Executors of Hunter v. Spotswood , 1 Va. 145 ( 1792 )

The Court, were just about to deliver an opinion, when it was observed by Mr. Marshall, that it did not appear in the record, or by the decree, that publication against Campbell, had been made in the Gazette, which ought to have been done, he being an absent debtor, and not served with the process — that without a publication, Campbell was no party to the suit: and therefore a decree, against persons called upon to pay his money, would be as improper, as if he had been personally decreed to pay it. And tho’ the Chancellor ordered, that publication should be *made, yet the execution of that order is not to be presumed, unless there be evidence of it in the record.

A certificate, was then produced from the clerk of the High Court of Chancery, stating, that due publication had been made; but this was not considered as sufficient, by ■a majority of the court.

In answer to the objection, it was argued, that no person could take advantage of this ■omission, but Campbell, who had not appealed.

But the court, for this reason only, reversed the decree, and sent back the cause to the High Court of Chancery.^*

* Tile Chancellor having corrected the error, by stating in his decree, that evidence of publication was proved to him, the cause went back to the Special Court of Appeals, where the decree was affirmed in toto. — Note in Original Edition.