
    *Randolph’s Ex’or and Others v. Tucker and Another.
    March, 1840,
    Richmond.
    (Before a special court of appeals, consisting- of Scott, Thompson and Cuopton, judges of the general court.)
    Circuit Superior Courts-Jurisdiction over Injunctions. — The 41st section of the circuit superior law, Supp. to Rev. Code, ch. 109, giving jurisdiction to each of the judges of the circuit superior courts, to award injunctions to judgments rendered or proceedings apprehended out of his own circuit, hut directing that, in such case, the order for the process of injunction shall he directed to the cleric of the court of that county wherein the judgment is rendered or the apprehended proceeding is to he had, gives the judge jurisdiction only to award the injunction, not to hear and determine the cause.
    Same — Same-Case at Bar. — Therefore, where the judge of the circuit superior court of James City awarded an injunction to proceedings to he had in the county of Charlotte, and directed the order for the process of injunction, not to the clerk of the court of Charlotte, hut to the clerk of the court of James City, though the defendant whose proceedings were injoined was the judge of the court of Charlotte, yet Hur/n, the process, and the subsequent proceedings in the court of James City being founded on it, were without authority and erroneous.
    The general court, in July 1836, admitted to probat and record, as the last will and testament of the late John Randolph of Roanoke, several testamentary papers, namely, a paper purporting to be his will, without date, but supposed to have been written in 1821; a codicil thereto dated the 5th December 1821; another codicil dated the 31st January 1826; four other codicils dated the 6th May 1828; and lastly, another codicil dated the 26th August 1831. By the original will and the codicil of January 1826, mr. Randolph emancipated all his slaves; and bequeathed to his executor (William Leigh) the sum of 8000 dollars, and other funds, for transporting and settling the emancipated slaves in some other state or territory of the U. *States, and purchasing lands for them ; and he devised valuable lands in Virginia to be sold at his executor’s discretion, and bequeathed the proceeds to Francis Scott Key and William Meade, to be disposed of towards bettering their condition. The will and codicils were propounded for probat by mr. Meade. The heirs at law and next of kin of mr. Randolph were his nephew John St. G. Randolph (a lunatic) who was the only child of a deceased brother of mr. Randolph, and his only heir of the whole blood, Henry St. G. Tucker and Nathaniel Beverly Tucker, his brothers of the half blood, and St. George Tucker Coalter and F/lizabeth Tucker Bryan (wife of John Randolph Bryan) children of his deceased sister of the half blood; and of these John St. G. Randolph by Frederick Hobson his committee, Henry St. G. Tucker, and John R. Bryan and wife, appeared as parties in the general court, contesting the probat of the will and codicils; but Nathaniel B. Tucker and St. George T. Coalter did not appear by the record to have been parties. Hobson, the committee of John St. G. Randolph, took an appeal from the sentence of probat to the court of appeals ; and Henry St. G. Tucker and John R. Bryan and wife appealed from so much of the sentence as admitted to probat the instruments other than the codicil of the 26th August 1831. The court of appeals affirmed the sentence. And William Heigh, the sole executor named in the will, qualified as such, in the general court, at December term 1837.
    Immediately after the qualification of the executor, Nathaniel B. Tucker and St. George T. Coalter exhibited a bill in chancery in the circuit superior court for the county of James City and city of Williams-burg, against Leigh the executor, Meade and Key the trustees for the emancipated slaves, and the plaintiff’s coheirs and co-distributees, John St. G. Randolph, Henry St. G. Tucker, and John R. Bryan and wife, setting forth the will and ^codicils of mr. Randolph above mentioned, the probat thereof, and the qualification of the executor: alleging that mr. Randolph, at the time of making and publishing the testamentary papers which had been admitted to probat, and each and every of them, was of unsound mind and memory, and therefore not of capacity to dispose of his estate by will; that he had afterwards cancelled the first of the testamentary papers, namely, the will to which the others were codicils; that he had, in the spring of the year 1832, subsequently to the last of the codicils, made a will, whereby he devised and bequeathed his whole estate to his heirs at law and next of kin, of the whole and of the half blood, above named, to be divided among them according to the statutes of descents and distributions, and revoked all former wills; and that this his true last will had never been cancelled or otherwise revoked by him during his life, but it had been lost and destroyed by some ^person to the plaintiffs unknown; suggesting, that by the admission of the above mentioned testamentary papers to probat, and the grant of administration thereupon to Leigh the executor, he and Meade and Key, the trustees for the slaves thereby emancipated, would consider themselves empowered and required to carry into effect the provisions in relation to the slaves, and would, unless restrained by the court, immediately transport them beyond the limits of the commonwealth, so that in case those testamentary papers should be pronounced by the decree of the court not to be the last will and testament of mr. Randolph, their distributable interest in the slaves would be utterly lost to the plaintiffs, or they would be forced into a foreign jurisdiction to assert their claim to them: and praying, therefore, that the court should direct an issue or issues of devisavit vel non, to be tried by a jury on the law side of the court, to ascertain whether the testamentary papers which had been admitted to probat, or any of them, were the *last will and testament of the deceased; that the court should compel the production of his last will and testament made in the spring of the year 1832, when it should be discovered, or admit proof of the contents thereof, so that the same might be admitted to probat; and, in the. mean time, that Leigh, the executor, should be restrained and injoined from carrying into effect any of the provisions of the said testamentary papers in relation to the slaves, and from removing them out of the commonwealth, and from doing any act as executor prejudicial to the rights of the plaintiffs as heirs and distributees of the deceased, and that Meade and Key should likewise be restrained and injoined from executing the trust conferred on them in relation to the slaves.
    The injunction prayed for by the bill was awarded by the judge of the circuit superior court of James City and Williamsburg, and the order for the process was directed to the clerk of that court, who accordingly issued the process returnable to that court. The process was served on the defendants Bryan and wife in Williamsburg, they being there at the time, though they did not reside there: and it was sent to other parts of the commonwealth, where the other defendants resided or were found, and served on them.
    The executor Leigh, in his answer, controverted all the material allegations of the bill touching the validity of the testamentary papers of his testator admitted to probat in the general court; and he alleged, that both the plaintiffs, though they did not appear on the record of the court of probat, as parties contesting the probat, yet in fact joined in contesting the probat there, and therefore could not maintain this .bill; that the defendants Bryan and wife were parties on the record contesting the probat, and were made defendants in this cause, in order by serving the process on them at Williamsburg, though they were only nominally defendants, *to give colour of jurisdiction to the circuit superior court for James City and Wil-liamsburg, in which the suit was brought; that that court was held at a great distance from the residence of all the real defendants, and of the most material witnesses upon whose evidence the validity of the will in question depended, and was a most inconvenient tribunal for the trial of the cause; and (according to the construction put upon his answer by his counsel) he objected, that, in point of law, the court had no jurisdiction.
    The defendants Meade and Key referred to the answer of the executor Leigh, and relied on the grounds of defence therein stated.
    The defendant Henry St. G. Tucker, in his answer, expressed his willingness that the issues of devisavit vel non asked by the bill, should be directed, and made no objection to the jurisdiction of the court.
    The defendants Bryan and wife, in their answer, neither contesting nor supporting the will of 1821, or the codicils of 1826 and 1828, insisted on the testamentary paper of August 1831 as the true last will and testament of the deceased; and claimed the share, to which mrs. Bryan was entitled, as one of his heirs and distributees, of any estate as to which he died intestate. They made no objection to the jurisdiction.
    And Hobson, the committee of John St. G. Randolph, answered, that he was willing the issue of devisavit vel non should be directed, making no objection to the jurisdiction.
    Mr. Randolph’s domicil was at Roanoke in the county of Charlotte. The far greater part of his landed estate, and especially the land, which by the will in question he directed should be sold by his executor, and the proceeds of which he bequeathed to mr. Meade and mr. Key to be disposed of for bettering the condition of his manumitted slaves, lay in Charlotte. His slaves also were living on his estate in Charlotte. *No part of his real estate or slaves was in James City or Williamsburg. All the provisions of his will in relation to his slaves were to be carried into execution in Charlotte.
    The plaintiff Nathaniel B. Tucker resided at Williamsburg; the plaintiff St. George T. Coalter, in King William county. The defendant Leigh, the executor, resided in the county of Halifax. He was a judge of the general court assigned to the ninth circuit, composed of the counties of Halifax, Charlotte, Prince Edward, Lunenburg and Mecklenburg. The next or adjacent circuits were the second, the eighth and the tenth: James City and Williamsburg belonged to the third circuit, which was not adjacent to the ninth. The defendant Meade resided in the county of Clarke; the defendant Key, in the district of Columbia; the defendants Bryan and wife, in the county of Gloucester; the defendant Henry St. G. Tucker, president of the court of appeals, was a housekeeper in the city of Richmond during the session of the court there, but his residence, when he was not engaged in the discharge of his official duties at Richmond and Lewisburg, was in the county of Jefferson.
    The cause coming on for hearing in November 1839, the defendants Leigh, the executor, Meade and Key, the trustees for the manumitted slaves, and Bryan and wife, moved the court, 1st, to dismiss the bill for want of jurisdiction of the court in the cause; and if that motion should be overruled, then, 2dly, to remove the cause to some other court more convenient to the defendants and their witnesses; and if both those motions should be overruled, then, 3dly, to direct the issue of devisavit vel non to be tried at the bar of some other court more convenient to the defendants and their witnesses. The court overruled the motion to dismiss the cause for want of jurisdiction, on the ground, chiefly, that the objection to the jurisdiction was not distinctly pleaded *in the answer of the defendant Leigh, but it also expressed the opinion that it had jurisdiction ; and then overruled the other two motions, and directed an issue of devisavit vel non to be tried by a jury on the common law side of the court.
    The defendants Leigh, Meade and Key applied by petition to this court for an appeal from the order; which was allowed.
    The cause was argued here by Taylor and Robertson for the appellants, and by Brooke and R. T. Daniel for the appellees, upon all the points presented by the defendants’ motions in the circuit superior court; but it was decided by the court upon the question of jurisdiction alone.
    
    
      
      Ttie principal case is cited in Beckley v. Palmer, 11 Gratt. 632; Muller v. Bayly, 21 Gratt. 530, 533. See generally, monographic note on ‘'Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518; mono-graphic note on "Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
    
      
      The question of jurisdiction depended on the following- statutory provisions—
      1. The provisions of the circuit court law of 1819, 1 Rev. Code, ch. 89, § 53, 54, p. 239. “If either of the judges of the general court he interested in any suit, which, in the case of any other person, would have been proper for the jurisdiction of such judge, it shall he lawful to institute such suit in any court within an adjacent circuit, and the process from such adj a cent court may he served in the circuit to which such iudge shall he allotted, or in which he shall reside, and proceedings shall he thereupon had.” — “ When any judge of a circuit court shall he interested in any cause depending in his circuit, or related to either of the parties, or in any manner situated so as to render itimproper, in his judgment, to preside at the trial, it shall he lawful for such judge to cause the same to he removed to the next circuit, and to the most convenient court in that circuit, for trial.”
      2. The 38th section of the circuit superior court latv. Supp. to Rev. Code, ch. 109, p. 151. “If there he more than one defendant in any suit in chancery, brought or pending in any circuit superior court, the said suit may he instituted in the circuit superior court of the county or corporation wherein either of them may reside, and the clerk shall and may issue process against the other defendant or defendants, directed to the counties or corporations in which they may he found : and on the return thereof, the like proceedings shall he had as if all the defendants resided within such county or corporation : Provided, that any such circuit superior court sitting in chancery, may, at any time, on motion and for good cause shewn by any defendant or defendants residing in any other county or corporation than that wherein such suit in chancery may be brought, or for reasons appearing to the court itself, order any such suit to he removed to the circuit superior court of the county or corporation, wherein the defendant or defendants principally interested or chargeable may reside.”
      And 3. the 41st section of the same statute, which provides, that “the judges of the circuit superior courts shall each have and exercise a general jurisdiction in awarding injunctions, whether the judgment or proceeding injoined he rendered by a superior or inferior court, within or without their respective circuits, or the party against whose proceeding the ini unction he asked, he a resident within or without the circuit of such judge awarding the same ; hut the order of such judge, awarding an injunction to a judgment or proceeding not within his circuit, shall he directed to the clerk of the court of that county or corporation, in which such judgment shall be rendered, or proceeding apprehended ; on which such proceedings in all respects shall he hereafter had. as if the order had been made by the judge in whose circuit such judgment may have been rendered, or proceeding had or apprehended.” —Note in Original Edition.
    
   *SCOTT, J.,

delivered the opinion of the court — That the 41st section of the circuit superior court law, which gives general jurisdiction to each of the judges of the circuit superior courts, to award injunctions to judgments rendered, or to proceedings had or apprehended, without as well as within his own circuit, j’et expressly requires, that the order of the judge awarding an injunction, in such case, shall be directed to the clerk of the court of that county or corporation, in which the judgment shall have been rendered, or the proceeding is apprehended; that, in such case, the statute, in effect, gives the judge jurisdiction only to award the process, not to hear and determine the cause, and refers, the cause to another and more convenient tribunal; and that, as the proceedings which were apprehended in this case, and which were injoined, were proceedings that were to be had in the county of Charlotte, the judge erred in directing the order for the process of injunction to the clerk of the ^circuit superior court for James City and Williams-burg, and the process and the subsequent proceedings being founded on that order, were without authority and erroneous. That, therefore, the same should be reversed with costs. And the court proceeding to pronounce such a decree as the circuit superior court ought to have pronounced, it was decreed and ordered, that the bill of the appellees should be dismissed with costs.  