titled, "an act for limitation of actions, for preventing frivolous and vexatious suits, concerning jeofails, and certain proceedings in civil cases" Provided, however, That no papers shall be inserted What papers shall be inserted; what in making up such records, except such as were read at the hearing, omitted. 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: And provided moreover, That no clerk shall be entitled to Proviso as 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 Time within within three months after it shall have devolved on him, or unless, cords shall be for good cause shewn, the court shall order otherwise. (a)

3. This act shall be in force from the passage thereof.

CHAP. 102.-An ACT concerning certain chancery proceedings, and for other

purposes.*

[Passed February 17th, 1823.]

clerk's fee.

which such re

made up.

Commencement.

taken afterwards,

Executors, &c.

1. Be it enacted by the general assembly, That whenever a gene- Four months from ral commission shall issue for taking depositions upon answer and plication to be altime of filing rereplication in chancery, four months from the time of filing the lowed for taking depositions, bereplication shall be allowed the parties for taking their depositions; fore setting cause for hearing. and either party, at the expiration of the said four months, may set the same for hearing: but any deposition, although taken after that But depositions time has elapsed, may be read as evidence on the hearing.(a) may be read on 2. And be it further enacted, That no executor, executrix, ad- hearing. ministrator or administratrix, or other person to whom an estate shall not compellable have been committed for administration, shall be compelled to make to make distribudistribution at any time, until bond and security be given by the and security be persons entitled to distribution, to refund due proportions of any &c. debts or demands which may afterwards appear against the testator or intestate, and the costs attending the recovery of such debt; but Such bond valid such bond shall be valid and sufficient, if executed by any respon-executed by any sible person, with security, though the party entitled to distribution responsible perbe not an obligor.(b)

tion, until bond

given to refund,

and sufficient, if

son.

lished in newspa

often.

3. And be it further enacted, That notices on all legal occasions In what cases nowherein the adverse party does not reside within the commonwealth tices may be pubof Virginia, and has no known agent within the same, upon whom pers, and how such notice could be served, and wherein no particular mode is or shall be prescribed for their service, shall be good, if published in any public newspaper printed in this commonwealth, once a week for four weeks successively: the printer's fees for which, (if not Printer's fee to be

(a) The 107th section of the revised act, by this section repealed, requires clerks to make up full records of all the pleadings in any cause finally determined, and to keep distinct record books for land causes, 1 Rev. Code 1819, ch. 66, p. 216. The 99th section of the revised act, afterwards referred to in this section, limits the making up of complete records to causes finally determined, where an appeal, writ of error or supersedeas is granted to the judg ment, and to causes where the title or bounds of land are determined, 1 Rev. Code 1819, ch. 128, p. 511; see also post. ch. 103, § 11.

Acts 1822-3, ch. 37, p. 39; see post. ch. 109, § 100.

(a) The section amended by this, is the 103d section of the revised act, 1 Rev. Code 1819, ch. 66, § 103, p. 216, reducing the time of filing replications from six to four months.

(b) Altered from act 1819, 1 Rev. Code 1819, ch. 104, § 58, p. 389. The provision in the revised act is extended to administrators only; this section is more comprehensive.

taxed in bill of costs.

Repealing clause.

Commencement.

Defendant to be notified to answer,

Officers serving

subpoena to leave

copy.

If executed and

bill filed, and no answer, plaintiff

may set cause for

hearing.

thought unreasonable by the court,) shall be taxed in the bill of costs, if the party chargeable therewith shall prevail in the suit. (c) 4. All acts and parts of acts, coming within the purview of this act, shall be, and are hereby repealed.

5. This act shall commence and be in force from and after the passing thereof.

CHAP. 103.—An ACT to alter and reform the mode of proceeding in the courts of chancery.*

(Passed March 7th, 1826.)

1. Be it enacted by the general assembly, That every writ of subwithin what time. pœna 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 four months thereafter, the court will take the same for confessed, and decree accordingly ;" and it shall be the duty of the officers serving such subpoena, 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 four 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 Or compel defen- 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 subpoena as aforesaid, the suit so instituted shall, for Act not to apply want of such bill, stand thereby dismissed. Nothing in this secto antecedent ca- tion 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. (a)

dant to answer.

Proviso.

Cause not to be
sent to rules.
If bill not filed by

return day suit to

stand dismissed.

ses.

Death or marriage

of plaintiff not to

abate suit.

To be conducted in name of heir,

&c. without scire facias.

2. And be it further enacted, That 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 If representative to the contrary: and if on the motion of such husband or represenon motion, be not tative, he be not made a party to the suit, the defendant may, at his fendant may have election, either have a scire facias for that purpose, or if the proper discontinued at his 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.(b)

made a party, de

scire facias, or suit

election.

(c) See 1 Rev. Code 1819, ch. 131, § 21, pp. 521, 522. The section referred to is by this, made more general.

*Acts 1825-6, ch. 15, p. 15. See post. ch. 139, § 100.

(a) Altered from act 1818, 1 Rev. Code 1819, ch. 66, § 77 to 83, pp. 213, 214. (b) Ibid. ch. 128, § 38, p. 498.

commissioners.

service to be computed.

3. And be it further enacted, That the commissioners appointed Compensation to 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 com- How his time of missioner 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. (c)

adjourn his pro

his report is com

and make excep

return exceptions,

4. And be it further enacted, That when any commissioner shall Commissioner to have given notice to the parties to attend him, for the purpose of ceedings from taking an account, he shall regularly adjourn his proceedings from time to time till time to time, until he shall have completed his report; and when pleted. 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 Time allowed parit for the space of ten days, for the examination of such of the ties to examine it, parties as may choose to attend; and who, without being at the ex- tions. pense of taking a copy, may inspect the same, and make such objection or exceptions, as he or they may think proper and it shall Commissioners to be the duty of the commissioner to state and report the same, with &c. with their reany evidence relating thereto : and the decrees, orders and notices, ports. under which such commissioners act, shall be returned by them, with their reports, without being copied as parts thereof. No com- In making up acmissioner in making out any account in a case referred to him, shall counts, documents copy into such account, or into his report, any paper or document prior accounts not in the cause: In making up an account, from another previously stated or settled, he shall not copy such prior account into his new of statement. 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 improper- All extraneous ly copied into a commissioner's account, shall be expunged on the matter to be exapplication of either party, at the costs of the commissioner; and Commissioner to if any report shall be re-committed, on account of the culpable negligence or misconduct of the commissioner, the costs occasioned thereby shall be paid by such commissioner.(d)

to be omitted, and

to be copied, but to form the basis

punged.

pay costs thereof.

affidavits before

5. And be it further enacted, That it shall be lawful for the par- Parties may lay ties to take affidavits, before a single magistrate, to be laid before commissioner, upthe commissioners as evidence respecting any matter of account on giving notice." before them: Provided, That reasonable notice be given to the opposite parties.

case to be heard

6. And be it further enacted, That after reports shall have been Within what time returned to the court two months preceding any term, the cases after reports shall be heard upon such reports, unless there be good cause shewn made. to the contrary.

(c) Ibid. ch. 66, § 39, p. 203. See post. ch. 109; acts 1830-31, ch. 11, § 76,

p. 68.

(d) See post. ch. 109, § 77.

In suits against

executors and administrators, no

if plaintiff will!

7. And be it further enacted, That in suits against adminstrators and executors, it shall not be necessary to take an account of account necessary, the administration, if the plaintiffs be willing to take a decree take decree when against such estate, in the hands of the executors or administrators, or when assets shall come to their hands to be administered; except in suits for legacies or distribution, or unless under the particular circumstances of the case, such account shall be necessary.

assets, &c.

Exceptions.

What process

&c. may execute.

8. And be it further enacted, That mesne process issuing from sheriff's, sergeants, the chancery court, or an execution for any sum not exceeding one hundred dollars, may, if the plaintiff require it, be directed to the sheriff, sergeant, or other proper officer of any county or corporation, and the execution and return thereof, by such sheriff, sergeant or other officer, shall be as valid and effectual as if made by the marshal.(e)

General and special commissions to take depositions.

9. And be it further enacted, That 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 take depositions to be read therein, and special commissions to take the deposition of Saving exceptions 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.(ƒ)

thereto.

Within what time dismissed suits

10. And be it further enacted, That no suit which shall have may be reinstated, been dismissed in the office, or in court, shall be reinstated after the period of one year from the expiration of the term in which such dismission took place, or was made absolute.(g)

What to be omitted by clerks in making out records.

Court of appeals may direct omis

sions to be supplied.

Rules when to be held.

11. And be it further enacted, That 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 subpœnas and process, all orders at rules, the returns and evidences of service thereof, except such subpoenas, 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. (h)

12. And be it further enacted, That rules shall be held monthly, in vacation, and in term time on the first Monday in every month,

(e) Office of marshal abolished; post. ch. 109, § 70, 71. Acts relating to the office of marshal omitted in this supplement.

(f) Altered from revised act;

(g) Ibid. § 105.

(h) See ante. ch. 101, § 2.

Rev. Code 1819, ch. 66, § 85, p. 214.

in the clerks' offices of the superior courts of chancery, and may be kept open for six days.(i)

set cause for hear

13. And be it further enacted, That whenever the answer of When party may any defendant shall have been filed four months, he may set the ing as to himself. cause for hearing as to himself, and he shall be entitled to a hearing accordingly, unless his interests be so connected with the interests of other defendants in the same cause, as that it would be improper to decide upon those interests separately; in which case such de- Plaintiff's bill to fendant shall be entitled to a dismissal of the plaintiff's bill, unless he diligently pursue the necessary measures to mature the cause for cessary steps to hearing, as to the other defendants.

shall

be dismissed, unless he takes ne

mature his cause.

for hearing when to be disposed of,

the court, the

14. And be it further enacted, That all causes which shall be Causes prepared prepared for a hearing, agreeably to the provisions of this act, be docketed, called and disposed of at the term to which they shall be so prepared; and if the court shall refuse to try any such cause Upon refusal of or continue it, without good cause shewn, the party asking for a court of appeals trial may have his application spread upon the record, with a true may award a mandamus and compel statement of the facts relative thereto; upon such statement, it shall a trial. be lawful for the court of appeals upon the application of the party injured, to award a mandamus, and compel a trial of the cause, upon the proofs as they existed at the time when it was erroneously continued, or the trial was improperly refused.

commissioners to

15. And be it further enacted, That it shall be the duty of the Courts to appoint superior courts of chancery once in every three years, to appoint examine fee-books some fit and proper person or persons, as a commissioner or commis- of clerks. sioners, whose duty it shall be to examine the fee-books of their clerks; and to ascertain and report to the courts, whether or not the fees are charged conformably to law; and it shall be the duty of the said clerks to keep regular fee-books, and to submit the same

commissioners.

to the inspection of the commissioners so appointed, who shall be Compensation to allowed for their services as aforesaid by order of the said courts, a sum not exceeding five dollars a day to each person.

of clerks.

16. And be it further enacted, That it shall be the duty of the Additional securichancellor in each district from time to time, at least once in five ty may be required years, to enquire into the sufficiency of the securities given by the clerks in their respective courts, and if upon such enquiry, he deems it proper to require additional security, he may so order it; and if Forfeiture of of the clerk shall fail to obey such order, he shall for such failure, for- fice for failing to feit his office, and it shall be the further duty of said chancellor, to transmit to the attorney general, a copy of the proceedings requiring such security; and it shall be the duty of the attorney general there- Attorney general upon, to institute a prosecution against said clerk in the general to prosecute. court, according to the laws of this land.

comply.

tain relief.

17. If the surety for any marshal of a chancery court, shall desire Sureties of marto be released from further obligation, he may make application for shals, how to obrelief to the court in term time, or to the judge thereof in vacation; and thereupon the marshal having had reasonable notice of such Upon notice, marapplication, it shall be the duty of the court or of the judge in vaca- shal to enter into tion, to appoint a convenient time, not exceeding thirty days, within new bond, &c. which, the marshal shall be required to enter into new bond, with sufficient security for the performance of the duties of his office; upon the execution whereof, the responsibility of the sureties in the former bond, for the future conduct of the marshal shall cease; and

(i) 1 Rev. Code 1819, ch. 66, § 94, p. 215; ch. 128, § 69, p. 506; see also post. ch. 109, § 18.