
    Sutton v. Gatewood and Wife.
    Decided, Oct. 14th, 1819.
    i. Chancery Practice — Demurrer Overruled — Leave to Pile Answer. — when a demurrer to a Bill in Chancery is overruled, a decree ought not to be pronounced against the defendant, but leave should be given him to file an answer.
    Same — Bill against Guardian— Demurrer — Ward Not Party. — A demurrer to a Bill in Chancery against a Guardian for advances of money &c. by the plaintiff for the use of the Ward, ought not to be sustained on the ground that the Ward ought to have been a party: — but if, upon the answer of the guardian, it should appear proper, the Court should then direct the Ward lo be made a party.
    
      
       Chancery Practice — Demurrer Overruled — Leave to File Answer. — On overruling a demurrer, the court should make a rule upon the defendant to answer the bill before pronouncing a decree against the defendant. Nichols v. Nichols, 8 W. Va. 191; Moore v. Smith, 26 W. Va. 884; Reynolds v. Bank of Virginia, 6 Gratt. 188; Hays v. Heatherly, 36 W. Va. 632, 15 S. E. .Rep. 226, all citing the principal case. See generally, monographic note on “Demurrers” appended to Com. v. «Jackson. 2 Va. Gas. 501.
      See monographic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.
      The principal case was cited in Governor v*. M’Oulloch, 2 Gratt. 177.
    
   This was a suit transferred (under the Act of Assembly of January 20th, 1814,) from the Superior Court of Chancery at Richmond to the Fredericksburg District, after the Bill had been taken for confessed, and a report of a Commissioner upon the accounts between the parties had been returned; in which report, Button the only defendant, was charged (among other items) *with the board, and sundry advances for the benefit, of several children, his wards, who, it was al-ledged in the Bill, were supported by the plaintiffs.

In April 1816, on the defendant’s motion, the order of February 1st, 1812, taking the bill for confessed, was set aside, and leave granted him to file a demurrer for the want of proper parties; on the ground that, since his wards were persons principally interested in the suit, they ought to have been made parties defendant to the Bill: — but, upon argument, the Chancellor overruled the demurrer, and decreed against the defendant, conformably to the report: — from which decree he appealed.

It was the opinion of this Court, that the Decree was erroneous, in not reserving liberty to the appellant, on overruling the demurrer, to file his answer. It was therefore reversed, and the cause remanded for that purpose, with a direction that if, on the coming in of the said Answer, it should appear proper, the Wards of the appellants should be made parties to the suit.  