to the legality of the appointment of a receiver, and is the only question now to be decided. "The appointment of a receiver is a matter resting in the discretion of the court." 2 Dan. Ch. Plead, and Prac. 1715. The same eminent writer says (next page): "The most ordinary cases, in which receivers are granted by the court, are those in which the suit arises out of claims by parties having equitable interests in the property, the subject of litigation. In such cases the court wil! appoint a receiver, for the purpose of protecting the property, till the question between the parties shall have been determined.” That is precisely this case. Again, "a court will grant a receiver, at the instance of a second incumbrancer, in all cases in which the first incumbrancer is not in possession of the property," as is the case here. Ibid, p. 1718. The court is of opinion, under all the circumstances disclosed by the record, the complication of the matters litigated, the probably protracted litigation, the insufficiency of the property of defendant to pay his debts, and the just claims of the 151 creditors to have the *rents and profits applied first to keep down the interest, and then to the reduction of the principal, the case is one eminently proper for a receiver. But it is objected, that the appointment of the sheriff of the county a receiver in vacation was not within the jurisdiction of the court, and could only be done in open court. The court is of opinion that the power to appoint a receiver is incidental to the power to award an injunction. And as the latter may be awarded by a judge in vacation, so may the power to appoint a receiver as incidental thereto, in a proper case, be exercised by a judge in vacation. In this case the sheriff of the county was appointed a receiver, which was virtually assigning to him in his capacity of sheriff the duties of a receiver, to be discharged under his responsibilities as sheriff. No new bond was required to be given and no special qualification was necessary to be required of him in his character of receiver, but he was responsible for the discharge of the duties assigned him as receiver under his official bond and qualification as sheriff. JUDGE BALDWIN, in Beverley v. Brooke and others, 4 Gratt. 187, 212, held that the appointment of a receiver is in the nature of an injunction. Kerr on Receivers says (page 12): "It operates as an injunction. An order for an injunction is always more or less included in an order for a receiver. It is not necessary if a receiver be appointed, to go on and grant an injunction in terms." The power to appoint a receiver is an important and inherent power of a court of equity, and though it should be exercised with caution, it will be readily conceived that occasions may and do occur, when its exercise in vacation may be important to the ends of justice; and under the cir152 cumstances we do not think it was improvidently or erroneously exercised in this case, or that the appellant has any just cause of complaint on that ground. The court is further of opinion, that there was no error in directing the receiver to collect the rents, which were in arrear and uncollected. It appears from the recitals of the decretal order, appointing a receiver, that the cause came on to be heard in part, upon executions against the said G. W. F. Smith, and the returns thereon, which were a charge upon the rents in arrear. And it was proper that the same should be applied to prevent the swelling of the debt by the accumulation of interest, which already greatly exceeded, prima facie at least, the entire estate of the appellant, real and personal. In Kerr on Receivers, page 13, it is said, “if tenants are in possession of real or leasehold estates over which a receiver is appointed, the order should direct them to attorn, and pay their rents in arrear and the growing rents to the receiver. See also 2 Daniell's Plead. & Prac. 1737. And accordingly we find in the order for receivers of real estate, the tenants of the estates are directed to attorn, and pay the rents in arrear and growing rents to such receiver. (Seaton's Forms of Decrees, p. 222.) Upon the whole, the court is of. opinion to affirm the decree of the circuit court, with costs. The other judges concurred in the opinion of ANDERSON, J. DECREE AFFIRMED. 153 1. *Vaiden & als. v. Stubblefield's Ex'or. January Term, 1877, Kichmond. Absent, CHRISTIAN, J.* Pleading-Misjoinder-Method of Objecting. In this country the rule is well settled, that in cases of misjoinder of parties as plaintiffs in equity, the objection must be made by demurrer if the defect is apparent on the face of the bill, or by plea or answer, if the defect does not so apear; and unless so made, the objection will not avail at the hearing, if a decree can be rendered without prejudice to the rights of parties. 2. Same-Same-Time of Objecting.-In a bill by devisees and legatees against the executor, some of the legatees who were infants had been paid their legacies. The executor, of course, knew of these payments, the other plaintiffs probably did not know. It was therefore the more incumbent on him to make the objection in some form, and in an early stage of the proceedings. If he had done this, the plaintiffs might have dismissed their suit and commenced a new one in the name of the proper parties, or might have amended their bill by striking out the names of those improperly joined and making them defendants, if so advised. 4. recover, and the bill be dismissed as to the others | bate in the same month, and Thomas H. without costs. Wilcox qualified as his executor. By his will Executors-Trust Funds-How to De- he directed his executor to sell his land; and posit.*-An executor qualifies in July 1858, and he proceeds in his administration of the estate; so that in July 1861 he has collected all the assets, paid debts and legacies, leaving in his hands at that time but $2,305.24. He is then informed that there are still some debts of his testator unpaid, though not informed as to the amount or the creditors. He deposits the amount in his hands in bank in his own name, along with his own money; and he, from time to time, checks upon the money standing to his credit for his own purposes, and *from time to time, down to March 1864, makes deposits of his own money, so that he probably has at any time standing to his credit in bank a sum more than the amount of the assets deposited in bank by him; but it is Confederate money. Whether he continued his deposit after March 1864 does not appear. HELD: That by depositing the assets in his own name, mingling it with his own money, he became a debtor to the estate for the amount so deposited by him, and must account for it. he, among other things, gave to his widow the interest and profits of his land for her life, and at her death the principal was to be equally divided among his children and grandchildren; the grandchildren taking the parent's share. And after giving several small pecuniary legacies to some of his grandchildren, he gave the residue of his personal estate to his children and grandchildren in the same way. The parents of some of the grandchildren to whom the small legacies were given, were still living. 154 This was a suit in equity in the circuit court of Charles City county, brought in April 1868, by Henry D. Vaiden and Sarah M. his wife and others, devisees and legatees of John S. Stubblefield, dec'd, against Thomas H. Wilcox, executor of said Stubblefield, and on his death revived against his executor, for a settlement of the administration account of Wilcox upon the estate of said Stubblefield. John S. Stubblefield died in July 1858, leaving a will, which was admitted to pro*Executors-Trust Funds-How to Deposit.—In Parsley v. Martin, 77 Va. 383 and Greg ory v. Parker, 87 Va. 451, it was held that where in good faith a guardian deposits his ward's money in a bank he has reason to regard as solvent and wherein he has no funds of 's own, he is not liable for loss from failure of the pank or from the total destruction of currency of ine state by the war. In Parsley v. Martin, the court says: "Cases in which a fiduciary has been held to responsibility for the loss of the mosey of his ward or of an estate which had been deposited in his own name, have all been those in which the fiduciary fund was mingled with his own private or personal funds or used by him for his own purposes or where the deposit was made in depreciated money as compared with the money received. This was the case this the vice which infected the case of Vaiden v. Stubblefield, 28 Gratt. 153." See also Pidgeon v. Williams, 21 Gratt. 251. Same-Same-War Interest.-In Bennett v. Clevinger, 78 Va. 12, the court, holding that an administrator residing during the late war at Winchester, was not liable for interest on funds of the estate in his hands during that period, said: "In the case of Barley v. Garnett, decided by this court but not reported, the court below disallowed war interest and this court affirmed the case on that point, though it was reversed on others. In the case of Stamper v. Garnett, 31 Gratt. 550, the same rule was followed, and that case was reversed upon a different ground. In the case of Vaiden v. Stubblefield, 28 Gratt. 153, which was an appeal from another border county, war interest was disallowed by this court." See also Lacy v. Stamper, 27 Gratt. 65. The executor seems to have proceeded very promptly to collect the debts due to the estate, and to sell both the land and personalty. The land sold for $9,000, the interest on which he paid to the widow until her death in January 1861; and he very soon 155 thereafter distributed *that fund among the parties entitled. The sales of the personalty and debts collected, after payment of debts, &c., amounted to $5,665.04; and he seems to have paid to legatees $3.359.80, leaving a balance in his hands in July 1861, of $2,305.24. This sum, the executor states in his answer, he then had in his hands, and he was prevented paying it over at once to the legatees, by information he received that there were several bonds outstanding in the county of Surry in which Stubblefield was bound. After speaking of two debts in that county, of which he was for some time in ignorance, in which Stubblefield was bound as surety of E. P. Crenshaw, who had married his daughter, and which had been satisfactorily adjusted after much trouble and anxiety, he says, that being at the house of Wm. R. Wilson, in that county, and having expressed his satisfaction at the settlement of the last of these debts, and the belief it was the last debt in the county of Surry for which his testator was bound, Mr. Wilson replied, "No, sir, you are not through; I know of three or four bonds for which your testator is bound. I will do you the favor to procure a statement of them and send them to you." Your respondent earnestly and particularly requested Mr. Wilson to do so at the earliest possible period of time, expressing at the time his great anxiety to rid himself of the estate of his testator, especially in view of the troubles then rapidly being developed. The executor states at great length his actings in the administration of his testator's estate, and the grounds on which he claims exemption from liability for the amount in his hands. These grounds refer to the condition of the country, and especially of the part of the country in which he lived, and had to conduct his administration. He 156 said that he deposited *the money in the Farmers and Exchange Bank in Richmond in which he deposited his own; and that he always had in these banks much more than the whole amount of assets in his hands: which was as safe as any personal security he could have taken for it in Charles City. It appears, however, that he had no separate account in these banks as executor; but all moneys were deposited to his individual credit; and further, that though he had at all times to his credit in these banks more than the amount of the assets of Stubblefield's estate in his hands, he from time to time drew out and deposited, so that in 1864, though he had a large sum of money in the banks, it was in fact Confederate money. In November 1868 the accounts were referred to a commissioner; and in September 1871 he returned his report. In the account settled by the commissioner the executor is charged with the sum of $2,305.24, as of the 15th of July 1861; and this is the only charge against him; and this is distributed among the four surviving daughters and the children of a deceased daughter. To this report the executor of Wilcox excepted: 1st. On the ground that the executor should not have been charged with the sum of $2,305.24, which perished on his hands. 2d. That he should not be charged with interest, certainly not until the end of the war; and 3d. That the executor was a lawyer, and the evidence | showed that he rendered various and valuable professional services to his testator's estate, for which no compensation was allowed him. The cause came on to be finally heard on the 24th of September 1872, when the court sustained the first exception of the executor to the report, and dismissed the bill, though without costs. And the plain157 tiffs *thereupon applied to this court for an appeal; which was allowed. In this court the question was raised by the appellee, whether the bill should not have been dismissed for the improper joinder of parties; the children of some of the living daughters, whose legacies had been paid, having been joined as plaintiffs. 546, 158 557; Trustees of Watertown v. Cowen, 4 Paige R. 510; Harder v. Harder, 2 *Sanf. Ch. R. 17; Newhouse v. Miles, 2 Alab. R., N. S., 460; Ellicott v. Ellicott, 2 Mary, Ch. R. 468; Bunce v. Gallagher, 5 Blatch. R. 490; Story Ch. Plead., sec. 188, 544. There are several well considered English cases which hold that notwithstanding a misjoinder of parties plaintiff, the court permits a decree at the hearing when it appears that justice can be done to all the parties. In Rafferty v. King, 15 Eng. Ch. R. 604, 620, LORD LANGDALE, in adverting to the objection that one of the plaintiffs had no interest in the suit, said: "I think it is now too late. If the objection had been stated in the answer, the plaintiffs might have obtained leave to amend their bill and make John Rafferty a defendant instead of a coplaintiff. In such a case as this, when the objection is reserved to the last moment, and even till after argument on the merits, I ought not to allow it to prevail." See also the cases cited in a note to that case, and Lambert v. Hutchinson, 13 Beavan R. 277; Dickenson v. Davis, 2 Leigh 401. In the case before us the plaintiffs alleged to be improperly joined were infants at the time their legacies were paid, and nearly all of them so continued when this suit was brought. It is highly probable the other parties knew nothing of these payments. The defendant of course knew all about them. It was therefore the more incumbent upon him to make the objection in some form in the court below, and at an early stage of the proceedings. Had he done so, the plaintiffs might have dismissed their suit, and commenced a new one in the name of proper parties, or they might have amended their bill by striking out the names of those improperly joined, and Lyons & Stern and B. W. Lacy, for the ap-making them defendants, if so advised. pellants. Wm. Green, for the appellee. STAPLES, J. The first question is as to the misjoinder of parties. It is contended by the counsel for the appellee, that two or more of the plaintiffs, having been paid their respective legacies, have no interest in the suit, and are therefore improperly joined as plaintiffs; and this objection may be taken by demurrer or plea, or even at the hearing. Admitting that the point would be fatal if taken in due time, the question arises whether it can be made for the first time in this court. In this country, it is believed, the rule is well settled, that in cases of misjoinder of parties as plaintiffs in equity, the objection must be made by demurrer if the defect is apparent on the face of the bill, or by plea or answer, if the defect does not so appear; and unless so made, the objection will not avail at the hearing, if a decree can be rendered without prejudice to the rights of parties. If the misjoinder cannot materially affect the propriety of the decree, the court will not regard it at the hearing, if the objection has not been made in the pleadings. Livingston v. Woodworth, 15 How. U. S. R. This, however, is unnecessary in the 159 present state *of the case, as a decree may be entered in favor of such of the plaintiffs as are entitled to recover, and the bill be dismissed as to the others with or without costs. The main ground of controversy is in respect to the sum of $2,305.24, received by the executor and never accounted for by him. This sum is part of the assets of the estate with which the executor charged himself in his settlement made in 1859. Being thus in possession of the fund, the burden is upon him to establish the ground of his exemption from liability. His defence is that he could not safely distribute all the assets, because there were unsettled claims against the estate for a long period, and when at last these were adjusted, the condition of the country and of the legatees preclied a settlement, until finally the fund perished by the results of the war. It appeared that the last claim ever asserted against the estate was settled in 1861. The executor in his answer states that a Mr. Wilson informed him that he knew of three or four bonds for which the estate was bound, and that he (Wilson) would procure a statement of them and send it to the defendant. Mr. Wilson did not say who held the bonds, nor did he name the amount. The executor does not appear to have made any enquiry on the subject. This was the first and the last ever heard of the bonds. No statement was ever furnished and no claimant ever appeared. This is the only excuse given by the executor for his delay in settling up the estate, and for his failing to pay for so many years to the legatees, funds to which they were justly entitled. The executor had a plain course before him, either to require refunding bonds, or to lend out the money upon good security, bearing 160 *interest, or to invest it under the direction of a court of equity. There is no foundation for the assertion that the legatees were so much scattered after the war commenced, the executor could not pay them. It is in proof that nearly all of them were in reach of the executor as late as the year 1862, and some of them were so down to the close of the war. In order fully to understand the ground upon which the executor bases his defence, it may be better to give his statement in his own words, made in his answer. It is as as follows: "The money now sought to be recovered of him by the plaintiffs was then, to wit, on the 13th March 1861, in the Farmers and Exchange Bank of Va. at Richmond, in the very same place where your respondent kept his own money, and where he had at that time to his credit, more money than was due his testator's estate, besides at least three thousand dollars in his house, and continued from time to time to make deposits until he had to his credit an amount exceeding forty thousand dollars." ant, collected during the war, and was not the money collected by him in 1859 for the estate, nor even a substitute for that money. But this is not all. The account shows a balance of $19,753.89 to the credit of the defendant in March 1864. What has become of that balance? There is nothing to show, and we are given no information beyond what is furnished by the account. The war did not close till a year afterwards. In the meantime the defendant was a refugee, and his section overrun by the enemy. He must necessarily have used the greater portion of the fund to supply his individual wants and necessities. At all events we are entirely in the dark as to the state of the account at the termination of the war in April 1865. The account with the Exchange Bank is liable to the same criticism in every respect. This account shows a balance of $1,821.98 to the credit of the defendant on the 1st March 1862; but whether it is March 1862, or 1863, or 1864, does not distinctly appear. The reference is probably to March 1862, when the account closes. What became of this balance we are not told. Whether it was designed or not, we are left to infer that the fund remained in bank three *years without use, and was finally lost by the result of the war. 162 But it may be conceded that the defendant deposited the money in bank, that he never withdrew it, but it remained there until gradually converted into Confederate currency, and finally perished on his hands. All this may be conceded, and yet it does not materially help his case. As has been seen, the defendant kept no separate account of the trust funds, but mingled them with his own money, checking indiscriminately upon the two. All the cases agree that It will be seen that the defendant does not a fiduciary who makes investments, or deposits state the year in which the deposit was made; trust money in his own name, without designor does he say how much of the trust money nating in some way, or describing it as the was deposited in each bank. All that is said is, property of the trust, will be held liable for that the funds were in those banks on the 13th any loss that may accrue. One of the reasons March 1861. The only evidence offered in sup- for this rule is, that the fiduciary would otherport of this statement is the defendant's ac- wise be able to throw upon the cestui que trust count with the Farmers and Exchange Banks the hazards of his own business, by desigrespectively. These accounts, however, show nating the fund upon which the loss has only his individual transactions with those fallen as his (the cestui que trust's), whether banks: they do not show any deposit of trust it was or was not so in reality. Vol. 2, part funds. There is not in either of them an item 2d, page 1805, Leading Cases in Equity (ed. or figure from which it can by possibility 1877). The cases of Harman v. Davis and be inferred that the money to the defend- Pidgeon v. Williams, 21 Gratt. pages 194, 251, ant's credit in those banks was in any man- do not affirm a different doctrine. In the first ner connected with the funds of the estate. named case the money collected was exThe account with the Farmers Bank com-clusively Confederate currency, collected with mences in 1848, and closes in March 1864. The various balances to the credit of the defendant, from time to time, were exhausted by checks, and these were succeeded by other deposits; so that although the defendant was perhaps at no time without funds on deposit down to March 1864, yet the character of that fund had wholly changed by the last mentioned period. The money to his credit in March 1864, or at the close of the war, was not the money, nor the same kind of money to his credit in March 1861. The money which perished by the results of the war was Confederate currency, belonging to the defend 161 the approbation of all the parties, and the larger part of it duly distributed. The balance on hand the court directed its commissioner to hold until it was called for. The commissioner deposited it in bank in his own name. He had no other funds in bank, and no part of the deposits was ever used or withdrawn by him, except to pay the parties upon orders of the court. The controversy then pending not having been settled during the war, the balance of the fund in bank of course perished with the close of the 163 struggle. This court, *while recognizing the principle of law in respect to fiduciaries already stated, was of opinion it 1. had no application to that case. The com- | 165 And so in Pidgeon v. Williams, the money deposited was Confederate money-it was not placed to the individual account of the attorney, but to his collection account-thus showing a purpose to keep the client's money separate from his own. These and other facts were deemed sufficient to prevent the application of the general rule already adverted to; but the whole court was of opinion that if the attorney had mingled his client's money with his own, or deposited it in bank upon his private account as his own money, this would be evidence of an appropriation to his own use, and his relation to his client would henceforth be that of debtor and creditor, and not that of bailor and bailee. from *Blair & Hoge v. Wilson. January Term, 1877, Richmond. Checks-Conditional Payment-Question for Jury.-While the giving of a check by a debtor to a creditor is generally presumed to be only a provisional or conditional payment of the debt for which it is given, yet such check may by agreement of parties, be given and received in full payment and absolute discharge and satisfaction of the debt; and whether it was so given and received is a question of fact for the jury. 2. Evidence Checks Presumptions. -A check may be offered in evidence under the money counts; and if there is no other evidence in the case, it is of itself sufficient to entitle the plaintiffs to recover on those counts: yet it is only prima facie evidence of money lent, paid and advanced, or had and received; and when it is proved that no money had come to the hands of the defendant, the presumption raised by the check is rebutted, and no recovery can be had on those counts. 3. Pleadings—Assumpsit-Payment.-Where an action of assumpsit is brought for goods sold and delivered, the declaration filed contains only the common counts, the bill of particulars is filed, and the only count in the declaration to which the evidence applied, was that for goods sold and delivered. If it is shown that the goods were absolutely paid for by a check, the demand upon the account is thereby extinguished, and there is no count in the declaration upon which the plaintiffs can re cover. -Reversal.-Where the facts proved are not plainly insufficient to warrant the verdict of the jury, the court did not err in refusing to set it aside. Quaere: Whether under the evidence in this case the action could have been maintained on the check if it had been specially declared on. These cases, it is thus seen, afford no sort of authority to the executor in the present case. He collected the assets of the estate in a sound currency, deposited it in bank to his own private account, using the fund to advance his credit, and appropriating it to his individual purposes, as his convenience or his necessities required. It is very true that he deposited other funds from time to time, in place of what was withdrawn; but this was only done because it suited him, 4. Appeal-Verdict Contrary to Evidence · as it suited others, to use the banks as depositories for his private funds. If the money to the credit of the defendant proved as valuable as gold, these legatees could not have claimed any part of it, or 164 derived any *advantage it. Stripped of all its fictitious surroundings, the transaction presents the simple case of a fiduciary or his representative seeking to Guy & Gilliam, for the appellants. throw upon the legatees the loss of his own *Ould & Carrington, for the appellee. Confederate currency. It is not intended to BURKS, J. This case is before us on impute to this executor any dishonest pur- a writ of supersedeas awarded by one of the pose. He is represented as a gentleman of high judges of this court to a judgment of the cirsocial position, and of undoubted integrity; cuit court of the city of Richmond, rendered but we are asked to accord to him, upon in an action of assumpsit instituted in said his own unsupported answer, a measure of indulgence never allowed any fiduciary. No Payment Debtor Giving Check to Credcase decided by this court in reference to itors-Intention.-That the giving of a check by Confederate transactions, has gone to the extent of sustaining the defence made here. My opinion is to reverse the decree of the circuit court, and to enter a decree for the balance reported by the commissioner. In respect to the claim for compensation on account of professional services rendered the estate by the executor, the evidence does not show any such service of this sort, beyond the ordinary duties of an executor, as entitles the defendant to compensation. It is therefore unnecessary to decide the question raised by the learned counsel for the defendant, as to the right of an executor to charge the estate for services rendered in the capacity of counsel. The case is fully stated by JUDGE BURKS in his opinion. 166 69; a debtor to a creditor is generally presumed to be 18 MONCURE, P., and BURKS, J., concurred in 84 Va. 775, the principal case is cited for the propo the opinion of STAPLES, J. ANDERSON, J., dissented. DECREE REVERSED. sition that "whilst the mere taking a negotiable security, payable at a future day, does not, unless so agreed, operate as a payment of an antecedent debt, |