
    *Hill & als. v. Bowyer & als.
    April Term, 1868,
    Richmond.
    Absent, Rives, J.
    
    1. Decrees — Opening- By Petition or Original Bill. — A party against whom a decree has been rendered, without his appearance, may apply to the court to have the decree opened either by petition or by original bill. In either form it is an original proceeding, and may be commenced without previous leave of the court.
    2. Same — Same—Petition Rejected — Effect.—If application is made to the court for leave to file a petition to open a decree, and the application is rejected, this is not a legal adjudication upon the case presented in the petition, as it would be in the case of the refusal to allow a bill of review to be filed, in which case the leave is necessary to entitle the plaintiff to file it; and the party may therefore file his original bill to have the decree opened.
    
      3. Same — Correction of Errors — Original B!H — Cannot Be Treated as Bill of Review- — An original bill which seeks to correct errors in a decree by default apparent on its face, and also set it aside on the ground of mistake and surprise, having been filed without leave, cannot be treated as a bill of review. But a copy of the original record being filed with the bill, the court may consider and correct any errors apparent on the face of the decree, which may be corrected by the court, under the Code, ch. 181, § 5.
    4.Same — Same—Under Direction of Counsel — Client Bound. — Decrees by default in favor of husbands and wives give interest upon interest; but the counsel of the parties direct the clerk to correct the error by endorsement on any executions that might be issued upon them; which is done. The counsel had full authority to ^direct the correction, and to bind the wives as well as their husbands; and thus to correct the error.
    g. Appellate Practice — Depositions — Notices —Presumption. — in the absence of obj ection in the conrt below, an appellate court would, presume that notices to take the depositions were duly given, the contrary not appearing; and an objection to depositions op this ground, where the decree was by default, would not be available on a proceeding under § 5, ch. 181 of the Code.
    6. Commissioners — Taking an Account — Notice by Pub lication. — The statute. Code, ch. 175, § 4, does not limit the class of cases in which the court may direct that notice maybe given by publication; and it is no valid obj ection by a party upon whom process in the suit has been served, that he did not see or hear of the notice by publication of the taking an account by a commissioner, under the order of the court.
    7. Appellate Practice — Taking an Account — Presumptions as to Regularity, — In the absence of objection in the court below, that the Commissioner had not regularly adjourned from time to time the taking the accounts, an appellate court •would presume that they were regular; and the objection is not' therefore available under § 5, ch. 181 of the Code.
    8. Chancery Practice — Decrees—Reversal of — Muitifa-riousness. — A decree by default is made against a guardian and his sureties; and the process had not been served on one of the sureties. Upon a bill by the guardian and the other sureties, to open the decree, no objection to the decree on this ground can be raised by them. Nor will the objection of multifariousness alone be ground for reversing the decree.
    9. Decree ;by Default — Relief from — Laches.  — A de- ' fendant upon whom process has been served, who wholly neglects his defence, or contents himself with merely writing to a lawyer who practices in the court to-defend him, without giving him any information about his defence, or en-quiring whether he is attending to the case, is not entitled to relief against a decree by default, on the ground of'surprise, however grossly unjust the decree.may be.
    In January, 1851, James M. Bowyer and Ruth J., his wife, filed their bill in the Circuit Court of Albemarle county, in which they set out, that Achilles Wood, the father of the female plaintiff, departed this life about the year 1833, having- made a will, which was duly admitted *to probate in the county court of • Albemarle. That he left a widow and two infant daughters; the female plaintiff and Rhoda, who mariied George Hill. That he provided that the estate might be kept together, unless the widow married again; but in that event, or whenever the executor thought best, it was to be divided, one-third to the widow for life, and the residue in equal proportions to his two children.
    That the executor declined to qualify, and Ryland Rhodes qualified as administrator with the will annexed. That in 1834 he was removed, and the estate was committed for administration to Bazallet Brown.
    That in February, 1833, on motion of Rhodes, the administrator, an order was made appointing Commissioners to divide the estate; and a division was made. That there was a tract of land of six hundred and seventy-one acres, of which one hundred and eighty-five acres, including the dwelling house, were allotted to the widow, and one slave; the remainder of the land, with four slaves, was allotted to the two daughters.
    That about the year 1835 or 36, the widow removed to the county of Greenbrier with her children, and about the same time married John Cooper. In 1839, William Carey was appointed guardian of the children. The only estate coming to his hands as guardian being the land and slaves. In June, 1840, Carey was removed from the guardianship, and Samuel S. Smith was at the same time appointed guardian in his stead, with Shannon Butt and Edwin R. Fanshaw as his securities.
    That at the January term, 1845, of Fay-ette county court, an order was made to the effect that Ruth Jane Wood and Rhoda B. Wood, with the approbation of the court, made choice of Hiram Hill as their guardian, who together with Robert McCutchen, John Rhodes, Charles Bibb and James Y. Waite, his sureties, entered into a *bond in the penalty of $4,000, conditioned according to law. That at the April term, 1845, of the county court of Fayette, another entry is made, to the effect that H. Hill presented in court, under oath, an account of the property and effects belonging to his said wards, which had come to his hands; but though the office of the Fayette county court has been searched, yet no trace of such paper can be found, though at the time the said Hill was clerk of the court. That at the June term, 1850, of the court, upon the application of his sureties, he was removed, as appeared by a copy of the order filed with the bill.
    That John Cooper dying, his wife, some years afterwards, married William Tracey, and they then lived in the county of Fay-ette.
    The bill states, that all the slaves have disappeared; that it is said Smith sold one of them; that Tracey sold one or more of them; and that George Hill, after his marriage with Rhoda B., got into his possession one of the said slaves, and sold him.
    George Hill and Rhoda B. his wife, the two administrators Rhodes and Brown, Smith and his sureties, Hiram Hill and his sureties, and Tracey and wife, were made defendants to the bill; and accounts were asked against the administrators and guardians.
    Process was served upon all the parties, except Waite, one of the sureties of Hiram Hill, and the sureties of Smith, and Tracey and wife. The case was, however, compromised between Smith and his wards; and there was an order of publication against Tracey and wife as absent defendants; but the record states that there was no evidence of the execution of this order.
    By an order made in vacation, on the 11th of February, 1853, which was modified by an order made in term in May, 1853, a commissioner was directed to take an account— First, of Rhodes’ administration on the estate *of Achilles Wood. Second, of Brown’s administration on same estate. Third, Smith’s guardianship account. Fourth, Hiram Hill’s guardianship account; and, fifth, an account between Rhodes and Brown and the children of Wood. And the commissioner was directed, instead of serving personal notice on the parties of the time and place of executing the order, to have such notice published once a week for four successive weeks in some newspaper in the town of Charlottes-ville; and also to serve a notice on the counsel respectively engaged in the suit, of the time and place of taking said accounts, four weeks previous to the time of commencing the same.
    The commissioner returned his report on the 14th of April, 1854; but the only account which it is necessary to notice is that of Hiram Hill as guardian of the two children of Achilles Wood.
    The commissioner, in his report, states that he fixed on Wednesday, the 10th of August, 1853, as the time for executing the order, and notified the parties by publication for four weeks successively in the Virginia Advocate, and by giving personal notice to all the counsel engaged in the cause who were known to be so engaged. That at the time appointed, some of the parties attended in person and by counsel, and the cause was taken up. It was then left open for the introduction of further testimony on both sides, and from time to time the depositions of various persons were taken, a number of these before the commissioner, and others in different parts of the State. Finally, the commissioner fixed upon the 10th of the then month March, 1854, as the time at which, if the parties were through with their testimony, he would take up and complete his statements, and report in the case. Of this the parties had informal notice through counsel several months beforehand.”
    In making out the account of Hiram Hill as guardian *'of his wards, it is commenced from the time of his appointment in January, 1845, and is carried on to June, 1850 — the time when it was stated in the bill the guardianship terminated ; which statement was founded on an office copy of the order by which he was removed, and which purported to be made at the June term, 1850.
    The commissioner stating in his report that Hill had never attended before him, had filed no answer, and had paid no attention to the case, charged him not only with the rent of the land and the hire of the slaves until they were disposed of, from 1845 to 1850, but also charged him with the price or value of the four slaves. Of these the commissioner reports, that the guardian permitted Tracey to sell one in 1846; that George Hill, who married Rhoda Wood, sold another for $487.50; that another -was sold in 1849 by Ruth, the wife of the plaintiff, who was said then to be a minor, and that Tracey got the money; and as the commissioner could hear nothing of the fourth, he charged Hill with her estimated cash value on the 1st of Januarj’, 1851, at $500. No credits for disbursements of any kind were allowed; but George Hill and wife were charged with the price of the negro he sold, and the hire of him for the year 1847. The account thus made out made Hiram Hill debtor to the female plaintiff on the 1st of January, 1851, $1,257.57; and on this sum the commissioner calculated interest up to the 22d of May, 1864, $255.70; making principal and interest, $1,513.27; and he was made debtor to George Hill and wife at the same date in $724.92, upon, which interest was also calculated to May 22, 1854, $147.40, making principal and interest $872.30. But if Bowyer and wife should get from George Hill the sum of $337.30, being one-half principal and interest to May, 1854, of the price of the slave sold by George Hill, then Hiram Hill would be indebted to George Hill and wife $1,209.65; and to Bowyer and wife but $1,175.97.
    *George Hill excepted to the commissioner’s report in relation to the charge against him for half the price of the slave he sold.
    The cause came on to be heard on the 26th of May, 1864, when the court overruled the exceptions of George Hill to the commissioner’s report, and confirmed the-same in all respects, except as to the transactions of Ryland Rhodes; and after decreeing as to other parties, decreed that the defendants Hiram Hill, and his sureties Robert Mc-Cutchen, John Rhodes, Charles Bibb and James Y. Waite, should pay to the plaintiffs the sum of $1,513.27, with interest on $1,257.57, a part thereof, from the 1st day of January, 1851, till paid; subject to certain credits as of the 22d May, 1854, for one moiety of a sum decreed against Brown, and for a sum decreed against Sandridge. And the court decreed against the same parties in favor of George Hill and wife for the sum of $1,209.62, with interest on $968.67, a part thereof, from the 1st day of Januar3r, 1851, till paid; with an ulterior provision which it is not necessary to state.
    Executions having been issued upon these decrees against Hiram Hill and his sureties, he presented a petition to the judge, in ' which he complains of great injustice being- done him by the decree. He says that he had been guardian of these parties for a short time, and no profits had ever come into his hands; and he exhibited copies from the records of the County Court of Fayette, showing that he had been removed from his guardianship in June, '1845, instead of 1850, as stated in the bill, and in the copy filed with it. He said that he had employed counsel practicing in the court to defend the suit, and knowing that nothing was due, he had given himself no uneasiness about the matter. That the counsel he had written to mistook the party for whom he had been retained, and had prosecuted the claim for George Hill, *and thus the petitioner had been left wholly undefended. And he prayed that the case might be re-opened, and that he might have relief.
    There is no notice of any action of the court on this petition; though it seems that the motion to file it was refused.
    In April, 1855, ;Hiram Hill and three of his sureties as guardian, viz., John Rhodes, Charles Bibb and Robert McCutchen, filed their bill in the Circuit Court of Albemarle county, against James F. Bowyer and Ruth J. his wife, and George Hill and Rhoda B. his wife, asking for an injunction to the decrees which |had been rendered against Hiram Hill and his sureties; and that the decrees might be re-opened, reconsidered and reversed; and for general relief. They made the record in that case an exhibit with their bill; and set out various irregularities and errors in the proceedings and -decrees.' Hirst- — That the first subpoena, which issued November 15th, 1850, was against George Hill and wife alone; but that others were issued in January, 1851, against numerous other defendants, without noticing G. Hill and wife; and the bill was filed including Hill and wife, and these other defendants. Second — That the bill was multifarious, against different parties, in different characters, and for wholly independent transactions. Third — That though an order of publication was made against Tracey and wife as absent defendants, there was no proof of the fact that they lived out of the State, and the order was not executed; and no process had been served on Butt and Farnsworth, the sureties of Smith as guardian, or upon Waite, one of the sureties of Hiram Hill; and yet that decrees had been rendered against Waite to a large amount. Fourth- — That notice by publication of the taking the accounts by the commissioner was improper ' in the case; and that the commissioner had not adjourned his proceedings in taking the *accounts , regularly. Fifth — That depositions had been taken both before the .commissioner and in the country without notice to Hiram Hill or any of his sureties. Sixth— That the decrees are for interest on the principal sums from the 1st of January, 1851, whilst the commissioner had calculated the interest down to May 22d, 1854, and the decree included this interest with the principal sums, and was for the whole amount; thus giving interest for this period twice.
    The bill further alleged, that Hiram Hill had been removed from his guardianship in June, 1845; and that having been guardian but a few months, and the slaves having been hired out for the year, nothing had been received by him. That when the subpoenas were served upon Hiram Hill and his sureties, they knowing nothing of the grounds of his defence, committed it to him; that he employed able and experienced counsel to defend his interest, Mr. E. R. Watson, who practiced in the court; that he felt satisfied he would be fully defended; and knowing himself not to be justly liable for any amount, gave himself no uneasiness about the matter. That when the executions came out and were placed in the hands of the sheriff of Fayette county, he immediately wrote to Mr. Watson, his counsel in the case, inquiring into the matter, and received a letter from him informing him that, by mistake, he had prosecuted the claim of one of the defendants in the suit of the same name, instead of defending Hiram Hill; so that the latter was wholly undefended in the suit. The injunction was awarded; but was never perfected by executing the injunction bond with security.
    The defendants, George Hill and Rhoda his wife, were proceeded against as absent defendants. Bowyer and wife demurred to the bill, and also answered. They insisted, that there was no error of law or fact apparent upon the ^record which could entitle the plaintiffs to review the decree. And they insisted, that the excuse given for not attending to the de-fence of the case by Hiram Hill and his sureties was not sufficient to entitle them to relief on the ground of surprise; on the contrary, it evinced the grossest negligence on the part of these parties. And they insisted, that if there had been any error, it was not occasioned by any act of theirs; they having filed with their bill the copies from the clerk’s office of Fayette County Court as they received them, without any knowledge of a mistake in the dates.
    It was proved by the clerk of the county court of Fayette, and copies of the orders of the court, that Hiram Hill was in January, 1845, chosen by Rhoda and Ruth Woods, with the approbation of the court, as their guardian, and gave bond, with the sureties before named, as guardian; and at the June term of the court for the same year he was removed. Of the five slaves belonging to the infants, which went into the hands of Smith, the previous guardian, one was sold by the order of the county court of Greenbrier, where Smith was appointed, for the payment of debts of the wards. Of the remainder, one seems to have been sold by Tracey in 1846; one was sold by George Hill in 1848; one was sold by Ruth Wood whilst, it was said, she was an infant, in November, 1849, whilst she was living with Tracey and her mother, at Point Pleasant, in Virginia; the other woman died, and her child, of about a year old, was sold in August, 1845, to Joshua Mooney. The bill of sale is signed by Rhoda and Ruth Woods, but they were then minors, living with Tracey and wife. In August, 1845, Tracey, acting as agent for the children of Achilles Wood, rented their land to James R. Watson for three years, commencing on the 1st of January, 1846, for one hundred and ten dollars, of which ten dollars were to be discharged by putting up rails on the place. Tracey ^assigned this bond to G. T. Antrim; and Watson enjoined the payment of the money on the ground that it was the property of Achilles Wood’s children. This cause was pending in the court when the case of Bowyer and wife against Hill and others was decided; and the Commissioner suggested they should be heard together; which, however, was not done.
    It was, therefore, abundantly evident that the Commissioner’s report and the decrees based upon it, did great injustice to Hiram Hill and his sureties, and subjected them for a large amount, for which they could not have been liable if the case had been properly defended. And the question, therefore, was, whether the excuse for not attending to the case was sufficient. The only proof that Hiram Hill employed counsel to defend him, or that he ever gave any attention to the case himself, is a 'letter of E. R. Watson, Esq., dated Charlottesville, September 6th, 1854, filed by Hill. In it Mr. Watson says: “I have a letter from you dated June 26th, 1854, in which you say that you had previously written to me to attend to your interests in the chancery suit brought by Bowyer and wife, and that I replied I would do so. In the progress of the case, which was frequently referred to between Mr. Rives and myself, he took charge of its management, and I did not attend to it at all; but devoted myself to other cases, to which he paid no attention —I being perfectly satisfied that he was representing the Mr. Hill who had written to me. It turns out that Mr. George Hill had retained us in the case, in my absence, or by letter which I never saw, and Mr. Rives was really representing him, whose interests in the case were, I believe, adverse to yours. We could not, in fact, have acted as your counsel; but my misapprehension doubtless prevented me from informing you of our position, and thereby giving you an opportunity to employ other counsel. ’ ’ *The cause came on to be heard in May, 1859, when the court dissolved the injunction and dismissed the bill, with costs; and thereupon the plaintiffs applied to this court for an appeal, which was allowed.
    There is a certificate of the clerk of the Circuit Court appended to the record, that the counsel of Bowyer and wife and G. Hill and wife had directed him, as clerk, to endorse ; and, under such instructions, he had endorsed on the execution book of his office ; and that he had also been directed, as clerk, to endorse on any executions issued on the decree of May 22, 1854,. in favor of Bowyer and wife and. Hill and wife, against Hiram Hill and others, the following corrections of errors in said decree: so much of said decree as gives interest upon interest from January 1st, 1851, to May 22d, 1854.
    The cause was argued in writing in the Circuit Court by John Thompson, Jr., for the plaintiffs, and V. W. Southall for the defendants; and these notes -were printed with the record, and were before the judges of this court.
    
      
      He had been counsel in the original cause.
    
    
      
      Bill of Review- — Leave of Court to File Necessary. — In Amiss v. McGinnis, 12 W. Va. 394, the court said: “Mr. Robinson in the second volume of his old practice, at page 418, sa3Ts: lln Virginia the practice is to apply in the first instance for leave to file a bill of review, whether it be for error apparent in the body of the decree, or upon discovery of new matter since the decree was pronounced;’ and he refers to 2 H. & M. 591, note; Quarrier v. Carter’s Representatives, 4 II. & M. 248. See also, the case of Hill et al. v. Dowyer et al. 18 Gratt. 864 and 267. I apprehend the practice in this state in this respect is the same as in Virginia. At least X am not aware of any different practice haying been recognized.”
    
    
      
      Decrees — Correction of Errors — Bill of Review.— The principal case was distinguished in Amiss v. McGinnis. 12 W. Va. 399, where the court held that, when a party files a bill of review for errors of law, and the bill is barred by the statute of limitations, it is not proper to treat it at the hearing as a notice to correct errors under Code 1860, c. 181, ! 5, especially if one of the plaintiffs in the bill could not make such motion under said section.
      Bill of Review — Ground of. — in Carter v. Allan, 21 Gratt. 245, the principal case is cited as authority for the rule that errors of law apparent on the record, and newly-discovered evidence, are alone proper grounds of a bill of review. See also, foot-note to Carter v. Allan, 21 Gratt. 241.
      Notice — Treated as Bill of Review. — See footnote to Kendrick v. Whitney, 28 Gratt. 646.
      Chancery Pleading — Technicalities Abolished -Bill of Review — Treated as Original Bill. — In Sturm v. Fleming, 22 W. Va. 412, the conrt said: “A rigid and technical construction of bills and other pleadings is exploded. Mayo v. Murchie, 3 Mnnf. 381. Many of the old forms, names and technical distinctions of bills are abolished, and all that is now required is that the material allegations should be put in issue by the pleadings so that the parties may be duly apprised of the essential enquiry and be enabled to meet it by testimony. The name and the form are immaterial. Substance is all that is required. In Virginia the practice of courts of equity, which is the rule of practice in this state, allows the greatest liberality with respect to pleadings. Sometimes a petition for a rehearing is treated as a bill of review and Dice versa, a notice to correct a decree on bill taken for confessed may be treated as a petition for a rehearing. Kendrick v. Whitney, 28 Gratt. 646. A bill of review may be regarded as an original bill or a petition in the nature of an original bill. Hill v. Bouyer, 18 Gratt. 364, In Laidley v. Merrifield, 7 Leigh 346, it was declared that an application of a party is not to be rejected altogether because he has given it the form and name of a bill of review, instead of a petition or a supplemental bill in the nature of a bill of review. Judge Cabell said the conrt should regard its substance, and treat it accordingly as a petition or a supplemental bill in the nature of a bill of review.”
      See also, foot-note to Mettert v. Hagan, 18 Gratt. 231.
      Decrees—Errors—Appellate Practice.-Davis v. Commonwealth, 16 Gratt. 134; Goolsby v. Strother, 21 Gratt. 109. and footnote.
      
    
    
      
      Appellate Practice — Depositions — Notices. — Sleptoe v. Read, 19 Gratt. 8; Coffman v. Sangston, 21 Gratt. 271, cite the principal case as authorizing the rule that objections to depositions for want of proper notice to a party cannot be made for the first time in an appellate court.
    
    
      
      Decree by Default — Relief from — Laches.—Post v. Carr, 42 W. Va. 72,24 S. E. Rep. 585, cites the principal case as authorizing the proposition that a party to a suit must not depend entirely upon an attorney’s attention to the case, and the action of parties so relying is not ground for a new trial, because they evince negligence and want of due diligence. On this point, the principal case is also cited in Hubbard v. Yocum, 30 W. Va. 755, 5 S. E. Rep. 875.
      On the subject of laches as grounds for refusal of equitable relief, see Doggett v. Helm, 17 Gratt. 96. and foot-note', also, Bargamin v. Clarke, 20 Gratt. 544, and foot-note, where there is an extended collection of cases in point and also reference to other footnotes is. this series of reports where the subject is discussed.
    
   JOYNES, J.

The petition presented by Hiram Hill at the fall term, 1854, is spoken of in the bill in this case, and in the printed arguments, as a bill of review. But it was not a bill of review, either in form or in substance. It did not allege either error of law apparent on the record, or newly discovered evidence, which are alone the proper grounds of a bill of review. It was a petition to open the original decree, which had been rendered without an appearance by the petitioner, and alleged accident and surprise as the grounds of it. Such a proceeding may be either by petition, as in Kemp v. Squire, 1 Ves. Sr. R. 205, and Cunyngham v. Cunyngham, Ambler R. 89; which seems to be the usual and proper practice in England (2 Daniel Ch. Pr. 684-5, and cases cited), or by original bill, as in Erwin v. Vint, 6 Munf. 267, and Callaway *v. Alexander, 8 Leigh 114. In either form it is an original proceeding, and may be commenced without previous leave of the court. It is alleged in the bill that this petition was presented to the court, and that the court overruled the application for leave to file it, though the order of the court is not in the record. The refusal of the court to allow this petition to be filed was not a legal adjudication upon the case presented by it, as in the case of refusal to allow a bill of review to be filed. In the case of a bill of review, the leave of the court is necessary to entitle the plaintiff to file it, so that the refusal to give the leave is an adjudication of a question properly before the court for its decision. But in this case, the court, in refusing the leave, did not decide a question properly before it, and its decision was, therefore, simply nugatory. Hill mig'ht have filed his bill, in the usual way, notwithstanding that refusal. The rejection of that petition, therefore, was no bar to the present bill, which seeks relief, in part, on the same grounds relied on in that petition.

The bill in this case is called on its face an original bill. It alleges, among other tilings, various objections to the decree arising on the face of the proceedings. It has been contended in argument, that it may be treated as a bill of review, for the purpose of enabling the court to pass upon such of its averments as contain proper matter for such a bill. I do not think we can regard it as a bill of review, in the proper sense, because it was filed without the previous leave of the court, which, according' to our practice, is necessary in all cases of bills- of review. 2 Rob. Pr. 418. But this is a matter of no practical importance. The decree complained of was rendered against the appellants upon the bill taken for confessed, and without an3r subsequent appearance by them. And the Code, ch. 181, sect. S, provides that the court in which there is a judgment by default, or a decree on a bill taken for confessed, *or the judge of. such court in vacation, may, 'on motion, reverse such judgment or decree for any error for which an appellate court might reverse it, but for the next following section, and give such judgment or decree as oug'ht to be given. The next section provides that no appeal, writ of error, or supersedeas shall be allowed by an appellate court or judge for any matter for which a judgment or decree may be reversed or amended on motion by the court which rendered it or the judge thereof, until such motion is made and overruled, in whole or in part.

It was competent, therefore, for the appellants to submit a motion to the circuit court for a reversal and correction of the decree complained of upon any ground on which it might have been reversed and corrected by an appellate court, if the statute had allowed an appeal without such previous application to the circuit court. See Davis v. Commonwealth, 16 Graft. 134.

This statute, it will be observed, contemplates a cheap, convenient and expeditious mode of proceeding, by motion and without pleadings. It allows notice of the motion, which is to be only “reasonable notice,” to be given to the opposite party, or to his agent, or attorney, in fact or at law. It does not contemplate the more formal, expensive, and dilatory proceeding, by bill and regular process. And it contemplates, that if the motion is overruled, wholly or in part, the appeal shall after-wards be taken from the original decree, as it stood originally, if the motion is wholly overruled, or as amended and corrected, if the motion is sustained in part.

The proceeding in the present case, therefore, has not been in strict conformitj’- to this statute. The proceeding is by bill and not by motion, and the appeal is from the decree on this bill, and not from the original decree. But as the bill embraced other grounds which gave the court jurisdiction, no inconvenience or additional expense ^resulted from embracing in it likewise such allegations of error as might have been made the ground of a motion under the statute. And as the record in the original case has been made a part of the bill in this case, so that all the facts are fully before the court, I think we may properly review the action of the court upon this appeal in reference to the alleged errors in the original decree, as well as in reference to the other grounds upon which the bill seeks relief. If we find such errors in the original decree, a reversal and correction of the decree now appealed from, in those particulars, will have the same effect' as a reversal and correction of the original decree. I will proceed, therefore, to consider whether there has been shown to be any error in the original decree for which the appellants would have been entitled to have it reversed or corrected by an appellate court, if the statute had allowed an appeal in the first instance, or if it was now before us on a direct appeal from it. The allegations of error are not anywhere precisely collated, but I shall notice such as seem to be mainly relied upon, as I collect them from the bill, the petition of appeal and the arguments of counsel.

1. It is alleged that the original decree is. erroneous in giving interest to Bowyer and wife on $1,257.37 from January 1, 1851, instead of from May 22, 1854, and in giving interest to Hill and wife on $968.67" from January 1, 1851, to May 22, 1854, the commissioner in his report having already allowed interest to the latter date on both these sums.

These are palpable errors. It appears bj a paper which has been annexed to the record by the clerk, and is stated by him to have been so annexed by consent of counsel, that subsequently to the • date of the decree now appealed from, the counsel for Bowyer and wife and the counsel for Hill and wife directed the clerk to correct these errors by endorsement on any executions that might be issued on *the original decree. The petition of appeal admits that these corrections have been thus made by the counsel, but it is suggested that they are not sufficient in law to bar the femes, in case they should survive their husbands and become thereby entitled to demand the money decreed. This objection cannot be sustained. The mistakes were obvious, and their correction was a matter of course. The counsel for the parties in whose favor the decree was made had full authority to bind their clients by making the corrections. The femes are bound by this act of the counsel as well as their husbands. It being thus apparent to us, by the admission of counsel, that these errors have been properly corrected, we would not give costs to the appellants if we were to correct them by an amendment of the decree on the ground that the correction of them by the counsel is not technically before us. This matter may, therefore, be left to stand as it is.

2. It is alleged as error that, while the appellant Hill is charged with the rents for 1846, 1847 and 1848, he is not credited for the money collected by Bowyer and George P. Hill from Watson, who occupied the land during those years under a contract with Tracey, as shown by the record of the case of Watson v. Tracey.

The commissioner in his report, suggested that the case of Watson v. Tracey should be heard along with Bowyer & wife v. Hill & als., and that whatever sum might be realized in Watson v. Tracey for these rents should be a credit to Hill on the balances due by him as guardian. But the -cases were not heard together. The money ■collected from Watson in Watson v. Tracey was not received until after the decree in Bowyer & wife v. Hill & als., and there was nothing in the latter case to show what was likely to be realized in the former. The court was not bound, in consequence of the suggestion of the, commissioner, to postpone the decree in Bowyer & ux. v. Hill als. until this could be ascertained, or to make provision in the decree for a credit that was wholly contingent. The appellants are entitled to a credit on the decree in favor of Bowyer and wife for the sum of $51.96, as of June 3, 1854, and to a credit on the decree in favor of Hill and wife of $68.05, as of the same date. But the Circuit Court can give them the benefit of these credits by directing them to be endorsed on the executions, on a motion for that purpose.

3. It is alleged as error that the case of Bowyer & ux. v> Hill & als. was heard upon depositions, of the taking of which the appellants had no notice. This objection could not be taken, for the first time, in the appellate court. Dickenson v. Davis & al., 2 Heigh 401; Code, ch. 182, sect. 6. In the absence of objection in the court below, an appellate court would presume that notices to take the depositions were duly given, the contrary not appearing. This objection is, therefore, not avoidable on a proceeding under sect. 5, ch. 181.

4. It is alleged as error that the appellants had no notice of the taking of the accounts by the Commissioner, and that the Commissioner did not make regular adjournments of his proceedings, in conformity with sect. 7, ch. 175 of the Code.

The court directed the Commissioner to give notice of the time and place of taking the accounts by publication in a newspaper, as authorized by sect. 5, ch. 175 of the Code. Such publication, the statute declares, “shall be equivalent to personal service of such notice on the parties.” The statute does not limit the class of cases in which the court may direct notice to be given by publication, and we would virtually repeal the statute if we should allow a party to whom notice had been duly given by such publication, to say that he did not see it, or hear of it, and so did not have notice in point of fact. The *party being duly served with process, and thus apprized of the institution of the suit, I apprehend there can be no doubt of the right of the legislature to provide, that notice of subsequent proceedings in it may, if so directed by the court, be given by publication.

As to the adjournments, it does not appear affirmatively that they were not regular. In the absence of objection on that ground in the court below, an appellate court would presume that they were regular. This objection is, therefore, not available in a proceeding under sect. 5, ch. 181.

5. It is alleged as error that Waite, one of Hill’s securities as guardian, was not served with process.

The decree was rendered against Waite, and its validity cannot be questioned in this collateral proceeding by other parties.

6.It is further alleged as error that the bill was multifarious, because it united in one suit parties and subjects which had no necessary or proper connection with each other.

If this objection had been raised in the case while it was in the Circuit Court, it must have been sustained. But not having been raised there, an appellate court would not reverse the decree on that ground alone.

The bill further claims that the decree in the case of Bowyer & wife v. Hill & als. should be opened, and the appellants let in to make their defence, on the ground that they were prevented from doing so by accident and surprise. These grounds, if sustained, are sufficient to entitle the appellants to relief, unless they are precluded by laches, according to the decisions of this court in Erwin v. Vint, and Callaway v. Alexander, before cited. Two facts are alleged to sustain the averment of accident and surprise:

1. The appellant, Hiram Hill, for whom the other appellants are sureties in his bond as guardian, qualified as ^guardian at January term, 1845, of the county court of Fayette, and was removed from the guardianship, on the motion of his sureties, at June term of the same year. In the copy of the order of removal furnished by the clerk of Fayette to the counsel for the plaintiffs in Bowyer & ux. v. Hill & als., and which was filed as an exhibit in that case, a mistake was made in the year, 1850 being put in the place of 1845, so that Hill was thus made to appear to. have been guardian for five years and five months, when, in point of fact, he was guardian for only five months. The Commissioner accordingly made up an account against him for five years after he had ceased to be guardian, charging him with rents and hires which he never received, and with the proceeds of the sale of slaves which he never sold.

2. It is alleged that the appellant, Hill, who, as well as the other appellants, resided in Fayette county, wrote, soon after the institution of the suit, to Mr. Watson (how Judge Watson), of Albemarle county, where the suit was, to engage his services as counsel in the case; that the other appellants relied on Hill to attend to the defence; that Hill supposed that Mr. Watson was giving proper attention to the case in his behalf; and knowing that he had never received anything, and could not justly be made liable for anything, gave himself no uneasiness about the matter. In consequence of a misapprehension, however, Mr. Watson did not attend to the case as counsel for the appellant Hill, while his partner attended to it as counsel for George P. Hill, whose interest was adverse to that of the appellants, and whom Mr. Watson supposed to be the same Hill who had written to him. The consequence was, that- the appellants were wholly undefended by counsel.

There is no proof of these allegations. The letter to Mr. Watson is not produced. His deposition has not been taken. The only thing relied on to prove that such a letter *was written, is a letter from Mr. Watson, written after the decree had been rendered in Bowyer & ux. v. Hill & als. But even if we could accept that as evidence that such a letter was written to Mr. Watson and received, and that he failed to defend the appellants in consequence of the misapprehension alleged in the bill, there is no evidence of any sort that Hill’s letter was replied to, or that he had any sufficient reason to believe that Mr. Watson had received it, and would serve him as counsel.

The whole of the allegations on this head should, therefore, be laid out of the case, as being entirely unsupported by evidence. But if we take them as all true, it would be difficult to imagine a case of grosser laches than this. The appellants were all duly served with process. Hill contented himself with writing a letter to a lawyer to engage his services, while the other appellants did nothing. Hill had no further communication with the lawyer. If he ever heard from him at all, which he does not allege, he gave him no information as to the defence; he paid no fee; made no enquiry as to the progress of the case. How could he suppose that counsel, if willing to work for nothing, could defend him without knowing anything of the facts? When parties are admonished of the institution of a suit, by the service of process, it is their duty to take care of their interests ; if they neglect this duty, it is at their peril. The allegation that Hill gave himself no uneasiness, because he knew that he could not justly be made liable for anything, if proved, would not alter the case. He knew, .by the service of the process upon-himself and his securities, that a claim was made against him; and he must have known that some ground, just or unjust, true or false, would be shown to sustain it. How was counsel or the court to know the facts, so as to protect him against an unjust claim, if he would furnish no evidence • and no information? The truth, is, however, that *he was not justified by the facts in feeling the indifference he professes to have felt. He qualified as guardian at January term, 1845. It does not appear who hired out the slaves and rented out the land for that 'year. If the former guardian, he ought to have turned over the bonds to Hill, and it must be presumed that he did so. What did he do with these bonds, when he ceased to be guardian? What did he do with the slaves? Though they were hired out, they were legally in his charge and possession. What did he do with the property of his wards, of which he returned an inventory to the court at April term? It is a remarkable fact in this case, that Hill, who was clerk of the court, returned an inventory, as required by law, of the property of his wards that had come to his hands, which the court directed to be recorded, but that it cannot be found either on record or among the files of the office.

Hill undoubtedly had a right to suppose that the clerk would make true copies from the records, and that the papers would, therefore, show that he was guardian for only five months. If he had suffered injury from this negligence of the clerk in giving a wrong date to the order of removal, without being guilty of gross negligence himself, he would have had a strong case for relief. But if he had given the least attention to his own interests; if he had obtained a copy of the bill, or if he had furnished counsel with the merest outline of his defence, he would have suffered no injury from this blunder of the clerk.

The cases in which this court has held parties responsible for the consequences of laches in making their defence to legal proceedings against them, are too numerous and familiar to require citation. They are generally cases in which relief ‘has been sought in equity against judgments at law. But in Callaway v. Alexander, already cited, the same principle was held to be applicable to the case of a bill to open a decree by default on the ground of accident "'and surprise. That case bears a strong resemblance to this in the facts, and is a conclusive authority for holding the appellants bound by their laches.

The appellants have certainly been decreed to pay more than they were justly liable for. But we cannot relieve them on this ground from the consequences of their gross and inexcusable laches. To do so, would be to hold out a’ direct encouragement to such conduct. Diligence and vigilance would cease to be the rule, and we should destroy all certainty in the results of judicial proceedings. There have been many cases of great hardship in which this court has refused to give relief on the ground of laches. There was never a harder case, for instance, than Meem v. Rucker, 10 Gratt. 506. But as the court said in that case, “the inevitable answer to the argument [of hardship] is, that the hardship complained of is not to be traced to the administration of justice, but to the party’s own folly and gross laches.”

The bill makes no charge of fraud against Bowyer and wife and Hill and wife, or any of them. It does not allege that they knew that the copy of the order of removal bore a wrong date, or that they knew how long Hill continued to be guardian; and there is no evidence that they did so. Hill and wife, who were non-residents, did not answer the bill, but Bowyer and wife say in their answer, that they did not know that the order had been incorrectly copied, and Mrs. Bowyer, answering in her separate behalf, says she does not know when Hill ceased to be her guardian.

It is contended, however, that if the parties were not guilty of fraud in obtaining the decree, it w?s a fraud in them to insist upon it after its injustice had been established. I do not think that we can reverse the decree on this ground. No authority has been cited to sustain it. It would have been applicable in Meem v. Rucker, and in *every other case of hardship, in which this court has refused to give relief on the ground of laches.

I am of opinion to affirm the decree.

MONCURE}, P., concurred in the opinion of Joynes, J.

Decree affirmed.  