mode 
 for discriminating between representations which are to be treated as statements of 
 material facts and those which will be regarded as merely expressions of opinion, 
 and the effect of this case and others which have followed it, is to shut out from 
 the jury or from the effect of evidence in aid of such a discrimination, many cases 
 which before that case would have gone to the jury on the proofs or be determined 
 by the court upon a view of all the circumstances under which the representations 
 were made and the manner of making them. 
 
 In this case the first special plea declared that in consideration of the purchase 
 of certain lots, and as an inducement thereto, the plaintiff " iAeji and there failh- 
 fvlly promised the said defendant that there shovM be constructed and built upon said 
 company's land, and near the lots aforesaid, a hotel to cost not less than fifty thou- 
 sand dollars." This plea, which was excluded by the lower court, was admitted 
 on appeal, because it constituted very clearly a part of the consideration of the 
 contract. See comments on this plea in Orr & Littleton v. Goodloe, 93 Va. 266. 
 
 But in plea No. 2 the statement was that the plaintiff " represented that the 
 Jackson Park hotel, to cost fifty thousand dollars, wmM be built on the company's 
 land and near the lots aforesaid." In plea No. 3 the averment was that plaintiff 
 and its agents, " all then and there being duly authorized and acting agents of the 
 plaintiff to sell lots, unden-took and promised to defendant that within a reasonable 
 time there would be erected or built upon the said company's land and near the lots 
 named, a hotel to cost fifty thousand dollars; " that an electric car line would be 
 built very near said hotel, and that on land adjacent and near thereto a large stove 
 and range factory and other manufacturing plants would be erected and were in 
 process of erection. 
 
§ 135 THE GEOUNDS FOE AN INJUNCTION. 479 
 
 is expressed whether this can be done before actual eviction.' It 
 appears, however, to have been decided, both before arid after this 
 case, that an injunction will be sustained after a conveyance, 
 
 ' See the opinion of Cabell, J., appended as a note to the case of Long's Ex' or 
 V. Israel el ah, 9 Leigh, 569. 
 
 These pleas were both excluded, on objection, by the circuit court, and the court 
 of appeals declared that they were properly rejected, because the court could not 
 regard them as constituting "an affirmative statement or affirmation of some fact 
 in contradistinction to a mere expression of opinion." 
 
 Coupling the language of these pleas with the further statement contained also 
 in the pleas that by those representations the plaintiff was induced to and did buy 
 the lots, it is impossible to resist the conclusion that the courts have swung a long 
 way from the lines marlied out by Judge Staples in the case of Grim v. Byrd. 
 
 In Orr & Litton v. Goodloe, 93 Va. 263, an averment that the vendor repre- 
 sented that " they would build as soon as it could be done a substantial bridge across 
 Powell's river * * * and would build as soon as it could be done a large and 
 commodious hotel on a certain knoll," etc., etc., the court declared was "but the 
 expression at most of an existing purpose and not a representation of an existing 
 fact." It is not made clear by the opinion how this expression of an existing 
 purpose differs from any other obligation or existing purpose made the part of a 
 contract and which binds the obligor to do something in the future. 
 
 In Grosh v. Ivanhoe Land Co. , 95 Va. 161, the representations relied on for the 
 rescission of the contract were the usual boastful and extravagant advertisements 
 of the boom companies of the day, and of the statement contained therein that 
 "Ivanhoe, being the only city on the south connection of the N. & W. E. K., has 
 become the great distributing point for the immense ore fields and agricultural 
 timber districts of Southwest Virginia and western North Carolina," was regarded 
 as a positive statement of an existing fact, not that Ivanhoe would become a city, 
 etc., but was a city and the only city, etc., and thus was held to be the statement 
 of a material fact and not a mere opinion, etc. 
 
 In Max Meadows v. Brady, 92 Va. 71, it is not possible from the statement of 
 the case to determine accurately which of the representations averred were re- 
 garded by the court as statements of fact and which were mere expressions of 
 opinion, but the court evidently regarded the one statement that the factories to be 
 erected "would employ from 700 to 1,000 men, and would insure a population of 
 3,000 to 4,000," as a mere expression of opinion or of bouyant expectation, and 
 it is hard to conceive of any conditions under which the use of such language 
 could be differently construed. 
 
 In Moore v. Barksdale, Va. ; 25 S. E. R. 529, the language of the bill for rescis- 
 sion is not given in the statement of the case, but the court held that representa- 
 tions that pipes, would be laid connecting the lots sold with the gas and water com- 
 pany was not a representation of fact, but at most of an existing opinion. So in 
 Wren v. Moncure, 95 Va. 369, it would scarcely be possible for an expression that 
 certain land was available for building purposes to be used in any other sense than 
 
480 INJUNCTIONS. ~ § 135 
 
 althovigh there has been no actual eviction, but upon proof of a 
 better title to the land in a third person.' And where the pur- 
 chaser has to go into equity to restrain the collection of a judg- 
 
 1 Ralston v. MUler, 3 Eand. 44; Kagsdale v. Hagy et als, 9 Grat. 422; Faulkner 
 et ah V. Davis et ah, 18 Grat. 660; 2 Lomax's Digest, p. 368. See also McGary v. 
 Hastings, 39 Cal. 360; 2 Am. R. 456; Rosenberger v. Kellei-'s Adm'r et ah, 33 
 Grat. 494. In Wamsley v. Stalnaker, 24 W. Va. 214, where the Virginia and 
 West Virginia cases on this subject are reviewed at length by Judge Green, it was 
 held that equity will enjoin the collection of the purchase money for land on the 
 ground of default of title, after the vendee has taken possession under conveyance 
 lirom the vendor with general warranty, if the title is questioned by suit either 
 prosecuted or threatened, or if the purchaser can show clearly that the title is 
 defective. See also Kinport v. Eawson, 29 W. Va. 48. But the contrary rule is 
 laid doAvn in Vick v. Pency, 7 Smedes & Marshall, 256; 45 Am. Dec. 303; note, 
 305, and is said to be applicable both at law and in equity. Undoubtedly in Vir- 
 ginia an action for a breach of covenant of warranty of title cannot be maintained 
 unless the plaintiff has been evicted or prevented from taking possession by another 
 in possession under paramount title. Marbury v. Thornton, 82 Va. 702; Jones v. 
 Richmond, 88 Va. 231; Sheffey's Ex'or v. Gardiner, 79 Va. 313; Washington 
 City Savings Bank v. Thornton, 83 Va. 157. As to the rules upon the subject of 
 rescinding executed contracts for the sale of land, except upon grounds of fraud, 
 see Woodruff t). Bunce, 9 Paige, 443; 38 Am. Dec. 559 ^ note, p. 560. 
 
 a mere expression of opinion as the court held it was used. But here also the 
 court had all the evidence before it. 
 
 In Lambert t). Crystal Spring L. Co., Va,; 27 S. E. R. 462, the court held, on 
 the authority of the cases cited in this note, that a representation by the defendant 
 that "arrangements had been made with the R. & S. R. R. Co., the line of which 
 had been determined on, to place a depot or station almost in front of and across 
 the street from the said lots," was the mere expression of an opinion, and the fail- 
 ure to make such improvements constituted no defence to the action. It was in 
 evidence in this case that at the time of the contract for the sale of the lots a con- 
 tract existed between the vendor and the R. & S. R. R. Co. for the erection of a 
 station in accordance with the representations stated in the bUl. 
 
 In Slothower v. Oak Ridge L. Co. , Va. ; 27 S. E. E. 466, the words of the rep- 
 resentations are not given, but the court held that representations which related 
 merdy to future improvements that would be made on the property, such as grad- 
 ing streets, laying water pipes and gas mains, building houses, running a belt line, 
 etc. , were not to be construed as existing facts and could not avail against the con- 
 tract to pay. 
 
 In Owens v. Boyd Land & I. Co., Va. ; 28 S. E. R. 950, the representation com- 
 plained of was that "an agent of the plaintiff represented to the defendant that 
 plaintiff had secured the building of a valuable woolen mill and iron foundry or 
 rolling mill upon its property and had conlraeted for the same." This was held to 
 be a statement of a material fact, but the court at the same time said, ' ' If the plea 
 
§ 136 THE GROUNDS FOR AN INJUNCTION. 481 
 
 ment which had been rendered on one of his bonds in favor of an 
 assignee thereof, on the ground of a defect in the title, it was held 
 that, though the title was decreed to him in his suit, he was entitled 
 to set up in equity offsets which he held against his vendor prior 
 to the sale, and he was not bound to plead them at law, especially 
 as one of the offsets arose out of the contract of sale, and another 
 was only an equitable offset at the time of the assignment.' A 
 deficiency in the quantity of the land sold will entitle the pur- 
 chaser to an injunction to restrain the collection of the money, and 
 to a deduction therefrom of the value of the deficiency.^ 
 
 iBagsdale v. Hagy et als, 9 Grat. 422. But see Code, J 3299; Code W. Va., 
 Ch. 126, ^ 5, and Ante, J 10. For the rales as to abatement in the purchase money 
 for land because of defect in title or lack of acreage, see 1 Barton's Law Pr. 
 522 to 524, and cases cited in the notes. See also Farrier v. EejTiolds, 88 Va. 141 ; 
 Grayson v. Buchanan, 88 Va. 251; Morgan's Adm'r ti. Brest, 34 W. Va. 232; 
 Board v. Wilson, 34 W. Va. 609. The general rule as given in Farrier v. 'Rey- 
 nolds, 88 Va. 141, in the syllabus, is: (1) "Purchaser is entitled to abatement for 
 deficiency when sale is expressly by acre, or where both parties in fixing price had 
 regard to supposed quantity. (2) Where number of acres is given with words 
 'by estimation' or 'more or less' added; small deficiency or excess will not be 
 considered. ( 3 ) Where sale is fully understood to be of 'a tract of land as it may 
 contain more or less,' purchaser takes hazard of gain or loss by excess or deficiency. 
 ( 4) Hazard contracts have ever been discountenanced by the law, though it is not 
 readily presumed that parties intended such. Whether sales are by acre, or in 
 gross, depends on intention, and parol evidence of that is admissible. ( 5 ) When 
 price is the equi-multiple of the supposed number of acres, sale is presumed to be 
 by the acre. If not, not." 
 
 ' Triplett v. Allen, &c., 26 Grat, 721; Clarke v. Hardgrove, 7 Grat. 399; Key- 
 ton's Adm'r v. Bradford's Ex' or, &c., 5 Leigh, 39. For the general rules prevail- 
 ing in the States on this subject, see High on Injunctions, § 278 to 308, from which 
 it will be observed that they differ in many respects from the rules in Virginia as 
 we have been considering them. As to the right of a vendee to pay ofl' an incum- 
 brance out of the purchase money, see Light v. Short, 3 Pen. & Watt. 447; 24 Am. 
 Dec. 334, notes, pp. 338, 339; Price v. Browning, 4 Grat. 68. Vendee in posses- 
 had stopped with the averment that the plaintiff's agent represented that plaintiff 
 had actually secured the locating and building of certain mills, it is not clear that 
 it would not have been obnoxious to the objection that it stated an opinion and not 
 an existing fact, as it is obvious that it was not the purpose of the pleader to allege 
 the existence of the mills, but that they would be built in the future." 
 
 See also upon this general subject the case of Beckley v. Biverside L. Co., Va. ; 
 23 S. E. R. 778. 
 
 31 
 
482 INJUNCTIONS. § 135 
 
 It is laid down as a general rule that there exists no such cloud 
 upon the title as justifies the interposition of a court of equity 
 when the proceedings are void upon their face.' 
 
 VIII. In Cases of Municipal Corporations. — In the matter of 
 the assessment and collection of taxes, the courts hesitate less to 
 interfere by injunction or mandamus against municipal corpora- 
 tions, than they do when the tax is levied by the State or collected 
 by its officers. Under proper circumstances they will of course 
 interpose to protect individuals from the unlawful legislation of 
 either municipal or political bodies, but higher regard is had to 
 the acts of the latter than is paid to mere municipalities.^ 
 
 sion may resist collection of the purchase money without surrendering possession 
 if vendor is unable to make title according to agreement. Gans v. Eenshaw, 2 
 Penn. 34; 44 Am. Dec. 152; note, 156. See Cullom v. Branch Bank, 4 Ala. 21; 
 37 Am. Dec. 725. As to purchaser's right to deduct for incumbrances, see Wol- 
 bert V. Liicas, 10 Penn. 73; 49 Am. Dec. 578; note, 579 to 582. But where the 
 purchaser assumes the mortgage, see Trotter v. Hughes, 12 N. Y. 74; 62 Am. Dec. 
 137; note, 141. Conveyance subject to deed of trust, but without words imputing 
 that the vendee assumes payment of the note, does not subject him to liabilty to pay 
 it. Shepherd v. May, 115 U. S. E. 505. For ground upon which purchaser of 
 mortgaged premises subject to mortgage, and assuming payment as part of price, 
 becomes personally liable to the creditor, see Osborne v. Cabell, 77 Va. 462; Fran- 
 cisco V. Suelton, 85 Va. 779. Equity will enjoin collection of purchase money on 
 ground of defect of title without waiting for motion. Kinport v. Rawson, 29 W. 
 Va. 48. See also Butcher v. Peterson, 26 W. Va. 447; Cuny ti. Hale, 15 W. Va. 
 867. Equity will decree repayment of purchase money where, through fraud or 
 mistake, the tract contains less land than it was sold for. Boschen v. Jurgens, 92 
 Va. 756. 
 
 ' Plannewinlde v. Georgetown, 15 Wall. 547; Dows v. The City of Chicago, 11 
 Wall. 109. See also Kuhn, Netter & Co. -. Mack &. Bros., 4 W. Va. 186. 
 
 ^Antonit). Wright, Sheriff, &c., 22 Grat. 833; Tyler, Sergeant, v. Taylor, Au- 
 ditor, &c., 29 Grat. 765; Murray ti. Charleston, 96 TJ. S. 432; Washington Avenue, 
 69 Penn. St. 352; 8 Am. R. 255. For the extent to which the collection of taxes 
 will be enjoined, see the note to Lewis v. Spencer, 7 W. Va. 689; 23 Am. R. 619. 
 The well settled general principle being that equity will not enjoin the collection 
 of an illegal tax, in the absence of special circumstances, as for example to prevent 
 multiplicity of suits, or irreparable injury, or cloud upon the title. Douglass v. 
 The Town of Hainsville, 9 W. Va. 162; City of Delphin v. Bowen, 61 Ind. 29; 
 Youngblood v. Sexton, 32 Mich. 406; 20 Am. E. 654; Boughner v. The Town of 
 aarksburg et al, 15 W. Va. 394; Crim v. Town of Philippi, 38 W. Va. 122; Ty- 
 gart's Valley Bank v. Philippi, 38 W. Va. 219; Corrothers v. Board of Education, 
 16 W. Va. 527; C. & O. R. R. Co. o. Miller, 19 W. Va. 408; Christie v. Maiden, 
 
§ 135 THE GROUNDS FOE AN INJUNCTION. 483 
 
 Thus the courts will interfere to enjoin a city assessment made 
 without authority of law, even where no question as to a cloud 
 upon the title has been raised ; to prevent an unauthorized or un- 
 constitutional subscription to the stock of a railroad company ; to 
 prevent a sale for taxes when the city has not complied with the 
 requirements of a statute ; to prevent an unauthorized appropria- 
 tion of the funds of a city, as for the celebration of the fourth of 
 July ; to prevent the issuing of bonds for a purpose unauthorized 
 by law ; ' to prevent the taking of private property without due 
 compensation ; ^ or to prevent the improper use of corporate prop- 
 erty, such as the use of a school-house for religious purposes against 
 the wishes of any tax-payer.' But the courts will not sit in re- 
 view of the proceedings of subordinate political or municipal tri- 
 bunals, and where matters are left to the discretion of such bodies, 
 the exercise of that discretion in good faith is conclusive, and will 
 not, in the absence of fraud, be disturbed.^ The rule applies to 
 all executive officers, and the courts will not interpose by injunc- 
 tion or mandamus with the exercise by them of duties requiring 
 judgment or discretion.^ 
 
 It is also true, upon the general principles which govern courts 
 
 23 W. Va. 667. Injunction will not lie to prevent sale of personal property of a 
 third person levied on for taxes when the property is not of peculiar value and it 
 does not appear that great injury will result consequentially. White v. Stender, 
 
 24 W. Va. 615; see note, p. 287, 49 Am. E. But it is well settled that tax-payers 
 may resort to equity to restrain municipal corporations from transcending their 
 powers of taxation. Koper v. McWhorter, 77 Va. 214; Lynchburg, &c. Ey. Co. 
 V. Dameron, 95 ya. 545. The rule, however, is that the owner of the taxed prop- 
 erty must first pay or tender so much as is justly due. National Bank t;. Kimball, 
 103 U. S. E. 732. Injunction lies where the property or person is erroneously 
 taxed. Seely v. Westport, 47 Conn. 294; 36 Am. E. 70. Injunction was sustained 
 against an unlawful dog tax. Williams v. County Court, 26 W. Va. 488. See note 
 to this case, p. 110 to 113, 53 Am. E. This subject is also fully discussed "and 
 the cases collected in Vol. 10, Am. & Eng. Encyc. of Law, p. 857 el seq. and notes. 
 
 1 High on Injunctions, U 369, 370, 373, 474. 
 
 'Yates V. Milwaukee, 10 Wall. 497; M. C. S. M. Co. v. Mason, 23 W. Va. 211. 
 ^ High on Injunctions, | 792. 
 
 *Il>id., § 785; English v. Smock, 34 Ind. 115: 7 Am. E. 215; Audenreid v. P. 
 & E. E. E. Co., 68 Penn. St. 370; 8 Am. E. 195. 
 6 Gaines v. Thomas, 7 Wall. 347; Lichfield v. The Eegister, &c., 9 Wall. 575. 
 
484 INJUNCTIONS. § 136 
 
 of equity, that they will not grant injunctions against municipal 
 corporations when there is an adequate remedy at law ; as where by 
 the proceedings of the corporate authorities in making assessments 
 a remedy is provided for all persons aggrieved, and the proceedings 
 may be removed by certiorari to the proper tribunal.^ 
 
 Upon these principles courts of equity have refused to interfere 
 to prevent a corporation from entering into a contract within the 
 scope of its authority where no fraud or corruption was alleged ; 
 to prevent the the passage of a resolution, or the adoption of ordi- 
 nances by the common council,^ although after their adoption it 
 may prevent their enforcement; to enforce by injunction the by-laws 
 or ordinances of a municipal corporation restraining a certain act, 
 unless the act is shown to be a nuisance per se ; to prevent the 
 opening of streets where the requirements of the law have been 
 complied with ; ^ to prevent the laying of tracks through a street 
 by a railway company when permission has been granted for that 
 purpose, and the city has by its charter exclusive control over the 
 streets ; and to prevent the removal of a market^house.^ 
 
 IX. In Cases of other Corporations. — Corporations engaged in 
 
 ' High on Injunctions, ? 371. See also Va. and Tenn. R. E. Co. v. Washington 
 Co., 30 Grat. 471. A national bank may, on behalf of its stockholders, enjoin the 
 collection of taxes unlawfully assessed upon shares of stock by State authorities. 
 Hills V. Exchange Bank, 105 U. S. B. 319. 
 
 ' Harrison v. New Orleans, 83 La. Ann. 222; 39 Am. E. 272. 
 
 ' But contra when they have not been complied with, although this fact has to be 
 shown by extrinsic evidence. Miller v. Mayor, &c., 47 Ala. 163; 11 Am. E. 768. 
 The fact that the change of the grade of a public street would naturally cause some 
 of the soU of the plaintiff's adjoining inclosure to cave into the street, and some 
 of the soil of the street to be accumulated on the enclosure, which result could only 
 be prevented by the erection of a wall which the corporation declined to build, has 
 been held not to involve the taking of the plaintiflf's property, but to be an injury 
 which is covered by the original taking, and hence not to justify an injunction. 
 Fellows V. City of New Haven, 44 Conn. 240. The modern authorities sustaining 
 this view are collected and classified on pp. 457 to 462 of 26 Am. E. For a dis- 
 cussion of the question of eminent domain, and -how far private property may be 
 taken for uses which are of a public nature, see Beckman v. S. & S. E. E. Co., 3 
 Paige, 45, and the notes on pp. 686 to 707, 22 Am. Dec. 
 
 *High on Injunctions, I 783 to § 795; City of New Haven v. Sargent, 9 Am. 
 E. 360. 
 
§ 135 . THE GROUNDS FOE AN INJUNCTION. 485 
 
 works of internal improvement are exempt from liability to in- 
 junctions by express statute/ unless it be manifest that they, their 
 officers, agents or servants are transcending their authority, and 
 that the interposition of the court is necessary to prevent injury 
 that cannot be adequately compensated in damages ; and it has 
 been held, in construing the statute, that a concurrence of both 
 grounds is necessary to justify the restraining order.^ 
 
 So reluctant indeed are the courts to interfere with the private 
 affairs and management of corporations, that even where the cir- 
 cumstances of the case justify the appointment of a receiver they 
 will decline to enjoin the officers and directors from acting as such, 
 unless such an order is necessary to accomplish the object of the 
 principal order.' 
 
 Special caution is observed by courts of equity in granting in- 
 junctions where the effect would be to interfere with or suspend 
 the operation of important public works which are being con- 
 structed or carried on by corporations, and the jurisdiction in such 
 cases will only be exercised for the prevention of irreparable mis- 
 chief, or where the injury complained of is so great, and the risk 
 so imminent, that no prudent man would think of incurring it.* 
 
 Corporations will, however, be restrained from doing an injury 
 to private property under the pretext of improving its works ; ^ 
 from committing a breach of trust by applying its funds to other 
 than corporate purposes;* for the protection of the rights of 
 shareholders against the improper or illegal action of other share- 
 holders, or of the officers of the company, such as misapplying its 
 
 1 ? 1081; Code W. Va., Ch. 42, ? 20. 
 
 ^ Tuckahoe Canal Co. v. The Tuckahoe E. E. Co., 11 Leigh, 42; James E. and 
 Kan. Co. -o. Anderson et al, 12 Leigh, 308. 
 ' Stevens et al v. Davison, 18 Grat. 819. 
 
 * High on Injunctions, ? 762; Daniel's Chy. Pr., Vol. 2, p. 1650 and note; Eed- 
 field on Eailways, Vol. 2, p. 385. As to the rules controlling the payment of 
 damages by works of internal improvement in West Virginia, see Mason v. Harper's 
 Ferry Bridge Co., 20 W. Va. 223. 
 
 * High on Injunctions, § 764. 
 
 « Jiid, ? 761; Evan v. Avon, 29 Beav. 144. 
 
486 INJUNCTIONS. § 135 
 
 funds or the corporate property, or engaging in an enterprise not 
 contemplated by the charter ; ' and to prevent the illegal voting 
 of stock.^ 
 
 X. To Restrain the Use of a Franchise. — The remedy by in- 
 jmiction to restrain the improper or unlawful exercise or infringe- 
 ment of a franchise is based upon the same grounds that govern 
 other applications for injunctions — that is, where the applicant hafe 
 been guilty of no negligence^ where there is an actual injury,* and 
 where the remedy at law is insufficient. In this latter respect, 
 while the rule is generally such as governs in cases of nuisances,' 
 yet each case is controlled by its own circumstances, and must 
 stand on its own merits. The distinctions are sometimes fine, for 
 it has been held, that while the unauthorized extension by a rail- 
 way company of its track will be restrained by injunction, yet 
 where a road has been properly discontinued, the forcible reopen- 
 ing thereof, and removal of fences necessary for that purpose, is 
 regarded as a mere trespass, and will not justify interference by a 
 court of equity.^ 
 
 The proceeding by injunction, where the franchise is in its 
 nature exclusive,' is frequently applied for the protection of its 
 exclusive use, upon the grounds of the inadequacy of the legal 
 remedies, and the probability of thus avoiding a multiplicity of 
 suits. This is the proper remedy where the owaer of the fran- 
 chise is in actual possession, and his title or right is not disputed.' 
 
 Although the remedy is generally applied to circumstances such 
 
 > High on Injunctions, ? 767 to I 769. 
 
 2 Ihid.; Bead v. Jones, 6 "Wis. 680. 
 
 ^ High on Injunctions, ?§ 574, 578, 585. 
 
 *High on Injunctions, \l 579, 581. 
 
 ' High on Injunctions, I 572. 
 
 'High on Injunctions, §J 410, 413. 
 
 'High on Injunctions, H 586, 587. See also Sommerville v. Wimbish, 7 Grat. 
 205; Trent u. Cartefsville Bridge Co., 11 Leigh, 521; Jones v. Keith, 37 Texas, 
 399; 14 Am. K. 382. See also Horsley v. E. & A. E. E. Co., Va. Law Journal, 
 1882, p. 245. As to a ferry franchise, see Smith v. Harkins, 3 Iredell's Chf. 613; 
 44 Am. Dec. 83. 
 
 * High on Injunctions, § 570. 
 
§ 135 THE GROUNDS FOB AN INJUNCTION. 487 
 
 as would justify the court in enjoining a nuisance, yet the relief is . 
 also granted where the injury to the franchise is purely a trespass, 
 if the legal remedy is inadequate. Hence, the destruction of toll 
 gates and toll bridges, and preventing the collection of tolls, 
 although a trespass, is such an one as cannot be adequately com- 
 pensated in damages in an action at law, and it will therefore be 
 enjoined in equity.' 
 
 XI. In Cases of Sureties. — The defence by a surety that the 
 creditor has given time for payment to the principal debtor, and 
 the discharge of the surety by reason of that fact ; the failure of 
 the creditor to enforce the collection of collateral securities placed 
 in his hands by the principal debtor ; his levying an execution 
 upon the goods of the principal debtor, and then withdrawing it ; 
 his failure to sue the principal debtor after being notified in writ- 
 ing to do so, as is sometimes provided by statute,^ and other such 
 defences may, as a general rule, be wholly or partially set up by 
 pleas at law.^ When the defence can be fully made at law, there 
 
 ' High on lujunctions, § 577. 
 
 ' U 2887, 2890, 2891; Code W. Va., Ch. 101, §§ 1, 2. See also 1 Barton's Law 
 Pr., p. 1079 et seq., and cases cited in the notes; Bank v. Parsons, 42 W. Va. 151; 
 Polling V. Maddux, 41 W. Va. 786. 
 
 " Eobinson's Practice, Vol. 5, p. 771; Ibid., p. 769 to 807. Whether the defence 
 be at law or in equity, the principles upon which the act of the creditor operates a 
 release to the surety are generally the same. Robinson' s Practice, Vol. 5, p. 769 
 to 781. As to giving time by the creditor to the principal debtor, the rule is that 
 to release the surety the time must be given by virtue of a positive contract between 
 the creditor and the principal — not that the creditor is merely inactive; the reason 
 for the rule being that by such a contract the creditor has put it out of the power 
 of the surety to have the same remedy against the principal that he had under the 
 original contract. Eobinson's Practice, Vol. 5, 769. The rule goes to the extent 
 of declaring that the creditor has no right to give time to the principal, even though 
 manifestly for the benefit of the surety, without the consent of the surety; and 
 where one of the sureties is discharged by the creditor, the other sm'ety " is entitled 
 to say to the creditor asserting a claim against him. You have discharged a surety 
 from whom I might have compelled contribution, either in my own name in equity 
 or using your name at law." Ibid. 770; State Savings Bank v. Baker, 93 Va. 
 510. Provided the contract gives time, it does not matter whether the time be long 
 or short, nor whether the surety sustain actual damage or not, nor whether the 
 agreement is or is not carried into effect; but the contract must not be a nudum pac- 
 tum — it must be a contract based upon a consideration. Ibid. 785; Bacon's Adm'r 
 
488 INJUNCTIONS. § 135 
 
 is no ground or necessity for an injunction ; and the rules govern- 
 ing an application therefor, either to an anticipated or a pending 
 suit, or against a judgment already rendered, unless the ground of 
 
 V. Bacon's Trustee, 94 Va. 686; Croughton v. Duval, 3 CaU. 60; King v. Baldwin, 
 2 Johns. E. 557; HUl v. Bull, Gilm. 149; Kathbum v. Warren, 10 Johns. E. 587; 
 Henry v. Stone, 2 Band. 464; Harnsbarger d. Geiger, 3 Grat. 144; Shannon v. Mc- 
 Mullin, 25 Grat. 211; McKenzie v. Ward, 58 N. Y. 541; 17 Am. K. 281; Shields 
 & Mahan v. Reynolds, 9 W. Va. 483; Oberndorf v. Union Bank, 31 Md. 126 ; 1 
 Am. E. 31; L. Cas. in Eq., Pt. 2, Vol. 2, p. 1867 to 1921; Stephenson v. Tav- 
 emers, 9 Grat. 398; 2 American Leading Cases, 412, 417, 5th ed. Where a grantee 
 undertook to pay off a mortgage on the granted premises, an extension of time by 
 the mortgagee for the payment of the mortgage released the grantor from personal 
 liability. Calvo v. Davies, 73 N. Y. 211; 29 Am.E. 130; Fiske v. Tolman, 124 
 Mass. 254; 26 Am. E. and note, p. 660. 
 
 A change of the contract as to the place or manner of performance has the same 
 effect. L. Cas. in Eq., Vol. 2, Pt. 2, p. 1907. 
 
 No mere negligence or indulgence by the creditor will discharge the sm-ety. 
 Bennett v. Maule's Adm'x, Gilm. 311; Eenick v. Ludington et al, 14 W. Va. 367; 
 Hoye V. Penn, 1 Bland. 28; Caston v. Dunlap, 23 Am. Dec. 197, note. Nor will 
 a conditional agreement. Norris v. Crummey et als, 2 Band. 323; L. Cas. in Eq., 
 Vol. 2, Pt. 2, p. 1910. An agreement for time upon an usurious or illegal con- 
 sideration will not release the surety {Ibid., 1912) unless,"" as has sometimes been 
 held, the consideration has been paid. Stillwell v. Aaron, 69 Mo. 539; 33 Am. R. 
 517; 2 Am. L. Cas. 470, 5th ed. Held not released when the usurious agreement 
 has been executed (Howell v. Sevier, 1 Lea. 360; 27 Am. E. 771); nor where the 
 agreement was with the knowledge and assent of the surety. Hunter" s Adm' r v. 
 Jett, 4 Eand. 104; Howell v. Sevier, 1 Lea. 300; 27 Am. E. 771; Oberndorf v. 
 V. Bank of Balto. , 31 Md. 126. The taking of a bill or note as collateral security 
 does not discharge the surety. L. Cas. in Eq. 1915. But taking a negotiable note 
 for the debt releases the surety, unless the creditor proves that it was agreed that 
 it should not entitle the debtor to forbearance. Callaway's Ex' or v. Price's Adm'r 
 et als, 32 Grat. 1. The rule is different when the note is not negotiable; and even 
 where a note payable at a future day was taken for the amount found due by a bond 
 on settlement, the surety on the bond was not released. Lindeman v. Eosenfield, 
 67 Ind. 246; 33 Am. E. 79; note, p. 85. An extension of time, which does not 
 affect the rights, remedies and obligations of the parties, does not release the surety. 
 Adams et al v. Logan et als, 27 Grat. 206; Coffinan et als v. Moore's Ex'ors, 29 
 Grat. 249. Hence an agreement to postpone a sale under a deed of trust did not 
 operate a release. Ibid. An extension of time by a parol agreement does not dis- 
 charge the surety. Berry v. PuUen, 69 Me. 101 ; 31 Am. R. 248. Eefusal to re- 
 ceive money tendered, although the debtor afterwards became insolvent, is not a 
 discharge. Ciaik v. Sickler, 64 N. Y. 231; 21 Am. E. 606. Contra, Johnson v. 
 Mills, 10 Cushing, 503. Acceptance of additional security does not discharge 
 surety. Brengle v. Beesley, 40 Md. 586. 
 
 A release by the principal of any securities that he holds for his debt, releases 
 
§ 135 THE GROUNDS FOE AN INJUNCTION. 489 
 
 defence arise since the judgment, are fixed by the same general 
 principles.' But it may often happen, nevertheless, that the de- 
 fence is purely an equitable one, and such as can be set up by injunc- 
 
 1 See Ante, ? 5 to ? 11- 
 
 the surety, at least to the extent of the loss he thereby sustains. Coffinan ei ah v. 
 Moore's Ex'ors, 29 Grat. 248; Ward v. Johnson, 6 Munf. 6; McKinney's Ex'ors 
 u. Waller, 1 Leigh, 434; Alcock v. Hill, 4 Leigh, 622; Humphrey v. Hitt, 6 Grat. 
 523; Hansberger, Adm'r, v. Kinney, 13 Grat. 511; Shannon v. McMuUin, 25 Grat. 
 211; Harrison's Ex' or el ah v. Price's Ex'oretate, Ihid. 553; McMahon, &c. v. 
 Fawcett, &c., 2 Band. 530; Smith v. Tunno, &o., 1 McCord Chy. E. 443; Chees- 
 borough, &c. v. Millard, &c., 1 Johns. Chy. E. 409; Cassell v. Butler, 2 Sim. & 
 Stu. 457; 1 Cond. Eng. Chy. E. 543; Loop v. Summers, 3 Band. 511; Ashb/s 
 Adm'x V. Smith's Ex'x, 9 Leigh, 164; Atlanta Nat. Bank v. Douglass, 51 Ga. 205, 
 21 Am. B. 234; L. Cas. in Eq., Vol. 2, Pt. 2, p. 1901. A failure to prove a debt 
 in bankruptcy does not discharge the surety. Ibid. 1904. Laches which injure 
 the security held will discharge pro tanto. Ward v. Vass, 7 Leigh, 135; L. Cas. 
 in Eq., Vol. 2, Pt. 2, p. 1902; but see Bichardson v. Ins. Co. of Valley of Va. 27 
 Grat. 749. 
 
 A mere postponement of the sale under an execution, without binding himself 
 to suspend the proceedings for any definite time, does not release the surety. Mc- 
 Kenny' s Ex' ors v. Waller, 1 Leigh, 434. Nor a countermand of an execution be- 
 fore it is levied. Humphry v. Hitt, 6 Grat. 509. But this was before the execu- 
 tion became a lien upon all the debtor's property from the time it goes into the 
 sheriff's hands. See, however, on this subject, L. Cas. in Eq. Pt. 2, Vol. 2, p. 
 1902. A failure to isSue execution will not release. Ibid. 1900. These princi- 
 ples apply to official bonds, but a law extending the time for the collection of taxes 
 or settlement by the officer does not release the surety. Commonwealth by, &c. v. 
 Holmes, 25 Grat. 771; U. S. v. Kirkpatrick, 9 Wheat. 720; U. S. v. Vanzandt, 11 
 Ibid. 184; U. S. v. NichoU, 12 Ibid. 509; U. S. v. Boyd et als, 15 Peters, 187; 
 State V. Carleton, &c., 1 Gill E. 249; L. Cas. in Eq., Vol. 2, Pt. 2, p. 1913. The 
 rules apply to judgments. Ibid. 1915; Barnes v. Mott, 64 N. Y. 397; 21 Am. E. 
 625. Independent of statutory provisions to that effect, a notice to the creditor to 
 sue, and his failure to do so, does not discharge the surety. L. Cas. in Eq. , Vol. 
 2, Pt. 2, p. 1905; Eobinson's Pr., Vol. 5, p. 781. Where one of several sureties 
 notified the creditor to sue and he faUed to do so, this was held not to discharge the 
 co-sureties who gave no notice. Wilson v. Tebbetts, 29 Ark. 579; 21 Am. E. 165. 
 It is held, however, that a creditor does not discharge the surety by assenting to a 
 discharge in bankruptcy, or to a resolution either for winding up through trustees 
 or for the acceptance of a composition proposed by the debtor. Browne v. Carr, 
 2 Buss. 600; Migrate v. Gray, L. E. 9 C. P. 216; Ellis v. Wilmot, L. B. 10, 
 Exch. 10; Simpson v. Henning, L. E. 10, Q. B. 406; Ex parte Jacobs, L. E. 10, 
 Ch. 211, overrulmg Wilson v. Floyd, L. B. 16, Eq. 60; Guild v. Bntler, 122 Mass. 
 498; 23 Am. E. 380. For the statute of Virginia as to compounding with co- 
 obligors, see Code, §§ 2856, 2858; 1 Barton's Law Pr., p. 148. Mere forbearance 
 
490 INJUNCTIONS. § 135 
 
 tion alone ; ^ and in Virginia, upon a sealed instrument, unless the 
 modern statute'' gives the relief at law, the only relief to the surety 
 is in equity.' 
 
 Where a surety seeks to enjoin a co-surety from proceeding at 
 law for contribution, it has been held that he is not entitled to the 
 injunction, unless he tenders the amount due the co-surety who 
 has paid the debt, or alleges his readiness to pay ; ^ and the rules 
 of equity require the same tender where either the principal debtor 
 or the surety is setting up a partial defence against a claim due to 
 a creditor." 
 
 ' Story's Eq. Jurisprudence, Vol. 2, § 883-904; Brengle v. Bushey, 40 Md. 141; 
 17 Am. E. 586. 
 
 ^ Code, ?S 3299, 3300. 
 
 ^Steptoe's Adm'rv. Harvey's Ex'ors, 7 Leigh, 524, 532, 534; Devers jj. Boss, 
 10 Grat. 252. 
 
 *High on Injunctions, ? 172; Craig and Angle v. Aukeney, 4 Gill. 225. 
 
 ' Where the plea is that the debt was for a gambling or usurious transaction, see 
 Post, I 168, 169. For the case of an injunction by a surety to restrain a co-surety 
 from frauduently disposing of his property, see Bowen v. Hoskin's Adm'r, 45 Miss. 
 183; 7 Am. R. 728. Chancery will entertain suit by surety to reach credits of 
 principal and apply them to the payment of a judgment attained against them 
 jointly when the principal is insolvent, although the surety has not paid the judg- 
 ment. McConnell v. Scott et ai, 15 Ohio, 401; 45 Am. Dec. 583; note, 584. For 
 the rules as to a surety" s right to contribution from his co-surety for costs and ex- 
 penses in defending suits, see Fletcher v. Jackson, 23 Vt. 581; 56 Am. Dec. 98; 
 note, p. 107. 
 
 without consideration does not release. Wells et ah v. Hughes, 89 Va. 543. See 
 also numerous cases collected, in addition to those stated in the foregoing note, on 
 p. 1081, 1 Barton] s Law Practice. In Vol. 24, Am. & Eng. Encyc. of Law., p. 822 
 et seq. and notes, the decided cases are collected and classified. Creditor* s agree- 
 ment to accept a certain percentage within a specified time in full satisfaction, but 
 containing no agreement to delay or extend, and contract not complied with, does 
 not release the surety. Miller <•. Hatcher, 72 Me. 481; 39 Am. E. 346. Mere 
 forbearace to enforce execution does not release (Blandford's Adm'r v. Barger, 9 
 Dana, 22; 33 Am. Dee. 519) unless a levy is prevented by the interference of the 
 creditor. Id. But any positive and wilful interference by a creditor, embarrassing 
 the recovery of the claim against the principal, will release the surety. Bank of 
 Manchester i'. Bartlett, 13 Vt. 315; 37 Am. Deo, 594; note, p. 595. A surety fully 
 indemnified by the principal debtor is not released by an extension of time given 
 the latter. Chilton v. Bobbins, 4 Ala. 223; 37 Am. Dec. 741. The release of a 
 judgment lien on one of several tracts of land does not operate as a release of the 
 other tracts. Blakemore v. Wise, Va. ; 28 S. E. E. 332. 
 
I 135 THE ©HOUNDS FOB AN INJUNCTION. 491 
 
 XII. In Cases of Partners. — The reasons that forbid the inter- 
 ference of courts between married persons are regarded as having 
 some application to partnerships, hence it is held that where failure 
 or infirmity of temper, disputes which, however vexatious, are not 
 positively injurious, or other similar troublesome but tolerable 
 grievances, will not induce courts of equity to grant injunctions. 
 The fact that this mode of proceeding will not be efficacious, will 
 inflict extreme inconvenience, or that there has been merely a 
 single breach of the covenant unaccompanied by other proper rea- 
 sons, will be enough to persuade the court to refuse the injunction.* 
 
 On the other hand, injunctions are granted to restrain a partner 
 from making an improper use of the partnership property, credit, 
 or name ; ^ in cases of gross misconduct or abuse of authority, gross 
 want of gpod faith or diligence, habitual intoxication, gross ex- 
 travagance or negligence, and rash and reckless speculation in the 
 conduct of the business of the partnership.^ 
 
 A clear case must, however, be made out to justify the interfer- 
 ence of a court of equity, and to entitle the complainant to its aid 
 it has been generally held that the bill must contain a prayer for 
 the dissolution of the partnership, or must state such facts to exist 
 as in themselves amount to a dissolution. There are exceptions, 
 however, to this general rule,^ and it is held not to apply to bills 
 to prevent the partners, during the continuance of the partnership, 
 from doing any acts injurious thereto, such as signing or endorsing 
 notes, driving away customers, or one partner violating the rights 
 of the other partners or his duty to them.' 
 
 When the partnership relations are founded upon or arise out 
 of gambling transactions, or any immoral or unlawful pursuits, 
 whether for profits, losses, expenses, contributions, or reimburse- 
 
 1 Parsons on Partnership, 330, 331; Story on Partnership, U 225, 226, 227. 
 ' Parsons on Partnership, 333. 
 ' Story on Partnership, § 288. 
 
 * Goodman v. Whitcomb, 1 Jac. & W. 592; Parsons on Partnership, p. 331, note; 
 Marble Co. v. Ripley, 10 Wall. 339. . 
 'Story's Eq. Jurisprudence, ? 669; Marble Co. v. Eipley, 10 Wall. 339. 
 
492 INJUNCTIONS. § 136 
 
 ments, a court of equity will not lend its aid, or give relief to 
 either party against the other.' 
 
 The Effect of an Injunction. 
 
 § 136. An injunction to a judgment may put an end to the lien 
 of an execution thereon which is given by statute/ and if money 
 has been received under the execution by an officer, and has not 
 been paid over, he is compelled by the statute to repay it to the 
 debtor, unless the injunction order direct otherwise ; ^ but for the 
 time during which the injunction exists, the statute limiting the 
 right to sue out an execution or scire facias is suspended ; * and the 
 same may be said of the exercise of any right which is suspended 
 by an injunction." 
 
 The pendency of an injunction which inhibits the sale of prop- 
 erty by trustees is not a bar to their bringing an action at law to 
 recover the trust-property, and that fact will not mitigate the dam- 
 ages which they are entitled to recover by reason of its detention.'' 
 The injunction order should always define the exact extent of its 
 operations. It may be qualified by considerations which the plain- 
 tiff is bound to perform in order to be entitled to its benefits ; or 
 it may permit the transactions sought to be enjoined to be carried 
 on under fixed conditions, as to indemnity, security, etc' The 
 
 ^ Watson V. Fletcher, 7 Grat. 13; Griswold v. Waddington, 16 Johns. R. 438, 
 486, 489; Mitchell v. Cockbum, 2 H. Bl. 379; Knowles ». Houghton, 11 Ves. 168. 
 
 ^ U 3601, 3602; Code W. Va., Ch. 141, H 1, 2. 
 
 ' I 3595. See Code W. Va., Ch. 141, I 16. 
 
 * U 3577, 3578; Code W. Va., Ch. 139, U 10, 11; Richardson's Adm'r v. Prince 
 George Justices, &o., 11 Grat. 190. 
 
 'Braxton, Adm'r, &c. v. Harrison's Ex'ors, 11 Grat. 30; Hutsonpiller' s Adm'r 
 v. Stover's Adm'r, 12 Grat. ,579. It is declared to be a settled rule in England and 
 America that an injunction is binding upon a defendant who knows of its contents 
 and of its having been granted, although no writ has been actuallj"- served on him. 
 See Farnsworth v. Fowler, 1 Swan. 1; 55 Am. Dec. 718; note, p. 722. See also 
 Vol. 10, Am. & Eng. Encyc. of Law, p. 1011, and notes; Osborne v. Glasscock, 
 39 W. Va. 749. 
 
 « Nichols V. Campbell, 10 Grat. 560. 
 
 ' Eoss V. Pleasants, &c., 1 H. & M. 1; Harrison t. Morton, 4 H. &M. 483. One 
 of the conditions may be that the complainant make other persons parties, or revive 
 
§ 137 EVIDENCE ON AN INJUNCTION PROCEEDING. 493 
 
 violation of its terms, too, may be punished either by a dissolu- 
 tion of the injunction, or by fine or imprisonment, or by all of 
 these methods ; ^ and where the injunction is granted by a judge 
 of the court of appeals, the circuit judge will take as effectual 
 measures to prevent its violation as if the circuit court itself had 
 granted the injunction.^ 
 
 The Evidence on an Injunction Proceeding. 
 
 § 137. We have already considered the effect of an answer to 
 a bill for an injunction as evidence,' and we have observed that 
 the denial of the answer may be overcome by auxiliary evidence. 
 Where the case is heard on its merits, it should of course be prose- 
 cuted and defended on depositions regularly taken ; but as it is 
 frequently impossible to obtain them in time to meet a motion to 
 dissolve, the plaintiff is allowed to file affidavits to sustain his 
 bill ; and this he may do at any time up to the hearing, subject to 
 such proper conditions as may prevent any unfair advantage being 
 taken of the other party.^ To these affidavits the defendant, in 
 addition to his answer, may file counter affidavits,^ which may be 
 read subject to the same conditions. 
 
 the suit against the representatives of dead persons. White v. Fitzhugh, &c. , 1 H. 
 & M. 1; Kenner v. Herd, 1 H. & M. 204; Jackson?). Arnold, 4 Kand. 195. The 
 conditions must be reasonable. McKays v. Hite, &c. , 2 Leigh, 145. The disso- 
 lution may also be on conditions. McMahon v. Spangler, 4 Band. 51. 
 
 1 1 3768; Code W. Va., Ch. 147, ? 27. See 1 Bart. Law Pr., p. 772; Am. & 
 Eng. Encyc. of Law, Vol. 3, p. 799, and notes; Seve v. Armitage, 9 Martin, 394; 
 13 Am. Dec. 311; High on Injunctions, Ch. 19; Minor's Institutes, Vol. 4, Pt. 1, 
 p. 798; The People v. Spaulding, 2 Paige, 326; Toll Bridge v. Free Bridge, 1 
 Kand. 206. 
 
 2 Toll Bridge v. Free Bridge, 1 Kand. 206. ' Ante, I 127, Div. 11. 
 
 • Daniel' s Chy. Pr. , Vol. 2, p. 1598. But it was considered that no cj; parte 
 affidavits may be read. The Bellona Company' s Case, 3 Bland. 445. 
 
 » Daniel's Chy. Pr., p. 1676, note; High on Injunctions, l 1005, 1006. On the 
 motion to dissolve, the defendant is considered as the actor, and on him rests the 
 burden of disproving the equities of the bill. High on Injunctions, § 88l ; Miller i'. 
 Washburn, 3 Ired. Eq. 161; Brown v. HoiF and Lyon, 5 Paige, 235; 28 Am.. Dec. 
 425. Answer setting up new matter is not sufficient of itself to support a motion 
 to dissolve. Noye v. Vickers, 39 W. Va. 30; Armstrong v. Grafton, 23 W. Va. 
 50; Kerr v. Hill, 27 Id. 576. 
 
494 INJUNCTIONS. § 138 
 
 A distinction has sometimes been made between the right to 
 read affidavits filed before, and those filed after, answer;* but 
 this distinction does not prevail in Virginia.^ 
 
 The Injunction Bond. 
 
 % 138. It is provided by statute' in Virginia, that an injunction 
 (except in case of any personal representative or other person from 
 whom, in the opinion of the court or judge awarding the same, it 
 may be improper to require bond), shall not take effect until bond 
 be given in such penalty* as the court or judge awarding it may 
 direct, with condition. to pay the judgment or decree (proceedings 
 on which are enjoined), or to pay the value of the property levied 
 on by the officer, where there has been a levy, or to have the prop- 
 erty levied on forthcoming, to abide the future order or decree of 
 the court, as to the court shall seem just and proper in the case ; 
 and all such costs as may be awarded against the party obtaining 
 the injunction, and all such damages as may be incurred, in case 
 the injunction shall be dissolved, and with a further condition, if a 
 forthcoming bond has been given under such judgment or decree, 
 to indemnify and save harmless the sureties in said forthcoming 
 bond, and their representatives, against all loss or damage in con- 
 sequence of such suretyship ; or, if the injunction be not to pro- 
 ceedings on a judgment or decree, with such condition as the said 
 
 ' High on Injunctiona, J 1010; Adams' Equity, 731 to 735, and notes. 
 
 ' As to the time at, and the circumstances under, which a motion may be made 
 to dissolve an injunction, see Post, § 139. 
 
 »? 3442; Code W. Va., Ch. 133, ? 10. The provision in the United States 
 courts is as follows: "Whenever notice is given of a motion for an injunction out 
 of a circuit or district court, the court or judge thereof may, if there appears to 
 be danger of irreparable injury from delay, grant an order restraining the act 
 sought to be enjoined until the decision upon the motion; and such order may be 
 granted with or without security, in the discretion of the court or judge." See 
 Foster' s Fed. Pr. , ? 231. See also the provision of the statute for a bond where the 
 injunction is to restram the removal of property from the State. ? 3441; Code W. 
 Va., Ch. 133, I 8. 
 
 'Usually double the amount of debt and interest. Billingslea v. Gilbert, 1 
 Bland. 566. 
 
§ 138 THE INJUNCTION BOND. 495 
 
 judge or court may prescribe. The bond shall be given before the 
 clerk of the court in which the suit is, wherein the injunction is 
 awarded. If the bond is not given before the summons is issued, 
 the clerk shall endorse thereon that the injunction is not to take 
 effect until the bond is given ; and the clerk, who afterwards takes 
 the bond, shall endorse that it is given ; provided, however, that 
 if the bond required by this statute be not given within sixty days 
 from the date at which the injunction was awarded, then the order 
 awarding such injunction shall be void. 
 
 The changes made by the act of Assembly of Virginia, ap- 
 proved January 15, 1875, were to insert in the bond the obligation 
 to pay the value of the property levied on by the officer, when 
 there has been a levy, or to have the property levied on forthcom- 
 ing, to abide the future order or decree of the court, as to the court 
 shall seem proper ; and to provide that, if the bond required by 
 this section be not given within sixty days from the date at which 
 the injunction was awarded, then the order awarding such injunc- 
 tion should be void. 
 
 The earlier statute ' requiring an injunction bond made no ex- 
 ception in any case, but it was nevertheless held that an injunction 
 might be awarded without security in cases not coming within the 
 intention of the law, as in cases of executors, administrators, or 
 other fiduciary characters, where they are not personally responsi- 
 ble ; but that the bond could not be dispensed with where a party 
 prayed an injunction in his own right to a judgment against him 
 personally ; ^ and the court of appeals further thought, that if the 
 chancellor had any discretion in such a case, it was improperly 
 exercised when there was no sufficient security for the judgment 
 sought to be enjoined. It will be observed that the present statute 
 
 1 1 E. C. 1819, p. 260, ? 75. 
 
 ' Lomax v. Picot, 2 Eand. 247. As to the form of the bond, and the effect 
 thereof in an action of debt, see Gillespie et als v. Thompson et ah, 5 Grat. 132; 
 White V. Qay's Ex' or, 7 Leigh, 68; Harman v. Howe, 27 Grat. 676; Bein al al v. 
 Heath, 12 How. 168; Oelrichs u. Spain, 15 Wall. 211; Fox v. Mountjoy, 6 Munf. 
 36. And for the form of the declaration, see 1 Barton's Law Pr., pp. 348, 354. 
 
496 INJUNCTIONS. § 139 
 
 makes an exception in the case of any personal representative or 
 other person from whom in the opinion of the court or judge 
 awarding the same, it may be improper to require a bond ;- but 
 this discretion must nevertheless be so exercised as to insure the 
 person against whom the injunction operates from loss by reason 
 of the same.' 
 
 The order for an injunction is ineffectual until the required bond 
 is executed, and until then it need not be regarded ; but the bond 
 becomes operative and the obligation thereunder attaches from the 
 time of filing it with the proper officer of the court.^ The prac- 
 tice is to serve the injimction order upon the person whose acts are 
 sought to be restrained, and without such service, unless the order 
 is made in a suit to Tvhich he is regularly a party, the injunction 
 will not be effectual. 
 
 The judge, in term or in vacation, on proper notice, may make 
 such order about the bond as may be proper.^ 
 
 Dissolution of an Injunction. 
 § 139. The statute of Virginia* provides that, after reasonable 
 
 ' For the general rule, see Daniel's Chy. Pr., Vol. 2, p. 1666; High on Injunc- 
 tions, I 946 to I 954. Courts of equity may substitute a bond of indemnity for an 
 injunction, if the ends of justice will thereby be promoted, and especially if any 
 public interest will suffer by continuing the injunction in force pending the litiga- 
 tion. Campbell v. Railroad, 23 W. Va. 448. 
 
 ^ High on Injunctions, ? 948. 
 
 ' Hutchinson v. Landcraft, 4 W. Va. 312. 
 
 * S? 3444, 3446. See also Code W. Va., Ch. 133, § 12. The provision in the 
 United States courts is as follows (Desty's Fed. Pro., 55th Eq. Eule): "Whenever 
 an injunction is asked for by the bill to stay proceedings at law, if the defendant 
 do not enter his appearance and plead, demur, or answer to the same within the 
 time prescribed by these rules, the plaintiff shall be entitled as of course, upon 
 motion without notice, to such injunction. But special injunctions shall be granted 
 only upon due notice to the other party by the court in term, or by a judge thereof 
 in vacation, after a hearing, which may be ex parte, if the adverse party does not 
 appear at the time and place ordered. In any case where an injunction, either the 
 common injunction or a special injunction, is awarded in vacation, it shall, unless 
 previously dissolved by the judge granting the same, continue imtil the next term 
 of the court, or until it is dissolved by some other order of the court." 
 
§ 139 DISSOLUTION OF AN INJUNCTION. 497 
 
 notice to the other parties,* the judge of a circuit or corporation 
 court, in which an injunction is awarded, may in vacation dissolve 
 such injunction.^ 
 
 In such cases the order for the dissolution should be directed to 
 the clerk of the court wherein the suit is pending, who is required 
 to record the same in the order-book. 
 
 When the injunction is wholly dissolved, the bill stands dis- 
 missed,' of course with costs, unless sufficient cause be shown against 
 such dismission at the next term. 
 
 Under a similar statute,* it was held ° that, after the dissolution 
 of an injunction, if the cause be set for hearing ^ on the motion of 
 the defendant, .&ud at the hearing the injunction be made perpetual, 
 it will not then be allowed the defendant to insist on the dismissal 
 of the bill under the act of assembly. But it was further held 
 that the act does not apply to a cause in which the bill has other 
 objects exclusive of those embraced by the injunction,' as, for ex- 
 ample, when the bill is for an injunction, and also to obtain a 
 decree for land in controversy ; for in any case of the kind, after 
 
 • When the injunction is against several, one of them may move to dissolve in 
 the absence of the rest; but if it is an interpleader suit, the notice of the motion 
 to dissolve should be served on all the parties. 2 Daniel's Chy. Pr., p. 1676, and 
 note. For waiver of the notice, see Amick v. Bowyer, 3 W. Va. 7; and Shields et 
 al V. McClung et alt. 6 W. Va. 79. Even if case at rules, defendant may move 
 court to dissolve in term, but in such case the opposite party, who has not appeared, 
 must have notice. Faddy v. Tomlinson, 41 W. Va. 606; 24 S. E. E. 645. 
 
 ' In West Virginia, before process. Shields et al v. McClung et ah, 6 W. Va. 79. 
 See also Livesay v. Feamster, 21 W. Va. 83. 
 
 » C. & O. K. E. Co. *. Patton, 5 W. Va. 234; Code, g 3446. Words " at the 
 next term" not in the statute of West Virginia. Code W. Va., Ch. 133, § 13. 
 
 *1 E. C, 1819, p. 208, ? 60; Sess. Acts 1830-'31, p. 56, I 42; Sup. to E. C, 
 p. 152, ? 42. 
 
 6 Franklin v. Wilkinson, 3 Munf. 112. 
 
 * But where the cause was submitted for a final hearing on bill, answer, deposi- 
 tions, etc., and upon a motion to dissolve without objection by the plaintiff or de- 
 fendant, it was held not to be error to dismiss the bill, as well as to dissolve the 
 injunction, although the cause had not been finally set for hearing. Alford v. 
 Moore's Adm'r et al, 15 W. Va. 597. 
 
 ' See Adkins «. Edwards, 83 Va. 308; Noyes el ah v. Vickers et al, 39 W. Va. 
 30; 19 S. E. E. 429. 
 
 32 
 
498 INJUNCTIONS. § 139 
 
 the dissolution of the injunction, the cause should be proceeded in 
 as an original bill.* Where it is a pure bill of injunction, although 
 the court may dissolve the injunction in vacation, it cannot then 
 dismiss the bill, but this will be done at the next term ; ^ for, as 
 when an injunction is dissolved, on the coming in of the answer 
 the plaintiff has still a right to reply to the answer, and continue 
 his case as an original suit for a hearing in chief; and if the court 
 of chancery, without his consent, dismiss the bill at the same time 
 that it dissolves the injunction, it is error, for which that part of 
 the decree will be reversed ; ' nor can costs be decreed at that time, 
 the only proper order being to dissolve the injunction.* 
 
 And where the answer denies all the grounds of equity set up in 
 the bill, and those grounds are not sustained by proof, the injunc- 
 tion must necessarily be dissolved;" but dissolution is not au- 
 thorized by mere denial on information and belief when the in- 
 junction is sustained by the allegations of the bill." It is in order, 
 however, to dissolve an injunction at any stage of the proceedings.' 
 
 The general rule with regard to the dissolution of an injunction 
 is, that when it has been properly granted, it is not to be dissolved 
 until the answers of all the defendants have come in ; * and when 
 the motion is made before answer, all the allegations of the bill 
 
 ^ Hough V. Shreeve, 4 Munf. 490; Singleton v. Lewis, &c., 6. Munf. 397; Pul- 
 liam ti. Winston, 5 Leigh, 324. 
 
 » Code, i 3446. But see Code W. Va., Ch. 133, ? 13. Mullen, &c. v. Bayley 
 el al, 21 Grat. 521. After a decree for an account the plaintiff cannot, without 
 notice to the defendant, dismiss his bill. Hall d. McPherson, 3 Bland. 529. The 
 Virginia statute (? 3446) has this provision, but it is not contained in the statute 
 of West Virginia. Code, Ch. 133, § 13.' 
 
 » Blow V. Taylor, &c., 4 H. & M. 159; Warren and Wife v. Syme, 7 W. Va. 474. 
 
 * Bamett v. Spencer, 2 H. & M. 7. A defendant who is properly enjoined from 
 collecting a debt, though not from prosecuting it to judgment, is liable for the costs 
 of the injunction proceeding. Shipman v. Fletcher's Adm'r, 95 Va. 585. 
 
 "Motley t). Frank, 87 Va. 432; Cox v. Douglass, 20 W. Va. 175; Hayzlitt v. 
 McMillan, 11 W. Va. 464. 
 
 "Attorney-General v. The Cohoes Co., 6 Paige, 133; 29 Am. Dec. 755. 
 
 ' Jones ». Bank, 5 Howard, 43; 35 Am. Dec. 419. 
 
 » Adams' Equity [196], note; Balto. & Ohio B. E. Co.^e. The City of Wheel- 
 ing, 13 Grat. 60; Jones v. MagUl, 1 Bland. 177. 
 
§ 139 DISSOLUTION OF AN INJUNC?riON. 499 
 
 must be taken as true.' The rule has, however, very many ex- 
 ceptions, as for instance, where those who have not answered are 
 mere formal parties ; where one or more of the defendants, within 
 whose knowledge the fects charged especially or exclusively lie, 
 have answered, although other defendants have not ; where the de- 
 fendant against whom the gravamen of the charge rests has fully 
 answered, and this too, when all the defendants are implicated in 
 the same charge, and the answers of all can and ought to come in, 
 but the plaintiff has not taken the requisite steps, with reasonable 
 diligence, to expedite his cause.^ 
 
 Where, upon the face of the bill, there is not suf&cient equity to 
 support the injunction, a motion may be made at once to dissolve 
 it, and this, of course, without waiting for an answer ; for if the 
 case made by the bill was not sufficient to justify the court in grant- 
 ing the injunction, that injunction ought not to4)e continued, though 
 no answer be iiled.^ This proceeding amounts to a demurrer to 
 the bill, and the injunction is ipso facto dissolved by the dismissal 
 of the bill on the allowance of the demurrer thereto ; * and where 
 the injunction has been granted contrary to the provisions of an 
 imperative statute, the defendant is entitled to summary relief, and 
 the order will be set aside for irregularity without putting him to 
 his motion to dissolve.^ 
 
 Although the dismissal of the bill would carry with it the dis- 
 solution of the injunction, the dissolution of the injunction does 
 not necessarily involve the dismissal of the bill ; but the suit may 
 be still carried on as an original suit wherever further proceedings 
 
 ' Peatross v. McLaughlin, 6 Grat. 64; Ludington v. Tiffany, 6 W. Va. 11. 
 
 ' Peatross v. McLaugHin, 6 Grat. 64; High on Injuijctions, § 909 to ? 915; Shank 
 V. Knight et al, Trustees, 12 W. Va. 667. 
 
 ' The People v. Spalding, 2 Paige, 329; Minturn v. Seymour, 4 Johns. Chy. E. 
 173; New York Printing and Dying Establishment v. Fitch, 1 Paige, 97; Daniel's 
 Chy. Pr., Vol. 2, p. 1675, note. 
 
 *Ibid. 
 
 * High on Injunctions, ? 880; Judah v. Chiles, 3 J. J. Marsh, 302; Shields et ah 
 V. McClurg et als, 6 W. Va. 79. 
 
500 INJUNCTIONS, § 139 
 
 are necessary to give relief, the injunction indeed being very fre- 
 quently auxiliary to the main suit.^ 
 
 The defendant's delay or laches in asking a dissolution of an 
 injunction may constitute sufficient ground for refusing his motion ; 
 and where there has been long acquiescence on his part, the mo- 
 tion has been denied even where the complainant had been guilty 
 of the suppression of material facts in obtaining the injunction, 
 and where the court had no jurisdiction of the case originally.^ 
 
 When a motion is made to dissolve an injunction, the court of 
 chancery ought never to continue it unless from some great neces- 
 sity, because the court is always open to grant, and of course to 
 reinstate, an injunction whenever it shall appear proper to do so.^ 
 
 The trend of recent Virginia decisions, however, is to make a 
 continuance of the motion to dissolve very much a matter of dis- 
 cretion with the coi»rts.^ 
 
 The court sometimes continues the case when it is ready neither 
 to dissolve the injunction nor to perpetuate it, as for instance, where 
 the facts and history of the case as disclosed by bill and answer 
 afford strong presimiption that the complainant will estabhsh his 
 claim for relief upon the hearing, and tKat he might in the mean- 
 time suffer irremediable injury by a dissolution.* So, when the 
 case as presented requires investigation, and to dissolve the injunc- 
 
 » Blow V. Taylor, 4 H. & M. 159; Euffners v. Barrett, 6 Munf. 207; Massie v. 
 Mann, 17 Iowa, 131; Cole v. Sands, 1 Overt. 183; High on Injunctions, § 889. 
 
 ' High on Injunctions, ? 894, J 942. 
 
 'Badford's Ex'ors v. Innes's Ex'x, 1 H. & M. 7; West's Ex' or v. Logwood, 6 
 Munf. 497; Horn v. Perry et al, 11 "W. Va. 694. On a motion to dissolve it has 
 been held that the plaintiff opens and concludes the argument. Jones v. Magill, 1 
 Bland. 177; Ingles v. Strauss, 91 Va. 209; 21 S. E. K. 495; Livesay v. Feamster, 
 21 Va. 83. 
 
 •Jenkins & Cntchin v. Waller & Jordan, 80 Va. 665; Vaught v. Rider et ah, 83 
 Va. 659; Trevdyan's Adm'r v. Loffl, 83 Va. 141. 
 
 ' The general rule rule is, that when a motion to dissolve comes on to be heard 
 upon the bill and answer, and the answer denies all the equity of the bUl, the in- 
 junction is usually dissolved; but this rule is not inflexible, for the court may, for 
 good cause shown, refuse to dissolve the injunction, and continue it to the hearing, 
 without adjudicating the principles of the cause. Kahn v. Kemgood, 80 Va. 346. 
 But see Emmons v, Pidcock, 93 Va. 146, 
 
§ 139 DISSOLUTION OF AN INJUNCTION. 501 
 
 tioD would be to place the property which is the subject of con- 
 troversy beyond the control of the court, and when there are ques- 
 tions of doubt on which additional light is requisite to satisfy the 
 court before deciding the rights of the parties. If, too, the con- 
 tinuance of the injunction, even admitting defendant's answer to 
 be true, cannot prejudice or imperil his rights, and, on the other 
 hand, its dissolution might seriously impair the rights of complain- 
 ant, the motion to dissolve, upon the coming in of the answer, 
 should not be allowed.^ 
 
 When the court refuses the motion to dissolve, then it continues 
 the injunction, although, as a general rule, the injunction can only 
 be made perpetual at the hearing of the cause ; but by consent the 
 injunction may be made perpetual on an interlocutory application.^ 
 The rule is that a decree making an injunction perpetual can only 
 be rendered upon a bill taken for confessed, upon overruling a 
 demurrer to the bill, or upon a hearing on the bill, answers, ex- 
 hibits and proofs.* 
 
 It is often, as we have seen, proper to postpone the final dispo- 
 sition of the injunction until the case is regularly set for hearing ; * 
 and when the payment of money has been enjoined, if it appears 
 that part of it has been paid pending the injunction, there ought 
 not to be a dissolution as to that part merely because of its being 
 paid pending the suit ; but notwithstanding that circumstance, the 
 injunction should be perpetuated as to all that is paid, and dis- 
 solved only as to the balance remaining due.° 
 
 Upon an injunction to a judgment at law, if the court of chan- 
 cery orders a new trial of the issue in the court in which the judg- 
 ment was obtained, it may direct the verdict to be certified into 
 the coiirt of chancery, and proceed to make a final decree in the 
 
 1 High on Injunctions, | 900 to ? 903. 
 
 » Daniel's Chy. Pr., Vol. 2, p. 1682. 
 
 'High on Injunctions, ? 935; Ottawa i;. Walker, 21 111. 610. 
 
 * See also Brakeley v. Tuttle, 3 W. Va. 86; Huchinson v. Landcraft, 4 W. Va. 312, 
 
 * Tapp V. Beverly, 1 Leigh, 80. 
 
602 INJUNCTIONS. § 139 
 
 cause ; ' and if the court of chancery, after directing a new trial 
 at law, shall become satisfied that the injunction ought to have 
 been dissolved, it may, although no verdict has been certified, set 
 aside the order for a new trial and dissolve the injunction.^ 
 
 After a judgment at law by an assignee against the obligor, if 
 the latter obtains an injunction on the ground that the money was 
 paid to the assignor before notice of the assignment, and it be 
 proved that the payment was made after notice, the injunction will 
 be dissolved and the bill dismissed as to the assignee ; but if the 
 assignor be a defendant, the obligor may have a claim against him.' 
 
 In all cases where the bill is merely for an injunction, and there 
 is but a single defendant, if there is a decree dissolving the in- 
 junction, and that decree is made not on a mere motion to dissolve, 
 but after the cause has been set down for a full and regular hear- 
 ing, the case is not then to be retained for any further proceedings, 
 but the bill will thereupon be dismissed with costs.* When the 
 court of chancery merely dissolves the injunction without dismiss- 
 ing the bill, and the complainant appeals, if the court of appeals 
 should be of opinion that the court of chancery did right in dis- 
 solving the injunction, it will affirm the decree so far as it goes, 
 and add the proper direction for dismissing the bill ; and in such 
 case the appellees will be regarded as the parties substantially pre- 
 vailing, and the appellants will be decreed to pay them their costs." 
 
 If proceedings on a judgment at law be enjoined by a court of 
 chancery, and the injunction be afterwards dissolved, and on appeal 
 taken to the court of appeals the order of dissolution is affirmed 
 
 > Wilson V. Eucker, 1 CaU. 500. 
 
 » Vass V. Magee, 1 H. & M. 2. 
 
 » Euf&ier V. Barrett, 6 Munf. 207. See also Scott v. Perkins and Wife, 4 W. Va. 
 591; TUden v. Maslin, Ex' or, &c., 5 Ibid. 377; Arbuckle v. McQajiahan et al, 6 
 Ibid. 101; Morehead et al v. De Ford et als, Ibid. 316, Lovell v. Chilton et al, 2 
 Ibid. 410; Kosset v. Green, 3 Ibid. 1; ZoU & Dunsmore v. Campbell el al, 3 Ibid. 
 226; Caperton v. Landcraft, Ibid. 540; Ludington v. Tiffany, 6 Ibid. 11; Parrill 
 V. McKinley el als, Ibid. 67. 
 
 *Kowton V. Kowton, 1 H. & M. 110; Byrne v. Lyle, 1 H. & M. 7. 
 
 s Heffiier v. Miller, &c., 2 Munf. 43. 
 
§ 140 REINSTATEMENT OP AN INJUNCTION. 503 
 
 in omnibus, an execution may be sued out on the judgment at law 
 before the decree of affirmance is entered up in the court of 
 chancery,* 
 
 Reinstatement of an Injunction. 
 
 § 140. Although an injunction has been dissolved, and even 
 though the order of dissolution has been affirmed by an appellate 
 court, yet the plaintiff may introduce further evidence,^ and on 
 that move to reinstate the injunction. Such a motion is in the 
 nature of an original application for an injunction, and if it be 
 denied the complainant may apply to the court of appeals, or any 
 one of its judges, who may direct the reinstatement.* 
 
 The power of the court of appeals, or the judges thereof, in this 
 respect, being derived from the statute* giving them authority to 
 award an injunction when it has been denied by a judge of the 
 lower court on the original application, is also governed by that 
 provision" of the statute which declares that every order so made 
 shall be directed to the clerk of such court as has jurisdiction 
 under the general provision for injunctions," and that the proceed- 
 ings there shall be as if the order had been made by such court 
 or the judge thereof. 
 
 A court of chancery is indeed always open for the purpose of 
 reinstating an injunction' either upon new evidence, or for any 
 other reason, and the jurisdiction either to renew or revive an in- 
 junction is freely exercised.^ The complainant may, however, by 
 
 ' Epea's Adm'r v. Dudley, 4 Leigh, 145. 
 
 ' Toll Bridge v. Free Bridge, 1 Band. 206; North's Ex' or ti. Perrow, 4 Band. 4. 
 » Gilliam D. AUen, 1 Band. 414; Webster v. Couch, 6 Band. 519; ToU Bridge 
 V. Free Bridge, 1 Band. 206. 
 ♦ ii 3437, 3438; Ck)de W. Va., Ch. 133, ? 7. 
 ' S 3439; Code W. Va., Ch. 133, i 9. 
 ' Ante, this chapter, § 132. 
 
 'Eadford's Ex'ora v. Innes's Ex'x, 1 H. & M. 7; Wesf s Ex' or v. Logwood, 6 
 Munf. 497. 
 
 ^ Where the dissolution had been obtained by fraud, it was held that the injunc- 
 tion might be reinstated. Daniel's Chy. Pr., Vol. 2, p. 1675, note; BiUingslea v. 
 Gilbert, 1 Bland. 568. See also White S. Springs Co. v. Eobinson, Sheriff, el al, 
 3 W. Va. 542. 
 
604 INJUNCTIONS. § 141 
 
 his own acts be estopped from receiving the aid of a court of 
 equity to reinstate an injunction upon the grounds on which it 
 was originally granted, just as his improper conduct may be good 
 ground for refusing it when it is first asked for.^ 
 
 Thus where the dissolution is had Avithout the authority or con- 
 sent of the complainant, but is afterwards recognized and acted on 
 by him, the writ will not be renewed, unless upon new and special 
 reasons being shown which did not exist when the injunction was 
 originally granted, or when it was dissolved.^ 
 
 Appeals from Injtmction Orders. 
 
 § 141. It is provided by statute in Virginia,' that when a cir- 
 cuit or corporation court, or a judge thereof, shall refuse to award 
 an injunction, a copy of proceedings in court, and the original 
 papers presented to the judge in vacation, with his order or refusal, 
 may be presented to a judge of the court of appeals, who may 
 thereupon award the injunction. Every order thus made ■* shall 
 be directed to the clerk of such court as has jurisdiction under the 
 general law,° and the proceedings thereupon shall be as if the order 
 had been made by such court, or the judge thereof. 
 
 It is also further provided by statute," that any person who is a 
 party to any case in chancery where there is a decree dissolving 
 an injunction, may present a petition for an appeal from the decree 
 or order ; and the same may be done from any decree requiring 
 money to be paid, or which changes the possession or title to prop- 
 erty, or adjudicates the principles of a cause, or to any final decree 
 or order. 
 
 In the absence of such a statute the authorities are conflicting 
 
 > Binney's Case, 2 Bland. 99. 
 
 *High on Injunctions, § 937; Livingston ir. Gibbons, 5 Johns. Chy. 250. 
 8 i 3438; Code W. Va., Ch. 133, g 7. 
 ' i 3436. 
 
 ' i 3439; Code W. Va., Ch. 133, 2 9. 
 
 '^ I 3454. The statute of West Virginia (Code, Ch. 135, g 1) usea the words 
 " dissolving or refusing to dissolve an injunction." 
 
§ 141 APPEALS FROM INJUNCTION ORDERS. 505 
 
 as to the right of appeal from an order dissolving a preliminary 
 or interlocutory injunction, and the weight of authority is said to 
 be against it.^ But a distinction has been drawn between cases 
 where the dissolution affects the merits of the cause, and cases 
 where it does not go to the merits, the right of appeal being recog- 
 nized in the former class, but denied in the latter.^ If, however, 
 the injunction is the only relief sought by the bill, an order for its 
 dissolution may be regarded as a final decree, and as such subject 
 to review by an appellate court ; but an appellate court will rarely, 
 if ever, interfere with such an order except the case be free from 
 doubt, or where some principle of law or equity has been violated, 
 or unless the case is clearly one of abuse of discretion on the part 
 of the court below.' 
 
 The regularity or irregularity of the proceeding in the court 
 below will not affect the right of appeal ; and where the chancel- 
 lor dissolved the injunction in court with a direction that the order 
 should not go out, and afterwards he made an order in vacation 
 allowing the order to go out, it was held that an appeal lay from 
 the order of dissolution so soon as it was put into operation, no 
 matter how irregularly it was done.^ 
 
 The extent of the right of appeal from decrees dissolving or 
 refusing to dissolve injunctions is well stated in the following 
 quotation from the opinion of Judge Moncure, in the case of The 
 Baltimore & Ohio R. R. Co. v. The City of Wheeling, 13 Grat. 
 57 : "As to the objection that no appeal lies from the other order, 
 it being a mere refusal of the judge in vacation to dissolve the in- 
 junction,' and not an order adjudicating the principles of the cause. 
 There seems to be no substantial difference between the provision 
 
 • High on Injunctions, ? 91. 
 'Ibid. 
 
 'Ibid., ?892. 
 
 * Sandolph v. Bandolph, 6 Band. 194. 
 
 'The statute of West Virginia (Code, Ch. 135, §1) expressly provides for an 
 appeal from an order refusing to dissolve an injunction. 
 
506 INJUNCTIONS. § 141 
 
 on this subject in the Code, p. 682, Ch. 182, § 2,' and the case as 
 it existed when the Code took effect. In Lomax v. Picot, 2 Rand. 
 247, it was decided that an order overruling a motion to dissolve 
 an injunction might come within the terms of the law allowing 
 appeals from interlocutory orders, and within the mischief intended 
 to be remedied by that law. The appeal in that case was from 
 such an order, and the court entertained jurisdiction of it. In 
 Talley v. Tyree, 2 Eob. E. 500, it was held, in accordance with 
 Lomax v. Picot, that an appeal lies to this court from an order of 
 a circuit court overruling a motion to dissolve an injunction which 
 was improvidently granted. The law under which those two cases 
 was decided being the same in effect with the provision on the sub- 
 ject in the Code, they maintain the right of appeal from the order 
 in this case. That order adjudicated the principles of the cause, 
 if any order overruling a motion to dissolve an injunction can have 
 that effect. The court, for good cause shown, may refuse to dis- 
 solve an injimction and continue it to the hearing, without adjudi- 
 cating the principles of the cause, in which case, of course, no ap- 
 peal would lie from the order. And even when the principles of 
 the cause are adjudicated by the order, an appeal may be refused, 
 
 » ? 3454; Code W. Va., Ch. 135, ? 1. The statute in Virgmia (Code, ? 3467; 
 Code W. Va., Ch. 135, J 12) also provides that any court or judge to whom a pe- 
 tition is duly presented, if of opinion that the decision complained of ought to be 
 reviewed, may allow an appeal, writ of error, or supersedeas, and in a case of ap- 
 peal (as well as of a supersedeas) may award a supersedeas to stay proceedings, 
 either in whole or in part; and (Code, J 3470; Code W. Va., Ch. 135, 1 14) where 
 the appeal is from an order or decree dissolving an injunction or dismissing a bill 
 of injunction, the bond shall, in addition to the other conditions required upon an 
 appeal, contain a further condition to indemnify and save harmless the surety in 
 the injunction-bond against all loss or damage in consequence of his suretyship, 
 and with condition, when no supersedeas is awarded, to pay such specific damages, 
 and such costs as may be awarded or incurred. See, for former law, Eppes ». 
 Thurman, 4 Band. 384; McKay v. Kite's Ex' or, Ibid. 564. But if after the dis- 
 solution of an injunction the complainant appeals to the court of appeals, the surety 
 in the bond given for prosecuting the injunction is not liable for the costs and dam- 
 ages which may accrue on the appeal. Woodson v. Johns, 3 Munf. 230. See also 
 Kahn v. Kerngood, 80 Va. 342. A refusal to dissolve an injunction appointing a 
 receiver is an appealable order, although the causes in which the question arises are 
 still at rules. Bristow d. Home Bldg, Co., 91 Va. 18. 
 
§ 141 APPEALS FEOM INJUNCTION ORDERS. 507 
 
 if the court or judge to ■whom the petition therefor is presented 
 deems it most proper that the cause should be proceeded in further 
 in the court below before an appeal is allowed therein.^ Or if an 
 appeal is allowed in such a case, it may be dismissed as having 
 heen prematurely allowed, if the court deems it most proper that 
 the case should be farther proceeded in as aforesaid." 
 
 When an injunction is dissolved in part, and the complainant 
 appeals therefrom, if the court of appeals should be of opinion 
 that there ought to have been a total dissolution, it will correct 
 the decree in that particular.^ 
 
 In the case of Turner v. Scott and Others, 5 Rand. 332, a bill 
 was iiled to restrain the defendant from proceeding on the judg- 
 ment at law obtained by one of the defendants. An injunction 
 was granted, and was afterwards dissolved, and upon appeal there- 
 from it was held, that the injunction was revived by the appeal. 
 After the decision of this case,^ an act * was passed by the legisla- 
 ture by which it was provided that no appeal from any order dis- 
 solving an injunction shall have the effect of reviving the same, 
 until the plaintiff shall have entered into bond with security in a 
 penalty equal to the penalty of the injunction bond. But this law 
 has been changed from time to time until it stands now as we have 
 stated it : that in the discretion of the court, upon an appeal, there 
 may be also a supersedeas to the decree dissolving the injunction 
 upon a proper bond being executed.^ 
 
 But unless settled by statute, an appeal from a decree dissolving 
 an injunction is said not to have the effect of reviving and con- 
 
 1 ? 3466. The statute of West Virginia (Code, Ch. 135, ? 11) does not contain 
 this provision. 
 
 ' Ealston, &c. v. Miller, 3 Band. 44. 
 
 ' February 27, 1828. 
 
 *Acts 1827-28, p. 21, Ch. 25, ? 3; Sup. to Eev. Code, p. 126, § 3. See also 
 Acts 1830-31, p. 50, § 30; p. 54, ? 31; Acts 1844-45, p. 50, Ch. 47, ? 1. 
 
 "High on Injunctions, ? 893, citing Garrow v. Carpenter, 4 Stew. & P. 336; 
 Chegary v. Soofield, 1 Halst. Chy. 525; Hoyt *. Gelston, 13 Johns. 139; Wood v. 
 Dwight, 7 Johns. Chy. 295; Young v. Grundy, 6 Cranch, 51, and contra, Penrice 
 ■u. Wallis. 37 Miss. 172. 
 
508 INJUNCTIONS. § 142 
 
 tinuing the injunction itself, because the process of the court, when 
 once discharged, can only be revived by a new exercise of judicial 
 power. A reason assigned for this view is, that an appeal being 
 merely the act of the party, cannot of itself affect the validity of 
 the order of the court, nor can it give new life or force to an in- 
 junction which the court has decreed no longer exists ; but this 
 reasoning can hardly be said to apply to appeals which, by the law 
 of the State, are not matters of right. It is admitted, however, 
 that the appellate court, in granting the appeal, may at the same 
 time grant an injunction.^ 
 
 Costs in Injwnetion Proceeding. 
 
 § 142. In all suits in chancery the award of costs is in the 
 discretion of the court, except that in an appellate court it is pro- 
 vided by statute,^ that costs shall be recovered by the party sub- 
 stantially prevailing.' In all cases, however, the courts so exer- 
 cise the discretion given them as to award the costs to the party 
 substantially prevailing, unless under very peculiar circumstances 
 some other determination appears more just and equitable ; such, 
 for instance, is sometimes said to be the case when a party by his 
 motion asks for too much.'' 
 
 Generally speaking, if the injunction be perpetuated at the 
 hearing as to any part of the sum enjoined, the complainant will 
 recover his costs ; but this is not always the case, the matter being 
 in the sound discretion of the chancellor under all the circum- 
 stances." 
 
 A judgment at law was perpetually enjoined as to a part which 
 was composed of just discounts claimed by plaintiff in equity, of 
 
 • Daniel's Chy. Pr., Vol. 2, p. 1468-69; Chegary v. Scofield, 1 Halst. Chy. 529; 
 Doughty t). Somerville, &c., 3 Halst. Chy. 629. See also McDaniel v. Ballard, 
 Sheriff, 4 W. Va. 196; Freshwater v. Pittsburgh, W. & K. B. E. Co., 6 W. Va. 503. 
 
 » g 3547; Code W. Va., Ch. 138, § 10. 
 
 » See also Post, ? 259. 
 
 'Daniel's Chy. Pr., Vol. 2, p. 1679. 
 
 > Degraffenreid v. Donald & Co., 2 H. & M. 10; Eosa v. Gordon, 2 Munf. 289. 
 See also Tuley v. Barton, 79 Va. 387. 
 
§ 143 DAMAGES IN INJUNCTION PROCEEDINGS. 509 
 
 which he might have availed himself at law if he had made de- 
 fence, and it was dissolved as to the residue. Here it was held 
 that the plaintiff should pay the defendant his costs.' 
 
 Where a purchaser came into equity to enjoin a judgment for 
 his purchase money for land because the title was not perfected, 
 although it appeared that the state of the vendor's title was known 
 to him when he bought, and it was held that the vendor was en- 
 titled to a reasonable time within which to perfect his title, and 
 the title was in fact perfected and the injunction dissolved ; yet as 
 the purchaser had not received a good title when the bill was filed, 
 and therefore rightfully came into equity to enjoin the judgment, 
 he was held to be entitled to recover costs.^ 
 
 In all cases in which the bill is merely for an injunction, and 
 there is but a single defendant, if there is a decree dissolving the 
 injunction, and that decree is made after the cause has been set 
 down for a full and regular hearing, the case is not then to be re- 
 tained for any further proceedings, but the bill will be dismissed 
 with costs.^ 
 
 Damages in Injunction Proceedings. 
 
 § 143. The statutory provision* for damages upon a proceeding 
 by injimction ° is that when an injunction to stay proceedings on a 
 judgment or claim for money is dissolved, wholly or in part, there 
 shall be paid to the party having such judgment or decree dam- 
 ages at the rate of ten per cent, from the time the injunction took 
 effect until the dissolution, on such sum as appears to be due, in- 
 cluding the costs ; but the court wherein the injunction is may > 
 direct that no such damages be paid, or only such portion thereof 
 as it may deem just. In a case wherein a forthcoming bond was 
 
 1 Donally v. Ginatt's Adm'r, 5 Leigh, 359; Shipman v. Fletcher's Adm'r, 95 
 Va. 585. 
 
 ' Reeves v. Dickey, 10 Grat. 138. 
 
 ^ Eowton V. Eowton, 1 H. & M. 91; Byrne v. Lyle, Ibid. 7. 
 
 « ^ 3445; Code W. Va., Ch. 133, I 12; § 3497; Ctode W. Va., Ch. 136, § 3. 
 
 * Where there is an appeal, see Ante, § 141. 
 
510 INJUNCTIONS. ' § 143 
 
 forfeited and no execution thereon before the injunction took effect, 
 the court awarding such execution shall include in its judgment or 
 decree damages as aforesaid. In other cases, the damages shall be 
 included in the execution on the judgment or decree to which the 
 injunction was awarded. The damages thus decreed are in satis- 
 faction of so much of the interest for the time they are given as 
 may not exceed the said damages.' 
 
 When an injunction to a judgment for specific personal property 
 is dissolved, the person who is entitled to execution of said judg- 
 ment, or who would be entitled if execution had not been had, 
 may, on motion to the court from which such execution has issued, 
 or might issue, after four weeks notice to the defendant or his per- 
 sonal representative, have a jury impanelled to ascertain the dam- 
 ages sustained by reason of the detention of such property subse- 
 quent to such judgment, or, if it was on a verdict, subsequent to 
 such verdict ; and judgment shall be rendered for the damages so 
 ascertained, if any. 
 
 The damages are calculated on whatever appears to have been 
 due by virtue of the judgment, or so much thereof as was enjoined ^ 
 at the time the injunction was awarded ; that is, upon the princi- 
 pal and interest up to that time, and the costs at law ; ^ and when 
 there are two defendants to the judgment, and one of them ob- 
 tains an injunction which is dissolved, that one only is liable for 
 the damages, while of course the other defendant remains as be- 
 fore, liable for the principal and interest of the debt and the costs 
 at law.^ 
 
 > State V. Hall et al, 40 W. Va. 455; 21 S. E. K. 761. 
 
 ' Southerland v. Crawford, 2 J. J. Marsh, 370. 
 
 ' Washington's Ex' or t. Parks, 6 Leigh, 581. It is held that where an injunc- 
 tion is granted without requiring a bond the court haa no power to award damages 
 to the injured party, except by such decree in the matter of costs as may be deemed 
 equitable, but as, without the statute or bond, the court may impose proper con- 
 ditions to awarding an injunction in the first instance, so it seems that the court 
 may, in the absence of a statute, as an incident to its jurisdiction, cause damages to 
 be assessed under its own direction, or may leave the party to his action at law. 
 EusseU V. Farley, 105 U. S. R. 433. 
 
 'Eobinson's Practice (old ed. ), Vol. 2, p. 245, 
 
§ 143 DAMAGES IN INJUNCTION PROCEEDINGS. 511 
 
 The damages are to be computed from the time when the in- 
 junction was granted, to the date of its dissolution in the court 
 below, but not for the time it was pending in the appellate court ;' 
 and when upon a bill of review an injunction is granted to a judg- 
 ment, which is afterwards dissolved, the damages are to be com- 
 puted, not upon the amount of the judgment at the time it was 
 first granted on the original bill, but on the amount of the judg- 
 ment at the time it was granted on the bill of review.^ 
 
 A person not a party to the judgment, but who enjoins it, is 
 upon the dissolution thereof liable to pay the damages prescribed 
 by the statute.' The right to damages upon the dissolution of an 
 injunction is, however, independent of any statutory provision on 
 the subject, and, amid some conflict of the decided cases, it is said 
 that this right is cumulative of, and in addition to, the right of 
 action at law for damages on the injunction bond ; ■• but it has also 
 been held that, in decreeing damages upon the dissolution, the court 
 cannot go beyond the bond, and award greater damages than the 
 penalty therein fixed ; and when the damages have been thus 
 awarded, the decree of the court is conclusive as to the amount 
 which can be recovered in an action on the bond.° 
 
 The discretion given to the court to determine the amount of 
 damages which should be awarded is, like other such matters, within 
 the judicial discretion limited by fixed rules, and the amount is 
 confined to an estimate of the actual, natural, and proximate injury 
 committed, excluding speculative and remote damages. For in- 
 stance, the courts will make no allowance for the benefits that 
 might have accrued from the opening of a street which has been 
 enjoined ; but where the injunction operates to delay the sale of 
 
 ' Jeter v. Langhome, 5 Grat. 193. 
 
 ' Claytor v. Anthony, 15 Grat. 518. 
 
 ' Claytor v. Anthony, 15 Grat. 518. 
 
 *High on Injunctions, ? 962; Hubble v. Cole, 88 Va. 237. 
 
 ' High on Injunctions, ? 963. The right of a court of equity to award damages 
 is confined by the statute (? 3445) to cases where the injunction was to stay pro- 
 ceedings on a judgment or decree for money and is dissolved wholly or in part. 
 
512 INJUNCTIONS. § 143 
 
 property, real and personal, and pending such delay great depre- 
 ciation occurs in the value of the property, such loss being regarded 
 as occasioned by the injunction, may be properly included in esti- 
 mating the damages incurred.^ 
 
 When pending a bill for an injunction to a judgment, and for 
 the rescission of a contract for the purchase of land on the ground 
 of an incumbrance and defect of title, the vendor removed the 
 incumbrance and procured the title, and the injxmction was there- 
 upon dissolved, it was held that under the circumstances of the 
 case no damages should be awarded, although the plaintiff re- 
 covered his costs.^ A decree for damages has been held to form 
 a part of, and to be a lien as of the date of a judgment which was 
 enjoined, and thus to antedate incumbrances created upon the land 
 between the date of the judgment and the dissolution of the in- 
 junction.' This was considered the necessary consequence of a 
 similar decision as to the question of damages upon the aiSrm- 
 ance of a judgment from which there was an appeal to the court 
 of appeals.* 
 
 ' High on Injunctions, § 964. 
 
 ' Young's Adm'r & Bowyer v. McClung, &c., 9 Gfrat. 336. 
 
 ' Michaux's Adm'r v. Brown et als, 10 Grat. 620. 
 
 * McClung V. Beirne, 10 Leigli, 394. 
 
CHAPTEE IX. 
 
 EECEIVEES. 
 
 i 144. Principles Governing the Ap- 
 pointment of Beceivers. 
 
 J 145. Proceedings for the Appoint- 
 ment of Keceivers. 
 
 ? 146. Evidence upon the Application 
 for a Keceiver. 
 
 ? 147. The Effect of the Appointment 
 of a Keceiver. 
 
 § 148. The Eights, Butiee, and Liabili- 
 ties of a Keceiver. 
 
 ? 149. Who should be Appointed a Ke- 
 
 ? 150. Receivers of Corporations. 
 
 i 151. Keceivers of Railroads. 
 
 2 152. Beceivers of Partnerships. 
 
 J 153. Keceivers for Renting Land. 
 
 J 154. Beceivers of Estates of Infants, 
 Lunatics, etc. 
 
 J 155. Beceivers where there are Trusts. 
 
 J 156. Beceivers where there are In- 
 junctions. 
 
 J 157. The Discharge of a Keceiver. 
 
 Principles Governing the Appointment of Receivers. 
 
 § 144. The object of the appointment of a receiver is to pre- 
 serve the status of property until there can be an adjudication of 
 conflicting claims to or interests in it ; and the necessity for the 
 appointment arises, when all the circumstances of the case render 
 it improper that either of the litigant parties shall hold the prop- 
 erty pending the controversy, and yet its safe custody or profitable 
 preservation make it to the interests of all claimants that it should 
 be in the hands of a person competent to care for it, or to control 
 and manage it.' 
 
 The power to appoint a receiver is of the same nature with the 
 right to grant an injunction, and it operates with even greater 
 
 ' Hannah K. Chase's Case, 1 Bland. Chy. R. 213. A receiver may be appointed 
 in a creditor's suit to collect the assets of an estate (Davis v. Chapman, 83 Va. 67, 
 citing Farmer v. Yates, 23 Grat. 145), and after a decree to sell real estate to satisfy 
 liens and an appeal from that decree, the court below may appoint a receiver to 
 rent out the real estate. Adkins v. Edwards, 83 Va. 316; Moran v. Johnston, 26 
 Grat. 108. For a collection and classification of the cases showing the circum- 
 stances under which a receiver ought to be appointed, see Cortleyen v. Hathaway, 
 3 Stockton's Chy. 39; 64 Am. Dec. 478; note, 482 to 491. 
 33 
 
514 EECBIVEES. § 144 
 
 stringency.^ It is never to be exercised rashly, or when it would 
 be productive of serious injustice or injury to private rights ; but 
 the circumstances of the case demanding it must be such as make 
 that mode of proceeding the appropriate means of securing an ap- 
 propriate end.^ 
 
 But subject to these general considerations, the appointment of 
 a receiver is a matter resting in the sound discretion of the court, 
 to be exercised or refused as may be right under all the circum- 
 stances of the case ; ^ and the discretion being regulated by legal 
 principles, is applied for the protection of the property in contro- 
 versy where there is danger that the subject-matter of the contro- 
 versy may be wasted or destroyed, impaired, injured, or removed 
 during the progress of the suit ; the object being to secure the fund 
 for the party found upon the final hearing to be entitled to it, and 
 to produce as little prejudice as possible to any one concerned. 
 When one party has a clear right to the possession of property, 
 and the dispute is as to the title only, the court will very reluctantly 
 disturb that possession. But where the property is exposed to dan- 
 ger, and the party holding it has not a clear legal right to the 
 possession, it is the duty of the court to interpose and to have it 
 secured.* 
 
 When the court is unable to see that any benefit will result from 
 appointing a receiver in the cause, or that any injury will follow 
 from refusing the relief, it will not interfere, especially if it is ap- 
 parent that great confusion and difficulty in the management of the 
 property may result to both parties from a receivership. So, if 
 
 I Beverly v. Brooke, 4 Grat. 187; Smith v. Butcher, 28 Grat. 151; Kerr on Ee- 
 ceivers, p. 12; Penn v. Whiteheads, 12 Grat. 83; Parsons on Partnership, p. 313; 
 Thornton v. Washington Savings Bank, 76 Va. 432. 
 
 ' High on Receivers, § 3; Furlong v. Edwards, 3 Md. 112; Chicago & AUeghany 
 Oil and Mining Co. v. United States Petroleum Co., 57 Pa. St. 83; Beverly v. 
 Brooke et als, 4 Grat. 208; Stevens et als v. Davison, 18 Grat. 828; Perry on Trusts 
 ? 819; Mitf. Eq. PI. 104, 122. ' 
 
 ' Story's Equity Jurisprudence, § 831; Norris v. Lake, 89 Va. 513; Lyle et cd v. 
 Commercial Nat. Bank, 93 Va. 487. 
 
 * High on Keceivers, i 4; Lennox v. Netrebe, 1 Hump. 225. 
 
§ 144 THE APPOINTMENT OF KECEIVEES. 515 
 
 upon a consideration of all the circumstances of the case it is ap- 
 parent that greater injury will ensue from appointing a receiver 
 than from leaving the property in its present possession, or if other 
 circumstances of propriety or convenience render the appointment 
 improper or inexpedient, the court will refuse to interfere. Nor 
 will a receiver be appointed in an improper case, even by consent 
 of parties, especially when the rights of third persons are concerned 
 and may be jeopardized by the appointment.' 
 
 The immediate moving cause for the appointment of a receiver 
 is that the subject of litigation may be preserved, or the rents and 
 profits of it kept from waste, loss or destruction ; so that there 
 may be some harvest, some fruits to gather after the labors of the 
 controversy are over. The ulterior objects of the appointment are 
 those contemplated by the suit itself; they are the several kinds 
 of relief which may be asked for and obtained by the complain- 
 ant's bill.^ The appointment of a receiver does not involve the 
 determination of any right, or affect the title of either party in any 
 manner whatever ; but still, an application for such appointment 
 can only be made by those who have an acknowledged, or at least 
 a probable interest,' or where there is strong reason to believe that 
 the party asking for a receiver will recover. 
 
 A receiver is appointed on behalf of all parties, and not of the 
 plaintiff or one defendant only ; * but if the plaintiff claims the 
 whole property as a purchase, or by superior title, if he succeeds, 
 it eventuates that the appointment was entirely and exclusively for 
 his benefit.* The principles governing - the appointment of a re- 
 ceiver being very much the same as those controlling the granting 
 or refusing injunctions, it is always a sufficient answer to the ap- 
 plication, that the person aggrieved has a full, adequate and suffi- 
 
 ^ High on Receivers, § 8, and note. 
 'Hannah K. Chase's case, 1 Bland. Chy. E. 213. 
 
 'High on Eeceivers, ? 11, 12; Daniel's Chy. Pr., Vol. 2, p. 1717, note. 
 * In the matter of Eachel Colvin, 3 Md. Chy. Dec. 303; McMahon v. McCleman, 
 10 W. Va. 419. 
 » Hannah K. Chase's case, 1 Bland. Chy. E, 213. 
 
516 RECEIVERS. §144 
 
 cient remedy at law.' So, as in cases of injunction, courts of equity- 
 lend their aid by the appointment of a receiver only to those who 
 have been diligent in the assertion of their rights ; and hence, no 
 matter how far the circumstances of a case would have justified 
 the appointment had the application been made in due time, the 
 laches, neglect or acquiescence of the aggrieved party will wholly 
 debar his right.^ Fraud on the part of the defendant, danger to 
 the property or fund in controversy,^ insolvency of the defendant,* 
 coupled with a probable cause of action in the plaintiff, or danger 
 of loss from the insolvency," the insufficiency of mortgaged premises 
 to pay the debt secured,^ where parties have equitable interests 
 in the subject of litigation,' where there are conflicting incum- 
 brances,* where a defendant is out of the jurisdiction of the 
 court, or has absconded to avoid service of process,^ where an 
 executor is insane, out of the jurisdiction, insolvent, or has not 
 done what he should to get in the personal estate," present the 
 main grounds that justify the appointment of receivers. 
 
 The courts refuse the appointment where there is a dispute re- 
 specting an estate which depends upon a mere legal title, because 
 then the defendant has his remedy by asserting his title in a court 
 of law ; " and they are very loth to appoint a receiver in any case 
 against a party having possession under a legal title,'^ or to inter- 
 fere in this respect against a joint tenant or tenant in common in 
 possession, at the suit of another joint-tenant or tenant in common." 
 
 1 Speights V. Peters, 9 Gill. 476; High on Receivers, ? 10. 
 ' High on Keceivers, J 14 and note. 
 
 = Blondheim V. Moore, 11 Md. 365; Haight v. Burr, 19 Md. 130; Voshell v. 
 Hynson, 26 Md. 83. 
 
 * Hannah K. Chase' s case, 1 Bland, 213. 
 
 * High on Eeceivers, § 18. 
 ^Ibid., ?666. 
 
 ' Daniel's Chy. Pr., Vol. 2; p. 7116; 2 Story's Eq. Jurisprudence, ? 829. 
 
 8 Daniel's Chy. Pr., Vol. 2, p. 1717-1718. 
 
 ° Dowling V. Hudson, 14 Beav. 423. 
 
 »» Daniel's Chy. Pr., Vol. 2, p. 1722. 
 
 "Daniel's Chy. Pr., Vol. 2, p. 1725. 
 
 '^ Llo^d V. Passingham, 16 Ves. 59. " Daniel's Chy. Pr., Vol. 2, p. 1726. 
 
§ 145 PROCEEDINGS FOE APPOINTMENT OF EEOEIVEE. 517 
 
 Proceedings for the Appointment of a Receiver. 
 
 § 145. Unless perhaps in the case of infants and lunatics a suit 
 must be actually pending to justify a court of equity in appointing 
 a receiver ; ' but as this power is incidental to the power to award 
 an injunction, and as both powers may be exercised in vacation,^ 
 a bill prepared for the very purpose of obtaining the appointment 
 of a receiver coupled with the other and ultimate objects of relief 
 sought by the proceedings in equity, may be presented to the judge 
 in vacation, and a receiver may be appointed at the very institution 
 of the suit.^ 
 
 The person or corporation whose property it is sought to place 
 in the hands of a receiver must be made a party to the suit, and, 
 as a general rule, where the application for the appointment of a 
 receiver is made in vacation, that party is entitled to a reasonable 
 notice ; and this rule is not departed from except in cases of very 
 great emergency.* Notice, however, is not required where to have 
 to give it would defeat the rights of the creditor and result in great 
 injury to him ; ^ and the notice has been held to have been properly 
 dispensed with where the defendant had absconded for the purpose 
 of avoiding service of process ; where the defendant had left the 
 State, and was not expected to return for several months, and no 
 person was authorized to represent him ; where real estate had been 
 conveyed by a debtor in trust for the payment of his debts, and 
 the trustee had been in possession a number of years without pay- 
 
 ' High on Receivers, J 17. Although, as we hare seen {Anle, § 144, note, p. 513), 
 a receiver may be appointed by the lower court after a decree to sell real estate. 
 Adkins v. Edwards, 83 Va. 316. 
 
 " Penn v. Whiteheads, 12 Grat. 83; Smith v. Butcher, 28 Grat. 144. 
 
 ' See the statute of West Virginia on the subject of the appointment of special 
 receivers in a pending case in which the property of a corporation or firm is in- 
 volved. Code, Ch. 133, ? 28. 
 
 * High on Beceivers, ? Ill, 112. 
 
 ^ High on Eeceivers, § 113; People v. Norton, 1 Paige, 17; Williamson v. WU- 
 son, 1 Bland, 418; Go wan v. Jeffries, 2 Ashm. 296; Parsons on Partnership, * p. 
 316, note x; Daniel's Chy. Pr., Vol. 2, p. 1735, and note 3. 
 
518 EECEIVEES. § 145 
 
 ing ; ' and where the bill charged against the trustee maladminis- 
 tration of the trust, and threats of acts which, if committed, would 
 cause irremediable injury.* It is not indispensable, however, that 
 the notice should be personally served upon each defendant, pro- 
 vided service be had upon one of the defendants authorized to 
 represent the others ; and where the parties in interest are actually 
 represented in court by counsel who appear in resistance to the mo- 
 tion, the application may be entertained without any formal notice/ 
 
 In the cases of infants and lunatics, it has been held that a 
 receiver may be appointed otherwise than in a pending suit ; * but 
 such is not the general practice, and it cannot be said to prevail 
 in Virginia. Indeed, in treating of the property of infants, it is 
 laid down by high authority, that if a receiver of the estate is 
 wanted, or a compulsory order on trustees, or if there be compli- 
 cated accounts, a bill is necessary.^ 
 
 It has been declared to be a general rule, that a receiver will 
 not be appointed until after the defendant has answered ; but that 
 in urgent cases, where it appears to the court that the merits of 
 the case, as shown by the affidavits, require the immediate appoint- 
 ment of a receiver, the court may do so on the plaintiff's motion 
 before answer ; ^ but the rule is frequently disregarded, even in 
 cases that are not especially urgent, and the appointment will be 
 made before answer wherever the justice of the case requires it.'' 
 
 When the application for a receiver is made before decree, it 
 will not be granted unless the bill contains a specific prayer, that 
 a receiver may be appointed;* and the facts relied on for this 
 
 ' High on Receivers, § 117. 
 
 ' Davis V. Brown, 2 Del. Chy. E. 188. 
 
 'High on Receivers, § 116; McLean v. Lafayette Bank, 3 McLean, 503; Danl. 
 Chy. Pr., Vol. 2, p. 1735. 
 
 * Bakers. Backus, 32111. 79; Danl. Chy. Pr., Vol. 2, p. 1354-1729, note, and 
 as to lunatics especially, p. 1361. 
 
 ° Adams' Equity, top p. 600 [281]. 
 
 ^ Parsons on Partnership, top p. 343, note. 
 
 ' Daniel's Chy. Pr., Vol. 2, p. 1734. 
 
 8 Daniel's Chy. Pr., Vol. 2, p. 1734. 
 
§ 145 PEOCERDINGS FOE APPOINTMENT OF RECEIVEE. 519 
 
 character of Velief should be distinctly and specifically set forth, 
 and not merely alleged in general terms.* At the hearing, how- 
 ever, or after a decree, a receiver may be appointed, though not 
 prayed in the bill, if the circumstances of the case require it ; and 
 the application may be granted after decree, although it has been 
 previously refused, if a state of facts entitling the party to a re- 
 ceiver appears upon the proceedings in the cause.^ 
 
 The complainant may also amend his bill, as he may do on an 
 application for an injunction ; but if he does so after he has given 
 the notice of the motion for an injunction or a receiver, he thereby 
 waives the notice, and must pay the defendant's costs of the 
 motion.' 
 
 The fact that the bill on which an injunction and a receiver are 
 sought, is •multifarious, or that it is liable to objection because of 
 misjoinder of parties, constitutes no sufficient objection to a motion 
 for a receiver ; nor is it a sufficient answer to the application that 
 the record is incomplete in particulars, or not in such shape as 
 may be necessary to enable the court to administer complete justice 
 between the parties.* The form of the appointment of a receiver 
 depends upon the duties to be performed, the security required to 
 be given by the receiver, and the mode of accountability required 
 of him, all of which should strictly and properly be defined in 
 the order of appointment ; ^ and it should state distinctly on the 
 face of it over what property the receiver is appointed, or else 
 refer to the pleadings, or some document in the cause which de- 
 scribes the property. The order usually directs the receiver to 
 settle his accounts from time to time, and to pay the balance found 
 due from him into court to the credit of the cause, to be there 
 invested and accumulated, or otherwise disposed of as may be 
 directed. 
 
 ^ High on Keceivers, § 17. 
 
 'Ibid., II 98, 103, 110; Daniel's Chy. Pr., Vol. 2, p. 1734. 
 
 'Daniel's Chy. Pr., Vol. 2, p. 1602; Ibid., Vol. 1, p. 425. 
 
 * High on Eeceivers, ? 86. 
 
 ' Story's Equity Jurisprudence, I 829 a. 
 
520 EECEIVEES. § 145 
 
 If the appointment is over the rents and profits of real or lease- 
 hold estates, the order directs the tenant of such estate to attorn 
 and pay the rents in arrears and growing rents to the receiver. 
 If the appointment is of outstanding personal estate, or of part- 
 nership property, the order directs the parties to deliver over to 
 the receiver all securities, stock in trade, and effects of the part- 
 nership, together with the books and papers relating thereto.' 
 
 In Virginia an appeal will lie from an order appointing a re- 
 ceiver ; ^ but whether it will lie from an order refusing to appoint 
 a receiver is a matter upon which the authorities are not reconciled, 
 the conflict, however, being to a large extent due to the difference 
 of practice in the different States on this subject. It is undoubt- 
 edly a general rule that the appointment and discharge of a re- 
 ceiver are matters of discretion in the court where the 'litigation is 
 pending, but this is not always and absolutely so ; ' and while, if 
 the testimony addressed to the court below is conflicting, and if 
 that court, after duly weighing and considering it, refuses to ap- 
 point a receiver, an appellate court will not interfere with the 
 exercise of this discretion, in the absence of any fact showing that 
 it has been abused,* yet this rule only operates as other rules of 
 presumption do in the appellate court ; and subject to statutory 
 regulations governing the right of appeal, it is held in many of 
 
 •Daniel's Chy. Pr., Vol. 2, p. 1737. 
 
 '' An appeal and supersedeas was granted in Virginia in the case of Satterlee v. 
 Penny & Cameron, Staunton, 1879; Va. Law Journal, 1883, p. 246. The right 
 rests upon that provision of the statute (? 3454; Code W. Va., Ch. 135, ? 1, 7th 
 clause) which gives the right of appeal in any case in chancery in which there is 
 a decree requiring the possession or title of property to be changed (Shannon v. 
 Hanks, 88 Va. 338; Hutton v. Lockridge, 27 W. Va. 435), but the effect of the 
 decree appointing a receiver must be in fact to change the possession of property. 
 Harris v. Hanger, 26 W. Va. 595. A supersedeas does not of itself remove the 
 receiver or take away his right to control the property pending the appeal. Bristow 
 V. Home EuUding Co., 91 Va. 18; 20 S. E. E. 946. 
 
 ' Railroad Co. v. Soutter, 2 Wall. 521. 
 
 *High on Eeceivers, I 25; Eeid d. Eeid, 38 Ga. 24; Eobinson v. Eoss, 40 Ga. 
 375; Cohen v. Myers, 42 Ga. 42; Melendy & Eussell v. Barbour, Eeceiver, 78 
 Va. 544. 
 
§ 146 EVIDENCE UPON APPLICATION FOE EECEIVEE. 521 
 
 the States that appeals will lie from orders appointing or refasing 
 to appoint, or discharging or refusing to discharge receivers.' It 
 has been held, however, that the receiver himself cannot appeal 
 from an order removing him.^ 
 
 Evidence upon the Application for a Receiver. 
 
 § 146. We have already^ briefly considered the effect of an an- 
 swer as evidence on a motion to appoint a receiver. The evidence 
 necessary to overcome the effect of an answer may be introduced 
 by affidavits, which may be filed both before and after the answer 
 comes in ; * and it is enough that the plaintiff by his bill and affi- 
 davits makes out a prima facie case, for the court in passing upon 
 the application in no manner anticipates the ultimate judgment 
 upon the rights of the parties on the merits of the case ; ^ indeed, 
 so little does the court consider the merits of the case, that on 
 such an application it will not even regard an objection that the 
 bill is multifarious, or that it is faulty for misjoinder of parties.' 
 
 The evidence introduced when the application is before decree 
 must be in support of the allegations of the bill, and the answer 
 of the defendant is to be regarded merely as his affidavit. Affi- 
 davits may be received and read in opposition to the answer ; ^ 
 and where the answer is merely that of a corporation under seal, 
 it is to be considered only as a denial of the allegations in the bill 
 analagous to the general issue at law, so as to put the plaintiff t6 
 the proof of such allegations.' 
 
 ' High on Eeceivers, § 25 to | 29. 
 
 ^ In re Eachel Colvin, 3 Md. Cliy. Dec. 302. The distinction made in the case 
 of Wagner v. Coen, 41 W. Va. 352, is that where the sole cause of the suit is the 
 appointment of a receiver, and by so appointing him the court adjudicates the 
 principles of the cause, the decree is appealable, and this although the possession 
 and administration of personal property alone be involved. 
 
 ' Ante, Ch. 6, § 127, Div. 10. 
 
 *High on Beceivers, U 84, 85, 88, 89. 
 
 ' High on Beceivers, § 738. 
 
 * High on Eeceivers, J 86. 
 
 'Daniel's Chy. Pr., Vol. 2, p. 1736. 
 
 8 Baltimore & Ohio Eailroad Co. v. City of Wheeling, 13 Grat, 62. 
 
522 EECEIVEES. § 147 
 
 The Effect of the Appointment of a Receiver. 
 
 § 147. The appointment of a receiver being for the preserva- 
 tion of the property and the protection of the litigants pending 
 the suit, such appointment gives no advantage to the person at 
 whose instance it is made, nor does it change any title or create 
 any lien ; although, as we have before observed, the propriety of 
 appointing a receiver at all depends to a considerable extent upon 
 the probability that the plaintiff will ultimately be entitled to a 
 decree, as it is made to appear by his bill and affidavits.^ 
 
 The effect of appointing a receiver is often compared with that 
 of granting an injunction ; but the principal element of difference 
 seems to be this, that an injunction is strictly a conservative remedy, 
 merely restraining action and preserving matters in statu quo, while 
 the appointment of a receiver is a more active remedy, since it 
 changes the possession as well as the subsequent control and man- 
 agement of the property.^ The appointment of a receiver does 
 not affect the right of any one to rely on the statute of limitations, 
 and a payment by a receiver will not be regarded as such an ac- 
 knowledgment of the debt as rebuts the presumption of payment. 
 It has been held, however, that the appointment of a receiver pre- 
 vents the statute of limitations from running, at least in a court of 
 equity, in favor of a stranger to a suit.' 
 
 ' High on Receivers, pp. 5, 6, 8; Kerr on Eeceivers, p. 12. The appointment 
 of a receiver does not affect the title to the fund which is still regarded as in custodia 
 legis. Harman et cds v. McMullin et ah, 85 Va. 187. Davis el al v. Bonney et al, 
 89 Va. 760. But, so far as the right of a receiver to take, hold, and dispose of 
 property under the order of the court is concerned, the title to the debtor's property 
 vests in him by virtue of his appointment, and there need be no formal assignment. 
 Porter v. Williams, 9 N. Y. 142; 59 Am. Dec. 519; note, 524. But see Am. & 
 Eng. Encyc. of Law, Vol. 20, p. 128. No attachment may be levied on property 
 after the appointment of a receiver. Hagedon v. The Bank, 1 Pinney, 61; 39 Am. 
 Deo. 275; Am. & Eng. Encyc of Law, Vol. 20, p. 138. 
 
 ' High on Beceivers, 05; Parsons on Partnership, * 312. 
 
 ' High on Receivers, ? 184. 
 
§ 148 EIGHTS, DUTIES, AND LIABILITIES OF RECEIVER. 523 
 
 Rights, Duties, and Liabilities of a Receiver. 
 
 § 148. A receiver is an officer of the court that appoints him, 
 having no functions or authority except what is received by virtue 
 of the court's decree,' or what may properly be inferred therefrom ; 
 and he is often regarded, as to the property in his custody, just as 
 the sheriff is who levies an execution.'' It will be seen, however, 
 that both his duties and his liabilities are of a more extensive 
 character than are those simply of a sheriff who levies an execu- 
 tion. The receiver may be either plaintiff or defendant in a suit, 
 but except for the statute in Virginia,^ he must sue only by 
 leave of the court ; and in making a defence he should obtain 
 authority so to do from the same source.* He cannot, however, 
 sue in a foreign jurisdiction with such leave,' except that some- 
 times his right to do so is admitted as a matter of courtesy.* He 
 cannot, without leave of the court, pay a debt as garnishee, nor 
 can a judgment be rendered against him as such ; ^ nor can the 
 property under his control be attached, even when it is in another 
 State than that from whose court he has received his appointment.' 
 His appearance as defendant is a waiver of the leave of court,' 
 and the rule requiring permission to be sued does not apply to 
 
 * In re Rachel Colvin, 3 Md. Chy. Dec. 302; Davis, Adm'r for, &c. v. Snead, et 
 al, 33 Grat. 709, 710. 
 
 * High on Receivers, ? 1, 2. 
 
 ' Act of May 10, 1887, Acts 1887, p. 231. 
 
 *High on Receivers, § 261; Davis, Adm'r for, &c. v. Snead etal, 33 Grat. 709, 
 710; Barton «. Barbour, 104 U. S. R. 126; Malendy & Russell v. Barbour, 78 Va. 
 544; Blair, Com., u. Core, 20 W. Va. 265; Reed v. Axtell & Myers, 84 Va. 231; 
 Reynolds, Ex'or, v. Pettyjohn, 79 Va. 327. What regarded as sufficient instruc- 
 tions to sue. Elliot V. Trahern, 35 W. Va. 634. He is liable for the negligence 
 of his agents in operating a, road. Little v. Dusenberry, 46 N. J. Law, 614; 50 
 Am. R. 445; Am. & Eng. Encyc. of Law, Vol. 20, p. 378. 
 
 ' Booth V. Clark, 17 How. 322. 
 
 * High on Receivers, J 242. 
 
 ' People ex rel Tremper v. Brooks, 40 Mich. 333; 29 Am. R. 534. 
 "Pond v. Cooke, 45 Conn. 126; 29 Am. R. 668; Crapo v. Kelly, 16 Wall. 610; 
 WiUitts t;. Waite, 25 N. Y. 577. 
 
 * High on Receivers, § 261. 
 
524 RECEIVERS. § 148 
 
 any case in which the person or corporation whose property was 
 placed in the hands of the receiver had no title to the property 
 which is the subject of the suit.^ 
 
 As to his defences, the receiver has this advantage, that his 
 possession is that of the court ; and without its authority, except 
 in the instances just mentioned, he cannot be disturbed in the 
 control or possession of property committed to his custody, even 
 by an ejectment under an adverse title. In such cases the party 
 making the claim must apply to the court which appointed the 
 receiver, and it will determine whether or not a suit must be 
 brought to determine the rights of the claimant.^ Where prop- 
 erty to which the receiver is entitled is in the possession of a third 
 person, and where persons have been directed to deliver over 
 property to the custody of the receiver, he is not justified in re- 
 sorting to violence to obtain possession thereof, but the proper way 
 for him to proceed is either by suit in the ordinary way,' or by 
 making the third person a party to the suit, if that may properly 
 be done, and thus compelling the delivery of the property by 
 process of contempt.* 
 
 In respect to the distribution of the fund, the receiver has no 
 discretion, but must pay the same to whomsoever he is ordered by 
 the decree of the court ; ° and his decision upon the validity of a 
 claim presented tp him is not final, but may be passed on by the 
 court. ^ 
 
 A receiver is vested with a general discretion in the manage- 
 ment of the property over which he is appointed, and if he acts 
 
 ' Hills V. Parker, 111 Mass. 508; 15 Am. K. 63. 
 
 ^ Story's Equity Jurisprudence, § 833 a. 
 
 = Boyle V. Townes, 9 Leigh, 158. The pleadings must show the court's consent 
 for him to sue. High on Receivers, § 201; Ibid., I 231 to § 238. 
 
 * Story's Eq. Jurisprudence, 5 833 b, and note. 
 
 6 High on Beceivers, l 175; Beverley v. Brooks, 4 Grat. 208. Such an order is 
 regarded as a judgment or decree bindmg his estate (Crawford v. Pickey, 41 W. 
 Va. 544), but is not to be docketed as such in Virginia unless the clerk be spe- 
 cially required so to do. Code, § 3559. 
 
 " Bank of Bethel v. Pahquioque Bank, 14 Wall. 383. 
 
§ 148 RIGHTS, DUTIES, AND LIABILITIES OF RECEIVER. 525 
 
 in good faith, and without prejudice to the rights of the parties 
 in interest, his action will be sustained by the court/ 
 
 The receiver's discretion in this and other respects may be 
 defined in general terms to extend to such subjects, and to be 
 exercised in such way as cannot properly be reached by express 
 orders of the court ; and one of the principal reasons for appoint- 
 ing a receiver is that the court must rely upon the judgment of 
 some one to do that which in the nature of things the court itself 
 cannot do. As it is in the power of the court itself to order such 
 things, the receiver will not be allowed to exercise his discretion 
 in the distribution of the funds ; in settling demands against the 
 estate ; to make more than ordinary repairs without leave ; ^ to 
 enter into agreements except subject to the approval of the court ; ' 
 or to make sales except as the court or the law directs ; and at 
 such sale he cannot purchase.* 
 
 The receiver may from time to time apply to the court for in- 
 structions as to his duties in matters over which he would ordi- 
 narily be entitled to exercise his discretion, and the application 
 may be made ex parte, although it is deemed the better practice 
 to give notice to all the parties interested in the fund." In giving 
 such instructions, the court may clothe the receiver with very 
 large powers over the subject involved in the suit.' 
 
 The receiver may employ counsel on his own behalf, and to rep- 
 resent him in such suits as he may bring or defend,^ and the coun- 
 
 ' Adams v. Haskel, 6 Cal. 475; High on Eeoeivers, § 176. A foreign receiver 
 will not be permitted to remove property out of the State to the detriment of resi- 
 dent creditors, unless in the case of a receiver for a partnership he first shows that 
 the firm is insolvent and that the funds are necessary to satisfy demands against 
 the same independent of any claim thereto of the debtor partner. Grogan v. Eg- 
 bert, W. Va. ; 28 S. E. K. 714. 
 
 2 Daniel's Chy. Pr., Vol. 2, p. 1750; High on Eeoeivers, ? 180. 
 
 ' High on Beceivers, § 186. 
 
 *High on Eeoeivers, li 192, 193. 
 
 5 High on Eeceivers, U 181, 188. 
 
 « Davis V. Gray, 16 Wall. 203. 
 
 ' High on Eeceivers, § 188. 
 
526 EECEIVBRS. § 148 
 
 sel will be compensated for their services out of the fund.' The 
 usual and better practice is, however, to obtain the leave of the 
 court for the employment of counsel and for the compensation. 
 
 He may receive and receipt for debts which are due, or which 
 may become due,^ and when the appointment is over the rents and 
 profits of real estate, if there are tenants in possession they are 
 compelled to attorn,' and the receiver may collect from them the 
 rents which are due as well as such as may become due.* In the 
 case of rents, one exception is said to exist to the rule refusing 
 the receiver the right to sue without the leave of the court ; for it 
 is said that the practice is for the receiver to distrain at his own 
 discretion for rent in arrears within the year, but if in arrear for 
 more than a year, an order is said to be necessary ; and' the same 
 distinction is said to exist in leases made by the receiver.^ 
 
 The receiver must take vouchers for his payments, like any 
 other fiduciary, and his accounts are settled on the same principles 
 that govern all accounting parties." He will also be held respon- 
 sible for all losses to the fund or property which arise from his 
 wilful default ; but where he deposits money in bank unmixed 
 with his own, under circumstances in which they could not properly 
 have been paid into court, and the bank fails, he will not be held 
 responsible.'^ 
 
 An order appointing a receiver cannot be impeached collaterally, 
 and in suits or actions instituted by him he occupies substantially 
 the same relation which was occupied by the original parties against 
 
 'Guy et ah v. Globe Ins. Co., Va. Law Journal, 1880, p. 309; Am. & Eng. 
 Encyc. of Law, Vol. 20, p. 189; Stuart v. Boulware, 133 U. S. E. 78. The courts 
 have, however, given very distinct warnings against the allowance of excessive 
 compensation. Trustees v. Greenough, 105 U. S. R. 527. Fowler v. Lewis 36 W. 
 Va. 154; Crumlish v. Shend. V. E. E. Co., 40 W. Va. 627. 
 
 ^ High on Receivers, ^ 189. 
 
 ' Story's Equity Jurisprudence, I 833. 
 
 * Smith V. Butcher, 28 Grat. 144. 
 
 s Daniel's Chy. Pr., Vol. 2, p. 1749. 
 
 « Daniel's Chy. Pr., Vol. 2, p. 1751. 
 
 ^ Ibid. See also Pidgeon v. Williams' Adm'r, 21 Grat. 251: Barton v. Eidge- 
 way, 92 Va. 162. " 
 
§ 148 EIGHTS, DUTIES, AND LIABILITIES OF EECBIVEE. 527 
 
 whom or over whose estate he was appointed. All defences, there- 
 fore, which might have been made to an action brought by the 
 original party are equally available when the action is by the re- 
 ceiver ; ^ and in furtherance of this principle it has been held, that 
 a receiver operating a railroad is answerable in his official capacity 
 for an injury to a servant employed on the railroad, due to the 
 negligence of the receiver, or of his agents in position superior to 
 that of the servant. In determining the receiver's liability, and 
 the servant's right to recover, the same rules are to be observed as 
 would be applicable were the company exercising the same powers 
 of operating the road.^ The earnings of a railroad in the hands 
 of a receiver, are chargeable with the value of goods lost in trans- 
 portation, and with damages done to property during the manage- 
 ment by him.' 
 
 Where a receiver is directed to make a sale, the authority to sell 
 necessarily carries with it authority to give the purchaser the usual 
 evidence of a transfer of title, the power of the receiver to give 
 the deed being implied from the order of sale. The purchaser in 
 such case is not bound to examine all the proceedings in the cause 
 in which the receiver is appointed ; it is sufficient for him to see 
 that there is a suit in equity, or was one in which the court ap- 
 pointed a receiver of property ; that such receiver was authorized 
 by the court to sell the property ; that a sale was made under such 
 authority ; that the sale was confirmed by the court, and that the 
 deed accurately recites the property or interest thus sold. If the 
 title to the property was vested in the receiver by the order of the 
 court, it in that case passes to the purchaser, and he is not bound 
 to inquire whether any errors intervened in the action of the court, 
 or irregularities were committed by the receiver in the sale.* But 
 the rule caveat emptor applies to a purchaser at a judicial sale, and 
 
 ^ High on Beceivers, § 205. 
 
 ' Meara's Adm'r v. Holbrook et cd, 20 Ohio, 137; 5 Am. R. 633. 
 ' Cowdrey et ah v. Galveston, &c. E. R. Co., 93 U. S. 353. 
 « Koontz V. Northern Bank, 16 Wall. 196. 
 
628 EECEIVEKS. § 148 
 
 where such a purchaser failed to comply punctually with the terms, 
 and was granted an extension of time by the court, the property 
 in the meantime remaining in the possession of the receiver, he 
 was held not to be entitled to any of the earnings of the property 
 while it so remained in the possession of the latter, nor was he in 
 a position to question the order of the court as to this application 
 of the fund.* 
 
 A receiver, like any other fiduciary, cannot purchase at his own 
 sale ; ^ and where there is more than one receiver, each is liable for 
 the malfeasance of the others to the same extent, and under the 
 same circumstances, that trustees are liable.' 
 
 The receiver is usually required to execute a bond before he 
 enters upon the discharge of his duties,* and the amount and con- 
 ditions of the security therefor are determined by the court making 
 the appointment, due regard being had to the value of the property 
 or fund entrusted to the receiver,^ the ordinary penalty being double 
 the sum of money or value of movable property that will proba- 
 bly be in his hands at any one time. Until the receiver gives 
 bond he is no receiver and has no title whatever to act as such.^ 
 His compensation is largely a matter in the discretion of the court, 
 sometimes consisting of a salary, and sometimes a commission on 
 the money handled by him. The court will also allow payments 
 beyond his salary for any extraordinary trouble or expense to which 
 the receiver is put in the performance of his duties, or in prose- 
 cuting or defending any legal proceedings brought by or against 
 him.'' 
 
 ' Osterberg v. Union Trust Co., 93 tJ. S. 424. 
 
 ' L. Cas. in Eq., Vol. 1, Pt. 1, pp. 215, 251. 
 
 ^Ibid., Vol. 2, Pt. 2, p. 1793. 
 
 * Carper v. Hawkins, 8 W. Va. 292. 
 
 ^ High on Receivers, § 118. 
 
 « Donahue v. Fackler, 21 W. Va. 124; High on Eeceivers, | 121 ; 20 Am. & Eng. 
 Encyc. of Law, 162; Crumlish's Adm'r v. Shend. Valley K. E. Co., 40 W. Va. 
 627; Lloyd v. Erwin's Adm'r, 29 Grat. 602; Beach on Eeceivers, § 172; Gluck & 
 Becker on Eeceivers, 36. See also Reynolds, Ex' or, v. Pettyjohn, 79 Va. 327. 
 
 'Daniel's Chy. Pr., Vol. 2, p. 1747. 
 
§ 149 WHO SHOULD BE APPOINTED REOEIVEES. 529 
 
 Who should be Appointed Receivers. 
 
 § 149. The selection of the proper person to be appointed re- 
 ceiver is very much a matter of the court's discretion, and will 
 very rarely be interfered with by an appellate court.^ 
 
 He should be an indifferent person between the parties,^ and it 
 is exceedingly objectionable that he should be in the interest of the 
 defendant against whom the appointment is made ; nor should he 
 properly be a relative of the defendant.^ In cases of partnerships, 
 however, it is not mioommon that one of the partners should be 
 selected, provided there are no charges and countercharges, and 
 no conflict of interests and rights.^ Where a railroad is placed in 
 the hands of a receiver, an officer of the company is quite fre- 
 quently appointed receiver, upon the ground that he is best ac- 
 quainted with the affairs of the road, and hence best qualified to 
 perform the duties of the office. If, however, the necessity for 
 the appointment has been caused by the mismanagement of the 
 officer, he would not of course be selected as the receiver.^ 
 
 Trustees cannot usually be appointed, for it may be their duty 
 to superintend and watch over the receiver, and in England, when 
 appointed, he is not allowed a salary." So where a surviving part- 
 ner was appointed, at his own instance, receiver of the partner- 
 ship affairs, he was held not to be entitled to compensation as re- 
 ceiver.^ A solicitor in the cause, it is said, should not be appointed 
 receiver,* though one not so engaged is eligible for the place.^ 
 
 It has been held to be objectionable to appoint as receiver a per- 
 
 ' High on Eeceivers, § 65. 
 
 = Daniel's Chy. Pr., Vol. 2, p. 1715. 
 
 ' High on Eeceivers, § 67, 68. 
 
 * Parsons on Partnership, * 317. 
 ^ High on Eeceivers, | 72. 
 
 " Perry on Trusts, Vol. 1, § 432. 
 
 'Barry D. Jones, 11 Heisk. 206; 27 Am. E. 742; 2 Daniel's Chy. Pr., p. 1732. 
 
 * 2 Daniel's Chy. Pr., p. 1733. Counsel in the cause may be appointed receiver. 
 Shannon v. Hanks, 88 Va. 338. 
 
 ' High on Eeceivers, I 68. 
 
 34 
 
530 BECEIVEES. § 150 
 
 son who resided at a distance from the estate/ or any person whose 
 duty it is to call the receiver to account. Hence, the appointment 
 of a master .in chancery, an executor,^ or a next friend,^ and a clerk 
 of the court,* have all been held to be objectionable. 
 
 A corporation has sometimes been appointed receiver of another 
 insolvent corporation.^ 
 
 The appointment may be made either in term or vacation, and 
 any party to the proceeding may propose the person to be ap- 
 pointed, although a stranger cannot do so. Other things being 
 equal, the person proposed by the party having the conduct of the 
 proceedings is usually preferred.' 
 
 Receivers of Corporations. 
 
 § 150. It is frequently provided by statute,^ that upon or before 
 the expiration or dissolution of a corporation, the court may ap- 
 point a receiver to take charge of and administer its assets ; but 
 without a statute, such authority exists, and is sometimes exercised 
 by the courts, and in such cases the receiver collects in all the 
 assets of or debts due to the corporation.* The usual rule, how- 
 ever, is that, in the absence of statutes making provision for such 
 cases, the courts will not take from the officers of the corporation 
 the management of its affairs, but, as far as such a remedy is 
 effectual, will control -by injunction any existing or 'attempted 
 misconduct on their part.' 
 
 When the statute authorizes the appointment of a receiver, its 
 terms are construed strictly, and the court takes no more authority 
 
 ' High on Eeceivers, ? 69. 
 ' High on Eeceivers, ? 74. 
 ' High on Eeceivers, J 75. 
 *High on Eeceivers, § 70, 71. 
 ' High on Eeceivers, ^ 70, 71. 
 8 Daniel's Chy. Pr., Vol. 2, p. 1738. 
 ' Such is the case in West Virginia. Code, Ch. 25, ? 58. 
 
 ^Ogilvie et ah v. Knox Ins. Co., 22 How. 380; Hartman et al v. Valley P. Ins. 
 Co., 32 Grat. 242. 
 " High on Receivers, ? 288, 287; Stevens et al v. Davison, 18 Grat. 828. 
 
§ 151 EECEIVEES OP RAILROADS. 531 
 
 than is expressly given. To a bill filed for such a purpose the 
 corporation is an essential party, and the averments of the grounds 
 for the appointment and the affidavits to support them are not 
 sufficient if made in mere general terms, a specification of the 
 facts being deemed necessary.' 
 
 Receivers of Railroads. 
 
 § 151. The general grounds upon which a receiver is appointed 
 to take charge of a railroad are its insolvency, and that the income 
 of the road being required to meet the incumbrances is at the 
 time being so applied as not to reduce them.^ 
 
 But neither insolvency nor default in the payment of interest, 
 as a matter of course, compels the appointment of a receiver ; for 
 that being so largely a matter in the discretion of the court, under 
 all the circumstances, depends upon the safe and prudent manage- 
 ment of the property of the company, and the probability of the 
 interest being speedily liquidated.' " While a court of chancery," 
 said Judge Joynes,* " will be reluctant to appoint a receiver to 
 take charge of and manage a railroad,^ it is competent to do so 
 when such a course is indispensable to secure the rights of the 
 legitimate stockholders and to prevent a failure of justice." 
 
 A receiver may be appointed on the motion of any prior or sub- 
 sequent mortgagee ; ^ and where there are conflicting claimants of 
 a trust-fund, who are prosecuting separate suits in the same court 
 to subject it, the appointment of a receiver in one of the suits, on 
 the motion of the plaintiff in. that suit, will enure to the benefit 
 of the plaintiff in the other suit, upon the establishment of his 
 superior right to the fund.' 
 
 ' Higli on Receivers, §290 to | 296. 
 
 * Eedfield on Eailroads, Vol. 2, p. 396. ^ Ibid., Vol. 2, p. 504. 
 
 * Stevens et cd v. Davison, 18 Grat. 828. 
 
 ' See also EaUroad Company v. Soutter, 2 Wall. 510; High on Eeceivers, S 365 
 to ? 377. 
 
 « Eedfield on Eailroads, Vol. 2, p. 399; Kerr on Eeceivers, 36, 37, 47, 62; High 
 on Eeceivers, § 682, 689. 
 
 ' Beverly v. Brooks et ah, 4 Grat. 187. 
 
532 EECEIVEES. § 151 
 
 The appointment of a receiver does not, of course, change the 
 priority or order of liens, and the net earnings are applicable to 
 operating the road, to the payment of any liabilities incurred while 
 the road is in the receiver's possession, to the costs of the suit, and 
 to the payment of the interest and principal of the mortgages on 
 the road.' 
 
 The modern cases have, moreover, established as a lien upon 
 the net earnings of the road, to the satisfaction of which they are 
 to be applied before the payment of any lien debt, such moneys 
 as may be due to employees, agents, and officers of the road at the 
 time of the appointment of the receiver; and for such current 
 debts for material and supplies as may have been furnished, but 
 which had not been paid for when the court took possession of 
 the road. The principles upon which this allowance has been 
 made have been well stated by Judge Staples in the case of Wil- 
 liamson's Adm'r V. W. C. V. M. & G. S. R. R. Co.; and Abbott 
 Ins. Co. V. 'Same, 33 Grat. 624 ; ^ and they are based upon the 
 view that labor and supplies are really not furnished upon credit 
 
 ' Hale V. Frost, 99 U. S. 389. 
 
 ' See also Duncan & Calhoun, Trustees, v. C. & O. E. K. Co., Am. Law Eegister, 
 July, 1876, p. 434; and Henry Lewis et alsv.Vf.& O. R. E. Co., 83 Va. 246. 
 The conclusions reached in these cases are sustained by the cases of Fosdick v. Carr 
 Company, 99 U. S. 256; Huidekoper v. Locomotive Works, 99 U. S. 258; Hale 
 ti. Frost, 99 U. S. 389. This last case is very briefly reported, but an examination 
 of the original record, and the argument of counsel shows, that while the claim for 
 material furnished for repairs to the road within a short time prior to default in 
 payment of interest was entitled to be paid under the equitable rule, yet material 
 furnished for the construction of an extension of the road does not come within the 
 rule. The fact that a note was given for the account was not held to affect the 
 right. See the ground upon which this doctrine rests in Union Trust Co. v. 
 Souther, 107 U. S. E. 591. The subject is now regulated by statute in Virginia, 
 U 2485, 2486 as amended by act of February 15, 1892, Acts 1891-2, p. 362; and 
 Acts 1895-6, p. 340; Code W. Va., Ch. 75, §? 7, 8. As to who is a "laborer" 
 within the meaning of a provision for the payment of "labor debts," see Brock- 
 way V. Innes, 39 Mich. 47, and the notes to p. 350, 33 Am. E. The rule, as we 
 have discussed it in the text, is, however, applicable to employees, and is not con- 
 fined to laborers. See also 1 Barton's Law Pr., p. 818 et seq. and cases cited. Fi- 
 deHty Ins. &c. Co. v. S. V. E. E. Co., 86 Va. 1; Va. Devel. Co. v. Crozer I. Co., 
 90 Va. 126; 3 Va. Law Eegister, 50, 86, 375, 867. 
 
§ 151 EECEIVEES or RAILROADS. 533 
 
 of the company, but are transactions for which the persons fur- 
 nishing them look to be paid from the current earnings of the 
 road, and which are expected to be paid from the fund which 
 comes daily into the hands of the officers, and hence such a fund 
 constitutes a trust for their benefit. The accumulation of this 
 fund will not be allowed to be stopped or diverted from its just 
 application by the appointment of a receiver, except upon the 
 terms of the lien creditors submitting to the future net earnings 
 being applied to the payment of their claims as preferred debts. 
 Where, however, it appears that credit was really given to the 
 company for either labor or supplies, and an unreasonable time 
 has been suffered to elapse, the creditor will (except where other- 
 wise provided by statute) occupy the ordinary relation of a creditor 
 at large, and there is no trust for his benefit. No exact time dur- 
 ing which debts have been contracted prior to the road going into 
 the hands of the receiver has been fixed by the decided cases, but 
 all of them speak of a reasonable time ; and Judge Drummond, in 
 the case of Turner v. I. B. & I. E. R. Co., decided May 11, 1887, 
 in the circuit court of the United States for the Northern District 
 of Illinois, declares, that while the court will not say that the very 
 moment that the receiver is appointed, or the court has taken pos- 
 session, payment for supplies, wages, etc., will be stopped, yet it 
 will only go back a reasonable, and not an indefinite time. He 
 regarded six months prior to the receiver's appointment as a rea- 
 sonable time ; but in this he merely followed the provisions of the 
 statute of the State of JUinois. 
 
 It has been further held that a court of equity, when it takes 
 charge of a railroad and its appurtenances as a trust fund for the 
 payment of incumbrances, has power to appoint a managing re- 
 ceiver for the property, and for its preservation and management 
 may authorize moneys to be raised, and declare the same charge- 
 able as a paramount lien on the fund.^ 
 
 1 Wallace v. Loomis, 97 U. S. 146; Gibert v. W. 0. V. M. and G. S. E. E. Co., 
 33 Grat. 586. 
 
534 EECEIVEES. § 152 
 
 Receivers of Partnerships. 
 
 § 152. The general and almost universal rule' is, that a re- 
 ceiver cannot be appointed between partners, unless the case en- 
 titles the plaintiff to a dissolution ; ^ but exceptions are said to 
 exist where irreparable injury would arise from delay,' and where 
 a wrong-doing partner seeks to exclude his co-partner from any 
 knowledge of the business, or from any share in its management, 
 in which case the injured partner may have a receiver to take and 
 keep possession of the property until the court determines the 
 rights of the partners, and in the meantime the decree may pro- 
 vide for the continuance of the business.* 
 
 But where a dissolution is prayed in the bill, or is contemplated, 
 or rendered necessary by the case made out, if the partners cannot 
 agree as to the intermediate management whilst the process of dis- 
 solution is going on, a receiver may be appointed to conduct it." 
 Wherever, too, there is proof of insolvency, and that there is good 
 reason for believing that the partnership property has been, or will 
 be, misappropriated, the court may, at the instance of a judgment 
 creditor, award an injunction, and appoint a receiver to wind up 
 the business of the firm.* This will not be done at the instance 
 of a mere creditor at large, for it is essential, unless otherwise pro- 
 vided by statute,^ that the debt shall have been first ascertained by 
 judgment. 
 
 ' Stor/s Equity Jurisprudence, Vol. 1, § 672 a; Story on Partnership, § 229. 
 
 2 Daniel's Chy. Pr., Vol. 2, p. 1727; Pirtle v. Penn, 3 Dana, 247; 28 Am. Dec. 70. 
 
 ^ Adams' Equity, ed. 1859, top. p. 520, note. 
 
 * Parsons on Partnerships, * 313. And a court of equity will enjoin one partner 
 from violating the rights of his co-partner in partnership matters, although no dis- 
 solution of the partnership be contemplated. Marble Co. v. Kipley, 10 Wall. 339; 
 Ante, i 135, Div. 12. 
 
 "Adams' Equity, ed. 1859, top. p. 518. 
 
 « Leading Cases in Equity, Vol. 2, Pt. 1, p. 403. 
 
 ' For the statutory provision in Virginia, see Code, ? 2460 as amended; Acts 
 1893-4, p. 614; Acts 1889-90, p. 73; Ante, p. 291; and see also Flack v. Chanon, 
 29 Md. 311. 
 
§ 152 RECEIVERS OF PARTNERSHIPS. 535 
 
 The insolvency that will justify a proceeding by injunction and 
 the appointment of a receiver, has been held to be only that which 
 is established by a judgment, execution, and the return of nulla 
 bona ; ' the better opinion, however, seems to be that any other 
 sufficient proof may be resorted to to make out a case of insol- 
 vency.^ 
 
 The levy of an execution on the partnership effects for a sepa- 
 rate debt,' has also been held to be a sufficient ground for a bill by 
 
 1 Jones V. Lusk, 2 Metcalf (K7. ), 356. 
 
 = Leading Cases in Equity, Vol. 2, Pt. 1, p. 404. 
 
 » Tiiomson v. Frist, 15 Md. 24; Sanders v. Young, 31 Miss. 111. The rule of 
 priorities is that co-partnership funds are to be applied, in the first place, to the 
 payment of the debts of the firm, and the separate funds of the partners to the 
 payment of their individual debts before paying joint debts out of the same. Eg- 
 berts V. Wood, 3 Paige, 517; Ladd v. Griswold, 46 Am. Dec. 443; 49 Am. Dec; 
 160; note, 163; Pettyjohn's Ex' or v. Woodrufi''8 Ex' or, 86 Va. 478; Eixey, Trus- 
 tee, V. Pearre Bros. & Co., 89 Va. 113; Stone Co. i>. Casey's Adm'r, 42 W. Va. 277. 
 The rule has been repudiated, however, so far as it extends to give an actual prefer- 
 ence to the separate creditors over the separate estate. Adams' Equity, ed. 1859, 
 top p. 517 and note. See also Grosvenor v. Austin's Adm'r, 6 Ohio, 101; 25 Am. 
 Dec. 741, and notes 745. Partnership property cannot be subjected to the separate 
 debts of the partners untU all partnership debts are paid, including debts due from 
 the firm to the partners individually; but the rule does not apply to the case of 
 silent partners. Adams' Equity, pp. 518, 519, note. The partnership creditors, 
 as such, have no lien on the joint effects for their debts; their right is whoUy de- 
 pendent on the lien which the individual partners have upon the joint funds for 
 indemnity against joint debts. Shackelford's Adm'r v. Shackelford et als, 32 Grat. 
 603. Hence the preference does not exist when the partnership is such that the 
 partners, as between themselves, can enforce no such right, or it may be terminated 
 at any time by the acts of the parties, or by a sale of the stock in trade by one 
 partner to another (Leading Cases in Equity, Vol. 2, Pt. 1, p. 405; see also Va. 
 Law Journal, 1879, p. 318, and Case, Eeceiver, v. Beauregard, 99 TJ. S. 119); or by 
 a sale under separate executions of each partner's interests to the same purchaser; 
 nor does this right extend after dissolution and a division of the assets. Adams' 
 Equity, ed. 1859, top pp. 519-520, notes. A dissolution, however, does not defeat 
 this right, nor does the death or retirement of one of the members of the firm. 
 Leading Cases in Equity, Vol. 2, Pt. 1, p. 404. A sale'by a partner, or under an 
 execution against him for his separate debt, does not affect the general rule, but 
 only passes what he has himself; i, c, his share of the assets after the payment of 
 the partnership debts {Ibid., p. 408) ; but as against a general creditor of a solvent 
 partnership, it has been held that one of the firm, with the consent of his co-partners, 
 may, in good faith, make an absolute transfer of the entire partnership assets in 
 payment of his individual debts. Schmidlapp v. Currie, 55 Miss. 597; 30 Am. E. 
 
536 RECEIVERS. § 152 
 
 the co-partners praying for an injunction and the appointment of 
 a receiver to wind up the business of the firm, and distribute the 
 assets among the joint creditors. 
 
 The usual grounds for the appointment of a receiver are, when 
 a dissolution has taken place, is necessary or is intended ;" when 
 one or more of the partners violate express agreements, or articles 
 of partnership, or some obvious and certain duty imposed by law ; 
 when one partner takes possession of the property or works of 
 the partnership, and refuses to admit Ms co-partner to his rights 
 as to the property and the business, or any substantial wrong on 
 the part of a partner, implied or threatened, of such kind that 
 the court can' only prevent it by taking the property and books 
 out of his hands. ^ 
 
 So where partners are wholly unable to agree among themselves 
 as to the disposition and control of the property and business, and 
 neither consents to the possession and control which the other 
 claims, a receiver will be appointed almost as a matter of course 
 and as a first step towards a final settlement of the affairs of the 
 
 530; Id. 533; Binnst). Waddill, 32 Grat. 588; Egberts v. Wood, 24 Am. Dec. 236. 
 See also Motley v. Frank, 87 Va. 432; Patton v. Leftwich, 86 Va. 421. A sm-viv- 
 ing partner may make a general assignment without giving a preference (Salsbury 
 V. Ellison, 7 Colo. 167; 49 Am. K. 347; note 351), and in Virginia it is held that he 
 may give preferences. Patton v. Leftwich, 86 Va. 421. See the conflicting authorities 
 cited in note 4, p. 1159, Am. & Eng. Encyc. of Law, Vol. 17; 2 Barton's Law Pr., 
 p. 874, and notes. Held also that an assignment by one partner only cannot be 
 avoided on that ground when the property has been delivered to the assignee. Hen- 
 nesy v. Western Bank, 9 Watts & Sergeant, 300; 40 Am. Dee. 560; note, p. 565. 
 The rule that separate creditors are entitled to a preference in the administration 
 of the separate estate exists only where the creditors are compelled to resort to a 
 court of equity to get possession of the assets; but when the partnership creditor, 
 by virtue of his judgment or execution, acquires a lien upon the separate estate of 
 a partner, he has attained a legal advantage of which he cannot be deprived by any 
 one having only equal equity with himself. Strauss o. Kingood et al, 21 Grat. 
 586; Morriss v. Morriss, 4 Grat. 293; Bowker v. Smith, 48 N. H. Ill; 2 Am. E. 
 195. A debt due an existing partnership whose afiairs are unsettled, is not subject 
 to attachment at the suit of a creditor of one of the partners. People's Bank v. 
 Shryock, 48 Md. 427. See also Post, ? 187. 
 
 1 Parsons on Partnerships, * 314; Williamson v. Wilson, 1 Bland. 418. 
 
§ 152 EECEIVEES OF PARTNERSHIPS. 537 
 
 partnership.^ But this course is rarely taken by courts of equity 
 unless a case is made out of such gross abuse and misconduct on 
 the part of one partner that a dissolution ought to be decreed, and 
 the affairs of the partnership wound up.^ 
 
 Unless there be a completed partnership, the appointment of a 
 receiver will not be allowed, although in cases of doubt as to the 
 existence of the partnership, if from the affidavits presented upon 
 the application it satisfactorily arppears that there is a partnership, 
 and that the defendant is in possession of most of the assets, deny- 
 ing the other partner access thereto, the court may properly grant 
 the aid of a receiver, although the defendant by affidavit denies 
 the existence of the partnership.' 
 
 Since, however, the object of the appointment of ■& receiver is 
 to preserve the subject so that it may be applied as the rights of 
 the parties may finally determine, if it is apparent that by appoint- 
 ing or continuing a receiver the business will be greatly imperilled, 
 and perhaps ruined, the court will not make the appointment ; or 
 if it has done so, it will modify the order so as to permit the de- 
 fendant in lieu thereof to give security for the payment to the 
 plaintiff of any sum which may be found due him upon a final 
 settlement.* 
 
 The same rules which prevail respecting the appointment of a 
 receiver in a suit between partners are applicable in a suit between 
 the representative of a deceased partner and the surviving partner ; 
 and where all the partnfers are dead, and a suit is instituted betwen 
 their representatives, a receiver will be appointed as a matter of 
 course ; and so where one of the partners became bankrupt a re- 
 ceiver was appointed at the suit of the solvent partner against the 
 assignees.' 
 
 ' Parsons on Partnerships, * 317; Speight v. Peters, 9 GU. 476. 
 » Story on Partnerships, ? 231-330; Daniel's Chy. Pr., Vol. 2, p. 1727 to 1729. 
 » High on Beceivers, ?§ 477, 479. 
 *Ibid., §? 478, 482, 483. 
 
 s Daniel's Chy. Pr., Vol. 2, p. 1729; High on Beceivers, ? 530 to 2 537. See 
 also Shackelford's Adm'r v. Shackelford et ah, 32 Grat. 481. 
 
538 EECErvEES. § 153 
 
 Becdvers for Renting Land. 
 
 § 153. It often happens that in suits for the sale of land, or to 
 subject it to the payment of debts, a decree for sale is necessarily 
 delayed by the condition of the pleadings, or for the purpose of 
 settling the amounts and priorities of debts, and in such cases all 
 that can be done is to put the land into the hands of a receiver, to 
 be rented out by him until the rights of the parties are determined.^ 
 
 This is especially proper when the suit involves a complicated 
 and protracted litigation, and the property will probably be insuf- 
 ficient to pay the debts ; and in such case a receiver may be ap- 
 pointed, either in term or in vacation.^ 
 
 The receiver is entitled to all the rents of the property, as well 
 such as are in arrears as those which subsequently accrue during 
 the continuance of the receivership. The tenants will be required 
 to attorn to the receiver, and after that the receiver may distrain 
 in his own name for rents which accrue during the tenancy, with- 
 out first obtaining an order to do so ; but a distress for rent ac- 
 crued before that time must be made in the name of the person 
 who has the legal right to the rent ; ^ and if he is a party to the 
 suit, or otherwise bound by the proceedings, or if there is any 
 doubt who has the legal right to the rent, an application should be 
 made to the judge at chambers for his directions thereon.* It has 
 been held that a receiver may, without authority of the court, let 
 the property for a year certain or less, and that he may determine 
 tenancies by notice to quit ; ^ but the practice in Virginia is to act 
 
 • Cole's Adm'r v. McEae, 6 Kand. 644. 
 
 » Smith V. butcher, 28 Grat. 150; Grantham v. Lucas, Trustee, 15 W. Va. 455; 
 Astor V. Turner, 11 Paige, 436; 43 Am. Dec. 766; Middleton v. Sdby, 19 W. Va. 
 145; Shannon v. Hanks, 88 Va. 338. It is held to be error to appoint a receiver 
 to take charge of a surety's land before subjecting the lands of the principal debtor, 
 and before taking any steps against the co-surety. Stovall v. Border Grange Bank, 
 78 Va. 188. 
 
 ' But the court may order the receiver to collect the rents in arrears as well as 
 future rents. Smith v. Butcher, 28 Grat. 152. 
 
 * Daniel's Chy. Pr., Vol. 2, p. 1748. ' Ibid., Vol. 2, p. 1749. 
 
§ 154 RECEIVERS OF ESTATES OF INFANTS, ETC. 539 
 
 only upon decrees rendered upon all such matters. Without an 
 order he may keep up ordinary repairs, but he will not at his own 
 discretion be permitted to make any extensive expenditure.' 
 
 Where a fraudulent assignment is alleged, and especially if the 
 assignee is insolvent or the debtor remain in possession of the 
 property, the court will appoint a receiver, unless, indeed, the 
 prima fade case made out by the bill is satisfactorily rebutted by 
 affidavits ; ^ and upon a bill filed by one claiming to be a creditor, 
 if the answer persistently alleges that nothing is due to the plain- 
 tiff, and no other creditor appears in support of the application, or 
 where the court has reasonable grounds to suspect irregularities in 
 the judgment or execution, it will either refuse the application or 
 delay the appointment of the receiver.^ 
 
 The appointment of receivers in cases of assignments is not 
 confined to those of a fraudulent character ; but even where the 
 assignment is valid, a receiver will be appointed when the assignee 
 or trustee refuses to act, or does not act in good faith, in carrying 
 out the terms of the assignment, or when there is danger of the 
 assets being wasted, or diverted from the purposes for which they 
 were assigned.* The appointment of a receiver in any case is, 
 however, a matter in the sound discretion of the court, under all 
 the circumstances; and one will be appointed whenever such a 
 step is necessary for the preservation of the property or the safety 
 of the debt, while the appointment will be denied if the lights of 
 any party are injured thereby. 
 
 Receivers of Estates of Infants, Lunatics, etc. 
 
 § 154. Where a bill was filed by infants agaiqst a guardian for 
 an account and payment, and it was shown in the cause that the 
 guardian was wholly unfit for his office, it was held that the court 
 
 •Daniel's Chy. Pr., Vol. 2, p. 1749. 
 ' High on Keoeivers, ? 411. 
 ' High on Eeceivers, J 433. 
 * High on Eeceivers, | 412. 
 
540 EECEIVEES. § 155 
 
 might appoint a receiver to collect and receive the property of the 
 wards, and the guardian might be required to pay over to him the 
 money of his wards in his hands, and to transfer and deliver to 
 him the property of the infants.' 
 
 The same right has been held to exist in the courts where it is 
 necessary to protect the property of an intestate or testator pend- 
 ing a litigation for the probate of a will or the administration of 
 an estate ; ^ and also in the case of a lunatic where there is no 
 committee.' 
 
 Receivers where there are Trusts. 
 
 § 155. Where trustees, or one of them, have been guilty of 
 misconduct, and the other desires a receiver to be appointed ; 
 where he has wasted or improperly disposed of the estate ; is act- 
 ing with partiality ; is insolvent or bankrupt ; of bad character, 
 drunken habits, or great poverty ; is out of the jurisdiction of the 
 court, or is in any way incapacitated from acting ; where the trus- 
 tees so disagree among themselves that the estate cannot be prop- 
 erly managed ; or where the trustee is a married woman, and her 
 husband is out of the jurisdiction, the court will appoint a re- 
 ceiver, requiring from him security. 
 
 But the court will not take the administration of the trust out 
 of the hands of the trustees upon slight grounds ; and it is not 
 sufficient to justify the appointment that one trustee has disclaimed, 
 another is inactive, and another has gone abroad, if there is still 
 a trustee capable and willing to execute the trust. Nor is it suf- 
 ficient that the trustees are poor, if they are not insolvent ; nor 
 that trustees for sale have let the purchaser into possession before 
 the purchase money is paid. There must be good reason to fear 
 that the property will not be forthcoming at the end of the liti- 
 gation, or the court will not appoint a receiver.* 
 
 ' Sage et al v. Hammonds, 27 Grat. 651. 
 
 * In the matter of Kachel Colvin, 3 Md. Chy. Dec. 278. 
 'Adams' Equity, 622. 
 
 * Perry on Trusts, i 818, 819; High on Eeceivers, ? 639 to J 650; § 693 to § 732. 
 These rules apply in general terms to an executor or administrator. 2 Daniel's 
 
§ 156 EECEIVEES WHERE THERE ARE INJUNCTIONS. 541 
 
 Where there is a second trust or mortgage upon an equity of 
 redemption, it has been held, that as the legal estate is outstand- 
 ing, and the mortgagee of the second mortgage is disabled thereby 
 from obtaining possession at law, a receiver may be appointed 
 unless the prior legal incumbrancer is in possession, or unless the 
 applicant for a receiver will pay off the first demand.' In Vir- 
 ginia, however, it has been decided,^ that where there are conflict- 
 ing claimants to a trust fund, who are prosecuting separate suits 
 in the same court to subject it, the appointment of a receiver in 
 one of the suits, on the motion of the plaintiff in that suit, will 
 enure to the benefit of the plaintiff in the other suit, upon the 
 establishment of his superior right to the fund. The accuracy of 
 this view has been assailed, and it is said to be clearly opposed to 
 the English rule that the appointment of a receiver in behalf of a 
 junior incumbrancer is always without prejudice to the rights of 
 an elder mortgagee.^ 
 
 Receivers where there are Injunctions. 
 
 § 156. Notwithstanding the resemblance between the remedy 
 by injunction and that by the appointment of a receiver, it does 
 not follow that because an injunction is granted, a receiver may be 
 appointed ; and the application for a receiver may be refused, 
 although it be wholly proper to grant an injunction.* Both, how- 
 ever, may very properly exist at one and the same time ; and it is 
 very frequently necessary when a receiver is appointed that an 
 injunction order should be granted, and that the order may be 
 modified or enlarged from time to time as the general necessities 
 
 Chy. Pr., 1722, 1723. An insane trustee cannot act. Bailey, &o. v. HUl et ah, 
 77 Va. 492. The trustee may be required to give bond. Code, H 3420, 3421. 
 But under the statute of West Virginia (Code, Ch. 72, I 6) the trustee need not 
 give bond before advertising and selling the property unless he is required so to do 
 by the grantor in the trust deed or by some cestui que trust. Thompson v. Halstead, 
 W. Va.; 29 S. E. E. 991. 
 
 ' Adams' Equity, p. 312. 
 
 ' Beverly v. Brooke et ah, 4 Grat. 187. 
 
 ^ High on Beceivers, § 689. * High on Eeceivers, I 16. 
 
542 RECEIVERS. § 157 
 
 of the case or the protection of the receiver's possession may ren- 
 der necessary.^ 
 
 The Discharge of a Receiver. 
 
 § 157. As a receiver is appointed for the benefit of all parties 
 interested, he will not be discharged upon the application of one 
 party, although he is the party that applied for the appointment ; " 
 but the discharge, like the appointment, is a matter resting in the 
 sound discretion of the court. Where, however, the amount due in 
 a suit had been finally passed on, and the rights of the mortgagee 
 had been settled and fixed, it was held to be error, for which the 
 supreme court reversed the court below, to refuse to discharge the 
 receiver.^ When the statute of the State made no provision for 
 appeals from orders discharging receivers, it was regarded as a 
 matter of doubt whether a party in interest could appeal from 
 such an order ; but it was considered as beyond doubt that the 
 receiver himself was entitled to no such appeal.* 
 
 A receiver will be discharged upon his own application, for 
 good cause, such as bad health, etc., and upon the application of 
 any party interested, when he becomes bankrupt, or when the 
 necessity for his continuance ceases. He will be required to settle 
 his accounts ; but when entitled to a discharge, he will also be al- 
 lowed the cost of it, to be charged to the fund in the suit.* 
 
 The end of the litigation usually terminates also the functions 
 of the receiver ; but it is not always so, for even after final decree, 
 the court may, upon sufficient cause shown, either discharge or 
 continue him, and he will be always held amenable to the court 
 until he has settled his accounts, and finally disposed of the fund 
 as the court may direct.* 
 
 1 High on Eeoeivers, ? 737 to ? 748. The appointment may be necessary pend- 
 ing an appeal. Moran v. Johnston el al, 26 Grat. 108. 
 
 2 Perry on Trusts, J 820. 
 
 3 Kailroad Co. v. Soutter, 2 Wall. 510. 
 
 * In the matter of Eachel Colvin, 3 Md. Chy. Dec. 279. See also Colgate v. 
 Michigan Lake Shore E. E. Co., 28 Mich. 288. 
 5 High on Eeceivers, J 832 et seq. « High on Eeoeivers, ? 833 to J 835. 
 
CHAPTER X. 
 
 EEMEDIES PROVIDED BY STATUTE. 
 
 2 158. Belief against Fraudulent and 
 Void Conveyances. 
 
 § 159. Voluntary Conveyances. 
 
 J 160. Conveyances Executed with 
 Fraudulent Intent. 
 
 I 161. Deeds Fraudulent per se. 
 
 I 162. The Evidence of Fraud. 
 
 I 163. Effect of Voidable Deeds on Cred- 
 itors. 
 
 § 164. Effect of Fraudulent Deeds upon 
 Purchasers. 
 
 g 165. Belief against Sales of Exempt 
 Property. 
 
 § 166. Mechanics' and Crop Liens. 
 
 § 167. Eemedies against Corporations or 
 Public Works. 
 
 § 168. Belief against Usurious Transac- 
 tions. 
 
 § 169. Belief against Gambling Transac- 
 tions. 
 
 J 170. Sale of Estate of Persons under a 
 Disability. 
 
 ? 171. Awards. 
 
 § 172. Devisaidt vel non. 
 
 Relief against Fraudulent and Void Conveyances. 
 
 § 158. It is provided by statute/ that any creditor, before ob- 
 taining a judgment or decree for his claim, whether such claim be 
 due and payable or not, may institute any suit to avoid a gift, con- 
 veyance, assignment or transfer of, or charge upon, the estate of 
 his debtor, which he might institute after obtaining such judgment 
 or decree ; and he may in such suit have all the relief in respect 
 to said estate which he would be entitled to after obtaining a judg- 
 ment or decree for the claim which he may be entitled to recover. 
 
 And the statute further provides that a creditor availing him- 
 self of this section shall have a lien from the time of bringing his 
 suit on all the estate, real and personal, mentioned in §§ 2458, 
 2459, and that a petitioning creditor shall be entitled to a like 
 lien ^ from the time of filing his petition in the court or in the 
 
 ^ ? 2460, as amended by act of March 2, 1894, Acts 1893-4, p. 614; and Acts 
 1889-90, p. 73; Ante, p. 291; Code of W. Va., Ch. 133, ? 2. Statute of West 
 Virginia only contains what is stated in paragraph one of the text, omitting also 
 the provision for a case when the debt is not due. 
 
 " But only upon the property conveyed. Davis v. Bonney, 89 Va. 755. 
 
544 REMEDIES PROVIDED BY STATUTE. § 158 
 
 clerk's office of the court in which the suit is brought ; but such 
 lien shall not be valid against creditors and purchasers for valuable 
 consideration without notice until and except from the time a memo- 
 randum setting forth the title of the cause, the general objects 
 thereof, the court wherein it is pending, the amount of the claim 
 asserted by the complainant, a description of the property and the 
 name of the person whose estate is intended to be affected thereby, 
 shall be left with the clerk of the court of the county or corpora- 
 tion wherein the property is, who shall forthwith record the said 
 memorandum in the deed-book, and index the same in the name 
 of the person aforesaid. 
 
 The statute further provides, that if the proceeds of sale be in- 
 sufficient to satisfy the claims of all the creditors whose liens 
 were acquired on the same day, they shall be applied ratably to 
 such claims. And, in any such case, if the gift, deed, assignment, 
 transfer or charge be declared void, the court may make a decree 
 against the debtor in favor of any creditor whose claim shall have 
 been proved in the suit, for the amount of such claim, or for the 
 balance due thereon, after applying thereto the share of the pro- 
 ceeds of the sale of the estate to which such creditor may be en- 
 entitled.' 
 
 The statute was first reported by the revisors of 1849,^ and as 
 reported by them, provided that the plaintiff might have an in- 
 junction, receiver or other remedy before, as he could have after 
 judgment or decree ; but the section was enacted as it now stands. 
 
 Before its enactment, it had been held that a creditor could not 
 have the aid of a court of equity to prevent or interfere in any 
 way with the disposition which his debtor might make of his 
 property, unless the creditor had first proceeded as far as he could 
 
 ' The statute does not entitle the creditor suing under it, on showing the inva- 
 lidity of a debt secured by a trust deed for creditors, to have his debt substituted 
 therefor, and his lien declared prior to the liens of other creditors included in the 
 deed, where liens attached when the decree was made. Craig v. Hoge, 95 Va. 275; 
 Zell Guano Co. v. Heatherly, 38 W. Va. 410. 
 
 2 Bep. of Kev., p. 879. 
 
§ 158 RELIEF AGAINST FRAUDULENT CONVEYANCES. 545 
 
 at law ; that is, to subject real estate, he must have had a judg- 
 ment at law, and to subject personal property he must have had a 
 judgment and execution.^ 
 
 The statute has, however, made a great change in this respect ; 
 and it is now competent to a creditor, or creditors at large, to file 
 a bill to set aside a fraudulent deed, and for other creditors to 
 come in by petition, or before a commissioner to whom the cause 
 may be referred, for the purpose of auditing the debts. When 
 this was done, and it appeared that there were judgments against 
 the debtor before and after the fraudulent deed was made, and 
 that the debtor died before all the creditors came in, it was held 
 before the present statute that the order of liens among them was 
 as follows : first, the judgment recovered before the deed was 
 made ; second, the judgment recovered before the bill was filed ; 
 third, the creditors at large who joined in the bill ; fourth, the 
 creditors who came in before the debtor's death ; fifth, all other 
 creditors pro rata} But, as we have seen, all this is now settled 
 by statute in Virginia. 
 
 The fact that the statute gives a creditor who has not obtained 
 a judgment or sued out an execution the right to set aside a fraudu- 
 lent or voluntary conveyance, does not exclude creditors who have 
 
 * Chamberlayne et ah v. Temple, 2 Kand. 384; Rhodes v. Cousins, 6 Rand. 188; 
 Coleman v. Cocke, 6 Rand. 618; Tate v. Liggett, &c., 2 Leigh, 84; Kelso v. 
 Blackburn, 3 Leigh, 299; McCuUough al als v. Sommerville, 8 Leigh, 416; Bump 
 on Fraudulent Conveyances, p. 521; Matthews' Digest, Vol. 1, p. 269; Tucker's 
 Com., Vol. 2, p. 382; Cropper v. Burton et als, 5 Leigh, 426. A foreign judg- 
 ment was held to be a, debt upon which a suit might be brought to set aside a 
 voluntary conveyance, without first obtaining a judgment on it in the State. 
 Watkins v. Wortman, 19 W. Va. 78. The rule of the statute is not followed in 
 the United States courts, and there judgment at law or decree in chancery for the 
 debt must first be obtained. Cates v. Allen, 149 IT. S. R. 451. 
 
 ' Wallace's Adm'r et ah v. Treakle et ah, 27 Grat. 479; Guggenheimer v. Lock- 
 ridge, 39 W. Va. 457. In Illinois (Rappleye v. International Bank, Va. Law 
 Journal, 1880, p. 307), it was held that the creditor who, by the aid of a court of 
 equity, first discovers property of his debtor fraudulently conveyed, is thereby 
 - entitted to priority even over prior judgments. It does not appear that there is in 
 Illinois a statute like that in Virginia. See also Day et at v. Washburn et al, 24 
 Howard, 352; Birely's Ex'ors v. Staley, Gill. & John. 432; 25 Am. Dec 303. 
 35 
 
546 EEMEDIES PROVIDED BY STATUTE. § 158 
 
 proceeded in whole or in part to exercise their remedies at law ; 
 and hence it was held that a creditor who had obtained a judg- 
 ment, but had not sued out an execution, might file a bill to set 
 aside a voluntary conveyance of jjersonal property, and to have 
 the same sold and subjected to the payment of his debt.' 
 
 So where the debtor went into bankruptcy, and was discharged,^ 
 a creditor who had not proved his debt in the proceedings in 
 bankruptcy, was permitted under the statute to file his bill to set 
 aside a fraudulent conveyance made by the bankrupt, and to im- 
 peach his discharge on the ground of fraud, or a wilful conceal- 
 ment of his property, without having first recovered a judgment 
 against the bankrupt.' Nor does it make any difference that the 
 grantor in the deed is dead at the time the bill is filed,* although 
 the administrator of the grantor cannot avoid it at his own suit ° 
 unless he is also a creditor.^ 
 
 We have observed that two or more creditors may unite in filing 
 a bill to set aside a fraudulent conveyance ; it is further true that 
 such a bill may be in the shape of a general creditor's suit ; and 
 it has been held that it is not multifarious to impeach two separate 
 conveyances made by the debtor to different persons.' 
 
 ' Russell V. Eandolph et ah, 26 Grat. 705. 
 
 ' But unless there haa been a discharge, the assignee and not the creditor is the 
 proper party to attack the fraudulent conveyance. Trimble v. Woodhead et al, 
 Va. Law Journal, 1881, p. 232. 
 
 » Tichenor v. Allen, 13 Grat. 15. 
 
 * King's Ex' or et al v. Malone et als, 31 Grat. 158; Nulton et afe v. Isaacs et ah, 
 30 Grat. 726. As to the right to set aside a fraudulent conveyance and the effect 
 on property conveyed after the death of the grantor, see Kent v. Lyon, 4 Florida, 
 474; 56 Am. Dec. 404; Snodgrass „. Andrews, 30 Miss. 472; 64 Am. Dec. 169; 
 note, p. 175. 
 
 ' Davis V. Swanson, 54 Ala. 277; 25 Am. E. 678. But see Am. L. Gas., VoL 
 1, p. 48. 
 
 ^ Thomas f. Soper, 5 Munf. 28; Shield's Adm'r v. Anderson's Adm'r, &c., 3 
 Leigh, 729. 
 
 'Nulton et als v. Isaacs et ah, 30 Grat. 726; Waller v. Todd, 3 Dana, 503; 28 
 Am. Dec. 169. An assignee may sue to set aside a prior fraudulent transfer by his 
 assignor. Pillsbury v. Kingon, 33 N. J. Eq. 287; 36 Am. R. 556. A personal 
 representative cannot impeach a voluntary assignment of his decedent of a chose 
 in action as in fraud of his creditors, but he may recover as assets of the estate, 
 
§ 158 BELIEF AGAINST FRAUDULENT CONVEYANCES. 547 
 
 Where two separate chancery suits are pending, though they may 
 not be consolidated/ yet they may be heard together ; and where 
 three such causes were heard together, each plaintiff was declared 
 to be entitled to a decree for his separate costs.^ 
 
 The statute is very comprehensive in the list of conveyances, 
 transfers, etc., that may be avoided under its provisions ; regard- 
 ing the substance of the transactions more than the form. Hence, 
 not only assignments, deeds, deeds of trust, and direct gifts have 
 been regarded as included in the list, but also declarations in trust,' 
 and homestead deeds fraudulently executed by a householder or 
 head of a family.* 
 
 The rule is, that a deed, although void as to creditors or pur- 
 chasers, is nevertheless good against the grantor ;' but, as we have 
 seen, a judgment rendered after the date of the deed has been held 
 
 the subject of a voluntary assignment wHch was not perfected by his decedent. 
 Spooner'a Adm'r v. Hilbish's Ex' or, 92 Va. 333. 
 
 ^ Claiborne v. Gross, et cds, 7 Leigh, 331. 
 
 ^ Barger v. Buckland et ah, 28 Grat. 850. 
 
 ' Russell V. Eandolph et ah, 26 Grat. 705. 
 
 * Kose V. Sharpless, &c., 33 Grat. 153. Gift by devise is void as against credit- 
 ors and the statute of limitations (i 2929; Code "W. Va., Ch. 104, | 14) does not 
 apply to it. Lewis et ak v. Overby's Adm'r et als, 31 Grat. 601. It was suggested 
 by a writer in the "Virginia Law Journal (1881, p. 603) that the right of a creditor 
 at large to avoid a voluntary or fraudulent conveyance did not apply to an unre- 
 corded deed, assignment, etc. The statute does not seem to permit such a distinc- 
 tion. See 2 Minor's Institutes, 872, and note of editor Va. Law Journal, 1881, p. 
 609. 
 
 6 Springer D. Drosch, 32 Ind. 486; 2 Am. E. 356; 1 Am. L. Cases (ed. 1857), 
 p. 45; Harris v. Harris' Ex' or, 23 Grat. 737. A voluntary deed to a wife is good 
 against the heir for whose support (being an adult) the grantor was not liable. 
 Horder v. Horder, 23 Kans. 391; 33 Am. E. 167; Core v. Cunningham, 27 W. 
 Va. 206; Love v. Tinsley, 32 W. Va. 25. Bank v. Corder, 32 W. Va. 232. It 
 has been held that a voluntary conveyance cannot be avoided by a creditor who 
 could be otherwise paid out of his debtor's estate. Eighleberger v. Kibler, 1 HUl, 
 Ch. 113; 26 Am. Dec. 192. But see contra, 2 Minor's Institutes, p. 607, and Post, 
 p. 549. The rule holding a deed which may be void as to a creditor or purchaser and 
 yet good as to the grantor, finds application in the case of a lien taken by a creditor 
 which has not been or cannot be recorded. At the death of the grantor such a lien 
 (being good against him) remains good against him, and is to be preferred to his 
 general creditors' claims. Dulaney v. Willis, 95 Va. 606. 
 
648 REMEDIES PEOVIDED BY STATUTE. § 158 
 
 to be a lien as of the time it was rendered, when the deed is sub- 
 sequently set aside, and upon such deed being avoided the grantor 
 may still claim, and have allowed to him, the homestead exemp- 
 tion.' Upon the same principle, it has been held that the right of 
 a wife to dower was not released by her joining with her husband 
 in a deed, which was afterwards set aside as fraudulent and void 
 against creditors.^ 
 
 Where the conveyance is set aside the court may decree a sale 
 of the whole land, or so much thereof,' or of the other thing con- 
 veyed, as is necessary for the payment of the debts for which it is 
 liable ; and where a part of the tract of land was in Virginia and 
 a part in West Virginia, it was held that the court in Virginia 
 might decree a sale of the whole tract.^ 
 
 But whatever might have been right in that particular case, 
 which was that of a deed of trust executed upon lands lying in 
 both States, before the division thereof, yet the rule unquestionably 
 is, that the court of one State cannot decree so as to affect land in 
 another State. The court of one State cannot sell or partition 
 land in another State, nor is its judgment or decree a lien upon it." 
 
 Where the suit of the creditor was against the donee, and the 
 personal representative of the donor of goods and chattels, and it 
 appeared that there were other assets sufficient to pay the debts, 
 
 ^ Shipe, Cloud & Co. v. Eepass et ah, 28 Grat. 716; Boynton et ah v. McNeal ti 
 ah, 31 Grat. 456; Kushs v. Hooke, 3 Lea. 302; 31 Am. E. 642; Sears v. Hanks, 
 14 Ohio St. E. 298; McFarland v. Goodman, 6 Bisa. Ill; Wood v. Chambers, 30 
 Texas, 254; Vogler v. Montgomery, 54 Mo. 577; Hugunin v. Dewey, 20 Iowa, 368; 
 Muller V. Indersiden, 79 111. 382; White v. Givens, 29 La. Ann. 571; 30 Am. E. 
 757. Contra, Pifer v. Johnston, 12 Minn. 60; Chambers v. SaUie, 29 Ark. 407; 
 Huey's Appeal, 29 Penn. St. 219; Currier v. Sutherland, 54 N. H. 478. 
 
 » Malloney v. Horan, 49 N. Y. Ill; 10 Am. E. 335; Eidgeway v. Masting, 23 
 Ohio St. E. 294; 13 Am. E. 251; Eichardson v. Wyman, 62 Me. 280; 16 Am. E. 
 459. 
 
 ' Cropper v. Burton et ah, a Leigh, 426. 
 
 • Barger v. Buckland et ah, 28 Grat. 850. For the rule when the assignment is 
 made by a non-resident debtor, see Vamum v. Camp, 1 Green. Law, 326; 25 Am. 
 Dec. 476, 489, note. 
 
 ' Poindexter v. Burwell et ah, 85 Va. 507; Wimer and Wife v. Wimer et ah, 85 
 Va, 901, 
 
§ 159 VOLUNTARY CONVEYANCES. 549 
 
 the conveyance, though voluntary, was held not to be void,* other- 
 wise satisfaction as to the deficiency would be decreed out of prop- 
 erty in the hands of the donee,^ and in such case the donee is not 
 held responsible for the property itself if sold or lost, nor, except 
 in case of actual fraud, is he liable for the rents and profits of it.^ 
 By the statute as it now stands a gift is void as to existing credit- 
 ors, whether sufficient property is or is not retained to satisfy the 
 debts.' 
 
 Voluntary Conveyances. 
 
 § 159. The language of the statute" describing voluntary con- 
 veyances which may be avoided by creditors under the provisions 
 of that section of the Code which we have just been considering, 
 is, " every gift, conveyance, assignment, transfer or charge ^ which 
 is not upon consideration deemed valuable in law or which is upon 
 consideration of marriage." ^ 
 
 The amount of the consideration does not enter into the ques- 
 tion ; * for the courts in determining whether the transaction is a 
 gift or a sale, will not consider whether a party makes a good or a 
 
 ' A trustee who, in good faith, paid out money to discharge a lien on land, was 
 held entitled to retain the land as secui-ity, although the transfer to him was in 
 fraud of creditors, and a decree setting aside a conveyance as fraudulent may pro- 
 vide for the indemnity of an innocent person who has paid oif an incumbrance in 
 good faith. McMeekin v. Edmunds et al, 1 HUl Chy. 288; 26 Am. Dec. 203. 
 
 ' Chamberlayne, &o. v. Temple, 2 Rand. 384; Boyd & Swepson v. Stainback, 5 
 Munf. 305; Huston's Adm'r d. CantrU, 11 Leigh, 137. 
 
 ' Blow V. Maynard, 2 Leigh, 29; Mmor's Institutes, Vol. 2, p. 617. Prof. Minor 
 suggests that in case of fraud the grantee would perhaps be responsible for the prop- 
 erty itself. 
 
 'Minor's Institutes, Vol. 2, p. 607. 
 
 ' i 2459; Code W. Va., Ch. 74, § 2. 
 
 * These words include a hornestead deed fraudulently executed. Rose and Wife 
 V. Sharpless & Son, 33 Grat. 153. 
 
 ' The words ' ' or upon consideration of marriage ' ' were inserted at the revision 
 of 1887, and were intended to meet and overrule the oases of Herring v. Wickham, 
 29 Grat. 628; Triplett v. Romine, 33 Grat. 651, and Qay v. Walter, 79 Va. 92, in 
 which marriage was held to be a valuable consideration to support a conveyance, 
 even against the claims of creditors, but the statute has no application to purchasers, 
 as to whom marriage is a good consideration. 
 
 * Bump on Fraudulent Conveyances, p. 262. 
 
550 REMEDIES PROVIDED BY STATUTE. § 159 
 
 bad sale of his property, although the nature of the alleged bar- 
 gain will largely enter into the discussion when it is claimed that 
 the deed or contract was made in order to hinder, delay, or defraud 
 creditors or purchasers, whether the same be actually or con- 
 structively fraudulent.^ That subject, however, and also the eifect 
 of voluntary and fraudulent deeds upon creditors and purchasers, 
 and the evidence sufficient to sustain these charges, will be hereaf- 
 ter considered.^ It is only designed here to enquire what is a 
 " consideration deemed valuable in law " within the definition given 
 to these words by the decided causes. 
 
 Marriage solemnized after the deed has always been considered 
 a valuable consideration, and this without regard to the indebted- 
 ness pr insolvency of the donor or of the husband, and whether 
 his pecuniary condition was or was not known to the woman ; and 
 even though at the time of the gift the marriage was not contem- 
 plated, provided it occurred before the creditor had a right, by 
 judgment or other specific lien, to charge the subject in the hands 
 of the grantor,^ or though the settlement was fraudulent on the 
 part of the grantor, if there was no fraud on the other side.* The 
 
 ' American Leading Cases, Vol. 1, p. 49. 
 
 " The rule is that the recital of consideration in a deed is not evidence against 
 either a stranger or a creditor, but when the conveyance is once shown to be founded 
 upon a valuable consideration, then the burden of proving that it was frau4ulent 
 in fact rests upon the creditor assailing it. Cohn ^. Ward, 32 W. Va. 34; Rogers 
 V. Verlander, 30 W. Va. 620; Chads u. Hena, 32 W. Va. 67; Himan v. Thorn, 
 32 W. Va. 507; Massey v. Yancey, 90 Va. 626. 
 
 ^Minor's Institutes, Vol. 2, p. 609; Lomax's Digest, Vol. 2, p. 484; Magniac 
 V. Thompson, 7 Pet. 348; Coutts v. Greenhow, 2 Munf. 363; Huston's Adm'ri'. 
 CantrO et al, 11 Leigh, 152, 158, 176, 177; Campion v. Colton, 17 Ves. 271; 
 Bentleyjj. Harris's Adm'r, 2 Grat. 363; Welles ti. Coles, 6 Grat. 645; Fones «. 
 Eice ei ok, 9 Grat. 568; Brown v. Carter, 5 Ves. 862; George v. Milbank, 9 Ves. 
 190; Belts v. Union Bank of Maryland, 1 Harris & Gill. 175, 203; Bradish v. 
 Gibbs, 3 Johns. Chy. B. 523, 550; Herring et ah v. Wickham and Wife, 29 Grat. 
 628; Triplett v. Eomine, 33 Grat. 651; Qay i). Waltei-, 79 Va. 92; Burks v. Brown, 
 2 Hill Chy. 558; 30 Am. Dec. 380; Dugan et als v. Gittings et als, 3 Gill. 138; 43 
 Am. Deo. 306; Satterthwait v. Emley et als, 3 Green. Chy. 489; 43 Am. Dec. 618; 
 Merritt et al v. Scott et al, 6 Ga. 563; 50 Am. Dec. 365; note, 371 to 375; Gurvin 
 V. Cromartie, 11 Iredell's Law, 174; 50 Am. Dec. 406; notej p. 412. 
 
 ■* 1 American Leading Cases, 50. 
 
§ 159 VOLUKTARY CONVEYANCES. 651 
 
 fact that a proposed husband conveys his whole estate does not 
 invalidate the transaction, nor will cohabitation and the birth of 
 children before the marriage avoid the conveyance.^ 
 
 But, as we have seen, all this is changed by statute (§ 2459) in 
 Virginia, and marriage is no longer a valuable consideration as 
 against the claims of existing creditors. 
 
 Such a deed, although void against creditors because not re- 
 corded, was held to be valid between the parties, and this although 
 the marital rights of the husband had attached by an actual re- 
 duction of the property into possession.^ 
 
 The contract was a valid one against creditors if a third person 
 agreed, in the event of a certain marriage, to convey or settle or 
 pay property or money to or for the parties to be married, or to 
 either of them 5 but this was not true where no specific marriage 
 was in contemplation, for a promise made in reference to a future 
 possible state or condition of matrimony was not held to be upon 
 a consideration deemed valuable in law.^ 
 
 ' 1 American Leading Cases, 50. * 
 
 ' Dabney and Wife et al v. Kennedy, 7 Grat. 317. The bond of a man given in 
 contemplation of marriage, conditioned tbat the property of his fnture wife should 
 remain hers, is enforceable in equity as an agreement for her sole and separate use, 
 although it appears that the object of the agreement was to defeat her husband's 
 creditors, and that no trustee was appointed. Baldwin v. Carter, 17 Conn. 201; 42 
 Am. Dec. 735. To invalidate such a settlement it must clearly appear that the 
 woman knew that the intent was fraudulent. Clay et ah v. Walter, &c., 79 Va. 92. 
 
 ' Welles V. Coles et als, 6 Grat. 652. A parol gift of personalty unaccompanied 
 by possession before marriage, but in consideration of which the possession is de- 
 livered after marriage, though valid between the parties and privies to it, and 
 against debts of the father afterwards contracted, was held voluntary and void 
 against pre-existing creditors, and this although the property was delivered before 
 any lien was acquired by the creditors (Hayes v. Jones, 2 P. & H. 583) ; but an 
 exeeuted gift, if a marriage thereafter takes place, even though it was not then in 
 contemplation, is valid in favor of the husband and wife against the creditors of 
 the father (the donor), whether then existing or subsequent, such a gift being re- 
 garded as upon a valuable consideration. Huston's Adm'r v. CantrU et als, 11 
 Leigh, 136. See also Walter v. Todd, 3 Dana, 503; 28 Am. Deo. 94. A gift by 
 a husband "not indebted beyond his power to pay or to embarrassment" to his 
 wife is sustained as valid in West Virginia. Hume v. Condon, W. Va. ; 29 S. E. 
 E. 56; Adams v. Irwin, M. 60. 
 
552 REMEDIES PKOVIDED BY STATUTE. § 159 
 
 The consideration of marriage for a settlement extended to the 
 wife's children by a former marriage, the husband's children by a 
 former marriage, and children of the parties born before the mar- 
 riage ; but it was not permitted to go beyond the immediate objects 
 of the marriage, and to provide for collateral relatives ; the settle- 
 ment as to them not being supported by the marriage was purely 
 voluntary.' 
 
 Before the Virginia statute it was held that if such a settlement 
 is valid when it is made, no subsequent event can alter it.^ A 
 valid settlement might also be made after marriage, in considera- 
 tion of an ante-nuptial contract, and it was good in equity to the 
 extent of the previous agreement.^ But such a contract must 
 have been in writing, and its existence satisfactorily proved by 
 independent evidence, and the recital of it in the deed of settle- 
 ment was not sufficient evidence against creditors.* 
 
 Such an agreement had to be in writing,' and, to be binding upon 
 creditors and purchasers, had to be recorded ; ^ but now, in Vir- 
 ginia, to'meet the decisions' that the registry acts did not apply 
 to a parol contract for the sale of land, and that when a purchaser 
 under such a contract had paid all the purchase money, and had 
 been put in possession, so that he had a valid equitable title to the 
 land, it was not subject to the lien of a judgment subsequently ob- 
 tained against the vendor, the statute^ provides that every such 
 contract, not in writing, made in respect to real estate or goods 
 and chattels, in consideration of marriage, or made for the convey- 
 
 'Bmnp on Fraudulent Conveyances, p. 292; Triplett et ah v. Eomine's Adm'r 
 et als, 33 Grat. 651. 
 
 2 Bump on Fraudulent Conveyancea, p. 292; Tiiplett et als v. Eomine's Adm'r 
 et ah, 33 Grat. 651. 
 
 ' American Leading Cases, Vol. 1, p. 51. 
 
 '■Ibid. 
 
 5 § 2840; Code W. Va., Ch. 98. 
 
 Code 1873, Ch. 114, U 4, 5; U 2463, 2464; Code W. Va., Ch. 74, §J 4, 5. 
 
 'Floyd V. Harding, 28 Grat. 401; Young v. Devries, 31 Grat. 304; Trout v. 
 War\vick, 77 Va. 731; Hurt v. Prillaman, 79 Va. 257; Bowman v. Hicks, 80 Va. 
 806; Powell v. Bell, 81 Va. 222. 
 
 8 i 2463. • 
 
§ 159 VOLUNTAEY CONVEYANCES. 553 
 
 ance or sale of real estate, for a term therein of more than five years, 
 shall be void, both at law and in equity, as to purchasers for valua- 
 ble consideration without notice and creditors. 
 
 Where an ante-nuptial contract was entered into between a hus- 
 band whose domicil was in North Carolina, and a wife whose 
 domicil was in New York, and which was duly registered in New 
 York, but not in North Carolina, it was held good against the 
 creditors of the husband, although the property was removed to 
 North Carolina and changed from what it originally was when the 
 contract was signed.* 
 
 But there may also be valid post-nuptial contracts between a 
 husband and wife which furnish the consideration deemed valuable 
 in law for a conveyance, other than that based upon ante-nuptial 
 contracts.^ Thus, in consideration of a settlement on her, the wife 
 may release her contingent right of dower in the real property of 
 her husband ; and if she makes such relinquishment upon her 
 husband's promise that he will make such a settlement upon her, 
 and he afterwards fulfils the promise, the settlement will be valid 
 against all creditors who have not meanwhile obtained specific liens 
 by judgment or otherwise upon the property conveyed therein. 
 But where the settlement is not cotemporaneous with the relinquish- 
 ment, clear proof must be fiirnished of such prior contract between 
 the husband and wife, and the recital of it in the settlement itself 
 is by no means sufficient for that purpose. On the other hand, a 
 mere promise of the wife to unite with her husband when requested 
 in future conveyances of his land so as thereby to relinquish her 
 dower, constitutes no consideration, for the wife's promise is void.' 
 
 1 Hicks V. Skinner, 71 N. C. 539; 17 Am. E. 16. See also U. S. Bank v. Lee, 
 13 Peters, 107; Smith v. Brace's Adm'r, 3 Harr. & John. 499. 
 
 2 Kesner v. Trigg, 98 U. S. 54; Gosden and Wife v. Tucker's Heirs, 6 Munf. 1; 
 Livingston v. Livingston, 2 Johns. Chy. 537; Bullard v. Briggs, 7 Pick. 533; 
 Kent's Com., Vol. 2, p. 139. 
 
 ' Minor's Institutes, Vol. 2, p. 610; Lomai's Digest, Vol. 2, p. 437; Quarles v. 
 Lao7, 4 Munf. 251; Gosden v. Tucker's Heirs, 6 Munf. 1; Blanton v. Taylor, GUm. 
 209; Harvey v. Alexander, 1 Band. 237; Taylor v. Moore, 2 Band. 563; Blow v. 
 Maynard, 2 Leigh, 29; Lee v. Bank of TJ. S., 9 Leigh, 200; Harrison v. Carroll, 
 
554 REMEDIES PEOVIDED BY STATUTE. § 159 
 
 Such a settlement to be valid must be confined .to something 
 like the value of the dower released ; and if it be beyond that, 
 while it will be sustained to the extent of that value, it will be 
 avoided as to the excess.' In considering, however, what is a 
 proper provision for the Avife in such cases, a court of equity will 
 not enter into a strict calculation of the value of the settlement 
 as compared with the property or interests relinquished. It is 
 sufficient that the provision does not appear to be unreasonably 
 excessive." 
 
 What is an excessive settlement as compared with the wife's 
 right to dower depends upon such circumstances as the relative 
 ages and expectations of life of the husband and wife. A careful 
 table, covering the general rules upon this subject, has been pre- 
 pared by the supreme court of appeals.^ Where the husband was 
 seventy years old and the wife thirty-five, and the property in 
 which the wife released her dower was worth thirty-six thousand 
 six hundred and seventy-five dollars, and that conveyed to her as 
 compensation was valued at twenty-eight thousand three hundred 
 and thirty-one dollars, the settlement was regarded as grossly ex- 
 cessive, and was set aside.^ In another case the husband was forty 
 years old and the wife thirty-five, and in consideration of her 
 uniting in a conveyance of land to the value of twenty-two thou- 
 sand five hundred and ten dollars, in Confederate money, in 
 March, 1862, her husband bought and had conveyed to her and 
 her children land of the value of three thousand two hundred 
 
 11 Leigh, 484; Lewis et ah v. Caperton's Ex. ct ah, 8 Grat. 166; Sykes v. Chad- 
 wick, 18 WaU. 146, 147; Bamett v. Barnett el ah, 37 W. Va. 396; Fink Bros. & 
 Co. II. Denny el ah, 75 Va. 663. In Lewis el als v. Caperton's Ex. et ah, 8 Grat. 
 166, a doubt is expressed whether the relinquishment of the contingent right of 
 dower by uniting in a deed of Irust is a valuable consideration for a settlement; but 
 Prof. Minor (Institutes, Vol. 2, p. 611), in commenting on this suggestion, seems 
 to be of opinion that it is a sufficient consideration to sustain a settlement. 
 
 ' Johnston el ah v. GUI et ah, 27 Grat. 587. 
 
 ' Burwell's Ex' or v. Lumsden et ah, 24 Grat. 446; Sayres v. Wall, 26 Grat. 354; 
 Majors v. Everton, 89 111. 56; 31 Am. E. 65. 
 
 'Wilson V. Davisson, 2 Rob. E. 403; Davis v. Davis, 25 Grat. 587. 
 
 'Davis' Widow v. Davis, &c., 25 Grat. 587. 
 
§ 159 VOLUNTARY CONVEYANCES. 555 
 
 dollars, near Eichmond, in April, 1862. The husband built on 
 the land, but the deed to the trustee was not made until April, 
 1867. According to the tables the value of the contingent right 
 of dower in the tract sold was eight hundred and sixteen dollars, 
 and hence the settlement was regarded as excessive as of the date 
 of the contract. At that date the husband was not seriously in- 
 debted, and such debts as he owed were paid off before April, 
 1867. There being no fraud in the arrangement between the hus- 
 band and the wife, the contract was sustained against all creditors 
 whose debts were contracted since that agreement.^ 
 
 As a general rule, the wife may elect to relinquish a settlement 
 altogether, and be restored to her antecedent claim to dower, unless 
 the rights of innocent purchasers will be thereby compromised.^ 
 
 The release by the wife to her husband or his creditors of her 
 equitable choses in action, constitutes a valuable consideration to the 
 extent of a reasonable settlement,' and his use of her separate 
 estate will also furnish such a valuable consideration, provided 
 either an express promise of repayment is proved, or facts are 
 shown which sufficiently indicate that the husband and wife, as to 
 such separate estate, were dealing with each other as debtor and 
 creditor. Indeed, whether the consideration claimed be a relin- 
 quishment of her equitable choses in action, her contingent right 
 of dower, or the use of her separate estate, none of these will con- 
 stitute a consideration deemed valuable in law sufficient to sustain 
 a settlement upon the wife, unless it be shown that such relinquish- 
 ment or use was accompanied by a promise of repayment, for a 
 mere expectation of recompense will not be sufficient.'' 
 
 ' Payne et ai v. Hutcheson et al, 32 Grat. 812. 
 
 ^ Davis, &c. V. Davis, &c., 25 Grat. 595; Minor's Institutes, Vol. 2, p. 611. 
 
 'Minor" 3 Institutes, Vol. 2, p. 612; Brownings. Headley, 2 Kob. 357; Poindex- 
 ter etux v. Jeffi-ies, &c., 15 Grat. 368; Penn's Adm'r v. Spencer el ah, 17 Grat. 
 92; Gallego v. GaUego, 2 Brock, 285; Wiekes v. Clarke, &c., 8 Paige, 161; Ganet 
 V. Grout, 4 Mete. 486; Smith v. Bradford, 76 Va. 758. 
 
 * Bump on Fraudulent Conveyances, 304; Taylor ». Moore, 2 Band. 563; Lewis 
 V. Caperton, 8 Grat. 148; Harrison v. Carroll, 11 Leigh, 476; W. & M. College v. 
 
556 EEMEDIES PEOVIDED BY STATUTE. § 159 
 
 A deed of separation between a husband and wife, at least where 
 the husband's misconduct entitles the wife to a divorce, coupled 
 with a settlement for her support, will be valid against creditors, 
 as containing a consideration deemed valuable in law ; and a cove- 
 nant by the trustee to indemnify the husband against any claim for 
 alimony, or the debts which the wife may contract after the sepa- 
 ration, is a valuable consideration for a settlement.^ A grave doubt 
 is suggested whether this doctrine is not conned to cases where 
 the husband's misconduct would entitle the wife to a divorce ; ^ but 
 it is given as the better opinion that the covenant of the trustee 
 to indemnify the husband against the wife's maintenance and debts 
 constitutes a valuable consideration for a settlement on her by him, 
 or, at all events, pro tanto.^ 
 
 Services to be rendered in support of the grantor have been 
 held to constitute a valuable consideration for a settlement ; but as 
 'to existing creditors, such a settlement may be avoided, provided 
 they proceed in due time, for if they delay until advances for sup- 
 port have been made in good faith by the grantee, the settlement 
 will be sustained as a valid security to the extent of the advances. 
 In such a case, however, the settlement must not be excessive ; for 
 it will only be sustained againi3t creditors where it is proportionate 
 to the services to be rendered or expenses incurred.* 
 
 Arrears accrued on a voluntary bond have been held to consti- 
 tute a valuable consideration for any other bond or conveyance, 
 and also for a payment of the arrears ; ° and a promise by one 
 
 Powell, 12Grat. 372; Kerburii. Stanafield, 28 Md. 210; Blow!). Maynard, 2 Leigh, 
 29; Campbell v. Bowles, 30 Grat. 663. 
 
 ' Bump on Fraudulent Conveyances, p. 299; Minor's Institutes, Vol. 2, p. 612; 
 Lomax's Digest, Vol. 2, p. 438. ' Bishop on Married Women, g 759, 760. 
 
 'Minor's Institutes, Vol. 2, p. 613; Hargroves v. Moray, 2 HiUEq. 222; Sykes 
 V. Chadwick, 18 WaU. 141; W. & M. College v. PoweU, 12 Grat. 372; Davis v. 
 Davis, 25 Grat. 540. 
 
 * Henderson v. Hunton et ah, 26 Grat. 926. See also Johnston v. Zane's Trus- 
 tee el ofe, 11 Grat. 552; Lester el als v. Lester et ah, 28 Grat. 737. 
 
 'Minor's Institutes, Vol. 2, p. 613; Gilham v. Locke, 9 Ves. 612; Berry Ex 
 parte, 19 Vea. 218; Hopkirk u. Eandolph, 2 Brock, 132; Fones v. Rice, 9 Grat. 
 568; Welles v. Coles, 6 Grat. 645. 
 
§ 159 VOLUNTARY CONVEYANCES. 557 
 
 party, except as qualified in the case of husband and wife, is a good 
 consideration for a promise by another.' 
 
 An antecedent debt is a valuable consideration,^ and so are ser- 
 vices rendered, losses or damages sustained at the request of 
 another,^ and the acceptance of a deed subject to a mortgage, if the 
 mortgage is afterwards actually paid.' 
 
 A promise based upon a moral obligation will also sustain a set- 
 tlement, such as a promise to pay a debt contracted in infancy, or 
 which has become barred by lapse of time or the statute of limi- 
 tations ;'' or of which the debtor has been discharged by a certifi- 
 cate of bankruptcy. ° 
 
 On the other hand, past seduction and past cohabitation do not 
 constitute a valuable consideration,'' and the same is true of any 
 conveyance made upon the consideration of future illicit cohabita- 
 tion.' In respect to these matters the following distinction is 
 drawn by the decided cases : A contract or conveyance in con- 
 sideration of past cohabitation, intended or regarded as reparation 
 or indemnity for the wrong done, is treated at common law as 
 founded on a good consideration. If executory and under seal, 
 the seal conclusively imputing a consideration, it may be enforced ; 
 but if not under seal, or a mere simple contract, the consideration 
 of which may be impeached by plea and evidence, it stands on the 
 eame ground with other contracts or agreements, having only the 
 performance of a natural or moral duty as a consideration to sup- 
 port them." 
 
 ^ Philpot V. Gruninger, 14 Wall. 570. 
 
 2 Crawford v. ELrksey, 55 Ala. 282; 28 Am. K. 704. 
 
 ' Addison on Contracts, Vol. 1, 5 8 to § 13. 
 
 'Miles J'. MUes, 6 Oregon, 267; 25 Am. K. 522. 
 
 " Addison on Contracts, Vol. 1, § 13, note to p. 27, 
 
 "Field's Estate, 2 Eawle, 351; 21 Am. Dec. 454. 
 
 ' Addison on Contracts, Vol. 1, § 13, note to p. 27; Hill v. Freeman, 73 Ala. 200; 
 49 Am. R. 48; note, p. 49. 
 
 « Potter V. Gracie, 58 Ala. 303; 29 Am. E. 750. 
 
 'Ibid.; Story on Contracts, 541; Cliitty on Contracts, 734, 735; Marchioness of 
 Annandale v. Harris, 2 P. Wms. 432; Gray v. Matthias, 5 Vea. 286; Wait v. Day, 
 4 Den. 439; Sherman v. Barrett, 1 McMullan, 147. When a woman married a 
 
558 REMEDIES PROVIDED BY STATUTE. § 159 
 
 In addition to these, there are certain other matters of an illegal 
 character, the existence of which prevents a valid consideration. 
 Of such are considerations in restraint of trade, of the freedom 
 of marriage ; gambling' and usurious contracts ; ^ certain transac- 
 tions made illegal by statute, such as contracts arising from deal- 
 ings with an unchartered bank of circulation,^ or the sale or 
 deputation of a public office.* In the same class may also be 
 included transactions which are fraudulent in intent,' or from 
 which the law conclusively presumes fraud.^ 
 
 A wife's separate earnings^ do not constitute a valuable con- 
 sideration ; ' but where the husband has deserted the wife, or has 
 failed or refused to provide for her, it has been held that her earn- 
 ings afterwards accruing are in equity her separate estate.' 
 
 Property exempt from liability for debt may be the subject of 
 a valid settlement, and it will not be held to be void or fraudulent 
 against creditors if exempt at the time of the conveyance, even 
 though by a subsequent change in the grantor's circumstances he 
 
 man, lived with him and had two children by him and afterwards discovered that 
 he had another wife, an assignment to her was held to he upon a meritorious and 
 moral consideration. Gay v. Parpart, 106 TJ. S. R. 697. 
 
 1 ? 2836; Code W. Va., Ch. 98, | 1; Post, I 169. 
 
 2 1 2818; Code W. Va., Ch. 96, § 5; 1 Barton's Law Pr., p. 547. In spite of 
 the change in the statute declaring that usurious contracts shall be deemed to be 
 for an illegal consideration instead of void, as formerly, a com-t of equity will 
 relieve against a judgment by defa«dt on a usurious contract, and the measure of 
 relief is that the lender can only recover the principal sum loaned or forborne, 
 subject to the rule laid down in Munford v. McVeigh, 92 Va. 446, touching the 
 application of payments. The measure of relief is the same in all cases involving 
 the charge of usury, whether at law or in equity, no matter in which way the 
 question is presented, if the usury be established. Greer v. Hale, 95 Va. 533. 
 
 » I 1182; Code W. Va., Ch. 151, § 14. 
 
 * I 166. 
 
 ' Post, I 160. 
 
 ^Post, ? 161; 2 Minor's Institutes, p. 590 to 600. 
 
 ' Although a husband is in business in his wife's name and with her capital, yet 
 the profits will be justly apportioned between his wife and his existing creditors. 
 Boggen V. Kichards, 39 W. Va. 567. 
 
 « Campbell v. Bowles' Adm'r etah, 30 Grat. 663. But for the effect of the 
 statute, see Post, Vol. 2, g 325. 
 
 ' Bishop on Married Women, I 212, 213, 732. 
 
§ 159 VOLUNTAEY CONVEYANCES. 559 
 
 should become unable himself to hold it as exempt if he had re- 
 tained the property/ or if he should sell or dispose of it.^ 
 
 Any other property of any kind, whether real or personal, may 
 be the subject of a grant or conveyance,^ and it will be good 
 against creditors if founded upon a valuable consideration, and 
 the registration laws^ (where that is requisite) have been complied 
 with. A transfer of tangible personal property, where possession 
 accompanies it,^ or of a chose in action, is not required to be re- 
 corded.* 
 
 Of the assignment of a chose in action, it has been thought a 
 serious question whether a transfer thereof can be made at all ex- 
 
 ' Carhart v. Harsbaw, 45 Wis. 340; 30 Am. B. 756; Bond u. Seymour, 2 Pin. 
 105; Dreutzer v. BeU, 11 Wis. 118; Murphy v. Couch, 24 Wis. 365; Hibben v. 
 Soyer, 33 Wis. 319; Smith v. Eamsey, 33 Mich. 183; Smith v. Allen, 39 Miss. 
 469; Edmonson v. Meaoham, 50 Miss. 34; Duvall v. Rollins, 71 N. C. 218; Dan- 
 forth V. Beattie, 43 Vt. 138; Lishy v. Perry, 6 Bush. 515; Knevan v. Specker, 11 
 Bush. 1; Bears v. Hanks, 14 Ohio St. 298; Mannan v. Merritt, 11 Allen, 582; Cox 
 D. Wilder, 2 Dill, 45; Derby v. Weyrich, 8 Neb. 174; 30 Am. R. 827; Currier v. 
 Sutherland, 54 N. H. 475; 20 Am. E. 143; Dearman i. Dearman, 4 Ala. 521; 
 Planters Bank v. Henderson, 4 Humph. 75; Legro v. Lord, 10 Me. 161; Vaughan 
 V. Thompson, 17 111. 78; Wood v. Chambers, 20 Texas, 247; Garrison v. Monaghan, 
 33 Penli. St. 232. 
 
 ^ Bump on Fraudulent Conveyances, 263, 264; Freeman on Executions, ? 138; 
 Smyth on Homesteads and Exemptions, § 555. But see Allen v. Cook, 26 Barb. 
 374, wherein it was held that if the householder sold his homestead premises, the 
 right of exemption was gone, and the premises liable in the hands of the grantee 
 for all previous liens of judgments secured against the grantor. See also the notes 
 to pp. 150, 151, 20 Am. E. It has also been decided in Virginia that where a 
 householder, or head of a family, executes a homestead deed as a part of and in 
 furtherance of a design to hinder, delay and defraud his creditors in the recovery 
 of their just debts, such a deed will be vitiated and invalidated by such conduct. 
 Rose V. Sharpless & Son, 33 Grat. 153, citing Gilleland v. Rhodes, 34 Penn. St. 
 187; IJiffendefer v. Fisher, 3 Grant's Cases, 30; Smith v. Emerson, 43 Penn. St. 
 456; Strouse v. Becken, 38 Penn. St. 190. Qiuxre, whether there may be a home- 
 stead claimed in a shifting slock of goods f For instance, if a merchant should re- 
 cord a claim of homestead in a stock of goods, and yet continue to sell, buy, and 
 trade with them as if they had not been so set apart for the use of the family of 
 which he is the head. 
 
 » Post, I 302. 
 
 * Post, i 308. 
 
 5 Clark V. Ward et ok, 12 Grat. 440; Stewart v. Piatt, 101 U._S. 731. 
 
 8 Kirkland, Chase & Co. v. Brune et ah, 31 Grat. 126. 
 
560 REMEDIES PROVIDED BY STATUTE. § 160 
 
 cept in writing, unless a valuable consideration is given therefor ; 
 and this without regard to the statute avoiding any such transac- 
 tion as against existing creditors. While it is true that the mere 
 possession of a note or bond is not prima facie proof that it was 
 assigned/ yet the delivery of the instrument by which the debt is 
 secured will amount to an equitable assignment of it if there be 
 proof that it was so intended/ at least if there be a valuable con- 
 sideration therefor;' and where it is claimed by an eminent 
 author* that a valuable consideration seems to be an indispensable 
 element to a valid assignment wh^n the legal title does not pass, 
 the reason given for that view is that an equitable assignment can 
 only be good as an executory contract, and neither law nor equity 
 will enforce an executory contract unless it be sustained by a 
 valuable consideration. The case of Elam v. Keen, 4 Leigh, 333, 
 is cited against this view ; and we think equal, if not stronger, 
 dissenting authority may be found in other cases not cited.? 
 
 Conveyances Executed with Fraudulent Intent. 
 
 § 160. Without regard to the existence of a valuable considera- 
 tion, or its amount, if the deed, transfer, etc., is executed with a 
 fraudulent intent on the part of both grantor and grantee, it is 
 
 'HiiUo. Canover's Ex'ors, 35 Ind. 372; Belt & Conway u Wilson's Adm'r, 6 
 J. J. Marsh (Ky.), 495; Doubleday k. Kress, 50 N. Y. 410; 10 Am. E. 502; 
 Brown v. Taylor's Committee, 32 Grat. 135; Owen v. Eiel/s Adm'r, not reported; 
 Daniel on Neg. Inst., Vol. 1, p. 553. I have adherred to the rule stated in the 
 text and to the authorities cited as sustaining it in spite of the very different state- 
 ment of the law in the case of Bell and Wife v. Moon, Com. &c., 79 Va. 341. 
 
 ^Leading Cases in Eq., Vol. 2, Pt. 2, p. 1642; Jones i). Witter, 13 Mass. 304. 
 What constitutes an equitable assignment. Chesapeake, &c. Ass' n v. Coleman, 94 
 Va. 433; Hicks v. Koanoke Brick Co., Id. 741. 
 
 'Canfleld v. Monger, 12 John. R. 346; Briggs v. Dorr, 19 Ibid. 95; Ford j). 
 Stuart, Ibid. 342; Dawson v. Coles, 16 Ibid. 51; Prescott v. Hull, 17 Ibid. 284; 
 Dunn V. Snell et ah, 15 Mass. 481; Warring v. Williams, 8 Pick. 326. A gift of 
 a chose in action may be made without a written assignment. Grover, Adm'r, r. 
 Grover, 24 Pick. 261; 35 Am. Dec. 319; note, p. 322. 
 
 ♦Minor's Institutes, Vol. 2, pp. 325, 326. 
 
 5 Morrison's Ex' or v. Grubb, 23 Grat. 348; Henry v. Graves, 16 Grat. 252; 
 Kekewioh v. Manrimg, 12 Eng. L. & E. E. 120; Grover v. Grover, 24 Pick. 261. 
 
§ 160 CONVEY ANOBS WITH FRAUDULENT INTENT. 561 
 
 void against creditors and purchasers affected by it ; but a convey- 
 ance not fraudulent in its inception cannot become so by matters 
 subsequent, for the statute requires that the criminal intent should 
 exist at the time the act is done.* If the act of the grantee be 
 bona fide, the motives or intentions of the grantor will in nowise 
 affect him ; for, to avoid a deed upon a valuable consideration, it 
 is absolutely essential that both parties should have concurred in 
 the fraud.^ 
 
 Although the courts will only avoid a deed because of a fraudu- 
 lent intent existing at the time of its execution, yet if it be after- 
 wards employed for a fraudulent purpose, a court of equity will 
 interpose to prevent such use of it.' 
 
 The extent to which the grantee's complicity in the fraudulent 
 act will serve to avoid the deed, is shown by the case of Garland 
 V. Rives, 4 Rand. 282, in which it was held that, although " he 
 takes a deed of trust to secure a bona fide debt, yet if he, at the 
 same time, inserts or agrees to the insertion of provisions in the 
 deed to delay, hinder or defraud creditors, the conveyance will be 
 void as to the debt so secured ; " and the same effect was given 
 to a deed by which the creditor had secured to himself a bona fide 
 debt, and at the same time one to the grantor's wife which was 
 voluntary and fraudulent as to his creditors.* But where a deed 
 is executed to secure bqth fraudulent and bona fide debts, and the 
 bona fide creditor has no notice of the dishonest purpose of the 
 grantor, the deed is valid s'ecurity for the bona fide debt.' 
 
 1 Minor's Institutes, Vol. 2, p. 602; Lomax's Digest, Vol. 2, p. 419, 420; Bris- 
 coe V. Clark, 1 Band. 213 ; Garland v. Eives, 4 Kand. 282; Magniac v. Thompson, 
 7 Pet. 393; Qaytor v. Anthony, 6 Eand. 306-'7; Wright v. Hencook & Co., 3 
 Munf. 521 ; Lang v. Lee, &c. , 3 Eand, 410. 
 
 ^ Herring et als v. Wickham and Wife et als, 29 Grat. 628. But a woman about 
 to be married may not, with an intention to defraud and deceive her expected hus- 
 band, and without his consent, convey away her property. Gregory et al v. Win- 
 ston's Adm'r, et als, 23 Grat. 102; Prewitt v. Wilson, 103 U. S. E. 22; Goshom's 
 Ex' or V. Snodgrass et ah, 17 W. Va. 717. 
 
 'Minor's Institutes, Vol 1, p. 602. 
 
 * Lewis et ah v Caperton's Ex'ors et ah, 8 Grat. 148. 
 
 ^ Billups V. Sears et ah, 5 Grat. 31. See also Skipwith' s Ex' or v. Cunningham, 
 
 36 
 
562 REMEDIES PROVIDED BY STATUTE. § 160 
 
 Where the plaintiff and the defendant entered into an agreement 
 whereby the plaintiff, for the purpose of defrauding his creditors, 
 was to convey to the defendant without consideration a certain tract 
 of land, the defendant agreeing to reconvey the same on request, 
 and by the frauds of the defendant, and without the knowledge of 
 the plaintiff, the deed was made to include certain other lands of the 
 plaintiff, it was held that the deed should be set aside, at the plain- 
 tiff's suit, as to the lands included through the defendant's fraud.* 
 
 A creditor who has confirmed a fraudulent deed by receiving a 
 benefit under it, or has become a party to it, is estopped from after- 
 wards impeaching it.^ 
 
 The fact that creditors may be hindered or delayed is not of 
 itself sufficient to vacate a deed unless the actual fraudulent intent 
 exists ; ' hence, a postponement, by the provisions of the deed, of 
 the sale of the property conveyed, for two years, has been held not 
 to invalidate a deed, although the contrary has been held when the 
 postponement was unreasonable, as for ten years, and even in one 
 ease where it was for three years.* 
 
 &c., 8 Leigh, 293; Kemper v. Kemper, &c., 2 Kand. 8; Skipwith v. Strother, &c,, 
 3 Band. 214; Fleetwood v. Janson, 2 Atk. 467; Anderson et als v. Hook et al, 9 
 Ala. 705; American Lead. Cases, Vol. 1, p. 101. 
 
 ^ Clemens v. Clemens, 28 Wis. 637, 9 Am. E. 520. A conveyance intentionally 
 made to defraud creditors may be void as to aU subsequent as well as all prior 
 creditors (Clark v. French, 23 Maine, 221; 39 Am. Dec. 618), but this is not true 
 as to a grantee who has no knowledge of the fraud. Prewitt v. Wilson, 103 U. S. 
 E. 22. A conveyance just before and in contemplation of marriage, although 
 without the knowledge of the intended wife, was held not to be fraudulent per se 
 as to her. Hamilton v. Smith, 57 Iowa, 15; 42 Am. E. 39. But where intended 
 to defraud the intended wife it is void. Kelly v. McGrath, 70 Ala., 75; 45 Am. 
 E. 75. 
 
 ' Adlum 1). Yard, 1 Eawle, 163, 171; Burrows & Jennings v. Alter et als, 7 Mis- 
 souri, 424; Mathews' Digest, Vol. 1, p. 543; Kixe/s Adm'r v. Dietrick, 85 Va. 
 46. Neither the grantor nor his assignee can maintain a suit to set aside a deed as 
 made with intent to hinder, delay and defraud. Billingsly v. Menear, W. Va. • 
 29 S. E. E. 63. ' 
 
 5 Dance et ak v. Seaman et ak, 11 Grat. 778, 782; Skipwith's Ex'ors v Cunninff- 
 ham, &c., 8 Leigh, 271, 274. ^ 
 
 * Minor's Institutes, Vol. 2, p. 603; Lomax's Digest, Vol. 2, p. 422; Garland v. 
 
 Eives, 4 Eand. 282; Lewis v. Caperton's Ex'ors, 8 Grat. 148; Paris v. Cochran, 
 
 11 Grat. 348; Dance et ah v. Seaman et ak, Ibid. 781. 
 
§ 161 DEEDS PEAUDULENT PEE SE. 563 
 
 Deeds Fraudulent per se. 
 
 § 161. A deed may in itself contain a provision which may 
 compel a conclusive presmnption of fraud/ and even without such 
 provision there may be some act of the grantor which, taken with 
 the deed itself, will accomplish the same result. Such, for instance, 
 is the case of a deed making an absolute conveyance on its face, 
 and yet the possession of the property is retained by the grantor 
 under circumstances irreconcilable with the absolute grant.^ We 
 will consider first the subject of deeds intrinsically fraudulent. 
 
 Among those provisions in a deed from which a fraudulent pre- 
 sumption is concluded is an unreasonable postponement of the 
 time for the sale of or payment for property conveyed in trust 
 for creditors. Such, as we have already seen,' has been held of a 
 deed that delayed the sale for ten, or even three years, but a delay 
 for two years was thought not to be an unreasonable time.* It has 
 
 ' Williams et al v. Lord & Kobinson et ah, 75 Va. 390. But fraud in such a deed 
 is never presumed unless the terms of the instrument preclude any other inference 
 (NorrissD. Lakeeiafe, 89 Va. 513), and when the court is called on to decide whether 
 a deed is fraudiilent on its face it must decide the question from an inspection of 
 the deed alone. Landeman v, Wilson et cd, 29 W. Va. 707. Deeds giving power 
 to assignee to sell on credit held to be void. Keep v. Sanderson, 2 Wis. 42; 60 Am. 
 Dec. 404; note, p. 406. But see Pos(, p. 565. Eeservatiou of possession of a stock 
 of goods after an absolute sale is prima facie fraudulent against creditors of the 
 grantor, but not against subsequent purchasers for value without notice of the prior 
 sale. Benjamin v. Maddox, 94 Va. 66. 
 
 " This question usually arises in cases of assigrunents of stocks of goods in trust. 
 The test in all such cases is whether or not the assignment is an absolute appropria- 
 tion of the goods to the payment of the debts and is free from any reservation of 
 power or interest in the assignor or in the trustee inconsistent with such an absolute 
 appropriation. Perry & Co. v. S. V. N. Bank, 27 Grat. 755; Lang v. Lee, 3 Eand. 
 410; Addington v. Etheridge, 12 Grat. 336; Marks v. HOI, 15 Grat. 400; Mc- 
 Cormick, Trustee, v. Atkinson, 78 Va. 8; Hughes, &o. v. Epling, 93 Va. 424; Stone- 
 burner & Richards v. Motley, 95 Va. 784. Power in the trustee to replenish the 
 stock out of the fund, if it be to a limited extent, and only for the purpose of mak- 
 ing sale of the whole stock, wiU not avoid the assignment. Marks v. Hill, 15 Grat. 
 400; Gordon v. Cannon, 18 Grat. 400; Catt v. Knabe Mfg. Co., 93 Va. 740; Wil- 
 liams 1). Lord & Eobinson, 75 Va. 390; Taylor v. Mahoney, 94 Va. 508; Baer 
 Sons, Grocers, v. WiUiams, W. Va. ; 27 8. E. E. 345. '' Ante, i 160. 
 
 * Minor's Institutes, Vol. 2, p. 603; Dance et als v. Seaman et als, 11 Grat. 778- 
 Cochran v. Paris et als, 11 Grat. 348. 
 
564 REMEDIES PROVIDED BY STATUTE. § 161 
 
 also been held that a deed which provided for a sale after three 
 years, the grantor in the meantime paying the interest on the debts, 
 was not fraudulent per se, though made without the knowledge of 
 the creditors secured.^ And the same was held of a deed that con- 
 tained no provision for the payment of interest during the time 
 possession was retained.^ 
 
 The retention of any control, or the reservation of any right in 
 the grantor inconsistent with the full appropriation of the property 
 conveyed to the purposes of the trust and the benefit of the credit- 
 ors secured, will invalidate the deed. Such has been held where 
 the grantor reserved the power of revoking the deed ; ' the right 
 to select as trustee one disqualified by illness, mental infirmity or 
 distance ; * a provision for the maintenance of the grantor or his 
 family ; ° or for his employment at a fixed salary.^ Where a mer- 
 
 ' Sipe V. Earman et als, 26 Grat. 563. 
 
 ' Lewis et ah v. Caperton's Ex' or et als, 8 Grat. 148. A deed reserving the use 
 of personal property for three years was declared not fraudulent per se. Young el 
 alt V. Willis et als, 82 Va. 291. The Virginia and West Virginia cases on this 
 point are fully discussed by Judge Johnson in Landeman v. Wilson, 29 W. Va. 
 707. A trust permitting the trustee to cultivate the land until it shotild be sold, 
 was held not fraudulent. Bubose v. Dubose, 7 Ala. 235 ; 42 Am. Dec. 588. Ke- 
 servation of exempt property does not avoid an assignment. Richardson v Mar- 
 queze, 69 Miss. 80 ; 42 Am. R. 353. A mortgage with power in the mortgagor to 
 sell in the ordinary course of his business was held void. Fund v. Fletcher, 39 
 Ark. 325; 43 Am. K. 270. Possession after execution sale is not evidence of fraud. 
 Garland v. Chambers, 11 S. & M. 337; 49 Am. Dec. 63. But see Post, p. 566, as 
 to the eflfect of retention of possession after a, sale. Provision allowing grantor, 
 without the power of sale, to replenish stock of goods and extending the trust to 
 cover the same held not fraudulent. Baer Sons, Grocers, v. Williams, W. Va. ; 
 27 S. E. R. 345. See also Catt v. Knabe Mfg. Co. 93 Va. 736. 
 
 ' But see Jones v. Clifton, 101 U. S. 227. 
 
 * Assignment to known insolvent is prima faeie evidence of a fraudulent intent. 
 Reed v. Emery, 8 Paige Chy. 417; 35 Am. Dec. 720; note, p. 722. 
 
 ' McClurg V. Lacky, 3 Penrose & Watts, 83; 23 Am. Dec. 64. But a settlement 
 which gave to the grantor a bare maintenance with his wife for his life, and pro- 
 vided that the property should not be subject to his debts thereafter contracted, was 
 held not to vest him with such an interest in the property as could be subjected to 
 satisfy his after-contracted debts. Johnston v. Zane's Trustee et als, 11 Grat. 552. 
 As to the right to enforce such a provision generally, see Johnson's Adm'r v. Bil- 
 lups et als, 23 W. Va. 685. 
 
 « Minor's Institutes, Vol, 2; p. 604; Lomax's Digest, Vol. 2, p. 424-5; Langji. 
 
§ 161 DEEDS PEAUDULENT PEE SE. 56-5 
 
 chant conveyed all his stock in trade, with all accretions to and 
 replenishments of the same, in trust to secure and indemnify cer- 
 tain endorsers on his notes, with a provision that if the notes were 
 not paid on demand, the trustee, upon the written request of either 
 of the parties secured, should sell the property, and the grantor 
 remained in possession of the goods, and carried on his trade as a 
 merchant, the deed was held to be fraudulent per se} In this case 
 there was no express provision that the possession should be re- 
 tained ; but, on the other hand, there was no provision for the 
 immediate delivery of the goods, and no such delivery was made. 
 The reservation of a power inconsistent with the trust was con- 
 clusively presumed from the terms of the deed that the trustee 
 should only sell " upon the written direction of either of the parties 
 secured," and that he " shall not be held responsible for any of the 
 property conveyed until he is ordered to sell the same." ^ Indeed, 
 a clause exempting the assignee from such duties as the law affixes 
 to his office, such as that the assignee shall not be liable for any 
 loss unless it happens by his own gross negligence and wilful mis- 
 feasance, has been held of itself to be sufficient to invalidate a 
 deed.^ It has also been held that a conveyance giving the trustee 
 authority to sell on credit is void upon the ground that a debtor 
 cannot by an assignment avoid the obligation of immediate pay- 
 ment when a debt is due, nor can he, without the consent of the 
 
 Lee, 4 Band. 410; Janney, &c. v. Bamea, 11 Leigh, 100; Sheppard v. Turpin, 3 
 Qrat. 374; Spence v. Bagwell, 6 Grat. 444; Addington i). Etheridge, 12 Grat. 436; 
 Marks J). Hill, 15 Grat. 400; Gardener et als v. Johnston etal, 9 W. Va. 403; Lock- 
 ard & Ireland v. Berkley e< ah, 10 W. Va. 87; Hughes, Eflinger '& Co. v. Epling, 
 93 Va. 424; Saunders v. Waggoner, 82 Va. 317; Wray v. Davenport, 79 Va. 19. 
 
 ^ But a distinction is made in this respect between a stock of store goods and 
 household and kitchen furniture. Klee & Bro. v. Beitzenberger, 23 W. Va. 749. 
 
 ' Perry & Co. v. Shen. Valley National Bank, 27 Grat. 755. See also Quarles 
 et als V. Keer et ah, 14 Grat. 48; Garden & Co. v. Bodering's Adm'x, 9 W. Va. 121; 
 Williams et al v. Lord & Eobinaon et ah, 75 Va. 390; Davenport v. Foulke, 68 
 Ind. 382; 34 Am. E. 265; Prankhouser v. EUet, 22 Kan. 127; 31 Am. E. 171, 
 and note, 178; McCormick, Trustee, v. Atkinson, Trustee, 78 Va. 8; Wray v. 
 Davenport & Morris, 79 Va, 19; Klee & Bro. v. Beitzenberger el al, 23 W. Va. 749. 
 
 'Thomas v. Jenks, 1 Am. L. Cases, 68; Litchfield v. White, 3 Sanf. 547. 
 
566 REMEDIES PROVIDED BY STATUTE. § 161 
 
 creditor, extend the period of credit' In Virginia, however, it 
 is not an unusual practice to provide for a sale of the trust prop- 
 erty upon credit, and unless the time for payment is unreasonable 
 the deed will not on that account be set aside; and deeds which 
 provide that the trustee shall sell and dispose of the property upon 
 such terms as in his judgment may appear just, and for the interest 
 of all parties interested, seem to have been almost universally sus- 
 tained.^ 
 
 Where a deed conveyed land, houses, and cattle, farming im- 
 plements, household and kitchen furniture, growing grain and 
 vegetables, and the grantor was to retain possession for three years, 
 during which time some of the property conveyed would neces- 
 sarily perish or be consumed in maintainiog the stock conveyed, 
 the deed was held to be valid ; * and it has often been held to be 
 a good and sufficient deed where the grantor provided that some of 
 the property conveyed should be consumed for the benefit of the 
 rest, that materials on hand might be worked up, and that the 
 business in which the grantor was engaged should be carried on 
 for a limited time for that purpose.* 
 
 The retention of the possession of property conveyed in trust 
 for creditors, or absolutely to another, after the date of the con- 
 veyance, has given rise to a variety of decisions in cases involving 
 the validity of such deeds. The character of the property itself, 
 too, has some bearing upon the question ; for while it seems to 
 be well established that the assignment of a stock of goods to a 
 trustee in trust for creditors, and the continued possession and sale 
 thereafter in the ordinary course of business by a merchant, even 
 though he agrees to replenish the stock and keep up its value, will 
 
 » McQeery v. Allen, 7 Neb. 21; 29 Am. B. 377; Keep v. Sanderson, 2 Wis. 43; 
 
 60 Am. Dec. 404; note, p. 406; Nicholson v. Leavitt, 6 N. Y. 510; 57 Am. Dec. 
 
 499; note, 505. 
 
 ' Brahmstadt v. McWhirter, 9 Neb. 6; 31 Am. E. 396; notes, 398, 399; Norris 
 V. Lake et ah, 79 Va. 513. . > . 
 
 " Sipe V. Earman el ah, 26 Grat. 563. 
 
 * Perry Insurance and Trust Co. v. Foster, 58 Ala. 502; 29 Am. R. 779; notes, 
 p. 787. 
 
§ 161 DEEDS FEAUDtTLENT PEE SE. 567 
 
 be held to be absolutely void ; ^ yet such a result does not neces- 
 sarily follow the retention of property of a different character 
 after the conveyance thereof. The effect given by the earlier 
 authorities, following what was supposed to be a just interpreta- 
 tion of the great leading cases/ to the retention of the possession 
 of property after an absolute conveyance, was that such retention 
 was conclusive proof of fraud, and that it was not open to any evi- 
 dence or explanation whatever. This rule was followed in Vir- 
 ginia* up to the time of the decision of the case of Davis v. 
 Turner, 4 Grat. 422 ; * but the effect of that case was to modify 
 the rule and fix it as it now stands, which is, that whilfe the owner- 
 ship is taken to be with the possession, and the retention of posses- 
 sion of property after a sale renders the transaction prima facie 
 fraudulent, it is still admissible for the claimant to prove that such 
 possession was consistent with a bona fide purchase, as for instance 
 that after the sale the property was hired or lent to the former 
 owner." This rule is mainly applied to chattels, and can hardly 
 
 ' Perry & Co. v. Shen. Valley National Bank, 27 Grat, 755. A provision for 
 the retention of property consumable in the user renders a deed void. Sommer- 
 ville & Crutchen v. Horton, Adm'r, 4 Yerger, 541; 26 Am. Dec. 242. See also 
 Jones V. Syer, 52 Md. 211; 36 Am. E. 366; Clark v. French, 28 Maine, 221; 39 
 Am. Dec. 618; Deering v. Cobb, 74 Maine, 332, 43 Am. K. 596. Deed providing 
 that trustee should carry on the business and subjecting the trust property to the 
 casualties incident thereto held void. Catt i'. Wm. Knabe Mfg. Co. , 93 Va. 740. 
 
 "Twyne's Case, 3 Coke, 80; Smith's Leading Cases, Vol. 1, p. 33; Edwards ji. 
 Harben, 7 Term. 687; Hamilton v. RusseU, 1 Cranch, 309; Crouch v. Carrier, 16 
 Conn. 505; 41 Am. Dec. 156; Streeper v. Eckhart, 2 Whart. 202; 30 Am. Dec. 
 258; note, p. 262; Davis v. Bigler, 62 Penn. 242; 1 Am. E. 393; MiUs v. Warner, 
 19 Vt. 609; 47 Am. Dec. 711; note, 714. 
 
 'Fitzhvigh V. Anderson et ah, 2 H. & M. 303; Alexander v. Deneale, 2 Munf. 
 341; Eobertson v. EweU, 3 Ihid. 1-7; Thomas v. Soper, 5 llid. 28; Williamson v. 
 Farley, Gilm. 15. 
 
 * Fleming, Gdn., v. Townsend, 6 Ga. 103; 50 Am. Dec. 318; note, 326; Davis 
 V. Turner, decided in 1848. 
 
 ' See also Curd v. MUler, 7 Grat. 185; Smith's L. Cases, Vol. 1. p. 61; Bump on 
 Fraudulent Conveyances, Ch. 5, p. 60. The same rule is generally adopted in the 
 other States, either by decisions or by statute. 29 Am. E. 788; Callen v. Thomp- 
 son, 3 Yerger, 475; 24 Am. Dec. 687; Bissell v. Hopkins, 15 Am. Dec. 263; Co- 
 bum V. Pickering, 14 Ihid. 375, note; Thornton v. Davenport, 1 Scammon, 296; 
 29 Am. Dec. 358; Waller v. Todd, 3 Dana, 503; 28 Am. Dec. 94. 
 
568 REMEDIES PROVIDED BY STATUTE. § 161 
 
 be said to have an application to real estate ; ' and it does not apply 
 to the case of a deed of trust which has been put on record,^ nor 
 to the case of a recorded marriage settlement, either post or ante- 
 nuptial, where the husband living with his family remains in pos- 
 session.^ 
 
 Provision is also made by statute in Virginia,^ that no gift of 
 any goods or chattels shall be valid unless it be by deed or will, 
 or unless actual possession shall have come to and remained with 
 the donee or some person claiming under him ; but if the donor and 
 the donee reside together at the time of the gift, possession at 
 the place of the residence shall not be a sufficient possession 
 within the meaning of the act. If^ however, there is a sale in- 
 stead of a gift, the possession at the place of joint residence will 
 be sufficient.' But the statute * now provides that every bill of 
 sale or contract for the sale of goods and chattels, when the pos- 
 session is allowed to remain with the grantor (and any such bill of 
 sale or contract shall be in writing and signed by the grantor) shall 
 be void as to subsequent purchasers for valuable consideration and 
 creditors until and except from the time that it is duly admitted 
 to record as provided by the statute. 
 
 Either a single debtor or a firm may convey their whole prop- 
 erty for the payment of debts, giving preferences among creditors, 
 
 1 Minor's Institutes, Vol. 2, p. 603; Lomax's Digest, Vol. 2, p. 421; Charlton v. 
 Gardner, 11 Leigh, 281. 
 
 ' Lewis V. Caperton's Ex' or, 8 Grat. 148; Klee & Bro. v. Eeitzenberger et al, 23 
 W. Va. 749. 
 
 ' Land v. Jeflfries, 5 Eand. 211. 
 
 'U 2413, 2414. Statue (| 2413) changed from ? 1, Ch. 112, Code 1873, to 
 meet the cases of Burkholder v. Ludlam, 30 Grat. 255; Boiling v. Teel, 76 Va. 
 487; Stokes v. Oliver, 76 Va. 72; Halsey v. Peters, 79 Va. 60, and Grigsby v. Os- 
 bom, 82 Va. 371. § 1, Ch. 71, Code West Virginia, embaces this provision of 
 § 2414 and the first part of ^ 2413. 
 
 * Braxton v. Gains, &c., 4 H. & M. 151. See also McKee v. Garcelon, 60 Me. 
 165; 11 Am. E. 200; Frankhouser v. EUet, 22 Kas. 127; 31 Am. E. 171. See 
 Yancey t>. Field, 85 Va. 756; Miller u Cox, 38 W. Va. 747; Scott, Trustee, v. Jones, 
 &c., 76 \'a. 233. See also, as to gift causa mortis, Thomas' Adm'r it. Lewis, 89 
 Va. 1. 
 
 " Code, 'i 2465, as amended by act of March 3, 1898, Acts 1897-8, p. 833. 
 
§ 161 DEEDS FRAUDULENT PEE SB. 569 
 
 and requiring releases from such as accept the benefit of the trust.^ 
 It has been held that such a deed must convey the whole of a 
 debtor's property, although this fact need not appear on the face 
 of the deed, and the retention of property of small value will not 
 affect the deed ; ^ but this is not the rule where a release is not 
 required ; ' and while a suificient description of the property con- 
 veyed is always requisite, yet where a deed referred to a schedule 
 of goods which was then made out and intended to be annexed to 
 the deed, although it was not so annexed at the time the deed was 
 recorded, the description was held to be sufficient and the deed 
 valid.* 
 
 It is not then an improper reservation of an interest to require 
 creditors to release all further claim, as a condition to sharing in 
 the proceeds of property conveyed for their benefit, and this re- 
 lease may be required in favor both of a firm and of the individ- 
 ual members thereof.^ In one case a requirement that the release 
 should be made in three months,^ and in another that it should be 
 made in thirty days, was held to be valid.^ It is also necessary, 
 
 ' Lucas, Sergeant, &c. u. Clafflin & Co. , 76 Va. 269. Contra, Duggan v. Bliss, 
 4 Col. 223; 34 Am. E. 80. Preferences by insolvent debtors forbidden by statute in 
 West Virginia. Code 1891, Ch. 74, ? 2, as amended by act of February 16, 1895. 
 See Argand Kefining Co. et al v. Quinn ei al, 39 W. Va. 535; 20 S. E. K. 576. 
 And gives all the creditors the benefit of the deed of trust. Kumer et al v. O' Neil 
 et al, 39 W. Va. 515; 20 S. E. E. 589. 
 
 ^ Skipwith's Ex' or v, Cunningham, 8 Leigh, 292; Phippen v. Durham et ah, 8 
 Grat. 457; Kevan et ah v. Branch, 1 Grat. 280; Gordon et ah v. Cannon et ah, 18 
 Grat. 387; Long v. Meriden Brittania Co., 94 Va. 594. 
 
 ' Williams et al v. Lord & Eobinson et als, 75 Va. 390. 
 
 * Gordon et ah v. Cannon et ah, 18 Grat. 387; Kevan et ah v. Branch, 1 Grat. 
 280; Williams et al v. Lord & Eobinson et ah, 75 Va. 390. 
 
 ^ Gordon et als v- Cannon et ah, 18 Grat. 387. Contra, Atkinson v. Jordan, 5 , 
 Ohio, 293; 25 Am. Dec. 281; notes, p. 291. See Shufeldt v. E. Courtney Jenkins 
 & Co., United States Circuit Court E. D. Va., 8 Va. Law Journal, 709. An as- 
 signment for the benefit of creditors which provided for the payment of the debt 
 secured, by instalments, pro rata as the trustee should realize the cash, and for re- 
 taining the cash under certain circumstances, was held not conclusively void. Eicks 
 V. Copeland, 58 Texas, 54; 37 Am. E. 760. 
 
 * Kevan el ah v. Branch, 1 Grat. 280. 
 
 'Phippen v. Durham et ah, 8 Grat. 457; Williams et al v. Lord & Eobinson et 
 als, Va. Law Journal, 1881, p. 249. 
 
570 EEMEDIES PEOVIDED BY STATUTE. § 161 
 
 in order to a valid deed, that the thing granted should be a sub- 
 ject capable of being conveyed. For instance, it is an undoubted 
 proposition that one cannot grant or charge that which he does not 
 own, or which does not exist at the time ; although, of course, one 
 may contract for the sale or delivery of chattels which he does not 
 own, and such a contract may be tlie foundation for an action for 
 damages. A further distinction seems to be this : a man cannot 
 grant, for instance, all the wool that shall grow upon his sheep 
 that he shall buy hereafter, but he may grant all the wool of his 
 sheep for seven years. One may also make a grant of property 
 afterwards to be acquired ; ' and while that alone wiU be invalid, 
 yet if after it is acquired he performs some new act indicating his 
 intention that the property shall pass under his former grant, then 
 the grant coupled with the act will constitute a valid conveyance. 
 
 A potential ownership ^ may also be the subject of a transfer 
 which will pass the right of property when it matures. Upon 
 this principle a sale by a tenant of next year's crop, or a lien 
 thereon when the crop is not yet planted ; a sale of the future in- 
 crease of a flock of sheep, or of *the wool ; and an assignment of 
 the freight of a ship for an existing voyage, or for one on which 
 she is about to depart, are all competent and valid conveyances.^ 
 
 In Virginia, however, while it has been held that a conveyance 
 of future crops does not render the deed fraudulent per se, yet a 
 doubt is expressed whether a conveyance of such crops, the in- 
 
 ^ See the full discussion of this subject, Post, Vol. 2, J 303. 
 
 2 See Post, Vol. 2, 5 303. Wiant v. Hays, W. Va,; 18 S. E. E. 807; Eanlett 
 V. Blodgett, 17 N. H. 298; 43 Am. Dec. 603. 
 
 " RyaU V. Eowles, L. Cas. ia Eq., Vol. 2, Pt. 2, p. 1611 to 1613; Gfand Eapids 
 Bridge Co. v. Prange, 35 Mich. 400; 24 Am. E. 585; Cochrane v. Paris et al, 11 
 Grat. 348; Dance al al v. Seaman et al, Ibid. 778; Moore v. Byium, 10 S. C. 452; 
 30 Am. E. 58, and notes, pp. 63 to 68; Butt v. Ellis, 19 Wall. 544; Wait's Actions 
 Defences, p. 170 et seq.; Arques v. Wasson, 51 Cal. 620, 21 Am. E. 718; Apper- 
 son V. Moore, 30 Ark. 66; 21 Am. E. 170; Pumer v. Piercy, 40 Md. 212; 17 Am. 
 E. 591, and notes on p. 595; Hutchinson u. Ford, 9 Bush. 318; 15 Am. E. 711; 
 Bryant v. PenneU, 61 Me. 108; 14 Am. E. 550; P. W. & B. E. E. Co. v. Woelp- 
 per, 64 Penn. 366; 3 Am. E. 596; McCaffirey v. Wooden, 65 N. Y. 459; 22 Am. 
 E. 644; notes, p. 653; Williams' Adm'r v. Briggs, 11 E. I. 476; 23 Am. E. 518. 
 
§ 162 THE EVIDENCE OF FRAUD. 571 
 
 crease of stock, etc., will be good against subsequent execution 
 creditors,^ and this appears to have been substantially decided in 
 the negative in West Virginia.^ The assignment of wages to be 
 thereafter earned under an existing employment has been held to 
 be valid, although the employment was for no definite time,' but 
 the assignment of the salary of a public officer before it was 
 earned was held to be invalid.* A conveyance to secure future 
 advances to a specified amount is valid,^ and this has also been 
 held where the amount secured was not specified ; but where it is 
 optional with the mortgagee whether he will make the future ad- 
 vancements or endorsements, he will be affected by any subsequent 
 lien or encumbrance which is brought to his knowledge before the 
 advance is made or the liability assumed. But if without notice 
 of the second encumbrance he acts under his mortgage, he will be 
 protected, and will take precedence accordingly.* 
 
 The Evidence of Fraud. 
 
 § 162. "We have already^ considered what is the effect, as a 
 matter of evidence, of the retention of property after a sale or 
 conveyance thereof. Subject to that qualification the rules of evi- 
 dence governing the proof of fraud are not different from those 
 that affect the establishment of any other disputed fact. " Fraud," 
 
 'Brockenbrough'e Ex'x et al v. Brockenbrough's Adm'r et ok, 31 Grat. 580. 
 But see First National Bank of Alexandria v. Tumbull & Co., 32 Grat. 695. For 
 the essentials of a proper deed of trust, see further, Post, ^ 299. 
 
 'Holling, Brokenhoff & Co. v. CabeU, 9 W. Va. 522; First National Bank of 
 Alexandria v. Tumbull, 32 Grat. 695. 
 
 ' Kane v. dough, 36 Mich. 436; 24 Am. E. 599. The sale of growing trees is 
 treated as the sale of an interest in land. Stuart v. Pannis, 91 Va. 688. 
 
 * Bliss V. Lawrence, 58 N. Y. 442; 17 Am. E. 273. A mortgage given to secure 
 future advances will be postponed as to such advances, to a second mortgage re- 
 corded before the advances were made. Spaden v. Lawler, 17 Ohio, 371; 49 Am. 
 Dec. 461; note, p. 463. 
 
 5 McCarty et al v. Chalfant et al, 14 W. Va. 531. 
 
 ^ Shirras et als v. Craig & Mitchell, 7 Cranch E. 34 Alex. ; Savings Inst, et als v. 
 Thomas et als, 29 Grat. 483; Summers & Brannin et ai v. Eoos & Co., 42 Miss. 749- 
 2 Am. E. 653. 
 
 ' Ante, § 161. 
 
572 REMEDIES PROVIDED BY STATUTE. § 162 
 
 says a learned judge/ " is to be legally inferred from the facts 
 and circumstances of the case^ where those facts and circumstances 
 are such as to lead a reasonable man to the conclusion that the 
 
 ' Hunter's Ex'ora v. Hunter's Heirs, 10 W. Va. 321. See also Goshom's Ex' or 
 D. Snodgrass, 17 W. Va. 717. As to the extent to which the innocence of a bene- 
 ficiary will affect the validity of a conveyance executed with intent to hinder, delay 
 and defraud creditors, see the varying cases discussed in Savage v. Knight, 92 
 N. C. 493; 53 Am. E. 423. The grantee must be proved to have had notice of 
 the grantor's fraudulent intent. Hickman v. Trout, 83 Va. 478. But it is suf- 
 ficient to prove that the grantee in a deed had knowledge of such facts as would 
 have put a prudent person on inquiry, which would have led to knowledge of facts 
 from which such fraudulent intent would be implied. Ferguson v. Daugherty, 94 
 Va. 308; 26 S. E. E. 822. While fraud must be clearly proved and the burden 
 rests on the alleger, it may be proved by circumstances, and when the evidence 
 shows a prima facie case of fraud the burden shifts to the upholder of the transac- 
 tion to establish its fairness. Id. The evidence may and generally must be cir- 
 cumstantial. Ferguson v. Daugherty, 94 Va. 308; Moore v. TJlman, 80 Va. 307; 
 Hazelwood v. Forrer, 94 Va. 703. Proof must be clear. Jones v. Degge, 84 Va. 
 686. The transaction of itself and by itself may furnish the most satisfactory 
 proof of fraud and so conclusive as to outweigh the answer of the defendants, and 
 even the evidence of witnesses. Sturm v. Chalfant, 38 "W. Va. 248; Jones v. Mc- 
 Gruder, 87 Va. 360. Fraud is never presumed. Jeffries v. Southwest Va. Imp. 
 Co., 88 Va. 862. When conveyance is from father to son or vice versa, stricter 
 proof of honesty in dealing will be required of the grantee than would be of a 
 stranger. Knight v. G. & C. Capito, 23 W. Va. 639. See also Burt v. Timmona, 
 29 W. Va. 441; Hickman's Ex' or v. Trout, 83 Va. 478. In the case of husband 
 to wife the rule is that all post-nuptial settlements are presumed to be voluntary, 
 and the burden of proving that they were upon a valuable consideration is upon 
 those claiming under them. Massey v. Yancey, 90 Va. 326. See also Yates v. 
 Lang, 86 Va. 117; De Farges v. Eyland, &c., 87 Va. 404; Cohn v. Ward, 32 W. 
 Va. 34; Sogers v. Verlander, 30 W. Va. 620; Childs v. Hena, 32 W- Va. 62; 
 Eixey !). Dietrick, 85 Va. 42; Himan v. Thom, 32 W. Va. 507; Witz, Biedler & 
 Co. V. Osbom and Wife, 83 Va. 227. On all this subject see also the cases cited 
 in note 2, p. 861-2, Barton's Law Pr. ; Greer et al v. O' Brien et als, 36 W. Va. 277; 
 Kinnier ■<,. Woodson, 94 Va. 711. In Crawford v. Neal, 144 U. S. E. 585, the 
 general rules as to the burden of proof and presumptions are thus well stated by 
 Ch. J. Fuller: "The burden is upon the attackmg creditor, but where the fraudu- 
 lent intent on the grantor's part is made out and the circumstances are suspicious, 
 the purchaser must show that he has paid value, and if he does, it must then 
 appear that the purchaser had notice of the fraud." See also Waller v. Todd, 3 
 Dana, 503; 28 Am. Dec. 94; Billmgs v. BUlings, 2 Cal. 107; 56 Am. Dec. 319; 
 note, 322; Houston v. Blockman, 66 Ala. 559; 41 Am. E. 756; Blennerhasset v. 
 Sherman, 105 U. S. E. 100; Eixe/s Adm'r v. Dietrick, 85 Va. 42; Bank v. Bow- 
 man, 36 W. Va. 649; Bartlett v. Qeavenger, 35 W. Va. 719; Gregory v. Peoples, 
 &c., 80 Va. 355; Matthews v. Crockett, 82 Va. 394; Baltzer v. E. E. Co. 115 U. 
 
§ 162 THE EVIDENCE OF FRAUD. 573 
 
 conveyance was made with intent to hinder, delay or defraud 
 creditors ; " and it has been held, that where the evidence shows 
 such facts and circumstances — as the conveyance being volun- 
 tary — the grantor being indebted to a material extent, to a degree 
 of embarrassment, etc., that the conveyance would probably throw 
 a hazard upon the creditors, and these circumstances are wholly 
 unexplained, it is for the court or jury to say, from circumstances 
 like these, whether the grantor intended to hinder, delay or de- 
 fraud his creditors ; and if the circumstances are such, whatever 
 they may be, as to make a prima fade case of fraudulent intent 
 in the grantor, they are to be taken as conclusive evidence of the 
 fraudulent intent, unless rebutted by other facts and circumstances 
 in the case.^ If, however, there be no prima facie case of fraud, 
 or if there be circumstances or evidence that shifts the burden of 
 proof, then fraud must be found like any other fact by clear and 
 satisfactory testimony, and the courts cannot act upon mere sus- 
 picion or presumption.^ 
 
 This does not mean, of course, that fraud is never presumed, 
 as is sometimes too broadly stated ; for as we have already seen, 
 the terms of the instrument itself, possession under certain cir- 
 cumstances, as well as other fects, raise the presumption of fraud, 
 and place the burden of proving the fairness of the transaction 
 upon those who took part in or profited by it. The better expres- 
 sion seems to be, that while the law favors the presumption of 
 honesty and never without cause presumes fraud, yet fraud itself 
 
 S. E. 634; Saunders v. Parish, 86 Va. 592; Martin & Gilbert v. Eexroad, 15 W. 
 Va. 512; Johnson, Trustee, v. Wagner & Son, 76 Va. 587; Moore v. "Ullman, 80 
 Va. 307; Stockdale, Smith & Co. v. Harris et aZs, 23 W. Va. 499; Armstrong, 
 Cator & Co. v. Lachman et ah, 84 Va. 726; Hutchinson v. Boltz, 35 W. Va. 754. 
 The burden of proof is on the wife and she must prove her case by ol?ar and satis- 
 factory testimony. Merely holding the bond of the husband is not sufficient. 
 Spence v. Eepass, 94 Va. 716; Burt v. Timmons, 29 W. Va. 441. 
 
 ' Hunter's Ex'ors v. Hunter's Heirs, 10 W. Va. 321. 
 
 * Herring et ah v. Wickham and Wife et als, 29 Grat. 631; Bump on Fraudulent 
 Conveyances, p. 584. 
 
574 EEMEDIES PROVIDED BY STATUTE. § 162 
 
 may be established by inference, the same as any other fact/ It is 
 especially important, therefore, to know the set of circumstances, 
 the existence of which being shown will cast upon the one party 
 or the other the burden of sustaining or defending the impeach- 
 ment of fraud. 
 
 Where there has been a vountary conveyance, the modern Eng- 
 lish doctrine is, that as to subsequent purchasers for value, the sub- 
 sequent ^ale for value conclusively proves the previous voluntary 
 gift to have been made with a fraudulent intent ; but the former 
 English doctrine which we are considered as having adopted along 
 with our statute was, that a subsequent sale for value after a prior 
 volutary conveyance was only presumptive evidence of a fraudu- 
 lent intent in making the prior conveyance, and threw on him who 
 claimed under such prior conveyance the burden of proving that 
 it was made bonafide.^ 
 
 It will be seen, however, that the rules affecting purchasers, and 
 establishing as to them prima fade cases of fraud, differ materially 
 from those applicable to creditors ; ' but without here going at 
 large into the former rules, the law of evidence as it stands with 
 regard to creditors may be thus stated : Voluntary conveyances 
 
 ^ Bump on Fraudulent Conveyances, p. 583; Williams et al v. Lord & Eobinson 
 el als, 75 Va. 390; Bronoon t;. Vaughn, W. Va.; 29 S. E. E. 1022. 
 
 ^Lomax'e Digest, Vol. 2, p. 453; Story's Eq. Jurisprudence, Vol. 1, J 426; ? 
 430 to ? 432; Cathcart et at v. Eobinson, 5 Pet. 264; Bank of Alex. v. Patton, 1 
 Eob. 528; Minor's Institutes, Vol. 2, p. 619. 
 
 ^ Post, this chapter, | 164; Ante, Ch. 2, | 25, and note. In 2 Minor's Insti- 
 tutes, 3d ed. 681, it is said: "If the donor in a voluntary conveyance be indebted 
 at the time he gives away his property, the gift is absolutely fraudulent and void 
 as to existing creditors, and is prima facie presumed to be fraudulent as to subse- 
 quent creditors; but that presumption, if it exists under these circumstances, may 
 be repelled by showing that the existing debts were charged on the property given, 
 and only the. surplus bestowed on the donee, or by showing that the donor retained 
 in his hands a remnant of estate amply sufficient to meet the existing demands 
 against him, without any definite improbability that it wiU be so applied." But 
 this proposition so far as it makes a deed prima facie fraudulent as to subsequent 
 creditors because there were debts existing at the time it is made is denied by 
 Chancellor Fitzhugh in PickreU v. Eeynolds, Va. Law Journal 1882, p. 312. See 
 also Wallace v. Penfield, 106 TJ. S. E. 260. The proposition cannot be sustained 
 either upon sound reason or upon authority in Virginia. 
 
§ 162 THE EVIDENCE OF FRAUD. 576 
 
 are to be reckoned always fraudulent as to existing creditors.^ On 
 the other hand it is established, that if the donor be not indebted 
 at the date of the voluntary conveyance, that affords a presump- 
 tion that there is no fraud in the gift ; a presumption which may 
 be repelled, however, by showing that the donor immediately con- 
 tracted a large amount of indebtedness, or by any other proof 
 that he designed to defraud the subsequent creditors.^ 
 
 The knowledge by the grantee of the fraudulent purpose of the 
 grantor invalidates the transaction, even if it be upon a valuable 
 consideration ; but the ignorance of the grantee of the fraudulent 
 purpose will render valid that which would otherwise be void.^ 
 
 Where the deed is Voluntary, and executed with fraudulent in- 
 tent, it has sometimes been held that the mere acceptance of its 
 benefits by the grantee makes him a partaker in the fraud, although 
 he was ignorant and innocent of the fraud at the time of its per- 
 petration ; * but the contrary has been held in Virginia, where the 
 consideration was marriage, and the wife was not found to have 
 known of the fraudulent intent.^ 
 
 When a bill is filed by a judgment creditor to set aside a 
 fraudulent conveyance made by his debtor, the judgment is prima 
 fade evidence of the debt, even against the grantee claiming under 
 
 ^ Under act of "West Virginia ( Code, Ch. 74, § 2, as amended by act of February 
 16, 1895, p. 12), the word "transfer" is taken to include gifts, sale, conveyance 
 and assignment, and the word "charge" to include a confessed judgment, deed of 
 trust, mortgage, lien and incumbrance. Preferences except to borrow money as a 
 new transaction are forbidden, but the limitation to the right to set aside such a 
 preference is short. The statute does not forbid bona fide assignment of bonds, 
 stocks, &c., either to secure existing debts, endorsers, &c., or to make new loans. 
 
 ^Minor's Institutes, Vol. 2, p. 607, and cases there cited. See also Welles v. 
 Cole et ah, 6 Grat. 645; WUson v. Buchanan, 7 Grat. 334; Lewis v. Caperton's 
 Ex' or, 8 Grat. 149; Fones v. Bice, 9 Grat. 568; Pate v. Baker, &c., 8 Leigh, 80; 
 Sayers et ah v. Wall el als, 26 Grat. 354. 
 
 ' BUlups V. Sears, 5 Grat. 31. So also of subsequent creditors. Carlton et al v. 
 King, 23 Am. Dec. 295; Goshom's Ex' or v. Suodgrass, 17 W. Va. 717. 
 
 * Crawford v. Kirksey, 28 Am. R. 721, notes. 
 
 ^ Herring et als v. Wickham and Wife et als, 29 Grat. 628. 
 
576 REMEDIES PROVIDED BY STATUTE. § 163 
 
 the conveyance. If the grantee' attempts to impeach the judg- 
 ment, it must be done on the ground of fraud, or collusion, or 
 satisfaction of it since it was rendered. He cannot set up a de- 
 fence that was made at law, and attempt to sustain it by the same 
 facts which were decided to be insufficient in the court of law. 
 This rule is a general one, and applies even to the case of usury. 
 A court of equity cannot pronounce a transaction usurious upon 
 the very same facts on which the court of law and jury have pro- 
 nounced it not to be usurious ; for, if it could, that would simply 
 amount to an appeal from the court of law to the court of equity.^ 
 
 _ Effect of Voidable Deeds on Creditors. 
 
 § 163. The statute^ avoids any gift, conveyance, transfer,^ &c., 
 executed with intent to hinder, delay, or defraud creditors ; and 
 also every voluntary conveyance as to creditors whose debts shall 
 have been contracted at the time ^ it was made ; but such a con- 
 veyance is not void as to subsequent creditors merely because it is 
 voluntary. Thie statute furthermore provides that in using the 
 word " creditors," it is not intended to confine its protection to 
 creditors of the grantor, but extends its meaning so as to embrace 
 all creditors who, but for the deed or writing, would have a right 
 to subject the property to the payment of their debts.^ This last 
 
 ' The claim of a creditor attacking a conveyance may be contested by the grantee. 
 MiUer v. MiUer, 23 Me. 22, 39 Am. Dec. 597; notes, p. 599; Johnson, Trustee v. 
 "Wagner, 76 Va. 587. 
 
 ' Garland v. Elves, 4 Band. 282; Chamberlayne, &c. v. Temple, 2 Rand. 384. 
 
 ' U 2458, 2459; Code W. Va., Ch. 74, ?§ 1, 2; Ante, I 125. 
 
 * Among which wills are included. Smith's L. Cas., Vol. 1, Pt. 1, p. 48. But 
 see Lewis et als v. Overb/s Adm'r, 31 Grat. 617. 
 
 ^ The creditor attacking the conveyance must prove that his debt was contracted 
 prior thereto. Scott, Trustee, v. Jones, 76 Va. 233. 
 
 « I 2472. This section overrules Preston v. Nash, 76 Va. 1, and Laman v. Hale, 
 79 Va. 147, as to the definition of a purchaser without notice and conforms the 
 law to the dissenting opinion of Cabell, J., in Doswell v. Buchanan, 3 Leigh, 365; 
 Code W. Va., Ch. 74, § 9; Post, Vol. 2, I 307. 
 
§ 163 EFFECT OF VOIDABLE DEEDS ON CREDITOKS. 577 
 
 provision was inserted ' to meet the cases ^ in which it had been 
 held that the protection of the act extended only to creditors of 
 the grantor who made the conveyance, and that in the case of a 
 conveyance executed by a married woman before marriage, settling 
 her property on herself, her creditors alone, and not those of her 
 husband, could impeach the conveyance.^ The word creditors is 
 intended to cover as well those who are such by contract, as for a 
 debt or for the breach of an official bond, and the assignees, as 
 those who sue ex mahficio, as for adultery or seduction,* or any 
 tort.'' But no one claiming as a volunteer under the grantor can 
 set aside a previous fraudulent conveyance of such grantor ; and 
 until the statute ° in Virginia changed the law in that respect, a 
 creditor whose debt was not yet due could not maintain the suit.^ 
 
 A personal representative of the grantor cannot maintain such 
 a suit in that capacity. If, however, the personal representative 
 be also a creditor, he may have the protection of the statute ; and 
 as against the personal representative of a decedent who fraudu- 
 lently sells the assets of the estate to and in collusion with him, 
 a distributee of the estate may proceed under the statute.^ But 
 neither the grantor nor the grantee in a fraudulent deed can main- 
 tain a bill to set it aside.' 
 
 While a voluntary deed is void as to existing debts, we have 
 
 ^Eep. Bev. 0. Va., p. 615, note. 
 
 ' Pierce v. Turner, 5 Cranch, 154; Land v. Jeffries, 5 Kand. 211. Contra, An- 
 derson V. Anderson, 2 Call. 198; Thomas v. Gaines, 1 Grat. 354. 
 
 'Minor's Institutes, Vol. 2, p. 615. 
 
 * Greer v. Wright, 6 Grat. 154. 
 
 ^Minor's Institutes, Vol. 2, p. 614; Johnson, Trustee, v. Wagner, 76 Va. 587; 
 Burton, &c. v. Mills, 78 Va. 468; Shean v. Shay, 42 Ind. 375; 13 Am. E. 366. 
 
 « I 2460 as amended by act of March 2, 1894, Acts 1893^, p. 614; Code W. Va., 
 Ch. 106, ^ 1. 
 
 ' Adler et al v. Fenton et al, 24 How. 407; Devries & Co. v. Johnston & Wolfe 
 et al, 27 Grat. 806— a divided court. Williams el al v. Tipton el al, 5 Humphreys, 
 66; 42 Am. Dec. 420. 
 
 'Minor's Institutes, Vol. 2, p. 216. 
 
 •James v. Bird's Adm'r, 8 Leigh, 510. See also Stewart v. Iglehart, 7 GUI & 
 John. 132; 28 Am. Dec. 202. 
 37 
 
578 REMEDIES PROVIDED BY STATUTE. § 164 
 
 seen that under the statute it is not void for that reason only as to 
 subsequent debts, and hence the deed may be set aside as to one 
 class, and sustained against the demands of the other.^ Where, 
 however, a deed is successfully impeached as fraudulent, and is set 
 aside for that reason, all the creditors, both prior and subsequent, 
 will share in the fund pro rata,''' unless indeed some creditor has 
 acquired a preference over the others.' 
 
 Where the conveyance is set aside on the ground of actual 
 fraud, it will be vacated in toto if the claims of the creditors re- 
 quire it, and it will not be allowed to stand as a security to the 
 grantee for any purpose of reimbursement or indemnity.* 
 
 Effect of Fraudulent Deeds upon Purchasers. 
 
 § 164. Every gift, conveyance, etc., executed with intent to 
 delay, hinder or defraud creditors, purchasers, or other persons of 
 or from what they are or may be lawfully entitled to, is void as to 
 such creditors, purchasers, or other persons, their representatives or 
 assigns ; except that this fact cannot afiect the title of a purchaser 
 for valuable consideration, unless it appears that he had notice of 
 the fraudulent intent of his immediate grantor, or of the fraud 
 rendering void the title of such grantor.^ And every voluntary 
 
 " Sayers el al v. Wall et ah, 26 Grat. 354; Witz, Biedler & Co. v. Osbom and 
 Wife, 83 Va. 227; Bronoon v. Vaughn, W. Va.; 29 S. E. R. 1022. 
 
 2 Kehr v. Smith, 20 Wall. 31; Kipp v. Hanna, 2 Bland. 26; Pratt et al v. Cox 
 et al, 22 Grat. 330. 
 
 'Wallace's Adm'r et als v. Treakle et als, 27 Grat. 479. 
 
 * Garland v. Eives, 4 Band. 282; Sands, &c. v. Codwise, &c., 4 Johns. E. 536; 
 Shield's Adm'r, &c. v. Anderson, &c., 3 Leigh, 739; Bean v. Smith, &c., 2 Mason, 
 252; Miller v. ToUeson, &c., S. C. Eq. B. 145; Casto v. Greer, W. Va.; 29 S. E. 
 E. 100. But when creditors assailing a deed succeed as to only one claim secured, 
 the claims of bona fide creditors thereby secured cannot be affected or displaced in 
 favor of the complainants. Hulings v. Hulings Lumber Co., US W. Va. 352. 
 
 ^ Garland v. Eives, 4 Band. 282; Sands v. Hildreth, 14 Johns. E. 498; Eoberts 
 V. Anderson, 3 Johns. Chy. E. 378; Coleman v. Cocke, 6 Band. 618; Herring et 
 al V. Wickham and Wife et als, 29 Grat. 628. For extent and character of notice, 
 see Pest, I 307. Bona fide purchaser from fraudulent vendee obtains a title un- 
 affected by the fraud. Fetterman v. Murphy, 4 Watts, 424; 28 Am. Dec. 729; 
 note, p. 734. Notice to trustee or creditor. Douglass Merchandise Co. v. Laird, 37 
 W. Va. 687. Notice or no notice. Blackshire «. Petit, 35 W. Va. 547. Trustee 
 is a purchaser for value. ZeU Guano Co. -ii. Heatherlv, 38 W, Va. 409. 
 
§ 164 EFFECT OP FKAUDULBNT DEEDS UPON PTJECHASEES. 579 
 
 deed is valid as to purchasers for value who shall have purchased 
 after it was made ; and though it be deemed to be void as to a 
 prior creditor, because voluntary, it shall not for that cause be 
 deemed to be void as to subsequent creditors or purchasers/ 
 
 The word purchaser referred to in the statute means all pur- 
 chasers who, but for the deed or writing, would have had title to 
 the property conveyed.^ A mortgagee or a creditor secured by a 
 deed of trust is a purchaser for value ; ' but one who purchases at 
 a judicial sale is not regarded as a purchaser under the statute, but 
 simply as succeeding to the rights of the creditor.* A conveyance 
 to secure debts to which no creditor or trustee is a party, or to 
 which no such person has given his consent, is considered, volun- 
 tary,^ and hence a revocable dedication, and consequently void 
 against a subsequent purchaser for value whose title accrues before 
 any such assent is given. A subsequent assent, however, by either 
 trustee or cestui que trust, if given before the rights of the parties 
 attach, has relation to the execution of the instrument, and gives 
 effect to it ab initio,^ and indeed the deed of trust for the benefit 
 of a creditor is valid and effectual to secure his debt unless and 
 until the creditor expressly dissents,' for his assent will otherwise 
 always be presumed. 
 
 A distinction is sometimes made between a conveyance directly 
 to creditors and one to a trustee for their benefit. In the former 
 case the assent of the creditors, before any right attaches in any 
 other person, is said to be essential to the validity of the convey- 
 
 ' ?? 2458, 2459; Code W. Va., Ch. 74, §§ 1, 2. 
 
 ' i 2472; Code W. Va., Ch. 74, J 9; 2 Lomax's Digest, p. 444 to 458; 1 Am. 
 L. Cases, p. 73 to 79; Bep. Eev., p. 615, note; Dabney and Wife v. Kennedy, 7 
 Grat. 317. 
 
 ' Evans, Trustee, v. Greenhow et als, 15 Grat. 153; Cammack v. Soran et al, 30 
 Grat. 292. But he cannot daim in the double character of purchaser and cred- 
 itor. Tate V. Liggat et als, 2 Leigh, 84. 
 
 'Minor's Institutes, Vol. 2, p. 621. 
 
 ^ But a creditor need not unite in the deed, and a conveyance for his benefit is 
 only avoided by his dissent. Zell Guano Co. v. Heatherly, 38 W. Va. 409. 
 
 "Minoi's Institutes, Vol. 2, p. 620. 
 
 ' ZeU Guano Co. v. Heatherly, 38 W. Va. 409, 431. 
 
580 REMEDIES PROVIDED BY STATUTE. § 164 
 
 ance as against such person ; but that if it be made to a trustee 
 for the benefit of the creditors, the assent of the trustee is pre- 
 sumed until the contrary is shown, aad if the assignment be made 
 without his knowledge, he may, when he knows of it, affirm it, 
 and it will be binding. The assent of absent persons to an assign- 
 ment will be presumed unless their dissent be expressed, if the 
 assignment be made for a valuable consideration and be valuable 
 to them,^ nor can we think that a distinction between a deed of 
 trust to a trustee and an assignment direct to the creditor himself 
 is founded in reason. 
 
 The fact of indebtedness at the time of the execution of a 
 voluntary conveyance, which we have noticed as having so large 
 a bearing upon the rights of creditors, is immaterial in respect of 
 imputed frauds upon purchasers ; for the intent to deceive and 
 defraud creditors, no matter how clearly it be proved, does not 
 invalidate a conveyance in respect to purchasers.^ It is, more- 
 over, only against creditors and bona fide purchasers for value, 
 that a voluntary or fraudulent conveyance is void, and it will not 
 be set aside upon the application of a grantee by a subsequent 
 voluntary conveyance ; * and where a fraudulent grantee of land 
 conveyed it to a bona fide purchaser for value without notice of the 
 fraud, after a creditor of the fraudulent grantor had obtained a 
 judgment against him, but before the land was sold under an ex- 
 ecution issued on such judgment, it was held that the title of the 
 bona fide purchaser from the fraudulent grantee was to be pre- 
 ferred to that of the purchaser under the execution of the cred- 
 itor of the fraudulent grantor.* 
 
 ' Kent's Com., ed. 1851, Vol. 2, pp. * 533 and notes; Skipwith's Ex' or v. Cun- 
 ningham, 8 Leigh, 283. 
 
 ^ Minor's Institutes, Vol. 2, p. 620. An assignment of a part of a chose in ac- 
 tion is good in equity. Exchange Bank v. MoLoon, 73 Me. 498; 40 Am. E. 388. 
 
 ^ Campbell v. Whitson, 68 111. 240; 18 Am. K. 553; Ante, § 25, note. The per- 
 sonal representative of the grantor may not impeach the fraudulent transaction of 
 the decedent. Spooner v. Hilbish, 92 Va. 333. 
 
 * Young V. Lathrop, 67 N. C. 63; 12 Am. B. 603. See also Bump on Fraudu- 
 lent Conveyances, p. 488. 
 
§ 165 RELIEF AGAINST SALES OF EXEMPT PEOPERTY. 581 
 
 Relief Against Sales of Exempt Property. 
 
 § 165. We have already seen^ that provision is made by sta1> 
 ute ^ to prevent the sale of property exempt from levy, by means 
 of an injunction ; and it is also provided by statute in West Vir- 
 ginia/ that any person having a right to charge property claimed 
 to be exempt under the provisions for a homestead, may institute 
 a suit in equity for that purpose, and the court shall provide by 
 decree or otherwise for the right of the person so claiming. 
 
 The owner of property exempt from execution, it has been 
 held, may confer a clear and valid title to it by sale or gift with- 
 out regard to his motives ; and although, by a subsequent change 
 in his circumstances, he should become unable himself to hold it 
 as exempt if he had retained the title ; ^ and the setting aside a 
 conveyance for fraud at the suit of. the husband's creditors does 
 not estop a wife from claiming a homestead in the premises,^ and 
 the homestead exemption is granted on behalf of the party him- 
 self when his fraudulent settlement on his wife has been set aside.* 
 
 Mechanics' and Crop lAens. 
 § 166. The lien given to mechanics,'' builders, contractors,' etc., 
 
 ^ Ante, ? 135, Div. 6, note. As to what property is exempt and ■who is entitled 
 to claim the exemption, see Post, ? 291. 
 
 ^ ? 3434 extending the right to injunction to protect personal property from sale 
 or removal. Code W. Va., Ch. 133, ? 1. 
 
 'CodeW. Va., Ch. 41, § 33. 
 
 * Carhart v. Harshaw, 45 Wis. 340; 30 Am. E. 752. But he may not execute 
 a homestead deed to defraud his creditors. Eose and Wife v. Sharpless, 33 Grat. 
 153. An architect and a hoss or overseer have been Jield to be laborers. Stryker 
 V. Cassidy, 76 N. Y. 50; 32 Am. E. 262; note, 264. For aU this subject, see Post, 
 I 291, and 2 Barton's LawPr., ? 189. 
 
 6 Carhart *. Harshaw, 45 Wis. 340; 30 Am. E. 752. 
 
 * Boynton et als v. McNeal et als, 31 Grat. 456. 
 
 ' A supervising architect held to be a mechanic. Stryker v. Cassidy, 76 N. Y. 
 50; 32 Am. E. 262, 264, note. 
 
 * Who are such. Merch. and Mech. Sav. Bank v. Dashiell et als,' 25 Grat. 616. 
 As to who are regarded as laborers and mechanics, see 2 Barton's Law Pr., pp. 
 818, 819; Post, I 291. 
 
582 EEMEDIES PROVIDED BY STATUTE. § 166 
 
 by statute/ may be enforced in a court of equity. When a suit is 
 brought for the enforcement of any such lien against the property 
 bound thereby, all parties entitled to such liens upon the property 
 or any portion thereof may file petitions in such suit asking for 
 the enforcement of their respective liens, which will have the same 
 effect as if an independent suit was brought by each claimant.^ 
 
 It is also provided by statute in Virginia ^ that if any person 
 other than a landlord make advances, either in money or supplies, 
 to any one who is engaged in or is about to engage in the cultiva- 
 tion of the soil, the person so making such advances shall be en- 
 titled to a lien on the crops which may be made or seeded during 
 the year upon the land, in or about the cultivation of which the 
 advances so made have been or were intended to be expended, to 
 the extent of such advances ; provided, however, that an agree- 
 ment in writing shall be entered into before any such advances are 
 made, in which shall be specified the amount to be advanced, or 
 ia which a limit shall be fixed, beyond which the advances made, 
 from time to time, during the year, shall not go, and the said 
 agreement be delivered to the clerk of the county court in which 
 the land lies, and by him docketed in a book to be kept by him 
 for that special purpose ; such agreement shall be docketed by the 
 said clerk in the same manner that judgments are now required 
 by law to be docketed, and shall have the same force and effect as 
 if they were recorded in the deed book. 
 
 Provision is also made by the statute * for restraining by injunc- 
 
 ' § 2474 to i 2484 inclusive; ? 2476 as amended. Acts 1897-8, p. 487; i 2477 as 
 amended by act of February 28, 1894, Acts 1893-4, p. 523, and Acts 1897-8, p. 
 488; § 2479 as amended by Acts 1893-4, p. 528; ^ 2481 as amended by act of Feb- 
 ruary 7, 1890, Acts 1889-90, p. 36, and by act of March 1, 1894, Acts 1893-4, 
 p. 576; i 2484 as amended by act of March 1, 1894, Acts 1893-4, p. 576; Code 
 W. Va., Ch. 75. ♦ 
 
 ^ This statute is here divided into sentences as it is believed was intended by the 
 act of March 1, 1894 Acts 1893-4, p. 576 amending J 2484; Code W. Va., Ch. 
 75, i 10. See U. S. Blowpipe Co. v. Spencer, 40 W. Va. 698. 
 
 ' § 2494 as amended by act of February 29, 1892 Acts 1891-2, p. 782. 
 
 * 2 2495. 
 
§ 167 mechanics' and cro? liens. 583 
 
 tion any one from selling or disposing of a crop upon which there 
 is such a lien and for securing the payment and satisfaction of the 
 debt for which the lien was constituted. 
 
 Statutory provision is also made for liens in favor of conduc- 
 tors, brakesmen, engine-drivers, firemen, captains, stewards, pilots, 
 clerks, depot or office agents, storekeepers, mechanics or laborers, 
 and all persons furnishing railroad iron, engines, cars, fuel and 
 all other supplies necessary to the operation of any railway, canal 
 or other transportation company, and all clerks, mechanics and 
 laborers, who furnish their services or labor to any mining or 
 manufacturing company, and for enforcing the same within a 
 limited time.' 
 
 Similar provision is made for the liens of mechanics making 
 repairs,^ general contractors,^ and for inn-keepers.* 
 
 Remedies against Corporations or Public Worhs. 
 
 §167. We have already seen" that especial caution is used in 
 granting injunctions against corporations, so as to restrain them 
 
 ' ? 2485 as amended, Acta 1891-2, p. 362; ? 2486 as amended \>j act of February 
 15, 1892, Acts 1891-2, pp. 362, 363, and Acts 1895-6, p. 340; Code W. Va., Ch. 
 75, ?§ 7, 8. The principle upon which this statute was founded of preferring the 
 employee, supply man, etc. , to the lien bondholder had its origin in the cases of 
 Fosdick V. Schall, 99 U. S. R. 235; Fosdiclc v. Car Co., Id. 256; Hale v. Frost, 
 Id. 389, and Huidekoper v. Locomotive Works, Id. 258; and in the Virginia cases 
 of Williamson's Adm'r v. W. C, V. M. & G. S. E. E. Co., 33 Grat. 624; Addison 
 V. Lewis et als, 75 Va. 701, and Fidelity Ins. Trust and Safe Dep. Co. v. S. V. 
 Bj R. Co., 86 Va. 1. Kiln-drying apparatus not an essential part of "supplies" 
 to a saw mUl. Boston Blower Co. v. Carman Lumber Co., 94 Va. 94. 
 
 ' ? 2475 as amended, Acts 1895-6, p. 71; Code W. Va., Ch. 75, § 2. A me- 
 chanic' s lien for repairs to a chattle is subordinate to a prior recorded mortgage 
 thereon for the purchase money. Davison v. Schuler, 47 Mich. 598; 41 Am. E. 734; 
 note, p. 737. Husband drove his wife's wagon with her consent and left it for re- 
 pairs. Held that the lien existed. White v. Smith, 15 Vroom, 105; 43 Am. E. 347. 
 
 » § 2475 as amended. Acts 1895-6, p. 71; Code W. Va., Ch. 75. 
 
 ' I 2476 as amended. Acts 1897-8, p. 487. See also Merchants and Mech. Sav. 
 Bank v. DashieU et ah, 25 Grat. 616; Hendricks by Stuart v. Fields, 26 Grat. 
 447; Wroten's Assignee v. Armat el als, 31 Grat. 228; Am. & Eng. Encyc. of Law, 
 Vol. 11, p. 38 et seq. 
 
 '■Ante, I 135, Div. 9. 
 
584 REMEDIES .PROVIDED BY STATUTE. § 167 
 
 from the erection or operation of works of a public character, and 
 the express provision of the statute ^ is that no order shall be 
 made, or any injunction awarded, by any court or judge to stay 
 the proceedings of the company, county or town in the prosecu- 
 tion of the work, unless it be manifest that they, their oiScers, 
 agents or servants, are transcending their authority, and that the 
 interposition of the court is necessary to prevent injury that can- 
 not be adequately compensated in damages. 
 
 Under the construction given by the court of appeals of Vir- • 
 ginia to the statute, an injunction was refused to a canal company 
 against a railroad company which proposed to construct its rail- 
 road across the canal, the injury to the canal company being such 
 as could be adequately compensated in damages ; ^ and it was fur- 
 ther held that no injunction could be granted in such cases unless 
 the company was both transcending the authority given by its 
 charter and the injury consequent thereon could not be adequately 
 compensated in damages.^ 
 
 It is not permitted, however, to any company to go upon private 
 property and take it for public use without just compensation, and 
 the statute was devised for the express purpose of accomplishing 
 that end, and yet at the same time to prevent the progress of the 
 work from being unreasonably hindered or delayed.* Hence the 
 statute makes provision in some cases by the writ of ad quod 
 damnum, and in others by the appointment of commissioners for 
 the assessment of damages before the land will be allowed to be 
 taken,' and for the payment by the company into court of the sura 
 
 1 ? 1081; Code W. Va., Ch. 42, § 20. 
 
 ' Tuckahoe Canal Co. v. Tuekahoe Railroad Co., 11 Leigh, 42; Stevens e( ah 
 V. Davison, 18 Grat. 819; Horsely v. E.. & A. R. R. Co., Clianoery Court Rich- 
 mond City, Va. Law Journal 1882, p. 245. 
 
 ' James River and Kanawha Co. v. Anderson et al, 12 Leigh, 278; High on In- 
 junctions, ? 762. * Rep. of Rev., p. 327, note. 
 
 5 Code, Ch. 46; Code W. Va., Ch. 42. "That private property shall not be 
 taken or damaged for public use without just compensation," is the language of the 
 statute of West Virginia. For a construction of this statute, see Mason v. Harper's 
 Ferry Bridge Co., 16 W. Va. 864; 17 Id. 396. See 2 Barton's Law Pr., p. 1295. 
 
§ 168 RELIEF AGAINST USURIOUS TRANSACTIONS. 585 
 
 SO assessed; and thereupon the work may go on, although the 
 report of the commissioners be not confirmed, but a new set is ap- 
 pointed to view the land ; ' and although the persons to whom the 
 money must be paid have not yefbeen ascertained in the way pro- 
 vided by statute. 
 
 With regard to the persons who are entitled to payment of the 
 damages or compensation, it has been held that if a company 
 enter lawfully upon land, or unlawfully when its entry will be re- 
 garded as a trespass ; in either case the right to compensation is a 
 personal claim which does not rim with the land. Hence, where 
 injury was done to land by the construction of a railroad thereon, 
 and the owner afterwards sold it, saying nothing in the deed about 
 the claim to compensation, and the railroad company paid it to the 
 vendee, the original owner was declared to be entitled to recover 
 the amount from the vendee.^ 
 
 Relief Against Usurious Transactions. 
 
 § 168. The statute of Virginia^ provides that any borrower of 
 money, or other thing, may exhibit a bill in equity against the 
 lender, and compel him to discover upon oath the money or thing 
 really lent, and all bargains, contracts or shifts relative to such 
 loan, and the interest or consideration of the same ; and if it ap- 
 pear that more than lawful interest was reserved, the lender shall 
 receive only his principal money or other thing ^ without interest, 
 and pay the costs of suit. If property has been conveyed to secure 
 the payment of a 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. 
 
 1 Code, i 1081. 
 
 ' McFadden v. Johnson, 72 Penn. St. 335; 13 Am. E. 681. ' Code, ? 2822. 
 
 * Code W. Va., Ch. 97, § 7: "with six per cent, interest only, but shall recover 
 no cost." The rule, as settled by the decided cases, was that in such case the bor- 
 rower, resorting for relief to a court of equity, should, but for the statute, pay the 
 principal and legal interest. Clarkson's Adm'r v. Grarland et ali, 1 Leigh, 147; 
 Turpin v. Poval et als, 8 Leigh, 453; Martin v. Hall, 9 Grat. 8; Mosely, Trustee, 
 V. Brown et ah, 76 Va. 423. 
 
586 EEMEDIES PROVIDED BY STATUTE. § 168 
 
 It was also formerly provided, that any judgment creditor who 
 apprehended that he was in danger of loss by reason of usurious 
 dealings on the part of his debtor, might exhibit his bill in equity, 
 verified by affidavit, against the party with whom the dealings 
 were had, and compel him to discover on oath all bargains, con- 
 tracts or shifts relative to such dealings ; and if it appeared that 
 more than legal interest had been received, the excess above that 
 rate, or so much thereof as might be necessary, was to be applied 
 to the plaintiff's demand. Such a bill had to be filed within five 
 years after the receipt of the illegal interest ; ^ but this statute is 
 no longer in force.* 
 
 It was also formerly further provided that upon a bill requiring 
 no discovery of the defendant, but praying an injunction to pre- 
 vent the sale of property conveyed to secure the repayment of a 
 sum of money or other thing borrowed at usurious interest, the 
 court shall cause an issue to be made, and tried at its bar by a 
 jury, whether or no the transaction be usurious. On the trial of 
 such issue, neither the bill nor the answer shall be given in evi- 
 dence. If the jury found the transaction usurious, then the same 
 relief was given as if the party claiming under the conveyance 
 had resorted to the court to make his claim available. The court 
 could grant new trials as in other cases.^ But this provision was 
 omitted from the Code of 1887.* 
 
 > This was ? 11, Ch. 137, Code 187^, and subsequently ? 2824, Code 1887. But 
 this was repealed by act of January 24, 1894, Acts 1893-4, p. 76. This section, 
 while in force, was held to have no application to a bUl requiring a discovery 
 (Keagy et als v. Trout et als, 85 Va. 390) under the other section of the statute; 
 and under this section the excess over legal interest was held applicable to satisfy 
 the judgment. Eyan v. Krise, 89 Va. 728. 
 
 ' A court of equity wUl, however, interfere with a judgment at law by default to 
 relieve against usury, and the change in the statute declaring that usurious con- 
 tracts shall be deemed to be for an illegal consideration instead of void, does not 
 change the doctrine authorizing equity to relieve against a judgment so obtained 
 by default. Greer v. Hal'e, 95 Va. 533; 28 S. E. B. 873; Bank v. Fugate, 93 Va. 821. 
 
 » 5 12, Ch. 137, Code 1873. 
 
 * Edmunds' Ex' or v. Bruce, 88 Va. 1010. While this statute was in force the 
 court of appeals of Virginia held (Meem v. Dulaney et al, 88 Va. 674), that un- 
 
§ 169 RELIEF AGAINST GAMBLING TRANSACTIONS. 587 
 
 Relief against Gambling Transactions. 
 
 § 169. If any person shall lose to another, within twenty-four 
 hours, seven dollars ^ or more, or property of that value, and shall 
 pay or deposit the same, such loser may file a bill in equity against 
 such winner, who shall answer the same ; and upon discovery and 
 repayment of the money or property so won, or its value, such 
 winner shall be discharged from any forfeiture or punishment 
 which he may have incurred for winning the same. The limita- 
 tion to a suit to recover money or property thus lost is three 
 months after its payment or delivery.^ 
 
 Sale of Estates of Persons v/nder a Disability. 
 
 § 170. Besides the summary method provided by statute^ for 
 renewing or surrendering leases in which infants, insane persons 
 and married women are interested, by petition or motion to the 
 circuit or corporation court, and a similar provision in the Code of 
 West Virginia' for the sale of the estate of such persons, it is 
 
 der it the borrower was entitled to be relieved from the payment of aU save the 
 principal, and to have all payments made on account of interest deducted from the 
 principal. The accuracy of this conclusion was ably challenged by Mr. E. S. 
 Thomas in an article published in 16 Va. Law Journal, p. 507 to 621, and the case 
 of Meem v. Dulaney was . subsequently completely overruled by the case of Mun- 
 ford V McVeigh's Adm'r, 92 Va. 446, which establishes the rule that in a suit to 
 enjoin a sale under a deed of trust, a court of equity will not, after the year within 
 which usurious interest may be recovered at law, apply any part of the payments of 
 usurious interest in deduction of the principal. See Code, J 2823 as amended by 
 act of February 14, 1898, Acts 1897-8, p. 372. In any case at law or in equity, 
 if the usury be established, the measure of relief will be that the lender can only 
 recover the principal sum. Greer v. Hale, 95 Va. 533; 28 S. E. E. 873. When 
 payments have been made on an usurious debt and the debtor has failed to apply 
 the payments specifically, the com-t should first eliminat^the usury, if any, from 
 the principal of the debt, and apply the payment to the sum actually loaned or 
 forborne. Munford, Trustee, v. McVeigh, 92 Va. 446. 
 
 1 Ten dollars in West Virginia. Code W. Va., Ch. 97,- M % 3. 
 
 '^ Code, II 2837, 2838. Eflfect of answer to such a billj see Ante, 127, Div. 8. 
 Control of courts of equity over judgments rendered on gambling debts, see Ante,, \ 7. 
 
 ' Code, I 2615. 
 
 *Code W. Va., Ch. 84. For rules as to conclusiveness of decree for sale of an 
 infant' s estate, see note on p. 425, 53 Am. Dec. 
 
588 EEMEDIES PROVIDED BY STATUTE. § 170 
 
 provided,^ that the estate in which such persons are interested may 
 be sold or exchanged under proceedings instituted by guardians, 
 committees and trustees. This is done by a bill filed in the circuit 
 court ^ of the county or corporation court of the corporation in 
 which the estate or some part thereof is. This bill must state 
 plainly all the estate, real and personal, belonging to any such 
 person. It must be verified by the oath of the plaintiff, and the 
 infant or insane person, or the beneficiaries of the trust and the 
 trustee (when not plaintiffs), and all others interested, must be 
 made defendants ; and also, where there is an infant or insane de- 
 fendant, all those who would be his heirs or distributees, if he 
 were dead, must be made parties. To every infant or insane de- 
 fendant there must be appointed a guardian ad litem, who, as well 
 as- the infant (if over fourteen years of age), must answer the bill 
 on oath in proper person. 
 
 The depositions in the case, in order to be read, must be taken 
 in the presence of the guardian ad litem,^ or upon interrogatories 
 agreed on by him ; and if it is clearly shown, independently of 
 any admissions in the answers, that the interests of the insane per- 
 son, or beneficiaries in the trust, as the case may be, will be pro- 
 moted, and the court is of opinion that 1;he rights of no person 
 will be violated thereby, it may decree a sale of the estate, or any 
 part thereof, or exchange of the real estate, taking from the pur- 
 chaser, when the sale is on credit, ample security ; and if the sale 
 be of real estate, retaining a lien thereon.* 
 
 * Code, I 2616, as amended by acts March 5, 1888, Acts 1887-8, p. 503, and May 
 1, 1888, Acta 1887-8, p. 239, providing also for an exchange of the real estate of 
 an infant. Code of W. Va., Ch. 84, § 12 to § 18, provides that the guardian ad 
 litem must be present at Ihe hearing. 
 
 « Code, ? 2619; Code W. Va., Ch. 83, ?? 2, 5, 12, 13, 14, 15 and 17 being amended 
 by act of February 12, 1897, Acts 1897, p. 77. 
 
 » This rule is confined to sales under H 2435, 2619, and does not apply to cases 
 generally to which infaj^ts are parties in interest. In the latter cases all that is 
 needed is notice to the guardian ad litem, such as any other party is entitled to 
 Moore v. Triplett, Va. ; 23 S. B. E. 69. 
 
 * Code, § 2620, as amended by act of March 5, 1888, Acts 1887-8, p. 504, and 
 May 1, 1888, Acts 1887-8, p. 240. For the rules as to the regularity of proceed- 
 
§ 1^0 SALE OF ESTATE OF PERSONS UNDEE DISABILITY. 589 
 
 Provision is also made by the statute for the release of the dower 
 of the wife of any infant or insane person/ and for the security 
 and investment of the funds when the sale is made. 
 
 It has been held that the authority thus to sell the estate of 
 persons under a disability is not a matter inherent in the courts, 
 but is wholly derived from statute ; ^ but the statute being remedial 
 in its nature, should receive a liberal construction, so as to enhance 
 the remedy meant to be provided.' 
 
 It is of common occurrence, in some of the States, that the 
 legislature itself directs the sale of an infant's real estate ; and 
 such acts have been held to be constitutional, even though the in- 
 fant be a non-resident.* Whether done by the legislature or the 
 statute, no limit is fixed as to the character of estate which may 
 be sold, hence the authority of the statute has been construed to 
 relate to land in which infants have an interest, whether in posses- 
 sion or remainder, vested or contingent, if the proper parties can 
 be brought before the court, or are represented there.* 
 
 The revisors of the Code ^ reported a provision, which was not 
 
 ings in such cases, see Fowler v. Lewis' Adm'r, 36 W. Va. 112; Lancaster el al v. 
 Barton et al, 92 Va. 615. 
 
 * Code, ? 2625 as amended by Acts 1895-6, p. 260. See McMorris v. Wells, 17 
 S. C. 558; 43 Am. K. 629. The proceeding under the statute must be inter partes, 
 the wife must be made a party thereto, and after notice have an opportunity of 
 being heard, or else the proceeding is void. Hess v. Gale, 93 Va. 467. 
 
 "Fatdlmer et ah v. Davis et ah, 18 Grat. 663; Pierce v. Trigg, 10 Leigh, 406; 
 Bakers. Lorillard, 4 Com. St. 257; Leading Cases in Equity, Vol. 2, Pt. 2, p. 
 1504. Power held to be inherent in the legislature in Dodge v. Cole, 97 111. 338; 
 37 Am.' E. 11; Goodman v. Winter, 64 Ala. 410; 38 Am. E. 13; Hoback v. MiUer, 
 W. Va. ; 29 S. E. E. 1014. So it was held that a widow, merely on her right 
 to dower, cannot file a bill to sell the heirs' fee simple and get money from its sale 
 in lieu of dower in kind. Id. 
 
 ' Faulkner et ah v. Davis et ah, 18 Grat. 663; Troth v. Eobertsou, 78 Va. 53. 
 
 'Adams' Equity [285], note. When such acts held to be unconstitutional, see 
 Jones V. Perry, 10 Yerger, 59; 30 Am. Dec. 430, 445, notes. Constitution of Vir- 
 ginia forbids legislature to act by special legislation. Art. 5, § 20. See also Davie 
 V. Johnormot, 7 Metcalf, 388; 41 Am. Dec. 448; note, 455. 
 
 ^ Hawthorne v. Beckwith, 89 Va. 790; Faulkner et ah v. Davis et ah, 18 Grat. 
 651-684; Baylor v. DeJamette, 13 Grat. 152. 
 
 •Eeport of Kevisora, 1849, Ch. 128, § 6. 
 
590 REMEDIES PROVIDED BY STATUTE. § 170 
 
 adopted by the legislature, that such sale shall not be decreed if 
 the testator or grantor shall expressly have directed otherwise in 
 the will or other writing under which the land is held ; but upon 
 this point it has been held,* that the courts will not decree a sale 
 where the will expressly directs that the property shall not be sold ; 
 yet, in the absence of such an absolute prohibition, and when it is 
 proved that the sale will benefit those interested, it will be so de- 
 creed.^ The proceedings under the statute should follow strictly 
 its provisions ; but where the bill did not formally aver that the 
 suit was brought by the plaintiff as guardian, but stated that he 
 was guardian, and the bill was otherwise in pursuance of what is 
 required to be set out in such a case, and the infants were made 
 parties, it was held to be substantially a proceeding under the 
 statute, and that the omission of the formal averments did not 
 vitiate the proceedings.^ 
 
 To omit the answer of an infant over fourteen years is irregu- 
 lar ; but the court, if it deems it necessary for the purchaser, may 
 direct the infant to file an answer after the objection is made.' A 
 sale of the infant's land cannot be made on a bill filed by them 
 against their guardian, and such a bill, when filed by their next 
 friend, was held to be demurrable.'' 
 
 The guardian, committee, etc., cannot purchase * at his own sale ; 
 but after the estate is fairly sold, and for the interest of the cestui 
 que trust, infants, etc., so that the trustee or guardian is restrained 
 from being a purchaser directly or indirectly, there seems to be no 
 
 ' Talley et al v. Starke's Adm'x et als, 6 Grat. 346. = Ibid. 347. 
 
 ' Cooper V. Hepburn et ah, 15 Grat. 551. See also Cole's Committee v. Cole's 
 Adm'r, 28 Grat. 365. 
 
 * Cooper V. Hepburn et als, 15 Grat. 551. 
 
 ^ Snavely v. Harkrader et al, 29 Grat. 112. It is error to decree the sale of an 
 infant's land without an answer by the guardian ad litem, and the answer must be 
 filed— not merely placed among the papei-s. Ewing's Adm'r et als v. Ferguson's 
 Adm'r et als, 33 Grat. 548. 
 
 " Trustee cannot purchase. Scott v. IVeeland, 7 S. & M. 409; 45 Am. Dec. 310; 
 Harrison v. Manson, 95 Va. 593. Administrator cannot. Pearson et al v. More- 
 land el al,7S.& M. 609; 45 Am. Dec. 319. 
 
§ 171 AWARDS. 591 
 
 good reason at any time after to prevent his purchasing the prop- 
 erty by a contract bona fide, unconnected with the first sale ; ^ and 
 after the land has been purchased by a guardian, etc., and by him 
 sold to a third person, the sale to such person cannot be impeached 
 as void under the statute, unless it is alleged and proved that the 
 third party had notice that the committee, guardian, of trustee 
 was the purchaser, directly or indirectly.^ Even a sale to the 
 guardian, committee, etc., although expressly forbidden by the 
 statute, is not void, but merely voidable, and hence it cannot be 
 impeached in a collateral suit or proceeding.' 
 
 A purchaser at such a sale, as is true of any other judicial sale, 
 may be required to see to the regularity of the proceedings upon 
 which the jurisdiction of the court is founded ; but he is not 
 bound to investigate the truth of the matter stated in the bill, and 
 deposed to by the witnesses touching the estate owned by the in- 
 fant, for his title cannot be aifected, because the case made by the 
 record happens not to be warranted by the facts.* 
 
 Awards. 
 
 § 171. The statute ° provides for the submission to arbitration 
 of disputed matters, whether they are or are not involved in pend- 
 ing suits, and for the entry of judgments on the awards returned 
 thereon ; and it then declares that no such award shall be set aside, 
 except for error apparent on its face, unless it appears to have 
 
 1 Keport of Eevisors, 1849, p. 660. 
 
 ' Carter *. Allen et als, 21 Grat. 247. 
 
 ' Cline's Heirs v. Catron, 22 Grat. 378. 
 
 * Durrett v. Davis, Guardian, 24 Grat. 302. For the rights of purchasers at 
 judicial sales, see Fast. 
 
 '' Code, Ch. 143; Code W. Va., Ch. 108. Who may submit to arbitration. Code, 
 2 3010. Fiduciaries. By permisssion of court in W. Va. Code, Ch. 108, J 5. 
 Generally, committees, agents, attorneys (but not as such; 13 W. Va., 30, and 1 
 Barton's Law Pr., p. 580, and numerous cases cited), married women, partners, 
 persons jointly interested, officers of a corporation, public officers, executors and 
 administrators, assignees in bankruptcy, &c. 1 Barton's Law Pr. 580, note; 30 
 Am. Dec, pp. 626 to 634; Bank v. Widner, 11 Paige, 529; 43 Am. Dec. 768; 
 note, 772; 48 Id. 732. 
 
592 EEMEDIES PKOVIDED BY STATUTE. § 171 
 
 been procured by corruptiou or other undue means, or that there 
 was partiality, or misbehavior in the arbitrators or umpires, or 
 any of them.' But the, same statute further declares, that " this 
 section shall not be construed to take away the power of courts of 
 equity over awards." 
 
 Two ways, therefore, are pointed out by which an objection to 
 an award may be made : by bill in equity for relief,^ or where the 
 submission has been made a rule of any court of law, by showing 
 good cause against it when the parties have been duly summoned 
 for that purpose.' , 
 
 The jurisdiction of the courts of law to set aside an award is 
 confined to cases where error is apparent on the face ; where cor- 
 ruption or other undue means have been used, or where there is 
 partiality or misbehavior in the arbitrators or umpires, or any of 
 them ; '' and it has been held, that where the objection to the award 
 is available in a court of law, but the party neglects to use his 
 opportimity, and there is no surprise or fraud, a court of equity 
 will not grant relief.^ But where the error was not apparent on 
 the face, but it was clearly proved by other evidence that the ar- 
 bitrators had been guilty of a plain, gross ^ and palpable mistake 
 of law, it was held that a court of equity would take jurisdiction 
 to correct it.' 
 
 When, too, the submission to arbitration is in pais, there is no 
 remedy against the award at law,' and resort must be had to a 
 court of equity ; for when a suit is brought at common law on an 
 
 ' Code, 2 3009; Code W. Va., Ch. 108, § 4. 
 ' Minor's Institutes, Vol. 4, Pt. 1, p. 151. 
 'Code, ? 3008; Code W. Va., Ch. 108, § 3. 
 
 * Shipman v. Fletcher, 82 Va. 601. 
 
 ' Wheatley v. Martin's Adm'r, 6 Leigh, 62. 
 ' City of Portsmouth v. Norfolk County, 31 Grat. 727. 
 
 ' Moore v. Luckeas, 23 Grat. 160. See also Smith v. Cutler, 10 Wend. 589; 25 
 Am. Dec. 580; notes, 581. 
 
 * Minor's Institutes, Vol. 4, Pt. 1, p. 153. A mere agreement to submit to ar- 
 bitration cannot be specifically enforced in the courts. Corbin et als v. Adams et 
 ah, 76 Va. 78. 
 
§ 171 AWARDS. 693 
 
 award, no extrinsic circumstance, no matters dehors the award, 
 even though they be of fraud, partiality, misconduct or mistake 
 of the arbitrators, can be pleaded or given in evidence to de- 
 feat iV 
 
 The statute has also somewhat restricted the former power of 
 the courts of law, and thus rendered resort to a court of equity 
 necessary ; for instance, if an award be shown to be erroneous, 
 not by anything on its face, but by papers and exhibits already in 
 the cause, which the arbitrators must have had before them, and 
 by which they plainly designed to give their award, since the 
 statute a court of law would have no power to set the award 
 aside ; and hence resort must be had to a court of equity, in order 
 that the accompanying papers may be inspected and the error 
 corrected.^ 
 
 Subject to these general observations as to the jurisdiction of 
 courts of equity, and their peculiar rules of construction, we will 
 consider the essentials to a proper submission and award in either 
 tribunal. 
 
 A submission to arbitration is a waiver of objections to pre- 
 vious proceedings in the cause ; ^ and so it has been held that where 
 an injunction was improperly granted, but the parties to the suit 
 referred all disputed matters therein to certain arbitrators, mutually 
 chosen, and consented that their award should be the decree of the 
 court, this consent was regarded as binding ; and the whole case, 
 including the questions of law, was thereby transferred from the 
 court to the arbitrators.^ 
 
 The rule is that a submission is revoked by the death of an arbi- 
 
 ' Story's Equity Jurisprodence, ? 1452. 
 
 ' Minor's Institutes, Vol. 4, Pt. 1, p. 153. When all the parties in interest are 
 before the court on a bill to set aside an award of arbitration and enjoin an action 
 on the award, on grounds which give the court jurisdiction, the court may decide 
 the whole controversy, and render a final decree, though all the issues are legal in 
 their nature, and the legal remedies therefor are adequate. Coons v. Coons, 95 
 Va. 434; 28 S. E. E. 885. 
 
 •' Ligon V. Ford, 5 Munf. 10. 
 
 • Brickhouse v. Hunter et ctfe, 4 H. & M. 363. 
 38 
 
594 EEMEDIES PEOVIDED BY STATUTE. §171 
 
 trator, or of either party, or by his lunacy or bankruptcy, or the 
 marriage of a feme covert; ' but where a party to a suit died after 
 the submission and the cause was revived by the administrator, the 
 death was held not to avoid the submission or the award made 
 under it.^ 
 
 A partial submission is binding upon the parties to it, so far as 
 their interests are concerned ; ^ but a submission by infants, although 
 made by a rule of court, and with adults, is not obligatory upon 
 either party.* The agreement to submit need not be in writing," 
 and it may be made in court by the parties in person or by their 
 counsel. 
 
 The arbitrators must pass upon the case as made up by the 
 pleadings ; but this rule was held not to prevent an issue for an 
 award being properly presented in a case where there was an office 
 judgment confirmed, a writ of enquiry directed, and no plea setting 
 aside the judgment. ° 
 
 The arbitrators to whom the submission is made should all act, 
 but there may be a submission to a majority of a number of per- 
 sons named. In one case ' there was a reference to four arbitrators, 
 " or any three," and afterwards two others were added ; two of the 
 first named arbitrators and one of the last made an award, and it 
 was held to be sufficient. 
 
 The award must follow the submission, but must not exceed its 
 terms, in respect either of the subject-matter or the time allowed 
 
 1 Minor's Institutes, Vol. 4., Pt. 1, p. 141. 
 
 ' Wheatley v. Martin's Adm'r, 6 Leigh, 62. Held that a submission is revoked 
 by the death of one of the parties before an award is made unless there is a pro- 
 vision to the contrary in the submission itself. Bailey v. Stewart, 3 Watts & Ser- 
 geant, 560; 87 Am. Dec. 50. Generally a submission is revocable by either party 
 at anytime before an award has been made. Am. & Eng. Encyc. of Law, Vol. 1, 
 p. 664, and notes. 
 
 ' Boyd's Heirs v. Magruder's Heirs, 2 Bob. 793. 
 
 • Britton v. Williams' Devisees, 6 Munf. 453. 
 ^ Bierley v. Williams, 5 Leigh, 700. 
 
 * Sutton V. Dickenson, 9 Leigh, 142. 
 ' Coupland v. Anderson, 2 Call. 106. 
 
§ 171 AWARDS. 595 
 
 for pronouncing the award.' Where the submission, requires the 
 award to be under seal, it is void unless rendered in that way ; but 
 unless otherwise directed in the submission th? award may be by 
 parol or in writing, and either sealed or unsealed as the arbitrators 
 prefer.^ But if the award be in pursuance of a rule of court it 
 must always be in writing.^ 
 
 The former strictness in the construction of awards under sub- 
 missions has been greatly relaxed, and is now governed by the 
 rules of common sense. It is now held that all fair presumptions 
 shall be made in favor of an award, and if on any such the award 
 may be brought within the submission, it will be sustained.'' Un- 
 der this more liberal construction, when an award settles matters 
 that are not in the submission, the court may reject the excess, and 
 render judgment on so much of the award as is fairly within the 
 submission.' 
 
 The doctrine that awards must be mutual, in the sense that that 
 term was formerly understood, which was that the award would 
 be void unless something was awarded on both sides, has long since 
 been declared to be exploded ; ° but it is none the less necessary 
 that the award shall be certain, for if uncertain on its face, or 
 not referring to something that is certain, it is void.^ 
 
 The award should be returned to the court as soon as possible 
 after it is rendered, or if it is an agreement out of court it should 
 
 > Minor's Institutes, VoL 4, Pt. 1, p. 142. 
 
 ' Ibid. p. 143. 
 
 ' Ibid. Held void where arbitrators were not sworn. Com' rs v. Little, 3 Green 
 Chy. 310; 40 Am. Deo. 207. Must not exceed terms of submission. Johnson *. 
 Noble, 13 N. H. 286; 38 Am. Dec. 485. Void if arbitrator exceeds his powers. 
 Stewart v. Cass, 16 Vt. 663; 42 Am. Dec. 534. Void where he failed to give 
 notice. 48 Am. Deo. 580; note, 586. For discussion of void, voidable and valid 
 awards, see Am. & Eng. Encyc, Vol. 1, p. 706 to 711. 
 
 'Armstrong v. Armstrong, 1 Leigh, 491; Pollock's Adm'r v. Sutherlin, 25 
 Grat. 78. 
 
 ■^ Martin v. Martin, 12 Leigh, 495. 
 
 ' HorreU v. McAlexander, 3 Band. 100. 
 
 ' Cauthorn v. Courtney, 6 Grat. 381. 
 
596 EEMEDIES PEOVIDED BY STATUTE. § 171 
 
 be delivered to the proper parties ; ^ but if, being, in pursuance of 
 the submission, final in its character, it is read to the parties as 
 and for an award, it is complete and conclusive, although not 
 actually delivered.' 
 
 Upon the return of the award a rule must be issued (unless it 
 is waived) to show cause why it should not be entered up as the 
 judgment of the court. If no cause be shown, the judgment will 
 be entered at the first term after the parties have been sum- 
 moned ; but by consent, or by an order of the court, upon good 
 cause being shown for a continuance, the entry of the judgment 
 may be postponed when no cause against the aw&rd has been 
 shown. The judgment, if entered, must be according to the 
 award, but the court may give costs when they have not been 
 awarded by the referee.' 
 
 The statute, as we have already seen, defines what constitutes 
 cause sufficient to justify the court in refusing to render judgment 
 upon an award,^that is, error apparent on the face of the award ; 
 when it has been procured by corruption or other undue means ; 
 or for partiality or misbehavior in the arbitrators or umpires, or 
 any of them. 
 
 Error apparent on the face may be upon the award itself, or 
 upon any paper accompanying it, drawn up at the same time, and 
 evidently connected with it.* It must be some paper, however, 
 that was intended to explain, add to, or supply some omission in 
 the award J for where, for the convenience of all, notes of the 
 evidence were taken in the case in which the arbitrators disagreed, 
 and the umpire rendered the award, but did not refer to the evi- 
 dence, the notes, although returned to the clerk with the award, 
 
 ' But delivery is not essential, unless it is provided for in the submission. Byars 
 V. Thompson, 12 Leigh, 550. 
 
 ' Pollard V. Lumpkins, 6 Grat. 398. 
 ' Coupland v. Anderson, 2 Call. 106. 
 
 'Pleasants, &c. v. Boss, 1 Wash. 158. An express agreement to abide an 
 award is not essential to its validity. Stewart v. Cass, 16 Vt. 663; 42 Am. Deo. 534. 
 
§ 171 AWARDS. 597 
 
 were not regarded as a part of it, so that they might be considered 
 in a motion to set aside the award.' 
 
 The principle upon which an award may be set aside for error 
 upon its face is not in contravention of the general rule that 
 parties cannot object to the award because it is an unreasonable 
 judgment, or against law ; but it is a part of the same rule founded 
 on the same principle.' The award is set aside, not because the 
 judgment, when unreasonable and against law, does not bind the 
 parties, but on the ground that the arbitrators have not given the 
 judgment which they desired and intended to give. Therefore the 
 court, carrying the true intention into effect, so far at least as not 
 to bind the parties by a decision contrary to that intention, will 
 set aside the award.^ 
 
 In the case of Brickhouse v. Hunter, Banks & Co., 4 H. & M. 
 863, in which this doctrine is fully illustrated, the arbitrators de- 
 cided that certain vouchers were not necessary to be produced, 
 but submitted to the court the propriety of this decision in point 
 of law, stating the grounds and reasons for their opinion. Here 
 it was apparent that the arbitrators desired and intended to decide 
 according to law. They desired the court to settle the question of 
 law, and hence had it, though differing with them in opinion, 
 nevertheless affirmed their award, the award thus affirmed would 
 not have been in accordance with their intention. 
 
 But suppose the arbitrators do not submit such a question to the 
 court, but decide upon the law without reference to the court's 
 opinion, and all the facts appear in the award, can it be said that 
 an erroneous determination of the law in such a case is error upon 
 the face of the award, and cause sufficient to prevent the court 
 from entering it up ? 
 
 ^ Basset v. Cunningham, 9 Grat. 684; Moore v. Luckess, &c., 23 Grat. 160. 
 
 ^ Minor's Institutes, Vol. 4, Pt. 1, p. 152. 
 
 ' Hollingsworth v. Lupton and Wife, 4 Munf. 117. See also Halstead v. Sea- 
 man, 82 N. Y. 27; 37 Am. B. 536; Byars v. Thompson, 12 Leigh, 550, as reported 
 in 37 Am. Dec. 680. After the arbitrators have rendered an award it is binding 
 
598 REMEDIES PROVIDED BY STATUTE. § 171 
 
 Great respect, says a distinguished author/ is paid to the award 
 upon an unmixed question of law, of a professional arbitrator, nor 
 can it be set aside unless an illegality appears on the face of it. 
 
 In the case of Lunsford v. Smith, 12 Grat. 555, in which the 
 controversy was about certain slaves, the parties agreed, out of 
 court, to submit their dispute to the award of Mr. Benjamin Wat- 
 kins Leigh. At the time of this agreement to submit, Lunsford 
 purchased the slaves of Smith, and executed his bond for them, 
 conditioned that if Mr. Leigh decided in his favor, the bond was 
 not to be paid; but, if otherwise, then it was to be good and valid. 
 Mr. Leigh decided the law governing the matter referred to him, 
 subject to the existence of a certain state of facts which were then 
 yet to be ascertained. Smith thereupon instituted suit upon the 
 bond, and, after the evidence was in, Lunsford asked the court 
 to instruct the jury in accordance with the law as settled by Mr. 
 Leigh. The court refused ; but upon appeal the appellate court 
 reversed the case, and held that Mr. Leigh's decision, whether 
 sound law or not, was the law of that case, and the parties were 
 bound by it. 
 
 The rule, therefore, seems to be clear, that if the intention of 
 the arbitrators is plain upon a certain state of facts, their deter- 
 mination of the law upon those facts will be final, and not subject 
 to revision in that case, although it be in general not sound law.^ 
 
 If, however, the decision is based upon an assumed fact referred 
 to in the award, and not upon a conclusion reached by the arbi- 
 trators upon doubtful and conflicting testimony, and that assumed 
 fact does not exist, that will be deemed error on its face, and to 
 render judgment upon such an award would not be in accordance 
 with the intention of the arbitrators. 
 
 on the parties, and can be successfully impeached only on grounds which would 
 invalidate any other judgment. Corbin el als v. Adams et als, 76 V^a. 58. 
 
 ' Minor's Institutes, "Vol. 4, Pt. 1, p. 152. 
 
 '' City of Portsmouth v. Norfolk County, 31 Grat. 727. When two propositions 
 of law are stated in the award, the court will presume the awai-d to have been based 
 on the one that is correct. Willoughby v. Thom&, 24 Grat. 521. 
 
§ 171 AWARDS. 599 
 
 In the case of HolHngsworth v. Lupton and Wife, 4 Munf. 118, 
 it was thought that if arbitrators should decide a case arising under 
 a will, referring to the will in their award, and stating that as the 
 only ground of their decision, on an application to set aside the 
 award for error in law, the court would perhaps look into the will 
 and compare it with the award. But where the arbitrators in the 
 award state other grounds for their decision, and say that they 
 made up the award " from the proofs adduced to them, from the 
 terms of the will, and from the evident intention of the testator," 
 and it does not appear what those other proofs are, the case cannot 
 come within the rule which authorizes the courts to set aside an 
 award for error apparent on its' face. A decision of a question of 
 law, or of fact, or of both plainly indicated in the same award, 
 though the conclusion be erroneous, is not error upon the face, and 
 does not subject the award to the revision of the court.' 
 
 An award may also be set aside for corruption or other undue 
 means, and for partiality or misbehavior on the part of the arbi- 
 trators, or any of them ; ^ and for after-discovered evidence.' 
 
 All misconduct or misbehavior is not corrupt or partial, but 
 without being so, it may yet suffice to set aside the award. 
 
 In one case,* the arbitrators held one meeting and adjourned to 
 procure other witnesses, without appointing a day for their next 
 meeting. They met again and made up their award at the request 
 of one of the parties, the other not knowing of the meeting, and 
 having a few days before written to one of the arbitrators that he 
 had important information for them, and desired to be present at 
 their next meeting. This was held to be misconduct. 
 
 Where the arbitrators received a paper as evidence without the 
 knowledge or consent of one of the parties to the submission, 
 
 ' Basset V. Cunningham, 9 Grat. 684; Willoughby v. Thomas, 24 Grat. 521. 
 ' Dickinson v. Bailroad Company, 7 W. Va. 393. 
 
 • Adams v. Hubbard, 25 Grat. 129. 
 
 * McCormick v. Blackford, 4 Grat. 133. 
 
600 REMEDIES PROVIDED BY STATUTE. § 171 
 
 although they said that their opinions were formed before it was 
 received, their award was declared to be void.' 
 
 In one case^ an award was set aside because the arbitrators 
 admitted the deposition of the defendant and his wife to be read 
 in evidence ; and in another case ^ (a case of crim. con.) the arbi- 
 trators refused to hear testimony impeaching the plaintiff''s wit- 
 nesses, or touching the deportment of the plaintifffs wife before 
 seduction, and this was held to be such misconduct as io vitiate the 
 award. 
 
 In the case of Lee v, Patillo, 4 Leigh, 436, the conduct of the 
 arbitrators did not amount to corruption ; but they were so indif- 
 ferent and careless, and showed such lack of discrimination, or 
 rather of desire to discriminate, and such injustice was done by 
 their award, that the court, without, as they said, doing violence to 
 any of the principles governing such cases, set aside the award. 
 
 In the case of Graham v. Pence, 6 Eand. 529, the arbitrators 
 had a meeting, and the defendant asked a continuance for an ab- 
 sent witness, which the arbitrators granted, and then determined 
 to have nothing further to do with the case, and drew up a writing 
 to that effect, which they communicated to the parties. But after- 
 wards the plaintiff had a private conversation with one of the 
 arbitrators, and prevailed on him to resume the arbitration, and 
 then gave notice to the defendant to appear at a certain time and 
 place. The defendant appeared, but protested against the arbi- 
 
 ' Jenkins v. Liston, 13 Grat. 535. An award is generally as conclusiTe as a judg- 
 ment, and cannot be impeached for extrinsic causes other than partiality, corrup- 
 tion or gross misbehavior. Surpass «. Webb, 4 Porter, 65; 29 Am. Dec. 274; note, 
 p. 277. See Am. & Eng. Encyc. of Law, Vol. 1, p. 706 to 710. Can only be im- 
 peached on grounds that would invalidate any other judgment. Corbin et cUs v. 
 Adams et als, 76 Va. 58. As to Irregularities, see Eand's Adm'r v. Eedington, 13 
 N. H. 72; 38 Am. Dec. 475. Where arbitrator had conversed with former arbitra- 
 tor whose award had been set aside. Hosier v. Shean, 102 lU. 169; 40 Am. Dec 
 573. See also 51 Am. Dec. 697; note, 698. What misbehavior a ground. Ship- 
 man V. Fletcher, 82 Va. 601. Binding, though one of three arbitrators refused 
 to sign. Doyle v. Patterson, 84 Va. 800. 
 
 ' Tate V. Vance, 27 Grat. 573. 
 
 » Ligon D. Ford, 5 Munf. 10. 
 
§ 172 DEVISAVIT VEL NON. 601 
 
 trators acting further, upon the ground that they had divested 
 themselves of all authority, and then he left them. They never- 
 theless went on and made up an award against the defendant, with- 
 out hearing his defence or having his evedence before them. For 
 this the court set the award aside. 
 
 On the other hand, where the parties were before the arbitrators, 
 had a full hearing, submitted their evidence, and were willing that 
 the award should then be made, but one of them claimed (although 
 the- arbitrators did not remember any such occurrence) to have 
 expressed a wish that if a decision was not reached before he left 
 Richmond, that they would not make up their award until he 
 should be again before them ; the arbitrators rendered their award 
 without hearing further from him, and his motion to set aside the 
 award for misconduct and surprise was overruled by the court.' 
 
 DevisavU vel non. 
 
 § 172. The statute^ provides, that after the rejection or admis- 
 sion to probate of a will upon an ordinary ex parte application, 
 any person interested, who was not a party to the proceeding, may, 
 within two years, proceed by bill in equity to impeach or establish 
 the will, on which a trial by jury shall be ordered, to ascertain 
 whether any, and if any, how much of what was so offered for 
 probate be the will of the decedent. If no such bill be filed 
 within the two years, then the ex parte sentence or order is for- 
 ever binding. But any person interested who, at the time of the 
 sentence or order, is within the age of twenty-one years, may file 
 such a bill within one year after he becomes of age ; and any per- 
 son interested who at that time resides out of this State, or shall 
 have been proceeded against by an order of publication, unless he 
 
 ' May V. Yancey, 4 Leigh,. 368. 
 
 ' 5? 2544, 2545. One year limit in West Virginia. Code W. Va., Ch. 77, J 29. 
 The institution of the proceeding is held to stop the rvinning of the statute of 
 limitations as well as to those who are made parties as to others who are afterwards 
 brought in. Bradford v. Andrews, 20 Ohio St. 208; 5 Am. E. 645. 
 
602 EEMEDIES PEOVIDED BY STATUTE. § 172 
 
 actually appeared as a party, or was personally summoned, may 
 file such a bill within two years after such sentence or order. 
 
 The proceeding upon an ex parte application for the probate of 
 a will has been likened to a proceeding in rem as an attachment or 
 sentence in a court of admiralty ; and hence, persons in interest 
 are only bound by it in case they are parties to it ; ' although it is 
 conclusive as to the validity of the will until it shall have been 
 drawn m question on issue devisavit vel non within the time and in 
 the mode prescribed by statute.^ Such a proceeding, as well as a 
 bill in equity under the statute, is like any other case, open for 
 review where there has been an erroneous judgment by default, or 
 where there has been fraud, surprise, accident, or mistake in ren- 
 dering it.' 
 
 The former statute * was silent as to the effect of a sentence 
 against a will upon the first propounding, and contained no pro- 
 vision whatever in that event for its reassertion ; ' but it made pro- 
 vision for contesting the validity of a will that had been admitted 
 to probate, by bill in chancery if filed within seven years. Under 
 
 ' Lomai's Digest, Vol. 3, p. 86; Wills v. Spraggins, 3 Grat. 574; O'Brien et ah 
 V. Stephens ei als, 11 Grat. 610. A widow cannot contest her husband's will, as she 
 is not bound by it. McMeohan et als v. McMechan et a&, 17 W. Va. 683. For 
 the persons who are bound and the extent to which they are bound by decrees and 
 orders as to the probate of Wills, see note, p. 353 to 362, 60 Am. Dec. For juris- 
 diction of United States courts for affirming or annulling probate of wills see 
 Ellis V. Davis, 109 U. S. E. 485. For pleadings, practice, etc., in such proceed- 
 ings, see Dower et al v. Church, 21 W. Va. 23. The question in such proceedings 
 is confined to whether the paper is or is not the will. The court cannot go further 
 and appoint a receiver. Kirby i;. Kirby, 84 Va. 627. 
 
 ' Norvell et ah v. Lessueur, 33 Grat. 222. 
 
 ' Connolly v. Connolly et als, 32 Grat. 657. This was after the case had been 
 affirmed by the court of appeals. See also Ante, I 107. 
 
 •Act of 1775; 1 Eev. Code 1819, p. 378. The present statute was passed in 
 1838 (see Sess. Acts, p. 71), and was amended with the adoption of the Code of 
 1849, so as to give a person, not a party to the ex parte proceeding, the same redress 
 where a wiU had been improperly rejected as where it had been improperly estab- 
 lished. Kep. of Eev., p. 632, note; Matthew's Dig., Vol. 2, p. 884, note; Shultz 
 V. Shultz et aU, 10 Grat. 358, 368; BaUow atahv. Hudson et ah. 13 Grat 672 679 
 682. ' ' 
 
 ' Wills V. Spraggins, 3 Grat. 573. 
 
§ 172 DEVISAVIT VEL NON. 603 
 
 this statute it was held that a person who had appeared and con- 
 tested the probate of a will might still file a bill in equity within 
 the period prescribed by the statute, upon the ground of fraud dis- 
 covered by him after such probate.* 
 
 The proceedings under this statute are like those in any other 
 suit in equity. Process issues in the same way, and the pleadings 
 are of the same nature. The court by decree settles and directs 
 the issue, and the trial of it may be had at the bar of the chancery 
 court or some court of common law ; although wherever it is had 
 the chancery court alone in which the suit is pending can grant a 
 new trial.^ The bill is framed like any other bill in equity, except 
 that it must be confined in its aim and object to the specific relief 
 contemplated by the statute ; that is, the determination by a jury 
 on an issue directed and tried, of the validity or invalidity of the 
 testamentary paper or papers which are drawn in question.' 
 
 As the issue is simple, so the bill need not enter into details or 
 make up elaborate statements of facts ; but it is enough for it to 
 aver in general terms that the writing of which probate has been 
 admitted or rejected, is or is not the will of the decedent ; * for 
 upon the determination of that question the function of the suit is 
 exhausted, and it is not competent for the court to proceed in that 
 cause to make any further decree.* 
 
 As we have before seen,^ it is thought that an answer to a bill, 
 
 ' Ford V. Gardner, &c., 1 H. & M. 72; Paul, &c. v. Paul, 2 H. & M. 525. As 
 to who are necessary parties to this proceeding, see Ante, J 75. 
 
 ' Connolly v. Connolly et ah, 32 Grat. 662; Lamberts v. Cooper's Ex' or et als, 29 
 Grat. 61-66. The rules upon which a new trial is granted in such cases are those 
 which prevail at common law, and not such as govern in issues out of chancery. 
 29 Grat. 65, 66; Montague and Wife v. Allan's Ex' or, et al, 78 Va. 592; Dower 
 V. Church, 21 W. Va. 23. 
 
 ' Connolly v. Connolly et als, 32 Grat. 661. The verdict is conclusive as to all 
 mere questions of fact depending upon the credit to be given to the testimony of 
 witnesses, and the identity of the paper offered for probate is one of the questions 
 of fact settled by the verdict. Jesse v. Parker's Adm'r,, 6 Grat. 57; Young w. 
 Earner, 27 Grat. 105; Lambert v. Cooper's Ex' or, 29 Grat. 68. 
 
 'Malone's Adm'r et als v. Hobbs et aU, 1 Kob. E. 366. 
 
 ' Coalter's Ex' or v. Bryan and Wife et als, 1 Grat. 18. 
 
 ^Jnie, J127, Div. 7. 
 
604 EEMEDIES PEOVIDED BY STATtTTE. § 172 
 
 filed under this statute, cannot be used as evidence for the respond- 
 ent in respect to facts alleged in the bill, and thereby urged against 
 the validity of the will and denied by the answer, except when the 
 facts are suggested to be, or from their nature must be, within the 
 special knowledge of the respondent, and as to them an appeal is 
 made to his conscience, and a discovery specially called for from 
 him. 
 
 The issue is sufficiently made up if the words of the statute are 
 used, and on its trial the party sustaining the will is the plaintiff, 
 and entitled to the opening and conclusion of the case before the 
 jury ; and the party contesting the will is the defendant, and this, 
 although the contestant may propose to admit on the record a prima 
 facie case in favor of the will. Where, however, a party has in- 
 terests under and against a will he may be authorized by the court 
 to choose whether he will be a plaintiff or defendant in the issue.^ 
 
 The sentence of the court follows the verdict of the jury, and 
 when once pronounced is conclusive evidence of the validity or 
 invalidity of the will, and cannot be questioned in any collateral 
 proceeding.* But it is nevertheless open to rehearing or review in 
 a proper case ; and the review was granted in a. case where the 
 party asking it was an infant, and not a party to the proceeding ; 
 where new evidence was discovered after the decree was rendered 
 and affirmed by the appellate court, but could not have been dis- 
 covered before by the exercise of reasonable diligence ; was not 
 cumulative, but was material, and such as, if true, ought to pro- 
 duce on another trial of the issue a different result on the merits.' 
 
 The evidence in the case is submitted ore tenus, unless the cir- 
 cumstances be such as justify its being produced by deposition ; * 
 
 ' Coalter's Ex' or v. Bryan and Wife et als, 1 Grat. 18. 
 
 ' Weat V. West's Ex' or, 3 Band. 373; Vaughn v. Green, 1 Leigh, 287; Wills v. 
 Spraggins, 3 Grat. 555; Parker's Ex'ori). Brown's Ex" or eials, 6 Grat. 554; Eob- 
 insons v. Allen et ah, 11 Grat. 787; Ballow et als v. Hudson et ah, 13 Grat. 678; 
 Connolly v. Connolly et als, 32 Grat. 661; Minor's Institutes, Vol. 4, Pt. 1, p. 88. 
 
 » Connolly v. Connolly et ah, 32 Grat. 660; Dower v. Church, 21 W. Va. 23. 
 
 *Code, 5?3365, 3366. 
 
§ 172 DEVISAVIT VEL NON. 605 
 
 but the record of what was proved or deposed in court by wit- 
 nesses on the motion to admit the will to record, and any deposi- 
 ■tions lawfully taken out of court, on such motion, of witnesses, who 
 cannot be produced at a trial afterwards before a jury, may, on 
 such trial, be admitted as evidence to have such weight as the jury 
 shall think it deserves.' 
 
 If there be any errors complained of as committed upon the 
 trial of the issue, they should form the subject of a motion for a 
 new trial in the chancery cause, and if the new trial be refused an 
 appeal may be taken from that decision ; ^ but objections to the 
 rulings of the court upon the trial must be excepted' to, and the 
 bill of exceptions taken as in a trial at common law.^ In the 
 appellate court the original paper exhibited for probate will be 
 brought before it by subpcma duces teoum.^ 
 
 Upon the executor or the propounder of the will rests the bur- 
 den of proving its formal execution," as that it is wholly in the 
 handwriting of the testator, which may be done by persons familiar 
 with the handwriting, although they never saw him write ; ' or if 
 the will is not wholly in his handwriting, that the signature or 
 mark was made, or the will acknowledged by him in the presence 
 of at least two competent witnesses' present at the same time, and 
 who subscribed their names to the will in the presence of the 
 testator.* 
 
 When an attesting witness resides out of the State, or although 
 in the State is in confinement in another county or corporation, 
 
 ' Code, I 2546. 
 
 ' Lomax on Ex'ors, Vol. 1, p. 212. 
 
 ' Lamberts v. Cooper' b Ex' or ei ah, 29 Grat. 61. See ako Henry et ah v. Davis, 
 13 W. Va. 230. ■ 
 
 'Marks v. Bryant, 4 H. & M. 91; Potts tt al v. House, 6 Ga. 824; 50 Am. Dec. 
 329; note, p. 360. 
 
 ' Eedfidd on WiUs, Vol. 1, p. 30. 
 
 ' Pepper v. Barnett, 22 Grat. 405; Cody v. Conly et ah, 27 Grat. 313. 
 
 ' As to who are competent witnesses, see Code, ? 2529 to § 2533; 1 Bart. Law 
 Pr. 601 to 613; Martz's Ex' or v. Martz's Heirs, 25 Grat. 361. 
 
 8 Code, ? 2514; Code "W. Va., Ch. 77, ? 3. 
 
606 EEMEDIES PROVIDED BY STATUTE. § 172 
 
 under legal process, or is unable from sickness, age or other in- 
 firmity to attend the court before which the will is offered, the 
 court may cause a commission to take his deposition, to be issued 
 annexed to the will or a copy, and directed to any person author- 
 ized by law to take depositions in other cases. Such a deposition 
 must be taken and certified as depositions are taken in other cases, 
 except that no notice need be given of the time and place of tak- 
 ing the same, unless it be in a case in which the probate is opposed 
 by some person who has made himself a party.' 
 
 Although the will must be subscribed by two, it need not be 
 proved by two witnesses ; ' or if either or both the witnesses be 
 dead, their handwriting or marks may be proved.' In such cases, 
 or if there is a failure of recollection on the part of the witnesses 
 when the will is regular in other respects, the court will often pre- 
 sume that the statute has been complied with in the formal execu- 
 tion of the instrument.* It must appear from the paper itself, 
 and not from any extrinsic evidence, that it was intended to be the 
 final act of the testator," although it need not have a testamentary 
 form ; nor need the decedent know that he had performed a testa- 
 mentary act, or have intended so to do, provided the paper con- 
 tains a disposition of his property to take effect after his death." 
 
 The name of the testator must be so placed as to make it mani- 
 fest that it is intended as a signature, and the failure to locate it in 
 the usual and natural place has sometimes been held to be such an 
 equivocal circumstance ' as to destroy the validity of the will' 
 
 'Code, ? 2537; Code W. Va., Ch. 77, ? 27. 
 ' Cheatham v. Hatcher et ah, 30 Grat. 56. 
 " JesBe V. Parker, 6 Grat. 67; Rosser v. Franklin, Ibid. 1. 
 * Young, by &c. v. Earner et als, 27 Grat. 96; Nock v. Nock' s ' Ex" or, 10 Grat 
 106; Webb v. Dye et als, 18 W. Va. 376. _,.«.. 
 
 5 Lomax's Digest, Vol. 3, p. 40; Kamaey et als v. Ramsey's Ex' or, 13 Grat. 666. 
 ^ McBride v. McBride et ah, 26 Grat. 476. See also French v. French, 14 W 
 Va. 458. 
 
 ' The statute does not require it to be at the foot (note Waller, &c. v. Waller, 1 
 Grat. 465), but it is still nevertheless an equivocal circumstance if placed anywhere 
 else. Rep. Rev. 624, note; Ramsey etalv. Ramsey's Ex' or, 13 Grat. 666. 
 
 « Ramsey et al v. Ramsey's Ex' or, 13 Grat. 664. Not signed, no will. Waller 
 
§ 172 DEVISAVIT VEL NON. 607 
 
 The incompleteness of the paper on its face also often raises a 
 strong presumption against its finality, such as, for instance, an 
 attesting clause without subscribing witnesses, although the testator 
 has fully written and signed the paper.' When the will is in the 
 handwrittng of the testator, but the attesting clause is written by 
 another, this circumstance, which might be attributable to the un- 
 authorized act of a third person, is entitled to little or no consid- 
 eration ; ^ but when the will and the incomplete attesting clause 
 are both written by the testator, the existence of the latter raises 
 a strong presumption against the completeness of the testamentary 
 act.' 
 
 The American authorities differ, as do the text-writers, upon 
 the question of the burden of proving the sanity of the testator, 
 it being held in many cases that it is sufficient for the propounders 
 to comply with the statutory provisions, by introducing the sub- 
 scribing witnesses to the will, and there to rest their case until the 
 contestant introduces his evidence.* If those witnesses do not 
 sustain the mental capacity of the testator, although such evidence 
 will be viewed with suspicion,^ yet it will prevent the propounders 
 from making a prima facie case, even under the rulings of the 
 authorities mentioned. But it is an undoubted proposition, that 
 except where , general insanity has existed, and the propounder 
 claims that the will was made in a lucid interval,* sanity is always 
 
 V. Waller, 1 Grat. 454. See note to this case as reported in 42 Am. Deo. 571 to 
 573; see also 29 Am. & Eng. Encyc. of Law, 4, 225 et seq. Conflict of laws as to 
 execution of wills. Janney v. Thorne, 2 Barbour's Chy. 40; 45 Am. Dec. 424; 3 
 Am. & Eng. Encyc. of Law, p. 630. Execution of a will by a blind person. 
 Clifton V. Murray, 7 Ga. 564; 50 Am. Dec. 411; note, 413. 
 
 ' The presence of an attestation clause not being essential to the validity of any 
 will. Kedfield on Wills, Vol. 1, p. 231 to 233, and notes. 
 
 ^ Lomax on Ex'ors, Vol. 1, pp. 44 to 47; Plater v. Groome, 3 Md. 134. 
 
 ' Barnes v. Syester, 14 Md. 529; Beaty v. Beaty, 1 Addams, 154; 2 Eocl. E. 60; 
 Harris v. Bedford, 2 PhUl. 177; Tilghman v. Steuart, 4 H. & J. 156. 
 
 ♦Eedfield on Wills, Vol. 1, p. 30 to 51; Hiett v. Shull, 36 W. Va. 563. See 
 Hardy «. Merrill, 56 N. H. 227; 22 Am. E. 441; Am. & Eng. Encyc. of Law, 
 Vol. 11, p. 105; Vol. 25, pp. 974, 977. 
 
 ' Cheatham »). Hatcher et ah, 30 Grat. 56. 
 
 « Eedfield on Wills, Vol. 1, p. 114. 
 
608 REMEDIES PROVIDED BY STATUTE. § 172 
 
 presumed to exist/ and the character of the will itself often serves 
 to confirm the presumption. For instance, in the case of a will 
 wholly in the testator's handwriting,^ if no suspicion of fraud 
 exists, if it be consistent with previous affections and declarations, 
 supported by intrinsic circumstances showing volition and capacity,^ 
 these offer the most persuasive evidence of the ability to make a 
 will, for the " rationality of the act goes to show the reason of the 
 person." * Notwithstanding all these views that incline us to a 
 contrary conclusion, the weight of authority on the whole seems 
 to favor the rule that upon the propounder rests the burden of 
 proving all that is essential to a valid will, including the mental 
 capacity of the testator. 
 
 This rule has also been said to embrace the question of undue inilu- 
 ence,' which seems even to be a stronger violation of natural presump- 
 tions than the obligation to prove the sanity of the testator imposes.' 
 
 ' Burton v. Scott, 3 Eand. 400; Lomax on Ex'ors, Vol. 1, p. 30; Miller v. Eut- 
 ledge, 82 Va. 867; Porter et cds v. Porter et als, 89 Va. 118; Kingsbury v. Whit- 
 acre, 32 La. 1055; 36 Am. B. 278. 
 
 2 Temple & Taylor v. Temple, 1 PI. & M. 477. 
 
 ' Lomax on Ex'ors, Vol. 1, p. 21; Couch v. Couch, 7 Ala. 519; 42 Am. Dec. 602. 
 
 * Young, by &c. i-. Earner et ah, 27 Grat. 103. 
 
 " For the extent of influence sufficient to invalidate a will, see Eedfield on Wills, 
 Vol. 1, p. 521 to 538; Whitesel et al v. Whitesel et al, 23 Grat. 904; Eiddell et al 
 V. Johnson's Ex'ors et als, 26 Grat. 152; Parramore v. Taylor, 11 Grat. 220; 
 Cheatham v. Hatcher et als, 30 Grat. 56; Simmerman v. Songer et als, 29 Grat. 9. 
 
 "See Eiddell et al v. Johnson's Ex' or et als, 26 Grat. 152. The burden of proof 
 of sanity is on the propounders of the will, but not so of absence of fraud or of 
 undue influence. McMechan v. McMechan, 17 W. Va. 683, as reported in 41 
 Am. E. 682. The burden is on the propounder to prove not only the due execu- 
 tion of the will but the testamentary capacity of the testator. Williams' Ex' or «. 
 Eobinson, 42 Vt. 658; 1 Am. E. 359. See Martin v. Thayer, 37 W. Va. 38. A 
 contrary view is taken in Am. & Eng. Encyc. of Law, Vol. 25, p. 996, where 
 many of the cases are collected, the text-writer adopting the more reasonable con- 
 clusion that the burden upon the propounder is only to prove the formal execution 
 of the will. For what is regarded as undue influence, see Carter v. Carter, 82' Va. 
 624; Miller v. Eutledge et als. Id. 863. The whole subject of undue influence and 
 extent of testamentary capacity is well discussed and expounded in the case of 
 Chappel et al v. Trent et al, 90 Va. 849. See also Tucker v. Sandidge, 85 Va. 546; 
 Porter et al v. Porter et al, 89 Va. 118. For extent of undue influence sufficient 
 to vitiate a will, see Floyd v. Floyd, 3 Strob. 44; 49 Am. Dec. 626; note, p. 633. 
 See also Wise v. Fort, Va. Law Journal, 1883, p. 441. 
 
§ 172 DEVISAVIT VEL NON. 609 
 
 Whether a person is capable or not of making a will depends 
 upon the evidence in each particular case ; but in general terms he 
 must measure up to the standard of being able to know the prop- 
 erty of which he is disposing, and the objects of his bounty, and, 
 to use the concise and expressive language of another,' he must 
 " have sufficient active memory to collect in his mind without prompt- 
 ing the particulars or elements of the business to be transacted, 
 and to hold them in his mind a sufficient length of time to perceive 
 at least their obvious relations to each other, and to be able to form 
 som^ rational judgment in relation to them." ^ 
 
 • Eedfield on Wills, Vol. 1, p. 130. 
 
 ' It would be going beyond the object of this book to enter into a minute detail of 
 the circumstances proving incapacity to make a will, as that has been measured by 
 the decided cases; but the following precedents are largely relied on in Virginia : 
 The cases cited in Bobinson's Practice (old ed. ), Vol. 3, p. 334 to 347; Mercer v. 
 Kelso, 4 Grat. 106; Greer v. Greers, 9 Grat. 330; Young, by, &c. v. Bamer el ah, 
 27 Grat. 96. See also Minor's Institutes, Vol. 2, p. 939, and Kelly's Rev. Stat., 
 Ch. 201, ? 2, and notes; Davis v. Calvert, 5 Gill. & Johnson, 269; 25 Am. Dec. 
 281, note 801. For the subjects of testamentary capacity involved in cases of alleged 
 idiots, blind, deaf and dumb persons, lunatics. Cases of delusions, eccentricity, 
 delirium, drunkenness, feeble-minded persons, &c. , see Am. & Eng. Encyc. of Law, 
 Vol. 25, p. 970, et aeq. For a, case of belief in spiritualism, see Brown v. Ward, 
 53 Md. 376; 86 Am. R. 422. For a case of partial unsoundness of mind held not 
 to destroy testamentary capacity, see Pidcock v. Potter, 68 Penn. St. 342; 8 Am. 
 E. 181; note, 185 to 195. See also Nicholas v. Kershner, 20 VV. Va. 251. 
 
 An interesting contested will case was decided bv the circuit court of Frederick 
 county, Virginia (Hon. R. H. Turner), at its November term, 1878, and as it in- 
 volved very many of the questions of general interest growing out of such cases, 
 the instructions granted by the jijdge are appended here in full. 
 
 1. If the jury believe from the evidence that the paper offered as the second 
 codicil in the last wiU of Mrs. H. B. H., and which is dated June 25th, 1871, is 
 wholly in her handwriting; that she was then of a sound and disposing mind and 
 memory, and that she intended in and by said paper to make a final disposition of 
 her property, they shall find that said paper is her last will and testament. 
 
 2. If the jury believe that the attesting clause written below the paper purport- 
 ing to be a codicil, dated June 25th, 1871, is not in the handwriting of Mrs. H. B. 
 H. , and that said clause was not written there at her request, they are instructed that 
 said clause constitutes no part of the said paper purporting to be a second codicil of 
 Mrs. H. B. H.'s will; and that they are not to consider said attesting clause in 
 determining whether the said paper of June 25th, 1871, was or was not her last will. 
 
 3. If the J^iry believe from the evidence that the attesting clause at the foot of 
 the paper, dated June 25th, 1871, purporting to be a codicil to the will of Mrs. H. 
 B. H., dec'd, became a part of said codicil by reason of her having written it, or 
 
 39 
 
610 REMEDIES PROVIDED BY STATUTE. § 172 
 
 authorized it to be there written, they are instructed that said attestation dause, 
 not attested by witnesses, creates a presumption that she did not intend said paper 
 as and for her last will and testament; and this is true although they may find that 
 the date, body and signature to said paper were wholly in the handwriting of said . 
 H. B. H., deceased. 
 
 4. The court instructs the jury, that in order to establish the codicil, bearing 
 date 2Bth June, 1871, as the last will and testament of H. B. H., deceased, they 
 must find from the evidence that the paper is wholly in the handwriting of the de- 
 ceased; that she was, at the date of the making of said codicil, of a sound and 
 disposing mind and memory, and capable of recollecting the property she had for 
 disposition, and the persons to whom she naturally would and did wish to give it; 
 that the burden of proving the foregoing facts is upon the propounders of said codicil 
 as the last will of the deceased. But presumptive as well as positive and direct 
 evidence may be resorted to by them for this purpose. 
 
 5. The court instructs the jury that a wOl wholly written by a testatrix herself 
 is prima facie or presumptive evidence that she was in her senses, and able to make 
 a will at the time of writing the same; to repel that presumption lies on those who 
 wish to impugn it. 
 
 6. The court instructs the jury that every person is presumed to be of sound mind 
 until the contrary is shown. Where this is done— that is, where general insanity 
 is proved to have existed prior to or about the time of the execution of a will or 
 codicil — the burden of proving a restoration of the testator to sanity at the time of 
 the execution thereof, or that such will or oodicU was made in a lucid interval, is 
 upon those who assert it. 
 
 7. If the jury believe from the evidence that, prior to the 25th day of June, 1871, 
 Mrs. H. B. H. was in a state of general insanity, then the burden is upon the 
 pai-ties offering the will to prove that, on the 25th day of June, 1871, she was com- 
 petent to execute a will; and they are further instructed that the will itself, if drawn 
 up in a rational and sensible manner by her, and wholly in her handwriting, may 
 furnish the strongest proof that it was made in a lucid interval; provided, however, 
 they believe that such pre-existing unsoundness of mind was of such a character as 
 to afford any reasonable ground to suppose that a lucid interval may have prevailed. 
 
 8. The court instructs the jury that neither sickness, old age, nor impaired in- 
 tellect, even if they believe from the evidence that any one or all of them existed in 
 this case, are sufficient to render void the provisions of the paper dated June 25, 1871 ; 
 and if the jury believe from the evidence that H. B. H., on the 25th day of June, 
 1871, was capable of recollecting the property she was about to dispose of, the 
 manner of disposing of it, and the person to whom she wished to give it, they must 
 find that she had legal capacity sufficient to make a valid disposition of her estate. 
 
 9. If the jury believe from the evidence that the paper dated June 25, 1871, 
 disposed of the property therein mentioned in a way consistent with the situation 
 of the testratrix, m conformity with her affections and previous declarations, and 
 such as might justly have been expected; and that said paper was wholly in the 
 handwriting of Mrs. H. B. H., they are instructed that such disposition is persuasive 
 evidence of testamentary capacity, and that the rationality of the act tends to show 
 the reason of the person. * 
 
 The will was sustained in this case, and there was no appeal. 
 
CHAPTEE XI. 
 
 ATTACHMENTS IN CHANCEEY. 
 
 173. The Jurisdiction. 
 ; 174. The Provisions of the Statute. 
 
 175. Parties to the Proceeding. 
 
 176. The Kind of Debt for which At- 
 
 tachment Lies. 
 
 177. The Pleadings. 
 
 178. The Affidavit. 
 
 179. The Process. 
 
 j 180. The Service and Eeturn of Pro- 
 
 J 181. What is Subject to Levy. 
 
 ? 182. The Custody and Disposition of 
 
 Attached Property. 
 
 ^ 183. The Decree. 
 
 I 184. The Eight to Interplead. 
 
 § 185. The Right to Eehear. 
 
 § 186. The Defence to the Attachment. 
 
 ? 187. In Partnership Cases. 
 
 ? 188. The Lien of the Attachment. 
 
 The Jurisdiction. , 
 
 § 173. In Virginia the circuit and corporation courts have gen- 
 eral jurisdiction of attachment proceedings within their several 
 territorial limits. Attachments at law may also be sued out before 
 a justice of the peace where the cases are under § 2961 of the 
 Code as amended by the act of March 2, 1896, Acts 1895-6, 
 p. 602, and by Acts 1889-90, p. 26, and under § 2962 of the 
 Code ; that is where a debtor intends to remove, or is removing 
 or has removed his effects out of the State, and where one liable 
 for rent intends to remove, or is removing, or has, within thirty 
 days, removed his effects from the leased premises. 
 
 In West Virginia the circuit courts^ have general jurisdiction, 
 and justices of the peace have jurisdiction in attachment cases 
 when the sum involved does not exceed three hundred dollars.^ 
 There is also a provision similar to that in Virginia for proceeding 
 against non-residents or foreign corporations by attachments in 
 equity in "West Virginia for a debt or claim legal or equitable, 
 
 'CodeW. Va., Ch. 106. 
 
 2 Code W. Va., Ch. 50, ^f 8 and 193. 
 
612 ATTACHMENTS IN CHANCEBY. § 173 
 
 whether the same be due or not, upon any of the grounds provided 
 -for attachments at law.' 
 
 In Virginia the provision of the statute'' is that a person who 
 has a claim, legal or equitable, to any specific personal property, 
 or a like claim to any debt, whether such debt be payable or not, 
 or to damages for the breach of any contract, express or implied, 
 if such claim exceed twenty dollars, exclusive of interest, may, on 
 a bill in equity filed for the purpose, have an attachment to secure 
 and enforce the claim, on affidavit made by himself, his agent or 
 attorney, according to the nature of the case, conforming to the 
 general provisions' for suing out attachments at law ; except that 
 if the debt be not payable the affidavit must state the time when 
 it will be payable. But a court of equity has no jurisdiction to 
 enforce by attachment a claim to a debt not payable, when the 
 only ground for the attachment is that the defendant, or one of 
 the defendants, against whom the claim is, is a foreign corporation, 
 or is not a resident of this State,^ and has estate or debts owing 
 to the said defendant within the county or corporation in which 
 the suit is, or is sued with a defendant residing therein.'* 
 
 The former statute in Virginia' indicated as the proper court in 
 which to sue out an attachment in equity, " any court of equity 
 for a county or corporation in which there may be any such estate, 
 or a defendant owing any debt to such non-resident." The present 
 statute is much less specific and seems to intend that the question 
 of jurisdiction shall be determined by the ordinary rules which fix 
 the proper locality for a suit in equity. 
 
 Even under the old statute it was not necessary that the place 
 
 ■CodeW. Va., Ch. 106, ^1.' 
 
 ^ i 2964. 
 
 ' ? 2959 as amended by act February 20, 1892, Acts 1891-2, p. 520, and Acts 
 1893-4, p. 495. 
 
 * This qualification confines the right of attachment for debts not due to cases 
 where the defendant has or is about to dispose fraudulently of his efFects. Wingo, 
 &c. V. Purdy, 87 Va. 472. 
 
 ' I 2964. 
 
 « Code 1873, Ch. 148, I 11. 
 
§ 173 THE JURISDICTION. 613 
 
 of indebtedness should appear from the affidavit which was re- 
 quired to be filed ; for if it appeared from the bill that the court 
 had jurisdiction of the case, as for instance, that the absent party 
 was sued with a defendant residing in the county, or that the non- 
 resident had estate in the county in which he was sued, then the 
 affidavit was regarded as sufficient if it stated that he had property 
 or effects in any county in the State/ 
 
 The earliest attachment laws in Virginia related only to debtors 
 removing the property out of the State. In 1744^ a proceeding 
 by attachment in chancery was authorized against non-residents, 
 and this proceeding was confined to the equity courts from that 
 date until the adoption of the Code of 1849, when, without im- 
 pairing the jurisdiction of courts of equity over equitable claims, 
 provision was made for attachments at law for legal claims.' 
 Under this revision the form of proceeding was equitable if the 
 claim was equitable, and legal if the claim was legal. ^ 
 
 But subsequently the law ° was again changed so as to restore 
 equitable jurisdiction over claims purely legal. '^ Being an inno- 
 vation on the common law, and unless personal service is had a 
 mere proceeding in rem,^ it is not under their general jurisdiction 
 that courts of equity take cognizance of these cases, but under 
 particular statutes ; * and being not only harsh towards the defen- 
 dant himself, but in its operations harsh towards other creditors of 
 the defendant over whom the attachment creditor obtains priority, 
 and being susceptible of great abuse, it is closely watched, and will 
 never be sustained unless all the requirements of the law have 
 been complied with.' 
 
 ' Anderson v. Johnson, 32 Grat. 558. 
 ' 5 Henning's Statutes at Large, p. 224. 
 »Bep. of Eev., p. 757. 
 
 * Sams on Attachment, p. 53. 
 'Acts 1852, Ch. 95, ? 78. 
 
 « Daniel on Attachments, p. 21; C. & O. E. B. Co. v. Paine, 29 Grat. 507. 
 ' Post, I 183; Delaplaine v. Armstrong, 21 W. Va. 211. 
 
 * Kelso V. Blackburn, 3 Leigh, 306. 
 
 ^Claflin V. Steenboek, 18 Grat. 842; Brien t). Pitman, 12 Leigh, 879; Barksdale 
 
614 ATTACHMENTS IN CHANCERY. § 174 
 
 By the revisal of 1887 many new grounds are given for attach- 
 ments, making that remedy applicable to almost every claim against 
 residents (coming within the conditions) and against non-residents, 
 except to a claim for damages for a wrong,' legal demands not due 
 being expressly embraced, and the writ issuing upon an affidavit 
 of mere belief. This process is, therefore, justly spoken of as 
 liable to " be made a formidable engine." ^ 
 
 The fact that there 4s a remedy by attachment at law does not, 
 in any case, prevent the proceeding in equity, and the same pro- 
 vision is made by law in regard to the mode and measure of relief 
 in an attachment case, whether it be an action of law or a suit in 
 equity ; * but it does not follow that the attachment may be at law 
 because it may be in equity, for where one sought by an attach- 
 ment at law and garnishee proceeding, to subject a legacy in the 
 hands of an executor to the payment of his debt, the proceeding 
 involving the settlement of accounts which could not be done at 
 law, the attachment was dismissed.^ 
 
 A concurrent jurisdiction also exists between proceedings by 
 attachment at law and in equity, in this, that they may be issued 
 both at law and in equity against either a non-resident or a debtor 
 removing his effects, except that in equity formerly it could only 
 issue when the debt is due,' while now it lies whether the debt be 
 payable or not.° 
 
 The Provisions of the Statute. 
 
 § 174. The statute'' provides that when a person has a claim, 
 
 V. Hendree, 2 P. & H. 47; Lambert v. Jones, Id. 163; Jones v. Anderson, 7 Leigh, 
 311; Mantz v. Hendley, 2 H. & M. 311. If the property is not defendant's, juris- 
 diction "fails. Culbertson v. Stevens, 82 Va. 406. 
 
 ' In West Virginia attachment in equity lies on this ground also. Code W. Va., 
 Ch. 106, ? 1. 
 
 ' Sams on Attachments, p. 54. 
 
 = C. & O. B. B. Co. V. Paine, 29 Grat. 509. 
 
 * Whitehead v. Coleman, 31 Grat. 789. 
 
 ' Dan. on Attachments, ? 39. See Adler v. Fenton, 24 How. 408; Devries & 
 Co. V. Johnston, &c., 27 Grat. 805. 
 
 « I 2964. ' Id. 
 
§ 174 THE PEOVISIONS OF THE STATUTE. 615 
 
 legal or equitable, to any specific personal property, or a like claim 
 to any debt, whether such debt be payable or not, or to damages 
 for the breach of any contract, express or implied, if such claim 
 exceed twenty dollars, exclusive of interest, he may, on a bill in 
 equity, filed for the purpose, have an attachment to secure and en- 
 force the claim, on affidavit made by himself, his agent or attorney, 
 according to the nature of the case, conforming, as nearly as its 
 nature will admit, to the af&davit required by § 2949 ; ' except 
 that if the claim be to a debt not payable^ the affidavit shall also 
 state the time when it will be payable. 
 
 Upon such affidavit the plaintiff may require the clerk to en- 
 dorse on a summons an order to the officer to whom it is directed 
 to attach the specific property (if any be mentioned in the affidavit), 
 and the debts owing by other defendants (if any) to the defendant 
 against whom the claim is, and also any other estate of that de- 
 fendant, whether in his own hands or in the hands of other de- 
 fendants. 
 
 Such an attachment must be executed in the same manner and 
 has the same effect as at law, but the proceedings thereon are the 
 same as in other suits in equity. 
 
 The court, or judge in vacation, may interpose by injunction, or 
 the appointment of a receiver, or otherwise, to secure the forth- 
 coming of the specific property sued for, and so much other estate 
 as will probably be required to satisfy any future order or decree 
 that may be made in the cause. 
 
 It is further provided by statute ^ that any such attachment may 
 be directed to the sheriff, sergeant or constable of any county or 
 corporation ; and that if issued in a pending suit it shall be returna- 
 ble to a term of court in which the same is pending, or to some 
 rule day thereof.^ 
 
 ' Amended by act of February 20, 1892, Acts 1891-92, p. 520. As to the time 
 of making the affidavit, see 2 Barton's Law Pr. 932. 
 
 ^ § 2965, as amended by act of February 27, 1894, Acts 1893-94, p. 495. 
 
 ' Amended in this respect after decision of Craig v. Williams, 90 Va. 500, and 
 Grinberg & Morris v. Singerman, Id. 645. 
 
616 ATTACHMENTS IN CHANCERY. § 175 
 
 Parties to the Proceeding. 
 
 § 175. The rule requiring all persons in interest to be made 
 parties to a suit, applies as well to an attachment in chancery as 
 to any other suit ; and so it has been held, that where there are 
 two obligors, one of whom is in, and the other out of the State, 
 and the suit is brought against the absent defendant, the other 
 obligor should be also made a party.' The garnishees, though, are 
 to be made parties along with the principal defendants." 
 
 The person, however, whose existence and whose presence as a 
 party is essential to maintaining the attachment in chancery, is the 
 debtor, or one of the debtors, who is a non-resident of the State ; 
 and who is such non-resident within the meaning of the statute in 
 Virginia has been frequently a vexed question, and one not even 
 now of easy solution, depending as it does upon the circumstances 
 of each particular case. 
 
 The former statute^ providing for attachments instead of the 
 present term " not a resident," contained the expressions " who are 
 out of the country," " absent defendants," and " defendants out of 
 the country." * Of these expressions the revisors in their report ° 
 say : " We propose to remove an ambiguity in the act in the Code 
 of 1819. It is doubtful from the terms of the oath, and from 
 the use of the words ' absent defendants ' in the body of the law, 
 and ' parties who are out of the country,' etc., whether a resident 
 and citizen of the State, absent temporarily for business or pleas- 
 ure, might not be proceeded against by way of attachments, 
 although he was not an absconding debtor. The court of appeals 
 in Kelso v. Blackburn (iibi supra), seemed to think the proceeding 
 could only be had against a non-resident (unless the debtor was 
 
 ' Loop V. Summers, 3 Baud. 511. 
 ' Sams on Attachments, p. 75. 
 » 1 Eev. Code, Ch. 123, ? 1. 
 * See Starke v. Scott, 78 Va. 180. 
 ^Eep. of Eev., p. 756, note. 
 
§ 175 PARTIES TO THE PEOCEEDING. 617 
 
 evading legal process). We think it ought to be so, and propose 
 to make it plainly so." 
 
 Since the adoption of the present statute, both the old and the 
 new statutes have been the subject of discussion by the court of 
 appeals. 
 
 The first case' was under the old statute, and in it the defendant 
 had left his home in the State under circumstances that justified 
 the belief that he did not intend to return ; and although at the 
 time the attachment was sued out he was still within the State, yet 
 the court held the attachment good, and said that as at the moment 
 he left the State " with the intention to take up his future residence 
 elsewhere, he ceased to be a resident of the State, I regard the 
 allegation of non-residence as sufficiently proved in the cause." 
 
 The second case^ was under the new statute, but it was very 
 similar in its circumstances to that from which we have just 
 quoted. From the record it appears that the defendant debtor 
 left the town in the State of Virginia where he had theretofore 
 resided, and proceeded by the Winchester & Potomac Railroad for 
 Philadelphia, with the purpose of residing there. On reaching 
 Harper's Ferry (then in the State of Virginia) he remained there 
 until between half past two and three o'clock P. M., when he took 
 the cars for Baltimore, intending to go directly on to Philadelphia. 
 
 The attachment was sued out between the hours of ten and 
 eleven o'clock A. M. of the same day, and hence at a time when 
 the defendant was still within the State. On this state of facts 
 the counsel for the appellees contended that the attachment should 
 be dismissed, arguing that to eifect a change of domicil there must 
 concur an actual removal with the intention to reside in the place 
 to which the party has removed, and that a mere intention to re- 
 
 ' Moore v. Holt, 10 Grat. 284. 
 
 ' Qark v. Ward et ah, 12 Grat. 440; Maslin v. Hiett, 37 W. Va. 15; Derr v. 
 Carmon, 37 W. Va. 123; 2 Barton's Law Pr., notes, p. 910. Attachment for part- 
 nership debt where one partner only a non-resident. Held, no priority over other 
 social creditors except as to the individual interest of the non-resident partner. 
 Andrews v. Mundy, 36 W. Va. 22. 
 
618 ATTACHMENTS IN CHANCERY. § 175 
 
 move, unless it be carried into effect, is not sufficient to accomplish 
 the change.' The court, however, held that at the time of the 
 issuing of the subpoena and attachment in the case, the defendant 
 was in fact and in the true sense and meaning of the statute 
 regulating the subject, not a resident of the State.^ 
 
 It is, therefore, very clear that under the statute of Virginia, 
 although the debtor may still be in the State, he becomes a nmi- 
 resident as soon as he leaves his home with the intention of taking 
 up his residence outside of the State. 
 
 The third case ^ decided was that of one who had resided out of 
 the State, and had come in the State to be temporarily engaged 
 there in the construction of a railroad. The case came clearly and 
 strongly before the court upon the question of whether or not the 
 railroad contractor was a non-resident, because it was presented on 
 a demurrer to evidence, by the debtor and the garnishee, who were 
 both resisting the attachment. 
 
 The court in this case recognized the proposition that a casual 
 or temporary sojourn of a person in this State, whether on business 
 or pleasure, does not make him a resident thereof within the mean- 
 ing of the attachment laws, especially if his personal domicil be 
 elsewhere ; but it also held that it is not essential that he should 
 come into this State with the intention to remain here perma- 
 
 • Citing 1 Bouvier's Inst. 99; Jennison v. Hapgood, 10 Pick. 77; Cooper v. Gal- 
 braith, 3 Walsh's C. C. E. 546; 1 Greenl. Ev. § 108; The State v. Hallett, 8 Ala. 
 E. 159. See also Quier v. O' Daniel, 1 Am. L. Caa. 750; Drake on Attach. | 58, 
 et seq. ; So. Law Eeview, August, 1877, p. 413; Pilson, Trustee, o. Bushong, 29 
 Grat. 229; Mitchell v. United States, 21 Wal. 350; Crawford v. Wilson, 4 Barb. 
 E. 504. 
 
 ' Clark V. Ward ei als, 12 Grat. 440. 
 
 ' Long V. Eyan, &c., 30 Grat. 718. See Frost & Dickinson v. Brisbin, 19 Wend. 
 11; 32 Am. Dec. 423, and comments on the case of Long v. Eyan, on p. 427 of the 
 notes. See also Gravillon v. Eichards, 13 La. 293; 33 Am. Dec. 563. The case 
 of Long V. Eyan seems to be fully approved in Didier v. Patterson, 93 Va. 534. 
 See also White v. Tenant, 31 W. Va. 790. The intent and the fact together con- 
 stitute residence. Lyman v. Fiske, 17 Pick. 231; 28 Am. Dec. 293. See also 
 Fitzgerald v. Noel, 63Io*a, 104; 50 Am. E. 733, which is much in the line with 
 the case of Long v. Eyan. 
 
§ 175 PAETIES TO THE PROCEEDING. 619 
 
 nently to constitute him a resident, and that he may have a 
 domicil elsewhere and still be a resdent of Virginia.' Applying 
 the principles thus stated to the case before it, the court held that 
 the contractor who, in December, 1868, obtained a contract to 
 be completed in September, 1869, with a further agreement to 
 do any additional work in the way of masonry, bridges, culverts 
 and the like that the company might require within such extended 
 time as the chief engineer might allow ; and who was proved to 
 have always claimed Washington City as his place of residence, and 
 had declared that he had intended to return to that place so soon 
 as his contract was completed, unless he could get work elsewhere, 
 and that he expected to get a contract on a Pennsylvania or Mary- 
 land road ;^ was in June, 1869, not a non-resident of the State of 
 Virginia, within the meaning of the statute.' 
 
 If sued alone the attachment against a non-resident will only be 
 valid in case the debtor has property within the jurisdiction of the 
 court ; ^ and under the former statute it was regarded as a matter 
 of doubt whether the attachment in equity could be maintained 
 against such a debtor, even when sued with others with whom he was 
 jointly and severally bound ; ' but the present statute clearly au- 
 thorizes the attachment where either the defendant, against whom 
 the attachment issues, has estate in the county in which he is sued, 
 or is sued with a defendant residing there ; and in the latter case, 
 except when the attachment is sued out specially against specific 
 property, it may be levied upon any estate, real or personal, of 
 the defendant, or so much thereof as is sufficient to pay the amount 
 for which it issues, whether the same be in the county or corporation 
 where the suit is, or in any other in the State ; and this either 
 
 150 Am. E., pp. 721, 723. 
 
 ^Longt). Ryan, Ac, 30 Grat. 722, 723. 
 
 ' See also Daniel on Attachments, § 52 to ^ 56. This whole subject is exhaust- 
 ively discussed in the case of White v. Tennant, 31 W. Va. 790. See that case and 
 many others referred to in 1 Barton's Law Pr., p. 912. 
 
 * Miller v. Sharp, 3 Band. 41; Daniel on Attachments, 2 60. 
 
 ° Argument of Counsel in Hairston et aU v. Medley, 1 Grat. 98. 
 
620 ATTACHMENTS IN CHANCERY. § 175 
 
 by the officers of the county or corporation wherein the action is 
 brought, or by the officers of the county or corporation where the 
 estate is.* 
 
 The place of residence of the defendant is immaterial, provided 
 it is out of the State ; and it is no objection to the proceeding that 
 the creditor is also a non-resident.^ 
 
 A non-resident corporation may also be a debtor defendant to a 
 foreign attachment suit.^ The fact that it is incorporated by one 
 State does not prevent it from contracting or doing business in 
 another State ; but it must dweU in the State which created it ; * 
 and although it may by its agents transact business anywhere, un- 
 less prohibited by its charter or prevented by local laws, it can 
 have no residence except where it is located by or under the au- 
 thority of its charter.^ 
 
 Where a foreign corporation is doing business in the State of 
 Virginia, although nevertheless a non-resident, and liable to at- 
 tachment suits,* it is also liable to be sued there under the statute' 
 by ordinary process ; * and the same is true wherever a corpora- 
 tion of one State is permitted by act of the legislature to carry on 
 business within its limits, although such act does not constitute it 
 a domestic corporation.' 
 
 ' Code, ? 2967; Anderson v. Johnson et als, 32 Grat. 567. 
 
 ^ Williamson v. Bowie, &c., 6 Munf. 176; Loop v. Summers, 3 Rand. 511; Wil- 
 liams V. Donaghe's Ex' or, 1 Eand. 300. A suit against a foreign corporation may 
 be brought in any county wherein it has estate or debts due it. It is a non-resi- 
 dent under clause 3, Ch. 123, Code 1891, W. Va. Quesenberry v. People's B. L. 
 & S. Ass'n, W. Va.; 29 S. E. R. 73. 
 
 ' Expressly so by statute in West Virginia. Code W. Va., Ch. 106, ? 1. See 
 also Bank of U. S. v. Merchants Bank of Balto., 1 Rob. R. 605. 
 
 * Christian Union v. Yount, 101 U. S. 352. 
 
 ^ Cowardin et ah v. Universal Life Ins. Co. , 32 Grat. 445. 
 
 ^ Under the authority of the case of Long, &c. v. Ryan, 30 Grat. 718, it is very 
 doubtful whether such corporations are subject to attachments as non-residents; but 
 such has been the practice in the circuit courts, and this practice is held good in 
 Quesenbefty v. People's B. L. & S. Ass'n, W. Va.; 29 S. E. R. 73. 
 
 ' Code, U 2902, 2904. 
 
 * Baltimore & Ohio R. R. Co. v. Wightman's Adm'r, 29 Grat. 435. 
 
 » Such was held to be the effect of an act of Congress in the District of Columbia; 
 
§ 175 PARTIES TO THE PROCEEDING. 621 
 
 The garnishee, or person in whose hands the debt due to or 
 effects of the non-resident are attached, should be made a party 
 to the suit, and by his answer to the bill * he may disclose the 
 property or debts in his hands, or he may demur or plead to the 
 bill.^ If he fails to appear the bill may be entered as taken for 
 confessed as to him, and the cause set for hearing, or an answer 
 may be compelled by attachment, or by an order for him to be 
 brought in to answer interrogatories.' 
 
 Any person or corporation * may be a garnishee ; a corporation 
 answering under its seal." So also may an executor or an admin- 
 
 E. K. Co. V. Harris, 12 Wal. 65. For the definition of a non-resident corporation 
 and the cases in which they may be proceeded against by attachment, see 1 Bart. 
 Law Pr., p. 915. Attachment may issue against a non-resident national bank. 
 Eobinson v. National Bank, 81 N. Y. 385; 37 Am. R. 508. As to non-resident 
 corporations generally, see notes to Woodford v. Hartford Fire Ins. Co., 33 Am. 
 Dec. 399. Company incorporated in one State and doing business in another not 
 treated as a non-resident of latter State so as to be sued in circuit court of United 
 States. South. Pacific Co. v. Denton, 146 U. S. E. 202. 
 
 1 Code, i 2976. 
 
 ' Daniel on Attachments, ? 327. 
 
 'Ibid. 
 
 * Chesapeake & Ohio E. E. Co. «. Paine & Co., 29 Grat. 502. 
 
 ^Balto. & Ohio E. E. Co. v. Gallahue's Adm'r, 12 Grat. 655. But a national 
 bank cannot be the subject of attachment before judgment in a State or municipal 
 court. TJ. S. Eev. Stat., ? 5242. Held to be constitutional. Chesapeake Bank w. 
 First National Bank, 40 Md. 269; 17 Am. E. 601. Held in Kansas: "A foreign 
 corporation doing business in this State may be gamisheed for a debt due to a non- 
 resident employee contracted outside of this State and exempt from garnishment in 
 the State where the defendant and garnishee reside." Burlington & Missouri Eiver 
 E. E. Co. V. Thompson, 31 Kans. 180; 47 Am. E. 497. So in Illinois it is held 
 that "a foreign corporation doing business in Illinois and having property there, 
 may be gamisheed there." Hannibal, &c. E. E. Co. v. Crane, 102 111. 249; 40 
 Am. E. 581. But it is generally true that property outside of the State may not 
 be garnished, and that a common carrier is not ever subject to garnishment for 
 goods in actual transit at the time of service of process. Bates v. Chicago, M. & 
 St. P. E. E. Co., 60 Wis. 296; 50 Am. E. 369. The true distinction seems to be 
 made by the case of Hannibal, &c. E. E. Co. v. Crane, supra. See in this same 
 line the case of Pennoyer v. Neif, 95 U. S. E. 714. A municipal corporation may 
 not be a garnishee. Merrill v. Campbell, 49 Wis. 535; 35 Am. E. 785; Mayor, 
 &c. X). Eoot, 8 Md. 95; 63 Am. Dec. 692; Memphis v. Lasks, 9 Heisk. 511; 24 
 Am. E. 327; School District v. Gage, 39 Mich. 484; 33 Am. E. 421; Aumann n. 
 Black, 15 W. Va. 773. But see contra, Eodman v. Musselman, 12 Bush. (Ky.) 
 354; 23 Am. E. 724. So funds in the hands of a disbursing officer of a munioi- 
 
622 ATTACHMENTS IN CHANCERY. § 175 
 
 istrator in a suit against his testator or decedent, or against a 
 legatee of a specific or pecuniary legacy, and the attachment may 
 be served on an executor before his qualification.' An agent or 
 an attorney-at-law,^ and a sheriff or other officer,' in his private 
 capacity, may be a garnishee, and so also may a trustee in respect 
 to the interest of a beneficiary, or of a surplus after the discharge 
 of his trust ; but a non-resident person or corporation cannot be 
 a garnishee unless he or it have property of the defendant in the 
 State, or be bound to pay him money or deliver him goods there ; * 
 nor has any but a court of chancery jurisdiction to compel an 
 executor to pay. a legacy on a proceeding by attachment.* An 
 officer of the law, such as a clerk, receiver, a commissioner of a 
 court," or a trustee holding funds as agent of the court, a purser, 
 
 pal corporation due to officers of the coi-pOration for salaries, are not subject to 
 attachment. Mayor, &c. v. Boot, 8 Md. 95; 44 Am. Dec. 692; note, 699; Newer 
 V. O'Fallon, 18 Mo. 277; 59 Am. Dec. 313. But funds due from a city in this 
 State to a non-resident debtor are liable to attachment. Guarantee Co. v. First 
 National Bank, Va. ; 28 S. E. E. 913. 
 
 ' Generally a personal representative may not be a garnishee (Bickle v. Cris- 
 man's Adm'r, 76 Va. 678), but a lien by execution may sometimes be perfected 
 by petition in the chancery cause where the fund is held. Carrington v. Didier, 8 ' 
 Grat. 260. Nor will money held in a fiduciary capacity, though deposited to the 
 individual credit of the fiduciary, be liable to attachment for his personal debt. 
 Morrill v. Eaymond, 28 Kans. 415. 
 
 2 Mann ®. Buford, 3 Ala. 312; 37 Am. Dec. 691. 
 
 'Marvin v. Hawley, 9 Mo. 378; 43 Am. Dec. 547; note, 550; see also '58 Am. 
 Dec. 415. Money in hands of an officer as the residue of the proceeds of goods 
 sold under execution and remaining due the defendant, may be attached. King v. 
 Moore, 6 Ala. 160; 41 Am. Dec. 44. See on this subject note 4, p. 834, 2 Bart. 
 Law Pr., and cases cited. 
 
 * Daniel on Attachments, U 226, 227, 228. 
 
 5 Whitehead's Adm'r i;. Coleman's Ex' or, 31 Grat. 784; Parker v. Donally, 4 
 W. Va. 655. 
 
 « But a commissioner of court may be made a party to a foreign attachment suit, 
 and be restrained by endorsement on the process from paying over the money; and 
 then the attaching creditor may assert his claim thereto by petition in the cause in 
 which the commissioner was appointed. Carrington e( afe v. Didier, Norvell & 
 Co., 8 Grat. 260. The act of Februaiy 19, 1898, Acts 1897-8, p. 445, provides 
 that the wages and salaries of all officials, clerks and employees of any city, town 
 or county shall be subject to garnishment or execution upon any judgment rendered 
 against them; provided such officials, clerks and employees are not exempt from 
 
§ 176 KIND OF DEBT FOE WHICH ATTACHMENT LIES. 623 
 
 paymaster, or other financial agent of the government, or the 
 treasurer of the State of Virginia,^ cannot be garnishee in respect 
 to effects or money which they hold strictly in their respective 
 capacities. A sheriff likewise cannot be garnishee unless his 
 official duty in respect to the funds in his hands has been dis- 
 charged, and he holds them in his private capacity.^ Neither can 
 an assignee in bankruptcy be garnishee, nor a mere agent, unless 
 he has separate possession or control of the goods, effects, etc., his 
 possession being otherwise the possession of his principal.^ 
 
 If the garnishee die pending the garnishment, it may be revived 
 against his personal representative.* 
 
 The Kind of Debt for tqhich Attachment Ides. 
 
 § 176. We have already seen 'that an attachment in equity 
 need not be for a debt due at the time it is sued out, and also that 
 it may be of either a legal or equitable nature. 
 
 It does not matter whei'e the debt originated,^ and attachment 
 lies for any debt or the damages for the breach of any contract '' 
 
 garnishment or levy undei? chapter 178 of the Code, this being the poor debtor and 
 homestead exemption. But the wages of a minor are not liable to garnishment or 
 otherwise liable to the payment of the debts of parents. Act February 28, 1898, 
 Acts 1897-8, p. 599. 
 
 'KoUo, Assignee, v. Andes Ins. Co., 23 Grat. 509. 
 
 ' Where an officer took goods from a prisoner it was held that in a civil action 
 against the prisoner the goods were liable to garnishment in the officer' s hands. 
 Eeifsnyder v. Lee, 44 Iowa, 101; 24 Am. R. 733. 
 
 ' Daniel on Attachments, § 230. 
 
 'lUd., §229. 
 
 ^ Ante, i 173; Carson !'. Akers, 2 Pinney, 457j 54 Am. Deo. 148; note, p. 150; 
 Bachelder ei ak v. White, 80 Va. 107. A creditor may attach the amount due to 
 his debtor for labor already performed by him, and he may also attach whatever is 
 to become due upon an existing contract for his future labor; but the debtor cannot 
 be compelled to work out his part of such a contract so as to earn the promised re- 
 ward, for the exclusive use of the creditor. Teeter v. Williams, 3 B. Monroe, 562; 
 39 Am. Dec. 485. 
 
 ' Daniel on Attachments, § 45. 
 
 'Dunlop & Co. V. Keith, &c., 1 Leigh, 432; Peters v. Butler, Ibid. 285. 
 
624 ATTACHMENTS IN CHANCERY. § 177 
 
 which is actual and not contingent ; * but the statute does not em- 
 brace tort feasors.^ 
 
 It has also been held that a creditor at large may maintain a 
 suit in equity, in the nature of a foreign attachment, to set aside 
 a fraudulent deed conveying real estate, executed by his debtor, 
 when both the debtor and his grantee live and are out of the 
 Commonwealth.^ 
 
 While the statute still provided that the debt for which the at- 
 tachment is sued out must be due, yet it might be levied on debts 
 either due or to become due to the debtor against whose effects the 
 attachment was sued out ; and although it has been thought that 
 the proceeding must be confined to debts in existence at the time 
 that the attachment is sued out,* yet the language of the statute* 
 seems rather to justify the construction that any debt cdming into 
 existence after the date of the service on the garnishee is also liable 
 to the creditor's claim.^ 
 
 The Pleadings. 
 
 § 177. The statute of Virginia declares that any attachment in 
 equity shall be executed in the same manner, and have the same 
 effect as an attachment at law, but the proceedings therein shall be 
 the same as in other suits in chancery ; ' and even where there is 
 no statute on the subject, it has been held that such suits must be 
 proceeded in and be governed and determined by the principles 
 controlling courts of equity.^ 
 
 The right to amend is the same in attachments in equity as in 
 
 ' Daniel on Attachments, J 40 to § 44. 
 
 ' Dunlop & Co. V. Keith, &c., 1 Leigh, 432; Peters v. Butler, Ibid. 285. 
 
 ' Peay v. Morrison, 10 Grat. 149. 
 
 •Samuels, J., in B. & O. E. R. Co. v. Gallahue's Adm'r, 14 Grat. 563. 
 
 ' Code, ? 2976. 
 
 • Daniel on Attachments, § 260. 
 
 ' Code, J 2964; Lambert el ah v. Jones tt afe, 2 P. & H. 144. 
 
 « Sims V. Bank of Charleston, 8 W. Va. 275; WUliamson v. Gayle et ah, 7 
 Grat. 152. 
 
§ 178 THE AFFIDAVIT. • 625 
 
 other chancery causes/ and the attachment may be set up by a 
 cross-bill filed in the suit.^ 
 
 A demurrer will not lie for a failure to aver that an attachment 
 has issued, for it may issue after the institution of the suit ; ' and 
 although the attachment be improperly sued out, yet if there is 
 appearance and defence made to the claim, the court having prop- 
 erly taken jurisdiction may proceed to give relief according to the 
 principles of equity, and may render a personal decree against the 
 defendant.* A party may, however, appear merely for the pur- 
 pose of contesting the right to sue out the attachment, and then 
 no personal decree can be rendered against him.' 
 
 Tl^e bill need not ever pray for an attachment, for if it states a 
 good caSe for one, the affidavit may afterwards be made and the 
 attachment be sued out pending the cause.^ 
 
 Where one has sued out an attachment at law, as well as in 
 equity, he may dismiss his attachment at law, and proceed on that 
 in equity.^ 
 
 The Affidavit. 
 
 § 178. An affidavit is essential to an attachment, and one is 
 generally written out and filed among the papers of the suit ; but 
 it need not be signed by the affiant, nor need it be made a part of 
 the record.* 
 
 It may be made by the plaintiff or his agent, and while under 
 
 iTilton et al v. Cofield et al, 3 Otto, 163; Smith v. Hunt et ok, 2 Eob. E. 216; 
 Moore et ah v. Holt, 10 Grat. 284. But as to attachments at law, see 2 Barton's 
 Law Pr. 951, and Goodman v. Henry, 42 W. Va. 527. 
 
 '' Magill t>. Manson, 20 Grat. 527. 
 
 ' O'Brien et als v. Stephens et ah, 11 Grat. 610. 
 
 * Ibid, and Fisher & Bro. v. March, 26 Grat. 765; Peny and Wife v. Euby et al, 
 81 Va. 328. 
 
 ^Pulliam V. Ayler, 15 Grat. 54; Wynn v. Wyatt's Adm'x, 11 Leigh, 584. 
 
 * Cirode v. Buchanan's Adm'r, 22 Grat. 205. But that must be the purpose of 
 the bill. Post, I 188, " Procedure by Attachments," &c. 
 
 ' Magill V. Manson, 20 Grat. 527. 
 
 * Kyle & Co. v. Conelly, 3 Leigh, 719. It must show on its face that it was 
 sworn to. Connor's Adm'r v. Smith, 36 W. Va. 788. In Virginia the statute 
 \l 2959) provides that, "if at the time of or after the institution of any action 
 * * * the plaintiff, his agent or attorney, shall make affidavit." In West 
 
 40 
 
626 • ATTACHMENTS IN CHANCEEY. • § 178 
 
 the former statute an attorney-at-law, as such, could not make the 
 affidavit, yet the present statute^ seems to justify him in so doing. 
 But even under the former statute if the attorney-at-law was 
 authorized so to do he might make it in his capacity of agent or 
 attorney in fact, and he need not have so described himself in the 
 affidavit.^ 
 
 The affidavit may be made before and certified by any one au- 
 thorized to take an affidavit, and the certificate of the officer before 
 whom the affiant appears is conclusive evidence that the statements 
 made were sworn to ; ' but the absence of the jurat, when the 
 affidavit was signed by the officer who administered the oath, was 
 held not to vitiate the attachment.* 
 
 The affidavit is always strictly construed, and any omission of 
 the requirements of the law is fatal to the attachment. For in- 
 stance, the omission of the averment that the claim is "just," 
 when required by the statute, will vitiate the proceeding. So if 
 the oath is required in positive terms, it is not sufficient for affiant 
 to swear that " he is informed and believes." "Where the statute 
 uses the language " where there is good reason to believe," it is 
 not complied with by the expression " it is the affiant's belief." 
 And so when it says "to the best of his knowledge and beKef ;" 
 "to the best of his belief" simply is insufficient; and when it 
 says " verily believes " the language " to the best of his knowledge 
 and belief," is not sufficient. An affidavit that affiant " thinks " 
 is not equivalent to an affidavit that he " believes," and has been 
 held to be insufficient.'' 
 
 But if the language of the affidavit necessarily implies the facts, 
 
 Virginia (Code, Ch. 106, ? 1) : " When any action at law or suit in equity is about 
 to be or is instituted * * * on filing with the clerk * * * his own affi- 
 davit or that of some credible person." 
 
 ^ "The plaintifi', his agent or attorney." ? 2959. 
 
 2 Benn v. Hatcher, 81 Va. 261. 
 
 ' Daniel on Attachments, ?§ 13, 17, 18. 
 
 * Farmers Bank of Virginia v. Gettinger, 4 W. Va. 305. 
 
 » Kittenhouse v. Hannan, 7 W. Va. 387; United States Baking Co. v. Bachman, 
 38 W. Va. 84. 
 
§ 178 THE AFFIDAVIT. 627 
 
 it is safBcient.' Thus, where the affidavit was that the defendant 
 was indebted to the plaintiff " in a sum exceeding two thousand 
 dollars," it was held to specify with certainty that at least that 
 sum was due.^ Where the statute says, " is a non-resident " affi- 
 davit that " he is not now an inhabitant," was held to be a com- 
 pliance, but " that he is not at this time within the State," was 
 held insufficient. If attachment is authorized " where debtor is 
 removing," affidavit "that he has removed" will not sustain it. 
 Where the statute uses an alternative, the affidavit may also, but 
 it must add the material fact " so that process of execution, etc., 
 will be unavailing," etc.* 
 
 In West Virginia, the form of the affidavit is that affiant be- 
 lieves, etc., " and except where it is merely of the non-residence 
 of the defendant, the affiant must also state in his affidavit the 
 material facts relied on by him to show the existence of the 
 grounds upon which his application is based." * 
 
 In Virginia the affidavit, in case of non-residency, is that the 
 " defendant or one of the defendants is a foreign corporation, or is 
 not a resident of this State, and has estate or debts owing to such 
 defendant within the county or corporation in which the action is, 
 or is sued with a 'defendant residing therein;" and whatever be 
 the grounds of the attachment, the affidavit must be " to the best 
 of affiant's belief." = 
 
 The affidavit in a suit in equity must conform to the requisites 
 of an affidavit in a suit at law, as near as the nature of the case 
 will admit.^ Hence the amount of the debt must be stated,*^ and 
 that it is just ; but it is not necessary to state the character of the 
 
 1 ainch Eiver Min. Co. v. Harrison, 91 Va. 128. 
 
 * " At least" held equivalent to " at the least." Connor u. Parker, 39 W. Va. 
 521; 20 S. E. R. 583. Omission of the words "at the least" held fatal. Dulin 
 V. McCan, 39 W. Va. 721; 20 S. E. E. 681. See 2 Bart. Law Pr., p. 933, et seq. 
 
 ' Daniel on Attachments, § 27. 
 
 *Code W. Va., Ch. 106, I 1; Copehart v. Dowery, 10 W. Va. 137. 
 
 * Code, ? 2959 as amended by act of February 20, 1892, Acts 1891-2, p. 520. 
 « See Post, Vol. 2, Appendix, Forms; Code, § 2964. 
 
 ' Mcauney & Co. v. Jackson, 6 Grat. 96. 
 
628 ATTACHMENTS IN CHANCEHY. § 178 
 
 claim, whether due by bond, note, account, or otherwise ; ' but the 
 interest need not necessarily be included therein,^ nor need a set- 
 off be noticed.* 
 
 Where it appears from the bill in a suit in equity against an 
 absent defendant that the court has jurisdiction of the case, it is 
 not necessary that the affidavit should state that the defendant has 
 property in the county where the suit is brought, but it is suf- 
 ficient if it states that he has property and effects in any county 
 in the State/ 
 
 An affidavit of non-residence must be made before there can be 
 a decree ; ° but by the terms of the statute the affidavit may be 
 made " at the time of or after the institution of the suit." ' The 
 language of the statute of West Virginia ^ is, " when any action at 
 law or suit in equity is about to be or is instituted for the recovery 
 of any claim or debt arising out of contract, or to recover dam- 
 ages for any wrong, the plaintiff at the commencement of the action 
 or suit or at any time thereafter, and before judgment, may have 
 an order of attachment against the property of the defendant on 
 filing with the clerk of the court in which such action or suit is 
 about to be or is brought his own affidavit," etc., from which it 
 seems fair to conclude that, while the affidavit "may be filed after 
 the suit is brought, it must be before there is any order to attach. 
 Upon objection to an attachment under the Virginia statute, that 
 the affidavit of non-residence had not been made and filed before 
 the attachment issued, the court of appeals * said, " It has never 
 been the practice, so far as I have been able to learn, to file an 
 affidavit of non-residence with the clerk in order to authorize him 
 
 ' Daniel on Attachments, ? 19. 
 
 ^Id., ?25. 
 
 * Anderson v. Johnson et ah, 32 Grat. 558. 
 
 = Brien v. Pitman, 12 Leigh, 379. 
 
 « Code, I 2964; Fisher & Bro. v. March, 26 Grat. 765. 
 
 'CodeW. Va., Ch. 106, | 1. 
 
 8 Moore i>. Holt, 10 Grat. 284. 
 
§ 178 THE AFFIDAVIT. 629 
 
 to issue the subpoena, and to make such an endorsement in the 
 nature of an attachment thereon as the plaintiff's counsel may 
 direct. According to the long established usage oT the State, such 
 an endorsement, without a previous affidavit, serves as a notice to 
 the home defendant not to part with the effects in his hands with- 
 out leave of court, and when served upon the home defendant, 
 creates a lien in favor of the creditor, which neither the absent 
 debtor nor the garnishee, by any act of theirs, nor any third per- 
 son, by an attachment or other process of law subsequently levied, 
 could deprive him." ^ 
 
 In a later case ^ it was held that where the suit is in equity 
 against a non-resident under the eleventh section of chapter one 
 hundred and forty-eight of the Code of eighteen hundred and 
 seventy-three, the attachment is not a necessary part of the pro- 
 ceedings ; and that after the bill is filed and the defendant has 
 appeared the affidavit may be made and the attachment sued out. 
 
 The suit of Moore v. Holt, 10 Grat. 2^4, supra, was not a pro- 
 ceeding in equity, and the case of O'Brien v. Stephens, 11 Grat. 
 610, only went to the extent of deciding that an attachment pro- 
 ceeding properly conducted might be engrafted upon a pending 
 suit, not originally designed for that purpose. In the case, how- 
 ever, of Cirode v. Buchanan, 22 Grat. 212, the bill set out the 
 claim of the plaintiff, charged that the debtor was a non-resident, 
 and had property in the State of Virginia, made the proper persons 
 parties to the suit, and prayed for the sale of the real estate, its 
 application to the payment of _ the debts, and for general relief; 
 but the bill did not pray that the property might be attached, and 
 the complainant filed no affidavit for an attachment, nor was there 
 an endorsement on the subpoena directing an attachment. Subse- 
 quently, however, an affidavit of non-residence was made, about 
 ten months before the debtor filed his petition in bankruptcy. The 
 
 'Citing Smith v. Jenny, 4 H. & M. 440; McKim v. Fulton, 6 Call. 106; Wil- 
 liamson V. Bowie, 6 Munf. 176; Erskine v. Stanley, 12 Leigh, 406. 
 "O'Brien v. Stephens, 11 Grat. 610; Daniel on Attachments, § 16. 
 
630 ATTACHMENTS IN CHANCERY. § 179 
 
 assignee in bankruptcy appeared, filed his answer and contested 
 the validity of the attachment ; but the court of appeals sustained 
 the attachment, Ind held that the affidavit of non-residence made 
 in order to a publication, was necessary where there was no an- 
 swer or appearance of the non-resident debtor ; " but if the case 
 be regularly matured for hearing, and be fully proved, the plaintiff 
 is entitled t6 a decree accordingly, except against parties or persons 
 who may be injured by his non-compliance with some preliminary 
 requisition of the statute. He is certainly entitled to such decree 
 against the debtor himself, and all who stand in his shoes." ' 
 
 The Process. 
 
 § 179. The process in an attachment in chancery consists of an 
 endorsement by the clerk on the ordinary summons, of an order to 
 the officer to whom it is directed, to attach the specific property (if 
 any is mentioned in the affidavit), and the debts due, or to become 
 due, by other defendants (if any) to the defendant against whom 
 the claim is, and also any other estate of that defendant, whether 
 in his own hands or in the hands of other defendants.^ This is 
 all that is necessary to be mentioned in the endorsement on the 
 summons ; and the clerk need not there state the character or 
 amount of the claim for which the attachment is issued, for this 
 should be done in the bill.^ It has even been held,* that where 
 the bill stated a good cause for ^n attachment suit, an endorsement 
 on the subpoena was not necessary to render the attachment valid ; 
 and if an endorsement was necessary, that the order of publication" 
 made on the oath of non-residence was in the nature of process 
 sufficient to sustain the attachment. 
 
 The process may be directed to the sheriff, sergeant or constable 
 
 ' Few cases decided by the court of appeals of Virginia have been received with 
 less favor by the bar than this. The quotation is from p. 216. 
 ^ Code, i 2964; Coda v. Thompson, 39 W. Va. 67. 
 » Moore et als v. Holt, 10 Grat. 284; McCluney v. Jackson, 6 Grat. 96. 
 'Cirode v. Buchanan, Adm'r, 22 Grat. 205. 
 ' For the mode of perfecting a publication, see Ante, ^ 88. 
 
§ 180 THE SERVICE AND RETURN OE PROCESS. 631 
 
 of any county or corporation, and if issued in a pending suit it 
 shall be returnable to a term of the court in which the suit is 
 pending, or to some rule day thereof.' 
 
 The Service and Return of Process.. 
 
 § 180. The process in a chancery attachment must be executed 
 in the same manner, and it has the same effect as process in an 
 attachment at law.^ It may be levied upon any real estate by 
 such estate being mentioned and described in an endorsement on 
 such attachment, made by the officer to whom it is delivered for 
 service, to the following effect : " Levied on the following real es- 
 tate of the defendant, A. B. (or A. B. and C. D.), to-wit : (here 
 
 describe the estate), this the day of . E. F., Sheriff (or 
 
 other of&oer)," and by service of the attachment on the person, if 
 any, in possession of such estate. The attachment in any case 
 may be served as a notice is required to be served by section thirty- 
 two hundred and seven.^ 
 
 The officer levying the attachment must show in his return the 
 date and manner of the service or execution thereof, on each per- 
 son and parcel of property, and also give a list and description of 
 the property (if any) taken under the attachment.^ It was held, 
 however, that an attachment was not defective because it did not 
 designate any person in whose possession property or effects of the 
 absent debtor was found." 
 
 The levy upon real estate is not sufficiently made unless such 
 estate is mentioned, or described in the endorsement on the attach- 
 
 > Code, § 2765 as amended by act of February 27, 1894, Acts 1893-4, p. 495. 
 Eetom need not show that service was made by the officer in his bailiwick, but he 
 has no power to execute the writ except in his own bailiwick. Guarantee Co. v. 
 First National Bank, 95 Va. 481; 28 S. E. E. 910. 
 
 ' Code, ? 2964. The property in order to be properly levied on must be under 
 the control and within the view of the officer. See notes to Hollister v. Goodale, 
 8 Conn. 332; 21 Am. Dec. 677 to 680. 
 
 'Code, i 2967. See Code W. Va., Ch. 106, § 5. 
 
 *Code, 5 2969. 
 
 'Pnlliam, &c. ... Aler, 15 Grat. 54. 
 
632 ATTACHMENTS IN CHANCBEY. § 181 
 
 ment ; ^ but the process may be served upon individuals, corpora- 
 tions, and unincorporated common carriers, in the same manner 
 that is requisite for proper service of other legal process ; ^ and if 
 the defendant himself is in possession of his effects within the 
 State a copy of the attachment must be served on him in order to 
 create a lien.' 
 
 The person in whose hands are effects of or debts due to the 
 defendant debtor must be summoned to appear as a garnishee at 
 the first day of the court to which the attachment is returnable ; 
 or if it be returnable at rules, at the first day of the next term 
 after it is returnable ; and the officer must also return a list and 
 description of the property taken* (if any) under the attachment, 
 and also the date of the service of the attachment, or the execution 
 thereof on each person and parcel of property/ But although the 
 service on the garnishee and the return thereof be irregular, yet if 
 the garnishee appears to the action, and defend it without objecting 
 to the irregularity, he cannot afterwards make objection in the 
 appellate court.* 
 
 What is Suhjeat to Levy. 
 
 § 181. The endorsement on the summons, in the nature of an 
 attachment, cannot operate except as notice to the home defendant 
 not to part with effects of the debtor in his hands, unless the 
 proper affidavit has been made. If the plaintiff desires the officer 
 to take the feffects out of the hands of the garnishee, or to require 
 
 ' Clark V. Ward, 12 Grat. 448. But see Cirode v. Buchanan, 22 Grat. 205. The 
 return must show that the attachment was levied upon the property as the property 
 of the defendant in order to make a valid levy on real estate. And where the pro- 
 ceeding was against a non-resident, and the officer returned that he "served the 
 
 summons on by delivering a copy to him," and that "he resided on the 
 
 premises described," it was held not to show a valid levy. Robertson v. Hoge, 88 
 Va. 124; Ofilerdinger v. Ford, 86 Va. 917. 
 
 2 Ante, I 81. 
 
 ' Daniel on Attachments, § 99. 
 
 * Clay V. Neilson, 5 Band. 596. 
 
 ' Code, § 2969. 
 
 «Pulliam V. Aler, 15 Grat. 54. 
 
§181 WHAT IS SUBJECT TO LEVY. 633 
 
 him to give security to have them forthcoming, or seeks an injunc- 
 tion or order from the court to serve these purposes, he must file 
 an affidavit according to the terms of the statute.^ 
 
 If the plaintiff shall, at the time of suing out the attachment, 
 or afterwards, give bond with security, approved by the clerk or 
 justice who issued the attachment, in a penalty of at least double 
 the amount of the claim sworn to or sued for, with condition to 
 pay all costs and damages which may be awarded against him, or 
 sustained by any person by reason of his suing out the attachment, 
 the officer shall take possession of the property specified in the 
 attachment, or when no such property is specified, of any estate 
 or effects of the defendant, or so much thereof as is sufficient to 
 pay the plaintiff's claim. When such bond is given the fact shall 
 be endorsed on the attachment, or be certified by the clerk or jus- 
 tice, to the officer who shall return the certificate with the attach- 
 ment ; and the bond, when taken by a justice, shall be returned 
 by him to, and filed in the clerk's office of the court to which the 
 attachment is returnable.^ 
 
 The right to take possession upon the bond being thus executed, 
 is confined to personal property, for from its nature real estate 
 cannot be the subject of seizure or garnishment.^ 
 
 This bond, as required under the statute of Virginia, is not 
 intended to be made for the ease of the officer,* nor to serve the 
 purpose that an indemnifying bond, taken under an execution, 
 does ; but it is made for. the benefit of the owner of the property 
 
 1 Daniel on Attachments, ? 89; Moore v. Holt, 10 Grat. 287. 
 
 " Code, I 2968. Under the statute of West Virginia the bond must be condi- 
 tioned also "to pay to any claimant of any property seized or sold under or by 
 virtue of said attachment all damages which he may recover in consequence of such 
 seizure or sale; and also to warrant and defend to any purchaser of the property 
 such estate or interest therein as is sold." Code W. Va., Ch. 106, ? 6. 
 
 ' Erakme v. Staley, 12 Leigh, 406. 
 
 * But under the statute of West Yirginia, it is expressly provided that " if such 
 bond is given, no action shall be maintained against the officer levying such attach- 
 ment upon the property or effects not belonging to the debtor, unless it shall ap- 
 pear that such levy was wilfully and knowingly made." Code W.Va., Ch. 106, 1 6. 
 
634 ATTACHMENTS IN GHANCEEY. § 181 
 
 ' against which the attachment issues, and to indemnify him against 
 the consequences of acts which are authorized by the attachment. 
 It covers no damages for taking property which the attachment 
 does not command to be taken, for such damages are not sustained 
 by reason of suing out the attachment, but are due to the unau- 
 thorized act of the officer. The undertaking of the obligors is 
 that the attachment is properly sued out, and the claim of the 
 plaintiff well founded. They do not undertake that the officer 
 will commit no trespass. They do not authorize him to levy on 
 any property which he may think proper or the plaintiff may di- 
 rect him to levy on.* Nor does the taking of this bond bar an 
 action against a sheriff, although he may sue upon it for his exon- 
 eration, to the extent that the obligors are liable, if .his loss be so 
 much. If, however, a doubt arise about the right to levy on the 
 property, in addition to this bond the sheriff may require an in- 
 demnifying bond, as he may before levying an execution, and to 
 the same extent as so required will it protect him when he takes it 
 under an attachment.^ 
 
 The bond is required to be given by the plaintiff at the time of 
 suing out the attachment, or afterwards ; and as the attachment 
 may be issued " on complaint by the lessor or his agent," or in 
 cases other than those for rent, on the affidavit of the agent, "or 
 some credible person," ^ it follows that the bond may be given by 
 the agent ; but in such cases care must be taken that the recitals 
 shall be according to the facts, setting forth the attachment as that 
 of the plaintiff, and not the agent, and stipulating that the plaintiff 
 shall pay all damages, etc. ; for all summary proceedings are specially 
 required to be regular, and for not conforming to the statute may 
 be quashed ex officio as affording no ground of jurisdiction.^ 
 
 ' Davis V. Commonwealth, 13 Grat. 145. 
 
 2 Code, ? 3001 as amended, Acts 1897-8, p. 505; ?? 3002, 3003. The officer 
 levying on exempt property has been held to be a trespasser. Kiff d. Old Colony 
 & Newport E. E. Co., 117 Mass. 591; 19 Am. E. 429. 
 
 'CodeW. Va., Ch. 106, H. 
 
 * Minor's Institutes, Vol. 4, Pt. 1, p. 479, citing Jones et ah v. Anderson et aU, 
 
§ 181 WHAT IS SUBJECT TO LEVY. 635 
 
 As to the person who shall execute the bond, it is moreover 
 provided that any bond authorized or required by any section of 
 the chapter of the Code on attachments,' may be given either by 
 the party himself or by any other person.^ 
 
 The officer to whom an attachment is directed must act in pur- 
 suance thereof, if valid, and in proper form ; ' and he must act 
 with proper diligence, attach sufficient property, and keep it safely 
 pending the suit if taken into his possession.* 
 
 He can justify no act which the writ does not authorize, although 
 done under color of the writ. If he takes the goods of A, under 
 attachment against B, he is a trespasser,^ and if the plaintiff direct 
 it he also is a trespasser.* The sheriff is also equally liable if a 
 trespass is committed by his deputy.' 
 
 The execution of a bond is not necessary" to a levy upon real 
 estate, and so also a lien may be secured by notice to the garnishee, 
 upon any debts due to or effects of the debtor in his hands ; and 
 where the bond is executed they may be seized and taken into 
 possession. 
 
 What is the debtor's property depends upon the evidence in 
 each particular case, when the right or title to the same is con- 
 tested by a third person ; but it has been held that where one by 
 a verbal contract sold a house and lot to another who paid all the 
 purchase money, and was put into possession, the vendor had no 
 interest in the property which might be subjected by attachment 
 against him as an absent debtor to the payment of his debt.' This 
 
 7 Leigh, 311, 312, 313; Kyles & Co. v. Connelly, 3 Leigh, 719; Mautzu. Hundley, 
 2 H. &. M. 308; McCluney & Co. u. Jackson, 6 Grat. 96. - 
 
 1 Code, Ch. 141. 
 
 ' Code, ? 2990. 
 
 ' Daniel on Attachments, ? 91. 9 
 
 *Ibid. 
 
 ' Ibid, and Davis v. Commonwealth, 13 Grat. 142; Sangster v. Commonwealth, 
 17 Grat. 124. 
 
 ' Davis V. Commonwealth, 13 Grat. 142. 
 
 ' Mo^by V. Moaby, 9 Grat. 589. 
 
 'Hicks V. Eiddick, 28 Grat. 418. 
 
636 ATTACHMENTS IN CHANCERY. § 181 
 
 decision was based upon the construction given in the case of 
 Floyd, Trustee, v. Harding, 28 Grat. 401, to the recording act of 
 Virginia,' which determined that where real estate was sold by 
 parol contract, no deed or agreement was required to be recorded 
 in order to make the sale good against the creditors of the grantor. 
 
 To meet this decision, however, the statute' now provides that 
 " every contract, not in writing, made in respect to real estate or 
 goods and chattels, in consideration of marriage, or made for the 
 conveyance or sale of real estate, on a term therein of more than 
 five years, shall be void, both at law and in equity, as to pur- 
 chasers for valuable consideration without notice and creditors." 
 
 It is provided by statute,' that the attachment mdy be levied 
 " upon any estate, real or personal, of the defendant, or so much 
 thereof as is sufficient to pay the amount for which it issues, and 
 may be levied upon any estate of the defendant, whether the same 
 be in the county or corporation where the suit is, or in any other ; " 
 upon "specific property ; " * upon " estate or effects of the defen- 
 dant ; " ° upon " debts due or to become due by other defendants 
 
 » Code 1873, Ch. 114, § 5. ' Code, 5 2463. 
 
 ' Code, 2 2967. The undivided interest of a tenant in conunon may be attached. 
 Curry v. Hale, 15 W. Va. 867. Money in specie may be attached (Sheldon v. 
 Boot, 16 Pick. 567; 28 Am. Dec. 266), even when it is in the attaching creditor's 
 own hands. Moyer v. Lobenger, 4 Watts. 390; 28 Am. Dec. 723. Estate in re- 
 mainder may be attached. Lockwood v. Nye, 2 Swan. 515; 58 Am. Dec. 73. 
 Shares of stock so liable. C. & O. E. R. Co. v. Paine & Co., 29 Grat. 502; S. V. 
 R. R. Co. D. GrifEth, 76 Va. 913. See 1 Barton's Law Pr., § 224 and cases cited 
 in the notes. Property, however, to be subject to attachment, must be in the 
 power or under the control of the debtor, and it is held that a chattel pawned or 
 mortgaged is not attachable in an action against the pawner or mortgagor. NeUl 
 V. Rogers Bros. Produce Co., W. Va.; 23 S. E. E. 702. United States treasury 
 notes may be attached. State v. Lawson, 7 Ark. 391; 46 Am. Deo. 293. Standing 
 grass not attachable. Rogers v. Elliott, 59 N. H. 201; 47 Am. R. 192. 
 
 4 Code, § 2960. 
 
 ' Id. As to attaching negotiable notes, see Sheets v. Culven, 14 Louisiana, 449; 
 33 Am. Dec. 593; 2 Barton's Law Pr., p. 956, notes. Property in the custody of 
 the law not subject to attachment. Hackley's Adm'r v. Singert, 5 B. Monroe 86- 
 41 Am. Dec. 256. As to the effect of attachments on extra territorial transfers of 
 personal property, see Winslow v. Fletcher, 53 Conn. 390; 55 Am. R. 122; notes, 
 129 to 140. 
 
§ 181 WHAT IS SUBJECT TO LEVY. 637 
 
 (if any) to the defendant against whom the claim is, and also any 
 other estate of that defendant, whether in his own hands or in 
 the hands of other defendants ; " ^ upon " the personal property, 
 choses in action, and other securities of the defendant against 
 whom the claim is, in the hands of or due from any such gar- 
 nishee on whom it is so served, and on any real estate mentioned 
 in an endorsement on the attachment or subpoena ; " ^ and upon 
 " any goods, chattels, money, securities, or other effects belonging 
 to the said defendant." ' The term " real estate " is construed to 
 mean lands, tenements, and hereditaments, and all rights thereto 
 and interests therein, other than a chattel interest ; and the words 
 " personal estate " includes chattels real, and such other estate as 
 upon the death of the owner intestate, would devolve upon his 
 personal representative.* " Land " means the whole surface of the 
 earth upwards to the sky, and downwards to the centre, including 
 buildings, improvements, mines of metal, and other fossils, which 
 are the property of the owner of the surface. Chattel interests 
 in land, or chattels real, are personal estate, and are such chattels 
 as concern or savor of the realty and issue out of or are annexed 
 to real estate. They are distinguished from freehold interests by 
 having the period of their existence fixed and limited, either for a 
 time certain, or till such a particular sum be raised out of such a 
 particular income. In chattels real are included terms for years 
 of houses, or lands, mortgage terms, estate by extent or elegit, and 
 interests for years in commons, rents,' estovers, and the like. A 
 lease for ten thousand years, if A should so long live, is a chattel 
 real.^ 
 
 As a general rule, all goods and chattels of a deceased person, 
 
 ' Code, ? 2964. 
 
 ' Code, 2 2971. 
 
 ' Code, § 2976. 
 
 * Code, J 9, clause 10. 
 ' ^Held, in case decided under former statute (Rev. Code 1819, p. 474), that at- 
 tachment only binds rents due at the time it is served. Haffey, &c. v. Miller, &c., 
 6 Grat. 454. 
 
 ^ Daniel on Attachments, ^ 116. 
 
638 ATTACHMENTS IN CHANCBEY. § 181 
 
 except annuities, whether they be in possession or in action, vested 
 or contingent, real or personal, legal or equitable, devolve upon 
 his personal representative. "Goods," or "all goods," or "all 
 goods and chattels " comprehend all personal estate, stock, bonds, 
 notes, money, plate, furniture, and also leases for years, cattle, 
 corp, debts, and the like. "Chose in action" signifies a personal 
 right not reduced to possession, but recoverable by suit at law, 
 and includes money due on bond, note or other contract, and dam- 
 ages due for breach of covenant and for the detention of chattels. 
 " Effects " is equivalent to property or worldly substance, and in 
 a gift " of all my effects " will carry the whole personal estate. 
 It has been held to be more comprehensive than goods, as includ- 
 ing fixtures ' which " goods " will not include, but without the 
 word " real " it does not comprehend land, though followed by 
 the words " of what nature, kind or quality soever." A security 
 which may be held as property, signifies an instrument given to 
 secure the performance of an act or contract.^ 
 
 In West Virginia the property of a non-resident married woman 
 situated in that State may be proceeded against by attachment, and 
 the phrase "in rem" in § 16, Ch. 66 of the Code, in connection 
 with suits against married women, means " quad in rem," and the 
 suit is inter partes} But it is also there held that a claim against 
 the separate estate of a married woman could, in that State, be en- 
 forced only by a suit in equity, and by no personal decree until the 
 act of 1893 (Ch. 15, p. 6), amending Ch. 66 of the Code,* which 
 is E^ain amended by act of February 21, 1895, Acts 1895, p. 21. 
 
 ' What are fixtures in a manufacturing establishment. Green v. Philips et ah, 
 26 Grat. 752. See also Smith's L. Cas., Vol. 2, p. 254; Shelton v. Ficklin, Trus- 
 tee, a als, 32 Grat. 727; 2 Barton's Law Pr. 801. 
 
 ' Daniel on Attachments, ? 117. 
 
 "Sams on Attachments, 344, citing Dulin v. McCan, 39 W. Va. 721; 20 S. E. 
 K. 681. 
 
 *Sams on Attachments, 398, citing Wick v. Dawson, 42 W. Va. 43; 24 S. E. 
 E. 687. See act of February 21, 1895, Acts 1895, p. 21, amending former acts in 
 relation to the property rights of and suits by and against married women in West 
 Virginia. Post, Vol. 2, § 325. 
 
§ 181 WHAT IS SUBJECT TO LEVY. 639 
 
 In Virginia the laws governing the rights of married women to 
 hold property have been greatly changed by the Code of 1888.' 
 The existence of separate equitable estates, the special subjects of 
 jurisdiction in equity, is not affected by changes in the statute,^ but 
 inasmuch as .a woman now is legally entitled to all that she can 
 acquire or become entitled to in any manner whatever ; ^ may en- 
 gage in trade (except as a partner with her husband) for her sep- 
 arate use and benefit, without her estate being subject to the use, 
 control or disposal of her husband, or to his debts or liabilities ; ^ 
 and she having the right and power to hold, control and use her 
 separate estate as if she was a f em/me sole (subject only to her hus- 
 band's right of curtesy in her real estate);" with power to make 
 contracts, as if sole, in respect to her trade, business, etc., and as 
 to her separate estate ; ^ and having the right to sue and being 
 liable to be sued upon all such contracts as if she was unmarried,^ 
 in which cases personal judgments or decree may be rendered for 
 or against her to be enforced against her and her separate estate 
 in the same manner as if she was unmarried,' without her husband 
 being joined, unless interest requires it, in any such suit by or 
 against her,' and these contracts, ordinarily enforceable only by 
 actions at law, being, where the conditions fixed by the statute 
 justifying attachments exist, in attachment proceedings enforceable 
 also in chancery, it follows that in all such cases, unless it be that 
 of a non-resident married woman, wherever an attachment can 
 be maintained against a man or a femme sole, it lies equally against 
 a married woman. 
 
 ^ Code, ? 2284 to J 2298, with amendments as set forth on pp. 260, 261, Supple- 
 ment to Code of Va. 1898; 1 Bart. Law Pr. 223 et seq.; Id., p. 1040; Post, I 325. 
 
 ' Code, I 2294. 
 
 ' Code, I 2284. 
 
 * Code, I 2285. 
 
 ' Code, I 2286. 
 
 «Code, I 2288. 
 
 ' Code, I 2288. But as to the liability of her property upon other contracts than 
 those thus specified, see Post, Vol. 2, I 325. 
 
 5 Code, I 2289. » Code, I 2297. 
 
640 ATTACHMENTS IN CHANCERY. § 181 
 
 If the debtor be a non-resident married woman having property 
 within the State of Virginia, and especially if her obligation was 
 created in some State having laws different from those of Vir- 
 ginia, the question is involved in more diiRculty. 
 
 The general rule is that the status of a married woman and her 
 capacity to carry on business in a foreign State are determined by 
 the law of her domicile.^ But the forms of contracts she must 
 use and the manner in which she must sue are to be determined 
 by the lex loci aotionis.^ Yet it has been held that where a married 
 woman, having a separate estate in lands in Missouri, made a con- 
 tract in another State, her capacity to make the contract, and its 
 validity, were to be determined by the laws of Missouri, in a suit 
 in a Missouri court to enforce such contract against her separate 
 estate there.' This, it must be observed, was a contract relating 
 to land. But the ability of a party to contract depends always 
 upon the law of the domicile, when the question is one of personal 
 ability or disability,^ or at least that question is to be determined 
 by the place at which the person is when the contract is made.° 
 
 It seems to follow then that the contract of a married woman 
 not enforceable against her at the place where it is made cannot be 
 enforced in this State by attachment of personal property here. 
 
 Property in the hands of the law cannot be attached, although 
 a sheriff, charged with execution of several attachments, may levy 
 them on the same property, or appropriate any surplus that may 
 remain after the first levy to satisfy the others by order of court." 
 
 ^ The extent to which a married woman may bind her separate estate is prima 
 fade determined by the law of the State in which the contract is made, it being 
 also the place of her domicile (Dulin v. McCan, 39 W. Va. 721 ), but the liability 
 of her separate real estate is governed by the law of the State where the real estate 
 is. Wick V. Dawson, 42 W. Va. 43. 
 
 ' Am. & Eng. Encyc. of Law, Vol. 3, p. 575, and cases cited in the notes. 
 
 ^ Id.; Johnston v. Gantry, 11 Mo. App. 322, Wick v. Dawson, 42 W. Va. 43. 
 
 * Am. & Eng. Encyc. of Law, Vol. 3, p. 573. 
 
 ^Id. 
 
 « Daniel on Attachments, J 119; Brewer v. Hutton, W. Va.; 29 8. E. B. 87; 
 Prentiss v. Bliss, 4 Vermont, 513; 25 Am. Dec. 631. But it has been held. 
 
§ 181 WHAT 18 SUBJECT TO LEVY. 641 
 
 It is also provided by statute ' that estate of every kind, holden 
 or possessed in trust, shall be subject to debts and changes of the 
 person to whose use or for whose benefit they are holden or pos- 
 sessed, as they would be if those persons owned the like interest 
 in the things holden or possessed, as in the uses or trusts thereof. 
 This enactment rendering trust estates liable to levy, extends to 
 simple trusts for the benefit of the debtor only. It is taken from 
 a similar provision in the English statute of frauds (29 Car. 2, 
 Ch. 3, § 10), but it is more extensive in its operation, embracing 
 trusts of personal as well as real property. If property is con- 
 veyed to A in trust for the use of B, it would be as liable to levy 
 in an attachment against B as if B had the legal title. A benefit 
 
 that where an officer took goods from a prisoner they were liable to be garnisheed 
 in his hands in a civil action against the prisoner. Keifsnyder v. Lee, 44 Iowa, 
 101 ; 24 Am. R. 733. The exemption of property in the hands of officers of the 
 law from attachments has been held to extend to the unpaid salary of a teacher of 
 the public school (Hightower v. Slaton, 54 Ga. 108; 21 Am. K. 273), and to 
 salaries and wages due to officers or servants of a municipal corporation. Memphis 
 V. Laski, 9 Heisk. 511; 24 Am. E. 327; Wallace v. Lawyer, 54 Ind. 501; 23 Am. 
 R. 661; McLeUan v. Young, 54 Ga. 399; 24 Am. B. 276. Contra, Rodman v. Mus- 
 selman, 12 Bush. 354; 23 Am. B. 724. Where money wa.s deposited with the clerk 
 of a court, in pursuance of law, in place of an undertaking on appeal, it was held 
 liable to attachment by a third person against the depositor. Dunlop v. Patterson 
 Fire Ins. Co., 74 N. Y. 145; 30 Am. R. 283. Contra, Hardy v. Til ton, 83 Me. 
 195; 28 Am. E. 34, and note, 35. For discussion of statutes exempting tools from 
 attachments; what are considered as tools, and the effect of their being owned by 
 a partnership, see Kilbum v. Demming, 2 Vermont, 404, 21 Am. Dec. 543, and 
 the notes from page 545 to 554. See also Spooner i'. Fletcher, 3 Vermont, 133; 
 21 Am. Dec. 579. Mill saw not exempt as a tool. Batchelder v. Sharpleigh, 10 
 Me. 135; 25 Am. Dec. 213. The exemption laws were held to be applicable to a 
 non-resident whose property had strayed into the jurisdiction. Haskill v. Andros, 
 4 Vermont, 609; 24 Am. Dec. 645. 
 
 ' Code, i 2428. For the statutes and decisions as to property exempt from debt 
 generally, see Post, § 291. In West Virginia the statute (act February 12, 1897, 
 Acts 1897, p. 102) forbids a suit or an assignment of any claim or liability of any 
 kind for the purpose of having payment enforced out of wages exempt by statute, 
 by proceeding in attachment or garnishment in courts or before justices of the 
 peace in any other State than in the State of West Virginia, or the sending of any 
 claim out of the State for that purpose, and makes the person so suing, assigning, 
 sending, etc., liable in an action of debt to the person from whom payment is thus 
 enforced. Similar provision is made in Virginia by act of March 1, 1898, Acts 
 1897-8, p. 667 ; Sup. to Cgde, ? 3652 a„ 
 41 
 
642 ATTACHMENTS IN CHANCERY. § 182 
 
 secured to a husband jointly with his wife and children cannot 
 be subjected by his creditors ; and a settlement which gives to the 
 grantor a bare maintenance with his wife, and provides that the 
 property shall not be subject to his debts thereafter contracted, 
 will not vest him with such an interest in the property as to sub- 
 ject it to satisfy after contracted debts.' 
 
 -The shares of stock in a joint-stock company, incorporated by 
 and conducting its operations, in whole or in part, in the State, 
 the debtor and owner of the stock being a non-resident, are such 
 estate as is liable to be attached in a suit, either at law or in 
 equity, instituted for that purpose, by one of the creditors of the 
 stockholder ; and such estate may properly be considered, for the 
 purpose of such proceeding, as in the possession of the corporation 
 in which the shares are held, and such a corporation may prgperly 
 be summoned as garnishee in the case.^ An unadjusted loss on a 
 policy of insurance is also liable to attachment.^ 
 
 Tlie Custody and Disposition of Attaehed Property. 
 
 § 182. The defendant against whom a claim is asserted may 
 have the attached property released from the attachment upon 
 giving bond with condition to perform the judgment or decree. 
 Or the property levied on or seized, when the plaintiff has given 
 bond, may be retained by or returned to "the person in whose pos- 
 session it was, on his giving bond with condition to have the same 
 forthcoming at such time and place as the court may require. In 
 either case the bond may be given by the party himself or by any 
 person for him,* and shall be taken by the officer serving the at- 
 tachment, with security payable to the plaintiff; and in a penalty 
 
 ' Daniel on Attachments, I 115, citing Johnston v. Zane, 11 Grat. 552; Coutts 
 V. Walker, 2 Leigh, 268; Markham i'. Guerrant, 4 Leigh, 279; Scott D. Lorraine, 
 6 Munf. 117; Eoanes v. Archer, 4 Leigh, 550; Scott v. Gibson, 5 Munf. 86; 
 Hughes V. Pledge, 1 Leigh, 443; Nickell v. Handly, 10 Grat. 336; Doswell v. 
 Anderson, 1 P. & H. 185. See also Minor's Institutes, Vol. 2, pp. 196, 197. As 
 to spendthrift trusts, see Post, § 287. 
 
 ' Chesapeake & Ohio R. E. Co. v. Paine & Co., 29 Grat. 502. 
 
 'Knox V. Protection Ins. Co., 9 Conn. 430; 25 Am. Dec. 33. *Code, § 2990. 
 
§ 182 CUSTODY AND DISPOSITION OF ATTACHED PROPERTY. 643 
 
 when the property is released from the attachment, at least double 
 the amount or value for which the attachment issued ; and where 
 possession of the property is retained, in a penalty either double 
 the amount claimed in the attachment or double the value of the 
 property retained or returned, at the option of the person giving 
 it.' Every such bond shall be returned by the officer, and filed 
 by the clerk of the court in which the suit is pending, or to which 
 the attachment is returnable ; and the plaintiff may, within thirty 
 days after the return thereof, file exceptions to the same, or to 
 the sufficiency of the security therein. If such exceptions be sus- 
 tained, the court shall rule the officer to file a good bond, with 
 sufficient security, to be approved by it, on or before a certain day 
 to be fixed by the court.^ 
 
 Although the property be not thus replevied, the interest and 
 profits thereof, pending the suit and before decree, may be paid to 
 the defendant, if the court deem it proper, and at any time during 
 such period, the court, or a judge of the circuit or corporation 
 court in vacation, may discharge the attachment, as to the whole 
 of the estate of the defendant against whom the claim is, on his 
 giving bond with security payable to the plaintiff, in a penalty 
 double the value of such estate, with condition, if a decree be 
 rendered for the plaintiff in the suit, to pay the said value, or so 
 much thereof as may be necessary to satisfy the same.' 
 
 If necessary, the court may interpose, by injunction or the ap- 
 pointment of a receiver, to secure and keep the attached property.* 
 By such appointment the court takes possession of the property 
 in suit, preserves it from waste or destruction, secures and collects 
 the proceeds or profits, and ultimately disposes of them according 
 to the rights and priorities of those entitled thereto. The receiver 
 is the officer and representative of the court, subject to its orders, 
 
 1 Code, i 2972; Code W. Va., Ch. 106, ? 6. 
 
 ' Code, § 2973. For liability of officer on the bond, see Offterdinger o. Ford, 
 95 Va. 636; Ante, 633, 634, 635. 
 ' Code, ? 2974. 
 * Code, I 2964. 
 
644 ATTACHMENTS IN CHANCERY. § 182 
 
 and responsible to it for the correct and faithful discharge of his 
 duties.* 
 
 "In the 'case of Erskine v. Staley, 12 Leigh, 406, where a for- 
 eign attachment had been levied on speciiied goods in the hands of 
 a home defendant, and other creditors of the absent debtor had 
 sued out aa attachment at law against him, had levied it on the 
 same goods, and judgment and order of sale had been given in the 
 latter attachment before the former had been decided, it was held 
 that an injunction to stop the sale under the attachment at law 
 ' was regular, and indeed the only remedy the plaintiflPs in the for- 
 eign attachment could resort to.' This decision was cited and ap- 
 proved in Moore v. Holt, 10 Grat. 284." ' 
 
 The property seized under an attachment, or enjoining order of 
 the court, and not replevied or sold before decree, must be kept 
 in the same manner as similar property taken under an execution.^ 
 If it is expensive to keep, or perishable, it may be sold by order 
 of the court, or in vacation thereof by the judge ; but the sale 
 must be made in the same manner as if it was a sale under execu- 
 tion, except that when the claim for which the ateachment was 
 sued out is not yet payable, or the court or judge sees other reason 
 for directing a credit, the sale shall be on credit imtil the time it 
 is payable, or such other time as the court or judge may direct ; 
 and for the proceeds of sale, bond with good security shall be taken, 
 payable to the officer for the benefit of the party entitled, and shall 
 be returned by the officer to the court.'' 
 
 When decree has been rendered in the plaintiff's favor, and on 
 appeal therefrom an appeal bond is given with condition to prose- 
 cute the appeal with effect or pay the debt, interest, costs and 
 damages, as well as the costs of the appeal, the officer in whose 
 custody any attached property may be, shall deliver the same to the 
 owner thereof 
 
 ' Daniel on Attachments, § 148. ^ Ibid., § 103. 
 
 ' Code, ? 905.^ 
 
 * Code, ? 2975. 
 
 5 Code, ? 2989; Code W. Va., Ch. 106, J 28, 
 
§ 182 CUSTODY AND DISPOSITION OF ATTACHED PEOPEETY. 645 
 
 Of the provision of the statute with regard to the appeal bond 
 just cited, the court of appeals of Virginia has said/ ''In terms 
 it applies only to personal property capable of being levied on and 
 taken into the custody of the attaching officer. It has no applica- 
 tion to the attachment lien upon the estate of the debtor, whether 
 it be real or personal, or choses in action. When the appeal bond 
 provided for in that section is given, the officer in whose custody 
 the property may be is required to return the same to the posses- 
 sion of the owner ; but the lien resulting from a proper levy of 
 the attachment is in no manner affected or impaired by the execu- 
 tion of the bond. If the debtor desires to discharge the lien of 
 the attachment he can only accomplish that object by giving bond, 
 in conformity with the provisions of the thirteenth section,^ to 
 perform the judgment or decree of the court." 
 
 A garnishee indebted to the defendant debtor, or having any 
 goods, chattels, money, securities, or other effects belonging to him 
 in his hands, may be ordered by the court to pay the amount so 
 due by him, and to deliver such goods to such person as the court 
 may appoint as receiver ; or such garishee, with the leave of the 
 court, may give bond with sufficient security, payable to such per- 
 son and in such penalty as the court shall prescribe, with condi- 
 tion to pay the amount due by him, and to have such effects forth- 
 coming at such time and place as the court may thereafter require ; 
 provided that the judgment debtor may claim that the amount so 
 found due from the garnishee shall be exempt from the payment 
 of the debt to th6 judgment creditor, and if it shall appear that 
 the judgment debtor has not claimed and held as exempt the 
 amount of his homestead in other property or thing, then the court 
 shall not render a judgment for the amount so found due in favor 
 of the judgment creditor, except it be for the excess of the same 
 over and above the homestead exemption,' unless of course the 
 debt be not liable to the exemption. 
 
 • Magill V. Sauer, 20 Grat. 541. ' Code, | 2972. 
 
 ' Code, ^ 2976. The proviso here set forth is not contained in the statute of 
 West Virginia. 
 
646 ATTACHMENTS IN CHANCERY, § 183 
 
 If the garnishee retains the money, he is chargeable with inter- 
 est, although he be restrained from paying, and his only mode of 
 avoiding this liability has been held to be either by making legal 
 tender or by paying the money into court.' It is difficult to un- 
 derstand, however, how a tender to a party who has no right to 
 receive payment and discharge the debtor can relieve him from 
 liability to pay interest. 
 
 From the time of the service of process upon him the garnishee 
 is not at liberty to change the property, to convert it into money, 
 or to exercise any ownership over it,^ but if it be a debt due from 
 him he may continue to use the money, for it is upon that ground 
 that he is chargeable with interest.^ 
 
 The Decree. 
 
 § 183. When the claim of the plaintiff is established, decree 
 shall be rendered for him, and the court shall order the sale of any 
 effects or real estate which shall not have been previously replevied 
 or sold, and shall direct the proceeds and whatever else is subject 
 to the attachment, including what is embraced in any replevy or 
 forthcoming bond which may have been given, to be applied in 
 satisfaction of the decree. No real estate, however, shall be sold 
 until all other property and money subject to the attachment has 
 been exliausted, and then only so much may be sold as is neces- 
 sary to pay the amount of the decree.^ 
 
 If, however, the defendant against whom the claim is, has not 
 appeared or been served with a copy of the attachment sixty days 
 before the decree,^ the plaintiff is not entitled to a decree for sale 
 
 ' Daniel on Attachments, § 263; Templeman v. Pauntleroy, 3 Rand. 446. Omlra, 
 Am. Leading Cases, Vol. 1, p. 527; Shipman v. Fletcher's Adm'r, 95 Va. 585. 
 
 ^ Daniel on Attachments, J 221. 
 
 * Templeman v. Fauntleroy, 3 Eand. 443, 447; Shipman v. Fletcher, 95 Va. 590. 
 
 *Code, ? 2982; Code W. Va., Ch. 106, I 20. 
 
 ' Anderson v. Johnson et ah, 32 Grat. 558. Service or acceptance of service out- 
 side of the State has only the effect of an order of publication, and such service or 
 acknowledgment of service, more than sixty days before decree, does not affect 
 defendant's right to have the case reheard. Smith, &c. v. Chilton, 77 Va. 535. 
 
§ 183 ■ THE DECREE. 647 
 
 unless and until he shall have given bond with sufficient security 
 in such penalty as the court shall approve, with condition to per- 
 form such future order as may be made upon the appearance of 
 the defendant, and his making defence. If the plaintiff fail to 
 give such bond in a reasonable time, the court shall dispose of the 
 estate attached or the proceeds thereof as to it shall seem just.' 
 
 It is further provided by statute/ that the court shall prescribe 
 the terms of sale as it may deem best, and direct whether it shall 
 be for cash or on credit ; and it may appoint a special commis- 
 sioner to make the sale, who shall be required to give bond before 
 he receives any money under the decree ; or the sheriff of the 
 county or the sergeant of the city may be directed to -make the 
 sale. Such sale must be reported, and confirmed or disapproved 
 by the court, as is done in other cases of judicial sales.* 
 
 The discretion of the court to direct a sale on credit should be 
 exercised where the circumstances show that it ought to be, and 
 may be the subject of examination in the appellate court.^ 
 
 If the debt claimed by the attaching creditor is payable in in- 
 stalments, the court should not direct a sale of the lands to satisfy 
 more than the instalments already due, but should hold the attach- 
 ment a lien on the subject for the instalments afterwards to fall 
 due.' 
 
 No decree can be pronounced in the plaintiff's favor until by 
 legal evidence he has proved his debt ; ^ for the rights and inter- 
 ests of the absent debtor and the creditor must be settled precisely 
 as if they were the only parties before the court ; ' nor can there 
 
 ' Code, J 2983. Bond only required for decree of gale of real estate in West 
 Virginia. Code W. Va.„ Ch. 106, J 22. 
 
 ^Code, § 3397; Code W. Va., Ch. 106, ? 21. 
 
 ' As to which see Post, •? 341 el seq. 
 
 'Daniel on Attachments, ? 203, citing Tennent's Heirs i'. Pattons, 6 Leigh, 196; 
 Haffeys v. Birchetts, 11 Leigh, 83; Goare v. Beuhring, 6 Leigh, 585; Clarke v. 
 Curtis, 11 Leigh, 559; Kyles v. Tait's Adm'r, 6 Grat. 44. 
 
 * Watts V. Kinney, 3 Leigh, 272. The case of Brien v. Pitman, 12 Leigh, 379, 
 was under the statute. 1 R. C, Ch. 123. 
 
 « Gibson v. White & Co., 3 Munf. 94; Joseph v. Pyle, 2 W. Va. 455. 
 
 ' Glassell v. Thomas, 3 Leigh, 124. 
 
648 ATTACHMENTS IN CHANCERY. § 183 
 
 be a decree against a garnishee until the plaintiff has first estab- 
 lished his claim against his debtor.^ But a decree may be ren- 
 dered against a garnishee, although one is also rendered against 
 the defendant debtor/ care being taken to provide against the pay- 
 ment of both decrees. 
 
 The decree establishing the plaintiff's claim, while in form it 
 may be against the defendant, cannot bind him personally or be 
 considered in any collateral proceeding in another State, its effect 
 and operation extending only to the property attached,* unless the 
 defendant appears to the writ, or is regularly summoned in the 
 case, in either of which events a personal decree may be rendered 
 against him as in any other case.* It has also been held that a 
 judgment against a garnishee in a suit by attachment where the 
 debtor was non-resident and not served with process, was not 
 binding against a prior assignee of the debt attached.'' 
 
 If the garnishee appears, he shall be examined on oath ; and if, 
 on such examination, or by his answer to the bill, it is shown that 
 at or after the service of the attachment he was indebted to. the 
 defendant against whom the claim is, or had in his possession or 
 control any goods, chattels, money, securities, or other effects be- 
 longing to the defendant, the court may order him to pay the 
 amount so due by him, and to deliver such effects to such person 
 as it may appoint as receiver ; or the garnishee may, as we have 
 already seen, give bond, and retain the money or effects. 
 
 If the garnishee fail to appear, he may be brought in by attach- 
 ment, or decree may be rendered against him on proof of indebt- 
 edness or the possession of effects of the defendant. 
 
 ' Withers v. Fuller et als, 30 Grat. 547. 
 
 ' Joseph V. Pyle, 2 W. Va. 449. 
 
 * James Elver & Kanawha Co. v. Llttlejohns, 18 Grat. 74; O'Brien v. Stephens, 
 11 Grat. 610; Eastman v. Wadleigh, 65 Maine, 251; 20 Am. E. 695; Starbuck v. 
 Murray, 5 Wend. 148; 21 Am. Dec. 172. 
 
 'Ibid.; Eobinson's Practice, Vol. 6, p. 434; Fisher & Bro. v. March, 26 Grat. 
 765; Bowler v. Huston, 30 Grat. 266; Cooper v. Reynolds, 10 Wal. 308; Maxwell 
 V. Stewart, 22 Wal. 77. 
 
 ' Noble V. The Thompson Oil Co., 79 Penn. St. 354; 21 Am. E. 66. 
 
§ 183 THE DECREE. 649 
 
 In neither case, however, as we have seen, can there be a decree 
 against the garnishee in the plaintiff's favor, until the plaintiff 
 has established his debt ; ^ and the debtor himself may claim the 
 benefit of the homestead exemption in a proper case, out of the 
 debt due from or effects in the hands of the garnishee.^ 
 
 The garnishee is chargeable with only so much money as he may 
 owe the defendant debtor, and it is error to decree more than that 
 amount.^ 
 
 He may deny his indebtedness, and may make any defence 
 against the attaching plaintiff that he might have made against the 
 defendant/ If there be any equitable defence of which, after 
 judgment at law in an action brought by the absent defendant 
 against the home defendant, the latter might avail himself in equity, 
 he may also take advantage of it in the attachment proceeding.' 
 His legal rights and equities are respected, and if he have a lien 
 upon the attached property as innkeeper, artizan or otherwise, he 
 is entitled to have it satisfied prior to that of the attachment, and 
 the attaching creditor must discharge it before he can subject the 
 attached effects to his claim. ^ 
 
 If, when the garnishee appears, the claim of the defendant is 
 not proven by his answer or by satisfactory evidence, a decree can- 
 not be entered against him ; but if he holds effects belonging to 
 the defendant, under claim of title not effectual against creditors, 
 or without any title at all, he will be held personally liable only 
 
 * Withers v. Fuller et cds, 30 Grat. 547. 
 'Code, 2 2976. 
 
 » Watt's Ex'ors v. Eobertson, 4 H. & M. 442. 
 
 * Daniel on Attachments, ? 242. 
 
 ' Glassell v. Thomas, 3 Leigh, 113; Eoss v. McKinney, 2 Eawle, 227. Decree 
 may he rendered against a garnishee for indebtedness admitted to be due at a future 
 date, but execution will be stayed until the maturity of the debt. Cottrell v. Van- 
 num, 5 Ala. 229; 39 Am. Dec. 323. Eight of garnishee to enquire into jurisdic- 
 tion of court rendering judgment against defendant in attachment. Pierce v. Carle- 
 ton, 12 111. 358; 54 Am. Dec. 405; note, 408. As to effect of a judgment against 
 a garnishee, see Id. 
 
 'Daniel on Attachments, § 243; Williamson v. Gayle, 7 Grat. 154; Matthews'g 
 Digest, Vol. 1, p. 120. 
 
650 ATTACHMENTS IN CHANCEEY. § 183 
 
 for SO much as he may have consumed or appropriated to his own 
 use so as not to be forthcoming, or for the profits he may have re- 
 ceived. For that amount decree may be entered against him per- 
 sonally in the first place, holding the property ultimately bound, 
 if he fail to pay. For the balance of the claim the court may 
 proceed at once to subject the property itself.' 
 
 The possession of the garnishee must be actual, not construc- 
 tive, of the goods and effects sought to be charged ; and where, at 
 the time of the service of the plaintiff's writ, the property in 
 question was at sea or in some foreign port, it was held to be be- 
 yond the control, and not in the possession of the respondent.^ 
 
 If the garnishee asserts title to himself in property which was 
 known to belong recently to the attached defendant, he will be re- 
 quired to prove it. This was done where the garnishee claimed 
 that a tract of land which had belonged to the absent defendant 
 had been purchased by himself and paid for ; but although he 
 claimed to hold the receipt of the defendant for the purchase 
 money, he did not pretend to have paid the amount in money ; 
 and as the accounts which he endeavored to established were de-' 
 clared, by the commissioner to whom they were referred, to be too 
 indefinite to be the foundation of a statement of accounts between 
 the parties, the court held the land liable to the attachment.' 
 
 The stock of an incorporated company is a proper subject for a 
 decree of sale in an attachment and garnishee proceeding ; but it 
 is error for the court to render a decree against the garnishee com- 
 pany for the value of the stock, unless it appears that the lien of 
 the attachment creditor on the stock was lost by the act of the 
 corporation.'' 
 
 The garnishee may plead a decree against him under the attaeh- 
 
 • Daniel on Attachments, ? 244; George v. Blue, 3 Call. 394; Gibson v. White, 
 3 Munf, 94; Piatt v. Howland, 10 Leigh, 507. 
 
 ^ Daniel on Attachments, ^ 245; Andrews v. Ludlow, 5 Pick. 28. 
 
 ' Daniel on Attachments, § 246; Kelly v. Linkenhoger, 8 Grat. 104. 
 
 * Chesapeake & Ohio R. R. Co. v. Paine & Co. , 29 Grat. 502. 
 
§ 183 THE DECREE. 651 
 
 ment proceeding as a defence to a demand by the defendant ; ' but 
 if the garnishee, with notice of an assignment of the debt due by 
 him to the defendant, fails to plead it to the summons, and per- 
 mits a decree to be rendered against him in favor of the attaching 
 creditor, he cannot be relieved from liability for either debt, but 
 will have to pay both.^ 
 
 ' Virginia F. & M. Ins. Co. v. New York C. M. Co., 95 Va. 515. 
 
 ^Haseltine & Walton o. Brickey et als, 16 Grat. 116; Richmond Enquirer Co. 
 V. Bobinson el als, 24 Grat. 548. 
 
 The garnishor who receives payment is protected against the demands of the 
 holder by assignment when such holder fails during the pendency of the proceed- 
 ings to give notice or to interpose his claim. Herndon v. Swearenger, 1 Porter, 
 192; 26 Am. Bee. 359. It has also been held that where a debt is evidenced by a 
 note payable to order, the plaintiff, before being allowed a recovery against the 
 garnishee, must show the note to be in the possession of the defendant. Scott v. 
 Hill, 22 Am. Dec. 462. A garnishee who satisfies a judgment, after notice of the 
 transfer of the note, does so in his oivn wrong, and though execution may have been 
 awarded against him, such satisfaction will constitute no defence to the claim of 
 the assignee. Oldham v. Ledbetter, 1 Howard, 43; 26 Am. Dec. 690; note, 694. 
 
 By one line of authorities it is held that the court which first acquires jurisdic- 
 tion over the debt has the right to maintain it to the end of the Jitigation and to 
 enforce or subject the debt, irrespective of the proceedings in the other court; and 
 that. the court which last acquires jurisdiction as to the debt, whether it be by the 
 action of the creditor to recover his debt or under a garnishment by his creditor, 
 must dismiss the action or garnishment when the pendency of the prior action or 
 garnishment is duly brought to its notice. See Shrewsbury v. Tufts, 41 W. Va. 
 212, and other cases cited by Riely, J., in Va. P. & M. Ins. Co. v. New York 
 Carousal Mfg. Co., 95 Va. 515; 28 S. E.,E. 889. But another line of authorities 
 holds that whether the action by the creditor to recover his debt on the garnish- 
 ment be first commenced, the court in which the action by the creditor is pending 
 should, upon due notice of the garnishment, either suspend all proceedings in the 
 action to await the determination of the garnishment, or, which is deemed better, 
 proceed to judgment on the debt with a stay of execution on the judgment until 
 the garnishment is determined, which stay can be removed or made perpetual in 
 whole or in part as the exigency of the case may require. By this course the 
 rights of the attaching creditors would not be injuriously affected, and the gar- 
 nishee would at the same time be effectually protected against a double liability. 
 See the cases cited on p. 518, 95 Va. The court of appeals of Virginia, without 
 deciding between these conflicting views, in the case before it, held that when a 
 debtor was sued in one State by his creditor, and later was garnisheed in another 
 State, and the creditor obtained a judgment in the one State, which the debtor 
 wag compelled to satisfy after issuance of execution thereon, and payment was 
 pleaded as a bar to any further proceedings in the garnishment suit, the suit should 
 have been dismissed. Va. F. & M. Ins. Co. v. New York Carousal Mfg. Co. , 95 
 Va. 515; 28 S. E. R. 888. 
 
652 ATTACHMENTS IN CHANCEEY. § 184 
 
 The Rigid to Interplead. 
 
 § 1 84. At any time before the property attached is sold, or the 
 proceeds of sale paid to the plaintiff under the decree, any person 
 may file his petition disputing the validity of the plaintiff's attach- 
 ment thereon, or stating a claim thereto, or an interest in, or lien 
 on the same under any other attachment or otherwise, and its 
 nature ; and upon giving security for costs, the c6urt, without any 
 other pleading, must empanel a jury to enquire into such claims ; 
 and if it be found that the petitioner has title to,^ or a lien, or any 
 interest in such property, or its proceeds, the court shall make such 
 order as is necessary to protect his rights, and shall award the costs 
 as jn its discretion it thinks right.^ 
 
 The statute of West Virginia' permits " any person interested " 
 to file his petition, while the language of the Virginia act is, that 
 " any person " may file, etc. Both mean the same thing, however, 
 for in that part of the statute providing for the relief to be given 
 upon the petition, it is afforded to one who establishes title to, or 
 a lien on, or an interest in the attached property, and a petition 
 which fails to set out the interest of the party filing it, is de- 
 murrable.* 
 
 The character of the interest which the petitioner may have is 
 immaterial, so that it is vested and capable of being asserted, and 
 there is no limit as to the amount. The statute has, however, 
 been held not to be applicable to attachments for rent.^ A stranger 
 
 ' The intervener must show his title and it is enough for the attaching condition 
 to disprove that in order to defeat him. Slocourt v. Breedlore, 8 Lousiana, 143; 
 28 Am. Dec. 135. The attachment will be good against a deed of trust executed 
 and recorded in a foreign State, but not recorded in the State where the attach- 
 ment was sued out. Ballard v. Great West. M. & M. Co., 39 W. Va. 401. The 
 contrary was held as to choses in action in Virginia, iri the case of Gregg v. Sloan, 
 76 Va. 497. See the general subject discussed and the cases cited in 2 Barton's 
 Law Pr., p. 958. Cole v. Cunningham, 133 U. S. R. 107, 129, and Barnett v. 
 Kinney, 147 U. S. E. 480, et seg. 
 
 ' Code, § 2984. = Code W. Va., Ch. 106, § 23. 
 
 * Smith V. Hunt et ah, 2 Eob. R. 216 (old ed., p. 206). 
 
 'Hallamti. Jones, Gilm. 142; Daniel on Attachments, ? 196. 
 
§ 185 THE EIGHT TO EEHEAE. 653 
 
 whose property is seized may interplead, or he may resort to an 
 action of trespass against the sheriff who made the levy, and all 
 persons who aided in making or directing it to be made ; ' and the 
 owner of property illegally seized and taken under an attachment 
 against another, may move the court to award him the proceeds 
 of sale, and he does not thereby lose his right of action on the 
 sheriff's official bond.^ 
 
 The attachment first served on the same property, or on the 
 person having such property in his possession, has priority of lien' 
 between attaching creditors, and also against other creditors and a 
 purchaser without notice, if properly docketed ; * and the second 
 attaching creditor may move to quash the first attachment, if he 
 has filed his petition and proceeded under the statute.'* 
 
 The right of the claim asserted by the petition is required by 
 the statute, if either party demand it, to be tried by a jury em- 
 panelled for the purpose, and it is error for the court to pass upon 
 the claim without the intervention of a jury," if either party de- 
 mands one. 
 
 The Right to Rehear. 
 
 § ] 85. If the non-resident debtor, or his personal representa- 
 tive or heir, has not been served with a copy of the attachment or 
 
 ' Daniel on Attachments, ? 143. 
 
 ' JUd., ? 144; Sangster v. Commonwealth, 17 Grat. 134. 
 
 '2 Barton's Law Pr., notes and cases cited. The statute of West Virginia 
 (Code, Ch. 106, ? 24) has this provision: "The attachment first sued on the same 
 property, or on the person having such property in his possession, shall have pri- 
 ority of lien and the oflBcer making the levy shall note on the order of attachment 
 the day and hour at which the levy is made; provided, that wherp two or more 
 attachments are delivered to the same oificer at different times to be served, he 
 shall serve them in the order in which he receives them; and when they are de- 
 livered at the same time, they shall be served at the same time, and be satisfied pro 
 rata out of the proceeds of the attached property." 
 
 *Code, § 3566; Cammack v. Soran et ah, 30 Grat. 292. 
 
 ' Daniel on Attachments, ? 180; Luddington v. Hull, 4 W. Va. 130; McCluney 
 & Co. 1). Jackson, 6 Grat. 96, was decided under the former statute. 
 
 ' Anderson v. Johnson et ah, 32 Grat. 558. As to assignments asserted against 
 the lien of an attachment, see Post, I 188. 
 
654 ATTACHMENTS IN CHANCERY. § 185 
 
 with process in the suit in the State ' wherein it issued more than 
 sixty days before the date of the decree, or has not appeared and 
 made defence to it, he may, if he return to and appear openly in 
 the State, petition to have the proceedings reheard within one year 
 after a copy of the decree is served on him at the instance of the 
 plaintiif, or within five years from the date of the decree, if he be 
 not so served. 
 
 On giving security for costs, he may make such defence to the 
 decree as he might have made before it was recorded, except that 
 the title of any bmia fide purchaser t« any property, real or per- 
 sonal, sold under the attachment, shall not be brought in question 
 or impeached. 
 
 On such rehearing the court may order the plaintiff in the 
 original suit to restore any money which is the proceeds of the 
 sale of real or personal estate paid to him under the decree, to the 
 defendant, or to his heir or representative, as the case may be, and 
 may enter a decree therefor against him, or it may confirm the 
 former decree ; and in either case it will adjudge the costs to the 
 prevailing party.^ 
 
 The limitation of five years ceases to run when the petition is 
 presented, and not merely from the time leave is obtained to file 
 it;^ but it stands confirmed after five years only in respect of 
 such estate or effects of the debtor as are subject to the jurisdic- 
 tion of the courts of the Commonwealth ; and it does not apply 
 to protect parties in the enjoyment of rights under a decree 
 fraudulently obtained.^ 
 
 The statute having prescribed the mode by which a rehearing 
 
 ' Service out of the suit and out of the State has no more effect than an order of 
 publication posted and published. Anderson v. Johnson el als, 32 Grat. 558; Smith 
 & Wimsatt r. Chilton, 77 Va. 535. 
 
 ' Code, S§ 2986, 2987. The statute of West Virginia contains substantially the 
 same provisions. Code W. Va., Ch. 106, J 25. 
 
 'Littlejohn v. James R. & Kan. Co., IS Grat. 53. 
 
 « Daniel on Attachments, § 215; Koote v. Tompkins, 3 Grat. 98; Evans v. Spur- 
 gin el als, 11 Grat. 615; Underwood v. McVeigh, 23 Grat. 409. 
 
§ 185 THE EIGHT TO EEHEAE. 655 
 
 may be had, relief must be sought by that mode and no other ; ^ 
 but the court will not set aside the decree as soon a;s defendant's 
 answer is filed, for after issue joined both parties will be given an 
 opportunity to examine witnesses ; the cause will be matured for 
 a rehearing, and upon the rehearing such decree will be made as 
 may be just and right.^ The party desiring a rehearing must 
 first give security for costs. No mode of doing this is prescribed 
 by the statute, but by analogy to the same requirements in an 
 ordinary suit, and to escape the operation of the statute of frauds, 
 the undertaking of the security must be in writing.' 
 
 In a foreign attachment suit there were two joint absent debtors. 
 One of them appeared and filed his answer, and appealed from the 
 decree rendered. This brought the whole case in review, and the 
 court of appeals held that as the defendant who appeared suc- 
 ceeded, in the opinion of the court, in proving a defence which was 
 in no respect personal, and established the satisfaction and dis- 
 charge of the joint obligation on which the suit was founded, the 
 appeal of the 'defendant who appeared brought under review the 
 propriety of the whole decree, and devolved upon the court the 
 duty of correcting and reversing it in favor of both defendants.* 
 
 In a foreign attachment against an absent debtor and a home 
 defendant as garnishee, where decree is rendered against the debtor, 
 and also against the garnishee for a debt due the absent debtor, the 
 appeal of the garnishee was held not to contest the justice of the 
 decree as to the absentee, but only so much of it as affected him- 
 self.' Under the present statute '^ either defendant, or any gar- 
 
 > Piatt V. Howland, 10 Leigh, 507; Barbee v. Pannill, 6 Grat. 442; Daniel on 
 Attachments, I 218. But the statutory provision for rehearing a judgment by de- 
 fault or a decree on bill taken for confessed (Code 1873, Ch. 177, ^ 5; now Code, 
 J 3451) was held to be merely cumulative of the ordinary remedy in chancery by 
 bill for rehearing or review. Kendrick et als v. Whitney et als, 28 Grat. 652. 
 
 ' Daniel on Attachments, § 218; Piatt v. Howland, 10 Leigh, 507. 
 
 »So provided by statute in West Virginia. Code W. Va., Ch. 138, J 2. 
 
 •Daniel on Attachments, ? 216; Lenows v. Lenow, 8 Grat. 349. 
 
 ' Daniel on Attachments, § 219; Heffemans v. Grymes, 2 Leigh, 512. 
 
 « Code, ? 2980. 
 
656 ATTACHMENTS IN CHANCERY. § 186 
 
 nishee, may make defence to the attachment; and if a decree 
 against 'the debtor would compel the garnishee to pay money which 
 he would not otherwise have to pay, it seems fair to conclude that 
 he may contest the validity of the claim set up in both the lower 
 and the appellate courts. 
 
 The Defence to the Attachment. 
 
 § 186. We have already seen that a third person claiming a 
 right to or interest in the attached property may file his petition, 
 and dispute the validity of the attachment ; and it is also pro- 
 vided by statute,' that either of the defendants in any such attach- 
 ment, or any garnishee, or any party to any forthcoming bond, or 
 replevy bond given under the provisions of the Code, or the officer 
 who may be liable to the plaintiff by reason of such bond being 
 adjudged bad, may make defence to the attachment.^ The court 
 itself may dismiss an attachment ex officio, if there is any intrinsic 
 error apparent in the proceedings, although no plea be filed or 
 appearance entered by the defendant ; * but the duty is not im- 
 posed on it ex officio to enquire into the regularity of service or 
 defects not apparent on its face.* 
 
 In order to defend the attachment it is not necessary for the de- 
 fendant to make a personal appearance ; ° and an appearance in a 
 motion to quash is not an appearance to the action." On such a 
 motion the burden is on the plaintiff to show that the attachment 
 was sued out on sufficient cause, and he may therefore be required 
 to introduce his evidence first.' 
 
 The judge of the circuit court, to which any attachment may be 
 
 > Code, § 2980; Code W. Va., Ch. 106, § 18. 
 
 'To which the statute adds: "But the attachment shall not thereby be dis- 
 charged, or the property levied on released." Tiemans v. Schley, 2 Leigh, 25; 
 Wilson V. Wilson's Adm'r, 1 H. & M. 15; Daniel on Attachments, I 178. 
 
 'Mantz V. Hendley, 2 H. & M. 312; Minor's Institutes, Vol. 4, Pt. 1, p. 532. 
 
 * Pulliam V. Aler, 15 Grat. 54. 
 
 ' McCluney & Co. v. Jackson, 6 Grat. 96. 
 
 « Pulliam V. Aler, 15 Grat. 54. 
 
 ' Wright D. Kambo, 21 Grat. 162; Sublett, &c. v. Wood, 76 Va. 318. ♦ 
 
§ 186 THE DEFENCE TO THE ATTACHMENT. 657 
 
 made returnable (the corporation courts having the same jurisdic- 
 tion over matters in their courts'), or any other circuit judge, may 
 in vacation, upon ten days' notice to the attaching creditor, hear 
 testimony upon the question ; and if of opinion that the attach- 
 ment was sued out without sufficient cause, may quash or dismiss 
 it.^ If, upon contesting the attachment, the court is of opinion 
 that it was issued upon false suggestion, or without sufficient cause, 
 the attachment must be abated ; or when it is projDerly sued out, 
 and the case is heard upon its merits, if the claim of the plaintiff 
 is not established, final judgment shall be given for the defendant ; 
 and in either case he shall recover his costs, and there shall be an 
 order for the restoration to him of the attached effects.' 
 
 What is a proper suggestion, or sufficient cause upon which to 
 sue out an attachment, has been considered in the previous sections 
 of this chapter ; but it is proper to add that it must appear to the 
 court that there was something more than the mere statement of 
 the plaintiff or his agent in his affidavit ; in other words, that there 
 was reasonable ground or probable cause to believe that the de- 
 fendant was doing the acts which would authorize the attachment, 
 or was in law and in fact a non-resident of the State ; and not 
 that the facts, as they appeared to the flaintiff, afforded him reasona- 
 ble ground for such belief.* In a court of three judges, Judge 
 Moncure dissented from this conclusion, and thought "that the 
 defendant could not traverse the facts, but only the ' probable ' or 
 'sufficient' cause as measured by the bona fides of the plaintiff's 
 
 I Chahoon'a Case, 21 Grat. 822. 
 
 * Code, ? 2965. 
 
 ' Code, J 2981. By the West Virginia statute (Code, Ch. 106, I 19) it is pro- 
 vided that " if the defendant desires to controvert the existence of the grounds for 
 the attachment stated in the affidavit, he may file a plea in abatement denying the 
 existence of such grounds, and the issue on such plea shall be tried by a jury, un- 
 less the same be waived by the parties. The affirmative of such issue shall be with 
 the plaintiff; and if he fail to prove to the satisfaction of the jury the existence of 
 the grounds denied by the defendant, the verdict shall be for the defendant, and 
 judgment shall be entered that the attachment be abated. 
 
 •Claflin V. Steenbocls & Co., 18 Grat. 842; Minor's Institutes, Vol. 4, Pt. 1, p. 
 482. To the same effect, see Sublett & Cary v. Wood, 76 Va. 318. 
 
 42 
 
658 ATTACHMENTS IN CHANCEEY. § 186 
 
 belief, and the force of the circumstances to warrant it ; " but the 
 court held that the true enquiry was " whether upon all the evi- 
 dence there was reasonable ground or probable cause to believe 
 that the defendant was doing the acts which would authorize the 
 attachment, and not whether the facts, as they appeared to the 
 affiant, though only a small part perhaps of the facts in the case, 
 affi)rded him a reasonable ground for such belief." 
 
 The statute of limitations, too, mil bar the claim of the attach- 
 ing creditor when the attachment is either at law or in equity, and 
 it may be pleaded in either case.^ 
 
 When issue is joined on a motion,^ the statute ^ provides that 
 when either jmrty desires it, or when in the opinion of the court 
 it is proper, a jury will be empanelled, unless the case be one in 
 which the recovery is limited to an amount not greater than twenty 
 dollars, exclusive of interest. If neither party expresses a desire 
 for a jury to be empanelled, it is left to the discretion of the court 
 to have one or not, as it may see proper. In the case of Claflin 
 V. Steenbock, 18 Grat. 846, on a motion to abate, the plaintiff de- 
 clined to express a wish for a jury, and the defendant expressed 
 the wish that the jury might be dispensed with, and the court of 
 appeals held that the court below properly heard and decided the 
 case without a jury.* 
 
 In West Virginia, as we have noted, the statute ' provides that 
 the issue on a plea controverting the facts upon which the attach- 
 ment was sued out, shall be tried by a jury, unless the same be 
 waived by the parties ; and it has been held that if the defects are 
 apparent on the face of the papers, the motion to quash should be 
 addressed to the court, but if the facts of the affidavit are contro- 
 verted, the court should direct a jury trial. ^ 
 
 'Daniel on Attachments, i 194, citing Wilkinson v. Holloway, 7 Leigh, 277; 
 Markle's Adm'rtt. Burche's Adm'r, 11 Grat. 26, Wilson v. Koontz, 7 Cranch, 202. 
 ^ On any motion. 
 ' Code, i 3213. 
 
 ' Daniel on Attachments, ^ 189. 
 ^ Code W. Va., Ch. 106, I 19. "Capehart v. Dowery, 10 W. Va. 135. 
 
§ 186 THE DEFENCE TO THE ATTACHMENT. 659 
 
 But as the statute of Virginia ' declares that the proceedings in 
 an attachment in equity shall be the same as in other suits in 
 chancery, what we have said is not intended to convey the idea 
 that there can or must be trials by jury except under circum- 
 stances which would justify an issue out of chancery in any other 
 cause, or except where a jury is expressly required by statute, as 
 is done in cases of interpleader. As we have already seen, the 
 garnishee may contest the validity of the attachment, or by his 
 answer set up such defence as he may have to any claim asserted 
 against him on behalf of the attachment debtor, and may have it 
 tried and determined in the cause. He may offset his indebted- 
 ness with indebtedness of the creditor acquired before service of 
 the summons,^ and against the claim alleged to be due by him he 
 may plead and prove failure of consideration, usury, limitations, 
 and payment.^ 
 
 If after the garnishee has been summoned in the attachment 
 he should be sued by the defendant before judgment has been 
 rendered, it has been held that the garnishee may plead the at- 
 tachment in abatement ; and while this view has been largely ap- 
 proved by decided cases and the text-writers, it has also been held 
 that the j)endency of the attachment is only good ground ^for a 
 continuance while the suit is pending.^ 
 
 1 Code, ? 2964. 
 
 ' Bank of Virginia u. Gettinger, 4 W. Va. 305. 
 
 ' Daniel on Attachments, § 242. 
 
 * Brown v. Somerville, 8 Md. 458; Hinkley & Mayer on Attachments; p. 148; 
 Brook V. Smith, 1 Salkeld, 280; Kent, C. J., in Embree v. Hanna, 5 Johns. 101; 
 Haselton v. Monroe, 18 N. H. 598; Fitzgerald v. Caldwell, 1 Yeates, 274; Irvine 
 V. Lumberman's Bank, 2 Watts & S. 190; Cheongwo v. Jones, 3 Wash. C. C. 359; 
 Wallace !). McConnell, 13 Pet. 136; Mattingly jj. Boyd, 20 How. 128; Drake on 
 Attachments, U 700, 701; Winthrop v. Carlton, 8 Mass. 456; Morton v. Webb, 7 
 Vermont, 123. A garnishee may plead in abatement a pending attachment.of the 
 debt upon which he is sued, but this does not bar the prosecution of the suit, but 
 only suspends it. Crawford v. Clute, 7 Ala. 157; 41 Am. Dec. 92; note, 95. Such 
 a plea must aver the jurisdiction of the court in which the attachment proceeding 
 is pending; that the affidavit was properly made; and that the entire debt, or the 
 exact proportion thereof, has been attached. Id. A garnishee may perpetually 
 
660 ATTACHMENTS IN CHANCERY. § 186 
 
 " When judgment has been rendered in the attachment against 
 the garnishee, and execution has been executed, he may plead it in 
 bar of any action brought against him by the defendant in the 
 attachment." ' 
 
 As we have already seen, if the garnishee with notice of an as- 
 signment of the debt due by him to an attachment debtor, fails to 
 plead it to the garnishee summons, and permits a judgment or de- 
 cree to be rendered against him, he will be compelled to pay the 
 debt both to the attaching creditor and to the assignee ; ' but this 
 is not true where the garnishee has no notice of the assignment. 
 
 In the case of Noble v. Thompson Oil Co.,' a judgment in the 
 State of Pennsylvania was assigned in good faith to a resident of 
 that State ; and after the assignment, but before the judgment 
 debtor had notice of it, he was attached in New York, where he 
 resided, as a garnishee of the assignor, by a creditor of the assignor, 
 and adjudged by the New York court liable as such garnishee, not- 
 withstanding the assignment, and he paid to the attaching creditor 
 the amount of his indebtedness on the judgment. This was held 
 to be no defence against the claim of the assignee. 
 
 In this case it appears that, while the garnishee had no notice 
 of the assignment when the attachment was sued out, yet he did 
 know of it in time to have used it as a defence against the claim 
 of the attaching creditor to have a judgment rendered against him. 
 
 It has also been held that the maker of a negotiable note, who, 
 after maturity, paid it to an endorsee for value, who took it before 
 maturity in the usual course of business, and "without knowledge 
 of an attachment previously sued out, was not liable under the 
 
 enjoin a plaintiff's judgment against him, upon the occurrence, subsequent to his 
 examination, of anything which would furnish a legal defence to an action against 
 him by the defendant. Cottrell v. Varnum, 5 Ala. 229; 41 Am. Dec. 323. 
 
 ' Daniel on Attachments, I 223; Nathan v. Giles, 5 Taunton, 558; Eobinaon's 
 Pr., Vol. 5, p. 837. 
 
 ^ Haseltine v. Brickey et ah, 16 Grat. 116; Richmond Enq. Co. v. Eobinson et als 
 24 Grat. 548. See also Ante, p. 651, note 2. 
 '79 Penn. St. 364; 21 Am. E. 66. 
 
§ 187 IN PARTNERSHIP CASES. 661 
 
 attachment, and that his payment to the endorsee was a full dis- 
 charge of the note.' 
 
 In Partnership Cases. 
 
 § 187. The affidavit requisite for an attachment, when sued out 
 by a firm, may be made by one partner on behalf of the firm ; 
 but it must be expressed in the affidavit that it is made for the 
 partnership concern.^ 
 
 One partner may sue out an attachment against his co-partner 
 in any matter for which he could maintain a suit; that is, for 
 matters not connected with the co-partnership, and for any balance 
 agreed upon, and a promise made to pay it.* 
 
 A third person may sue out an attachment against a firm when 
 the partnership, or one of the pai'tners, is not a resident of the 
 State ; * but where the suit is against an individual member of the 
 firm, it has been held that one indebted to the partnership, of 
 which he is a member, is not liable as garnishee ; ^ and a judg- 
 ment in another State against all the members of a firm, after the 
 dissolution of the partnership, does not personally bind a member 
 
 ' Day V. Zimmerman, 68 Penn. St. 72; 8 Am. E. 157. Negotiable notes can be 
 seized under attachment only by taking actual possession of them, or by attaching 
 them in the hands of a person who holds them for the use of t^he debtor. The 
 mere service of copies of the petition and attachment upon the person sought to be 
 charged as garnishee would not have the effect of attaching the debt. Ennis v. 
 Comm. and Railroad Bank, 3 Louisiana, 186; 48 Am. Dec. 447; note, 449. See 
 also 2 Barton's Law Pr., p. 956, note. 
 
 ^Kyles & Co. v. ConneUy, 3 Leigh, 779. 
 
 ' Daniel on Attachments, ? 266. And it is thought that the attachment would 
 lie by one partner against a co-partner after dissolution, to recover a general bal- 
 ance claimed upon an unsettled partnership account. Ibid. , § 267. 
 
 * Wmiamson v. Bowie et al, 6 Munf. 176. But the non-residence of one of the 
 partners will not sustain an attachment against social assets to the prejudice of 
 social creditors, nor will it give priority over other social creditors except as to 
 the individual interest of the non-resident partners. Andrews v. Mmidy, 36 W. 
 Va. 22; Goodman v. Henry, 42 W. Va. 527; 26 S. E. B. 528. See 2 Barton's 
 Law Pr. 1002. 
 
 ^ Sheedy v. Second National Bank, 62 Mo. 17; 21 Am. E. 407. 
 
662 ATTACHMENTS IN CHANCERY. § 187 
 
 not served with process and not appearing, although the others 
 were served or appeared by counsel.^ 
 
 A suit in equity, however, may be maintained against the part- 
 nership where one of the partners is not a resident of the State, 
 although the remedy would have been necessarily at law if both 
 had been residents ; ^ and under the provisions of the statute,^ 
 when such suit has been brought, the plaintiff may content himself 
 with the ordinary process of law to enforce the decree, or may sue 
 out an attachment at his discretion.'' 
 
 Where the security, which is the subject of the suit in equity, is 
 signed by a resident partner in his individual name, it is compe- 
 tent for the creditor to prove that the debt was in reality made by 
 the firm, one of which is a non-resident of the State, and he is 
 thereupon entitled to an attachment against the firm.° 
 
 A private creditor of one member of a firm may attach the in- 
 terest of the debtor partner in the partnership property ; but since 
 his attachment may be avoided by the insufficiency of the joint 
 assets to pay the joint debts, under the writ the officer cannot at- 
 tach any definite portion of the goods of the partnership, and take 
 them into his possession, nor can he, holding an execution, take a 
 portion of the goods and sell them to satisfy the attachment." The 
 levy of an attachment in such cases is like the levy of an execution 
 
 ' Bowler v. Huston, 30 Grat. 266. 
 
 ^ Daniel on Attachments, 2 268. 
 
 ^ Code, i 2964. 
 
 * O'Brien v. Stephens, 11 Grat. 610. 
 
 ^Daniel on Attachments, § 268; O'Brien v. Stephens, 11 Grat. 610. 
 
 'Bowdeni). Schatzell, 1 Bailey's Eq. 360; 23 Am. Dec. 170; Parsons on Part- 
 nership, * 352, 353. Exactly the contrary is held in Maine. Fogg v. Lawry, 68 
 Me. 78; 28 Am. E. 19. But see Hershfield v. Claflin, 25 Kansas, 166; 37 Am. K. 
 237. The interest of a partner in the social assets may be sold for his- separate 
 debt (Aldrich v. Wallace, 8 Dana, 287; 33 Am. Dec. 495), and as the partner- 
 ship creditors, in equity, have a prior lien upon the partnership funds, equity will 
 compel them to exhaust that remedy before resorting to the separate estate. Bard- 
 well V. Perry, 19 Vt. 292; 47 Am. Deo. 687; note, 694. The separate creditor 
 cannot, in any event, take more than the partner who is his debtor, is entitled to. 
 Haddock v. Skinker, 93 Va. 485. 
 
§ 187 IN PARTNERSHIP CASES. 663 
 
 upon the interest of one of the partners in the firm assets ; it must 
 be by a seizure of the whole goods (if a moiety of the whole be 
 requisite to pay the debt); for if the officer take but a moiety and 
 sell that, the other partner will have a right to a moiety of that 
 moiety ; but if he take the whole, or of whatever quantity he does 
 take, he must sell a moiety thereof undivided, and the purchaser 
 will be tenant in common (subject to the rules of partnership ') 
 with the other partner,^ and the interest which the purchaser ac- 
 quires at the sale is what remains after the payment of the part- 
 nership debts, and the share of the partner whose interest is 
 attached after a final adjustment of the partnership concern, and a 
 right to call for and have such an adjustment made.' 
 
 It follows, from what we have said, that an attachment against 
 the interest of a partner for an individual debt must yield to a 
 subsequent attachment for a partnership debt ; * and even if there 
 be no attachment against the partnership eifects, the private debt 
 of the partner cannot be paid until the social debts are satisfied.^ 
 
 The levy upon the real estate of a firm is made as in the case of 
 an individual, except that the endorsement should indicate that it 
 is meant to attach the interest of the debtor in such estate. If 
 the real estate is bought with partnership funds, brought into the 
 business of the firm, and used for its purposes, it will be considered 
 
 ' Daniel on Attachments, ?? 271, 272. But he will not be a partner with them. 
 Parsons on Partnership, * 359. 
 
 ' Shaver v. White & Dougherty, 6 Munf. 110. 
 
 ' Daniel on Attachments, ? 277. 
 
 * Doner v. Stauffer, 1 Pen. & W. 197; 21 Am. Dec. 370; Daniel on Attachments, 
 S277. 
 
 ' It has also been held that a debt due an existing partnership whose affairs are 
 unsettled, is not subject to attachment at the suit of a creditor of one of the part- 
 ners. People's Bank v. Shryook, 48 Md. 427; 30 Am. B. 476; Allen v. Wells, 22 
 Pick. 450; 33 Am. Dec. 757. Held that for the private debt of a partner, part- 
 nership property cannot be seized under attachment or execution. Morrison v. 
 Blodgett, 8 N. H. 238; 29 Am. Dec. 653. But while this is not generally the rule, 
 yet it is universally held that such an attachment must yield to the prior claims of 
 the social creditors. Id.; 29 Am. Dec. 663, note; Payne v. Matthews, 6 Paige, 
 19; 29 Am. Dec. 7S8; note, 740. 
 
664 ATTACHMENTS IN CHANCERY. § 187 
 
 as partnership stock, in whose name soever the legal title may be, 
 unless there be distinct evidence of an agreement to hold it sep- 
 arately. The real estate of a partnership, so held, is governed by 
 the same principles as personalty in respect to the liability for a 
 partnership debt. Levy may be made upon the partner's interest 
 for his separate debt, but the purchaser takes it subject to a final 
 settlement of the partnership accounts.' 
 
 We have thus observed that partnership assets are liable first to 
 the payment of partnership debts ; but separate creditors have no 
 preference over the individual property of a member of the firm ; 
 and where a joint creditor has by his superior diligence secured a 
 Hen upon the individual effects, a court of equity will not interfere 
 to prevent his enforcing it upon the mere suggestion of the insol- 
 vency of the partnership, or the individual members composing 
 it ; and it is only when the creditors are compelled to resort to a 
 court of equity to obtain possession of the assets that the rule will 
 be adopted that confines the joint-creditor to the social assets until 
 the separate creditors are satisfied. And there are exceptions even 
 to this rule, one of them being " that the separate creditor is only 
 entitled to priority where there is partnership property, or a living 
 solvent partner. When there is neither one nor the other, the 
 joint-creditors are entitled to participate pari passu with the separ- 
 ate creditors in the separate estate. In such case all the creditors, 
 joint and several, stand upon common ground, without a preference 
 accorded to either. They are, however, mere equities, duly re- 
 spected and enforced in courts of chancery, in cases appropriate to 
 the jurisdiction of those courts. But when the partnership cred- 
 itor, by virtue of his judgment or execution, acquires a lien upon 
 the separate estate of a partner, he has obtained a legal advantage 
 of which he cannot be deprived by any one having only equal 
 
 * Daniel on Attachments, ? 278; Markham v. Merrett, 7 How. 437; 40 Am. 
 Dec. 76; Jarvis v. Brooks, 27 N. H. 37; 59 Am. Dec. 359; note, 363; Page ii. 
 Thomas, 40 Ohio, 38; 54 Am. E. 788; note, 792 to 800. 
 
§ 187 IN PAETNEESHIP CASES. 665 
 
 equity with himself. The equities being equal, the legal priority 
 must be respected by every court." ' 
 
 It follows, therefore, that whenever a joint creditor levies an 
 attachment against both partners, he thereby acquires a lien iipon 
 the joint and separate effects of both and each partner on which 
 the attachment is levied, and against the attachment of a separate 
 creditor subsequent to that of the joint-creditor the latter will have 
 the preference over both the joint and separate estates levied on.^ 
 
 When partners as such are declared bankrupts, their property is 
 administered under the bankrupt act, and every creditor, whether 
 social or individual, must prosecute his claim in the bankrupt 
 court ; and where a partnership is dissolved, and the individual 
 partners are declared bankrupts in different bankrupt courts in 
 different States, each with his own assignee, and in their schedules 
 make no mention of partnership debts due to them or by them, a 
 creditor of the partnership may proceed in a State court to subject 
 the partnership effects to the payment of the partnership debts. 
 In such case one creditor of a partnership cannot attach the part- 
 nership effects so as to obtain a preference over the other partner- 
 ship creditors. But his bill, though proceeding only for his own 
 debt, may be treated as for the benefit of all the partnership credit- 
 ors, and an account of the creditors' claims and of the partnership 
 effects may be taken, and the effects distributed among the credit- 
 ors who establish their debts.' 
 
 • Staples, J. , in Straus v. Kerngood et ah, 21 Grat. 588. See Wilden v. Keeler, 
 3 Paige Chy. E. 167, in which it is held that partnership estate must first be applied 
 to joint debts and separate estate to the individual debts. 23 Am. Dec. 789, note. 
 
 "Straus V. Kerngood et afe, 21 Grat. 584; Ashb/s Adm'r v. Porter el als, 26 
 Grat. 455; Allen v. Wells, 22 Pick. 450; 33 Am. Deo. 757; note, 762. Held that 
 "the property of a retiring partner, though the debts of the firm were assumed by 
 his co-partner, is liable for the debts of the firm, and a voluntary conveyance to 
 his wife will be set aside as fraudulent, though the grantor was justified in think- 
 ing that his former associate would pay the debts." Barhydt v. Perry, Sup. Court 
 of Iowa, reported in Va. Law Journal, 1882. 
 
 ' Lindsey v. Corkery & MUward et als, 29 Grat. 650. See also Parsons on Part- 
 nerships, * 474. A difference in respect to the operation of these rules is made 
 between a dormant and a known partner. Ibid., * 360. 
 
666 ATTACHMENTS IN CHANCERY. § 187 
 
 The fact of the levy of an attachment upon the interest of a 
 member of the firm should not of itself merely, affect the operation 
 in which the partnership is engaged. The interest remains under 
 and" subject to the atta,chment ; but the firm may go on dealing as 
 before, buying and selling and delivering goods, because the attach- 
 ment does not take effect upon any specific, goods, but on the in- 
 terest of the partner in the partnership concern ; and the opinion 
 is expressed that it woul'd be held to affect the defendant's interest 
 in new merchandise added to the stock in the course of dealing, 
 as much as in the old.^ This conclusion is, of course, subject 
 somewhat to the construction put upon the statute, as to whether 
 the attachment binds only property owned or debts due to the 
 defendant at the time the attachment was sued out, or includes 
 interests acquired since the date of the levy. But on the other 
 hand, as the interest in the partnership which is attached is the 
 thing which is sold, and not any spedjia goods belonging to the 
 firm, it seems fair to conclude, with the learned author cited in the 
 note, that the interest in the firm, increased by its dealings since 
 the attachment, would be liable to the payment of the debt for 
 which the attachment was sued out, just as much as would the wool 
 that grows on a sheep's back, between the date of the levy of the 
 attachment on it and a sale thereof under the attachment. 
 
 The difficulty of determining this point is, of course, increased 
 where the whole or any part of the property of the firm is sold 
 instead of a mere unascertained interest in the firm. 
 
 Where a partnership is summoned as a garnishee at law, the 
 best, if not the essential mode is, that a summons should be served 
 on each of the partners ; ^ but if it be in equity, the garnishee 
 (where there is one), being as much a necessary party to the suit 
 as any other party in interest, the rules of equity will prevail,' and 
 all the partners should be made parties to the suit. 
 
 ^ Parsons on Partnerships, * 358. 
 
 ^ Daniel on Attachments, ? 280. 
 
 ' Ihid. , Pulliam, &c. v. Aler, 1 5 Grat. 54. Service of process creates a lien which 
 
§ 188 THE LIEN OF THE ATTACHMENT. 667 
 
 The Lien of the Attachment. 
 
 § 188. The statute^ provides that the plaintiff shall have a lien 
 from the time of the levying of the attachment, or serving a copy 
 thereof, upon the personal property, choses in action, and other 
 securities of the defendant against whom the claim is, in the hands 
 of, or due from any garnishee on whom it is served, and on any 
 real estate mentioned in an endorsement on the attachment or sub- 
 poena, from the suing out of the same ; and the attachment first 
 served on the same property, or on the person having such prop- 
 erty in possession, has priority of lien.^ 
 
 The lien is not affected by the fact that the affidavit may not 
 have been made before service of the subpoena or attachment ; ^ 
 and as we have before noticed, it has been held that the endorse- 
 ment on the subpoena is not necessary to render an attachment 
 valid.* While the service on the garnishee creates a lien on all 
 the effects of the debtor in his hands, it operates upon them only ; 
 and if the defendant has other estate it is liable to other levies, 
 and is not affected by the attachment not levied on it.° 
 
 Two attachments against an absconding debtor were levied on 
 the same property at the suit of different creditors, and the first 
 levied was quashed by the court to which it was returned, but upon 
 appeal the judgment was reversed. Pending the appeal an order 
 
 cannot be affected by any arrangements between the defendant and the garnishee. 
 Cottrell V. Vamnm, 5 Ala. 229; 39 Am. Dec. 323. For a full discussion of the 
 nature of the attachment lien, see Franklin Bank v. Bachelder, 23 Maine, 60; 39 
 Am. Dec. 601; notes, p. 606 to 611. 
 
 'Code, ? 2971; Code W. Va., Ch. 106, § 9. 
 
 ^ 2 Barton's Law Pr., p. 980. "The officer serving the attachment shall make 
 return of the time and manner of service on each person designated as being in- 
 debted to, or having in his possession, the property of any such defendant; and 
 shall also return a list and description of the property taken (if any) under such 
 attachment, and likewise the date of the service or execution thereof on each per- 
 son and parcel of property." Code W. Va., Ch. 106, ? 7. 
 
 ° Daniel on Attachments, ? 150. 
 
 *Cirodeii. Buchanan, Adm'r, 22 Grat. 205. 
 
 ^ Farmers Bank v. Day, 6 Grat. 360. 
 
668 ATTACHMENTS IN CHANCERY. § 188 
 
 was made in the second attachment case for the sale of the prop. 
 erty, and it was sold and the proceeds paid over to the plaintiff in 
 the second attachment cause. The court of appeals' held that the 
 prior lien of the first attaching creditor could not be thus defeated, 
 and that he could maintain an action against the second attaching 
 creditor for the proceeds of the sale. . 
 
 An attachment illegally levied is null and void, and creates no lien, 
 and other, though subsequent attachments, levied on the same estate 
 will be entitled to satisfaction. As we have already seen, it is com- 
 petent also for a second attachment creditor who files his petition un- 
 der the statute to move to quash the first attachment on account of 
 its illegality, and he will thereby remove an obstacle in the way of 
 subjecting the attached property to the lien of his own attachment.^ 
 
 Where there are several attaching creditors, all of whose claims 
 or liens are attacked by some other creditor or claimant, instead of 
 moving to quash such attachment separately, it is competent to 
 him to file a bill in equity making all those creditors parties ; and 
 upon complying with the requirements of the statute, he may test 
 the validity of the attachments, and have them set aside if void. 
 
 In a conflict of liens by an attaching creditor with a judgment 
 upon real estate, or an execution upon personal property, it is 
 enough to enquire the relative dates of each alleged lien ; and if 
 all the proceedings are legal and valid, that which occurred first 
 will be the first lien ; but as against a purchaser for value of real 
 estate without notice of an attachment which has not been recorded, 
 the attachment is not a lien.^ 
 
 The priority of lien created by service of the subpoena or at- 
 tachment over that of a subsequent creditor, is not affected by the 
 
 ^ Caperton v. McCorkle & Adams, 5 Grat. 177. 
 
 ^ McCluney & Co. v. Jackson, 6 Grat. 96. 
 
 » Cammack v. Soran el al, 30 Grat. 292. As to the lien of a judgment, see Post, 
 i 276. It is held that the right of stoppage in transitu is not superseded by an at- 
 tachment while the goods are in transitu. Hanse v. Judson, 4 Dana, 7; 29 Am. 
 Dec. 377. For requirement as to recordation of memorandum of attachment, see 
 Code, I 3566; Ante, p. 219, and Post, 670. 
 
§ 188 THE LIEN OF THE ATTACHMENT. 669 
 
 fact that the latter comes in by operation of law, and not by his 
 own act. In the case of Erskine & Eichelberger v. Staley, 12 
 Leigh, 406, the creditors of an absent debtor sued out an attach- 
 ment in chancery against him and a home defendant having in his 
 possession specific goods of the absent debtor, as well as bonds, 
 notes, etc., to collect for him as agent, and the process was served 
 on the garnishee. Other creditors having instituted an action at 
 law against the debtor, sued out an attachment against his estate 
 to force his appearance, and this attachment, after the service of 
 the foreign attachment on the garnishee, was levied on the same 
 specific goods which were in the garnishee's hands at the time the 
 foreign attachment was served on him. Judgment was recovered 
 in the action at law, pending the attachment in chancery, and the 
 creditors were about to have a sale of the specific goods under an 
 order of the court of law. The creditors in the chancery attach- 
 ment obtained an injunction to inhibit the sale, and claimed a 
 prior lien on the goods by virtue of previous service of the attach- 
 ment on the garnishee. The court of appeals decided that upon 
 the construction of the statute : 
 
 First, The creditors in the foreign attachment by and from the 
 date of the service on the garnishee, acquired a lien on the effects 
 of the debtor in the garnishee's hands, of which neither the absent 
 debtor nor the garnishee, nor any third person, by any attachment 
 or other process of law subsequently levied, could deprive them. 
 
 Second, That they were entitled to priority of satisfaction out of 
 the attached effects ; and, 
 
 Third, That in an attachment in equity a subpoena against the 
 absent debtor and the garnishee, with a restraining order endorsed 
 by the clerk served on the garnishee, is, according to settled prac- 
 tice, as effectual to attach the effects of the absent debtor in the 
 garnishee's hands as a formal order of court to the same purpose 
 would be.' 
 
 'Daniel on Attachments, ? 153; Moore v. Holt, 10 Grat. 284. 
 
670 ATTACHMENTS IN CHANCERY. § 188 
 
 It is further provided by statute' that no attachment against 
 the estate of a non-resident shall bind or affect a purchaser of real 
 estate without actual notice thereof, unless and until a memoran- 
 dum setting forth the title of the case, the general object thereof, 
 the court in which it is pending, a description of the land, and the 
 name of the person whose estate is intended to be affected thereby, 
 shall be left with the clerk of the court of the county or corpora- 
 tion in which the land is situated, who shall forthwith record the 
 said memorandum in the deed-book, and index the same by the 
 name of the person aforesaid.^ 
 
 But conflicts not unfrequently arise between those claiming liens 
 by virtue of their attachments and purchasers or assignees of the 
 attached effects. In such cases, if the defendant has bona fide 
 parted with his interest in the attached effects before the writ is 
 served, as if a chose in action be equita,bly assigned, the assignee 
 has no attachable property in the chose, although the obligor had 
 no notice of the assignment.' 
 
 As we have before noticed,^ no particular form is required to 
 effect a valid assignment, and it need not be in Avriting.^ If it be 
 a chose in action,^ or tangible property of which possession has 
 been taken/ it need not be recorded. 
 
 This rule applies to trustees and receivers, as well to assign- 
 ments^ and transfers of property made without the State, and 
 which has since been brought here, as to transactions of the same 
 character occurring wholly within this State. 
 
 , In the case of Wales v. Alden, 22 Pick. 245, an inhabitant of 
 Boston being in New York, an assignment of goods and choses in 
 
 ' Code, 2 3566; Code W. Va., Ch. 139, ? 13. ^ See also Post, ? 324. 
 
 ' Daniel on Attachments, § 162; Wilson v. Davisson, 5 Munf. 178; Kobinson's 
 Practice, Vol. 5, p. 840. 
 
 'Nesmith v. Drum, 8 Watts & Sergeant, 9; 42 Am. Dec. 260; note, 261. 
 
 * Matthews' Digest, Vol. 1, p. 410; Howe, Knox & Co. v. Ould & Carrington, 
 28 Grat; 1; Anderson v. De Soer, 6 Grat. 363. 
 
 ' Kirkland, Chase & Co. v. Brune el ah, 31 Grat. 126. 
 
 ' Clarke v. Ward el ais, 12 Grat. 440. 
 
 » Fuller V. Steiglitz, 27 Ohio St. 255; 22 Am. B. 312. 
 
§ 188 THE LIEN OF THE ATTACHMENT. 671 
 
 action was made to him in trust for the benefit of the creditors of 
 the assignors, who were inhabitants of New York. The trustee 
 took possession of the property in New York, but did not remove 
 it out of the State. On his return to Boston he was served with 
 process of garnishment by a creditor of the assignors living in 
 Massachusetts, who claimed that by the maxim of law personal 
 property follows the person, and that consequently the property 
 assigned was with the trustee in Massachusetts ; and that inasmuch 
 as assignment was made under the laws of New York, which had 
 no effect in Massachusetts, he had obtained the prior right by his 
 attachment. But the court held the attachment invalid, and that 
 the coming of the trustee into the State of Massachusetts would 
 not defeat the conveyance. 
 
 So, in the case of Clark v. The Connecticut Peat Company, 35 
 Conn. 303, a debt was attached in the State of Connecticut which 
 was owed to creditors in Massachusetts, but which had previously 
 been assigned in that State to a party residing there, and it was 
 held that the assignment being good by the law of Massachusetts 
 was good against the attaching creditor. 
 
 When a receiver, who was appointed in New Jersey, purchased 
 iron with the ftmds of the estate, and sent it to Connecticut, to 
 complete a bridge which the manufacturing company of which he 
 was appointed receiver had contracted to build, the attachment was 
 held invalid.^ 
 
 It has been held, however, that where a corporation of Penn- 
 sylvania went into insolvency under the laws of that State, and 
 made an assignment under the statute, and which was not a com- 
 mon law conveyance, an attachment by a citizen of Rhode Island, 
 in Connecticut, of a debt due from a citizen of Connecticut to the 
 Pennsylvania corporation, was valid.^ 
 
 iPond V. Coke, 45 Conn. 126; 29 Am. E. 668, citing Crapo v. Kelly, 16 Wall. 
 610; Kelly v. Craig, 45 N. Y. 86. See also Story on Conflict of Laws, U 385, 391, 
 398, 289, 231, 232, 404, et leq; Holmes v. Bemsen, 4 Johns. Chy. 460. 
 
 ' Pain V. Lester, 44 Conn. 196, 26 Am. K. 442. For the rule affecting fraudu- 
 lent or voluntary assignments and conveyances, see Ante, I 158 to § 164. For 
 proof of assignment, see Ante, ^ 159. 
 
672 ATTACHMENTS IN CHANCERY. § 188 
 
 Procedure by Attachments in Chancery. 
 
 Jurisdiction in Equity. 
 
 In Virginia' the statute provides that when a person has a claim, 
 legal or equitable, to any specific property, or a like claim to any 
 debt, whether such debt be payable or not,^ or to damages for the 
 breach of any contract, express or implied, if such claim exceed 
 twenty dollars, exclusive of interest, he may on a bill in equity 
 filed for the purpose, have an attachment to secure and enforce the 
 claim, on affidavit made by himself, his agent or attorney, accord- 
 ing to the nature of the case, conforming, as nearly as its nature 
 will admit, to the affidavit required by section twenty-nine hun- 
 dred and fifty-nine ; except that if the claim be to a debt not pay- 
 able, the affidavit shall also state the time when it will be payable. 
 But it is further provided that this section shall not be construed 
 as giving to a court of equity jurisdiction to enfore by attachment 
 a claim to a debt not payable, where the only ground for the atr- 
 tachment is that the defendant or one of the defendants, against 
 whom the claim is, is a foreign corporation, or is not a resident of 
 this State, and has estate or debts owing to the said defendant 
 within the county or corporation in which the suit is, or is sued 
 with a defendant residing therein.' 
 
 In West Virginia the statute* places actions at law and suits in 
 equity upon the same general grounds : " When any action at law 
 or suit in equity is about to be or is instituted for the recovery of 
 any claim or debt arising out of contract, or to recover damages 
 for any wrong, the plaintiff at the commencement of the action or 
 suit, or at any time thereafter and before judgment, may have an 
 
 > Code, ? 2964; Ante, I 173. 
 
 ^ The statute formerly existing has been changed in this respect. See Batchelder 
 V. White, 80 Va. 103. 
 
 ' This confines attachments of this character to cases where the defendant has or 
 is about to dispose fraudulently of his efiects. Wingo, &c. v. Purdy, 87 Va. 472; 
 Hash V. Lore, &c., 88 Va. 720. 
 
 *CodeW. Va., Ch. 106, l\. 
 
§ 188 PROCEDURE BY ATTACHMENTS IN CHANCERY. 673 
 
 order of attachment * * * " But it further provides that 
 " such attachment may be sued out in a court of equity for a debt 
 or claim, legal or equitable, whether the same be due or not, upon 
 any of the grounds aforesaid, but the affidavit, in case the claim or 
 debt be not due, must show when it will become due ; provided, 
 that an attachment shall not be sued out against a foreign corpora- 
 tion for a debt not due upon the ground alone that it is a foreign 
 corporation, nor against a non-resident defendant for a debt not 
 due, unless the affiant shows by his affidavit that such defendant 
 was a resident of this State when the debt was contracted, and 
 that the plaintiff believed he would remain a resident of this State 
 at the time he gave the defendant credit." * 
 
 The Grounds for the Attachment. 
 
 Inasmuch as the attachment in equity may be sued out, whether 
 the claim be a legal or equitable one. the grounds which justify an 
 attachment at law, in Virginia, equally authorize an attachment in 
 equity. The grounds provided by statute ' that the defendant, or 
 one of the defendantSj — 
 
 "First, Is a foreign corporation, or is not a resident of this State, 
 and has estate or debts owing to said defendant within the county 
 or corporation in which the action is, or is sued with a defendant 
 residing therein, or that the defendant, being a non-resident of this 
 State, is entitled to the benefit of any lien, legal or equitable, on 
 property, real or personal, within the county or corporation in 
 which the action is, and the word estate, as herein used, shall in- 
 clude all rights or interests of a pecuniary nature which can be 
 protected, enforced, or proceeded against in courts of law or equity ; 
 but this provision as to equitable estates and interests, so far as 
 amendatory of existing laws, shall not apply to attachments sued 
 out before the passage of this act.' This section, as so enlarged, 
 
 ■CodeW. Va., Ch. 106, ? 1. 
 
 ' Code, ? 2959, as amended by act of February 20, 1892, Acts 1891-92, p. 520. 
 
 ' February 20, 1892. 
 
 43 
 
674 ATTACHMENTS IN CHANCERY. § 188 
 
 shall come under the provisions of section twenty-nine hundred 
 and sixty-four, concerning attachments in equity ; or, 
 
 " Second, Is removing, or about to remove, out of this State, 
 with intent to change his domicile ; or, 
 
 " Third, Is removing, intends to remove, or has removed the 
 specific property sued for, or his own estate, or the proceeds of the 
 sale of his property, or a material part of such estate or proceeds, 
 out of this State, so that process of execution on a judgment, when 
 obtained in said action, will be unavailing ; or, 
 
 "Fourth, Is converting, or has converted, his property, of what- 
 ever kind, or some part thereof, into money, securities, or evidences 
 of debt, with intent to hinder, delay or defraud his creditors ; or, 
 
 "Fifth, Has assigned or disposed of his estate, or some part 
 thereof, with intent to hinder, delay, or defraud ' his creditors. In 
 any such case the clerk of the court in which the action is shall 
 issue an attachment as the case may require." 
 
 In West Virginia ^ the attachment at law or in equity lies when 
 the affidavit is that the affiant believes that some one or more of 
 the following grounds exist : 
 
 "First, That the defendant, or one of the defendants, is a for- 
 eign corporation, or is a non-resident of this State ; or, 
 
 " Second, Has left, or is about to leave, the State, with intent 
 to defraud his creditors ; or, 
 
 " Third, So conceals himself that a summons cannot be served 
 upon him ; or, 
 
 "Fourth, Is removing, or is about to remove, his property (or 
 the proceeds of the sale of his property, or a material part of such 
 property or proceeds) out of this State, so that process of execution 
 on a judgment or decree in such action or suit, when it is obtained, 
 will be unavailing ; or, 
 
 ' It is not enough that the attaching creditor believes and alleges the fraudulent 
 intent; he must prove reasonable and rational grounds for his allegations and belief 
 as the basis of his attachment proceeding. Burruss, Son & Co. o. Trant & Bro. , 
 88 Va. 984; Wingo, Ellett & Crump v. Purdy & Co., 87 Va. 472. 
 
 = Code W. Va., Ch. 106, ?1- 
 
§ 188 PROCEDURE BY ATTACHMENTS IN CHANCERY. Q'75 
 
 "Fifth, Is converting, or is about to convert, his property, or a 
 material part thereof, into money or securities, with intent to hin- 
 der or defraud his creditor^ ; or, 
 
 " Sixth, Has assigned or disposed of his property, or a material 
 part thereof, or is about to do so, with intent to defraud his credit- 
 ors; or, 
 
 " Seventh, Has property or rights in action which he conceals ; 
 or, 
 
 " Eighth, Fraudulently contracted the debt, or incurred the lia- 
 bility for which the action or suit is about to be brought." 
 
 The Suit. 
 
 In West Virginia the attachment may be sued out with or in 
 any ordinary suit in equity.' 
 
 In Virginia the statute contemplates the suing out of an attach- 
 ment only " at the time of or after the institution of any action at 
 law," ^ but further provides that the person to whom the debt, etc., 
 is payable may " on a bill in equity filed for the purpose," etc. So 
 that it is not competent to sue out an attachment in any pending 
 suit in equity as merely ancillary thereto, but there must be a bill 
 filed for the purpose. 
 
 Hence every attachment in equity (unless the bill in the suit 
 shows that it was filed for the purpose of an attachment) must 
 proceed by independent bill which sets out that it is for the pur- 
 pose of obtaining an attachment. 
 
 The Bill. 
 
 Except that it must be for the purpose of obtaining the attach- 
 ment, the bill must be like any other bill in chancery, making its 
 complaint with fullness and certainty, and making all necessary 
 parties and prayers under the rules which govern the framing of a 
 bill in any other case. 
 
 •CodeW. Va., Ch. 106, §1- 
 ' Code, i 2959. 
 
676 ATTACHMENTS IN CHANCERY. § 188 
 
 If, however, a suit is already pending which fully states the 
 complainant's case, there is no reason why the bill for the attach- 
 ment may not properly recite the pending suit, pray that the 
 bill and pi'oceedings be read as parts of the attachment bill, and 
 that the proceeds of the sale of the attached property be applied 
 to the satisfaction of the debt sought to be recovered in the main 
 
 suit. 
 
 The Affidavit. 
 
 If the bill praying the attachment contains the averments of 
 grounds which justify the attachment it is of itself, if sworn to, a 
 sufficient affidavit. 
 
 The affidavit may, however, be independent of the bill, in which 
 case the form of it may be according to the grounds upon which 
 the attachment is sought to be sued out.' 
 
 The statute of West Virginia'' has also this provision as to the 
 affidavit, " and unless the attachment is sued out upon the first of 
 such grounds, the affiant shall also state in his affidavit the material 
 facts relied upon by him to show the existence of the grounds 
 upon which his application for the attachment is based. But 
 upon objection to the sufficiency of such facts, the affiant shall 
 have the right, within such time, not exceeding ten days, as may 
 be prescribed by the court in which the action or suit is pending, 
 to file a supplemental affidavit, stating any other facts which may 
 have come to his knowledge since the filing of the original affidavit, 
 and which are relied upon to show the existence of such grounds ; 
 and when filed, such supplemental affidavit shall be taken as a 
 portion of the original." 
 
 The Decree. 
 
 The statute' requiring the proceeding by attachment in equity 
 to " be the same as in other suits in equity," it is only necessary 
 
 ' For forms of affidavits, see 2 Barton's Law Pr., p. 936 to 939, and Post, Ap- 
 pendix. 
 2 Code W. Va., Ch. 106, | 1. 
 'Code, 12964. 
 
§ 188 PEOCEDURE BY ATTACHMENTS IN CHANCERY. 677 
 
 to refer to the discussion of this subject and the forms of decrees 
 generally as contained in this book/ 
 
 Property levied on that is expensive to keep or perishable may 
 be sold by order of the court, or in the circuit court or chancery 
 court of the city of Richmond, by order of the judge in vacation ; 
 and such sale shall be made in the same manner as if it were a 
 sale under execution, except that where the claim for which the 
 attachment was sued out is not yet payable, or the court or judge 
 sees other reasons for directing a credit, the sale under this pro- 
 vision of the statute^ shall be on a credit until the time it is pay- 
 able, or such other time as the court or judge may direct ; and for 
 the proceeds of sale bond with sufficient surety shall be taken, 
 payable to the officer, for the benefit of the party entitled, and 
 shall be returned by the officer to the court. 
 
 When the claim of the plaintiff shall have been established,^ the 
 court must order the sale of the attached property, which shall not 
 have been already released or sold, and must direct the proceeds 
 of sale, and whatever else is subject to the attachment, to be ap- 
 plied in satisfaction of the decree. But no real estate can be sold 
 until all other property and money subject to the attachment has 
 been exhausted, and then only so much thereof as is necessary to 
 pay the decree. Such a sale is conducted just as is done in any 
 other case of the sale of property under decrees in chancery, and 
 is subject to all the rules that are applicable thereto. 
 
 In West Virginia the statute * also provides that where a sale of 
 real estate is ordered the court shall prescribe, in the order, the 
 terms of such sale and the officer or person by whom it should be 
 made. The person making the sale is required to report to the 
 court the name of the purchaser, the sum for which it sold, and 
 the time and place of such sale. The court^ then, for good cause, 
 
 ' § 183; ? 231; Post, Appendix. 
 
 ^Code, ? 2975; Code W. Va., Ch. 106, I 13. 
 
 ' Code, ? 2982. * Code W. Va., Ch. 106, ? 21. 
 
 ' Or judge in vacation. Code, § 3426, as amended by Acts 1897-8, p. 744. 
 
678 ATTACHMENTS IN CHANCERY. § 188 
 
 may refuse to confirm the sale, and order the property to be resold, 
 but if good cause for setting aside the sale be not shown the court 
 shall confirm the same, and shall direct a deed of conveyance of 
 the real estate so sold to be made to the purchaser thereof by the 
 officer or person who sold the same or by a special commissioner, 
 appointed for that purpose, whenever the purchase money thereof, 
 with its interest, shall have been fully paid. 
 
 By the statutes of both States ' bonds are required to be given 
 as a condition to a decree for sale,^ unless there has been service 
 of the attachment upon the defendant against whom the claim is, 
 or unless he has appeared in the suit. 
 
 ' Code, § 2983; Code W. Va., Ch. 106, § 21 ; Post, Appendix. 
 ^ Confined to a sale of real estate in West Virginia.