#### *Colvert v. Millstead’s Adm’x.

February, 1834,

Richmond.

(Absent Brooke.and Green, J.)

Will — Partial and Premature Division of Slaves under— Impeachment — Lapse of Time. — A partial division of slaves, under the will of a Maryland testator, is made in that. state in 1768, before the time *43appointed by the will for a division, and during infancy of one of the legatees, but division acquiesced In, at least no new division ever demanded: after great lapse of time, such division, however premature or incomplete, cannot be impeached.

Chancery Practice — Evidence oí Pedigree — Depositions Taken in Action at Law*- -Case at Bar. — Bill in chancery by W. M. against S. 0. and two others, claiming slaves, and demanding discovery of names &c. and an account of profits; plaintiif exhibits depositions of aged witnesses, taken in 1791, in an action of detinue brought by him against It. B. to which S. C. vas not party, to prove the pedigree of the slaves claimed in this suit; and these depositions are read in the court of chancery, at three hearings, at very distant intervals, without exception: Held, 1. the depositions, relating to pedigree, are competent evidence of genera] reputation touching the descent of the slaves, if the deponents be now dead; and 2. considering that they were read at the hearing, so often, without exception. and the great probability that the deponents are now ail dead, the objection to the competency of them, cannot avail now in this court; dissentienle. Tucker, P., as to the last point.

Same--Statute of Limitations -Must Be Pleaded.†— Upon a bill in chancery for slaves, the statute of limitations cannot avail the defendant unless it be pleaded.

In January 1798, William Millstead exhibited a bill against James Colvert, Samuel Colvert, and Isabella Bruce, in the then high court of chancery, setting forth, that Robert Colvert of Charles county, Maryland, died in 1757, and by his will bequeathed to his wife Charity, the use of four slaves, namel3r, Fanny, Sarah, Sue and Hannah, until his son Samuel should attain to full age; at which time, or at that son’s death, if that event should first happen, he bequeathed one third of those slaves and their increase to his wife, and the other two thirds to and among his children Robert, John, Joseph, James, Samuel, Isabel, Christian and Violetta: that the testator’s widow Charit3r, and Robert the son, qualified as executors of the will: that *Charity, the widow, afterwards married John Millstead; and during her second coverture, her son Samuel attaining to full age, division was duly made of the slaves; and one named Sue alias Susanna, was allotted to Mrs. Millstead in part of her third: that after the division, the woman Sue had great increase, and all vested in John Millstead, the second husband: that John Millstead, by deed dated the 26th July 1791, gave Sue and her increase, nine in number, to the plaintiff William Millstead: and these slaves were in the possession of the defendants James and Samuel Colvert and Isabella Bruce. And the bill called on the defendants to discover the names, sexes and ages, of the slaves in their possession, respectively, and how long they had them in possession; and prayed, that they might be ordered to deliver the property to the plaintiff, and to account for and pay him the profits.

James and Samuel Colvert answered, that the division pretended in the bill, was made before not after Samuel’s attainment to full age, without any consent of parties, and without any order of court directing it; and that the pretended division was not made of the whole but of part only of the slaves, the parties who had agreed to the making of the division, having disagreed before the persons appointed to make it by John Millstead, had finished the division : that there were two slaves, Beonard and Da1 id, in possession of James Colvert, and two others, Harry and Watt, in possession of Samuel Colvert; which slaves formerly belonged, or descended from slaves that belonged, to the testator Robert Colvert’s estate, but whether they were part, or the descendants of any, of those allotted to Mrs. Millstead, the defendants were ignorant: and that the defendants had been in possession of those four slaves from the autumn of the year 1796.

Isabella Bruce answered, that no such division of the testator Robert Colvert’s slaves, as that alleged in the bill, was ever made ; that a division was indeed attempted and commenced, but was left unaccomplished : that a slave called Sue, and one of her children named Hannah, and Hannah’s ^children Thornton and Delphia, had long been in this defendant’s possession.

The plaintiff exhibited with his bill, 1. a copy of the will of Robert Colvert, and of the probat thereof, dated in 1757; from which it applied, that, the bequest of the testator’s slaves was accurately stated in the bill: 2. an inventory of the testator’s estate, in which four slaves of the same names with those mentioned in that bequest, are named: and 3. the deed of gift from John Millstead to the plaintiff, under which he claimed.

There was only one deposition taken in this cause, namely, that of Mary Woodward; who deposed, that John Millstead, the second husband of Charity-the relict of *44the testator Robert Colvert, offered to have a division made of the testator’s estate among the legatees: that they all met upon that business, together with a Mr. Small-wood and Mr. Courts, who were to make the division: that they began to divide, and laid off Sue with Mary and Nell for the widow’s thirds, by Millstead’s direction: that they went on till the evening with the division, and met next morning to proceed ; there was an objection made, that what was done was not legal; so it stopped at that, till Samuel came of age to divide the estate; and the same Mr. Courts and Mr. Bucketts came to divide, but they never went through with the division.

The plaintiff filed copies of seven depositions taken in 1793 and 1794, in an action of detinue then pending in the district court of Frederick, in which he was plaintiff and Joseph Bruce was defendant; namely, the depositions, 1. Of Walter Hanson ; who deposed, that he was called on, in 1768, by the executors and all the legatees of Robert Colvert, to make a settlement of that testator’s estate, which had previously been referred to Mr. Smallwood and Mr. Courts; and that an account being laid before him, which the parties allowed to be a settlement made by Mr. S. and Mr. C. he, on examining it, thought the parties ought to abide by the settlement, so far as it was made by those gentlemen; and he proved the handwriting of Mr. Smallwood as subscribing witness to a bond executed by Joseph Colvert and ^Joseph Bruce, and to several receipts given to the executors of the testator Robert Colvert, dated the 10th and 11th December 176S. 2. Of Richard Barnes, who also proved the handwriting of Mr. S. as subscribing witness to the bond and receipts mentioned by Hanson; and described those papers, as being four receipts given to Robert Colvert’s executors, by the legatees James and Joseph Colvert, and by C. Mason and Joseph Bruce [who, it seemed, had married other legatees of the testator], and a bond executed by Joseph Colvert and Joseph Bruce to the executors, to indemnify them for making a division while Samuel Colvert was under age — but the bond and receipts were not in this record. 3. Of Henry Spealce, that he understood from his wife, who was the widow of the legatee Joseph Colvert, that her first husband had received his part of his father’s estate, and a general settlement had been made with all the legatees; that the legatee James Colvert told the deponent, that he set up no claim against John Millstead; and the deponent always understood, that the woman Sue was Mrs. Millstead’s part of her first husband’s estate, and that the slaves, Hannah, Beonard and Harry, were the children of Sue and Watt the son of Hannah. 4. The deposition of Godfrey Murdock; who deposed, that he was present at the division made by Mr. Smallwood and Mr. Courts; that be was told by John Millstead, that Sue was allotted to his wife; and he never heard of any objection to the division. 5. Of Elizabeth Davis; who deposed, that she always understood, that on the division of Robert Colvert’s estate, Sue was left with Mrs; Millstead as her part thereof, and the other slaves were divided among that testator’s children, and that the slaves in possession of Joseph .Bruce, claimed by William Millstead, were the descendants of Sue. 6. Of Ann Browner; who deposed, that Mrs. Millstead told her, that Sue was allotted to her in the division; that she always understood, that such was the case, and that the division was made by Mr. Smallwood and Mr. Courts, and she had never heard of any objection to the division ; that after the division she saw a child ‘named Hannah in Sue’s arms, which she understood and believed was Sue’s child; and that the slaves in Joseph Bruce’s possession, claimed by William Millstead, were the descendants of Sue. And 7. Of Joseph Young; who proved, that William Millstead demanded the slaves in- question of Joseph Bruce, in 1791. The ages of the deponents were stated in their depositions; that of the eldest, at the time of taking depositions in 1793, was eightjr-one years, and that of the youngest forty-nine.

In March 1804, the cause was heard “upon the bill, answers, exhibits and examinations of witnesses;’’ and chancellor Wythe made an interlocutory decree, declaring that the third of the slaves, bequeathed by the will of the testator Robert Colvert to his wife, upon the death or attainment to full age of his son Samuel, was a full dominion and absolute property; that the slave Sue, one of those in controversy, and the progenitrix of the rest, having been allotted to the widow in the division, and that division, if not assented to, acquiesced in by the other legatees, and this property having been in the possession of her second husband John Millstead, the same passed by his deed of gift to the plaintiff William Millstead; and, therefore, directing, that the defendant Isabella Bruce should deliver to the plaintiff the slaves, Sue, Hannah, Thornton and Delphia; James Colvert, the slaves Beonard and David; and Samuel Colvert, the slaves Harry and Watt; and that those defendants should render accounts of the profits, &c.

An appeal was taken from this decree; which having abated by the death of the parties, it was, afterwards, in June 1809, ordered, by consent of parties, that the suit should be revived in the name of the administratrix of the plaintiff William Millstead, and leave was given her to amend the bill, and make new parties.

The amended bill made Robert Colvert and Charity his wife one of the children of the original defendant Isabella Bruce who was now dead, and the other children and distributees of that decedent, parties defendants; called upon them to discover the number &c. of the slaves claimed in *the original bill, and the increase of them, in the possession of these defendants respectively, and the time at which their possession commenced; and prayed a decree for the slaves, and an account of profits.

These defendants answered, and disclosed the number &c. of the slaves in their possession, respectively.

There were no new proofs on either side.

The cause having been afterwards trans*45ferred to the superior court of chancery of Fredericksburg, it was there heard, in April 1819, “on the bills, answers, exhibits, and examinations of witnessesand chancellor Green decreed, that the several defendants made parties by the amended bill, should respectively deliver to the plaintiff, the several slaves acknowledged by their answers to be in their possession, and render, accounts of profits &c. From this decree, Robert Colvert appealed; but there was afterwards a compromise between the plaintiff and him, and this appeal was dismissed.

And in April 1822, the cause was again heard “on the papers formerly read;” and the chancellor decreed, that Samuel Colvert, defendant in the original bill, should deliver to the plaintiff, the slaves Harry and Watt mentioned in his answer, and render an account of the profits thereof &c. From which decree, Samuel Colvert appealed to this court.*

Leigh, for the appellant,

argued, 1. That the division of the testator Robert Colvert’s estate made in Maryland in *1765, under which the appellee claimed title, was so irregular and incomplete that it conferred no right, especially, in respect to the appellant, Samuel Colvert, who was under age. 2. That as it is proved, that Joseph Bruce, under whom the defendants in the amended bill claimed, was in adversary possession of the slaves claimed by William Millstead, as early as 1791, more than five years before the commencement of this suit, the statute of limitations of itself afforded a complete defence to all persons claiming under him; nor did the pendency of Millstead’s suit at law against Bruce, in the district court of Fredericksburg, avoid the operation of the statute; Flam v. Bass’s ex’ors, 4 Munf. 301. And if Samuel Colvert claimed under Joseph Bruce, the statute was also a bar to the claim asserted in this suit, to the slaves held by him. 3. That if Samuel Colvert did not claim under Joseph Bruce, then there was no proof to sustain the appellee’s claim to the two slaves Harry and Watt held by him. For, he contended, the only evidence properly belonging to this cause, was the deposition of Mrs. Woodward ; and that proved nothing more than that the woman Sue was allotted to Mrs. Millstead in the division of 1765; it did not prove, that any one of the slaves claimed by the appellee, was descended from Sue. The depositions taken in the suit at law against Joseph Bruce, were not competent evidence against the appellant Samuel Colvert, because they were taken in a cause to which he was not party or privy.

Johnson, for the appellee,

said, that admitting the division of 1765 to have been premature, and that division, as well as the division made in 1768, to have been ever so irregular and incomplete, yet it was obvious, that there must have been such a long continued and entire acquiescence in it by all parties, before this controversy arose, as alone sufficed to preclude them from disturbing it. As to the statute of limitations, he said, it did not appear how or under whom the appellant Samuel Colvert claimed; his possession commenced, as he admitted in his answer, as late as 1796, and this suit was brought in 1798; besides, the statute of limitations 5was nowise pleaded. He relied on the depositions taken in the suit at law between Millstead and Bruce, as containing the proof, that the slaves Harry and Watt descended from Sue who was allotted to Mrs. Millstead. He adverted to the established rule of practice in the courts of chancery, requiring exceptions to depositions to be taken in writing, before the hearing, which had been always and ought to be strictly enforced, in order to avoid surprize upon the party relying upon them to establish his case. Now, no exception to the reading of the depositions in question, was taken, before or at the hearing: they were read at the hearing before chancellor Wythe in 1804, — read again at the hearing in 1819, and lastly, read in 1822, against the appellant, without objection of any kind. It was too late to object to them now. And if the objection had been made in the court of chancery, and in due time, it ought not to have prevailed ; for the only material purpose of these depositions was to prove the descent of the slaves held by the appellant, from the woman Sue. Hearsay and general reputation were competent evidence to prove pedigree; and these depositions ought to have been received as proof of general reputation as to the pedigree of the slaves.

Leigh replied, that though hearsay and general reputation were competent proof on questions of pedigree, still such general reputation ought to be proved by the examination of witnesses in the cause in which it is offered, so that the party against whom it is offered, may have an opportunity to cross examine the witnesses. The depositions in question could not be regarded as depositions in this cause; they were evoked from another cause between other parties ; they were, in fact, exhibits. Suppose a transcript of record of the proceedings in Millstead’s suit against Bruce, had been exhibited in this cause; that, surely, could not have been read against Samuel Colvert r could copies of the depositions which were part of those proceedings, be read against him? The rule of practice in the courts of chancery had never been understood to require, that exceptions to the reading of exhibits, should be taken in writing before *the hearing; nor had it ever been understood to require that objections to evidence on the ground of competency, apparent on the face of the evidence itself, should be stated in writing, before the hearing. The rule had been confined, in practice, to objections to depositions on the score of irregularity in the *46taking of them, such as the want of due notice, and the like. Objections to competency were always taken ore tenus at the bar; and it was the dut3” of the court, at the hearing, to discard from consideration all incompetent evidence; and if it founded its decree upon incompetent evidence, it was error.

*

Depositions. — See monographic *note*on “Depositions” appended to Field v. Brown, 24 Gratt. 74.

†

Chancery Practice — Statute of Limitations — How Advantage Taken. — No one can avail himself of the statute of limitations in a suit in equity without making the defense by plea or answer. To this effect, the principal case, Hickman v. Stout, 2 Leigh 10, Tazewell v. Whittle, 13 Gratt. 344, Smith v. Pattie, 81 Va. 665, Gibson v. Green, 89 Va 526, 16 S. E. Rep. 661, were cited in Hubble v. Poff. 98 Va. 646, 37 S. E. Rep. 277. See. in accord, cases cited in *foot-note*to Tazewell v. Whittle, 13 Gratt. 329.

In the case of Hubble v. Poff, 98 Va. 646, 37 S. E. Rep. 277, it was held that the statute of limitations cannot be availed of in a court of equity by a demurrer to the bill.

But in West Virginia, the rule seems to be different. ior in Humphrey v. Spencer, 36 W. Va. 18, 14 S. E. Rep. 413. it is said: “The statute of limitations mustbe in some way relied on by demurrer, plea, or answer, *Colvert*v. *Millstead,*5 *Leigh*88; Hickman v. Stout. 2 Leigh 10: Tazewell v. Whittle, 13 Gratt. 344; Seborn v. Beckwith, 30 W. Va. 774, 5 S. E. Rep. 450; Jackson v. Hull, 21 W. Va. 601; Bart. Ch. Pr. 83. The court cannot plead it of its own motion. Gee v. Hamilton, 6 Munf. 32; Smith v. Hutchinson, 78 Va. 683.” For further West Virginia decisions in accord with Humphrey v. Spencer, see *foot-note*to Tazewell v. Whittle. 13 Gratt. 329.

See further, monographic *note*on "Limitation of Actions” appended to Herrington v. Harkins, 1 Rob. ■591.

*

Nothing appeared in the record, to account for the delays in this cause in the court of chancery ; they were probably owing to the neglect of the parties. After the cause was brought to this court, the parties entered into a treaty of compromise ; and their counsel understood that it was compromised, and kept the cause in court, in order to enter decrees according to the compromise, when they should be furnished with evidence of the terms of it. When this evidence was furnished.it appeared, that the cause had been compromised by the appellee with the appellant Hubert Colvert, but not with the appellant Samuel Colvert. It was the appeal of the latter that was heard here ; but it was necessary to state the whole case, in order to make it intelligible.— Note in Original Edition.

CARR, J.

The first question I shall consider in this cause, is, whether the depositions taken in the suit brought at law by Millstead against Bruce, can be read here? Without having made up my mind as to the effect of the objection to the competency of this evidence, if the exception had been timely taken in the court of chancery, I am of opinion, that such exception taken here, at this late day, cannot avail. It is to be remembered, that the question of title, with all the children of the testator Robert Colvert, was the same; all claimed the slaves under his will. Joseph Bruce, against whom the action at law was brought, was one of those claimants, in right of his wife Isabella. The plaintiff in that suit was the same, relying on the same right which he relied on here; and the title of the defendants here, was identical with that called in question there. Indeed, Isabella the widow of Bruce was a defendant to this bill. In addition to this, we must hold in mind, that this was a question of pedigree, on which hearsay and reputation are evidence; and on which, all must admit, the depositions of these witnesses would be unquestionable evidence, if the witnesses were dead. Under these circumstances, it seems clear to me, that these depositions ought to have been objected to in the court of chancery, if any where. Thirty years ago, chancellor Wythe decided this cause on this very evidence; can we say he did wrong in receiving it, when he found it filed in the record? when *under certain circumstances (the death of the witnesses) it would have been clearly good? and when no objection was taken to the reading it? Again, eighteen years afterwards, chancellor Green made the same decree, upon the same evidence, without exception taken. And now, in this court of last resort, forty years after the depositions were taken (for that was in 1793-4) we are told, that they are not good evidence. Does any one imagine that a single one of the witnesses is now alive? Consider their ages in 1793. The youngest of them was then forty-nine years old, the eldest eighty: add forty years, and then tell me, whether it would be right, after all the delay which has already befallen this cause, to send it back for the purpose of ascertaining whether these witnesses are alive or dead? for if dead, the evidence is above exception. I am well satisfied, that we ought to receive the evidence, without the form of this useless inquiry.

By the will of Robert Colvert, I think (with chancellor Wythe) that a “full dominion, a perpetual property” in one third of the slaves, after Samuel Colvert’s attainment of age, was given to his widow; in the meantime, she had the possession and ownership of the whole. I think the evidence shews, that there was a division of the slaves and their increase, partially made in 176S, while Samuel was under age, and completed in 1768, after he attained to full age; and that in this division Sue was allotted to Mrs. Millstead. The division is proved by several witnesses. No doubt Samuel Colvert, when he came of age, might have set aside this division, so far as any injustice was done him; but there is not the slightest proof that he ever objected to it. On the contrary, it would seem from the evidence of Hanson, that he assented to it; for he says that, in 1768, he was applied to by the executors, and all the representatives of Robert Colvert, to settle the estate; that they laid before him the proceedings of Smallwood and Courts, which they allowed to be a settlement, and which he, on examining it, was of opinion they ought to abide by, so far as it went. All the witnesses say, that in the division *Sue was allotted to Millstead, the husband- — she had many children, it seems; and in 1791, Millstead made a deed of gift of her and them to William Mill-stead, the original plaintiff in this cause.

The next question is, are the slaves Harry and Watt (admitted by Samuel Colvert to be in his possession) descendants of Sue? I think this sufficiently established by the evidence.

I do not think the statute of limitations applies, 1st, because it is not relied on either by plea or answer; and 2ndly, because the appellant says, in his answer, that the slaves held by him had come into his possession in the fall of 1796, and this bill was filed in 1798. I think the decree should be affirmed.

CABEEL, J., concurred.

TUCKER, P.

That there was a partition of the slaves bequeathed by Robert Colvert to be divided between his wife and children at the maturity or death of his son Samuel, that it took place about the year 1765, and that the slave Sue was assigned to the widow in part of her third, are facts that I do not think can be controverted. The3T are stated in the bill, and are not denied by the answers which rest the defence on the division’s having been premature, without authority, and incomplete. They are moreover proved by Mrs. Woodward, the only witness in this case, though her testimony very distinctly proves that the division was imperfect and not completed. This partition, if such it may be called, was made at least as long ago as the year 1777, since the testator, at that date, had been dead twenty years, and Samuel was of course of age. It is, however, very probable it was made much earlier. From the time of the partition, when John Millstead was in possession of the slaves, and insisted that the allotment, so far as it had gone, should stand, we hear nothing of any portion of the slaves until 1791, when he conveyed them to his nephew William Mill-stead, by whom a suit was soon after instituted *for part of them, in the Fredericksburg district court. There being no evidence of a change of possession until that time, we must take it to be unchanged, and thus must presume, that John Millstead continued in possession of the slave Sue, and of course of her increase born after the partition, until some time *47anterior to the year 1791. If Samuel did not arrive to full age until 1777, this was fourteen years after his maturity: if he attained to manhood about the year 1768, it was twenty-three years after. During this period, we hear of no measures taken among the parties for the completion of the partition, no question made as to the allotment to the widow, no suit instituted for the purpose of compelling a new and more perfect, regular and equitable division, and no attempt to divest John Millstead of the possession he continued to hold under an allotment, which, at the time it was made, he insisted should stand as far at least as it had gone. Admitting then, as 1 do most distinctly, that this division was imperfect, irregular and premature, and that, in fact, it went no further, probably, than the allotment of Sue to the widow, yet in this allotment I think we must infer a perfect acquiescence, and an acquiescence for a period between fourteen and twenty-three years.

The next question is, ought this imperfect and irregular division to be confirmed in consequence of that acquiescence? I think it ought. There is no principle better settled, than that a partition long acquiesced in by the parties, generally, will not be disturbed for irregularity (Carter’s ex’or v. Carter, 5 Munf. 108, 114), not even by a party who never acquiesced in it, though all others concerned had done so, unless he can shew that it is unjust or unequal. It would be highly mischievous were it otherwise, particularly in this country, where divisions of estates, allotments of dower, and the like, are made with so little attention to the strict requirements of the law ; Fitzhugh v. Foote, 3 Call 13; Ireland v. Rittle, 1 Atk. 542. Under these authorities, there can be no doubt, that, if this division had been completed, however irregular or premature it might be, it would now be ratified on the ground of long acquiescence. *Now, I think, it is not going too far to say, that, as the allotment of the widow’s part was made, as the husband insisted that so far as it had gone the division should stand, and as all concerned acquiesced for so many years in the allotment, and the claim of right under it, we must take the division as complete between the widow on the one part, and the children on the other, however incomplete it may have been as between the children themselves. There is nothi - g in the sanction given irregular partitions after long acquiescence, which does not fully apply to the circumstances of this case. I am, therefore, of opinion, that John Millstead was entitled to the slave Sue and her children born after the allotment.

That Harry and Watt were the descendants of Sue, born after she was allotted to Mrs. Millstead, is sufficiently proved by the depositions in the other cause, if they are to be read in this. I come then to the inquiry, how far the depositions in the action at law between Millstead and Bruce, are evidence against Samuel Colvert, who was no party to that suit? That the depositions were properly introduced as evidence in this suit, and that they were read upon the hearing, can admit, I think, of no doubt. The cases of the Bruces and Samuel Colvert were not distinct in the court of chancery. There was but one bill, in which these several defendants were united. It cannot be denied, that the depositions taken between Millstead and Bruce, in the action at law, were evidence as against the defendants claiming under Bruce, in the suit in chancery, and were properly filed, and must have been read as to them, upon the hearing. The depositions, then, having been read and properly read, the question still recurs, were they evidence as against Samuel Colvert, who was no party to the suit in which they were taken. I am of opinion, they could not be evidence of any facts set forth in them, except the fact of pedigree; of that, indeed, they would have been properly referred to as evidence, if it could have been shewn, that the witnesses were dead. This, however, does not appear; and therefore, unless they were property evidence against Samuel *Colvert in toto, they cannot be used on the question of pedigree. Now, in the case of Stubbs v. Burwell, 2 Hen. & Munf. 536, it was decided, that though a deposition was regularly taken in the cause, as to one party, there having been due notice to him, yet it could not be received as evidence to affect the interest of another party, as to whom there was no notice. Much less, then, can these depositions taken in another suit, to which Samuel Colvert was not a party, be read as evidence against him. If, pursuing the idea of the counsel, that we are to take it for granted, that the chancellor reads every thing at the hearing, that appears upon the record, we are to presume he read those depositions as evidence against Samuel Colvert, then I am of opinion he erred in doing so. If he did not, then he could have had no evidence before him, to establish the fact that Harry and Watt were descendants of Sue. But as it appears upon the face of the record, that there is evidence attainable by which the fact can be established, I am of opinion, that we should send the cause back for the purpose of inquiring into that fact. To this the case of Stubbs v. Burwell is full in point; for, in that case, the depositions not being taken upon notice to Stubbs, but appearing to contain matter which would have justified the decree, if they could property have been read, this court sent the cause back with directions to the court of chancery to afford the plaintiff an opportunity to take the depositions over again, upon giving due notice to the defendant Stubbs.

Decree affirmed.