so well recognized that I pause only for a moment to refer to one or two well established cases in our courts. Perhaps one of the best recognized cases in our courts is that of Nagle v. Newton, 22 Gratt., 814, where the court holds that the case being a proper one for the jurisdiction of equity may, in addition to the determination of the equitable principles involved, decree compensation for damages to one of the parties to the contract which was asked to be specifically enforced. The authorities are reviewed by Judge Christian in that case, and the jurisdiction sanctioned in the language of the court as follows: “Why should the cause be divided into two suits-a part of the controversy to be adjudicated in a court of equity, and a part in a court of law? Why should two distinct and independent tribunals be invoked to dispose of à cause between the same parties, where their respective claims are so connected as to be inseparable? Why call upon a court of law to aid the court of equity, which has the undoubted original jurisdiction of the subject matter and of the parties, and is provided with all the machinery necessary to arrive at the same result, and in the same mode, if need be (trial by jury) which could be attained in a court of law? We cannot perceive the necessity or the propriety of such a practice. Nor can we find any authority among the modern decisions to require it.” This case, and many that might be cited as following it, and adopting its principles, establishes the principle that where a court of chancery rightfully has jurisdiction of the cause, it will hold it to do complete justice to all of the parties involved even if thereby the adjudication of legal rights are involved. The solindness of this principle has now passed beyond the realm of controversy. And while, if asserted in the days of in re Shylock, or of Langford v. Bernard, Tothill 134 (1598), would have been resisted with all the prejudice of the common law lawyers of that day, it is perhaps to-day as well recognized as any principle in equity jurisprudence.

The phase of the question to which I desire specially to direct attention is not whether a court of equity having jurisdiction of a cause may enforce legal rights arising in the progress of the

>

cause between the parties, but whether a court of equity, which, as the final decision of the cause shows, never had jurisdiction of the original cause, may yet hold the case for the adjudication of legal rights which it clearly could not have enforced if the bill had been filed for their enforcement. In the first case stated, the adjustment of equitable principles is the foundation of the suit, tlre enforcement of legal rights which might incidentally arise in the progress of the cause is merely ancillary to the main contention. The enforcement of equitable principles was the primary; that of legal rights an incident of the suit. The one, original, primary; the other, ancillary and secondary. The one, the cause of the suit; the other, an incivient. The one, the foundation; the other, an incident of the superstructure. But the question to which attention is now directed is more troublesome. Admitting that being once properly within the jurisdiction of a court of equity, that that court will retain the cause to do complete justice, does it follow that coinplete justice may be done the parties in the adjudication of legal rights on the basis of a bill, which, on its face, shows a want of equity-or where in the final determination of the cause it is shown that there was actually no equity for which the jurisdiction of the court could have been properly invoked.

The first branch of this subject may be quickly disposed of. If the bill on its face is demurrable for want of equity, I think it will not be questioned that if à demurrer is interposed, the cause cannot be retained for the determination of any rights, legal or equitable. Without an equity in the bill it can be retained for no purpose. Its only standing in court must be on the equity on its face. If that is lacking, the bill must fail for all purposes. If, however, the bill on its face sets forth facts which clearly give to the court jurisdiction of the cause, and such bill is not open to demurer because it states a good cause of action, but in the development of the cause, in the filing of the answer, the pleas of the defendant, the production of testimony, it is shown that the cause as set forth in the bill is not made out,

and, therefore, there was never any equity giving the court jurisdiction, though the bill itself, on its face, averred a good cause of action, can such a bill be retained for the determination of legal rights? This question is more difficult: What is it that gives to a court of equity jurisdiction of a cause? or in other words, how must a chancellor determine whether he has jurisdiction when the bill on its face is proper? Must he, before he can recognize his jurisdiction, demand the proof of the averments of the bill ? Must a bill to give jurisdiction present the proof along with the averments of the bill contrary to the first principles of equity pleading? Must the orderly processes of the court which require first the averments of facts, then the denial, then the proof, be set aside by the requirement that in order to jurisdiction, averments must be sustained by, and coupled with proof with the bill? If in the hot contest of a suit in equity, the result of the cause is finally determined in favor of the defendant, have all the proceedings leading up to that result been coram non judice? Has a court during all of those stages been determining a cause of which it has no jurisdiction because it finally turns out that the plaintiff's contention cannot be maintained ? Is it the bill, or the result of the litigation that determines the question of jurisdiction ? To hold otherwise than that the bill itself must be the determining factor would result in interminable complication, even though the result is reached by a seeming usurpation of jurisdiction; and while the question has been much mooted, and some courts inclined to doubt it, we think we are safe in maintaining that our own courts as well as those of Massachusetts, New York and other States, sustain this doctrine. In the case of Ahl's Appeal, 129 Pa., 63; Atlantic Reporter,

, 18, p. 477, the Pennsylvania Court holds that where the bill makes a good case against each of the defendants, and proofs are had, and the plaintiff fails to sustain the averments of the bill against either of the defendants, the bill must be dismissed and cannot be retained for the prosecution of the cause: distinguishing the case from that of Slemmer's Appeal, 58 Pa., 155, where, under a prayer for general relief, relief was granted, though not specially asked for in the bill; and maintaining that where the bill shows no right to relief in equity the case has nothing on which to stand and must fall. In Ahl's Appeal the bill alleged a partnership with the defendant, prayed for a dissolution and account. On a reference, the master found no partnership existing, and, therefore, there could be no accounting, but it was discovered during the progress of the evidence that the defendant was indebted to the plaintiff in a large sum for loans and advances, and the lower court decreed payment of this on behalf of the plaintiff. Its action was the subject of review in the case and was reversed.

In the case of Case vs. Minot, 158 Mass., 577; 22 L. R. A., 536; the doctrine laid down in Milkman vs. Ordway, 106 Mass., 232, and the Woodbury Company vs. Marblehead Water Company, 115 Mass., 509, was said to be this: "That where a plaintiff in good faith, brings a suit seeking equitable relief, supposing and having reason to suppose himself entitled to such equitable relief, even though at the time when the bill was brought he had no right to relief purely equitable, yet the court will afford relief by awarding compensation.” “A fortiori, if

“ the reason for denying the purely equitable relief occurs pending the suit.” In this case, the bill was filed for an injunction by certain lessees against their lessors or their agents, for obstructing light and air on the premises by building a chimney, and pending the litigation, the complainant's lease expired, and the court retained the bill to assess damages for the complainant.

The view of the Massachusetts court seems to follow the case of Phillips vs. Thompson, 1 Johnson Chancery, 132, decided by Chancellor Kent---a case in which the bill was filed for the specific performance of a parol contract, alleging a part performance of the contract to take the case out of the statute of frauds; there was a failure by the plaintiff in making out the existence of the contract as alleged, and the question to be determined was whether the bill should be dismissed, or whether

injury sustained by the plaintiff should be decreed against the defendant by way of damages. The chancellor retained the bill and awarded an issue of quantum damnificatus to assess the damages which the plaintiff had sustained. This seems to be in accordance with the case of Nagle vs. Newton, 22 Gratt. 814, supra; Gordonsville Milling Company vs. Jones (Tenn.), 57 S. W., 630; 21 N. E., 95.

These cases are sufficient to show the diversity of view on this subject of the courts of other States, and are in no wise to be regarded as a full statement of all of the cases that might be cited on the subject, but merely as samples of those decisions.

Coming on to our own court, we find that a dictum in the case of Jones vs. Bradshaw, 16 Gratt., 355, has led to some erroneous conclusions as to the view of our court on this subject. In this case, the bill was filed asserting jurisdiction on the ground of discovery sought from the defendant. During the progress of the cause it was found, as to certain material facts, of which discovery was desired, the complainant had full proof, and as to others, they were merely pretences. Judge Robertson, delivering the opinion of the court, uses this language: "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 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." This case is distinguished in Walters vs. Farmers' Bank of Virginia, 76 Va., 12. A case of great interest to the profession, and one which has been much criticised.

A bill was filed against Mrs. Neal, a married woman, as the maker of a negotiable note, and her trustee, and Walters, her endorser, alleging that she was a married woman having separate estate, and praying that the separate estate might be subjected to pay it, or that the same might be paid by her or by her endorser. It turned out upon investigation, that Mrs. Neal, at the time of the filing of the bill, was the owner of no separte estate, and the question, therefore, arose whether the court, which could