Cropper v. Burtons and Others, 5 Leigh 426

TUCKER, P. The chancellor was right in reversing the decree of the county court, because there was no evidence of the payment by the appellant of the debt to Warner. Yet I am of opinion, that it was too rigorous to proceed to enter a dismissal of the bill, under the circumstances of the case. The bill distinctly alleged the payment; it was not denied by the adult defendants; and it can only be considered as put in issue by the general and sweeping denial of the answer of the guardian ad litem for the infants, filed in the customary form.

Had the objection been made in the county court, the evidence might have been supplied, and Warner’s representative might have been made a party, as indeed he ought to have been. But no objection was made. The court itself deemed the proofs sufficient; and by its very decree in the plaintiff’s favor, it entrapped the appellant, if it be really true that the appellate court was bound to dismiss his bill, out and out. Such a course is certainly not calculated to further the purposes of justice, and should therefore be discountenanced.

The chancellor, in reversing the decree, should have sent the .cause back, with directions, that Warner should be made a party and an in.quiry instituted as to the payment of the judgment by Cropper. In the case of Duff v. Duff’s ex’ors, 3 Leigh 523, I have explained my views of the spirit that ought to govern the courts in cases of this kind.