#### Key v. Hord and Others.

October 27th, 1815.

i. Chancery Practice — Cause Prematurely Set for Hearing. * — On the hearing of a suit in chancery, If It be discovered that the cause is not matured for hearing as to some of the defendants, against whom the plaintiff appears to have a claim in equity, the bill ought not to be dismissed upon the merits; but only as to those defendants against whom there is no equity; as to the other defendants, it should be sent back to the rules for farther proceedings; notwithstanding the plaintiff may have been negligent, and the cause was prematurely set for hearing on his motion.

This was a suit in the Superior Court of Chancery for the Richmond District, originally brought by Richard Key against John Hord and Daniel Ritzhugh, and the legal representatives of William Pickett, deceased.

The bill charged that, some time prior to the 3d of November 1760, James Key, the plaintiff’s father, purchased of William Pickett a tract of land, for the conveyance of which he took his bond; that the said William Pickett had since departed this life, intestate as to the said land, leaving Martin Pickett his eldest son and heir at law ; that Martin Pickett had also died, intestate in like manner, leaving children, who were named and prayed to be held as defendants; that John Hord and Daniel Ritzhugh had wrongfully taken possession of part of the same land, and were committing waste upon it. The object of the bill, therefore, was to obtain an injunction to stay waste (which injunction was granted,) against the last mentioned defendants, a conveyance from the children of Martin Pickett, and a decree for possession of the land.

It being stated in some of the answers, that John Pickett, *and not Martin, was the eldest son and heir at law of William Pickett, deceased: and Richard Key, the complainant, having departed this life ; an amended bill was filed in June 1808, by the widow and children of the complainant, praying a revivor of the suit for their benefit, and that the representatives of John Pickett be made defendants, and compelled to convey the land to them.

Hord and Ritzhugh had previously demurred to the original bill, as containing no grounds for a decree against them ; and, also answering, denied their holding possession of any land to which the plain till had a claim.

In June 1810, the plaintiffs, dismissed their suit, “except as to the defendants Hord and Ritzhugh, and the children of "John Pickett,” against whom, as not being inhabitants of this commonwealth, an order of publication was made, but does not appear to have been carried into effect. In May 1807, on the plaintiff’s motion, an order of survey had been made, bnt not executed.

Sundry exhibits were filed ; from which it appeared that the plaintiff’s had an equitable claim upon the children of John Pickett, for a conveyance of a tract of land, by virtue of the title bond given by William Pickett to James Key, the last will and testament of the said James Key, and a deed from John Key and others, to the original plaintiff Richard Key.

In August 1810, the cause was set for hearing on the plaintiff’s motion ; and, on the 3d of June 1813, came on to be heard, when chancellor Taylor decreed, that the bills be dismissed with costs ; from which decree the plaintiffs appealed.

Wickham for the appellants.

Wirt for the appellees.

*

Tlie principal case is cited with approval in Lockridge v. Sharrot, 5 Leigh 380: Kincheloe v. Kincheloe, 11 Leigh 400.

Tuesday, November 7th, 1815. The president pronounced the court’s opinion, as follows :

The court, considering that this cause was not matured *for hearing as to the representatives of John Pickett, against whom, as the case now appears, the appellants had a claim in equity, is of opinion, that the said decree, dismissing the bill upon the merits, is erroneous.

Decree reversed, and cause remanded to the Court of Chancery, for the purpose of having the same matured as to those parties, and to be otherwise legally proceeded in.