Olnntpll ICaut §>rlinnl Htbrary ilarsliaU lEqntty CEoUcrtton (Sift nf E. 3). iHarshaU. IC.ffi. 1. 13U4 CORNELL UNIVERSITY LIBRARY 3 1924 084 260 631 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/cu31924084260631 EQUITY PROCEDURE EMBODYING THE PRINCIPLES OF PLEADING AND PRACTICE APPLICABLE TO COURTS OF EQUITY AND CONTAINING MANY PRECEDENTS OF GENERAL PRACTICAL UTILITY DESIGNED TO IiIEET THE DEIilANDS OF PRACTICE IH VIRGINIA AND WEST VIRGINIA AND FOR GENERAL USE IN OTHER STATES BY CHARLES E. HOGG Author of "Pleading and Forms," and of "Eqjiity Principleg." IN TWO VOLUMES VOLUME IL CINCINNATI, THE W. H. ANDERSON CO., LAW BOOK PUBLISHERS, 1903. Copyright, 1903, BY THE W. H. ANDERSON CO. TABLE OF CONTENTS. VOLUME II. CHAPTEE XXXIII. INFANTS AND INSANE PERSONS. PAGE ^811. The protection of infants and insane persons by courts of equity 912 |812. 'ihe sale of property belonging to persons under disability 912 §813. As to the leasing or incumbering of the estate of persons un- der disability 913 §814. As to the renewal of leases on behalf of persons under dis- ability 913 §815. Suits by infants and insane persons to set aside conveyances and transfers of property 914 §816. Who may sell, lease, or incumber estate of infants and insane persons 914 §817. The necessary parties to a proceeding to sell, lease or en- cumber the estate of persons under disability 915 §818. The bill or petition, in a proceeding to sell, lease or encumber the estate of persons under disability 916 §819. What property of persons under disability may be sold under the statute 917 §820. As to the necessity of a guardian ad litem in a suit to sell an infant's or insane person's lands 918 §821. Who should be appointed a guardian ad litem 919 §822. The duties of a guardian ad litem 920 §823. The powers of a guardian ad litem 920 §824. The compensation of a guardian ad litem, 921 §825. Summary proceeding for the sale, lease or mortgage of the estate of an infant or insane person 921 §826. The decree to sell the estate of persons under disability or those interested in a trust 922 §827. The investment of the proceeds of sale of the infant's or other person's estate 923 XXXV XXXVm TABLE OF CONTENTS VOLUME IL PAGE A third general form. Where the> complainant is an infant. Where plaintiff is an infant, second form. Where plaintiff is an infant, a third form. Where the complainant is the 'committee of an insane person. Where the plaintiff is a private corporation. Where the plaintiff sues on behalf of himself and all other lien creditors to enforce a judgment Where the plaintiff sues to set aside a preference created by the voluntary act of the debtor. Where the plaintiff sues as administrator. Where plaintiff sues as administrator with the will an- nexed. Where plaintiff sues as executor. Where the plaintiff sues as special receiver. Where plaintiff sues as special commissioner. Where the plaintiff sues as administrator de bonis won. Where the plaintiffs sue as partners. Where the plaintiff sues as a surviving partner. Where the plaintiff sues as a municipal corporation. §876. The premises or stating part of the bill !>A3 The confederating part of the bill 983 The charging part of the bill 984 The jurisdiction clause of the bill 984 The interrogatory part of the bill 985 The prayer of the bill for relief 985 Another form of prayer for relief. Prayer for an answer, oath waived — injunction against proceedings at law — declaration of trust — conveyance- Prayer for an injunction. Prayer for the production of deeds, papers, etc. The prayer for process. CHAPTER XXXVII. THE TITLE.— GENERAL FORM. THE PRECIPE, PROCESS, AND FORMS RELATING THERETO. §883. General observations as to forms 990 §884. The ordinary form of a precipe 991 Another form of an ordinary precipe. Precipe where there are several defendants, some of whom are non-residents and infants. §885. The summons commencing a suit in Virginia 992 The summons commencing a suit in West Virginia. The affidavit of the non-residence of the defendant. The affidavit of non-residence and as to the unknown de- fendants. §877 §878 §873 TABLE OF CONTENTS VOLUME II. XXxix PAGE The order of publication in West Virginia 994 Certificate as to the publication of the order to be appended thereto ' ■ 995 The afSdavit as to the posting of an order of publication in West Virginia to be appended thereto 995 Certificate of publication and posting in Virginia 996 §890. Order of publication in Virginia as to a natural person — Order publishing process as to corporations ^ 990 §890a. Sheriff's return upon process 998 Where defendant is served in person. Sheriff's return upon summons to be served on a natural person when service is made on a member of defend- ant's family. Where service is made on defendant by posting a copy of the process at the front door of his usual place of abode. When service is made upon a corporation upon its attor- ney. Where service is made upon a corporation upon its presi- dent. Where service is made upon a corporation when it cannot be had upon its president or other chief officer. Where service is made upon a corporation which has failed to comply with section 24. chapter 54 of the Code of West Virginia. Where service is made in West Virginia upon a corporation by delivering a copy of the summons to the depot or station agent. Where service is made in West Virginia upon a corporation by delivering a copy of the summons to a, director. Where service is made in West Virginia upon a foreign in- surance company. Where service is made in West Virginia upon an unincor- porated common carrier. Where service is made upon a corporation in Virginia. Where service is made upon a garnishee in an attachment suit in West Virginia. Where an attachment has been levied. Cl-r AFTER XXXVIII. ORIGIXAL BILLS. §892. Some further observations as to forms 1009 §893. To recover back purchase money on a deficiency in the quantity of land sold. Abatement of purchase money 1010 §894. To recover back purchase money on deficiency in quantity of land sold.— Short form 1012 xl TABLE OF CONTENTS VOLUME 11. PAGE For an account of partnership dealings, the appointment of a receiver, and for an injunction 1014 For alimony without divorce 1017 §897. For annulment of marriage on the ground of duress 1019 §898. For the annulment of marriage on the ground that the defend- ant had a former wife living at the time of the second mar- riage 1020 §899. In an attachment suit 1021 §900. For the establishment of the boundaries to real estate in cases wherein they have become confused 1023 §901. For the cancellation of a tax deed as creating a cloud upon title to real estate 1024 §902. To cancel a deed carrying apparent title as creating a cloud upon the title of the plaintiff 1026 §903. To cancel contract of sale as creating cloud upon title to real estate . . . ., 1028 §904. For the cancelling or rescission of an instrument on the ground of fraud 1031 §905. For the cancellation of a written instrument on the ground of undue influence 1033 §906. For the cancellation of a written instrument on the ground of mental incapacity 1036 §907. For the cancellation of a written instrument because of in- fancy 1040 §908. For the cancellation of a written instrument because of the fidu- ciary relationship of the parties 1043 §909. For the cancellation of a written instrument because of drunken- ness 105C: §910. To carry decree into execution 10.52 §911. For contribution among co-sureties 1053 §912. For the dissolution of a corporation in a, court of equity 105.5 §913. In a creditor's suit against the estate of a decedent 1057 §914. For the rescission of a contract of a corporation because the act is ultra virefs 1059 §915. In a creditors' suit enforcing judgment lien 1067 §916. In a, creditor's suit by an executor or administrator to subject the real estate of the decedent to the payment of his debts. . 1070 §917. To have an instrument in the form of a. deed declared to be a mortgage 1071 §918. Of discovery merely 1073 §919. Of discovery in aid of defense at law 1077 §920. To obtain a divorce from the bonds of mati'imony on the ground of adultery, and for alimony and an injunction. . 1078 §921. For divorce on the ground of impotency 1081 §922. To obtain a divorce a rincnJo matrimonii because of peniten- tiai-y sentence lO^cjo §923. To obtain a divorce from the bonds of matrimony because of conviction of an infamous offense 1082 TABLE OF CONTENTS VOLUME II. xli PAGE §924. To obtain a divorce from the bonds of matrimony because of three years' desertion 1083 J925. To obtain a divorce from the bonds of matrimony because of pregnancy at the time of marriage 1084 §926. To obtain a divorce from the bonds of matrimony where the wife had been notoriously a prostitute before marriage. . . .1084 §927. To obtain a divorce a mensa et thoro for cruel treatment 1085 §928. To obtain a divorce a mensa et thoro because of reasonable ap- prehension of bodily hurt 1086 §929. To obtain a divorce a menso et thoro because of abandonment or desertion. 1086 §930. To obtain divorce a menso et thoro because of habitual drunk- enness, praying custody of children and an injunction 1087 §931. For dower in an ordinary suit by a widow 1087 §932. For dower by widow against an alienee of a. former husband. .1088 §933. For the foreclosure of a mortgage 1089 §935. To set aside a. fraudulent conveyance 1091 §936. To set aside fraudulent conveyance by corporation made to se- cure some of its officers 1094 §937. To set aside voluntary conveyance to the prejudice of the rights of creditors 1099 §938. To set aside a, fraudulent conveyance. — Short form 1100 §939. To set aside a conveyance or transfer so far as the same creates a preference 1 101 §940. By guardian to sell lands of an infant in Virginia llOi! §941. By a guardian to sell lands of an infant in West Virgina. . . .1104 §941a. By guardian to lease infants' lands 1104 §942. Against guardian and his suiety by ward, after attaining ma- jority, for a settlement and final accounting 1106 §944. Of injunction to judgment at law 1108 §945. For injunction against cutting timber pending an action of ejectment 1111 §945a. Of injunction against closing right of way 1113 §9456. Of injunction to judgment at law on the ground of after dis- covered evidence 1116 §946. Of injunction against laying gas pipe on the plaintiff's prem- ises 1118 §947. Of injunction by mortgagee or cestui que trust against a, mort- gagor or grantor in trust deed, inhibiting the latter from cutting timber on the mortgaged or trust premises 1119 §948. Of injunction by receiver restraining interference with prop- erty in his possession 1121 §949. To enjoin the erection of a nuisance 1122 §950. To enjoin a nuisance by fouling a water course 1124 §951. To enjoin the sale of property under i trust deed 1125 §952. To enjoin sale of property under deed of trust to secure pay- ment of money borrowed from building and loan associa- tion 1127 xlii TABLE OF CONTENTS VOLUME II. PAGE §953. To enjoin a municipal corporation from the creation of an ille- gal indebtedness 1130 §954. To restrain the collection of an illegal tax 1139 §955. To restrain and inhibit the extraction of oil or gas from the lands of the plaintiff 1143 §956. To restrain the taking of private property for public use with- out compensation 1 14G §957. Against an executor by legatees and the administrator of a deceased legatee, for the payment of their legacies and shares of the residuary personal estate 1147 §958. To restrain and inhibit laborers and members of labor organiza- tion from molesting or injuring the plaintiff in the conduct of his busines 1150 §959. Bills of interpleader 1162 §960. Of committee of insane person to sell such person's estate. . . .1170 §961. To impeach a decree on the ground of fraud 1171 §962. In a suit upon a lost instrument 1175 §963. To set up a lost will 1176 §964. To enforce a laborer's lien against a corporation 1178 §965. To enforce a mechanics' lien 1180 §966. To enforce a. vendors' lien 1182 §967. For partition 1183 §968. For partition and account 1184 §969. For partition when some of the parties are unknown 1185 §970. For the dissolution of a partnership and for an injunction. . . .1187 §971. For dissolution of partnership because of defendant's misap- plication of funds to his own use, and for a receiver. — Short form 1189 §972. To reform or correct a, writing on the ground of mistake Hal §973. To surcharge and falsify the settlement of a personal repre- sentative 1193 §974. For specific performance by vendor against vendee 1195 §975. For specific performance by vendee against vendor 1196 §976. For specific performance of parol agreement for sale of land where there has been a part performance 1198 §977. By surety to be subrogated to rights of creditor 1200 §978. For the removal of a trustee because of misconduct in his man- agement of the trust ^und, for an injunction and a, receiver 1202 §979. By a trustee to obtain the advice of the court touching his du- ties, and for an auditing of his accounts 1204 i980. For the establishment and enforcement of a. trust 1207 §981. To set aside a will — general form 1208 §982. To set aside a will on the ground of vmdvie influence and men- tal incapacity 1209 §083. To construe a will 1212 §984. To perpetuate testimony. 1215 §985. To take testimony de hene esse 1216 TABLE OF CONTENTS VOLUME II. xliii CHAPTEE XXXIX. BILLS NOT ORIGINAL. PAGE §986. Amended or supplemental bill 1218 §987. Amended and supplemental bill. — Another form 1'Z19 §988. Amended or supplemental |bill. — A further form 1220 §989. Amended bill. — Another form, and one often used in practice. .1221 §990. The amendment to a bill 1222 §991. Of revivor by the original complainant, against the executor of the original defendant, who had answered the original bill before his death 1222 §992. A cross-bill 1224 §9920. A cross-bill in the nature of a plea, puis darrein continuance . . 1228 §993. Of review upon errors in law 1229 §994. Of review on discovery of new matter 1231 CHAPTER XL. PETITIONS. §995. Observations 1232 §995a. By guardian for the sale of infant's lands 1233 §996. By guardian for the lease of infant's lands 1234 §997. By guardian to give mortgage or deed of trust on infant's land. 1235 §998. To transfer estate of minor or insane person into another State or county 1237 §999. By guardian to be allowed to apply part of the principal to the education or maintenance of the ward 1238 §1000. By guardian for permission to submit matter to arbitration. .1239 §i001. By husband for release of inchoate right of dower of insane wife 1241 §1002. By a guardian to remove proceeds of the sale of real estate of the infant out of the State 1242 §1003. By church trustees for the sale of church property 1244 §1004. Petition making new parties to suit 1246 §1005. Petition for rehearing 1247 §1006. Disputing the validity of attachment by third party 1248 §1007. For a re-hearing by a non-resident after the entry of a decree upon an order of publication in an attachment suit 1250 §1008. Where the petitioner was proceeded against as an unknown party 1251 §1009. For leave to file a bill of review for errors apparent upon the face of the decree . . . . i 1252 §1010. For leave to file a bill of review upon discovery of new matter. . 1253 CHAPTER XLI. DEMURRERS. §1011. Title 1255 §1012. .Joint and several demurrer 1256 xliv TABLE OF CONTENTS • VOLUME II. PAGE §1012a. Introduction to a demurrer to the whole of a bill 1256 §10126. Where the demurrer is to part of the bill, or to the relief.. 125G §1012c. General words of conclusion to demurrer to the whole of the bill 1257 §1013. The usual form of demurrer in the Virginias 1257 §1014. Another common form of demurrer in the Virginias r25.S §1015. Demurrer for want of parties 1258 §1016. Demurrer for multifariousness 1258 §1017. Demurrer to a bill filed by an infant without a next friend. . . 1259 CHAPTER XLII. PLEAS IN ABATEMENT. §1018. To the jurisdiction of the court. 1260 §1019. To the jurisdiction of the court. — Another form 1261 §1020. Of want of proper parties 1262 §1021. On the ground of the plaintiff's infancy 126:5 §1022. On the ground of plaintiff's insanity 126.'5 §1023. On the pendency of another suit 1264 §1024. Controverting the existence on the grounds upon which an order of attachment was issued 1265 CHAPTER XLIII. PLEAS IN BAR. §1025. Of the statute of limitations 1267 §1026. Of the statute of frauds to a bill for. specific performance. . . .1268 §1027. Of dismissal of former suit for same matter 1261) §1028. Of judgment at law for same matter 1270 §1029. Of release 1272 §1030. Plea of stated account 1272 §1031. Of a will 1273 § 1032. Of award 1274 §1033. Of purchaser for valuable consideration without notice 127. "> §1034. To bill of interpleader 1277 §1035. That plaintiff not administrator as alleged, because supposed intestate is living 1277 §1036. To bill of discovery that another suit is pending for the same discovery 1278 §1037. That complainant has no interest in the lands, the title of which he seeks to discover 1270 §1038. That the discovery would subject defendant to forfeiture 1280 §1039. That discovery would compel the defendant to betray confidence as an attorney 1280 §1040. To a bill of revivor 1281 §1040o. Of bankruptcy 1282 TABLE Ol' CONTENTS VOLUME II. xlv CHAPTER XLIV. DISCLAIMER. PAGE §1041. A single disclaimer 1285 §1042. Answer and disclaimer 128G CHAPTER XLV. THE ANSWER. §1043. Of answer by one defendant 1289 §1044. Joint and several answer 1289 §1045. Of one of several defendants 1290 §1046. To an answer of one defendant 1290 §1047. To an answer of several defendants 1290 §1048. Where defendant admits a statement 1291 §1049. \Vhere a defendant believes a staement may be true, but quali- fies his admission of it not knowing the same of his own knowledge 1291 §1050. Where defendant is entirely ignorant with regard to the state- ment in the bill 1292 §1051. Where a schedule of deeds is required to be set forth in the answer 1292 §1052. Where an account of rents, or moneys received, or paid, is required to be set forth by several defendants 1293 §1053. Accounts. — Reference to books containing them 1293 §1054. Accounts refused as being useless before decree 1294 S1055. Admission for purpose of the suit 1294 § 1056. Reference to schedule 1294 §1057. Settled aceomits.— Claim of 1295 §1058. Submission by trustee to act 1295 §1059. Where the defendant relies upon the statute of frauds 1295 §1060. Where the defendant relies upon the statute of limitations. .. 1296 §1061. A formal general conclusion 1296 §1062. The usual conclusion 1297 §1063. Of an infant defendant by his guardian ad litem 1297 §1064. Of an infant to a bill or petition to sell his esjate. as well also as of the guardian atJ litem himself 1298 §1065. A short and usual form for an answer 1299 §1066. To a bill for an injunction to stay proceedings at law on a judgment, drawn to illustrate .the principle permitting all defenses in equity to be made by answer 1299 §1067. In the nature of a cross-bill setting up a claim to affirmative relief 1301 §1068. Averring fraud in procuring contract sought to be enforced. . .1302 §1069. To a bill for divorce setting up condonation 1303 §1070. To a bill for ilivorce setting up recrimination 1304 §1071. To a bill for divorce setting up a claim to affirmative relief.. 1304 xlvi TABLE OJ CONTENTS VOLUME IL PAGE §1072. Of garnishee in attachment suit 1306 §1073. An amended answer 1307 §1074. Amended answer after exceptions sustained to the original .. 1307 §1075. Setting up partition by parol agreement to a suit for par- tition ■ 1308 CHAPTER XLVI. THE REPLICATION. §1076. The general replication 1310 §1077. The plaintiff's special reply in writing to the answer of de- fendant setting up claim to affirmative relief 1311 §1078. The special reply of a defendant to the answer of his co-de- fendant, wherein affirmative relief is sought by the latter against the former 1312 CHAPTER XLVII. AFKIDAVITS. §1079. To any pleading in West Virginia made by a party suing in his own right 1313 §1080. To any pleading by ;m administrator or other fiduciary in West Virginia 1314 §1081. To a bill of, or answer to, an injunction in West Virginia, when verified by a person other than the plaintiff 1314 §1082. To a bill in chancery in Virginia 1315 §1083. To a bill for an injunction in Virginia 1315 §1084. To a bill by a fiduciary in Virginia 1316 §1085. To an answer in Virginia 1316 §1086. To it bill of interpleader 1317 §1087. For an attachment in ^A'est Virginia 1317 §1088. To a bill on a lost instrument 1318 §1080. To a bill of review on discoveiy of new matter ~. .1319 §1090. For an attachment in Virginia for specific personal property . 1319 §1091. For an attachment in a suit in Virginia to recover a debt or damages for the breach of a contract 1321 §1092. For a continuance 1321 §1093. On non-residence of witness, that his deposition may be taken. 1323 §1093f(. Of non-residence of defendant for the purpose of an order of publication 1323 §1094. To be taken and subscribed by commissioners appointed to make partition 1 324 §1095. By poor person to relieve from giving security for costs 1325 §1096. Of default to file an answer with a view to compel the filing thereof 1325 §1097. To the seryice of process or notice by a private person 1326 TABLE 01' CONTENTS VOLUME II. ^slvii CHAPTER XL VIII. NOTICES. PAGE §1098. To hear petition of guardian to sell property of his minor ward 1327 §1099. To hear petition to release inchoate right of dower of insane wife 1328 §1100. To take depositions 1329 §1101. Of application for an injunction 1329 §1102. Of application for the appointment of a receiver. — General form 1330 §1103. Of application for the appointment of a receiver in a suit to foreclose a mortgage 1330 §1104. Of the application for the appointment of a receiver in a part- nership suit 1441 §1105. By trustee for sale of property under a deed of trust in West Virginia 1332 §1106. Of sale of infant's lands in suit by guardian 1332 §1107. Of sale of property by trustee in a deed of trust in Virginia. . . 1333 §1108. For the appointment of a, new trustee in a deed of trust. ... 1334 §1109. In a proceeding to transfer property out of the State belonging to persons under disability 1334 §1110. Xctice to creditors in a suit to subject the real estate of a, decedent to the payment of his debts 13.!.') §1111. To lien holders in a suit to enforce judgment liens 133() §1112. Of sale of real estate to be made by a special commissioner. . .1336 §1113. Of motion to dissolve an injunction 1337 §1114. Of application for a rehearing of a decree entered by default. .1338 §1115. That a commissioner's report has been completed 1330 §lll.')o. To correct decree wherein there is clerical error 1339 §1116. Of taking an account by a commissioner in chancery 1340 CHAPTER XLIX. REPORTS. I §1117. Of a commissioner in chancery upon a reference for an account. 1341 §1118. Of sale by a special commissioner 1343 §1119. Of commissioners appointed to as.sign dower 134! §1120. Of commissioners appointed to make partition of real estate, where partition is made 134.5 §1121. Of commissioner as to whether minor's interest will be pro- moted in a suit to sell infant's lands 1347 §1122. Of sale of special commissioner in suit to sell infant's lands. .134S §1123. Of commissioners appointed to make partition, that lands are not susceptible of partition 1350 §1124. Of commissioners appointed to assign dower and make partition among the heirs at law 1350 xlviii TABLE OF CONTENTS VOLUME IL PAGE §1125. Of a commissioner upon exceptions to an answer 1351 §1126. Of a commissioner in a, suit to surcharge and falsify the settle- ment of the accounts of a fiduciary 1352 §1127. Of sale of property under an order of attachment 135:^ CHAPTER L. EXCEPTIONS. §1128. To an answer for insufficiency 1354 §1129. To an answer for impertinence and scandal 13o5 §1130. To the report of a commissioner in chancery 1356 §11.'J1. To a special commissioner's sale -1356 §1132. To the report of, a, commissioner assigning dower 1357 §1133. To the report of commissioners making partition of real estate. 1358 §1134. To the sufficiency of an attachment bond 1358 CHAPTER LI. ORDERS AXD DECREES. §1135. Striking plea in abatement from the record 136? §1136. Setting plea down for argument 1364 §1137. Holding plea in abatement insufficient upon argument 1364 §1138. Referring cause to a commissioner to take an account in a suit against the estate of a decedent 1 36.1 §1139. Referring cause to a commissioner to take an account in a creditors' suit to enforce judgment liens 1366 §1140. Referring cause to a commissioner in a suit to surcharge and falsify the settlement of the accounts of a fiduciary 1367 §1141. Amending bill before appearance by tlip defendant 13GS §1142. Allowing bill to be amended after an appearance and demurrer. 136S §1143. Allowing bill to be amended after answer filed by the de- fendant 136S §1144. Allowing bill to be amended by adding new parties, and re- manding; cause to rules for that purpose l:i6!P §1145. Allowing bill to be amended to conform to the proofs and with- out prejudice to an injunction' issued in the cause 1370 §1146. Allowing the return of a summons to be amended 1371 §1147. Allowing an answer to be amended 1371 §1148. Entering motion to quash an attachment, and orerruling the same 1372 §1149. Entering motion to quash an attachment and sustaining said motion 1372 §1150. Filing plea in abatement of an attachment 1373 §1151. For specific personal property embodying an order of sale under the hiws of Vircinia 1373 §1152. Filing petition of third party making claim to the property attached or to some interest therein 1374 TABLE OF CONTENTS VOLUME II. xlix PAGE §1153. Making up issue on petition of intervention in attachment. . 1.375 §1154. Making up issue under the statute of West Virginia on plea in abatement of an attachment 1375 §1155. Hearing cause on intervention and garnishment in attachment. 1376 §1156. Of sale of personal property upon attachment and order of publication 1377 §1157. Of sale of real estate upon attachment and order of publica- tion 1378 §1158. The sale of real estate upon an attachment in a suit wherein the defendant has appeared 1379 §1159. For sale of personal estate upon attachment in a suit to which the defendant has appeared 1381 J 1160. For the sale of property under attiicbment that is perishable or expensive to keep 1382 11161. Confirming sale under an attachment 1382 §1162. Annulling marriage 1384 §1163. Tendering answer and asking leave to file the same 1384 §1164. Filing answer and noting exceptions thereto 1384 §1165. Referring answer to a commissioner to e.xpunge scandalous matter 1385 §1166. Adjudging answer insutficient and directing further answer to be filed 1385 §1167. Filing answer and general replication thereto 1386 §1168. Granting permission to guardian to submit to arbitration a matter relating to his ward's estate 1386 §1169. Submitting cause to arbitration and making the same a rule of court 1386 §1170. Filing award of arbitrators, making allowances to them and directing- summons to show cause against said report 1387 8 1171. Entering up award as the decree of the eovirt 1388 §1172. Of attachment for contempt of court 1388 ,,1173. Finding against intervener in an attachment suit 138!) §1174. For sale of property attached when debt is not due 1390 §1175. Against garnishee in an attachment suit 1392 §1176. Overruling defendant's exceptions to an attachment bond 1393 §1177. Sustaining defendant's exception to an attachment bond 1393 §1178. Dismissing bill withovit prejudice 1394 §1179. Sustaining exceptions to forthcoming bond in attachment suit and requiring officer to obtain a good bond 1394 §1180. Cancelling an instrument as n cloud upon title to real estate. .l:'.9.> §1181. Cancellation or rescission of an instrument on the gi'ound of fraud 1395 §1182. Cancellation or rescission of an instrument on the gi-ound of infancv . 1 :i9fi §1183. Cancellation or rescission of a writing because of the plaintiff's insanity ''"98 §1 184. Authorizing sale of church property 1398 §1184a. Overruling demurrer to hill and giving rule to answer 1400 i TABLE OF CONTENTS VOLUME IL PAGE §11846. Sustaining demurrer to bill and remanding cause to rules with leave to amend 1400 §1185. Suggesting non-residence of plaintiff and demanding security for costs 1400 §1186. Of divorce a mensa et thoro, where the defendant has not appeared 1401 §1187. Of divorce a mensa et tlioro for alimony, where the defendant has appeared 1401 §1188. Of divorce a vinculo matrimonii and awarding custody of children 1402 §1189. Of divorce o vinculo matrimonii and for alimony 140:{ §1190. A divorce a vinculo matrimonii after a former divorce a mensa et thoro 14114 §1191. Of divorce granted on answer in nature of cross-bill setting up claim to affirmative relief , 1404 §1192. Refusing a divorce to the plaintiff, and to the defendant on an answer in the nature of a cross-bill 1405 §1193. Directing payment of temporary alimony to the plaintiff in terni time 140(5 §1194. Directing payment of temporary alimony to the defendant in vacation 1400 §1195. Appointing commissioners to assign dower 1408 §1196. Confirming report of commissioners assigning dower 1409 §1197. Directing the payment of a gross sum in lieu of dower 140!> §1198. Overruling some exceptions to commissioner's report and sus- taining others 141 ;V §1199. Of reference for the settlement of executorial and administra- tion accounts 14 1 1 §1200. Dismissing bill to set aside deed on the grounds of fraud and undue influence 1412 §1201. Setting aside fraudulent conveyance in favor of creditors. ... 1413 §1202. For distribution of personal estate by administrator or exec- utor 1414 §1203. Foreclosure of mortgages by sale of the premises 1415 §1204. For an account of rents and profits under bill for equity of redemption 1416 §1205. Referring cause on guardians bill to sell real estate to a commissioner in chancery 1417 §1206. Confirming commissioner's report and directing sale of in- fant's lands 1418 §1207. Upon guardian's petition to sell real estate of infant, hearing evidence and authorizing sale thereof 1420 §1208. Confirming sale of infanfs land and directing investment of proceeds of sale 1421 §1209. Entering rule against purchaser at judicial sale for failure to comply with his purchase 142:! TABLE Of CONTENTS VOLUME II. li PAGE §1210. Overruling exceptions to commissioner's report of sale of in- fant's land and requiring purchaser to comply with terms of sale 1424 §1211. Awarding an injunction by a judge in vacation to restrain the commission of waste 142.5 §1212. Awarding an injunction by the court in term time to judg- ments at law 1420 §1213. Awarding injunction in vacation without bond 1427 §1214. For an injunction against a corporation 1427 §1215. Made in vacation overruling motion to dissolve an injunction. 1428 §1216. Made in vacation dissolving an injunction 1428 §1217. Made in term time overruling motion to dissolve injunction. .1429 §1218. Made in term time, dissolving an injunction and dismissing the bill 1429 §1219. Dissolving injunction to an action at law, and setting aside a confession of judgment 1430 §1220. Perpetuating an injunction to a, trust sale 1430 §1221. Dissolving injunction and discharging receiver 1432 §1222. Dissolving injunction unless new bond be given 1432 §1223. Directing issue out of chanceiy 1433 §1224. Directing an issue devisaint vel non 1433 §1225. Enforcing mechanics' lien 1435 §1220. Enforcing vendor's lien 1437 §1227. Setting up lost instrument and entering decree thereon 1438 §1228. Declaring a deed to be a mortgage 1439 §1229. Authorizing mortgage on lands of infant by his guardian. . .1441 §1230. Confirming report of guardian as to borrowing money and authorizing the execution of a mortgage 1441 §1231. Appointing commissioners to make partition of real estate, and diiecting manner of partition 1442 §1232. Confirming report of commissioners in making partition of the real estate 1444 §1233. Confirming commissioner's report in creditors' suit to enforce judgment liens, and appointing special commissioner to sell land 1445 §1234. Filing cross-bill and appointing receiver, as therein prayed for 1447 §1235. Appointing receiver to rent real estate 1448 §1236. Appointing receiver in vacation — general form 1448 §1237. Of sale in a suit where the property of principal and surety may be sold .• 1450 §1238. Of sale against lands of decedent 1450 §1239. For the specific performance of a contract for the sale of real estate 1452 §1240. For specific jjerformance after the writing has been reformed. .1453 §1241. Upon the verdict of a jury upon an issue out of chancery. . . .1454 §1242. Upon verdict of jury devisavit vel non finding for the will. . .1455 lii TABLE OF CONTENTS VOLUME II PAGE §1243. Upon verdict of jury on an issue devisavit vel non finding against the will 145G §1244. Setting up a lost will 1457 §1245. For the construction of a will 1460 CHAPTEE LII. MISCELLANEOUS FORMS. §1246. Notice of lis pendens 1464 §1^47. Exceptions to delivery bond taken by the officer levying an attachment 1465 §1248. Notice of motions under Virginia statutes to quash an attach- ment in vacation 1406 §1249. Affidavit to require plaintiff to elect whether she will proceed at law or in equity in one of two suits fdr tlie same cause, one pending in equity, the other at law 1467 §1250. Order presenting affidavit and making motion to require plain- tiff to elect whether she will proceed at law or in equity in one of two suits for the same cause, one pending in equity. the other at law 1468 §1251. Of verdict on intervention in attachment 14o9 §1252. Bill by committee of lunatic to sell lands of the latter, setting out specific bids made for the same 1470 §1253. Decree in divorce suit restoring plaintiff to maiden name.... 1472 §1254. Decree against personal representative of the estate of a de- cedent 1473 §1255. Decree directing issue to determine question of fraud and mental incapacity 1473 §1256. Order dismissing- bil for plaintiff's failure to give security for costs 1474 §1257. Order for leave to file a bill of review 1475 §1258. Caption for decree or order, with title of cause 1475 §1259. General form of an order 1470 §1260. General form of a decree 1470 §1261. The recitals of a decree 1477 §1262. Order for ri-vival of suit 1477 §1263. Final decree for dissolution of partnership, and confirming report made in the cause 147S §1264. Order making petitioner party to the suit 147!1 §1265. Decree for petition and dower, and appointing commissioners to assign dower and make partition in same case 14Sfl §1266. Of exceptions to a deposition as an entirety 1481 §1207. Of exceptions to certain parts of a deposition 14S-! §1268. Of injunction bond U.'io §1269. Of bond of injunction to judgment at law 14S4 §1270. Of order removing cause to other county because improper for Judge to preside at the trial 1484 TABLE OF CONTENTS VOLUilE II liii §1271. Order awarding injunction restraining and inhibiting laborers and members of labor organizations from molesting the plaintifl' in the conduct of his business 1485 §1272. Form of petition for an attachment for disobeying an in- junction 1487 §1273. Form of order to show why an attachment should not issue for disobeying an injunction order 14SS §1274. Form of an answer to a rule to show cause why a party should not be attached for contempt 14.S'.i §1275. Form of order dismissing suit agreed 1401 §1276. Form of an order requiring plaintifl' to elect whether he will proceed at law or in equity 1491 §1277. Form of instrument making election to proceed in equity when action at law and suit in equity pending for same cause. .1492 §1278. Short form of decree on an issue out of chancery entered upon the verdict of the jury 1492 §1279. Caption of depositions, examination of witnesses, adjournment. and attestation 1403 §1280. Form of affidavit authorizing an order of publication against a corporation which has failed to comply with chapter 54. sec. 24, of the Code of West Virginia 1494 §1281. Form of order of publication where corporation has failed to comply with section 24 of chapter 54, Code of West Vir- ginia 1495 §1282. Form of order made in vacation directing the payment of ali- mony, pendente lite, and awarding an injunction restraining the husband from incumbering or disposing of his property . , 1496 ^1283. Decree for specific performance, striking out one plea in abate- ment, making up issue on another, and overruling plea in abatement, upon a submission of the issue to the court. . . .1498 §1284. Order of the Circuit Court appointing receiver after an appeal to the Supreme Court of Appeals, and during the pendency of such case on appeal ■ 15U1 INFANTS AND INSANE PEESONS. 911 CHAPTER XXXIII. INFANTS AND INSANE PERSONS. Sec. 811. The protection of infants and insane persons by courts of equity. Sec. 812. The sale of property belonging to persons under disability. Sec. 813. As to the leasing or incumbering of the estate of persons un- der disability. Sec. 814. As to the renewal of leases on behalf of persons under dis- ability. Sec. 815. Suits by infants and insane persons to set aside conveyances and transfers of property. Sec. 816. Who may sell, lease, or incumber estate of infants and insane persons. Sec. 817. The necessary parties to a proceeding to sell, lease or en- cumber the estate of persons under disability. Sec. 818. The bill or petition in a proceeding to sell, lease or encumber the estate of persons under disability. , Sec. 819. What property of persons under disability may be sold under the statute. Sec. 820. As to the necessity of a guardian ad litem in a suit to sell an infant's or insane person's lands. Sec. 821. Who should be appointed a. guardian ad litem. Sec. 822. The duties of a guardian ad litem. Sec. 823. The powers of a guardian ad litem. See. 824. The compensation of a guardian ad litem Sec. 825. Summary proceeding for the sale, lease or mortgage of the estate of an infant or insane person. See. 826. The decree to sell the estate of persons under disability or those interested in a trust. I^ec. 827. The investment of the proceeds of sale of the infant's or other person's estate. Sec. 828. The bond for the application of the proceeds of the sale or lease of lands. Sec. 829. The effect of sale upon the status of the estate of an infant or insane person. Sec. 830. Petition to have dower or curtesy of insane wife or husband released. Sec. 831. The procedure tx) release dower or curtesy of insane wife or husband. 912 EQUITY PROCEDURE. §811. The protection of infants and insane persons by courts of equity. Courts of equity, as in the exercise of its jurisdiction in other cases deals not only with the property rights and interests of infants and insane persons, but also in some instances for the protection of their persons.^ But, though this is true, in nearly all the instances in the more modern practice of a court of equity, the management, control and disposition of their prop- erty rights and interests have been involved, so that what is said here will relate to that matter, and more especially as to the lease or sale of the property of such persons by the courts under the provisions of the various statutes regulating this matter.^ §812. The sale of property belonging to persons under disability. In the Virginias it is provided by statute that if the guardian of any minor, or the committee of any insane person, think that the interests of the ward or insane person will be promoted by a sale of his estate, or if the trustee of any estate, or any person interested in any estate in trust, think that the interest of those by whom the estate is held will be promoted by a sale thereof, such sale shall be made, if it appear proper to do so, upon bill filed in the Circuit Court " of the county in which the estate pro- posed to be sold or some part thereof may be.* And in West Virginia, as we have stated,^ there may be a sale of the estate of 1 Adams' Equity, (8th ed.), 278, friend, she was declared a ward of 281, note. the court, and all conversation. in- Such court has a general supervis- tereourse, or correspondence between ory power over the persons and es- her and the defendant to whom she tates of infants; and when any part had been married was forbidden un- of an infant's estate is in litigation der pain of contempt. Aymer vs. there, it is under the immediate Eoflf, 3 Johns. Ch. 49. guardianship and protection of the = Hinchman vs. Ballard. 7 W. Va. court. Westbrook vs. Gomstock, 152. Walk. Ch. 314; People vs. Wilcox, a in Tirr/inici, the Circuit Court 22 Barb. 178. Where an infant un- or Corporation Court. der twelve years of age was married, * Code (W. Va.), Ch. 83, sec. 2; and immediately thereafter declared Code (Va.), 1887, sec. 2616. her dissent to the marriage, upon 5 Ante, sec. 235. application to chancery by her next INFANTS AND INSANE PERSONS. 913 an infant or insane person in a summary proceeding by petition to the Circuit Court of the county wherein the estate or some part thereof may be.*^ §813. As to the leasing or Incumbering of the estate of persons under disability. In West Virginia the estates of infants and insane persons, and estates in trust may be leased and encumbered by trust, upon bill in equity in like manner as a sale thereof may be made ; ' and the same things may be done as to such estates upon petition to the Circuit Court by summary proceedings.* And in Virginia there may be in like manner, an exchange of real estate for other real estate upon bill in equity filed for such purpose.^ §814. As to the renewal of leases on behalf of persons under dis- ability. It is expressly provided by statute- in the Virginias that where an infant, insane person, or married woman (if -the prop- erty be not her separate estate), is entitled to or bound to renew any lease, any person on his or her behalf, or any person inter- ested, may apply by petition or motion in a summary way, to the Circuit Court of the county in which the land leased or some part thereof may lie, and by the order of said court, any person appointed by it may, from time to time, surrender or accept a surrender of such lease, or take or make a new leas& of the same premises for such term, and with such provisions as the court shall direct. Such reasonable sums as may be incurred to re- new any such lease, shall, with interest thereon, be paid out of the profits of the leasehold premises and be a charge thereon until such payment.^" 6Code (W. Va.), Ch. 83, sec. 12. sPollard, Supp. Code (Va.), sec. 7 Code (W. Va.), Ch. 83, sec. 2; 2616, p. 278. Code (Va.), 1887, aec. 2616. lo Code (W. Va.), Ch. 83, sec. 1; sAnte, sec. 235. Code (Va.), 1887, sec. 2615. 914 EQUITY PEOCEDUEE. §815. Suits by infants and insane persons to set aside convey- ances and transfers of property. Following strictly the plan of this treatise, the consideration of this matter belongs to another part thereof. ^^ Ordinarily, as we have seen,^^ he who asks equity must do equity/' That is if a party would relieve himself of the consequences of an act resulting from fraud or mistake, or other unconscionable trans- action, he must aver in his bill a readiness and ability to place the defendant in statu quo in order to obtain the- relief which he seeks/* But there is an exception to this rule in the case of persons under the disability of infancy or insanity/^ So that when an insane person or his estate is concerned in the matter of setting aside a conveyance or rescinding a contract, where the opposite party knew of the disability, no restitution of the con- sideration is required and, of course,- no averment of an ability or readiness to refund what has been received by such insane person need be made in the bill/" If suit be brought to avoid a conveyance or other transaction of an infant no restitution is required if the infant has parted with the consideration, but if not, restitution must be made or the bill can not be sustained/^ §816. Who may sell, lease or incumber estate of infants and in- sane persons. While the statute authorizing a sale, lease or mortgage of the estate of an infant or insane person is remedial and is therefore construed liberally,^^ still it will not be extended by construction 11 Ante, Ch. III. i^ See extended note to see. 907, i2Amte, sec. 119a. form No. 86. 13 Hogg, Eq. Princ. sec. 60. is Vaughn vs. Jones. 23 Gratt. at i4 7dem. p. 456; Troth vs. Robertson, 78 Va. 15 Idem. 46. le Physio Med. College vs. Wilkin- As this statute is construed liber- son, 108 Ind. 314, 9 N. B. Rep. 167; ally, the word " estate " is held to Northwestern, etc. Co. vs. Blanken- be used in its most extensive sense, ship, 94 Ind. 535, 48 Am. Rep. 185; and as meaning the property, or Crawford vs. Scovell, 94 Pa. St. 48, thing, given by the deed or will, and 39 Am. Rep. 768 ; Lincoln vs. Buck- not merely the interest therein ; so master, 32 Vt. 652; Henry vs. Fin, as to promote the policy of the legis- 23 Ark. 417. lature, which was designed to re- INFANTS AND INSANE PEESONS. 915 SO as to permit any person else to come into a court of equity and make sale of such estate than the persons mentioned in the statute ; namely, the guardian of an infant, committee of insane person, the trustee of, or a person interested in^ an estate held in trust/" Thus, a widow cannot merely in right of her dower, file a bill to sell infants' lands, and get money from its sale in lieu of dower in kind. A decree of sale in such a case is abso- lutely void. Kor, as we have seen,^° can a ward maintain such a bill in his own name by his next friend.'^ And the only way in which these proper parties may sell, lease or mortgage such an estate is in the manner prescribed by the statute. ^^ §817. The necessary parties to a proceeding to sell, lease or en- cumber the estate of persons under disability. The statute authorizing a sale, lease or encumbrance of the estate of infants and othei" persons specifically mentioned there- in, expressly provides that the infant or insane person, or the beneficiaries in the trust (when not plaintiffs), and all others interested, shall be made defendants to the proceeding. °^ And it is further provided by the Virginia statute that where there is an infant or insane defendant, all those who would be his heirs or distributees if he were dead, shall also be made par- ties.^* The only question that can arise under this statute is as to the persons who are " interested " within the meaning of that word as used in the law. Au examination of the decisions made under and construing this statute and others of similar import shows that the same meaning is attached to this word which is given to it in determining who are necessary parties to an ordinary suit in equity.^'' Thus, under this statute, in a move those fetters upon' alienation Oil Co. vs. Mclntyre, 44 \Y. Va. vphich contingent limitations more 296, 28 S. E. Rep. 922; Pierce vs. or less tend to fasten. Troth vs. Triggs, 10 Leigh 406; Faulkner vs. Robertson, supra. Davis. 18 Gratt. 662 et seq. i^Hoback vs. Miller, 44 W. Va. 23 Code (W. Va.), Ch. 8.3, sec. 635,29 S E. Rep. 1014. 2; Code (Va.), 1887, sec. 2616. 20 Ante. see. 66. 2* Code (Va.), 1887, sec. 2616. 2iHoback vs. Miller, supra. 25 Cooper vs. Hepburn^ 15 Gratt. 22 Wilson vs. Youst, 43 W. Va. 551; Faulkner vs. Davis, 18 Gratt. 826, 28 S. E. Rep. 781 ; South Penn at p. 682 ; Quesenberry vs. Barbour, 916 EQUITY PHOCBDUEE. proceeding by a committee of an insane person to sell the oil and gas underlying a tract of land, the co-tenants of such person are not necessary or proper parties to such proceeding.^* So, as in Cooper vs. Hepburn,^' where 11. devises real estate to M. during his natiiral life, and to his children if he should leave lawful issue; if not, then at his decease to H's grandchildren. At the death of H., M. is not married, but he afterwards mar- ries and has lawful children. Upon the birth of the first child of M., the remainder was vested in the child, subject to open and let in the afterborn children as they severally came into being ; and the remainder in favor of the grandchildren was de- feated. And therefore the grandchildren were not necessary parties to a suit by the guardian of M.'s children for a sale of the real estate."^ §818. The bill or petition in a proceeding to sell, lease or en- cumber the estate of persons under disability. In the Virginias the estate of persons under disability may be sold on bill in equity, or in the state of Virginia the exchange of real estate for other real estate, may be made ; "" and in West Virginia in the same manner such estate may be leased or en- cumbered.'" The bill when filed for any of the purposes here authorized, must plainly state all the estate, real or personal, belonging to the infant or insane person, and all the facts calcu- lated to show the propriety of the sale or exchange of the es- tate ; '^ and it must be verified by the oath of the plaintiff.'^ The filing of the bill, or petition if the proceeding be in a sum- 31 Gratt. 491; Fritseh vs. Klausing, so Code (\V. Va.), Ch. 83, sec. 2. 13 S. W. Rep. 241 ; South Penn Oil There is no statute in Virginia Co. vs. Melntyre, 44 W. Va. 296, authorizing the lease or encumb- 28 S. E. Rep. 922. ranee of the estate of persons under 26 South Penn Oil Co. vs. Mcln- disability as in West Virginia. And tyre, supra. in West Virginia there is no stat- 27 15 Gratt. 551. ute authorizing an exchange of real 2s See Faulkner vs. Davis, 18 estate as in Virginia. Gratt. 683, et seq; ante, sec. 95. si Code (W. Va.), Ch. 83, sec. 2; 29 Code (W. Va.), Ch. 83, sec. 2; Code (Va.), 1887, sec. 2616, as Code (Va.), 1887, sec. 2616; as amended in 1887-8, Pollard, Supp. t mended in 1887-8, Pollard, Supp. p. 278. Code, p. 278. ^- Idem. INFANTS AND INSANE PERSONS. 917 mary way, as it may be in West Virginia, is essential to the jurisdiction of the court in such a case/' and there must be an averment of every fact necessary to confer jurisdiction for the object or purpose for which the proceeding is instituted/* The character or capacity in which the plaintiff brings the bill should be alleged/'* and it is usual to designate the parties in interest so as to show that all necessary parties are before the court.^" The description of the property with reference to which the bill or petition is filed should be such as to enable the same to be identified.'^ There should also be alleged in the bill or petition the infant's or insane person's interest in the estate/^ the condition thereof/" and the facts showing the propriety of making sale.*" The bill, or petition, as the case may be, should also state that, in the opinion of the plaintiff, the interest of the ward or insane person will be promoted by a sale, lease, or incumbrance of the estate, as the case may be." §819. What property of persons under disability may be sold under the statute. The language of the statute as to the property that may be sold is " estates, or estate in which he " (the minor or insane 33 Tracy vs. Roberts, 88 Me. 310, 32 Pac. Rep. 324, 33 Am. St. Rep. 34 Atl. Rep. 68, 51 Am. St. Rep. 190; Wilson vs. Hastings, 66 Cal. 394; Fitch vs. Miller, 20 Cal. 352; 24, 5 Pac. Rep. 217; Huberman vs. Richardson vs. Butler, 82 Cal. 174, Evans, 46 Neb. 784, 65 N. W. Rep. 23 Pac. Rep. 9, 16 Am. St. Rep. 1045. 101. 38 Pitch vs. Miller, supra; Worth- 34 Fitch vs. Miller, supra; Smith ington vs. Duncan, 41 Ind. 515. vs. Biscailuz, 83 Cal, 346, 21 Pac. 39 Fitch vs. Miller, supra; Smith Rep. 15, 23 Id. 314; Wilson vs. vs. Biscailuz, supra. Holt, 83 Ala. 528, 3 South. Rep. 40 Ex. p. Jewett, 17 Ala. 410; 321; Loyd vs. Malone, 23 111. 43. Fitch vs. Miller, supra; Bunce vs. 35 Cooper vs. Hepburn, 15 Gratt. Bunce, 59 Iowa 533, 13 N. W. Rep. 551. 705; Fowler vs. Lewis, 36 W. Va. 36 Lancaster vs. Barton, 92 Va. 112, 14 S. E. Rep. 447. 615, 24 S. E. Rep. 251; Erwin vs. "Code (W. Va.), Ch. 83, sec. 2; Gainer, 109 Ind. 488, 9 N. E. Rep. Code (Va.), 1887, sec. 2616, as 417; Ryan vs. Manning, 5 Jones L. amended in 1887-8. Pollard's Supp. (N. C.) 334. p. 278; MeKee vs. Hann, 9 Dana 37 Doe vs. Jackson, 51 Ala. 514; (Ky.), 526; VowleSs vs. Buekman, Gilchrist vs. Shackelford, 72 Ala. 6 Dana (Ky.) 466; Greenbavm vs. 7; Scarf vs. Aldrich, 97 Cal. 360, Greenbaum, 81 111. 367. 918 EQUITY PKOCEDUEE. person) "is interested with others, infants or adults; . . . and whether the estate be absolute or limited, and whether there be or be not limited thereon any other estate, vested or contingent." This statute comprehends all classes of property without reference to the degree of interest.*" Thus, under it an estate in remainder and property or estate held under an executory devise may be sold.*" Petroleum oil and gas underlying the surface of land constitute a part of the realty, and may be sold under this statute when held by any of the class of persons mentioned in such statute.** And under the law authorizing the sale of the lands of infants, the power of sale may be exercised by a court of equity of lands devised by will, although it may appear from the will that it was the testator's wish and intention, at the time of making the will, that the land should not be sold ; provided, the sale thereof is not absolutely or expressly prohibited by the will.*° §820. As to the necessity of a guardian ad litem in a suit to sell an infant's or insane person's lands. In a suit or proceeding to sell the estate of an infant or insane person, as in all other cases in which an infant is a defendant,*^ there must be a guardian ad litem appointed to such infant or insane person " who, as well as the infant (if over fourteen years of age), shall answer the bill on oath in proper person.** And if a decree be entered in a suit to sell the lands of infants, a decree entered directing a sale of such lands in the absence of the appointment of such guardian ad litem and an answer filed by him, such decree will be re- *2 Faulkner vs. Davis, 18 Gratt. ^5 Hogg's Eq. Prinep. sec. 124, p. 668; Talley vs. Starke, 6 Gratt. 207. 339; Wilson vs. Youst, 43 W. Va. *^ Ante, see. 401. 826, 28 S. E. Eep. 781; South Perni « Code (W. Va.), Ch. 33, sec. 3; Oil Co. vs. Mclntyre, 44 W. Va. 296, Code (Va.), 1887. sec. 2618; Hull 28 S. E. Rep. 922. vs. Hull, 26 W. Va. 1 ; Talley vs. 43 Faulkner vs. Davis, supra; Tal- Starke, supra. ley vs. Starke, supra. 48 Code (W. Va.), Ch. 83, sec. ■"Wilson vs. Youst, supra; South 3; Code(ya.), 1887, sec. 2618. Penn Oil Co. vs. Mclntyre, supra. INFANTS AND INSANE PEESONS. 919 versed, ana if the property has been sold the title of the pur- chaser will fall upon the reversal of such decree of sale.*'' The answer must be actually filed. One found among the papers of the cause without an order filing it is not sufiicient.^" It is provided by statute that no deposition shall be read in the suit against any infant or insane party, except by leave of the court, unless it be taken in the presence of the guardian ad lit&m or upon interrogatories agreed upon by him.^' §821. Who should be appointed a guardian ad litem. The prime consideration actuating the court in the selection of a suitable person to act as guardian ad litem, is the due protection of the rights and interests of the infant. '^^ In Vir- ginia it is expressly provided by statute that some discreet and competent attorney at law shall be appointed as guardian ad litem; or if no such attorney be found willing to act, some other discreet and proper person shall be appointed.^'' If the person thus designated cannot be found, the court will be governed by the usual rule of practice obtaining in a court of equity in the absence of statute relating to the appointment or selection of a guardian ad litem. Under this rule the court will usually appoint his general or testamentary guardian if there be one,^* or, if for any reason such guardian be not ap pointed, the nearest relative of the infant or insane person not interested in the matter in controversy will generally be se- lected,^^ though a stranger may be appointed.^" Where neither the general guardian nor nearest relative is appointed, the court 49 Hull vs. Hull, supra; Ewing =* Patterson vs. Pultman, 104 111. vs. Ferguson, 33 Gratt. 548. 80; Kesler vs. Penniger, 59 HI. 134; so Ewing vs. Ferguson, supra. Scott vs. Winningham, 79 6a. 492, 01 Code (W. Va.), Ch. 83, sec. 4; 4 S. E. Rep. 390. Code (Va.), 1887, sec. 2619. ss Gfrant vs. Sehoonover, supra; See Brown vs. Putney, 90 Va. 447, Rhoads vs.-Rhoads, 43 111. 239; U. 18 S. E. Rep. 883. S. Bank vs. Ritchie, 8 Pet. (U. S.) 52 Grant vs. Sehoonover, 9 Paige 128; 1 Daniell, Ch. PI. and Pr. (6th Ch. 255, 4 Law. ed. 690, 37 Am. Am. ed.) 161 and note. Dec. 393. ^^ Rhoads vs. Rhoads, supra; U. 53 Code (Va.), 1887, sec. 3255. S, Bank vs. Ritchie, supra. 920 EQUITY niOCEDUKE. will appoint an attorney at law.°' And the person appointed should be one without any interests adverse to those of the infant in the subject matter of suit.'*' A co-defendant, having no adverse interest may be a guardian ad litem.^^ So, where the infant is a married woman it is usual to appoint her hus- band.^" §822. The duties of a guardian ad litem. The whole duty of a guardian ad litem is to defend the suit on behalf of the infant or insane person, as the case may be,"^ and to do so earnestly and rigorously,"^ not merely in a per- functory manner by filing a formal answer in the cause and doing nothing more.*^ He should make a bona fide examina- tion into the facts and merits of the cause, so as to fully protect the interests of the infant in the suit."* In Yirginia the law expressly declares that every guardian ad litem shall faithfully represent the interest or estate of the infant or insane person for whom he is appointed."" §823. The powers of a guardian ad litem. A guardian ad litem, may, when necessary, employ counsel to aid in the defense of an infant or .insane person,"" even though the guardian ad litem, be himself a practicing attorney."' In the conduct of the cause he has the power to act for the infant as to all the issues arising in the suit, whether it be the direct issue involved, or one collateral to the main issue, but which must necessarily be determined."^ Thus, where, in an action 5T Carter vs. Montgomery, 2 Tenn. 62Enos vs. Capps, 12 111. 255; Ch. 455; Bennett vs. Whseler, 1 Ir. Rhoads vs. Rhoads, supra. Eq. R. 16. «3 Pi'nchback vs. Graves, 42 Ark. 5s Matter of Frits, 2 Paige Ch. 227; Allen vs. McGee, 27 Ind. App. 374, 2 Law. ed. 950 ; Ralston vs. La- — , 60 N. E. Rep. 46(J. hee, 8 Iowa 17, 74 Am. Dec. 291; «* Allen vs. McGee, supra. Estes vs. Bridgforth, 114 Ala. 221, «» Code (Va.), 1887, sec. 3255. 21 South Rep. 512. «o Richardson vs. Tyson, 110 Wis. 59 1 Daniell, Ch. PI. and Pr. (6th 572, 86 N. W. Rep. 250. Am. ed. ) 162. o' Richardson vs. Tyson, supra. eoldem, 163. es Pyott vs. Pyott, 90 111. App. 01 1 Daniell, Ch. PI. and Pr. (6th 210. Am. ed.) 163. INFANTS AND INSANE PERSONS. 921 by a wife against her husband for separate maintenance, it was suggested that the marriage was void because of the hus- band's insanity at the time it was contracted, the court was not required to proceed with an inquisition of insanity to determine such question, and appoint a conservator as a prerequisite to the right of the hiisband to defend the suit by a duly appointed guardian ad litem before proceeding with the trial of the main action, but was entitled to appoint a guardian ad litem, and determine the issues of insanity as one of the issues in the case."^ The g-uardian ad litem, can make no binding admissions adverse to the infant ; ™ nor can he waive any of the infant's rights ; ^^ nor can he consent to the entry of a decree that is prejudicial to the interests of the infants.'" §824. The compensation of a guardian ad litem. It is provided by statute, as we have already shovsTi,'^ that a guardian ad litem shall be allowed a reasonable compensation, which must be paid by the party on whose motion he was appointed.'* §825. Summary proceedings for the sale, lease or mortgage of the estate of an infant or insane person. - In West Virginia a summary proceeding is authorized by statute, for the sale, lease or mortgage of the estate of an infant or insane person, by petition upon ten days' notice to all of the defendants to such petition. The petition, as to its parties, allegations and verification by oath, must in all respects conform to a bill in equity.'^ In fact, the procedure upon the petition is substantially the same as that which must be had upon a bill, except that the bill, of course, is filed at rules, and is heard upon depositions duly taken and filed in the cause, while the 69 Idem. ''^ Ante, sec. 401. 70 Walton vs. Coulson, 1 McLean, ft Code (W. Va.), Ch. 125, sec. 120. 13. '1 Cartwright vs. Wise, 14 111. As to the statute of Virginia as to 417; Quigley vs. Roberts, 44 Id. the compensation of a guardian ad 503. litem, vide ante, sec. 401, note 3. 72Dangerfield vs. Smith, 83 Va. 75 See ante, sec. 818; Code (W. 81, 1 S. E. Rep. 599. Va.), Ch. 83, sec. 12. 922 EQUITY PEOCEDUEE. petition is filed in open court, and may be heard, as clearly indicated by the statute, upon evidence adduced ore tenusJ^ The court shall appoint a guardian ad litem to the minor or insane person who must be present at the hearing of such petition.'''' §826. The decree to sell the estate of persons under disability or those interested in a trust. If the proceedings to sell the estate of persons under the disability of infancy or insanity or who are interested in a trust be by bill in equity, and it be clearly shown, independently of any admissions in the answers, that the interest of the infant, insane person, or beneficiaries in the trust, as the case may be, will be promoted, and the court be of the opinion that the rights of no person will be violated thereby, it may decree that the said estate be sold, leased, mortgaged or encumbered by a deed of trust, or any part thereof, on such conditions and upon such terms as to the court shall seem to the best interests of the said infant, insane person, or beheficiary in the trust, as the case may be, and in case the sale of said land is decreed, the purchaser when the sale is on credit, shall be required to give ample security, and if the sale be of real estate, a lien shall be retained thereon to secure the payment of the purchase moneyJ^ The statute of West Virginia expressly empowers the court to direct the sale upon such conditions and terms as to it shall seem to the best interests of the infant or other owner of the estate. This authority the court possesses in the absence of such express provision of this particular stat- ute. Hence the court may decree that the sale be private and not by way of public auction.^^ The land should be sold free Ts Hogg's Eq. Princp. sec. 124, p. provision, not found in tlie West 210. Virginia statute, authorizing an ex- "Code (W. Va.), Ch. 83, see. 13. cliange of lands. See Code (Va.), 78 Code {W. Va.), Cli. 83, see. 5; 1887, sec. 2620. as amended in Code (Va.), 1887, see. 2620. Tliere 1887-8, Pollard's Supp. p. 27!). is omitted from the Virginia statute '» Palmer vs. Garland, 81 Va. 444. the power to lease or mortgage, and In this ease H., committee of G., the terms upon which the sale a female lunatic, institutes ,i suit shall be made, but it contains the under Code 1873, Ch. 124, to sell her INFAN-TS AND INSANE PEKSONS. 923 of all encumbrances so tliat the title of the purchaser will be good.'" §827. The investment of the proceeds of sale of the infant's or other person's estate. When sale is made of the estate of an infant, insane person, or one interested in tnust property, the law prescribes that the proceeds thereof shall be invested under the direction of the court, for the use and benefit of the persons entitled to the estate, and in case of a trust estate, subject to the uses, limita- tions and conditions, contained in the writing creating the trust. But into whosesoever hands the said proceeds may be placed, the court shall take ample security, and from time to time require additional security, if necessary, and make any other proper orders for the faithful application of the fund, and for the management and preservation of any property, or securities in which the same may be invested, and for the protection of the rights of all the persons interested therein, whether such rights he vested or contingent." The court may direct the proceeds of the sale of an infant's estate to be paid to his guardian,^^ and contingent estate in lands, and con- bidding, and, therefore, no competi- dueta it in the proper manner, and tion in bids can be hoped for, nego- against the proper parties, and ad- tiations must take the place of a duces the proper evidence, in every public 'sale, to prevent the sacrifice respect in accordance with the re- of the property sold. The evidence quirements of the statute, and in his in tie record shows that a fair re- bill he presents the bids of certain suit has been reached in this case parties who already owned other and it would be mistaken kindness contingent interests in the same -to reject it and take the hazard of a laijds. The court, deeming that the precarious auction." interests of the lunatic will be pro- As to the statute applying to de- moted and the rights of no one will crees to be entered upon a petition be violated by the sale of her said in a summary proceeding in West proposed sales of the estate, decrees Virginia for the sale, lease or mort- that the said bids, and the said es- gage of the estate of persons under tate of the lunatic therein be con- disability, vide Code (W. Va.), Ch. veyed to the said bidders. 83, sec. 14. Held. The sale is lawful. so pjerce vs. Triggs, 10 Leigh 406. In the course of his opinion, si Code (W. Va.), Ch. 83, sec. 7; Fauntleroy, J., says: "When, as in Code (Va.), 1887, sec. 2622. this case, the part owners are the 82 Reed vs. Hedges, 16 W. Va. 167. only persons "who are interested in 924 EQUITY PEOCEDUEE. if sucn guardian do not give the additional bond contemplated by the statute to secure the proceeds of such sale, the guardian and his security in his official bond will be liable for the same on such bond/' But where the additional bond to secure the proceeds of the sale of the ward's estate is given, it is primarily liable for such proceeds/* §828. The bond for the application of the proceeds of the sale or lease of lands. It is provided by statute in West Virginia, that in case a sale or lease of the estate of a party under the disability of infancy or insanity be made, the guardian or committee shall in open court enter into bond, with approved security, in a pen- alty equal to double the value of the estate to be sold, conditioned for the faithful application of the proceeds of sale or lease. And in case of mortgage or deed of trust the said guardian or committee shall enter into bond with approved security in a penalty equal to double the amount of any moneys which may come into his hands from the mortgaging or encumbrancing the same by deed of trust, conditioned for the faithful applica- tion of said moneys. And in either case such bonds shall be payable to the State, and the court may thereafter order a new bond, with other security to be given if deemed necessary.*^ If the bond contemplated by this statute be given, the sureties on the general bond of the guardian will not be liable for the proceeds of sale,*'' and it seems that they will not be liable, even if such bond be not given.''' §829. The effect of sale upon the status of the estate of an infant or insane person. Inasmuch as one of the leading objects in conferring a power of sale upon the guardian of an infant or the committee of an insane person is the promotion of the interest of such infant or insane person, without violating the rights of any person, it is ssReed vs. Hedges, supra. S6 Kester vs. Hill, 42 W. Va. 611, 84 Findley vs. Findley, 42 W. Va. 26 S. E. Rep. 376. 372, 26 S. E. Rep. 433. " idem. 85 Code (W. Va.), Ch. 83, sec. 15. INFANTS AND INSANE PERSONS. 925 the policy of the law to preserve the status of all real estate that may be sold in such a ease, so that the proceeds of sale will pass to those who would have been entitled to the land if it had not been sold.*^ The effect of the sale does not operate a conversion of the realty into personalty until the infant attains his majority and the insane person is restored to his sanity."''* §830. Petition to have dower or curtesy of insane wife or hus- band released. The law provides that if the husband of an insane wife wish to sell real estate, and to have her right of dower therein released to the purchaser, or if the wife of an insane husband wish to sell her real estate, and to have his right of curtesy therein released to the purchaser, he or she may petition for that ss Code (W. Va.), Ch. 83, sec. 11; Code (Va.), 1887, see. 2626. 8» Vaughan vs. Jones, 23 Gratt. 4-i4; Turner vs. Dawson, 80 Va. 841 ; Findley vs. Findley, 42 W. Va. 372; 26 S. E. Rep. 433. In Vaughan vs. Jones, Anderson, J., in the course of his opinion, says ; " It is an established prin- ciple of courts of equity, says Judge Lomax, not to f>uffer the real es- tate of infants to be changed into personal, nor personal into real es- tate. Upon this nrinciple the legis- lature of this State has directed, in the sale of infants' real estate under the authority of Courts of Chancery, that if the infant dies un- der twenty-one years, the proceeds of the sale shall be considered as real estate, and shall pass to such person as would have been entitled if it had not been sold. 1 Lomax Dig. top p. 239, marg. 202. This is substantially the purport -of sec- tion 21 of chapter 108 of the R. C. of 1S19. The sale of infants' real es- tate by the Superior Court of Chan- cerv, being authorized by previous sections of the act, what was tlie design of this 21st section? It seems to have been to guard against any change being made in the legal incidents and qualities attached to real estate, by the sale which had been authorized by the previous sections, both as it respects the rights and interests of the infant and of those to whom the real es- tate would descend in the event of his death intestate, under twenty- one years of age. And, therefore, it is provided, that the prooeeds of the sale shall be considered as real estate, and at the death of the in- fant intestate, under twenty-one years of age, shall pass as real es- tate to those who would have been entitled to the land if it had not been sold. And the sale is only au- thorized, as appears from a, previou.s section, provided their rights should not be violated. And without adopt- ing the provision aforesaid in the 21st section, or the equitable prin- ciple of Courts of Chancery, a sale could not be made within that re- striction." 926 EQUITY PEOCEDTIEB. purpose the Circuit Court of the county in which such estate, or some part thereof, is. And if it appear to the court, to be proper, an order may be made for the execution of such a release, by a commissioner to be appointed by the court for the purpose ; which release shall be effectual to pass the said right of dower or of curtesy to the purchaser. But the court may make such order as, in its opinion may be proper to secure to her and to him the same interest in the purchase money and the income thereof, that he or she would have had in the real estate and the income thereof, if it had not been sold ; or at the discretion of the court, to secure to her or to him, out of the purchase money, such sum in gross as, in the court's opinion, may be sufficient to compensate her or him, for her right of dower or his right of curtesy.*" §831. The procedure to release dower or curtesy of insane wife or husband. Inasmuch as dower is a pure common law right,"^ a common law estate of the wife,"' and is neither equitable nor statutory separate property,"^ and cannot be defeated or barred at the common law, except in a few instances not material to be noticed here,"* and only by statute in strict compliance with the pro- visions and requirements thereof,"^ it necessarily follows that tbe dower of an insane wife can only be released or barred in the manner prescribed by statute as shown in the next preceding section. The proceeding by petition under this stat- ute *^ is not ex parte, and the wife or husband whose rights are 80 Code (W. Va.), Ch. 83, sec. 10; 50 Ind. 186; Bressler vs. Kent, 61 Code (Va.), 1887, sec. 2625, as 111. 426, 14 Am. Rep. 67. amended in 1895-6, Pollard's Supp. «* 1 Washburn on Real Property p. 279. (4th ed.) 242, 244-270. siHoback vs. Miller, 44 W. Va. as Nicoll vs. Ogden, 81 Am. Dec. 6.35, 29 S. E. Rep. 1014. 311; Grove vs. Todd, 41 Md. 633, 92 Martin vs. Martin, 22 Ala. 86, 20 Am. Rep. 76; Blair vs. Sayre, 105. 29 W. Va. 604, 2 S. E. Rep. 97; 93 Morrison vs. Thistle, 67 Mo. McMullen vs. Eajren, 21 W. Va. 233. 596, 599; Townsend vs. Brown, 16 96 Code (W. Va.). Ch. 83, sec. S. C. 91; McCormick vs. Hunter, 10; Code (Va.), 1887, sec. 2625, as INFANTS AND INSANE PKESONS. 92Y to be affected must be made a party thereto, and have reasonable notice of the time and the place where the petition will be filed. °^ If it appear to the court that the party is insane, the court may hear evidence or refer the matter to a commissioner, to inquire into and report as to the status of the property, whether the wife or the husband, as the case may be, has a contingent right of dower or curtesy therein, the value thereof, and what sum should be set apart out of the proceeds of the sale in lieu of such contingent right of dower or curtesy therein."* When these matters have been ascertained and adjudicated, the court will authorize a commissioner to execute a deed conveying and relinquishing such right of dower or curtesy in such prop- erty."' amended in 1895-6, Pollard's Supp. »9 Hess vs. Gale, supra. The prin- 279. eiple, as laid down in the text, as to 9'? Hess vs. Gale, 93 Va. 467, 25 S. the procedure under this section, is E. Rep. 533. deduced from the statute itself and 98 Hess vs. Gale, supra. the case just cited. 928 EQUITY PEOCEDUEE. CHAPTER XXXIV. MISCELLANEOUS MATTERS OF PROCEDURE. Sec. 832. Motion defined. , Sec. 833. Who may make a motion. Sec. 834. Motion or otlier proceeding by a, party in contempt. See. 835. Against whom a motion may be made. Sec. 836. Motions as matters of course. Sec. 837. As to special motions ex parte. Sec. 838. Special motions made upon notice. See. 839. Some specific instances of special motions upon notice. Sec. 840. As to the plaintiff"s right to dismiss his bill. See. 841. Dismissal of the bill as to part of the defendants. Sec. 842. Dismissal of the bill contrary to stipulation. See. 843. Dismissal of the bill " without prejudice." Sec. 844. Dismissal of the bill " agreed." Sec. 845. Dismissal or discontinuance of a cause for failure to prose- cute the same. Sec. 846. Reinstatement of the cause after its dismissal. Sec. 847. Stipulations of the partiet' waiving the taking of proof. Sec. 848. Orders and decrees nunc pro tunc. Sec. 849. As to the use of affidavits in equity. Sec. 850. When affidavits cannot be used on a motion to dissolve an injunction. See. 851. When affidavits may be used on a motion to dissolve an in- junction. Sec. 852. The payment of money into court. Sec. S53. Same subject further considered. Sec. 854. The court's control pf the fund when paid over. §832. Motion defined. A motion is an application, either by a party to the proceed- ings or his counsel, not in writing,^ made to the court, or Judge thereof at chambers, or in vacation, for the purpose of obtaining 1 But by a rule of the Supreme jects of the motion. 1 Beach^ Mod. Court of the United States all mo- Eq. Pr. sec. 554,, citing Rule 6, tions to the court shall be reduced U. S. Supreme Court; Rule 21, U. S. to writing, and shall -contain a C C. A. brief statement of the facts and ob- MISCELLANEOUS ilATTEES OF PEOCEDUEE. 929 sonic rule or order of court which he deems necessary or proper in the cause, or to obtain relief in a summary manner in a matter which would otherwise operate as unjust or inequitable/' Motions are either of course or special ; and the latter are either ex parte or upon notice/ A motion cannot be used to present anything to the court that is properly the subject of a pleading, but is confined to matters which are incidental to a presentation of the cause upon its merits/ §833. Who may make a motion. A motion may be made by or on behalf of any party to the record, provided such party be not in contempt of court ; " and a person who is a quasi party to the cause, such as a claim- ant coming in under a decree, or a purch^aser at a judicial sale, may also apply to the court in this manner/ But a motion will not be entertained by a person who is not a party to the record/ 2 1 Beach, Mod. Eq. Pr. sec. 554 ; must be in the name of the party on 2 Daniell, Ch. Pr. (6th Am. Ed.) the record, and must be against such 1591; 2 Bouv. L,Dict. 199; Black's a party." Idem. Law. Diet. 791 ; Shipman Eq. PI. " A stranger having acquired an 164. equitable right to the benefit of an 3 Idem. execution, or to the property upon * Shipman Eq. PI. 165, citing 2 which it is levied, will generally Daniell, Ch. PI. and Pr. (6th Am. have authority to sue out and con- ed.) 1603, 1604; Shaft vs. Insurance duct the process, or to object to its Co., 67 N. Y. 544, 547; Jones vs. regularity; but he must do it in Roberts, 12 Sim. 189. the name of a legal party to the 5 2 Daniell, Ch. PI. and Pr. (6th process, or one who can be made so. Am. ed. ) 1591; 1 Beaeh, Mod. Eq. And his authority to use the name of Pr. sec. 555. the party to the process of a court 8 Idem.. of law, will be so far recognized ■^ Wallops vs. Scarburgh, 5 Gratt. by such court as to preclude the in- 1. tervention of such party for the pur- " A motion to quash a writ and pose of defeating it." Idem. inquisition founded on a judgment. 930 EQUITY PEOCEDDEE. §834. Motion or other proceeding by a party in contempt. Besides the punishment by fine and imprisonment to which a party subjects himself by a contempt of the process and orders of the court,* he places himself in the further predica- ment of not being in a situation to be heard in any application which he may desire to make to the court, until he has purged bis contempt and paid the costs thereof." Thus a party in contempt can not move to dissolve an injunction.^" Though a party be in contempt, he may show that the court when it made the order which he does not obey was without jurisdic- tion as to such order.^^ §835. Against whom a motion may be made. A motion may be made against any party to the record, as well also as against one who has voluntarily submitted himself to the authority of the court, as for illustration a purchaser of the subject matter of litigation during the pendency of the suit, 8 Ante, sec. 723. 9 1 Daniell, Ch. PI. and Pr. (6tli Am. Ed.) 505; 1 Beach Mod. Eq. Pr. 556; Johnson vs. Pinney, 1 Paige Ch. 646, 2 Law ed. and note; Rogers vs. Paterson, 4 Paige Ch. 450, 3 Lav^'. ed. 511 and note. " Where a, rule is made upon a person to show cause why he shall not be punished for a contempt of the court, in aiding to obstruct the execution of a decree of the court, he jJurges himself of the contempt, by answering under oath, that in what he had done he acted as coun- sel in good faith, without any de- sign, wish or expectation of commit- ting anjf contempt of, or olTering disrespect to, the court. Wells vs. Commonwealth, Si Graft. 500 The principle laid down in Wells vs. Commonwealth, that a party may purge himself of contempt by his own affidavit is disaffirmed in State vs. Harper's Ferry Co. 16 W. Va. at p. 873 in which the court in its opinion says: "Can this court properly hear evidence in these cases, or must they be heard only on the answers of the defendants to the rules issued against them? In proceedings of tliis character the weight of the authorities is in fa- vor of the admission of other evi- dence than the answers of tlie de- fendants to the rule; and in our judgment this is the proper rule. See Crooks et al. vs. The People, 16 111. 537; Case of J. V. N. Yates, 4 Johns. 373; Comonwealth vs. Dandridge, 2 Va. Cas. 408 sed vide Wells vs. Com., 21 Graft. 500. This court will therefore read the affida- vits of James M. Mason. Charles J. Faulkner and W. H. Travers, and the other affidavits filed in consider- ing these cases." 10 Fadely vs. Tomlinson, 41 W. Va. 606, 24 S. E. Rep. 645. 11 Hebb vs. County Court, 48 W. Va. 279, 37 S. E. Rep. 677. MISCELLANEOUS MATTERS OE PEOCEDUEE. 931 or one who purchases- at a judicial sale under an order or decree of the court. '^ §836. Motions as matters of course. A motion as matter of course is where by a rule or the well known practice of the dourt, the object of it is granted, and without hearing both sides. No notice of such a motion is necessary, as the court will not hear any defense to it.^^ Thus a motion made in the Clerk's office for an order of publication, or an alias summons, or a motion for leave .to file a demurrer to the bill, are clear instances of matter of course motions.^* So, as we have seen, a suit may be revived in certain instances by motion as matter of eourse.^'^ §837. As to special motions ex parte. A special motion is one which is not granted as matter of course, but only in the court's discretion and upon some proper ground to be laid for it, either by previous order, or by the pleadings in the cause, or by affidavits.^" When such a motion is made ex parte it must be supported by affidavit.^^ Thus a motion for an injunction made ex parte is usually supported by affidavit." §838. Special motions made upon notice. • It is said to be impossible to lay down any clear rule defining such motions as may be made ex parte, and distinguishing them from such as require notice.^^ When it is not clear from the law or the settled practice of the court, whether a motion may be made ex parte, it should never be made except upon due notice.^" Thus a motion to dissolve an injunction as we have 12 Smith vs. Equitable Mortgage lo 1 Beach, Mod. Eq. Pr. sec. 558 ; Co., 98 Ga. 240, 26 S. E. Eep. 487; 2 Daniell, Ch. PI. and Pr. (6th Am. Lord vs. Merroy, 79 N. C. 14; Hill Ed.) 1593 et seq. vs. Hill, 58 111. 240; Barrett vs. ^t Idem. Churchill, 18 B. Mon. (Ky.) 387; ^s Anie, see. 699; 1 Bart, Ch. Pr. Holland vs. Sleaver, 21 N. H. 386. (2nd ed.) 448. 13 1 Beach, Mod. Eq. Pr. see. 557. is 2 Daniell, Ch. PI. and Pr. (6th i*Jdem. Am. ed.) 1593. 16 Ante, sec. 190. See also Code 20 Idem. (Va.), 1887, sec. 3308. 932 EQUITY PKOCEDUEE. seen/^ may be made in term time without notice upon a case matured for hearing, but otherwise only after notice. §839. Some specific instances of special motions upon notice. It is provided by statute that upon the death or marriage of the ward in a suit by his guardian brought for the sale of his estate, such suit may be revived upon reasonable notice to all parties interested. ^^ So if a cause has been discontinued, or a non-suit entered therein, a motion to proceed to a trial will only be entertained after thirty days' notice to the defendant.'" So upon motion in term time without notice but upon a motion made in vacation after reasonable notice to the adverse party, a suit may.be removed to another Circuit Court.^* So generally, the appointment of a receiver will only be made upon notice as we have shown. ^^ A notice is also required of a motion to authorize expenditures by a receiver,^" or the issuance of certifi- cates by him.^' So where there has been any proceeding in the cause which has given the defendant a right against the plaintifE the plaintiff cannot dismiss his bill as of course and without notice.^* §840. As to the plaintiff's right to dismiss his bill. It is a general rule founded upon the English Chancery prac^ tice that a plaintiff may dismiss his bill without prejudice at any time before final decree. He has the undoubted right to control the fortunes of his own bill and dismiss it as a matter of course.^" But the dismissal should always be at his costs. ^" 2iAnfe, see. 712. 28 1 Daniell, Ch. PI. and Pr. (6th 22 Code (Va.) 2616a as amended Am. ed.) 791, 792. 1891, Pollard's Supp. p. 278. so Reilly vs. Reilly, 139 111. 183, 23 Code (W., Va.), Cli. 127, see. 28 N. E. Rep. 960; Gage vs. Bailey, 12. 119 111. 539, 9 N. E. Rep. 199; Simp- 24 Code, (W. Va.), Ch. 128, sec. 1. son vs. Brewster, 9 Paige, Ch. 24.5, In Virginia, the motion, whether 4 Law ed. 687 and note; Cummin made in term time or in vacation, vs. Bennett, 8 Paige, Ch. 79, 4 Law. must he upon twenty days' notice. ed. 352 and note; Langlois vs. Jlat- Code (1887), sees. 3315, 3316. thiessen, 155 111. 230. 40 N. E. Rep. 25 Ante, sec. 740. 496; 1 Daniell, Ch. PI. and Pr. (6th 28 Ex. p. Mitchell, 12 S. C. 86. Am. ed.), 790 and note, 1 Beach 2T State vs. Port Royal, etc. R. Co., Mod. Eq. Pr. see. 450. 45 S. C. 464, 23 S. E. Rep. 363. so Simpson vs. Brewster, supra; MISCELLANEOUS MATTERS OF PftOCEDUEE. 933 But a non-suit cannot be taken, because the law as to non-suits lias no application in equity/"^ Xor can the plaintiff dismiss his bill in a creditors' suit after an order of reference because his claim has been paid, where there are other creditors with unsatisfied demands against the defendant ; "^ nor as matter of right can he dismiss his bill when to do so would work a preju- dice to the rights and interests of the other parties.^^ And the plaintiff cannot dismiss his bill as matter of right where a de- fendant has filed a cross-bill or answer setting up a claim to afiirmative relief/* An infant plaintiff may dismiss a bill on coming of age which was filed during his minority. ^° §841. Dismissal of the bill as to part of the defendants, A plaintiff cannot voluntarily terminate a suit as to a part of the defendants, unless the suit might originally have been maintained as to the rest.'" ISTor can a suit be discontinued as to a person sued as a partner unless it affirmatively appear that he is not a member of the firm,**^ or that he is a non- resident and not served with process.'" If the suit is against persons as partners within the jurisdiction of the court and proper parties to the suit, the cause cannot be dismissed as to one without a dismissal as to all.'" But where joint parties are not served with process by reason of being out of the jurisdiction Cummin vs. Bennett, supra; Lang- vs. First Cong. Chvirch, 14 Ohio St. lois vs. Matthiessen, supra. 31; State, ex rel. Gondian vs. Rest, 31 Strang vs. Weir^ 47 S. Car. 48 La. Ann. 19. Ga. Rep. 256; Cala- 307, 2.5 S. E. Rep. 157. han vs. Hicks, 90 Fed. Rep. 539. 32Dunfee vs. Childs, 45 W. Va., 35 Anonymous, 4 Madd. 461. 155, 30 S. E. Rep. 102; Lewis vs. ss Cook vs. Phillips, 18 Tex. 31, Laidley, 39 W. Va., 422, 19 S. E. Shipman vs. Allee, 29 Tex. 17. Rep. 378; Maxwell vs. Northern 37 Gazzam vs. Bebee, 8 Port. Trust Co., 70 Minn. 334, 73 N. W. (Ala.), 49; Johnson vs. Green, 4 Rep. 173; Linsey vs. McGannon, 9 Port (Ala.) 126. W. ya. 102. " Where, on the trial, it appears 33 1 Beach, Mod. Eq. Pr. sec. 450; that a part of several defendants, Bates vs. Skidmore, 170 111. 233, sued as partners, are not such, the 48 N. E. Rep. 962. court will discontinue as to them, 34 Davis vs. Hall, 92 III. 85 ; Clark and enter judgment against the vs. Hundley, 65 Cal. 96, 3 Pac. Rep. others." Johnson vs. Green, supra. 131 ; .Jackson vs. Roan, 96 Ga. 40, 23 3a Brown vs. Belcher, 1 Wash. 9. S. E. Rep. 118; Tift vs. Keaton, 70 3o stoun vs. Roberts, 54 Iowa 678, Ga. 235, 2 S. E. Rep. 690; Miswell 7 N. W. Rep. 124. 934 EQUITY PEOCEDUEE. a discontinuance as to such parties is not a discontinuance as ta the others.'" §842. Dismissal of the bill contrary to stipulation. When the parties stipulated and made their stipulation a part of the record that a certain decree should be entered in the cause, it was held that the complainant thereby relinquished all power over the case, and an order permitting him to dismiss the bill was reversed on appeal.*^ So where a stipulation upon a bill for an account provided for an arbitration, and that the award should be the basis of a decree by the court, and should be entered as the finding of the court as to the accounts, the complainant was not allowed to dismiss his bill after the overruling of his motion to set aside the award.*^ §843. Dismissal of the bill " without prejudice." When the bill is dismissed upon motion of the plaintiff, it is the safe, usual and convenient practice to dismiss it without prejudice.*^ Where no words of qualification appear in the order of dismissal, it is presumed that the order was entered iipon its merits, and is a bar to a subsequent bill for the same cause.** §844. Dismissal of the bill " agreed." If a suit is dismissed and the order recites that it is " dis- missed agreed " this constitutes a bar to a subsequent suit for the same cause of action, upon the principle of a compromise decree on the merits, or that such a dismissal is equivalent to a retraxit at common law which is an " open, voluntary renun- 40 Adkina va. Allen, 1 Stew. i-* Borrowscale vs. Tiittle, 5 Allen, (Ala.) 130; Shields vs. Perkins, 2 377; Howth vs. Owens, 30 Fed. Rep. Bibb. (Ky.) 227; Alston vs. State 910; Lyon' vs. Perin etc. Co.. 12.5, Bank, 9 Ark. 455. U. S. 698; Ivempton vs. Burgess, 411 Beach Mod. Eq. Pr. sec. 458, 136 Mass. 192, 193; Durant vs. citing Coultas vs. Greer, 43 111. 377. Essex Co., 7 Wall. 107; see also 42 Idem, citing Ives vs. Ashelby, ante sec. 376. As to the effect of a 26 111. App. 244. dismissal of a suit under the " four- 43 Kempton vs. Burgess, 136 Mass. year rule," vide ante, sec. 376, note. 192, 193. MISCEI.LANEOUS MATTERS OF PEOCEDUEE. 935 ciation of the plaintiff's claim in court, whereby he forever loses his action." " §845. Dismissal or discontimiance of a cause for failure to prose- cute the same. It is provided by statute in the Virginias that if a party plaintiff dies and his death be suggested upon the record, and no steps be taken by the proper party or parties by motion or scire facias, at or before the second term next after that at wliich such suggestion is made to revive the suit, such suit shall be discontinued, unless good cause be sho^vn to the contrary.*' It is further provided by statute that " any court, in which is pending any case wherein for more than four years " there has 45Pethel vs. McCuUough, 49 W. Va. 520, 39 S. E. Rep. 199. In this case Brannon, J., in the course of his opinion says : " It is a bar to another suit upon the same cause, on the principle of a com- promise decree on the merits in equity, or a retraxit at common law, either of which is a bar to another suit. Hoover vs. Mitchell, 25 Gratt. 387, holds it prima facie final, at lease; but Wohlford vs. Compton, 79 Va. 333, holds it final as to all mat- ters which were actually, or might have been, litigated in the suit. In Siron vs. Ruleman's Ex'r, 3z Gratt. 223, it is so declared. In Jarboe vs. Smith, 10 B. Mon. 257, 52 Am. Dec. 541, it is held a, bar " between all parties on the original cause of ac- tion, unless there is an express stip- ulation that another suit may be Drought." Such is the great weight of authority. 1 Freem. Judgm. sec. 262; 1 Herm. Estop. 296; 1 Van Fleet, Former Adj. sec. 33. One de- cision of the United States Supreme Court denies this position. Halde- nian vs. U. S., 91 U. S. 584, 23 L. ed. 433. But U. S. vs. Parker, 120 U. S. 89, 7 Sup. Ct. 454, 30 L. ed. 601, holds the doctrine stated. So, 2 Black Judgm. sec. 706, says that it is settled law. The point is not decided in Stockton vs. Copeland, 30 W. Va. 674, 5 S. E. 143. The words " dismissed agreed " are very strong. Though the order is abbre- viated, so far as it goes it imports compromise and adjustment, and a. decree ending the ease on that ground. A compromise decree is final. Ijockwood vs. Holliday, 16 W. Va. 651 ; U. S. vs. Parker, supra. A dismissal agreed is equivalent to a retraxit at common law, which is an " open, voluntary renunciation of his claim in court, and by this he forever loses his action." 3 Bl. Comm. 296. In the words of the court in Hoover vs. Mitchell, cited, this short expression is " a declara- tion of record, sanctioned by the judgment of the court, that the cause of action has been adjusted by the parties themselves in their own way, and that the suit is dismissed agreed." "Code (W. Va.), Ch. 127, sec. 7; Code (Va.) 1887, sec. 3311. *' In Virginia five years. 936 EQUITY PEOCEDUEB. been no order or proceeding but to continue it, may in its dis- cretion, order such case to be struck from its docket; and it shall thereby be discontinued. A court making such order may direct it to be published in such newspaper as it may name.*' But the cause is not discontinued by operation of the statute until the order of the court dismissing it has been entered.'"' A suit will not be dismissed for want of prosecution where the delay was at the request of the defendant and for his benefit.^'' But negotiations for a settlement will not excuse a default in the regular proceedings of the court, unless embodied in an express agreement between the parties.^^ Care should be taken in the draft of the order dismissing the suit for failure to prosecute it, that the order be " without prejudice," as an order simply reciting the plaintiff's failure to prosecute his suit and ordering its dismissal, is in effect a final decree, and can only be set aside by appeal, or by bill of review, within the periods limited by statute.''^ 48 Code (W. Va.), Ch. 127, sec. 8; Code, (Va.), 1887, sec. 3312. 49 Gillespie vs. Bailey, 12 W. Va. 70; Buster vs. Holland, 27 W. Va. 510. A chancery cause is pending in the Circuit Court, in which an order of reference is made on May 10, 1871; within the four years prior to October 13, 1877, no order had been made in the cause, but within that time the commissioner, to whom the cause was referred, had taken depositions upon the matters referred to him, though neither the depositions nor the report were re- turned to court or filed in the cause; then on said last mentioned day, in the absence of the plaintiff and her counsel, an order is entered by the court on the motion of defendant's counsel striking the cause from the docket under the provisions of sec. 8, Ch. 127, of the Code; after two terms of the court had passed and within three years from the date of said order, the plaintiff by leave of the court filed his bill of review to have said order set aside for errors apparent upon the records, and the said bill was sustained and the or- der set aside by the Circuit Court. Upon appeal the said order setting aside the order striking the cause from the docket is affirmed by this court, t]ie judges being equally di- vided on the question as to whether said order should Be reversed or af- firmed. Millbank vs. Ingersoll, 29 W. Va. 396. 50 Person vs. Nevitt, 32 Miss. 180; Doyle vs. Devane, 1 Freem. (Miss.) Ch. 345; Dixon vs. Rutherford, 20 Ga. 153. 61 Norton vs. Kosboth, Hopk. Ch. 101, 2 Law. ed. S57; Orphan Asylum vs. McCartee, Idem, 106, 2 Law. ed. 359. 62 Jones vs. Turner, 81 Va. 709; Battaile vs. Maryland Hospital, 76 Va. 63. MISCELLANEOUS MATTERS OK rKOCEDUKE. 937 §846. Beiustatement of the cause after its dismissal. The Statute of West Vi/rginia provides that any Circuit Court may on motion, reinstate! on the trial docket of the court any case dismissed and set aside any non-suit that may be entered by reason of the non-appearance of the plaintiff, within three terms after the order of dismissal may have been made, or order of non-suit entered.°^ In Virginia, if a suit has been dismissed under the " five-year rule " it may be reinstated on motion, Avithin one year from the date of the order of dismissal, but not after that?* §847. Stipulations of the parties waiving the taking of proof. The courts always encourage the practice of stipulations and agreements between the parties or their counsel in the form of admissions and concessions whereby the delay and expense incident to the taking of depositions are avoided.'^ They ought in general to be in writing and signed by the parties, or their solicitors,"" as they will not usually be regarded in a court of equity unless thus put in writing."' Stipulations in reference to the evidence will receive a fair and liberal construction so as to promote the intention of the parties and a fair hearing of the cause upon its merits."* But if they are contrary to public policy or a rule of court, or contravene established principles of law, they will not be enforced." An agreement that certain facts stated in the report of a prior case may be read in evidence is an agreement that those facts may be considered as legal evidence in the pending cause."" A stipulation that a deposition taken in another cause may be read with the same force and effect as if taken upon proper notice is not a waiver of any 53 Code (W. Va.), Oh. 127, sec. 497; Foster vs. Dickerson, 64 Vt. 11. 260, 24 Atl. Rep. 253. 5* Code (Va.) 1887, see. 3312. 69 i Beach, Mod. Eq. Pr. sec. 532: 55 1 Beach, Mod. Eq. Pr. sac. 532; Fox vs. Martin, 108 Wis. 00, 84 X. 1 Daniell Ch. PI. and Pr. (3th Am. W. Rep. 23, Hughes vs. Kelly, Va. ed.) 848, 849; Shipman, Eq. PI. 130. 30 S. E. Eep. 387. ^'^ Idem. 00 Thompson vs. Thompson, 91 57 Shipman Eq. PL 130. Ala. 591, 8 So. Rep. 419. 58 O'Neal vs. Cleaveland, 3 Nev. 938 EQUITY PEOCEDQEE. other objection, and does not entitle the party to read the deposi- tion if the presence of the witness at the trial would otherwise exclude it."^ And a stipulation that a deposition in another cause may be used does not imply that incompetent evidence therein is to be received if reasonably objected to.°^ §848. Orders and decrees nunc pro tunc. Where a defendant dies after the agreement and submission of the cause and before judgment, the' decree will be entered so as to have relation back as of the day of iinal hearing."'' So it is held that an order confirming a sale may be entered nunc pro tunc J upon competent evidence that such order was in fact made."* And an order of sale may be amended nunc pro tunc at any time, to cure clerical omissions or mistakes therein."" ceeding recorded as of its propei date. And it is no ground for re- fusing such amendment that the rights of third persons will be injur- iously affected thereby. Foster vs. Woodfin, 65 N. C. 29. And see, for instances of orders nunc pro tunc. United States vs. Gomez^, 1 Wall. 690; Supervisors vs. Durant, 9 Wall. 736; Newland vs. Gaines, 1 Heisk, 720. But where, after the decree ■was orally pronounced the record was destroyed by the great fire of 1871 in Chicago, it was held error to refuse a motion to postpone the final decree until the evidence was' supplied. Hughes vs. Washington, 65 111. 245. A decree was also held invalid which was rendered before supplying a lost supplemental bill on which it was based. Groch vs. Stenger, 65 111. 481." 2 Daniell. Ch. PI. and Pr. {6th Am. ed.) 1017, note. «* Jacks vs. Adamson, 56 Ohio St. 397, citing Ludlow's Heirs vs. John- ston, 3 Ohio 553. See Butler vs. Emmett, 8 Paige Ch. 12. 4 Law. ed. 326 and hote. 65 Partington vs. King, 1 Bradf. (N. Y.)|l82; Jones vs. Woodstaok «i Schmitz vs. St. Louis Ry. Co., 46 Mo. App. 380. not require any title or address as kins, 77 Cal. 257, 19 Pac. Rep. 526; a. part of the bill, but of course, the Wise vs. Williams, 72 Cal. 544, 14 one prescribed by the general Pac. Rep. 204. It cannot be used chancery practice, as the one here to supply defects in the pleading, given, may be used. While the cap- Jackson vs. Ashton, supra. tion is often used by the pleader in Tlie first part of the bill proper drafting the bill, still it is not nee- is called the " address." It for- essarily a part of the bill (except merly consisted of the address to the when followed in the form pre- person holding the great seal, and scribed by statute in West Vir- its terms were prescribed by the ginia), and may be entirely omit- court upon every change of the ous- ted. Jackson vs. Ashton, 8 Peters tody of the seal or alteration in the 148; Spalding vs. Dodge, 6 Mackey style of the person to whom it was 289. The complaint itself, aside committed. 1 Dan. Ch. 462; 1 Welf. from statute, and not the caption, Eq. 99; 1 Harr. Ch. 86. FORMS CAPTION AND OTHEE PARTS ©F THE BILL. 9G5 In the Circuit Court of said County," Kules, 1903.*^ A. B. of County, Plaintiff, vs. I In Chancery. C. D. of County, Defendant. To the Honorable , Judge of the Circuit Court of said County : No. 2. WHEN COMPLAINANT IS A MAEEIED WOMAN.' (As in No. 1 down to the *.) A. B., a married woman who sues, by C. D., her next friend, Plaintiff, vs. E. P., Defendant. (Proceed as in No. 1.) In Chancery. It will be observed that the place of residence of each of the parties ^s designated in the form as given above. It is stated by Chancellor Walworth, in Howe vs. Harvey, 8 Paige Ch. 73, 4 Law. ed. 349, that " it appears to be laid down in all the books upon chancery pleading, that the residence or abode of the complainant should be stated in the bill ; though by the practice in this State a particular description of his , calling, or business, does not appear to be necessary, The ob- ject of setting forth the residence of the complainant is stated to be that the court and tiie defendant in the suit may know where to resort to compel obedience to any order or process of the court, and particular- ly for the payment of any costs which may be awarded against such complainant; or to punish him for any improper condufct in the course of the suit. Mitf. ( 3d Am. ed. ) ■ 43, 74; 1 Mont. PI. in Eq. 76; 1 Dan. Ch. Pr. 463; Story Eq. PI. 21, sec. 26." 2 In West Virginia the rules are held, as we have already seen (ante, sec. 251) every month, while in Vir- ginia they are held on the first and third Mondays thereof. So, in the former State, the rule day may be shown in the caption (after the °) thus: "March Rules, 1903," or whatever the rule day at which the bill is filed, or to which the process is returnable; and in the latter State, thus: "1st or 2d March Rules, 1003," as the case may be. 2 Bart. Ch. Pr. (2d ed.) 1265. 3 It is expressly provided now by statute in the Virginias that when- 966 EQUITY PROCEDURE. ISTo. 3. ■WH.EBE THE PLAINTIFF IS AN INFANT. (As in No. 1 down to the *.) A. B., an infant, within the age of twenty-one years, by C. D., hi? next friend, Plaintiff, |- In Chancery. E. F., vs. Defendant. (Proceed as in No. 1.) No. 4. WHERE COMPLAINANT IS INSANE AND FOR WHOM A COMMITTEE HAS BEEN APPOINTED.* (As in No. 1 down to the *. ' A. B., the committee of the estate 1 of C. D-, an insane person, so found by inquisition, Plaintiff, In Chancery, vs. E. R, Defendant. (Proceed as ever a, married woman may sue, either at law or in equity, she may do so as a feme sole. And, of course, no next friend is required. Code (W. Va.), Ch. 66, sec. 15; Code (Va.), 1887, sec. 2288a, Pol- lard's Supp., p. 260. Mr. Barton says : " A married woman formerly sued also by her next friend, but unlike the case of infants and lunatics, no one could be named her next friend without her consent, but now, if adult, she sues in her own name and not by next friend." , in No. 1.) The foregoing form is no longer •in use in the Virginias; nor in any other State in which a married woman may sue as a feme sole. * As already shown {ante, sec. 63), all suits by and on behalf, aa well as against, the lunatic, must be in the name of his committee when he has one, otherwise it may be in his own name by his next friend, and also in his own name when his inter- ests are antagonistic to those of his committee. See also Cooper vs. Hepburn, 15 Gratt. 551; Bird vs. Bird, 21 Gratt. 712. FOEMS CAPTION AND OTHER PABTS OB" THE BILL. 9G7 No. 5. WHEEE ONE CEEDITOE SUES ON HIS OWN BEHALF AND THAT OF OTHEE CEEDITOES, TO BNFOECE A JUDGMENT LIEN.'* (As in No. 1 down to the *.) A. B. on. behalf of himself and all other lien creditors of C. D., Plaintiff, vs. E. F., Defendant. In Chancery. (Proceed as in No. 1.) ISTo. 6. WHEEE A CEEDITOE SUES ON BEHALF OF HIMSELF AND OTHEE CEEDITOES TO SET ASIDE A PEEFEEENCE CEEATED BY THE VOLUNTAEY ACT OF THE DBBTOE.® (As in No. 1 down to the *.) A. B., who sues on behalf of him- self and all other unsatisfied creditors of C. D., who shall come in and contribute to the costs and expenses of this suit, Plaintiff, vs. E. F., G. H. (naming all other de- fendants). Defendants. In Chancer/. (Proceed as in No. 1.) 6 As to who should be defendants « The law as to preferences among to a bill to enforce judgment liens, creditors will be found in the note see ante, sec. 59. to Form 24. 968 EQUITY PEOCEDUEE. No. 7. WHEEE A COEPOEATION IS PLAINTIFF (As in No. 1 down to the *.) The Company, a corporation created by and existing under the laws of / Plaintiff, E. F., vs. In Chancery. Defendant. (Proceed as in No. 1.) Wo. 8. WHEEE COMPLAINANT SUES AS ADMINISTEATOE (As in No. 1 down to the *.) A. B., administrator of C. D., deceased, E. F., Plaintiff, vs. In Chancery. Defendant. . (Proceed as in No. 1.) No. 9 WHEEE COMPLAINANT SUES AS ADMINISTEATOE WITH THE WILL ANNEXED. (As in No. 1 down to the *.) ' Here insert the name of the State under the laws of which such corporation was chartered. I-OBMS CAPTION AND OTtLEB PAETS OF THE BILL. 969 A. B., administrator with the will annexed of C. D., deceased, Plaintiff, vs. E. F., Defendant. In Chancery. (Proceed as in No. 1.) No. 10. WHERE COMPLAINANT SUES AS EXECUTOB.' (As in No. 1 down to the *.) A. B., executor of the last will and testament of C D., deceased, Plaintiff, vs. E. r., Defendant. . In Chancery. (Proceed as in No. 1.) No. 11. WHEKE THE COMPLAINANT SUES AS SPECIAL EECEIVEE (As in No. 1 doivn to the *.) A. B., as receiver of the property of C. D., E. E., Plaintiff, vs. In Chancery. Defendant." (Proceed as in No. 1-) 8 See Hurt vs. Addington, 84 N. Y. 414, 35 N. E. Eep. 658, from Car. 143. which the above title is taken. 9 See Hegewiseh vs. Silver, 140 N. 970 EQUITY PKOCEDURE. No. 12. ■WHEKE THE PLAINTIFF SUES AS SPECIAL COMMISSIONEE. (As in No. 1 down to the *.) A. B., special c!iomniissioiier in the case of C. D. vs. E. F., Plaintiff, vs. G. H., Defendant." J In Chancery. [Proceed as in No. !■) No. 13. WHEEB THE PLAINTIFF SUES AS ADMINISTEATOE DE BONIS NON. (As in No. 1 down to the *. ) A. B., administrator de bonis non of the estate of C. D., deceased, Plaintiff, vs. E. F., Defendant.^ (Proceed as in No. 1.) In Chancery. No. 14. WHERE THE PLAINTIFFS SUE AS PAETNEES. (As in No. 1 down to the *.) 10 See Blair vs. Core, 20 W. Va. not necessary where words of like 265 from which the above form is import are used. Barkman vs. Duii- taken. can, 10 Ark. 465. 11 The words "de bonis non " are FORMS CAPTION AND OTHEE PABTS OF THE BILL. 971 A., B., and C, partners," under the firm name (or after the doing business under the firm name and style, or doing busi- ness under the name and style) of A. and Company, Plaintiffs, D. E., vs. In Chancery. Defendant. (Proceed as in No. 1.) No. 15. WHEKE THE PLAIITTIFF SUES AS A SURVIVING PARTNER. (As in No. 1 down to the *.) A., surviving partner of himself and B., who did business under the firm name of A., B., and company, Plaintiff, vs. CD., Defendant. (Proceed as in No. 1.) In Chancery. ISTo. 16. WHERE THE PLAINTIFF SUES AS A MUNICIPAL CORPOEATION. (As in No. 1 down to the *.) A., a municipal corporation, Plaintiff, vs. B. C, In Chancery. Defendant. (Proceed as in No. 1.) 972 EQUITY PKOCEDUEE. §875. The introduction of the bill," showing also the different capacities in which a party may sue. No. 17. THE GBNEEAL FOEM. (Here insert the title as shown in forms 1-16, as the case may require.) Humbly complaining, sheweth unto your honor, your orator A. B., of , in the county of , and State of , that, etc-^" No. 17a. A SECOND GENEEAL FOEM. (Title of cause as in form No. 1.) Your orator, A. B., complaining, sheweth unto the court, that, etc." No. 18. A THIED GENEEAL FOEM. (Omit title of cause as in form No. 1.)^^ To Honorable — - — , Judge of the Circuit Court of Coun- ty, West Virginia: The bill of complaint of A. B. (stating the names of all the plaintiffs)* against C. D. (stating the names of all the defend- ants, if known, and if not, designate tliem as the " unknown parties," or " unknown heirs," etc., as the case may be) filed in the Circuit Court of county. The plaintiff complains and says that, etc. 12 As to what the introduction of i6 The form here given is the one the bill usually contains, see ante, prescribed by the Code of West Vir- sec. 99. ginia, Ch. 125, sec. 37, omitting the 13 This form is taken from Cur- address to the Judge. See Morgan tis' Equity Precedents, at p. 2. vs. Morgan, 42 W. Va. 542, 26 S. E. 1* This form is taken from 2 Bart. Rep. 294. Ch. Pr. (2d ed.) 1270. FORMS CAPTION AND OTHER PARTS OF THE BILL. 973 No. 19. WHERE THE COMPLAINANT IS AN INFANT. (Title of cause as shown in form No. 1.) Complaining, sheweth unto your honor, your orator A. B., of , an infant under the age of twenty-one years, to-wit, of the age of six years, or thereabouts, and son of E. B. of the same place, by the said E. B. his father and next friend (or son of E. B., late of aforesaid, deceased, by C. D., his next friend), that etc.^® ISTo. 20. WHERE PLAINTIFF IS AN INFANT^ SECOND FORM. (Title of cause as shown in form No. 1.) Your orator, A. B., an infant of tender years, who sues by C. D., his next friend, complaining, sheweth, that etc.^'^ ISTo. 20a. WHERE PLAINTIFF IS AN INFANT, A THIRD FORM. (Title of cause as shown in form No. 1.) The bill of complaint of A. B., an infant under the age of twenty-one years, who sues by E. F., his next friend (continue as in form No. 18 from the *). No. 21. WHERE THE COMPLAINANT IS THE COMMITTEE OF AN INSANE PERSON. (Title of cause as shown in form No. 1.) Your orator, A. B., committee of C. D., an insane person, complaining, sheweth : 16 See Lube, Eq. PI. 324, and Cur- legation in the pleading that the tis' Equity Precedents, p. 2, where plaintiiT sues by his or her next this form is given. friend is all that the practice re- 17 Taken from 2 Bart. Ch. Pr. (2d quires. Miles vs. Boyden, 3 Pick, ed.) 1270. (Mass.) i 1 3 ; Judson vs. Blandiard, An order appointing a next friend 3 Conn. 579. is not necessary. A recital or al- 9Y4 EQUITY PEOCBDUEE. 1st. That upon proceedings duly had before , a Justice of the Peace within and foi* the county of , in said State, the said C. D. was duly adjudged insane and committed to the asylum, as will more fully and at large appear from the record of said proceedings, a copy of which is herewith filed as an ex- hibit marked " Exhibit JSTo. 1 " and made part hereof; that sub- sequently your orator was duly appointed, gave bond, and quali- fied, as the committee of the said C. D., which will more fully appear from the record thereof, an attested copy of which is herewith filed as an exhibit marked " Exhibit No. 2," and made part of this bill. No. 22. WHEEB THE PLAINTIFF IS A PEIVATE COEPOEATION. (Title of cause as shown in form No. 1.) Humbly complaining, sheweth unto your honor, your orator, The Company : 1st. That it is a corporation duly incorporated under (or established by) the laws of the State of .'* 18 See Curtis' Equity Precedents; Lube Eq. PI. 325. In suits by or against a corpora- tion, it is said that it is sufficient to allege in general terms that it is a corporation duly organized. Cal. Steam Nav. Co. vs. Wright, 6 Cal. 258 ; Dodge vs. Minnesota Plastic Slate Roof Co., 14 Minn. 49 ; Smith vs. Weed Sewing Machine Co., 26 Ohio St. 562. But, as we have seen {ante, see. 512) in the Virginias by virtue of statute [Code (Va.), 1887, Ch. 159, sec. 3280; Code (W. Va.), Ch. 125, sec. 41], it is sufficient if the plead- ing indicate the fact of incorpora- tion. In Gillett vs. The American Stove and Hollow Ware Co., 29 Gratt. 565, Burks, J., who delivered the opinion of the court, speaking as to the sufficiency of the allegation of the fact that the plaintiff in the suit was a corporation, says : " No affidavit was filed by the defendant with the plea in this case, and it is contended by his counsel here that the case does not come within the operation of the statute, because,' as alleged, it does not appear that the plaintiff ' sued as a corporation.' " We think it does sufficiently ap- pear that the plaintiff ' sued as a. corporation.' " The writ and declaration are in the name of ' The American Stove and Hollow Ware Company ' as plaintiff. T'le name imports a cor- poration, or at least, the descrip- tion amounts to an allegation that the plaintiff is a, corporate body. " Woolf vs. The City Steamboat FOEMS CAPTION AND OTHEE PAETS OF THE BILL,. 975 No. 23. WHEEE THE PLAINTIFF SUES ON BEHALF OF HIMSELF AND ALL OTHEE LIEN CEEDITOES TO ENFOECE A JUDGMENT. (Title of cause as shown in form No. 1.) Humbly complaining, *slieweth unto your honor, your orator, A. B., that he brings this suit on behalf of himself and all other Company, 62 Eng. C. L. 103, was a, case in assumpsit. The declaration commenced thus : ' The plaintiff complains of the City Steamboat Company, who have been sum- moned,' etc. There was a, special demurrer to the declaration, assign- ing for causes, that the names of the defendants were not stated; that it did not appear whether they were sued as a, corporation or a. company completely registered, or by virtue of v/hat act of Parlia- ment they were entitled to be sued by tile name of a company. Maule, J., in rendering judgment, the rest of the court concurring, said : ' The mode of pleading is governed either by positive rules or by a known course of precedents. There is no positive rule that I am aware of, which requires such a mode of description as the defendant's coun- sel insists upon in this case; nor is the description which is given at all not of the usual form ; it im- pliedly amounts to an allegation that the defendants are a corporate body.' "In Norris vs. Stapps, Hob. 210, the Lord Chief Justice said : ' I am of opinion t!iat they { the plaintiffs ) needed not to show how they were incorporated, for the name argues a, corporation, as the like of cities; and the plea nil debet (or the like) requires proof of it.' " The decision in Henriques vs. Dutch West India Company, 2 Ld. Raymond, 1532, is to the same ef- fect. " In the case of Eees vs. Cono- coeheague Bank, 5 Rand. 326, the declaration was in the name of ' The President and Directors of the Conococheague Bank,' without fur- ther description. It was not al- leged in terms that the bank was a corporation, or how or by what power it was incorporated. Judge Green, in his opinion, concurred in by the other Judges, said : ' Wheth- er the Bank of Conococheague is an incorporated bank or not, or wheth- er they have a legal right to sue in the name of the president and di- rectors only, are questions which might have been put in issue by the defendants or raised upon the trial of the general issue. No averments as to these subjects were necessary in the declaration.' " In an action against a railroad company it is not necessary to aver in the declaration that it is a cor- poration, nor is it necessary to prove on the trial that the defend- ant is a corporation, unless with the plea there is filed an affidavit denying that it is. The court will ex officio take notice of the fact. Bait. & Ohio R. R. Co. vs. Sherman, 30 Graft. 602 ; Douglass vs. K. & M. Ry. Co., 44 W. Va. 267, 28 S. E. Rep. 70.5. It is the usual practice ■ in the Virginins to simply state that the party is a " corporation." 976 EQUITY PEOCEDUEE. lien creditors of said C. D., (1) (or where two or more creditors unite as plaintiffs, which they may do, the form will he from, the * show unto your honor, your orators A. B. and E. F., who sue on behalf of themselves and all other lien creditors of said C. D.). No. 24. WHEEE THE PLAINTIFF SUES TO SET ASIDE A PEBFEEENCE CHEATED BY THE VOLUNTAEY ACT OF THE DEBTOE. (Title of cause as shown in form No. 1.) Humbly complaining, sheweth unto your honor, your orator, A. B., who brings this suit on behalf of himself and all other unsatisfied creditors of G. D., who shall come in and contribute to the costs and expenses of this suit, that etc.^^ 19 In West Virginia preferences among creditors of an insolvent debtor are now forbidden by stat- ute. Code (W. Va.), Ch. 74, sec. 2, fvbieh provides as follows : " Every transfer or charge made by an in- solvent debtor attempting to prefer any creditor of such insolvent debt- or or to secure such a creditor or any surety or endorser for a debt to the exclusion or prejudice of any other creditor, shall be void as to such preference or security, but shall be taken to be for the benefit of all creditors of such debtor, and all the property so attempted to be transferred or charged shall be ap- plied and paid pro rata upon all the debts owed by such debtor at the time such transfer or charge is made; provided, that any such transfer or charge by an insolvent debtor shall be valid as to such preference or priority unless a cred- itor of such insolvent debtor shall institute a suit in chancery within one year after such transfer or charge was made to set aside and avoid the same and cause the prop- erty so transferred or charged to be applied toward the payment pro rata of all the debts of such insol- vent debtor existing at the time such transfer or charge is made, subject, however, to the provision hereinafter contained with refer- ence to creditors uniting in such suit and contributing to the ex- penses thereof. But it such trans- fer or charge be admitted to record within eight months after it is made then such suit, to be availing, must be brought within four months after such transfer or charge was admitted to record. Every such suit shall be deemed to be brought in behalf of the plaintiff and all other creditors of such insolvent debtor, but the creditor instituting such suit or proceeding, together with all creditors of such insolvent debtor, who shall come into the suit and unite with the plaintiff before final decree and agree to contribute to the costs and expenses of said suit, shall be entitled to have their FOEMS CAPTION AND OTHER PARTS OF THE BILL. 977 , No. 25. WHEEE THE PLAINTIFF SUES AS ADMINISTEATOE. (Title as shown in form No. 1.) Humbly complaining sheweth unto your honor, your orator, A. B., administrator of C. D., deceased : 1st. That on the 6th day of January, 1903, said C. D. died intestate, and that * your orator was, on the 24th day of April, duly appointed his administrator, gave bond and quali- fied, and ever since hath been, and nov? is, acting as such ad- ministrator."" claims first paid in full pro rata out of the property so transferred or charged, in preference to any creditor of such debtor who shall before final decree decline or fail to so unite and agree to contribute to the costs and expenses of said suit, but not in preference to such cred- itor as may attempt to sustain the preference given him by such trans- fer or charge." In the absence of a statute to the contrary, an insolvent debtor may prefer one creditor to another (Hogg's Eq. Princ, sec. 200), and this he may do in Virginia, requir- ing releases from such as accept the benefits of the trust deed creating the preference. 1 Bart. Ch. Pr. (2d ed. ) 569. The author just cited, treating of the matter of preference created by deed of trust made by the insolvent, says : " It has been held that such a deed must convey the whole of the debtor's property, although this fact need not appear on the face of the deed, and the re- tention 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 suflScient de- scription of the property conveyed is always requisite, yet where a deed referred to a schedule of goods which was then made out and in- tended 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." Idem, 569. For a full consideration of the policy and scope of the law against preferences in West Virginia, see Hogg's Eq. Princ, sees. 200-203; Foley vs. Euley, 50 W. Va. 158, 40 S. E. Rep. 382. 20 A statement that the plaintiff sues in the capacity of administra- tor is a sufficient allegation that he is administrator. Duncan vs. Dun- can, 19 Mo. 368. It has been decided that a com- plaint will not be held bad because it contains no express allegation that the plaintiff' sues in a repre- sentative capacity, if the complaint otherwise contains essential aver- ments showing that the plaintiflf has such representative capacity and fairly apprises the defendant that plaintiff's intent is to prosecute in such capacity. Cordier vs. Thompson, 8 Daly (N. Y.) 172. See, however, ante, sec. 108. The abbreviation " adm'r " fol- lowing the plaintiff's name suffi- ciently stands for the word " ad- ministrator." Moseley vs. Mastin, 37 Ala. 216. With reference to the sufficiency 978 EQUITY PEOCEDtraE. No. 26. WHEEE PLAINTIFF SUES AS ADMINISTEATOE WITH THE WILL ANNEXED. (Title as shown in form No. 1.) Humbly complaining, sheweth unto your honor, your orator, A. B., administrator with the will annexed of C. D., deceased : 1st. *That on the 22nd day of January, 1903, the said C. D. died, leaving a last will and testament ; that on the first day of February, 1903, said last will and testament was duly admitted to probate by the County Court of County, in the State of , all of which will more fully and at large appear by reference to said will and order probating the same, attested copies of which are herewith filed as exhibits marked, respectively, " Exhibits Nos. 1 and 2," and made part of this bill.* 2nd. That on the fifth day of March, 1902, letters of ad ministration, with said last will and testament annexed, were of a pleading, to show that the plaintiff sues in a representative capacity, the court, in Lucas vs. Pittman, 94 Ala. 616, 10 So. Rep. 603, decides : " The words ' as ad- ministrator following the plain- tiff's name in the caption of a, com- plaint, are sufficient to show that the plaintiff sues in a representa- tive capacity, though no allegation with rtferenee thereto is made in the complaint. The word ' adminis- trator,' following alone the plain- tiff's name in the caption, is a mere word of personal' description, but, if the body of the complaint following such a caption contains a sufficient statement to show that plaintiff sues in his representative capacity, the body of the complaint will gov- ern the caption. Montgomery Co. vs. Barber, 45 Ala. 237, overruled." In practice in the Virr/inias, it is believed by the author that, the words " administrator of D. C, de- ceased," following the name of the plaintiff in the commencement of the bill, is a, sufficient showing of the capacity in which the plaintiff sues, without further averment as to that matter. A pleading to the merits admits the right of the plaintiff to sue in the capacity averred by the plain- tiff. McDonald vs. Cole, 46 W. Va. 186, 32 S. E. Rep. 1033. In this case the court holds : " Where one sues as executor or administrator, or in other representative character, there need be no proof of his ap- pointment or authority, unless a plea denies it. A plea to the merits admits the right of the plaintiff to sue as he does." See ' in this connection McNulta vs. LocKridge, 137 111. 279, 27 N. E. Rep. 452. POEMS CAPTION AND OTHER PAETS OP THE BILL. 979 duly issued to the said plaintiff, appointing him, the said A. B., as the sole administrator with the will annexed of said C. D., deceased ; and that thereupon the said A. , B. duly qualified as such administrator and entered upon the discharge of his duties as such administrator and is now acting as such. No. 2Y. WHEEE PLAINTIFF SUES AS EXEGUTOE. (Title as shown in form No. 1.) Humbly complaining, sheweth unto your honor, A. B., exec- utor of the last wilL and testament of C. D., deceased: 1st. (Here follow form No. 26 from * to *.) 2nd- That immediately after the probate of said will, to- wit, on the first day of February, 1903, letters testamentary were regularly and duly issued by said County Court to said A. B., your orator, the sole executor named in said last will and testament, and that said A. B. thereupon duly qualified and entered upon the discharge of the duties of his said ofiice as such executor and is now acting as such.^^ No. 28. WHEEE THE PLAINTIFF SUES AS SPECIAL EBCBIVEE. (Title as shown in form No. 1.) Humbly complaining, your orator, A. B., receiver of the property of C. D., sheweth unto your honor: 21 Forms Nos. 26 and 27 are taken make profert of the letters of ad- substantially from 4 Ene. Forms, ministration, it was held that 1070, 1071, 1076. though there were no direct aver- An allegation that letters testa- ments of plaintiffs' appointment as mentary were granted and issued executors, yet that fact was neces- by the County Court is sufficient sarily inferable from other facts without averring an acceptance of stated. Bird vs. Cotton, 57 Mo. the trust and qualification therefor. 568. Mattison vs. Childs, 5 Colo. 78. Allegation that probate and qual- Where the plaintiffs in a petition ification were had in the Probate style themselves executors of A., Court before filing the complaint is state that the note sued on was sufficient. Hurst vs. Addington, 84 made to their testator, aver his N. Car. 143. death, and bring into the court and 980 EQUITY PBOCEDUEE. 1st. That on the day of , 1903, by the Circuit Court (or in vacation by the Judge of the Circuit Court, as the case may be) of County, in the State of , in the cause of E. F., plaintiff, against said C. D., defendant, pending therein, your orator was duly appointed receiver of the estate of said C. D., and by another order made in said cause by said court, on the day of , 1903, your orator was duly authorized and empowered to sue and collect all claims and debts owing to the said C. D.'^ No. 29. WHEEE PLAINTIFF SUES AS SPECIAL COMMISSIONEE. Humbly complaining, your orator, A. B., special commis- sioner in the case of C. D. vs. E. F., sheweth unto your honor; Eirst. That your orator was, on the day of , 1903, by the Circuit Court of the county of , and State of , in the said case duly appointed special commissioner, to make sale of the property hereinafter described and that sale was made thereof to said G. H., who executed to your orator, as special commissioner, the bonds hereinafter described for the deferred payments of the purchase money; that your orator was, on the day of , 1903, duly authorized and empowered by said court to sue upon and collect said bonds by a decretal order duly entered in said case as of the said last named date.^^ 22 A receiver has no power to sue under such decree and take bonds unless authorized so to do by the for deferred payments on said lands, court that appointed him. Ante, and who makes such sale and takes sec. 63 ; Screven vs. Clark, 48 Ga. bonds payable to himself as such 41; Battle vs. Davis, 66 N. C. 252; commissioner, when said sale is re- King vs. Clarkj 24 Wis. 627. ported to court and confirmed, has 23 See note to Form No. 12. The no authority to collect said sale oourt i-n Blair vs. Core, 20 W. Va. bonds unless the decree conferring 265, holds: "A person, who ap- the appointment or some subsequent pointed by a decree of court special decree or order of court gives him commissioner to make sale of lands authority to do so." FORMS CAPTION AKD OTHEE PABTS OF THE BILL. 981 No. 30. WHEEE THE PLAINTIFF SUES AS ADMINISTRATOR DE BONIS NON. (Title as shown in fortn No. 1.) Humbly complaining, your orator, A. B., administrator de bonis non of the estate of C- D., deceased, sheweth unto your honor : (Here proceed as in form No. 25 to the * and then continue as follows:) E. F. was on the day of , 1903, duly appointed his administrator, gave bond and qualiiied and con- tinued to act as such administrator until his death, (or re- moval as the case may be) which occurred on the day of , 1903, leaving a large part of the assets of said estate of C D. not administered upon ; that subsequently, to-wit, on the day of , 1903, letters of administration of the goods, chattels, credits and other property of said estate so not admin- istered upon by said E. F., as administrator aforesaid, were duly issued to your orator as sole administrator de bonis non of said estate ;. and thereupon your orator, A. B., duly qualified as such administrator de bonis non, and immediately entered upon the discharge of his duties as such administrator, and ever since that time has been and now is acting as such admin- istrator. No. 31. WHERE THE PLAINTIFFS SUE AS PARTNERS. (Title as shown in form No. 1.) Humbly complaining, your orators, A. B. and C, partners under the firm name of A. and Company, show unto your honor : 1st. That the said A. B. and C, your orators, are a duly organized co-partnership, carrying on business as wholesale grocers, (or whatever the business may be), in the city of , in the County of , and State of , under the firm name of A. and Company.^* -* As to the propriety of all part- ners uniting as plaintiffs in the bill, see ante, sec. 75. 982 EQUITY PEOGEDUKE. ISTo. 32. WIIEEE THE PLAIKTIFF SUES AS A SUEVIVING PAETJSTEE. (Title as shown in form No. 1.) Humbly complaining, your orator, A., surviving partner of himself and B., who did business under the firm name of A. B. and Company, sheweth unto your honor: 1st. That at the time hereinafter mentioned, your orator and one B. were partners, carrying on the business of in the city (or town) of , in the State of , under the firm name and style of A. B. and Company. 2nd. (Here set forth the cause of complaint, designating it by consecutively numbered paragraphs, at the option of the plaintiff's draftsman. See as to this § S99, note 25.) 3rd. That on the day of , 1903, said B. departed this life, leaving your orator the sole surviving partner of said firm.^'^ No. 33. WHEEB THE PLAINTIFF SUES AS A MUNICIPAL COEPOEATION. (Title as shown in form No. 1.) Humbly complaining, your orator, A., a municipal coi> poration, sheweth unto your honor : 1st. That your orator is a corporation created by the laws of the State of West Virginia, under the corporate name of A.^* 25 A complaint by surviving part- scribed ; that plaintiff is tbe sole ners should set out all the names of surviving partner of said copartner- the partners and show how the par- ship, and now is the owner and en- ties became survivors. Hubbell vs. titled to the immediate possession " Skiles, 16 Ind. 138. of the property particularly de- An averment " that plaintiff and scribed in the complaint, etc., is suf- one B. H. GrocJcer, now deceased, fieient. Reese vs. Kinkead, 17 Nev. were copartners in business preced- 447, 30 Pac. Rep. 1087. ing and at the time of said Crock- 2« Where the plaintiff is designat- er's death, which occurred on or ed in the complaint as " The Board about Octoier 11, 18 — , and as such of School Trustees for the town of copartners did business under the Edinburg," such designation implies style of Crocker & Reese, and were that such plaintiff is a corporation, the owners in copartnership of the and such complaint is sufficient on personal property hereinafter de- demurrer thereto for want of legal FOEMS CAPTION AND OTHEK PAETS OF THE BILL. 983 STo. 34. §876. The premises or stating part of the bill. (After setting out the facts showing plaintiff's equity.) And your orator (or the plaintiff) hoped that said C. D., (the defendant) would have complied with the reasonable re- quests of your orator (or the plaintiff) as in justice and equity- he ought to have done.'^ ITo. 35. §877. The confederating part of the bill. But now so it is, may it please your honor, that the said C. D., combining and confederating with divers persons (or if there are several defendants, combining and confederating to- gether and with divers persons) at present unknown to your orator (or the plaintiff) whose names, when discovered, your orator (or the plaintiff) prays he may be at liberty to insert herein with apt words to charge them as parties defendant hereto, and contriving how to wrong and injure your orator (or the plaintiff) in the premises, he, the said E. H., absolutely capacity to sue. Mackenzie vs. Board of School Trustees, 72 Ind. 189. In an action by a, school district it is not necessary to set out at length the manner in which the dis- trict was formed. Fort Dodge City School Dist. vs. Wahkansa Dist. Tp., 15 Iowa 434. 2TLube Equity PI. 326; Curtis' Eq. Precedents, 4; Dunlap's Book of Forms, 421. As we have already seen this is the all-important part of the bill. A-nte, sees. 100, 108, 109. In addition to what has already been stated in Ch. 4, sees. 100, 108- 138, it may be well to observe that a plaintiff will not be permitted or required to offer evidence of any material fact not distinctly alleged in the premises. Story's Eq. PI., sees. 28, 257, 263. " Where the facts stated in the bill are disproved, or are defectively stated, relief may be granted upon the facts stated in the answer; 3 A. ■K. Marsh. 474; 8 Dana, 184; 10 Yerger, 115; 7 Yerger, 30. But see 11 Pet. 229; 7 Wheat, 522; 6 Johns. 564; Story's Eq. PI., sec. 257, 264; 15 Vermont, 110; 8 Gill and Johns. 171." Ohio Forms and Practice, note, p. 588. And every bill, too, must show clearly that the complainant has a right to the thing demanded, or sueti an interest in the subject-mat- ter as gives him a right .to institute a suit concerning it. Story's Eq. PL, sec. 23. 984 EQUITY PROCEDUEE. refuses to comply with such requests, and he at times pretends that, etc. (Here follows the charging part of the hill.) or But now so it is, may it please your honor, that the said R. H., L. M. and IST. M., in concert with each other, allege that, etc. (or colluding and confederating with each other, refuse to comply with such requests, and pretend that, etc.)^* No. 36. §878. The charging part of the bill. That the said defendant sometimes alleges and pretends (insert the supposed contention of defendant), and at other times he alleges and pretends, etc-, whereas your orator (or the plaintiff) charges the contrary to be the truth, and that, etc. (stating the special matter with which plaintiff meets defend- ant's supposed case.)'^ No. 37. §879. The jurisdiction clause of the bill. All which actings, doings, and pretenses of the said defend- ant (or defendants) are contrary to equity and good conscience, and tend to the manifest wrong, injury and oppression of your orator (or the plaintiff) in the premises. In consideration 2* See Lube Eq. PL 326 ; Dunlap's or specially describe all the evi- Book of Forma, 422. denee which is to be put into the As to what is said relative to this case, provided it contains allega- part of the bill, see ante, sec. 101. tions broad enough to cover the evi- 28 Lube Eq. PI. 326, 327. Every dence relied on. Nesmith vs. Cal- bill must contain sufficient matter vert, 1 Wood, and M. 34. in itself to maintain the case of the As to the use of the charging part plaintiff (Harrison vs. Nixon, 9 of the bill in the practice in the Vir- Peters 483) ; but it need not allege ginias, vide ante, sec. 102. FOEMS CAPTION AND OTHEE PAETS OF THE BILL. 985 whereof, and forasmuch as your orator (or the plaintiff) is remediless in the premises, at and by the strict rules of the common law, and can only have relief in a court of equity, where matters of this nature are properly cognizable and re- lievable. (Here follows the interrogatory part.)^" No. 38. §880. The interrogatory part of the bill. To the end, therefore, that the said C. D., and the rest of the confederates when discovered, may, upon their several and respective corporal oaths, full, true, direct, and perfect answer make, to all and singular the matters hereinbefore stated and charged {or;, to all and singular the premises, or, to all and sin- gular the charges and matters aforesaid) as fully and particu- larly as if the same were hereinafter repeated, and they there- unto distinctly interrogated (or, as fully in every respect as if the same were here again repeated, and they thereunto partic- ularly interrogated) ; and that not only as to the best of their respective knowledge and remembrance, but also as to the best of their several and respective information, hearsay, and be- lief (or, according to the best of their respective knowledge, in- formation and belief) ; and more especially, that they may answer and set forth whether, etc (Here follow the interrog- atories to be answered by the defendant. )^^ No. 39. §881. The prayer of the bill for relief. (After the interrogating part) and that the said defendant may come to a fair and just account, etc. (stating the particu- 30 Lube Eq. PL 327; ante, sec. ^^Idem, 327, 328. See as to the 103. This part of the bill is really present use of this part of the bill, unnecessary. Ante, sec. 103. ante, sec. 104. 986 EQUITY PEOCED0EE. lar relief ashed) and that your orator may have such further and other relief in the premises, as the nature of his case shall require, and to your honor shall seem meet (or, that your orator may be further and otherwise relieved in the premises accord- ing to equity and good conscience.)'^ ISTo. 40. ANOTHER rOBM OF PEAYEK FOE BELIEF. And that an account may be taken by and under the direction and decree of this honorable court, etc., etc. And that the de- fendant may be decreed to pay unto your orator (or the plain- tiff), etc., etc. And that your orator (or the plaintiff) may have such further or other relief in the premises as the nature of the circumstances of this case may require, and to your honor shall seem meet.'^ No. 41. PEATEE FOE AN ANSWBE, OATH WAIVED INJUNCTION AGAINST PEOCBEDINGS AT LAW DECLAEATION OF TRUST CON- VEYANCE. To the end, therefore, that the plaintiffs may have that relief which they can only obtain in a court of equity, and that the said defendants may answer the premises, but not upon oath or affirmation, the benefit whereof is expressly waived by the plaintiffs, and that the said defendants, who are plaintiffs as aforesaid in 'the said action at law, may be perpetually enjoined from further prosecuting the same, and that it may be de- clared that the said lands are charged with a trust in favor of, and ought to be held for, the use and benefit of, etc., and that the said defendants, or so many and such of them as shall ap- pear to have the legal title to said lands, may be decreed to convey such legal title, free of all encumbrances done or suf- 32 Lube Eq. PI. 328, 329. 33 Idem, 329. FOEMS CAPTION A]SrD OTHER PARTS OF THE BILL. 987 fered by them, or any or either of them unto the plaintiffs, in their said capacity, to hold to them and their, etc, upon the trusts aforesaid, and for such further or other relief as the nature of this case mav require, and to your honor shall seem meet.^* No. 42. PRATER FOE AN USTJUNCTION. Wherefore your orator prays the court to now grant him a writ of injunction,^** restraining and enjoining the said de- fendants here (insert the special matters sought to he enjoined), until the further order and decree of this court in the premises.^" Ho. 43. PRAYER FOR THE PRODUCTION OF DEEDS, PAPERS, ETC. And that the said defendants may set forth a list or sched- ule, and description of every deed, book, account, letter, paper, or writing relating to the matters aforesaid, or either of them ; or wherein or whereupon there is any note, memorandum, or writing relating in any manner thereto, which now are, or ever were, in their or either, and which, of their possession or power, and may deposi^t the same in 'the office of the clerk (or in the hands of one of the masters) of this honorable court, for the usual purposes; and otherwise that the said defendants may account for such as are not in their possession or power.^® ISTo. 44. THE PRATER FOE PROCESS. May it please your honor to grant unto the plaintiff a writ of subpoena, to be directed to the said C. D. and F. E., thereby 3* Idem, citing Earl vs. Earl, 8 36 Lube Eq. PI. 330. Cush. 430. 36 Idem. 3i* Not usual to issue formal writ As to the prayer for relief, see of injunction in the Virginias. See ante, sec. 105, where the subject is post, sec. 1211 and note. ~ considered. 988 EQUITY PEOCEDUEE. commanaing them, and eacli of them, at a certain time, and under a certain penalty therein to be limited, personally to appear before this honorable court {or your honor in this hon- orable court), and then and there full, true, direct, and per- fect answer make to all and singular the premises,* and further to stand to, perform and abide such further order, direction, and decree therein as to this honorable court (or, to your honor) shall seem meet (or as shall seem agreeable to equity and good conscience.)^'' 3' Lube Eq. PI. 330. ton's Suit in Eq. 43, note 1 ; Equity The words in italics commencing Draftsman, 6. at the * must be omitted in bills As to what is said as to the neces- merely for discovery, or to perpet- sity of this part of the bill, see ante, uate the testimony of witnesses. sec. 106. Story Eq. PI., sec. 44, note; Bar- ETC. 989 CHAPTER XXXVII. THE PRECIPE, PROCESS, AND FORMS RELATING THERETO. §883. General observations as to forms. §884. The ordinary form of a precipe. Another form of an ordinary precipe. Precipe where there are several defendants, some of whom are non-residents and infants. §885. The s"ummons commencing a suit in Virginia. The summons commencing a suit in West Virginia. The affidavit of the non-residence of the defendant. The affidavit of non-residence and as to the unknown defend- ants. §886. The order of publication in West Virginia. §887. Certificate as to the publication of the order to be appended thereto. §888. The affidavit as to the posting of an order of publication in West Virginia to be appended thereto. §889. Certificate of publication and posting in Virginia. §890. Order of publication in Virginia as to a natural person. Order publishing process as to corporations. §891. Sheriflf's return upon process. Where defendant is served in person. Sheriff's return, upon summons to be served on a natural person when service is made on a member of defendant's family. Where service is made on defendant by posting a copy of the process at the front door of his usual place of abode. When service is made upon a corporation upon its attorney. Where service is made upon a corporation upon its president. Where service is made upon a corporation when it . cannot be had upon its president or other chief officer. Where service is made upon a corporation which has failed to comply with section 24, chapter 54 of the Code of West Virginia. Where service is made in West Virginia upon a corporation by delivering a copy of the summons to a depot or sta- tion agent. Where service is made in West Virginia upon a corporation by delivering a copy of the summons to a director. Where service is made in West Virginia upon a foreign in- surance company. 990 EQUITY rEOCEDUEE. Where servi Solicitors for the Plaintiffs. 25 VVhile this illustrates the form the question of the mental capacity of a bill used to set aside an in- of the testator to make the deed in strument made by a person mental- question involves the matter of title ly ineompetent to execute it, it which, in a case like the one shown also embodies the further object of in the form, may be determined in a partition as an incident to the suit, court of equity, having for its ulti- which is allowable on that principle mate object the partition of realty, of equity jurisprudence which de- Hogg's Eq. Princp., see. 371. dares that when equity takes cog- We also refer here to the case nizance of a cause for any purpose of Physio-Medical College vs. Wil- it will retain it and decide all the kinson, 108 Ind. 314, 9 N. B. questions connected with it. Here, Rep. 167, which was a suit 104:0 EQUITY PROCEDOEE. No 86. §907. For the cancellation of a written instrument because of infancy. (After the usual caption and commencement.) The plaintiff complains and says that on the day of October, 19 , he was the owner in fee simple of a tract of one hundred acres of land situate in Grant District, Jackson County, West Virginia, which was conveyed to the father of this brought by the heirs-at-lavv of a grantor in a deed to set the instru- ment aside on the ground of mental incapacity of the testator* to make the deed. The allegation there by the plaintiff was, that " the grantor was greatly enfeebled and debilitat- ed both in mind and body, so much so that she was of unsound mind and was not of sound and disposing memory and incapable of compre- hending the nature of a contract or deed." This allegation was held to sufficiently allege the unsoundness of mind of the grantor at the time the deed in question in that case was made. In addition to what is elsewhere {ante, see. 815, and post, sec. 907) said as to restoring the considera- tion received before a suit can be maintained to cancel or rescind the contract or agreement complained of, and under which the considera- tion passed, it may be well to state that " where a contract is honestly made with a person of unsound mind, not judicially so declared, in ignorance of such mental incapacity, and a fair consideration has been paid to him, and used for his ben- efit, there can be no recission with- out an offer to restore the same; but, where no such beneficial con- sideration has been received, there is no necessity for any tender in a suit by the heirs of such insane per- son to have the contract rescinded." Physio-Med. Col. vs. Wilkinson, 108 Ind. 314, 9 N. E. Eep. 167. The following is part of the note to Jackson vs. King, 15 Am. Deo. 367, pp. 367, 368: "An important point, as already intimated, which must be considered in determining whether an insane person shall be allowed to avoid or rescind his ex- ecuted contract, is as to the possi- bility of placing the parties in statu quo. The rescission or avoidance of such a contract is put on equitable grounds; and it is generally held that if there has been no unfairness or imposition, or undue advantage taken, and the insanity was un- known to the other party, the con- tract will only be avoided upon con- dition that the party seeking relief will do complete equity by restoring what he has received ; Canfield vs. Fairbanks, 63 Barb. 461; Eaton vs. Eaton. 37 X J. L., (8 Vr.) 108; Lincoln vs. Buckmaster, 32 Vt. 659 ; Carr vs. Holliday, 5 Ii-ed. Eq. 67 ; Arnold vs. Richmond Iron Works, 1 Gray, 434; Molton vs. Camroux, 2 Exch. 486; 1 Whart. & Stille's Med. Jur., sec. 9. But it is held in a number of cases that one seeking to avoid a contract on the ground of insanity, is not bound ti restore the consideration; Gibson FOEMS ORIGINAL BILLS. 1041 plaintiff by deed bearing date on the day of , 18 , and duly recorded in the clerk's office of the County Court of said county, an attested copy of which is herewith filed, marked '' Exhibit A " and made part of this bill. The plaintiff, further complaining, says, that on the • day of , 18 , J B , the father of A B , the plaintiff, so being the owner of said land by virtue of said deed, dated on the day of , 18 — , made and published his last will and testament ; that thereafter, on the day of , 18 , said J B departed this life, and his said last will and testament was duly admitted to probate in the office of the clerk of the County Court of said county, an attested copy whereof, as well as the order of probate, are herewith filed, marked exhibits " B " and " C " respectively, and made part of this bill. This plaintiff, further complaining, says, that by said last will and testament the said J B devised to this plain- tiff the tract of one hundred acres of land in said '" Exhibit A " mentioned and described. This plaintiff further says that on the day of Octo- ber, 19 — — , the said plaintiff, then being the owner of said land in fee, sold and conveyed the same to the defendant, E. F., for the consideration of five hundred dollars cash in hand paid to this plaintiff, and on that day the said plaintiff signed and delivered a deed to the said defendant, E. F., for the said land, which was duly recorded in the clerk's office of the said county, an attested copy of which last named deed is herewith filed, marked " Exliibit D," and made part of this bill. Plaintiff further complains and says that on the said day of October, 19- — — , this plaintiff was an infant under twenty-one years of age, to-wit, of the age of nineteen years ; vs. Soper, 6 Gray. 279 ; "Henry vs. mount right, superior to all equities Fine, 23 Ark. 417; see also, Foss of other persons, and may be ex- vs. Hildreth, 10 Allen 76. ercised against bona fide purchasers A right of infants and insane from the grantee. Hovey vs. Hob- pprsons to avoid their deeds and son, 53 Me. 451, 89 Am. Dec. 705. contracts is an absolute and para- 1042 EQUITY PEOCEDUKE. that plaintiff has now attained his majority, having arrived at the age of twenty-one years on day of , 19 . This plaintiff, further complaining, says, that since attain- ing to his majority he desires to, and does, disafErm the said act and deed selling and conveying the said land to the said defendant, and so informed the said defendant and requested the said defendant to reconvey the said land to this plaintiff, which the said defendant declined and refused to do, and still declines and refuses to do ; unless this plaintiff shall pay to the said defendant the said sum of five hundred dollars, pur- chase money as aforesaid, with its interest thereon from the day of its receipt by this plaintiff as aforesaid ; but this plain- tiff avers that he has spent said five hundred dollars, and that there is no sum thereof remaining in the hands of this plain- tiff, and that this plaintiff is unable to repay to the said de^ fendant the said sum of five hundred dollars with its interest thereon, or any p'art thereof. Plaintiff therefore prays that said deed may be cancelled, declared null and void, and held for naught; that the said de- fendant may also be required in addition thereto, in order to preserve the chain of title as matter of record in the clerk's office of the County Court of said county, to reconvey the said land to this plaintiff, and grant unto this plaintiff such other and further relief as the court may see fit to grant, and as in duty bound he will ever pray, etc. H. & K., A B , Solicitors for the Plaintiff. By Counsel. ^'^ 2« This form is intended to illus- ance after he has attained his ma- trate the right of infants to cancel joriiy. a deed or other instrument made On the first of these questions during infancy after attaining to Judge Green, in Gillespie vs. Bailey, his majority. Usually in cases of 12 W. Va., pp. 92-93, says: " It is this kind two questions arise: clear that if he has the considera- First. Whether the suit can be tion in kind which he received for maintained without returning the such land, he must return it to tlio consideration or property received purchasers when he elects to set by the infant; aside his contract of sale, or the Second. Whether there has been sale; and in such case it is imma- sueh acquiescence on the part of the terial whether the contract be ex- infant as to amount to an affirm- ecutory, or executed; whether he POEMS ORIGINAL BILLS. 104:3 -No. 87. §908. For the cancellation of a written instrument because of the fiduciary relationship of the parties. The bill of complaint of G— W , B F W and John W against A G R and L C — — D , filed in the Circuit Court of Mason County, West Virginia. made a deed for the land or not. He must in every case when he avoids a contract executory or ex- ecuted, made during his infancy, re- turn any property which he has re- ceived as the consideration of the contract, and which he still has in his possession. But if during his infancy he has wasted, sold or other- wise ceased to possess the property which is the consideration of his contract, so that he cannot return it, or cannot return it except in its deteriorated condition, such inabil- ity will not hinder him from avoid- ing his contract generally. See Mustard vs. Wohlford, 15 Gratt. 343; Bedinger vs. Wharton, 27 Gratt. 857 ; Boody vs. McKinney, 23 Me. 517; Price vs. Ferman, 27 Vt. 271; Robbin vs. .Eaton, 10 N. H. 562; Fitz vs. Hall, 9 N. H. 441. A distinction has, as we shall present- ly see, been taken in some cases be- tween an executory and an executed contract, and it may be regarded as questionable, whether, the rule above laid down is applicable to executed contracts, though its ap- plication to executory contracts seems to be well settled. In the language of Judge Moncure in Mus- tard vs. Wohlford, 15 Gratt. 343: ' If the infant has delivered posses- sion of land contracted to be sold by him, he has an unconditional right to recover it back in an action at law; and a court of equity will not restrain him from doing so, nor impose terms on the exercise of his right.' " Tlie learned Judge in the course of his opinion in this case further says : " In Smith vs. Evans, 5 Humph. 70, it was held in the ease of an executed sale by an infant, if he disaffirms and seeks to recover back the articles sold, he must re- turn the purchase money or other consideration. So also Badger vs. Phinney, 15 Mass. 359, and in Hill- yer vs. Bennett, 3 Edw. Ch. 222, it was further held, that if he goes into a chancery court to set aside a. conveyance, because executed while he was an infant, he must offer to restore the purchase money. The Court of Appeals of Virginia in the case of Mustard vs. Wohlford declined to express any opinion, as to the correctness of the decision in these eases, or any opinion upon the distinction drawn in them, be- tween executed and executory con- tracts and in that case only decided, that if the contract for sale of land is executory, the infant is not bound, when he disaffirms such con- tract, to refund the purchase money received by him when an infant. In the case of Bedinger vs. ^ATiarton, 27 Gratt. 857, the court reaffirms the principles laid down in Mustard vs. Wohlford; they say in this case: ' that where a contract is executory merely, it is very clear that it can 1044 EQUITY PROCEDUEE. The plaintiff complains and says that on the day of , 18 , B W departed this life, after having first made his last will and testament, which was afterwards be avoided by an infant after at- taining lawful age without restor- ing anything, which may have been received by him in consideration of the contract and may have been consumed by him during infancy, or not remain in his hands on his arrival at lawful age; but whether or not the same principle applies to the case of an executed contract, has never yet been decided by this court ' and they decline again to express any opinion on this point though an examination of the ease will show that the contract in this ease was an executed contract being a deed duly delivered and the land sold, put in the possession of pur- chasers, and all the purchase money paid." In Abernethy vs. Phillips, 82 Va. 773, 1 S. E. Rep. 113, the court said : " It is undeniably true that if infants enter into contracts, and after becoming of age repudiate their contracts, they must make res- titution of the consideration remain- ing in kind, in their hands." With reference to the second ques- tion, relating to acquiescence on the part of the infant. Green, J., in Gil- lespie vs. Bailey, supra, says: " There is an obvious distinc- tion in this respect ~ between the case where an infant has purchased land and retained the possession after attaining his full age, and the case, where he has sold land and had after his majority permitted a considerable time to elapse without disaifirming the sale. There are decisions or dicta to the effect that the infant must in case of a sale declare his disaffirmance in a reasonable time. See Klein vs. Bebee, 6 Con. 494; Holmes vs. Blogg, 8 Taunton 35; Richardson vs. Bright, 9 Ver. 368. But these dicta or decisions are contrary to reason and tlie great weight of authority. The true doc- trine is that mere acquiescence where an infant has sold land, though extended to an unreasonable length of time, will not amount to an affirmance: New Hampshire M. F. I. Co. vs. Noyes, 32 N. H. 351; Irvine vs. Irvine, 9 Wallace, 626; Voorhees vs. Voorhees, 24 Barbour 153; Tucker vs. Mooreland, 10 Pet- ers 59, and notes thereto; 1 Am. Leading Laws, 316 ; Drake vs. Ram- sey, 5 Ohio, 251 ; Gressinger vs. Welch, 15 Ohio 156; Boorly vs. Mc- ICinney, 28, 517. But though mere acquiescence for an unreasonable time will not, where an infnnt has sold land, amount in law to an affirmance of the sale, yet it will amount to such affirmance under certain circumstances — • as when the infant for several years, without any objection to the sale, stood by and saw the purchaser making large expenditures upon the land bought, in valuable improvements: See Wharton vs. East, 5 Yerger 41 ; Wallace's Super, vs. Lewis, 4 Har- rington 75. So, too, though the purchaser has not put valuable im- provements on the land bought, still if he has been in actual possession of it for a period (since the infant attained his majority) sufficient to bar its recovery by another, if this possession had been adversary, such acquiescence under these circum- stances, would legally amount to an POEMS - ORIGIKAL BILLS. 1045 duly probated in the clerk's office of the said county, attested copies of which will and the order admitting the same to pro- bate, marked respectively ' exhibits "A" and " B," are here- affirmance of the sale: See Drake vs. Ramsey; Gressinger vs. Lessee of Welch; Voorhees vs. Voorhees, etc.; Tucker et al. vs. Moorelaud, supra." It is not necessary, that an infant may disavow his act, to do more than to bring his suit for cancella- tion or rescission thereof within the proper time. Birch vs. Linton, 78 Va. 584. The right to cancel an instrument because of the infancy of one of the parties inures to the benefit of the other party, though such other par- ty may not have been an infant at the time the instrument was exe- cuted, if when the infant becomes of age he, himself, disaffirms the act which he did during his minority. McCarty vs. Woodstock Iron Co., 92 Ala. 463, 8 So. Rep. 417, 12 L. E. A. 136, note, in which is consid- ered the acts necessary to disaffirm an infant's contract. A further question arises with ref- erence to acts of infants, and that is as to the time an infant has, after arriving at majority, within which he may disaffirm his eon- tracts made during infancy. On this question there is a well pre- pared note appearing in vol. 55, Cent. Law Jour. 492-3, which is here appended. " On the question thus stated the authorities are ir- reconcilably in conflict. The ma- jority of the authorities take the broad and liberal attitude an- nounced by the court in the prin- cipal case, and hold that the deed or contract of an infant may be avoided at any time after becoming of age, until he is barred by the statute of limitations, piuvided there has been no word or act on his part indicating assent. Well.-i vs. Seixas, 24 Fed. Rep. 82; Lacy vs. Pixler, 120 Mo. 383; Donovan vs. Ward, 100 Mich. 601, 59 N. \\'. Rep. 254; Gillispie vs. Bailey, 12 W. Va. 70, 29 Am. Rep. 381; Gil- terson vs. Miller, 74 Fed. Rep. 131; Emmons vs. Murray, 16 N. H. 385; Hill vs. Nelms, 86 Ala. 442; Mc- Murray vs. McMurray, 66 N. Y. 175; Davis vs. Dudley, 70 Me. 236; Birch vs. Linten, 78 Va. 584, 49 Am. Rep. 381; Fox vs. Devery, 62 Ark. 316; Cresinger vs. Welch, 15 Ohio 156. Thus in Donovan vs. Ward, supra, two infant heirs join- ed with their co-heirs in the execu- tion of a quit claim deed of the common inheritance. Several con- veyances of the land were made and the lands were in the hands of bona fide purchasers when the two heirs, eight years after at- taining their majority, brought ejectment to recover their in- terest in the land. The evidence showed that the plaintiffs learned of the execution of the deed at tlie time of their majority; that no improvements had been made on the land by any of the holders thereof, nor had either of the plaintiffs done anything indicating an affirmance or ratification of a deed. The court held that disaffirmance under such circumstances would be reasonable if made at any time within the period prescribed by the statute of limitations. The other line of au- thorities hold that a minor who has made a contract or deed of convey- ance must disaffirm his deed within 1046 EQUITY PEOGEDOEE. with filed and made part of this bill. say that by the said bill G E executor and qualified as such. Plaintiffs furtlier say that one X- in chancery against G E J — These plaintiffs further J was appointed as — Y brought suit a reasonable time after coining of age, or be barred of the right. Holmes vs. Blogg, 8 Taunt. 38; Jamison vs. Smith, 35 La. Ann, 609; Hastings vs. Dollarhide, 24 Cal. 195; O'Dell vs. Rogers, 44 Wis. 136; Goodnow vs. Lumber Co., 31 Minn. 468, 47 Am. Rep. 708 ; Feath- erson vs. McDonald (Canada), 15 N. C. C. P. 162; Richardson vs. Pate, 93 Ind. 423; Richardson vs. Boright, 9 Vt. 368; Walton vs. Gaines, 94 Tenn. 420; Kline vs. Beebe, 6 Conn. 494; Wallace vs. Lewis (Dela.), 4 Harr. 80; Searcy vs. Hunter, 81 Tex. 644, 26 Am. St. Rep. 837. In some cases statutes provide that an infant must dis- affirm within a reasonable time. Iowa: Green vs. Welding, 59 Iowa 679, 44 Am. Rep. 696; Wright vs. Germain, 21 Iowa 585. Georgia: Bentley vs. Greer, 100 Ga. 35. Ne- braska : Englebert vs. Troxell, 40 Neb. 195, 58 N. W. Rep. 852, 42 Am. St. Rep. 665. As to what is a rea- sonable time, there is also an ir- reconcilable conflict in the author- ities. Bing'ham vs. Barley, 55 Tex. 28, recognizes the rule that when mere lapse of time is relied upon to defeat the right of avoiding the deed, it must be such as under all the circumstances, will rebut any presumption of any intended dis- affirmance. This rule is doubted in Searcy vs. Hunter, 81 Tex. 844, which holds that the question of " reasonable time " in such eases is entirely a question of fact to be determined under all the circum- stances of each case. In Ward vs. — J , executor as aforesaid, Laferty, 19 Neb. 429, three years was held not a reasonable time within which to disaffirm. In WrigRt vs. Germain, supra, a minor about 16 years of age exchanged land of his for other land which had a mill on it. The mill was subsequently washed away, without gross carelessness on the minor's part, but without ordinary care. Two years after he reached major- ity, the last year having been spent in the United States military ser- vice, he brought suit to avoid his conveyance. The court held that his disaffirmance was not within a reasonable time. In Englebert vs. Troxell, 40 Neb. 195, it was held that a, disaffirmance of a deed within one month and three days after reaching majority was within a reasonable time. Three years was, however, held to be a reasonable time in Blankenship vs. Stout, 25 111. 132. In Keil vs. Healey, 84 111. 104, it was held that an infant must dis- affirm within three years. In Weav- er vs. Carpenter, 42 Iowa 343, it was held that thirteen years after reaching majority was not a rea- sonable time within which to dis- affirm a deed, even if there were fraud in its execution and the in- fant did not discover the fraud until that time. In Davis vs. Dud- ley. 70 Me. 236, nine years was held not a reasonable time. Im- provements had been made upon the land in this case vnth the knowl- edge of the infant. In Ferguson vs. Railroad, 73 Tex. 344, 349, it was held that two years was not a FORMS OEIGINAL BILLS. 1047 and others, in the Circuit Court of said county, to subject cer- tain lands of the estate of B W to sale for the pay- ment of his debts; and that by a decree duly entered in said reasonable time. In this ease the deed was made by the infant only six months before attaining major- ity, and the grantee did not know nor have any reason to suspect that he was an infant. In Land Co. vs. Sanford (Tex), 24 S. W. Rep. 587, four months was held a reasonable time. In O'Dell vs. Rogers, 44 Wis. 136, three years was held not un- reasonable where the infant had been all the time a non-resident and had no knowledge of any change in the value or situation of the property. Three and one-half months, however, was held a , rea- sonable time in a subsequent case from this State. Thormaehlen vs. Kueppel, 86 Wis. 378, 56 N. W. Rep. 1089." An infant's deed may be disaf- firmed by subsequent conveyance of the same land by the infant after attaining his majority: Peterson v. Laik, 69 Am. Dec. 441, and col- lected cases in note thereto 443; Youse vs. Norcombs, 51 Id. 175, and note 183; or by an actual en- try on the land for the purpose of disaffirming the deed: Bool vs. Mix, 31 Id. 285; or by doing any act of equal solemnity with the deed: Breckenridge's Heirs vs. Ormsby, 19 Id. 71; or by doing some other act clearly evincing his intention to defeat the conveyance: Bool vs. Mix, 31 Id. 285; Roberts vs. Wiggin, 8 Id. 38. An entry up- on the land is not necessary to avoid the deed: Youse vs. Nor- combs, 51 Id. 175. See note to Haudd vs. Meyers, 76 Am. Dec. 418. Conveyances of land by an infant cannot be conclusively avoided un- til after the infant has attained his majority. Note to Tucker vs. More- land, 1 Am. Lead. Cas. 257; Tyler on Inf. & Gov. 66; Roof vs. Staf- ford, 7 Cow. 183; S. C. 9 Id. 626; Bool vs. Mix, 17 Wend. 119; Mat- thewson vs. Johnson, 1 Hoff. Ch. 560; Hastings vs. Dollarhide, 24 Cal. 195; Dunton vs. Brown, 31 Mich. 182; Dixon vs. Merritt, 21 Minn. 196. Personal contracts, general- ly, may be avoided either before or after arriving at age. Note to Tucker vs. Moreland, 1 Am. Lead Cas. 258; Tyler on Inf. & Gov. 68^ 69; Stafford vs. Roof, 9 Cow. 626 Shipman vs. Horton, 17 Conn. 481 Garr vs. Clough, 26 N. H. 280 Willis vs. Twambly, 13 Mass. 204 Bailey vs. Bamberger, 11 B. Mon- roe, 113; Gaffney vs. Hay den, 110 Mass. 137; S. G., 14 Am. Rep. 580; but see Boody vs. McKenny, 23 Me. 517; Farr vs. Sumner, 12 Vt. 28; Dunton vs. Brown, 31 Mich. 182. But by statute in Iowa disaffirmance in any case before majority is of no effect. Murphy vs. Johnson, 45 Iowa 57. As to contracts for per- sonal service by a minor it is held in Squires vs. Hydliff, 9 Mich. 274, and Spicer vs. Earl, 5 Gent. L. J. 186, that so far as the infant has executed such contract without dis- sent, he cannot, after attaining his majority, disaffirm it, unless it ap- pears to have been fraudulent or unreasonable. See Philips vs. Green, 13 Am. Dec, at p. 132. A conveyance of land may be avoided by an infant by entry, eject- ment, writ dwm fuit infra aetatem, by another absolute conveyance af- ter attaining his majority, or indeed by any act manifesting unequivocal- 1048 EQUITY PEOOEUUEE. suit tke defendant A G K was appointed spe- cial commissioner to sell said land; that on the 14th day of October, 18 , the said A G K , as said special commissioner, sold a tract of one hundred acres of said land at public auction, as required by said decree, and that one T A B became the purchaser thereof at the price of one hundred and sixty dollars ; that on November 19, 18 — , said sale was confirmed and by a subsequent decree said commissioner was directed to convey the said land to the purchaser ; that said R , as such special commissioner, did, by deed dated Jan- uary 11, 18 , convey the said land to the said defendant L C- D ; and by deed of same date said L C D and wife conveyed the same to the said A G E. , all of which will more fully and at large ap- pear from said deeds themselves which have been duly admit- ted to record, attested copies of which are herewith filed, marked respectively exhibits " C " and " D," and made part of thi'^ bill. These plaintiffs further complain and say that the sale of said one hundred acres of land by said A G E as commissioner to said L C D was fraudulent and void; that in fact said E was the real purchaser of said land, the said L C D having purchased it under a secret agreement and understanding with said E that the latter was to become the owner of it ; that said E has enjoyed the rents and profits of the said land for nearly ten years, and sold therefrom a large quantity of valuable tim- ly his intention to avoid it. Note non, 6 Ga. 382; Norcum vs. Shea- to Tucker vs. Moreland, 1 Am. han, 21 Mo. 25; Scranton vs. Stew- Lead. Cas. 257 ; Roberts vs. Wig- art, 52 Ind. 69 ; Illinois, etc., Co. vs. gin, 8 Am. Dec. 38; Irvine vs. Ir- Bonner, 75 111. 315; Allen vs. Poole, vine, 9 Wall. 617; Dixon vs. Mer- 54 Miss. 323, 2. In the case of ritt, 21 Minn. 196; Hastings vs. mere personal contracts " the avoid- Dollarhide, 24 Cal. 195; Mustard ance may be by any act clearly dem- vs. Wohlford, 15 Gratt. 329; Bool onstrating a. renunciation of the vs. Mix, 17 Wend. 120; Green vs. contract." Note to Tucker vs. Jlore- Green, 69 N. Y. 553; Scott vs. Bu- land, 1 Am. Lead. Cas. 258. and chanan, 11 Humph. 469; Drake vs. cases cited. See Philips vs. Green, Ramsey, 5 Ohio 251 ; Cresinger vs. supra. Welch, 15 Id. 156; Harris vs. Can- FOBMS ORIGINAL BILLS. 1049 ber worth one thousand dollars, and appropriated the same to his own use; that the said land is worth now not less than the sum of two hundred and fifty dollars, and will sell for that at any time. These plaintiffs further say that they are the sole devisees and distributees of the will of said B W , and are in- terested as such in the sale of said land. Plaintiffs are advised and so aver that the said A G E , in his fiduciary capacity of special commissioner, could not become the purchaser either directly or indirectly of said land sold by him as such special commissioner as aforesaid. The plaintiffs therefore pray that the said sale of lands by the said A G E and the purchase thereof by the said L C D as aforesaid may be set aside and held for naught; that the deed from the said L C D and wife to the said A G E, may also be set aside and held for naught ; that there may be an accounting taken of the rents, issues and profits derived from the said real estate by the said A G R ; that the said A G E may have credit thereon for the said purchase money with its interest, together with anj' and all taxes paid by him on the said real estate; that a decree for the balance may be entered in favor of these plaintiffs against the said A G E , and grant unto these plaintiffs such other further and general relief as the court may see fit to grant, and as in duty bound they will ever pray, etc. G W , B W and John W , G— L H , By Counsel." Solicitor for the Plaintiffs. 27 The form above given is formu- pies involved in such cases the court lated from the principles announced held as follows: in Winans vs. Winans, 22 W. Va. 1. "A purchase by a, fiduciary, 678, and Newcomb vs. Brooks, 16 while actually holding a fiduciary W. Va. 32. In this latter case, relation, of trust property, either after a full and exhaustive exami- of hirnsplf or of the party to whom nation of the authorities -and princi- Tie holds such fiduciary relation, ia 1050 EQUITY rKOCEDUEE. No. 88. §909, For the cancellation of a written instrument because of drunkenness. (After the usual caption and commencement.) 1. That the plaintiff and defendant were on the day of , 19 , engaged as partners under the firm name and style of A B & Company, doing a retail dry goods and notion business, which was conducted in the town of Debby, in the County of and State of , and in which business they had been engaged for years. II. Plaintiff further says that during the last year or so of the business their sales had greatly decreased, but not to the ex- tent of which this plaintiff is now aware, inasmuch as the de- fendant had personal charge of the business, remaining in the store and buying and selling all the goods handled by them as partners aforesaid. III. This plaintiff further says that on the said day of , 19 , while plaintiff was very drunk, so much so that he did not realize what he was doing nor appreciate or un- derstand any act of business, the said defendant induced this plaintiff to buy his interest in the said store for the sum of six voidable at the option of the party fiduciary occupied the fiduciary re- to whom he stands in such relation lation may at his option avoid the although the fiduciary may have sale, though the property has given an adequate price for the passed into the hands of a sub- property and gained no advantage sequent purchaser with notice, whatever. 4. " But if the sub-; urchaser had 2. "A fiduciary cannot make a no notice of the character of his valid purchase of the trust proper- vendor's title, the sale cannot be ty, though it be at a public judicial set aside, but the party can have sale under a decree made in an redress against the fiduciary per- adversary proceeding. Any such sonally to the extent of the profit purchase may be avoided at his op- he made by the re-sale. tion by any party to whom he holds 5. " But when such sales are such fiduciary relation. sought to be avoided, the suit for 3. " If a fiduciary purchases the purpose must be brought in a trust property and then resells it to reasonable time, though the prop- a purchaser for valuable considera- erty remains in the hands of the tion with notice of the character of fiduciary." his title, the person to whom the FORMS OKIGINAL BILLS. 1051 thousand dollars, and in settlement and payment of which the plaintiff executed and delivered to the said defendant his two negotiable promissory notes in the sum of three thousand dollars each, payable in one and two years respectively, with interest, and thereupon the said partnership was dissolved and the said defendant retired therefrom. IV. This plaintiff further avers that the said defendant in- duced this plaintiff to become intoxicated with a view to selling to this plaintiff his interest in the said store at the price afore- said, although this plaintiff did not appreciate and understand the motives and object of the said defendant in inducing this plaintiff to drink to the extent of becoming drunk in the man- ner hereinbefore alleged until after this plaintiff had become sober and learned to understand and appreciate the situation. V. This plaintiff further says that the stock of goods on hand on the day the said notes were given did not amount to over three thousand dollars, though the said defendant by his false representations and assurances made to this plaintiff while drunk as aforesaid, induced this plaintiff to believe, and this plaintiff did believe that there were ten thousand dollars' worth of goods in said store, including the outstanding solvent ac- counts due to the said firm. VI. Plaintiff further says that when the debts of the said firm are all settled and all the money collected that is collectible, there will be no assets whatever due the said firm to divide be- tween this plaintiff and the said defendant, so that the said defendant now holds the said negotiable notes of this plaintiff without any consideration therefor to support them. VII. Plaintiff further says that the said defendant is insol- vent and now declares his intention to negotiate to innocent third parties the said negotiable notes, and so thereby embarrass the said plaintiff in the assertion of his equities against the said notes, if such transfer shall not entirely defeat and destroy plaintiff's right to interpose any equities of defense to the said notes in any suit thereon in an action at law. VIII. This plaintiff therefore prays that an injunction may be awarded him against the said defendant restraining and in- hibiting him from transferring and disposing of such negotiable 1052 EQUITY PEOGEDU.EB. notes in any manner whatsoever ; that the same may be can- celled, set aside and held for naught; and grant unto plaintiff such other further and general relief as to equity may seem meet, and as in duty bound he will ever pray, etc. G M , A B , Solicitor for Plaintiff. By Counsel.^' No. 88a. §910. To carry decree into execution. (After the title and address.) Complaining, shows unto your honor your orator, A. B., of, etc., that your orator, on or about , filed his bill of complaint in this honorable court against C. D., stating (set out substance of a bill for partition), and praying (set out prayer verbatim). And your orator further shows that, process of subpoena be- ing served upon the said defendant, he appeared to the said bill and put in his answer thereto, to which a replication was filed. And the said cause being at issue, the same came on to be heard before your honor on or about , when a de- cree was made by your honor directing that a commission should issue to certain commissioners to be therein named, to make partition of the estate in question, and that the said estate was to be divided and separated, one-third part thereof set out in severalty, and declared to belong to the said C. D. and his heirs, and the remaining two- thirds part thereof declared to belong absolutely to your orator, to be held in severalty, by him ; and the respective parties were decreed to con-roy their several shares to eacJi other, to hold in severalty, according to their respective undivided shares thereof, and that it should be re- ferred to P. G., one of the masters of this court, residing in 26 As to when and under what cir- sec. 59. See also in this connertion. eumstances an instrument will be Loftus vs. Maloney, 89 Va. 576. 16 cancelled on the <;round of drunken- S. E. Rep. 749. ness see Hogg's Equity Principles, FORMS ORIGINAL BILLS. 1053 the County of , to settle the conveyances, in case the parties differed about the same, as by the said proceedings and decree now remaining as of record in this honorable court, reference being thereunto had, will more fully appear. And your orator further shows unto your honor that the com- mission awarded by the said decree never issued, on account of the said C. D. going abroad, and being, until lately, out of the jurisdiction of this honorable court; but the said C. D. having now returned, and the inconvenience mentioned in your ora- tor's former bill still existing, your orStor is desirous of having the said decree forthwith carried into execution, but from the great length of time which has elapsed, and the refusal of the said C. D. to concur therein, your orator is advised the same cannot be done without the assistance of this honorable court. Your orator therefore prays that the said C. D. may be made defendant to this bill ; and that the said decree may be forth- with carried specifically into execution and the said C. D. or- dered to do and concur in all necessary acts for that purpose ; and grant unto your orator such other further and general re- lief as to your honor may seem meet, as in duty bound he will ever pray, etc. J. W. C, A. B., Solicitor for Complainant.^' By Counsel. ISTo. 89. §911. For contribution among co-sureties. (After the usual caption, address and commenpement.) I. That on the day of -, 19 , a judgment was rendered in the Circuit Court of County, in the State of , in favor of F. R., against A. B., this plaintiff and the defendants, C. D. and E. F., for the sum of $ . II. That execution against the property of the said A. B., 29 The form here given will be author from Wills' Pleadings in found in Fletcher on Equity PI. & Equity, ,391. Pr. 1018, and which is taken by the 1054 EQUITT PEOCEDUEE. C. D. and E. F., was issued upon the said judgment directed to the sheriff of the County of , and was by him levied upon certain goods and chattels found in said county which belonged solely to this plaintiff and no part thereof belonged to the de- fendant C. D. or the said defendant E. F. III. That said goods and chattels were sold on the day of , 19 — — , by said sheriff and the proceeds thereof, which amounted to $ , were applied to the payment and discharge of the said judgment, its interest, and the costs of the action. IV. The plaintiff further says that the said C. D., at the time said judgment was rendered was and now is insolvent and was unable, therefore, to pay any part of said judgment. V. Plaintiff says that he was and is only liable for the pay- ment of half of said judgment and that the said E. T. was and is liable to pay the other half ; and inasmuch as this plain- tiff was reVjuired to pay all of said judgment, the said defend- ant, E. E., is liable to make contribution to this plaintiff for his half of said judgment which now amounts with its accrued in- terest to»th'e sum of $ . Plaintiff therefore prays that the said E. F. may be required to contribute to the payment of his part of said judgment by paying to said plaintiff the said sum of $ , with interest thereon until the same shall have been paid, and that the plain- tiff may have a decree for the payment thereof against the said E. F., and grant unto this plaintiff such other, further and general relief as to equity may seem meet, and as in duty bound he will ever pray, etc. A B , J G D , By Counsel.^"' Solicitor for the Plaintiff. 30 In order to maintain a bill for applies lyhen one of several parties, contribution it must appear that who are liable for the payment of a the plaintiff used due diligence, common debt or obligation, dis- without effect, to obtain reimburse- charges the same for the benefit of ment from the principal debtor, or all. It is not founded on contract, that the debtor is insolvent. Hood but upon the general principles of vs. Margan, 47 W. Va. 817, 35 S. E. justice and equity; and upon the Hep. 911. further principle tha.t where the " The principle of contribution interest is common or mutual the FOEMS ORIGINAL BILLS. 1055 No. 90. §912. For the dissolution of a corporation in a court of equity. The bill of complaint of A B , C D and E F against The Aetna Salt Company, G H , I J , K L , M N and O filed in the Circuit Court of Mason County, West Virginia. The plaintiffs say : I. That The Aetna Salt Company is a corporation which was created and organized in April, 1889, under the laws of the State of West Virginia, for the purpose of manufacturing and selling salt and doing a general merchandise business in connection therewith, as will more fully and at large appear from its charter, a copy of which is herewith filed marked " Exhibit A," and made part of this bill. II. That the capital stock of said corporation is forty thousand dollars, all of which has been paid up, and that the present stockholders of the said company are these plaintiffs and the defendants, G H , I J , K L , M IsT and O P . III. That of the said capital stock of forty thousand dollars the said plaintiffs hold more than one-third. That is, the said A B holds five thousand dollars thereof; the said C — — D eight thousand dollars thereof ; and the said E E — — two thousand dollars thereof, and the residue of the said capital stock is held by all the defendants other than the said corporation. IV. That the said corporation began the manufacture and sale of salt on the day of , 18 , and has continued to do so until within the last twelve months, when it ceased to operate its salt works entirely and hath been idle ever since that day- V. That for the last four years of the time immediately burden shall likewise be so. And tributions may be enforced are though courts of law now assume among co-sureties, partners, tenants jurisdiction to enforce contribution in common, creditors, owners of ves- in some cases, this in nowise af- sels, wrong-doers, joint obligors, and fects the jurisdiction originally be- devisees and legatees." Hogg's longing exclusively to equity. Equity Principles, § 63. The usual instances wherein con- 1056 EQUITY PBOCEDUEE. preceding the day upon which the said corporation ceased to manufactiTre and sell salt, the business was conducted at con- siderable loss each year, and that to meet the loss thus in- curred by said corporation an assessment was made at the end of each year to meet and liquidate such indebtedness ; that the a'mount of these assessments varied with each year, but during the four ye^rs immediately preceding the day upon which said corporation ceased to conduct its operations of business the ag- gregate assessments thus paid in by all the stockholders was eleven thousand eight hundred dollars. VT. That the business for which said corporation was cre- ated is no longer profitable, and that it cannot be carried on so as to make it self-sustaining, and for that reason the stock- holders ceased in their management of said corporation to op- erate its works or to permit any business to be carried on by it. YII. That the property of said corporation is of such a nature that it very greatly deteriorates in value when not in use, and that it would be greatly to the interests of the stock- holders if the said corporation should be dissolved and its property sold under decree of this court, and plaintiffs aver that it is their desire for this to be done, as well as the desire of the other stockholders, with the exception of said M. X. and ,0. P. who, for some reason unknown to these plaintiffs, decline to enter into voluntary dissolution of the said corporation, so that it makee it obligatory upon these plaintiffs to go into a court of equity and ask this relief by a decree of dissolution. VIII. These plaintiffs therefore pray that they may have a decree dissolving the said corporation, and for the sale of its assets, and that they may have such other further and general relief as the court may see fit to grant, and as in duty boimd they will ever pray, etc. A B , c — D — ; and E F , H & H , By Counsel.''^ Solicitors for the Plaintiff. 31 The above form is drawn from Roanoke Building Association & In- the principles laid down in Weigand vestment Co., 98 Va. 445, 36 S. E. vs. Alliance Supply Co., 44 \Y. Va. Rep. 531. 133, 28 S. E. Rep. 303; Andrews vs. FOKMS OEIGINAI. BILLS. 1057 §913. In a creditor's suit against the estate of a decedent. (Title as shown in form No. 1.) I. Humbly complaining, sheweth unto your honor, your or- ator, A B , that he brings this suit on behalf of him- self and all other creditors of the estate of C D — — , de- ceased. II. That on the 6th day of January, 1902, the said C D died intestate, and. that E F was, on the 24th day of Afiril, in said year, duly appointed as administrator, gave bond and qualified, and ever since hath been and is now acting as such administrator. III. Your orator further sheweth unto your honor that on the day of , and in the lifetime of the said C D , your orator obtained a judgment against the said C D in the Circuit Court of County for eighteen hun- dred dollars, with interest thereon until paid, and the costs of suit, which amovmt to dollars, as will more fully and at large appear by reference to said judgment itself and a taxa- tion of said costs, certified copies of which are herewith filed as exhibits numbered 1 and 2 respectively, and made part of this bill. Your orator further sheweth that there was no part of said judgment paid during the lifetime of the said C D '-, and your orator had said judgment revived in the name of the said E E as his personal representative, and execution was issued thereon and returned without any property being found with which to pay the said judgment, as will more fiiHy and at large appear by reference to said ex- ecution and return thereon endorsed, copies of which are here- with filed as exhibits marked respectively numbers " 3 " and " 4," and made part of this bill. IV. Your orator further represents unto your honor that he is informed and believes and so represents that the estate of the said C D is largely indebted, and that there is no per- sonal property belonging to said estate out of which to pay the said debts. V. Your orator further represents unto your honor that 1058 EQUITY PEOCEDUEE. the said C D died, seized and possessed of certain real estate situate in the said County of , on the waters of Po- catalico river, in the district of , in the said county, con- taining about eight hundred acres, as appears from the title deeds therefor of record in the clerk's office of the county court of said county in Deed Books ISTos. 5, 7 and 9, reference being made thereto. VI. Your orator further sheweth unto your honor that said C D left him surviving M D as his widow, and P D , F D and J D as his only children and heirs-at-law, the last two of whom are in- fants under twenty-one years of age. VII. Your orator therefore prays that the said E Y , administrator of the said C J) , deceased, the said M D as widow, and the said F D , P D and J D his only children and sole heirs-at-law, he made parties defendant to this suit, that a suitable person be appointed guardian ad litem for the infant defendants ; that the administration accounts of the said E F may be stated ; that an account of all debts and liabilities of the estate of the said C D may be taken and their priorities ascertained and determined ; that the amount and value of the real estate may be also ascertained and deter- mined, and that all other accounts and orders which are proper may be taken and made in this cause ; and grant unto your ora- tor such other further and general relief as to equity and good conscience may seem meet, and as in duty bound he will ever pray, etc. J B M , W R G , A B , Solicitors for the Plaintiff. By Counsel.'^ 32 The form given above is found- by a creditor brought on behalf of rd upon the directions for the draft himself and all other creditors of ( f such a bill found in Sands' Suit the decedent's estate, ii Equity, (2d Ed.) 103-104; Ryan This is the proper method of 'S. McLeod, 37 Grat. 367; McCland- bringing a suit of this character; )i=!h vs. Keen, 13 Grat. 615. but it is not essential that the suit It will be observed that the form should be such in its inception as above set forth contemplates a suit shown by the authorities. FDEMS ORIGINAL BILLS. No. 92. 1059 §914. For the rescission of a contract of a corporation because the act is ultra vires. (After the proper caption and commencement.^ 1'. That he is a citizen and resident of the State of Indiana, A bill filed by a single creditor of a decedent's estate, or a single judgment-lien creditor of a living debtor, if in other respects proper, may by an order of reference to a commissioner and convention of ether creditors entitled to be pro- vided for in the suit, be converted into a creditors' suit, and it will be regarded as such from the time such order of reference is made. Arnold vs. Casner, 22 W. Va. 444. From a note to Suckley vs. Rotch- ford, 12 Gratt. (annotated Ed.) at bottom page 495, vre take the fol- lowing: And although the bill is not in form a, general creditors' bill, yet if the case stated and the relief eont&nplated and prayed are such as are contained in a general cred- itor's bill, it will be considered and treated as such. Thus, where a creditor files a bill against a, com- pany, alleging its insolvency, asking that the creditors be convened, that the amount of debts and assets be taken, and that a receiver be ap- pointed, it is a creditors' bill in substance and legal effect as if it had been framed as such in the technical form although the bill is not in so many words professed to be on behalf of himself and of other creditors. Piedmont & A. Life In8. Co. vs. Maury, 75 Va. 508. In Wil- liams vs. Newman, 93 Va. 724, 26 S. E. Rep. 19, the court says: "It is well settled that a suit in chan- cery, brought by one creditor against the estate of a decedent, although filed on behalf of himself only, may, by decree convening all the creditors and directing a state- ment of proper accounts, be convert- ed into a general creditors' bill, and from the date of such a decree it will be considered and will carry with it all the incidents and con- sequences attending the filing of a technical creditpr's bill." Beverly vs. Rhodes, 86 Va. 418, 10 S. E. Rep. 572; Rice vs. Hartman, 84 Va. 252, 4 S. E. Rep. 621 ; Hurn vs. Keller, 79 Va. 418; Paxton vs. Rich, 85 Va. 378, 7 S. E. Rep. 531 ; Garter vs. Hampton, 77 Va. 637; Ewing vs. Ferguson, 33 Gratt. 548; Gordon vs. R. F. & P. R. Co., 81 Va. 621. And though a creditor file a bill to subject personal and real estate of a deceased debtor to the payment of his debts say- ing nothing of other creditors, yet if he prays that the ad- ministration account may be set- tled, that an account of all debts and liabilities of the estate may be taken and their priorities be fixed, that the amount and value of real estate may be ascertained, and that all other accounts and orders which are proper may be taken and made, this is a creditors' bill. And under such a prayer a decree for a general account may be made; or all the creditors may be permitted to come in and prove their debts, or an order staying other suits may be made, and all the assets be admimstered 1060 EQUITY PROCEDUEE. and brings this suit on behalf of himself and all other stock- holders of the C & O Ey. Company/^ 2. Your orator further says that he now is and since the — — day of June, 1892, has been the owner of one hundred shares of the capital stock of the said C. & 0. By. Company, the capital stock of said company being ^61l.000,000, divided into shares of $100 each. 3. Your orator further shows that the said C. & O. Ey. Company is a corporation created by and organized and oper- ated under the general laws of the States of Virginia and West Virginia, respectively, and was such prior to the time of the making of the contracts hereinafter complained of, and as such then was and ever since has been engaged in operating, as a common carrier of persons and freight, a railroad extending from Newport News in the State of Virginia, on or near the waters of the Chesapedhe Bay, thence through said State to the city of Richmond in said State, thence further through said State to Taylorsville in said State, thence further through said State to the city of Covington, then into and through the State of West Virginia to a point on the Ohio River, whence said rail- road was extended and still extends by leased line or other means of control to the city of Cincinnati in the State of Ohio. 4. Your orator further says that the only powers pos- in the one suit. Duerson vs. Alsop, bill. Norvell vs. Little, 79 Va. 141. 27 Gratt. 229. Thus, where a bill 33 A bill of the above form must is filed by a single creditor against be brought by the plaintiff on be- an administrator and the heirs of half of himself and all other stock- a decedent to subject the real es- holders similarly situated, to annul tate descended to the heirs to the the contract complained of in the payment of his claims, although bill. The authorities applying here not in form a creditors' bill, it will are clear, ample and decisive. Clark become a creditors' suit from the on Corporation, 393, 394 f Rath- time the court makes an order re- bone vs. Gas Co., 31 Va. 798, 8 S. ferring the cause to a commissioner E. Rep. 570; Dunphy vs. Travelers' to convene the creditors by publica- Newspaper Ass'n, 146 Mass., S. C, tion,' and report the debts of de- 16 N. E. Rep. 426, 430, 431; Brewer cedent. Laidley vs. Kline, 23 W. vs. Theatre, 104 Mass. 378; Allen Va. .565. And a suit of distribu- vs. Wilson, 28 Fed. Rep. 677; De- tees to ascertain and pay the debts tr-oit vs. Dean, 106 U. S. 537; Dimp- of an estate, and to distribute the fell vs. Railway Co., 110 U. S. 209. surplus is substantially a creditors' FORMS OEIGINAI. BILLS. 1001 scssed by tlie said C. cl- 0- Ry. Company at the time of the mak- ing of said contracts hereinafter complained of, and the only powers which it could lawfully exercise were the powers inci- dent to the right to own, control and operate said railroad, and that it had no powers whatever other than the powers granted for the purpose aforesaid and those necessarily incident thereto." .5. That tlie said C. & 0. Ry. Company nas now, and had not, at the time the contracts hereinafter mentioned were entered into, any power whatever to engage in the business of trafBcking in coal or coke by means of buying and selling the same, or by means of guaranteeing the price thereof, and has now and had then no power whatever to deal in coal or coke as merchantable commodities by buying the same at the mines or ovens, for selling the same in the market, or guaranteeing the iwiee therefor to the producer, and had no aiithoritv or power whatever to so employ or embark any of its funds, earn- ings or capital, or for the purpose of purchasing any coal or coke, or for the purpose of taking, acquiring or holding any coal except as needful from time to time for the construction and operation of said railroad and its business, and that said railroad company had not, at the time said contracts herein- after mentioned were entered into, and has not now any power to guarantee to any person oi* persons a price for coal or coke to be sold in the markets by such persons. 6. But so it is, at some time during the years 1893 and 189Jf (the exact time your orator is not able to learn) the C. & 0. Ry. Company did enter into certain contracts with certain s* A stockholder who applies to a must be overthrown to extend relief court of equity for its summary in- to him. Eabe vs. Dunlap, ol N. .J. terferenee to protect his stock Eq. 403, 25 Atl. Rep. 959 ; BuTj^ess against the consequences of an act not vs. St. Louis R. Co., 99 Mo. 496, 12 prohibited by law, but in excess of S. W. Rep. 1050; Boj'ce vs. Mon- the power of the corporation, to be tank Gas Coal Co., 37 W. Va. 73, entitled to what he asks, must ap- 16 S. E. Rep. 501 ; Miners' DitcJi Co. ply promptly. He cannot wait to vs. Zellerbach, 37 Cal. 543; Lucas speculate upon the chances, but he vs. Transfer Co., 70 Iowa 542, 30 must came before the act of which N. W. Rep. 771 ; Bissell vs. Railroad he complains has bpcome the foun- Co., 22 N. Y. 259; Watt's Appeal, dation of rights or equities which 78 Pa. St. 370. 1062 EQUITY PEOCEDUEE. persons, coal companies and coal operators operating coal mines and coke ovens along its line of railroad in the State of West Virginia, whereby it did undertake and agree to purchase from them, and they did undertake and agree to sell and deliver to said railv^ay company, for long terms of years, none of v^hich terms have yet expired, or did guarantee to said persons a price for, great quantities of coal and coke, being as- much as 775,000 tons per annum, as your orator eha/rges on information and be- lief, making in all, as he charges upon like information and be- lief, as much as 5,615,000 tons, and that said railway company is obligated by said contracts to pay therefor during the life of said contracts an enormous sum of money, the amount of which is unknown to your orator, but which your orator on information and belief charges would not be less than four millions of dollars, and that all of said coal and coke covered by said contracts was purchased or the price therefor guaranteed by said railway company for the sole purpose of being sold again by it or foi* it in the market, and none was purchased for, needed or used in the operation of said railroad or its business. 7. Your orator says that among other contracts so entered into by said C. and 0. By. Company there are one or more with the defendant, the H. C. and 0. Company then and ever since operating extensive coal mines and coke ovens on the line of said railroads in West Virginia, whereby the said railway company did undertake and agree, as your orator charges on information and belief, to buy from said coal company, and said coal com- pany did undertake to sell and deliver to said railway company during a term o'r terms of years that have not yet expired and will not expire for many years yet, all the coal and all the coke that could be produced by said coal company at its mines and coke ovens on the line of said railroad during said time and at an agreed price amounting, as your orator charges and believes, to many thousands of dollars each and every year of said period, which amount said railway company has bound itself to pay. Tom- orator has and' can obtain no more definite information as to the nature of said contract as to the amount of coal and coke said railway company has been and will be required to purchase and pay for than as above stated; that the said coal FORMS OEIGIIfAL BILLS. 1063 company now is and for several years last past has been operat- ing extensive mines and coke ovens, said ovens not numbering less than one hundred, and will so continue to do during the life of said contracts, the product whereof said railway com- pany will be obliged to take and pay for at fixed prices in the future as it has done in the past, unless your orator obtains the relief herein sought. 8. That the price fixed or agreed upon in said contract with said H. 0. and G. Company exceeds the market value of said coal or coke or the value of said coal or coke to said railway com- pany, and said railway company has suffered great loss thereby, and the market price and vahie of said coal and coke to said rail- way company is likely to continue in the future to be less than the price said railway company is obligated by said contract to pay therefoi*, and that said contracts are now and will continue to be a source of great pecuniary detriment to said railway com- pany and to your orator as a stockholder thereof, and to all othef stockholders of said railway company. 9. Your orator says that one of the contracts existing between the said H. C. and C. Company and the C. and 0. By. Company was entered into with another party, but afterward assigned to said H. C. and C. Company and that said contracts were afterward, some time in 1895 or 1S96 modified so that said H. C. and C. Company might sell said coal to other parties acceptable to the C and 0. By. Company, said C. and 0. By. Company, however, guaranteeing to said H. C. and C. Company for said coal so sold payment at the prices named in said con- -tracts prior to modifications, the quantity so sold to be de- ducted from the amount agreed to be taken undetr said contract. 10. Your orator says that the said C. and 0. By. Company had not and has now no power whatever to make ot carry out said contracts, or any of them, or the said modifications thereof, and all the same are illegal and void ; that your orator did not until on or about the day of December, 1898,^^ know 35 In order to relieve against an that purpose, it must appear that act or contract alleged to be ultra the plaintiff was a stockholder in vires, by a stockholder of a corpora- the corporation at the time of the tion in a suit in equity brought for act complained of, or that the stock 1064 EQUITY PBOCJSDUEE. of the existence of any of said contracts and of the practices' thereunder, and that in the month of Jafiuary, 1899, your ora- tor demanded at a regular meeting of the board of directors of the C and 0. By. Company, that they, in the name of the said company, declare such contracts void, and that they refuse to further perform the same or permit them to be performed and to -bring an action, if necessary, in the name of the company to have the same annulled, and that if said board should fail to take such action that they call a special meeting of the stock- holders of the said C. and 0. Ry. Conifiany, to whom your orator could present his said grievances herein complained of; but that said board of directors of the C. and 0. Ry. Company refused to take any action whatever, as requested, or to do any- thing whatsoever looking to a repudiation of said contract. 11- Your orator further says that thereafter he obtained a special meeting of the stockholders of said C. and 0. Ry. Com- pany, on the day of March, 1899, which was held in the City of Richmond, in the State of Yirginia, and that at said meeting your orator requested the said stockholders to remove the said board of directors and elect another who would take steps to annul the said contract or decline to further perform the same on the part of the said C. and 0. Ry. Company, bul the said stockholders declined and refused to do anything witb reference to said matter whatever. All of which will more fully and at large appear by reference to the proceedings of the said board of directors and the said stockholders at their said last named meeting, certified copies of which are herewith filed, marked " Exhibits ISTos. 1 and 2," respectively, and made part of this bill. 12. That said railway company will persist and continue to carry out said contracts and said obligations hereinbefore menr tioned, in the future as it has done in the past, to the great and irreparable injury of said company and the stockholders thereof, including your orator, and that he does not possess and cannot obtain the necessary information to fix the amount of coal and has devolved upon him since by op- course of the opinion, citing Dimp- eration of law. Boyce vs. Montauk fell vs. Railway Co.. 110 U. S. 209, Gas Coal Co., 37 W. Va. 73, in the 3 Sup. Ct. Rep. 573. FORMS OEIGINAL BILLS. 1065 coke which the C. and 0. By. Company is obligated under said contracts to take by purchase from the said H. C. and C. Com- pany^ nor the prices which said railway company is obligated under said contracts to pay for said coal and coke and that such facts are peculiarly and exclusively within the knowledge of the defendants, and that discovery by the H. C. and C Company^ through its ofScers, books and agents is necessary, and that the defendant, /. A. M., is the president of said H. C. and C. Company. 13. Your orator says that this is not a collusive suit to confer on a court of equity jurisdiction of a case of which it otherwise would not have cognizance, and that your orator was a stockholder of the C. and 0. Ey. Company at the time of the transactions herein complained of.^" In consideration whereof, and forasmuch as your orator is 36 Whatever under the charter of a corporation and the general laws applicable to it, may fairly be re- garded as incidental to the objects for which the corporation is created, is not to be taken as prohibited/ Green Bay & M. K. Co. vs. Union Steamboat Co., 107 U. S. 100, 27 L. ed. 413. Where certain matters are em- braced in a contract which are ultra vires as to the contracting corpora- tion, these matters so included do not aflFect the validity of the eon- tract as to those things contained in it which are infra vires as to such corporation. Barth Gas Light Co. vs. Claffy,. 151 N. Y. 24. Whatever may fairly be consid- ered as incidental to the purposes for which a corporation was created is not to be taken as prohibited, but is as much granted as that which is expressed. Pittsburgh, C. &. St. L. R. Co. vs. Keokuk & H. Bridge Co., 131 U. S. 371, 33 L. ed. 1,57; Green Bay & M. E. Co. vs. Union S. B. Co., 107 U. S. 98, 27 L. ed. 413; EUerman vs. Chicago Junction R. & Union Stock Yards Co., 49 N. J. Eq. 217. If a contract is ultra vires, and a plaintiff has- received the benefits of it, he will not be heard to ques- tion its validity. Kadish vs. Gar- den City Equitable Loan & Bldg. Asso., 151 111. 531, 38 N. E. Rep. 237 ; Fort Worth City Co. vs. Smith Bridge Co., 151 U. S. 294, 38 L. ed. 167 ; Bissell vs. Michigan S. & N. I. R. Co., 22 N. Y. 258; Heims Brew- ing Co. vs. Flannery, 137 111. 309, 27 N. E. Rep. 286; Paniels vs. Tearney, 102 U. S. *15, 26 L. ed. 187; Union Nat. Bank vs. Matthew, 98 U. S. 621, 25 L. ed. 188 ; Hitch- cock vs. Galveston, 96 U. S. 341, 24 L. ed. 659. If it is possible, under any hypo- thetical condition of facts, for the act in question to be within the ex- press or implied power of a corpora- tion, the corporation will be estopped in a particular instance to say that the act in question is not withir such express or implied power, wher such a defense would be to the in- jury of an innocent third party: 1066 EQUITY PEOCEDURE. remediless in the premises at and by the strict rules of the common law, and the premises are only relievable in a court of equity, where matters of this kind are properly cognizable and relievable, your orator prays the aid of this honorable court, and that the defendant, The C. and 0. By. Company may be en- joined from in any manner carrying out, recognizing or fulfill- ing any of the contracts hereinbefore mentioned between it and the said H. C- and C. Company for the purchase of coal and coke as aforesaid, and to that end your orator further prays that the said H. C. and C. Company may be made a defendant to this bill, and also the said J. A. M., who is the president of the H. C. and C. Cotnpany, fully acquainted with all the business of the said H. C. and C. Company, and that the said Zf . C. and G. Company, may, if it can, show why your orator should not have the relief prayed for, and that the said J. A. M. may be required upon his corporal oath and according to his best and utmost knowledge, remembrance, information and belief, full, true, direct and perfect answer make to the following inter- rogatories : (The interrogatories referred to are omitted as be- ing unnecessary to he set out in this form.) And your orator prays for such other and further relief as to equity may seem meet and as in duty bound he will ever pray, etc. H C G and H W- G- Solicitors for the Plaintiff. By Counsel. (Add the necessary affidavit for verification.) and this, even if the act itself was vs. Shores, 97 U. S. 272, 279, 24 unauthorized and illegal. Citizens' L. ed. 889 ; Farmers' & JI. Bank vs. State Bank vs. Hawkins, 34 U. S. Butchers' k D. Bank, 16 N. Y. 125, App. 423, 71 Fed. Eep. 369, 18 C. 69 Am. Dec. 678 ; Stoney vs. Am. L. C. A. 78; Farmers' Nat. Bank vs. Ins. Co., 11 Paig-e 635; Madison & Sutton Mfg. Co., 6 U. S. App. 312, I. R. Co. vs. Norwich Sav. Soc, 24 52 Fed. Rep. 195, 3 C. C. A. 1, 17 Ind. 457; New York & N. H. R. Co. L. R. A. 595 ; Marshall County Sup- vs. Schuyler, 34 N. Y. 30 ; State ers. vs. Schneek, 5 Wall. 772, 784, Bd. of Agri. vs. Citizens' Street R. 18 L. ed. 556, 559; Ohio & M. R. Co., 47 Ind. 407, 17 Am. Rep. 702; Co. vs. McCarthy, 96 U. S. 248, 267, Miners' Ditch Co. vs. Zellerbach, 37 24 L. ed. 693, 695; Macon County Cal. 543, 99 Am. Dec. 300. ¥OKMS OEIGIlSrAI. BILLS. tOG7 JSTo. 93. §915. In a creditors' suit enforcing jadgment lien. The bill of complaint of A B , who sues on behalf of himself and all other lien creditors of C D , against C D , E— F^— , G H , I J— — and K L , trustee, filed in the Circuit Court of Monroe County, West Virginia. The plaintiff complains and says that on the day of , 18 , he obtained a judgment against the said C D in the Circuit Court of Monroe County, and in the State aforesaid, for the sum of dollars, with interest thereon from the date of said judgment until paid, and dollars, costs of the suit in which said judgment was rendered. All of which will more fully and at large appear from a certified copy of said judgment and the taxation of the costs of said suit, herewith filed, marked Exhibits " A " and " B," respec- tively, and made part of this bill. This plaintiff further says that prior to the rendition of said judgment in favor of this plaintiff said C D exe- cuted a deed of trust to the said K L — ■ — ■, trustee, to se- cure the payment of a certain debt, evidenced by note, payable to the said I J for two hundred dollars, as will more fully and at large appear by the said trust deed, duly of record in the clerk's office of the said county, an attested copy of which is herewith filed, marked " Exhibit C," and made part of this bill. This plaintiff further says that the said defendants, E F — — and G H , on the day of , 18 , obtained a judgment against the said C D for the sum of one hundred and forty-two dollars, with interest thereon from the date of judgment until paid, and dollars costs, as' will more fully and at large appear by reference to a certified copy of said judgment, together with the taxation of costs, here- with filed, marked, respectively, Exhibits " D " and " E," and made part of this bill. This plaintiff further says that on the day of , 18 , he caused an execution to be issued upon the said judg- 1068 EQI'lTY TKOCEDUEB. ment obtained by this lolaintiff, which was placed in the hands of the sheriff of ilonroe County, and subsequently returned by the said sheriff with the endorsement thereon made " Xo prop- erty found out of which the within execution can be made. (Signed) S J C , sheriff of Monroe County," all of which will more fully and at large appear by a certified copy of said execution, together with the return thereon, herewith filed marked " Exhibit F," and made part of this bill- (Or where no execution has issued within two years from date of judgment, in lieu of this paragraph aver that no execu- tion ever issued upon said judgment within two years next after the date of the rendition thereof. ) This plaintiff further says that at the time of the rendition of said judgment the said C D was the owner in fee of two tracts of land, situate in the District of , in the said county, and sold and conveyed to him, the said C D , by deeds bearing the respective dates of August 5, 1876, and October 27, 1882, which will more fully and at large appear from said deeds themselves, which are duly of record in the said county, attested copies of which are herewith filed marked, respectively, Exhibits " G " and " H," and made part of this bin. The plaintiff is informed and believes and so states the fact to be, that the first of the foregoing tracts of land contains about one hundred acres, and that the latter thereof consists of about seventy-two acres, and that this is the only real estate, the plaintiff is informed and believes and so avers, of which the defendant is the owner, or in which he has any interest. The plaintiff says that he brings this suit on behalf of him- self and all other lien creditors of the said C D , that the various liens against the said real estate may be properly adjudicated and their priorities determined and enforced against the said real estate. This plaintiff avers that his said judgment remains wholly unpaid, and is a binding and s\ibsisting lien upon all the said real estate ; that he is advised and so avers that the other judg- ment lien, as well as the trust lien, are also unpaid and consti- tute liens upon the said real estate, and if there are any ther FORMS ■ OEIGINAL BILLS. 1069 liens tliereon this plaintiff is unable to say by whom they are held, but the plaintiff believes and so states that no other liens exist against the said real estate. This plaintiff also avers that the rents, issues and profits of the said real estate will not, in five years, pay off and discharge the liens existing thereon. This plaintiff now prays that this cause may be referred to a commissioner in chancery to take and report the liens and their priorities upon said real estate ; that there may be a de- cree of sale, upon the return and confirmation of said report, of the said real estate, or so much thereof as may be necessary, to pay off and discharge the various liens thereon, and grant unto this plaintiff such other, further and general relief as the court may see fit to grant, and as in duty bound he will ever pray, etc. S- &S- A- Solicitors for the Plaintiff. By Counsel.'' ■■•s It will be observed that the form as given above sets out the is- suing of an execution upon the judgment of the plaintiff and the return thereon of " No property found out of -vyhieh the within ex- ecution can be made." This allegation is necessary in a suit of this kind in West Virginia, but it may be omitted in a suit of the same character in Virginia, ante, sec. 117, note. It will be observed that the form alleges that the rents and profits of the land of the judgment debtor will not satisfy the liens thereon within five years. If it be true that the rents and profits of the debtor's land in such case will not pay off and discharge the liens on his real estate it is advisable to so allege the fact so that if such fact be ad- mitted by the pleading the expense and delay, of taking proof to estab- lish this point will be thus avoided. The draft of this bill is founded upon the principles announced in 2 Barton Ch. PI. & Pr. (2d Ed.) 1285; ante, sees. 59, 117; Newland vs. Wade, 43 W. Va. 283, 27 S. E. Rep. 244. If no execution has issued upon the judgment within two years after the date of its rendition, then it is not necessary to aver the issuance of an execution on the judgment and a return of " No property found." Dunfee vs. Childs, 45 W. Va. 155, 30 S. E. Rep. 102, But the issuance of an execution in order to enforce a judgment lien is not required in any case as to judg- ments rendered before the act of March 13, 1891, was passed. Dun- fee vs. Childs, supra. 1070 EQUITY PEOCEDUEE. No. 94. §916. In a creditors' suit by an executor or administrator to sub- ject the real estate of the decedent to the payment of his debts. (After the usual caption, address and commencement.) I. That on the day of , 18 , the said C D died intestate, and that your orator .was on the day of , 18 , duly appointed as his administrator, gave bond and qualified, and ever since hath been and is now acting as such administrator. II. That the said C D at the time of His death owed a large number of debts, some of which were evidenced by judgments, and others by notes and open accounts, and that said judgments, notes and open accounts remain entirely unpaid, and the personal estate of said decedent is insufficient to pay the sum. III. That ere came into the hands of your orator, personal property to be administered, which was duly appraised, of the value of four hundred dollars, as will more fully and at large appear by this plaintiff's inventory thereof, and its appraise- ment, copies of which are herewith filed marked, respectively, Exhibits " 1 " and " 2," and made part of this bill. IV. That the said decedent left very considerable real es- tate, a part of which is situate in the County of , and the residue thereof in the County of , in the said State, as will more fully and at large appear from the said decedent's title deeds therefor, duly recorded in the said counties, attested copies of which are herewith filed, marked, respectively, numbers " 3," V. That the said decedent left R D , as his widow, and F and S D as his only children and heirs-at- law, who are made defendants to this bill. Your orator prays that his accounts as such administrator may be settled before a commissioner in chancery of this court ; that an account of all debts and liabilities of said C D may be taken and their priorities ascertained and determined; that the amount and value of the real estate may be ascertained ; FORMS ORIGINAL BILLS. 1071 that the personal estate, so far as it will do so, may be applied to the payment of the debts and liabilities of the said decedent; that all other accounts and orders which are proper may be taken and made in this cause, and grant unto your orator such other further and general relief as to equity may seem meet, and as in duty bound your orator will ever pray, etc. J F S , A B , By Counsel.' Solicitor for the Plaintiff. No. 95. §917. To have an instrument in the form of a deed declared to be a mortgage. (After the usual caption and address.) Your orator, A — — B , respectfully represents unto your honor that on the day of , 18 -, your orator being indebted unto one C — ■ — D , the defendant hereinafter named, in the sum of dollars, to secure the same with in- tsrest thereon at the rate of — - — per' cent, per annum, to be paid on the day of , 18 -, by an absolute deed of conveyance of that date, conveyed to the said C D in fee simple, that certain tract of land lying. in the District of , in the County of , and State of , more fully described in said deed of conveyance, a copy of which is duly of record in the clerk's office of the County Court of said county, an attested copy of which is herewith filed, marked " Exhibit 'No. 1," and made part of this bill- Your orator further represents that the said deed of convey- ance, although appearing to be absolute on its face, was not in- tended to be such by your orator and the said C D , but on the contrary thereof, it was expressly understood and agreed between them, that the same, and the said premises thereby conveyed, were to be held by the said C D sim- 33 The draft of this bill is predi- as to proper parties to and neces- cated on sees. 59, 117, of this work, sary allegations in such a. bill. 1072 EQUITY PBOCEDUKE. ply as a security for the payment of the said sum of money, and interest as aforesaid ^ and that upon the payment of that sum and interest to the said C T> — — , the said C D would reconvey the said premises to your orator by an absolute deed. Your orator further represents that he, your orator, has re- mained in the possession of said premises ever since the execu- tion of said deed, and is now in the possession thereof. Your orator further represents that he has paid all the inter- est due on the said sum of dollars, to the said C D , from the date of the said deed until, etc., when the said C D— ; refused to receive further interest thereon from your orator ; that your orator has always been, and still is, ready to pay the said C D — ■ — what is due to him for principal and interest on the said sum of money; and your orator well hoped that the said C D would have received the same, and that he would reconvey to your orator the said premises, as in justice and equity he ought to have done. But now so it is, may it please your honor, he, the said C D , in order to deprive and defeat your orator of the benefit of redeeming the said premises, does pretend and give out that your orator did not execute the said deed of conveyance to the said C D as a security for the repayment of the said sum of money, with interest as aforesaid, but does pretend that the said sum of — ■ — • dollars was paid to your orator in consid- eration of the absolute purchase of the said premises ; and that the said deed was not intended between the parties thereto to be a mere security for the said sum of money, and interest as aforesaid; whereas, your orator charges the contrary o-f such pretenses to be the truth ; and, upon the pretenses aforesaid, the said C D refuses to -come to any manner of accoimt with your orator, or to reconvey the said premises to him, al- though your orator has frequently, and in a friendly manner, applied to him for that purpose, and offered to pay him what- ever, if anything, should be found to be due to the said O D upon an account being taken, with reference to the said transaction. All of which actings, doings and pretenses of the said C ' D are contrary to equity and good conscience, FORMS ■ OEIGINAL BILLS 1073 and tend to the manifest wrong, injury and oppression of jovix orator. Your orator therefore prays that the said C D , who is hereby made a party to this bill, may be required to make full and direct answer to the same ; that an account be taken as to tie state of the accounts between your orator and the said de- fendant ; that if anything be found due the said defendant upon said accounting your orator offers to pay the same ; that the defendant may be compelled to reconvey the said premises to your orator by sufficient and proper deed of conveyance in fee ; and that your orator may have such other further and general relief as equity may require, and to your honor shall seem meet, and as in duty bound he shall ever pray, etc. J S S ; A B , Solicitor for the Plaintiff. By Counsel.*'' :^o. 96. §918. Of discovery merely. (To the Honorable , Judge of the Circuit Court of County : The bill of complaint of H. M. E., as administrator of the estate of G. S., deceased, against O. D., filed in the Circuit Court of County. And thereupon your orator complains and says : That on the day of , 18 ■, said O. D. brought against the Exchange Bank of , in the Circuit Court of County, her action of detinue to recover the sum of dollars of sil- ver coin of the United States, contained in fourteen linen bags, which had been left with said Exchange Bank of for safe- keeping on the day of , 188 — , by cfne W. D., who afterward stated said coin to be the property of the said 0. D. That your orator was, on the day of , 188 — , by the *o See the author's Eq. Prineip., sees. 337-347, where the subject of mistake is treated. 1074 EQUITY PEOCEDUEE. County Court of County, duly appointed administrator of the estate of G. S. of said county, deceased, who died intes- tate on the day of — ■ — , 18 , and that your orator duly qualified as such administrator on the day of , 188—. That your orator claims that said hags of coin were the prop- erty of his said intestate, and that as such administrator your orator is entitled to receive them.) Your orator further shows that the said Exchange Bank of appeared to the said action of detinue and filed an afii- davit of its cashier, stating that it had the said bags of coin in its possession and keeping ; that it made no claim to them, and that the same were left with it by W. D. on the day of ■ , 18 , for safe keeping, and that said W. D. subse- quently stated them to be the property of O. D., and that the property was claimed by your orator as administrator of G. S., deceased ; that the said Exchange BanJc of , did not collude with your orator as such administrator, but was ready to de- liver the said property to the owner thereof, as the court might direct ; and on motion of the said Exchange Bank of your orator was made a defendant in ,the said action of detinue and was required to state the nature of his claim to the coin and to maintain or relinquish the same. And your orator avers that as such administrator he appeared as required, claimed the coin as the property of his intestate and denied that the said O. D. had any title thereto ; that there- upon the court, on motion of said 0. C, directed an issue to be tried to ascertain whether the said coin or any part thereof was, at the time said action of detinue was instituted, the property of the said administrator, under which issue your orator was made plaintiff and said O. D., defendant; and that said issue is still pending and undetermined. Your orator further shows, upon information and belief, that for many years before and until the time of his death, the said G. S., deceased, resided in a house belonging to h-im in the said city of , a portion of which was used by him as a drug store and the remainder of which was used and occupied by FOKMS ORIGINAL BILLS. 1075 him as a dwelling; that for years before his death, the said G. S. had been in the habit of accumulating and hoarding coin; that some time before his death, the said G. S. concealed beneath the earth in a secret portion of the cellar of his said house, the silver money which is in controversy in the said action, and which at the time it was so concealed was the money and pi'op- erty of the said G. S. and of him alone ; that the said last men- tioned silver money remained in the said house until after the death of the said G. S., and that it remained concealed under the earth in the said cellar as afoi'esaid, either until after the death of the said G. S., deceased, or until the day beforer his death. Your orator further shows, likewise, on information and be- lief, that on. the said day of , A. D. 188 — , the said G. S., deceased, met with a sudden, violent and unexpected death, and that until the last named day the said G. S. was in his usual health and in no fear or expectation of, and having no reasona- ble or probable cause to fear or expect immediate or proximate death. Your orator further shows, upon information and belief, that the said O. D. claims to be the owner of the said silver money now in edntr'oversy in said action. Your orator further shows that in the view of the facts of which he has information and belief, he is advised and says that the said last mentioned silver money was the property of the said G. S. at the time of his decease, and now is the property of your orator. Your orator is advised and says that it is material for him, in order that he may properly maintain his side of the issue in said action, that he should have the discovery hereinafter prayed with reference to certain of the matters in this bill set forth. In tender consideration whereof, and forasmuch as your ora- tor is remediless in the premises save by the aid o-f a court of equity, your orator prays that the said O. D. may be made de- fendant to this bill and may be required to make full, true, di- rect and perfect answers to every of the following interroga- iories , that is to say : i^t. Wyiether for many years before aud until his death, the 1076 EQUITY PEOCEDUEE. said G. S., deceased, resided in the said city of , in a house belonging to him, a portion of which was used and occupied by him as a dwelling ? 2nd. Whether for years before his death, the said G. S. had been in the habit of acoumulating and hoarding money ? Srd. Whether some time before his death the said G. S. con- cealed beneath the earth, in a secret part of the cellar of his said house, the silver money which is in controversy in the said action ? 4-th. Whether at the time it was so concealed as aforesaid, the said last mentioned money was the money and property of the said G. S., now deceased, and of him alone ? 5th. Whether the said last mentioned silver money remained in the said house until after the death of the said G. S. ? 6th. Whethei" the- last mentioned money remained concealed under the eartb in the said cellar as aforesaid, either until after the death of the said G. S., deceased, or until the day before his death ? 7th. Whether on the day of , A. D. 188 — , the said G. S. met with a sudden, violent and unexpected death ? 8th. Whether until the day last named, the said G. S. was in his usual health and had no fear or expectation of and having no reasonable or probable cause to fear or expect immediate or proximate death ? Your orator also prays that a temporary injunction, until the further order of your honorable court, to be made upon full, true and perfect answers being filed to this bill, may be granted, restraining the said O. D., her attorneys, agents and servants, from further prosecuting the said action at law brought by her as aforesaid against the Exchange Bank of , and in which your orator has been made a party as aforesaid. H. M. R. , D. L. , Adm'r of G. S., deceased. Solicitor for the Plaintiff. , By Counsel.*^ (Here append the proper verification as shown in form No. 259 or 262.) 41 This form is taken from the 24 W. Va. 63. The report of the one iised in Russell vs. Diekeschied, case does not show the full text of i'OKMS 0B.1G1NAL BILLS. 1077 No. 97. §919. Of discovery in aid of defense at law. To the Honorable A. B., Judge of the Court of the County of- : Complaining show unto the court your orators, C. D. and L. M.J that one E. F. has instituted in the Circuit Court of the County of his certain action of assumpsit against your ora- tors, in which action the said E. F. seeks to recover of your orators the price of a certain horse alleged to have been sold by the said E. F. to your orators, the price thereof in the bill of particulars filed with the declaration in said suit being alleged to be $200. Your orators have filed in the said action two pleas : 1st, the plea of non-assumpsit; and 2nd, a special plea to the effect that the said E. F. warranted the said horse to be sound and free from defect. Your orators allege that the said E. F. made his bill of sale of the said horse to your orators, in which bill of sale the said E. F. covenanted to warrant, and did war- rant, the said horse to be sound and free from defect. The said bill of sale has been lost or destroyed, and your orators are un- able to produce the same on the trial of the said action, and your orators are unable to establish the said covenant by other tes- timony than the statement of the said E. F. And your orators further allege and charge that the truth of the matters afore- said would fully appear in case the said E. F. would set forth the covenants contained in the said bill of sale, and specially the covenant aforesaid warranting the said horse to be sound and free from defect. Your orators can and will establish on the trial of the said action by other evidence, that at the time of the sale of the said horse to your orators by the said plaintiff, the said horse was not sound and free from defect, but on the the bill, and what is contained in It will also be observed that it is the form in parentheses shows what stated in the form of the bill here has been added from the record in given that the discovery is abso- order to make the bill complete and lutely necessary for the purposes of intelligible. Tlie parenthetic marks the plaintiff's defense in the action are to be omitted in the draft of any at law. This is not necessary in a bill of discovery when the foregoing pure bill of discovery. Ante, sec. is used as a form for that purpose. 163. 1078 EQUITY PEOCEDUEE. contrary thereof was suffering then, and for a long time there- after, from the disease called the , and of that disease sub- sequently died, and was, and continued at, and from the time of sale, or shortly thereafter, until his death, wholly valueless to your orators. Your orators are advised that they cannot safely defend them- selves on the trial of said action without a discovery from the said E. F. touching said covenant in said bill of sale, and con- cerning the existence thereof, and forasmuch as your orators are remediless in the premises save by the aid of a court of equity, your orators pray that the said E. E. may be made a party defendant to this bill, and required to answer the same on his oath, that the said defendant may make a full and true discovery of all the matters aforesaid, and say whether or not at the time of selling the said horse to your orators, he, the said E. F., did not make a bill of sale of the said horse to them, and that the said E. F. disclose and say what were the covenants made by him in the said bill of sale according to the best of his knowledge, remembrance, information and belief. Your ora- tors pray that proper process may issue. And they will ever pray, etc. S., L., & C, C D , Solicitors for the Plaintiff. L M , By Counsel." A.dd affidavit for the verification of such a hill.) No. 98. §920. To obtain a divorce from the bonds of matrimony on the ground of adultery, and for alimony and an injunction. The bill of complaint of Jane Doe against John Doe, filed in the Circuit Court of Mason County, and State of West Vir- ginia. 12 This form is taken from Sands' contains more than is really neces- Suit in Equity (2d Ed.), pp. 81-83. sary to make it a valid bill of dia- As will be observed from reading covery, in that it avers the plain- chapter eight of this work, the form tiffs' inability to prove the matters FOEMS ORIGINAL BILLS 10Y9 I. Plaintiff complains and says that she is now and has been for more than one year next preceding the institution of this suit, a resident of the said State. II. Plaintiff further complains and says that on or about the 25th day of January, 1889, she was duly and legally mar- ried to the said John Doe in the County of Putnam and State aforesaid, as will more fully and at large appear by the mar- riage record of said county of that year, an attested copy of which is herewith filed as " Exhibit A " and made part of this bill.* III. And this plaintiff further complains and says that after said marriage, this plaintiff and the said defendant lived together as husband and wife continuously until the 6th day of July, 1901, when they separated and have not since co- habited. IV. This plaintiff, further complaining, says, that she and the said defendant last lived and cohabited together as hus- band and vidfe in the said County of Mason, and that this plain- . tiff now lives in the said County of Mason, as well also as the said defendant-** V. This plaintiff further says that there are now living two children, the offspring of said marriage, whose names and ages are as follows: Mary, aged five years, and James, aged three years. VI. And this plaintiff, further complaining, says that she is informed and verily believes, and therefore charges the fact to be, that the said defendant, disregarding the solemnity of his marriage vow, has since said marriage committed adultery, and had illicit carnal intercourse with one Mary Denn at the town of E , in the County of Jackson, and State of West Virginia, on or about the first day of December, 1900, and on divers times between that day and the 6th day of July, 1901. VII. This plaintiff, further complaining, says that the said defendant is the owner of (here describe the real and personal property owned by the defendant, if any, giving its value.) in the absence of the discovery aeter we have not eliminated that sought by the bill. But as this is part of it. usually found in forms of this char- 1080 EQUITY PEOCEDXJKE. VIII. This plaintiff, further compkining, says that she is poor and hath no means to support herself and children and to prosecute this suit ; and that the said defendant is able to sup- ply all the necessities of this plaintiff and her said children, but wholly refuses and neglects so to do, and that this plaintiff is now compelled to accept assistance from relatives and friends, in order to subsist from day to day, and that this plaintiff and said children are but poorly supplied with clothing and < her comforts suitable to their condition in life. IX. This plaintiff further says that the said defendant threatens, and this plaintiff is apprehensive that he will car- ry his threat into execution, that he will sell all of his prop- erty hereinbefore mentioned and described, to prevent this plain- tiff from obtaining alimony therefrom for the support of her- self and said children, and that said defendant ought to be restrained by injunction from this honorable court from selling, assigning and incumbering, or otherwise disposing of the above described property until the hearing of this cause, and until suitable provisions are made for their maintenance and sup- port. Plaintiff therefore prays that she may be divorced and for- ever freed from the bonds of matrimony now existing between her and the said defendant ; that the care, custody and education of the said children may be awarded to this plaintiff ; that this court will decree to this plaintiff such portions of the property of the said defendant, or such sums of money to be paid by the said defendant to this plaintiff as this court may deem proper and necessary for the maintenance of this plaintiff and said children ; that the defendant may be required to pay to this plaintiff a sufficient sum of money to enable this plaintiff to employ counsel and to prosecute this suit, and for the support of this plaintiff and the said children during the pendency thereof; that the said defendant may be restrained by an in- junction to be awarded by this court from selling, assigning, incumbering, or otherwise disposing of the property herein- before described, until the further order of this court ; and that FORMS ORIGINAL BILLS. 1081 this plaintiff may have such other and further relief as the court may see fit to grant, and as in duty bound she will ever pray, etc. Jane Doe, G &A , By Counsel." Solicitors for the Plaintiff. (Add the proper affidavit, post No. 259, if in West Virginia; or No. 262 if in Virginia. ) So. 99. §921. For divorce on the ground of impotency. (As in form No. 98 down to the *.) Plaintiff further complains and says that immediately after the said marriage took place your orator discovered that the said C B , at the time of her intermarriage with your ora- tor as aforesaid, was, and has continued to be naturally im- potent, and physically incapable of entering into the marriage state ; that, etc., (Here state the particular character of the im- potency) j so that the said marriage could not be consummated by the sexual intercourse of the parties. And the plaintiff further says that as he is informed and believes, and so charges the fact to be, that the said impotency and physical incapacity of the said C B still exists and is incurable. Plaintiff therefore prays that the bonds of matrimony now existing between the plaintiff and the said defendant may be dissolved, and that they may be forever divorced from each other and grant unto plaintiff such other and further relief as to 43 This form serves to illustrate The form here given is drawn the extent of the relief which may from those found in Puterbaugh, be afforded by a bill for a decree of Ch. PI. & Pr. (3d Ed.) 594-596. divorce. 1082 EQUITY PROCEDUEB. the court may seem meet, and as in duty bound he will ever pray, etc. A B- By Counsel.' S S- Solicitor for the Plaintiff. 1^0. 100. §922. To obtain a divorce a vinculo matrimonii because of peni- tentiary sentence. (As in No. 98 down to the **.) And this plaintiff further says that at the October term, 19 , of the Circuit Court of County, State of , and before the institution of this action, the defendant was duly convicted of a felony, to-wit, the crime of burglary, and duly sentenced by said court to confinement in the penitentiary of said State for years, and in pursuance of said sentence the defendant is now confined in the penitentiary. (Prayer as in form No. 99, and other averments as the case may demand, as in No. 98-) A B- By Counsel G I I^T , Solicitor for the Plaintiff. JSTo. 101. §923. To obtain a divorce from the bonds of matrimony because of conviction of an infamous offense. (As in No. 98 down to the **.) Plaintiff further says that prior to the solemnization of her marriage as aforesaid, to-wit, at the September term, 18 , ** This form is taken from Puter- incurable impotency of body as a baugh, Ch. PI. & Pr. (3d ed.) 590. ground of divorce, see Hogg's Eq. As to what constitutes natural or Princp., sec. 490. FORMS OEIGINAL BILLS. 1083 of the Circuit Court of County in the said State, the de- fendant was duly convicted of an infamous offense, to-wit, of the crime and offense of robbery, and duly sentenced by said coiirt to confinement in the penitentiary of said State, for the term of years, and in pursuance of said sentence said de- fendant was confined in said penitentiary for said term, which said conviction, sentence and confinement was without the knowl- edge of this plaintiff at the time of her marriage, as aforesaid. (Pra-ger as in form No. 99, and other averments as the case may require, as in form No. 98.) A B , F O B , By Counsel. Solicitor for the Plaintiff. No. 102. §924, To obtain a divorce from the bonds of matrimony because of three years' desertion. (As in No. 98 down to the **.) Plaintiff further complains and says that the said John Doe, wholly regardless of his marriage covenants and duty, to-wit, on the day of , 19 , willfully deserted and ab- sented himself from this plaintiff without any reasonable cause therefor, for the space of three years and upwards next pre- ceding the institution of this suit ; and has continued in such desertion and yet continues to absent himself from this plaintiff. (Add such other averments as the case may demand, as in form No. 98, with such prayer as the nature of the relief requires, as in form 98 or 99, as the case may call for.) John Doe, By Counsel. E F , Counsel for Plaintiff. *B The foregoing form, as well as averments in bills of this kind in form No. 100, are predicated upon sec. 118 of this work, what is said as to the necessary 1084 EQUITY PKOCEUURE. No. 103. §925. To obtain a divorce from the bonds of matrimony because of pregnancy at tbe time of marriage. (As in form 98 down to the *, mutatis m,utandis.) And this plaintiff further says that he and the said defendant are now residents of the county aforesaid, and were at the time of the institution of this suit.=^ Plaintiff further says that at the time of his marriage to the said defendant she, the said defendant, without the knowledge of this plaintiff, was enciente by a person other than this plain- tiff, but whose name is unknown to this plaintiff. (Otj if the name of the party be known, set it out in the hill.) (Add prayer and signatures of counsel and party, as in form 99.) No. 104. §926. To obtain a divorce from the bonds of matrimony where the wife had been notoriously a prostitute before marriage. (As in form 98 mutatis m,utandis down to the *.) This plaintiff further says he, as well as the said defendant now reside in the County of Mason, and did reside there at the institution of this suit. This plaintiff further says that prior to his said marriage to the said defendant she, the said defendant, without the knowl- edge of this plaintiff, was notoriously a prostitute. This plaintiff further says that upon learning the said lact this plaintiff ceased to live with his said wife, and they have not since cohabited. (Add prayer and signatures of party and counsel as in No. 99.) FORMS OEIGINAL BILLS. 1085 No. 105. §927. To obtain a divorce a mensa et thoro for cruel treatment. (After the usual caption.) Your orator, A. B., respectfully represents unto your honor that he is a resident of the County of , and State of , and has been such resident for more than one year next preceding the institu.tion of this suit ; that on the day of , 18 — , he was lawfully married to one C. D., now C. B., with whom he resided until the day of , 18 , when he was com- pelled to leave and cease living with her in consequence of the ill-treatment hereinafter mentioned ; that during the time ho so lived with the said C. B. he always conducted himself toward her with kindness, and as a true and indulgent husband, supplying all her wants and necessities, according to the best of his means and ability, and suitable to his and her condition in life. Your orator further represents that the said C. T>., not re- garding her marriage relations and duties, has, since the said intermarriage, been guilty of extreme and repeated cruelty toward your orator, in this, that she is a woman of great aus- terity i of temper, and very frequently during the past years, indulged in violent sallies of passion, and used toward your orator very obscene and abusive language withoiit any provocation whatever, and frequently refused to prepare yoiir orator's meals, and perform such other household duties as it was incumbent upon her to perform ; and, on numerous occa- sions during the time mentioned, has used personal violence toward your orator, which he did not feel disposed to resent, further than to defend himself, on account of her sex ; and particularly your orator charges, that on or about, etc., etc., at etc., the said C. B., without any provocation whatever, struck your orator a violent blow over the head with a club ; and again, on or about, etc., the said C. B. again attacked your orator in their house and severely beat and bruised him with a chair, and broke the chair in pieces ; and that on or about, etc. (Set forth each act of violence according to the facts.) Your orator therefore prays that the said C- B. may be made 1086 EQUITY PEOOEDUEB. a defendant to this bill; that your orator may be divorced from the said C. B., a mensa et thoro, and grant unto your ora- tor such other and further relief as to equity may seem meet and as duty bound will ever pray, etc. A. B., J. G. M., By Counsel.*' Solicitor for the Plaintiff. No. 106. §928. To obtain a divorce a mensa et thoro because of reasonable apprehension of bodily hurt. (Proceed as in No. 98, down to the_ **.) The complainant says that oil the day and year last afore- said at the county and State aforesaid the said defendant used to, of and concerning this plaintiff vile and abusive epithets, and then and there without any just or reasonable cause cursed plaintiff and accused her of being an unchaste woman and also did threaten the life of the said plaintiff ; and this plaintiff was compelled to and did flee from her home to save herself from severe injury and bodily harm; and the defendant threatened to take the plaintiff's life if she again returned to live with him. (Add such other averments as the case may demand, as in form No. 98, with such prayer as the nature of the case re- quires, as in form 98 or 99, as the case may call for, and add the signatures of the plaintiff and her counsel.) ISTo. lOY. §929. To obtain a divorce a mensa et thoro because of abandon- ment or desertion. (As in form No. 98 to the **. j And this plaintiff further says that on the day and year last aforesaid, the said defendant wilfully and without any jiist ♦8 As to what constitutes cruel Principles, sec. 494, where the mat- treatment within the meaning of ter is considered, the divorce law, see Hogg's Equity FOEMS ORIGINAL BILLS. 108Y or reasonable cause therefor, deserted and abandoned this plain- tiff,' and wholly refused to live and cohabit with her any longer as her husband, and from thence hitherto up to the time of insti- tuting this suit, has continually absented himself from her, and refused to return and live with her as a husband, and still does so, without any guilt on the part of this plaintiff. (Add such other averments as the case may demand, as in form No. 98, with such prayer as the nature of the relief re- quires, as in form 98 or 99, as the case may call for, adding sig- natures of -party and counsel.) jSTo. 108. §930. To obtain divorce a mensa et thoro because of habitual drunkenness, praying custody of children and an injunction. (As in form No. 98 to the *, and then as in No. lOS to the ==.) The plaintiff, further complaining, says that for a long time last passed, and prior to the bringing of this suit, the said de- fendant has been guilty of habitual drunkenness, and is now guilty of the same. (Conclude as in 98, m,utatis mutandis, adding the necessary . affidavit to the hill in order to obtain an injunction if desired, and signatures of party and counsel.) No. 109. §931. For dower in an ordinary suit by a widow. (After the usual caption:) Complaining, showeth unto the court your complainant, El- len F., that your complainant is the widow of John F., who recently departed this life intestate in this county; that the said John F. was, during the marriage between him and her- self, seized of an estate of inheritance in real estate in this county, and in the counties of M. and N., which real estate is 1088 EQUITY PEOCEDUEE. as follows, to-wit : (here hriefly describe the real estate) :* that the said J. F. died seized of the said real estate, and your com- plainant's dower therein has in no manner been lawfully barred or relinquished ; tbat the following persons are the children and heirs at law of said J. F., to-wit: Jane F., Susan F., Kobert F., and Thomas F., the last named of whom is an infant under the age of twenty-one years; that your complainant is en- titled to have her dower assigned in the said real estate, and she desires the same to be assigned to her. In tender consideration whereof, your complainant prays that the said Jane F., Susan F., Robert F., and Thomas F., may be made parties defendant to this bill ; that the said adult defend- ants be required to answer the same on their corporal oaths; *'* that a guardian ad litem be assigned the infant de- fendant, Thomas F., to defend his interests in this suit, and that the said guardian ad litem answer the said bill ; that proper process issue; that your complainant's dower in the said real estate be assigned and set out and allowed to her by the decree of your honorable court ; that all proper orders may be made, and all proper inquiries be directed, and that all such other, further and general relief may be afforded your complainant as the nature of her case may require, or to equity shall seem m.eet. And your complainant will every pray, etc. C. D., ELLEirom- issory notes therein described, one of which is payable to the defendant E F and the other to the defendant G H , which are in the sum of two thousand dollars and fif- teen hundred dollars, respectively, all of which will more fully and at large appear by reference to said trust deed itself, an attested copy of which is herewith filed marked " Exhibit B," and made part of thi^ bill. Your orator further sheweth that he is informed and be- lieves and so alleges the fact to be that at the time said deed of trust, '' Exhibit B," was executed, he, the said C D , was not only indebted to the said plaintiff as hereinbefore men- tioned, as well also as to the said E — — E and G ■ H , but in large sums of money to other parties, unsecured creditors of the said C D , and that all of the said in- debtedness hereinabove mentioned has not been paid, nor has any part thereof been paid, as this plaintiff is informed and believes and so avers. Your orator further showeth that at the time of the execu- tion of the said deed of trust, a copy of which is filed ^ as "Ex- hibit B " herewith, the said C D was, and now is, in- solvent ; that the said C — ■ — D has only about two hun- dred dollars worth of personal property, and that the said land is not worth to exceed — ■ — dollars, and cannot be sold for a greater amount than the said sum of dollars, while the indebtedness of the said C — D is far in excess thereof, 1102 EQUITY PEOCEDTJEE. amounting, as plaintiff is informed and believes and so alleges, to about the sum of dollars. That the said C D executed the said deed of trust for the purpose of attempting to create a preference in behalf of the said E F and G H , and if the said deed of trust is permitted to stand that it will operate to create a preference in favor of the said E F- — ■ — and G H , as against this plaintiff and the other creditors of the said C D , contrary to the statute in such case made and provided. Your orator therefore prays that said deed of trust, bear- ing date on the — — day of , 18 , as aforesaid, a copy of which is filed as " Exhibit B " with this bill, may be set aside and held for naught, so far as the same attempts to, or does, create a preference among the creditors of the said C D , and that the same may be taken and held to be for the benefit of all the creditors of said C D ; that the land embraced in said deed of trust may be sold under a decree of this court and the proceeds distributed p'o rata among all the creditors of the said C D who shall come into this suit and contribute to the costs and expenses thereof ; and grant unto your orator such other further and gen- eral relief as to equity may seem meet, and as in duty bound he will ever pray, etc. J G S A B , Solicitor for the Plaintiff. By Counsel.''* ISTo. 118. §940. By guardian to sell lands of an infant in Virginia. (After the usual caption.) Your orator, A B , guardian of C D , an infant under twenty-one years of age, complaining, sheweth to r^tThis form is based upon the Rep. 1012; Johnson vs. Riley. 41 cases of Wolf vs. McGugan, 37 W. W. Va. 140, 23 S. E. Rep. 698; Va. 552, 16 S. E. Rep. 797; Argand Lawyer vs. Barker, 45 W. Va. 468, Refining Co. vs. Quinn, 39 W. Va. 31 S. E. Rep. 964; Hogg's Eq. 535, 20 S. E. Rep. 576; Mack vs. Princp., sees. 200-203, where the Prince, 40 W. Va. 324, 21 S. E. subject is considered. FORMS OBIGINAL BILLS. 1103 the court that the said C D is the owner in fee simple of a certain parcel of real estate situate in (Here describe the real estate) , which is the only real estate or interest in any real estate owned by said infant ; that the only personal property or estate owned by the said infant consists of (Here describe the same) j that the said C D is over the age of fourteen years ;* that E D — — , the father of said infant, would be its sole heir if the said infant were dead."" **Your orator here sheweth unto the court that a sale of th6 aforesaid tract of land wduld promote the interests of the said infant, because, as your orator avers (Here state the facts or grounds relied on to show that the interests of the infant would be promoted by said sale). Your orator further sheweth unto the court that the rights of no person will be violated by a sale of the said real estate. Your orator therefore prays that the said infant, C D , and the adult, E T> , be made parties defend- ant to this suit ; that a suitable person be appointed guardian ad litem for the said infant ; that the said parties and the said guardian ad litem be required to answer this bill under oath, as well also as the said infant defendant in his own proper per- son ; that the said tract of land be sold and the proceeds of sale invested for the benefit of the infant as the court may direct; and that all proper orders and decrees may be made and ac- 56 " The guardian of the infant or the title acquired under it. But who brought the suit is one of the if he could, though the purchaser persons who would be entitled to might object the infant cannot ob- the estate if the infant died under jeet because the purchaser has not age, and he is not a party as such. acquired a perfect title." Durrett At the same term at which the de- vs. Davis, 24 Gratt. 302. eree for the sale of the land was " The statute requires that the made the guardian resigned his bill shall be verified by the oath of guardianship and it was ordered the guardian of the infant. Though that the suit abate as to him, and it may be most regular that this that it should proceed in the name should be done when the bill is of the second guardian who had filed, this is not indispensable, and qualifieJ. At the sale of the land it is sufficient if it is sworn to at the first guardian became the sure- any time before the court acts upon £y of the purchaser of the land for it and decrees a sale." Durrett vs. the purchase money. He could nev- Davis, supra. er be heard to impeach the decree 1104 EQUITY PROCEDURE. counts and inquiries directed ; and for such other further and general relief as the nature of the case may require, or seem proper in the premises. And your orator will ever pray, etc. A B — — , guardian of C D , Q G S , By Counsel. Solicitor for the Plaintiff- (Append affidavit as in No. 261)..)''^ No. 119. §941. By a guardian to sell lands of an infant in West Virginia. (As in No. 118 down to the *.) Then proceed as follows: That there are no other persons interested in the said real estate. (If any one else he interested continue as follows: Except J H , who is jointly interested as a part owuer thereof (or whatever the interest of the other person may be, setting it out fully.) (Continue as in No. 118 from *^.) ISTo. 120. §941a. By guardian to lease infants' lands. (After proper caption.) Complaining showeth unto the court, your orator, R. M., guardian of James C, an infant under the age of twenty-one years, that the said James C. is entitled to a fee simple estate in a tract of land lying in the said county, containing acres, lying on the Three Chopped Road, near the lines of L. D. and M. D., devised to the said James C, by his father, Robert C, by his last will and testatment, diily admitted to probate in the County Court of said county, an attested copy of which will is herewith filed, marked " Exhibit A," and is prayed to be taken and considered as part of this bill; that 66 This form is taken from 2 It is also found in Sands' Suits in Bart. Ch. Pr. {2d ed.) 1271, 1272. Equity (2d ed.), 71. FOEMS ORIGINAL BILLS. 1105 by the said will the estate of the said James C. is charged with an annuity of $150 per annum in favor of his mother, Sarah C, during her natural life, and that in order to raise this an- nuity, and meanwhile to support and educate the said James C, it will be necessary either to sell or lease the said land ; the personal property owned by the said James C. consists of (here describe it), and is wholly insufficient for these purposes. Your orator states that the said land and the personal prop- erty before described is all the property in which the said James C. is interested. The said James C. is now over four- teen years of age, and his fortune justifies his liberal education, and he desires to be liberally educated, and in the opinion of your orator it will greatly promote his interests if the income of his property is expended in his education at the best schools in the State. This tract of land before mentioned is very valuable, and Robert E.. has offered, if a lease of ten years be given him, to lease the same at the rental of $1,000 per year. Your orator believes that the letting of the said land for that time at that rent would promote the interests of the said James C, and that in such letting the interests of no other per- son would be damaged ; and, if the said offer of E. R. is not accepted, that the said land should either be leased or sold to some other person or persons. If the said James C. should die the following persons would be his heirs at law: George C. and Edmund C, two brothers of RobertC, the father of the said James C. In tender consideration whereof, and forasmuch as your orator is remediless in the premises, your orator prays that the said James C, George C. and Edmund C. may be made parties defendants to this bill, and required on their corporal oaths to make answer to the several statements of this bill; that a guardian ad litem be appointed to the said James C. to defend his interests in this suit, who shall also answer the statements of this bill under oath; that proper process issue; that the said offer of lease by the said R. R. be accepted, and that a proper commissioner be appointed by the court, in conjunction with your orator, guardian as aforesaid, or that your orator be ap- pointed as such commissioner to execute a good and sufficient. 1106 QUITY PEOCEDUEE. lease of the said lands to the said K. R. for the said term of ten years at said rental per year ; or if the court should not deem the same a sufficient rental for the said land, that the court decree that the said land be leased for ten years at public auction, or sold at public auction at such time and on such terms as to the court shall seem fit ; that all proper orders and decrees may be made, and inquiries be directed, and that all such other, further and general relief may be afforded your or- ator as the nature of his case may require, or to equity shall seem meet. And your orator will ever pray, etc- R M , S. & L., Guardian of James C. Solicitors for the Plaintiff. By Counsel.^^ (Add affidavit. No. 260, if in West Virginia, or if in Vir- ginia, No. 26Jf.) No. 121. §942. Against guardian and his surety by ward, after attaining majority, for a settlement and final accounting. (After the usual caption.) The plaintiff, M — ■ — A L , who is now of lawful age, complains of the said defendants, F L — — and J W , and says, that the defendant, F L , was, on the day of , 18 , by the Court, of said county, appointed the guardian of this plaintiff, and on the same day the said F L gave bond as such guardian with the said J W as his surety, and then qualified as such guardian, all of which will more fully and at large appear by reference to said orders of appointment and 67 The above form is taken from ginia. In the latter State the only Sands' Suit in Equity ( 2d ed. ) , pp. change in the form would be as to 73-75, and is adapted to the prac- parties, which requires all persons tiee obtaining in such cases in the interested in the real estate to be State of Virginia, and may be easily before the court, as indicated in adapted to such a case as contem- Form No. 119, sec. 941. plated by the Statute of West Vir- FORMS ORIGINAL BILLS. 1107 qualification, and a copy of said bond, which are herewith filed as " Exhibits 1, 2 and 3," respectively, and made part of this bill. This plaintiff further complains and says that as such guardian, a large sum of money, to-wit, on the day of , IS , came into the hands of the said F L from one O C , amounting in the aggregate to the sum of dollars; that on or about the day of April, 18 , another sum of money came into the hands of said F L as guardian from 'the sale of certain real estate belonging to this plaintiff, which last sum amounted to dollars. This plaintiff further says that afterward, on the day of , 18 , the said defendant, F L , had an ex parte settlement of his accounts as such guardian, which was duly recorded in the Clerk's office of the County Court of said county, a copy of which is herewith filed, marked " Exhibit No. 4." This plaintiff further complains and says that after the said settlement there came into the hands of said defendant, F L , as guardian aforesaid, two other sums of money, one for the sum of dollars and the other for the sum of dollars. The plaintiff furtlier says that since the said pretended set- tlement of the accounts of said F L , and since this plaintiff has arrived at age, the said F L has paid to her at different times small sums of money, amounting in the aggregate to not more than dollars, leaving a balance still due this plaintiff, after deducting all proper credits, from said defendant of dollars, and no part of which has ever been paid, but still remains wholly unpaid. Said defendant has at different times since his pretended settlement, promised to settle with said plaintiff and pay her any sum remaining due to this plaintiff, but the said defendant wholly refuses to pay the same or any part thereof. This plaintiff further says that the said pretended settle- ment made as aforesaid by the said F- L , is incorrect in this, to-wit, that the said F L has not charged him- 1108 EQUITY PEOCEDUEE. self with any interest on the said sums of money received by him, as aforesaid. And the said defendant has credited him- self with the sum of dollars as having been expended by him on behalf of this plaintiff, which was not expended, and for which the said defendant ought not to have any credit. This plaintiff now prays that this cause may be referred to a commissioner to take and report an account of the transactions of the said F — — L as guardian aforesaid ; that the said plaintiff may have a decree for any balance due this plaintiff against the said F L and his surety, J — — W ; and grant unto this plaintiff such other further and general relief as to equity may seem meet, and as in duty bound she will ever pray, etc. M A L , D C J , By Counsel.^' Solicitor for the Plaintiff. iSTo. 122. §944. Of injunction to judgment at law. (After the usual title, address and commencement.) I. That T. E. recovered a judgment at law against your orator in the ■ Court of County, at the — — term, 18 , for $ , with interest thereon from the day of , and $ costs. A copy of the said judgment, marked " Exhibit A," is herewith filed and is prayed to be read as a part of this bill.°" 68 This form is the usual one for best evidence of the existence of an accounting against a guardian, the judgment should be produced, and it will not be overlooked that hence the pleader should always the suit is against the guardian exhibit with his bill a. copy of tlie and his surety. This is permis- judgment sought to be enjoined, sible only to avoid a multiplicity 2 Spelling on Injunctions and of suits in a further action against Other Extraordinary Remedies, sec. the surety in case the debt cannot 996. See Parsons vs. Wilkerson, 10 be made against the principal. Mo. 713. 59 Good pleading requires that the FOEMS OEIGINAL BILLS. 1109 II. An execution has been issued upon said judgment, and is now in the hands of , Sheriii of the county of , who is about to levy the same upon your orator's prop- erty. III. Your orator avers that the said judgixient is unjust, that he had and has a full and complete defense to the action in which it was rendered, which he could and would have made thereto had he not been prevented from doing so by the action of the plaintiff, whereby your orator was deceived and lulled into false security, without any fault, laches or neglect on his own part."" For a more particular statement of the causes which prevented your orator from making defense to said ac- tion, he recites the following circumstances: ^ ' IV. The said judgment was recovered on a note drawn by your orator on the day of , for the sum of $ , payable on the day of , to the said T. E. The said note had long before the institution of said action, been paid by your orator to the said T. K. At the time of said payment your orator was indebted to -the said T. R. by four several notes, amounting in the aggregate, principal and interest to $1,260.50. Your orator paid the said sum to the said T. R., and took his receipt for the same, the said receipt specifying for what the money was paid, and showing that the amount of the said note on which said judgment was recovered was em- braced therein. V. The three other notes Avere delivered to your orator by the said T. R. at the time of signing the said receipt, and the fourth note was also demanded by your orator, but the said T. R. stated that it was lost or mislaid, and that when he found CO If it should appear that the A bill seeking to enjoin judg- plaintiff in an injunction suit has nient and execution which does not been guilty of laches in applying so identify these as to make it ap- for an injunction a court of equity pear what judgment and execution will withhold its relief. This court are meant, and which does not limit requires due and reasonable dili- the prayer for injunction to any gence from all parties in suits as particular judgment and execution, much so in cases of this character is demurrable. Adams vs. White, as in other instances. 1 Spelling 23 Fla. 352, 2 So. Rep. 774. on Injunction and Other Extraor- dinary Remedies^ sec. 87. 1110 EQUITY PKOCEDUKB. it it would be restored to your orator. The said receipt, and the three notes delivered to your orator, are herewith filed, marked " Exhibits B, C, D and E," and are prayed to be read as parts of this bill. VI. Some time after the payment of the said four notes, the said T. E. placed the fourth note, above referred to, which your orator had paid off as above recited, in the hands of a lawyer for collection, and the said lawyer thereupon instituted suit upon the same against your orator. VII. Upon receipt of the process in said suit, your orator called on the said lawyer and exhibited to him his receipt aforesaid, by which payment of the said note was acknowledged. Upon seeing which, the said lawyer at once admitted that there was no cause of action,, and promised that he would dismiss the suit of T. R. against your orator. Resting upon this as- surance, your orator made no defense to the said cause, but the said suit was not dismissed as promised, but, on the contrary, judgment for the full amount of the said note, interest and costs, as before recited, was rendered against your orator. VIII. Your orator further states that the said judgment was obtained without your orator's knowledge until the term of court at which it was rendered had expired. Your orator therefore alleges that the failure to dismiss the said action, as promised, was in fraud of his just rights, and that the judg- ment rendered therein was unjust and should be set aside, and a new trial granted. Forasmuch, then as your orator is remediless, save in a court of equity, he prays that the said T. E,. may be made a party defendant to this bill and required to answer the same in his own proper person, but not on oath, the same being hereby waived; that he, his agents, attorneys at law, and all others, be enjoined and restrained from proceedings to enforce said judgment in any way ; that especially the said Sheriff of the county of be enjoined and restrained from levying the said execution now in his hands ; that proper process issiie, and all proper orders be made ; that [the said judgment be set aside, and] a new trial of the said action at law be granted your orator, and that all such other, further and general relief may be af- FOEMS ORIGINAL BILLS. 1111 forded your orator as in the premises may be just and right. And your orator will ever pray, etc. A— B— , Q., G. & S., By Counsel." Solicitors for the Plaintiff. (Add affidavit as indicated in Nos. 259, 263, depending upon the State in which the suit is brought.) No. 123. §945. For injunction against cutting timber pending an action of ejectment. (After the usual caption, title, address and commencement.) I. That your orator is the owner in fee of a certain tract of land situate in the district of , in the County of ■ and State of , as will more fully appear from your orator's title deed therefor, duly of record in the said county, a copy of which is herewith filed, marked " Exhibit A," and made part of this bill. II. That your orator has held and owned the said tract of land for many years, under and by virtue of the said title 61 The above form is taken from may be found to be justly due, and 2 Barton Ch. Pr. (2d ed.), until after the retrial, and the de- 1276. For the principles underly- cree should direct an issue or is- ing the doctrine authorizing in- sues as the case may require to be junctions to judgments at law, see tried in the Circuit Court, to find Hogg's Equity Principles, sec. 268. what the nature of the case may It will be observed that in the demand, and upon the verdict com- prayer the plaintiff asks that the ing in, the court should perpetuate judgment be set aside and a new or dissolve either wholly or par- trial of the action at law be grant- tially, the injunction awarded to ed. This the court will not do. As the judgment against which plain- to this matter the author in Equity tiff has sought relief. And where Principles, sec. 355, says : " Upon an injunction to a judgment is per- a bill in chancery to enjoin a judg- petuated only to a part of it, or ment at law, and for a retrial, the. reversal is only as to i. part there must not be a decree before of it, the lien of the part not af- such retrial annulling the judg- fected continues from the date of ment and granting a new trial in the judgment." Hence, the part in- the law court; but the judgment eluded in brackets mav be omitted, should stand as security for what 1112 EQUITY PKOCEDUEE. deed, and has paid the taxes thereon ever since, and is now the owner thereof, which ownership is shown by the said deed. III. That the chief value of said land is the growing and standing timber thereon, consisting of pine, poplar, walnut, ash and oak, and that if said timber should be removed said property would be of comparatively little value. IV. That the defendant has recently set up some claim of title to said land, but upon what ground said claim is founded this plaintiff is unable to say ; but plaintiff avers that such claim is wholly unfounded, as this plaintiff has the only title subsist- ing in and to said land. V. That the said C D , by reason of said claim of title has entered upon and taken possession of said land, and is now in possession thereof, cutting down and hauling away to the market the said standing and growing timber thereon, and threatens to continue to do so, and will do so until the said land is entirely denuded of its timber, unless re- strained from so doing. VI. That there is now a considerable quantity of timber that has been cut down, still lying upon the said land, and it has not yet been removed therefrom, but the said defendant threatens to remove and will remove it, unless inhibited from so doing. VII. Your orator has instituted in the county aforesaid, in the Circuit Court thereof, an action of ejectment against the said C D to determine the validity of his title as against the said C D , and to oust him, the said C D , from the possession and occupancy of the said land. VIII. That said C — — - D is the owner of no prop- erty whatever, either real or personal, as plaintiff is informed and believes and so charges the fact to be; that the said C D is insolvent, and that any judgment for damages which the plaintiff could obtain against him in an action at law would be entirely imavailing; so that if the said defendant is permitted to continue the cutting and appropriation of said timber to his own use this plaintiff will be irreparably injured. Your orator therefore prays that an injunction may issue, inhibiting and restraining the said C D from the FOKMS - OBIGINAL BILLS. 1113 further cutting of any of the standing and growing timber on the said land, and from the removal of any and all timber now on the premises thereof, which has been cut down by him, the said C D , until the further order of this court ; and grant unto your orator such other, further and general re- lief as to equity may seem meet, and as in duty bound, your orator will ever pray, etc. A B , T E D , By Counsel. Solicitor for the Plaintiff. (Add the affidavit, in West Virginia, as shown in No. 259, in Virginia, as in No. 263).^' No. 124. §945a. Of mjunction against closing right of way. (After the usual caption, address and commencement.) That your orator, A B , is the owner in fee of a tract of land containing - 62 This form is founded upon tlie case of Cox vs. Douglass, 20 W. Va. 176, with such corrections as the opinion of the Court of Appeals indicated as necessary to make the bin sufficient. While this is an in- junction suit for the purpose of re- straining the cutting of timber pending an action of ejectment involving the title to the land, it is the same form required in the case of the cutting of timber by an ordi- nary trespasser, where such tres- passer is insolvent, or where the injunction is awarded upon other ground of irreparable injury. For a consideration of the sub- ject of injunction, bearing on the principle underlying the form above given, see Hogg's Eq. Princ, sees. acres, and has been such owner 235-238, 240, 241, and other sections under Ch. 22 of that work. " Though equity will not sustain a bill filed solely to prevent the removal of timber wrongfully cut, or for an account of past waste, there being a complete remedy at law; yet where the bill is so filed to prevent future waste and avoid multiplicity of suits, the court will allow an account of, and satisfac- tion for what has been done, and for the purpose of preventing ir- reparable mischief, will enjoin the removal of the timber." 1 Spell- ing on Inj., sec. 254. See Carney vs. Hadley, 32 Fla. 344, 22 L. R. A. 233 and note, 14 So. Rep. 4; Camp vs. Dixon, 112 Ga. 872, 38 S. E. Rep. 71, 52 L. R. A. 755. 1114 EQUITY PROCEDURE. thereof since the day of , 18 , by general wai^ ranty deed therefor, in which E F is the grantor, which deed is duly recorded in the Clerk's office of the County Court of County, in said State, an attested copy of which is herewith iiled as an exhibit marked " ISTo. 1," and made part of this bill. Your orator further says that the said E E was the owner of this land for about eighteen years p>rior to his sale thereof to your orator, and that your orator has so been the owner of said land for nearly twelve years next preceding the institution of this suit, and that your orator and those under whom he claims have had continuous possession thereof for nearly thirty years. Tour orator further sheweth that the said C D is the owner of a tract of land containing acres, for which he holds a deed duly of record, an attested copy of which is herewith filed, marked " Exhibit B," and made part of this bill. Your orator further represents that your orator's tract of land, as well as that of the said C D constituted at one time a part of an entire survey of two thousand acres of land, which at various times has been sold and conveyed, so that its identity as a body or single tract is no longer in existence. Your orator further represents that the only way whereby the public highway could be reached from your orator's said tract of land was along and through the said tract of land owned by the said C D , and that in order to get access to your orator's said tract, a right of way was laid off along, upon and through the land of said C D , extending from your orator's said tract to the public highway, which private road was laid out at the time your orator's said tract of land and the tract of land now owned by the said C D were sold and set off from the said entire tract of two thousand acres of land ; that said private road is well marked, fenced on either side, and has been continuously used as a right of way from the highway to your orator's said farm con- tinuously, openly and adversely and under claim and color of right by your orator not only for his own purposes, but for all other persons having occasion to go to and from your ora- FOKMS , OKIGIlSrAI. BILLS. 1115 tor's premises in order to reach the said highway, or to reach your orator's premises coming from the said highway, for nearly thirty years next preceding the institution of this suit. Your orator further says that the use of said private road has been uninterrupted and continuous for the period of time last above mentioned, until a day or two ago, when the said C D closed up that end of the road connecting with the said highway, by means of a board fence, and also closed up the same by running a fence across the said private road at the midway point between the said highway and where the said road intersects your orator's said farm; that thus closing said private road is such an obstruction as to prevent your ora- tor from using the said road or in any way going from his farm to the said public highway, and operates to the great and irreparable injury of your orator in the use, farming and occu- pancy of his said tract of land. Your orator has applied to the said C D and re- quested and demanded that he remove said obstructions, but the said C D — ■ — ■ positively refuses so to do, and perempto- rily prohibits your orator from doing so, and threatens your orator with personal injury should your orator attempt to re- move said obstruction to said private road. Your orator therefore prays that the said C D be compelled to remove said obstruction in and to the said private road, and to restore to your orator an open way through the said land of the said C — — D , along and upon the land of the said C D , from and upon which the said private way was long used and occupied as aforesaid ; and grant unto your orator such other and further relief as to equity may seem meet, and as in duty bound he will ever pray, etc. A B , By Counsel. J B M , Solicitor for the Plaintiff. (Add the affidavit as indicated in No. 259, or No. 26S, de- fending upon which State the suit is in.)^^ 63 This form is founded upon the W. Va. 307, 10 S. E, Rep. 632 ; and cases of Rogerson vs. Shepherd, 33 Boyd vs. Woolwine^ 40 W. Va. 282, 1116 EQUITY PEOCEDUEE. JSTo. 125. §945b. Of injunction to judgment at law on the ground of after discovered evidence. (After the usual address and caption.) Complaining, showeth unto the court your orator, James J., executor of the last will and testament of Merewether R., de- ceased, that one M. 'N. recently recovered in the Court of County a judgment against your orator, as executor as aforesaid of said Merewether E., deceased, for the sum of $1,000 to be discharged by the payment of $500 with inter- est thereon at the rate of six per centum per annum from the day of , until paid, and the costs, amounting to $— ; that the said judgment was recovered on a bond exe- cuted by your orator's testator, Merewether R., and one Alex- ander R., in which bond the said Alexander R. was the prin- cipal debtor, and your orator's testator was the surety. Your orator further states that when the action was broiight on the said bond against your orator, and during the whole time the 21 S. E. Rep. 1020; and upon the doctrine discussed and announced in the author's " Equity Princi- ples," see. 232; T. A. A. & N. M. R. Co. vs. Pa. Co., 19 L. R. A. 395, et seq. In Toledo, A. A. & N. M. Co. vs. Pennsylvania Co., 19 L. R. A. at page 393, the court in the course of its opinion, says : " The office of a preliminary injunction is to preserve the status quo until, upon final hearing the court may grant full relief. Generally this can be accomplished by an injunction pro- hibitory in form, but it sometimes happens that the status quo is a condition not of rest but of action, and the condition of rest is exactly what will inflict the irreparable in- jury upon complainant which he ap- peals to a court of equity to pro- tect him from. In such a case courts of equity issue maiidatory writs before the ease is heard on its merits. Robinson vs. Byron, 1 Bro. Ch. 588; Lane vs. NewdigateJ 10 Ves. Jr. 192; Hervey vs. Smith. 1 Kay and J. 392 ; Beadel vs. Perry, L. R. 3 Eq, 465; London & N. W. R. Co. vs. Lancashire & Y. R. Co.. L. R. 4 Eq. 174; Whitecar vs. Mich- enor, 37 N. J. Eq. 6; Broome vs. New York & N. J. Teleph. Co., 42 N. J. Eq. 141. And though the obstruction of a highway exists at the commence- ment of a suit to enjoin it. it may be abated by a mandatory injunc- tion, as well as by a judgment that the obstruction be removed and the nuisance abated. Spelling Inj. and Other Ex. Rem. (2d ed.), sec. 307. citing Gardener vs. Stroever, 8-.1 Cal. 26. 26 Pac. Rep. 618. FOEMS OEIGIJJAL BILLS. 1117 / said action was pending, the said Alexander E.. was out of tlie country, and though your orator made diligent enquiry for him he was unable to ascertain where the said Alexander E.. could be found, so as to communicate with him about the said alleged claim. The judgment was recovered against your or- ator as such executor on the day of . Your orator was wholly ignorant that any valid defense could be made to said action until some time after the judgment had been recov- ered, and after the term had expired at which said judgment was recovered. After the recovery of the said judgment, to-wit : On the day of , Alexander R. returned to Virginia^ and your orator immediately communicated with him about the said claim. Mr. Alexander E. informed your orator that the said debt had been paid, and sent to your orator a copy of the receipt, which had been given him by the said M. N. when the debt was paid. Your orator herewith files the said copy, marking it " Exhibit A," and the same is prayed to be taken and considered as a part of this bill. Your orator is coniident that if a new trial be granted, the said M. IST. will fail to ob- tain judgment for any sum against your orator as such exec- utor. The said judgment is, as your orator verily believes, wholly unjust and inequitable, and should be set aside. In tender consideration whereof, and forasmuch as your orator is remediless in the premises save by the aid of a court of equity, where matters of this kind are alone and properly cognizable, to the end that justice be done, your orator prays that the said M. jST. may be made a party defendant to this bill and re- quired on his corporal oath to make full answer to the several statements hereof as fully as if the same were here repeated, and he thereto specially interrogated; that the said M. ]^., his agents, attorneys, and all others, be enjoined and restrained from enforcing the said judgment, from issuing executions thereon, and otherwise proceeding to collect the same ; that the said judgment be set aside,^^* and that a new trial of the said action be granted your orator; that proper process issue; that all proper orders and decrees may be made, and that all such ■53* See note to sec. 944, Form No. 122. 3118 EQUITY PROCBDUEE. other, further and general relief may be afforded your orator as the nature of his ease may require, or to equity shall seem meet. And your orator will ever pray, etc. James J., Executor of Merewether R., deceased, John M. P., By Counsel."* Solicitor for the Plaintiff. (Add affidavit as in Ch. XLYIT, dependent upon the State in which the suit was brought. If in West Virginia, No. 260, or if in Virginia, No. 26^.) No. 126. §946. Of injunction against laying gas pipe on the plaintiff's premises. (After the usual caption and commencement. ) I. That he is the owner in fee of about one hundred and ninety acres of land in district, in said county of , described as follows: (Here describe the scume.) II. That the defendant is a corporation duly incorporated under the laws of the State of . III. That the defendant proposes to lay a pipe under the public roads and through the lands of the plaintiff for the pur- pose of conducting natural gas from the gas well on the farm of J. M., Esq., near , County, to or near , in County, and has staked and surveyed a route through plaintiff's land, and laid the pipe to within a short distance of his line. IV. That notices have been served by plaintiff on the agents and employees of the defendant not to enter plaintiff's land without first making compensation. v. That defendant has not made or tendered eomjx'nsa- tion, and is about to enter upon plaintiff's land. VI. That the proposed line of pipe will run along the pub- 64 This form is taken from Sands' kind, see the author's Equity Prin- Suit in Equity (2d ed.) 89. For eiplos, sec. 209. and the cases there the law governing in cases of this cited. FOKMS OEIGINAI. BII.LS. 1119 lie road beside, and within four feet of, a board fence, and pass between the house and barn on plaintiff's land, and within about fifty feet from each, and, if completed, will do plaintiff great and irreparable injury, and will deprive him of his con- stitutional right of property, without compensation or security tendered. Your orator therefore prays that the said defendant may be enjoined and restrained, likewise its agents and employees, from entering uixtn the premises above described and laying thereupon or thereunder a pipe line for conducting natural gas until the further order of the court, and grant unto your orator such other and further relief as to equity may seem meet and as in duty bound will ever pray, etc. A B , M. C. A., By Counsel.^' Solicitor for the Plaintiff. (Add the v^ual affidavit for the verification of an injunction.) ISTo. 127. §947. Qf injimetioii by mortgagee or cestui que trust against a mortgagor or grantor in trust deed, inhibiting the latter from cutting timber on the mortgaged or trust premises. (After the usual caption, address and commencement.) That your orator, on the day of , 18 , loaned to the defendant, C D , the sum of dollars, for which said C D : gave to your orator his promissory note payable to the order of your orator after its date, and to secure the payment of which defendant executed a mortgage (or deed of trust, as the case may he), on a certain tract or parcel of land situate in the District of , County of , and State of , fully described in said mortgage 66 The foregoing form is taken the lower court, a demurrer to the substantially from the plaintiff's bill was sustained, but this judg- amended bill in Sterling's Appeal, ment was reversed by the Supreme 111 Pa. St.~ 35, 2 Atl. Rep. 105. In Court. 1120 EQUITY PKOCEDUEE. (or trust deed) now duly of record in the County Clerk's office of said County, an attested copy of which is herewith filed, marked " Exhibit No. 1 " and made part of this hill. Your orator further sheweth unto your honor that the said debt is still wholly unpaid, and the lien existing upon the said property is still in full force and effect. Your orator further sheweth unto your honor that the lands upon which the said mortgage (or deed of trust) was executed and is now subsisting, are wild lands without any valuable im- provements, and have a fine growth of large oak and poplar timber ; that said lands after being divested or denuded of said timber will not, at a fair sale, bring anything near the amount of your orator's said debt, and that the said defendant is in- solvent. Your orator further sheweth unto your honor that the said defendant is now cutting timber on the said lands, and will continue to do so unless restrained, and intends to cut and re- move all said timber, or the greater portion thereof, standing and growing upon said lands, and will do so unless restrained by the process of this court, and if the said defendant is per- mitted to remove the timber or a large part thereof, from the said lands, the same will be insufiicient and inadequate se- curity for your orator's said debt, and your orator will there- fore be irreparably injured. Your orator therefore prays that the said defendant may be inhibited and restrained by an injunction to be awarded in this cause, from cutting or removing any more timber on or from the said lands until the further order of this 'court ; that your orator may have a decree enforcing the lien of said mortgage against said lands, and grant unto your orator such other, further and general relief as to equity may seem meet, and as in duty bound he will ever pray, etc. K & C , A B , Solicitor for the Plaintiff- By Counsel. (Add the usual affidavit for the verification of an injunction bin).'" 03 This form is based upon the Watson, 109 Ala. 335, 19 So. Rep. doctrine announced in Henry vs. 413, which authorizes the issuanc? FOKMS - OEIGINAI, BILLS. 1121 No. 128. §948. Of injunction by receiver restraining interference with property in his possession. (After the usual caption and commencement.) Your orator, C. C. L., would respectfully represent that at the fall term 1877, of your court, he was appointed by an order of yo\ir honor's court receiver of the property of the S. C. Com- pany, in County, in the chancery cause of S., trustee, etc., vs. S. C. Company, et al., pending in said court, and under such order he took possession of said property, and that on the day of March, 1878, J. H. R., Sheriff of County, levied a writ of fieri facias in favor of J. H. G. vs. said S. C. Company upon a lot of copper and brass, part of the property of said S. C. Company, upon its premises, and which is part of the property which was placed in your orator's hands as receiver as of an injunction to stay waste upon mortgaged premises, where its commission materially lessens thie value of the property and renders it a precarious security for the debt. The same doctrine is found in Spelling on Injunctions and Oth- er Extraordinary Remedies, sec. 266, from which we quote as fol- lows : " A mortgagee is entitled to an injunction against threatened waste by a mortgagor in pos- session which involves irreparable injury to the land, and will render the security inadequate; and the mortgagee is entitled to an injunction against such waste, with- out averring or proving that the mortgagor is insolvent. Upon his application, and upon a proper showing, an injunction may be granted at the suit of a mortgagee, to prevent the removal from the mortgaged premises of timber trees, cut down in waste of the security before service of the injunction. where the person against whom re- lief must be sought for the waste committed is insolvent, or where no redress can be obtained at law or in equity if the removal is per- mitted, or where there is fraud. But where the bill alleges neither of such considerations, and merely prays an accounting from the per- son who has committed the waste, an injunction will not be granted. Nor will waste by a mortgagor in possession be enjoined^ unless the acts complained of may so impair the value of the property as to render it insufficient, or of doubtful sufficiency, as security for the debt. The value of the property should, however, remain largely in excess of the debt secured by it. A mort- gagor in possession committing waste after a decree of foreclosure has been rendered, but before it has been executed, may be restrained by injunction." 1122 EQUITY PEOCEDUBE. I aforesaid, and that said J. 11. E., Sheriff as aforesaid, now has said copper and brass in his possession, and has advertised the same for sale by him under said levy, on Saturday, the 6th day of April, 1878. Your orator has notified said E. not to sell the said property that is under the charge of your orator as receiver as aforesaid, and not liable to levy or sale, but said E., Sheriff, told your orator that G. had given him an indemni- fying bond, and that he (E.) did not know but that it was his duty to go on with the sale, but that he himself would be glad if your orator would refer the matter to your honor. Your or- ator, therefore, prays that your honor will make an order re- straining and inhibiting said E., or any one else, from selling or otherwise disposing of or interfering with the said copper and brass levied on as aforesaid, or any other of the property of said S. C. Company, which has been placed by the order of your honor's court in your orator's hands as receiver. C. C. L., D. L. E., Eeceiver of S. C. Company, Solicitor for the Plaintiff. By Counsel.*" (Append affidavit under form No. 260 if in West Virginia, No. 26Jf if in Virginia.) No. 129. §949. To enjoin the erection of a nuisance. (After the usual caption, address and commencement.) That your orator resides at and owns the dwelling known as No. , on N. Market street, in the city of W , and has there resided for the last years, his family consisting of himself, his wife, three grown daughters, and two sons who are as yet quite young, and the usual servants and help of such a hoiisehold. Your orator avers that on the south side of his house he has 67 This form is taken from the record of the case of Lewis vs. Ros- ier, 16 W. Va. 334. FORMS ORIGINAL BILLS. 1123 a portico on which it is the habit of his family and friends to assemble and sit whenever the weather permits, and along the same side of his house are many of the windows and certain doors by which light, air and access and egress are admitted to and from his said house. Your orator avers that immediately adjoining his said resi- dence on the south side thereof and. within feet of the line of your orator's lot, and feet from his dwelling, re- sides Mr. Mean Man, but who has only come there to reside within the last thirty days. Your orator avers that the former occupants of the property in which the said M. M. now resides was Mr. P. G., and who, while he there resided, kept his premises in admirable order and condition, and was guilty neither of the offense now com- plained of against the said M. M., nor of any other objectionable conduct ; nor, indeed, has any other occupant of the same, since your orator has resided in his dwelling aforesaid, given any cause for such complaint. But the said M. M. had only moved into the premises aforesaid a few days, when he established in close proximity to the line of your orator's lot, and within • — — yards from his dwelling, a pen and filled the same with hogs. And your orator avers that the filth created by and the odor arising from the said hogs and the pen are such as not only to make it impossible, consistent with either pleasure or health, for your orator, his family, friends or servants to occupy the portico or to raise the windows of his dwelling; but should he leave it he probably could not secure a tenant at all for the premises, or if he did it would be at a ruinous sacrifice. Your orator avers that the keeping of hogs upon his premises is a nuisance and is not in any way essential to the enjoyment or profit of the said M. M., and if it was essential to either, your orator insists that he should not be allowed to keep them, when to do so is so injurious to your orator's property and destructive to his health and comfort. Your orator therefore prays that the said M. M. may be made a party defendant to this suit and compelled to answer this bill; that the said M. M. may be compelled to wholly re- move his said pen and his hogs from his premises, and that he 1124 EQUITY PEOCEDUEE. may be enjoined from establishing the former and keeping the latter at any time thereon, and grant unto your orator such further and general relief as to equity may seem meet and as in duty bound he will ever pray, etc. L C , Q. E. W., By Counsel."' Solicitor for the Plaintiff. (Append the usual affidavit to a hill of injunction.) No. 130. §950. To enjoin a nuisance by fouling a water course. (After the usual caption and commencement. ) That for years last past he has been the owner of a farm in the township of — — , County of , and State of , through which has ever flowed and now flows a stream known as . That on or about the day of , 189 — , said defend- ant erected a paper mill on said stream about — — nailes above said farm of plaintiff, and has continued to manufacture paper at said mill from thence until the present time. That in the use of said mill said defendant has employed, for cleaning rags, various noxious chemical preparations, and has permitted the same, after being used for said purpose, to flow into said creek, thereby rendering the water of the same unwholesome and unfit for domestic use and for stock to drink. That before the erection of said mill plaintiff had, by the use of pipes, carried the water of said stream to his house, and was using it for domestic purposes, and had also watered his stock at said stream; but since the erection of said mill and the manufacture of paper thereat the water of said stream, where it enters the farm of plaintiff and throughout its entire course the same is so foul from the use of said chemicals as to be unfit to use either for domestic purposes or for stock to drink, and because thereof is not used by the plaintiff. 68 The above form is taken from 2 Bart. Ch. Pr. (2d ed.) 1287. FOKMS ORIGINAL BILLS. 1125 That on the day of , 189 — , the plaintiff notified said defendant of the injury to the water and the cause of the same, and requested him to desist from any further pollution of the waters of said stream by said chemicals ; but notwith- standing, said defendant has still continued said injury to the plaintiff. That if the defendant is permitted to continue the acts above enumerated polluting and befouling the said stream this plaintiff will be irreparably injured. Your orator therefore prays that the said defendant may be restrained and enjoined from permitting the matter hereinbe- fore enumerated from flowing into the said stream and befoul- ing and polluting the same, and that he may be required not to permit the said refuse and debris to be carried into the said stream as above stated, and gi'ant unto your orator such other and further relief as to equity may seem meet and as in duty bound he will ever pray, etc. A B , L. C, By Counsel."' Solicitor for the Plaintiff. (Add the usual affidavit for the verification of an in j unction bill.) No. 131. §951. To enjoin the sale of property under a trust deed. (After the usual caption, address and coynmencement.) That on the — - — day of , 18 , your orator executed a deed of trust to the said E F — ■ — , trustee, on a tract of land ovsaied in fee by your orator, therein described, to secure to the defendant, C D , the payment of a certain promissory note of even date therewith, which deed of trust is duly of record in the Clerk's office of the County Court of said »» The foregoing is taken substan- tinlly from 2 Thornton Ind. Pr. Forms, 087. 1126 EQUITY PKOCEDUKE. county, an attested copy of which is herewith filed, marked " Exhibit A," and made part of this bill. Your orator further sheweth that the rate of interest on said debt for which said note was given is ten per cent, per annum ; that your orator paid the interest on said note for several years at ten per cent., but received credit simply for the interest and no credit on the principal for the excess of usurious interest, which, in the aggregate, now amounts to the sum of dollars, for which your orator, in equity and good conscience, should have a credit upon said debt. Your orator further sheweth that he has made a large num- ber of payments on said note, for one of which payments, to- wit, seventy-five dollars, made on the day of , 18 , your orator has never received any credit upon the said note. Your orator further sheweth that by crediting the said aggre- gate sum of usurious interest upon the principal of the said debt, and the said seventy-five dollars paid as aforesaid and not credited thereon, your orator -would not owe anything at all upon the said debt. Your orator further sheweth that although the said debt has thus been paid off and discharged, the said E F , trus- tee as aforesaid, has advertised the said land for sale under the said trust deed in the , a newspaper published in said county, which sale is advertised to take place at , on the day of , 18 , at the hour of o'clock of that day ; all of which will more fully and at large appear by a copy of said notice of sale, herewith filed, marked " Exhibit B," and made part of this bill. Your orator further sheweth that he represented to the said trustee that the said debt has been paid off and discharged as aforesaid, and requested him, the said trustee, not to sell the said property but to file his bill in a court of equity for an ad- justment and settlement of the accounts between your orator and the said C D arising upon the said loan, but the said E F failed and declined to do so. Your orator therefore prays that the sale advertised to take place on the day of , 18 , under the notice pub- lished in said newspaper as aforesaid be enjoined and re- FORMS OBIGINAL BILLS. 1127 strained ; that any sale under any other notice by the said trus- tee be inhibited, as well as any attempt at such sale, until the further order of this court; and grant unto your orator such other further and general relief as to equity may seem meet, and as in duty bound he will ever pray, etc. A B , By Counsel. 70 L C S- Solicitor for the Plaintiff. No. 132. §952. To enjoin sale of property under deed of trust to secure payment of money borrowed from building and loan association. The bill of complaint of M L G- against B- B & L Association, a coporation, and J W— trustee, filed in the Circuit Court of K County, in the State of . The plaintiff complains and says that the defendant, B- B & L Association is a corporation, created and or- ganized under the laws of the State of ; that on the day of March, 18 , the plaintiff borrowed the sum of dollars, and for the purpose of evading the usury laws, the said association required this plaintiff, as a mere shift and device, to become the owner of eight shares of stock in said association of the par value of one hundred dollars each. The plaintiff further says that in order to get said loan she executed a bond payable to the said association as therein pro- vided, and to secure the payment thereof, the plaintiff executed '0 The foregoing form is based Davis vs. Deming, 12 W. Va. 246, upon the principles announced in 248, etc.; Code (Va.), sees. 2815- Kerr vs. Hill, 27 W. Va. 516; Cur- 2822; Hartman vs. Evans, 38 W. ry vs. Hill, 18 W. Va. 390; Richard- Va. 669, 18 S. E. Rep. 810; Watter- son vs. Donehoo, 16 W. Va. 688; son vs. Miller, 42 W. Va. 108, 24 Code (W. Va.), Ch. 96, sec. 7; Nor- S. E. Rep. 578; Hogg's Eq. Prine., veil vs. Hedrick, 21 W. Va. 523; sees. 248-250. 1128 EQUITY PKOCEDUEB. a deed of trust on her property in said trust deed described, which property is situate in the town of and State afore- said, all of which will more fully and at large appear from said trust deed which is duly of record, an attested copy of which is herewith filed, marked '' Exhibit A," and made part of this bill. This plaintiff further says that as a condition to member- ship she was required to pay to the defendant, in order to be- come a member of such association, one dollar per share, which amounted as a membership fee to the sum of eight dollars. This plaintiff further says that she was required to pay each and every month to said association upon each one hundred dollars of her said loan as dues, cents per month ; as premiums, cents per month ; and as interest, cents per month, making an aggregate monthly payment to said association, on account of and by reason of said loan, the sum of dollars per month. This plaintiff further says that it is further stipulated and agreed in said bond and trust deed that upon the failure of this plaintiff to pay such dues, premiums and interest for the period of , then the whole of said sum of dollars, borrowed as aforesaid by this plaintiff, was to become due and payable, with the immediate right of sale under said trust deed by the said association. This plaintiff further says that she paid to the said associa- tion on account of the matters hereinbefore stated, the sum of dollars and interest from the day of March, 18 , and made no further payments thereon, at which time the asso- ciation claimed a balance due from her of dollars, and has advertised the trust property for sale, to take place on the day of , 18 , as will more fully and at large ap- pear from the notice of sale, a copy of which is herewith filed, marked " Exhibit B," and made part of this bill. This plaintiff further says that upon becoming a member of such association as aforesaid, she made no bid offering any premium for said loan ; that the said associati dollars, and to fully perform his part of the said agreement whenever the said C D will make and deliver to him a good and sufficient deed for the premises aforesaid. Your orator therefore prays that the said C D — — may be made a party defendant to this bill ; that the said defendant may be decreed specifically to perform the said agreement en- tered into with your orator as aforesaid, and to make a good and sufficient deed to your orator for the said described prem- ises ; your orator being ready and willing, and hereby offering specifically to perform the said agreement on his part, and upon the defendant's making out a good and sufficient title to the said premises and executing a proper conveyance therefor to your orator, pursuant to the terms of said agreement, to pay to the defendant the residue of the purchase money; and that your 1198 EQUITY PBOCBDUEE. orator may have such other and further relief as equity may re- quire, and to your honor may seem meet, and as in duty bound he will ever pray, etc. A B , E. F., By Counsel."' Solicitor for the Plaintiff. Ho. 156. §976. For specific performance of parol agreement for sale of land where there has been a part performance. (After the usual caption and address.) The plaintiff complains and says that the H. C. C. & S. Com- pany is a corporation duly organized and existing under and by virtue of the laws of the State aforesaid ; that its principal office and place of business is in the town of H , in the county aforesaid; that the said company, as the owner in fee of a cer- tain parcel or lot of land and house thereon situate, hereinafter more particularly described, did bargain and sell the same to the defendant, H. G., for the sum of $ ; that said contract of sale was made some time in the year 18 . The plaintiff avers that said defendant, H. G., was put in possession of said lot and premises by the company aforesaid ; that said H. G. made valuable improvements thereon and paid part of the pur- chase money therefor, amounting, as this plaintiff is informed, to the sum of $ . The plaintiff further avers that said H. G., finding him- self unable to finish paying the purchase money for said prop- erty, did sometime in the year 18 , agree with this plaintiff that if he, this plaintiff, would finish and complete the payment of the purchase money then due and owing said company for said property, that the deed therefor should be made to him, 98 This form is taken from Puter- baugb's Ch. PI. and Pr. (3d ed.) 393. POEMS OEIGINAI. BILLS. 1199 this plaintiff, said defendant, H. G., thereby selling and trans- ferring to this plaintiff the equitable interest of said defendant, II. G., in and to said lot and premises. The plaintiff further avers that in pursuance of said contract with said H. G., he took possession of said property, has lived in and upon the same ever since, and has built an addition to the house located on said land, constructed a smokehouse thereon and made other valuable and permanent improvements and repairs thereon, paid the taxes and charges against said property and has paid said company about the sum of $500.00 in full and complete satisfaction and discharge of the purchase money due therefor. The plaintiff avers that said company is now ready and will- ing to make, execute, acknowledge and deliver to this plaintiff an apt and proper deed conveying said property to this plain- tiff ; but plaintiff charges that said H. G. refuses to permit said company to execute said deed to him, this plaintiff, in accord- ance with the contract between said H. G. and this plaintiff. The plaintiff further says that he has performed in all re- spects his part of the said contract ; but the said defendant, H. G., refuses and declines to perform his part thereof. The plaintiff further says that said lot is situated in or near J in ' County, West Virginia, and is bounded as fol- lows : (Here describe lot.) The plaintiff therefore prays that said H. G. and H. C. C. & S. Company be made parties defendant to this suit, and that said defendants be required to execute and deliver to this plain- tiff a proper deed conveying to this plaintiff said lot and prem- ises aforesaid. He asks such other, further and general relief as the court may see fit to grant. And as in duty bound, he will ever pray, etc. M G , M— & H , By Counsel.'" Solicitors for the Plaintiff. 99 The above form is substantially vs. Gallagher, 31 W. Va. 9, 5 S. E. taken from the case of Gallagher Rep. 297. 1200 EQUITY PROCEDUEE. No. 157. §977. By surety to be subrogated to rights of creditor. (After the usual caption and address.) Your orator, A. B., respectfully represents that on the day of , 19 , one C. D., being indebted to one E. F. in the sum of dollars, for so much money, by the said E. F., then loaned to the said C. D., the said C. D. and your orator, as his security, made and delivered to the said E. F. a promissory note of that date, and thereby promised to pay to the said E. F. the said sum of money in one year after the date thereof, with interest thereon at the rate of six per cent, per annum, which said promissory note was signed by the said C. D. as principal thereto, and by your orator as security for the said C. D., and without any consideration moving from the said C D. or E. F. to your orator. Your orator further represents that to further secure pay- ment of the principal sum and interest above mentioned, the said C. D. and D. D., his wife, on the day of , 19 , by their mortgage deed of that date, conveyed to the said E. F. in fee simple, the following described real estate, situate in the said County of , to-wit : (Here describe the premises) subject, however, to a condition of defeasance upon the payment of the said principal sum and interest aforesaid, according to the tenor and effect of the said promissory note, which said deed was on the day of — ■ — , 19 , duly acknowledged, and afterwards, on the day of , 19 , filed for record in the Clerk's office of the County Court of County, and duly recorded in Deed Book Xo. , at page , as will more fully appear from an at- tested copy of said deed herewith filed as " Exhibit A," and made part of this bill. Your orator further represents that soon after the execution and delivery of the said promissory note and mortgage deed, and before the said note became due, the said C. D. became wholly insolvent, and unable to pay the amount due on the said promissory note. FOKMS ORIGINAL BILLS. 1201 Your orator further represents that after the maturity of the said promissory note, on the day of , 19 , E. F., the holder thereof, demanded of your orator, as security aforesaid, the amount due on said note, and your orator was compelled to, and did pay to the said E. F., the full amount due thereon, to-wit : the sum of dollars ;, which said pay- ment was indorsed upon said note by the said E. F., as will more fully appear from the said promissory note, now held by your orator, and the endorsement thereon, ready to be produced upon the hearing of this cause ; a copy of the same is hereto attached, marked " Exhibit B," and made a part of this bill of complaint. Your orator further represents that by reason of the in- solvency of the said C. D., your orator is in danger of losing the amount so paid by him as security as aforesaid, and that in justice and in equity your orator is entitled to be subrogated to all the security, including said mortgage lien, held by the said E. F. Your orator further represents, upon information and belief, that one G. H. and J. K. have or claim some interest in the mortgaged property aforesaid, as purchasers, judgment credi- tors or otherwise, the precise nature of which is unknovm to your orator, but such interests', if any there be, have accrued since, and are subject to the rights of your orator, under the mortgage aforesaid. Your orator therefore prays that the said C. D., D. D., E. F., G. H. and J. K. be made parties defendant to this bill; that upon the hearing thereof, th& court will decree that your orator be subrogated to all the rights and benefits of the said mort- gage lien possessed by the said E. F. ; that an account may be taken in this behalf, by or under the direction of the court, of the amount due your orator, as aforesaid ; that the defendant, C. D., may be decreed to pay to jonr orator whatever sum shall appear to be due to him upon the taking of said account, together with the costs of this proceeding, by a short day to he fixed by the court ; and that in default of such payment, the said premises may be sold, as the court shall direct, to satisfy the amount due your orator, and the costs; and that your orator 1202 EQUITY PBOCEDTJUE. may kave such other or further relief in the premises as equity may require and to the court shall seem meet. A B , By Counsel/"" -M , Solicitor for the Plaintiff. No. 158. §978. For the removal of a trustee because of misconduct in his management of the trust fund, for an injunction and a receiver. (After the usual caption or title.) Your orator, A. B., and your oratrixes, B. B., the wife of A. B., and C. B., the daughter and only child of A. B. and B. B., respectfully represent -unto your honor that on the day of , 19 , a certain deed of conveyance of that date was executed between your orator, A. B. and your oratrix, B. B., his wife, of the one part, and C. D. and E. F., the de- fendants hereinafter named, of the other part, which said deed is in the words and figures and to the purport following, that is to say (here set out copy of deed verhatim) , as by the said deed, ready to' be produced in court, will appear. Your orator and oratrixes further represent that the defend- ant, C. D., has principally acted in the trust of the said deed, and has, by virtue thereof, from time to time, received consid- erable sums of money and other effects, but he has applied only a small part thereof upon the trusts of the said deed, and has applied and converted the residue thereof to his own use ; and, in particulai", the said C. D. has, within a few months pas-t, received a considerable sum of money from the estate and ef- fects of the said B. B. and C. B., the whole of which he has ap- plied to his own iise. 100 The foregoing form is taken from Puterbaugh's Ch. PI. and Pr. (3d ed.) 778. rOEMS OEIGINAL BILLS. 1203 Your orator and oratrixes further represent that they have reneatedly applied to the defendants for an account of the said trust property received and possessed, by them, and of their ap- plication thereof. And your orator and oratrixes well hoped that the defendants would have complied with such reasonable re- quest, as in equity they ought to have done. But now so it is, the defendants combining and confederating and contriving so to wrong and injure your orator and oratrixes in the prem- ises, absolutely refuse to comply with such requests ; and pre- tend that the trust property and effects possessed and received by them were to an inconsiderable amount, and that they have duly applied the same upon the trusts mentioned in said deed. Whereas your orator and oratrixes charge the contrary of such pretenses to be the truth ; and that so it would appear if the de- fendants would set forth, as they ought to do, a full and true account of all and every the said trust property and effects which they have respectively possessed and received, and of their application thereof. Your orator and oratrixes further represent that the defend- ant, C. D., threatens and intends to use other parts of the said trust property, and to apply the same to his own use, and will do so unless he is restrained therefrom by the injunction of this court ; that both said defendants ought to be removed from being trustees under said deed, and that some other person or persons ought to be appointed by this court, as such trustees in their place and stead ; and that in the meantime some proper person ought to be appointed' tp receive, take charge of and collect the said trust property. Your orator and oratrixes therefore pray that the said C. D. and E. F. be made parties defendant to this bill, and be re- quired to make full and direct answer to the same; and set forth a true and pesfect account in items -of all the trust funds and effects received by them, respectively, by virtue of the said deed, and of their, application thereof; and that upon the hear- ing thereof an account may be taken of all and every the said trust property and effects, which have, or but for- their willful default or neglect might havp, been received by them, or either of them, or by any other person or persons, by their or either 1204 EQUITY PROCEDURE. of their order^ or to their or either of their use ; and also an account of their application thereof; and that the defendants may respectively be decreed to pay what shall appear to be due from them upon such account; and that the defendants may be removed from being trustees under the said deed ; and that two other persons may be appointed trustees under the said deed in their place and stead ; and that in the meantime some proper person may be appointed to receive and collect the said trust estate and effects ; and that your orator and oratrixes may have such other and further relief in the premises as equity may require and to your honor shall seem meet. A. B., B. B. and C. B., G. H. K., By Counsel."^ Solicitor for the Plaintiff. jSTo. 159. §979. By a trustee to obtain the advice of the court touching Ms duties, and for an auditing of his accounts. (After the usual caption and commencement.) That on the day of , 19 , one A B , desiring to make voluntary settlement in trust of the bulk of his property in contemplation of marriage, by his deed of said date duly executed and acknowledged, sold, transferred and conveyed to the plaintiffs as joint tenants, to them and the sur- vivor of them, the following described real and personal prop- erty: (Here describe the -property), upon the following condi- tions: (State the terms of the trust), a copy of which deed is herewith filed as " Exhibit A," and made part of this bill. That for the accommodation of the said B and at his solicitation, the defendants accepted the said conveyance upon the aforesaid trust, and said deed was duly delivered by said 101 The foregoing form will be found in Puterbaugh's Cb. PI. and Pr. (3d ed.), p. 694. rOEMS OEIGINAL BILLS. 1205 A B to the plaintiffs, and admitted to record in the Clerk's office of the County Court of — — County, in the State of . That on the day of , 19 , said A B married C D , who is now living, and there have been born lawful issue of said marriage as follows: (Here set out the names and ages of the children.) That plaintiffs have held and managed the property con- veyed by said deed ever since the delivery of the same, and have duly paid over to said A B the net income arising upon said trust as provided in said deed. That the plaintiffs have sold part of the property conveyed to them in said deed, and have reinvested the proceeds thereof in other property for the benefit of said trust, pursuant to the powers given them in said deed. That there have come into their hands and are now held by the plaintiffs as a part of said trust property, six hundred and seventy-eight shares of the capital stock of the Hartford Steel Manufacturing Company, and forty-two shares of the capital stock of the Union Copper Company, which companies are duly incorporated under the laws of the State of . That said stocks have thus far proved, and at present con- tinue to be, profitable investments, and the plaintiffs have held and now hold the same as such trustees with the knowledge and assent of said A B , and neither said A B nor the plaintiffs know of any other securities which, in their judgment would probably produce a greater net income with greater safety and certainty; but the plaintiffs are in doubt and are unwilling longer to hold so large an amount of said stocks without the advice and protection of a decree of a proper court. (Set forth a full statement of the p-oceedings, investments and disbursements of the trustees from the commencement of the trust.) That ever since accepting said trust the plaintiffs have ren- dered frequent accounts of their management of said trust and of the receipts and expenditures on account thereof to said A B , and he has approved the same ; but inasmuch as 1206 EQUITY PEOCBBUBB. said trust is necessarily of very long duration, and the rights of said minor children born, or that may be hereafter born, are involved in the administration of said trust, as well as the rights of his wife, the plaintiffs feel it to be their right and duty to ask the court to examine into their administratioji of said trust from the commencement thereof, their sales and pur- chases, investments and reinvestments, as respects the principal of said trust fund, and their receipts, charges and disburse- ments on account of the income thereof, and to pass upon the propriety and correctness of their said doings and accounts, and to make a complete settlement to the date of the decree of all matters between the plaintiffs and the parties interested. That the value of the trust property now in the hands of the plaintiffs is about $ , and is situate in the State of , and said A B has, since the acceptance of said trust by plaintiffs removed out of this State, and now resides with his wife and children in the city of . Plaintiff therefore prays that the court will advise and or- der whether they may or shall hereafter hold as part of said trust property said stocks in- said manufacturing companies or any part thereof ; that the court will examine into the adminis- tration of said trust by the plaintiffs from the commencement down to the time of such examination, including all their sales and purchases, investments and reinvestments, as respects the principal of said trust fund, and all other receipts, charges and disbursements on account of the income thereof ; and that the court vsdll pass upon the propriety and correctness of the said doings and accounts, and make a complete settlement up to date of decree of all said matters as between the plaintiffs and the parties interested in said trust; and grant unto plaintiff such other further and general relief as to equity may seem meet, as in duty bound they will ever pray, etc. M L C J H , and P , Solicitor for the Plaintiff. By Counsel.""^ 102 The foregoing is based upon a similar form in 2 Thornton's Ind. Pr. Forma, 581. foems original bills. 1207 jSTo. 160. §980. For the establishment and enforcement of a trust. (After the usual caption and commencement.) That on the day of , 18 — ■ — , plaintiff employed the defendant as his agent to purchase for him the following described real estate: (Here describe the same) (Or such real estate as the defendant might in' his judgment deem advisable to purchase as an investment), and furnished him for said pur- pose the sum of dollars. That the defendant accepted such employment and as such agent on the day of , 18 , purchased said real es- tate, and paid therefor of plaintiff's money the sum of dollars. That the defendant, vfithout the' knowledge or consent of the said plaintiff, took the deed of conveyance for said real estate in his own name. That on the day of , 18 , plaintiff demanded of said defendant an accounting and payment of said money, and a deed to plaintiff for said real estate, all of which was refused by said defendant. Plaintiff therefore prays that the defendant be compelled to account with him, and that he have a decree against the said de- fendant for dollars, residue of said sum of money placed in the hands' of defendant as aforesaid, by this plaintiff ; that defendant be required to convey said real estate to the plaintiff, or upon his failure so to do, a special commissioner be appointed for that purpose; and grant unto this plaintiff such other further and general relief as to equity may seem meet, and as in duty bound he will ^er pray, etc. A B- By Counsel."' W ^0- Solicitor for the Plaintiff. 103 The above form is taken from 2 Thornton's Ind. Pr. Forms, 1580. 1208 EQUITY PEOCEDTJEE. JSTo. 161. §981. To set aside a will — general form. (After the usxml caption and commencement.) That he is one of the children and heirs-at-law and distribu- tees of Robert B., who recently departed this life, possessed of real and personal property. The other children, heirs-at-law and distributees of Robert B., are Anna B., Thomas B. and William B. Your complainant believes that the said Robert B. died intestate. Since his death a paper-writing, purporting to be his last will and testament, has been admitted to probate in this court (or in the ■ — — ■ Court of ), whereby he gives the chief part of his property to one Susan S., and, after that, the residue of his property to his children ; the order admitting the said paper to probate was made on the day of . An attested copy of the said paper is herewith filed, marked " Exhibit A." and made part of this bill. Marcellus M., named as executor of the said paper-writing, has declined to qualify as such executor. Your complainant alleges and charges that the paper-vn-iting aforesaid, of which probate has been received, is not the will of the de- cedent, Robert B. In tender consideration whereof, and for- asmuch, etc., your complainant prays that the said 'Susan S., Anna B., Thomas B. and William B. may be made parties to this bill and required to answer the same, and this merely as a step or part of this proceedings to obtain a trial before a jury ; that proper process may issue; that an issue devisavit vel non be made up and tried by a jury at the bar of this court, to as- certain and try whether the said paper-writing, admitted to probate as aforesaid, is or is not the true last will and testament of the said Robert B. ; that the said probate be set aside ; that the said paper-writing be declared and decreed not to be the last will and testament of the said Robert B. ; and that all such other, further and general relief may be afForded your com- FORMS OEIGINAL BILLS. 1209 plainant as the nature of his case may demand, or to equity Shall seem meet. And your complainant will ever pray, etc. A. B., J. Z., By Counsel.'"' Solicitor for the Plaintiff. No. 162. §982. To set aside a will on the ground of undne influence and mental incapacity. (After the usual caption.) The plaintiffs complain and say that on the day of -, 18 , J. "M.. B. departed this life, leaving him surviv- ing the plaintiffs, vpho are his children by his first wife, who long ago departed this life; also the defendants, M. B. B., as his widow, the said E. B., S. B., and T. B., who are his children by the said M. B. B., the decedent's second wife, and the said parties named as his children are his sole heirs-at-law. The plaintiffs further say that at th^ time the said J. M. B. departed this life he owed no debts, and owned and possessed a large and valuable estate, consisting of real and personal property, amounting in value to about the sum of $75,000.00. The plaintiffs further say that on the day of ■, 18 , there was admitted to probate in the Clerk's office of the said County Court of M , a paper-writing purporting to bear date on , 18 , and which purports to be the last will and testament of the said J. M. B., deceased, all of which will more fully and at large appear from said paper- vmting itself, together with the order of probate thereof, copies of which are herewith filed, marked " Exhibit No. 1," and made part of this bill. The said paper-writing purports to contain devises and be- 104 The above form is taken from 2 Barton's Ch. Pr. (2d ed.), p. 1298. 1210 EQUITY PEOOEDURE. quests to the said M. B. B., E. B., S. B. and T. B., T. E. B., G. B. B., Y. v., M. E. J., W. S. B., Z. T. B., F. M. B., J. and M. B., as by reference to the said writing will more fully and at large appear. These plaintiffs further say that the devises and bequests to said T. R. B., G. B. B. and V. V. are quite small and insignifi- cant when compared to what they should have and would take under the law of descents as his children, but for said paper- writing; and the devises and bequests to said M. E. J., W. S. B., Z. T. B., F. M. B. are barely nominal, so small are they and each of them, when compared with what they and each of them should receive under the law of descents as his children; and the residue of said estate, and the principal part and the bulk thereof is given by said writing to the said M. B. B. and her three children, the said E. B., S. B. and T. B., infant defend- ants as aforesaid, as by reference being had to said paper will more fully appear. And the said paper also purports to contain a devise of a small piece of real estate to said J. M. B., and no provision at all is made in said writing for the said M. F. B. These plaintiffs further say that subsequently, on the day of , 18 , and about the last of March in that year, the said M. B. B. was adjudged a lunatic ; and on the day of , 18 — — , the said Y. X. was appointed a committee of said M. B. B., by the County Court of the said County of M -, and who gave bond and qualified as such committee, which will more fully and at large appear from the order of said County Court making such appointment, an attested copy of which is herewith filed, marked " Exhibit 'No. 2," and made part of this bill. These plaintiffs further say that on the — — day of , 18 — ■ — , the said U. S. F. was appointed administrator, with the will annexed, of the said J. M. B., deceased, by the Clerk of the said County Court in the vacation thereof, as will more fully appear from the order of such appointment made in va- cation of the County Court as aforesaid in " Exhibit ISTo. 1," hereinbefore filed as an exhibit to this bill. These plaintiffs further say that at the time said paper- FOEMS OBIGINAL BILLS. 1211 "writing was made, purporting to be the will of the said J. M. B., deceased, the alleged testator, he, the said J. M. B., was afflicted with bodily and mental infirmity, and with weakness of mind and impaired memory to such an extent that the said alleged testator was not of sound mind. That OD or'about the day of , 18 , the said J. M. B., who had been a widower for some years, married M. B. B., who was then 28 years of age, and more than 30 years his junior; that soon after the marriage of said M. B. B. to the said J. M. B., she commenced her entreaties and importunities with the said J. M. B. to influence him to transfer his property to her ; that these importunities and entreaties continued with increased vigor from that time up to the said day of , 18 , at which time and long prior thereto said J. M. B. was so worn out with said importunities and entreaties that his will had given away and yielded thereto, and on the said last named date he was entirely under the influence of the said M. B. B., his wife, and subject to her will and control ; that the influence exerted over the said J. M. B., during the period aforesaid by the said M. B. B., his wife, in order to procure him to transfer his property to her and her children, was so strong and so great as to utterly destroy the peace of mind and overthrow the free agency of the said J. M. B., and to substitute her will for his. Ani so these plaintiffs say that the said paper-writing purporting to be the will of the said J. M. B., deceased, was procured, obtained and made through and by the unlawful and undue influence of the said M. B. B. operating upon the mind of the said testator at the time of its ex- ecution. These plaintiffs therefore further say that the said paper- writing purporting to bear date on the day of ; 18 — — , and admitted to probate on the day of , 18 , by the County Court of M County, West Vir- ginia, and purporting to be the last will and testament of J. M. B., deceased, is not the last will and testament of J. M. B., de- ceased, nor is any part thereof the last will and testament of the said J. M. B., deceased. Plaintiffs therefore pray that the said paper-writing be de- 1212 EQUITY PEX3CEDUEE. clared not to be the will of said J. M. B., deceased, and grant unto plaintiffs such other, further and general relief as the law in the premises may authorize and as in duty bound they will ever pray, etc. Z. T. B., W. S. B., T. R. B., M. F. B., F. M. B., G. B. B., M. E. J. and V. V., By Counsel."'^ W. P., Solicitor for the Plaintiffs. No. 163. §983. To construe a will. (After the usual caption.) The plaintiff complains and says that on the day of , 19 , one E F died seized of an estate of the estimated value of dollars, leaving a will duly attested, which, on the day of , 19 , was duly admitted to probate in the Clerk's office of the County Court of County, State of , as will more fully appear from the order of pro-: bate, a copy of which is herewith filed as " Exhibit Xo. 1 " and made part of this bill. Plaintiff further says that the terms and provisions of said will will more fully and at large appear from said will, an at- tested copy of which is herewith filed as an exhibit, marked " Exhibit 'No. 2 " and made part of this bill. That plaintiff, as executor of said will, has paid all lawful claims against said estate, and all legacies provided for in said will, and on the day of , 19 , duly rendered an account of all his proceedings in said settlement of said estate to the court of the State of , which accounts and set- tlement were duly approved and confirmed by said court. 105 The above form is drawn from to be set aside upon the ground the general principles underlying of undue influence and mental in- the law authorizing any instrument capacity. FORMS OEIGIJfAI. KILI,S. 1213 That after the payment of the legal claims against said estate, and of the legacies given by said will, and of the expen,ses of the settlement of said estate, there remains in the hands of the plaintiff no residuary estate whatsoever applicable to the pur- poses of the trust provided for in the sixteenth section of said A\'ill, except two parcels of land with the buildings thereon in the sixteenth section of said will specifically described which are of the value of not less than dollars. That no church edifice has been erected on either of the tracts of land in the sixteenth section of said Avill set apart for that purpose, nor has any application ever been made to the plain- tiff for the occupation or use of said premises for the erection of said church edifice, society or ecclesiastical organization for the purpose of availing themsf.lves of the provisions of the trust by said sixteenth section intended to be created. That by reason of the failure of the residuary estate as con- templated by the said sixteenth section, the plaintiff is without fimds or the means of raising them to keep the house named in said sixteenth section properly insured, or to make the repairs upon said house necessary to keep it in proper and tenantable condition, or to pay the taxes lawfully assessed against the premises, or the assessments properly laid thereon for local and municipal purposes, and the taxes already assessed against said premises have remained unpaid for a series of years and now amount to $ , bearing interest at tlie rate of per cent. That and , named in the sixteenth sec- tion, have both deceased since the death of said testatrix, and their interests under the provisions of the will have ceased. That the following persons claim to have some interest in or title to the premises described in said sixteenth section of said will, to-wit: (naming them), as next of kin and heirs of said (testator) J deceased. That various questions have arisen and various claims have been made by the different persons hereinbefore named relative to the construction, validity and legal effect of certain of the ]irovisions, devises and trusts contained in said will, among which are the following : Whether any legal effect can be given to any part of the six- 1214 EQUITY PEOCEDUEB. teenth section of said will, and if so, what; and whether all or any part of said section is or is not void ; and whether any por- tion of the scheme contemplated by said section can be made legally operative; Whether the trust made, or which it was attempted to make, in said section is valid and operative, and capable of being car- ried out in any legal manner, and if so, how ; and whether the trust estate thereby created, or which it was attempted to create, is now a valid and subsisting estate ; and whether the provision for accumulation therein contained is a legal and valid provi- sion, and if not, whether other provisions of said section are thereby rendered inoperative and void ; Whether the trust which it was sought to create by said sec- tion is or is not void for uncertainty, indefiniteness and a fail- ure of the object of the testatrix's bounty. In the event of said trust being adjudged to be inoperative or invalid, or to have failed, then to whom, and in what propor- tions, and in what manner, the tracts of land mentioned are to be conveyed, or whether such tracts, or either of them, revert, or in right or in law belong, to the heirs at law of the testatrix, and who such heirs are. The plaintiff is ready and willing to convey said estate as the same shall appear of right to belong, but he is in doubt as to said several questions, and as to the true construction of the clauses and paragraphs of said will to which said questions re- late ; and by reason of the conflicting claims of the various par- ties in interest and of the uncertainty and ambiguity of the va- rious clauses of said will, he is exposed to sundry suits bv said claimants, and to loss and damage therefrom. The plaintiff therefore prays that he may have the advice and protection of the court in giving a construction to the several clauses 'and provisions of said will in respect to which have arisen said various claims and questions as above specified and set forth; tliat he may have a decree entered in this cause ad- judicating and settling the construction of said will, and direct- ing the plaintiff in what manner he shall carry its trusts into execution, so that he may execute the same property and with FOEMS ■ OEIGINAL BILLS. 1215 safety to himself ; and that he may have such other and further relief as the court may see fit to grant. A B , executor of E ■ r , deceased, By Counsel.^ H H , Solicitor for the Plaintiff. No. 164. §984. To perpetuate testimony. (After the usual caption and commencement.) That on the day of , 18 — - — , he entered into a certain contract with A B , as follows : (Here state the contract, or if the suit be not on contract state the case.) But the said A B wholly broke and failed to per- form the contract in this that he did not (now state the case, or if it be not on contract substitute the true narrative of the case, substituting the same in place of the words " wholly brohe and failed," and the words following.) JSTevertheless, although your orator hath just cause of com- plaint against the said A B , because of his conduct and behavior in the premises, and at the proper time proposes to institute suit against the said A B , yet at this time your orator is prevented from instituting suit against the said A B — — , for the following reasons : (Here state such reasons as in law may he good and sufficient why suit -may not be instituted at present.) And your orator avers that in order to maintain his suit, when he shall be at liberty to institute the same, the testimony of X L is absolutely essential to him, but the said X L is a very aged person and in infirm health (or is 108 As to the parties to a bill of ing in 2 Thornton, Ind. Prac. this sort, see ante, sec. 83. This Forms, 1605-7. form is founded upon one appear- 1216 EQUITY PROCEDUEE. about to leave the State), and your orator fears that should his testimony not be taken at once, he may die or be in such feeble- ness of body or mind (or will have left the State), as that h'is testimony can not be taken, if the taking thereof shall be post- poned until the said suit shall have been brought and matured for the taking of testimony. Wherefore, your orator prays that the said A B be made a party to this suit and be compelled to ansveer this bill, but not on oath, the oath being hereby expressly waived ; that your orator be allowed, upon proper notice to the said A B , to take the deposition of X- — — L — — , and that the same be perpetuated by decree of this court in this cause to be used, and read in such suit as your orator may hereafter institute against the said A B — — upon the cause of action de- scribed in this bill. C D , By Counsel."' W P K , Solicitor for the Plaintiff. (Verify the bill by affidavit , following the form No. 259 j or No. 262, depending upon the fact as to the State in which the suit is brought.) 1^0. 165. §985. To take testimony de bene esse. (After the usual caption and commencement.) That an action at law is now pending in the Circuit Court of County, wherein your orator is plaintiff, and said C D is defendant, (or the reverse), touching and concerning (here describe the cause of action) , which has not yet been com- mitted to a jury; and your orator further shows, that one E F , of the age of seventy years or upwards (or a person- of infirm health, or laboring under a certain disease, or 107 The above form is taken from 2 Bart. Ch. Pr. (2nd ed.) 1290. FORMS ORIGINAL BILLS. 1217 who is about to depart out of the jurisdiction of the court, or who is the sole witness to the fact of ) , so that his testimony is in danger of being lost to your orator at the said trial, by reason of death (or absence), is a material and important wit- ness for your orator, inasmuch as the said E F is ac- quainted wtih the fact (here state the expected evidence of the witness), (or, inasmuch as the said E E is the sole person who has knowledge of the fact of ), which fact it is material and necessary for your orator to prove on the trial of the said action at law. In tender consideration whereof your orator prays that the said C D may be made a party defendant to this suit ; that your orator may be at liberty to take the testimony of the said witness E — ■ — E de bene esse; that your orator have such other further and general relief as to equity may seem meet, and as in duty bound he will ever pray, etc. A— B , By Counsel. " 1 Solicitor for the Plaintiff. (Append uffidavit of the circumstances under which the evi- dence is in danger of being lost.) 1218 EQUITY PEOCECUItE. Sec. 986. Sec. 987. Sec. 988. Sec. 989. Sec. 990. See. 991. Sec. 992. CHAPTER XXXIX. BILLS NOT ORIGINAL. Amended or supplemental bill. Amended and supplemental bill. — Another form. Amended or supplemental bill. — A further form. Amended bill. — Another form, and one often used in practice. The amendment to a bill. Of revivor by the original complainant, against the executor of the original defendant, who had answered the original bill be- fore his death. A croiss-bill. See. 992o. A cross-bill in the nature of a plea puis darrein continuance. Sec. 993. Of review upon errors in law. Sec. 994. Of review on discovery of new matter. ¥o. 166. §986. Amended or supplemental bill. (After the style of the cause and court in which pending as in No. 1.) The amended (or supplemental) bill of complaint of A. B., humbly shows, that heretofore he filed his bill of complaint in this court, against a certain C. D., praying amongst other things, for a sale of certain premises mortgaged by the said C. D. to your orator, as in said bill is particularly set forth, to which bill the defendant answered, and other proceedings were had, as by the same proceedings now in this court, will appear. And your orator has lately discovered, and now charges, by way of amendment (or supplement) to his aforesaid bill of complaint, that the said C. D., subsequent to the date of his aforesaid mortgage to your orator, conveyed or assigned all his remaining interest or equity of redemption in said prem- FORMS BILLS NOT ORIGINAL. 1219 ises unto one E. F., of said , who is therefore a necessary party to this suit. Your orator, therefore, prays that the said C. D. may an- swer this amended bill, and that the said E. F. may answer as well the matters charged in the original bill of complaint as in this amended bill, and that your orator may have such re- lief against them as is prayed for in his original bill against the said C. D. A B , M. N., By Counsel.' Solicitor *f or the Plaintiff. No. 167. §987. Amended and supplemental bill — Another form. (After style of cause as indicated in No. 1.) The amended and supplemental bill of your complainant, R. B., respectfully sheweth to the court that he heretofore ex- hibited in this court his original bill of complaint against (here name the defendants, setting forth original bill and proceedings, after which state the matter of amendment and supplemental) matter.) Your complainant therefore prays that the said M. M. and L. L. may severally answer all and every the matters and things herein charged by way of amendment and supple- ment, and that they may discover and set forth, (Here add interrogatories.) And your complainant prays that he may have full and general relief in the premises, such as the nature of his case may require. And your orator will ever pray, etc. E. B., H. M., By Counsel.' Solicitor for the Plaintiff. 1 This form is taken from Mit- telligible, the new matter. Puter- ford & Tyler's PI. and Pr. in Eq., baugh, Ch. PI. and Pr. (3rd ed.) 554. 205. An amended bill need only state 2 The above form is taken from 2 so much of the original bill as is Barton's Ch. Pr. (2nd ed.) 1294. necessary to introduce and make in- 1220 EQUITY PEOCEDUEE. No. 168. §988. Amended or supplemental bill. — A further form. (After style of cause as indicated in No. 1 and commence- ment as in No. 17.) I. That on the ninth day of July, 1890, he filed his original bill in your honor's said court against the said defendant, Rich- ard Roe, alleging, among other things, that (here state briefly the material allegations of the original hill.) In'said original bill complainant prayed that (here set forth the substance of the prayers.) All of which allegations and prayers will fully ap- pear by reference to said original bill. II. And now, by leave of your honor, complainant brings this amended bill into your honor's said court, and shows to the court that (here set out the new matters, new parties, and such other additional^ or amendatory , or explanatory matters, as the amended bill is intended to set forth.) III. The complainant now prays : First. That proper process issue to bring (any new parties, made by the amended bill, before the court.) Second. That all the defendants to this amended bill be re- quired to answer it, but not on oath. (If an answer from any defendant is unnecessary, so state, and except him from answer- ing.) Third. That complainant have (the particular relief he seeks by his amended bill, if any, specifying it.) Fourth. That complainant may have, also, general relief. J D , L S , By Counsel." Solicitor for the Plaintiff. 3 It must not be forgotten or over- mental bill must also be verified, looked that when the original bill The foregoing form is taken from is verified the amended or supple- Gibs. Suit in Ch., sec. 645. FORMS BILLS NOT ORIGINAL. 1221 No. 169. §989. Amended bill. — Another form, and one often used in prac- tice. The amended and supplemental bill of complaint of A B against C- D , filed in the Circuit Court of County, in the State of . The plaintiif by way of amendment and supplement to his bill says that heretofore, he filed his bill of complaint in this court against C D — — , to which bill of complaint he hereby refers, and asks that it be taken and read in connection with this, his amended and supplemental bill to the same ex- tent, and with the same effecjt as if the same were herein fully set forth ; that the said defendant filed his answer to said bill, , and other proceedings were thereon had, as bv the same pro- ceedings in this court, reference being had thereto, will fully appear. And this plaintiff, further complaining, says that he has lately discovered and now charges by way of amendment and supplement of his said bill of complaint that (here insert the matters of amendment and supplement to he ernhodied in the amended and supplemental bill) ; that it will appear from the amendment here made that the said E F and G D should be made parties to this suit in order to complete the determination of the matters in controversy here involved. (This last allegation as to new parties is only to be made, of course, ivhen the amendment requires new defendants.) Plaintiff therefore prays that the said C D may, answer this amended and supplemental' bill; that the said E F and G D may answer as well the mat- ters charged in the original bill of complaint as, in this amend- ed and supplemental bill; and that this plaintiff may have such relief as is prayed for in his original bill. A B , V By Counsel. J — C , Solicitor for the Plaintiff. 1222 EQUITY PROCEDUBB. ISTo. 170. §990. The amendment to a bill. (After the title of the cause.) An amendment to the bill of complaint in this cause made by leave of, and in pursuance of an order of the court, entered herein on the day of — — , 18 . First. In the third line from the top of the second folio of the bill, after the word " and," interline, " to-wit, on the day of , 18 ." Second. After the word " time," in the tenth line from the bottom of the sixth folio, insert the words following: (Here insert the additional matter proposed.) Third. Strike out the words " did convey," in the fourth line from the top of the eleventh folio, and insert in lieu thereof, the following : " Was about to convey." Fourth. Add the name of " E F " as a defendant, in the second line from the bottom of the fourteenth folio,- after the word " and." A B , J H W , By Counsel. Solicitor for the Plaintiff.* No. 171. §991. Of revivor by the original complainant, against the execu- tor of the original defendant, who had answered the original bill before his death. (After title of the cause.) The bill of complaint of A. B. humbly shows that hereto- fore he filed his bill of complaint in this court against C. D., praying, amongst other things, (here insert prayer of original hill in such manner as to show the right to revive against the executor of the deceased defendant.) To which said bill the i See Puterbaugh, Ch. PI. and Pr. (3rd ed.) 203, whence this form is taken. FORMS BILLS ITOT OEIGINAL. 1223 said defendant answered, and other proceedings were had, as by the same proceedings now remaining in this court will appear. And your orator further charges that before the said cause was brought on to a hearing, the said C. D. departed this life, leaving a last will and testament in writing, duly executed in his lifetime, of which he appointed E. ~F., of said county, executor, who, since the death of the said C. D. has duly proved the same and obtained letters testamentary thereon, and has possessed himself of assets of his testator sufficient to an- swer the demands of your orator against the said testator, as stated in his aforesaid original bill. And your orator is advised that the said suit having abated by the death of the said C. D., he is entitled to have the same revived against the said E. F., as executor aforesaid, and re- stored to the condition in which it was at the death of the said C. D. Your orator therefore prays that the said E. ~F. may be made a party defendant to this bill, as well, also, as to said original bill, and may answer the premises, and may either admit assets of his testator in his hands to satisfy your orator's afore- said demand, or set forth a full and particular account of the personal estate of his testator which has come to his hands, and of the application thereof. And that the said suit may be revived against the said E. F. and be restored to the same condition that it was in at the time of the death of the said C. D. And in case the said E. F. shall not admit assets of his testator in his hands to satisfy your orator's aforesaid demand, that an account may be taken, under the direction of this court, of the estate and effects of the said testator, received by or for the use of the said E. F. as executor aforesaid, and of the application thereof, and grant to your orator such other relief as the nat" -"e of this case may require. J. L., A B , Solicitor for the Plaintiff. By Counsel.^ B The foregoing form is taken from Mitford & Tyler's PI. and Pr. in Eq., 554. 1224 EQUITY PBOCEDTJKB. No. 172. §992. A cross-bill. (After title of the cause.) Humbly complaining, showeth unto your honor, your orator, J. H., (administrator of all and singular the goods, chattels and credits, which were of E. H., deceased, at the time of his death, left unadministered by M. H., in her lifetime, now de- ceased, and which said M. H., in her lifetime, and at the time of her death, was administratrix of the goods, chattels, rights and credits, which were of the said K. H., deceased, at the time of his death), that J. M., deceased, when in sound mind, duly made his last will and testament in writing, and thereby, after bequeathing several pecuniary legacies, gave the residue of his personal estate and effects (subject to the payment of his debts) to his daughter H., then an infant under the age of twenty-one years, but now the wife of J. C. (and which said J. C. and H., his wife, are two of the defendants hereinafter named), and thereby appointed R. P. (another defendant here- inafter named), and the said E. H., executors of his said will, as by the probate copy of such will, reference being thereto had, will more fully appear. And your orator further showeth unto your honor, that the said testator died on or aboiit the day of . without altering or revoking his said will, leav- ing his said daughter H. him surviving; and upon or soon after his decease, the said R. P. and R. li., as such executors, as aforesaid, duly proved the said will in the proper court, and the said R. P., who principally acted in the execution of said will (the said R. H. having only interfered for the sake of conformity), under and by such probate, possessed himself of a considerable part of the said testator's personal estate and effects. And your orator further showeth unto your honor that the said R. H. departed this life on or about the day of , 18 ; and shortly after his decease letters of administration were duly granted to the said M. H., his wife, who died on or about the day of , 18 ; and after FOEMS BILLS NOT OEIGINAL. 1225 liei" decease, such letters of administration of the unadminis- tered personal estate of the said R. H., deceased, as aforesaid, were duly granted to your orator by the proper court; as by such letters of administration, reference being thereto had, will fully appear. And your orator further showeth unto your honor that the said R. H., previously to his death, accounted for and paid to the said R. P., as such co-executor as aforesaid, all such part of the personal estate of the said testator as had been received by him, R. H., as such executor, as aforesaid, and no part of such personal estate remained in the hands of the said'R. H. at the time of his decease, previously whereto the said R. H. resided in the country, where his house was robbed, and all papers (relative to his acts as such executor as aforesaid, and for which he had so accounted as hereinbefore mentioned), were stolen, and have never hitherto been recovered. And your orator further showeth unto your honor that the said J. C. and H., his wife, duly intermarried previously to the said H. attaining the age of twenty-one years, which she has since done, and after that period the said R. P. duly accounted for the residue of the said testator's personal estate with the said J. C. (who, in right of the said H., his wife, became entitled to receive the same), and thereupon obtained a general re- lease from the said J. C. and H., his wife, of all demands in respect thereof, as by the said release, reference being thereto had, will appear. And your orator hoped, under the circum- stances aforesaid, he would not have been called upon for an account of the administration of the said testator's personal estate. But now, so it is, the said J. C. and H., his wife, combining and confederating with the said R. P., and divers other per- sons at present unknown to your orator, whose names, when discovered, your orator prays he may be at liberty to insert herein, vvith apt words to charge them as parties defendants hereto, and contriving how to wrong and injure your orator in the premises, have lately filed their bill in this honorable court against your orator, as such- representative of the said R. H., deceased, as aforesaid, for an account of the personal 1226 EQUITY PEOCEDUEE. estate of the said testator, J. M., received by the said R. H., de- ceased, in his lifetime, as such executor as aforesaid, thereby praying that your orator may be decreed to pay the said J. C, in right of the said H., his wife, what upon such account shall appear to be due to the said J. C, in right of -the said H., his wife, out of the assets of the said E. H. ; and to which said bill they have made the said R. P. a defendant, without praying any account or relief against him. And they pretend that ttiere are various receipts and accounts (particularize those charged in the original hill) of the said R. H., deceased, as such executor aforesaid, as to the personal estate of the said testator, which remained unaccounted for by the said R. H. at his decease, and which ought to be paid by your orator. Whereas your orator charges the contrary thereof to be true (negative specifically the pretended receipts and accounts), and that an account was stated, and a settlement of accounts took place between the said R. H. previously to his death, and the said R. P., and that an account has likewise been stated and settled by and between the said R. P., as such surviving executor as aforesaid, and the said J. C, in right of the said H., his wife, since she attained the age of twenty-one years, as aforesaid; and that no demand was ever made on the per- sonal estate of the said R. H., in respect of his accounts, until lately, when the loss of such papers as aforesaid was discov- ered, and of which your orator charges an undue advantage is intended and attempted to be taken, and your orator also charges that the said R. P. abets the said J. C. and H., his wife, in their proceedings, and refuses to indemnify the per- sonal estate of the said R. H., in respect of his accounts in the execution of the will of the said testator, J. M., so accounted for by him, and settled with the said R. P. as aforesaid ; and the said R. P. also refuses to inform your orator what he knows of the matters aforesaid, or any of them, and also de- nies such statements as have been made by him relative thereto. Tour orator therefore prays that the said J. C. and H., his wife, and said R. P. and the rest of the confederates, when discovered, may be made parties defendant to this bill; and may upon their several and respective corporal oaths, full, true, FORMS BILLS WOT OEIGINAL. 1227 direct and perfect answeB make to all and singular the matters hereinbefore stated and charged, as fully and particularly as if the same were hereinafter repeated, and they thereunto dis- tinctly interrogated, and that not only as to the best of their respective knowledge and remembrance, but also to the best of their several and respective information and belief, and more especially that they may answer and set forth whether (here follow the interrogatories to he answered.) And the further prayer of your orator is that the said J. C. and H., his wife, may be decreed to execute to your orator, as such administrator of the goods, chattels and credits of the said R. H., deceased, left unadministered by the said M. H., also deceased, at the time of her death, a general release of all claims and demands upon such administered estate and effects of the said R. H., deceased, as aforesaid, in respect of all the accounts of the said E. H., in the execution of the will of the said testator, J. M. ; or that an account may be taken of the said personal estate of the said testator, J. M., received by the said E. H., and of his application thereof; your orator being willing and hereby offering to pay what, if anything, shall appear to be due on the balance of such account ; and that the said E. P. may be decreed to indemnify the estate of the said E. H. and your orator, as such administrator thereof, as aforesaid, in respect to such part thereof as the said E. P. paid to, or to the order, or for the use of the said E. P. ; or otherwise to account for and pay the same to your orator. And that tihe said J. C. and H;, his wife, may be decreed to pay to your orator his costs of this suit ; and that your orator may have such further and other relief in the premises as the nature of his case may require, and to your honor may seem meet. J. H., K. L., By Counsel." Solicitor for the Plaintiff. e See Mitford & Tyler, Eq. PI. and pears; ante, sees. 190-207, but es- Pr., 563, in which this form ap- peeially sec. 199. 1228 EQUITY PEOCEDURE. No. 172 a. §992a. A cross-bill in the nature of a plea puis darrein con- tinuance. (After the usual caption.) Your orator, A. B., respectfully represents unto your honor, that on the day of , 18 , C. D., the defendant hereinafter named, filed his bill of complaint in this honorable court against your orator, thereby praying, (Here state the prayer of the bill); and your orator, being duly served with process, appeared and put in his answer thereto, to which an- swer the said C. D. filed a replication; and issue being thus joined, testimony was taken on both sides, and the proofs closed; whereupon the said cause was set down for hearing, as by the said bill, and other pleadings and proceedings in the said cause, now remaining as of record in this honorable court, reference being thereto had, will more fully appear. Your orator further represents that the said cause has not yet been heard; and on the day of , 18 , the said C. D., by a certain writing of release, of that date, did remise, release and forever quit-claim unto your orator, his heirs, executors and administrators, the several matters and things complained of in and by the said bill of the said C. D., and in question in the said suit, and each and every of them, and of all sums of money then due and owing, or thereafter to become due and owing, together with all and all manner of ac- tions, causes of actions, suits and demands whatsoever, both at law and in equity, or otherwise howsoever, which he, the said C D., then had, or which he should or might at any time or times thereafter have, claim, allege or demand, against your orator, for, or by reason or means of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of the said deed or writing of release; as by the said re- lease, reference thereunto being had, and a copy of the same hereto attached, marked " Exhibit A," and made a part of this bill, will more fully appear. And your orator hoped that in consequence of the said re- FORMS BILLS 2«'OT ORIGINAL. 1229 lease, the said C. D. would not have proceeded in the said suit against your orator ; but the said C. D., notwithstanding the said release, threatens and intends to proceed in the said suit, and to bring the same on for hearing in due course ; and he pre- tends that no such release was ever executed by him, or if so, that the same was obtained by fraud and surprise, and there- fore void. Whereas your orator charges that the same was, in every respect, fairly and properly obtained by your orator, and duly executed by the said C. D. And your orator further represents that under the circum- stances aforesaid, he is unable to put the said release in issue, or to use the same as a plea in bar of said suit. Your orator therefore prays that the said C. D. may be made a party defendant to this cross-bill; that the said release may be established and declared by this honorable court a sufficient bar tO' any further proceedings by the said C. D. in the said suit; and that the bill of the said C. D. therein, may, under the circumstances, be forthwith dismissed with costs, and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet. A. B., F. G., By Counsel." Solicitor for the Plaintiff. ISTo. 173. §993. Of review upon errors in law. (After the proper title.) Your orator, A B , respectfully represents that on the day of , 18 , one C D exhibited his bill of complaint in this honorable court against your orator in the words and figures following, to-wit : (Here insert copy 7 Taken from Puterbaugh Ch. PI. and Pr. (3rd ed.) 373. 1230 EQUITY PROCEDURE. of hill) and on the same day process was issued upon said bill in the words and figures following, to-wit: (Here insert copy of process) which was served upon your orator on the day of , 18 ; that on the — — day of ', 18 , your orator appeared and put in his answer to said bill, in the words and figures following, to-wit: (Here insert copy of answer) and the said C D on the day of , 18 — — , filed his replication to said answer, as follows, to-wit: (Here insert) and issue being joined, the following other pro- ceedings were had in said cause, to-wit: (Here insert all the proceedings down to and including the final decree.)* And your orator further represents that the said decree is erroneous and ought to be reviewed, reversed and set aside for many apparent errors and imperfections, among which are the following : First. The court erred in the decree rendered in this cause in (Here insert the error complained of). Second. The court further erred in the rendition of its said decree in. (Here insert the second error and continue until the assignment of errors is completed.) Por all of which errors and imperfections in said decree, ap- pearing upon the face thereof, your orator has brought this, his bill of review, to have the said decree reviewed and set aside, and to thereby be relieved in the premises. Your orator therefore prays that the said C D may be made a party defendant to this bill, and may be re- quired to make full and direct answer to the same; that said decree may be reviewed, reversed and set aside, and any further proceedings ceased thereon; and that your orator may have such other and further relief in the premises as equity may require, and to your honor shall seem meet. A B , By Counsel.® T J M , Solicitor for the Plaintiff. I Taken substantially from Puterbaugh Ch. PI. and Pr. (3rd ed.) 318. FOEMS BILLS NOT OEIGINAL. 1231 Ho. 174. §994. Of review on discovery of new matter. (As in No. lis down to the *.) And your orator further represents, by leave of this honor- able court, first had and obtained for that purpose, that since the rendition of the said decree, your orator has discovered new matter of consequence and material in said cause, particularly that, etc, (Here set forth the new matter discovered) ; which new matter your orator did not know; and could not, by reasonable diligence, have known, so as to make use thereof in the said cause, previous to and at the time of the hearing and the pronouncing of the said decree ; and that your orator first learned of the existence of the said newly discovered evidence about, etc., (Here give the date of the discovery as near as may he) j and your orator is advised that said new matter, etc. (Here state the bearing of such new matter upon the decree.) And your orator further represents that he is advised and .insists that under the circumstances aforesaid, the said decree, in consequence of the discovery of such new matter as afore- said, ought to be reviewed and reversed. Your orator therefore prays that the said C D m.ay be made a party defendant to this bill, and that he may be required to answer the same ; that the decree and all proceed- ings thereon may be reviewed and reversed, and any further pro- ceedings ceased thereon ; and that your orator may have such other further and general relief as equity may require, and as to your honor may seem meet. A. B , L C P , By Counsel.' Solicitor for the Plaintiff. (Add affidavit as in No. 269.) » Taken from Puterbaugh's Oh. PI. and Pr. (3rd ed.) 319. 1232, BQUITY PEOCEDUEE. CHAPTER XL. PETITIONS. Sec. 995. Observations. See. 995a. By guardian for the sale of infant's lands. Sec. 996. By guardian for the lease of infant's lands. See. 997. By guardian to give mortgage or deed of trust on infant's land. Sec. 998. To transfer estate of minor or insane person into another State or county. Sec. 999. By guardian to be allowed to apply part of the principal to the education or maintenance of the wai Sec. 1000. By guardian for permission to submit matter to arbitration. Sec. 1001. By husband for release of inchoate right of dower of insane wife. Sec. 1002. By a guardian to remove proceeds of the sale of real estate of the infant out of the State. Sec. 1003. By church trustees for the sale of church property. Sec. 1004. Petition making new parties to suit. Sec. 1005. Petition foi rehearing. Sec. 1006. Disputing the validity of attachment by third party. Sec. 1007. For a rehearing by a non-resident after the entry of a decree upon an order of publication in an attachment suit. See. 1008. Where the petitioner was proceeded against as an unknown party. Sec. 1009. For leave to file a bill of review for errors apparent upon the face of the decree. Sec. 1010. For leave to file a bill of review upon discovery of new matter. §995. Observations. As there are not a few matters of practice that now origi- nate in a court of equity by petition, as well as other matters brought to the attention of the court in the same manner as incident to a pending cause, it is thought advisable to devote a distinct and separate portion of this work to the subject of the forms of petitions as now employed by our courts of equity, and especially those of the Virginias? 1 See ante, sees. 226-250c. FORMS I'ETITIONS. 1233 1^0. 175. §995a. By guardian for the sale of infant's lands. To the Honorable , Judge of the Circuit Court of County in tho State of : The undersigned, your petitioner, respectfully represents unto your honor that he is the guardian of C J) , an infant under twenty-one years of age ; that the said petitioner was duly appointed and qualified as the guardian of said C D in the Court of Coimty, and State of , on the day of , 19 , as will more fully and at large appear by reference to ycfur petitioner's said appoint- laent and qualification, a copy of the order whereof is herewith filed, marked " Exhibit ISTo. 1," and made part of this petition." Your petitioner further represents unto your honor that his said ward, C D — ■ — , is the owner in fee simple of a cer- tain parcel of real estate, situate in (Here describe the prop- erty)^ which is the only real estate or interest in any real es- tate owned by the said infant ; that the only personal property or estate owned by the said infant consists of (Here describe the same) ; that the said C D is over the age of four- teen years ;-|- that no one else except the said infant is in any manner interested in the said real estate* or the sale thereof. Your petitioner further sheweth unto the court that in the opinion of your petitioner a sale of the aforesaid tract of land would promote the interests of the said infant, because, as your petitioner here avers, (Here state the facts or grounds relied on to show that the interests of the infant would be promoted by a sale.) Your petitioner further sheweth unto your honor that he has given the said C D ten days' notice of your pe- titioner's intention to apply to this court for the relief sought by this petition. Your petitioner further sheweth unto your honor that the rights of no person will be violated by a sale of said real estate. Your petitioner therefore prays that the said infant, C 1234 EQUITY PEOCEDUEE. D , may be made a party defendant to this petition ; that a suitable person be appointed guardian ad litem for the said infant ; and that he may be required to be present at the hear- ing of said petition ; tliat the said tract of land be sold and the proceeds thereof be invested for the benefit of the infant as the court may direct, and that all proper orders and decrees may be made and accounts and inquiries directed ; and grant unto your petitioner such other, further and general relief sis the nature of the case may require or seem proper in the premises. A B , By Counsel.^ Q : G S , Solicitor for the Petitioner. (^Verify hy affidavit as in No. 260. No. 176. §99G. By guardian for the lease of infant's lands. '(As in No. 175 down to the *.) Then proceed as follows: Your petitioner further sheweth unto your honor that the said land and personal property above described, is all the property in which the said C D is interested ; that inasmuch as the said C D is now over fourteen years of age and his fortune justifies his liberal education, and h^ de- sires to be liberally educated, in the opinion of your petitioner it will greatly promote his interests if the income of his prop- erty is expended in his education at some school in this State. Your petitioner further sheweth unto your honor that the said land is very valuable and will lease for at least the sum of dollars per year. 2 Constructed from the provisions" of the West Virginia statute, Code Ch. 83, sec. 12. rOEMS PETITIONS. 1235 Your petitioner further slieweth unto your honor that the letting of tlie said land for a definite period not exceeding • years, at that rent, would promote the interest of the said C D , and that in such letting the interests of no other person would be affected or damaged thereby. Your petitioner further sheweth that he has given said C D — ■ — ten days' notice of your petitioner's intention to apply to this court for the relief sought by this petition. Your petitioner further sheweth unto your Jionor that the rights of no person will be violated by the lease or rental of the said real estate. Your petitioner therefore prays that the said infant, C D , may be made a party defendant to this petition; that a suitable person be appointed guardian ad litem for the said infant; and that he may be required to be present at the hear- ing of said petition; that the said tract of land be rented for the purposes hereinbefore designated ; and grant unto your petitioner such other further and general relief as the nature of his case may require or seem proper in the premises. A B , By Counsel.^ J W L- , Solicitor for the Petitioner. (The above petition must be sworn to.) No. 177. §997. By guardian to give mortgage or deed of trust on infant's land. (As in No. i75 to the. *.) Then proceed as follows: Your petitioner further sheweth unto your honor that said land and personal property above described is all the property in which the said C D is interested; that the said 3 Based on- West Virginia statute, Code, CVi. 83, see. 12. 1336 EQUITY PEOCEDUEE. land is underlaid with valuable coal, but that the surface is wholly unfit for agricultural purposes ; that the income of the es- tate of the said C D is insufficient to pay the taxes on the said real estate and to maintain and educate him ; that the said land is wholly unproductive; that in the opinion of your petitioner it would be to the interest of said C D to negotiate a loan secured by a mortgage or deed of trust on said land, and open a coal bank on the said land and operate it, as the coal with which the said land is imderlaid is of excellent value, and commands ready sale in the market ; that your pe- titioner can have the bank opened up and the said mine put in running order for the mining and shipment of coal for the sum of dollars; that the profits from the business will enable your petitioner to pay off and discharge the said trust or mortgage within a reasonable time. Your petitioner further sheweth \mto your honor that he-has given said C D ten days' notice of your petitioner's intention to apply to this coiirt for the relief sought by this petition. Your petitioner further shewoth unto your honor that the rights of no person will be violated by incumbering said real estate. Your petitioner therefore prays that said infant, C D , be made, a party defendant to this petition ; that a suitable person be appointed guardian ad lllem for the said infant; and that such guardian ad litem may be required to be present at the 'hearing of said petition ; that said tract of land may be mortgaged or a deed of trust placed thereon for the purposes: hereinbefore designated ; and grant unt In Chancery. C D- Pending in the Circuit Court of County, in the State of . To the Honorable , Judge of the said court : The undersigned, your petitioner, respectfully sheweth unto your honor, that he is informed and believes and so states, that 10 The above form of petition is substantially taken from 3 Barb. Ch. Pr. p. 457, No. 170. , rOEMS PETITIONS. 1249 an order of attachment was issued in the above entitled cause against the property of the defendant C D , and was on the day of , 18 , levied on the property men- tioned and described in the officer's return made upon said order of attachment, to the record in which case, with all the papers, exhibits and files thereunto belonging, reference is here- by made for the purposes of this petition, and asked to be taken and read as part hereof. Your orator further sheweth unto your honor that on the day of , 18 , and subsequently to the institution of the above entitled cause, your petitioner brought a suit in chancery also against the said C D in your honor's court, in which an attachment was issued and levied upon the same prop- erty upon which the attachment issued in the above entitled cause was levied, as will more fully appear by the record in your petitioner's case, together with the exhibits, papers and fi.les therein, hereby referred to and made part of this petition. Your petitioner further sheweth unto your honor that he is advised and so charges, that the attachment levied in the above cause in favor of the said A B is not a valid attach- ment, because the affidavit upon which it is based is defective, in this, (Here set out the defect in the affidavit, or any other ground that exists for invalidating the attachment may be set out.) Your petitioner further avers that by virtue of the attach- ment levied in the suit in which your petitioner is plaintiff, against the said C D , petitioner has a valid and sub- sisting lien upon the property attached in the above entitled cause, wherein the said A B — ■ — is plaintiff and the said C D defendant. Your petitioner further sheweth unto your honor that he ia ready and willing to give the security for costs as required by the laws of this State in a procedure of this character, in such sum and in such conditions as the court may prescribe. Your petitioner therefore prays that a jury may be impan- elled to inquire into the claim of your petitioner, as herein- before set forth, unless the same be waived, and that the court may make such other orders as may be necessary to protect the 1250 EQUITY PKOCEDTJEE. rights of your petitioner ; and grant unto petitioner such other further relief as the nature of his case may require. E F , L U , By Counsel." Solicitor for the Petitioner. No. 187. §1007. For a rehearing by a non-resident after the entry of a decree upon aoi order of publication in an attachment suit. (As in No. 185 to the *.) The undersigned, your petitioner, respectfully represents unto your honor that a decree was entered in the above entitled cause on the day of , 18 , against your petitioner, and hy which he is aggrieved, upon an order of publication; that an order of attachment was issued in said cause and levied upon the property of your petitioner ; that your petitioner was not served with a copy of the attachment nor any process issued in said suit sixty days prior to the 'rendition of said decree against him; that your petitioner did not appear and make defense in or to the suit; that your petitioner has a just and valid defense thereto (which may be set out, though this is not necessary) . Your petitioner here refers to. the bill, its exhibits, all the process, papers, and the entire record of said cause, for the pur- poses of this petition, and asks that they be taken and read as part hereof. Your petitioner therefore prays that said decree may be re- opened and reheard, and that your petitioner may be allowed to make such defense to the said cause as he may be advised is 11 The above form is based upon taken substantially from the rec- the ease of Miller vs. White, 46 W. ord in that ease. Va. 67, 33 S. E. Rep. 332, and is FOSMS PETITIONS. 1251 lawful and proper ; and grant unto your petitioner such further and general relief as equity and the law in such ease made and provided may require. C D — — , Petitioner, J H , By Counsel."' Solicitor for the Petitioner. No. 188. §1008. Where the petitioner was proceeded against as an un- known party. (As in No. 185 to the *.) The undersigned, your petitioner, respectfully represents unto your honor that a decree was rendered in the above entitled cause on the day of , 18 , against your petitioner and others, and by which your petitioner is aggrieved, upon an order of publication ; and in which your petition was proceeded against as an unknown party ; that your petitioner has not been served with a copy of said decree at any time ; that your peti- tioner was proceeded against as an unknown party and did not appear and make any defense in or to the above entitled suit; that your petitioner has a just and valid defense thereto, be- cause, as your petitioner avers, (here the grounds of defense may he set out, though it is not necessary to show the existence of any defense in order to have a rehearing under the statute). Your petitioner here refers to the bill filed in said cause, its exhibits, all the process, papers and the entire record therein, for the purposes of this petition, and asks that they may be taken and read as part hereof. Your petitioner therefore prays that said decree may be re^ opened and reheard, and that your petitioner may be allowed to make such defense to said cause as he may be advised is lawful 12 This form is based upon see. 243 case of Smith vs. Life Association, of this work, and particularly the 76 Va. 380. 1252 EQUITY PltOCEUUBE. and proper ; and grant unto your petitioner such further and general relief as equity and the law in such case made and pro- vided may require, C D , Petitioner, J^— H , By Counsel/' Solicitor for the Petitioner. No. 189. J1009. For leave to file a bill of review for errors apparent upon the face of the decree. (As in N(}. 1S5 to the *.) Then proceed as follows: The petition of A B , the above named complainant, respectfully represents that on the day of — ■ — , 18 , the petitioner filed his bill in this honorable court against C D , for the purpose of (Here state the object of the hill); and praying (Here state the prayer of the bill). And yt)ur petitioner further represents that the said C D being served with process, appeared and put in his an- swer thereto ; to which a replication was filed, and the said case being at issue, witnesses were thereupon examined and the proofs closed. And that said case was brought to a hear- ing before your honor on the day of , 18 ; where- upon a decree was rendered to the following effect : (Here set forth the substance of the decree).* And your petitioner further represents that he is advised that the said decree is erroneous, and ought to be reviewed, re- Versed and set aside for many apparent errors and imperfec- tions, among which are the following : First. The court erred in (Here set forth the error com- plained of). 13 The above form is constructed sec. 3233, and differs very little from the requirements of the Code, from form No. 187, the principles W. Va., Ch. 124, sec. 14, nnd a like governing the two being practically statute, in Virginia, Code (1887), the same. FOEMS PETITIONS. 1253 Second. The court erred in (Here set forth the further er- ror and continue until all the errors are assigned). For all whieli errors and imperfections in said decree appear- ing on the face thereof, your petitioner is desirous of bringing *iis bill of review to be relieved in the premises. Your petitioner therefore prays that leave may be granted tx) him to file a bill of review against the said C D for the purpose of having the said decree reviewed, reversed and set aside; and that no further proceedings may be had under the same. A B , J H , By Counsel." Solicitor for the Petitioner. No. 190. §1010. For leave to file a bill of review upon discovery of new matter. (As in Nos. 185 and 189, respectively, to the * ) Then proceed as follows: And your petitioner further represents that since the rendi- tion of said decree your petitioner has discovered new matter of consequence in the said suit, particularly that (Here set forth the new evidence distinctly and specifically) ; which new mat- ter your petitioner did not know, and could not, by reasonable diligence, have known, so as to make use thereof in the said cause, previous to and at the time of pronouncing the said de- 11 As we have already seen, ante, of the suit and usual address, was sec. 214, it is not now the practice in the following form : in the Virginias to apply for leave " We respectfully ask you to ex- to file a bill of review for error amine the accompanying "bill, which of law apparent upon the face of contains the bill, Enos Smith's an- the decree; but, when application swer, and the decree awarded, and tor leave is made, it is usual to do being advised by counsel that the so by petition or motion. Ante, sec. cause ought to be reviewed, we 215. humbly ask your honor's leave to In Martin vs. Smith, a.'i W. Va. file said bill." 597, as appears by the printed rcc- The petition was .signed by the ord in that case, the application was plaintiffs in the bill of review and by petition, which after the style by their counsel. 1254 EQUITY PEOCEDUEE. cree ; because, as your petitioner avers. (Here state why it could not have been known by reasonable diligence.) Your petitioner further sheweth unto your honor that he first learned of the newly-discovered evidence about (Here state when it was first discovered). And your petitioner further sheweth unto your honor that he is advised that the said new matter (Here state its bearing on the decree). And your petitioner further sheweth unto your honor that he is advised that the new matter above specified is relevant and material evidence to the matter involved in said suit, and such as would probably have produced a diflierent result had it been used at the hearing of said cause, and such as would call for a different decree from that which was rendered. And your petitioner further represents unto your honor that the said evidence is not merely confirmatory or c^imulative, nor does it go to impeach the character of any witness o-r witnesses already examined in the cause. Your petitioner therefore prays that he may be at liberty to file a bill of review for the purpose of having the said decree reviewed, reversed and set aside, and that no further proceed- ings be had under the same. A B , H A S , By Counsel." Solicitor for the Petitioner. (The' foregoing must be verified by affidavit as in No. 269a.) Upon the petition was the fol- of the court, as the bill was left lowing endorsement: with the clerk, a precipe then lodged " Leave is hereby given to file with him, and the process upon the the within bill of review upon the bill of review duly issued. usual terms and conditions. It seems to us that in the mat- J. Smith, ter of a bill of review for error ap- Judge of the Circuit Court parent upon the face of the decree of Mason County." the plaintiff should proceed as in With the following direction to any other chancery cause, as matter the clerk: of course. " To the Clerk of the Circuit Court is This form is based on one found of Mason County, West Virginia:" in Puterbaugh's Ch. PI. ind Pr. The application to file this bill of (3rd ed.) 316, and ante, sees. 212- review in Martin vs. Smith, supra, 218. was evidently made in the vacation I-OEMS DEMUBKEES. 1255 CHAPTER XLI. DEMURRERS. Sec. 1011. Title. Sec. 1012. Joint and several demurrer. Sec. 1012o. Introduction to a demurrer to the whole of a bill. Sec. 10126. Where the demurrer is to part of the bill, or to the relief. Sec. 1012c. General words of conclusion to a demurrer to the whole of the bill. Sec. 1013. The usual form of demurrer in the Virginias. Sec. 1014. Another common form of demurrer in the Virginias. Sec. 1015. Demurrer for want of parties. Sec. 1016. Demurrer for multifariousness. Sec. 1017. Demurrer to a bill filed by an infant without u next friend. TITLE AND COMMEN'CEMElSrT. No. 191. Of a single defendant. §1011. Title, State of , County of , to-wit : In the Circuit Court thereof. A B -, Plaintiff, 1 vs. >In Chancery.^ C D , Defendant J *The demurrer of C. D., defendant, to the bill of complaint of A. B., the above named plaintiff. or The demurrer of John Jones (in the hill hy mistake called William Jones), the above named defendant (or one of the above named defendants) to the, etc. 1 In giving the title, where there are several defendants, name them, or say " C. D. and others." 1256 EQUITY PEOCEDDEE. 'No. 192. §1012. Joint and several demurrer. (After the style of the cause as in No. 191 to the * and nam- ing the other defendants.) The joint and several demurrer of C. D. and E. F. the (or two of the) above named defendants, to the, etc. or The joint demurrer of C. D. and E. F., his wife, the (or two of the) above named defendants, to the, etc." No. 192a. § 1012a. Introduction to a demurrer to the whole of a bill. (Style of the cause as in No. 191.) This defendant (or these defendants, respectively,) by prot- estation, not confessing or acknowledging all, or any of the matters and things in the said complainant's bill to be true, in such manner and form as the same are therein set forth and alleged, * doth (or do as the case may he) demur thereto, and for cause of demurrer, showeth (or show), that, etc. No. 192&. § 1012b. Where the demurrer is to part of the bill, or to the relief. (As in No. 192a to the *) as to so much and such part of the bill as seeks that this defendant (or these defendants) may answer and set forth whether, etc. ; and whether, etc. ; and prays, etc. ; (if relief he prayed) ; doth (or do) demur, and for cause of demurrer showeth (or show).^ 2 The above forms of title are jurisdictions, but which has been taken from Lube's Eq. PI. 471. superseded by the simpler statutory 3 We have given the formal de- form in the Virginias, murrer recognized in all chancery FORMS DEMUEEERS. 1257 CONCLUSION. No. 192c. § 1012c. General words of conclusion to a demurrer to the whole of the bill. Wherefore this defendant (or these defendants, respectively,) demands * (or demand) the judgment of this honorable court, whether he shall be compelled to make any further or other an- swer to the said bill, or any of the matters and things therein contained, and prays (or pray) to be hence dismissed, with his (her, or their) reasonable costs in this behalf sustained. A. B., By Counsel. or, Wherefore, and for divers other errors and imperfections, this defendant humbly demands, etc. (As in form No. 192c from, the *.) No. 193. §1013. The usual form of demurrer in the Virginias. State of , County of . In the Circuit Court. A B , 1 vs. !-In Chancery. C D^— , *The defendant says that the bill filed in this cause is not sufficient in law. J M D — — , Solicitor. 1258 EQUITY PKOCEDURE. No. 194. §1014. Another common form of demurrer in the Virginias. (Follow form No. 193 to the * and then proceed as follows:) The defendant demurs to the bill filed in this suit, and for cause of demurrer says * that said bill is not sufficient in law. J M B , Solicitor for the Demurrant. ITo. 195. §1015. Demurrer for want of parties. (Here follow form No. 192 to the * and No. 19 It to the * and then proceed as follows:) That it appears by the said complainant's said bill that G. H., therein named, is a necessary party to the said bill, inas- much as it is therein stated that C. D., the testator in the said bill named did in his lifetime, by certain conveyances made to the said G. H., in consideration of $ , convey to him, by way of mortgage, certain estates in the said bill particularly mentioned and described, for the purpose of paying the said testator's debts and legacies ; but the said complainant has not made the said G. H. a party to the said bill. Wherefore, etc. (As in No. 192c.) ISTo. 196. §1016. Demurrer for multifariousness. (Follow forms Nos. 193, 19 It, respectively, to the * and then proceed as follows:) That it appears by the said bill that the same is ex- hibited by the said complainant against this defendant, C. FORMS DEMUEEEES. 1259 D., E. F. and G. H., as defendants, for several distinct mat- ters and causes,' in many whereof, as appears by the said bill, this defendant is in no way interested; and, by reason of such distinct matters, the said bill is drawn out to a considerable length, and this defendant is compelled to take a copy of the whole thereof; and by joining distinct matters together, which do not depend on each other, the proceedings in the progress of the said suit will be intricate and prolix, and this defendant put to unnecessary charges and expenses in matters which in no way relate to, or concern him. ( Concluded >as in No. 192c.) No. 197. §1017. Demurrer to a bill filed by an infant without a next friend. (Follow forms Nos. 193, 19^, respectively, to the * and then proceed as follows:) That the said complainant, who appears by the said bill to be an infant under the age of twenty-one years, hath exhibited his said bill without any person being therein named as his next friend. (Conclude as No. 192c.) 1260 EQUITY PKOCEDUEE. CHAPTEE XLII. PLEAS IN ABATEMENT. See. 1018. To the jurisdiction of the court. Sec. 1019. To the jurisdiction of the court. — Another form. Sec. 1020. Of want of proper parties. See. 1021. On the ground of the plaintiff's infancy. Sec. 1022. On the ground of plaintiflF's insanity. Sec. 1023. Of the pendency of another suit. Sec. 1024. Controverting the existence of the grounds upon which an order of attachment was issued. No. 198. §1018. To the jurisdiction of the court. State of , County of M • In the Court of said County. A B^— , vs. In Chancery. C D . *This defendant, in his own proper person, for plea to the said bill and the jurisdiction of the court herein, says, that before and at the commencement of the said suit of the said A B^ , he the said C T> , was, and from thence hitherto has been, and still is, residing in the County of N" , in the State of West Virginia, and not in the said County of M ; and tliat the cause of action herein sued on did not, nor did any part thereof, arise in the said County of M ; but that the said cause of action herein sued on did arise, and every part thereof arose, in the said County of N (or in any other county, except the one where suit is brought, as the FOEMS PLEAS IN ABATEMENT. 1261 case may he). And this he is ready to verify; wherefore he prays judgment if the court will take cognizance of the suit aforesaid. E F , Counsel. C D . (Append affidavit as in No. 259.) No. 199. 1019. To the jurisdiction of the court. — Another form. In the Circuit Court of the County of M , State of • Eules, 18- Jaraes E. Eaynors. Defendant, ] ads. !- In Chancery. William W. Williams, Complainant. J The plea of James E. Eaynors, defendant tb the bill of com- plaint exhibited against him and C. C. in this court by William W. Williams. This defendant, for plea to the said bill, saith that he is now, and was at the time of the institution of this suit, a resi- dent of the County of N , State of , and not a resident of the County of M , State of ; that his co-defendant, C. C.^ is now and was at the time of the institution of this suit, also a resident of the County of IST , and not a resident of the County of M , and that they are the sole defendants in the said suit, and that said suit is brought to subject to the alleged judgment of the said plaintiff certain land, every part whereof lies in the County of IST — — , and not any part thereof in the County of M . And this he is ready to verify; wherefore, the defendant doth plead to the jurisdiction of the said court, and prays the judgment of the court whether the court will take cognizance of the said suit. E. F.; Counsel. James E. E. (The above plea must he duly sworn to.)^ 1 A plea to the jurisdiction is es- sentially the same in equity as at law, 4 Minor, Inst. Pt. II, p. 1115. 1262 EQUITY PROCEDUEE. j\0. 200. §1020. Of want of proper parties. (As in No. 198 to the * and then as follows:) This defendant for plea to the said bill, says that as to so much of the complainant's bill as seeks an account from this defendant, as executor and heir-at-law of E. F., deceased, in the said bill named, this defendant's late brother, for what re- mains due and owing upon the bond in the said bill mentioned, bearing date on the day of , 18 , and payment by this defendant as such executor and heir-at-law of the said E. F., deceased, as aforesaid, of what he found due on taking such account; this defendant doth plead thereto, and for plea says, that no part of the sum of dollars, for securing the re-payment whereof the said bond was executed, was paid to, or secured by the said E. E., but that the whole was paid to G. H., in the said bond and in the said bill also named, and re- ceived by him for his sole use, and that the said E. E. was only a surety for the said G. H., and that the complainant after- wards accepted a composition for what he alleged to be due on the said bond from the said G. H., without the privity of the said E. F. in his lifetime, or this defendant since the death of the said E. F., which took place on or about the day of , 18 , as in the said bill mentioned, since which no demand has been made on this defendant for any money al- leged to be due on the said bond ; and that the said G. H. died several years ago seized of considerable real estate, and also possessed of a large personal estate; and that his heir-at-law, or the devisee of his real estate, and also the representative of his personal estate, ought to be, but are not, made parties to the said bill. The defendant therefore doth plead the foregoing matters and things to the whole of the said bill, and demands the judg- ment of this honorable court whether he ought to be compelled to make any answer to the said bill of complaint; and prays FOEMS PLEAS IN ABATEMENT. 1263 to be hence dismissed with his reasonable costs in this behalf most wrongfully sustained. C. D., E. r., By Counsel. Solicitor for the Defendant. (Verify the above plea by affidavit.)' No. 201. §1021. On the ground of the plaintiff's infancy. (As in No. 198 to the * and then as follows:) This defendant for plea to said bill, says that the said com- plainant, at the time of filing his said bill, was and now is an infant under the age of twenty-one years, that is to say, of the age of or thereabouts. (Add prayer as in No. 202.) H. G., C. H., Solicitor for the Defendant. By Counsel. (Verify the above plea by affidavit.)^ No. 202. §1022. On the ground of plaintiff's insanity. (As in No. 198 to the * and then as follows:) This defendant for plea to said bill says that the complain- ant who, by himself alone, attempts to sustain an injunction in this suit, before and at the time of filing his said bill, was duly found and declared to be a lunatic, under and by virtue of a commission of lunacy, duly awarded and issued against 2 See the author's PI. and Forms 3 See Mit. & Tyler, Eq. PI. and 244; ante, sec. 234; Puterbaugh's Pr. 589; 3 Daniell, Ch. PI. and Pr. Ch. PI. and Pr. (3rd ed.) 145. 2097. 1264 EQUITY PEOCBDUEE. him, as by the inquisition thereon (a true copy whereof is now in this defendant's possession, and ready to be produced to this honorable court) to which this defendant craves leave to refer, will more fully appear ; and which said commission has not hitherto been superseded, and still remains in full force and effect; and the said A. B., therein named, and the said plain- tiff is, as this defendant avers, one and the same person, and are not other and different persons. *Wherefore, this defendant humbly, prays judgment of this court whether he shall be compelled to make any further or other answer to the said bill of complaint, and prays to be dis- missed with his reasonable costs and charges in this behalf sus- tained. C. D., H. I., By Counsel. Solicitor for Defendant. (Verify the above plea by affidavit.)* iro. 203. §1023. Of the pendency of another suit. (As in No. 198 to the * and then as follows:) This defendant for plea to said bill, says that on the day of , 18 — ■ — , the said present complainant exhibited his bill of complaint in this honorable court against this de- fendant and one E. F. for an account of the moneys raised by the sale of the goods and property in the complainant's present bill mentioned, and claiming such shares and proportions there- of, and such rights and interests therein, as he now claims by his present bill; and praying relief against this defendant in the same manner, and for the same matters, and to the same effect as the complainant now prays by his said present bill ; and this defendant and said E. F. appeared and put in their *See Tyler's Mit. Eq. PI. and Pr. (6th Am. ed.) 2097; Lube Eq. PI. 589, 590; 3 Danieil, Ch. PI. and Pr. 481; ante, see. 285. FOEMS PLEAS IIJ ABATEMENT. 1265 'answer to the said former bill, and the eomplamant replied thereto; and the said former bill, and the several proceedings in the said former cause, now remain depending, and as of record in this honorable court, the said cause being yet unde- termined and undismissed. (Add prayer as in No. 202.) M. M., C. D., Solicitor for Defendant. By Counsel. (Verify the above plea by affidavit.)^ No. 204. §1024. Controverting the existence of the grounds upon which an order of attachment was issued. (As in No. 198 to the * and then as follows:) And the said defendant for plea to the attachment issued in the above entitled cause says, that the plaintiil ought not to maintain his said attachment because this defendant says that the grounds stated in plaintiff's affidavit for the attachment issued in this cause did not exist at the time of the making and filing said affidavit, to-wit: (here set out verbatim the grounds in plaintiff's affidavit denied). The defendant therefore denies that any ground or grounds existed for an attachment in the above cause as set forth and specified in the said affidavit filed herein, and upon which the attachment in this cause was issued. The defendant therefore prays that the issue arising upon the plea of this defendant be tried by a jury, and if the verdict thereon shall be for this defendant, this defendant further : Puterbaugh, Cli. PI. and Pr. 145. 1266 EQDITY PEOCEDUKE. prays that judgment be entered that the said attachment issued in the above cause be abated. C. D., J. W. C, By Counsel' Solicitor for the Defendant. (Verify the above plea iy affidavit.) 8 The above farm is constructed ment, although if the issue be found from the eases of Anderson vs. Ka- in favor of the defendant it defeats nawha Coal Co., 12 W. Va., 526; the attachment sued out in the Tingle vs. Brison^ 14 W. Va., 295; cause, yet it is properly classed, be- ante^ sees. 78i, 782. cause another affidavit may be filed It will be observed that the fore- and another order of attachment is- going plea is classed as one in abate- sued. BOKMS PLEAS IN BAB, 126'i Sec. 1025. See. 1026. Sec. 1027. Sec. 1028. See. 1029. See. 1030. See. 1031. See. 1032. Sec. 1033. Sec. 1034. See. 1035. CHAPTER XLIII. PLEAS IN BAR. Of the statute of limitations. Of the statute of frauds to a bill for specific performance. Of dismissal of former suit for same matter. Of judgment at law for same matter. Of release. Plea of stated account Of a will 01 award. Of purchaser for valuable consideration without notice. To bill of interpleader. That plaintiff not administrator as alleged, because supposed intestate is living. See. 1036. To bill of discovery that another suit is pending for the same discovery. Sec. 1037. The complainant has no interest in the lands, the title of which he seeks to discover. See. 1038. That the discovery would subject defendant to forfeiture. See. 1039. That discovery would compel the defendant to betray confidence as an attorney. Sec. 1040. To a bill of revivor. Sec. 1040a. Of bankruptcy. No. 205. §1025. Of the statute of limitations. (As in No. 198 down to the * and then as follows:) This defendant for plea to said bill, says that if the complain- ant ever had any cause of action or suit against this defendant for or concerning any of the matters in tlie said bill men- tioned, which this defendant doth in no sort admit, such cause of action or suit did accrue or arise above — — years (here in- sert the period in which the. matter is harred) next before the filing of the said bill, or next before serving or suing out proc- 1268 EQUITY PROCEDURE. ess against this defendant to appear and answer said bill; nor did this defendant at any time within years next before the said bill was exhibited, or process served on or issued out against this defendant, to appear to answer the same, promise, or agree to come to any account for, or to make satisfaction, or to pay any sum or sums of money for or by reason of the said matters charged in said bill. *A11 of which matters and things this defendant doth aver and plead in bar of the complainant's present bill of complaint, and prays the judgment of this court, whether he shall be com- pelled to make any further answer to said bill, and prays to be hence dismissed with his reasonable costs in this behalf sus- tained. C. D., G. H., By Counsel.' Solicitor for the Defendant. No. 206. §1026. Of the statute of frauds to a bill for specific performance. (As in No. 198 to the * and ihen as follows:) As to so much of said bill as seeks to compel this defendant to perform the agreement in said bill mentioned to have been made and entered into between the complainant and this de- fendant, for the sale by this defendant unto the complainant of a certain tract or parcel of land in the bill mentioned a:nd described, or as seeks to compel this defendant to execute a conveyance of such tract or parcel of land to the comphiinant, pursuant to any such agreement, or as seeks any other relief relating to such tract or parcel of land, or as seeks any dis- covery from this defendant concerning any agreement made or entered into between the complainant and this defendant, for 1 See the author's PI. and Forms 249; Sands' Suit in Eq. 289, 290; Tyler's Mit. Eq. PI. and Pr. 595. rOBMS PLEAS IK BAE. 1269 sale by this defendant to the complainant of the said tract or parcel of land, and not reduced into writing, signed by this defendant, or some person by him thereunto lawfully author- ized. For plea thereto this defendant says: That neither this defendant, nor any person by him author- ized, did ever sign any contract or agreement in' writing for making and executing any sale or conveyance to the complain- ant of the land and premises in the bill mentioned and de- scribed, or any interest thereof, or to any such effect, or any memorandum or note in writing of any such agreement. All which this defendant doth aver and plead in bar to so much and such parts of said bill as seeks to compel this defendant to perform the agreement in said bill mentioned to have been made and entered into between the complainant and this de- fendant, and prays the judgment of this court whether he shall be compelled to make any further answer to so much of said bill as seeks to compel this defendant to perform the agreement in said bill mentioned as aforesaid, and prays to be hence dis- missed as to this part of the plaintiff's bill with his reasonable costs in this behalf sustained. C. D., J. K., By Counsel. Solicitor for the Defendant.^ No. 207. §1027. Of dismissal of former suit for same matter. (As in No. 198 to the * and then as follows:) This defendant for plea to the said bill, says that the said complainant heretofore, to-wit : on the day of ; 18 , exhibited his bill of complaint in the court of against this defendant, by which bill the said complain- 2 See Tyler's Mit. Eq. PI. and Pr. note, 656 and note; Sands' Suit 595; 1 Daniell, Ch. PI. and Pr. (6th in Eq. 290. Am. ed.) 561, 618, 619, 655 and 3270 EQUITY PEOCEDURi;. ant sought to subject the land of this defendant, lying and being in the County of ■ , containing acres, and being the same land mentioned in the bill to which this is a plea, to the payment of the judgment of the said complainant being the same judgment mentioned in the present bill of complaint, and the said complainant in his said former bill of complaint, alleged that that said judgment was a lien on the said land, as he has alleged in the present bill, and prayed for the identical relief against this defendant's said land that he has prayed for in his present bill ; and to the said former bill this defendant filed his answer, denying that his said land was subject to the said judgment, and examinations of witnesses for the said com- plainant and for this defendant were had and taken, and said former bill of complaint with the said answer and the examina- tions of witnesses came to a hearing before the said court of , and the said court, after full hearing thereof, on the day of , 18 , dismissed the said former bill, and decreed and ordered that the said complainant should pay to this defendant his costs by him about his decree in that behalf ex- pended ; all which matters and things this defendant doth aver and plead in bar to the said present bill of complaint, wherefore this defendant prays judgment of this honorable court whether he shall be compelled to make any further or other answer to the said bill, and prays hence to be dismissed with his reason- able costs and charges, in this behalf most wi'ongfully sus- tained. C. D., R. M., By Counsel.' Solicitor for the Defendant. No. 208. §1028. Of judgment at law for same matter. (As in No. 198 to the * and then as follows:) This defendant for plea to said "bill, says that before the in- •1 The foregoing form is taken from Sands' Suit in Equity, (2,d ed.) 294. FORMS PLEAS IN BAR. 1271 stitution of their present bill of complaint against this defend- ant, to-wit: on the day of — ■ — , 18 , the said com- plainants instituted their action at law in the — — court of against R. M. and this defendant, by which said action at law the said complainants demanded. and claimed of the said R. M. and this defendant the sum of $ , with interest there- on from the day of ,18 , as debt due by the said E. M. and this defendant to the said complainant ; and the said H. M. and this defendant pleaded to the said action three sev- eral pleas, to-wit: the plea that the right of action did not ac- crue to the said plaintiff within five years prior to the institution of said action ; the plea that the debt therein mentioned had been fully paid by the said E. M. and this defendant; and the plea that the action of the said complainant was founded on an usurious consideration, in this, that the debt therein de- manded was for the loan and forbearance of money to the said R. M. and this defendant at a greater rate of interest than six per centum per annum, and issue being joined on the several pleas, the whole matter was submitted to a jury, who returned a verdict finding for the said E. M. and this defendant on all the pleas before mentioned, and the said court of gave judgment in favor of the said R. M. and this defendant, against the said complainant; and the debt set forth and de- clared in the said complainant's bill on which the attachment against this defendant's property issued is the same identical debt on which he instituted his action aforesaid, and on the trial of which judgment went against the said complainant as aforesaid, all which matters and things this defendant doth aver and plead in bar to the said bill of complaint of the said complainants. (Conclude as in No. 205 from the *.) L. M., C. D., Solicitor for the Defendant. By Counsel.* * The foregoing form is taken from Sands' Suit in Equity (2d ed.) 295. 1272 EQUITY PROCEDURE. ]Sro. 209. !?1029. Of release. (As in No. 198 to the * and then proceed as follows:) This defendant for plea to said bill, says that previously to the complainant's bill being filed, to-wit: on the day of , 18 , the said complainant in consideration of the sum of $ ; then paid to him by this defendant, by a certain writing under his hand and seal, ready to be produced to this honorable court, did release and forever quit claim this defendant (among other things) the several matters and things in the said complainant's bill mentioned and complained of, and an account of which is thereby sought against this defendant, and this defendant avers that the said release was freely and fairly given and executed by the said complainant, on the day the same bears date, and that the said complainant well knew the nature and effect thereof previously to executing the same ; and that the sum of $ , so paid by this defendant to the said complainant, was a full and fair equivalent for any de- mand which the said complainant could or might have against this defendant in respect to the several matters therein and in the said bill also mentioned. Wherefore this defendant pleads the said release in bar of the said complainant's bill, and prays judgment of this honorable court whether he shall be compelled to make any further or other answer to the said bill, and prays hence to be dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. J. M., C. D., Solicitor for the Defendant. By CounseP jSTo. 210. §1030. Plea of stated account. (As in No. 198 to the * and then proceed as follows:) The defendant for plea to said bill, says that on the day 6 The foregoing form is taken from Sands' Suit in Equity (2d ed.) 298. FORMS PLEAS IN BAE. 1273 of , 18 , which was previous to the said bill of com- plaint, the said complainant and this defendant did make up, state and settle an account in writing of all sums of money which this defendant had before that time, by the order and di- rection and for the use of the said complainant received, and of all matters and things thereunto relating or at any time before the said day of , IS — — , being or depending between the said complainant and tliis defendant, (and in re- spect whereof the said complainant's bill of complaint has been since filed ; ) and the said complainant, after a strict examina- tion of said account and every item and particular thereof, which this defendant avers, according to the best of his knowl- edge and belief, to be true and just, did approve and allow the same, and actually received from this defendant the sum of $ , the balance of the said account, which by the said ac- count appeared to be justly due to him from this defendant and the said complainant thereupon, and on the day of , 18 , gave to this defendant a receipt or acquittance for the same under his hand in full of all demands, which said receipt or acquittance is in the words and figures following, that is to say (liere copy the receipt) as by the said receipt or ac- quittance now in the possession of this defendant and ready to be produced to this honorable court will appear. (Conclude the foregoing as in No. 205, from the *.) K L., C. D., Solicitor for the Defendant. By Counsel. No. 211. §1031. Of a will. (As in No. 198 to the * and then proceed as follows:) This defendant for plea to said bill, says that the plaintiff claims to be heir-at-law of one John B.^ and to have inherited 6 The foregoing form is taken from Sands' Suit in Equity (2d ed.), 296. 1274 EQUITY PEOCED0EE. as such among other property a lot of land in the City of ■ — — , fronting twenty feet on the south side of street, be- tween Fourth and Fifth streets, and running back one hundred and fifty- feet to an alley ; that the said John B. being of sound mind and disposing memory prior to his death, made a last will and testament, and that the same has been duly admitted to probate in the Chancery Court of the City of E ; and this defendant further says, that by the said will so probated as aforesaid, the said J ohn B. devised the said lot of land on street to this defendant. (Conclude as in No. 205 from the *.) J. M., C. D., Solicitor for the Defendant. By Counsel.'' No. 212. §1032. Of award. (As in No. 198 to the * and fLmi proceed as follows:) This defendant for plea to the said bill, says that disputes having arisen between the said complainant and this defend- ant concerning (here state subject of dispute) , for the settling of all such disputes the said complainant and this defendant agreed to submit the same to the final judgment, award, and arbitration of A. E., and the said A. E. having taken upon himself the burden of said award, after having at large heard, read and duly weighed and considered all and singular the al- legations, proofs and evidences brought before him did on the ■ day of , 18 , make his final award in writing under his hand and seal of and concerning the matters of dis- f The foregoing form is taken pleaded to a bill by an heir at law from Sands' Suit in Equity (2d praying for production of docu- ed. ), 30s. ments, and an injunction to re- This plea may be pleaded in bar strain the defendants from setting to a bill ' brought on a ground of up legal impediments, in an action equity by an heir at law against a of ejectment commenced by him devisee, to turn the devisee out of against them." Sands' Suit in possession. But a will cannot be Equity (2d ed.), 266. FORMS PLEAS IN BAE. 1275 pute aforesaid, and did thereby award and find (here state substance of award), as by the said award, reference being thereto had, will more fully appear; and this defendant avers that the matters complained of in said complainant's bill were embraced in said award, and that the said award hath hitherto remained and still is unimpeached and in full force and effect: and this defendant avers that he hath paid in full to the said complainant the sum of money awarded him by said award, and that the said award was made and said payraent was made previously to the said complainant's bill being filed in this honorable court. (Concluded as in No. 205, heginning at the *.) M. 0., C. D., Solicitor for the Defendant. By Counsel.' No. 213. §1033. Of purchaser for valuable consideration without notice. (As in No. 198 to the * and then proceed thus:) This defendant to so much of the said bill as seeks to subject the land in the bill mentioned to the payment of the judgment of the plaintiff recovered of the defendant E. M., doth plead there- to, and for plea saith, that A. B. previously to and on the day of , 18 , was, or pretended to be seized in fee sim- ple, and was in, or pretended to be in actual possession of all the said land, in the said bill particularly mentioned and described, free from all incumbrances whatsoever ; and this defendant, be- lieving that the said A. B. was so seized and entitled, and that the said land was in fact free from all incumbrances, on the day of , 18 , agreed with the said A. B. for the absolute purchase of the fee simple and inheritance thereof; whereupon a deed was executed to the said defendant, by the said A. B. conveying said land to the said defendant, and 8 The foregoing form is taken from Sands' Suit in Equity ( 2d ed. ) , 301. 1276 EQUITY PEOCEDUEE. the same was thereupon duly recorded ; and this defendant doth aver, that the said sum of $ , the consideration money in the said deed mentioned, was actually paid by this defendant to the said A. B., and this defendant doth also aver, that at or before the time of the execution of the said deed by the said A. B. to this defendant, and the payment of the said purchase money, he, this defendant, had no notice whatsover of the daim of the said R. M. to the said land, or of the said plaintiff, that in any wise aifected the said land, so purchased by this de- fendant as aforesaid, or any part thereof; and this defendant insists that he is a bona fide i>ur chaser of the said land for a good and valuable consideration, and without any notice of the said claim of said E. M., or of said plaintiff; all which matters and things this defendant avers and pleads in bar to so much of the said complainant's bill as is hereinbefore particularly mentioned ; and prays the judgment of this honorable court, whether he should make any further answer to so much of the said bill as is hereinbefore pleaded to ; and this defendant, not waiving his said plea, but relying thereon, and for better sup- porting the same, for answer saith, that he had not at any time before, or at the time of purchasing the said land, or since, until the said complainant's bill was filed, any notice whatsoever either expressed or implied of the said claim of said E. M. to the said land or of the said plaintiff, or that the same or any other incumbrance whatsoever was charged upon or in any wise affected the said land so purchased or any part thereof. (Here may follow other statements in the ansu>er. If, for ex- ample, particular instances of notice Or circumstances of fraud are charged in the hill, they must fee denied as specifically as charged in the bill and not evasively, and this special and par- ticular denial of notice or fraud must he by way of answer.) (Conclude as No. 21^2.) J. K, C. D., Solicitor for the Defendant. By Counsel.' The above form is taken from the defense of purchase for valua- Sands' Suit in Equity (2d ed.), ble consideration without, notice 309. cannot be made to a suit brought^to In Hanod vs. Myers, 21 Ark. 592, cancel a, deed on account of the 76 Am. Dec. 409, it is decided that grantor's infancy. FORMS PLEAS IN BAE. 1277 JSTo. 214. §1034. To bill of interpleader. (As in No. 198 to the * and then proceed thus:) The defendant for plea to said bill, says that he is advised that the complainant, by his bill, seeks to compel this defend- ant, and John Jones, another dffendant to said bill, to inter- plead touching the sum of dollars in his said bill men- tioned to have been due from the complainant to the personal estate of Nathan Hale, deceased; to which bill this defendant doth plead, and for plea saith, that the said Nathan Hale, in his lifetime, made his last will and testament and appointed this defendant sole executor thereof; and this defendant saith, since his death, he hath duly proved his will before the proper court, and hath obtained letters of administration of the per^ sonal estate and effects of the said Nathan Hale, to be granted to him by such court, as the executor named in the said last will ; and therefore this defendant hath alone a right to receive the said sum of dollars from the complainant, and to give him effectual discharge for the same ; and this defendant doth aver that the title of the said John Jones, if any he has, to the said sum of dollars, is by virtue of, and under the said will of the said Nathan Hale, and as a specific legacy given to him by the said will. Wherefore this defendant is advised the complainant has no right to compel the said John Jones, and this defendant to interplead, touching the said sum of dollars. (Conclude as in No. 202, beginning at the *.) J. M., C. D., Solicitor for the Defendant. By Counsel. Wo. 215. §1035. That plaintiff not administrator as alleged, because sup- posed intestate is living. (As in No. 198 to the * and then as follows:) The defendant for plea to said bill, says that J. J. in the said bill named, (to whom the said complainant alleges that he 1278 EQUITY PEOCEDUEE. has obtained letters of administration, and by virtue of which, letters of administration, and also under the pretense of his be- ing the heir-at-law of the said J. J., the said complainant has commenced and prosecuted this suit,) was at the time the said complainant filed his said bill, and still is, alive at P , in , (Here name the State or Country). Therefore this de- fendant demands the judgment of this honorable court, whether he shall be compelled to answer the said complainant's bill ; and humbly prays to be dismissed with his reasonable costs in this behalf siistained. J. M., C. D., Solicitor for the Defendant. By Counsel.^" (Verify the foregoing plea by affidavit.) No. 216. §1036. To bill of discovery that another suit is pending for the same discovery. (As in No. 198 to the * and then proceed thus:) The defendant for plea to so much and such part of the said complainant's bill as seeks a discovery from this defendant of (Here set out the discovery sought), this defendant doth plead thereto, and for plea saith that long before the said com- plainant's bill was filed in this honorable court, and on or about the day of , 19 , the said complainant commenced a suit in the Court, against this defendant in respect of the matters as to which a discovery is sought by the complainant's bill, and that such suit is still depending in 10 The foregoing plea is taken with pleas in bar, its veriflcatinn from Curt. Eq. Prec, p. 159. is advised. If sworn to it does not The foregoing plea may either be affect its validity as a plea in bar, one in abatement or in bar, accord- and if a plea in abatement it is ing to the nature of the relief de- required to be so verified, manded. While it is classed here FORMS • • PLEAS IN BAR. 1279 the said court, which, as this defendant avers, is a court of competent jurisdiction to afford the discovery which the said complainant seeks by his said bill. Therefore, this defendant avers and pleads the same to the said complainant's bill, and prays the judgment of this honorable court whether it will hold plea upon and enforce this defendant to answer the said com- plainant's said bill, for the cause aforesaid. J. M., C. D., Solicitor for the Defendant. By Counsel.^^ No. 217. §1037. The complainant has no interest in the lands, the title of which he seeks to discover. (As in No. 198 to the * and then as follows:) The defendants for plea to so much of the complainant's bill as seeks to compel these defendants to set forth and discover their respective titles in and to the lands and tenements in the bill of complaint mentioned, or any part thereof, say, that the said complainant hath sold and conveyed away unto John Jo7ies of Boston, in the County of Suffolk, and Commonwealth of Massachusetts, all his estate, title, interest or claim of or to the said lands and tenements in his said bill of complaint men- tioned. Wherefore these defendants are advised that the com- plainant has no interest of, in or to the said lands and tene- ments ; and they therefore pray the judgment of this honorable court whether they shall be compelled to make any further or other answer to the said bill of complaint in this particular, and pray to be hence dismissed, with their reasonable costs and charges in this behalf most wrongfully sustained. J. M., C. D. and E. F., Solicitor for the Defendant. By- Counsel.^" 11 The foregoing form is taken 12 The foregoing form will be from 3 Barb. Ch. Pr. (2d ed.), No. found in 3 Barb. Ch. Pr. (2d ed.), 331. No. 344. 1280 EQUITY PKOCEDURE. Xo. 218. §1038. That the discovery would subject defendant to forfeiture. (As in No. 198 to the * a7id then as follows:) The defendant, to so much and such part of the said com- plainant's bill as seeks to compel this defendant to set forth and discover whether (here set forth the discovery sought), this defendant doth plead thereto, and for plea saith that to make the said discovery sought by the said bill would subject this defendant to the pains and penalties imposed by the laws and statutes of Virginia on those who (here set forth the tenor of the statute imposing the penalty); and this defendant's an- swer to the said complainant's bill, in case he should thereby admit, etc., might be received and read in evidence against him, this defendant, in the proper court of this State, in any suit or prosecution to be there commenced against him, this defendant, for such offense. Wherefore this defendant doth plead the several matters aforesaid, in bar to such discovery as aforesaid as is sought by the said bill, and humbly prays the judgment of this honorable court, whether he is bound to make any further or other answer thereto.- G. D., M. N., By Counsel." Solicitor for the Defendant. JSTo. 219. §1039. That discovery would compel the defendant to betray confidence as an attorney. (As in No. 198 to the * and then as follows): The defendant to so much and such part of said bill as 13 The foregoing form is taken from Sands' Suit in Equity (2d ed.). 31o. FORMS PLEAS IN BAK. 1281 seeks a discovery from this defendant of tlie title of W. W., another defendant in the said bill named, to all or any of the lands, tenements, or hereditaments, late of C. W., his late grandfather, deceased, in the said bill also named ; this de- fendant doth plead thereto, and for plea saith that he, this defendant, is duly admitted and sworn an attorney, duly licensed and practicing as such in the courts of , and has for several years past practiced, • and novf practices as such ; that this defendant was employed by C. W., deceased, the late father of the said other defendant, W. W., in the lifetime of the said C. W., and since his decease hath also been employed in that capacity, by the said other defendant, J. W., the mother and guardian of the said W. W. since he attained his age of twenty-one years ; and in that capacity only, or by means of such employment only, hath had the inspection and perusal of any of the title deeds of and belonging to the said estate, or any part or parts thereof for the use and service of his said clients, and therefore ought not, as this defendant is advised, to be compelled to discover the same. Wherefore this de- fendant doth plead the several matters aforesaid in bar to such discovery as aforesaid as is sought by the said bill and hum- bly prays the judgment of this honorable court whether he is bound to make any further or other answer thereto. C. D., J. M., By Counsel.". Solicitor for the Defendant. No. 220. §1040. To a bill of revivor. (As in No. 198 to the * and then proceed thus): The defendant for plea to said bill, says that the said plain- tiff is not, as stated in the said bill of revivor, the personal 1* The foregoing form is taken from Sands' Suit in Equity (2d ed.), 314. 1282 EQUITY PEOCEDUEE. representative of A. B., deceased, the testator therein named,. and as such entitled to revive the said suit in the said bill of revivor mentioned, against this defendant ; but the said plain- tiff is the administrator only of E. F., deceased, vfho died in- testate on the • day of , 18 , last, and vs^as sole executor of the said A. B. ; and that letters of administration of the goods and estate of the said A. B. unadministered by the said E. E. in his lifetime, have since the death of the said E. F. been duly granted by the proper court to G. H., who thereby became, and novf is, the legal personal representative of the said A. B. Wherefore the said defendant demands judgment of this honorable court, vs^hether he shall be com- pelled to answer the said plaintiff's bill, and humbly prays to be dismissed with his reasonable costs in this behalf sus- tained. C. D., J. M., By Counsel." Solicitor for the Defendant. ]Sro. 220a. § 1040a. Of bankruptcy. B- vs. C D- E F and G H . In Chancerv. In the Circuit Court in the County of and State of The defendant, G. H., for plea to said bill, says that this defendant, on the day of August, 1899, at that time re- siding in the district of , by petition setting forth to the best of his knowledge and belief the name of his creditors, 15 The foregoing form is taken from Mitford & Tyler's PI. and Pr. in Equity, 596. FOEMS PLEAS IN BAE. 1283 their respective places of residence, the amount due each, to- gether with an accurate inventory of his property, rights and chattels of every kind and description and the location and situation of each and every parcel and portion thereof, veri- fied by his oath, applied to the District Court of the United States of the said district of , by filing said petition in the office of the Clerk of said District Court for the benefit of an act of Congress entitled " An act to establish a uniforha sys- tem of bankruptcy throughout the United States," approved July 1st, 1898, and in said petition he, the said G. H., de- clared himself unable to meet his debts and engagements. And the said defendant further in fact says that on the 21st day of August, 1899, at , in said district, upon the hearing upon said petition by said District Court, defendant was declared a bankrupt by a decree of said court. And the said defendant further in fact says that on the day of August, 1899, he filed his petition in the ofiice of the Clerk of said District Court, vs^hich had declared him a bankrupt, for a full discharge from all his debts provable in said bankruptcy, to be decreed and allovped, and a certificate thereof granted him by said District Court. And said defendant further in fact says that he bona fide surrendered all his property and all rights of property as re- quired by said act of Congress, with the exceptions in said act mentioned, for the benefit of his creditors, and fully com- plied with and obeyed all the orders and directions, which from time to time, by said court had been entered, and other- wise conformed to all other requirements of said act of Con- gress. And said defendant further in fact says that said District Court at in said district on the day of January, 1900, decreed and allowed said defendant a full discharge from all his debts provable under said act of Congress in said matter of bankruptcy, and on the day of January, 1900, granted him a certificate of discharge. And said defendant further in fact says that said claim of A. B., now sued on, at the time of filing said petition on the day of August, 1899, to be declared a bankrupt was set 1284 EQUITY PKOOEDUEE. forth, in said petition and fully described, and was at that time a subsisting claim and then was and ever since has been prova- ble under said act of Congress in said matter of bankruptcy, and this, the said defendant, is ready to verify. (Conclude as in No. 205 from the *J G. H., J. M., By Counsel." Solicitor for the Defendant. 18 The foregoing form is construct- ruptey throughout the United ed from the provisions of "An act to States," passed by Congress in 1898. establish a uniform system of bank- POEMS MSCLAIMEK. 1285 CHAPTER XLIY. DISCLAIMER. See. 1041. A single disclaimer. Sec. 1042. Answer and disclaimer. No. 221. §1041. A single disclaimer. State of — ■ — , County, In the Circuit Court of said county. A B- vs. I In Chancery. C D This defendant, saving and reserving to himself, now and at all times hereafter, all manner of advantage and benefit of exceptions and otherwise that can or may be had and taken to the many untruths, uncertainties and imperfections in the said complainant's bill of complaint contained, for answer thereunto, or unto so much, or such part thereof as is material for this defendant to make answer unto, answers and says that he fully and absolutely disclaims all manner of right, title and interest whatsoever in and to the legacy of dollars in said bill of complaint mentioned, and all other the estate and effects of the said Thomas Atkins, deceased, in the said bill named, and in and to every part thereof; and this defendant denies all and all manner of unlawful combination and con- federacy unjustly charged against him in and by the said bill of complaint, without this that any other matter or thing in said bill contained, material or necessary for this defend- 1286 EQUITY PEOGEDUBE. t ant to make answer unto, and not herein well and sufficiently answered unto, confessed or avoided, traversed or denied, is true; all of which matters and things this defendant is ready to aver, maintain and prove, as this honorable court shall di- rect and humbly prays to be hence dismissed, with his reasona- ble costs and charges in this behalf most wrongfully sustained. C. D., E. S., By Counsel:^ Solicitor for the Defendant. (If the case he one in which an answer must he verified, then verify the disclaimer.) No. 222. §1042. Answer and disclaimer. (After the title and commencement, as the case may require, as shown in Chapter XLV, sees. 10^3-10^7, proceed as follows) : That he, this defendant, on behalf of JE. F., one of the other defendants in the said bill named, did about years ago, contract and agree with G. H. for the purchase of the lands and tenements, etc., now in question, and In possession of L. M., in the said bill also named, and another defendant thereto, which said lands and tenements, etc., at that time were, and for above years before had been in the pos- session of the said G. H. and J. K., in the said bill also named, or one of them, and for the purchase whereof this defendant, on behalf of the said defendant, E. F., agreed to give, and ac- cordingly did give and pay to the said G. H., the sum of dollars, and in consideration thereof the said G. H., and X., his wife, by deed bearing date on the day of , 18 , duly conveyed the said lands and tenements to the 1 The above form will be found in Puterbaugh's Ch. PI. and Pr. (3d ed.), 184. FOEMS DISCLAIMER. 1287 said E. F., who thereupon and under and by virtue of such conveyance as this defendant has heard and believes, and so avers, entered on and became seized of the said lands and tene- ments, and continued so seized thereof vyithout any entry or claim made by the complainant, or any other person or persons, until the day of , in the year , v^hen the said E. E., as this defendant has heard and believes and so alleges by good and sufficient conveyance in the law, and in consideration of the sum of dollars, hona fide paid, sold and conveyed tho said lands and tenements to the said defendant, L. M., and his heirs, who thereupon entered thereon, and was and yet is seized and possessed of the same ; and this defendant answering, says he does not know, nor can he set forth, as to his belief or other- wise, whether R. S., in the said bill named, was ever seized of the said premises, or any part thereof; and this defendant fur- ther answering, says he has been advised and believes and so states, that the eaid G. H., and IST., his wife, had good right and title to sell and convey the said premises so purchased by this de- fendant on behalf of the said E. F., as aforesaid ; and this de- fendant further answering, says he denies that he ever had any notice of any right or title, the complainant, or any other per- son, save as aforesaid, had or might, or could claim, of, in or to the said lands and tenements, or any part thereof ; and this de- fendant says that he never had or claimed, or pretended to have, nor has he now, nor does he claim or pretend to have any right, title or interest of, in or to the said premises, or any part thereof; and this defendant disclaims all right and title of, in and to the same, and every part thereof. (Conclude as in either No. 2Ji.l or 21^2, at the option of the 'pleader.) C. D., C. K., By Counsel.' Solicitor for the Petitioner. 2 The foregoing form is taken from Puterbaugh's Ch. PI. and Pr. (3d ed.), 185. 1288 EQUITY PEOCEDUEE. Sec. 1043. See. 1044. See. 1045. See. 1046. Sec. 1047. See. 1048. See. 1049. Sec. 1050. See. 1051. CHAPTER XLY. THE ANSWER. Of answer by one defendant. Joint and several answer. Of one of several defendants. To an answer of one defendant. To an answer of several defendants. Where defendant admits a statement. Where a defendant believes a statement may be true, but quali- fies his admission of it not knowing the same of his own knowledge. Where defendant is entirely ignorant with regard to the state- ment in the bill. Where a schedule of deeds is required to be set forth in the answer. Sec. 1052. Where an account of rents, or moneys received, or paid, is required to be set forth by several defendants. Accounts. — Reference to books containing them. Accounts refused as being useless before decree. Admission for purpose of the suit. Reference to schedule. Settled accounts. — • Claim of. Submission by trustee to act. \\Tiere the defendant relies aipcn the statute of frauds. Where the defendant relies upon the statute of limitations. A formal general conclusion. The usual conclusion. Of an infant defendant by his guardian ad litem. Of an infant to a bill or petition to sell his estate, as well also as of the guardian ad litem himself. A short and usual form for an answer. To a bill for an injunction to stay proceedings at law on a judgment, drawn to illustrate the principle permitting all defenses in equity to be made by answer. Sec. 1067. In the nature of a cross-bill setting up a claim to affirmative relief. Sec. 1068. Averring fraud in procuring contract sought to be enforced. Sec. 1069. To a bill for divorce setting up condonation. See. 1070. To a bill for divorce setting \ip recrimination. Sec. 1071. To a bill for divorce setting up a claim to affirmative relief. See. 1072. Of garnishee in attachment suit. See. 1053. Sec. 1054. Sec. 1055. Sec. 1056. See. 1057. Sec. 1058. Sec. 1059. Sec. 1060. Sec. 1061. Sec. 1062. Sec. 1063. Sec. 1064. Sec. 1065. See. 1066. FOEMS THE ANSWER. 1289 Sec. 1073. An amended answer. See. 1074. Amended answer after exceptions sustained to the original. Sec. 1075. Setting up partition by a parol agreement to a suit for partition. THE TITLE. No. 223. §1043. Of answer by one defendant. The answer of C. D., the defendant, to the bill of com- plaint of A. B., filed against him* in the Circuit Court of the County of , and State of . or The answer of C. C, the defendant, to a bill of complaint filed against him in the Circuit Court of the County of , State of , by A. B., plaintiff.^ jSTo. 224. §1044. Joint and several answer. The joint and several answer of C. D. and E. F., the de- fendants to the bill of complaint of A. B., filed against them (Then continue from the * as in form No. %2S.}' 1 This form, as here given, will ly and one speaks positively for be found in 2 Bart. Ch. Pr. (2d himself, the other may in cases ed. ), 1299; Puterbaugh Ch. PI. and where he is not charged with any- Pr. (3d ed. ), 174. thing upon his own knowledge, say 2 Taken from Puterbaugh's Ch. that he had perused the answer PI. and Pr. (3d ed.), 175; Lube and believes it to be true, 1 Har. Eq. PI., 492. Ch. 185; but, adds Harrison, it is " Two or more persons may join otherwise where the defendants an- in the same answer, and where swer separately. /6id. We have their interests are the same and no decision in the Virginia State they appear by the same counsel, courts adopting this rule. No rea- they ought to do so, unless some son is perceived why an answer of good reason exists for answering one defendant adopting totidem ver- separately. 2 Dan. Ch. Pr. (old), his the answer of another should 265; Dan. Ch. Pr. (Perk.), 742. not be deemed sTifficient." Sands' Where two defendants answer joint- Suit in Equity (2d ed.), 344. 1290 EQUITY PEOGEDUEE. No. 225. §1045. Of one of several defendants. The answer of C. J)., one of the defendants, to the bill of complaint of A. B., filed against him and others (or another as the case may be), (then continue from the * as in form No. 223.)'' THE COMMEJSTCEMENT. No. 226. §1046. To an answer of one defendant. This defendant, now and at all times hereafter, saving to himself all manner of benefit and advantage of exception which can or may be had or taken to the many errors, uncertainties and other imperfections in the said bill contained, for answer thereunto, or to so much and such parts thereof as this de- fendant is advised it is or are material or necessary for him to make answer unto, answering, says, etc. Or thus: This defendant reserving to himself all right of exception to the said bill of complaint, for answer thereto, says, etc.* No. 227. §1047. To an answer of several defendants. These defendants, now and at all times hereafter, saving and reserving to themselves, and each of them, all benefit and 3 Idem. See ante, sees. 399, 400, As to what is said as to the where various forms of titles or reservation of exceptions to the bill captions are given. made in an answer, see ante, sec. *The above form is taken from 401a. Puterbaugh'a Ch. PL and Pr. (3d ed.), 175. FOBMS THE ANSWER. 1291 advantage of exception or othei-wise, that can or may be had or taken to the many errors, uncertainties and other imperfec- tions in the said bill contained for answer thereto, or to so much thereof as these defendants are advised, is or are ma- terial or necessary for them, or any of them, to make answer unto, they, these defendants, severally answering, say, etc. Or thtis: These defendants, reserving to themselves all right of ex- ception to the said bill of complaint, for answer thereto, say, etc." COMMON FOEMS OF VAEIOTIS AVERMENTS USED IN FRAMING ANSWERS. No. 228. §1048. Where defendant admits a statement. And this defendant further answering saith he hath been informed and believes it to be true that, etc. Or, this defend- ant admits that, etc.* No. 229. §1049. Where a defendant believes a statement may be true, but qualifies his admission of it not knowing the same of Ma own knowledge. And this defendant further answering, saith he believes it to be true that at the time of his said testator's making his said will and at the time of his death the said testator's sister Jane, the wife of in the said will namedy had such chil- 5 See Puterbaugh's Ch. PI. and e The above form is taken from Pr. (3d ed.), 176. Equity Draftsman, 566. 1292 EQUITY PEOCBDUEB. dren as therein in that behalf named, but this defendant does not know the same of his own knowledge, nor can this de- fendant state as to his belief or otherwise whether she had or not any other children or child at such times or either of them. Or thus: And this defendant further saith he has never heard or been informed save by the said complainant's said bill whether, etc., but this defendant believes that, etc., as in the said bill is alleged.' ISTo. 230. §1050. Where defendant is entirely ignorant with regard to the statement in the bill. And this defendant further answering saith he knows not, and has not been informed save by the said complainant's said bill, and cannot set forth as to belief or otherwise, whether the said complainant has or not applied for or procured letters of administration of the goods, chattels, rights and credits of the said A. B. to be granted to her by and out of the proper or any or what Court, nor whether, etc. Or thus: And this defendant further answering saith it may be true for anything this defendant knows to the contrary that, etc., but this defendant is an utter stranger to all and every such matters, and cannot form any belief concerning the same.^ ^o. 231. §1051. Where a schedule of deeds is required to be set forth in the answer. And this defendant further saith he hath in the schedule to this, his answer annexed or under-written, and which he prays may be taken as part thereof, set forth according to the 'The above form is taken from sThe foregoing form is taken Ec[uity Draftsman, 566. from Equity Draftsman. 567. FORMS THE ANSWER. 1293 best and utmost of his knowledge, remembrance, information and belief, a full, true and particular list or schedule of all deeds, etc., and this defendant is ready and willing to produce and leave the same in the hands of the Clerk of this court for the usual purposes.® ISTo. 232. §1052. Where an account of rents, or moneys received, or paid, is required to be set forth by several defendants. And these defendants further severally answering say, they have in the (first) schedule to this their answer annexed or under-written, and which they pray may be taken as part thereof, set forth according to the best and utmost of their several and respective knowledge, remembrance, information and belief, a full, true and particular account of all and every sum and sums of money, etc. (Or, if an account required as to the real estate, thus: A full, true and just rental and par- ticular of all and singular the real estate, etc.)^° '^o. 233. §1053. Accounts. — Reference to books containing' them. The dealings and transactions in respect of the said trade are entered in a large book, or ledger, kept on the premises at , and the items in respect thereof are contained in one himdred and sixty-four pages, with double columns, of the said book; and to set out such items in detail would occasion very great expense; but the respondents are willing, if the court shall think proper so to direct, that the plaintiff or his » The foregoing form is taken lo The foregoing form is taken from Equity Draftsman, 568. from Equity Draftsman, 568. 1294 EQUITY PBOCEDUEE. solicitor should inspect the said book and tak6 extracts there- from at all reasonable times of the day." No. 234. §1054. Accounts refused as being useless before decree. And respondents say and submit, that it would only occa- sion great and useless expense were they in this their answer to set forth any further or fuller account of the rents and profits aforesaid ; and that the same ought to be taken, if at all, by and under the directions and decree of this honorable court.^^ JSTo. 235. §1055. Admission for purpose of the suit. These defendants have no personal knowledge of the fact, but, for the purpose of the suit, they admit that, etc. Or, And this defendant further answering saith he hath been informed and believes it to be true that, etc. Or, this de- fendant admits that, etc.^' No. 236. §1056. Reference to schedule. This respondent has in the schedule hereto annexed, and which he prays may be taken as part of this his answer, set forth, :o the best of his knowledge, information and belief, a description of, etc." 11 The above form is taken from is The foregoing form is taken Lube, Eq. PI., 494. from Lube, Eq. PL, 495. 12 The above form is taken from i* The foregoing form is taken Lube, Eq. PI., 494, 495. from Lube, Eq. PL, 497. rOEMS THE ANSWEE. 1295 JSTo. 237. §1057. Settled accounts. — Claim of. The account so stated and settled was in fact stated and settled by the said A. B. and this respondent, as it purports to be, on the day of the date thereof; and respondent claims the benefit thereof as a settled account.^'^ No. 238. §1058. Submission by trustee to act. The defendants submit in all things to act as this honorable court shall direct, and they claim to have their costs, charges and expenses, properly incurred, paid out of the estate of the said testator.^* No. 239. §1059. Where the defendant relies upon the statute of frauds. And this defendant says that by the statute of — ■ — , it is among other things provided, that no action shall be brought whereby to charge any person upon any contract of any lands, tenements and hereditaments, or any interest in or concern- ing them, unless the agreement upon which such action should be brought, or some memorandum or note in writing shall be signed, by the said party to be charged therewith, or some other person by him lawfully authorized (give the language of the statute) ; and this defendant insists upon the said stat- ute, and claims the same benefit as if he had pleaded the 15 The foregoing form is taken it See Puterbaugh's Ch. PI. and from Lube, Eq. PI., 497. Pr. (3d ed.), 180; ante, sec. 434. . i« The foregoing form is taken from Lube, Eq. PI., 497, 498. 1296 EQUITY PEOCBDUEE. No. 240. / §1060. Where the defendant relies upon the statute of limita- tions. The defendant also relies upon the statute of limitations as a defense to the plaintiff's demand, to the same extent and as fully as if the same were formally here pleaded to the plain- tiff's bill.^' THE CONCLUSION. No. 241. §1061. A formal g^eneral conclusion. And this defendant denies all and all manner of unlawful combination and confederacy wherewith he is by the said bill charged, without this, that there is any other matter, cause or thing in the said complainant's said bill of complaint con- tained, material or necessary for this defendant to make an- swer unto, and not herein and hereby well and sufficiently an- swered, confessed, traversed and avoided or denied, is true to the knowledge or belief of this defendant; all which matters and things this defendant is ready and willing to aver, main- tain and prove, as this honorable court shall direct, and hum- bly prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained.^" Or, And now, having fully answered the complainant's bill, and denying all unlawful combination and confederacy as therein charged (when combination is charged), this respondent prays 18 Tazwell vs. Whittle, 13 Gratt. facts are stated as are necessary 329, in which the court holds that to show that the statute is appli- anything in an answer which will cable. apprise the plaintiflF that the de- i^ The above form is taken from fendant relies on the statute of Lube, Eq. PI., 494. limitations is sufficient, if such FOKMS THE ANSWER. 1297 hence to be dismissed with his reasonable coats in this behalf expended, and he will ever pray, ete.^" No. 242. §1062. The usual conclusion. And now, having fully answered plaintiff's bill, this re- spondent prays hence to be dismissed with his reasonable costs in this behalf expended, and he will ever pray, etc.^^ PEECEDENTS OF ANSWEES IN SOME PAETICULAE INSTANCES AND CASES. No. 243. §1063. Of an infant defendant by his guardian ad litem. The separate answer of Anne Hart, an infant under the age of twenty-one years by B. T., her guardian ad litem, assigned to defend her in this suit, to a bill of complaint exhibited against her and others, in the Circuit Court for the County of , and State of , by James Hart. The respondent reserving to herself the benefit of all just exceptions to said bill, for answer thereto, or to so much thereof as she is advised that it is material she should answer, by her said guardian ad litem, answers and says: That she is an infant of tender years, and by reason of her infancy is incapable of understanding, or of taking care of \ her rights and interest. She, therefore, by her said guardian, commends herself and her rights and interests to the protec- tion of the court, and prays that no decree may be pronounced which will tend to her prejudice. And having fully answered, the said respondent prays to 20 The above form is taken from 21 Ante, sec. 407. Sands' Suit in Equity, 359, 360. 1298 EQUITY PEOCBDtTEE. be hence dismissed with her reasonable costs in this behalf expended, and she will ever pray, etc." B T , Guardian ad litem for Anne Hart. No. 244. §1064. Of an infant to a bill or petition to sell his estate, as well also as of the ^ardian ad litem himself. The answer of John H., guardian ad litem to the infant de- fendant, Robert P., and the answer of the said infant defend- ant, Robert P., by the said John II., his guardian ad litem, to the bill in equity exhibited against the said Robert P. and others in the Court of County, State of , by James S., guardian of the said Robert P. For answer to the said bill the said guardian ad litem an- swers and says that he does not know whether the interests of the infant defendant would be promoted by the sale of the property as prayed for in the said bill or not ; and the said in- fant defendant, by his said guardian ad litem,, answers and says that being an infant of tender years he knows nothing of the matters mentioned in the bill, and commits the protection of his interests to the court. And now having answered they pray, etc. John H., Guardian ad litem to Robert P., and Robert P., an infant, by the said John H., his guardian ad litem."^ (Yerify hy affidavit.) 22 The foregoing form is taken 23 The above form is taken from from 2 Bart. Ch. Pr. (2d ed.), 1300. Sands' Suit in Equity, 549. See Durrett vs. Davis, 24 Gratt. 302. FOBMS THE ANSWER. 1299 "JSIo. 245. §1065. A short and usual form for an answer. (After the usual title.) The respondent {or, these respondents) reserving to himself (or themselves) the benefit of all just exceptions to the said bill, for answer thereto, or to so much thereof as he is (or, they are) advised that it is material he (or, they) should an- swer, answers and says (or, answer and say) that . True it is, etc. (giving a distinct and categorical answer to the several averments of the bill.) But this respondent denies (here insert the denial of such allegations of the bill as are not true.) And this respondent denies (or, these respondents deny) all fraud, unlawful combination and confederacy ; and having fully answered the complainant's bill, prays (or, pray) to be hence dismissed with his (or their ) reasonable costs by him (or them) in this behalf expended, and he (or they) will ever pray, etc. D. D., Defendant. M. A. W., By Counsel." Solicitor for the Defendant. No. 246. §1066. To a bill for an injunction to stay proceedings at law on a judgment, drawn to illustrate the principle per- mitting all defenses in equity to be made by answer. (After the title and commencement proceed as folloivs) : This defendant admits that, at term of Court, he recovered a judgment against the complainant for the sum 24 The above form is taken from 2 Bart. Ch. Pr. (2d ed.), 1300. 1300 EQUITY PEOCEDUEE. of $ , being the amount due him, as the holder of certain promissory notes, m.entioned and described in the bill of com- plaint, as drawn by the said complainant, payable to one B., and by him indorsed to this defendant. And as the said judg- ment was recovered without any fraud on his part, etc., it re- mains in full force and unreversed; and as all the objections now pretended against it in said bill were inquirable into at law, and if shown to be true, might have been used as de- fenses in his aforesaid action at law, this defendant relies on his aforesaid judgment, and pleads the same in bar of all the relief which tlie complainant now seeks by his bill. And this defendant avers that he knows nothing whatever of the transaction between the complainant and the said B., and out of which the pretended equities of the complainant are supposed to arise, and can neither admit nor deny the charges in the bill in that behalf. He insists that all inquiry into these matters is precluded by the judgment aforesaid ; hut if it shall be considered by this court that they are still open for examination in this suit, he is advised to insist that the said B. is a necessary party to this suit to aid this defendant in the defense thereof. And this defendant avers that he acquired the aforesaid promissory notes, before they or any of them became payable hona fide for a full and valuable consideration, and without notice of any of the equities or defenses now pretended by the complainant against them ; he is therefore advised and insists that his right as the holder thereof cannot be affected by proof now adduced of any latent equities existing between the original parties to the said notes. And as to the matters of account which are pretended in said bill to be remaining unsettled between the complainant and ■ this defendant, in respect of which a large balance of money is pretended to be due from this defendant to the com- plainant, this defendant says that upon complainant's own showing they are matters for the cognizance of a court of common law, and he therefore insists that this court has no jurisdiction to examine into them, or to grant any relief to the complainant in respect thereof; and he more especially FORMS THE ANSWER. 1301 relies on and pleads the judgment aforesaid against the claim of the said complainant to have the balance to be found due on the taking an account of the aforesaid matters set off or dis- counted from the sum recovered by said judgment. And this defendant further says that if the complainant ever had any cause of suit or action against this defendant for or in respect of the aforesaid matters of account, or any of them, the same did accrue unto him upwards of years before the filing of the present bill, or suing out process thereon against this defendant, and upwards of years before this defendant became the holder of the aforesaid prom- issory notes ; and he pleads the act for limitations of actions and so forth against all the relief which the complainant seeks in respect thereof. And this defendant, insisting on his aforesaid defenses, and praying to have the same benefit thereof as if they were herein specially pleaded, for further answer admits, etc., etc. (Answer the several allegations in the hill; and if the bill charged fraud and combination^ the answer should conclude as follows) : And this defendant denies all and all manner of fraud and conspiracy with which he is charged by said bill, and prays that the injunction heretofore granted in this cause may be dissolved, and that he may be hence dismissed, with his reason- able costs in this cause sustained. And as in duty bound he will ever pray, etc."^ No. 247. §1067. In the nature of a cross-bill setting up a claim to af- firmative relief. (After the usual title and commencement.) That this defendant admits that he and the said plaintiff 25 The foregoing form is taken from Mitford & Tyler's PI. and Pr., 609. 1302 EQUITY PKOCBDUEE. were duly married on the day of , 18 , as al- leged in plaintiff's said bill. And this defendant, further answering says, that it is true that there was born unto the plaintiff and defendant the chil- dren named in the said bill, whose ages are as therein stated. This defendant, for further answer unto the said bill, says that he denies (Here set forth the matters denied.) And now this defendant, for further answer unto said.liill, setting up a claim to affirmative relief against the said plain- tiff, answering, says, that on or about the day of , 19 , the said plaintiff committed the crime of adultery with one E F , at or near (Here insert the place, if known) ; and as soon as this defendant learned that the plain- tiff had committed the said offense, he ceased to cohabit with her. Plaintiff therefore prays that the said A B may be made a defendant to this answer setting up a claim to affirma- tive relief ; that plaintiff may have a divorce from the bonds of matrimony from the said A B , upon the ground hereinbefore set forth ; and that said defendant niay be dis- missed with his costs as to the plaintiff's said bill ; and grant unto the defendant such other relief as the nature of his case as set forth in this, his answer, may require, and as in duty bound he will ever pray, etc. C B ; G F C , By Counsel. Solicitor for the Defendant. No: 248. §1068. Averring fraud in procuring contract sought to be en- forced. (After the usual title and commencement.) That the instrument set forth in the plaintiff's bill upon which this suit is founded was procured from the defendant by FOKMS THE AN^SWBE. 1303 the plaintiff by fraud and misrepresentation, in this, (Set forth the particular circumstances constituting the fraud.) The said defendant says that said representations made by the plaintiff were false, as he then well knew, but the de- fendant relying upon the same, executed and delivered the said writing to the plaintiff. The defendant further says that the inducements to entering into the said writing were the said fraudulent representations of the said plaintiff, and but for them this defendant would not have executed and delivered said writing to the plaintiff. This defendant therefore prays that said instrument may be declared void, and delivered up to be cancelled, and that defendant may be hence dismissed with his reasonable costs in this behalf incurred, and as in duty bound, he will ever pray, etc. C D^— , By Counsel.' — U— M , Solicitor for the Defendant. ISTo. 249. §1069. To a bill for divorce setting up condonation. (After the usual title and commencement.) That he, the defendant, admits the marriage alleged in said bill. That the defendant for further answer unto said bill says, that after the times mentioned in said bill, and before the commencement of this suit, the plaintiff being informed as to the matters therein alleged, freely condoned said alleged adul- tery, and forgave the defendant therefor, and freely cohabited with him, and that ever since such condonation the defendant 2« See 2 Thornton, Ind. Prac. Forms, 926. 1304 EQUITY PBOCEDUEE. has been a faithful husband to the plaintiff, and has constantly treated her with conjugal kindness. C D , By Counsel. S S- Solicitor for the Defendant. No. 250. §1070. To a bill for divorce setting up recrimination. (After the usual title and commencement.) That he, this defendant, admits that the plaintiff is a resi- dent of County, and has resided in the State of West Virginia for the period of one year immediately preceding the institution of her suit, and that plaintiff and defendant were married as alleged in said bill. Defendant further alleges that on or about the first day of , 18 — ■ — , the plaintiff (Here state a cause for divorce, and as in a hill brought for the purpose). Defendant further says that after such offense was com- mitted defendant separated from plaintiff, and since said time has not cohabited with plaintiff or forgiven her offense. (Conclude the answer in the usual manner.) C D , By Counsel. Solicitor for the Defendant. No. 251. §1071. To a bill for divorce setting up a claim to affirmative relief. (After the usual title and commencement.) The defendant says that he, the defendant, admits that FORMS THE ANSWEE. 1305 plaintiff is a resident of M County, and that she has r&- sided in the State of for the period of years imme- diately preceding the institution of her suit. The defendant, for further answer to said bill, says, that he admits that the plaintiff and defendant were married, as set forth in said bill. And now this defendant for further answer unto said bill, and by way of a claim for affirmative relief, says that the de- fendant avers that he is a resident of M County, and has resided in the State of ■ for the period of years immediately preceding the institution of this suit. Defendant further says that he and the said plaintiff were married, as set forth and alleged in the plaintiff's said bill. Defendant, further answering, says, that (Here allege cause for divorce as in a bill of complaint.) This defendant now prays that the said A B may be made a defendant to this answer setting up a claim to af- firmative relief, and that she be required to answer the same; that he may have a divorce from the said A B from (Here pray for the hind of divorce, depending upon the allega- tions of the answer claiming affirmative relief) ; that the plain- tiff's bill may be dismissed as to this defendant; and that de- fendant may have such other relief as the nature of his case, as set forth in his answer, wherein he claims affirmative relief, may require, and as to equity may seem meet, and as in duty bound he will ever pray, etc. C D -, By Counsel.' O J- .1-1. J Solicitor for the Defendant. 27 See Jones vs. Jones, 71 N. Y. 519. 1306 EQUITY PKOCEDUKE. No. 252. §1072. Of garnishee in attachment suit. (After ihe usual title and commencement.) That this defendant, at the time of the service of the plain- tiff's order of attachment upon him, he, this defendant, had not in his hands or possession any goods, effects or credits of the said defendant, E F- — ■ — , nor any property belong- ing to the said defendant, E F , in his possession or under His control. Defendant further says that since the said order of attach- ment was served upon this defendant, no goods, effects or credits belonging to the defendant, E F , has come into the hands, possession, or under the control of this defend- ant; that this defendant is not in any wise liable upon any matter whatsoever, either now or at the time said order of at- tachment was served upon him, to his said co-defendant, E F . (Or if, on the contrary, the said garnishee was in- debted when the said order of attachment was served upon him, or had in his possession property or effects of the defendant, or if any property or effects came into his hands belonging to the defendant, after the service of the said order of attach- ment, then the answer should state fully the nature of such property and the amount or value thereof.) This defendant now, having fully answered, prays to be hence dismissed with his reasonable costs in this behalf in- curred, and as in duty bound he will ever pray, etc. C D- By Counsel.' F- Solicitor for the Defendant. 28 See as to ilie duty of the gar- answer he should make thereto, nishee to defend the suit, and the ante, sees. 802-807. FOEMS THE AWSWEE. 1307 No. 253. §1073. An amended answer. (After the style of the cause, as No. 191 to the *.) The amended (or supplemental) answer of E.. D., to the bill filed against him and others in this cause. This defendant, in addition to (or in explanation of) (or in correction of) the answer heretofore filed by him in this cause, leave of the court having been obtained says that (here set out the additions, ex- planations, or corrections, stated or referred to in the order of the court allowing the amended or supplemental answer to be filed; and conclude as in an ordinary answer).'" No. 254. §1074. Amended answer after exceptions sustained to the origi- nal. (After the style of the cause, as in No. 191 to the *.) The further answer of C. D., defendant in this suit, to the original bill of complaint, and his answer to the amendments to such bill. * This defendant, saving and reserving to himself the same benefit of exception to the said original and amended bill as by his former answer to such original bill is saved and reserved, for answer thereto, answers and says : This defendant, in further answer to such original bill, as to the matters to the , third exception taken to his former answer, saith that: (Here set forth the matter introduced.) And this defendant, in further answer to such original bill, in the matters of the sixth exception taken to his former answer, saith, (Here insert the matter). And this defendant for answer to the amendments made to such original bill, saith that, (Here insert the matter). (Here append the usual conclusion to the answer.)'"^ 29 The above form is taken from so See 1 Ene. Forms, 880, 881. Gibs. Suit in Ch., sec. 438. 1308 EQUITY PEOCEDUEE. No. 255. §1075. Setting up partition by a parol agreement to a suit for partition. (After the usual caption and commencement.) That in the year 189^ the plaintiffs and defendant, being the owners in common of the lands in said complaint mentioned and described, and being all of full age and competent to contract, entered into contract whereby they agreed to choose each a disinterested person to make partition of said lands between them, and in pursuance of said contract the said J. D. chose r. F., the said L. D. chose JST. H. and this defendant chose W. W., who were all disinterested parties, to make said parti- tion ; that thereupon the aforesaid parties so chosen made parti- tion of said lands between the said J. D., L. D., and this de- fendant, and assigned and set off to the said J. D. the following portion of said lands, to-wit : (describing the -portion set off to J. D.)j and assigned and set off to L. D. the following portion of said land, to-wit: (describing the portion set off to L. D.), and assigned axid set off to this defendant the balance of said land, and the aforesaid plaintiffs and this defendant procured the county surveyor to survey and establish the lines of the land so set off to each ; that in pursuance of the said contract and parti- tion so made under it as aforesaid, each of the above named parties, plaintiffs and defendant, entered into and took posses- sion of the land respectively set off and assigned to them, and procured the same to be transferred to them respectively, upon the Land Books of the County of — — , and duly entered for taxation, and have held possession solely and uninterruptedly of the said real estate so assigned to them from that day to the present time. Defendant has made lasting and valuable improvements on the land as assigned to him and has expended in ditching said land the sum of dollars, and has built fences upon said land to the value of dollars, and has otherwise improved the same and placed it in a high state of cultivation. FOEMS THE ANSWEK. 1309 Wherefore this defendant having fully answered said bill prays to be hence dismissed with his reasonable costs and as in duty bound he will ever pray, etc. CD., J. M., By Counsel." Solicitor for the Defendant. 31 The form above given appears substantially in Moore va. Kerr, 46 Ind. 468. 1810 EQUITY PBOCEDUEE. CHAPTER XLYI. THE REPLICATION. Sec. 1076. The general replication. Sec. 1077. The plaintiff's special reply in writing to the answer of de- fendant setting up claim to affirmative relief. Sec. 1078. The special reply of a defendant to the answer of his co-de- fendant, wherein affirmative relief is sought hy the latter against the former. No. 256. §1076. The general replication. State of , County of • In the Circuit Court of said County. A B , vs. . In Chancery. C D , ° The replication of A. B., complainant to the answer of C- D.; defendant. This repliant, saving and reserving unto himself all and all manner of advantage of exception to the manifold insufficiencies of the said answer, for replication thereunto saith, that he will aver and prove his said bill to be true, certain and sufficient in the law to be answered unto, and that the said answer of the said defendant is uncertain, untrue, and insufficient to be replied to by this repliant. Without this, that any other matter or thing whatsoever in the said answer contained, material or effectual in the law, to be replied unto, confessed and avoided, traversed or denied, is true. All which matters and things this repliant is and will be ready to aver and prove, as this honorable court FORMS THE REPLICATION. 1311 shall direct, and humbly prays as in and by his said bill he hath already prayed.* A. B., J. M., By Counsel.^ Solioitor for the Plaintiff. No. 257. §1077. The plaintiff's special reply in writing to the answer of defendant setting up claim to affirmative relief. (As in No. 256 to the * and then continue as follows:) And now this plaintiff by way of special reply to the answer of the defendant filed in this cause, wherein the said defendant prays for affirmative relief against this plaintiff, says that (insert here a denial of such parts of said answer as are not ad- mitted to he true, and stating any facts constituting a defense to the defendant's claim for affirmative relief.) And now having fully specially replied to the said defendant's claim for affirma- tive relief, as made in said answer, the plaintiff prays hence to be dismissed as to so much of said answer as sets up any claim for affirmative relief against this plaintiff. A. B., J. H. M., By Counsel.' Solicitor for the Plaintiff. 1 The foregoing form is taken constructed from the provisions of from Sands' Suit in Equity, 391. the statute in that State, and as to 2 The above form of a special the eases wherein such a reply is reply in writing is only intended required, see cmte, see. 453. for use in West Virginia, and ia 1312 EQUITY PKOCEDUBE. JSTo. 258. §1078. The special reply of a defendant to the answer of his co- defendant, wherein affirmative relief is sought by the latter against the former. (After giving the caption as indicated in No. 256 to the continue as follows:) And the defendant, C. D., by way of special reply to the answer of his co-defendant, E. F., filed in this cause, wherein the said defendant E. F. prays for afiBrmative relief against this defendant, says that (insert here a denial of such parts of said answer as are not admitted to he true and stating any facts con- sidered a defense to the defendant's claim for affirmative relief). And now, this defendant having fully specially replied to the claim of his co-defendant, E. E., for affirmative relief as made in his said answer, this defendant, C C, prays to be hence dis- missed as to so much of said answer as sets up any claim for afiirmative relief against this defendant, C. D. C. D., J. C. W., By Counsel.' Solicitor for the Defendant. • See note to No. 257. FOEMS AFFIDAVITS. 1313 CHAPTER XLVII. AFFIDAVITS. Stc. 1070. To any pleading in West Virginia made by a party suing in his own right. Sec. 1080. To any pleading by an administrator or other fiduciary in West Virginia. To a bill of, or answer to, an injunction in West Virginia, when verified by a person other than the plaintiflF. To a bill in chancery in Virginia. To a bill for an injunction in Virginia. To a bill by a fiduciary in Virginia. To an answer in Virginia. To a, bill of interpleader. For an attachment in West Virginia. To a bill on a lost instrument. To a bill of review on discovery of new matter. For an attachment in Virginia for specific personal property. For an attachment in a suit in Virginia to recover a debt or damages for the breach of a contract. For a continuance. Of non-residence of witness, that his deposition may be taken. Sec. . 1093o. Of non-residence of defendant foB the purpose of an order of publication. Sec. 1094. To be taken and subscribed by commissioners appointed to make partition. Sec. 1095. By poor person to relieve from giving security for costs. Sec. 1096. Of default to file an answer with a view to compel the filing thereof. Sec. 1097. To the service of process or notice by a private person. No. 259. §1079. To any pleading in West Virginia made by a party suing in his own right. State of West Virginia, County, to-wit: A B ; the plaintiff (or defendant, as the case may be) named in the foregoing bill (or answer, replication, or plea, See. 1081. Sec. 1082. Sec. 1083. See. 1084. Sec. 1085. Sec. 1086. See. 1087. Sec. 1088. Sec. 1089. Sec. 1090. Sec. 1091. Sec. 1092. Sec. 1093. 1314 EQUITY PROCEDUEE. as the case may be), being duly sworn,* says that the facts and allegations therein contained are true, except so far as they are therein stated to be on information, and that so far as they are therein stated to be upon information, he believes them to be true. A B , Plaintiff or Defendant. "Taken, sworn to and subscribed before me this — — day of C D , Clerk (or other officer swearing him.)"^ No. 260. §1080. To any pleading by an administrator or other fiduciary in West Virginia. (After the usual caption and identification to the * as indi- cated in No. 259, proceed as follows:) says, that he believes the facts and allegations therein con- tained to be true. A B , Administrator of C D., deceased (or in whatever charac- ter the fiduciary may be acting). (Append the usual jurat, as in No. 259, from the °.) No. 261. §1081. To a bill of, or answer to, an injunction in West Virginia, when verified by a person other than the plaintiff. State of West Virginia, County of , to-wit: C. D., being duly sworn says, that he is the agent (or at- torney, etc., as the case may be) of the plaintiff named in the iThe foregoing affidavit is in the must be appended to the bill or form prescribed by statute in West other pleading to be verified. Virginia, Code Ch. 125, see. 42, and FORMS AFFIDAVITS. 1315 foregoing bill (or of the defendant named in tlie foregoing an- swer), and that he knows the contents thereof; that the facts and allegations therein contained are true, except such as are therein stated upon information and belief, and that as to such allegations he believes them to be true. C D , Agent (or attorney, as the case may be.)^ (Append the jurat, as in No. 259, from the °.) No. 262. §1082. To a bill in chancery in Virginia. State of Virginia, County of I, , a justice of the peace for the county and State aforesaid, hereby certify that , personally ap- peared before me, in my county aforesaid, and made oath* that the allegations contained in the foregoing bill, which he makes of his own knowledge are true, and that all other matters there- in stated he believes to be true. •j-Given under my hand this day of , 19 . , J. P.^ No. 263. §1083. To a bill for an injunction in Virginia. (As in No. 262 to the * and then as follows:) that the allegations contained in the foregoing bill are made upon his ovsm knowledge and that such allegations are true. (Append the jurat, as in No. 262, from the f.) 2 The foregoing form is the one 3 The foregoing form is taken prescribed by statute in West Vir- from 2 Bart. Ch. Pr. (2nd Ed.) ginia, Code Ch. 125, see. 42. 1299. See ante §412. 1316 EQUITY PKOCEDUEE. N"o. 264. §1084. To a bill by a fiduciary in Virginia. State of , County of This day personally appeared before me, the undersigned, a Justice of the Peace for the county aforesaid, the above named A. B., guardian of C. D., plaintiff in the foregoing bill, and made oath that he believes the statements therein contained to be true. Given under my hand this • day of , 19 . , J. P.* No. 265. § 1085. To an answer in Virginia. State of "Virginia, County of This day personally appeared before me, H. P., a Justice of the Peace (notary public or commissioner in chancery for the Circuit Court of the of , Ya.), for the county (or corporation) and State aforesaid, D. D. (or D. D., E. F., etc., including all the respondents), whose answer is above written, and made oath that the statements contained in the said answer, so far as made of his (or their) own knowledge are true ; and so far as made from knowledge, or information derived from others, they are believed to be true. Given under my hand this • — — day of , 19 . , J. P.'' ■* The foregoing form is taken 6 The above form is taken from from 2 Bart. Ch. Pr. (2nd Ed.) 2 Bart. Ch. Pr. (2nd Ed.) 1301. 1272. FORMS AFriDAVITS. 1317 No. 266. §1086. To a bill of interpleader. (After the usual caption as indicated in No. 259 or 262.) Proceed as follows after the * in No. 259. says that he hath not exhibited his bill at the request of the said defendants or any or either of them, and that he is not indemnified by the defendants or either of them, and saith that he has exhibited his said bill for no other intent than to avoid being sued or molested by the said defendants, who are pro- ceeding or threaten to proceed at law against him, for the re- covery of (Here name the things sought to he recovered) of the said — — • in the said bill mentioned. A— B , By Counsel.' U G , Solicitor for the Plaintiff. (Append the usual jurat.) No. 267. §1087. For an attachment in West Virginia. State of West Virginia, ) „ County of . ) J J) (or S S ) being first duly swora ac- cording to law, upon his oath says (that he is the agent or attor- ney of J J) ) ; that he (or the said J D ) has instituted (or is about to institiite) a suit in equity against Ji it for the recovery of a claim (or debt) arising out of contract (or to recover damages for a wrong) in the Circuit Court of the County of , and State of West Virginia ; that 6 The foregoing form appears sub- stantially in 4 Desty's Fed. Proe. 495, and from which it is taken. 1318 EQUITY PEOCBDUEE. the nature of his {or the said J D 's) claim is (Here set out the nature of the claim); that affiant believes that he (or the said J D ) is justly entitled to recover in said suit, at the least, the amount of • — ■ — • dollars ; and affiant be- lieves that (Here set out the existence of the ground or grounds for the attachment). Affiant further states that the following are the material facts relied upon by him to show the existence of the ground (or grounds, as the case may be) upon which this application for an attachment is based : (Here set out specifically the facts relied on to show the existence of the ground or grounds for an attachment) . (Signed) J D .' (Append the jurat as in No. 259.) No. 268. §1088. To a bill on a lost instrument. (After the u^ual caption and commencement.) That on the day of , 19 , the defendant, C D , made and delivered to the plaintiff, A B , his promissory note, payable to said A B , after date, for the sum of dollars ; as more fully set forth and alleged in the foreging bill ; that the said A B is now the owner and holder of said note ; that the same has not been paid or otherwise discharged; but that the said note, on or about the day of , 19 , was lost or destroyed, as set forth in the foregoing bill. (Signed) A B .« (Append the usual jurat.) T Based upon the requirements of a court of law upon the ground that the statute aa shown in this treat- it is lost, an aiEdavit of the loss of ise; ante §§764, 765. the instrument is required. The 8 When a bill is filed to obtain requisition of the affidavit is a the benefit of an instrument prop- caution required by the ohancery erly belonging to the jurisdiction of court in permitting a transfer of FORMS AFFIDAVITS. 1319 No. 269. §1089. To a bill of review on discovery of new matter. State of County o,f • ^ A B , the complainant in the foregoing bill of com- plaint, on oath says that he has heard the same read and un- derstands the contents thereof ; that the matters set forth there- in as new matters are true in substance and in fact; that they were first discovered by this affiant since the rendition of the decree in the foregoing bill mentioned, to-wit, about the time they are therein stated; and that the same could not possibly be had, known or used, at the time when said cause was heard or the decree rendered. A-^ B , Plaintiff.' (Append the icsual jurat.) No. 270. §1090. For an attachment in Virginia for specific personal prop- erty. inia, ) To-wit. State of Virginii County of A- This day A. B. (or E. 'F.y being first duly sworn accord- ing to law, made oath before me, C. C, Clerk of the jurisdiction from the court of com- pended : " Sworn to in open court mon law to a court of equity. by the plaintiff." Held: Hooe vs. Harrison, 11 Ala. 499; "That as the plaintiff swore to O'Bannon vs. Myers, 36 Ala. 551; the bill in open court, and as the Pennington vs. Governor, 1 Blackf. bill specifically alleges the loss of (Ind. 78) ; Grant vs. fleid, 1 Jones the receipt, the oath, thus taken L. (46 N. C.) 512; Lyttle vs. Cozad, or made, is sufficient to answer the 21 W. Va. 183. And an affidavit of requirement of the law as to a lost loss is necessary in an action on a. instrument." lost deed, where relief as well as 9 The foregoing form is taken from discovery is sought. Livingston vs. Puterbaugh's Ch. PI. & Pr. (3rd ed.) Livingston, 4 Johns. Ch. (N. Y.) 320, and is the one now generally 294. used in a court of equity for the In Hickman vs. Painter, 11 W. verification of a bill of review for Va. 386, which was a suit on a lost newly-discovered evidence. See an- instrument, to the bill in that case te, see. 215. the jurat of the clerk was thus ap- loAn affidavit under the Code 1320 EQUITY PEOCEDUEE. Court of said county (or corporation) of A , and says (that he is the agent or attorney of A. B.) that he (or the said A. B.) is (or is to be) the plaintiff in a suit in equity* which has been (or is about to be) instituted in the Circuit (or cor- poration) court of the county (or corporation) of A , against CD.; that the nature of the personal property to be recovered is (hei-e state the nature of the property), and that according to affiant's belief^^ the value of such property is the sum of dollars/^ and that the probable amount of dam- ages plaintiff will recover for the detention thereof is the sum of ^^ dollars; that plaintiff's said claim is believed to be just/* and that to the best of affiant's belief (here set out one or more of the grounds of attachment )^^ Given under my hand, this day of , in the year of our Lord, 19 . C. C, Clerk. (Va.) 1873, c. 148, § 2, where an attachment is issued in a pending suit, need not describe the affiant as the plaintiff, or as the plaintiff's agent or attorney. Benn vs. Hatch- er, 81 Va. 25. Under sec. .14, c. 123, 1 Eev. Code Va., it was held that one member of a mercantile house, to which a debt had been contracted but had not fallen due, was competent to make the complaint on oath. Kyle vs. Connelly, 3 Leigh. (Va.) 719. 11 Every averment in an affidavit under the Code of 1873, c. 148, sec. 1, should have been stated as a fact absolutely upon affiant's own information, and not upon belief, or information and belief. For this reason an affidavit in these words, " Personally appeared before me, J. B. Burgess, Clerk of the Cir- cuit Court of Frederick County, Vir- ginia, A. E. Pendleton, attorney-in- fact for S. C. Clowser, who made oath th.it J. W. C. Hall is, as he believes, justly indebted to the said S. C. Clowser in the sum of five thousand dollars ; that there is pres- ent cause for action therefor; that said J. W. C. Hall is not a. resident of this State, and that affiant be- lieves he has estate within said County of Frederick, Virginia," was held insufficient. Clowser vs. Hall, 80 Va. 864. Under the present statute of Vir- ginia the affiant's belief as to the value of the property and the prob- able amount of damages that the plaintiff ought to recover, etc., and as to the existence of the grounds of the attachment, is all that is required. Code (Va.) 1887, sec. 2959. 12 See ante, sec. 764. 13 Ante, sec. 764. 1* For jurisdiction of Circuit Courts as depending upon amount in controversy, see Va. Code (1887), sec. 3058. For the jurisdiction of corpora- tion courts as depending upon amount in controversy, see Va. Code 1887, sec. 3055. 10 The grounds for an attach- ment and the circumstances under which it may issue are enumerated BOBMS AFFIDAVITS. 1321 - No. 271. §1091. For an attachment in a suit in Virginia to recover a debt or damages for the breach of a contract. (As in No. 270 down to the *.) for the recovery of a debt (or damages for a breach of con- tract,) which has been instituted, or is about to be instituted, in the Circuit (or corporation) Court of the county (or cor- poration) of A ; that the amount of said plaintiff's claim in said suit is the sum of dollars, together with interest from the • day of , 19 , until paid, which said sum and amount, at the least, the affiant believes the plaintiff is entitled to, and ought to recover in said suit ; that said plaintiff's claim is believed to be just, and that to the best of affiant's belief (here set out one or more of the grounds for at- tachment).^" (Append the usual jurat.) No. 272. §1092. For a continuance. County of . ) ^^_^.^_ State of , ) A B vs. [ In Chancery. C D . J Pending in the Circuit Court of the County and State aforesaid. Before the undersigned authority this day personally ap- peared A ' B , who, being by me iirst duly sworn says,* in Va. Laws of 1891, 1892, p. 520, the requirements of the statute of amending Va. Code (1887), sec. Virginia, in such ease made and nngg provided. See anie, sec. 764. J« This form is constructed from 1322 EQUITY PEOCEDUEE. that he is the plaintiff in the above entitled cause ; that he has taken his testimony in support of his said bill, and completed the taking thereof on the day of , 19 ; that thereupon the defendant waited for some time before giving notice to take any evidence ; that the said defendant did not complete the taking of his evidence in the said cause until the day of , 19 ; that affiant has the following witnesses : (Here name such witnesses) , whose testimony is important and material to this plaintiff in said cause; that he cannot prove the same facts by any other witness or wit- nesses that he can prove by the said witnesses above named ; that he cannot safely submit his cause for hearing and deci- sion in the absence of the evidence of the said witnesses ; that the evidence of the said defendant taken and completed as above stated, has made the testimony of said witnesses im- jMjrtant and material to this plaintiff by way of rebuttal and contradiction to the testimony of certain witnesses examined by the said defendant; that vipon the completion of the taking of the evidence of the said defendant there was not sufficient time until the convening of this court to enable the said plaintiff to take his said rebuttal and contradictory evidence. The plaintiff therefore makes this affidavit for a continuance of said cause to enable him to take the testimony of the wit- nesses above named ; that the above witnesses and each of them reside in the County of and State of , and that af- fiant can procure their evidence between now and the next term of this court, if his said case be continued, thereby giving him an opportunity so to do. Affiant further says that this application is not made for delay but for the furtherance of justice. A B — — , Plaintiff. (Append the usual jurat.) FOKMS AFFIDAVITS. No. 273. 1323 §1093. Of non-residence of witness, that his deposition may be taken. County of State of A- C- B- vs. To-wit. In Chancery. Pending in the Circuit Court of the County and State afore- said. A B , being by me first duly sworn says, that he i3 the plaintiff in the above styled action;* that he desires to take the deposition of E F — ■ — , who is a non-resident of the State aforesaid, now residing at , in the County of , and State of . (Signed) A B ." (Append the usvxil jurat.) No. 273a. § 1093a. Of non-residence of defendant for the purpose of an or- der of publication. (As in No. 272 or 273 to the * and then continue as follows:) that the said defendant, C D is a non-resident of the State of West Virginia. A B .'^ (Append the usual jurat.) 17 The depositions of non-resident witnesses, taken without the affida- vit required by sec. 34 of chapter 130 of the Code, can be read upon the trial, if it appears from the depositions themselves that the wit- nesses were non-residents of the State at the time their depositions were taken. Hoopes vs. Devaughn, 43 W. Va. 447, 27 S. E. Rep. 251. IS See ante, sec. 19. In Fayette Land Co. vs. Louis vllle & N. E. Co., 93 Va. 274, 24 S. E. Eep. 1016, the Supreme Court of Appeals of Virginia decides that, under the provisions of the Code of 1324 EQUITY PEOCEDUEE. No. 274. §1094. To be taken and subscribed by commissioners appointed to make partition. State of , ) „ County of — ■ — . ) ■B— I vs. j- In Chancery. C-^ D . J Pending in the Circuit Court of the County and State afore- said. We, the undersigned commissioners, duly appointed to make partition in the above entitled cause, of the real estate in the bill and proceedings in said cause mentioned and described, do solemnly swear that we will fairly and impartially make partition of the said premises, according to the rights and in- terests of the parties, as declared by the decree apppointing us as such commissioners, if the same can be done consistently with the interests of the parties ; and we will true report there- of make to the court. But if the said premises are not susceptible of partition, we will likewise make true report thereof. (Append the usual jurat.) that State, sec. 3230, where the bill of the fact that said parties are un- states that there are or may be known, an order of publication may persons interested in the subject to be entered against such unknown he disposed of whose names are parties, an affidavit by the local at- unknown. and makes such persons torney of a corporation eomplain- parties by the general description ant, reciting that the parties are of " parties unknown," on affidavit unknown to affiant, is sufficient. FORMS AFFIDAVITS. No. 275. 1325 §1095. By poor person to relieve from giving security for costs. County of State of — B- vs. To-wit. In Chancery. Pending in the Circuit Court of the County and State aforesaid. Before the undersigned authority this day personally came A B , who, after being duly sworn, says that he is the plaintiff in the above styled action, and a non-resident of the State of ; that his non-residence has been suggested of record and security for costs demanded. This affiant further says, that he is a poor person and has no property, real or personal, with which to pay counsel or fees of the officers of the court, and is wholly unable to give any security for the payment of costs in the above entitled cause. This affiant therefore asks that he may be relieved from giv- ing security for costs, and that he may be permitted to prose- cute his suit in the said court as a poor person. A B , Plaintiff. (Append the lisiml jurat.) ISTo. 276. §1096. Of default to file an answer with a view to compel the filing thereof. State of , County of . ss. A- C- B- vs. D- In Chancery. Pending in the Circuit Court of the State and County aforesaid. 1326 EQUITY PEOCEDtTEE. J. M., solicitor for the plaintiff in the above styled suit, being duly sworn, says that the defendant therein has failed to file any answer in this cause to the interrogatories propounded to him in the plaintiff's bill in this cause filed ; that a full and di- rect answer of the said interrogatories and each one thereof is necessary to enable the plaintiff to sustain his bill. This affiant therefore asks that a rule be awarded returnable in a reasonable time and served on the defendant, requiring him to show cause, if any he can, why he should not answer the plaintiff's bill, and said interrogatories therein propounded. J. M. [(Append the lisital jurat.) IvTo. 277. §1097. To the service of process or notice by a private person. State of , County of . F. G., being duly sworn says that he executed the within summons (or notice) upon the within named C. C, by de- livering to him a copy thereof on the day of ■ 19 . F. G. (Append the xisual jurat.) FOKMS NOTICES. 1327 CHAPTER XLVIII. NOTICES. Sec. 1098. To hear petition of guardian to sell property of his minor ward. Sec. 1099. To hear petition to release inchoate right of dower of insane wife. Sec. 1100. To take depositions. See. 1101. Of application for an injunction. Sec. 1102. Of application for the appointment of a receiver. — General form. See. 1103. Of application for the appointment of a receiver in a suit to foreclo.se a mortgage. Sec. 1104. Of the application for the appointment of a receiver in a part- nership suit. Sec. 1105. By trustee for sale of property under a deed of trust in West Virginia. Sec. 1106. Of sale of infant's lands in suit by guardian. See. 1107. Of sale of property by trustee in a deed of trust in Virginia. Sec. 1108. For the appointment of a new trustee in a deed of trust. Sec. 1109. In a proceeding to transfer property out of the State belonging to persons under disability. Sec. 1110. Notice to creditors in a suit to subject the real estate of a decedent to the payment of his debts. To lien holders in a suit to enforce judgment liens. Of sale of real estate to be made by a special commissioner. Of motion to dissolve an injunction. Of application for a rehearing of a decree entered by default. That a commissioner's report has been completed. To correct decree wherein there is clerical error. Of taking an account by a commissioner iii chancery. No. 278. §1098. To hear petition of guardian to sell property of his minor ward. To C D , and all other persons whom it may Concern : Notice is hereby given that the undersigned, A B , guardian of C D , a minor, will make application to See. nil. Sec. 1112. Sec. 1113. Sec. 1114. Sec. 1115. Sec. 1115a. Sec. 1116. 1328 EQUITY PKOCEDUEB. the Circuit Court of County, in the State of West Vir- ginia, at a regular term, thereof to be held at the Court House in the town of in the said county, on the day of , 19 , for an order of said court, authorizing him as guard- ian, to sell the following real estate belonging to the said minor, situate in the District of , and County and State aforesaid: (Here briefly describe the property). A • B , Guardian of C D , By Counsel. G E— H- Solicitor for A B- No. 279. §1099. To hear petition to release inchoate right oi dower of insane wife. To" , wife of C. D. You are hereby notified that the undersigned, your husband, will make application on the — ■ — day of , 19 , to the Circuit Court of the County of and State of , to in- stitute proceedings to have your inchoate right of dower in and to the following described premises released : (Here describe the land). You are further hereby notified that I have contracted for the sale of said land to , for the sum of $ , and that my interests will be promoted by such sale. J. D., By Counsel.^ 1 This form is intended for use amended in 1895-96, Pollard, Supp. under the Statutes of the Virginias, 270, and is based upon the case of Code (W. Va.) Ch. 83, sec. 10 and Hess vs. Gale, 93 Va. 467, 25 S. E. Code (Va.) 1887, sec. 2625, as Rep. 533. FOEMS NOTICES. 1329 No. 280. §1100. To take depositions. To K. M. and N. O. : Take notice that on the day of , 19 , at the office of J. O. S., in the town of R , in the County of M. and State of , between the hours of 9 o'clock A. M. and 6 o'clock P. M. of that day, I shall proceed to take the depositions of X. X. and L. L. and others, to be read in evi- dence in my behalf in a certain suit in equity pending in the Court of County and State of , in which I am plaintiff and you are defendants; and, if from any caiise the taking of the said depositions be not commenced on that day, or, if commenced, if they be not completed on that day, the taking of the said depositions will be adjourned from day to day, at the same place and between the same hours, until they are completed. A B — — , By Counsel.^ J L , Solicitor. No. 281. §1101. Of application for an injunction. ToC— D : You are hereby notified that the undersigned will, on the day of , 19 , at o'clock A. M., at , in the County of , and State of , make application to the Judge of the Circuit Court of said county for an injunction "and restraining order, to enjoin you, your agents, servants and employes, from (state what acts are sought to be enjoined) , 2 The foregoing form will be {2nd ed.) pp. 488, 489; 2 Bart. Ch. found in Sands' Suit in Equity, Pr. (2nd ed.) 1319. 1330 EQUITY PBOCEDUEE. until the further order of the court; when and where you can appear if you see proper. A B , By Counsel. J H S , Solicitor. No. 282. §1102. Of application for the appointment of a receiver. — Gen- eral form. To E W , A— A S , U S , S A M and A S : You are hereby notified that on the day of , 19 , the plaintiffs in the chancery cause of B W and others, now pending in the Circuit Court of H County, State of , will make a motion in the Circuit Court of said County of H , in said chancery cause, to have a special receiver appointed therein as provided in Section 28 of chapter 133 of the Code, to take possession and control of the one hundred and twenty-five acres of land mentioned and described in the bill filed in said cause, and wherein they are plaintiffs and you are defendants. B W , and others. Plaintiffs, J W , By Counsel.' Solicitor. Wo. 283. §1103. Of application for the appointment of a receiver in a suit to foreclose a mortgage. State of , County of To-wit. vs. In Chancery. D W- Pending in the Circuit Court of said County. a The above form is taken from Wilson vs. Maddox, 46 W. Va. 641, 33 S. E. Rep. 775. FOEMS NOTICES. 1331 The defendant in the above entitled cause will take notice that an application will be made on the day of the March term, 19 — , of the Circuit Court of said county, at o'clock A. M., or as soon thereafter as counsel may be heard, for the appointment of a receiver, to take possession of the mortgaged premises mentioned and described in the above cause, rent the same, and receive the rents, issues and profits thereof, and hold the same subject to the further order or decree of the said court in this cause, with all the power and authority, and subject to all the responsibilities of receivers. Yours respectfully, D F , By Counsel. Dated, day of , 19 — . J-^ U V , Solicitor.* No. 284. §1104. Of the applicaticn for the appointment of a receiver in a partnership suit. (After giving title of the cause and court wherein pending, as in No. 283, -proceed as follows:) Please take notice that a motion will be made by the under- signed before the Judge of the said court, in vacation, at his chambers, in the town of , in the County of , and State of , on Monday, the day of , 19 — , or as soon thereafter as counsel can be heard, for an order for the appointment of a receiver of all the personal partnership prop- erty of the firm of E,. R. & Company, with the usual powers of and directions of receivers. Dated this day of — — , 19- — . A. B., J. C, By Counsel. Solicitor. ° i See 15 Ene. Forms, pp. 648, 649. ^ See Booth vs. Smith, 79 Hun. (N. Y.) 384. 1332 EQUITY PKOCEDUEE. No. 285. §1105. By trustee for sale of property under a deed of trust in West Virginia. NOTICE OF trustee's SALE. By virtue of the authority vested in me by a deed of trust bearing date on the day of , 19 — , executed by A. B. to the undersigned E. F., as trustee, to secure to C. D. the pay- ment of a certain note therein described, and recorded in the Clerk's office of the County Court of ■ County, and State of West Virginia, in trust deed book No. , at page — ■ — , the undersigned will offer for sale at public auction to the highest bidder at (Here insert the place of sale) on the day of , 19 — , at o'clock A. M. (or, P M., as the case may he) , the following described real estate : (Here de- scribe the property, giving the quantity.) Said sale will be made upon the following terms : (Here describe the terms of sale.) E. E., Trustee." No. 286. §1106. Of sale of infant's lands in suit by guardian. commissionee's notice of sale. In pursuance of a decree in P.'s guardian vs. P. et als. made by the Circuit Court of Hanover County on the day of , 19 , I shall, as commissioner appointed thereby, proceed to sell at public auction on the premises ( or, at the front door of the Court House of H. County) on the day of , 19 , the tract of land containing 643 acres of which Mrs. P. lately died seized. The land lies on the road, The foregoing form is construct- ed from the provisions of the Code of West Virginia, Ch. 72, sec. 6. roKMS — isroTiCES. 1333 distant about miles from the Court House. It is very valuable. It vsrill be sold in one or more parcels to suit pur- chasers. Terms of sale: One-third cash, balance at one, two and three years from day of sale, with interest from day of sale, for credit installments, bonds to be given by the purchaser or purchasers, and the title retained until full purchase money is paid and conveyance directed by the court. William W., Comm'r.' No. 287. §1107. Of sale of property by trustee in a deed of trust in Vir- ginia. teustee's sale notice. By virtue of a deed of trust executed by A B to C — — D as trustee, bearing date on the day of , 1 9 — , recorded in the Clerk's office of the County Court of County, Virginia, in trust deed book , page , given to secure the payment of a certain note in said trust deed de- scribed, payable to one E F , and the undersigned trustee, being required so to do by the said E F , the creditor secured by said trust deed, and gaid note now being due an|d payable, and default having been made in the payment thereof, will offer for sale at public auction, for cash, to the highest bidder, at the front door of the Court House of — County, in said State, on the day of , 19 , at o'clock of that day, the following described property con- veyed by said trust deed: (Here describe property.) C. D., Trustee.' ^ The above form is taken from s The above form is constructed Sands' Suit in Equity, (2nd ed.) from the Statute of Virginia, Code 555. (1887), see. 2442. 1334: EQUITY PEOCEDUKB. 'No. 288. §1108. For the appointment of a new trustee in a deed of trust. To A B : You are hereby notified that on the day of the No- vember Term, 19 — ; of the Circuit Court of County, West Virginia, at o'clock, or as soon thereafter as coun- sel may be heard in reference to the matter, the undersigned "will move the said court to appoint , of the county and State aforesaid, to act as trustee in the place and stead of C D , the person named as trustee in a certain deed of trust, bearing date on the day of , 18 — , and duly of record in the said county of , and State aforesaid, in trust deed' book No. — — , page , the said C D having departed this life (or whatever ground may exist for the appointment of a new trustee); vs^hich deed of trust was given to secure the payment of a certain note therein described, executed to the undersigned by you, and v^hich note is now due and unpaid. E F , By Counsel. Dated, day of , 19 — . J F C , Solicitor.' No. 289. §1109. In a proceeding to transfer property out of the State belonging to persons under disability. To whom it may concern : Notice is hereby given that I, A B , guardian of C D , residents of the County of , and State of ogee Code (Va.) 1887, sees. 3419,' .■5420, and Code (W. Va.) Ch. 132, see. 5. FOEMS NOTICES. 1335 Ohio, where the said A B was duly appointed as guardian of said C D , will make application to the Circuit Court of County, West Virginia, on the day of , 19 — , for the entry of an order authorizing nie as guardian aforesaid, to transfer from the said State of West Virginia to the said State of Ohio, the proceeds of the sale of certain real estate formerly belonging to the said C D , and located in the said County of , and State of West Virginia, now invested in certain securities under the order of said court, and now held by E — — F , the guard- ian of said C D appointed and qualified as such in said county of , and State of West Virginia. A B , guardian of C D , for the County of and State of Ohio, By Counsel." E E B , Solicitor. ISTo. 290. §1110. Notice to creditors in a suit to subject the real estate of a decedent to the payment of Ms debts. NOTICE TO CEEDITOKS. To the creditors of A B , deceased : In pursuance of a decree of the Court of the county of , made in a cause therein pending, to subject the real estate of the said A B , to the payment of his debts, you are required to present your claims against the estate of the said A B , for adjudication to C D , com- missioner, at his office in the said county, on or before the day of . Witness E F , Clerk of the said court, this day of . E r , Clerk." 10 Constructed from Code (W. scribed by the Statute of West Va.) Ch. 84, sec. 5. Virginia, Code (W. Va.) Ch. 86, 11 The foregoing is the form pre- sec. 8. 1336 EQUITY PEOCEDTJRE. No. 291. §1111. To lien holders in a suit to enforce judgment liens. NOTICE TO LIENHOLDEES. To all persons holding liens by judgment or otherwise, on the real estate, or any part thereof, of A — — B : In pursuance of a decree of the Circuit Court of County, made in a cause therein pending, to subject the real estate of the said A B to the satisfaction of the liens thereon, you are hereby required to present all claims held by you and each of you against the said A B , which are liens on his real estate, or any part of it, for adjudication to me, at my office in the county (or city, town or village, as the case may be) of , on or before the day of . Given under my hand this day of . C D -, Commissioner 12 No. 292. §1112. Of sale, of real estate to be made by a special commis- sioner. WOTICE OF JUDICIAI. SALE. Pursuant to a decree of the Circiiit Court of County, West Virginia, made and entered on the day of • , 19 — , in the chancery cause of J. H. W. vs. B. C. W. and others, I will on Saturday, the day of , 19 — , at the front door of the Court House of County, West Vir- ginia, at o'clock M. of that day, offer for sale to the highest bidder, the following described real estate: (Here de- scribe the property.) Terms of sale : (Here set forth the terms of sale.) E. L. S., Special Commissioner. 12 The foregoing is the form pre- scribed by the Code of West Vir- ginia, Ch. 139, see. 7. FOEMS NOTICES. 13^7 I, M. C. A., Clerk of the Circuit Court of County, West Virginia, hereby certify that bond with security approved by me as sufficient, and in the penalty provided by said decree, has been given by said special commissioner. M. C. A., Clerk." No. 293. §1113. Of motion to dissolve an injunction. State of — County of - B- vs. -D- To-wit. In Chancery. Pending in the Circuit Court of said county and State. The plaintiff in the above entitled cause will please take notice that on Thursday, the day of "■ , 19 — , at two o'clock P. M. of that day, before the Judge, at chambers, in the town of , County of , and State aforesaid, the defendant, C D , will move the said Judge to dissolve the injunction heretofore granted in the said cause against the said C D ; said motion will be based on the papers, filings and proceedings in said cause, and also upon the answer of the defendant to be then filed (if the answer has not al- ready been filed). Yours respectfully, C D , By Counsel.^ Dated, day of , 19 — . J C— H , Solicitor for the Defendant. 13 See Code (W. Va.), Ch. 132, substantially from 4 Desty's Fed. sec. 12; 4 Desty, Fed. Proc. 635. Proc. 591. 1* The foregoing form is taken 1338 EQUITY PEOCEDUKE. Wo. 294. §1114, Of application for a rehearing of a decree entered by default. (After giving the title of the cause and the court wherein pending J as in No. 293, p-oceed as follows:) The plaintiff in the above cause is hereby notified that the undersigned, the defendant therein, will make application on the day of the September term, 19 — , of the Circuit Court of — — County, and State of , to rehear, by petition then to be filed, a decree rendered in the above entitled cause by default of any appearance therein, and which de- cree was rendered on the day of 19 — , and because of the following errors therein : (Here set forth the errors in consecutive order) ;^^ at which time and place he may attend and show cause, if any he can, why said petition should not be filed and said case reheard. C- D- Defendant. By Counsel. H- W- Solicitor for the Defendant. 15 In Slingluff vs. Gainer, 49 W. Va. 7, 37 S. E. Rep. 771, it is de- cided that on a motion to reverse a decree by default, the errors must be specified in the notice of the mo- tion, or on the record in the motion, or in a written assignment of errors filed as a part of the record. In the course of his opinion in this case, Brannon, J., says : " There are some errors remediable by ap- peal; some by motion. The Code prohibits us from reversing a, de- cree by default until the errors in it are presented to the court below. How can this court say on appeal that for given errors there was a, motion to reverse, unless we can af- firmatively see that those errors have undergone review in the court below ? In Gunn vs. Turner's Adm'r 21 Grat. 382, it is held that the no- tice must specify errors. This has. perhaps, been overruled in .Saun- ders vs. Griggs' Adm'r, 81 Va. 506; but as 1 Bart. Law Prae. 574, as- serts, the former decision is clearly the better one. It does not appear to us that those alleged errors liave been presented to the Circuit Court as ground for the reversal of the decree. They clearly have not been presented there. The appellant must show that they have been." In Saunders vs. Griggs, 81 Va. 506, it is held that in a notice to correct or reverse a judgment or decree by default no errors need be specified. FORMS NOTICES. 1339 ]ST"o. 295. §1115. That a commissioner's report has been completed. A B vs. I In Chancery. C^— D . . Pending in the Circuit Court of County, West Vir- ginia. To E. F. and G-. II., attorneys of record of the parties to the above cause: You are hereby notified that the report made by me in said cause under the decree of reference entered therein was by me completed on the day of , 19 — , and the said report is now in my office, together with the evidence, where you may examine the same if you so desire. J. W., Commissioner in Chancery for the County of and State of .^^ ISTo. 295a. § 1115a. To correct decree wherein there is clerical error. A B vs. ■ In Chancery. C D . In the Court of the County of and State of . The plaintiff in the above cause iS hereby respectfully noti- fied that the undersigned defendant therein will move the said court (or, the Judge thereof in vacation, specifying in the notice where the motion will he made), on the day of , 19 — , to correct a final decree rendered in said cause on the day of , 19 — , in the following particular, to- wit: (Here briefly designate the error to be corrected.) C D , Defendant. By Counsel. S K , Sol. 10 This notice is formulated from it This motion is based upon a the provisions of the Statute of statute existing in the Virginias. West Virginia, Code Ch. 129, sec. 7. See ante, sec. 349 and notes; Shu- 1340 EQUITY PROCEDUEE. No. 296. §1116. Of taking an account by a commissioner in chancery. Commissioner's Office , — — day of • , 19 — . The parties in the suit of vs. , etc., will take notice, that on the ■ day of , 19- — , at my office, in the town of W — ■ — , I will proceed to execute the decree rendered in said cause by the Circuit Court of — ■ — County on the day of , 19 — , when and where they are required to attend with such books, papers, vouchers and evidence, as will enable me to comply with the said order of court. M. G , Master Commissioner of Court of .^* mate vs. Crockett, 43 W. Va. 491, is The foregoing form is taken 27 S. E. Rep. 240; Code (W. Va.) from 2 Bart. Ch. Pr. (2nd ed.) Ch. 134, sees. 1, 5; Code (Va.) 1321. 1887, sees. 3447, 3451. FORMS EEPOKTS. 1341. CHAPTER XLIX. REPORTS. Sec. 1117. Of a commissioner in chancery upon a reference for an account. Sec. 1118. Of .sale by a special commissioner. Sec. 1119. Of commissioners appointed to assign dower. Sec. 1120. Of commissioners appointed to make partition of real estate, where partition is made. Sec. 1121. Of commissioner as to whether minor's interest will be pro- moted in a suit to sell infant's lands. Sec. 1122. Of sale of special commissioner in suit to sell infant's lands. Sec. 1123. Of commissioners appointed to make partition, that lands are not susceptible of partition. Sec. 1124. Of commissioners appointed to assign dower and make partition among the heirs at law. Sec. 1125. Of a commissioner upon exceptions to an answer. See. 1126. Of a commissioner in a suit to surcharge and falsify the settle- ment of the accounts of a fiduciary. Sec. 1127. Of sale of property under an order of attachment. 1^0. 29Y. §1117. Of a commissioner in. chancery upon a reference for an account. State of • County of ss. A B- vs. C D- In Chancery. Pending in the Circuit Court of said County. To the Honorable , Judge of the said Court : fPursuant to a decree of reference made and entered in this cause on the day of , 19 — , whereby the said cause 1342 EQUITY PEOCEDUEB. was referred to the undersigned commissioner in chancery to take and state an account showing (here copy from the decree the matters to he reported upon), the undersigned gave due notice to the parties, as required by the terms of said decree, that on the day of , 19 — , he would proceed, at his office in the town of , county and State aforesaid, to ex- ecute said order ; but the plaintiff failing to appear, the exam- ination and proceedings were adjourned until the day of , 19 — ; and due notice thereof given to R. IST: H., plaintiff's solicitor, when the plaintiff appeared by his said solicitor and the defendant in person, as well as by his solicitor, J. A. ; whereupon your commissioner duly examined the witnesses pro- duced by both parties touching the matters of inquiry before him, reducing their examination to writing in the form of depositions, which are herewith returned and made part of this report. And also examined the documentary proofs before your commissioner which are also herewith returned. And thereupon, upon due consideration of all which your commissioner respectfully submits the following report: (Here present a concise statement of the findings of the commissioner on the various matters referred with a reference to the proof on which he bases the finding on each item or head of reference; or as may he most appropriate, a general refer- ence at the conclusion of the report as follows: Reference is made to schedules A., B. and C, hereto annexed or herewith filed as part of this report.) All of which is respectfully submitted this day of , 19—. L B , Commissioner in Chancery. '^ 1 See Barton's Suit in Eq. (In- 780; Hanly vs. Potts, decided by gersoll ed. ) 123; Jackson vs. Hull, Supreme Court of Appeals of West 21 W. Va. 603 ; also Dewing vs. Hut- Virginia, in Dec., 1902, and not yet ton, 40 W. Va.' 521, 21 S. E. Rep. reported. FORMS EEPOKTS. 1343 No. 298. §1118. Of sale by a special commissioner. To the Honorable , Judgfe of the Circuit Court of County, State of ■ : We, the undersigned special commissioners, respectfully re- port unto your honor that hy virtue of a decree of the Circuit County of County, in the chancery cause of L. J. M. vs. E. S. et als., rendered at the October term, 19 — , of said Cir- cuit Court, that after having advertised the time, terms and place of sale in the W R — • — , a nevs^spaper published in , , for four successive weeks, we, the said commis- sioners, offered and exposed for sale, at the front door of the Court House in said county, the real estate in the bill and proceedings mentioned, on the day of October, 19 — , at which sale E. S. became the purchaser of the one undivided half of lot No. 10 (here describe the lot) , he being the highest bidder, for the sum of dollars; and the said E. S. hav- ing the first lien on said lot by virtue of the decree aforesaid for the sum of dollars, his claim being more than the purchase money of said property, we neither required him to pay any money or to give bond, but respectfully ask that a decree be rendered against said E. S. for the costs of the suit and commissions and costs of sale herein if the money otherwise obtained, as hereinafter shown, be insufScient for that purpose. We also offered for sale on that day, at the Court House of said county, lot No. 11 (here describe the lot), of which said L. ,T. M. became the purchaser for the siim of $ , she being the highest bidder therefor. We further report that she paid us in hand the cash install- ment of $ , and executed her three several bonds (or notes) for $ each, with A. E. B. as her security, payable in 6, 12 and 18 months, with interest from day of sale; that we believe said property brought a fair price at said sales, and would most respectfully recommend that said sales be con- firmed. We herewith return said notes and certified check of the 1344 EQUITY PEOCEDCEE. Bank of , payable to- our order, for the sum of $ , the amount of the cash payment of L. J. M. on the above described lot, in which bank said cash payment has been deposited. All of which is respectfully submitted. J. B. M., W. H. T., Special Commissioners.'' No. 299. §1119. Of commissioners appointed to assign dower. State of , County of — — . 3 In Chancery. Jane D- vs. James D and Julia D- Pending in the Circuit Court of the County and State afore- said. To the Honorable , Judge of the said Court: * We, the undersigned commissioners appointed by this court by the interlocutory decree made and entered in said cause on the day of May, 19 — , to assign the dower of Jane D., widow of John D., deceased, in the property hereinafter de- scribed, situate in the County of S , respectfully report that we, having been first duly sworn as required by law, faithfully and impartially to execute the trust reposed in us, did on the day of May J 19 — •, meet on the premises hereinafter de- 2 See 13, Enc. Forms, 535-540; 4 ner and for the time required by the Desty, Fed. Proc. 639 ; Hartley vs. said order," it will be taken that the Eoffe, 12 W. Va. at p. 416; Laidley publication and posting of notice of vs. Jasper, 49 W. Va. 526, 39 S. E. sale required by the court's order Rep. 169. were made, unless the contrary ap- When a report of a judicial sale pear. Laidley vs. Jasper, 49 W. Va. states that the sale was made " af- 526, 39 S. E. Rep. 169. ter advertising the sale in the man- FORMS REPOKTS. 1345 scribed, in obedience to the mandate of, and in cjonformity to the requirements of said decree. Jane D., by J. M., her attor- ney, and the said James D. and Julia D., heirs at law of the said John D., in person, appeared at the time and place aforesaid. Whereupon we caused a survey to be made of the lands and premises particularly described in said decree, that is to say (describing particularly the lands and premises), a map of which survey is hereto annexed and made a part of this report. We do further report that we have assigned and laid off to the said Jane D. for her dower the one-third part of said prem- ises as follows : (Here particularly describe the part set off as dower.) We do further report that our charges attending said assign- ment, including our fees as commissioners, are as follows, to- wit: (Here set out itemized account.) In witness whereof we have hereunto set our hands this day of October, 19 — . IS^o. 300. §1120. Of commissioners appointed to make partition of real es- tate, where partition is made. State of , County of . John D , Plaintiff, vs. Richard R , Jane D , Samuel I In Chancery. S^— and William W , De- fendants. Pending in the Circuit Court of the County and State aforer said. To the Honorable , Judge of said Court : **The undersigned, commissioners appointed by a decree 1346 EQUITY PROCEDURE. rendered by this honorable court in the above entitled cause to make partition of the real estate in the bill and proceedings in said cause mentioned and described, respectfully submit the following report of their action in the premises : They report that th^y were first duly sworn according to law, and attached to the accompanying report is a copy of the oath by them severally taken and subscribed. That after having taken said oath, they went, on the — ■ — day of November, A. D. 19 — , upon the said premises and viewed the .same, each of the said commissioners being then and there present ; that the lands mentioned in the bill and pro- ceedings of said cause are described as follows, to-wit : (Describ- ing them), situate in the County of G and State of W . That in the judgment of the undersigned, the above men- tioned lands are susceptible of division without manifest prejudice to the parties in interest. That *itt pursuance of said decree the undersigned then pro- ceeded to make partition and division of the said lands, and by sufficient metes and bounds to divide, sever and set ofE the same, quantity and quality being by us relatively considered,- to and among the several persons hereinafter mentioned, in sev- eralty, according to their respective rights and interests therein, as the same were adjudged, ordered and directed by the court, and they have made partition and division of said lands as follows, viz : To Kiehard R. we assigned one-fourth portion of said land, as follows : (Describing the land assigned to Richard R.) To Jane D. we assigned one-fourth portion of said land, as follows: (Describing the land assigned to Jane D.) To Samuel S. we assigned one-fourth portion of said land, as follows : (Describing the land assigned to Samuel S.) To William W. we assigned one-fourth portion of said land, as follows: (Describing the land assigned to William W.) The undersigned further report that they employed Charles C, a surveyor, and the necessary assistants to aid them in mak- ing said partition, and that for the better understanding of the location and shape of the aforesaid lands they have caused a FOKMS EEPOKTS. 1347 map thereof to be made, by whieb the parts allotted to the re- spective parties are shown, which said map is hereto attached and made a part of this report, marked Exhibit A. "The undersigned further report that the items of the va- rious expenses attendant upon the execution of the aforesaid decree and order, including the fees of the undersigned com- missioners, is hereto annexed and made a part of this report, marked Exhibit B. Witness our hands this day of , 19 — . No. 301. ' §1121. Of commissioner as to whether minor's interest will be promotedin a suit to sell infant's lands. State of , County of Guardian of .In Chancery. ^ — ■ — B , Guardian of C D , a Minor, vs. C D . Pending in the Circuit Court of said County and State. To the Honorable , Judge of said Court: *Your commissioner (the parties duly acknowledging service of notice of the time and place of executing the decree made in above entitled cause on the day of , 19 ), pro- ceeded at his office on the day of , 19 , to perform the duties required of him by said decree. In making the inquiries therein directed he took the examinations of Welling- ton G. and A. D. W. on interrogatories agreed on by John H., 3 There must not be less th3.ii The foregoing form is constructed three commissioners, any two of from the principles laid down in whom may act, Hogg Eq. Princp., Hogg's Eq. Prinep., sec. 376. sec. 376. 1348 EQUITY PEOCEDUEE. guardian ad litem of the infant defendant Robert P. Your commissioner also took the examination of James M. T. At the examination of Mr. T., John H., guardian ad litem was present in person. These examinations of witnesses and the notice aforementioned are returned with this report. And from the evidence thus furnished your commissioner, now reports : 1. That the interest of the infant defendant Robert P. will be promoted by the sale of the property mentioned in the bill, and the investment of the proceeds of sale in other property. 2. The rights of no person will be violated' by the sale. Respectfully submitted, A S , Comm'r.* ISTo. 302. §1122. Of sale of special commissioner in suit to sell infant's lands. (As in No. 301 to the * and then proceed as follows:) The undersigned commissioner appointed by the decree made in the above cause, proceeded to execute the duties thereby en- joined upon him. Believing it would enhance the price ob- tained for the land, your commissioner directed the surveyor, Mr. Henry P., to lay off the land into three tracts as nearly equal as possible. He did so, and made a plat and survey of the land ; tract A, embracing the dwelling hoiise containing 186 acres ; tract B. containing 216 acres, and tract C. contain- ing acres. After advertising the time, place and terms of sale in the , a newspaper piiblished in , once a week for weeks and posting notice of the sale at the front door of the Court House, and at and in this county, your commissioner proceeded to sell at public auction, to the highest bidder, on the premises (or, at the front door of the * The foregoing form is taken from 551. See Lancaster vs. Barton, 92 Sands' Suit in Equity (2nd ed.) Va. 615, 24 S. E. Rep. 251. FORMS EEPOETS. 1349 Court House of this county) on the day of , the said land in three parcels: For tract A., containing 186 acres, Lewis M. made the high- est bid and became the purchaser at $3,200. For tract B., containing 216 acres, James G. made the high- est bid and became the purchaser at $3,240 ; and For tract C, containing acres, Richard E., having made the highest bid 'became the purchaser at $2,100. The purchasers Lewis M. and James G. have complied with their purchases by paying the cash installment and giving bonds for the credit installments. Mr. Richard R. has failed thus far to comply. Lie claims that the title to the land purchased by him is not a good title and alleges other objections to the sale. He requests your commissioner to return with this report his letter containing the objections he makes to the title. He states that when these objections are removed he will comply with his purchase. Your commissioner reports the facts to the court for its action in the premises. Deducting from the cash installments, amounting to . . $ ■ The fee of surveyor $ The fee of counsel $ Costs of advertising $ Costs of posting notices $ Commissions of commissioner on the $6,440 . . $ Your commissioner has deposited the residue of the cash in- stallments, $ , in the — — Bank, to the credit of the court in this cause and returns herewith a certificate of such deposit. He also returns the bonds of the purchasers given for the credit installments. Your commissioner has given bond required by the decree directing the sale. Respectfully submitted, A S , Comm'r." B The foregoing form is taken from Sands' Suit in Equity (2n(i ed.) 555. 1350 EQUITY PROCEDTJBE. ISTo. 303. §1123. Of commissioners appointed to make partition, that lands are not susceptible of partition. (As in No. SOO to the * and then proceed as follows:) and it appears to us {or to a majority of us) that partition thereof (or, if a portion of the land cannot he partitioned, say, " that partition of the following lot or ' tract ' or ' portion thereof,' to-wit," describing itj cannot be made without great prejudice to the owners, for the reasons following, to-wit: (Stating reasons.) (Conclude as in No. SOO from the °.) ISTo. 304. §1124. Of commissioners appointed to assign dower and make partition among the heirs at law. (After the title and commencement, as in No. SOO, down to the ** then proceed as follows:) The undersigned commissioners, appointed by a decree ren- dered by this honorable court in the above entitled cause tp assign dower in and make partition of the land in the bill and proceedings in said cause mentioned and described, respectfully submit the following report of their action in the premises : They report that they were first duly sworn according to law, and attached to the accompanying report is a copy of the oath by them severally taken and subscribed. That after having taken said oath they went on the day of , 19 — , upon the said premises and viewed the same, each of the said commissioners being then and there present; and upon actual view of the premises did set off and assign to the said J. D., as her dower in the lands, in the bill and pro- ceedings in this cause mentioned and described, the following FOEMS EEPOETS. 1351 tract, to-wit: (Here describe it); and that they made parti- tion of the same subject to the said dower, as follows : To the said K. K., one-fourth part thereof. (Here describe the same by metes and bounds.) To the said S. S., one-fourth part thereof. (Here describe the same by metes and bounds.) To the said W. W., one-fourth part thereof. (Here describe the same by metes and bounds) ; and To the said K. W., one-fourth part thereof. (Here describe the same by metes and hounds.) (Conclude as in No. 300 from the °.) No. 305. §1125. Of a commissioner upon exceptions to an answer. (As in No. 291 to the f, then proceed as follows:) In pursuance of an order of this honorable court made in the above entitled cause on the day of , 19 — , where- by the cause was referred to the undersigned as commissioner in chancery of this court, to look into the plaintiflF's bill of complaint which is filed in this cause, the answer of the de- fendant C — — D thereto ; and the exceptions taken by the plaintiff to said answer, and report to this court with all con- venient speed whether said exceptions are well taken or not, the undersigned commissioner respectfully reports that hav- ing been attended by the counsel of the respective parties, and having looked into said bill and answer, and the exceptions taken thereto, and having heard the arguments of the respective counsel in relation to said exceptions, and having duly consid' ered said bill, the answer, and arguments, do report that the first, second, fifth, and seventh exceptions are well taken; and that the ninth and all the other exceptions are not well taken; all of which is respectfully submitted. W M -, Commissioner in Chancery. Dated, day of , 19 — . 1352 EQUITY PEOCEDUEB. No. 306. §1126. Of a commissioner in a suit to surcharge and falsify the settlement of the accounts of a fiduciary. (As in No. 299 to the asterisk, and then proceed as follows:) Your commissioner examined the papers of the cause, and accounts heretofore filed by the said executor A W S — — ■, and he finds that the said executor js liable to be charged with the following amounts due on notes and deeds of trust securing the same : (Here specify the notes, their dates, amounts, by whom given and to whom payable, and tabulating them in orderly^ and systematic arrangement.) Your commissioner further finds that the said executor is entitled to the following credits on account of disbursements, which were not given him in a former settlement of his ac- counts: (Here set forth particularly all the disbursements.) Your commissioner further finds that there is now in the hands of the said executor, A W- — — S , including the interest thereon to date, the sum of dollars. All of which is respectfully submitted, this day of , 19—. 1^. P., Commissioner in Chancery.' No. 307. §1127. Of sale of property under an order of attachment. (As in No. 299 'to the *, then proceed as follows:) In pursuance of a decree made in the above cause, heard on the day of , 19 — ■, whereby the undersigned was appointed a special commissioner to make sale of the lands and 6 The foregoing form is substan- tially taken from the case of Sea- bright vs. Seabright, 28 W. Va,. 412. FOEMS REPORTS. 1353 tenements levied on by virtue of the attachment issued in the above cause, or so much thereof as may be necessary to satisfy the debts of the plaintiff, the undersigned does hereby report as follows : That he advertised the time, terms and place of sale, as required by said decree of sale, in the , a newspaper published in said county, for four successive weeks next pre- ceding the time fixed for making said sale, and posted said notice of sale at the front door of the Court House of said county for a like period ; that the undersigned fixed upon the day of ^ , 19 — , as the time, and the front door of the Court House of said county as the place, for making said sale. ?our commissioner further reports that he sold said lands to S ■ S — - — , who was the hi^est bidder, for the sum of dollars; that said J- — - — S ■ made the cash payment of dollars, and executed his note payable in montbs for the residue, "with J — — ■ IT • as his surety. Your commissioner further reports that he deposited said cash payment in the Bank, for which he took a certificate of deposit, which, together with the said note, your commis^ sioner herewith returns. Your commissioner further reports that he gave bond in the penalty of dollars with as his security, as required by said decree; that he herewith returns copies of the notices of sale as published and posted as above stated. All of which is respectfully submitted. P Q , Special Commissioner. Dated, this ■ day of ■ , 19 — . 1354 EQUITY PEOOEDUKB. CHAPTER L. EXCEPTIONS. Sec. 1128. To an answer for insufficiency. Sec. 1129. To an answer for impertinence and scandal. Sec. 1130. To the report of a commissioner in chancery. Sec. 1131. To a special commissioner's sale. Sec. 1132. To the report of a commissioner assigning dower. Sec. 1133. To the report of commissioners making partition of real estate. Sec. 1134. To the sufficiency of an attachment bond. No. 308. §1128. To an answer for insufficiency. James Willis, by his next friend, etc., vs. }■ In Chancery. Edward and William Willis. Pending in the Court of County, State of * Exceptions taken by the said complainant to the joint an- swer of the said defendants to his bill of complaint in this cause. First. Eor that the said defendants have not, according to the best of their information, knowledge and belief, set forth and discovered in their said answer, whether the said testator, Thomas A., in the complainant's said bill named, duly made and executed such last will and testament in writing, of such date, and of such purport and effect as in said bill mentioned, etc. (Pursuing the words of such interrogatories of the hill as are not sufficiently answered.) Second. Eor that the said defendants have not, according to the best of their knowledge, information and belief, set fortti and answered whether the said complainant hath or hath not, by his father and next friend, applied to the said defend- ant, etc., or how otherwise. FORMS EXCEPTIONS. 1355 In all which particulars the complainant is advised that the answer of the defendant is altogether evasive, imperfect, and insufficient. Wherefore, said complainant doth except thereto, and prays that the defendants may be compelled to amend the same, and to put in a full and sufficient answer to the com- plainant's bill. S. S., Solicitor for the Plaintiff.^ 'No. 309. §1129. To an answer for impertinence and scandal. (As indicated in No. 308 to the * and then as follows:) Exceptions taken by A. B., the complainant, to the answer (or separate answer) of C. D., the defendant (or one of the de- fendants) in this cause, for impertinence and scandal. [First Exception : Eor that the said answer, beginning with the words " then being," in the first line on the second page thereof, to and including the words " this defendant," in the seventh line on the third page thereof, is impertinent, and ought to be expunged. Second Exception: Eor that said answer, commencing in the fourth line on the fifth page thereof with the words fol- lowing, to-wit : " That at the commencement of the said part- nership," and ending on the ninth line of the sixth page thereof with the words " discounted at the said bank," is scandalous and impertinent, and ought to be expunged. In all which particulars the complainant humbly insists that said answer is irrelevant, imj)ertinent and scandalous : where- fore said complainant excepts thereto, and humbly prays that the impertinence and scandal of the said answer excepted to as aforesaid may be expunged, with costs. B^_ F B , Solicitor for the Complainant. 1 The foregoing form is taken from Barton's Suit in Equity, 105. See ante, see. 414. 1356 EQUITY PROCEDUEE. No. 310. §1130. To the report of a commissioner in chancery. (After the style of the cause and the court in which it is pending proceed as follows:) Exceptions taken by E. F., one of the above named defend- ants, to the report of Commissioner J. M. A., to whom this cause was referred by decree made herein on the day of , 19 — , and which report bears date on the day of First Exception : For that said commissioner (here set forth specifically the grounds of the exception). Second Exception : For that the said commissioner (here set forth specifically the ground of the second exception, and continue until all exceptions are taken). Wherefore the said defendant doth except to the said report of the said commissioner and prays that his said exceptions may be sustained, that the said report may be corrected in the man- ner indicated by said exceptions (or that the said report may he recommitted, or whatever is necessary to he done to meet the purposes of the exceptions). W H , Solicitor for the Defendant.' No. 311. §1131. To a special commissioner's sale. (After the style of the cause and the court in which it is pending, proceed as follows:) Exceptions taken by the defendant to the sale made in the above cause by E F , special commissioner. The defendant, C D , excepts to the sale of the real estate made on the day of , 19 — , by E F , special commissioner, upon the following grounds :* 2 See Bart. Suit in Eq. 124; Tyler's Mit. Eq. PI. and Pr. 642. FOKMS EXCEPTIONS. 1357 First. Because (here set forth the first ground). Second. Because (here set for the second ground, and con- tinue until all the grounds of exception are set forth). Wherefore the said defendant prays that his said exceptions may be sustained ; that the said sale may be set aside ; and that the property may be resold under the decree of sale entered in this cause. (And if it is desired to have the property sold in separate lots instead of as a whole, and the decree does not so provide, and the commissioner has failed to do so, though it is his duty so to do in the absence of special directions, ash the court for specific directions as to the mode of sale.) C D , By Counsel. J F— E , Solicitor for the Defendant. No. 312. §1132. To the report of a commissioner assigning dower. (Here proceed as in No. 311, mutatis mutandis, down to the asterisTc *.^ First. Because the" assignment of dower is not made by proper metes and bounds. Second. Because the said commissioners were not sworn as required by the decree appointing them. Third. Because (here set forth any other ground). Wherefore the said defendant prays that her said exceptions may be sustained ; that said dower may be assigned by proper metes and bounds; and that the said assignment may, in all respects, be made as required by the decree directing the as- signment, and as the law in such case provides. C D , By Counsel. H r U , Solicitor. 1358 EQUITY PKOCBDUEE. JSTo. 313. §1133. To the report of commissioners making partition of real estate. (As in No. 311, mutatis mutandis, to the *, and then proceed as follows:) First. Because the said commissioners, in making their said report, did not assign to the defendant J H his equal one th part of said real estate. Second. Because the said commissioners allotted to the de- fendant E r more than his equal one th part of the premises to be partitioned. In support of these exceptions the defendant here files the affidavits of L M and W P ; wherefore the defendant excepts to the report of the commissioners in the above cause, and prays that his said exceptions may be sus- tained; that the said commissioners be required to make other and correct partition of said real estate, according to the decree appointing them; that they be specially instructed to so make partition that the exceptor shall receive his equal one ^th part of the premises to be partitioned. J. H., By Counsel. H S- Solicitor for J — — H- No. 314. §1134. To the sufficiency of an attachment hond. (After the style of the cause and the court in which it is pending, proceed as follows:) Exceptions taken by the defendant to the attachment bond filed in the above cause. The defendant excepts to the bond executed by the plaintiff as principal and W C L and L M as FORMS EXCEPTIONS. 1359 his sureties, bearing date on the day of , 19 — , and upon which possession was taken of the property levied on in this cause: First. Because (here set forth the ground of exception) . Second. Because (here set forth the further ground of ex- ception until the exceptions are all taken). Wherefore the defendant prays that his said exceptions may be sustained ; that the plaintiff be required to give a good and sufficient bond within a reasonable time, as the court shall in its discretion direct; and in default thereof that the property attached herein be returned to the possession of this defendant. C B-^, By Counsel.^ J L K , Solicitor for the Defendant. 3 See Code (W. Va.), Ch. 106, sec. 6. 1360 EQUITY PItOCEDUKi;. CHAPTER LI. ORDERS AND DECREES. Sec. 1135. Striking plea in abatement from the record. Sec. 1136. Setting plea down for argument. See. 1137. Holding plea in abatement insufficient upon argument. Sec. 1138. Referring cause to a commissioner to take an account in a suit against the estate of a decedent. Sec. 1139. Referring cause to a commissioner to take an account in a creditors' suit to enforce judgment liens. Sec. 1140. Referring cause to a commissioner in a suit to surcharge and falsify the settlement of the accounts of a fiduciary. Sec. 1141. Amending bill before appearance by the defendant. Sec. 1142. Allowing bill to be amended after an appearance and demurrer. Sec. 1143. Allowing bill to be amended after answer filed by the defendant. Sec. 1144. Allowing bill to be amended by adding new parties, and re- manding cause to rules for that purpose. Sec. 1145. Allowing bill to be amended to conform to the proofs and with- out prejudice to an injunction issued in the cause. Sec. 1146. Allowing the return on a summons to be amended. Sec. 1147..- Allowing an answer to be amended. Sec. 1148. Entering motion to quash an attachment, and overruling the same. Sec. 1149. Entering motion to quash an attachment and sustaining said motion. See. 1150. Filing plea in abatement of an attachment. Sec. 1151. For specific personal property embodying an order of sale under the laws of Virginia. Sec. 1152. Filing petition of third party making claim to the property attached or to some interest therein. Making up issue on petition of intervention in attachment. Making up issue under the statute of West Virginia on plea in abatement of an attachment. Hearing cause on intervention and garnishment in attachmenU Of sale of personal property upon attachment and order of publication. Of sale of real estate upon attachment and order of publication. The sale of real estate upon an attachment in a suit wherein the defendant has appeared. Sec. 1159. For sale of personal estate upon attachment in a suit to which the defendant has appeared. See. 1153. Sec. 1154. Sec. 1155. Sec. 1156. See. 1157. Sec. 1158. Sec. 1160. Sec. 1161. Sec. 1162. Sec. 1163. Sec. 1164. Sec. 1165. FOEMS OKDEKS AND DECEBBS. 1361 For the sale of property under attachment that is perishable or expensive to keep. Confirming sale under an attachment. Annulling marriage. Tendering answer and asking leave to file the same. Filing answer and noting exceptions thereto. Referring answer to a commissioner to expunge scandalous matter. See. 1166. Adjudging answer insufficient and directing further answer to be filed. Filing answer and general replication thereto. Granting permission to guardian to submit to arbitration a, matter relating to his ward's estate. Submitting cause to arbitration and making the same a rule of court. Filing award of arbitrators, making allowances to them and directing summons to show cause against said report. Entering up award as the decree of the court. Of attachment for contempt of court. Finding against intervener in an attachment suit. For sale of property attached when debt is not due. Against garnishee in an attachment suit. Overruling defendant's exceptions to an attachment bond. Sustaining defendant's exception to an attachment bond. Dismissing bill without prejudice. Sustaining exceptions to forthcoming bond in attachment suit and requiring officer to obtain a good bond. Cancelling an instrument as a cloud upon title to real estate. Cancellation or rescission of an instrument on the ground of fraud. Sec. 1182. Cancellation or rescission of an instrument on the ground of infancy. Sec. 1183. Cancellation or rescission of a writing because of the plaintiff's insanity. See. 1184. Authorizing sale of church property. Sec. 1184a. Overruling demurrer to bill and giving rule to answer. See. 11846. Sustaining demurrer to bill and remanding cause to rules with leave to amend. Sec. 1185. Suggesting non-residence of plaintiff and demanding security for costs. Sec. 1186. Of divorce a mensa et thoro, where the defendant has not appeared. Sec. 1187. Of divorce a mensa et thoro for alimony, where the defendant has appeared. Sec. 1188. Of divorce a vinculo matrimonii and awarding custody of children. Sec. 1189. Of divorce a vinculo matrimonii and for alimony. Sec. 1190. Of a divorce a vinculo matrimonii after a former divorce a mensa et thoro. Sec. 1167. See. 1168. Sec. 1169. Sec. 1170. Sec. 1171. Sec. 1172. Sec. 1173. Sec. 1174. Sec. 1175. See. 1176. Sec. 1177. Sec. 1178. Sec. 1179. See. 1180. Sec. 1181. Sec. 1201. Sec. 1202. See. 1203. Sec, 1204. 1362 EQUITY PEOCEDUEE. Sec. 1191. Of divorce granted on answer in nature of cross-bill setting up claim to affirmative relief. Sec. 1192. Refusing a divorce to the plaintiff, and to the defendant on an answer in the nature of a cross-bill. Sec. 1193. Directing payment of temporary alimony to the plaintiff in term time. See. 1194. Directing payment of temporary alimony to the defendant in vacation. Sec. 1195. Appointing commissioners to assign dower. Sec. 1196. Confirming report of commissioners assigning dower. See. 1197. Directing the payment of a gross sum in lieu of dower. See. 1198. Overruling some exceptions to commissioner's report and sus- taining others. Sec. 1199. Of reference for the settlement of executorial and administra- tion accounts. Sec. 1200. Dismissing bill to set aside deed on the grounds of fraud and undue influence. Setting aside fraudulent conveyance in favor of creditors. For distribution of personal estate by administrator or exec- utor. Foreclosure of mortgages by sale of the premises. For an account of rents and profits under bill for equity of redemption. Sec. 1205. Referring cause on guardian's bill to sell real estate to a commissioner in chancery. Sec. 1206. Confirming commissioner's report and directing sale of in- fant's lands. Sec. 1207. Upon guardian's petition to sell real estate of infant, hearing evidence and authorizing sale thereof. Sec. 1208. Confirming sale of infant's land and directing investment of proceeds of sale. Sec. 1209. Entering rule against purchaser at judicial sale for failure to comply with his purchase. Sec. 1210. Overruling exceptions to commissioner's report of sale of in- fant's land, and requiring purchaser to comply with terms of sale. Sec. 1211. Awarding an injunction by a judge in vacation to restrain the commission of waste. Sec. 1212. Awarding an injunction by the court in term time to judg- ments at law. Awarding injunction in vacation without bond. For an injunction against a corporation. Made in vacation overrruling motion to dissolve an injunction. Made in vacation dissolving an injunction. Made in term time overruling motion to dissolve injunction. Made in term time, dissolving an injunction and dismissing the bill. Sec. 1219. Dissolving injunction to an action at law, and setting aside a confession of judgment. Sec. 1213. Sec. 1214. Sec. 1215. Sec. 1216. Sec. 1217. Sec. 1218. FORMS ■ OEDERS AND DECRBES. 1363 See. 1220. See. 1221. Sec. 1222. Sec. 1223. Sec. 1224. Sec. 1225. Sec. 1226. Sec. 1227. Sec. 1228. Sec. 1229. Sec. 1230. Sec. 1231. Sec. 1232. Sec. 1233. Sec. 1234. See. 1235. See. 1236. See. 1237. Sec. 1238. See. 1239. See. 1240. See. 1241. See. 1242. See. 1243. Sec. 1244. Sec. 1245. Perpetuating an injunction to a trust sale. Dissolving injunction and discharging receiver. Dissolving injunction unless new bond be given. Directing issue out of eluincery. Directing an issue devisavit vel non. Enforcing mechanics' lien. Enforcing vendor's lien. Setting up lost instrument and entering decree thereon. Declaring a deed to be a mortgage. Authorizing mortgage on lands of infant by his guardian. Confirming report of guardian as to borrowing money and authorizing the execution of a mortgage. Appointing commissioners to make partition of real estate, and directing manner of partition. Confirming report of commissioners in making partition of the real estate. ConJirming commissioner's report in creditors' suit to enforce judgment liens, and appointing special commissioner to sell land. Filing cross-bill and appointing receiver, as therein prayed for. Appointing receiver to rent real estate. Appointing receiver in vacation — general form. Of sale in a suit where the property of principal and surety may be sold. Of sale against lands of decedent. For the specific performance of a contract for the sale of real estate. For specific performance after the writing nas been reformed. Upon the verdict of a jury upon an issue out of chancery. Upon verdict of jury devisavit vel non finding for the will. Upon verdict of jury on an issue devisavit vel non finding against the will. Setting up a lost will. For the construction of a will. Wo. 315. §1135. Striking plea in abatement from the record. A B- In ChanccTy. C- vs. -D- *This day the plaintiff moved the court to strike from the record of this cause the plea in abatement iiled therein at rules, which motion is set down for argument ; and the matters of law arising thereon being argued by counsel and consid- 1364 EQUITY PEOCBDUKE. ered by the court, said motion is hereby sustained and said plea stricken from the record o/ this cause, as constituting no defense thereto. "^ No. 316. §1136. Setting plea down for argument. (After the caption ^ as in No. 315, to the *.) Upon motion of the plaintiff (or defendant, as the case may he) the defendant's plea in bar filed in this cause is here set down for argument. '^ No. 317. |1137. Holding plea in abatement insufficient upon argpunent. (As in No. 315 to the *.) The matters of law arising upon the argument as to the plea in abatement filed in this cause having been by the court duly considered, it is hereby adjudged, ordered and decreed that said plea be and the same is hereby taken and held as insuffi- cient to constitute any defense to the plaintiff's bill, and that said plea be and the same is hereby overruled.^ i Ante, sec. 293. this plea froni the cause, which was This form ia based upon the de- done, and the action of the court in cision of the court in Simpson vs. thus disposing of tlie plea was af- Edmiston, 23 W. Va. 675. In this firmed on appeal, case a plea in abatement was filed 2 See ante, sea. 392. after a decree nisi, when it was too 3 That the sufficiency of a plea late under the statute to file « plea is determined by setting same down in abatement. The plaintiff after- for argument, see ante, sec. 392. wards moved the court to strike FORMS OKDEES AND DBCBEES. 1365 No. 318. §1138. Referring cause to a commissioner to take an account in a suit agpainst the estate of a decedent. A — — B , who sues on behalf of himself and all other creditors of J K , deceased, iln Chancery. vs. C D and others. This cause came on this day to be heard upon the process duly served upon the defendants ; upon the bill regularly filed at rules, the decree nisi thereon, and taken for confessed and set for hearing at rules by the plaintiff as to the defendants C — — D and E F ; upon the separate answer of Gr — ■ — H , administrator of J K , deceased, and general replication thereto ; upon the answer of M JST , guardian ad litem of the infant defendants L K and P K , and general replication thereto ; upon the depo- sitions on behalf of the plaintiff taken and filed in the cause; and was argued by counsel.* Upon consideration of all which it is adjudged, ordered and decreed that this cause be and the same is hereby referred to T ]Sr , one of the commissioners in chancery of this court, to take, state and report an account, showing," First, what personal estate the said J K ovmed at the time of his death, the character and value thereof. Second, what disposition, if any, was made of said personal estate by the defendant G H , administrator of J K , deceased, and how much, if any, of said personal es- tate, is now in the hands of said G H as administra- tor, available for the payment of any debts owing from the estate of said J — ■ — K , deceased. Third, a settlement of the administration of the estate of said decedent by said G H — — , his administrator. Fourth, what debts said J K — — owed at the time of his death, to whom they are payable, their nature, and their respective amounts and priorities. 1366 EQUITY PKOOEDUBE. Fifth, what real Qstate was owned by the said J K at the time of his death, its quantity, description and location. Sixth, and such other matters as any party in interest may require, the same being pertinent, or such other matters as said commissioner himself may deem pertinent, whether so request- ed or not. But before proceeding to take said account the said commis- sioner is hereby directed to see that the Clerk of the Circuit Court of this county shall publish the notice to creditors of said decedent as required by Ch. 86, sec. 8, of the Code of West Virginia,* and fsaid commissioner shall give notice :j;to all the parties to this suit of the time and place of taking the said account by publication thereof for , in some newspaper published in this county, or by personal service of such notice on the parties or their counsel. And what the said commissioner shall do under this decree he shall report to the next term of this court, until which time this cause is continued. No. 319. §1139. Referring cause to a commissioner to take an account in a creditors' suit to enforce judgment liens. (After the title and proper recitals, as indicated in No. 318 to the °.) First, all the real estate owned by the judgment debtor, C D — — , where situate, its description and the quantity thereof. Second, the liens upon said real estate, by whom held, their respective amounts and priorities. * See ante, sec. 599. is here inserted as part of the form This part of the decree directing as a suggestion to be embodied in the commissioner to see that the decrees of this character, that so clerk publish the notice to the credi- essential a step in such a case may tors of the decedent ia not required not be omitted, so that possible de- by the statute, as it is one of the lay and error may thus more likely official duties of the clerk; but it be avoided. FOIiMS ORDERS AND DEGREES. 1367 Thirds whether said real estate will in five years rent for a sufficient sum to pay off and discharge said liens and the costs of this suit. Fourth, and such other matters as any party in interest may require, the same being pertinent, or such other matters as said commissioner himself may deem pertinent whether so required or not. But before proceeding to take said account, the said com- missioners shall publish the notice to lienholders as required by Ch. 139, sec. 7, of the Code of West Virginia and (con- clude as in No. SI 8 from {he j-.)^ 1^0. 320. §1140. Referring cause to a commissioner in a suit to surcliarge and falsify the settlement of the accounts of a fidu- ciary. (After the style of the suit, and the recital of the matters upon which the cause is heard.) Upon consideration of all which the court is of opinion to and doth hereby refer this cause to J C W , one of the commissioners in chancery of this court, to take an ac- count and report upon the following matters : First, any and all omissions committed and made by E r , administrator of C D , deceased, in his settle- m.ent of the estate of said decedent, treating such settlement as prima facie correct as to all matters embodied in it, except such as may be specifically pointed out and proved to be er- roneous. Second, whether the specific items mentioned in the plain- tiff's bill as personal property belonging to the estate of C D , deceased, did belong to said estate, if so, are such items properly chargeable to said E E , as the per- sonal representative. 5 See the ease of Neely vs. Jones, 16 W. Va., pp. 628, 629. 1368 EQUITY PEOCEDUEE. Third, (Here set out any other matter to he reported upon, until the scope of the inquiry is covered). But before proceeding to take said account said commis- sioner shall give notice (conclude as in No. SI 8 from the X)-" No. 321. §1141. Amending bill before appearance by the defendant. (After the title of the cause.) ' This day, before any appearance by the defendant, the plain- tiff amends his bill at bar in several important particulars as shovs^n by the amendments themselves on a separate paper, marked " Amendments to Bill." ^ No. 322. §1142. Allowing bill to be amended after an appearance and demurrer. (After the title to the cause.) This day the defendant filed a demurrer to the plaintiff's bill vsrhich demurrer is here set down for argument; and the c This form is founded upon the The defendant may be advised that principles announced and proceed- the plaintiflF has no case upon orig- ings had in Seabright vs. Seabright, inal bill, and indeed such may be 28 W. Va. 412; Radford vs. the case, and that the bill cannot Fowlkes, 85 Va. 820, 8 S. E. Rep. be cured by amendment, unless it 817; Leach vs. Buckner, 19 W. Va. introduce a new cause of action ; and 36; Corbin vs. Mills, 19 Gratt. 438, hence the defendant need not. for 456; see also Sands' Suit in Eq. that very reason, appear to the suit. 520, 521. It is suggested that when the plnin- ' As we have seen, ante, sec. 320, tiff amends his bill, he should do so the plaintiff may amend his bill be- without destroying its original iden- fore an appearance by the defend- tity. But while this is suggested ant as matter of right. But in fair- as being the proper coure, it is not ness to the defendant the record at all necessary that the amendment should show the manner and extent be made after the form given above. of the amendment. An appearance See anfr, sees. 333, 335. where it is in the sense in which the term is shown that an amendment before here used means to offer some sort appearance may be made in any of defense, as by demurrer, plea, etc. manner desired by the pleader. FOEMS OEDBES AND DECEEES. 1369 matters of law arising thereon being argued by counsel and. con- sidered by the court, the said demurrer is hereby sustained, and said bill adjudged not to be sufficient in law." And thereupon the plaintiff moved the court for leave to amend his bill of complaint; and the court being of opinion that the insufficiency of the bill is such as may be relieved by amendment, the plaintiff hath leave to amend his said bill, but * such amendment to be made on a separate paper or in such manner as to show in what particulars the said bill is amended.* No. 323. §1143. Allowing bill to be amended after answer filed by the defendant. (After title of the cause.) This day the defendant tendered and filed his answer to the plaintiff's bill of complaint; ° whereupon the plaintiff moved the court for leave to amend his said bill, and the court hav- ing read and considered said bill and the answer thereto, is of opinion that said amendment is necessary and proper. The plaintiff therefore, hath leave to amend his said bill, but (conr elude as in No. 322 from the *./ No. 324. §1144. Allowing bill to be amended by adding new parties, and remanding cause to rules for that purpose. (As in No. 322, to Ihe ", and then continue as follows:) And thereupon the plaintiff moved the court for leave to 8 See ante, sec. 335 as to the man- bill should be made after appearance ner in which an amendment to the by the defendant. » See ante, sec. 335. 1370 EQUITY PEOCEDUEE. amend his bill by making G — — 11 and L K , parties defendant thereto. And it appearing to the court that said G H and L K are necessary parties to this suit in order to a full determination of the matters in controversy involved therein, it is therefore adjudged, ordered and decreed that the plaintiff be and he is hereby permitted to amend his said bill so as to make G^ H and L K parties defendant thereto. And upon further motion of the plaintiff this cause is hereby remanded to rules, to amend said bill in the manner hereinbefore indicated, and sue out process summoning said new parties to be made thereto, to answer the same.^" JSTo. 325. §1145. Allowing bill to be amended to conform to the proofs and without prejudice to an injunction issued in the cause. (After the style of the cause.) This cause came on this day to be heard upon the bill and its exhibits; upon the defendant's answer with general replication thereto; upon the depositions on behalf of the plaintiff taken and filed in the cause, and was argued by counsel. Thereupon the plaintiff asked leave of the court to amend his bill of com- plaint filed herein at bar, so that the same may conform to the proofs already taken in this cause. It is, therefore, on motion of I H C , Esquire, solicitor for complainant, adjudged, ordered and decreed that the plaintiff have leave to amend now here at bar, his said bill of complaint, so that the same will conform to the proofs of adultery already taken herein, and which amendment is shown on a separate paper from said bill, marked " Amendment fo Bill," and filed in the papers of this cause. And on motion of the defendant this cause is continued, to enable him to take further proofs in order to meet the allegation of adultery as shown 10 See ante, see. 324. FORMS OEDEKS AND DECREES. 1371 by said bill as amended in the manner and to the extent above named. And it is further adjudged, ordered and decreed that the proofs already taken herein be retained, and that the amend- ment made to said bill under fhis order allowed, shall be with- out prejudice to- the writ of injunction already issued and served in this cause. ^'^ No. 326. §1146. Allowing the return on a summons to be amended. (After the style of the cause.) Upon motion of the plaintiff by his counsel, the officer serv- ing the summons to commence this suit, hath leave to amend his return thereon so as to conform to the facts attending the service thereof; but to be made in such manner as not to mutilate the return as originally indorsed upon said sum- mons.^^ No. 327. §1147. Allowing an answer to be amended. (After the style of the suit.) This day the defendant moved the court for leave to amend his answer heretofore filed in this cause, by adding a new para- graph thereto, on page — ■ — thereof, just after the word " " and before the word " " as shown by a sepa- rate paper marked " Proposed amendments to answer," and filed his own affidavit in support of said motion. And the court having considered said affidavit, answer and proposed amendment thereto, is of opinion that the said motion ought n This form is adapted from the 12 See ante, sec. 31 as to the right one found in Green vs. Green, 26 to amend the officer's return upon Mich. 437. That such an amend- a summons, ment is proper in the courts of the Virginias, see ante, sec. 551. 1372 EQUITY PliOCEDUEE. to be, and the same is hereby, granted, and said answer per- mitted to be amended in the particular above indicated, which amendment is hereby accordingly made.^' No. 328. §1148. Entering motion to quash an attachment, and overruling the same. (After the title of the cause.) This cause came on this day to be heard upon the affidavit for an attachment filed in the cause; the order of attachment issued therein, and its levy upon the property of the defendant, as shown by the officer's return upon said attachment ; upon the motion of the defendant to quash the said attachment, and upon argument of counsel for plaintiff and defendant thereon. Upon consideration of which the court is of opinion to, and doth hereby, * overrule said motion to quash said attachment.^* No. 329. §1149. Entering motion to quash an attachment and sustaining said motion. (As in No. 328 to the * and then proceed as follows:) sus- tain said motion, and said attachment is hereby quashed. And upon further motion of the defendant it is ordered that the property attached and seized by the Sheriff of this county, under and by virtue of said attachment, be restored to the pos- session of the defendant. And it is adjudged, ordered and de- creed that the defendant do recover of and from the plaintiff his costs in and about the prosecution of his suit in this behalf expended. (When the jurisdiction of the court depends upon 13 See ante, sees. .343-347. i* See Duiilap vs. Dillard, 77 Va. 847. POEMS OEDEES AND DEGEEES. 1373 the validity of the attachment, and it is quashed and no further attachment is sued out, the order may continue as follows:) And the jurisdiction of the court in this case depending upon the maintenance of the attachment, and the plaintiff declining to take out further attachment herein, but relying ujx)n tlie sufficiency of the attachment heretofore issued in this cause, it is therefore adjudged, ordered and decreed, that the plaintift''s bill be and the same is hereby dismissed, but without prejudice to his right to institute another suit for the same cause, if he shall hereafter so desire. It is also adjudged, ordered and de- creed that the plaintiff do pay unto the defendant his costs about his defense in this behalf expended, which shall include a stati- ute fee of doUars.^^ JSTo. 330. §1150. riling plea in abatement of an attachment. (After style of suit.) This day the defendant tendered a plea in abatement of the attachment issued in this cause and asked leave to file the same. And thereupon the said plea is hereby filed, to which plea the plaintiff replies generally.^' 1^0. 331. §1151. For specific personal property embodying^ an order of sale nnder the laws of Virginia. (After style of suit.) This cause came on this day to be heard upon the bill and its exhibits; upon the answer of the defendant and general 15 See Capehart vs. Dowery, 10 W. but regularly the motion should go Va. 130. In this case the motion to the attachment alone. If the af- was made to quash not only the at- fldavit be insufficient the motion tachment, but also the affidavit upon must prevail, which the attachment was based; is See ante, sec. 781. 1374 EQUITY PEOCEDUEE. replication thereto; upon the affidavit, attachment, levy there- of, and return thereon in this cause ; upon the depositions taken and filed herein by the plaintiff and the defendant ; and upon the argument of counsel. Upon consideration of all which it is adjudged, ordered and decreed that the said plaintiff is entitled to the possession of the following described personal property, to-wit: (Here describe the property) ; and that he is entitled to recover against the said C D , the defend- ant, his damages sustained by reason of the detention of said personal property hereinbefore described, the sum of dol- lars, and his costs in and about the prosecution of his suit in this behalf expended. It is therefore, further adjudged, or- dered and decreed that , the officer having in his custody the said property, torwit, (Here describe the same), deliver the same to the said plaintiff, A B — ■ — , and that he sell the residue of the estate of the said C D in his hands under and by virtue of said attachment, to pay lie said sum of dollars damages as aforesaid, and the costs of this suit, including the costs of such sale, which he shall pay out of the proceeds thereof, and the surphis, if any, he shall pay to the said C D ." No. 332. §1152. Filing petition of third party making claim to the prop- erty attached or to some interest therein. (After the style of the cause to the * as in No. S15.) This day E — — F ■ presented to the court his ]x^tition, setting forth therein a claim of ownership to the property lev- ied on by virtue of the attachment sued out in this cause, and the court having read and considered said petition, it is ad- judged, ordered and decreed that said petition be and the same is hereby filed. ^* 1' See ante, sec. 793. is See ante, sec. 794. FOJtMS OEDEES AND DECJEJfiES. 1375 :Nro. 333. §1153. Making up issue on petition of intervention in attach- ment. (After title of the cause.) It is hereby ordered that a jury be duly impaneled to try at the bar of this court, " Whether the petitioner, P li S — ■ — , has any lien on the property, or any of it, levied ypon by the Sheriff of li — — County, under the attachment sued out by W H S in this cause against the estate of L K — ■ — D ." " And on the trial of said issue be- fore the jury said petitioner shall be treated as the plaintiff and A B , the plaintiff in the suit, as the defendant upon the trial thereof. No. 334. §1154. Making up issue under the statute of West Virginia on plea in abatement of an attachment. (After title of the cause.) This cause came on this day to be heard upon the plaintiff's bill and exhibits; the affidavit filed herein for an attachment; upon the order of attachment issued herein and the levy there- of, and return thereon made by the officer levying the same; upon the plea in abatement of said attachment and the plain- tiff's general replication thereto, and was argued by counsel. Upon consideration of all which it is hereby ordered that a jury be impaneled at the bar of this court, in the manner provided for the trial of an action at law, to try and determine, whether or not, at the time the affidavit for the order of attachment in this cause issued, was made, the defendant had left, or was about to leave the State, with intent to defraud his creditors. And upon the trial of such issue before the jury, the plaintiff in this suit shall have the affirmative thereof, and the defend- ant shall hold the relation of defendant thereto, and the trial i» This form is taken from Starke vs. Scott, 78 Va. 180, 183. 1376 EQUITY X'EOCEDUEE. thereof shall proceed in the manner provided for the trial of issues in actions at law.^" No. 335. §1155. Hearing cause on intervention and gamishment in at- tachment. (After title of the cause.) These causes by consent of parties came on this day to be heard together, upon the motion of T L D to abate the attachments sued out in the respective causes. On motion of W II C , leave is given him to file his petition in these causes, and the same is hereby accordingly filed in open court. And neither party requiring a jury, the two causes came on to be heard on this day of , 19 , on the motion of T L T) , one of the de- fendants, and a garnishee summoned in the cause, to abate each of said attachments on the grounds that said attachments were not made returnable as required by the statute, and that they were issued on false suggestions, and without probable cause, and on the petition of W H C , and on the answer of T L D , the garnishee, and on the depo- sitions taken by the parties respectively, and returned in the causes ; on consideration thereof the court, being of opinion that the partnership of C A W & Co., does not ap- pear to have any estate or debts due it in the County of Fred- erick, or to have had any such at the date of such attachments, i r any interest in, or claim upon, the property held by the B — — - W Company, at B , in said county, doth abate the at- tachments in each of said causes, and that said T L D recover from the complainants his costs, and that the Sheriff do restore the attached property to the B W Company. ^^ 20 See Code (W. Va.) 1899, Ch. Kern vs. Wyatt, 89 Va. 885, 17 S. 106, sec. 19. E. Rep. 549. 21 The above form is taken from FORMS — (.;kl)ees and deoeeks. 1377 .\o. 336. §1156. Of sale of personal property upon attachment and order of publication. (After the style of the cause.) This cause came on this day to be heard upon the order of publication duly executed as to the defendant who is a non- resident and has been regularly proceeded against as such ; upon the bill and its exhibits duly filed at rules, the decree nisi properly taken thereon and regularly set for hearing by the complainant ; upon the affidavit filed herein for an attachment ; upon the attachment issued herein, the levy thereof and return thereon made by the officer levying the same ; upon the deposi- tions filed in the cause taken on behalf of the plaintiff; and upon the argument of counsel ; upon consideration of all which the court is of opinion to and doth find that there is now due and owing from the defendant to the plaintiff on account of the debt in the bill and proceedings mentioned, including the interest thereon from this date,^^ after allowing all payments, credits, and sets-off to which the said defendant is in any wise entitled, the sum of dollars, and that the said plaintiff ought to recover from the said defendant the said sum of ■ dollars, with interest thereon from this date until paid ; but this being a proceeding by order of publication and attachment of the property of the said defendant found in this county, without any personal service on the said defendant, and the said defendant not having entered his appearance to this ac- tion, the court doth not enter any personal decree against the said defendant; but doth find and doth adjudge, order and de- cree that the property of the said defendant levied on by virtue of said attachment, is liable to the payment of the said sum of dollars, with interest thereon from this date until paid, and the costs of this suit and attachment issued therein ; and it further appearing to the satisfaction of the court that there was levied upon under and by virtue of the said order of at- tachment herein set out, the following* personal estate : (Here describe the same.), belonging to the said defendant, to satisfy 22Craniner vs. McSwords, 26 W. Va. 412. 1378 EQUITY PKOCEDUEE. the plaintiff's said debt and claim; and it appearing that the said property is still under the levy of the said attachment, and is liable to the payment of the said debt and claim of the plaintiff, it is therefore adjudged, ordered and decreed that said personal property be sold to pay the plaintiff's said debt and claim and interest thereon from this date, and the costs of this suit. And. it appearing to the satisfaction of the court that the plaintiff has given bond as provided by section 6 of chapter 106 of the Code of West Virginia,^^ it is ordered that the Sher- iff of this county do sell the said property levied on by the order of attachment as aforesaid, and now in his custody, for cash, after advertising the time, terms and place of such sale, as the law provides for the sale of personal property under execution. And out of the proceeds of such sale he shall pay off and discharge the plaintiff's debt and claim of dol- lars as aforesaid, with legal interest thereon until paid, and the costs of this suit, and the surplus thereof, if any, he shall pay over to the said defendant. ISTo. 337. §1157. Of sale of real estate upon attachment and order of pub- lication. (As in No. SS6 to the *, and then proceed as follows:) real estate: (Here describe the same), belonging to the said defendant, to satisfy the plaintiff's said debt and demand ; and it appearing to the satisfaction of the court that the property is still under the levy of the said attachment, and is liable to the payment of the said debt and claim of the plaintiff, it is therefore adjudged, ordered and decreed that the said prop- erty, or so much thereof as may be necessary, be sold to pay the plaintiff's said debt and interest thereon from this date, and the costs of this suit and attachment issued therein. 23 See Code (W. Va.) Ch. 106, sec. 6 aa to the requirements of this bond and its conditions. FORMS OEDEES AND DECEBES. 1379 And it is further adjudged, ordered and decreed that for the jpurpose of making such sale the court doth hereby appoint S L K a special commissioner, who shall adver- tise the time, terms and place of such sale for four successive weeks in the , a weekly newspaper published in this coun- ty, and which sale shall be made upon the following terms: (Here set forth the terms). But before said special commissioner shall make such sale he shall execute a bond with approved security before the Clerk of this court in the penalty of dollars, conditioned for the faithful performance of his duties as such special commis- sioner, and to account for and pay over all money which may come into his hands by virtue of such sale.^* And it is further adjudged, ordered and decreed that before said sale be made, the said plaintiff, or some one for him, shall give bond with sufficient security before the Clerk of this court in the penalty of dollars, conditioned that the plaintiff will perform such future order as may be made by the court in this suit in case the said defendant shall hereafter appear and make defense herein within the time prescribed by law; and the said S L K , special commissioner, as aforesaid, shall report to this court at the next term thereof, all real estate he may have sold under this decree, with the name of the purchaser, the sum for which it sold, and the time and place of such sale.^^ No. 338. §1158. The sale of real estate upon an attachment in a suit wherein the defendant has appeared. This cause came on this day to be heard upon the bill and its exhibits ; upon the answer of the defendant with general 24 The law does not fix the condi- 25 The law requiring the plain- tions of a bond of a special com- tiff to give the bond mentioned in missioner, and the order of his ap- the form given above will be found pointment, therefore, should pre- in the Code, Ch. 106, sec. 22. scribe the conditions thereof. 1380 EQUITY TKOCJiDUliJi. replication thereto ; upon the affidavit iiled herein for an at- tachment; upon the attachment issued herein, the levy thereof, and return thereon made by the officer levying the same ; upon the depositions for the plaintiff and defendant taken and filed in the cause ; and upon argument of counsel. -j- Upon consideration of all which the court is of opinion and doth so adjudge, order and decree that the plaintiff is entitled to the relief prayed for in his said hill. It is therefore adjudged, ordered and decreed that the defendant do pay to the plaintiff' the sum of dollars, the debt in the bill and proceedings mentioned and described vsdth legal interest thereon from this day, until paid, and also tlie costs of this suit and the costs at- tendant upon said attachment. And the court doth find, and so adjudge, order and decree, that the property of the said defendant levied on by virtue of the said attachment issued in this cause is liable to the pay- ment of the said sum of dollars with interest thereon from this date until paid, and the costs of this suit ; and it further aj)pearing to the satisfaction of the court* that no per- sonal property was levied on in this cause, but that the following real estate was levied on by virtue of said attachment : (Here de- scribe the same) , belonging to the said defendant to satisfy the plaintiff's said debt, and it appearing that the said real estate is still under the levy of said attachment, and is liable to the payment of said debt of the said plaintiff, it is therefore ad- judged, ordered and decreed, that unless the said defendant shall pay to the said plaintiff the said debt of dollars aforesaid, interest thereon and costs of suit, and of said attach- ment within days from the rising of this court, that the said property, or so much thereof as may be necessary, be sold to pay the plaintiff's said debt, and interest thereon from this date, and the costs aforesaid. And for the purpose of making such sale the court doth hereby appoint J R L a special commissioner, who shall advertise the time, place and terms of such sale for four successive weeks in the (Here give the name of the newspaper), a newspaper published in this county, and which sale shall be made upon the following terms: (Here set forth FOEMS OETJKBS AND DKCEEBS. <• 13S1 the terms). But before said special commissioner shall make such sale he shall execute a bond with approved security be- fore the Clerk of this court in the penalty of — — dollars, con- ditioned for the faithful performance of his duties as such S2>ecial commissioner, and to account for and pay over all money which may come into his hands by virtue of such sale ; and the said J L K , special commissioner as aforesaid, shall report to this court at its next term the real estate he may sell under this order, with the name of the pur- chaser, the sum for which it sold, and the time and place of such sale. All of which is adjudged, ordered and decreed accordingly.^* No. 339. §1159. For sale of personal estate upon attachment in a suit to which the defendant has appeared. (As in No. 338 to the ^, then proceed as follows:) that the following personal estate: (Here describe the same), belonging to the said defendant, was levied on by virtue of said attach- ment, to satisfy the plaintiff's said debt and demand; and it appearing that the said property is still under the levy of the said attachment, and is liable to the payment of the said debt, and claim of the plaintiff, it is therefore adjudged, or- dered and decreed that the officer do sell the said property levied on by him as aforesaid, or so much thereof as may be necessary to pay off said debt, interest thereon and costs, at public auction to the highest bidder for cash, after having given notice thereof as if a sale to be made under an execution, and shall apply the proceeds thereof to the payment of the said debt, interest and costs, and the surplus, if any, he shall pay over to the said defendant. All of which is adjudged, ordered and decreed accordingly. 2n See Code (W. Va.) Ch. 106, appear tliat the above form meets sees. 20, 21, from which it will its requirements. 1382 EQUITY PROCEDURE. No. 340. §1160. For the sale of property under attachment that is per- ishable or expensive to keep. (After the style of the suit.) This day the plaintiff, A B , filed his affidavit in the above entitled cause wherefrom it appears that the fol- lowing property levied upon, seized and attached by J C D , Sheriff of this county, under and by virtue of an order of attachment issued in this cause, to-wit : (Here de- scribe the property)^ is of a perishable nature (or is expensive to keep) ; it is therefore ordered that the said J ■ C D , Sheriff of said county, do sell the said property at pub- lic .auction at such time and place as he shall deem advisable, and that such Sheriff give notice of such sale as if a sale of per- sonal property under an execution, and that the sale thereof be made in like manner. It is further ordered that the proceeds of such sale be retained by such officer, and disposed of in the same manner as the property itself, had the same not been sold." I'J'o. 341. §1161. Confirming sale under an attachment. (After the style of the cause.) This cause came on this day to be further heard upon the former orders and decrees made therein ; upon the former pro- ceedings had therein ; upon the report of sale of Special Com- missioner J C L , heretofore appointed to make sale of the real estate under the order of attachment issued herein and levied thereon, and which report is now filed in this cause. And there being no exceptions to said report, and the -■f This form is adapted from the Code (W. Va.) Ch. 106, sec. 13; Code (Va.) 1S87, see. 2975. FOEMS OEUEKS AND DECREES. 1383 court perceiving no just ground of exception thereto, and no good cause being shown for setting the sale aside reported therein, it is therefore adjudged, ordered and decreed that said report and the sale therein mentioned be and the same are hereby ratified and confirmed. And it appearing from said report that G H — — be- came the purchaser of Said real estate sold by said special commissioner under said attachment, that said G H — ■ — has complied with the terms of the decree directing said sale by paying dollars in cash, one-third of the purchase money, and has executed his two notes, each in the sum of dollars, with E, as his security, payable in one and two years, respectively, with interest, for the residue of the purchase money, it is adjudged ordered and decreed that out of the proceeds of said payment that said special commissioner do first pay the costs of this suit, including the costs of said sale, as well also as the costs of suing out the attachment here- in and all the proceedings therewith connected, and that the residue thereof, as well as the proceeds of said notes be ap- plied to the payment of plaintiff's debt as determined 'by a for- mer decree herein, and that said special commissioner be and he is hereby authorized to do whatever may be necessary to collect said notes, even to the bringing of suit for that pur- pose. It is further adjudged, ordered and decreed that when said deferred installments of purchase money are fully paid, that said J C L do make, execute, acknowledge and deliver for record an apt and sufficient deed with cove- nants of special warranty, conveying the title to said real es- tate to said G H , for which the said J C L shall be allowed the sum of dollars, to be taxed as a part of the costs of this suit. And it is ordered that a writ of possession do issue for said real estate upon the motion of said G H . All of which is adjudged, ordered and decreed accordingly.^' 28 See Code (W. Va.) Ch. 106, sec. 21, from the provisions of which the above form is constructed. 1384 EQUIT*!' PROCEDURE. ISfo. 342. §1162. Annulling marriage. (After the style of the cause as indicated in No. SIS to the *.) This cause came on this day to be heard upon the plaintiff's bill and its exhibits; upon the defendant's answer to said bill with general replication thereto; upon the depositions on be- half of the plaintiff and defendant taken and filed in the cause, and was argued by counsel. Upon consideration of which the court is of opinion that the plaintiff is entitled to the relief prayed for in his said bill.* It is therefore adjudged, ordered and decreed that the marriage heretofore celebrated betweeh the said A B and C B be, and the same is hereby declared to be null and void and of no effect whatever, and the same shall be taken, treated and held as if it had never been entered into between the said parties.^" ]STo. 343. §1163. Tendering answer and asking leave to file the same. (Afte'r the style of the cause.) This day the defendant, C D , tendered his sepa- rate answer to the plaintiff's bill and asked leave to file the same, which is hereby accordingly done.^° ISTo. 344. §1164. Filing answer and noting exceptions thereto. (After the style of the cause.) This day the defendant, C D , filed his answer to the plaintiff's bill. Whereupon the plaintiff excepted to the 2» See Wayniire vs. Jetmore, 22 Still it is matter of common prac- Ohio St. 271. tice to tender an answer, and ask 30 Inasmuch as a defendant may permission of the court to file the file an answer as matter of right, same. Hence, the reason for the the above form seems unnecessary. preparation of the above fornr. FOKMS — OKBBBS AND DECBEBS. 1385 said answer, filing his exceptions thereto in writing, which are endorsed on the said answer (or which exceptions are written on a separate paper, marked " Exceptions of A B to the answer of C D ") and which exceptions are here set down for argument.^^ No. 345. §1165. Referring^ answer to a commissioner to expunge scanda- lous matter. (After the style of the cause.) The coiirt doth hereby refer the answer filed herein by the defendant, R B — ^ — , to the plaintiff's bill, to G H , one of the eomraissioners of this court, for the pur- pose of expunging the impertinent or scandalous matter there- in contained, and doth order that the said defendant do pay the costs of executing this order. And the said commissioner is hereby directed to forthwith report to the court such mat- ters contained in the said answer as shall be deemed by him impertinent and scandalous.^^ No. 346. §1166. Adjudging answer insufficient and directing further an- swer to be filed. (After the style of the cause.) The exceptions to the answer of C D filed in this cause being' argued and considered by the court, said exceptions are hereby sustained, and the said answer is hereby adjudged insufiicient. It is therefore ordered that the defendant answer the plaintiff's bill more fully and sufficiently ; and that he pay the plaintiff his costs occasioned by such insufficient answer.^^ 31 See ante, see. 414. ''^ See Sands' Suit in Eq. (2nd S2 Sands' Suit in Equity (2nd ed.) ed.) 596. from which this form is substan- tially taken. 1386 EQUITY PEOCEDUEB. No. 347. §1167. Filing answer and general replication thereto. (After the style of the suit.) This day the defendaiit filed his answer to the plaintiff's bill to which the plaintiff replied generally.'* No. 348. §1168. Granting permission to guardian to submit to arbitration a matter relating to his ward's estate. This day A^— B- as guardian of C- D- , an infant under twenty-one years of age, presented to the court his petition praying that he be permitted to submit to arbitra- tion the matters in controversy in said petition mentioned and described touching the estate of his said ward. And the facts upon which the said petitioner seeks the permission of the court to submit such matters to arbitration, being stated in said petition, and it appearing to the court that said petition is filed in good faith, it is hereby ordered that said petitioner be and he is hereby permitted to submit said matters to arbitration.''^ JSTo. 349. §1169. Submitting cause to arbitration and making the same a rule of court. A B- In Chancery. C- vs. -D- 34 This is the proper way in which to bring the answer into the record of the cause. If upon being filed it is regarded as insuflBcient or otherwise objectionable, the proper course is to except to it, but if it be not objectionable it should be replied to. However, if the answer is entirely insufficiant objection to its being filed might, perhaps, be made and the same object attained as if the answer were formally ex- cepted to. S5 This form is adapted for use under the Statute of West Virginia, Code, Ch. 108, sec. 5, and Code (Va.) sec. 3010. FOKMS OEDEES AISTD DECEEES. 1387 Upon motion of the parties to this suit by their counsel, and upon reading the articles of agreement signed by the said par- ties, stipulating for a submission of said cause to arbitration, and having inspected the affidavits of and , filed herein, proving the due execution of the said articles of agree- ment and submission ; and upon hearing counsel for the respec- tive parties and reading the said affidavits filed herein, it is adjudged ordered and decreed that the said agreement stipu- lating for the submission of said cause to arbitration be filed herein and made part of the record in this cause ; that the same be made a rule of court, to be observed and performed by all the parties thereto, according to the tenor and true meaning thereof.^' JSTo. 350. §1170. Filing award of arbitrators, making allowances to them and directing summons to show cause against said re- port. (After style of cause.) This day came the parties to this cause by their respective counsel and presented to the court the award made by the ar- bitrators (Here name said arbitrators), selected by said parties under an order heretofore entered in said cause submitting the same to arbitration, and asked leave to file said award, which is accordingly done. And thereupon the arbitrators filed their affidavits in this cause, from which it appears that a reasonable compensation to each of said arbitrators for their services while acting as such arbitrators would be the sum of dollars ; it is therefore ordered that each of said arbitrators be, and he is, hereby allowed the sxua of dollars for his said serv- ices, to be taxed as part of the costs of this suit. It is further ordered that the clerk of this court do issue a summons to be served on all the parties to this suit, returnable 38 Seton on Decrees, 210. 1388 EQUITY PROCEDUBE. here on the first day of the next term of this court to show cause, if any they can, why the said award should not be en- tered up as the decree of this court in this cause. All of which is adjudged, ordered and decreed accordingly/' No. 351. §1171. Entering up award as the decree of the court. (After the style of the suit.) This day came the parties to this suit by their respective counsel, and it appearing to the court that the summons to show cause why the award made herein should not be entered as the decree of the court, heretofore directed, was issued and properly served, which with its return is now filed in the papers of this cause ; and this cause now coming on to be heard upon the bill and its exhibits ; upon the former orders and decrees made and entered herein ; upon the said award, and the said summons duly issued and served ; and was argued by counsel. And it appearing from said award that the defendant, C — ■ — D is required to pay to the plaintiff, A B , the sum of dollars, it is therefore adjudged, ordered and de- creed that the said A B do recover of and from the defendant, C ■ D , the sum of dollars, with in- terest thereon from this date until paid and the costs of this suit, including the costs of the arbitration made in this cause.'* Xo. 352. §1172. Of attachment for contempt of court. The State of West Virginia, at the relation of A B — vs. D O Tv- Upon attachment. 3' This form is founded upon the as See Davis vs. Crews, 1 Gratl. provisions of statute, Code (W. 407 ; also Winch and Hinman, Order Va.) Ch. 108, sec. 3, Code (Va.) sec. Bk. Ent. 197 ct seq. 3008. FOKMS ORDERS AND DKC'REES. 1389 The said defendant, D O K , not showing nor asking to be allowed to show any further or other cause why ho should not be attached or otherwise proceeded against for his failure to comply with the order of this court made on the — — day of , 19 , and with the order of the Circuit Court of O County, mentioned in said rule, it is ordered that the Sheriff of said county do attach the body of the said D ■ K , and keep him in safe custody in the jail of County aforesaid until the further order of this court, (or for the continuous period of days, beginning with this day or until the further order of this court j.^" No. 353. §1173. Finding against intervener in an attachment suit. (After the title of the cause.) This cause came on this day to be heard upon the former or- ders and decrees made and entered herein ; upon the former proceedings had in this cause ; upon the verdict of the jury heretofore entered in this cause; upon the motion of C M J , the intervener herein to set aside said verdict and award him a new trial ; upon the bills of exceptions taken to the rulings and opinions of the court made and rendered upon the trial before the jury of the issue heretofore directed 39 A contempt of court is in the the proceedings in the name of the nature of a criminal offense, and State, and make it a separate and the proceeding for its punishment, distinct proceeding from the chan- is in its character a, criminal pro- eery cause, and enter a separate or- ceeding. Before the attachment for der in relation thereto; and the the contempt issues the proceedings order should not be entered on the are to be entitled in the names of chancery side of the court, but on the parties to the suit, but after- the law side thereof. Hence, the wards in the name of the State. form above given, though in a Buhl vs. Ruhl, 24 W. Va. 281, 283. chancery suit, must be entered on After the return of a rule to the law side of the court. Ruhl va. show cause why a party should not Ruhl, supra. "be attached the court should entitle See ante, sec. 723, 724, note 147. 1390 EQUITY PEOCEDUKE. and tried in this cause ;*" upon all the papers heretofore filed and read therein ; and upon the argument of counsel. And it appearing from the said verdict rendered by the jury impan- neled in this cause, that the claim of the said petitioner is not sustained, it is therefore adjudged, ordered and decreed that the said peitioner, C M J , hath no title to, lien upon, or interest in, the funds, debts, and effects attached in this cause; and it is further adjudged, ordered and decreed that the petition of the said C — - — ■ M J be, and the same is, hereby dismissed at the costs of the said petitioner. No. 354. §1174. For sale of property attached when debt is not due. (After the style of the suit, and then as in No. 338 to the f, and then proceed as follows:) And the court doth find and so adjudge, order and decree, that the property of the said defend- ant levied on by virtue of said attachment issued in this cause is liable to the payment of the plaintiff's debt in the bill and proceedings in this cause mentioned and described, and the costs of tliis suit ; and it further appearing to the court that this suit was brought upon a debt not due and payable until the day of , 19 — — , at which time the said debt, with its then accumulated interest, will amount to the sum of dollars, it is therefore adjudged, ordered and decreed that said plaintiff, A B , do recover of and from the said de- fendant, C D , the said sum of dollars, not to be paid, however, until the said • — — day of , 19 , and from which time the same shall draw legal interest until paid ; and it is further adjudged, ordered and decreed that said plain- tiff do recover his costs in and about the prosecution of his suit, and of said attachment and proceedings thereon, in this behalf expended and incurred. And it is further adjudged, ordered and decreed that the *o See .Joslyn vs. State Bank, 86 Va. 287, 10 S. E. Rep. 166. FOEMS OKDBKS AND DECREES. 1391 said C D do pay the costs of this suit to be taxed by the clerk of this court, within days from the rising of this court; and it is further adjudged, ordered and decreed that the said C — — D do pay the said sum of dol- lars with the interest thereon accrued on the day of , 1 9 , the time when the same shall be due and payable ; and in default of the payment of the said costs and the said debt at the respective times herein provided, that then sale be made of the property attached, and fully described in the officer's return upon the order of attachment issued herein, and if sale be made in order to pay off and discharge the costs of this suit, that said sale be made for cash as to so much of the purchase money as may be necessary to pay the costs, as well as the costs incident to such sale ; and that as to the residue that the same be on a credit as to one-half of said residue correspond- ing with the time said debt shall have to run until it becomes due and payable; that is, on a credit extending to the day of — — , 19 , and as to the residue of said purchase money, the same shall be on a credit of from the time of sale, the purchaser giving his notes bearing interest from the time of sale, with sufficient surety, and the said special commissioner hereinafter appointed shall retain the legal title as a further security ; but if the said C D shall pay off and discharge the costs of this suit, that the said special commissioner is hereby directed to make no sale of said real estate until after the said day of , 19 , the time when the said debt shall become due and payable ; and if, when the same shall become due and payable, the said C D shall not pay the same within days thereafter, then said special commissioner shall sell the said property, or so much thereof as may be necessary, to pay off and discharge said debt and the costs of sale upon the following terms : (Here prescribe the terms) ; but before making such sale, said commissioner shall advertise the time, terms and place thereof in (Here pre- scribe the manner and time of notice and -place of sale, and conr tinue in the usual manner of any ordinary decree of sale). 1392 EQUITY PKOCEDUEE. No. 355. §1175. Against garnishee in an attachment suit. (After the style of the cause.) This cause came on this day to be heard upon the order of publication duly executed as to the principal defendant, C D — ■ — , a non-resident of this State; iipon the order of attach- ment duly issued herein against the property of said defend- ant, and the proceedings thereon by way of garnishment against the defendant E F ; upon the separate answer of the said E F — - — ■ and general replication to said answer ; upon the depositions on behalf of the plaintiff taken and filed in the cause; and the said defendant C D — — , not further ap- pearing, the court having considered the plaintiff's bill and the proof taken in support thereof, as well also as the matters con- tained in said answer, doth ascertain that there is due and owing to the plaintiff from the defendant C D on the demand sued on in this cause, including interest thereon to date, the sum of dollars, for the payment of which the attachment sued out in this cause creates a valid and bind- ing lien upon the estate of the said C D in the hands of the said E F . And it appearing from the answer of the said E F that at the time the said attachment was issued in this case and the suggestion made thereon was served upon the said E F , that the said E F was indebted to the said C D in an amount sufficient to pay the said sum of dollars, with legal interest thereon until paid and the costs of this suit; it is therefore adjudged, ordered and decreed that said E F do pay unto said A — ■ — B — ■ — • the said sum of dollars, with interest thereon from this date till paid, and the costs of this suit, including the costs of said at- tachment and suggestion thereon ; and when the same shall have been paid by the said E — — ■ F — ■ — ■ it shall constitute a credit to that extent upon the indebtedness of said E ■ F to said C D , and be taken, treated and applied as a payment of that sum by the said E F upon his indebtedness to FORMS OEDEES AND DECKEES. 1393 the said C D ; and when the said sum of dollars shall be so paid, the same shall operate as a payment or extin- guishment of the said debt of — — - dollars due and owing from the said C D to the said A B . All of which is adjudged, ordered and decreed accordingly.*^ No. 356. §1176. Ovemiling defendant's exceptions to an attachment bond. (After the style of the suit.) The exceptions filed by the defendant to the attachment bond given in this cause, having been argued by counsel and con- sidered by the court, said exceptions are hereby overruled, and said bond adjudged to be sufficient.*^ No. 357. §1177. Sustaining defendant's exception to an attachment bond. (After the title to the cause.) Upon motion of the defendant the exceptions taken to the attachment bond, given by the plaintiff in this cause are hereby set down for argument. And the matters of law arising upon the said exceptions being argued by counsel and considered by the court, the court is opinion to and doth hereby sustain said exceptions. It is therefore adjudged, ordered and decreed that the said bond be and the same is hereby adjudged insufficient, and the said plaintiff is hereby required to give a new and suffi- cient bond on or before the day of — — , 19 — , to be ap- proved by the court, and upon the plaintiff's failure so to do, the officer having in his custody the property herein attached shall return the same to the possession of the defendant.*' *i See ante, sec. 808. use in cases arising under the Code 42 See Code (W. Va.) CTi. 106, (W. Va.) Ch. 106, sec. 6; likewise see. 6. form No. 356. «3 The above form is adapted for 1391 EQUITY PKOCEDUEE. No. 358. §1178. Dismissing bill without prejudice. (After style of cause.) This cause came on this day to be heard upon the plaintiff's hill and exhibits; upon the defendant's demurrer filed thereto; and upon the argument of counsel. Upon consideration of which the court is of opinion to and doth hereby sustain said demurrer, the court being further of opinion that the bill pre- sents a case of which a court of equity cannot take cognizance, but that the same is proper for the jurisdiction of a co;irt of law. It is therefore adjudged, ordered and decreed that the plain- tiff's bill be, and the same is hereby dismissed, but without prejudice to his right .to bring an action at law upon the demand herein sued on if he shall so desire. It is also ordered that the plaintiff do pay unto the defendant his costs about his defense in this behalf expended.^* No. 359. §1179. Sustaining exceptions to forthcoming bond in attach- ment suit and requiring officer to obtain a good bond. (After the style of the suit.) Upon motion of the plaintiff, the exceptions heretofore en- dorsed to the replevy bond taken by the officer levying the at- tachment sued out in this cause are hereby set down for argu- ment. And the said exceptions being argued and considered by the court, are hereby sustained and the said bond adjudged to be insufScient. It is therefore adjudged, ordered and decreed that the said officer, J. M. C, Sheriff of this county be and he is hereby required on or before the day of , 19 , ••4 When a suit in equity is dis- to the plaintiff's right to bring missed without a hearing upon the another suit for the same cause, merits presented by the bill, the dis- Ante, sec. 376. missal should be without prejudice FOEMS OEDEES ANll T>EOREES. 1395 to file in the papers of this cause a good bond, with sufiicient security to be approved by the court ; and upon tlie failure of such officer so to do, the sureties upon his official bond shall be liable to the plaintiff as and for a breach of the same, should the said plaintiff sustain any loss or damage in consequence of the insufficiency of said replevy bond taken by the said officer levying the attachment sued out herein.*^ No. 360. §1180. Cancelling an instniment as a cloud upon title to real estate. (After the style of the suit and proper recitals as the pa- pers and proceedings in the cause may require, proceed as fol- lows:) Upon consideration of which the court is of opinion that the plaintiff is entitled to the relief prayed for in his said bill. It is therefore adjudged, ordered and decreed that the deed of conveyance (or whatever the instrument may he) from the defendants D — — F — ■ — and C F to the defendant J — — K -, bearing date on the ■ day of , 19 — , of the tract or parcel of land in the bill and proceedings' in thia cause mentioned and described, and recorded in the Clerk's office of the County Court of County, and State of , in Deed Book I^o. , p. , be and the same is hereby set aside and declared to be null and void, as against tJhie com- plainant.*" (Conclude hy decreeing costs against defendants.) No. 361. §1181. Cancellation or rescission of an instniment on the ground of fraud. (After the style of the cause and recital as indicated in No. 318 to the *.; Upon consideration of all which the court is of opinion, and *•' The above form is adapted for *« See ante, see. 592 ; Puter- use under the Statutes of W. Va., baugh's Ch. PI. and Pr. (3rd ed.) Code Ch. 186, sec. 11, and Code 664. (Va.) 1887, sec. 2973. 1396 EQUITY PEOCEDUEE. doth, so adjudge, order and decree, that the contract (or note, deed or whatever the writing may he), in the bill and proceed- ings mentioned and described, bearing date on the — — day of , 19 , signed by (Here name the party or paHies) was obtained and procured to be made by misrepresentation and fraud, and ought to be cancelled and rescinded ; and it further appearing to the court that the plaintiff A B has paid into this court the sum of dollars, the amount re- ceived by said A B under said contract, and which is now in the hands of the general receiver of this court as the money and property of the defendant C T) , and which the said receiver is ready to pay over to the said C D ; It is therefore adjudged, ordered and decreed that the said contract bearing date and signed as aforesaid be and the same is hereby cancelled and rescinded and held for naught, and to have no more force or effect than if the same had never been entered into by the said parties who signed the same. And it is further adjudged, ordered and decreed that L K , the general receiver of this court, do at once, pay unto said defend- ant, C D , the said sum of dollars. f And it is further adjudged, ordered and decreed that the said C — ■ — ■ D do pay unto said A B — — , his costs in and aboiit the prosecution of his suit in this behalf expended, which shall include a statute fee of dollars.*^ No. 362. §1182. Cancellation or rescission of an instrument on the ground of infancy. (After the style of the cause, and recital as indicated in No. 318 to the *.) Upon consideration of all which the court is of opinion and doth so adjudge, order and decree, that the deed (or other in- *7 See Winch and Hinman, 0. B. Ent. lOn. FOEMS OEDEES AND DECEEES. 1397 strument as the case may he) in the bill and proceedings men- tioned and described, bearing date on the day of , 19 , executed by the plaintiff A B , to the de- fendant C D — — , conveying the real es^tate therein de- scribed, signed by said A — — B to said C — — D , was made and delivered by said A — ■ — B to said C D while the said A B was an infant under the age of twenty-one years ; and it further appearing to the court that said A B received as the consideration of said deed the sum of dollars, but which he has expended, so that nothing thereof now remains in the possession or own- ership of the said A B , it is therefore adjudged, ordered and decreed tliat the said deed bearing date on the day of , 19 , executed by said A B-; to said C D ; conveying to him, the said C — - — D , acres of land, be and the same is hereby cancelled and an- nulled, and to be taken and treated as if the said deed had not been executed. And as a further assurance of title to the said land in said deed described, and to remove the cloud created upon such title by said deed, it is further adjudged, ordered and de- creed that said C^ D do execute, acknowledge and de- liver for record a quit-claim deed to said land in said deed de- scribed within days from the adjournment of this court, and in default thereof, that such quit-claim deed be executed, ac- knowledged and delivered for record by E F , who is hereby appointed a special commissioner for that purpose, and hereby duly authorized and empowered thereunto, for which the said E F shall be allowed the sum of dollars to be taxed as a part of the costs of this suit. (Conclude as in No. 361 from the ].)*^ 48 See extended note to sec. 907 ' tion with the doctrine found in sec. where the law authorizing the above 53. (See Decrees.) form will be found, read in connec- 1398 EQUITY PEOCEDUKE. No. 363. §1183. Cancellation or rescission of a writing because of the plaintiff's insanity. (After the style of the suit and proper recitals, proceed as follows:) And it appearing to the court, that at the time the contract in the bill and proceedings in this cause mentioned and de- scribed, between the plaintiff A B^ — and the defendant C D -, bearing date on the day of , 19 , was executed, that the said plaintiff was insane and therefore incapable of entering into such contract, it is therefore adjudged, ordered and decreed that such contract between the said A B ' and C D — — ; bearing date as afore- said, be and the same is hereby set aside and declared to be null and void, and the said C — — D is hereby directed and required to deliver up said contract to the Clerk of the court to be by him cancelled. And it is further adjudged, ordered and decreed that the said defendant do pay unto the said plaintiff his costs by him about the prosecution of his suit in this behalf expended and incurred.*" No. 364- §1184. Authorizing sale of church property. Ex parte, A B , C-— D , E F , G H and I J — ■ — , the Board of Trustees of the P Church of , in the County of , and State of . This cause came on this day to be heard upon the petition heretofore filed in this court, of the said A B — — , C D , E F , G IT and I J , con- stituting and composing the Board of Trustees of the P 49 This form is based upon the 15 S. E. Rep. 146; Hogg's Eq. doctrine and principles announced Prinep., sec. 55. in Hiett vs. Shull, 36 W. Va., 563, FOEMS OEDEES AND DEGEEES. 1399 Church of , in the County of , and State of ; upon an order of publication stating the filing of such petition and the object thereof, duly posted on the front door of the court house of this county, and at a conspicuous place on the premises described in said petition ; upon such order of publi- cation duly published in , a newspaper published in said county, for the period of , as heretofore by order of this court directed ; upon the proof taken herein showing among other things, that a majority of the members of said church de- sire a sale of said property in said petition mentioned and de- scribed ; and upon argument of counsel herein. And it appearing to the court that the said petitioners have sho^vTL a case wherein a sale of real estate is proper, and the court being of opinion that the rights of others will not be vio- lated by a sale of said property; it is therefore adjudged, or- dered and decreed that said petitioners be and they are hereby authorized and empowered to make sale of the real estate in the said petition mentioned and described, either at public or private sale, whichever in the opinion of said petitioners will best promote the interests of those concerned, and upon the fol- lowing terms : One-third of the purchase money cash in hand and the residue upon a credit of one and two years respective- ly, the purchaser giving bond with good security for the de- ferred installments of purchase money. And if the sale be at public auction, the same shall only be made after publication of notice thereof for four successive weeks in some newspaper pub- lished in the county, of the time, terms and place thereof. But before said commissioners shall make sale of said land they shall enter into bond before the Clerk of this court with approved security in the penalty of dollars, conditioned for the faithful discharge of their duties in the premises, and to account for and invest the proceeds derived from such sale as the court shall hereafter determine, and what said petitioners shall do under this decree t\ej shall report to a future term of this court."" 50 This form is designed for vise under the Statute of West Virginia, Code Ch. 57, sec. 9. 1400 EQUITY PEOCEDUEE. ) No. 364a. §1184a. Overruling demurrer to bill and giving rule to answer. (After the style of the cause.) This day the defendant filed a demurrer to the plaintiff's bill, which demurrer is set down for argument; and the matters of law arising thereon being argued by counsel and considered by the court, said demurrer is hereby* overruled. And there upon a rule is hereby given the defendant to answer said bill on or before the • — — day of , 19 .^^ No. 364&. § 1184b. Sustaining demurrer to bill and remanding cause to rules with leave to amend. (After the style of the cause as in No. 36Ji.a, and to the *.) sustained, and said bill adjudged not to be sufficient in law. Upon motion of the plaintiff this cause is remanded to rules with leave to make any and all proper and germane amendments to said bill, but at the costs of the said plaintiff, and to be taxed accordingly by the Clerk of this court.^^ No. 365. §1185. Suggesting non-residence of plaintiff and demanding se- curity for costs. (After the style of the cause.) This day the defendant suggested the non-residence of the plaintiff and demanded security for costs."^^ "See ante, sec. 314. 63 See Code (W. Va.), Cli. 138, 02 See ante, see. 314. sec. 2. FORMS OEDERS AND DECEEES. 1401 No. 366. §1186. Of divorce a mensa et thoro, where the defendant has not appeared. (After the style of the suit.) This cause came on this day to be heard upon the process duly executed upon the defendant ; upon the plaintiff's bill witli its exhibits regularly filed at rules; the decree nisi properly entered thereon, and the cause regularly set for hearing by the complainant; upon the depositions on behalf of the plain- tiff taken upon due notice and filed herein ; and upon the argu- ment of counsel on the part of the plaintiff.* Upon consideration of all which the court is of opinion that the plaintiff is entitled to the relief prayed for in his (or her) said bill. It is therefore adjudged, ordered and decreed that the plaintiff, A — — B and the defendant, C D , be and they are hereby divorced from each other from bed and board. It is further adjudged, ordered and decreed that the said A B — — do pay the costs of this suit, but without the taxation of any statute fee herein. No. 367. §1187. Of divorce a mensa et thoro for alimony, where the de- fendant has appeared. (After the style of the suit.) This cause came on this day to be heard upon the plaintiff's bill and its exhibits ; upon the answer of the defendant thereto and general replication to said answer ; upon the depositions on behalf of the plaintiff and defendant taken and filed in the cause; and upon the argument of counsel on the part of the plaintiff and defendant.* Upon consideration of all which the court is of opinion that the plaintiff A B is entitled to the relief prayed for in her said bill. It is therefore ad- judged, ordered and decreed that the said plaintiff and said 1402 EQUITY PKOCBDUEE. defendant be and they are hereby divorced from each other from bed and board. And it is further adjudged, ordered and decreed that the said C B do pay unto the said A B as ali- mony until the further order of this court, or until they, tlie said plaintiff and defendant, shall be reconciled to, or shall co-habit with, each other again as husband and wife, for the support and maintenance of tlie said A B , the an- nual sum of dollars, payable in quarterly installments of - — - — ■ dollars each, on or before the 1st days of April, July, and October, and the 31st day of December, in each year, the payment of said inatallments to commence on the 1st day of , in the year 19 , and to continue thereafter during the period hereinbefore designated. (Conclude by decreeing costs against the defendant, as indi- cated in No. 361 from the f./* No. 368. §1188. Of divorce a vinculo matrimonii and awarding custody of children. (After style of suit and proper recitals, as indicated in Nos. 366, 367 to the *, as the case may require.) Upon consideration of which the court is of opinion that the plaintiff is entitled to the relief prayed for in his said bill. It is therefore adjudged, ordered and decreed that the mar- riage heretofore celebrated between the plaintiff A B and the defendant C B , be and the same is hereby dis- solved, and that the said A B and C B be and they are hereby divorced from each other from the bonds of matrimony.* And it appearing to the court that there is issue of said mar- riage two children, to-wit: James, aged nine years, and Jane, aged seven years, and it further appearing that their father, said A B , is a suitable and proper person to have the B* See ante, sec. 896, note, and sec. 43. ( See Decree. ) FORMS OEDEES AND UJiCKKKS. 1403 care and custody of said children, it is therefore adjudged, or- dered and decreed, that the care and custody of said James B and said Jane B , children of the said A B and C B — — , be and the same are hereby awarded to the said A B . And it is further adjudged, ordered and decreed that the said A — B — — ■ do pay the costs of this suit, but the Clerk will tax no statute fee therein.'*'* No. 369. §1189. Of divorce a vinculo matrimonii and for alimony. (After the style of the suit and proper recitals, as indicated in Nos. 366, 367, as the case may require, and then as in No. 368 to the *.) And the court having examined the pleadings and evidence in this cause, and having duly considered the same, the court is of opinion that, the plaintiff is entitled to alimony, and that the annual sum of dollars would, under the circumstances of this case, be a reasonable amount for the support and mainte- nance of the said A B . It is therefore adjudged, order- ed and decreed that the said C B ■ do pay unto the said A B , as alimony during the joint lives of the said A — — B and C B , for the support and mainte- nance of the said A B , the said annual sum of dollars, payable in installments of dollars each on the Ist days of January and July in each year during the period of the joint lives of said A B — — and C B ; the pay- ment of said installments to co^mmence on the day of , 19 — — , and to continue during the period above prescribed, f (Conclude as in No. 361 from the *./" 65 See 7 Enc. Forms, 66 et seq. : se See references under sees. 1187, Sands' Suit in Bq., 584, 585. 1188. ' 1404 EQUITY PEOUEBUEE. No. 370. §1190. Of divorce a vinculo matrimonii after a former divorce a mensa et thoro. (After the style of the suit.) This cause came on this day to be heard upon the papers for- merly read, and the proceedings had therein, this cause having been re-instated on the docket on motion of the plaintiff, and was argued by counsel. On consideration of which, it appear- ing to the court, as established by the decree heretofore rendered in this cause, that the defendant had abandoned the said plain- tiff, and two years having elapsed since the institution of this suit, and it appearing from satisfactory evidence taken and filed herein, that the said parties have not been reconciled to each other since the rendition of the former decree herein, it is ad- judged, ordered and decreed, that the bonds of matrimony here- tofore celebrated and existing between the plaintiff A B and the defendant C B be and they are hereby dissolved, and the said parties are forever divorced from each other." ISTo. 371. §1191. Of divorce granted on answer in nature of cross-bill set- ting up claim to af&rmative relief. (After style of suit.) This cause came on this day to be heard upon the plaintiff's bill and its exhibits ; upon the answer of the defendant to the plaintiff's bill and also in the nature of a cross-bill setting up a claim to affirmative relief; upon general replication to r)' The foregoing form is taken used without change in the State from Sands' Suit in Equity (2nd of Virginia; likewise the above pd.) 585, with such changes as to form, by changing the time that has adapt it to the Statute of West elapsed as mentioned in the above Virginia, Code, Ch. 64, sec 13. The form from two to five years. iij'-m as found in Sands may be FOEMS OEDEES AND DECEBES. 1405 said answer, and the plaintiff's special reply in writing to so much of said answer as is in the nature of a cross-bill setting up a claim to affirmative relief; upon the depositions on be- half of the plaintiff and defendant taken and filed in the cause ; and upon the argument of counsel. Upon consideration of all which the court is of opinion that the plaintiff is not entitled' to the relief prayed for in her said bill, and that the same should be dismissed. It is therefore adjudged, ordered and decreed that the plaintiff's bill be and the same is hereby dismissed. *But it does appear to the court; that the defendant is entitled to affirmative relief against the plaintiff as prayed for in his said answer. It is, therefore, adjudged, ordered and decreed that upon the case made by the said defendant against the said plaintiff upon the said an- swer in the nature of a cross-bill setting up a claim to affirma- tive relief, that the marriage heretofore celebrated between the said defendant, C B , and, the said plaintiff, A B , be and the same is hereby dissolved, and the said A B and C B are hereby divorced from the bonds of matrimony heretofore existing between them. And the court being of opinion that under all the circum- stances of this case the defendant ought to recover his costs, it is therefore adjudged, ordered and decreed that A B do pay unto the said C B his costs aboiit his defense in this behalf expended, as well also as his costs about the prose- cution of his case made in his answer in the nature of a cross- bill setting up a claim to affirmative relief, including a statute fee of dollars."' :N"o. 372. §1192. Refusing a divorce to the plaintiff, and to the defendant on an answer in the nature of a cross-bill. (After style of suit and as in No. 371 to the *, and then continue as follows:) And the court is of opinion that the der 58 See 7 Enc. Forms, 76. 1406 EQUITY PEOCEDUBE. fendant is not entitled to affirmative relief against the plaintiff as prayed for in his (o?- her) said answer. It is therefore ad- judged, ordered and decreed that so far as said answer in the nature of a cross-bill sets up any claim to affirmative relief against the said plaintiff, be and the same is hereby dismissed. And it is further adjudged, ordered and decreed that each party to this suit do pay his own costs.^" 'No. 373. §1193. Directing^ payment of temporary alimony to the plaintiff in term time. (After the style of the suit.) This day the plaintiff moved the court to require the de- fendant to pay to her a reasonable sum of money for her sup- port and maintenance during the pendency of this suit and to enable her to carry on the same, and in support of said motion read her bill filed herein, which is verified by her own affi- davit, and in further support thereof filed the affidavits of J. C, R. P., and S. J. ; and the defendant in opposition to said motion filed his own affidavit and those of R. D. and J. K. Upon consideration of which the court doth' hereby sustain said motion, and doth adjudge, order and decree that the defendant C B do pay unto the plaintiff A B within days from this date, the sum of dollars for the pur- pose named in the said motion.^" No. 374. §1194. Directing payment of temporary alimony to the defendant in vacation. This day C B by her solicitor presented her bill in this cause and her own affidavit and those of R W — — 09 See 7 Etio. Forms. 70, 77. 440, as to the matter of tlie allow- «« vSee Hogg, Eq. Princp., sec. ance of alimony pendente lite. FOEMS OEDEES ANT) DECEEES. 1407 and I M and moved the undersigned, Judge of the Cir- cuit Court of county and State of , in the vacation of the said court, to require the plaintiff in the case of A B against C B pending in said court to obtain a divorce from the said C B , to pay the said C B a reasonable sum of money for the support and main- tenance of said C B — ■ — during the pendency of said suit and to enable her to properly defend the same. And [it appearing that the said A B has had due notice of this motion, and] the said Judge having read and con- sidered said affidavits, it is therefore adjudged, ordered and decreed that said A B do pay unto said C B within days from the date of notice of this order, the sum of dollars for the purpose named in the said motion. And in lieu of formal notice, the Clerk of said court is hereby directed to make tvsro copies of this order, one to be served upon the said A B , and the other to be returned by the Sheriff of said county to said Clerk's ofSce containing an endorsement of the time and manner of the service thereof. Judge. The Clerk v^ill enter the foregoing in the chancery record as a vacation order as to the day of ,19 — . Judge." 61 That part of the above form 823, which decides that " when a embraced in brackets is not intend- bill praying for a divorce and ali- ed for use in an order of this char- mony is presented to a Circuit acter when the wife is defendant Court in vacation by a wife before and makes application in vacation any process has been issued against for an allowance of temporary ali- the defendant husband, such judge mony, and that part of the form has no jurisdiction to enter a de- need never be used unless the wife cree for alimony pendente lite or is the plaintiff and applies for ali- permanent alimony without first in mony pendente lite, before process some manner summoning the hus- commeneing the suit has been issued, band to appear, and then affording but if process has not been issued him an opportunity to be heard, the defendant must have notice of and, should such a decree be en- the application, and the order should tered without first citing the hus- recite such fact. See Coger vs. band, a writ of prohibition will lie Coger, 48 W. Va. 135, 35 S. E. Eep. to prevent its enforcement." 1408 EQUITY! PKOCEDUEE. ' 'No. 375. §1195. Appointing commissioners to assign dower. (After the style of the cause and proper recitals.) Upon consideration whereof, the court doth adjudge, order and decree that A. B., C. D., E. E., G. H. and L. M., who are hereby appointed commissioners for the purpose, any three or more of whom being first duly sworn for the purpose may act, do go upon the land in the bill and proceedings mentioned and described, of which the late IST. iST. was seized of an estate of inheritance during his marriage with the plaintiff, Mary N , and assign and allot to the said Maiy IST , widow of the said IST ]Sr , by metes and bounds, one equal third part in value of the said land as her dower therein, and if for the proper performance of their duties under this decree it becomes nec- essary, in the opinion of the said commissioners who shall act hereunder, they are hereby authorized and directed to em- ploy a competent surveyor, who shall lay off the said land, or such part thereof as may be necessary, and make a plat thereof. And the said commissioners are directed to report their pro- ceedings hereunder to the next term of the court.^^ 62 The above form is taken from judged, ordered and decreed that Sands' Suit in Equity (2nd ed.) F W S , A R 577. The following is the form B and J J who are found in the record of the case of duly appointed commissioners for Martin vs. Smith, 25 W. Va. 579. that purpose, do, after having been {After the style of the suit.) duly sworn for that purpose, ad- This cause came on this day to judge and allot to the said L be further heard upon the bill and J M , widow as aforesaid, former proceedings had therein, and dower in all the said real estate of was argued by counsel. On consid- which said C M died seized eration of all which, the court is of and possessed, having due regard to the opinion that the said plaintiff, quality, quantity and value, allot- L J M , widow of G ting to the said L J M M , deceased, is entitled to dow- one-third of said real estate during er in the lands in the bill and pro- her natural lifetime, and report eoedings mentioned, of which G their praceedings under this decree M died seized and possessed in to this court. M Countv; it is therefore ad- POKMS OEDERS AND DECEEES. 1409 No. 376. §1196. Confirming report of commissioners assigning dower. (After the style of the suit.) This cause came on again to be heard upon the former or- ders and decrees made and entered herein; upon the report of commissioners (naming them) heretofore appointed to asr sign dower to Mary IST , widow of IST W , de- ceased, which is now filed in this cause ; and upon the argument of counsel. Upon consideration of all which the court is of opinion to and doth hereby ratify the said report, as well also as the assignment of dower made to said Mary IST as shown by said report. It is therefore adjudged, ordered and decreed that the said Mary IST do take and hold as and for her dower in and to the real estate of the said IST IST , de- ceased, for and during the term of her natural life, the follow- ing land situated in the County of , and bounded and de- scribed as follows: (Here describe the same by proper metes and bounds) J subject to the payment of all taxes, assessments and other charges thereupon, legally accruing after she shall take possession thereof. And a writ of possession may issue for said land upon the application or motion of said Mary ]Sr . It is further adjudged, ordered and decreed that said Mary N — — do recover of and from the defendants her costs in and about the prosecution of her suit in this behalf expended."' 'No. 377. §1197. Directing the payment of a gross sum in 'lieu of dower. (After the style of the cause and proper recitals.) On consideration whereof the several parties hereto assenting to the commutation of the dower of Mary N in the real 63 See Hartley vs. Roffe, 12 W. Va., 413; MeMullen vs. Eagen, 21 W. Va. 235, Syl. 10. 1410 EQUITY PROCEDURE. estate of her late husband, IST l^T , in the proceedings mentioned, the court doth adjudge, order and decree that the said Mary li , in lieu of her dower aforesaid, is entitled to receive at once the gross sum of dollars, and the court doth further adjudge, order and decree that out of the pro- ceeds derived from the sale of the real estate of IST X , deceased, hereinafter directed, that said Mary ]S^ be paid the said sum of dollars ; which sum, when so paid, is hereby declared to be in full of her dower in the real estate aforesaid as widow of the said IST IST , deceased."* No. 378. §1198. Overruling some exceptions to commissioner's report and sustaining others. (After the style of the cause.) This cause came on this day to be again heard on the pa- pers formerly read, and the report of commissioner W., made in pursuance of the interlocutory decree entered herein on the day of and upon the exceptions of the plaintiffs and the defendant, P. S. J., administrator of M. T., deceased, returned with the said report, and also upon the exceptions of the said defendant this day filed and the examination of witnesses and exhibits filed since the former hearing, and was argued by counsel. On consideration whereof the court doth overrule all the exceptions of the plaintiffs to the said report, and doth also overrule all the exceptions of the said defendant, P. S. J., ad- ministrator as aforesaid, except so far as one of the said excep- tions of the said defendant refers to and embraces the first item in special statement P, made by the commissioner at the instance of the said defendant, to-wit: the item of $99 in said special statement, dated day of , for the provisions furnished, as to which item and the interest thereon the court «4 Sands' Suit in Equity (2nded.) 577, 578. FORMS OEDERS AND DECREES. 1411 is of opinion that, the same should have been allowed as a credit to the estate of the said M. T., deceased, and that the balance of $ — — , reported by the commissioner as dne to the plaintiffs, should be reduced by the said sum of ninety-nine dollars and the interest thereon, amounting to five dollars and ninety-five cents, leaving the sum of $ due the plaintiffs on the day of , for which, in the opinion of the court, they are -en- titled to a decree and the court confirming the said report in all other respects ; and it appearing therefrom by the special statement E, made by the commissioner at the instance of the said defendant P. S. J., administrator as aforesaid, that he has assets of his intestate in his hands sufficient to satisfy this decree, the court doth adjudge, order and decree that the de- fendant, P. S. J., administrator of M. T., deceased, do pay to the plaintiffs the said sum of $ , with interest thereon, to be computed after the rate of six per centum per annum, from the — — day of until paid, and their costs by them about their suit in this behalf expended ; the same to be paid out of the assets unadministered still in the hands of said P. S. J., administrator aforesaid, belonging to the estate of said dece- dent."' No. 379. §1199. Of reference for the settlement of executorial and admin- istration accounts. (After the style of the suit and the proper recitals as indi- cated in No. 318 to the ° and then continue as follows:) Eirst, all of the personal estat« owned by said decedent, J. K., at the time of his death and with which said G. H. as administrator of such decedent is properly chargeable. Second, what disposition, if any, the said G. H. as such ad- ministrator has made of such estate. «5 Sands' Suit In Equity { 2nd interest, when the same has been ed.) 525, 526. As to the form reduced to a judgment or decree, in which a debt or claim should bear see ante. 1-1:12 EQUITY PEOCEDUEE. Third, what sums, if any, have been paid by said adminis- trator to the heirs and distributees of said J. K., deceased, when paid, and to which distributees paid. _ Fourth, what amount of said estate, if any, is now in the hands of said G. II. as such administrator. Fifth, what debts, if any, are payable by the estate of said J. K., deceased, to whom payable, and their respective amounts and priorities. Sixth, and such other matters as any party in interest may require, the same being pertinent, or such other matters as said commissioner himself may deem pertinent, whether so required or not. But before said commissioner shall proceed to take said account, he shall give notice to the parties to this suit of the time and place of the taking thereof, by publication for - — ■ — successive weeks in , a newspaper published in this county. And what the said commissioner shall do under this decree, he shall report to the next term of this coiirt, until which time this cause is continued. No. 380. §1200. Dismissing bill to set aside deed on the g^rounds of fraud and undue influence. (After the style of the suit and proper recital.) Upon consideration of which the court is of opinion and doth so adjudge, order and decree that J. E. J. was, on the day of , 18 , the time when the deed in the bill and proceedings mentioned and described was executed, of sound mind, and capable of making said deed ; that said deed was not obtained by the undue or improper influence of J. T. J., or any other person, and that the said deed was fairly made and was the free and voluntary act of the grantor, J. E. J. It is therefore further adjudged, ordered, and decreed that the plaintiff's bill be and the same is hereby dismissed, and FORMS — ^ OEDERS AND nBCKEES. 1413 that the ^plaintiff do pay unto the defendant his costs about the prosecution of his defense in this behalf expended."" ]Sro. 381. §1201. Setting aside fraudulent conveyance in favor of creditors. (After the style of the suit and the recitals as shown in No. 3-k-2 to the * confinve as follows:) It is therefore adjudged, ordered and decreed that the plain- tiff do recover of and from the defendant C D the Slim of dollars, the debt and demand in the bill and pro- ceedings mentioned and described including the interest there- on to this date, with legal interest on said sum of dollars till paid and the costs of this suit. And it appearing to the satisfaction of the court from the papers and evidence in this cause, that the deed from the said C D to the defendant E F — — bearing date on the day of — ■ — , 19 — , conveying the land therein de- scribed to the said E ' E , was made to hinder, delay and defraud the creditors of said C — '■ — D and especially the plaintiff A B in respect to the debt and demand aforesaid, it is therefore further adjudged, ordered and de- creed that the said deed, bearing date as aforesaid, be and the same is hereby set aside and held for naught, but so far only as the said debt and demand of said plaintiff A B — - — • is concerned. It is further adjudged, ordered and decreed that said C D do pay unto the said A B — — , within days from the rising of this court, the said s\im of dol- lars with legal interest thereon from this date until paid and also the costs of this suit; and in default thereof, then J R S , who is hereby appointed a special commissioner for that purpose, shall sell said real estate, or so much thereof as may be necessary to pay said debt and interest thereon and 60 See Jones vs. McGruder, 87 Va. 360, 12 S. E. Rep. 792. 1414 EQUITY PROCEDURE. the costs oi^ this suit, at public auction at the front door of the court house of this county to the highest bidder, after having iirst advertised the time, terms and place of sale for four suc- cessive weeks in some newspaper published in this county and by posting notice at the front door of the court house thereof for a like period prior to the day of such sale, upon the following terms : One-third of the purchase money cash in hand on the day of sale, and the residue in two equal installments on a cred- it of one and two years respectively, the purchaser giving his notes therefor with good personal security payable to said J E, — — S , or order, bearing interest from the date of such sale, and the said commissioner shall retain the legal title to said land as a further security ; and out of the proceeds of such sale upon its confirmation, payment shall be made of said debt, interest and costs, and the residue, if any, shall be paid to said E F . But before making such sale said spe- cial commissioner shall give bond in the penalty of dol- lars, before the Clerk of this court, conditioned for the faithful performance of his duties as such commissioner, and to ac- count for and pay over to the parties entitled thereto, all moneys which shall come to his hands by virtue of this decree ; and what said commissioner shall do under this decree, he shall report to the next term of this court. "^ Wo. 382. §1202. Tor distributidn of personal estate by administrator or executor. (After the style of the suit.) This cause came on this day to be further heard on the pa- pers formerly read, and the report of the commissioner made in pursuance of the order of the day of , entered in this cause, and was argued by counsel ; on consideration whereof the 6' See ante, see. fiOO, upon the principles announced in which the above form is founded. FOEMS OEDEES AH'D DECEEES. 141£ court doth adjudge, order and decree that the defendant, F F , executor of X X , deceased, do pay to the plain- tiff, P F , tlie sum of $ with interest at the rate of six per centum per annum from the day of until paid ; to R — ■ — F , executor of IST F , deceased, the sum of $ , with interest at the rate of six per centum per an- num from the day of until paid. But the said P F and E F , executor of N" F , deceased, are not to have the benefit of this decree until they shall respectively enter into bond, with sufficient security, in the clerk's ofiice of this court in a penalty equal to double the sums decreed to them respectively, payable to the defendant, F F , executor of X X , deceased, conditioned to refund a due proportion of any debts or demands which may hereafter appear against the estate of the said X X , deceased, and of the costs attending the recovery of such debts or demands.'* No. 383. §1203. Foreclosure of mortgages by sale of the premises. (After the style of the suit and proper recitals.) On consideration whereof, the court doth adjudge, order and decree that the defendant, E M , do within months from the rising of this court, pay to the plaintiff, J C , the sum of dollars, with legal interest thereon from this date until paid and the costs of this suit ; and it is further ordered, that if the said defendant shall, within the period aforesaid, pay to the said plaintiff the said sum of money with interest as aforesaid and the costs of this suit, that then the said plaintiff do reconvey the mortgaged prem- ises in the bill and proceedings mentioned to the said defend- ant, free and clear of all encumbrances done by him, or any esSee Sands' Suit in Equity (2nd ed.) 527, from which the above form is taken. 1416 EQUITY PEOCEDUEB. claiming by, from or under him, the said plaintiff. And the court doth further adjudge, order and decree that unless the defendant do within months from the rising of this court pay the said sum of money with interest and costs as aforesaid to the plaintiff, then C H , who is hereby appointed a special commissioner for that purpose, do, after having advertised the time, terms and place of sale for four successive weeks in some newspaper published in this county, sell, at public auction, to the highest bidder, at the front door of the court house of this county, the land in the bill and pro- ceedings mentioned and described upon the following terms: One-third of the purchase money to be paid in cash on the day of sale, and the residue payable in two equal installments at one and two years respectively from day of sale, the purchaser giving his notes with good personal security, for such deferred pay- ments, and the legal title to said property, to be retained until all the purchase money has been paid and a conveyance directed by the court. But the said C H shall not make said sale until he has given bond with approved security before the Clerk of this court in the penalty of dollars, conditioned for the faithful performance of his duties as such special com- missioner, and what the said C H shall do under this decree, he will report to the next term of this court. All of which is adjudged, ordered and decreed accordingly."" No. 384. §1204. For an account of rents and profits under bill for equity of redemption. (After the style of the suit and proper recitals.) On consideration whereof, the court doth adjudge, order and decree that the papers in the cause be referred to one of the 69 This form is adapted from one found in Sands' Suit in Equity (2nd ed.) 579. FOEMS ORDERS AND DECREES. 1417 commissioners of this court, who is hereby directed to take an account of what is due the defendant C E for prin- cipal and interest on the mortgage in the bill mentioned, after deducting whatever afnount of the rents and profits of the said mortgaged premises the said defendant C R may have received or which may have come to the hands of any oth- er person or persons by his order or for his use, or which he without his wilful default might have received. And the said commissioner is directed to examine, state and settle the said account and report the same to the court, with any matter specially stated, deemed pertinent by himself, or required by any of the parties to be so stated.^" No. 385. §1205. Referring cause on guardian's bill to sell real estate to a commissioner in chancery. J W , 2:uardian of E S , 7 &■■ vs. R S , an infant under twenty-one years of age, and J S and V M . In Chancery. This day came the plaintiff and filed his bill and J H- — — is assigned guardian ad litem to the infant defendant R — — P , to defend his interests in this suit ; and there- upon the said guardian ad litem filed the answer of the said in- fant defendant and his own answer to the bill of the plaintiff, duly sworn to (and the said R P being over fourteen years of age filed his own answer duly sworn to, to the said bill) ; and the adult defendants filed their answer, to which several answers the plaintiff by counsel replied generally, and the cause was docketed by consent, and coming on to be heard, by like consent, upon the bill, answers and replications, was 70 The above form is taken from Sands' Suit in Equity (2nd ed.) 581, 582. 1418 EQUITY PEOCEDUKE. argued by counsel: On consideration whereof, the court doth adjudge, order and decree, that the papers in the cause be re- ferred to L K J , one of the cominissioners of this court, who is directed to inquire into and report to the court : 1. Whether the interest of the infant defendant will be pro- moted by the sale of the property in the bill mentioned or of any part thereof and the investment of the proceeds of sale in other property ; 2. Whether the rights of any person will be violated by such sale ; which enquiries the said commissioner shall make and re- port to the court together with any matters specially stated deemed pertinent by himself or required by any of the parties to be specially stated.'^ No. 386. §1206. Confirming ccmmissioner's report and directing sale of in- fant's land. (After the style of the cause.) This cause came on this day to be again heard upon the pa- pers formerly read herein; upon the orders and decrees made and entered herein ; upon the 'report of coonmissioner L K J filed since the last hearing to which report there is no exception; upon the depositions taken before said com- 71 This form will be found in be kept together until my youngest Sands' Suit in Equity (2nd ed.) child becomes of age to be controlled 550, and serves as an illustration and managed by my executors and of how a court of equity may satis- my wife, with their best discretion ; fy itself as to the propriety of de- so as to make it productive of the treeing the sale of the estate of an greatest amount of profits for the infant. support of my wife and children. " Testator says, believing that a Held, That a court of equity may division of my property at this direct a sale of the real estate if time would be ruinous to the gen- it is for the benefit of the infant eral interest of my wife and our children, and those who are of age children, my will and desire is that consent." Talley vs. Starke, 6 all my estate (after payment of Gratt. 339. my debts as before provided for ) , POEMS OEDEES AND DECREES. 1419 missioner and returned with the said report ; and was argued by counsel. And it appearing from said report and evidence therewith returned that the interests of the plaintiff's said ward will be promoted by a sale of the real estate in the said bill and proceedings mentioned and described, and that the rights of no one will be violated by a sale thereof; it is therefore ad- judged, ordered and decreed that sale be made of the estate of the said infant, and that for the purpose of making such sale W W is hereby appointed a special commissioner, who, after having advertised the time, place and terms of sale once a week for four successive weeks in some newspaper pub- lished in this county, and by posting notice of the same at the front door of the court house of this county for a like period, the said W W shall make sale of the said property at public auction at the front door of the court house of this county to the highest bidder, in one or more parcels as to the commissioner may seem most advantageous to the parties in interest, upon the following terms, to-wit: (Here set forth the terms.) If the said commissioner deem it best to sell in parcels he may employ a surveyor to lay off the same in one or more parcels, making a plat of the same, and the said commissioner is directed to deposit the cash installment, de- ducting therefrom the expenses of sale, including a commission and fee of the surveyor if one be employed, and a fee of ■ dollars to the counsel instituting this suit, in the M IST ■ Bank, to the credit of the court in this suit, and report his proceedings therein to the court, returning therewith a certifi- cate of such deposit, and the notes or bonds given for the credit installments. Before the said special commissioner, W ■ W — ■ — , shall make any sale under this decree in chancery, he shall have entered into bond with good security, to be approved by the Clerk of this court, conditioned for the faithful dis- charge of his duties as such commissioner.''^ '2 The above form is taken in sub- court referred the matter of as- stanee from one appearing in Sands' certaining whether a sale of tlie Suit in Equity (2nd ed.) at pp. property would be promotive of the 554, 555. It will be observed that interests of the infant, and whether this sale is directed upon the re- the rights of any person would be port of fl commissioner to whom the violated by such sale. The court, 1420 EQUITY PEOCEDTJBE. l^^o. 387. §1207. Upon guardian's petition to sell real estate of infant, hearing evidence and authorizing sale thereof. B , guardian of C- D- vs. [. In Chancery and upon C D , an infant imder petition. twenty-one years of age, **This day A B , guardian of C D — ■ — , an infant under tlie age of twenty-one years, presented to the court his petition duly verified by his own affidavit praying for permission to sell certain real estate belonging to said in- fant in said petition described, and asked leave to file the same which is accordingly done. Thereupon, the said A B , guardian as aforesaid, moved the court for the appointment of a guardian ad litem for the said C D — — , and for a hear- ing on said petition ; and it appearing to the court that due and sufficient notice of the application for a hearing upon said petition has been given to said C D and all other persons interested, the court doth hereby appoint E F — ■ — • as a suitable and proper person to act as guardian ad litem for the said C D , who appeared and filed his answer duly sworn to, as such guardian ad litem, and the said infant, who is over fourteen years of age, also appeared and filed his answer which is also properly sworn to. And now this matter coming on to be heard upon the said petition, and its exhibits ; ' the answers of the said guardian ad litem and the said infant, with general repli- cation to each of said answers, the court proceeded to hear and did hear, all the evidence upon the questions arising upon said petition, and the argument of counsel therenn. Upon consideration of all which the court is of opinion that a sale of the real estate in the said petition mentioned and de- instead of determining this fact for which a commissioner may ascertain itself, referred the matter to a and report upon matter of fact, commissioner as in other cases in I'OEMS OEDEES AND DECEEES. 1421 scribed will promote the interests of the said C D , the same appearing to the court independently of any admis- sions in the answers, and it further appearing., and the conrt so being of opinion, that the rights of no person will be violated by a sale of such real estate, it is, therefore, adjudged, ordered and decreed * that the said real estate belonging to said C D be sold, either at public or private sale, whichever, in the opinion of the special commissioner hereinafter appointed will be most conducive to the interests of the parties concerned, up- on the following terms : One-third of the purchase money in cash on the day of sale, and the residue in one and two equal installments, payable in one and two years respectively, the purchase^ giving his notes therefor drawing interest from the day of sale, with good personal security, payable to such special commissioner, and the legal title to be retained to further se- cure the payment of such deferred installments. And for the purpose of making such sale, J — — W ]\I — ■ — is hereby appointed a special commissioner, who shall give bond in the penalty of dollars before the clerk of this court conditioned for the faithful performance of his duties as such special com- missioner, and to account for any and all moneys that shall come into his hands under this decree. But before making said sale, the said commissioner shall advertise the time, terms and place of such sale in , a newspaper published in this coun- ty, for four successive weeks prior to the time of making such sale, and shall post the same for a like period at the front door of the court house of this county. And what the said special commissioner shall do under this decree he shall 're- port at the next term of this court.'^ No. 388. §1208. Confirming sale of infant's land and directing investment of proceeds of sale. (After the style of the suit as indicated in No. 387 to the **. j This cause came on this day again to be heard upon the 73 The above form is constructed of West Virginia, Code, Ch. 83, sec. from the provisions of the Statute 14. 1422 EQUITY PEOGEDUEE. papers formerly read herein ; upon the former orders and de- crees entered therein ; upon the report of sale of W W , to which no exceptions have been filed, and the court seeing no jvist ground of exception thereto, the said report is hereby rati- fied and confirmed. And it appearing from said report that M V became the purchaser of the real estate hereto- fore directed to be sold, belonging to the infant defendant, R L , at the price of nine hundred dollars, and that the ^ash installment of three hundred dollars was duly paid to the said special commissioner, and by him deposited in the M N — ■ — Bank to the credit of this suit, for which the said commissioner has filed a certificate of deposit with his said report, and that the said purchaser has, given his two notes for three hundred dollars each, payable to the said special commissioner or order, with interest from date, and which are also filed herein; it is therefore adjudged, ordered and de- creed that upon the payment by the said purchaser of the said notes that then the said special commissioner do make, acknowl- edge and deliver for record, an apt and sufficient deed of convey- ance with covenants of special warranty conveying to the said II C — ■ — the title to the lands purchased by him as aforesaid, for which the said special commissioner shall be allowed a fee of five dollars, to be taxed as part of the costs of this suit. And it is further adjudged, ordered and decreed that out of the proceeds of the cash payment the said special com- missioner do pay the costs of this suit, including the costs of the said sale, and the residue of the proceeds he shall pay over to the plaintiii in this suit, the guardian of the said infant, as well also as the proceeds of the said notes, when paid, for which the said special commissioner shall take the receipts of the said guardian, and file the same among the papers of this cause. And it is further adjudged, ordered and decreed that before the said guardian shall receive the said money he shall enter into bond in open court with approved security, in the penalty of dollars, conditioned for the faithful application and investment of the FOEMS OEDEES AND DECREES. 1423 proceeds of said sale which shall come to his hands under and by virtue of this decree, and for the management and preserva- tion of the same and the securities until the same may be in- vested, and for the protection of the rights of all persons in- terested therein, whether said rights be vested or contingent. And the court doth further adjudge, order and decree that upon the execution of said bond, and the receipt of said money by the said guardian, he is hereby directed and required to invest the same in good personal security, bearing interest from the date of the investment, and providing for the annual payment of the interest ; and the said investment shall be made within days from the time the said money shall have been received by the said guardian. All of which is adjudged, ordered and decreed accordingly.'* Wo. 389. §1209. Entering rule against purchaser at judicial sale for fail- ure to comply with his purchase. (After the styte of the cause.) This cause came on this day to be again heard on the papers formerly read herein, and former orders and proceedings had therein; and was argued by counsel. Upon consideration whereof the court doth adjudge, order and decree that E R , being served with a copy of this order ten days before the ■ day of , 19 — , do on that day show cause to the court, if any he can, why he should not be compelled to comply with his purchase of the acres of land from W W , special commissioner, and upon his failure to do so why the said land should not be resold at his risk and costs.'"' 71 This form is constructed from for defects in the title or ineum- the requirements of the -Statute of brances on the property by resisting West Virginia, Code, Ch. 83, sees. the confirmation of the -sale by the 15, 17. court upon the return of the eom- 75 The purchaser of land at a ju- missioner's report. Threlkelds vs. dicial sale can only obtain relief Campbell, 2 Graft. 198. 1424 equity peoceduee. jSTo. 390. §1210. Overruling' exceptions to commissioner's report of sale of infant's land, and requiring purchaser to comply with terms of sale. (After the style of the cause.) This cause camQ on this day to be heard upon the papers formerly read herein ; upon the foisner orders and decrees made and entered therein ; on the return and answer of R R to the rule to show cause, entered upon the day of , 19 — ; and on the documents and evidence filed therewith in support thereof, and on the evidence of X X and W W — ' — , and on the report of special commissioner W W^ — , and exceptions thereto ; and the court now be- ing fully advised of its judgment, doth adjudge, order and decree that the said exceptions of the said R R to the report of the said commissioner W W , be over- ruled, and the said report be and the same is hereby ratified and confirmed. And the court doth further adjudge, order and decree that the purchaser, R R , do comply with the terms of his purchase of the tract of land sold to him by the said commisssioner, W W , and that the said R R pay to the said W W , commissioner as aforesaid, within days from the entry of this decree, the sum. of dollars, that being the cash installment of his said pur- chase, and execute to the said W W , commissioner, his three bonds, (or notes) to be dated as of the day of sale, to-wit: on the day of , 19 , for the sum of dollars each, with interest, payable from their date at one, two and three years respectively; and imless the said R R shall, within the time aforesaid, make the said pay- This, aa here stated, seems to be Clung, 9 Gratt. 3.58; Daniel vs. the general rule in Virginia, and Leitch, 13 Gratt. 212; Long vs. objections made to the sale after its Weller, 29 Gratt. 351. And the confirmation because of defect of same rule, it is believed, obtains in title comes too late. Watson vs. West Virginia. Hyman vs. Smith, Hoy, 28 Gratt. 710; Young vs. Mc- 13 W. Va. 772, et seq. FOEMS OEDEES AND DECEEES. 1425 ment and execute his bonds aforesaid, then the said special commissioner, after advertising the time, terms and place of sale once a week for four successive weeks in some newspaper published in this county prior to the day of sale, and posted, in addition thereto, at the front door of the court house of this county for a like period, shall sell at public auction to the high- est bidder, at the front door of the court house of this county, at the risk and cost of the said K E. , the tract of land so purchased by said E — ■ — - E, , to-wit : (Here describe the same) ; on the following terms, to-wit : (Here set forth the terms) ; and the said commissioner is directed to deposit the cash installment of purchase money in the JM ISF Bank to the credit of the court in this cause; and to return a certificate of such deposit, and the bonds given for the defer- red payments, with his report of sale, to the court. (Here require the usual bond to be given by the commissioner. )^'^ No. 391. §1211. Awarding an injunction by a judge in vacation to re- strain the commission of waste. (After the style of the cause and the court in which it is pend- ing.) This day A ■ B by his counsel presented his bill with its accompanying exhibits, duly verified by affidavit, to the undersigned Judge of the Circuit Court of County, and State of — ■ — , in the vacation of said court, praying for an injunction against C — D , restraining and enjoin- ing him from cutting down and destroying certain ornamental and shade trees standing and growing upon the premises in the said bill mentioned and described, and upon consideration of said bill and exhibits the undersigned Judge is of opinion to and doth hereby award an injunction as prayed for in said bill.* But said injunction is not to take effect until bond with TO The foregoing form is prepared Suit in Equity (2nd eji.) pp. 559- from a similar one found in Sands' 561. 1426 EQUITY PEOCEDUEE. good security has heen given before the Clerk of the said court in the penalty of dollars, conditioned to pay such costs as may be awarded against the said A B , and also such damages as shall be incurred by the said C — ■ — D , in case the said injunction shall be hereafter dissolved. \y — s — , Judge of the Circuit Court of — County, State of The Clerk of the said court will enter the foregoing as a vacation order as of the date of the day of , 19 . No. 392. §1212. Awarding an injunction by the court in term time to judgments at law. (After the style of the suit.) On motion of the plaintiff, by counsel and for good cause shown, an injunction is hereby awarded enjoining and re- straining the defendant, S. L., his agents, attorneys and all others, from further proceedings on a judgment, recovered by the said defendant against the plaintiff in this suit in the Circuit Court in the County of , on the ' day of , 19 ; and in the sum of dollars, until the fur- ther order of the court. But the said injunction is not to take effect until the plain- tiff in this suit, or some one on his behalf, shall enter into bond with suiEcient security before the Clerk of this court in a pen- alty equal to double the amount of the said judgment, con- ditioned to pay the said judgment and all such costs as may be awarded against the said plaintiff in this suit, and all such damages as shall be inciirred by the said S. L., in case said injunction shall be hereafter dissolved; nor until the plaintiff herein also files with the Clerh in the said Circitit Court in County a release of all errors at law in the said judgment and proceedings.''^ T' See Sands' Suit in Eq. 586. a similar one found in Sands' Suit 78 The above form is adapted from in Equity (2nd ed.) 596, 597. It FOEMS OKDEES AND DBCEEES. 1427 No. 393. §1213. Awarding injunction in vacation without bOnd. (Proceed as in No. 391 to the *, and then as follows:) And it appearing to the court that the above named C C L — — is the receiver of the Circuit Court of County, and therefore an officer of this court {or it appearing to the satisfaction of the court that this is a case in which bond should not he required), the foregoing injunction is awarded to take effect without bond. (Conclude as in No. 391 from the f./" No. 394. §1214. For an injunction against a corporation. (After the style of the cause, and as in No. 392 or 393, as the case may requir-e, and then as follows:) An injunction is here- by awarded, restraining and enjoining the said JST W ■ Company, its officers, agents and employes from (Here insert the act or acts enjoined, as in an ordinary injunction order. )^'' will be observed that the foregoing ployes and servants, and these form provides for a release of all words are rarely omitted from an errors at law in the said judgment order of this character, if ever, and proceedings before the injune- Foster's Fed. Prae. (1st ed. ), tion shall take effect. This rule as to 234 ; 2 Dan'l, Ch. PI. and the release of errors has been great- Pr. (5 Am. ed. ), 1673; Seton, De- ly relaxed in modern practice in erees (4th ed.) 173; Mexican Ore ■the Virginias, and may be said to Co. vs. Mexican Guadalupe Min. practically no longer obtain. War- Co., 47 Fed. Rep. 3.51, 356. This wick vs. Norvill, 1 Rob. 308; Great form of an injunction against a cor- Falls Manf. Co. vs. Henry, 25 Gratt. poration is generally necessary in 575 ; Parsons vs. Snyder, 42 W. Va., order to enable the court to enforce 517, 26 S. E. Rep. 285. its writ. A corporation acts only 'ii See Code (W. Va.) Ch., 133, through its officers and employes, sec. 10. and it is through them only that its so If an injunction be issued action can be restrained or com- against a corporation it is usual to pelled. While doing the work of insert in the restraining order its the company, the employe is the extension to its officers, agents, em- company, and having notice of u. 1428 EQUITY PEOCEDUEE. 'No. 395. §1215. Made in vacation overruling motion to dissolve an in- junction. Before the undersigned Judge of the Circuit Court of County and State of , in vacation, came the defendant by counsel in the chancery cause of A B against C D , pending in the said court, and submitted a mo- tion to dissolve the injunction heretofore awarded herein, upon the bill, answer, replication, depositions taken therein, upon the notice duly served upon the said plaintiff of the time and place of making this motion, and upon the argument of counsel thereon for plaintiff and defendant. Upon consid- eration of all which the undersigned Judge doth hereby * overrule said motion, and doth refuse to dissolve the said inj unction. -f- , Judge o/ the Circuit Court of ■ County, and State of . The Clerk of the Circuit Court of County, and State of , will enter the foregoing as a vacation order, as of tlie date of the ^ day of , 19 . Judge. No. 396. §1216. Made in vacation dissolving an injunction. (As in No. 395, to the ^', and then continue as follows:) sustain said motion and doth dissolve said injunction. (Conclude as in No. 395 from the f./^ mandate of a court of competent Co., 54 Fed. Rep. 730, 19 L. R. A. jurisdiction, as to liow that work 393. must be done, he must, in his work, si Arbuckle vs. McClanahan, 6 W. obey the mandate. Toledo, A. A. Va. 101, 107. & N. M. P. Co. vs. Pennsylvania FORMS OEDEES AND DECREES. 1429 ]Sro. 397. §1217, Made in term time overruling motion to dissolve in- junction. (After the style of the cause.) This cause came on this day to be heard upon the plaintiff's bill and its exhibits; upon the motion made by the defendant to dissolve the injunction heretofore awarded in this cause; and was argued by counsel. On consideration whereof the court is of opinion that the said injunction ought not to be dissolved; it is therefore adjudged, ordered and decreed that the said motion to dissolve said injunction awarded in this case be, and the same is hereby overruled.'^ No. 398. §1218. Made in term time, dissolving an injunction and dismiss- ing the bill. (After the style of the suit.) This cause came on this day to be heard upon the bill and its exhibits ; upon the answer of the defendant to said bill and general replication thereto ; upon the depositions taken and filed in the cause; upon the defendant's motion to dissolve said injunction and to dismiss the plaintiff's bill ; and upon ar- gument of counsel.* Upon consideration whereof the court is of opinion that the injunction heretofore awarded in this cause ought to be wholly dissolved. It is therefore adjudged, ordered and decreed that the said injunction be and the same is hereby wholly dissolved. And the sole purpose of this suit, as appears to the court, being for the purpose of obtaining the injunction aforesaid, and the plaintiff showing no sufficient cause why his said bill should not be dismissed, it is there- fore adjudged, ordered and decreed that the said bill be, 82 See Cox vs. Douglass, 20 W. Va., 177, 178. 1430 EQUITY rKOCEDUEB. and the same is hereby dismissed, and that the defendant do recover of the plaintiff his costs about his defense by him in this behalf expended, including a statute fee of twenty dol- lars/" ¥0. 399. §1219. Dissolving injunction to an action at law, and setting aside a confession of judgment. (After the style of the suit and the proper recitals:) Upon consideration whereof it is adjudged, ordered and de- creed that the injunction heretofore awarded the plaintiff in this suit on the — ■ — ■ day of , 19 , be and the same is hereby dissolved. But this order shall not take effect until the plaintiff in the action at law shall have withdrawa op caused to be set aside, the judgment obtained by confession, as a condition precedent to the awarding of said injunction, and shall have caused said action at law to be reinstated upon the trial docket to be tried at law, upon the issue in the case or such other proper issue or issues as may be hereafter made up. (Conclude with a judgment for costs on behalf of the defendant.)^* No. 400. §1220. Perpetuating an injunction to a trust sale. (After the style of the suit, and as indicated in No. 398 to the *, and then continue as follows:) Upon consideration of all which the court is of opinion, and doth so adjudge, order and decree, that the plaintiff is en- 83 Werninger vs. Wilson, 2 W. Va., stantially from the one found in 5; Bank vs. Fleshman, 22 W. Va. Great Falls Mfg. Co. vs. Henry, 25 318. Gratt. 575. 84 The foregoing is taken sub- FOEMS OEDEES AND DECREES. 1431 titled to the relief prayed for in his said bill. It is therefore adjudged, ordered and decreed, that the injunction heretofore awarded in this cause, restraining C D , trustee in the deed of trust bearing date on the day of , 19 , executed by A B to said C D to secure the payment of a debt therein described to the defendant, E F , from making sale of the property under the notice mentioned in said bill, be, and the same is hereby made ])er- petual. And it is further adjudged, ordered and decreed that said C D , trustee, as well as said E F — - — , cestui que trust, be, and they are, and each of them is, per- petually enjoined from making sale, or attempting to make sale, of said property in said trust deed embraced, or any part thereof. And it appearing to the court that there is nothing due upon the said trust deed in the bill and proceedings men- tioned and described, and that the same has been entirely paid off and, therefore, the land thereby discharged, it is therefore, hereby adjudged, ordered and decreed that the defendant E F , do execute a release within thirty days from the ris- ing of this, court, in the manner prescribed by law (Ch. 76, Sec. 2, of the Code of this State 84*), and deliver the same to the said plaintiff for record, and in default thereof that be, and he is hereby appointed a special commissioner to execute such release, which he shall do, and deliver the same to the said plaintiff for record, and for which the said special com^ missioner shall be allowed the sum of five dollars, to be taxed as a part of the costs of this suit. It is further adjudged, ordered and decreed that the plain- tiff do recover of and from the defendant his costs in and about the prosecution of his suit in this behalf expended, in- cluding a statute fee of dollars. ''^ *8* West Virginia. 85 Van Gilder vs. Hoffman, 22 W. Va., 1, 43, 44. 1432 EQUITY PROCEDUBE. No. 401. §1221. Dissolving injunction and discharging; receiver. (After the style of the cause.) This cause came on this day to be heard upon the plaintiff's bill and its exhibits ; upon the answer of the defendant and general replication thereto ; upon the depositions taken and filed in the cause ; upon the motion made by the defendant to dissolve the injunction heretofore awarded, and discharge the receiver appointed herein; and upon argument of counsel. Upon consideration whereof the court is of opinion that the order awarding the injunction, and appointing a receiver in this cause ought not to'have been made; and that the motion of the defendant to dissolve said injunction, as well as his mo- tion to vacate the order appointing said receiver, is well taken and should be sustained. It is therefore adjudged, or- dered and decreed that the said injunction he, and the same is hereby, dissolved; that the said order appointing J D- — ■ — ■ L receiver in this cause, be, and the same is, hereby vacated and set aside, and the said J D L is dis- charged from his receivership in this suit; and he, the said J D L , is hereby directed to at once settle his accounts, and to turn over the property now in his possession to the defendant, and that he refrain from exercising any fur- ther control over any property heretofore committed to his charge or custody. (Conclude with judgment for costs in fa- vor of the defendant.)"^ - W- vs. No. 402. §1222. Dissolving injunction unless new bond be given. Upon rules to show cause why the injunction heretofore awarded in W — ■ — and others. this cause should not be dissolved. This cause came on this day to be heard upon the rules aforesaid, and upon the affidavits and depositions taken in re- 88 See Cinoimiati, etc., E. Co. vs. Sloane, 31 Ohio St. 2. FOBMS OEDEBS AND DECREES. 1433 lation thereto, and was argiied by counsel. Upon considera- tion whereof it is adjudged, ordered and decreed that unless the complainant file a new bond in this cause with the Clerk of this court with good security, in the penalty of ■ dol- lars, and conditioned (here name the conditions) within • days from this day, then the injunction heretofore awarded in this cause be and stand dissolved as an act of this day.*^ ]Sro. 403. §1223. Directing issue out of chancery. (After style of suit and proper recitals.) Upon consideration whereof the court doth adjudge, order and decree that an issue be made up and tried at the bar of this court, to ascertain and determine whether (Here insert the matter to he tried). And it is further adjudged, ordered and decreed that on the trial of the said issue the plaintiff shall maintain the afSrmative and the defendant the negative ; and on the said trial of said issue the bill, answer, exhibits and the depositions of such witnesses as are dead, or where their at- tendance cannot be secured, may be read in evidence, and such other evidence may be introduced by either plaintiff or de- fendant, as may be legal and proper.*' No. 404. §1224. Directing an issue devisavit vel non. (After the style of the cause.) This cause came on this day to be heard upon the bill and its exhibits; upon, the process duly executed upon the defend- 87 See Werninger vs. Wilson, 2 from a similar one found in Sands' W. Va. 5. f^uit in Equity (2nd ed.) 623. 88 The foregoing form is taken 1434 EQUITY PROCED0EE. / ants ; and upon the proceedings in this cause regularly had therein at rules; upon the answer of J B T , committee of M B S , a lunatic, and the plain- tiffs' general replication thereto ; upon the answer of W H — — B , guardian ad litem of the infant defendants herein ; upon the depositions taken and filed in this cause, both on behalf of the plaintiffs and the defendants. And now, upon motion of the plaintiffs, it is adjudged, or- dered and decreed that an issue be, and the same is hereby di- rected, to be tried before a jury at the bar of this court, to ascertain " whether any, and if any, how much, of the paper writing probated on the day of , 19 -, in the Clerk's office of the County Court of County, in the State of , purporting to bear date on the day of , 19 , and which purports to be the will of J ]\I S , deceased, is the will of the said J M ■ S , deceased." And it is further adjudged, ordered and decreed that the Clerk of this court be, and he is hereby, directed to place the said issue on the law issue docket of this court, and upon the trial of said issue before the jury the defendants in this suit, M B S , a lunatic, J B T , her committee, E S , S S , Z ■ S , and J M S , Jr., the last four of whom are minors, shall be the plaintiffs upon the trial of said issue before the jury; and the plaintiffs in this suit, Z T , W S S , T— R S ; M F S , F P S , G^— B S— — , M E E and V Y , shall be the defendants upon the trial of the said issue. And it is further adjudged, ordered and decreed that W • H B , the guardian ad litem of the infant defendants in this suit be, and he is hereby, appointed to act as the next friend of the said infants upon the trial of the said issue be- fore the jury. And it is further adjudged, ordered and decreed that the plaintiffs in this suit be, and they are hereby, permitted to POEMS ORDERS AND DECREES. 1435 read before the jury their bill filed in this cause; and like permission is given to the defendants herein to read their answers filed herein, for the piirpose only of more clearly pre- senting to the jury that shall try said issue the scope thereof and to the better enable them, the said jury, to understand and determine the grounds of this contest, but said bill and answers shall not be taken and treated as evidence for or against any of the parties to this suit. And if is further adjudged, ordered and decreed that the Clerk of this court be, and he is hereby directed, to summon any and all witnesses desired by any of the parties to this suit to testify in their behalf upon the trial of the said issue, in the same manner and to the same extent as witnesses may be sumjnoned upon the trial of an action at law ; but the depo- sition of any witness heretofore taken in this cause whose at- tendance cannot be procured before the jury that shall try said issue, because of sickness, death, or other inability to attend this court, or because he is beyond the jurisdiction of this court, may be read in evidence before the jury in the same manner and with the same effect as if said deposition had been hereafter taken on any proper ground, for the express pur- pose of being used upon the trial of said issue. And for the purpose of enabling the parties to properly prepare for the trial of the said issue, this cause is continued generally until the next term of this court. No. 405. §1225. Enforcing mechanics' lien. (After the style of the cause.) This cause came on this day to be heard upon the bill and exhibits therewith filed ; upon the separate answer of the C • C Company, and the plaintiff's replication thereto; and the bill regularly set for hearing and taken for confessed as to the defendants, S B , J W C , T A P and C S , trustees, they still failing 1436 EQDITY PEOCBDUEE. to appear, plead, answer or demur, though process has been duly served and executed upon the said last named defend- ants; and was argued by counsel for the plaintiff and the de- fendant, the C — C — ^- Company. On consideration of all which the court is of opinion that the mechanics' lien men- tioned and described in the complainant's bill and exhibits therewith filed, is a valid and subsisting lien upon the prop- erty in said lien set forth, and that the said plaintiff is en- titled to the relief prayed for. It is, therefore, adjudged, or- dered and decreed that the said E T recover of the said defendant, the C C Company, the sum of dollars, including the interest thereon to this date, that being the amount due said plaintiff on the mechanics' lien set forth and described in the plaintiff's bill, and filed as " Exhibit A " therewith. It is further adjudged, ordered and decreed that unless the said C — - — • C Company, or some one for it, do, within thirty days from the rising of this court, proceed to pay off and satisfy the aforesaid sum of dollars, together with the costs of this suit, including a statute fee of dol- lars as allowed by law, that then J B M , who is hereby appointed a special commissioner for that purpose, do proceed to sell, by way of public auction, at the front door of the court house of County, in the State of , to the highest bidder, after having advertised the time, terras and place of sale for four successive weeks in some newspaper pub- lished in the county aforesaid, the following described tract or parcel of land, with the buildings and appurtenances there^ to, known as the Bedford Salt Furnace, and described in " Ex- hibits A " and " B " filed with plaintiff's bill, said lot or tract of land being situated in the County and State aforesaid and in district, and at the town of , and more particularly bounded as follows, to-wit: (Here describe the land); said sale to be upon the following terms : (Here set forth the terms). And out of the proceeds arising from said sale said special commissioner is directed to first pay the costs of this suit, and then the amoimt found and ascertained to be due the plaintiff as aforesaid, with interest thereon from this day, and any balance FORMS • OEDEES AND DECEEES. 143Y remaining in his hands over to said C C Company. But before said special commissioner shall make any sale under this decree he shall first give bond in the penalty of — ■ — dol- lars, conditioned for the faithful performance of his duties as such special commissioner. And said special commissioner is directed to report his proceedings under this decree at the next term of this court, until which time this cause is continued.*" Wo. 406. §1226. Enforcing vendor's lien. (After style of cause and recital as indicated in No. 318 to the * proceed as follows:) From all of which it doth appear to the court that there is now due and owing from the defendant C D to the plaintiff A B on accoiint of the sale of the lands in the bill and proceedings mentioned, including the interest thereon to date, the sum of dollars, after allowing a credit there- on for all payments and sets-off to which the defendant is in any wise entitled. It is, therefore, adjudged, ordered and decreed that the said C J) — ■ — do pay unto the said A B within thirty days from the rising of this court, the sum of dollars, with legal interest thereon from this date until paid, and the costs of this suit. And it further appearing to the court that the said A B did reserve a lien upon the face of the deed conveying said lands to said C — — D . to secure the payment of the unpaid purchase money, of which the said sum of dollars is the residue or unpaid part of said purchase money, and that by reason of said reservation of a lien upon the face of said deed, the said sum of dollars constitutes and is the first and only lien on the lands in the bill and proceedings in this cause mentioned and de- scribed, it is, therefore, adjudged, ordered and decreed that so Taken from the record in Turnbull v. Clifton Coal Co., 19 W. Va. 299. 1438 EQUITY PEOCEDUEE. if the said C D shall fail to pay said sum of dollars within thirty days from the rising of this court, that then said land be sold at public auction at the front door of the court house of this county upon the following terms : (Here insert the terms of sale) ; and for the purpose of making said sale E Q L is hereby appointed a special com- missioner, but before doing so he shall advertise the time, terras and place of sale in some newspaper published in this county, for four successive weeks, and by posting notice thereof at the front door of the court house of this county for a like period. But before making such sale the said E Q L shall enter into bond before the Clerk of this court with sufficient surety, to be approved by said Clerk, in the penalty of dollars, conditioned for the faithful performance of his duties as such commissioner. And what the said R Q L shall do under this decree he shall report to the next term of this court; until which time this cause is continued.'" ISTo. 407. §1227. Setting up lost instrument and entering decree thereon. (After the style of the suit and the proper recitals, proceed as follows:) And it appearing to the court from competent and satisfactory proof herein that the defendant, C D — — , did make and deliver to tlie said plaintiff, A — — B , his negotiable promissory note bearing date on the day of , 19 , payable to the order of said A B , in after the date thereof, at the Bank, and in the sum of dollars ; and it further appearing to the court that at the time of the institution of this suit said plaintiff was still 80 See Long vs. Perine,41 W. Va., Scraggs vs. Hill, 43 W. Va. 162, 27 314, 23 S. E. Eep. 611; Triplett vs. S. E. Rep. 310; McGlauglin vs. Mc- Lake, 43 W. Va., 428, 27 S. E. Graw, 44 W. Va., 715, 30 S. E. Kep. Rep. 363; MeClaHgheriy vs. Croft, 64; Bellinger vs. Foltz, 93 Va. 129, 43 W. Va., 270, 27 S. E. Rep. 246; 25 S. E. Rep. 998. FOEMS OEDEES AND DECEEES. 1439 the owner of said note, and that the same was then due and unpaid, and that said note and its interest now amounts to the sum of dollars ; the court is of opinion that the plain- tiff ought to recover from the said C D said sum of ■ dollars, with legal interest thereon until paid. And it further appearing to the court that at the time this suit was instituted the said note was, and still is, lost, and that when the same was lost that said A B was the owner and holder thereof, the said A B being required so to do, executes and files in the papers of this cause a bond payable to said C — — D — — in the penalty of dollars, with E F and G H as sureties, conditioned to save harmless and indemnify the said C D against all claims by any other person on account of said note, and against all costs and expenses by reason of such claims, which bond, being found to be in a sufficient penalty, in proper form, and with sufficient security, is now here in open court approved. It is therefore, adjudged, ordered and decreed that said plaintiff do recover of and from the said defendant, C D , the said sum of dollars, with legal interest there- on until paid, and his costs in and about the prosecution of his suit in this behalf expended.^^ No. 408. §1228. Declaring a deed to be a mortgage. (After the title of the cause and proper recitals continue as ■follows:) And it appearing to the satisfaction of the court that the said conveyance, bearing date on the day of , 1 9 , executed by the plaintiff to the defendant, a copy of which is filed as " Exhibit B " with the plaintiff's said bill, and pur- porting to be a deed, was made, signed and delivered by the said plaintiff to the said defendant to secure to the said defend- ant, C D , the sum of dollars, and was desig-ned 91 See Truly vs. Lane, 45 Am. Dee. 305 and note. liiO EQUITY PEOCEDUEE. and intended both by the said A B and the said C 1) to be a mortgage, securing said sum of dollars, it is therefore, adjudged, ordered and decreed that the said writing, purporting to be a deed, bearing date on the day of , 19 , as aforesaid, and executed by the said A B to the said C D be, and the same is hereby, declared to be a mortgage, and that the said tract of land therein mentioned and described, so standing as a security for the said sum of dollars due and payable by the said A B to the said C D , which now amounts, including the interest to date, to the sum of dollars ; and it is further adjudged, ordered and decreed that the said sum of dollars, principal and interest to date, constitutes a valid and subsisting lien upon the real estate embodied and described in the said writing bearing date as aforesaid. And it is further adjudged, ordered and decreed that upon the pay- ment of the said sum of dollars above named to the said C D by the said A B , or some one for him, that then the said C D shall make an apt and sufficient deed with covenants of general warranty, reconveying the said land to the said A B , and in default thereof that then R R , who is hereby appointed a special commissioner for that purpose, shall make, acknowledge and deliver for record such deed, for and on behalf and in the name of the said C D , for which the said B B ■ shall be al- lowed the sum of five dollars, to be taxed as part of the costs of this suit. (Proceed with the decree by requiring the plain- tiff to pay the sum of money constitutinc/ the loan or debt • within a reasonable time to be frcscribcd in the decree, and in default of such payment directing a special commissioni'i- to make sale, prescribing the terms, etc., as in any other ordi- nary decree of sale of real estate. Give a decree for costs for A B in the foregoing decree in favor of the plain- tiff, as he is the party substantially prevailing in the suit.)"' 02 The foregoing form is based Deming, 12 W. Va. 246, 293, 294; upon the cases of Lawrence vs. Du etc. Bois, 16 W. Va. 443; Davis vs. FORMS OKUEKS AND DECREES. 1441 No. 409. §1229. Authorizing mortgage on lands of infant by his guardian. (As in No. 387 mutatis mutandis to the * and then as fol- lows:) that tlie petitioner be allowed to borrow on the faith and credit of the said real estate the sum of dollars, for the purpose of making improvements upon the said real estate and to secure the same, the lands of the said petitioner mentioned and described shall be encumbered by mortgage; and the said A. B., guardian of the said C. D., is hereby directed to ascer- tain the rate of interest and the time for which he can borrow said amount, and report the same to this court.^' ISTo. 410. §1230. Confirming report of guardian as to borrowing money and authorizing the execution of a mortgage. (After the style of the case as in No. 387.) This cause again came on to be further heard upon the papers formerly read herein ; upon the former orders and de- crees made and entered therein ; upon the report of said guard- ian A. B., as to the amount of money that may be borrowed in this proceeding and the rate of interest to be paid thereon; and was argued by counsel. Upon consideration whereof, there being no exceptions to said report, and the court perceiving no just grounds of exceptions thereto, the said report is hereby ratified and confirmed. And it appearing from said report that the sum of dollars can be borrowed for the term of years, with in- 93 If the guardian has really as- delay and the necessity of a report certained whether or not he can bor- of this matter to the court. This row the money and the rate of in- method is advisable when it can be terest, the facts may be so stated conveniently done, in the petition and thus avoid 1442 EQUITY PEOCBDURE. terest at the rate of per cent, per annnm, the court doth find that said terms are satisfactory and are hereby accepted and confirmed ; and it is hereby adjudged, ordered and decreed that said guardian be and he is hereby authorized and directed to execute a note for said amount, and to secure the same, he shall execute a mortgage on the lands hereinbefore in the bill and proceedings mentioned and described, for that purpose; and it is further adjudged, ordered and decreed that the said guardian shall use the money realized by such loan for the purpose of (here state in detail how the money shall ie ex- pended) j and the said guardian shall report his proceedings with reference to the execution of said mortgage, and the ex- penditures of said money as herein directed to a future term of this court. All of which is adjudged, ordered and decreed accordingly. No. 411. §1231. Appointing commissioners to make partition of real es- tate, and directing manner of partition. (After the style of the suit, and the proper recitals.) Upon consideration of which the court is of opinion and doth so adjudge, order and decree, that the parties to this suit are the owners in common in fee of the land in the bill and proceedings mentioned and described, and the court is further of opinion to and doth hereby decree that partition be made of the said real estate in the said bill and proceedings mentioned and described ; and that in making partition thereof the said real estate be so partitioned and divided that the defendant E L ]Sr shall receive as his share the three-fifths part thereof, and that the plaintiffs, V C S and E S N — ■ — each receive as her share the one-fifth thereof. And it is further adjudged, ordered and decreed that the commissioners hereinafter appointed in making partition of the said real estate do lay off and assign, by proper metes and FOEMS OEDEES AND DECEEES. 1443 bounds, the shares of said V C S and E S !N" together, assigning the residue of the tract, in like manner, to the defendant, E L K , if par- tition of the said real estate can be properly made in that way. A-nd it is further adjudged, ordered and decreed, and the commissioners hereafter appointed are hereby so instructed, that if it should appear that permanent and valuable improve- ments have been made upon the said land by either or any of the co-parceners, that the part so improved, if it can be done without injury to the others, be assigned to the improver there- of, without charging either or any of said co-parceners with the costs or value of such improvements. And for the pfurpose of making said partition the court doth hereby appoint — — , any of whom may act. And it is further adjudged, ordered and decreed that be- fore the said commissioners or any of them shall proceed to discharge their duties as such commissioners, that they,, and each of them, shall take an oath to faithfully and impartially make partition of the real estate in this cause in accordance with the terms and requirements of this decree ; and they shall return a report of what they shall do under this decree as such commissioners to a future term of this court, accompanying the same with a description, by proper metes and bounds, of the respective parcels allotted the co-parceners entitled to share in the partition of said real estate, together with all evidence which may be taken before them pertaining to the matter of said partition, and plats and deeds used, read and made in connection therewith. And it is further adjudged, ordered and decreed, that if the said commissioners shall determine that the said property is not susceptible of partition, they shall so report to this court, setting forth in such report the facts upon which they base their conclusion with reference thereto. All of which is adjudged, ordered and decreed accordingly.'* »« See Bingess vs. Marcum, 41 W. Va., 757, 24 S. E. Rep. 624. 1444 EQUITY PEOCEDUEE. ISTo. 412. §1232. Confirmiiig report of commissioners in makingf paxtition of the real estate. (After the style of the suit.) This caiise came on again this day to he heard upon the papers formerly read herein ; npin the former orders and de- crees made and entered therein ; upon the report of M. H., F. F. and W. W., the special commissioners heretofore appointed to make partition of the lands in the bill and proceedings men- tioned ; and was argued by counsel. And there being no ex- ceptions to said report and the court perceiving no just grounds of exception thereto, the said report and partition therein shown, are hereby ratified and confirmed. And it appearing from said report that there was allotted and assigned of the said lands, to A. B. the following tract desig- nated at lot ISTo. 1 bounded and described as follows : (here set out the descriptions hy metes and hounds). It is therefore adjudged, ordered and decreed that the said A. B. do take and hold in severalty and in fee the said land described as afore- said. And it further appearing from said report that there was allotted and assigned to C. D. out of said land the following piece or parcel of land known as lot ISTo. 2, and bounded and described as follows : (here set forth the description hy proper metes and bounds). It is also adjudged, ordered and decreed that the said C. D. do take and hold the said lot ISTo. 2, in severalty and in fee as hereinbefore described. (Here continue to set forth the various lots, numbering them properly and giving their metes and hounds until each has received his share. If there he rights of way allotted by the report of the commissioners, set them out hy proper description so that they may he correctly located as in- tended by the commissioners making partition.) And that the parties may have their various deeds duly en- tered of record, but being minors and incapable of executing deeds among and to each other, it is therefore adjudged, or- dered and decreed that J. M. R. be, and he is hereby appointed FOEMS ORDERS AND ]>ECREKS. 1445 a special commissioner, directed and empowered to execute sep- arate deeds to each of the said parties above named by proper metes and bounds with covenants of special warranty, to. be by him duly aclmowledged and delivered to the Clerk of the county court of this county for record, for which the said special com- missioner shall be allowed the siim of five dollars for each deed so executed by him, to be taxed as part of the costs in this cause. It is further adjudged, ordered and decreed that the costs of this suit be borne equally by all the parties, they being tenants in common and equally interested vyith reference to the partition and the costs attendant thereon. No. 413. §1233. Confirming commissioner's report in creditors' suit to enforce judgment liens, and appointing special com- missioner to sell land. (After the style of the suit.) This cause came on again this day to be further heard upon the papers heretofore read therein ; upon the former orders ^nd decrees entered therein; upon all the former proceedings had in said cause; upon the report of the commissioner in chancery, L D J , to whom this cause was here- tofore referred to take an account of the real estate OAvned by the defendant C D , and the liens existing thereon and their respective priorities, and was argued by counsel. And there being no exception to said report, and the court perceiv- ing no just ground of exception thereto, the same is hereby rati- fied and confirmed.* And as from said report it doth appear, the court doth ad- judge, order and decree, that the said C D is the owner of the following real estate situate in the district of , County of , and State of , consisting of two tracts, the first of which contains • acres, and is fully described iu 1446 EQUITY PROCEDUEE. said report, and the other of which contains acres, and is likewise described in said report. And as from said report it doth also appear, it is further ad- judged, ordered and decreed that the following are the liens and the order of their priority against the said real estate : First. The judgment in favor of I L for dollars, obtained in the court of County, in said State, on the ■ day of , 19 — , which now amoimts, in- cluding the interest thereon, to dollars. Second. The judgment in favor of M W (here desmhe same.) Third. (Here describe third lien, and so on until all the liens are thus set forth in the decree. ) It is further adjudged, ordered and decreed that the said C — — D , do, within thirty days from the rising of this court, pay unto the said I L , M W , (nam- ing all the lien holders), their said lien debts and judgments respectively, as hereinbefore ascertained and adjudicated, with interest thereon from this date until paid, and the costs of this suit ; and in default of such payment, it is further adjudged, ordered and decreed that said real estate be sold, or so much thereof as may be necessary, to pay off and discharge all of the said lien debts and judgments, according to their respective priorities as hereinbefore ascertained and adjudicated and the costs of this suit, at public auction io the highest bidder, at the front door of the court house of this county, upon the following terms, to-wit: (Here set out the terms of sale.) And for the purpose of making said sale, it is adjudged, ordered and decreed that C J H be, and he is hereby appointed a special commissioner, who shall, before making such sale, advertise the time, terms and place thereof for four successive weeks in the , a newspaper published .in said county, and by posting a notice thereof for a like period at the front door of the court house of said county, and shall give bond in the penalty of dollars with good security be- fore the Clerk of this court, conditioned for the faithful per- formance of his duties as such commissioner, and to accoimt FOKMS OKDEES AND DECEEES. 1447 for and pay over all moneys which may come into his hands by virtue of his appointment as such commissioner, and what he shall do hereunder, he shall report to the next term of this court. No. 414. §1234. Filing cross-bill and appointing receiver, as therein prayed for, (After the style of the cause.) Upon a cross-bill filed in the above entitled cause. This day came the said J F V upon leave of the court first had and obtained for the purpose, and filed here in open court his cross-bill in the above cause, and upon his motion and in conformity to the prayer of the said cross-bill, it is adjudged, ordered and decreed that B ¥ M , the Sheriff of the County of K , who is hereby appointed a special receiver for that purpose, is hereby authorized to take into his possession* and control the oil now on hand heretofore produced or hereafter to be produced from the said well in said cross-bill mentioned and to safely keep the same, subject to the further order of the court, and that he do at such times as in his judgment shall be necessary or for the advantage of the parties interested, proceed to sell said oils, or so much thereof as he may deem proper, on the best terms he can, either on credit or for cash, and out of the proceeds of such sale, he do pay the expenses of running said well and transporting and marketing said oil, and retain the residue thereof subject to the further order of the court ; and in case the said special re- ceiver shall sell any of the oil upon credit, he is required to take negotiable paper therefor, with good secxirity, payable at a time or times certain not to extend beyond the next regular term of this court. And before entering upon his duties as such spe- cial receiver, the said B F M shall file with the Clerk of this court bond, with security to be approved by said Clerk in the penalty of — — dollars, conditioned for the faith- 1448 EQUITY PEOCEDUEE. ful discharge of the duties of his said office, and said cross-bill is sent to rules, and the plaintiff has leave to sue out proper process thereon."^ No. 415. §1235. Appointing receiver to rent real estate. (After the style of the suit.) This day the plaintiff in the above styled cause, having given due notice of this motion, moved the court for the appointment of a receiver, and supported his said motion by affidavits, which were replied to by counter affidavits; and after considering the said application the court, on this, the day of , 19 — , hereby appoints W J C special receiver in the above cause, vs^ho is hereby authorized and reqiiired, after giv- ing bond in the penalty of dollars, conditioned for the faithful performance of his duties, to take charge of the real estate and farm in the bill and proceedings in this cause men- tioned and described, and to rent out the same for the period ending on the day of , 19 — , upon the following terms : (Here set forth the tei-ms) ; and the defendant B H is hereby directed and required to deliver possession of the said real estate to the said receiver. All of which is ad- judged, ordered and decreed accordingly."" No. 416. §1236. Appointing receiver in vacation — general form. A B- vs. j. In Chancery. C D- Pending in the Circuit Court of County, and State of . "o The above form is taken from "<■< Dunlap vs. Hedges, 35 W. Va. W. Va. 0. & 0. L. Co. vs. Vinal, 293, 13 S. E. Rep. 6.56; Smith vs. 14 W. Va. 654, 655. Butcher, 28 Gratt. 144. FORMS ORDERS AND DECREES. 1449 This day the plaintiff, by counsel, moved the undersigned Judge of said court in the vacation thereof, to appoint a special receiver of the personal property in the bill and proceedings in this cause mentioned and described. And the court being sat- isfied from the bill and exhibits, and affidavits filed herein of A B and W E. , that a proper ease for the appointment of a receiver has been thus shown, and reasonable notice of this application having been given to said C D , it is hereby adjudged, ordered and decreed that R O C be, and he is hereby appointed a special receiver for said property, and is authorized to take possession thereof. and sell said property in bulk or at retail, as in his discretion may be proper, after an inventory thereof has first been taken by two disinterested persons. But before said special receiver shall act under this decree he shall give bond with sufficient se- curity to be approved by the Clerk of this court, in the penalty of dollars, conditioned for the faithful performance of his duties as such receiver. (Here an order of injunction may he added if the case should require it, as presented by the hill, enjoining the defendant from interfering with the -property or attempting to make disposition thereof.) F A G , Judge of Circuit Court of County, and State of — ■ — . The Clerk of said court will enter the above as a vacation order as of the date of the day of , 19 — . F-^ A G ." Pending a chancery suit to sub- pra. For the general principles re- ject the defendant's real estate to lating to the appointment and du- the discharge of liens thereon, the ties of a receiver see the author's court has a. discretion to sequester Equity Principles, sees. 137-148. the rents and profits of said real »' See note to sec. 1235; Krohn estate, and appoint a receiver for vs. Weinberger, 47 W. Va. 127, 34 the same. Grantham vs. Lucas, 15 S. E. Rep. at p. 748. W. Va. 425; Smith vs. Butcher, su- 1450 EQUITY PEOCEDUEE. ISTo. 417. §1237. Of sale in a suit where the property of principal and surety may be sold. (After style of' suit and proper recitals.) And there being no exceptions to the report of commissioner J B , and the court perceiving no just ground of ex- ception thereto, it is therefore adjudged, ordered and decreed that said report be, and the same is hereby, ratified and con- firmed. And it appearing from such report that the defendant E F , the joint judgment debtor witb G H , is only a surety to the said G H — — , it is further adjudged, ordered and decreed that the special commissioner hereinafter appointed to make sale of the property in the bill and proceed- ings mentioned, shall first offer for sale the property of the said G — — H , the principal judgment debtor ; and if the proceeds thereof shall be sufficient to pay off and discharge the costs of this suit, and the liens hereinafter ascertained, then sale shall not be made of the real estate of the said E E — — ; but if the proceeds of such sale be not sufficient for that purpose, that the lands of the said E E , or so much thereof as may be necessary to pay the residue of such costs and judgment liens, shall be sold by the said special commissioner. (Continue the decree mutatis mutandis, as in- dicated in No. Ji-lS, from the *.)^^ No. 418. §1238. Of sale against lands of decedent. (After the style of the suit and proper recitals proceed as follows:) And there being no exception to the report of commissioner J H , to whom this cause was referred by a former 83 See Ewing vs. Ferguson, 33 Gratt 548; Dillard vs. Krise, 86 Va. 410, 10 S. E. Rep. 430. J?OEJVrS ORDERS AND DECREES. 1451 decree, and the court perceiving no just ground of exception to said report, the same is ratified and confirmed. And it ap- pearing from said report that there is now in the hands of E F — — , the personal representative of the decedent, C — — D , the sum of dollars, available personal as- sets of the estate of said C D to apply upon the pay- ment of his debts, it is therefore adjudged, ordered and de- creed, that the said sum of ■ dollars be and the same is hereby applied to the payment, 'pro^ rata, of the following judg- ment liens, which are of equal dignity and priority with each other': (Here specify the said judgment lierxs) . And it further appearing from said report that there is no other personal property or personal assets available for the pay- ment of the debts of the said decedent, it is adjudged, ordered and decreed that the real estate of the said decedent, or so much thereof as may be necessary, be taken and treated as as- sets, and be applied to the discharge of the indebtedness of the said decedent above-named. And from said report it further appears that the said dece- dent died the owner in fee simple of the following estate: (Here describe the same). And it further appears from said report that the first liens on said real estate, and of equal dignity with each other, are the following: (Set forth the names of the persons holding the liens, the nature thereof, their dates and respective amounts) ; and the said liens are valid and subsisting liens upon the said real' estate, and are the first liens thereon. And it further appears from said report that the second lien upon said real estate (here describe the lien, by giving the naone of the party holding it, the date and amount). And it further appears from said report that the third lien upon said real estate (here give the name of the lienholder, and nature thereof, and the amount). It is therefore adjudged, ordered and decreed that the per- sonal representative of the said decedent or the said (here nam^ ing the defendants ) heirs at law of the said decedent, do pay unto the said (here name all of the lienors, amounts, etc., par- 1452 BQTJIXY PKOGEDUEE. ticularly specifying the same), within days from the rising of this court, and in default thereof that said lands bo sold, or so much thereof as may be necessary, to pay off and discharge the said liens and the costs of this suit, and for the purpose of making said sale L J is hereby appointed a special commissioner, who shall advertise the time, terms and place of such sale for four successive weeks in some news- paper published in this county, and by publishing notice there- (if for a like period at the front door of the court house of this county ; said sale to be upon the following terms : (Here set forth the terms). (Here conclude by requiring bond of the commissioner, and directing him to report at a future term of the court, as indi- cated in No. 413.)'" No. 419. §1239. For the specific performance of a contract for the sale of real estate. (After the style of the suit and the usual recitals.) Upon consideration whereof the court is of opinion that the plaintiff is entitled to the relief prayed for in his said bill, inasmuch as it fully appears to the court that the contract and agreement in the bill and proceedings mentioned, has been duly proved, and that the matters embodied in said contract may be fully performed and executed on the part of the said defendant, and that the said plaintiff is entitled to have the same en- forced. It is therefore adjudged, ordered and decreed that the said defendant C D do execiite a good and sufBcient deed, conveying to the plaintiff A — — B , with general warranty and the usual covenants of title, the land in the bill and proceedings mentioned, according to the metes and bounds in the said contract and agreement laid do^vn and set forth, bearing date on the day of — — , 19 — — , and filed as 00 Danserfield va. Smith, 83 Va. 81, 1 S. E. Rep. 599. FOEMS ORDERS AND DECEEES. 1453 " Exhibit A " with plaintiff's bill. And it is further adjudged, ordered and decreed that the said C- — ■ — D do make, ac- knowledge and deliver to the said plaintiff such deed within days from the adjournment of this court, and in default thereof that then R L , who is hereby appointed a spe- cial commissioner for that purpose, and duly empowered there- to, do execute and deliver for record to the plaintiff, A B , said deed, conveying said land, for which he shall be allowed a fee of five dollars to be taxed as part of the costs of this suit ; and it is further adjudged, ordered and decreed that the plaintiff do recover of and from the defendant his costs, in and about the prosecution of his suit in this behalf expended, including a statute fee of twenty dollars/"" No. 420. §1240. For specific performance after the writing has been re- formed. (After the style 'of the suit and the Tpro-pAr recitals.) Upon consideration whereof it is adjudged, ordered and de- creed that the agreement signed by K" P and J E , bearing date on the day of , 19 — , a copy of which is filed with the plaintiff's bill as " Exhibit A," be, and the same is hereby reformed by the insertion of the words " for the term of ninety-nine years, renewable forever," after the word " lease," (in the first line of said agreement) , so that the same will read as if originally written " We hereby agree to lease for the term of ninety-nine years, renewable forever, to M M -, trustee," "etc. And it is further adjudged, ordered and decreed that the plaintiff is entitled to relief in and to specific performance of «") See Sands' Suit in Eq. (2nd tion of the law of specific perform- ed.) 590; Seton on Decrees, 644, ance, see the author's Equity Prin- 668; Ambrous Heirs vs. Kellar, 22 eiples, sees. 396-410. Gratt. 778; for a general considera- 1454 EQUITY PROCEDUKE. the said agreement to lease as aforesaid reformed, and that the defendants do, and they are hereby directed and required, to accept and to join in the execution and acknowledgment of a lease, to be duly executed, acknowledged and tendered to them by the plaintiff, of the property described in plaintiff's bill, a copy of which is therewith filed as an exhibit, for the term of ninety-nine years, beginning on the day of , 19 — , and containing all the covenants and provisions set forth and contained in said " Exhibit A," excepting only the covenant or stipulation for the purchase or conveyance of the reversion in fee of the said premises before the day of , 19 — , upon certain terms in said " Exhibit A " expressed, the period for the performance or execution of the same having already gone by, said lease to be executed with the consent of F C Y , to be attested by his signature to the same, and that the defendants E H C and E, B , administrators of J — — E , be required only to enter into such covenants and stipulations in the case as will bind the estate of the said J E in all particulars, and not themselves personally. And inasmuch as it appears that there is a large amount of rent in arrear to the plaintiff, it is accordingly further ad- judged, ordered and decreed that this cause be continued until the next term of this court, in order to enable the plaintiff to obtain further evidence touching the amoimt of rents so in arrear, and that the cause be then determined on the evidence now already in that cause together with such other demands as may be hereafter put in.^"^ 'No. 421. §1241. Upon the verdict of a jury upon an issue out of chancery. (After the style of the suit.) This cause came on this day to be further heard upon the papers heretofore read in this cause; upon the former orders 101 The foregoing form will be found in Thornton's Ind. Prac. Forms, 1555, 1556. FORMS OKDEES AND DECEEES. 1455 and decrees entered therein; upon the verdict of the jury ren- dered upon the issue heretofore directed in this cause and now filed herein; and upon the argument of counsel. And it now appearing to the satisfaction of the court that the land in the bill and proceedings mentioned and described, conveyed by J B , the father of the plaintiffs named in the bill, to the defendant, C D , was to be by him, the said C D •, conveyed in trust for the children and heirs at law of the said J B , the plaintiffs named in the bill in this cause, it is therefore adjudged, ordered and decreed that the said C D be and he is hereby declared to hold the said land in trust for the said plaintiffs ; that the said children are the real and substantial owners thereof, and are now en- titled to hold the same in fee simple. (Proceed further in the decree hy requiring conveyance of the title from said C D to the plaintiffs; directing an issue for an action for the rents, issues and -profits of the land on the pari of the said C D , and making any further or other provisions that may he necessary to complete the relief.) No. 422. §1242. Upon verdict of jury devisavit vel non finding for the will. (After the style of the suit.) This cause came on this day to be further heard upon the pa- pers heretofore read therein ; upon the former orders and de- crees made and entered therein ; upon the verdict of the jury upon the issue .devisavit vel non, heretofore awarded in this cause, and now filed in the papers hereof; and upon the argu- ment of counsel. And it appearing from the said verdict that the paper writing probated in the County Court of Coun- ty, in the State of , on the day of , 19 — , was and is the will of J — — J W — — , deceased, it is there- fore adjudged, ordered and decreed that the paper writing in 1456 EQUITY PBOCBDURE. the bill and proceedings mentioned and described, a copy of which is filed with the plaintiff's bill as " Exhibit A," and probated in the County Court of County, and State of , on the day of , 19 — , be adjudged to be and is the true last will and testament of the said J J W , deceased ; that the probate thereof is hereby truly aj>- proved, and the said will solemnly declared to be duly probated. And it is further adjudged, ordered and decreed that the defendants in this suit do recover of and from the plaintiffs, contestants of the said will, their costs in and about their defense of the said will in this behalf expended, including a statute fee of dollars. No. 423. §1243. Upon verdict of jury on an issue devisavit vel non find- ing against the will. (After the style o-' the suit.) This cause came on this day to be heard upon the plaintiff's bill ; and answer of the defendants thereto, and general replica- tion to said answer ; and the court having heretofore directed an issue at law to be tried by a jury at the bar of this court to try and determine whether the writing referred to in the pleadings, and purporting to be the last will and testament of E F , deceased, is the last will and testament of the said E — ■ — ■ F , deceased, or whether any part thereof is such last will and testament; and the jury, to-wit, L M , and eleven other good and lawful men, having been selected and sworn to try the said issue, and the jury having heard the evidence of the respective parties, and the argument of coiiu- sel thereon in open court, and under the direction of the court; and having found by their verdict that the said writ- ing, probated in the Clerk's office of the County Court of the County of , and State of , and bearing date on FOEMS OKDEES AND DKCEEES. 1457 the day of , 19 — , is not the last will and testament of the said E F , deceased, nor is any part thereof the last will and testament of the said E E , deceased ; and that the said E E , at the time of the execution and attestation of the said writing was not of sound mind and memory; nor was the said paper writing the free and volun- tary act of the said E E at the time of its execution, hut the result of undue influence exerted upon him at the time said writing was made, whereby the free agency of the said E E was destroyed ; and the defendants having inter- posed a motion to set the said verdict aside and for a new trial, and the court having heard the grounds and argument of counsel in support thereof, and being fully advised in the premises, doth hereby overrule the said motion. It is, therefore, adjudged, ordered and decreed that the said paper writing, probated in the Clerk's office of the County Court of the County of , and State of , on the day of , bearing date on the day of , 19 — , and purporting to be the last will and testament of the said E E , deceased, is not, nor is any part thereof, the triie last will and testament of the said E E , .deceased ; and that the probate thereof in the Clerk's office of the County Court of said county, and the proceedings thereimder, be, and the same are hereby set aside, and the same are hereby declared to be null and void. It is further adjudged, ordered and decreed that the defend- ants (naming them), do pay unto the plaintiffs their costs in and about the prosecution of their contest in this behalf ex- pended."" 1^0. 424. §1244. Setting: up a lost will. (After the style of the suit.) This day Hon. E A G , the Judge of this court, vacated the bench because of being disqualified from 102 The above form is taken from substantial parts of the one appear- one found in Puterbaugh's Ch. PI. ing in the record of Dower vs. and Pr. (3rd ed.) 676, 677; and the Church, 21 W. Va. 23. 1458 EQUITY PEOCEDUEE. sitting in this cause, find thereupon Hon. W E G , a practicing attorney of this court, heretofore duly elected a special judge to try and determine the matters in controversy in this suit, again went upon the bench. And now, this cause coming on to be finally heard upon the former orders and decrees herein made and entered, upon the process duly served upon the home defendants, and the order of pub- lication duly executed as to the non-resident defendants and the unknown heirs-at-law of J J W , deceased, the orders and proceedings duly had at rules, upon the hill and amended bill, the separate answer of A M , and the general replication thereto, the joint and several answers of E S and J S S , her husband, C W , H W , Gr B R , C S , C K and J B and the plaintiffs' replica- tion in writing thereto, the separate answer of J M and general replication thereto, the joint and several rejoinder of E S and J S S , her husband, C W , H W , G— B E , C S , C E — — • and J — — B to the replication in writing of the plaintiffs, upon the bill taken for confessed and set for hear- ing as to all home defendants failing to plead, answer or demur to the bill or amended bill of complainants, upon the depositions taken and filed in the cause, upon the plaintiffs' suggestion of the death of the defendant, J M S , and they asking that the suit abate as to him, and the said suit is hereby abated as to him, the said J M S , and neither the plaintiffs or, defendants asking an issue to be directed in this cause, but submitting the decision of all matters arising upon the record to the court, after argument of counsel for both plaintiffs and defendants and a careful examination of the papers in the cause, the court is of opinion and doth so adjudge, order and decree that in the year 18 — , as set out in the plaintiffs' original bill, the decedent, J J W , being of sound mind and memory, did make and publish his last will and testament in writing, to which he subscribed his name as and for his last will and testament in the presence of FOEMS OEDEES AND DECEEES. 1459 R S and W D , the said E S and W D , also subscribing tlieir names to said writing as witnesses thereto at the request of said J J W , deceased, in. his (the said testator's) presence, and they, the said witnesses, subscribing their names thereto as witnesses in the presence of each otlier, and that ,said last will and testament was in existence at the time of the death of said testator. And the court doth further find that since the death of said testator, said J J W , that said last will and tes- tament so made in writing and published by him as hereinbe- fore ascertained and adjudged, has been destroyed by burning, and that its contents can only be established by parol evidence, and the plaintiffs so desiring it, the court doth find from the pleadings and proofs in this cause, and doth so adjudge, order and decree, that the said will doth contain the following devises and bequests and none others. , " First. After the payment of all the testator's just debts and funeral expenses, he, the said J J W , by said last will and testament, devised and bequeathed all his estat«, both real and personal, to his wife, A W , for and during her natural life. " Second. After the death of his wife, A W , he, the said J J — ■ — W , by said last will and testament, devised and bequeathed all the remainder of his. estate, both real and personal, to the plaintiffs, T ■ D and A E — ■■ — C , and their heirs forever, in equal moieties, viz. : one-half of said remainder after the termination of the life estate of said A W to said T D and her heirs forever, and the other one-half of said remainder after the termination of the life estate of said A W to the said A E C and her heirs forever. " Third. And the said testator, the said J J W , nominated by his said last will and testament the said A W — — as his executrix desiring that she be not required to give any bond in qualifying as such executrix." And the court doth adjudge, order and decree that a certi- fied copy of this decree be made out by the Clerk of this court 1460 EQUITY PKOCEDUEE. and hj him transmitted to the Clerk of the County Court of this County to be by him, the said Clerk of the County Court, duly recorded as and for the last will and testament of said J J W , deceased with leave to the proper person to qualify thereunder as the personal representative of said tes- tator. And it is further adjudged, ordered and decreed that the plaintiffs do recover of the defendants their costs in this be- half expended, including a statute fee of $ ( dollars), and leave is hereby given to sue out execution therefor if they or any of them may so elects And the defendants desiring to appeal from this decree, it is ordered that the same be suspended for days from the rising of this court; but this order of suspension is to be of no effect until the defendants, or some of them, shall enter into bond with good security before the Clerk of this court, in the penalty of $ — ■ — ( dollars), conditioned to pay all the costs and damages that may be sustained by any one by reason of the suspension of this decree should no appeal and superse- deas be allowed thereto by the Supreme Court of Appeals of this State within the time aforesaid. The defendants moved the court to exclude the deposition of A S , which the court refused to do, but declined to consider so much of it, as relates to communications had be- tween her and her husband, J J W .^"^ Ko. 425. §1245. For the construction of a will. (After the style of the cause.) This day came the plaintiffs, by their counsel, and filed their bill; and the defendants appeared, by counsel, and filed their answers ; to which the plaintiffs, by counsel, reply generally. 103 This form is taken from the one found in the record of Dower vs. Seeds, 28 W. Va. 113. FORJIS • OEDEES AND DECEEES. 1461 Whereupon, this cause being docketed by consent of parties, by counsel, the same came on to be heard by like consent, on the bill, answers, with replications and exliibits filed, and was ar- gued by counsel. On consideration whereof, the court is of opinion, and doth adjudge and decree, that according to the true construction of the will of J D M , deceased, the trustees thereby contemplated for the benefit of his grand- daughters, have power from time to time, to change the invest- ment of the trust subject, that the sum mentioned in the bill, of dollars, with legal interest thereon, from the day of , 19 , is a part of • that trust subject; if the com- plainants, J B M and D M , had been duly appointed trustees, for the benefit of J — '- — M , as well as the other granddaughters of the testator, they might lawfully require payment of the same from the defendant, and he would not be bound to supervise their acts or see to the ap- plication of the trust fund, or incur any danger from such pay- ment, other than that (if any) which may arise from the acci- dent of the loss of the bond. Wherefore, the court doth ad- judge, order and decree, as follows : First That the- said J B M and D ■ M , be, and they are, hereby appointed joint trustees for the said S M , jointly with the other granddaughters of the said J D M , deceased, imder his will, and that they be, and are, hereby invested with all the power, au- thority and discretion which the said will would have conferred on them, had they been expressly named as trustees in the said will ; and that all their actings and doings, assuming to act as trustees for the said S M — jointly with the other grand- daughters aforesaid, so far as the same have been within the lim- its of their authority as such trustees, for such other grand- daughters, do stand approved and confirmed in the same man- ner, and to the same extent as if they had been previously ap- pointed trustees for the said S M , by a court of com- petent jurisdiction, and in a proceeding to ,which she was a party; and that the said trustees be, and they are, hereby re- quired, before proceeding to execute said trust, to enter into 1462 EQUITY PEOCEDUEE. bond, in the Clerk's office of this court, with good and sufficient security, in the penalty of dollars, conditioned for the faithful performance of their duties as such trustees, for all the said granddaughters of the said J D M , de- ceased. Second. — That the defendant, C E , do pay unto the hank, to the credit of this cause, subject to the order of this court, the said sum of dollars, with legal interest thereon from the said day of , 1900, until such payment. Third. — That the complainant, D M , and the de- fendant, H W M , do execute a deed of release, referring to this decree, and releasing and re-conveying unto the said defendant, C R , the property conveyed by the deed made the day of , 19 , and admitted to record in the Clerk's, office of County Court, on the • day of , 19 , between the said C E and M S — — , his wife, of the first part, D M and H W M , of the second part, and J D M , of the third part, and acknowledge said deed, so that it may be duly admitted to record ; and when said deed shall be deliv- ered to the said R , or to the Clerk of this court for him, and the fact of such delivery certified, by whichever of them shall receive the same upon an official copy of this decree, that then the said J B M and D M , as trus- tees for the granddaughters of the said J D M , deceased, be, and they are hereby authorized to check on the — — ^bank, on an attested copy of this decree, for the money above directed to be deposited therein to the credit of this cause. Fourth. — That the parties respectively have leave to apply hereafter to this court for any other or further order that may be necessary to carry out and fulfil the foregoing decree, and that the said parties who are adults respectively pay their own costs of this suit.^"* 101 The above form ia taken from Matthews' Forms, 239-241. MISCELLANEOUS FOEMS. 1463 CHAPTER LII. MISCELLANEOUS FORMS. Sec. 1246. Notice of lis pendens. Sec. 1247. Kxceplions to delivery liond talcen by the officer levying an attachment. Sec. 1248. Notice of motion under Virginia statutes to quash an attach- ment in vacation. Sec. 1249. Affidavit to require plaintiff to elect whether she will proceed at law or in equity in one of two suits for the same cause, one pending in equity, the other at lawj Sec. 1250. Order presenting affidavit and making motion to require plain- tiff to elect whether she will proceed at law or in equity in one of two suits for the same cause, one pending in equity, the other at law. See. 1251. Of verdict on intervention in atttachment. Sec. 1252. Bill by committee of lunatic to sell lands of the lattter, setting out specific bids made for the same. Sec. 1253. Decree in divorce suit restoring plaintiff to maiden name. See. 1254. Decree against personal representative of the estate of a de- cedent. Sec. 1255. Decree directing issue to determine question of fraud and mental incapacity. Sec. 1256. Order dismissing bill for plaintiff's failure to give security for costs. Order for leave to file a bill of review. Caption for decree or order, with title of cause. General form of an order. General form of a decree. The recitals of a decree. Order for revival of suit. Final decree for dissolution of partnership, and confirming report made in the cause. Order making petitioner party to the suit. Decree for partition and dower, and appointing commissioners to assign dower and make partition in same case. Of exceptions to a deposition as an entirety. Of exceptions to certain parts of a deposition. Of injunction bond. Of bond of injunction to judgment at law. Sec. 1257. Sec. 1258. Sec. 1259. Sec. 1260. Sec. 1261. Sec. 1262. Sec. 1263. Sec. 1264. Sec. 1265. Sec. 1266. Sec. 1267. See. 1268. Sec. 1269. 1464 EQUITY PEOCEDUEE. Sec. 1270. Of order removing cause to anotlicr county because improper for Judge to preside at the trial. Sec. 1271. Order awarding injunction restraining and inhibiting laborers and members of labor organizations from molesting the plaintiff in the conduct of his business. See. 1272. Form of petition for an attachment for disobeying an in- junction. See. 1273. Form of order to show cause why an attachment should not issue for disobeying an injunction order. Sec. 1274. Form of an answer to a rule to show cause why a party should not be attached for contempt. Sec. 1275. Form of order dismissing suit agreed. Sec. 1276.^ Form of an order requiring plaintiff to elect whether he will proceed at law or in equity. Sec. 1277. Form of instrument making election to proceed in equity when action at law and suit in equity pending for same cause. Sec. 1278. Short form of decree on an issue out of chancery entered upon the verdict of the jury. Sec. 1279. Caption of depositions, examination of witnesses, adjournment, and attestation. See. 1280. Form of affidavit authorizing an order of publication against a corporation which has failed to comply with sec. 24. chap- ter 54, of the Code of West Virginia. Sec. 1281. Form of order of publication where corporation has failed to comply with section 24 of chapter 54, Code of West Virginia. Sec. 1282. Form of order made in vacation directing the payment of ali- mony, pendente lite, and awarding an injunction restraining the husband from incumbering or disposing of his property. Sec. 1283. Decree for specific performance, striking out one plea in abate- ment, making up issue on another, and overruling plea in abatement, upon a submission of the issue to the court. Sec. 1284. Order of the Circuit Court appointing receiver after an appeal to the Supreme Court of Appeals, and during the pendency of such case on appeal. No. 426. §1246. Notice of lis pendens. A B- vs. -D- Tn Chancery. Pending in the Circuit Court of the County of and State of . The object of the above entitled siiit is to obtain a decreq against the said C D in favor of the said A MISCELLANEOUS FORMS. 1465 B — ■ — upon a certain note held by the said A — — B — — against the said C D and to attach and sell the follow- ing real estate in order to pay off and discharge said decree; which real estate is located on or near the waters of in the District of and the County and State aforesaid and contains about, as nearly as can be ascertained, acres of land. The name of the party or person whose estate in said land is intended to be affected by the foregoing suit is C D A B , This day of , 19- By Counsel. ISTo. 427. §1247. Exceptions to delivery bond taken by the officer levying an attachment. (After the style of the suit and the court i-i which it is pend- ing.) Exceptions of the plaintiff made to the bond taken by the of- ficer levying the attachment in this suit. The plaintiff in the above entitled cause hereby excepts to the bond taken in this cause for the return of the property to the defendant, bearing date day of , 19 , and which was returned by the officer to the Clerk of the Circuit Court of County and State of , for the following rea- sons and upon the following grounds : First. Because (here set forth the reasons and grounds of the exceptions.) Second. Because (here set forth the further reasons and grounds of the exceptions.) Third. Because (here set forth the other reasons if any, and continue in this way until all the grounds for exceptions to the bond are set forth.) 1 The foregoing ia taken from the Statutes of W. Va. Code, Ch. 139, sec. 13. 1466 EQUITY PEOCEDUEE. The plaintiff therefore and for the reasons above given, hereby excepts to the said bond and prays that his said excep- tions may be sustained, and that the said officer be ruled to file a good bond with suflicient security to be approved by this court, on or before a day certain to be prescribed by this court. A B , C J L — — , By Counsel. Solicitor for the Plaintiff.^ No. 428. §1248. Notice of motion under Virginia statutes to quash an at- tachment in vacation. A B- vs. C D- NOTICE. In Chancery. Pending in the Circuit Court in the County of , State of . The plaintiff in the above entitled cause is hereby notified, that the undersigned defendant therein will move the Hon- orable J S D , Judge of the said court in the va- cation thereof at his chambers at —. , in the County and State aforesaid on the day of , 19 — — ■, to quash the at- tachment issued in the above entitled cause and levied upon the property of the said defendant as shown by the return on said attachment; that he will ask the said Judge to hear testi- mony to be then and there introduced and otherwise show that said attachmeni sufficient cause. said attachment was issued on false suggestions and without D- E K . L , By Counsel. Solicitor for the Defendant. 2 The foregoing form is predi- see. 11, and Va. Code, 1887, sec. cated upon the provisions of the 2973. Statutes of W. Va. Code, Ch. 106, MISCELI-ANEOUS FOEMS. 1407 No. 429. §1249. Affidavit to require plaintiff to elect whether she will proceed at law or in equity in one of two suits for the same cause, one pending in equity, the other at law. State of , County of , ss: Mrs. F. E. N 1 vs. |- In Chancery. I. V. N and others, ! Pending in the Circuit Court of County, State of Before the undersigned authority this day personally aji- peared I. V. IST , who, after being by me first duly sworn, says that he is the I. V. IST , one of the defendants mentioned in the plaintiff's bill filed in the above entitled cause ; and that the object of the above entitled suit is to obtain a decree of payment of two notes under seal, as in said bill mentioned and described. This affiant further says that the said chancery suit against this defendant, as above stated, was brought on the day of , 19 , and is still pending in the said Circuit Court undetermined. This affiant further says that on the day of , 19 , the said Mrs. F. E. IST— — , the same Mrs. F. E. ]Sr , named as plaintiff in the said suit in chancery, brought her action at law against this defendant upon the same notes under seal as those upon which the said chancery suit above named is brought ; that one of said notes is in the principal sum of $ — ■ — , and bears date ^^, , and the other of said notes is in the principal sum of $ , bearing date , ■ , and each of which is signed by this affiant as the maker thereof; and that the said action at law brought as aforesaid on the day of , 19 , is still pending in this court and undetermined. Affiant further says that he is advised, and so states, that the plaintiff, Mrs. F. E. IST , cannot proceed in. separate 1468 EQUITY PEOCEDURE. suits for the same cause of action in a court of equity, and es- pecially can she not proceed for the same cause in a court of law and in a court of equity at one and the same time, upon one and the same cause of action, as she is seeking to do here in the said Circuit Court against this affiant as the sole defend- ant in the law suit, and as the principal defendant in the said chancery suit. Affiant therefore asks that a rule be awarded returnable with- in a reasonable time to be prescribed by the said court, and served upon the said plaintiff, Mrs. F. E. X , who is a non-resident of this State, in the manner provided by law, to ' show cause, if any she can, why she should not be required to elect whether she will prosecute and proceed to a final determi- nation in the said chancery suit or in the said action at law, at her option, and that she be required to make such election be- fore this defendant shall be put to the cost and inconvenience- of making defense or pleading to both or either of said suits. Taken, sworn to and subscribed before me, this the day of , 19 . Notary Public' No. 430. §1250. Order presenting affidavit and making motion to require plaintiff to elect whether she will proceed at law or in equity in one of two suits for the same cause, oae pending- in equity, the other at law. Mrs. F. E. N vs. I. V. N and others. - In Chancerv. This day the defendant, I. V. N , presented to the court his affidavit setting forth the pendency of an action at law in 3 This form is based upon the case of Williamsen vs. Paxton, 18 Gratt. 475. MISCELLANEOUS FOEMS. 1469 this court by the said. Mrs. F. E. IST against him, the said I. V. ISr , as the sole defendant therein, upon two notes un- der seal, one in the principal sum of $ , bearing date , and the other in the^ principal sum of $ ; bearing date - — ■ — , , and being the same identical notes upon which the said chancery suit is brought, and for which a decree is sought to be obtained in the said chancery cause against the said I. V. IST ; and thereupon the said I. V. N , moved the court for a rule against the said Mrs. F. E. Jf • to be served on her, returnable at a time to be prescribed by the court, requiring her to show cause, if any she can, why she should not be required to elect as to which one of the said suits, whether the action at law, or this suit, she will prosecute, and in which she will proceed further.* No. 431. §1251. Of verdict on intervention in attachment. (After the style of the suit.) This cause came on again this day to be heard upon the pa- pers formerly read herein ; upon the former orders and decrees made and entered therein; upon the issue heretofore directed in this cause to be tried by a jury at the bar of the court and upon the verdict of the jury this day returned therein, in the words and figures following: " We, the jury, find that the peti- tioner, P JI S , has no lien upon the property, or any of it, Jevied upon by the Sheriff of H County an the attachment sued out by W H S in this cause, against the estate of R L D .* * See note to sec. 1249. from the case of Starke vs. Scott, B The foregoing form is taken 78 Va. at p. 183. 1470 EQUITY PEOCEDUEE. No. 432. §1252. Bill by committee of lunatic to sell lands of tte latter, setting out specific bids made for the same. (After the caption and commencement.) I. That your orator was, on the day of , 19 , duly appointed, and on that day duly qualified, as the commit- tee of A E G , who has been, since 18 , and still is, insane, and confined in the hospital for the in- sane ; that C L G , a sister of the said lunatic, was first appointed her committee, and thereafter died ; whereupon another sister, A M G , qualified as her commit- tee, who also thereafter died, when your orator was thereafter appointed, as above stated. II. That one A B departed this life in the year ; leaving a will, a copy of which is filed herewith, marked " Exhibit A," and made part hereof, whereby she, said testa- trix, devised the residuum of her estate to her four nieces, of whom said A E. G is one, as follows : (Here set out the clause referred to, in said will.) III. That by the said will the said A B devised to the said A E G the following parcels of land, situate in R , in the State of , described as follows : (Here set out a brief description of the various parcels of land.) IV. That the said lunatic has three sisters, C J. , A M and E C G , who undertook to convey away the said several parcels of land, and the same have been conveyed by regTilar chain of conveyances by them, and are now in the possession of the following persons : Lot Xo. 1, of W— H— P-.— ; Lot No. 2, of E D T M ; Lot No. 3, of the E^— , F & P & E & P E E C Company ; Lot No. 4, of W H P ; and Lot No. 5, of L L -. V. That the foregoing is all of the property of every kind and character whatsoever, belonging to the said lunatic. "VI. That the said W H P is willing to pur- chase the entire interest of the said lunatic in and to said Lot MISCELLANEOUS FORMS. 1471 No. 1, and pay therefor tiie price of dollars, the same to be in full satisfaction of all claims for past rents and profits, or otherwise ; that the said E D T M is willing to purchase all of the interest of the said lunatic in Lot No. 2, at the price of dollars; that the said E , Y and P & E & P K K C Company is willing to purchase all the .interest of the said lunatic in Lot No. 3 at the price of dollars ; that the said W H ■ P is willing to purchase all the interest of the said lu- natic in Lot No. 4, at the price of dollars; and that the said L — ■ — L is willing to purchase all the interest of said lunatic in Lot. No. 5, at the price of dollars ;• but that the said several purchasers are only willing to purchase said interest of said lunatic in case they can obtain a good and perfect title to said land and premises, which they are advised can be done by suit of this character. VII. That a sale of said lands and premises belonging to said lunatic would promote her interests at the prices and to the persons above named, for the following reasons : (Here set forth the facts showing it to he to the interest of said lunatic to sell the said land). VIII. That the rights of no person would be violated by a sale of said real estate ; that O — — G , one of the defend- ants hereto, is the only heir of the said lunatic in the event of the death of the said lunatic, he, the said O G , her surviving.^ IX. That the said parties propose to purchase the said land, as to the payment of the purchase money, upon the following terms: (Here set forth the terms of purchase proposed as to each parcel of land, made hy the respective purchasers. ) Your orator therefore prays that a guardian ad litem be ap- pointed for the said lunatic ; that the said guardian ad litem, be 6 The above form is taken from ute of Virginia. In West Virginia Palmer vs. Garland, 81 Va. 444. it is only necessary to allege the The allegation that G is names of the persons interested in the only heir of the said A the sale of the estate of persons un- R G in ease of the death der disability. Code (W, Va.) Ch. of the latter, is adapted to the Stat- 83, see. 2. 1472 EQUITY PEOCEDUEE. required to answer this bill upon oath, and that the said luna- tic may likewise be required to answer by her guardian ad litem, each of said answers to be duly verified; that said property may be sold to the parties above named upon the terms men- tioned herein; and grant unto your orator such other, further and general relief as to equity may seem meet, and the nature of the ease may require. W- H- — , Committee of K G— -, By Counsel.' c- E- Solicitor. No. 433. §1253. Decree in divorce suit restoring plaintiff to maiden name. (After the style of the suit, and then as in No. 389 to the f, paragraph and proceed as follows:) And it appearing to the court that the maiden name of the said A- B was A L , and the said A B — ■ — desiring it, upon her motion it is adjudged, ordered and decreed that she, the said A B , be, and she is, hereby ' It will be observed that the above form sets out certain specific bids made by particular persons for specific parcels of the property of the lunatic. In the case of Palmer vs. Garland, supra, the court re- ferred the cause to a commissioner to ascertain and report whether it would be to the interest of the lu- natic to confirm the offers of pur- chase set forth in the bill, at the prices therein named, and the terms set forth therein. The commissioner took the account in the usual way, after notice and a hearing of the parties, and reported that it would be to the interest of the lunatic to make and confirm the proposed sales to the persons, at the prices, and upon the terms alleged in the bill, and that the rights of no per- son or persons would be violated thereby. The court entered a proper decree in the case, confirming the report, and directing the sales trans- ferring the title to the property, and making all other necessary pro- visions for the investment of the proceeds of sale. Tlie decree of the court was confirmed on appeal by the Supreme Court of Appeals of the State. MISCELLANEOUS FORMS. 14:73 restored to her maiden name of A L , by which she shall he hereafter called and known. (Conclude by giving a judgment for costs in favor of the plaintiff.) No. 434. §1254. Decree against personal representative of the estate of a decedent. (After the style of the cause and the proper recitals, proceed as follows:) Upon consideration of all which the court is of opinion that the plaintiff is entitled to the relief prayed for in his bill against E F , the administrator of C D , deceased. It is therefore adjudged, ordered and decreed that the said A B , do recover of and from the said E — — E , administrator of C D , deceased, to be paid out of the personal estate of said decedent, which shall or has come to the hands of the said E F , administrator of C — — D , deceased, the sum of dollars, with legal interest thereon from this day until paid, and the costs of this suit. (Here add any other or further provisions to the decree that the nature of the case may warrant or the pleadings and papers in the cause may require.)^ No. 435. §1255. Decree directing issue to determine question of fraud and mental incapacity. (After the style of the suit and the proper recital proceed as follows:) Upon consideration whereof it is adjudged, ordered and de- 8 This form is based upon the pro- ginia, Code Ch. 131, sec. 20, and of visions of the Statute of West Vir- Virginia Code, 1887, sec. 2677. 1474 EQUITY PEOCEDUBE. creed that the following issues be and they are hereby directed to be tried by a jury at the bar of this court, namely : (1) Whether the deed bearing date on the day of signed and delivered by A B to C D was obtained by the defendants (name them), the grantees by fraud or undue induence. (2) Whether or not, at the time said deed was executed, the grantor was incapable, by reason of disease, old age, or other cause, of clearly understanding its purport and object. And it is further adjudged, ordered and decreed that upon the trial of said issue, the said plaintiffs in this suit shall be the plaintiffs therein with the right to open and conclude the trial thereof; and that the defendants in this suit shall be the defendants upon the trial of said issues.'' 'No. 436. §1256. Order dismissing bill for plaintiff's failure to give secur- ity for costs. (After the style of the suit.) This cause came on this day to be heard upon the suggestion on the record of this court, at a former term hereof, by the defendants, of the non-residence of the plaintiffs, and upon the proof filed on behalf of the plaintiff, Adda Cannon, as to her residence in the State as well as the affidavits filed as proof by the defendants, as to her non-residence. Upon considera- tion whereof the court is of opinion that the preponderance of proof is that the said Adda Cannon is a non-resident of the State, and that she is not a resident of the said State. And it not being proved in any way that any of the plaintiffs in this cause are residents of the State of West Virginia, and the plaintiffs not having given security for costs, as reqtiired by law, either before this court or the Clerk thereof, within sixty days » The foregoing form is taken from the ease of Fishburn vs. Iferguson, 84 Va., 87, 4 S. E. Rep. 575. MISCELXANEOUS FOEMS. 1475 from the time of the said suggestion upon the records of this court, nor upon any day of this term, and the last day of this term of this court having arrived, it is adjudged, ordered and decreed that this suit he and the same is hereby dismissed, but without prejudice to the rights of the plaintiffs to institute another suit for the same cause of action. It is further ad- judged, ordered and decreed that the defendants recover of the plaintiffs their costs about their suit in this behalf expended.^" No. 437. §1257. Order for leave to file a bill of review. (After the style of the cause.) This cause came on this day to be heard upon the petition of C D , the defendant, praying for leave to. file a bill of review therein, and counsel for the respective parties having been heard, and the court being fully advised in the premises, doth hereby adjudge, order and decree that the said C D — ■ — be at liberty to file a bill of review, touching the sev- eral matters in said petition mentioned and for relief in the premises as he may be advised.^^ No. 438. §1258. Caption for decree or order, with title of cause. At a term of the Circuit Court" held in and for the County of , in the State of , at the court house thereof, on the day of • , 19 — . 10 The foregoing form is taken n See Puterbaugh, Ch. PI. and Pr. from the one used in Dean vs. Can- (3rd~ed.) 317. non, 37 W. Va. 123, 16 S. E. Rep. 444. 14Y6 EQUITY PEOCEDUEE. Present : The Honorable J- L K , Judge of the said court.* A B vs. !■ In Chancery. - D . This cause came on this day, etc^ No. 439. §1259. General form of an order. (After the style of the cause.) This cause came on this day to be heard upon the motion of the plaintiff, (or defendant) for, etc., (here insert the na- ture of the cause, and let the recital agree with the facts), the bill of complaint therein ; the answer of the defendant therein ; the replication of the complainant to said answer ; the deposi- tions taken and filed in the cause ; and upon the argument of counsel for the respective parties therein. Upon consideration whereof, it is adjudged, ordered and decreed (here insert the order. )^^ ISTo. 440. §1260. General form of a decree. (After the style of the cause.) This cause came on this day to be heard upon the bill of com- plaint filed therein ; the answer of the defendant thereto ; the replication of the plaintiff to said answer ; upon the deposi- 12 The above form is the one gen- After the first day the words " oon- erally used in the entry of all de- tinUed and " immediately after the crees in chancery. The heading ° are often inserted, down to the * is made each day i3 The foregoing form is sub- and the various orders are inserted stantially taken from Puterbaugh, thereafter until all the decrees tliat Gh., PI. and Pr. (3rd ed.) 256. are rend^ed have been entered. MISCETXANEOUS FORMS. 14T7 tiona taken and filed therein ; and was argued by counsel. Upon consideration of all -whicli it is hereby adjudged, ordered and decreed, that (here insert the decree.)^* 1^0. 441. §1261. The recitals of a decree. This cause came on this day to be heard upon the bill of com- plaint and its exhibits; the answer thereto, and the general replication to said answer; the depositions taken and filed in the cause on behalf of both plaintiff and defendant ; and upon argument of counsel for the respective parties. Upon consid- eration whereof, etc^^ ISTo. 442. §1262. Order for revival of suit. (After the style of the cause.) This cause came on this day to be heard, and it appearing to the court that on the day of , 19 , the complain- ant exhibited his bill in this court, against C D and E D , his wife, to be relieved touching the several mat- ters therein contained ; that the said C D and E 33 appeared and put in their answer to said bill, to which the complainant filed a replication; and that afterwards, on the day of , 19 , the said cause came on to be heard in this court, when it was adjudged, ordered and decreed that, etc., (here set out the decree) that before any further pro- ceedings were had in said cause, the said C — ■ — - D departed 14 Puterbaugh, Ch. PL and Pr. Ch. PI. and Pr. (3rd ed.) 253, and (3rd ed. ) 256. is the usual form found in works 15 The above form is constructed on chancery practice, in which forms from one appearing in Puterbaugh's of this character appear. 1478 EQUITY PKOCEDUKE. this life, having first duly made his will, therein appointing the said E D , his wife, and the said E F , exec- utrix and executor, who duly proved the same; and that the said E D has since also departed this life, leaving the defendant, E F , her surviving, as the sole per- sonal representative of the said C D , deceased; and that the said suit and proceedings abated by the death of the said C D , that the complainant has exhibited his bill of revival in this court against the defendant, E F — ■ — ; and that defendant having been duly served with the process of summons of this court, more than thirty days prior to the present .term, and he having failed to appear and put in his answer, it is ordered that the said suit and proceedings do stand revived against the said E F , and be in the same plight and condition they were in at the time of the death of the said C D . ISTo. 443. §1263. Final decree for dissolution of partnership, and confirm- ing report made in the canse, (After the style of the cause.) This cause having come on to be heard upon the bill of com- plaint herein, the answer of the defendant thereto, the replica- tion of the complainant to such answer, and the report of the master in chancery of this court, to whom this cause was here- tofore referred to take the proofs of the matters in issue in said cause, and to state an account of the partnership dealings be- tween said parties, which said report is hereby approved and confirmed, and having been argued by counsel for the respective parties ; and the court being fully advised in the premises, and on consideration thereof, doth find : that the allegations of said bill are substantially true as therein stated ; and that the equity of this cause is with the complainant; and that, etc. (Here insert any other matter found hy the court) ; and that upon the MISCELLANEOUS FOEMS. 1479 statement of the account between the said parties, in respect to their partnership dealings, that there is now due from the de- fendant to the complainant the sum of dollars. It is therefore adjudged, ordered and decreed by the court, that the copartnership heretofore existing between the said par- ties be, and the same is hereby, dissolved ; that the defendant pay to the complainant within days from this date, the said sum of dollars, with lawful interest thereon from this date until paid, and also the costs of this suit to be taxed by the Clerk of this court ; and in default of such payment, that execution issue therefor.^® ISTo. 444. §1264. Order making petitioner party to the suit. (After the style of the cause.) This day came E IT and presented his petition to the court, duly verified, praying to be made a party to this cause. And the court having examined and considered the said petition, and it appearing to the court that the said E F niay properly be made a party thereto, it is therefore hereby adjudged, ordered and decreed that the said petition be filed in the papers of this cause, and that the said E F be made a party thereto, with full liberty to take such steps in the cause as he may be advised that his interests require. And it is further adjudged, ordered and decreed that the plaintiff's bill be so amended as to show that the said E • E has been made a party to this cause, and properly brought into the suit for all purposes of the regular procedure herein, so far as the same may affect the said E E ." le The above form is taken from Toulmin vs. Reid, 14 Beav.' 505 ; Puterbaugh's Ch. PI. and Pr. (3rd Stowell vs. Cole, 2 Vern. 296; llor- «d. ) 414 415. wood vs, Schmedes, 12 Ves. Jr. 316; After a decree for an accounting Stainton vs. Carron Co., 24 Beav. the plaintiff may always be ordered 346. to pay the sum found due from him " " The mere filing of a petition where the liability to pay is mutual, does not operate propria vigore to Clarke vs. Tipping, 4 Beav. 588; inake the petitioner a party. To 1480 EQUITY PEOCEDUEE. No. 445. §1265. Decree for partition and dower, and appointing commis- sioners to assign dower and make partition in same case. (After the style of the suit and the proper recitals.) Upon consideration of all which the court doth adjudge, order and decree that the said complainant, A — — B , widow of the said E B , deceased, be endowed with one full, equal third part of the lands and premises in the bill and pro- ceedings mentioned and described; that the said complainants, B B , C B , F B , G B and H ■ B , are each entitled to one-fifth part of said premises in fee simple, subject to said dower ; and the court doth further adjudge, order and decree that the said A B — ■ — do recover her dower in the said premises, and that division and partition be made of the remainder thereof, after the assignment of said dower, between the said B B , C B , F B , a B and H B , in accordance with their respective interests therein ; that B A , D C— and F E , disinterested parties, be, and they are hereby, appointed commissioners to assign said dower and make partition of said premises, being first duly sworn for that purpose ; and that they do go upon said premises and first set off, allot, and assign to said A B her dower in said premises by metes and bounds, or other proper description, according to quality and quantity of said premises, giving her the homestead or dwelling house on the homestead, if she shall so desire it, and may assign the whole of said dower in a body or out of two or more of the tracts in the bill and proceedings mentioned and described, in such manner as they may deem best for all persons interested ; and, secondly, after assigning the widow's dower as aforesaid, said commissioners are hereby directed and ordered to make partition and division of the remainder of said premises be- effeet this an order of the court is ington Life Ins. Co. vs. Maury, 75 necessary." The Piedmont and Arl- Va. 508. MISCELLANEOUS FORMS. 1481 tween the said B B , C B , F B , G B and H B respectively, assigning to each one-fifth part thereof, by metes and bounds or other proper description, quality and quantity being considered, and if nec- essary, that they employ a surveyor witb necessary assistance to aid them; and if said commissioners shall find that said premises are so circumstanced that dower cannot be assigned, and a division and partition made thereof without manifest pre- judice to the parties in interest, they will report such fact to the court, together with their reasons for so determining; and what the said commissioners shall do under this decree they shall report to the next term of this court. All of which is ad- judged, ordered and decreed accordingly.^* No. 446. §1266. Of exceptions to a deposition as an entirety. -B- vs. - D- In Chancery. Pending in the Circuit Court of the County of and State of .* Exceptions of the plaintiff, A B , to the deposition of R Q , taken and filed on behalf of the defendant in the above named cause. The plaintiff excepts to the deposition of E Q taken and filed by the defendant in the above entitled cause on the day of , 19 , and, as appears from the endorse- ment thereon made, filed with the Clerk of the said court on the day of , 19 , upon the following grounds: First. Because the notice under which said deposition pur- ports to have been taken, does not specify the month, or day 18 The above form is adapted from one appearing in Puterbaugh's Ch. PI. and Pr. (3rd ed.) 532, 533. 1482 EQUITY PEOCEDUEE. of the month upon which said deposition was to be taken. (Or whatever the grounds may be.) Second. Because (if there be further grounds of objection to said deposition, here state it and continue to specify all other objections, properly numbering them, which the plaintiff de- sires to urge against the said deposition.) The plaintiff therefore excepts to the foregoing deposition of E Q and prays that the same may not be read and considered upon the hearing of said cause. A B ; By Counsel. S E H- Solicitor. No. 447. §1267. Of exceptions to certain parts of a deposition. (As in No. Jf-Jf-d to the *) then proceed as follows : Exceptions of A B , the- above named plaintiff, to certain parts of the deposition of E — — Q taken and filed in the above named cause by the defendant. The plaintiff excepts to the following portions or parts of the deposition of E Q taken by the defendant in said cause on the day of , 19 , and filed in the Clerk's office in said court, as appears from the endorsement made on said deposition, on the day of , 19 : First. To question JSTo. 1 and the answer thereto given be- cause the question calls for hearsay evidence and the answer contains the mere declaration of the defendant made in the ab- sence of the plaintiff. (Or whatever the ground of objection may be, set it out specifically.) Second. To question 'So. 5 and the answer thereto because (here specify the grounds of objections.) Third. To so much of the answer to question ISTo. 15 as fhere set out sveciUcallv the obiectionable vart of the answer: MISCELLANEOUS FOEMS. 1483 and proceed in this manner until all the objectionable parts of the deposition are pointed out.) The plaintiff therefore excepts to so much and such parts of said deposition as are herein above specified, and prays that his exceptions may be sustained ; and that those parts of said depo- sition so excepted to, may not be read and considered by the court upon the hearing of the above named cause. A B , By Counsel. C. E. H., Solicitor. No. 448. §1268. Of injunction bond. Know all men by these Presents: That we, A B and E E , are held and firmly bound unto the State of West Virginia, in the just and full sum of — — dollars; the payment whereof well and truly to make, we bind ourselves jointly and severally, firmly by these Presents. Witness our hands and seals this the day of , 19 . The condition of the above obligation is such, that whereas, the above bound A B — • — - hath obtained an injunction against C D in a suit in equity, now pending in the Circuit Court of the County of and State aforesaid, in- hibiting* and restraining him, the said C D (hei-e set forth in a general way, the acts enjoined.) ISTow therefore if the said A B shall well and truly pay all such costs as shall be awarded against him and also such damages as shall be incurred or sustained by the said C D by reason of the suing out of the said injunction, in case the same shall be hereafter dissolved, then the above obligation to be void, else to remain in full force and effect, f . [seal.] . [seal.] 1484 EQUITY PKOCEDUEE. No. 449. §1269. Of bond of injunction to judgment at law. (As in No. 448 to the * then as follows:) restraining C D — - — from further proceeding, or at- tempting to proceed further to enforce, the payment or coUec^ tion of a certain judgment in favor of the said C D rendered by the Circuit Court of the County of , and State aforesaid on the — ■ — day of , 19 , against the said A B — — , until the further order of the court ; now therefore, if the above bound A B shall pay the above named judgment and all such costs as may be awarded against the said A B , and also such damages as shall be incurred or sustained by the said C D , by reason of the suing out of the said injunction, in case the same shall be hereafter dissolved, then this obligation to be void, else to remain in full force and effect. (Conclude from the f as in No. U8.) No. 450. §1270. Of order removing cause to other county because improp- er for Judge to preside at the trial. (After the style of the cause.) This being a cause, in the judgment of the court, in which the Judge of this court is so situated as to render it improper for him to decide the same or preside at the trial thereof, it is therefore adjudged, ordered and decreed that this cause be re- moved to the County of to be heard there and finally de- termined ; and the Clerk of this court is hereby directed as soon after the adjournment of this court as he may conveniently do so, to transmit the original papers thereof, with copies of all rules and orders therein made and entered, and a statement of the costs incurred by each of the parties thereto, to the Clerk of the Circuit Court of the said County of .^° 10 The foregoinjr form is adapted to the Statute of W. Va. Code, Ch. 128, sees. 1, 2. MISCELLANEOUS FORMS. 1485 No. 451. §1271. Order awarding injunction restraining and inhibiting laborers and members of labor organizations from mo- lesting the plaintiff in the conduct of his business. (After the style of the cause.) This day the M C Company, a corporation, by its counsel, presented to the undersigned Judge of the Circuit Court of County, in the vacation of the court, its bill for an injunction, duly verified, alleging, among other things, that the defendants named in its bill are about to prevent the em- ployes of the plaintiff from mining and producing coal in and from its mines, and performing other labor in and about its mines, and that unless the undersigned Judge shall grant an immediate restraining order preventing them from interfering with the employes of the plaintiff and the conduct of the plain- tiff's business, there is great danger of irreparable injury and damage to the plaintiff, inasmuch as the defendants are insol- vent, and wholly irresponsible to respond in damages obtainable in an action at law. Upon consideration whereof an injunction is hereby award- ed, restraining and inhibiting the defendants, to-wit : (naming them), their confederates, and all others associated with them, from unlawfully interfering with the plaintiff's employes now in its employment, at or upon the plaintiff's premises, or from unlawfully interfering with any person in or upon its prem- ises, who may desire to enter its employment hereafter, by the use of threats of personal violence, or intimidation, or coercion, or by any other means whatsoever, calculated to intimidate, ter- rorize or alarm or place in fear, any of the employes of the plaintiff in any manner whatsoever, at or upon its premises. And the said defendants and all other persons associated with them are hereby enjoined from undertaking by any of the means or agencies mentioned in the plaintiff's bill, to go upon the plaintiff's land or premises to induce or cause any of the employes of the plaintiff, by means of threats or intimidation of any sort, to quit or abandon the work in the mines of the 1486 EQUITY PltOCEDL'BE. plaintiff or its premises set forth and described in its bill; and said defendants and their associates are hereby enjoined from congregating in, on or about the premises of the plaintiff for the purpose of inducing the employes of the plaintiff, by un- lawful means or methods, now working in said mines, to quit and abandon their work. And the said defendants, their confederates and associates, are further restrained from conducting or leading any body or bodies of men up to or upon the premises of the plaintiff in the manner set forth in the plaintiff's bill, for the purpose of inducing and causing the plaintiff's employes to quit and aban- don their work for the plaintiff, and from in any manner in- terfering with, directing or controlling plaintiff's employes, or from interfering in the business of the plaintiff upon its land or premises, as in said plaintiff's bill is set forth and alleged. And the said defendants, their confederates and associates, are hereby enjoined from going upon any part of the plaintiff's land or premises, for the purpose of intimidating, coercing or endeavoring, by any unlawful means, to procure and induce the plaintiff's employes to cease their work in its mines and upon its premises. The foregoing injunction shall not take effect until the plain- tiff, or some one for it and on its behalf, shall enter into bond with approved security before the Clerk of said Cireidt Court, in the penalty of dollars, conditioned to pay all costs and damages which may be incurred or sustained by the said de- fendants or any of them by reason of the issuance of thi? in- junction, should the same be hereafter dissolved. Judge of the Circuit Court of County, and State of . The Clerk of the Circuit Court of the County of , and State of , will enter the foregoing as a vacation order, as of the day of , 19 . , Judge.=» 20 The above form is based upon announced appearing in the note to the decisions and principles therein form No. 138, see, 958. MISCELLANEOUS FORMS. 1487 No. 452. §1272. Eorm of petition for an attachment for disobeying an injunction. (As in No. 1S5 mutatis mutandis to the *.) A. B. complains .against C. B. and says that she is the wife of said C. B. and on the day of , 19 , she caused to be filed, in the office of the Clerli of said court for said county, her bill praying for a divorce from said C. B. and for other relief for the causes therein set forth; and upon her motion a writ of injunction was duly issued by said court on the — ■ — day of , 19 — , enjoining and prohibiting said C. B. from imposing any restraint upon her personal liberty during the pendency of said bill, and was duly served upon said C. B. on the day of , 19 — . Yet the said C B. well knowing the premises, but wholly re- gardless of the said injunction, on, etc., at etc., with force and arms, made an assault upon said A. B. and beat and bruised her, and imprisoned and deprived her of her personal liberty for the space of days, from said, etc., to etc., in contempt of said injunction, and against the peace and dignity of the State. Wherefore she prays that said C. B. may be held to answer for said contempt and that justice may be done in the premises. (Verify the above hy affidavit.) A. B.' 21 21 The above form is taken from suit in which the order was ob- Fletoher's Eq. PI. and Pr., 555, tained, or for some reason stands in which is the form prescribed by the privity with one who was a party rules of the Supreme Court of New to the litigation. In cases where Hampshire, as stated by the author an injunction has been granted to citing 56 N. H. 620. enforce or maintain a merely pri- " When an injunction has been vate right, a proceeding instituted granted, in a suit between individ- to punish a party for violating the uals to protect one of the parties in order is very generally regarded as the enjoyment of some private right, a proceeding to redress a private in- immunity, or franchise, it seems to jury in which the public have no be the rule that no one can complain concern, and for that reason the of a violation of the same, unless it prosecutor or person filing the in- be some one who has a present in- formation must have an interest in terest in maintaining the injunc- the proceedings differing from that tion. or unless he was a party to the of the general public; otherwise the 1488 EQUITY PEOCEDUEE. ¥o. 453. §1273. Form of order to show why an attachment should not issue for disobeying an injunction order. B- vs. D- Plaintiff, Defendant. In Chancerj. And now, this day, the petition, duly verified, of said A. B. having been filed in this court, in the above entitled cause, and it appearing to the court by the said petition and affidavit thereto attached, that the said C. D. has disobeyed the injunc- tion order duly served upon him, inhibiting and restraining courts will not entertain the infor- mation. Hawley vs. Bennett, 4 Paige 163; Rap. Contempt § 127; 2 High Inj. (2 ed.) § 1449. The cases show that a party in whose favor an injunction has been awarded may by express agreement, or by his conduct, release the in- junction, or at least waive his right to have the particular acts done in violation of the restraining order adjudged to be a contempt. Mills vs. Cobby, 1 Mer. 3; Barfield vs. Nicholson, 2 Law. J. Ch. 90; Hull Ts. Harris, 45 Conn. 544, 2 High, Inj. (2 ed.) § 1450. It would seem to follow that an injunction ob- tained to protect a merely private right, is so far within the control of the party obtaining it, and is so far a matter of individual concern, that only those persons who have a. present interest in the right to be protected can be heard to complain of its violation. If a person in whose favor an injunction has been granted complains of its violation, a presumption should no doubt be indulged that he still has an inter- est in' the subject matter to which the injunction relates, without any averment to that effect; and if such interest is called in question by the respondent, the court ought not to inquire very particularly as to the extent of the prosecutor's interest, further than to assure itself that the prosecutor is not a mere inter- meddler. . . . Nevertheless it is essential that the person who sets on foot a prosecution for contempt should have some present interest in enforcing obedience to the order which has been violated." Secor vs. Singleton, 35 Fed. Rep. 376, 377, 378. To the same effect and hold- ing to the same doctrine are the fol- lowing eases: Hunter vs. Phillips, 56 Ga. 634; Hackett vs. Green, 32 Ga. 512; People vs. Diedrich, 141 111. 655 ; Lattimer vs. Barmore, 81 Mich. 502; Moore vs. Mercer Wire Co., (N. J. Ch.) 15 Atl. Rep. 305. In Diedrich vs. People, supra, the court decides : " An injunction ob- tained to protect a merely private right is so far within the control of the party obtaining it, and a matter of individual concern, that only those persona who have a pres- ent interest in the right to be pro- tected, can institute contempt pro- ceedings to punish its violation." MISCELLANEOUS FOEMS. 1489 him (Here set forth the matters injoined, and also state wherein the defendant has not obeyed the injunction order:) it is there- fore ordered that the said C. D be required to be and appear before this court on the day of , and then and there to show cause why he should not be adjudged to answer for contempt to the court in disobeying the lawful process of this court as above mentioned duly served upon him. It is further ordered that a duly attested copy of this order be forthwith served upon the said C. D."^ No. 454. §1274. Form of an answer to a rule to show cause why a party should not be attached for contempt. A B vs. -In Chancery C D , E F , and G H . Pending in the Circuit Court of the County of , in State of . And now comes C. D., one of the above named respondents, in obedience to the rule heretofore, to-wit, on the day of , A. D. 19 , entered in said court, reqiiiring this re- spondent and E. F. to show cause why an attachment should not issue against them for a contempt of said court, on account of the mattters and things in a certain information filed in said court, in said rule mentioned ; and in answer to the said rule this respondent says that he is the sole proprietor of the said news- paper mentioned in the said information, called the , and that the article set forth in said information was published therein on the day of — ■ — -, 19 , but this respondent says that neither before nor at the time of the publication had he any knowledge or information relative to the same. This re- 22 This form is based upon a simi- tially from State vs. Bourne, 21 lar one appearing in Fletcher's Eq. Or. 225, 27 Pac. Rep. 1048. PI. and Pr. and is taken substan- 1490 EQUITY PBOCEDUBE. spondent did not know before said paper in which the article appeared was published, that said article, or any article upon the subject, was written or to be written, or that any article upon the subject was to be published and that he neither ad- vised or counseled, now was he advised or counseled with by, any person whatever, relative to the publication of said arti- cle, or any article upon the subject. This respondent further says that the first knowledge or information he had relative to said article or its publication was when he read the said article in said paper after its pub- lication and distribution. This respondent further says that he is informed and be- lieves that no disrespect was intended by said article to said court, or to any judge thereof, and that a fair construction thereof will not warrant an inference to that effect. This respondent is advised and believes that the publication of said article was not designed and had no tendency to im- pede, embarrass or obstruct the administration of justice in said court. And this respondent does and will insist that he had and still has the right, through his said paper, by himself or his agents, to examine the proceedings of any and every department of the government of this State, and that he is not responsible for the truth of such publications, nor for the motives with which they were or are made, by the summary process of an at- tachment for contempt, save when such publications impede, embarrass, or obstruct the administration of justice. This respondent further says that such has been the estab- lished law of this State for over thirty years last past, and that said court has no judicial power to change the same. This respondent takes this occasion to renew his repeated ex- pressions of confidence in the ability and integrity of said court, and of the individual members of the same, and as evidence of the same gives the following article, which was published in said paper, issued on the day of , 19 ; that is to say: (Here insert the article.) This respondent further says that, at the time of the publica- tion of said article first mentioned, there was an intense excite- MISCET.LANEOUS FOEMS. 1491 ment in tlie community, and particularly in the city of on account of the frequent murders, and the escape of the per- petrators thereof; and this respondent is informed and believes that the design of said article was to impress upon the com- munity the importance of electing members of the next general assembly of this State who would remedy the defects in the criminal law of the State, by which criminals are able to es- cape punishment, and not to reflect upon the ability or integ- rity of said court, or any member thereof, nor to impede, em- barrass, or obstruct the administration of justice. Wherefore, this respondent prays that the said rule, as against him, may be discharged. A B . (Append the affidavit for the verification of a pleading. )^^ No. 455. §1275. Form of order dismissing suit agreed. B- vs. C D- In Chancery. This day came the parties to this cause by their attorneys, and thereupon the same is hereby dismissed " agreed." " No. 456. §1276. Form of an order requiring plaintiff to elect whether he will proceed at law or in equity. (After the style of the cause.) It appearing that the complainant prosecutes the defendant . both at law and in this court for one and the same matter, 23 The above form will be found W. Va. 520, 39 S. E. Eep. 199, it is in the case of The People vs. Wil- decided that an order dismissing a eon, 64 111. 195, 16 Am. Eep. 528. ease agreed is a bar to another suit 24 In Pethel vs. McCullough, 49 for the same cause of action. 1492 EQUITY PEOCEDUEE. whereby he is doubly vexed, thereupon, on motion of O. R., solicitor, for the defendant, it is ordered that the complainant, within days after the notice of this order, elect whether he will proceed at law in the suit brought by him against the de- fendant, or in this court, upon his bill, and if he elects to proceed at law, or, if he neglects to file siich election within the said ' days, the bill in this cause shall thereupon stand dismissed, with costs, and, if he elects to proceed here, it is then ordered that he proceed no further in the suit at law without leave of this court.^° No. 457. §1277. Form of instrument making election to proceed in equity when action at law and suit in equity pending for same cause. A B- vs. C D- In Chancery. Pending in the Circuit Court of ■ County and State of In pursuance of an order of this court, made in this cause, and dated the day of — — , 19 — , the complainant doth hereby make his election to proceed in this court. C. R, Dated, Solicitor for Complainant.' 26 ISTo. 458. §1278. Short form of decree on an issue out of chancery entered upon the verdict of the jury. (After the title of the cause.) This cause came on this day to be further heard upon the bill< =r' See 1 Hofraan, Ch. Pr. Ixxxvii, 26 The above form is taken from cited in Fletcher Eq. PI. & Pr. 392 . Fletcher's Eq. PI. and Pr. 292. See also ante § 1249 ; Williamson vs. Paxton, 18 Gratt. 475. MISCELLANEOUS FORMS. 1493 and answer, and replication thereto, the depositions of witnesses, and the verdict of the jury upon the issue out of chancery in this cause, and was argued by counsel. On consideration whereof, the said verdict is approved and confirmed. The court doth adjudge, order and decree, etc.^' No. 459. §1279. Caption of depositions, examination of witnesses, ad- journment and attestation. The depositions of A. B. and others, taken before me, W. B. M., a notary public (or justice of the peace), for the County of and State of , pursuant to notice hereto annexed, at the office of J. H., in the city (or town) of , in the County of , State of , on the day of , 19 — , between the hours of 9 A. M. and 4 P. M., to be read as evidence on behalf of J. M. M., in a certain suit in equity, depending in the Circuit Court for the County of — — ^, State of , wherein P. S. is plaintiff, and the said J. M. M. is defendant. Present: C. D., counsel for plaintiff. E. P., counsel for defendant. A. B. being first duly sworn, deposeth and saith as follows: Ques. 1. State your age, residence and occupation. Ans. Ques. 2. Are you acquainted with the parties to this suit? Ans. (Proceed, with the deposition as indicated ahove, numbering the questions in consecutive order, until the examination in chief is concluded. ) CROSS-EXAMINATION. Ques. 1. (Continue as in the examination until the cross- examination is finished.) 27 See Ogle vs. Adams, 12 W. Va. 224, from which this form is taken. 1494 EQUITY PEOCEDUEE. EE-EXAMINATION. Ques. 1. (Proceed as in the examination in chief until the re-examination is finished.) And further this deponent saith not. (Signed) A. B. No other witness appearing, the further taking of these dep- ositions is continued until tomorrow, at the same place and be- tween the same hours. J. W. C, IvTotary Public. Office of J. H., in the city (or town) of , day of , 19 . Present: — C. D., counsel for plaintiff. E. P., counsel for defendant. O. P. being first duly sworn, deposeth and saith as follows: Ques. 1. (Proceed as in the taking of the deposition of A. B.) And further this deponent saith not. O. P. State of , County of I, J. W. C, a notary public within and for the County and State aforesaid, do hereby certify that the foregoing deposi- tions of A. B. and 0. P. were duly taken, sworn to and sub- scribed before me, at the times and place and for the pur- pose specified in the caption hereto. Given imder my hand this • day of , 19 . J. W. C, Notary Public.'" :N"o. 460. §1280. Form of affidavit authorizing an order of publication against a corporation which has failed to comply with sec. 24, chapter 54, of the Code of West Virginia. State of West Virginia, SS. ']■ County of . Before the undersigned authority, this day personally ap- se See Matthews' Forms, 301, 302. MISCELLANEOUS FOEMS. 1495 peared C E H , who, after being duly sworn, says that 'he is the attorney for the plaintiff in the case of D S B , plaintiff, against the E R Company, a corporation, and the B & O — ■ — R — — Company, a corporation, defendants, pending in the Circuit Court of the County and State aforesaid. Affiant further says that there is no person that can be found in the County of upon whom to serve process as to the said E R Company, a corporation. This af- fiant further says that there is no person now residing in the State of West Virginia who has been appointed under the provisions of the statute of West Virginia, sec. 24 of ch. 54 of the Code to accept service of process or notice on behalf of said R R Company, a corporation, and upon whom service of any process or notice may be had or made as to the said O — ■ — R R Company, a corporation, and this affiant says that the said 0- R — — R Company under and by virtue of the statute of West Virginia, sea 24, ch. 54 of the Code, with which the said O R R Com- pany has failed to comply, as hereinbefore stated, and by rea- son of such non-compliance therewith, affiant is advised and so states, may be proceeded against as a non-resident of the State of West Virginia. Taken, sworn to and subscribed before me, this, the day of , 19 . ISTo. 461. §1281. Form of order of publication where corporation has failed to comply with section 24 of chapter 54, Code of West Virginia. State of West Virginia. At rules held in the Clerk's office of the Circuit Court of the County of , beginning on Monday, the day of , 19 , the following order was entered: 1496 EQUITY PROCEDTJEE. D S B vs. O E R Company, a corporation, I In Chancery. and the B & O Company, a cor- poration. The object of the above entitled cause is (Here state the ob- ject of the suit.) It appearing by affidavit filed in the above entitled cause that the O R R Company is a corporation, and that there can be no person found in the County of — '■ — upon whom to serve process relating to the said O R R Company ; and it further appearing from affidavit filed therein that there is no person now residing in the State of West Vir- ginia, who has been appointed ilnder the provisions of the Statute of West Virginia, sec. 24, eh. 54 of the Code to accept service on behalf of said O — ■ — R R ■ Company, a corporation, and upon whom service of any process or notice may be had or made as to the said O R R Com- pany, a corporation ; and it further appearing from affidavit filed in the above entitled cause that the said B & O R Company is a non-resident of the State of West Vir- ginia, it is ordered that the said O R R Com- pany and the said B & O R Company do appear here "within one month from the date of the first publication hereof and do what is necessary to protect their interests. A copy. Teste: E E ]\I , Clerk. No. 462. §1282. Form of order made in vacation directing the payment of alimony, pendente lite, and awarding an injunction re- straining the husband from inenmherins- or disnosins' MISCELLANEOUS FORMS. 1497 County, W V in vacation, on Monday, the day of , 19 . C B C ^ vs. ■ In Chancery. E C^— . Pending in the Circuit Court of M County, W — — V . This day C B C , by her solicitor, presented her bill in this cause, duly verified by her ovsm affidavit and moved the undersigned. Judge of the Circuit Court of said County and State, in the vacation of the said court, to require the defendant in the above entitled cause to pay to the said C B C , a reasonable sum of money for her sup- port and maintenance, during the pendency of said suit, and to enable her to carry on and prosecute the same. And the said Judge, having read and considered said bill, it is therefore ad- judged, ordered and decreed that the said E C , do pay unto the said C — ■ — B — — - C , within ten days from the time a copy of this order shall be served upon him, the sum of dollars, for the purpose of her maintenance and support during the pendency of this suit, and to enable her to properly carry on the same. And on the further motion of the said C — — B — ■ — C , an injunction is hereby awarded inhibiting and restraining the said E C from disposing of or incumbering his real estate in the said bill and proceedings mentioned and de- scribed, consisting of a house and lot in L , M Coun- ty, W V , the house containing five rooms, and now occupied by the said E C , and also from disposing of or incumbering the ■ — — acres of land situated about miles' back of L — — , in the County of M and State of West Virginia, except that he is hereby permitted, if neces- sary, to incumber the said property to the extent of enabling him to raise the said sum of ■ dollars ; all of which is ad- judged, ordered and decreed accordingly. And it appearing to the court that the above named C B C is the wife of the defendant, and is with- 1498 EQUITY PEOCEDUEB. out any means whatever, and it further appearing to the satisfaction of the court that this is a case in which bond shou Id not be required, the foregoing injunction is awarded to take effect without bond. And in lieu of formal notice the Clerk of the said court is hereby directed to make two copies of this order, one to be served forthwith upon the said E C and the other to be returned by the Sheriff of said county to said Clerk's office, containing an endorsement of the time and manner of the service thereof. F A— G , Judge of the Circuit Court of M County, W V . The Clerk will enter the foregoing in the chancery record as a vacation order, as of the day of — • — , 19 . F A G -. A— — B . vs. 0— — D ISTo. 463. §1283. Decree for specific performance, strikiiig out one plea in abatement, making up issue on another, and overrul- ing plea in abatement, upon a submission of the issue to the court. In Chancery. This cause came on this day to be heard upon the process duly executed upon the defendant; upon the plaintiff's bill with its exhibits, regularly filed at rules, and the proceedings regularly had thereon at rules ; upon the special pleas in writ- ing filed by the defendant at rules, marked respectively, Nos. 1 and 2 ; upon the motion of the plaintiff to strike out plea No. 1 from the record and files of this cause; upon the gen- eral replication of the plaintiff to said plea 'No. 2 ; upon the waiver in writing of a jury for the trial of the issue made upon the replication to said special plea Wo. 2, and the submission of the trial of said issue by like agreement to the court in lieu MISCELLANEOUS POEMS. 1-1:99 of a jury; upon the answer of the defendant to said bill and a general replication to said answer; upon the depositions taken and filed in the cause on behalf of the plaintiff and de- fendant; and upon the argument of counsel. Upon consider- ation of all which the court is of opinion to and doth hereby sustain plaintiff's said motion to strike said plea No. 1 from the record and files of this cause. It is, therefore, adjudged, ordered and decreed that said special plea No. 1 be and the same is hereby stricken from the record and files of this cause. And the court is further of the opinion and doth find for the plaintiff on the issue made by the plaintiff's general replica- tion to said plea No. 2, filed in this cause as aforesaid. The^ court is, therefore, of opinion, and doth so adjudge, order and decree, that the allegations in said plea No. 2 contained, are, in fact, not true; and this court is further of opinion, and doth so adjudge, order and decree, that said special plea No. 2, be and the same is hereby overruled, and that it is of opinion, and doth so adjudge, order and decree that this court hath jurisdiction to hear and determine this cause. And it appear- ing from the pleadings and proofs in this cause that the de- fendant, C D , by his agent duly authorized thereto, entered into a contract with the plaintiff, A B , where- by he did agree to purchase from the said A B the lands in the bill and proceedings mentioned and described, at the contract price of dollars ; and it appearing from said bill that said C D has declined and refused, and still declines and refuses, to perform his part of said agreement by taking the land and paying therefor the said sum of ' dollars, and it further appearing to the court that the said agreement ought to be specifically enforced, it is, therefore, adjudged, ordered and decreed that said agreement between said plaintiff and defendant whereby said plaintiff did agree to sell to the defendant the land in the bill and proceedings mentioned and described, containing acres, and which the said defendant agreed to purchase from the said plaintiff at the sum of dollars, be, and the same is hereby, en- forced. 1500 EQUITY PHOCEDUEE. It is, therefore, adjudged, ordered and decreed that the de- fendant do pay to the plaintiff the said sum of dollars, with legal interest thereon from this date until paid, and the costs of this suit. And it is further adjudged, ordered and decreed that upon the payment of the said sum of dol- lars, and interest thereon, and costs of this suit, that said A B do make, acknowledge and deliver to the said C D a deed with covenants of general warranty conveying to him, the said C D , the title in and to the said tract of land containing acres, and fully set out and described in the plaintiff's said bill ; and in default thereof then X G is hereby appointed and empowered and directed to make, acknowledge and deliver said deed for and on behalf of the said A — — B to the said C D , conveying to him, the said C — ■ — D , the said land, with covenants of general warranty, for which said N G shall be allowed the sum of — ■ — dollars, to be paid by the said A B , and to be taxed as costs against said A B ; and thereupon said A B asked leave to file such deed at this time in the papers of this cause, duly executed by said A B and wife, and bearing date on the day of , 19 -, to be delivered to the said C D by the Clerk of this court upon the payment by the said C D of the said sum of dollars, with the interest accrued thereon, and the coasts aforesaid ; which deed is hereby accord- ingly filed among the papers of this cause, to be delivered to the said C D by the Clerk of this court upon the payment to the said A B of the said money, interest and costs aforesaid, which payment shall be evidenced by the receipt of the said A B of the payment of the said money, or his release of this decree duly signed and acknowl- edged. All of which is adjudged, ordered and decreed accordingly. MISCELLAIN'EOTJS FORMS. 1501 No. 464. .§1284. Order of the Circuit Court appointing receiver after an an appeal to the Supreme Court of Appeals, and dur- ing the pendency of such case on appeal. (After the style of the cause.) On petition of C M E to have a receiver ap- pointed to take charge of the land in the bill and proceedings in this cause mentioned and described, and to rent the same out during the pendency of the appeal taken from the decree of this court rendered on the day of , 19 , the parties vi^ere fully heard, by counsel ; upon consideration where- of the court doth hereby appoint J- W O , Sheriff of this county, as such receiver, and doth adjudge, order and decree that said O do take charge of said land and rent the same for this year, and also from year to year, during the pendency of said appeal; that he take bond "with good se- curity for the rent of each year, payable on the day of , of each year, and, if not paid, that he take the necessary legal steps to collect the same ; and when collected he shall hold the same subject to the further order of this court. And what the said O shall do as such receiver under and by virtue of this order, he shall report to this court at a future term.^" 29 It will be observed that the re- The foregoing form is taken from eeiver appointed by the above order the one approved by the Court of is the Sheriff of the county, so that Appeals of Virginia in the case of bond is not required of him, his Adkins vs. Edwards, 83 Va. 316, 2 official bond covering a duty of this S. E. Rep. 439. sort. TABLE OF CASES. (References are to sections.) A. & D. R. Co. vs. Peake, 33 Abell vs. Ins. Co., 279 Abell vs. Penn. Mutual Insurance Co., 367 Abels vs. Mobile Real Estate Co., 205 Abels vs. Planters, etc., 205 Abernathy vs. Phillips, 41, 89, 299, 302, 906 Ableman vs. Berth, 11 Abney vs. Ohio Lumber & Mining Co., 11, 13 Achy vs. Holland, 2 Adair vs. Cummins, 961 Adams vs. Brenan, 78 Adams vs. Franklin, 133 Adams vs. Gill, 341, 349, 551 Adams vs. Graves, 490 Adams vs. Irwin, 602 Adams vs. Pater, 101 Adams vs. Phillips, 322 Adams vs. Schewalter, 129 Adams vs. Shelley, 513a Adams vs. White, 944 Addison vs. Sujette, 770 Adkins vs. Allen, 841 Adkins vs. Edwards, 199, 229, 425, 596, 713, 733, 853, 1284 Adkins vs. Withers, .545 Adney vs. Flood, 332 Aenaud vs. Grigg, 515 Ager vs. Fairfax, 74 Aholtz vs. Durfee, 218 Aiday vs. Harvey, 220 Aiken vs. Connelly, 405, 461 Akerly vs. Vilas, 556 Akers vs. Akers, 229 Albee vs. Winterink, 864 Albert Wilt vs. Huffman, 456 Albro vs. Lawson, CIO Alcorn vs. Rafferty, 339 Aleott vs. Avery, 427 Alderson vs. Biggars, 299, 300, 301 Alderson vs. Kanawha, 464, 512 Alexander vs. Alexander, 66a, 136, 859 Alexander vs. Davis, 42, 45, 86, 399, 401, 603, 659, 665 Alexander vs. Howe, 596 Alexander vs. Manning, 737 Alexander vs. McDaniel, 548 Alexander vs. Pendleton, 337 Alford vs. Moore, 713 Alford vs. Stone, 870 Allen vs. Allen, 458 Allen vs. Belches, 566 Allen vs. C-ole, 673 Allen vs. Crank, 548 Allen vs. Crobcroft, 707 Allen vs. Elder, 591 Allen vs. Fitch, 198 Allen A's. Hawley, 732, 966 Allen vs. McGee, 822 Allen vs. McNevv, 166 Allen vs. Poole, 906 Allen vs. Shriver, S56 Allen vs. Smith, 92, 630 Allen vs. Wilson, 58, 914 Allgood vs. Bank of Piedmont, 212 Allore vs. Jewell, 905 Almond vs. Almond, 589, 896 Almond vs. Wilson, 86, 121, l.'?6, 663 Alpine Cotton Mills vs. Weil, 700 1503 Altizer vs. Buskirk, 378 Am. L. Ins. & T. Co. vs. Sackett, 171 Ambler vs. Leach, 27, 29, 33 Ambler vs. Macon, 211 Ambler vs. Norton, 119, 385 Ambler vs. Wyld, 611 Ambrous Heirs vs. Kellar, 1239 Ambrouse vs. Keller, 208, 214, 215, 230 American Bell Tel. Co. vs. Southern Bell Tel. Co., 138 American Bible Soc. vs. Hague, 289, 340, 341 American Freehold Land & Mort- gage Co. vs. Sevvell, 116 American Waterworks Co. vs. Walk- er, 295 Ames vs. Winsor, 29 Amick vs. Holman, 490 Amiss vs. McGinnis, 98, 214, 216, 217, 218 Ammons vs. Ammons, 95, 228, 685, 686 Ammons vs. South Penn. Oil Co., 628 Amory vs. Fellowes, 489 Amos vs. Stockart, 464, 465 Amter vs. Studer, 84a Anderson vs. Anderson. 589 Anderson vs. Cranmer, 527, 659, 660, 661, 663 Anders-on vs. Doolittle, 253 Anderson vs. Harvey, 358 Anderson vs. Jarrett, 526 Anderson %'s. Johnson, 238, 241, 657, 779. 786, 795 Anderson vs. Kanawha Coal Co.. 339, 767, 859, 1024 Anderson vs. McKinney, 857 Anderson vs. Moore, 557 Anderson vs. Mossy Creek Woolen Mills Co., 541a Anderson vs. Nagle, 358, 403, 543, 506, 644 Anderson vs. Taylor, 113 Anderson vs. Wilson, 106, 199 Andrews vs. Roanoke Bldg. Associa- tion & Invest. Co., 912 Andrews vs. Roseland Iron & Coal Co., 358 Angell vs. Angell, 107a, 153, 154 Ansbaeher vs. DeNevue, 2 An.sley vs. Glendenning, 336 Apple vs. Ganong, 626 Arbogast vs. MoGraw, 693 Arbuekle vs. McClanahan, 1216 Archer vs. Jones, 304 Argand Refining Co. vs. Quinn, 939 Argenbright vs. Campbell, 344 Armentrout vs. Shaffer, 651 Armistead vs. Dangerfield, 593 Arrastead vs. Bailey, 210, 215, 216, 21S, 228, 229, 231. Armstiong vs. Conner, 116 Armstrong vs. Crocker, 426 Armstrong vs. Grafton, 850 Armstrong vs. Pitts, 557 Armstrong vs. Poole, 614 Armstrong vs. Potts, 707 Armstrong vs. Stone. 602 Armstrong vs. Town of Grafton, 5~?- Armstrong vs. Walkup. 579 Armstrong vs. Wilson. 192, 351 Arnold vs. Alden, 870 Arnold vs. Arnold. 136, 136a, 575, 658 Arnold vs. Brinnell. 361 Arnold vs. Bunnell. .161 Arnold vs. Casner, 40, 62, 117, 692. 913 Arnold vs. Coburn. 70, 60S Arnold vs. Richmond Iron Work^, 906 Arnold vs. Slaughter, 409, 411, 413, 417, 637 .-Vrnold vs. Welton, 438 Arthur vs. Oakes. 958 Artrip vs. Rasnake, 596 .\shby vs. Bell, 355, 405, 607, 646 TABLE OF CASES. 1502 (References are to sections.) Ashby vs. Smith, 856 Ashford vs. Patton, 211 Ashly vs. Ashly, 36 Ashmead vs. Reynolds, 905 Askey vs. 'Williams, 867 Aslop vs. Catlett, 340 Aspinwall vs. Barrickman, 568 Asylum vs. Lefebre, 1336 Asylum vs. Miller, 361, 370, 578 Atchison, etc., R. Co. vs. Meek, 482 Atchison, T. & S. F. R. Co. vs. Bur- lingame Tp., 361 Atchison, T. & S. F. R. Co. vs. Pear- son, 482 Atherton vs. Hull, 46, 573 Atkins vs. Edwards, 732 Atkins vs. Swope, 791 Atkinson vs. Beckett, 714 Atkinson vs. Foster, 404, 439, 441 Atkinson vs. Hoi thy, 618 Atkinson vs. Marks, 351 Atkinson vs. Monks, 579 Atl. Ins. Co. vs. Lunar, 156 Atlanta Land & Loan Co. vs. Haile, 464 Attorney-General vs. Brown, 298 Attorney-General vs. Cohoes Co., 429 Attorney-General vs. Foster, 187 Att'y-Gen'l vs. Utiea Ins. Co. 67 Atwell vs. Ferrett, 157 Atwood vs. Shenandoah Val. R. Co., 171, 463, 494. 627 Aultman vs. Bishop. 77 Aultmyer vs. Caulfield, 47, 764, 765 Austin vs. Burgett, 787 Avei-y vs. N. Y. Cent. & H. R. R. Co., 331 Ayers vs. Alphin, 183 Ayers vs. Valentine, 335 Aylet vs. Easy. 206 Aylett vs. Robinson, 366 Aylett vs. Walker, 46 Aymer vs. Roff, 811 Ayres vs. Blair, 674 Ayres vs. Robins, 608, 661 Axtell vs. Pulsifer, 211, 218 Babcock & V\'. C. Co. vs. Pioneer Iron Works, 344 Babcock vs. Wolf, 556 Bacon vs. Cottrell, 933 Bacon vs. Scheftiin, 342 Badean vs. Rogers, 147 Badger vs. Phinney, 906 Baer Sons' Grocery Co. vs. Wil- liams, 601 Bagwell vs. McTighe, 538 Bailey vs. Bailey, 540, 589, 602 Bailey vs. Bamberger, 906 Bailey vs. Chafee, 1366 Bailey vs. Fox, 115 Bailey vs. Inglee, 36 Bailey vs. Ingles, 86 Bailey vs. James, 591 Bailey vs. Robinson, 577 Baird vs. Bland, 365 Baird vs. Price, 141 Baker vs. Baker, 36, 323, 326, 334 Baker vs. Bancroft, 870 Baker vs. Briggs, 592, 697 Baker vs. Brown, 79 Baker vs. Carpenter, 165 Baker vs. Morris, 158 Baker vs. Oil Tract Co.. 192, 562, 669 Baker vs. Prizer, 171 Baker vs. Rockabrand, 4 Baker vs. W. Min. & M. Co., 349 Baker vs. Young, 580 Balchen vs. Crawford. 449 Baldenberg vs. Walden, 551 Baldenberg vs. Warden, 551 Baldenberg vs. Warder, 130 Baldwin vs. Darst, 865 Baldwin vs. Parker, 545 Balfour-Guthrie Invest. Co. vs. Geiger, 744 ' Ball vs. Kane. 546 Ball vs. Warrington, 15 Ballard vs. C. & 0. Ry. Co., 3, 283 Ballard vs. Great Western Min. & M. Co., 773, 779 Ballard vs. Kennedy. 205, 408 Ballentine vs. Beall, 85 1506 TABLE OF CASES. (References are to sections.) Ballou vs. Ballou, 361 Baltimore, etc., Co. vs. Williams, 628 Baltimore &, 0. R. R. Co. vs. Galla- hue, 799, 804 Balto. & Ohio R. Co. vs. Sherman, 287, 875 Banlc vs. Anderson, 210, 226 Bank vs. Bangs, 447 Bank vs. Bank, 235 Bank vs. Daj', 809 Bank vs. Farthing, 85 Bank vs. Fleshman, 1218 Bank vs. Good, 605, 606 Bank vs. Hays, 182 Bank vs. Jarvis, 679, 682 Bank vs. Jeffries, 133c Bank vs. Manoni, 866 Bank vs. Messereau, 402 Bank vs. Parsons, 397, 487 Bank vs. Pollock, 86 Bank vs. Rueker, 566 Bank vs. Shirley, 210, 211, 219, 228, 350, 645, 654 Banks vs. Walker, 299 Bank vs. Watson, 577 Bank vs. Wilson, 93, 106, 217, 218, 226, 227, 572, 598 Bank of Alexandria vs. Patton, 448 Bank of Northern Liberties vs. Mun- ford, 805 Bank of Ravenswood vs. Hamilton, 464 Bank of United States vs. Carring- ton, 133e Bank of U. S. vs. Mesiger, 848 Banks vs. Burnam, 520 Banks vs. Fowler, 871 Banner vs. Dingus, 745 Bannon vs. Comegys, 323 Barague vs. Siter, 404 Barber vs. Reynolds, 332 Barbour vs. The Commonwealth, 534 Barbour vs. Tompkins, 373, 605, 606, •639, 646, 652, 671 Barbour vs. Whitlock, 482 Bardell vs. Brady, 82 Barfield vs. Nicholson, 1272 Barger vs. Buckland, 598, 681, 866 Barker vs. McCoy, 603 Barker vs. Oil Tract Co., 59 Barkman vs. Duncan, 874 Barkman vs. Welch, 514 Barksdale vs. Neal, 29 Barkwell vs. Swann, 105 Barlow vs. Burr, 871 Barnard vs. Gantz, 905 Barnell vs. Marion, 79 Barner vs. Bayless, 227 Bai'nes vs. Jones, 732 Barnes vs. Scott, 339 Barnes vs. Trafton, 607 Barnett vs. Daniell, 764 Barnett vs. Montgomery, etc., R. R. Barnett vs. Smith, 223 Co., 475 Barnett vs. Watson, 478 Barney vs. Latham, 36 Barr vs. Clayton, 36, 38, 116, 304 Barraque vs. Siter, 447 Barrere vs. Barrere, 602 Barrett vs. Churchill, 835 Barrett vs. McAllister, 20, 317, 372, 384, .387, 388, .393, 434. 452. 576, 581, 583 Barrett vs. Spencer, 865 Barringer vs. Barringer, 118 Barrington vs. Tristram, 870 Barrow vs. Richard, 81 Barry vs. Wachosky, 2 Barstow vs. Smith, 297 Bartelott vs. International Bank, 507 Bartels vs. Hovey, 871 Barth Gas Light Co. vs. Claffy, 914 Bartlett vs. Bartlett, 124 Bartlett vs. Cleavinger, 541a, 552 Bartlett vs. Gale, 444, 516 Bartlett vs. McAllister, 308 Bartlett vs. ]\IcKinney, 482. 490 Bartlett vs. Parks, 84 Barton vs. Barbour, 750 Basket vs. Moss, 592 Bassett vs. Cunningham, 316, 401a Basye vs. Brown, 2 Bataile vs. Maryland Hospital, 582 TABLE OF CASES. 1507 (References are to sections.) Batehelder vs. Batehelder, 118 Hatchelder vs. White, 65, 86, 136, 438 Bate vs. Bate, 206 Bates vs. Skldmore, 840 Battaile vs. Hospital, 209 Battaile vs. Maryland Hospital, 349, 576, 845 Battin vs. Wood, 362 Battle vs. Davis, 875 Battle vs. Shute, 80 Baugher vs. Crane, 81 Baugher vs. Eichelberger, 117, 170, 550, 551, 568, 568a, 573 Bauer Grocer Co. vs. Zelle, 334, 341 Baxter vs. Baxter, 36, 870 Baxter vs. Tanner, 598 Baylor vs. B. & 0. R. R. Co., 253, 859 Baylor vs. Dejarnette, 378 Bayley vs. Delvalkiers, 408 Beach vs. Norton, 289 Beach vs. Woodyard, 553, 554 Beadel vs. Perry, 945a Beadle vs. Seat, 306 Beal vs. Gibson, 716 Beale vs. Beale, 613, 629 Beale vs. Gordon, 374 Beale vs. Hall, 628 Bean vs. Simmons, 420 Beall vs. ShauU, 137, 525 Beall vs. Silver, 105 Bear vs. Cohen, 779 Beard vs. Arbuckle, 227, 596, 680, 733 Beating vs. Darning, 69 Beatross vs. JIcLaughlin, 708 Beattie vs. Wilkinson, 575 Beatty vs. Barley, 211 Beatty vs. Dixon, 900 Beaty vs. Downing, 69 Beaty vs. Veon, 681, 682 Beauehamp vs. Putnam, 206 Beazley vs. Sims, 607 Beck vs. Beck, 104, 202, 596 Beckerdike vs. Allen, 444 Beckle vs. Chrjsman, 800 Beckley vs. Palmer, 564, 571, 697 Beckvvith vs. Butler, 439, 511 Beckwith vs. Howard, 81 Beckwith vs. Seeborn, 88 Beekman vs. Walers, 859 Bedell vs. Hoffman, 144 Bedill vs. Hoffman, 139 Bedinger vs. Wharton, 903 Bee vs. Burdett, 437, 439, 443, 452, 454, 511 Beecher vs. Crouse & Bruce, 69 Beekman vs. Gibbs, 447 Beekman vs. Waters, 338 Beery vs. Irick, 572, 578 Behrensmyer vs. Kreitz, 489 Belck vs. Belck, 471 Belknap v.s. Gleason, 363 Belknap vs. Trimble, 88 Bell vs. Crawford, 366 Bell vs. Hall, 340 Bell vs. MeConkey, 614 Bell vs. ilenifield, 129 Bell vs. Moon, 438, 439, 440, 511 Bell vs. Morrison, 366 Bell vs. Wood, 364 Belleville vs. Citizens' Horse E.y. Co., 750 Bellows vs. Stone, 329 Belmont Min., etc., Co. vs. Costigan, 115 Belton vs. Apperson, 321, 322, 323, 324, 326, 327, 340 Belton vs. Williams, 302 Bemis vs. ^IcKenzie, 538 Ben vs. Hatcher. 769 Benedict vs. Gilman, 933 Benedict vs. Johnson, 29 Benham vs. Purdy, 480 Benn vs. Hatcher, 1090 Benneson vs. Bill, 743 Bennison vs. McConnell, 57 Bennett vs. Abrams, 615 Bennett vs. Bennett, 118, 431, 486 Bennett vs. McGuire, 739 Bennett vs. Pierce, 414, 416 Bennett vs. Rosenthal, 618 Bennett vs. Wheeler, 821 1508 TABLE OF CASES. (References are to sections.) Bennington Iron Co. vs. Campbell, .335 Bensimer vs. Bell., 378 Bensinier \'s. Fell, 59 Benson vs. Humphreys, 893 Benson vs. LeRoy, 440 Benson vs. Shyder, 59 Benson vs. Wolverton, 848 Bentley vs. Greer, 906 Bentley vs. Standard Fire Ins. Co., 364 Benton vs. Craig, 482 Benzein vs. Lenoir, 49 Bercy vs. Lavietta, 304 Bergen vs. Riggs, 468 Berlin vs. Melhorn, 680 Berkley vs. Van Wyck, 444 Berkshire vs. Evans, 39, 133c. Bermost vs. Murrin, 621 Bernhardt vs. Brown, 538 Berry vs. Innes, 615 Berry vs. Makepeace, 80 Berry vs. Metzler, 474 Berry vs. Weisse, 608 Best vs. Clyde. Ill Best vs. Stow, 508 Bethune vs. Darne, 54 Eethune vs. Wells, 58 Bettman vs. Harness, 705 Bevans vs. Sullivan, 447 Beveridge vs. Lacey, 67 Beverly vs. Brooke, 730. 732, 734, 761 Beverley vs. Brooke, 856, 861, 866 Beverley vs. Walden, 661 Beverly vs. Lawson, 629 Beverly vs. Miller. 401 Beverly vs. Rhode, 117 Beverly vs. Rhodes. 12.3o, 584, 655, 913 Beverly vs. Walden, 659 Bias vs. Vickers, 138, 575 Bickle vs. Chrisman, 357, 365 Bier vs. Smith, 76 Biern vs. Ray, 374. 456 Bierne vs. Brovrn, 509 Bierne vs. Ray, 511, 573 Bigelow vs. Sanforil, 133e Bigoney vs. Stewart, 485 Bill vs. Schilling, 320, 321, 327, 364 Billings vs. Alar^h, 79 Billingslea vs. Gilbert, 704 Billingslea vs. Manear, 628 Billingsley vs. :\lenear, 65, 105, 120 Bilmeyer vs. Sherman, 59, 290, 6.)j Bihnyer -i-s. Sliernian, 866 Bingham vs. Barley, 906 Bingham vs. Calvert, 66 Birch vs. Linton, 906 Bird vs. Bird, 285. 8'4 Bird vs. Cotton, 875 Bird vs. Stout, 171, 327 Birdseye vs. Heilner, 393 Birdsong vs. Birdsong, 905 Birnbaum vs. Salomon, 718 Bisel vs. Tucker, 110 Bishop vs. Goodhart, 539 Bissell vs. Michigan S. & N. I. R. Co., 014 Bissell vs. Railroad Co., 914 Bisson vs. Curry, 740 Black vs. Miller. 388 Black vs. Smith, 123 Black vs. Shreeve, 560a Blackwell vs. Blackwell. 62, 85 Blackwell vs. Bragg. 365 Blackwell vs. Fry. 7S4 Blackett vs. Laimbeer, 85 Biackshire vs. Pettit. 541a Blade vs. Noland. 610 Blagan vs. Smith, 67 Blair vs. Central City Street R. Co., 329 Blair vs. Core. 63, 417, 671o, 690, 874, 875 Blair vs. Say re, 831 Blair vs. Thompson, 61. 205, 578 Blair vs. Wilson, 361 Blair vs. Winston. 770 Blake vs. Black, 133, 1336 Blake vs. Ohio R. R. Co., 374 Blanc vs. Paymaster Mining Co., 65 Blanchard vs. Brown. 791 Bland vs. Stewart. 93, 573, 632, 633 Bland vs. Wyatt, 572, 629 Blankenship vs. Stout, 906 TABLE OF CASES. 150'J (References are to sections.) Blanton vs. Carroll, 374 Blanton, Com'r, vs. Southern Fer- tilizer Co., et al., 67 Sleeker \s. Bingham, 299 Bleight vs. Mollvoy, 214 Blessing vs. Beatty, 893 Blight vs. Banks, 447 Blincoe vs. Berkeley, 477 Bliss vs. Anderson, 109 Blodgett vs. Hobart, 198 Blodgett vs. Town of Brattleboro, 13 Blondheim vs. Moore, 734 Bloodgood vs. Clark, 742, 745 Bloomfield vs. Snowden, 716 Bloss vs. Hull, 133;i, 492 Blossom vs. The Milwaukee Rail- road Co., 678 Blow vs. Maynard, 439 Blow vs. Taylor, 713 Blubaugh vs. Loomis, 600 Board vs. Callahan, 378 Board of Liquidation vs. McComb, 67 Board of Trustees vs. Blair, 541 Board vs. Wilson, 70 Boardman vs. Taylor, 133tt Bobe vs. Stiekney, 404 Bock vs. Book, 184, 190, 401, 580 Bodkin vs. Eollyson, 212 Bodkin et al. vs. Arnold, 376 Boes vs. Hoeg, 340, 341 Bogacki vs. Welch, 727 Bogan vs. Hamilton, 496 Bogardus vs. Trinity Church, 387, 304, 558 Boggess vs. Goff, 628 Boggess vs. Robinson, 349 Boggess vs. Scott, 549 Boggs vs. Harper, 538 Boggs vs. McCoy, 65, 599 Bogle vs. Fitzhugh, 571 Bohn vs. Devlin, 482 Bohn vs. Zeigler, 412, 767, 770 Bohn Mfg. Co. vs. Hollis, 958 Boisseau vs. Boisseau. 668 Boisseau vs. Kahn. 767 Eolles vs. Duff, 609, 933 Boiling vs. Tate, 699 Bolton vs. Landers, 289 Bomar vs. Means, 65, 85 Bonaparte vs. Camden R. Co., 718 Bond vs. Davis, 568 Bonnell vs. Allen, 81 Bonner vs. Brown, 77!) Bonnett vs. Pierce, 413, 414 Bool vs. Mix, 906 Boody vs. McKenny, 906 Boody vs. McKinney, 906 Boone vs, Cliiles, 353 / Boone vs. -Jackson, 73 Boorly vs. ;\leKinney, 906 Booth vs. Smitli, 856, 1104 Booth vs. Wiley, 859 Borden vs. Conklin, 133e Borrowscale vs. Tuttle, 843 Borst vs. Boyd, 176 Borst vs. Corey, 363 Borst vs. Nalle, 308 Borton ^'s. Borton, 022 Boruff vs. Stipp. 66 Boseher vs. Jtmgon, 893 Boscher vs. R. & H. Land Co., 85 Boschette vs. Power. 852 Boston vs. Xiehols, 703 Boston Blower C TABLE OF CASES. 1515 (References are to sections.) Citizens' State Bank vs. Hawkins, 914 City Bank vs. Bangs, 147, 450 City of Richmond vs. Crenshaw, 78 City of Wheeling vs. Campbell, 370 Chaff ey vs. Led with, 545 Claflin vs. Ballance, 541a Claflin vs. Steenbock, 784 Clancy vs. Crane, 297 Clanton vs. Wright, USd Clarek vs. Long^ 71 Clare vs. Nordell, 187 Clark vs. Cockwell, 876 Clark vs. Edney, 46 Clark vs. Farrow, 217 Clark vs. Hall, 586 Clark vs. Hardiman, 361 Clark vs. Hundley, 840 Clark vs. Long, 36, 302 Clark vs. McClure, 358 Clark vs. Mutual Reserve Fund Life Assn., 295 Clark vs. Oliver, U3f Clark vs. Tinsley. 254, 415 Clark vs. Turner, 547 Clark vs. Van Riensduk, 447 Clark vs. Wright, 862 Clarke vs. Hoomes, 701 Clarke vs. Kathewson. 181 Clarke vs. Shanklin, 690 Clarke vs. Tipping, 1263 Clarkson vs. DePeyster, 299 Clarkson vs. Doddridge, 690 Clarkson vs. Read, 677, 690 Clason vs. Mtorris. 404, 405 Clason vs. Parrish, 512 Clay vs. City of Albans, 84(i Clay vs. Deskins, 130 Clay vs. Nelson, 780 Clay vs. Towle, 444. 445 Clayton vs. Anthony. 208, 221, 224, 225. 728 Clayton vs. Henley. 91, 354 Cleavenger vs. Franklin Fire Ins. Co., 0, 962 Cleaver vs. Matthews, 108 Cleavinger vs. Felton, 93. 226, 227 Cleland vs. Casgrain, 136a Clemens vs. Heckscher, 79 Clements vs. Moore, 439 Clendenin vs. Conrad, 577 Clendening vs. Conrad, 248, 349, 800 Cleveland vs. Chamblis, 198 Clifford vs. Heald, 308 Clinch River Mineral Co. vs. Har- rison, 465, 510, 704 Cline vs. Catron, 358 Clowser vs. Hall, 779, 1090 Clutch vs. Clutch, 118 Coal vs. Mildred, 38 Coal River Navigation Co. va. Webb, 34, 456, 511, 597 Coalter vs. Bryan, 82, 665 Coalter vs. Coalter, 358 Cobbey vs. Wright, 2 Cochran vs. Fillans, 248 Cochran vs. Fillins, 133d Cochran vs. Richmond & A. R. Co., 869 Cochrane vs. Hyre, 433 Cock vs. Fridley, 116 Cocke vs. Gilpin, 230, 566 Cocke vs. Harrison, 578 Cocke vs. Pollock, 696 Cockey vs. Cole, 680 Cocks vs. Simmons, 714 Coda vs. Thompson. 13, 798 Codd vs. Codd, 118 Coddington vs. Mott, 329, 340 Coe vs. Lindley, 199 Coeur d'Alene Consolidated & Min- ing Co. vs. Miners' Union of Wardner, 958 Coffee vs. Black, 602 Coffin vs. Bell, 32 Coffin vs. Cooper, 111, 687 Coffman vs. Hendricks. 525, 545, 643 Coffman vs. Langston. 32. 133r, 171, .304, .324, 327, 643 Coffman vs. Sangston, 38, 39, 2W, Cogbill vs. Boyd. 630, 632 Cogbill vs. Kennedy, 137 Coger vs. Coger. 574, 589, 1194 Coquilland vs. Snydam, 515 1516 TABLE OF CASES. (References are to sections.) Cohen vs. Wolfi', 85 Coke Adiii'r vs. Gilpin, 568a Colbert vs. Pierey, 539 Cole vs. Ballard, 363, 364 Cole vs. Cole, 118, 646 Cole vs. Martin, 366 Cole vs. McCrea, 596 Coleman vs. Cocke, 600 t'oleman vs. Hudspeth, 707 Coleman vs. Lyne, 403, 415, 419, 510 Coleman vs. Moody, 481 Coleman vs. Rarran, 133e Coleman vs. Stearns Mfg. Co., 81 Coleman vs. Waters, 583, 777 Coleman vs. Woolley, 591 Coles vs. Ballard, 358, 364 Coles vs. Coles, 683 Coles vs. Hurt, 450 Coles vs. Withers, 362, 363 Coles vs. Yorks, 289 CoUett vs. Board Oom'rs, 370 Collier vs. Vason, 671a Collier vs. Whipple, 673 Collins vs. Colley, 748 Collins vs. Collins, 118 Collins vs. Knight, 109 Collins vs. Loflftus, 79 Collins vs. Lowry, 480 Collins vs. Ripley, 67 Collins vs. Sutton, 300, 301 Collis vs. Waddy, 356 Colsen vs. Leiteh, 123 Coltrane vs. Norvell, 248, 249 Colvert vs. Millstead's Adm'x, 353 Combs vs. Boswell, 447 Commercial Bank vs. Bergwyn. 538 Commercial Bank vs. Cabell, 717 Commonwealth vs Beaumarchis, 349 Commonwealth vs. Dandridge, 834 Commonwealth vs. Drake, 86, 136 -Commonwealth vs. Fry. 776 Commonwealth vs. Railroad Co., 67 Conant vs. Burns. 863 Conant vs. Conant, 118 Cone vs. Dunham, 53R Conger vs. Miller, 116, 199 Conn vs. Franklin Canal Co., 703 Conn. vs. Penn, 36 Connell vs. Wilhelm, 678, 682. 692 Conner vs. Allen, "805 Connolly vs. Connolly, 134, 210, 214, 215, 216, 225, ti(i4 Conover vs. Musgrave, 680 Conrad vs. Buck, 241, 289, 353, 354 Conroy vs. Carroll, 671a Consequa vs. Fanning, 233, 632 Constant vs. Lehman, 49 Contee vs. Dawson, 84 Continental Divide Alin. Invest. Co. vs. Bliley, 895 Converse vs. Myer, 506 Conway vs. Obert, 597 Cooeh vs. Cooch, 216 Cook vs. Bamfield, 223 Cook vs. Broomhead, 200 Cook vs. Culberton, 363 Cook vs. Bee, 346 Cook vs. Dews, 411 Cook vs. Dorsey, 91, 93, 98. 99, 106, 116, 296 Cook vs. Friley, 116 Cook vs. Hadley, 84 Cook vs. Phillips, 841 Cook vs. Wood, 349 Cookerly vs. Duncan, 199 Cooks vs. Cooks, 743 Cookson vs. Richardson, 507 Coon vs. Dennis, 52 Cooper vs. Cooper, 133f Cooper vs. Daugherty. 856 Cooper vs. Hepburn, 686, 817, 818, 874 Cooper vs. Reeves, 779 Cooper vs. Stinson, 490 Cope. Girard County vs. Harbin- son, 366 Copeland vs. Crane, 404 Copeland vs. McCue. 317. 456. 511 Copenhaven vs. Shuler, 622 Copper Co. vs. Scherr, 67 Copper Hill Min. Co. vs. Spencer, 744 Corbin vs. Mills. 438. 439. 440. 511, 1140 TABLE OF CASES. 1517 (References are to sections.) Corbin vs. Miller, 132 Cordier vs. Thompson, 875 Core vs. Bell, 81, 416 Core vs. Cornpton, 1 Core vs. Cunningham, G5, 600 Core vs. Dickenson, 74 Core vs. Faupel, 358 Core vs. Strickland, 211 Core vs. Strickler, 209, 219, 220, 567, 568, 568a, 680 Corey vs. Moore, 229, 639, 648 Cornelius vs. Post, 707 Cornell vs. Hartley. 376 Cornett vs. Combs, 471 Cornwell Mfg. Co. vs. Swift, 136a Corprew vs. Corprevv, 376 Corrothers vs. Harris, 60 Corrothers vs. Sargent, 228 Coryell vs. Klehin, 133g Cosner vs. Smith, 764, 765, 774 Coster vs. Clark, 210 Costers vs. Bank, 198 Cote vs. Murphy, 968 Cottington vs. Fletcher, 372 Cottle vs. Leitch, 629 Coughlin vs. Angell, 779 Coultas vs. Greer, 842 Coulthurst vs. Coulthurst, 199 County of Green vs. Bledsoe, 482 Courson vs. Parker, 27, 75 Covenhoven vs. Shuler, 622 Covey vs. Porter, 358 Cowand vs. Myers, 81 Coward vs. Chadwiek, 740 Cowart vs. Perrine, 389 Cowee vs. Cornell, 905 Cowen vs. Alsop, 417 Coyle vs. B. & 0. R. Co., 387 Co.x vs. Crockett, 374 Cox vs. Douglass, 122, 429, 706, 945, 1217 Cox vs. Horner, 227 Cox vs. McMullin, 612 Cox vs. Price, 193, 478, 671 Coxe vs. Halstead, 671a Cozine vs. Graham, 308, 388 Cozina vs. Graham, 299 Crabtree vs. Dunn, 532 Crabtree vs. Old Dominion Bldg. & Loan x\ssn., 80 Craddock vs. Turner, .'i78 Craig vs. Chandler, 895 Craig vs. McCullocli,, 606 Craig vs. Sebrell, 30, 34, 403, 575 Cralle vs. Cralle, 199, 241, 425, 540, 002, 645, 646 Cralle vs. Meem, 680 Crane vs. Deming, 302 Crane vs. Ely, 111 Cranford vs. Smith, 356, 361 Cranfcrd vs. Tynell, 67 Cranmer vs. McSvvords, 362, 364, 605, 1156 Cranshaw vs. Seigfried, 671 Craver vs. Spencer, 76 Crawford vs. Carper, 354 Crawford vs. Creswell, 133 1336 Crawford vs. Gamble, 302 Crawford vs. McDaniel, 893 Crawford vs. Ross, 740 Crawford vs. Scovell, 815 Creath vs. Sims, 49 Crebs vs. Jones, 541, 658 Creed vs. Lancaster Bank, 214 Creekmur vs. Creekmur, 358 Creigh vs. Boggs, 76 Crenshaw vs. Clark, 436 Crenshaw vs. Sei'^fried, 713 Cresap vs. Kemble, 564 Cresinger vs. Welch, 906 Crews vs. Garland, 13 Criekard vs. Crickard, 616 Crickard vs. Crouch, 91, 136, 577 Crislip vs. Cain, 41, 631, 646, 687 Crislip vs. Teters, 600 Crim vs. Davidson, 349 Crim vs. Davisson, 568 Crim vs. England, 376, 378 Crim vs. Harmon, 238, 765, 766, 770 Crim vs. Post, 671 Crim vs. Price, 59 Crim vs. Town cf Philippi, 78, 954 Crimley vs. Lcvctt, 539 Criss vs. Criss, 362. 363 Crittendon vs. Decker, 85 1518 TABLE OF CASES. (References are to sections.) Crocer vs. Gano, 482 Crockett vs. Sexton, 679 Crockett vs. Woods, 299 Cromer vs. Pickney, 69 Cronie vs. Hart, 600 Crooks et al. vs. The People, 834 Cropper vs. Burtons, 403, 510 Cropsey vs. McKinney, 44 Crosby vs. Berger, 310 Crossgrove vs. Himmelrich, 489 Crothers vs. Crothers, 525 Crouch vs. Hall, 538 Crowell vs. Galloway, 13 Crumlish vs. Central Imp. Co., 375 Crumlish vs. Railroad Co., 131, 136, 170, 177, 227 Crumlish vs. Shenandoah Val. E,. Co., 62, 376, 744 Culbertson vs. Stevens, 775, 785 Culpepper Manf. Society vs. Digges, 58 Cumberland, etc., Co. vs. Hoffman, 876 Cummin vs. Bennett, 840 Cummins vs. Bennett, 276 Cummings vs. Coe, 125 Cunningham vs. Cunningham, 308, 434 Cunningham vs. Hedrick, 453, 608 Cunningham vs. Pell, 338, 859 Cunningham vs. Smith, 387 Curling vs. Townshend, 515 Curliss vs. Marquiss Townshend, 347 Currence vs. Daniels, 69 Currence vs. Ward, 133e Currey vs. Lawler, 550, 568 Curry vs. Allen, 613 Curry vs. Hale, 47, 776 Curry vs. Hill, 951 Curry vs. Hill & Curry, Trustees, 60 Curry vs. Mannington, 359, 360 Curtis vs. Leanti, 323 Curtis vs. Lunn, 384 Curtis vs. Smith. 616 Curtis vs. Thompson, 678, 683 Cushman vs. Bonficld, 510, 514 Cushwa vs. Imp. Loan and Build. Ass'n, 548 Custer vs. Custer, 568a, 599 Cutler vs. Maker, 487 Cuyamaca Granite Co. vs. Pac. Pav. Co., 75 Cuyler vs. Bogert, 403, 510 C. & 0. Ry. Co. vs. Miller, Auditor, 67 C. & 0. R. R. Co. vs. Huse, 108 D Dabney vs. Dabney, 363 Dabney vs. Preston, 324 Da Costa vs. Dibble, 379 Dade vs. Madison, 447 Daggett vs. Colgan, 522 Daily vs. Warren, 46, 227, 648 Daingerfield vs. Smith, 211, 378 Dale vs. Roosevelt, 229 Dalton vs. Carr, 200 Damon vs. Damon, 43 Dane vs. Mace, 490 Dane vs. Walker, 870 Danforth vs. Herbert, 133(/ Dangerfield vs. Clariborne, 403 Dangerfield vs. Smith, 579, 629, 823, 1238 Daniel vs. Foster, 527 Daniel vs. King, 388 Daniels vs. Leitch, 680, 1209 Daniels vs. McGinnis. 3.50 Daniels vs. Pond, 81 Daniels vs. Taggart, 394 Daniels vs. Tearney, 914 Dans vs. Headley, 123 Danville vs. Waddili, 666 Danville Bank vs. Waddell, 368 Danville G. W. R. Co. vs. Brown, 32 Darby vs. Gilligan, 630 Dart vs. Houston, 701 Daugherty vs. Walters, 561 Davenport vs. Farrer, 119 Davenport vs. Kirkland, 350 Davenport vs. Tyrrel, 119 Davids vs. Newman, 69 TABLE OF CASES. 1519 (References are to sections.) Davidson vs. Coon, 538 Davis vs. Bonney, 760 Davis vs. Chapman, 732 Davis vs. Clabaugh, 558 Davis vs. Clark, 81 Davis vs. Collier, 104 Davis vs. Commonwealth, 774 Davis vs. Crews, 1171 Davis vs. Dean, 905 Davis vs. Deming, 133h, 951, 1228 Davis vs. Dudley, 906 Davis vs. Dunkell, 289 Davis vs. Emerson, 593 Davis vs. Gray, 67, 749 Davis vs. Hall, 840 Davis vs. Henry, 76, 302 Davis vs. Landcraft, 98, 123 Davis vs. Lennen, 592 Davis vs. Morriss, 4, 132, 215, 638 Davis vs. Nisevonger, 746 Davis vs. Eowe, 378 Davis vs. Settle, 656 Davis vs. Snead, 63, 730, 751, 753 Davis vs. St. Louis & S. F. Ry. Co., 629 Davis vs. Talbot, 76 Davis vs. Williams, 76 Davis Sewing Machine Co. vs. Dun- bar, 214 • Davisson vs. Schermerhorn, 387 Davou vs. Fanning, 299 Dawes vs. New York, P. & N. R. Co., 369 Dawson vs. Briscoe, 548 Dawson vs. New York, etc., R. Co., S Day vs. Hale, 492 Day vs. Martin, 60 Dayton vs. Connah, 751 Dayton vs. Dayton, 105 Dean vs. Cannon, 1256 Dean vs. Phillips, 136 Deane vs. Cannon, 873 Deans vs. Scriba, 339 Dearing vs. Selvey, 536 Deas vs. Harvie, 859 Dease vs. Manly, 105 DeCamp vs. Carnahan, 592 Deckel vs. Smith, 685 Decker vs. Miller, 862 Defarges vs. Lipscomb, 865 De Farges vs. Ryland, 532, 536 Degraffermierd vs. Donald, 865 DeGreiflf vs. Wilson, 75 Deimel vs. Brown, 441, 447 Delaplain vs. Armstrong, 279, 280, 765 Delaplaine vs. Lawrence's Adm'r, 678 Deleourt vs. Whitehouse, 285 Delling vs. Fultz, 568a Dellinger vs. Foltz, 220, 584, 1220 Deloney vs. Hutcheson, 429 De Louis vs. Meefe, 85, 961 Demarest vs. Wynkoop, 365 Deii vs. Zellers, 676 Denike vk. Denike, 378 Denning vs. Smith, 433 Dennis vs. Dennis, 133f Dennison vs. Bassford, 408 Dennison vs. Benner, 801 Dennison vs. Taylor, 802 D3nson vs. Denson, 214 Denton vs. Ontario County Nat. Bank, 933 Denton vs. White, 615 Depue vs. Sargent, 551 Depue vs. Sergent, 343, 347 Derbyshire vs. Jones, 198 De Rose vs. De Rose, 861 Derton vs. Boyd, 871 Desmond vs. San Francisco Ct,, 29 De Treville vs. Ellis, 642 Detroit vs. Dean, ftl4 Devanbaugh vs. Devanbaugh, 44 De Vaughn vs. Husted, 661 Dever vs. Willis, 107 Dewing vs. Hutton, 537, 627, 628, 641, 648, 653, 1117 DeWolf vs. Mallett, 106 Dews vs. Cornish, 105 Dexter vs. Arnold, 71 Dexter vs. Cotting, 133 Diament vs. Colloty, 539 Diamond State Iron Co. vs. Alex. K. Rarig Co., 374 Diamond, etc., Co. vs. Rarig, 214 1520 TABLE OF CASES. (References are to sections.) Dias vs. Barchand, 298 Dick vs. Robinson, 568, 568a Dickens vs. Bankers', etc., Co., 373 Dickeiman vs. Burgess, 675 Dickerson vs. Bankers' Loan & In- vestment Co., 120, 122 Dicl-terson vs. Winslow, 85 Dickershied vs. Bank, 146 Dickinson vs. Jones, 81 Dickinson vs. Lewis, 349 Dickinson vs. McCraw, 774 Dickinson vs. Railroad Co., 412, 447, 543, 581 Diedrich vs. People, 1272 Diehl vs. Marcliant, 133, 374 Dierolf vs. Winterfleld, 787 Diffendal vs. Va. M. Ey. Co., 229 Digges vs. Dunn, 350 Dillard vs. Cent. Virginia Iron Co., 15, 20, 21, 571 Dillard vs. Collins, 358, 497 Dillard vs. Dillard, 136, 350, 374, 376, 622 Dillard vs. Krise, 17, 597, 631, 634, 1237 Dillard vs. Thornton, 349 Dilling vs. Foster, 751 Dillis vs. Jasper, 076 Dilly vs. Doig, 84 Dimpfell vs. Railway Co., 58, 914 Dingess vs. Branson, 546, 547 Dingess vs. Marcum, 209, 212, 1231 Dinguid vs. Schoolfield, 366 Dinsmore vs. Crossman, 156 Dipper vs. Durifnt, 332 District Grand Lodge vs. Marx, 136a Divinal vs. Smith, 159 Divine vs. Harvey, 776 d'ix vs. Briggs, 85, 746 Dixon vs, Dixon, 392 Dixon vs, McCree, 686 Dixon vs. Merritt, 906 Dixon vs. Rutherford, 845 Dobbin vs. Rex, 362 Dobbins vs. Higgins, 339 Dock vs. Dork, 161 Dod vs. Northrop, 487 Dodge vs. Evans, 105 Dodge vs. Hall, 327 Dodge vs. Minnesota Plastic Slate Roof Co., 875 Doe vs. Jackson, 818 Doherty vs. Holiday, 65 Dolan vs. Armstrong, 783 Dollins vs, Lindsey, 791 Donahue vs. Tackier, 36, 38, 62. 91, 670 Donaldson vs, Williams, 125 Donally vs. Ginatt, 865 Donnell vs. King, 433 Donnelly vs, Wilcox, 376 Donovan vs. Campion, 42k Donovan vs. Ward, 906 Doolittle vs, Doolittle, 861 Doonan vs. Board of Education, 78 Doonan vs, Glynn, 322, 378, 551, 552, 626 Door vs. Dewing, 630 Dorr vs, Rohr, 358, 634 Dorrier vs. Masters, 764, 775 Dosewell vs, Buchanon, 384 Doss vs. Tyack, 351 Douglass vs, Boardman, 1366 Douglass vs, Kanawha & il. R. Co-, 520, 875 Douglass vs, JlcCoy. 597, 606 Douglass vs. R, R, Co,, 287 Douglass vs, Sherman, 187 Douglass vs. Spoor, 651 Douglass vs. Wiggins, 81 Douglass County vs, Walbridge, 49 Dower vs. Church, 82, 134. 216, 225, 546, 621, 664, 665, 1243 Dower vs. Seeds, 963, 1244 Downer vs, Staines, 317 Downey vs, Hendrie, 522 Downing vs. Wherein, 116 Downman vs. Rust, 384, 433 Dows vs, JIcMichael, 393, 394 Dcylo vs. Devare, 845 Dnyle vs. Whal-n, 334 Dozier vs. Logan, 740, 745 Drake vs. Ramsey, 906 Draper vs. Draper, 13 Draper vs. Gordon, 195 TABLE OF CASES. 1521 (References are to sections.) Dravo vs. Fable, 444 Drever vs. Fortner, 105 Drumrlght vs. Hite, 354, 358 Dubois vs. Mason, 538 Dubourg de St. Oolombe vs. U. S., 646 Dudley vs. Minor, 717 Duerson vs. Alsop, 913 Dufair vs. Anderson, 791 Dugger vs. Taylor, 69 Duguid vs. Patterson, 19 Dulaney vs. Smith, 69 Dulin vs. McCaw, 770, 778 Duraond vs. JMagee, 408 Dunbar vs. Buck, 75 Dunbar vs. Dunbar, 602 Dunbar vs. Wood, 567 Dunbar vs. \A'oodcock, 493, 646 Duncan vs. Custard, 598 Duncan vs. Duncan, 875 Duncan vs. Veal, 857 Duncan vs. Wright, 361 Dunfee vs. Childs, 117, 212, 214, 227, 365, 685, 840, 915, 1004 Dunham vs. Commissioners, 349 Dunham vs. Dunham, 540 Dunham vs. Jackson. 439 Dunlap vs. Dillard, 1148 Dunlap vs. Eden, 138 Dunlap vs. Hedges, 81, 732, 738, 1235 Dunn vs. Dunn, 11, 136, 1366, 137, 296, 401a Dunn vs. Renick, 210, 211, 215, 218 Dunne vs. Deery, 7.15 Dunphy vs. Travelers' Newspaper Ass'n, 58, 914 Dunscomb vs. Dunseomb, 133, 615 Dunston vs. Brown, 906 Dunston vs. Higgins, 375 Dupue vs. Sergent, 343, 347 Dupuy vs. Williams, 49 Durant vs. Crowell, 747 Durant vs. Essex Co., 376. 843 Dvirdant vs. Redman, 298 Durett vs. Davis, 399, .410, 575 Durfee vs. McClung, 513a Durgen vs. Harris^ 343 Durham vs. Heaton, 798 Durnford vs. Degruys, 676 Durrett vs. Davis, 940, 1063 Dutches vs. Dutciies, 431 Duval vs. Chelf, 66a, 399 Duval vs. Ross, 156 Duvall vs. Craig, 755 Duvall vs. Waters, 81 Duvals vs. Ross, 164 Dyer vs. Lincoln, 388 Dyer vs. Cranston Paint Works Co., 343 Dyer vs. Porter, 868 Dyett vs. North American Coal Co., 447 E Eakin vs. Hawkins, 311, 706 Eamea vs. Morgan, 339 Earl vs. Dresser, 133d, 246 Earl vs. Earl, 881 Earle vs. Art Library Pub. Co., 447 Earle vs. Earle, 896 East vs. Pedin, 50 Eastburn vs. Kirk, 851 East India Co. vs. Henchman, 560a East India Co. vs. Sandys, 157 Eastis vs. Montgomery, 547 East Tenn., etc., R. Co. vs. Arnold, 489 Eaton vs. Breathitt, 105 Eaton vs. Eaton, 906 Eaton vs. Hasty, 123 Ebert vs. Gerding, 211 Echols vs. Staunton, 506 Edgell vs. Smith, 323, 327, 495 Edichal, etc., Co. vs. Columbia, etc., Co., 572 Edmondson vs. Marshall, 295 Edmunds vs. Sf-ott, 614 Edwards vs. Drew, 475 Edwards vs. Hughes, 778 Edwardson vs. Mosely. 214 Effinger vs. Kenny, 686, 596 Effinger vs. Kerry. 680 Egberts vs. Wood, 39 1522 TABLE OF CASES. (References aie to sections.) Eggen vs. Huston, 80 Eib vs. Martin, 397 Eidson vs. Fontaine, 862 Elder vs. Harris, 316, 343, 420, 567, 568 Elderkin vs. Fitch, 205 Eldred vs. Hall, 748 Elkins vs. Edwards, 363 Ellerman vs. Chicago Junction R. & Union Stock Yards Co., 914 EUett vs. McGhee, 584 Elliott vs. Balcom, 214 Elliott vs. Trahern, 451, 452 Elliott vs. Whitmore, 723 Ellis vs. Harrison, 68 Ellis vs. Hill, 74 Ellis vs. Whittier, 856 Ellison vs. Peck, 607 Ellsworth vs. Curtis, 269 Ellworth vs. McCoy, 65 Ellzey vs. Lane, 208 Elmendorf vs. DeLancey, 106 Elmer vs. Leper, 324, 343 Ely vs. Lort'enstein, 42(i Elzas vs. Elzas, 589 Emmons vs. Murray, 906 Emmons vs. Pidcoek, 707 Emory vs. Vrooman, 680 Emory, etc.. College vs. Shoemaker College, 133e Empire Hotel Co. vs. Main, 746 Enders vs. Board of Public Works, 605 Enders vs. Swayne, 935 Endieott vs. Mathis, 722 Enewold vs. Olsen, 399 Englebert vs. Troxell, 906 Enoch vs. Mining & Petroleum Co., 4.54, 585, 625 Enoch vs. Oil Co., 452, 454 Enochs vs. Harrelson, 222 Enos vs. Cappa, 821 EnoB, Hill & Co. vs. Stanabury, 607 Enos va. Hunter, 4 Epes vs. Williams, 126 Ephling vs. Ephling, 118 Epps va. Randolph, 384 Erie R. Co. vs. Ramaey, 720 Erneat vs. Napier, 468 Erskine vs. North, 363 Erskine vs. Staley, 809 Erwin vs. Gainer, 818 Eslinger vs. East, 471 Estava vs. Leputa, 561 Estes vs. Bridgforth, 821 Estill vs. McClintic, 579, 645 Etowah Min. Co. vs. Wells Valley Min. & M. Co., 205 Etter vs. Scott, 668 Eubanks vs. Barnes, 123a Evans vs. Bacon, 961 Evans vs. Bradshaw, 873 Evans vs. Davies, 581 Evans vs. Evans, 69, 108 Evans vs. Huffman, 513a Evans vs. Johnson, 362, 363 Evans vs. Kelly, 573 Evans vs. Rice, 606 Evans vs. Shroyer, 645, 646 Evans vs. Taylor, 103 Evans vs. Wait, 561 Evans vs. Wall, 79 Evansville & I. R. Co. vs. Haw- kins, 471 Evelyn vs. Lewis, 749 Everts vs. Agnes, 455 Ewald vs. Crockett, 683 Ewart vs. Saunders, 597 Ewing vs. Ferguson, 59, 171, 226, 227, 324. 327, 401, 820. 913, 1237 Ewing vs. Litchfield, 311, 661 Ewing vs. Patterson, 199 Ewing vs. Winters, 603 Exchange Bank vs. Freeman. 802 Exchange Bank of Va. vs. Morrall, 610 Exchange Deposit Bank vs. Fugate, 620 Fadely vs. Tomlinson, 573, 70S, 712, 834 Fain vs. Crawford, 283 Fairbairn vs. Fisher, 742 TABLE OF CASES. 1523 (References are to sections.) Fairfax vs. Muse^ 566 Falconer vs. Stinson, 568 Falls of Neuse Mfg. Co. vs. Brow- er, 4 Falmouth Nat. Bank vs. Cape Cod Ship Canal Co., 746 Fanning vs. Dunham, 119a, 716 Fant vs. Miller, 166, 167, 404, 436, 438, 439, 463, 472, 481, 489, 496, 497 Fant vs. Miller & Mayhew, 404 Faremouth vs. Watson, 44 Farewell vs. Huling, 613 Farland vs. Wood, 108, 122 Farley vs. Batenian, 541 Farley vs. Farley, 118, 897 Farley vs. Kittson, 388, 392 Farley vs. Moog, 75 Farley vs. Tillar, 532 Fanner vs. State, 474 Farmer vs. Yates, 732 Farmers' Bank vs. Gettinger, 767 Farmers' Bank vs. Gould, 503, 525 Farmers' Bank vs. Reynolds, 856 Farmers' Bank vs. Watson, 628 Farmers' Bank vs. Willis, 519 Farmers' Bank vs. Woodford, 578, 593 Farmers' Loan & T. Co. vs. Sey- mour, 176 Farmers' Nat. Bank vs. Sutton Mfg. Co. 914 Farmers' & M. Bank vs. Butchers' & D. Bank, 914 Famey vs. Ferrell, 547 Farnsworth vs. Noffsinger, 52, 536, 546 Farr vs. Farr, 118 Farr vs. Sumner, 906 Farrant vs. Lovell, 81 Farrar vs. Hamilton, Taylor, 485 Farres vs. Young, 2 Farriers vs. Cairns, 858 Farrington vs. King, 848 Faulkner vs. Davis, 378, 816, 817, 819 Faulkner vs. Harwood, 157 Faulkner vs. Thomas, 548 Fayette Land Co. vs. L. & N. K. Co., 584 Fayette Land Co. vs. Louisville & N. R. Co., 608, 1093a Feamster vs. Withrow, 354, 496, 639, 648 Featherson vs. McDonald, 90G Feigley vs. Feigley, 589 Fellows vs. Fellows, 07, 84, 136, 136a Ferguson vs. Ferguson, 233 Ferguson vs. Franklins, 681 Ferguson vs. Glidevvell, 787 Ferguson vs. Grottoes Co., 3 Ferguson vs. Millender, 582 Ferguson vs. Railroad, 906 Ferguson vs. Ross, 13 Fernon vs. Butcher, 779 Feuchtvvanger vs. MeCool, 420 Fidelity Loan & Trust Co. vs. Den- nis, 596, 608 Field vs. Holland, 447 Field vs. Jones, 761 Field vs. Maghee, 38 Field vs. Schieflfelin, 200 Fife vs. Clarke, 787 Filbrun vs. I vers, 613 Filley vs. Register, 430 Finch vs. Rikeman, 157 Findlay vs. Sheffey, 405 Findlay vs. Smith, 511 Findlay vs. Trigg, 376 Findley vs. Findley, 654, 827, 829 Findley vs. Smith, 607, 622, 631, 648 Fink vs. Denny, 439, 440, 532, 536 Finlayson vs. Lipscomb, 178 Finney vs. Bennett, 117 Finney vs. Clark, 16 Fire & Marine Ins. Co. vs. Saun- ders, 387 First Nat. Bank vs. Ashville Furni- ture & Lumber Co., 796 First Nat. Bank vs. Elliott, 800 First Nat. Bank vs. Harkness, 238, 809 First National Bank vs. Hunting- ton Distillery Co., 35, 254, 421, 551 1524 TABLE OF CASES. (References are to sections.) First Wat. Bank vs. Hyer, 687 First Nat. Bank vs. Parsons, 415, 593, 614, 628 First Nat. Bank vs. Prager, 329 First Nat. Bank vs. Sarlis, 85, 88 First Nat. Banl< vs. Shuler, G5 First Nat. Bank vs. Sinims, 653 First Nat. Bank vs. Terry's Adm'r, 530 First Nat. Bank vs. TurnbuU & Co., 141 First Nat. Bank vs. Wire Works, 749 Fish vs. Miller, 389, 393, 394 Fishbaek vs. Ball, 591 Fishbnrn vs. Ferguson, 904, 1255 Fishburne vs. Ferguson, 191, 663 Fishburne vs. Furgeson, 541, 659 Fisher vs. Brown, 584 Fisher vs. Dickinson, 493, 494, 567 Fisher vs. Hartley, 367 Fisher vs. McNulty, 646 Fisher vs. White, 447, 584 Fiske vs. Pratt, 82 Fitch vs. Miller, 818 Fitz vs. Hall, 906 Fitzgerald vs. Arcl, 2 Fitzgei'ald a's. Ard, 2 Fitzgerald vs. Cumniings, 216 Fitzgerald vs. Phelps & Bigelow Windmill Co., 620 Fitzgibbon vs. Barry, 37 Fitzhugh vs. Anderson, 361 Fitzhugh vs. Fitzhugh Fitzhugh vs. Foots, 695 Flagg vs. Bonnell, 302, 559 Flannery vs. Hightower, 592 Fleming vs. Boiling, 230 Fleming vs. Bowling, 568, 508a Fleming vs. Holt, 38, 76, 84, 308, 372, 434, 449, 605. 606 Fleming vs. Hughes, 133 Flemings vs. Reddick, 686 Flesher vs. Hassler, 266, 267, 279 Fleshman vs. Floshman, 568 Fletcher vs. Holmes, 579 Fletcher vs. Updyke, 366 Flick vs. Fridley, 706 Flint vs. Gilpin, 358, 359, 360 Florida Cent. & P. R. Co. vs. Usina, 548 Floyd vs. Jones, 550, 551 Floyd vs. Natl Loan & Investment Co., 436, 952 Floyd vs. Ritter, 184 Fluharty vs. Mills, 314, 376 Flynn vs. Jackson, 439, 440 Fogg vs. Price, 304, 306 Foley vs. Riley, 293a Foley vs. Ruley, 13, 314, 628, 655, 875 Foley vs. Shriver, 800 Folsom vs. Evans, 731 Foote vs. Gibbs, 376 Forbes vs. Frary, 636 Forbes vs. Snyder, 506 Ford vs. Chester, 458 Foreman Shoe Co. vs. Lewis, 856 Forest vs. Stephens, 349 Forester vs. Forester, 119 Forqueran vs. Donnally, 116, 397, 456, 511 Forrester vs. Forrester, 110 Forsythe vs. City cf Wheeling, fl.")7 Forsythe vs. Clark and Stewart, 120 Ft. Dearborn Lodge vs. Kline, 55!) Fort Dodge City School Dist. vs. AVahkausa Dist. Tp., 875 Fort Worth City Co. vs. Smith Bridge Co., 914 Fort ^\orth Pub. Co., vs. Hitson, 793 Foss vs. Hildreth, 906 Foster vs. Dickerson, 847 Foster vs. Rison, 361, 363 ' Foster vs. Woodfin, 843 Fouch vs. Rome St. R. Co., 714 Fouse vs. Gilfillan, 525, 527 Foushee vs. Owen, 793 Foutty vs. Poar, 343, 452 Fowler vs. Lewis, 209, 226, 227, 365, 560, 568, 579, 818 Fowler vs. Mosher, 13, 14, 890a Fowler vs. Slater, 583 Fox vs. Corby, 401 TABLE OF CASES. 1525 (References are to s;:ctions.) Fox vs. Devery, 906 Fox vs. Foster, 123a Fox; vs. Jones, 496 Fox vs. Manufacturers' Fire In- surance Co., 84a Fox vs. Martin, 847 Fox vs. McKinzie, 787 Fox vs. Montjoy, 703 Frances vs. Frances, 589, 602 Francher vs. Armstrong, 484 Frank vs. Bureh, 579 Frank vs. Brunnemann, 81 Frank vs. Lilienfeld, 532 Franklin vs. Keeler, 111 Franklin vs. Wilkinson, 220 Franklin Ins. Co. vs. Hickson, 29 Franlclin Ins. Co. vs. McCrea, 591 Frayser vs. K. & A. R. Co., 760 Frazier vs. K. & M. R. Co., 15, 29 Freehold M. S. Ass'n vs. Brueu, 409 P'reeland vs. Cocke, 382 French vs. Dear, 107 French vs. French, 549 French vs. Gibbs, 629 French vs. Gifford, 740 French vs. Loyal Co., 11 French vs. Shotwell, 859 French vs. Townes, 646 French vs. Williams, 540 Frendheim vs. Rohr, 740 Fridenwald vs. Asheville Tobacco \\orks & Cigarette Co., 58 Friedlander vs. Pollock, 784 Friedman vs. Fennell, 109 Frink vs. Sehroyer, 350 Fritch vs. Klausing, 817 Fritz vs. Tudor, 119 ITi-ost vs. Beekman, 433 Fry vs. Feamster, 648, 650 Fudge vs. Payne, 299, 322 Fugate vs. Moore, 62, 314 Fuller vs. Cason, 428, 851 Fuller vs. Nelson, 75 Fulton vs. Andrea, 374 Fulton vs. Gracen, 180 Fulton vs. Woodman, 581 Fulton Bank vs. N. York, etc., Ca- nal Co., 860 Fulton Bank vs. Sharon Canal, 15S Fulton County vs. iiiss., etc., K. Co., 347, 408 Fulmore vs. ilcGeorg;', 013 Fultz vs. Brightsvell, 226, 572 Fultz vs. Davis, 671 Funnan vs. Rapeljie, 619 Furman vs. Worth, 345 Furnam vs. North, 323 Frothingham vs. McKusick, 81 G Gaffney vs. Hayden, 906 Gage vs. Bailey, 323, 840 Gage vs. Duprey, 116 Gage vs. Reid, 116 Gage vs. Smith, 264 Gainer vs. Gainer, 183, 184, 190 Galatian vs. Erwin, 384 Gales vs. Miller, 482 Galick vs. Huntly, 612 Gall vs. Gall, 77, 93 Gallaher vs. City of Moundville, 716 Gallagher vs. City of Moundsville, 376 Gallagher vs. Gallagher, 976 Gallatin Land, Coal & Oil Co. vs. Davis, 76, 209, 210, 221, 252, 259, 262, 291 Galloway vs. Jenkins, 67 Galpin vs. Critchlow, 556 Galpin vs. Page, 14o Gapen vs. Gapen, 356, 653 Gardener vs. Stroever, 945a Gardiner vs. Fisher, 199 Gardiner vs. Holt, 864 Orrdner vs. Kelso, 37 Gardner vs. Landcraft, 100. 295, 403, 461, 510, 557, 560, 562 Gardner vs. Ogden, 615 Gardner vs. Stratton, 376, 509 Garland vs. Garland, 43, 896 Garland vs. Loving, 680 1526 TABLE OF CASES. (References are to sections.) Garlock vs. Vandervort, 870 Garner vs. Fisher, 199 Garrett vs. Bradford, 568, 568a Garrett vs. Cox & Sons Co., 442 Garrett vs. Fox, 442 Garrett vs. Ramsay, 358 Garrison, vs. Myers, 189, 462 Gartside vs. Gartside, 79 Gas Co. vs. Wheeling, 421 Gaskell vs. Gaskell, 95 Gaston vs. Plum, 38 Gates vs. Cragg, 671 Gates vs. Tusten, 805 Gavin vs. Curtin, 95 Gay vs. Grant, 14a Gay vs. Loekbridge, 647 Gay vs. Skeen, 297, 311 Gazzam vs. Bebee, 841 Geddes vs, Jones, 856 Gelwicks vs. Todd, 327 Gentry vs. Gentry, 76 George vs. Cooper, 72 George vs. Everhart, 856 George vs. Pilcher, 143 Gerard vs. Bates, 91 Gerders vs. Sears, 791 Germond vs. Gerniflnd, 118, 861 Gernon vs. Boccaline, 388 Getman vs. Beardsley, 862 Gibbs vs. Gibbs, 589 Gibson vs. Beckham, 374, 703 Gibson vs. Beveridge, 607 Gibson vs. Burgess, 579 Gibson vs. Everett, 47 Gibson vs. Green, 216, 353, 376, 435 Gibson vs. Greene, 231 Gibson vs. Green's Admr., 353 Gibson vs. Martin, 740 Gibson vs. McLaughlin, 783 Gibson vs. Reese, 567 Gibson vs. Trowbridge, 638 Gibson's Heirs vs. Jones, 60 Gies vs. Green, 217 Gifford vs. Hulett, 701 Gilbranson vs. Squier, 591 Gilbert vs. Washington, 646 Gilbreth vs. Brown, 857 Gilchrist vs. Shackelford, 818 Giles vs. Hodge, 905 Gilham vs. Allen, 716 Gilkerson \s. Miller, 906 Gill vs. Carmine, 755 Gillespie vs. Allen, 541a Gillespie vs. Bailey, 189, 562, 845, 906 Gillespie vs. Thompson, 703 Gillett vs. The American Stove and Hollow Ware Co., 287, 512, 875 Gillingham vs. Gillingham, 366 Gilman vs. New Orleans, etc., R. Co., 205 Gilmer vs. Baker, 524, 525, 570, 690, 691 Gilmore vs. Butts, 505 Ginter vs. Breeden, 528 Girard vs. Bradley, 76 Givens vs. Manns, 490 Glascock vs. Brandon, 357 Glassell vs. Thomas, 591, 801 Glen vs. Augusta Perpetual B. & L. Co., 592 Glenn vs. Blackford, 172, 598, 667, 690 Glenn vs. Brown, 340 Glenn vs. Brush, 470 Glenn vs. Clarke, 205, 578 Glenn vs. Morgan, 386, 703 Glos vs. Swigart, 580 Gloucher vs. Patterson, 349 Glover vs. Glover, 896 Glover vs. Hembree, 129 Goddin vs. Vaughn. 254. 415, 421, 450, 615, 629, 711 Godding vs. Decker, 85 Godfrey vs. White, 2 Goflf vs. McBee, 628 Goff vs. Price, 105, 198, 423, 424 Goff vs. Price, 105 Gold vs. Johnson, 714 Goldsmith vs. Goldsmith, 343, 495 Goldthwaite vs. Day. 426 Goldtree vs. Thompson, 869 Gomez vs. Johnson, 525 Gondian vs. Rest, 840 Gooehes vs. Green, 961 Goodbe vs. Tootle, 399 TABLE OF CASES. 1527 (References are to sections.) Goodell vs. Gibbons, 371 Goodell vs. Hall, 520 Gooding vs. Riley, 105 Goodman vs. Henry, 765, 766, 767 Goodman vs. Wbiteomb, 732 Goodnow vs. Lumber Co., 906 Goodrich vs. Pendleton, 267, 388, 392 Goodrich vs. Thompson, 216, 218 Goodwin vs. Goodwin, 133e Goodwin vs. Miller, 566 Goolsby vs. St. John, 222 Gordon vs. Hammel, 426 Gordon vs. Holland, 302 Gordon vs. R. F. & P. R. Co., 913 Goree vs. Clements, 115 Gorman vs. Steed, 32 Goshorn vs. Snodgrass, 541a Goss vs. Furnam, 105 Gould vs. Morrison, 671o Gould vs. Stafford, 343 Gouverneur vs. Elmendorf, 120, 200, 206 Grady vs. Wilson, 365 Graeme vs. Cullen, 605 Grafton & G. R. Co. va. Davisson, 611, 656, 657 Graham vs. Birch, 52 Graham vs. Citizens' Nat. Bank, 8, 697, 727, 865 Graham vs. Coope, 268 Graham vs. Graham, 648 Graham vs. Florida Land & Mort- gage Co., 116 Graham vs. Skinner, 343, 347 Grant vs. Reid, 1088 Grant vs. Schoonover, 820 Grant vs. Sutton, 541o Grantham, vs. Lucas, 653, 732, 748, 1235 Grantland vs. Wright, 707 Grattan vs. Wiggins, 354 Gravely vs. Gravely, 69, 564 Graves vs. Graves, 861, 896 Graves vs. Hedrick, 576, 577 Gray vs. Baldwin, 81 Gray vs. Baltimore Bldg. & Loan Ass'n, 952 Gray vs. Berryman, 369 Gray vs. Brignardello, 848 Gray vs. Case, 676 Gray vs. Gray, 118, 897 Gray vs. Ken, 129 Gray vs. Overstreet, 707 Gray vs. Regan, 297, 560o Gray vs. Robinson, 350 Gray vs. Stuart & Palmer, 374 Gray vs. Stewart, 583 Grayson vs. Buchannon, 277 Grayson vs. Buchanan, 387 Great Falls Manf. Co. vs. Henry, 717, 1213, 1219 Greathouse vs. Greathouse, 81 Green vs. Crockett, 933 Green vs. Green, 1145 Green vs. Harris, 459 Green vs. Hart, 439 Green vs. Hicks, 748 Green vs. Massie, 564, 571 Green vs. Railroad Co., 568 Green vs. Welding, 906 Green vs. Whiting, 871 Green Bay & M. R. Co. vs. Union Steamboat Co., 914 Green &, Co., vs. P. W_ & Ky. R. R. Co., 349 Greene vs. Roworth, 905 Greer vs. Greer, 661 Greer vs. Hale, 620 Greer vs. O'Brien, 65 Greenbaum vs. Greenbaum, 818 Greenlaw vs. Greenlaw, 118, 897 Gregg vs. Brower, 340 Gregg vs. Sloan, 425 Gregg vs. Mellett, 487 Gregory vs. Peoples, 541, 687 Greig vs. Russell, 295 Gressinger vs. Welch, 906 Gressinger vs. Lessee of Welch, 906 Grider vs. American Freehold Land & Mortgage Co., 116 Griffin ys. Fries, 125 Griffin vs. Griffin, 205 Griffin vs. Isbell, 490 Griffin vs. Stewart, 299 1528 TABLE OF CASES. (References are to sections.) Griffiths vs. Blaekwater Boom & Lumber Co., 661 Griffiths vs. Ventress, 581 Griggs vs. Clarke, 613 Grigsby vs. Simpson, 528, 529 Grigsby vs. Weaver, 665 Grimball vs. Cruse, 869 Grimes vs. VVilsoii, 85 Grimstone vs. Carter, 718 Grinberg vs. Lingerman, 773 Grinnan vs. Edwards, 17, 572 Grist vs. Forehand, 38 Griswold vs. Simons, 206 Grobe vs. Roup, 198, 423, 424, 428, 429, 604, 707, 708, 850 Groch vs. Stenger, 646, 848 Grogan vs, Egbert, 63, 754 Grossbaeh vs. Brown, 115 Grove vs. Bush, 727 Grove vs. Fresh, 613 Grove vs. Grove, 361 Grove vs. Judy, 38 Grove vs. Todd, 831 Grover vs. Chamberlain, 366 Grover vs. Wakeman, 935 Groves vs. County Court, 516 Grubb vs. Buford, 549 Grubb vs. Lookabill, 70 Grubb vs. Sharkey, 615 Grubb vs. Suit, 358, 359, 360 Grunnan vs. Edwards, 226 Guano Co. vs. Heatherly, 108 Guarantee Co. vs. First Nat. Bank, 13, 277, 278, 283, 775, 776 Guilfoil vs. Arthur, 39 Gundy vs. Louisville, 115 Guinn vs. Bowers, 668 Gunn vs. Brantley, 133f Gunn vs. Gunn, 471 Gunn vs. Railroad Co., 575 Gunn vs. Turner, 349 Gunn vs. Turner's Admr., 1114 Gurnee vs. Bansemer, 866 Guthrie vs. Sorrell, 71 Gwaltney vs. Gwaltney, 81 Habe vs. I'enn, 668 Hacker vs. Hacker, 602 Hackett vs. Green, 1272 Haden vs. Gardner, 64 Hadley vs. Gregory, 538 Haffey vs. Birchetts, 671 Hagan vs. Walker, 69 Hagel vs. Cunie, 853 Haggerty vs. Duane, 852 Haight vs. Bugh, 779 Haines vs. Carpenter, 732 Haldeman vs. U. S., 844 Hale Berry Co. vs. Diamond State Iron Co., 745, 748 Hale vs. Clarkson, 164 Hale vs. Hale, 133 Hale vs. Pack, 218, 363 Hale vs. Peck, 229 Hale vs. Penn's Heirs, 592 Hale vs. WTiite, 117 Hall vs. Bank, 349, 568 Hall vs. Brazelton, 779 Hall vs. Congdon, 329 Hall vs. Fisher, 320 Hall vs. Hall, 358, 771, 777 Hall vs. Lowther, 20. 216. 583 Hall vs. Lyons, 287, 512. 539 Hall vs. Packard, 780, 899 Hall vs. Pierce, 105 Hall vs. Uixey, 528 Hall vs. Taylor, 579 Hall vs. Wood, 404 Halle vs. Nat. Park Bank, 133 Hallett vs. Hallett, 36, 39, 69 Halstead vs, Shepard, 447 Hambly vs, Trott, 358 Hamilton Brown Shoe Co. vs. Saxey, 958 Hamilton vs. Hamilton, 361 Hamilton vs, \Miitridge, 299 Hammond vs. Farmers, 737 Hampton vs. Hampton, 513. 540 Hamsberger vs, Cochran, l38 Hanby vs. Henritze, 171. 324, 326, .S27, 374 TABLE OF CASES. 1529 (References are to sections.) Hancock vs. Hutchesoiij 211 Hancock vs. Hutcherson, 210 Hancock vs. Talley, 133e Hand vs. Weidner, 439 Handlan vs. Handlan, 573 Handley vs. Heffin, 162 Handy vs. Scott, 241, 492, 582, 648, 650 Handy vs. Smith, 361, 365 Hanly vs. Potts, 1117 Hanna vs. Wilson, 76, 362, 363 Hanod vs. Myers, 1033 Hansberger vs. Cochran, 437 Hansbraugh vs. Neal, 371 Hansford vs. Coal Co., 191, 193, 578 Hansford vs. Elliott, 69, 361, 365 Hansucher vs. Walker, 646, 686 Harden vs. Wagner, 541a, 708, 734 Hardie vs. Bulger, 329 Hardin vs. Bend, 329 Harding vs. Alden, 11 Harding vs. Downs, 857 Harding vs. Handy, 905 Harding vs. Harding, 408, 896 Harding vs. Hawkins, 430 Harding vs. Merrick, 486 Harding vs. Wheaton, 905 Hardeman vs. Sims, 88 Hardy vs. Heard, 510 Hardy vs. McClellan, 731 Hardy vs. Reeves, 81 Hardwick vs. Bassett, 514 Hargraves vs. Seevis, 216 Harkness vs. Hyde, 11 Harland vs. Person, 327 Harman vs. Bryam, 46 Harman et al vs. McMullin, 732, 760 Harman vs. 'Wagner, 738 Harman vs. Howe, 701, 702, 704 Harmison vs. Gibson, 364 Harmison vs. Loneberger, 859 Harmon vs. Bryan, 11 Harmon vs. Howe, 465 Harmon vs. Jacobs, 345 Harnsberger vs. Cochran, 512, 629 Harper vs. Campbell, 308 Harper vs. Crawford, 133f Harper vs. McVeigh, 528 Harr vs. Shaffer, 116 Harrell vs. Davis, 89 Harrigan vs. Turner, 471 Harrington vs. Birdsall, 933 Harrington vs. Rutlierford, 115 Harriman vs. Brown, 497 Harris vs. Cannon, 906 Harris vs. Fly, 433 Harris vs. Harris, 602 Harris vs. Hines, 205 Harris vs. Knickerbacker, 329 Harris vs. Thomas, 294, 299 Harris vs. U. S. Sav., F. & Ins. Co., 742 Harris vs. Wallon, 68 Harris vs. Watson, 77 Harrison vs. Brewster, 407, 424 Harrison vs. Gibson, 364 Harrison vs. Johnson, 447 Harrison vs. Loneberger, 557 Harrison vs. Morton, 93, 709 Harrison vs. Xixon, 878 Harrison vs. Robinson, 116 Harrison vs. Shaffer, 793 Harrison vs. State, 475 Harrison vs. Turnbull, 123 Harrison vs. Warner, 862 Harrison vs. Walton, 95. 123, 302, 318, 376, 603 Harrison vs. Yerby, 331 Harrison & Bird vs. Wisler, 10 Harshberger vs. Alger, 358 Harshberger's Admr. vs. Alger, 358 Hart vs. B. & 0. R. Co., 58 Hart vs. Birch, 61 Hart vs. Hart, 401, 598, 599 Hart vs. Kennedy, 113 Hart vs. McKeen, 109 Hart vs. Ten Eyck, 439, 516 Hartford F. Ins. Co. vs. Banner Mercantile Co., 45 Hartford F. Ins. Co. vs. Bonner Mercantile Co., 113 Hartley vs. Roffe, 646, 678, 680, 681, 682, 1118, 1195 Hartley vs. Rolfe, 349 Hartman vs. Evans, 158, 415, 419, 648. 951 1530 TABLE OF CASES. (References are to sections.) Hartman vs. Strickler, 664, 734 Hai-twell vs. Townsend, 222 Harvell va. Potts, 731 Harvey vs. Branson, 568a Harvey va. Bronson, 230 Ha,rvey vs. Kelly, 138 Harvey vs. Skipvi'ith, 33 Harvey vs'. Parkersburg Ins. Co., 3, 6, 9, 12, 339 Haseltine & Walton vs. Brickley, 142 Haskin Wood- Vulcanizing Co. vs. Cleveland Shipbuilding Co., 136 Hastings vs. Dollarhide, 906 Hatch vs. Calvert, 36, 70, 237, 572 Hatch va. Dana, 58 Hatch va. Spofford, 289 Hatcher vs. Crew, 479 Hatcher vs. Crewa, 440, 495, 507 Hatcher va. Hall, 363 Hatcher vs. Hatcher, 212, 214, 218 Hatfield va. McWhorter, 140 Hathaway va. Scott, 227 Hauck vs. Dunham, 365 Haudd vs. Meyers, 906 Havemeyer va. Superior Court, 748 Hawker va. Moore, 57. 593 Hawkinberry va. Snodgraaa, 717 Hawkins vs. Ga. & A. E. Co., 299 Hawkins va. Pearson, 329 Hawley vs. Bennett, 1272 Hawley va. James, 4 Hawthorn va. Beckwith, 376 Haxton va. McClaren, 133 Hay vs. Peterson, 539 Hayden vs. Thrasher, 428 Haydon va. Good, 308 Hayes vs. Reese, 613 Hayea va. Mut. Pro. Asa'n, 532 Hayes vs. Northwestern Bank, 519 Haymond vs. Camden, 17, 241, 571,- 572, 648, 651, 678, 686 Haymond va. Haymond, 118 Hays va. Heatherly, 314, 316, 322 Hay'a Ex'r vs. Hays, 69 Hayzlett vs. McMillan, 35, 254, 421, 706, 711 Hazelbrigg va. Donaldson, 787 Hazelhurst vs. Sea Isle City Hotel Co., 439 Hazelvvood vs. Forrer, 683 Hazlett vs. McMillan, 429 Heartt vs. Corning, 388 Heathman vs. jNIillions, 791 Heaverin vs. Robinson, 793 Heavener vs. Morgan, 41, 70, 76, 358 Hebb vs. County Court, 834 Hechmer vs. Gilligan, 142. 143 Hedrick vs. Hopkins, 63 Heermaua vs. Montague, 214, 216, 217, 229, 231 Heffelbower vs. Detriek, 367, 526, 527 Hegenwisch vs. Silver, 751 Heffron vs. Rice, 756 Hegenwiach va. Silver, 751 Hegewiach vs. Silver, 874 Heggie vs. B. & L. Ass'n, 374 Hei vs. Heller, 862 Heigel vs. Laitenberger, 198 Heima Brewing Co. vs. Flannery,. 914 Heisen vs. Heisen, 695 Heiskell vs. Powell, 362 Hemphill vs. Holford, 905 Hemphill va. Miller, 414 Henderaon va. Alderaon, 628, 632 Henderaon vs. Harness, 327 Heninger vs. Heninger. 602 Henly vs. Menefee, 350 Hennings vs. Connor, 343 Henricks va. Compton. 706 Henrie vs. Johnson, 668 Henriques vs. Dutch West India Co., 875 Henry vs. Brown, 329, 331 Henry vs. Buddecks, 538 Henry vs. Davis, 208, 211, 666, 859 Henry vs. Fine, 815, 906 Henry vs. Gregory, 408 Henry vs. Henry, 110 Henry vs. Ohio River Railroad Co., 3,iS, 361 Henry vs. Watson, 851, 947 Herrington vs, Hubbard, 324 TABLE OF CASES. 1531 (References' are to sections.) Herring vs. Wickham, 541 Hersey vs. Veazie, 58 Hershey vs. Hershey, 579 Hervey vs. Smith, 945a Herzog vs. Weiler, 64, 65 Heseman vs. Vogt, 546 Hess vs. Gale, 831, 1099 Hess vs. Eader, 670, 679 Heyer vs. Bromberg, 109 Heyer vs. Deaves, 672 Hiekling vs. Wilson, 85 Hickman vs. Larkey, 26, 29 Hickman vs. Painter, 439, 452, 552, 575, 1088 Hickman vs. Stout, 353 Hickman vs. Trout, 541o, 542 Hicks vs. Hicks, 732 Hickson vs. Eucker, 680, 687 Hiett vs. Shull, 536, 1183 High vs. Board, 361 Highstone vs. Franks, 388 Higgins vs. Curtiss, 514 Hightower vs. Thornton, 92 Higginbotham vs. Burnett, 297 Higginbotham vs. Haselden. 17, 35, 421 Hildreth vs. Turner, 676, 679, 680 Hileary vs. Johnson, 682 Hileary vs. Thompson, 681, 682 Hilton Bridge Const. Co. vs. N. Y. Cent. & H. R. R. Co., 748 Hilton vs. Guyott, 389 Hilton vs. Ross, 783 Hill vs. Adams, 273 Hill vs. Arnold, 732 Hill vs. Bo\vyer, 97, 214. 634, 892 Hill vs. Cawthorn, 157 Hill vs. Harding, 787 Hill vs. Hill, 136, 327, 835 Hill vs. Hilliard, 354 Hill vs. Kerr, 133 Hill vs. Maury, 36, 221, 228, 229 Hill vs. Nelms, 906 Hill vs. Pcstley, 500, 528, 554 Hill vs. Proctor, 36, 76, 91, 299, 492, 497 Hill vs. Putman, 83 Hilleary vs. Thompson, 492, 576 Hiller vs. Cotton, 322 Hill's Admr. vs. Hill, 136 Hills vs. Als, 566, 568 Hitchcock vs. Hitchcock, 48 Hitchcock vs. Galveston, 914 Hiteheo.x vs. Morrison, 376 Hitchcock vs. U. S. Bank, 933 Hillyer vs. Bennett, 906 Himan vs. Thorn, 357 Hinchman vs. Ballard, 314, 811 Hinds vs. Hinds, 43 Hinton vs. Ballard, 270 Hinton vs. Bland, 62, 63, 91, 399 Hinton vs. Ellis, 600, 859 Hintranger vs. Traut, 361 Hobbs vs. Godlove, 482 H-obbs vs. Interchange, 776 Hobbs vs. Shumates, 490 Hobbs vs. Shumate, 490 Hoback vs. Miller, 816, 831 Hoboken Savings Bank vs. Beck- man, 430 Hobson vs. Buchanan, 868 Hobson vs. Cummins, 12 Hobson vs. Yancey, 378 Hobson vs. Yancy, 572 Hoekman vs. Stout, 435 Hoddy vs. Hoard. 125 Hodge vs. Gray, 65 Hodges vs. Davis, 226 Hoff vs. Burd, 514 Hoffman vs. Beecher. 278, 607 Hoffman vs. Ryan, 20."). 578 Hoffman vs. Shields, 60, 886 Hogan vs. Duke, 60, 429, 671, 672, 706 Hoge vs. Junkin, 596 Hogp, vs. Vintroux, 361 Hogg vs. Dower, 66« Hoke vs. Davis, 299, 310 Holinberg vs. Johnson, 81 Holland vs. White, 779 Holland vs. Sleaver. 835 Holland vs. Trotter, 331, 340 Holland et itx vs. Trotter, 320 Holland vs. Trottner, 323 Hollenbeck vs. Cook, 546, 547 Holliday vs. Meyers, 703 1532 TABLE OF CASES. (References are to sections.) HoUinger vs. Reeme, 123 HoUinsworth vs. Sherman, 358 HoUister vs. Barkely, 515 Hollister vs. Vaudeilin, 673 Holloway vs. Moore, 447 llolmaii vs. Bachus, 480 Jlolmes vs. Blogg, 906 Holmes vs. Oilman, 133 Holsberry vs. Poling, 57, 121 Holt vs. Holt, 640, 648, 653 Holt vs. Taylor, 637, 648, 650, 653 Home Bldg., etc., Co. vs. Loudon, 568a Home Ins. Co. vs. Myer, 513« Homes vs. Smock, 447 Hood vs. Inman, 109, 110, 138 Hood vs. Morgan, 108, 593, 911 Hooe vs. Harrison, 1088 Hook vs. Dorman, 108a, 298 Hook vs. Nanny, 471 Hook vs. Richeson, 77, 323 Hook vs. Ross, 723 Holly vs. Glover, 74 Hooper vs. Central Trust Co., 193 Hoopes vs. Devaughan, 1093 Hooper vs. Devaugn, 482, 496 Hooper vs. Hooper, 374, 431, 525, 589, 654 Hooper vs. Royster, 69 Hoover vs. Mitchell, 844 Hope vs. Smith, 373 Hope vs. The Valley City Salt Co., 936 Hopkins vs. Brown, 871 Hopkins vs. Burr, 133(7 Hopkins vs. Prichard, 568a Hopson vs. Harrell, 42a, 302 Hord vs. Colbert, 500, 658, 687 Hord vs. Dishman, 296 Herd's Admr. vs. Calvert rt al., 660 Horn vs. Clements, 323, 859 Horn vs. Detroit Dry Dock Co., 395 Horn vs. Perry. 711 Home Bldg., etc., Co. vs. Loudon, 568 Hornor vs. Hanks, 193 Horton vs. Bond, 79, 596, 597, 614 Horton vs. Towns, 277, 278 Horwood vs. Sclunedes, 1263 Hosaek vs. Rogers, 852 Hoskinson vs. Pusey, I33f Hough vs. Barton, CIO Hough vs. Shreeves, 697 Hough vs. Shreave, 713 Houghton vs. Graybill, 541 House vs. Beak, 539 House vs. Elliott, 490 Houser vs. Ruffner, 374 Houston vs. McCluney, 317, 575, 590 Hovey vs. Hobson, 906 Howard vs. Fay, 133e Howard vs. Huron, 376 Howard vs. Smith, 870 Howard vs. Stephenson, 596 Howe vs. Howe, 545 Howe vs. Harve}', 874 Howe vs. Kreling, 133e Howe vs. Ould, 809 Howe vs. ^^'illard, 720 Howell vs. Ashmore, 157 Howell vs. Foster. 68, 84 Howell vs. Thomason, 58^ Rowland vs. Green, 862 Howth vs. Owens, 843 Hoy vs. McMtirry. 75 Hoyle vs. Moore, 46 Hubbard vs. Goodwin, 205 Hubbard vs. State, 460 Hubbell vs. Cramp. 427 Hubbell vs. Skiles. 875 Hubble vs. Poff, 306, 353 Huberman vs. Evans, 818 Hubler vs. Pullen, 475 Hudgin vs. Hudgin, 686 Hudgins vs. Lanier, 117 Hudgins vs. Lanier, Bro. & Co., 60 Hudgins vs. ^lerchant. 6Sn Hudkins vs. Haskins, 764. 765 Hudson vs. Barrett, 895 Hudson vs. Hudson, 193, 10.-, 361, 365, 453 Hudson vs. Johnson, 607 Hudson vs. Kline, 301, 302, 564, 706, 710 TABLE OF CASES. 1533 (References are to sections.) Hudson vs. Max Meadows Land & Improvement Co., 76 Hudson vs. Plets, 721 Hudson vs. Trenton Locomotive Mach. Mfg. Co., 632 Hudson vs. Yost, 376 Huff vs. Thrash, 62 Huffman vs. Hummer, 334, 343, 346, 347 Huffmans vs. Walker, 528 Hughes vs. Blake, 392, 394, 459 Hughes vs. Bloomer, 515 Hughes vs. Hamilton, 680, 682 Hughes vs. Harvey, 560 Hughes vs. Hughes, 431 Hughes vs. Kelly, 541, 84r Hughes vs. Tinsley, 429, 706 Hughes vs. Washington, 848 Hughes & Co. vs. Hamilton & Co., 678 Hukill vs. Guffey, 374 Hull vs. Fields, 4, 10, 12 Hull vs. Hamilton's Heirs, 62 Hull vs. Harris, 1272 Hull vs. Hull, 90, 410, 596, 598, 603, 685, 686, 820 Hull vs. Hull's Heirs, 53, 603 Hull vs. Thomas, 722 Hull vs. Watts, 660, 663 Hum vs. Keller, 226 Humbert vs. Trinity, 304 Humbert vs. Trinity Church, 353. Humphrey vs. Spencer, 353 Humphreys vs. Harrison, 81 Humphreys vs. Humphreys, 92 Humphreys vs. Newport News M. V. Ry. Co., 5 Humphreys vs. West, 583 Humphries vs. Dawson, 289 Hungerford vs. Gushing, 742 Hunt vs. Gookin, 415 Hunt vs. Field, 791 Hunt vs. Hanover, 871 Hunt vs. Holland, 331 Hunt vs. Martin, 189 Hunt vs. State, 469 Hunt vs. West Jersey Traction Co., 394, 395 Hunt vs. Wilkinson, 287 Hunter vs. Fulcher, 480, 482 Hunter vs. Hunter, 357, 430, 573 Hunter vs. Kennedy, 104, 229, 580 Hunter vs. Phillips, 1272 Hunter vs. Robinson, 490, 962 Hunter's Ex'rs vs. Stewart, 33 Huntington & K. Land Dev. Co. vs. Thornburg, 526 Huntington vs. Sanders, 560 Hurd vs. Case, 198 Hurd vs. Corn, 406 Hurd vs. Everett, 170 Hurley vs. Oakley Land & Improve- ment Co., 061 Hum vs. Keller, 913 Hurst vs. Addington, 875 Hurst vs. Coe, 58, 489, 594 Hurst vs. Dulany, 370 Hurst vs. Hite, 365, 368 Hurst vs. Morgan, 358 Hurt vs. Addington, 874 Hurt vs. Everett, 337 Hurt vs. Jones, 171, 323, 327, 677 Hurt yfe. Miller, 46 Hurxthal vs. Ilurxthal, 672 Hutcheraft vs. Shunt, 66 Hutchcraft vs. Shrout, 85 Hutcheson vs. Grubbs, 358 Hutchins vs. King, 81 Hutchinson vs. Ainsworth, 591 Hutchinson vs. Boltz, 357, 541a Hutchinson vs. Greenwood, 856 Hutchinson vs. Landcraft, 702, 704 Hutchinson vs. Maxwell. 117, 136a Hutchin.son vs. Reed, 26!) Hutchison vs. Smith, 441 Hutson vs. liutson, 490 Hutson vs. Sadler, 686, 671a Hutson vs. Sawyer, 621 Hutsonpiller vs. Stover, 363 Hutton vs. Lockridge, 596, 598, 733, 740, 741, 744 Hutton vs. Williams, 88 Hyatt vs. Challis, 376 Hyatt vs. Ingalls, 289 Hyde vs. Cole, 858 Hyland vs. Hyland, 115 1534 TABLE OF CASES. (References are to sections.) Hyman vs. Smith, 209, 225, 230, Isham vs. Miller, 269, 275 568a, 677, 678, 682, 1209 Ives vs. Ashelby, 842 Hyman, Moses & Co. vs. Smith, 178, Izard vs. Bodine, 650 202, 214 Hyre vs. Lambert, 100, 108, 613, 650, 653 J. laege vs. Bosseiux, 596 Ikerd vs. Beavers, 905 lies vs. Martin, 133 Ilett vs. Collins, 304 Illinois, etc., Co. vs. Bonner, 906 India Rubber Comb Co. vs. Phelps, 343 Indian River Steamboat Co. vs. East Coast Transp. Co., 428, 706, 851 Indiana I. & I. R. Co. vs. Swannell, 79 Ingle vs. Coolidge, 871 Ingles vs. Straus, 339, 429, 706, 707 IngerscU vs. Ingersoll, 581 IngersoU vs. Stiger, 439 Ingraham vs. Ingraham, 870 Inman vs. Stratton, 787 Insurance Co. vs. Armstrong, 541 Insurance Co. vs. Devore, 108 Insurance Co. vs. Stebbins, 739 In re Carman's Will, 870 In re Carpenter, 616 In re Dornell's Will, 547 In re Hoghton, 603 In re Holden, 869 In re Keefer's Will, 547 In re Lasok's Will, 621 In re Potter's Will, 546, 547 In re Smith's Will, 870 Iowa County vs. Min. R. R. Co., 109 Ireland vs. Nichols, 761 Irvine vs. Irvine, 906 Irving vs. DeKay, 200 Irwin vs. Irwin, 118, 589 Isaac vs. Humpage, 851 Jacks vs. Adamson, 848 Jackson vs. Arnold, 715 Jackson vs. Ashton, 874 Jackson vs. Brownson, 81 Jackson vs. Cutright, 344, 856 Jackson vs. Hart, 439 .lackson vs. Hough, 359 Jackson vs. Hull, 226, 227, 304, 353, .365, 1117 Jackson vs. Kent, 480 Jackson vs. King, 906 Jackson vs. Kittle, 592 Jackson vs. Pleascnton, ff61 Jackson vs. Relf, 202 Jackson vs. Roan, 840 Jackson vs. Roane, 205 Jackson vs. Rowell, lOP Jacobs vs. Sale, 470 Jacobson vs. Allen, 749 Jacques vs. JNlethodist Episcopal Church, 567 •lames vs. Bird, 105 James vs. Burbridge, 70 James vs. James, 581, 80S .Tames vs. Life, 363 James vs. McKernon, 120, 45i James vs. Shufflin, 107 James vs. Wliitbread. 935 James River & Kanawha Cc vs. Littlejohn, 46, 226. 439, 513. ^36, 547 Jameson vs. Jameson, 230. .iS8, 568a Jameson vs. Deshields, 92, 323, J24, 801 Jameson vs. Re.xey, 362 Jameson vs. Shields, 317 Jamison vs. Smith, 906 Jarbee vs. Smith, 844 Jarrett vs. .Tnrrett. 443, 445, 659, 660, 661, 005 TABLE OF CASES. 1535 (References are to sections.) Jarvis vs. Martin, 123a, 306, 311, 363, 364 Jarvis vs. Palmer, 387 Jarvis vs. Town of Grafton, 358 Jaynes vs. Brock, 696 Jetreries vs. Biggs, 852 Jefferson vs. Coleman, 933 Jefferson vs. Kennard, 329 Jelineau vs. Jelineau, 896 Jenkins & Cutchin vs. Waller and Jordan, 339 Jenkins vs. Freyer, 69 Jenkins vs. International Bank, 329 Jenkins vs. Long, 350 Jenkins vs. Waller, 706, 707, 708 Jenks vs. Hathaway, 116 Jennings vs. Montague, 598 Jennings vs. Patterson, 69 Jennings vs. Springs, Bailey, Esq., 859 Jennings vs. Spring, 322 Jeter vs. Langhorne, 728 Jeters vs. Taliaferro, 485 Jewell vs. West Orange, 75 Jewett vs. Sweet, 397 John vs. Barnes, 74 Jolin Slack a-s. Jacob et al., 07 Johns vs. Fritehey, 54 Johnson vs. Anderson, 138, 209, 567, 568 Johnson vs. Bower, 289 Johnson vs. Brown, 110, 111 Johnson vs. Durner, 329 Johnson vs. Fry, 528 Johnson vs. Gibson, 4 Johnson vs. Greeri, 841 Johnson vs. Helmstaeder, 108 Johnson vs. Ruling, 116 Johnson vs. Johnson, 105, 121, 323, 387 Johnson vs. Kelly, 580 Johnson vs: Longmire, 581 Johnson vs. Pinney, 834 Johnson vs. Riley, 601, 939 Johnson vs. Rogers, 115 Johnson, vs. Sanger. 136, 306 Johnson vs. Shepard, 94 Johnson vs. Stancliff, 423 Joliiisun vs. State, 476 Johnson vs. Stockham, 783 Johnson vs. Taylor, 116 Johnson vs. Tucker, 111 Johnson vs. Vaile, 337 Johnson vs. VVadsworth, 4 ' Johnson vs. White, 648 Johnson vs. Wilson, 415 Johnson vs. Young, 570 Johnston vs. Gill. 368 Johnston vs. Manns, 855 Joliett vs. Shiflett. 522 Joliffe vs. East, 870 Jolly vs. Carter, 110, 323 Jones vs. Abraham, 404, 438, 441 Jones vs. Anderson, 764, 774, 786 Jones vs. Blanton, 57 Jones vs. Bradford, 593 Jones vs. Bradshaw, 300, 301 Jones vs. Brittan, 560 Jones vs. Byrnes, 0.33 Jones vs. Christian, 444, 661 Jones vs. Clark, 296, 401a Jones vs. Clarke, 313 Jones vs. Cunningham, 167, 349, 439, 440, 508 Jones vs. Cutwater, 302 Jones vs. Dils, 110 Jones vs. Degge, 450, 528, 532, 614 Jones vs. Fox, 196 Jones vs. I-lurlburt, 722 Jones vs. Jones, 92, 187, 362, 431, 1071 Jones vs. Kennicott, 334 Jones vs. Legueira, 458 Jones vs. Lemon, 356, 358, 361 Jones vs. Mason, 856 Jones vs. McGruder, 54, 541, 904, 1200 Jones vs. Patton, 98 , Jones vs. Phelps, 866 Jones vs. Pilcher. 220 Jones vs. Reid, 63, 130, 136a, 183, 583 Jones vs. Roberts, 308, 832, 870 Jones vs. Robinson, 205 Jones vs. Rountree. 592 Jones vs. Smith, 129. 136n, 198 1536 TABLE OF CASES. (References are to sections.) Jones vs. Stockett, 869 Jones vs. Thorn, 732 Jones vs. Turner, 209, 568, 568a, 845 Jones vs. Wooastack Iron Co., 848 Jones' Ex'r vs. Clark, 136a Jordan vs. Dennis, 871 Jordan vs. Dewey, 783 Jordan vs. Liggan, 136, 136a Jordan vs. Miller, 361, 732 Jordan vs. Williams, 68 Jordon vs. Jordon, 743 Joseph vs. Pyle, 807, 810 Joslin vs. State Bank, 797 Jourolmon vs. Messengill, 379, 388 Joy vs. Adams, 363 Judd vs. Seaves, 447 Judson vs. Blanehar 1, 875 Judson vs. Stephens, 218 Julier vs. Julier, 589 Jungerman vs. Bovee, 81 Justis vs. English, 368 K. Kaaker vs. Shields, 660 Kable vs. Mitchell, 576, 677, 678, 679, 681 Kadish vs. Garden City Equitable Loan and Building Association, 914 Kaenders vs. Montague, 546, 547 Kahn vs. Kerngood, 707 Kanawha Coal Co. vs. Ballard & Welch Coal Co., 410, 732, 734, 738 Kanawha & O. Ey. Co. vs. Ryan, 583, 713 Kanawha Lodge vs. Swan, 198, 558, 566 Kanawha Val. Bank vs. Wilson, 108 Kane vs. Bloodgood, 353, 356 K:ine vs. Schuylkill Fire Ins. Co., 442 Kane vs. Vanderburg, 81 Kane County vs. Herrington, 268 Kankakee & S. R. Co. vs. Horan, 295 Karn vs. Rorer Iron Co., 374, 680 Katzer vs. Milwaukee 133e Keagy vs. Trout, 661 Kean vs. Colt, 747 Kean vs. Lathrop, 205 Kearfoot vs. Dandridge, 568a Keck vs. AUender, 365, 562, 647, 648 Kee vs. Kee, 654 Keel vs. Ogden, 801 Keeley vs. Perkins, 162 Keen vs. Jordan, 106 Kehm vs. Mott. 743 Keiffer vs. Barrett, 581 Keigler vs. Savage Mfg. Co., 510 Keil vs. Healey, 906 Keister vs. Myers, 46 Kellam vs. Sayre, 38 Kelley vs. Boetteher, 49 Kelly vs. Baltimore, 558 Kelly vs. Board of Public Works, 530 Kelly vs. McQuinn, 364 Kelly vs. Hamblen, 374 Kelly vs. High, 349 Kelly vs. Israel, 673 Kelly vs. Jones, 308 Kelly vs. Lewis, 388 Kelly vs. Paul, 437 Kelly vs. Riley, 41, 893 Kelsey vs. Berry, 468 Kellura vs. Smith, 482 Kempton vs. Burgess, 843 Kendall vs. Limberg, 490 Kendrick vs. Wheatley. i. 4 Kendrick vs. Whitney, 208, 229, 453, 892 • Keneflck vs. Caulfield, 774 Keneweg vs. Schilansky, 566, 573 Kennedy vs. Brent, 775, 801 Kennedy vs. Creswell, 395 Kennedy vs. Davidson, 374 Kennedy vs. Indianapolis, 749, 750 Kennedy vs. Kennedy, 198 Kenner vs. Hord, 715 Kennewig vs. Moore, 578 Kent vs. Chapman, 578 Kent vs. Church of St. ilichael, 95 Kent vs. Cloyd, 311, 655, 866 Kent vs. Dickinson 210 TABLE OF CASES. 15.37 (References are to sections.) Kent vs. Kent, 376, 605 Kenworthy vs. Peppiat, 798 Keran vs. Trice, 120, 123, 528 Kerr vs. Hill, 732, 737, 742, 850 Kern vs. Wyatt, 212, 214, 215, 450, 780, 1155 Kerlin vs. Kerlin, 368 Kerr vs. Kerr, 308 Kerr vs. Hill, GO, 951 Kerr vs. Love, 514 Kerr vs. Lunsford, 546 Kersey vs. Rash, 851 Kessel vs. Kessel, 591 Kesler vs. Lapham, 764, 765, 768, 771, 786 Kesler vs. Penniger, 821 Kester vs. Alexander, 706, 707, 712 Kester vs. Hill, 828, 647 Kester vs. Lyon, 138, 575, 644, 645, 646 ■< Ketterman vs. Diy Fork R. Co., 26, 27, 369 Key vs. Harmer, 183 Key vs. Hord, 92, 260 Keyser vs. Renner, 171, 299, 304, 324, 337 Keyser vs. Guggenheimer, 764, 786 Keystone Bridge Co. vs. Summers, 67 Keyton vs. Brawford, 41 Kilbreth vs. Roots, 62, 192, 599 Kilgore vs. Hanley, 533 Killinger vs. Hartman, 323 Kimble vs. Wotring, 420 Kimmel vs. Shroyer, 533 Kimports vs. Rawson, 570 Kincheloe vs. Kincheloe, 82, 482 King vs. Avery, 337 King vs. Burdett, 310, 376, 653 King vs. Clark, 860, 875 King vs. Donnelly, 133 King vs. King, 133<7 King vs. Malone, 511 King vs. Pardridge, 122 King vs. Sullivan, 58 Kingsbury vs. Buckner, 603 Kingsbury vs. Smith, 482 Kinney vs. Harvey, 399 Kimports vs. Rawson, 374, 376 Kirby vs. Kirby, 664,, 734 Kirkham vs. Justice, 108 Kirkley vs. Burton, 107 Kiser vs. Lovett, 722 Kisler vs. Sanilers, 366 Kitty vs. Fitzhugh, 374 Knapp vs. Snyder, 123 Knarr vs. Conaway, 81 Knick vs. Kniek, 528, 549 Knickerbocker vs. Harris, 441, 445 Knilong vs. Henrieks, 707 Knight vs. Nichols, 490 Knop vs. Bigelow, 862 Knopf vs. Chicago Real Estate Board, 36 Knott vs. Seanionds, 717 Knovi'lton vs. Campbell, 548 Knowlton vs. Knowlton, 17 Knox Co. vs. Harshman, 725 Klein vs. Bebee, 906 Klaus vs. State, 864 Klapnech vs. Keltz, 679, 680 Koen vs. Kerns, 544, 548 Koger vs. Kane, 41 Koiner vs. Rankin, 358 Koppe vs. Dyer, 71 Korne vs. Korne, 136 Kosteleck vs. Scherhart, 546 Kraker vs. Shields, 629, 630 Krause vs. Krause, 861 Krohn vs. Weinberger, 742, 1236 Kronski vs. Missouri Pac. R. Co., 29 Krubb vs. Di.KOn, 120 Kuger vs. Sipe, 597 Kuhn vs. Board of Education, 78 Kuhn vs. BrowTifield, 360 Kunn vs. Mack, 557, 560, 562, 713 Kupferman vs. McGehee, 133 Kurner vs. O'Neil, 601 Kusch vs. Kusch, 18 Kuttner vs. Haynes, 218, 221 Kuyfers vs. Reformed Dutch Church, 299 Kyle vs. Bostick, 502 Kyle vs. Connelly, 1090 Kyle vs. Kyle, 425, 525 1538 TABLE OF CASES. (References are to sections.) Kyles vs. Ford, 13, 798 Kyles vs. Tait, 671 L. Lackland vs. Davenport, 133 Lacy vs. Pixler, 906 Lacy vs. Wilson, 384 Ladd vs. Anderson, 862 Ladd vs. Chaires, 591 Lafever vs. Billmyer, 112 Lafferty vs. Lafferty, 216, 221, 420, 603 Laidley vs. Bright, 26, 27, 29, 31 Laidley vs. Jasper, 1118 Laidley vs. Kline, 117, 216, 218, 230, 358. 510, 568, 599, 644, 655, 913 Laidley vs. Kline Adm'r, 365 Laildey vs. Laidley, 576 Laidley vs. Menfield, 171, 208, 210, 224, 226 Laight vs. Morgan, 107a Lallance vs. Fisher, 60 Lamar vs. Hale, 583 Lamb vs. Cunningham, 96 Lamb vs. Cecil, 171, 322, 327, 337 Lambert vs. Cooper, 663, 664, 666 Lambert vs. Ensign Mfg Co., 11, 13 Lambert vs. Lambert, 196 Lambeth vs. Sentill, 520 Lamon vs. McKee, 343 Lampson ■vs. Payne, 69 Lancaster vs. Barton, 628, 643, 686, 818, 1121 Lancaster vs. Lancaster, 568, 568a Lancy vs. Randlett, 125 Land Co. vs. Sanford, 906 Landis vs. Saxton, 361 Lane vs. Ellzey, 394 Lane vs. Newdigate, 945a Lane vs. Stebbins, 156 Lang vs. Brown, 641 Lang vs. Jones, 557 Lang vs. Smith, 573 Langdon vs. Paul, 81 Langlors vs. Matthiessen, 840 Laugyher vs. Patterson, 680, 688 Lanning vs. Heath, 331 Lansing vs. Barr, 158 Lansing vs. Easton, 721, 722 Lansing vs. Goelet, 609 Lansing vs. Starr, 353 Lant vs. Manley, 327 Larmon vs. Jordon, 903 Latham vs. Latham, 329, 431, 481 513, 540, 602 Latimer vs. Latimer, 549 Latimer vs. Barmore, 1272 Lattier vs. Lattier, 118, 897 Lattomus vs. Garman, 447 Law vs. Rich, 742 Law vs. Southerland, 205. 578 Lawrence vs. Bolton, 338 Lawrence vs. Dubois, 2, 4, 1228 Lawrence vs. Lawrence, 447 Lawrence vs. Rokes, 304 Lawrence vs. Trainer, 295 Lawrence vs. Winifrede Coal Co., 11, 365, 369 Lawrentz vs. Lawrentz, 372 Lawson vs. Conway, 374 Lawson vs. Lawson, 62 Lawson vs. Moorman, 572, 574, 680 Lawson vs. Zinn, 496 Lawton vs. Kiel, 767 Lawyer vs. Barker, 939 Lea vs. Feamster, 373 Leach vs. Buckner. 132, 1140 Leaehman vs. Adamson, 438 Leaehman vs. Adams. 438 Leake vs. Leake, 69, 362, 593 Leake vs. Watson, 79 Leas vs. Edison, 439 Ledbetter vs. Ledbetter, 397 Le Due vs. Brandt, 65 Lee vs. Braxton, 214, 219, 581 Lee \'s. Feenister. 354 Lee vs. Miller, 570 Lee vs. Patton. 105, 526 Lee vs. Percival, 7."i5 Lee vs. Feamster, 373, 436 Lee vs. Willis, 570 Leech vs. Leech, 869 Leeds vs. Marine Insurance Co., 447 Lefew vs. Hooper, 229 TABLE OF CASES. 1539 (References are to sections.) Legrand vs. Francisco, 214 Legg vs. Legg, 538 Lehman vs. Hinton, 376, 568a Leith vs. Carter, 353 Lemon vs. Hansbarger, 53, 66 Lent vs. Clarke, 475 Lentilhon vs. MoflFatt, 85 Leonard vs. Putman, 246 Leonard vs. Smith, 497, 502, 561 LeRoy vs. Servis, 165 LeRoy vs. Veeder, 165 Lestrade vs. Barth, 591 Livesay vs. Feamster, 634 Livert vs. Redwood, 628 Lewis vs. Bacon, 453 Lewis vs. Botkin, 14, 890a. Lewis vs. Bragg, 765, 769 Lewis vs. Elrod, 2 Lewis vs. James, 105 Lewis vs. Jones, 81 Lewis vs. Laidley, 840 Lewis vs. Leak, 856 Lewis vs. Lewis, 115 Lewis vs. Lyman, 81 Lewis vs. Mason, 439 , Lewis vs. Rosier, 948 Lewis vs. Spencer, 78 Lewis vs. Splane, 610 Lewis vs. Yale, 447 Litchfield Bank vs. Peek, 749 Liggon vs. Smith, 343, 344, 346 Llghtfoot vs. Green, 363 Ligon vs. Rogers, 405 Lill vs. Stookey, 349 Lincoln vs. Buckmaster, 815, 906 Lincoln vs. Claflin, 541 Lindley vs. Cregelo, 2 Lindsay vs. McCormick, 532 Linn vs. Carson, 133f Linn vs. McClelland, 593 Linn vs. Patton, 82, 323, 562 L. Ins. Co. vs. Maury, 205 Linsay vs. Ethridge, 707 Linsey vs. McGannon, 575, 600, 840 Linton vs. Shaw, 133, 133c? Lippincott vs. Ridgway, 513a Lipscomb vs. Rogers, '596 Lipscomb vs. Winston, 308 List vs. Piimphrey, 170 Little vs. Julius Lansburg Co., 793 Little Rock & Fort Smith Ry. Co. vs. Clifton, 1 Livermore vs. Rand, 755 Livesay vs. Feamster, 706, 708 Livesay vs. Dunn, 358 Livesay vs. Feamster, 429 Livesay vs. Jarrett, 596 Livey vs. Winton, 323, 541a, 628 Livingston vs. Gibbons, 716 Livingston vs. Hubbs, 212 Livingston vs. Livingston, 426, 1088 Livingston vs. Reynolds, 81 Livingston vs. Snift, 722 Lloyd vs. Kyle, 5686 Lloyd vs. Kerwood, 193 Lloyd vs. Erwin, 670 Lloyd vs. Brewster, 135 L. & M. R. Co. vs. I. C. R. R. Co., 36 L. &, N. R. Co. vs. Boland, 522 L. & M. Co. vs. Brockmeyei-, 678 Lockard vs. Hendrickson, 933 Lockhead vs. Berkeley Springs, 138, 295 Lockwood vs. Charleston Bridge, 519 Lockwood vs. Holliday, 844 Lofland vs. Jefferson, 13 Loftus vs. Maloney, 661, 909 Loker vs. Rolle, 108a Lomax vs. Picot, 702 Lomerson vs. Vroom, 83 London & N. W. R. Co. vs. Lancas- hire, 945a London- Virginia Mining Co., vs. Moore, 566 Long vs. Brown, 851 Long vs. Fox, 619 Long vs. Israel, 862 Long vs. King, 133e Long vs. Majestre, 69 Long and others vs. Weller's Exe. and others, 677 Long vs. People, 471 Long vs. Ferine, 453, 497, 498, 501, 548, 1226 Long vs. Weller, 687, 1209 1540 TABLE OF CASES. (References are to sections.) Long vs. Willis, 646 Long-dale Iron Co. vs. Quesenberiy, ■ 122, 127 Longshore Printing Co. vs. Howell, 958 Lonner vs. Wheelwright, 966 Loop vs. Summers, 47 Lord vs. Hendricks, etc., Mfg. Co., 29 Lord vs. Merroy, 835 Lorentz vs. Lorentz, 211, 212, 223 Loriilard vs. Coster, 622 Lorillard vs. Dias, 183 Louvall vs. Gridley, 329 Louisville & N. R. Co. vs. Taylor, 116 Love vs. Pickens, 568 Lovejoy vs. Patton, 76 Lovelace vs. Hutchinson, 88 Lovell vs. Farrington, 84 Lovell vs. Gold, 665, 667 Lovett vs. Slocomb, 738 Lovett vs. Taylor, 52 Xowe vs. Prospect Hill Cemetery Association, 122 Lowe *s. Protestant Episcopal Church, 1336 Lowenstein vs. Hooker, 205 Lowry vs. Bluffingtoft, 372, 445 Lowry vs. Tew, 384 Lowry vs. McGee. 716 Loyd vs. Malone, 603, 818 Lucas vs. Pittman, 875 Lucas vs. Richardsor, 482 Lucas vs. Transfer Co., 914 Luce vs. Graham, 335 Luce vs. Luce, 118 Luddington vs. Tiffany, 708 Luddington vs. Hull, 238, 240, 794 Ludlow's Heirs vs. Johnston, 848 Ludlow vs. Kidd, 217 Ludlow vs. Ludlow, 116 Ludlow vs. Ramsey, 785 Lum vs. Brock, 528 Lunsford vs. Bostion, 628 Lurgenfelser vs. Simon, 504 Luther vs. McMichael, 673 Lyman vs. Thompson, 36 Lynch vs. Henry, 637 Lynch vs. Hollman, 226 Lynch vs. Rotun, 84 Lynchburg Iron Co. vs. Taylor, 36, 37, 46. 91, 302 Ijyne vs. Jackson, 67 Lyon vs. Hunt, 116 Lyon vs. Lyon, 122 Lyon vs. Perin, etc. Co., 843 Lyon vs. Tevis, 42a Lyon vs. Talmadge, 378 Lyons vs. Miller, 156 Lyttle vs. Cozad, 1088 M. Macauley vs. Shackell, 157 Macclesfield vs. Davis, 157 Macon County vs. Shores, 914 Machir vs. Sehon, 133 Mack vs. DeBardelelien Coal & Iron Co., 58, 714 Mack vs. Prince, 601, 939 Mackenzie vs. Board of School Trus- tees, 874 Maddox vs. \"\'hite, 81 Maddock vs. Skinker. 646. 648 Madison & I. E. Co. vs Norwich Sav. Sec, 914 Maddox vs. Maddox, 545 Magarity vs. Moore, 651 Maganty vs. Shipman, 566, 651, 856 Magers vs. Edwards, 833 Magruder vs. Swann, 67 Maguire vs. Allen, 740 Mahany vs. Kephart, 5, 13, 33, 799 Mahany vs. Pephart and B. & 0. R. Co., 10 Maher vs. Bull, 515 Mahnke vs. Neal, 659, 660 Mahany vs. Capehart, 20 Major vs. Ficklin. 544 Makepeace vs. Lukens, 350 Malaer vs. Hudgens, 612 Malin vs. Malin, 38, 79 Malory vs. Taylor, 374 Malone's Adm'r vs. Hobbs, 134 TABLE OF CASES. 1541 (References arc to sections.) Manatt vs. Scott, 546 Manchester & Lawrence R. Co. vs. Concord R. Co., 159 Mandeville vs. Avery, 753 Mandclle vs. Green, 869 Manett vs. Grucus, 133f Manhattan Co.. vs. Evertson, 384 Manifold vs. Jones, 69 Manion vs. Fahy, 225, 230, 349, 350, 351, 567, 579, 961 Mann vs. Peck, 364, 376 Mann vs. Pentz, 748 Mann vs. Jennings, 676 Mantz vs. Hendley, 317, 779 M.my vs. Beekman Iron Co., 158 March vs. Davison, 156, 157, 159, 299 Marcom vs. Adams, 548 Marcum vs. Powers, 4 Mariveck vs. Norvell, 717 Marks vs. Bryant, 540 Marks vs. Spencer, 532 Marling vs. Robrecht, 16, 17, 596, 034, 678, 681 Marlow vs. Smith, 687 Marmet vs. Archibald, 465 Marquette, etc., E. Co. vs. Mar- quette, 108 Marr vs. Wetzel, 489 Marr vs. Miller, 350 Marrow vs. Brinkley, 374 Marsh vs. Eastern R. R. Co., 39 Marsh vs. Green, 271 Marsh vs. Hague, 69 Marsh vs. Hulbert, 472 Marsh vs. Marsh, 118, 290 Marsh vs. Reed, 116 Marshall vs. Baynes, 002 Marshall vs. Hall, 59 Marshall County Supervisors vs. Schneck, 914 Marshall vs. Marshall, 663 Marshall vs. Olds, 328 Marsliall vs. Rench, 101 Marshall vs. Sladden, 42a Marritt vs. Class, 199 Martz vs. Brown, 246 Martin vs. Atkinson, 343, 344, 345 Martin vs. Burgroyn, 748 Martin vs. Dryden, 447 Martin vs. Foley, 630 Martin vs. McBryde, 46, 138 Martin vs. Martin, 327, 589, 831 Martin vs. Rellehan, 117, 456, 511, 599 Martin vs. Kester, 199, 424, 425, 668, 671 Martin vs. Smith, 38, 97, 218, 241, 526, 085, 892, 1009, 1196 Martin vs. South Salem Land Co., 58, 59, 117, 6;U Martin vs. Warner, 54 'o Martin vs. Ell.vood, 140, 142 Mar.N: vs. McGlynn, 545 Maryland Ins. Co. vs. Bossiere, 489 Marye vs. Root, 108 Maryo vs. Auditoi', 78 Martz vs. Martz, 528 Maslin vs. Iliett, 368, 890a Mason vs. Bari, 322 Mason vs. Bridge Co., 210, 211, 727 Mason City L. & M. Co. vs. Town of Mason, 956 Mason vs. Harper's Ferry Bridge Co., 211. 657, 060. 702, 950 Mason vs. Murray, 332 Mason vs. Spurlock, 09 Mason vs. Wood, 528 Mason vs. York & Cumberland R. Co., 180 Massey vs. Yancey, o41a Massie vs. Iloiskoll, 350 Massie's Adm'r vs. Hei.skell's Trus- tees, 356 Massie \s. ^Vatts, 4 Mathes •v'S. Bennett, 862 Mathewson vs. .Johnson, 906 Mathonican vs. Scott, 2 Matthews vs. Crockett, 541 Matthews vs. Dunbar, 343 Matthews vs. Jenkins, 290, 313, 314, 401a Matthews vs. Roberts, 388 Alattingly vs. Sutton, 593 Mattison vs. Childs, 875 1542 TAELE Olf CASES. (References are to sections.) Maul vs. Connecticut F. Ins. Co., 549 Maus vs. Rome, 794 May vs. Smith, id May vs. Williams, 408 Mayer vs. Bry, 329 Mayer vs. Suggart, 862 Mayers vs. Carter, 672 Mayers vs. Kaser, 541 Maynard vs. Cleaves, 79 Mayne vs. Hochen, 332 Mayor, etc., of New York vs. Brady, 123 Mayo vs. Jones, 870 Mayo vs. Haiiis, 696 May vs. Haines, 696 Mayor of York vs. Pilkington, 34 Mayse vs. Biggs, 557 Maxey vs. Larkin, 289 Maxfield vs. Le\-y, 871 Maxwell vs. Burbridge, 37, 138, 437, 512 Maxwell vs. Foster, 112 Maxwell vs. Miller, 593 Maxwell vs. Northern Trust Co., 840 Mazanger vs. Slocum, 871 McAbee vs. Parker, 79.'! Mcx\dams vs. Honey, 57 McAfee vs. McAfee, 856 McAlexander vs. Hariston, 469 McAlexander vs. Huson's Ex'r, 33 McAllister vs. Bodkin, 670 JIcAlister vs. Clopton, 509 McAnson vs. Martin, 744 McArdle vs. Bullock, 506 McArthur vs. Scott, 84, 378 .rfcBride vs. Potter-Ijovell Co., 57 McCabe vs. Cooney, 388, 427 McCain vs. Mctsclien, 96 McCall vs. Graham, 210 McCall vs. Moss, 613 McCanipbell vs. Mason, 95 McCandlish vs. Edloe, 480, 502 McGandliss vs. Warner, 7,47 McCarty vs. Chalfant, 645, 646 McCartney vs Potomac Electric Co., 354 McCartin vs. Trophai,'cn, 619 McCartney vs. Tyrer, 354 McCarty vs. Woodstock Iron Co., 906 McClain vs. French, 561 McClanahan vs. Ivanhoe Land & Im- pi-ovement Co., 904 McClanahan vs. McClanahan, 548 McClanahan vs. Western Lunatic Asylum, 370 McClandish vs. Keen, 913 McClane vs. Shepherd, 393, 394 McClaiy vs. Grantham, 596, 598 McClary vs. Stull, 870 McChiskey vs. O'Brien, 38, 598, 648, 668 McC'Iaugherty vs. Croft, 70, 3.'J4, 1220 McCIuncy vs. Jackson, 238, 765, 778, 793 McClung vs. Livesay, 39, 78, 953 McClung vs. Philips, 591 McClure vs. Manperture, 370 McComb vs. McDonald, 646 McComb vs. Lobdell, 171 McConaughey vs. Bennett, 84 McConico vs. Mosely, 199 McConnell vs. Cox, 952 McGormick vs. O'Bannon, 57, 593 McCormick vs. JIalin, 905 McCormick vs. Hunter. S:ll McCoskcr vs, Brady, 701 McCoy vs, Allen, 36, 93, 221, 299, 334, 568a, 572 McCoy vs, McCoy, 17, 374, 376, 557, 559, 568, 575, 581, 709, 888 JXcCoy's Ex'or vs. JlcCoy, 30 McCreary vs. Gewinner, 133. 133e McCredie vs. Senior, 723 McCrum vs. Lee, 326, 329, 331 McCue vs. ilcCue, 357 McCue vs. Harris, 430 :\tcCulla vs, Beadleston, 133p McCullis vs. McCullis, 490 McCully vs. McCully, 600, 667 McDaniel vs. Goodal, 405 jMcDaniel vs. Ballard, 696 McDavid vs. Ellis, 539 MclJermott vs, McGown, 183 TABLE OF GASES. 1543 (References are to sections.) McDevitt vs. Frantz, 528 SIcDonald vs. Allen, 139 McDonald vs. Cole, 512, 875 JIcDonald- vs. McDonald, 35, 82, 133f, 401 McDonald vs. White, 82 McDougal vs. Roman, 67 McDougal'3 Adm'x vs. Wiliford, 329 McDougall vs. Miln, 860 McElvery vs. Lewis, 732 McElwee vs. Sutton, 108a McEndree vs. Morgan, 358 McEweu vs. Broadhead, 394 McFarland vs. Douglass, 443 McFarland vs. Hunter, 168, 169 McGavock vs. Clark, 583 McC4ee vs. McGee, 119 McGilliard vs. Donaldsonville Foun- dry & Machine Works, 743 McGillis vs. Hogan, 424 McGilloray vs. Moser, 613 McGlaughlin vs. McGlaughlin's Legatees, 62 McGlaughlin vs. McGraw, 124, 966, 1226 MeGown vs. York, 176 McGrew vs. Forsyth, 366 McGuire vs. Judge, 205 McGuire vs. Wright, 132, 648 Mclnnis vs. The Washington, 481 Mcintosh vs. Moore, 546 Mclntyre vs. Mancius, 163, 165 Mclver vs. Ragan, 365 McJilton vs. Love, 289 McKay vs. McKay, 320, 323, 324, 326, 343, 345 McKee vs. Hann, 818 McKell vs. Collins Colliery Co., 410, 413, 417, 419, 496 McKenzie vs. Baldridge, 106 McKey vs. Cobb, 801 McKinley vs. McLaughlin, 481 McKinney vs. Keil, 567 McKinney vs. Kirk, 568 McKinney vs. Hemmett, 582 McKinster vs. Hitchcox, 381 McKinsey vs. Squires, 661, 801 McKittrick vs. McKittrick, 554 McLaughlin vs. Wheeler, 787 McLaurin vs. Kelly, 374 McLean vs. Adams, 487 McLean vs. Douglass, 791 McLean vs. Truman, 869 McLeod vs. Dell, 559 McMaJion vs. Gray, 61 McMahon vs. McClernon, 736 McMahon vs. McMahon, 621 McMahon vs. Spangler, 506, 714 McMechen vs. McMechen, 525, 536, 541, 545, 546 McMeekin vs. Richards, 83 McMieken vs.- Perrin, 648 McMillan vs. Hickman, 723, 724 McMillan vs. Baxley, 88 McMillin vs. Ferrell, 122 McMuUen vs. Eagan, 193,, 318, 397, 423, 683, 831, 1196 McMiiUen vs. Ritchie, 375 McMurray vs. McMurray, 906 MciSiair vs. Pope 745 McNair vs. Gilbert, 610 McNamara vs. Irwin McNeel vs. Baker, 382 McNulta vs. Lockridge, 875 McNult vs. Trogdon, 93, 378 McQueen vs. Sandel, 133f, USg McPherson vs. Parker, 79, 587 McRae vs. Austin, 787 McRea vs. Boast, 555 McRae vs. Brooks, 630 McReynolds vs. Neale, 770 McTighe vs. Dean, 852 McVeigh vs. Chamberlain, 499 McVeigh vs. Howard, 605 McVey vs. Ely, 345 Meadows vs. Justice, 241 Mead vs. Stribling, 122 Mead vs. Query, 751 Mechanics' Bank vs. Lynn, 104 M. E. Church vs. Wilkinson, 70 Medley vs. Pannill, 728 Meek vs. McCormick, 439 Meek vs. Spracher, 36, 40, 41, 84, 120, 302, 666, 667, 893, 894 Meeks vs. McPhail, 376 Meem vs. Rueker, 103 1544 TABLE OF CASES. (References are to sections.) Mfg. Co. VS. Osgood, 115 M. & F. Bank vs. Mathews, 255, 460 Meier vs. Kelly, 115 Melendy vs. Barbour, 63, 744, 749, 750 Melton vs. Rowland, 482 Memphis, etc. vs. Bibb, 502 Merchants' etc., National Bank vs. Kent, 743 Merritt vs. Hughes, 74 Merritt vs. Lyon, 750 Merritt vs. Merritt, 37 Merriman vs. Chicago & E. I. R. Co., 109 Merwin vs. Smith, 676, 851 Messner vs. Elliott, 546 Metcalf vs. Beuthuyson, 610 Mettert vs. Hagan, 199, 892 Mexican Ore Co. vs. Mexican Guada- lupe Mining Co., 1214 Meyers vs. Nelson, 572 Meyers vs. Meyers, 602 Michigan, etc.. Plaster Co. vs. White, 147 Micon vs. Moses, 747 Miehie vs. Jeffries, 713 Micou vs. Ashurst, 109 Middlebrook vs. Corwin, 81 Middleton Paper Co. vs. Rock River Paper Co., 798 Middleton vs. Selby, 210, 211, 212 Midkitf vs. Lusher, 890a Middleton vs. Selby, 372, 423, 453 (;29 Middleton vs. Pinnell, 283, 298 Middletown vs. Selby, 210 Miles vs. Strong, 329 Miles vs. Boyden, 875 Miles vs. Stehle, 933 Mil ford vs. Beasoy. 200 Millbank vs. Ingersoll, 845 Miller vs. Araeoma, 410 Miller vs. Avery, 444 Miller vs. Black Rock Springs Imp. Co., 314 Miller vs. Burket, 122 Miller vs. Cook, 48. 116, 336, 558, .'-,66, .592 Miller vs. Cox, 480, 933 Miller vs. Fewsmith Lumber Co., 778, 781 Miller vs. Hare, 297, 304, 311 Miller vs. Holeombe, 648 Miller vs. Luco, 116 Miller vs. Mclntyre, 337, 388 Miller vs. McUalligan, 198 Miller vs. Miller, 118, 314, 500, 545, 589, 015, 717 Miller vs. Morrison, 70, 76 Miller vs. Neflf, 17, 481 Miller v.s. Payne, 513a Mincer vs. Peck, 374 Miller vs. Perry, 321 Miller vs. Royee, 350 Miller vs. Saundeis, 104 Miller vs. Texas & N. O. R. Co.. 522 Miller vs. Tobin, .556, 560 Miller vs. Town of Araeoma, 580 Miller vs. Trustees of Jefferson Col lege, 363 Miller vs. United States Casualty Co., 395 Miller vs. White, 114, 238, 240, 773, 785, 780, 793, 796, 1006 Miller vs. \A'ills, 374, 659, 063 Miller vs. Zeigler, 766, 785 Millhiser vs. MoKinley, 508, 628 Milligan vs. Milledge, 387 Milligan vs. Mitchell, 206 Mills vs. Hoag, 180 Mills vs. Cfllby, 1272 Mills vs. Pittman, 452 Milton vs. Rowland, 472 Mills vs. Dennis, 581 Miners' Ditch Co. vs. Zellerbach, 914 Mingo vs. Lackey, 612 Miner vs. Francis, 29 Mingo vs. Purdy. 702 Minot vs. Taylor, S3 Mint'.irn vs. Peyniour, 439, 707 Missouri Pac. R. Co. vs. Fox. 538 Miswell vs. First Cong. Church. 840 Mitchell vs. Amador. Canal, etc.. 81 Mitchell vs. Chancellor. 92. 320, 323, .324. 774 Mitchel, sheriff, vs. Chancellor. 36 TABLE OF CASES. 1545 (References are to sections.) Mitchell vs. Evans, 314 Mitchell vs. Lenox, 91, 299, 388 Mitchell vs. Mitchell, 118 Mitchell vs. Sims, 791 Mix vs. Mix, 118 Mix vs. People, 417 Mi.xon vs. State, 471 M. & M. Bank vs. Evans, 607 Mobile Sav. Bank vs. Burk, 329 Mock vs. City of Santa Rosa, 108 Modlin vs. Kennedy, 81 Moflfett vs. Biekle, 607 Moffett vs. Hanner, 632, 646 Mohawk & Hudson Railroad Co. vs. Clutc, 140, 142, 144 Molton vs. Camroux, 906 Monarque vs. Monarque, 95 Monroe vs. Bartlett, 570 Monroe Bank vs. ^A'idner, 579 Montague vs. Allan, 545, 666 Montandon vs. Deas, 445 Montgomery Branch Bank vs. Par- ker, 166 Montague vs. C. R. &. C. R. Co.. 328 Montgomery Branch Bank vs. Par- ker, 166 Montgomery Co. vs. Barber, 875 Montgomery vs. Olwell, 392 Moon vs. Stone, 622 Moor vs. Ullman, 438 Moore vs. Alden, 870 Moore vs. Bruce, 634 Moore vs. Butler, 627, 630 Moore vs. Dick, 695 Moore vs. Doug-lass, 358 Moore vs. Green, 575 Moore vs. Harper, 97, 311 Moore vs. Herr, 1075 Moore vs. Hilton, 220, 477, 567 Moore vs. Holt, 289, 809 Moor vs. Holt, 772, 575 Moore vs. Hood, 538 Moore vs. Jennings, 36, 955 Moore vs. Johnson, 373 M'lore vs. Ligon, 597, 648. 650 Moore vs. McNutt, 136, 502 Moore vs. Mercer Wire Co., 1272 Moore vs. Moore, 326 Moore vs. Smith, 314, 962 Moore vs. Steelman, 706 Moore vs. Town of Jonesboro, 521 Moore vs. Triplett, 489 Moore vs. Ullman, 438, 541 Moore vs. Veazie, 46 Moore vs. Wheeler, 423, 450, 453 Moorman vs. Crocket, 133, 553, 554 Moorer vs. Moorer, 108 Moorehead vs. Wriston, 366 Moors vs. Moors, 440 Moran vs. Brent, 596 Moritz vs. Miller, 745 Mong vs. Roush, 622 Morgan vs. Blatchley, 36, 61, 91, 93, 572 Morgan vs. Carson, 301 Morgan vs. Fisher, 364 Morgan vs. Hale, 856 Morgan vs. .Jones, 400 Morgan vs. Morgan, 227, 320, 323, 326, 577, 875 Morgan vs. N. Y. & A, P. Co., 748 Morgan vs. Ohio River Railroad Co., 349, 568 Morgan vs. Rose, 36 Morgan vs. Scott, 560a Morgan vs. Woods. 6!) Morotock Ins. Co. vs. Pankey, 10 Morris vs. Hoit, 514 Morris vs. Morris, 514 Morris vs. McCoy, 862 Morris vs. Murphy, 378 Morris vs. Peyton, 36, 70, 220, 350, 351, 579 Morris vs. Roseberry, 116, 358, 901 Morris vs. State, 460 Morris \'s. Sterne, 50 Morris vs. Terrell, 205 Morris vs. Virginia Ins. Co., 570, 570 Morrison vs. Grubb, 104, 438, 439, 511 Morrison vs. State, 475 Morrison vs. Stewart, 350 Morrison vs. Thistle, 831 1546 TABLE OF CASES. (References are to sections.) Morrison vs. Householder, 322, 364, 646, 654 Morton vs. Ohms, 66 Motley vs. Frank, 429 Mott vs. Carter's Admr's, 70 Moulder vs. Kempff, 471 Moulton vs. Cornish, 609 Moundsville vs. Velton, 521 Mount vs. Radford Trust Co., 58, 570, 711, 714 Mt. Olivet Cemetery Co. vs. Budeke, 859 Morse vs. Hovey, 84, 299, 444 Moseley vs. Cocke, 93, '378 Moseley vs. Mastin, 875 Moseley vs. Withers, 290 Mosely vs. Boush, 46 Hyman, Moses & Co. vs. Smith, 208 Moses vs. Johnson, 81 Moses vs. Murgatroyd, 862 Mosier vs. Norton, 646 Morton vs. Grafflin, 331 Morton vs. Thompson, 343 Moran vs. Johnson, 733 Moran vs. Clark, 681, 682, 683 Morehead vs. De Ford, 571, 706 Morey vs. Hoyt, 672 Morey vs. Grant, 748 Moreland vs. Metz, 70, 628 Morley vs. Harait, 478 Mosby vs. Withers, 322, 323, 324, 554 Moss vs. McCall, 646 Moyer vs. Swigart, 621 Muse vs. Farmers' Bank, 607 Muse vs. Friedenwald. 614 Muir vs. Leake & W. Orphan House, 299 Munch vs. Strabel, 323 Muldoon vs. Muldoon, 83 Mullins vs. MeCandless, 46 Murdock vs. Walker, 958 JIusick vs. Musick, 540, 602 Mustard vs. Wohlford, 575 Mutual Life Ins. Co. vs. Oliver, 528, 530 Mutual Reserve Fund Life Ass'n vs. Bradburry, 560a MuUer vs. Bayly, 697, 711 Mullen vs. Norfolk and N. C. Canal Co., 29 Mumford vs. Church, 479 Mumford vs. McVeigh, 620 Munday vs. Vail, 573, 574 Munford vs. Pearce, 105 Munford vs. McVerigh, 80 Munson vs. Munson, 116 Murdock vs. \^'ells, 596, 600 Murphy vs. Moore, 46 Murphy vs. Johnson, 906 Murphy vs. Carter, 532 Murray vs. King, 177 Murray vs. Hay, 84, 85, 89 Murray vs. Finster, 433 Murray vs. Murray, 65, 731, 732 Murray vs. Ballon, 384 Muse vs. Friedenwald, 597 Mustard vs. Wohlford, 906 Mutual Life Ins. Co. vs. Sturges, 108 Mutual Life Ins. Co. vs. Harris, 289 Myers vs. Myers, 401 Myers vs. Rehkohl, 864 Myers vs. Trice, 466, 468, 471 Mynes vs. Mynes, 361, 365 Myers vs. Dorr, 393 N. Nagle vs. Newton, 661. 665 Nance vs. Powell, 69 Nance vs. Stockberger, 864 Napper vs. Mut. L. Ins. Co., 677 Nash vs. Jones, 76 Nash vs. Nash, ,108 Nash vs. Meggett, 742 Nash vs. Upper Appomattox Co., 466 Nash vs. Williams, 508 National Bank vs. Bates, 302, 614 National Bank vs. Bryant, 520 National, etc., Bank vs. Preston, rt ah. 553 National Bank vs. Richmond Fac- tory, 760 TABLE OF CASES. 1547 (References are. to sections.) National Bank of Commerce vs. Smith, 32a National Bank vs. Sprague, 676 National Mutual Bldg. & Loan • vs. Ashworth, 436 National Park Bank vs. Goddard, 38, 747 National State Bank vs. Vigo, 121 Naylor vs. Sidener, 747 Neal vs. Bufflngton, 59 Neal vs. Newland, 794 Neale vs. County Court, 705 Neale vs. Davies, 618 Neale vs. Neale, 329, 859 Neale vs. Ultz, 93 Nease vs. Aetna Ins. Co., 141 Nease vs. Capehart, 69, 133e, 494, 058, 663, 666, 667 Neat vs. Hanson, 296 Nebraska L. & T. Co. vs. Hamer, 676 Neely vs. Bee, 593 Neely vs. Jones, 628, 634, 1139 Neely vs. Roberts, 598 Neeley vs. Rubeys, 70, 608, 669 Neill vs. Rogers, 770, 776, 779 Nelson vs. Bowman, 500 Nelson vs. Cornell, 492 Nelson vs. Jennings, 209, 567, 568, 568a Nelson vs. Kounslar, .349, 364, 568a, 648 Nelson vs. Page, 69 Nelson vs. Pinegar, 81 Nesmith vs. Calvert, 878 Nevan vs. Roup, 482 Nevitt vs. Bacon, 363 New vs. Bass, 37 New vs. Wright, 732 New Hampshire M. F. I. Co. vs. Noyes, 906 New Orleans Water Works Co. vs. City of New Orleans, 36 New York Life Ins. Co. vs. Davis, 466, 469 New York & H. R. Co. vs. Scoville, 122 New York & N. H. R. Go. vs. Schuy- ler, 914 Newberry vs. Blatchford, 202 Newberry vs. Shelly, 374 Newberry vs. Stewart, 229 Newberry Land Co. vs. Newberry, 295 Newcomb vs. Brooks^ 908 Newhall vs. Kastens, 139 Newhouse vs. Martin, 350 Newland vs. Gaines, 848 Newland vs. Wade, 915 Newlin vs. Beard, 536 Newlon vs. Wade, 117, 456, 570, 597 Newlove vs. Callaghan, 430 Newman vs. Chapman, 11 Newman vs. Jackson, 671a Newman vs. Hammond, 737 Niagara Falls Internat. Br. Co. vs. Great West R. Co., 81 Nichols vs. Heirs of Nichols, 314, 343 Nichols vs. McCarthy, 133f Nichols vs. Nichols, 212, 214, 215, 223 Nichols vs. Rogers, 324 Nichols vs. Williams, 38 Nichols vs. Wilson, 714 Nichols vs. Austin, 532 Nichols vs. Kershner, 536 Nicholl vs. Patterson, 871 Nicholson vs. Leavitt, 935 Nickels vs. Kane, 646 Nieoll vs. Ogden, 831 Nims vs. Nims, 129 Nisely vs. Findlay, 74 Nitz vs. Mullen, 661 Nix vs. People, 414 Nixon vs. State, 471 Nodes vs. Battle, 580 Nodine vs. Greenfield, 95 Noel vs. Noel, 1.3, 361. 369, 371 Noland vs. Barrett, 673 Noonan vs. Orton, 615 Norcum vs. Sheahan, 906 Norfolk Trust Co. vs. Foster, 215, 222 Norfolk & W. R. Co. vs. Cottrell, l.T Norfolk & W. R. Co. vs. Daugherty, 399 1548 TABLE OF CASES. (References are to sections.) Norfolk & W. R. Co. vs. McGar)-, 423 Norfolk & W. R. R. Co. vs. Postal Tel. Cable Co., 697 Norris vs. Bean, 117 Norris vs. C. T. H. Co., 115 Norris vs. Harris, 538 Norris vs. Grubb, 440 Norris vs. lie, 46 Norris vs. Lake, 734, 745 Norris vs. Lenien, 317, 323, 859 fv orris vs. Icemen, 36 Ivorris vs. Stappe, 875 Norse vs. M0C03', 862 North vs. Ferrow, 706, 716 Northrup vs. Cooper, 671a Northwestern, etv. Co. vs. Blank- enship, 815 Northwestern Bank vs. Nelson, 159, 294, 308, 316 Noithvvestern Banks vs. Hays, 374 Norton vs. McLeary, 871 Norton vs. Kosboth, 845 Norton vs. Woods, 110 Norvell vs. Lessueur, 664 Norvell vs. Little, 362, 363, 913 Norvell vs. Hedriek, 951 Noyes vs. Sawyer, 75 Noyes vs. Vickers, 706, 708, 713, 850 Nulton vs. Isaacs, 136 Nunnally vs. Strause, 136, 136a Nussear vs. Arnold, 490 Nutt vs. Summers, 645 N. &, W. R. Co. vs. Dougherty, 87 N. & W. Ry. Co. vs. Old Domin- ion B. Co., 708 N. & W. R. Co. vs. Postal Tel. Ca- ble Co., 697 N. & W. R. Co. vs. Prindle, 532 N. & W. R. R. Co. vs. Read, 532 N. & W. R. R. Co. vs. Smoot, 85 N. Y. Life Ins. Co. vs. Davis, 541 Nye vs. Slaughter, 559 O Oakey vs. Bend, i2a O'Bannon vs. Myers, 1088 O'Brien vs. Battle, 133 O'Brien vs. Stambaeh, 397 O'Brien vs. Stephens, 20, 581, 583, 771, 777 O'Connor vs. Clopton, 80 O'Connor vs. Cook^ 2 O'Dell vs. Rogers, 906 Offterdinger vs. Ford, 774 Ogden vs. Chalfant, 732, 738, 740 Ogden vs. Brown, 420 Ogden vs. Davidson, 572 Ogden vs. Moore, 328 Ogilvie vs. Insurance Co., 58 Ogle vs. Adams, 666, 1278 Ohio, etc., E. Co. vs. People, 296 Ohio & M. R. Co. vs. McCarthy, 914 Ohio River R. Co. vs. Ward, 657, 727 Ohio River R. Co. vs. Sehon, 660 Oil Run Petroleum Co. vs. Gale, 139, 699, 740 Oldfather vs. Zent, 553 Oldham vs. Trimble, 401a Olds vs. Tucker, 749 Olds Wagon Co. vs. Benedict, 783 Ohve vs. State, 522 Oliver vs. Chicago, 804 Oliver vs. Clifton, 49 Omohundro vs. Henson, 46 O'Neal vs. Cleaveland, 847 O'Neil vs. Behanna, 958 O'Neill vs. Cole, 401a Oney vs. Clendennin, 358 Oney vs. Ferguson, 62, 66a Orbe vs. Coapstick, 133jr Oreutt vs. Hanson, 4 Orendorf vs. Tallman. 109 Orphan Asylum vs. McCartee, 845 Orr vs. Wiley. 116 Ortley vs. Messere, 63 Ostrander vs. Darling, 48 Owens vs. Kinsey, 482 Owens vs. Owens, 589, 602 Orvis vs. Cole, 317 TABLE OF CASES. 1549 (References are to sections.) Osborn vs. Bank of U. S., 67 Oaboin vs. Blackburn, 538 Osborn vs. Endieott, 133e Osborn vs. Glasscock, 722 . . Osborne vs. Bigstone Gap Colliery Co., 740 Osborne vs. Cabell, 584 Osborne vs. Taylor, 82, 83 Osgood vs. Thurston, 871 Ottw-ood vs. Small, 42a Ould & Carrington vs. Myers, 205 OulJ vs. Meyers, 578 Overby vs. Thrasher, 113 Overstreet vs. Philips, 482 Owens vs. Dickenson, 354 Owens vs. Owens, 527 Oxenham vs. Esdaile, 269 Pace vs. Fieklin, 209, 568, 568a Pac. R. Co. of Mo. vs. Mo. Pac. R. Co., 317 Pacific R. Co. vs. Ketchum, 57fl Paddock vs. Matthews, 787 Page vs. Olcott, 133/ Page vs. Robinson, 81 Page vs. Winston, 510 Paine vs. Commissioners, 871 Paine vs. White, 615 Pairo vs. Bethell, 630, 671 Palmer vs. Garland, 826, 1252 Palmer vs. Garland's Cottimittee. 960 Palmers vs. Hughes, 778 P. & A. Life Ins. Co. vs. Maury, 635 Palmer vs. Northern Mutual Relief Assn., 133 Palys vs. Jewett, 750 Pancake vs. George Campbell Co., 549 Pappenheimer vs. Roberts, 56, 65 Papin vs. Goodrich, 329 Parker vs. Browning, 748 Park vs. Brown, 116 Pardidge vs. Ryan, 638 Park vs. Petroleum, 492 Park vs. Oil Co., 58 Parker vs. Carter, 308, 310, 550 Parker vs. Clark, 229, 412 Parker vs. Dilliard, 211 Parker vs. Donnally, 800 Parker vs. Grant, 329 Parker vs. Hendry, 189 Parker vs. Logan, 209, 568a Parker vs. McCoy, 344 Parker vs. Parker, 905 Parker vs. Shannon, 323 Parker vs. Sherford, 366 Parker vs. State, 227 Parker vs. Valentine, 568, 669 Parker vs. Wakeman, 721 Parkhiirst vs. Lowter, 159 Parkman vs. Aicardi, 81, 84 Parkman's Adm'r vs. Aicardi, 84 Parks vs. Parks, 622 Parramore vs. Taylor, 545 Pan-ill vs. McKinley, 32.3, 326, 329 Parr vs. Pell, 749 Parson's Adm'r vs. Wilson, 107a Parsons vs. Johnson, 336 Parsons vs. McCracken, 361, 365 Parsons vs. Parsons, 547 Parsons vs. People, 723 Parsons vs. Riley, 374 Parsons vs. Smith, 578 Parsons vs. Snyder, 671, 717, 1213 Parsons vs. Thornburg, 596 Parsons vs. Wilkinson, 942 Parton vs. Allison, 61 Partridge vs. Jackson, 107 Partridge vs. Mitchell, 353, 354 Pasco vs. Gamble, 81 Pasgo vs. Gamble, 746 Patch vs. Ward, 123 Pate vs. MeCIure, 133 Patten vs. Patten, 646 Patten Paper Co. vs. Kaukauna Wa- ter Power Co., 136o Patterson vs. Eakin, 553, 554, 678, 680 Patterson vs. Hubbard, 482 Patterson vs. Martin, 526 Patterson vs. Patterson, 546 1550 TABLE OF CASES. (References are to sections.) Patterson vs. Pultman, 821 Paxton vs. Paxton, 299, 453, 526 Paxton vs. Rich, 362, 614, 655, 913 Paxton vs. Stuart, 182 Paul \s. Paul, 663 Paynes vs. Coles, 439 Payne vs. G-rini, 33 Payne vs. Graves, 405 I'ayne vs. Webb, 596 Payne vs. Zell, 581 Peacock vs. Stott, 116 Peaks vs. McAvery, 444 Pearson vs. Darrington, 447 Pearee vs. Elwell, 747 Pearce vs. Grove, 344 Pearson vs. Pearson, 870 Pearson vs. Ward, 153 Peay vs. Duncan, 392 Peck vs. Chambers, 13, 25, 314, 598, 685 Peck -is. Randall, 360 Peers vs. Barnett, 639, 868 Peery vs. Peery, 666 Peipho vs. Peipho, 118 Peirce vs. West, 335 Peltzer vs. Hughes, 745 People vs. Browser, 722 People vs. Center^ 592 People vs. Compton, 722 People vs. Diedrich, 1272 People vs. Equity Gas Light Co., 67 People vs. Holden, 296 People vs. Kostka, 958 People vs. McCafifey, 118 People vs. Norton, 740 People vs. Rensselaer, 412 People vs. Rice, 96 People vs. Spalding, 723, 724 Peoria Steam Marble Wks. vs. Hickey, 755 People vs. Wilcox 811 People vs. Wilzig, 958 Pendleton vs. Bower, 38 Pendleton vs. Smith, 776 Penfold vs. Nunn, 206 Pendleton vs. Fay, 186 Penn vs. Bahnson, 57 Penn vs. Ingles, 614, 717 Penn Mut. Life Ins. Co. vs. Union Trust Co., 447 Penn vs. Whitehead, 737 Pennington vs. Gittings, 447 Pennington vs. Governor, 1088 Pennington vs. Hanby, 99, 868 Penn-oyer vs. Neff, 786 Pennypaeker vs. Switzer, 574, 603 Perkins vs. Berry, 636 Perkins vs. Greever, 528 Perkins vs. Siegfried, 361 Perkins vs. ■\\'ashington Ins. Co., 615 Perry vs. Foster, 426 Perry vs. Kearney, 719 Perry vs. Perry, 105 Perry vs. Phillips, 214 Perry vs. Ruby, 440, 532, 536 Ferryman vs. Burgster, 864 Ferryman \s. Pope, 784 Persons vs. Leary, 751 Persons vs. Nevitt, 845 Peshine vs. Shepperson, 480 P. Episcopal E. Security vs. Church- man, 618 Perkins vs. Siegfried, 39, 50 People vs. Clark, 719 Peters vs. Neville, 646 Peterson vs. Laik, 906 Peterson vs. Parriott 708, 712 Pethel vs. McCullough, 205, 844, 892, 1275 Fetire vs. Retire, 42 Petit vs. Shepherd, 582 Petit vs. Teal, 539 Pettibone vs. James, 133 Fettit vs. Jennings, 447 Pettibone vs. Stevens, 866 Pettus vs. Atlantic Sav. & L. Assn., 133 Pettijohn vs. Benson, 323 Pettyjohn vs. Burson, 334 Peyton vs. Cabell, 571 Phelan vs. Phelan, 118, 861 Phelps vs. Conover, 073 Phelps vs. Foster, 727 Phelps vs. McDonald, 560a Philadelphia vs. Jenkins, 189 TABLE OF CASES. 1551 (References are to sections.) Philhower vs. Todd, 329, 331, 332 Phillips vs. Green, 906 Phillips vs. Edsall, 339 Phillips vs. Phillips, 113, 210, 234, 602 Phillips vs. Prevost, 403 Phillips vs. The Commonwealth 390 Phoenix vs. Hill, 862 Phoenix vs. Ingraham, 447 Physio. Med. College vs. Wilkin- son, 815, 906 Piatt vs. Oliver, 84, 387 Piatt vs. Vattier, 353 Pickens vs. Knisely, 105, 323, 327, 328 Piekeus vs. Love, 358, 362, 376 Piekens vs. MeCoy, 605, 660 Piekens vs. Obenstein, 538 Pickett vs. Morrison, 611 Pickler vs. Rainey, 804 Piedmont Bank vs. Hatcher, 512, 541 Piedmont & Arlington L. Ins. Co. vs. Maury, 93, 226, 227, 913, 1264 Piedmont, etc., K. Co. vs. Speelman, 719 Pierce vs. Chase, 205 Pierce vs. Graham, 219, 671a Pierce vs. Triggs, 816, 826 Pierce's Adm'r vs. Trigg's Heirs, 603 Pierey vs. Beckett, 105, 171, 328, 336 Pierey vs. Pierey, 401, 557 Pierpont vs. Town of Harrisville, 956 Pillno vs. Improvement Co., 500 Pinchback vs. Graves, 822 Pindall vs. Bank, 606 Pinner vs. Edwards, 257 Pintard vs. Tackington, 610 Pithole Creek Petroleum Co. vs. Rit- tenhouse, 707 Pittsburg, etc., R. Co. vs. O'Brien, 116 Pittsburgh, C. & St. L. R. Co. vs. Keokuk & H. Bridge Co., 914 Pitzer vs. Burns, 362, 363 Pitzer vs. Logan, 60 Pitts vs. Powledge, 324 Plainville vs. Brown, 477 Planters' etc., Bank vs. Seavens, 804 Platter vs. Elkhart County, 520 Piatt vs. Rowland, 244 Pleasants vs. Ross, 658, 663, 666 Ploman vs. Riddle, 38 Pogson vs. Owen, 84 Poindexter vs. Burwell, 301, 564 Poindexter vs. Davis, 169, 308 Poling vs. Flanagan, 775 Poling vs. Huffman, 59, 62, 527, 646, 653 Poling vs. Johnson, 557 Poling vs. Maddox, 386, 387 Polk vs. Gallant, 46 Pollard vs. Sively, 490 Pollard vs. Welford, 193 Pollock vs. Ehle, 289 Poison vs. Poison, 115 Poole vs. Dilworth, 318, 450 Poor vs. Carleton, 851 Pope vs. Leonard, 108 Pope vs. Marshall, 80 Porter vs. Christian, 651 Porter vs. Johnson, 676 Porter vs. Nekervis, 58 Porter vs. Porter, 602 Porter vs. Young, 2, 439, 628, 651, 776 Portland, etc.. Steamboat Co. vs. Sacke, 133e Portsmouth Gas Co. vs. Sangfora, 776, 799, 800 Post vs. Hackall, 354 Postal Tel. Cable Co. vs. N. & ,W. R. Co., 724 Potts vs. Coleman, 480. 501 Powder Co. vs. Powder Co., 297 Powell vs. Batson, 660 Powell vs. Campbell, 589 Powell vs. City of Parkersburg, 78 Powell vs. Manson, 404, 666, 667 Powell vs, Matthias, 46 Powell vs. Powell, 118 Powers vs. Powers, 546 1552 TABLE OF CASES. (References are to sections.) Powers vs. Shepard, 490 P-owell vs. Young, 105 Piatch vs. Lange, 212, 216 Piather vs. Pritchard, 490 Pratt vs. Huggins, 363 Pratt vs. Kendig, 507 Pratt vs. Philbrook, 115 Prentis vs. Bates, 536 Prescott vs. Hubbell, 340 Pressly vs. Harrison, 731 Pressley vs. Lamb, 737 Preston vs. Aston, 59, 387, 392 Preston vs. Heiskell, 191, 420 Preston vs. Preston, 593 Preston vs. Stewart, 133c Price vs. Bell, 133e Price vs. Ferman, 906 Price vs. Pinnell, 29, 557 Price vs. Scott, 344 Price vs. Thrash, 597 Price vs. Tison, 110 Prichard vs. Hicks, 69 Prichard vs. Evans, 626 Prince vs. Prince, 896 Princess of Wales "s. Liverpool, 206 Proudfoot vs. Clevinger, 593 Prouty vs. Hallowell, 747 Proudfoot vs. Hume, 852 Pryor vs. Adams, 156, 310 Pugh vs. Jones, 583 Pugh vs. McCue, 574 Pulaski Iron Co. vs. Palmer, 591 Pulliam vs. Aler, 771, 772, 779, 798, 807 Pulliam vs. Tompkins, 670 Pulliam vs. Winston, 697, 713 Pullman vs. Alley, 289 Pullman vs. Ellis, 58 Pumphrey vs. Brown, 349 Purcell vs. Purcell, 589, 896 Purdie vs. Jones, 226. 572 P\iryear vs. Taylor, 809 Purvis vs. 'Woodward, 445 Pusey vs. Gardiner, 304 Pusey vs. Wright, 535 Putnam vs. Clark, 214 Putnam vs. Collamore, 83 Putnam vs. Day, 211 Putnam vs. Larimore, Wright, 489 Putman vs. Ritchie, 111 Pyles vs. Furniture Co., 120, 136 Pyott vs. Pyott, 823 Q. Quarrier vs. Carter, 575 Quarrier vs. Peabody Ins. Co., 277, 283 Quarrier vs. Quarrier, 306, 526 Quayle vs. Guild, 646 Quesenberry vs. Barber, 133, 686, 817 Quesenberry vs. People's B. L. and S. Ass'n, 5, 12, 799 Quigley vs. Roberts, 823 Quinn vs. People, 65 Rabe vs. Dunlap, 914 Rachelman vs. Skinner, 787 Radcliff vs. Corrothers, 193, 423, 578 Rader vs. Adamson, 25, 277 Rader vs. Bristol Land Co.. 85 Radford vs. Fowlkes, 132, 358, 420, 439, 460, 469, 471, 493, 494, 511, 532, 567, 1140 Ragland vs. Broadnax, 191, 205 Ragan vs. Smith, 535, 537 Raisin Fertilizer Co. vs Bell, 71 Railroad Co. vs. Guesler. 29 Railroad vs. Todd, 808 Railroad Qo. vs. Byers, 361 Railroad Co.' vs. Griffith's, 809 Railroad Go. vs. Holbrook, 349 Railroad Co. vs. Jackson, 464 R;iilroad Co. vs. Ryan, 374 Railroad Co. vs. Wheeling, 568 Ralston vs. Lahee, S21 Pvalston vs. Town of Weston, 370 Ramsburg vs. Erb, 795 Ranison vs. Stonington Savings Bank, 410 TABLE OF CASES. 1553 (References aie to sections.) Randolph vs. Inman, 613 Randolph vs. Randolph, 212, 403, 429, 706 Randolph vs. Tucker, 696, 698 Xiankin vs. Rothschild, 747 Ransom vs. Greer, 108 Ranson vs. High, 128 Rardabush vs. Miller, 683 Rathbone vs. Gas Company, 58, 131, 914 Rateliff vs. Polly, 571 Ratliflf vs. Vandikes, 532 Rawles vs. Carr, 4 . Rawlings vs. Rawlings, 209, 210, 211, 226, 228, 229, 493, 567, 568, 568a Rawson vs. Rawson, 44 Raub vs. Nisbett, 539 Raub vs. Otterback, 15, 20, 21, 775 Ray vs. Sherwood, 44 Raynor vs. Julian, 84 Raymond vs. Williams, 486 R. Co. vs. Postal Tel. Cable Co., 697 Reading vs. Reading, 118 Read vs. ^Yinston, 648 Reardon vs. Farrington, 482 Reavis vs. Reavis, 861 Re Burkman's Will, 546 Re Carter, 868 ' Rector vs. Rector, 447 Redwood vs. Reddick, 356, 362 Red vs. Ramey, 614 Redd vs. Dyer, 68? Redd vs. Jones, 74 Reed vs. Aldbama, 378 Reed vs. A.xtell, 663, 750 Reed vs. Cline, 568, 568a, 659, 661 Reed vs. Cumberland Mut. F. Ins. Co., 511 Reed vs. Dyer, 680 Reed vs. Hedges, 86, 827 Reed vs. McCIoud, 770 Reed vs. Patterson, 41 R?ed vs. Randel, 489 Rees vs. Conocheeague Bank, 875 Rees vs. Wallace, 133 T)''ese vs. Kinkead, 875 Reese vs. Kirk, 586 Reeve vs. Eft, 857 Reeves vs. Dickey, 865 Reger vs. O'Neal, 626, 648, 650 Reherd vs. Clem, 530 Rebkopf vs. Kuhland, 630 Reid vs. Gifford, 88 Reid vs. Stuart, 183, 184 Reilly vs. Reilly, 840 Reinhardt vs. Reinhardt, 62 Remington vs. Superior Ct., 118 Remson vs. Remson, 032 Renick vs. Ludington, 374, 378, 664, 575 Rennick vs. Wilson, 331, 332 Repass vs. Moore, 365, 558, 566 Requa vs. Rea, 673 Re Lutz, 538 Rest vs. McQuiston, 546 Revely vs. Skinner, 409 Rex vs. Creel, 584 Rex vs. Wilkes, 322 Rexroad vs. Ellison, 30 Rexroad vs. McQuain, 69 Rexroad vs. Wells, 83, 316, 323, 870 Reynolds vs. Aetna Life Ins. Co., 753 Reynolds vs. Bank, 60, 117 Reynolds vs. Campling, 471 Reynolds vs. Crawfordsville, 511 Reynolds vs. Everett. 719 Reynolds vs. Excelsior Coal Co., 115 Reynolds vs. Gawthrop, 367, 541(/ Reynolds' Adm'rs vs. Gawthrop's Heirs, 541a Reynolds vs. Jordon, 787 Reynolds vs. Quick, 742, 745 Reynolds vs. Pettijohn, 63, 751, 753 Reynolds vs. Phare, 445 Reynolds vs. Reynolds, 210 Reynolds vs. The Bank of Virginia, 133, 316, 461, 562 Reynolds vs. Stockton, 573, 574 Rhea vs. Puryear, ^23 Rhoads vs. Rhoads, 821 Rhoades vs. Arnsinch, 655 Rhode Island vs. Massachusetts, 392, .394. 471 Rice vs. Hartman, 119, 913 1554 TABLE OF CASES. (References are to sections.) Kice vs. White, 356 Rich vs. Thomas, 707 Richards vs. Richards, 108 Richards vs. Salter, 142 Richardson vs. Boright, 906 Richards vs. Butler, 818 Richardson vs. Donehoo, 60, 138, 402, 403, 413, 414, 415, 416, 417, 443, 450, 497, 510, 575, 951 Richardson vs. Duble, 493, 494, 567, 639 Richardson vs. Hunt, 69 Richardson vs. Pate, 906 Richardson vs. Planters' Bank, 549 Richardson vs. Ralphsnyder, 227, 552 Richardson vs. Richardson, 340, 341, 861 Richardson vs. Tyson, 823 Richeson vs. Richeson, 809 Richmond's Appeal, 545 Richmond Union Pass. Rj'. Co. vs. New York Seabeach Co., 15, 512 Richmond Union Pass. Ry. Co. vs. New York S. Ry. Co., 539 Richmond Union Pass. Ry. Co. vs. Richmond F. & P. R. Co., 522 Richter vs. Jerome, 153, 154 Riekards vs. Schley, 378 Riekards vs. Patterson, 636 Richter vs. Jerome. 154 Ricker vs. Sehudt, 70 Ricker vs. Powell, 214 Rieord vs. Cent. Pac. R. R. Co., 66 Riddle vs. McGisnis, 353, -359, 360, 465 Riddle vs. Stevens, 110 Ridgely vs. Bend, 97 Ridgely vs. Bennett, 409 Ridgely vs. Ridgely, 44 Ridley vs. Obee, 347 Riehl vs. Evansville Foundry Assn., 133, 1333 Riggan vs. Riggan, 361 Riggott vs. Holloway, 489 Riggs vs. Armstrong, 185, 191, 892 Riggs vs. Huffman. 214. 218 Ki^hter vs. Riley. 361, .■'.65, 647 Riggs vs. Lockwood, 557, 575 Riley vs. Carter, 108*, 935 Riley vs. Jarvis, 277, 378 Riley vs. Joins, 289 Rinehart vs. Rinehart, 85 Riner vs. Tonslee, 646 Ringer Stove Co. vs. Bowers, 778 Ringo vs. Brooks, 366 Ringold vs.; Sniter, 805 Rison \s. Newberry, 615 Ritchie vs. Pease, 116 Rivard vs. Rivard, 546 Riverview Land Co. vs. Dance, 361 Rixey vs. Detrick, 541a Roach vs. Glos, 403, 441, 445, 447, 449, 511, 706 Roach vs. Gros, 438 Roanoke St. Ry. Co. vs. Hicks, 158, 410 Roath vs. Smith, 62 Robbin vs. Eaton, 906 Roberts vs. Abbott, 82 Roberts vs. Cocke, 605 Roberts vs. Coleman, 227, 573 Roberts vs. Fleming, 71 Roberts vs. Peary, 200 Roberts vs. Sligleman, 344 Roberts vs. Staunton, 214. 401 Roberts vs. Wiggin, 906 Roberts' Adm'r vs. Cocke Ex'r, 22.v> Robertson vs. Allen. 647 Robertson vs. Baker, 613, 629 Robertson vs. Gillenwaters. 69, 802 Robertson vs. Hoge, 775, 781, 783, 785 Robertson vs. Read, 364 Robertson vs. Smith, 677, 680 Robertson vs. Tapscott, 67 Robertson vs. Trigg, 593 Robertson vs. Wright, 381 Robins vs. Armstrong. 541n Robinson vs. Allen, 39, 656. 658, 659 Robinson vs. Braiden. 717 Robinson vs. Brown. 520 Robinson vs. Byron, 945a Robinson vs. Dix. 91. 138, 298, 302, 4,37. 511. 512, 572, 962 Robinson vs. Howe, 36 TABLE OF CASES. 1555 (References are to sections.) Robinson vs. James, 536, 527 Kobinson vs. Smith, 91, 291 Robinson vs. State, 471 Robinson vs. Robinson, 861 Robinson vs. Wheeler, 233 Robinson vs. Woodford, 84a Robreeht vs. Marling, 279 Robreeht vs. Robreeht, 706, 707 Rockwood vs. VValeott, 70 Rodgers vs. De Forest, 332, 334 Rodman vs. Henry, 739 Rodg'ers vs. Rodg-ers, 331, 334, 340 Rogers vs. Blackwell, 136a Rogers vs. Chambers, 527 Rogers vs. Denham, 374 Rogers vs. Dougherty, 740 Rogers vs. Evarts, t>58 Rogers vs. French, 404 Rogers vs. Paterson, 834 Rogers vs. Rogers, 79, 869 Rogerson vs. Shepherd, 945« Rogers vs. Simpson, 336 Rogers vs. Strother, 568(( Rogers vs. Traders' Ins. Co., 38 Rogers vs. Verlander, 129, 402, 413, 430, 541a Rogers vs. Warren, 54 Rohrer vs. Travers, 596, 598, 659, 661 Roland vs. Bank, 404 Rollins vs. Fisher, 507, 714 Rollins vs. Henry, 746 Rollins vs. Marsh, 755 Rolls vs. Andes Ins. Co., 800 Ronald vs. Bank, 262 Rondeau vs. Wyatt, 344 Roof vs. Stafford, 906 Roosevelt vs. Ellithorp, 862 Roots vs. Kilbreth, 650 Roots vs. Salt Co., 205, 578 Root-Tea-Na-Herb Co. vs. Rightmire, 227 Rootes vs. Holliday, 105 Rover Iron Co. vs. Trout, 384, 433 Rose vs. Brown, 498, 579, 597, 598, 672 Rose vs. Swan, 76 Rose vs. Rose, 861 Roseberry vs. Roseberry, 66o Roaenbaum vs. Goodman, 593 Ross vs. Austin, 801 Ross vs. Gordon, 865 lioss vs. Norvell, 363 Ross vs. Payson, 52 Rossett vs. Fisher, 596 Rossett vs. Gardner, 471 Rossett vs. Greer, 316, 339, 422, 460, 474 Rottenburgh vs. Fowl, 54 Roundtree vs. McKay, 559 Rouskulp vs. Kershner, 392 Routh vs. Peach, 113 Rowan vs. Chenoweth, 365, 539 Rowe vs. Bentley, 356, 358 Rowe vs. Marchant, 366 Rowlett vs. Lane, 808 Rowton vs. Rowton, 434, 805 Roy vs. Roy, 870 Ruckman vs. Decker, 353 Rumn vs Co.^c, 362 Ruffners vs. Barrett, 713 RiiHin vs. Commercial Bank, 702 Ruffners, Donnally & Co. vs. Hew- itt, Kerchival & Co., 42, 381, 578 Rufl'ner vs. Hewitt, 205, 287, 382, 605 Ruffners vs. Lewis, 183 Ruffners vs. Mairs, 740, 744 Ruhl vs. Ruhl, 349, 567, 568, 568o, 571, 668, 722, 724, 1172 Ruhl vs. Rogers, 769, 780 Runnels vs. Kaylor, 350 Runner vs. Scott, 793 Ruby Chief Min. & Milling Co. vs. Gruly, 29 Rupert vs. Penner, 538 Russell vs. Barstow, 116 Russell vs. Dickeshied, 162, 163, 918, 710 Russell vs. Easterbi-ook, 753 Rus.sell vs. Hint-on. 805 Rust vs. Ru.st. 105. 397. 424, 646 Rnth vs. Green Bay & M. R. Co., 767 Rutter vs. Sullivan, 287, 324 512, 873 1556 TABLE OF CASES. (References are to sections.) Ryan vs. Dunphy, 539 Hy. Co. vs. Jewett, 740 Eyan vs. Kriae, 620 Ryan vs. Manning, 818 Ryan vs. McLane, 295 Ryan vs. MeLeod, 230, 566, 568o, 569, 913 Ryan vs. O'Connor, 480 Ryan vs. Thomas, 349, 350 Ryves vs. Ryves, 108a Sadler vs. Kennedy, 365 Sadler vs. Taylor, 84, 138, 548 Sadler vs. Wliitehurst, 136, 628 Sage vs. Hammonds, 66 Sailes vs. Sailes, 81 Salamone vs. Keiley, 564, 571 Sale vs. Dislunan, 139 Salman vs. Smith, 405 Salmon vs. Clagett, 81, 157, 559 Salter vs. Krueger, 85 Saltmarsh vs. Bower, 166 Sammis vs. Hitt, 794 Sample vs. Rowe, 50 Samuel vs. Cravens, 482 Samuel vs. Marshall, 69, 661, 905 Samuel vs. Zaehery, 593 Sanborn vs. Adair, 509 Sanders vs. Price, 538 Sanders vs. Reed, 81 Sandheger vs. Hosey, 765 Sandige vs. Graves, 800, 809 Sandon vs. H-ooper, 81 Sands vs. Beardsley, 661 Sands vs. Lynham, 218, 220 Sandusky vs. Farris, 414. 415, 711 Sandy vs. Randall, 643, 646 Sanford vs. Head, 961 Siinford vs. Sinclair, 740 Sangston vs. Gordon, 3* Sasser vs. Sasser, 193 Saunders vs. Frost, 85 Saunders vs. Griggs, 311, .349. 582 Saunders vs. Prunty, 646 Savage vs. Benham, 514 Savannah, etc., R. Co. vs. Atkinson, 49 Savell vs. McCurdy, 13 Savery vs. Sypher, 677 Sawyer vs. Boyson, 476 Sawyer vs. Campbell, 275 Sawyer vs. Twiss, 81 Saxton' vs. Davis, 84 Saxton vs. Stowell, 276 Sayre vs. Durwood, 502 Sayre vs. Elyton Land Co., 235 Sayre vs. Frederick, 428 Sayre vs. Harpold, 374 Sayre vs. Wall, 199 Seamster vs. Blackstock. 573, 574 Scanlan vs. Scanlan, 397 Scarborough vs. Myrick. 116 Scarf vs. Aldrieh, 818 S. C. Forsaith Mach. Co. vs. Hope Mills Lumber Co., 747 Schabel vs. Schabel, 589 Schafberg vs. Schafberg, 328 Scharfenburg vs. Bishop, 485 School Board of Albemarle vs. Far- ish's Adm'r, 136 School Trustees vs. Snell, 67 lo Schoonover vs. Bright, 122 Scott vs. Buchanan, 900 Schilb vs. Moon, 77 Schlentker vs. Clade, 47 Schmidt vs. Schmidt, 431 Schmitz vs. St. Louis Ry. Co., 847 Schoonover vs. Bright. 429, 706 School District vs. Holmes. 397 Schraeltz vs. Rix, 508 Schraertz vs. Hammond. 682, 683 Schultz vs. Hansbd-ough, 438, 596 Schwarz vs. Wendell, 381 Schuman vs. Peddicord. 935 Scofleld vs. Parlin, 537 Scott vs. Chenovvoth, 136(» Scott vs. Dameron, 579 Scott vs. Gibbon, 510 Scott vs. Grant, 427 Scott vs. Luddington, 46, 575, 596, 598 TABLE OF CASES. 1557 (References are to sections.) Scott vs. Pinkerton, 629 ' Scott vs. Rowland, 192, 424, 425 Scott vs. Turley, 336 Seliultz vs. McLean, 115 Schcffling vs. Scheffling, 118 Schwab vs. Schwab, 171 Schubert vs. Wabash, 109 Scott vs. Wharton, 81 Scott vs. Winningham, 821 Scraggs vs. Hill, 357, 430, 548, 1226 -Seranton vs. Stewart, 906 Screven vs. Clark, 875 Seabright vs. Seabright, 132, 262, 443, 527, 531, 628, 638, 1126, 1140 Seals vs. Robinson, 100 Searle vs. Lead, 122 Searcy vs. Hunter, 906 Searle vs. Richardson, 507 Sears vs. Powell, 84 Sears vs. Shoat, 79 Sears vs. Starbird, 29 Seay vs. Schue, 747 Seborn vs. Beckwith, 327, 353 Secrist vs. Petty, 397 Secor vs. Singleton, 1272 Sedgwick vs. Cleveland, 38 Seelman vs. Hoagland, 131 Segar vs. Parrish, 136 Seiber vs. Ropp, 74 Seibert vs. Minn., etc., Ry. Co., 79 Seller vs. Union Mfg. Co., 579 Seimvs. O'Grady, 439, 452, 516, 536 Seldon vs. Vermilya, 332, 337 Selleck vs. Mathews, 69 Sellers vs. Stoffel, 738, 742 Series vs. Cromer, 568 Setzer vs. Beale, 334, 335, 347, 659, 660. 661 Setzer vs. Setzer, 65S Sewing Machine Co. vs. Dunbar, 210, 212 Seymour vs. McDonald, 81 Seymore vs. Seymore, 310 Schackelford vs. Sehackelford, 748 Shaffer vs. O'Brien, 136 Shaffer vs. Fetty, 93, 136, 1366, 323, 572 Shank vs. Groff, 548 Shannon vs. Hanks, 743, 744, 746 Sharitz vs. Mayers, 46, 420 Sharon vs. Tucker, 592 Sharon vs. Sharon, 344 Sharp vs. Morrow, 632 Sharp vs. Shenandoah Furnace Co., 211 Sharpe vs. Pike, 205 Sharpe vs. Rockwood, 69, 630 Shaul vs. Rinker, 198 Shaw vs. Allen, 295 Shaw vs. Brown, 767 Shaw vs. Camp, 870 Shaw vs. Chester, 142, 144 Shaw vs. Coster, 140, 144, 147 Shaw vs. County Court, 350 Shaw vs. Dutcher, 858 Shaw vs. Hersey, 933 Shaw vs. McGregory, 490 Shaw vs. Patterson, 567 Shaw vs. Silloway, 361 Shaw vs. Wright, 687 Shay vs. Nolan, 706 Sheeler vs. Speer, 502 Sheets vs. Selden, 119a, 859 Shelbey vs. Tardy, 105 Sheldon vs. Blanwell, 47 Shenandoah Val. R. Co. vs. Griffith, 171, 327, 328, 3^6, 776, 799. Sheran vs. Kearney, 547 Sheridan vs. Cameron, 106 Shenvin vs. Smith, 567 Sherman vs. American Stove Co., 136a Sherman vs. Joslin, 857 Sherry vs. Perking, 958 Shepard vs. Chapman, 210, 211 Shepard vs. Manhattan Ry. Co., 88 Shepherd vs. Frys, 437 Shepherd vs. Larue, 218 Shepherd vs. McClain, 862 Shepherd vs. Nabors, 538 Shepherd vs. Stark, 577 Shepherd ,vs. Snodgrass, 478, 490, 522 Shepherd vs. Thompson, 482 Shepherd vs. McEvers, 79 1558 TABLE OF CASES. (References are to sections.) Sheppard vs. Stark, 36, 69, 105, 209, 349 Sheppards vs. Turpin, 357 Shepphard vs. Turpin, 133f Shewen vs. Vaii4erhest, 354 Shields vs. Burrows, 323 Shields vs. Farmers' Bank, 575 Shields vs. McClung, 103, 710, 712 Shields vs. Perkins, 841 Shinn vs. Board of Education, 93, 1-70, 227, 333, 334, 335, 708, 850, 1004 Shirey vs. Musgrave, 566, 568 Shirley vs. Feners, 153 Shirley vs. Ferrers, 107a Shirley vs. Long, 137, 449, 513a Shipley vs. Pew, 358 Shipman vs. Allee, 840 Shipraan vs. Bailey, 350, 605 Shipman vs. Fletcher, 651, 653, 865 Shipman vs. Horton, 906 Short vs. Kieflfer, 100, 130 Shorthill vs. Ferguson, 323 Shotterkink vs. Wheeler, 123 Shonk vs. Knight, 320, 323, 326, 429, 706. 707, 708, 709 Shook vs. Proctor, 513a Shrewsbury vs. Miller, 624 Shuck vs. Price, 681 Shugart vs. Thompson, 382 Shultz vs. Hansbrough, 653 Shumate vs. Fauquier Co., 374 Shum vs. Sewell, 165 Shumate vs. Crockett, 349, 350, 1116 Shumate vs. Dunbar, 575 Shumate vs. WilHams, 670 Shurtz vs. Johnson, 438, 440 Shuttleworth vs. Shuttleworth, 311 Sibert vs. Wilder, 366 Sicard vs. Davis, 338 Sides vs. Seharff Bros., 65 Sides vs. Schariff, 121 ^ilberberg vs. Pearson, 86 Sillings vs. Bumgardner, 65, 69, 304, 322, 324, 327 Sills vs. Brown, 233 Silverman vs. Greaser, 504 Silver Val. Min. Co. vs. Baltimore G. & S. M. & S. Co., 58 Sim vs. Russell, 546 Simmerman vs. Songer, 545 Simmons vs. Simmons, 133, 437,' 450, 499, 528, 646 Simon vs. Ellison, 65 Simon vs. MeQuain, 36 Simpson vs. Brewster, 840 Simpson vs. Edmiston, 110, 115, 276, 279, 293a, 592, 1135 Simpson vs. South Carolina Mut. Ins. Co., 521 Sims vs. Bank of Charleston, 451, 575 Sims vs. JaeobsoUj 778 Simms vs. Simms, 133e, 226, 566 Simmons vs. Lyles, 635 Sims vs. Tyrer, 764, 780, 786 Singer Mfg. Co. vs. Bennett, 05, 519, 628 Singleton vs. Lewis, 697 Singleton vs. Singleton, 216, 225 Sinnett vs. Cralle, 685 Siron vs. Ruleman's Ex'r, 844 Sisson, C. & Co., vs. Johnson, 122 Sit'ingston vs. Brown, 412 Skaggs vs. Maim, 227 Skinner vs. Judson, 157, 159 Slack vs. Jacob, 571 Slack vs. Wolcott, 187 Slader vs. Heitz, 408 Slater, Myers & Co. vs. Arnett, 613, 629 Slatter vs. Carroll, 129 Slattery vs. Wason, 79 Slaughter vs. Froman, 69 Slee vs. Bloom, 628 Slingluff vs. Gainer, 25. 99, 399, 420, 567, 568, 568a, 1114 Sloan vs. Hudson, 770 Sloan vs. Wliiteman, 216 Sluokland vs. Sluckland, 350 Sly vs. Hunt, 377 Smith vs. Althus, 638 Smith vs. Babcock, 343, 347 Smith vs. Betty, 438, 660, 661 Smith vs. Biscailuz, 818 TABLK Olf CASES. 1559 (References are to sections.) Smith vs. Blackwell, 230 Smith vs. Brittenham, 38 Smith vs. Brown, 353, 643, 734 Smith vs. Bradford, 532 Smith vs. Butcher, 732, 737, 748, 1235 Smith vs. Chilton, 241 Smith vs. Conner, 71 Smith vs. Cornelius, 58 Smith vs. Equitable Mortgage Co., 835 Smith's Ex'r vs. Washington City, Virginia Midland & Great South- ern Railroad Company, 362, 363 Smith vs. Evans, 230, 566, 906 Smith vs. Flint, 596 Smith vs. Grosjean, 150 Smith vs. Hackley, 779 Smith vs. Henkel, 401 Smith vs. Henline, 546, 547 Smith vs. Hunt, 794 Smith vs. Hutchinson, 353, 354 Smith vs. Jenny, 801 Smith vs. Knight, 349, 465 Smith vs. Life Association, 243, 1007 Smith vs. Lloyd, 254 Smith vs. Lowther, 227, 563 Smith vs. Marks, 308 Smith vs. McCourt, 115 Smith vs. McLain, 136, 226 Smith vs. McMillin, 373 Smith vs. Miller, 536 Smith vs. Nicholas, 387, 436 Smith vs. O'Keefe, 592 Smith vs. Osborne, 615 Smith vs. Parkersburg Co. Op. Ass'n, 794 Smith vs. Pattie, 353 Smith vs. Patton, 136, 596, 628 Smith vs. Posey, 804 Smith vs. Pritchett, 133e Smith vs. Profitt, 314, 391, 490, 495, 531 Smith vs. Rotan, 84 Smith vs. Sackett, 84 Smith vs. Smith, 81, 105, 118, 133c, 158, 322, 329, 378, 431, 487, 538, 539, 546, 601, 732, 870 Smith vs. State, 471 Smith vs. Stewart, 475 Smith vs. Sutton, 713 Smith vs. Thompson, 364 Smith vs. Tripplett, 31 Smith vs. Turley, 62, 452, 453, 52ii Smith vs. Walker, 375 Smith vs. Watson, 755 Smith vs. Werhle, 358 Smith vs. Weed Sewing Machine Co., 875 Smith vs. Wortham, 687 Smith & Wimsalt vs. Chilton, 21 Smith vs. Yoke, 552, 626, 648 Smith vs. Zumbro, 361 Smithson vs. Briggs, 13, 14, 890a Smyth vs. Sutton, 425 ' Snavely vs. Hardrader, 66, 130, 136a, 246, 248 Snichers vs. Dorsey, 653 Snider vs. Brown, 585 Snider vs. Snider, 607 Snodgrass vs. Caldwell, 539 Snodgrass vs. Knight, 536 Snodgrass vs. Wolf, 130 Snouffer vs. Hansbrough, 666, 667 Snow vs. Rich, 374 Snydam vs. Truesdale,' 515 Snyder vs. Botkin, 218 Snyder vs. Cabell, 84, 85, 87, 90 Snyder vs. Martin, 104, 455, 456, 457, 458, 511 Snyder vs. Grandstaflf, 135 Soberheimer vs. Wheeler, 747 Sommers vs. Allen, 764, 765, 766, 770, 785 Somerville vs. Somerville, 62, 584, 599 Somerville vs. Wimlish, 519 Sorrel vs. Proctor, 862 South Branch Ry. Co. vs. Long, 525 Southall vs. Exchange Bank, 253 Southall vs. Exchange Bank of Vir- ginia, 464 Southall vs. Farish, 550 Southard vs. Sutton, 71 South Bend Chilled-Plow Co. vs. George C. Cribb Co., 136a 1560 TABLE OF CASES. (References are to sections.) Southern Life Insurance & Trust Co. vs. Lanier, 84 Southern Railway Co. vs. Covena, 295 South Penn Oil Co. vs. Mclntyre, 816, 817, 819 Southern White Lead Co. vs. Haas, 507 Southworth vs. Van Pelt, 81 Spalding vs. Dodge, 874 Spangler vs. City of Cleveland, 718 Spang vs. Robinson, 358 Spangler vs. Snapp, 373 Spragur vs. Hall, 905 Sparks vs. Sparks, 482 Sparrow vs. Blount, 480 Spauldings vs. Robbins, 490 Speak vs. Ransom, 707 Speidel vs. Schlosser, 644 Spence vs. Repass, 500 Spencer vs. Jones, 706, 716 Spencer vs. McGonagle, 116 Spencer & Miller vs. Lee, 60 Spencer vs. Pt. Pleasant & Ohio R. Co., 956 Spencer vs. Van Duzen, 416, 417 Spengler vs. Snapp, 384 Sperry vs. Fanning, 755 Spicer vs. Earl, 906 Spilman vs. City of Parkersburg, 78, 953 Spofford vs. Manning, 269, 273 Spooner's Adm'r vs. Hilbish's Ex'r, 136 Spooner vs. Hilbish, 85, 136a Spoor vs. Tilson, 220, 425, 566, 585, 605 Spotts vs. Commonwealth, 374 Spotswood vs. Danbridge, 356 Spottswood vs. Price, 583 Sprague vs. -Haines, 14a Spragins vs. West Va. C. & P. Ry. Co.. 13, 890a Springston vs. Morris, 575, 680, 961 Sprinkle vs. Hayworth, 133p Squires vs. HydliflF, 906 Stackpole vs. Hancock, 510 Stafford vs. Brown, 406, 416, 417, 722 Stafford vs. Howlett, 177, 299 Stafford vs. Roof, 906 Stagg vs. Pomeroy, 489 Stainton vs. Carron Co., 1263 Stampers vs. Garnett, 364 Stanford vs. Stamford Horse R. Co., 73 Stansbury vs. Stansbury, 606 Stanton-Belmont Co. vs. Case, 25 Stanton vs. Embrey, 289 Stanley vs. Holliday, 116 Stanton vs. Hughes, 591 Staples vs. Turner, 717 Stark vs. Scott, 796, 1153, 1251 Starkey vs. Carter, 302 Starn vs. Fan, 36 State Bd. of Agri. vs. Citizens' Street R. Co., 914 State vs. Baltimore & O. R. Co., 376 State Bank vs. Blanchard, 211 State Bank of Neb. vs. Rohren, 1Z2 State Bank vs. Steen, 157 State vs. Black River Phosphate Co., 108 State vs. Bourne, 1272 State vs. Bowen, 600 State vs. Bridge Co., 726 State, Campbell, vs. King County Super. Ct., 2 State vs. Cunningham, vs. 374, 522 State_^ vs. Pavis, 723 State vs. Dupre, 29 State vs. Dwyer, 722 State vs. Eagan, 747 State vs. Engle, 857 State ex rel Weiss Vs. District Board, 522 State vs. Frew, 723 State vs. Forst, 471 State vs. Gibson, 723 State vs. Gilpin, 722 State vs. Goodrich. 519 State vs. Governor, 67 State vs. Hal!, 727 TAULE OF CASES. 15C1 (References are to sections.) State vs. Harness, 725, 726 State vs. Harper's Kerry Bridge Co., 720, 724, 834 State vs. Hirsch, 522 State vs. Holmes, 123 State vs. Irwin, 723, 724 State vs. Johnson, 702 State vs. Kaiser, 722 State vs. Knowles, 538 State vs. Lord, 96 State vs. Martin, 31, 253 State vs. Miller, 722 State vs. Moran, 767 State vs. Nashville Savings Bank, 322 State vs. Nutter, 378 State vs. Ohio Oil Co., 67 State vs. Port Royal, 839 State vs. Pureell, 392 State vs. Schweitzer, 538 State vs. Shank, 15 State vs. Sponaugle, 362, 370 State vs. Union National Bank, 731, 738 State vs. Vest, 961 State vs. Williams, 115 Staude vs. Keek, 136 Staunton Perpetual Building & L. Co.. vs. Haden, 15 Stearns vs. Beckham, 661 Stearns vs. Harman, 592 Stearns vs. Richmond Paper Mfg. Co., 462 Stebbins vs. Cowles, 157 Steed vs. Baker, 205 Steele vs. Aspy, 745, 746 Steel vs. Baker, 578 Steel vs. Harkness, 29, 261, 607, 771 Steelsmith vs. Fisher Oil Co., 67, 707, 955 Steenrod vs. Railroad Co., 76, 104, 130, 349, 559, 568, 575, 580, 886 Steere vs. Hoagland, 646 Steiner vs. Scholze, 343 Stephens vs. Bradley, 29 Stephens vs. Brown, 576 Stephenson vs. Tavenners, 323, 324, 655, 866 Stephenson vs. Stephenson, 344, 448 Steptoe vs. Flood, 667 Steptoe vs. Read, 482, 490, 607 Sterry vs. Arden, 200 Stevens vs. Brown, 781, 785 Stevens vs. Cooper, 508 Stevens et uls. vs. Davidson, 732, 738 Stevens vs. McCormick, 74. 612 Stewart vs. Conrad, 452 Stewart vs. Crane, 643 Stewart vs. Hood, 506 Stewart vs. Jackson, 60, 296, 317 Stewart vs. Ludwiek, 36 Stewart vs. Register, 507 Stewart vs. Railroad Co., 34 Stewart vs. Stewart, 25, 136, 210, 220, 350, 574, 579, 602, 646, 648, 650, 682 Stewart vs. Stone, 447 Stewart vs. Thornton, 58 Stiles vs. Laurel Fork Oil & Coal Co., 58, 353, 366, 594 Stimpson vs. Bishop, 362, 650, 671 Stimpson vs. Putman, 723 St. Lawrence Boom & Mfg. Co., vs. Holt, 574 St. Louis Per. Ins. Co. vs. Cohen, 804 St. Louis Life Ins. Co. vs. Alliance Mut. Life Ins. Co., 147 St. Louis & N. 0. R. Co. vs. Ma- comb, 560a St. Paul Trust Co. vs. Mintzer, 732 Stockton vs. Copeland, 374, 844 Stoff vs. McGinn, 376 Stokes vs. Mecken, 538 Stone vs. Anderson, 105 Stone vs. Merrill, 633 Stone vs. Nicholson, 622 Stone vs. Reed, 144 Stone vs. Tj'ree, 11 Stone vs. Wilson, 31 Stoneburger vs. Roller, 592 Stoney vs. Am. L. Ins. Co., 914 Stonington Sav. Bank vs. Davis, 627 1562 TABLE OF CASES. (References are io sections.) Store vs. Payne, 141 8toier vs. Harrison, 329 Story vs. Livingston, 36, 648 Story vs. Moon, 613 Stoun vs. Roberts, 841 Stout vs. Philippi Mfg. & Jl. Co., 5686, 677, 678, 690 Stout vs. Seabrook, 394 Stovall vs. Banks, 378 Stovall vs. Border Grange Bank, 86, 614 Stovall vs. MeCutcheon & Co., 122 Stone vs. Minter, 548 Stowell vs. Cole, 1263 Stowell vs. Pike, 81 Strader vs. Graham, 871 Strain vs. Fitzgerald, 548 Strange vs. Strange, 643 Stratham vs. Ferguson, 498, 528 Strang vs. Weir, 840 Straughan vs. Hallwood, 171, 327 Straw vs. Trustees, 870 Strayer vs. Grayson, 480 Strayer vs. Long, 597, 605, 634 Stribling vs. The Bank, 519 Stickler vs. Todd, 502 Stvingam vs. Parker, 471 Streissguth vs. Riegelman, 805 Strong vs. ' Clawsen, 75 Strothers vs. Mitchell, 593 Strong vs. Meachem, 871 Strother's Adm'r vs. Mitchell et al, 57 Strudwick vs. Broadnax, 506 Stuart vs. Flint, 108 Stuart's Heirs vs. Coalter, 1366 Stuart vs. Heiskell, 376 Stuart vs. Hendricks, 651 Stuart vs. White, 630, 638 Stubbs vs. Burwell, 480 Studholme vs. Hodgson, 870 Stucklager vs. Neel, 539 Stumph vs. Miller, 905 Sturdivant vs. Davis, 935 Sturm vs. Fleming, 17, 38, 97. 170, 218, 343, 572, 630, 892, 961 Stuyvestant vs. New York. 297 Svvann vs. Summers, 806 Sublett vs. Wood, 779, 781, 783, 784 Suokley vs. Rotchford, 913 SiR'ber vs. McClintie, 108 Siifl'olk vs. Green, 107a Sugg vs. Bernard, 862 Sullivan Electric Light and Power Co, vs Blue, 747 Sullivan vs. Phillips, 88 Sulphur Mines Co. vs. Thompson, 497 Summers vs. Allen, 227 Summers vs. Darne, 230, 493, 567 Sumner vs. Sumner, 861 Sullivan vs. Latimer, ^591 Supervisors vs. Durant, 848 Supreme Council vs. Nidelet, 856 Supreme S. 0. Iron Hall vs. Baker, 745, 747 Surber vs. McClintie, 311, 323 Sutphen vs. Fowler, 4, 869 Sutton vs. Burruss, 366 Sutton vs. Edwards, 362 Sutton vs. Gatewood, 316 Suihart vs. Marless, 86 Suydam vs. Johnson, 394 Swallow vs. Day, 515 Swann vs. Buck, 67 Swann vs. Thayer, 364 Swayze vs. Swayze, 394 Swearinger vs. Steers, 40 Swedish Evangelical Lutheran Church vs. Shivers, 302 Sweeney vs. Baker, 387 Sweetland vs. Porter, 40 Swift vs. Eckford, 136, 330 Swift vs. Stephens, 610 Swife vs. Yanoway, 14, 575 Swing vs. Bentley & Gerwig Fur- niture Co., 732 Switzer vs. Skiles, 133e Switzer vs. McCulloch, 302 Switzer vs. Noffsinger, 366, 453 Style vs. Laurel Fork Oil & Coal Co., 30, 35, 58 TABLE OF CASES. 1563 (References are to sections.) T. A. A. & M. M. Co. vs. Pa. Co., 945ci Tabb vs. Boyd, 856 Tabb vs. Cabell, 69, 441 Tabor vs. Lawrence, 581 Taft vs. Stoddard, 62 Taft vs. Stow, 133c Talbotton R. Co. vs. Gibson, 539 Talbot vs. Smith, 159 Talbott vs. Woodford, 306 Taliaferro vs. Foote, 610 lalley vs. Starke, 672, 819, 820, 1205 Tallmadge vs. Lovett, 560a Tally & Co. vs. Starke's Adm'r, etc., 678 Talmadge vs. Pell, 206 Talpin vs. Paige, 685 Tanfield vs. Irvine, 740 Tanner & D. Engine Co. vs. Hall, 767 Tappan vs. Evans, 514 Tappin vs. Pease, 794 Tarleton vs. Viets, 372 Tars vs. Ravencroft, 593 Tartar vs. Wilson, 376 Tate vs. Liggat, 786 Tate vs. Tate, 528 Tate vs. Vance, 191 Tateum vs. Ross, 133 Tatum vs. Ballard, 46, 584 Taul vs. Collinsworth, 871 Tavenner vs. Barrett, 76, 84, 130, 302, 578, 653 Taylor vs. Adams, 520 Taylor vs. Bruen, 159 Taylor vs. Canady. 751 Taylor vs. Cooper, 678 Taylor vs. Cox, 339, 464, 475, 562, 590 Taylor vs. Ficklin, 46 Taylor vs. Heming, 206 Taylor vs. Lord, 67 Taylor vs. Lovering, 14a Taylor vs. McDonald, 498 Taylor vs. Obee, 200 Taylor vs. Railroad Co., 15 Taylor vs. Robinson, 88 Taylor vs. Yarbrough, 376 Tazewell vs. Saunders, 36 Tazewell's Ex'r vs. Whittle's Adm'r, 353 Tazewell vs. Whittle, 353, 354, 435, 1060 Teal vs. Chancellor, 87 Teel vs. Yancey, 668, 681 Teel vs. Yost, 375 Templeman vs. Fauntleroy, 578 Templeman vs. Steptoe, 566 Tennant vs. Dunlop, 299, 324, 327 Tennent vs. Patton, 568a, 671 Terre Haute, etc., R. R. Co. vs. Baker, 805 Territt vs. Woodruff, 538 Terry vs. Coles, 680 Terry vs. Fitzgerald, 596, 713 Terry vs. Fontaine's Adm'r, 405 Terry vs. Jones, 138 Teschmacher vs. Lenz, 613 Teters vs. W. Va. Cent. & P. Ry. Co., 158, 410 Thatcher vs. Powell, 786 Thatcher vs. Thatcher, 861 Thayer vs. Dove, 29 Thayer vs. Mann, 363 The Avenue Sav. Bank vs. DimoeK, 345 The Bank of the Valley vs. The Bank of Berkeley, 13 The Court in Bofil vs. Fisher, 95 The Exchange Bank vs. Morrill, 46 The People vs. Wilson, 1274 Thielkel vs. Scott, 121 Thilmany vs. Paper Bag Co., 755 Third National Bank vs. National Bank, 463 Thomas vs. Bank, 687 Thomas vs. David.son, 629, fiSO Thomas vs. Farmers' National Bank, 596 Thomas vs. Gain, 322 Thomas vs. Harvie, 216 Thomas vs. Harvie's Heirs, 216 1564 TABLE OF CASES. (References are to sections.) Thomas vs. Jones, 21, 71 Thomas vs. Linn, 60 Thomas vs. Rowe, 429, 706 Thomas vs. Selman, 136, 530 Thomas vs. White, 69, 858, 871 Thompson vs. Brooke, 209, 210, 211, o68a Thompson vs. Carpenter, 582 Thompson vs. Catlett, 637, 644 Thompson vs. Clark, 138, 167, 440 Thompson vs. Clay, 490 I'nompsou vs. Difl'enderfer, 740, 742 Thompson vs. Edwards, 210 Thompson vs. Graham, 85 Thompson vs. Iron Co., 430 Thompson vs. Jackson, 550 Thompson vs. Kyle, 192 Thompson vs. Maxwell, 216 Thompson vs. Miss. Marine & F. Ins. Co., 475 Thompson vs. Monroe, 538 Thompson vs. Moxey, 109 Thompson vs. Railroad Co., 216 Thompson vs. Thompson, 375, 847 Thompson vs. Whitaker Iron Co., 123a, 156, 159, 162, 164, 299, 358, 301 Thompson vs. Richie, 675, 676 Thormachlen vs. Kneppel, 906 Thorn vs. Ingram, 680 Thorn vs. Sprouse, 357, 552 Thornton vs. Fairfax, 677 Thornton vs. Fitzhugh, 568, 568o Thornton vs. Gordon, 404, 706 Thornton vs. Thornton, 133c, 717 Throlkeld vs. Campbell, 687, 1209 Throckmorton vs. Throckmorton, 323, 343, 409, 431, 540 Thurston vs. Big Stone Gap Imp. Co., 197 Tiddy vs. Graves, 514 Tiernan vs. Minghini, 5686, 606 Tift vs. Keaton. 840 Tilden vs. Maslin, 628 Tillar vs. Cook, 613, 717 Tillinghast vs. Champlin, 343, 344, .■^45 Tillman vs. Heller, 541a Tilton vs Vail, 611 Timberlake vs. Cobbs, 447 Tingle vs. Brison, 774, 779, 1024 Tink vs. Rundle, 749 Tinkum vs. Purdy, 673 Tison vs. Tison, 69 Titchnell vs. Jackson, 578 Tittenson vs. Peat, 113 Titus vs. Scantling, 538 Tod vs. Baylor, 695 Todd vs. Gallego Mills Mfg. Co., 683 Todd vs. Gates, 765 Todd vs. Miller, 743 Toland vs. Sprague, 381 Toledo A. A. & N. M. P. Co. vs. Pennsylvania Co., 1214 Toll Bridge vs. Free Bridge, 716 Toledo, etc., R. Co. vs. Beddely, 482 Toledo Tie & Lumber Co. vs. Thomas, 276, 286, 388, 697 Tomlinson vs. Rubio, 122 Tomlinson vs. Ward, 745, 751 Tompkins vs. Anthon, 389, 393, 394 Tompkins vs. Burgess, 466 Tompkins vs. Fonda, 61 Tompkins vs. Mitchell, 361, 384. 433 Tompkins vs. Stephens, 659, 006 Tom vs. Brace, Clark Ch., 716 Tooker vs. Oakley, 85 Totten vs. Henry, 774 Torient Fre Engine Co. vs. City of Mobile, 125 Torrent vs. Hamilton, 136a Torrey vs. Shaw, 627 Totten vs. Nighbert, 33 Toulniin vs. Reid, 1263 Townsend vs. Brown, 831 Town vs. Needham, 441. 445 Town of Weston vs. Ralston, 370 Townes vs. Birchett, 381 Towner vs. Lucas, 311 Towns vs. Alford, 502 Tracewell vs. Boggs, 35. 130. 345. 420, 413. 629 Tracey vs. Shumate, 138, 575. 682, 685 Tracy vs. "Murray, 870 Tracy vs. Roberts, 818 TABLE OF GASES. 156£ (References are to sections.) Tracy vs. Tracy, 372, 573 Trader vs. Jarvis, 123a, 364 Trapnall vs. Burton, 304 Travelers' Ins. Co. vs. Redfield, 115 Travers vs. Waters, 858 Treadwell vs. Cordis, 618 Treat vs. Dwinel, 189 Trecothick vs. Austin, 46 Tremper vs. Brooks, 753 . Trevelyan vs. Loflt, 219, 228, 229, 460, 481, 639 Triebert vs. Burgess, 740 Trimble vs. Herrold, 680, 681, 682, 683, 685 Trimble vs. Trimble, 589, 602 Triplett vs. Allen, 893 Triplett vs. Lake, 350, 1226 Tioll vs. Carter, 133e Troth vs. Robertson, 378, 816 Trotter vs. Blocker, 869 Trotter vs. Erw.n, 363 Trotter vs. Mut. R. F. Ass'n. 69 Trotter vs. Nighbert, 323 Trousdale vs. Anderson, 366 Trowbridge vs. Stone, 362, 364 Truly vs. Lane, 1227 Trust Co. vs. Swan, 755 Trust & Fire Ins. Co. vs. Jenkins, 340, 341 Trust vs. Old, 66 Trustees of Emory and Henry Col- lege vs. Shoemaker College, 83 Trustees of Wadsworth Poor School vs. Bryson, 591 Tuberville vs. Long, 33 Tuck vs. Manning, 853 Tucker vs. Bradley, 775 Tucker vs. Frederick, 784 Tucker vs. Kenniston, 592 Tucker vs. Madden, 115 Tucker vs. Mooreland, 906 Tuley vs. Barton, 547 Tumlin vs. Vanhorne, 745 Tunstall's Adm'r vs. Withers, 362. 368, 528 Tunstall vs. Pollard's Adm'r. 800 Turk vs. Hevener, 136, 136a, 862 Turk vs. Skiles, 37, 70, 685 Turnbull vs. Clifton Coal Co., 491, 492, 575, 965 Turner vs. Berry, 217, 222 Turner vs. Dawson, 829 Turner vs. Dillard, 364 Turner vs. Knell, 440 Turner vs. Stewart, 424 Turpin vs. Thomas, 374 Tyler vs. Daniel, 133e Tyler vs. Toms, 669, 691 Tyres vs. Williams, 675 Tyson vs. Glaize, 570 U. Uhlman vs. Arnholt & Schaeffer Brewing Co., 513a Umbaj'ger vs. \A atts, 866 Underwood vs. McVeigh, 583 Underwood vs. Pack, 685 Underwood vs. Underwood, 59, 02, 117, 599 Underwood vs. Wood, 07 Union Bank vs. Geary, 441 Union Cent. L. Ins. Co. vs. Phillips, 615 Union Cent. L. Ins. Co. vs. Pollard, 519 Union National Bank vs. Jlatthew, 914 Union Pae. R. Co. vs. De Bu^5k, 29 Union Trust Co. vs. McClellan, 537 Unis vs. Charleton, 477, 480. 490 United States vs. Americnn Lum- ber Co., 11 United States Blowpire Co. vs. Spencer, 15, 32, 135, 369 United States vs. Gomez, 848 United States vs. Wagner, 'lOl University vs. Tucker, 81, 022 Updike vs. Lane, 363, 614 Upham vs. Brooks, 71 Urbanski vs. Manns. 350 Urmston vs. Evans, 2 Urton vs. Woolsey, 4 U. S. Baking Co. vs. Bachman, 704 1566 TABJ.E OF CASES. (Reterences are to sections.) U. S. Bank vs. Ritchie, 821 V. S. vs. Parker, 844 U. S. vs. Throckmorton, 123 Uttiea Ins. Co. vs. Lynch, 402 Va. Coal & Iron Co. vs. Kelly, 668 Va. Fire and Marine Ins. Co. vs. Cottrell, 677, 680, 688 Vaiden vs. Stubblefield, 96, 302 Vail vs. Aikell, 202 Vance vs. Evans, 46, 205, 578 Vance vs. Kirk, 60, 583 Vance vs. McLaughlin, 800 Vance Shoe Co. vs. Haught, 105, 120, 121. 573, 584, 624 Vance vs. Snyder, 241, 472 Vandervere vs. Reading, 343, 346, 347 Vandiever vs. Pollack, 57 Vandusen vs. Schrader, 863 Vandiver vs. Roberts, 14 Van Dorn vs. Levels County, 299, 310 Van Dorn vs. Lewis County Court. 376 Van Epp vs. Van Deusen, 326 Van Franklin vs. Roberts, 857 Van Oilder vs. Hoffman. 660, 661, 663, 1220 Van Gorder vs. Hanna. 71 Van Hook vs. Throckmorton, 180 Van Hook vs. Whitlock, 353, 435 Vijnibibber vs. Beirne, 367, 450, 45L Van Kleek vs. Reformed Dutch Church, 163 Vanmetre vs. Vanmetre, 210, 220, 568a Vann vs. Hargett, 39 Vann vs. Barnett, 740 Vanness vs. Jacobs, 618 Vann vs. Newsora, 856 Van.sandau vs. Rose, 722 Vanscoy vs. Stinchcomb, 49S. 499 531 Van Sickle vs. Gibson, 490 Van Voorhis vs. Van Voorhis, 43] Van VN'inkle vs. Blackford, 366 Van Wuck vs. Alliger, 81 Varian vs. New England Mut. Ace. Ass'n, 805 Variek vs. Smith, 85 Vashon vs. Barrett, 340, 356, 361, 371 Va., Tenn.' & Car Steel Co. vs. Wil- der, 740 Vathir vs. Zane, 439 Vaughan vs. Green, 82 Vaughn vs. Garland, 169 Vaughan vs. Jones, 816, 828 Vaughn vs. Vaughn, 622 Vaughn vs. Wilson, 189 Vaught vs. Cain, 130 Vaught vs. Rider, 339. 708 Vegelahn vs. Guntner, 958 Veile vs. Blodgett, 404 Vere vs. Glynn, 332 Vermilyea vs. Fulton Bank, 158, 410 Verilyea vs. Odell, 340 Vermilye vs. Vermilye, 118 Verplanck vs. Insurance Co., 740, 745, 753 Verplank vs. Caines, 294, 297 Verplank vs. Mercantile Ins. Co., 106, 327, 334, 335, 340 Village of Pine City vs. iluncb, 73 Vilwig vs. B. & O. Railroad Co., 133c V^inal vs. Core & Compton, 1, 5, 10 Vinal vs. Gilman, 539 Virginia Coal & Iron Co. vs. Kelly, .")92 Virginia Min. Imp. Co. vs. Hoover, 368 Vawter vs. Gilliland, 399 Vleet vs. Sherwood, 332 Voight vs. Roley, 365 I'^nlmer vs. McCauley, il2 Voorhees vs. Voorhees, 906 Voshell vs. Heaton, 740 VoshcU vs Hynson, 740 TABLE OF CASES. 1567 (References are to sections.) Voss vs Kingj 525 Vowless vs. Buckraan, 818 Vreeland vs. Stone Co., 850 W. Wabash R. Co. vs. Dykeman, 740 Waehler vs. Albee, 366 Wade vs. Hancock, 571, 583 Wade vs. Kalbfleisch, 358 Wade vs. King, 507 Wade vs. Saunders, 673 Wadsworth vs. Wadsworth, 44 Waffle vs. Vanderheyder, 710 Wager vs. Barbour, 528 Wagner vs. Coen, 744 Wagner vs. Wagner, 861 Wagon vs. Pease, 133a Wagon Co. vs. Peterson, 15, 806, 863 Wakeman vs. Grover, 439 Walker vs. Burgess, 354 Walker vs. Byers, 447 Walker vs. Converse, 105 Walker vs. Day, 961 Walker vs. Douglass, 339 Walker vs. Gibson, 739 Walker vs. Grayson, 480, 579 Walker vs. Page, 51 Walker vs. Snowdon, 871 Walker vs. State, 469 U'alkei vs. Summers, 596 Walker vs. Turner. 29 Walker vs. Walker, 81, 332, 538 Walker vs. Wallace, 863 Wall vs. Atwell. 253 Wall vs. Hill, 119 Wallace vs. Maroney, 793 Wallace vs. Sheldon. 870 Wallace's Super, vs. Lewis, 906 Wallops vs. Scarburgh, 833 Walter vs. Bollman, 539 Walter vs. Chichester, 227 Walters vs. Farmers' Bank of, Vir- ginia, 86 Walters vs. Hill, 617 Walthall's Ex'rs vs. Rives. 109 Walton vs. Chair Co., 399 Walton vs. Coulson^ 823 Walton vs. Gaines, 906 Walton vs. Walton, 622 Walts vs. Nichols, 778 Walraven vs. Locke, 133e Walsby vs. Anley, 958 Walsh vs. Durkin, 289 Walsh vs. Schilling, 367 Walsh vs. Smyth, 335 VVandling vs. Straw, 374 Ward vs. Cornett, 167, 439, 440 Ward vs. Dunliven, 123 Ward vs. Ely, 490 Ward vs. Funsten, 84 Ward vs. Janney, 116 Ward vs. Kent, 211 Ward vs. Patton, 336 ^ Ward vs. Petrie, 753 Ward vs. Laferty, 906 Ward vs. The Duke of Northumber- land and the Earl of Beverly, 84 Ward vs. Ward, 343, 413, 454, 637, 646, 648 Wardswortb vs. Miller, 775 Ware vs. Bankers' Loan & Invest- ment Co., 568 V\'are vs. Lamb, 660 Ware vs. Starkey, 627, 644, 653 Waring vs. Crane, 864 Waring vs. Fletcher, 783 Warner vs. Blakeman, 961 Warner vs. Warner, 431 Warren vs. Saunders, 12 Warren vs. Syme, 566, 714 Warren vs. ^Varren, 501 Wartemburg vs. Spiegel. 905 Warwick vs. Morvill, 1213 Warwick vs. Warwick, 500. 532 Washington City Sav. Bank vs. Thornton, 1.36, 136?) Washington 0. W. R. R. Co. vs. Casenove, 376 Washington vs. Parks. 728 Wass vs. Wass. 573 Waterman vs. Matteson, 81 Waters vs. Dnvall, 775 Watei-s vs. Gooeh. 119 Water Supply Co. vs. Root, 76 1568 TABLE OF CASES. (References are to sections.) Watkins vs. Carlton, 666 Watkius vs. Wortman, 53.3 Watrous vs. Cunningham, i539 Watson vs. Boswell, 859 Watson vs. Ferrell, 122 Watson vs. Godwin, 447 \^"atson vs. Hoy, 893, 1209 Watson vs. Palmer, 447 Watson vs. Watson, 376 Watson vs. Wigginton, 578, 205 Watson vs. Young, 028 Watterson vs. Miller, 598, 706, 951 Watts vs. Kinney, 590 Watts vs. Steele, 999 Wayland vs. Crank, 199, 425 Wayman vs. Jones, 1336 Waymire vs. Jetmore, 1162 Wayne Pike Co. vs. Hammons, 58, 738 Wray vs. Wray, 896, 905 Weatherby vs. Wood, 81 \^'eatherbee vs. Winchester, 165 Weaver vs. Carpenter, 906 Weaver vs. Fisher, 133 Webb vs. Pell; 211, 214, 216, 222, 447 Weber vs. Miek, 793 Webster vs. Couch, 696, 716 Webster vs. Peet, 81 Weed vs. Smull, 382 Wefley vs. Shenandoah Iron L. M. and M. Co., 550 ' Weidenbaugh vs. Reid, 354 Weider vs. Clark, 513a ^^■eigand vs. Alliance Supply Co., 594, 638. 641, 743, 912 Weimer vs. Rector, 75 ■\^■einberg vs. Rempe, 314, .598 Weinberg vs. Temple. 596 Woisman vs. Brighton, 862 Weisiger vs. Richmond Ice Mach. Co., 316 Welborn vs. Rogers, 447 Welch vs. County Court, 520 Welch vs. Fisk, 96 Wells vs. Ayres. 528 Wells vs. Bridgeport Hydraulic Co., 108 Wells vs. Commonwealth, 834 Wells vs. Cottam, 44 Wells vs. Hughes, 279, 564 Wells vs. Patton, 2 Wells vs. Sewell Point Guano Co., 136, 137 Wells-Stone Mercantile Co. vs. Truax, 375, 537 Wells vs. Strange, 895 Wells vs. Seixas, 906 Welker vs. Welker, 66 Wells vs. Wells, 82 Welsh vs. Arnett, 343, 344 Welsh vs. Solenberger, 357- 420, 430, 566, 580 Welton vs. Boggs, 354, 358 Welton vs. Hutton, 320, 322, 323, 324 Werninger vs. Wilson, 1218, 1222 Westbrook vs. Comstock, 811 Western & A. R. Co. vs. Morrison, 537 Western & A. K. Co. vs. Young. .5^1 Western Ins. Co. vs. Eagle Fire Ins. Co., 294 Western Lunatic Asylum vs. Miller, 205 Western M. & il. Co. vs. Va. Can- nel Coal Co., 170, 321, 379, 900 Western Reserve Bk. vs. Stuyker, 347 Western Union Tel. Co. vs. City of Richmond, 799 Western Union Tel. Co. vs. Petti- john, 564 Woston vs. Myers, 116 Westmoreland, etc.. Natural Gas Co. vs. De Witt, 81 West vs. Ferguson, 856 West vs. Reynolds. 100, 108 West vs. Shaw, 214 West vs. Swan. 745 West vs. Thornton, 364 West Va. Building Co. vs. Saucer, 661 West vs. Williams. 417 TABLE OF CASES. 1569 (References are to sections.) Wethered vs. Elliott, 211, 212, 220 Wetherill vs. McClaskey, 551, 583 Whaley vs. Dawson, 84 Wharton vs. Conger, 787 Wharton vs. East, 906 Wharton vs. Lowery, 322 Wharton vs. Stoutenburgh, 615 Wharton vs. Wharton, 118 Wheaton vs. Neville, 775 Whelan vs. Whelan, 108 Wheeling Gas Co. vs. City of Wheeling, 113 Wneeler vs. Steele, 701 Whieher vs. Whicher, 487. 502 Whipple vs. Gibson, 116 Whipple vs. Stevens, 502 White's Bank vs. Earthing, 85 White vs. Buloid, 206 White vs. Building Ass'n, 596 White vs. Carpenter, 233 White vs.-Chaney, 538 White vs. Clay, 703 White vs. Davis, 106 White vs. Depew, 627 White vs. Drew, 228, 653 White vs. Fitzhugh, 715 White vs. Ereeman, 605, 606 White vs. Heavner, 526 White vs. Johnson, 646 White vs. Knapp, 538 White vs. Mich. Bldg. Ass'n, 707 White vs. Ross, 545 White vs. Saunders, 229 White vs. Sydenstricker, 26, 31 White Sulphur Springs vs. Robin- son, 712 White vs. Thomas, 106 White vs. Turner, 344 White vs. Valley Bldg. & Investment Co., 568 White vs. White, 118, 897 White vs. Wiggins, 514 Whiting vs. Bank, 211, 216 Whiting vs. Gould, 133 Whittle & Co. vs. Bannister, 156 Whitaker vs. Dunn, 326 Whitbeck vs. Edgar, 197 Whitcomb vs. Whiting, 366 Whitecar vs. Michenor, 945a Whitehead vs. Bradley, 670 Whiteliead vs. Coleman, 763, 800 Whitloek vs. Duffield, 297 Whitloek vs. Gordon, 584 Whitloek vs. .Jolinson, 689 Whitemarsh vs. Campbell, 111 Whitelaw vs. Sims, 545 Whitelaw vs. Whitelaw, 547 Whitemarsh vs. Campbell, 340 Whiteside vs. Prendergast, 761 Whitney vs. Bcldeu, 323 Whitney vs. Mayo, 84 Whitney vs. McKinney, 46 Whitney vs. Kobbins, 404 Whitney vs. Union R. Co., 327 Whittaker vs. Whittaker, 4 Whitten vs. Saunders, 214, 215, 218, 221, 228 Wick vs. Dawson, 66a, 105, 156 Wigglsworth vs. Steers, 54 Wikel vs. Board of Com'rs, 519 Wilbur vs. Maxam, 83 Wilbur vs. Wilbur, 870 Wilcher vs. Robinson, 571, 575 Wilde vs. Jenkins, 184 Wilder vs. Keeler, 170 Wilder vs. Kelley, 696 Wiley vs. Mahood, 596, 598 Wilfong vs. Johnson, 46, 548 Wilhelm vs. Caylor, 558 Wilkins vs. Woodfin, 404, 445 Wilkinson vs. Dobbie, 397 Wilkinson vs. First Nat. Eire Ins. Co., 721 Wilkinson vs. Roper, 205 Wilkinson vs. Ward, 480 Willard vs. Cunningham, 47 Willett vs. Woodhams, 105 Williams vs. Blake, 660 Williams vs. Blakey, 677, 688, 690 Williams vs. Blunt, 871 Williams vs. Board of Education, 58 Williams vs. Carle, 206 Williams vs. Clark, 637, 653 Williams vs. Corwin, 580 1570 TABLE OF CASES. (References are to sections.) Williams vs. County Court, 39, 78, 322, 328 Williams vs. County Court of Grant Co., 954 VVilliama vs. Donaghe, 653 V\ illiams vs. Farrington, 159 Williams vs. Hamilton, 755 Williams vs. Jackson, 109 Williams vs. Jones, 273 Williams vs. Longfellow, 458 Williams vs. Maxwell, 364 Williams vs. Newman, 913 Williams vs. Lampkin, 720 Williams vs. Savage ilfg. Co., 343 Williamson vs. Applebury, 311 Williamson vs. Berry. 680 \\'illiamson vs. Bowie, 775 Williamson vs. Childers, 653 Williamson vs. Jones, 37, 59, 81, 95, 687, 702, 708, 850, 851 WilliaTHSon vs. Lebetter, 214 Williamson vs. Massie, 67 Williamson vs. Paxton, 289, 1276 Williamson vs. Williamson, " 364, 861, 1249 Williard vs. Worsham, 584 Willis vs. Dunn, 583 Willis vs. Evans, 335 Willis vs. Thompson, 121 Willis vs. Twambly, 906 Willis vs. Willis, 397, 564 Wills vs. Dunn, 633 Wills vs. Slade, 95 Wilmot vs. Maccabe, 157 Wilner vs. Wilner, 170, 171 Wilson vs. Bird, 49 Wilson vs. Buekman, 673 Wilson vs. Carpenter, .541 Wilson vs. Carrico, 561, 628, 635 Wilson vs. Harper, 358, 361, 365 Wilson vs. Hastings, 818 Wilson vs. Holt, 818 Wilson vs. Hundley, 904 Wilson vs. Kiesel, 36 Wilson vs. Kocklein, 466 Wilson vs. Maddox, 11, 13, 105, 402, 746, 747, 1102 Wilson vs. Moriarty, 115 Wilson v.s. Morris, 115 Wilson vs. Perrine, 111 Wilson vs. Perry, 022 Wilson vs. Phoenix Powder Co., 519 Wilson vs. Smith, 183, 184, 190, 490 Wilson vs. Spear, 65 Wilson vs. Weber, 165 Wilson vs. Welch, 751 Wilson vs. Wigginton, 582 Wilson vs. Wilson, 62, 69, 778 Wilson vs. Youst, 816, 819 Wilt vs. Huffman, 510, 511 Wimbish vs. Rawlins, 646 Winans vs. Winans, 55, 674, 908 Windon vs. Stewart, 645 Windon vs. Wolverton, 592 Windt vs. Banniza, 778 Winn vs. Heidenburner. 89 Winifrede Coal Co. vs. Board of Education, 78 Wingo vs. Purdy, 47, 784, 785 Winn vs. Newman, 611 Winslow vs. Nayson, 722 Winston vs. Campbell, 344 Winston vs. Johnston, 220, 634 Winter vs. Hite. 755 Winton vs. Midlothian Coal Min- ing Co., 697 Winter vs. McMillan, 199 Wise vs. Lamb, 438, 659. 660, 70b Wise vs. Postlewait, 481 Wise vs. Williams, 874 Wiser vs. Blaehly, 221, 225, 229 Wissler vs. Craig, 364 Wiswell vs. Baxter, 353 Wiswell vs. Sampson. 749 Witcher vs. Robertson. 374 Withers vs. Fuller, 808 Withers vs. Sims, 86, 136, 136a, 376 622 Witt vs. Huffman, 456 Witten vs. St. Clair, 21 Witters vs. Chicago Globe Sav. Bank, 778 W. M. & M. Co. vs. Va. C. C. Co., 374 TABLE OF CASES. 1571 (ReferenciiS are to sections.) Wohlford vs. Compton, 844 Wolcott vs. Patterson, 861 Woleott vs. Robbins, 900 Wolf vs. McGugan, 713, 939 Wolf vs. Wolf, 157 Wolverton vs. Taylor Co., 38 Womack vs. Glasgow, 614, 694 Women's Catholic Order vs. Huley, 295 Woman's Union Missionary Soc. vs. Mead, 870 Wood vs. Crebbs, 671 Wood vs. Harmison, 230, 558, 568, 568(1. Wood vs. McFerrin, 415 Wood vs. Stepiienson, 868 Wood vs. Vandenburgh, 870 Wood vs. Wood, 44, 118, 120, 133, 133b, 211, 431, 732, 861 Wooding vs. Bradley, 648 Woodell vs. W. Va. Imp. Co., 277, 283 Woods vs. Douglass, 424 Woods vs. Ellis, 299 Woods vs. ]5"isher, 105, 133 Woods vs. Hughes, 199 Woods vs. Morrill, 404 Woods vs. Woods, 44 Woodcock vs. Bennett, 440 Woodell vs. W. Va. Imp. Co., 390 Woodgate vs. Fleet, 133 Woodhouse vs. Fillbates, 571 Woodman vs. Coolbroth, 502 Woodruff vs. Cook, 384 Woodruff vs. Douglass, 227 Woodruff vs. Young, 1366 Woodson vs. Leyburn, 228 Woodward vs. Williamson, 344 Woodward vs. Wood, 71 \^'oodyard vs. Bluffington, 69 Woodyard vs. Polsley, 353, 354, 639, 646, 648 Woodyard, Receiver, vs. Polsley, 62 Woolman vs. Hearn, 434 Woolenslagen vs. Runals, 507 Woolf vs. City Steamboat Co., 875 Wordsworth vs. Miller, 31 Worham vs. Hardway, 687 Worrall vs. Munn, 61.3 Worten vs. Smith, 850 Worthington vs. Collins, .jDl Worthington vs. Duncan, 81.S Worthington vs. Lee, 268 Worthington vs. Staunton, 2:;.j, .jT.j Worthington vs. Waring, 85, 958 Worthy vs. Johnson, 69 Wotten vs. Copeland, 74 Wray vs. Da\enport, 703 Wright vs. Frank, 323, 330 Wright vs. Germain, 900 Wright vs. Hicks, 108 Wright vs. King, 157 Wright vs. Miller, 581 Wright vs. Ranibo, 783, 784 Wright vs. I^eclaire, 568a Wright vs. Smith, 532 Wright vs. Strother, 349 Wright vs. Wright, 106, 119 Wroten vs. Armat, 211 W. Va., 0. & L. Co. vs. Vinal, 191, 193, 196, 198, 201, 205, 586, 587, 1234 Wyatt vs. Simpson, 84a Wyatt vs. Thompson, 343, 461, 553, 554, 555, 562, 644 Wych vs. Meal, 410 'Wyckoff vs. Wyckoff, 870 Wytheville Crystal Ice and Dairy Co. vs. Friek Co., 447 Wytheville Ins. Co. vs. Stultz, 18 Yallaly vs. Yallaly, US Yandel vs. Elam, 133 Yancey vs. Hopkins, 668, ^i02 Yancey vs. Mauch rt al., 677 Yates vs. Payne, 19 Yates vs.' Stewart, 578, 6.?6, 6"i3 Yates vs. Tisdale, 142 Yates vs. Town of West (J;.!''- 713, 956 Yates vs. Wilson, 209. 37Ci. r.GC Yeamans vs. James, 49 Yerby vs. Grigsley, 205 1572 TABLE OF CASES. (References are to sections.) York vs. Cartwright, 69 York vs. Roekwood, 121 Yost vs. Porter, 36, 671 Young vs. Edwards, 866 Young vs. Grundy, 510 Young vs. Hill, 233 Young vs. Mackall, 490 Young vs MeClung, 687, 865, 1209 Young vs. McKee, 514 Young vs. Miller, 482 Young vs. Ridenbaugh, 546 Young vs. Rollins, 747 Young vs. Scott, 294 Young vs. Warne, 66 Y'oung vs. Young, 776, 602 Youngblood vs. Schamp, 699 Yount vs. Yount, 905 Youse vs. Norcombs, 900 Z. Zabel vs. Nyenhruis, 339 Zaearius vs. Palotti, 381 Zane vs. Fink, 40, 133e, .520, 531 Zatelle vs. Myers, 133c Zeigler vs. Scott. 119a Zell Guano Co. vs. Heatherly, 35, 36, 105, 108, 109, 135, 254, 421 Zellerbach vs. AUenberg, 123 Zirkle vs. McCue, 74, 410 Zoellner vs. Zoellner, 181 ZoU & Dinsmore vs. Campbell, 157 INDEX. (References are to sectioris, Vol. I comprising Sees, i— 8io; Voi. II ill*, ^jsidue.) A ABANDONMENT — As ground of divorce, how alleged in bill, 118 Form of bill for divorce from the bonds of matrimony, on the ground of, 924 Form of bill for divorce a mensu et thoro because of, 929 Form of decree for divorce a mensa et thoro because of, where defend- ant has not appeared, 1186 Form of decree for divorce a mensa et thoro because of, where de- fendant has appeared, 1187 Form of decree for divorce a vinculo matrimonii because of, after former divorce o mensa et thoro, 1190 ABATEMENT — Amendment of process after plea in, 28 Costs with reference to pleas in, 858 Forms of — controverting the existence of the grounds upon which an order of attachment was issued, 1024 of decree striking plea in abatement from the record, 1135 of order setting plea down for argument, 1136 of order holding plea in abatement insufficient upon argument, 1137 of the pendency of another suit. 1023 of want of pi-oper parties. 1020 on the ground of the plaintiff's infancy, 1021 on the ground of plaintiff's insanity. 1022 to the jurisdiction of the court, 1018 to the jurisdiction of the court — another form. 1019 In matter of as to purchase money or otherwise, 41 Of attachment, effect upon the suit, 785 Of suit, right to sue within one year thereafter, 369 Of suit so as to make use of bill of revivor necessary or proper, 181, 182 Plea in abatement of attachment, how tried, 057. 782 Plea in abatement of an attachment, 781 Plea in abatement in attachment, when must be used. 781 Plea in abatement of attachment, burden of proof on trial of issue on, 783 Plea in abatement of attachment, evidence on trial of issue on, 784 Plea in, character of in a court of equity, 276 Plea in, definition and purpose of, 266 Plea in — as to infancy, idiocy or lunacy, and persons of weak minds, when may be used, 285 aliens, when may be filed as to, 286 as to want of proper parties, 291 1573 1574 INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) ABATEMENT— Continued. Plea in — certainty and strictness required in, 277 character or right in which plaintiff sues, when may be used as to, 287 classification of, 282 filed, in bar and in abatement at the same time, 280 filed, time within which must be, 279 must give defendant a better writ, 278 name, in whose suit should be revived, 183 of suit and its effect, 181 of the pendency of another suit, 28!) of the pendency of another suit, cases wherein may be filed, 280 of the pendency of another suit, cases wherein may not be filed, 289, 290 puis darein continuance, plea of, 281 revived, how suit may be, 184 revivor by motion, 190 revivor by scire facias, 189 revived, by whom suit should be, 183 striking out or withdrawal of, 293a suit abates when so as to make revivor necessary, 182 that proceeding would cause multiplicity of suits, 292 that bill is multifarious, 293 to jurisdiction and its requisites, 283 to jurisdiction, when need' not be filed, 284 to the person, 285 to bill, 288 ABODE — Form of sheriff's return showing service at usual place of — No. 59, 890 Meaning of the phrase " usual place of abode." 14 Service of summons upon member of fajiiily at usual place of. 14 What words equivalent to " usual place of abode." 14 When officer's return to summons must show that it was served at usual place of, 14 ABSENCE — From home of a party for seven years or more, raises presumption of his death, when. 538 From the State relieves from the bar of the statute of limitations, when, 367 Of counsel, as ground of continuance, 471 ACCEPTANCE — Corporation may be proceeded against by order of publication when no person appointed to accept service of process, 18 Form of affidavit authorizing an order of publication against corpora- ation for failure to comply with certain requirements of stat- ute, 1280 Of service of process, 16 Of service of process, by whom to be valid, 10 Of service of process, effect of, 16 ACCOUNT— Adjournment of the taking of an account, 636 Commissioner's notice of the time and place of taking the account, 634 Character and extent of commissioners' notice to take an account. 634 Commissioner's report of his account. 640-642 Essential allegations of the bill in matters of. 112 Essential allegations of hill to surcharge and falsify accounts of fiduciaries. 132 Facts found hy commissioner in taking his account, effect of, 650, 651 INDEX. 1575 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) ACCOUNT —Gontinued. Forms — form of answer where an account of rents or moneys is required to be set forth by several defendants, 1052 of answer making reference to books containing accounts, 1053 of answer refusing accounts as being useless before decree, 1054 of answer making claim of settled accounts, 1057 of bill for of partnership dealings, 895 of bill for partition and account, 968 of bill to surcharge and falsify accounts of personal representa- tive, 973 of bill by trustee, for advice of the court and for an auditing of his accounts, 979 of order referring cause to commissioner for an account in suit against estate of decedent, 1138 of order referring cause to commissioner for an account in suit to enforce judgment liens, 1139 of order referring cause to commissioner for an acount in suit to surcharge and falsify settlement of fiduciary, 1140 of order of reference for settlement of executorial and adminis- tration accounts, 1199 of notice of taking by commissioner in chancery, 1116 of report of commissioner in chancery upon reference for, 1117 of report of coriimissioner to- surcharge and falsify settlement of accounts of fiduciary, 1126 plea of stated account, 1030 In settlement of partnership accounts reference to a commissioner to take usually matter of course, 629 Introduction cf evidence before the commissioner taking an account, 637. (538 Notice to lien holders before taking account in creditors' suit, 034 Order of reference in creditors' suit to take an account, effect of, 655 Parties to suit in the matters of, 42 Rights of parties before a commissioner taking an account as to establishment of claims. 639 Statement of the bill in must be definite and certain, 112 The decree in matters of. 588 The order referring the cause to a commissioner to take an account, 632 What must be alleged in the bill to show plaintiff's right to, 112 What the decree in matters of should provide, 588 What the order referring cause to a commissioner to take an account should contain, 632, 633 When cause should not be referred to commissioner to take an account. 628 When a cause should be referred to a commissioner to take an ac- count. 629 When reference of cause to commissioner to take an account discre- tionary with the coiu't, 630 ADJOURNMENT— Of judicial sale, may be by public outcry, 673 Of taking of account by commissioner, 636 Of the taking of depositions. 486 Of the taking of depositions, form of, 1279 ADDRESS — Or direction of bill in equity, 98 Or direction of bill in equity, forms of, 874 1576 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) ADMINISTRATORS — Cannot be garnisheed, 800 Foreign cannot sue, when, 62 Form of caption to bill where party plaintiff to suit — No. 8, 874 Form of introduction of bill in suit by — No. 25, 875 Forms — of bill by administrator of deceased legatee for payment of legacy, 957 of bill to surcharge and falsify accounts of. 973 of notice to creditors in suit to subject real estate of decedent to payment of his debts, 1110 of order referring cause to commissioner for an account in suit against estate of decedent, 1138 , of order referring cause to commissioner in suit to surcharge and falsify accounts of, 1140 of order of reference for settlement of executorial and administra- tion accounts, 1199 of order for distribution of personal estate by, 1202 of order or decree against, 1254 of plea in bar that plaintiff is not administrator as alleged be- cause supposed intestate is living, 1035 of report of commissioner in suit to surcharge and falsify settle- ment of accounts of, 1126 Injunction bond not required from, 702 When a necessary party defendant to a suit, 62 When may sue in his own name, 62 When should bring suit as the plaintiff therein, 62 ADMISSIONS — Admissions as evidence, two kinds, 509 Admissions by the answer, effect of, 513o, 514 Admissions made by the bill, effect of. 513 Admissions of defendant to affect co-defendant, 517 Admissions upon the record, what are, 509 Admissions upon agreement, 509 Allegations of answer in the nature of a cross-bill unreplied to admitted to be true, 510 Averments in the answer, admitted, when. 511 By infant cannot bin.d so as to affect his interests, 509 Facts admitted by the parties dispenses with the necessitv of proof, 509 Form of answer making, 1048 Form of answer Avhere defendant makes qualified, 1049 Infant cannot make so as to affect his interest, 509 In suits for divorce, 540 Reading the pleadings at the hearing to show admissions therein, 516 Relieving hxira improvident admissions made in an answer, 515 Unanswered allegations of the bill admitted to be true, 510 Unanswered allegations of bill in Virginia, when not admitted to be true, 510 Unanswered allegations in an answer admitted to be true, when, 511 What matters are admitted by demurrer. 295 ADULTERY— As ground for divorce, how charged in the bill, 118 Forms — of answer to bill for divorce because of. setting up recrimina- tion, 1070 of answer to bill for divorce because of, setting up condona- tion, 1069 INDEX. 1577 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) ADULTERY — Continued. Forms — of bill to obtain divorce because of, and for alimony and an injunction, 920 of decree for divorce a vinculo matrimonii because of and award- ing custody of children, 1188 of decree for divorce o vinculo matrimonii and for alimony, 1189 of decree for divorce because of, granted in answer in nature of cross-bill, setting up claim to affirmative relief, 1191 AFFIDAVITS — Affidavits upon motion to dissolve an injunction, may be used when, 850, 851 Amendment of bill verified by, 330 Answer to bill in equity, when must be verified by, 409, 410 Bill for the appointment of a receiver to be verified by, 742 Bill for injunction must be verified by, when, 699 Bill in equity, when must be verified by, 107a Bill of review, must be verified by, when, 218 Bills de bene esse must be verified bj', ir)4 Bills to perpetuate testimony must be verified by, 149 Corporation, answer of, verification of by, 410 Definition of affidavit, 849 Disclaimer must be verified by, when, 270 Exhibits filed with pleadings, genuineness of must be denied by, 138, 437, 452 Facts relied on to show existence of ground of attachment, how al- leged in affidavit and the character thereof, 765 For an attachment, 764-707 For an attachment essential to courts jurisdiction, when, 764 For attachment, amendment of as to clerical errors, 767 For attachment, can not be amended, when, 764 For attachment, before what officer may be made, 768 For attachment, by whom may be made, 769 For attachment, what must contain in West Virginia, 764 For attachment, what must contain in Virginia. 764 For atta,chment, what sufficient affida\it in West Virginia, 765 For attachment, what sufficient affidavit in Virginia. 765 For attachment, what omissions in deemed fatal, 770 For attachment, when may be made, 771 Forms of — authorizing an order of publication against corporation for failure to comply with certain requirements of statute, 1280 by poor person to relieve from giving security for costs, 1095 for an attachment in Virginia for specific personal" property, 1090 for an attachment in West Virginia. 1087 f-or an attachment in a suit in Virginia to recover a debt or dam- ages for the breach of a contract, 1091 for a continuance. 1092 of non-residence of witness that his deposition may be taken. 1093 of non-residence of defendant for the purpose of an order of publication, 1093a of default to file an answer with a view to compel the filing thereof. 1096 to a bill of or answer to an injunction in West Virginia when verified by a person other than the plaintiff, 1081 to a bill in chancery in Virginia. 1082 to a bill for an injunction in Virginia. 1083 to a bill by a fiduciary in Virginia, 1084 to a bill of interpleader, 1086 1578 INDEX. (References are to sections, Vol. I comprising Sees. I— 8io; Vol. II the residue.) AFFIDAVITS — Continued. Forms of — to a bill on a lost instrument, 1088 to a bill of review on discovery of new matter, 1089 to an answer in Virginia, 1085 to any pleading in West Virginia made by a party suing in his own right, 1079 to any pleading by an administrator of other fiduciary in West Virginia, 1080 to be taken and subscribed by commissioners appointed to maJse partition, 1094 to require plaintiff to elect whether she will proceed in equity or at law, 1249 to the service of process or notice by a private person, 1097 General purpose for which used, 849 Guardian ad litem, when answer of need not be verified by, 409 Guardian ad litem, when answer of must be under oath, 410 Handwriting of person must be denied by, when, 452 Infant, when answer of must be verified by, 410 Interpleader, bill of must be verified by, 144 Lost instruments, bill in suit upon to be verified by, 12:1 Motion to dissolve an injvmction, when may not be used upon, 850 Officer before whom may be made, 412 Order of publication, affidavit to support, 19 Petition for sale of estate of infant or insane person must be verified by, 2.S5 Plea in abatement must always be verified by, 2S?i Supplemental for attachment in West Virginia, 766 Supplemental, when may be made and what must contain. 766 Use of on the application for the appointment of a receiver, 747 Waiver of to an answer, 409 AGENT— Generally not necessary party to suit, 42a When a proper party to a suit, 42a AGREED — Dismissal of bill agreed, effect of, 844 Order dismissing bill agreed, form of, 1275 ALIENS — May sue, when, 286 ALIMONY— Bill, form of in suit for, 896, 920 Decree for, forms of, 1187, 1189, 1193, 1194 Decree in suits for, 589 Decree or order for temporary, 589 Defendants, who necessary in suits for, 43 Order or decree for temporary can only be entered, when, 589 Suit for independent ground of equity jurisdiction (note 13), 896 Who may maintain suit for, 43 ALLEGATIONS — Admission of in bill, effect of, 458 All interrogatories called for in the bill must be predicated upon matters alleged therein, 104 Answer should not be indirect, uncertain or inferential. 404 Bill, matters which ought not to be alleged in. 109 Denial of allegations of injimction bill, how made by answer, 429 Essential allegations of the bill in certain cases, 112-134 Every fact essential to plaintiff's ease must be certainly and positively alleged, 108 Facts inferred from others distinctly alleged, when, 108 JNDEX. 1579 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) ALLEGATIONS — Continued, General denial of in bill, effect of, 406 Injunction not awarded on allegations made on information and belief, when, 108, 12:i Immaterial in bill not required to be answered, 404 Jurisdiction of court must be shown by distinct allegations in the bill, 108 Material contained in bill, omission to notice in the answer, effect of, 403 Next friend, when plaintiff' sues by, bill must allege that party -is so entitled to sue, 108 Of answer, when admitted to be true, 456 Of answer need not be replied to, when, 458 Right, title or claim of plaintiff should be distinctly alleged, 108 Specific in bill when not admitted or denied by answer, effect of, 402, 403 Unanswered in bill admitted to be true, when, 403 Upon information and belief not sufficient, when, 108 ALTERNATIVE — Bill may be framed in the, 135 Commissioner in chancery may make report in the, when, 652 Prayer for relief in the, 105 AMENDED AND SUPPLEMENTAL BILLS — Amended bill, another form and one often used in practice, 989 Amended or supplemental bill, another form, 987 Amended or supplemental bill, a further form, 988 Amended or supplemental bill, form of, 986 Difference between, 170 Distinction between, no longer obtains, where, 170 File, leave of court necessary to, 173 Filed, when may be, 172 Order allowing bill to be amended after appearance and demurrer, form of, 1142 Order allowing bill to be amended after answer filed by the defendant, form of. 1143 Order allowing bill to be amended by adding new parties, and remand- ing cause to rules for that purpose. 1144 Order allowing bill 1o be amended to conform to the proofs and without prejudice to an injunction is.sued in the cause. 1145 Order amending bill before appearance by the defendant, form of, 1141 Supplemental, amendment in lieu of, 177 Supplemental bill, must be consistent with original, 171 Supplemental bill, consistent with original, when, 171 Supplemental, defenses to, 179 Supplemental, in the nature of a bill of review, 178 'Supplemental, in the nature of a bill of review, permission, to file, how obtaineO, 178 Supplemental, original bill in the nature of, 180 Supplemental, original bill in the natui'e of, when proper, 180 Supplemental, parties to, 170 Supplemental, requisites of. 175 Supplemental, to file, how leave obtained. 174 The amendment to a bill, form of, 990 AMENDED ANSWER — Form of, 1073 Form of after exceptions sustained to the original. 1074 How amendments to an answer are made, 347 How application to amend answer may be made. 340 Illustrations of court's refusal to permit answer to be amended, 345 1580 ' INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) AMENDED ANSWER — Continued. When court will allow answer to be amended, 343 Illustrations of defendant's right to amend his answer, 344 AMENDMENT— Allowed when substantial justice will be promoted, 321 Amended bill, as to filing thereof in the clerk's office in vacation, 333 Amended bill, when process should issue on, 338 Amendment made without leave of court, effect of, 320 Amendment of bill when not pennitted, instances of, 323 Answer, application to amend, how made, 346 Answer, coujt's refusal to permit amendment of, illustrations of, 345 Answer, how amendment made to, 347 Answer, right to amend, 343 Answer, right to amend, illustrations of, 344 Answer, to bill, after amendment, 322 Appearance, right to make before defendant's, 320 Appellate court, amendment after cause remanded from, 322 At what stage of the cause may be made, 320 Bill, amendment rendering demurrable, not allowed, 323 Bill, amendment to, when takes effect, 337 Bill, manner of making amendment to, 335 Bill, sworn, right to make amendment to, 330 Bill, Avhen court will not permit any amendment to be made to, 327 Consent decree, right to make amendment as to, 351 Continuance, effect of amendment upon the right to a, 339 Co-plaintiffs, adding by way of am.endment, 324 Court, discretion of as to amendment, 321 Decree, the right to make "amendment to, 349 Decree, as to clerical error in, right to make amendment as to, 350 Definition of, 310 Demurrer to bill, after amendment, 322 Denmirer to bill, after sustaining, right to make, 320 Depositions taken after amendment cannot be read, when, 322 Extent to which 1)ili may be amended, 323 Facts, statement of in the bill, right to amend as to, 326 Pacta, statement of in the bill, right of plaintiff to make, amendment as to, instances of. 326 Final decree, at any time before, amendment may be made, 322 Forms — amended answer, 1073 amended answer after exceptions sustained to the original, 1074 amended bill — another form., and one often used in practice, 389 amended or supplemental bill — a further form, 988 amendment of the bill, 990 of amended or supplemental bill, 986 of amended or supplemental bill — another form, 987 order allowing hill to be amended after appearance and de- murrer. 1142 order allowing bill to be amended after answer filed hv the de- fendant, 1143 order allowing bill to be amended by adding new parties, and remanding cause to rules for that purpose, 1144 order allowing bill to be amended to conform to the pixiofs and without prejudice to an injunction issued in the cause, 1145 order allowing the return on a summons to be amended. 1146 order allowing nn answer to be amended. 1147 order amending bill before appearance by the defendant, 1141 Hearinff, amendment made at. 322 Injunction bill, right to make amendment to, 331 INDEX. 1581 \ (References are to sections, Vol. I comprising Sees. 1—810; Vol. II the residue.) AJVIENDMENT — Continued. Injunction, effect upon, of amendment made to the bill, 332 Laches in asking leave to make amendment, 340 Leave to make amendment, how obtained, 334 New cause of suit, amendment cannot be made so as to introduce, illustrations of infraction of this rule, 328 New cause of suit, cannot make amendment so as to introduce, illus- trations showing no departure from this rule, 329 New cause of action, amendment not allowed so as to make, 323 New matter, when necessary to put in issue, amendment as to, 323 Objection to making an amendment, how made, 336 Parties, amendment of bill by transposition of, 324 Parties, amendment of bill by striking out unnecessary, 324 Parties, bill should not be dismissed for want of, when, 324 Parties, dismissal of bill as to, 324 Parties, new, when added, amendment of pleadings as to, 324 Parties, objection for want of, duty of plaintiff to amend bill, when, 324 Parties to bill, amendment as to, 323 Parties to the bill, extent of amendment as to, 324 Parties, substitution of new or additional by way of amendment, 324 Parties, suit on behalf of certain class of, amendment as to, 324 Plea, right to amend, 342 Plea, to bill after amendment, 322 Pleading anew, right of, after an amendment to the bill, 341 Prayer of bill, amendment as to, 323 Prayer of bill for relief, amendment as to, 325 Replications, as to, 343 Statements of the bill, amendment as to, 323 Suit prematurely brought, amendment as to, 323 To bill will be allowed at what stage of the cause, 322 AMENDMENT OF THE BILL — After made, right of defendant to plead anew, 341 Appearance, before, matter of right, 320 Appearance, after, when, 320 At what stage of cause may be made, 322 Clerk's office in vacation, filing amended bill in, 333 Continuance, effect upon right of when made. 339 Court, discretion of as to right to make, 321 Court, made without leave of, effect of. 320 Court will not permit to be made, when, 327 Extent to which may be made, 323 Forms — amended or supplemental bill, 986 amended or supplemental bill — another form, 987 amended or supplemental bill — a further form, 988 amended bill — another form and one often used in practice, 989 order amending bill before appearance by the defendant, 1141 order allowing bill to be amended after appearance and de- murrer, 1142 order allowing bill to be amended after answer filed by the de- fendant, 1143 order allowing bill to be amended by adding new parties, and re- manding cause to rules for that purpose, 1144 order allowing bill to be amended to conform to the proofs and without prejudice to an injunction issued in the cause, 1145 the amendment to a bill, 990 How leave to make obtained, 334 Illustrations of court's refusal to permit, 328 1582 INDEX. (References are to sections, \'oI. I comprising Sees. 1-810; Vol. II the residue.) AMENDMENT 01" THE BILL — Continued. Illustrations showing court's permission to make, 329 Injunction bill, right to make, 331 Injunction, effect upon when made, 332 Laches in asking leave to make, effect of, 340 Manner of making, 335 Must not depart from ground for relief relied on, 327 Objection to making, 336 Parties, how made with reference to, 324 Parties, with reference to, 324 Prayer for relief, with reference to, 325 Statement of facts, with reference to, 326 Sworn bill, right to make, 330 When takes effect, 337 AMENDMENT OF DECREE — After close of term at which entered, 349 Because of clerical error, 350 Consent decree cannot be amended, when, 351 During term at which entered, 349 Final decree, no can be made to, 349 Interlocutory" decree may be amended, when, 349 What is clerical error, 350 AMENDMENT OF PLEA — Plea in abatement cannot be amended, 342 Right of defendant to make, 342 AMENDMENT OF REPLICATION — Can be made, when, 348 ANNULMENT — Forms — bill for annulment of marriage on ground of duress, 897 bill for annulment of marriage on ground that defendant had former wife living at time of second marriage, 898 decree for annulment of marriage, 1162 Of marriage, parties to suit for, 44 Of marriage, plaintiff in suit for must sue by next friend, when. 44 Of marriage, defendant in suit for must appear by guardian at litem. when, 44 ANOTHER SUIT PENDING — Causes may be consolidated, when, 290 Forms — instrument making election to proceed in equity when action at law and suit in equity pending for same cause, 1277 of affidavit t<5 require plaintiff to elect whether she will proceed at law or in equity in one of two suits, 1249 order presenting affidavit and requiring plaintiff to elect whether she will proceed at law or in equity in one of two suits pending for the same cause. 1250 plea in abatement of, 1023 plea in bar because of to bill of discovery, 1036 Subject of plea in bar, when. 290 What necessary to sustain plea in abatement of, 289 When not subject of plea in abatement, 289 When one at law and the other in equity, course to be pursued, 289 When proper subject of plea in abatement, 289 ANSWER, THE — Account, answer in the matter of. 42G Admissions made by answer as to facts alleged in bill, effect of, 449 Affidavit to, sufficiency of, 412 INDEX. 1583 (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) ANSWER, THE — C'ontimted. Affidavit to, before whom made, 412 Affirmative relief, answer claiming essential requisites of, 424 Affirmative relief, must be prayed for, 424 Affirmative relief, answer claiming, parties to, 424 Affirmative relief, answer claiming, sufficiency of, how tested, 424 Affirmative relief, not obtainable by an ordinary answer, 423 Affii-mative relief, answer claiming is substitute for cross-bill, 423 Amended answer, when may be filed, 420 Argumentative, ajiswer must not be, 404 Bill, allegations of must be admitted or denied by the answer when, 402 Bankruptcy, discharge in, requisites of answer relying on, 427 Bill, allegations of not controverted by the answer, 403 Bill, allegations of admitted to be true, when not controverted by answer, when, 403 Bill, allegations of, when need not be answered, 404 Bill, as to failure to answer allegations in, 403 Bill, averments of, effect of general denial oc traverse of, 406 Caption of, 399 Caption of, different forms of, 399 Co-defendant, no relief against by means of ordinary answer, 423 Co-defendant, affirmative relief against, how obtained, 423 Component parts of, 398 Conclusion of, 407 Conclusion of, character and nature of, 407 Cross-bill, when an answer will be treated as a, 425 Defendant, effect of answer, by one of two or more, 405 Defendant, when must prove allegations of answer though they deny allegations of bill. 442 Defendant, when answer filed by one, not evidence for or against co- defendant, when, 447 Defense by means of, must relate to matteis of bill, 397 Defenses, inconsistent cannot be set up in, 397 Defenses, to what matters in the bill, designed as, 397 Defenses relied on in. must be germane to bill, 397 Definition and purpose of, 396 Distinct and categorical, answer should be, 402, 403, 404 Documents called for in bill, when must be produced with answer, 161, 404 Divorce, answer in matters of, 431 Effect of, in West Virginia, 443 Effect of, in Virainia, when oath to waived by bill, 444 Evidence necessary to establish allegations of bill when denied by, 445 Effect of answer when made by impropei- party, 446 Evidence, answer to be, must be responsive to the bill, 439 Evidence, answer to be, must be on personal knowledge, 441 Evidence, answer tO' be, must be responsive to the bill, illustrations of, 439 Evidence, effect of answer as, 438 Evidence, effect of answer, as with reference to disclosures made by I it, 440 Evidence, effect of answer as, in response to interrogatories, 440 Evidence, when answer does not constitute though positively denying allegations of the bill, 442 Exceptions, resrvations to the bill in the answer, 401(i Jixceptions. reservation of to the bill in answer, not necessary when, 401a Exceptions to, defined, and how taken, 414 1584 INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) ANSWER, THE — Continued. Exceptions to, must be specific, 414 Exceptions to, how disposed of, 415 Exceptions to, when and how passed on and by whom, 415 Exceptions to, care required in draft of, 415 Exceptions to, effect of sustaining, 415 Exceptions to, to bill of injunction filed in vacation, 415 Exceptions to, when will lie, 416 Exceptions to, when will be sustained, 417 Exceptions to, when filed course pursuable, 418 Exceptions to, waiver of right to make, 419 Exhibits filed with, their purpose and effect, 437 Filed, may be at any time before final decree, 420 Filed, may be, when, illustrations of, 420 Filed, must be at rules, when, 421 Filed, where may be, 421 Filed, when answer may be, 420 Filed, when need not be at rules, 421 Filing of, what is a suflBeient, 422 Forms — a formal general conclusion, 1061 u, short and usual form of an answer, 1065 accounts — reference to books containing them, 1053 accounts refused as being useless before decree, 1054 admission for the purpose of the suit, lO.'iS affidavit to in West Virginia by party suing in his own right, 1079 affida^ it to in West Virginia by administrator or other fiduciary, 1080 affida\'it to in Virginia, 1085 aifidavit to, to bill of injunction by person other than plaintiff in. West Virginia, 1081 amended answer after exceptions sustained to the original, 1074 an amended answer, 1073 averring fraud in procuring contract sought to be enforced, 1068 by one defendant, 1043 execptions to an answer for insufficiency, 1128 exceptions to an answer for impertinence and, scandal, 1120 in the nature of a cross-bill setting up claim to affirmative relief, 1067 joint and several, 1044 of an infant defendant by his guardian ad litem, 1063 of an infant to u. bill or petition to sell his estate as well also as of the guardian ad litem himself, 1064 of garnishee in attachment suit, 1072 of one of several defendants, 1045 order allowing answer to be amended, 1147 order adjudging answer insufficient and directing further answer to be filed, 1166 order filing answer and general replication thereto, 1167 order filing answer and noting exceptions thereto, 1 164 order referring cause to commissioner to expunge scandalous matters, II60 order tendering answer and asking leave to file the same, 1163 reference to schedule, 1056 setting up partition by u parol agreement to a suit for parti- tion, 1075 settled accounts — claim of, 1057 submission by trustee to act, lOfiS to an answer of one defendant, commencement of, 1040 INDEX. 1585 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) ANSWER, TR-E — Continued. Forms — the usual conclusion, 1062 to a rule to show cause why a party should not be fined for contempt, 1274 to an answer of several defendants, commencement of, 1047 to a bill for an injunction to stay proceedings at law on a judg- ment drawn to illustrate the principle permitting all defenses in equity to be made by answer, 1000 to a bill for divorce setting up condonation, 1069 to a bill for divorce setting up recrimination, 1070 to a bill for divorce setting up claim to affirmative relief, 1071 where a schedule of deeds is required to be set forth in the answer, 1051 where an account of rents or moneys received or paid is required to be set forth by several defendants, 1052 where defendant admits a statement, 1048 where defendant believes a statement to f>e true, but qualifies his admission of it not knowing the same of his own knowl- edge, 1049 ■ where defendant is entirely ignorant with regard to the statement in the bill, 1050 where the defendant relies upon the statute of frauds, 1059 where the defendant relies upon the statute of limitations, 1060 Fraud, answer in the matter of, 428 Frauds, statute of, answer relying on, 434 Fraudulent conveyance, answer in the matter of, 430 Guardian ad litem, appointment of, 401 Indirect, uncertain or inferential answer should not be, 404 Infant, answer of, efi'ect of, 448 Infant, answer of must be by guardian ad litem, 400 Injunctions, answer in the matter of, 429 Interrogatories, when must be answered, 402 Joinder of defendants in, 400 Judicial notice, matters of which court takes need not be relied on in, 397 Limitations, statute of, answer relying on, 435 Must go to the entire bill, 402 Objection to, how taken, 413 Oath to answer of corporation, 410 Oath to, waiver of, 409 Oath to, of corporation, how obtained, 410 Oath, when answer must be under, 409, 410 Purchaser, a bona fide, answer in the matter of, 433 Res adjudicata, answer relying on, 432 Signing of, 408 Sufficiency of, how raised and determined, 413 The general nature of, 397 Traverse, general, what is in an answer, 406 Usury, in the matter of, 436 Verification of, by whom made, 411 APPEAL— Decree, when may be reveiwed by, 568, 568a Decree must be final to be made subject of, 568 Decree adjudicating principles of cause subject of, 568 Form of order of Circuit Court appointing receiver after an appeal to the Supreme Court of Appeals, and during pendency of case on appeal, 1284 What decrees final so as to be made subject of, 568a What orders and decrees in the cause reviewable upon from final decree, 568(i 15 so INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) APPEARANCE — Forms — of Older amending bill before, 1141 of order allowing bill to be amended after appearance and demur- rer, 1142 of decree for divorce a mensa et thoro where defendant has not appeared, 1186 of decree for divorce a mensa et thoro and for alimony where defendant has appeared, 1187 Process and its service, defect in when not waived by, 29 Process, defect in, when waived by, 33 Service of process, defect in, when not waived by, 33 Time allowed defendant after service of process to enter his ap- pearance, 35 To take advantage of defect in process or its service, 29 What constitutes so as to waive defect in process or service thereof, 33 APPOINTMENT— Forms — appointing receiver to sel' real estate, 1235 notice of application for of receiver — general form, 1102 notice of application for of receiver in partnership suit. 1104 of bill for of receiver in partnership matters, 895, 971 of notice of application for of receiver in suit to foreclose mort- gage, 1103 of order appointing commissioners to assign dower, 1195 of order appointing commissioners to make partition of real estate and directing manner of partition, 1231 of order appointing special commissioner to sell land, 1233 of order appointing receiver on cross-bill, 1234 order appointing receiver in vacation — general form, 1236 order appointing receiver after appeal, and during pendency of case on appeal, 1284 Of commissioners in chancery, how made. G27 Of guardian ad litem, how made. 401 Of receiver, in what cases made, 731, 732 Of receiver, principles applying to, 734-736 Of receiver in vacation, 737 Of receiver, how may be applied for, 738, 742 Of receiver, notice of application for, 740 Of receiver, upon whom notice of application for served, 741 Of receiver, requisite allegations of bill for. 745, 746 Of receiver, hearing of application for, 747 Of receiver, order appointing, 748 Of special commissioner, how made, 668 Who may be appointed receiver, 743 ARBITRATION AND A^VARD — Bill, essential allegations of in matters relating to, 113 Forms — entering up award as the decree of the court, 1171 order filing award of arbitrators, making allowances to them, and directing summons to show cause against said report, 1170 order granting pei'mission to guardian to submit matter to arbitration, 1168 order submitting cause to arbitration and making the same a rule of court. 1169 petition by guardian to submit matter to arbitration, 1000 Parties to suits relating to, 45 iNDJix. 1587 (References are to sections, Vol. I comprising Sees, j— 810; Vol. II the residue.) ASSIGNEE — When may sue, 46 When necessary party to suit, 46 ASSIGNOR — Necessary party to suit, when, 46 Necessary party to suit, when not, 46 ATTACHMENTS — Abatement of attachment operates to dismiss suit, when, 785 Affidavit for an attachment, 764-767 Aflida\-il for an attachment, when it may be made, 771 Affidavit for an attachment, before what officer may be made, 768 Affidavit for attachment essential to court's jurisdiction in, 764 Affidavit for attachment, what must contain in West Virginia, 764 Affidavit for attachment, what must contain in Virginia, 764 Affidavit for attachment, what a sufficient in West Virginia. 76.5 Affidavit for attachment, what a sufficient in Virginia, 765 Affidavit for attachment, amendment of as to clerical errors and omissions, 767 Affidavit for attachment, cannot be amended, when, 764 Affidavit for attachment, by whom may be made. 769 ^ Affidavit for attachment, what omissions in deemed fatal, 770 Answer of a garnishee, 804, 805 Answer of a g-arnishee, how it should be framed and its requisites, 804, 805 Attachment case? of which equity has exclusive jurisdiction in West Virginia, 762 Attachment, le^'y and return thereof, 775 Bond, condition of for return of attached property, 787 Bond, condition of to satisfy judgment or decree, 787 Bond for release of pixjperty attached, to whom payable and the penalty, 788 Bond for release of attached property, where returned and filed, and when, 789 Bond in attachment suit, 774 Bond in attachment suit, when necessary, 774 Bond in attachment suit, penalty and condition of, 774 Bond in attachment suit, how may be excepted to, 774 Burden of proof on trial of issue on plea in abatement of attachment, 783 Care and custody of attached property, who has pending suit, 791 Concurrent remedy at law and in equity as to attachment, 763 Debt against garnishee, character of to authorize a decree against him, 806 Debt of garnishee to principal debtor must arise tipon contract in order to hold garnishee, 806 Defenses, that may be made to an attachment, 779 Evidence in trials of intervention before jury must be saved by bill of exceptions, 797 Evidence on the trial of an issue controverting grounds of an at- tachment, 784 Facts relied on to show existence of the grounds for an attachment, how alleged and character of, 765 Failure of the attachment or its abatement, effect of tipon the suit, 785 Forms — answer of garnishee in. 1072 affidavit for in West Virginia, 1087 affidavit for in Virginia for specific personal property, 1090 affidavit for in Virginia to recover a debt or damages for the breach of a contract, 1091 1588 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) ATTACHMENTS — Continued. Forms — bill in matters of — No. 78, 899 exceptions to delivery bond taken by officer levying, 1247 notice of motion to quash in Virginia in vacation, 1248 order against garnishee in an attachment suit, 1175 order confirming sale trader, 1161 order entering motion to quash an attachment and overruling the same, 1148 order entering motion to quash an attachment and sustaining said motion, 1149 order filing plea in abatement of an attachment, 1150 order filing petition of third party making claim to property attached, 1152 order finding against intervener in attachment suit, 1173 order for sale -of property attached vphen debt is not due, 1174 order for sale of specific personal property under in Virginia, 1151 order hearing cause on intervention and garnishment in, 1155 order making up issue on petition of intervention in, 115.3 order making up issue on plea in abatement in in West Virginia, 1154 order of sale of personal property on order of publication and, 1156 order of sale of real estate upon order of publication and, 1157 order of sale of real estate upon vrhere defendant has appeared, 1158 order of sale of personal estate upon where defendant has ap- peared, 1159 order of sale of property under that is perishable or expensive to keep, 1100 order overruling exceptions to attachment bond, 1176 order svistaining exceptions to attachment bond, 1177 order sustaining exceptions to forthcoming bond and requiring officer to obtain good bond. 1179 order to show cause why attachment should not issue for disobey- ing an injunction, 127.3 petition disputing validity of attachment by third party, 1006 plea in abatement controverting existence of grounds for, 1024 Garnishee, can be no decree against, when, 808 Garnishee, decree against, 810 Garnishee, defenses which he may make, 802 Garnishee, how party may be summoned as, 798 Garnishee may object to irregularities in attachment, when, 807 Garnishee necessary party in suit in equity in attachment, 801 Garnishee, no decree against until plaintiff has established his claim against debtor, 808 Garnishee, when decree may be rendered against, 810 Grounds of attachmenti in equity in West Virginia, 762 Interest and profits of attached property, to whom paid during pen- dency of suit, 790 Intervention in attachment proceedings to contest validity of attach- ment, 793 Issue in cases of intervention in attachment tried by a jury, when, 796 Lien created by attachment, n.'.ture and priority of, 809 Liens in attachment proceedings, as to priority of, 809 Lien of attachment removed when bond given to satisfy judgment or decree, 787 Levy of attachment should bp made promptly, 775 Levy of attachment, upon what property may be made, 776 INDEX. 1589 (References are to sections, Vol. I comprising Sees. 1—810; Vol. II the residue.) ATTACHMENTS — Oontinued. Levy of attachment essential to court's jurisdiction, 775 Mode of trial of intervenor's cause before jury, 797 Motion to quash an attachment, what reached by, 779 Motion to quash an attachment, when sustained, 779, 780 Objections to an attachment, when should he raised, 786 Order of attachment may be made, when, 773 Order of attachment, when retui-nable, 773 Order of or process in attachment in West Virginia, 773 Order of or process in attachment in Virginia, 773 Petition of intervener in attachment suit, 794 Petition of intervenor in attachment suit, character of and what it must show, 794 Petition of intervenor, matters arising upon, how tried, 795 Plea in abatement of an attachment, 781 Plea in abatement of an attachment, when must be used, 781 Plea in abatement of an attachment, how issue on tried, 782 Practice in equity as to attachments, 777 Process of garnishment, when returnable, 798 Proceedings upon the appearance of the garnishee, 803 ■ Return of the attached property to the defendant upon giving bond, when, 787 Several attachments may issue in the same suit, when, 773 Suit for attachment in equity in Virginia, grounds of, 762 Summons, endorsement of attachment upon in Virginia, 772 Summons, purpose of endorsement upon in Virginia, 772 Supplemental affidavit in West Virginia, 766 Supplemental affidavit, when may be made and what to contain, 766 Valid levy of attachment, how made, 775 Who may defend an attachment, 778 What matters on the record will operate to quash or abate an attach- ment, 780 Who may be garnisheed, 799, 800 Who may intervene in attachment proceedings to contest validity of, 793 When propertj^ attached is expensive to keep or perishable, may be sold, how and when, 792 ATTORNEY— Absence of as ground of continuance, 471 Bill should be signed by, when, 107 Party to suit, need not be, when, 42 When should be appointed guardian ad litem, 821 AWARD — Bill to set aside, frame and averments of, 113 Defendants to suit to set aside, 45 Forms — order filing award of arbitrators and making allowances to them, and directing summons to show cause against same, 1170 order entering up award as the decree of the covtrt, 1171 Who may sue to set aside, 45 What parties may join in suit to set aside, 45 BANK— Cash received by special commissioner making sale should be paid into, when, 692 BANKRUPTCY— Answer, requisite allegations of setting up a discharge in, 427 Discharge in, as a defense may be pleaded in bar, 377 1590 INDEX. (References are to sections, Vol. I comprising Sees. i-Sio; Vol. II the residue.) BANKRUPTCY — Cuntinued. Forms — plea of, 1040a How discharge in relied on as a defense, 427 What not necessary to allege in an answer setting up a discharge in, 427 BAR— Forms — plea of a will, 1031 plea of award, 1032 plea of bankruptcy, 1040a plea of dismissal of former suit for same matter, 1027 plea of judgment at law for same matter, 1028 plea of purchaser for valuable consideration without notice, 1033 plea of release, 1029 plea of stated account, 1030 plea of the statute of limitations, 1025 plea of the statute of frauds to a bill for specific performance, 1026 plea that plaintiff not adiministrator as alleged, because sup- posed intestate is living. 1035 plea to a bill of discovery that another suit is pending for the same discovery, 1036 plea that plaintiff has no interest in the lands, the title of which he seeks to discover, 1037 plea that the discovery would subject defendant to forfeiture, 1038 plea that diseoveiy would compel defendant to betray confidence as an attorney, 1039 plea to a bill of interpleader, 1034 plea to a bill of revivor, 1040 Plea in, adjudication of court other than one of law or equity, 377 Plea in, an award, 383 Plea in, any other statute, 373 Plea in, burden of proof -on, 394 Plea in, defendant purchaser for valuable consideration, 384 Plea in, definition and purpose of, 267 Plea in, distinction between and answer, 388 Plea in, essential requisites of, 387 Plea in, frame of, 390 Plea in, foi-mer decree, 376 Plea in, former judgment, 374 Plea in, former judgment of foreign state or country, 375 Pleas in, how classified, 352 Plea in, how issue on formed, 393 Plea in, how issue on tried, 395 Plea in, how suificiency of determined, 392 Plea, in, release, 380 Plea in, release of surety, 386 Plea in, stated acc-ount, 381 Plea in, settled account, 382 Plea in, statute of frauds, 372 Plea in, statute of limitations. 353 Plea in, statute of limitations of one of two or more defendants, 355 Plea in, when answer must accompany, 389 Plea in, when may be filed, 391 ' BELIEF— AlBdavit for an attachment made on, in what particulars, 765 Allegations of bill for injunction made on, when sufficient, 122 Pact alleged in bill on, when sufficient, 108 JNDEX. 1591 (.References are to sections, Vol. I comprising Sees. 1—810; Vol. II the residue.) BENEVOLENT OR EDUCATIONAL ASSOCIATION — Forms — petition to sell property of, 1003 Petition for the sale of property of, 250a Proceeding on petition for the sale of property bf, 2506 When court may order sale of property on petition for sale of property of, 250c BIDS — Commissioner at judicial sale cannot bid, 674 Enforee^nent of at judicial sale, how made, 677 How received at judicial sale, 675 Upset bid as ground of setting aside judicial sale, 684 Withdrawal or rejection of at judicial sales, 676 When made can not be retracted, when, 676 When accepted, should not be relinquished, 676 When bidder may substitute another in his stead, 676 BILL, THE — Account, essential allegations in the bill in matters of, 112 Address or direction of, when not required, 98 Allegations of in stating part of, what should be alleged in stating part, 108 Allegations which need not appear in, 109 Arbitration and award in matters of, essential allegations in, 113 Attachment, essential allegations in the bill in matters of, 114 Bills not original, how classified, 97 Bill of certiorari, what is, 97 Bill of interpleader, what is, 97 Bills in equity, how divided, 97 Bills not original, how defined, 97 Bills not original, purpose of, 97 Caption or introduction of, what is, 99 Cancellation of contracts, allegations in the bill in the matters of, 115 Character in which party sues must appear in, 108 Charging part of may be omitted, 102 Charging part of, object of, 102 Charging part of, what is, 102 Charging part of, when advisable to use, 102 Cloud upon titls to real estate, essential allegations in the bill in the matter of, 116 Confederating part of may be omitted, 101 Confederating part of, what is, 101 Creditors' bills, essential allegations in the bill in the matter of, 117 Divorce, essential allegations in the bill in the matter of, 118 Doing of equity on the part of the plaintiff, essential allegations in the bill in the matters of, 119o. Dower, essential allegations in the bill in the matter of assignment of, 119 Exhibits filed with, 138 Exhibits filed with, need not be set out fully, when, 138 Exhibits filed with must be set out fully, when, 138 Foreign laws and private acts, when must be averred in, 108 Form and structure of original bill for relief, 98 Forms — • a cross-bill, 992 a cross-bill in the nature of a plea puis darrein continuance, 992a , against an executor by legatees and administrator of a deceased legatee for the payment of their legacies and shares of the residuary personal estate, 957 1592 INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) BILL, THE — Continued. Forms — against guardian and his surety by ward, after attaining majority; for a settlement and final accounting, 942 amended ajid supplemental bill — another form, 987 amended bill — another form and one often used in practice, 989 amended or supplemental bill, 986 amended or supplemental bill — a further form, 988 bill of interpleader, 959 by a guardian to sell lands of an infant in West Virginia, 941 by-a trustee to obtain the advice of the court touching his duties and for an auditing of his accounts, 979 by committee of lunatic for sale of latter's lands, setting out specific bids, 1252 by guardian to lease infant's lands, 941a by guardian to sell lands of an infant in Virginia, 940 by surety to be subrogated to rights of creditor, 977 caption and address of — Nos. 1-16, 874 charging part of, 878 confederating part of, 877 for alimony without divorce, 896 for an account of partnership dealings, the appointment of a, receiver, and for an injunction, 895 for annulment of marriage on the gi-ound of duress, 897 for annulment of marriage on the ground that the .defendant had a former wife living at the time of the second marriage, 898 for contribution among co-sureties, 911 for divorce on the ground of impoteney, 921 for dower in an ordinary suit by a widow, 931 for dower by widow against alienee of former husband. 932 for dissolution of partnership because of defendant's misapplica- tion of funds to his own use, and for a receiver — short form, 971 for injunction against cutting timber pending an action of eject- ment, 945 for partition, 967 for partition and account, 968 for partition when some of the parties are unkno\^m. 969 for specific performance by vendor against vendee, 974 for specific performance by vendee against vendor, 975 for specific performance of parol agreement for sale of land where there has been a part performance, 976 for the cancellation of a liix deed as creating a cloud upon title to real estate, 901 for the cancellation or rescission of an instrument on the gi'ound ' of fraud, 904 for the cancellation of a written instrument on the gi'ound of undue influence, 905 for the cancellation of a written instrument on the ground of mental incapacity, 906 for the cancellation of a written instrument because of infancy, 907 for the cancellation of a written instrviment because of the fidu- ciary relationship of the parties, 908 for the cancellation of a written instrument because of drunken- ness, 909 for the dissolution of a corporation in a court of equity, 912 for the dissolution of ^^ partnership and for an injunction, 970 for the establishment and enforcement of a trust, 980 for the establishment of the boundaries to real estate in cases wherein they have become confused, 900 INDEX. 1593 (References are to sections, Vol. I comprising Sees. I— 8lo; Vol. II the residue.) BILL, THE — Continued. Forms — for the removal of a trustee because of misconduct in his manage- ment of the trust fund, for an injunction and for a re- ceiver, 978 for the rescission of a contract because the act is ultra vires, 914 for the foreclosure of a mortgage, 933 interrogatory part of, 880 introduction of — Nos. 17-33, 875 in a creditors' suit against the estate of a decedent, 913 in a creditors' suit enforcing judgment lien, 915 in a creditors' suit by an executor or administrator to subject the real estate of the decedent to the payment of his debts, 916 in attachment suit, 899 in a suit upon a lost instrument, 962 jurisdiction clause of, 879 of discovery merely, 918 of discovery in aid of defense at law, 919 of committee of insane person to sell such person's estate, 960 of injunction against closing right of way, 945o of injunction against laying gas pipe on the plaintiff's premises, 946 of injunction by mortgagee or cestui que trust against a mortga- gor or grantor in trust deed, inhibiting the latter from cut- ting timber on the mortgaged premises, 947 of injunction by receiver restraining interference with property in his possession, 948 of injunction to judgment at law, 944 of injunction to judgment at law on ground of after-discovered evidence, 945i) of rijvivor by the original complainant, against the executor of the original defendant who had answered the original bill before his death, 991 of review upon errors in law, 993 of review on discovery of new matter, 994 prayer for an answer, oath waived — injunction against pro- ceedings at law — declaration of trust — conveyance — No. 41, 881 prayer for an injunction — No. 42, 881 prayer for the production of papers, etc., — No. 43, 881 prayer of for relief — No. 39, 881 prayer of for relief — ^ another form — No. 40, 881 prayer of for process — No. 44, 881 premises or stating part of, 876 the amendment to a bill. 990 to cancel a deed carrying apparent title as creating a cloud upon the title of the plaintiff, 902 to cancel a contract of sale as creating cloud upon title to real estate, 903 to carry decree into execution, 910 to construe a will, 983 to enforce a laborers' lien against a corporation, 964 to enforce a mechanics' lien, 965 to enforce a vendor's lien, 966 to enjoin a municipal corporation from the creation of an illegal indebtedness, 953 to enjoin the erection of a nuisance, 949 to enjoin a nuisance by fouling o water course. 950 to enjoin the sale of property under a trust deed, 951 1594 INDEX. J (References are to sections, Vol. I comprising Sees, i— 8lo; Vol. II tlie residue.) BILL, THE — ConJtMMed. Forms — to enjoin a sale of property under a deed of trust to secure pay- iDent of money borrowed from building and loan associa- tion, 952 to have an instrument in the form of a deed declared to be a mortgage, 917 to impeach a decree on the ground of fraud, 961 to obtain a divorce from the bonds of matrimony on the ground of adultery and for alimony and an injunction, 9'20 to obtain a divorce a vinculo matrimonii because of penitentiary sentence, 922 to obtain a divorce from the bonds of matrimony because of con- viction of an infamous offense, 923 to obtain a divorce from the bonds of matrimony because of three years' desertion, 924 to obtain a divorce from the bonds of matrimony because of pregnancy at the time of marriage, 925 to obtain a divorce from the bonds of matrimony wflere the wife had been notoriously a prostitute before marriage, 926 to obtain a divorce a mensa et thoro for cruel treatment, 927 to obtain a divorce a mensa et thoro because of reasonable appre hension of bodily hurt, 928 to obtain a divorce a mensa et thoro because of abandonment or desertion, 929 to obtain a divorce a mensa et thoro because of ' "bitual drunken- ness, praying custody of children and an injunction, 930 to perpetuate testimony, 984 to recover back purchase money on a deficiency in the quantity of land sold. Abatement of purchase money — No. 72, 893 to recover back purchase money on deficiency of quantity of land sold — short form, 894 to restrain the collection of an illegal tax, 954 to restrain and inhibit the extraction of oil or gas from the lands of the plaintiff, 955 to restrain the taking of private property for public use without compensation, 956 to restrain and inhibit laborers -and members of labor organiza- tions from molesting or injuring the plaintiff in the conduct of his business, 958 to reform or correct o writing on the ground of mistake, 972 to surcharge and falsify the settlement of a personal representa- tive, 973 to set aside a fraudulent conveyance, 935 to set aside fraudulent conveyance by corporation made to secure some of its officers, 936 to set aside voluntary conveyance to the prejudice of the rights of creditors, 937 to set aside a fraudulent conveyance — short form, 938 to set aside a conveyance or transfer so far as the same creates a preference, 939 to set aside u will — general form, 981 to set aside a will on the ground of undue influence and mental incapacity, 982 to set up a lost will, 963 to take testimony de bryie esse, 985 Fraud, essential allegations in the bill in the matter of, 120 Fraudulent conveyances, essential allegations in the bill in suits to set aside, 121 INDEX. 1595 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) BILL, THE — Continued. Frame of bill in West Virginia may follow statute, 98 Impertinence in, objection to, how raised, 111 Impertinent matter, what is, 110 Impertinent matter, must not appear in, 110 Injunctions, essential allegations m the bill in the matters of, 122 Interrogatories in must be based upon proper allegation in, 104 Interrogatory part of, 104 Interrogatory part of, purpose of, 104 Interrogatory part of, may be general, when, 104 Interrogatory part of, when should be special, 104 Jurisdiction clause of, purpose of, 10.3 Jurisdiction in equity must appear in, 103 Jurisdiction clause of may be omitted, 103 Judgments and decrees, essentia] allegations in the bill in the mat- ter of the impeachment or setting aside of, 123 Laches, essential allegations in the bill in matters involving, ll'.ia Liens, in the matter of the enforcement of, 124 Lien, mechanics', in suit to enforce, essential allegations of the bill, 124 Lien, mortgage, in suit to foreclose, essential allegations of the bill, 124 Lien, vendor's, in suit to enforce, essential allegations of the bill, 124 Lost instrument, essential allegations of the bill in the matter of, 12.5 May be framed with a double aspect, when, 135 Multifarious, must not be, 136 Multifarious, when deemed, 136 Multifariousness in, when may be disregarded, 136 Multifariousness in, illustrations of, 136a Multifarious, when bill treated as, illustrations of, 1366 Multifariousness, defect of in bill, how reached, 137 Must be signed, how, 107 Must not be insufficient, uncertain or vague, 108 Mistake, essential allegations of the bill in the matter of, 126 Names of parties to be affected by, must show, 108 New trials, essential allegations of the bill in matters of, 127 Next friend, when filed by, what bill must show, 108 Origin and definition of. in equity, 96 Original bills, how classified, 97 Original bills praying relief, 97 Original bills not praying relief, how divided, 97 Original, what are, 97 Partition, essential allegations of the bill in the matter of, jl28 Partnership, essential allegations of the bill in matters of, 129 Plaintiff's title or claim must be set forth in, 108 Plaintiff, when in doubt as to kind of relief entitled to, how framed, 135 Prayer of, essential in, 105 Prayer of. for process, 106 Prayer of, for process, may be omitted, when, 106 Prayer of for relief, 105 Prayer of, may be general or special, 105 Prayer of, special, defined, 105 Prayer of, when must be special, 105 Premises or stating part of, 100 Premises or stating part of, what should contain, 100 Reformation and rescission of written instrument, essential allegations in the bill in matters of, 11.5 Scandalous matter, must not appear in, 110 Scandalous matter, what is, 110 Scandal in, objection to, how raised. Ill 15|)C INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) BILL, THE — Continued. Should contain special and general prayer, 105 Signing of, 107 Specific performance of contracts, essential allegations of the bill in the matter of, 130 Stockholders, essential allegations of the bill in suit by, on behalf of corporation, 131 Surcharging and falsifying accounts of fiduciaries, essential allegations of the bill in the matter of, 132 The usual and ordinary bill, what is, 97 Trustee, essential allegations of the bill in the matter of accounting by, 133c Trustees and their beneficiaries, essential allegations of the bill in the matter of controversies between, and with third parties, 133f Trusts and trustees, appointment of new trustee, essential allega- tions of the bill in the matter of, 133 Trusts and trustees, essential allegations of the bill in the matter of sale, mortgage or lease of trust property, 133o, 818 Trusts and trustees, essential allegations of the bill in the matter of the investment of trust funds, 1336 Trust funds, essential allegations of the bill in the matter of the removal of to another state or c-ountry, 133d Trusts, essential allegations of the bill in the matter of the establish- ment and enforcement of, 133e Trusts funds, essential allegations of the bill in the matter of the pursuit of, lS3g Uncertainty in, ways in which may arise, 100 Usury, in the matters of. 133/i Wills, in the matter of the contest of, 134 When for relief, may contain prayer for discovery, 105 What must appear on the face of, 108 When should be under oath, 107a When termed an information, 96 BILL DE BENE ESSE — By whom may be maintained, 152 Definition and nature of, 151 Essential allegations of, 154 Form of, 985 Statutory provision has superseded necessity of, 155 When maintainable, 153 BILL OF DISCOVERY— " Against whom and as to what disclosures it will lie. 158 Allegations, the necessary, of pure bill of discovery, 163 Allegations, the necessary, of mixed bill of discovery, 164 Answer, eflfect of, to a pure bill of discovery, 166 Answer, effect of, to a mi-^ed bill of discovery, 167 Answer to a pure bill of discovery, 165 Classification and definition of, 156 Documentary evidence, when it relates to, 161 Forms — bill of discovery merely, 918 of discovery in aid of defense at law, 919 Interrogatories, discovery by means of, 168 Objection to answering, how may be made, 160 Parties, rights of as to interrogatories as u means of discovery, 169 Pure, when may be filed, 157 What matters defendant must disclose, 159 Witness, though defendant may be examined as, does not preclude right to, 162 INDEX. 1597 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) BILL OF EXCEPTIONS — Not taken in regular chancery practice, 576 Taken on trial of issue before jury on petition of third party di3put-> ing validity of attachment, when, 797 Upon issues out of chancery, 666 BILL OF INTERPLEADER— Adequate legal remedy, when exists, cannot be tiled, 142 Allegations necessary in, 144 Bill in the nature of, 145 By whom may be filed, 140 Costs on, 147 Form of, 959 Instances illustrative of the right to maintain, 141 Interpleader as provided by statute, 146 In what cases will lie, 139 Parties to, 143 BILL TO PERPETUATE TESTIMONY— Essentials of, 149 Form of, 984 Object of, 148 Statute, provisions of as to perpetuation of testimony, 150 BILL OF REVIEV7— Allegations, the essential of, 218 Bill in the nature of, 224 Bill, supplemental, in the nature of, 225 Cases illustrative of the use of, 219 Cases illustrative of the disallowance of, 220 Cases reached by, class of, 210 Court, leave of to file, must be obtained, when, 214 Court, leave of to file, when need not be obtained, 214 Court, leave of, to file, how obtained, 215 Decree, as to the performance of before filing, 221 Decree, final, what is, 209 Decree pro confesso, to correct, will lie, when, 210 Defendants to, 217 Defenses to, for errors of law, 222 Defenses to, for newly-discovered evidence, 223 Definition of, 208 Errors apparent of record, will lie for, when, 210 Error apparent on face of decree, what is, 211 " Error apparent on face of decree," meaning of phrase, 211 Evidence, new, arising since trial, will lie for, when, 210 Evidence, newly-discovered, what is sufficient to sustain, 212 Filed, must be within what time, 213 Filed, where must be, 210 Forms — bill of review on discovery of new matter, 994 bill of review for errors in law, 993 order for leave to file. 1257 petitions for leave to file, 1009, 1010 When will lie — decree must be final, 209 Who may file, 216 BILL OF REVIVOR— Averments, the essential of, 185 Bill in the nature of, 187 By 'whom and in w^-«e name suit should be revived, 183 Defenses to, 186 Difference, characteristic, between bill of revivor and bill in the nature of, 187 1598 INDEX. (References are to sections, Vol. I comprising Sees. 1—810; Vol. II the residue.) BILL OF REVIVOR— Continued. . Forms — by the original complainant against the executor of the original defendant who had answered the original bill before his death^ 991 Motion, revivor by, 190 Revivor and supplement, bill of, 188 Revivor and supplement, what are, 188 Revivor and supplement, bill of, when proper, 188 Scire facias, revivor by, 189 Scire facias, can only be used when, 189 Suit, abatement of, so as to make use of, proper or necessary, 181, 182 Suit, how may be revived, 184 BONDS — Attachment bond, 774 Attached pi-operty not taken into possession until bond given, 774 Before whom attachment bond given, 774 Before whom injunction bond given, 704 Condition of attachment bond, 774 Condition of injunction bond. 702 Decree appointing special commissioner must provide for, 669 Exceptions to attachment bond, who may endorse, 774 Failure of special commissioner to give bond, effect of upon sale, 670 Forms — bond of injunction to judgment at law, 1269 exceptions to the sufficiency of an attachment bond, 1134 of exceptions to delivery bond taken by officer levying an at- tachment, 1247 of injunction bond, 1268 order awarding injunction without bond, 1213 order dissolving injunction unless new bond given, 1222 order overruling exceptions to attachment bond, 1176 order sustaining exceptions to attachment bond. 1177 order sustaining exceptions to forthcoming bond and requiring officer to obtain good bond, 1179 Injunction bond, 702-704 Injunction bond, when must be given, 704 Injunction ought not to be made to take effect until bond given. 702 Must be given before injunction takes effect, when, 702 Penalty of attachment bond, 774 Personal representative not required to give injunction bond, 702 Special commissioner to make sale of real estate must give, 669 Special commissioner to make sale of real estate must append to sale notice certificate of clerk that bond has been given. 669 The penalty of an injunction bond. 704 Who must be security on of special commissioner. 669 What irregularities wil not invalidate injvinction bond, 703 BOUNDARIES — Forms — bill in the matter of the confusion of. 900 Who may bring suit to settle confusion of. 56 Who must be defendant to suit to settle confusion of. .16 BUILDING AND LOAN ASSOCIATION — Bill to enjoin sale of propertv under deed of trust given to, form of, 9.'52 BURDEN OF PROOF— Affirmative allegations of an answer. 5^G Deed, in suit to contest. 536 Ex parte settlement of accounts, 536 INDEX. 1599 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) BURDEN OF PROOY — Continued. No certain rule as to^ 536 Plaintifl', generally rests \ipon, 535 Principles governing, 536 Rests upon party holding the affirmative, 508, 535 Shifts from party holding the affirmative, when, 535 Will, in suit to contest, 536 CANCELLATION OF WRITTEN INSTRUMENTS — Bill in the matter of, 115 Commissioner purchasing at his own sale, parties plaintiff and de- fendant, 55 Decree in matter of, essentials of, 591, 502 Defendants to suit for removal of cloud upon title to real estate, 48 Drunkenness, parties plaintiff in eases of, 54 Drunkenness, parties defendant in cases of, 54 Essential allegations in the bill in suits for the, 115 Fiduciary relationship, parties plaintiff in cases of, 55 Fiduciary relationship, parties defendant in cases of, 55 Forms — bill for because of infancy, 907 bill for because of fiduciary relationship of parties, 908 bill for because of drunkenness, 909 bill for because the act is ultra vires, 914 bill for cancellation |0f tax deed as cloud upon title, 901 bill to cancel deed carrying apparent title as creating cloud upon title of plaintiff, 902 bill to cancel contract of sale as creating cloud, 903 bill for on ground of fraud, 904 bill for on ground of undue influence, 905 bill for on ground of mental incapacity, 906 order cancelling instrument as cloud upon title, 1180 order cancelling instrument on ground of fraud, 1181 order cancelling instrument on ground dif infancy, 1182 order cancelling instrument because of insanity, 1183 Fraud, in cases of parties plaintiff, 49 Fraud, in cases of parties defendant, 49 Inadequacy of consideration and misrepresentation, parties plaintiff in cases of, 51 Inadequacy of consideration and misrepresentation, parties defendant in cases of, 51 Infancy, parties plaintiff in cases of. 53 Infancy, parties defendant in cases of, 53 Mistake, averments of the bill in cases of, 126 Mistake, parties defendant in cases of, 50 Mistake, parties plaintiff in cases of, 50 Plaintiff, who should be to suit for removal of cloud upon title to real estate, 48 To remove cloud from title to real estate, 48 Undue influence, parties plaintiff in cases of, 52 Undue influence, parties defendant in cases of, 52 CAPTION — Forms of, various, 875 Generally contains, what, 99 Or introduction of the bill, 99 CAVEAT EMPTOR— Nature and extent of the rule of. 687 Rule of applies to purchaser at judicial sale, 687 1600 INDEX. (References are to sections, Vol. I comprisihg Sees. 1-810; Vol. II the residue.) CERTAIlSrTY— Required in the statement of facts in the bill, 100 Various ways in which uncertainty in a bill may arise, 100 CESTUI QUE TRUST— Allegations of bill in various cases in which interested, 133-13.3p May file bill for removal of trustee, 79 May maintain bill for relief under trust deed, when, 60 May maintain bill of injunction inhibiting removal of growing crop, when, 60 May maintain bill for appointment of receiver, when, 60 May sue trustee under trust deed for accounting of funds, when, 60 When creditor of may charge trust subject, 79 When necessary paj-ty to suit, 60, 79 CHAMBERS — Decree or order for temporary alimony may be entered at, 589 Decrees which may be entered at, 570 Injunction may be dissolved at chambers, when, 711 Judge may award injunction at, 696, 701 May apopint receiver at, when, 737 May refer cause to commissioner at, 632 Motion to dissolve injunction at, notice of, 712 CHARGE ON REAL EST.\TE — Presumption that testator intends to make legacy, when, 538 CHARGING PART OF THE BILL— Form of, 878 May be omitted, 102 Purpose of, 102 What is the, 102 When advisable to use, 102 CHURCH PROPERTY— Form of order authorizing sale of, 1184 Form of petition by trustees for the sale of, 1003 Petition for the sale of, 250a Proceedings on petition for the sale of, 2506 When court may order sale of, 250c CLERKS — Direction to for issuance of summons, 11 Injunction orders directed to, when, 698 Require to keep lule docket, 252 Rules to be held in the office of, 251 When suit to be entered as dismissed at rules by, 256 CLOUD UPON TITLE — Bill for removal of, necessary averments in, 116 Character of decree that may be entered in, 592 Decree in th© matter of the removal of, 592 Defendants in suit for removal of, 48 Form of bill for cancellation of tax deed as creating, 901 Form of bill to cancel deed as carrying apparent title as creating, 902 Form of bill to cancel contract of sale as creating, 903 Form of order cancelling instrviment as creating. 1180 Plaintiff in suit for removal of, 48 Plaintiff in suit for removal of must be in actual possession, when, 48 CO-DEFENDANTS — Admissions of one defendant will not bind, when, 447 Answer of one defendant, when not evidence against, 447 Cross-bill may be filed against, 191 Decree between must be based upon pleadings and proofs between plaintiffs and defendants, 578 INL-EX. 1601 (References are to sections. Vol. I comprising Sees. 1-810; Vol. II the residue.) CO-DEFENDANTS — Continued. Decree between, when may be entered, 578 Form of answer in the nature of a cros8-bill setting up claim to affirmative relief, 1067 Form of cross-bill, 992 Form of commencement to answer of one defendant, 1046 Form of commencement to. answer of several defendants, 1047 Form of special reply of one defendant to answer in nature of cioss- bill of his co-defendant, 1078 How advantage taken of non- joinder of, 91 Joinder of, 86 Misjoinder of, 89 Must be party to an answer in the nature of a cross-bill, when, 424 No decree can be rendered against unless plaintiff entitled to relief, 578 No relief against by means of ordinary answer, 423 Relief against by answer in the nature of a cross-bill, 423 Should be made defendants to cross-bill, when, 198 When party to an answer in the nature of a cross-bill must be served with process, 424 > COMMISSIONERS IN CHANCERY— Adjournment of time for taking an account upon an order of reference to, 636 Cause should not be referred, to enable party to take evidence, 628 Cause should not be referred upon overruling demurrer, when, 628 Cause should not be referred to, when answer denies all the allega- tions of the bill, as a rule, 628 Character and extent of notice and how given of taking an account upon an order of reference^ 634 Confirmation of report of, how made, 644 Confiiet in the evidence before, so the fact in question cannot be de- termined, duty of, under such circumstances, 642 Debts to be reported on must be divided into classes, when, 642 Decree should designate the name of the commissioner, 632 Decree of reference should state principles upon which account is to be taken, 632 Decree of reference, should direct matters to be reported on, 632 Decree of reference may give instructions to, 632 Estates of decedent, references in cases of, 629 Evidence taken before, to be returned with report of, when, 637 Evidence, governed by ordinary rules of, 638 Evidence, Jiow usually taken before, 637 Evidence, parties should use diligence to present before, 639 Exceptions to report of, how argued, 647 Exceptions to report of, how taken and character of, 646 Exceptions to report of, who may file, 649 Exceptions to report of, when necessary, 646 Exceptions to report of, record of must show, 647 Exceptions to report of, when may be filed, 648 , Exceptions to report of, date of filing should be shown, 648 Exceptions to report of, advisable to file within the ten days after its completion, 648 Failure of, to report on matters referred to, 642 Findings of, when should be itemized, 642, 653 Findings of, as to matters of fact on a conflict of evidence, effect of, 650, 651 Forms — exceptions to report of, 1130 notice of taking accotmt by. 1116 notice that report of has been completed, J 115 160'' iiJr>Ez. (References are to sections. Vol. I comprising .Sees. 1-810; Vol. II the residue.) COMMISSIONERS IN CnANCmiY ~ Continued. Forms — order confirming report of and directing sale of infant's lands, 120t3 order referring cause to for account in suit against estate of decedent, 1138 order referring cause tOj to take an account in creditors' suit to enforce judgment liensj 1139 order referring cause to in suit to surcharge and falsify accounts of fiduciary, 1140 ' order referring cause to, to expunge scandalous matters, 116.5 order overruling some exceptions to report of and sustaining others, 1198 order referring cause on guardian's bill to sell lands of in- fant, 1205 order of reference to for settlement of executorial and administra- tion accounts, 1199 order of reference to for account of rents and profits under bill for equity of redemption, 1204 report of. 111,7 report of as to whether minor's interest will be promoted by sale of his lands, 1121 report of upon exceptions to an answer, 1125 report of in suit to surcharge and falsify accounts of fiduciary, 1126 Fraudulent conveyance, reference to, for ascertaining fraudulent in- tent, 630 General rule as to when cause should be referred to, 629 How appointed, their duties and powers, 627 Illustrations of general rule as to when cause should be referred to, 629 Introduction of evidence before, upon an order of reference for the taking of an account by, 637, 638 May submit matters to court for advice or opinion, 632 Matters to be reported on by the, upon order of reference. 633 Must report conclusions, and not circumstances, 642 Mutual and complicated accounts, reference to in cases of, 629 Necessary parties, in absence of, should be no reference to, 62S Notice of time and place of taking account upon order of reference, 634 Notice to lien holders upon order of reference to, 634 Order of reference may be entered by the court, or Judge in vaca- tion, 632 Order of reference cannot be waived by the parties, when, 633 Order of reference to, in creditors' suit, effect of, 655 Order referring cause to commissioner, 632, 633 Objections to report of, for errors on face of, 645 Objections to first report of, after second report has been made, 645 Partnership matters, reference in eases of, 620 Parties who may appear before, upon an order of reference. 635 Questions of law and fact may be passed upon by, when, 628 Reference to, to report upon title to real estate, 629 Reference to, when matter of is discretionary with court, 630 Rents and profits of real estate, reference to ascertain, 630 Report of, and its return, 640, 642 Report of, how it should be made, 640, 641 Repoit of must lie in office of, upon its completion for ten days, 643 Report of, objections to, how made. 645 Report of. should be recommitted before its confirmation, when. 654 Report of, upon wbat must be based, 63S INDEX. 1603 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) COMMISSIONERS IN CHAiUGF.RY — OonUnued. Report of, what shall be returned with, G40 Report of, what should not be copied into, 640 Report of, what notice to be given on completion of, 641 Report of, when advisable to except to, 646 Report of, when evidence not returned with, 648 Report of, when it contains alternative statements, 652 Report of, when it will be confirmed, 644 Report of, when it will be recommitted, 653, 654 Report of, when not excepted to, effect of, 647 Specific performance, reference in suit for to ascertain amount of taxes on land, 630 Stenographer, when may be employed to take evidence before, 638 Surcharge and falsify fiduciary's settlement, when suit to, should not be referred to, 628 When a cause may be heard on report of, 643 When cause should not be referred to, 628 When court not satisfied with report of, course to pursue, 646 When decree can be rendered on the evidence, should be no reference to, 628 When party no interest in the suit, should be no reference to, 628 When a cause should be referred to, 629 When court may state an account without referring cause to, 630 Who may act as commissioner, 631 Who may appear before, after an order of reference in creditors' suit, 635 Witness, how attendance of before procured, 637 Witnesses, examination of before, how conducted, 638 Witnesses may be summoned to give evidence before, 637 Witnesses may be examined and cross-examined before, 639 Writings, in cases of genuineness of, reference to, 629 COMMITTEE— Bill by for sale cf land of insane person, averments in, 818 Bill by for sale of property of insane person, 812 Caption of bill brought by — No. 4, 874 Forms — bill by to sell lunatic's lands, 1252 Insane person, suit against, should be in name of committee, when, 63 Introdueaion of bill filed by — No. 21, 875 Petition by for sale of estate of insane person, 235, 818 Petition concerning removal of estate by, 247 Petition for transfer of estate of insane person by, 246 Proper person to sue or be sued concerning estate of insane person, 63 Sale of land of insane person, can only be made by, 816 Sureties of, when necessary parties to suit on bond, 63 COMPETENCY — Exceptions to depositions because of incompetency of witness, 499 Incompetency of evidence, how waived, 500 Incompetency of witness to testify in Virginia, 528, 529 Interested party, Avhen not competent in West Virginia, 524, 526 Objections to, of witness, when should be made, 500 Of evidence, at what stage of the suit determined, 531 Of husband and wife as witnesses in Virginin. 532 Of husband and wife as witnesses in West Virginia, 533 Of witness, where contract made with agent, 530 Of witnesses, 523. 534 WTiat is personal transaction with decedent, 527 CONCURRENT .njRlSDICTION— Of equity in attachments, 762, 763 1604 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) CONFEDERATING PART OF THE BILL— How treated, 101 What it generally contains, 101 form of, 877 CONFESSION— Bill taken as confessed, when, 104, 258, Bill cannot be taken for confessed, when, 20, 581 Decree pro confesso, what is, and when will be entered, 580, 581 Effect of decree pro confesso, 582 Of judgment, form of order setting aside made in action at law to obtain injunction, 1219 Of judgment upon awarding injunction to action at law, 717 CONFIRMATION— Commissioner's report of sale, 681 Court's refusal of commissioner's report of sale, 681, 684 Forms — order confirming sale under attachment, 1161 order confirming report of commissioners assigning dower, 1196 order overruling some exceptions to commissioners report and sustaining others, 1198 order confirming commissioner's report and directing sale of in- fant's lands, 1206 order confirming sale of infant's lands and directing investment of proceeds, 1208 order confirming report of guardian as to borrowing money and authorizing execution of mortgage, 12.30 order confirming report of commissioners making partition of real esfcite, 1232 order conflrjTiing commissioner's report in creditor's suit, 1233 Of report of commissioner in chancery. 644 CONSENT— Amended decree by, cannot be, when, 351 Decree by, definition of, 579 Decree by, efl'ect of, 579 Decree by, how made, 579 Decree by, how may be amended or set aside, 351, 579 Decree by, when )nay be amended or set aside, 579 Who may consent to the entry of a decree, 579 CONSOLIDATION OF CAUSES— The object to be obtained by, 553 The mode of obtaining an order for, 555 When court should order, 554 CONTEMPT— Answer to rule to show cause why party should not be attached for, form of. 1274 Court, attachment for contempt of, form of order. 11 T2 Court, what may exercise power to punish for. 726 Injunction must be obeyed while in force, 720 Order to show cause why attachment should not issue for disobeying injunction order, form of, 1273 Party cannot be heard until he purges himself of, 834 Petition in procedure for, form of, 1272 Procedure in matters of, 724 Procedure in matters of, how entitled, 724 Violation of injunction, how punished, 723 Violation of injunction is punishable as contempt of court, 722 Violation of injunction, what constitutes, 721 INDEX. 1605 (References are to seetions. Vol. I comprising Sees, i— 8io; Vol. II the residue.) CONTINUANCE— Admissions of fact to avoid continuance, 467 Amendment of pleadings, right as to continuance because of, 464 Application for continuance, how made, 475 Commissioner, when case before, right of party as to continuance, 463 Costs, failure to give security for, as ground of continuance, 470 Court, to the next regular term, when continuance presumed to be, 476 Counsel, absence of. as ground of continuance, 471 Counsel, mistake of, as ground of continuance, 468 Defendant, as to light of continuance upon filing his answer, 461 Depositions, to enable party to take, as ground of continuance, 472 Diligence to be shown, what, in order to obtain continuance, 473 Discretion of court, right to continuance rests in, when, 465 Effect of order granting continuance, 476 Evidence, right to continuance, to procure, 466 Evidence, newly-discovered, as ground of continuance, 474 Forms — affidavit for, 1092 Hearing, to enable party to prepare cause for, as ground for con- tinuance, 469 New party, right to continuance by, when suit revived in his name. 462 Parties, mistake of. as ground for continuance, 468 Principles governing, in equity, 460 CONTRIBUTION— Decree in the matter of, 593 Form of bill for, 911 What decree for should contain, 593 What decree in matters of must show, 593 What plaintiff must show to obtain, 57 Who may be plaintiffs in suit for, 57 Who should be defendants in suit for, 57 CONVERSION— Of land into money, 829 CO-PLAINTIFF— Creditors may be, 59 Legatees and distributees may be, 69 Forn' of petition to make party a, 1004 Husband and wife, as in Virginia, 846 Husband and wife, as in West Virginia. 84a Petition mr.y be filed to make party a, 227 \Mien parties c-annot be. 85 Who should be, 84. 85 Who may be in partition suit, 74 CORPORATIONS- Answer of, as to its being under oath, 409, 410 Answer of not evidence for, when, 442 Bill, allegations of in suits by stockholders on behalf of, 131 Bill of discovery against necessary parties to, 158 Caption to bill filed by. form of — No. 7, 874 County wherein they may be sued, 3 Decree in matters relating to. 504 Foim of affidavit for order of publication against for failure to comph with certain requirements of statute, 1280 Form of bill for dissolution of, 912 Form of bill to rescind ullrn vires act of. 914 Form of bill to set aside fraudulent conveymce of. 936 Form of bill to pnioin municipal from creating illeaal debt. 953 Form of bill- to enjoin municipal from collecting illegal tax. 954 1606 INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) CORPORATIONS — Continued. Form of bill to enforce laborers' lien against, 964 Form of introduction of bill filed by — No. 22, 875 Form of introduction to bill filed by — No. 33, 875 Form of return of service of process agairLst on attorney — No. 61, 891 Form of return of service of process delivered to president of — No. 62, 891 Form of return of service of process when delivered to treasurer of — ■ No. 63, 891 Form of return of service of process when delivered to attorney ap- pointed under statute — No. 64, 891 Form of return of service of process upon, in Virginia — No. 66, 891 How process served on which has not complied with statute, 22 Must answer under corporate seal, 410 Order publishing pi'ocess against in Virginia, form of — No. 57, 890 Service of summons upon, 15 Service of process on by order of publication, 18 When members of cannot sue, 58 When proper plaintiff in suit, 58 When proper or necessary defendant to suit, 58 When stockholders of may sue, 58 Who may sue as to acts ultra vires of, 58 Where insurance corporation may be sued, 6 Where process is delivered to depot or station agent — No. 65, 891 COSTS— Amendment, costs in cases of, 859 Awarding of costs in discretion of court, 856 Bills of discovery, ';osts in the matter of. 860 Bill of interpleader, in the matter, 147 Committee of insane person, when to pay, 862 Contest of wills, costs in suits for, 870 Construction of wills, costs in suits for, 870 Dismissal of suit for failure to give security for costs, 873 Divorce and alimony, costs in suit for, 861 Each party to pay his own costs, when, 856 Fiduciary acting in good faith never required to pay, 862 Fiduciaries, costs in suits hy and against, 862 Final judgment or decree, party obtaining generally entitled to, 855 Forms — affidavit by poor person to rplieve fiom giving security for, 1095 order suggesting non-residence of plaintiff and demanding se- curity for, 1185 order dismissing bill for plaintiff's failure to give security for, 1250 Garnishment, costs in the matter of, 863 Garnishee should be allowed costs, when, 863 General pvincipli s relatinn- to, 855, 856 Guardian, when to pay. 862 Infants, costs in suits by and against, 864 Injunction suits, costs in, 865 Jurisdiction of court as affecting the matter of costs, 871 Jurisdiction, when court without, costs not awarded, 871 Law of costs, how interpreted, 856 Mortgage and other liens, costs in suits for the enforcement of, 866 Not recoverable at "ommon law. 856 Partition suits, costs in, 867 Party substantially prevailing entitled to, 856 Party abandoning or dismissing suit must pay costs. 857 Person not party to suit, when costs may be given against, 856 INDEX. 160Y (References are to sections, \ ol. I comprising Sees, i— 8io; Vol. II the residue.) COSTS — Continued. Person not party to suit not required to pay costs as a rule, 856 Personal representatives, costs against, when, 862 Pleaj3 in abatement, costs with reference to, 858 Poor person not required to pay costs, when, 872 Security for costs, when required, 873 Security for costs, when may be given, 873 Specific pei'form.ances, costs in cases of, 868 Trusts and trustees, costs in cases of, 869 COUNTY IN WHICH SUIT MAY BE BROUGHT— Against an insuiance company, 6 For the rescission of a contract, 4 For the specific performance of contracts, 4 General statutory regulations as to, 1 In cases, of divorce, 2 In suits involving fraud, trust or contract, 4 In the county where the cause of action arises, 9 In transitory actions at common law, 10 Meaning of word "reside," 2 Residence of defendant as determining, 2 Residence of defendant as determining, when more than one defen- dant, 2 Several defendants when court obtains jurisdiction of one, 2 Statute relating to, how construed, 10 To set aside a fraudulent conveyance, 4 To subject land to the payment of a debt, 4 When a corporation is defendant, 3 When the judge of the circuit is interested, 8 When the State is the plaintiff, 7 Where a non-resident may be sued, 5 CREDITORS' BILI^ Administrator may file against estate of decedent, when, 59 Against estate of decedent, essential allegations of, 117 Against estate of decetlent, it is usual for one or more creditors to file on behalf of himself or themselves and all other credi- tors, 117 Against estate of decedent must be notice to creditors, 599 Against estate of decedent, must always be a reference, 599 Can be no decree of sale on subject t-o widow's right of dower, 599 Creditor may file against estate of decedent, when, 59 Decree in the matter of, 595 Decree in the matter of to enforce judgment liens, 596, 598 Decree on against estate of decedent, 599 Decree on for sale of real estate, cannot be taken, when, 596 Decree on must direct an account of delinquent taxes, when, 596 Form of by personal representative against estate or decedent, 916 Form of in suit to enforce judgment lien, 915 Forms — against the estate of a decedent, 913 by executor or administrator to subject the real estate of the decedent to the payment of his debts, 916 caption and address of, to enforce judgment lien — No. 5, 874 caption and address of to set aside a preference — No. 6, 874 enforcing judgment lien, 915 introduction of to enforce judgment lien — No. 23. 875 introduction of to set aside a preference — No. 24, 875 How may be filed against estate of decedent, 59 Mere decree of rental on, reference not necessary, 597 Necessary or proper parties to, 59 ICO 8 INDEX. (References are to sections, \^ol. I comprising Sees, i— 8io; Vol. II the residue.) CREDITORS' BILh — Continued. No sale of land on if rents of real estate sufficient to pay debts, 597 Requirements of decree for sale of lajid on, 598 To set aside fradulent conveyance, 600 To set aside fradulent conveyance, when reference not necessary, 600 To set aside preference among creditors, 601 To enforce judgment lien, essential allegations of, 117 Usual way of filing, 59 Usual to refer to commissioner to take an account of liens and their priorities, 596 When not necessary to refer to commissioner to take an account of liens and their priorities, 596 Who may file, 59 cross-bil:i^ Answer to, 204 Averments, the essential of. 199 Consistent, must be, with the answer, 195 Court, leave of to file, when must be obtained, 201 Defendants, the necessary to, 198 Definition and purpose of, 191 Demurrer to, 202 File, who may, 197 Forms — answer in the nature of setting up a claim to affirmative re- lief. 1067 cross-bill, 992 cross-bill in the nature cf a plea puis darrein continuance, 992a Grermane to original bill, must be. 193 Germane to original bill, when, 193 Germane to original bill, when not, 193 Hearing on. 207 May be filed, when. 200 Not available as a means of defense, when, 192 New matter in, 194 Original bill, dismissal of. effect of on cross-bill, 205 Plea to, 203 Proceedings as to stay of on original bill pending cross-bill, 206 Relief, nature of obtainable by, 196 D DAMAGES — Assessment of on dissolution of injunction, 727, 728 In suit for specific performance. 615 Jurisdiction in attachment involving matters of, 762 DAY— To answer, after overruling demurrer, must be allowed. 314 To redeem must be allowed bv decree for sale of land, 598 DEATH— Abatement of suit by reason of. 181. 182 Of parties, efiect of u])on injunction. 715 Presumption of from absence, when arises, 538 DISSOLUTION— Continuance of motion to dissolve injunction, 707. 708 Form of final decree for of partnership and confirming report made in the cause, 1263 Form of notice of motion for of an injunction, 1113 Form of order for of injunction unless new bond be given. 1222 Form of order for of injimction and discharging receiver. 1221 INDEX. 1609 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) DISSOLUTION — Continued. Form of order for of injunction in vacation, 1216 Form of order for of injunction in term dismissing bill, 1218 Form of order overruling motion for of injunction in term time, 1217 Form of order overruling motion for of injunction in vacation, 1215 In what jurisdiction injunction may be disolved, 711 Of corporation, parties to suit for. 58 Of corporation, bill in suit for, form of, 912 ^ Of injunction, dismissal of bill, 713 Of injunction because of laches and defect of parties, 709 Of injunction, assessment of damages, 727, 728 Of partnership, pai'ties to suit for, 75 Of partnership, bill in the matter of, 129 Of partnership, form of bills in suit for, 970, 971 Order dissolving injunction, 714 Order for of injunction to judgment at law, setting aside a confession of judgment, 1219 Notice of motion to dissolve injunction, 712 When injunction may be dissolved, 710 When injunction ought to be dissolved, 706 DE BENE ESSE— Bill, definition and nature of, 151 Bill, essential allegations of, 154 Bill, may he maintained by whom, 152 Bill, when maintainable, 153 Form of bill, 985 Statute has superseded necessity of bill, 155 DEEDS OF TRUST— Bill in equity will lie to enforce lien of, when, 60 Defendants in suits relating to, 60 Form of bill to enjoin grantor .in from cutting timber, 947 Form of bill to enjoin sale of property under given to secure building and loan association. 952 Form of bill to enjoTn sale of property by grantor in, 951 Form of notice by trustee of .sale of property under, in West Vir- ginia. 1105 Form of notice by trustee of sale of property under, in Virginia, 1107 Form of petition by guardian to give on infant's lands, 997 Order, form of perpetuating injunction to trust sale, 1220 Statute of limitations as to right to enforce, 361, 362 Who may enjoin sale under, 60 DECREE. THP.— (See FoKMS — Orders anu Decrees.) Account, in the matter of. 588 Alimony, in the matter of. 589 Alimony, the character of the decree in the matter of, 589 Appeal, what decrees may be reviewed on, 568 Assignee, when can be no personal decree against, 584 Attachment, character of the decree in the matter of, 590 Attachment suit, when no personal decree can be rendered in, 583 Cancellation of written instruments in the matter of, 591 Classification and definition of decrees, 566 Classification of final decrees, 568^ Cloud upon title, in the matter of. 592 Cloud upon title, what form of decree may be entered in the matter of. 592 Co-defendants, when decree may be rendered between. 578 Compound interest, in the matter of. 606 Compound interest, wh"n may be decreed to be paid, 606 1610 nsTDEx. (References are to sections. Vol. I comprising Sees. 1-810; Vol. II the residue.) DECREE, THE — Continued. Conditions and reservations in, 586 Contribution, in the matter of, 593 Conflict of evidence, as to decree rendered on, 626 Corporation, suit to assert debt against expired, in the matter of, 595 Corporations, in the matter of, 594 Corporations, decree in the matter of the dissolution of, 594 Consent decree, its effect and how avoided, 579 Consent decree, can not be altered, when, 579 Consent decree, can not be set aside, when, 579 Consent decree, hovi' may be annulled or set aside, 579 Contribution, who.t should be decreed in the matters of, 593 Court can proceed no further in the cause after final decree, 567, 568 Creditors' suit to enforce judgment lien, in the matter of, 596, 598 Creditors' suit, -decree should refer cause to commissioner in, vrhen. 596 Creditors' suit, should generally be order referenc-e in, 596 Creditors' suit, when court will not decree sale of land in, 596, 597 Creditors' suit, when decree in should direct account of delinquent taxes to be taJ-zen, 596 Creditors' suit, if rents will pay debt, can be no decree of sale in, 597 Creditors' suit, details and requirements of decree of sale in, 598 Creditors' suit, administration of the assets of decedent's estate, in the matter of, 599 Creditors' suit to administer assets of decedent, who may bring, 599 Creditors' suit to administer assets of decedent, must always be decree of reference in, 599 Decree adjudicating principles of the cause, when interlocutory. 56S Decree adjudicating part of principles of a cause not appealable, 368 Decree cannot be rendered unless authorized by the pleadings. 573 Decree should show cause regularly matured for hearing, 575 Decree pro confesso, 104, 580 Decree pro confesso, effect of. 582 Decree pro confesso, when may be taken, 104, 580, 581 Decree pro confesso, to take, allegations of bill must be distinct, 580 Decree pro confesso, what is. 104, 580 Decree can only be taken in capacity in which party is sued, 581 Decree pro confesso, no appeal from, when, 582 Decree should be definite and certain, 585 Decree for the ptiyment of money, what should state. 585 Decree providing that eertnin things should be done, 585 Demand made in the bill, decree cannot exceed. 625 Decree may be final as to one party as not as to another, 569 Decree must be for aggrec^ate of principal and interest, when. 605 Divorce, in 1;he matters of, 602 Divorce, n mensa et thoro, cha.racter of decree that may be entered in suit for, 602 Divorce from bonds of matrimony, kind of decree to be entere 1 for. 602 Divorce, reservation in decrees of. 586 Effect of a decree, 574 English practice, when deci'ee final or intei'locutory under. 56V Final decree, illustrations of, 568, P58n Final decree, no evidence can be taken after, 567 Final decree, when con not he altei-ed or amended. 567 Fraudulent conveyance, decree to set aside. 600 Further relief, reservations in the decree as to. 586 Fraudulent purch.aser of property, when personal decree may be en- tered against, 584 Guardia.n, wben compound interest decreed aqrninst, 606 Heir at law, can be no personal decree for debt of ancestor, when, 584 Infants, in the matter of. 603 INDEX. 1611 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) DECREE, TEE — Continued. Infant, bound by decree as if an adult, when, 603 Infant cannot consent to the entry of a decree, 579 Infants, can be no decree against until guardian ad litem appointed and filed his answer, 603 Infants, reservation in the decree as to, 586 Infants, decree pro confesso cannot be rendered against, 581 Interlocutory decree when evidence may be taken after, 567 Injunctions, decree in the matter of, 604 Injunction, no personal decree rendered upon its dissolution, when, 583 Installments, reservation in decree as to payment of, 586 Interest, in the matter of, 005 Interest, decree for m Virginia, 605 Interest, rate of to be entered in the decree, 605 Joint defendants, decree may be rendered against, when, 607 Joint defendants, in the matter of, 607 Joint defendants, in suit against, decree may be against a single defendant, when, 607 Joint defendants, to decree against, all must be served with pro- cess, 607 Jurisdiction, essential elements of, 571 Jurisdiction, no decree can be rendered in the absence of, 571 Jurisdiction, not apparent on face of bill, when may be supplied by pleading or proofs, 571 Jurisdiction of the court essential to the rendition of, 571, 572 Jurisdiction of the person, how obtained, 571, 572 Jurisdiction of the person, what essential to obtain, 572 Jurisdiction of tlie person not conferred because party appeared as a witness, 572 Jurisdiction of the subject matter, how conferred, 571 Jurisdiction of the subject matter not conferred by consent, 571 Jurisdiction, presumptions indulged as to, 571 Judge interested in the cause can render no decree, 623 Judge interested in the cause may enter mere formal orders, when, 623 Legacy, refunding bond may be required before decreeing payment of, when, 586 Liens, in the matter of, 608. 609 Lost instruments, in the matter of, 610 Lost instruments, in suit to set up, what decree should provide, 610 Meclianics' lien, suit to enforce decree in 608 Mortgage lien, decree in suit to foreclose. 609 Mortgage lien, decree of sale in suit to enforce, 609 New trials, in the matter of, 611 Non-resident, decree pro ccvfenso cannot be rendered against, when. 581 Notice to creditors of decedent before decree of sale, 599 Order of publication, recital in decree that caiise was heard on, ef- fect of and when conclusive as to the fact of, 575 Order of reference to take an account, provisions in, 588 Papers mentioned in decree, only part of record, when, 576 Parties, no decree can be rendered in the absence of proper. 577 Partition in the matter of, 612 Partition, in suit for, interest of parties must be ascertained, 012 Partition, commissioners lo make, decree as to. 612 Partition, report of commissioners in suit for. decree as to. 612 {■artition, in suit for. decree as to owelty, when may be made, 612 Partnership, in the matters of 613 Partner.ship suit, when decree should refer cause to commissioner, O'.T Partnership suit, when final decree cannot be rendered in, against one in favor of another nartner. 613 Personal decree, when may be rendered, 583, 584 1612 INDEX. (References are to sections, Vol. I comprising Sees. 1—810; Vol. II the residue.) DECREE, TB-E — Continued. Personal decree can only be rendered when pleadings warrant it, 583 Personal decree cannot be rendered against personal representative, when, 583 Personal decree must only be rendered in capacity in which a party has been sued^ 583 Personal representative who has taken no refunding bond, when per- sonal decree against is proper, 584 Principal and surety, in the matter of, 614 Principal and surety, decree in suits as to, wixx adjust equities of the. parties inter sese, 614 Principal and surety, in suits concerning, land of principal will be decreed to be first sold, when, 614 Principles of the cause, what is a decree settling so as to appeal, 568 Preference among creditors, suit to set aside, in the matter of, 601 Reasons of the court for the rendition of the decree, as to, 624 Recital of facts in a decree, conclusive, when, 575 Recitals in a decree, effect of, 575 Record, what only a part of, 576 . Reformation of written instruments, in the matter of, 591 Rescission of written instruments, in the matter of, 591 Rights of all the parties should be adjusted by, 587 Specific performance, imposing conditions before decreeing, 586 Specific performance of contracts, in the matter of, 615 Specific performance, decree should carry out entire contract. 615 Specific performance, damages awaided in suit to enforce, when, 615 Specific performance, decree in suit to enforce, what matters may re- quire to be done, 615 The difference in effect between an interlocutory and a final, 567 Trust fund, in the matter of the misapplication of, 619 Trusts and trustees, in the matter of, 616, 619 Trustees, in the matter of the appointment of, 616 Trustees, in the matter of the removal of, 617 Trustees, in the matter of the instruction of, 618 Trustees, in suit by for instructions, what decree may be made, 618 Trustees, right of. to ask court for instructions, 618 Usury, in the matter of, 620 Vacation, when decree mav be entered in. 570 Vendors" lien, personal decree in suit to enforce against vendee. 584 Vendors' lien, in suit to enforce, no reference to commissioner required, when, 608 Vendee or purchaser of mortgaged property, wh^n personal decree may be rendered against in foreclosure suit. 584 What orders and decrees entered in the cause are reviewable upon an appeal from a final decree. 568!) When, will b,e treated as interlocutory. 566 Widow's dower, can be no decree of snle subject to, 599 Wills, in the matter of the contest of. 621 Wills, in the matter of the contest of, what decree may be en- tered, 621 Wills, in the matter of the construction of. 622 Wills, in the matter of the construction of, decree to be entered, 622 DEFENSES— Abatement, plea in. definition and purpose of. 266 Bar, plea in, definition and purpose oif. 267 Classification of, based on fact. 264 Demurrer, definition and origin of 265 Different kinds of. avRilnhle in eqtiity, 263 Disclaimer, as to time of enl/^rinn- nf 271 Disclaimer, by one of several defendants, 273 INDEX. 1613 (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) DEFENSES — Continued. Disclaimer, definition and nature of, 268 Disclaimer, effect of, 275 Disclaimer, exceptions to, 272 Disclaimer, filing of answer not to be evaded by, 269 Disclaimer, proceedings upon the filing of, 274 Disclaimer, requisites of, 270 Fact, defences based on, what are, 264 Pleas, anomalous, what are, 264 Pleas, different kinds of, 264 Pleas, negative, what are, 264 Pleas, pure or affirmative, what are, 264 DEMURRER, THE— Admitted, what matters, by, 295 Bill, dismissal of. effect of, on demurrer, 318 Bill, to a part of, 2il7 Bill, want of equity in, as ground of demurrer, 307 Bills, amended and supplemental, demurrer as to, 309 D^ath, judgment rendered after, as to raising validity oi by de- murrer, 310 Demurrer, ore terus, what is, 298 Discovery, in bills calling for demurrer to, 308 Frauds, statute of, a-s ground of demurrer, 306 Form of, 296 Forms — another common form of, in the Virginias, 1014 for multifariousness, 1016 for want of proper parties, 1015 form of to part of bill or to the relief, 10126 general words of conclusion to, to the whole bill, ]012o introduction to, to the whole bill, 1012a joint and several demurrer, 1012 order overruling and giving rule to answer, 1184a order sustaining and remanding cause to rules with leave to amend, 1 1846 the usual form of, in the Virginias, 1013 title of, 1011 to a bill filed by an infant without a next friend, 1017 Illustrative instances of the disallowance of a demurrer, 311 Incapacity to sue, demurrer because of, when will lie, 303 Jurisdiction, demurrer for want of, 300, 301 Jurisdiction, demurrer for the want of, will lie, when, 300, 301 J^aches and delay in bringing suit, demurrer because of, when will lie, 304 Legal demand only, when bill seeks, as ground of demurrer, 310 Matters which a demurrer will reach, 299 Multifariousness, demurrer because of, when will lie, 305 Object and scope of, 294 Overruled, when demurrer will be treated as having been, 313 Parties, demurrer for defect of, when will lie., 301 Parties, demurrer for want of interest in, when will lie, 302 Payment, presumption of, as ground of demurrer, 310 Pendency of another suit, demurrer because of, 310 Pleadings, to what demurrer extends, 317 Plaintiff in bill showing knowledge of pendency of another suit for same purpose, when reached by demiirrer, 310 Right of recovery, when none shown, demurrer because of, 310 The issue upon a demurrer, 312 1614 IKDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) DBMC7RREE, THE — Continued. When demurrer is overruled what court should do, 314 When demurrer may be' filed. 315 When demurrer sustained, course pursuable, 316 DEPOSITIONS— Adjournment of, 486 B.efore whom depositions may be taken, 478 Caption of the deposition, 490 Cause, at what stage of, deposition may be taken, 493, 494 Cause, pending, depositions must be taken in a, 479 Certificate to the deposition, 490 Decree', recital in that cause was heard upon, effect of, 492 Defects and irregularities relating to, who may take advantage of, 504 Evidence, as to what matters deposition can only be read as, 495 Evidence, incompetency of may be waived, how, 500 Evidence in chancery, former method of taking, 477 Evidence ip chancery, method of taking in the Virginias, 478 Examination of witness in taking, how eonductedj 489 Exceptions to, how taken, 497 Exceptions to, how passed on, 498 Exceptions because of incompetency of witness, 499 Piling of deposition, 491 1 Forms — caption of, examination of witnesses, adjournment and attesta- tion, 1279 exceptions to a, deposition as an entirety, 1266 exceptions to certain parts of a deposition, 1267 notice to take, 1100 Leading and other improper questions and answers in deposition, how objected to and wlien should be, 502 Lost, how supplied, 505 Notice, to take, 480 Notice to take, must be in writing, 482 Notice to take, requisites of, 480 Notice to take, service of, how made, 484 Notice to talce, sufficiency of, 482 Notice, what (onstitutes reasonable as to time of taking, 481 Objections to, 497 Objections to, usually made by exceptions. 497 Objections to, all waived but that excepted to, when, 501 Opposite party may read, when, 506 Party entitled to take, 483 Person before whom taken must stand indifferent between the parties, 487 1 Retaken in cause, usual to obtain consent of court therefor, 496 Retaken in cause without consent of court, when, 496 Suppression of deposition, 503 Taken in one suit may be used in another, when, 507 Taken, by whom may be, 487 Taking of. must be at time and place specified in notice, 485 When deposition will be sunnressed. 503 Witness, attendfince of before officer taking, how procured. 488 Witness, exaininstion of in takinij his deposition. 489 Witness, form of examination of in taking his deposition, 489 DISMISSAL OF BILL — ■ Absence of nroper parties, no ground of, when, 92 . Creditors' bill cannot be dismissed, when. 840 Dismissal of bill after cross-bill filed. 840 Dismissal of bill as to part of the defendants, 841 INDEX. 1615 (References are to sections, Vol. I comprising Sees. r-8ro; Vol. II the residue.) DISMISSAL OF Blhla — Continued. Dismissal of bill by infant, when, 840 Dismissal of bill as to part of the defendants, when allowed, 841 Dismissal of bill as to part of the defendants, when not allowed, 841 Dismissal of bill, when should be without prejudice, 843 Dismissal of bill " agi-eed,'" effect of, 844 Dismissal or discontinuance of cause for failure to prosecute same, 845 Dismissal of bill under '" four-year rule," 845 Forms — order dismissing bill without prejudice, 1178 order dismissing bill to set aside deed for undue influence, 1200 order dismissing suit agreed, 1275 order for because of plaintiff's failure to give security for costs, 1256 order in term time dissolving injunction anxi dismissing bill, 1218 Non-suit cannot be taken in equity, 840 Plaintiff may dismiss his bill without prejudice, when, 840 Plaintiff may dismiss his bill as matter of course, when, 840 Reinstatement of cause after its dismissal, 846 Stipulation of the parties, dismissal of the bill contrary to, 842 DISCLAIMER— Answer, when must accompany. 269 By one of several defendants, 273 Definition and nature of, 268 Effect of, 275 Exceptions to, 272 Filing an answer not to be evaded by means of, 269 Form of a single disclaimer, 1041 Form of answer and disclaimer, 1042 Proceedings upon the filing of, 274 Requisites of, 270 TinTe of entering or filing, 271 DISCOVERY— Against wiiom bill of may be filed, 158 Allegations necessary in pure bill of, 163 Allegations in mixed bill of, 164 Answer, effect of to pure bill of, 160 Answer to mixed bill of, 167 Answer to pure bill of, 165 Bill of as to documentary evidence, 161 By means of interrogatories, 168 Classification and definition of bills of, 156 Disclosures for which pure bill of will lie; 158 Forms — - bill for in aid of defense at law, 919 form of bill for, 918 plea to bill for that another suit is pending for the same dis- coveiy, 1036 plea to bin for that plaintiff' has no interest in the lands the title to which he seeks to discover 1037 plea to bill for that the discovery would subject defendant to forfeiture. 1038 plea, to bill for that discovery avouH compel the defendant to betray confidence as an attorney. 1039 Matters defendant must disclose on bill of, 159 Objection to answerinq- bill of. how raised, 160 Pure bill of may be filed, when, 157 Rights of parties as to interrogatories as a means o€, 169 1616 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) DISCOVERY — Continued. Witness, because party may be examined as, does not preclude right to bill of, 162 DIVORCE— Answer, form of in divorce setting up condonation, 1069 Answer, form of setting up recrimination, 1070 Answer, form of setting up claim to affirmative relief, 1071 Answer in cases of, -131 Bill for, esseoitial allegations of, 118 County where suit for may be brought, 2 Decree, form of restoring plaintiff to maiden name, 125-3 Decree in the matter of, 602 Form of bill to obtain on ground of adultery, 920 Form of bill to obtain on ground of impotency, 921 Form of bill to obtain because of penitentiai-y sentence, 922 Form of bill to obtain for conviction of infamous offense, 92:i Form of bill for three years' desertion, 924 Form of bill to cbtain for pregnancy at time of marriage, 92.5 Form of bill to obtain for wife's prostitution, 926 Form of bill to obtain for cruel treatment, 927 Form of bill to obtain for apprehension of bodily hurt, 928 Form of bill to obtain for abandonment or desertion, 929 Form of bill to obtain because of drunkenness and custody of children, 930 Form of decree of a vinculo matrimonii and awarding custody of children, 1188 Form of decree for a ni'-nsa et thoro where the defendant has not appeared, 1186 Form of decree for a vinculo matrimonii after a former divorce a men-ia et thoro, 1190 Form of decree for granted in answer in nature of cross-hill getting up claim to affirmative relief, 1191 Form of order directing payment of temporary alimony to the plain- tirr in term, time, 1193 Form of order directing payment of temporary alimony to the defen- dant in vacation, 1104 Form of order made in vacation directing payment of alimony pen- dente lite and awarding an injunction restraining the 1ms- band from incumbering or disposing of his property. 1282 Of divorce a mc'nsa ct thoro and for alimony where the defendant has appeared, form of decree, 1187 Of divorce a vinculo matrimonii and for alimony, form of decree. 1189 Order refusing to the plaintiff, and to the defendant on an answer in the nature of a cross-bill, 1192 DOWER— Formis — Bill in suit for assignment of. averments in, 119 Defendants, proper and necessary m suit for assignment of, 61 Form of bill for .ngainst alienee of former husband, 932 Form of bill in ordinary suit by widow for assignment of. 931 Form of order appointing commissioners to assio-n. 119,'i Frm of order confirming renort of commissioners assigning, 1196 Order directing the payment cf a grn.ss siin in lieu of, form of. 1197 Plaintiffs, parties to for nssicrnment nf, 61 Special commissioners, appointment of for assignment of, 695 INDEX. 1617 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the regitlue.) E EQUITY— Decree, provisions requiring the doing of, 586 Infants and insane persons not required to do, when, 815 Plaintiff must allege doing of in bill, when, 119a Plaintiff must do, when, 119a . Plaintiff need not do, when, 815 ERRORS— Amendment of affidavit for attachment because of, 767 Amendment of decree because of clerical, 350 EVIDENCE— Absence of party from home for seven years, presumption as to, 538 Account book, when may be introduced as evidence, 539 Account, evidence in matters of, 539 Actual admission on the record, 513, 515 Admissions as evidence, kinds of, 509 Admissions, improvident, made in answer, relief from, 515 Admissions in equity, as evidence, 509 Admission made by the bill, 513 Admissions made by the answer, 513n, 514 Admissions resting upon agreement, 509 Admissions upon the record, 509 Allegations in bill or other pleading, to be denied by affidavit, when, 512 Allegations to be denied by affidavit, instances of, 512 Ambiguous writing, parol evidence to explain, 548 Answer not responding to allegations of the bill, ground of exceptions, when, 510 Answer of co-defendant, as to admissions in, 447, 517 At what stage of the cause competency of witness may be de- termined, 531 Averments in the answer when not admitted to be true. 511 Averments of the answer, when admitted to be true. 511 Badges of fraud, effect of as evidence, in Virginia, 542 Badges of fraud, effect of as evidence, in West Virginia, 542 Burden of proof generally, 535, 536 Burden of proof, illustrative instances of, 535, 536 Burden of proof, rule a,s to, 535 Charge of legacy upon real estate, presumption as to. 538 Cohabitation as man and wife, presumption as to, 538 Commercial or negotiable paper, presumption as to, 538 Consideration of deed or other instrument, parol evidence to show, 548, 549 Construction of written instrument, parol evidence with reference to, 549 Constructive admissions by the pleadings, 510 Decree based upon a conflict in the evidence, 552 Divorce, evidence in the matters of, 540 Failure to examine material witness, effect of. 537 Failure to prove fact when able to do so, effect of, 537 Fraud, burden of proof and character of evidence in matters of, 541 Fraud, may be proved, how, 541 Fraudulent conveyances, badges of fraud in the matter of. 542 Fraudulent conveyances, burden of proof in matters, of, 541n ^Fraudulent conveyances, evidence in the matter of, 541« Good faith in tr.insaction, presumption as to, 538 Husband and wife, competency of as witnesses for and against each other, in West Virginia. 533 Husband and wife, competency as witnesses for and against each other, in Virginia, 53? 1618 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) EVIDENCE — Continued. Identity of names, presumption as to, 538 Interested party oannot testify in West Virginia, when, 524, 526 Judgments and decrees, evidence in the matters of, 543 Judgment, existence of, how proved, 543 Legitimacy of issue, presumption as to, 538 Letter, receipt of, presumption as to, 537 Law of another state or country, jjresumption as to, 538 Matters judicially noticed need not be proved, 518 Matters not judicially noticed, 521 Mental capacity, character of evidence used to show, 546 Mental capacity, evidence to establish existence of, 545 Mistake, evidence in the matters of, 544 Mistake, in matters of, character of evidence required, 544 Must be confined to the matters in issue. 550 Nature and character of, in a court of equity, 508 Parol evidence, admissibility of with reference to written instru- ments, 548, 549 Parol evidence, use of with reference to written instruments, general rule as to, 548 Partition of surface of land by parol includes minerals beneath, pre- sumption as to, 538 Personal transaction with deceased or insane person, what is. 527 Personal services, rendition of, presumption as to, 539 Pleadings, reading of at hearing to show admission therein, 516 Possession of land, presumption therefrom, 538 Presumption of law defined, 537 Presumption of fact defined, 537 Presumptions of law and fact, 537, 538 Presumptions arising in certain cases, 537. 538 Presumptions of law and fact, illustrations of, 537, 538 Principle underlying doctrine of judicial notice. 522 Proof must correspond to cwse made in the bill, 551 Receipt, parol evidence to contradict, 548 Reformation of written instrument, parol evidence to show, 548 That deed is a mortgage, parol evidence to show, 548 Unanswered allegations of the bill in ^^'est Virginia, admitted to be true, 510 Unanswered .allegations of an answer in the nature of a cross-bill, admitted to be true.. 510 L'nanswered allegations of the bill in Virginia, not admitted to be true -vhen, 510 Undue influence, character of evidence used to establish, 547 Undue influence, what is. 545 Variance of evidence from allegations in the pleadings, 551 Vouchers, failure to produce, presumption therefrom, 537 \\'hat matters judicially noticed, instances of, 519, 520 Wills, evidence i]i the matter of the contest of, 545, 547 Witnesses, competency of, 523, 534 Witness, when incompetent to testify in Virginia, 528, 529 Witness, incompetent to testify as to contract made with agent in Virginia, when, 530 EXAMINATION OF WITNESSES— Before commissioner in chancny, 637, 638 EXCEPTIONS— Commissioner's report when not excepted to, presumed to be cor- rect, 647 Court decides questions arising on, 415 INDEX. 1619 (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) EXCEPTIONS— Conimwed. Definition of, 414 Disposal of to depositions, 498 Forms — to a deposition as an entirety, 1266 to an answer for insuifieiency, 1128 to an answer for impertij'.enee and scandal, 1129 to a special commissioner's sale, 1131 to certain parts of a deposition, 1267 to delivery Hond taken by o0icer levying atacliment, 1247 to the report of a commissioner in chancery, 1130 to the report of a commissioner assigning dower, 1132 to the report of commissioner.s making partition of real estate, 1133 to the sufliciency of an attachment bond, 1134 Ground of to report of sale, 680, 681, 682, 684 How filed, 4I0 How to take, to depositions, 497 Impertinence in bill only reached by, 111 Must specify objections for scandal in bill, 111 New cannot properly be filed, 415 Object of, 414 Objections to commissioner's report raised by, 645 Scandal in bill only reached by. ] 1 1 SufBciency of answer usually raised and determined by, 413 To an answer, how taken, 414 To an answer, how disposed of, 415 To an answer may be disposed of in vacation, when, 415 To an answer, should be specific, 414 To an answer, what must contain. 414 To commissioner's report how made, 646 To commissioner's report, when necessary, 646 To depositions. 497, 499 To deposition because of incompetency of witness, 499 To depositions, when should be taken because of incompetency of witness. 499. 500 To leading and other improper questions and answers thereto, 502 To report of sale, 680 Waiver of to an ansAver, 419 Waiver of right to except to an answer, 419 Waiver of to depositions. 501 What defendant may do when filed to an answer, 418 When may be filed tn commissioner's report. 648 Who may' file to commissioner's report, 649 Will be sustained to an answer, when, 417 \^■ill lie to an answer, '.vhen. 416 EXCT.USIVE .JUEISDICTIOX— Of equity in attachment suits, 762. 763 EXECUTORS— (See Administrators, Peksonal Represent atives, *i- DTTCIARIES.) As necessary parties. 72. 62. 54. 57, 59. 60. 02, 65, 70, 71, 75, 76, 80 Form of caption of bill by— No. 10. 874 Form of introduction of bill by — No. 27. 875 EXHIBITS- Are part of the bill, 138 T^etermine the meaning and effect of a pleading, when. 138 Documents not usTiatlv set out in Iwcr rrrha in a pleading. 437 Execution of paper filed with answer, how put in issue. 437 1620 INDEX. (References are to sections, Vol. I comprising Sees, i— Sio; Vol. II the residue.) EXHIBITS — Continued. Error to hear evidence as to genuineness of, when, 437 How writing made an exhibit, 138 How issue as to genuineness of exhibit tried, 437 Genuineness of, how put m issue, 138, 437 When the words of the document should be set out in the bill, 138 Writings and other documents usually filed as with bill, 138 PACTS— Answer should respond to every alleged in bill, 402, 404 Bill should allege clearly and distinctly constituting ground of re- lief, 100, 108 FIDUCIARIES— Bills in the matters of, 132, 133.9 Bills surcharging and falsifying accounts of, 132 Decrees in the matters of, 616, 61U Forms — bill by to subject lands of decedent to payment of debts, 916 bill for cancellation of instrument because of fiduciary relation- ship of the parties, 908 bill to surcharge and falsify settlement of, 973 captions and addresses of bills by, 874 decree against, 1254 introductions of bills by, 87.5 Parties to suits in the matter of, 62, 63, 66, 67, 79 Who treated as, 62, 63, 66, 67, 79 FILING— Amended answer, when may be filed, 420 Answer cannot avail defendant till filed, 422 Answer to injunction bill, where may be filed and when, 421 Answer, what sufficient filing of, 422 Answer, when must be filed, 420 Answer, where it may be filed, 421 Bill, when must be filed at rules, 256 Disclaimer, when may be filed, 271 Forms — order filing answer and noting exceptions thereto, 1164 order filing answer and general replication thereto, 1167 order filing award and making allowance to arbitrators, 1170 order filing plea in abatment of an attachment, 1150 order filing petition of third party making claim to the property attached or to some interest therein. 1152 order ten'lering answer and asking leave to file the same, 1 163 Infant may file answer after attaining majority, 420 Of answer not to be evaded by disclaimer, 269 FINAL DECREE— Classification of, oOSo Definition of, 20d, 568. 569 Diflference in effect between interlocutory and. 567 May be as to one party and not as to another, ,569 Illustrative instances of, 568. 569 Orders and decrees in a caiise reviewable on appeal from a, 5686 Petition for further relief under, 234 FORECLOSURE— Decree in suit for. of morttrage. 608, 009 Form of bill in suit for. of mortgage, 933 Form of decree for by sale of the premises, 1203 INDEX. 1621 (References are to sections, Vol. I comprising Sees. 1—810; Vol. II the residue.) FORECLOSURE — Continued. Of mortgage, who may sue for, 72 Of mortgage, who necessaiy and proper defendants to suit for, 72 Of mortgage, averments of bill in suit for, 124 F0R3VIER SUIT— Form of plea of former suit for sajne matter, 1027 Identity of parties, 378 Plea in abatement of pendency of former suit, 289j 290 Plea of former adjudication other than that of a court of law or equity, 377 Plea of former judgment, 374 Plea of former judgment, essentials of, 374, 379 Plea of former judgment of foreign court, 375 Plea of former decree, 376 Plea of former decree, essentials of, 37() FORMER JUDGMENT OR DECREE— Adjudication in bankruptcy pleadable in bar, 377 Co-defendant, when decree pleadable against, 'iT8 Decree construing will, when pleadable in bar, 376 Essentials of plea of, 374 Form of plea of dismissal of former suit for same matter, 1027 Form of plea of former judgment at law for same matter, 1028 Foreign judgment, when pleadable in bar, 375 Former decree pleadable in bar, 376 Judgment must be final, 374 must have been rendered on the merits, 374 must have been between the same parties, when, 374 Must be identity of parties to make judgment or decree a bar, 378 Necessary allegations of plea of, 379 Not pleadable agviinst heirs at law, when, 378 Plea of, 374, 379 Plea of adjudication in bankruptcy, form of, 1040a Probate of will pleadable in bar, 377 What must appear to make decree a bar, 376 FORMS— Affidavits — authorizing an order of publication against corporation for fail- ure to comply with certain requirements of statute, 1280 by poor person to relieve from giving security for costs, 1095 for a continuance, 1092 for an attachment in Virginia for specific personal property, 1090 for an attachment in West Virginia, 1087 for an attachment in a suit in Virginia to recover a, debt or damages for breach of contract, 1091 of non-residence of witness, that his deposition may be taken. 1093 of non-residence of defendant for the purpose of an order of publi- cation, 1093a. to a bill by a fiduciary in Virginia, 1084 to a bill for an injunction in Virginia, 1083 to a bill in chancery in Virginia, 1082 to a bill of interpleader, 1086 to a bill on a lost instrument, 1088 to a bill of review on discovery of new matter, 1089 to an answer in Virginia, 1085 to ii bill of, or answer to, an injunction in West Virginia, when verified by a person other than the plaintiff, 1081 to any pleading in West Virginia made by a party suing in his own right, 1079 1622 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) FORMS — Continued. Affidavits — to any pleading by an administrator or otlier fiduciary in West Virginia, 1080 to require plaintiff to elect wJiether he will proceed at law or in equity, 1249 to be taken and subscribed by commissioners appointed to make partition, 1094 of default to file an answer with a view to compel the filing thereof, 1096 to the service of process or notice by a private person, 1097 Bills in equity — caption and address of tlie bill, showing various capacities in which plaintiff may sue, 874 title of bill — general form — No. 1, 874 where creditor sues on his own behalf and that of other creditors to enfoice judgment lien — Mo. i, 874 where creditor sues on behalf of himself and other creditors to set aside a preference — No. 6, 874 where plaintiff is a married woman — No. 2, 874 where plaintiff is an infant — No. 3, 874 where plaintiff is insane and for whom a committee ha^ been appointed — No. 4, 874 where plaintiff is a corporation — No. 7, 874 where plaintiff sue,s as administrator — No. 8, 874 where plaintiff sues as administrator with will annexed — No. 9, 874 where plaintiff sues as e.^cecutor — No. 10, 874 where plaintiff sues as special receiver — No. 11. 874 where plaintiff sues as special commissioner — No. 12, 874 where plaintiff sues as administrator de honis non — No. 13, 874 where plaintiffs sue as partners — No. 14. 874 where plaintiff sues as sun'iving partner — No. 1.5. 874 where plaintiff sues as a municipal corporation — No. 16, 874 The charging part of the bill, 878 The confederating part of the bill, 877 The interrogatory part of the bill, 880 The introduction of the bill, showing also the different capacities in which the party sues, 875 general form — No. 17, 875 second general form — No. 170^ 875 third general form — N-o. 18, 874 where plaintiff is an infant — No. 19, 875 where plaintiff is an infant — second form — No. 20. 875 where plaintiff is an infant — third form — No. 20a, 875 where plaintiff is the committee of an insane person — No. 21, 875 where plaintift' is a private corporation — No. 22, 875 where plaintiff sues on behalf of himself and all other lien cred- itors to enforce a judgment — No. 2.3, 875 where plaintiff sues to set aside a preference — No. 24, 875 where plaintiff sues as administrator — No. 25, 875 where plaintiff sues as administrator with will annexed — No. 26, 875 where plaintiff sues as executor — No. 27, 875 where plaintiff sues as special receiver — No. 28, 875 where plaintiff sues as special commissioner — No. 29, 875 where plaintiff sues as administrator de bonis n-on — No. 30, 875 where plaintiffs sue as partners — No. 31, 875 where plaintiff sues as surviving partner — No. 32, 875 where plaintiff sues as a municipal corporation — No. 33, 875 INDEX. 1623 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) FOHMS— Continued. The jurisdiction clause of the bill, 879 The prayer of the bill for relief — No. 39, 881 The prayer of the bill for relief — another form — No. 40, 881 The prayer for process — No. 44, 881 The premises or stating part of the bill, 876 Bills not original — a cross-bill, 992 a cross-bill in the nature of a plea puis darrein continuance, 992a amended or supplemental bill, 986 amended and supplemental bill — another form, 987 amended or supplemental bill — a further form, 988 amended bill — another form, and one often used in practice, 989 of revivor by the original complainant, against the executor of the original defendant, who had answered the original bill be- fore his death, 991 of review upon errors in law, 993 of review on discovery of new matter, 994 the amendment to a bill, 990 Certificate as to the publication of the order to be appended thereto — No. 53, 887 Certificate of publication and posting in Virginia — No. 55, 889 Demurrers — another common form of demurrer in the Virginias, 1014 demurrer for want of parties, 1015 demurrer for multifariousness, 1016 demurrer to a bill filed by an infant without a next friend, 1017 general words of conclusion to a demurrer to the whole of the bill, 1012c introduction to a demurrer to the whole of a bill, 1012a joint and several demurrer, 1012 title, 1011 the usual form of demurrer in the Virginias, 1013 where the demurrer is to part of the bill, or to the relief, 10126 Disclaimer — a single disclaimer, 1041 answer and disclaimer, 1042 Exceptions — to a special commissioner's sale, 1131 to an answer for insufficiency, 1128 to an answer for impertinence and scandal, 1129 to delivery bond taken by ofticer levying attachment, 1247 to the report of a commissioner in chancery, 1130 to the report of a, commissioner assigning dower, 1152 to the report of commissioners making partition of real estate, 1133 to the sufficiency of an attachment bond, 1134 General observations as to forms, 883 Miscellaneous Forms — caption of depositions, examination of witnesses, adjournment and certification, 1279 of bond of injunction to judgment at law, 1269 of exceptions to a deposition as an entirety, 1266 of exceptions to certain parts of a deposition, 1207 of injunction bond, 1268 of instrument making election to proceed in equity when action at law and suit in equity pending for same cause, 1277 1624 INDEX. (References are to sectiorts, Vol. I comprising Sees. i-8io; Vol. II the residue.) FORMS — Continued. Notices — by trustee for sale of property under a deed of trust in West Virginia, 1106 for the appointment of a new trustee in a deed of trust, 1108 in a proceeding to transfer property out of the State belonging to persons under disability, 110!) notice to creditors in a suit to subject the real estate of a decedent to the payment of his debts, 1110 of application for a rehearing of a decree entered by default, 1114 of application for an injunction, 1101 of application for the appointment of a receiver — general form, 1102 of application for the appointment of a receiver in a suit to foreclose a mortgage, 1103 of lis pendens, 1246 of motion to quash attachment in Virginia in vacation, 1248 of motion to dissolve an injunction, 1113 of sale of infant's lands in suit by guardian. 1106 of sale of property by trustee in a deed of trust in Virginia, 1107 of sale of real estate to be made by a special commissioner, 1112 of taking an account by a commissioner in chancery, 1116 of the application for the appointment of a receiver in a partner- ship suit, 1 104 that a commissioner's report has been completed, 1115 to hear petition of guardian to sell property of his minor ward, 1098 to hear petition to release inchoate right of dower of insane wife, 1099 to take depcsitions, 1100 to correct decree wherein there is clerical error, 1115a t« lien holders m a suit to enforce judgment liens, 1111 Orders and Decrees — adjudging answer insufficient and directing further answer to be filed, 1166 against garnishee in an attachment suit, 1175 against personal representative of the estate of a decedent. 1254 allowing bill to be amended after appearance and demurrer, 1142 allowing bill to be amended after answer filed by the defend- ant, 1143 allowing bill to be amended by adding new parties, and remanding cause to rules for that purpose, 1144 allowing bill to be amended to conform to the proofs and without prejudice to an injunction issued in the cause, 1145 allowing the return on a summons to be amended, 1146 aJlowing an answer to be amended. 1147 amending bill before appearance by the defendant. 1141 annulling marriage, 1162 appointing commissioners to assign dower, 1195 appointing commissioners to make partition of real estate and di- recting manner of partition, 1231 appointing receiver to sell, rent, estate. 1235 appointing receiver in vacation^ — general form, 1236 authorizing mortgage on lands of infant by his guardian. 1229 authorizing sale of church property, 1184 awarding an injunction by a judge in vacation to restrain the commission of waste. 1211 awarding an injunction by the court in term time to judgment at law, 1212 INDEX. 1625 (References are to sections, Vol. I comprising Sees. 1—810; Vol. II the residue.) FOBMS^Continued. Orders and Decrees — awarding injunction in vacation without bond, 1213 awarding injunction restraining and inhibiting laborers and mem- bers of labor organizations from molesting the plaintiff in the conduct of his business, 1271 cancelling an instrument as a cloud upon title to real estate, 1180 cancellation or rescission of an instrument on the ground of fraud, 1181 cancellation or rescission of an instrument on the ground of infancy, 1182 cancellation or rescission of a writing because of the plaintiff's insanity. 1183 confirming report of commissioners assigning dower, 1196 caption for order or decree with title of cause, 1258 confirming commissioner's report and directing sale of infant's lands, 1206 confirming commissioner's report in creditors' suit to enforce judg- ment liens, and appointing special commissioner to sell land, 1233 confirming report of guardian as to borrowing money and authoriz- ing the execution of a mortgage, 1230 confirming report of commissioners in making partition of real estate, 1232 confirming sale under an attachment, 1161 confirming sale of infant's lands and directing investment of pioceeds of sale, 1208 dismissing bill without prejudice, 1178 directing payment of temporary alimony to the plaintiff in term time, 1193 directing payment of temporary alimony to the defendant in vacation, 1194 directing the payment of a gross sum in lieu of dower, 1197 dismissing bill to set aside deed on the grounds of fraud and undue influence, 1200 dissolving injunction to an action at law, and setting aside a confession of judgment, 1219 dissolving injunction and discharging receiver, 1221 dissolving injunction unless new bond be given, 1222 directing issue out of chancery. 1223 directing an issue devisarlt vel non, 1224 declaring a deed to be a mortgage, 1228\ directing issue to determine question of fraud and mental in- capacity. 1255 dismissing bill- for plaintiff's failure to give security for costs, 1256 decree for partition and dower, and appointing commissioners to assign dower and make partition in same case, 1265 dismissing suit agreed, 1275 enforcing mechanics' lien, 1225 enforcing vendor's lien. 1226 entering inotion to quash an attachment, and overruling the same, 1148 entering motion to quash an attachment and sustaining said motion, 1149 entering up award as the decree of the court, 1171 entering rule against purchaser at judicial sale for failure to comply with his purchase, 1209 filing answer and noting exceptions thereto, 1164 filing answer and general replication thereto, 1167 1C26 INDEX. (References are to sections, Vol. I comprising Sees, i— 8lo; Vol. II the residue.) FORMS — Cvntinued. Orders and Decrees — liling award of arbitrators, making allowances to them, and di- recting summons to show cause against said report, 1170 final decree for dissolution of partnership and eoniirming report made in the cause^ 12faa finding agains't intervener in an attachment suit," 1173 filing plea in abatment of an attachment, lljO filing petition of third parly making claim to the property at- tached or to some interest therein, 1 152 for an account of rents and profits under bill for equity of redemption, 1204 for an injimction against a corporation, 1214 filing cross-bill and appointing receiver, as therein prayed for, 1234 for distribution of personal estate by administrator or execu- tor, 1202 foreclosure of mortgage by sale of the premises, 1203 for leave to file a bill of review, 1257 for sale of personal estate upon an attachment in a suit to which the defendant has appeared, 1159 for sale under an attachment of property that is perishable or expensive to keep, 1160 for sale of property attached when debt is not due, 1174 for specific performance after the writing has been reformed, 1240 for the specific performance of a contract for the sale of real estate, 1239 for specific performance, striking out one plea in abatement mak- ing up issue on another and overruling plea in abatement, upon a submission of the issue to the court. 1283 for specific personal property, embodying an order of sale under the laws of Virginia, 1151 for the construction of a will, 1245 general form of a decree. 1260 general form of an order, 1259 granting permission to guardian to submit to arbitration n matter relating to his ward's estate, 1168 hearing cause on intervention and garnishment in attachment, 1155 holding plea in abatement insufficient upon argument, 1137 in divorce suit restoring plaintiff to maiden name, 1253 in vacation directing the payment of alimony pendente Hie onil avrarding an injunction restraining the husband from in- cumbering or disposing of his property, 1282 made in term time overruling motion to dissolve injunction, 1217 made in term time dissolving an injunction and dismissing the bill, 1218 made in vacation overruling motion to dissolve an injunction. 1215 made in vacation dissolving an injunction, 1216 making up issue on petition of interA'ention in attachment. 1153 making up issue under the statute of West Virginia on plea in abatement of an attachment, 1154 of attachment for contempt of court, 1172 . of circuit court appointing receiver after an appeal to the su- preme court of appeals, and during pendencv of case on ap- peal, 1284 of divorce a mensa et tJioro, where the defendant has not ap- peared. 1186 of divorce a mensn et fhoro for alimony, where the defendant ha^ appeared, 1187 of divorce a vinculo matrimonii and awarding custody of chil- dren, 1188 INDEX. 1627 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. IT the residue.) FORMS — Continued. Orders and Decrees — of divorce a vinculo matrimonii and for alimony, 1189 of divorce a vinculo matrhnoiiii after a former divorce a mensa et thoro, 1190 of divorce granted on aruiwer in nature of a cross-bill setting up claim to affirmative relief, 1191 of reference for the settlement of executorial and administration accounts, 1199 of sale against lands of decedent, 1238 of sale of personal property on attachment and order of publi- cation, 1156 of sale of real estate apou attachment and order of publica- tion, 1157 of sale of real estate upon an attachment in a suit wherein the defendant has appeared, 1158 of sale m a suit where the property of principal and surety may be sold, 1237 order for revival of suit, 1262 order making petii^ioner party to the suit, 1204 overruling defendant's exceptions to an attachment bond, 1176 overruling demurrer to bill and giving rule to answer, H84a overruling exceptions to commissioner's report of sale of infant's lands, and requiring purchaser to comply with terms of sale, 1210 overruling some exceptions to commissioner's report and sustain- ing others, 1198 presenting affidavit and making motion to require the plaintiiT to elect whether she will proceed at law or in equity in one of two suits for the same cause, 1250 perpetuating an injunction to a trust sale, 1220 recitals of a decree, 1261 referring cause to a commissioner to take an account in a suit against the estate of a decedent, 1138 referring answer to a commissioner to expunge scandalous mat- ters, 1165 referring cause on guardian's bill to sell real estate to a com- missioner in chancery, 1205 referring cause to a commissioner to take an account in a creditors' suit to enforce judgment liens, 1139 referring cause to a commissioner in a suit to surcharge and falsify the settlement of the accounts of a fiduciary. 1140 refusing a divorce to the plaintiff, and to the defendant on an answer in the nature of a cross-bill, 1192 removing cause to another county because judge cannot properly preside, 1270 requiring plaintiff to elect whether he will proceed at law or in equity, 1276 setting aside fraudulent conveyance in favor of creditors, 1201 setting pica down for argument. 1136 setting up lost instrument and entering decree thereon, 1227 setting up a lost will, 1244 short form of decree on issue out of chancery on verdict of jury, 1278 striking plea in abatement from the record, 1135 submitting cause to arbitration and making the same a rule of court, 1169 sustaining defendant's exceptions to an attachment bond, 1177 sustaining demurrer to bill and remanding cause to rules with leave to amend, 11846 1628 INDEX. (References are to sections, \'ol. I comprising Sees. 1-810; Vol. II the residue.) FORMS— CowiOT licd. Orders and Decrees — sustaining exceptions to forthcoming bond in attachment suit and requiring officer to obta,in a g«od' bond, 1179 sugge.sting non-residence of plaintiff and demanding security for costs, 1185 tendering answer and asking leave to file the same, 1163 to show cause why an attachment should not issue for disobeying an injunction, 1273 upon guardian's petition to sell real estate of infant, hearing evi- dence and authorizing sale thereof, 1207 upon the verdict of a jury upon an issue out of chancery, 1241 upon verdict of jury devisavii vel non finding for the will, 1242 upon verdict of jury on an issue devisavit vel non finding against the will, 1243 Order of publication in Virginia as to a natural person — No. 56, 890 Order publishing process as to corporation — No. 57, 890 Original Bills — against an executor by legatees and administrator of a deceased legatee, for the payment of their legacies and shares of the residuary personal estate — No. 137, 957 against guardian and his surety by ward, after attaining ma- jority, for a settlement and final accounting — No. 121. 942 bill of interpleader — No. 139, 959 by a guardian to sell lands of an infant in West Virginia — No. 119, 941 by a trustee to obtain the advice of the court touching his duties, and for an auditing of his accounts — No. 159, 979 by committee of lunatic for sale of latter's lands, setting out spe- cific bids, 1252 by guardian to sell lands of an infant in Virginia — No. 118. 940 by guardian to lease infant's lands — No. 120, 941a by surety to be subrogated to rights of creditor — No. 157. 977 care to be observed in the draft of pleadings, 892 for alimony without divorce — No. 75, 896 for an account of partnership dealings, the appointment of a re- ceiver, and for an injunction — No. 74, 895 for annulment of marriage on the ground of duress — No. 76. 897 for annulment of marriage on the ground that the defendant had a former wife living at the time of the second marriage — — No. -77, 898 for contribution among co-sureties — No. 89, 911 for dissolution of partnership because of defendant's niisappli- calion of funds I0 his own use, and for a receiver — short form — No. 151, 971 for divorce on the ground of impotency — No. 99, 921 for dower in an ordinary suit by a widow — No. 109, 931 for dower by widow against alienee of a former husband — No. 110, 932 for injunction against cutting timber pending an action of eject- ment—No. 123, 945 for partition — No. 147, 967 for partition and account — No. 148, 968 for partition when some of the parties are unknown — No. 149, 969 for specific performance by A'endor against vendee — No. 154, 974 for specific performance by vendee against vendor — No. 155. 975 for specific performance of parol agreement for sale of land where there has been a part performance — No. 156, 976 INDEX. 16^9 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) FORMS— Continued. Original Bills — for the cancellation of a tax deed as creating a cloud upon title to real estate — No. 80, 901 for the cancellation or rescission of an instrument on the ground of fraud — No. 83. 904 for the cancellation of a written instrument on the ground of un- due influence — No. 84, 905 for the cancellation of a written instrument on the ground of mental incapacity — No. 85, 906 for the cancellation of a written instrument because of infancy — No. 86, 907 for the cancellation of a written instrument because of the fiduciary relationship of the parties — No. 87, 908 for the cancellation of a written instrument because of drunken- ness — No. 88, 909 for the establishment of the boundaries to real estate in cases wherein they have become confused — Xo. 79, 900 for the establishment and enforcement of a trust — No. 160, 980 for the dissolution of a corporation in a court of equity — No. 90, 912 for the dissolution of a partnership and for an injunction — No. 150, 970 for the foreclosure of a mortgage — No. Ill, 933 for the removal of a trustee because of misconduct in liis manage- ment of the trust fund, for an injunction and for a re- ceiver — No. 158, 978 for the rescission of a contract because the act is ultra vires — No. 92, 914 in a creditor's suit against the estate of a decedent — No. 91, 913 in a creditor's suit enforcing judgment lieu — No. 93, 915 in a creditor'!! suit by an executor or administrator to subject the real estate of the decedent 1,0 the payment of his debts — No. 94, 916 in an attachment suit — No. 78, 899 inclination of courts to disregard mere matters of form, 892 in a suit upon a lost instrument — Mo. 142, 902 mere matter of form of secondary consideration, 892 of committee of insane person to sell such person's estate — No. 140, 960 of discoveiy merely — No. 90, 918 of discovery in aid of defense at law — No. 97, 919 of injunction to judgment at law — !No. 122, 944 of injunction against closing right of way — No. 124, 945a of injunction to judgment at law on ground after-discovered evi- dence — No. 125, 9456 of injunction against laying gas pipe on the plaintiff's premises — No. 126, 946 of injunction by mortgagee or cestui que trust against a mortgagor or grantor in trust deed, inhibiting the latter from cutting; timber on the mortgaged premises — No. 127, 947 of injunction by receiver restraining interference with property in his possession — No. 128. 948 some further observations as to forms, 892 to cancel a deed canving apparent title as creating a cloud unon the title of the plaintiff — No. 81, 902 to cancel a contract of sale as creating cloud upon title to real estate — No. 82, 003 to carry decree into execution — No. 88a, 910 1630 INDEX. (References arc to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) FORMS — Cont inued. Original Bills — to construe a will — No. 16.3, 083 to enforce a laborers' lien against a corporation — No. 144, 964 to enforce a mechanics' lien — No. 145, 965 to enforce a vendor's lien — No. 146^ 066 to enjoin a nuisance by fouling a water course — Xo. 130, 950 to enjoin a sale of property under a deed of trust to secure pay- ment of money borrowed from building and loan association — No. 132. 952 to enjoin a municipal corporation from the creation of an illegal indebtedness — No. 133, 953 to enjoin the erection cf n nuisance — No. 129, 949 to enjoin the sale of property under a trust deed — No. 131, 951 to have an instrument in the form cf a deed declared to be a mortgage — No. 95, 917 to impeach a decree on the ground of fraud — No. 141, 961 to obtain a divorce from the bonds of matrimony on the ground of adultery, and for alimony and an injunction — No. 98, 920 to -obtain a divorce a vinculo matrimonii because of penitentiary sentence — No. 100, 922 to obtain a divoice from the bonds of matrimony because of con- viction of an infamous offense — No. 101, 923 to obtain a divorce from the bonds of matrimony because of three years' desertion — No. 102, 924 to obtain a divorce from the bonds of matrimony because of preg- nancy at the time of marriage — No. 103, 925 to obtain a divorce from the bonds of matrimony where the wife had been notoriously a prostitute before marriage — Xo. 104. 926 to obtain a divorce a mensa el thoro for cruel treatment — No. 105, 927 to obtain a divorce a mepsa o' thnro because of reasonable appre- hension of bodily hurt — Xo. 106, 928 to obtain a divorce a nidisa et thoro because of abandonment or desertion — No. 107, 929 to obtain a divorce a tmnsa et thoro because of habitual drunk- enness, praying custodj' of children and an injunction — No. 108, 930 to perpetuate testimony — No. 164, 984 to recover back purchase money on a deficiency in the quantity of land sold, .ibatement of purchase money — No. 72, 893 to recover back purchase money on deficiency of quantity of land sold — short form — No. 73, 894 to reform or correct a writing on the ground of mist^.ke — No. 1.52, 972 to restrain and inliibit the extraction of oil or gas from the land.^ of the plaintiff — X'o. 135, 955 to restrain and inhibit laborers and members of labor organiza- tions from molesting or injuring the plaintiflF in the conduct of his business — Xo. 1 38, 958 to restrain the collection of an illegal tax — No. 134. 954 to restrain the taking of private property for public use without compensation — No. 1 30. 956 to set aside ii conveyance or transfer so far as the same create* a preference — Xo. 117. 939 to set aside a fraudulent conveyance — No. 113. 935 to set aside fraudulent conveyance by corporation made to secure some of its oflicers — No. 1 14. 936 IHDEX. 1631 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) FORMS — Continued. Original Bills — to set aside voluntary conveyance to the prejudice of the rights of creditors — No. 115, 937 to set aside a fraudulent conveyance — short form — No. 116, 938 to set up a lost will — No. 143, 963 to set aside u will — general form — No. 161, 981 to set aside a will on the ground of undue influence and mental incapacity — No. 162, 982 to surcharge and falsify the settlement of a personal representa- tive — No. 153, 973 to take testimony de bene esse — No, 165, 985 value of the knowledge of forms. 892 Petitions — by a guardian to remove proceeds of the sale of real estate of the infant out of the State, 1002 by church trustees for the sale of church property, 1003 by guardian for the sale of infant's lands, 995a oy guardian for the lease of infant's lands, 996 by guardian to give mortgage or deed of trust on infant's lands, 997 by guardian to be allowed to apply part of the principal to tlie education or maintenance of the ward, 999 by guardian for permission to submit matter to arbitration, 1000 by husband for release of inchoate right of dower of insane wife, 1001 disputing validity of attachment by third party, 1006 for a rehearing by a non-resident after the entry of a decree upon an order oi publication in an attachment suit, 1007 for an attachment for disobeying an injunction, 1272. for leave to file a bill of review upon discovery of new matter, 1010 for leave to file a bill of review for errors apparent upon the face of the decree, 1009 petition for rehearing, 1005 petition making new parties to suit, 1004 to transfer estate of minor or insane person into another State or country, 998 where the petitioner was proceeded against as an unknown party, 1008 Pleas in Abatement — controverting the existence of the grounds upon which an order of attachment was issued, 1024 of the pendency of another suit, 1023 of want of proper parties, 1020 on the ground of plaintiff's insanity, 1022 on the ground of the plaintiffs infancy, 1021 to the jurisdiction of the court. 1018 to the jurisdiction of the court — another form, 1019 Pleas in Bar — of award, 1032 of a will, 1031 of bankruptcy, 1040rt of dismissal of former suit for same matter, 1027 of judgment at law for same matter, 1028 of release, 1029 of purchaser for valuable consideration without notice, 1033 of the statute of limitations, 1025 of the statute of frauds to a bill for specific performance, 1026 plea of stated account, 1030 1632 IMDEX. (References are to sections, Vol. I comprising Sees, i— 6io; Vol. II the residue.) FORMS— Continued. Pleas in Bar — that complainant has no interest in the lands, the title of which he seeks to discover, 1037 that discovery would compel the defendant to betray confidence as an attorney, 1039 that plaintiff not administrator as alleged, because supposed in- testate is living, 1035 that the discovery would subject defendant to forfeiture, 1038 to bill of discovery that another suit is puending for the same discovery, 1036 to bill of interpleader, 1034 to a bill of revivor, 1040 Prayer for an answer, oath waived — injunction against proceedings at law — declaration of trust — conveyance — No. 41, 881 Prayer for an injunction — No. 42, 881 Prayer for the production of deeds, papers, etc., — Xo. 43, 881 Reports — of sale by a special commissioner, 1118 of commissioners appointed to assign dower, 1119 of commissioners appointed to make partition of real estate where partition is made, 1120 of commissioner as to whether minor's interest will be promoted in a suit to sell infant's lands, 1121 of sale of special commissioner in suit to sell infant's lands, 1123 of commissioners appointed to make partition, that lands are not susceptible of partition, 1123 of commissioneis appointed to assign dower and make partition among the heirs at law, 1124 of a commissioner upon exceptions to an answer, 1125 of a commissioner in a suit to surcharge and falsify the settle- ment of the accounts of a fiduciary, 1126 of sale of property under an order of attachment, 1127 Sheriff's return upon process commencing suit, 891 sheriff's return upon summons as to natural person, when serv- ice is made upon member of defendant's family — No. 59, 891 where an attachment has been levied — No. 71, 891 where service is made on defendant by posting a copy of tlie process at the front door of his usual place of abode — No. 60, 891 when service is made upon a corporation upon its attorney — No. 61, 891 where service is made upon a corporation upon its president — No. 62, 891 where service is made upon a corporation when it cannot be had upon its president or other chief officer — No. 63, 891 where service is made upon a corporation which has failed to comply with chapter 54 of the Oode of West Virginia, sec- tion '24— No. 64. 801 where service is made in West Virginia upon a corporation liv delivering a copv of the summons to a depot or station agent — No. 65, 891 where service is made in West Virginia upon a corporation by delivering a copy of the summons to a director — No. 66, 891 where service is made in West Virginia upon a foreign insurance company — No. 67, 891 where service is made in West Virginia upon an unincorporated common carrier — No. 68. 891 where service is made upon a corporation in Virginia — No. 69, 891 INDEX. 1633 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) FORMS—Continued. Sheriff's return upon process commeneing suit — where service is made upon a garnishee in an attachment suit in West Virginia — No. 70, 891 where the defendant is served in person — No. 58, 891 The Answer — accounts — reference to boolis containing them, 1053 accounts refused as being useless before decree, 1054 admission for purpose of the suit, 1055 a formal general conclusion, 1061 amended answer after exceptions sustained to the original, 1074 an amended answer, 1073 a short and usual form for an answer, 1065 averring fraud in procuring contract sought to be enforced, 1068 in the nature of a cross-bill setting up a claim to affirmative re- lief, 1067 joint and several answer, 1044 of answer by one defendant, 1043 of an infant defendant by his guardian ad litpm, 1063 of an infant to a bill or petition t-o sell his estate as well also as of the guardian ad litem himself, 1064 of garnishee in attachment suit, 1072 of one of several defendants, 1045 reference to schedule, 1056 settled accounts — claim of, 1057 setting up partition by a parol agreement to a suit for parti- tion, 1075 submission by trustee to act, 1058 the usual conclusion, 1062 to an answer of one defendant, 1046 to an answer of several defendants, 1047 to a rule to sh-ow cause why a party should not be fined for contempt, 1274 to a bill for divorce setting up condonation, 1069 to a bill for divorce setting up recrimination, 1070 to a bill for divorce setting up a claim to affirmative relief, 1071 to a bill for an injunction to stay proceedings at law on a judg- . ment drawn to illustrate the principle permitting all defenses in equity to be made by answer, 1006 where defendant admits a statement, 1048 where a defendant believes a, statement to be true, but qualifies his admission of it not knowing the same of his own knowledge, 1049 where defendant is entirely ignorant with regard to the state- ment in the bill, 1050 where a schedule of deeds is required to be set forth in the an- swer, 1051 where an account of rents, or moneys received, or paid, is re- quired to be set forth by several defendants, 1052 where the defendant relies upon the statute of frauds, 1059 where the defendant relies upon the statute of limitations, 1060 The affidavit as to the posting of an order of publication in West Vir- ginia to be appended thereto — No. 54, 888 The order of publication in West Virginia — No. 52, 886 The ordinary form of a precipe — No. 45, 884 another form of an ordinary precipe — No. 46. 884 precipe where there are several defendants, some of whom are non-residents and infants — No. 47, 884 the affidavit of the non-residence of the defendant — No. 50, 885 1634 INDEX. (References are to sections, Vol. 1 comprising Sees. 1—810; Vol. II the residue.) POmiS— Continued. The ordinary form of a precipe — the affidavit of non-residenee and as to the unknown defendants — No. 51, 885 the summons commencing a suit in Virginia — No. 48, 885 the summons commencing a suit in West Virginia — No. 49, 885 The Replication — the general replication, 1076 the plaintiflF's special reply in writing to the answer of defendant setting up claim to affirmative relief, 1077 the special reply of a defendant to the answer of his co-defendant, wherein affirmative relief is sought by the latter against the former, 1078 FRAUD — Badges of, 542 Bill, allegations of, 120 Cancellation and rescission of contracts on the ground of parties to suit for, 49 Evidence in cases of, character of and burden of proof, 541 Form of bill for the cancellation or rescission of written instru- • ment on the ground of, 904 Form of order for cancellation or rescission of instrument because of, 1181 FRAUDS (STATUTE OF)— Answer, defense of available by, 434 Contract, when treated as good under, 434 Demurrer, may bo availed of as defense by, when, 372 Form of answer relying upon. 1059 Form of plea of, 1026 Plea, must be availed of by, when, 372 FRAUDULENT CONVEYANflES— Answer in suits to set aside, 430 Bill, necessary and proper allegations of in suit to set aside. 121 Decree in suit to set aside, 600 Decree in suit ix) set aside, as creating preference among creditors, 601 Evidence, character of and burden of proof in, 541, 541a, 542 Fo'm of bill to set aside, 935 Form of bill to set aside, made by corporation to secure its officers. 936 Form of bill to set aside voluntary conveyance made in fraud of plain- tiff's rights as a creditor. 937 Form of bill to set aside — short form, 938 Form of bill to set aside transfer or conveyance because it creates a preference among certain creditors, 939 Necessary parties defendant in suit to set aside, 65 Order cancelling, form of. 1181 Setting aside in favor of creditors, form of decree, 1201 Who may bring suit to set aside, 65 G GARNISHMENT— Answer of garnishee, 804. 805 Can be no decree against garnishee, when, 808 Decree against garnishee, character and extent of, 810 Defenses which garnishee may make, 802 Form of answer of garnisher. 1072 Oarnishee may object to irregularities in attachment, 807 Garnishee necessary party to the suit, 801 How party may be summoned to answer in garnishment proceed- ings. 798 How person designated as garnishee, 798 INDEX. 1635 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) GARNISHMENT — Continued. How person summoned to answer as garnishee, 798 Nature of debt of garnishee to authorize decree, 806 Proceedings upon appearance of garnishee, 803 Summons in, when returnable, 798 When garnishee should defend suit, 802 Who may be garnisheed, 799, 800 Who may not be garnisheed, 799, 800 GUARDIAN AND W^ARD — Bond for application of proceeds of sale of ward's lands, 828 Bill for lease or incumbrance -of land of ward, 813 Bill or petition to sell, lease or incumber land of ward, the essen- tial allegations of, 818 Bill surcharging settlements of guardian as a fiduciary, 132 Bill to sell estate of ward, 812 Decree to sell lands of ward, 826 Effect of sale of ward's estate upon the status thereof, 829 Form of answer of an infant to a bill or petition to sell his estate, as well also as of the guardian ad litem himself, 1064 Form of bill against guardian and his sureties by ward, after at- taining majority for a settlement and final accounting, 942 Form of bill by guardian to sell land of ward in Virginia, 940 Form of bill by guardian to lease lands of ward, 941a Form of bill to sell land of ward in West Virginia, 941 Form of petition by guardian for sale of ward's lands, 995a Form of petition by guardian to lease ward's lands, 996 Form of petition by guardian to give mortgage or deed of trust on lands of ward, 997 Form of petition by guardian to submit matter to arbitration, 1000 Form of petition by guardian to remove proceeds of sale of real es- tate of ward out of the State, 1002 Form of petition to be allowed to apply part of principal of ward to his education and maintenance, 999 Form of petition to transfer estate of ward into another State, 998 Guardian ad litem must be appointed to suit or proceeding to sell land of infant, 820 Guardian and sureties may be sued for an accounting, 66 Guardian cannot sue for possession of ward's property, when, 66 Guardian cannot sue in his own name, when, 66 Guardian may sue in his own name, when, 66 Guardian may be sued for an accounting. 66 Guardian only can sell or lease land of ward, 816 Investment of proceeds of sale of ward's estate, 827 Order confirming sale of infant's lands and directing investment of proceeds of sale, 1208 Order confirming commissioner's report and directing sale' of infant's lands, 1206 Order granting permission to guardian to submit matter to arbitra- tion relating to ward's estate, 1168 Order referring cause on guardian's bill to sell estate of infant to com- missioner in chancery, 1205 Order upon guardian's petition to sell real estate of infant, hearing evidence and authorizing sale thereof, 1207 Parties who are necessary, to proceeding to sell or lease land of ward. 817 Petition by guardian for sale of ward's estate, 235, 825 Petition to remove proceeds of sale of real estate of ward out of the State, 247 Petition to transfer estate of ward into another state or country, 246 Procedure to remove proceeds of sale of real estate out of State, 248 1636 INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) GUARDIAN AND WARD — Continued. Procedure to remove property of ward out of State, 248 Property that may be sold by guardian of ward, 819 GUARDIAN AD LITEM — Answer of must be actually filed, 820 Answer of must be under oath, when, 409^ 410, 820 Appointment ofj 401 Compensation of^ 824 Duties of, 822 Form of answer of infant defendant by — No. 243, 1063 Form of joint answer by infant to bill or petition to sell his estate and of his guardian ad litem, 1064 May be compelled to act, 401 Must be appointed in suit to sell estate of infant or insane person, 820 Must file an answer, 401 Powers of, 82.1 When and how appointed, 401 Who should be appointed, 821 H HANDWRITING — Competency of witness as to proof of, 527 Proof of not required, when, 437 HEARING — Cause may be set for hearing, when, 259 Cause must be matured for, 557 Cause must be set for before any decree can be entered, when, 259 Cause must not be prematurely heard, 557 Demurrer, hearing of cause on preliminary, 559 Final, disposes of case on its merits, 556 Final hearing of cause and effect of, 560 I'inal hearing, what may be on, 560 < Finally heard, when cause may be, 562 How cause matured for, 557 Manner of hearing a cause, 565 Matters that may be noticed or raised at, 564 Matters usually heard at preliminary, 558 Meaning of in equity, 556 Of cause, what matters may be considered on, 563 Part of defendants, when cause may be heard as to, 561 Part of defendants, when cause may be set for as to, 260 Preliminary and what may be passed on at, 556 Preliminary with reference to pleadings in the cause, 559 Rules to be observed essential to maturing cause for, 262 Upon demurrer, 560a HEIRS AT LAW — Judgment or decree against, personal representatives does not bind, 378 When necessary parties, 59-65, 70-72, 76, 82, 83 HUSBAND AND WIFE — As witnesses for and against each other in A^irginia, 532 As witnesses for and against each other in West Virginia, 533 Disqualification of one disqualifies the other, when, 533 Joinder of in Virginia. 84f) Joinder of in West Virginia, 84n Notice to hear petition to sell inchoate right of dower of insane wife, form of, 1099 Petition by husband to release inchoate right of dower of insane wife, form of, 1001 Procedure to release dower or curtesy of insane wife or husband, 831 INDEX. 1637 (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) HUSBAND AND WIFE — Continued. Release of dowfr or curtesy of insane wife or husband, how effected, 830 When and how married wonjiin may be sued, 6O0 When married woman may sue as feme sole, 660 I IMPERTINENCE — Answer must not be impertinent. 416 Bill must not be impertinent, 110 Form of exceptions to answer because of, 1129 Form of order referring cause to commissioner to expunge scandalous or impertinent matters, 1165 How objections to bill for raised, 111 What constitutes in answer, 416 What is in bill, 110 IMPOTENCY — Divorce on ground of, 118 Bill for divorce on ground of, what should show, 118 Form of bill for divorce on gixjund of, 921 INADEQUACY OF PRICE — As ground for setting aside judicial sale, 682-684 Judicial sale will be set aside on ground of, when, 682, 683 Motion to set aside sale on ground of should be accompanied by up- set-bid, 682 Of consideration as ground of cancelling contract, 51 Procedure to set aside judicial sale on ground of, 684 INCONSISTENCY — Alternative prayers for relief must not be inconsistent, 105 Cross-bill must be consistent with answer, 195 Answer cannot set up two defenses inconsistent with each other, 397 INFANTS AND INSANE PERSONS — Bill or petition in a proceeding to sell, lease or incumber the estates of infants and insane persons, 818 Bill or petition in a proceeding to sell, lease or incumber the estates of infants and insane persons, what it should show, 818 Bond to be given for application of proceeds of .sale or lease of land of infant or insane person. 828 Conveyances and transfers of property by infants and insane persons, suits to set aside, 815 Decrees eoncerniiig infants, 003 Decree to sell estate of infant or insane person or those interested in a trust, 826 Decree to sell estate of infant or insane person or one. interested in a trust, character of and what it may prescribe, 826 Dower or curtesy of insane wife or husband, petition for lelease of, 830 Dower or curtesj' of insane wife or husband, procedure vipon peti- tion for release of, 831 Forms — a.nswer of infant defendant by guardian ad litem, 1063 answer of infant to bill or petition to sell his estate, as well also as of the guardian ad litem himself, 1064 bill by committee of lunatic for sale of latter's lands setting out specific bids, 1252 bill by guardian to sell infant's lands in Virginia. 940 bill by guardian to sell infant's lands in West Virginia. 941 bill bv ward after attaining majority against guardian and surety for final settlement, 942 ' ' ' 1638 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) INFANTS AND INSANE PERSONS — C'o»«in«ed. Forms — bill by committee of insane person to sell estate of, 960 bill for the cancellation of an instrument because of infancy, 907 bill for the cancellation of an instrument because of mental in- capacity, 906 caption of bill where infant is plaintiff, No. 3, 874 caption of bill where plaintiff is insane and for whom a com- mittee has been appointed — No. 4, 874 introduction of the bill where infant is plaintiff — Xos. 19, 20, 20a, 875 introduction of the bill where plaintiff is committee of an in- sane person — No. 21, 875 notice to hear petition to sell property of infant, 1098 notice to hear petition to release inchoate right of dower of in- sane wife, 1099 order authorizing mortgage on lands of infant, 1229 order confirming report and directing sale of infant's lands, 1206 order confirming report of guardian as to borrowing money and authorizing execution of a mortgage, 1230 order confirming sale of infant's lands and directing investnu'nt of proceeds of sale, 1208 order granting permission to guardian to submit matter to ar- bitration relating to his ward's estate, 1168 order referring cause on guardian's bill to sell real estate to a commissioner in chancery, 1205 petition by guardian for sale of infant's lands, 995tj petition by guardian for lease of infant's lands, 996 petition by guardian to incumber infant's lands, 997 petition to transfer estate of infant or insane person into an- other State or country, 998 petition by guardian to be allowed to apply part of the principal to the education or maintenance of the ward, 999 petition by guardian for permission to submit matter to arbi- tration, 1000 petition by husband for release of inchoate right of dower i i insane wife, 1001 petition by guardian to remove proceeds of sale of real estate of infant out of the State, 1002 plea in abatement on account of the plaintiff's infancy, 1021 plea in abatement on the ground of the plaintiff's insanity, 1022 report of commissioner as to whether minor's interest will be promoted in suit to sell infant's lands, 1121 report of sale of infant's lands, 1122 upon guardian's petition to sell real estate of infant, order hearing evidence and authorizing sale thereof. 1207 Guardian ad Jitem, answer of must be actually filed, 820 Guardian ad litem as well a? infant must answer under oath in suit^ to sell property of, 820 Guardian ad litem, compensation of. P24 Guardian ad litem, considerations actuating the selection of, 821 Guardian ad litem, duties of, 822 Guardian ad lilcm may employ counsel, when, 823 Guardian ad litem- must be appointed in suit to sell property of infant or insane person, 820 Guardian ad litrin, powers of, 823 Guardian ad litem, what he cannot do, 823 Guardian nd litem, who generally appointed, 821 Guardian ad lilem, who may be appointed, 821 Infants, protection of by courts of equity. 81 1 INDEX. 1639 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) INFANTS AND INSANE PERSONS — Oontmued. Insane persons, protection of by courts of equity, 811 Investment of proceeds of sale of property of infant or insane per- son, 827 Leasing and incumbering the estates of infants and insane persons, 813 Necessary parties to a proceeding to sell, lease or incumber the estates of infants and insane persons, 817 Renewal of leases on behalf of infants and insane persons, 814 Sale of property belonging to infants and insane persons, 812 Status or nature of estate of infant or insane person not altered by a sale, when, 829 Summarj' proceeding for the sale, lease or mortgage of estate of in- fant or insane person, 825 What property of infants or insane persons may be sold under the statute, 819 Who may sell, lease or incumber the estate of infants and insane per- sons, 816 INJUNCTIONS — Actions at law, awarding injunctions against, 717 Action at law, confession of judgment in upon awarding injunction Appeal from an order dissolving an injunction, effect of, 72.5 Application for an injunction, how made, 699 Before whom injunction bond given, 704 Bill, when dismissed on dissolution of injunction, 713 Bond always required, when, 702 By what court or judge granted. 696 Clerk to whom injunction order must be directed, 698 Conditions of injunction bond, 702 Damages, assessment of upon dissolution of an injunction, 727, 728 Damages, when will be assessed upon dissolution of injunction, 727, 728 Death of parties, eflfect of upon the injunction, 715 Dismissal of bill upon dissolution of injunction, 713 Dissolution of an injunction because of defect of parties, 709 Dissolution of an injunction because of laches, 709 Final hearing of injunction suit, 718 Final decree in an injunction suit, 719 Forms — answer to rule to show cause why party should not be attached for disobeying, 1274 bill for against closing right of way, 045a bill for against cutting timber pending action of ejectment, 945 bill for against laborers and members of labor organizations, 958 bill for against laying gas pipe on plaintiff's premises, 946 bill for to judgment at law, 944 bill for to judgment at law on ground of after-discovered evidence, 9456 bill for by mortgagee or cestui que trust against mortgagor or grantor in trust deed, inhibiting the latter from cutting tim- ber on the mortgaged premises, 947 bill for by receiver restraining interference with property in his possession. 948 bill for in suit for divorce, 920 bill for in partnership matters, 970 bill for in the matter of trusts and trustees, 978 bill to enjoin the erection of a nuisance, 949 bill to enjoin a nuis.ince by fouling a water course, 950 bill to enjoin sale of property under a triist deed, 951, 952 bill to enjoin municipal corporation from the creation of an il- legal indebtedness, 953 1640 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II tlic residue.) INJUNCTIONS — Continued. Forms — bill to restiitiii the collection of an illegal tax, 954 bill to restrain the extraction of oil or gas from the lands of the plaintiff, 955 bill to restrain the taking of private property for public use without compensation, 956 bond of injunction to judgment at law, 1269 court, attachment for contempt of, order of, 1172 injunction bond, 1268 notice of application for, 1101 notice of motion to dissolve. 1113 orde'r awarding in vacation by judge to restrain the commission of waste, 1211 order awarding in term time to judgment at law, 1212 order awarding in vacation without bond, 1213 order dissolving to action at law and setting aside a confession of judgment, 1219 order perpetuating an injunction to a trust sale, 1220 order dissolving injunction and discharging receiver, 1221 order dissolving injunction unless new bond be given, 1222 order for against a corporation, 1214 order restraining and inhibiting laborers and members of labor organizations from molesting the plaintiff in the conduct of his business, 1271 ' order m vacation overruling motion to dissolve. 1215 order in vacation dissolving, 1216 order in term time overruling motion to dissolve. 1217 order in term time dissolving and dismissing bill, 121S order lo show cause why an attachment should not issue for dis- obeying an injunction, 1273 petition for an attachment for disobedience of, 1272 General rule as to continuing motion to dissolve an injunction. 707 Injunction bond, 702-704 Injunction to anv other matter than judgment, where mav be granted, 697 In what territorial jurisdiction injunction may be dissolved. 711 Judgment, injunction to. in what county may be granted. 697 Judge of Court of Appeals, when may grant. 696 Modifying or changing scope of injunction order, 705 Motion to dissolve an injunction, continuance of, 707. 708 Notice of application for, when should be given. 700 Notice of motion to dissolve, when necessary. 712 Order awarding injunction, how it should be dra^vTl. 701 Order awarding injunction, where entered, 701 Order dissolving injunction, what it mny contain. 714 Order of injunction must be obeyed while in force, 720 Order or decree dissolving the injunction. 714 Penalty of injunction bond, 702. 704 Premature to dissolve an injunction, when, 710 Re-instatement of an injunction. 716 to, 717 Violation of an injunction, how punished. 723 Violation of injunction is punishable as ii contempt of court. 722 Violation of injunction, what court may punish for ns a contempt, 726 Violation of injunction, what constitutes. 721 Violation of. procedure in matters of for, 724 What irregularities in bond will not vitiate it. 703 When an injunction ought to be dissolved. 706 When injunction ought not to be dissolved, 707. 708 INDEX. 1641 (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) INJUNCTIONS — Continued. When an injunction may be dissolved, 710 Within what time injunction bond may be given, 704 INSANE PERSONS — (See Infants and Insane Peksons.) Bill or petition in proceedings to sell, lease or incumber estate of, necessary averments in^ 818 Bond for the application of the proceeds of the sale of lands of, 828 Decree to sell estate of, 826 » Effect of sale ufon status -of estate of, 827 Effect of sale upon status of estate of, 829 Form of bill for concellation of written instrument made by, 906 Guardian ad litem for, when necessary, 6.1 Guardian ad litev. to suit to sell lands of, 820 Lease or incumbrance of the estate of, 813 Leases, renewal of on behalf of, 814 May sue by next friend, when, 285 Must sue by committee, when, 63 Necessary parties to suit to sell, lease or incumber the estate of, 817 Necessary party to a suit when, 63 Petition for sale or incumbrance of property of, 235, 818 Petition to have dower or curtesy of insane wife or husband released, 830 Petition to remove proceeds of sale of estate of, 247 Petition to transfer estate of into another State or country. 246 Procedure on petition to remove property of or proceeds of sale of real estate of, 248 Procedure to release dower or curtesy of insane wife or husband, 831 Protection of by courts of equity, 811 Sale, lease or incumbrance of estate of, who may bring suit for, 816 Sale of his real estate, suit involving, necessary party to, 63 Sale of property belonging to, 812 Suits by to set aside conveyances and transfers of property, 815 Suit concerning estate of should be in name of committee, 63 Summary proceedings by petition in West Virginia for sale, lease or mortga-ge of estaie of, 825 What property of may be sold under the statute, 819 INSANITY — Burden of proof on issue devimirit rrl von, 536 Burden of proof upon contest of the validity of a deed, 536 Evidence of, 546 Time to be looked to in determining question of, 545 INSOLVENCY — As ground of injunction must be alleged in bill, 122 Decree for conLribution against co-surety should show principal is insolvent, when. 593 Form of bill to set aside conveyance or transfer of insolvent debtor as creating a preference, 930 Insolvent co-surety not necessary party in suit for contribution. 57 Insolvent principal not necessary party to suit for cqntribution. 57 In suit by creditors against insolvent corporation, corporation neces- sary party, 58 INSURANCE COMPANT — County in which may be svied, 6 Sheriff's return of service of process upon foreign — No. 67. 891 INTEREST — Bill, what must be shown in as to suit concerning usurious. 133^ Character and extent of determining necessary and proper parties, 37 16413 iMDBX. (References are to sections. Vol. I comprising Sees, i— 8ro; Vol. II the residue.) INTEREST — Continued. Compound, when allowed, 606 Of plaintiff to enable him to mainta-in suit, 38 Parties in the matter of usurious, in suit concerning, 80 Of plaintiff must appear on face of bill, 1U8 Deeiee in the matter of, 605, 606 Rate of to be inserted in decree, 605 INTERLOCUTORY DECREES — Decree may be final as to one and interlocutory a-s to another, 569 Difference of effect between final and interlocutory decree, 567 Effect of decree as determining its character, 5(J8 Evidence may be taken after, when. 567 Petition for rehearing lies only to interlocutory decree, 229 Test of under English practice, 567 What decrees usually treated as int^rlocutoiy, 566 What is an interlocutory decree, 230 What interlocutory decrees appealable, 568 INTER VENOR IN ATTACHMENT — Forms — decree finding against, 1173 order filing petition of, 1152 order hearing cause on, 1155 order making issue on petition of, 1153 petition by, disputing validity of attachment, 1006 How matters arising upon intervener's petition tried, 795 Intervention must be by petition, 794 Issue upon intervener's petition tried by a jury, 796 Statute authorizing intervention by petition, 237 Time within which petition to dispute validity of attachment filed, 239 Trial of intervener's case before the jury, 797 What defenses may be made by intervenor in attachment, 240 \^'hat petition of intervenor should contain, 794 Who may intervene in attachment to contest its validity, 238, 793 INTERPLEADER — As provided by statute, 146 Bill in nature of bill of, 145 Bill of, necessary .illegations of, 144 Bill of can not be filed when adequate legal remedy exists, 142 Costs on bill of, 147 Forms — affidavit to, 1086 form of, 959 Illustrative instances of right to file bill of, 141 In what cases bill of will lie, 139 Parties to hill of, 143 Who may file bill of, 140 INTERROGATORIES— Form of interrogatory part of bill, 880 Form of special, 918, 919 General interrogatory of bill, effect of, 104 No good purpose served by general interrogatory, when, 104 Of bill, how should be answei'ed, 104 Of bill for discovery by the use of special, 104 Right of as a moans of discovery, 109 , Upon what all must be based, 104 What, defendant must answer. l.'iO INVESTMENT— Of proceeds of sale of real estate of infant or insane person, 827 INDEX. 1C43 (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) ISSUE— Directing issue out of chancery, 6.58 Directing issue out of chancery discretionary with court, when, 659 In what court issue trifd, 665 Joined upon a plea, how tried, 395 Of devisavit vel non, 664 On plea in abatement tried first, when, 280 Out of chancery, as to trial of before jury, 666 Out of chancery, setting aside a verdict rendered on, 667 Upon a demurrer, the, 312 When court may refer cause to commissioner or direct issue to be tried by a jury. 662 When court should direct issue out of chancery, 660 When issue out of chancery should not be directed, 661 ISSUES OUT OF CHANCERY— Conflict in the evidence, directing issue in case of, 658 Court may determine all matters of equitable cognizance without the aid of a jury, when, 656 Depositions, reading on trial of, 666 Eminent domain, jury trial in cases of, 657 Exceptions, bill of, when must be taken on trial of, 666 Forms — order directing issue out of chancery, 1223 order directing issue devisavit vel non, 1224 order making up issue on petition of intervention. 1153 order making up issue under statute of West Virginia on plea in abatement of an attachment, ii54 order on verdict of jury upon issue out of chancery, 1241 order upon verdict of jury devisavit vel non finding for the will, 1242 order upon verdict of jury on issue devisavit vel non finding against Lhe will, 1243 short decree on verdict of jury on, 1278 Injunction to judgment at law, jury trial as to, 657 In what court tried. 665 Issue of devisavit vel non triable before a juiy as matter of course, 664 Issue of devisavit vel non triable by jury, 657 Issue out of chancery, discretionary with the court to direct, 659 Issue ont of chaiiceiy, when court should direct, 660 Issue out of chancery, when court should not direct, 661 Jury trial, right I0 in a court of equity, 656 Jury trial, when matter of right in a court of equity, 057 Plea in abatement, attachment, jury trial on, 657 Pleadings, use of as evidence on trial of, 666 Trial of, before the jury, 666 \^' Verdict of jury, when court may disregard on issue out of chancery and enter decree contrariant thereto. 663 Verdict, setting aside of, rendered on trial of, 667 When court may either refer cause to commissioner or direct an issue out of chancery, 662 JOINDER OF PARTIES— All persons concerned in subject of suit may be joined, 86 Arrangement of the. 84 As plaintiffs in a suit, 85 1644 INDEX. (References are to sections, \'ol. I comprising Sees, i— 8io; Vol. II the residue.) JOINDER OF PARTIES — Continued. Forms — order allowing bill to be amended by adding new parties, 1144 order making petitioner party to suit, 1264 petition making new parties to suit, 1004 General rule as to joinder of plaintiffs, 85 Illustrations of joinder of parties having common interest, 85 Illustration of rule as to joinder of defendants, 86 iSTon-resident need not be joined as a party, 84 Of Iiusband and wife by reason of marital relation, 87 Of husband and wife in Virginia, 846 Of husband and wife in West Virginia, 84a Of parties having a common interest, 85 Parties who may be joined as plaintiffs, 85 Parties joined as plaintiffs may be transposed to the side of the defendants, how. 84 Party should not be joined without his consent, 84 Personal representatives, as to joinder of, 85 Persons having common interest may be joined as defendants, 86 Rule as to joinder of defendants, 86 Rules and principles governing, 84 Who have no real interest in the suit, 84 Who must be joined as parties, 84 JOINDER OF SEVERAL COMPLAINANTS— As joint tenants and others with common interest, 85 General lule as to the, 85 In bill to redeerii from mortgage, 85 In suit to rescind or cancel contract, 85 In suit to set aside fraudulent conveyances, 85 In suit to set aside fraudulent purchases -of property, 85 Of e.Kecutors, 85 JOINDER OF SEVERAL DEFENSES— Embodiment of different defenses in one plea, 387 In an answer, .388, 397 Pleading several matters of law or fact in same suit, 387 JOINT DEFENDANTS— Answer of one defendant as evidence against other defendants. 447 Answer of one defendant not conversant with facts alleged in bill, effect of. 447 Can be no decree against joint defendants, when, 607 Decree, when error to enter joint, 607 Defense of one defendant against joint demand, 607 Effect of answer of one defendant jointly Interested with others, 447 Guardian .nnd his sureties, joint decree against, 607 Service of process on part of defendants only, 607 Process on all defendants, service of. 607 Suit where one or more defendants beyond jurisdiction of court, 607 JOINDER OF SEVERAL DEFENDANTS— Relating to dower, 80 Relating to matters of fraud, 86 Relating to principal and surety, 80 Rule as to, 86 JOINT INTERESTS— Parties to suits in cases of, 84, 85, 86, 387 Plea of defendant holding joint intere.st with another, 387 JUDGES— County where suit to be brought when judge of circuit interested, 8 INDEX. 1645 (References are to sections, Vol. i comprising Sees. i-Sio; Vol. II the residue.) JUDGMENTS AND DECREES— Bill to impeach, necessary allegation of, li!3 Defendants, who may be sued so as to obtain relief against, 68 Form of bill to carry decree into execution, 910 Form of bill to enjoin judgment at law, 944 Form of bill to enjoin judgment at law for after-discovered evi- dence, 945& Form of bill to impeach a decree on the ground of fraud, 961 Plaintiff, who may sue as to relief against, 68 Presumption of regularity and validity of judgment, 538 JUDICIAL SALES— Adjoxirnment of, 673 Adjournment of, how made, 673 As to rescinding, 688 Bids, how enforced, 677 Bids, receipt of, 675 Bids, withdrawal or rejection of, 676 Cash payment of purchase money, disposal of. 692 Commissioner cannot bid or become purchaser at, 674 Conduct of, 672 Confirmation of report of, 681 Exceptions to report of, 680 Failure to give bond by special commissioner, effect of on sale, 670 Forms — exceptions to report of, 1131 notice of, 1112 order appointing commissioner to make, 1233 order entering rule against purchaser at for failure to comply with his purchase, 1209 order of sale in suit where property of principal and surety may be sold. 1237 report of, 1118 How purchaser compelled to pay purchase money, 690 Inadequacy of price as ground for setting aside, 682-684 May be public or private, 071 Notice of required, 671a Offer of upset-bid, how made. 684 Purchaser, interest of at, 678 Purchaser's right to possession of property bought at, 689 Report of, 679 Reversal of decree of sale, effect of upon title of purchaser, 685, 686 Rule of caveat emptor applies to, 687 Setting aside for upset-bid, manner of, 684 Setting aside decree of sale does not affect title of purchaser, when, 685, 686 Special commissioner appointed to make, 668 Special commissioner to make must give bond, 669 Terms of must be prescribed by the court, 671 Upset-bids, 682, 683 Usually on a credit, 671 Who may be appointed special commissioner, 668 JURISDICTION— Case made by the averments of the bill must show equitable, 103 Clause of bill not necessary, 103 Essential to rendition of decree, .'')71, 572 Form of jurisdiction clause of bill, 879 What constitutes, 571, 572 16,46 INDEX. (References are to sections, Vol. I comprising Sees- i-8io; Vol. II the residue.) JURY— Directing issue for trial by discretionary, when, 659 Directing issue upon coniliet of evidence to be tried by, 658 in what court to be impaneled, 665 Intervention in attachment, issue on tried by, 796 Issue controverting ground of attachment triable by, when, 782 Issue of devisavit vel non to be tried by, 664 Issue should not be directed to be tried by, when, 660 Issue to be tried by should be directed, when, 661 Plea in abatement in equity tried by, 395 Reference to commissioner in lieu of trial by, when, 662 Setting aside verdict rendered by, 607 Trial by not matter of right, when, 650 Trial by, when matter of right, 657 Trial of issue before, 666 Trial of intervenor's case before, 797 Verdict of may be disregarded by court, when, 663 LABORERS' LIENS— Form of bill to enforce in suit against corporation, 964 Parties plaintiff and defendant in suit to enforce, 70 LACHES— As affecting right to amend, 340 As affecting right to appoint a receiver, 736 As a defense in equity, 364 Fraudulent conveyance, in matters of, 357 Grounds of avoidance of, should be set forth in the bill, 123o How defense of may be raised, 304 What constitutes, 304 LAND— Alimony may be made charge on, when, 589 Bill, averments in to enforce liens against, 124 Bill for assignment of dower in, 119 Bills for tlie removal of cloud to title of, 116 Bond for application of proceeds of sale or lease of, 828 Bill or petition, requisites of to sell, lease or incumber lands of per- sons under disability. 818 Committee of insane person may sell land of, when, 235, 812 Creditors' bills tj subject to debts, averments of. 117 Creditor or personal representative may be plaintiff' in suit to sell land of decedent, 02 Decree to sell land of persons under disability, or those interested in a trust, 826 Deed of trust, parties to suit to sell land under. 60 Defendants, necessary to suit to sell land of decedent. 62 Effect -of sale upon status of, 829 Guardian ad litem must be appointed to suit to sell, when, 820 Guardian may sell infant's land, when, 235. 812 Investment, of proceeds of sale of belonging to infant or insane per- son. 827 Liens, enforcement of against, parties to suit for, 70 Legacy presumed to he a charge on. when. 53S Leasing and incumbering of infants' and insane persons'. 813 Mortgages on, redemption and foreclosure of. parties to suit. 71. 72 Necessary parties to a proceeding to sell, lease or incumber lands of persons under disability. 817 Of decedent, may be sold for payment of his debts, when, 62 INDEX. 1647 (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) liAND — Continued. Parol partition of includes coal under surface of, when, 538 Partition of, parties to suit for, 74 Petition to release dower or curtesy of insane wife or husband in, 830 Procedure to release dower or curtesy of insane wife or husband in, 831 Receiver of rents, issues and profits of may be appointed, when, 731, 737 Specific performance of contracts concerning, jjarties to suit for, 76 Summary proceeding for the sale, lease or incumbrance of land of infant or insane person, 825 Suit to recover or subject to payment of debt, county where brought, 4 Who may s€ll, lease or incumber of infant or insane person, 816 LEGACIES— Assignee of distributee may sue, when. 69 Debtor not necessary party to suit to recover, when, 69 Defendants to suit for settlement of estate, necessary, 69 Defendants to suit to recover, 69 Distributees may set aside deed or gift of personal estate, 69 Forms — bill to enforce payment of, 957 Legatee or distributee may sue for recovery of personal estate, when, 60 Legatees, how may sue for, 69 Suit against by creditor, defendants to. 60 When distributee or legatee may sue for distributive share, 69 LEGATEES AND D1STR113UTEES— Form of bill by for payment of legacies, 957 Legatee may sue al-one or on behalf of himself and others, 39, 41 Necessary parties to suits by, 69 Personal representative and creditor cannot be joined in suit by, when, 69 Personal representative proper party to sue for distributive share of property, when 69 When may sue for legacies ind distributable shares, 69 When may sue tc leeover personal assets of decedent, 69 'V\Tien necessary parties defendant to a suit, 69 LEGAL TITLE— Form of plea that plaintiff has no interest in the land the title to which he seeks to discover, 1037 Holder of must be party t.) suit, when. 37, 38 Holder of need not be party to suit, when, 37 LIENS— Bill to enforce mechanics', essential allegations of, 124 Bill to enforce vendors', essential allegations of, 124 Bill, essential allegation of in suit to enforce mortgage, 124 Decree in suit to enforce mechanics', 608 Decree in suit to ,">nforce vendors', 608 Decree in suit to foreclose ■■■nortgage, 609 Form of bill to enforce mechanics', 965 Form of bill to foreclose m-c-rtgage, 933 Form of bill to enforce vendors', 966 Forms — bill to enforce laborers' lien, 964 bill in creditors' suit to enforce judgment, 915 16i8 INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) HENS — Continued. FoiTiis — order confirming commissioner's report in creditors' suit to enforce judgment and appointing commissioner to sell land, 1233 order for foreclosure of mortgage by sale of premises, 1203 Of mortgage, parties defendant in suit to- foreclose, 72 Of mortgage, parties defendant in suit to redeem from, 71 Of mortgage, parties plaintiff in suit to foreclose, 72 Of mortgage, parties plaintiff in suit to redeem from, 71 Parties defendant in suits to enforce mechanics', 70 Parties defendant in suit tu enforce vendors', 70 Parties plaintiff in suit to enforce mechanics', 70 Parties plaintiff and defendant in suit to enforce laborers', 70 Parties plaintiff and defendant in suit to enforce lien of a legacy, 70 Parties plaintiff' and defendant in the matter of the enforcement of, 70 Who may enforce vendors', 70 LIMITATIONS (STATUTE OF) — Absence from state as a relief from bar of, 367 Actions and suits, when barred in five years, 358, 359 Actions and suits, when barred in one year, 360 Acts of defendant to relieve from as an obstruction to right of suit, 367 Answer, how set up in, 435 Answer, may be relied on by, 435 Availed of :is a defense, may be 'oy demurrer, when, 304, 353 Answer or plea, when defense of must be relied on by, 353 Award or contract, suit to enforce, when barred, 358 Avoidance of effect of by suitable allegations in the bill, 102 Bar of, what will relieve from, 365, 369 Begins to run, when, 356, 361 Burden of proof upon plea of, 371 Commissioner, how lelied on before, 353 Common law, defense of did not exist at, 358 Creditors cannot do so against a co-creditor, when. 354 Defense of personal, 354 Demand purely equitable, does not apply to suit to enforce, 362 Demand, wiien necessary, begins to run, when. 361 Disability does not suspend runninf? of, 365 Dismissal of suit will relieve from bar of. wlien. 369 Dower, suit for assignment of. when barred, 358 Estate of decedent, rights of suit against, when barred, 358 Form of answer relying on, 1060 Form of plea of, 1025 Fraudulent conveyance, no application to suit to set aside, 357 Fraud, in matteis of, begins to run, when, 356 Ignorance of rights does not relieve from, when, 365 Infants relieved from bar of, when. 365 Insane person relieved from bar of. when. 365 Judgment lien, suit to enforce, when barred, 358 Laborers' lien, suit to enforce, when barred, 358 Law of place, when governs in application of, 360 Married women, relieved from bar of. when, 365 Mechanics' lien, suit to enforce, when barred, 358 Municipalities, running of against, 370 Municipalities, when does not run against, 370 Municipalities, when runs against, .370 New promise, how made and essentials of to relieve from the bar of. whe'T. 366 New promise will relieve from bar. of, when, 366 INDEX. 1649 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) LIMITATIONS (STATUTE OF) —Continued. Obstructions to plaintiff"s right to sue will relieve from baj of, when, 367 Obstructions to relieve from the bar of, kind and character of, 367 Owner of estate in remainder or reversion, when begins to run against, 361 Payment, presumption of from lapse of time, 363 Payment, presumption of may be rebutted, 363 Partnership accounts, begins to run against suit for settlement of, when, 361 Period of time to be deducted from, 368 Period of time in which right of action or suit is barred by, 358 Personal action or suit, when barred, 358 Personal representative and sureties on bond, suit against when begins to run, 361 Personal representative, suit against to recover legacy, does not apply tc, 362 Plea of by one of two or more joint defendants, 353 Poverty or inability to bear litigation does not arrest running of, 365 Real estate, suit concerning, when must be brought, 358 Real estate, suit to recover possession of, barred, when, 365 Relied on, must be in some .manner. 353, 435 Running of not suspended, when, 365 Strangers cannot plead, 354 Suit to rescind sale under trust deed, begins to run as to, when, 361 Tax deed, suit to cancel, does not apply to, 362 Torts arising quasi ex contractu, begins to run against, when, 361 Trusts, in matters of, begins to run, when, 356 Vendor's lien, suit to enforce, not applicable to, 362 Voluntary conveyance, begins to I'un against suit to set aside, when. 357 Wife's claim against husband, statute begins to run against, when, 361 Wife not seized of separate estate, when begins to run as to, 361 Who may plead, 354 LIS PENDENS Assignee pendente lite not necessary party to suit, 46 Form of notice of, 1246 Purchaser pendevte lite may become party to suit, how, 46 Purchaser pendente Hit. not necessary party to suit, 46 Time for which suit treated as pending, 11 LOST INSTRUMENTS— Affidavit, form of to bill on, 1088 Piill in suit upon, necessary averments of, 125 Decree in the m.atter of. 610 Foi-m of bill in suit upon, 962 Form of bill to set up lost will, 963 Form -of decree setting up and granting relief thereon, 1227 Form of decree setting up lost will, 1244 M MARRIAGE— Annulment of, form of decree for, 1162 Annulment of, parties to suit for. 44 Bill for annulment of, forms of, 897, 898 Of single woman, other personal representative proceeds as if she were dead. 85 Of unmarried woman as personal representative is an extinguishment of her authority, 85 Of unmarried personal representative in Virginia does not affect her representative lights, 85 1650 INDEX. (References are to sections, Vol. I comprising Sees. 1—810; Vol. II the residue.) 2ML&RRIAGE — Continued. Statute of limitations does not run against married women during coverture, when, 361 MARRIED WOMAN— Cannot be joined with husband on ground of marital relation in Virginia, 87 Cannot sue her husband except in a court of equity, when, 66a Cannot sue on legal demand in equity, when, 66u In absence of statute must unite as plaintiff with husband, when, 84o Joinder of with husband in Virginia, when, 846 May be joined with her husband in suit in West Vrginia, 84a May sue or be sued as if a feme sole, when 66a MASTER COMMISSIONERS— See Commissioners in Chancery. MECHANICS' LIENS— Bill to enforce, allegation of, 124 Decree in suit to enforce, 608 Decree in suit to enforce, form of, 1225 Form of bill to enforce, 965 Parties defendant in suit to enforce, 70 Parties plaintiff in suit to enforce, 70 MISJOINER OF PARTIES— Abatement of suit aa to parties improperly joined, 87 Effect of, as plaintifls, 88 How availed of, 90 Of defendants, when there is, 89 Plaintiff', when no, 88 Who may take advantage of, 87 MISREPRESENTATION— Bill, averments in for cancellation because of false representations, 115 Only one phase of fraud, 51 Parties in suits for cancellation of instruments on ground of, 51 MISTAKE— Bill in suit to relieve from averments of, 126 Evidence in the matters of. 544 Form of bill to reform or correct writing on the ground of, 972 Parties defendant to suit to relieve from, 50 Parties plaintiff in suit to relieve from, 50 MORTGAGES— Bill to foreclose, essential allegations of, 124 Decree in suit to foreclose, 609 Form of bill for foreclosure of, 933 Form of bill to have deed declared a mortgage, 917 Form of decree fra- foreclosure of by sale of the premises, 1203 Form of order declaring deed to be a mortgage, 1228 Injunction against mortgagor to restrain cutting of timber, form of bill for, 947 Parties defendant in suit to redeem from. 71 Parties defendant in suit to foreclose, 72 Parties plaintiff in suit to foreclose. 72 Parties plaintiff in sviit to redeem from. 71 Statute of limitation as to right to enforce, .362, 363 MOTIONS— Against whom may be made. 835 Appointment of receiver, motion for. 839 Classification of. 832 Definition of motion. 832 Motion to dissolve injunction, when may be made, 838 IKDEX. 1651 (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) MOTIONS — Continued. Kenioval of suit to another county, motion for, 839 Revivor of suit upon motion, 83S) Party in contempt cannot make motion, when, 834 Special motion ex parte, what is. 837 Special motion ex parte, must be supported by aifidavit, 837 Special motions upon notice, illustrations of, 839 Special motions, when should be made only upon notice, 838 ' When matter of course, 836 When matter of course, illustrations of, 836 Who may make motion, 833 MULTIFARIOUSNESS— Bill against two or more, when treated as, 136 Bill against two or more, when not treated as, 136 Cardinal principles determining, 136 Demurrer because of, 305 Form of demurrer because of multifariousness, 1016 How defect of is reached, 137 Illustrations of showing bill not to be multifarious. 136a Illustrations of showing bill to be multifarious, 1366 Joinder of different matters in same bill does not constitute, when, 136 Joinder of several matters in same bill as constituting, 136 No general rule as to what constitutes, 136 Objection of may be disregarded, when, 136 Plea in abatement on the ground of, 293 Several matters in same bill as constituting, 136 Two causes, blending in same bill, does not constitute, when, 136 MULTIPLICITY OF SUITS— Avoidance of as ground of injvmction. 122 Considered on charge of multifariousness, 136 Suit would produce, plea m abatement, 292 MUNICIPAL CORPORATIONS— Contract, if in wrong name, how must sue on, 73 Form of bill to enjoin creation of illegal indebtedness, 9.53 Form of bill to enjoin collection of illegal tax. 954 Form of caption of bill when sues as plaintiff — No 16, 874 Form of introduction of bill by — No. 33. 875 Name if lawfully changed, should sue. how. 73 Should sue and be sued in trne corporate name, 73 Statnte of limitations runs against, when, 370 Statute of limitations does not run against, when, 370 Suit against, parties to, 73 N NAMES— Bill should describe the parties by their proper names, 108 Bill usually addressed in the name of the judge, 98 Caption of bill generally contains names of plaintiffs and de- fendants, 99 Revived, in whose name suit must be. 183 Suit cannot be brought in name of party who has parted with his interest in the subject-matter, 38 Suit cannot be maintained in name of one plaintiflf for use of another, when, 38 Suit should be in name of beneficiary, 38 Suit in name of one plaintiff on behalf of himself and others, 39 NEW PROMISE— Bar of statute of limitations, relieves from, when. 366 Character of, to relieve from bar of statute of limitations, 366 1652 IKDEX. (References are to sections, \'oI. I comprising Sees. 1-810; Vol. II the residue.) NEW PARTIES— Amendment of bill upon filing petition as to, 227 Form of petition to make, 1004 Form of order making petitioner party to the suit, 1264 Petition as to, 227 Petition as to filed by leave of court, 227 Petition as to must be entertained by the court, when, 227 Petition may make party plaintiff or defendant, 227 Process t-o answer petition filed as to, 227 NEW TFdALS— Bill to obtain at law, averments of, 127 Decree in the matter of, 611 Form of bill for on ground of after-discovered evidence, 9456 Form of bill for on ground of fraud, 944 Of action at law, issue directed for trial by jury. 657 Upon issues out of chancery, 067 NEXT FRIEND— , Bill brought by must show pai'ty is a minor. 108 Caption of bill where plaintiff sues as — Xo. 3, 874 Costs, is liable for, when, 864 Form of demurrer to bill by inf.nnt Avithout ne.xt friend. 1017 Infant sues by. 5.3, 285 Insane person may sue by, when, 235. S74, note 4 Introduction of the bill in suit by — Form No. 19, 875 ivlarried woman sues without — Form No. 2 — Xote ,3. 874, also 285 NON-JOIXDER OF PARTIES— Appellate court, raising objections in because of, 91 Demurrer because of, what should contain, 91 Dismissal of bill because of, 92 How and when advantage may be taken of, 91 NON-RESIDENT— Abatement of suit as to non-resident joint obligor, 607 Acceptance of process by outside of state, effect of, 21 Affidavit for attachment on ground of non-residence. 765 Affidavit that defendant is for the purpose of an order of publication, form of, 1093(7 County in which may be sued, 5 Decree need not be rendered against non-resident joint obligor, when, 607 Discontinued, cause may be as to non-resident defendant, wlien. 841 Execution of order of publication on. 17 Form of affidavit that witness is a. that his deposition may be taken. 1093 Members of partnership firm, proceeding must be by order of publica- tion, when, 17 Non-resident corporation may be sued, where. 5 Non-resident need not be joined in suit against firm. when. 7.') Order dismissing bill for failure of plaintiff to give security for costs, form of. 1256 Order of publication against in attachment suit, not necessary, when, 17 Order suggesting non-residence of plaiiitiflF and demanding security for costs, form of, 1185 Personal service of process on, 21 Petition for rehearing by. form of. 1007 Petition for rehearing by non-resident defendant. 241 Service of process on in county where found, other defendants may be served, where, 5 Service of process on by oi'der of publication, 17 Sufficiency of .affidavit in attachment ,is to non-resident, 764 INDEX. 1653 (References are to sections, Vol. I comprising Sees. 1—810; Vol. II the residue.) NON-SUIT— Cannot be taken in equity, 840 NOTICE— By purchaser from fraudulent grantor, evidence of, 541o Doctrine of judicial, principle underlying, 522 Forms — by trustee for sale under trust deed in West Virginia, 1105 for the appointment of a new trustee in a deed of trust, 1108 in a proceeding to transfer propeity out of the state of persons under disability, 1109 notice to creditors in suit agaiast estate of decedent, 1110 of application for an injunction, 1101 of application for receiver — general form, 1102 of application for receiver in suit to foreclose mortgage, 1103 of application for rehearing of decree entered by default, Ill4 of lis pendens, 1246 of application for receiver in partnership suit, 1104 of motion to dissolve an injunction, 1113 of motion to quash attachment in Virginia in vacation, 1248 of sale of infant's lands in suit by guardian, 1106 by trustee of sile under trust deed in Virginia, 1107 of sale of real estate by special commissioner, 1112 of taking an account by a commissioner in chancery. 1116 that a commissioner's report has been completed, 1115 to correct a decree wherein there is clerical error, 1115a to hear petition to sell property of infant, 1098 to hear petition to release dovi^er of insane wife, 1099 to lien holders in suit to enforce judgment liens, 1111 to take depositions, 1100 Matters judicially noticed, 518-521 Motions only made after notice, 838, 839 Of application by petition to remove trust funds or estates, or estate of decedent, out of state, 250 Of application for an injunction, 700 Of application for an injunction, when should be required, 700 Of application for appointment of receiver, generally required, 740 Of application for appointment of receiver, upon whom served, 741 Of commissioner of time and place of taking an account, 634 Of commissioner of completion of his report, 641 Of guardian to sell infant's lands by summary proceeding, 235 Of judicial sale by special commissioner, 671a Of motion to dissolve injunction, when necessary, 712 Publication of notice for sale of church property. 2506 Publication of, of application to remove property of minor or insane person out of the state, 248 Service of to take depositions, 484 Sufficiency of to take depositions, 482 To take depositions, 480 What constitutes reasonable as to time of taking depositions, 481 When motion may be made vsdthout, 836. 837 NUISANCE— Form of bill to enjoin erection of, 949 Form of bill to enjoin by fouling watercourse, 950 Joinder of parties as plaintiff to restrain, 85 NUNC PRO TUNC ORDEKS AND DECREES— When may be entered, 848 1G54 liNDEX. (References are to sections, Vol, I comprising Sees, i— 8io; Vol. II the residue.) OATH— Answer, how verified, by, 411 Answer, joint, how should be verified, 411 Answer must be under, when, 409, 410 Answer, sufficiency of affidavit to, 412 Bill, as general rule, need not be under, 107o Bill, when shoujd be uudsr, lOTa, 40U Bill to perpetuate testimony should be under, 149 Bill de bene esse should be under, 154 Bill of review must be under, when, 218 How administered, 411 Injunction bill should be under, 699 Inteipleader, bill of should be under, 144 Petition for rehearing must be imder, '-!29 Petition for sale of property of. persons under disability, must be under, 235 Plea in abatement must be under, 283 Plea in bar need not be under, when, 390 Keceiver, bill for appointment of should be under, 742 Replication, when should be under, 452 Waiver of to an answer, 409 Waiver of to answer, and how made, 409 \^'ho may administer, 412 OBJECTIONS— Defects of parties raised by demurrer, when, 291, 301a For want of proper parties, how made, 291, 301a How may make to process or its execution, 30 To depositions, how taken, 497 To competency of witnesses, when taken, 531 To filing plea in abatement, how raised, 2!)3« To plea in bar, liow raised, 392 To plea in bar or in abatement, how determined, 392 To report of commissioner, how made, 045, 646 to return of process, how made, 29 To sufficiency of an answer, 413 To summon or process commencing suit, how raised, 27-20 Want of proper parties raised by plea in abatement, when. 291 Want of proper parties raised in court of appeals, when, 291 OBSTRUCTIOKS— To plaintifl's right of suit to relieve from bar of statute of limita- tions, 3G7 OFFICERS— Amendment of return of process by, 31 As parties to suits, 67 Depositions may be taken before what, 478 Of corporation upon whom process may be served, 15 Service of process, when must be by, 13 Service of process, when need not be by, 13 Summons commencing suit directed to what, 12 Verification of pleadings before what, 412 OMISSIONS— In pleadings supplied by amendment, when, 323, 343 ONUS PROBANDI— Affirmative allegations of an answer, 536 Deed, in suit to contest, 536 Ex parte settlement of accounts, 536 No certain rule as to, 536 IKDEX. 1655 (References are to-sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) ONUS PROBANDI — Continued. Plaintifl', generally rests upon, 535 Principles governing, 536 Rests upon party holding the affirmative, 508, 535 Shifts from party holding the affirmative, when, 535 Will, in suit to contest. 536 ORDER OF PUBLICATION— Affida\-it and original summons must precede, 19 Affidavit as to posting, 1 7 Against corporation that has not complied with the statute, 22 Against unincorporated common carrier, 23 Appearance of defendant, time to make after completion of, 35 Can be no personal decree when process served by, when, 20 During civil war so as to supi)0it attachment, 17 Forms of — affidavit for against corporation that has failed to comply with ceitain requirements of statute, 1280 affidavit as to non-residence to obtain — No. 50, 885 affidavit as to posting of in West Virginia — No. .54, 888 affidavit as to unknown defendants to obtain — No. 51, 885 certificate to — No. 53, 837 certificate to posting of in Virginia — No. 55 , 889 in Virginia as to natural person — No. 56, 890 in Virginia as to corporation — No. 57, 890 in West Virginia — No. 52, 886 How posted and published, 24 In what cases may be had, 17 Recital in decree of due execution of, 34 Service of process by on corporation, 18 Service of process by on natural person, 17 Sufficiently executed, when, 17 What it must state, 24 When necessary against n-on-resident member of firm, 17 When not necessary in an attachment suit, 17 \^'hen only can be entered, 17 ORDER OF REFERENCE— Adjournments by, commissioner under, 636 Alternative statements in report under, 652 Confirmation of report of commissioner under, 645 Effect of in creditors' suit, 655 Effect of not excepting to report made under, 647 Exceptions to commissioner's report under, when necessary, 646 Finding of facts by commissioner under, effect of, 650, 651 Forms of — for settlement of executorial and administration accounts, 1199 in creditors' suit to enforce iudgment liens, 1139 in suit against the estate of a decedent, 1138 in suit to surcharge and falsify accounts of a fiduciary, 1140 on guardian's bill to sell real estate, 1205 to expunge scandalous matters, 1165 Introduction of evidence before commissioner under. 637, 638 May be entered by court or judge in vacation, 632 Notice of time and place of executing, 634 Parties entitled to appear before commissioner under, 635 Provisions of, 632, 633 Rights of parties under as to claims, 639 Re-committal of report tmder. 653, 654 Report of commissioner and its return under. 640-642 ■\^Tien cause may be heard on report under, 643 When cause should not be referred to commissioner, 628 1656 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) ORDER OF REFERENCE — Continued. When cause should be referred to commissioner, 629 When reference to commissioner is discretionary with court, 630 When exceptions to report under may be made, 648 Who may file exceptions to leport under, 64i) ORE TENUS— Demurrer may be, when, 29S Evidence on petition to sell infants' lands may be, 825 PARTIES— Abatement in matters of, as to purchase money or otherwise, 41 Account, plaintiffs and defendants in the matter of, 42 Agent, cannot be plaintifl', when, 42a Agent, when should be defendant, 42a Agency, in matters of, 42a Alimony, in matters of, parties plaintiff and defendant, 43. Annulment of marriages, in the matter of, 44 Arbitration and award, in the matter of, 45 Assignee cannot sue in the name of his assignor, 38 Assignee of distrioutee, when may sue, 69 Assignee of vendor's lien, as to suit by, 70 Assignment, in the matter of, 46 As to absent, when should be before court, 37 Assignor, when should be a defendant, 46 Assignor, when necessary party, 46 Assignor, as a nominal party, 46 Attachment, in matters of, 47 Attorney, should not be party, when, 42a Beneficiary, suit should be in name of, when, 38 Bond guarantor of when necessary party. 37 Boundaries, in the matter of the confusion of, 56 By residuary legatee -for himself and other legatees, 39 Cases wherein no misjoinder of plaintiflfs, 88 Church, suit by member of, 39 Classification of, 36 Cloud upon title of real estate, in suit to remove, who may be plaintifl' and who necessary parties to, 48 Contribution, in the matters of, 57 Corporations, in the matters of, 58 Corporation, indispensable party to suit against it. when. 58 Corporation, ]n suits against who not necessary parties. 58 Corporation, in suit against, stockholders parties, when necessary. 58 Corporation, must sue in its own name, when, 58 Corporation, private person cannot sue to set aside ultra vires act of, 58 Corporation, suit against must be in corporate name. 58 Corporation, suit by must be in its own name. 58 Corporation, when stockholders may sue on behalf of, 58 Creditor may file bill aaainst estate of decedent, when. 59 Creditor, on behalf of himself and all other creditors, usual manner of bringing suit, 59 Creditors' bill, when personal representative may file, 59 Creditors' bill, who may file, 59 Creditors' bills, in the matter of, 59 Creditors' bills classification of, 59 Creditors' bills necessary or proper parties to, 59 Creditor, single, when may sue in his own name, .59 Creditors' bills, who must be parties to, 59 INDEX. 1657 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) ■ PARTIES — Continued. Creditor of decedent, when may sue debtor of decedent's estate, 69 Decedent, estate of, personal representative must be party to suit against, when, &i Decedent's estate, in matters pertaining to, 02 Decedent's estate, when personal representative should sue as to, 02 Decedent's estate, when heirs at laAV should sue as to, 62 Deeds of trust, in matters pertaining to, 60 Deeds of trust, who may enforce the lien secured by, 60 Deeds of trust, suit to enforce lien of should be in name of beneficiary, when, 60 Defendants, joinder of, 86 Defendants, joinder of, general rule as to, 86 Defendants, joinder of in various matters, 86 Defendants, misjoinder' of, 89 Defendants, misjoinder of, when no, 89 Distributees, suit by for settlement of estate, necessary defendants to, 69 Dower, assignment of, in the matter of, 61 Drunkenness, in cases of cancellation on ground of, 54 Fiduciary relationship, in cases of cancellation on ground of, 55 fiduciaries,, in matters pertaining to, 63 Formal or nominal, who are, 36 Forms — order making petitioner party to suit, 1264 petition making new parties to suit, 1004 Fraud, in cases of cancellation on ground of, 49 Fraud in the matter of, 64 Fraudulent conveyance, in the matter of, 6.5 Fraudulent conveyance, necessary defendants in suit to set aside, 65 Fraudulent conveyance, who may sue in the matter of, 65 (Seneral observations and principles with reference to, 36 Guardian and his sureties, when may be sued jointly, 66 Guardian and ward, in matters relating to, 66 Guardian and ward, in the matter of, 66 Guardian, when may sue, 66 Guardian, when may sue in his own name, 66 Husband and wife, as to matters relating to, 66a Husband and wife in Virginia, joinder of. 84!) Husband and wife, in West Virginia, joinder of, 84a Importance of, with reference to suit in equity, 36 Inadequacy of consideration, in cases of cancellation on ground of, 51 Infant may sue his guardian, when, 66 Infant must defend by guardian arl litem, 53 Infant, must sue by next friend, 53 Infancy, in cases of cancellation on ground of, 53 Injunction, in matters relating to, 67 Injunction suit, against whom may be brought, 67 Injunction suit by attorney general or other proper officer, when may be maintained, 67 Injunction suit, when sqhool teacher may maintain, 67 Injunction suit, who may maintain, 67 Injunction suit, who necessary or proper parties to, 67 Injunctions, classification of, 67 Insane person, estate of, suit against, 63 Insane person, estate of, suit concerning must be bv committee, when, 63 Insane person, estate of, when not necessary party to suit a,gainst. 63 Insane person, suit against, must be guardian ad litem appointed for, when, 63 1658 INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) PARTIES — Continued. Interest, chaiacter and extent of determining question of, 37 Interest in object of suit, person having necessary party, 37 Joinder of, 84 Joinder of, arrangement -of, 84 Joinder of, different in equity from that at law. 84 Judgments and detreeSj in matters relating to, OS Judgments and decrees, who may sue in relation to, 68 Judgments and decrees, suits relating to, who necessary defend- ants, 68 Legal title, holder of indispensable party, 37 Legal title, holder of, when not necessarj' party. 37 Legatees and distributees, in matters relating to, 69 Legatees and distributees when may maintain suit, 69 Legatees anu distributees, Avhen may maintain suit for personal estate, 69 Legatees and distributees, when may sue jointly or alone. (>!) Legatee or distributee, when may sue to recover personal estate of decedent, 69 Lien reserved in deed payable to third party, 70 Liens, in the matter of enforcement of, 70 Mechanics' lien, necessary defendants in suit to enforce, 70 Mechanics' lien, suit to enforce, how carried on, 70 Mechanics' lien, who may enforce. 70 Misjoinder of, 87 Misjoinder of, effect of, 87 Misrepresentation, in cases of cancellation on ground of. .51 Mistake, in cases of cancellation on ground of, 50 jNlortgages, in the matter of redemption of, 71 Mortgages, in suits to redeem necessary or proper defendants to. 71 il'ortgages, in the matter of the foreclosure of, 72 Mortgages, in the matter of the foreclosure of. who to be party plain- tiff. 72 Mortgages, in suits to foreclose the proper or necessary defendants to, 72 Mortgages, suits to redeem, who may bring, 71 Municipal corporations, in matters relating to. 73 Mimicipal corporation, when may sue in its own name, 73 Municipal corporations, in suits relating to. who should be defend- ants to, 73 Necessary and proper, what are. 36 No inflexible rule as to joinder of. .84 Non-joinder of, how and when advantage taken of. 91 Objection for want of interest in plaintiff, effect of when taken at hearing 38 Partition, in matters of, 74 Partition, in suit for, who may be plaintiffs. 74 Partition, in suits for, who necessary or proper defendants to, 74 Partnership, all members of must sue, when. 7-") Partnership, all members of must be before the court, when. 75 Partnership, bill cannot be maintained, against, when. 75 Partnership, in the matters of, 75 Partnership, one or more members may maintain bill against others, when, 75 Partnership, suit against by creditor, all members of must be parties to. when, 75 Partnership, suit for dissolution of. necessary defendants to, 75 Partnership, who may bring suit against. 75 Pendente litr purchaser not necessary party in suit to redeem mortg- age, 71 INDEX. 1659 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) PARTIES — Continued. Personal I'eprcsentative, foreign, cannot sue, when, 62 Personal representative, when may sue in his own, 62 Persons having no real interest permitted to join, when, 84 Persons holding common interest with others, 3!) Persons, how made parties to suit, 93 Persons, how again made, as to whom suit is discontinued, 94 Plaintiff and defendant, when same person may be, 40 Plaintiff, where he has parted witli his interest in subject matter, 38 Plaintiff having no interest in suit, bill demurrable, when, 38 Plaintiff, when may sue on behalf of himself and others, 39 Plaintiff, character and extent of interest of to enable him to maintain suit, 38 Plaintiff's' joinder of without consent, 84 Plaintiffs, joinder of, general rule as to, 8.5 Plaintiffs, joindei of in various matters, 85 Plaintiffs, misjoinder of, 88 Plaintiffs, misjoinder of, how advantage taken of, 90 Plaintiffs, who may be joined as, 85 Plaintiffs, interest of must be consistent, 40 Proper party, a definition of, 36 Purchaser pendente lite, when may become party, 46 Receiver, may sue or be sued, when, 63 R.eceiver, may sue in his own name to recover receivership property, when, 63 Rule when question of party's interest is doubtful, 38 Specific performance, in matters of, 76 Specific performance, in suit for, who must be defendants to, 76 Specific performance, who maintain suit for, 76 State officers, .when may be enjoined, 67 Subrogation, in the matters of, 77 Subrogation, who may maintain suit for, 77 Subrogation, in suit for who must be defendants, 77 Substantial interest, owner of should be plaintiff, though legal title in another, 38 Suit in name of one plaintiff on behalf of himself and others, 39 Taxpayer, suit by on behalf of himself and others, 39 Taxpayer and expenditure of public funds, in matters relating to, 78 Taxpayers and expenditure of public funds, who may maintain suit with reference to, 78 Taxpayers and expenditure of public funds, suit with reference t-o, how brought by single taxpayer, 78 Taxpayers and expenditure of public funds, suit with reference to, who necessary defendants to, 78 Transposition in joinder of, 84 Trustee in deed of trust as plaintiff', 38 Trustee, nominal, when may sue, 38 Trustee, misappropriation of trust funds by, in the matter of, 60 Trustee of voluntary association, suit by, 39 Trust deed, enjoining sale under, in ihe matter of, 60 Trust sale, suit to set as.le. in the matter of, 60 Trusts and trustees, in matters relating to, 79 Trusts, suits to enforce, who may bring, 79 Trusts, suits with reference to, who may bring, 79 Trusts, suits with reference to, who necessary and proper defend- ants to, 79 Unborn persons, how made parties to suit, 95 Undue influence, in cases of cancellation on ground of, 52 Usury, in matters of, 80 Usury, suit as to, who may bring, 80 IB 00 INDEX. (References are to sections, \'ol. I comprising Sees. 1-810; Vol. II the residue.) PARTIES — Continued. Vendor's lien, in suit to enforce, who may be plaintiff, 70 Vendor's lien, in suit to enforce, who necessary or proper defendants to, 70 Want of proper parties when bill dismissed for, 92 • Waste, in matters of, 81 Waste, suit concerning, who necessary defendants to, 81 Waste, suit to restrain commission of, ',vlio may bring, 81 Waste, suit to restrain commission of, who necessary defendants to, 81 Waste, suit with reference to, who may bring, 81 Who may sue in attachment, 47 Who must be, oG Who must be joined as parties plainti-l's and defendants, 84 Who neither proper nor necessary, 36 Who necessary defendants to an attachment suit, 47 Who not permitted to join as, 84 Wife, when may sue alone, 66a Wife, when must sue or be sued at law, 66a Wills, in matters of contest of, 82 Wills, in the matter of the construction of, 83 Wills, suit to contest, who may bring, 82 Wills, suit to contest, necessary defendants to, 82 Wills, suit for construction of, necessary and proper parties to, 83 Wills, suit for construction of, who may bring, 83 PARTITION— Bill in suit for, what should contain, 128 Decree, final in matters of, 612 Decree, interlocutory appointing commissioners to make. 612 Defendants, who should be in suits for, 74 Form of affidavit to be taken and subscribed by commissioners, 1094 Form of bill for an accounting. 968 Form of bill where some of parties unknown, 969 Form of exceptions to report of commissioner appointed to make, 1133 Form of order appointing comnjissioners to make, 1231 Form of order confirming report of commissioners making, 1232 Form of ordinary bill for, 967 Form of report of commissioners appointed to make that land is not susceptible of, 1123 Plaintiffs, who may be in suits for, 74 Parol is presumed to include coal beneath surface of land, when, 53S Parties, who not necessary in suits for, 74 Report of commissioners appointed to make where partition is made, form of, 1120 PARTNERS— All must be before court as parties to suit. 75 All should be sued, when, 75 Assignee of may bring sviit, 75 Bill, averments of in suit against estat<> of deceased, 129 Bill by must pray for dissolution of partnership, when, 7.t Bill should set out full names of members of firm, when, 129 /Creditors of firm not necessary parties, when, 75 Decree in matters of partnership, 013 Final decree cannot be entered against one partner, when. 613 Form of bill for dissolution of p.irtnership and for an injunction. 970 Form of bill for dissolution of partnership for misapplication of funds, and for receiver ^- short form. 971 Form of caption of bill where plaintiffs sue as — No. 14. 874 Form of caption of bill where plaintiff sues as surviving partner — No. 15. 874 Form of final decree for dissolution of partnership, 1263 INDEX. 1661 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) PARTNERS — Continued. Form of introduction of bill where plaintiffs sue as — No. 31, 875 Form of introduction of bill where plaintiff sues as surviving partner — No. 32, 875 Heirs at law .ind legatees of deceased cannot sue, when, 75 Interlocutory deci'ee referring cause to commissioner, 613 May be made defendant, when, 75 Mortgagee of surviving pfirtner necessary party, when, 75 Non-resident need not be joined in suit, 75 One or more may maintain bill against others, 75 Order of payment of debts of firm, 613 Parties defendant to suit for dissolution of partnership, 75 Purchaser of interest of necessary party, when, 75 Report of commissioner, 613 Special partner not necessary party, when, 75 Suit must be in name of all, when, 75 Surviving partner cannot sue, when, 75 Widow of deceased cannot sue, when, 75 PARTNERSHIP— Bill, averments of in suits concerning, 129 Decree of reference in suit relating to, 613, 629 Decree, final in matters of partnership, 613 Decree when cannot be rendered in favor of partner, 613 Defendants to suits concerning, who necessary and proper, 75 Form of bill for dissolution of, and injunction, 970 Form of liill for dissolution of. and for receiver — .Short form, 971 Form of final decree for dissolution of partnership, 1263 How may sue, 75 Plaintiff, who may be in suit concerning matter of, 75 PAYMENT OF MONEY INTO COURT — Court's control over the funds when paid over, 854 When may be ordered, 852, 853 1 When will not be ordered, 852, 853 PERPETUATION OF TESTIMONY — Bill for, object of, 148 Bill for, essentials of, 149 Form of bill for, 98-i Statute, provisions of as to the, 150 PERSONAL DECREE — Assignee of vendee, cannot be rendered against, when, 584 Attachment suit, cannot be rendered in, when, 583 Capacity in which sued can only be rendered against. 583 Defendant, may be rendered against, when, 583, 584 Defendant must be served with process to authorise, 583 Fraudulent purchaser of pmierty, may be rendered again.st. when, 584 Heir, cannot be rendered against for debt of ancestor, when. 584 Order of publication, cannot be rendered (m. 20 Personal representative, cannot be rendered against, when, 583 Pleadings must authorize, 583 Vendee of mortgagee, may be londered against, when, 584 PERSONAL REPRESENTATIVES — As parties to suits — assignment, in the matter of, 40 contribution, in matters of, 57 creditors' bills, in matters of, 59 decedents' estate, in matters pertaining to, 62 deeds of trust, in mnttp'-a pertaining to, 60 dower, assignment of. 61 drunkenness, cancellation of contracts on ground of, 54 1C62 INDEX. (References are to sections, Vol, I comprising Sees. I— 8io; Vol. II the residue.) PERSONAL REPRESENTATIVES — Continued. As parties to suits — fraudulent conveyances, in matter of, 05 guardian and ward, in matters relating to, 66 liens, in the enforcement of, 70 joinder of as plaintiffs, 85 legatees and distributees, in suits by and against, 69 misjoinder of, 88 mortgages, redemption of, 71 mortgages, foreclosure of, 72 partition, in matters of, 74 partnership, in suits relating to, 75 revivor of suit, when should be in name of, 183 rule as to when must always be party, 62 specific performance, in cases of, 76 usury, in matters of, 80 wills, construction of, 83 ' wills, contest of, executor necessary party, when, 82 Forms of — affidavit to pleading by in Virginia, 1084 affidavit to i>leading by in West Virginia, 1080 bill against an administrator by legatees and administrator of deceased legatee for payment of legacies, 957 bill in a creditors' suit by executor or administrator to subject real estate to the payment of debts, 916 bill of revivor by the original complainant against the executor of the original defendant, 991 bill to surcharge and falsify settlement of, 973 introduction of bill where administrator is plaintiff — No. 25. 875 introduction of bill where administrator with the will annexed is plaintiff — No. 26. 875 introduction of bill where executor is plaintiff — No. 27, 875 introduction of bill where administrator dv bonis non is plaintiff — No. 3U, 875 of caption of bill where administrator is plaintiff — No. S. 874 of caption of bill where administrator with will annexed is plain- tiff—No. 9, 874 of caption of bill where administrator dc hovis non is plaintiff — No. 13, 874 of caption of bill wjiere executor is plaintiff — No. 10. 874 order against, 1254 order for distribution of personal estate by. 1202 order of reference for settlement of accounts of. 1199 plea in bar that plaintiff is not administrator as alleged, because supposed intestnte is living, 1035 report of commissioner in suit to surcharge and falsify settlement of accounts of, 1126 Injunction bond not required to be given by, 702 Personal decree, when cannot be rendered against, 583 PETITIONS — As to new parties, 227 As to new parties, leave of court to file. 227 As to new parties, bill must be amended, when. 227 As to new parties, may be filed by plaintiff or defendant, 227 Attachment, petition disputing validity of. 237 Attachment, petition dispuling validity of. who may file. 23,8 Attachment, petition disputing validity of. when must be filed, 239 Attachment, petition dismitin'T validity of. defenses to, 240 Church, sale of property of petition for. 250f7 Church, petition for sale of property of, proceedings on. 2506 iNULx. 1663 (References are to sections, Vol. I comprising; Sees, i— 8io; Vol. II the residue.) PETITIONS— Continued. Church, pioperty of, when sale of may be ordered, 250c Decedent, assets or estate of, petition to remove, 24t) Decedent, assets or estate of, petition to remove, procedure on, 250 Decree, interlocutory, what is, 230 Definition of, and classes of, 226 Educational association or institution, petition for sale of property of, 250a Educational or benevolent association, petition for sale of property oi, proceedings on, 250J Educational or benevolent association, propertj' of, vvlien court may order sale of, 250c Forms — by church trustees for the sale of church property, 1003 by guardian for lease of infant's lands, 995« by guardian for lease of infant's lands, 906 by guardian to give mortgage or deed of trust of infant's lands, 997 by guardian to be allowed to apply part of the principal to the education or maintenance of the ward, 999 by guardian for permission to submit matter to arbitration, 1000 by husband for release of insane wife's right of dower, 1001 by guardian to remove proceeds of the sale of real estate of the "infant out of the State, 1002 disputing validity of attachment by third party, 1006 for a re-hearing by a non-resident after the entry of a decree upon order of publication in an attachment suit, 1007 for an attachment for disobeying an injunction order, 1272 for leave to file a, bill of review for errors apparent upon the face of the decree, 1009 for leave to file a bill of review upon discovery of new mat- ter, 1010 petition for rehearing, 1005 petition making new parties to suit. 1004 to transfer estate of minor or insane person into another State or country, 998 where the petitioner was proceeded against as an unknown party, 1008 Further relief under final decree, petition for, 234 Infant, insane person or cestui que trust, proceeds of sale of real estate, petition for transfer of, 247 Infant or insane person, estate of, petition for transfer into another state or country, 246 Infant or insane person, petition to remove property of, procedure on, 248 New party, court's duty to entertain petition of, when. 22 1 Property, sale of, for. of persons under disability, 235 Rehearing, petition for, 228 Rehearing, petition for, decree must be interlocutory, 229 Rehearing, petition for, defenses to, 232 Rehearing, petition for, parties to, 231 Rehearing, petition for, procedure on, 233 Rehearing, petition for, requisites of, 229 Rehearing, petition for, under statute, after decree, 241 Rehearing, petition for, under statute, when must be filed, 242 Rehearing, petition for,_ under statute, form and requisites of, 243 Rehearing, petition for, under statute, procedure on, 244 Rehearing, petition for, under stattite, decree on, 245 Rehearing, petition for, will lie, when, 228 Trust funds, personal, petition to remove, 249 160 i INDEX. (References are to sections, Vol. I comprising Sees. i-Sio; Vol. II the residue.) PETITIONS — Continued. Trust funds, petition to remove, procedure on, 250 State, petition, for claims against, when disallowed by auditor, 236 PLAINTIFF— Agency, in matter of, 42a. Alimony, in matter of, 43 Annulment of marriages, in matter of, 44 - Arbitration and award, in mater of, 45 Assignment, in iiiatters of, 46 Attachment, in matters of, 47 Cloud upon title, in suits to remove, 48 Confusion of boundaries, in cases of, 56 Contribution, in cases ofj 57 Corporations, in cases of, 58 Creditors' bills, in cases of, 5!) Deeds of trust, in cases of, 60 Dower, assignment of, in cases of, 61 Drunkenness, in cases of, 54 Estates of decedents, in cases of. 1)2 Fiduciary relationships, in cases of, 55 Fiduciaries, m cases of, 63 Fraud in eases of, 49, 64 Fraudulent conveyances, in cases of, 65 Guardian and ward, in cases of, 66 Husband and wife, in cases of, 66a Inadequacy of consideration and misrepresentation, in cases of, 51 Infancy, in cases of, 53 Injunctions, in eases of, 67 Interests of and right to relief, 38 Joinder of, 85 Judgments and decrees, in cases of, 68 Legatees and distributees, in matters of, 69 Liens, in Uie matter of the enforcement of, 70 Mistake, in cases of, 50 Misjoinder of, 88 Misjoinder of, how availed of, 90 Mortgages, in the matter of the redemption of, 71 Mortgages, in the matter of the foreclosure of, 72 Municipal corporation, in cases of, 73 Names of to be given in bill, 108 Non-joinder of, how reached, 91 Partition, in the matter of, 74 Partnership, in the matter of, 75 Seeking equity must do equity, 119a Several may join to set aside fraudulent conveyance, 85 Specific performance, in matters of, 76 Subrogation, in matters of, 77 Tax-payers and expenditure of public funds, in matters of, 78 Trusts and trustees, in matters of, 79 Unborn persons as, 95 Undue influence, in cases of, 52 Usury, in the matter of, 80 Waste, in matters of, 81 What constitutes misjoinder of, 88 Who may be in matters of account, 42 Wills, in the matter of the contest of. 82 Wills, in the matter of the construction of, 83 PLEADING— Affidavit to, 107ffl, 114, 218, 229, 818 Amendments of, 320, 349 3NUEX. 1665 (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) PLEADING — Continued. Attachment suits in, 47, 114 Decree only entered when authorized by, 573 Plea in abatement and in bar may be filed at same time, 280 Precision required in, 277 Record should show cause heard on, 575 Trusts and trustees, in matters of, 78 PLEAS IN ABATEMENT— Aliens, when may be iiled as to, 286 Anotlier suit, pendency of, cases in which may not be filed, 289, 290 Another suit, plea of the pendency of, 289 Another suit, plea of tlie pendency of, cases wherein may be filed, 289 Bill, plea as to, 288 Certainty and strictness required in, 277 Character or right in which plaintiff sues, when may l)e used as to, 287 Character of, in a court of equity, 276 Classification of, 282 Filed, in bar and in abatement at the same time, 280 Filed, time within which must be, 279 Forms — controverting the existence of the grounds upon which an order of attachment was issued, 1024 of the pendency of another suit, 1023 of want of proper parties, 1020 on the ground of the plaintiff's infancy,, 1021 on the ground of plaintift"s insanity, 1022 order filing plea in abtement of an attachment, 1150 order holding plea in abatement insufficient upon argument, 1137 order setting plea down for argument, 1136 order striking out one plea in abatement, making up issue on another and overruling plea in abatement, upon a submis- sion of the cause to the court, 1283 order striking plea in abatement from the record, 1135 to the jurisdiction of the court, 1018 to the jurisdiction of the court — another form, 1019 Infancy, idiocy or lunacy, and persons of weak minds, plea as to, when may be used, 285 Jurisdiction, to, and their requisites, 283 Jurisdiction, plea to, when need not be filed, 284 Multiplicity of suits, plea that proceeding would cause, 292 Multifarious, plea that bill is, 293 Must give defendant a better writ, 278 Parties, proper, want of, plea as to, 291 Person, plea to the, 285 Puis darrein continuance, plea of, 281 Striking out or withdrawal of, 293a PLEAS IN BAR — Abatement of suit, right to sue within one year thereafter, 369 Answer, distinction between, and a plea in bar, 388 Answer, when must accompany plea, 389 Award, plea of. 383 Award, suit to enforce, when barred, 358 Burden of proof as to the statute of limitations, 371 Burden of proof on joinder of issue on plea in equity, 394 Certain periods of time, deductiop of, to relieve from the bar of the statute of limitations, 368 Classifieation of, 352 Contract, suit to enforce, other than judgment or recognizance, when barred, 358 Contract, suit to enforce, when barred in five years, 358 1666 INDEX. (References are to sections, Vdli I comprising Sees, i— 8io; Vol. II the residue.) PLEAS IN BAR — Continued. Deed of trust lien, statute of limitations as to, 358 Filed, when plea in bar may be, 391 Former adjudication, essential allegations of plea of, 379 Former adjudication of courts other than those of law or equity, plea of, 377 Former judgment, plea, 374 Former judgment, essentials of plea of, 374 Former judgment of foreign state or country, plea of, 375 Former decree, plea of, 376 Essential requisites of plea in bar, 387 Estate of decedent, suit involving, statute of limitations as to, 358 Forms — of a will, 1031 of award, 1032 of bankruptcy, 1040a of dismissal of former suit for same matter, 1027 of judgment at law for same matter, 1028 of release, 1029 of purchaser for valuable consideration without notice, 1033 of stated account, 1030 of the statute of limitations, 1025 of the statute of frauds to a bill for specific performance, 1026 that complainant has no interest in the lands the title of which he seeks to discover, 1037 that discovery would compel defendant to betray confidence as an attorney, 1039 that plaintiff not administrator as alleged, because supposed in- testate is living, 1035 that the discovery would subject defendant to forfeiture, 1038 to a bill of revivor, 1040 to bill of interpleader, 1034 to fjill of diseoverj' that another suit is pending for the same discovery, 1036 Issue on, how tried, 395 Issue on, in equity, how formed, and the scope thereof, 393 Laches as a defense in equity, 364 Laches, characteristics of, 364 Laches, what is, 364 Mechanics' lien, suit to enforce, when barred, 358 Municipalities, running of the statute of limitations as to, 37v; New promise as a relief frAn the bar of the statute of limitations, 366 New promise, what constitutes within meaning of the statute of limi- tations, 366 Obstruction of the right to sue as a relief from the bar of the statute of limitations, 367 Parties, identity of, as to former judgment or decree, 378 Payment, presumption of from lapse of time, as to, 363 Personal action for which no limitation is prescribed, statute of limi- tations as to. 358, 359 Plea of any other statute, 373 Plea, 'the frame of, 390 Purchaser for valuable consideration, plea that defendant is, 384 Real estate, when suit as to recovciy of, barred, 358 Release, plea of, 380 Right to sue, when statute of limitations begins to run against, 361 Settled account, plea of, 382 Setting aside conveyances and other transactions, when statute of limitations begins to run, 3^ Stated account, plea of, 381 INDEX. 1667 (References are to sections, A'ol. I comprising Sees, i— 8io; Vol. II the residue.) PLEAS m BAR — Continued. Statute of limitations, plea of, 353 Statute of limitations may be always relied on by plea, 353 Statute of limitations may be relied on by demurrer, when, 353 Statute of limitations as defense must be raised in some manner, 353 Statute of limitations, iiow pleaded, 354 Statute of limitations by one of two or more defendants, 355 Statute of limitations in cases of fraud and trust, when it begins to run, 356 Statute of limitations, when does not apply, 362 ' Statute of limitations, what will relieve from the bar of, 365 Statute of frauds, 372 Suffieiency of plea in bar or abatement, how determined, 392 Suits of personal nature as to which the statute of limitations is one year, 360 Surety, release of, 386 Time, period of, in which suit barred by statute of limitations, 358 Title in the defendant, plea of, 385 Usury, plea of, 373 PRAYER OF BILL FOR PROCESS— Form of — No. 44, 881 Frame of in the Virginias, 106 Is not essential to the bill, 106 Requirements of, 106 PRAYER OF BILL FOR RELIEF— Either general or special, 105 Form of, for an injunction only — No. 42, 881 Form of for production of deeds, papers, etc. — No. 43, 881 Form of, waiving oath, for an injunction against judgment, declara- tion of trust and of conveyance — No. 41, 881 Forms of, general forms — Nos. 39, 40, 881 Is indispensable, 105 May be in the alternative, when, 105 May contain for discovery, 105 Must be special, when, 105 Usual to insert general or special in bill, 105 PREMISES, THE— Form of the stating part of the bill, 876 Importance of, in the bill, 100 Or stating part of the bill, 100, 108, 109 What stating part of the bill should contain, 100, 108 What stating part of the bill should not contain, 109 PRINCIPAL AND AGENT— Agent cannot file bill in his own name, when, 42a Agent proper party to suit, when, 42o Defendant'.-! attorney not proper party, when, 42n. Principal should not join agent in suit, when, 42a PRINCIPAL AND SURETY— Decree in matter of, 614 Decree in matter of, provisions of, 614 Joinder of as defendants, 86 Form of bill by ward against guardian and his surety, 942 Form of bill by surety to be subrogated to rights of creditor, 977 Release of surety, plea of, 386 PRIORITIES— Appointment of receiver, effect on, 760 Attachment, order of, 809 Assets of decedent, administration of, .59!) Fraudulent conveyances, in the matter of, 600 1668 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) PRIORITIES — Continued. Judgment lieus, enforcement of, 598 Partnership, distribution of assets of, 613 Principal and surety, liability to payment of debt, 614 PROCESS COMMENCING SUIT— Acceptance of service of, 16 Alias, when may be issued, 32 Alias, continuance of original, 32 Amended bill, when, may issue and returnable as to, 13 Amendment of after plea in abatement, 28 Amendment or alteration of, 26 Amendment of the return of, 31 Amendment of the return of, when permitted, 31 Amendment of, when may be made, 20 Amendment of, when may not be made, 26 As to misnomer in, 28 As to defects in, how reached, 29 Case, when may be heard after execution of, 35 Court always open to issue, 11 Decree, recitals in with reference to, effect of, 34 Decree, recitals in v/ith reference to, 34 Defects in or execution of, how maj- be taken advantage of, 30 Defects in or return of not wai-\-ed by appearance, when, 29 Defects in or return of raised by plea in abatement, when, 29 Defects in return of service of, how reached, 29 Distinction between void and voidable, 27 Does not issue on order of court, 11 Effect of acceptance of service of, 16 Family, meaning of as to service of, 14 Forms — order of publication in West Virginia — Xo. 52. 886 order publishing process as to corporation — No. .57. 890 summons commencing a suit in Virginia — No. 48, S8.'> summons commencing a suit in West Virginia — No. 49. 885 In Virginia, must be served by oiRcer, when, 13 In Virginia, on corporation service must be made ten days before re- turn day, 15 In Virginia, service on corporation when it has ceased to exist, 15 In West Viiginia, may be served by officer or any credible person. 13 May be served on return day, 13 May issue on return day, when, 13 Meaning of the words "void" and "voidable,'' 27 Must be returnable to a lawful return day, 13 Must be served in bailiwick of officer, 13 Must issue before return day, when, 13 Objections to on appearance for defects in or return of, 20 Officer to whom directed, when railroad, canal, turnpike, telegraph or insurance company defendant, 12 Order of publication, affidavit must precede, 1!) Order of publication as to members of partnership flrrn, 17 Order of publication as to a corporation in West Virginia, 18 Order of publication as to a corporation in Virginia, IS Order of publication, could not be entered during Civil War, when, 17 Order of publication, how posted and published. 24 Order of publication in attachment suit, when not necessary, 17 Order of publication, posting of, 17 Order of publication, summons must precede, 19 Order of publication, what must state, 24 Order of publication, where entered. 17 Order of publication, when sufficiently executed in West Virginia, 17 iNiiEX. 166D (References are to sections, A^ol. 1 comprising Sees. 1-810; Vol. II the residue.) PKOCESS COMMENCING SVIT — Continued. Older of publication, when suiSciently executed in Virginia, 17 Personal decree, tan be none on order of publication, when, 20 Personal service on non-resident defendant, when, 21 Personal service on non-iesident defendant, effect of, 21 Process, territorial jurisdiction of court issuing, 11 Return of, effect of, 13 Return of service of, what must show when corporation defendant, lo Return of service of, what must show, 14 Returnable as court shall direct, refers to mesne, when, 13 Returnable when, 13 Returnable, may be a.s court shall direct, 13 Service of, by order of publication on natural person, 17 Service of, by order of publication on unknown parties, 17 Service of, cannot be made on Sunday, when, 1.5 Service of, cannot be made on person of unsound mind, 15 Service cannot be made on plaintiff's attorney. I'l Service of, date as to, 2.5 Serx'iee of, effect of return of, 25 Service of, in Virginia wlien niimber of defendants e.vceeds thirty, 17 Service of, must be within court's jurisdiction, 11 Service of, not necessary in the Virginias on persons under disa- bility, 14a Service of, object of, 13 Service of, on corporation, cannot be made outside of state, 15 Service of, on natural person, how made. 14 Service of, on member of defendant's family, 14 Service of, parol evidence to explain. 25 Service of, upon a corporation, how made. 15 Service of, upon corporation that has not complied with certain re- quirements of statute, 22 Service of, upon unincorporated common carrier, 23 Service of, where made, when two or more defendants. 12 Service of, Avhere made when corporation defendant, 12 Service of, upon persons under disability, 14« Sheriff's return upon process — as to a natural person, where service is made by posting a copy at the front door of his usual place of abode — No, 60, 891 where an attachment has been levied — No. 71. 891 where service is made upon a, member of defendant's family — No. 59, 891 where the defendant is served in person — No. 58, 891 where service is made on a corporation on its attorney — 61, 891 where service is ruade upon a corporation upon its president — No. 62. 891 where service is made upon a corporation where service cannot be had rrpon its president or other chief officer — No. 63, 891 where service is upon a corporation that has failed to comply with the West Virginia statute — No. 64, 891 where service is made upon a corporation in West Virginia by delivering a copy of the summons to a depot or station agent — No. 65, 891 where service is made in West Virginia upon a corporation by delivering a copy of the summons to a director — No. 66, 891 where service is made in West Virginia rrpon a forei.gn insrrrance company — No. 67, 891 where service is made in West Virginia upon an unincorporated common carrier — No. 68, 891 where service is made upon a corporation in Virginia — No. 69, 891 1670 INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) PROCESS COMMENCING SUIT — Continued. Sheriff's return upon process — where service is made upon a garnishee in an attachment suit in West Virginia — No. 70, 891 Suit commenced by summons, 11 Suit, when a, is pending, 11, 731 Summons, issuance of, how directed, 11 Time given defendant for appearance after execution of, 35 Time given for appearance of non-resident after execution of, 35 To whom directed when suit brought to recover land, Ti "Usual place of abode,"' meaning of as to service of, 14 Void and voidable, ZT' Voidable, will support judgment when, 27 Waiver of, 33 Waiver of service of, 33 What is alias, 32 What is pluries, 32 What is waiver of, 33 When and in what instance void or voidable, 27 When may. be quashed, 29 When valid, though not directed to any officer, 12 Who may accept service of, 10 PUBLICATION— Affidavit as to posting order of in West Virginia, form of. 888 Affid.ivit for against corporation for failure to comply with certain lequiremenls of statute in West Virginia, 1280 Affidavit must precede order of, 19 Affidavit of non-residence for the purpose of an order of, form of, 1093a Bill cannot be talcen for confessed on order of, 20 Certificate appended to order of, form of, 887 Certificate of publishing and posting in, Virginia, form of, 889 Corporation, service of process on by order of, 18 Form of order of in West Virginia, 886 Form of order of in Virginia as to natural person, 890 Form of order of as to corporation in Virginia — No. 57, 890 Order of as to unknown parties, 17 Order of during late civil war, 17 Order of, how posted and published, 24 Order on not necessary in attachment suits, when, 17 Order of, when sufficient!}' executed, 17 Order of when corporation has not complied with statute, 22 Order of where number of defendants exceeds thirty, 17 Order of, where entered, 17 Original summons must precede order of, 19 Recital in decree of due execution of order of, 34 Personal decree cannot be rendered on order of, 20 Service of process by order of on natural person, 17 Unincorporated common carrier, service of process on by order of, 23 When order of may be directed. 17 R REAL ESTATE— Attachment may be levied upon, 776 County where suit brought to recover or subject to a debt, 1, 4 Decree of sale of must give day of redemption of, 598 Forms of — hill by guardian to lease infant's, 941a bill for partition of, 967 INDEX. 1671 (References are to sections, Vol. I comprising Sees. r-8io; Vol. II the residue.) REAL ESTATE — Continued. Forms — bills to recover for deficiency in, 893, 894 bill to establisii boundaries to, 900 bill to cancel tax deed as cloud upon, 901 bill to cancel deed of apparent title creating cloud upon, 902 bill to cancel contract of sale as creating cloud upon, 90:'. bills to sell infants', 940, 941 bill of injunction against laying of gas pipe upon, 946 creditors' bill to enforce judgment lien against, 915 creditors' bill by personal representative to subject to payment of debts, 916 order appointing receiver to rent, 1235 order appointing commissioners to make partition of, 1231 order authorizing mortgage on infant's by his guardian, 1229 order confirming report of sole of infant's, 1208 order confirming report of commissioners making partition of, 1232 order confirming commissioner's report, and appointing special commissioner to make sale of, 1233 order confirming commissioner's report and directing sale of infant's, 1206 order directing sale of infant's on guardian's petition, 1207 order for specific performance of sale of, 1239 order for partition and dower, and appointing commissioners to assign dower and make partition of, 1265 order for sale of in attachment where defendant lias appeared, 1158 order for sale of upon attachment and order of publication, 1157 order for an account for rents and profits under bill for equity of redemption of, 1204 order of reference on guardian's bill to sell infant's, 1205 order of sale against decedent's. 1238 petition by guardian to sell infant's, 995a petition by guardian to lease infant's, 996 petition by guardian to incumber infant's, 997 petition by guardian to remove proceeds of sale of infant out of the State, 1002 report of commissioners appointed to make partition of, 1120 report of commissioners appointed to make partition of that lands are not susceptible of partition, 1123 report of commissioners making partition of, 1133 Judicial sale of, 671 Mortgage, who may redeem from, 71 Of decedent, how may be subjected to payment of debts, 59 Of decedent, when may be subjected to payment of debts, 62 Of infant or irfsane person, may be sold by guardian or committee 235, 819 Parties to suit to remove cloud upon title to, 48 Partition of, parties to suit for, 74 Receiver of not appointed in vacation, when, 737 Specific performance of contract concerning, parties to suit for, 76 RECEIVERS— Accounts of must be passed before discharge, 761 Advice of the court as to his duties, when receiver may ask, 758 Affida'i'its, use of upon the hearing of the application for the appoint- ment of, 747 Application for appointment of after filing of answer to the bill, 747 Application for appointment of, how made, 742 Appljeation for appointment of, against whom made, 739 1672 INDEX. (Reierences are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) RECEIVERS — Continued. ■ Application for the appointment of, hearing of, 747 Appointed on behalf of all parties, 736 Appointment of, by what court made, 729 Appointment of receiver, effect of upon liens and property rights, 700 Appointment of receiver vi'hile cause i.s pending in the court ol appeals, 733 Appointment of, rests in the sound discretion of the court, 734 Appointment of, what plaintiff must show to obtain, 734 Appointment of, who may apply for, 738 Benefit, if none will result to the party, will not be appointed, 735 Bill for appointment of, requisite allegations of, 745, 746 Bond to be given by, 751 Bond must be given by before receiver can sue, when, 751 Compensation of receiver, 759 Compensation of receiver, character of, 759 Considerations entering into the question of appointment of, 743 Contract cannot be made by a receiver when, 754 Contract, right of to enforce, 755 Counsel, right of to employ, 755 Deed, right of to make for property sold, 755 Definition of receiver, 730 Different kinds of, 729 Discharge because of irregularity of appointment, 761 Discharge of, how may be applied for, 761 Discretion of, instances of the right to exercise, 756 Discharge of receiver, 761 Discharge of receiver, at what stage of the eiuise may be made, 761 Discharge of receiver by operation of law, 761 Discretion of receiver touching his receivership, 756 Duties of a receiver, 757 Foreign receiver, what may not do, 754 Forms — bill for appointment of in partneiship matters, 895 bill for removal of trustee and appointment of, 978 caption of bill where plaintiff' sues as special — No. 11, 874 introduction of bill where plaintiff sues as special — No. 28, 875 notice of application for appointment of — general form. 1102 notice of application for appointment of in suit to foreclose niortgage, 1103 notice of application for appointment of in partnership suit. 1104 order appointing receiver to rent real estate, 1235 order appointing receiver in vacation — general form. 1236 order dissolving injunction and discharging receiver, 1221 order filing cross-bill and appointing receiver as prayed for therein, 1234 General piinciples applying to the appointment of receivers, 734 Implied powers of a receiver, 755 Insurance on property, right of to take out, 755 Inventory of property, duty of receiver to make. 757 In what cases a receiver will be appointed. 731, 732 Leave, of court necessary to sue when. 749 T^eave of court not necessary, when, 750 Mone.y, right to colled, 755 Notice of application for appointment of, 740 Notice of application for appointment of, must be given, when. 740 Notice of application for appointment of, upon whom served, 741 Notice of application for appointment of. how served. 741 Obedience to the orders of court, must render due, 757 Object of the appointment of, 730 ^ IKDEX. 1673 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) RECEIVERS — Continued. Older appointing a receiver, the vacating of, 744 Order appointing may award injunction, when, 748 Order or decree appointing, 748 Order or decree appointing, what to be inserted in, 748 Party to the cause not ordinarily appointed, 743 Possession of property, duty of receiver to take, when, 757 Powers not possessed by, 754 Property over which receiver may be appointed, 752 Property held by receiver must be kept from his own accounts, 757 Purchases cannot be made by a receiver when, 754 Real estate and rents thereof, appointment of iu vacation as to, 737 Rents of real estate, receiver entitled to, when, 753 Right to sue for recovery of property, when, 753 Right to sue for recovery of property in name of receiver, when, 753 Rights and powers of, 753 Skill and personal supervision on the part of the receiver required, 757 Suits by and against, 749 Vacation, appointment of in, 737 When cause is pending so as to appoint a iccoiver, 731 When court will not appoint, 734, 735, 730 Who should be appointed a receiver, 743 Will only be appointed in a pending cause, 731 RECITAI.— Decree in, form of on issue out of chancery entered on verdict of jury, 1278 Decree in, general form of, 1200, 1261 Forms of decrees containing recitals, 113S, 1145 Hearing, of maturing, cause for, 575 In decree, should show what cause was heard on, 575, 570 Of fact found in decree, 575 Of decree of dissolution of partnership and confirming report made, 1263 Order in, general form of, 125!j Order of publication, due execution of. 575 Process, due execution of in decree, 34 REFERENCE — See Okder of Reference. REFORMATION— Bill for, allegations of, 115 i Decree, requirements in, 501 Form of bill to have instrument in the form of a deed declared to be a mortgage, 917 Form of order declaring deed to be a mortgage, 1228 Parties to suits for, .50 REHEARING — Decree on petition for under statute after decree, 245 Defenses to petition for, 232 Filed, what petition for must show to be, 22S Form of petition for, 1005 Form of petition for by non-resident after entry of decree upon order of publication, 1007 Form of petition for where petitioner was proceeded against as an un- known party, 1008 Inteilocutory decree, what is, 230, 566 Petition for, 22S Petition for, in what cases Avill lie. 228 Petition for under statute after entry of decree, 241 Petition for under statute after decree, when may be filed, 242 Petition for under statute after decree, requisites of, 143 1674 INDEX. (References are to sections. Vol. I comprising Sees. i-Sio; Vol. II thek residue.) REHEARING — Continued. Requisites of petition for, 229 Parties to petition for, 231 Procedure on petition for, 233 Procedure on petition for under statute after decree, 244 REINSTATEMENT— Application for of injunction, how made, 716 Cause, discontinued at rules, 253 Of injunction, 716 RELEASE— Consideration for must exist, when, 380 Plea of as bar to bill, 380 Plea of, form of, 1020 RENTS- Equity of redemption, form of decree for an account of upon bill for. 1204 Real estate, can be no sale of if debt can be paid out of. when, 5!I7 Receiver to rent real estate, order appointing, form of, 1235 Reference to ascertain, when should be, 597, 600, 630 Sequestration of, when receivei' appointed for, 732 REPLICATION, THE— Affidavit, when should accompany, 452 Answer, advisable to make replication to, 450 Answer, replication to, effect of, 455 Answer, replication to, admits its sufficiency, 455 Answer, when not necessary to file replication to, 458 Definition and purpose of, 450 Different kinds of replications. 451 Filed, time within which replication may be, 457 Forms — special of defendant to answer of co-defendant. 1078 special to plaintiff to answer in the nature of a cross-bill, 1077 the general replication, 1076 General, cases wherein should be filed. 4.":2 Issue, what matters put in. by general replication. 452 New matter set up in plea or answer, may be avoided, how. 454 Omission of replication to an answer, effect of, 456 Special, how to determine when to file. 453 Special, in what cases should be filed, 453 Special, not now in use, when. 451 Special replication filed when general should be. effect of. 456 Special reply in writing should be filed to answer, when. 456 Withdrawal of replication, 459 REPORTS— Alternative statements in of commissioners. 652 Attachment, of sale under, 1127 Cause, when may be henrd on commissioner's. 643 Confirmation of commissioner's. 644 Confirmation of sale by sperial commissioner, 6S1 Dower, of commissioners to assign, form of, 1110 Effect of not excepting to of commissioners. R47 Exceptions to answer, of commissioner on, form nf, 1125 Exceptions to of commissioner, 646 Exceptions to of commissioners, when may be filed, 64S Exceptions to of commissioners, who may file. 649 Exception to of .sales of speciil commissioners, i;S0 Form of — exceptions to of a coTiiniissioner in chancery. 1130 exceptions to of special commissioner's sale. 1131 ISTDEX. 1675 (References are to sections. Vol. I comprising Sees. 1-810; Vol. II the residue.) KEPORTS — Continued. Forms — exceptions to of commissioners assigning dower, 1132 exceptions to of commissioners making partition, 1133 order confirming of commissioners assigning dowei-, 1196 order overruling exceptions to commissioner's, 1198 order confirming of commissioner and directing sale of infant's lands, 1206 order confirming of sale of infant's lands, 1208 order overruling exceptions to of commissioner's sale of infant's lands, 1210 order confirming of commissioner appointed to make partition, 1232 order confirming, in creditors' suit, 1233 Infant's land, of commissioner as to whether minor's interest will be promoted, form of, 1121 Objections to commissioner's, how made, 64.5 Of commissioner in chancery, form of, 1117 Of commissioner in chancery and its return, 640, 642 Of commissioners appointed to make partition where partition is made, 1120 Of sale of infant's lands by special commissioner, 1122 Of sale by special commissioners^ 679 Of .sale by special commissioner, form of, 1118 Partition among heirs and dower of widow, of commissioners, form of, 1124 Partition, of commissioners that land is not susceptible of, form of, 1123 Re-committedj when will be, 653, 6.54 Surcharging and falsifying fettlement of accounts, of commissioner, form of, 1126 RESCISSION— Bill brought for, allegation of, 11.5 Decree in the mutter of. 591 Forms — bill for of an instrument on the ground of fraud, 904 bill for of contract because act is ultra vires, 914 bill for of contract of sale as creating cloud upon title, 903 bill for of deed carrying apparent title as creating a cloud upon the title of the plaintiff, 902 bill for of instrument on ground of undue influence, 905 bill for of instrument on ground of mental incapacity, 906 bill for of instrument because of infancy, 907 bill for of instrument because of fiduciary relationship of tTie parties, 908 bill for of instrument because of drunkenness. 909 bill for of tax deed as creating cloud upon title, 901 order setting aside conveyance because of fraud, 1201 Joinder of parties in suit for, 85 Parties to suit for, 49 RETURN— Amendment of, 31 Date of. presumplion as to, 25 Defects in, how reached, 29 Of sheriff upon process, forms of, 891 by posting a copy of summons at front door of usual place of abode— No. 60, 891 on natural person on member of defendant's family — No. 59, 891 upon attachment levied upon property — No, 71, 891 upon corporation in Virginia — No. 69, 891 1G76 INDEX. (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) RETURN — Vontinued. Of sheriff upon process, forms of — upon corporation by delivering summons to defendant's attorney — No. 61, 891 upon corporation by delivering copy to defendant's president — No. 62, 891 upon corporation by delivering copy to its trea.surer, secretary or cashier — No. 63, 891 upon corporation which has failed to comply with statute — No. 64, 891 upon corporation by delivering summons to depot or station agent — No. 65. 891 upon corporation by delivering copy to director — No. 66, 891 where defendant is served in person — No. 58, 891 upon foreig-n insurance company — No. 67, 891 upon garnishee in attachment — No. 70, 891 upon unincorporated common carrier — No. 68, 891 Upon summons or process, conclusive, when, 25 REVIEW— Allegations, essential of bill of, 218 Bill of defined, 208 Bill in the nature of a bill of, 224 Bill of will lie, when — decree must be final, 209 Bill of, where filed, 210 Bills of, 208-225 Cases, class of reached by. 210 Court, leave of as filing bill of, 214 Decree, performance of before filing bill of, 221 Decrees subject to on appeal, 567, 5686 Defense to bill for error of law, 222 Defense to bill of for newly discovered evidence, 223 Error apparent on face of decree on bill of, what is, 211 Form of — bill of for error of law, 99.3 bill of for newly discovered evidence, 994 order for leave to file bill of, 1257 petition for bill of for errors of law, 1009 petition of for newly discovered evidence, 1010 Illustrative instances of the use of a bill of, 219 Illustrative instances of the disalloAvanee of a bill, 220 Leave to rile bill of, how obtained, 215 Newly discovered evidence, w .at suflicicnt to maintain bill of, 212 Parties defendant to bill of, 217 Supplemental bill in the nature of a bill of, 225 Time within which bill of may be filed, 213 Who may file bill of, 21 6 REVIVOR— Abatement of suit and its efTeet. 181 Bill in the nature of a. bill of, 187 Bill of, essential averments of, 185 Bills of and supplement, 188 Bills of, 181-190 Defenses to bill of, ISO Form of bill of by the original complainant, against the executor of the original defendant, who had answered the original bill before his death, 991 Motion, by. 190 Name, in v.hose Fuit should be revived, 183 Revived, how suit mny be — bill of. 184 Revived, suit should be by whom, 1S3 INDEX. 1677 (References are to sections, Vol. I comprising Sees, i— Sio; Vol. II the residue.) REVIVOR — Continued. Suit abates when, so as to make necessary, 182 Scire facias, by, 189 RULE— Election between law and equity made on, 289 Form of order overruling demurrer to bill and giving rule to answer, 1184a Judicial sale, purchaser at required to comply with terms of by, 69,0 To answer, 314 To plead, 258 KULES, PROCEDURE AT— Abatement of suit at rules, when, 261 Bill, when must be filed at rules, 256 Cause discontinued at, court may reinstate, when, 253 Defendant, eifect of failure of, to appear and plead at rules, 258 Defendant, time in which must appear at rules, 257 Defendants, when cause may be set for hearing as to part of, 260 Hearing, cause must be set for at rules, when, 259 Maturing cause at rules, observations as to necessity of, 262 Mistake in, when and how corrected, 253 Pleadings, what may be filed at rulea, 254 Pleadings, when may be filed, 251 Rule days, what are, 251 Rule days, when and where held, 251 Rule docket, what it is and where kept, 252 Record of the proceedings at rules, 253 Time allov/ed partie.s in which to plead, 255 What may be done at rules, 254 S SALES— Abatement of purchase money of sale of land, parties to suit for, 41 Adjournment of judicial, 673 Bill or petition in proceeding to sell land of persons under disability, averments of, 818 Bond for application of proceeds of sale of land of persons under dis- ability, 828 Caveat emptor^ rule of applies to judicial, 687 Commissioner to sell cannot bid or become purchaser at, 674 Conduct of judicial sale of land, 672 Confirmation of judicial, 681 County where suit brought to subject land to, 4 Creditors' bills to subject land to, allegations of, 117 Decedent, sale of land of, decree for, 599 Decree in attachment involving sale of land, 590 Decree in creditors' suit involving sale of land. 596-600 Decree 1o sell estate of persons under disability, 826 Deed of trust, sale of land under, parties to suit regarding, 60 Dower, can be no, subject to of widow, 599 Effect of upon status of estate of persons under disability, 829 Enforcement of bids made at commissioner's, 677 Estate of decedent, sale of land of, parties to suit for, 62 Exceptions to report of judicial, 680 Forms — < answer of infant and guardian ad litem to bill or petition for sale of land of infant, 1064 bill by committee of insane person to sell estate of such per- son. 960 bill by guardian to sell lands of infant in Viro-inia. 940 bill by guardian to sell lands of infant in West Virginia, 941 1678 INDEX. (References arc to sections, \'ol. I comprising Sees, i— 8lo; Vol. II the residue.) SALES — Continued. Forms — bill, by committee of lunatic to sell lands of latter setting out specific bids, 1252 church trustees, petition by for sale of church property, 1003 creditors' bill, for sale of land to satisfy lien, 915 decree' authorizing sale of church property, 1184 decree confirming commissioner's report of sale of infant's land, 1206 decree confirming sale of infant's land and directing investment of proceeds thereof, 1208 decree confirming sale under attachment, form of, 1161 decree enforcing vendor's lien by sale of land, 1226 decree for foreclosure of mortgage by sale of premises, 1203 decree for sale of personal property upon attachment and order of publication, 1156 decree for sale of real estate upon attachment and order ol publication, 1157 decree for sale of real estate upon attachment upon defendant's appearance, 1158 decree for sale of personal estate upon attachment after defend- ant's appearance, 1159 decree for sale of perishable property upon attachment. 1160 decree for sale of property involving relation of principal and surety, 1.237 decree for sale of lands of decedent, 1238 decree overruling exceptions to commissioner's report of sale of infant's lands and requiring purchaser to comply with terms of, 1210 decree referring cause on guardian's bill to sell estate of in- fant, 1205 decree upon petition of guardian to sell estate of infant and au- thorizin'j sale thereof, 1207 mechanics' lien, bill to sell land to satisfy, 965 order entering rule against purchaser at judicial sale for failure to comply with purchase, 1209 petition of guardian for sale of infant's lands, 995a vendor's lien, bill to sell land to discharge, 966 Guardian ad litem in suit to sell lands of persons under disability, 820 Inadequacy of price as ground for setting aside judicial. 682. 684 Investment of proceeds of sale of land of persons under disability. 827 Judgment liens, sale of land to satisfy, decree in reference to, 596-598 Judicial sale, decree should prescribe terms of, 671 Land, effect of special commissioner's failure to give bond on sale of, 670 Liens, sale of land to discharge, parties to suit for, 70 Liens, sale of land to satisfy, decree for, 608, 609 Liens, sale of land to satisfy, allegations of bill for, 124 Mortgages, sale of land to satisfy, parties to suits for, 71, 72 Notice of judicial must be given, 671o Of property belonging to persons under disability. 812 Of property of persons under disability, who may make, 816 Of property of persons under disability, necessary parties to suits for, 817 Order of, of church property, 250c Petition for of property of persons under disability, 235, 818 Petition for of church property. 250o Possession, right of, of purchaser at judicial, 689 Principal and surety, sale of land of. decree for. 614 Proceedings on petition for of church property, 2506 INDEX. 1679 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) SALES — Continued. Purchaser, how compelled to pay purchase money, 690 Purchaser, interest of at judicial, 678 Receipt of bids at judicial, 675 Reference to commissioner, before sale of land must be, when, 62C, 63(j Report of judicial, 679 Rescinding of judicial, 688 Reversal of decree of, effect of upon title of purchaser, 685, 686 Summary proceeding by petition to sell lands of persons under dis- ability, 825 What property of persons under disability may be sold, 819 SCIRE FACIAS— Revival of suit by, 18 SCANDAI^- Answer must not be scandalous, 416 Bill must not contain scandalous matter, 110 Objections on ground of, how raised,' 111 What matter is scandalous, 110 SECURITY FOR COSTS— Affidavit to relieve from giving hy poor person, form of, 1095 Dismissal of bill for plaintiff's failure to give, form of order, 1256 Failure to give, dismissal of suit for, when, 873 How given, 873 Order suggesting non-residence of plaintiff and demanding, form ot, 1185 When may be required, 873 SEQUESTRATION— Receiver appointed for of rents and profits of lands, 732 SERVICE OF PROCESS OR NOTICE— Acceptance of. 16 Amendment of the return of, 29, 31 As to date of the return of, 25 Personal upon non-resident defendant, 21 Service of by order of publication, 17, 18 Sheriff's return of, various forms of, 891 Upon a corporation, 15, 18, 22 Upon an unincorporated common carrier, 23 Upon corporation that has not complied with statute, 22 Upon a natural person, 14 Upon infants and insane persons. 14ffl Upon member of defendant's familv, 14 Waiver of the, 33 Who may take advantage of a defect in the return of, 30 SIGNATURE — Answer must be signed by defendant 'and counsel, when, 408 Bill must be signed by council. 107 Bill must be signed either by counsel or plaintiff, 107 Of witness to deposition not essential to its validity, 489 Petition, when must be signed by counsel, 227, 229 Petition must be signed by party filing it. 227 Usual for counsel to sign defendant's name to answer, 408 When bill generally signed by counsel only, 107 Where signature omitted court will permit it to be added, 107 SPECIAL COMMISSIONERS — Adjournment of sale by public proclamation, by the. 673 Bids at sale of, discretionary with court to accept, 678 Bids at sale made by fnforcement of, 677 Bids, receipt of at sale made by, 675 1(380 INDEX. (References are to sections. Vol. I comprising Sees, i— Sio; Vol. II the lesidue.) SPECIAL COMMISSIONERS — Continued. Bids, rejection or withdrawal of at sale of, 676 Breach of duty, how special commissioner may be proceeded against for, 691 Cannot purchase or bid at a judicial sale, (i74 Cash payment of purchase money, disposal of by the commissioner upon receipt of, 692 Compensation of, 694 Considerations governing court in setting aside judicial sale because of inadequacy of price, 682 Court, power of as to report of sale made by. 680 Debt payable installments, what decree should piovide, 671 Description of property in notice of judicial sale, 671a Dower, assigimient of by, 695 Exceptions to report of sale made by, 680 Exceptions to report of sale of, grounds of, 680 How appointed and the dutij^s of, 668 Interest of purchaser in the property sold by, 678 Judicial sale, as to the adjournment of, by the, 673 •Judicial sale, course pursued to set aside for inadequacy of price, 684 Judicial sale, decree must provide for notice to be given of, 671a Judicial sale, effect upon of commissionei''s failure to give bond, 670 Judicial sale, inadequacy of price as ground of setting aside, 682, 683, 684 Judicial sale may be made privately or publicly, when, 671 Judicial sale, manner of conducting, 672 Judicial sale, manner of selling property at. by the. 672 Judicial sale, no title passes at, when commissioner making fails "^o give bond, when, 670 Judicial sale, rule of caveat emptor applies to. 687 Judicial sale should be on reasonable credit. 671 Judicial sale should be made by, at the time and place given in the notice thereof, 672 Judicial sale should be made by the commissioner in person. 672 Judicial sale, setting aside for inadequacy of price in Virginia. 683 Judicial sale to be made by. decree must prescribe terms of. 671 Judicial sale, who generally appointed to make, 668 Motion to set aside sale for inadequacy of price usuallv acompanied by up-set bid, 682 Must give bond before makinn; sale and decree must so provide. 669 Notice of judicial sale, to be given by, 671a Notice of sale, certificate of clerk that bond has been given must be appended tu, 670 Possession of property bought at judicial sale, right of purchaser to, 689 Purchase by, at judicial sale is voidable, 674 Purchase money, how payment of may be compelled, 690 Purchaser at judicial sale, when relieved from purchase. 687 Purchaser at sale made by, becomes quasi party to suit, 678 Purchaser, rights of relate back to day of sale, when, G78 Removal of, 693 Report of sale made by, 679 Report of sale of, objections to, 680 Report of sole of, objections to, when should be made, 680 Report of sale of, rests in discretion of court to confirm, 681 Report of sale of, principles applying to question of confirmation and determining court's action in regard thereto, 681 Rescinding a judicial sale. 688 Sale made liy, without bomi given is invalid. 670 INDEX. 1681 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) SPECIAJL COMMISSIONERS — Continued. Title of purcliasei- at judicial sale, effect upon of setting aside decree, 685, 686 Who may act as, 668 SPECIFIC PERFORMANCE— Bill for, -what should be averred in, 130 Decree, form of enforcing of contract of sale of land, 1239 Decree, form of for reformation and, 1240 Decree in suit for, its requirements and provisions, 615 Form of bill for by vendor against vendee, 974 , Form of bill for by vendee against vendor, 975 Form of bill for, upon parol contract partly performed, 976 Form of decree for, striking out one plea in abatement, making up issue on another and overruling plea in abatement, upon a submission of the cause to the court, 1283 Parties defendant, who necessary or proper in suit for, 76 Reference to commissioner to repoit on title in suit for, 629 Who may bring suit for as party plaintiff, 70 STATE, THE— Claim against, how payment enforced when not allowed by auditor, 236 STATUTES— Abatement of suit as relief against limitation, 369 Alimony, decree in the matter oi, 589 Answer, frauds, form of, 1059 Answer, limitations, form of, 1060 Attachment, decree in the matter of, 5'JO Burden of proof as to limitation, 371 Deduction of certain periods of time as relief against limitation, 368 Deed of trust or mortgag-e lien, limitation as to, 358 -Estate of decedent, limitation of right of suit against, 358 Frauds, answer in the matter of, 434 Frauds, plea of, 372 Limit.ation against right to sue, when begins to lun, 361 Limitations, answer in the matter of, 435 Mechanics' and laborers' liens, limitation as to, 358 New promise as relief irom limitation, 366 Obstructions of right of suit as relief against limitation, 367 Of frauds, form of plea of, 1026 Of limitations against municipalities, 370 Of limitations, as to suits concerning real estate, 358 Of limitations does not apply, when, 362 Of limitations, form of plea of, 1025 Of limitations, period of time in which light barred, 358 Of limitations, plea of, 353 Of limitations, plea of by one of two or more joint defendants, 355 Of limitations, to set aside conveyances and other acts, 357 Of limitations, when begins to run as to frauds and trusts, 356 Of limitations, who may plead, 354 Personal actions, limitation as to, 358, 360 Usuiy, answer in the matter of, 436 Usury, plea of, 372 What will relieve from limitation, 365 STENOGRAPHER— Evidence ?nay be taken by before commissioner, when, 638 STIPULATIONS AND AGREEMENTS OF PARTIES— As to proof taken on former trial, 847 As to the use of depositions, 847 In reference to evidence, 847 1682 INDEX. (References are to sections, Vol. I comprising Sees, t— 8io; Vol. II the residue.) STIPULATIONS AND AGREEMENTS OF F ARTIES — Continued. Should be in writing, 847 Waiving the taking of proof, 847 When not valid, 847 STOCKHOLDERS— Bill of with reference to corporate matters, averments of, 131 Form of bill by for dissolution of corporation, 912 Form of bill by for annulment of ultni vires act by corporation, 914 Suits by, concerning corporate acts, 58 When may sue as to matters pertaining to the corporation, 58 SUBROGATION— Defendants, who necessary and proper to suit for, 77 Form of bill in suit for, 977 Parties plaintiff who may maintain suit for, 77 SUGGESTION— Answer of garnishee, 804, 805 Debt authorizing decree against garnishee, 806 Decree against garnishee, can be none, when, 808 Decree against garnishee, essentials of, 810 Defenses by garnishee. 802 Garnishee, who may be suggested as, 799, 800 Garnishee necessary party to suit; 801 Objections to attachment proceeding by garnishee, 807 Of indebtedness to summon as garnishee, 799, 800 Of non-residence for security for costs, 873 Of non-residence of plaintiff and demanding security for costs, form of order, 1185 Proceedings against garnishee upon appearance, 803 SUIT— , Commencement of, 11, 12 Consolidation of, 553-.555 County where brought, I-IO Decree in, 566-626 Hearing of, 556-565 Parties to, 36-95 Pendency of another, 289, 290 Procedure in at rules, 251, 262 Receivers, by and against, 749. 750 Revival of, 181-190 SUMMONS— Acceptance of service of, 16 Affidavit and summons must precede order of publication, 19 Alias, what is and when may be issued, 32 Alteration or amendment of, 26 Amendment of after plea in abatement thereto, 28 Amendment of return of, 31 As to date of return upon, 25 As to order of publication during civil war, 17 Attachment suit, when order of publication not necessary in, 17 Beyond what territory cannot extend, 11 By whom may be served, 13 Clerk's office always open to issue, 11 Defects iil, how reached, 29 Defects in return of, how corrected, 29, .11 Directed to issue, by whom, 11 Effect of acceptance of service of, 16 Effect of service of, when return of service conclusive, 13, 25 INDEX. 1683 (References are to sections, Vol. I comprising Sees, i— Sio; Vol. II the residue.) SUMMONS — Continued. JVrms — affidavit as to unknown defendant — No. 51, 885 affidavit of posting order of publication in West Virginia, 888 affidavit of defendant's non-residence — No. 50, 885 certificate to be appended to order of publication, 887 certificate of publishing and posting order of publication in Vir- ginia, 889 commencing suit in Virginia — No. 48, 885 commencing suit in West Virginia — No. 49, 885 order in Virginia publishing process as to corporation — No. 57, 890 order of publication in Virginia as to natural person, 890 order of publication in West Virginia, 886 return of when served on member of defendant's family — No. 59, 891 return of when served by posting at front door — No. 60, 891 return of when served on attorney of corporation — No. 61, 891 return of when served on president of corporation — No. 62, 891 return of when served on treasurer of corporation — No. 63, 891 retutrn of when served on corporation that has not complied witn statute — No. 64, 891 return of when served on railroad company by delivering copy to depot or station agent — No. 65, 891 return of when served on director of corporation — No. 66. 891 return of when served upon foreign insurance company — Xo. 67, 891 return of when served upon unincorporated common carrier — ■ No. 68, 891 return of service upon corporation in Virginia — No. 69, 891 return of when served upon garnishee — No. 70, 891 sheriff's return upon when served in person — No. 58, 891 How directed and to whom, 12 How order of publication is published and posted, 24 How served upon natural person, li Infants and insane persons need not be served with, 14a Issuance of an amended bill, 338 May be issued before amended bill filed, 13 Must be properly returnable, 13 Order of publication against corporation, 18 Party served must be Tnember of defendant's family, when, 14 Personal service of on non-resident, 21 Presumption as to place bf service of, 13 Recitals in decree with reference to, 34 Recitals in decree with reference to service of, 34 Return of service, what must show, 14 Service of by posting- at front door of defendant's residence, 14 Service of by private person, 13 Service of on corporation which has not complied with statute, 22 Service of on natural person by order of publication, 17 Service of upon corporation, how made, 15 Service of upon infants, 14a Service of upon insane person, 14a Service of upon unincorporated common carrier, 23 Service of the, 13 Service of when defendant is not found, 14 Suit commenced by, II Time given defendant to enter appearance after service of, 35 Usual place of abode, meaning of, 14 Void if not properly returnable, 13 1684 INDEX. (References are lo sections, Vol. 1 comprising Sees. 1-810; Vol. II the residue.) SUMMONS — Continued. Waiver of and how made^ 3.i Waiver of service of^ 33 What must be done to obtain order of publication, 17 What order of publication must state, 24 When can be no personal decree on order of publication, 20 When can not be amended, 26 When good though not directed to proper officer, 12 When may be amended, 26 When order of publication is sufficiently executed, 17 When order of publication necessary as to non-resident, 17 When returnable, 13 When service of may be made, 13 When void and voidable, 27 Where must be served, 11 Where order of publication must be entered, 17 Who may take advantage of defect in, 30 Who may take advantage of defect in return of, 30 SUNDAY— Service of summons on, 13 Summons not issued on, 13 SUPPLEMENTAL BILLS— Amendment in lien of, 177 Court, lea\c' of should be obtained to file, 173 Defenses to, 179 Difference between and amended bills, 170 Distinction between and amended bills no longer obtains, where, 170 Filed, may be when, 172 Forms — amended or supplemental bill, 986 amended and supplemental bill — another form, 987 amended or supplemental bill — a further form, 988 In the nature of a. bill of review. 178 Leave to file, how obtained, 174 Must be consistent with original, 171 Parties to, 176 Original bill in the nature of, 180 Requisites of, 175 SURCHARGING AND FALSIFYING ACCOUNTS— Accounts of fiduciary prima facie correct, when, 132 Bill, what must aver, 132 Errors considered on bill, 132 Form of bill to surehage and falsify settlement of accounts, 973 Form of order of reference m the matter of, 1140 When bill should not be referred to commissioner, 628 SURETY— Contribution, when may sue for, 67 Decree for contribution by. 593 Decree in matter of principal and, 614 Decree of sale involving property of principal and, form of, 12S7 Form of bill against guardian and surety by the ward, 942 Form of bill for contribution by. 911 Form of bill to be subrogated to rights of creditor, 977 Joinder of in suit as defendant, 86 .Joinder of in suit as plaintiff, 85 Parties to suit for contribution, 57 Parties to suit for subrogation, 77 SUSPENSION— Of operation of order or decree, form of, 1244 INDEX. 1685 (References are to sections, Vol. I comprising Sees. i-Sio; Vol. II the residue.) TAXES— Bill for cancellation of tax deed, form of, 901 , Illegal, defendants to suits with reference to, 78 Illegal, who may sue with reference to, 78 Injunction to restrain illegal, form of bill, 954 Statute of limitations not applicable to suit to cancel tax deed, 362 Tax deed, allegations of bill in suit to cancel as cloud on title, 116 Tax deed as cloud on title to realty, parties to suit to cancel, 48 Tax deed, bill to set aside must allege tender of taxes paid and in- terest, 119a TAXPAYERS AND THE EXPENDITURE OF PUBLIC FUNDS— Amendment of bill in suit with reference to, 324 Bill must be brought on behalf of other taxpayers, 78 Defendant in suit relating to, 78 Form of bill to enjoin creation of illegal indebtedness, 953 Form of bill to restrain collection of illegal tax, 954 Plaintiff, who may be in suit with reference to, 78 Taxpayer must sue on behalf of himself and other taxpayers, 78 TESTIMONY— See Witnesses. All objections to waived but that excepted to, 501 Deposition, exception to because of incompetency of witness, 499 Incompetency of evidence, how objection to waived, 500 Incompetency of in West Virginia, 524-527 Incompetency of in Virginia, 528-530 Stage of cause at which competency of determined, 531 TITLE— Bill must clearly set forth plaintiff's title or right to relief, 108 Cloud upon, averments of bill to remove, 116 Cloud upon, parties to suit to remove, 48 Forms — bill for cancellation of tax deed as creating cloud upon, 901 bill to cancel deed carrying apparent title as creating a cloud upon, 902 Holder of legal necessary party to suit, when, 37 Holder of legal title must be party to suit for partition, when, 74 Of purchaser at judicial sale, effect of reversal of decree on, 685, 686 Speeifle performance, holder of lej>al title in suit 'for must be party, 76 To real estate must be cleared before sale, 596 TRESPASS— Form of bill of injunction against cutting timber pending ejectment, 945 Injunction to, averments of bill in, 122 TRUSTS AND TRUSTEES— Accounting by trustee, averments in bill for, 133c Appointment of trustee, averments in bill for, 133 Beneficiary as party plaintiff in suit relating to trust, 79 Decree instructing trustee, 618 Decree in the matter of the diversion or misapplication of trust funds, 619 Decree for the appointment of trustee, 616 Decree for the removal of a trustee, 617 Establishment and enforcement of trust, averments in bill for, 133p Form of order authorizing sale of church property by trustees, 1184 Form of order perpetuating injunction to a trust sale, 1220 Form of petition by church trustees for sale of property, 1003 1686 INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) TRUSTS AND TRUSTEES — Continued. Forms — bill by cestui que trust to enjoin the cutting of timber, 947 bill by trustee for advice as to his duties, 979 bill for cancellation of written instrument arising from relation- ship of, 908 bill for removal of trustee for misconduct, 978 bill for the establishment and enforcement of a trust, 980 bill to enjoin sale of property under trust deed, 951 bill to enjoin sale of property under deed of trust given to building and loan association, 952 Investment of trust funds, averments in bill for, 1336 Mortgage or lease of trust property, averments in bill for, 133a Parties plaintiff in suit to enforce trust, who may be, 79 Parties defendant in suit relating to trust, who necessary, 79 Party plaintiff in suit to remove trustee, 79 Petition of church trustees for sale of church property, 250a Petition for removal of personal trust funds out of the State, 249 Petition to remove trust property out of the State, 247 Procedure on petition for removal of personal trust funds out of State, 250 Proceedings on trustee's petition for sale of church property, 2506 Pursuit of trust funds, averments of bill in suit for, 133g Removal of trust funds to another State, averments in bill for, 133d Sale of trust property, averments in bill for, 133a Suits between trustees and their beneficiaries and with third persons, averments in the bill, 133f Trustee as party plaintiff in suit to enforce trust, 79 When court will order sale by trustees of church property, 250c U UNBORN PERSONS— Parties to a suit, how made, 95 UNCERTAINTY— In the bill and what may consist in, 100 UNKNOVS^N PARTIES— Petition for rehearing by, 241 Petition for rehearing by, form of, 1008 Parties to suit, how made, 17 USURY— Answer of, in the matter of, 436 Bill in matters of, averments in, 133ft Decree in the matter of, 620 Defendant, who should be in suit relating to, 80 Plaintiff, who may be in suit relating to, 80 Who may plead usury, 436 VACATION— Alimony, decree for may be entered in, when, 589 Appointment of receiver in West Virginia, 737 As to the appointment of a receiver in Virginia, 737 Bill may be amended in, when, 333 Bill may be dismissed for improper amendments made in, 333 Decrees may he entered in, when, 570 Defendant in attachment may give bond and discharge attachment in, 790 INDEX. 1687 (References are to sections, Vol. I comprising Sees, i— 8io; Vol. II the residue.) VACATION — Continued. Dissolution of injunction in, notice of motion required, 712 Forms — ,, injunction by judge to restrain commission of wsiste, 1211 injunction without bond, 1213 notice of application for the appointment of a receiver, 1102 notice of motion to quash an attachment in Virginia, 1248 notice of motion to dissolve an injunction, 1113 order appointing receiver — general form, 1236 order directing payment of temporary alimony to defendant, 1194 order dissolving injunction, 1216 order directing payment of temporary alimony and restraining husband from disposing of or incumbering his property, 1282 Husband may be ordered to deliver to wife her separate estate in his hands in, 539 Order of reference may be entered in, 632 VARIANCE— Amendment of bill to correspond with proof, 551 Evidence must be confined to matters in issue, 550 Proof must correspond to case made in bill, 551 VENDORS— Bill, form of to enforce lien of, 966 Bill to enforce lien of, averments of, 124 Deciee for the enforcement of lien of, 608 Decree, form of to enforce lien of, 1226 Compensation for excess of land conveyed by, 41 Compensation or abatement by vendee for deficiency in land sold in suit against vendor, 41 Lien of, how reserved, 124 Parties to suit for excess of land or abatement of purchase money by and against vendees and vendors, 41 Parties to suit to enforce lien of, 70 VENDORS' LIENS— Bill to enforce, requisites of, 124 Decree in suit to enforce, 608 Defendants, who should be in suit to enforce, 70 Form of bill to enforce, 966 Form of decree enforcing, 1226 Plaintiffs, who may be to enforce, 70 VENUE— See County Wheee Suit May be Brought. Actions, classification of at common law, 10 Actions, classification of in the Virginias, 10 Common law, at, all actions either transitory or local, 10 Contract, suit for rescission of, where brought, 4 Corporation, where may be sued, 1, 3 Corporation, foreign, where may be sued, 5 County where cause of action arises, suit may be brought in, I Defendant, residence of as determining place of suit, 2 Defendant's residence, meaning of, 2 Divorce, where suit for may be brought, 2 Fraud, cases involving, where suit brought, 4 Fraudulent conveyance, suit to set aside, where brought, 4 Insurance company, where may be sued, 6 Judge of circuit, when interested, where suit brought, 1, 8 Laborers' lien, suit to enforce, where brought, 4 Non-resident, where may be sued. 1. 5 Specific performance, suit for, where brought, 4 Statutes, prescribing venue, all not exclusive, 10 1688 INDEX. (References are to sections, Vol. I comprising Sees. 1-810; Vol. II the residue.) VENUE — Continued. Statutory regulations, general, concerning, 1 Statute prescribing place of trial, governs, 1 State, when suit on behalf of, where to be brought, 1, 7 Suit may be brought where defendant resides, 1 To recover land, 1 To subject land to a debt, 1 Trust fund, suit to follow, where brought, 4 Vendor's lien, suit to enforce, where brought, 4 When more than one defendant, 2 VOLUNTARY CONVEYANCE— Bill to set aside, averments of, 121 Fraudulent, when, 65 Plaintiffs, who may be in suit to set aside, 65 W Vi'ASTE— Defendants to suit against commission of, 81 Form of bill to restrain cutting of timber by mortagagor in possession of the premises, 947 Form of order m vacation restraining commission of, 1211 Plaintiff, who may maintain suit against commission of as, 81 WAIVER— Appearance to suit no waiver of defect in process or its return, when, 29 Appearance to the cause waiver of process and service thereof, when, 33 Answer, waiver of right to except to, 419 Evidence, objections to, waiver of, 501 Exception to answer, when waived, 419 WIDOW— Bill, allegation of widowhood in for assignment of dower, 119 Cannot maintain suit for partition, 74 Decree of sale, can be none subject to dower of, 599 Forms — bill by for assignment of dower, 9.31 bill by for assignment of dower against alienee of a former hus- band, 932 exceptions to report of commissioners assigning dower, 1132 form of order appointing commissioners to assign dower, 1195 order confirming report of commissioners appointed to assign dower, 1196 order directing payment of a gross sum in lieu of dower, 1197 Necessary party to suit to sell land of decedent, when, 62 Plaintiff usually in suit for assigirment of dower, 61 WIFE— Claim of against husband not ba.rred, when, 361 WILLS, CONSTRUCTION OF— Bills, setting out instrument in suit for, 138 Decree in suit for the, 622 Defendants, necessary or proper, to suits for, 83 Form of bill for the, 983 Form of decree for, 1245 Plaintiff, who may bring suit as for, S3 WILLS, CONTEST OF— As to setting aside verdict en issue of devisai^it vel non, 667 As to the trial of the issue derifini'it rrl vov before the jury, 666 Bill, averments in, 134 Court where issue of devisavit vcl non is triable, 665 INDEX. 1689 (References are to sections, \'ol. I comprising Sees. 1-810; Vol. II the residue.) WILLS, CONTEST OF — Continued. Decree in suit to contest a will, 621 Evidence in the matter of, 545, 547 Form of bill to set aside a will — general form, 981 Form of bill to set aside a will because of undue influence and mental incapacity, 982 Forms — order directing issue devisavit vel non, 1224 order setting up lost will, 1244 order upon verdict of jury finding against the will, 1243 order upon verdict of jury finding for the will, 1242 Issue of devisavit vel non is matter of right, 657 Parties defendant, who are necessary in, 82 Parties plaintiff, who may be in, 82 What only can be done in suit for, 664 WITNESSES— Answer of ought not to be prepared in advance of deposition, 489 Attendance of before officer taking depositions, 488 Attendance of before officer laking depositions, how compelled, 488 Competency of, 523, 534 Continuance because of absence of, 472 Deposition of, by whom written out, 489 Deposition of may be taken in shorthand, how, 489 Examination of before officer taking depositions, 489 Examination of may be conducted in public or private, 489 Husband and wife for and against each othei' in Virginia, 532 Husband and vi'ife for and against each other in West Virginia, 533 Incompetency of in Virginia where contract made with agent, 530 Incompetency of may be waived, how, 500 Incompetency of persons as in Virginia, 528. 529 Incompetency of witness, exceptions to deposition because of, 499 Interested party not competent, when in West Virginia, 524-526 Interrogatories, examination of on, 489 Leading and other improper questions, objections to, how raised, 50S^ Memory of may he refreshed, how, 489 Must be sworn, when,' 489 Personal transaction or conimunication with deceased or insane person, what is so as to render incompetent, 527 Refusal of witness to be examined after attending for purpose of, 489 WRITS— See Pbocess Commencing Suit — Summons.