suit in chancery, because they have a full and sufficient remedy at law. 1863. January Term. Jones V. & others. We deem it unnecessary to decide whether this put properly in issue the fact as to the necessity of a dis- Bradshaw covery; 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. 1963. January Term. Jones V. Bradshaw & others. 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 Circuit 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. 1. As actions at law in the County courts are cognizable only at the quarterly terms. so motions to set aside any of the proceedings in the office in such actions are cognizable only at a quarterly term. And therefore the "preceding vacation" referred to in the Code, ch. 171, § 51, p. 715, means, in its application to such cases, the interval between the quarterly terms of the court. 2. A power of attorney to confess a judgment may be executed before the action is brought. 3. A judgment may be confessed either in court or in the clerk's office, by an attorney in fact, though the attorney is not a lawyer. 4. When a statute changing the common law is repealed the common law is restored to its former state. On the 21st day of January, 1857, the Insurance Company of the Valley of Virginia sued out from the clerk's office of the County court of Frederick a summons in debt against John W. Barley and L. E. Swartzwelder, for $571.00, with interest, and $2.63 costs of protest. On the same day these defendants executed a power of attorney, by which they authorized William L. Bent to confess a judgment for them in a suit pending in the clerk's office of the County court of Frederick, for the amount of the debt, interest and costs of protest. And still on the same day the attorney did confess the judgment, and filed the power with the papers in the office. 1863. January Term. 1863. January Term. Ins. Co. Valley of Virginia V. Barley's adm'r. On the 13th of February Barley gave notice to the Insurance Company that on the first day of the next March term of the County court of Frederick he should move the court to set aside the judgment confessed in the office, for, among other reasons, the following: 1st. Because the power of attorney was executed before the suit was brought. 2d. Because William L. Bent was not an attorney at law, and an attorney in fact cannot confess judgment for his principal. 3d. Because if an attorney in fact could confess judgment in open court, only the defendant himself can confess a judgment in the clerk's office. The Insurance Company appeared at the March term of the court, and made defence; and the motion was continued by consent to the next June term. At the June term the Insurance Company filed a plea of estoppel to the first ground of objection stated by Barley; to the allowance of which he excepted. On the hearing of the motion, the plaintiff offered to introduce a witness to prove that the power of attorney under which the judgment was confessed was executed before the suit was brought. But the court refused to permit the plaintiff to examine the witness for that purpose; and he again excepted. It appeared, upon the hearing of the motion, that William L. Bent, at the time he made the confession of judgment, was not, and never had been, an attorney at law; that he produced the power of attorney to the clerk of the court, and confessed the judgment under it; that there was no proof before the clerk of the execution of the power; but on the trial of the motion it was admitted that it was executed by Barley and Swartzwelder on the day of its date; and it was filed by the clerk with the papers. The court refused to set aside the judgment; and the plaintiff again excepted; and applied to the Circuit court of Frederick county for a supersedeas, which was accorded. And at the June term of the court for 1859, the suit having been revived in the name of Barley's administrator, the Circuit court reversed the judgment of the County court and set aside the original judgment. And thereupon the Insurance Company obtained from a judge of this court a supersedeas to the judgment of the Circuit court. Byrd, for the appellant: The County court of each county is, in respect of all its terms, monthly and quarterly, a unit under the Constitution and laws of Virginia, and at the former it has the same general jurisdiction, in respect to the trial and determination of motions, that it has at the latter; except as to that allowed by the 5th section of chapter 167, p. 640 of the Code of Virginia, which has no relation to or bearing upon this case. It is therefore respectfully submitted whether, under the terms of the 51st section of chapter 171, p. 353 of said Code, pursuant to which it is professed to have been issued, the notice of the 13th of February was not too late to authorize, on any ground whatever, the exercise of the authority conferred by that section upon the courts of this Commonwealth. Assuming for the purposes of the argument, contrary to what we allege to have been the fact, viz., that the power of attorney was executed before the institution of their suit against John W. Barley and L. E. Swartzwelder in said County court, we have to remark: That the right of parties to make and accept confessions of judgment, and thereby to terminate litigation between them, contra-distinguished from the legal means of making its exercise effectual, is not necessarily dependent upon the existence of any express legal provi 1863. January Term. Ins. Co. Valley of Virginia V. Barley's adm'r. |