
    *Ewing’s Adm’r & als., v. Ferguson’s Adm’r & als.
    September Term, 1880,
    Staunton.
    1. Surety — Action agruinst Heirs of. — Parties having obtained decrees against their debtor M in a suit pending in the county court, and he having become bankrupt, may bring another suit in the circuit court against the administrator and heirs of his surety K, to subject the real estate of the surety to satisfy their debts.
    2. Samo — -Same—Nature of Bill. — Though the bill in such case only sets up their claims, and seeks payment of them, and does not purport to be a creditor’s bill, it is to be so treated, and other creditors of K may come in by petition and be made parties plaintiffs in the cause, and there may be a decree for account of debts in the case.
    3. Same — Same—Amended Bill — Failure of All off Original Plaintiffs to Unite in— Effect. — -The bill having been dismissed on demurrer, but leave given to lile an amended bill, the amended bill is not a departure from the original bill, because some ot the original plaintiffs do not unite in it.
    4. Same-Same — Same—Effect of Amendment. — -The amended bill being filed in the name of some of the original parties and of the creditors who had come in by petition, and only setting out more fully the nature of their claims and the character of the bill as a creditor's bill, is not a departure from the original bill, but is a valid amended bill.
    5. Neg-otiaTble Notes- — Uimitalion of Action —Effect of Decree. — One of the debts set up by one of the petitioning creditors was evidence by a negotiable note and to this debt the statute of limitations was pleaded. Held: The statute of limitations ceased to run against all debts of the debtor from the date of the decree for an account; and the note not having been barred at that date, the statute does not apply to it.
    6. Infants — Guardian ad Uitem — Failure to File Answer.  — The heirs of K being infants, though their* guardian was a party and answered,, they were entitled to be defended by a guardian ad litem, and although one was appointed for them, and there ’‘was a paper purporting to bean answer found among the papers of the cause, yet as it did not appear that it had been filed,, it was error to decree the sale of the infant’s land, without an answer filed by guardian ad litem.
    
    
      7. Surety — Dufy to Exhaust Principal’s Property before Proceeding agulnst.-The real estate of K had been purchased by him from M, the principal debtor in the claims set up against K’s estate, and there were some grounds for supposing that at the time of the sale and conveyance to K, M had other unencumbered land which he afterwards sold. It was error to decree the sale of K’s land to pay the debts of M, until a full en-quiry was had whether there was not real estate held by M at the time of his sale to K which was primarily liable to pay these debts for which K was liable as M’s surety.
    In a cause depending in the circuit court of Botetourt, brought by Kyle’s guardian v. Kyle’s heirs, for the division of the estate of Robert Kyle, deceased, Fletcher H. Mays was appointed a commissioner to sell a house and lot and collect the puchase money; and the sureties on his bond given under this decree requiring him to give other security for their relief, Daniel P. Ewing became his surety in the new bond executed by him. Mays sold the house and lot, and paid over the first and second installments of the purchase money, to the parties entitled to it; but failed to pay over the third installment; and on the 8th of November, 1866, the court made a decree directing Mays to pay to each of the heirs of Robert Kyle, deceased, the specific sum which a commissioner had reported as due to each of them. Of these there were ten, and the amounts coming to each ranged from $30.46 to $163.67.
    In p'ebruary, 1873, Lucy Ferguson, Isabella Rowland, Elgeane St. Clair, Joseph F. Robinson, Lucian B. Robinson and Elizabeth Robinson, some of the said heirs of Robert Kyle, deceased, instituted their suit in equity in the county court of Botetourt against F. H. Mays, James M. Figgatt, assignee in bankruptcy of *said F. H. Mays, Mollie J. Bayne (who was formerly Mollie J. Ewing), widow of Ewing, deceased, in her own right and as a former ad-ministratrix of said Daniel P. Ewing, deceased; Henry C. Douthat, late sheriff of Bote-tourt, and as such administrator de bonis non of said Daniel P. Ewing, Cora Bell Ewing, Anna James Ewing, the last two infant children of Daniel P.' Ewing, Charles Bayne, guardian for the said infant children, and the other heirs of Robert Kyle, . deceased. In their, bill they set out the fact of Mays’ appointment as commissioner, and Daniel Ewing’s suretyship; Mays’ failure to pay over the third installment of the purchase money of the house and lot, and the decree against Mays, in favor of the plaintiffs; and they charge that they had received no portion of the said money, but that the whole of the several amounts so decreed to be paid to the plaintiffs by said Mays remained unpaid. They set out the suretyship of Daniel P. Ewing; and that since the said decree of the 8th of November 1866. Mays had been declared a bankrupt,. and James H. Figgatt had been appointed his assignee. That Daniel P. Ewing died in 1862, and that his widow qualified as his administratrix; that in 1868 she settled her administration account, from which it appeared the whole personal estate had been administered; that she had married Charles Bayne, by which her authority as administratrix had terminated, and the estate was committed to Henry C. Douthat the sheriff of Botetourt, but that he had received no assets.
    They further state, that Daniel P. Ewing died in the possession of a large and valuable estate, known as “Oakland,” in the county of Botetourt, which he had purchased but a short time before his death from F. H. Mays, for $10,000, the whole of the purchase money for which was fully paid — the larger part by Ewing in his lifetime, and the remainder by his administratrix; *that the deed was not made for the said real estate until after his death, and bears date the 7th of May, 1863, by which Mays
    and wife conveyed the land to Cora Bell Ewing and Anna James Ewing, infant heirs of said Daniel P. Ewing.
    The prayer of the bill is, that the court will grant the plaintiffs a decree against the estate of Daniel P. Ewing for their respective debts, as appears of record against the said F. H. Mays, for whom the said Daniel P. Ewing was security as aforesaid; and if the personal estate has been exhausted in the payment of debts, that the said real estate, or a portion of it, may be sold or rented, and that the proceeds arising from such sale or renting may be applied to the plaintiff’s debts.
    On the 12th of May, 1873, Mollie J. Bayne, as late administratrix of Daniel P. Ewing, and Charles.Bayne, in his own right andas guardian of Cora Bell Ewing and Anna J. Ewing, appeared and filed their demurrer and answer to the bill. They set out several causes of demurrer, 1st. To the jurisdiction of the court to try and decide this cause; 2d; That the case was in the circuit court of Botetourt, where all the rights of the parties had been passed upon; 3d. That the plaintiffs have a clear legal remedy in the law court, &c., &c. The answer need not be stated. It was sworn to by Charles Bayne on 'the 8th of May, 1873.
    On the 12th of May, the same day on which the answer was filed, Ellett & Drew-ry and H. & I. Guggenheimer presented their petitions to the court, claiming to be creditors of Daniel P. Ewing, and asking to be made parties plaintiffs in the cause, and that they might be allowed to participate in the results that may be secured therein on the usual terms; and that proper enquiry may be made of all outstanding unsatisfied debts of the said estate, &c. And the petitions were allowed to be filed.
    *It appears that the debt of Ellett .& Drewry was evidenced by a negotiable note dated January 17th, 1861, payable in four months, made by F. H. Mays and endorsed by Daniel P. Ewing, which had been protested for non-payment, and due notice given to the parties. That of H. & I. Gug-genheimer was a judgment against Daniel P. Ewing recovered in August, 1861.
    Douthat also demurred to and answered the bill. In his answer he says no assets of the estate had come into his hands; and he had been informed that Mrs. Ewing, the administratrix, had fully administered the personal effects of Daniel P. Ewing, and had settled her administration account.
    On the 17th of July, 1873., B. M. Allen was appointed guardian of the infant defendants Cora Bell Ewing and Anna J. Ewing, and an order of account was made.
    In August, 1873, the cause was transferred by operation of law, to the circuit court of Botetourt county; and on the 12th of March, 1874, came on to be heard on the demurrer of the defendants to the bill; when the court sustained the demurrer; and on motion of the plaintiffs they were allowed to file an amended bill.
    At the May rules, 1874, an amended and supplemental bill was filed. The plaintiffs in this bill are Ellett & Drewry, H. & I. Guggenheimer, William B. Simmons administrator of Eucy Ferguson, whose death had been suggested in the previous proceedings, and Isabella Rowland, and the defendants were the same as in the former bill, except those of the heirs of Robert Kyle who were made defendants in that bill but were omitted in this. They refer to the original bill and its object, and the petitions of Ellett & Drewry and H. & I. Guggenheimer, and their being admitted parties plaintiffs, and the claims they set up in their petitions, and they refer to said petitions for a particular *description of their claims, and ask that the same may be read as a part of 'this bill. They aver that Mays at the time of the instituting the original bill was, and is now insolvent, and any proceedings against him would be unavailing. They set out the administration on the estate of Daniel P. Ewing; the payment of the balance due on the land called Oakland by. the adminis-tratrix; and its conveyance to his children, by which the personal estate of Ewing was exhausted. They aver that the object and purport of their bill aforesaid and petition was to assert their claims to payment of their respective demands out of the real estate in the bill mentioned; that they have nothing to look to for payment of their demands except the said lands; that they can obtain no redress at law, and are wholly without redress save in a court of equity. They are advised that the real estate of every decedent is assets expressly by statute for the pro rata payment of all just debts of such decedent; they therefore pray that proper enquiry be directed as to all outstanding and unsatisfied demands against the estate of D. P. Ewing, deceased, and that the same be heard with the proofs, and so far as ascertained to be just that the said land be charged with the same, and that your orators’ proceedings be treated as a creditor’s bill for the settlement of D. P. Ewing’s estate; that a guardian ad litem be appointed for the defendants Cora Bell Ewing and Anna James Ewing, the heirs; at-law of Daniel P. Ewing, who are infants'. And that the court will direct payments of plaintiffs’ respective debts, and to that end charge the same on the lands aforesaid; and for general relief.
    At the July term of the court, the defendants moved the court to strike the amended bill from the file, because the same is improperly drawn and filed, and is a departure from the case stated, and the relief sought on the original bill. Whereupon the court *being of opinion that said amended bill is proper, the same is allowed to be filed, and leave given to the defendants to file their answer.
    Bayne and wife answered the bill, and insisted that as to the debts claimed by the plaintiffs as Kyle’s heirs, at the time of that decree F. H. Mays owned a large property both real and personal, out of which said decree might have been easily made, and on which the same was a lien; and if they failed to make their money it was through their own culpable negligence. Mrs. Bayne says that during her administration on the estate of said Daniel P. Ewing, by advertisement and enquiry she sought to ascertain all the debts due from said Daniel P.'Ewing at the time of his death, and was .anxious and ready to pay the same having the means of payment, yet none of the debts now set up by complainants’ amended bill were ever brought to her notice in any manner whatsoever, nor was she aware of their existence. As to the note set up by Ellett & Drewry she knows nothing of its origin or justness as a claim against her husband’s estate; that it was never brought to her attention until it was set up in this suit; and she insists it is a stale demand which under the circumstances a court of equity will presume to have been paid; and especially after having slept upon their rights for more than ten years, and after having allowed the principal debtor Mays to become bankrupt; and she relies upon such presumption of payment, laches and staleness of the demand as complete bar to the recovery thereof.
    E. H. Mays also answered the bill. As to the claim of Ellett & Drewry he relies upon the statute of limitations. He says that at the time of the sale of the land to Ewing and the conveyance to his heirs, respondent was the owner of a large real estate that was in no way encumbered; some of these lands he sold and ^conveyed years after the sale to Ewing, and when he went into bankruptcy he surrendered several tracts or parcels of land in his schedules in bankruptcy, that were after-wards sold by his assignee.
    There were several reports of debts due by D. P. Ewing, and among them all the debts claimed by the plaintiffs; though that of Ellett & Drewry was excepted to as barred by the statute of limitations, and that of H. & I. Guggenheimer as has having been paid; and it was objected that the decree directing the account should have directed the commissioner to enquire whether Mays the principal debtor had not lands on which the debts set up were a lien. But the exceptions were overruled; and it appearing that all of the debts were a surety for F. H. Mayes, except that of Guggenheimer, the court directed an enquiry into the property which went into the hands of the assignee in bankruptcy, to see whether there was anything in his hands which might be applied to the payment of these debts. It appeared from the account settled in the bankrupt court all that fund except $248.08 had been consumed in payments made by the assignee.
    The cause came on to be heard on the 1st of November, 1876, when the court held that the debts reported, specifying the amount due to each creditor, were due and should be paid; but postponed the enforcement of their payment until an account of the fund in the hands of the assignee in bankruptcy was taken; and that having been taken with the result above mentioned; and the commissioner having reported that the rents of the land would not pay the debts in five years, the cause came on again to be heard on the 27th of April, 1878, when the court decreed, that unless the defendants, or some one of them, within ninety days from this date, pay the subsisting liabilities of D. P. Ewing’s estate as determined by the decree of the 1st *of November. 1876, subject to a credit for the sum of $248.08, upon the debt reported to be due to the assignee, W. A. Glasgow, who was. appointed a commissioner for the purpose, do after advertising, &c., proceed to sell at public action the lands in the bill mentioned of which D. P. Ewing died seized, &c., &c. And thereupon Cora Bell Ewing and Anna J. Ewing infants by their next friend Charles Bayne, and H. C. Douthat, administrator, &c., applied to a judge of this court for an appeal, and super-sedeas; which was awarded. For other matters, see the opinion of Anderson, J.
    George W. Hansbrough and Mays & Mays, for the appellants.
    Figgatt.and William A. Glosgow. for the-appellees.
    
      
       Distinguished in Piedmont & A. L. Ins. Co. v. Maury et al., 75 Va. 508.
    
    
      
       Equity — -Creditor’s Bill. — A bill setting up complainant’s claim only, and not purporting to be a creditor’s bill may, nevertheless, be treated as such, and creditors may come in by petition as plaintiff, and a decree of accounts of debts may be entered which operates a suspension of all other suits of creditors, who must prove their debts under said decree. Hurn v. Keller, 79 Va. 418, citing principal case; Rice v. Hartman, 84 Va. 253, and cases cited; Paxton v. Rich, 85 Va. 378, and cases cited; 4 Min. Inst. (2nd Kd.) 1247, 1248.
    
    
      
       Same — Amended Bill — Effect.—See 4 Min. Inst. (2nd Kd.) 1262 et .scq.
      
    
    
      
       Limitation.- — -See Jackson v. Hull, 21 W. Va. 613; Harvey v. Steptoe, 17 Gratt 289; Houck v. Dunham, 92 Va. 214; Stephenson v. Taveners, 9 Gratt. 398; Craufurd v. Smith, 93 Va. 630.
    
    
      
       Guardian Ad I, i t c111 — Scope of Authority. — As to the powers of guardian ad litem of infant defendants, see Daingerfield v. Smith, 83 Va. 91.
      The principal case is cited, to sustain the proposition that it is customary to appoint the husband guardian ad litem to an infant married woman, in Alexander v. Davis, 42 W. Va. 469.
    
    
      
       Equity—Liability of Surety. — It is error to decree the sale of the surety’s land before inquiry as to whether the principal has not land first liable. Dillard v. Krise, 86 Va. 410, citing principal case.
    
   ANDERSON, J.,

delivered the opinion of the court.

The plaintiffs in the original bill, had obtained a decree against Fletcher H. Mays in the suit of Kyle, guardian, v. Kyle’s heirs, in the circuit court of Botetourt county, for certain sums of money due them severally, payable out of the proceeds of certain real estate, which said Mays,’as special commissioner, had sold, and the proceeds of sale collected, under a decree of the court in said cause, which he had failed to pay over to them; for the payment of which Daniel P. Ewing was bound as his surety, in the bond which he gave as such special commissioner; and they filed their bill in chancery, in the county court of Botetourt, against the said Mays, and his assignee in bankruptcy (alleging that he was a bankrupt), and the heirs and representatives of Daniel P. Ewing, who was dead, and others, seeking the recovery of their several judgments, and that the real estate of which the said *Daniel P. Ewing died seized, might be subjected to their payment; if the court should be satisfied that there were not personal assets, as they virtually alleged, out of which they could be satisfied.

This court is of opinion that this suit, and the suit aforesaid of Kyle, guardian, v. Kyle’s heirs, were for different and distinct objects, and that the plaintiffs were not restricted, in seeking their relief, to the latter; if they could have proceeded in that suit. And having brought their suit in the county court for that purpose, which had jurisdiction of the case, the court is further of opinion, that it was competent for other creditors of Ewing, to come in by petition, and ask to be made parties plaintiff in said cause, on the usual terms, and to be allowed to participate in the results thereof; and that proper enquiry be made for all outstanding, unsatisfied debts of decedent’s estate, and of the real and personal assets, and that their debts may be satisfied out of the same.

The court accordingly allowed Ellett & Drewry, and H. & I. Guggenheimer, to file their several petitions for that purpose, which were filed on the 12th of May, 1873. On the 15th day of July following, H. C. Douthat, the administrator de bonis non of Daniel P. Ewing, deceased, filed his demurrer and answer to the bill of plaintiffs, and on the same day B. M. Allen was appointed guardian ad litem for Cora Bell Ewing, and Anna James Ewing, infant heirs of D. P. Ewing, deceased; and the cause was referred to the master to take an account of all liens on the real estate of Daniel P. Ewing, deceased; also the yearly rental value of said estate, and of any other matters deemed pertinent by himself, or required by either party; and to report to the next term of the court. And the cause was removed to the circuit court of said county. The term “all liens,” in the said *decretal order, must be taken to mean all debts, which may-bind the real estate.

Lucy Ferguson, one of the plaintiffs, having died since the filing of the will, the cause was revived in the name, of W. B. •Simmons her administrator.

On the 24th of March, 1874, the cause was heard by the circuit court, on the demurrer to the bill, which the court sustained; and gave the plaintiffs leave to amend. And at the May rules, 1874, an amended bill was filed in the names of Ellett & Drewry, partners, and H. & I. Guggenheimer, partners, W. B. Simmons, administrator of Lucy Ferguson, deceased, and Isabella Rowland.

It is contended by appellants that the paper purporting to be an amended bill is not an amended bill, because it is a departure from the original bill, and makes a new case, both in respect of parties, and in the relief sought. And that the court erred when it sustained the demurrer, in giving leave to amend, instead of dismissing the plaintiffs’ bill; and that the amended bill should have been struck from the file, on motion. This we think comprises in substance the position of the appellees.

The court is of opinion, that although the original bill was not filed as a creditor’s bill, the county court did not err in the order of 12th of May, 1873, allowing Ellett & Drew-ry, and H. & I. Guggenheimer, on their motion, to file their petitions, and to be made co-plaintiffs with the complainants: and on the 15th of July following, in the reference to a master, to take an account of all liens on the real estate of Daniel P. Ewing, deceased. In Stephenson v. Taverners, 9 Gratt. 398, “A creditor (it was held), has a right to bring a suit for his claim; but he ought to bring it for himself and 'all other creditors.” The plaintiffs, upon that authority had a right to bring the suit for their claims, *but they ought to have brought it not only for themselves,, but for all other creditors. And not having done so, the other creditors had a right, on petition to come in and be made co-plaintiffs with them. And in the same case, it is held, when in a suit for the administration of assets, (which is this case;-for that purpose both the personal representative, and the heirs, were made defendants); a- decree is made for an account of outstanding claims against the estate, it ■ operates a suspension of all other pending suits of creditors; who must come in under the decree, which is considered a decree in favor of all the creditors.” So that if it comes to the knowledge of the court that there are other claims against the estate outstanding, it would be the duty of the court to decree an account, and all creditors must come in; and such decree even suspends all other pending suits of creditors, and they must come in and prove their claims under such decree, though they have a suit of their own pending for their recovery. In Harvey’s adm’r v. Steptoe’s adm’r, 17 Gratt. 289, it was held that where there was a decree directing a commissioner to take an account of all outstanding and unsatisfied debts, the court took upon itself the administration of the assets, and would have restrained parties afterwards from proceeding by separate suits. In the recent case of Kent’s adm’r v. Cloyd’s adm’r, 30 Gratt. 555, the same doctrine was enunciated, and it was held, that “the same result follows when the heir or devisee is made a party with a view to a sale of the real estate.”

From the time the decree for an account was rendered in this case, it was no longer a separate creditor’s suit, but was a general creditor’s suit; and the petitioners, even from the date of the order of the court making them co-complainants with the plaintiffs, were as essentially plaintiffs as if their names had been ^inserted in the original bill as plaintiffs, when it was filed. But if this were not so, “it is the settled practice of courts of equity as was held by this court in Belton v. Apper-son, 26 Graft. 207, Judge Staples delivering the opinion of the court, to allow an amendment of the bill by the introduction of new parties, plaintiffs or defendants, were necessary to the ends of justice, or to prevent further litigation. As a general rule this is not a matter of course, but is discretionary with the court.” If it was right in the circuit court to sustain the demurrer, it was surely a proper case for leave to amend.

But this court does not perceive any good grounds for the demurrer, in the reasons or causes assigned by the demurrant. To all of them which have not been already sufficiently answered except the plea of the statute of limitations, we think the statute is an answer. It is found in ch. 175, p. 1126 of the Code, § 2, and is as follows: “A creditor before obtaining a judgment or decree for his claim, may institute any suit to avoid a gift, conveyance, assignment or transfer of, or charge upon, the estate of his debtor, which he might institute after obtaining such judgment or decree; and he may in such suit have all the relief in respect to said estate which he would be entitled to after obtaining a judgment or decree for the claim winch he may be entitled to recover.”

And now as to the bar by the statute of limitations. The right of action could not have accrued against Ewing before the date of his bond; which is the 26th of May, 1858. And if the filing of the amended bill, which was at the May rules, 1874, could be regarded as the commencement of the suit, the estate of D. P. Ewing would not be protected by the statute. But by the express authority of Harvey’s adm’r v. Steotoe’s adm’r, supra 305, the statute of limitation ceased to *run against them from the date of the decree for an account, to-wit. the 15th of July, 1873.

We think it is by no means clear, that the plaintiffs, including the petitioners, could not have maintained their case upon the original bill; but waiving that, we do not think that the amended bill is a departure from the original bill, and makes a new case in respect of parties, which has already been sufficiently shown as to adding parties, and we think it did not make a new case by dropping two of the plaintiffs. If they had been paid as was suggested at the bar, or if they had concluded to withdraw from the suit for any cause, they had a right to do so, with the assent or acquiescence of their co-plaintiffs. And it does not appear that the defendants were prejudiced thereby; and there was no such connection between their claims and the remaining plaintiffs as was incompatible with their severence. But by withdrawing their claims from the administration of the fund by the court, they were excluded thereafter from a participation in it; which could not prejudice the personal representative or heirs of Daniel Ewing.

The court is also of opinion, that whilst the amended bill amplifies the statement of the case, and presents it with greater precision and fullness, and with more directness, and with some averments, which were not expressed in the original bill, it does not make a new case from thal which was made by the original bill and the petitions. The conclusion is. that the court did not err, in overruling the defendants’ motion to strike it from the file.

The claim of Ellett & Drewry was not barred by the lapse of five years after the 1st of January, 1869. The institution of their proceeding if not to be regarded as of the date of the filing of their petitions, would date, *as has already been shown, from the decree directing an account — which was July. 1873.

The claim of Ellett & Drewry, though “a mere legal demand, and never asserted and established by a judgment in a court of law,” we have shown was cognizable in a court of equity, to prevent a transfer or charge upon his debtor’s estafe, and to obtain all the relief he would be entitled to, after obtaining a judgment or decree.

The court is further of opinion, that, receiving the testimony of Riddlebarger, the evidence falls short of proving that H. & I. Guggenheimer’s claim has been satisfied.

But we have more doubt about the third assignment of error in the petition of appellants, that infants were not properly represented before the court by guardian ad li-tem, when the decree was made for the sale of their land. It appears from Ihe record that Charles Bayne, their statutory guardian, was in that capacity before the court, and his joint answer with others to the original bill, in his own right, and as guardian of Cora Bell Ewing, and Anna J. Ewing, infant heirs of Daniel P. Ewing, deceased, was filed by leave of the court on the 12th of May, 1873. the same day that the petitions of the creditors before mentioned, were filed. His answer was sworn to four days before — i. e., the 8th of May — and consequently before their claims were asserted; and if does not appear, that he had ever heard of them at the time his answer was prepared.

The joint answer of Charles Bayne and Mollie his wife to the amended bill is filed, but not in his character as guardian of the infant heirs. A guardian ad litem was appointed, as we have seen, for the infant heirs in the original bill, on the 15th of July. 1873. It does not appear from the printed record, that they *answered by him. But the appellees .produced a copy of their answer by their said guardian ad litem, certified by the clerk as a true copy of an answer found among the papers in' said cause, and which was among the files when the transcript was made by him to be presented to this court, and he presumes the 'same was filed at the date of the order appointing the guardian ad litem. This paper was presented the day after the argument was commenced, by one of the appellees’ counsel, who was not present on the first day of the argument, and in whose custody it was, and the appellants’ counsel objected to its being read by the court as a part of the record. The printed document relied on by the appellants’ counsel, is not certified by the clerk to be a full transcript of the record, but of only so much' of it “as was desired by defendants, counsel.”

The court has deemed it proper under the circumstances/ to look into said paper, but there is nothing upon its face or in the record as exhibited to show that it. was ever regularly filed, further than merely to put it with the papers; and when that was done, does not appear, except by the supposition of the clerk. It does not appear that it was ever brought to the notice of the court, and not being referred to by any of the decrees, it does not appear that it was considered by the court, or that either of the infant heirs was before it, by her guardian ad litem, either upon the original, or amended bills. They were the parties most largely interested in the decision, and though their answering by guardian ad litem, may be a mere matter of form, the uniform practice in courts of chancery has strictly required it. An infant cannot appear by attorney. When the statutory guardian of the infant is before the court and has answered, and the record shows that his rights have been carefully investigated and maintained, there might be some relaxation of the rule.

*In this case the court is of opinion, that the record does not show satisfactorily, that the rights of those infant heirs have been so investigated and protected. Sundry exceptions were made by the counsel of Bayne and wife and the heirs of Ewing to the report of Commissioner God-win, filed March 1st, 1875. In the third exception, the exceptant states, that the answers filed distinctly state that Mr. Mays had real estate at the time of the rendition .of the decrees and judgments set up, amply sufficient to satisfy them, and it would seem to be -grossly inequitable to proceed upon the patrimony of the infant children of W. P.' Ewing, who was a mere surety, “until the property of the principal debtor E. H. Mays, is exhausted.” It is evident that F. H. Mays was the owner of numerous tracts of land, and large personal property, which he says in his answer, was unincumbered, which were ample to satisfy the decrees and judgments in this suit. The answer of the as-signee affirms that there were judgment liens before the war more than sufficient to consume all the assets of the estate. But those judgment liens don’t attach to the personal oroperty. He says these judgments have been regularly reported to the bankrupt court, and he presumes that the whole fund will be applied to them. The record of that court is not before us, and we cannot know what was done by it. But it appears that F. H. Mays sold one of his tracts of land to Henry Ripse for $5,000 — in 1863 or ’63, which he. conveyed, to him in 1865, which may be primarily liable for these decrees and judgments, before the land he sold to W. P. Ewing in 1860, and conveyed to his heirs at law in 1863. It does not appear that any satisfactory inquiry has been directed or made into that matter, though it was virtually brought to the attention of the court, by the exception of the counsel of Bayne and wife and the heirs of Ewing, to the ^report of the commissioner before referred to. Such enquiry may avail nothing for the infant heirs of Ewing upon investigation. But such would be the hardship and injustice of throwing this burden upon their inheritance as shown by the record of this case, if it appears probable, that others may be primarily liable in equity, there should be a thorough and searching en- | quiry made, before the burden is thrown | upon them. And it not appearing that they have been regularly before the court and made their defence by guardian ad litem, the case must go back, that they may appear and answer by guardian ad litem, and that thorough enquiry may be made as to the matters referred to; and they will be allowed to make any other defences which may be deemed proper, and equitable. The court is of opinion for the foregoing reasons to reverse the decree, and remand the cause to the circuit court of Botetourt.

The decree was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decrees aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in proceeding to decree against the infant heirs of Daniel P. Ewing, deceased, without requiring an answer from the guardian ad litem of said infants, if not appearing by the record that any such answer was in fact filed. The said circuit court ought also to have caused an en-quiry to be made by one of its commissioners, whether any and what real estate of F. H. Mays was and is subject to the lien of judgments recovered against him by the parties to this suit, or either of them, and especially whether the tract of *land conveyed by him to Henry Lipse is not primarily liable to such liens. It is, therefore, decreed and ordered, that for the errors aforesaid the decrees appealed from be reversed and annulled, and that the ap-pellees pa3r to the appellants, the heirs of Daniel P. Ewing, deceased, their costs by them expended in the prosecution of their appeal aforesaid here.

And the cause is remanded to the said circuit court, with instructions to have a proper answer filed in behalf of said heirs, if they have not retained their majority, or to require them to answer if they have attained their majority, and also to have proper enquiries made with respect to any real estate owned by said Mays, liable to the lien of the judgments aforesaid, and to take further proceedings in conformity with this decree and the opinion of this court.

All of which, on motion of the appellees by their counsel, is ordered to be forthwith certified to the said circuit court of Bote-tourt county.

Decree reversed.  