all of them.

Rice vs. Tarver and others.

Such a case was held necessary for the sake of peace, and to prevent a multiplicity of suits. Upon the same ground the bill in Whaley vs. Dawson, was sustained. In the case before me, the plaintiff has a general right, to wit: the right to annul the assignment of all the debts of the defendants, and to be reinstated in his position as the creditor of them all. He sets forth a title in Equity to the entire schedule of notes, and asks a decree for account against all the parties on them. The rights of the defendants as debtors, are separate and distinct; yet are they not bound together by the one act of assignment, and thus tied as it were, to the plaintiff?

Let us now see how far the defendants are interested in the object of this suit. They are interested in the question, as to who shall be the owners of their notes respectively. A contest is in progress between the two Banks for the ownership of their notes; each institution claiming that they shall account to it. To this contest they are not indifferent spectators. The equities subsisting between them and the Bank of Macon, may, for aught that is known to this Court, make it necessary to them, that that issue be determined in favor of the Bank of Macon. In the event, for example, it may turn out that these defendants have set-off's against that Bank, not allowable against the Bank of Columbus. Or, on the other hand, equities may have sprung up between them and the Bank of Columbus, intervening the transfer and the institution of this suit, which ought to be heard and protected here; because not allowable if the decree should cast the ownership upon the Bank of Macon. Or, if in either case allowable, yet not without increased peril and inconvenience to them.

Let it be conceded that these defendants are not necessary parties, yet is it not manifestly convenient in every point of view, for them as well as for the plaintiff, that they all appear litigate with the other parties, and that by one decree all rights be settled. The rule as to parties, is founded in convenience more than in any thing else. And if, as is yielded, Chancery has a discretion as to parties, would it not subserve the ends of early and complete justice, to exercise it in this case in favor of the jurisdiction? For myself, I entertain no doubt about it. In answer to all these things it may be said, that the plaintiff could proceed against each of these defendants severally in the counties of their residence. So he may; but non sequitur that he must. A com

Rice vs. Tarver and others.

parison of the conveniences of many several suits, and one deciding all the rights of all parties, would cast the balance in favor of the one, so far as the defendants are concerned, largely in favor of one, so far as the plaintiff is concerned. The cost which would fall upon the defendants in the joint suit, respectively, would fall short of the cost of a several suit. It is not the spirit of Chancery to turn this complainant over to a multiplicity of suits. Chancery jurisdiction is not so restricted as to patronize litigation. It is the great jurisdiction of peace and repose. The strong ground upon which these parties ought to be retained, is the avoidance of a multiplicity of suits-a favorite object with Courts of Chancery. Ch. Kent in Brinkerhoff vs. Brown, 6 John. Ch. R. 151. The question might be pertinently put, cui bono? What good can grow out of a number of several suits here? What additional security to rights--what reduction of costs-what greater convenience? None! verily none. As a Chancellor, looking to the completeness, speed and convenience of the Chancery administration, and feeling the imperative obligation to avoid a multiplicity of suits, I cannot hesitate in my judgment, that as to the defendants in the counties of Jones and Houston, this bill was improperly dismissed.

[4] Independent of these general views, the decision of the Court must be reversed upon another ground. The non-resident defendants, as to whom the bill was dismissed, not having answered, the bill was taken as confessed as to them. They do not except to the jurisdiction. The exception is taken by their co-defendant, the Bank of Columbus. Now, the right to question the jurisdiction, is personal to the very parties over whom it is alleged the Court has no jurisdiction. Their co-defendants cannot plead it, or demur, or move to dismiss. The Court has jurisdiction in this case over the subject matter; it is over the persons of these defendants, that it is claimed it wants jurisdiction. A plea to the jurisdiction of the Court by reason of non-residence, is matter in abatement. It does not go to the merits. If sustained, the bill would be retained as to the other defendants, properly before the Court. If the jurisdiction be well founded as to them and the plaintiff, it is matter for the Court to determine, how far it will proceed to decree without the presence of other parties, when it comes to examine into the merits. Story's Eq. Pl. Sects. 232, 544. 1 Story's Reps. Harrison, Adm'r vs. Warren et al. 64. 11 Peters, S. C. Reps. 393. Let the judgment be reversed.

Leary vs. Durham.

No. 61. CALVIN LEARY, plaintiff in error, vs. HARDY DURHAM, defendant in error.

[1] Defendant, by deed, sold land in fee to Joel Lofton, and bound himself, his heirs, &c. to warrant and forever defend, the right and title thereof, to the purchaser, against the claim of himselfand all other persons whomsoever. Joel Lofton made a similar conveyance and warranty to Calvin Leary, the plaintiff: Held, That an action may be maintained by Leary, as assignee, against Durham, for a breach of the covenant, by showing that dower has been assigned out of the premises, since Leary came into possession, in favor of the widow of the grantor of Durham; notwithstanding the record failed to disclose that a writ of possession had issued in behalf of the Dowager.

Covenant. Tried before Judge SCARBOROUGH, in Twiggs Superior Court, April Term, 1848.

This action was predicated upon a covenant of warranty contained in a deed of conveyance of certain lands from the defendant in error to one Joel Lofton, who, by a subsequent deed, conveyed the premises to the plaintiff in error, with warranty. The covenant of warranty contained in the deed from Durham to Lofton, is in the following words, to wit: "And the said Hardy Durham, for himself, his heirs, executors and administrators, the said bargained premises unto the said Joel Lofton, his heirs and assigns, will warrant, and forever defend the right and title thereof, against themselves, and against the claim of all other persons whatever." The breach alleged was in the usual form.

Upon the trial it was shown, that the lot of land number 59, in the 10th District of Houston county, being one of the tracts of land conveyed, was subject to the claim of dower of Mrs. Braswell, as the late widow and relict of Robert A. Beall, deceased. That her dower in that lot had been admeasured and laid off to her under a writ of dower regularly sued out by the commissioners appointed for that purpose, and which was made the judgment of the Court.

The deeds from Durham to Lofton, and from Lofton to Leary, were read in evidence to the Jury. It was also proven upon the trial, that Durham was informed of the application for dower whilst the application was pending, and before final judgment

thereon.

The plaintiff then proved the value of the dower laid of

Leary rs. Durham.

assigned, and closed his case. No testimony having been offered on the part of the defendant, the Court below proceeded to charge the Jury, that the evidence submitted was not sufficient to authorize a recovery, when the plaintiff' submitted to a non-suit, with leave to move to set aside the same, and reinstate the case upon the following grounds:

1st. Because the Court erred, in determining that a judgment of a Court accepting and approving the acts of commissioners appointed to lay off and assign to the widow of the late Robert A. Beall, her dower in said tract of land, and making the same the judgment of the Court, was not of itself sufficient evidence of a breach of covenant of warranty, in the deed from Durham to Lofton, for said lot of land, without proving also an actual ouster or eviction of the plaintiff, who was tenant in possession, and defendant in said suit for dower, or proof of his surrendering the dower after said judgment on said suit for dower.

Because the Court erred in determining, that a judgment of a Court of competent jurisdiction unreversed, awarding an eviction of a defendant in a suit for dower, was not sufficient evidence of an ouster and eviction, without proof of surrender of dower after judgment therefor, to constitute a breach in a deed of warranty of title against all claims, without proving an actual ouster and eviction of the defendant in a suit for dower, or the surrendering up by him of the dower after a judgment against him for that purpose.

Upon hearing argument, the Court below over-ruled said motion, upon the following grounds:

1st. Because the evidence in said case showed no eviction proven; a judgment recovered, not being sufficient to prove it to the Jury on the trial before non-suit, nor was any evidence of that sort offered.

2d. That the deed of warranty from defendant, contains no warranty against incumbrances, and that dower is an incumbrance.

3d. That there has been proven no breach of covenant of warranty of title in fee, the fee being still in plaintiff, with an incumbrance of dower for life.

4th. That the proof given in said cause, showed nothing but an incumbrance, and covenants against incumbrances do not run with the land; and hence assignee cannot sue in this action under the deed and other proofs in this cause.

Leary vs. Durham.

To which decision of the Court below and the grounds thereof, the counsel for the plaintiff excepted, and assign the same for er

ror.

KELLY & GILES, for plaintiff in error.

S. T. BAILEY, for defendant in error.

JOHN M. GILES, for plaintiff in error, made the following points:

1. The Court erred in deciding that the evidence showed no eviction; a judgment recovered not being sufficient evidence of an eviction.

The evidence offered by the plaintiff in the Court below, to prove a breach of the covenant sued on, was an exemplification of a petition for assignment of dower in the Superior Court of Houston county, by Duke and wife, and such proceedings subsequently had, as are usual and according to the Statutes of the State, and proof of notice to the defendant of the pending of the application for dower.

The peculiar nature of the proceeding for assignment of dower, render, a subsequent dispossession in fact by writ of possession, unimportant. Commissioners are appointed, who with a surveyor enter upon the land, admeasure, lay off and assign the dower. They make a return which, if approved, is made the judgment of the Court, and this judgment is declared to be final and conclusive between the parties. Prince's Digest, 459. Is not the tenant in dower effectually and legally put in possession of her estate in the land, by the entry and assignment of the commissiouers, subsequently confirmed by the judgment of the Court? Is not the tenant in possession of the land, ousted by the entry and survey of the commissioners? Is not the land used and taken possession of by them, and is it not in custodia legis, until the final determination of the application?

But even if these proceedings did not actually, as well as legally oust the plaintiff, yet there are some respectable authorities which hold that actual expulsion from the land, by writ of possession, need not be shown, even where a recovery has been had in ejectment, but that the judgment of recovery is sufficient to prove a breach. Williams vs. Witherbee, 1 Aikin's R. 233, cited 2