*675UPON A REHEARING, NOVEMBER 16, 1911.
Whittle, J.,delivered the opinion of the court.
Upon a former hearing this court reversed the decree of the circuit court in so far as it refused to set aside the deed of February 14, 1894, from John W. Solenberger to Noah W. Solenberger, trustee for his wife Barbara, on the ground of actual fraud; being of opinion that the land in controversy was purchased and paid for by the husband, who procured the title to be conveyed to himself, as trustee for his wife, for the purpose of hindering, delaying and defrauding his creditors.
There is no occasion to depart from the conclusion reached by the court on that issue upon the evidence then before us. Since the last hearing the appellees have supplemented the former record by bringing up proceedings on an amended and supplemental bill in the principal case, and on an original bill filed by Joseph W. Solenberger against appellees. The trial court sustained demurrers to these several bills, save only with respect to the allegation common to both, that Noah W. Solenberger had rendered services for his wife in the management of her property, compensation for which was liable to payment of his debts. The cases were then ordered to be heard together, and a specific reference was made to a commissioner in chancery touching the question of compensation for alleged services of the husband. The decree also contained the usual provision, that the commissioner should report any other matter deemed pertinent by himself or required by any party in interest, and should certify the evidence to the court.
Upon this reference, Noah W. Solenberger and wife gave their depositions tending to sustain the bona fides of the deed of February 14, 1894. Their evidence was plainly irrelevant to the question referred to the commissioner, and was objected to on that ground. Indeed, the evidence *676related to a subject expressly eliminated by the court (in sustaining the demurrer) from the pleadings upon which the reference was ordered.
It is a fundamental rule of practice that the evidence must be directed and confined to the questions upon which the master is ordered to report. Ware v. Starkey, 80 Va. 191, 198; 2 Bar. Chy. Pr. 635; 2 Daniel’s Chy. Pl. & Pr. 1296.
A party can neither be expected nor required to present evidence to a tribunal upon an issue which it has no jurisdiction to pass upon. And, conversely, such party is not to be prejudiced by the transgression on the part of his adversary of a rule of practice, upon the observance of which depends the due and orderly administration of justice. Therefore, for the reason that the controversy concerning the validity of the deed was not within the pleadings, or issues referred to the commissioner, depositions on that subject were inadmissible.
The general direction found in the decree, that the commissioner shall report any other matter deemed pertinent by himself or required by any party in interest, does not warrant departure from the rule of practice adverted to, but it is merely intended to include matters which are germane and incidental to the questions specifically referred.
The depositions in question were excepted to and were inadmissible for the further reason that Noah W. Solenberger and his wife were incompetent witnesses under the statute (Va. Code, 1904, sec. 3346-a), which declares, that "Neither husband nor wife shall be competent to testify for or against each other in any proceeding by a creditor to avoid or impeach any conveyance, gift, or sale from the one to the other on the ground of fraud or want of consideration.”
The cross-error assigned by appellees involves the contention, that moneys expended by the wife for the support of the family stand on the same footing as moneys paid by *677the wife to the husband without promise on his part to repay 'the same. But the contrary principle is well settled — that money so expended by the wife is a proper set-off to the demand of the husband against her for services. The creditor of the husband can occupy no higher ground in such case than his debtor. Penn v. Whitehead, 17 Gratt. 503, 94 Am. Dec. 478; Catlett v. Alsop, Mosby & Co., 99 Va. 680, 40 S. E. 34.
For these considerations, we shall adhere to the decision reached on the former hearing.
Reversed in part.