
    Pitts, Executor of Rowzee, v. Tidwell.
    Febry., 1812.
    1. Injunction — Dissolution—Appeal — Statute. — Under the 3d section of the act of January 20th, 1804, con cernin g the proceedings in Courts of Chancery, (Revised Code, 2d vol. p. 29.) an appeal from an order dissolving an injunction, could not be taken, but only from the dismission of the bill.
    But see the act of January 20th, 1810, acts of 1809, ch. llth, sect. 2d.
    2. Appellate Practice — Dismissal of Bill by Complainant — Effect.—It is not competent to a complainant to dismiss his own bill, and then object, in an appellate Court, that the prayer thereof has not been decreed in his favour.
    3. Injunction — Dissolution—When Bill Stands Dismissed —Presumption in Appellate Court. — Where an in-j unction is wholly dissolved in a County or Corporation Court, the bill is not to stand dismissed, until two succeeding Courts have been held thereafter in such County or Corporation; and the appellate Court will not presume, from length of time, that two such Courts were held; but this circumstance must explicity appear in the transcript of the record.
    4. Same — Same— Same. — Quaere. If it do explicitly appear, that two such Courts were held; and it do not appear that at or before the second court, any cause was shown against the dismission of the bill; can the clerk’s neglecting to enter the dismission have the effect of keeping the cause on the docket?
    Thomas Pitts, executor of Ralph Rowzee, deceased, having brought an action of debt in the County *Court of West-moreland, and obtained a judgment against Reuben Tidwell, upon a bond for 341. 10s. lid., executed to the said Rowzee In his life time, a bill was filed on the chancery side of that Court, and injunction granted, to stay proceedings on the said judgment. The equity stated was, that Rowzee had been guardian of the complainant, from the time of his being very little more than 14 years of age, until he attained the age of 21 years; shortly after which the said Rowzee, who was uncle to the complainant, taking advantage of the influence he had over him, in consequence of having the entire control of his person and property so many years, had induced him to enter into a settlement of the guardianship account, and, (through his ignorance of the nature of accounts, of the annual profits of his estate, and of the disbursements which had been made for him by the said guardian,) had persuaded him to execute the bond aforesaid, for a pretended balance due from him; “he, the said Ralph, stating, that he never intended to demand any thing of the complainant, but that his only object was to have the account closed.”
    The merits of the case need not be further reported; being sufficiently set forth in the opinion of Judge Fleming.
    The County Court, on considering the bill, amended bill, answer, amended answer, and exhibits, at February term, 1806, ordered the injunction to be dissolved, “and that the defendant recover of the complainant his costs,” &c. ; from which decree the defendant prayed an appeal to the Superior Court of Chancery for the Williamsburg district. “And at another day, to wit, at. a Court of quarterly session continued and held for Westmoreland •County, the 30th day of October, 1806, came the complainant and dismissed his bill, and prayed an appeal to the Superior Court of Chancery for the Williamsburg district.”
    The chancellor (Tyler) was of opinion that, instead of the County Court’s dissolving the injunction, it should *have directed an account to be taken of the said Ralph Rowzee, during the whole period he acted as guardian to the appellant, with any other accounts wh5ch may since have subsisted between them.” He therefore reversed the decree, and ordered the cause to be remanded to the said County Court, for that Court to direct the accounts aforesaid, to be taken; giving leave to the parties to take further testimony as they, or either of them, may choose.
    Prom this decree, Pitts, executor of Rowzee, appealed.
    
      
      See monographic note on "Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
    
      
      See monographic note on “Appeal and Error” appended to Sill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
   Saturday, February 22d, 1812, the following was pronounced as the opinion of this «Court.

“The Court is of opinion, that the first appeal taken in this case, being from an order dissolving an injunction; and it neither appearing that two succeeding ■courts had been held thereafter, in the said county; (even prior to the time when the second appeal was prayed;) nor that the clerk had entered a dismission of the bill, pursuant to the 3d section of the act of January, 1804, entitled “An act concerning the proceedings in Courts of Chancery, and for other purposes;” (one, or both, of which were necessary to make the decree of dissolution final;) the said order was not of a character to authorize an appeal to the Superior Court of Chancery. And, as to the appeal prayed upon the dismission of the bill, by the appellee, in October, 1806, the Court is further of opinion, that it is not competent to a party to dismiss his bill, and then object in an appellate Court, that the prayer thereof has not been decreed in his favour.

“The decree of the Superior Court of Chancery is therefore reversed with costs; and that of the County Court, dismissing the appellee’s bill at his own instance, is to be affirmed.”

JUDGE) FI/EMING,

dissenting from the foregoing, pronounced the following separate opinion.

Whenever I dissent from a majority of the court, it *will perhaps be expected, and I think it incumbent on me, to assign some reason for my opinion; and the difference on this occasion being merely on a matter of practice, I shall briefly notice, that on the 27th of February 1806, Tidwell’s injunction was dissolved by the County Court of Westmoreland, on which he prayed an appeal, which was allowed him on the usual terms; but it being from an interlocutory decree, not authorized by law, he could not prosecute it. By an act of assembly, passed the 20th of January, 1804, (ch. 29, sect. 4,) it is enacted that “where an injunction is wholly dissolved in an inferior Court, the bill of the complainant shall stand dismissed of course, with costs, unless sufficient cause be shown against such dismission, at or before the second Court, let the same be monthly or quarterly thereafter: and it shall be the duty of the several clerks of the said Courts to enter such dismission on the last day of the terms aforesaid.”

It was the official duty then of the clerk of Westmoreland County to have entered the dismission of the bill on the last day of the same Court after the injunction was dissolved, no sufficient cause having been shown against such dismission. At the October Court following, Tidwell, finding the cause still on the docket, did what the clerk ought, ex officio, to have done before; as it is highly presumable that two Courts, either monthly or quarterly, had intervened between February and October, when Tidwell dismissed his bill, and prayed an appeal (not from the dismission of his own bill, but) from the decree dissolving his injunction, which then had become final. ■

There appears some irregularity in the proceedings, but it was not the fault of the appellee; and, in cases of equity, I am not for adhering to rigid rules of practice; but would relax a little to obtain justice.

With respect to the merits of the cause, it appears to me that the decree directing an account to be taken of the guardianship of Rowzee is correct: First, because *the estate of his ward consisted of between thirty and forty negroes and about 4S0 acres of good land : he was sent only two years to school from the age of fourteen, when Rowzee became his guardian, lived chiefly among his relations, was meanly clad, and had large sums of money to pay after he came of age, for necessaries whilst he was under the guardianship of his uncle Rowzee. Secondly, because the guardian (conscious, no doubt, that he had not done justice to his ward, but had neglected his interests) showed great anxiety to have the account of his guardianship settled, as soon as his ward came of age; saying, at the same time, “that he was fearful, unless he could get a settlement that he should be greatly injured, on account of the property of his ward being considerably wasted during his minority.” Thirdly, because after the settlement, (when or how it was made does not appear,) he took the bond of his ward for about 341., but declared he never intended to receive any money on it; but only meant it as a bar against any claim which his ward might bring against him, as his guardian; and it is in evidence that great waste had been committed on Tidwell’s property, whilst Rowzee was his guardian. And lastly because by our act of Assembly concerning guardians, orphans, &c. it is enacted, that every orphan who has an estate, the profits of which shall not be sufficient for his or her maintenance, shall be bound apprentice, &c. Upon these grounds, I am of opinion that the decree directing an account to be taken of the guardianship of the appellant’s testator ought to be affirmed: but a majority of the court being of a different opinion, the decree is reversed, and the bill of the appellee dismissed with costs.  