Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. 550 all is common 41. 75. Whensoever any sale of property shall b any decree or order of a circuit superior court of law may appoint a commissioner or commissioners to ma allow them such commissions for their trouble as to the sonable: Provided, That if all parties interested in suc neys or counsel in court, shall concur in naming such court shall appoint the commissioners so named for suci sales made under a decree rendered by any of the couri wealth, by a special commissioner or commissioners appointed for the purpose, the same commission shall be allowed to such commissioner or commissioners on the amount of the sale or sales so made by him or them, as is now allowed to sheriffs for making or collecting money on executions, and no other fee or reward whatever, other than such necessary expenses as may have been incurred by the commissioner or commissioners in carrying the decree into effect. Act of Mar. 21, 1836, Ses. Acts 1835-6, c. 45, § 1, p. 34.] [The courts of this commonwealth in construing the act passed on the twenty-first day of March, 1836, (preceding clause,) shall in no case allow any greater commission on any sale made under a decree in chancery, including the collection and paying / over the proceeds thereof, than is allowed by the before recited act. And if in any case a sale shall be made by one commissioner or other officer, and the collection and paying over the proceeds thereof, be made by another commissioner or other officer, it shall be the duty of the court rendering the decree, under which the sale and collection may have been made, to divide and apportion the commission between the commissioners and other officers, executing the decree or decrees, as shall be deemed equitable and just. Act of Mar. 13, 1840, c. 52, § 1, p. 45.] 42. § 76. The said circuit superior courts of law and chancery, respectively, shall have power to appoint commissioners in chancery, not exceeding two(a) for each court, for taking and reporting such accounts or other matters as such courts shall commit to them to be examined, stated and reported. And if any such commissioner shall die or resign in vacation, the judge of the circuit, may, if he see cause so to do, appoint some fit person to supply his place. [Whenever a commissioner in chancery shall hereafter be appointed by any circuit superior court of law and chancery, or the judge of any such court in the vacation thereof, or by any county or corporation court of this commonwealth, such commissioner shall, before entering on the duties of his office, take an oath before some judge of the superior courts, justice of the peace, or alderman, that he will faithfully, impartially, and justly perform the same, according to the best of his skill and judgment. Act of Jan. 25, 1834, Ses. Acts 1833-4, c. 60, p. 74.] The duties of such commissioners in chancery, and the manner of taking, stating and reporting accounts by them, and their fees and compensation for the same, shall be regulated by the laws now in force regulating the proceedings, and ascertaining the fees and compensation of the commissioners of the former superior courts of chancery. 43. § 77. The judges of each of the said circuits may, in vacation, direct an account(1) to be taken in any cause depending in any of the courts of chancery. Act of Jan. 6, 1836, Ses. Acts 1835-6, c. 48, p. 35. (a) It shall be lawful for the judge of the circuit superior court of law and chancery for the town of Petersburg, either in term time or in vacation, to appoint another commissioner in chancery for the said court; and the commissioner so to be appointed shall be subject, in all respects, to the laws now in force or hereafter enacted, respecting commissioners of the superior courts of (1) The court may direct an account of Mode of stating executor's account. See Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109. himeir respective circuits whenever such account would be directed by the court if in session. Whenever a commissioner, engaged in taking an account in vacation, shall doubt as to the principles on which the account should be taken, and shall doubt of the propriety of admitting any item of debit or credit, contended for by a party, such commissioner may state in writing the points on which he shall doubt, and submit the same to the judge of the circuit in vacation, who may thereupon decide the question or questions so submitted to him, and the commissioner shall govern himself accordingly but on such points submitted, no judge shall hear any arguments of counsel, except by consent of parties. : 44. 78. The said commissioners in chancery shall be, and they are hereby empowered to administer an oath or affirmation, in all cases to them referred by their respective courts, wherein it shall be necessary to examine witnesses on oath or affirmation; and if any person sworn or affirmed by any of the said commissioners, by virtue of this act, shall give any evidence under such circumstances, as would have constituted the same to be perjury if given in the presence of a court of record, the same shall be deemed perjury to all intents and purposes. 45. §79. And the commissioners in chancery shall and may issue subpœnas for witnesses to attend before them, to be executed and returned in like manner as subpœnas issued by the clerks of such courts; and if a subpaœna be issued by a commissioner in chancery and served upon the witness or witnesses named therein, and he, she or they shall fail to attend, according to the requisition of such subpæna, such commissioner shall report such default; and thereupon such proceedings shall be had before the court, to which such report shall be made as would be had if such witness or witnesess had been summoned to such court to give evidence on a trial therein depending, and had made default and moreover, such witness or witnesses shall be liable to such action for damages, at the suit of the party aggrieved, as he, she or they would have been liable to for a default in court as aforesaid. 46. 80. The said circuit superior courts of law and chancery may authorize and empower any one or more persons in each county and corporation within their respective circuits, to take the depositions of witnesses in any cause or causes depending in their courts,(4) who shall for such service be allowed such compensation as shall be fixed upon by the said courts respectively; and the said commissioners may issue their tickets for the sums allowed by said courts for such service, and deliver them to the sheriffs and serjeants of the several counties and corporations wherein the party or parties live for whom they are rendered, at the same time that the clerks of the courts thereof are directed by law to deliver their tickets; and the several sheriffs and serjeants shall collect and account for them in the same manner, and under the like penalties, and shall have the same allowance for collecting and insolvencies, as are prescribed in the case of the clerks of the said county and corporation courts. 47. § 81. The said commissioners for taking depositions are hereby empowered to administer an oath or affirmation in all such cases wherein it shall be necessary to examine and take the depositions of witnesses on oath or affirmation; and if any person, sworn or affirmed by any of the said commissioners by virtue of this act, shall give any evidence under such circumstances as would have constituted the same to be perjury, if given in the presence of (4) See act of Feb. 3, 1834, Ses Acts 18334, c. 62, § 2, p. 75, by which it is provided, "that the depositions of witnesses in suits depending in any court of this commonwealth, may hereafter be taken and certified by any commissioner, appointed by any cir cuit superior court of law and chancery within this commonwealth for the taking of depositions; and depositions so taken and certified shall have the like force and validity, as if the same had been taken and certified by two justices of the peace. Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109. ΤΟ a court of record, the same shall be deemed perjury, to all intents and pur and the said commissioners shall and may issue subpœnas for witnesse attend before them, to be executed and returned in like manner as subpænas issued by clerks of such courts; and if a subpœna be issued by commissioners under authority of this act, and served upon the witness or witnesses named therein, and he, she or they shall fail to attend according to the requisition of such subpana, such commissioner shall report such default; and thereupon such proceedings shall be had before the court to which such report shall be made, as would be had if such witness or witnesses had been summoned to such court to give evidence on a trial therein depending and had made default and moreover such witness or witnesses shall be liable to such action for damages, at the suit of the party aggrieved, as he or they would have been liable to, for a default in court as aforesaid: Provided, That no witness shall be compelled by any subpana from such commissioner to go out of the county in which he resides. : 48. 3. The commissioners appointed by the several courts of chancery, to state and settle accounts, shall be allowed for their services a sum not exceeding one dollar for every hour actually employed in performing the duty assigned to him, of which the oath or affirmation of the commissioner shall be prima facie evidence. In ascertaining the time employed, the commissioner shall not include any, that he may have spent in going to or from the place of taking the account, or in waiting for the parties; nor shall he be entitled to any fee at all until he shall have verified his account by oath or affirmation; and if any person who may be required to pay any commissioner's fee, shall deem the same to be too high, and shall tender to the commissioner bond with sufficient surety to pay so much thereof as the court shall allow, such commissioner shall be compelled to return the report in the same way as if the fee had been paid. 49. § 4. When any commissioner shall have given notice to the parties to attend him, for the purpose of taking an account, he shall regularly adjourn his proceedings from time to time, until he shall have completed his report; and when he shall have completed it, unless he be otherwise ordered by the court, or it shall be otherwise agreed by the parties, he shall retain it for the space of ten days, for the examination of such of the parties as may choose to attend; and who, without being at the expense of taking a copy, may inspect the same, and make such objection or exceptions as he or they may think proper and it shall be the duty of the commissioner to state and report the same, with any evidence relating thereto : and the decrees, orders and notices, under which such commissioners act, shall be returned by them, with their reports, without being copied as parts thereof. No commissioner, in making out any account in a case referred to him, shall copy into such account, or into his report, any paper or document in the cause: In making up an account, from another previously stated or settled, he shall not copy such prior account into his new account, but taking such prior account as the basis of his statement, he shall correct the errors, and supply the defects thereof, by such additional statement as may be necessary. Every thing improperly copied into a commissioner's account, shall be expunged on the application of either party, at the costs of the commissioner; and if any report shall be recommitted, on account of the culpable negligence or misconduct of the commissioner, the costs occasioned thereby shall be paid by such commissioner. 50. § 5. It shall be lawful for the parties to take affidavits, before a single magistrate, to be laid before the commissioners as evidence respecting any matter of account before them: Provided, That reasonable notice be given to the opposite parties. Act of March 9, 1836, Ses. Acts 1835-6, ch. 44, p. 34. 51. § 1. After reports made by the commissioners appointed by the several courts of chancery in this commonwealth to state and settle accounts to them referred, shall have been returned to the court thirty days preceding any term, the cases shall be heard upon such reports, unless there be good cause shewn to the contrary. Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109. 52. § 57. The said circuit superior courts of law and chancery shall respectively have power to appoint (2) attorneys to prosecute for the commonwealth in their courts, and to allow them such compensation for their services as they shall deem reasonable; not exceeding, however, in any case, the sum of one hundred dollars per annum, for the court of one county, except that of the county of Henrico; and the allowance so made shall be certified by the court, and paid out of the public treasury. And the attorney for the commonwealth for the circuit superior court of the county of Henrico, shall be allowed a salary of three hundred dollars, as heretofore. 53. § 58. Whenever judgment shall be rendered for the commonwealth, in any circuit superior court of law, upon a prosecution for a misdemeanour, the penalty whereof is not ascertained by law to be less than thirty dollars, there shall be taxed in the bill of costs a fee for the commonwealth's attorney, of ten dollars, (3) instead of the fee heretofore taxed. And when judgment shall be rendered for the commonwealth in such court, in any other case, wherein it hath been heretofore used to tax an attorney's fee, there shall be taxed hereafter a fee of five dollars: Provided however, That this section shall not be construed to extend to those cases in which a higher fee is allowed by law, than those hereby directed to be taxed. 54. § 59. No attorney for the commonwealth in any circuit superior court of law and chancery, shall be at liberty to resign his appointment, without the leave of the court, unless he shall have given to the judge of the court, in which he shall be attorney, at least thirty days notice of his intention to resign. 55. § 16. The judge of the general and superior courts, who shall be elected and assigned to each of the said circuits, to hold the said superior courts thereof, shall so arrange the business of the courts, as shall be, in his opinion, or as shall be found in practice, most conducive to the convenient, regular, orderly, advised and speedy dispatch of the same. 56. § 14. Where any river, or other water course or bay, shall lie between any counties within the commonwealth, the said circuit superior courts of law and chancery for the counties on each side, shall have concurrent jurisdiction over so much thereof as is opposite to the respective counties; and the said circuit superior courts for those counties lying on the waters bounding the state, shall have jurisdiction over such waters opposite the counties, as far as the jurisdiction of the state extends. 57. § 22. The said circuit superior courts of law and chancery, respectively sitting in chancery, shall have general jurisdiction over all persons and in all causes in chancery within their respective counties(a) or corporations, and in all other matters now cognizable in the said superior courts of chancery, (2) The prosecutors for the commonwealth in each county hold their offices at the pleasure of their respective courts. Ex parte Louis C. Bouldin, gen'l ct. June T. 1836. (3) Where there are several joint defend ants, and they do not sever in their defence, only a fee of $10 will be taxed. The Com. v. Hooper et al. 2 Virg. Cas. 223. (a) The superior courts of chancery may entertain jurisdiction in all cases where their process can be served on the defendant within their respective districts, though his domicil and also the land in controversy be in a different district. Hughes v. Hall, 5 Munf. 431; and see Aldridge et al. v. Giles et al. 3 H. & M. 136; Massie v. Watts, 6 Cranch, 160. Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109. which shall or may be transferred to them from the former superior courts of chancery, or which may be hereafter brought before them, whether by original process, appeal allowed from any inferior court, certiorari, or other legal means; and they shall have concurrent jurisdiction with the county and corporation courts, in all causes in chancery whatsoever; and jurisdiction in all such cases as by any statute are or shall be made cognizable therein.(b) (b) The extension of the jurisdiction of courts of law to cases that were formerly exclusively of equitable jurisdiction, has not destroyed the jurisdiction of the courts of equity; to effect which, negative words must be used by the legislature. See Winn v. Bowles, 6 Munf. 23; Kemp v. Pryor, 7 Ves. jun. [249]; Bromley v. Holland, 7 Ves. jun. [19]; Wilkins v. Woodfin, 5 Munf. 183. In cases of actual fraud, a court of equity has concurrent jurisdiction with a court of law in relieving against the fraud. In these cases, equity follows the law and gives relief to the same extent. And, therefore, where a creditor comes into equity to set aside a conveyance tainted with actual fraud, of which the grantee had notice, the conveyance will be set aside in toto. Garland v. Rives, 4 Rand. 282; Poore v. Price, 5 Leigh, 52. If it be doubtful whether relief can be obtained at law, equity has jurisdiction. Spotswood v. Higginbotham, 6 Munf. 313; Weymouth v. Boyer, 1 Ves. jun. 417; Ludlow v. Simond, 2 Caines' Cas. in Err. 1, 54; Marshall v. Colvert et al. 5 Leigh, 146. If the rights of a great number of claimants are involved, 'tis a sufficient ground to sustain the jurisdiction of equity. Roane, J. in Pleasants v. Pleasants, 2 Call, 342; and see Mitford's Plead. 117-118, 3d ed. And if a debt be due from a partnership, and one of the partners resides out of the commonwealth, the creditor may properly obtain relief in chancery. Williams v. Donaghe's ex'r, 1 Randolph, 300, 305. "The principle settled on solemn argument and due consideration, in a variety of cases, and, among others, those of Terrel v. Dick, 1 Call, 546; Turpin v. Thomas, 2 H. & M. 139; Morris et al. v. Ross, 2 H. & M. 408; Syme et al. v. Montague, 4 H. & M. 180; De Lima v. Glassell's adm'r, 4 H. & M. 369; ought not now to be disturbed; which is, that where a cause has been once fully heard and decided in a court of common law, having competent jurisdiction of the case, a court of equity ought not to interfere, unless fraud [Poindexter v. Waddy, 6 Munf. 418,] or surprise [Price's ex'r v. Fuqua's adm'r, Munf. 68,] be suggested and proved, or some material adventitious circumstance had arisen, which could not have been foreseen or guarded against." Fenwick v. M'Murdo et al. 2 Munf. 244; Smith v. M'Iver, 9 Wheat. 532. The rule has been long established, that a court of chancery will not entertain a bill for the purpose of allowing a defence which might have been made at law, unless some good reason be shewn why that defence was not made in the court of law. This rule is founded on the principle, that there ought to be an end of litigation; and that, consequently, when a matter has been once fairly investigated and decided in one forum, it shall not again become the subject of controversy in another. It was intended as a shield for the party who had prevailed at law. But, if he does not choose to avail himself of its benefit, if he voluntarily goes into the merits of the case, and, in his answer, admits facts, which, if they had appeared in the court of law, would have there produced a different result, neither the rule nor the principle of the rule is violated by pronouncing a decree, justified by his own admissions. Vanlew v. Bohannan, &c. 4 Rand. 537; Eyre v. Everett, 2 Russell, 381. But, if these circumstances were foreseen and could have been guarded against, a court of equity will not relieve. Tarpley's adm'r v. Dobyns, 1 Wash. 185; Le Guen v. Governeur et al. 1 Johns. Cas. 436; Barker v. Elkins, 1 Johns. Ch. R. 465-6. Where a plaintiff suffers a verdict and judgment to go against him at law, equity will not relieve him by granting a new trial, on the ground of surprise at the trial at law by unexpected evidence, unless he was prevented by fraud or accident from suffering a non-suit. Oswald, Deniston & Co. v. Tyler, administrator of Hancock, 4 Rand. 19, and p. 338. After a trial at law, a court of equity will not grant a new trial, merely because injustice has been done; but, the party applying for the new trial must shew that he has done every thing that could be reasonably expected from him to obtain relief at law. A bill of discovery to obtain evidence which might have been useful in a trial at law, must be filed pending the suit at law, unless some sufficient excuse is shewn why it was not filed at that time. Faulkner's adm'x v. Harwood, 6 Rand. 125. After verdict and judgment at law, equity will not grant a new trial, on the ground of newly discovered evidence, unless the applicant has used proper diligence to procure such evidence before the trial at law, or the case is involved in great doubt and obscurity. Arthur v. Chavis, 6 Rand. 142; and under special circumstances, equity will |