
    *Jones v. Bradshaw & Others.
    January Term, 1863,
    Richmond.
    i. Pleading; and Practice—Pleas in Abatement—Statute —When It Applies.—The act Code ch. 171, § 19, p. 711, applies only where the objection to the jurisdiction of the court, is for mere matter of abatement; as where the case is a proper one for a court of equity, but not for the particular court in which the suit is brought: or where the suit ought to be abated by reason of some circumstances attending the situation of the plaintiff or defendant, or the like.
    
    2. Chancery Practice—Bill Alleges Proper Matter for Equity Relief—Allegations False, —Where a bill alleges proper matter for the jurisdiction of a court of equity (so that a demurrer will not lie) if it
    „ appears on the hearing that the allegations are false, and that such matter does not in fact exist, the result must be the same as if it had not been alleged; and the bill should be dismissed for want of jurisdiction.
    3. Same—Pure Bill of Discovery—Discovery Unnecessary.—The ground of equitable jurisdiction stated in the bill, being the want of a discovery from the defendant; and it appearing from the evidence that as to some material facts alleged the plaintiff had full proof, and as to the others they were merely pretences; the bill will be dismissed at the hearing for want of jurisdiction.
    4. Decrees — Satisfied — Reversed—Action of Lower Court.—Tf pending an appeal in the court of appeals, the defendant has satisfied the decree, upon a reversal of it, the Circuit court should make an order of restitution in his favor.
    This was a suit in chancery brought in the Circuit court of Lunenburg, and after-wards removed to the Circuit court of Nottoway, by Anderson B. Bradshaw *and Susan his wife, and some twenty-five others, grandchildren of William Hines deceased, against Lewellen Jones. The bill stated a bequest by William Hines of one-seventh of his slaves to his son Thomas Hines for life, and should he leave no lawful heirs of his body, the said slaves to be equally divided among all the testator’s grandchildren living at the death of Thomas Hines. It alleged that Thomas Hines died without having had a child; and that the plaintiffs were the grandchildren entitled to the slaves on the death of Thomas Hines; who died in the year 1849. That at the death of William Hines, Thomas received several negroes in his lot, some of whom were not recollected, but the plaintiffs remembered the names of three of them, viz: John, Reuben and Lucy, all whom were sold by Thomas Hines in his life time, together with four others whose names were unknown, and passed into the possession of Lewellen Jones, and were in his possession at the death of Thomas Hines. That they do not know where the slaves are; that they cannot prove that Jones had possession of the slaves, or their value or increase, but by a discovery from him. That Jones purchased the slaves from H. B). Shore, who obtained them from the estate of Alexander Scott, who purchased them with full knowledge of the defect of title in Thomas Hines; as did also Jones. They repeat that they do not know by whom they can prove these facts, but the defendant' Jones. And they make Jones a defendant and call upon him to say, what price he obtained for the slaves, and what would be a fair hire for them since 1849, of whom he purchased them, how many they then numbered, when he sold them, &c.
    Jones in his first answer, without noticing any of the allegations or interrogatories of the bill', insisted that Thomas Hines’ title to the slaves was valid. He relied upon the statute of limitations; and that he was a purchaser *for value without notice. The plaintiffs excepted to this answer; and the exception was sustained by the court. In his second answer, he says, that in the year 1849, he thinks in November, he purchased of Henry B). Shore three negro slaves—an old woman named Lucy and her two sons John and Reuben, one about fourteen or fifteen years of age and the other about nine, at the price of $1,000. That he shortly afterwards sold them, but does not recollect the price. He does not known at what time Thomas Hines died, and cannot say whether or not he was in possession of the slavés after the death of Hines, but does not admit he was. He avers that when he purchased the slaves he had no suspicion of any defect of title to the slaves, or that the plaintiffs had any claim to them. He does not admit that the slaves were derived by Thomas Hines from William Hines, or that the plaintiffs - are the grandchildren of Willaim Hines; and he calls for proof.
    The plaintiffs objected to this answer; but the court overruled the objection: and the case was referred to a commissioner to report the value of the slaves Lucy and her two sons John and Reuben and the increase of Lucy, if any, at the death of Thomas Hines, and their value at the time of taking the account. Also to enquire and report in whose possession the said slaves were at the death of Thomas Hines, and what would be a reasonable hire for them since the death of Hines. And the commissioner was authorized to examine Jones on oath. The first report of the commissioner was excepted to by the plaintiffs, and recommitted. The second report was that Huey was of no value in March, 1857, when the report was made, and that the value of John and Reuben was at that time $2,100. The hires since 1849 were reported at $770. This report was based solely upon the examination of Jones before the commissioner.
    It appears that there was another suit pending in the *same court at the same time, between the plaintiffs and
    Henry E. Shore, in relation to the same slaves; and in this suit depositions had been filed, which by the agreement of the counsel were to be read in the present suit, if the plaintiffs were entitled to introduce evidence, which the defendant denied, on the ground that it was a bill of discovery. These depositions established the facts that the plaintiffs were the grandchildren of William Hines, and that the slaves were slaves derived by Thomas Hines from William Hines. One of these depositions, given in 1853, was that of the defendant Jones, in which he stated that he purchased the slaves Huey and her children John and Reuben of Henry E. Shore on the 23d of November, 1849, and that he gave $1,000 for them. These depositions made out the case of the plaintiffs.
    In April, 1857, the court made a decree directing the defendant Jones to pay to the plaintiffs the sum of $2,100, the estimated value of the slaves at that time, and the further sum of $770 the estimated hires. And from this decree Jones obtained an appeal from a judge of the Circuit court.
    John Hyon, for the appellant.
    Howard & Sands, for the appellees.
    
      
      The act says: “Where the declaration or bill shows on its face proper matter for the jurisdiction of the court, no exception for the want of such jurisdiction shall be allowed, unless it be taken by plea in abatement; and the plea shall notbereceived after the defendant has demurred, pleaded in bar or answered to the declaration or bill, nor after a rule to plead, or a conditional judgment or decree nisi."
      
    
    
      
      Chancery Practice—Pleas in Abatement—When Necessary.—In Green v. Massie, 21 Gratt. 362, the court said; “It would seem to be well settled, that if the matter of the bill is not proper for the jurisdiction of any court of equity, the objection may be' made by plea or demurrer, and it may be taken at the hearing. The plea in abatement is only necessary where it appears that some other court of equity has jurisdiction, rather than that in which the suit is brought. Jones v. Bradshaw, 16 Gratt. 355.”
      As to objections to a bill for want of equity, see foot-note to Green v. Massie, 21 Gratt. 356.
    
    
      
      Chancery Practice—Bill of Discovery — Discovery Unnecessary.—In Thompson v. Whitaker Iron Co., 41 W. Va. 581, 23 S. E. Rep. 797, the court'said; “If the fact that discovery is not indispensable for evidence appears from the bill, answer, or proof, it will be dismissed. Jones v. Bradshaw, 16 Gratt. 355; 1 Pom. Eq. Jur. § 229.” See also, the principal case cited on this point in Hale v. Clarkson, 23 Gratt. 48.
      See the principal case distinguished in Walters v. Farmers’ Bank, 76 Va. 20.
    
   ROBERTSON, J.

The only ground for the jurisdiction of á court of equity, in this case, is that a discovery'from the defendant was necessary to enable the plaintiffs to recover the slaves in controversy. The bill sufficiently alleges the necessity of such discovery, but the allegation is disproved by the evidence in the cause.

The exhibits from the case of Bradshaw v. Shore and others (including the depositions, which, it is apparent, were read on the hearing of this case), show that the plaintiffs had it- in their power to prove, independently *of any discovery which they might obtain from the defendant, that, as the grandchildren of William Hines, they were entitled, under his will, to the slaves in controversy, upon the death of Thomas Hines, on the 29th day of November, 1849: that said slaves had been sold by Thomas Hines, as his absolute property, to Alexander Scott, on the 26th day of December, 1840, as Shown by his bill of sale warranting the title against all persons whatsoever: that Henry E. Shore after-wards became possessed of them by intermarriage with the widow of Scott, who took them under his will; that Shore held them as his absolute property, and sold them as such to the defendant, on the 23d day of November, 1849, and that the defendant, under that purchase, took possession of them as absolute owner.

The discovery asked for could not disclose any fact, in addition to these, material to the plaintiffs.

In -the absence of proof to the contrary, a jury would have been authorized - and required to infer that the defendant was in possession of the slaves at the death of Thomas Hines, when the title of the plaintiffs accrued. He held them a few days previously to that event, claiming to be the absolute owner, and the burthen of proof would have been upon him to show that he had parted with the possession before it happened ; for one in possession of property, claiming to be the absolute owner, is presumed to continue to hold it, until the contrary is made to appear.

It is doubtful whether the bill is to be understood as charging that, in addition to the slaves John, Reuben and Huey, there were four others whoses names were unknown, who also went into the possession of the defendant. If it is to be so understood, the allegation was not only wholly unwarranted by the facts, but was obviously so known to be by the plaintiffs themselves. The defendant makes no reference whatever to these four ^slaves in either of his answers, but treats the bill as seeking to, recover from him only the three above named, and their increase, if any. In their exceptions to the answers the plaintiffs did not object that the defendant failed to respond as to the four slaves also; nor did they propound any question to him respecting them in either of his examinations before the commissioner. It is manifest that it was well understood, by a.11 parties, that the defendant had nothing to do with these four slaves, and that no discovery was needed or desired by the plaintiffs in reference to them.

The call for a discovery as to the increase of the slaves named in the bill was a mere pretence. There was no increase; and there is no reason to believe that the plaintiffs supposed that there was any. The case of Armstrong v. Huntons, 1 Rob. R. 326, is authority to show that a call like this is insufficient to give jurisdiction to a court of equity.

As to the call for a discovery of the value of the slaves, it is enough to say that it was as easy for the plaintiffs as for the defendant to ascertain their value.

Upon the whole case it is quite clear that the demand for a discovery was colorable only, and that a court of equity ought not to take jurisdiction.

But it is insisted that the objection must be made by demurrer, or by plea.

In this case a demurrer could not be sustained because the allegations of the bill are sufficient to show the necessity of a discovery.

No plea was filed putting directly in issue the allegation that a discovery was necessary to the plaintiffs: but the defendant in his amended answer says he is advised that the plaintiffs’ proper remedy, if they are entitled to recover at all, would be an action at law, and that they ought not to be permitted to prosecute their *suit in chancery, because they have a full and sufficient remedy at law. We deem it unnecessary to decide whether this put properly in issue the fact as to the necessity of a discovery; because we think that even if no objection to the jurisdiction were made in any form in the pleadings, it would be competent to the defendant to make the objection on the hearing; and the court should dismiss the bill if it then appeared, from the whole case, that the call for a discovery was colorable merely.

The statute, Code ch. 171, § 19, p. 711, has no application to such a case. It applies where the objection is for mere matter of abatement; as, where the case is a proper one for a court of equity, but not for the particular court in which the suit is brought; or, where, the suit ought to be abated by reason of some circumstance attending the situation of the plaintiff, or defendant, or the like.

But the statute does not apply where the objection, instead of merely tending to divert the proceedings to some other equitable jurisdiction, or to suspend them, or to abate the particular suit, is absolutely in bar of the claim to the interposition of a court of equity, and impugns the right to sue in that court altogether.

Accordingly where the case appears on the face of the bill to be proper for the cognizance of a court of law only, and not of any court of equity the statute has been held not to apply. Pollard v. Patterson, 3 Hen. & Munf. 67; Hudson v. Kline, 9 Gratt. 379; Beckley v. Palmer, 11 Gratt. 625.

Where the bill alleges proper matter for the jurisdiction of a court of equity (so that a demurrer will not lie), if it appears on the hearing that the allegations are false, and that such matter does not in fact exist, the result must be the same as if it had not been alleged, and the bill should be dismissed for want of jurisdiction.

*In this case, the decree must be reversed, and the bill dismissed. It having been suggested in this court, that the amount of the' decree against the appellant has been paid by him, it will be proper for the Circuí t court if that shall be made to appear, to make an order of restitution in his favor, unless cause be shown to the contrary. Flemings v. Riddick, 5 Gratt. 272.

The other judges concurred in the opinion of, Robertson, J.

Decree reversed.  