101. A Bill for Regulating Proceedings in Courts of Equity
Be it enacted by the General Assembly, that original and subsequent process to bring any person to answer a bill, petition, or information, exhibited in the High Court of Chancery, shall run in the name of the commonwealth, bear teste, in the name of the first Judge of the court, the last preceeding return-day, be issued and signed by the clerk, and be returnable to the first or seventeenth day of the next succeeding, or of the current term, unless another return-day be, in extraordinary cases, specially directed or authorised by some statute; but the day it shall be issued shall be endorsed thereon, and noted in the book wherein the names of the parties shall be first entered. The day of appearance to the process shall be the second day after the end of the term. All process from the court of a county, city, or borough, in Chancery shall run in the name of the commonwealth, bear teste, in the name of the clerk of the peace, the day it shall be taken out, be issued and signed by him, and be returnable to the next succeeding session. If the complainant shall not appear at the day of appearance, in the High Court of Chancery, or at the session, when the cause shall be first called, in any other court, the suit shall be dismissed. The defendant, when he shall first enter his appearance, may give a rule to the complainant to put in his bill, if it shall not have been filed before. When a suit shall be dismissed for want either of appearance or prosecution, the defendant shall recover costs of the complainant. A complainant may have leave, without application to the court, to amend his bill at any time before he shall have replied to the answer, paying to the defendant all his costs occasioned thereby; and if he shall not file the amended bill, within the same time as is allowed for filing the original bill, the suit may be dismissed. Rules to file bills and replications and for other proceedings in the High Court of Chancery, shall be given with the clerk in vacation, and in every other court shall be given with the clerk in sessions, and shall be entered, the former in a book to be kept for that purpose, and the latter with the other proceedings of the court, and every such rule shall be out in one month, so that, if the party make default, the suit may be dismissed, or such order be made as is proper in the case. All proceedings in the clerks office of the High Court of Chancery may, from time to time, be controuled by the court in the succeeding term, who may also set aside dismissions and reinstate causes upon such terms as to them shall seem equitable. If the defendant shall not appear, at the day of appearance, in the High Court of Chancery, or at the session when the cause shall be first called, in any other court, the subpœna having been served upon him, and such service being proved, either by the return of a sworn officer, or by the affidavit of some other person, or if the defendant, having appeared, shall not put in his answer to the bill, before the expiration of three months, in either case an attachment shall be awarded against him; and such attachment, issuing from the court of a county, city, or borough, may be directed to, and shall be obeyed by, the sheriff of any other county. A defendant may swear to his answer before a Judge of the court, in which the suit shall be depending, or before a Justice of the Peace of any county, city, or borough. The defendant, to a cross bill, shall not be compelled to put in his answer thereto, before the complainant, in the cross bill, shall have put in his answer to the other bill; nor shall an attachment be awarded against the defendant to the cross bill for not answering, until the expiration of three months after such answer to the first bill shall have been put in. If the complainant shall not except or reply to the answer, before the end of two months after it shall have been put in, a rule may be given him to reply. Exceptions to an answer, if, before the end of two months after they shall have been filed, another answer be not put in, shall be set down to be argued. The complainant shall pay costs to the defendant, if the answer be adjudged sufficient, and recover them of him, if otherwise; the costs shall be doubled, if a second answer be adjudged insufficient; and if a third be so adjudged, the defendant, besides paying costs, shall be examined upon interrogatories, and be committed until he answer them. When the answer of a defendant, put in after process of contempt served upon him, shall have been excepted to, and adjudged insufficient, if he put not another answer in, at or before the next term, or session, the bill may be taken for confessed, unless it seem reasonable to the court to allow the defendant further time to put in such other answer. If the matter of a plea by verdict be found false, the complainant shall have the same advantage thereof as in case of a verdict in a court of common law. After any issue, made upon a plea, shall have been tried, or any demurrer shall have been over-ruled, no other plea or demurrer to the same bill shall be admitted; but the defendant shall answer the allegations of the bill. If the complainant shall not reply to a plea, or set down a demurrer to be argued, at the end of two months after they shall have been filed, his bill may be dismissed. If the matter of a plea be found true, or a demurrer adjudged good, the defendant shall recover costs; but, otherwise, the complainant shall recover costs to that time; and, unless the defendant put in an answer, before, or at, the end of two months thereafter, the bill shall be taken for confessed, and the matter thereof decreed. Any party may have commissions to take the examinations of his witnesses, and, reasonable notice being given to his adversary of the time and place of executing the commissions, such examination of any witness, who may lawfully be examined viva voce, may be read as evidence at the trial, if the party, at whose instance the witness was examined, shall prove, that he was not in the commonwealth, or was dead, or so infirm that he could not attend personally, and not otherwise. Every matter of fact, affirmed by one party, and denied by the other, in a bill, and answer, or plea, shall be stated as a formal issue, and tried before the same court, by a jury, in like manner as such issue ought to be tried in a court of common law, and upon like evidence as is there admissible, and not otherwise;1 for trial of which issue the sheriff attending the court shall summon the jury, and the clerk shall issue subpœneas for summoning the witnesses, in the same manner as they do in the courts of common law; and the persons so summoned shall be subject to the power of the court, in the same manner, intitled to the same allowances, and liable to the same penalties, as they are in those courts. Auditors appointed by the court may examine the parties, upon oath, touching any matters in question, and shall have such allowance for their trouble in taking the account as the court shall adjudge reasonable, to be paid by such party as the court shall think justly chargeable therewith. The proceedings of the High Court of Chancery shall be entered and daily drawn up by the clerk, and, the necessary corrections being made, shall be signed the next day, by the presiding Judge, except on the last day of a term, when they shall be signed the same day; and the minutes of the proceedings of every other Court of Chancery shall be entered by the clerk, and signed by the presiding Justice, before the adjournment, and the said proceedings shall afterwards be drawn up at large. The bills, answers, replications, and depositions, in every cause, with the orders, decrees, and other proceedings, of the court, shall be recorded in well bound books, to be carefully preserved. Any two Judges of the High Court of Chancery, when it is not sitting, may grant writs of certiorari, ne exeat, and injunction, in the same manner as the court may grant them. But, before any writ of certiorari, to remove a cause, shall be issued, the party desiring it shall produce an affidavit, that ten or more days notice in writing of the time when, and place where, a motion would be made to the court, or a petition be presented to the two Judges for that purpose, had been given to the adverse party; the truth of the allegations of which petition shall be sworn to, or be otherwise proved; and he shall give bond, with sufficient surety, in such penalty, payable to the other party, as the court, or Judges shall direct, with condition for performing the decree of the court. No writ of ne exeat shall be issued, if the demand be triable in a court of common law; nor before a bill shall have been filed, with affidavits, or other evidence, to prove the allegations thereof to be true; nor before the complainant shall have given a bond, with sufficient surety, in a penalty directed by the court, or Judges, payable to the defendant, with condition for payment of all such damages and costs as shall be recovered by him against the complainant, by occasion of suing out the said writ; which bond shall be delivered to the defendant. On the writ shall be endorsed the penalty in which bond shall be taken in execution thereof. If the defendant satisfy the court or Judges by answer, affidavit, or otherwise, that he hath no design to leave the country, or that he is not indebted to the complainant, the writ shall be discharged. No writ of injunction to the judgment, or proceedings, in any action at common law, shall be issued, unless affidavit, or other proof, be made, that the allegations of the bill are true; nor before bond, with sufficient surety, and in an adequate penalty, payable to the plaintiff in the action, be given, with condition for payment, as well of the debt or damages recovered, or to be recovered, in the action, as of all such costs and damages as shall be awarded to the same plaintiff, in case the injunction be dissolved; which bond shall be delivered to him. Any party may appeal to the High Court of Chancery from a decree of the court of any county, city, or borough, giving bond, within ten days thereafter, with sufficient surety, in an adequate penalty, payable to the adverse party, with condition for performance of the decree, if it be affirmed, or so much of it as shall be affirmed, and for payment of the damages and costs which shall be awarded to the appellee. If the appeal be not entered at the session when the decree shall have been pronounced, the party thinking himself aggrieved may, within three months afterwards, appeal therefrom, lodging for that purpose, with the clerk of the High Court of Chancery, a copy of the proceedings in the cause, and a petition suggesting error in the decree, signed by some counsel attending that court, and also lodging with the petition, a bond, with sufficient surety, in like penalty, and with like condition, as in the other case; and the clerk shall thereupon issue a summons against the appellee, requiring him to appear, and answer the said petition and appeal; and shall also issue a supersedas, when it shall be necessary, to surcease further proceeding, in execution of the decree; and the court shall and may hear and determine the appeal, in the same manner, as if it had been entered at the time the decree shall have been pronounced; and in both cases the bonds shall be delivered to the appellees. In any suit in the High Court of Chancery, against a defendant, residing out of the country, the court may order any other party in the suit to retain the estate or effects of the absent defendant, which he may have in his hands or possession, or so much thereof as shall be sufficient to answer the demand of the complainant, or make such other order, for securing the estate and effects, for that purpose, as shall be thought effectual, unless security, to be approved by the court, be given to perform the decree; the complainant first making affidavit, that the demand is just. If a defendant or other person, against whom a subpœna or other process shall be issued from the High Court of Chancery, shall not cause his appearance to be entered, within such time, and in such manner, as it ought to have been entered, in case the process had been served, affidavit being made, that the defendant is not in the country, or that there is good reason to believe he absconds, to avoid being served with process, the court may make an order, that the defendant appear at a certain day, to be appointed, and a copy of the order shall, within fourteen days, be printed in the Virginia Gazette, and, if he reside in the country, published at the court-house of the county, wherein was his usual abode, within six weeks after making the order, and shall also be posted up at the front door of the house, in which the court shall sit. And if the defendant shall not appear at or before the day appointed, or at or before such further day as the court, if they see cause, shall allow, the court may order the bill to be taken for confessed, and make such decree as shall seem just, and award process to compel the performance thereof, either by immediate sequestration of the real and personal estate and effects of the defendant, or so much thereof as shall be sufficient to satisfy the demand of the complainant, or by causing the estate or effects claimed by the complainant to be delivered to him, or by granting such other relief as may seem proper, according to the nature of the case, and agreeable with the principles of equity; the complainant first giving sufficient security to perform such order, touching the restitution and disposition of the estate and effects, as the court shall make upon the appearance of the defendant, and paying reasonable costs; or if the complainant fail, or be unable to give security, the court may order the estate and effects, sequestered, or whereof possession shall have been ordered to be delivered, to remain under the direction of the court, appointing a receiver thereof, or otherwise, until such further order shall be made as the court shall think just. The court of any county, city, or borough, in Chancery, may proceed in the same manner, against any citizen out of the country, or absconding, to avoid being served with the process of such court, and shall have the same power over his estate and effects as the High court of Chancery, if it appear, to the satisfaction of such inferior court, by affidavit, or of their own knowledge of the fact, and be so entered in their proceedings, that the Defendant had formerly resided within their jurisdiction, and had not removed out of it so long as one year before the subpœna issued. If a defendant, brought before any court of Chancery, by virtue of the process thereof, shall refuse or neglect to enter his appearance, or to appoint an Attorney to act on his behalf, the court may appoint an Attorney to enter an appearance for him; and thereupon such proceedings may be in the cause, as if the defendant had appeared: but no process shall be issued, to compel the performance of a decree, made upon a refusal, or neglect, to enter an appearance, or to appoint an Attorney, before the defendant, if he be in custody, or forthcoming, shall have been served with a copy of the decree. The copy of a decree against a defendant, out of the country, or absconding, made for not appearing, shall be served upon him, if, within seven years after it shall have been made, he return, or become publickly visible, or, in case of his death, upon the heir, devisee, executor, or administrator, representing him, as to the matter in controversy. If the defendant, or his representative, having been served with a copy of such decree, shall, within seven months after the service, or, not having been served with the copy, if he, or his representative, or any person claiming under him, by virtue of any act prior to the commencement of the suit, shall, within seven years after making the decree, appear in court, and petition to be heard, with respect to the matter of the decree, and shall pay down, or give security for payment of, such costs as the court shall think reasonable, the petitioner may be admitted to answer the bill, and issue may be joined, and witnesses on both sides examined, and such other proceedings, decree, and execution, may be thereupon, as there might have been, if the party had originally appeared, and the suit had then been newly begun, or as if the former decree had not been made. But if the defendant, or his representative, having been served with a copy of such decree, shall not, within seven months after the service, or, not having been served with the copy, shall not, within seven years after making the decree appear, and petition, that the cause may be reheard, and pay down, or give security for payment of such costs as the court shall think reasonable, the decree shall stand confirmed against the defendant, and all persons claiming under him, by virtue of any act, subsequent to the commencement of the suit: and the court, at the end of the seven years, may make such further order as shall seem just and reasonable, according to the circumstances of the case. An attachment against a defendant, for a contempt, in not appearing to answer a bill, or in not answering a bill, shall be executed in the same manner as a writ of capias in an action at common law, whereon no direction to take bail is endorsed; and where any such attachment shall appear, by the return thereof, to have been executed, if the defendant shall not appear, or answer, the bill be taken for confessed, and the matter thereof decreed; and if the demand be not ascertained by the bill, and exhibits, or one of them, a jury shall be impaneled to enquire of and assess, the damages, at the following term, or session, in the same manner as in the case of an interlocutory judgment at common-law. In taxing costs, a lawyer’s fee shall be allowed to the party who shall recover costs.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 69–71. MS (ViU); clerk’s copy.
See TJ’s Bill for Establishing a High Court of Chancery, under date of 25 Nov. to 4 Dec. 1776; also the Act as adopted at Oct. 1777 session, Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 389–99, and notes to Bill No. 90, above. Bill presented by Madison 31 Oct. 1785, read twice, and on 14 Dec. postponed to Oct. 1786 session; on 1 Nov. 1786 it was brought up again, read twice, and committed to committee of the whole (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 92; same, Oct. 1786, p. 16–17). Apparently no further action was taken, though at the Oct. 1787 session the Act for Establishing a High Court of Chancery was amended in respect to rules of practice and procedure “because justice is greatly delayed by the tedious forms of proceedings, suitors are therefore obliged to waste much time and expence, to the impoverishment of themselves and the state, and decrees when obtained are with difficulty carried into execution” (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 464–7).
1. This important proviso restates in more precise terms the corresponding section of the Act of Oct. 1777. Concerning that Act TJ wrote in his Autobiography: “In that one of the bills for organizing our judiciary system, which proposed a court of Chancery, I had provided for a trial by jury of all matters of fact, in that as well as in the courts of law. He [Edmund Pendleton] defeated it by the introduction of four words only,‘if either party choose.’ The consequence has been, that as no suitor will say to his judge, ‘Sir, I distrust you, give me a jury,’ juries are rarely, I might say, perhaps, never, seen in that court, but when called for by the Chancellor of his own accord” (Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends i, 51). Actually an amendment to this effect was inserted in the 1776 Bill for Establishing a High Court of Chancery, introducing the qualifying words “if either party shall desire it, or the Court shall think proper to direct the same.” This amendment was adopted in 1776 and continued in the Bill when it was brought up again in 1777; but it was deleted and is not in the Act as adopted (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 394). TJ remembered the amendment, but forgot that it failed to become law.