Act of March 8, 1819-January 1, 1820. R. C. ch. 69.

been heretofore used and practised in the courts of chancery in Virginia.(g) Nov. 1792, c. 64, R. C.

Act of December 21, 1818–January 1, 1820. R. C. ch. 66.

83. § 46. Although any of the defendants, whether debtors or others, in any suit instituted in any superior court of chancery, should be absent from the commonwealth, the court may nevertheless proceed to a hearing, and decree therein, as in the case of absent debtors having effects within this commonwealth. And in suits against such absent defendants, it shall be lawful for the court in which the same may be depending, to direct publication to be made in any newspaper printed within this commonwealth, which, in their opinion, is best calculated to apprise the absent defendant or defendants of the pendency of such suit. 1787, c. 64, R. C.; 1806, c. 26.

Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109.

84. 18. The rules, and the dockets, in and of causes and matters in chancery, and the rules, and the dockets, in and of causes and matters at common law, in the said courts pending, shall be kept separate and distinct from each other. And the decrees and orders in chancery shall be entered in separate and distinct order books, from those in which the judgments and orders at common law or in other matters shall be entered. But the rules for causes in chancery, and the rules for causes at common law shall be held in the clerk's office on the same days.

85. 29. The process, practice and course of proceedings in the said circuit superior courts, as courts of common law, or as courts of probat, and generally in the exercise of all the jurisdiction transferred to them from the former superior courts of law, shall, as nearly as may be, mutatis mutandis, be conformed with the practice, and be regulated by the laws regulating the proceedings of and in the former superior courts of law: so also, the process, practice and course of proceedings in the said circuit superior courts, as courts of chancery, and generally in the exercise of all the jurisdiction transferred to them from the former courts of chancery, shall, as nearly as may be, mutatis mutandis, be conformed with the practice, and be regulated by the laws regulating the proceedings of and in the former superior courts of chan

out every ease, and in every stage, to determine, according to its discretion, whether it does, or does not, want that assistance. Pr. Lord Ch. Eldon, in Hampson v. Hampson, 3 Ves. & Beam. 42; and see Smith et al. v. Carll et al. 5 Johns. Ch. R. 118.

If the court before whom the issue is tried should be dissatisfied with the verdict, that dissatisfaction must appear on the record, either by certificate, or bill of exceptions. Stannard v. Graves, ex'r of Blaydes, 2 Call, 369.

A verdict not satisfactory to the judge, is not usually, satisfactory to the chancellor. Southall v. M'Keand et al. 1 Wash. 336, but after three, (Stannard v. Graves, ex'r of Blaydes, 2 Call, 369,) or two, (M'Rae's ex'rs v. Wood's ex'r, 1 H. & M. 548,) concurring verdicts, he is not bound to be dissatisfied, merely because the judge certifies against them. If the chancellor be satisfied, he is not obliged to grant a second trial, though the verdict be certified to be con

trary to evidence. Ross v. Pines, 3 Call, 568. And if there be contrary and conflicting evidence, the chancellor should be satisfied. Carter v. Campbell, 1 Gil. R. 159.

When an issue is directed, the application for a new trial must be made to the court directing the issue; but 'tis otherwise when the court directs an action to be brought though with special instructions; in this case, the motion must be made in the court of law. Ex parte Kensington, Cooper's Ch. Cas. 96, 4 Mau. & Sel. 195; Apthorp et al. v. Comstock et al. 2 Paige, 482, 487.

On the trial of an issue, a bill of exceptions for an alleged misdirection of the judge will not lie; the regular course is to apply to the court, which directed the issue for a new trial. Armstrong v. Armstrong, &c. 3 Mylne & Keene, 45.

(g) See Pryor v. Adams, 1 Call, 394; Hampson v. Hampson, 3 Ves. & Beam. 42; Smith v. Carll, 5 Johns. Ch. R. 118.

Act of April 16, 1831, Ses. Acts 1830-31, ch. 11. Sup. R. C. ch. 109.

cery except in such particulars, wherein such practice and course of proceedings may be altered, modified, or any wise affected, by the provisions in this act contained.

Act of December 21, 1818-January 1, 1820. R. C. ch. 66.

86. § 34. All process issuing from either of the courts hereby established,* shall bear teste by the clerks of the courts respectively, and be made returnable to the first Monday in any month after the award of such process; or to the first or tenth day of the next term: Provided always, That where process is made returnable to the first Monday in any month, there shall not be more than ninety days between the teste and return day of such process. And the return of such process, to such day executed, shall be effectual, whereon to ground any subsequent proceedings; and, whenever such process shall not be executed, the clerk of the said court is hereby authorized and required to issue another like process upon the application of the party suing out the former process. 1812, c. 16; 1814, c. 16.

87. 32. All process, of every nature and kind, in cases where the said courts shall have jurisdiction, may be issued, directed to the proper officer of any county in the state, and shall be by him executed and returned to the court from which it emanated. 1812, c. 15.

88. § 35. Where any person, plaintiff or defendant, in any suit depending in either of the said courts, shall be dead, it shall be lawful for the clerk, during the recess of the court, upon application, to issue process, to bring into court the representative of such deceased person. Ibid. [No suit in equity shall abate by the death or marriage of the plaintiff, but it shall be lawful for the court, upon motion without notice, to order the same to be conducted in the name of the heir, devisee, executor or administrator of any deceased plaintiff, or the husband of any feme plaintiff, without serving any scire facias on the defendants, unless cause be shewn to the contrary and if on the motion of such husband or representative, he be not made a party to the suit, the defendant may, at his election, either have a scire facias for that purpose, or if the proper parties are not made at or before the second term after such death or marriage shall have been suggested on the record, he may have the suit discontinued unless good cause be shewn to the contrary. Act of March 7, 1826, Ses. Acts 1825-6, c. 15, § 2; Sup. R. C. c. 103, p. 130.]

89. § 36. Decrees nisi, taking bills for confessed, orders of publication against absent defendants, and orders to proceed in the names of the representatives of deceased parties, may be entered at rules in the clerk's office of the respective courts, subject to the control of the court, in the same manner that other proceedings at the rules are now subject to such control. Ibid. [See post. No. 151.] [Hereafter orders of publication against absent defendants may be so made as to require their appearance at rules. Acts of 1840, c. 53, § 4, p. 47.]

90. 74. All process issuing from the said courts respectively, shall be executed by the [sheriff] or his deputies, or other proper officer, (as the case may be,) and may be executed at any time before the return day thereof; [See ante, No. 35,] and if any process shall be executed so late that the [sheriff] or other officer hath not reasonable time to return the same before the day of appearance, and thereupon any subsequent process shall be awarded, the [sheriff] or other officer shall not execute such subsequent process, but shall return the first process by him executed, on which there shall be the of proceeding in the courts of chancery. Sup. R. C. ch. 103, p. 130.

* See act March 7, 1826, c. 15, p. 15, Ses. Acts 1825-6, to alter and reform the mode

Act of December 21, 1818-January 1, 1820. R. C. ch. 66.

same proceedings, as if it had been returned in due time. 1792, c. 64, R. C. ; Feb. 26, 1816, c. 8.

Act of March 7, 1826, Ses. Acts 1825-6, ch. 15. Sup. R. C. ch. 103.

91. 1. Every writ of subpoena instituting a suit in any superior court of chancery in this commonwealth, shall, after the direction to summon the defendant to appear at the time and place therein mentioned, to answer the bill of complaint, contain a provision or notification to this effect: "and unless he, she or they, (as the case may be,) shall answer the said bill within [two months after the return days of the subpæna, acts of 1840, c. 53, § 4, p. 47,] the court will take the same for confessed, and decree accordingly;" and it shall be the duty of the officers serving such subpœna, to leave with the defendant or defendants, a copy thereof; and upon the return thereof executed, if the bill be filed at or before the return day, unless the defendant or defendants shall, within [two] months, appear and plead, answer or demur, the plaintiff may either have the cause set for hearing without having any decree nisi served on the defendant, or may proceed to compel the defendant to answer; and in either case the same proceedings shall be thereafter had, as are now authorized by law: Provided however, That the defendant may, at any time before a final decree, be allowed to file his answer, or plead or demur; but the cause shall not be sent to the rules, or continued therefor, unless upon good cause shewn: And provided also, That if the bill of the plaintiff or plaintiffs shall not be filed at or before the return day of the subpæna as aforesaid, the suit so instituted shall, for want of such bill, stand thereby dismissed. Nothing in this section contained shall be so construed, as to prevent the plaintiff, in any suit instituted before the commencement of this act, from proceeding therein, in the same manner as if this act had never passed.

Act of December 21, 1818–January 1, 1820. R. C. ch. 66.

92. § 78. Upon the complainant's dismissing his bill, or the defendant's dismissing the same for want of prosecution, the complainant shall pay costs, to be taxed by the clerk of the court; for which costs, an attachment, or other process of contempt, or an execution may issue at the election of the defendant, returnable on any return day. Ibid.

93. § 79. The complainant may amend his bill before the defendant or his attorney hath taken out a copy thereof, or in a small matter afterwards, without paying costs; but if he amend in a material point, after such copy obtained, he shall pay the defendant all costs occasioned thereby. Ibid.

94. § 80. If the defendant shall not appear on the day of appearance, (which in all cases shall be the second day after the term to which the subpœna is returnable,) an attachment shall be awarded and issued against him, returnable to the next term, which being returned executed, if the defendant doth not appear, or being brought into court upon any such process, shall obstinately refuse to answer, the complainant's bill shall be taken as confessed, and the matter thereof decreed accordingly. Ibid. Superseded by act of March 7, 1826, ante, No. 91..

95. § 115. If any defendant or defendants shall be in custody upon any process of contempt, and be brought into court by virtue of a writ of habeas corpus, or other process, and shall refuse or neglect to enter his or her appearance, according to the rules of the court, or appoint an attorney of the court to do the same for him, the court, in such case, may direct an attorney to enter an appearance for the defendant or defendants, and thereupon such proceedings may be had, as if he or they had actually entered an appearance;

Act of December 21, 1818-January 1, 1820. R. C. ch. 66.

but if such defendant or defendants shall be in custody, at the time a decree shall be made, upon refusal or neglect to enter an appearance, or to appoint an attorney as aforesaid, or shall be forthcoming so as to be served with a copy of the decree, then such defendant or defendants shall be served with such copy, before any process shall be taken out to compel the performance thereof; and if such defendant or defendants shall die in custody before such service, then his heir, if any real estate be sequestered or affected by such decree, or if only personal estate, his executor or administrator shall be served with a copy, in a reasonable time, after such death shall be known to the plaintiff, and who is such heir, executor or administrator. Ibid.

96. § 81. The defendant within three calendar months [see ante, No. 91] after his appearance and bill filed, shall put in his answer, to be filed with the clerk in his office; at the expiration of which time, if no answer be filed, the clerk, upon request, shall issue an attachment, returnable to the next court; and if no answer be filed upon the return of such attachment executed, or a copy thereof left at the defendant's usual place of abode, or last place of residence, the complainant's bill shall be taken as confessed, and the matter thereof decreed; and if the attachment be returned not executed, an attachment with proclamation, and such subsequent process of contempt, may issue, as was heretofore issuable out of the general court sitting in chancery in like Ibid.**

cases.

97. § 82. Or, if the defendant, in any suit in a chancery district court, does not file his answer within three months [see ante, No. 91] after the plaintiff shall have filed his bill, having also been served with a subpœna at least three months before the said time for filing his answer, the plaintiff may proceed to take his bill for confessed, and proceed in the same manner as in the case of an attachment returned "executed."(b) Jan. 15—April 1, 1807, c. 103, ed. 1808.

98. § 83. No process of contempt shall issue, unless the subpœna be returned, served by a sworn officer, or affidavit be made of the service thereof. Nov. 1792, c. 64, R. C.

99. § 84. Every defendant may swear(c) to his answer before any judge of the superior courts of chancery or of the general court, or any justice of the peace. Ibid.

100. § 9. [From the filing of the bill until the final hearing of any case, either party may, without any order of court, obtain general commissions and

**The several acts concerning the practice of our courts of chancery in such cases, all contain the same provision, referring to the practice of the general court sitting in chancery, before the revolution. What was that practice? The practice of the high court of chancery of England. See Acts 1748, 5 Stat. Larg. 485, and 1753, 6 Stat. Larg. 346. From Mr. Leigh's note. The constant and undisturbed practice of the court is binding, as the law of the court, without positive order. Brown v. Bruce, 2 Meriv. 1, 2.

(b) Can a plaintiff on a bill taken pro confesso have a decree for his claim, without documents or other evidence to support it, query? See Coleman v. Lyne's ex'r, 4 Rand. 454. See Williams v. Corwin et al. 1 Hopk. Ch. R. On a bill taken as confessed, and an order of reference thereon to a master, such allegations of the bill as are distinct and positive, are to be taken as true, without proof, and such allegations as are indefinite, and such demands of the complain

ant as are uncertain, must be established by proofs. So demands which from their nature or the course of the court, require an examination of details, must be made out by evidence, to be produced by the complainant. Carr, J. in Cropper v. Burtons, 5 Leigh, 432.

(c) Regularly an answer should be signed and sworn to, but the signature and oath may be waived by the complainant, and the filing a replication is evidence of such waiver. Fulton Bank v. Beach et al. 6 Wend. 36, in

error.

A defendant prepares an answer, admitting the allegations of plaintiff's bill, and it is certified as sworn to, but the person certifying the affidavit, does not style himself in the certificate a justice of the peace, nor is it otherwise proved that he is a magistrate empowered to administer oaths; defendant dies, and this paper, so certified, is filed in the clerk's office: Held, to be no answer of the party, nor evidence in the cause. lingtons v. Brown et al. 7 Leigh, 271.

Sit

Act of December 21, 1818-January 1, 1820. R. C. ch. 66.

take depositions to be read therein, and special commissions to take the deposition of any party in a suit, if the same may lawfully be taken, saving all just exceptions to the reading of such deposition, and saving to the court the right to quash such special commission, for good cause shewn. Act of March 7, 1826, Ses. Acts 1825-6, c. 15, § 9; Sup. R. C. c. 103, p. 132.] Or the plaintiff may move the court to bring in the defendant to answer interrogatories at his election, and proceed on to hearing in the two last cases, as if the answer had been filed, and the cause was at issue: Provided, That the court, for good cause shewn, may allow the answer to be filed, and grant a further day for such hearing. Ibid. [See tit. EVIDENCE, No. 151.]

101. § 86. After answer filed, and no plea in abatement to the jurisdiction of the court, no exception for want of jurisdiction shall ever afterwards be made; (h) nor shall the said superior courts of chancery, or any other court, ever thereafter delay or refuse justice, or reverse the proceedings for want of jurisdiction, except in cases of controversy respecting lands lying without the jurisdiction(i) of such court, and also of infants and femes coverts. Ibid.

102. 87. When a cross-bill shall be exhibited, the defendant or defendants to the first bill shall answer thereto, before the defendant or defendants to the cross-bill shall be compelled to answer such cross-bill. Ibid.

103. 88. The complainant shall reply, (b) or file exceptions, within two calendar months after the answer shall have been put in. If he fails so to do, the defendant may give a rule to reply with the clerk of the court, which being expired, and no replication or exceptions filed, the suit shall be dismissed with costs; but the court may order the same to be retained, if they see cause, on payment of costs. Ibid.

104. § 89. If the complainant's attorney shall except against any answer as insufficient, he may file his exceptions, and give a rule with the clerk, to make a better answer within two calendar months; and if, within that time, the defendant shall put in a sufficient answer, the same shall be received with

(h) But if it appear upon the face of the bill, that the matter thereof is not proper for a court of equity, the bill will be dismissed, though an answer has been put in, and no plea in abatement to the jurisdiction filed. Pollard v. Patterson's adm'r, 3 H. & M. 67, 88.

"I will not quote authorities to shew, that where a general demurrer would hold to a bill, the court though the defendant answers, will not grant relief upon the hearing of the cause. The doctrine is too well settled." Per Carr, J. in Stuart's heirs v. Coalter, 4 Rand. 78.

Where a bill states matter proper for relief in equity, and defendant, without pleading to jurisdiction in abatement, answers the bill, he is precluded from taking exception to jurisdiction thereafter, by this section. Aliter, if bill on its face shew case not properly relievable in equity. Hickman v. Stout, 2 Leigh, 6; Grandin v. Le Roy, 2 Paige, 509; Todd v. Gee. 17 Ves. 273.

Where a plaintiff resorts to a court of equity for relief, on the ground that a deed on which his claim depends has been lost or destroyed, the claim being such that if he had the deed he would have complete remedy thereon at law, the bill must distinctly aver the loss or destruction of the deed, and

it must be shewn that it could not be found on due search; otherwise the court of equity has no jurisdiction of the case. And such bill must be accompanied with an affidavit of the loss or destruction of the deed; the want of which being good cause of demurrer. Taliaferro v. Foote, 3 Leigh, 58. See Ambler et al. v. Warwick & Co. 1 Leigh, 195; Collins et al. v. Jones, 6 Leigh, 530.

A demurrer is considered a plea to the jurisdiction. See Pendleton, J. in Pryor v. Adams, 1 Call, 391.

(i) See ante, No. 57, note (a).

(b) After replication an answer cannot be excepted to as insufficient. Coleman v. Lyne's ex'r, 4 Rand. 454.

No decree of any court of equity shall be reversed for want of a replication to the answer where the defendant has proceeded to take depositions in the cause as if there had been a replication; nor shall any decree of any court of equity be reversed for informality in the proceedings where the parties have proceeded to take their depositions, and it appears to the court that there has been a full and fair hearing upon the merits, and that substantial justice has been done between the parties. Act Feb. 27th, 1828, c. 25, Sess. Acts 1827-8, p. 20.