#### *Sheldon & als. v. Armstead’s Adm’r & als.*

January Term, 1851,

Richmond.

(Absent Cabell, P., and Brooke, J.)

Executors and Administrators†—Case at Bar.—G died in 1762, making W his executor. In 1784 bill by legatees of G against administrators of W for an account. The administrators having turned over the estate of W to D the husband of S the only child of W, he attends to the settlement of the account before the commissioner, which is returned in 1798. After the death of D, S the executrix of D, and her second husband, in 1804, upon a rule for counter security, surrender the office, and R another ex’or of D qualifies, to whom S and her husband pay over the assets in their hands. In I805bill amended, and S and her husband and R executor of D made parties, and they answer contesting the claim of plaintiffs, and except to the report. After the revival of the suit against R, he pays over to the legatees of D a large amount of the assets in his hands *;*and in 1814 he dies, when the suit is revived against the administrator *de bonis non*of D ; and in 1816 there is a decree against him based upon the report of 1798. He takes an appeal, and in 1821 the decree is reversed for a matter of form, but affirmed in other respects, and the Court below is directed to entera decree accordingly. In 1822 the Court below enters the decree in favor of all the legatees of G except B, as to whom her marriage is suggested, and the entry of the decree is postponed until the husband is made a party. Afterwards B’s husband dies ; and then in 1826 all the legatees *of G, including B, file their bill against the administratrix of the administrator *de bonis non*of D and his legatees, and the representative of R, to have satisfaction of the decrees of 1816 and 1822. In 1829 the bill is dismissed as to the administratrix of the administrator *de bonis non*and the representative of R, which on appeal, is reversed in 1836. In 1838 the plaintiffs make the sureties of the administrator *de bonis non*of D and the legatees of R parties. Held:

i. Same—Decrees—Conclusiveness. — That the decrees of 1816, 1821 and 1822, taken in connexion with the decree of the court of appeals of 1836, conclusively establish against D and all his representatives, the indebtedness of W’s estate to the legatees of G: that they had a right to follow the assets in the hands of D ; that a sufficiency of such assets had come to his hands ; and that his representatives who have received his assets are accountable to said legatees for the assets so received.

2. Same-Judgment against Administrator d. b. n.‡— Effect— Qtl&ire : What would be the effect generally of a judgment against an administrator *de bonis non*in establishing a debt against the estate, so as to conclude a former executor or administrator, and thereby subject him to a *devastavit?*

3. Same—Same—Same—Case at Bar.—Under the circumstances of this ca.se, the decree against the administrator *de bonis non*of Din 1822. in pursuance of the decree of the Court of appeals of 1821, and substantially affirming the decree of 1816, must be held as conclusive upon R the prior executor of D, upon the question of the indebtedness of the estate of W ; the right to follow his assets in the hands of D ; the receipt of sufficient assets by D for the payment thereof ; and the liability of his estate for the amount.

4. Same—Devastavit—What Constitutes.-That R having paid over to the legatees of D the assets, with full notice of the claim oí G’s legatees, and after the suit was revived against him, such payment constituted a devastavit.

5. Same—Credits—Case at Bar.—A part of the assets of D’s estate having been retained by R, and recovered by suit from his executor after his death, by the administrator *de bonis non*of D, R is to be credited for the amount so recovered.

<5. Chancery Practice—HultifariousneAS — Case at Bar.—As the legatees of G claimed by force of the same decrees ascertaining the rights of all ; and having a common interest, are seeking satisfaction out of a common fund, it was proper to unite in one suit to get the benefit of the former decrees in their favor ; and the bill is not multifarious.

7. Same—Same—Same.--The right of the plaintiff B to prosecute the suit to enforce the previous decrees, is not to be distinguished from that of the other plaintiffs.

*8. Fiduciaries —Statute Limiting Actions against—Effect on Case at Bar.—As the decree of 1816 was suspended by the appeal, and no definite decree establishing the debt against the estate of D. was made until 1822, and as until then the claimants had no right to proceed against the representative of L for his devastavit, the statute of 1826 was no bar to the suit commenced in that year ; nor was the suit barred by the delay of the plaintiffs.

9. Executors and Administrators—Liability—Case at Bar.—The personal representative of R having paid over the assets to the devisees and legatees of R, without notice of the plaintiffs* claim, it was proper to subject them in the first instance, instead of the personal representative.

10. Same—Credits—Case at Bar.—That the amount paid over by the administrator of R to the administrator *de bonis non of*D, under the decree of the Court, should be applied as a credit to R, to the principal of the debt due from D to G, for which R was held responsible.

11. Case at Bar.—That some of the legatees of G having abandoned the prosecution of their claim, the liabilities of the parties who are responsible for W are diminished to the amount of the shares of these legatees.

*10412. Same.—The wife of the personal representative of L, was a legatee for life of L, and had died, and the property had been transferred to those entitled in remainder, before any recovery in the case. B having no assets of his wife, cannot be held responsible on account of such life estate which had previously terminated ; and the assets of L which the claimants were entitled to follow, had passed into the hands of those entitled in remainder.

13. Same.—Under the circumstances of this case, the plaintiffs should proceed first against the legatees of D for the recovery of the amount due them ; and should only recover from the legatees of L so much of their claim as cannot be recovered from the legatees of D.

>4. Same—Statute Limiting Actions against Fiduciaries.—As the decree of 1822 ascertained the right of the plaintiffs to proceed against the sureties of the administrator *de bonis non*of D, and they were not made parties until 1838, the act of 1826 is a good defence for them against the claim of the plaintiffs.

Gill Armstead and William Armstead were brothers and partners in business, residing in the county of New Kent. Gill Armstead died in the year seventeen hundred

and sixty-two, having first made his will which was duly admitted to record, by which he gave his slaves and personal estate to be equally divided among *his six children as they should come of age or marry; and he appointed his wife Betty, his brothers William and John Armstead, and his friends Richard Allen, sen., Richmond Allen, and Dudley Williams, sen., his executrix and executors; all of whom qualified.

Previous to April 1784, Betty Armstead the widow and executrix of Gill Armstead, had married John Lewis, and William and John Armstead and Richard Allen, sen., the executors of Gill, had died. On the 7th of that month a bill was exhibited in the high Court of chancery at Richmond, by William Armstead, Miles Seldon, jr., and Betty his wife, John Cary and Susanna his wife, Mary Burwell, John Ambler and Prances his wife, and Martha Armstead, the said William Armstead and the female plaintiffs being the children and legatees of Gill Armstead, against Dudley Williams and Richmond Allen surviving executors of Gili Armstead, William Clayton, administrator, and Mary Armstead, administratrix of William Armstead the brother and executor of Gill, and William Armstead administrator of John Armstead, who was also a brother and executor of Gill Armstead, the object of which suit was to procure a settlement and distribution of the estate of Gill Armstead in the hands of his executors.

Dudley Williams and Richmond Allen, the surviving executors, filed their answer, stating that the management of the estate had been wholly left to William and John Armstead and the widow Betty, and that the respondents never interfered with the estate until after the death of William and John Armstead, when they possessed themselves of such of the testator’s books and papers as they could find; and although the books shewed large balances in some instances, due the testator, yet they could collect none of them; they having been paid either to Gill Armstead in his lifetime, or to their co-executors William and John Armstead, after his death. The bill ■ was also answered by Clayton and *Mary Armstead, executor and executrix of William. Armstead, stating •their willingness to account as the Court should direct: And John Armstead’s administrator answered, claiming that his intestate was in advance to the estate of his testator; and saying that he was ready to account.

In 1786, Betty Lewis the executrix of Gill Armstead, was made a defendant, and filed her answer: and in November of the same year a decree was made directing, 1st. That Betty Lewis, Dudley Williams and Richmond Allen, render an account of the administration of their testator’s estate. 2d. That William Clayton and Mary Arm'stead render an account of their intestate William Armstead’s administration on Gill Arm-stead’s estate. 3d. That William Armstead, administrator of John Armstead, render an account of the administration of said John upon the estate of Gill Armstead.

Under the foregoing decree commissioner Hay made a report in March 1798, shewing due from the estate of William Armstead the, executor, to the estate of Gill Armstead, the sum of *£*2168. 18. 6¿L ; and from the estate of John Armstead the sum of *£*422. 9. The commissioner then proceeded to state accounts between the executors and the legatees of Gill Armstead, based on these balances, shewing the amount due to each legatee.

The balance found against William Arm-stead seems to have arisen out of the transactions of the partnership which had existed between himself and Gill Armstead; of which partnership no mention was made in the bill or in any of previous proceedings.

In June 1799, all the defendants being dead, subpoenas to revive the suit against the representatives of William and John Armstead, were awarded; and leave was given the plaintiffs to amend their bill by making William Dandridge a defendant. William Dandridge was the husband of Susanna, the only child of William Armstead the executor of Gill Armstead; and although *not a party in the cause when the accounts were taken, was in fact the party principally interested, and was the party who attended to the settlement of the accounts. Although he seems to have acknowledged the service of a subpoena upon him, he was not made a party by an amended bill during his lifetime. In the early parf of the year 1803 he died, having by his will appointed his wife Susanna and William Langborne and John Bassett his executrix and executors; and Susanna Dandridge alone qualified, in June 1803.

■ In 1804 or 1805, Susanna Dandridge having intermarried with David Dorrington, *105the plaintiffs filed a bill of revivor and supplement, in which were recited the previous proceedings in the cause, the leave to amend the bill by making William Dandridge a defendant, granted in 1799, the issuing of subpoenas to revive under that order, the death of William Dandriflge, the qualification of his widow as executrix and her intermarriage with Dorrington, and the appointment of William Banghorne and John Bassett as executors of Dandridge. The bill charged the existence of the partnership between Gill and William Arm-stead ; that at the death of Gill, William was indebted to the concern; and that after Gill’s death, he possessed himself of the partnership effects to a considerable amount, and took upon himself the entire management of the said Gill’s personal estate, as executor. That he kept open the partnership store for twelve months after Gill Armstead’s death, receiving the profits; at the end of which time he sold off the stock, and took into his possession all the books, papers, bonds, &c., of the partnership, and of Gill Armstead. That after the marriage of William Dandridge with Susanna, the only child of said William Armstead, the administrators paid over and delivered up to Dandridge, in right of his wife, all the property of William Armstead, and whatever was due from them as his administrators, before they had accounted *for any of said William Armstead’s transactions either as surviving partner or as executor of Gill Armistead. That there was then no personal representative of the estate of William Armstead; and that under these circumstances the complainants had a right to follow the personal assets of William Armstead in the hands of William Dandridge and his representatives, for satisfaction of their claims against him as surviving partner and executor of Gill Arm-stead. They therefore made Dorrington and wife, Bassett and Bangborne defendants, and asked for satisfaction out of the estate of William Dandridge.

On the 12th of May 1804, on the motion of the sureties of Mrs. Dorrington as executrix of Dandridge, the Court made an order on Dorrington and wife for counter security; and on the 3d of June 1805, Dorrington appeared, and for himself and his wife consented that the estate of William Dandridge should be delivered to the sureties ; and the same was ordered accordingly: whereupon William Bangborne qualified as executor of William Dandridge.

Dorrington and wife answered the amended and supplemental bill, resisting the pretensions of the plaintiffs on various grounds. There was also a subpoena to answer the bill, issued in November 1805, and returned served on Bangborne; and an attachment was issued against him in July 1806, the service of which he acknowledged ; and in October 1806, he filed his answer, in which he relied on the great lapse of time since the death of Gill Armstead as furnishing a presumption that all matters of the partnership had been duly settled, and the plaintiffs satisfied all proper demands; and in aid of this presumption he relied on the facts that the plaintiffs had many years before received their proportions of Gill Armstead’s estate without any reservation as to the partnership; that several of the plaintiffs afterwards gave their bonds to William Armstead, which they *would not have done if there had been no settlement; and that John Armstead, the acting executor, actually received a large portion of the 'goods, from which a settlement of the partnership should be inferred. He further denied the right of the plaintiffs to call the defendant, or the estate of his testator, to account concerning the matters mentioned in the bill; and he pleaded the statute of limitations.

It appears that on the 29th of December 1806, Dorrington and wife paid over to Bangborne assets of the estate of William Dandridge to the amount of 20,698 dollars 17 cents; and on the same day he paid to the legatees of Dandridge 20,529 dollars 48 cents: and it also appears that he received other assets, amounting to upwards of 10,000 dollars; and that his payments to the legatees amounted to upwards of 27,000 dollars of principal.

In 1815 William Bangborne died, and John Bassett having refused to qualify as executor of William Dandridge, the estate was committed to Thomas H. Prosser, high sheriff of the county of Henrico. The cause came on to be heard on the 1st day of June 1816, when it was revived in the name of Abraham A. Green and Elizabeth A. A. Cocke, children of Martha Green,, who was Martha Armstead, and by consent of the plaintiffs was dismissed as to the representatives of John Armstead; the plaintiffs not wishing to prosecute their claim against his estate: And the Court, holding that it was not necessary to bring the representatives of the deceased executors of Gill Arm-stead, or of the deceased administrators of William Dandridge, before the Court, and reciting that it appeared that William Arm-stead, whose representatives, Mary Arm-stead and William Clayton, were originally parties to this suit, was the principal acting executor of Gill Armstead, and surviving partner of said Gill and William; and that he received the greater part of the debts of said partnership, as well as *those of said Gill in his individual right, and that after his death all the estate of the said William Armstead, as well as the books, papers and evidences of debts, belonging as well to the said partners as to the said Gill Armstead, came into the hands of William Dandridge, formerly a party in this cause, who intermarried with Susanna, the only child of said William Armstead, now the wife of David Dorrington, both of whom are defendants; and overruling all the exceptions of the defendants, was of opinion that the plaintiffs had a right to follow the estate of William Armstead which came to the hands of William Dandridge, who it appears possessed himself of a sufficiency of that estate, as *106well as of the debts due to Gill Armstead’s estate, to pay the claims of the plaintiffs found to be due to them respectively. It was therefore adjudged, ordered and decreed, that the defendant Thomas H. Prosser, committee of the estate of William Dandridge, out of the estate of the said William which had or might come to his hands to be administered, should pay to the plaintiff William Armstead, *£*490. 4. 8J¿., with interest at five per cent, per annum on *£*361. 9. 9., part thereof, from the 11th day of May 1778, till paid; to the plaintiff Betty Selden, in her own right, *£*245. 7. 10j£., with like interest on *£*243. 10. 11. from the 29th of October 1774, till paid; to the plaintiff Susanna Cary, in her own right, *£*348. 13. 8., with like interest from the 16th of March 1777; to the plaintiff William Selden, administrator de bonis non of Joseph Selden, *£*188. 6. 7J¿-> with like interest from the 26th November 1774, in right of his deceased wife Mary; to John Ambler, surviving husband of his deceased wife Prances, *£*361. 9. 9., with like interest from the 25th October 1767; to Abraham A. Green and Elizabeth A. A. Cocke, children of Martha Green, who survived her husband, *£*361. 9. 9., with like interest from the 25th of October 1767; and their

*On the 3d of June 1816, administration de bonis non on the estate of William Dandridge, was granted to Bartholomew Dandridge his son, who executed a bond in the penalty of *£*20,000., with Thomas H. Terrill and three others as his sureties; and thereupon took an appeal from the foregoing decree of the 1st of June 1816. On the 11th of December 1821, the cause was decided in the Court of appeals, when the Court, for reasons stated in the decree, approved the decree of the Court of chancery affirming the report of the commissioner, and overruling the exceptions thereto; notwithstanding some of the plaintiffs had not strictly entitled themselves to a decree by taking administration on the estates to which they were so respectively entitled; and it was held that under the circumstances of the case the Chancellor would have been justified in decreeing payment to these appellees respectively, of the sums mentioned in the decree, on their giving bond with security to the satisfaction of the Court, to the appellant +o indemnify him from any claim which might be made by any legal representative of the person in whose right such payment was decreed. The decree was therefore reversed, with costs, and the cause was remanded to the Court of chancery to have a decree entered according to the foregoing principles; and in case of a failure to give such bonds, to have the suit revived in the name of the legal representative of the party in whose right the claim is, and proceeded in to a final decree.

On the 18th of July 1822, a decree was made in the Chancery court in conformity with the decree of the Court of appeals, in favour of the plaintiffs respectively, against Bartholomew Dandridge, administrator de bonis non of William Dandridge, for the sums mentioned in the decree of the 1st of June 1816, except as to Elizabeth A. A. Cocke. As to her, the decree was, that “it being suggested that Elizabeth A. A. Cocke, one of the plaintiffs, hath intermarried with--Booth, this cause *is retained for further proceedings as to that plaintiff; and leave is given the said Booth and wife to file a bill of revivor and supplemental bill. At the time this decree was entered Bartholomew Dandridge’s powers as administrator had been revoked, and David Dorrington and his wife had been allowed, at the September term of the County court of Henrico, in 1821, to give the counter security required in 1805, and to resume the administration of William Dandridge’s estate. And thus terminated this suit of Armstead v. Arm-stead.

. In the month of September 1826, the bill in the present suit of Armstead v. Dandridge was exhibited in the District Court of chancery then held in Williamsburg, by Gill Armstead and Thomas B. Allen, administrators of William Armstead deceased, one of the children of Gill Armstead deceased, and one of the plaintiffs in the former suit of Armstead v. Armstead, Betty Selden, Susanna Cary, William Selden, administrator of Joseph Selden, John Ambler and Abram A. Green, being the same plaintiffs as in the former suit (except Elizabeth A. A. Booth, who had obtained no decree, but as to whom the cause was retained and leave to amend the bill given,) against David Dorrington and his wife Susanna, executrix of William Dandridge deceased, William Duval, the administrators of John Pendleton, and the committee and administrator of John Adams, securities of said Susanna as executrix aforesaid, Burwell Bassett administrator of William Lang-borne, who was one of the executors of William Dandridge, Bartholomew Dandridge administrator de bonis non of William Dandridge deceased, and in his own right as heir and devisee of said William Dandridge, John Williams and Scianna his wife, Eleanor Dandridge, John B. Richardson and Lavinia his wife, and Robert P. Dandridge, heirs and devisees of the said William Dandridge. The object of this bill is to carry into effect the decree obtained in the same Court by the plaintiffs against Bartholomew ^Dandridge, as administrator de bonis non of William Dandridge; to which decree and to all the proceedings on which it is founded, reference is made by’ the bill as part thereof.

The bill avers, that the said decree has been unavailing, because the estate of William Dandridge has been all wasted or sold, so that no execution can reach it, although his estate is fully able to . pay all the demands against it; that Susanna Dandridge, the widow of William, qualified as his executrix, and soon thereafter intermarried with Dorrington, who received considerable estate of said William into their hands, which they wasted and converted to their *107own use; that William Bangborne also qualified as executor of said William Dandridge, on the 3d of June 1805, and received a large estate into his possession, which he also wasted or misapplied; that Bartholomew Dandridge qualified as administrator de bonis non of William Dandridge, and received a large estate into his hands of the said William Dandridge, which he also wasted and misapplied; that the said William Dandridge left a large real estate, which is in the hands of his heirs and devisees, and which may be liable to the plaintiffs’ demands, in the event that the personal estate was expended in the payment of specialty debts, or to the extent that it was so consumed; that some or all of the defendants are liable for the plaintiffs’ said decree, and relief is accordingly prayed against them.

The administrators of John Pendleton, one of the sureties of Susanna Dorrington as executrix of William Dandridge, answered, averring their ignorance of the matters charged, and calling for proof of them, and insisting that the claims of the plaintiffs should be regarded as stale demands, their intestate Pendleton having been dead more than twenty years, and no demands ever before made.

*William Duval, another surety of Mrs. Dorrington, answered the bill to the same effect.

Burwell Bassett, administrator of William Bangborne, also answered the bill, admitting that Bangborne was executor of William Dandridge, and calling for proper and legal proof of the plaintiffs’ demands. He denies that Bangborne ever wasted the estate of William Dandridge, or any part thereof, and avers that the said estate was duly and fully administered by Bangborne in his life, and his administration duly settled by the respondent, since his death, under an order of the Richmond Chancery court; upon which settlement the balance, and divers bonds, &c., for the payment of money found among the papers of Bang-borne, and appearing to be due to William Dandridge’s estate, were paid and handed over to Bartholomew Dandridge, the administrator de bonis non of William Dandridge. under the decree of said Court; that since the death of Bangborne, the heirs or devisees of William Dandridge had divided among themselves, by sale under a decree of said Court, a large real estate, amounting to about 60,000 dollars; that the complainants had prosecuted their claims against Bangborne, in his lifetime, and failed to establish them against him, and should not now be permitted to disturb the respondent. He exhibits with his answer, Bartholomew Dandridge’s receipt for sundry bonds, certificates of stock, &c., handed over to him.

In 1827 the death of Susanna Dorrington was suggested, and the cause was revived against Mosby Sheppard, sheriff of Henrico and committee of her estate, and of the estate of William Dandridge; also the death of Bartholomew Dandridge was suggested, and the cause revived against Catharine Dandridge, his administratrix.

At the January term 1828, a decree was rendered for the settlement of the following accounts, viz: 1st. An account of Bartholomew Dandridge’s administration of 'K'William Dandridge’s estate. 2d. Of Catharine Dandridge’s administration of Bartholomew Dandridge’s estate. 3d. Of William Bangborne’s administration of William Dandridge’s estate, taking as prima facie true, liable to be surcharged and falsified by the plaintiffs, the account settled under the decree of the Richmond Chancery court, and relied on in the answer of the defendant Bassett; and in taking this account the commissioner was directed “to separate the payments made to the heirs and legatees of William Dandridge deceased, and the credits arising from rents.” 4th. An account of Burwell Bassett’s administration of Bangborne’s estate, unless he shall admit assets, &c. 5th. An account of all the real estate in the possession of the heirs or devisees of William Dandridge, derived by devise or descent from him, and if aliened, to whom, at what time, and for what price. 6th. An account of all the specialty debts, if any, of William Dandridge, paid out of his personal estate.

In January 1829, the commissioner, Anderson, returned his report under the said decree:

Hirst. An account of Bartholomew Dandridge’s administration of William Dandridge’s estate, shewing due to the estate of William Dandridge the sum of 2095 dollars 12 cents, on 14th February 1821, interest added to the 31st December 1828, 989 dollars 93 cents, total 31st December 1828, 3085 dollars 5 cents. This account is settled from an audit of Henrico County court, returned in the lifetime of Bartholomew Dandridge.

Secondly. An account of Catharine Dandridge’s administration of Bartholomew Dandridge’s estate, shewing due to the estate of Bartholomew Dandridge, on 31st December 1828, the sum of 1244 dollars 84 cents.

Thirdly. An account of payments by Bangborne to William Dandridge’s devisees and legatees, and rents received, shewing principal paid over to William Dandridge’s ^children and widow, 23,249 dollars 57 cents, over and above the rents credited in said account. This account is taken from the account rendered under the order of the Richmond Chancery court before referred to, of Bangborne’s administration of W’illiam Dandridge’s estate, by separating the items of payment to the legatees, and rents of real estate therein contained.

The commissioner reports, that Bassett had settled no account of his administration of Bangborne’s estate, nor had he admitted assets, and that none of the defendants, heirs and devisees of William Dandridge, had rendered the accounts required of them as to the real estate devised or descended.

Various exceptions are filed to the said *108report by the plaintiffs and the defendant Bassett, administrator of Bangborne.

These exceptions of Bassett were for failing to credit the estate of William Dandridge and to charge Bartholomew Dandridge’s estate with various sums of money which it was alleged Bassett, as administrator of Bangborne, had paid over to Bartholomew Dandridge, as administrator de bonis non of William Dandridge, under a decree of the Chancery court. After the death of Bangborne and qualification of Bartholomew Dandridge, the latter filed a bill in the Chancery court at Richmond against Burwell Bassett, as the administrator of William Bangborne, to compel Bassett to pay over to him the assets of William Dandridge’s estate which were in the hands of Bangborne at the time of his death. The commissioner to whom the accounts were referred reported the sum of 2872 dollars 66 cents as in the hands of Bangborne, as executor of William Dandridge ; and this sum was paid over to Bartholomew Dandridge under the decree of the Court. Of this sum 777 dollars 54 cents was expended in a due course of administration, leaving a balance in the hands of Bartholomew *Dandridge of 2095 dollars 12 cents, as due the 14th of February 1821. The commissioner also reported two bonds given by Bartholomew Dandridge to Bangborne, one for purchases at a sale of the personal estate of William Dandridge made by Bangborne, for 2087 dollars 50 cents, due 15th January 1807, and the other for 2000 dollars, for money of William Dandridge’s estate loaned by Bang-borne to Bartholomew Dandridge the 15th of July 1814. There was also 2228 dollars due from Dorrington for purchases at the sale, with interest, also 600 dollars for rent of real estate, and some other bonds of third persons due to William Dandridge’s estate and held by Bangborne, the obligors in which the commissioner reported to be insolvent. These debts were charged to Bartholomew Dandridge, administrator of William Dandridge, in the commissioner’s report; and the Court, approving the report, decreed in his favour against Bassett, as administrator of Bangborne, for the balance so ascertained to be due, and he paid over the amount and transferred the bonds to Bartholomew Dandridge.

At the July term, 1829, the cause, which was then dismissed as to Betty and William Selden, came on to be heard on the said report, &c., when the Court of chancery, being of opinion that the powers of Susanna Dorrington, as executrix of William Dandridge, never were revoked or annulled in her lifetime, and that the grant of administration de bonis non to Bartholomew Dandridge was a nullity, and that the estate of William Bangborne was not bound by the decree against Bartholomew Dandridge, the administrator de bonis non, being no party or privy thereto, adjudged and decreed, that the plaintiffs’ bill be dismissed as to the defendants Catharine Dandridge, administratrix of Bartholomew Dandridge, and Burwell Bassett, administrator of William Bangborne, without prejudice to any other or further claim which the plaintiffs in any other suit may *properly assert against said estates. And it was then further ordered and decreed, that the defendant Mosby Sheppard render before one of the commissioners of the Court an account of Susanna Dorrington’s administration of William Dandridge’s estate, and an account of his own transactions as committee of said Susanna Dorrington; and that the defendant David Dorrington render an account of his actings as husband of said Susanna Dorrington, and thereby executor of said William Dandridge.

From so much of this decree as dismissed the bill as to the defendants Dandridge and Bassett, the plaintiffs obtained an appeal; and on the 16th February 1836, the decree was reversed and annulled, and the cause remanded to the Court of chancery for further proceedings to be had. The opinions delivered by the Judges, copies of which are in the record, shew the grounds of reversal. As to Bartholomew Dandridge they say, that whether liis appointment as administrator de bonis non of William Dandridge was legal or illegal, neither he nor those representing him could be received to deny that he was such administrator; that as such he had instituted a suit against the administrator of Bangborne, the former executor, and had received a large amount of assets which he should be held liable for; he and his sureties being alone ■ responsible therefor. As to Bangborne’s estate, they1 say it was error to dismiss the bill as to him, merely because he was no party to the decree.

The cause came back from the Court of appeals in 1836, when the plaintiffs, Gill Armstead and Thomas B. Allen, administrators of William Armstead, being dead, it was revived in the name of John Tabb, sheriff, and committee of William Arm-stead’s estate, and in the name of Gill A. Cary, administrator of Susanna Cary, who ■ had also died.

*On the 3d July 1837, and the 24th November 1837, the complainants, together with Elizabeth A. A. Booth, (who had obtained no decree,) filed two amended bills, without having obtained the leave of the Court to do so; and on the 14th May 1838, the said amended bills, and all the proceedings thereon were ordered to be set aside. And thereupon leave was granted the plaintiffs to file a supplemental and amended bill, and to make new parties defendants.

In pursuance of the leave thus given, the plaintiffs in the bill of 1826, (except Betty Selden and William Selden, as to whom the suit was dismissed in 1829,) together with Elizabeth A. A. Booth, exhibited their supplemental and amended bill, on the 14th of May 1838, reciting the decree of the 1st June 1816, (as a decree rendered against Bartholomew Dandridge, as administrator de' bonis non of William Dandridge,) the decree of the Court of appeals of the 11th *109December 1821, and the decree of the Chancery court of the 18th July 1822, and charges that the same has been unavailing; that the complainant Elizabeth A. A. Booth, when under age, intermarried in 1813, with Josiah H. Cocke, who soon thereafter died, she surviving, and in 1817 she intermarried with William Booth, and soon after removed to the state of Tennessee, where she has remained ever since under coverture, until the 23d October 1833, having no knowledge of said decree and the pendency of this suit, until very recently, &c. This bill charges that Bartholomew Dandridge received a very large amount of assets, and -wasted and converted the same to his own use, having given bond in the penalty of *£*20,000 with security; that Burwell Bassett received a large estate of William Eangborne, which he delivered over to his only son and distributee, William Eangborne, junior, who soon died, leaving a will, by which he gave his whole estate to certain persons named in the bill, and made Burwell Bassett his ^executor, who distributed the estate amongst the legatees; that these assets of William Eangborne, the elder, thus distributed to the legatees of the younger Eangborne, are liable to the payment of the plaintiffs’ demands. To this bill are made defendants Burwell Bassett, executor of William Eangborne, the younger, Robert M’Candlish, administrator de bonis non of William Eangborne, the elder, Catharine Dandridge, administratrix of Bartholomew Dandridge, the representatives of the deceased sureties of Bartholomew Dandridge, as administrator de bonis non of William Dandridge, Thomas H. Terrell, the surviving security of said Bartholomew Dandridge, and all the legatees of William Eangborne, the younger, deceased.

To this supplemental and amended bill Burwell Bassett, in his lifetime, filed his answer, setting up the following grounds of defence, viz:—1st. He calls for proof of the decrees referred to in the bill, especially the decree which the bill seeks to enforce. 2dly. He calls for proof of the execution of the bonds required by the decree of 1822. 3dly. He insists that the said decrees and proceedings are not binding on him, or the estate of his intestate William Eangborne, they being neither parties nor privies thereto, and cannot be used even as evidence against them. 4thly. If the suit shall be entertained, he denies that the plaintiffs have any just claim or right to recover against the estate of William Armstead, or William Dandridge, and insists that they be held to proof of such claim, and that the accounts be referred anew to be re-taken upon legal evidence. 5thly. That he is advised there is great doubt whether William Eangborne was ever the true legal executor of William Dandridge, and calls for the proof. 6thly. He denies the right of John Ambler to recover choses in action due to the wife, not being the personal representative of the wife. 7thly. Denies that William Eangborne wasted or misapplied the assets *of William Dandridge, and avers that he retained in his hands assets sufficient to satisfy the plaintiffs’ demands, if established, which assets, being in Eangborne’s hands at his death, came to the hands of said Bassett, as his administrator, and were subsequently delivered and paid over to Bartholomew Dandridge, as administrator de bonis non of William Dandridge, under a decree pronounced by the Chancery court of Richmond, in a suit brought against him by the said Bartholomew Dandridge, as administrator de bonis non aforesaid ; that to the extent of the assets thus paid over the complainants can never look to the estate of Eangborne, or to the defendant Bassett, but must resort to Bartholomew Dandridge and his sureties. 8thly. That he has been informed refunding bonds were required by Eangborne, and given when he made payments to the legatees of Dandridge and wife. He insists that the plaintiffs be compelled to resort to them. 9thly. That William Dandridge left a large real estate, and as his heirs and devisees are before the Court on the bill of 1826, he insists that resort should be compelled to them. lOthly. That he, the said Bassett, has no assets of William Eangborne in his hands, having legally and fully administered all that ever came to his hands as administrator of said Eangborne, and paid over the balance to William Eangborne, junior, the sole distributee, before he had notice of this suit, or the claims of the plaintiffs; that the same estate subsequently came to his hands as executor of the younger Eangborne, and was distributed according to his will, by decree rendered in the suits of “Taliaferro v. Bassett,” depending in this Court, which are referred to as part of the answer, together with the refunding bonds executed on such distribution; that if the plaintiffs have any claim against him as representative of Eangborne, they should be compelled to resort to the legatees of the younger Eangborne. llthly. He denies *the right of Elizabeth A.

A. Booth, to unite with the plaintiffs in this cause in filing the supplemental bill referred to, and insists that the bill be dismissed as to her; but if the bill should be entertained as to her, he requires proof of the allegations touching her infancy, coverture, non-residence, and ignorance of her rights and the decree in her favour. 12thly. Pleads the act of limitations against the claim of Elizabeth A. A. Booth. 13thly. Insists that the said claim of Elizabeth A. A. Booth should be presumed to be settled, and regarded as a stale demand. 14thly. That all the claims of the plaintiffs should be regarded as stale demands. lSthly. That the complainants, if entitled to recover, should first resort to the assets in the hands of Bartholomew Dandridge, and pursue him and his sureties therefor; and if their claims exceed the assets paid over to him, for the excess they should resort to the legatees and devisees of William Dandridge ; and if they prove insufficient, then to the legatees of Eangborne, unless the Court shall be of opinion that Eangborne is not *110responsible at all for the payment over of the assets of Dandridge. And lastly. Bassett claims the benefit of any and every act of limitations applicable to the circumstances of the case.

The legatees of William Langborne, the younger, all answered the bill, relying upon the same matters set forth in the answer of the defendant Burwell Bassett, except that they were not, under any circumstances, to be made liable for any part of the plaintiffs’ demands. And especially they insist, that if any question shall arise involving liability for the assets paid over by Burwell Bassett under the decree of the Richmond Chancery court to Bartholomew Dandridge, they are not to be held responsible therefor, but the said Bassett personally should be held liable, if that payment shall not be held good.

*The defendant Thomas H. Terrill demurred and answered. The demurrer was overruled. His answer denies the justice of the plaintiffs’ demands, and calls for proof of them. He pleads the act of limitations of 1826, in his defence; also avers that the powers of Bartholomew Dandridge were revoked in September 1821, before the rendition of the decree of the Court of appeals; denies that Bartholomew Dandridge ever was legally the administrator of William Dandridge, or that he ever received any assets as such; says that the receipt filed with the answer of Bassett was executed after his powers as administrator were revoked, and that the bonds, &c., received were worthless.

On the 10th day of November 1843, several of the parties having died, there were revivals entered against certain of their-representatives, and the case was argued and time taken for consideration.

Afterwards, on the 17th of November 1845, a decree was pronounced, ordering these, among other enquiries, before a commissioner, to wit:—1st. As to the value of the property, real and personal, of William Langborne, deceased, received by his devisees and legatees, and whether it was sufficient to pay the demands of the plaintiffs. 2d. As to the proportions in which such devisees and legatees should make payment to the plaintiffs; ascertaining also the contribution from Burwell Bassett’s estate, on account of the life estate of his wife in one fourth of the property of William Langborne, junior. 3d. As to the amount of the demands of the plaintiffs; aking the decree of 1822 as a guide—but deducting, as of the 14th of February 1821, 2095 dollars 12 cents, as the sum. for which Bartholomew Dandridge’s estate would be responsible, in case Burwell Bassett’s exceptions (which were left undecided) should be overruled. The same decree dismissed the bill as to the defendant Terrill, but without costs; but did not pass upon the claim of *the plaintiff Elizabeth A. A. Booth. Under this decree, the commissioner returned a report, to which exceptions were taken by Bassett and by Langborne’s devisees and legatees. After-wards the devisees and legatees of Lang-borne filed exceptions to the report of commissioner *A*nderson, filed in 1828, similar to the above mentioned exceptions of Burwell Bassett, as to which the above mentioned decree gave no decision.

The exceptions to the report of 1828 have been already stated. The exceptions to the last report, which it is material to notice, are 1st. For applying the amount due from the estate of Bartholomew Dandridge to the interest of the debt due from the estate of William Dandridge, instead of applj-ing it *to*the principal. 2d. For diminishing the portion of that sum applicable as a credit upon the amounts due to the respective plaintiffs, by dividing it among not only the plaintiffs, but Betty Selden and Joseph Selden, as to whose claims the bill had been -dismissed. 3d. For charging the defendants with the sum of 2762 dollars 60 cents as due Elizabeth A. A. Booth; she not having obtained a decree for any amount in the decree of the 18th of July 1822. 4th. For charging the defendants, the legatees of William Langborne, jr., with interest upon the appraised value of the slaves received by them from the time they were received. 5th. For charging them with in-: terest upon the value of land received by them from the time received.

When the cause came on to be finally heard in May 1847, the Court directed a special statement to be made, which was adopted as the basis df the decree, and is referred to in the decree of this Court as marked XX. This statement disregards the exceptions of the defendants to the report of 1828; but is conformed to the first and second exceptions above mentioned. It-retains the charge in favour of Mrs. Booth; and the fourth and fifth exceptions are not passed upon, as the *p]ti:acipal of the estate of William Langborne, jr., received by the defendants, his lega-, tees and distributees, was more than the amount of the decrees against them respectively, except Mrs. Burwell Bassett, to whom he gave the one fourth of his estate for her life. The commissioner in his re-' port charged her with interest on the personal estate received by her, 2922 dollars 70 cents, and on real estate, 1173 dollars 15 cents, = 4095 dollars 85 cents, and charged her with a proportionate share of the debt imposed upon the legatees and devisees of William Langborne, jr. In the statement “XX” she is charged with one fourth of the debt. Mrs. Bassett died in the year 1834; and in the same year the legatees and devisees in remainder of William Lang-borne, jr., filed their bill against Burwell Bassett for a division and distribution of the estate of their testator which had been allotted to her -for life; and in that suit the property was sold, and the proceeds were divided among the complainants in 1835 and 1836.

Statement XX ascertained the a *mount-due*from the estate of Bartholomew Dandridge on the 1st day of June 1846, to be 5400 dollars 50 cents, of which 2095 dollars 12. *111cents was principal. It ascertained that there was due to the plaintiff, William Armstead’s representative, 5795 dollars 39 cents, of which Bartholomew Dandridge’s estate was charged with 1348 dollars 69 cents, leaving 4446 dollars 70 cents to be paid by the legatees of Bangborne; and it was apportioned among them. The statement ascertained the debt due to Susanna Cary’s estate to be 5395 dollars 21 cents, of which Bartholomew Dandridge’s estate was charged with' 1255 dollars 56 cents, leaving 4139 dollars 65 cents to be paid by Bang-borne’ s legatees; and which was apportioned among them. The debt due John Ambler’s estate was 6007 dollars 78 cents, of which Bartholomew Dandridge’s estate was charged with 1398 dollars 12 cents, leaving 4609 dollars 66 cents to be paid by *Bangborne’s legatees; which was also apportioned among them. The debt due Abraham A. Green was 3003 dollars 89 cents, of which Bartholomew Dandridge’s estate was charged with 699 dollars 6 cents, leaving 2304 dollars 83 cents to be paid by the legatees of Bangborne. And the debt due Elizabeth A. A. Booth was the same in all respects with that of Abraham A. Green.

The decree of the Court overruled in terms the exceptions filed by the defendants to the report of 1828, and adopting the statement XX, decreed in favour of the respective plaintiffs against Bartholomew Dandridge’s administrator, for the sums above mentioned, as applied to their respective debts in statement XX. The Court also decreed in favour of the respective plaintiffs, against each of the legatees of Bangborne, jr., separately for his proportion of the debt due to each plaintiff according to said statement, holding Burwell Bassett as the husband of Mrs. Bassett, liable for one fourth of the amount for which the estate of William Bangborne was subjected. And the decree required Ambler’s administrator, Abraham A. Green and E. A. A. Booth to execute bonds to indemnify the defendants against the claim of the personal representative of the party under whom they claimed. From this decree the legatees and devisees of William Bangborne applied to this Court for an appeal, which was allowed.

The case was elaborately argued by Morson and Southall for the appellants, by Griswold and E. T. Daniel for Bassett, and by Harrison and Eobinson for the other appellees, but the reporter was absent during a part of the argument, and therefore cannot give it.

*

For monographic note on Multifariousness (in Equity), see end of case.

†

See monographic *note*on “Executors and Administrators.”

‡

Death of Executor—Administrator d. b. n.—Revival of Suit.—See principal case cited *in foot-note*to Braxton v. Harrison, 11 Gratt. 30.

ABBEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the amount and validity of the claim of Gill Arm-stead’s legatees against *the estate of William Armstead deceased, were ascertained and adjudged by the decree of the Chancery court of the 1st of June 1816. That although the said decree was reversed by the decree of this Court, pronounced on the 11th of December 1821, for formal errors, yet the mode of settling the accounts between said William Armstead and the estate of Gill Armstead was directly passed upon by the Court of appeals, and so much of the decree of the 1st June 1816, as ascertained the amount of the debt and adjudged it to be due by William Armstead’s estate, was substantially afíirmed, and the Court of chancery was instructed to enter a decree according to the principles so settled by the decree of the Court of appeals; in pursuance whereof the said Chancery court did, on the 18th July 1822, enter up a decree for the amount of the debt so ascertained to be due from William Armstead’s estate to the legatees of Gill Armstead.

The Court is further of opinion, that said decrees did in effect adjudge and establish that as William Dandridge, who intermarried with the only daughter of William Armstead, being best acquainted with, and having laboriously attended to the taking of the accounts, being de facto administrator of William Armstead, had possessed himself of the assets and credits of the estate, the payment of the debt so ascertained and established against William Armstead’s estate must ultimately fall on said Dandridge. The Court is therefore of opinion, that said decrees taken in connection with the decree of the Court of appeals of the 16th February 1836, reversing a decree of the Chancery court pronounced on the 3d of August 1829, dismissing the bill as to the representatives of Bartholomew Dandridge and William Bangborne, conclusively establish against said William Dandridge and all his representatives the indebtedness of William Armstead’s estate to the legatees of Gill Armstead; that they had a right to follow *the assets in William Dandridge’s hands; that a sufficiency of such assets had come to his hands, and that his representatives, who have received his assets, are accountable to said legatees for the assets so received.

And the Court, without deciding what would be the effect in all cases of a judgment against an administrator de bonis non in establishing a debt against the estate so as to conclude a former executor or administrator, and thereby subject him to a devastavit, is of opinion, that under the circumstances disclosed in this case, the decree pronounced against Bartholomew Dandridge, administrator de bonis non of William Dandridge deceased, on the 18th of July 1822, in pursuance of the decree of the Court of appeals of the 11th December 1821, substantially affirming the decree of the 1st June 1816, should be treated and held as conclusive upon the said William Bang-borne, the prior executor of said Wrilliam Dandridge deceased, upon the question of the indebtedness of William Armstead’s estate, the right to follow his assets in the hands of William Dandridge, the receipt of sufficient assets by William Dandridge for the payment thereof, and the liability of *112his estate for the amount: It sufficiently appearing that said claim was controverted by said William Dandridge in his lifetime, who, according to the decree of the Court of appeals, was best acquainted with and laboriously attended to the taking of the accounts; and it furthermore appearing that after the death of said William Dandridge, the suit was regularly revived against Susanna Dorrington and David Dorrington her husband, the said Susanna having qualified as executrix of William Dandridge, and against John Bassett and William Bangborne who were named as executors; that the said Dorrington and wife filed their answer making full defence, and that after the order of the County court of June 3d, 1805, treated by the Court of appeals by the decree of the 16th February 1836, as a revocation of her authority *as executrix, the said William Bangborne qualified as executor, and thereafter filed his answer controverting the "justness of the claim; that exceptions were taken to the report of the commissioners, and the case matured for a decision on the merits during his lifetime. Under such a state of facts where the claim was controverted by the party sought to be charged in his lifetime, the suit revived against his executor who made a vigorous and full defence, and the case was ready for a decision on the merits when he died, and the cause was revived against the administrator de bonis non, against whom the decree was pronounced, there can be no hazard of injustice to the executor in treating the decree against the administrator de bonis non, as conclusively establishing the debt against the estate, botja as regards the administrator de bonis non and the previous executor; and Bangborne is properly responsible for the assets he paid over to the legatees of William Dandridge to the prejudice of Gill Armstead’s legatees who were creditors of the estate as ascertained and adjudged by the decrees hereinbefore referred to.

The Court is further of opinion, that as it appears said William Bangborne, executor of William Dandridge, paid over to his legatees the assets, with full notice of said claim, and after the suit to assert and establish the same against the estate of his testator, had been duly revived against him; and as the decree establishing said claim is, under the circumstances aforesaid, conclusive as it respects him, in establishing the validity of the debt against his testator’s estate, such payment constituted a devastavit, and the liability arising from such devastavit resting on him at his death, in equity and by virtue of the official bond, created a debt which his representative was bound to discharge before making distribution of his estate; to be credited, however, by the amount of assets he retained in his hands, and which were afterwards paid over in invitum, by the *decree of the Chancery court to Bartholomew Dandridge, the administrator de bonis non.

The Court is further of opinion, that as the legatees of said Gill Armstead claimed by force of the same decrees ascertaining the rights of all, and having a common interest, are seeking satisfaction out of a common fund, it was proper to unite in one suit to get the benefit of the former decrees in their favour; and the bill filed is not liable to the objection of being multifarious.

The Court is further of opinion, that there is nothing to distinguish the case of E. A. A. Booth from that of the other claimants. She was a party in whose favour the decree of 1st of June 1816, was pronounced, which as to her right to recover, was substantially affirmed by the decree of the Court of appeals of the 11th of December 1821. And though by the decree of the 18th of July 1822, there was an omission to enter a decree in her favour in consequence of the suggestion of her intermarriage with-Booth, yet, by the principles of that decree, purporting to be entered in conformity with the decree of the Court of appeals, her right to recover, which was a joint and common one with the other legatees, was in effect established; and the decree for her proportion was merely suspended to bring in a formal party in whose name the same could be entered; and the suit never having abated as to her, and she having survived her husband, she stands in the same position with the other claimants, with a decree establishing their rights jointly, and entitled equally with them to carry it into effect.

And the Court is further of opinion, that as the decree of the 1st June 1816, was suspended by the appeal, and no definitive decree establishing the debt was rendered until the decree of the Chancery court of the 18th July 1822, was entered in conformity with the instructions contained in the decree of the Court of appeals of the 11th December 1821; and as the claimants *had no right to proceed against the representatives of William Bangborne for his devastavit until their debt was established against the estate of said William Dandridge, their bill filed in February 1826, against the representative of said Bang-borne and the representatives and legatees of said William Dandridge, to get the benefit of said decrees, and charge the estate of said Bangborne for his devastavit, was not barred by any statute limiting actions against fiduciaries; nor was there any such delay as to require a Court of equity to refuse relief upon the ground of laches.

The Court is further of opinion, that as it appears that Burwell Bassett, the representative of William Bangborne the elder and of William Bangborne, jr., had passed over the assets of said estates before he had notice of the claim now in controversy, as he alleges in his answer, to the proper distributees and legatees of said Bangbornes, it was proper to throw the burthen on the distributees and legatees instead of the per*113sonal representative; they having the fund out of which the claim should he satisfied, and which in any event, must be held as being ultimately subject to the claim sought to be enforced, unless the same can be otherwise satisfied.

The Court is further of opinion, that as it respects the security of Bartholomew Dandridge, administrator de bonis non, the cause of action arose against him from the rendition of the decree of the 18th July 1822; as it would have been competent for the claimants, upon the return of nulla bona on said decree, to have proceeded against said administrator de bonis non and his securities in his official bond for his devastavit; and no proceeding having been commenced against such securities until they were made defendants by the amended bill filed on the 14th May 1838, the act of March 8th, 1826, relied on by the security Thomas H. *Terrill in his answer, barred a recovery against the securities.

The Court is further of opinion, that the statement XX referred to in the decree now appealed from, correctly ascertained the sums for which the representatives of B. Dandridge’s estate, and the representatives of Bangborne’s estate were respectively responsible; that all exceptions inconsistent with said special' statement XX were properly overruled, and all exceptions consistent therewith properly sustained; and said statement so confirmed and constituting a part of said decree, definitively ascertains the amount for which Bartholomew Dandridge’s estate is liable, and for which a decree was properly rendered in favour of the claimants respectively, against Philemon Jones, committee and administrator of his estate; and the same also definitively ascertains the amount for which the estate of William Bangborne is ultimately responsible and may be compelled to pay eventually unless otherwise discharged.

The Court is further of opinion, that as Mrs. B. Bassett was, under the will of William Bangborne, jr., a legatee for life, and it appears that before any recovery she had departed this life, and the part held by her for life was passed over to those entitled in remainder, the surviving husband having no assets of his wife, could not be held responsible on account of such life estate which had previously terminated; and the assets of William Bangborne which the claimants were entitled to follow had passed into the hands of those entitled thereto in remainder; and the decree subjecting said B. Bassett, on account of said life estate, to a portion of the amount for which the estate of Bangborne was responsible was erroneous.

And the Court is further of opinion, that although as a general rule a creditor of an estate is not bound to look beyond the personal representative, who is immediately '^responsible to him, yet under peculiar circumstances it is proper that a Court of equity should throw the burthen upon those ultimately liable, and that more especially when by the acts and conduct of the creditor the party who might in strictness have been primarily liable, may have been misled and induced to believe he was not looked to as responsible. In this case it is manifest that the representatives of Bangborne have received no part of William Dandridge’s estate, the assets of which should properly have been applied to the payment of this claim. The same have all been duly accounted for and passed over by Bangborne and his representative to the legatees and administrator de bonis non of William Dandridge. On the death of Bangborne the claimants revived their suit against the administrator de bonis non of William Dandridge, and dropped the representatives of Bangborne from the cause; thus indicating an intention to look to and pursue the estate of William Dandridge. In the meantime the representative of Bangborne turned over to the administrator de bonis non of William Dandridge, in obedience to a decree of Court, the assets of William Dandridge remaining in the hands of Bangborne at his death; and thereafter without any notice, as he alleges in his answer, of the claim now sought to be enforced, he proceeded to distribute the estate of Bangborne in the mode disclosed by the record. The claimants, by their bill of 1826, still looking to the estate of Dandridg'e for satisfaction, made the legatees and representative of that estate parties; and the Court having them before it, was bound in the exercise of a sound discretion under the circumstances aforesaid, to have required the claimants to proceed in the first place against the legatees of William Dandridge, holding Bangborne’s estate ultimately responsible for the sum so as aforesaid ascertained to be a proper charge against it, or for so much thereof *as could not be made by proceeding against the legatees of William Dandridge; and it was error to dismiss the bill as against the representatives and legatees of William Dandridge, or any of them, and to decree against the representatives of Bangborne until such effort had been made to procure satisfaction out of the assets of William Dandridge’s estate in the hands of his representatives.

It is therefore ordered and decreed, that said decree in the particulars in which it is herein declared to be erroneous, be reversed with costs; and that the same, so far as it conforms to the principles above declared, and is not herein declared to be erroneous, be and the same is hereby affirmed. And the cause is remanded with instructions to require the plaintiffs in the Court below to revive, if necessary, against the legatees, and also the devisees, if so advised, of William Dandridge, and for all proper accounts, in order to a final decree according to the principles above declared, which is ordered to be certified.

*114MULTIFARIOUSNESS (IN EQUITY).

I. Nature.

1. Difficult to Define.

2. What Constitutes.

3. Tests.

a. In General.

b. Oases Illustrating the Application of the Car-

dinal Rules or Tests.

(1) Bills Objected to, but Held Not to Be Multifarious.

(2) Bills Held to Be Multifarious.

II. Forms of Multifariousness.

1. In General.

2. As to Matter.

3. As to Parties.'

III. Terminology.

IV. Reason for Rule.

V. Applies to Wbat Pleadings.

VI. Multifariousness as Determined by Prayer for Relief.

1. In General.

2. Alternative Prayer.

3. Impossible or Improper Relief Asked.

VII. At What Stage Objection Raised. vttt. Method of Raising Objection.

IX. By Whom Raised.

X. Waiver.

XI. Effect and Remedy.

1. In General.

2. Amendment.

3. Dismissal.

^ Cross References to Monographic Notes.

Amended Bills, appended to Belton v. Apperson, 26 Gratt. 207.

Answers in Equity Pleading, appended to Tate v. Vance, 27 Gratt. 571.

Creditors’ Bills, appended to Suckley v. Rotchford, 12 Gratt. 60.

Indictments, Informations and Presentments, appended to Boyle v. Com., 14 Gratt. 674.

I. NATURE.

1. DIFFICULT TO DEFINE.—Some difficulty is experienced in accurately defining the term “multifariousness.” As used in chancery pleadings, it more properly consists of a demand in one bill of several matters of a distinct and independent nature against several defendants; or the uniting in one bill against a single defendant several matters perfectly distinct and unconnected. See Dan. Ch. Pr., 2093.

But it is impossible to lay down any fixed and invariable rule applicable to all cases as to what constitutes multifariousness. As said by Staples,

J. , in Segar v. Parrish, 20 Gratt. 679, “The courts have found it impracticable to lay down any fixed rule in regard to the incorporation of separate and distinct matters in the same bill. They seek rather to ascertain what is just and convenient in the particular case, than to declare any general rule, applicable to all cases.” Almond v. Wilson, 75 Va. 613; Dillard v. Dillard, 97 Va. 434, 34 S. E. Rep. 60.

2. WHAT CONSTITUTES.—In general, it is either a misjoinder in a bill of claims of such different characters that the court will not permit them to be litigated in one record; or it is where a party is brought as a defendant upon a record, with a large portion of which and .of the case made by which he has no connection whatever. Or as stated

in Sadler v. Whitehurst, 83 Va. 46,1 S. E. Rep. 410, where a bill joins distinct and independent matters, thereby confounding them, as, for example, the uniting in one bill of several matters perfectly distinct and unconnected against one defendant, or the demand of several matters of a distinct and independent nature against several defendants in the same bill. Dunn v. Dunn, 26 Gratt. 291.

But where there is a common liability in the defendants and a common interest in the plaintiffs, different claims may be united in one and the same suit, although the interest be not a coextensive interest. Brown v. Buckner, 86 Va. 612,10 S. E. Rep. 882. See, in this connection, Buffalo v. Town of Pocahontas, 85 Va. 225, 7S. E. Rep. 238; Batchelder v. White, 80 Va. 103; Stuartv. Coalter, 4 Rand. 74; Spooner v. Hilbish, 92 Va. 333, 23 S. E. Rep. 751; Triplett v. Woodward, 98 Va. 187, 35 S. E. Rep. 455; Snyder v. Grandstaff, 96 Va. 473, 31 S. E. Rep. 647.

However, a bill presenting different views of the same collection of facts, stated in the alternative, is not multifarious because thereof. Snyder v. Grand-staff, 96 Va. 473, 31 S. E. Rep. 647.

3. TESTS.

a. In General.

In Alexander v. Alexander, 85 Va. 353, 7 S. E. Rep. 335, the court says: “It will seldom, if ever, be found difficult to determine whether multifariousness exists in the particular case, if we will only bear in mind these cardinal rules upon the subj ect, namely, that a bill will always be deemed multifarious, where several matters joined in the bill against one defendant are so entirely distinct and independent of each other that the defendant will be compelled to unite, in his answer and defence, different matters wholly unconnected with each other, and as a consequence the proofs applicable to each would be apt to be confounded with each other, and great delays might be occasioned respecting matters ripe for hearing by waiting for proofs as to some other matter not ready for hearing; or again, where there is a demand of several matters of a distinct and independent nature, iu the same bill, rendering the proceeding oppressive because it would tend to load each defendant with an unnecessary burden of costs by swelling the pleadings with the statement of the several claims of the other defendants, with which he has no connection. Story’s Eq. PI. sec. 271; Segar v. Parrish, 20 Gratt. 679. And that a bill will not usually be regarded as multifarious, where the matters joined'in the bill, though distinct, are not absolutely independent of each other, and it will be inore convenient to dispose of them in one suit (see Nulton v. Isaacs, 30 Gratt. 738; Hill v. Hill, 79 Va. 592), or where the several defendants have one common interest centering in the point in issue.”

In Crickard v. Crouch, 41 W. Va. 503, 23 S. E. Rep. 727, it is held that a bill in equity which includes many defendants who have distinct interests is multifarious, and therefore erroneous. Stuart v. Coalter, 4 Rand. 74.

So two distinct grounds of equitable relief, even between the same parties, are not to be joined in one bill. Zell Guano Co. v. Heatherly, 38 *W.*Va. 409,18 S. E. Rep. 611.

And it is well settled, that a bill is demurrable in which are united several distinct rights, each sufficient, as stated, to sustain a bill against one defendant, or in which there is a demand of several matters, distinct in their nature, against several defendants, who are unconnected in interest and *115liability. Washington, City Say. Bank v. Thornton, 83 Va. 157, 2 S. E. Rep. 193; Oney v. Ferguson, 41 W. Va. 568, 23 S. E. Rep. 710. See also, in this connection, Almond v. Wilson, 75 Va. 613; Petty v. Fogle, 16 W. Va. 497; Coleman v. Claytor, 93 Va. 20, 24 S. E. Rep. 463; Baskin Wood, etc., Co. v. Cleveland, etc., Co., 94 Va. 439, 26 S. E. Rep. 878; Huff v. Thrash, 75 Va. 546; Buffalo v. Town of Pocahontas, 85 Va. 222, 7 S. E. Rep. 238. See Moore v. McNutt, 41 W. Va. 695,24 S. E. Rep. 682; Jordan v. Liggan. 95 Va. 616, 29 S. E. Rep. 330; Nunnally v. Strauss. 94Va. 255, 26S. E. Rep. 580; Shen. Val. Bk. v. Bates, 20 W. Va. 210; Crumlish v. Ry. Co., 28 W. Va. 623; Bosher v. R. & H. Land Co., 89 Va. 455, 16 S. E. Rep. 360; Jones v. Clark, 25 Gratt. 642; Miller v. Miller, 92 Va. 196, 23 S. E. Rep. 232.

However, a bill will not be held multifarions by reason oí an improper charge, which charge itself does not set up an Independent cause of action. Pyles v. Riverside Furn. Co., 30 W. Va. 123, 2 S. E. Rep. 909.

b. Cases Illustrating tub Application of the Cardinal Rules or Tests.

*(1) IHUs Objected*to, *but Held Not to Be Multifarious.*

Amended Bills.

*Wien Sustained—*Where it is apparent from the whole scope of an amended bill that It was intended to accomplish the same object for which the original bill was filed, the bill, as amended, will not be deemed multifarious although there may be particular charges in the amended bill apparently intended to base relief on a different ground from that stated in the original bill. Hutchinson v. Maxwell, 7 Va. Law Reg. 786.

But where a bill has been filed to foreclose a mortgage executed by husband and wife, but which only conveyed personal property of the husband and his interest in a certain tract of land, the court ought not to permit an amendment of the bill seeking to charge the debts secured by such mortgage, on certain other real estate belonging to the wife as her sole and separate property, as such amendment would make the bill multifarious. Linn v. Patton, 10 W. Va. 187.

General Creditors’ Bill.

*Relief in Several Ways*Sought.—A bill in a general creditors’ suit is not multifarious where it seeks to enforce a mechanics’ lien in favor of complainant, to set aside a deed of trust executed by defendant, to have another deed of trust declared to inure to the benefit of all creditors, and to convene defendant’s creditors and wind up its affairs. Haskin Wood, etc., Co. v. Cleveland, etc., Co., 94 Va. 439, 26 S. E. Rep. 878. See Hutchison v. Mershon, 89 Va. 624, 16 S. E. Rep. 874.

Bill by Single Creditor.

*Settlement of Decedent's lístate and Accounts of Administrator—A*bill by a creditor of a decedent to settle the estate and accounts of the administrator is not multifarious. Turk v. Hevener (W. Va. 1901), 38 S. E. Rep. 476.

Dower.

*Recovery of—Several Purchasers from Husband— Dower Not Relinguished.—A*bill against several purchasers of separate and distinct tracts of land aliened by a husband during coverture, without the relinquishment of the wife, to recover dower in each tract, is not multifarions. The plaintiff may elect to proceed against each separately, or all together. Boyden y. Lancaster, 2 P. & H. 198.

Subjection or Partition of Land.

*Ashing Property to Be Subjected to*Lien, *Also That a Confessed Judgment Be Declared*Void.—A bill in a suit

in equity brought for the purpose of subjecting property to the lien of an attachment and also to have a confessed judgment lien on the attached property declared fraudulent as to the plaintiff’s lien, is not multifarious. Stewart v. Stewart, 27 W. Va. 167.

*Praying for a Decree to Enforce, a Vendor's Lien and Settle Transactions cmd Accounts.—A*bill by a vendor to enforce his vendor’s lien sets out an agreement between the plaintiff and the purchasers, by which it was agreed the land should be the joint property of the plaintiff and the purchasers, that it should be laid off into town lots, the lots sold, and the net proceeds applied to the payment of the plaintiff's lien, and the residue if any. of the lien paid by the purchasers ; that lots had been sold by the parties as a company or partnership partly for cash and partly on credit ; that all the purchase money had become due and a large portion of it remained unpaid, and prayed that the transactions of the company and the accounts of the sales of lots might be settled, and for a decree against the purchasers for the balance of the purchase money ; such a bill is not multifarious, nor is it demurrable for the reason that the purchasers of the lots so sold are not parties to it. Carskadon v. Minke, 26 W. Va. 729.

*Partition of Coast Land to Protect Fishing Interests.—*Where a conveyance by the board of public works to H. and F. bordered on the sea and on the bay, and included not only the land of the plaintiff, but was of a much larger tract, called the Desert, and the plaintiff asked in his bill that the court would declare such partition of said tract of land (if such partition should be necessary) as might be right and proper to protect the use and privileges of the shores and bays mentioned in the bill, to which said tract adjoined, for fishing thereon, as authorized by law, it was held that the bill was not demurrable for multifariousness. Garrison v. Hall, 75 Va. 150.

Specific Performance and Injunction.

*Sought against Different Defendants.*—A bill that asks a specific performance against one defendant, and to enjoin a suit for unlawful detainer, brought by -other defendants, claiming under title from the same party against whom specific perform anee is sought, is not multifarious. Shafer v. O’Brien, 31 W. Va. 601, 8 S. E. Rep. 298.

Wills.

*Bill to Obtain Construction of Will, and Recovery of Property—A*bill brought to obtain a construction of a will and the recovery of property held by several persons by titles derived under the same will, is not multifarious. Withers v. Sims, 80 Va. 651.

*Bill by Legatees—Settlement of Executor's Accounts and Distribution.—A*bill brought by residuary legatees is not multifarious which seeks the settlement by an executor of a father of his estate and also of the mother’s estate, whereby the agreement of the parties interested the executor of_the father had agreed likewise to act as executor *de son tort*of the mother and distribute the estate of the mother after the payment of her debts in the same manner and to the same parties, to whom the father’s estate was to be distributed, the two estates being so mingled, as to make their separation difficult. Anderson v. Piercy, 20 W. Va. 282. See Sheldon v. Armstead, 7 Gratt. 264.

(2) *Bills Held, to Be Multifarious.*

Distinct and Inconsistent Causes.

*Two Distinct Causes of Action on Two Different Policies of Insurance.—A*bill which sets forth two distinct *116•and inconsistent causes of action, upon two different policies of insurance, one actually issued, upon which premiums were not paid, the nonpayment being excused by the alleged insolvency of the company: the other, which ought to have been issued, because the first had been surrendered and receipted in full to the company, is bad on demurrer because multifarious. Universal Life Ins. Co. v. Devore, 83 Va. 267, 2 S. B. Rep. 433.

*Bill to Enforce Judgment against Administrator, to Sell Band, Establish a Devastavit, Convene Ileirs and Creditors, and Give Various Other Specified Belief.—A*bill which seeks to enforce payment of a small judgment for costs against an administrator *d. b. n.*out of funds in his hands; to sell the real estate of the decedent to pay such judgment; to establish a devastavit against the administrator, and surcharge and falsify his accounts; to convene the heirs and creditors of said administrator, now deceased; to settle the accounts of his administrator, and sell his real estate; to convene the heirs, settle the accounts of the administrator, and distribute the estate of the third decedent; to convene the devisees, settle the accounts of the executor, and distribute the estate of a fourth decedent,—is multifarious and inequitable. Crickard v. Crouch, 41W. Va. 503, 23 S. E. Rep. 727.

*Bill to Establish a Trust, Becover Bents, Profits, and Purchase Honey, and Assess Dower—A*bill to establish a trust in certain lands, and to recover rents and profits, and to assess dower, and to recover purchase money alleged to be due, is held in Bailey v. Calfee (W. Va. 1901), 39 S. B. Rep. 642, to be multifarious.

*Aslcing Specific Performance, Damages for False Bepresentaiions, for Beceiver, and Other Specified Belief— A*bill is filed (1) against one defendant, for specific performance of a contract; (2) in default of this, to obtain a decree against other defendants, for damages for breach of warranty; (3) against some of the defendants last referred to, for damages for false representations in regard to the title; (4) against one of the defendants last referred to, for breach of his promises to save plaintiff harmless in case the defendant referred to in first clause refused specific performance; (5) for a receiver; (6) for a decree against one of the defendants for payment of his subscription to the stock of the defendant company; (7) to have the assets of the company administered for the benefit of its creditors. To say nothing of the demand for damages and for administration of the assets, as not constituting good grounds for a suit in equity, there remained several other demands against several other defendants which cannot be properly joined in the same suit. The bill is multifarious, and was rightly dismissed on demurrer. Wells v. Sewell’s Point Guano Co., 89 Va. 708.17 S. E. Rep. 2.

*Bill against Grantee of One Heir, and Other Heirs, to Set Aside Deed, and Establish Besulting Trust as an*Alternative.—And a chancery suit, brought by one heir of a decedent against the person to whom heirs of the decedent had voluntarily conveyed all his rea 1 estate, and the other heirs of the decedent, to set aside the deed as fraudulent and void because procured by undue influence, and because the grantor was *non compos mentis,*and, if this should not bé proven, then to set up a resulting trust to a portion of this real estate, because the plaintiff had paid a certain amount of the purchase money when the land was conveyed to the decedent, is multifarious. Shaffer v. Fetty, 30 W. Va. 248,4 S. B. Rep, 278.

*Bill by Heirs—Settlement of Decedent’s Partnership Affairs, Appointment of Beceiver, Accounts,*etc.—In Porter v. Robinson (Va.), 22 S. E. Rep. 843, a bill by heirs alleged their heirship; partnership of their decedent in a firm; sale of all the assets of the firm to a corporation in consideration that the vendee paid all the debts of the firm; completion of the sale by themselves, as heirs, and the surviving partners; sale by the vendee of the same property to a second corporation, in which the purchase price was partly secured by bonds, for the payment of which a vendor's lien was reserved, and subsequently cancelled by the president of the first corporation without authority; execution of a trust deed of all the property by the last vendee to secure a fraudulent issue of bonds; the assumption and nonpayment of the debts of the partnership by the first vendee; stock taken by plaintiffs in the second corporation on representations of the president of the first corporation, also a promoter of the second corporation that the lands would be sold to the latter company for $300,000, whereas they were sold at $330,000. The bill asked for the appointment of a receiver, and settlement of the accounts of the partnership; cancellation of the stock taken in the second corporation; a decree against it and its promoters for the full valueof the stock, and'against the president of the first corporation for the $30,000 profits made by him for the sale of the land; for the restoration of the vendor’s lien, and the cancellation of the trust deed. It was held, that the bill was multifarious.

Parties Not Connected in Interest.

*Charges against Officers of Company, Individual Officers, Groups of Officers, and President and Directors.—A*bill which charges various acts of maladministration against the officers of a company, some of which are attributable to individual officers, some to different groups of officers, and some to the president and directors as a whole, would seem to present a combination of causes of action so hopelessly diverse as to be incapable of adjustment in one suit. Brown v. Bedford City L. & I. Co., 91 Va. 31, 20 S. E. Rep. 968.

II. FORMS OF MULTIFARIOUSNESS.

1. IN GENERAL.—Multifariousness may appear in two general forms. It may be a j oinder of claims of such different characters, that the court will not permit them to be litigated in one record; or it may be where a party is brought as a defendant upon a record, with a large portion of which and of the case made by which he has no connection whatever. Brown v. Buckner, 86 Va. 612, 10 S. B. Rep. 882,; Washington City Sav. Bank v. Thornton, 83 Va. 157, 2 S. E. Rep. 193: Oney v. Ferguson, 41 W. Va. 568, 23 S. E. Rep. 710.

2. AS TO MATTER.—Thus, where debts are assigned to a party who sues for an accounting between the assignor and his several debtors, plea by and of the latter, that the former had made other and conflicting assignments of the same debts, is bad for multifariousness and uncertainty. Porter v. Young, 85 Va. 49, 6 S. E. Rep. 803.

But it is not multifarious for a bill to seek to §ubject a judgment debtor’s interest in lands, chattels, etc., to the payment of plaintiff’s debt. Thomas v. Sellman, 87 Va. 683, 13 S. E. Rep. 146. For illustrations, see cases throughout this note.

3. AS TO PARTIES.--In Carey v. Coffee Stemming Mach. Co., 1 Va. Dec. 863, 20 S. E. Rep. 778, it is held that a bill by a number of stockholders against a *117corporation, alleging fraud in obtaining subscriptions, etc., is not multifarious because each complaint sets forth a different claim. See Hutchison y. Mershon, 89 Va. 624, 16 S. E. Rep. 874; Rader V. Bristol Land Co., 94 Va. 766, 27 S. E. Rep. 590.

III. TERMINOLOGY.

The word “multifariousness” is more generally applied to chancery proceedings, although it is sometimes used as applicable to actions at law. Thus, in Va. N. *So*M. Ins. Co. v. Saunders, 86 Va. 969. 11 S. E. Rep. 794, the term is used in an action at law in discussing the rule against duplicity.

The word most applicable to actions at law is “misjoinder,” though this word is also used to designate an error of form in equitable proceedings. Thus, the court in Brown v. Buckner, 86 Va. 615, 10 S. E. Rep. 882, in the course of its opinion remarks, that, “Although the books speak generally of demurrers for multifariousness, such demurrers may be divided into two kinds. (1) The objection raised to a bill, which though termed ‘multifariousness, ’ is, in fact, properly speaking, a misjoinder of causes of suit; that is to say. the cases or claims asserted in the bill are of so different a character that the court will not permit them to be litigated in one record. Story, Eq. PI. sec. 271, 284. It may be that the plaintiffs and the defendants are parties to the whole transactions which form the subject of the suit, but nevertheless those transactions may be so dissimilar that the court will not permit them to be joined together, but will require distinct records. (2) But what is more familiarly understood by ‘multifariousness,’ as applied to a bill, is where a party is brought as a defendant upon a record, with a large portion of which, and of the case made by which, he has no connection whatsoever. * * * And the objection for misjoinder does not apply when all the parties plaintiff have an interest in the suit, although it is not a coextensive interest.”

IV. REASON FOR RULE.

Convenience—Expense.—Generally, it is held that the reason for the rule which governs a court in sustaining or overruling a demurrer, which sets out multifariousness as an objection, is the question of convenience to all parties concerned.

In Alexander v. Alexander, 85 Va. 353, 7 S. E. Rep. 335. the court says: “The cases upon the subject are extremely various, and the court in deciding them, seems to have considered what was convenient under the particular circumstances, rather than to have laid down any absolute rule.” After setting forth some of the cardinal rules for testing whether in a particular case multifariousness exists. it seems that the reason assigned why in a given instance it would be multifarious, is, that it would render the proceedings oppressive because it would tend to load each defendant with an unnecessary burden of costs; thus, giving an additional reason for objection to the fault.

Discussing the question in County School Board y. Parish, 92 Va. 156, 28 S. E. Rep. 221, it was held that a bill would not be declared multifarious if it proposed to accomplish the end in veiw in a manner and by a proceeding convenient to all concerned, unless the course so pursued was so injurious to one or more of the parties as to render it inequitable to accomplish the general convenience in that manner. See Staude v. Keck. 92 'Va. 544, 24 S. E. Rep. 227; Dillard v. Dillard, 97 Va. 434, 34 S. E. Rep. 60.

V. APPLIES TO WHAT PLEADINGS.

Bill—Answer—PIea."The fault of multifariousness may exist either in the bill, answer or plea, ft the plea contains distinct points it will be bad. Thus, a plea is bad for multifariousness that sets up the statute of limitations, and also alleges that the plaintiff who sued as the personal representative of a decedent was not such representative. See Barrett v. McAllister, 35 W. Va. 103, 12 S. E. Rep. 1106; Miller v. Miller, 92 Va. 196, 23 S. E. Rep. 232; Porter v. Young, 85 Va. 49, 6 S. E. Rep. 803. As to the bill, see cases cited throughout the note.

VI. MULTIFARIOUSNESS AS DETERMINED BY PRAYER FOR RELIEF.

1. IN GENERAL.—H is said by the court in Washington, etc., Bk. y. Thornton, 83 Va. 157, 2 S. E. Rep. 193, that “whether or not a bill is multifarious depends, it is said, upon its allegations, and not upon its prayer.” See Nunnally v. Strauss, 94 Va. 255, 26 S. E. Rep. 580.

*%*ALTERNATIVE PRAYER—A bill is not necessarily bad by reason of raultifariousness because it contains an alternative prayer for relief. But in order, to avoid the fault they should, in general, be consistent. Still a bill in chancery is not multifarious, and therefore demurrable, simply because it contains a prayer for alternate relief, inconsistent with its prayer for specific relief. Korne v. Korne, 30 W. Va. 1, 3 S. E. Rep. 17. See Garrison v. Hall, 75 Va. 150; Carskadon v. Minke, 26 W. Va. 729.

And where the principal object of the bill is to have the profits of a lease collected and applied to pay certain decrees against complainant and insolvent defendant, a prayer that accounts be taken to ascertain the right of the parties under the lease, and the profits applied to pay the decrees and the balance according to the rights of the parties, does not make the bill multifarious, but the decree creditors should be made parties. Yates v. Law, 86 Va. 117, 9 S. E. Rep. 508.

Also, it is permissible for a bill to be framed in a double aspect, but the alternative case stated must be the foundation for precisely the same relief. Thus, stockholders who come into a court oí equity and seek to have their contracts oí subscription rescinded on the ground that they were fraudulently obtained, cannot in the same bill complain of the malfeasance and misfeasance of the corporate directors in the management of the corporate property, and seek relief which rests upon their relation as stockholders of the defendant company. Such relief must be considered a distinct act of affirmance and ratification of the very transaction which they, in another part of their bill, sought to repudiate. Brown v. Bedford City L. *So*T. Co., 91 Va. 31, 20 S. E. Rep. 968.

3. IMPOSSIBLE OR IMPROPER RELIEN ASKED. —Moreover, a bill is not rendered multifarious because it contains averments and prays relief respecting them which could not in *any*event be granted.

Thus, in Snavely v. Harkrader, 29 Gratt. 112, infants by their next friend filed their bill against their guardian, first to surcharge and falsify the settled account of their guardian, and to have him removed; and second, to have a sale of their lands. The guardian demurred to the bill on the ground that it was multifarious. It was held that as the court could not sell the infants’land on a bill filed by them, and no relief on that part of the bill could *118be given, tbe court would consider tbe case as if tbat part of tbe bill was not in it; and tbe demurrer was properly overruled.

VII. AT WHAT STAGE OBJECTION RAISED.

In Answer.—In Virginia tbe demurrer may be embodied in tbe answer. Dunn v. Dunn, 26 Gratt. 291.

On notion to Dissolve Injunction.—But if a bill, which is in part a bill of injunction, be multifarious, tbat objection- cannot be made on a motion to dissolve the injunction. It must be made at tbe final hearing. Shirley v. Long, 6 Rand. 764; Beall v. Shaull, 18 W. Va. 258.

VIII. METHOD OF RAISING OBJECTION.

Demurrer.—In Virginia and West Virginia tbe objection tbat pleadings in chancery are multifarious is usually raised by demurrer. Dnnn-v. Dunn, 26 Gratt. 291; Wells v. Sewell’s, etc., Co., 89 Va. 708,17 S. E. Rep. 2.

And a demurrer in tbe form prescribed by tbe statute, and assigning no grounds, inserted in tbe answer, is sufficient. Dunn v. Dunn, 26 Gratt. 291; Matthews v. Jenkins, 80 Va. 468: Cook v. Dorsey, 38 W. Va. 196,18 S. E. Rep. 468.

And tbe demurrer may *not*only be general but, as stated above, may be embodied in tbe answer. Dunn v. Dunn, 26 Gratt. 291.

IX. BY WHOM RAISED.

Party Prejudiced or Court Sua Sponte.—It is well settled, tbat tbe defence of multifariousness may be made by demurrer by tbe party prejudiced, or by tbe court at tbe bearing *sua sponte.*But where a defendant is liable for each one of tbe amounts decreed in a suit, he cannot object on tbe ground of mnltifariousness.' Wells v. Sewell’s, etc., Co., 89 Va. 711,17 S. E. Rep. 2; Dunn v. Dunn, 26 Gratt. 291.

X. WAIVER.

Though a bill be multifarious, and but vaguely state tbe matter on which relief is sought, consent by tbe parties, to an interlocutory decree tbat tbe cause be referred to a commissioner, to audit, state and settle an account of the amount due each of tbe plaintiffs, is a waiver of any objection to such irregularity; and a demurrer thereafter, for such cause, should be disallowed. Rlttenhouse v. Harman, 7 W. Va. 380. ’

XI. EFFECT AND REMEDY.

1. IN GENERAL.—It is difficult to apply tbe rule against multifariousness in practice. Tbe instances are numerous and inharmonious. A suit is not thrown out of court for this fault except in a plain case. Oney v. Ferguson, 41 W. Va. 568, 23 S. E. Rep. 710. An amendment may be allowed. See Shaffer v. Fetty, 30 W. Va. 248, 4 S. E. Rep. 278.

2. AMENDMENT. — But in West Virginia an amendment is not allowed as a matter of course. Shaffer v. Fetty, 30 W. Va. 248, 4 S. E. Rep. 278.

3. DISMISSAL.—When there is a dismissal it should as a rule, be without prejudice. Shaffer v. Fetty, 30 W. Va. 248.4 S. E. Rep. 278.