Act of March 8, 1819—January 1, 1820. R. C. ch. 69. judge of the superior court of chancery, in vacation next after the term when such decree shall have been rendered, it shall appear to his satisfaction that the failure to appeal from his decree, at the time, or during the term when it was pronounced, did not arise from any culpable neglect in the petitioner, or that, upon the whole circumstances of the case, the petitioner ought to have the benefit of an appeal, it shall be lawful for the said judge to grant the said appeal; which grant of appeal shall be as effectual, both for staying proceedings on the said decree, and for bringing the same before the court of appeals for their decision, as if the same had been duly made, during the term when the said decree was pronounced. 1792, c. 64, R. C. 149. 58. The several courts within this commonwealth, having original chancery jurisdiction, shall have power and authority, in all cases where, by any final decree, any sum or sums of money, or quantity of tobacco, are directed to be paid to either party, to award interest until the same shall be paid;(p) any law or custom to the contrary notwithstanding. Jan. 20-May 1804. 1, 150. § 41. The judges of the said chancery courts may, in all cases, at their discretion, where a sale is decreed of property, direct the same to be made for cash, or on such credit,(5) and on such terms as may be deemed best; and, whenever, in any suit in equity, it shall be proper to decree the execution of any deed or other writing, it shall be lawful for the court to appoint a commissioner (q) to execute the same; and the execution thereof by such commissioner, shall be as valid in law to pass, release or extinguish the right, title and interest of the party, on whose behalf it is executed, as if it had been executed by such party in proper person, and as if such party had been, at the time, capable in law of executing the same: Provided however, That nothing herein contained shall be construed to alter, abridge, or in any manner affect the rights of infants, or absent defendants, or of any other persons, to shew cause against any such decree, or to contest or reverse the same, within the same time, and in the same manner as if this act had never passed. Feb. 12, 1814, c. 17. 151. § 46. For preventing errors in entering up the judgments [decrees and orders, act of Dec. 21, 1818, R. C. c. 66,] of the said courts, the proceedings of every day shall be drawn up at large, by the clerk, against the next sitting of the court; when the same shall be read in open court, and such corrections as are necessary(2) being made therein, they shall be signed by the presiding (p) See Deems v. Scriba et al. 2 Call, 415, and Bell v. Free, 1 Swanst. R. 90. (5) The discretion given to courts of chancery, by this section, in decreeing sales of real estate, to direct the sales to be made on credit, should be exercised, where the circumstances shew that it ought to be; and the failure to exercise it, is a subject for examination in the appellate court. Tennant's heirs v. Pattons, 6 Leigh, 196. (1) See Quarles v. Lacey, 4 Munf. 259; Lane v. Tidball, 1 Gil. R. 132; Lovell v. Arnold, 2 Munf. 167. (2) The court has an undoubted right to correct any error made by the clerk in the orders of the preceding day. Gibson v. The Com. gen'l ct. Nov. T. 1817, 2 Virg. Cas. 111. During the term the records are in the breast of the court, and may during that time be amended, but after the term no amendment can be made except of a mere clerical misprision. An error in the orders of the court, or an omission to make an entry in the order-book, is not a clerical but a judicial error. The Com. v. Cawood, gen'l ct. June T. 1826, Co. Litt. 260, a; The King v. Carlisle, 2 Barn. & Adolp. 971. On an appeal from a judgment of a circuit court, this court cannot inspect the minutes of the proceedings taken by the clerk, for the purpose of correcting a mistake in the entry of the judgment on the order-book; aliter, in the case of a judgment of a county court. Christian et ux. & al. v. Miller, assignee, 3 Leigh, 78. If the jury find a right verdict, but the district court records it wrongly, and enters judgment upon it as recorded, the district court cannot correct the error by the true verdict at a subsequent term. Freeland, Lenox, &c. v. Field's ex'rs, 6 Call, 12. See Shelton's ex'rs v. Welsh's adm'rs, 7 Leigh, 175. Act of March 8, 1819—January 1, 1820. R. C. ch. 69. judge, and carefully preserved among the records. (m) On the last day of each court, the proceedings therein shall be drawn up, read, corrected, signed and preserved as aforesaid. March 1661-2, act 21, 2 Stat. Larg. 61; Feb. 24, 1820, c. 28, § 2. Act of December 21, 1818-January 1, 1820. R. C. ch. 66. 152. § 107. [This sec. was repealed by sec. 2, c. 31, Mar. 5, 1821, and sec. 99, c. 128, R. C., (see tit. PROCEEDINGS IN CIVIL SUITS, NO. 58,) introduced in lieu thereof, with this proviso, That no papers shall be inserted in making up such records, except such as were read at the hearing, or were ordered by the court to be so inserted; and that all papers shall be omitted which are directed to be omitted, either by the agent of the parties, or by order of the court, on motion of either party.] [When appeals shall be allowed from any superior court of chancery to the court of appeals, the clerks in making out copies of the records shall omit all subpoenas and process, all orders at rules, the returns and evidences of service thereof, except such subpœnas, process, orders and returns, and evidence of service, as may be necessary to shew that the cause has been regularly matured for hearing; they shall omit all commissions and notices to take depositions, all captions of depositions and certificates of their having been sworn to, except such as may be necessary to the decision of exceptions taken to the reading of the depositions; they shall certify at the head of each deposition the date when it was taken and the name of the witness, and if the same exhibit, or a copy thereof, be filed by more than one party, only one copy shall be inserted in the record; and if any account shall have been taken, and there be no exception filed thereto, such account shall not be copied in the record, without the order of the court, or the judge thereof in vacation: Provided always, That the court of appeals may order any part of the record which shall be omitted by virtue of this section, to be supplied by the clerk of the superior court of chancery, and a copy thereof, certified by the clerk in obedience to such order, may be used in the same manner as if it properly formed a part of the original record. Act of March 7, 1826, Ses. Acts 1825-6, c. 15, § 11; Sup. R. C. c. 103, p. 132.] [The same rules shall be observed in making out copies of records upon appeals allowed from any county or corporation court to any superior court of chancery. Act of Jan. 15, 1828, Ses. Acts 1827-8, c. 26, § 2o; Sup. R. C. c. 120, p. 178.] [It shall not be necessary to make up complete records, to be preserved in the courts of chancery, of any cause decided therein, unless the court shall specially order it, and shall direct at whose cost it shall be done. Ibid. § 4.] [And, that no clerk shall be entitled to any fee for making a complete record in any suit in chancery, after the first day of June next, unless he shall have performed that duty within three months after it shall have devolved on him, or unless for good cause shewn, the court shall order otherwise.] 153. § 116. The judge of any superior court of chancery, either in term time, or in vacation, when a bill praying a review of the proceedings, in which a decree shall have been pronounced by the said court, (u) shall be presented (m) See Vaughan et al. v. Freeland et al. 2 H. & M. 477, note (1). [But see tit. C1VIL SUITS, (Jeofails,) No. 9.] (u) The court cannot correct on motion, or by bill of review, any error apparent on the face of the proceedings in a decree which has been affirmed by the court of appeals. Campbell v. Price et al. 3 Munf. 227; 5 Call, 115, S. C. A bill of review can only be brought on a final decree. Ellzey v. Lane's ex'x, 2 H. & M. 590; Sheppard's ex'r v. Starke et ux. 3 Munf. 29. A bill of review lies only for new matter discovered since the decree, [Winston v. Johnson's ex'r, 2 Munf. 305; Franklin v. Wilkinson, 3 Munf. 112; and see 6 Munf. 425]; Young v. Keighly, 16 Ves. jr. 348; Blake v. Foster, 2 Ball & Beatty, 457. A bill of review must suggest error in Act of December 21, 1818–January 1, 1820. R. C. ch. 66. to him, may, upon such bill, and the circumstances of the case, as the same shall appear satisfactory to him, direct the proceedings on such decree to be stayed, (v) until a decree on the said bill of review shall be made, or until the further order of the said judge: or the said judge may refuse to grant a stay of proceedings in that case, as to him shall seem right: Provided, That such judge of the superior court of chancery shall, in either of the said cases, direct such security to be given, and in such place, as is usual in the cases of appeal and injunction, or such other security as to him shall seem to be reasonable. Nov. 1792, c. 64, R. C. law, or newly discovered matter, or it cannot be sustained. Triplett v. Wilson et al. 6 Call, 47. To a final decree for S. against T., T. files a bill of review for errors in law in the proceedings and decree. In answer to the bill, S. cannot allege new matters of fact. Thornton v. Stewart, 7 Leigh, 128. See this subject fully discussed by Story, J. in Dexter v. Arnold, 5 Mason, 303. Where a bill of review alleges new matters, which are denied by the answer, it will be dismissed at the hearing, unless the plaintiff proves the new matters, and that they were discovered after the decree was made. Barnett & Co. v. Smith & Co. 5 Call, 98. It may be brought for errors apparent on the face of the decree. [Braxton v. Lee's heirs, 4 H. & M. 376,] Quarrier v. Carter's repres. 4 H. & M. 242-3. Additional circumstances, merely confirming facts proved in the original cause, do not furnish sufficient grounds for a bill of review. Randolph's ex'r v. Randolph's ex'r et al. 1 H. & M. 180; and see Livingston v. Hubbs et al. 3 Johns. Ch. R. 124. In Virginia, the practice in obtaining a bill of review is to apply for leave in the first instance, whether it be for error apparent on the face of the decree, or upon the discovery of new matter since the rendition thereof. See Reporter's note (i) to Ellzey v. Lane's ex'x, 2 H. & M. 591; and Roane, J. in Quarrier v. Carter's repres. 4 H. & M. 243. (v) See Prac. Reg. Wyatt's ed. 96, 97. The expiration of the term at which a final Virginia practice, an enrolment of the dedecree was pronounced, is, according to the cree, so that, according to the general rule, the court thereafter cannot set it aside or change it except by bill of review. But to the original decree be by default and against this general rule there are exceptions; as if though there be no error on its face, and no the merits, owing to mistake and accident, aside, and the defendant allowed to file his new matter, the court on petition will set it answer. the authority of Kemp v. Squire, 1 Ves. sen. Erwin v. Vint, 6 Munf. 267, on jun. [115]. 205; and see Charman v. Charman, 16 Ves. If a bill of review, shewing just cause, as that the decree was rendered against infants without answer, or without a day given them to shew cause against it, be offerlies to the court of appeals. Lee's infants, ed and refused by the chancellor, an appeal by &c. v. Braxton, 5 Call, 459. A bill of injunction will lie to restrain prise. Callaway v. Alexander, 8 Leigh, proceedings on a decree obtained by sur114. An original bill will lie to set aside a decree obtained by surprise or mistake, as well as one obtained by fraud, and though the derson v. Woodford et al. 8 Leigh, 316. decree impeached be a consent decree. An On general principles, it would seem, that those who have and those who want the entire subject of controversy, would be the proper and sufficient parties. It is enough that all those should be parties defendant to the suit, who possess all the rights in controversy in that suit, and therefore can enable the court to make a complete decree upon the subject. Roane, J. in Mayo v. Murchie, 3 Munf. 401; and see farther, p. 402-34-5, for the doctrine of parties in chancery, and the elaborate opinion of Story, J. in West v. Randall, 2 Mason, 181, 190; Elmendorf v. Taylor, 10 Wheat. 167-8; Meux v. Maltby, 2 Swanst. 276, 281; Sir Thomas Plumer's opinion Wood et al. v. Dumnier et al. 3 Mason, 308, 317; Mech. Bank of Alex andria v. Seton, 1 Peters's R. S. C. 307; bill absolutely, for want of proper parties; No one need be made a party complainant in whom there exists no interest, and no one party defendant from whom nothing is 550, 559; and see Edgar v. Donnally et al. demanded. Kerr et al. v. Watts, 6 Wheat. 2 Munf. 387; Mayo v. Murchie, 3 Munf. 358. The rule is, that all persons concerned in the demand, or who may be affected by the relief prayed, ought to be parties, if within the jurisdiction of the court. Brooke, J. in delivering court's opinion in Richardson's ex'r v. Hunt, 2 Munf. 150, citing Mitford's Treat. 32, 3d ed. If they are not, the defect may be taken advantage of either by demurrer or by the court at the hearing. Clark v. Long, 4 Rand. 451; Wood et al. v. Dummer et al. 3 Mason, 317; The Mechanics Bank of Alexandria v. L. & M. Seton, 1 Peters's R. S. C. 306. Therefore, in a suit for the division of a residuum, all the residuary legatees or distributees, and the executors or administrators of such as have died since the testator or intestate, should be parties. Richardson's ex'r v. Hunt, 2 Munf. 148; Sheppard's ex'r v. Starke et ux. 3 Munf. 29; and see Branch's adm'x et al. v. Booker's adm'r, 3 Munf. 43; Findlay, ex'r v. Sheffey, 1 Rand. 73; Brown v. Rickett's ex'rs, 3 Johns. Ch. R. 553; Davoue v. Fanning, 4 Johns. Ch. R. 199. Is it indispensable to make all the residuary legatees, when known, technical parties by name, or is it sufficient for a residuary legatee to sue on behalf of himself and all other residuary legatees? See cases above cited, and Story's Eq. Plead. 89, note (1). But in a bill against an executor or administrator, either by legatees, Williams v. Williams, 2 Bro. Ch. C. 87; Peacock v. Monk, 1 Ves. sen. 127; or by creditors, Lawson v. Barker, 1 Bro. Ch. C. 303, it is not necessary to make any other than the executor or administrator parties relative to the personal estate. It seems, that where land is sold by virtue of a deed of trust, and the debtor impeaches the sale, he must make the purchaser, as well as the creditor, a party. See Chowning v. Cox et al. 1 Rand. 306. The purchaser of an equity of redemption in a bill against the mortgagee to redeem, must make the mortgagor a party. Clark v. Long, 4 Rand. 451. D. & A. partners, assign effects to B. on trust, to pay all debts due from a former partnership of D. & C:, and all debts of D. & A. for which B. the trustee was responsible as their surety, and pay the surplus to the order of D. & A. Afterwards D. & A. drew an order on B. the trustee in favour of P. for a sum of money they owed him, to be paid out of the surplus of the trust fund; and B. accepts the order, payable out of the surplus. On a bill in chancery by P. against B. the trustee, alone, praying that he might render an account of the fund that the surplus might be ascertained and applied to discharge the order: Held, that neither D. & A. nor D. & C., nor any other of the cestuis que trust, are necessary parties, since the trustee represents the interests of all the cestuis que trust. Buck v. Pennybacker's ex'rs, 4 Leigh, 5. Where estates have been conveyed to trustees, in trust for such of the creditors of the grantor as should execute the convey ance, and a bill is filed by an incumbrancer, (some of whose securities are prior and others subsequent to the trust deed,) praying that his rights and interests under his securities may be established, and the priorities of himself and the other incumbrancers declared, all the creditors who have executed the conveyance, however numerous they may be, must be made parties to the suit. I accede to the rule (said the vice chancellor) laid down in Adair v. The New River Company, 1 Ves. 429, &c. That rule, however, applies only to cases where there is one general right in all the parties, that is, where the character of all parties, so far as the right is concerned, is homogeneous, as in suits to establish a modus, or a right of suit to a mill. Notwithstanding the inconvenience arising from numerous parties, there are some cases in which they cannot be dispensed with. Thus if a bill is filed to have the benefit of a charge on an estate, all persons must be made parties who claim an interest in the charge, &c. Newton v. The Earl of Egmont, 5 Sim. 130. And see Wakeman v. Grover, 4 Paige, 23, 11 Wend. 187, in error. A fact not charged in the bill, nor put in issue by the pleadings, cannot be relied on by the plaintiff. Nor can a defect in the charging part of the bill be supplied by a subsequent interrogatory. Parker v. Carter et al. 4 Munf. 273, 288. But if the defendant thinks proper to answer such interrogatory, and the complainant replies thereto, the subject thereof is thereby put in issue, and either party may examine to it. Atto. Gen. v. Whorwood, 1 Ves. sen. 538-9. A claim not demanded by the bill, nor put in issue by the pleadings, cannot be decreed. Sheppard's ex'r v. Starke et ux. 3 Munf. 29, 40; and see Crocket v. Lee, 7 Wheat. 523, 525-7; nor will evidence be admitted to support it. Knibb's ex'r v. Dixon's ex'r, 1 Randolph, 249; Smith v. Clarke, 12 Ves. jun. 477; Blake v. Marnell, 2 Ball & Beatty, 47; Stuart v. Mechanics and Farmers Bank, 19 Johns. 496. If a bill of injunction charge the plaintiff at law with having failed to do an act on which the equity of his claim depends, and he takes no notice of that allegation in his answer, the court, on the hearing, will take his silence as an admission of the truth of the charge. Page's ex'r v. Winston's adm'r, 2 Munf. 298. And so where the complainant charged that a certain deed was executed before a certain event, the deed reciting that such event was shortly to happen, and the defendant did not notice in his answer said charge, it was taken by the court as a concession of the truth thereof. Scott et ux. et al. v. Gibbon et al. 5 Munf. 86. See this point remarked on by Roane, J. in M'Pherrin et al. v. King et al. 1 Randolph, 186. When the defendant's answer omits to notice some of the allegations of the bill, and answers to others, the allegations not answered will not be taken as admitted. The complainant must except to the answer as insufficient. Coleman v. Lyne's ex'r, 4 Rand. 454; Cropper v. Burtons et al. 5 Leigh, 426, 432; Miller v. Argyle's ex'r et al. 5 Leigh, 460, 467. If the cause comes on upon bill and answer, the answer must be considered as perfectly true. Kennedy v. Baylor, 1 Wash. 162; Pickett et ux. et al. v. Chilton, 5 Munf. 467, 483; whether responsive to the bill or not, per Cabell, J. in Findlay v. Smith et ux. et al. 6 Munf. 142; Binkerhoff v. Brown, 7 Johns. Ch. R. 223; Atkinson v. Marks et al. 1 Cowen, 691; Dale et al. v. M'Evers et al. 2 Cowen, 118; Jones v. Mason, ex'r of Jones, 5 Rand. 577. As to the effect of a waiver of a replication, see Wiser v. Blachly, 1 Johns. Ch. R. 607; Leeds v. Mari. Ins. Co. 2 Wheat. 380. When a replication has been entered and afterwards withdrawn, the court cannot [order] an account, or render a decree, until a new issue is made up. A deposition taken while the replication was standing, cannot be read after it is withdrawn. Clarke v. Tinsley's adm'r, 4 Rand. 250. The answer, the cause being regularly at issue, is not evidence, where it asserts a right affirmatively, in opposition to the complainant's demand. In such a case the defendant is as much bound to establish it by indifferent testimony, as the complainant is to sustain his bill. Beckwith v. Butler, 1 Wash. 225; Paynes v. Coles et al. 1 Munf. 373, 395; Hart v. Ton Eyck, 2 Johns. Ch. R. 62, 89-94. The answer being responsive to the bill is conclusive unless disproved. Maupin v. Whiting, 1 Call, 224 ; generally by two witnesses, or by one witness and circumstances corroborating his testimony. See Hoomes v. Smock, 1 Wash. 392; Pryor v. Adams, 1 Call, 382; Bullock v. Goodall, 3 Call, 44; The Auditor v. Johnson's ex'r, 1 H. & M. 537; Hughes v. Blake, 6 Wheat. 453, 468. "The general rule that either two witnesses, or one witness with probable circumstances, will be required to outweigh an answer asserting a fact responsively to a bill, is admitted. The reason upon which the rule stands is this:-The plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence. If it is testimony, it is equal to the testimony of any other witness; and as the plaintiff cannot prevail if the balance of proof be not in his favour, he must have circumstances in addition to his single witness in order to turn the balance. But certainly there may be evidence arising from circumstances stronger than the testimony of any single witness, &c." See Marshall, C. J. in Clark's ex'rs v. Van Riemsdyk, 9 Cranch, 160-1; Clason v. Morris, (in error,) 10 Johns. R. 524; The East India Company v. Donald, 9 Ves. jun. 275. The answer must be contradicted by two witnesses, or one witness and strong circumstances. The depositions of single wit nesses to different conversations at different places, will not support each other. Love v. Braxton et al. 5 Call, 537. It is a well settled rule, that in a bill praying relief, when the facts charged in the bill as the ground for the decree are clearly and positively denied by the answer, and proved only by a single witness, the court will not decree against the defendant. And 'tis equally well settled that when the witness on the part of the complainant is supported and corroborated by circumstances sufficient to outweigh the denial in the answer, the rule does not apply. The Union Bank of Georgetown v. Geary, 5 Peters's R. 99, 110-11. The answer of one defendant cannot be used as evidence against his co-defendant. Hoomes v. Smock, 1 Wash. 389; Leeds v. Marine Insurance Company, 2 Wheat. 380. See Field v. Holland, 6 Cranch, 8; and Osborn v. U. S. Bank, 9 Wheat. 738, 831, for exceptions to this general rule. No rule is better settled than that the answer of one defendant cannot be read against another. Dade's adm'r v. Madison, 5 Leigh, 401, 404. The general rule is, that an injunction properly granted is not to be dissolved until the answer of all the defendants has come in. Prac. Reg. Wyatt's ed. 234; for exceptions, see Joseph v. Doubleday, 1 Ves. & Beam. 497, and Depeyster v. Graves et al. 2 Johns. Ch. R. 148. If the answer neither denies nor admits the allegations of the bill, they must be proved upon the final hearing; but upon a question of dissolution of an injunction, they are to be taken to be true. Young v. Grundy, 6 Cranch, 51; and see Roberts v. Anderson, 2 Johns. Ch. R. 204-5; Green, J. in Skipwith v. Strother, 3 Rand. 220. And if the defendant admits the equity in the bill, but sets up new matter of defence on which he relies, the injunction will be continued to the hearing. Minturn v. Seymour, 4 Johns. Ch. R. 497. It is a general and well settled principle, that if the answer denies all the circumstances upon which the equity of the bill is founded, the universal practice as to the purpose of dissolving or not reviving the injunction is to give credit to the answer. Skinner v. White, (in error,) 17 Johns. R. 357,366. On a motion to dissolve an injunction it ought not to be required of the defendant to invalidate by full proof the allegations of the bill, the burthen of proof lies on the plaintiff to support them. All that is required of the defendant is to shew that the evidence of the plaintiff is entitled to no credit. North's ex'r v. Perrow et al. 4 Rand. 1. But material facts alleged in the bill, and not denied in the answer, will be taken as true on a motion to dissolve, and no other proof will be required on such motion. Randolph v. Randolph, 6 Rand. 194. Denial from information and belief not sufficient. |