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alone take jurisdiction of the cause on the allegation of her ownership of separate estate could retain it to enforce what was clearly a legal, and not an equitable, right of the complainant against Walters. This case presents the question plainly. The fact averred which gave the court jurisdiction is found to have been not a fact, and the legal right sought to be enforced is not against the same defendant against whom equitable rights were averred in the bill. The case would have been stronger if, after it was shown Mrs. Neal was possessed of no equitable estate, some legal right (were it possible) was discovered by the complainant against her; but here the jurisdictional fact was averred as to one defendant, and the retaining fact or the legal right to be enforced, was averred as to another defendant, Walters her endorsee.

“The principle,” says Judge Staples, in delivering the opinion of the court, “is almost universal that jurisdiction of the subject matter does not depend upon the ultimate existence of a good cause of action in the particular case-being once properly and lawfully acquired, no subsequent fact can defeat that jurisdiction.” And distinguishing this case from Jones vs. Bradshaw, supra, the judge further says: "The rule can have no application to a plaintiff who in the bona fide assertion of an equitable claim invokes the jurisdiction of a court of equity, but from some cause developed in the course of the investigation: fails in establishing his title to the specific relief claimed in his bill. In every instance the court must determine upon the facts and circumstances of the particular case—whether it is better to leave the parties to their legal rights and remedies, or to go on and end the litigation, by giving complete and final relief in the cause.” If the court which decided Walters vs. The Bank, supra, had had the case of Jones vs. Bradshaw before it for decision, the decision would have been the same, for in the latter case the bill was clearly an attempted fraud on the jurisdiction of the court.

But the case of Walters vs. The Bank clearly overrules the dictum of Judge Robertson above quoted, for the point set

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forth in the above passage from Judge Robertson's opinion was the exact question raised in Walters vs. The Bank, and was necessary to its decision.

The case of Stearns vs. Beckam, 31 Gratt., 379, and the elaborate opinion of Judge Burks, may be cited as sustaining .analogously the principles of Walters vs. The Bank, that though the court may refuse to specifically execute a contract for the sale of land at the instance of the vendees and for the reason that the proofs have disclosed a lack of equity, it will decree compensation. “Where the bill," says Judge Burks, "is framed with a double aspect and contains a prayer for alternative relief, if the court is unable to execute the contract, it will go on to decree the repayment of the purchase money.”

"In Virginia this doctrine may be regarded as now firmly settled.” That failure of proof of the averments of a bill does not justify the dismissal of the bill, or justify the conclusion, therefore, that the court has no jurisdiction where the bill itself shows an equity, is well illustrated by the case of MIcComas vs. Easley, 21 Gratt., 23, where the purchaser of real estate filed his bill for the specific performance of a parol contract for the sale of the land, the defendant answered the bill alleging a different contract, and the evidence sustained the answer, and the court held that as the complainant had failed to prove his contract the bill might be dismissed, or he might elect to have the contract as proven by the defendant enforced, or have it rescinded. It is true that being a bill for the specific execution of a contract, it was an application to the sound discretion of the court, a judicial discretion, not as has been said to be exercised in an arbitrary and capricious way, but to be exercised and controlled by the established doctrines and settled principles of equity. But the point we are discussing is none the less plain because the question of the specific execution of a contract is controlled by a judicial discretion. Is the jurisdictional question less plain in this case on that account? A good carise of action is alleged in the bill, it is denied in the answer, and the proofs show that the averments of the bill have not been sustained—if so, has the court jurisdiction of the cause? Is jurisdiction to be sustained by the averments of the bill, or by the proof of the facts so averred? The facts so averred are proven to be false and the jurisdiction in the case can only be sustained, therefore, by the averments and the averments alone, of the bill.

We conclude, therefore, that the averments of the bill are alone regarded as sufficient, to maintain the jurisdiction of the court, provided the complainant in good faith invokes its jurisdiction. If, however, the chancellor finds, or has good ground to believe, that his court is being used as a fraud upon the common law courts, or for the purpose of depriving the litigant of his legal rights, such jurisdiction must and will be denied. Whether this conclusion is maintainable upon the strict and rigid rules of legal logic may be open for discussion, but it at least marks the resistless march of the great system of equity jurisprudence, which, discarding legal technicalities and discountenancing the multiplicity of suits and the law's delays and reaching after, though it may be rarely attaining, the perfect justice, whose seat is the bosom of God, will hold the parties in its grasp whenever impleaded until the real right of the cause, whether equitable or legal, is finally and completely adjusted.

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