OInrnFll ICam i»rl)O0l ICtbrarii Maraliall lEquttg (EoUerttnn (litft of E. 3. MacBljall. ICffi. iH. 1B34 CORNELL UNIVERSITY LIBRARY 924 084 263 791 The original of tliis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084263791 PEINCIPLES EQUITY DEAPTING; APPENDIX OF FQRMS. HUBERT L S, B.A., OF THE MIDDLE TEMPLE, ESQ., BARRISTER AT LAW, AUTHOR OF "PRINCIPLES OF CONTETANCING EXPLAINED AND ILLUSTRATED.' LONDON : BUTTERWORTHS, 7, FLEET STREET, ILato ^uilisi)rt3 to 11)8 ®ueen'8 most raceltent iSIaicBtg ; HODGES, SMITH & CO., GRAFTON STREET, DUBLIN. 1865. LONDON: PRINTED BY C. ROWOaTH AND SONS, BELI. YARD} TEMPLE BAR, PREFACE. The design of this Work is to explain the Rules relating to the manner of framing Equity Pleadings. Copious citations of the pleadings and decisions in Reported Cases have been made, with a view to illustrate these Rules, and render the Work (with the help of the Index) a book of reference in indi- vidual cases. The Author trusted, by this plan, to avoid the necessity for the collection of numerous Precedents ; but feeling that the Student might desire something more, he has furnished in the Appendix Precedents of completed Pleadings (Bills, Interrogatories, Pleas, Answers and Demurrers) adapted to some of the cases most commonly recurring in Practice. It was intended to have included in this Appendix also Petitions and other Forms, and to have accom- panied the Precedents by observations treating of their requisite contents and variations according to circumstances ; but the Author found that the exe- cution of this intention would have involved the a2 IV PREFACE. discussion of so much of Equity Practice, Pleading, and Jurisprudence as to demand a separate Volume, and he was therefore obliged to defer for awhile the publication of a complete series of Equity Precedents and Observations. Meantime, however, what has been already done will, it is trusted, be sufficient to effect the main object — viz., to explain and exemplify the Principles of Equity Drafting applicable to Proceedings under Bills. These Principles govern alike all Pleadings in Chancery, and must also, the Author believes, regulate in great measure the proceedings under the equitable jurisdiction just conferred on the County Courts ; and he therefore indulges the hope that his Treatise and Forms may prove useful not only to Students for the Bar, but to Solicitors practising in the County Courts. HUBERT LEWIS. 30, Chanceet Lane, July &th, 1865. TABLE OF CONTENTS. PAGE INTRODUCTORY CHAPTER 1 BILLS. CHAPTER I. Facts mnst be stated, and not merely conclusions of Law or Equity, which will not generally identify the Case, or separate the Issues of Law and Pact . . . . . . . . . . 12 CHAPTER n. The Statements of Facts must not be yague (that is, ambiguous, in the altematiTe, or inconsistent or argumentative), but must set forth with substantial certainty the Facts necessary to show that some and what Decree is proper . . . . 72 CHAPTER m. The ATerments of Facts must be Positive and Direct, so far as they are essential to the Rights of the PlaintiEE and within his Eiiowledge .. .. ,. .. ,. .. .. 115 CHAPTER rV". Facts must be stated with sufficient Particularity for De- fendant's information, lest he be taken by Surprise . . 1 18 CHAPTER V. The Plaintiff must indicate clearly the Points and Relief on which he relies, for the guidance of the Court, and lest the Defendant be taken by Surprise . . . . . . . . 167 CHAPTER VI. What Facts must be stated . . . . 186 CHAPTER VIL Charges and Pretences 201 Vi CONTENTS. CHAPTER vrn. PAGE ANSWERS AND PLEAS 214 CHAPTER IX. AMENDED BILLS 233 CHAPTER X. DEMURRERS 247 APPENDIX OF FOEMS. Original Bills 259—328 Supplemental BUI . . . . . . . . . . . , . . 323 Bill of Revivor , . . . . , . . . . . . , _ 329 Commencements, &c. of Bills and Informations . . 330 332 Commencements of Bills not original . . . . . . . . 332 Interrqgatorieg 532—337 Demurrers 338—340 Pleas 340—344 Answers 345—349 Index to Tkbatise 35^ Index to Pokms 37^ TABLE OF CASES. PAGE Allen V. Spring 238, 239, 240 Allsager v. Johnson . . . . 36 Armitage v. Wadsworth . . 94 Att.-Gen. o. Corporation of Poole , . 39, 254 —^—^ V. Jackson . . . . 254 • v. Mayor of Norwich 24, 75, 190 ■!>. Whorwood .. 132 Attwood V. . . 46, 68, 199 •». Small 34,35,41,46, 135, 149 Austin V. Chambers . . . . 147 Bainhrigge v. Moss Baker v. Athill V. Bradley V. Harwood V. Welton Bailey v. Kenrick Balls V. Mnsgrave Barber v. Barber Baring v. Nash Barkworth v. Young Barnes v. Taylor Barrs v Fewkes Barton v. Blakemore Barwell v. Brooks Batchelor v. Middleton Benfield v. Salomons Bennett v. Neale V. Vade .. 45,78, 113 ..218 130, 156, 179 26, 27, 28, 29, 31, 109 81, 88 .. 225 .. 182 252, 253 .. 92 59 253, 254 .. 29 Bensley v. Burdon Benson v. Hadfield Blacker v. Pepoe Bleckley v. Eymer Bowles V. Orr . . Bowser v. Maclean Bowsher v. Watkins Bothomley v. Squires 38, 74, 75, 80 .. 197 .. 152 .. 192 .. 37 .. 197 .. 171 .. 249 252, 253 .. 148 .. 225 .. 192 .. 250 .. 39 PAGE Boyd t). Moyle.. .. .. 78 Boyse v. Rossborough . . 70 Brangan v. Gorges . . 26, 80, 111 Brice V. Bletchley 135, 136, 138, 142 Bridgewater v. T)e Winton . . 224 Brooke v. Hewitt . . , . 250 Brownsword v. Edwards . . 260 Bruere v. Pemberton . . 163, 168 Buden ii. Dore . . . . . . 68 Bulch V. Tucker . . . . 217 Burrows v. Gore . . . . 36 Burton v. Blakemore . . . . 46 Burwell «. Coates . . , . 32 Campbell v. Mackay . . . . 155 Carew v. Johnstone 82, 123, 228 Carleton v. Leighton 47, 55, 63, 229 Cawley v. Poole . . . . 173 Champneys v. Buchau . . 108 Chicot V. Lequesne 37, 120, 124 Cholmondeley v. Clinton 180, 183 Christian v. Taylor . . . . 225 Clark V. Periam . . 68, 84, 124 «>. Turston .. ., 217 Clarke v. Preeman . . . . 187 Clive V. Beaumont 19, 165, 167, 168 Cockrane v. Willis . . 250, 251 Coleman v. Mellersh . . . . 193 Connop V. Hayward . . . . 227 Cooke V. Lord Courtown . . 89 V. Martyu . . ..15!) Coope V. Carter . . . . 191 Cooper V. Earl of Powis . . 253 Copland v. Tomlinson . . 149 Cox «J. Allingham . . . . 226 J). Stephens .. ..125 Crayhome v. Taylor . . . . 32 Cresset v. Milton 89, 107, 109, 119 Croskey v. Bank of Wales . . 44 Crosseing v. Honor . . . . 83 TABLE OF CASES. Crowther v. Crowther.. Curson v. Belworthy . . Cuthbert v. Creasy . . PAOE 90, 149 .. 149 .. 12 Darthez v. Clemens . . 76, 130 Davies v. Otty 60 Dawson v. Yates . . 192, 197 Dell V. Hale . . 229, 254, 255 Delorme v. Hollingsworth 27, 29, 111 DeManneTilles.DeManneville 162 De Montmorency Vi Devereux 193 Dent «. Wardel .. ..238 Denys v. Locock . . . . 141 Digby V. Meech ■ . 27, 111 Dobson V. Land . . . . 192 V. Lyall . . . . 179 Donerail v. Donerail . . . . 81 Donohoe v. Courahy . . . . 149 Dormer v. Fortescue . . 162, 168 Douglas t'. Arohbutt .. ..121 Drake «. Symes . . 225, 228 Drew V. Drew . . . . 217, 229 Duncalf «. Blake .. ..132 Dunn V. Calcraft . . . . 217 Durant v. Durant . . . . 161 Earl of Kinnoul «. Money 159, 160 Earle «. Pickin .. 120,149 Earp V. Lloyd . . . . 221, 224 East India Company v. Hench- man . . . . 85, 101, 131 Edwards v. Edwards . . . . 182 Egremont v. Cowell ■ . . . 115 Ellis V. Colman . . . . 76 Emerson v. Harland . . . , 69 Emmett v. Mitchell . . . . 254 Emperor of Austria v. Day and Kossuth 187 Ernest ■». Vivian . . 172, 173 Espey V. Lake 179 Evans v. Bicknell . . 40, 42, 71 V. Corporation of Ayon . 22 11. Evans 250 Eaulder v. Stuart 129, 217, 222, 229 Eerguson v. Patton . . . . 242 Eerraby v. Hobson 164, 208, 212 Eield «. Delaney .. 163,168 — — V. Hutchinson . . . . 58 Fitzgerald v. Flaherty , . 148 Fitzpatrick v. Power . . . . 234 PAGE Flints. Field .. .. 115,212 Foley V. HiU . . 139, 140, 207 Foot V. Besant 91 Ford V. Brj-aut . . . . 190 V. Peering . . 28, 29, 180 Foster «. Vassall .. ..123 Frietas v. Dos Saiitos 76, 77, 78, 142, 144, 192 Furrer v. Furrer . . . . 127 Garrett v. Earl of Besshorongh 149 Gaston v. Frankum 19, 85, 167, 168 Gedge v. Traill . . . . 39 Gell V. Hay ward . . . . 107 Gilbert v. Lewis . . 44, 71 Glasscott V. Lang 164, 175, 177, 178, 180, 208, 212 Gordon «. Gordon 45, 46, 68, 197 Gossip V. Wright . . . . 198 Graham v. Coope . . . . 210 t). Oliver . . . . 148 Great Luxembourg Eailway v. Magnay, .. .. .. 225 Gregor v. Arundel . . . . 221 Gregory v. Marshall . . . . 145 V. Molesworth . . 208 Grimes ». Grimes . . 159, 161 Hagley v. West . . . . 182 Hall V. Maltby . . 42, 149, 197 Hammond v. Messenger 91, 115 Harding v. Pinkey . . . . 189 Hardman v. EUames 54, 122, 124, 139, 140, 218, 226, 229 Harris v. Harris . . 140, 207 Harrison v. Hogg . . 60, 64 V. Borwell 218, 230, 231 Hatton 1). Waddy . . . . 62 Hayden v. Bell . . 166, 167 Hayward v. Purssey . . . . 197 Heam v. Mill . . . . . . I6I Heath v. Lewis . . . . 214 Hemphill «. M'Kenna.. .. 152 Henderson v. Cook . . . . 252 Hewitt V. Hewitt . . . . 229 Heys V. Astley . . . . 230 Hicks V Eaincock . . . . 254 Hill V. Binney . . . . . . 224 V. Filkin . . . . . . lyy 1). Great Northern Rail- way 170 V. Reardon . . . . 249 TABLE OF CASES. IX Hills V. Eowland PAGE .. 116 Hoare ». Peak . . .. 253 Hodgkln V. Longden . .. 255 Hodgson V. Thornton . .. 217 Holden v. Hearn . 198, 217 Holding V. Barton .. 230 Holloway v. Millard . . 190, 227 Hope V. Hope . . .. 250 V. ThrelfaU .. 121 Houghton V. Reynolds 26, 27, 32, 111, 115, 183, 197, 212, 213 Hudson V. Grenf eU 133, 211, 212, 224 Hughes V. Gamer .. 25 Humphreys v. Ingledoi 1 .. 63 Hunt V. Penrice .. 139 Hunter v. Daniel . 20, 81, 92 Hutchinson v. Townsh jnd .. 196 Hyde v. Edwards .. 61 Imham v. Child .. 197 Ivy V. Kekewich . 187, 219 Jackson v. North "Wa es Eail- way C!ompany 23, 71 James v. Sadgrove .. 207 Jerdein v. Bright . 33,59,74 Jerrard v. Saunders . . 24,140,229 Johnson v. Curtis .. 193 Jones V. Dayids .. 249 V. Jones . . . 17, 95, 160 V. Latimer .. 193 Kay V. Marshall . . . . 134 Kelly V. Rogers . . . . 73 Kemp V. Pryor. . . . 72, 250 Kinder ». Lord Ashburton .. 192 Kirkman v. Andrews . . 217, 229 Kirwan v. Daniel . . . . 250 Knight V. Matthews . . . . 242 Knowles v. Spence . . . . 258 Knox V. Gye 197 Lane v. Hardwick . . . . 217 Lef evre v. Palkland Island Com- pany . . . . . . • • 225 Leigh ». Birch 225 V. Leigh . . . . 88 Lincoln w. Wright .. ..231 Lister «. Turner .. ..125 Loker v. RoUe 127 Lord Coningshy's Case . . 186 PAGE Lord Damley v. London, Chat- ham and Dover Railway 198 Deloraine v. Browne 20, 113 Ormond v. Anderson . . 240 TJxbridgei'. Stavelandll5, 116 Walpole V. Lord Oxford 161 Love V. Gaze . . . . . . 126 Lowndes v. Gamett and M. Company . . . . . . 254 Lynch v. Lindsay . . 237, 240 Lynn v. Beaver . . 126, 217 M'Gregor v. East India Com- pany 128 M'Mahon v. BurchaU . . 120, 149, 198, 217 Maguire i>. O'Reilly . . . . 178 Malcolm v. Scott 120, 126, 145 Mansell v. Feeney . . 122, 133 Margareson v. Saxton . . . . 149 Marsh V. Keith 132, 133, 175, 211, 212, 224 . V. Russell . . . . 218 Matthews v. Reeves . . . - 252 Mavorv. Dry .. .. 237,239 Mayor of London v. Levy 17, 89, 111 Rochester v. Lee 115, 212 York V. Pilkington. . 109 Merriman v. Bonney . . . . 257 Middlebrook v. Bromley . . 253 Monck V. Earl of Tankerville 236, 239 Montesquieu v. Sandys . . 197 Moodie v. Bannister . . . . 230 Moore v. Edwards . . 217, 222 Morison v. Morisou . . . . 126 Morris v. Morgan . . 84, 213 V. Morris . . . . 234 Mortimer v. Hartley . . . . 250 Mousley v. Carr , . . 227 Mulholland v. Hendrick . . 149 Munday v. Knight . . 34, 38, 71 Mutter V. Chauvel . . . . 248 Myddleton v. Lord Kenyon 35, 39, 72 Mytton V. Harris . . . . 87 National Company v. Drew . . 82 Newen i>. Wellen . . . . 193 Newland v. Champion . . 36 Nokes V. Fish 170 Norhnry v. Meade 9, 26, 33, 111 TABLE OF CASES. O'Connell v. Cummins Ogilvie V. Foljambe . . O'Hara v. Creagh Oldman ». Slater Ormes v. Beadel Ormond v. Ajiderson . . PAGE .. 154 .. 166 .. 244 126, 218 .. 218 .. 240 Palk V. Clinton Palmer v. Mure Parken v. Wliitby Parker v. Banks V. Ford . . V. Morrell V. Nickson 159, 160 .. 40 .. 221 .. 54 .. 242 .. 82 235, 239 Partridge v. Thompson . . 120 Patrick V. Blackwell . . . . 214 Pauneefort v. Earl of Lincoln 133 Pennington v. Beechy 25, 67, 139, 229 Penny v. Hooper . . . . 32 Perry v. Turpin 122, 132, 133 Phelps V. Prothero . . . . 197 Philips V. Philips . . . . 281 Phillips «. Warde . . . . 120 Plate! V. Cradock . . . . 198 Plumbe i). Plumbe ..70,127,212 Plummer r. May . . 70, 213 Ponsford v. Hankey . . 93, 127 Postgate V. Barnes . . 230, 252 Potter V. Potter . . . . 224 Powell V. Trotter . . . . 192 Powys V. Mansfield . . . . 217 Prance v. Sympson . . . . 231 Price «. Assheton . . . . 145 V. Berrington . . 164, 179 Princess of Wales v. Earl of Liverpool . . . . . . 18 Eastrick v. Derbyshire Railway Company .. .. ..54 Eawlins v. Lambert .. 79, 171, 178 Rayner ij. Julian . . . . 254 Bead®. Barton .. ..221 Eeade v. WoodrofEe 221, 228, 225 Beed r. O'Brien . . . . 96 Ricardo v. Garcias . . 123, 228 Ridgway v. Wharton . . . . 230 Eist «. Hobson 58 Roberts v. Clayton . . . . 93 Robinson v. Thompson . . 254 Routh V. Peach . . . . 192 PAGE Rumbold v. Eorteath 98, 110, 112, 230, 251 Rump V. Greenhill . . 252, 253 Eyres v. Eyves 95, 103, 111, 131 Sadler v. Lovatt Salmon v. Dean Sanders v. Benson V. King ..154 ..229 ..280 ..189 ..191 192, 257, 258 .. 159 23, 211 .. 125 120 Sandford v. Seymour Sandon v. Hooper Saxton V. Davis Scarborough v. Parker Scarf V. Soulby Scott V. Corporation of Liver- pool . . Seeley v. Boehm . . 199, 235 Severn v. Fletcher . . . . 242 Shaftesbury v. Arrowsmith . . 69 Sharp V. Ashton . . . . 152 Shepherd v. Morris . . 185, 198 Sidney v. Sidney . . 81, 217 Sim V. Sim 193 Simpson v. Fogo . . . . 113 Skinner v. M'DongaU 186, 138, 142 Sleight V. Lawson . . . . 257 Smith V. Clarke . . . . 217 V. Hurst . . . . 125 V. Kay 73, 76, 83, 112, 113, 120, 121, 125, 180 • V. Pincombe - V. Smith Snead v. Green Soden v. Soden Spurrier v. Fitzgerald. . Stanley v. Eohinson . . Stansbury v. Arkwright Stapletou V. Stapleton . . Steedman v. Marsh Stevens v. Gnppy Stone V. Baker.. Strickland v. Strickland Stroud V. Deacon Stuart V. Burrows V. Ferguson . . Swabey v. Sutton Sweet V. Maugham Telford v. Ruskin Thomas v. Hobler Thring v. Edgar 156 238 282 161 145 218 95, 109 162 23 162 63 249 68 248 149 225 180, 184 .. 225 .. 175 .. 139 TABLE OF CASES. XI Todd «. Gee . . Topham v. Constantine Townsend v. Westacott Travers v. To-Hiishend Turner v. Williams . . Tumey v. Baylej f AGS .. 255 .. 167 .. 134 .. 191 .. 112 .. 225 Vernon v. Vernon Vickers v. CoweU . . 79, 88, 182 .. 115 Walbum v. Ingilby 30, 50, 57, 63, 64,66 Watkyns v. Watkyns . . 68, 217 Watson «. Cleaver .. ..121 Wattleworth v. Pitcher . . 152 Watts D.Hyde 198 Webb V. England . . . . 249 Weld V. Bonham . . . . 156 »Westhead v. Keane . . . . 134 Weymouth v. Boyer . . . . 163 Whaley v. Norton . . 197, 217 ,68 120 116 225 245 165 69 164 178 168 169 Wheeler v. Trotter White V. Smale V. Williams Whitley v. Martin Whitworth v. Gaugain Whyman v. Leigh Wilde V. Gibson Wilkinson v. Beale Williams v. Earl of Jersey 84, 130 II. Llewellyn .. 197 «. Shaw .. 162,197 Willis V. Evans . . 234, 237 Wood v. Midgley . . 59, 231, 263 Woodhatch 4). Ereeland .. 115 Wormald «. De Lisle . . 99, 131 Wright V. Griffith . . . . 167 V. Plmnptre 97, 98, 111, 128, 251 V. Vernon . . 28, 29 Young V. White .. 139 PRINCIPLES OF EQUITY DRAFTING. INTRODUCTORY CHAPTER. A JUDGMENT of a Court of Common Law in favour pleadings at of a plaintiff runs, that the plaintiff do "recover." — — The action formerly, as a rule, claimed (and still does claim), against one or more defendants, some esta- blished remedy for some recognized form of injury, and a judgment was merely sought whether, aye or no, the plaintiff was entitled to such remedy. Hence an action at law was not adapted to arrange finally the rights of the parties in any but cases of the simplest description, where there was no complication of interests or mutuality of obligations or wrongs. And hence, also, the pleadings were directed to raise simple issues of fact or law which would determine such judgment. And on these grounds the utmost precision was possible in legal pleadings. Moreover, every action was founded upon a writ ; and, owing to the attachment of the clerks in Chan- cery to ancient precedents, it was difficult to obtain a writ except for some cause of action already recog- nized by the Courts. By the Statute of Westmin- ster 2, 13 Edw. I. c. 24, it was indeed enacted that, " whensoever from thenceforth a writ shall be found in 2 INTRODUCTORY CHAPTER. Pleadings at the Chancery, and in a like case falling under the '- same right and requiring like remedy, no precedent of a writ can be produced, the clerks in Chancery shall agree in forming a new one ; and if they cannot agree, it shall be adjourned till the next Parhament, where a writ shall be framed by the consent of the learned in the law, lest it happen for the future that the Court of our lord the king be deficient in doing jus- tice to the suitors." In consequence of this enact- ment a new class of actions arose, called " actions on the case," which were used where cases were new only in the instance and not in the principle (a). Practically, therefore, the right of suit continued still limited by the formulated causes of action con- tained in the ancient writs. It is not to be won- dered at, then, that the spirit, which refused to see that complete justice could not be done in all cases by a judgment that the plaintiff should or should not recover the whole or part of what he asked, and which held that all cases in which the help of the Courts should be demanded ought to be brought within some established formulae, should require, that the statement of a plaintiff's case should be expressed as far as possible in the very terms of those fornjulae themselves, and that, where usage had consecrated certain' technical expressions to certain facts, those expressions should always be employed. Nor is it strange that the same or similar strictness and for- mality should have been applied to the subsequent pleadings. Thus, great technicality and precision in legal pleadings was both practicable, and in accord- ance with the spirit of the Common Law. (a) Sm. Lea. Ca. i. 213. INTRODUCTORY CHAPTER. C In equity, however, the pleadings have always pleadings i« been somewhat difFerent. There, the plaintiff ap- ff!^- pealed to the conscience of the king by petition, re- presenting tliat he had not, or could not receive, fair treatment in the Courts of law; because they had not power to award him rehef, or not that relief to which he was entitled, but only damages ; or because they could not make such an investigation as would show the true state of matters between himself and the defendant ; or could not dispose of the rights of all parties interested in any subject matter; or could not dispose of all the rights of the contesting parties at all, or without a multiplicity of actions ; or because the defendant could not be examined as to the facts and documents; or, finally, because when all the material circumstances of the case were stated, it would be against justice that the law should in that particular case be allowed to prevail. Thus it will be found that the principal heads of equity jurisdic- tion all repose on one or both of these peculiarities of equity — its superior mode of relief and its more liberal grounds of relief The petition originally merely consisted of a plain jnaent statement of the case of the applicant, and asked "* '"^'' generally for such relief as the king might think him entitled to. Afterwards, the prayer was, by universal practice, framed so as to ask for the particular relief which the case, as stated, justified. This was when the principles, upon which equity would relieve, came to be somewhat settled. There was also, however, a prayer for general relief, and the general form of petition came at last to be fixed in a very artificial and complicated manner. Though usual, it was not b2 4 INTRODUCTORY CHAPTER. Ancient necessary to have a particular prayer. But it was pieaimg,. ^.g^^j^j^g ^^^^ ^j^g gjjj gjjould Contain a clear state- ment of the material facts of the case, and some in- dication, by way of charge or allegation or of a special prayer, of what relief and points the plaintiff intended to rely on. As a matter of common sense this was proper in respect of the Court, to enable it to see what the plaintiff was seeking, and what was material to his objects, and to make a definite decision founded on some distinct facts clearly put in issue and ad- mitted or proved ; and it was just to the defendant, that he might not be taken by surprise. Now it is clear that, if the plaintiff appealed to equitable grounds of relief, in the majority of cases his statement must consist of a variety of pecuHar circumstances upon which he rested his claim for de- parture from the rules of law ; and his case would not, consequently, be often capable of being expressed in established technical and precise phraseology. Such phraseology implies that the precise case to be stated had often before occurred. It was of neces- sity, therefore, that regard should rather be had, in the main, to the statement being substantially than technically accurate. Such statement, too, would fre- quently tend to raise somewhat indefinite and mul- tiform issues, instead of clear, single and definite issues; that is, instead of issues whether certain facts occurred exactly as laid, the questions would be whether they occurred substantially as laid, or with any qualifying variations or additions, or whether there were other facts which modified their effect : and on this account also the statements of the parties would not admit of a fixed formal expression. Still, INTEODUCTOHY CHAPTER. however, the case might be stated with the same positiveness, accuracy and completeness as at law. But, when the plaintiff appealed to- those equitable modes of relief, which directed some subsequent in- vestigation or discovery to be made, he might fre- quently express his case with technical precision; but, on the other hand, not with the same accuracy and completeness as at law, because, by supposition, the whole and exact case was afterwards to be revealed by the process of the Court. Yet the case might sometimes raise clear and definite issues. Now, in every case where the equitable grounds of relief were appealed to, the plaintiff always sought a discovery also (J), and generally required certain accounts and inquiries, and in other ways appealed more or less to the equitable modes of relief; and in most cases where the plaintiff sought some equitable mode of relief he also stated some equitable grounds of relief. The necessity of the case, then, as well as the spirit of equity (which rendered it a refuge from the narrowness and powerlessness of the com- mon law) led to great liberality as to the form and manner of equity pleadings. " Pleadings in equity are not considered with the same strictness as are pleadings at common law. This doctrine obtained very early in the administration of equity" (c). And thus the rule of pleading in equity came to be ge- nerally, as to plaintiff's bill, that legal technicality, precision and completeness are not requisite, but that it will be sufficient, if, so far as is reasonable under the circumstances of any case, the plaintiff positively (h) Every bill is in reality a bill of discovery. Mitf. (4'th ed.) 53. (c) 1 Mad. Ch. Prac. 477. Ancient Pleadings. INTRODUCTORY CHAPTER. Modern and Substantially, and without prolixity, sets before in EqSfy. the Court and the defendant the material facts of his case and the points and relief on which he intends to rely. Bills. The bill usually consisted of nine parts ; e. g., the address, names and description of plaintiffs, stating part, allegation of confederacy, charging part, aver- ment as to defect of remedy elsewhere, interrogating part, prayer for relief and discovery, and prayer of process ; so that in effect it contained, as has been said, a thrice-told tale : yet the only necessary parts of the bill, besides the formal commencement and ending and the interrogatories, were really those which by the 15 & 16 Vict. c. 36, s. 10, and the General Order 14, are now directed as to its contents and frame. That statute and order say, that "every bill shall contain, as concisely as may be, a narrative of the material facts, matters and circumstances on which the plaintiff rehes, such narrative being divided into paragraphs numbered consecutively, and each paragraph containing, as nearly as may be, a separate and distinct statement or allegation, and shall pray specifically for the relief which the plaintiff may con- ceive himself entitled to, and also for general relief;" but shall contain no interrogatories. By sect. 12, where the plaintiff requires an answer from the de- fendant, interrogatories must be filed separately from the bill. From this enactment we see that the old riiles as to the necessary frame and contents of a bill remain substantially unaltered, except in the matter of the interrogatories; and the decisions relative to such INTRODUCTORY CHAPTER. 7 matters before the statute, will consequently still Modern 1 Pleadings apply. in Equity. Then as to the defence, which we shall suppose Answer, made by answer, because, after the principles to be observed in drawing bills and answers have been explained, only a few remarks will be needed as to drawing pleas and demurrers, provided the rules of pleading are understood. Here it will be apparent that the same observations must apply in great measure to the statement of the defendant's case by way of answer, as to that of the plaintiff. The peculiar circumstances of the plain- tiff's case may have to be met by the peculiar cir- cumstances of the defendant's case, and the indefinite and multiform points raised by the former be met by equally indefinite and multiform points of the latter ; and parts of the latter, as of the former, may rest in the knowledge of the opposite side and cannot be fully set before the Court. If the defendant could not fully set out his defence from his own means of information, he must formerly have filed a cross bill, so that by means of interrogatories addressed to the plaintiff his case might be made out and completed by the process of the Court. Thus then the same rules as to manner and contents would, allowing for the difference between a petition seeking relief and discovery, and an answer showing why either or both should not be given, apply to both bills and answers, and they were accordingly so applied. These rules, we have seen, will now still apply to bills ; and, since the late act, they will apply still more fully than before to answers. For sect. 14 enacts, that " the answer . . . may contain not only the 8 INTRODUCTORY CHAPTER. Modern answcr of the defendant to the interrogatories . . . iasguitg. but such Statements material to the case as the de- fendant may think it advisable, . . . each paragraph containing as nearly as may be a separate and distinct statement or allegation ;" which leaves the answer, as a defence, the same as before : but sect. 19 declares, that the defendant shall be at liberty to file in his turn interrogatories to substantiate his case, which shall be founded on the statements in the bill and answer ; and it is presumed he will, as to any allegations of facts more within the plaintiff's know- ledge than his own, or which he intends to supplement and perfect out of the mouth of the plaintiff, stand in the same position as a plaintiff in regard to the looser manner of framing such allegations. Our observations, therefore, in the following ^eneraZ remarks on the manner and contents of equity plead- ings will be principally addressed to the frame of bills of complaint. Of the Frame and Contents of a Bill. As a conclusion from what has been said it appears that — A hill in equity must contain a clear and concise statement of the material facts of the plaintiff's case, and must indicate the points and relief upon which he relies ; and that equity having regard to the nature of the case, the position of the parties and the. relief sought, looks only to the substance of the pleadings. In determining, however, what in any particular case will be a compliance with this general conclusion, it will be necessary to have regard to the object of INTE0DUCT05Y CHAPTER. 9 all pleadings, in respect of the Court and its decree, wod^ and in reference to the opponent and his defence. «» -EjkWj/. Proper as it would be to regard the pleadings oUjectof under these two aspects in any Court, it will be found, ^ ™®^' we think, especially necessary in Equity, where the circumstances of the cases adjudged, the points re- lied upon, and the relief asked, are so various, and the decrees of the Court, which acts upon the principle that it ought to do complete justice in reference to the subject matter to all parties interested, sp diverse and complicated. It is to be observed, then, that the main object of pleading is to bring before the Court, in a convenient shape, the materials for its decree. These materials are afforded partly by the statements of the plaintiff, partly by those of the defendant, and partly by the verifying evidence. In other words, the Court acts "secundum allegata et probata" alone (cf). The plaintiff must, therefore, represent to the Court a particular case which can be identified, and will entitle him to a particular decree if admitted or proved. If the case be not so set forth, the decision would often not be a bar to another suit really on the same matter ; the Court would not be sure that it was not trying a fictitious case, and its time might be frittered away in ranging over most indefinite inquiries; and therefore, in reference to the Court and its decree, and as a rule of general policy, it is requisite so to state the case, even though, in fact, the defendant himself might not be, as matters stand, {d) Cooper, Eq. PI. 7 ; Norlmry v. Meade, 3 Bligh, 211 j Gilb. For. Eora. 91, 218. b5 10 INTRODUCTORY CHAPTER. Modern really inconvenienced in conducting his defence : and in Equity, of coursc it is in reference to the Court and its decree, that a good prima facie case is required. These are what must be the "allegata:" but in order that they may be duly " probata," the state- ments must be so made, that if issue is joined upon them, the very facts upon which the equity is rested must be in contest, and not something else included under the terms used or the whole case made. Then only will the proper facts be fairly proved by the evidence, so as to justify the Court in acting upon them. In justice to the defendant, moreover, the Court requires that he should have an opportunity of making " allegata et probata " on his part. And so the plaintiff must also state his facts, so that de- fendant may be placed in a position to know what ou his part to state, and how to disprove, if he can, such of the plaintiff's allegations as he may challenge. The plaintiff must do this primarily for the benefit of the defendant, and it will satisfy the Court or not, accordingly as it satisfies the defendant. Therefore, though it is required ultimately as a means to afford the Court the materials for a proper and just decree, it may be most conveniently considered in reference to the defendant alone. And, finally, the material facts must alone be stated, and therefore the Court must know the points and relief relied upon to judge whether the " allegata et probata " are material, and the de- fendant must know them in order to conduct his defence, and bring forward what is material to it. INTBODUCTORY CHAPTER. 1] The same observations apply to the statement by Mod(arn the defendant of his defence. «» Bquuy. We shall, then, explain and illustrate the eeneral Divisions of . , . ° subject. pnnciples above laid down under the following heads : — In reference to the Court and its decree : 1. Facts must be stated and not merely con- clusions of law, which will not generally identify the case, or separate the issues of law and fact. 2. The statement must not be vague — that is, must not be ambiguous, in the alternative, or inconsistent, or argumentative, but must set forth with substantial certainty the facts necessary to show that some and what decree is proper. 3. Averments must be positive and direct. In reference to the defendant : 4. Facts must be stated with sufficient par- ticularity for defendant's information, lest he be taken by surprise. In reference both to the Court and defendant : 5. The points and relief must be indicated for the guidance of the Court, and lest the defendant be taken by surprise. Under these heads we shall consider the manner in which a bill should be framed, and then shall add a few words upon — 6. What facts should be stated. 7. Charges and pretences. 8. Answers and pleas, d. Amended bills. 10. Demurrers. 12 FACTS MUST BE STATED, CHAPTER I. FACTS MUST BE STATED, AND NOT MERELY CON- CLUSIONS OP LAW OK EQUITY. Grounds of This Tule follows from the late enactment, and may the Rule. , • , • , ■ seem to be so simple as to require no explanation or illustration. But it is in fact (as we have before said) necessary to effect the principal object of furnishing to the Court, on the face of the record, the materials for its judgment ; for it is for the Court to apply the law to the facts. Accordingly we find the rule laid down before the late statute. Thus, the rule at common law is, " Facts only are to be stated, and not arguments or inferences or matters of law" (a) ; and in equity it is said, " Facts must be stated, and not the law or presumptions of law" (6). The Court is bound by plaintiff's allega- tion of fact, but not of law (c). And, indeed, it almost directly follows from the rule we have above referred to, viz., that no evidence can be given of facts not alleged in the pleadings. It may be useful, however, to point out, as will presently be seen, that the Courts, when speaking of cases within the rule, have sometimes dwelt only on one objection to the statement of a mere conclusion of law, viz., the manner in which it might operate to (a) 1 Saund. Plead. 919. (6) Mont. Eq. Dig. 5. (c) Cuthbert v. Cressy, 6 Madd. 189, niarg. note. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 13 embarrass the defendant in the conduct of his case (cf ). .oromda o. the Rule, '/ The objection is not that, tinder the circumstances, the defendant is actually embarrassed, but that such statements have a tendency to embarrass. It is not, therefore, fairness to the defendant which forbids such pleading, but the requirements of the Court. The Court requires facts, upon which it may judge, to be clearly brought out upon the pleadings and evidence; and such statements are vicious, because they tend to hinder the defendant in stating facts or raising issues of fact (e). But it is evident that the facts must be brought before the Court not only by the defendant but by the plaintiff, and such statements are open to the other objection that they do not so present the plain- tiff's facts. And thus it appears that if the statement of a con- clusion of law does substantially reveal the exact facts upon which it is based, so that there is no tendency to embarrass an opponent, the facts will ultimately be brought clearly before the Court upon the pleadings and evidence, and no objection would lie to the pleading. This will be found to be the basis of the exceptions to the rule. It is not, however, till we have well considered the whatuacon- distinction between matters of law and matters of ""I'aw. fact, that we shall see the lull meaning and wide application of the rule. A conclusion of law (and for our present purpose equitable conclusions must be considered such) may be defined to be as follows : — When the law has annexed certain legal incidents to a particular com- (d) Post, p. 47 et seq. (e) Post, pp. 19, 27, 41 et seq., 47 et seq. 14 FACTS MUST BE STATED, whatiaacon- bination of facts, the conclusion in any case that the elusion of T • 1 1,* i-im- facts alleged or proved are that particular combina- tion of facts, and that such legal incidents must result, is a conclusion of law and not of fact(/). Sometimes the conclusion of law arises by statute : and sometimes by the decisions of the Courts de- claratory of the law or equity under certain circum- stances ; so that an inference, which at one time was a mere question of fact, may become by subsequent decisions a conclusion of law, — e. g., the question of reasonable notice to determine a yearly tenancy: which, by a decision in the reign of Hen. VIII., was fixed at six months' notice (j'), and sometimes by the application of general principles to particular insttmcesof facts. Of iustances of conclusions of law under °ofLam!^' statutes, we have one in the case of a will, where the wiuwasduiy ^Jatute says that a will, made in a particular way, shall pass real estate, and where, under the general rule, it would be necessary to aver particularly that the will was made in that way, and the Court would draw the legal inference that it was duly made and Bankraptcy. valid to convey the realty ; and another in the case of bankruptcy (A), the circumstances constituting which have been laid down by the various statutes of bankruptcy, and ought, under the general rule, to be specially^ set out for the information of the Court. Grant of in- Other instances will be found hereafter. Instances heredita, of conclusions of law, arising from decisions of the Courts and otherwise, may be seen in the case of a grant of incorporeal hereditaments, which ought, by (/) Stark. Ev. 768. (g) Id. 776-7. (A) Id. 772. AND NOT MERELY CONCLUSIONS OF LAW OH EQUITY. 15 the general rule, to be averred to be by deed ; and instances »/ more particularly in all those cases where fraud or o/zaw. misbehaviour, or such things as the acceptance or praua, &c. abandonment of a contract, are to be proved, not by ^^i^JJ^"" distinct evidence of a fraudulent or wrongful intention ™„°Jj,°/t * or of the formal acceptance or abandonment, but by an inference from various facts based upon a rule of law or equity upon the subject, or upon the ground that it would be just or expedient to consider such transaction as fraudulent or wrongful, or the party as having abandoned or accepted the contract; for in such cases the Court will decide according to the rules of law or its previous decisions on the same or similar circumstances, and upon its general view of what is equitable. So, too, the existence of the re- Trust or lation of trustee and cestui que trust, or the breach of trust. a trust, are matters for the Court to decide upon the facts — matters of law. These cases will sufiEice to show the necessity and extent of the application of the rule in question, which has a peculiar value in equity, because the equity of a case arises upon the whole circumstances. To make the requirements of the rule plainer, we Rule not con- must anticipate and point out how it differs from that pm-ticuiarity requiring particularity of statement. The statement i of a conclusion of law will imply that of various par- ticular facts ; and the statement of a major fact will likewise imply the existence of several minor facts. In the former case it is the province of the Court to draw or verify the conclusion, and therefore the par- ticular facts must be placed before it on the record and admitted or subjected to an issue. In the latter case it is the province of ordinaiy intelligence to 16 FACTS MUST BE STATED, Buie not con- arrive at an inference and state it to the Court. If necied with. Particuiaru;/ only a conclusion of law is stated, there is no state- of statement. •' • ■ n C ment of the material facts at all ; if an inference ot fact is averred, there is such statement, though it may be more or less general. The latter pleading may be supplemental and rendered sufficient (in many cases) by the evidence. The imperfection of the former pleading is (as a rule) incapable of being so remedied. Mixed aues- Further it is to be noted, that some questions are tions of Law . , ' . and Fact, what are sometimes called mixed questions of law and fact. That is, when a certain averment has been proved as a matter of fact, the legal inference to the same effect necessarily follows. Thus the question of what is " reasonable time" in certain cases, as a matter of law, is regulated by what as a matter of fact the jury may find to be so. The averment in such a case will be an averment of fact, and the Court will draw the legal conclusion (i). So too such things as the formal acceptance or aban- donment of a contract are strictly speaking matters of law in any pleading, though the inference of law would immediately follow their proof as matters of fact, unless any statutory or other rule of law inter- posed to require any conditions. An example of the application of the general rule we are considering, at common law, is seen in a case where a defendant justified in an action for false im- prisonment, by stating that certain acts were done " suspiciously" and " in a suspicious manner," where- upon the defendant had " reasonable and probable cause to suspect," and did suspect, &c. ; and the (i) Stark. Ev. 777 et seq. AND NOT MEHELY CONCLUSIONS OF LAW OB EQUITY. 17 plea was held bad because it did not show the iiimtrauom grounds of the suspicion with suflBcient certainty to °_^- enable the Court to judge of the sufficiency (k), the " reasonable and probable cause" being a matter of law, for the Court, and not the jury, to determine (Z). We proceed to give some illustrations of the appli- cation of this rule in equity : — Thus, in a bill of discovery in aid of an action at Discovery— 1 n ■ 7 t . , rn • • t 1 !• *^^' plaintiff law, an allegation that plamtitf is entitled and is is entitled to , . . .,, /^ -1 -11 1 tring an ac- gomg to bring an action will not suffice, but will be won. demurrable, because it is a conclusion of law that the plaintiff is so entitled. " It has never yet been nor can it be laid down, that you can file a bill — not venturing to state who are the persons against whom the action is to be brought ; not stating such circum- stances as may enable the Court, , which must be taken to know the law, and therefore the liabilities of the defendants, to judge ; but stating circumstances, and averring that you have a right to an action against the defendants or some of them" (w). It would also appear that the plaintiff must not Thatdis- ^ ^ , -^ . covery is ma- onlv allege it, but must show circumstances which temitothe •^ =■ ' , action. would enable the Court to judge that the required discovery would be of service to him in his action (w). So where a defendant applied on motion for the production and inspection of certain securities on which the plaintiff's case was founded, and supported the claim by an affidavit that " he is advised that an inspection of the instrument may afford to the de- (i) Steph. Plead. 340. (I) Stark. Ev. 782. (ot) Mayor of London v. Levi, 8 Ves. 398. (») Jones V. Jones, 3 Mer. 172. 18 FACTS MUST BE STATED, Illustrations fendants material information for their defence, ' ' Lord Eldon said : " How can it be said that this expression ' may afford,' points out the necessity al- luded to in the passage which I have quoted ? It appears to me impossible. This motion requires an affidavit stating more strongly the necessity, and in some measure the grounds on which the necessity arises.- Unless those grounds are to a certain extent stated, it is impossible to be sure that the Court is not compelling a production which the circumstances do not require. It seems to me that the fight mode of disposing of this case is to dismiss the motion, unless the defendants produce an affidavit of special circumstances" (o). The existence of the necessity was here a matter of law for the Court to judge of, and the decision was founded upon what would have been the requi- sites of a cross bill filed for the purpose of obtaining the same end {p). The motion was made in the place of a cross bill, because discovery could thereby be obtained before filing an answer to the original bill, and in order to enable the defendant to make a defence, whereas the discovery could not have been obtained by the cross bill until after the answer had been filed to the original bill (9). And the case shows that the same principle is to be regarded in all proceedings in equity. That an ac- Again, in the above cited case of Cuthbert v. tion is ne- ^^ / \ i i -n n estaSh°the '^''^^^7 W> 't'16 ""1 alleged that it was necessary for plaintiff's "^ "' (o) Princess of Wales ». Earl of Liverpool, 1 Swans. 126. (p) Id. 118, 119. (?) Id. 124. (r) 6 Madd. 189. AND NOT MERELY CONCLUSIONS OF LAW OK EQUITY. ] 9 the plaintiff, in order to assert his legal title, to pro- illustrations ceed by writ of intrusion, and Sir J. Leach said, " it °£f!^- was partly an allegation of matter of law, and did not bind the Court. The facts ought to be stated from which the necessity arose." The question whether a purchaser had so acted Acceptance that he ought to be taken to have waived all ob- jections and to have accepted a title to land, was said, arguendo, to be an inference of law for the Court to draw; and the Vice-Chancellor endorsed that statement («). Where the bill alleged " that the defendants had waiver of • waived or abandoned their right to rescind the con- scindcon- ° tract, tract by notice," V.-C. Wigram said, " Whether upon demurrer I could disregard altogether a merely general charge, I need not decide;" and it would seem on principle that such general charge could not be so disposed of, because the waiver or abandonment might have been a mere question of fact to be proved by some formal act of waiver, and neither the Court nor the defendants would in such case have been placed in any diiSculty by such general allegation, and certainly would not now (t). But as the plaintiff proceeded to say, " and in particularly by certain" payments, the waiver was dearly to be, in part at least, a constructive waiver, and as a matter of law to be judged of by the Court upon the circumstances stated, and so the proof was " Hmited to the matter alleged." The Court said, " Such general charges may be perfectly unfounded, and may involve parties in litigation for years, whilst if the facts were stated, («) Clive V. Beaumont, 1 De G. & Sm. 406 ; and see also Gaston V. Frankman, 2 De G. & Sm. 669. (t) Post, Chap. IV. escence. 20 FACTS MUST BE STATED, Illustrations the Court might at once dispose of the case. The party ought so to frame his case upon the record, that the Court can fairly see what the case is which is to be rehed upon" {t). It is presumed these ob- servations were only pointed at " the inconvenient practice of putting in general charges, of which neither the defendant, nor probably the - plaintiff, knows the necessity" (m), and though they particu- larly apply to cases of conclusions of law and in some degree also to charges of fact, could certainly not apply to statements of fact such as a formal waiver which the plaintiff, and most likely the de- fendant also, would well understand (a:). Acqni- In the case of Lord Deloraine v. Browne {y), it may seem to be assumed that " acquiescence" in a fraudu- lent bargain is a question of pure fact. In that case the plaintiff stated the circumstances of fraud attend- ing both the original transaction and a subsequent confirmation which occurred a long time before the bill, and also the actual receipt for a long time of the annuity given in consideration, and that from poverty and pressure produced by the fraud he had been unable to file his bill to set the bargain aside, but did not state when he became acquainted with the fraud. The defendant demurred; and the demurrer j was overruled, because, though a demurrer a,djiiitted I all the facts stated in the bill, it was restricted' to / raising issues of law upon those facts, and could not Vraise inferences of fact. In that case the rule that (<) Hunter ». Daniel, 4 Ha. 432. («) Id. {x) See post, Chap. IV. iy) 3 Bro. C. R. 633 ; and see Mitf. 213. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 21 no length of time is a bar in cases of fraud operated, luustrauons unless acquiescence appeared on the bill. And the °{^^- Court was asked to infer the facts upon which it would hold such acquiescence to have existed in its view. The Court said, " I am asked to gather from the circumstances of the case, and from the length of time, that the plaintiff acted with his eyes open, and that he confirmed the transaction at some period since 1764, but it does not appear when he was unde- ceived ;" and again, "that it was a conclusion froni facts, showing acquiescence, and not a matter of law," that is, "that length of time propria jure was no reason for a demurrer" in that case — was no legal bar — but facts showing acquiescence must appear. The Court was therefore asked to infer the fact that the plaintiff knew of the circumstances for a certain time during which (as stated) he took no steps ; and then to come to the conclusion of law that such con- duct amounted to such acquiescence as would bar his claim in equity. Again, a general charge that "all the heredita- Trusts. meuts so vested in the corporation have always been, and are, subject to certain trusts in favour of the in- dividual members of the said corporate body. The said private and public trusts are evidenced by divers provisions, rules and ordinances, contained in charters, or which have obtained by custom, or been duly made by the said corporation," was held insuf- ficient, because the facts and deeds which were al- leged did not support it. The Master of the Rolls said, " The principle on which the Court acts is this ; a pleading is to be taken most strongly against the pleader, and where a plaintiff alleges particular facts not amounting to what is necessary to support the 22 FACTS MUST BE STATED, Illustrations prayer foT relief, and then puts in a general allegation to make up the deficiency in ;the particular allega- tions, such general allegation is considered by the Court to have reference to the particular facts" (s). In which observations the Master of the Rolls vsras referring, it is presumed, to a general allegation of a conclusion of law, such as that before him relating to a trust ; for as a general rule, as we shall see, a general allegation of fact may be supported by the averment of particular facts if properly made, with- out being confined in the matter of proof to such particulars (a). And by the allusion made to the statements necessary to support the relief — that is, the conclusion of equity relied on — this is probably the proper interpretation to be put upon the passage. Indeed, by an earlier case (quoted in the argument 'on the last), these points, that a demurrer would hold to a mere general allegation of a trust unless facts are alleged in support, and that the Court will exer- cise its jurisdiction in respect to it according to the facts alleged, were expressly based upon the ground that such an allegation is a statement of a conclusion of law. The bill charged, that the " company had money in hand for the special purpose of paying the plaintiff, and had been constituted and were trustees of such money for and on behalf of the plaintiff .... and subject thereto the said money was held in trust for the said company absolutely ; and that the said trusts were declared by a written instrument." Lord Cottenham said, "He is bound to allege how that trust arose. Can a person come here and say, that defendant is a trustee, and be under no necessity to {z) Evan v. Corporation of Avon, 29 Beav. 141 ; 6 Jur., N. S. 1261. (o) See post, Chap. IV. AND NOT MERELY CONCLUSIONS OF LAW OB EQUITY. 23 give the Court any information how the trust was illustrations created ? The allegation of trust is merely a deduction " of law. . . . The trusteeship is a conclusion of law ; but, although the plaintiiF is pleased to call it a trust, that will not affect the jurisdiction of this Court, where, according to the facts which are alleged, there is no trust. The Vice-Chancellor seems to have been of opinion, that the allegation of trustee- ship created a sufficient equity to sustain the bill, although it was an infinitesimally small degree of equity. My opinion is, that this equity is quite evanescent, and that, therefore, the demurrer ought to be allowed " (h). So too, in another earlier case, V.-C. Wood allowed a demurrer and said, " The allegation in the bill, that Milligan contends that the defendant is a trustee of the patent for him, is in no way sufficient to support the bill, unless it appears from the facts stated in the bill that Milligan is justified in that contention" (c). Upon the same ground in an answer (to a bill to have title deeds delivered up), a general allegation that the defendant was a "trustee for mortgagees" was held insufficient. " It is no answer at all. If he was trustee for mortgagees, he ought to name them, so as to enable the plaintiff to amend his bill, which he cannot do now. Therefore he must be de- creed to deliver up the deeds and pay the costs" (d). And though the Court only spoke of naming the mortgagees, the reason goes much fiirther, because the plaintiff could not amend without other parti- (6) (1848) Jactson v. The North Wales Railway Co., 1 Hall & Twells, 80, 84, 85. (c) Steedman ». Marsh, 2 Jur., N. S. 391. (d) Scarborough .«. Parker, 1 Ves. jun. 267. 24 FACTS MUST BE STATED, Breach of trust. Constructive notice. lumtrauoni culars being given. It was unnecessary to say more than that the defendant had not even named the mortgagees. : • So also it is a matter of law whether any act is a breach of trust. " A mere general charge that the proposed applications [of a trust fund] are wrongful will not supply the want of facts from which it is fairly and legally to be deduced that wrong is about to be done," and therefore a demurrer would be allowed (e). An allegation of constructive notice also is a mat- ter of law for the Court, and it would seem the facts must be placed upon the pleadings. Thus, where (/) the bill sought a discovery of deeds relating to the plaintiff's title and an injunction to stay proceedings in ejectment, and charged that the person under whom the defendant claimed had constructive notice of the plaintiff's title, and stated circumstances (such as the delivery of the deeds) by which that notice was proved, the defendant pleaded a purchase for value without notice, but did not answer the facts charged ; Lord Eldon said, " He must set forth the facts charged in the bill, from which the Court will construe notice ; particularly whether the title deeds were delivered. He assumes to himself the propo- sition. He judges what is constructive notice ; and then denies that, to his knowledge and belief, he had constructive notice. The bill does not impute direct notice to him." The principle of this decision would seem to apply to a charge of notice by the bill if the plaintiff attempt to make it out by evidence as con- structive notice only. (e) Att.-Gen. v. Mayor of Norwich, 2 Mont. & Ch. 466 ; I Keen, 713. (/) (1793) Jerrard v. Saunders, 2 Ves. jun. 187, 454. AND NOT MERELY CONCLUSIONS OF LAW OB EQUITY. 25 In a subsequent case (^i),' facts were stated in the mmiraums bill, from which notice might be inferred, but no " notice was directly charged : and it was held, that a plea denying notice was sufficient, without averments or an answer meeting these facts ; and it was said, that if the bill had charged the notice distinctly, and the facts as evidence thereof, the facts must have been denied. The case is, however, of doubtful au-^ thority (A) ; but at any rate it only proves, so far as / we are here concerned with it, that where a conclu- ^ sion of law is not alleged with facts to support it, the \ plea need not enter into facts to prove the negativej of the'conclusion of law. But where notice was charged in general terms, srot direct . notice. evidence was allowed to be given of direct notice (i). The bill stated that "the defendant pretended that she was a purchaser without notice of the plaintiff's claim, whereas the plaintiff charges the contrary to be the fact, and that it was well known, suspected or believed, &c.;" and it further charged that the de- fendant's attorney " had notice given him, or he knew, believed or suspected, &c." And Alderson, B., said that "he [the defendant] must decide the question of fact himself" as to such notice (A). The ground of the decision seeming to be that such a charge might only involve a question of fact and not of law, and therefore would be sufficient: at any rate the case might be supported on that ground. (g) Pennington v. Beechey, 2 Sim. & Stu. 282. (h) Post, Chap. IV. (i) (1836) Hughes v. Garner, 2 Y. & C. 328. (ft) 1(1.332. L. C 26 FACTS MUST BE STATED, niustratiom The Statement of title also is a conclusion of law (/). of Rule. . Titi^ ^*' depends upon the facts and deeds, and is a ques- tion for the Court. The plaintiff may think himself entitled and yet not be so. The facts must there- fore be stated. The averment of title is an averment " of the consequences of facts and not of a fact," and so, unless the facts are also alleged, a demurrer will lie {m). The case of Walburn v. Ingilby is an au- thority to this effect, though the authority of that case has been in some respects doubted (w). A general statement of title " not specifically averring the facts themselves would be defective. The law upon this point admits of no question" (o). " The rule at law upon this point has been long settled, that a plaintiff must allege his own title particularly, but may state that of the defendant generally. The rule in this Court is the same" {p). " In pleading a title by descent, the rule of this Court is to follow the rule of pleading at law. The defendant is entitled to be apprised of all the links which constitute the chain of descent" {q). Upon this ground a statement of various descents and that " on his [the last possessor's] death [the premises] vested in the plaintiff" was held insuf- ficient, because it was not shown how they came (I) Baker v. Harwood, 7 Sim. 375 ; Houghton v. Reynolds, 2 Ha. 265. (m) Red. 233. (n) Steph. Plead. 340 ; Red. 37 ; Norbury ». Meade, 3 Bligh, 228, 229, 233. (o) Houghton V. Reynolds, 2 Ha. 265. (p) Id., and Brangan v. Gorges, 7 Ir. Eq^. Kep. 296 ; Id. 295. (j) (1835) Baker v. Harwood, 7 Sim. 375. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 27 to the plaintiff by descent, settlement or other- ^'Jjf^^lj""' wise (r). The reason of the rule as:ainst stating only the neasonofthe , . p , 1 , „ . , . rule as to conclusion ot law and not the tacts as to title, is re- titie. ferred to in the above case of Baker v. Harwood, and in the case of Houghton v. Reynolds, where the Vice-Chancellor says " that the defendant may be distinctly informed of the nature of the case which he is called upon to meet. This is the principle upon^ which the insuflSciency of ambiguous statements has / been put ;" and again, " it has never been doubted )• that a plaintiff must state his title with sufBcient par- \ ticularity and detail to enable the defendant to meet^ the case upon some definite issue" (s). And hence it would appear that when the reason Limits of the . rule as to ceases the rule should also. Thus, in another case, title. the plaintiff stated her title by descent completely, ex- ; cept in not mentioning the death without issue of the elder brother of her ancestor ; but she stated that she claimed by descent through that ancestor, and it was held a substantial averment of the fact of such death without issue, for otherwise she could not have claimed as heir (t). And so where the plaintiffs claimed as heirs of a devisee or of the testator, supposing the devise not good, stating that they were co-heirs of Mary, daughter and heir-at-law of the devisee, who was nephew of the testator, and that F., one of the plain- tiffs, was grandson and heir of Joanna, one of the (r) Digby v. Meech, Bunb. 195. (») Houghton V. Reynolds, 2 Ha. 266. (*) Delormeu. HoUingsworth, 1 Cox, 421 : and see post, pp. 49, 56, 63, as to such exceptions. * c2 28 FACTS MUST BE STATED, ''^Truu"' sJsters of the testator, and E., the other plaintiff, was granddaughter and heiress of Alice his other sister, TO™aa to * and that the devisee had one daughter only who died without issue : it was held that suflBcient was set out, without expressly stating the deaths of parties with- out issue, &c., to show how the title was made (a). And so in another case, the bill, after stating the various links of the pedigree down to one A., alleged that A. died in 1851, leaving his grandnephew B. (one of the defendants) and his niece C, the plaintiff's late wife, his co-heirs and co-parceners, who there- upon became the right heirs and issue in tail of S. ; and it was considered a sufficient allegation of the facts of the title, the V.-C. Kindersley saying, " If the plaintiff had made a mere loose state- ment, as that A. left B. his heir, that would not be reasonable certainty of allegation ; or- if he had said that A. left B. his cousin and heir, that, from the generality of the word cousin, would not be a sufficiently certain allegation. But what he has done is, to allege that A. left one his niece and the other his grandnephew; and I think those terms desig- nate the relationship with sufficient certainty" {x). Pedigree need These cases show that the rule laid down in the only be sub- , r -n t tt stantiauy set above case ot iJaker v. Harwood, that all the links and facts necessary to establish an heirship must be stated, will not be enforced strictly; but that the Court will be content with such averments of facts as expressly show the relationship to the predecessor, and substantially imply all the other links in the pedigree. When that is done, there is made out (k) Ford V. Peering, 1 Ves. jun. 72. («) Wright ». Vernon, 1 Drew. Zii, 352. out. AND NOT MEEELr CONCLUSIONS OF lAW OK EQUITY. 29 upon the facts a prima facie title, and the bill will niustrations not be demurrable. It will then lie upon the other side to raise by plea or answer the question whether that title is good, and to produce facts showing its defect. In a late case(y), however (if it be correctly reported), V.-C. Wood seems to have gone further, and to have held that a simple statement that A. died, leaving the plaintiff his heir, would be sufficient. But as the judgment expressly professes to follow the above cases of Delorme v. HoUingsworth and Ford V. Peering decided by Lord Thurlow, it is pre- sumed that there must have been some indications in the pleadings of the way in which the plaintiff made out his heirship. This seems more probable, seeing that his Honor deemed the choice to lie only ^between the ruling of Lord Thurlow and that of V.-C. Shadwell in Baker v. Harwood, which required all the links to be set out; and seeing also that otherwise the case would be in direct conflict with that of Wright v. Vernon. To require, however, a plaintiff to set out his title litietosne ^ ' ' i- the defendant in all cases fully, would be to make him give an ab- oniyrequirej. stract of his title. This is not what is meant. All that may be necessary to show that he has a title to sue the defendant, is alone proper. For this purpose ^ he must trace back his title to some point where the j diverse interests of the plaintiff and defendant com- menced. Thus, in a foreclosure suit, the mortgagee's Mortgagee's title must be traced back to the mortgage deed ; for both parties to that deed acknowledged the earlier title and are in privity as to it, their separate interests diverging at that point. If the original mortgagee (y) BaiTS V. Fewkes, 12 W. R. 666; 10 Jur., N, S. 466. 30 FACTS MUST BE STATED, iiiutimtiom is the plaintiff he need only state the mortgage deed under which he claims. If a transferee of the mort- gage is claimant, he need only show how his title was Mortgagor's derived from the mortgagee. And so, in a redemp- tion suit, the plaintiff need only trace his title to the mortgage deed, under which his title to redeem Between Springs. And again, in the case of a suit arising out iSsee. of a lease, the rights of the parties spring out of the lease, and that only is the root of title to be stated ; Principal and, in like manner, where a man employs an agent and agent. . , . . or bailiff to receive his rent or tithes, the rights of the principal and agent as against each other are independent of the real title, and the origin of the Company and agcncy Only need be set forth (z). And so, where a bill was brought by the holder of shares in a com- pany, some original, and some derivative, against the company, he was bound to state the facts, showing how he became such shareholder, thus placing him- self in privity of contract with the company ; and in default, a demurrer was allowed (a). piima/acie I And in all cases where there has been no transac- better title I . , i . i i only required, jtion by which the advcrsc claimants are in privity as to the earlier title, it is only necessary for the plaintiff to state suflScient to show a prima facie better title than the defendant, just as in an action of ejectment he would be bound to do. Thus, where the plaintiff claimed as heir of A., and it was alleged that the de- fendant took possession after A.'s death under some pretended will of A. which never existed, it was held sufficient without stating any further title in defend- ant, though as the heirship of plaintiff was not con- (s) Dan. Ch. Pr. by Headlam, 310. (a) Walburn v. Ingilby, 1 M. & K. 61 ; but see post, p. 50—54. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 31 sidered to have been shown properly, a demurrer was mustratwns allbwed(6). "^faa- In another case the plaintiff alleged, that J. Houghton, " being or claiming to be seised or other- wise well entitled in fee simple to divers messuages," devised the same to his widow for life with remainder to the plaintiff in fee : that upon the testator's death, and under and by virtue of his will, the widow entered and took possession : that the widow died and " the plaintiff thereupon became and now is in- defeasibly entitled to an estate in fee simple in pos- session, &c. in the messuages so devised as afore- said :" that the defendant wrongfully took possession of the said messuages before or immediately after the death of the widow. It was held that the plaintiff had stated a sufficient title : and that the statement that the plaintiff was seised under the will substan- tially averred a better title, and showed how it was derived from a period anterior to the defendant's pos- session ; it was not necessary to aver a seisin in the ancestors or any of those through whom the plaintiff claimed. " I do not see how in pleading, the title is made better by being carried back a step further. An abstract is no doubt unsatisfactory if it commence at a date which is too recent; but an averment in pleading of the title of a party is not made niore positive or certain by the statement that his ancestor, or those under whom he claims, were also entitled. The question of the sufficiency of the pleading, in this sense, is a very different question from that of whether the case is so ambiguously stated as only to show a possible title in the party to the right which (i) Baker v. Harwood, 7 Sim. 373. 32 FACTS MUST BE STATED, niustrations he claims, without showing the nature of his title" (c). primd facie In a bill filed by the lessee of a lay impropriator oniyrequked. against an occupier, for an account of tithes, it was held that the plaintiff must state not only the lease, but the title of the lessor to the fee, so that the de- fendant might not be called to pay twice the same tithes to different persons {d). But though he must state in whom the fee is vested, yet he need not de- rive that title in fee from the original impropriation, further than the defence renders necessary to show a better title (e). And where a plaintiff claimed, as a lay impropriator, the tithes in a particular piece of ground, but had not been in possession or receipt by himself or his predecessors of those tithes since the time when both the rectory and lands had been in the possession of a common owner who had conveyed the lands to the predecessor of the terre-tenant ; and it was stated by the answer, that since the time of Edward VI. the lands had been reputed tithe free and no tithes had been paid, and that there had been an ancient church and churchyard in the parish ; and therefore if there had been an impropriation the lay rector would have been bound to provide for the services, and endow a vicar of tfie church (which had not been done), unless the impropriation was before the 15th Rich. III. : it was held that, under the cir- cumstances, the plaintiff ought to have set out the grant from the Crown and subsequent enjoyment under it (though all the intermediate conveyances (c) Houghton V. Reynolds, 2 Ha. 267. {d) Penny v. Hoper, Bunb. 115; Burwell v. Coates, Bunb. 129. (c) Crayhorne v. Taylor, 1 E. & Y. 795. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 33 needed not to be stated), as the title by presumption niustratwm from possession did not apply to these particular lands and tithes (/). Having settled, however, whence the title is to Manner, &c. , , . 1 T 1 ^'^'^^ acquired . spnng, it would seem that, as a general rule, the manner and time of assignment and derivation must be shown {g) ; as upon these will depend the legal conclusion, whether any interest and any title to sue is in the plaintiff by virtue of the assignment. Thus, where a plaintiff claimed as assignee of a debt due to one who was a beneficiary under a composition deed, and filed a bill against a purchaser from the trustee of that deed, and the trustee, to enforce the deed, alleging, that the sale was at an undervalue and procured by bribery, and a refusal on the part of the trustee to sue the purchaser for the purpose of setting aside the purchase, and merely stated that he " was the assignee of the debt," a demurrer was allowed, as it was not shown " whether he is assignee in bank- ruptcy or insolvency, or in what capacity, and whether by any assignment in writing, contract or agreement." There were, however, peculiar circumstances in that case which rendered it necessary to enter into the " how and when the plaintiff acquired the right." " These particulars are of some importance with re- ference to the doctrine of champerty," as the right might have been vested in the plaintiff only after the refusal of the trustee to act, which would have made the assignment a transfer of a chancery suit (A), Under this Rule it is that the Court will not gene- fraud or mis- ° behaviour. (/) Norbury v. Meade, 3 Bligh, 211. (g) But see post, Chaps. II., IV. (ft) JerdeiD v. Bright, 2 J. & Hem. 330, 331. C5 34 FACTS MUST BE STATED, nimtmtions rally entertain a charge of fraud or misbehaviour, unless some special circumstances in support of it behaTiour™' are distinctly put in issue and fairly substantiated ; and even if there be a general charge, it will be referred to and interpreted entirely by the particular facts stated, and cannot be proved otherwise ; and if these facts afford doubtful proof of the fraud, the generality of the charge will not cure the defect, but the charge will fail (i). Rule does not It would secm, howevcr, that where the fraud or apply to fraud ■' ' , , orcovinieing covin is a matter of intention it may be averred in matter of iTi- "^ tention. general terms [at law], because the intention is a matter of fact for the jury (A). The fraud is there a mixed question of law and fact (Z), but the intention is a question of fact (though it may be a necessary conclusion of law to decide that such intention is legally fraud), and the general terms expressive of fraud are sufficient to designate that intention and admit to proof. In no other cases would the general allegation it seems probabltt suffice : and thus, an averment that a contract was obtained by fraud and misrepresentation, would probably not do, where the fraud lay in the misrepresentation and not in any secret intention {m). The fraud, in such a case, would be an inference from the fact alone of mis- representation and not dependent on the particular intention with which it was made, if it was the duty (i) Munday ». Knight, 3 Ha. 497 \ 8 Jur. 904 ; Attwood o. Small, 6 CI. & Fin. 394. (/t) 9 Co. 109; Shep. Epit. 261, "Collusion and Covin," s. 8; Stark. Ev. 781. Q) Stark. Ev. 784, u. (m) Id. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 35 under the circumstances of the party to make a full niusirations and feir disclosure («). The reader may find it stated sometimes in the General T-v' /I in- n Charge Of Digests (o) that a general allegation of fraud requires ''■^*.^j™ no answer and will not support a decree; but this seems not borne out except in cases where the fraud is a matter of law. In those cases it is true (,p). In cases of fraud depending on intention, and therefore \ being a matter of fact, it would seem probable that in ) equity, as at law, the general allegation would suffice ; / and consequently, where in the case of a general allegation it cannot be determined, till the evidence, whether it be one where the fraud is a question of law or fact, it would seem that some answer ought to be given to the general charge (q), and on the ground (stated 9 Co. 109, and Shep. Epit. 261) that such fraud is mostly a secret afiair and hard to be learnt by a stranger, no special matters would pro- bably be required to be alleged even for the infor- mation of the defendants The doctrine, indeed, laid down in Myddleton v. Lord Kenyon related to the insufficiency of a charge of fraud, evidently not de- pending on mere intention, and was based, moreover, on the ground of the vagueness of the charge and not of its being in general terms only. There the charge stated that a deed was executed on a " misappre- hension and misrepresentation of the plaintiff''s real situation," but referred to no one person as having (n) See Attwood v. Small, 6 CI. & Fin. 444 ; and post, p. 46, (o) Chit Eq. In. 1603 (3), quoting Myddleton r and debtor, creditor, partner, &c. misled the plaintiff, and the bill asked to have the deed declared null and void, and Lord Eldon said " standing as it does in this bill, misrepresentation connected with misapprehension and applied to no one person, the allegation is totally vague and calls for no answer" (r). It has accordingly been held that a general charge of fraud would be sufficient in a bill against an exe- cutor and debtor or creditor to justify making the latter a party to an administration suit (s), and also in a similar bill against an administratrix and surviving partner for making the latter a defendant (J.), though, as a general rule, the personal representative is the only person to maintain or defend proceedings in respect of the estate of the deceased, and there is no privity between the legatees and creditors and the debtors and partners of the deceased (m). In these cases the fraud was, that secret fraud or collusion depending on the intention, which it was impossible for the plaintiff to set forth otherwise than by a distinct charge of such fraudulent intention. And as to the facts, from which it might be inferred or presumed, they lay more particularly within the knowledge of the defendants, and the plaintiff was relieved on that account (as we shall afterwards see) from detailing (r) 2 Ves. jun. 402 ; and see post, pp. 41 — H, 77, 78. (s) Allsager v. Johnson, 4 Ves. 217 ; Allsager v. Rowley, 6 Ves. 748, 749. (0 Newland «. Champion, 1 Ves. 106; and see S.C. in Law v. Law, 2 Coll. 41. (m) Dan. Ch.Pr. 312, 313; Burrows «. Gore, 4 Jur.,N. S. 1245, by which it appears, that if there is an impossibility in gettino^ and as- certaining the personal estate of the deceased without partnership accounts, the partner may be made a party. AND NOT MERELY CONCLUSIONS OF LAW OK EQUITY. 37 them. And so where, in a bill to set aside an award nimtrations of Rule. for partiality in the arbitrator, there was a general ^ j— — , ^ •' _ _ ' ... Partiality ot charge of partiality, but no facts were put in issue in ™ arbitrator. support of itj though there was parol evidence of a declaration by the arbitrator showing his partiality, Lord Chancellor Hardwicke said " If a bill is to set aside an award for fraud, imposition, partiality or undue practice, it is not necessary in the bill to charge minutely every particular circumstance, for this is a matter of evidence every part of which is not to be charged. But, notwithstanding, when the cause turns on it and no notice or opportunity is given to the other side to answer it, the Court ought, if possible, to put it in some further method of inquiry," and he directed such inquiry accordingly {x). On which we may remark, that if it is to be taken as a general ex- position of the rules as to fraud of all sorts, it clearly cannot now be considered as the practice of the Court in all cases (y) : but, so far as related to the case before the Court, that was entirely one of a wrongful intention, which was a fact sufficiently stated by the general charge, from which the Court would draw its conclusion as to the fraud in law. Lord Eldon, however, said (z), that it would be very Facts from , / , . , i which it is convenient to have some facts upon which such interred . * . . better stated. allegation is founded, as there is great inconvenience in joining issue upon such a general charge without giving the defendant a hint of any fact from which it is inferred — and certainly it would not be prudent wholly to disregard what the Court thinks con- («) Chicot V. Lequesne, 2 Ves. sen. 318.' ( j) See post, pp. 41—44, 77, 78. («) Benfield v. Salomons, 9 Ves. 87. 38 FACTS MUST BE STATED, General charge of fi-aud when sufficient. Munday v. Knight ex- amined. "^o/Ru£'^ venient, where the plaintiff has any such fact to state. In the case of Munday v. Knight (a) before quoted, a general charge of " fraudulent contrivances" was held insufficient on demurrer. But there the plaintiff stated on the bill that the defendant was a purchaser for valuable consideration, and that " by the fraudu- lent contrivances of the vendors and [certain other persons] and the defendant, the plaintiff was kept in ignorance of his rights ;" and consequently the fraud (if any) must have been, not in assisting in the com- mission of the original fraud, but in not revealing the weakness of his title to the plaintiff, unless it was meant that the defendant, when he purchased, had • notice of the original fraud under which his vendors required the property. Either of these charges of actual participation in the original fraud, or of notice, would have saved the plaintiff's rights under the 26th section of 3 & 4 Will. IV. c. 27; but then they should have been distinctly stated, otherwise his rights were barred by that section. The decision was that the fraud was too " vaguely," not too gene- rally, charged, — that is, it was not a distinct though general charge of such fraud as the statute refers to, — and that the notice was not charged at all, and could not be inferred from the facts mentioned. The Court said finally, " It is the case of a fishing bill, and I am only following the decided cases when I say, that these charges are too vague to sustain it" (6). In a late case (c), V.-C. Kindersley allowed a (a) (1844.) 3 Ha. 497. (i) Id. 502. (c) Bothomley u. Squires, 1 Jur., N. S. 694. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 39 general demurrer to a bill charging fraudulent col- mustrattons lusion and concealment of a will and title-deeds, on the ground of the vagueness of the charge, but refused the costs, because the demurrer admitted collusion. \ This the demurrer would not have done, if the fraud J had been a mere inference of law and not a fact. The bill did not show how and when, and how long and from whom, the deeds had been secreted, and with whom the defendants had colluded, or whether they had been asked to produce the docu- ments ; so that there were no definite facts which the jjlaintiffs could prove so as to entitle themselves to a decree. And, on the other hand, it is not necessary to Fraud need charge fraud or coUusion eo nomine, if it is in sub- charged eo 11 1 1 • p 11^1 nomine. stance alleged — as by statmg facts, and that by such neglect they [the executors] countenanced and assisted [the other defendants] in misapplying the assets" (rf), or by facts showing concert in a wrong- ful act — e.g., where it was alleged the executor was one of a firm which wrongfully detained funds (re- mitted to them on behalf of the testator) in payment of their own debts, and all the partners were made defendants (e). A distinction must also be taken between those whenpaiti- , * . , , . . culars of mis- cases in which the particular misbehaviour is ma- behaviour . 1 • ^ must he set terial to the case and relief, and those in which a out.andwhen more general proof of misbehaviour would sustain a decree. In the former, the particular fact of mis- (d) Bowsher v. Watkins, 1 Rus. & M. 277. (e) Gedge v. Traill, 1 Rus. & M. 281. See also Att.-Gen. v. Cor- poration of Poole, 4 My. & Cr. 28 ; Myddleton v. Lord Kenyon, 2 Ves. jun. 402 ; and other cases post, as to fraud not matter of fact. 40 FACTS MUST BK STATED, Where par- culara of aud need be stated. Illustrations behaviour must be stated, so that a definite decree of Rule. ■ ' may be made limited by it-^e.^., where a misappro- priation of funds has been .made and an account of t-hem is required. In the latter case, it is sufficient if the directions in which the misbehaviour has oc- curred are set out so as to enable an issue to be taken on them — e.g., where the misbehaviour was stated in an answer as a ground for not reappointing the plaintiff as deputy to execute an office according to agreement (/). In that case it was charged that plaintiff "had not accounted for several fees," "he had taken several fees which were not due," " and had concealed several instruments and writings be- longing to the office." In both cases such facts are required as would support a decree ; but in the former the extra particularity of statement is required on account of the particularity of the decree sought, because the relief given will be distinctly restricted to that which the particular circumstances of fraud or misconduct show the plaintiff is entitled to {g), and therefore the particular wrong done by the fraud should be traced out by the facts, and a remedy asked accordingly. " A bill to have a general account, for so general an act of fraud, to me seems improper. It ought only to have been to correct anything that had passed unsettled through fraud" {h). But if, in the case of the more general statement of the fraud or misbehaviour, there is any ground for believing the other side has been taken by surprise, directions may be given for further inquiry (i). (/) Wheeler v. Trotter, 3 Swan. 174. (g-) Id.! and Evans v. Bicknell, 6 Ves. 174. (h) Palmer v. Mure, 2 Dick. 489. (i) Wheeler v. Trotter, 3 Swan. 177; hut see post, p. 47. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 41 The true ground of the general rule as to fraud • nimtraUons and its limits may be gathered from the case of A 1 i~i 11 T rr,! Grounds 01 Attwood V. Small («). There a defendant was tiwrmeas to fraud. charged with fraud, which was attempted tO be -Attwood «. made out by his acts and declarations, and by his ,. mlnedr^'' keeping back papers which should have been fur- nished to the plaintiffs, and Lord Brougham said, " The bill is amended, but the amended bill is in this part of it precisely the same as the original bill ; it is just as vague and general, ' all books, books of accounts, copies of letters, extracts from letters, receipts, memoranda, papers and writings ; ' not one word about stock papers. The defendant has a right to know what is the charge of fraud that is made against him, and which he has to meet. He is charged with keeping stock papers, from which a yield account might be made, and wilfully sup- pressing them when he brings forward another paper. He has a right to have his attention speci- fically directed to the charge, that he may know how to meet it, that he may know what to produce, and, above all things, that he may in his answer give a full explanation if he can. No such notice is given, no such opportunity for explanation is afforded him, no such specification of particulars, as to let him know what they would have him account for, explain and answer." [And then in reference to other acts and declarations of the defendant.] " This is' not the way to put a party upon his defence upon a charge of fraud ; you must charge it in particular, specifically, and in detail; you must give him the opportunity of knowing what charge he has to meet, (i) 6 CI. & Fin. 489, 490. 42 FACTS MUST BE STATED, ■^"/Sf'" ^°" ™"^*' S*^® ^'°^ *^^ opportunity of explanation, because the words imputed may not have been used rule as to at all, ot he might have satisfactorily explained them in a way which would give them an innocent aspect. The rules of pleading and proceedings in Courts of Equity require such specification as shall enable a party so charged to meet the charge by denial, or by admission, or by explanation, or by confessing and avoiding, or by giving the residue of the con- versation, a parcel only of which you think fit to put upon your bill. . . . Let us see what has been said on this subject by Judges in Courts of Equity. In the case of Evans v.. Bicknell (Z), Lord Eldon said, ' as far as the allegations in the hill give an opportunity of answering, I will decree, but no fur- ther.' And again his Lordship said, 'that the bill ought, with reasonable certainty, to put in issue the allegations of fraud or misconduct, upon which it was the intention of the party to rely against the defendant.' Chief Baron Richards made similar observations in the case of Hall v. Maltby" (rn). From these remarks of Lord Brougham it may be gathered that both the charges of fraud, and the facts on which they are founded, must be specifically placed on the record, in order to enable the de- fendant to meet or admit them in his answer, — that is, they must be subjected to an issue, so that the material facts and the points of law in contention between the parties may appear on the record, and the decree may be made according to the result of the issues. This will further appear from the (0 6 Ves. 174. (m) 6 Price, 240. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 43 passages quoted from Lord Eldon; and from the ^'^"^"J^"'" fact pointed out by Lord Lyndhurst in the same case (w), that the defendant had direct notice given him of the particular circumstances on which the charge of fraud was based, the particular stock papers were pointed out to him by a distinct notice, and the names of the witnesses by whom they would be proved; and, therefore, the decree could not have been founded upon the ground, that, by the general allegations of the bill, the defendant was taken by surprise and could not meet the case on the evidence. The Lord Chancellor (Cottenham) said, in reply to Lord Lynd- hurst (o), the case as to the papers ought to have been on the record. Now some of the above quoted remarks as to particularity of statement were made in reference to parol testimony of acts, declarations and admissions in support of the charge of fraud and concealment, and apply to all such statements, and to those establishing fraud consequently ; but, as will shortly appear (p), their foundation is in the rule, that the defendant must not be actually taken by surprise, and, probably, will have less pertinency under the new practice. And we therefore repeat, \ that it is important to bear in miad, that the par- \ ticular allegations of fraud, and facts in support, are j required for the issues and decree, under the rule as I to conclusions of law, and not merely to prevent J surprise. Accordingly, since the new practice as to evidence, the rule laid down in the above case {q), (n) 6 CI. & Fin. 412, 518. (o) Id. 519. (p) Post, Chap. IV. (?) 6 CI. & Fin. 487. 44 FACTS MUST BE STATED, ""'^'S?" that each particular of fraud or misrepresentation is a distinct case of fraud, &c., and requires " a distinct Grounds of • i i ,. i o • j rule as to statement to show in what such fraud, &c., consisted, fraud- 1 . ' . which, when charged, ought to be set forth in par- ticular allegations," still holds good (s). And in a late case {t), where the bill alleged that the de- fendant claimed to be entitled to certain property under certain deeds mentioned,- " that these deeds were a fraudulent contrivance on the part of the de- fendant to obtain the said hereditaments without payment of the value thereof; that the deeds were without consideration, and that no consideration passed, and that the several deeds were fraudulent and ought to be set aside. . . . And that the parties interested under such deeds were his chents, and acted under his influence and for his benefit." The Lord Chancellor said, " The bill alleges in various forms, that the annuity deeds were the result of a fraudulent contrivance, and were fraudulently obtained, but the circumstances constituting that fraud are nowhere stated. Fraud is a conclusion of law, and it is wholly immaterial and insufficient that a deed has been obtained by fraud, unless the things done constituting the fraud are stated on the face of the bill. There is here not one single allegation of any fact constituting fraud, or tending to create a case of fraud, except that the deeds were without consideration, and that the consideration did not pass, whatever may be the meaning of these words," — and he allowed a demurrer. And so, too, where it was alleged that the defendants were aware of (s) On demurrer, Croskey v. Bank of Wales, 9 Jur., N. S. 596. (<) Gilbert v. Lewis, 11 W. R. 223. AND NOT MERELY CONCLUSIONS OF LAW OK EQUITY. 45 various other material facts and circumstances which illustrations they fraudulently concealed from the plaintiff, the " — —' bill was held demurrable because the facts were not stated, so that the Court could judge if the con- cealment was fraudulent. The particular things con- cealed should have been stated (w). Before leaving this subject it may be necessary to Deficiency in V. .... 1111 1 averment of mention a case (ar) in which it was held that a charge facts not sup- of constructive fraud, which was imperfectly made in answer. the bill, was supplemented by the allegations of the ooramei- answer. There, the defendant had threatened to '™'"<=*- proceed against his brother for the recovery of pro- perty on the ground that he was illegitimate, and had stated that he knew of no marriage between his father and mother previous to the plaintiff's birth. Upon this a family compromise was effected; and the plaintiff, finding out that a private marriage of his parents had taken place and that thereby he was legiti- mate, filed a bill to set aside the compromise, stating the above facts, and that he had been led to believe by the defendant that he was illegitimate (y). The defendant in his answer stated that he had been informed that plaintiff was illegitimate, and denied his belief that there was such private marriage. From the evidence it appeared not only that there was such marriage but that the pl aint iff had been '^*^( informed of it, and it was decided that though " the pleadings on the part of the plaintiff seem not so ample as they might have been with reference to so singular a case, but it must be considered whether (m) Bainbrigge ». Moss, 3 Jur., N. S. 59. («) Gordon v. Gordon, 3 Swan. 400. \y) Id. 461. 46 FACTS MUST BE STATED, Illustrations of Rule. Deficiency of averment of facts not supplied by answer. Minor items and admis- sions, &c. need not be stated — Qu. the allegations of the defence have not opened a case within the statement of the bill however general; and it must be recollected that it was competent for the defendant, by a cross bill, to obtain from the plaintiff an answer supplying all the defects of the record" {z), and the decree was made for the plaintiff, on the ground of the suppression of the information which should have been communicated. It is difficult to see how the answer did open out any case within the general charge, in any other sense than it showed the defendant had no doubt as to what the charge related to. It did not in fact put the particular fact or the suppression or fraud upon issue on the record at all (a); it did not allege that the defendant knew of the private marriage (whether valid or not) and neglected to reveal it. And, from the above case of Attwood V. Small, it seems probable such a decision would not be given now. There the charge of suppression was actually made though in somewhat general terms, and the answer expressly opened up the inquiry under it, and it was held that the particular suppression should have been put in the bill (5), — it should have been stated in substance that a particular misrepresentation was made and that knowingly (c). If, however, any weight is to be attached to the remark as to de- fendant being able to file a cross bill and obtain an answer supplying all the defects of the record, it would appear that greater latitude would be allowed now that a defendant can interrogate the plaintiff (2) Gordon v. Gordon, 3 Swan. 474. (o) See Attwood «. , 1 Russ, 353. (6) 6 CI. & Fin. 517—519. (c) Id. 444; and see Burton ». Blakemore, 2 Jur. 1062. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY, 47 without resorting to a cross bill. And indeed so nimtratians , . 11 T • 1 ctfRliU. long as jacts are alleged, in however general terms, but with certainty and subject to the rules against extreme vagueness and looseness in pleading here- after examined (d), and the fraud is indicated so as to define the relief sought and its extent, it might seem reasonable to follow rather more the practice at common law now that, under the new practice as to evidence, the means of doing so are at hand, and to state only the material facts constituting the fraud, and not the minor items and particulars or the con- fessions, conversations and admissions proving the facts of fraud. This course would seem to be in unison with the inclination of the Courts and the demands of the statute (e). Another illustration of the rule before us is afforded Bankruptcy. by the case of Carleton v. Leighton (/). There, a plea set up that the plaintiff had no interest in the subject matter, "for that in 1792 or 1793, before the date of either of the wills, a commission of bank- ruptcy was duly issued against the plaintiff, under which he was duly found and declared a bankrupt, and all his estate and effects were thereupon duly transferred and assigned to John Jackson of, &c." It was ruled by Lord Chancellor Eldon that the plea was bad, because it did not state " all the facts suc- cessively and distinctly ; that to admit such a mode of pleading by general language would be very incon- venient, for although in the present case the party opposed to the plea being the alleged bankrupt him- (d) Post, Chap. II. (e) Post, Chap. IV. (/) 3 Mer. 667. 48 FACTS MUST BE STATED, jumtrations self, the Several facts would be within his knowledge of Rule. ' . if issue were joined, yet such a plea used against third persons unacquainted with the facts would be attended with great and unnecessary trouble ; that it was no defence to say that the averment that the plaintiff was duly found a bankrupt would supply any preceding defect ; that a man may be duly found a bankrupt (that is, according to the evidence before the commissioners) and yet not be so ; for that the assignees are obliged, at law, to submit the whole facts to the jury the first time they have occasion to try any question, and that jury may decide that the party was not a bankrupt" {g). Now this judgment is divisible into two portions : the first, which says that to establish a bankruptcy it is necessary not only to show that in due course of law a man was found a bankrupt, but to set forth the circumstances from which that finding followed ; and the second, that the statement of such circum- stances could not be evaded by the averment that the finding was duly made, because it would not be conclusive even then. And so far the judgment is comprehensible; for bankruptcy or not was a con- clusion of law to be drawn by the Court (A), and not by the parties, on the facts of the case, which must therefore have been stated on the pleadings. And this is true, though Lord Eldon speaks as if a jury would have had to determine the question of bank- ruptcy, which is not exactly the case, for the jury {g) This would not be so under the later Bankrupt Acts. See 5 & 6 Vict. 0. 122, ss. 24, 42 ; 24 & 25 Vict. c. 134, ss. 161 et seq., 203. (A) Stark. Ev. 771, n. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 49 would only have found the facts subject to the ruling nimtrations of the Judge (and an appeal to the Court in Banc), "tLJ^i" as to what they were to consider as circumstances of bankruptcy. This explanation is necessary to show the meaning of Lord Eldon's words in the beginning of the judgment, which seem at first sight to ignore the well-established distinction (hereinafter stated) between the fullness and particularity of statement requisite where the facts are, and where they are not, peculiarly within the knowledge of the other side. The remarks were pointed at the great and unnecessary trouble attendant upon any practice of pleading con- clusions of law instead of the several facts. Such a practice might, in individual and exceptional cases, where the other side was fully master of all the facts, not hinder him in raising distinct and definite issues upon some questions of fact involved ; but, generally, even though he might know the facts, and still more, if he was at all a stranger to them, there would be very likely a difficulty in answering, by reason of the uncertainty as to how the conclusion was intended to be supported by the facts. The plaintiff could wait for the answer and vary his proofs accordingly, and there would be on the evidence a want of close- ness and distinctness of issue. The evidence would interlace instead of conflict, and the circumstances for the consideration of the Court, from which the conclusion of law should be drawn, would not be clearly proved or disproved. The case, however, Exception to seems to hint at the possibility of a general allega- iimted at. tion of law being sometimes sufficient, on the ground, id certum est quod, cerium reddi potest. Thus, if the statement that the plaintiff had been duly found a L. D 50 PACTS MUST BE STATED, niuttrattom bankrupt could have been taken to mean that the — ^' whole facts Juid been brought before the commis- sioner, this would have been equivalent to saying that he was a bankrupt and giving the evidence in support of the averment, and the objections made to the pleading would have failed. The exception here referred to, we shall presently find to be admitted in certain cases ; but the principle of it does not apply to such a mode of pleading bankruptcy under the old law of bankruptcy, though it does under the new law. Shareholding. Another case affording an illustration of the general rule, and at the same time indicating its limits and the exception just referred to, was the case of Wal- burn V. Ingilby (i). The bill stated the regulations of a company as to the holding and purchase of shares, and that the plaintiff had "purchased at various times for valuable consideration certain shares upon which the said first instalment of bl. had been duly paid, and he had ever since been, and now was, the holder of such shares ;" and again, that " the plaintiff at various times became the holder for valuable consideration of 1,000 [other] consolidated shares, for which scrip receipts appeared to have been duly exchanged by the hona fide holders thereof, and that he had ever since been, and then was, the holder of such consolidated shares." The company was, as the law then stood, a mere partnership, unregulated by the Joint Stock Acts, and the bill was demurred to because, among other things, the plaintijQT had not shown on the pleadings his title as a shareholder to sue. The Lord Chancellor said, " The plaintiff al- leges his title to be as a shareholder by purchase, and (i) 1 M. & K. 61. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 51 he does not set forth how. He does not derive his mustratums title. He merely says that he purchased for valuable consideration divers shares upon which the first in- stalment of 51. per cent, had been paid, and that he ever since has been, and now is, the holder of such shares. Now in another part of the bill it is alleged, that by the rules of the association, as set forth in the prospectus, no transfer of shares could be valid at law or in equity, unless the purchaser was approved by a board of directors, and signed an instrument binding him to observe the regulations. Is this merely directory, or is it a condition precedent ? I am of opinion that it is a condition precedent, and that the performance of it should have been alleged. A demurrer, it is true, admits all facts that are well pleaded ; and it is contended, that here the allegation of the plaintiff having purchased shares, and being a shareholder is admitted, and that therefore the rules must be assumed to have been complied with. Nothing to the contrary appears on the face of the bill to which of course we are confined. This, how- ever, depends wholly upon the purchase and holding of the shares being well pleaded. But shareholding is not sufficiently known in the law to make the mere allegation of it intelligible without more. Nor are shares or the purchase of shares things known in law. The shares may be anything, and may be quite different in different companies ; the mode of holding them may be divers. The manner of transferring them may be indefinitely varied, even where the interest is one recognized by law, and the thing is well known ; as in the case of a transfer of a bill of exchange, which is a transfer of a chose in action d2 52 FACTS MUST BE STATED, "'ofRfh"' l^g^l'^ied by express enactment ; or the case of an assignment of a reversion at law, the title of the plaintiff must be set forth specially, and if there be any conditions precedent, the performance of them must be alleged." g^xi^tionto Now here the question was, whether the plaintiff further In- had alleged sufl&cient circumstances to show that he had an interest which would entitle him to sue. Whether he had such interest, was a conclusion of law dependent upon the fact of his compliance with the terms of the company's deed of settlement. And the judgment seems to lay down the general rule and indicate some exceptions to it. In the first place, it decides that the performance of the con- ditions must in some way be alleged, so that the , conclusion of law may follow. Then it says, that where a thing is not known to the law, but is entirely the creature of private arrangement, such perform- ance will not be properly pleaded by the use of a term, which is not by the law defined to include such performance, so as to make the use of it intel- ligible without more; thus the holding of " shares" in such a company was not recognized at law, nor had the term " shareholder" the meaning of a person possessing the rights conferred by the arrangement on those who had conformed to the stipulations. We infer that where the thing is known to the law it may sometimes be expressed in the terms (if any) known to the law without specially referring to the conditions precedent. But then the term known to the law must be " intelligible without more," — a posi- tion illustrated by two instances in which the pleading of a term known to the law would be insufficient. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 53 and it would yet be necessary specially to allege the iiiustratiom circumstances, because such compliance might take ''{_^- place in divers ways. The criterion seems to be, whether the term is " intelligible without more ;" and its being a term known to the law only renders its use admissible sometimes, because it is therefore so intelligible. Consequently if the thing can only be valid in one way, it will not be necessary to allege specially, but it may be suiBcient to allege in any clear general terms the compliance with the requi- sitions. The principle of these observations would apply also to a creature of private arrangement as well as to a thing known to the law, if by that arrangement certain terms such as " shares" or " shareholder" were clearly defined to express compliance with the conditions precedent of the arrangement, and such compliance could only take place in one way and not in divers ways; for then the term would be intel- ligible without more. Indeed one can hardly help thinking that, from the language used by the learned Judge, this exception to the general rule was in his mind. It may perhaps, however, be doubted whether such an allegation would not be that of a fact, seeing that the parties themselves had put their own inter- pretation on the term used, and could not object to its being employed to express a certain series of facts; and then the only office of the Court would be to determine whether, upon such facts so stated, the party had an interest in the concern. But still the principle of the observations would probably apply to such an allegation, and determine whether it was a substantially certain allegation of the particulars included. 54 PACTS MUST BE STATED, Illustrations of Rule. Shares in joint stock company. Adverse pos- Under the Companies Clauses Consolidation Act(^) and other joint stock companies acts, the terms "shares" and "shareholder" have acquired a distinct legal meaning, and the manner of acquiring shares is provided, and the register of shareholders or a certi- ficate are ma.de prima facie evidence of shareholding. But the register is not conclusive evidence of share- holding, and it seems doubtful whether a person may not be a shareholder for some purposes without being registered (I). It may be unsafe, therefore, to allege that a party " duly became" or " is" a holder of so many shares in such a company, because the terms, though known to the law, are perhaps not certain in what they include — whether a registered shareholder who has complied with all the things necessary to registration, or one who has acquired an interest in some other way, if there be indeed such other way (m). But it seems that an allegation that " the said F., on the day of , was a duly registered share- holder of seventy shares in the said company" would be sufficient in a declaration at common law (m), and upon principle should also suffice in a bill. In the subsequent case of Hardman v. Ellames (o), the defendant pleaded " that the possession of the said moiety, and the receipt of the rents and profits thereof, have been adverse to him, the plaintiff, ever since the death of the said John Hardman, the nephew." The Lord Chancellor said, " The mere (i) 8 & 9 Vict. c. 16. (l) Lindley on Partn. I. 120—124 ; id. sup. 191. (m) It seems the allegation would be sufficient; Parker v. Banks, 16 Sim. 176. (n) Rastrick v. Derbyshire, &c. Railway Co., 9 Exch. 149. (o) 1 M. & K. 739. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 55 general plea of ' adverse possession,' and still more a illustrations plea not only in those terms but framed with the " extreme generality of this plea is without any war- rant, either from precedents or from the general rules of pleading. The term ' adverse possession,' though of a known signification, is not used in pleading, and very rarely, I think only once or twice very recently, in the language of the statutes. It is a relative phrase, and it means such possession as is incon- sistent with another's right ; but it may consist in various things, and nothing can be more vague than an averment in bar of a right claimed by A. that the thing over which it is claimed has been in a pos- session adverse to that right, without setting out by whom, or how, and in what manner such alleged possession has been adverse. This plea gives no information to the party claiming, no notice of the defence he is to meet, and against which he is to prepare himself; for it may consist in various things, none of which are specified, and he is left to mere conjecture." And his lordship referred to the above case of Carleton v. Leighton. Here we must remark, ^ in the first place, that " the question whether the facts of a particular case fall within the general terms of a statute, is (at least usually) a question of law, whether the statute define the meaning of its own terms, or use them without definition, according to their ordinary acceptation and meaning," and " the rule applies to all statutory expressions, and to all allegations, however common and popular their sense and meaning may be"(p) : and, therefore, the question whether there was an adverse possession within the (p) Stark. Ev. 771, n. (*). 56 FACTS MUST BE STATED, ( ^/ Illustrations meanins; of the statutes was a question of law, for of Rule. , ° . . . ^ the proper raising of which there ought to have been, under the general rule, the particular facts alleged, Adverse pos- even though the terms "adverse" and "possession" are used in the statute. In the second place, the terms have not a technical meaning in pleading, certain in what facts they include and intelligible without more (though they are known to the law), and do not, therefore, entitle themselves to an ex- ceptional use. And, in the next place, if they are used to express the fact of adverse possession in the ordinary sense of the terms, they are objectionable (Hi^lffia_gTOuinds. They would not enable the Court to judge whether such possession was adverse in a legal sense — such legal adverse possession, depending on the terms of the statute, and being a relative phrase requiring for its settlement a knowledge of the facts of the particular case and the determination of the question whether any presumption of law inter- vened {q), so that the conclusion of law would not necessarily follow from the fact in the ordinary sense of the words. And again, the fact so stated would be too vaguely stated even as a fact, at any rate in a plea. It is submitted that his lordship in his de- cision assumed that the only question was, whether the pleading could be brought within the exceptions to the general rule. But that whether he did or not, it clearly was bad under the general rule, and such question was the only thing to be determined and that was determined. And the case supports the inferences we have drawn from the case of Carleton V. Leighton referred to in it, and from the case of (y) Shelf. Real Prop. Statutes, Stli ed. 180. Exception supported. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 57 Walburn v. Ingilby, viz., that an exception to tiie Jiegviatiom 11 1 II 1 • 1 ,. imposed by general rule may be allowed in the use of a term . statute. known to the law if it be certain in its meaning and I what it includes and intelligible without more, but \ not otherwise; and that the same measure of sub- ! stantial certainty must be applied to statements of facts also. But before more particularly illustrating the ex- ceptions pointed at in the last cases, we may state another branch of the general rule, with its exception, which is — " ITiat all the regulations imposed hy statute or common lato should he particularly averred ; but where the whole force of a thing is not derived from statute but the same thing could be done before, and the statute only imposes additional formalities, such formalities need not he averred" (r). This is a branch of the general rule, because it is the province of the law to determine whether or not the legal incident of the validity of the thing, is to follow from the actual circumstances of the case. In accordance with this rule, an agreement (which. Agreement. as a matter of fact, is aptly expressed by the terms which would apply to it as a conclusion of law) re- quired by the Statute of Frauds to be put in writing and signed by the party to be bound, may be intro- duced thus : " On or about the day of , by an agreement between the [plaintiff] and [defendant], it was agreed as follows : — ' Memorandum of agree- ment between of and of , made this day of . The said agrees, &c.,' " without stating the agreement to be in writing, or, if (r) Steph. Plead. 313, 373; 1 Saund. 276 a, n. (2). d5 58 FACTS MUST BE STATED, Reguiaiiom stated to be iu writing:, without adding that it was imposed by " «-* • statute, "signed by the said ," and it will be sufficient, and the writing and signature, or .the signature, as / the case may be, will be presumed : for that statute I only applies to things which could be done without the formalities of writing and signature before the statute, and gives no new power to do them (s). But of course if it clearly appears from the statements in the bill that the statute had not been complied with, a demurrer would lie; or even if "anything is con- tained elsewhere in the bill, or in the mode of state- ment, to indicate that the agreement was not signed, a demurrer might perhaps lie. Thus, where the plaintiff alleged in a bill for the specific performance of an agreement, that the agreement in which the defend- ant's name appeared was " in the handwriting of the defendant," and that the agreement had been part per- formed, the Vice-Chancellor, in overruling a demurrer for want of allegation of signature, held that the state- ments in the bill were not inconsistent with such sig- nature, and on that ground, and because there were other circumstances that might entitle the plaintiff to some relief, overruled it{i). But all that can be gathered from that case seems to be, that if the state- ments had been inconsistent with the fact of signature, and if there had been no other grounds of reUef, the demurrer might have held good. If both these defects had existed, there would have been no equity on the face of the bill. But if either the statements had been consistent with a signature, or there had been (s) Spurrier v. Fitzgerald, 6 Ves. 554 j Rist v. Hobson, I Sim. & Stu. 643. " (0 Field V. Hutchinson, 1 Beav. 599. AND NOT MEHELY CONCLUSIONS OF LAW OR EQUITY. 69 Other grounds of relief, the hill would have heen suf- Regulations ficient(M). In a late case, however, the V.^C. Wood "SLe." allowed a demurrer, on the ground (amongst others) that an assignment of a beneficial interest under a composition deed ought to have been averred to be in writing, so as to comply with the 9th and 10th sections of the Statute of Frauds (a;) ; but the posi- tion that compliance with mere statutory regulations imposed upon transactions, valid independently of the statute, need not be averred, does not appear by the report to have been taken ; and in another late case, where there was an allegation that the defendant "represented and stated to the plaintiff and expressly promised and contracted with the plaintiflF," and it was held to be an allegation of a mere agreement not in writing, and that writing would not be presumed and a demurrer would l\e{y), the position above referred to seems again to have been passed over. But in a later case, where it was averred in the bill that a conveyance, absolute in form, was in fact made without consideration and upon trust, the Master of the Rolls disallowed a de- murrer, and said, " It was clear that when the plain- tiflf stated in his bill ' I have purchased an estate in the defendant's name and he is a trustee for me, and I can prove it,' the defendant could not demur merely because it was not stated in the bill that the plain- \ tiff could prove it in writing. He must produce evi- dence in writing of the trust at the hearing, but his J («) These remarks are confirmed by the late case of Wood v. Midgley, 2 Sm. & G. 115 ; 5 De G., M. & G. 41. (x) Jerdein v. Bright, 2 John. & Hem. 330, 331. (y) Barkworth v. Young, 4 Drew. 1.^ 60 FACTS MUST BE STATED, Regulations imposed by Statule, Indenture, Conveyance, Honor was asked to introduce an allegation into the bill that the plaintiff could not prove what he said he could prove" (z). Again, an indenture may be stated thus : " By an indenture dated , and made between , it was witnessed [^or it was declared by and between the said ] as follows;" and it will be unnecessary to state the execution by any of the parties or any other formality, except where the deed is an exe- cution of a power given by any statute or other in- strument which requires special formalities: for an indenture is an instrument well known to the law with all its formalities, and so is what makes it inter partes. Further, it is not necessary to state that a con- veyance, agreement, &c. was by deed or indenture, if it would have been valid at common law without a deed- or indenture. Thus, a " conveyance with livery of seisin either in fee, tail, or for life, is pleaded with- out alleging any charter or other writing of feoffment, gift or demise, whether such instrument in fact ac- companied the conveyance or not. For such con- veyance might at common law be made by parol only "(a), and the formalities of a deed were imposed by the Statute of Frauds and the 8 & 9 Vict. c. 108. Enrolment of And SO it is Dot ueccssary to state that a bargain and sale was inroUed as required by statute, because it was valid before the statute without enrolment (6). It is the practice at common law, however, in the case of a lease under indenture to plead the in- (s) Davies ». Otty, 12 W. R. 682. (a) Steph. Plead. 312. (4) Harrison v. Hogg, 2 Ves. jun. 328 ; Coop. Eq. Plead. 181. bargain and saLe. AND NOT MERELY CONCLUSIONS OF LAW OE EQUITY. 61 denture (c) ; and in equity the indenture or deed is, in Regulations practice, nearly always averred, and, in fact, if it is statute. not, the legal effect must be stated, which it is fre- quently undesirable, as we shall see, to do. But it is orant oi in- to be observed, that where a deed, livery, or othei* hereaita- „ . . 1 • 1 ments. lormality is necessary at common law (as m the case of a grant of incorporeal hereditaments which must be by deed), it must be averred {d), unless the law has provided a technical term to express the sub- stance of the transaction, as in the case of a feoffment it has (e). Again, where a promise to pay a simple contract promise to - debt is relied on in bar of the statute of limitations, '^^"' ^ ' ' ! it may be stated generally, because it does not, by ' virtue of that statute, derive its power, but is only t thereby limited in its effect and subjected to formali- ties, a simple parol promise not in writing being suf- ficient before the statute 9 Geo. 4, c. 14(/). And now, recurring again to the exception to the Exception. "-^ ° , ^ Instances. general rule, above deduced, we shall instance some further departures from this branch of that rule based upon the principle of that exception. Thus, in stating a will made and published after wul the 1st of January, 1838, it is not necessary to allege that it was in writing signed by the testator and attested according to the statutes, but it is sufficient to say that testator " duly made" his wilK^r). For though the will derives its whole efficacy from the (c) Steph. Plead. 313. (d)Steph. Plead. 312, 313. (c) See post. {/) 3 y. & Jer. 522 ; 6 Bing. 26*. (g) Hyde v. Edwards, 12 Beav. 160. 62 FACTS MUST BE STATED, McepHm. statutes, there is only one way of makins: a will now Instances. •' •' i j >> for all sorts of property, and the words " duly made are a substantially certain averment of the facts of compliance with the statute, and can be fulfilled but in one definite way, and will therefore be intelligible without more. There was formerly a different mode of statement necessary as to a will of real estate, when such will must conform to the requisitions of the Statute of Wills (34 & 35 Hen. VIII. c. 5) and the 5th section of the Statute of Frauds, whilst wills of personalty were regulated by other statutes. Then it was requisite to set out the form, &c. of the will, or to say in general terms that it was " made in such manner as by law required for rendering valid devises of real estate" {h). And it was also necessary to state the publication of the will. Or it might be alleged that he " duly made and published his last will and testament (i) according to the provisions of the statutes in such case made and provided," if the will related to both realty and personalty ; and this general averment was substantially certain and intelli- gible without more. At law such general averment would seem to be insufficient (fe) : and thus we have an illustration of the grand rule that equity regards only the substance of the pleadings. It is proper to add that " publication" was never (A) Hatton V. Waddy, Hay. & J. 601. (i) The word " testament" was usually applied in law to a will of personalty, and the words " last will in writing" to a devise of realty ; hut either terms might be used for either sort of will, and therefore, though it is usual to employ both when speaking of a will of both sorts made before 1838, it is not necessary. See Co. Lit. Ilia. (.*:} 1 Wms. Saund. 278 a, n. (2). AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 63 required for a will of personalty (t), and is now no Exception. longer necessary for a devise of realty (1 Vict. c. 26, s. 13), and need in no way be averred. Other instances are found in the matters of probate Probate, ao. and letters of administration. Formerly [in the be- ginning of Lord Hardwicke's time] it was held neces- sary to mention the Court or Courts in which the probate or letters of administration were taken out, because their validity depended upon the doctrine of bona notabilia. Afterwards, however, a general allegation that probate, &c., had been " granted in the proper Ecclesiastical Court," or that the executor or administrator had " duly proved" the will, was allowed to be suflBcient, because it necessarily im- plied certain definite acts (m); and it certainly would sufiice now that the probate or administration must issue from her Majesty's Court of Probate alone (n). " And now we are in a position to deduce for general tm ' . ^1 Exception use the terms of the exception so frequently referred defined. to ; it is this, that " Where the facts involved in a con- clusion of law are reasonably certain, so that it can only be made out by one set of facts, it will be sufficient, so far as the Court is concerned, that such conclusion be stated without the facts, for it will be intelligible without more." The observations we have made on Walbum v. Ingilby and Carleton v. Leighton, and the instances we have given, will illustrate and ex- plain the exception and enable the reader to apply it. In many of its applications it affords examples of the (0 1 Wms. Ex., 4tli ed. 71. (m) Humphreys v. Ingleton, 1 P. W. 752 ; and Stone v. Baker, id. (D.) (n) 20 & 21 Vict. c. 77. law. 64 FACTS MUST BE STATED, Ttie way in which equity, regarding the substance, allows deflmd. departures from the technical rules of pleading at Theexoep- law. For, though the rules of pleading and the on the prto- terms of the statute require that the material facts of equity re- the plaintiflf's case, and not merely conclusions of substance in law, be Stated ; yet the Court will be content with a mere statement of such conclusion, if the material facts are thereby substantially averred with certainty. Theexcep- But in somc of its applications it is in fact the rule times auowed in Courts of law. Thus, in relation to those things (mentioned in the case of Walburn v. Ingilby) which are known to the law and can be supported by evi- dence in only one way, the exception seems to be embodied in the rules of law, which may be adopted Instances at in equity (o), viz., the rule that " Things should be "pleaded according to their legal intendment" {p), which seems to apply to those things which from fre- quent recurrence have acquired a legal expression, certain in its meaning and in what it includes ; and the rule stated by Lord Coke, "All necessary circum- stances implied by law need r),ot he expressed, as in the plea of a 'feoffment' of a manor, livery and attorn- ment are implied" (q). So, where it is pleaded that land was assigned for dower, it is not necessary to say it was by metes and bounds, for it shall be intended a lawful assignment, which is by metes and bounds (r). And so it may be pleaded that A. " enfeoffed" B. and livery will be implied (s), or to (o) See post, (p) Steph. Plead. 389. (q) 8 Co. Rep. 81 b; Steph. Plead. 353. (r) Co. Litt. 303 b. (s) Steph. Plead. 354 ; Harrison i>. Hogg, 2 Ves. jun. 328 ,• Cooper, Eq. Plead. 181. AND NOT MERELY CONCLUSIONS OF LAW OR EQUITY. 65 allege that " defendant by his certain writing revoked Conditions the authority" of the arbitrator without averring that -^—^ ' the latter had notice, because that was necessary to a revocation (<). This last case is indeed a clear y instance of a general allegation of law which neces-( sarily implies certain few and definite facts such as ; we have been speaking of. Further, in regard to those cases where it is neces- sary to a plaintifTs case to allege performance of conditions precedent, or that he has satisfied the stipulations of a contract, it will be observed, that the question, whether there has been a due perform- ance or satisfaction, will be a question of law upon the facts : and it may therefore be useful to refer to some of the general rules for pleading in reference to conditions precedent at common law. Now, in some of these cases, it would lead to great proHxity for the pleader to allege specifically and in detail that every condition or stipulation had been performed, and how, &c., e. g., a condition in a bond for another per- son to pay over all such sums as he should receive as postmaster, &c., where the specific allegations would be of each receipt and each payment; or, in other cases, where an account would be required. In other of such cases it would be impossible to allege per- formance specifically — e.g., a covenant that a lessee shall not assign, and various other negative stipula- tions. Whilst it generally lies within the power of the other side to point out any specific breaches, and it is far more convenient that he should do so. Ac-N cordingly at common law, in such cases, a general i- averment of performance is allowed, and the distinct^ (O Steph. Plead. 354. 66 FACTS MUST BE STATED, cmmtioM and definite issue is raised by the pleading of the Precedent, . t ■ ■ re . j opponent, whilst no surprise upon mm is etiected. But where certain specific things few in number must by any stipulation be done or have occurred to establish a party's case, they must at common law be specifically alleged, because no ground of con- venience reUeves him from stating his case with suf- ficient detail for the information of his opponent ; and in all cases where the facts lie peculiarly within his own knowledge, and it is possible to be specific, he will not be allowed to avoid stating the facts, upon which the conclusion of law is founded, upon the pleadings. [And where it turns out that a sur- prise has been effected, even a Court of law will allow a new trial.] j The rule that performance of conditions precedent Jmust be alleged in detail is followed, we have seen, J in equity («) ; but a qualification is allowed where [ the general allegation of performance would sub- l stantially be a certain averment of definite facts (x). And it is presumed that the Court of Chancery, which adopts the rules of common law pleading where they are consonant to its principles and prac- tice, would also allow the exceptions above pointed out in cases where great prolixity would otherwise arise, &c., being based as they are upon reasons which equity regarding the substance would seem to favour more than the common law. The case of a plea of a purchase for value without notice, where, unless the plaintiff has laid particular facts to («) Walburn ». Ingilby, 1 M. & K. 61 ; ante, p. 50. - W Id. AND NOT MEBELY CONCLUSIONS OF LAW OR EQUITY. 67 prove the notice, the general denial is sufficient (y), Averrmnt of seems to be within these exceptions — being the allega- "cS™ «/" *• i» i- /» ,'1 T • Law requires tion 01 a negative or many particulars. It remains to \ »o Answer. be added, that a party may sometimes state his case / in the negative, and so avoid averments of the several f particulars of performance, or in the affirmative so as \ to come under the general rule as to the allegation of performance in detail. Thus, if he states that the opponent has not been damnified, he need not enter into the evidence to show that he has not been damnified — indeed, it would often be impossible so to do. But if he states that he has indemnified his opponent, he is referring to certain distinct and few acts of his own, which he best knows, and which he ought to set out. In concluding our observations on this rule, it may hardly be necessary to state that it is so firmly based upon the principles of pleading (the primary object of which is to place the facts of the case before the Court so far as they are agreed upon, and to produce distinct issues upon the facts which are disputed), that a mere conclusion of law requires no answer at all — nothing is put in issue by it at all. It is true Mr. Wigram lays it down(2r), that a Authorities to , - . , . IT the contrary general charge does require an answer, and he seems examined. to think that it does so even if it be a charge of fraud or other conclusion of law. But, on referring to the authorities cited by him in support of the pro- position, it will, we think, be found not to be made out. The first are from Chitty on Pleading and Coke's Reports : now these authorities refer to cases of fraud when it is a case of collusion or intention, (y) Pennington t>. Beechey, 2 Sim. & Stu. 282 i ante, p. 25. (*) Wig. Disc. 133. 68 FACTS MUST BE STATED, Averment of and which is a matter of fact and not of law (a). elusion of Then come the cases of Watkyns »."Watkyns (6) and Law requires ^~, ^ -r*- / I'l iii c ' no Answer. Clark V. Penam (c), which were both charges or im- proper or indecent behaviour in a wife made by way of answer, and were charges of facts {d). The next case was Wheeler v. Trotter (e), in which there was a charge of breach of duty or fraud against plaintiff by way of answer, but the facts — of not accounting for several fees received in virtue of an oflB.ce and of taking several fees which were not due nor mentioned in the schedule — were mentioned in general terms (/). The next case is Attwood v. (^), in which, though there was a general charge of wilfully and negligently parting with some deeds, the real facts appeared upon the answer, and the Court held they were suflSciently on the record ; this only accords with the decision in Gordon v. Gordon, that though a general charge may of itself be insufficient, yet it may be made good by an answer making admissions of facts which support and supplement it Qi). Stroud V. Deacon (i), also referred to, was a general charge that under a settlement when produced it would ap- pear that defendant's wife, under whom he claimed, was only a tenant for life ; and though this was an allegation of a conclusion of law, the mention of the deed gave the facts upon which it was based — it was merely a statement of the legal eflFect of the deed — and it was on demurrer held to require an answer. The allegation in Buden v. Dore (ft), that (a) Ante, p. 34. (/) Ante, p. 40. (6) 2 Atk. 96. (g) 1 Russ. 353. (c) Id. 337. (fe) Ante, pp.45, 46. (d) Post, Chap. II. (i) 1 Ves. sen. 37. (e) 3 Sw. 174, n. (ft) 2 Ves. sen. 444. AND NOT MERELY CONCLUSIONS OF LAW OE EQUITY. 69 defendant had the deeds of plaintiff's title, which Averment o/ , T 1 . * . „ . ., a mere Con- was held to require an answer, was for similar rea- cimionat sons an allegation of fact as well as of law. So no Answer. Shaftesbury v. Arrowsmith (Z) is an authority that an allegation that there are deeds in the defendant's possession under which the plaintiff (who is shown to be heir in tail) is entitled as heir in tail, would entitle the plaintiff to an answer as to its truth (m). In Emerson v. Harland (n), the bill stated a title in plaintiff as heir ex parte materna, and that there were no heirs ex parte paterna, and alleged generally that the defendant by correspondence and otherwise had admitted the plaintiff's title ; and it was held that a plea that defendant was heir ex parte paterna was in- sufficient without an answer as to the admissions^- but the existence of such admissions was a question of fact which might have supported the general alle- gation. The last case cited is Whyman v. Legh (o), in which the bill contained a general charge of cer- tain moduses of certain amounts, and that the de- fendant (the impropriate rector) had books, &c. which would prove the moduses ; and it was held, on de- murrer, that some answer was necessary to the charge. Now the question of a modus is a question of fact, as to the existence of a prescriptive right, for a jury to determine. The same learned author further says, that even a charge that the defendant claims some interest in the subject matter requires some answer {p). (0 4 Ves. 66. (m) And see Wig. Disc. pi. 228, n. (n) 3 Sim. 490 ; S. C, 8 Bligh, 62. (o) 6 Price, 88. (P) Wig- Disc. 133, quoting Red. 188. 70 FACTS MUST BE STATED, Averment of But though it mav be a question of law whether a mere Con- i n \ • • .77 • ' • • elusion at the defendant is entitled to any interest, it is a mere Law requires , 1 i • i • no Answer, question of fact whether he claims such interest; and where such claim alone would be sufficient to make out the plaintiff's case so far as the defendant is concerned, without showing that the latter was actually interested, the allegation would be one of a material fact and would require some answer. Thus an allegation, that a defendant claimed to be interested in the premises under a certain settlement, would have been suflBcient to justify his being ma,de a party to a suit against the other persons claiming under it and to avoid a demurrer : though, as the bill contained only the simple allegation of the claim (without showing that it was under the settlement), it was held demurrable, because the defendant might have claimed by title paramount, and, therefore, not have been properly a party (^q). So an allegation that a person claimed to be an incumbrancer, might serve to show he was a proper party to a suit for fore- closure. So the statement that the defendant claimed to be heir-at-law, and had brought an action at law in that character and succeeded, was a ground for the suit for estabUshing a will by a devisee against him ; though it seems that, unless it had been stated that he had so acted so as to vex the plaintiflp, the allegation would not have been sufficient to avoid a demurrer (r). The allegation, however, of a mere (j) Plumbe II. Plumbe, 4 Y. & C. 350. (r) Boyse v. Rossborough, 1 Kay, 71 ; 3 De G., M. & G. 817; 6 H. of li. Ca. 1 i and see Plummer v. May, 1 Ves. 426. A plea and answer in support, merely denying the claim or pretence, would be suf- ficient defence to a discovery founded on the claim, &c. AND NOT MERELY CONCLUSIONS OP LAW OK EQUITY. 71 claim, is no charge at all of the defendant's being Averment of entitled to the interest : it merely puts the claim in elusion of , . , - . , . , Law requires issue so that it may be determined in the cause, and »» Anmer. it will be for the defendant to charge his interest pro- perly, and state the facts, making out his case with certainty. Indeed, we shall see that, unless when and so far as it is material to show what title and in- terest the defendant has in the subject matter, the manner of stating that title and interest need in no case conform to the requirements of the rule we are considering (s). But, on the other hand, in most of the cases re- lative to charges of mere conclusions of law above given, demurrers were allowed, and it was considered that such charges showed no equity on the record, and therefore required no answer. Such charges are " wholly immaterial" if). As to a general charge of facts, we shall hereafter consider how far the position of Mr. Wigram is, in relation to them, sustainable (m). (*) Post, Chap. IV. {t) See Gilbert v. Lewis, 11 W. R. 223 ; Jackson v. North Wales Railway, 1 Hall & Twells, 80 ; Munday ». Knight, 3 Ha. 497 ; Evans v. Bicknell, 6 Ves. 174 ; and other cases above cited. (b) Post, Chap. IV. ( 72 ) CHAPTER II. Sufficient Facts not stated. ) FACTS MUST NOT BE STATED VAGUELY. It will frequently be found that any failing in respect of this rule will be prevented by the observance of the preceding rule; for, on examining a statement which appears vague and general, it will often appear that it really includes an allegation of a conclusion of law, and that, in order to avoid making such an allegation, the facts must be averred with sufficient precision and detail. A consideration of the illustra- tions of the foregoing rule will show this. Again, a statement may be held too vague merely because it does not in fact affirm anything which supports the case against the adversary ; as, for in- stance, if it in no way connects him with the plain- tiff's grievance ; and of course in such case there is no claim made out. It is scarcely correct, however, to term such statement "vague." It is clear and definite enough in its meaning, but its failing is that / it in no way states in general or particular terms, directly or inferentially, some fact material to the plaintiff's case, the rule being that, unless the bill states such a case, as, if proved, would necessarily entitle the plaintiff to relief, it will be demurrable (a). Thus, in Myddleton v. Lord Kenyon, where a deed was alleged to have been executed on a " misappre- (a) Kemp ». Pryor, 7 Ves. 237. / FACTS MUST NOT BE STATED VAGUELY. 73 herision and misrepresentation of the plaintiff's real sufficient situation," Lord Eldon said, " Standing as it does in *"«<«'2- this bill, misrepresentation connected with misappre- hension and applied to no one person, the allegation is totally vague and calls for no answer" (6). To have made out the case against the defendant, it should have been averred that he was party to the misrepresentation. So, where a bill was filed against a sohcitor who had acted for the wife of the plaintiff, charging him with having prepared a deed by which the wife's property was, a day or two before the marriage, settled upon trusts in fraud of the plaintiff's marital rights, and stating that the defendant knew that the marriage was on the point of being celebrated, and that the defendant was a trustee of the settle- ment, and he " has or had control " over the funds, and had applied them to the purposes of the settle- ment, and it prayed, that the settlement should be set aside and the funds paid to the plaintiff, and for dis- covery ; it was held that the defendant was not pro- perly stated to have been cognizant of the fraud and party to it, for that " when a party is brought here to answer a fraud, it ought to be distinctly alleged in the bill, that he may know exactly what fraud he has to answer," nor was it stated that defendant had at the time of the marriage any control over the funds : and a demurrer was allowed for vagueness (c). And again, where the bill alleged that a will, under which the plaintiff claimed, had been by " fraudulent (6) 2 Ves.jun. 402. (c) Kelly t). Rogers, 1 Jur., N. S. 514; and see Smith v. Kay, 7 H. of L. Ca. 763, as to showing distinctly what the fraud is, so that defendant may answer j and ante, pp. 41 — 44, post, pp. 77, 78. L. E 74 FACTS MUST NOT BE STATED VAGUELY. Sufficient Fa^ts not stated. collusion between the defendants colluding and con- federating with various other persons '' to the plain- tiff then unknown " hitherto secreted," and that the income of the property had been fraudulently ap- propriated by the defendants, the V.-C. Kindersley, in allowing a demurrer for vagueness, said, that it did not appear whether any application had ever been made for the will, nor when and how long and from whom it had been concealed, the charges of fraud "must not be mere general charges but charges of specific acts of fraud" {d). As it was not shown that the will was concealed from the plaintiff, and that his claim was not barred by time, &c., there were not facts sufficient to establish his equity. Where the bill was by a creditor against the trustee of a creditor's deed, and one who had purchased part of the property at an undervalue by bribing the agent of the trustee, and alleged that, after the trustee had discovered the fraud, he "refused and still re- fuses " to sue to set the transaction aside, it was held that the charges were insufficient to sustain the bill ; though it seems the bill would have sufficed, if it had been stated that the trustee had been required hy the plaintiff to sue and refused. A demurrer was allowed for vagueness (e). And so, where there was a state- ment of a devise " to A. B. and his children or some of them," and that the plaintiffs claimed under the will as children of A. B., but did not state that they were all the children of A. B., the Vice-Chancellor said that the allegations might be satisfied if there were other children of A. B., and that the devise was (rf ) Bottomley v. Squires, 1 Jur., N. S. 694. {e) Jerdein v. Bright, 2 J. & Hem. 333; and see ante, p. 36. FACTS MUST NOT BE STATED VAGUELY. 75 in fact to them and not to the plaintiffs (/). And sufficient where an information was filed alleging that the de- ^"tllT fendants (a corporation) " did wrongfully intend " to jj^eaX^f make certain payments out of the city fund, and *""'• upon the facts stated it appeared that the payments might possibly be proper, it was insufficient to charge the defendants with a breach of trust ; because it did not necessarily follow from the facts that the pay- ment was improper, and the other view of the case might be taken against the pleader {g). As another instance of this sort of vagueness, a Accounts. bill suggested in general terms " that, in the year 1813, the plaintiffs had frequently been employed as agents to the defendants who resided abroad, and that mutual accounts subsisted between them; and in particular that at a period (stated in the bill) the defendant remitted the specie in question" and prayed an account of the transactions. A demurrer was allowed, the Court saying " The point comes to this, that if I am of opinion that the particular trans- action would not entitle the party to relief, I must, to support the bill, be of ovinion that the general charges do so entitle him. Now, without meaning to lay down any general rule, I think the facts charged in the present bill are too loose and vague to support it ; not even stating there are unsettled accounts, or that a balance is due to either party ; and if these particular charges were struck out, it would not appear that any other transaction than the present had ever taken place between the parties. It is not every account which will entitle a Court of Equity (/) Bottomley v. Squires, 3 Drew. 521 ; 2 Jur., N. S. 153. ig) Att.-Gen. v. Mayor of Norwich, 2 M. & C. 406. 76 FACTS MrST NOT BE STATED VAGUELY. Sufficient Facts not stated. rrictas !). Dos Santos exa- mined. General charge not limited by particular charges. to interfere, it must be such an account as cannot possibly be taken justly and fairly in a Court of Law"(/^). This case is often quoted to show that a general charge will be interpreted and confined according to the particulars stated; but it is submitted that the inclination of the Court seems to have been directly to the contrary, and that the only rule actually laid down by it is, that where neither the general charge nor the particulars necessarily aflBrm the facts material to the plaintiff's case for relief, the pleading will be too loose and vague. And accordingly in a later case (i) where, besides the statements of some parti- cular transactions, the bill alleged certain other mutual dealings and transactions between merchants in a general way, but indicating the nature of the dealings, and that the monies and goods so remitted and paid, on each side, amounted to a very large and a con- siderable sum in the whole, and a considerable ba- lance was due by defendant to plaintiff on the foot of the said account, and that by the means aforesaid an account had arisen and was still open and unsettled between the parties, and that the said accounts, more especially having regard to the particulars mentioned, were of a voluminous nature and consisted of several hundreds of items on both sides of the account, in- cluding a daily interest account, and such account could not properly or justly be taken except in a Court of Equity, and the bill prayed an account : it was held, on the general allegations, that the bill was not demurrable, the particular charges not being in- imufficient various particulars must often be set out. Thus, we Particulars. ^ *"t3, t* v^ (*) Post, Chap. IV. FACTS MUST NOT BE STATED VAGUELY. 87 have already seen that in many cases time must be yagueness •' , . ■' arising fi'mn laid with sufficient precision to show the title to sue, insufficient ^ ' Particulars^ but that SO long as that is done substantially the Court will often be satisfied. The same observation applies also to other things, such as place, quality and quantity, and other elements of description, when they materially affect the relief. Place, however, as a "venue" need not be laid in equity (Z), and unless the place be material to the validity or construction of a " contract, &c., or to the " res gestae, " it need not be considered, and if not mentioned will be presumed to be in England. However, if a contract concern such a thing as land, it is often important to the decree, that the place, nature and quantity of the land should be accurately before the Court, for upon them may turn the terms and equity of the decree. This would be the case, for instance, in a bill for a specific per- formance of a contract for the sale of land. And if a decree is sought in rem concerning lands, their locality within the jurisdiction of the Court in Eng- land should be shown. So, in order to show the right claimed in relation to a chattel, it must generally be described properly. There is no objection, however, to the use of such expressions as " on or about the month of July, 18 — ;" for such terms would be taken to mean " in that year," and would be sufficiently precise, so long as any of the months in that year supported the plaintiff's case. Thus, where it was alleged that a person died " on or about the 2nd of July, 1806," the allegation was held sufficient, because it was well understood that it meant in the year 1806, and that (I) Mytton V. Harris, Wightw. 111. 88 FACTS MUST NOT BE STATED VAGUELY. „^"?««"f« would have saved the claim under the Statute of arisiTig from ^wSS Limitations, and made good the pleader's case (/). Greater precision is sometimes necessary to the case, and even the exact time may have to be stated- Thus, where a settlement was stated to have been made in September, 1794, and an indemnity as given "in the year 1794," it was held that the settlement might be taken, against the pleader, to be sub- sequent to the indemnity, and so, on demurrer, the bill failed (m). Indefinite- The particulars of a case are also necessary to be ness in case ^ . , . for Relief, averred, so far as to avoid another fault, in pleadmg, usually classed under the head of vagueness, viz., indefiniteness in the case made. A bill is sometimes said to be vague when, though it conclusively show that there is some equity to relief, the facts do not define with sufficient precision what the equity and relief are. This may arise from want of particularity, or vagueness, in the allegations, or in the whole case, in the same way as uncertainty as to the existence of the equity. Thus, where a suit was brought by two depositors in a savings bank against the trustees and the representatives of the late treasurer thereof, and, in order to give the Court jurisdiction over the matter, charged collusion between the trustees " or some of them" and the late treasurer, the allegation was considered too vague, because the only ground (if any) of the suit against any one of the trustees of such an institution could (in view of the statutes re- lating to savings banks) be the fact of his actual par- (J) Leigh 1). Leigh, Dan. Ch. Pr. 351. (m) Vernon ». Vernon, 2 M. & Cr. 145 ; and see Baker ii. Welton, 9 Jur. 98. FACTS MUST NOT BE STATED VAGUELY. 89 ticipation in the fraud, and the charge did not bring indefiMfe- It home to any one m particular. " Supposing the /<"■ i^euef. charge to be confessed, how could this Court decree?" Would all or some only be decreed to pay, when the Court could not say on the admission, whether all or which was party to the collusion (w.)? So, where the bill to perpetuate the testimony of witnesses as to a right of common charged that the " tenants, owners and occupiers of the said lands, &c., in right thereof or otherwise have and had from time, &c., common of pasture, &c.," the relief would have been indefinite and was refused (o). And where the bill claimed a discovery as to whe- ther certain goods were not, as alleged, really the goods of a foreigner, and put forward a right to cer- tain fees on that account, it was held too vague, because it did not state the parties by whom they were payable under the regulations, and, moreover, had only stated that the defendants or some of them were liable to the payment, so that it did not appear clearly against whom the action at law was to be brought, and from whom the discovery was sought (p). Some exceptions, hereafter given (5'), will help to illustrate this rule. We may again point out, that Courts of law Technical require, in order to avoid vagueness, that the rule against pleading only conclusions of law, should be broken through where there are precise technical terms to express the effect of a deed, &c. But (n) Cooke V. Lord Courtown, 6 Ir. Eq. Rep. 278. (0) Cresset ». Milton, 1 Ves. jun. 449 ; see post, p. 107. (/)) Mayor of London v. Levy, 8 Ves. 401. (}) Post, p. 94 et seq. 90 FACTS MUST NOT BE STATED VAGUELY. ^reJ^"' Courts of Equity, on the other hand, allow the very words of the deed, &c., to be set out, instead of the technical expression, though the result may be some degree of vagueness. But there is here a difference of principle between the Courts. The one judges only according to the legal effect and intendment, for which it has by constant use a precise technical expression; but the latter judges according to the whole facts of the case, and the legal effect and intendment may not disclose the real equity of the case. However, in Courts of law, the words of the -instrument must be given where there is no technical expression to suit their effect ; and in equity, where the plaintiff relying on a legal claim only comes for some equitable mode of relief, the technical expres- sion may conveniently be adopted. cfAdmissil>ns ^ plaintiff may sometimes attempt to make up for TagumeM. ^^ deficiencies of his statements as to his title or rights, by alleging admissions on the part of the de- fendant ; but such allegations will be of no use, un- less the admissions relate to facts. Thus (r), where the allegation was, that " defendant admits the plain- tiff is entitled at law," the Master of the Rolls said the admission " amounts to nothing ;" it is " either an admission of the legal inference to be drawn from the facts stated and thus amounts to nothing, or it is an admission that, whatever be the right of the de- fendant, she has waived it in favour of the infant, without stating how or by what means [that is, the facts supporting the legal conclusion that] she has waived her right " (s). And, moreover, the allega- (r) Crowther v. Crowther, 23 Beav. 309. (<) But see post, Chap. IV, FACTS MUST NOT BE STATED VAGUELY. 91 tions of the admissions themselves must clearly show Aiiegatmis what was admitted, and not be vaguely worded, tocwetke mi n . 1 D ./ Vagueness. Ihus, an allegation " that the defendants have had various conversations with each other and with other persons, in which they have admitted the matters hereinbefore stated," would, it was said, have been strong if it stood alone ; but then the bill went on to say " or some of them, or referred to such matters or some of them as true," and the allegation was held insufficient, because it did not show that anything material to the right of suit was admitted (t). One exception to the Rule against vagueness was in one case allowed, where the whole frame of the bill, fairly interpreted, required the proper reading to be put upon a doubtful allegation. Thus where, in a bill for an account of tithes, in which the vicar and his lessee were plaintiffs, the allegation that the vicar " de- mised" the tithes to the co-plaintiff " for a term of years commencing at Michaelmas, 1832, and then unexpired," was inserted for the purpose of showing that the vicar was a proper party, and where he would not have been a proper party if the demise was by deed but only if by parol, it was held that the word " demised " might be taken to refer to- a demise by parol, notwithstanding the rule as to taking pleadings most strongly against the pleader. That construction was "the most natural, and at all events the most reasonable, because it will give effect to the whole bill taken together, whilst the contrary construction would render the bill altogether erroneous " (m). This case, however, does not (on the reasoning) (<) Hammond v. Messenger, 9 Sim. 336. (b) Foot ». Besant, 3 Y. & C, Ex. 320. Court will look to the whole Bill. 92 FACTS MUST NOT BE STATED VAGUELY. Court will seem easily reconcilable with the other cases as to look to the •^ ■ , « w hole Bi ll, yagueness. But if we remember that a demise of any incorporeal hereditament not appurtenant to a corporeal hereditament, must at common law be by deed, and a demise by parol would only be an equitable contract; it would appear that, if the plaintiff had intended to state a legal demise, it would have been requisite for him to state that it was by deed (x), and so the most natural construction of the simple word "demised" was that adopted by the Court. This reason*may have been in the mind of - the Court when it used the term " natural," though it was not fully expressed. And the case would then be reconcilable with the decisions, that a doubt- ful expression shall be taken against the pleader, even though that course defeat the bill. It may, however, perhaps be assumed from the above case, that the Court will not take an allega- tion by itself and condemn it as too vague, but will look into the whole bill to see if, taken altogether, there is sufficient certainty, and the case of Hunter v. Daniel, before quoted (y), will support the same con- clusion. Facts within] Another exception to the Rule is in relation to *'^/«A«^^ facts more within the knowledge of the defendant, ^^-^ ■ which may, on that account, be stated with less pre- case. cision. Thus, in stating a defendant's title, it may be alleged that the defendant " is seised in fee or otherwise well entitled " (z). And so where, in a redemption suit, the mortgage was stated with such («) Ante, p. 61. (y) 4 Ha. 429; ante, p. 81. («) Baring v. Nash, 1 V. & B. 551. FACTS MUST NOT BE STATED VAGUELY. 93 uncertainty as to leave it doubtful whether any legal facts within estate had passed to the defendant, a demurrer was '"ofnt'" overruled, the plaintiff having by the suit admitted ""^^^ the title of the defendant to be good (a). And so in a bill to obtain a reconveyance of an estate, which had been sold subject to a right of repurchase on payment within a certain time of a certain sum, sub- ject to reduction by the amount received by the transferee in the meantime by the sale of any portion, and where it was alleged that the accounts as to such sales had not been rendered in time to enable the plaintiff to repurchase, according to the agree-„ ment, before the time expired, and the solicitor of the defendant was also made a defendant on the ground that " under and by virtue of divers agree- ments, deeds, &c., and some verbal agreement with the other defendant, the particulars of which are wholly unknown to the plaintiff, the said defendant claims to be and is interested in the said messuages, &c., and he alleges that he is and is a necessary party to this suit," a demurrer by that defendant for vague- ness and generahty was overruled (b). Perhaps, however, it may be considered that the al>ove hardly was a case of vagueness, but was one of generality only. The exception, moreover, extends in some measure piaintifl's to the statement of the plaintiff's case. Though, as one reason for a considerable indulgence in stating a defendant's case is, not only that a defendant cannot be inconvenienced in pleading by the indulgence, but that it is the proper duty of the defendant himself to (a) Roberts v. Clayton, 3 Anst 716. (6) Ponsford v. Hankey, 9 W. R. 510. 94 PACTS MUST NOT BE STATED VAGUELY. F(KU within state his own case exactly, and as this reason does knowledge in . « , t • -n^j ^.^ of the not apply to the allegations of the plamtitt s case, the Defendant. I r J o -n -ii i. latter must be more strictly set forth. But still the facts of that case often (especially in equity) lie almost entirely within the defendant's knowledge, and, to insist upon exact allegations of them, would be to deny relief entirely ; and, consequently, the discovery which equity will cause a defendant to give, is one of the grounds of its jurisdiction in many cases. If, however, some amount of certainty and precision were not required, a defendant would not be able to defend himself from a liability to give discovery, ac- count, &c. upon a perfectly groundless case or as to matters which could in no way affect the plaintiff's real claim; and thus a most unfair inquiry into the private affairs of a defendant might result. It is, therefore, requisite that the plaintiff should so state ins case as to show that he has some hona fide claim, and should set out some reasonable limits, though he may not be able exactly to define it. The defendant can then demur or plead to that case, accordingly as it may be bad on the face of it, or can be disputed by a plea denying the facts or pleading matter in avoid- ance, and so can escape all discovery or all discovery not necessary to the trial of the plea (c) ; whilst, if he cannot by these means refuse all discovery, the limits within which it will be confined will be determined by the definiteness of the case made (rf). In fact, unless the plaintiff shows clearly and neces- sarily or conclusively from his allegations that he (c) Wig. 43; -Armitage ». Wadsworth, 1 Mad. 189; Red. 218, 230, n. g. (rf) Wig. 123, 157. FACTS MUST NOT BE STATED VAGUELY. 95 Defendant, has some claim and an equity to a discovery, &C-'' Facts wuhm count, &c., his case will fail entirely to make out any I ^«J' ground for the relief and the incidental discovery, I &c. (e). And, unless he shows with convenient cer- tainty what that case is and its limits, the defendant will be hindered and embarrassed in taking issue upon it, and, moreover, the extent of the discovery, &c. will not be determined — the bill will be a fishing bill — and as " discovery is given in equity to assist a plaintiff in proving a known case, and not to assist him in a mere roving speculation, the object of which is to see whether he can fish out a case" (_/"), such bill will be held demurrable. In other words, though in such cases there must be no inconsistency, ambiguity or defect in the aver- ment of facts necessary to make out the equity, there may be some indulgence in the matter of generality or indefiniteness in setting out what the claim ex- actly is. Thus, in cases of trusts, the difficulty which a someinae- plaiiitm may have in setting out his rights and claims ™ case made with precision is often seen. In such cases, the deeds or transactions constituting the trust are very com- monly, in their particulars, only known to the trustees or first takers, and not to the other cestuis que trustent; and it would seem to be sufficient for the latter, when asking relief against the trustee, to state facts sufficient to prove that there is some trust, and that they are entitled under it, without accurately setting forth its particulars, and then the defendants (e) Wig. 132 ; post, p. 98 et seq. ; Jones v. Jones, 3 Mer. 161 ; Stansbury v. Arkwright, 6 Sim. 484. (/) Wig. 134; andseeRyvesf. Ryves, 3 Ves. 313; post, pp. 102, 103, 111. 96 FACTS MUST NOT BE STATED VAGUELY. Facts withm cannot object, by a demurrer for want of certainty, knowledge , . 0/'^ to giving a discovery of those particulars and an ac- count. Thus (_g), where a bill stated that A. had remitted certain sums to Ireland " for the benefit of the families or descendants of J. and B., and that such remittances were divided amongst such families or descendants per stirpes, grandchildren taking the place of and representing such of their parents (the children of J. and B.) as were dead ;" that divers large sums were afterwards received by C. " in trust for and for the benefit of the families or descendants in this kingdom of the said J. and B. equally &r\A per stirpes, grandchildren taking in manner aforesaid;" and that among the sums so received by C. were 50,000 roubles, 60,000 roubles, and 1,93K. 14s. 2d. ; that in the year 1817, A. delivered to C. the said sum of 50,000 roubles in trust for and for the benefit afore- said ; that C. accepted the said trusts, and wrote to persons in Ireland stating that he had received the two last-mentioned sums on the trusts and for the benefit aforesaid; that in the year 1818, A. delivered to C. the sum of 60,000 roubles in trust for and for the benefit of the said descendants of J. and B. and of M. in three equal shares per stirpes as aforesaid ; and that C. also received about the same time in trust and for the benefit of the families or .descend- ants of J. and B. per stirpes in manner and propor- tion aforesaid a sum of 1,931Z. 14s. 2d.; and the bill sought to recover a part of these trust funds on be- half of one of the children, and prayed an accoimt : it was held, that the trust sufficiently appeared, not- withstanding the inconsistencies in the allegations {g) Reed v. O'Brien, 7 Beav. 32. FACTS MUST NOT BE STATBD VAGUELY. 97 and the want of certainty and precision in the state- rmts wuMn ment of the trusts, and a demurrer on this account o/the was not allowed, but, on account of the apparently purposely loose and inconsistent way in which the facts were stated, the Master of the Rolls refused the plaintiff the costs on this point. And where the plaintiff claimed under a settlement by which estates were limited to the " next of kin of D. M. at the time of her decease without issue, of the name of B." as such next of kin (B. having been her maiden name), and alleged that the settlement was in the possession of the defendants and she could not with certainty set forth its contents, and that she was about to bring an action against the defendants for the recovery of the estates and could not do so without a discovery and production of the settlement; it was held, that the Court would not assume the deed to be exactly as stated, and the plain- tiff consequently to have no title at law, for that was the very thing to be ascertained by means of the dis- covery and tried at law; and it was considered that, under the circumstances, the deed was set forth with sufficient certainty (h). There was, indeed, a title to be tried at law, even under the deed, supposing it to be as stated. All that is required in bills of discovery in aid of actions at law, is such a case as will show a ground of action or defence fairly open to trial at law. If that be done, the Courts of equity will not withdraw the case from the Courts of law by pre- judging it and refusing discovery. They will not (A) Wright V. Plumptre, 3 Mad. 481. L. E / 98 FACTS MUST NOT BE STATED VAGUELY. ■'teowSf ^llow a plea in such a case raising the point of law (i). stfe^t "^^^ above case of Wright v. Plumptre may show, / however, that the fact that the circumstances are I peculiarly within the knowledge of the defendant \ should appear on the bill. But though, where the only reason for the vague- ness of the statements is that they are peculiarly within the knowledge of the defendant, convenient certainty will still be required ; it is otherwise where the plaintiff shows he has some case, and. alleges cir- cumstances of fraud or other misconduct of the de- fendant preventing the plaintiff from gaining accurate knowledge. must not' Though, then, indulgence is, as we have just seen, dwibt whe- granted to a plaintiff where the facts of his case lie has'any and^ more peculiarly within the knowledge of the defend- tiraiof*Kjui*i ^'^^J y^*' °^ ^^ other hand, if, even under such cir- /cumstances, the whole case as stated leaves it in ) doubt whether the plaintiff has any and what de- (^ scription of equity, the pleading will be insufficient. Thus, where the bill, filed by the assignees of a bankrupt, alleged that, previous to the bankruptcy, " certain dealings and transactions took place between the bankrupt and defendant," and that by virtue of "certain agreements for leases," the bankrupt was possessed of leasehold houses, which the bill speci- fied ; that in the course of such transactions the de- fendant from time to time made " certain loans" to the bankrupt, and the bankrupt, " as it was alleged by the defendant," made "some lease" or assignment of the property to the defendant of the leasehold pre- (i) Story, Eq. Jur. s. 1493, a ; Rumbold v. Forteatli, 2 Jur., N. S. 686. FACTS MUST NOT BE STATED VAGUELY. 99 mises, but that the plaintiffs were unable to discover, facts wmin, save as thereinafter mentioned, on what terms, and of the that the defendant had entered into the receipt of the rents ; that the plaintiffs were unable to discover with suflScient certainty the amount of the loans made, but the defendant pretended he had bought the premises under an agreement to grant the bankrupt an under- lease at such a rent as should pay the defendant 3 per cent, on the amount paid by him, but at other times the defendant disputed the agreement; that the amount received by the defendant for rent greatly exceeded 3 per cent. ; and the bill prayed a discovery, and that the rights of the plaintiffs might he ascertained and declared ; for an account of the deal- ings and for a declaration that any assignment of the premises might stand as a security for legal advances, and that the plaintiffs might be let in to redeem ; with an alternative prayer that if it should appear that the premises were demised to the defendant on the terms of his granting an underlease, then that such under- lease might be decreed : the Court allowed a de- murrer for vagueness and uncertainty(A). It needs no comment to show that the suit was a mere attempt to find out if the plaintiffs had any rights, and indeed the prayer seems very candidly to confess this. There i was no positive allegation, even in general terms, of I any existing right, and certainly no description of it.' In another case the bill was for an account of all sums received and disbursed by defendant on account of certain contracts mentioned in it. The bill charged that the defendant went out to India as a writer in (A) Wormald v. De Lisle, 3 Beav. 18. p2 100 PACTS MUST NOT BE STATED VAGUELY. of the Befendant. Must appear plaintiff has some and wliat sort of equity. ^mLS" ^^ service of the plaintiffs (the East India Company) ; and stated the usual covenants entered into by the servants of the company; that after remaining there some time he returned to England and afterwards went out again in another capacity; that he again returned, and being subsequently appointed resident at the company's factory at Moldah at a monthly salary, he entered into a combination with the board of trade at Fort William to defraud the company, by which he agreed that if the Board would permit him to enter into certain contracts he would let them have certain profits, and that in consequence he bought silk at a small price, and sold it to the company at a large price, and that defendant had covenanted to keep in all instances proper books of account, and that he would not charge the company more than he had paid upon their account. The bill was demurred to ; and the Court h'eld that, though a demurrer admits all things well pleaded, the case of fraud alleged against the defendant was not so pleaded : that the real charge involved in these pleadings was that defendant " undertook to act as factor [for the company], and that it was his duty to buy the silk for them in that manner and upon their account, and that by collusion with the company's local board of trade he dealt with them as a merchant and not as factor and took mercantile profits instead of factorage duty," but that these things were not clearly expressed. " But it is sadly pleaded by endeavouring to connect these general covenants with his appointment to the factory, and to connect that employment with that of buying the silk; and charging loosely, that he entered into a combination with the board of trade, and they Defendant, FACTS MUST NOT BE STATED VAGUELY. with him, is not the proper manner of pleading : the?Sv -P5'|2P^*i' &■ is no good sense in it ; it is very vexatious and surd." " Allow the demurrer, let them file another hill in three lines to hit the point " (Z). And so where the bill stated, that the plaintiff was heir at law and heir of the body of his father and heir at law and customary heir of his mother; and that, at the time of the marriage of his father and mother, his mother was seised and possessed of or entitled to divers estates " as one of the coheiresses of her father or under his marriage settlement or his will or codicil or by some such or other means," and upon the marriage of his father and mother, or be- fore, or at some time after the marriage, some settle- ment or settlements where executed, whereby all or some of the said estates and divers other estates be- longing to them or one of them were conveyed upon certain trusts [mentioned in the alternative] " or in some manner so as that plaintiff" upon certain events or certain other events [mentioned in bill] " became seised of or entitled to all or most of the estates comprised in such settlements either in fee or abso- lutely or as tenant for life or in tail in possession, or ' in some other manner," and stated that the defend- ants had taken possession of all the estates comprised in the settlements or which belonged to the mother, and particularly a certain estate in Lincolnshire called Barnardiston, or some other name ; and contained a pretence that the plaintiff had concurred in some ex- changes of some of the estates in Lincolnshire for one in Dorset belonging to the father; and a charge (I ) East Tndia Company v. Henchman, 1 Yes. jun. 287. 102 FACTS MUST NOT BE STATED VAGUELY. Must appear plaintifl has some and what sort of equity. Facts within that he had not done so, or that.if he had, he had been knowledge ^ . of the prevailed upon by misrepresentation as to the values of the said estates which were mentioned, and that plaintiff had not concurred in any sale of the Dorset- shire estate, or if he did, such circumstance ought not to establish the pretended exchange, having been effected by fraud ; and a pretence that the mother had power to make a will and devised to her hus- band ; and a charge that such will (if any) was in- valid and never proved and in the custody of the de- fendants, who ought to produce it as evidence, and that no good exchange had ever been made of the said Bamardiston estate or the said estate in Lincolnshire; and a pretence that the defendants threaten to set up some outstanding terms, so that the plaintiff was un- able to proceed with safety at law; but contained no allegation that the plaintiff was intending to bring or had commenced any action at law, or that there were such terms ; and it prayed a discovery and delivery of title deeds and possession of the estates, and an account : the Court allowed a demurrer, and gave the plaintiffs leave to amend. " This is one of those vexatious fishing bills, which have always received the disapprobation of the Court. It is so vague and uncertain, that the defendants cannot plead to it, and must discover all deeds relating to all their estates. Applicable to everything, it applies in certain to nothing. The bill ought to state what the property is to which it applies, and from what is said of the exchange it appears the plaintiff could do so. There must be what Lord Hardwicke called convenient cer- tainty. The plaintiff is clearly not entitled to the relief he prays : and in that case a demurrer lies to FACTS MUST NOT BE STATED VAGUELY. 103 the whole bill. ... It is very important to a defendant, ^Mts mtun ./I f knowledge whether the bill is framed in the shape in which the "f*^ *^ D^endant. plaintiiF is entitled or not, in respect of the de- fendant's right to know what he is or is not to answer. A bill of discovery must state some purpose to which the discovery sought must be applicable. ... It was said that relief might be given if the answer admits possession of such estates and receipt of the rents and profits ; and the plaintiff could not state it with more particularity. The rule cannot apply to a case where the whole ground of the bill is discovery, and a prayer of relief is added in six lines by which the defendant cannot [qu. must not] be hurt" {m). These observations seem based on the rule that, q. whether where the plaintifF asks relief as well as discovery, ness in wiis -n 1 n 1 1 fordiscovery the discovery will be coniined to the matter necessary inaidofiegai rights. or consequential to the relief (n); and if, therefore, the bill fails for uncertainty as to the relief, it will fail entirely as to the discovery. And it seems also im- plied in the above case, that greater precision is necessary in a bill of mere discovery, than in one which prays relief also ; and that, in the latter case, the plaintifF may show as a reason for the generality and indefiniteness that the facts are within the knowledge of the defendant alone, and that he cannot, therefore, set them forth with certainty. In the above case the pleadings were vague, but on the face of them it ap- peared that the pleader could have stated the case with more particularity and precision, so far as the (m) Ryves v. Ryves, 3 Ves. 342. (m) Story, Eq. Plead, s. 312. At any rate if the case is so stated as to show the discovery is sought as incidental to the relief. Red. 184 (m). 104 FACTS MUST NOT BE STATED VAGUELY. Facts witun relief was concerned, and no further purpose was knowledge . , . o/«e shown for which the discovery was necessary (o). The case amounts to this ; that a plaintiff will be bills" jordis- allowed greater latitude in stating his case in a bill covery only. ^^^ relief than in a bill for discovery merely, if there is good reason for the want of precision ; that such reason is not shown where it appears, on the face of the bill, that he could have stated it with more pre- cision; and that he cannot claim this latitude, simply by adding to a bill of discovery a prayer for relief, which there is no jurisdiction to entertain, because it appears that, at any rate as to part of it, he was in a position to obtain it at law, without any assistance other than discovery from equity. But this supposed rule, that greater precision is { required in a statement of a case where only a dis- ; covery is sought, than where relief is also asked, should y perhaps be only taken to mean (when considered in connection with the above case in which it seems to be laid down or admitted) that where a plaintiff shows himself entitled to some equitable relief, he will be entitled to greater indulgence than where he makes out a claim to some legal relief, — whether or not he actually prays any relief at all. . It may not at first view seem clear why greater strictness should be apphed to the one case than to the other, where the only difference lies in the accident of the plaintiff having a legal right or equitable right to be enforced, and that right, whatever it is, must be brought before the Court of equity, that it may judge whether there is any and what claim for its assist- (o) See Red. IS*, and notes (m) and (n). FACTS MUST NOT BE STATED VAGUELY. 105 ance. In a case of discovery, for instance, the plain- -f"™" «?'" , '^ ^ knowledge tiff may have a certain amount of knowledge as to ■r.°/'i" , •^ ^ Defendant. his rights, and he may have the same need of assist- ance, and, therefore, the same equitable claim for assistance, in order to learn their exact nature and amount, and to obtain the means of establishing and enforcing them, whether they be legal or equitable ; and it would, consequently, seem that he ought in fairness to receive the same measui'e from a Court of equity. Otherwise, it would depend upon the acci- dent of his claims being legal or equitable, whether he obtain redress or not. And as to the defendant; he can demur or plead to the case equally, whether it be legal or equitable, and so avoid the discovery if he has any defence to offer in that way(p); and it would appear equally necessary that the case should be stated with such certainty as to enable him to avail himself of such defence and avoid the expo- sure of his deeds, title, &c., whatever the case be. It must be observed, that the above case, when' strictly read, only seems to lay it down that an equit- \ able case need not be stated with the same definite- } ness as a legal case for which discovery is sought. \ There was probably no reference intended to the i avoidance of ambiguity and uncertainty in showitig \ that the plaintiff has some case. And then it would ,' be understood, that a plaintiff relying on a legal right must state it with legal technicality and preci- sion, in order that the defendant may have an oppor- tunity of pleading any legal defence to it which he may have, and so avoid giving any more discovery (y) Wig. 43. f5 FACTS MUST NOT BE STATED VAGUELY. fmu within than is necessary to try the truth of the defence (q) ; knowledge , j j ^ ■« of the whilst a plaintiff relying on an equitable case may, Defendant. SO long as he shows some equitable right, state it with less precision where the facts are more pecu- liarly within the knowledge of the defendant, because the exact equity of the case depends upon the exact particulars the object of the discovery which such bill requires, and will seldom admit of technical pre- cision. Certainly we have seen that the rule cannot apply to ambiguity and uncertainty as to the exist- ence of a claim, even where that claim is equitable ; for we have had many instances in which equity will not tolerate such faults, though the case be one en- tirely for equitable relief and it lie within the know- ledge of the defendant; and, as has been said (r), where a particular allegation is of " uncertain meaning, it is obvious that no discovery can be exacted, for there is in truth no question to which it can be applied," and the same observation would be pertinent where the whole case was uncertain of meaning. But the supposed rule as to pleading legal rights in cases of bills for discovery, if it existed, would seem based upon principles applicable with greater force to suits in aid of legal rights where no discovery as to the existence, nature and extent of those rights is needed or sought, and it has accordingly been said to apply to both kinds of suits (s). Let us, there- fore, examine some of the cases relating to both kinds of suits, to see what support they give to the rule. And first, as to suits in aid of legal rights, where (?) Wig. 43. (r) Wig. 132. (s) Whitw. 377. FACTS MUST NOT BE STATED VAGUELY. 107 no discovery as to the existence, nature and extent of P same Relief, inconsistent or alternative or additional reliei was sought, may perhaps rather be considered as cases where the same relief was sought on inconsistent, alternative or additional grounds of relief; and would show that the plaintiff may rely on several grounds for the same relief. This, moreover, was expressly held in one case, where it was said, that if plaintiffs have a title in one or other way, they may state it in both ways, thus — "plaintiffs claim either as heirs of the devisee or of the testator, supposing the devise not good "(a;). The same cases would also lay down the rules, as to the distinctness with which the several grounds for the same relief should be stated. From them, it would seem, that when the several grounds are based upon the same facts, it would be necessary expressly to charge them each separately ; other- wise, the aspect of the whole case would point only to the one charged, and would mislead the Court and defendant into supposing that the facts were stated in support of such one ground only. Thus {x) Ford V. Peering, 1 Ves. jun. 72 ; and see Cholmondeley v. Clinton, Rus. & M. 112, 116. AND BELIEF ON WHICH HE RELIES. 181 (as we have seen), where facts showins; fraud were Different , ^ grounds for stated as elements of another equity, the fraud could ™ me ReU e/. not be relied on. But where different facts are alleged, upon part of which one ground of rehef is based, and upon another part of which another equity to the same relief is raised, it may not be requisite to raise that latter equity so expressly on the pleadings ; as the facts supporting it, not being stated in reference to the other ground of relief, may possibly of themselves challenge attention to this ground, if properly arranged. The whole aspect of the case may not lead the Court and defendant to suppose that only one equity is to be relied on. And the same observations would apply to such ,a case, as to the case of a suit where additional relief is sought at the bar, on facts not stated as part of the case for the relief specially prayed. It would be safer, however, in all cases, to show \ Prudent to the grounds of relief distinctly on the face of the \ofaeiief 1 ■ 1 p \distinctly, bill, and where there are several grounds, either for the same or different relief, to separate between them. But it is not necessary to use technical ex- i pressions, so long as the meaning is plain. Thus,' it is not requisite to use the word "fraud" to ex- press that charge. Still, some of the rules as to ormndso/ vagueness apply to the charges or statements of the not be stated grounds of relief, as well as to the allegations of fact; and such charges or statements will be read most strongly against the pleader, so that if they do not necessarily mean that which would entitle the plaintiff to rehef, they will fail to support his case. Thus, where the bill stated the limitations of a settlement, so as to make it appear that the plaintiff 182 PLAINTIFF MUST INDICATE CLEAELY THE POINTS ^groSsof ^^® tenant in tail under it, and in a subsequent place ^f!^ spoke of the plaintiff's father as tenant in tail, and of himself as issue in tail : it was held, that the defendant was at liberty to adopt (on demurrer) the latter view, and that the plaintiff therefore had no title (y). And in another case, the bill stated a will made in execution of a power requiring the instru- ment of appointment to be signed and executed as a deed, but it did not state whether there was such ' signature and execution. It then insisted that the will " was a good execution of the power at law, and if not in equity ;'' and prayed that the defect, if any, might be remedied. Here a clear case was not made to entitle the parties to relief, because such relief might not be had if there was a valid legal title; and that construction was the one to which the pleading was open, and which the defendant might take {z). So an allegation that a lessor was " seised, or otherwise entitled to him and his heirs for an estate of inheritance, of or to the messuages, &c.," was held might be taken to mean, as against the plaintiff, only an equitable title; and to be therefore insuffi- cient to sustain a discovery in aid of an action at law, founded upon the covenants in the lease which run with the legal estate only (a). And so, on the other hand, an allegation that the plaintiff became " well entitled " to certain leasehold premises was, in an earlier case(&), taken against the pleader to mean legally entitled. (y) Vernon v. Vernon, 2 M. & Cr. 171. («) Edwards v. Edwards, Jac. 335. (a) Balls V. Musgrave, 3 Beav. 284. (i) Hagley v. West, 3 L. J., Ch. 63. AND RELIEF ON WHICH HE RELIES. 183 This vagueness of a charge based upon facts, yan'ienem •« nevertheless difters from the like vagueness in a ^g''V- statement of facts, in that the materials for drawing the conclusion of law are placed before the defendant and he is not embarrassed in his defence, but can judge for himself which interpretation of the charge is supported by the facts alleged. This may be the reason that when the charges or grounds, though ambiguously stated, will, however taken, entitle the plaintiff to a decree, the pleading will be good not- withstanding the vagueness. Thus, an averment that the plaintiff " is devisee in remainder in fee simple of the said premises under the said will, and he there- upon became and now is indefeasibly entitled to an estate in fee simple in possession thereof," was held sufficient in a bill to restrain the setting up of out- standing terms, although the title of the devisor was doubtfully stated; for only an equitable title was necessary to support the bill (c). And so where the bill stated an instrument, and that one or other of two co-plaintiffs was entitled under it — one as devi- see and the other as heir at law, each thereby con- tending that it was in himself; it did, not show a good right to bring the defendant before the' Court because he might have different defences to make to the case of each plaintiff, and might not be able to avail himself of both in any mode of pleading. But if the bill had gone on to state an agreement entered into between the two plaintiffs, and that under it both had acquired an equitable title, it would have been unobjectionable (d) ; though there would have been vagueness in the grounds of relief, as it was (c) Houghton T, Reynolds, 2 Hare, 264. (d) Cholmondeley v. Clinton, Rus. & M. 112, 116. 184 PLAINTIFF MUST INDICATE THE POINTS ^''Sm^- i^ncertain whether the plaintiffs relied upon both or '''"rmV^ either and which grounds of relief, depending upon the construction of the instrument. The equities or conclusions of law upon which the relief is prayed by the bill or asked at the bar may then, we have seen, appear in the charges of the bill or in the prayer. But, it should be observed, that the particular prayer will often of itself show the ground of relief Thus, a prayer that the de- fendant may be declared to have accepted the title, reveals the plaintiff's intention to rely on the con- clusion from the facts stated, that the defendant ought to be considered as having accepted the title. In other cases, however, the particular prayer may or may not disclose the grounds of relief. Thus, if the bill seeks to set aside a deed as fraudulent, the prayer might only be that " under the circumstances the deed may be set aside and delivered up to be cancelled," and the plaintiff's right to relief will then depend upon whether the conclusion as to fraud appears in the stating part of the bill; but if the prayer adds " as fraudulent and void," the statement of the circumstances alone in the bill will suflSce. In various other cases, also, the prayer itself will necessarily disclose the ground of relief, e.g., cases of wilful default by an executor, breach of trust by a trustee, &c. In such cases the prayer will run thus, " that an account may be taken of all sums of money, &c., come to the hands of the defendant, &c., or which but for his wilful default might have come, &c." Caution. Caution should nevertheless be had in relying on the prayer for disclosing the equities; not because it is insufficient to accomplish that object, but be- AND RELIEF ON WHICH HE RELIES. 186 cause there are many charges which at first sight caution as to ■•111111 n relying on might be thought to be charges of conclusions of Prayer to ^ show grounds law, but which are, really statements of fact. Instances o/Reiitf. of such charges are, allegations that a will was made under undue influence, or by insane or imbecile per- sons, or that a person was guilty of adultery, or had actual notice, or formally waived objections to title, &c. Now the defect of a bill which did not charge these things in clear terms in the stating part of the bill, would be that it was argumentative, because it left the main material facts of the case to be inferred, and not that there was no indication of the conclu- sions of law to be relied on. And this distinction should be carefully observed ; for it would be no remedy for the defects of such a bill, that the prayer contained a reference to the points. These charges are material facts, and must therefore be placed in the stating part of the bill, and distinctly put in issue. Hence we may see the safety of the course, usually adopted, of placing all the charges in the stating part, as well as embodying them in the prayer. ( 186 ) CHAPTER VI. WHAT FACTS MUST BE STATED. Descriptions The introduction should give the names, description of parties. i i i . . • and addresses of the plaintiffs; and the premises or stating part should do the same in respect of the de- fendants. These particulars help to "enable the Court, and the other parties in interest, to know where and to whom they may resort to compel obedience to any order or process of the Court; and especially to an order for the payment of costs, as well as to furnish distinct means of decision in all future controversies, in regard to the subject matter and the identity of the parties" (a). If the defendants or any of them are out of the jurisdiction of the Court, that should appear in the introduction; and the Court can then judge whether it can proceed in the absence of such parties, or must require service or substituted service of the bill and other processes of the Court. Plaintiff's The bill must then clearly show what decree the plaintiff is entitled to. That is, the plaintiff's equity must be apparent on the face of the bill. To treat this rule properly, would be to write treatises upon Equity Jurisprudence and Equity Pleading. To such works the reader is referred for full information as to what is necessary to be stated in particular cases ; but some general remarks on the subject may (a) Story Eq. PI. § 26, 27 ; Red. 42, 43 ; Cooper Eq. PI. 9 ; Barton's Suit in Eq. 26, 27, 30 n. ; Lord Coningsby's Case, 9 Mod. 95. equity must appear, "WHAT FACTS MUST BE STATED. 187 be useful, and the Appendix will furnish some illus- PiamHffs , . . equity must tratlOnS. appear. " An original bill, praying the decree of the Court touching rights claimed by the person exhibiting the bill, in opposition to rights claimed by the person against whom the bill is exhibited, must show the rights of the plaintiff or person exhibiting the bill; by whom and in what manner he is injured ; or in what he wants the assistance of the Court ; and that he is without remedy, except in a Court of Equity; or at least is properly relievable, or can be most eifectually relieved there" (J). The Court of Equity only entertains suits in re- tihc ana £. / \ -T ' IP 1 right to sue. spect or property (c). It is necessary, therefore, that the relative rights and duties of the plaintiff and defendant, in respect of the subject matter of suit, should be shown. In doing this, it has to be con- sidered whether the rights of the plaintiff are abso- lute, that is, against all the world ; or relative, that is, against the defendant only. If his rights are against all the world, the only \ way to state them is, by stating his interest in the sub- ! ject matter out of which they flow ; and it will depend / upon the cause of complaint how far the facts of his [ title must be set out. Where he complains of an ( injury to his interest, without pretence of title or interest on the part of the defendant (as, for instance, where the defendant is stated merely to have lately entered into possession), he may simply aver his interest without more facts (d). But when he wants (J) Red 37. (c) Emperor of Austria «. Day and Kossuth, 7 Jur.,N.S.483, 639; Clarke v. Freeman, 11 Beav. 112. (d) Ivy V. Kekewich, 2 Ves.juii. 679. WHAT FACTS MUST BE STATED. Title to sue. The wrong done or the rights claimed. Jurisdiction, Periormance of conditions precedent, &c. the assistance of the Court, because the defendant claims an adverse or conflicting interest, or bases his acts on such interest, the plaintiff must set out his interest and title, and also that of the defendant, sufficiently to show that his title is better than the defendant's. If his rights are against the defendant only — that is, if they spring out of some arrangement under which the interests of both arise ; or if the interests of both plaintiff and defendant are derived from some actual owner as a common source — the. interests of both must be traced back to such arrangement or common source. Having shown the rights and duties of the parties, or the arrangement or interest whence they flow, the infringement of the plaintiff's rights must be stated by setting forth the injury done by the defendant, directly or by the neglect of his duties ; or the neces- sity for interference to establish and adjust the claims of the parties must be placed before the Court. Then the jurisdiction of the Court of Equity to redress such injury, or to give the assistance, must be shown; not by any assertion or discussion of the law, but by the allegation of facts from which the jurisdiction may be inferred. The bill must also show that the plaintiff has duly performed any duties, on his part owing to the de- fendant, as conditions precedent to his rights against the defendant ; or express his willingness and readi- ness to comply with his reciprocal obligations. • Thus, in a bill to redeem a mortgage, it is neces- sary that the plaintiff should distinctly, somewhere in the bill, offer to repay what shall be found due on WHAT FACTS MUST BE STATED. 189 taking the accounts, or offer to redeem. And it has ofsertopay. been held, not to be sufficient to ask in the prayer that a reconveyance may be ordered, " on the plain- tiff's payi!5g what shall be found due." Though the Court will, if the defendant demur, allow the de- murrer at the hearing, but with liberty to the plain- tiff, to amend by adding a proper offer (d). And it must be manifest that the right to sue is vested in the plaintiff himself, and not in some one else (as, for instance, a trustee or executor) on his behalf. Finally, where the case requires it, facts must be '^''^^ ^^^^fj stated to negative any laches, acquiescence or undue s"*'™*- delay or other conduct on the part of the plaintiff, or statutory bar to his claim, which would otherwise appear or might fairly be inferred on the face of the bill to stand in the way of relief. Some of the latter facts may be important as costs. affecting the question of costs, even if they do not take away the plaintiff's right of suit. And with regard to the costs, there should also be stated every- thing which tends to show that the defendant has hindered or delayed the plaintiff in prosecuting his claim. One important ground of jurisdiction in equity is, Ground for 111 ^- 11 J- i. inquiries, as we have said, that the Court is able to direct proper accounts, &c. . . : to be laid. accounts and inquiries for ascertaining and settling the rights of the parties. Accordingly, if the plaintiff establishes his right to relief, the Court will, as a matter of course, direct such accounts and inquiries. What it will direct according to certain well-known relationships between the parties is in most cases (rf) Harding v. Pinkey, 10 Jur., N. S. 873. 190 WHAT FACTS MUST BE STATED; Ground for inquiries, ac- counts, &c. to be laid. Inquiry as to title in suit for specific performance. Accounts. Against , trustee ; executor, &c,, mort- gagee. settled, and may be fully learned by consulting " Seton on Decrees." But an inquiiy will not be directed unless ground for it is laid in the plead- ings (e). ' And therefore, if the draftsman wishes any other than the usual accounts and inquiries, or that the decree should settle any point without such in- vestigations, he must make a special case by his bill. Thus, under the ordinary contract for sale of lands, the purchaser is entitled to inquire into the vendor's title ; and therefore, a decree against a purchaser for a specific performance of such contract would direct such inquiry ; and consequently, if the plaintiff wishes an immediate declaration that the defendant should perform the contract, he must state facts to show and make it part of his case, that the defendant had accepted the title. And so, an account against a trustee is made on the footing of the trusteeship alone ; and the Court will not direct accounts against him inquiring into breaches of trusts unless a particular breach of trust is stated (/). And so, an executor, partner, mortgagee, &c. are liable to account, and the Court decrees accordingly. But if the accounts and inquiry sought imply im- proper conduct on the part of the defendant, the Court will not direct such accounts and inquiries without special facts justifying the direction; for otherwise it would be assuming such improper con- duct to have existed. Thus it will not direct an inquiry and account as to such monies as, but for his (c) HoUoway r. Millard, I Madd.414. (/) Ford V. Bryant, 9 Beav. 410; Att.-Gen. f. Mayor of Norwich, 1 Keen. 700. WHAT FACTS MUST BE STATED. 191 wilful default, might have come to the hands of the Accounts. trustee, executor, partner, or of the mortgagee (as a general rule), &c., unless a special case is stated showing some particular default, or that the defend- ant has acted wrongly— e.^., that an executor has traded with the assets— and unless one such default or wrongful act is proved. The full extent, however, of the wrong need not be shown {g). If it were required to be shown the inquiry would often be useless ; and, moreover, the fact that the person trusted has once abused his trust is a sufficient reason for the Court in distrusting him. Where the parties are strangers, we have seen that a remedy can only be had limited to the particular wrong shown {h). The relationship, however, between a mortgagee in Against ' . . mortgagee in possession and the mortgagor requires a stricter ac- possession. count ; or, in other words, the allegations showing the mortgagee to be in possession make out a special case for accounts and inquiries as to wilful defaults / without the averment of particular defaults. This is a protection to a mortgagor who is com- plexly in the power of the mortgagee, and without the means of knowing accurately the manner in which the latter has managed the property. As the mortgagor is not a mere trustee, but has wider powers and is entitled to make a profit out of his position, and has hostile interests, which by entering into possession he has asserted, the case made esta- blishes a state of things between the parties which authorizes this inquiry into his conduct of a hostile (g) Sandford v. Seymour, 1 Moll. 181 j Travers v. Townshend, Ibid. 496; Coope v. Carter, 21 L. J., Ch 570; Whit. Eq. PI. 184. (A) Ante, Chap. I. 192 WHAT FACTS MUST BE STATED. Accounts. Against mortgagee in possession. Case lor an 'account. " Setting aside an award. Injunction. character, as the facts lie more within his know- ledge (z). No presumption is thereby raised except what the relationship established justifies. But where the wrongful acts are of a nature to be learned by the mortgagor — e.g., cases of dilapidation or deterio- ration of the property — no inquiry or account will be directed as to them without some foundation laid, by the statement and proof of particular instances (k) ; and so, where the bill seeks to deprive the mortgagee of the usual allowances for necessary repairs and im- provements on the ground that they were not neces- sary, a special case must be made on the bill (l), otherwise the decree will be in the usual form direct- ing an account of and allowances for such repairs, &c. In cases of accounts, settled accounts, awards, &c., it is only saying that the bill must state facts and not merely conclusions of law, to say that a general charge of intricacy of accounts (ni), or of an open ac- count (m), or that events had happened not provided for by the award (o), will not be sufficient to make a case for an account or setting aside the award. And so, to say that there must be a special case made to entitle the plaintiff to an injunction or to have a receiver ( j>) appointed, is only to repeat that the facts and equities relied on must be stated in the bill. (i) Dobson v. Land, 8 Hare, 220. (It) Fisher on Mortg. Pr. 495 ; Sandon v. Hooper, 6 Beav. 24'8 ; Batchelor ». Middleton, 6 Ha. 83. (/) Powell V. Trotter, 1 Dr. & Sm. 388. (m) Bowles v. Orr, 1 Y. & C. 461. (k) Frietas v. Dos Santos, 1 Y. & C. 574 ; Kinder v. Lord Ash- burton, 2 Jur. 1032. (o) Kouth V. Peach, 2 Anst. 319. (p) Dawson v. Yates, 1 Beav. 301 ; 2 Jur. 960. WHAT FACTS MUST BE STATED. 193 It is for the Court to judge whether the intricacy AcmuMs. of accounts is sufficient, according to its practice, to justify a resort to equity, and whether the account can be deemed open, and whether the event was legally within the provisions of the award ; and so the facts must be stated. With regard to opening or surcharging and falsifying a settled account for alleged errors, the equity rests entirely upon the errors, and so they must be specified {q). But though the decree is merely to surcharge and falsify, other errors may be shown under it (r). These illustrations will suffice to show the neces- sity of studying well the forms of the ordinary decrees made by the Court founded on the relation- ships established, so that the pleader may see what special facts must be stated on the bill to obtain any desired variation in the decree and the proceedings under it; lest he find himself debarred from entering on particular inquiries, &c., or involved in expensive investigations before the chief clerk, which he was entitled to have had dispensed with by the decree. But it is to be observed, that it is often desirable ractstoco- to state many things specifically when they can "^°' surely be proved, to give a colour to the case as well as to affect the costs, even though the insertion of such statement in the bill is not necessary to the decree or subsequent proceedings. Thus a charge of particular defaults by a mortgagee in possession, may (5) Johnson v. Curtis, 3 Bro. C. C. 266; Shepherd v. Morris, 4 Beav. 252; De Montmorency v. Devereux, Dr. & Wal. 119 ; Jones V. Latimer, 1 Jur. 980; Sim v. Sim, 11 Ir. Ch. R. 310 ; Newen t>. Wellen, 10 W. R. 745. (r) Coleman .,. Mellersh, 2 M. & G. 314; and see S. C, and Smith's Prin. of Equity, 193-4, as to cases for opening or surcharging respectively, and procedure under decrees. Ti. K. 194 ■WHAT FACTS MUST BE STATED. Facts to obtain dis- covery and save proof. incline the Court at once to scrutinize narrowly his conduct, and may colour the other acts charged against him. Again, the charge of such things may enable the plaintiff to obtain a discovery from the defendant, and save expensive proofs and inquiries at the hearing or before the chief clerk. One most important thing to which the attention must be directed is to frame the suit properly, so that it may dispose of all the rights of all the parties interested in the subject matter and do complete justice, and so that the orders of the Court may be safely executed by those who are compelled to obey them, and future litigation may be avoided (s). This will necessitate the statement of the facts which show the interests of such parties. Sometimes it will be needful only to bring before the Court certain per- sons occupying a representative position — as trustees, executors, &c. — and the facts showing such character must appear. Sometimes a plaintiff may have a right of suit notwithstanding he is represented by some trustee or other such person, and then he must state the special facts — e.g., fraud, collusion or refusal to sue on the part of his representative in respect of the subject matter — which entitle him to maintain the suit. Sometimes a person who has no interest in the subject matter has been guilty of such conduct in respect of it as entitles the plaintiff to make him a defendant for purposes of discovery, and then the facts of this misconduct must be alleged sufficiently to show its existence (t). But the rule that all persons interested in the sub- ject matter must be parties, is to be understood as relating to the subject matter of controversy only, («) Red. 173, 174. (<) Id. 188. ■WHAT FACTS MUST BE STATED. 195 which may be only a part, or a partial interest in, or Parties. an agreement or right concerning, a larger subject matter. Thus, in the common case of a bill by a mortgagor to redeem a mortgagee, all persons hold- ing derivative interests as subsequent assignees, mortgagees or incumbrancers under the mortgagor are interested in the subject matter ot" controversy, and their interests would be affected by the decree ; and so justice could not be properly and completely done without their being parties. But prior mort- gagees are not interested in the arrangement, or the rights under it, between the second mortgagee and mortgagor, though they are in the property or larger subject matter; and so complete justice can safely be done without their being made parties. Care must therefore be taken not to lay the bill open to any objection by reason of a misjoinder of parties not interested in the subject of controversy, caused by mistaking the latter for the whole subject matter. On the other hand, the subject of controversy may seem to be limited, but may really involve the in- terests of all parties in the whole subject matter. Thus a suit by a residuary legatee against an executor may involve the interests of all parties interested in i the will, unless the residue is stated to be ascertained; f and there will be a general administration. And so \ a suit by one of two residuary legatees against an ) executor, may involve the rights of the other party interested in the residuary personal estate of the testator, and such party would have formerly been required to be brought before the Court. To avoid that, a charge that the other residuary legatee has been paid, and the other moiety of the residue appro- priated specifically and invested upon the trusts of k2 196 •WHAT FACTS MUST BE STATED. Parties. the will, shoiild have been alleged where it was the fact. The subject of controversy will then be limited (w). A clear understanding of the subject of controversy will also prevent the improper joinder of causes of suit against several defendants, whereby each de- fendant would be loaded with an unnecess§.ry burden of costs in respect of matters with which he has nothing to do. At the same time it will be apparent that if that which is claimed by the plaintiiF against each defendant is the same general right, though the rights of the several defendants therein or in respect thereof are several and distinct, the subject of con- troversy justifies, and, in some cases, requires their all being parties (v). As to the question, whether persons interested should be made co-plaintiffs or defendants, the general rule seems to be, that all persons having interests which do not conflict should be on the same side of the record ; and if any of such parties , who ought to be plaintiffs refuse to be such, an \ allegation to that effect must be put in the bill, and they must be made defendants. These few remarks on the subject of parties are given by way of caution only, since to treat it pro- perly would require a separate work. Some of the remarks, it will be seen, are illustrated by the cases referred to in previous pages. The provisions of the 15 & 16 Vict. c. 86, s. 42, as to legatees, cestuis que trust, executors, &c., have in many cases simplified the question of parties, and must be consulted. DecreemCate Finally, it must be remembered that the nlaintiff made, only. ■' j „ , can only nave renei secundum aUegata et probata of {u) Hutchinson v. Townsend, 1 Keen, 675. (v) Red. 181 et seq. "WHAT FACTS MUST BE STATED. 197 the bill («). The decree must be secundum formam Decree m Case pentionis (w). tie must make out a complete case for relief on his bill ; and though the answer or evidence may disclose facts which would have given a right i to relief if alleged in the bill, he cannot avail himself/ of them without' adding them to his bill by amend-\ ment, or putting them in issue by a supplemental bill, as the defendant might have had a defence if the opportunity to make it and notice of its necessity , had been given (x). Thus, if there is a bill for an account against an executor, in which is no charge of mismanagement of assets but only an allegation of receipt of assets, and the answer discloses gross acts of mismanagement, no relief on that footing can be given (y). If, however, the evidence of the plaintiff wheninquiry ,. , » 1-1 ■ • -1 allowed 33 to discloses facts which, though not in issue on either facts not in issue. side, would make it appear to the Court that the defendant might have had some defence if the case had been thoroughly sifted, the plaintiff will be put to his election whether he will have his bill dismissed without costs or submit to an inquiry into the facts suggested by the evidence {z). And in all cases it (v) Ante, p. 9 ; Whaley v. Norton, 1 Vern 483 j Gordon v. Gordon, 3 Swans. 472; Irnham u. Child, 1 Br. C. C. 94; Hall v. Maltby, 6 Price, 240 ; Williams v. Llewellyn, 2 Yo. & J. 68 ; Montesquieu <^. Sandys, 18 Ves. 302; Dawson «. Yates, 1 Beav. 301; 2 Jur. 960; Barton v. Blakemore, 2 Jur. 1062 ; Houghton ». Reynolds, 2 Hare, 266 ; Story, Eq. PI. § 264. (mj) Hinde, Ch. Pr. 284, 285 ; Wy. Prao. Reg. 374. (x) See references in last two notes; and Knox v. Gye, 12 W. R. 145; S. C, on appeal, 1125; Hayward v. Purssey, 3 De G. & Sm. 399 ; Williams v. Shaw, 3 Russ. 180. (y) Story, Eq. PI. § 264 ; Gresley on Ev. 23. («) Phelps V. Prothero, 2 De G. & Sm. 274, 283 ; Hill v. Filkin, 1 Coop. 428, 521 ; Bennett ». Neale, Wight. 324. 198 WHAT FACTS MUST BE STATED. Decree on Ouj seems to have been thought to be in the discretion / of the Court to direct an inquiry where it is apparent I that facts offered in evidence materially affect the \ justice of the case, but are not in issue on the Inquiry as t4 plcadino'S (a). It appears doubtful, however, whether facts not in T ° , . , , . i- ^i_ i j- issue. " it was ever the rule to travel out ot the pleadings except in very exceptional cases : and the present course seems to be to confine the parties to the pleadings and allow of no amendment and direct no inquiry at the hearing in respect of matters not in issue, except " where justice absolutely requires it, as, for instance, where the Statute of Limitations might run and a right be barred" if not set up under that suit (b). Certainly the granting the means of remedying the defect in the pleadings in these cases is an indulgence, and it might not be conceded where there was any neglect or default in keeping back the matter till the evidence; and moreover, perhaps it would not be allowed in respect of evidence affecting the title of the plaintiff or the gist of the matter, so as to alter the entire case for relief (c). Matters, however, alleged in the answer, are put in issue by the replication; and if they be merely matters of inducement and not of the gist of the (a) See cases collected in an elaborate note to M'Mahon v. Burchell, 1 Coop. 480 et seq., 582. (6) The cases referred to in the last note, so far as they support the granting of an inquiry, relate chiefly to specific evidence, admis- sions and conversations, not themselves expressly put in issue, though the facts or conclusions of law supported by facts, to which they relate, were properly put in issue. Ante, p. 149; and see Lord Darnley ». London, Chatham & Dover Railway, 11 W. R. 388- Gossip V. Wright, Id. 634. (c) Platel V. Cradock, 1 C. P. Cooper, 481 j Holden v. Hearn, 1 Beav. 445 ; Watts v. Hyde, 3 Russ. 409 412. Matter of in- ducement need not be stated by amendment. ■WHAT FACTS MUST BE STATED, 199 pleading, they need not be stated in an amended bill, netree on cax mil • 1 /. <. 1 made, only, Inus where the material facts or the case were that a bona fide claim was made upon the defendant, and that he deliberately entered into a compromise in respect thereof, and the facts upon which the claim was made were wrongly stated but appeared by the answer and evidence, the bill was held to be suffi- cient; though it would have been more convenient, it was said, to have placed the true facts upon an amended bill (c?). And in many cases it may be convenient to state, by way of pretence in an amended bill, matters appearing in the answer, so that any particulars inconsistent with the averments of the answer may appear on the face of the bill, and the defendant may be further interrogated as to them. Thus, where the answer stated that the defendant had never interfered in the business and was quite a stranger to the matters mentioned in the bill save as he had been informed by his co-defendant, and that he believed the truth of the allegations of his co-defendant; the bill was amended, and said that the defendant pretended, as in the answer he had stated [following the words of the answer], and charged that the information given to the defendant was incorrect, and so it would appear if he would ■ consult the partnership books, whereby he would find certain entries mentioned inconsistent with what he had stated ; and the amendment was considered not to be impertinent, and the plaintiff was allowed to interrogate as to the matter of the charge in the amended bill (e). And, of course, any facts in avoid- (rf) Attwood V. , 1 Russ. 355, 359, 361. (e) Seeley v. Boehm, 2 Mad. 176. 200 WHAT FACTS MUST BE STATED. Decree on Case ance of the defendant's allegations, must be con- made, only. " ■ i ii j tained in the amended bill, if not previously alleged. / It may be proper to add, that when a cause is heard / on bill and answer, the answer is considered sufficient ! for the plaintiff's purposes, and there is no necessity for any alteration in the frame of the bill. And when it is heard on rnotion for a decree, the same ! rules as to the decree being founded upon the alle- gata et probata will apply, as in the case of a repli- ^ cation, and the only difference will be in the mode of proof. It may be, perhaps, that the Courts may be more stringent, since the New Rules as to evidence, than they formerly were, in confining the parties to the cases made by them upon the pleadings; because there are now better means of learning the facts be- fore the cause comes to a hearing, and less excuse for not putting in issue the real cases on which they may respectively rely (_/). (/) Ante, p. 120 et seq. ( 201 ) CHAPTER VII. CHARGES AND PRETENCES. The term "charge" has sometimes been used in previous chapters, and is often used in the books and cases, as synonymous with " allegation." Sometimes, however, the word is employed in a more restricted sense (as in Chapter VI.), in reference to an alIegation\ made, by way of pointing the facts stated in ,the bill,/ upon which the plaintiff's equity is based, so as to show what is the case upon which he relies. But Repucatoiy there are also other charges, technically so called, pretences. which, until the late changes, formed a regular part of a bill, and were introduced for the purpose of meeting any defence which the defendant might set up ; they are anticipatory or replicatory charges. To understand them aright, it is necessary to refer to the subsequent pleadings in a suit in equity. Pleadings in equity seem to have been borrowed from the civil law. The bill was the libellus articu- latus, and contained the statement of the plaintiff's position and interrogatories founded thereon, and a prayer for relief. The answer was the responsio, and contained the defence and the answers to the inter- rogatories, and it admitted, contested, or denied, all the allegations of the bill. To this the plaintiff put in a replication, which contested the answer and re- affirmed the sufficiency and truth of the bill. The answer commenced by a saving clause, claiming the k5 202 CHARGES AND PRETENCES. SmS benefit of all just exceptions to the bill on the ground pretences. of g^jh matters (it seems) as appeared on the face of the bill to render it insufficient (a). A general traverse also of the matters in the bill not specifically traversed vFas, in the practice of Chancery, appended. What was the origin of this traverse seems doubtful. It was said to have come into use when the answer contained only a statement of the defence, and to be unnecessary where all the positions of the bill were (according to the practice of the canonists) specifically admitted or contested (6). However that may be, the whole facts and law of the bill and answer were tendere4 iu issue by means of the answer and repli- cation, and were put in issue by the rejoinder or joinder in issue (c). The plea was a preliminary proceeding answering to the exceptio, and stated some single ground why the bill should be dismissed and the defendant not be called upon to answer. The defence, therefore, rested upon this single ground, and the cause went to a hearing upon such ground alone; and if it was found sufficient in law and true in fact there was an end of the case ; but if it was either insufficient in law or false, the defendant was then obliged to answer the whole case (d). It might, however, turn out that the plaintiff could allege some new matter avoiding, or by way of special traverse of, the defence made by answer or plea, which, again, the defendant could meet in his (a) Gilb. For. Uom. 22, 44, 45, 90, 91. (6) 2 P. Wms. 97. (c) Gilb. For. Rom. 45. (]), where a bill was brought by a woman to have an account of her father's personal estate, and to have a fifth as her share of it, and charged that the defendant pretended that the legacy of M. M. was lapsed ; and the decree directed an account, and expressly that certain stock should be sold, and that one-fifth part should be reserved for the benefit of an infant when (p) As to the effect of the pretence in construing the charges, see Ferraby v. Hobson, 2 Phil. 259 ; Glasscott v. Lang, 2 Phil. 310. (}) Gregory o. Molesworth, 3 Atk. 626. CHAHGES AND PRETENCES. 209 he attained twenty-one ; " this was as full a deter- mination against the plaintiff [under the circum- stances of the case, which are not fully reported] as if a declaration on the point that the plaintiff was not entitled," because the pretence " was the common and only way of bringing on the question [whether the legacy of M. M. had lapsed], and, therefore, sufficiently put the point in issue;" and, accordingly, the decree was allowed to be pleaded as a bar to another suit raising the same question. Pretences with charges to the contrary are, how- Pretences of 1 • p 1 conclusions of ever, often used to suggest conclusions of law, when lawputno °° fact in issue. the facts upon which they should be based are not stated. Thus, in a redemption suit, the plaintiff may suggest that the defendant pretends or claims that he has some other mortgage or charge upon the pro- perty, but that no such mortgage or charge exists.^ Such pretence and charge do not put in issue the ) subject of the pretence (r); nor, in a great majority of/ cases, would they be needed to raise an issue upon it, because the main relief prayed by the bill in sub- stance involves its decision. Thus, in the example above used, a decree that the plaintiff shall redeem, on paying the principal, interest and costs found due upon the mortgage stated in the bill, renders it un- necessary for him to pay more for redemption than that amount. But where the decree will not neces- Pretence of a. claim puts sarilv involve a determination of the issues sug- fact ot claim •' . *^ in issue. gested by such pretence, the latter may sometimes be of use where one defendant's only title to be made a party depends upon his claiming some in- (r) Ante, p. 70 ; post, pp. 212, 213. It is evident that such pre- tence and charge to the contrary only amount to an allegation of a conclusion of law, which puts nothing in issue. 210 CHARGES AND PRETENCES. When grounds of claim should be stated. Or acts done under it. Discoverv charges. terest in the subject-matter of the suit. Then the charge that he claims that interest puts that fact in issue (though not the legal conclusion that he is en- titled to an interest), and renders it incumbent upon such defendant to admit that he claims, and, if so, to set out the particulars of his claim, or to disclaim, and thus determines his right by the suit. If, how- ever, the defendant really has any interest in the subject-matter, in respect of which he ought to be brought before the Court is), it may be advisable to state the facts, according to the way in which we have seen a defendant's title ought to be stated, and thereby the plaintiff will justify the making him a party, and, even if he disclaims, can have a decree against him upon the ground of the disclaimer, and can make him put in a full answer to the bill {t). And similarly, if the defendant has actually asserted his claims by open acts disturbing or threatening to disturb the plaintiff, these acts should be stated so that a decree may be had against him, even though he has no actual right and disclaims (u). In some cases, where the issues suggested by the pretence are not involved in the main case, the pre- tence would not operate to raise them — the parties claiming such charges, &c., not being before the Court — and would be of no use. Thus, the common charge in a foreclosure suit, that the defendant pre- tends there are some other mortgages, charges or in- cumbrances, would not suggest issues which would be decided by the ordinary decree. It is used to found an inquiry from the defendant as to the existence and (s) Ante, p. 127. (0 Graham v. Coope, 9 Sim. 93 ; 3 M. & Cr. 648. («) Red. 319. CHARGES AND PRETENCES. 211 particulars of such charges, so that all proper parties Discovery may be brought before the Court ; but is unnecessary '*'"^^' for that purpose, as the inquiry may now be made without the pretence (a;), because it is the defendant's duty to inform the mortgagee whether he has in- cumbered the equity of redemption, so that the latter may know whom to make parties, and so obtain his rights. And similarly a mortgagee would be bound to tell the mortgagors who are interested in the mort- gage {y), and there would, therefore, it seems, need no " pretence" for the purpose of an interrogatory relative to the matter. Indeed, in these cases, the information is material to the plaintiff's case, though there is no special allegation on the subject. Having stated his position as mortgagor or mortgagee, the right or equity of his case is to be allowed to redeem or foreclose all persons interested on the other side, and to be informed by the defendant who such par- ties are, that they may be brought before the Court, and "enable him to obtain a compleat decree" («). The Courts would not formerly, however, allow any interrogatory relative to such matters without a special allegation or pretence to found it («) ; but the Chan- cery Commissioners, in their Report of the 29th of March, 1826, recommended that greater latitude should be allowed in putting interrogatories material to the case, instead of requiring special allegations or pretences to found the inquiries (6), and the late statute which enacts only that the material facts of («■) Ante, p. 132 ; Marsh v. Keith, 6 Jur., N. S. 1182 ; 9 W. R. 115 ; Hudson ». Grenfell, 3 GifF. 388 ; 8 Jur., N. S. 874. {y) Scarborough v. Parker, 1 Ves. jun. 267. («) West. Symb. 104.' (o) Wig. Disc. 53, 124; Story, Eq. PI. 32, n. (6) Story, Eq. PI. 33, n. 212 CHARGES AND PRETENCES. Discovery When issues of fact are raised by " charges to the contrary.' the plaintiff's case should be stated, and says nothing of pretences and charges, seems impliedly to adopt that recommendation (though the form of a bill given in the schedule actually gives an example of such a pretence as above referred to in the case of a re- demption suit), and the above cases of Marsh v. Keith and Hudson v. Grenfell seem to take that view of the statute. An issue of fact may, nevertheless, be as well raised by a pretence and charge to the contrary as by the proper statements of the bill : and there is no rule that the plaintiff's facts or equity must appear by the stating part of the bill (c) : but the remark before made must be remembered, viz., that if aver- . ments and facts are introduced to meet a pretence of some conclusion of law, they will have their colour given to them by that pretence, and will not, without express allusion to them for the purpose, be available for the support of some other conclusion of law upon which the main claim to relief reposes ((i). If the main charges, therefore, fail, in equity or on the facts, the pretences and charges may sustain the bill for relief, provided they establish an independent ground of relief and are not merely replicatory to objections to the main charges. By keeping in view the distinction between a (c) Houghton V. Reynolds, 2 Hare, 264 ; Mayor of Rochester v. Lee, 10 Jur. 40 ; and see Story, Eq. PI. 31, and cases there referred to. And see Plumbe v. Plumbe, 4 Y. & C. 348, where Flint v. Field is explained to have decided merely that an allegation that defend- ant pretends there was a certain fine and a charge that if there were 'he testator was insane at the time, did not amount to a charge that defendant claimed under the fine. (d) Ante, p. 208; Glascott v. Lang, 2 Phil. 310; Ferraby ... Hobson, 2 Phil. 259. CHARGES AND PRETENCES. 213 pretence of a fact and a pretence of a conclusion of law, and the principle of Glascott v. Lang and Ferraby v. Hobson, some of the cases may be re- conciled which at first sight appear to lay down different rules as to the effect of a charge " that the contrary is the fact" (e). Such a charge is a good averment of a fact where the pretence is of a fact ; but is an insufiicient allegation of a conclusion of law to the contrary of that raised by the pretence, unless it goes on to add the facts in support, or unless they have been already stated : otherwise, as we have seen, it raises no issue upon the point of law, and certainly does not properly aver any fact but the fact of the claim. But such a charge will support a claim for relief upon any equity clearly raised by it on the facts stated elsewhere in the bill or in such charge. In conclusion, it must be observed, that where the pretences tmd title or the facts of the defendant are stated by way iranied. of pretence, and the plaintiff's right of suit does not depend on such title or facts, they need not even be stated with the positiveness (/), precision or certainty necessary where the title or facts form part of the plaintiff's case, but are more peculiarly within the defendant's knowledge. But the facts in avoidance must be properly alleged as plaintiff's facts. In the where only case, moreover, where a claim on the part of one de- sought. fendant is alleged for the mere purpose of obtaining a discovery from that defendant, the allegation of the mere claim is sufficient without setting out his title or any acts of disturbance {g). (e) See cases, ante, note (c), and remarks in Houghton n. Rey- nolds, 2 Hare, 267, and Morris v. Morgan, 10 Sim. 314. (/) Red. 42. (g) Plumraer v. May, 1 Ves. sen. 426, and note. ( 214 ) CHAPTER VIII. ANSWERS AND PLEAS. Be POKE we pass on to amended bills, a few words as to answers and pleas may be useful. Answer as a We shall first consider the answer as a pleadine, that is, as a reply to the plaiatifi s case. If the statements of the bill are in part denied by the defendant, and he rests his defence upon the un- truth of them, he may, unless required to answer, content himself with putting in no answer at all ; the effect of which will be, that he will be considered as i having traversed the case, that is, every fact and i conclusion of law or equity tendered in issue by the ' bill (a). But if the defendant answers at all, either because he relies upon some matters not referred to in the bill, as well as upon a traverse of some of the allegations of the bill, or because he is required to answer, or for any other reason, he will not be held to have admitted the allegations of the. bill, except so far as he has expressly done so by the answer (J). (o) 15 & 16 Vict u. 86, s. 26. This section only applies to cases where the defendant is not required to answer and does not answer ; Heath «. Lewis, 17 Jur. 1090 ; Patrick v. Blackwell, Id. 803. (i) This was the rule under the old practice (Wig. Disc. 26). But it may be doubtful whether it is the rule now. As we have seen, the answer originally contested specifically those parts of the bill which the defendant intended to contest, and the replication in ex- press terms re-affirmed the truth and sufficiency of the bill, and con- tested the answer in these respects (ante, pp. 201,202), and it formally ANSWERS AND PLEAS. 21c Suppose, then, an answer to be drawn. The parts of Answer ma it which allege the defence must be framed on the tendered in issue all the allegations of the bill and answer, by offering to prove its assertions in such manner " as the Court should direct," just as a party would tender issue at common law by "putting him- self upon the country." The defendant then joined or accepted issue by means of a rejoinder, or the joinder in issue was effected by the plaintiff's assigning a "probatory terra" to the defendant to join issue (Gilb. For. Rom. 45 ; lub6, Eq. PI. 105 ; Hinde, Ch. Prac. 293). A general traverse was usually appended to the answer, to save the defendant from being taken as admitting any allegations of the bill not expressly denied, but was not necessary where all parts of the bill were specifically answered ; and the answer commenced with a saving clause claiming the benefit of all objections in law which might have been taken by plea or demurrer (2 P. Wms. 87; Red. 313, 314, and see form in Lubg, Eq. PI. 364; Whit. Eq. Prec. 594, 608; Hinde, Ch.Pr. 207). And thus, either specifically or by means of the general traverse and saving clause, all the allegations of the bill and their sufficiency in law and equity were contested by the answer, were tendered in issue by the replication, and were put in issue by the rejoinder. The general traverse, however, was subse- quently frequently omitted (Whit. Eq. Prec. 608 a). But even then the form of replication continued the same. It still said that the plaintiff would "aver, maintain and prove" that the bill was " true and sufficient in the law to be answered unto," and the answer " un- true and insufficient in the law to be replied unto," . ..." all which this repliant will be ready to aver, maintain and prove as this honor- able Court shall direct" (see form, Hinde, Ch. Pr. 285 j Willis, Eq. PI. 618; Story, Eq. PI. p. 849, n.). Thus it still tendered in issue all the allegations of the bill, whether contested by the answer or not, and the rejoinder accepted that issue; and so the parts of the bill not traversed by the answer were yet not admitted, and must be proved at the hearing. But under the new practice the replication is no longer the same in form or substance. It runs, " The plaintiff inthis cause hereby joins issue with the defendant," and is in fact a rejoinder or joinder in issue (Gen. Ord. XVII. r. 2). To understand then its effect, we must look to the previous pleading— the answer — and see what it tenders in issue. That will be only such new facts as it advances, and such of the.allegations of the bill as it specifically traverses, unless it conclude with a general traverse. The only issues at the hearing will be as to the facts so traversed, and every thing H'ew matter ■how stated : 216 ANSWERS AND PLEAS. ^'mem"' ^^"^^ rules as a bill stating a plaintiffs case. That is, the allegations must be statements of facts, and must clearly show the conclusions of law founded upon them, upon which the defendant relies ; must be positive, not ambiguous, vague or argumentative; and must be suflBciently particular, with the same exceptions in the parts which relate to the opponent's title, and to facts more within his knowledge; and the defendant cannot avail himself of any matter in defence of which the plaintiff has not notice by its new matter must appear in answer. else will be admitted. It may be expedient, therefore, to revert to the old practice of appending a general traverse to an answer where, for any reason, the defendant does not traverse or deny specifically all the allegations of the bill which are intended to be contested. It is true the form of answer given by the Gen. Ord. XV. does not contain a general traverse, but we have already seen what weight is to be attached to such an omission (ante, p. 211). And although Gen. Ord. XV. i. 2, directs a defendant to traverse or deny explicitly and not by way of negative pregnant every allegation which he is required to answer and desires to traverse or deny ; yet he may not be required to answer some of the allegations, and in such case, at any rate, if he neither specifically or by means of a general traverse contests such allegations, such rule will not affect him, and he will, it is submitted, be taken to have admitted the allegations. If the Gen. Ord. is not to be confined to the case of an allegation to which the defendant is interrogated, then of course all the bill will be ad- mitted which is not specifically traversed or denied, and even a general traverse will not serve to remedy the defect in the answer. The direction of Gen. Ord. XVII. r. 2, that after the "cause is completely at issue " by force of the replication, each party " may verify his case by evidence," leaves open the question, what is the case of each party respectively, and so has no bearing on the subject we have been considering. It might, perhaps, have been different if the rule had said the parties may verify the hill or answer re- spectively. Indeed, the rule relates to replications to both pleas and answers, and certainly the plea would admit all the matter of the bill (for the purposes of the plea) not traversed, and so the respective cases of the plaintiff and defendant would not include such matter. ANSWERS A.ND PLEAS. 217 being on the pleadings. Though the Courts are Answer as a more indulgent to a defendant than to a plaintiff, on account of the former being obliged to answer within a limited time (c). The defendant may set up different defences oMerentae > ,, "^ ^ fences on rounded on the same facts ; but may not make in- ^""^ '*^''- consistent statements of fact by way of defence, as his answer upon oath would contradict itself. Where °''°™* "' ^ defence must the defence advances no new facts, it must show "e shown. what is the view of the facts upon which it relies ; and if one view is advanced, another cannot be urged at the hearing (rf). It, however, appears to be suffi- ce) Dan. Ch. Pr. 676 et seq. ; Red. 298, 309 ; Wig. Disc. 285, 310, 352. And see Faulder v. Stuart, 11 Ves. 301, 302 ^ Moore v. Edwards, 4 Yes. 23, as to averments being positive and not argu- mentative, though it is sufficient if the defendant says, as to facts not within his personal knowledge, "he is informed and believes," to put such matters in issue ; Drew v. Drew, 2 Ves. & B. 159 ; Kirk- man t. Andrews, 4 Beav. 538. As to particularity, see Lynn «. Beaver, Tur. & Rus. 63; Oldman v. Slater, 3 Sim. 84; and as it appears from Faulder v. Stuart, that the same rules apply in the main to a defence by answer and by plea, see also cases cited post, as to pleas not being vague, or sufficiently particular, or mere statements of conclusions of law. And see ante. Chaps. I., VI., and Lane v. Hardwick, 9 Beav. 149; Holden v. Hearn, 1 Beav. 445 ; Clarke w. Turston, 11 Ves. 240; Smith v. Clarke, 12 Ves. 477; Hodgson v. Thornton, 1 Eq. Ab. 227 ; Bulch v. Tucker, 2 Ch. Ca. 49 ; Powys v. Mansfield, 6 Sim. 565; Dunn v. Calcraft, 2 Sim. & Stu. 56; M'Mahon V. Burchell, 1 Coop. 456, ante, p. 298 ; as to nothing being proved, not on the answer or pleadings. If the defendant's evidence is insufficient, the granting an inquiry is an indulgence, and the Court will not so direct, except as to matters in issue by the answer; M'Mahon v. Burchell. And see Sidneys. Sidney, 3 P. Wms. 276; Watkins v. Watkins, 2 Atk. 96 ; Whaley ». Norton, 1 Vern. 483, n. 1, as to certainty in putting facts in issue. (d) Dan. Ch. Pr. 676 et seq. ; Jes. Coll. v. Gibbs, 1 Y. & C. Ex. Ch. 145. It is hard to see what is meant (Dan. 677) by the state- L. L 218 ANSWERS AND PLEAS. Answer ua a Defence. Ground of de- fence must be shown. Defenee on facts stated by plaintiff. Notice of the facts and grounds of defence to be given. Evidence need not be stated. cient if the defence is substantially raised by the pleadings, though the claim to relief is not expressly denied on the ground of such defence. Thus, in answer to a bill to set aside an agreement to give up a contract on the ground of duress, the defendant stated acts done under the agreement to his pre- judice; and this was held sufficient, without a formal averment that the agreement had been ratified, and ought not to be set aside (e). The defendant can rely on any facts stated by the plaintiff (/), but any additional facts, we have seen, he can neither prove or use, if not alleged in his answer, seeing they will not be on the pleadings. That is, if the plaintiff, by his own showing, has no case, the Court will not assist him ; but, otherwise, the defendant must state a defence so as to give the plaintiff notice of it {g). And for the above reason it is also, that he must state his facts with cer- tainty {h), and show what defence he makes upon the facts in issue (i). He must, in fact, state the facts and grounds of his defence, so as to show the plaintiff what his case is and the nature of his title (,j). The defendant need not, however, any more than a plaintiff state the evidence of his case. The case of ment that conclusions of law should not be stated, and yet the de- fences founded on the facts should be indicated. (e) Ormes ». Beadel, 2 De G., F. & J. 333. (/) Stanley v. Kobinson, 1 R. & M. 527 j Marsh v. Russell, 3 My. & Cr. 43. (g) Ibid. (ft) Ante, p. 217. (j) Harrison ». Borwell, 10 Sim. 382 j Stanley v. Robinson, 1 R. & M. 527. (j) Baker ». Athill, 2 Anst. 193; Wig. Disc. 285—293; 1 Moll. 347 — 361 ; Hardman v. EUames, 5 Sim. 640. ANSWERS AND PLEAS. 219 Ivyu.Kekewich (A), however, seems to lay it down that Ammrasa ,«, ,. -,.,, ,.- . Defence. a deiendant may claim as heir without showing how he is heir. This is contrary to the rule that facts, and Jtatea?"'™^ not mere conclusions of law, must be stated in all pleadings. But in that case the only question at issue was, whether the defendant could be compelled to answer by way of discovery, and not how he should set out his defence, as to his claim of title ex parte ■paterna. The defendant seemed to have (so far as can be learned from the brief report) more than one defence, and could perhaps have rebutted the suit by the other defences, without relying on the title as heir, which the bill said he claimed. He answered that he did claim such title and was bound to answer no more, though if he had failed in his other defences, he might have failed also on this for want of statement of fe.cts. In drawing the parts of the answer which deny or Pretences, traverse the allegations of the bill, a consideration of met. the nature and character of the pretences and charges in the bill must be had. Where the pretence and j the charge of the contrary relate to a fact, the denial or traverse will put that fact, or some particular of it, in issue. Where the pretence and charge to the con- trary relate to a mere conclusion of law unsupported by facts, then, in order that it may be put in issue and relied upon for the defence, there must be express / 2_ statements of the facts and a charge of the conclu- sions of law. This is in fact a case where matter, not properly raised by the bill, must be stated by the defendant — and comes not under the part traversing the bill, but the part alleging new matter. Such- (ft) 2 Ves. jun. 679. l2 220 ANSWERS AND PLEAS. Pretences, how to be met. 9 Armer at a pretcnces, we have seen, put in issue nothing but the fact of the pretence (0, and that only requires to be answered. But unless the facts of the claim are stated in the answer by way of defence, the plaintiff has no notice of the facts and nature of the defence, and the facts cannot be proved (m). Thus, where a plaintiff states a mortgage and asks for an account, and to be allowed to redeem on paying what shall be found due, and charges that the defendant (the mort- gagee) pretends that he has some other mortgage or charge for £ upon the lands, but that no such mortgage or charge was ever made or exists, this only puts in issue the fact of the defendant claiming such charge, and not the existence or nature of the charge («) ; and, therefore, it would seem, that a mere allegation in the answer that the defendant is entitled to another lien or charge for £ will not put any- thing in issue, except the fact of such claim, nor give the plaintiff any notice of its nature and extent ; but the defendant must set out the facts upon which the inference of law that he is entitled to such lien is founded, in order that the existence, nature and extent of it may be inquired into by the plaintiff and determined by the Court, or he will not be enabled to prove and claim such lien or charge. Facts appear- Howevcr, it must be observed, that although notice tiff's evi- of a certain defence is not given by the facts being put in issue upon the pleadings, yet if the facts come out upon the evidence of the plaintiff, the Court will direct an inquiry to clear up the point, so that the decree may be made according to justice upon the (0 Ante, pp. 212, 213. (m) Ante, pp. 217, 218. (n) Ante, pp. 70, 209, 213. ANSWERS AND PLEAS. 221 report (n). The facts are by this means indirectly ^n«''«'<"« ^ , '^ JHscovery. put upon the record, and the decree is, upon the face of the record, founded upon the alleyata et probata, which would not be the case if the Court decided upon the evidence alone. The answer as a discovery must be direct and Discovery. without evasion to the material parts of the bill, and not by way of negative pregnant, and answering the charges literally and not substantially is not suf- ficient. The substance of each specific charge in the bill to which the defendant is interrogated must be specifically confessed or traversed, and particular charges must be particularly, answered (o). An in- sufficient answer is no answer at all(p). " A negative pregnant is a negative, implying also an affirmative ; as if a man being impleaded to have done a thing on such a day or in such a place, denieth that he did it modo et forma declarata, which implieth, nevertheless, [or rather, does not deny], that in some sort he did it" (q). And if he be charged with a receipt of a sum of money, " he must deny or traverse that he hath not received that sum or any part thereof, or else set forth what part he hath received. And so, where a fact is alleged with divers circumstances, the defendant must not deny or traverse it literally, as it is alleged in the bill, but must answer the point of substance positively (n) Parken ». Whitby, T. & R. 366, ante, p. 197. (o) Mont. Eq. PI. 184, 331 V. (n.), 195 ; Red. 309 ; Cons. Ord. 15, r. 2 ; Read v. Barton, 3 K. & J. 166; 3 Jur., N. S. 263 ; Reade v. Woodroffe, 24 Beav. 421 ; Earp v. Lloyd, 4 K. & J. 58. (p) Gregor v. Arundel, 8 Ves. 88. (}) Beames Ord. Chan. 179, u. 56, 222 ANSWERS AND PLEAS. iAvMxrata and Certainly" (o). In fact, the defendant must take each of the circumstances or facts directly averred and give a distinct answer to them, though they be combined in one in the bill. But it may be proper •^ to remark, that it is not necessary to deny every fact implied in a bill which it is intended to traverse. As we have seen, every main fact implies many a subor- dinate fact, and, as a matter of common sense, it is apparent, that to lay down any such rule would only be to cause the pleadings to be infinitely and absurdly prolonged. It is only where the pleader has thought it right to split up his main allegation, or where it consists of several direct though united averments (e. g., the averment of the receipt of the whole sum is a direct averment of the receipt of each part of it), or where he has chosen to lay it with divers circum- stances, that the answer must select what particular part of it, or distinct averment or circumstance, he I /^ must traverse, and not naerely deny the allegation ^ ft) (following the words of it) so as to leave it in doubt y j whether he denies all or which of the parts or aver- ments or circumstances. Where, however, the bill states some main fact, an answer which only traverses some of its details and states fether facts which, together with the denials, would show that the main fact charged cannot be true, would be an argumenta- tive answer, and no sufficient traverse of such main fact (r). It would be bad as a pleading, as it would not raise a direct issue. The defendant must either directly confess the main fact and state his fresh (?) Gen. Ord. XV. r. 2. (r) Faulder v. Stuart, 1] Ves. 301,302; Moore o. Edwards, 4 Ves. 23 ; and it would be insufficient in a plea, Id. ANSWERS AND PLEAS- . 223 as a Diseover^i facts in avoidance of its legal effect, or he must state W'jfwe'- matter meonsistent with the alleged fact and deny/ the latter, or state the main fact with any qualifi- cation, addition or explanation, and deny it " save as aforesaid," [these two latter answers are " special traverses"], or he may simply confess or deny the allegation, according to circumstances. These remarks, perhaps, only apply (in the main) to an answer by way of discovery, and the objection on the ground of the neglect of any of these rules would be taken by way of exception to the answer. A general traverse (we have seen): may, perhaps, suffice to tender in issue the allegations of the bill where no exception is taken or where they are not interrogated to. Further, as concerns the answer as a discovery, it need only answer the parts of the bill to which the defendant is specifically interrogated ; and an answer to any other parts of the bill, which only states the defendant's ignorance of the matter, will be deemed impertinent (s). Minute particulars will not be re- quired unless necessary, and if the answer is sub- stantially sufficient exceptions will not lie (0/ but where the allegation is distinct the answer must be so. Thus, where there was an allegation that land had been conveyed to J. S., and an interrogatory whether it had been conveyed to "J. S. or any other and what person," the answer that it had been con- veyed to A. B. and " save as therein appeared, defendant could not set forth whether it had been conveyed to J. S. or any other and what person" («) Con. Ord 15, r. 3. (i) Reade v. Woodroffe, 24 Beav. 421. 224 ANSWERS AND PLEAS. Anmerasa was Considered evasive, because it did not " therein Jjtscovery. ' appear" vrhether or not it had been conveyed to J. S., or whether or not defendant could set forth if it had been so conveyed (w). Where the interrogatory re- quires particulars, they must be set out {x). The rule was, that the defendant was not obliged to answer interrogatories not founded on specific alle- gations in the bill (y), but now it appears that he must answer all interrogatories as to all things or the evidence of things material to the issues and case made by the bill, whether referred to by special allegations or not(«). If defendant knows nothing of the matter interrogated to, he must say so dis- tinctly; " I do not know." As a general rule, if he says he " believes" anything averred by the bill, this will be an admission, for what the defendant believes the Court will believe in such case, but it seems this rule will not apply to admissions of the title of the plaintiff to sue (a). A defendant must answer directly, and not as to his belief or remembrance, as to acts charged as his own acts, if it be laid to be done within seven years. As t© the act of another, which he does not certainly know, he ought to say, he has heard and believes or thinks it to be true, or does not think or believe it to be true, and not to say only, that he has heard (6). (m) Earp V. Lloyd, 4 K. & J. 58. (x) Bridgewater ». De Winton, 12 W. R. 40. (y) Wig. Disc. 124. (z) Marsh v. Keith, 6 Jur., N. S. 1182; 9 W. R. 115 ; Hudson v. Grenfell, 3 Giff. 388, 8 Jur., N. S. 874 ; ante, pp. 132, 133, 210, 211. (o) Potter V. Potter, 1 Ves. sen. 274; Hill v. Binney, 6 Ves. 738. (6) Hinde, Ch. Pr. 197. ANSWERS AND PLEAS. 226: The defendant must also answer fully, if he answer Anmer. at all and do not defend himself by plea or demurrer. Answer must •' r xie full. By raising the same defence to the relief, or any portion of the relief which he could have raised by plea or demurrer, he cannot escape any discovery sought by the plaintiff. So to escape, he must plead or demur to the relief or that portion of the relief to which the discovery relates (J). He need only, how- ever, give such discovery as is material to the decree, and not that relating to subsequent inquiries before the Chief Clerk (c). If the defendant should wish to file interrogatories petenaanfs under the new practice, instead of filing a cross bill tones. for discovery, they must be founded on the state- ments in the bill and answer {d). In regard to documents as to which the defendant Documents. is bound to give discovery, he may merely refer to them where it would be inconvenient to set them out at length ; but he must describe them and file them as exhibits and, if they are voluminous, point out the parts from which the plaintiff can obtain the infor- mation sought (c). It is usual to add to a statement of the nature of "Craves leave to refer." a document upon which the defendant relies, or to a (i) Great Luxembourg Railway v. Magnay, 23 Beav. 646 ; Bleckley ». Rymer, 4 Drew. 248 ; Reade v. Woodroffe, 24 Beav. 421 ; Leigh V. Birch, 9 Jur., N. S. 1265; Swabey ». Sutton, 9 Jur., N. S. 1321. (c) Turney v. Bayley, 12 W. R. 633. (d) IS & 16 Vict. u. 86, s. 19. (e) Lefevre v. Falkland Island Co., 3 K. & J. 267; 3 Jur., N. S. 236 ; 26 L. J. 415 ; Telford v. Ruskin, 1 Dr. & Sm. 148, 8 W. R. 575 ; Drake v. Symes, John. 547, 8 W. R. 85 ; White ». Williams, 8 Ves. 193; Christian v. Taylor, U Sim. 401 ; Bally i>. Kenrick, 13 Price, 291. L 5 226 ANSWERS AND PLEAS. ■ inff^r . reference or admission as to a document upon which cravesieave he has been interrogated, the words " but I crave leave to refer for greater certainty to the said [In- denture] when produced," or words to that effect. The case of Hardman v. EUames (_/), decided that these words of reference made the document part of the answer, and that the plaintiff was consequently entitled to its production, even though it related solely to the defendant's case, and so the defendant would not otherwise be bound to give any discovery /as to it. This decision was severely criticised by / Mr. Wigram (g), and perhaps it may now be pre- / sumed that the only use of the reference would be to I protect the defendant, where he admits a document \ in the plaintiff's hands to be such as stated in the V bill. In such case the plaintiff can make no use of the admission but as a whole, and he must, therefore, put in the document, and if there is any incorrectness in the statement the defendant will not be bound by it, and if the document is lost or destroyed, or not properly stamped and cannot be produced, the ad- mission cannot be used {h). But in view of the f decision in Hardman v. EUames, it might be safer to state, by way of defence, the effect of an instrument in the defendant's hands without the reference; and [ then the defendant will be at liberty to use it and I produce it or not, accordingly as he finds it necessary i to do so to protect himself against the plaintiff's claim. If he can make a good defence without it, (/) 2 M. & K. 732. (g) Wig. Disc. 295 et seq. j ante, p. 153 et seq., as to similar re- ference not incorporating deed with the bill. iji) Cox V. Allingham, Jacob, 337. ANSWERS AND PLEAS. 227 and there is any objection to its disdosure, he can Anmer. then waive the defence founded on it and keep it back (?). The answer must (as must a bill) often make Ground tor statements of facts for the purpose of obtaining in- inquiries to mi -o • 11 be stated. quines. Inus, it it sets up a settled account, even though not proved, an inquiry will be directed (J). So in the answer of a mortgagee in possession to a redemption suit, statements as to improvements, special exjjenses incurred in legal proceedings in defence of his mortgage, &c., will entitle him to in- quiries in taking the accounts, these not being in- cluded in the accounts ordinarily directed, and no special inquiries being directed unless ground is laid in the pleadings (A). The facts showing that de- fendant should not bear the costs should also be stated (Z), and for this purpose letters should often be set out. " A further answer is in every respect similar to Suppiementaa . p 1 (^ answers and and indeed is considered as forming part of the first answer to ° -^ ^ ^ amended bill, answer. So,, an answer to an amended bill is con- sidered as part of the answer to the original bill. Therefore, if the defendant, in a further answer or an answer to an amended bill, repeats anything ^con- tained in a former answer, the repetition, unless it varies the defence in point of substance, or is other- wise necessary or expedient, will be considered as impertinent" {m). The defendant cannot, after amend- (i) Wig. Disc. 303, 308, 314. (J) Connop V. Hayward, 1 Y. & C. C. C. 33. {k) Holloway v. Millard, 1 Mad. 414. (7) Mousley v. Carr, 4 Beav. 53. (ot) Red. 318. 228 ANSWERS AND PLEAS. ^•^^ - ment of the bill, be required to answer interrogatories already answered (Z), and " if a defendant is desirous of correcting, adding to, or explaining his answer after the same has been filed, he will not be permitted to amend, but must apply for liberty to file a supple- mental answer" (m). The Plea, we have seen, is a special answer resting the defence upon a single ground (w), in which the pleading proper and the discovery are separated, and take-the form of a plea and answer in support. That ground must, therefore, be set out with greater pre^ cision than is required in other pleadings (o), because, thereby the plaintiff is denied the discovery he other- wise would be entitled to as to the parts of the bill to- which the plea is a defence and which do not ralate to the matter of the plea. ' Thus, a piea of a former decree must formally set out- the proceedings in the suit, the pleadings, and the decree, so as to show that the sanje issues were determined as are raised in second suit (/>). If, how- ever, the plea be of a foreign judgment, it would be sufficient to state the proceedings and judgment, and to allege that the same matters and issues were in question in the cause (,q). And if the plea is ac- companied by an answer, it must specify to what {I) Drake ». Symes, 2 De G., F. & J. 81. (m) Smith's Ch. Pr. 334 ; Morg. Ch. Ord. 433. (m) As to what is a single ground and as to pleading double pleas, see Morg. Ch. Ord. 424. (o) Carew v. Johnstone, 2 Sch. & Lef. 280; 2 Atk. 632. (p) Red. 236, 237. ( j) Ricardo ». Garcias, 12 CI. & Fin. 397 et seq. ANSWERS AND PLEAS. 229 part of the relief or discovery it is applied (r) ; Piea. though the rule which holds good as to demurrers, that they cannot be good in part and bad in part, does not seem to hold with the same strictness in the case of a plea (s). But still a plea will be over- ruled if it intentionally cover more of the bill than by law it can cover {t). The new Orders only apply to accidental overlapping of the plea and answer («). In other respects, the rules as to the frame of an answer as a pleading, and an answer by way of dis- covery, apply to the plea and answer in support {v). But care must be taken to traverse or avoid all those things in the bill inconsistent with the matter of the plea, though it will be sufficient if, as to the aver- ments, they substantially and in general terms put fully in issue the charges to which they are op- posed (w). And it seems that the rule requiring averments, and an answer in support of a plea, tra- versing the allegations in the bill inconsistent with the plea, need only be substantially complied with. Thus, when the bill alleged that the testator was (r) Red. 291, 300. (*) Ibid., and Morg. Ch. Ord. 424. (i) Salmon v. Dean, 3 M. & G. 348; Hewitt v. Hewitt, 11 W. K. 849. (a) Dell V. Hale, 2 Y. & C. C. C. 1. (») Red. 279, 297,298,309; Beam. PI. 21, 22 ; and see Carleton f. Leighton, 3 Mer. 667; Jerrard v. Saunders, 2 Ves. jun. 187, 454; Hardman ii. EUames, 1 M. & K. 739 ; Pennington v. Beechey, 2 Sim. & Stu. 282, as to stating conclusions of law. The plea must be positive, but if it states as to the "information and belief" in re- spect of matters not in personal knowledge of defendant, it will be sufficient to put the matter in issue, Drew v. Drew, 2 Ves. & B. 159 ; Kirkman v. Andrews, 4 Beav. 558 ; but it must not be argumentative, Faulder v. Stuart, 11 Ves. 301, 302. (w) Wig. Disc. 186 ; Red. 244. 230 ANSWERS AND PLEAS, y Plea- seised at his death of considerable real property, and among such property were certain bouses mentioned j a plea which averred that the testator was not en- titled to any real estate at his decease, was held suf- ficient without averments or an answer specifically denying the testator's possession of the several houses. " The mere enumeration of the houses owned by the intestate was not such evidence of the statement [as to his possession of real property] as would require an answer in support of the plea" (m). It was only an amplification of the general statement. In a simple case, where a defence is not raised by plea, but the same defence is made by answer, the bill will be dismissed, but without costs (w); but the Court will not settle a doubtful legal title on a plea(io). Matter whkh I One thing is to be specially noted in both pleas does not goto j , . , , „ , i ■ i , gist 0/ Suit, /and answers : and that is, that matters oi law which how pleaded. I , . „ , . . ,, ' do not go to the gist ot the suit ought to be specially / pleaded. Thus, the Statute of Limitations, or the payment of a smaller sum before the stipulated time in discharge of a claim, do not concern the gist of a suit in respect of a claim, though they defeat it by subsequent matter (a;). It would not sufiice, accord- ingly, merely to deny the claim, but the claim must be admitted and this matter specially alleged in bar («/). So must be pleaded the Statute of Frauds, which makes a contract void unless in writing (2:). (b) Postgate V. Barnes, 9 Jnr., N. S. 456 ; 11 W. R. 356. (») Sanders v, Benson, 4 Beav. 350. (w) Rumbold ». Forteath, 2 Jur., N. S. 686 ; ante, pp. 97, 98. Ix) Mont. Eq. PI. 19. (y) Harrison v. Borwell, 10 Sim. 382 ; Moodie ». Bannister, 4 Drew. 432. (z) Holding v. Barton, 1 Sm. & G. App. xxv. ; Heys v. Astley, 12 W. R. 64, overruling Ridgway v, Wharton, 3 De G., M. & G. 677. I c ANSWERS AND PLEAS. . 231 And so a purchase for value without notice must be Anmer. specially pleaded (a). If, however, the bill upon the "\ face of it shows the facts from which the matter of | law is deducible, a general demurrer is sufficient, ) without expressly alluding to the matter of law {b). It is a common form to add to a defence by answer in answer^ of the Statute of Limitations or the Statute of Frauds, " and the defendant claims the same benefit of the statute oj said statute as if he had pleaded or demurred to the bill." The object of these words is to give notice of the defence to be made (c), (according to the rule as to all other defences) — as the simple denial of the claim, agreement, &c. (as we have said) does not put in issue such defence not relating to the gist of the claim, &c. That object would, however, be more simply attained by a mere claim of the benefit of the statutes without the concluding words. Indeed, those concluding words seem neither useful nor correct, for the defendant must answer the bill fully notwithstanding the words ; and all the benefit which he can have will be as a defence to the relief (and not to the discovery), and this he will have by virtue of its being an answer in bar or avoidance. In fact, the plea is only valuable as a special answer of the matter in bar or avoidance ((i). Where no answer has been required, and none has \ been put in, the Statute of Frauds may be pleaded 1 orally at the hearing (e), and so may the Statutes of / (a) Philips V. Philips, 10 W. R. 236. (A) Prance v. Sympson, 1 Kay, 678, as to Statute of Limitations ; and Wood v. Midgley, 23 L. J., Ch. 553, as to Statute of Frauds, (e) Harrison v. Borwell, 10 Sim. 382. (d) huU, Anal. Eq. PI. 360, 361. (e) Lincoln v. Wright, 5 Jur., N. S. 1142. 232 AfiBwer.j ANSWERS AND PLEAS. Limitations (/). But if any facts are necessary to make out the case under the statute, they must ap- pear by aflBdavit (g). In these cases the cause was brought in on motion for a decree, under which cir- cumstances an answer, if there had been one, would only have been considered as an aflBdavit. But perhaps there may be a difference allowed in cases where no answer having been put in, the plaintiff cannot be misled by relying on an answer in which the particular defence does not appear. At any rate, in Philips v. Philips (A), where an answer had been put in, giving no notice of a defence of a purchase for value without notice, the Court held that it could not be pleaded at the bar even on motion for a decree. (/) Snead v. Green, 10 W. R. 36. (g) Ibid. (A) 7 Jur., N. S. 1094; S. C. on app., 10 W. R. 236. ( 233 ) CHAPTER IX. AMENDED BILLS. When the defendant has put in his defence, the plaintiff has to consider whether he has, by his bill, put in issue sufficient facts to found a decree, whe- ther he can allege anything in avoidance of the defence, or otherwise inconsistent with it, and whe- ther he has asked for the relief to which he is, or will be able to show, himself entitled. The replication will put in issue the facts stated in Amended ^ , * till, when the answer or plea without any amendment of the necessaiy. bill introducing them, as pretences or otherwise, on the plaintiff's part (a) ; and if, therefore, such facts are directly disputed by the plaintiff, he can do so by the evidence, or if they come within the general allegations of the bill, or make out the matter of in- ducement stated in the bill, they will support the bill, and no alterations in the pleadings are required (fi). But if the allegations of the answer or plea can be] avoided by fresh matter on the plaintiff's part, such/ fresh matter must be alleged by him. And if the answer reveal a case which, though it is in the plaintiff's favour, differs from that made by the bill,\ he cannot adopt this case in whole or in part, or with i (a) The same result if the cause is heard on motion for a decree. But if it is heard on bill and answer, the answer is admitted to be true in all points. (6) Ante, p. 196 et seq. 234 AMENDED BILLS. ^\i ^ modifications, and have the rehef he is entitled to, without showing his right to such relief, and asking ^A' it on his own pleadings — and the reasons are obvious ^ — because (as we have before said) the defendant may have stated circumstances with a view to the fi A relief and case made by the bill, which he might ■r y materially qualify and add to, if the plaintiff were ' .J ^"j seeking other relief on a statement of those circum- ^':' stances; and, moreover, the decree must be founded -.' -^ 1. on the plaintiff's allegata, and finally dispose, upon »F \^ the face of the record, of the rights claimed upon the r\\V issues raised. In these last cases, then, an amend- V ment must be made in the bill to put the fresh matter in issue, or to make out a new case for relief (c). Amended When the amendment is made for the purpose of framed. putting in issue fresh matter in support of the allega- tions of the bill, and in answer and avoidance to those of the answer or plea, it is manifestly conve- nient to repeat the statements and charges of the bill to some extent,, to add the statements from the answer or plea, as pretences or as facts, and to allege the fresh matter in such a way as to show a clear and consistent claim upon the face of the amended bill, and make a complete record. And this the plaintiff may id) and ought, it seems (e), to do, though it has been held improper and impertinent to do more than to allege the fresh matter in the way a special replication would do (/). (c) Ante, p. 197. (d) Dan. 382. (e) Fitzpatrick v. Power, 1 Hag. 24; Morris v. Morris, Id. 378. (/) Willis V. Evans, 2 Ball & B. 225. :/^ AMENDED BILLS. 235 It may sometimes be usefvil to show upon the face Amendments of the record, that a defendant has not been careful fuiieramwer. in his answers. And in such a case it would seem that the amendment may charge by way of pretence ■ ' the insufficient answer of the defendant, and insist, ' f \ that if he would look into his accounts, &c., the facts , j' * ^ > would appear differently {g). Ordinarily, however, i\ _ r» ' the matter might be remedied by exceptions to the answer, or by the evidence; and, indeed, it may sometimes not be prudeut to inform the defendant beforehand as to which of his misstatements you intend, and are able to disprove. When the amendment is made for the purpose of how far ^ "^ frame of suit making a new case from the statements in the canbeaiterea ° ^ _ by araend- defence, either alone or together with new matter, it '"™'- is manifest that some of the former allegations, charges and prayers must sometimes be withdrawn or qualified, and that it will be necessary sub- stantially to frame a new bill, containing the whole case. And this leads to the remark, that the plaintiff will not be allowed to alter entirely the frame of his bill, even from the statements in the answer, without paying the costs to which the defendant has been put by the suit as at first constituted {li). This seems to be the true rule, though in some cases it has been stated that he will not be allowed at all to amend so as to alter the frame of the bill (i). And if this be the true rule, it is not of so much importance to in- quire what will be considered as an alteration of the (g) Seeley v. Boehm, 2 Mad. 170. An interrogatory may be founded on such amendment, Id. (A) Parker v. Nickson, 11 W. R.635 ; 2 N. R. 54. \i) Ibid. 236 AMENDED BILLS. Costs. Amendment to obtain benefit of admissions to original biil. frame of the suit ; because the plaintiff will, of course, so far as he can, frame his bill at the first as he means to continue it, and must take the consequences of his inability to state exactly the facts and divine the true remedy to which he is entitled. Amendments may, however, be sometimes made by striking out a portion of the bill, even a con- siderable and important portion, and the corre- sponding prayer, without rendering the plaintiff liable to pay the defendant the costs up to the amendment, where there is good cause shown and the conduct is not oppressive and vexatious (k). The reasonable- ness of these rules as to costs will appear, when it is considered, that the defendant will have been put to costs by the original suit, and if the cause had come to a hearing without amendment would have been entitled to a decree with costs; and he ought to be put in no worse position when an amendment is allowed, unless, from the fact of his being in the possession of documents, &c. relating to the matter and refusing information, the plaintiff is driven to some uncertainty in his pleadings, and yet has a good case, which he states with some approach to certainty and on some prima facie grounds (0- The advantage in the matter of costs is not the only advantage contended for in the case of amend- ments. Another object of amending a bill, instead of filing a new bill, is to obtain the benefit of the admissions in the answer to the original bill. These will be part of the pleadings, where the suit is amended, and will, together with the answer to the (k) Monck ti. Earl of Tankerville, 10 Sim. 284. (i) Ibid. AMENDED BILLS. 237 amended bill, form but one record {m) ; but they could only be used as evidence upon special order in a new suit (n). The difference, however, is not very great, as the defendant can, on proof of mistake or surprise, obtain leave to put in a supplemental answer (o). Another reason for amending a bill is Amendments often to avoid a bar under the Statute of Limitations, statute of ,-i . . , -. 1 1 1 '11 IP Limitations. as the original and amended bill only lorm one ^ record, and time must be calculated up to the filing V * -v of the original bill. One or two cases will show how a suit may be illustrations •' ^ of new cases launched at a venture, and the real case, very dif- made by ' 'J amended bill. ferent, be afterwards made by amendment. Thus, where the original bill prayed for a specific \ performance of an agreement, and the answer ad- mitted an agreement but different from that stated by the bill, the plaintifi" was permitted to amend by stating and relying on the agreement admitted (j?). J In another case the plaintiff filed his bill to set aside a deed of dissolution of partnership, and then by amendment sought to have the same deed enforced, and the Court did not dismiss the bill, but ordered the plaintiff to pay the costs of so much as he had abandoned {q). Again, where plaintiff filed a long bill seeking, amongst other things, partition of a close, and by amendment struck out all but that relating to the partition, the defendants having been put to con- (m) Dan. Ch. Pr. 694 ; Red. 318. (n) Dan. Ch. Pr. 828, 829. (o) Dan. Ch. Pr. 753 et seq. ; Morg. Ch. Ord. 433. ( p) Lynch v. Lindsay, 2 Sch. & Lef. 9 ; Willis v. Evans, 2 Ball 8e B. 225. (5) Mavor ». Dry, 2 Sim. & Stu. 113. 238 AMENDED BILLS. luustrations siderable expense in defending; the suit, Lord Henley of new cases ^ i/» i iij j made by Ordered that the order for amendment should stand, amended bill. but that the defendant should pay five pounds by way of penalty beyond the sum of twenty shillings mentioned in the order (r). And where the bill prayed an account against the defendant as his bailiff or agent in respect of certain farms, and was afterwards amended and converted into a bill stating a mortgage and praying a fore- closure against the defendant. Lord Eldon held, that the defendant was entitled to all costs sustained by him beyond what he would have been put to had the bill been originally framed as amended (s). In Allen v. Spring (t), the bill " was for an account against a person in possession of the property, alleging that he was in possession as mortgagee, and asking that the accounts might be taken of what, if anything, was due to him, but saying that he had been wholly paid off, and in fact held the property as a trustee for the plaintiff. The defendant put in an answer, by which he said the mortgage had been paid off, but that he held the property as absolute owner under conveyances from the plaintiff and the other co-heirs. On this the plaintiff amended her bill, and asked an account and delivery of the pro- perty; she still alleged that the defendant was in possession, but in another way, viz., under a deed which was fraudulent and void," and prayed an account of the rent and a reconveyance, &c. It was held, that this was not a mere fishing bill, framed for (r) Dent v. Wardel, 1 Dick. 339. (s) Smith V. Smith, Cooper, li\. (0 22 Beav. 617, 618. AMENBED BILLS. 239 the purpose of discovering a case, perhaps totally luustrations J-/T- : 1 • , 1 ? • .1 , , ofnewcases ditierent, to be introduced in the amendment, and made by T_ 1 p 1 • 1 1 • Tr^ amended bill, that there was no reason for making the plaintiff pay the whole of the costs incurred up to the amendment; and though the Master of the Rolls said (m), that the rule was, that a " plaintiff cannot file a bill for one purpose and then by amendment turn it into a bill for a totally opposite purpose ; thus, a person cannot file a bill to set aside a deed, and then by amend- ment turn it into a bill to execute the trusts of the same deed;" yet, as was said in Parker v. Nickson, it is evident firom the mention of costs, that all he meant was, that a plaintiff cannot change the frame of his suit without being liable to such penalty (as to costs) as was imposed in Mavor v. Dry. Another case ( x) in which no costs were imposed was that of a bill for a foreclosure of a mortgage, and for a transfer of a sum of stock, and on the answer being filed, disclosures were made which rendered it advisable to strike out all that related to the mortgage, whereby nearly one-half of the bill and answer were rendered useless. The costs, however, occasioned by the parts struck out were small, and there was sn&cient prima facie cause for framing the bill as it first stood, whilst, from the documents being in the defendant's possession, it was impossible to frame the bill aright at first. And, in the above case of Parker V. Nickson (^), the bill alleged that the defendant had, by means of misrepresentation, obtained probate of a will and codicil, and prayed that he might be («) Allen V. Spring, 22 Beav. 617. (i) Monck V. Eari of Tankerville, 10 Sim. 284. (j) 11 W. R. 635. 240 AMENDED BILLS. restrained from selling under the codicil; and the amendment (after demurrer) alleged, that the codicil- was not the testamentary disposition of the testator, and prayed an issue devisavit vel non, and, if it should be shown that the bill was invalid as to real estate, that the plaintiff might have the relief pi-ayed by the original bill : and the Vice-Chancellor held, that, by reason of the demurrer, the defendant had got the redress he required as to costs, and the amendment was allowed. Alternative If howcver, au amendment is made by adopting relief accord- ' ' . . ing to original the Statements of the answer, the plaintiff cannot or amended ^ ^ _ ' ^ ^ *>'"• claim in the alternative for relief, according to the original case, or, if that fails, according to the case as qualified by the answer and the consequent amendments (z). This seems, indeed, to follow from what has before been said about bills asking relief on two inconsistent states of fact (a). Bills of dis- In the matter of discovery the rule was somewhat covery. more stringent. It was held, that a bill for discovery could not be turned into a bill for rehef also, or a bill for relief into a bill for discovery only (b). It used once (it has been said) to be the practice to pi'ay discovery only (so as to avoid a demurrer for want of equity, which, if allowed, would also have precluded the title to the discovery), in order to find out what was the particular relief to which the plain- tiff was really entitled, and then to add a prayer for («) Lindsay v. Lynch, 2 Sch. & Lef. 1 ; Lord Ormondt). Anderson, 2 Ball & B. 369. See further as to what amendments allowed, Allen V. Spring, 22 Beav. 618, n. (a) Ante, pp. 79, 171. ) Dan. 383—385. AMENDED BILLS. 241 such relief by amendment; but this practice has Biusofms- been long discontinued (c). At any rate, it is said, the only result of an attempt to adopt this course would be, that the plaintiff would be saddled with the costs of the suit for discovery, as he would be if the suit had gone no further, and the defendant would be entitled to put in a new answer adapted to the new form given to the proceeding {d), and thus the plaintiff would be in little better position than if he had filed a new bill for relief. He certainly would not be in a worse position in respect of costs : and as to the answer, there seems no ground for considering the defendant to be more embarrassed or prejudiced by being called upon to put in an answer to a mere bill of discovery, which afterwards is used with reference to an amended bill asking relief, than when he has first of all to answer to a bill for relief different to that subsequently sought. In fact, if the relief to be sought is misrepresented, the defendant will be more likely to be surprised and prejudiced, than if the relief is only concealed. In most cases, where a plaintiff can state an equity to a discovery, he can state some equity to relief, to which the discovery shall be pertinent (unless his remedy is at law, in which case there will be no, question of an amendment asking relief) ; and there- fore, practically, the defendant gains little by the rule. Upon the whole, it may be thought that there is little more reason for a more stringent rule in cases of bills of discovery, than in cases of bills for relief, different to that ultimately sought by an (c) Red. 184, n. («) ; Dan. 383. (d) Dan. 383—385. 242 AMENDED BILLS. amendment. The later cases of Severn v. Fletcher (e) and Parker v. Ford {f) seem inconsistent with one another, and do not consequently settle the matter ; the latter case ruling that in no case, before or after answer, can a prayer for relief be added. Events mb-l Amendments of bills could only, as a rule, formerly sequent to I "^ , origiiiidbmJ be made where the matter to be added had arisen \ prior to the filing of the bill. But if matter sub- sequent to the filing of the bill was material to the defendant's case, he was bound to put it into his answer, and in such case the plaintiff might introduce subsequent matters to meet it by amendment of his bill (ff). And where the bill was amended before issue joined, matters subsequent to the original bill might be incorporated (h). Now, however, new matter, arising at any time before amendment, may be introduced (i). Amendments may be made after pleas and demurrers have been filed, and the matter of the plea may be incorporated and qualified. Plea to Where a plea is filed to an amended bill, the answer to the original bill may be used to counter- plead the plea and any averments in it (A). But unless the amendment varies substantially the case made by the original bill, or the defendant can show that some material fact came to his knowledge after filing an answer to the original bill, a plea to the amended bill will be overruled by such answer (Z). (e) 5 Sim. 457. (/) 1 Coll., N. C. 506, (g) Knight V. Matthews, 1 Madd. 566. (A) Ferguson v. Fatten, Hayes, 328. (t) 15 & 16 Vict c. 86, B. 53. {k) 2 Atk. 155 ; Red. 299, 304. (I) Morg. Ch. Ord. 428. AMENDED BILLS. 243 Where the plaintiiF has an inchoate title, as, for inchoate uue , . 1 1 -n -I completed by instance, as executor not having proved the will, the amendment. facts completing his title may be added by amend- ment : but such amendment would not formerly have been allowed where the plaintiff's right depended entirely upon such fact (m), though they may perhaps now be permitted under the 15 & 16 Vict. c. 86, s. 53. Further answers, and answers to an amended biir,\Answer8 to are considered as part of the original answer, and \ must repeat nothing contained in the first answer, - unless the repetition varies the defence in point of substance, or is otherwise necessary or expedient, or \ unless the amended bill makes a new case to which ^ a defence must be made (n). It is not our province to enter further here upon an inquiry when and how amendments may be made. Sufficient will have been said to enable the reader to understand the following remarks. Provided the draftsman complies with the rules as whatsiumid . ., /.T • 11 be in original to partieumrity, it is a matter ot discretion whether em and what • 1 • • • 1 1 -11 • 11 f^"" he sets out in his original bill more minutely the Amenoment. details of his case. The exact facts of a case are often unknown to a where patti- !••/¥. 11 * 1 T 11 culare are plaintiff; and then it may be expedient that he unknown, r ' ... should plead should plead "loosely," as it is called, that is, should loeseiy atarst. state his case as generally as will be permitted ; for then the defendant may make admissions or state- ments which, if he knew how ignorant the plaintiff was, or the way in which he thought to substantiate his case, would not be made : and by means of these admissions and statements the plaintiff may, with (m) Dan. 380, 381. («) Id. 751. M 2 244 AMENDED BILLS. ^i^^tii other facts in his possession, establish an equity in Bo^. ^^ amended bill. whereparti- Moreover, even when the plaintiff knows accu- culars known, ' '^ prolixity to rately the facts, it will often be considered prolix to be avoided in •' ' '^ original bill, state them fiilly at first. Thus, where delay or vexa- tious proceedings on the defendant's part are alleged, and a correspondence is adduced in support, it would be prolix to set out the letters at length — a general reference to them will be most proper at first, and if the defendant denies the fact, they may be set out sufficiently in an amended bill. So if a deed is relied on, its legal effect should be given, unless a particular clause in it is relied on, and if the defend- ant claims the benefit of a particular part the whole may be stated by amendment. When matter On the other hand, where it is feared a plea may atiiratto be filed, and the plaintiff can state any facts incon- sistent with the plea as a matter of law, or qualifyii^, adding to or explaining the fact set up by the plea, he should do so ; because he would otherwise have to bear the costs up to the amendment by which this matter was brought forward, if the plea should be sustained on facts exactly as alleged. Thus, where a plea is of the Statute of Limitations, letters or con- versations which take the case out of the statute ought to be stated on the plaintiff's part (o) to avoid the legal effect of the matter of the plea; and as a question affecting the costs they ought to be in the original bill. And so equitable matter in avoidance should sometimes be alleged. But if the facts are only inconsistent with the plea as a matter of. fact, (o) O'Haia 1). Creagh, L. & T. 65, Ir. Eq. Rep. 179. avoid plea. AMENDED BILLS. 243 they need not be stated, because they can be adduced wm simuia as evidence on the trial of the truth of the plea, though mi, ^c it may save the expense of proofs, prevent a plea, and expedite the proceedings, to state such facts, and force the defendant to answer on oath as to them at once. But the prudence of this course will depend on like considerations as apply to the determining whether any other details of the case should be mentioned. In other cases, where letters are intended to be costs— 1 • r 1 1 • Letters. read on a question of costs, they must be put in issue, as otherwise the defendant has no opportunity of reading them(p), and this should be done by a reference to them in the original bill, or the plaintiff must bear the costs of the amendment for the pur- pose of putting them in issue. Where the plaintiff has no doubt of the facts of wicrc proof . 1 1 /. 1 1 • 1 •!• °^ details the case, but is doubtful as to his ability to prove aoubtfui, ' . T ■ 1 1 Should plead them, it may yet be sometimes advisable to state looseiyat them as generally as possible at first, lest the de- fendant should try to dispute them. If he does not know accurately how the plaintiff means to make out his case, he may then be found making admissions which he cannot retract, and so be debarred from disputing the case. The bill can then be amended by stating the facts so admitted together with others which can be proved, and the defendant will find himself obhged to admit the case and save the plain- tiff the trouble and expense of proof. But if besides having no doubt of the facts of the case, the plaintiff is sure of being able to prove them, it may save time (p) Whitley v. Martin, 3 Beav. 22f5, sed quaere now, ante, pp. 120—122, U9, 150. 246 AMENDED BILLS. Final record should con- tain full and strong state- ment. ynatsimuM and expense to state them fully at once, and inten'o- Ite in original ' /» n ^«'". «*» • gate closely to them, so as to obtain a full answer admitting them. And in all cases the final record should contain, on the plaintiff's part, a full and strong statement of his case, where he has a strong case. Thus, where he has clearly suffered from wrong or fraud this should clearly appear, and the Courts will incline to secure him redress, even though mistakes or techni-- calities stand in the way. For it has been said, Ijhat "A Court of .Equity ought not for form's sake to do a great injustice" (q). (gr) 1 Ves. 247. ( 247 ) CHAPTER X. DEMURRERS. A DEMURRER takes issue upon the claims to relief ?'''"™ »' ' * demurrer. or discovery upon which the bill relies, or to the form or mode in which they are made. It admits (for the purposes of the demurrer), all the facts well pleaded in the bill, or the part of the bill to which it applies ; but says that the bill, or that part of the bill, makes no valid claim in equity, or has not made it properly according to the practice and rules of the Court. It does not, therefore, admit any of the con- i elusions of law charged in the bill. Nor does it ad- mit, as facts, things which are not positively alleged. Nor, again, does it waive objections to the allegations which are too vague, or otherwise not properly made; but, on the contrary, it may rely upon such imper- fections as grounds for showing that the plaintiff has not made a conclusive title to relief, or shown what particular relief he is entitled to. It relies only upon \ what appears upon the face of the bill; and cannot I allege any other matter, or deny any fact in the bill / — that would be a " speaking demurrer." It will be the first care then of the defendant to scan the bill, and see whether there is any objection on the face of it ; and whether, if there be, he ought to demur. Matters of form will first claim attention. Non- compliance with the regular forms, — e. g., if a bill of 248 DEMUHRERS. L^ects in maiter of Form. Must be raiaed by de- mun'er. When may be waived. May be matter of substance also. revivor instead of an original or supplemental bill, or a supplemental bill instead of an amended bill, has been filed, or vice versa ; or if there is a want of a proper description of parties and their places of abode, or the absence of a proper affidavit required by the Court in certain, cases ; or if the allegations of the bill are improper in respect of positiveness and certainty, or there is no such proper offer to do equity, &c., as the rules of the Court require, — all such things are defects in form, and, as a general rule, must be taken advantage of by demurrer ; for if the cause comes to a hearing without any in- convenience arising from the irregularity, the Court will either consider it as waived, or, if necessary, ■will allow the plaintiff some means of remedying the defect, and putting the matter rightly before the Court (a). Still, it may not be worth the defendant's while to demur on the ground of a mere formal objection, where the plaintiff can, instead of setting down the demurrer for argument, at once amend or otherwise remove the objection, without materially altering the relations of the parties in the suit; for the only result would be to cause the plaintiff vexation or costs and to procure a little delay. And, indeed, the Courts do not favour demurrers on technical grounds, which evince an intention to avoid the merits of the case (6). Sometimes, however, these matters of form may be matters of substance also. Thus, where a bill of revivor is filed instead of an original bill, a plea of (a) Red. 206, 207 ; Dan. Ch. Pr. 517 ; Story, Eq. PI. §§ 453, 528; Mutter V. Chauvel, 5 Russ. 42 ; Stuart v, Burrowes, 1 Dru. 275. (4) Bart. Suit in Eq. p. 113, n.(2). DEMURRERS. 249 the Statute of Limitations might be avoided, unless btfauin , J ° matter of by a demurrer the plamtifF were forced to resort to Po"n- an original bill. Again, if the bill is vague or am- when affects biguous, and yet. the defendant well knows what it sSom^b?™* means, and that the plaintiff can state the matter demra». with certainty, and will do so directly the objection is stated, nothing will be gained by a demurrer in respect of the ultimate success of the suit — only delay and costs will be inflicted on the plaintiff. But in cases where the allegations are very vague, and no certain or definite case is made at all, but it is evident that the d efendant is trying to find a case, . Longden, 8 Ves. 2 ; Todd v. Gee, 17 Ves. 273 ; Dell v. Hale, 2 Y. & C. C. C. 3, 4. (A) Red. 184. ( 257 ) ADDENDUM. (Pages 190-192.) It may be useful to point out a distinction which may reconcile some of the cases on the subject of " inquiries." It is that an inquiry as to wilful de- faults, and any inquiry implying a breach of duty, involves, as we have said, a previous decision by the Court that a primS. facie case of breach of duty has been shown. Now breach of duty is a question of law, and therefore some facts or fact must be stated and proved justifying the conclusion of law. If the evidence on the point is conflicting, the Court may order a preliminary inquiry into the particular stated, and on the case coming back into Court, if the par- ticular has been proved before the chief clerk, a general inquiry may then be directed as to wilful defaults (a). But if an inquiry is sought not in- volving a question as to a breach of duty or other matter of law, but into facts, the facts may be stated in as general a way as facts advanced for other relief. Thus a mortgagee may claim, in a general way, to have laid out considerable sums in repairs and im- provements (6), or that there were costs, charges and expenses properly incurred in defending the title (c). (a) See cases, note (g), p. 191, and Sleight v, Lawson, 3 K, & J. 298. (i) Sandon i>. Hooper, 6 Beav. 248. (c) Merriman v. Bonney, 12 W. R. 461. 258 ADDENDUM. But he will not be allowed the inquiry unless there are some proofs of his allegation {d), which need not, however, it seems, be particular (e). The passage at p. 192, as to the " statement and proof of particular instances" of deterioration and dilapidation, must be understood to refer merely to the necessity of giving the facts sufficiently to show the nature of the case for the particular relief sought, viz. inquiry. The passage at the same page, as to a decree in a re- demption suit being " in the usual form, directing an account of and allowances for such repairs, &c.," is inconsistent with the general rules, before referred to, as to the necessity for laying a foundation for in- quiries. The authority quoted — Powell v. Trotter — referred to the usual accounts in favour of a mort- gagee who has laid such grounds as by the answer the mortgagee in that case had done, and the passage must be corrected. (d) Enowles v. Spence, Mob. 226; Sandon v. Hooper, supra. (e) Ibid. APPENDIX. BILLS. It is provided by the Consolidated Order IX. r. 2, that Bills may be in the following form. Bill for Forechswre of a Mortgage of Freeholds — Injunction mortgages, to restrain Waste by the Mortgagor. In Chancery. Between John Lee Plaintiff, and James Styles and . .1 r, j- j . Henky Jones. . . .\ Defendants. Bill or Complaint. To the Eight Honorable John Baron Campbell, of Saint Andrew's, in the County of Fife, Lord High Chancellor of Great Britain, Humbly complaining, sheweth unto his Lordship John Lee, of Bedford Square, in the County of Middlesex, Esquire, the above-named Plaintiff, as follows : — 1. The Defendant James Styles, being seised in fee simple of sejain of a farm called Blackacre, in the parish of A., in the county of mortgagor, B., with the appurtenances, did by an Indenture dated the 1st ^ge™""*' of May, 1850, and made between the Defendant James Styles of the one part and the Plaintiff of the other part, grant and convey the said farm with the appurtenances unto and to the use of the Plaintiff, his heirs and assigns, subject to a proviso for redemption thereof in case the Defendant James Styles, his heirs, executors, administrators or assigns, should on the 1st of May, 1851, pay to the Plaintiff, his executors, adminis- trators or assigns, the sum of £5,000, with interest thereon at the rate of £5 per centum per annum, as by the said Indenture will appear. 2. The whole of the said sum of £5,000, together with in- Debt stm terest thereon at the rate aforesaid, is now due to the Plaintiff. *"^- 260 APPENDIX. Mortgagei. Second mortgage. Applications for payment. 3. The Defendant Henry Jones claims to have Borae charge upon the farm and premises comprised in the said Indenture of Mortgage of the 1st of May, 1850, which charge is subse- quent to the Plaintiff's said mortgage. 4. The Plaintiff has frequently applied to the Defendants James Styles and Henry Jones, and required them either to pay the said debt, or else to release the equity of redemption of the premises, but they have refused bo to do. Pretence oj 5. The Defendants James Styles and Henry Jones pretend other ciiarges. that there are some other mortgages, charges or incumbrances affecting the premises, but they refuse to discover the par- ticulars thereof. Intended ^- There are divers valuable oak, elm and other timber, and waste. timber-like trees, growing and standing on the ferm and lands comprised in the said Indenture of Mortgage of the Ist of May, 1850, which trees and timber are a material part of the Plaintiff's said security ; and if the same or any of them were felled and taken away, the said mortgaged premises would be an insufficient security to the Plaintiff for the money due thereon. 7. The Defendant James Sidles, who is in possession of the said farm, has marked for fellmg a large quantity of the said oak and elm trees and other timber, and he has, by handbills, published on the 2nd of December instant, announced the same for sale, and he threatens and intends forthwith to cut down and dispose of a considerable quantity of the said trees and timber on the said farm. Prayer. The Plaintiff prays as follows : — 1. That an account may be taken of what is due for principal and interest on the said mort- That the Defendants James Styles and Henry Jones may be decreed to pay to the Plaintiff the amount which shaU be so found due, together with his costs of this suit, by a short day to be appointed for that purpose, or, in default thereof, that the Defendants James Styles and Henry Jones, and all per- sons claiming under them, may be abso- lutely foreclosed of all right and equity of redemption in or to the said mortgaged premises. That the Defendant James Styles may be restrained by the Injunction of this Honor- BILLS. 261 able Court from felling, cutting or disposing Mortgage- of any of the timber or timber-like trees now standing or growing in or upon the said farm and premises comprised in the said Indenture of Mortgage, or any part thereof. 4. That the Plaintiff may have such further or other relief as the nature of the case may reqmre. The Defendants to this BUI of Complaint are — James Styles, Henry Jones. Y. Y. {name of Counsel.) Note. — This Bill is filed by Messrs. A. B. and C. D. of Lincoln's Inn, in the County of Middlesex, Solicitors for the above-named Plaintiff. II. Bill hy Mortgagor against Mortgagee in Possession for Redemp- tion of Mortgaged Freeholds, imth Charges as to Deteriora- tion, Dilapidation, and vexaHovs Delays on the part of the Mortgagee. In Chanceey. Lord Chancellor. Vice-Chancellor . Between A. B Plaintiff, and CD Defendant. Bill or Complaint. To the Right Honorable Eichaed Baron West- BITEY, of Westbury, in the County of Wilts, LoED High Chancellor op Great Britain, Humbly complaining, sheweth, &c. : — 1. By an Indenture dated the of , and made be- Mortgage. tween the Plaintiff of the one part and the Defendant of the other part, all [parcels'], with the appurtenances, were granted and assured by the Plaintiff unto and to the use of the De- 262 APPENDIX. Mortgages. fendant and his heirs subject to a proviso for redemption thereof on payment by the Plaintiff, his heirs, executors, ad- ministrators or assigns to the Defendant, his executors, aidmi- nistrators or assigns, on the of -, of the sum of & , with interest thereon after the rate of £5 per centum per annum ; and in the said Indenture it was agreed that, unless the said sum of & — ■— and interest should be paid on the said of , the Plaintiff should pay interest on the said sum of £ , or on so much thereof as should for the time being remain unpaid, half-yearly on the of and the of in every year at the rate of £5 per centum per annum. The said Indenture contained a power of sale by the De- fendant, his heirs and assigns. 2. Default was made in payment of the said principal sum of £ on the of , but the interest thereon after the rate aforesaid has been duly paid as and when the same became due and payable under the said Indenture up to the 25th of March, 186—. 3. On the 1st of April, 186 — , the Defendant obtained pos- session of the said mortgaged premises, and has ever since continued in possession and in receipt of the rents and profits of the said premises. 4. At the date of the said mortgage the said premises were in the tenancy and occupation of one J. C. under a lease for a term of twenty-one years, which is not yet expired. In the said lease is a covenant by the said J. C. that the said J. C, his executors, administrators and assigns, shall keep the said premises in substantial repair during the said term, and a proviso for re-entry by the lessor, his heirs and assigns, on non-performance of the said covenant. The said J. C, how- ever, has not kept the said premises in substantial repair, but since the said 1st of April, 186 — , has allowed them to become very much dilapidated, and the Defendant has not enforced the said covenant and has not repaired the said premises. Deterioration 5. The Defendant has several times advertised the said by repeatedly premises for sale by auction, but has not further proceeded ^ering (or ^ g^^j^ g^g^ ^^^ ^jjjg gjjj^ premises have been thereby very much deteriora;ted in marketable value ; and the Defendant has lately again advertised the said premises for sale by public auction on the of next, and threatens to proceed with the said sale ; but the Plaintiff charges that, by reason of the dilapidation and deterioration aforesaid, a sale of the premises at this time would be very injurious to the Plaintiff's intefeste and ought to be restrained. Charges as to 6. The Plaintiff charges that the damages sustained by the damages. said Plaintiff by reason of the said dilapidation and dete- Default of payment. Entry by mortgagee. Dilapidation. BILLS. 263 rioration of the said mortgaged premises ought to be ascer- Mortgages. tained and charged against the Defendant in taking his accounts as mortgagee in possession. 7. The rents and profits of the said premises are and have Bents cxceca- always been greatly more than sufficient to satisfy the interest ^« interest- on the said mortgage debt, and the Plaintiff charges that the ^^'^ "''^^'s- accounts of the rents and profits of the said premises ought to be taken against the Defendant with yearly rests. 8. On or about the of , 186—, the Plaintiff wrote offer to pay, and sent a letter to the Defendant asking for an account of the f * demand amount due to the Defendant upon the secui-ity of the said '""^ '"<"'"°'=- mortgage, and informing the Defendant that he, the Plaintiff, would pay off and discharge the said amount on the of then next ensuing. 10. In answer to the last-mentioned letter the Defendant Correspond- wrote and sent a letter dated the of , promising ^™<'- to render the said account in a few days, but the Defendant did not do so, and the Plaintiff again applied to the Defendant by letter for such accounts, and a long correspondence by letters ensued between the Plaintiff and Defendant relative to the said accounts, in which the Defendant assigned fi-om time to time divers insufficient reasons for not furnishing the said accounts, and ultimately on the of the Defendant at length sent to the Plaintiff some accounts pm-porting to be the said promised accounts. 11. By the said accounts so furnished it appeared that a improper sum of £ was due to the Defendant for principal and accounts. interest upon his said security. The said accounts, however, so furnished by the Defendant claim interest upon the said principal sum at the rate of £5 per centum per annum, instead of at the rate of £4 : 10s. per centum per annum, as by the said Indenture is fixed, and in other respects the said accounts are false and incorrect. 12. The Plaintiff however, on the of , caused a Drait recon- draft reconveyance of the premises to be sent to Messrs. , ™y™™ sent who then were and now are the solicitors acting for the De- jected to. fendant in the matter of the said mortgage, for their perusal on behalf of the Defendant. The said draft was retained by the said solicitors, and no objection thereto has been taken by them or the Defendant. 13. The Plaintiff caused the reconveyance, the draft of Tender of which had so been sent to the Defendant, to be engrossed, and ™™of re"°jj. on the said of the Plaintiff went to the house of the veyance. Defendant and tendered to him the sum of £ in satis- faction and discharge of the amount due upon the said security, and also tendered to him for execution the said reconveyance, 264 Mortgaget. Charges of vexatious conduct. As to docu- ments. Oflerto redeem. APPENDIX. but the Plaintiff refused to accept the said sum of £ in such satisfaction and discharge, or to execute the said recon- veyance. The said sum of £ was more than sufficient to satisfy and discharge the amount then due upon the security aforesaid. 14. The Plaintiff charges that the conduct of the Defendant has been vexatious and oppressive, and the Defendant ought, vmder the circumstances, to bear the costs of this suit. 15. The Defendant has in his possession aU the documents relating to the said mortgaged premises, to the custody whereof the Plaintiff is justly entitled on satisfying the just claims of the Defendant. 16. The Plaintiff offers to redeem the said Defendant. Prayer. The Plaintiff prays as follows : — 1. That an account may be taken, under the direction of this Honorable Court, of what is due to the Defendant for principal and interest under the said mortgage of the of , and for his costs in respect thereof, such costs to be taxed. 2. That an account may be taken, with yearly rests, of rents and profits of the premises comprised in the said mortgage received by the Defendant, or by any other person or persons by his order or for his use, or which without his wilful default might have been so received. 3. That an inquiry may be made whether the mortgaged premises have been deteriorated or depreciated in value by the Defendant, by allowing the same to become dilapidated and by repeatedly advertising the same for sale, to any and to what extent, and that what shall appear to be due to the Plaintiff in taking the accounts of rents and profits, and in respect of such deterioration and depre- ciation, be deducted from or set off against what shall appear due to the Defendant for principal, interest and costs, and that the balance (if any) in favour of the Plaintiff may be ordered to be paid by the Defendant to the Plaintiff. 4. That it may be directed by this Honorable Ck)nrt that, upon the Plaintiff paying to the BILLS. 265 Defendant the sum (if any) which shall be Mortgages. found due to him for principal, interest and costs as aforesaid after such deductions as aforesaid, within such period as this Court may appoint, at such time the Defendant shall reconvey the said mortgaged premises free and clear of and from all incumbrances done by him or by any person claiming by, from, through or under him, and deliver up all deeds and writings in his or their cus- tody or power relating thereto, upon oath, to the PlaintifiF or as he shall direct. 5. That the Defendant may be restrained by the Injunction of this Honorable Court from farther proceeding in the said sale of the said mortgaged premises so proposed to be made by him as aforesaid, and from adver- tising or otherwise offering or threatening to sell the same, and from selling the same. 6. That all proper accounts, inquiries and di- rections may be had, made and given. 7. That the Defendant may be ordered to pay the costs of this suit. 8. That the Plaintiff may have such further, &c. III. Bill by BanJc entitled to an Equitable Mortgage for a Sum due on Bill of Exchange and for further Advances, claiming Priority/ over a subsequent Legal Mortgagee, for Foreclosure, and to be allowed to redeem if part of the Charge not entitled to Priority. Between P. (one of the registered public^v officers of and for and on be- {plaintiffs; half of the Banking Com- j •" ' pany), Q. and E ) and A. and B Defendants. Humbly complaining shew, &c., P. of , one of the regis- tered &c. of the Banking Company carrying on business at , Q. of andB. of , the above-named Plaintiffs, as follows : — [The title, <&c., would, if the company were an incorporated company, run thus : — " Between The Company (Eegis- L. N. 266 APPENDIX. Mortgages. Description of pliLlntifis. Equitable mortgage. Registiy of memoran- dum. tered) [or (Limited)], Plaintiffs, &c. Humbly complaining shew, &c. The Company (Eegistered) [or (Limited)], carrying on business at ."] 1. The Plaintiffs are the trustees of the Banking Com- pany, and the Defendant A. is a , carrying on business at , in the county of Middlesex. 2. The said Banking Company, at the time of the trans- actions hereinafter mentioned, had a branch bank at aforesaid, and then was the manager of the said branch. 3. On or about the of , the Defendant A. applied to the said for a loan from the said banking company, and it was agreed that the said banking company should advance certain sums to the Defendant A. on haying the same secured in manner hereinafter mentioned. 4. On or about the of the said company accord- ingly advanced to the Defendant A. the sum of £ , and the said Defendant gave to the said . , on behalf of the said company, a bill of exchange dated the of , and drawn by and accepted by the said Defendant A. for the sum of £ , payable at three months after date, and at the same time the said Defendant deposited with the said , as such manager as aforesaid for and on behalf of the said com- pany, the title deeds, evidences and writings relating to a certain messuage and hereditaments hereinafter described, and executed a memorandum as follows : — " ,3rd of ,186 . " Gentlemen, — In consideration of your this day advancing " me the sum of £ , being the same sum as is secured by " a bin of exchange bearing even date herewith, drawn by " Mr. and accepted by me, payable three months after " date, and as a further security for the payment thereof with " interest, I hereby deposit in your hands the deeds, evidences " and writings relating to \jparceU] ; and I hereby undertake, " whenever called upon, to execute a mortgage of the said " piece of ground, with power of sale to such person or persons " as you shall direct, or execute any other document at my own " expense which you may deem requisite for the better securing " the said amount, or any sum or sums of money which may at " any time hereafter be advanced by you to me, or be owing " by me to you for principal, interest and costs. " I am. Gentlemen, yours obediently, "A. " To the directors of the banking company, ." 5. The said memorandum was, on the of , duly registered according to law in the oflBlce for the public re- BILLS. 267 gistering of deeds, conveyances, wills and other incumbrances, Mortgages. for the county of Middlesex. 6. The said company by their said manager afterwards made rurthcr nd- several advances to the Defendant A. beyond the said sum of ""^'^ ^'"i- £ , and on the of the said further advances ^egaTmort-"' amounted in the whole to the sum of £ . At the several ease. dates of the said further advances the Plaintiffs had no notice of the alleged mortgage of the of hereinafter men- tioned. 7. Default was made by the Defendant A. in payment of Default of the said bill when the same became due, and the said bUl i»«™eiit. was fi-om time to time renewed by the said company by their said manager, and the last of the said renewals became due on the of , and has not been paid by the said De- fendant A. 8. The Defendant B. pretends that, on or about the of Pretence of , the said messuage and premises were assured to him the ^'""J"* ''""' said B. and his heirs by the said A., subject to a proviso for ""^ ^^^' redemption of the same on payment by the said Defendant. A., his heirs, executors, administrators and assigns, to the said B., his executors, administrators or assigns, of the sum of £ and interest. 9. The said deeds, evidences and writings so deposited' as Neglect of aforesaid with the Plaintiffs include an Indenture dated the second mort- of , under and by virtue of which the said lands ^Z^'^ were assured to and vested in the Defendant A. ; and the said B., at the time he procured the said mortgage of the of , neglected to call for the said deeds : and the Plaintiffs charge of charge that, under the circumstances, the Defendant B., at the notice, actnai date of the said mortgage (if any) of the of , ought ?lve,'^y t'JS' to be deemed to have had notice, and they allege that he had, mortgagee. at the date last aforesaid, actual notice of the said memorandum and deposit of deeds hereinbefore mentioned, and they claim to be allowed priority, in respect of the said debt of £ and the said ftirther advances secured by the said memo- randum and deposit, over the said alleged mortgage. 10. The Plaintiffs hereby offer to deliver up the said bills of- exchange to such persons and upon such terms as the Court may direct. Prayer. The Plaintiffs pray as follows ; — 1. That it maybe declared whether the Plaintiffs are entitled under and by virtue of the said memorandum and deposit to a charge upon n2 268 APPENDIX. Mortgage t. the premises for the said sum of & and the said ftirther advances, or which of them, in priority to the alleged mortgage of the Defendant B. of the of . 2. That an account may be taken upon the foot- ing of the said declaration of what is due to the Plaintiffs for principal, interest and costs upon the security of the premises in priority to the said mortgage of the Defendant B., and that the Defendant B. may be decreed to pay the same to the Plaintiffs within a short day, or in default the Defendant B. may be foreclosed all right or equity of re- demption in the premises, and may be or- dered to assign his said security and convey the premises to the Plaintiffs free from such right or equity of redemption. 3. If this Honorable Court shall declare that the said mortgage of the Defendant B. is enti- tled to priority over the said charge of the Plaintiffs upon the premises for any part of the said sum and further advances, that an account may be taken of what is due to the Defendant B. for principal, interest and costs under and by virtue of his said mort- gage, and of what (if anything) the De- fendant B. shall have paid to the Plaintiffs to redeem them as aforesaid, together with interest thereon, and that upon the Plain- tiffs paying the sum so found due to the Defendant B., the said Defendant be decreed to convey the said premises and deliver up all deeds, evidences and writings relating thereto to the Plaintiffs. 4. That an account may be taken of what is due to the Plaintiffs upon the security of the said memorandum and deposit, and that the De- fendant A. be decreed to pay to the Plain- tiffs within a short day what shall be so found due to them, together with what (if anything) the Plaintiffs shall have paid to the Defendant B. to redeem him as afore- said, or in default to be foreclosed all right or equity of redemption in the premises, and to convey the same to the Plaintiffl accordingly. 5. That, &c. BILLS. 269 IV. Bill for Specific Performance of an Agreement for the Sale of a Specific Freehold Estate, with Charges as to Acceptance of Title. Performance. 1. The Plaintiff was on the of , and still is, seised seisin of of the inheritance in fee simple in possession of [parcels^. vendor. 2. On the said of the Plaintiff caused the said Sale by auc- hereditaments to be put up for sale by auction at , by *'""■ Messrs. , auctioneers, subject to certain conditions of sale then produced. The said conditions provided that the pur- chaser should pay into the hands of the auctioneer immediately after the sale a deposit of £ per cent, in part of his or her purchase money, and sign an agreement for payment of the residue thereof on the of then next at the office of Mr. , the Plaintiff's solicitor, from which time the pur- chaser was to have possession of the said hereditaments, or to be entitled to the rents and profits thereof, and up to that time all outgoings were to be cleared by the Plaintiff, and that if from any cause whatever the purchase should not be completed on the said of then next, the purchaser should pay interest after the rate of £5 per centum per annum on the said residue of the said purchase money from that day until the time of the completion of the purchase, and that an abstract of the title of the Plaintiff to the said hereditaments should be furnished to the pTirchaser at the Plaintiff's expense within days from the date of the sale, and that all objections to the said title which should not be sent to the Plaintiff by the said purchaser within days from the delivery as aforesaid of such abstract, should be considered to be waived, and that upon payment of the residue of the purchase money the pur- chaser should be entitled to conveyances and assignments of the said hereditaments, such conveyances and assignments to be prepared by and at the expense of the purchaser, and that the conveyance, assignment or surrender of any outstanding estate, term or interest of any description, should be at the expense of the purchaser. 3. On the said of the Defendant became the pur- chaser at the said auction of the said hereditaments at or for the sum of £ , and thereupon paid to the said Messrs. the sum of £ deposit, and signed a memorandum endorsed upon a copy of the said conditions as follows [memorandum']. 4. On the of , Mr. , the Plaintiff's solicitor, at Delivery of - the Defendant's request, sent to Messrs. and , of abstract. , who were and are the solicitors acting for the Defendant in the matter of the said sale, a perfect abstract of the title of the Plaintiff to the said hereditaments. 270 APPENDIX. Specific Perfontumcc. Seqaisitions and answers. No further objection, &c. Possession by defendimt. Demands for completion. and neglect to complete. Cliarge of acceptance of title. Tbe offer to do equity. 5. On or about the of , the said abstract •was returned to the said Mr. with some observations and requisitions of title made by the said Messrs. , and on or about the of the said Mr. again sent the said abstract to the said Messrs. , accompanied by a Ml answer on the part of the Plaintiff to the said observations and requisitions. 6. No further or other objection to the said abstract or to the title of the Plaintiff to the said hereditaments has been sent to the Plaintiff or his said solicitor by the Defendant or his said solicitors, and the Defendant has never returned the said abstract, but still retains possession thereof. 7. On or about the of the Defendant was let into possession of the premises and has ever since continued in the possession and in the receipt of the rents and profits of the said premises. 8. On the of the said Mr. wrote and sent a letter to the said Messrs. and , stating that the time for the completion of the said sale was about to expire, and re- questing them to foiTvard to him the draft conveyance of the said hereditaments for his perusal on behalf of the Plaintiff. 9. The said Messrs. and did not forward the said draft conveyaaee, and the Defendant did not comjilete the said purchase on the said of , and the said Mr. . - has several times applied to the Defendant requesting him to complete the said purchase and pay the said residue of the purchase money, but the Defendant has always hitherto neg- lected and stiU neglects to complete the said pm-chase, and has paid no interest upon the said purchase money. 10. Under the circumstances the Plaintiff chat^s that the Defendant ought to be taken to have waived all objections to the title of the Plaintiff to the jsaid hereditaments and premises, and to be ordered specifically to perform the said agreement and to pay the costs of this suit. Prayer. The Plaintiff prays as follows •^- 1. That the agreement so made and entered into by and between the Plaintiff and the De- fendant for the purchase of the said here- ditaments may be specifically performed by the Defendant, the Plaintiff being willing and hereby offering to perform the same so far as it remains on his part to be per- formed. 2. That a proper conveyance of the said here- BILLS. 27] ditaments from the Plaintiff to the Defend- Specific ant may be directed to be settled, and that P^ rfcfman ce. upon the execution of the said conveyance by the Plaintiff the Defendant may be ordered to pay the said residue of the said purchase money of £ to the Plain- tiff, together with interest thereon after the rate of £5 per centum per annum from the said of , together with the costs of this suit. 3. And that, &e. V. Bill by intended Lessee against Lessor for Specific Performance of Agreememt to grant Lease, and Claim for Darrmges. Between A. B Plaintiff, and CD Defendant. 1. Prior to and on the of ,-the Plaintiff was in possession and occupation of the house and land hereinafter mentioned as yearly tenant of the said C. D. of • aforesaid, the above-named Defendant, at the rent of £60 per annum. 2. The Plaintiff being desirous of converting the said pre- Agreement mises into an hotel applied to the Defendant some time before f"' '*¥"' the said month of to grant him a lease of the said pre- alterations. mises, and an agreement in writing was accordingly entered into between the Plaintiff and Defendant, and signed by the Defendant on the said of , which, so far as is mate- rial, is in the words and figures following, that is to say : — " Mr. A. B. agrees to take of Mr. C. D. the house and pre- " mises called , situate at , for the term of " 12 years from the 26th day of December, 186 — , at " a rent of £70 per annum, to be paid quarterly. Mr. " C. D. to keep the outside of the same house in good " and tenantable repair, and to paint the outside of the " same every 3 years ; Mr. A. B. to paint the whole of " the inside two coats every 6 years ; and the lease for " the same to be granted at Christmas next. Mr. A. B. " to put up a building according to the plan shown " except the roof. It is agreed that the premises are " not to be re-let during the term without the landlord " or his executors approve of the tenant. " Dated of , 186—. A. B., C. D." 3. The Plaintiff, in pursuance of the said Agreement, erected Alterations 272 APPENDIX. Sfonfe the building therein mentioned, according to the plan therein erronmam. referred to, and on the faith of having a lease granted to him executed at according to the said Agreement made various alterations and improvements in the said premises, and all such alterations and improvements were made with the knowledge and sanc- tion of the Defendant; and in such buildings, alterations and improvements, the Plaintiff has expended the sum of £226:15«. 2d. Applications 4. The Plaintiff has frequently applied to the Defendant to for lease. grant him a lease according to the said Agreement, but he refuses so to do. Dae payment 5. The Plaintiff has always duly paid the rent and per- of rent, &c. formed the covenants which, according to the said Agreement, Offer to per- are to be paid, observed and performed on his part; and he is tormagree- .^ling and hereby offers specifically to perform the said Agreement on his part. Prayer. ' The Plaintiff prays as follows: — ' 1.' That' the Agreement so made and entered into by and between the Plaintiff and Defendant for a lease of the said messuage and premises may be specifically performed by the Defendant, the Plaintiff hereby offer- ing to perform the same, so far as it remains on his part to be performed, and that a proper lease, according to the said Agree- ment, by the Defendant and aU necessary parties may be granted to the Plaintiff. 2. Or if this Court shall think fit, the damages which the Plaintiff has, by reason of the non-performance of the said Agreement on the Defendant's part, may be assessed in such manner as this Honorable Court shall direct, and that the Defendant may be de- creed to pay such damages to the Plaintiff in substitution for specifically performing the said Agreement. 3. That the Defendant may be ordered to pay the costs of this suit. 4. That the Plaintiff, &c. BILLS. 273 VI. STiort Bill for Administration of Intestate's Estate where Next Administra- of Kin not all unknown, h/ one Next of Kin against Adminis- *""• trator. 1. On the of , 1857, A. C, who was then in the Death service of the Earl of F. at , died suddenly intestate and ^testate. leaving considerable personal estate. 2. On the of , 1858, letters of administration to the Letters of personal estate of the said A. C. were granted by her Majesty's aaministi'a- Court of Probate to the Defendant who is now her sole legal personal representative. 3. The said A. C. never was mai-ried, and had neither father Titles o( nor mother living at her decease. The Plaintiff is one of her ^'if"''? ""* cousins-german by her mother's side ; the Defendant W. C. is another of her cousins-german by her mother's side ; and the Plaintiff and Defendant are two of her next of kin, and are by virtue of the Statutes for the Distribution of the Personal Estate of Intestates entitled to share in her personal estate. 4. The next of kin of the said A. C. are numerous, and the Next of kin majority of them in very humble circumstances. And it is a ™inown. matter of considerable difficulty to ascertain with correctness who are the persons entitled to her personal estate. 5. Under these circumstances the administrator of the said A. C. is unable safely to distribute her personal estate without the aid of this Honorable Court. Prayer, The Plaintiff prays as follows: — 1. That proper accounts of and relating to the personal estate of the said A. C. may be taken and that the persons entitled to share therein may be ascertained under the du-ec- tion of this Honorable Court, and that such personal estate may be applied in a due course of administration. 2. That, &c. VII. Short Bill by Creditor against Executrix for Administration of Heal and Personal Estate. 1. J. F., late of , surgeon, duly made [and published] his wiii of Tes- last Will [and Testament in writing], bearing date the of ^^^f^^? , 1854, whereby he directed that all his just debts, funeral N 5 274 APPENDIX. Administra- tion. and testamentary expenses should be paid as soon as conve- niently might be after his decease, and subject tliereto he gave, devised and bequeathed all his estate and eflfects real and personal of which he might at the time of his decease be seised, possessed or entitled, or over which he might have any testamentary power unto his wife M., her heirs, executors, administrators and assigns absolutely, and the said Testator appointed his said wife sole executrix of his said will. 2. The said Testator died on the ~-~ day of February, 185—, without having altered or revoked his said Will, aijd the said Will )»as beep proved in her Majesty's Court of Probate by the said M., [whereby she has been constituted and become the sole legal personal representative of the said Testator.] 3. The said Testator was at the time of his dea;th justly and truly indebted to Plaintiff in the sum of £• upon simple contract, and was also indebted to various persons besides Plaintiff both on specialty and simple contract. 4. The said Testator was also at the time of his death pos- sessed of or entitled to personal estate of considerable value, but as the said M. alleges insufficient for the payment of his debts in full. Partly out- 5. The said Defendant has already possessed herself of, got standing. in Or received a considerable part of such pei'sonal estate and other part thereof as she alleges now remains outstanding or unreceived. 6. Plaintiff has been unable to discover whether the said Testator was or was not at the time of his death seised, pos- sessed of or entitled to any real estate. * Prayer. The Plaintiff prays as follows : — 1. That the real and personal estate of the said J. F. may be duly administered in this Court for the benefit of Plaintiff and all other the unsatisfied creditors of the said J.F. 2. That for such purposes all proper and neces- sary directions may be given. 3. That, &c. Death of testator, &c. Debt to Plaintiff- other debts. Personalty insufficient to pay debts. Kealty unknown. BILLS. 275 VIII. SJwrt Bill ly Administrator, against Assignees in Bankruptcy Adminutra- of Intestate, for Administration. *'<"'■ 1. W. P., late of , and now deceased, died on the Death ot of , 186 — , intestate, and on the of , 186 — , letters intestate and of administration to the goods, chattels, rights and credits of ia^ni^'ra- the said W. P. were granted to Plaintiff as his father and sole tion. next of kin by the Prerogative Court of Canterbury, which was the proper Court for the purpose ; [and Plaintiff thereby became and is now sole legal personal representative of the said W. P. deceased.] 2. Prior to the death of the said W. P., and as Plaintiff Bankruptcy believes some time in the year 186—, the said W. P. with one of '"'estate. E. S., carrying on business in partnership together as in the town of , were duly adjudicated bankrupts under a petition in bankruptcy filed against them by the Defendant E. K. The said W. P. being so adjudicated by the name of 3. The Defendant H. C. was appointed and was the official Appointment assignee, and the Defendants E. E. and H. W. have been ^^^j'^^'^" appointed and were creditors' assignees under the said bank- as totals- ^ ruptcy, and Plaintiff has not been able to discover that the charge, said W. P. ever obtained an order of discharge under the said bankruptcy. 4. The said W. P. was at the time of his death possessed of Property or entitled to personal property which had been constituted aciutrea since principally (as Plaintiff believes) from savings made by him ^''^^I'toy- out of his earnings subsequently to his having been adjudicated a bankrupt, and Plaintiff has got in and received some part of such personal property, and other part thereof still remains outstanding. 5. The Defendants as assignees under the bankruptcy of claim thereto the said W. P. claim to be interested in or entitled to the "' Defendants personal propei-ty of or to which he was possessed or entitled '"*^'8"e^J* at the time of his death. 6. There are some creditors of the said W. P. who have Creditors become such subsequently to the date of the said petition in since petition, bankruptcy, and whose claims conflict as Plaintiff is advised with the claims of his creditors under the said bankruptcy, and Plaintiff cannot ascertain with certainty who such ere- Names, &o, ditors are or ascertain or determine the rights of his creditors "nsuown. under the said adjudication, and his subsequent creditors re- spectively, and properly get in and administer his personal estate without the aid of this Court. 276 APPENDIX. AdminUtra- 7. Plaintiff is sole next of kin of the said W. P. under the """■ Statutes for the Distribution of the Estate and Effects of Per- Titie of sons dying Intestate. Flaintia as nextolUn. p^^^^^^ The Plaintiff prays as follows: — 1. That an account may be taken of the personal estate of the said W. P. come to the hands or use of Plaintiff and of his application thereof and that his outstanding personal estate might be got in under the direction of this Court. 2. That his personal estate may be applied in due course of administration imder the di- rection of this Court. 3. That it may be ascertained whether the said intestate had any creditors at the time of his death who became such after the date of the said petition in bankruptcy against Jiim and the said L. S., and that the rights of the Defendants as his assignees under the said adjudication in bankruptcy and of such subsequent creditors (if any) against the personal estate of the said W. P. may ■be ascertained and declared and properly provided for. 4. That aU proper and necessary directions may be given for the purposes aforesaid. 5. That, &c. IX. Sill hy an Infant Cestui que Trust for Administration of Real amd Personal Estate directed to he sold, charging the Executor and Trustee with Devastavit, and ashing for Appointment qf a new Trustee. Between A. B. (an Infant under the ageA of twenty-one years, by J. I p? • ,j^r B., his great aunt and Next | ^"''^"'W, Friend) ) and CD Defendant. Humbly complaining sheweth unto his Lordship A. B. (an infent under the age of twenty-one years, by J. B., of , BILLS. 277 spinster, Ms great aunt and next friend), the above-named Adminiaira- Plaintiff as follows : — tion— Breach 1. H. F., deceased, duly made [and signed] his last Will [and ' Testament in writing] bearing date the day of , 185 — , S|S.'?'f^® and thereby, after directing that all his just debts, funeral and ° testamentary expenses should be paid by his executors as soon as convenient after his decease, gave, devised and bequeathed unto his executors thereinafter appointed and the survivor of them, and the executors and administrators of such survivoi', all his estate and effects whatsoever and wheresoever both real and personal upon trust, to coUect get in and receive such parts as should consist of money or securities for money, and to sell and dispose of the residue of his said estate and effects (except his books, plate and jewellery, which he directed should be preserved and given to his son the Plaintiff when- ever his said executors should think fit), and to stand possessed thereof and of the proceeds of such sale or sales upon trust to invest the same in their or his names or name in some or one of the public stocks or iimds of Great Britain or of the East India Company, and out of the interest dividends and annual produce thereof respectively to pay unto his father E. F. since deceased one annuity or yearly sum of £80 for and during the term of his natural life by equal quarterly payments, and subject thereto upon trust to pay and apply the whole or such part as his executors should think fit of the said interest dividends and annual produce of his said estate and effects in ajid towards the maintenance education and advancement in life of the Plaintiff until he should attain the age of twenty- . one years, and upon his attaining that age, then upon trust to pay assign and transfer imto the said Plaintiff all his said estate and effects, and the stocks, ftmds and secm-ities in or upon which the same should then be invested, together with his said books, plate and jewellery, if not previously delivered to the Plaintiif, to and for his own absolute use and benefit. And in case the Plaintiff should die under the age of twenty- one years, then the said Testator gave and bequeathed unto J. the wife of H. of the legacy or sum of £200 to and for her sole and separate use, and subject thereto, and to the afore- said annuity to his father if then subsisting, he gave and be- queathed the whole of the said monies, stocks, funds and securities and the vmapplied dividends and interest thereof, unto and equally amongst his brothers , and , or such of them as might be then living, and the issue of such of them as might- be dead, such issue taking the share or shares his, her or their parent would have been entitled to if living. And the said Testator nominated, constituted and ap- pointed T., Esquire, of the firm of and of and the Defendant executors of that his Will. 278 APPENDIX. Administra- ofTrmt, Death of tee- tatoraod probate. Acceptance of trosta by de- fendant and disclaimer by other tmstee. Estate of testator. Assets in hands of exe- cutor. Possession of articles spe- ciflcalJy be- queathed. Misapplica- tion of assets. Particular instances of misapplica- tion. 2. The said Testator died in or about the month of December, 185 — , without having in any manner altered or revoked hie said Will, and the same was on or about the thirteenth day of June, 185—, duly proved by the Defendant alone in the Pre- rogative Court of the Archbishop of Canterbury, [and the De- fendant thereby became and has ever since been and still is the sole legal personal representative of the said Testator.] 3. The Defendant accepted and acted in the execution of the trusts of the said Will The said T. never accepted or acted in the execution and he disclaimed the trusts thereof. 4. The Testator at the time of his death was possessed of or entitled to personal estate of considerable value, much ex- ceeding in amount his iimeral and testamentary expenses and debts. The Testator was also at the time of Ms death seised to him and his heirs of some real estate. 5. The Defendant got in the personal estate of the said Testator, and thereout discharged his iimeral and testamentary expenses and debts, and after such payment there remained in the hands of the Defendant a considerable snrplus. The De- fendant also sold the real estate of the said Testator and re- ceived the purchase-money for the same. 6. Amongst other personal estate of which the Testator was possessed at the time of his death were valuable plate and jewellery which by the said Will were specifically bequeathed to the Elsuntiff, such plate and jewellery were taken possession of by the Defendant, and he alleges that they are still in his possession. 7. The Plaintiff has recently ascertained, and the fact is, that the Defendant, instead of setting apart and investing the aforesaid surplus of the said personal estate and the net pro- ceeds of the said real estate, misapplied all the same surplus and net proceeds, and in breach of his duty as executor and trustee as aforesaid mixed the same with his own monies and employed the same in his business, and that the same are wholly unsecured and in jeopardy. 8. In particular the Plaintiff says that, from correspondence which has passed between Mr. K. (a friend of the Plaintiff, and as such then acting on his behalf), and the Defendant [to which the Plaintiff craves leave to refer], it appears, and the facts are, that the Defendant, soon after the death of the said Testator, received the sum of £ from India (being part of the said Testator's estate, and that he also received the amount assured on a policy of assurance on the life of the said Testator, and that out of such policy monies he paid all the debts of the Testator, and that there remained in his hands a balance on Bii-Ls. 279 account tliereof of £ and upwards, and the Defendant has Administra- admitted to the said Mr. K. (as the fact is) that such balance, **Z^^°'' and also the said sum of £ and other parts of the said ■- ' personal estate were placed by him and are in his business and charge of wholly unsecured. admlasions. 9. The Defendant alleges that he has recently, and in con- Refusal to sequence of the remonstrances of the said Mr. K., purchased produce on behalf of the said Testator's estate the sum of £ ^""^ "'*■ £3 per Cent. Consolidated Bank Annuities. However, the Defendant has not produced, and he refuses to produce the stock receipt or any evidence showing such purchase. 10. The Defendant ought to set forth Ml accounts of the estate of the said Testator and of the application thereof. H. The Defendant has in his possession divers documents Documents, relating to the premises. Prayer. The Plaintiff prays as follows : — 1. That the estate of the said Testator maybe administered and the trusts of the said Will carried into execution under the direction and decree of this Honorable Court. 2. That proper accounts may be taken of the Testator's estate, and that in taking such accounts rests may (if proper) be made, and that the Defendant may be charged as this Honorable Court may think proper in respect of any devastavit or breach or breaches of trust committed by him. 3. That new trustees may be appointed of the said Will in the room of the Defendant and of the said T. 4. That the Defendant may be restrained by the order and injunction of this Honorable Court from receiving, getting in or dealing with the estate of the said Testator or any part thereof, or in any manner intermeddling therewith, and that a Receiver may be ap- pointed of the said Testator's estate with the usual directions. 6. That for the purposes aforesaid all necessary and proper directions may be given and accounts taken. 6. That,&c. 280 APPENDIX. Adminigtra- Uatit Limited. wm of realty and person- alty (before Wills Act). Bill by Administrator of Legatee for Limited Administration of Testator's Estate against Executors and Devisees of surviving Executor and Trustee, and for Payment of Funds appro- priated to Payment of Legacy. Between S. Y. Plaintiff, and The Reverend E. D., Clerk, and | ^^,^„fe_ 1. J., late of , deceased, being at the time of making his Will hereinafter stated, and thenceforth until his death, seised, possessed of or entitled to divers freehold, copyhold and leasehold lands, tenements and hereditaments, and con- siderable personal estate, duly made, signed and published his last WUl and Testament in writing, bearing date the of January, 1787, and executed and attested in such manner as by law was then required for rendering valid devises of real estate, and thereby, after bequeathing his household goods to his sister M., and devising his copyhold messuage, tenemeiit and estate lately purchased by him from the assignees of , with all the lands and appurtenances thereunto belonging, situate , unto his nephew N. D., of aforesaid, esquire, H., of , stone merchant, F., of aforesaid, merchant, and the Reverend P., of aforesaid, and the survivors and survivor of them, and the heirs and assigns of such survivor, to the use of them and the survivor of them, and the heirs and assigns of such survivor for ever, upon trust as therein mentioned : And after bequeathing divers pecuniary legacies to be paid out of his personal estate and limiting life estates (which have long since expired) for the benefit of the said M. and other persons in certain messuages and hereditaments in the said WiU specifically mentioned, the said Testator gave, devised and bequeathed the same messuages, with their ap- purtenances, and all his estate and interest therein respec- tively, from and after the determination of such life estates, and also aU and singular other his messuages, lands, tene- ments and hereditaments whatsoever in the several counties of and , or either of them or elsewhere, in the king- dom of Great Britain, as well freehold as copyhold and lease- hold (not otherwise by him thereinbefore disposed of), with their and every of their appurtenances, and also aU other the estate, monies and eflFects, both real and personal, whereof he should die seised or possessed or any ways interested in or enti- tled unto of what nature or kind soever the same might be (after payment of his debts, legacies and fimeral expenses), unto the said N. D., H., F. and P., and the survivors and survivor of BILLS. 281 them, and the heirs, executors and administi-ators of such sm-- Admtnisira- vivor, m trust nevertheless with all convenient speed to sell tim. Limited. and absolutely dispose thereof respectively and every part thereof, and to convert the same, or such part thereof as should not be in money, into ready money, by such -ways and means and at such time and times respectively as to them the said trustees, or the survivors or survivor of them, his heu-s, executors or administrators, should seem most meet and proper in order to make the most thereof, and to receive the monies thence arising, for which their or his respective receipts or receipt should exonerate all purchasers and persons what- soever I and also to receive and take the rents, profits, divi- dends, interest and proceeds of the said houses, real and per- sonal estates and premises respectively, until the same should be sold or otherwise converted into money as aforesaid ; and as to, for and concerning the monies to be raised and received by and_ from such respective sale and sales, ways and means aforesaid, the said Testator ordered and directed that the same should be divided into five equal parts or shares ; and the said Testator, after declaring by his said WiU certain trusts as to four of such five equal parts or shares therein mentioned, as to the remaining one-fifth part or share directed that the same should be divided into four equal parts or shares, one of which said four shares he gave and bequeathed unto J. L. and his three children by the said Testator's then late niece F. L. deceased, in manner following (to wit) : the interest or produce thereof to the said J. L. for his life, and after his decease the principal unto T., E., andM. L., his children by his (the Testa- tor's) said late niece P. L., and the then survivors and survivor of them, and the child or children, if any, of such of them as should happen to die in the lifetime of the said J. L., share and share alike : such child or children respectively taking his or their parents' share only. And the said Testator appointed Appointment his nephew J. and the said N. D., H., P. and P. executors of °* executors, the said Will ; and the said Testator after bequeathing certain pecuniary legacies and providing for the reimbursement and indemnification of the trustees of the said WUl revoked all Wills and Codicils by him theretofore made. 2. In the month of the said departed this life Death of tes- without having revoked or altered his said WiU, which was t^'"- on the of duly proved by the said J., the nephew, H., P. and P., in the Prerogative Court of the Archbishop of Probate by Canterbury, and was on the of duly proved by the «^<«!ator8. said N. D. in the same Court. 3. All the trustees of the said Testator's Will accepted and Acceptance acted in the trusts thereby in them respectively reposed as *y executors. aforesaid. 282 APPENDIX. AdminUtra- Uon, Limited. Conversion of estates. Appropriation of funds for residuary bequest. Title of plaintifi. Payment of dividends to tenant for life. Death of other resida- ary legatee, representa- tive un- known. Deaths of co- executors. 4. After the death of the said Testator the said N. B., H., F. and P. sold and converted into money the real and personal estate of the said Testator, and out of the monies arising from such sale and conversion appropriated and set apart and in- vested in their names a sum of £ , or thereabouts, to answer the trusts in the said Will contained as to the said one-fourth part or share so bequeathed by the said Will in trust for the said Thomas Mason for life, and his children as aforesaid, of and in the said one-fifth part or share of the said residuary real or personal estate of the Siud Testator. 5. On the of the said E. L. intermarried with S. Y., since deceased, but there was no settlement or agree- ment for a settlement either previous or subsequent to such marriage which in any manner affected the share or interests of the said E. L. under the said Will of the said Testator. 6. The said J. L. the father died in the year , leaving the said T. L. his son, E. Y., formerly E. L. spinster, and M. L., his said three children, him surviving. 7. The said N. D., H., F. and P. duly paid to the said J. L. and his executors and administrators all the dividends and income of the said sum so appropriated as aforesaid up to the time of his death ; and upon his death the said sum became divisible and payable as follows, that is to say : one-third part to the ssud T. L. the son, another one-third part thereof to the said S. Y. and E. his wife, in right of the said E., and the remaining one-third to the ssud M. L. 8. The said E. Y. died on or about the of , leaving the said S. Y., deceased, her husband, and the Plaintiff her only child, her surviving. 9. The said S. Y., deceased, died on or about the of , without ever having taken out letters of administration to the personal estate and effects of the said E. Y. deceased ; and such letters have lately been granted to the Plaintiff by the proper Ecclesiastical Court. 10. The said T. L. died in or about the month of , a bachelor and intestate, and letters of administration to his personal estate and effects have lately been granted to the Plaintiff by the proper Ecclesiastical CSourt. 11. The said M. L. intermarried with one T. BL, Esquire, and is since dead, and the Plaintiff does not know whether there is any personal representative of the said M. L. 12. The said H., F. and P. respectively died many years ago in the lifetime of the said N. D. BILLS. 283 13. The said N. D. being at the date of his will and thence- forth up to the time of his decease seised of or otherwise well entitled to real estates of great value, and being at the time of his decease possessed of or entitled to large personal estates, in such manner as by law was then required for rendering valid devises of real estate, duly made and published his last Will and Testament in writing, dated the of , 1820, and thereby devised and bequeathed all his real and personal estate unto his three sons, J. D., since deceased, and the above-named Defendants E. D. and H. D., their heirs, exe- cutors, administrators and assigns respectively, upon trust to sell and convert the same as therein mentioned, and directed his said trustees to stand possessed of the monies to arise from such sale and convei-sion upon certain trasts, including a trust for payment of his debts therein mentioned ; and the said Testator by his said Will appointed his said three sons J. D., E. D. and H. D. executors thereof, and devised all mortgages in fee and trust estates, vested in him as a trustee, unto his said three sons, their heirs and assigns, according to the nature of such trusts. Administra- iiortf Limited. Will of enr- Tiving exe- cutor and trustee Cl>e- fore Wills Act). Appointment of defendants executors, and devise of trust estates. 14. The said N. D. died on or about the of , 1 830, Death of sur- without having revoked or altered his said Will, save by a living exe- Codicil not affecting the said Will so far as hereinbefore ' stated, and the said J. D., E. D. and H. D. duly proved the same Will and Codicil on the of , 1830, in the Con- sistory Court of the Bishop of , and accepted all the trusts probate. of the said WilL 15. The said J. D. died in the year 1831, leaving the De- Death of one fendants his co-trustees and co-executors him surviving. ^'^'^m™* 16. The Plaintiff within the last twelve months, and by piaintw's accident, discovered the fact of the said T. L., E. Y. and M. K., *f/°™te °* and their deceased father having been interested under the '^"^ said Will of the said Testator, and he thereupon forthwith consulted his solicitors Messieurs upon the subject, who commenced a correspondence with Messieurs , of , the solicitors of the Defendants, for the purpose of ascer- taining what was the amount of the said shares of the said T. L., E. Y. and M. K. in the said residuary estate of the said , and whether the same had been paid over to them or to their representatives, but no satisfactory information as to the payment of such shares has been obtained. This cor- respondence, to which the Plaintiff craves leave to refer, con- ^1 T'T* f aa r 1 on A ^"'"*J^ ^" give tinned up to and mclusive ot the oi , lob — , ana injonnation, since that time the said Messieurs have been engaged in making fiirther enquiries of other persons upon the subject but without success. Correspond- ence and re- fusal to give 284 APPENDIX. Administra- 17. The said sum so appropriated to answer the trusts of the ti m. Limi ted, gaid "vyill in favour of the said J. L. and his children has Kcsidue ap- iiever been paid to the persons entitled thereto respectively ; propriated nor has the interest thereof been paid since the death of the never been said J. L. paid. Defendants • 18. The said Defendants ought to admits assets of the said Mtelrfttif " *f- ^- sufficient to answer the demands of the Plaintiff in last executor, this suit, or else set forth true and full accounts of his real and personal estate. The Plaintiff prays as follows : — 1. That the trusts of the said Will of the said ' J. deceased, so far as they relate to the said sum so appropriated to answer the trusts of the said Will in favour of the said J. L. and his three children may, so far as they are vmperformed, be performed by and under the decree of this Honorable Court. 2. That the said Defendants, as executors and trustees of the said Will of the said N. D. deceased, and personally, may be ordered to pay to the said Plaintiff, as administrator of the personal estate of the said E. Y., and as administrator of the personal estate of the said T. L., and to the personal repre- sentative of the said M. K., their respective shares of the said sum so appropriated to answer such trusts as aforesaid, and all in- terest due in respect of such shares re- spectively. 3. That for the purposes aforesaid aU necessary enquiries and accounts may be made and taken. 4. That the Plaintiff, &c. BILLS. 285 XI. Bill hy Legatee against Executor and Trustee to set aside a Deed of Gift to Defendant for Fraud and want of independent Advice, for Administration, and Receiver, and to restrain De- fendant from obtaining, dc. the Funds. Administra- tion — Fraud — Camcetla- tiono/Deed. Between J. C. . and Plaintiff, C. L Defendant. 1. G. L., late of , deceased, duly made and executed w^ui (since his last Wm beai-ing date the of February, 1861, and '^"^ ■*^°"' thereby bequeathed unto S. C. as a legacy for her own benefit all his household furniture, plate and plated goods, china and all other his household effects absolutely ; and the said Tes- tator by his said WiU, after bequeathing unto C. H. a legacy of £10, gave and bequeathed, subject to the deduction and payment thereout of all his just debts, funeral and testa- mentary expenses and of the said legacy of £10, all other the residue and remainder of his personal estate, if any, in manner following, namely, one equal half share thereof unto his son the said Defendant for his own use absolutely, and one equal fourth share thereof unto the said S. C. for her own use absolutely, and the remaining on% equal fourth share thereof unto the said C. H. and S. C, their executors and administrators, upon trust that they the said C. H. and S. C, and the survivor of them, and the executors and administrators of such survivor, should invest the same, and also any surplus rents arising as thereinbefore mentioned, in the manner therein mentioned, with power to vary the same as therein mentioned, and apply the dividends, interests, proceeds and accumulations thereof (after retaining and allowing to each other aU trust expenses) in making up to his son G. L. the sum of 25s. per week, and after the decease of the said Gr. L., upon trust to pay all the remaining trust monies, as well principal as dividends and interest, if any, to the said Defendant for his own use and benefit : And the said Testator by his said Will appointed the said C. H. and S. C. executor and executrix thereof. 2. The said Testator G. L. duly made a Codicil to his said Will dated the of April, 1861, but thereby iu no way altered or revoked the said WiU as the same is hereinbefore set forth. 3. The said G. L. died in or about the month of May, 1861, without having revoked or altered his said Will, except so far as the same was revoked or altered by his said Codicil, and without having revoked or altered his said Codicil. Death of testator. 286 APPENDIX. AdminUtra- tion — Fraud — Cancella- tion qf Iked, Defendant administra- tor. Title of plain tiif. Estate of testator. Assent to bequest of chattels. Facts of fraud, &c. s to gift. 4. The said S. C. died shortly after the death of the said Testator intestate and without having proved the Will of the said Testator. 5. On the of Jnly, 1861, administration with the said Will and Codicil annexed was duly granted of the personal estate and effects of the said Testator to the Defendant, the said C. H. having renounced probate thereof. 6. On the same day of July, 1861, letters of administra- tion of the personal estate and effects of the said S. C. were granted to the Plaintiff by the district Court of Probate at . 7. The residue of the personal estate of the said Testator, after paying and satisfying his debts, iiineral and testamentary expenses, and the pecuniary and specific legacies given by his said Will and Codicil respectively, is of considerable amount in value, and the household fiimiture, plate and plated goods, china and aU other household effects by the said Will speci- fically bequeathed to the said S. C. are worth about £160 or thereabouts, and the Plaintiff is entitled thereto as the admi- nistrator of the said S. C, and the Defendant as administrator of the said Testator has assented to the said bequest of the said furniture and chattels. The Plaintiff has requested the Defendant to deliver up to him the said furniture and chattels, but the Defendant has refused to do so and has not delivered them up, alleging that the Plaintiff ha,s bonS fide given and assigned them to the Defendant for his own use and benefit. The circumstances relating to the alleged gift and assignment of the said furniture and chattels by the Plaintiff to the De- fendant are next hereinafter stated. 8. The Defendant, shortly after the death of the said S. C, having ascertained the address of the Plaintiff, went from aforesaid to , and found him and informed him that he the Plaintiff had come into about £800 or £1,000 through the deaths of the said Gr. L. and S. C. and requested him to return with him the Defendant to , which the Plaintiff did. Im- mediately on their arriving there the Defendant took the Plaintiff to a Mr. A., a solicitor who was then acting as the solicitor of the Defendant in the administration of tiie said Gr. L.'s estate for the purpose of obtaining administration to the estate of the said S. C. The Plaintiff returned with the Defendant to dinner, and after dinner the Defendant told the Plaintiff that he the Defendant had been at great trouble and expense to find the Plaintiff out, and that in order to repay him the Defendant the Plaintiff ought to give him up the said household fiimiture and other chattels so specifically be- queathed to the said S. C. as aforesaid. The Plaintiff said he would consider about it, and the next day being further urged • BILLS. 287 by the Defendant said he thought he should employ a separate Administra- solicitor, but the Defendant said that Mr. A. ■would do just as tioriF— Fraud well for him the Plaintiff as for himself, and afterwards in the uon'^Be^. course of the same day the Plaintiff and Defendant being at the said Mr. A.'s office on the matter of the said administration, the said Mr. A. handed the Plaintiff a paper telling him that it ■was for the purpose of assigning the fiirniture to the De- fendant, but tie Plaintiff declined to sign it. On their return from the office of the said Mr. A. the Defendant ■was very angry -with the Plaintiff and told him that he could give him a great deal of trouble and keep him out of his property for more than a year, and that after the trouble and anxiety the Defendant had had to find the Plaintiff it ■was not right, and that the furniture •would not fetch much at a sale and ■was not ■worth more than £40. T^wo days afterwards the Plaintiff being in ■want of a small sum of money to procm-e mourning applied to the Defendant to lend him the same, and on making such application the Defendant again urged him to give up the furniture to him the Defendant upon the grounds herein- before stated, ■whereupon the Plaintiff, believing the De- fendant's statement as to the value of the furniture, and his statement of the great trouble and expense he had been put to in finding the Plaintiff, and fearing that the Defendant might annoy him by keeping him out of the money he ■was entitled to, and being -wholly ■without the assistance of any legal advice in the matter, consented to assign the fumitura to the Defendant, and the Plaintiff immediately accompanied the Defendant to the said Mr. A.'s oflSce to inform him of such consent. The Defendant then told Mr. A. to prepare a deed, making over the said fiirniture and other chattels to him the Defendant, and that they, meaning himself and the Plaintiff, ■would caU the next day to sign.. They accordingly ■went the next day to the said Mr. A., who had accordingly prepared a deed, and who read it over to the Plaintiff and the Plaintiff then signed it. The Plaintiff was wholly without legal advice Absence of or protection in the matter, the said Mr. A. having acted taaepenacnt therein entirely as the solicitor of the Defendant. 9. The Plaintiff has since ascertained fi-om the Answer of tiie Defendant that the Deed of Assignment was dated the 5th of July, 1861, and that it purports to be an absolute assignment by the Plaintiff to the Defendant of the household furniture, plate and plated goods, linen, china and all other the household effects, late the property of the said Testator and then in and about the dwelling-house in aforesaid, in consideration of the personal services rendered by the De- fendant to the Plaintiff, and for other good causes and con- siderations him thereunto moving. 288 APPENDIX. Charges, that deed was fraadalent, A(3minUra- 10. After the Plaintiff had left the said Mr. A.'s office and '^Zk^ executed the said Deed, he -was informed for the first time that tUmo/Deed. the Defendant had Only just returned fi-om America ; and the Plaintiff began to suspect that the Defendant could not have Diacoveiy ol been at much trouble and expense in finding him out, and that " ' the Defendant had not been acting straightforwardly with him •in the matter of the said assignment, and accordingly the Plaintiff determined to consult, and did for the first time con- sult, his solicitors Messrs. . 11. The Plaintiff avers that under the circumstances afore- said the Defendant cannot retain the said furniture and chattels against him, and that the said assignment by the Plaintiff to the Defendant of the said fiimiture and chattels and the Deed which the Plaintiff has executed, purporting to assign the same to the Defendant, are firaudulent and void, and such Deed ought to be delivered up to be cancelled. That receiver 12. That a receiver may be appointed of the personal estate pokrtM.*"^'"' of t'le said Testator, and the Defendant restrained in the manner hereinafter prayed. 13. The only persons interested in the residuary personal estate of the said Testator besides the Plaintiff are the Defendant and the said G. L. 14. The Plaintiff is -willing and hereby offers to pay to the Defendant the proper costs, charges and expenses which he has incurred in finding out the Plaintiff upon the same being ascertained. Parties inte- rested in per- sonalty. Offer to do equity. Prayer. The Plaintiff prays as foUows : — 1. That it may be declared that the said assign- ment by the Plaintiff to the Defendant of the said furniture and other chattels so spe- cifically bequeathed by the said will of the said Testator to the said S. C. as aforesaid is fi-audulent and void, and that the said Indenture of the 5th of July, 1861, may be delivered up to be cancelled, and the De- fendant ordered to deliver up such chattels to the Plaintiff 2. That an accoimt may be taken of the personal estate of the said Testator come to the hands of the Defendant, or of any person or persons by his order or for his use. BILLS. 289 3. That an account may be taken of the debts Administra- and funeral expenses of the said Testator '^'^^™<"« and the legacies respectively bequeathed um of Deed. by his said Will and Codicil. 4. That the pecuniary and specific legacies re- spectively given by the said Will and Codicil of the said Testator may be paid and satisfied. 6. That the clear residue of the personal estate of the said Testator may be ascertained, and that the same may be distributed and secured among and for the benefit of the Plaintiff as the administrator of the said S. C, and the other persons entitled thereto under the said Will of the said Testator respectively. 6. That the Defendant may be restrained by the order and injunction of this Honorable Court from retaining, selling, mortgaging, charging or otherwi.se disposing of, in any manner whatsoever, the said furniture and other chattels so bequeathed by the said Will of the said Testator to the said S. C. as aforesaid or any part thereof, and from retaining, receiving or collecting any of the monies, debts or outstanding personal estate of the said Testator or any part thereof, and that some proper person may be appointed to receive the said furniture and other chattels, and all the outstanding personal estate and effects of the said Tes- tator, and to collect and get in the debts owing to him. 7. That the Defendant may be ordered to pay the costs of this suit. 8. That the Plaintiff may have such further or other relief as the nature of the case may require. 290 APPENDIX. Constructive and actual Fraud- Discovery — CancellaMon of Deed. Marriage. Treaty for marriage afc time of deed. t>6ed vesting property in Defendant and other trustees and out of power of husband. Marriage settlement. Circum- stances of fraud in De- fendant. XII. Bill against a Solicitor and Trustee under a Deed to set it aside, as made in Fraud of Marital Rights and for Discovery. Between P Plaintiff, and R Defendant. \_Address'], &c. 1. On the of , the Plaintiff intermarried with one Sarah Gr., of , spinster, now S. P., the wife of the Plaintiff. 2. On the date of the Indenture hereinafter stated the said marriage between the Plaintiff and the said S. was in contem- plation, and the said S. was possessed of considerable personal estate. The said personal estate included a sum of £ and interest thereon, secured by a bond from one T. to the said S. 3. On or about the of • , an Indenture of that date, and made between the said S. of the one part and the De- fendant and certain other parties to the Plaintiff unknown of the other part, was executed by the said S. By the said Indenture the said bond and the said sum and interest thereby secured were assigned by the said S. to the said parties thereto of the other part, their executors, administrators and assigns, upon certain ti'usts, whereby the Plaintiff was and is deprived of the control and enjoyment of the said property, and amongst others upon certain trusts for the separate use of the said S., but the Plaintiff is unable to discover or set forth the parti- culars of the said trusts, or the names of the said trustees, and the Defendant refiises to give him any information on the subject. 4. On or immediately before the said marriage an Indenture of Settlement dated the of , and made between the Plaintiff of the first part, the said S. of the other part, and X. and y. of the third part, was executed, whereby certain real estates of the Plaintiff of considerable value, and a sum of £ £3 per Cent. Bank Annuities belonging to the said S. were settled upon certain trusts for the benefit of the Plain- tiff and the said S. and the children of the said man-iage. 5. The Defendant acted as the solicitor of the said S. in the matter of the said marriage settlement, and at the time he was so acting the said Indenture of the of was prepared by him and was together with the said bond delivered to him. The said last-mentioned Indenture and bond are still in the possession of the Defendant. BILLS. 291 6. The said Indenture of the of does not purport Constructive to be made, and was not executed with the privity or consent "^ actual of the Plaintiff ; and the said R., at the several times when the 2)ixo!m— said last-mentioned Indenture was so prepared and delivered Cancellation to him as aforesaid, well knew that the same was intended to "fBeed. be executed and was executed without such privity and con- sent as last aforesaid. 7. The Defendant has ever since the date of the said Inden- Receipt of ture claimed to be entitled to receive the interest upon the projerty'by said bond debt, and has received all the said interest from the Defendant ; said T. as and when the same became due and payable from the said date to the of last, but has not accounted for or paid the same interest to the Plaintiff. 8. The Defendant has invested at divers times and in divers and invest- securities the said interest so received by him, but the Plain- ™™*' tiff is unable to discover in whose name or names, or for whose benefit the same has been invested, or the nature and particulars of the said investments, and the Defendant refuses to give the Plaintiff any information as to the said last-men- tioned matters. 9. The Plaintiff charges that, under the circumstances, the charge of said Indenture was executed in fraud of his marital rights and actual and ought to be set aside, and that the Defendant E. fraudulently fraud, colluded with the said S. to deprive the Plaintiff of his marital rights, and ought to pay the costs of this suit. Prayer. The Plaintiff prays as follows : — 1. That the Defendant may make a full and ti-ue discovery and disclosure of and concerning the matters hereinbefore stated. 2. That the said Indenture of the of may be declared fraudulent and void, and ■ may be delivered up to be cancelled. 3. That the said bond may be ordered to be delivered up to the Plaintiff. 4. That it may be declared that all sums of money received by the Defendant in re- spect of the said bond debt and interest have been received by him in trust for the Plaintiff, and that all proper accounts and inquiries may be taken and directed as to the said sums of money and the investments and accumulations thereof and the interest thereon on the footing of such trusteeship, o 2 292 APPENDIX, and that the Defendant may be ordered to pay and transfer, or procure to be trans- ferred to the Plaintiff, all the said sums of money, investments, accumulations and in- terest. 5. Tliat the Defendant may be restrained by the injunction of this Honorable Court from receiving, suing for or obtaining the said bond debt, or any part thereof, or any fur- ther interest thereon. 6. That the Di^fendant may be decreed to pay the costs of this suit. 7. That, &e. XIII. Atcoimt— ji{ii yy Married Woman against Trustee of Marriage Settle- ^^Zef% ment and Will, for an Account, for Removal of Trustee, and MUcondud. Appointment of New Trustee. Between M. P., the wife of John P., "j by B. P., her next Friend, > Plaintiffs, and the said B. P. . . .} and N., the said John P., Joseph -^ P. and John P. the younger, f M. P., S. P. and E. P., aa.\ Defendants. Infants under the age ofi twenty-one years . . .J Humbly complaining show unto his Lordship the above- named Plaintiff M. P., the wife of the above-named Defendant John P., of , by B. P. of the same place, her next fiiend, and the said B. P., the above-named Plaintiffs, as follows : — Marriage 1. By an Indenture dated the 22nd day of March, 1832, and settlement. fluiy made and executed between K. K., late of , gentleman, Sthcrirf'wue of the first part, the above-named Defendant John P. of the to pay sum to second part, the above-named Plaintiff M. P., then, as therein be settled. described, M. K., spinster, and daughter of the said R. K., of the third part, and P. M., late of , gentleman, since ■deceased, and the above-named Defendant N., of the fourth part, in consideration of the then intended mamage between the said John P. and M. P. ; the said E. K. covenanted with the said P. M. and N., their executors and administrators, that BILLS. 293 he the said R. K., his executors or administrators would, -iccount— within three calendar months next after the solemnization of n^°^/^ the said intended marriage, pay unto the said P. M. and N., Misamdua, their executoi-s, administrators or assigns, the sum of £600 ; and it was by the said Indenture declared and agreed, that the said P. M. and N., their executors and administrators, should stand possessed of the said sum of £500 upon trust that they the said P. M. and N. and the survivor of them, his executors and administrators, should lay out and invest the said sum of £500 at interest, on such security or securities, real or personal, or in the public stocks or funds, and transpose and change the same securities and funds as they should from time to time think proper, and should pay the divi- dends and income thereof to the said M. P. during her life, for her sole and separate use notwithstanding coverture, and from and after the decease of the said M. P., then should pay the said dividends and income to the said John P. during his life : And after the death of the survivor of them the said John P. and M. P., in case there should be any child, children or issue of the said intended marriage then living, should stand possessed of the said sum of £500 upon trust for all and every or any one or more exclusively of the other or others of such child, children or issue, in such parts, shares and proportions, manner and form as she the said M. P. should, in the manner prescribed by the said Indenture, give or appoint ; and in default of and subject to such gift or appoint- ment upon trust for all and every or any one or more of such chUd, children or issue, in such parts, shares and proportions, manner and form as he the said John P. should at any time or times after the death of the said M. P., in the manner pre- scribed by the said Indenture now in statement, give or appoint ; and in default of and subject to any such gift or appointment upon trust for all and every the children (if more than one) of the said John P. and M. P. who should be living at the death of the survivor of them the said John P. and M. P., equally to be divided between them, share and share alike, with an ultimate trust in default of any such ohUd or issue as aforesaid, for the benefit of the survivor of them the said John P. and M. P. absolutely. 2. The said intended marriage between the said John P. Marriage. and M. P. (then M. K.) was duly solemnized on or about the 26th of March, 1832, and the only children which have been Family. bom of the said marriage are the said Plaintiff B. P. and the said Defendant Joseph P., who have attained the age of twenty- one years, and the said Defendants John P. the younger, M. P., S. P. and E. P., who are still infants under that age. 3. The said K. K., in such manner as the law required for wiu of wife's rendering valid devises of freehold estates, duly made and ^*ty mid""* published his last Will and Testament in writing, dated the 294 APPENDIX, ACCOUTd — Removal of Trustee for Misconduct. peraonalty on wife. Death of lather, and probate. Payment by executois of sum to trus- tees. 27th of August, 1836, and thereby bequeathed unto the said P. M. and N., their executors and administrators, the sum of £500, to be paid by his executors thereinafter named, out of his residuary estate and effects thereinafter bequeathed, at the expiration of three calendar months from the time of his the said Testator's death, with interest for the same at the rate of £4 per centum per annum from his death, upon such and the same trusts as were declared in and by the settlement made on the marriage of the said John P,, with his the said Tes- tator's daughter M. (meaning thereby the Indenture of Settle- ment hereinbefore stated) of and concerning the sum of £500 thereby vested in them the said P. M. and N,, or such and so many of such trusts as should, at the time of his the said Testator's death, be subsisting and capable of taking effect : And the said Testator by his said Will devised all that moiety of a messuage, tenement, farm and lands, called S., situate , with the rights, members and appurtenances to the same belonging unto and to the use of the said P, M. and N. and their heirs upon trust from time to time to let the same to such tenant or tenants, and at such rent or rents as they should think proper, and pay the rents, issues and profits thereof imto his said daughter the said M. P. during her life, for her sole and separate use and benefit notwithstanding coverture ; and immediately after the death of his said daughter M. P., then upon trust for and for the benefit of aU and every the children of the said M. P. (if more than one) and their respective heirs and assigns, in equal shares as tenants in common ; and if there should be but one such child, then upon trust for such only child, his or her heirs and assigns for ever. And the said testator appointed W. K. and the said J. P. his executors. 4. The said R, K. died in the month of March, 1840, without having revoked or altered his said Will, and on the Slst of March, 1840, the same Will was duly proved by the said W. K. and John P. in the Archdeaconry Court of . 5. On the 25th of September, 1840, the said W. K. and John P., as such executors as aforesaid, paid to the said P. M. and N. the sum of £495, being the amount of the said legacy (less the legacy duty) so bequeathed to them by the said Will of the said R. K. upon the trusts therein and hereinbefore referred to, at the office of the said P. M. in aforesaid, where he was practising as a solicitor; and upon such pay- ment the said P. M. and N. signed and delivered to the said W. K. and John P., a receipt for the said sum of £495, as follows : — " 25th September, 1840. " Received of Messrs. W. K. and J. P. (executors of the late " Mr. R. K.) the sum of Four hundred and ninety-five pounds BILLS. 295 Account — JRemoval of Trustee for Misconduct. Misappro- priation of said sum by deceased trus- tee and neg- ligence of Defendant. " which, with Five pounds retained by them for legacy duty, " makes the sum of Five hundred pounds, the amount of a " legacy given to us by the "Will of the late Mr. K., in trust " for Mrs. M. P. and her children. " (Signed) " P. M. " N." (a). 6. The said N. permitted the said P. M. to get possession of and_ retain the said sum of £495 ; and the said P. M., instead of investing the same, according to the trusts of the said Indenture of Settlement, applied the same to his own pur- poses. 7. Interest was paid on the said sum of £495 by the said Payment oi P. M. to the said M. P. up to the 25th of March, 1848, at the "'*'='^^'- rate of £4 ; 10s. per cent, per annum, but since that time no interest has been paid in respect of the said sum. 8. In the year 1849 the said P. M. became embarrassed in insolvency ; his circumstances and fled to Boulogne. 9. The said P. M. never returned to this country, and died and death oi abroad in the beginning of the year 1857. trustee. 10. No rent has been paid by the said N. to the said M. P. Kent of lands in respect of the said moiety of the said premises called S. ""paw since since the 15th of November, 1856 (except as hereinafter men- te?. " "™' tioned), when the rent which had become due on the previous 29th of September was paid by the said N. to the said M. P. 11. On the 4th of November, 1857, the sum of £10 was received in respect of the rent, which had become due since the said ^9th of September, 1856 ; and the said N. alleges that large sums have been expended in the repair of the said pi-e- mises, which have exhausted the balance of such rents. The Plaintiff M. P. avers, that if such sums have been so expended by the said N. or any other person by his order or authority, which she does not admit, they were expended improperly and contrary to the express directions of the said John P. given on behalf of her the said M. P. to Mr. H. M., the son of the said P. M., who resides at aforesaid, and is the solicitor and agent of the said N. in the matter of the trusts of the said Indentm-e of Settlement. 12. The Plaintiff M. P., by her said husband the said John P., Applications and her solicitors Messrs. , have frequently applied to the '"' '"'"nna- (a) This being a written admission, could then have been proved without its being alleged, and certainly could now. Under all the circumstances stated, lie trustee N. would not have been able to set up a plea of .nonpayment to him with any chance of success in proving it, and there seems to have been no use in stating this receipt. Claim by Defendant for repairs ; cliarged to be improper and unauthorized. 296 APPENDIX. Acamni—* Removal of Trustee for Msctmduet. tion and ac- counts. Particular applications. Fact to show Defendant knew of mis- appropria- tion. Letters re- ferred to as further evi- dence. Cliargesagto liability of Defendant, — ■ accounts, — removal as trustee. Money under settlement duly invested. said P. M. and N., and since the said P. M. went abroad to the said N. for information as to whether and how the sum of £495 was invested, or for the payment of the interest on the said sum of £495, and for the restitution and proper investment of the capital thereof, and for proper accounts of the rents and profits of the said moiety of the said premises called S., but they have respectively refused to comply with such requests. 13. As evidence of such applications, the Plaintiff M. P. avers that the said John P., in the year 1841, went with the said N. to the said P. M. at his said office at aforesaid, and inquired of the said P. M. what had been done with the said sum of £495, when the said P. M. refused to give the said John P. any information on the subject and told him he had no right to ask. Whereupon the said John P. left the office and the said N. remained with the said P. M. Shortly after- wards the said N. found the said John P. in the street and told him to the effect that the said P. M. had lent the money to a friend of his, and that he the said John P. had no reason to fear, as it would doubtless be all right. 14. As lurther evidence of such applications, the Plaintiffs crave leave to refer to two letters dated respectively the 28th of July and the 20th of August, 1851, written and sent by Messrs. , late of , the then solicitors of the Plaintiff Mary P., to the said N., and to two letters dated respectively the 25th of September and 2nd of October, 1851, written and sent by the said Messrs. to the said H. M., and to a letter dated the 9th of October, 1857, and written and sent by Mr. , of , the present solicitor of the said Plaintiffs, to the said N. 15. Under the circumstances hereinbefore stated, the said N., who is a farmer now residing at aforesaid, is bound to make good the said sum of £495, and interest thereon firom the 25th of March, 1848, and to account for the rents of the said moiety of the premises called S., and ought to be removed from being a trustee of the said Indenture of Settlement and of the said Will of the said K. K., so far as it relates to the before- mentioned devise of the said moiety of the premises at S. 16. The £500 covenanted to be paid by the said R. K. by the said Indenture of Settlement was duly paid by him to the said P. M. and N., and has since been invested by them on the security of a bond by John P., W. B. and W. H. 17. The Defendant N., or his solicitor or agent, has the proper custody or power of the said Indenture of Settlement and the several letters hereinbefore mentioned or referred to, and divers other deeds, accounts, receipts, vouchers, memoranda BILLS. 297 and paper writings relating to the said several matters afore- Account— said, whereby the truth of such matters, if produced, will Kemmaio/ appeal. Misconduct. Prayer. The Plaintiifs pray as follows : — 1. That the said Defendant N. maybe decreed to make good the said sum of £495, and may be charged with interest thereon, after such rate as the Court shall under the circum- stances think right, from the 25th of March, 1848. 2. That an account may be taken of the rents and profits of the said moiety of the said premises called S. come to the hands of the last-named Defendant, or any person by his order' or for his use since the 29th of Sep- tember, 1866, and that in taking such ac- counts the said Defendant miiy be disallowed any sums which he or his agents have im- properly and unnecessarily expended in or towards the repairs of the premises. 3. That the said N. may be decreed to pay to the Plaintiff M. P., on her separate receipt, such interest as he may be charged with as aforesaid, and what may be found due from him on taking such account of rents and profits as aforesaid. 4. That the said N. may be removed from being a trustee of the said Indenture of Settlement and of the said Will of the said K. K., so far as such Will relates to the bequest of £500 aforesaid, and to the said moiety of the said premises called S. so devised to him and tlie said P. M. upon trust as herein- Tsefore is mentioned, and that new trustees of the said Settlement and the said Will, so far as hereinbefore is mentioned, may be appointed in the respective places of the said P. M. and N. 5. That all necessary directions may be given for vesting the said tmst premises, and the right to sue in respect thereof respectively, in the new trustees to be so appointed, and o5 298 APPENDIX. for all other purposes connected with this suit. 6. That the Defendant N. may be ordered to pay the costs of this suit. 7. That, &c. XIV. Specific Bill for Specific Delivery up of Heir-looms against Executor, ^"ctZs^ omd Injunction against disposing of them. Settlement of History and settlement of heir-looms. Between Sir H. P., Baronet and Plaintiff, ^'cWk *^.' ^^^J'^'^^^-'^- ] Defendants. Humbly complaining showeth unto his Lordship Sir H. P. of , Baronet, the above-named Plaintiff, as follows : — 1. The Plaintiff is the eldest son of Sir J. P., Baronet, who was the eldest son of T. P., Esquire, of . 2. On the marriage of J. P. (who was subsequently created a baronet), which mai-riage took place in the year , the family estates were settled in effect on J. P. for life, with re- mainder to his first and other sons in tail. 3. In the month of December, , the said T. P., then residing at , sent to the said J. P., then at aforesaid, a box containing various ai'ticles, including a casket of diamonds of considerable value, and which had been for many years the property of the P. family, and were then the absolute property of the said T. P. The diamonds included in the casket con- sisted of a necklace, a pair of ear-rings and one or more brooches, all uniform in character and setting, and forming in fact altogether a single set. At or about the same time the said T. P. wrote and sent to the said J. P. a^ letter announcing that the box had been sent off, and begging that it might not be opened before the morning of Christmas-day. The letter then proceeded as follows : — " It contains the following articles to be appropriated as " hereinafter mentioned. " Two handsome embossed bowles old plate, J. P., Esqre. " A casket of diamonds in a necklace with ornaments, Mrs. P. " N.B.— This necklace is to be considered as an heir-loom in " the family, and is to be left to the eldest son and his heir BILLS. 299 " (after death of his mother) as long as the family shall con- Specific " tinue." delivery of Chattels. 4. The box and its contents were duly received by the said Delivery of J. P., and in pursuance of the directions contained in it the set chattels to of diamonds in question was delivered by him to his wife to ^ri^i"^^"^ be worn by her. Lady P., the wife of the said Sir J. P., knew " °°'"^" of the letter stated above, and of the footing on which the diamonds came into her possession, and received them on that footing, and never claimed or considered herself entitled to hold them on any other. 5. The said T. P. died in , having bequeathed all his Death oi personal estate to the said Sir J. P., whom he appointed his *'''"<"^; executor, and who proved his WUl. 6. The said Sir J. P. died in the year , having be- ana husband queathed all his personal estate, subject to some pecuniary "' ti^'*""^- legacies, to the Plaintiff, whom he appointed his sole executor, and who proved his Will on the of . 7. The Plaintiff is thus the personal representative both of Piamtift tiieir the said T. P. and of the said Sir J. P., and as the eldest son "presenta- of the latter he is now in possession of the family estates which were settled on Sir J. P.'s marriage. 8. After the death of the said Sir J. P., his widow (herein- Offer by tes- after called the Dowager Lady P. to distinguish her from Lady ^*™J° ^"" P. the wife of the Plaintiff) repeatedly offered to give up the looms. diamonds in question to the Plaintiff, as she considered Lady P. the Plaintiff's wife, the person entitled to the use of them. The Plaintiff, however, from motives of delicacy was unwilling to take them from his mother, but Lady P. did subsequently receive the ear-rings which formed part of the set, and which have ever since been and are now in her possession. The Dowager Lady P. invariably and frequently spoke of the re- maining diamonds as heir-looms which were to be delivered when she died to Lady P., the Plaintiff's wife, as the natural person to wear them. 9. The Dowager Lady P. died in the month of , having Death ami by her Will bequeathed all her personal estate to the above- ^"^°' "'^" named Defendants (her younger son and nephew) whom she appointed executors. She died at , and neither the Plaintiff nor his wife was with her when she died. Shortly Possession of after her death the said Defendants arrived at , and took ^^^^^^^ possession of her personal property there. The Defendant (executOTs*). C. S. also took possession of a tin box containing the diamonds in question, and which as the Plaintiff believes was addressed in the Dowager Lady P.'s writing to the present Lady P. 300 APPENDIX. Specific delivery 0/ Chattels. Cause of delay in de- raandmg heir-looms. Application for heir- looms. Special value of heir-looms to Plaintifl. 10. The Dowager Lady P. had not at the time of her death any property of value, and it was considered as the most desirable course for all parties that the Plaintiff should become her administrator (her executors renouncing), and should pay her debts which it was believed her personal property was hardly sufficient to satisfy, and which the Plaintiff was willing to pay without reference to its sufficiency. Until very re- cently it was understood by both the Plaintiff and the De- fendants that this course should be adopted, and the Plaintiff under the circumstances did not insist on the immediate delivery of the diamonds to him by the Defendant C. S., though he gave both the Defendants fiiU notice of his claim to them. 11. Recently however differences have arisen. The result has been that the Defendant C. S. has renounced probate of the Dowager Lady P.'s Will, though he retains the diamonds ; and the other Defendant has applied for probate of the Will, which was granted to him on the of . 12. Under these circumstances the Plaintiff has applied.to the Defendant C. S. for the diamonds in question, but the De- fendant C. S. refuses to deliver them to him. The Defendant E. P. has in fact given the Defendant C. S. notice not to part with them to the Plaintiff or to any one but himself, and he threatens and intends as soon as he obtains possession of them, to convert them into money for the beneiit of himself and the other Defendant. 13. The jewels left in the tin box (that is to say) the set of diamonds not including the ear-rings, are of considerable value ; but they have a special value to the Plaintiff in con- sequence of their having been in the family not only since but for very many years before, and in fact no price in money would be an equivalent for them to him. Prayer. The Plaintiff therefore prays a« follows : — 1. That the diamonds in question may be decreed to be delivered to the Plaintiff. 2. That the Defendant C. S. may be restrained by the order and injunction of this Honor- able Court from delivering the said diamonds or any of them to the Defendant E. P., or to any other person except the Plaintiff, and from in anyway parting with or disposing of them except by delivering them to the Plaintiff or to such person or persons as this Court may direct. BILLS. 301 3. That the Defendant E. P. may be restrained by the Order and Injunction of this Honor- able Court from taking any pi-oceedings ■whatever for the purpose of recovering the diamonds in question or any part of them, and from demanding or taking possession of or receiving them, or any part of them, and from selling, pledging, or otherwise alien- ating or disposing of such diamonds or any part of them. 4. That if necessary all proper directions may be given for securing the diamonds pending the decision of this suit. 5. [Further relief. '\ XV. Bill by Executrix of deceased Partner to wind-up Partnership Partnership and to surcharge and falsify Accounts. u^Opm'ina Humbly complaining showeth unto his Lordship P. W. of ' , widow, the above-named Plaintiff, as follows : — 1. T. W. late of aforesaid deceased died on the DeatJi and of , 1853, having duly made and executed his last "Will, S"repre-'™'' dated the 11th of , 1832, whereby he appointed the Plaintiff sentation by his sole executrix and general legatee, and the Plaintiff has p'"™'"*- since the death of the said Testator duly proved the same in the proper Ecclesiastical Court, and is now his sole legal per- sonal representative. 2. In or about the month, of , 1835, the said T. W. and ^^J^JP^^'''" the above-named Defendant M. P. of , and E. and S., piaintS, formed a partnership for carrying on together a canal business Defendant principally consisting of the purchase, carriage and sale of lime '"'' """^'^• and timber under the style or firm of the canal company at and upon certain lime-kilns, warehouses and premises at and , or at some of those places, and a canal con- nected therewith, and for that purpose they executed and pro- cured to be executed an indenture of lease dated the of , 1835, and made between of the one part and them the said Defendant M. P., the said T. W. deceased, and the said E. and S. of the other part, whereby the said did demise unto the said parties thereto of the second part, their executors and administrators, all that the canal and the 302 APPENDIX. Partnership mnding~ up -Opening Accounts , Ketirement of other part- ners. Business con- tinued by Defendant and deceased tiU 1846. Partnerehip deed in 1846. exclusive right and liberty of using the same for all purposes of trade under the conditions and restrictions of a certain act of parliament made and passed in the year of the reign of his Majesty King , intituled " An Act," &c., together with the lime-kilns and other buildings and wharf used for the purpose of the trade there then lately carried on by the said , and free access to the same and the use of the towing- paths and appurtenances to the said canal belonging, and also the dwelling-house, garden and premises in which the said Defendant M. P. then resided, and the fields or closes of land then lately appropriated for the use of the said canal therein particularly described, to hold the same premises with the appurtenances unto the said Defendant M. P., the said T. W. deceased, R. and S., their executors and administrators, from the of , 1835, for the term of twenty-one years then next ensuing, subject to tlie payment of the yearly rent of , and to the conditions and agreements therein contained on the part of the said lessees to be observed and performed. 3. The business of the said partnership was carried on by the Defendant M. P., the said T. W. deceased, and the said E. and S., under the said style or firm of the canal company, under a verbal agreement between them up to the month of June, 1838, when the said R. and S., who had only a small interest therein, retired therefrom, and sold, assigned and transferred all their shares and interest therein to the Defendant M. P. and the said T. W., and thenceforth ceased to have any share or interest in the said demised premises or in the said partnership business. 4. After the said R. and S. had so retired from the said part- nei'ship, the Defendant M. P. and the said T. W. continued to carry on the said partnership business under the same style or firm of the canal company, without any written agree- ment, up to the end of the year 1846 or thereabouts. The terms of their partnership were, that each partner should be credited in the first place with •interest on the respective amounts of his capital in the concern, after which the clear profits of the concern were to be divided between the partners in equal shares. 5. On the 16th of December, 1846, an Indenture of that date was duly made and executed between and by the said T. W. deceased, of the one part and the Defendant M. P. of the other part, whereby they the said T. W. deceased, and the Defendant M. P. did each of them for himself, his heirs, exe- cutors and administrators, covenant with the other of them, his executors and administrators in manner thereinafter men- tioned, (that is to say,) among other things, that they would be partners together in the general trade of the - — canal as BILLS. 303 theretofore carried on and in supplying such trade by vessels partnership from the 1st of January then next for and during the estate mndmg- and interest granted by the said Indenture of Lease if the said "^ra™"'* partners should so long live subject to the provisions therein- after contained for determining the said partnership. That the said business should be carried on under the firm or style of " The Canal Company," at the lime-kilns, warehouses and premises belonging to the canal trade at and . — Instating provisions as to — Divisions of profit. — M. P. to allow his then present capital to remain £6,000 in trade, and to advance further capital up to £6,000 at interest at £5 per cent. — As to advances of capital by T. W. — M. R. to have salary as manager and occupy premises. — As to accounts being made up yearly and signed to be held settled in case of death of either partner before next account day. — Surviving partner to take partnership stock and property, and pay the value of deceased parimer's share vnth interest at £5 per cent, and an allowamce at £12 per cent, in lieu of the account current from the last settlement of accounts, or from the commencement of partnership, if no accounts been settled. — Indemnity to executors and release of rights by them.'] 6. At or about the time of the execution of the last-men- Account tioned Deed, the Defendant M. P. handed to the said T. W. ^^f_ '" deceased, a statement of account from January, 1836, to the 31st of December, 1846, the first part thereof being headed " T. W., Esquire, in account with the Canal Cqi," and the second part thereof being headed " M. P., in account with " the Canal Co^," which concluded as follows, (that is to say,)— 1846. 31st. To M. P. cr. in capital ac- " count ' 1847. Jan. 1st. By cash as per agreement " to make this sum £6,000 d. 6,000 0" But such account was never settled between the Defendant —but not M. P. and the said T. W. deceased, and the said partnership settled. business was carried on by the said T. W. deceased, and the Business Defendant M. P. under the said partnership deed from the cai-riedon 1st of January, 1847, up to the death of the said T. W. de- ^'S^"„', ceased, on the 13th of June, 1853, without any account of the settled ac- said former partnership between them being ever settled be- <:™nts. tween them, and the annual statements of accounts, which, according to the provisions of the said partnership deed, ought to have been made out and settled between the said partners, were never made out or settled between them. 304- APPENDIX. Partnership winding- up — Opening Accounts, .Management by Defendant. Applications for accounts. Agreement as to accounts. Account settled on behalf of Plalntffl under a mis- take. 7. The partnership business was conducted and managed by the Defendant M. P., and the said T. W. deceased took no active part therein, and in his lifetime he frequently applied to the Defendant to render to him a proper account of the part- nership dealings and transactions, but the Defendant, save as aforesaid, neglected to comply with such applications. 8. Since the death of the said T. W. deceased, the Plaintiff, as such executrix as aforesaid has applied to the Defendant to come to a fair and just account with her of all the dealings and transactions of the said trade or business carried on by him in partnership with the said T. W. deceased, from the time when they first commenced carrying on the said business in partnership together, and several meetings took place be- tween the Defendant M. P. and Mr. Thomas T., who had under- taken to investigate the partnership accounts on behalf of the said T. W. deceased, and his estate, and at a meeting held at the office of Mr. H., at , on the 5th of May, 1854, the foUqwing Agreement in writing was signed by the said Thomas T. and the Defendant M. P., that is to say : — " 5th May, 1864. " It was agreed that the basis for the settlement of the part- " nership accounts between the late partnership of W. and P. " from the commencement thereof to the end of 1846 should " be as follows — ' The profits to be shown annually. Prom " ' the amount at the end of 1846 shall be taken interest for " ' each or charged, as the case may be, and the difference " ' equally divided. For instance, suppose M. P. has £6,000 " 'capital in the business, and the profits of the year to be " ' £1,500. Prom the £1,500 is to deducted, in the first place, " ' £300, the interest for M. P.'s capital, and the balance " ' (£1,200) to be equally divided between the parties.' " Thos. T. " M. P." 9. Some days afterwards the said Thomas T. was induced to sign a statement of account produced by the Defendant M. P., purporting to be made up to the end of 1846, under the impression that it resulted in the Defendant M. P. entering upon the new partnership under the Deed of the 15th of De- cember, 1846, commencing on the 1st of January, 1847, with a capital of £6,000 and no more in the concern, whereas the Defendant M. P. now claims to be entitled on the footing of the account so signed by the said Thomas T., to commence the new account under the said partnership deed not only with a credit of £6,000 as his capital in the said business, but also with credit for a large additional sum as due to him fi-om the said T. W. deceased as a partner in the said business, BILLS. 305 carrying interest as against the said T. W. deceased, and to partnership have the partnership accounts from the 1st of January, 1847, mntiing- made out upon that footing. "^^"S."' 10. The Plaintiff charges that the said account so signed by the said Thomas T. and relied on by the Defendant M. P., contains many overcharges against the said T. W. deceased. Account inl- and omits various items for which the said partnership ought v'^<'f<"'- to have had credit as against the Defendant M. P., and is in other respects imperfect and inaccurate, and particularly the Plaintiff charges that ever since the commencement of the said partnership between the Defendant M. P. and the said T. W. deceased in the year 1836, the said M. P. has supplied Particulars himself from the stock of the said partnership with coal for o* surcharges the use of his dwelling-house and hot-houses, and also since the month of November, 1843, for the banking house of the firm of B. H. and Company, in which he became a partner, and that in the last-mentioned account no credit whatever is given to the partnership for the price or value of such coal, which was of large amount, or for any part thereof. 11. The Plaintiff also charges that the amount of interest credited to the Defendant M. P. in the said account signed by the said Thomas T., from the year 1837 to the year 1846 inclusive, is incorrect and exorbitant, and as evidence thereof the Plaintiff charges that upon a comparison of the last-men- tioned account with the said statement of account delivered by the Defendant M. P. to the said T. W. in December, 1846, the difference hereinafter set forth in the items of interest credited to the Defendant M. P. in each year is as follows, (that is to say,) — Interest credited to Defendant Interest credited to Defendant M. P. on account signed by M. P. on account rendered Thomas T. by him in December, 1846. £ s. d. £ s. d. 1837 . . . 167 14 1837 . . 123 19 4 1846 . . . 599 18 3 1846 . . 198 14 lOJ £3,652 16 £1,812 4 6i Being a difference of £1,840 : 11«. b^d. in favour of the said Defendant M. P. on the items of interest during the period aforesaid, according to the account signed by the said Thomas T. as compared with the account stated by the De- fendant M. P. in December, 1846. 12. The Plaintiff charges that in the said two accounts there 306 APPENDIX. v}inding~ up—Opmini Accounts. is also the difference hereinafter set forth in the items of interest with which the said T. W. deceased is credited and debited in the corresponding years, (that is to say,) — Interest credited to T. W. in account signed by Thomas T. £ «. d. 1837 . . .115 16 11 Interest credited to T. W. in account delivered by De- fendant M. P. in December, 1846. £ s. d. 1837 . . . 63 6 3 1841 4 16 1841 £307 18 6 £156 15 9 Interest debited to T. W. Interest debited to T. W. 1841 . . .000 1841 . . . 8 17 1846 76 6 6 1846 £170 2 6 . 15 15 £137 6 10 Interest credited . 307 18 6 Interest credited . 156 15 9 Interest debited .170 2 6 Interest debited . 137 5 10 £137 16 £19 9 11 Chajfge of Plaintifls' equity. being a difference of a sum of £118 : 6s. \d. in favour of the said T. W. on the items of interest during the period aforesaid according to the account signed by the said Thomas T., as compared with the account stated by the Defendant M. P. in December, 1846, which said sum being deducted fi-om the aforesaid sum of £1,840 : lis. 6Jrf., shows a balance of £1,722 : 5«. 4\d. as the final result of the difference in favour of the Defendant M. P. on the items of interest during the period aforesaid, according to the account produced by him to the said Thomas T., as compared with the said account de- livered by him to the said T. W. deceased in 1846, and the Plaintiff charges that, under these circumstances, she is entitled to have all the partnership accounts taken under the decree of this Honorable Court, or otherwise to be let in to surcharge and falsify the said account signed by the said Thomas T., and to have the subsequent accounts taken under the decree of this Honorable Com-t. 13. The Defendant has in his possession or power all the partnership books and accounts, and divers deeds, instruments, books, accounts, books of account, inventories, valuations, receipts, vouchers, letters, copies of letters, memoranda, papers BILLS. 307 and writings relating or referring to or connected with or con- PaHnei'sMp taining some entl-ies relating or referring to or connected with •™*«?7 the matters aforesaid or some of them, and from which, if pro- ^akSs!^ duced, the truth of the matters aforesaid would appear. Prayer. The Plaintiff prays as follows : — 1. That an account may he taken of all the dealings and transactions of the said pai-t- nership between the said T. W. deceased and the Defendant M. P. from the original commencement thereof, and that the affairs and business of the said partnerships may be wound up and settled under the direction of this Honorable Court, and for that purpose that aJl proper directions may be given and accounts taken, and in case this Honorable Com-t should be of opinion that the account so signed by the said Thomas T. as aforesaid ought to be taken as a settled account, then that the Plaintiff may be let in to surchai-ge and falsify the same. 2. That the Plaintiff may have such further or other relief as the nature of the case may require. Copyright -Injunction -Account. XVI. Bill for an Injunction to restrain the Infringement of a Copy- right, and for an Accovnt. Between A., B. and C Plaintiffs, and J. R Defendant. Humbly complaining show unto his Lordship A., B. and C, all of Paternoster Eow, in the City of London, Booksellers and Publishers, the above-named Plaintiffs, as follows : — 1. The Plaintiffs formerly, and at the times of the publi- Description cation of the work next hereinafter mentioned, carried on and "' Plaintiffs. still carry on business in partnership together in Patei-noster Eow aforesaid as booksellers and publishers under the style or firm of " A., B. & C." 2. In the year — — an original work was published by the Plaintiffs' Plaintiffs in volumes crown octavo, under the title of ^'"*- 308 APPENDIX. Copyright i/tfringemerU Title to work. Description ■^f worfc. Description of Defendant and his pub- lication. Piracies de- scribed ; — colourable variations ; " Narrative of Twelve Years' Residence and Travels in Japan, by D." 3. The Plaintiffs had previously contracted with the said D., who was the author of the said book, for the purchase by thera of the copyright of the said work when published, and the Plaintiffs paid to the said D., as a consideration for the copyright of the said work, the sum of £ and upwards. 4. Entry of the said book was made in the Book of Registry of the Stationers' Company pursuant to the Act of Parliament made and passed in the Fifth and Sixth years of the reign of Her present Majesty, intituled " An Act to amend the Law of " Copyright." And by such entry which was made in the year , it appears (as the fact is) that the Plaintiffs were the sole proprietors of the copyright of the said book. 5. The said book consists, as its title imports, of a narrative of a twelve years' residence and travels in Japan, and the letter-press which contains the account of such residence and travels is accompanied by maps and numerous pictorial illus- trations, some of which illustrations are plates or lithographic engravings, and others woodcuts. Such plates and woodcuts were made from sketches taken on the spot by the said D., and the same were made at considerable expense to the Plaintiffs. Such illustrations were made exclusively for the said work of D., and they form part of the said book as published and re- gistered as aforesaid. 6. The said book is a very valuable one, and the same has had a very considerable sale. The price thereof to the public is . 7. The Defendant J. R. cames on business in Paternoster Row aforesaid as a, bookseller and publisher under the style of " J. R. & Company." He is the proprietor and publisher of a periodical work published in monthly parts, entitled " ." 8. Part of the said periodical " " was published on the of , and it consists of closely printed pages of a large size. of the said pages are printed under the title or head of " D.'s Travels in Japan." 9. The said pages consist almost exclusively of ex- tracts, many of them long, from the said work of D., connected together by a few short observations, and also of illustrations or woodcuts copied and taken from the said work of D., such illustrations being 20 in number. The said extracts amount to 200 pages of the said work of D., and the said illustrations are copies, with only slight and colourable variations, of cer- tain of the plates and woodcuts contained in the said work of D. BILLS. 309 10. The Plaintiffs have never given any authority or per- Copyright mission for the use of D.'s work in the said work " ," or Wnngemmt to the Defendant J. E., or to any other person for or on behalf ~—Tcmi.nt.' of or connected with the said work " ," and the use which has been made of D.'s book in the said part of " " is — unautho- illegal and totally unauthorized, and the Plaintiffs have sus- "^°*- tained great damage thereby. JJJ^^^' '""'- 11. The said parts of the said work " " are sold at Is. Defendant's each, and the Defendant J. R. has made lai-ge profits by the p^Ws. sale thereof, and especially the sale of part thei-eof. 12. [The Defendant J. R. ought to be restrained by the in- Change of junction of this Honorable Court from selling or disposing of, ^'aintifls' or causing to be sold or disposed of, any copies of part of the said work called " ," and from printing, publishing, selling or disposing of, or causing to be printed, published, sold or disposed o^ any other book, publication or work con- taining any portion of or extract from the said book called '• Narrative of Twelve Years' Residence and Travels in Japan," or any illustration, plate, woodcut, matter or thing therein contained.] Prayer. The Plaintiffs pray as follows : — 1. That an account may be taken by and under the direction of this Honorable Court of the profits which have been made by the De- fendant J. R. by the sale of part of the said work called " " so published by him as hereinbefore mentioned. 2. That the damages which have been sustained by the Plaintiffs by the sale of part of the said work called " " may be ascer- tained under the direction of this Honorable Court. 3. That the Defendant may be decreed to pay to the Plaintiffs the amount of such profits and damages. 4. That the Defendant, his servants, workmen and agents, may be restrained by the injunc- tion of this Honorable Court from selling or disposing of, or causing to be sold or dis- posed of, any copies of part of the said work called " ," and from printing, pub- lishing, selling or disposing of, or causing to be printed, published, sold or disposed of, 310 APPENDIX. any other book, publication or work con- taining any portion of or extract from the said book called " Narrative of Twelve " Years' Residence and Travels in Japan," or any illustration, plate, woodcut, matter or thing therein contained. 5. That the Defendant may be ordered to pay the costs of this suit. 6. That for the several purposes aforesaid all proper and necessary accounts may be taken, inquiries made, and directions given. 7. That the Plaintiffs, &c. History of business of Plaintiffs. XVII. Trade Mart— Billforanlnjwiction to restrain the Infringement of a Trade ^A^mM- il/a?'^, and for an Accoimt of Profits realized by the Infringe- Damages. ment. Plaintiffs. Humbly complaining show unto your Lordship S. B. and T. B., both of , near Sheffield, in the county of York, manufacturers of knives and other articles of cutlery, (carry- ing on business in partnership together under the firm of B. B. and Sons,) the above-named Plaintiffs, as follows : — 1. In the year 1750, A. B., long since deceased, the grand- father of the Plaintiffs, commenced carrying on business as a cutler and knife manufacturer at ■ aforesaid, and continued to carry on the same business down to the period of his retire- ment from business some time in the year 1798, when he relinquished the said business to and in favour of his son B. B., since deceased (the father of the Plaintiffs), and ft-om the time when the said A. B. relinquished the said business in his favour as aforesaid, the said B. B. continued to caiTy on the said business of a cutler and knife maker down to the time of his death, on the 15th of August, 1839. 2. From the death of their said father B. B., the said Plain- tiffs, with the assent of the executors duly appointed by and empowered by the due probate of his Will, and on behalf of the said executors as representing his personal estate, con- tinued to carry on Jiis said business down to the 1st of January, 1840, on which last-mentioned day the Plaintiffs, with the full assent of the said executors and under and by virtue of the said Will, took to his said business on their own account, and BILLS. 311 for their own benefit, and the said Plaintiffs have ever since TradeMark— continued and still continue to carry on his said business as I'mnction— his sons and successors in co-partnership together, under the s^^eT style or firm of " B. B. and Sons." — ' 3. The said business has been ever since its commence- ment and still is carried on on the same premises at aforesaid. 4. From a period long prior to the retirement of the said Keputation A. B. in manner aforesaid, and from about the middle of the °* A"™- last century, the said business of the manufacture of knives so established by him on the Plaintiffs' said premises at aforesaid, had become and has ever since continued to be a highly-esteemed and flourishing concern, and the articles of cutlery, and in particular the knives, so manufactured by the said A. B. and his said successors in the said business on the said premises, had long prior to and down to the time of the retirement of the said A. B., obtained and have ever since continued to enjoy a very high reputation in the cutlery ti-ade in SheflSeld and throughout England as articles of a superior make and quality. 5. In the year 1805, the said B. B., as the person then origin and carrying on the said business, devised and adopted as a dis- "'•= °* t"'*''- tinguishing mark to be stamped and affixed on knives and other articles of cutlery, manufactured and sold by him, a certain mark or stamp, consisting of the name " B. B.," com- posed of and arranged in the letters and form following (that is to say), [here give the trade mark (o),] and the said mark or — aescrip- stamp has ever since been commonly and generally used by him Hon ; and the Plaintiffs, as the chief distinguishing mai-k or stamp denoting the knives and other articles of cutlery manufactm*ed by them on their said premises at aforesaid ; and has been and stiU is stamped, or cause to be stamped by him and the Plaintiffs respectively, on articles of cutlery manufactured and sold by the said firm, and in particular on the thick part of the blades of the knives manufactured and sold by them; and such last-mentioned mark or stamp is now and has been —reputation. for many years well known to all persons engaged in the cutlery trade, and generally to all purchasers of cutlery, and in par- ticular of knives, in Sheffield and elsewhere in Great Britain and in America, and in the Australian colonies of the Crown and elsewhere, as the peculiar and distinctive mark of articles of cutlery, and in particular of knives, manufactured by the Plaintiffs as the persons representing and canying on the gaid business, established by the said A. B., and continued by the said B. B. and Plaintiffs in manner aforesaid. (a) Or " in particular and well-defined letters and form." 312 APPENDIX. Trade Mark- Injunction — Acctmni — Bamaget. Value, Sale of Plain- tiffs' goods. General Knowledge of infringe- ment ; only lately as to Defend- ant, Piracy of trade-mark by Defendant on goods sold or made by him, and re- semblance of goods to Plaintiffs', 6. The articles of cutlery, and in particular knives, manu- factured by the PlaintiflFs or their said firm, and bearing their said stamp or mark impressed thereon, are and for a long time have been held in very high estimation, and by reason of their superior quality and workmanship command and for a long time have commanded a ready and extensive sale throughout England and the said United Kingdom generally, and in America and the Australian colonies of the Crown and else- where, and the Plaintiffs have for many years past yearly derived large profits from the sale of such knives and other articles of cutlery so manufactured by them and bearing such last-mentioned stamp or mark, being the stamp or mark of their said firm as aforesaid, which have been sold by them in large quantities to merchants, factors and others for exporta- tion to Australia, America and elsewhere, or for sale in Eng- land and other parts of the United Kingdom, 7. By reason of the great excellence of the Plaintifis' said manufacture and the superior quality thereof, the only prize medal awarded by the Commissioners of the Grreat Exhibition in Hyde Park, London, in the year 1851, for the best specimen of the manufacture of knives, was awarded to the Plaintiff's in respect of knives manufactured by them and bearing their said mark or stamp. 8. The Plaintiff's have for some considerable time past been aware that articles of very inferior quality, being knives manufactured and got up in close imitation of the Plaintiffs' said manufacture, and marked or stamped with marks in close and fraudulent imitation of the trade marks so used and impressed by the Plaintiffs and their said firm on articles of their manufacture, have found their way into the market, and have on many occasions and in very numerous instances, been passed off' on and sold to unwary purchasers and others, as articles of the genuine manufacture of the Plaintiffs' said firm, to the serious detriment and injury of the Plaintiffs, But they have only recently ascertained and obtained satis- factory evidence of the facts next hereinafter set forth. 9. The said Defendant B, B, has been for some considerable time past and still is in the habit of selling and of manu- facturing knives of a similar kind, made and got up in close outward resemblance to and imitation of the articles of that description manufactured and sold by the Plaintiffs and their said firm, but not made by them ; and the said Defendant, in order to injure and defraud the Plaintiffs, and with a ^dew of selling and passing off such spurious articles as being the general manufacture of the Plaintiffs' said firm, stamps and impresses, or causes to be stamped and impressed on the blades of the knives so sold or manufactured by him, certain BILLS. 313 marks or stamps devised and contrived in close and fraudulent TradeUark— imitation of the Plaintiffs' said trade marks ; and in particular ifmncHon— it is the invariable or general custom of the Defendant to ^^^7" stamp or impress, or cause to be stamped or impressed, on the blades of each knife so sold or manufactured by him, a mark or stamp devised and contrived in close and fraudulent imitation of the said mark or stamp of the Plaintiffs' said firm. And such counterfeit and fraudulent mark or stamp contains and consists of the name of B. B., in a form and arrangement of letters identical with the form and arrangement of letters used by Plaintiffs and their said firm in their said mark, and is varied from the Plaintiffs' said genuine mark or stamp merely by the addition of a scroll surrounding the said letters, and sometimes, but not always, by the addition of a crown placed above the said letters. 'The said counterfeit and fraudulent mark or stamp is placed on the thick part of the blade of the knives so sold or manufactured by the Defendant, in the pre- cise position occupied by the Plaintiffs' said genuine trade mark on the blades of the knives manufactured by Plaintiffs in manner aforesaid. 10. The knives so sold or manufactured and marked or imitations stamped by the Defendant are calculated to deceive and mis- "Jj^^^g^g lead, and by reason of the fraudulent conduct of the Defendant have very extensively deceived and misled, and are daily de- ceiving and misleading, unwary purchasers and others, by inducing them to buy the same as and for articles of the genuine manufacture of the Plaintiffs' said firm. 11. Large quantities of knives so sold or manufactured by Large sales in the Defendant, and stamped or impressed by him with the said ^^^ counterfeit and fraudulent mark, have been for a considerable °^ time past and still are, by the Defendant or through his means or by his contrivance, offered for sale and actually sold to factors and other persons engaged in the sale and exportation of knives and articles of cutlery, and passed off on unwary purchasers as and for the genuine articles of the Plaintiffs' manufacture. And the Defendant has by means of such fraudu- lent conduct from time to time wrongfiiUy realized and obtained large profits. And the Plaintiffs humbly submit that the De- Defendant fendant ought to account to them for the amount of all profits <"isi>t to so realized or obtained by him. 12. The knives and other articles so sold and manufactured ininry to_ by the Defendant as last aforesaid are very inferior in quality fJ^^'^^^J, and workmanship to the articles of the same class manufactured by the Plaintiffs, and have been and daily are, by reason of their close outward resemblance to the latter, the means of casting great and unmerited discredit on the Plaintiffs' genuine L. P 314 APPENDIX. Damaga. Evidence thereof. Applications for redress, &c. TradeUarii— manufacture of such articles, and the Plaintiffs have thereby AcmS- suffered great loss and damage in their said business. And as evidence thereof the Plaintiffs allege that in some instances factors who had been supplied by the Plaintiffs with knives of their genuine manufacture, and marked with their said stamp or mark in manner aforesaid, for sale among the trade and the public, have, by mistake, brought to the said Plaintiffs articles of the same kind of the manufacture of the Defendant, and bearing the said counterfeit and fraudulent mark or stamp so used by him as aforesaid, requiring the Plaintiffs to take back such last-mentioned spurious articles, which had been returned on the hands of the said factors by their customers as goods of too bad a quality to be used or retained, in the ftill belief on the part of the said purchasers, and of the said factors them- selves, that the goods so returned were some of the genuine articles manufactured by the Plainti£b, and supplied to the said &ctors for sale in manner aforesaid. 13. The Plaintiffs, since they have ascertained the facts hereinbefore set forth, have applied to the said Defendant, and requested him to discontinue his said fi-audulent practices, and in particular to refrain from selling or offering for sale knives or other articles of cutlery marked or stamped with such coun- terfeit and fraudulent mark or stamp as aforesaid, and from marking or stamping any knives or other articles of cutlery manufactured or offered for sale by him with the said counter- feit and fraudulent mark or s.tamp ; and Plaintiffs have also requested the said Defendant to come to an account with them of the profits realized by him from the sale of articles stamped or impressed with the said counterfeit and fraudulent stamp or mark, or otherwise by such fraudulent practices as aforesaid, and to pay and make good to the Plaintiffs the amount of such profits so. realized by the said Defendant, but he refuses or neglects to comply with such requests. 14. The Defendant has in his possession, custody or power, or in the possession, custody or power of his attomies, soli- citors or agents, divers books, books of account, accounts, receipts, vouchers, invoices, bills of parcels, letters, notes, papers, writings and documents relating to the matters herein- before set forth, whereby, if produced, the truth of such matters would appear, and Plaintiffs submit that Defendant ought to produce the same for the usual purposes. Prayer. The Plaintiffs pray as follows : — 1. That the said Defendant B. B., his agents, servants and workmen, may be severally and BILLS. ' 315 perpetually restrained by the order and injunction of this Honorable Court from stamping or impressing, or causing to be stamped or impressed on knives or any other articles or article of cutlery manufactured or sold by or for him or them, and from manufacturing and selling, or causing to be manufactured or sold, any knives or other articles of cutleiy marked or stamped with the said fraudulent and counterfeit mark or stamp, or any other mark or stamp com- posed of or containing the name of " B. B.," in such form and arrangement of letters as hereinbefore set forth, or any mark or stamp composed of or containing the name of " B." in any form and arrangement of letters iden- tical with or similar to the form and arrange- ment of letters adopted and used by the Plaintiffs and the said firm and 'their said predecessor B. B. in their said pecvdiar and distinctive mark or stamp in manner afore- said, or any other mark or stamp in imita- tion or counterfeit of the marks and stamps, or any of the marks or stamps used by the Plaintiffs on the knives and other articles of cutlery manufactured by them, or any mark or stamp contrived or devised or calculated or intended to mislead or entrap unwary purchasers or others into purchasing the knives or other articles of cutlery bearing such imitative or counterfeit mai-ks or stamps, as or for articles of the genuine manufacture of the Plaintiffs and their said firm. That an account may be taken by the decree and under the direction of this Honorable Court of the profits realized and received from time to time by the said Defendant B. B. from the sale of knives and other articles of cutlery manufactured or sold by him, and bearing the said fraudulent and counterfeit mark or stamp, or any other mai-k or stamp in imitation or counterfeit of the marks or stamps used by the Plaintiffs and their said firm to distinguish the knives and other articles of cutlery of their manufacture, and that the said Defendant may be decreed p2 316 APPENDIX. to pay or account to the Plaintiflfs for the whole amount of the profits so realized or received by him as aforesaid, and that for the purposes last aforesaid all necessary accounts may be taken, inquiries made, and directions given by and under the decree of this Honorable Court. 3. That the loss and damage sustained by the Plaintiffs in their said business by reason of the said knives and other articles of cutlery of an inferior description so sold and manufactured by the Defendant being stamped with the said fraudulent and coun- terfeit stamp may be ascertained, and that the Defendant may be ordered to pay the amount thereof to the Plaintiffs. 4. That the Plaintiffs, &q. Patent — Trade Name — Accmmt — Cvm'pemaXwn. Letters patent. XVIII. Bill for Injunction to restrain Infringement of Patent and use of Plaintiff's Name, for Account of Profits made, amd for Corrvpensation. 1. By letters patent under the great seal of Great Britain, bearing date at Westminster the day of December, in the tenth year of the reign of her Majesty Queen Victoria, and in the year of our Lord 18 — , setting forth a petition of the Plaintiff J. B., which represented amongst other things that in consequence of a communication firom a foreigner residing abroad he was in possession of an invention of " Improvements " in machinery for ," her Msyesty did for herself, her heirs . and successors, give and grant unto Plaintiff J. B., his execu- tors, administrators and assigns, her especial licence, full power, sole privilege and authority to make, use, exercise and vend the said invention within England, Wales and the town of Berwick-upon-Tweed, and in all her Majesty's colonies and plantations abroad, and in the islands of Jersey, Gruemsey, Aldemey, Sark and Man, for the term of fourteen years from the date of the said letters patent, upon certain conditions in the said letters patent set forth, and amongst others that the said letters patent should be void if Plaintiff should not par- ticularly describe the nature of the said invention, and in what manner the same was to be performed, by an instrument in . writing under his hand and seal, and cause the same to be BILLS. 317' [enrolled in her Majesty's High Court of Chancery] (a) within J^'^~ six calendar months next after the date of the said letters patent. _!^Sto 2. A specification of the said invention, the subject of the com^Sm. said letters patent, was duly made and enrolled within the -; ;• period prescribed for that purpose in and by the said letters Speciflcatiou. patent, and the said specification so made and enrolled has since been amended by a disclaimer of part thereof, bearing Disclaimer. date the day of April, 185 — , and by another disclaimer of other part thereof, bearing date the day of July, 185 — , and which two several disclaimers were duly entered and filed on the of , pursuant to the statute in that behalf made and provided. 3. The invention, the subject of the said letters patent, and pcscription of which invention is hereinafter for brevity referred to as " the i"™"''""- ' ' said patent invention," consists, and in the said specifica- tion so made and enrolled as aforesaid, and as amended by the said two several disclaimers as aforesaid, is described as con- sisting in IdesoripUon in specification]. And the specification, after describing in detail by reference to various plates and drawings annexed to or accompanying the said specification, the various parts of the said machinery and its mechanism, construction and operation, concludes with a claim, which in part is as follows, viz. — [state claim.'] i. The said invention was, at the date of the letters patent Novelty ana granted for the same, as aforesaid, new as to any public use or ™''*'ty' exercise thereof within any part of her Majesty's realm, and was a useful invention, and the conditions on which the said letters patent were granted have been complied with, and the said letters patent are now in full force and unrevoked, and in nowise void or voidable. 5. Plaintiffs are father and son, and Plaintiff J. T. B. has for Title of some time past carried on and is now caiTying on business as Piaii'tiis- a manufacturer and seller of machines constructed accord- ing to the said patent invention, under arrangements made between Plaintiffs, such business being carried on under the style of " J. T. B. & Co." Plaintiff J. T. B. has, and at the time of the wrongiul acts on the part of the Defendants herein complained of had, an equitable interest in and under the said letters patent, Plaintiff J. B. having the sole interest therein at law, and the PlaintiflT J. B. at the time of such wrongful acts had a pecuniary interest in the result of the Plaintiff J. T. B.'s manufacturing and trading operations in machines ; and machines made and arranged in accord- ance with the said patent invention have been extensively (a) Now " filed in the Great Seal Patent Office.'' 318 APPENDIX. Patent- Trade Name — Acarnnt — CompenMtion. Sale and reputation. 2^0 one else entitled. Defendants. Mcan-s of copying. General ctiarge of infringement and concert. manufactured and sold by Plaintiff J. T. B., and are highly useful articles, continually gaining favour with the public, and commanding an increased sale ; and excepting the Plaintiff J. T. B. no person has ever been licensed by Plaintiff J. B. to make or sell machines in accordance •with the modifica- tion of the said patent invention, which has been adopted by the Defendants in the machines made by them in viola- tion of the rights and privileges granted by the said letters patent as hereinafter stated and charged. 6. The Defendant C. D. is an agent for the sale of , having a shop and carrying on business at . 7. The Defendant E. P. is a working engineer, mechanic and tool maker, having and carrying on business at a small workshop or factory situate at . 8. The Defendant K. L. is a working engineer, mechanic and tool maker, who for some time previously to the 1st of August last was employed by Plaintiff J. T. B. as foreman or superintendent in his business of machine manufacturer, and in that capacity had access to his stock of materials, which included several parts of the mechanism and apparatus of which machines manufactured by him in accordance with the said patent invention were composed, and had full oppor- tunity of becoming acquainted with all the details of the worunanship and apparatus necessary to be used in the con- struction of machines according to the s^d patent in- vention ; and the said last-named Defendant, having been discharged from his service on or about the said 1st of August last, has since become associated or engaged with the other Defendant E. P., either as partner, servant, or otherwise, in the manufacture and sale of tools and implements at aforesaid. 9. The several Defendants hereto have, in concert and col- lusion together for their mutual benefit or advantage, without any leave or licence from, and in fi-aud and wrong of Plaintiffs, and to their great injury, been trafficking in the sale of machines as being machines of Plaintiffs' manufacture, which, to the knowledge of the Defendants, have not been manufac- tured by Plaintiffs or either of them or by any person by or with the licence or authority of Plaintiffs or of either of them, and the machines in the sale of which the said De- fendants have been trafficking have, in fraud and wrong of Plaintiffs and to their great injury, been made and constructed either by the said Defendants themselves or under their direc- tion, without any leave or licence of Plaintiffs according to the said patent invention, and in close imitation of machines which have heretofore been constructed by Plaintiff BILLS. 319 J. T. B. according to the said patent invention, and have been Paunt— sold by him to the public, and the said defendants have not fSuSm only nnlawfiilly used Plaintiff J. T. B.'s trade name and style —Account— in selling machines as being of his manufacture which have Cbi^yeMoHon. not been manufactured by him, but they have also in the con- use of struction and sale of the machines which they have sold, Plaintiffs violated Plaintiffs' patent rights and privileges, and under the '"^^'^°"'- circumstances herein appearing, Plaintiffs are now apprehen- Apprehended sive that the said Defendants will severally proceed to a J^^^'" repetition of acts similar to their wrongful acts hereby com- plained of, unless restrained from so doing by the order and injunction of this Honorable Court as hereinafter prayed. 10. Plaintiffs charge that on the 25th day of August last past, Particaiar the Defendant C. D. exposed for sale at his said shop, at inMngemenu aforesaid, a machine bearing thereon an inscription in metal letters of the trade, name or style of Plaintiff J. T. B., as if the same were made by him, the same being in fact made in accordance with the said patent invention, or with colorable deviations therefrom, or the substitution of mere mechanical equivalents for the same or some parts thereof, though not by Plaintiffs or by any person by their or either of their licence or authority, and in close imitation of machines, which Plaintiff J. T. B. has manufactured according to the said patent invention and extensively sold ; and that the said machine which the said Defendant had so exposed for sale at his shop, on the said 25th day of August, was then and there repre- sented by the said Defendant as being a machine of Plaintiffs' manufacture, and the said machine was then and there actually sold by him to one P. Q., as being a machine of Plaintiffs' manufacture, for the price or sum of . 11. Plaintiffs charge that the said Defendant has since the said 25th day of August had in his possession and exposed for sale other machines, precisely similar to the machine so sold to the said P. Q., without the licence or authority of the Plaintiffs, or either of them. 12. Plaintiffs charge that the said machines so exposed Knowingij for sale at the shop of the said Defendant C. D. were either 'J<'"<^- made by or under the direction or procurement of the said Defendants or some or one of them, and that if the same were not made by or under the direction or procurement of the said Defendant C. D. himself, they were to his knowledge made by or under the direction or procurement of the other Defendants, and supplied by them to him for use or sale in fraud and wrong of Plaintiffs, as regards the use of the trade name or style of Plaintiff J. T. B., and as being machines of Plaintiffs' manu- facture, and also as regards the violation of the said patent rights and privileges. 320 APPENDIX. Patent- Trade Name ParticuJar part of machine UBed ■with Plain- 'tifFs name on it. Other De- fendants making for sale. and selling. Possession of copies of patent article. and mechan- ism to be used in them. 13. Plaintiffs charge that the cast-iron cam wheel and frame, which have been used by Plaintiff J. T. B. in the construction of machines of his manufacture, and which cam wheel bears on its surface in a circle of raised metal letters the in- scription "J. T. B. and Co., Patentees," have in fact been taken and used as the model from which the cam wheel and frame of the machine which was sold at the shop of the said C. D. as aforesaid was cast, and that several parts of the mechanism and apparatus used in the machine so sold are so identical with parts of the mechanism and apparatus used by Plaintiff J. T. B. in machines of his manufacture, that they are not distinguishable from one another, and that in point of feet some of the mechanism and apparatus of Plaintiff J. T. B., made from patterns and dies belonging to him, has been surreptitiously used in the mannfactiu-e of the machine which was sold at the shop of the said C. D. as aforesaid. 14. Plaintiffe ftirther charge that the Defendants E. F. and K. L. are now engaged in making and constructing, and intend to sell under the trade name or style of Plaintiff J. T. B. and Co., as being machines of the manufacture of Plaintiffs, or one of them, and constructed in accordance with the said patent invention, and in imitation of machines heretofore constructed by Plaintiff J. T. B. according to the said patent invention, machines, which are exactly similar to, and counterparts of, the said machine which was sold to the said P. Q. at the shop of the said C. D. on the said 25th day of August, and that the said Defendants E. F. and K. L. have already sold and disposed of machines of exactly similar construction, under tiie trade name or style of Plaintiff J. T. B. and Co., to various persons, as being of Plaintiffs' manufacture, which were not manufactured by Plaintiffs, or either of them. 16. Plaintiffs charge that the said Defendants have in fraud and wrong of Plaintiffs made considerable gains and profits by the sale or other disposition, in violation of Plaintiffs' patent rights and privileges, of machines which were not manu- factured by Plaintiffs or either of them, and by representing the same as being of Plaintiffs' manufacture, and by using the trade name or style of Plaintiff J. T. B. in the manufacture and sale of macmnes ; and that the said Defendants have in their possession or power machines made according to the said patent invention, in violation of such rights and privileges, and in imitation of and bearing inscriptions thereon from which they purport to be, though they in fact are not, machines manufactured by Plaintiff^ J. T. B., and that the said Defend- ants have in their possession or power mechanism and appa- ratus suitable for, and calculated and intended to be used in and as part of machines, and for no other purpose, which, BILLS. 321 Patent — Trade Navie — Ivjunction — Account — Compensation. Inferior articles and consequent damage. Conversations and admis- sions. when constructed, would be constructed according to the said patent invention, and cannot lawfully be made or used without Plaintiffs' licence or authority. 16. Plaintiffs charge that the machines which have been sold by the Defendants as being machines of Plaintiffs' manufacture, though similar to the machines of Plaintiff J. T. B.'s manufacture, are in many respects inferior in point of workmanship to the said last-mentioned machines, and have been sold by the said Defendants for much less than the price at which Plaintiff J.~ T. B. has been in the habit of selling machines of his manufacture, and that both the Plaintiffs have been injured by all the wrongful acts of the Defendants herein complained of, and will be further injured by a continuance thereof, and that the Defendants ought to compensate Plaintiffs for the damage sustained by Plaintiffs by reason of the De- fendants' wrongful acts in the premises as well as to account for the gains and profits which the Defendants may have made therefrom, and that in fact such gains and profits would be an inadequate compensation to Plaintiffs for the damage they have sustained by reason of the Defendants' wrongful acts hereby complained of. • [17. Plaintiffs further charge that the said Defendants or some of them have had divers conversations and communica- tions with each other and with various other persons relating to the matters and things herein stated and charged, and in which conversations and communications the said Defendants, or some of them, have or has admitted, stated or referred to the said matters and things as true, and have or has written, sent and received various letters to and from each other and various other persons relating to the said matters and things in which they, or some or one of them, have or has admitted, stated or referred to the same or some of them as true.] 18. Plaintiffs ixirther charge that the said Defendants have Documents. in their, or some, or one of their possession, custody or power, divers journals, day books, waste books, ledgers, cash books, order books, letter books, bankers' pass books, cheques, cheque ends and counterfoils of cheques, deeds, drafts of deeds, re- ceipts, accounts, invoices, bills of exchange, promissory notes, letters, copies of letters, vouchers and other documents, papers and writings, relating or referring to the matters and things herein stated or charged, whereby the truth thereof would appear. Pray&r. The Plaintiffs pray as follows : — 1. That the Defendants C. D. and E. F. and K. L., their agents, servants and workmen, p5 322 APPENDIX. may be restrained by the order and injunc- tion of this Honorable Court until the hearing of this cause, and thenceforth per- petually by the decree of this Court from selling or oflfering or exposing for sale, or disposing of or parting with the custody of any machines bearing the trade name or style of Plaintiff J. T. B., which have not been manufactured by him, or as being manufactured by Kaintiffs, or either of them, which have not been manufactured by them, or one of them, or by some person or per- sons by their licence or authority, and from manufacturing, selling or disposing of or parting with the custody of, unless with the leave or licence of Plaintiffi, any ma- chines made in accordance with the said patent invention, or with colorable devia- tions therefrom, or with the substitution of mere mechanical equivalents for the same or some parts thereof, and any mechanism or apparatus calculated or intended to be used in or as parts of any such machine or machines. 2. That an account may be taken, by and under the direction of this Honorable Court, of the gains and profits which Defendants or any or either of them have made as aforesaid, and that the Defendants may be made to ^ account for such gains and profits to Plaintiffs. 3. That the said Defendants may also be com- pelled to compensate Plaintife for the da- mages they have sustained by the wrong&l acts of the Defendants in the premises, so far as «uch gains and profits, for which they may be decreed to account as aforesaid, may be an inadequate compensation to Plaintiffs for the same ; and that such da- mages may be assessed and ascertained tmder the mrection and order of this Court. 4. That the Defendants may be decreed to deliver up to Plaintiffs aU machines, mechanism and apparatus in the possession or power of the Defendants, or any or either of them, which have not been made by Plaintifife or one of them, or by their licence or authority, BILLS. 323 and which have been made according to the B_aid patent invention, or with such devia- tions or substitutions as aforesaid, or which are calculated and intended to be used as aforesaid, or which have the trade name or style thereon of the Plaintiff J. T. B., or in any way purporting to be articles of the manufacture of Plaintiffs, or either of them. 6. That the Defendants may pay all the costs of this suit. 6. That Plaintiffs, &c. llf the patent Jias hem estahlnhed at km that should be stated.'] XIX. Bill to restrain Obstruction of Light to a DweUing-House, and infmciion— for Damaaes. Light— " Damages. 1. Plaintiffs are the owners in fee simple of a freehold messuage or dwelling-house situate in Square, , in the county of Middlesex, and generally called or known by the name of No. 3 in the same square. 2. The Defendants are the owners or occupiers of or other- wise entitled to or interested in a messuage or dwelling-house situate in , in the said county of Middlesex, generally called or known as No. 13 in . 3. The yards, offices and outbuildings belonging or appur- Bciative tenant to, or occupied with the last-mentioned messuage or positions of dwelling-house, extend backwards or towards the north up to anaDetend- within a few feet of the back or external wall, being on the ai"s' pre- south side of the said messuage or dwelling-house. No. 3, Square, belonging to Plaintiffs. 4. The space which intervenes between the back or south external wall of Plaintiffs' said messuage or dwelling-house, No. 3, Square, and the said offices, yards and outbuildings belonging or appurtenant to or occupied with the said mes- suage or dwelling-house. No. 13, , belonging to the said Defendants, consists of an open or vacant piece of freehold ground of which Plaintiffs are also the owners in fee simple, of an oblong form, measuring about forty feet from west to east, and about eight feet two inches from north to south on the east side thereof, and about ten feet four inches from north Title. 324 APPENDIX. Ii\iunction — Light— Damages. Enjoyment of ancient lights. Kew build- ings by Defendants. WaU higher than before. Obstruction of light. Former height of wall. Kotice to desist. to south on the west side thereof, and the said piece of ground is separated from the said oflSces and buUdings belonging or appurtenant to, or occupied with the said messuage or dwelling- house belonging to the Defendants by a boundary wall, also the property of Plaintiffs, measuring seven feet ten inches in height, or thereabouts, from the surface of the ground. 5. There are several windows or openings for the admission of light and air in the said back or south external wall of the said messuage or dwelling-house. No. 3, Square, belong- ing to Plaintiffs, where the same abuts on the said vacant piece of ground, and their predecessors in title and their tenants of the said messuage or dwelling-house have for the last twenty years and upwards actually had and enjoyed with- out interruption the access and use of light and air for and unto the said messuage or dwelling-house through the said windows or openings. 6. The Defendants some time since commenced to make and are still making alterations in and additions to the said messuage or dwelling-house, No. 13, , and the offices and buildings belonging or appurtenant thereto or occupied there^ with, and on the 12th of February instant they commenced raising or heightening a wall theretofore existing on the ex- treme boundary line of their property where the same abuts upon Plaintiffs' said boundary wall, and the said Defendants have since raised or heightened the said wall which they so commenced to raise or heighten four feet two inches higher than it was at the time at which they so commenced to raise or heighten the same, or than it was or ever has been at any time heretofore, and by so doing the said Defendants have obstructed the radiation of light to and in the direction of several of the said windows or openings in the back or south external wall of Plaintiffs' said messuage or dwelling-house, No. 3, Square aforesaid, and have thereby sensibly dimin- ished the light which Plaintiffs and their said predecessors in title and their tenants have been accustomed and are of right entitled to have, use and enjoy to and for the said messuage or dwelling-house through or by means of such windows or openings. 7. Prior to the said Defendants so commencing to raise or heighten the said waU which they have so raised or heightened as aforesaid the same did not exceed the height of Plaintiffs' said boundary wall by more than one foot ten inches. 8. Upon the said Defendants so commencing to raise or heighten such wall as aforesaid, the Defendant A. B. who acts apparently as the proprietor of the said messuage or dwelling- house, No. 13, , and has been personally actually engaged BILLS. 325 in giving directions for the raising or heightening of the said Imnction— waJl, was requested by Mr. on behalf of Plaintiffs to de- i^M— sist from so doing, but the said Defendants notwithstanding """"f^ - such request continued to raise and heighten the said wall, and the said Defendant A. B. asserted to the said Mr. that he Refusals. the said Defendant considered he was entitled so to do, where- upon the firm of Messrs. , as Plaintiffs' solicitors, wrote and sent a letter to the said Defendant A. B. requesting him to pull down and remove the addition which he had then made to the said wall, but the said Defendants have not complied with such request, and in an interview which Mr. , a member of the said firm, had with the said Defendant A. B. on the 19th of February instant, the said Defendant asserted that he considered that he had a right to raise the said wall as he thought proper. 9. The said wall as now raised and heightened by the said Apprehension Defendant is in an unfinished state and apparently constructed obstruction. with the view and intention of its being carried up stUl higher, and to support a roof, and Plaintiffs have reason to apprehend and do apprehend that the said Defendants, unless prevented from so doing by the order and injunction of this Honorable Court, will proceed stUl fiirther to raise or heighten the said wall and construct a roof upon or against the same. 10. Plaintiffs charge that such works if done will still ftirther lessen and diminish the light which they and their tenants are entitled to have and enjoy for their said messuage or tenement, No. 3, Square aforesaid, through and by means of the said windows or openings in the south external wall thereof, and will greatly aggravate and increase the injury and inconvenience which Plaintiffs and their said tenants have already in respect of the access and use of light for and unto the said messuage or tenement sustained at the hands of the said Defendants by reason of the works already executed by them and hereby complained of. Prayer. The Plaintiffs pray as follows : — 1. That the Defendants A. B. and C. D., their servants, agents and workmen, may be re- strained by the order and injunction of this Honorable Court from further raising or heightening or placing any roof upon or against the wall adjoining to and on the south side of the Plaintiffs' boundary wall, which divides the property of Plaintiffs from the property of or occupied by the Defendants 326 APPENDIX. situate at the back or rear of Plaintifis' said messuage or dwelling-hause, No. 3, Square, in the county of Middlesex, and from permitting or continuing the said wall so adjoining to and on the south side of PlaintiflFs' said boundary wall, to remain at a greater height than one foot ten inches above such boundary wall, or at any height exceeding such height above such boundary wall as may obstruct or diminish such access or use of light for and imto the said messuage or dwelling-house. No. 3, Square afore- said, by means of the windows or openings in the south external wall thereof as would be had or enjoyed if the said wall so adjoin- ing to and on the south side of Plaintiffs' said boundary wall had been allowed to re- main at a height not exceeding one foot ten inches above such boundary walL 2. That such injunction may be made perpetual by the decree of this Court. 3. That the damages suffered by the Plaintiffs by reason of the obstruction of the access of light to their said dwelling-house and pre- mises so caused as aforesaid by the heighten- ing of the said wall already effected in manner aforesaid by the said Defendants, may be assessed in such manner as the Court shall direct, and that the Defendants may be ordered to pay the amount of the said damages to the Plaintiffs. 4. That the Defendants may pay the costs of this suit. 6. That, &c. XX Interpleads Bill of Interpleader and Injunction to stay Action at Law. to'JtayA^. Between A. B Plaintiff, and C. D. and E. P. . . Defendants. Demise to 1. By an Indenture of Demise dated the of , H. K. piaintifF. (deceased) demised a certain messuage, &c. [giving description BILLS, 327 of parcels], together with the appurtenances unto the Plaintiff, interpleader his executors, administrators and assigns, for a term of iTftm^Aciim. years, at and under the yearly rent of £ , and the Plaintiff thereupon entered into possession, and has since continued and is now in possession of the said messuage and premises under the said Indenture. 2. The Plaintiff is informed and believes that by some settle- Settlement in ment or settlements executed by the said H. K. during his DeSants— life, the said messuage and premises were settled for the benefit particulars of tlie said H. K. during his life, and after his death for the >"itaown. benefit of the said C. D. and E. F. or one of them, of the par- ticulars of which the Plaintiff is ignorant. 3. The said H. K. died on or about the of last. 4. The yearly rents for the said messuage and premises were ^^?^"l' °'- duly paid by the Plaintiff to the said H. K., up to and in- ana death. elusive of the rent which became due on the of last. 5. Since the said H. K. died, that is to say, on the ot Suiscqueut , the sum of £ , being one year's rent for the premises, '™* ^^^' has become due and payable under the said Indenture of Demise. 6. The Defendant C. D. claims to be entitled under the said Claim ot settlement or settlements to the yearly rent reserved by the '™'' ^^ ^' "' said Indenture of Demise, and on or about the of sent to the Plaintiff a notice in writing claiming to be entitled as last aforesaid, and demanding that the said sum of £ rent so now due as aforesaid, and aU future rent to become due under the said Indenture of Demise should be paid to the said Defendant C. D., and threatening to take legal proceed- and threat ings against the Plaintiff for the recovery of the said sum of '° ™'- £ rent, if the same were not paid forthwith. 7. The other Defendant E. F. also claims, under the said Claim of settlement or settlements, to be entitled to the said rent '™' *'^ ^- ^' reserved by the said Indenture of Demise, and on or about the of sent to the Plaintiff a notice in writing claiming to be entitled as last aforesaid, and requiring the Plaintiff to pay to the said Defendant E. P. or to his authorized agent, all rent then due and thereafter to become due in respect of the same premises, and the said Defendant E. P. threatens and and threat intends to bring an action against the Plaintiff for the recovery *° ™^- of the said sum of £ rent. 8. The Plaintiff submits that the said Defendants ought to offer to do interplead between themselves ; the Plaintiff hereby offering equity. to pay the said sum of £ rent into Court. 328 APPENDIX. Prayer. The Plaintiff prays as follows : — 1. That the Defendants may be decreed to inter- plead and settle between themselves their rights in respect of all rent now due and henceforth to become due under the said Indenture of Demise, the Plaintiff hereby offering to pay the same as this Honorable Court shall direct. 2. That the Defendants may in the meantime be restrained by the order of this Honorable Court from commencing or prosecuting any action or actions at law or other legal pro- ceedings against the Plaintiff for the re- covery of the said sum of £ rent, or any rent hereafter to become due and payable under the said Indenture of Demise, or in respect of the said messuage and premises or otherwise concerning the matters afore- said. 3. That, &e. [An affidavit denyiiig collusion hetween the Plaintiff (or, if the BUI is hy an officer of a company, between the Company) and either of the D^eadants should be appended.^ XXI. Supplemental Supplemental Bill. ^ Between A. B. and CD. ... Plaintiffs, and E. F. and .... Defendants. Supplemental Bill of Complaint. To the Eight Honorable, &c. Humbly complaining show unto your Lordship A. B., of , and C. D., of , the above-named Plaintiffs, as follows : — Original biu. 1. On the of , Plaintiffs exhibited their ori^al BUI of Complaint in this Court against the above-named De- fendant E. F. as Defendant thereto, thereby stating as or to the effect following, (namely,) That E. F., &c. [setting forth the statements of the Bill sufficiently to make this Bill intelligible as against the new Vefmdants.'] And it was by the said Bill prayed [setting forth the Prayer of the original Bill sufficiently (as before)'}. BILLS. 329 Proceedings under decree. 2. The suit so commenced ■was prosecuted to a hearing on Supplemental motion for a decree before his Honor Vice-Chancellor Wood, ■^''"- on the of , 186 — , when his Honor was pleased to Decree. declare [setting forth the Decree^. 3. The said suit was reheard on the of , 186 — , Appeal. before his Lordship the Lord High Chancellor of Great Britain, on an appeal motion made on behalf of the said Defendant E. F. against the said decree made by his Honor Vice-Chan- cellor Wood, on the of , 186 — , so far as it declai'ed that [^setting forth the part of the Decree appealed against]. And his Lordship on such rehearing did not think fit to make any order on the said application, and did order that the said . Defendant E. F. should pay to the Plaintiffs their costs of the said application. [^Then follow inquiries and further proceedings under the De- cree under which {in the case before us) it appeared (among other things) that the other Defendants to this Bill were in- terested, and that a sale directed hy the Court could not he made unless they were made parties and hound hy the Decree.^ Plaintiffs by way of supplement show as follows : — [Here follow supplemental statements, entitling the Plaintiffs to the supplemental relief against E. F., and charging that the other Defendants are necessary parties to this suit-l Prayer. Plaintiffs pray as follows : — 1. That Plaintiffs may have the benefit of the said original suit and the proceedings there- under as against the Defendants [other than E. F.], and that the decrees of the of , 186—, the of , 186—, and the of , 186 — , maybe carried into execution between the parties to this suit as between the parties to the said ori- ginal cause. 2, &c. That [praying the supplemental relief against E. F.] Supplemental matter. BILL OF REVIVOR. [A Bill of Revivor states the original Bill and Decree and proceedings under it, and the other facts sufficiently to show the abatement and the title of the new parties, a/nd then .•] — " The said suit having become abated in manner aforesaid, no pro- Bill of Revivor. 330 APPENDIX. Bill of ceedings have been taken to revive the same." [Artd prayi :"] '"'"^ ' " 1. That the said suit and proceedings which so became abated as aforesaid may stand and be revived, and be in the same plight and condition as the same were in at the time of the abate- ment thereof. 2. That the said decree made on the hearing of the said cause may be prosecuted and carried into effect between the parties to this suit in the like manner as between the parties to the said original suit as revived. 3. That &c." COMMENCEMENTS OP BELLS. [We haw stated in the text that there should he in the com- mencement of the Bill a proper description of the Plaintiff, and to do that there is no difficulty when the law is known. Thus of a body of persons having a common interest, each must he de- scribed and made a Plaintiff, unless they have been made a cor- poration, or have been entitled by any act of parliament to sue by a public officer or secretary, in which cases as a rule they must sue by their corporate name or as prescribed by the act, though in some other cases a few are allowed to sue on behalf of all. And so a married woman cannot sue alone, but jointly with her husband, unless she claims some interest adversely or apart from him, when she must generally sue by her next friend, who must be described. One or two commencements, in addition to those above given, may be useful^ Husband and Wife."]— A. B., and C. D. his wife, Plaintiffs, &c. Humbly complaining, &c. A. B. of and C. D. his wife, the above-named Plaintiffs. Wife by next Friend.']— C. D. wife of A. B., by E. F. her next Friend. Plaintiff &c. Humbly complaining, &c. C. D. of , wife of A. B. of , by E. F. of , her next friend, Lumatic.'l — A. B., a lunatic, by C. D. the committee of the person and estate of the said A, B. and C. D. Plaintiflfe, &c. Humbly complaining, &c. A. B. of , by C. D. of , the committee, &c., and the said C. D. the above-named Plaintifis. Corporations^ — The Mayor, Aldermen and Burgesses of . Plaintiffs, &c. Humbly complaining, &c. The Mayor, &c. {or The Eailway Company. Plaintiff, &c. Humbly complaining, &c. The Railway Company.] BILLS. 331 Creditor on behalf of himself and other Ci-editors.] — A. B. on Commmcc- behalf of himself and all other the unsatisfied creditors of ments, ic. 0/ ■who shall come in and contribute to the expenses of this suit. ^"a^^mT^ Plaintiffi. ' Assignees of BanJerupt.'] — A. B. and C. D. Plaintiffs, &c. Humbly complaining, &c. A. B. of creditors' assignee and C. D. of official assignee of the estate and effects of , a bankrupt. Assignee of Insolvent Debtor.] — ^A. B. Plaintiff, &c. Htanbly complaining, &c. A. B. of , assignee of the estate and effects of , an insolvent debtor. Assignees of Banhruptnnder Act 1861.'] — Humbly complain- ing, &c. A. B. of , and C. D. of , creditors' assignees [or A. B. of official assignee, if no creditors^ assignees have been obtained or order of discharge has been obtained] of the estate and effects of a bankrupt. Information on behalf of a Lunatic having no Committee.] — Between The Attorney-General, at the") relation of A. B. and on hehaifV Informant; of C. D. a lunatic / and, &c. Informing showeth, &c., Sir R. P., Knight, her Majesty's Attorney-General, on behalf of C. D. of a lunatic, at and by the relation of A. B. of . Information and Bill^ — Between The Attorney-General, at the'* relation of the Master, War- I dens and Society of the Art > Informant ; and Mystery of Apothecaries j of the City of London . . .) The Master, "Wardens and Societyv of the Art and Mystery of I p, . ..jr Apothecaries of the City of )-^"'*"^i^*'' London ) and ''^of^LSo^n "'^^ °^ Physicians j ^,y,^„^,_ Information and Bill of Complaint. To the Eight Honorable, &c. Informing showeth unto your Lordship Sir Eichai-d Bethell, Knight, her Majesty's Attorney-General, at and by the rela- 332 APPENDIX. Cmmeme- tion of the Master, Wardens, &c. and humbly complaining it^mmxtims ^^°^ ^^^° ^^^^ Lordship The Master, &c., the above-named ana Biiit. Plaintiflfs as follows : — 1. The above-named Defendants were incorporated by royal charter in the year 1519, being the tenth year of the reign of King Henry the Eighth. By this charter, &c. 12. The Plaintiffs were incorporated by a charter of his Majesty Bling James the First, who, by letters patent under the great seal of Great Britain, bearing date the 6th of De- cember, in the 15th year of his reign, and written in the Latin tongue, did for himself, his heirs and successors, grant unto William Besse and divers other persons, &c. Information on tehalf of Grown [md those who partake of its Prerogative or are immediately comcemed.]— Informing showeth unto, &c. Sir J. P., &c., on behalf of her Majesty, and the Master, Fellows and Scholars of Trinity College, Cam- bridge. Information at relation of some PaHshioners on hehalf of all.'] — Informing showeth, &c. at and by the relation of C. D. cJerk, vicar of the pai-ish of E., and F. & H. churchwardens of the same parish, for and on behalf of themselves and the rest of the parishioners of the said parish. Of bUiB not [^The commencements of Bills of Revivor and other Bills not originaL original, differ from those of Original Bills simply by substitut- ing for the heading " Bill of Complaint," the headings " Bill of Eevivor," " Bill of Eevivor and Supplement," " Supplemental BUI of Complaint," " Amended BiU of Complaint," " BiU of Review."] Inter- rogatories. INTEREOGATOEIES. Form proeided by Schedule to the Consolidated Orders, being Interrogatories founded on the Form of Bill (ante, Form I.) fwmished by the same Orders. In Chancbet. Between John Lee Plaintiff, and James Styles and Henry Jones . Dffendants. Interrogatories for the examination of the above- named Defendants in answer to the Plaintiff's Bill of Complaint. 1. Does not the Defendant Henry Jones claim to have some charge upon the farm and premises comprised in the Indenture INTERROGATORIES. 333 of Mortgage of the 1st of May, 1850, in the Plaintiff's Bill inur- mentioned ? ragatorief. 2. What are the particulars of such charge, if any, the date, nature and short effect of the security, and what is due thereon ? 3. Are there, or is there, any other mortgages or mortgage, charges or charge, incumbrances or incumbrance, in any and what manner affecting the aforesaid premises, or any part thereof? 4. Set forth the particulars of such mortgages or mortgage, charges or charge, incumbi-ances or incumbrance ; the date, natm-e and short effect of the security ; what is now due thereon ; and who is or are entitled thereto respectively ; and when and by whom, and in what manner, every such mort- gage, charge or incumbrance was created. The Defendant James Styles is required to answer all these interrogatories. The Defendant Heniy Jones is required to answer the in- terrogatories numbered 1 and 2. T. Y. [name of cowisel.'] [It must not be supposed, however, that the above interro- gatories would be all that would be required upon such a Bill. They are only examples of the form in which the questions may be put. Two great objects of equity procedure are to enable the Plaintiff to obtain discovery on all the points ma- terial to his case, and to obtain answers which will save the expense and trouble of proofs. It is, therefore, usual and proper to interrogate as to all the statements in the Bill. The old forms of the interrogatories are also generally adopted, and examples of such forms are appended below ; from which it will be seen that the greatest care is taken to question the Defendant so minutely as to the particulars that he cannot evade the statements of the BUI by a negative pregnant or otherwise, without neglecting to answer some specific inter- rogatory. The examples below, which are founded on some of the paragraphs of the Statutory Form of Bill, wiU show how indirect statements are interrogated upon, and manifest the inconvenience of such statements and the convenience of direct statements.] Commcm Forms of Interrogatories founded on Statements in Form I., Bills. 1. Did not the Defendant James Styles, and whether or not being seised or otherwise entitled in fee simple, or for some 334 APPENDIX. ■'^' other and what estate, of or to a farm called Blackacre, or ro ga u t. gg^g Qtjjgj, ^nd what name, in the parish of A., or some other and what parish, in the county of B., or some other and what county, and whether or not by an Indenture dated the 1st of May, 1850, or some other and what day, and -whether or not made between the Defendant James Styles of the one part and the Plaintiff of the other part, or between some other and what parties, grant and convey the said farm, or some other and what hereditaments, with the appurtenances, uiito and to the use of the Plaintiff, his heirs and assigns, and whether or not subject to a proviso for redemption thereof in case the Defendant James Styles, his heirs, executors, administrators or assigns, should on the 1st of May, 1851, pay to the Plain- tiff, his executors, administrators or assigns, the sum of £5,000 with interest thereon at the rate of £5 per cent, per annum, or subject to some other and what proviso or how otherwise? [Or more convenient interrogatories may he framed ly basing am independent interrogatory on the oblique statement of title Was not the Defendant James Styles at the date of the In- denture in the 1st paragraph of the Plaintiff's Bill mentioned, seised in fee simple of a farm called Blackacre, or some other and what name, in the parish of A., in the county of B., or in some other and what parish and county or how otherwise ? Was not such Indenture as in the 1st paragraph of the Plaintiff's Bill is mentioned of the date and made between the parties, and of or to the purport or effect in the said Bill in that behalf mentioned, or of some other and what date, and made between some other and what parties, and of or to some other and what purport or effect or how otherwise?] 2. Is it not the fact that the whole of the said sum of £5,000, together with interest thereon at the rate aforesaid, or some and what part thereof, is now due to the Plaintiff or how otherwise ? [3, 4, 5. See statutory form.] 6. Are there not divers valuable oak, elm and other timber and timberlike trees, or some other and what timber and timberlike or other trees growing and standing on the farm and lands comprised in the said Indenture of Mortgage of the 1st of May, 1850, and whether or not forming a material part of the Plaintiff's said security or how otherwise ; and is it not the fact that, if the same trees, or any of them, were felled and taken awajr, the said mortgaged premises would be an in- sufficient security to the Plaintiff for the money due thereon or how otherwise ? INTERROGATORIES. 335 7. Is not the Defendant James Styles in possession of the i^nter- said farm, and has he not marked and whether or not for ^ "^'^torie s. felling a large or some other and what quantity of the said oak and elm trees and other timber, or some and what trees and timber, and has he not and whether or not by handbills published on the 2nd of December instant, or some other and what date, or by some other and what means, announced the same trees and timber for sale, and does he not thi-eaten and intend forthwith to cut down and dispose of a considerable or some other and what quantity of the said trees and timber on the same farm, or how otherwise ? Inteeeogatoey as to Documents. [Discovery as to documents and their production can now be obtained by summons (15 <& 16 Vict. c. 86, s. 18), but it may still be sometimes useful to interrogate as to particular docu- ments, or documents relating to particular matters, so as to have the ansv>er thereto on the face of the pleadings^ Whether the said Defendants, or some or one and which of them, or the agents or solicitors, agent or solicitor, of them or some and which of them, have or hath not now or had not lately and when last in their, his or her possession, custody or power, divers or some and what deeds evidences and writings, draft copies and abstracts of deeds evidences and wi-itings, securities, accounts, books of accounts, receipts, vouchers, letters, copies of letters, memorandums and paper writings, belonging or relating to the , or some or what part thereof, or the other matters and things hereinbefore stated and charged, or some and which of them, or whereby if the same were produced, or otherwise and how, the truth of such several matters and things, or some and which of them, would appear, and that the said Defendants may set forth a proper list or schedule of every such deed, evidence, writing, draft, copy or abstract of a deed, evidence or writing, and security, account, books of account, receipt, voucher, letter or copy of a letter, memorandum or paper writing as aforesaid, distinguishing such of the same as are, from such as are not, in the possession, custody or power of themselves or their agents or solicitors, or any part thereof respectively, and may produce and leave such as are in their possession, custody or power, in the hands of the Clerk of Records and Writs of this Honorable Court for the usual purposes, and may set forth what became of such of them as are not now in their possession, custody or power. 336 APPKNDIX. Jnler- INTERROGATORIES IN ADMINISTRATION SUITS. rogatories. As to Personal Estate. Set forth a Ml, true and particular account of the personal estate and effects of or to -which the said Testator was possessed or entitled at the time of his death, and the amount or value thereof and of the several particulars thereof respectively, and what part or parts of such particulars has or have been pos- sessed and received by or come to the hands or use of them the said Defendants, or either of them, or any other person or persons and whom by name, by their or either of their order, or for their or either of their use [or which without their or one of their wilful default or neglect might have been so possessed and received], and how and in what manner, and when and where, and by and to whom, the same and every part thereof hath been sold, applied, disposed of and admi- nistered, and whether any and what part of such personal estate and effects, and to what amount or value, now remain unsold or to be got in and administered, and where and in whose hands, possession or power, and upon what security or securities, and why the same has not been got in and received, and what is the amount or value thereof. As to Testator's Debts amd Legacies and Swplus. And set forth the particulars of the said Testator's debts and funeral and testamentary expenses, and of the several amounts paid by the said Defendants, or either and which of them, and when and by and to whom, for or in respect of the said debts and expenses respectively, and for or in respect of the several legacies bequeathed by the will of the said Testator, and set forth the amount of the clear residue of the said Testator's personal estate after such payments as^afore- said, and how the same and every part thereof is invested, and in whose hands the same and each and every part thereof is. As to Real amd Leasehold Estate. Set forth a full, true and particular account of all and sin- gular the freehold, copyhold and leasehold estates of or to which at the time of his death the said Testator was seised, possessed or entitled, or over or in respect of which he had any disposing power or beneficial interest, and where every part thereof is situate, and the yeaiiy value and other parti- culars thereof, and in whose tenure or occupation the same and eveiy part thereof now is and have or hath been since the death of the Testator, and under what leases or agreements for leases, and at what yearly or other rents or rent ; and INTERROGATORIES. 337 whether the said Defendants, or one and which of them, ai'e inter- not now and have not been during the whole or some and rogatories. what part of the time since the death of the said Testator, in possession and in the receipt of the rents and profits of the said estates, or some and what part thereof, or who by name now are or is and for how long a time have or hath been in possession, or in the receipt of the rents and profits thereof, and of every part thereof, and by what right or title. And a like account of all and every the sum or sums of money which have or has been and when received by the Defendants, or one and which of them, or for their or any of their use for or in respect of the rents and profits of the said estates, or any part thereof, since the death of the said Testator, and by and from whom and for what rent and for what part of the said estate, and when the same became due and payable : And set forth how 'and in what manner the same sums and eveiy of them have or hath been applied or disposed of, and what is the balance in the hands of the Defendants or one and which of them : And set forth a, like account of such of the said estates as have been sold or disposed of, and when and by and to whom, and for what sum or sums of money, and when and from whom all and every or any such sum or sums of money hath or have been received or come to the hands of the said Defendants, or by any person or persons by their or any and which of their order, or for their or either and which of their use ; and whether any and which of the said estates of the Testator remain unsold and undisposed of, and why, and what is the value thereof respectively. [These interrogatories might probably be much reduced. If an eicecutor in a suit by a legatee or creditor should admit assets sufficient to meet the demand of the Plaintiff, there would be no need for a general administration, and therefore for ahy discovery as to the particulars. If he should not do so, or if the suit were by a residuary legatee, &c., the object of the discovery seems to be to obtain means for more searching inquiries and more pointed amendments, rather than to pro- cure accounts which can be had and tested under the decree. (See Whitwoi-th, Eq. Plead. 26, 27, and the observations there made as to the advantages of inquiring for the documents and books, &c. by which the accounts are made out. And see the short forms of interrogatory there given.) ] 338 APPENDIX. 2)emwTerA. Commence- menU DEMURKEKS. The Demun-er of C. D., Defendant, to the BUI of Cora- plaint of the abore-named Plaintiff. This Defendant, by protestation, not confessing all or any of the matters and things in the Plaintiff's Bill of Complaint to be true, in such manner and form as the same are therein set forth and alleged, doih demur thereto, and for cause of demurrer showeth . W ant cf Equity. That the Plaintiff hath not in and by his said BiU made such a case as entitles him, in a Court of Equity, to any dis- covery or relief from or against this Defendant as to the matters contained in the said Bill, or any of such matters. Where there is no Privity tetmeen the Plaintiff amd Defendant. [Or, That it appears by the Plaintiff's said Bill that there is no privity between the Plaintiff and this Defendant to enable the Plaintiff to call npon this Defendant for payment of any debt due to the estate of the said Testator from this De- fendant.] For Multifariousneas. {Or, That it appears by the said BiU that the same is ex- hibited against this Defendant, and A., B. and C. the other Defendants thereto, for several and distinct matters and causes, in many whereof, as appears by the said Bill, this Defendant is in no way interested or concerned, and that the said Bill is midtifarious.] Of Statute of Frauds. [Or, That it appears by the Plaintiff's said Bill that no agreement in writing for the purchase of the said heredita- ments, or any part thereof, nor any memorandum or note thereof in writing, has been made or signed by this Defendant or by any other person thereunto lawfully authorized by this Defendant, and this Defendant claims the benefit of the statute passed in the twenty-ninth year of King Charles the Second for the prevention of frands and pequries.] Where Suit relates to only part of a Subject-Matter, and Defendant would he vexed by a multiplicity of Suits. [Or, That the said Plaintiff by his said Bill seeks only to recover a part of an entire debt thereby stated to be due to him by this Defendant, and in respect of other parts of the DEMURRERS. 339 said debt has, as appears by his said Bill, filed two other Demarrers. several BUls of Complaint in this Honorable Court against this Defendant.] To a Bill of Interpleader for Want of the necessary Affidavit. [Or, That the Plaintiff has not annexed an affidavit to his said Bill that he does not coUude concerning the matters or any of them therein contained with this Defendant and the other Defendants thereto.] Wlierefore and for divers other good causes of demurrer conclusion. appearing in the said Bill this Defendant doth demur thereto, and prays the judgment of this Com-t whether he shall be com- pelled to make any further or other answer to the said Bill, and prays to be hence dismissed with his costs and charges in this behalf sustained. To Discovery, where Defendant has no Interest in Subject- Matter. That the Plaintiff has not in and by his said Bill stated or shown that this Defendant has or pretends to have any right, title or interest in the matters and thingscomplainedof by the said Bill or any of them, or stated or shewn any right to call upon this Defendant in a Court of Equity for a discoveiy of the said matters and things or any of them. To Discovery, which would subject the Defendant to Pains ihid Penalties or Forfeiture. That the said Bill seeks to discover how, &c. ; but this De- fendant is advised that any discovery of the manner in which, &c. would or might subject this Defendant to fine or corporal punishment and also to a forfeitm-e of . Demurrer of two Defendants to Part of Relief for Want of Equity and Want of Parties, amd Answer to Remainder of Bill. These Defendants, by protestation, &c. As to so much of Dcmnn-cr the said Bill as seeks to have the agreements respectively a"*^!^"':''' expressed or contained in instruments bearing date respectively and in the said Bill set forth, specifically performed by or under the decree of this Honorable Court, and also to so much of the said Bill as seeks the relief prayed in the 1st, 2nd and 4th paragraphs of the prayer of the said Bill, and as seeks any other relief upon or under the said agreements except the relief prayed by the 3rd paragraph of the prayer of the said Bill, do demur in law to the said Bill, and for cause of demurrer show that the said Plaintifife have not by their Bill made such a case as entitles them to have the said agreements q2 340 APPENDIX. Demurrers, Commence- ments. specifically performed by or under the decree of this Conrt, or to have any such relief as is so prayed or sought by the parts of the Bill hereby demurred to ; and for further cause of demurrer to the same parts of the said Bill, show that the company in the said Bill mentioned is a necessary party to the said Bill, but the said Plaintiffs have not made such company party to the said Bill.. [Or demwrrer as to parties may, without actually na/ming the parties, point them out thus : — That there are not proper parties to the said Bill, and that there is not and are not any person or persons, party or parties to the said Bill, who represents or represent all ithe persons inte- rested in the matters and things to which the said Bill relates.] Wherefore, &c. these Defendants do demur to such parts of the said BiU as aforesaid, and pray the judgment of this Honorable Court whether they are compellable to answer any of the interrogatories as to the matters and things alleged by the said Bifl in reference to which such relief as aforesaid is sought. And these Defendants, not waiving the aforesaid demurrers, but wholly relying thereon, as to the residue of the said Bill or such part thereof as they are advised is material or neces- sary for them to make answer unto, do jointly and severally answer and say : — [here follows the answer.'] [See formal commencements of Answers (post), which can readily be adapted to Demurrers!] Commence- mept. PLEAS. The Plea of Defendant to the Bill of Complaint of the above-named Plaintiff. This Defendant, by protestation, not acknowledging all or any of the matters and things in the said Bill set forth to be true, in such manner and form as the same are therein set forth and alleged, doth plead in to the said Bill, and for plea saith that : — To the Jurisdiction. The county of Chester in the said Bill mentioned is and from time whereof the memory of man is not to the contrary hath been a county palatine, and that the said hereditaments with their appurtenances within the said county palatine or belonging thereunto have or ought to have been during all PLEAS. 341 such time impleaded, and yet are impleadable, in the Courts of pims. the said county palatine, before the judge for the time within the said county, and not elsewhere. Of Coverture of Plaintiff. The said Plaintiff , before and at the time of exhibiting her said BUI, was and now is under coverture of one her husband, who is still living and in every respect capable, if necessary, of instituting any suit at law or in equity in this kingdom on her behalf Banhruptey of Plaintiff. After the date of the said Indenture of the of in the said Bill mentioned, that is to say, on the of , the Plaintiff was duly adjudicated a bankrupt, and at the time of filing his said Bill continued to be and now is a bankrupt, and on the — — of assignees of his estate and effects were duly appointed. All which matters and things this Defendant doth aver to conclusion, be true, and he pleads the same [in bar] to the whole of the discoveiy and relief sought by the said Bill, and prays the judgment of the Honorable Court in respect thereof Negative Plea, denying the Claim of Interest by Defendant, amd Answer in Support. That, — He has not, nor ever had, nor pretended to have, nor does he, nor did he ever claim any right, title or interest what- soever in the personal estate of the said Testator, all which matters and things this Defendant doth aver and plead in bar to the said Bill ; and this Defendant, not waiving his said plea but relying thereon, and for better supporting the same, for answer to the said Bill, saith I deny that I now am or ever was interested in, or now do or ever did claim to be inte- rested in, the personal estate of the said Testator or any part thereof Plea of Purchase far Value denying Notice, and Facts charged to make out Constructive Notice {a conclusion of Law), sup- ported hy Answer denying Notice, and Facts charged, and Admissions of Facts. Previously to and on the of A. B. was or pre- tended to be seised in fee simple, and was in or pretended to be in the actual possession of the hereditaments in the said Bill mentioned free from incumbrances ; and this Defendant, believing the said A. B. was so seised and entitled, on the 342 APPENDIX. ^'^^- of agreed with the said A. B. for the purchase of the in- heritance in fee simple of and in the said hereditaments free from incumbrances, and thereupon by an Indenture dated the of , and made between the said A. B. of the one part and this Defendant of the other part, the said hereditaments, in consideration of the sum of £ paid by this Defendant to the said A, B., were granted and assured by the said A. B. unto and to the use of this Defendant, his heirs and assigns ; and in the said Indenture was contained a covenant by the said A. B. with this Defendant that the said hereditaments should be enjoyed by this Defendant free and clear and freely and clearly discharged of and from all incumbrances com- mitted or permitted by the said A. B. or any person or persons claiming by, from, through, under or in trust for him ; and this Defendant doth aver t^t the said consideration money of & was actually paid by this Defendant to the said A. B. at the time the said Indenture was executed, and that at or before the respective times of the payment of the said con- sidoration money and of the execution of the said Indenture, he this Defendant had no notice of the said Agreement now claimed by the Plaintiff, that [denying parUcular facts charged as circwmstanees of constructive notice], all which matters, &e. ; and I this Defendant not waiving, &c. for answer to the said bill say as follows : — I deny that I had at any time before or at the time of the said purchase any notice whatsoever, either actual or constructive, of the Plaintiff's said Agreement, or that the same was charged upon or in anywise affected the said hereditaments, and I deny [the facts charged as circumstances of notice'] ; and I deny that I have ever admitted to the said , in the said Bill named, or to any one else, that I had before or at the time of the said purchase any such notice as afoTesaidi— [then follow any facts (not r^erred to in Bill) in suhsidium of plea]. Plea of Statutes of Limitation and Answer in Support, by a Mortgagee in Possession, imder 3 <6 4 Will. 4, c. 27, s. 28. That A. B., in the said Bill named, on or about the of entered info the possession and receipt of the rents and profits of the hereditaments in the said BUI mentioned, and continued in such possession and receipt until and on the of , and on the said of by an Indenture of that date, and made between the said A. B. of the one part and this Defendant of the other part, for the considerations therein mentioned the said A. B. conveyed and assured the same hereditaments unto and to the use of this Defendant and his heirs; and the said A. B. then delivered and this Defendant entered into the possession and receipt of the rents and profits PLEAS. 343 of the same hereditaments, and hath ever since continued in Pleas. such possession and receipt until the filing of the Plaintiff's said Bill ; and this Defendant avers that the said A. B. and this Defendant, from the said of to the filing of the said BUI, have not, nor has either of them, given to the said C. D. or the Plaintiff, or any person claiming the estate (if any) of the said C. D. or the Plaintiff in the said heredita- ments, or to any person being or claiming to be their or any of their agent or agents, any acknowledgment in writing signed by the said A. B. or this Defendant of the title, or of any right of redemption of the ssiid C. D. or the Plaintiff, or of any person claiming as aforesaid any such estate as aforesaid ; and this Defendant avers that [averments meeting m general terms other allegations in the Bill inserted to take the case out of the statute], and this Defendant claims the benefit of tlie Statutes for the Limitation of Actions and Suits, and pleads the several matters aforesaid in bar, &c. ; and I this Defendant in answer, &c. [denying the acknowledgments in writing and other allega- tions as in plea, aiad asay particular charges, such as that of a receipt for interest so made as to be 'iO APPENDIX, Ansam. charge of the said rent in the said paragraph mentioned, or on account of or in discharge of any other rent or on any account whatever. Special Traverse. A short time after the decease of the Dowager Lady S., and before the filing of the- Bill in this suit, the Plaintiff in the course of conversation as to the dowager's affairs said to me, " The diamonds are mine, but the other trinkets must be sold to pay the debts." Save as aforesaid I deny that it is the fact that the Plaintiff gave me fall or any notice of his claim to the diamonds in question, and whether he gave any such notice to the said C S. H. I do not know and am unable to set forth. Partial Ignoramce. I do not know and cannot set forth whether the heredita- ments in the paragraph of the Plaintiff's Bill mentioned, or any other hereditaments, were on the of , or any other day, conveyed to the said J. S., but I am informed and believe that on or about the of the said heredita- ments were conveyed unto and to the use of A. B. and his heirs, and save as aforesaid I do not know and cannot set forth whether on the of , or any other day, the said hereditaments or any other hereditaments were conveyed to the said J. S., or any other and what person or persons, or how otherwise. General Traverse. Save as aforesaid I deny all and every {or do not admit all or any of] the several matters and things in the Plaintiff's Bill alleged and set forth. Answer and Disclaimer. The Answer and Disclaimer of A, B., a Defendant to the BiU of Complaint of the above-named Plaintiff In answer to the said Bill I, A. B., say as follows :— I deny that I ever had or claimed or pretended to have, or that I now have, or claim or pretend to have, any right, title or interest of, in or to the said , or any part thereof, and I disclaim all right and title thereto. Arvgwer of a Strajnger to the Facts cTiarged. [Save as aforesaid] I am a stranger to all and singular the matters and things in the said BiU contained, and without admitting [save as aforesaid] all or any of the said matters and things I leave the said Plaintiff to make such proof thereof as he may be able to produce. ANSWERS. 347 Answer of cm Infant. Anmers. The Answer of , an infant under the age of twenty- one years, by her guardian, a Defendant to the Bill of Complaint of the above-named Plaintiff. In answer to the said Bill I , by my guardian, say as follows : — I am an infant of the age of years or thereabouts, and without admitting all or any of the matters and things in the said Bill alleged and set forth, I submit my rights and interests in the matters in question in this cause to the pro- tection of this Honourable Court. OTyectixm as to Parties. Under the circumstances aforesaid I submit that the said A. B. [or that all the persons interested in the residue of the said Testator's real and personal estate] are necessary parties to the said BOl. WTiere Facts not laid as Defemdants oiim Facts or within Se/oem Years. I cannot set forth as to my remembrance or belief whether Cf Igrmrance hy Corporation. We do not know and cannot set forth whether &e., and we have made inquiries touching and concerning all and every the said mattei-s and things of our [clerk] and all other our officers and servants. Answer hy Equitable Mortgagee claiming Priority. On or about the of a settlement was executed on my marriage with my present wife, and the said was employed by me as my solicitor to prepare and did prepare the said settlement. The negotiations for the said settlement were conducted by the said on my behalf, and in the course of such negotiations it was proposed by the said on my behalf that the said memorandum of deposit and the monies thereby secured should be included in the said settle- ment, but it was ultimately arranged between the said and Messrs. acting as the solicitors for and on behalf of my said intended wife, that some other funds should be sub- stituted in the place of the said memorandum, arid the monies thereby secured, and the same memorandum and monies were accordingly not included in the said settlement, and as evidence thereof I crave leave to refer to a letter dated the of 348 APPENDIX. Anmers. , and sent on or about that date by the said to the said Messrs. , and to a letter dated the of , and sent on or about that date by the said Messrs. to the said , and I say that the memorandum of deposit in the said letters referred to is the memorandum of deposit herein- before mentioned. The said was afterwards employed by the Plaintiff as his solicitor to prepare and did prepare the Indenture of Mortgage of the of in the Plaintiff's Bill mentioned, and under the circumstances I submit that the Plaintiff ought to be deemed to have obtained the said mort- ga,ge and to have advanced the said sum of £ to the De- fendant , with notice of the said memorandum of deposit and the security thereby made to me, and I claim priority in respect of the said last-mentioned secmity over the Plaintiff's said mortgage. Usual Form of Answer claiming Benefit of Statute of Frauds. I say that no agreement in writing signed by me for the lease of the said premises to the Plaintiff has been made, entered into, or signed by me, or by any agent on my behalf thereunto lawfully authorized by me, and 1 claim the benefit of the statute passed in the 29th year of King Charles the Second for the prevention of frauds and perjuries, in the same manner as if I had pleaded or demurred to the Plaintiff's BiU. Answer as to Docmnents, and Oljection to prodtice them, hecause relating to Defendant's Title and not swpporting Defendant's Claim of a Partnership. I have now in my possession or power various books, letters, papers and writings relating to the matters in the Bill men- tioned or some of them ; and I have in the schedule hereto, which I pray may be taken as part of this my Answer, set forth a list or schedule of all the said books, letters, papers and writings ; but I deny that thereby or otherwise, if the same were produced, the truth of the matters in the said Bill mentioned or any of them would appear further or otherwise than as the same is hereinbefore admitted, and, in particular, that I have or ever had in my possession, custody or power, or in the possession, custody or power of any agent or agents, any book or books belonging to the said alleged co-partnership ; and I say that all the said books, letters, papers and writings relate exclusively to my title and to my own business solely, in which the Plaintiff had no interest, and do not relate to the alleged partnership nor to any business carried on by me in con- junction with the Plaintiff, and there are not any entries made in the said books on the joint account of the Plaintiff and myself, or on the Plaintiff's sole account, nor are any of the payments, ANSWERS. 349 receipts, accounts, matters or things contained in the said Answers. books, letters, papers or writings, or any of them respectively, nor do the same appear to be had, made or done in the joint names of the Plaintiff and myself, but, on the contrary, all such payments, receipts, accounts, matters and things appear thereby to be made, had and done in the sole name and on the sole account of this Defendant, and I submit that I ought not to be required to produce any of the said books, letters, papers or writings or any part thereof. INDEX TO THE TREATISE. ACCEPTANCE OF TITLE, when facts to be giyen, 19. ACCOUNTS, case for, nrast show sufficient facts, 75—78. general charge of intricacy not enough, 75, 192. facts may be charged generally as they are within knowledge of defendant, 76—78, 130. charge of conclusion of law will not authorize, 192, 193. to open, specific errors in to be stated, 134, 193. what granted without special case, 190 — 192. against mortgagee, trustee, &c., 191, 192. requiring special facts, 192. ACQUIESCENCE, facts to negatire, necessary, 189. when a conclusion of law, 20. ADMISSIONS, allegations of, to cure vagueness, must be of facts and clear and unambiguous, 90, 91. — See CONFESSIONS — Paetioulaeitt. ADULTEKT, general charge of, may be made, 125. " misbehayed herself," uncertain charge of, 81. AD VEESE POSSESSION, how pleaded, 64, 128. AiTIDAVIT, must state facts, not mere conclusions of law, 218. AGENT AND PEINCIPAD.— &« Pacts. AGREEMENT, how stated, 57. " understanding" not sufficient description, 83. within Statute of Frauds, 57, 58. no demurrer lies, unless appears not to be in writing and signed, 58—60. documents may be referred to, to avoid plea, 125. substance only may be given and documents need not be men- tioned, 125, 126. may be stated generally, 125, 126, n. subsequent statements of documents embodying all or part of the terms, it may be proved otherwise, 138, 14i, 145. if subsequent statements incorporated in main statement of agreement, it must be proved in that way, 142. 352 INDEX TO TREATISE. ALLEGATA ET PROBATA, decree according to, only, 196—200. no relief on facts disclosed in evidence or answer only, 197. facts disclosed by evidence of plaintiff may make ground for inquiries, sed qu., 197, 198, 200. matter of inducement disclosed by answer put in issue, 198. when matters appearing in answer to be stated by way of pre- tence, 199. matter in avoidance of defendant's allegations to be stated in . amended bill, 199, 200. See Answer — ^Facts. ALLEGATIONS, considered too uncertain. — See AMBIGUOUS STATEMENTS. " or otherwise weU entitled " in statement of defendant's title sufScient, 92. ALTERNATIVE.— ;Ske Relief, 171—177. AMBIGUITY, immaterial where same relief in any case, 79. when fatal only in part, 79 — 112. will be read most strongly against pleader, 79. AMBIGUOTTS STATEMENTS, distinct issues ought to be raised on each alternative, 79. read against pleader, 79. fatal, where no relief on one alternative, 79. aliter, where same relief or part of it on either alternative, 79. " or some of them," 80. " many years ago," 81. charges of lewdness, adultery, &c., 81. insanity, 82. fraud, 82, 83. of liability of heir under a bpnd, 83. " agreement or understanding," 83. "encouragement," 84. AMENDED BILL, when necessary, 233, 234. when usefnl to obtain fuller answer, 235. how framed, 234. iow far frame of suit can be altered by, 235. when plaintiff will not pay costs thereof, 236. illustrations, 237—340. to obtain benefit of admissions, 236, 237. to avoid Statute of Limitations, 237. alternative relief according to original or, cannot be had, 240. bill of discovery cannot be changed into bill for relief, by, 240 — 242. bill for relief cannot be changed into bill of discovery by, 240 — 242. matter subsequent to original bill may be added by, 242. plea to, when overruled by answer to original bill, 242. counterpleaded by answer to original bill, 242. answer to, must not generally repeat answer to original bill, 243_ INDEX TO TREATISE. 353 ANSWER, where no, and none required, bill traversed, 214. traverses what it does not admit expressly, 214, sed qu. note (J), as a defence, must state defendant's case like the bill does plaintiff's case, 216. must state facts, 23, 216. must be positive, 216. when statement as to belief sufficient, 217, n. must be certain, 216. ■what an argumentative traverse, 222. must be sufficiently particular, 216. evidence need not be stated, 218, 219. indulgence, as to facts in plaintiff's knowledge, 216. greater than in case of bill, 217. facts not stated in, caimot be used, 216, 217. inconsistent, must not be, 217. equities relied on, to be shown, 216 — 218. need only be substantially, 218. defences, different, may be set up, 217. facts stated by bill, defendant can rely on, 218. by pretence, put in issue by, 219. conclusion of law only raised by pretence and charge, facts must be stated by answer, 219, 220. facts stated by plaintiff 's eridence only may form ground for inquiry, 220, 221. as a discovery, how to be made, 221 — 225. need only be to interrogatories, 223. where interrogatories not founded on special allegations, 224. belief, when may be made as to, 224. as to, an admission, 224. ignorance, to be expressly stated, 224. hearsay as to, insufficient, 224. full, must be, 225. inquiries, as to subject of, need not be given, 225. documents, as to, how given, 225. usual reference to, effect of, 225 — 227. where document in plaintiff's hands, 226. where document in defendant's hands, improper, 226. as a defence, statements in, to found interrogatories, 225. to obtain inquiries, 227. to affect the costs, 227. where simple defence raised by, no costs, 230. should be made by plea or demurrer, 230. must plead specially matters of law which do not go to gist of suit, 230. purchase for va^jie without notice, 231, 232. Statutes of Frauds or Limitations, 230, 231. claiming same benefit as if plea or demurrer, 231. 354 INDEX TO TREATISE. ANSW'E'Br— continued. to amended biU, should not repeat former answer, 243. miless defence yaried thereby, 243. or bill makes a new case, 243. or otherwise necessary, 243. to original biU may be read to comiterplead plea to amended bill, 242. when, overmles plea to amended bill, 242. farther, how framed, 243. plea and, 229. supplemental, 227. to amended bill, 227, 228, 237, 243. AEGUMENTATIVE PLEADINGS, bad in bill, 84—86. in answer and plea, 217, n., 222. how differ from implied statements, 84. mle against follows from statute, 86. must be substantially observed, Qj/., 85. cannot be remedied by prayer, 86. required to raise distinct issues, 86. ASSIGNMENT wifhin Statute of Frauds, writing need not be averred, Qy., 59. AWARD, for setting aside, what facta, 192. BANKKUPTCT, under old law, facts of, to be stated, 47. under new law, aliter, 48, n. (g"), 50. BARGAIN AND SALE, enrobnent of, need not be averred, 60. BELIEVES, plaintiff, not sufficient, 115. defendant, when sufficient in answer or plea, 217, n., 222, 229, n. (»). BILL, frame and contents of, generally, 6 — 8. must be sufficient to entitle to particular decree, 9. decree according to allegations of, 9, 196 — 200. amended, should contain full and strong statement of case. — See Amended Bill, 246. original, general considerations as to frame of, 243 — 246. where details of a case unknown or uncertain of proof, statements to be loose and general, 243, 245. prolixity to be avoided in, 244. where details to be stated in, to avoid plea, 244, 245. letters to be referred to in, to affect costs, 244, 245. where details known and can be proved, to be stated in, 245,246. INDEX TO TREATISE. 355 BEEACH OF TRUST, question of law requiring facts, 24. vagueness in case for, from insufficient facts, 75. CHARGE, different sorts of, 201. anticipatory or replicatoiy, object of, 201 — 207. ■will not entitle to relief unless an equity founded on them expressly, 212. use of pretence to point, 207. discovery, not necessary, where information material to plain- tiff 's case, 210—212. incumbrances, as to other, unnecessary, 132, 210, 211. documents, as to, unnecessary, 132. general, of law, needs no answer, 67, 71. of fraud, needs an answer, 35. of partiality in arbitrator, needs an answer, 37, 124. of fact, needs an answer, 67 — 71. that defendant claims an interest is a fact and requires an answer, 70, 210. that defendant is entitled, question of law, 70. accounts of, intricacy of, not sufficient, 75 — 78. of conclusion of law, limited by facts stated, 75 — 78. of facts, not limited by particulars stated, 76 — 78. CLAIM,* defendant's, is a matter of fact, 70, 210. pretence of, how met, 70. how to be stated, 70. must be shown to be such as to justify making him a party, 70, 210. when necessary to allege acts under claim, 70, 210. to show he is entitled, 71, 93, 117, 127, 210. COLOUR, to give to case, facts may be stated, 193. COMMON, right of, uncertainty in laying, 89, 107, 112. CONCLUSION OF LAW, what is, 13, 14. instances of, 14, 15. when statement of not sufficient. — See Facts. mixed questions of law and fact, 16, 34. when expressed by same terms as the fact, 16. raised by demurrer and not inference of fact, 20. CONDITIONS PRECEDENT, performance of, to be averred, 65, 188. when general averment sufficient, 66. negative averment, 67. which go to the gist of the case, to be stated when, 146. 356 INDEX TO TREATISE. CONFESSIONS AND ADMISSIONS, oral, must be put in issue, 146. so as to give opportunity of meeting it, 147. written, need not be stated, 147. but, if not, will hare less weight, 147. if stated in answer, plaintiff may give evidence to show their real effect, 148. of conclusions of law, written or parol must be put in issue, 148. supposed instances of, examined, 149, n. Qy. whether above strictness as to, would be followed under new practice, 149, 150. not observed in new American practice, 150, n. CONVEYANCE, how to be stated, 60, 61. COPYEIGHT, infringement of, may be stated generally, 129, 130, 134. COSTS, facts to affect, must appear in pleading, 189, 227. letters to be read to affect, to be referred to, Qy., 244, 245. of demurrer, when given, 252. where simple defence not raised by plea, 230. DECREE, materials for, presented by pleadings, 9. plea of former, how stated, 228. according to allegata et probata of bill and answer, 9, 10, 196—200. DEFENCES, different may be set up by answer, 217. DEFENDANT, his title, when to be shown, 70, 71, 210. his claim, when only need be stated, 70, 117. when acts vexing plaintiff to be stated, 70, 210. pretence of, how met, 70. his case, alleged by plaintiff without strictness, 92, 213. surprise. Court will not allow him to be taken by, 10, 118, 120. DEMUEREE, only raises inferences of law and not of fact, 20, 113. admits facts well pleaded, 51. on, bill read more strictly against pleader, 112. nature of, 247 defects of form, must be raised by, 248. not raised by, plaintiff can rectify, 248. for, not favoured, 248. when may be waived, 248. when affect the substance, 249. for want of offer to do equity, remedied by amendment, 189. defects of substance, when to be raised by, 249. when not, 250, 251. frame of, 251-255. INDEX TO TREATISE. 357 D'EMXTRKER— continued. general, sufficient for defects of substance, 251. special, necessary for defects of form, 251. unless general demurrer for want of equity, 252. or special demurrer for other grounds, 252. but costs may not be given unless grounds of demurrer specified, 252. grotrnds of, advantages of assigning, 252. to be stated distinctly and separately, 253. and clearly expressed, 254. for want of equity, what is, 252, 253. part of bill to which applied, to be defined, 253. not disallowed now, because does not cover enough, 264. to discovery only, when bad, 254. to too much, bad, 253, 254. but not overruled where answer acoidentally refers to part covered, 254. to relief, bars incidental discovery also, 255. but defendant may give discovery iu aid of legal right, 255. separate, to separate parts of bill, where grounds different, 255. DISCLAIMER, must be made by plea or answer if biU charges defendant claims, 70, 127. defendant should offer to make in any way plaintiff requires, 127, n. DISCOVERT, ... : bill of, must show some purpose to which it is applicable, 17, 18, 103. need only show case fairly open to trial at law, 97. must state facts showing right to bring action, 17. it to be material to suit or action, 17, 18. action to be necessary, 17, 18. not given to assist in roving speculation, but to prove knoA\-n case, 95. not given where either known case, or particular allegation, uncertain, 106. where material to relief, special allegation unnecessary, 211, 213. to save expense of proof, facts may be stated ia order to obtain, 194. answer as a, how framed, 224, 226. — See Answer. right to, ground of indulgence in stating facts in defendant's knowledge, 95 — 98. what title must be alleged in defendant for, 213. DOCUMENTS, answer, how referred to in, 225, 226. bUls, charge as to in, must be stated fully and fairly, 160 — 152. effect of only need be stated, and not words, 151. may be given veriatim, 61, 89, 90, 161. 358 INDEX TO TREATISE. DOCUMENTS— continued. bills, charge as to in — oontinued. must not be misrepresented by suppression or otherwise, 150. effect of misrepresentation where reference and defendant has access, 152, 153. unnecessary to case, need not be referred to, 150. usual reference to, does not put it in issue, 153 — 156. if misstatement, will not enable true contents to be read for or against a demurrer, 155. or at hearing, 154. will entitle plaintiff to the means of putting tme contents in issue, 155. shorter reference will suffice, 155. if no misstatement, deed may be read on demmrer, 166. DEINKCNG, addicted to, and liable to be imposed upon, general charge of, may be supported by particular instances, 124. "DULY," adjudged a bankrupt, 48, n. (^). became a shareholder, 54. made a wiU, 62. proved will, 63. EQUITIES, relied on, to be shown in biH, 186. — See Kemep. in answer, 216, 218. EQtriTT, of case, arises out of all the circumstances, 15. out of exact words of instrument, 90. court will look to whole bill, 91. plaintiff 's, must appear in bill, 186. offer to do, must be made, 189. omission of, how remedied, 189. EVIDENCE, need not be stated in biH, 119 — 122. in answer, 218, 219. as, effect of stating fects, 136— 146.— ;&« Paeticulaeity. EACTS, not mere conclusions of law, to be stated, 12 — 71. grounds of the rule, 12. rule not connected with particularity, 15, 16. instances of rule at law, 16, 17. rule applies to all proceedings in equity, 18.- affidavit, 18. answer, 23. plea, 24, 47, 54. INDEX TO TREATISE. 359 FACTS, not mere conclusions of law, to be stated — oontirmed. illustrations of rule in equity, 17 — 57. plaintiff is entitled to bring action, 17. discovery material to an action or suit, 17, 18. action necessary to establish plaintiff's rights, 18. acceptance of a title, 19. ■vraiver, constructive, of right to rescind contract, 19. waiver, actual, of, 19. acquiescence, 20. trust,'existence of, 21 — 24. breach of trust, 24. notice, constructive, 24. direct, aliter, 25. title, 26—33. reason and limits of rule, 27. pedigree to be substantially set out, 28. to sue defendant only required, 29. of mortgagee, 29. of mortgagor, 30. between lessor and lessee, 30. principal and agent, 30. between company and shareholder, 30, 50—54. prima facie better than defendant's, only required, 30. as where defendant wrongfully enters into possession, 31. plaintiff heir, and defendant's claim under pretended will, 30. tithes, cases of, 32: manner and time acquired, to be shown, 33. ' fraud or misbehaviour, 33 — 45. when matter of intention aliter, 34 — 39. when independent of intention comes under the rule, 34, 46. bankruptcy, under old law, 47. imder new, 48, n. (^), 50. shareholding, 50 — 54. under Companies Clauses Consolidation Act, 54. adverse possession, 54. regulations imposed by statute, when compliance with need not be averred, 57 — 61. exception to rule, 13, 49, 51, 53, 55, 56, 63. instances in equity — wiU " duly made," 62. " duly proved," 63. " duly become a shareholder," 54. instances at law, 64. conditions precedent, performance of to be averred, 65. general averment, when sufficient, 65, 66. general charge, of conclusion of law needs no answer, 67 — 71 . that defendant claims an interest is a ques- tion of fact and must be answered, 70. 360 INDEX TO TKEATISE. FACTS— & what must be stated in bill, 186 — 200. equity, plaintifE's, must appear, 186. title, plaintiff's, how stated, 187, 188. must be stated sufficiently to show right to sue in plaintifE himself, 189. wrong done or rights claimed, 188. jurisdiction, facts to show, 188. conditions precedent, performance of, 188. offer to do equity, .189. omission of, may be remedied by amendment on de- murrer, 189. laches, &c. to be negatived, 189. costs, facts to affect, 189. inquiries, ground for to be laid by facts, 189, 190, 257. to avoid, 190, 192, 258. accounts, what granted without special case, 190 — 192. against mortgagee, 191, 192. requiring special facts, 192. charge of conclusion of law, wiU not authorize, 192, 193. Injunction, special case for, to be made, 192. receiver, special case for, to be made, 192. award, setting aside, facts to be given, 192. colour, to give to case, facts, 193. discovery to save proof, facts to obtain, 194. allegata et probata, decree according to, only, 196 — 200. fully and fairly, to be stated, 150 — 152. must be stated by answer, where pretence of a conclusion of law only, 219, 220. must not be stated inconsistently in bill, 79, 171 — 176. in answer, 217. appearing in plaintiff 's evidence oiJy, when ground for inquiry, 220, 221. how to be stated by pretence and charge to contrary. — See Pke- TBlfCB. vagueness in case from insufficient, 72 — 78. well pleaded admitted by demurrer, 51, 247. not stated in answer or bill, cannot be used by defendant, 216, 217, 219. raised by pretence, put in issue by answer, 219. vrithiu knowledge of defendant, less certainty, 92 — 112. — See Vagueness. to be stated with sufficient particulars, 118 — 156. — See Pabticularitt. FAIRLY, facts to be stated, 150—152. FEOFFMENT, allegation of deed unnecessary, 60. FOEM, Court of Equity for sake of, ought not to do injustice, 246. defects of, how to be raised, 248. — See Demurbee. INDEX TO TREATISE. 361 FRAUD, when matter of iiitention is a fact as well as conclusion of law, 34-39. by misrepresentation, is a question of law, Si, 35. general charge of, needs an answer, 35—39. better to state facts, 37. need not be charged eo nomine, 39. when particulars of fraud necessary for particular decree, 39. not material to decree, 40. when conclusion of law, facts to be stated some way, 34 — 45. may be in general terms, 45 — 47, 78, 125. what terms sufficient, 82. what ambiguous, 82. ambiguity as to persona, 88. vagueness in statement of, from insufficient facts, 72 —74, 77, 78. facts showing constructive fraud may be charged generally where known to defendant, 130. relief can be had on grounds of, and other grounds also, 178 — 180. FRAUDS, STATUTE OF, compliance with regulations of, need not be averred, 67 — 60. — See AGEEEMElfT ; ASSIGNMENT ; FEOFFMENT; TRUST ,- Will. must be pleaded specially, 230, 231. unless no answer required and put in, 231. FUXLT AND FAIKLT, case to be stated, 150— 152.— /See Pak- TICULAEITT. FURTHER ANSWER.— &e Answeb. GIST OF SUIT, matters which go to, to be specially pleaded, 230-232. GRAJNT of incorporeal hereditaments, how stated, 61. IMPLIED BY LAW, things, need not be pleaded, 64. INCONSISTENCY in allegations, ground of demurrer, 79. INCONSISTENT fas±s.—See Relief; Vagueness; Facts. relief. — See Relief. INCUMBRANCES, pretence of, unnecessary, 132, 210—212. INDEFINITENESS, in case for relief, fatal, 88, 89. " or some of " defendants, collusion by, 88. liable, 89. " or otherwise," in right thereof, 89. L. • K 362 INDEX TO TREATISE. INDENTURE, how stated, 60, 61. INDUCEMENT, matter of, may be stated more loosely than the gist, 146. INDUIyGENCE as to statement of facts in opponent's knowledge, in bUl, 92—112. in answer, 216, 217. INEANT, where, is concerned, Conrt indulgent, 161. INFERENCES of law and not of fact raised by demtm-er, 20, 113. of fact. — See AEGtTMENTATiVE Pleadings. INEORMATION, statement as to plaintiff's, insufficient, IIS. in answer or plea, when sufBcient, 217 n., 222, 229,n.(«). INJUNCTION, special case for, to be made, 192. INQUrRIES, when directed to obviate surprise, 120, 124, 125, ground for, to be laid by facts stated and proved, 189, 190, 257. to dispense with, facts to be stated and proved, 190 — 192, 258. required by defendant, answer must raise, 227. may be given on facts appearing in plaintifi 's evidence only, 220, 221. INSANITY, question of fact, 113. may be alleged in general terms, 124. defendant's knowledge of is a matter of scientific opinion, and facts should be given, 113. weak and feeble understanding, almost approaching to idioiy, not certain allegation of, 81. INSOLVENT, defendant had died, allegation that, allowed, 125. was largely indebted, that, allowed, 125. that his debts appeared in his schedule, 134. INSUEEICIENT, facts, vagueness from, 72— 18.— See VAGUENESg. particulars, vagueness from, 87, 131.— j plea to main charge, 229, 230. doubtful legal title not settled by, 230. where simple defence should be raised by, 230. if raised by answer, no costs, 230. gist of the suit, matters of law which do not go to, to be specially pleaded, 230. Statutes of Frauds or Limitations, 230 — 232. unless no answer required, 231, 232. purchase for value without notice, 231, 232. to amended bill, when overruled by answer to original bill, 242. answer to original bill may be read to counter- plead, 242. Limitations, Statute of, matter to take case out of, ought to be stated in original biU to avoid plea, 244. no notice, of, may be in general terms, 67. answer and demurrer to different parts of bUl must state parts to be covered by plea and demurrer, 255. PLEADINGS, at law more technical and precise than pleadings in equity, 3 — 5. taken most strongly against pleader, 21, 79. in equity, ancient, 3 — 6. modem, 6 — 11. object of, 9. need only be substantially certain, 6, 8, 27 — 29, 62, 64, 107, 108, 110. special, explained, 201 — 205. objects of, attained by amendments of bill, 203, 204. use of "pretence" instead of amendment, 205—207. POINTS AKD EELIEF.— ;&e Eblief. POSITIVE AjSTD direct, averments of fact must be, 115 — 117. information, belief, in bill, not sufficient, 115. in answer, is when, 117, 224. charge to the contrary when sufficient, 115. as a statement by one defendant, insufficient, 116. rule only applies to matters essential to plaintiff's case, 116. when charge that defendant claiim, sufficient, 29, 70, 92, 117, 127. ■ PEATER— iSfee Relibp. PEECISION, in plea, greater than in answer, 228. PEETENCE, by way of anticipation, 201—207. points the charge, 207, 208. to put claims in issue, 208, and n. (ji). puts nothing in issue where facts not stated, 209, n. INDEX TO TREATISE. 367 PRETENCE-co«f (■«(«(?. of a mere claim puts fact of claim in issue, 70, 210. sufficient to obtain discoreiy from defendant, 213. of defendant's title, when facts to be stated or acts asserting it, 210.— See Claim. of incumbrances in mortgage suit, unnecessary, 132, 210—212, of matter to obtain discovery, unnecessary where discovery material to complete relief, 211, 212. facts of plaintiff's case may be stated by, and charge to the contrary, 212. if pretence is of a fact or charge states the facts, 213. of conclusion of law and charge to contrary raises no issue, un- less the facts stated, 213, 219, 220. defendant's title or facts stated by waj of, legs certainty re- quired, 213. charges in avoidance of, require more strictness, 213. PEOLrSITY, effact of, on costs, 156. to be avoided in original bill, 242. PUECHASE, for value without notice to be specially pleaded, 231, 232. EECEIVEE, special case for, to be made, 192, " EEFER, craves leave to," effect of the reference, 153 — 156. EEGrTLATIONS imposed by statute, compliance with, when need not be averred, 57 — 61. EELIEE, demurrer to, bars incidental discovery also, 255. what indefiniteness in case for, allowed, 88, 89. points and, on which plaintiflE relies must be clearly indicated, 167—185. reasons of the rule, 157, 158, 162, 164, 166. prayer for further relief, under, 158 — 170. rule in earlier cases, 159— 1€3. relief inconsistent with prayer must have been dis- tinctly pointed to, 159—162. relief additional to prayer, only facts entitling to, need have been alleged, 162, 163. rule in modem cases, 163 — 170. relief must be clearly referred to in bill or prayer, 163. relief inconsistent with prayer must be clearly and separately pointed at, 163 — 165. relief additional to prayer must be clearly pointed at by charges or prayer, 165 — 168. query, whether need be express charge if arrange- ment of facts point to it, 167, 168. enactment of statute, examined, 169—171. 368 INDEX TO TREATISE. "KEUEF—oimtinued. altematire, may be asked by bill, 171. alternative inconsistent, whether it can be asked by biU, 172 — 177. cannot be asked in inconsistent characters, 177. according to cases of original or amended bill, 240. grounds 'of, can be asked on ground of fraud and other grounds also, 178—180. same, may be asked on different, 180, 181. difEerent grounds for, may arise from same facts, 180. and should be distinctly raised, 181. should not be stated raguely, 181—184. technical terms not necessary to express, 181. where vague, taken against pleader, 181. instances where fatal, 182. will not matter where same relief can be had in any case, 183. how it differs from vagueness in statement of facts, 183. may appear in prayer only, 184. prudent to state them in body of bill, 184, 185. SCIENTIFIC OPINION', defendant's allegation of, insufficient, 113. defendant " knew testator was sane," 113. facts known to defendant to be stated, 114. SHAEEHOLDEB, title how stated, 80, 50—54. SUBSTANCE, defects of, how to be taken advantage of, 2i8.—See Dbmtjehee. SUPPLEMENTAL ANSWER.— >See Auswee. TECHNICAL TEEMS, may be used to give effect of instrument, when, 90, words of instrument to be used, when, 90, 151. not necessary to express grounds of relief, 181, TIME, when material to be mentioned, 87. " on or about," how may be used, 87, 88. " many years ago," when vague, 81. to identify deed or fact, to be laid, 127. in plea to Statute of Limitations, 129. See INTEBEOGATOEIES. TITHES, title to, how stated, 32. TITLE, is conclusion of law, facts of, must be given, 26 — 33. need only be substantially given, 27, 28, INDEX TO TREATISE. 369 TTIl.^—contiMied. reference to instrument must be made, 33. substance must be given unless instrument accessible to defendant, 133. through succession of wills, how stated, 133. defendant's, may be stated very generally, TO, 92, 210, 213. only necessary to show defendant claims, 70, 210. unless to make him disclaim and pay costs, 70, 210. when acts done in assertion of, or vexing plaintiff, 70, 210. A7ld see CLAIM ; DEPENDANT ; PRETENCE. plaintiff's, how stated, 187—189. vagueness in statement of, from insufficient facts, 74, 75. TRAVERSE, where no answer and none required, it is a, 214. answer is a, of what does not expressly admit, query, 214, n. (J). argumentative, bad, 222. TRUST, facts showing, must be stated, 21 — 24. intention of testator to negative trust in executor, alleged generally, 126. declaration of, need not be stated to be in writing, 69. some indefiniteness in statement of, allowed, 95. breach of, facts to be given, 24. facts vaguely alleged, 75. lOTDUE PRACTICE may be stated in general terms, 124. VAGUENESS, insufficient facts, from, 72. fraud, 72—74, 77, 78. title, 74, 75. breach of trust, 75. accounts, 75 — 78. inconsistency, from, 79. ambiguity, from, 79. distinct issues to be raised on each alternative, 79. inmnaterial where same relief in any case, 79. pleading will be taken against pleader, 79. instances of. — See AmbiguotJs Statements. fatal only in part, when, 79, 112. argumentativeness, from, 84. how differs from an implied statement, 84. rule against, need only be substantially complied with,j«., 85. follows from statute, 86. ■ required to raise distinct issues, 86. defect cannot be remedied by prayer, 86. _ insufficient particulars, from, 86 — 88. time, place, &c., when to be mentioned, 87. indefiniteness in case for relief, from, 88, 89. "or some of" defendants, collusion by, 88. liable, 89. " or otherwise," common of pasture, in right thereof, 89, 370 TNDEX TO TREATISE. VAGUENESS— comimMe*?. conclusion of law, from statement of, 72. technical terms, need not, but wiay, be used, 89, 90. words of instrument may be used, 90. admissions, to cure, allegations of, 90, 91. must be of facts, 90. of law, insufficient, 90. must be clear, 91. and unambiguous, 91. court will look to whole bill, 91. facts within knowledge of defendant, less certainty, 92 — 112. defendant's case, 92, 93. plaintiff's case, 93 — 112. some tndefiniteness allowed, 95 — 98. reason, thereof, should appear, 98. must be clear there is some and what sort of equity, 98-103. convenient certainty only required, 102. gu. whether greater strictness when in aid of legal rights, 103—112. for discovery, must show case fairly open to trial at law, 97. in grounds of relief, 181 — 184. WAIVER of a right, when facts to be given, 19. WELLS, statement of, how made formerly, 62. now, 61—63. probate, how stated, 63. title through succession of, how stated, 133. INDEX TO FORMS. ACCEPTANCE OE TRUSTS, 278, 281. ACCOtTNTS, mortgagee, against, 261 — 265. mortgagor, against, 259. opening, 303. profits by infringement of patent, 816. piracy of copyright, 307. of trade mark, 313. ■wrongful uses of trade name, 316. trustee, against, 292. settled, 304. stated, 303. surcharge of, 305. ACTION AT LAW, threat to commence, 327. injunction against, 326. ADMINISTRATION, bUls for, by administrator, 275. creditor, 273. infant cestui que trust, 276. legatee, 280. next of kin, 273. representative of legatee for legacy appropriated, 280. letters of. — See Lettbes. ADMISSIONS, charge of, 279, 321. direct, by answer, 345. AEEIDAVIT, want of demurrer for, to interpleader biU, 389. AGREEMENT, for lease, 271. performance of, by plaintiff, 272. ALTERNATIVE RELIEF, 265, 272. ANSWER, forms of, 345—349. and disclaimer, 346. 372 INDEX TO FORMS. APPLICATION, for accormtB from mortgagee, 263. accounts of partnership, 304. delivery of chattels, 300. information, 295, 296. redress in other cases, 314, 324. ASSENT to bequest by executor, 286. ASSETS, charge that executor ought to admit, 284. in hands of executor, 278. misapplication of, 278. BANKRUPT, assignees of, commencement of bill by, 331. BANKEUPTCT, 275. appointment of assignees under, 275. plaintiff's, plea of, 341. BELIEF or remembrance, answer as to, 347. BILLS, bin for foreclosm-e of mortgage of freeholds — injunction to re- strain waste by mortgagor, 259. bill by mortgagor against mortgagee in possession for redemp- tion of mortgaged freeholds, with charges as to deterioration, dilapidation and Texatious delays on the part of the mort- gagee, 261. bill by bank entitled to an equitable mortgage for a sum due on a biU of exchange and for further advances, claiming priority over a subsequent legal mortgagee, for foreclosure, and to be allowed to redeem i£ part of the charge not entitled to priority, 265. bill by vendor for specific performance of an agreement for sale of a freehold estate, with charges as to acceptance of title, 269. bill by intended lessee against lessor for specific performance of agreement to grant lease, and claim for damages, 271. short bill for administration of intestate's estate where next of kin not all known, by one next of kin against administrator, 273. short bill by creditor against executrix for administration of real and personal estate, 273. short bill by administrator, against assignees in bankruptcy of intestate, for administration, 275. bill by an infant cestui que trust for administration of real and personal estate directed to be sold, charging the executor and trustee with devastavit, and asking for appointment of new trustee, 276. bill by administr^r of legatee for limited, administration of testator's estate against executors and devisees of surviving executor and trustee, and for payment of funds appropriated to payment of legacy, 280. INDEX TO FORMS. 373 BILLS — continued,. bill by legatee against executor and trastee to set aside a deed of gift to defendant for fraud and want of independent ad- fice, for administration, receiver, and to restrain defendant from obtaining, &c. funds, 285. bill against a solicitor and trustee under a deed to set it aside, as made in fraud of marital rights, and for discovery, 290. bill by married woman against trustee of marriage settlement and will, for an account for removal of trustee, and appoint- ment of new trustee, 292. bill for specific deliveiy up of heir-looms against executor, and injunction against disposing of them, 298. bill by executi-ix of deceased partner to wind up partnership and to surcharge and falsify accounts, 301. bill for an injunction to restrain the infringement of a copy- right, and for an account, 307. bill for an injunction to restrain the infringement of a trade mark, and for an account of profits realized, 310. bill for an injunction to restrain the infringement of a patent and use of plaintiff's name, for an account of profits and for compensation, 316. bin to restrain obstruction of light to a dweUing-house, and for damages, 323. bill of interpleader and injunction to stay actions at law, 326. bill of revivor, 329. biUs, other commencements of, 330 — 332. CANCELLATION Or DEED, 285, 290. CLAIM, assertion of, 327. by defendant, plea denying, 341. CODICIL (since Wills Act), 285. COMPAJinr, commencement of bill by, 265. COPTRIGHT, damages by piracy, 308. injunction against piracy, account of profits by piracy and damages, 307. piracy described, 307. COEPORATION, ans\ver by, alleging ignorance, 347. commencement of bill by, 330. COERESPONDENCE, summary statement of, 263, 283. COVERTURE OP PLAESTTIPP, plea of, 341. CREDITOR, on behalf of others, bill by, 273, 331. 374 INDEX TO FORMS. DAMAGES, claims for, 262, 308, 313, 816. . in place of specific perf onnance, 272. DEATH of intestate, 273, 275. of testator, 274, 278. without revocation of codicil, 285. DEED stated for discovery, 290. DELAY, cause of, 300, 312. vexatious, by mortgagee, 264. DELIVERT UP OF CHATTELS, specific, 298. DEMURRER, and answer, 339. forms of, 338—340. DETERIORATION', by mortgagee lu possession by repeatedly offering for sale, 262. DILAPIDATION, by mortgagee in possession, 262. DISCLAIMER, and answer, 346. by plea, 341. statement of, 278. DISCOVERT, answer refusing, where, relating to defendant's title, 348. case for, 290. demurrer to, where, would subject defendant to pains and pe- nalties or forfeiture, 339. plea to, where matter privileged, 344. DOCUMENTS, charges as to, 264, 279, 296, 307, 314, 321. relating to defendant's title, objection to produce, by answer, 348. EQUITY, want of, demurrer for, 338. FRAUD, charges of, actual and eonstmctive, 288, 291. discovery of, 288. marital rights, on, 290. misreprescLtaiion by, 286. statute of, answer claiming benefit of, 348. demurrer raising, 338. INDEX TO FORMS. 375 HUSBAND AND "WEFE, commencement of bill by, 330. IGNORANCE, _ answer alleging, 346. by corporation alleging, 347. INDEPENDENT ADVICE, absence of, 287. INEANT, answer by, 347. commencement of bill by, 276. INEORMATION, applications for, 295. particular instances of, 296. at relation of some on behalf of other parishioners, 332. on behalf of Crown, &c., 332. on behalf of lunatic having no committee, 331. INJinsrCTION against obstruction of light, 323. actions at law, 326. infringement of copyright, 307. of patent, 316. parting with chattels, 298. use of trade mark, 310. name, 316. waste, 260. INQUIRY, as to damages, 262, 308, 313, 316. deterioration and dilapidation, 264. title, charge to obviate, 270. INSOLVENT, assignee of, commencement of bill by, 331. INTEREST, want of in subject-matter, demurrer for, 339. INTERPLEADER, bill of, 326. INTERROGATORIES, as to documents, 335. forms of, 332—337. in administration suits, 336. JURISDICTION, plea to the, 340. LETTERS, summary statement of, 263, 283. LETTERS OF ADMINISTRATION, before Probate Act, 275, 282, 286. since Probate Act, 273, 275. 376 INDEX TO FORMS. LIGHT, enjoyment of ancient, 324. injunction to restrain obstruction of, 323. LIMITATIONS, STATUTES OF, plea of, 342. LUNATIC, commencement of bill by, 330. MARRIAGE, 282, 290, 293. settlements, 290, 292, 298. MORTGAGE, equitable, statement of, 266. foreclosure of, 259, 265. priority, claim of by bill, 265. by answer, 397. redemption of, 261. statements of, 259, 261. MORTGAGEE, dilapidation and deterioration by, 262, 263. entry into possession by, 262. equitable, answer of, claiming priority, 347. MULTIFARIOUSNESS, demurrer for, 338. MULTIPLICITY OF SUITS, objection by demurrer, 338. NOTICE, charge of, actual and constructive, 267. denial of, 267. OBSTRUCTION OF LIGHT, description of, 324. injunction against and damages for, 323. OFFER, to redeem, 264. to perform agreement, 272. to do equity, 288. PAINS AND PENALTIES, demurrer where discovery would subject defendant to, 339. PARTIES, want of, demurrer for, 339. objection for, by answer, 347. PARTNERSHIP, 301. accounts stated, 303. winding up, 303. INDEX TO FORMS. 377 PATENT (LETTERS), 316. established at law, 323. infringement of, injunction against, account of profits by, and damages, 316. infringements of, description of, 318, 319. PEKFORMANCE of stipulations of agreement, 272.— See Spe- cific. PLEA, and answer in support, 341 — 343. and answer in support and answer in subddium, 341, 342. forms of, 340-344. to relief and part of discovery, 344. PRETENCE, of a charge claimed by a defendant, 260. of other charges upon a mortgaged estate, 260. second legal mortgage, 267. PRIORITY, answer of equitable mortgagee claiming, 347. claim of, by mortgagee in bill, 267. PRIVILEGED MATTER, plea to discovery of, 344. PRIVITY between plaintiff and defendant, want of, demurrer for, 338. PROBATE, before Probate Act, 278, 281, 283, 294. rmder Probate Act, 274. PURCHASE for value without notice, plea of, 341. REGISTRY, in Middlesex registry, 266. RELEASE, plea of, 343. RELIEF, alternative, 265, 272. REJIEilBRANCE OR BELIEF, answer as to, 347. RESTS (YEARLY), charge to obtain accounts -nith, 262, 263. SALE AND CONVERSION, 282. SALE BY AUCTION, 269. SETTLED ACCOUNT, 304. SPECIFIC, delivery up of chattels, 298. performance of agreement for lease, 271. for sale, 269. STATED ACCOUNT, 303. L. S 378 INDEX TO FORMS. STATUTE OF FEAITDS, answer claiming benefit of, 348. demurrer raising, 338. STATUTE OF LIMITATIONS, plea of, 342. STRANGER to facts of bill, answer by, 346, 347. TENDER of mortgage money and reconveyance, 263. TITLE, as next of kin, 273, 276. charge of acceptance of, 270. of Tendor in suit for specific performance, 269. of lessor in suit for specific performance, 271. to heir-looms, 298. access of light, 324. copyright, 308. trade mark, 310. patent invention, 317. in bill to restrain obstruction of light, 323. mider wills and administrations, 282. TRADE MARK, injunction against use of, damages by infnngement of, and account of profits, 310^-314. piracy of, described, 312. TRADE NAME, injunction against use of, 316. TRAVERSE, general, by answer, 346. simple, by answer, 345. special, by answer, 346. TRUST, acceptance of, 278, 281, 283. breach of, 278, 279, 292. refusal of, 278. TRUSTEE, removal of, 296. VENDOR, title of, in spedfic performance suit, 269. "WASTE, charge of, apprehended, 260. prayer for injunction against, 260. WIFE, suing by next friend, commencement of bill by, 292, 330. suing with husband, commencement of bill by, 330. WILL, (before Wills Act), 280, 283, 293. (since Wills Act), 273, 277, 285. London : printed by C. Roworth & Sons, Bell Yard, Temple Bar. CATALOGUE ~ Hab «orits PUBLISHED BY MESSRS. BUTTERWORTH, Hato iSoofesellers anti ^uilisSers TO THE QUEEN'S MOST EXCELLENT MAJESTY, AMD TO H. R. H. THE PRINCE OF WALES. **Now for the Laws of England {if I shall speaJe my opinion of them without "partiality either to my profession or country), for the matter and nature of ** themj I hold them wise, just and moderate laws : they give to God, they give to *' Cataar, they give to the subject what appertaineth. It is true they tire as mixt " as our language, compounded of British, Saxon, Danish, Norman customs. " And surely as our language is thereby so much the richer, so ourtaws are like- *' wise by that mixture the more complete." — Xoss Bacok. LONDON: 7, FLEET STREET, E.G. 1877. Q- INDEX TO CATALOGUE. Page Accounts, Law of. Pulling ... 55 Actions at Law. Browne 57 Kerr 58 Williams '57 Administration Bonds. Chadwick 15 Admiralty, Practice. Coote ■ ... 29 Advowsons. Mirehouse 59 Agricultural Holdings. Bund 16 Aliens. Cutler ... 29 Appeals.House of Lords. Denison & Scott ... 24 Arbitrations. Redman 18 Articled Clerk. Mosely 27 Attachment, Foreign, Brandon ... 41 Average. Crump ... 8 Awards. Kedman ... IS Banking. Grant ... 18 Keyser ... 55 Bankruptcy. Kobson 5 Manual. BuUey St Bund ... 46 In County Courts. Davis 10 Index. Linklater... 57 Bar. ' Examination Journal 52 Kalendar. Shaw ... 53 Smith 41 Pearce 56 Barbados. Laws of .. 56 Belligerents. Hamel 55 Bills of Exchange, Grant ' 18 Bills of Sale. Hunt . 14 Blackstone. Stephen's 7 Page Blockade. Deane ... 57 Bookkeeping, Solieitori'. Coombs. 43 Boundaries. Hunt ... 44 Brokers. Keyser ... 55 Burgesses Manual. Gaches 56 Carriers, Inland. Powell ... 34 Baitway. Shelford 17 Chamber Practice. Com.Zaw. Parkinson 58 Chancery Practice. Goldsmith 27 Hunter 58 Chancery Claims. Drewry 12 Drafting. Lewis ... 21 Charitable Trusts. Tudor 38 Church Building. Trower ... ... 42 Pews, Heales ... 42 Church and State. Hale 59 Civil Law. Tomkins & Jencken 34 Claims and Defences, Forms of. Drewry... 12 Collieries. Bainbridge 22 Colonial Law. Barbados 56 Commentaries. Stephen'sBlackstone's 7 Phillimore's ... ... 23 CommonForm Practice. Coote 15 Common Law, Law&Equiiy. Chute 13 Practice. Dixon ... 55 Lush 55 Kerr 58 ■Companies. Grant ... 44 Shelford 17 Compensation, Law of. Ingram ... 38 Shelford 17 Page Consolidation Acts. Shelford 17 Conspiracy, Law of. Wright ... 54 Constitution. May ... 25 Stephen 7 Constitutional Bpstorj-. Fulton "25 Contraband of War. Moseley 41 Deane 57 Contracts, Specific Performance. Fry 53 Contributories. Collier 46 Conveyancing, Introduction. Lewis 21 iPractice. Ball ... 52 Barry 31! Smith 37 Tudor 26 , Forms. Barry ... 36 Crabb 2S Christie 28 Kelly fl Shelford 2S Kouse 32 Convictions, Synopsis of. Oke ... 47 Forms. Oke ... 4S Co-operation. Brabrook 42 Copyholds, jEnfranckisemen i. Kouse 45 Law of. Scriven ... 38 Coroner. Baker ... 56 Corporations in General. Grant 44 Costs, Lata of. Gray... 65 County Courts. Pracbiee. Davis ... 10 FradiceinEguity^Bank^ ruptcy, &c. Davis 10 Practice in Admiraltv. Coote 29 INDEX TO CATALOGUE. Page Criminal Law. Davis 39 Oke... 48 Cnrate^. Field ... 59 Cnstoms Laws. Hamel 9 Deeds. Tudor ... 26 Descents. Fearne ... 58 Dictionary, Law. Mozley & Wliiteley 11 Discovery. Hare ... 22 Divorce. Practice. Browning 53 Domestic Servants. BayJis 40 Draftsman (The). Kelly 31 Drainage. Wilson ... 58 ■Woolrych 26 Ecclesiastical. Practice. Coote ... 59 Judgment. Bayford 59 Burder v. Heath... 59 Gorham Case ... 59 liOiigt). Cape Town 59 Martin v. Macko- nochie 59 Phillimore ... 59 Hebberti?. PuTclias 59 Election, Lam. Davis 35 England, Zaws of. Blackstone 7 Fraucillon ... 57 ' Stephen 7 English. Bar. Pearce 56 Smith 41 Eqnity, Claims. Drewry ... 12 County Courts. Davis 10 Doctrine and Practice. Goldsmith .. 21 Draftsman. Lewis 2 1 "Equitjfli: Law. Chute 13 Judicature. Trower 16 Pleader. Drewry ... 40 Principles. Roberts 12 Suit in. Hunter ... 58 Evidence, County Court. Davis 10 Discovery of. Hare.. 22 Law of. Powell ... 6 Wills. Wigram ..43 Circumstantial ^'i&s 42 _ . ^oge Examinations. Bar Examination Journal 52 Law Examination Journal so Mosely's Articled Clerks'HandyBook 27 Fences. Hunt 44 Final Examination Guide. Bedford ... 20 Fisheries. Bund ... 45 Oke ... 60 Foreshores. Hunt ... 44 'Williams v.Nicholsou 57 Forms, Conveyancing. Barry 36 Crabb 28 Rouse 32 .Magisterial. Oke... 48 Pleading. Chitty ... 54 Greening 57 Probate. Chadwick 1 5 Frauds. . Hunt ... 14 Game Laws. Oke ... 49 Gas Companies Acts. Michael and Will ... 33 Guarantees. DeColyar 12 Highways. Glen ... 60 Bouse of Lords, Dcnison & Scott... 24 Digest. Clark ... 24 Practice. May ... 25 Income Tax Laws. Dowell 34 Indian Penal Code. Analysis. Cutler&Griffin 27 Indian.Statutes, Index. Field 41 Industrial Societies. Brabrook 42 Inns of Court Kalendar. Shaw 53 Institutes of English Public Law. Nasmith 24 Intermediate Examina- tion. Bedford ... 20 Page International Law. ■ Deane ' 57 Hamel 55 Phillimore 23 Intoxicating Liquors Act. Oke 49 Joint Stock Companies. Collier 46 Shelford 17 ■ Accounts. Pulling- 65 Judicature. Bedford' 20 Rogers 35 Trower 10 Webb 35 Jurisprudence. On Form of the Law. Holland 54 Webb 35 Justice of Peace, oke 48 Labour Laws. Davis 5 Land Settlements. Bund... ' 58 Landlord and Tenant. Fawoett 13 Lands Clauses Acts. Ingram Shelford Law Dictionary ... 1 1 Law Student's Mag. 50 Law Studies. Mosely... 27 Smith ... 41 Leading Cases, Real Properly, Tudor 26 Leases. Crabb 28 Rouse 82 LegacyDuties.Shelford so Libel. Starkie 14 Licensing Laws, oke 49 Life Assurance. Blayney 56 Lights (Window). Latham 31 Local Board Election. Glen' 3!) Local Government. Glen 39 Locus Standi. Clifford & Rickards 30 Lunacy. Phillips ... 53 Magisterial Law. oke 47 Forms. Oke ... in A2 4 INDEX TO CATALOGUE. Vage Page Page Marine Insurance. Precedents, Servants. Baylis ... 40 Ctump S Conveyancing. Barry 36 Crabb 28 Sewers. Woolrych ...26- Maritime Warfare. Rouse 32 Deane 57 Pleading. Chitty.jun. 54 Sherifi's Court. Davis 10 Hamel 55 Preliminary Exami- Short Hand. Gumey 56 Masters and Servants. nation Journal ... 52 Slander, starkie ... 14 Bayjis 41) Davis ... ... 5 Principal and Surety. Specific Performance. De Colyar 12 Fry 5» Masters and Workmen. Lovesy 54 Private Bills. Clifford & Stephens . 30 Stamp Laws. Dowell 17 Statutes, Table of Lead- Mayor's.Conrt Practice. May 25 ing. Bedford ... 20 Brandon 41 Private Law. Nasmith 24 Stock Exchange. Keyser 55 Memoirs of -^Lyndlmret56 Talfaurd 56 Prize Law. Lushington 42 Succession Duty. Probate Shelford 3* Mines and Minerals. Bainbridge 22 Practice. Coote ... 15 Pormt. Chadwick 15 Suit in.Equity. Hunter 58 Dutiet. Shelford ... 39 Summarv Convictions. Mortgages. Fisher... 19 Rouse... 32 Provident Societies. Oke :. 48 Brabrook 42 Tariffs and Treaties. Municipal Law, Caches 56 Public Law. Nasmith 24 Hamel » Hertslet 36 Grant 44 Railways, shelford ... 17 Tenancies, Agricul- Naturalization. Cutler 29 Compensation, Ingram 38 Real Property. Tudor 26 tural. Bund ... IS Negligence. Saunders 33 Time Table. Bedford 20 Parliamentary. Chart. Fesme ... 68 Seaborne ... ... 40 Torts. UnderhiU ... 31 Clifford 8[ Stephens . 30 Trade Marks. Adams 30 May 25 Referees' Court. Partition, Law of. Clifford* Stephens. 30 Treaties. Hertslet ... SS Lawrence 44 Registration. Davis... 35 Trusts, Charitable. Tudor 38 Partnership. Dixon . 33 Tudor's Pothier ... 57 Religions, Doctrine. Burdec v. Heath 59 Turnpike Laws. Oke 49 Patent Cases. Higgins37 Ductpljfze. LongB.CapeTown 59 Vendors & Purchasers. Seaborne 40 Patents. Norman ... 57 Petty Sessions, oke. 48 Reporting Cases. Cutler 56 Water Companies Acts. Michael & Will ... SS Pews. Heales 42 Pleading, Common Laa.Cbitty 64 Greening 57 Williams 67 Ritual. Bayford ... 59 Hamel ... 59 Roman Law. Gains . 39 Ortolan's 30 Tomkins 40 Tomkins & Jencken 34 Wills. Coote ... „15 Crabb 28 Tudor 26 Wigram ... 4S Winding-up. Collier 46 Shelford .... ... 17 Eguity, Drewry ... 40 Window Lights. Levis ... ... 21 Salmon Fisheries. Bund 45 Latham ... .» 31 Poor Law, Orderj. Glen 53 Oke ... „ ... 49 Wrongs. UnderhUl... 31 ,5 ^ ©- f ato MQxhB ^uhM^t'a h^ IT^ssrs, gxtttefonrtlj. ROBSON'S BANKRUPT LAW.— Third Edition. A TREATISE on the LAW of BANKRUPTCY ; containing a full exposition of tlie Principles and Practice of the Law as altered by the Bankruptcy Act, 1869. With an APPENDIX of the Statutes, Rules, Orders and Forms. By George Young Robson, Esq., of the Inner Temple, Barrister at Law. Third Edition, thoroughly revised, and with the latest decisions. 8vo. 385. cloth; 43s. calf. In the new edition we observe that the Addenda to an unusually recent date. the author has used his best endeavours to maintain the credit of his work. He has diligently collected the cases decided on bankruptcy law and practice since 1872, and has set forth in the proper places in the volume the substance of the decisions contained in those cases; and we further observe that he has taken pains to give references to the various sets of reports, so as to render his book in this respect of equal value to every practitioner. The Appendix of Mr. Rob- son's book contains the text of the Act of 1869; that of the Debtor's Act, 1869; and all the rules, orders and forms under those Acts. There is, also, a copious Index, in which we notice that im- portant titles are abundantly supplied with sub-headings. Thus, under the title ' Reputed Ownership* there are up- wards of no sub-headings. Any one to whose lot it has fallen to grapple with questions in bankruptcy practice will appreciate this part of the author's labours." — Zaw Journal. " We have always considered the last edition of Mr. Robson's book a model of careful editing, and in our opinion this edition does not fall below the same level- The new decisions are brought down in and are noted with great accuracy. There is no scissors-and-paste work here; the efTect of the cases is weighed and their result stated in as few words as possible. Mr. Robson is very cautious, and does not frequently volunteer an opinion, hut he nevertheless occasionally draws atten- tion to mistaken views of the law, and flaws which ought to be amended by the legislature." — Solicitors' Jouimal. " We welcome the third edition of Mr. Robson's Law and Practice in Bank- ruptcy. No alteration has been made in the scheme of the work, and none was required. The author does not pre,- tend to have done more than to revise the text and index and note up the cases. We have already expressed a high opinion of the work, which has been confirmed by frequent reference to its pages." — Zaw Times. " Suffice to say, that forming an esti- mate from an intimate acquaintance with this woik of old and a caref'U con- sideration of the present edition, we would bespeak for it a reception in this country no;Iess favourable than it has ■ deservedly experienced in England." — Irish Law Times, DAVIS'S I.ABOUR LAVTS OP 1875. THE LABOUR LAWS OF 1875, with Introduction and Notes. By J. E. Davis, Esq., Bamster-at-Law, and late Police Magistrate for Sheffield. 8vo. Vis, cloth. *' We advise the practitioner to arm himself with what will probably be the standard work on the subject. He will find the arrangement good, and the ex- planation of the procedure exceptionally lucid." — Law Magazine. " This is a class of book which is very much wanted, and should receive every encouragement. Mr. Davis saysthathis object has been to combine a popular comment with a strictly practical treatise. In this he has succeeded. The book is in every respect careful and thoughtful, it gives the best reading of the law which we have, and furnishes in extenso all the Acts of Parliament relating to the subject." — Law Times. "Mr. Davis's book is not a reprint of the acts with a few notes, but an original and complete treatise, and it will be ap- preciated by those who are concerned in the working of the labour laws." — Law Journal. "A good book on this subject should fulfil two distinct functions by no means easy to combine, Mr. Davis has, in our opinion, successfully fulfilled both these requisites, and may be congratulated upon having produced a book which will probably become the standard w(Jrk on this important subject." — SQlicLtors* Journal. POWEZiZi ON EVIBENCE. 3y CUTLER and GRIFFIN.— Fourth Edition; . POWELL'S PRINCIPLES and PRACTICE of the LAW of EVIDENCE. Fourth Edition. By J. Cutlee, B A., Professor of English Law and Jui'isprudence, and Professor of Indian Jurisprudence at King's College, London; and E. F. GrRiFFiN, BA., Barristers-at-Law, PostSvo. 18s. cloth; 22s. calf. *** TJiis edition contains the alterations necessary to adapt it to the practice under the Judicature Acts, as well as other material additions. TJie Banker^ Book Evidence Act, 1876, is given as an Addenda to t/te Appendix of Statutes. "The editors of this work put forward 'no claim to that exhaust! veness which other works dealing with the law of evi- dence aim at.' Their desire, on the contrary, is to * adhere to the principle* of their author ' of not overloading tlie hook with cases.* We heartily ap- prove the principle; which, however, is somewhat difficult of application. "We must add, however, that in most in- stances the cases are tersely abstracted, and the convenience of the reader is consulted by references to more than one set of reports. The plan of the book is to give pretty frequently, and, as far as we can discover, in almost every chapter, a ' rule ' of general appli- cation, and then to group the cases round it. TheSe rules or axioms are printed in a distinctive type. The work has been pruned and remodelled by the light of the Judicature Acts. The authors give in an appendix the Indian Evidence Acts, with some Indian deci- sions thereupon, and occasionally notice these acts In the text. On the whole we think this a good edition of a good book. It brings down, the cases to the latest date, and is constructed upon a model which we should like to see more generally adopted."— ^o^zczVors* Jouimal. *' The plan adopted is, we think, an admirable one for a concise handy-book on the subject. Such maxims as that * hearsay is inadmissible,' are given at the head of the chapter in large type, and then follow the explanations. The Indian code of evidence given at the end of the hook deserves to be read by every student, whether going to India or not. The few rules of the English law of evidence which are purely statu- tory are also given verbatim, including the two orders of the Judicature Act, 1S75, which appear to be correctly ap- preciated. The present form of Powell on Evidence is a handy, well printed and carefully prepared edition of a book of deserved reputation and authority.'* — LoAB Journal. " We have received the fourth edition of 'Powell's Principles and Practice of the Law of Evidence,' by Cutler and Griffin. We are informed in the preface that the results of the Judicature Acts as regards evidence have been duly noted, whilst the work itself has been rendered more comprehensive. It is an excellent summary of principles." — Law Times^ " There is hardly any branch of the law of greater interest and importance, i\ot only to the profession, but to the public at large, than the law of evidence. On this branch of the law, moreover, {IS well as on many others, important changes, have been effected of recent years. We are, therefore, all the more in- clined to welcome the appearance of the Fourth Edition of this valuable work." — Law Examination Journal. "In Powell's Law of Evidence, of which a fourth edition by Messrs. Cutler and Griffin has now been published, the Indian Evidence Act and the rules of evidence adopted in the Anglo-Indian courts occupy a prominent place, and while this must form a special recom- mendation of the work to students in- tending to go to India, it is a feature which others besides will find reason to appreciate. To the general practitioner, however, the main value of the work, must cpnsist in its treatment of the law prevailing in this country and in England, and in this respect we confi- dently recommend the work to our reaclers. The principles and practice of the law of evidence in equity are also more fully treated than in any modern work on evidence with which we are acquainted, and the provisions of the Judicature Act, as well as the new English rules, have been incorporated with this edition, besides many impor- tant statutes passed since the date ( 1868) of the preceding edition. To the stu- dent we know no work on the law of evidence we could more strongly recom- mend, and both branches of the profes- sion will find Powell's Law of Evidence a work which can be consulted with confidence."— /mA Law Times. o- MESSRS. BUTTERWORTH, 7 FLEET STREET^ E.C. 7 STEPHEN'S NEW COMMENTARIES.-7tli Edit, 1874. Mr. SEEJEANT STEPHEN'S NEW COMMEN- TARIES ON THE LAWS OF ENGLAND, partly founded on Blackstone. The Seventh Edition, by James Stephen, Esq., LL.D., Judge of County Courts, late Professor of English Law at King's College, London, and formerly Recorder of Poole. 4 vols. 8vo. 4:1. 4s. cloth; 5^. calf. "The position of the Work in reference to the Judicature Act, 1S73, also seems to call for some remark, as the profession will naturally wish to know whether the changes introduced by that important measure will be found embodied in the present edition. To this question I reply that the chief enactments of that Act will be found in these pages, and that I have explained their effect to the student throughout to the best of my a.hilitY."—JExtract/ivm the Preface to the Itk Edition. From the '^Law Journal.'* *• It is unnecessary for us on this occa- sion to repeat the eulogy which six years ago we bestowed, in lS68,not without just reason, on theCommentaries as they then appeared. It has been remarked that Stephen's Commentaries enjoy the spe- cial merit of being an educational work, not merely a legal text book. Their scope is so wide that every man, no matter' what bis position, profession, trade or employment, can scarcely fail to find in them matter of special in- terest to himself, besides the vast fund of general information upon which every Englishman of intelligence may draw with advantage," From tite " Solicitors' Journal" " A work which has reached a Seventh Edition needs no other testimony to its usefulness. And when a law book of the size and costliness of these * Com- mentaries' passes through many edi- tions, it must be taken as established that it supplies a need felt in all branches of the profession, and probably to some extent, also, outside the profession. It is ciifBcult indeed to name a law book of more general utility than the one before us. It is (as regards the greater part) not too technical for the lay reader, and not too full of detail for the law student, while it is an accurate and (considering its design) a singularly complete guide to the practitioner. This result is due in no small degree to the mode in which the successive editions bave been re- vised, the alterations in the law being concisely embodied, and carefully inter- woven with the previous material, form- ing a refreshing contrast to the la- mentable spectacle presented by certain works into which successive learned editors have pitchforked beadnotes of cases, thereby rendering each edition more unconnected and confusing than its predecessor. As the result of our examination we may say that the new law has, in general, been accurately and tersely stated, and its relation to the old law carefully pointed out." From the " Law Times.'* "We have in this Work an old and valued friend. For years we have had the last, the Sixth Edition, upon our shelves, and we can state as a fact that when our text books on particular branches of the Law have failed us, we have always found that Stephen's Com- mentaxies have supplied us with the key to what we sought, if not the actual thing we required. "Wethink tliat these Commentaries establish one important proposition, that to be of thorough prac- tical utility a treatise on English Law cannot be reduced within a small com- pass. The subject is one which must be dealt with comprehensively, and an abridgment, except merely for the pur- poses of elementary study, is a decided blunder. Of the scope of the Com- mentaries we need say nothing. To all who profess acquaintance with the English Law their plan and execution must be, thoroughly familiar. The learned Author has made one con- spicuous alteration, confining * Civil Injuries ' within the compass of one volume, and commencing the last volume with * Crimes,' — and in that volume he has placeda Table of Statute;;. In every respect the Work is improved, and the present writer can say, from practical experience, that for the Student and the Practitioner there is no better Work published than 'Stephen's Commentaries.'" From the " Law Examination Journal." "This most valuable work has now reached its Seventh Edition. Those who desire to take a survey of the entire field of English Law cannot do better than procure this work. For a general survey of the entire field of English Law, or, at least, for a comparative survey of different branches of law, Stephen's Commentaries are unrivalled; and we may observe that these Com- mentaries should not be used merely as a book of reference, they nhould be care- fully studied." 0- s LAW WORKS PUBLISHED BY CRUMP'S PRINCZFZiES OF MARINE INSURANCE. THE PRINCIPLES OF THE LAW RELATING to MARINE INSURANCE and GENERAL AVERAGE in England and America, with occasional references to French and German Law. By F. OcTAVirs Ckitmp, of the Middle Temple, Esq., Barrister at Law. In 1 vol. royal 8vo. 21s. cloth; 26s. calf. "This is decidedly a clever book. We always Tvelcome cordially any genuine effort to strike out a new line of legal exposition, not merely because such effort may more effectually teach law, but because it may exhibit a better method than we now possess of ex- pressing law. We have been at pains to search the book for many of the most recent cases in marine insurance, and although some of them are exactly of a character to puzzle and embarrass a codifier, Mr. Crump has dealt success- fully with them. We think we may fairly congratulate the author upon the production of a work original in design, excellent in arrangement, and as com- plete as could fairly be expected." — Law Journal. '* The principles and I>ractice of general average are included in this admirable summaxy."— Standard. "Mr.'Crump, we may observe, in this treatise of the law of ^verage and in- surance, has supplied a ready armoury of reference." — Shipping and Mercantile Gazette. " Alphabetically arranged this work contains a number of the guiding prin- ciples in the judge-made law on this subject, which, has got into such a tangle of precedents that a much less careful digest than that under the above title would have been welcome to stu- dents as well as merchants. Mr. Crump has made a very commendable effort at brevity and clearness." — Economist. "There are many portions of it well arranged, and where the law is carefully and accurately stated."— Z-aio Magazine. "We rejoice at the publication of the hook at the head of this notice. Mr. Crump is a bold man, for he has positively made aninnovation. Instead of a ponderous tome, replete with obso- lete law, useless ailthorities, and anti- quated quotations, we have a handy, clearly written, and well printed book, seemingly containing the whole law on the subject, in the shape of a digest of decided cases, in the very words of the judges, and leaving nothing doubtful and misleading to beguile the reader. It is true that such a plan increases the trouble of the author, butas it diminishes that of the reader he may pardon the irregularity. Seriously speaking, Mr, Crump's book seems very perfect, and is certainly very clear in its arrangement and complete in its details, conscien- tiously going into the most minute points, and omitting nothing of import- ance." — Irish Law Times. " It is at once a treatise and a dic- tionary on the difficult and complicated branch of the law with which it deals, and to which Mr. Crump has in this volume done something to give an orderly simplicity."— iJai^y News. '* Considering the narrow compass within which it is comprised, we have been surprised to find how complete and comprehensive it appears to be, and if further experience should ^stify the expectations which our perusal of it induces us to form, Mr. Crump will not be' disappointed in his hope that he has made a step in advance towards simpli- fication — not to use the term codification —of the law." . . . "The work, which must have involved great laliour, appears to us to have been executed with fulness, accuracy and fidelity, and its value is much increased by references, not only to English and American decisions and text writers, but to the French and German law oji the same subject." — Solicitor^ Jowrnal. " The plan of the book differs mate- rially, and, we think, advantageously, from the ordinary text book. By this system several advantages are secured. Wehave examined several of Mr.Crump's propositions in order to test him on these points, and the result is decidedly in his favour. We have no hesitation in com- mending the plan of Mr. Crump's book. Its use in actual practice must of course be the ultimate gauge of its accuracy andcompleteness, but from the tests ^hat we have applied we have little doubt that It will stand the ordeal satisfac- torily. "—Athenaeum. " The volume by Mr. Octavius Crump on the Principles of the Law of Marine Insurance and General Average at- tempts what, we believe, has never he- fore been attempted in legal literature — namely, under an alphabetical classi- fication of subjects, to state principles without argument in such a manner as to dispense with the necessity for an index. The experiment is one which, if successful, seems to point the, way to codification. This mode of treatment makes it easy for any one to follow the law from the beginning to the end of a marine risk." — Times, a- ©- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 9 BAMEIi'S CUSTOMS I.A\7S. THE LAWS OF THE CUSTOMS, 1876, consolidated by direction of the Lords Commissioners of her Majesty's Trea- sury. With practical Notes and References throughout; an Appendix containing various Statutory Provisions incidental to the Customs ; tlie Customs Tai-jff Act, 1876, and a Copious Index. By Felix John Hamel, Esq., Solicitor for her Majesty's Customs. Post 8vo., 6s. cloth. Demy 8vo., 8s. 6A " Mr. Hamelt solicitor for her Ma- unique facilities, and which ought to he jesty's customs, has produced a very in the hands of all who have an interest useful 'pocket volume' edition of the in our maritime commerce." Law Customs Laws and Tariff Act, 1876, for ilaganne, February, 1877. which his official position affords him SHi:i.FORD'S JOINT STOCK COMPANIES.— Second Edition by FITCAIRN and IiATHAM. SHELFORD'S LAW of JOINT STOCK COMPANIES, containing a Digest of the Case Law on that subject ; the Companies Acts, 1862, 1867, and other Acts relating to Joint Stock Companies; the Orders made under those Acts to regulate Proceedings in the Court of Chancery and County Courts ; and Notes of all Cases inter- preting the above Acts and Orders. Second Edition, much enlarged, and bringing the Statutes and Cases down to the date of publication. By David Pitcairn, M.A., Fellow of Magdalen College, Oxford, and of Lincoln's Inn, Barrister at Law, and Francis Law Latham, B.A. OxoD, of the Inner Temple, Barrister at Law, Author of " A Treatise on the Law of Window Lights." 8vo. 21s. cloth. " We may at once state that, in our intelligent adherence to his proposed opinion, the merits of the work are very order and method. All decisions are great, and we confidently expect that it noted and epitomised in their proper will be, at least for the present, the places, the practice-decisions in the notes standard manual of joint stock company to Acts and Rules, and tbe remainder in law. That great learning and research the introductory account or digest. In have been expended by»Mr. Pitcairn no the digest Mr. Pitcairn goes into every- one can doubt who reads only a few thing with original research, and nothing pages of the book; tlie result of each seems to escape him. It is enough for us case which has any bearing upon the sub- that Mr. Pitcairn's performance is able ject under discussion is very lucidly and and exhaustive. iNothiogis omitted, and accurately staled. We heartily con- everything is noted at the proper place, gratulate him on the appearance of this In conclusion, we have great pleasure work, for which we anticipate a great in recommending this edition to tlie success. There is hardly any portion of practitioner. Whoever possesses it, and die law at the present day so important keeps it noted up, will be armed on all as that which relates to joint stock com- parts and points of the law of joint-stock panics, and tliatthis work will be the stand- companies " — SoUeitort^ Journal, ard authority on the subject we have not " Although nominally a second edition the shadow of a doubt-"— Xoo Journal, of Mr. Shelford's treatise it is in reality "After a careful examination of this au original work ; the form and arran^e- work we are bound to say that we know ment adopted by Mr. Shelford huve of no otlier which surpasses it in two been changed, and, we think, improved, all-important attributes of a lawbook: by Mr. Pitcairn. A full and accurate first, a clear conception on the part index also adds to the vslueof the work, of the author of what he intends to do the merits of which we can have no doubt and how lie intends to treat his subject ; will be fully recognized by the profes- and secondly, a consistent, laborious and sion." — iaw Magasini. 0- 10 LAW WORKS PUBLISHED BY DAVIS'S COUNTY COURT RULES AND ACTS OP 1875 and 1876. THE COUNTY COURT RULES, 1875 and 1876, with Forms and Scales of Costs and Fees; together with the County Courts Act, 1875, and other recent Statutes affecting the Juris- diction of the County Courts. Forming a SUPPLEMENT to the Fifth Edition of the COUNTY COURT PRACTICE and EVIDENCE, but entirely complete in itself. By James Edward Davis, of the Middle Temple, Esq., Barrister at Law. In 1 vol. 8vo., 16s. cloth. "Such disadvantages as are inherent relating to County Courts. The book to a Supplement he has reduced to a opens with the act of last session, shortly minimum by numerous references and annotated ; then follow the portions of a full index to the whole work. Some other acts passed last session which re- notion can be gained of the extent of the late to County Courts; and, after these, new matter with which Mr. Davis had the Consolidated Uules Issued last year, to deal from the fact that the volume and the new Rules which came in force before us contains, exclusively of the on Monday last. A very full index is index, 326 pages of matter. The volume added, containing references, not only is in a neat and handy form and well to the present voluirie, but also to th6 adapted for general use." — LomJowrnal. work to which it is intended as a supple- " We will merely content ourselves menV— Solicitors' Jovmal. with pointing out that the additions and "The number of statutes affecting ehanges.as regards County Court Juris- County Courts passed in 1874—75 is diction nave been very great and im- certainly formidable, and required to be portant, and that this volume indicates brought at once to thfe notice of practi- them in a well-arranged and convenient tioners. This Mr, Davis does in a form forpi. Its issue has been wisely delayed, which has thoroughly recommended BO as to include the Rules of 1876." — itself to the profession. The volumi- Law Magazine. nous index will form an excellent guide '* W.e have here in good type and con- to the legislation as well as to the rules veniently arranged all the new legislEU and orders." — Law Times. tion, whether parliamentary or judicial, — ♦— DAVIS'S COUNTY COURTS PRACTICE AND EVIDENCE. —Fifth Edition. THE PRACTICE AND EVIDENCE EST ACTIONS IN THE COUNTY COURTS. By James Edward Davis, of the Middle Temple, Esq., Barrister-at-Law, Fifth Edition. 8vo. 385. cloth ; 43s. calf. *** This is the only work on the County (hurts which gives Forms of Plaints and treats fully of the Law and Evidence im, Actions and other Proceedings in these Courts. " We believe Mr. Davis's is the best " It is hardly necessary for us to sum and newest work on County Court Prac- upi in favour of a book which is so tice."— Zaw Times. popular that the several editions of it " Mr. Davis's works are all con- pass rapidly out of print. All we need spicubus for clearness and accuracy. say is, that the verdict of the purchasing The present edition will fully sustain public has our entire approbation." the well-earned reputation of the work." Law Jowmal. —Solicitors' Journal. DAVIS'S EQUITY AND BANKRUPTCY IN THE COUNTY COURTS, The JURISDICTION and PRACTICE of the COUNTY COURTS in Equity (including Friendly Societies), Admiralty,Probate of Wills, Administration, and in Bankruptcy. By J, E. Davis, of the Middle Temple, Esq., Barrister-at-Law. 1 vol. 8vo. 18*. cloth • 22s. calf. *^* T/iis work, although issued separately, forms a Supplementary, or Second. Volume to Davis^s County Courts Practice and Evidence in AcHons. »- IB- MESSRS. BUTTERWOUTH, 7 FLEET STREET, E.C. 1 I MOZLEY & WHITELEY'S CONCISE LAW DICTIONARY. A CONCISE LAW DICTIONARY, containing short and simple definitions of the Terms used in the Law. By Herbert Newman Mozley, M.A., Fellow of King's College, Cambridge, and of Lincoln's Inn, Esq., and George Crispe Whiteley, M.A., Cantab, of the Middle Temple, Esq., Barristers- at-Law. In 1 vol. 8vo., 20s. cloth ; 25s. brown calf. "Messrs. Mozley and "Whiteley, by the wording of their title page, seem to have set brevity before them as the special feature of their work, which is comprised within little more than five hundred pages. As a handy hook for the desk, and as combining general accuracy with brevity, we have no doubt that Messrs. Mozley and Whiteley's Con- cise Law Dictionaiy will/ meet with a large amount of favour." — Iaiw Maga- "This book is a great deal more modest in its views than the law dic- tionary we jeviewed a little while ago. Its main object is to explain briefly legal terms, both ancient and modern. In many cases, however, the authors have added a concise statement of the law. But, as the work is intended both for lawyers and the- public at large, it ■ does not profess to give more than an outline of the doctrines referred to under the several headings. Having regard to this design, we think the work is well and carefully edited. It is exceedingly complete, not only giving terse explana- tions of legal phr£^es, but also notices of leading cases and short biographies of legal luminaries. We may add that a very convenient table of reports is 5iTen, showing the abbreviations, the date, and the court, and that the book is very well printed."— 5biicitor«V(>wrnaZ. " This book contains a large mass of information more or less useful. A considetable amount both of labour and learning has evidently been expended upon it, and to the general public it may be recommended as a reliable and use- ful guide. Law students desirous of cramming will also find it acceptable." — Law Times. *' Mr. Wharton's work, although it is brought down to a very recent period, is nevertheless so bulky and so costly that a more concise and cheaper publication might well find favour in the eyes of the public. The authors of the above work do not profess to address themselves solely to the members of the legal pro- fession, their object has been to produce a book which shall also be useful to the general public by giving clear yet con- cise explanations of the legal terms and phrases in past and present use, and we think they have satisfactorily performed their task." — Justice of tlie JPeace. " It should contain everything of value to be found in the other larger works, and it shouli^ be useful not merely to the legal profession, but also to the general public. Now, the work of Messrs. Mozley and Whiteley appears to fulfil those very condition^ ; and, while it assists the lawyer, will be no less useful to his client. On the whole, we repeat that the work is a praise- worthy performance which deserves a place in the libraries both of the legal profession and of the general public." — Irisli Law Times. " The * Concise Law Dictionary,* by Mr. H. Mozley and Mr. G. Whiteley, is not only concise but compendious, and is well adapted for those who desire to refresh the memory or obtain a succinct explanation of legal terms without going through a mass of details." — Sa^i/rday Review. *' This work will supply a want felt by many, as well among law students as the general public, of art explanatory index of legal terms and phrases; complete to the present time, and at the same time moderate in bulk. To such, too, it may be recommended for its many concise supplementary expositions of the law bearing upon the subject-matter of many of the titles indexed." — Nonconformist, " Though devoting less space to ex- positions of the law than Wharton and his editors allow, will yet be found use- ful for precise definitions of law terms. In many cases its greater brevity is an advantage, enabling the book to be consulted with moro rapidity and promptitude." — Daily News. "The compilers being scholars and gentlemen, have taken pains and made their book a valuable one, of which we can prophesy new and even improved editions." — Publishers' Ci7'cular. •* An extremely handy book of refer- ence. On the whole succinctness, clear- ness and condensation of matter have been happily studied and effectually secured in the double columns of a smaiL octavo \ol\ime."'^Soo&8eUer. ROBERTS' PRINCIPLES OF EQUITY— Third Edition. THE PRINCIPLES of EQUITY as administered in the SUPREME COURT OF JUDICATURE and other Courts of Equitable Jurisdiction. By Thomas Archibald Roberts, of the Middle Temple, Esq., Barrister at Law. Third Edition. 8vo. 18». cloth. " This work, "by a member of the is more extensive than Mr. Smith's, as Chancery bar, will meet a want which well as more readable. The table of must have been ^^elt by every student statutes is especially valaiable." — Law of equity since the passing of the Examination Jountalt Aprilj 1877. Judicature Acts. Mr. Roberts's work DREVTRY'S FORMS OF CIjAIMS AND DEFENCES. FORMS of CLAIMS and DEFENCES in CASES intended for the CHANCERY DIVISION of the HIGH COURT OP JUSTICE. With Notes, containing an outline of the Law relating to each of the subjects treated of, and an Appendix of Forms of Endorsement on the Writ of Summons. By C. Stewart Drewry, of the Inner Temple, Esq., Barrister at La-w, Author of a Treatise on Injunctions, and of Reports of Cases in Equity, temp. Kindersley, V.-C, and other works. Post 8vo., 9s. cloth. " Mr. Drewry has attempted to supply adopted. ' The forms we have looked at the defect of the Schedule to the Judi- seem to be fairly correct." — Solicitor^ cature Act of 1875, and he has proceeded Journal. in his work in the safest and most satis- "The equity draftsmen of the present factory manner. He has not put forward day, who, however experienced in the a number of imaginary forms of plead- niceties of the past system, cannot but ings, but he has collected from the re- needtheaidof aworkthuscompiled,and, ports pleadings in decided cases, and trusting to its ^idance, behelit in time has moulded these into precedents for and labour saved ; while to the younger similar actions under the Judicature members of the profession especially Act. The forms thus introduced are we cordially recommend the work." — concise, and cannot fail to be very use- Irish Law Tirnes. ful and welcome."— Zaw Magazine. " On the whole we can thoroughly ** Mr. Drewry's plan of taking the recommend it to our readers." — Imw facts for the forms from reported cases Exavdnalion Journal. and adapting them to the new rules of "The work is likely to prove useful pleading, seems the best that can be to the practitioner,"— JiMft'ce(/iA«/'(?ac^. DE COIiYAR'S LAW OF GUARANTEES. A TREATISE on the LAW of GUARANTEES and of PRINCIPAL and SURETY. By Henry A. De Colyar, of the Middle Temple, Barrister at Law. 8vo. 14s. cloth. " Mr. Colyar's work contains internal subject in hand."— /twiwe of the Peace. evidence thathe isquite at home with his ** The volume before us is a very clear subject. Hisbook lias the great merit of and trustworthy statement of the pre- thoroughnesH. Hence its present value, sent bearing and seope of the law on all and hence we venture to predict will be such questions." — SUim^ard, its enduring reputation."— Zaw Times. " The arrangement of the work is " The whole work displays great care good, the subject is treated fully yet in its production; it is clear in its concisely, and an excellent index is statements of the law, and the result of added. The hook will, we think, be the many authorities collected is stated found of use to law students as well with an intelligent appreciation of the as legal practitioners."— il^Affwram. CHUTE'S EQUITY IN RELATION TO COMMON LAW. EQUITY UNDER THE JUDICATURE ACT, or the Relation of Equity to Common Law. By Chaloner William Chute, Barrister at Law; Fellow of Magdalen College, Oxford; Lecturer to the Incorporated Law Society. Post 8vo. ^s. cloth. Mr. Chute has a chance of prolonged existence. His book is not on the Judtca- tttreAct, His niaoner is emiiienily philo- sophical, and proves the capacity of the author for the position of a lecturer, while It is just the kind of teaching by which students are attracted to the light. Stu- dents may here congratulate themselves 00 the possibility of finding, -within the limits of two hundred pages, many of the chief doctrines of Equity, set forth briefly, lucidly and completely."— iajo Journal, "All the more important branches of Equity are fully discussed by Mr. Chute ; and we may add that his style presents a very agreeable contrast to the general style of law books. In conclusion, we would heartily recommend this mosit in- structive and interesting work to the perusal of the student, regretting that the limits of our space confine us to so brief a notice of it." — Law Examination Reporter. "Mr. Chute's Lectures on Equity at- tracted considerable attention when they were delivered before the Incorporated Law Society, and he has done wisely in making them the basis of the present volume, which can scarcely fail to become a standard work on the subject of which it treats."— ^foTMinjf Pose. The book is deserving of praise, both for clearness of exposition and for the in- teresting way in which modern cases are used to illustrate the doctrines expounded. As^ it stands it appears to us to be a useful guide to the leadioq principles of Equity Jurisprudence. The oook is written in easy and familiar language^ and is likely to prove more attractive to the student than many formal tTed.tises,"— Solicitors* Journal. "To the student commencing to study under the new system Mr. Chute's treatise may prove of service. He thinks clearly, writes very well. As a small and meri- torious contribution to the history of juris- prudence it deserves to be welcomed."— Jiazo Times. " The work is conscientiously done, and will be useful to the student at the present moment." — Echo. '* Mr. Chute's book is founded upon lectures delivered by him to the students at the Law Institution. The object of it'' is to point out concisely the principles on which the doctrinesof Equity depend, and to show the relation of equity to the common law, and the work is a useful one for the class of persons to whom the lectures were delivered."— ^rAencum. FAW^CETT'S LAW OF I.ANDI.ORD AND TENANT. A COMPENDIUM of the LAW of LANDLORD and TENANT. By William Mitchell Fawcett, Esq., of Lincoln's Inn, Barrister-at-Law." 7 vol, Svo. 14s. cloth. " This new compendium of the law on a wide and complicated subject, upon which information is constantly required by a vast number of persons, is sure to be in request. It never wanders from the point, and being intended not for students of the law, but for lessors and lessees, and their immediate advisers, wisely avoids historical disquisitions, and uses language as untechnical as the subject admits." — Law Journal. " Mr. Fawcett takes advantage of this characteristic of modern law to impart to his compendium a degree of atUhen- Hcity which greatly enhances its value as a convenient medium of reference, for he has stated the law in the very words of the authorities." — Iaiw Moffozine. "The amount of information com- pressed into the book is very large. The plan of the book is extremely good, and the arrangement adopted has enabled the author to put together in one place the whole law on any particular branch of the subject, and to avoid repetitions. In this respect, though prpbably from its smaller size it must contain less informa- tion than Woodfall, it will be fourfd far more convenient for ordinary use than that tteatise."—Si>Hciiors* Journal. "Above all, it has been his purpose to state the law in the language of the authorities, presenting the principles enunciated in the very words of the judges. Another excellent feature is a concise summary of the effect of each enactment in the marginal notes. It will be seen from this that the book is thoroughly practical; and as such will doubtless find a favorable reception from the profession."— iatc Times, -O FOIiKARD ON SIiANDER AND IiIBEIi^Fourth Edition. THE LAW OF SLANDER AND LIBEL (founded upon Starkie's Treatise), including the Pleading and Evidence, Civil and Crinainal, adapted to the present Procedure; also MALICIOUS PROSECUTIONS and CONTEMPTS of COURT. By H. C. FoLKARD, Barrister at Law. In One thick vol. Roy. 8vo. 45s. cloth. " It is well that such a treatise should haveheen re-edited, and it is well that it should have been edited by so careful and painstakinj;^ a man as Mr. Folkard." — Law Magazine. " The real jnerit of the author of such a work as this, must consist in careful collation and systematic arrangement of decided cases. No one can sa}- that Mr. f olk^d has failed in the full discharge of this onerous duty, and we are sure that he will earn, as he will obtain, the {gratitude of the profession." — Law journal. "We recommend Mr, Folkard's work to the attention of the profession and the public. It is, as now edited, very valuable."— X«aJ Times. " It would be difficult to find anypart of his subject which Mr. Folkard has not fully investigated, and the result is a valuable addition to the lawyer's library, which for many years has been much needed." — Justice of the Peace. ** It has been most laboriously exe- cuted. The profession may, we think, be pretty confident that whatever has been decided upon the Law of Libel will be found here." — SolicUor^ Journal, HUNT'S I.AVr OF FBAUDS AND BILLS OF SAIiB. THE LAW relating to FRAUDULENT CONVEY- ANCES under the Statutes of Elizabeth and the Bankrupt Acts; with Remarks on the Law relating to Bills, of Sale. By Arthur Joseph Hunt, of the Inner Temple,^ Esq,,. Barrister at Law, Author of *'A Treatise on the Law relating to Boundaries, Fences and Fore- shores." Post 8vo., 9s. cloth. "Mr. Hunt has brought to hear upon the subject a clearness of statement, an orderliness of arrangement and a subtlety of logical acuteness which carry him far towards a complete sys- tematization of all the cases. Neither has his industry been lacking : the cases that have arisen under "The Bank- ruptcy Act, 1869," and under the Bills of Sale Act, have been carefully and completely noted up and disposed by him in their appropriate places. The index also is both accurate and careful, and secures muchi facility of reference to the various matters which are the subjects of the work."— Zaw Magazine. "Though smaller in size, Mr. Hunt's book deals with fraudulent conveyances under the Bankruptcy Acts, a subject which Mr. May in his work left almost untouched, although his book has the undoubted merit of beipg the first to break fresh ground in treating fraudu- lent conveyances in a separate volume. In reviewing that book last year we took occasion, while praising the in- dustry and care with which it was com- piled, to remark on the obscurity of its style. In this respect its younger rival has considerable advant^e. Mr. Hunt's book is as readable as a treatise on so technical a subject can well be made. Mr. Hunt's arrangement of his materials follows an orderly and intelligible plan. The index is apparently carefully pre- pared, and the table of cases shows that none of the recent cases have been over- looked. Mr. Hunt has produced a reallv useful book unencumbered by useless matter, which deserves great success as a manual of the law of fraudulent dis- positions of property." — Law Journal. " The author has collected with in- dustry and care the authorities bearing on the question he has undertaken to deal with. The matter is conveniently broken up, and the readerls assisted. by a good index."— 5oficrtor«* Journal. -M \ MESSRS. EUTTERWORTH, 7 FLEET STREET, E.C. 15 CODTE'S PROBATE PRACTICE.— Seventh Edition. The COMMON FORM PRACTICE of the HIGH COURT of JUSTICE in gi-anting Probates and Administrations. By Henry Charles Coote, F.S.A., late Proctor in Doctors' Commons, Author of *' The Practice of the Ecclesiastical Courts," &c, &c. Seventh Edition. In 1 vol. 8vo., 25s. cloth ; 29-?. calf. *»* The Forms as printed in this work are in strict accordance with the Onlers of Court and Decisions of Hie Right Hon. Sir James Hannen and are those ichtch are m tise in the Principal Registry of the Probate Divisional Court. " The above is another name forwhat is commonly known to the profession as Coote's Probate Practice, a work about £is indispensable in a solicitor's office as any book of practice that is known to us. The seventh edition is chiefly dis- tinguishable from the sixth edition in. this, that certain important modifica- tions and alterations are eifected which have been rendered necessary by the Judicature Acts. Judicial decisions subsequent to fhelast edition have been carefi^ly noted up. We notice several new and useful forms ; and the author has not only attempted, but has in the main succeeded in adopting the forms and directions under the old Probate practice, as embodied in previous edi- tions of the work, to the new procedure under the Judicature Acts. Solicitors bnow that the difficulties in the way of satisfying the different clerks at Somerset House are frequently great, and there is nothing so likely to tend to simplicity of practice as Mr. Coote's . back." — Law Times. " In less than twenty years the work has reached a seventh edition, andthis new edition finds its raison dlUre in the changes introduced by the Judicature Acts. Mr. Coote has set forth so much of the recent legislation as merged the Court of Probate in the High Court of Justice, and has explained the effects of such legislation as regards the subject matter of his book. He has also amended his forms in obedience to the new law, Theedition, sofaras Common Form Business is concerned, maintains the reputation of the work, and in the present day, when every solicitor con- ducts Probate Business, will doubtless command the same popularity as those editions which have preceded it." — Law Journal. " Nearly five years have elapsed since the publication of the last edition of this hook, which has long held a high reputa- tion among solicitors, but we iind little change in its contents. The Judicature Acts, whith have rendered obsolete so many works of practice, have left this almost untouched. The chief changes in this edition appear to be the altera- tion of the headings of many of the forms ; the insertion of several new cases and of some of the judgments of Dr. Bettesworth ; of the fees to be taken by solicitors and paid to the Court in Common Form Business, as directed by the Rules of 1874; and a considerable increase in the numbem of forms in Non-cootentious Business." — Solicitors' Journal. OHAD"WICK'S PROBATE COURT MANUAL. Corrected to 1876. ^^^ „ EXAMPLES of ADMINISTRATION BONDS for the COURT of PROBATE ; exhibiting the principle of various Grants of Administration, and the correct mode of preparing the Bonds in respect thereof; also Directions for preparing the Oaths; arranged for practical utility. With Extracts from Statutes ; also various Forms of Affirmation prescribed by Acts of Parliament, and a Supplemental Notice, bringing the Work down to 1865. By Samuel Chadwick, of Her Maiesty's Court of Probate. Royal 8vo. Us. cloth. ■ ' • •' ' ■ -^ "- on account of the defective filling up or such insiTuments."—Sqliciiors\ Journal. * We undertake to say that the possession of this volume by practitioners will prevent maoy a hitch and awkward delay, pro vok- ■Dg to the lawyer himself and difficait to be satisfactorily explained to the clients. —Laze Magazine and Revief. "The work is principally. designed .to save the profession the necessity of obtam- ing at the registries information as to the preparing or filling up of bonds, and topre- vent grants of administration and adminis- tration with the will annexed bemg-delayed Mr, Chadwick'svolumewill be aneces- sary part of the law library of the practi- tioner, for he has collected precedents that arein constant reauirement. Thisispurcly a book of practice, but therefore the more valuable. It tells the reader what to do. and that is the information most required after a lawyer begins to practise.'*— £ aw Timet. .0 16 T^AW WORKS PUBLISHED BY TROWER'S FREVAZiENCE OF EQUITY. A MANUAL of tlie PREVALENCE of EQUITY, under Section 25 of the Judicature' Act, 1873, amended by the Judicature Act, 1875. By Charles Francis Trowee, Esq., MA., of the Inner Temple, Barrister at Law, late Fellow of Exeter College, and Vinerian Law Scholar Oxford, Author of " The Law of Debtor and Creditor," " The Law of the Building of Churches and Divisions of Parishes," &c. 8vo. 5«. cloth. " We congratulate Mr. Trower on having produced a concise yet compre- liensive treatise on the Prevalence of Equity under the 25th section of the Judicature Act, which cannot fail to prove of great service alike to the student and to practitioners of the common law branch of the profession, who, uuder the recent legislation, find themselves called upon, probably for the first time, to study and apply in practice the equitable principles which now 'pre- vail,"' — Law Magazine, February, 1877. "The amount of information con- tained in a compressed form within its p^es is very considerable, and on the whole it appears to be accurate. The work has been carefully revised, and is well and clearly printed," — Law Times. "The propositions are fairly worked out and substantiated by references. The author hopes that his pages may be useful to the common law branch of the profession, which now finds itself called upon to apply the principles of equity to practice. Mr. Trower's manual may save them some hunting in text books of equity." — Law Journal. BUND'S AGRICUIiTURAIi HOZtDINGS ACT^ 1875. The LAW of COMPENSATION for UNEXHAUSTED AaRICULTURAL IMPROVEMENTS, as amended by the Agricultm-al Holdings (England) Act, 1875- By J. W. Willis Bund, M.A., of Lincoln s Inn, Barrister-at-Law, Author of " The Law relating to Salmon Fisheries in England and Wales,'' &c. 12mo. 58. cloth. "We think this design has been well accomplished. The provisions of the new law are, on the whole, accurately stated and so clearly explained that the unprofessional reader will find it easy to understand their meaning and effect. In the Appendix he provides a series of useful forms." — Solicitor/ Journal. *' The chapter on the application of the act (Chap. 7) is clearly and concisely written, and the summary at the end of the chapter, setting out the most im- portant points to be attended to by both landlords and tenants, will be found very useful. The book is a good sup- plement to any treatise ou the law of landlord and tenant. The index is ex- haustive, and the collection of forms supplies all that can be required." — Law Magazine. " It will be found very serviceable to all those who have to administer the Agricultui^ Holdings Act o( last ses- sion, and by all practically interested in it, whether as landlords, tenants or valuers." — Daily News. *' A more complete volume never came under our notice."— Worcester Herald. " This isa simple and useful summary of the provisions of the present statutes on this subject, with orders and forms for practical application." — Standard. "It will enable any farmer or land- owner to understand precisely what are the conditions at present existing as to compepsation for improvements by law and by custom of the country." — CAam- ber o/AffricuUure Journal. "He intends it for landowners, far- mers, land stewards and the like. All who have any interest in landed pro- perty may read it to advantage." — Land and Water. "Mr. Willis Bund has compressed into a simple and convenient form the information needful for understanding thebearingofthe Agricultural Holdings Act on the law of compensation for un- exhausted improvements." — Saiitrday Review* ©- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 17 SHEIiFORD'S RAIIiVTAYS.— Fourtb Edition, by Glen, SHELFORD'S LAW of RAILWAYS, containing the whole of the Statute Law for the Regulation of Railways in England, Scotland and Ireland. With Copious Notes of decided Cases upon the Statutes, Introduction to the Law of Railways and Appendix of Official Documents. Fourth Edition, by W. Cunningham Glen, Barrister at Law, Author of the *'Law of Highways," "Law of Public Health and Local Government," &c. 2 vols, royal 8vo. 63s. cloth ; 75s. calf. **Though we have not had the oppor- tunity of going conscientiously through the whole of this elaborate compilation, we have been able to devote enough time to it to be able to speak in the highest terms of the judgnicut and ability with which it has been prepared. Its esecu- tion quite justifies the reputation which Mr. Olea has already acquired as a legal writer, and proves that no one could have been more properly singled out for ihe duty he has so well discharged. The -mork must take its unquestionable jiosition as the leading Manual qf the Raihoay Laia of Great Britain The cases seem to have been examined, and their effect to be stated with much care and accuracy, and no channel from which in- formation could be gained has been neg- lected. Mr. Glen, indeed, seems to be • saturated with knowledge of his subject. . . . The value of the work is greatly in- creased by a number of supplemental de- cisions, which give all ihe cases up to the lime of publication, and by an index which appears to be thoroughly exhaustive."^ Laa Magazine. '* Mr. G lea has done wisely in preserving that reputation, and, as far as possible, the text of ^helford — though very extensive alterations and additions have been re- qnired. But he haS a claim of his own. He is a worthy successor of the original author, and possesses much of the same, industry, skill in arrangement and astute- - ness in enumerating the points really de- cided by cited cases. But we have said enough of a work already so well known." —LoTii Times. "Mr. Glen has modestly founded his work as a superstructure on that of Mr. Leonard iShelford, but he has certainly claims to publish ii as a p'-irely indepen- dent composition. The toil has been as great, and ihe reward ought to be as complete, as if Mr. Glen had disregarded all his predecessors in the productiou of treatises on railway law Since the year 1864 he has been un- ceasiugly engaged in collecting materials, and though he has been ready for the printer for some time, and has delayed the appearance of the volumes in the expecta- tion of legislative changes in railway law, yet he has expended full iivc years of care aad attention on his work. Let us hope that he will have no cause to think his labour has beeu in vain. At any rate we may venture to predict that Mr, Cunjting- ham Gleyi's edition of Shelfard on Itailzoays will be the standard work qf our day in th'ae department oflaw.^^ — Laio Journal. •* Far be it from us to under value Mr. Shelford's labours, or to disparage his merits. But we may nevertheless be per- mitted to observe that ^ohat has hitherto been considered as ' tfie best work on the subject ' (Shelford), has been immeasurably imjiroved by tlie application of Mi". Oleti's diligence and learning. . . . Sumcienc. however, has been done to showthatit is in every respect worthy of the_ reputation which the work has alirfays enjoyed." — Justice of thePeace^ "The practitioner will find here col- lected together all the enactments bearing on every possible subject which may come before him in connection with railways or railway travelling. Whatever ques- tions may arise the lawyer, who has this bonk upon his shelves, may say to him- self, * If there has been any legislation at all connected with this branch of the subject I shall at once find it in Shel- ford ;' and it needs not to be said that on this account the book will be a very ' com- fortable' one to possess. 'J'he collection is equally exhaustive iu the matter of rules, orders, precedents and documents of oflicial a.\Li)ioiity."— Solicitors* Journal. DOTVEIiL'S STAMP DUTIES AND STAMP IiAWS. A HISTORY and iEXPLANATIOISr of the STAMP DUTIES, containing Remarks on the Origin of Stamp Duties, a History of the Duties in this Country from their commencement to the present time. Observations on the past and the present State of the Stamp Laws, an Explanation of the System and the Administration of the Tax, Observations on the Stamp Duties in Foreign Countries and the Stamp Laws at present in force in the United Kingdom ; with Notes, Appendices and a copious Index. By Stephen Dowell, M.A., of Lincoln's Inn, Assistant Solicitor of Inland Revenue. 8vo. 12». 6d. cloth. 18 LAW WORKS PUBLISHED BY GRANT'S BANKERS AND BANKING COMPANIES, \>y R. A. Fisher,— Continned to 1876. GRANT'S TREATISE on the LAW RELATING TO BANKERS AND BANKING COMPANIES. Third Edition. With an Appendix containing the Statutes in Force and Supplement to 1876. By R. A Fisher, Esq., Judge of County Coui-ts. 8vo. 28s. cloth ; 33«. calf. "Eight ye the subject, and he writes clearly and intelligibly. There is a full and carefully prepared Index."— XflW Times. " The method of its arrangement is decidedly original and well calcnlated to meet the object with which the book was written, namely, to assist law students in preparing fur their examinations, as his- tory now very properly forms an impor- tant part in all legal examinations. Mr. Fulton's, for practical information, and for student's purposes, is by far the best Manual of Constitutional History with which we are acq,uainted." — Jrish Law Times, "So far as it goes it isnot without merit. The former part is written with care and c\^2.rnesi"— Solicitors' Journal. " The work before ns is one which has long been wanted, and Mr. Fnlton appears to have taken great pains to make it tho- roughly useful and reliable." — Civil Ser- vice Gazette. **The general reader will be much pleased with the chapters on the privileges of parliament."- &dnrfflrrf. A good reference book, as well as a book that ought to be read in the first in- stance straight through."— JbAn Bull. " The author has spared no pains, and has succeeded in tbe somewhat difficult task of presenting the results of a wide range of reading in a well digested form. Mr. Fulton may be congratulated upon the very successful accomplishment of a by no means easy task : his book supplies a felt want." — Public Opinion. *' Mr. Fulton has compiled a Manual of Constitutional History to aid beginners in their studies: the extracts he has given from bis authorities appear to be well chosen,"— Z)a»/y Neies. " It is useless for an ordinary student simply to read a ponderous work on the Constitution, unless at the same time he is able to assimilate its resblts. Mr. Fulton has recognized this difficulty, and the re- sult is the truly admirable little manual to which we call the attention of oar readers." ^Canadian News* 26 LAW WORKS PUBLISHED BY TUDOR'S LEADING CAS]^S ON REAIi PROPERTY Second Edition. A SELECTION of LEADING CASES on the LAW relating to REAL PROPERTY, CONVEYANCING, and the CONSTRUCTION of WILLS and DEEDS; with Notes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister at Law, Author of "Leading Cases in Equity." Second Edition. One thick vol. Royal 8vo. 42s. cloth ; 48s. calf; " lu this new edition, Mr. Tudor has carefully revised his notes in accordance with subsequent decisions that have modi- fied or extended the law as previously expounded. This and the other volumes of Mr. Tudor are almost a law library in themselves, aud we are satisfied tl)at the student would learn more law from t!:e careful reading of them, than he would acquire from double the time given to the elaborate treatises which learued pro- fessors recommend the student to peruse, with eutire forgetfulness that time and brains are limited, and that to do what they' advise would be the work of a life," —Law Timet, ".This well-tcnown work needs no re- commendation. Justice, however, to Mr. Tudor requires us to say that familiarity with its pages from its first appearance have convinced us of its value, nut 'only as a repertory of cases, but a judicious summary of the law on the subjects it treats of. So far as we can see, the author has brought down the cases to the latest period, and altogether there have been added about 170 pages of notes m the present edition. As a guide to the present law the book will now be of great value to the lawyer, and it will be especially useful to him when away from a large library." — Jurist. " The Secoud Edition is now before us, and we are able to say that the same ex- tensive knowledgeand the same laborious industry as have been exhibited by Mr. ludol: OH former occasions characterize this later production of his legal authoi- slitp: and it is enough hc this moment to reiterate an opinion that Mr. Tudor has well maintained the high legal reputatidu which his standard works have achieved in all countries where the English lan- guage is spoken, and tlie decisions of our Courts are quoted." — Law Magazine and Review. "The work before us comprises a digest of decisions whicli, if not exhaustive of all the principles of our real property code, will atleast, be found to leave no- thing untouched' or unelabQrated under the numerous legal doctrines to which the cases severally relate. To Mi . Tudor's treatment of all these subjects, so com- plicated and so varied, we accord our entire commendation. There are no umis- ftious of any important cases relative to the various branches of the law comprised in the work, nor are there any omissions or defects in his statement of t)ie law itself applicable to the cases discussed by him. \V^e cordially recommend the work to the practitioner and student alike, hut especially to the former." — Solicitors^ Journal and Reporter, WOOI.RYCH ON SEWERS.— Third Edition. A TREATISE on the LAW OF SEWERS, including the Drainage Acts. By Humphry W. Woolrych, Serjeant at Law. Third Edition, with considerable Additions and Alterations. Svo. 125. cloth. 6- " Two editions of it have been speedily exhnusted, and a third called for. The author is an accepted authority on all sub- jects of this class."— ia?* Times. " This is a third and greatly enlarged edition of a book which has already ob- tained an established reputation as the most complete discussion 6f the subject adapted to moderutimes. Since'the treatiseof Mr. SerjeaAXCallis in the early part of thel7ih century, no work filling the same place has been added to the literature of the pn>fes- siou. It is a work of no slight labour to digest and arrange this mass of legislation —this task, however, Mr. Serjeant Wool- rych has undertaken, and an examination of his book will, we think, convince the most exacting that he has fully succeeded. Mo one should attempt to meddle with the Law of Sewers without its help."— &/i- citors' Journal. ® — ^ ^ _ MESSRS. BUTTERWOllTH, 7 FLEET STREET, E.C. 27 CUTI.ER AND GRIFFIN'S INDIAN GRIMINAIa IiA'SV. An ANALYSIS of the INDIAN PENAL CODE, in- cluding the INDIAN PENAL CODE AMENDMENT ACT, 1870. By John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Professor of English Law and Jurisprudence, and Professor of Indian Jurispru- dence at King's College, London, and Edmund Fuller Griffin, B,A., of Lincoln's Inn, Barrister at Law. 8vo. 6s. cloth. " It may be added that the Code is Cutler and Griffin have produced a use- just, at present, out of print, so that the ful little book, and produced it at a time production of an analysis at the present when it will be especially useful." — moment is especially opportune. Messrs. SoUcUois' Journal. GOIiDSMITH'S EQUITY.— Sixth Edition. THE DOCTRINE and PRACTICE of EQUITY: or a concise Outline of Proceedings in the High Court of Chancery, de- signed principally for the Use of Students. Sixth Edition, according to the recent Statutes and Orders. By George Goldsmith, Esq., M.A., Barrister-at-Law, Post 8vo. 18s, cloth. "A well-known law student's hook, who, as a student, avails himself of the the hest, because the most thoroughly primary intention of Mr. Goldsmith's complete,yetsimp]ified,instructorinthe work by finding in it his first equity principles of equity that has ever been reading book or primer^ will afterwards provided for him, and that its value has verify the anticipation of the author by been recognized by those who have made making of it diteetu juvenili or vaiie use of it is proved by this, that their mecum in his later practice." — Law commendations have carried it to a sixth Magazine. edition."— ioio Times. " It is difficult to know which to "The whole work is elaborated by praise most, the excellence and dignity Mr. Goldsmith with evident care and a of the style, or the exhaustiveness of determination to deal with all that can the information furnished to the reader, come within the scope of the title. It 'Mr. Goldsmith's plan corresponds to is characterized by comprehensiveness some extent with that adopted by Mr. and at the same time conciseness, by Haynes in hia excellent 'Outlines of clearness of diction and attractiveness Equity,' but his work is more com- of style and avoidance of technicalities plete than that of Mr. Haynes."— iow -which might prove embarrassing to the Examination Journal. student, and a close adherence to the "If a student were confined to the purpose as expressed in the preface. — selection of one book on equity, both Lam Journal. for its doctrine and practice, he could " Altogether the author's method and hardly do better than choose the one his execution are alike commendable — before us." — Solicitors' Journal. and we are of opinion that the lawyer, KOSEIiY'S ARTICLED CI.ERKS' HANDY BOOK. A PRACTICAL HANDY BOOK of ELEMENTARY LAW designed for the use of ARTICLED CLERKS, with a course of Stud)% and Hints on Reading for the Intermediate and Final Examinations. By M, S. Mosely, Solicitor, Clifford's Inn Prizeman, M.T. 1867. 12mo. 7s. cloth. 28 LAW WORKS PUBLISHED BY CHRISTIE'S CRABB'S CONVEYANCING. — Fifth Edition^ by Shelford. CRABB*S COMPLETE SERIES of PRECEDENTS in CONVEYANCING and of COMMON and COMMERCIAL FORMS in Alphabetical Order, adapted to the Present State of the Law and the Practice of Conveyancing ; with copious Prefaces, Obser- vations and Notes on the several Deeds. By J. T. Christie, Esq., Barrister-at-Law. The Fifth Edition, with numerous Corrections and Additions, by Leonard Shelford, Esq., of the Middle Temple, Barrister-at-Law. Two vols. Royal 8vo. 3/. cloth ; 3L 12s, calf. *#* This wor^, which embraces both the Principles as well as Ote Practice of Conveyancing, contains likewise every description of Form wanted for Commercial Purposes. Genehal Table op Heaps of Prefaces anb Foaus. Abstracts. — Accounts. — Acknowledgments. — Acquittances. — Admit! ances. — Affida- vits, Affiimations oi Declarations. — Agreements : to relinquish Business : to Guarantee : for a Lease : before Marriage : lor a Partition : between Principfd and. Agent : for the Sale and Purchase of Estates : for Sale of Copyhold Estates : for Sale of Leaseholds ' for Sale of an Advowson. — Annuity : secured on Copyholds. — ^Annuities : Assignments of. — Appointments : of Guardians. — Apportionment. — ^Apprenticeship: to the Sea Service : to an Attorney: Assignment of.— Arbi- tration: Award. — Assignments: Bonds; Leases: Patents: Pews: Policies Of Insurance: Reversionary Interests. — Attestations. — Attornments. — Auctions : Particulars of Sale. — Bargains and Sales; of Timber.— Bills of Sale of Goods. — Bonds: Administration: Receiver pending Suit: Post Obit: Stamps on. — Cer- tificates.— Composition : Conveyances in Trust for Creditors.— Conditions : of Sale. — Confirmations. — Consents. — Copartnership : Dissolution of Copartner- ship. — Covenants : Stamps on : for Production of Title Deeds. — Declarations. — Deeds : I. Nature of Deeds in General : II. Requisites of a Deed : Til. Formal parts of Deeds : IV. Where a Deed is necessary or otherwise : V. Construction of Deeds: VI. Avoiding of Deeds : VII. Proof of Deeds : VIII. Admission of Parol Evidence as to Deeds : IX. Possession of Deeds : X. Stamp Duty on Deeds. — Defeasances. — Demises. -r Deputation. — Disclaimers. — Disentailing Deeds. — Distress : Notices of. — Dower. — Enfranchisements. — Exchanges.— Feoffments. — Further Charges.— Gifts. — Grants,— Grants of Way or Road.— Indemnities. — Leases: I. Nature of Leases in General : II. Requisites to a Lease : III. Parts of a Lease: IV. Incidents to a Lease: V. Stamps on Leases. — Letters of Credit. — Licences. — Mortgages: of Copyholds: of Leaseholds: Transfer of: Stamp Duty on. — Notes, Orders, Warrants, &c. — Notices : to Quit. — Partition. — Powers : of Attorney. — Presentation. — Purchase Deeds : Conveyance of Copy- holds : Assignments of Leaseholds : Stamps on. — Recitals. — Releases or Convey- ances : or Discharges.— Renunciations or Disclaimers.- Resignations. — Revoca- tions. — Separation. — 'Settlements : Stamp Duty on. — Shipping : Bills of Lading : Bills of Sale: Bottomry and Respondentia Bonds: Charter Parties. — Surrenders. —Wills: 1. Definition of Will and CodiciU 2. To what Wills the Act 7 Will. 4 & 1 Vict. c. 26 does not apply : 3. What may be disposed of by Will : 4. Of the capacity of Persons to make Wills : 5. Who may or may not be Devisees : G. Exe- cution of Wills ; 7. Publication of Wills : 8. Revocation of Wills : 9. Lapse of Devises and Bequests: 10. Provisions and. Clauses in Wills: 11. Construction of Wills. *' In carefulness we have inbim a second atlon of -it to the notice of those for whose Crabb, in erudition Crsbb's superior j and service it has been so laboriously com- the resalt is a work of which the oriprinal i}i\ed."— Lata Times. author would have been proud, could it " Mr. Shelford' has proved himself in have appeared under his own auspices. It this task to be not unworthy of his former is not a book to be quated, nor indeed renutation. To those familiar with his could its meriis be exhibited by quotation. other works it will be a sufficient recom- It is essentially a book of .p'*actice, which lueodation of this work that Mc. Shelfnrd's can only be described in rode outline and name agipears on the title-page; if there dismissedwith applause»and arccommeod- be any who are not well acquamted with Christie's Crabb's Conveyancing— conft /iff i?'^. them, we venture to recommend to snch the work before us. as the most seoeraliy useful and convenient collection of prece- dents in conveyancing, and of comnrerciQi forms for ordinary use, which are to be had in the English language."— 5o/i«Vorf' Journal and Reporter, " To this important pa.rt of his daty— the remodelling and perfecting of the Forms ' — even with the examination which we have already been able to afford this work, we are able to affirm, that the learned editor has been eminently successful and effected valuable improvements." — Xaw Maeasms and Review. "It possesses one distinctive feature in devoting mure attention than usual in such works to forms of a commercial nature. On the whole the two volumes of Crabb's Precedents, as edited by Mr. Leonard Shclford, will be found extremely useful in a solicitor\s ofRce, presenting a large amount of real property learning, with very numerous precedents : indeed we know of no book so justly entitled to the ap- pellation of * handy' as the fifth edition of Mr. Crabb's Precedents."— Xaa'CAroMic/e. CUTIiBR'S LAVr OF NATURAZalZATION. THE LAW of NATURALIZATION as Amended liy the Act of 1870. By John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Editor of "Powell's Law of Evidence," &c. 12mo. 3s. Qd, cloth. able the reader fully to comprehend the presen-l; state of the law upon this most important subject."— ./w.s((ce of the Peace. " The author's position as Professor of English^ Law and Jurisprudence is a guarantee of his Iegalcampetence,-whilst his literary abilities have enabled him to cloihe his legal knowledge in lan- guage which laymen can understand without being misled by it." — John Bull. '* Professor Cutler's book is a useful isummary of the law and of the changes which have been made in it. The act is siven in full withauseful index." — Law Magazine. "Mr. Cutler, in the work before us, iucidly explains the state of the law pre- vious to the recent statute, and shows the alterations produced by it, so that a careful perusal of his book will en- COOTE'S ADMIRAIiTY FRACTICi:.— Second Edition. The PRACTICE of the HIGH COURT of ADMI- RALTY of ENGLAND: also the Practice of the Judicial Committee of Her Majesty's Most Hon. Privy Council in Admiralty Appeals, with Forms and Bills of Costs. By Henry Charles Coote, F.S.A., one of the Examiners of the High Court of Admiralty, Author of "The Practice of the Court of Probate,'' &c. Second Edition, almost entirely re-written ; and with ii SUPPLEMENT containing the County Court Fractice m Admiralty, the Act, Rules, Orders, &c. Svo. 16s. cloth. *** Tills worh contains every Common. Form in me hy the Practitioner in Admiralty^ as well as every description of BUI of Costs in, that Court, a feature 2^ossesscd by no other work on the Practice in Admiralty. " Mr. Coote, beinp an Examiner ot the Court, may be considered as ao authori- tative exponent of the points of which be treats. His treatise is, substantially con- sidered, everyihing that cfl:i be desired to the practitiooer."— Zflw Ma:!azine. b3 30 LAW WORKS PUBLISHED BY ORTOLAN'S ROMAN I^'W, Translated by PRICHARD and NASMITH. The HISTORY of ROMAN LAW, from the Text of Ortolan's Histoire de la Legislation Romaine et Generalisation da Droit (edition of 1870). Translated, with the Author's permission, and Supplemented by a Clironometrical Chart of Roman History. By L T. Prichard, Esq., F.S.S.. and David Nasmith, Esq , LL.D., Banisters at Law. Svo. 28s. cloth. " We know of no work, which, in our to that great work, it is enough to say, opinion, exhibits so perfect a model of that English writers have been coDt what a text-hook ought to be. Of the tinually in the habit of doing piecemeal translation before us, it is enough to say, what Messrs, Prichard and Nasmith that it is a faithful representation of have done wholesale. Hitherto we have the original." — Law Magazine. had hut gold dust from the mine ; now *'Thistranslalion, from its greatmerit, we are fortunate in obtaining a large deserves a warm reception from all who nugget. Mr. Nasmith is already known desire to he acquainted with the history as tlie designer of a chart of the history and elements of Roman law, or have its of England, which has been generally interests as a necessary part of a sound approved, and bids fairly for extensive legal education at heart. With regard adoption." — Law Journal. ADAMS'S IiAW OF TRADE-MARKS. A TREATISE on the LAW OF TRADE-MARKS; ■with the Trade-Marks Regulation Act, 1875, and the Lord Chan- cellor's Rules. By F. M. Adams, of the Middle Temple, Esq., Barrister at Law. Svo. 7.s. &d. cloth. "Acomprehensivetreatiseonthesub- ''Jl^^t^?'^'^^''^"-^"^"''^'^- jectofthelawoftrade^marks Wecan "^hTsS«t of trade-marks is beset "2™".^°l.^:V=*''.r.;..r:i ^.'^" with dlnculties. m the elucidation of j^:;;;^i.?^^S^'iCSr?^ ^c,:5:;sw^-wui^v=i:;^;s Press. facturers and others interested in the CIiIFFORD & STEPHENS' REFEREES' PRACTICE, 1873. THE PRACTICE of the COURT of REFEREES on PRIVATE BILLS in PARLIAMENT; with Reports of Cases as to the Locus Standi of Petitioners decided during the Sessions 1867-72. By Frederick Clifford, of the Middle Temple, and Pembroke S. Stephens, of Lincoln's Inn, Esquires, Barristers at Law. 2 Vols. Royal Svo. 3f. 10s. cloth. Jnst published, royal 8vo., Vol.1. Part I., price 31». 6d,.% and Vol. I. Part IL, 15«. cloth. In continuation of the above. CASES DECIDED DURING THE SESSIONS 1873, 1874, 1875 and 1876, by the COURT OF REFEREES on PRIVATE BILLS in PARLIAMENT. By Frederick Clifford and A. G-. Rickards, Esqs., Barristers at Law. "These Reports are a continuance "The book is really a very useful of the series of ' Clifford and Stephens' one, and will doubtless commend itself Reports,* which began in 1867, and seem to Parliamentary practitioners."— Zaw to be marked by the same care and Times. accuracy which have made these Re- "The Reports themselves are very ports a standard for reference and well done. To parliamentary practi- quotation by practitioners and the Court tioners the work cannot fail to be of itself."— JVjne*. very great value."- 5o;ic«OTV Journal, ©" MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 31 UNDERHIIiIi'S IiAW OF TORTS. A SUMMARY OF THE LAW OF TORTS, OR WRONGS INDEPENDENT OF CONTRACT. By Arthur ITnderhill, BA., of Lincoln's Inn, Esq., Barrister at Law, Post 8vo. 6s. cloth. " He has set forth the elements of the law with clearness and accuracy. 'J hu liulework of Mr. t'nilerhill is inexpensive and may be relied on."— Zaw Times. " The plan is a good one and hasbeen honestly carried out, and a good index facilitates reference to the contenls of the book/*— Juj/ice ner," — Lata Times, ants he gives to the profession a pithy Feb. 10, 1877, ROGERS'S JUDICATURE ACTS, 1873 and 1875. The LAW and PRACTICE of the SUPREME COURT of JUDICATUEE. By Aetjndel Eogeks, Esq., of the' Inner Temple, Barrister at Law, Author of " The Law of Mines, Minerals, and Quarries." 1 vol., demy 8vo. 21s. cloth. DAVIS'S LAW OP REGISTRATION AND ELECTIONS. A MANUAL of the LAW of REGISTRATION and ELECTIONS : with a SUPPLEMENT comprising the Cases on Ap- peal, 1 868-1869 ; the Rules and Cases relating to Election Petitions ; the Poor Rate Assessment Act, 1869 ; and a complete Index to the whole Work. By James Edward Davis, Esq., Barrister at Law. 12mo. 15s. cloth, *,* The SUPPLEMENT may be had separately, price 3*. sewed. 0- 36 LAW WORKS PUBLISHED BY BARRV'S PRACTICE OF CONVEVANCING. A TREATISE on the PRACTICE of CONVEY- ANCING. By W. Whittaker Barry, Esq., of Lincoln's Inn, Bar- riSter-at-Law, fate holder of the Studentship of the Inns of Court, and Author of " The Statutory J urisdiction of the Court of Chancery." 8vo. 18». cloth. " Tliis treatise supplies a want wliich his criticism will meet witli general ap- Jins long been felt. Mr. Barry's work is proval." — Law Magazine. essentially what it professes to be, a. " Readers who recal the instruction treatise on the practice of conveyancing, they gathered from this treatise when in which the theoretical rules of real published week by week in the pages of property law are referred to only for tlie the * Law Times' will be pleased to learn purpose of elucidating the practice. The that it has been re-produced in a hand- treatise is the production of a person of some volume, which will be a welcome great merit and still greater promise." addition to the law library. The informa- — So/icitort* Journai, tion that the treatise so much admired We feel bound to strongly recom- may now be had in the more convenient mend it to the pcBctitioner as well as the form of a book will suffice of itself to student. The author has proved himself secure a large and eager demand for it." to be a master of the subject, for he not — Law Timet, onlygivesamostvaluablesupply of prac- "The work is clearly and agreeably tical suggestions, but criticises them with written, aud ably elucidates the subject much ability, and we have no doubt that in hand." — Juetice of the Peace, BARRY'S FORMS IN CONVEYANCING. FORMS and PRECEDENTS in CONVEYANCING ; ■with Introduction and Practical Notes. By W. Whittaker Barky, of Lincoln's Inn, Barrister-at-Law, Author of a " Treatise on the Practice of Conveyancing." 8vo. 2l8. cloth. HERTSIiET'S TREATIES. HERTSLET-S TREATIES of Commerce, Navigation, Slave Trade, Post Office Communications, Copyright, &c , at present subsisting between Great Britain and Foreign Powers, Compiled from Authentic Documents by Edward Hertslet, Esq., C.B., Librarian and Keeper of the Papers of the Foreign Office. 12 vols. 8vo. 142. bs. »»• Vol. 1, price 12s.; Vol. 2, price lis.; Vol. 3, price 18». ; Vol. A, price 18». ; Vol. 5, price 20». ; Vol. 6, price 25*. ; Vol. 7, price 30*.; Vol. 8, price 30«. ; Vol. 9, price 30*. ; Vol. 10, price 30«.; Vol. 11, price 30s.; Vol. 12, price 40*., may be had separately to complete sets. Vol. 12 incluiles an Index of Subjects to the Twelve published Volumes, which Index is also sold separately, price 10*. cloth. HERTSIiET'S TREATIES ON TRADE AND TARIFFS. TREATIES AND TARIFFS regulating the Trade between Great Britain and Foreign Nations, and extracts of the Treaties between Foreign Powers, containing "Most Favoured Nation" Clauses applicable to Great Britain in force on the 1st January, 1875. By Edward Hertslet, Esq., C.B., Librarian and Keeper of the Papers, Foreign Office. Part I. (Austria). Koyal 8vo. 7». 6rf. cloth. Part II. (Turkey), lbs. cloth. Part III. (Italy), lbs. cloth. MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 31 HXGGINS'S DIGUST OF PATENT CASSS. A DIGEST OF THE REPORTED CASES relating to the Law and Practice of LETTERS PATENT for INVEN- TIONS, decided from the passing of the Statute of Monopolies to the present time. By Clement Higgins, M.A., P.C.S., of thp Inner Temple, Barrister at Law. 8vo. 21s. cloth; 25s. calf.. "Mr. Hiijgins's -work -will be useful as a work of reference. Upwards of 700 cases are digested : and, besides a table of contents, there is a full index to the subject matter; and that index,«^hich greatly enhances the value of the book, must have cost the author much time, labour and thought." — Law Journal. " ' This is essentially,' says Mr. Hig- gins in his preface, * &book of reference.' It remains to be added whether the compilation is reliable and exhaustive. It is only fair to say that we think it is ; and we will add, that the arrangement of subject matter (chronological under each heading, the date, and double or even treble references being appended to every decision), and the neat and care- fully executed index (whichis decidedly above the average) are such as no reader of ' essentially a book of reference ' could quarrel with." — Solicitors' Journal. " Mr. Higgins has, with wonderful and accurate research, produced a work which is much needed, since we have no collection of patent cases which does not tenninate years ago. The work is well arranged, and gives brief, thoiigh com- prehenaite, statements of the various cases decided." — Sdentific and Literary Review. •' The very elaborate Digest just com- pleted by Mr. Higgins is worthy of being reco^mized by the profession as a tho- roughly useful book of reference upon the subject. Mr. Higglns's object IjaH been to supply a reliable and exhaustive summary of the reported patent cases decided in English courts of law and equity, and this object he appears to have attained." — Mining Joiimal. " We consider that Mr, Higgins, in the productioa of this work, has met a long felt demand. Not merely the legal profession and patent agents, but "pa- tentees, actual or intending inventors, manufacturers and their scientific ad- visers, williindthe Digest an invaluable book of reference." — Chemical News. '* The arrangement and condensation of the main principles and facts of the cases here digested render the work in- valuable in the way of reference." — Standard. '* The work constitutes a step in the right direction, and is likely to prove of much service as a guide, a by no means immaterial point in its favour being that it includes a number of comparaiively recent cases." — Engineer. " In iine, we must pronounce the book as invaluable to all whom \% may concern." — Quarterly Journal of Science. " On the whole, Mr. Higgia's wqrk has been well accomplished. It has ably fulfilled its object, by supplying a reliable and authentic summary of the reported Patent Law Cases decided in English Courts of Law and Equity." — Irish Law Times. SMITH'S PRACTICE OF CONVEYANCING. An ELEMENTARY VIEW of the'PRACTICE of CON- VEYANCING in SOLICITORS' OFFICES, with an Outline of the Proceedings under the Transfer of Land and Declaration of Title Acts, 1862, for the use of Articled Clerks. By Edmund Smith, B.A., lato of Pembrote Coll. Cambridge, Attorney and Solicitor. Post 8vo. 6s, cloth. 38 LAW WORKS PUBLISHED BY INGRAM'S IiAW OF COMPENSATION Second Edition. COMPENSATION TO LAND AND HOUSE OWNERS : being a Treatise on the Law of the Compensation for In- terests in Lands, &c. payable by Railway and other Public Companies; with an Appendix of Forms and Statutes. By Thomas Ddhbab Ingram, of Lincoln's Inn, Esq., Barrister at Law, now Professor of Jurisprudence and Indian Law in the Presidency College, Calcutta. Second Edition. By J . J. Elmes, of the Inner Temple, Esq., Barrister- at-Law. Post 8vo. 12s. cloth. ** whether for compaoies taking land or couclasive manner that Mr. Ingram ha» holding it, Mr. Ingram's volume will he a rightly measured the requirements of the welcome ^nide. with this in his hand the profession when he designed the monograph legal adviser of a company, or of an owner before us. llie appendix contains no less and occupier whose property is taken, and than sixty forms rfqnired in the practice of who demands compensation for it. cannot this branch of the law and the statutes and fail to perform his duty rightly." — Law partsofstatatesinwhichitisembodied. The TimeM. index is very ample. Thus it will be seen * This work apjiears to be carefully tve- to be a book very valuable to all solicitors pared as regards its matter. This edition who may be concerned for railways or for is a third larger than the first ; it contains the persons whose properties are affected twice as many cases, and an enlarged by them." — Lam Timet, teeandtwliee, index._ It was much called for and doubt* " His explanations are dearand accurate, less will be found very useful by the prac- and he constantly endeavours not only to titioner." — Laa Magazine. state the effect of the law which he is " The appearance upon the title page of enunciating, but also to show the principle Che words Second Edition attests in the most upon which it rests," — At&e7iaian\ SCRIVEN ON COPVHOI.DS.— Fifth Edition by Stalman. A TREATISE ON COPYHOLD, CUSTOMARY FREEHOLD, and ANCIENT DEMESNE TENURE, with the Jurisdiction of Courts Baron and Courts Leet, By John Scriven, Serjeant at Law. The Fifth Edition, containing references to Cases and Acts of Parliament to the present time. By Henry Stalman, Esq., of the Inner Temole, Bartister-at-Law. Abridged in 1 voL royal 8vo. 30s. cloth; 36». calf. TUDOR'S CHARITABLE TRUSTS.— Second Edition. THE LAW of CHARITABLE TRUSTS; with the Statutes, including those to 1869, the Orders, Regulations and Instruc- tions issued pursuant thereto, and a Selection of Schentes, with Notes. By Owen Davies Todob, Esq., of the Middle Temple, Banister-at- Law, Author of ' Leading Cases in Equity.' Second Edition, contain- ing all the recent Statutes and Decisions. Post 8vo. 18s. cloth. " No living writer is more capable than Themaia featureof thework isthemanner Mr, Tudor of producing such a work : his in which Mr. Tudor has dealt with all the I,eadiog Cases in Equity, and also on the recent statutes relating to this subsect." — Law of Heal Property, have deservedly Solicitor^ Journal. earned for him the highest reputation as a " Mr. Tudor's excellent little book on learned, careful and judicious text-writer. Charitable Trust* "— Zaa' Timet. MESSRS. BUTTERWORTH, 7 FLEET STREET, E.G. 39 GLEN'S LOCAIi BOAKD EIiECTION MANUAI.. The CONSTITUTION of LOCAL GOVEENMENT DISTEICTS and ELECTION of LOCAL BOARDS under the Public Health Act, 1875 (38 & 39 Vict. c. 55). By Alexander Glen, MA., LL.B., Cantab, of the Middle Temple, Barrister at Law. Post 8vo. 3s. 6cZ. cloth. SHEIiFORB'S SUCCESSION, PROBATE and LEGACY DUTIES.— Second Edition. THE LAW relating to the PROBATE, LEGACY and SUCCESSION DUTIES in ENGLAND, IRELAND and SCOT- LAND, including all the Statutes and the Decisions on tbose Sub- jects : with Forms and Official Regulations, By Leonakd Shelford, Esq., of the Middle Temple, Barrister at Law. The Second Edition, widi many Alterations and Additions. 12mo. 16!;. cloth. " The treatise before ns. one of the most been already tested by most of them.** — useful and popnlar of his prodnctious, Lata Timet, beiniT now tne text book on the subject, '* Mr. bhelford's book appears to hs to nothing remains but to make known its ap- be the best and mostcomplete work on this pearance to our readers. Its merits have extremely intricate subject." — La:c Maga- zine, DAVIS'S CRIMINAI. laAVT CONSOIiIDATION ACTS. THE CRIMINAL LAW CONSOLIDATION ACTS, 1861 ; with an Introduction and practical Notes, illustrated by a copious reference to Cases decided by the Court of Criminal Appea}. Together with alphabetical Tables of Offences, as well those punish- able upon Summary Conviction as upon Indictment, and including the Offences under the New Bankruptcy Act, so arranged as to present at one view the particular Offence, the Old or New Statute upon which it is founded, and the Limits of Punishment; and a full Index. By James Edward Davis, Esq., Barrister-at-Law. 12mo. lOj. cloth. GAIUS' ROMAN LAW.— By Tomkins and Lemon. (Dedicated bn permission to Lord Chancellor Eatherley.) THE COMMENTARIES of GAIUS on the ROMAN LAW: with an English Translation and Annotations. By Frederick J. ToMKiNSj Esq., M.A., D.C.L., and Wjlliam George Lemon, Esq., LL.B., Barristers-at-Law, of Lincoln's Inn. 8vo. 27«. extra cloth, "We feel bound to speak in the highest the thanks of those who take an interest termsofthe manner in which JUr. Tomkins in legal literature.**-&/Kiwr» Journal. ahdMr. Limon have executed their task, '* The translation is carefully executed We nnhesitatiDgly recommend its careful and the mnotations show extensive know- mnwal to Si studenwof Koman Law.'*— ledge of the Roman Jj>vi ,"--Alhenmtm. Kmi™J/m ^x""". .."onj of ,^, „o„ valuable contributions •' The iulhors have done a good service from an English source to onr legal to the stGdy of lloman Law, and deserve lileralnre which the last half-centurV Kas ' " ' "' * " witnessed,'*— £i(in*»rj'/i Mvenme Cmrauc. 02 -O 40 LAW WORKS PUBLISHED BY S&ABORNE'S IiAW OF VENDORS & PURCHASERS. A CONCISE MANUAL of the LAW of VENDORS AND PURCHASERS OP REAL PROPERTY ; with a Sup- plement, including the Vendor and Purchaser Act, 1874, with Notes. By Henry Seaborne. Post 8vo. 9». cloth. *#* 77m5 iBork is designed iofumith Prtuiiivojiers with an easy means of reference io - ilte Stalulonj Enactments and Judicial Decisions regulating the Transfer of Real Priyperty^ and also to bring these authorities in a compendious sJiape uJlder the attention of students^ " The book before us contains a good the most important branches of the deal, especially of practical information law. The student will find this book a as to the course of conveyancing matters useful introduction to a dry and difficult in solicitors' oflices, which may be use- subject."— Zaw Examination Journal. ful to students." — Solicitor^ Journal, " Intended to furnish a ready means " We will do Mr. Seaborne the justice of access to the enactments and deci- to say that we believe his work will be sions governing that branch of the law." of some use to articled and other clerks — The Times, in solicitors' offices, who have not the ** The book will be found of use to the opportunity or inclination to refer to the legal practitioner, inasmuch as it will, standard works from which his is com- so far as regards established points of piled." — Lata Journal, ^ law, be a handier work of reference than " The value of Mr, Seahome's book the longer treatises we have named." — consists in its being the most concise Athenceum, summary ever yet published of one of TOMKINS' INSTITUTES OF ROMAN IiAW. THE INSTITUTES of ROMAN LAW. Part I., con- taining the Sources of the Roman Law and its External History till the Decline of the Eastern and Western Empires. By Fredbkick ToMKiNS, M.A., D.C.L., Barrister at Law, of Lincoln's Inn. Royal Svo. 12s. cloth. (To be completed in Three Parts.) SREIVRV'S EQUITY PLEADER. A CONCISE TREATISE on the Principles of EQUITY PLEADING, with Precedents. By C. Stewart Drewrt, Esq., of the Inner Temple, Barrister at Law. 12mo., 6s. boards. BAYIiIS'S IiAW OF DOMESTIC SERVANTS, by Honckton. Fonrth Edition. THE RIGHTS, DUTIES AND RELATIONS OF DOMESTIC SERVANTS AND THEIR MASTERS AND MISTRESSES. With a short Account of Servants' Institutions, &c., and their Advantages. By T. Henry Baylis, M.A., Barrister at Law of the Inner Temple. ' Fourth Edition, with Considerable Addi- tions, by Edward P. Moxckton, Esq., B.A., Barrister at Law of the Inner Temple. Foolscap 8to. 2<. cloth. 9- ■ ^ ^ ^ ^ MESSRS. BUTTERWORTIIj 7 FLEET STREET, E.C. 41 i-IEIiD'S SEGUIiATIONS OF THE BENGAI. CODE. THE REGULATIONS OF THE BENGAL CODE, • Edited, with Chronological Tables of Repeal and Amendment, and an Introduction, By C. D. Field, ot the Innei' Temple, Barrister at La-w, and of H.M.'s Bengal Civil Service. 1 vol. Koyal 8vo. 42s. cloth. FIEIiD'S TABI.E OF, and INDEX TO, INDIAN STATUTES. CHRONOLOGICAL TABLE OF, and INDEX TO, THE INDIAN STATUTE BOOK fiom the Year 1834; with a General Introduction to the Statute Law of India. With Supplement continuing the Work to August, 1872. By C. D. Field, M.A., LL.D., of the Inner Temple, Barrister at Law, and of H.M.'s Bengal Civil Service. Imperial 4to. 42s. cloth. BRANDON'S I.A'W OF FOREIGN ATTACHMENT. A TREATISE upon the CUSTOMARY LAW of FOREIGN ATTACHMENT, and the PRACTICE of the MAYOR'S COURT of the CITY OF LONDON therein. With Forms of Procedure. By Woodthorpe Brandon, Esq., of the Middle Temple, Barrister at Law. 8vo. 14s. cloth. MOSEIiEV ON CONTRABAND OF WAR. WHAT IS CONTRABAND OF WAR AND WHAT IS NOT. A Treatise comprising all the American and English Authorities on the Subject. By Joseph Moseley, Esq., B.C.L., Barrister at Law. Post 8vo. 5s. cloth. SMITH'S BAR EDUCATION. A HISTORY of EDUCATION for the ENGLISH BAR, with SUGGESTIONS as to SUBJECTS and METHODS of STUDY. By Philip Anstie Smith, Esq., M.A., LL.B., Bar- rister at Law. 8vo. 9s. clotli.- 42 LAW WORKS PUBLISHED BY TROVTER'S CHURCH BUII.DING LA'WS, Continued to 1874. THE LAW of the BUILDING of CHURCHES, PARSONAGES, and SCHOOLS, and of the Division of Parishes and Places. By Charles Fuancis Tbower, M.A., of the Inner U'emple, Esq., Barrister at Law, late Fellow of Exeter College, Oxford, and late -Secretary of Presentations to Lord Chancellor Westbury. Post 8vo. 9s. cloth. 37te Supplement may he Imd sepa/rately, price 1«., sewed. *' A good book on this subject is calcu- men are concerned with glebes, endow- lated to be of considerable service both to ments. districtchapelries, parishes, eccle- lawyeis,' clerics and laymen; and on the siastical commissions and such lil;e matters, whole, after taking a survey of the work about which the public and notably the before us. we may pronounce it a useful clerical public seem to know but little, but work. It contains a great mass of infold which,it is needless to sa^ are matters of mation of essential import to those who much importance." — Solicitort' Journal. as parishioners, legal advisers or clergy- HEALES'S HISTORY AND IiA\(r OF PE^VS. THE HISTORY and the LAW of CHURCH SEATS or PEWS. By Alfred Heales, F.S.A., Proctor in Doctors' Commons. 2 vols. 8vo. 16s. cloth. " Altogether we can commend Mr. dence of the author's industry, talent Heales's book as a well conceived and learning." — Law Journal, and well executed work, which is evi- BRABROOK'S VTORK ON CO-OFERATION. THE LAW and PRACTICE of CO-OPERATIVE or INDUSTRIAL and PROVIDENT SOCIETIES; including the Winding-up Clauses, to which are added the Law of France on the same subject, and remarks on' Trades Unions. By Edward W. Brabrook, F.S.A., of Lincoln's Inn, Esq., Barrister at Law, As sistant-Registrar of Friendly Societies in England, 6s. cloth. JLXJSHINGTON'S NAVAIi PRIZE IiAW. A MANUAL of NAVAL PRIZE LAW. By Godfrey LusHiNGTON, of the Inner Temple, Esq., Barrister at Law. Royal 8vo. 10s. 6d. cloth. WIIiIiS ON EVIDENCE.— Fourth Edition. AN ESSAY on the PRINCIPLES of CIRCUMSTAN- TIAL EVIDENCE. Illustrated by numerous Cases. By the late William Wills, Esq. Fourth Edition. Edited by his Sou, Alfred Wills, Esq., Barrister at LaW. Sto.'IOs. cloth. O- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 43 ^riGRAM ON TVII.I.S.—Fourtli Edition. An EXAMINATION of the RULES of LAW respecting the Admission of EXTRINSIC EVIDENCE in Aid of the INTER- PRETATION of WILLS. By the Right Hon. Sir James Wigram, Knt. The Fourth Edition prepared for the press, with the sanction of the learned Author, by W. Knox Wiqram, M.A., of Lincohrs Inn, Esq., Barrister at Law. Svo. lis. cloth, «« ^° the celebrated treatise of Sir James Wiqram, the rales of law are slated, dis- cussed and explained in a manner which Has excited the admiration of every judge who has had to consult it"— Lord Kings- £0sni. m a Privy Couneil Judgment, Juip a very satisfactory shape, thanks to tho industry and intelligence displayed in the notes by the present editor."— So/ici(or«* Journal and Reporter, COOMBS' SOIiICITORS' BOOKKEEPING. A MANUAL of SOLICITORS' BOOKKEEPING: comprising practical exemplifications of a co,ncise and simple plan of Double Entry, witli Forms of Account and other books relating to Bills of Costs, Cash, &c., showing their operation, giving directions for keeping, posting and balancing them, and instructions for drawing costs. Adapted for a large or small, sole or partnership business. By W. B. Coombs, Law Accountant and Costs Draftsman. 1 vol, Svo. 10s. 6d, cloth. *** 77ie various Account Books dewribed in the above work, tJie Forms of which are Copyright^ may be had from t/ie PiAlisherSy at the prices stated in the work cU page 274. commencement to their Tiltimate con elusion. The bill book contains pre" cedents of bills of costs illustrating the correspondence between that and the disbursement book, and so with the cash book, ledger, and other books ; every item has its reference and any intricate points have been explained, which are merits which no other work on the subject possesses; indeed so clear do the in- structions appear that a tyro of average skill and abilities with application could under ordinary circumstances open and keep the accounts of a business; and so far as we can judge the author has suc- ceeded in his endeavour to divest solici- tors' bookkeeping of complexity, and to be concise and simple without being inefficient. We cannot dismiss this volume without briefly commenting upon the excellent style in which it is submitted to the profession."— iaw Journal. '• The author of the above, relying on the well-known fact that solicitors do not like intricate bookkeeping, has pre- sented to that branch of the profession a "work invhich the really superfluous has been omitted, and that only -which is necessary and useful in the ordinary routine in an attorney's office has been retained. He has performed his task in a. masterly manner, and in doing so has ^ven the why and the wherefore of the whole system of Solicitors' Bookkeeping. The volume is the most comprehensive we remember to have seen on the sub- ject, and from the clear and intelligible manner in -which the whole hag been worked out it will render it unexcep- tionable in the hands of the student and the practitioner." — Law Magazine. " Throughout the pro formd account books most of the different matters of business which usually arise in a solici- tor's office have been passed from their 44 LAW WORKS PUBLISHED BY LAWKENCE'S PARTITION ACTS, 1868 and 1876. THE COMPULSORY SALE OF EEAL ESTATE Under the POWERS of the PARTITION ACTS, 1868 and 187C. By Philip Henry Lawrence, of Lincoln's Inn, Esq., Barrister at Law, Post 8vo., cloth. HUNT'S BOUNDARIES, FENCES AND FORESHORES. Second Edition. A TREATISE on the LAW relating to BOUN- DARIES and FENCES, and to the Rights of Property on the Sea Shore and in the Bed of Public Rivers and other Waters- Second Edition. By Arthur Joseph Hunt, of the Inner Temple, Esq., Barrister at Law. Second Edition. 12mo. l25. cloth. "There are few more fertile sources and commissions of sewers. "—Xaw of litigation than those dealt with in Times. Mr. Hunt's valuable book. It is suffi- " Mr. Hunt chose a good subject for cient here to say that'the volume ought a separate treatise on Boundaries and to have a larger circulallnn than ordi- Fences and Rights to the Seashore, and narily belongs to law books, that it ought we are not surprised to find that a to be found in evjry country gentleman's second edition of his book has been library, that the cases are brought down . called for. The present edition contains to the latest date, and that it is care- much new matter. The chapter espe- fully prepared, clearly \fritten, and well dally which treats on rights of property edited.'' — Law MagazvAe. on the seashore, which has been greatly " it speaks well for this book^ that it extended. Additions have been also has so soon passed intoasecondedition. made to the chapters relating to the That its utility has been appreciated is fencing of the property of mine owners shown by its success. Mr. Hunt has and railway companies. All the cases availed himself of the opportunity of a which have been decided since the work second edition to note up all the cases to first appeared have been introduced in this time, and to extend considerably their proper places, Thus it wiU be some of the chapters, especially that seen this new edition has a considerably which treats of rights of property on the enhanced value." — Solicitors* Journal, seashore and the subjects of sea walls GRANT'S IiAW^ OF CORPORATIONS IN GENERAIi. A PRACTICAL TREATISE on the LAW of COR- PORATIONS in GENERAL, as well Aggregate as Sole; including Municipal Corporations, Railway, Banking, Canal and other Joint- Stock and Trading Bodies, Dean and Chapters, Universities, Colleges, Schools, Hospitals, with quasi Corporations aggregate, as Guardians of the Poor, Churchwardens, Churchwardens and Overseers, &c., and also Corporations sole, as Bishops, Deans, Canons, Archdeacons, Parsons, &c. By James Grant, Esq., of the Middle Temple, Barr rister at Law. Royal 8vo. 26s, boards- O- MESSRS. BUTTER WORTH, 7 FLEET STREET, E.G. 45 BUND'S IiAVr OP SALMON FISHERIES. THE LAW relating to the SALMON FISHERIES of ENGLAND and WALES, as amended by " The Salmon Fishery Act, 1873 ;''■ -witli the Statutes and Cases. By J. W. Willis Bund, MA., LL.B., of Lincoln's Inn, Baii-ister. at Law, Vice-Chairman Severn Fishery Board. Post 8vo. 15s. cloth. From tie TAirteentA Anmtal Rsport of Inductor Bveiland on Salmrni Fisheries, 1874. - r ^?**'? ^'**i i° '*"* place to express my approTal of * bund's Law of Salmon Fisheries >n i^ngland and Wales, with Stattttesand Coses.* This work will afford great assists oce to those engaged id administeriog the law. while it affords valuable information on the theory and practice of Salmon legislation in general." •.^?"' *^* '^Aineenth Animal Report of Inspector Wafpote on Sahnoti Fis/ieries. 1874. iWr. Willis Buad, the Draftsman ot the new Act, has puUJished an iuipoTtanc treatise on the whole of the Salmon Fishery Acts, which has already been accepted as a com- plete exposition of those Statntes.*' " Doubtless all the law will be found between his covers, and we have not been able to detect soy erroneous -statements. 'We can recommend the bviok as a disqui- sition.— it is conscientiously executed." — Itaa Times, •* With Mr. Bund's work at his elbow, the inquirer will find it tolerably easy work , for Mr. Bund has with grent skill and labour done all the most troublesome work for him, and each point of law is marked out so that there can be no difficulty in under- standing it, for not only are the points un- ravelled and discussed, but the cases which have come before the superior courts npon the various points are distinctly set forth. tfud the decision upon each made plain. Mr. Bund has done the work excellently well, and nothing further in this way can be desired."— 3'Aff jFiWrf. " We have always found his opinion sound, end his explanations clear and lucid. This volume must of necessity be- come a handbook to sal mon fishers in gene- ral, and especially to hoards of conserva- tors, who will thereby be much assisted in the formation of the new boards of conser- vators, under the Act of 1873; also the operation of the Acts of 186) and 1865. as amended by the Act of 1873."— Xand and Water, » ROUSE'S COPVHOIiD ENFRANCHISERIENT MANUAI..— Third Edition. The COPYHOLD ENFRANCFilSEMENT MANUAL; enlarged, and treating the subject in the Legal, Practical and Mathe- matical Points of View; giving numerous Forms, Rules, Tables and Instructions for Calculating the Values of the Lord's Rights; Sugges- tions to Lords' Stewards, and Copyholders, protective of their several Interests, and to Valuers in performance of their Duties; and inclu- ding the Act of 1858, and Proceedings in Enfranchisement under it. By RoLL\ Rouse, Esq., of the Middle Temple, Barrister at Law. Third Edition, much enlarged. 12mo. lOi. 6rf. cloth. ' This new edition follows the plan of fessioo, we feel snre the legal world will greet with pleasure a new and improved edition of liis copyhold manual. The third edition of that work is before us. It is a work of great practical value, suitable to lawyers and laymen. "We can freely and heartily recommend this volume to the practitioner, the steward and the copyholder." — Law Magazine. " Now,however,thatcopyliold tenures are being frequently converted into tree- holds, Mr. Rouse's treatise will doubtless be productive of very extensive benefit ; for it seems to us to have been very care- fully prepared, exceedingly well com- posed and written, and to indicate much experience in copyhold law on the part of the author," — Solicitors' Journal, its predecessor, adopting a fivefold divi- sion:— 1. The Law. 2. The Practice, with Practical Suggestions to Lords, Stewards and Copyholders. 3. The Ma< thematical consideration of the Subject In all its Details, with Rules, Tables and Examples. 4. Forms. 5. The Statutes, with Notes. Of these, we can only re- peat what we have said before, that they exhaust the subject; they give to the practitioner all th&materials required by him to conduct the enfranchisement of a copyhold, whether voluntary or com- pulsory." — Law Times, " When we consider what favor Mr. Rouse's Practical Man and Practical Conveyancer have found with the pro- c 5 46 liAW WORKS PUBLISHED BY COIflilER'S IiA^V OF CONTRIBXTTORZES. A TREATISE ON THE LAW OF CONTRIBU- TORIES in the Winding-up of Joint Stock Companies. By Robert Collier, of the Inner Temple, Esq., Barrister at Law, Post 8vo. 9«. cloth. "Mr. ColIier'E general arrangement appears to have been carefully devised, and 18 probably as neat as the nature of the subject admits of. It is impos- sible after a perusal of the book to doubt that the author has honestly studied the subject, and has not contented himself with the practice of piecing together head notes from reports."— fii?Ztcitor«' Jommal. " MrCollier has not shrunk from point- ing out his views as to the reconcilability of apparently conflicting decisions or as to many points on which the law is still unsettled; without making any quota- tions for the purpose of illustrating the above remarks, we think we are justi- fied in commending this treatise to the favourable consideration of the profes- sion." — Iioa Journal. *' Mr. Robert Collier's treatise on the subject deserves attention beyond the limits of his profession. The chapter showing the modes in which liability may be incurred is full of instructive warning." — Saturday Review. " The perplexity of the laws relating to personal liability, naturally suggests a collection of precedents and cases which may be considered settled, and of direct application to the generality of cases; and this the author appears to have done with success, as far as we can judge of the merit of the work." — ^andard. "This is a valuable legal work, which should be in the hands of all speculators in the formation of new ventures in the shape of joint stock companies and associations. It is important that such persons should know the exact position they assume, in a legal point of view, and this they will be enabled to do by a perusal of this work, written by a bar- rister of some repute." — Bullumist. "This work lie has done very tho- roughly, and the scope of the treatise is far wider than the author has laid down in his preface. There is probably no branch of the law of contracts more difficult and intricate than this of con- tribution, and the cases quoted by Mr. Collier are treated with great discrimi- natioUf so that the book enables a man who has not made the subject a matter of special study to advise with compara- tively small trouble to himself. This is the advantage of writers devoting them- selves to what we may call the byeways of the law — a dangerous track for the weakly, the infirm, or the unaccustomed, but light and easy enough with such a guide as Mr. Collier. Laymen may also leam from the work the exact liability which they incur before entering into contracts, and thus avoid the chance of ruin." — Irish Law Times. " The work is clearly and vigorously written, and Mr. Collier has managed to put a great dpal of information into a small space. The book will be found to be a useful addition to the list of treatises on a branch of the law whicU has grown Immensely since 1862." — MT^nosum. "Mr. Collier has carried out his in- tention, and has produced a work of great utility." — The Lam. I BUIiIiEV AND BUND'S NEW BANKRUPTCY MANUAL. A MANUAL of the LAW and PRACTICE of BANK- HUPTCY as Amended and Consolidated by the Statutes of 1869: with an APPENDIX contahiing the Statutes, Orders and Forms. By John F. Bullev, B.A.,and J. W. Willis-Bund, M.A., LL.B,, Barriaters-at-Law. 12mo. 16s. cloth. With a Supplement including the Orders to April, 1870. •»* T/ie Supplement may he had iepa/rately, \&. sewed. •'This is a treatise, not an edition of it. A very complete index makes the the acts, and where the law is to a large work all that the practitioner, be he bar- extent new, this is the best, though the lister or solicitor, can require."— Zov most troublesome, mode of dealing with Times, s- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 47 iWagisterial Wlof^^ fig Mr. a^U (LATE CHIEF CLERK TO THE LORD MAYOR OF LONDON). Oke's Magisterial Synopsis; a Practical Guide for Magistrates, their Clerks, Solicitors, and Constables ; comprising hummaiy Convictions and Indictable Offences, with their Penal- ties, Punishments, Procedure, &c.; alphabetically and talularly arranged: with a Copious Index. Twelfth Edition, much enlarged. By Thomas W. Saunders, Esq., Barrister at Law, Recorder of Bath. In 2 vols. 8vo. 60s. cloth ; 70s. calf. "Twelve editions in twenty- eight years say more for the practical utility of this work than any number of favour- able reviewn. Yet we feel bound to accord to the learned Kecorder of Bath the praise of having fully maintained in the pre- sent edition the well-earned reputation ofthis useful book. The many important statutes passed since the eleventh edi- tion appeared, only four years since, and which either impose new duties upon «r modify the old law administered by Justices of the peace, have been care- fully incorporated in ihe present work. Among these we may notice in the legislation of the last session alone the Acts concerning Cruelty to Animals, Drugging of Animals, Elementary Education, Industrial and Provident Societies, Merchant Shipping, the Poor Xaw, Salmon Fishing and Wild Fowl Protection. A copious index: of over 100 pages offers every facility of re- ference which can be desired, in addition to the alphabetical and tabular arrange- ment of offences with their penalties, punishments, and procedure." — Law Magazine, February, 1877. *'A11 we can do in reviewing a new edition of a work, on the general plan of which the profession has justly con- ferred so distinguished a mark of ap- proval as is involved in a twelfth edition, is to see whether the statutes and cases which have been passed and decided •within the four years which have elapsed since the last edition have been duly in- corporated. They appear, on the points on which we have tested the book, to have been noticed by Mr. Saunders with considet-ahle care. The index has been very greatly improved, and has become a valuable feature of the work."— -SoZiCtr Aw** Journal, Oct. 28, 1876. " The industrious, capable and pains- taking Recorder of Bath (Mr. T. W. Saunders) has edited the twelfth edition of Oke's Magisterial Synopsis. The law administered by magistrates, like almost every other branch of our juris- prudence, goes on growing almost every day of the legal year, and a new edition of such a work as this every few years means no small amount of labour on the part of the editor. The array of statutes which have been passed during the last four years requiring the 'attention of justices is formidable enough,a3 appears by Mr. Saunders's preface. We are glad to see that Mr. Saunders has bestowed great care in the revision of the Index, which is now a feature in the work," — Law Times, Oct. 21, 1876. "The first edition of this work was published in 1848, and contained 410 pages. The twelfth edition has now been published, and contains 1,579 pages. Both of these facts have their moral. The first proves how great a reward waits upon a genuine success in legal literature: the second proves what im- mense labour is cast upon the authpr who endeavours to win the reward. We believe the issue of twelve edi- tions of a large law book within the space of twenty-eight years to be with- out precedent in the history of legal literature, and we are quite sure that the result has in this case not at all exceeded the merit of the work. The new edition now before us has been brought out under the superintendence of Mr. Saun- ders, the Recorder of Buth, whose name is well known in legal literature. Mr. Saunders has for many years mad^many of the subjects which fall within the scope of magisterial jurisdiction his special: study, and we are not at all sur- prised that he should have been selected to carry on the work of Mr, Oke. Ahost of acts have been passed since 1872, and all these have been introduced into the trork, and put in their proper places, so that theycan be found, as wanted, by justices, justices' clerks and solicitors," —Law Journal^ Nov. l%th, 1876. {_Mr. 0M& Works continued over. 48 LAW WORICS PUBLISHED BY Oke's Slagisterial Ponnnlist ; beings a Complete Collec- tion of Forms and Pi-ecedents for practical use in all Cases out of Quarter Sessions, and in Parochial Matters, by Magistrates, their Clerks, "Attornies and Constables. By George C. Oke, Author of *'The Magisterial Synopsis," &c. Fifth Edition^ enlarged and improved. By Thomas W. Saunders, Esq., Barrister at Law, Recorder of Bath. In 1 vol. Svo. 38*. cloth; 43s. calf. "The last edition of this very useful ■work -n-as published in 1868. Since which time, in addition to numerous amend- ing and. consolidating acts bearing upon magistrates' law, other important sta-< tutes have come into effect. New forms, applicable to these and other acts, have been prepared with much care by the learned editor of the present edition (Mr. Saunders), while those which had become inapplicable have been elimi- nated. Sesides the table of contents, a table of statutes, connected with the forms, has been added; a clear, unusu- ally copious index leaves nothing to he de^■ired by those who have to admi- nister the branch of the law to which Oke's Magisterial Formulist delates." — Law Magazine. "Mr. Saunders has not been called upon to perform the functions of an aii- notator merely, he has had to create, jUBt as Mr. Oke created when he wrote his book.' This, of course, has necessi- tated the enlargement and remodelling of the index. No work probably is in more use in the offices of magistrates than ' Oke's Formulist.' That it should be reliable and comprehend recen.t enact- ments is of the very first importance. In selecting Mr. Saunders to follow in the steps of Mr. Oke the publishers exercised wise discretion, and we con- gratulate both author and publishers upon the complete and very excellent manner in which this edition has been prepared and is now presented to the profession." — Law Times. " The duty of edit ing anew the * Magis- terial Formalist' has fallen upon the Kecorder of Bath, whose experience and indu!itry ought to furnish a guar- antee that in his hands a work of so much value and celebrity- will not lose any of its former attributes. Apart from the statutory fcfrras, there is a daily and hourly need of forms pressing upon clerks to justices, and their time is too valuable to admit of the labour of draw- ing what is wanted on an emergency. There is not a member of this most im- -portant and intelligent class of men who has not learned to look upon Ol^e'a * Formalist' as a trusty friend arid safe guide in the moment of need, and who will not welcome an edition which em- braces thenovel matter required by fresh legislation. When we find that 900 pages are occupied with these forms, and that the index alone consists of 100 pages, we can form some idea of the task which Mr. Saunders has undertaken, the per- formance of which ought to add to his repute. Mr. Saunders has compiled a new table of statutes connected with the forms, an addition which will certainly be found useful." — Law Journal. ^ "This well-known work stands no longer in need of any introduction or recommendation; it is not so much the convenience as the necessity of every person who has to conduct or advise the conduct of a magistrate's business. To return, however, to the more proper function of the book before us, the question with any new edition of such a work as the present is, whether it has been so kept abreast with legislative changes as to preserve its character of practical utility. Although all will join with the present editor in lamentiitg that the public can no longer command the services of the accurate and ex- perienced author, yet we see no reason to think that they will suffer through the duty of re-editing this valuable col- lection of forms having devolved upon Mr. Saunders, who seems to have per- formed his task with the care and accu- racy which he has accustomed us to expect from him. His labour has not been a light one, for, as he points out, recent legislation has not only added to the already wide field of magisterial duties, but has also, by the process of consolidation, as well as by consider- able substantive alterations, varied the necessary forms. These changes have been duly followed, and the work, which was last edited in 1868, may now be relied upon as.a safe and complete guide in the matter it relates to."— SoUeiton' Journal, o- MESSRS. BUTTER WORTH, 7 FLEET STREET, E.C. 49 Mx. ©fee's JHaststerial fflHorfes— co«««! Npondence and Notices. No, XXV,— Michaelmas, 187.5. I. statute of Fraudulent Conveyances. 13 EIlz. c. 5. II. Statutes of 1875 : First Notice. UL Di?e>t nf Cases. IV. Intermediate Examination, Trinity Term, 1875: Qnesttons and Answers. V, final Examination, Michaelmas Term, 1B75: Questions and Answers. VI. Reviews of BoAks. VII. Cor- respondence and Notices. No. XXIV.— Trinity, 1875. I, The Statute of Uses, continued. II. Digest of Cases. III. Intermediate Examination, Easter Term, 1675: Quesiions and Answers. IV, Final Examination, Trinity Term, 1S75; Questions and Answers. V. A New Law Di^dlonary, VI. Correspondencie and Notices. No. XXIII.— Easter, 1875. I. The Statute of Uses, II. Thp Statutes of 1874 (Third Notice). HI. Dierest of Cases. IV, Inter- mediate ExuDlnaiioD, Hilary Term, 1875; Questions and Aoswen. V. Final Examination, Easter Term. 1875 ; Questions and Answers, VL Correspondence and Notices. No. XXII.— Hilary, 1875. I. The Statnte of Frands in relation to Contracu of Sale : Sale v. Lambert, and Potter v. Duffield. II. The Statutes of I«74 (Second Notice). III. Digest of Cases. IV. Inrermediate Examination, Mtchaelmas Term, 1S74: Quettions and Answers. V. Fin^ Examination, Hilary Term, 1S75: Que*- ttons and Answers. VI. Notice of Intermediate Examinations for 1875. VII. Correspondenw, Sec. No. XXI.— Michaelmas, 1874. I, The Statutes of 1874 (First Notice), , II. Diijest of Cases. Til. IntermediBte Ex- amination, Trinity I'erm, 1874: Questions and Answers. IV. Final Examination, Michaelmas Term, 1874r: Questions and Answers. V. Reviews of Books. VI. Corre- sDondence and K otices. ___ _ *^ No. XX.— Trinity. 1874, I. Legislative Prospects of the Session, II. Digest of Cases. Ill, Intermediate Ex- amination. Easter Term, 18T4: Questions and Answers. IV. Final Examination. Trinity Term, 1874: Questions aud Answers. V, Reviews. VI, Correspondence and Notices, No. XIX.— Easter, 1874. I, Leadin^Cases, continued. II. Digest of Cases. III. Intermediate Examination, Hilary Term 1874: Qnestloni and Answers. IV. Final Examination, EasterTerm, 1874: Quesiions and Answem V, Review : Seventh Edition of Stephen's Blackstone** Commentaries. Vf. Correspondence, ke e- -o MESSRS. BUTTERWORTH, 7 FLEET STREET, E.G. 51 THE IiAVT EXAMINATION J OURNAI.— continued. No. XVIII.— Hilary, 1874. T. Statutes of 1873 CSecond "Notice including the Snpreme Court of JutJicature Act and subsequent Statutes). IT, Digest of Cases. III. Intermediate Examination, Michaelmas Term, 1873: Questions and Answers. IV. Final Examination, Hilary Term, 1874: Questions and Answers. V. Correspondence and Notices. No. XVII.— Michaelmas, 1873. I. Leading Cases (Xote by the Editor). II. Statutes of 1873 (First Notice). III. Digest of Cases. IV. Intermediate Examination, Trinity Term, J873: Questions and. Answers. V. Final Examination, Michaelmas Term, 1873: Questions and Answers VI. Notice of Intermediate Examination for 1874. VII, Reviews of Books. Vlil. Law Student's Societies. IX. Correspondence. No. XVI.—Trinity, 1873. 1. The Stud* nf the Law, concluded. I, Leadioff Case* : Spencer's Case, continuptl. ill. Digest of Cases. fV. Interniediate Examination, Easier, i873: Questions an* Answeri*. V. Final Examlna- tinn, Triniiy, 1673: QuestiODS ana Answers. VI. A Kevlew: Kelly'd Draftsman. VII. Corrcs- uondeiiceaad Notices. . No. XV,— Easter, 1873. I. The Study of the Law, continaed. IL Analysis of Leading' Cases. III. Di'ent of Cases. IV. 1 n- Cerme'liate Examination. Hilary Term, 1873: Quesiioas and Answers. V. Final Examination, toaster Term, 1B73 : Questions and Answers. VI. Correspondence and Notices. No. XIV.— Hilary, 1873. r. The Stiidvofthe Law, continued. II. Di^e'^tof CadFs. III. Intermediate Examination, Michael- mas Term,'l879: Questions and Answers. IV. Final Examlnaijop, Hilary Term, 1873: Questions and Anawere. V. Reviews. Vf. Answers lo Correspondents and Noiices. No.~ XIII.— Michaelmas, 1872. I. Pahlic Prosectitors, concluded. IL TheStatulesof 1872. III. Digest of Cases. IV. Intermediate Examination, Triniiy Term, 1872: Questions and Answers. V. Final Examlnalion, Michaelmas Term, 1B73: Qaestiuns and Answers. VL Reviews. VII. Answers to Correspondents and Notices. No. XII.— Trinity, 1872. I Public ProBPcntors, continued. IT. Stndy of the Law, continued. II . Digest of Cases.- IV. Inter- mediateExaminationCEa6terTer^l,lS72)QueslionsandAnswera. V. FiralExamination (Trinity Term, 1872) Que-tions and Answen. VI. Law Students Congress, Birmingham: LawExaminationB. VILA Review : Huut'sLaw of Fraudulent Conveyances and Bills of Sale. VIlI. Answers to Correspondents. No. XI.— Easter, 1872. I The Stndy «f the Law. 11. Legislative Prospects of the Session : Married Women's Property Act A'mendnipnt Bill : Imperial Court of AppeaL IIL Digest of Cases. IV. Intermediate Exaraiiiatioii QnestJoni and Answers (Hilary Term, 1872). V. final Examinatipn Questions aad Answers (Eabter lerm, 1872). VL Answers to Correspondents, No. X.— Hilary, 1872. r Notice of the late Editor. II. The Stndy of the Law. III. Digest of Cases. IV. Intermediate Ex- amination Qnestions and Answers (Michaelmas, 1871). V. Final Examination Questions and Answers (Hilary, 1872). VL Answers to Correspondents. No, IX.— Michaelmas, 1871. I On Examinations. IL TheSubjectof PubIicProsecutorfl,continued. IIL DlratofCases. IV. Inter- med"a^eE™minationQueBIion8iDCh!fty,Witliamsa^dSmIth(Trinltv,1871), withAnswer^^ y. Final ExaminationQ«esUonsandAn8wers(Michaelma8 Terra, 1871). VL Reviews of Books. VIL An-wers to Corespondents. ^^ VII I. -Trinity, 1871. I On theNeceisityof providinsaPahlicProBecutor: bythcEditor. L HowMr.ManslieidDenman ,«I^w=«Pi™i-"hvE H IlirDiEestofCMefl. Note by the Editor. IV. Intermediate Examination Sn^i^JS^^^^erfcLtir] imf. V. Final ExaminUn Questions and Answers (Trinhy, 1871). VI. CorrespondeDce, &c. • • Copies of Vol. I. of the Lam Examination Journal, containing * Ms. 1 to 14, with full Indexes and Tables of Cases cited, may nojB be liad, price \6s. hound in cloth. Vol. !!• of the same is also now ready, containing Nos. 15 to 28, leith Iiidex, price in cloth, 16». The Index to Vol. II. may be had separately to complete copies for binding, price 6d. sewed. 52 LAW WORKS PUBLISHED BY THE BAR EXAMINATION JOURNAL. THE BAR EXAMINATION JOURNAL, containing the Examination Papers on all the subjects, with Answei's, set at the General Examination for Call to the Bar. Edited by A. D. Tysse.v, B.C.L., M.A., Sir R.K. Wilson, Bart., M.A., and W. D. Edwards, LL.B., Barristers-at-Law. Published in Numbers, 8 vo., 3s. each, by post, 3s, Id., after the respective Examinations for Calls to the Bar in each year. Nos. 3, 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14, Hil. 1872 to Hil. 1877, both inclusive, may now be had. %* JVo. IS is a double number, price 6«., bij post 6«. 2d. Nos. 1, 2 and 5 are out of print. Copies of Vol. II. of the same, coH- taining Nos. 7 to 11, complete witJi Indexes, 4'e., inay be liad, price 16*. cloth. » THE AND STUDENT'S LITERARY MAGAZINE. Edited by JAMES ERLE BENHAM,- Formerly of ELing's College, London ; Author of "The Student's Examination Guide," &c. Novr Complete in Eighteen Numbers, containing all the Qnes- tionsj with Answers, from 1871 to 1875, and to he had in 1 Vol. 8to., price 18s. cloth. Nos. I- to XVm., may still be had, price 1«. each, by post 1«. \d. BALL'S POPUIiAR CONVEYANCER. THE POPULAR CONVEYANCER; being a Compre- hensive, Theoretical and Practical Exposition of Conveyancing, with Concise Precedents. By James Ball. 8vo. lO*. 6rf. cloth. CoKTENTs:— Chap. I. Introduction. — II. Terms employed in Conveyances. — III. Agreements or Contracts for Sale or Purchase. — IV. General Contracts. — V, Conveyances on . Sales. — VI. Leases. — VII. M■ Nichol- son forremoving Shingle from the Foreshore at Withernsea. Heard 31st May, 1870, at Hull. Svo. Is. sewed. 58 MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. Hnnter's Suit in Equity : An Elementary View of the Proceedings in a Suit in Equity. With an Appendix of Forms. By S. J. HuNTES, B.A., of Lincoln's Inn, Barrister at Law. Sixth Edition by Gr. W. Lawkancb, M.A., Barrister at Law. Post 8vo. 12s. cloth. Kerr's Action at Law : being an outline of the Juris- diction of the Superior Courts of Common Law, with an Elemen- tary View of the Proceedings in Actions therein. By Robert Malcolm Kerb, LL.D., Barrister at Law; now Judge of the Sheriflf's Court of the City of London. The Third Edition. 12mo. 9s. cloth. 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