((nriipll IGaui ^rlyool IGibtarg Cornell University Library KF 8855.B32 V.I Federal equity procedure :a treatise on 3 1924 020 119 156 Cornell University Library The ©riginal of this bqok is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020119156 FEDERAL EQUITY PROCEDURE A TREATISE ON THE PKOCEDUEE Uf SUITS IN EQUITY IN THE CIRCUIT COURTS OF THE UNITED STATES INCLUDING APPEALS AND APPELLATE PROCEDURE WITH APPENDIXES CONTAINING THE CONSTITUTION OF THE UNITED STATES ANNOTATED, FEDERAL JUDICIARY ACTS, COURT RULES, EQUITY FORMS, ENGLISH ORDERS IN CHANCERY ,i'." BY dLf Abates Of tee Bab of San Ahtohio, Texas IN TWO YOLuiiES VOLUME I. CHICAGO: T. H. FLOOD AND COMPANY. 1901. COFTRIGHT, 1901, BY T. H. FLOOD AND COMPANY, STATE JOUENAL FEINTING COMPANY, FnmTEElS .AlCD Stbbbottfbrs, MADISON. WIS. I DEDICATE THIS BOOK — THE RESULT OE TEN TEABS' UNEEMITTINO- EABOR — TO MY WIFE, MRS. ri:^IJLE St-RICKIjANB BATES, ■WITHOTJT WHOSE UNFAILING SYMPATHY AND INSPIRING COMPANION- SHIP AND AID ITS COMPLETION WOULD NOT HAVE BEEN POSSIBLE, NOK THE DEGREE OF ITS EXCELLENCE SUCH AS IT IS. IT IS MEET THAT IT SHOULD GO TO THE WORLD WITH THE BENEDICTION OF HER NAME UPON IT. PREFACE. This work has been written in response to a demand for a treatise containing a full and systematic statement of the pro- cedure in suits in equity in the circuit courts of the United States. During the last twenty-five years, the really great and important property litigation in this country has been chiefly in suits in equity in the federal courts, and such litigation is likely to increase with the progress of the country. The pro- cedure in such suits is the same in all the states of the Union, not controlled by procedure in the state courts, but materially variant from it ; and the busy lawyer, practicing in both state and federal courts, has often felt the need of a work furnishing readily a complete and comprehensive statement of the rules of procedure in suits in federal equity. The aim of the author has been to state fully the procedure in the prosecution and defense of a suit in federal equity, with all its incidents and minor details, from the preparation and filing of the bill to and including the final decree, and appeal and appellate pro- cedure. The successive steps in the progress of the suit, and the various rules of procedure applicable to them, have been stated in their due order and sequence. The book has been written throughout upon the principle laid down in United States equity rule ninety. Wherever any question of procedure is covered by a federal statute or an equity rule promulgated by the supreme court, such statute or rule is quoted or cited as conclusive of the question. "When there is no such statute or rule of court, the English chancery procedure as it existed in 1842, when the United States equity rules were adopted, is stated. Mitford's Equity Pleading, cited as " Redesdale," the second edition of Smith's Chancery Practice, and the first London edition of Daniell's Chancery Pleading and Practice are cited and frequently quoted, as stating the English chancery procedure adopted in the federal courts. No edition of Daniell, except the first London edition, is cited or in any way referred VI PEEFACE. to in this work; that edition, with the second edition of Smith, having been designated by the United States supreme court as containing a statement of the English chancery procedure adopted in the federal courts. For convenience, appendixes have been added, containing the federal constitution annotated, the original judiciary act, the judiciary acts now in force, the various court rules promulgated by the supreme court, also some forms in equity, and the English orders in chancery which form part of the English chancery procedure adopted in the federal courts. There is a general index to the text, and the constitution, judiciary acts, court rules and forms are separately indexed. The work is respectfully submitted to the bench and bar, whose ultimate judgment in such matters is generally just and correct; and if it shall, to any appreciable extent, receive their kindly recognition, the author will esteem it as a rich reward for his labor and care. 0. L. Bates. San Antonio, Texas, August IS, 1901. TABLE OF CONTENTS. YOLUME I. .(CHAPTER I. BASIS OF THE EQUITY JURISDICTION OF THE CIRCUIT COURTS OF THE UNITED STATES. Page. § 1. Introductory 1 3. Creation of the federal judiciary. 3 3. Constitutional grant of judicial power 3 4. Statutory grants of jurisdiction 4 5. Original jurisdiction of the circuit courts of the United States 5 6. Same — Jurisdiction under the bankruptcy act 9 7. Sources of the equity jurisdiction of the circuit courts of the United States 10 8. The system of equity jurisdiction and jurisprudence adminis- tered by the circuit courts 10 9. Same — Rules of decision same in all the states 11 10. Adequate remedy at law 13 11. The jurisdiction must appear upon the face of the record 13 CHAPTEE II. SYSTEM AND SOURCES OF EQUITY PROCEDURE ADMINISTERED IN THE CIRCUIT COURTS OF THE UNITED STATES. 13. Statutes adopting and regulating equity procedure in the United States circuit courts 15 18. Supreme court authorized by statute to make equity rules. ... 16 14. First equity rules promulgated by the supreme court 16 15. Same — Rules now in force 17 16. Procedure of the High Court of Chancery in England adopted 17 17. Same — Explanation of equity rule 90 by the supreme court . . 17 18. Same — Orders of the High Court of Chancery in England. . . 18 19. Circuit courts may make equity rules 19 30. Equity procedure same in all the, states 19 31. Authorities upon equity procedure in the circuit courts 30 33. Same — Chancellor Kent's opinions 31 33. Ancient English equity pleading 31 34. The matured English equity pleading 33 Vlll TABLE OF CONTENTS. CHAPTEE III. INTERLOCUTORY PROCEDURE BEFORE THE CLERK AT RULES AND BEFORE THE JUDGES AT CHAMBERS. Page. § 25. Circuit courts as courts of equity always open 36 26. The clerk to hold monthly rules and grant certain orders and proceedings 27 27. Orders by the judges at chambers and at rules. 28 28. The order book 30 29. Same — Notice 31 30. Policy and method of the interlocutory procedure 31 81. Same — When pleadings are to be filed 33 83. Same — When exceptions to pleadings for scandal and imper- tinence are to be filed 88 83. Same — When exceptions to answers for insufiBciency are to be filed 34 34. Default of parties to interlocutory procedure 85 35. Interlocutory procedure upon removal 36 36. Purposes of the first, second and third chapters 36 CHAPTER lY. PARTIES. 37. Parties the first consideration 38 38. Di£a.culties in stating a rule for all cases 39 39. General rule as to parties 40 40. Both the legal and equitable titles should be before the court 43 41. Inconsistent titles not to be joined 43 42. Principles upon which courts of equity act in deciding upon parties 43 43. Classification of parties by the United States supreme court. . 45 44. Persons out of the jurisdiction of the court 47 45. Same — Pleading 48 46. Parties out of the jurisdiction in ancillary suits 48 47. Absent parties to suits in rem 50 48. Same — Procedure to bring in absent parties 51 49. Trustees and beneficiaries 53 50. Same — Executors and administrators 54 51. Parties to suits for the administration of assets 55 53. Foreign executors and administrators 56 53. Suit to execute trusts of a will 57 54. Suits by testamentary trustees 58 55. Parties to railroad foreclosure suits 59 56. Suits in equity by stockholders 61 57. Suits against corporations — Who to defend — Intervening stockholders 63 58. Same — Officers made defendants for discovery 67 59. Parties to ordinary foreclosure suits 67 TABLE OF CONTENTS. IX Page. % 60. Parties to bills to redeem 69 61. Class suits — Numerous parties 70 62. Parties where real property is subject to successive estate. ... 70 63. Nominal parties 71 64. Parties jointly and severally liable 71 65. Objection for want of parties, when and how raised 73 66. Same — Objection at the hearing 73 67. Parties under disabilities — Infants, idiots, lunatics and mar- ried women 73 CHAPTEE V. PLACE OF BEINGING*SUIT — TERRITORIAL JURISDICTION. (a) General Principles. 68. Definition of jurisdiction 75 69. Civil and common-law classification of actions — Local and transitory actions — Real, personal and mixed actions 76 70. Title to real estate controlled by the lex loni rei sitcB 79 71. Suits for the recovery of, or for damage to, real property, local 80 73. Same — TiespsLSS quare clatisum f regit 80 73. The distinction between local and transitory actions preserved in federal procedure 81 74 Same — Ruling in Doulson v. Matthews approved by the United States supreme court , 87 75. Suits in equity are either local or transitory 89 76. Same — Railroad foreclosure suits 89 77. Distinction between local and transitory actions not affected by federal procedure act 90 (b) History of Federal Legislation on Territorial Jurisdiction. 78. Territorial jurisdiction controlled by federal legislation — Act of September 34, 1789 ..; 91 79. Same — Act of May 4, 1858 93 80. Same — Act of June 1, 1873 93 81. Same — United States Revised Statutes of 1878 93 83. Same — Act of March 3, 1875 95 83. Same — Acts of March 3, 1887, and August 13, 1888 96 (c) The Present State of the Law. 84 General statutes in force in relation to territorial jurisdiction 98 85. Same — Qucere: Has section 740, United States Revised Stat- utes, been repealed ? 98 86. The place of beginning suit — The general rule 99 87. Same — When jurisdiction is based on diverse citizenship 99 88. Same — Suits against domestic corporations 100 89. Same — Suits against railroad corporations 101 90. Same — Suits against national banking associations 103 91. Same — Suits against aliens and foreign corporations 103 93. Same — Suits arising under patent laws of the United States. 104 X TABLE OF CONTENTS. Page. § 93. Same — Suits arising under the trade-mark laws of the United States. 105 94. Same — Suits under laws of the United States to protect com- merce • • ■ 106 95. Same — Persons suing or sued in a representative capacity ... 106 96. Local suits under section 8, act of March 3, 1875 107 97. Where ancillary or dependent suits are to be brought. ....... 108 98. The right to be sued in a particular district waived by general appearance 110 CHAPTER VI. SUITS IN EQUITY COMMENCED BY ORIGINAL BILL. 99. How suit in equity commenced , 113 100. The preparation of the original bill 114 (a) Parts and Frame of the Original Bill as Matured in the High Court of Chancery of England. 101. Office and functions of the original bill 115 103. The address of the bill 116 103. Names and addresses of the plaintiffs 116 104. The stating part of the bill 116 105. The common confederacy clause 117 106. The charging part 117 107. The jurisdictional clause 119 108. The interrogating clause 119 109. The prayer for relief 130 110. The prayer for process 120 (b) Parts and Frame of the Original Bill Under the United States Equity Eules. 111. Nature and effect of the United States equity rules 130 113. What parts of the bill may be omitted 131 113. Address to the court and residence of the parties 121 114. The stating part and charging part of the bill partially blended 123 115. The stating part and charging part of the bill not wholly blended 123 116. The interrogating part of the bill 123 117. Same — Interrogatories not necessary to compel full answer. . 124 118. Same — Plaintiff's right to discovery 135 119. Exceptions to the rule that plaintiff is entitled to discovery. . 136 130. The prayer for relief and for special writs and orders 141 131. The prayer for the process of subpoena 141 133. The bill must be signed by counsel 143 133. What bills must be verified by oath 143 134. How oaths are to be administered 143 TABLE OF CONTENTS. XI (c) Some General Rules op Pleading. Page. § 125. The jurisdictional facts must be averred in the bill.' 144 136. How and when jurisdictional facts are to be averred in re- moval cases 147 127. Every fact essential to plaintiff's right must be stated in the bill 147 128. Common-law rules of pleading followed in equity pleading... 150 129. Same — Pleading title to real property 151 130. Same — Conditions precedent must be averred in the bill 159 131. Deeds, contracts and other instruments must be pleaded ao- I cording to their legal effect 165 182. The bill must not contain scandal nor impertinence 165 133. Same — Inherent power of the court over its own records 167 134. The bill must not be multifarious 167 135. Same — Common point of litigation 169 136. Same — No universal rule can be laid down 170 187. Same — Bill with a double aspect 171 138. Tlie degree of certainty required in a bill in equity 172 139. Bills by stockholders 173 (d) Amending the Oeiginal Bill. 140. The original and amended bills are one record 174 141. The general purposes of amendments ^ 175 142. The federal statute of amendments and jeofails 176 143. Same — Time within which amendments may be allowed 177 144. Amendments of .course before demurrer, plea or answer filed.. 178 145. Amendments after demurrer, plea or answer filed 179 146. Amendments after demurrer or plea allowed 179 147. Amendment after replication filed 180 148. Same — Form of averment in bill stating pretense of defend- ant 182 149. Amendments to put in issue new matter contained in defend- ant's plea or answer 183 150. What matter may be introduced by amendment 185 151. Amendment as to parties 186 152. When application for amending bills may be presented 187 158. How amendments are made 188 CHAPTER YIL FILING THE ORIGINAL BILL — ISSUING AND SERVICE OF SUB- POENA — APPEARANCE OF DEFENDANT. § 154. Filing the original bill 189 155. Issuing the subpoena 190 156. Service of the subpoena — By whom served 191 157. Substituted service in ancillary suits 193 158. Service on non-resident defendants in suits in rem 194 159. Exemptions from service of subpoenas 196 XH TABLE OF CONTENTS, Page. % 160. Return of the subpcena 198 161. When defendant must enter his appearance 198 162. General and special appearances 199 CHAPTER VIII. TAKING THE BILL PRO CONFESSO. § 163. Definition of decree pro confesso 303 164. Origin and history of the proceeding 203 165. The present practice of taking the bill pro confesso 206 166. The effect of taking the bill pro confesso 209 167. When a final decree pro confesso may be entered 210 168. Same — Striking out answer for contempt of judicial orders . . 213 169. Against whom the bill may be taken as confessed 223 170. Opening orders and decrees pro confesso 234 171. Eights of defendant after decree pro con/esso against him..., 325 CHAPTEE IX. MANNER IN WHICH A SUIT MAY BE DEFENDED. 173. The defenses to a bill, and the order in which they are made. 227 CHAPTEE X. FILING EXCEPTIONS TO THE BILL FOR SCANDAL AND IMPER- TINENCE. 173, Objections for scandal and impertinence, how taken 229 174, When exceptions for scandal and impertinence must be filed, 339 175, Filing exceptions and procedure thereon 330 176, Principles which control in deciding upon exceptions for scan- dal and impertinence 233 CHAPTEE XL DEMURRERS. 177, The time allowed defendant to file his defense to the bill 235 178, Demurrer in equity borrowed from the common law 235 179, Lord Redesdale's definition of a demurrer to a bill in equity. , 337 180, Classification of demurrers to relief by Lord Eedesdale 237 181, Another classification of demurrers to relief 238 183. Same — Demurrers to the jurisdiction 238 183. Same — Demurrers to the person of plaintiff 238 184. Same— Demurrers to the substance, of the bill 239 185. Same — Demurrers to the form of the bill 239 186. Demurrer that the subject is not appropriate for the exercise of judicial power 240 TABLE OF COM TENTS. Xiii Page. % 187. Same subject continued 343 188. Demurrer that the subject of the suit is not within the juris- diction of a court of equity 245 189. Same — Lord Eedesdale's summary of the equitable jurisdic- tion 2417 190. Demurrer that some other court of equity has the proper juris- diction 248 191. Demurrer for want of federal jurisdiction 251 193. Demurrer that the plaintifl has no title to the character in which he sues 253 193. Demurrer for incapacity of plaintiff to sue alone 253 194. Demurrer for defect of jiarties 255 195. Demurrer for multifariousness 357 196. Demurrer for laches 257 197. Demurrer based on the statute of limitations 260 198. Demurrer based on the statute of frauds 264 199. Classification of demurrers to discovery 366 800. Consequences of not demurring to discovery 267 201. Demurrer to bills not original 368 20a General and special demurrers 270 303. Same — In equity must express the causes 273 204. Demurrer ore iewws 273 205. Statement of the extent of the demurrer 274 206. A demurrer bad in part is bad in whole 275 207. Demurrer and answer to the same matter 276 308. Demurrer too restricted 277 309. Admifesions made by the demurrer 278 310. Speaking demurrers 278 211. Form of demurrer 279 313. Certificate of counsel and affidavit of defendant 280 313. Filing, setting down and hearing demurrers 280 314. Effect of allowing a demurrer 381 315. Effect of overruling a demurrer 282 216. No dem urrers in equity to answer and pleas 283 CHAPTER XIL PLEAS. 317. Pleas in equity derived from the common law 285 318. The general nature and classification of pleas at comibon law 286 219. Pleas in bar at common law 287 220. Singleness or unity of issue at common law 287 221. General classification of pleas in equity 289 223. The proper office of a plea in equity 289 223. Same — Singleness and materiality of issue 291 234. Pleading several pleas to different parts of the same bill 392 335. Several pleas by leave of court 293 336. What constitutes duplicity in a plea in equity 293 XIV TABLE OF CONTENTS. Page. § 327. Frame of plea determihed by form of bill 394 338. Pleas classified according to their form 396 339. Tlie necessary averments of a plea 301 330. Statement of the extent of a plea 303 331. Plea bad in part and good in part 308 283. Answer in support of plea 304 388. Same — When required 306 384. Same — Equity rule 308 335. Same — Discovery of documents 308 236. Test of the sufficiency of answer in support of plea 308 387. Answer in support of plea evidence for defendant 309 388. Answer in suhsidium of a plea 309 339. Jurisdictional objection in equity should be taken by special plea 310 340. Definition of pleas to the jurisdiction 311 341. Classification of pleas to the jurisdiction 313 343. Plea that the subject-matter of the suit is not within the ju- risdiction of a court of equity 313 343. Plea of personal privilege 314 344. Plea denying that jurisdictional amount is in dispute 315 245. Plea denying diversity of citizenship 317 246. Plea to jurisdiction in suits by consignees 318 247. When jurisdictional objection may be raised under the act of ' 1875 ^ 318 348. Reason and policy of the statute 319 349. Procedure under the act of 1875 319 350. Same — Formal plea to the jurisdiction the simplest method. 331 251. Discretion of the court is judicial and subject to review 333 352. Burden of proof upon );he issue of jurisdiction . 333 853. Presumptions in favor of the jurisdiction of courts 333 354 Pleas in abatement — Definition 333 355. Classification of pleas in abatement 334 356. Classification of pleas to the person of the plaintiff 334 257. Classification of pleas to the person of the defendant 334 258. Classification of pleas to the bill 335 359. Plea that plaintiff does not possess the character in which he sues 835 360. Plea that defendant does not sustain the character in which he is sued , 335 361. Plea of bankruptcy. 835 363. Plea of another suit pending 836 363. Reason for the rule that suit pending is pleadable in abate- ment of a second suit 329 264. Requisites of a plea of Us pendens. 830 365. Procedure when plaintiff sues both at law and in equity 331 366. Plea of want of parties 333 367. Pleas in bar — Definition 333 368. General classification of pleas in bar 333 TABLE OF CONTENTS. XV Page. § 269. Classification of pleas of statutes 333 270. Classification of pleas of matter of record 383 371. Classification of pleas of matter in pais 333 372. Classification of negative pleas 334 273. Pl'ea of the statute of limitations 334 274. Necessary averments of a plea of the statute of limitations. . . 335 375. Plea of laches 336 376. Plea of the statute of frauds 336 277. Plea of any other statute 337 378. Plea of a decree in equity 338 379. The extent of a plea of res judicata 339 280. Requisites of a plea of res judicata 341 381. Plea of a release. 343 382. Plea of a stated account 344 383. Plea of an account settled 345 284. Plea of an award , . 345 385. Plea of bona fide purchaser 345 386. Same — Notice 347 387. Plea of paramount title 348 288. Pleas to bills for discovery. 349 289. Pleas to bills not original 350 290. The form and frame of a plea 351 291. Plea must be supported by certificate of counsel and affidavit of defendant 353 293. Filing the plea 354 293. Proceedings to be taken by plaintifE upon a plea filed 354 294. The argument of a plea 355 395. Allovring pleas 356 396. Saving the benefit of a plea to the hearing 358 297. Ordering a plea to stand for an answer 358 298. Overruling pleas 359 299. Proceedings upon a plea of matter of record 359 300. The effect of joining issue upon and establishing plea by proof — The English rule abolished 360 391. The effect of falsifying a plea in bar 361 303. The effect of proving dilatory pleas 362 303. Plea allowed by prematurely excepting to answer 363 804. Amending pleas 364 CHAPTEK XIII. DISCLAIMER 305. Defense by disclaimer 365 306. Practice in regard to disclaimers 365 CHAPTEE XIY. ANSWERS. 807. When the ans\^r must be filed 369 308. Dilatory objections not presented by answer 369 b Xvi TABLE OF CONTENTS. Page. §309. The twofold office of an answer in equity ii69 310. The general nature of an answer as a defense 371 311. Any number of consistent defenses may be set up in an answer 872 313. What defenses in equity must be set up by answer 373 313. Any defense to the merits may be set up by answer ". 374 314 Same — Equity rule 39 375 315. Same — A judicial construction of equity rule 39 376 316. Defendant's duty to make discovery 378 317. The manner in which the defendant must answer the bill 379 318. Defendants must seek information to enable them to give dis- covery .' 383 319. Discovery of deeds, papers and documents 383 320. Exceptions to the rule requiring the defendant to make dis- covery 383 321. Same — Manner of making objections to giving the discovery 884 332. Effect of answer as evidence when defendant denies allega- tions of the bill 384 333. Same — Tested by the rules of evidence 886 334. Answer is not evidence for defendant when it admits allega- tions of the bill and states new matter to avoid them 387 335. Admissions made by defendant in his answer are conclusive. . 387 ■ 326. Answer of one defendant not evidence against co-defendant. . 388 837. Setting cause down for hearing on bill and answer 388 338. Effect of answer as evidence when oath is waived 389 329. The rule determining what allegations in the answer are re- sponsive 389 330. When answer of one defendant inures to the benefit of hio co- defendant 891 331. Answers in patent suits 893 333. Same — Notice of proof and decree 394 333. Same — Defense that device is not patentable 395 334. Procedure to compel answer. 896 335. Same — When nominal party need not appear 897 336. The form of an answer ' 397 837. Signature and oath of defendant 399 338. Answer by a married woman 399 339. Answer by an infant 400 340. Same — Method of appointing guardian ad litem 403 341. Answer of idiots and lunatics 403 843. Answer of corporations 403 843. Amending answers and filing supplemental answers 404 344 Same — United States equity rules 406 845. Requisites of application to amend an answer, or file a supple- mental answer 497 346. When answer may be amended, or supplemental answer filed 407 347. Supplemental answer to amended bill 408 348. A further answer upon sustaining exceptions for insufflcienoy 403 349. Taking answers off the file ' 409 TABLE OF CONTENTS. XVll CHAPTER XV. TROCEEDINGS TO BE TAKEN BY PLAINTIFF UPON AN ANSWER FILED. Page. % 350. Proceedings by plaintiff upon answer of defendant filed 410 351. Same — Due order of proceeding 410 CHAPTER XYI. EXCEPTIONS TO ANSWERS. 353. Two classes of exceptions to answers 413 (a) EXCEPTiONS FOE INSUFFICIENCY. 1-353. Definition of exceptions for insufficiency 418 354 When exceptions for insufficiency will be sustained 413 355. Exceptions to answers not under oath 413 356. Form and requisites of exceptions for insufficiency 414 357. When exceptions for insufficiency must be filed 415 358. Procedure on exceptions for insufficiency 415 ■359. Same — Further answer when exceptions allowed 416 360. Same — Costs upon exceptions 417 (6) Exceptions for Scandal and Impertinence. 361. Definition of scandal and impertinence 417 363. Each exception must be supported in toto 417 363. Filing the exceptions and procedure thereon 418 CHAPTER XVII. REPLICATIONS. 364. Lord Redesdale's definition and history of the replication 419 365. Special replications prohibited by United States equity rule. . 430 366. The form of a general replication 431 367. The office of the general replication 421 368. Same — When replication to answer must be filed 423 369. When replication to plea must be filed 423 "370. Filing replication nunc pro tunc. .■ . . 433 •371. Replications when there are several answers 433 CHAPTER XVIII. CROSS-BILLS. 373. Origin of cross-bills 434 373. Lord Redesdale's definition of a cross-bill . 435 374. Cross-bill defined by the United States supreme court 436 375. The essential characteristics of a cross-bill 427 376. The cross-bill must be germane to the original bill 427 377. Cross-bill for relief 439 ■378. Relief on answer without cross-bill 480 XVIU TABLE OF CONTENTS. Page. § 379. Cross-bill for discovery 431 380. Frame of orcss-bill — Parties to cross-bill — Filing cross-bill ... 432 381. A cross-bill is an ancillary suit 433 883. Service of subpoena on cross-bill 434 383. Priority of right to an answer to the original and cross-bills. . 435 384. Same — Enlarging publication till cross-bill is answered 436 385. Original and cross-bills heard together 436 386. Effect on cross-bill of dismissing original bill 436 387. No appeal from decree dismissing cross-bill 437 CHAPTER XIX. EVIDENCE. 388. Rules of evidence same at law and in equity 441 389. Sources of evidence in suits in equity 443 (a) The English Chancery Procedure in the Examination op Wit- nesses. 390. All evidence taken by depositions 443 391. Two kinds of examinations in chancery 443 393. Officers by whom witnesses were examined 443 393. Method of proceeding before examiners 444 394. Examination by commissioners 444 395. Examination de bene esse 445 396. Examination of witnesses abroad — Commission and letters rogatory 446 (6) Federal Equity Procedure in the Examination of Witnesses. 397. Mode of proof in equity prescribed by federal statutes and equity rules 448 398. Three months allowed to take testimony 447 399. Competency of witnesses in the United States courts .'. . 447 400. Two methods of examining witnesses de bene esse 448 401. Depositions de bene esse under act of congress 448 403. Same — Manner of taking 449 403. Same — Certificate and transmission 450 404. Same — Statutes construed strictly 45O 405. Depositions de bene esse by commission under equity rule 451,. 406. Four methods of examination in chief 451 407. Depositions " according to common usage " 453 408. Same — Act of congress of March 9, 189^ 453 409. Depositions taken by commission under the equity rules 453 410. Oral examination of witnesses before an examiner 454 411. Oral examination of witnesses in open court on the final hear- iJig 456 413. Procedure to compel attendance of witnesses before examiners and commissioners 457 413. Procedure to compel production of books, writings and docu- ments before examiners and commissioners 458 TABLE OF CONTENTS. XIX Page. § 414 Distance witnesses may be required to travel for examination 459 415. Bill in perpetnam rei memoriam 460 416. Depositions in District of Columbia in suits pending elsewhere 461 417. Letters rogatory 463 418. Same — Federal statutory regulations 463 419. Examination to impeach the competency and credibility of ^ witness 465 420. Demurrer to answering interrogatories 466 421. Motions to suppress depositions 467 422. Re-examination of witnesses 467 (C) DOCUMBNTAEY EVIDENCE. 423. Judgments and decrees conclusive evidence, when 467 424. Judgments of other states entitled to full faith and credit. .. 468 425. Foreign judgments — Their weight as evidence controlled by the rule of reciprocity 470 426. Parol evidence admissible to show the precise question deter- mined by a former judgment or decree 471 427. Judgments and decrees as muniments of title to real estate . . 473 428. Docket entries evidence of receipt of money by United States marshal ^ 473 439. Authentication of judgments. , 473 430. Authentication of foreign judgments 473 431. Authentication of legislative acts 473 433. Authentication of foreign laws 474 433. Authentication of records from other states kept in offices not appertaining to courts 474 434 Copies of records of the general land office 475 435. Copies of foreign laws and records relating to land titles in the United States 476 436. Copies of department records and papers 476 437. Copies of records and documents in the office of the solicitor of the treasury 476 438. Copies of instruments and papers in comptroller's office 476 439. Copies of organization certificates of national banks 477 440. Transcripts from books of the treasury department 477 441. Copies of postoffice records and of auditor's statement of ac- counts 478 443. Copies of statements of demands by the postoffice department 478 443. Copies of the records of the patent office 478 444 Copies of foreign letters patent 479 445. Printed copies of specifications and drawings of patents 479 446. Extracts from the journals of congress 479 447. Copiesof records in the offices of consuls and commercial agents 479 448. Little & Brown's edition of the United States statutes and treaties to be evidence 480 449. Proof of the execution of deeds and other private writings . . . 480 450. Same — Secondary evidence of execution 480 XX TABLE OF CONTENTS. Page, % 451. Exceptions to the rule requiring proof of execution of private writings — Ancient instruments 481 453. Same — When the deed is produced by the adverse party claim- ing an interest under it ; ■ • 482" 453. Same— Where defendant by his answer admits the execution 483- 454. Proof of the execution of wills and testaments devising real estate at common law 483- 455. The courts of the United States have no jurisdiction to take proof of the execution of wills and testaments 485- 456. Proof of the execution and contents of lost instruments 485- 457. Same— Lost will 486. 458. Same — Judicial records 486- 459. Same — Lost deposition 486 460. Same — When the instrument is beyond the jurisdiction of the court 486. 461 Proof of exhibits, viva voce, at the hearing 486 463. The production of documents by defendant as evidence for plaintiff 489 46.3. Passing publication of the testimony 490 464 Examination of witnesses ad informandum conscientiam ju- dicis, obsolete 491 (d) Judicial Notice. 465. Judicial notice — General rule 492 466. Federal courts take judicial notice of the federal constitution and laws 493 467. Same — Corporations created by federal law 493 468. Same — Treaties made by the United States 493 469. Same — Establishment of territorial governments 493 470. Federal courts take judicial notice of state laws 493 471. Same — United States supreme court on writ of error to state court 493 473. Courts of the United States take judicial notice of the state constitutional conventions 495 473. Federal courts take judicial notice of charters granted by a state, when 495 474. Federal courts take judicial notice of the laws of an antecedent government 496 475. The courts of the United States will not take judicial notice of foreign laws '. 497 476. Judicial notice of seals of notaries public 498 477. Courts of one state do not take judicial notice of the laws of another state 498 478. Judicial notice of territorial extent of governmental jurisdic- tion 499 479. Judicial notice of rules of navigation 499 480. Judicial notice of the proclamations of the president of the United States 500 TABLE OF CONTENTS. XXi Page. § 481. Judicial notice of the rules and regulations of the executive departments of the federal government 500 483. Judicial notice of the persons who preside over the patent office 500 483. Courts do not take notice of military orders 500 484. Judicial notice of the ordinary meaning of words 501 485. In taking judicial notice judges may refresh their memory and inform their conscience 501 (e) Peesumptions. 486. Classification of presumptions 501 487. Presumptions of fact 501 488. Same — Presumption as to the delivery of letters 503 489. Same— Domicile ^ 503 490. Disputable presumptions of law 504 491. Same — Presumption that public officers have done their duty 505 493. Same — Regularity of judicial proceedings 505 493. Same — That state courts will do what federal constitution and laws require 505 494. Same — Presumptions in favor of patents issued for public lands 506 495. Same — Persons acting in a public ofiice 506 496. Same — Presumption of death from seven years' absence 506 497. Same — Persons presumed to intend necessary consequences ofact 507 498. Same — Presumption of legitimacy — Testamentary recogni- tion of child — Civil-law rule 507 499. Same — Presumption of date and delivery of deeds 508 500. Same — Presumption of grant from long-continued possession . 509 501. Same — Possession by husband of wife's separate property creates no presumption of a gift 513 503. Fraus est odiosa et nonprcesumenda — Meaning of the maxim — Fraud established by circumstantial evidence 513 503. Presumption of the satisfaction and ademption of legacies. . . 514 504. Presumptions arising from the suppression of testimony 515 505. Conclusive presumptions of law 516 (/) Admissions. 506. Classification of admissions 517 507. Actual admissions upon the record 517 508. Constructive admissions upon the record 517 509. Admissions by stipulation 518 (gf) Some General Rules op Evidence. 510. Parol evidence inadmissible both at law and in equity to vary agreements in writing — Rule stated by United States su- preme court 518 511. Same — Extrinsic evidence to identify property and persons . . 520 512. Same — Patent ambiguities 520 513. Admissibility of extrinsic evidence in the interpretation of deeds and wills — English rule as stated by Mr. Spence 531 Xxii TABLE OF CONTENTS. Page. § 514 Same — When the evidence will he admitted 522 515. Same — Same — Extrinsic evidence to repel presumptions of law relating to legacies 535 516. Vice-chancellor Wigram's seven propositions regarding the construction of wills • "" ' 517. Extrinsip evidence admissible to correct fatal misdescription of real estate in a will • 529 518. The best evidence must be adduced 531 519. Same — Written instruments 533 520. The evidence must be confined to the matters in issue 533 521. Same — Confessions and admissions 5*53 CHAPTEE XX. INJUNCTIONS. 522. Definition and classification of injunctions —Temporary and perpetual injunctions 5^)5 528. Same — Coimmon and special injunctions 536 524. Same — Prohibitory and mandatory injunctions 537 525. Jurisdiction and power of the federal courts to grant injunc- tions ■ 538 526. Same — Federal courts may grant injunction where it may be granted by English chancery 540 527. Writs of injunction granted by supreme court justices and circuit court judges 510 528. Writs of injunction granted by district judges 541 529. No injunction granted until after bill filed 543 580. Same — Bill must contain special prayer for writ of injunction 542 531. Bill for injunction must be verified 543 532. No provisional special writ of injunction granted without notice 543 583. Same — Temporary restraining order pending application for special injunction 544 534. Same — Same — Application for special injunotion-Prooedure 545 535. Injunction bond — Condition. 546 586. Motions to dissolve injunctions — Abatement. 546 537. Motion to dissolve the common injunction 547 538. Motions to dissblve special injunction — The rule as stated by Justice Story 548 539. Assessment of damages on dissolution of injunction 549 540. Injunctions to restrain proceedings at law 549 541. Injunctions issued by federal courts to stay proceedings in state courts 550 542. Injunctions to relieve against judgments — The rule stated by Chief Justice Marshall ' 551 543. Injunctions issued by federal courts against judgments in state courts ■ 553 544 Injunction to restrain threatened defenses to a " proposed ac- tion at law " '. 552 TABLE OF CONTENTS. XXIU Page. % 545. Restraining the prosecution of suits in foreign jurisdictions. . 553 546. Injunction to restrain the collection of taxes 553 547. Same — Overvaluation of property for taxation 554 548. Same — Same — National bank stock 555 549. Injunctions against unlawful restraint of trade and commerce 557 550. Same — Not granted by federal courts to restrain monopoly in necessary of life 559 551. Injunctions against unlawful restraint of the import trade . . 563 553. Injunctions against violations of the acts to regulate inter- state commerce 564 553. Injunctions against infringements of common-law trade-marks 567 554. Injunctions against infringements of registered trade-marks. . 568 555. Injunctions against infiAngements of copyrights 568 556. Same — Dramatic and musical compositions — Procedure — Writ of injunction served anywhere in the United States . . 570 557. Restraint of copyright frauds 571 558. Injunctions against infringements of patents for inventions . . 573 559. Injunctions against executive state officers — No suit against a state maintainable 573 560. Same — Rules announced by the United States supreme court since the Eleventh Amendment 574 561. Same — Restraint of state railroad commissions 578 563. Injunctions to restrain vs^aste and trespass 580 563. Injunctions to restrain nuisances, private and public 581 564. Same — Obstruction of interstate commerce 584 565. Summary of the ordinary objects of the writ of injunction. . . 587 566. Injunctions in removal cases continued , 588 567. No injunction against appointment or removal of public offi- cers 588 568. No injunction to stay criminal proceedings 589 569. Breach of injunctions 589 570. Same — Contempt — Power to punish 590 571. Same — Procedure in contempt cases 591 CHAPTEE XXI. WRIT NE EXEAT REGNO. § 573. Nature and purposes of the writ 593 573. Procedure in the English chancery to obtain the writ 595 574. The form of the writ ne exeat regno 596 575. Discharge of the writ 597 576. Writ ne exeat issued by federal courts and judges 598 577. Same — Where imprisonment for debt is abolished 598 678. Same — Bill must specially pray the writ 599 Xxiv TABLE OF CONTENTS. YOLUME II. OHAPTEE XXII. EECEIVERS. ■^ Page. 579. The scope of this chapter. . . .* 603 580. Receiverships and receivers defined , 603 581. The power to appoint receivers inherent in courts of equity. . 605 582. When a receiver vpill be appointed — Judicial discretion 606 583. Same — In suits to foreclose mortgages 610 584. Appointment of a receiver does not- affect the right to the property 610 585. No receiver appointed until bill filed 61-1 586. Receiver appointed before answer filed 613 587. Application for appointment of receiver and notice 613 588. Appointment of receivers — Procedure in the English chan- cery as it existed A D. 1843 i.. 613 .589. Power of federal courts to appoint managing receivers of rail- roads 619 590. Same — Reason for exercising power 620 591. Mortgagees not entitled to income before demand made 623 593. The objects and purposes of railroad receiverships. 623 598. Grounds for the appointment of a railroad receiver 625 594. Order appointing a railroad receiver — What it should contain 626 595. Who may be appointed a railroad receiver 629 596. Same — Federal statutory restrictions 630 597. Bond and oath of the receiver 630 598. Powers and duties of a railroad receiver — He must execute the orders of the court 633 599. Same — Must manage and operate the road according to state laws 635 600. Accounts of receivers — Procedure 636 601. Compensation of receivers 638 603. Adoption of existing contracts by receivers 639 603. Suits against receivers 640 604. Same — Federal statutes authorizing suits without leave of court 641 605. Same — Same — Suits for personal injury — After property restored to owner 643 606. Same — Suits in rem touching the trust estate ' 643 607. Right and duty of receiver to defend suits 644 608. Suits by receivers 645 609. Application for writ of assistance by receivers 64ft 610. A receiver cannot sue in a foreign jurisdiction 647 611. Appeal by receivers 648 612. Conflict of jurisdiction in receivership cases 649 TABLE OF CONTENTS. XXV Page. % 613. Same — When jurisdiction attaches 649- 614. Advice to receivers 650 615. Removal of receivers 651 616. Discharge of receivers 652 617. Ancillarj' receivers — Courts of primary and ancillary jurisdic- tion 653 618. Preferential debts in railroad receiverships 654 619. Same — Rule as to outstanding debts stated by Chief Justice Fuller 655 630. Same — Supplies furnished on faith of current earnings 655 631. Same — Same — No absolute rule for all cases 656 623. Same — Receiver's certificates 657 633. Debt for original construotion not a preferential debt 658 CHAPTER XXIII. INTERVENTION. 624. Intervention derived from and defined by the civil law 659 625. Two kinds of intervention in the English chancery 661 626. Intervention by formal bill 661 627. Examination pro interesse suo, or intervention by petition 663 638. Both methods of intervention adopted in the federal courts . . 664 639. The judicial procedure in interventions in railroad receiver- ship case 665 630. Same — Pleadings, order of reference, proceedings in the mas- ter's oflSce, report, action of the court, and appeal 667 631. Right of bondholders to intervene 670 633. Right of stockholders to intervene 670 CHAPTER XXIY. BILLS OF REVIVOR AND SUPPLEMENTAL BILLS. 633. When and how a suit in equity becomes defective or is abated — Lord Redesdale's statement of the doctrine 671 634. Same — Abatement , 674 635. Classification of bills to revive and C9ntinue suits 675 636. English chancery remedies of supplement and revivor adopted in the federal courts 675 a) Supplemental Bills, and Original Bills in the Nature of Sup- plemental Bills. 637. Leave to file a supplemental bill — Equity rule 57 676 638. When a supplemental bill is the appropriate remedy — Gen- eral rule. 677 639. Same — Upon a new interest 680 640. Same — When plaintiff becomes a lunatic 680 ■ 641. Same — Upon the determination of the interest of a plaintiff suing in autre droit 681 XXVi TABLE OF CONTENTS. Page. % 643. When an original bill in the nature of a supplemental bill is the appropriate remedy • ^^^ 643. Same — Rule stated by Lord Eedesdale 684 644 At what stage of the suit a supplemental bill may be filed 686 645. Frame of supplemental bills, and original bills in the nature of supplemental bills — Parties — SubpcBua 687 646. Demurrers to supplemental bills 691 647. Pleas to supplemental bills 691 648. Answers to supplemental bills 691 (6) Bills of Revivob, Original Bills in the Nature of Bills of Re- vivor, AND Bills of Revivor and Supplement. 649. Revivor derived from the civil law 693 650. Revivor in federal equity— Equity rule 56 693 651. (1) Bills of revivor; (3) Original bills in the nature of bills of revivor; (3) Bills of revivor and supplement — Distinction and functions 693 653. Same — Frame of such bills — Parties — Defenses 698 653. The order of revivor 703 654. The right of plaintiff and his representatives to revive 703 655. The right of defendant to compel plaintiff to revive or have order of dismissal 703 656. The right of defendant and his representatives to revive after decree 704 657. Bill to carry a decree into execution 70fi CPIAPTER XXV. DISMISSAL OF BILLS. 658. Dismissal by plaintiff — English rule 707 659. Same — Rule in the circuit courts of the United States 709 660. Motion by defendant to dismiss bill — English rule 711 661. Same — Rule in the circuit courts of the United States 713 663. Procedure by defendant to obtain the order of dismissal 713 663. The effect of the dismissal 713 664. Dismissal after election to proceed at law 714 665. Effect of dismissal on cross-bill .* 714 666. Dismissal for want of jurisdiction 714 OHAPTEK XXYI. INTERLOCUTORY APPLICATIONS AND ORDERS. 667. Interlocutory applications in the English chancery 715 668. Classification of motions and petitions in suits in equity in the circuit courts of the United States ; 718 669. All motions as well as petitions should be wrjtten 718 670. Motions ore tenus are frequently entertained 713 671. Orders grantable of course by the clerk of the court at rules. 719 TABLE OF CONTENTS. XXVU Page. 673. Special orders 720 673, The payment of money into court 730 674 Same — Federal statutes 721 CHAPTEK XXVII. HEARING AND REHEARING. 675. Convenience of considering- the hearing and rehearing in the same chapter 733 (a) The Hearing. 676. Setting the cause down for hearing — English chancery pro- cedure • 733 677. Same — Procedure in the federal courts 734 678. When a cause may be set down for hearing ,. 724 679. Hearing the cause 735 680. Hearing on bill and answer 736 681. On final hearing interlocutory decree may be vacated 737 (b) Rehearing. 683. Petition for rehearing — What to contain — When to be filed . . 738 683. Same — Procedure 729 684. Rehearing upon interlocutory decree 730 685. Rehearing after appeal 731 686. Order granting or refusing rehearing not reviewable on appeal 733 687. Rehearing where no appeal lies 733 CHAPTEE XXVIII. DECREES, AND THEIR CORRECTION AND ENFORCEMENT. 688. Plan of this chapter 734 (a) The General Nature op Decrees. 689. Definition, classification and form of decrees 734 690. Drawing up, passing, entering and enrolling decrees — Eng- lish chancery procedure 736 691. Enrollment of decrees in the federal courts 739 693. Interlocutory decree defined 739 693. Final decree defined 741 694. Final decree on demurrer 743 695. Decree in foreclosure suits 743 696. Same — Money decrees for balance above proceeds of sale. . . 748 697. Requisites of a final decree of foreclosure 748 698. Dependent or subsequent final decrees in a cause 749' 699. Decrees upon intervening petitions 751 700. Decrees for or against receivers on their accounts 753 701. Decrees in equity either in personam or in rem 753 703, Final decree pro confesso 753 703, Decrees against infants 754 XXViii TABLE OF CONTENTS. Page. § 704. Liens of judgments and decrees — Federal statutes 754 705. Same — Same — Limitations 755 706. Interest on judgments and decrees 755 707. Same — Ten per centum damages on appeal for delay — Rules of appellate courts 756 <6) Remedies foe the Coerection, Alteration and Reversal of De- crees. 708. Four remedies for the correction of decrees 756 709. Correction of clerical mistakes in decrees 757 710. Bill of review — Its nature and oflBce — English chancery pro- cedure stated by Lord Redesdale 757 711. Same — Same — Further statement of the English chancery procedure 761 , 713. Remedy by bill of review in the federal courts 765 713. Same — Bill of review for errors apparent must be brought in time allowed for appeal. ... 1 . 766 714 Same — Parties to bills of review 767 715. Same — Leave to file a bill of review ^ 767 716. Same — Same — Performance of the decree 767 717. No bill of review after decision on appeal unless by leave of the appellate court 767 (c) Enforcing the Execution of Decrees. 718. Execution of decrees in equity — Originally in personam only — History of the English chancery procedure 768 719. Same — Same — Same — Reform of the English chancery pro- cedure by the orders of 1839 769 720. Execution of decrees in equity in the federal courts — Writ of assistance 769 731. Same — Writ of fieri facias for the collection of money decreed to be paid 770 723. Same — Writs of attachment and sequestration to enforce .... 770 723. Same — Orders affecting persons not parties to the suit 771 734 Execution of decrees ordering sales of property — Federal stat- ute : 771 735. Execution of decrees for partition of real estate 774 736. Execution of decrees to settle boundaries 775 737. Service of orders and decrees — " Writ of execution " 775 738. Final record in equity and admiralty oases. '. 775 CHAPTER XXIX. FEIGNED ISSUES. 739. Inquiries directed at the hearing 776 730. Feigned issues — When directed 777 731. Issue cannot be directed before a hearing 777 733. Order for an issue — Other procedure 778 TABLE OF CONTENTS. XXIX Page. \ 733. In equity oases, federal courts not bound to submit any issue of fact to a jury 780 734 Feigned issues in patent oases — Federal statute 783 735. Feigned issues upon interventions in railroad foreclosure suits 783 736. Verdict is advisory only , . . . ; 784 737. New trials 784 738. Retaining the bill with liberty to bring an action at law 786 739. A case at law 787 CHAPTEE XXX. PROCEEDINGS IN 'JHE MASTER'S OFFICE. (a) General Rules and Peinciples. 740. Appointment of masters — Equity rule 83 — Federal statutes . 790 741. Oath of office of master 791 743. Compensation of masters 793 743. Masters and their general powers defined by the United States supi'eme court 793 744. Same — Report of a master advisory only 7194 745. Same — Weight of the master's finding ; 794 746. The master cannot exceed the decree of reference 795 747. Pleading in the master's office 798 748. Discovery in the master's office 797 749. Evidence in the master's office 798 750. Parties entitled to attend before the master on a reference . . . 799 751. Same — Right of defendant to attend after decree pro confesso 801 (6) The Method of Taking and Stating an Account. 753. The successive steps in taking and stating an account 801 753. The preliminary hearing and interlocutory decree 803 754. Same — Decree must be interlocutory only — Correct proced- ure stated by Chief Justice Taney '. 803 755. The directions which should be contained in the order of ref- erence 806 756. Presenting the reference to the master 807 757. " "Warrant to consider decree " — English chancery procedure 807 758. Same — United States equity rules — Notice 808 759. Bringing in debtor and creditor account — First step in taking the account 808 760. Examination of the accounting party for discovery — Second step in taking the account 809 761. Same — Same — Examination upon interrogatories— Proced- ure 810 763. Production of documents by the accounting party— Third step in taking the account 811 763. Filing the charge and proceedings thereon — Fourth step in taking the account 813 XXX TABLE OF CONTENTS. . Page. % 764 Filing the discharge and proceedings thereon — Fifth step in taking the account 814 765. Warrant to show cause why the master should not proceed to prepare his report — Sixth step in taking the account 815 766. Warrant on preparing the report — Seventh step in taking the account : 816 767. Preparing the master's report — Eighth step in taking the ac- count — What report to contain 810 768. Same — Stating the account by the master. 817 769. Same — Same — Rule for computation of interest — Chancellor Kent's rule 818 770. Same — Same — Compounding interest against trustees. 818 771. Same — Same — Same — Date to which interest should be com- puted — Master's report liquidates the debt 819 773. Warrant that the master has prepared the draft of his re- port — Ninth step in taking the account 830 773. Filing objections to the master's draft report — Tenth step in taking the account 820 774. Warrant to settle and sign the master's report — Eleventh step in taking the account 831 775. Filing the master's report — Twelfth step in taking the account 831 776. Exceptions to the master's report — Time for filing-^Thirteenth step in taking the account 823 777. Same — Same — Same — OflSce and requisites of exceptions . . 833 778. Same — Irregularities in the proceedings before the master. . . 824 779. Hearing the exceptions by the court — Fourteenth step in tak- ing the account 825 780. Costs of exceptions 826 781. Further directions 826 (c) Other Proceedings in the Master's Office. 783. Administration of assets — Equity rule 837 783. References in the administration of assets 827 784> Same — Creditor's charge 887 785. Same — Examination of creditor by the master for discovery 838 786. Exceptions for scandal and impertinence referred to the master 838 787. Exceptions to an answer for insufficiency not referred to the master , 838 788. Petition to review master's report 838 789. Masters should keep register of the proceedings in causes re- ferred to them 839 CflAPTER XXXI. APPEALS IN EQUITY. (a) Distribution of Appellate Jurisdiction by Act of March 3, 1891 — General Statement. 790. Decrees in equity reviewed o,u appeal only 831 791. The exclusive rule of federal appellate jurisdiction furnished by judiciary act of March 3, 1891 833 TABLE OF CONTENTS. XXXI Page. § 792. Appellate procedure not changed by act of March 3, 1891 833 793. No pecuniary limit on appeals from the circuit and district courts 833 794. Pecuniary limit on appeals from the circuit court of appeals. 833 795. Appellate jurisdiction of the supreme court over highest courts of the states, not affected by judiciary act of March 3, 1891 . 833 (b) Appellate Jurisdiction op the Supreme Court Over the Dis- trict Courts and Circuit Courts. 796. Six classes of cases which may be appealed direct from the district courts and circuit courts to the supreme court 886 797. Appeal to the supreme court upon the question of jurisdiction alone * 837 798. Same — Certifying the question of jurisdiction 838 799. Appeals in cases arising under the constitution or laws of the United States 839 800. Same — Babeas corpus 841 801. Time within which appeals to the supreme court must be taken — Two years 841 803. Certificate of question of jurisdiction must be granted during term in which decree is entered 841 803. No appeals but from final decrees — Exception 841 804 Same — Order remanding cause 843 (c) Appellate Jurisdiction op the Circuit Courts op Appeals Over THE District Courts and Circuit Courts. 805. The class of cases which may be appealed from the district courts and circuit courts to the circuit courts of appeals. . . . 842 806. Same — In what cases the judgments and decrees of the cir- cuit courts of appeals are final 843 807. Same — Ancillary suits 843 808. Time allowed for taking appeals to the circuit courts of ap- peals — Six months \ 844 809. Same — Interlocutory appeals — Thirty days 844 (d) Appellate Jurisdiction op the Supreme Court Over the Circuit Courts op Appeals. 810. Three methods by which the appellate jurisdiction of the su- preme court over the circuit courts of appeals may be in- voked 844 811. Certified question 844 812. Same — Rules of procedure 845 813. Same — Same — Certificate must contain statement of facts — Supreme court rule 846 814 Certiorari. 847 815. When the writ of certiorari will be issued 847 816. Application for writ of certiorari — Supreme court rule 848 817. Appeals and writs of error 848 818. Time allowed for taking appeals from circuit court of appeals to supreme court 849 XXXU TABLE OF CONTENTS. (c) Appellate Peoceduee in the Fedeeal Courts. Page. § 819. The system of appellate procedure adopted in the federal courts 849 820. Petition for appeal — Assignment of errors. 850 821. Allowance of appeals — Citation 851 822. Same — Same — Summary of the procedure by Chief Justice Fuller 854 823. Same — Same — Service of citation ; 854 824 Supersedeas bond. 855 835. Cost bond in appeals from interlocutory decrees. 855 826. All appeals returnable in thirty days. 856 837. Docketing case and filing record 856 888. Parties to appeals — Joint decrees.— Summons and severance. 857 829. Same — Several decrees 859 830. Same — Death of party after decree and before appeal 860 I 831. Same — Death of party after appeal 860 833. Transcript of the record on appeal 863 833. Same — Translations 863 834 Certiorari for diminution of the record 863 835. . Printing the record 864 836. Briefs. 865 837. Objections to evidence in equity and admiralty cases. ....... 867 888. Judgments and decrees on appeal 867 839. Same — On appeals from interlocutory decrees under judi- ciary act of March 3, 1891 868 840. Rehearing 868 841. The mandate. 869 CHAPTEE XXXII. COSTS. 842. Costs in federal courts regulated by statute and court rules. . 871 843. Expenseof administering a trust estate — Counsel fees 872 844. Costs in equity discretionary , 873 845. No costs when suit dismissed for want of jurisdiction 873 846. Supreme court costs 873 APPENDIX I. Constitution of the United States 877 APPENDIX II. Original judiciary act, September 34, 1789 897 Judiciary act, March 8, 1875 937 Judiciary act, March 3, 1887, as corrected by act August 13, 1888 934 Judiciary act, March 3, 1891 94O Joint resolution to provide for the organization of the circuit courts of appeals 947 TABLE OF CONTENTS. XXXIU Page. Act amending section 7, judiciary act, March 3, 1891 948 Act amending section 5, judiciary act, Marcli 3, 1891 949 Suits against the government — An act to provide for the bringing of suits against the government of the United States 950 APPENDIX III. Eules of the supreme court of the United States 957 ■Order in reference to appeals from the court of claims — Regulations prescribed by the supreme court of the United States under which appeals may be taken from the court of claims to said supreme court 979 liules of practice in equity 981 Rules of practice in admiralty. 9, 1010 Rules of the court of claims 1088 Eules of the United States circuit court of appeals 1064 APPENDIX lY. English orders in chancery: Orders of April 3, 1838, as amended November 23, 1831 1139 Orders of December 31, 1883 1147 Orders of May 9, 1839 1161 Orders of May 10, 1839 1163 Orders of August 36, 1841 1173 APPENDIX V. IForms in equity 1189 TABLE OF CASES. Eeferences are to pages. A. & V. Coal Co. V. Central R. Co„ 669, 794, 801. * Abraham v. North German Fire Ins. Co., 193. Abraham v. Ordway, 358. Adair v. Thayer, 730. Adams v. Adams, 386. Adams v. Robinson, 198. Agar V. Regent's Canal Co., 379. Agawam Woolen Co. v. Jordan, 393, 394. Aggas V. Pickerel!, 334 Alardes v. Campbell, 345, 376. Albuquerque v. National Bank, 554. Alexander v. Horner, 47, 355. Allen V. Baltimore & Ohio R. Co., 553, 576. Allen V. Blount, 198, 784. Allen V. Dallas & W. R. Co., 636. Allen V. Pullman Palace Car Co., 245, 553 Allen V. Randolph, 395, 301, 303, 305, 343, 876. Allen V. Southern Pao. R. Co., 841. Allen V. Wilson, 324. Alley V. Nott, 743. Alsop V. Riker, 358. Alston V. Jones, 143, 354. Alviso V. United States, 853. Ambler v. Choteau, 149, 278. American Ass'n, Lim., v. Eastern Kentucky Land Co., 10, 36, 353. American Bell Tel. Co. v. Western Union Tel. Co., 709. American Bible Society v. Price, 55. American Box Mach. Co. v. Cros- man, 171. American Bridge Co. v. Heidelbach, 633. American Construction Co. v. Jack- sonville Rj. Co., 847. American Life Ins. & Trust Co. v. Sackett, 680. American Steel & Wire Co. v. Wire Drawers' and Die Makers' Unions, 177, 373, 280, 354, 364, 408, 678. American Union Telegraph Co. v. Middleton, 80, 91. Ames V. Hager, 5. Amory v. Amory, 756. Amsinck v. Barclay, 598. Amy V. Watertown, 193. Anderson v. Dunn, 591. Anderson v. Watt, 13, 503, 504 Anderson v. White, 705. Andres v. Lee, 391, 393. Andrews v. Powys, 608, 610. Angel V. Smith, 643, 661, 664 Anon., 611, 661, 664 Antonio v. Greenhow, 576. Applegate v. Lexington & Carter County Mining Co., 483, 505. Apthorp V. Comstock, 777, 779, 780, •785. Arkansas v. Schliesholz, 838. Armitage v. Wadsworth, 334. Armstrong v. Ettlesohn, 5. Armstrong v. Lear, 498. Armstrong v. Trantam, 5. Armstrong v. United States, 500. Arndt v. Griggs, 108. Arnett v. Welch, 408. Arrowsmith v. Gleason, 79, 553. Asay V. Aliens, 819. Aspen Mining & Smelting Co. v. Bill- ings, 738, 733, 869: Aston V. Lord Exeter, 787. Atchison v. Morris, 197, 300. Atkins V. Fiber, etc. Co., 200. Atkins V. Wabash, St. L. & P. Ry. Co., 651. Atkinson v. Cummins, 521. Atkinson v. Leonard, 593. Atkyns v. Wright, 388. Atterberry v. Gill, 179, 703. Attorney-General v. Bank of Che- nango, 543. Attorney-General v. Brown, 583. Attorney-General v. Clarendon, 589. Attorney-General v. Heishon, 583. Attorney-General v. Jackson, 333. Attorney-General v. Manchester & Leeds Ry. Co., 537. Attorney-General v. Mayor of Coven- try, 664 Attorney-General v. New Jersey R. Co., 583. Atwill V. Ferrett, 275. XXXVl TABLE OF OASES. References are to pages. Augerstein v. Hunt, 593. Austin V. Riley, 311, 313. Ayers v. Carver, 369, 436, 437, 439. 431, 433, 436, 437. Ayers v. Chicago, 369, 439. Ayers, In re, 553, 575, 576. B. Babcock v. Millard, 109, 193, 434 , Backhouse v. Middleton, 698. Bacon v. Northwestern Mut. Life Ins. Co., 12. Bacon v. Rives, 361. Bacon v. Texas, 835. Badger v. Badger, 150, 360, 336, 385, 715. Bagley v. Adams, 859, 376. Bagnal v. Bagnal, 680. Bailey v. Hannibal & St. J. R. Co., 530. Bailey v. Wilson, 380. Bailey Washing Machine Co. v. Young, 399, 409. Baiz, In re, 501. Baker v. Adm'r of Backus, 603, 611. Baker v. Cummings, 334. Baker v. White, 743. Baker v. Whiting, 361, 730, 731. Baloom v. Life Ins. Co., 418. Balfour v. Portland, 555. Baltimore & Potomac R. Co. v. Fifth Baptist Church, 583. Baltimore & P. R. E. Co. v. Sixth Presb. Church, 505. Bampton v. Birohall, 393. Bank v. Calhoun, 665. Bank v. Deveaux, 3. Bank v. Earle, 101. Bank v. Epping, 73. Bank v. Geary, 389. Bank v. Leland. 109, 193, 484 Bank v. Levy, 381. Bank v. Lynn, 381. Bank v. Moss, 318. Bank v. Rose, 710. Bank v. White, 19. Bank of Columbia v. Hagner, 164 Bank of Kentucky v. Wisfcar, 869. Bank of Miss. v. Duncan, 606. Bank of Orleans v. Skinner, 543. Bank of United States v. Corcoran, 503. Bank of United States v. Merchants' Bank, 470. Bank of United States v. Ritchie, 400, 403, 754 Bank of United States v. White, 766, 767. Bank of Utica v. Messereau, 379. Banks v. Booth, 777. Banks v. Manchester, 383, 389, 410, 433, 569. Barber v. Mariner. 611. Barcus v. Gates, 169, 357. Barker x- Craig. 843. Barker v. Wyld, 389. Barker, Re, 403. Barley v. Adams, 361. Barnard v. Gibson, 741. Barney v. Baltimore, 46, 355. Barney v. Keokuk, 13. Barney v. Latham, 71. Barney v. Saunders, 819. Barr v. Gratz, 473, 483. Barr v. Lapsley, 164. Barret v. Beckford, 515. Barrow v. Hutton, 552. Barrow v. Rhinelander, 487. Barrow Steam Ship Co. v. Kane, 104 Barry v. Edmunds, 317, 330, 333, 333. Barry v. Foyles, 315, 334. Bartlett v. Ambrose, 358. Bartlett v. Gale, 130, 133, 389. Bartlett v. Gillard, 391. Barton v. Barbour, 630, 631, 635, 633, 641, 643, 654 784 Basey v. Gallagher, 781, 784 Basset v. Nosworthy, 346. Bast V. Bank, 519. Bates V. Clark, 577. Bates V. Coe, 393, 394 Batt V. Proctor, 53, 196. Batt Refrigerator Co. v. Gillett, 456. Baxter v. Willey, 79, 91. Bayley v. Adams, 834 361. Beall V. Cowsoh, 833. Beals V. Illinois M. & T. R. Co., 391. Bean v. Smith, 735. Beard v. Burts, 270, 351, 766. Beardsley v. Ark. & Louisiana Ry. Co., 857, 858, 859. Beatty v. Knowler, 495. Beaupre v. Noyes, 835. Beauregard v. New Orleans. 79. Beck V. Beck, 369, 353, 855, 363,430. Beck V. Insurance Co., 636. Beckford v. Wade, 509. Beddoes v. Pugh, 430. Bedell v. Bedell, 344. Beebe v. Robinson, 589. Beebe v. Russell, 741, 743. Behrens v. Sieveking, 330. Bein v. Heath, 19, 30, 74 354 546. Belford v. Scribner, 6, 570. Bell v. Johnson, 360. Bell V. Morris, 451. Bell V. Read, 338. Bell V. Woodward, 361, 876. Bellows V. Stone, 391. Benfield v. Solomon, 336. Benjamine v. New Orleans, 841. Bennett v. Butterworth, 245. Bennett v. Hoefner, 213. Bennett v. Taylor, 481. Benson v. Leroy, 666, 798. Benson v. Woolverton, 739. TABLE OF CASES. XXXVU Eeferenoes are to pages. Bentley v. Phelps, 730. Berkley v. Ryder, 430. Bernal v. Marquis of Donegal, 593. Bernard v. Toplitz, 679. Besan v. Leroy, 807. Bettes V. Dana, 676. Beverly v. Burke, 480. Bibb V. Allen, 467. Bill V. Western Union TeL Co., 174. Binkershoflf v. Brown, 169, 257. Binks V. Binks, 680, 683. BischofiEscheim v. Baltzer, 452, 458, Bissell V. Briggs, 76. Bissell V. Spring Valley Township, 339. Black V. Allen Co., 56, 186, 253, 325. Black V. Calnaghi, 707. '^ Blackburn v. Jepson, 777. Blackburn v. Portland Gold Mining Co., 840. Blackburn v. Selma E. Co., 715, Blackburn v. Stace, 730. Blacklock v. Small, 873. Blackly v. Davis, 311, 313. Blair v. Green, 431. Blair v. Turtle, 197. Blake v. Blake, 730. Blake v. Doherty, 520. Blake v. Iron & Coal Co., 109, 434. Blanchard v. Brown, 79. Blanchard v. Putnam, 394. Blatch V. Archer, 516. Blease v. Gar]ington,321, 457, 489, 715, 831. Blewitt V. Thomas, 348, 351, 352, 691. Blocker v. Phepoe, 583. Blondheim v. Moore, 611. Bloodgood V. Clark, 610, 612. Blossom V. Railroad Co., 750, 751, 774. Blount V. Burrow, 387. Bluck V. Elliott, 338. Blumlein, In re, 9. Blunt V. Burrow, 391. Blyman v. Brown, 786, 787. Board of Liquidation v. MoComb, 576, 577. Board of Supervisors of Henry County V. Winnebago Swamp Drainage Co., 260. Boardman v. Reed, 521. Bodwin v. Vandybendy, 347. Boehm v. Wood, 598, 595. Boesch V. Groflf, 732, 793, 794, 795. Bogardus v. Trinity Church, 394, 301, 302, 303, 307, 308, 335, 356, 376. Bogert V. Bogert, 135. Bolton V. Gardner, 301, 308, 805, 343, 356, 876. Bondurant v. Watson, 79. Bone V. Missouri Iron Co., 164. Boone v. Boone, 786, 787. Boone v. Chiles, 346. Booth V. Clark, 608, 632, 645, 647 648. Booth V. Leycester, 707. Bootle V. Blundell, 781, 787 Bors V. Preston, 144, 146, 363, 323. Boswell's Lessees v. Otis, 89, 771. Bostwick V. Bank of the United States, 741. Bostwick V. Brinkerhoff, 741. Bos worth V. Terminal Railroad Ass'n, 545. 661, 801. Botiller v. Dominguez, 244 Bouldin v. Massie, 485. Bowden v. Johnson, 649, 850. Bower v. Cross, 405. Bowers v. Smith, 354. Bowie V. Minter, 678, 684 Bowker v. Niekson, 831. Bowles V. Parsons, 664. Bowman v. Bowman, 235. Bowman v. Middleton, 777. Bowser v. Hughes, 326. Boyce v. Grundy. 13. Boyd V. Mills, 362, 364 415. Boyd V. United States, 136, 139, 384 Boyer v. Boyer, 557 Boyle V. Zacharie, 11, 20, 539, 540, 715. Brace v. Taylor, 387. Bracken v. Union Pac. Ry. Co., 52. Bradford v. Fulsom, 828, 339. Bradford v. Union Bank, 430. Bradford v. Williams, 106. Bradley v. Rhines, 318. Bradley v. Steam Packet Co., 531. Brady v. Waldron, 581. Brandies v. Cochrane, 851. Brandlyn v. Ord, 347, 718. Brashear v. West, 337. Brasher v. Van Cortland, 774 Brashier v. Gratz, 164. Brassey v. New York & N. E. R. Co., 626. Brayton v. Smith, 597. Brereton v. Gamul, 359, 379. Brewster v. Wakefield, 860. Briokell v. City of New York, 793. Bridges v. Sheldon, 197. Brigham v. Luddington, 647. Brine v. Insurance Co., 79, 91. Brinkerhoff v. Brown, 274 389. Brockett v. Brookett, 733, 785. Broderick Will Case, 347, 485. Bromley v. Child, 798. Bronson v. Keokuk, 53, 194 196. Bronson v. La Crosse R. Co., 670. Bronson v. Railroad Co., 64, 65, 67, 741, 748. Brooks v. Byam, 877, 379, 380, 413, 414 873. Brooks V. Farwell, 197. Brooks V. Gibson, 379. Brooks V. Greathead, 664. Brooks V. Railroad Co., 868. SXXVIH TABLE OF CASES. Beferences are to pages. Brooks V. Stolley, 183, 183, 184, 357. Broome v. New York & New Jersey Telephone Co., 537. Browder v. McArthur, 868, Brown v. Baxter, 743. Brown v. Brown, 845. Brown v. Buckley, 387. Brown v. Buena Vista County, 258, 553. Brown v. Colorado, 493. Brown v. Haff, 593, 595. Brown v. Higden, 678. Brown v. Huger, 530, 577. Brown v. Keene, 144, 146, 353. Brown v. King, 793. Brown v. Lake Superior Iron Co., 235, 653. Brown v. Martin, 156. Brown v. McConnell, 851, 853. Brown v. Newall, 431. Brown v. Pierce, 134, 371, 377, 379, 386. Brown v. Piper, 894, 395, 396, 493, 501, Brown v. Rioketts, 181, 819. Brown v. Union Bank, 743. Brown v. Wathen, 336. Browne v. Browne, 106. Brownsword v. Edwards, 361, 376. Bruecher v. Port Chester, 555. Brumley v. Manufacturing Co., 67. Buck V. Buck, 56, 186. Buck V. Colbath, 337, 551. Buck V. Lodge, 731. Buddicum v. Kirk, 453. Buffington v. Harvey, 733, 766. Bullock v. Gordon, 777. Buloid V. Miller, 413. Burnham v. Bowen, 665. Burgess v. Smith, 553. Burke v. Brown, 344, 345. Burke v. Milteniierger, 500. Burlington & Missouri E. Co. v. Thompson, 553. Burnell v. Duke of Wellington, 704. Burnham v. Bowen, 633, 654, 669, 750, .794, 801. Burnham v. Dolling, 739. Burroughs v. Oakley, 731. Burton v. Driggs, 486. Burton v. Ellington, 345. Bushnell v. Crooke Min. & Smelting Co., 868. ^ Butler V. Kinzie, 391. Butz V. Muscatine, 79. Buzard v. Houston, 13, 148, 246. Byers v. McAuley, 13, 79, 91. c. Cade V. Cunningham, 469. CaBsar v. Capel, 731. Caha V. United States, 500. Cake V. Mohun, 638. Caldwell v. McFarland, 391. Caldwell v. Taggart, 68, 69. Calkins v. Bertrand, 873. Callaghan v. Myers, 570, 793, 795. Calmady v. Calraady, 786. Calpham v. Boyer, 334. Calson V. Morris, 393. Camden v. Mayhew, 774 Camden v. Stewart, 793, 795. Cameron v. Hodges, 13. Cameron v. McEoberts, 47, 733. Campbell v. Brown, 864. Campbell v. Campbell, 803. Campbell v. City of New York, 676. Campbell v. James, 869. Campbell v. Laclede Gas Co., 475. Campbell v. Lowe, 786, 787. Campbell v. Mesier, 739. Campbell v. Morris, 543. Campbell v. Eankin, 341, 473. Campbell v. Taul, 167. Campbell v. United States, 839. Candles v. Pettit, 679. Capen v. French, 676. Capon V. Miles, 345. Capron v. Van Noorden, 145, 146, 253. Carey v. Brown, 53, 54, 73. Carey v. Curtis, 10, 353. Carey v. Houston & Texas Central E. Co., 664, 843. Carleton v. Leighton, 336. Carneal v. Bank, 736. Carnoohan v. Christie, 480. Carpenter v. Benson, 131. Carpenter v. Strange, 89, 470, 473, 771. Carr v. Duval, 164. Carr v. Fife, 149. Carr v. Gordon, 589. Carrington v. Holly, 707. Carter v. Burley, 498. Carter v. Roberts, 840, 841. Carter v. Treadwell, 335. Cartwright v. Hateley, 379. Cartwright v. Pultney, 786, 787. Cartwright's Case, 591. Caruthers v. Eldredge, 483. Case V. Kelly, 495. Casey v. Adams, 77, 90. Casey's Lessees v. Inloes, 509, 511. Castle V. Bullard, 514. Castro V. United States, 853, 858. Cavender v. Cavender, 34, 431. Central Nat. Bank v. Stevens, 338, 650. Central Nat. Bank of Baltimore v. Conn. Mut. Life Ins. Co., 433. Central E. Co. v. Central Trust Co., 748, 749. Central E. Co. v. Pettus, 873. Central Trust Co. v. Chattanooga, E. & C. R. Co., 635. Central Trust Co. v. Grant Locomo- tive Works, 270, 350, 738, 766. TABLE OF CASES. SXXIX Eeterenoes are to pages. Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 650. Central Trust Co. of New York v. McGeorge, 315. Chadbourne's Ex'rs v. Cos, 47, 48, 255. Chadwiok v. Broadwood, 140, 384. Chaffee v Quidnick Co., 553. Chaffin V. Hull, 169, 357. Chaffin V. Kimball, 323, 754. Chaires v. United States, 869. Chamberlain v. Agar, 334. Champlin v. Parish, 265. Chanoine v. Fowler, 498. Chapin v. Coleman, 388. Chapin v. Walker, 430. Chapman v. Barney, 13. ^ Chappedelaine v. Dechenaux, S44, 345 376 Chap'pell ' V. United States, 838, 840, 843. Chappell V. Waterworth, 147. Charlotte Nat. Bank v. Morgan, 315. Chase v. Cannon, 169, 357. Chase v. Curtis, 470. Chase's Case, 603, 607. Cheely v. Clayton, 504. Cheever v. Wilson, 493. Cheney v. Libby, 165. Cherokee Nation v. Georgia, 340. Cherry v. Clements, 391. Chester v. Life Ass'n of America, 674, 676, 683. Chester Iron Co. v. Beach, 135, 431. Chicago & Alton R. Co. v. Union Rolling Mill Co., 436, 709, 710. Chicago & Alton R. Co. v. Wiggins Ferry Co., 470, 498, 506. Chicago & Grand Trunk Ry. Co. v. Wellman, 580. Chicago & Northwestern R. Co. v. Ohle, 313, 330. Chicago & Vincennes R Co. v. Fos- dick, 746, 749. Chicago, Burlington & Quincy R. Co. V. Iowa, 580. Chicago, Burlington & Quincy R. Co. V. Turrill, 755. Chicago Deposit Vault Co. v. Mc- Nulta, 634, 635. Chicago, etc. R. Co. v. Third Nat. Bank, 430. Chicago, Milwaukee & St. Paul Ry. Co. V. Minnesota, 580. Chicago, St. Paul, etc. R. Co. v. Rob- erts, 843. Chicago Union Bank v. Kansas City Bank, 611. Chicot V. Lequesne, 845, 376. Chicot County v. Sherwood, 378. Child V. Gibson, 338. Childress v. Emory, 33i 335. Chirac v. Reinicker, 324. Chisholm's Ex'rs y. Georgia, 4, 573. Cholmondeley v. Lord Clinton, 263. Christie v. Bishop, 388. Christie v. Christie, 167. Christmas v. Russell, 469. Christy v. Pridgeon, 79. Church V. Hubbart, 473, 498. Chute V. Dacre, 405. Cincinnati, etc. R. Co. v. McKeen, 847. Citizens' Bank v. Cannon, 873. City Bank v. Hunter. 860. City of Detroit v. Detroit City Ry. Co., 709, 710. Clapper v. House, 778. Clarion Bank v. Jones, 507. Clark V. Courtney, 480, 481. Clark V. Graham, 79, 91. Clark V. Hackett. 513. Clark V. Kansas City. 743. Clark V. Killian, 370, 350, 766. Clark V. Matthewson, 49, 109, 193, 434, 674, 676. Clark V. Periam, 533. Clark V. Phelps, 327, 338, 276, 307, 376. Clark V. Rayburn, 746, 748, 749. Clark V. Ridgely, 612. Clark V. Sewell, 515. Clark V. Smith, 247. Clark V. Tipping, 431. Clark V. Turton, 533. Clark V. White. 387. Clark's Ex'i's v. Van Riemsdyk, 385, 386, 388. Clarkson v. De Peyster, 730, 819. Clason V. Morris, 391. Clough V. Bond, 687. Clement v. Packer, 12, 79, 91. Clements v. Moore, 387, 422. 423. Clifton V. United States, 532. Clyde V. Richmond & D. R. Co., 784, 786. Coal Co. V. Blatchford, 106. Coal Co. V. McCreery, 837. Coates V. Mackey, 470. Cobb V. Jameson, 796, 803. Cochran v. MoCleary. 589. Cooke V. Upshaw, 777. Coddington v. Pensacola & Ga. R. Co., 260. Coffee V. Grover, 499. Cohens v. Virginia, 3, 833, 840, 849. Coiron v. Millaudon, 44, 47, 48, 73, 355, 333, 736. Coke V. Bishop, 335. Coke V. Wilcox, 359, 415. Cole V. Cunningham, 553. Coleman v. Martin, 438. Colgate V. Campagnie, 139, 414 Collins V. Lovenberg. 678. Collins V. Thompson, 513. xl TABLE OF CASES. References are to pages. CoUis V. CoUis, 720. Colorado Coal & Iron Co. v. United States, 506. Colson V. Thompson, 164. Colton V. Boss, 171, 777. Columbus Watch Co. v. Bobbins, 845, 846. Colvin V. Jacksonville, 838, 841. Colvin, In re, 651. Comer v. Felton, 647, 770. Commercial Bank v. Reckless, 387. Commercial Ins. Co. v. Union Ins. Co., 386. Commissioners v. Lucas, 741. Commonwealth v. Gould, 603. Commonwealth v. Webster, 516. Compton V. Jessup, 109, 434, 664. Conard v. Atlantic Ins. Co., 324. Cone V. Cotton, 470. Connecticut v. Jackson, 818. Conner v. Drake, 710. Connolly v. Taylor, 175. Connor v. Featherston, 514. Conqueror, The, 848. Consequa v. Fanning, 487, 489, 803. Continental Life Ins. Co. v. Bhoads, 1, 13, 144, 145, 353, 333. Continental Trust Co. v. Toledo, St. L. & K C. R Co., 664, 837. Coody V. Gress Lumber Co., 481. Cook V. Mancius, 68. Cook V. Woodrow, 583. Cook County v. Calumet & Chicago Canal Co., 834. Coolidge V. Learned, 509, 513. Cooper V. Reynolds, 199, 469. Cooper Y. Tappan, 391. Cooper V, Thornton, 664. Coosaw Mining Co. v. South Carolina, 540,583. • Copous V. Kauffman, 403. Corbett v. Nutt, 89, 553. Corbin v. Black Hawk County, 318. Corcoran v. Canal Co., 59. Core V. Strickler, 774. Cornell v. Warren, 338. Cornett v. Williams, 505. Corning v. Lowerrer, 583. Cornish v. Acton, 798. Cortes Co., The, v. Tannhauser, 49, 50, 109, 193, 484, 485, 451. Corf ell V. Caine, 156. Cotter V. Ala. G. S. Co., 833, 833. Countess of Plymouth v. Bladon, 714. County of Tazwell v. Farmers' Loan & Trust Co., 174. County of Warren v. Marcy, 774 Couper V. Smyth, 589. Cowdry v. Railroad Co., 636, 638, 630. 633, 634, 638, 639, 838, 873. Cowslade v. Cornish, 798. Cox V. Davis, 481. Cox V. United States, 860. Coxe V. Smith, 786, 787. Cozine v. Graham, 264, 265, 366, 356. Crafts V. Clark, 470. Cragin v. Lovell, 80, 91. Craig V. McKinney, 344. Craig V. Smith, 766. Craighead v. Wilson, 741, 742, 803. Crane v. McCoy, 607. Cranstown v. Johnson, 768. Crawford v. Neal, 794, 795. Credit Co. v. Arkansas C. E. Co., 858. Credits Commutation Co. v. United States, 753. Creighton v. Kerr, 199, 300, 201. Crescent City & C. Co. v. Butchers' Union & C. Co., 277, 303, 330. Crespin v. United States, 496, 497. Crim V. Handley, 552. Crockett v. Lee, 148, 736. CroCkford v. Alexander, 581. Cromwell v. Sac County, 341, 468. - Crosby Steam Gauge & Valve Co. v. Consolidated Safety Valve Co., 819. Cross V. Allen, 13, 79, 91. Cross V. Cross, 508. Cross V. De Valle, 269, 436, 427, 439, 430, 436. Cross V. Evans, 845. Crouch V. Kerr, 283. Crouch, Ex parte, 551. Crow V. Wood, 626. Crowder v. Moone, 611. Crowder v. Tinkler, 583. Culver v. Uthe, 475. Gumming v. National Bank, 555, 557. Cunningham v. Macon & Brunswick B. Co., 576, 577. Cunningham v. Wegg, 353. Curling v. Marquis Townshend, 40), 407. Curran v. Campion, 169, 357, Currell v. Villars, 58, 484. Curtis V. Lord, 707. Curtis V. Masters, 418. Cuthbert v. Peacock, 515. Cutting, Ex parte, 753. D. Dade v^ Irwin, 148, 346. Dagley v. Crump, 405. Dainese v. Hale, 498. Dale V. Madison, 388. Dale V. McEvers, 389. Dale V. Eoosevelt, 777, 781. Daniel Ball, The, 578. Daniell v. Ballard, 388. Daniels v. Davison, 346. Darby v. Mayer, 484. Darby's Lessees v. Mayer, 58. D'Arcy v. Ketchum, 468, 469. Darcy's Ex'rs v. Cheney, 148, 358. TABLE OF CASES. xli References are to pages. Darnell v. Reymer, 364, 415. Darston v. Earl of Oxford, 815. Darthez v. Lee, 345. Davie v. Briggs, 607. Davies v. Davies, 739. Davies v. Lathrop, 106. Davis V. Brown, 343, 473. Davis V. Cranch, 437. Davis V. Oripps, 232, 418. Davis V. Davis, 181. Davis V. Dee, 334. Davis V. Duke of Marlborough, 603. Davis V. Easley, 509. Davis, V. Geissler, 838. Davis V. Gray, 576, 577, 608, 604, 632, 633, 641, 645, 646. • Davis V. Mapes, 379, 382. ' Davis V. Prout, 254. Davis V. Schwartz, 794, 795. Davis V. Speiden, 766, 767. Davis V. Wakelee, 553. Davis and Eankin Building & Mfg. Co. V. Barber. 838. Dawson v. Amey, 437. Dawson v. Dawson, 344 Dawson v. Prinoeps, 543. Debs, In re, 540, 565, 566, 584, 587, 590, 591. Deokerhoff, In re, 9. Deery v. Crary, 520. Dehon v. Foster, 553. Deimel v. Brown. 387, 888. Deitzsch v. Huidekoper, 434 Delahanty v. Warner, 589. Delancy v. Seymour, 777. De Lane v. Moore, 532. Delany v. Mansfield, 603. Delapiaine v. Lawrence, 751. De la Torre v. Bernales, 411. De Neufville v. New York & N. Ey. Co., 174 Denison v. Bassford, 399. Denning v. Smitli, 346. Depurton v. Young. 320, 333, 333. De Saussure v. Gillard, 835. Desmare v. United States, 503. De Sobry v. Nicholson, 311, 313, 813, 317. Despeaux v. Pennsylvania R. Co., 453. Devendorf v. Dioki ason, 603. Devil V. Browlow, 330. Dewall V. Covenhoven, 254 Dewees v. Dewees, 487. Deweese v. Reinhard, 549. De Witt V. Berry, 519. De Wolf V. Rabaud, 311, 313. 818, 817. Dexter v. Arnold, 69, 833, 823. Dias V. Merle, 678. Dick V. Hamilton, 388. Dick V. Swinton, 593, 597. Dickerson v. Colgrove. 549. Dickson v. Peppers, 198. Dickson v. Smith, 664. Didier v. Davison, 390, 293, 373. Dietzsch v. Huidekoper, 109, 550. Dillon V. Alvares, 828. Dillon v. Barnard, 278. Dinsmore v. Neresheimer, 553. Divina Pastora, The, 499. Dixon V. Astley, 720. Dixon V. Ramsey, 56, 358. Dixon V. Redmond, 410. Dixon V. Smith, 664 Dodd V. Daniel, 857. Dodge V. Israel, 454 Dodge T. Knowles, 853. Dodge V. Tulleys, 106, 146, 873. Dodge V. Woolsey, 61, 553. Dolder v. Bank of England, 405. Dormer v. Fortesque, 686. Dorsey v. Packard, 164 Douglas V. Butler, 74, 355. Douglass V. McChesney, 777. Douglass V. Meroeles, 830, 832, 825. Douglass V. Sherman, 698. Doulson V. Mathews, 86, 87, 91. Dow V. Beidleman, 580. Dow V. Memphis & Little Rook R. Co., 633, 635, 639, 633. Dowell V. Applegate, 180, 383. Downe v. Lewis, 739. Downing, In re, 9. Dows V. Chicago, 553. Dows V. McMiohael. 361, 363, 376. Dred Scott v. Sanford, 317. Drew V. Drew, 334. Drexel v. Berney, 549, 550. Drix V. Briggs, 301. Dublin Township v. Milford Savings Ass'n, 845. Du Bois V. Kirk, 573. Dubuque & Pacific R. Co., Ex parte, 781, 768. Duckworth v. TrafEord, 613. Dudley, In re, 541. Dunbar v. Myers, 395. Duncan v. Dodd, 774 Duncan v. United States, 19. Dunham v. Eaton & H. R. Co., 148. Dunham v. Jackson, 391. Dunlap V. Gibbs, 156. Dunlap V. O'Dena, 803. Dunlap V. Stetson, 49, 109, 111, 193, 484 Dunn V. Clark, 49, 193. Dunnell v. Henderson, 832. Dunscombe v. Dunscombe, 819. Dupleix V. De Roven, 334. Duponti V. Mussy, 25, 183, 183, 357. Durant v. Essex Co., 888. 339, 869. Durant v. Ritchie, 509. Duryee v. Lingheimer, 430. Dwight V. Humphreys, 143. Dwyer v. Dunbar, 485, 533. xlii TABLE OF CASES. References are to pages. E. Earl V. Raymond, 328. Earl Cowper v. Baker, 581. Earle v. Southern Pao. Co., 104, 105. Earl of Derby v. Duke of Athol, 768. Earl of Kildare v. Eustace, 768. Earl of Mexborough v. Bower, 538. Earl of Oxford's Case, 553. Earl of Winchelsea v. Garrety, 777. Easley v. Kellom, 766. Eastburn v. Downes, 873. East India Co. v. Donald, 385, 387. East Tenn., V. & G. E. Co. v. Atlanta & F. E. Co., 98, 99. Eastwood V. Vinok, 515. Eaton's Appeal, 39l. Eberly v. Goff, 391. Eokert v. Banert, 439. Edgell V. Felder, 793. Edgerton v. Young, 431. Edmonson v. Bloomshire, 851. Edson V. Munsell, 509, 511. Edwards v. MoLeary, 405, 407. Edwards v. United States, 199. Edye v. Eobertson, 243, 344. E. I. Co. V. Keightly, 388. Eilenbecker v. Plymouth County Dist. Ct., 458, 591. Ekin V. United States, 833, 840, 841. Elliott V. Eay, 470. Eldred v. Michigan Ins. Bank, 201. Eldridge v. Knott. 509. Electric Accumulator Co. v. Brush Electric Co., 709. Ellen wood v. Marietta Chair Co., 80, 83, 88, 91. Ellis V. Boston, Hartford & Erie E. Co., 611. Ellis V. Davis, 485. Ellison V. Cookson, 515. Ellsworth V. Curtis, 366. Elmendorf v. De Lacy, 143. El well V. Forsdick, 59. Elwell V. Hinckley, 509. Elwocd V. Flannigan, 493. Ely V. James, 405. Ely V. New Mexico & Arizona Ey. Co., 158, 373. Embre v. Hamed, 338. Emerson v. Davies, 715, 780. Emerson v. Harland, 334 Emery's Case, 383. Empire City Bank, In the Matter of, 630. Empire Distilling Co. v. McNulta, 669, 670. 794, 801. Endo V. Caleham, 345. England v. Downs, 254 Ennis v. Holmead, 498. Ennis v. Smith, 473, 474. Enos V. Capps, 333, 754. Ensminger v. Powers, 370, 350, 766. Ensworth v. Lambert, 68, 687. Entick V. Carrington, 136, 383. Erb V. Morash, 636, 643. Erhardt v. Boaro, 581. Erie Ey. Co. v. Eamsey, 553. Estes V. Trabue, 857. Eubank v. Wright, 796, 802. Eustes V. Bolles, 835. Evans v. Davenport, 311, 313. Evans v. Evans, 597. Evans v. Gee, 311, 313, 313, 317. Evans v. Harris, 337. Evans v. State Bank. 854, 857. Evansville Bank v. Britton, 557. Everet v. Watts, 305, 306, 876. Everhart v. Huntsville College, 178. Ewing V. Burhett, 509. F. Fales, Adm'x, v. Chicago, M. & St. P. Ey. Co., 101. Fallowes v. Williamson, 703. Farley v. Kittson, 389, 291, 304, 305, 354, 360, 373, 375. Farmers' Loan & Trust Co. v. Cen- tral E. Co., 795. Farmers' Loan & Trust Co. v. Kan- sas City, W. & N. W. E. Co., 59, 639. Farmers' Loan & Trust Co. v. Lake Street Elev. Co., 338, 650. Farmers' Loan & Trust Co. v. North- ern Pac. R Co., 61, 653, 654 Farmers' Loan & Trust Co. v. Rail- way Co., 633. Farmers' Loan & Trust Co. v. Sey- mour, 687, 700. Farmers' Loan & Trust Co., Peti- tioners, 658, 750, 751. Farmington v. Pillsbury, 311, 313, 313, 819, 330. Farrar v. Churchill, 514 850, 851. Farrar v. United States. 199. Farrington v. Chute, 345. Fawcett v. Fothergill, 664. Fawkes v. Pratt, 142, 336. Felch v. Hooker, 795. Fellows V. Fellows, 169, 257, 542. Fenn v. Holme, 148, 246, 539. Fenwick v. Sears' Adm'rs, 353. Fest V. Union Pao. E. Co., 550. Fidelity Insurance, Trust & Safe De- posit Co. V. Norfolk & W. E. Co., 550. Fidelle v. Evans, 708. Field V. Beaumont, 581. Field V. Holland, 794 Field V. Schieffelin, 269, 433, 433. Fife V. Clayton, 430. Finance Co. v. Charleston, C. & C. R Co., 683, 655, 665, 794, 801. TABLE OF CASES. xliii References are to pages. Finance Committee v. Warren, 791, 793. Finch V. Lord Winohelsea, 703, 704. Finchman v. Hobbs, 334. Findlay v. Hinde, 148. Finley v. Bank of United States, 68. Fire Insurance Ass'n v. Wickham, 845. First Nat. Bank v. Moore, 169, 257. First Nat. Bank of Cleveland v. Shedd, 59. Fischer v. Hayes, 791. Fischer v. Wilson, 433. Fish V. Miller, 181, 301, 356. Fish, Ex parte, 459. Fishback v. Western Union TeL C<*, 18, 144, 253, 810, 813, 838. Fisher v. Hayes, 447. Fisk V. Henarie, 832. Fisk V. Union Pac. R. Co., 550. Fitzgerald v. Buck, 347. Fitzgerald v. Falconbridge, 347. Fitzgerald & M. Const. Co. v. Fitz- gerald, 197, 199, 200, 315. Fitzhugh V. Croghan, 481. Flagg V. Mann, 387. Fletcher v. Fuller, 509, 512. Fletcher v. Morey, 11, 589. Fletcher v. Wilson, 439. Flint V. Rives, 116. Flock V. Holm, 593. Florentine v. Barton. 505. Florida v. Georgia, 660. Fogg V. Blair, 378. Folsom V. Evans, 606. Foote V. Cobb, 481. Foote V. Silsby, 666; 798, 807. Forbes v. Railroad Co., 64, 67, 665, 670. Forbes v. Whitlock, 61. Ford v. Douglass, 430. Forgay v. Conrad, 80, 741, 742, 802, 805. Fornshill v. Murray, 777. Forsyth v. Hammond, 848. Forsyth v. Pierson, 58, 194, 196. Forsythe v. Kimball, 519. Fosdick V. Schall, 620, 625, 626, 639, 630, 633, 651, 654, 664, 665, 669, 750, 752, 794, 801. Foster v. Cleveland, C, C. & St. L. Ry. Co., 322, 833. Foster v. Deacon, 680. Foster v. Donald, 721. Foster v. Foster, 405. Foster v. Goddard, 148. Foster v. Mansfield, C. & L. M. R. Co., 360. Foster v. Neilson, 343, 499. Foster v. Vassall, 330. Fourniquet v. Perkins, 737, 837. Fouvergne v. City of New Orleans, 485. Fowler v. Morrill, 508. Frances v. Hazelrig. 480. Francis v. Flynn, 148, 246. Frank v. Denver & R. G. Ry. Co., 650. Franklin v. Meyer, 803. Freeland v. Cocke, 807, 811, 812. Freeman v. Fairies, 383. Freeman v. Howe, 49, 109, 193, 328, 484, 551. Fremont v. Merced Min. Co., 811, 313. Fremont v. United States, 496, iJ7, 501. French v. Gapen, 665. French v. Griffin. 430. French v. Hoy, 174, 550. French v. Shotwell, 304. French v. Stewart, 35, 191, 334. Fresh v. Gilspn, 503, 582. Frost V. Spitiey, 347. Frow V. De La Vega, 210, 211, 235, 391. Fryrear v. Lawrence, 887. Fulkerson v. Holmes, 482. Fulton Bank v. Beach, 406. Furber v. Ferris, 794. Furman v. Nichol, 498. Furnace Co. v. Charleston, C. & C. R. Co., 669. G. Gableman v. Peoria Ry. Co., 643. Gadd V. Worrall, 543. Gage V. Kaufman, 156, 158. Gage V. Pumpelly, 79, 91. . Gaines v. Agnelly, 375, 377, 384. Gaines v. Chew, 169, 171, 357, 485. Gaines v. Dunn, 508. Gaines v. Fuentes, 553. Gaines v. Hennen, 486, 508. Gaines v. Mausseaux, 391, 356. Gaines v. New Orleans, 831. Gaines v. Nichols, 514. Gaines v. Rugg, 731, 768, 869. Gainsborough v. Gifford, 405. Galatian v. Erwin, 346. Galliher v. Caldwell, 358, 259. Gait V. Carter, 777. Galveston, H. & S. A. R. Co. v. Gon- zales, 301. Galveston R. Co. v. Cowdrey, 58, 633, 638, 658. Gamewell Fire Alarm Tel. Co. v. The Mayor, 129, 414. Garcia v. Lee, 343, 499. Gardner v. Collector, 501. Gardner v. , 598. Garlick v. Strong, 374 Garner v. Second Nat. Bank, 513, 550, 709. Garrett v. White, 786, 787. Garsed v. Beall, 781. Garstin v. Asplin, 581. xliv TABLE OF OASES. References are to pages. Oason V. Wadsworth, 446. Gass V. Stinson, 465, 799. Gates V. Goodloe, 850. Gelston v. Hoyt 499. Georgetown v. Alexandria Canal Co., 583. Georgia v. Brailsford, 540. Georgia v. Stanton, 340, 343. Germain v. Mason, 860. Getman v. Beardsley, 878. Giant Powder Co. v. Cal. Vigorit Powder Co., 276, 730, 739. Giant Powder Co. v. Safety Nitro Powder Co., 291. Gibert v. Colt, 593. Gibson v. Whitehead, 393. GiflEard v. Hart, 686. Gildersleeve v. New Mexico Mining Co., 258. Giles V. Baremore, 502. GilfiUan v. McKee, 860. Gillett V. Bobbins, 156. Gillette v. Bate Eefrigerating Co., T'SO. jniis Gfllis V. Downey, 730. Gillis V. Stinchfield, 835. Gilman v. Illinois & Miss. TeL Co., 632. Gilman v. Philadelphia, 583. Gilman v. Rives, 324. •Gilmer v. City of Grand Bapids, 317. Glasscock v. Hughes, 509. Glassington v. Thwaites, 366. Gleason v. Bisby, 593, 597. Glengal v. Frazer, 379. ■Glenn v. Dimmock, 783. Glenn v. Noonan, 783. Glover v. Tuck, 160, 161. ■Glynn v. Bank of England, 441, 443. Goddard v. Mailler, 98, 99. Godden v. Kimmell, 336. ■Godfrey v. Terry, 146, 353. Gold V. Canham, 731. Gold Washing & Water Co. v. Keyes, 840. Goldey v. Morniag News, 301. ■Gomme v. West, 661, 664 Gonzales v. Cunningham, 833. ■Goodhue v. Churchman, 225. Goodlet V. Railroad Co., 101. ■Goodman v. Niblack, 108, 196. Goodner v. Browning, 815. Goodrich v. Pendleton, 290, 391, 335, 373, 376. Goodwin v. Clark, 595. Goodwin v. Fox, 448. Goodwin v. Goodwin, 678. Goodyear v. Prov. Rubber Co., 715. Ooodyear Dental V. Co. v. Fulsom, 543. Gordon v. Bertram, 704. Gordon v. Gordon, 533. •Gordon v. Hobart, 795. Gordon v. Lewis, 831. Gormley v. Bunyan, 467, 493. Gormley v. Clark, 10, 13, 79, 91, 246, 247. Goss V. Tracy, 481. Gould. V. Day, 508. Grace v. Am. Cent. Ins. Co., 13. Gracie v. Palmer, 111, 199, 300, 315. Graeme v. Harris, 56. Grafifman v. Burgess, 176. Grafton v. Gumming, 337. Graham v. Chapman, 388. Graham v. Coape, 366. Graham v. Mason, 372. Graham v. Meyer, 333. Graham v. Tankersley, 369, 430. Graham, Ex parte, 653. Grand Chute v. Winegar, 549. Grant v. Grant, 593. Grant v. Phoenix Life Ins. Co., 68, 610, 650. Grant v. Stone, 631. Grant v. United States Bank, 388. Grant v. Van Schoonhoven, 254, 401. Grattan v. Appleton, 873. Graves v. Boyle, 515. Graves v. Corbin, 170. Gray v. Brignardello, 739. Gray v. Chicago, Iowa & N. R. Co., 541, 593. Grayson v. Virginia, 715. Great Falls Manufacturing Co. v. Worster, 558. Great Western Telegraph Co. v. Burn- ham, 742. Greeley v. Lowe, 108, 194, 196. Greeley v. Smith, 674. Green v. Bishop, 832, 823. Green v. Bogue, 338, 356, 357, 360, 430. Green v. Chicago, etc. R. Co., 869. Green v. Elbert. 167, 851 Green v. Hart, 387. Green v. Hayman, 325. Green v. Van Buskirk, 469. Greenaway v. Adams, 799. Greenhill v. Church, 345. Greenleaf v. Queen, 136, 383, 676, 698. Greenough v. Gaskell, 384. 'Greenwood v. Atkinson, 405. Gregory v. Boston Safe Deposit Co., 731, 867. Gregory v. Molesworth, 388. Gregory v. Pike, 193, 434, 435, 709. Gregory v. Stetson, 43, 43, 44, 736. Gregory v. Van Ee, 843. Grether v. Cornell's Ex'rs, 383. Griffith v. Bateman, 335. Grignon v. Astor, 505. Grigsby v. Purcell, 853. Grim v. Wheeler, 381. Grimstone v. Carter, 346. Grisar v. McDowell, 577. Griswold v. Hazard, 596, 597. TABLE OF CASES. xlv Eeferenoes are to pages. Grosholz V. Newman, 148. Grosvenor v. Cartwright, 389. Grover v. Faurot, 845. Grover & B. Sewing Machine Co. v. Radoliffe, 469. Groves v. Uorbin, 357. Grundy v. Masters, 7S0. Guaranty, Trust & Safe Deposit Co. V. Green Cove Springs & Melrose R. Co., 52, 196. Guilbert v. Howies, 707. Guion V. Liverpool, London, etc. Ins. Co., 753. Gumble v. Pitken, 109, 434 Gun V. Prior, 334. Gurnee y. Patrick County, 843. t Gwyn V. Lei bridge, 430. H. Habich v. Folger, 199. Hagan v. Walker, 68. Hager v. Thompson, 513. Hagerman v. Moran, 756. Haggarty v. Pittman, 608. Hagner v. Heyberger, 589. Hagood V. Southern, 576. Hahn v. Harwood, 395. Haines v. Beach, 68, 69. Haldei-man v. Halderman, 313. Hale V. Continental Life Ins. Co., 208. Hale V. Frost. 620, 635, 633, 654, 665, 669, 794, 801. Halkirk v. Halkirk. 708. Hall V. Cont. Life Ins. Co., 397. Hall V. De Cuir, 578. Hall V. Maltby, 533. Halliday v. MoDougall, 498. Halsey v. Cheney, 358. Halstead v. Buster, 13, 79, 91. Halstead v. Grinnan, 358, 260. Hamilton v. Walsh, 550. Hamilton v. Worsefold, 581. Hamlin v. Trust Co., 753. Hamlyn v. Lee, 661, 664. Hammersly v. Baker, 873. Hammond v. Hopkins, 358. Hampton v. MoConnell, 469. Hancock v. Holbrook, 144, 145, 353. Handford v. Storie, 707. Handsard v. Hardy, 713. Handy v. Cleveland & M. R Co., 651. Hangerford v, Sigerson, 549. Hankey v. Simpson, 344. Hanley v. Donoghue, 469, 470, 493, 495, 499. Hannay v. McEntire, 593. Hanrick v. Neely, 508. Hanrick v. Patrick, 13, 79, 480, 481, 860. Hanrier v. Moulton, 358. Hardee v. Wilson, 857, 858, 859. Hardeman v. Harris, 379, 384 Hardin v. Baird, 388. Hardin v. Boyd, 177, 408. Hardin v. Jordan, 13. Harding v. Handy, 47, 786, 815, 817, 823. Harding v. Harding, 774 Hardingham v. Nichols, 347. Hardman v. Ellames, 293, 301. Hard way v. Eliot Nat. Bank, 385. Hardwicke v. Vernon, 383. Hardy v. McClellan, 611. Hare v. Collins, 777. Hargrove v. Martin, 391. Harkness v. Hyde, 197, 200. Harkrader v. Wadley, 338, 551, 589. Harlan v. Howard, 483. Harpending v. Reformed Dutch Church, 309, 335, 376. Harper v. Norfork & W. R. Co., 106. Harris v. Fly, 346. Harris v. Harris, 834. Harris v. Ingledew, 347, 376. Harris v. Wall, 451. Harrison v. Morton, 834, 835. Harrison v. Nixon, 148, 178, 763. Harrison v. Perea, 873. Harrison v. Ridley, 698. Harrison v. Rowan, 786. Harson v. Gardiner, 581. Hart V. Meddlehurst, 347. Hart V. Rose, 160. Hart V. Sanson, 89, 753, 771. Hart Y. Ten Eyok, 387, 391, 433, 666, 796, 798. Harteau v. Harteau, 504. Harter v. Kernochan, 71. Hartog V. Memory, 319, 330, 321. Harvey v. Tyler, 505. Harwood v. Cincinnati & C. A. L. R. Co., 358. Harwood v. Railroad Co., 553. Haskin v. St. Louis & S. E. Ry. Co., 855. Hassam v. Day, 786, 787. Hat-Sweat Mfg.- Co. v. Waring, 709. Hatch V. Bancroft-Thompson Co., 383, 355 Hatch v. Dorr, 109, 193, 434 Hatch V. Spofford, 328, 830. Hawes v. Contra Costa Water Co., 63, 174 Hawley v. Bennett, 546. Hawley v. Wolverton, 116, 118, 119, 126, 149, 151, 159, 166, 233, 306, 370. Hawtry v. Trollop, 361, 376. Hayalle v. Texas & Pacific R Co., 857. Hayden v. Thompson, 169. Hayes v. Fischer, 831. Hays V. Pratt, 56. Hayward v. Andrews, 148, 246. Hayward v. Eliot Nat. Bank, 258. Hazard v. Durant, 390, 391, 373, 647. xlvi TABLE OF CASES. Eeferenoos are to pages. Hazleton Tripod-Boiler Co. v. Citi- zens' St. Ry. Co., 676, 677, 683, 684 Heartt v. Corning, 305, 354. Heath v. Railway Co., 174 Heine v. Levee Com'rs, 345, 539. Heirs of Wilson v. Insurance Co., 857. Hellam v. Graves, 338. Hemmenway v. Fisher, 756. Hemsley v. Myers, 550. Henderson v. Carbondale Coal & C. Co., 503, 503, 739. Henderson v. Griffin, 79. Hendricks v. Bradley, 432. Hendrickson v. Bradley, 713. Hendrickson v. Hinckley, 553. Hendy v. Golden State & Miners' Iron Works, 395. Henn v. Wash, 609. Hennessee v. Ford, 391, C93. Hennessey v. Woodveorth, 164 Henpert v. Benn, 344 Henry v. Bishop, 481. Henry v. Travelers' Ins. Co., 186. Hepburn v. Auld, 165. ■ Hepburn v. Dunlop. 162. Herman v. Fisher, 611. Herring v. Rogers, 483. Hershberger v. Blewett, 709. Hervy v. Smith. 537. Heussey v. Sheldon, 756. Hewitt V. Filbert, 853, 853, 854 Hewlet V. Cock, 483. Heyn v. Heyn, 801. Hicks V. Hogan, 803. Hicks V. Worcester, 555. Highland Ave. R. Co. v. Equipment Co., 868. Higinbotham v. Burnet, 375t Hilohens v. Lander, 334. Hill V. Exchange Bank, 557. Hill V. Mendenhall, 199, 200. Hill V. Railroad Co., 857. Hill V. Ryan Grocexy Co., 430. Hillary v. Waller, 509. Hilton v. Guyot, 470, 471. Hilton V. Morgan, 787. Hinchman v. Kelley, 260, 336. Hinckley v. Gilman, etc. R. Co., 753. Hinckley v. Railroad Co., 638, 64a Hind V. Case, 429. Hipp V. Babin, 12, 148, 246. Hitz, Ex parte, 501. Hobbs V. M. & C. R. Co., 499. Hodgson V. Bowerbank, 146. Hogan V. Kurtz, 486. Hogan V. Walker, 54, 55. Hohorst V. Hamburg-American Packet Co., 843. Hohorst, Re, 104, 193. Holden v. Trust Co., 755. Holland v. Challen, 347. Hollingsworth v. Barbour, 89, 771. HoUingsworth v. Virginia, 574 Hollis V. Brierfleld Coal & Iron Co., 868. Holman v. Norfolk Bank, 156. Holt V. Indiana Mfg. Co., 841, Hood V. Inman, 165, 166. Hooe V. Jamieson, 100. Hooe V. Werner, 100. Hooper v. Scheimer, 246. Hopkins v. Canal Proprietors, 608. Hopkins v. Lee, 833, 463. Hopper v. Hopper, 373. • Horn V. Detroit Dry Dock Co, 430. Horner v. United States, 840, 841. Hornthall v. Keary, 146. 253. Hornthall v. The Collector, 873. Horsburg v. Baker, 136, 383. Horton v. Critchfield, 470. Hostetter Co. v. E. G. Lyons Co., 389, 392 373. Hough V.' Williams, 799. Houlditch V. Marquis of Donegal, 533. House V. Mullen, 73. 148, 333, 339. Hovey v. Elliott, 213, 333, 409. Hovey v. McDonald, 316, 323, 649. Howard v. Railway Co.. 770. Howard v. Schwedes, 704 Howard v. Snelling, 481. Howden v. Rogers, 593. Howell V. Western R Co.. 746, 749. Howes V.Victoria Copper Minirg Co., 736. Howland v. Edmonds. 160. Hewlett V. Wilbraham, 403. Hoxie V. Carr, 676. Hoyden v. Thompson, 357. Hoyt V. Russell, 499. Hubbard v. Soby, 833. Hudson V. Guestier, 868. Hudson V. Puett, 481. Hudson V. Randolph, 377. Huet V. Lord Say & Seal, 698. Huggins V. York Building Co., 703. Hughes V. Blake, 309, 338, 341, 360, 376, 385. Hughes V. Bloomer, 405. Hughes V. Edwards, 336. Hughes V. Garth, 347. Hughes V. People, 819. Hughes V. United States, 383, 338, 339, 714 Huidekoper v. Locomotive Works, 654 Humbert v. Trinity Church, 360, 361. Humes v. Scruggs, 24, 431. Humiston v. Stainthorp, 741. Humphrey v. Baker, 869. Humphreys v. Humphreys, 678. Hunn V. Norton, 819. Hunt V. Danford, 333. Hunt V. Priest, 661, 664. Hunt V. Rousmaniere, 176, 180, 272, 383, 364 408, 518, 678. Hunt V. Stephenson, 388. TABLE OF CASES. xlvii References are to pages. Huntington v. Attrill, 470. Huntington v. Laidley, 277, 303, 838. Huntington v. Palmer, 174, Huntley v. Whittier, 503. Hurd V. Case, 369. Kurd V. Everett, 174, 185. Hurdit V. Calladon, 334. Hurt V. Hollingsworth, 36. Hutchins v. King, 581. Hutchinson v. Reed, 187, 366. I. & G. N. Ry. Co. V. McRae, 481. Idaho & Oregon Land Co. v. Brad- bury, 780. Ilett V. Collins, 360. Illinois C. R Co. v. Brown, 843. Imperial Refining Co. v. Wyman, 313, 317, 331. Improvement Co. v. Munson, 516. Indiana, etc. R. Co. v. Liverpool, etc. Ins. Co., 433. Indianapolis Gas Co. v. City of In- dianapolis, 131, 135. Ingle V. Jones, 447. Inglee v. Cooledge, 873. Inglehart v. Stansbury, 857, 858, 859. Insurance Co. v. Bailey, 549. Insurance Co. v. Brune, 326. Insurance Co. v. Cammet, 70. Insurance Co. v. Harris, 469. Insurance Co. v. Huchbergers, 756. Insurance Co. v. Myer, 388. Insurance Co. of North America v. Svendsen, 175, 179. Interior Const. & Imp. Co. v. Gibney, 111, 200, 315, 838. International & Great Northern By. Co. V. Rathbone, 480. Interstate Commerce Commission v. Brimson, 591. Interstate Commerce Commission v. Cincinnati, N. O. & T. P. B. Co., 245. Interstate Land Co. v. Maxwell Land Co., 278. Int. St. Com. Comm'n v. Atchison, etc. R Co., 833. Iowa County v. Mineral Point R Co., 156, 158. Irving V. De Kay, 423. Irwin V. San Francisco Sav. Union, 530. Ives V. Medcalf, 517. Iveson V. Harris, 542. Jackson v. Ashton, 146, 148, 253. Jackson v. Chamberlain, 481. Jackson v. Gager, 481. Jackson v. Grant, 369, 430. Jackson v. Kingsley, 483. Jackson v. Laroway, 483. Jackson v. Luquere, 482. Jackson v. Parish, 405. Jackson v. Petrie. 593. Jackson v. Rowe, 347. Jackson v. Twentyman, 146. Jackson v. Waldron, 480, 481. Jacob V. Hall, 411. Jacobs v. George, 854. Jacobs V. Richard, 430. Jared v. Saunders, 347, 376. Jarvis v. Palmer, 375. Jaunce v. Thome, 484. iJay V. Adelbert College, 843. Jenkins v. Banning, 756. Jenkins v. Eldredge, 730, 731, 799. Jenkins v. Jenkins, 608. Jenks V. Quidnick Co., 12. Jennings v. Merton College, 405. Jerome v. MoCarter, 68, 658. Jerrard v. Saunders, 379. Jersey City v. City of Hudson, 583. Jessup V. Illinois Cent. R Co., 437. Jesup V. Hill, 597. Jesup V. Wabash, St. L. & P. Ry. Co., 792. Jesus College v. Gibbs, 372. Jewell V. Knight, 845, 847. Joeffrey v. Brown, 833. Johnson v. Aston, 720. Johnson v. Butler, 431. Johnson v. Christian, 1, 353, 553. Johnson v. Day, 198. Johnson v. Everett, 745, 803. Johnson v. Harmon, 781, 785. Johnson v. Keith, 743. Johnson v. Powers, 56. Johnson v. Risk, 835. Johnson v. Stewart, 834. Johnson v. Vail, 156. Johnson v. Vance, 156. Johnson v. Waters, 199, 553, 837. Johnson R S. Co. v. Union S. & S. Co., 369, 429, 434, 435. Johnson Steel Street Rail Co. v. North Branch Street Co., 456. Johnston v. Standard Min. Co., 360. Jones V. Alephsin, 593. Jones V. Anderson, 49, 193, 434. Jones V. Andrews, 109, 199, 300. Jones v. Bassett, 681. Jones V. Brittan, 428. Jones V. Douglass, 803. Jones V. Jones, 686. Jones V. Keen, 832. Jones V. Lamar, 823. Jones V. League, 311, 313, 313, 317. Jones V. Pugh, 384. Jones V. Sampson, 593. Jones V. SchoU, 611, 613. Jones V. Thomas, 347, 799. xlviii TABLE OF CASES. References are to pages. Jones V. Tuberville, 388. Jones V. United States, 499, 501. Jones, Ex parte, 103. Jones & Laughlin v. Sands, 753. Joseph V. Tuokey, 326. Joy V. St. Louis, 623, 635, 664. Junction R. R. Co. v. Bank of Ash- land, 498, 495. Juneau Bank v. McSpedan, 197. K. Kable v. Mitchell, 774 Kamm v. Stark, 194. Kamshire v. Young, 345, 376. Kane v. Bloodgood, 261, 384. Kane v. Paul, 834, 335. Kane v. Whittick, 745. Kauffman v. Kennedy, 197. Kaukauna Water Power Co. v. Green Bay & M. Canal Co., 13. Kay V. Marshall, 393. Keane v. McDonough, 499. Keasby, Be, v. Mattison Co., 99, 100, 101, 104, 105, 111, 146, 353. Keely v. Sanders, 506. Keenland v. Luce, 59. Keller v. Oceana, 156. Kelley v. Boettcher, 130, 167, 169, 357. Kelley v. Eckford, 185. Kelsall V. Bennet, 347. Kemp V. Kennedy, 505. Kempe's Lessees v. Kennedy, 3. Kempner v. Churchill, 514. Kendall v. Creighton, 54, 55. Kender v. Jones, 581. Kendigv. Dean, 47, 73, 355, 333, 339. Kennedy v. Bank of Georgia, 370, 350, 676, 766. Kennedy v. Creswell, 361, 376. Kennedy v. St. Paul & P. Ry. Co., 636, 638, 639, 630, 631, 636, 658. Kennessley v. Simpson, 334. KMinett V. Chambers, 499. Kent V. Iron Co., 59. Kent V. Kent, 706. Keokuk & W. R. Co. v. State of Wis- consin, 341, 468. Kerr v. Moon, 56, 79, 91. Kerr v. South Park Com'rs, 786. Kerrison v. Stewart, 58, 54, 59. Kershaw v. Thompson, 768, 771, 774, 775. Keyser v. Rice, 553. Keystone Iron Co. v. Martin, 740, 741, 843. Kilbourn v. State Savings Institu- tion, 756. Kilbourn v. Sunderland, 13, 148, 346. Killian v. Ebbinghaus, 13, 148, 346, 869. Kilpatrick v. Love, 387, 798. Kimberly v. Arms, 793, 794, 795, 869. Kimberly v. Sells, 375. King V. Bryant, 891. King V. Donnelley, 609. King V. Gallun, 493. King V. Hamilton, 16<1. King V. Ray, 381. King V. Thompson, 164. King Iron Bridge & Mfg. Co. v. County of Otoe, 144, 178, 353. Kingman v. Western Mfg. Co., 843. Kingsbury v. Buokner, 369, 439, 754. Kinsey v. Kinsey, 388. Kirby v. Tallmadge, 347, 516. Kirby v. Taylor, 359. Kirk V. Du Bois, 873. Kirk V. Hamilton, 549. Kirkman v. Andrews, 836. Kirkman v. Hamilton. 337. Kirwan v. Murphy, 849, 868. Kittridge v. Claremont Bank, 130, 379, 414 Knapp V. Abell, 470. Kneeland v. American Loan & Trust Co., 633, 655, 751. Kneeland v. Bass Foundry & Maoh. Works, 633, 655. Kneeland v. Luce, 658. Knickerbocker v. De Freest, 403. Knickerbocker v. Harris, 387. Knight V. Bee, 335. Knowles v. Gas Light & Coke Co., 469. Knox V. Summers, l99. Knox Co. V. Harsh man, 149. Koehler v. Black River Falls Iron Co., 61. Koehler, Ex parte, 650. Kohn V. MoNulta, 784. Kountz V. Omaha Hotel Co., 610, 633. Krueger v. Ferry, 369. 439. Kuppendorf v. Hyde, 664, 665. Kuypers v. Reformed Dutch Church, 379. L. , Lacassangue v. Chaupis, 774 Lackawana Co. v. Farmers' Loan & Trust Co., 665, 669, 794, 801. Lacon v. Briggs, 334. Lacon v. Lacoh, 334 Lady Stowell v. Cole, 706. La Fayette Co. v. Neely, 149. Lafayette Ins. Co. v. French, 146. Laight V. Morgan, 143, 375. Lamar v. Micou, 493. Lamb v. Ewing, 109, 194 434 Lambert v. Barrett, 843. Landes v. Brant, 347. Landsdown v. Elderton, 774. Langdale v. Langdale, 708. Langdon v. Goddard, 148, 167. TABLE OF CASES. xlix Eeferences are to pages. Xangton v, Higgs, 721. Lansdale v. Smith, 258. Lane v. Newdigate, 537. Lapeyre v. United States, 500, 516. Larkin v. Mann, 401. Lamed v. Griffin, 197. Lardner v. Ogden, 437. Lashley v. Hogg, 708. Last Chance Mining Co. v. Tyler Mining Co., 341, 468. Latta Y. Kilbourn, 806, 827. Lau Ow Bew v. United States, 833, 836, 841, 847. Lau Ow Bew, Petitioner, 847. La Vega v. Lapsley, 30, 415, 416. Law V. Ford, 609. Lawber v. Bangs, 163, 168. Lawrence v. Greenwich Fire Ins. Co., 609. Lawrence v. Lawrence, 387. Lawrence v. Remington, 328. Lawrence v. Richmond, 739. Lazus V. Lewis, 481. Lea V. Polli County Copper Co., 347. Leacraf t v. Dempry, 237, 228, 276, 303. Leak v. Leak, 593. League v. Egery, 79. Leather Mfg. Nat. Bank v. Cooper, 103. Leather Mf rs. Kat. Bank y. Morgan, 344. Lee V. Beatty, 777. Lee V. Dodge, 164. ' Lee V. Macauley, 730. Xeech v. Bailey, 373. Leeds v. Insurance Co., 388, 389. Lees V. United States, 137, 384 Leggett V. Postley, 136, 383. Le Guen v. Gouverneur, 777, 783, 783. Xehigh Co., In re, 838. Lennon, In re, 537, 538, 567, 590, 591, 833, 841. Lenox v. Notrebe, 388. Leo V. Lambert, 597. Leroy v. Veeder, 375, Levesey v. Wilson, 405. Lewis V. Baird, 356. Lewis V. Cooks, 12, 245. Lewis V. Darling, 73, 187. Lewis V. Hawkins, 261. Lewis V. King, 720. Lewis V. McFarland, 57. Lewis V. Shainwald, 715. Lewis V. United States, 73. Lewisberg Bank v. Sheffey, 738, 743. Lichtenaver v.' Cheney, 179. Lichtenstein v. Dial, 639. Lincoln v. Battell, 446. Lincoln v. French, 502. Lincoln v. Worcester, 555. Lingan v. Henderson, 391, Lingwood v. Croucher, 345. Lippincott v. Mitchell, 79, 91. Litchfield v. Ballou, 148, 846. Litchfield v. Webster County, 576. Liverpool Steam Co. v. Phenix Ins. Co., 498. Livingston v. Harris, 136, 388. Livingston v. JefCerson, 10, 80, 83, 87, 91, 353. Livingston v. Livingston, 143, 581. Livingston v. Story, 11, 327, 328, 274, 275, 376, 392, 302, 311, 313, 369. Livingston v. Van Ingen, 8. Lloyd v. Brewster, 171. Lloyd V. Matthews, 493, 499. Lockhart v. Horne, 210. Logan V. Patrick, 49, 193. London Assurance Co. v. East India Co., 364, 415. Lonergan v. Buford, 530. Longworth v. Taylor, 191. Lonsdale v. Littledale, 345, 376. Lonsdale Co. v. Moise, 795. Lord Abergavenny v. Powell, 799. Lord Pelham v. Duchess of Newcas- tle, 661, 664. Lord Portarlington v. Soulby, 553. Lord Stowell v. Cole, 706. Lorillard v. Standard Oil Co., 715. Lotchwell V. Foster, 334. Loud V. Sergeant, 291, 373. Lougan v. Bowen, 653. Louisiana v. Jumel, 245, 576. Louisville & Nashville R. Ca v. Palmes, 278. Louisville, C. & C. R. Co. v. Letson, 146. Louisville Ry. Co. v. Pope, 857. Loveridge v. Lamed, 873. Low v. Burron, 334. Lowenstein v. Glidewell, 434,435,437, 714. Lowry v. Few, 346. Lucas V. Hickman, 593. Luce V. Graham, 179, 188. Ludlow V. Maddook, 254, 547. Lund V. Skane's Enskelda Bank, 269, 429. Lupton V. Johnson, 135. Lynde v. Columbus C. & I. C. Ry. Co., 89, 771. Lyon V. Alley, 553. Lyon V. Perin & Goflf Mfg. Co., 338, 340. Lyon V. Tallmadge, 175. M. Machinery Co. v. Brown Folding Ma- chine Co., 239. Maokall v. Casilear, 258. Magniao v. Thompson, 148, 246. Maguire v. Allen. 610, 612. Maitland v. Wilson, 347, 359, 415. TABLE OF CASES. References are to pages. Malcomb v. Montgomery, 613. Mallock V. Galton, 754. Mallow V. Hinde, 39, 44, 726. Man V. Ward, 441. Mandeville v. Riddle, 337. Manhattan Co. v. Evertson, 346. Manley v. Mickle, 414. Manning v. Lechmere. 441, 443. Manning v. Manning, 819. Mansell v. Feeney, 334. Mansfield, C. & L. M. Ry. Co. v. Swan, 144, 145, 252, 319. 320. 872. Marbury v. Madison, 493. Mardis v. Sohaokeford, 481. Marine Ins. Co. v. Hodgson, 553. Marine Ins. Co. v. Young, 340. Markle v. Markle, 403. Marsh v. Whitmore, 258. Marshall v. Bait. & Ohio R. Co., 146. Marshall v. City of Vicksburg, 276. Marshall v. Holmes, 553. Marshall v. Thompson, 777. Marsteller v. McLean, 25, 183, 357. Martin v. Van Schank, 609. Maryland v. Baldwin, 71. Mason v. Crosby, 795. Mason v. Hartford, Providence & Fishkill R. Co., 420. Mason v. Mason, 777. Mason v. McGirr, 430. Massachusetts & Southern Const. Co. V. Cane Creek Twp., 312, 317. Massachusetts Benefit Ass'n v. Miles, 755. Massachusetts Mut. Life Ins. Co. v. Chicago & A. R. Co., 330. Massie v. Watts, 80, 89, 553, 768, 771. Masterson v. Herndon, 857, 858, 859. Matthews v. Puffer, 197. Maxwell v. Kennedy, 260, 310, 336. Maxwell v. Stewart, 199, 200, 469, 473. Maxwell Land Grant Case, 506. May V. Iron Co., 67. Maynard v. Bond, 611. Maynard v. Hecht, 838, 845. Mays V. Rose, 606, 613. Mays V. Wherry. 611. Mazarredo v. Maitland, 379. McArthur v. Scott, 54. M'Broom v. Sommerville, 713. McCabe v. Cooney, 374 McCabe v. Matthews, 164. McCaskey v. Barr, 45, 130, 134. McCloskey v. Barr, 289, 291, 301, 370, 373. McClosky V. Du Bois, 730. MoClung V. Ross, 509. McClure v. Adams, 68. McCuUum V. Eager, 831. McConihay v. Wright, 12, 148, 246, 539. McConihe v. Knox County, 743. McConville v. Gilmour, 5, McCormick v. Chamberlin, 131. McCormiok v. SuUivant, 3, 79, 91. McCormick Harvesting Machine Co. V. "Walthers, 99, 100, 101. McCosker v. Brady, 171. 609, 653. McCoy v. Rhodes, 387, 391. McDonough v. O'Neil, 516. McElmoyle v. Cohen, 468, 469. MoFerran v. Taylor, 786. McGarrahan v. Mini'ng Co., 475. McGoon V. Scales, 79, 91, 505. McGourkey v. Toledo & Ohio Cent. Ry. Co., 806. McGown V. Yerks, 68, 69. McGregor v. Wait, 483. McHenry v. Alford, 845. Mcintosh V. Ogline. 553. McKenna v. Fisk, 80. 82, 87, 91, 334. McKenzie v. Baldridge, 156. McKim V. Thompson, 720. McKnight v. Taylor, 336. McLaughlin v. Br.nk of Potomac, 55, 777. McLaughlin v. People's Ry. Co., 336. McLaughlin v. Railway Co., 260. McLean v. Clapp, 347. M'Leod V. City of New Albany, 665, 669, 670, 794, 801. McLish V. Roflf, 833, 833, 837, 843. MoMicken v. Perin, 728, 732, 766, 831. McNamara v. Dwyer, 597. McNitt V. Turner. 505. McNuIta V. Lochridge, 640, 643. McPhaul V. Lapsley, 532. McPherson v. Rathbone, 481. McQuade v. Trenton, 835. McVeigh v. United States, 217. Mead v. Lord Orrery, 631. Mead v. Meritt, 553. Meagher v. Minnesota Thresher Mfg. Co., 742. Mechanics' Bank v. Levy, 115, 118, 119, 126, 132, 149, 151. 159, 233, 306, 370. Medsker v. Bonebrake, 794. Meier v. Kansas Pac. Ry. Co., 630. Meigs V. McClung, 577. Mellen v. Moline Malleable Iron Works, 108, 196, 774. Memphis v. Brown, 732. Memphis City v. Dean, 326. Menard v. Goggan, 178. Mendenhall v. Hall, 68. Menendez v. Holt. 567. Mercantile Nat. Bank v. Carpenter, 360. Mercantile Trust Co. v. Missouri, K. & T. Ry. Co., 626. Merchants' & Manufacturers' Bank V. Kent, 611. Meritt v. Brown, 391. Merrill v. Town of Montioello, 260. Merriwether v. Mellish, 698, 701. TABLE OF CASES. References are to pages. Metoalf V. Watertown, 13, 144, 145, 178, 252, 323. Metcalf V. Williams, 324. Methodist Episcopal Church v. Jaques, 120, 124, 132, 379, 381, 815, 821. Metropolitan Nat. Bank v. St. Louis Dispatch Co.. 334 Mexican C. R. Co. v. Pinkney, 193, 201. Meyer v. Kuhn, 52, 190. Matterson v. Howard, 225. Michigan Ins. Bank v. Eldred, 192. Miokle V. Stuart, 776. Micklethwaite v. Moore, 431. Middleton v. Bankers' & Merchants' Tel. Co., 792. Middleton v. McGrew, 79, 91. Miles V. Caldwell, 341, Miller v. Clark, 872. Miller v. Gregory, 430. Miller v. Mclntyre, 174, 336. Miller v. Miller, 820, 835. Miller v. Whittaker, 181. Miller-Magee Co. v. Carpenter, 5. Milligan v. Milledge, 333. Mills V. Dennis, 333, 754. Mills V. Duryee, 469, 470. Mills V. Gore, 388. Mills V. Green, 495. Mills V. Hanson, 730. Mills V. Hoag, 683, 745. Mills V. Knapp, 56. Mills V. Pittman, 411, 421, 432. Miltenberger v. Logansport Ry. Co., 612, 630, 635, 636, 633, 654, 655, 658. Milwaukee v. KoeflSer, 554. Milwaukee, etc. R. Co. v. Soutter, 109, 110, 194, 434, 774 Milwaukee R. Co., Ex parte, 851. Miner v. Markham, 196, 197. Minor v. Stewart, 391, 393. Minor v. Tillotson, 485. Minot V. Mastin, 753. Minter v. Crommelin, 506. Mississippi & Missouri R. Co. v. Ward, 583. Missouri Pao. Ry. Co. v. Texas & P. Ry. Co., 650, 651. Mitchell V. Bunch, 89, 593, 595, 768, 771. Mitchell V. Dors, 581. Mitchell V. Overton, 739. Mitchell V. Harmony, 577. Mitchell V. United States, 508 Moat V. Holbein, 535, 545. Mobile & Ohio Ry. Co. v. Davis, 643. MoUan v. Torrance, 312, 317, 318. Mollock v. Galton, 338. Montesquieu v. Sandys, 533. Montgomery v. Montgomery, 403. Moore v. Hawkins, 149. Moore v. Hilton, 737. Moore v. Huntington, 436. Moore v. Mayhow, 347. Moore v. Robbins, 743. Moore v. Welsh Copper Co., 330. Moran v. Sturges, 338, 650. More V. Steinbach, 158. Morgan v. Beloit, 338. Morgan v. Corliss, 388. Morgan v. Curtenius, 79. Morgan v. Morgan, 165. Morgan v. Nunn, 589. Morgan v. Smith, 269, 430. Morgan v. Sturges, 551. Morgan v. Tipton, 430. Morgan's Co. v. Texas Cent. Ry. Co., » 269, 429, 433, 433, 683, 654, 655. morony v. Vincent, 388. Morris v. Gilmer, 319, 330. Morris v. Parker, 381. Morris v. Taylor, 795. Morris & Essex R. Co. v. Prudden, 108, 583. Morse v. Royal, 388. Mortlock V. Leathers, 730. Mosely v. Armstrong, 388. Moses V. Nat. Bank o£ Ijawrence County, 337. Mosher v. St. Louis, L M. & S. R. Co., 378. Mosier v. Norton, 803. Mostyn v. Fabrigas, 85. Moulton v. Reid, 589. Mountfort, Ex parte, 611. Mower v. Fletcher, 741. Mowry v. Chase, 470. Mugler V. Kansas, 591. Muir V. Trustees of the Leake and Watts Orphan House, 361. Mulcahey v. Lake Erie & W. R. Co., 453. Mulholland v. Hendrick, 533. Muller V. Dows, 89, 90, 101, 771. MuUins V. Simmonds, 405. Mumma v. Potomac Co.. 674. Munsford v. Murray. 819. Munson v. The Mayor, 730. Murdock v. Memphis, 834, 836. Murdock's Case, 405. Murray v. Coster, 262. Murrough v. French, 653. Mussina v. Cavazos, 851, 857, 858. Mutual Life Ins. Co. v.Harris, 338,468. Mutual Life Ins. Co. v. Spratley, 193. Nabob of Carnatic v. East India Co., 340. Napier v. Elam, 391. Nashua & Lowell R. Corp. v. Boston & Lowell R. Corp., 313, 317, 363. Nashville & D. R. R. Co. v. Orr, 61. National Ace. Soc. v. Spiro, 301. lii TABLE or CASES. Beferenoes are to pages. National Bank v. Carpenter, 180, 282. National Bank v. Colby, 674. National Bank v. Insurance Co., 354. National Bank v. Kimball, 554. National Bank v. Smith, 842. National Bank of Chemung v. El- mira, 555. National Cash-Register Co. v. Leland, 453. National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 129, 414 National Masonic Ace. Ass'n v. Sparks, 332, 323. National Mfg. Co. v. Meyers, 372. Nations V. Johnson, 505. Neal V. Foster, 483. Neale v. Neale, 177, 178, 408, 678. Nedby v. Nedby, 235. Nelson v. Cook, 198. Nelson v. Eaton, 181. Nelson v. Foster, 328. Nelson v. Hill, 171, 257. Nelson v. Robinson, 549. Nelson v. United States, 446, 462, 468. Nepeau v. Doe dem. Knight, 507. Nesbit V. Independent District of Riverside, 341, 468. Neve V. Weston, 331. Neves v. Scott, 11, 20, 539. Newberry v. Blatchford, 269, 430. Newby v. Oregon Cent. Ry. Co., 31, 291, 293, 354, 856. Newland v. Rogers, 169, 257. Newman v. Moody, 732. Newman v. Supervisors, 555. Newman v. Wallis, 334 New England Ins. Co. v. Detroit & C. Steam Nav. Co., 200. New Hampshire v. Louisiana, 574, 575, 676. New Orleans v. Benjamine, 841. New Orleans v. Citizens' Bank, 340. New Orleans v. Gaines, 739. New Orleans v. Louisiana Construc- tion Co., 10. New York v. Connecticut, 240. New York v. Louisiana, 574, 575, 576. New York & Maryland Line R. Co. V. Winans, 500. New York Fourth Nat. Bank v. Francklyn, 493. New York Guaranty & Ind. Co. v. Memphis Water Co., 12, 148, 346. New York Guaranty & Indemnity Co. V. Tacoma Ry. & Motor Co., 655. New York Printing & Dyeing Es- tablishment V. Fitch, 581. New York Security & Trust Co. v. Lincoln St. Ry. Co., 679. Nice V. Purcell, 777. Nickerson v. Niokerson, 164 Nightengale v. Oregon Central R. Co., 143. Nix V. Hedden, 501. Noonan v. Bradley, 56, 245, 253. Noonan v. Lee, 11, 539. Norman v. Huddleston, 430. Norris v. Hoggin, 358. North Chicago Rolling Mill Co. v. St. Louis Ore & S. Co., 552. Northern Indiana R. Co. v. Michigan Central R. Co., 76, 79, 80, 83, 89, 91. Northern Pac. R. Co. v. Amato, 103. Northern Pac. R Co. v. Clark, 554 Northern Pac. R. Co. v. Paine, 10. Northern Pac. R. Co. v. Walker, 169, 357. Northwestern Fuel Co. v. Brock, 870. Northwestern Union Packet Co. v. Clough, 334 Norton v. Brownsville, 857. Norton, Ex parte, 741, 743. Noyes v. Willard, 289, 291, 293, 373. Nurse v. Bunn, 391. Nussbaum v. Stein, 613. Nyburg v. Pearce, 431. o. O'Conner v. Cook, 777, Oelrichs v. Spain, 549. Oelrichs v. Williams, 148, 346. Offley V. Morgan, 373. Ogden V. Larrabee, 819. O'Hara v. McConnell, 54, 193, 306, 211, 312, 328, 335, 326, 401, 403, 754 Ohio V. Frank, 755. Ohio & Miss. R. Co. v. Wheeler, 312, 317. Ohio Cent. R. Co. v. Cent. Trust Co., 309, 310, 311, 335, 236. Oil Co. V. Van Etten, 344 Olcott V. Bynum, 79, 91. Oliver v. Piatt, 171, 361. O'Neil V. Hamill, 799. Onderdonk v. Gray, 430. Orcutt V. Orms, 356, 359, 415. Oregon & Transcontinental Co. v. Northern Pac. R. Co., 677. Oregon S. L. «& U. N. R. Co. v. Skot- tow, 147. Orleans, The, v. Phoebus, 10, 353. Ormund v. Hutchinson, 391. O'Reilly v. Edrington, 855. Orr V. Morris, 483. Osborn v. Bank of the United States, 47, 102, 553, 576, 840. Osborn v. Hyer, 610. Osterman v. Baldwin, 337. Owden v. Campbell, 254 Owings V. Hull, 493. Owings V. Kincannon, 857. Ozark Land Co. v. Leonard, 234, 372. TABLE OF OASES. liii Beferences are to pages. Pacific Postal Cable Co. v. Fleischner, 756. Pacific R Co. V. Cutting, 269. Pacific Eailroad of Missouri v. Mis- souri Pacific R. Co., 109, 434. Pacific Eailroad Removal Cases, 103. Page V. MafEet, 589. Paine v. Central Vt. R Co., 337. Panama R Co. v. Napier Shipping Co., 848. Paquete, The, 833, 833. Parcels v. Johnson, 741. Parker v. Bird, 13. Parker v. Dacres, 13, 79, 91. , Parker v. Fairlie, 233. Parker v. Hotchkiss, 197. Parker v. Judges, 541. Parker v. Ormsby, 147. Parker v.Winnipiseogee Lake Cotton & Woolen Co., 148, 346, 583. Parkhurst v. Kinsman, 676, 677. Parks V. Booth, 393. Parry v. Ashley, 731. Parsons v. Robinson, 843. Parteriche v. Pawlet, 387. Partridge v. Haycroft, 179. Patch V. White, 531, 531. Patterson v. Ackerson, 785. Patterson v. Gaines, 139, 389. Patterson v. Slaughter, 405. Pattison v. Hull, 430. Patton V. Taylor, 149. Payne v. Collier, 730. Payne t. Hook, 54, 55, 148, 246. Payne v. Niles, 849. Payne v. Treadwell, 156. Peachin v. Twycross, 373. Pearce v. Hooper, 483. Pearce v. Rice, 356, 357, 358, 860, 361, 430. Pearne v. Lisle, 593. Pearse v. Green, 383. Peck V. Jenness, 338, 551. Peddock v. Brown, 798. Peer v. Cookerow, 698, 705. Peik V. Chicago & Northwestern Ey. Co., 580. Pelton V. National Bank, 557. Pelton V. Platner, 470. Pember v. Mathers, 385. Pemberton v. Pemberton, 786, 787. Pemberton v. Topham, 707. Pendleton v. Evans, 306, 313. Penn v. Lord Baltimore, 89, 240, 311, 553, 768, 771. Penn Mut. Life Ins. Co. v. City of Austin, 358, 359, 360. Pennie v. Eeis, 378. Pennington v. Gibson, 498. Pennington v. Lord Muncaster, 831. Pennoyer v. McConnaughy, 575, 576. Pennoyer v. Neff, 58, 76, 193, 470. 553. Pennsylvania Co. v. Eailway Co., 873. Pennsylvania R Co. v. St. Louis R Co., 312, 317. People V. New York, 156. People V. Norton, 613. People V. Weaver, 557. Peper v. Fordyce, 1. Pepper v. Dunlap, 743. Perkins v. Fourniquet, 737, 740, 755, 756. Perkins v. Hendrix, 36. Perkins v. Nichols, 389. Peters v. Bain, 13, 79, 91. Petri V. Commercial National Bank of Chicago, 103. Petty v. Hannum, 391. Pewabio Min. Co. v. Mason, 773, 773. Phelps V. Garrow, 356. Phelps V. McDonald, 89, 553, 771. Phelps V. Sproule, 345. Phenix v. Ingram, 388. Philadelphia & Trenton R Co. v. Stimpson, 506, 533. Philadelphia & Wilmington R. Co. v. Howard, 163. Phillips v. Buck, 321. Phillips V. Hallister, 391. Phillips and Colby Construction Co. V. Seymour, 164. Phoenix Ins. Co. v. Wulf, 198. Phosphate Co. v. Brown, 174. Piatt V. Oliver, 70. Piatt v. Vattier, 35, 183, 360, 361, 336, 357. Pierce v. Brown, 379, 386, 411, 421, 422. Pierce v. Indseth, 498. Pickett V. Ferguson, 553. Pioquet v. Swan, 653. Pilkington v. Wignell, 678. Pitt V. Hill, 338. Pleasants v. Southern Ry. Co., 792. Poindexter v. Greenhow, 575, 576, 578. Polk V. Gallant, 347. Polk V. Wendal, 506. Pollak V. Brush Electric Ass'n, 163. Pollard V. Dwight, 199, 315. Poor V. Carlton, 548. Poor V. Clark, 40. Pope Mfg. Co. V. Gormully, 164. Porter v. Sabin, 603, 605, 641, 646. Porter v. Spencer, 593. Porter Land & Water Co. v. Baskin, 197. Post v. Supervisors, 473, 501. Postal Tel. Cable Co. v. Adams. 333. Postal TeL Cable Co. v. United States, 147. Potter, Ex'r, v. Third National Bank of Chicago. 448. Potts, In re, 731, 768. liv TABLE OF CASES. References are to pages. Poultney v. City of Lafayette, 20. Powell V. Cleaver, 515. Power V. Reader, 798. Powers V. Cheasapeake & O. E. Co. 843. Powys V. Mansfield, 533. Pratt V. Law, 783. Prentice v. Pickersgill, 756. Prentice v. Storage Co., 169, S57. Prentiss v. Brennan, 146. President of Bowdoin College v. Mer- ritt, 550. Preston v. Finley, 854. Preston v. Preston, 164. Prevost V. Gratz, 261, 386. Price V. Price, 347, 376. Prince v. Blackburn, 481. Prince v. Heylin, 334. Prout V. Eoby, 780. Providence Rubber Co. v. Goodyear, 766, 767. Pulliam V. PuUiam, 54, 837. PuUian v. PuUian, 798. Pullman v. Stebbins, 169, 357. Pullman's Palace Car Co. v. Central Transp. Co., 709, 710. Punderson v. Dixon, 798. Purcell V. Coleman, 164, 357. Purcell V. MoNamara, 798, 799. Purcell V. Miner, 766, 767. Pusey V. Wright, 391. Putnam v. Day, 766. Putnam v. Jacksonville, It & St. L. Ry. Co., 625. Q. Quaokenbush v. Leonard, 745. Quigley v. Roberts, 238, 754. Quinby v. Conlan, 781. Quincy R. Co. v. Humphreys, 640. E. Radford v. Wilson, 347, 376. Ragland v. Broadnax, 487. Railroad Co. v. Durant, 361. Railroad Co. v. Ferry Co., 493. Railroad Co. v. Harris, 101. Railroad Co. v. McComb, 375, Railroad Co. v. Souter, 653. Railroad Co. v. Swasey, 741. Railroad Co., Ex parte, 269, 426, 437, 439, 436. Railroad & Coal Co. v. Blatchford 312, 317. ■ Railroad Commission Cases, 580. Railway Co. v. Cowdrey, 665. Railway Co. v. Foley, 756. Railway Co. v. Swan, 18. Randall v. Howard, 364* Randall v. Phillips, 387. Ranger v. Cotton-Press Co., 174. Rankin v. Huskisison, 537. Rape V. Heaton, 470. Rateau V. Bernard, 146, 817. Rawlings v. Rawlings, 338. Ray V. Lord, 741. Ray V. Low, 743. Rea V. Missouri, 514. Read v. Con^equa, 194. Reagan v. Farmers' Loan & Trust Co., 575, 576, 578, 580. Reagan v. Mercantile Trust Co., 580. Recker v. Powell, 766, 767. Reed v. Cumberland Ins. Co., 139, 389 414 Reed v. Cutter, 394. Reed v. Proprietors of Locks & Ca- nals, 521. Reed v. Stanley, 370, 350. Reeside, The, 519. Reeves v. Keystone Bridge Co., 731. Reining v. City of Buffalo, 160. Relsey v. Crowther, 165. Remer v. McKay, 369, 429. Remsen v. Eemsen, 666, 798, 803, 807, 815. Renaud v. Abbott, 495. Renner v. Bank of Columbia, 485. Requa v. Rea, 774. Reynolds v.Crawfordsville Bank, 389, 410. Reynolds v. Stockton, 470. Rhino V. Emery, 397, 388. Rhoades v. Selin, 454. Rhode Island v. Massachusetts, 76, 199, 341, 360, 390, 391, 304, 305, 355, 356, 360, 373, 874, 375, 430, 715. Rhodes v. Cousins. 593. Rhodes- V. Selin, 483. Ribon V. Railroad Cos., 44, 47, 48, 255, 736. Ricard v. Williams, 509, 513. Rice v. Ames, 883. Rice V. Houston, 106. Rice V. Sanger, 743. Richards v. Mackall, 150, 358, 260. Richardson v. Bank of England, 731. Richardson v. Golden, 454. Richardson v. Green, 854. Richardson v. Greese, 344. Richardson v. Richardson, 181, 408. Richmond v. Atwood, 740. Richmond v. Irons, 646. Richmond & Danville Ry. Co. v. Jones, 481. Richmond & Danville Ry. Co. v. Thouron, 843. Richter v. Jerome, 59. Ricker v. Powell, 370, 350. Riddle v. Whitehall, 361, 334. Ridley v. Obee, 405. Ridgeway v. Darwin, 387, 815. TABLE OF CASES. Iv Eeferenoes are to pages. Ridings v. Johnson, 10, 12, 79, 91. Riggs V. Tayloe, 485. 533. Ringgold V. Jones, 777. Ritchie v. McMuUen, 471. Roach V. Daniron, 80, 81, 91. Roach V. Summers. 387, 422. Roat V. Lake Shore & Michigan Southern R. Co., 148. Roat V. Railway Co., 12. Robbins v. Davis, 116, 119. Roberts v. Evans, 254. Roberts v. Northern Pacific R. Co., 341, 468. Roberts v. Roberts, 388. Robertson v. Allen, 481. Robertson v. Cease, 145. Robertson v. Pickrell, 58. 79, 91, 484. Robinsen v. Cunningham, 815. Robinson v. Caldwell, 838. Robinson v. Campbell, 11, 20, 246, 539. Robinson v. Davis, 370. Robinson v. Hook, 261, 264. Robinson v. Lord Byron, 537. Robinson v. Randolph, 423. Robinson v. Satterlee, 28, 713, 719. Robinson v. Scotney, 387, 391, 815. Robinson v. Smith, 274 Robinson, Ex parte, 591. Roche V. Morgell, 342, 344, 356, 376. Roemer v. Simon, 394, 395, 728, 732. Rogers v. Marshall, 730. Rogers v. McMaohan, 431. Rogers v. Nashville, Chattanooga & St. Louis Ry. Co., 174. Rogers v. Soutton, 720. Root V. Lake Shore & Mich. S. R. Co., 346. Root V. Woolworth, 109, 434, 676, 687, 706. Rose V. Woodruff, 211, 213. Rosenthal v. Walker, 503. Ross V. City of Ft. Wayne, 676, 680, 682, 683. Ross V. M'Lung, 79. Rothwell V. Rothwell, 730. Rouse V. Hornsby, 665. 670, 843. Rouse V. Letcher, 646, 665, 669, 752, 794, 801, 843. Ruckman v. Decker, 739. Rude v. Whitchurch, 391. Rumney v. Mead, 334. Russel V. Ashby, 59'i Russell V. Clark's Ex'rs, 54. Russell V. Farley, 546, 549. Russell V. Place, 342, 473. Russell V. Southard, 11. Russell's Heirs v. Craig's Devisees, 698. Rutherford v. Dawson, 730. Rutland v. Brett, 33a Rutland Marble Co. v. Ripley, 164, 165. Rutland R. Co. v. Central Vt. R. Co., 835. Ryder v. Bateman, 135. Ryder V. Holt, 567. Ryland v. Green, 698. s. Sabine, In re, 109, 434 Sage V. Memphis & Little Rock R. Co., 633, 625. Sage V. Railroad Co., 852. Salmand v. Symond. 156. Salmon v. Smith, 391, 892. Salter v. Tobias, 301. Saltus V. Tobias, 291, 293, 373. > Salvador v. Rapley, 807, 811, 812. Sanders v. King, 334. Sandford v. Paul, 799. Sanger v. Nightingale, 335. San Pedro, The, 853. San Pedro, etc. Co. v. United States, 732. Saunders v. Gray, 774. Saunders v. Hord, 334. Sauzer v. De Meyer, 376. Savillard v. Dias, 704. Savin, Re, 458. Sawj'er v. Campbell. 408. Sawyer, In re, 539, 589. Scammon v. Hobson, 386. Scanlan v. Scanlan, 372. Sohell V. Cochran, 756. Sohell V. Dodge, 869. SchiefiEelin v. Stewart, 819. Schoonmaker v. Gillett, 593. Schutz V. Jordan, 503, 503. SchoUenberger, Ex parte, 101, 111, 315. Scotia, The, 499. Scott V. Armstrong, 10. Scott V. Coleman. 470. Scott V. Donald, 543. Scott V. Lalor, 430. Scott V. Neely, 10, 148, 346. Scott V. Sandford, 10, 13, 14, 145, 253, 311, 313, 323. Schwartz v. Wendell, 391. Sea Ins. Co. v. Stebbins, 611. Sealy v. Laird. 593. Seaman v. Northwestern Mut. Life Ins. Co., 791, 792. Searles v. Jacksonville, P. & M. R. Co., 541, 611. Sebree v. Dorr, 485, 533. Segee v. Thomas, 73, 194 Seitz V. Bi-ewers' Refrigerating Co., 530. Seitz V. Mitchell, 387, 433. Sellon V. Lewen, 359, 415. Seneca Nation of Indians v. Christy, 835. Seney v. Wabash Western Ry. Co., 640. Ivi TABLE OF CASES. Eeferenoes are to pages. Senhouse v. Earl, 338. Sercomb v. Catlin, 553. Sere v. Pitot, 318. Sergeant's Lessee v. Biddle, 452. Seton V. Slade, 366. Settle Y. Alison, 481. Settlemier v. Sullivan, 469. Sewell V. Bridge, 844. Sewell V. Freeston, 838. Seymour v. Freer, 851. Seymour v. Hazard, 30, 593. Shackelford's Adm'r v. Shackelford, 651. Sharon v. Terry, 550. Sharp V. Carlisle, 372, 374 Sharp V. Fields, 156. Shaw V. Bill, 191, 676, 690. Shaw V. Little Eock & Ft. S. R. Co.,59. Shaw V. Quincy Min. Co., 101, 146, 252. ShefiSeld Furnace Co. v. Witherow, 246, 247, 280, 354. Sheffield & Birmingham Coal, Iron & Railway Co. v. Gordon, 822, 833. Sheirburn v. Cordova, 246. Shelby v. Bacon, 838. Shelden v. Hopkins, 470. Sheldon v. Sill, 4. Shellabarger v. Oliver, 453. Shelly V. Guy, 79. Shelton v. Piatt, 553. Shelton v. Van Kleeok, 766. Shepherd v. Roberts, 379.. Sheppard v. Graves, 311, 313, 317, 333, 323. Shields v. Barrow, 39, 44, 45, 47, 48, 114, 118, 148, 172, 175, 183, 199, 246, 255, 269, 370, 332, 357, 426, 427, 429, 433. Shields v. Coleman, 649, 838, 839. Shields v. Thomas, 171. Shillaber v. Robinson, 746, 749. Shirk V. City of La Fayette, 106. Shoe Co. V. Sykes, 639. Shreveport v. Cole, 319, 830, 506. Shudal V. Jekyll, 515. Sibbald v. United States, 868, 869. Sickels v. Borden, 545. Sidney v. Perry, 338, 364, 415. Sidney v. Sidney, 533. Siffkin V. Manning, 363, 364, 415. Sigel V. Phelps, 354. Silsby V. Foot, 785. Simmons v. Saul, 470, 485. Simms v. Guthrie, 736. Simon Creek Coal Co. v. Doran, 347. Simpson, Ex parte, 167. Sims v. Hundly, 311, 312, 313, 317. Single V. Scott Paper Mfg. Co., 108. Singleton v. Gayle, 388. Sioux City, O. & W. Ry. Co. v. Man- hattan Trust Co., 752. Skillern's Ex'rs v. May's Ex'rs, 869. Skinner v. Maxwell, 606. Skip V. Harwood, 611, Slack V. Black, 264 Slack V. Walcott, 676, 693, 696, 698, 701. Slater v. Cobb, 369. Slater v. Maxwell, 381. Slawson v. Grand Street R. Co., 395, 396. Small V. Northern Pacific R. Co., 857. Smell V. De Land, 833. Smith V. Althus, 796, 799. Smith V. Babcock, 405, 406, Smith V. Burnham, 715. Smith V. Clark, 533. Smith V. Clay, 336. Smith V. Cunningham, 391. Smith V. Gale, 483. Smith V. Graham, 799. Smith V. Greenhow, 317. Smith V. Jackson, 4. Smith V. Kernochen, 311, 313, 313, 317, 338. Smith V. Lyon, 100, 146, 352. Smith V. Martin, 777. Smith V. McCann, 79. Smith V. McCuUough, 633, 658. Smith V. McKay, 839. Smith V. Naugle, 777. Smith V. Overton, 346. Smith V. Sargent Mfg. Co., 104 105, Smith V. Swomstedt, 70. i Smith V. Vulcan Iron Works, 868. Smith, Ex parte, 144, 252, 323. Smyth V. New Orleans Canal & Banking Co., 148, 245, 246. Sneed v. Swing, 58, 79, 91, 484 Snook V. Snetzer, 553. Snyder v. Fielder, 448. Snyder v. Snyder, 470. Society v. Pawlet, 324. Soulard v. United States, 243. South Ottawa v. Perkins, 501. Southard v. Russell, 731, 766, 768. Southern' Development Co. v. Silva, 885. Southern Pacific Co. v. Denton, 100. 101, 146, 300, 301, 252, 310, 315. Southern Pac. E. Co. v. Temple, 312. Southern Pac. R. Co. v. United States, 840. Southern Ry. Co. v. Carnegie Steel Co., 629, 653, 654, 655, 657, 665, 669, 752, 794, 801. Souzer v. De Meyer, 307. Sparhawk v. Yerkes, 640. Spears v. Cheatam, 309, 310. Speoht V. Howard, 519. Speidel v. Henrici, 258, 261. Spencer v. Birmingham Ry. Co., 537. Spencer v. Van Duzen, 182, 183, 184, 357. SpofEord V. Manning, 367. Spoflord, In re, 456, 459, 467. TABLE OF OASES. Ivii References are to pages. Spokane Falls & N. R Co. v. Ziegler, 493. Spraggs V. Binks, 336. Sprigg V. Bank of Mount Pleasant, 518. Spring V. Insurance Co., 481. Stafford v. Brown, 115, 118, 306, 370, 413. Stafford y. Howlett, 185, 678, Stampers v. Griffin, 480. Stanley v. Robinson, 373. Stanley v. Supervisors, 555, 558. Stanton v. Embry, 328. Stanton v. Alabama & C. B. Co., 630, 658, 833. , Stapylton v. Scott, 430. Stark V. Starr, 148. State V. Columbia, 391, State V. Dunwell, 499. State V. Hemingway, 710, State V. Melton, 198. State V. Wagner, 499, 501. State V. Wilmer, 608. State of New York v. State of Con- necticut, 544. State of Pennsylvania v. The Wheel- ing Bridge Co., 540, 583. State of South Carolina v. Port Royal & A. Ry. Co., 634. State Railroad Taxes Case, 554 States V. Chaves, 513. Stearns v. Page, 148, 395, 306, 836, 376. Stebbins v. Duncan, 480, 481, 485. Stebbins v. Town of St. Anne, 43. Steiger v. Bonn. 197. Stephens v. MoCargo, 171, 173, Sternes v. Franklin Co., 733. Stevens v. Cooper, 441. Stevens v. Nichols, 13. Stevens V. Post. 387. Stevens v. Praed, 786, 787. Stevens v. The Railroads, 709. Stewart v. Dunham, 646. r; Stewart v. Gay. 819. Stewart v. Graham, 597. Stewart v. Masterson, 375, 379. Stewart v. Solomon, 731, 768, 869. Stewart v. Smith, 313. Stewart, In re, 456, 459,. 467. Stiokney v. Stickney, 513. Stiokney v. Wilt, 868. Stillwell V. Williams, 606. Stirrat v. Excelsior Mfg. Co., 339. St. Clair v. Cox, 193. St, Clair County v. Lovingston, 741. St. Joseph & Grand Island R. Co. v. Steel. 103. St. Joseph & St. Louis R. Co. v. Humphreys, 640. St. Louis V. Knapp, 148, 155, 158, 373. St. Louis V. Rutz, 13. St. Louis, Alton, etc. Ry. Co. v. Cleve- land, Columbus, etc. Ry. Co., 655. St. Louis & San Francisco Ry. Co. v. James, 103. St. Louis & S. F. R. Co. v. McBride, 111, 199, 300, 315. St. Louis, etc. Ry. Co. v. Johnson, 149. St. Louis, Iron Mt. etc. R. Co. v. South- ern Express Co., 741, 743. St. Louis Public Schools v. Risley's Heirs, 509. St. Louis Ry. Co. v. Cleveland Ry. Co., 633. St. Romes v. Levee Cotton Press Co., 339. Stoddard v. Chambers, 483. Stokes V. MoKerrall, 777. Stone V. Moore, 373, Stonemetz P. M Co. v. Brown F. M. Co., 269, 429. Stonington Savings Bank v, Davis, 795. Storey v. Brown, 809. Storms V. Storms, 35, 183, 183, 357. Story V. Livingston, 11, 17, 19, 20, 53, 73, 589, 694, 715, 794, 818, 831,833. Story V. Lord Windsor, 347. Story, Ex parte, 731, 768, 869. Stoughton V. Lynch, 818. Strang v. Harris, 730. Strange v. Collins, 405. Strettel v. Ballow, 10, 353. Strode v. Blackburne, 346. Strother v. Lucas, 498. StruU, Petitioners. In re, 753. Stuart V. Boulware, 688, 089, 753. Stubbs V. Leigh, 681. Sugar V. Steel, 833. Sullivan v. Judah, 585, 545. Sullivan v. Portland & K R Co., 18, 148, 150, 346, 358, 260. Sullivan v. Steamboat Co., 353. Sumner v. Thorpe. 844, 345. Sunflower Oil Co. v. Wilson, 640, 753. Supervisors v. Stanley, 558. Sutherland v. Lake Superior Ship. Canal, Railroad & Iron Co., 68. Sutton v. Bancroft, 756. Suydam v. Beals, 208, 397. Swallow V. Day, 405. Swan V. Clark, 658. Swatzel V. Arnold, 186, 676. Symmes v. Strong, 889. Talbot V. Rutledge, 391. Talbot V. Seeman, 498. Talmage v. Pell, 405. Tampa Suburban R. Co., In re, 868. Tanfield v. Irvine, 612. Tanner v. Radford, 774. Tappan v. Gray, 589. Tappan v. Smith, 676, 083. Tayloe v. Riggs, 533. Iviii TABLE OF CASES. Eeferences are to pages. Taylor v. Allen, 608. Taylor v. Barron, 470. Taylor v. Brenham, 35, 183, 357. Taylor v. Bruen, 186, 383. Taylor v. Carryl, 551. Taylor v. Holmes, 71, 74, 255. Taylor v. Keroheval, 589. Taylor v. Life Ass'n, 144. 145, 353. Taylor v. Longworth, 191, 199. Taylor v. Luther, 380. Tavlor v. Obee, 405. Taylor v. Bead. 836. Taylor v. Sharp, 338. Taylor v. Taintor. 551. Teal V. Walker, 633. Tedswell v. Bowyer, 405. Telegraph Co. v. Texas, 578. Telfair et aL, Ex'rs, v. Stead's Ex'rs, 55. Temple v. Baltinglass, 338. Templeman v. Fauntleroy, 798. Tench v. Cheese, 418. Tennessee v. Union & P. Bank, 13, 144, 145, 147, 253, 333. Terhune v. Phillips, 492. Terre Haute & I. R. Co. v. Peoria & P. U. R. Co., 550. Terrell v. Allison, 647, 770, 771, 773, 774 Terry, Ex parte, 591. Texas & Pacific Ry. Co. v. Cody, 147, 493. Texas & Pacific Ry. Co. v. Anderson, 869. Texas & Pacific Ry. Co. v. Bloom, 642, 643. Texas & Pacific Ry. Co. v. Cox, 641, 642. Texas & Pacific Ry. Co. v. Gay, 653. Texas & Pacific Ry. Co. v. Johnson, 643, 648. Texas & Pacific Ry. Co. v. Murphy, 7o3. Texas & Pacific Ry. Co. v. Saunders, 815. Texas & Pacific Ry. Co. v. Welder, 453. Texas & St. L. Ry. Co. v. Rust, 651. Thatcher v. Powell, 79. Thayer v. Wales, 198. Thomas v. Brockenbrough, 270, 350, 766,767. Thomas v. Harvey's Heirs, 766. Thomas v. Oakley, 581. Thomas v. Robinson, 470. Thomas v. Western Car Co., 633, 665, 669, 794, 801. Thompson v. Central Ohio R. Co., 148, 345, 346. Thompson v. Dean, 741. Thompson v. Lambe, 387, 391, 815. Thompson v. Maxwell, 178, 766, 767. Thompson v. MoReynolds, 109, 194, 434. Thompson v. Railroad Co., 246, 539. Thompson v. Roberts. 338. 468. Thompson v. Soott, 641, 643, 665. Thompson v. Smith, 770, 771, 773, 774, 791. Thompson v. Tolmie, 505. Thompson v. Whitman, 469. Thomson v. Wooster, 18, 199, 303, 304, 307, 209, 310, 311, 212, 235, 336, 397, 801. Thorn v. Germand, 181. Thorp V. Yeates, 254. Three Friends, The, 500, 848. Thring V. Edgar, 334 Thurber v. Cecil Nat. Bank, 467. Tibbals v. Sargent, 613. Tilghman v. Proctor, 793, 795. Tindal v. Cobham, 720. Tinnin v. Price, 481. Tilton V. Cofield, 774 Tittenson v. Peat, 345. Tobey v. Leonard, 885. Todd V. Daniel, 858, 860. Toland v. Sprague, 111, 199, 300, 315, 658. Toller V. Carteret, 768. Tomlinson v. Branch, 576. Tomlinson v. Ward, 611, 613, 630. Tompkins v. Elliott, 163. Tompkins v. Ward, 346. Toplitz V. Hedden, 501. Toulmin v. Reid, 431. Tourville v. Naish, 346. Town V. Needham, 387. Town of South Ottawa v. Perkins, 478. Town Savings Bank of New Haven V. Epping, 187. Townsend v. Graves, 777. Townsend v. Little, 346. Townsend Savings Bank v. Epping, 256. Townsley v. Sumrall, 498. Tracy v. Holcombe, 742. Trade-mark Cases, 567. Traedor v. Hyams, 481. Travers v. Ross, 283. Tremaine v. Hitchcock, 178, 678. Trevanian v. Morse, 346. Troy Iron & Nail Factory v. Corn- ing, 834 Truly V. Wanzer, 553. Trust & Fire Ins. Co. v. Jenkins, 174, 181. Trust Co. V. Grant Locomotive Works, 753. Trust Co. V. Railroad Co., 64. Trustees v. Greenough, 639, 873. Tucker v. Moreland, 514 Turgean v. Brady, 613. TABLE OF CASES. lix References are to pages. Turner v. Bank of North America, 3, 145, 253. Turner v. Ogden, 163. Tworl V. Tworl, 581. Tyler v. Hand, 273. Tyler v. Savage, 13, 148, 245, 346. Tyler v. Simmons, 830, 833, 834, 835. Tyler, In re, 553, 554, 644, 646. U. Uhlmann v. Arnholt & Sohaeffer Brewing Co., 139, 131, 414. Union Bank v. Barker, 136, 383. Union Bank v. Geary, 130, 385. Union Bank of Louisiana v. Stafford, ' *United States v. Le Baron, 503. 356. Union Mutual Life Ins. Co. v. Kirch- off, 743. Union Pacific Ry. Co. v. Harris, 103, 849. Union Pacific Ry. Co. v. Ryan, 554 Union Savings Bank v. Taber, 509. Union Sugar Refinery v. Mathieson, 817, 831. Union Sugar Refinery v. Matthew- son, 197. Union Trust Co. v. Illinois Midland Ry. Co., 630, 633, 635, 636, 638, 639, 630, 631, 633, 646, 654, 655, 658, 720. Union Trust Co. v. Morris, 633, 655. Union Trust Co. v. Souther, 630, 635, 633, 654, 655. Union Trust Co. v. Southern Naviga- tion Co., 774. United Railroad & Canal Co. v. Long Dock Co., 408. United States v. Amedy, 473. United States v. American Bell Tele- phone Co., 149, 389, 391, 373. United States v. Armejo, 301. United States v. Arredondo, 76, 243. United States v. Atherton, 149, 370. United States v. Beard, 160. United States v. Bell Telephone Co., 849. United States v. Bridgeman, 197. United States v. Cameron, 453. United States v. California & Oregon Land Co., 389, 291, 356, 357, 373, 375. United States v. Carr, 505. United States v. Castro, 486. United States v. Chaves, 496, 497, 509. United States v. Crosby, 79, 91. United States v. Curry, 301, 852, 855. United States v. Dalles Military Road Co., 305, 356,357. United States v. Dashiel, 849. United States v. Dickson, 509. United States v. Drennen, 10, 353. United States v. Drew, 8. United States v. E. C. Knight Co., 559, 563. United States v. Freight Ass'n, 558. United States v. Gillespie, 333. United States v. Harris, 636. United States v. Hopewell, 850. United States v. Rowland, 11, 30, 539. United States v. Hudson, 591. United States v. Huffmaster, 316. United States v. Iron Silver Mining Co., 506. United States v. Jellico Mountain Coal & Coke Co., 9. United States v. Jahn, 473, 830, 840, 841. United States v. Jones, 8. United States v. Knight, 731, 768. United States v. L. & P. Can Co., 541. Ry. United States v. Lee, 577. United States v. Lynde, 499. United States v. Mexican Nat. Co., 9. United States v. Mooney, 105. United States v. Moore, 336. United States v. Palmer, 499. United States v. Peggy, 344. United States v. Peralta, 506. United States v. Percheman, 343. United States v. Perot, 496, 497. United States v. Rauscher, 493. United States v. Reynes, 499. United States v. Rider, 833, 883, 837. United States v. Ross, 505. United States v. Saline Bank, 138, 383. United States v. Samperyac, 309, 310, 781. United States v. Sayward, 5, 316. United States v. Sturges, 70. United States v. Turner, 496. United States v. Union Pacific Ry. Co., 845. United States v. Whitoomb Metallic Bedstead Co., 9. United States v. Wiggins, 498. United States v. Yorba, 499. United States Bank v. Dandridge, 505. United States Bank v. Ritchie, 323. United States Bank v. White, 313, 715. United States Exp. Co. v. Kountz, 146. United States Trust Co. v. Wabash Ry. Co., 640. Updegraff v. Crans, 589. Usborne v. Baker, 678. Utica Ins. Co. v. Lynch, 381, 884 819. V. & A. Coal Co. V. Central R. Co., 665, 753. Vaigneur v. Kirk, 777. Vail V. Knapp, 553. Ix TABLE OF CASES. Eeferences are to pages. Van Aernam v. Van Aernam, 508. Van Alst v. Hunter, 785. Van Buskirk v. Mulock, 470. Van Hook v. Whitlock, 360, 37S, 393, 303, 335, 374. Van Norden v. Morton, 148, 346. Van Patten v. Chicago, M. & St. P. R. Co., 104, 105. Van Renssellear v. Brice, 417. Van Riemsdyk v. Kane, 388. Van Wagener v. Sewell, 838. Van Weel v. Winston, 149. Van Winkle v. Crowell. 530. Vattier v. Hinde, 35, 183, 346, 357, 676. Vaughan v. Northup, 56. Vaun V. Barnett, 613. Vause V. Wood, 606, 611. Vegrass v. Binfleld, 730. Vermilyea v. Bank, 67. Vermont Farm Machine Co. v. Con- verse, 730. Verplanck v. Mercantile Ins. Co., 61, 613. Verplank v. Caines, 375. Vetterlein v. Barnes, 54. Vigel V. Hopp, 385. Vigers v. Lord Audley, 687. Villabolas v. United States, 853. Violett V. Patton, 337. Virginia & Alabama Coal Co. v. Cen- tral Railroad & Banking Co., 655, 656. Voorhees v. Bank of United States, 505. Vose V. Bronson, 59. Vroom V. Ditmas, 739. w. Wabash, St. L. & Paciiio Ry, Co. v. lUinois, 578, 580. Wabash W. R. Co. v. Brow, 301. Wade V, Lowder, 835. Wager v. Stickle, 335. Waggoner v. Gray, 815. Wagner v. Baird, 358, 336. Wagner v. Drake, 550. Wake V. Parker, 354. Walden v. Bodley, 381, 383, 838, 339, 714, 774. Walker v. Beall, 54. Walker v. Bell, 661, 664 Walker v. Collins, 147. Walker v. Dreville, 831, 849. Walker v. Hallett, 678. Walker v. Jack, 383. Walker v. Locke, 364. Walker v. Powers, 173. Walker v. Robins, 199, 200. Walker v. Symonds, 383. Walker, Ex parte, 608. Wallace v. Loomis, 630, 635, 639, 633, 654, 658. Walsh V. Preston, 165. Walter v. Lock wood, 156. Walter Baker & Co. v. Baker, 676. Walters v. Anglo-American Mort- gage Co., 651. Walton V. Coulson, 333, 75i Walton V. Hobbs, 385. Walton V. Low, 786, 787. Walwyn v. Lee, 346, 351, 353, 353. Ward V. Paduoah & M. R. Co., 803. Ward V. Seabring, 435. Ware v. Galveston City Co.. 55. Warner v. New Orleans, 846. Warner v. Texas & Pacific R. Co., 337. Warner Valley Stock Co. v. Smith, 675. Warren v. Younger, 453. Washington, A. & G. Packet Co. v. Sickles, 340, 343, 468, 473. Washington. Alexandria & George- town R. Co. V. Bradley, 431, 430. Washington, A, & G. R. Ca v. Brown, 199. Washington & Georgetown R. Co., In re, 869. Waterbury v. Sturtevant, 503, 514. Waterhouse v. Caines, 650. Watkins v. Carlton, 785. Watkins v. Holman, 553. Watson V. Jones, 837. Watson V. Lord Lincoln, 515. Watson V. Rennick, 116, 119, 133,134, 370, 383.- Watson V. Williams, 591. Watt V. Starke, 780, 781, 783, 784, 786, 787. Watts V. Kilbourn, 481. Watts V. Kinney, 80, 91. Watts V. Waddle, 79, 164 Watzell V. Arnold, 678. Webb V. Barnwall, 194. Webb V. Den, 473. Webber V. Whiting, 833. Weed V. SmuU, 188, ISi, 844, 345, 358, 430. Wells V. Wood, 405. Welsh V. Joy, 198. Wendell v. Van Rensselaer, 43. Werner v. Charleston, 743. Wessells v. Wessells, 803. West V. Brashear, 869. West V. Randall, 70, 73. Western Division of Western North Carolina R. Co. v. Drew, 456. Western Union Tel. Co. v. Ann Ar- bor R. Co., 840. Wetmore v. Eymer, 317, 819, 330, 331, 333,833. Whaley v. Norton, 533. TABLE OF OASES. Ixi Eeferenoes are to pages. "Whalley v. Whalley, 777. Wharton v. Wharton, 405. Wheaton v. Peters, 569. Wheeler v. Malins, 704. Wherman v. Conkling, 550. Whittaker v. Salisbury, 480, 481. W^hite V. Berry, 589. White V. Bower, 430. White V. Buloid, 423, 436. White V. Crow, 505. White V. Ewing, 109, 801, 434, 646. White V. Gibbs, 674, 676. White V. Joyce, 754. White V. Lincoln, 382. White V. Lord Westmeath, 707. White V. Miller, 323, 754. White V. Rankin, 5, 6. White V. Sayer, 405. White V. Williams, 379, 383. Whitebread v. Brockhurst, 391. Whiteoar v. Michenor, 537. Whitehead v. Brockhurst, 373. Whitehead v. Shattuck, 13, 148, 345, 246, 539. Whitehead v. Wooten, 612. Whitehouse v. Partridge, 593. Whitesides v. Pendergrast, 653. Whitfield, Ex parte, 611. Whitford v. Clark, 451. Whiting V. Bank of United States, 270, 350, 739, 743, 745, 766, 767. Whitmore v. Ampskeag Nat. Bank, 103. Whitney v. Bank, 611. Whitney v. Cork, 756. Whitney v. McKinney, 70. Whittemore v. Patton, 139, 4R Whyte V. Arthur, 436. Wicklifle v. Clay, 430, 437. Wicklifife v. Eve, 553. Wickliffe v. Owings, 311, 813, 317, ■ 369. Wigg V. Wigg, 347. Wiggins V. Burkham, 344 Wilcox V. Jack.son, 577. Wilder v. Keeler, 680. Wiley V. Pistor, 431. Wilkes V. Rogers, 832, 823. Wilkin V. Wilkin, 786, 787. Wilkins v. Allen, 521. Wilkinson v. Roper, 437. Willan V. Willan, 799. Willard v. Tayloe. 164, 518. Williams v. Bank of the United States, 857. Williams v. Bankhead, 47, 255. Williams v. Conger, 868. Williams v. Corwin, 209, 310. Williams v. Donell, 509, 512. Williams v. Healy, 160. Williams v. Keyser, 480, 481, 483. Williams v. Kirtland, 79. Williams v. Lee, 341, 351, 353, 853, 376. Williams v. Llewellyn, 533. Williams v. Morgan, 669, 670, 750, 751, 794, 801. Williams v. Nottawa, 819, 320. Williams v. Suffolk Ins. Co., 243, 344, 499. Williams v. United States, 473, 505. Williamson v. Berry, 773. Williamson v. Cooke, 704. Williamson v. Dale, 774. Williamson v. Suydam, 79. Williamson v. Wilson, 630. Willis V. Jernegan, 344. .Willoughby v. Carlton, 480, 481. Willow V. Willow, 797. Wilmington & Weldon E. Co. v. Als- brook, 341, 468. Wills V. Wood, 407. Wilson V. Barnum, 780. Wilson V. Grace, 403. Wilson V. Hill, 156. Wilson V. Joseph, 553. Wilson V. Matthews, 836. Wilson V. Riddle, 781. Wilson V. Seligman, 193. Wilson V. StoUey, 35. Wilson V. Western Union TeL Co., 99, 100. Winchester v. Beaver, 754. Windsor v. McVeigh, 217. Wing v. Goodman, 369, 430. Winn V. Fletcher, 335. Winn V. Patterson, 483. Winship v. Jewett, 335. Winter v. Ludlow, 187. Winters v. Claitor, 283. Winters v. January, 388. Winthrop Iron Co. v. Meeker, 741. Wiscart v. Dauohy, 831, 849., Wisconsin v. Pelican Ins. Co., 469. Wisner v. Ogden, 360. Wiswall V. Sampson, 611, 643, 665. Wiswall v. Wandell, 384. Wittbeck v. Edgar, 680. Wood V. Braddiok, 888. . Wood v. Guarantee Trust Co., 658. Wood v. Mann, 167, 311, 313, 359, 369, 465, 487. Wood v. Oregon Development Co., 630, 651. Wood V. Strickland, 861, 876. Wood V. Wood. 373. Woods, In re, 847. Woodbury Planing Machine Co. v. Keith, 895. Woodmanse & Hewitt Co. v. Will- iams, 40, 836. Woods V. Morrell, 166, 333, 379, 880, 881, 417. Woodward v. Jewell, 818. Ixii TABLE OF CASES. Eeferenoes are to pages. Woodward v. Schatzell, 593. Woodward v. Woodward, 686. Wooster v. Clark, 447. Worcester v. Truman, 593. Wormley v. Wormley, 71. Wortley v. Birkhead, 338. Wright V. Andrews, 470. Wright V. Carew, 334. Wright V. Dane, 117. Wright V. Miller, 223, 745, 754 Wright V. Taylor, 433. Wyoh V. E. India Co., 384 Wych V. Meal, 388. WyckoflE V. Sniffin, 374. Wyle V. Coxe, 732. Wylie V. Coke, 18. Wythe V. Myers, 817. Yare v. Harrison, 730. Yates V. Farebrother, 730. Yates, Case of, 591. Yeaton v. Lenox, 852. Young V. Colt, 135. Young V. Grundy, 877. Young V. Montgomery & E. E. Co., 651. Youngblood v. Schamp, 543. Younge v. Buncombe, 730. Zimmerman v. Franke, 553. FEDERAL EQUITY PROCEDURE. CHAPTEE I. BASIS OF THE EQUITY JURISDI(?riON OF THE CIRCUIT COURTS OP THE UNITED STATES. § 1. Introductory. 3. Creation of the federal judici- ary. 3. Constitutional grant of judicial power. 4. Statutory grants of jurisdiction. 5. Original jurisdiction of the cir- cuit courts of the United States. 6. Same — Jurisdiction under the bankruptcy act. § 7. Sources of the equity jurisdic- tion of the circuit courts of the United States. 8. The system of equity jurisdic- tion and jurisprudence admin- istered by the circuit courts. 9. Same — Rules of decision same in all the states. 10. Adequate remedy at law. 11. The jurisdiction must appear upon the face of the record. § 1. Introductory. — In every suit commeiiced and prose- cuted in the courts of the United States the jurisdictional facts must affirmatively appear upon the face of the record ; ^ a knowl- edge of correct procedure is inseparably connected with a knowl- edge of the peculiar limitations established upon the judicial power of the government; it therefore follows, as a logical necessity, that the acquisition of a comprehensive understand- ing of the great system of equity procedure administered in the circuit courts of the United States, and its actual applica- tion in judicial controversies, demand, as a prerequisite, a clear conception of the nature, origin and sources of the equity juris- diction vested in thoee courts. It is an axiomatic legal truth that the basis of this equity jurisdiction is laid in the provis- ions of the federal constitution and the laws made under the authority thereof, creating the federal judiciary, and granting and limiting the judicial power of the United States, and con- 1 Continental Life Ins. Co. v. Rhoads, 119 U. S. 237; Peper v. Fordyce, 119 U. S. 469; Johnson v. Christian, 135 U. S. 645. 1 2 FEDERAL EQUITY PEOCEDTJEE. [§ 1. / ferring and determining the jurisdiction of the courts of the federal judicial system; and all intelligent study of procedure, and especially equity procedure, in the federal courts, should, in the very nature of things, be preceded by a critical exam- ination of these constitutional and statutory provisions. The importance of the preliminary investigation here suggested is evidenced by the fact that a great body of judicial learning, the accretions of a century, has been developed by the judges of the courts of the United States touching their jurisdiction, which learning has been devoted largely to the construction and practical application of these constitutional and statutory provisions to the affairs of human society in controversies aris- ing before them. There has been little or no difficulty in hold- ing that the equity powers of the circuit courts are amply suf- ficient to administer full relief in all cases falling within their equity jurisdiction. The chief difficulty has been encountered in determining whether or not the particular case before the court for adjudication came within the class of controversies over which the court has been, by the constitution and laws, given jurisdiction ; this has resulted from the peculiar limita- tions established by the constitution upon the judicial power of the United States. In Bcmle v. Deveaux ' Chief Justice Mar- shall said : " The judicial power of the United States, as de- fined in the constitution, is dependent, 1st, on the nature of the case; and 2d, on the character of the parties." And in Cohens Vi Virginia ^ the same learned judge said : " In one descrip- tion of cases the jurisdiction of the court is founded entirely on the character of the parties, and the nature of the controversy is not contemplated by the constitution. The character of the parties is everything, the nature of the case nothing. In the other description of cases the jurisdiction is founded entirely on the character of the case, and the parties are not contem- plated by the constitution. In these the nature of the case is everything, the character of the parties is nothing." It is not within the purview of this work to discuss the principles of equity jurisprudence, nor to enumerate the rights and estates which are cognizable in courts of equity; but it seems reason- able to direct attention, in the inception, to the provisions of conventional law, which form the basis of the equity jurisdic- 1 5 Cranch, 85. 2 6 Wheat. 264 §§ 2, 3.] BASIS OF EQUITY JUEISDIOTION. 3 tion of the circuit courts of the United States, as introductory to the study of equity procedure in those courts. §2. Creation of the federal judiciary. — The federal con- stitution provides that: "The judicial power of the United States shall be vested in one supreme court, and in such in- ferior courts as the congress may from time to time ordain and establish." ^ By the judiciary act of September 24, 1T89,^ the congress created, ordained and established district courts and circuit courts; and under this act the judiciary system of the United States was fully organized, and went into immedi- ate active operation; by act of February 24, 1855,' the court of claims was created and established ; and by the act of March 3, 1891,* the congress created, ordained and established a United States circuit court of appeals in and for each circuit, and under the act these courts were at once organized and went into act- ive operation. The circuit courts of the United States are not " inferior courts " in the common-law or technical sense ; they are so only in the sense of the federal constitution, and in sub- ordination to the supreme court; and their judgments and pro- ceedings are not to be regarded and interpreted in the light of the common-law rules applicable to inferior common-law courts.' § 3. Constitutional grant of judicial power. — The consti- tutional grant of judicial power is as follows: "The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors or other public ministers and con- suls; all cases of admiralty and maritime jurisdiction; to con- troversies to which the United States shall be a party; to controversies between two or more states ; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states ; and between a state, or citizens thereof, and foreign states, citizens or subjects. 1 U. S. Const., art. 3, sec. 1. ' Livingston v. Van Ingen, 1 Paine, n U. S. Stat, at L., ch. 20, p. 73 et 45, Fed. Cas. No. 8,430; Turner v. seq. Bank of North America, 4 DalL 8; 3 U. S. R. S., sec. 1040 et seq. McCormick v. Sullivan, 10 Wheat. 4 36 U. S. Stat, at L., ch. 517, p. 838 192; Kempe's Lessees v. Kennedy, 5 et seq. Cranoh, 173. 4 FEDERAL EQUITY PEOCEDTJEE. [§ 4 "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all other cases before mentioned the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make." ^ To meet the decision of the supreme court in the case of Chisholm's Ex'rs v. Georgia,^ and to place a limitation upon the judicial power in that regard, the constitution was amended as follows: "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."* It will be seen that, although the constitution has defined the limits of the judicial power of the United States, yet it has not prescribed how much of that power shall be exercised by the circuit courts, nor defined their jurisdiction, leaving this to be determined by act of congress.* § 4. Statutory grants of jurisdiction. — The judiciary act of September 24, 1Y89,* conferred upon the circuit courts orig- inal jurisdiction, concurrent with the courts of the several states, of all suits of a civil nature, at common law and in equity, in certain classes of controversies enumerated in that statute. Subsequent legislation conferred additional jurisdiction upon the circuit courts ; these statutes, with their amendments, were revised, consolidated and carried into the Kevised Statutes.* After the revision, and on March 3, 1875, an act was passed by congress entitled "An act to determine the jurisdiction of the circuit courts of the United States and to regulate the removal of causes from state courts, and for other purposes ; " ' this act was amended March 3, 1887; ^and the last-named act was amended August 18, 1888.' The act of March 3, 1875, did not repeal or displace any part of section 629 of the Kevised Stat- utes, except the first paragraph thereof ; and the acts of March 3, ■1 U. 8. Const, art. 3, sec. 3. 6 i xj. S. Stat, at L., oh. 30, p. 73 et 2 3DalL419. seq. 3 U. S. Const., 11th Amend. « U. S. E. S., sec. 639 et seq. * Sheldon v. Sill, 8 How. 446; Smith 1 18 U. S. Stat, at L., ch. 137. V. Jackson, 1 Paine, 453, Fed. Cas. 8 34 xj. S. Stat, at L., ch. 373. No. 13,064 9 35 U. 8. Stat, at L., ch. 866. § 5.] • BASIS OF EQUITY JUEISDICTION. 5 1887, and of August 13, 1888, being amendatory of the act of March 3, 1876, said section 629 of the Eevised Statutes,' except the first paragraph, remains in full force.* The general juris- diction of the circuit courts of the United States is now defined and determined by chapter 7 of title 13 of the United States Eevised Statutes, and the three acts of congress last above named. There are some other special statutes giAdng jurisdic- tion to the circuit courts. § 5. Original jurisdiction of the circuit courts of the United States. — The circuit courts of the United States have original jurisdiction in the foU^ing suits, viz. : (1) Of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the consti- tution or laws of the United States, or treaties made or which shall be made under their authority.^ (2) Of all suits of a civil nature, at common law or in equity, in which the United States are plaintififs or petitioners, with- out regard to the sum or value of the matter in dispute.' (3) Of all suits of a civil nature, at common law or in equity, in which there shall be a controversy between citizens of dif- ferent states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000.'' (4) Of all suits of a civil nature, at common law or in equity, in which there shall be a controversy between citizens of the same state, claiming lands under grants of different states, without regard to the sum or value of the matter in dis- pute.' (5) Of all suits of a civil nature, at common law or in equity, in which there shall be a controversy between citizens of a state and foreign states, citizens or subjects, in which the mat- 1 Miller-Magee Co. v. Carpenter, 34 3 35 U. S. Stat, at L., ch. 866, sec. 1, Fed. R. 433; White v. Rankin, 144 p. 434; United States v. Sayward, 160 U. S. 638; Ames v. Hager, 36 Fed. R. U. S. 494. 139; Armstrong v. Ettlesohn, 36 Fed. « 35 U. S. Stat, at L., ch. 866, sec. 1, R. 309; Armstrong v. Trantam, 36 p. 434. Fed. H. 375; McConville v. Gilmour, 5 25 U. S. Stat, at L., oh. 866, sec. 1, S6 Fed. R. 377. p. 434; United States v. Sayward, 160 335 U. S. Stat, at L., ch. 866. sec. 1, U. S. 494. p. 434; United States v. Sayward, 160 U. S. 493, 498. 6 FBDEEAL EQUITY PKOCEDTJEE. [§ 5, ter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000.^ (6) Of all suits commenced by the United States, or by di- rection of any officer thereof, against any national bank, or suits for winding up the affairs of any such bank, without re- gard to the sum or value of the matter in dispute.^ (7) Of all suits at law or in equity, arising under any act providing for revenue from imports or tonnage, except civil causes of admiralty and maritime jurisdiction, and seizures on land or on waters not within admiralty and maritime jurisdic- tion, and except suits for penalties and forfeitures; of all causes arising under any law providing internal revenue, and of all causes arising under the postal laws, without regard to the amount or value of the matter in dispute.' (8) Of all suits and proceedings for the enforcement of any penalties provided by laws regulating the carriage of passen- gers in merchant vessels, without regard to the amount or value of the matter in dispute.* (9) Of aU. proceedings for the condemnation of property tat en as prize, in pursuance of section 5308, title " Insurrection," with- out regard to the amount or value of the matter in dispute.' (10) Of all suits for the enforcement of forfeitures and for the seizure or condemnation of any property under any law re- lating to the slave or cooly trade, without regard to the amount or value of the matter in dispute.* (11) Of all suits by the assignee of any debenture for draw- back of duties, issued under any law for the collection of duties against the person to whom such debenture was originally granted, or against any indorser thereof, to recover the amount of such debenture, without regard to the amount or \salue of the matter in dispute.' (12) Of all suits at law or in equity arising under the patent or copyright laws of the United States, without regard to the sum or value of the matter in dispute.^ 135U. S. Stat. atL., p. 434. 2 35U.S. Stat. atL., oh. 866, sea 1, s U. S. R. S., sees. 629, 5308, 5309. 6 U. S. R. S., sees. 629, 3159, 5555, ch. 866, sec. 4, 5556. p. 436. 3U. S. E.S.,sec. 629. fU. a RS., sees. 639, 3039. 8U. 8. E. S., sees. 629, 4970; White * U. S. E. S., sees. 629, 4370, 4540 and v. Eankin, 144 U. S. 628; Belford v. 4610. Scribner, 144 U. S. 488. § 5.] BASIS OF EQUITY JUEISDIOTION. 7 (13) Of all suits brought by any banking association estab- lished in the district for which the court is held under the pro- visions of title " The National Banks," to enjoin the comptroller of the currency, or any receiver acting under his direction, as provided in said title, without regard to the amount or value in dispute.' (14:) Of all suits brought by any person to recover damages for any injury to his person or property on account of any act done by him, under any law of the United States for the pro- tection or collection of any of the revenue thereof, or to en- force the rights of citizens of the United States to vote in the several states, without regard to the amount or value of the matter in dispute.^ (15) Of all suits to recover possession of any office, except that of elector of president or vice-president, representative or delegate in congress, or member of state legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color or previous condition of servitude: Provided, that such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guarantied by the constitution of the United States, and secured by any law to enforce the right of citizens of the United States to vote in all the states.' (16) Of all proceedings by writ of quo warranto, prosecuted by any district attorney, for the removal from office of any person holding office, except as a member of congress or of a state legislature, contrary to the provisions of the third section of the fourteenth article of amendment to the constitution of the United States.* (17) Of all suits to recover pecuniary forfeitures under any ' act to enforce the right of citizens of the United States to vote in the several states.' (18) Of all suits authorized by law to be brought by any person to redress the deprivation, under any color of any law, statute, ordinance, regulation, custom or usage of any state, of 1 U. S. R. S., sees. 629, 5337. « U. S. E. S., sees. 639, 1786. 2 tj. S. R. S., see. 639. » U. 8. R. S., see. 639. 3U.S.E.S., sees. 639, 2010, 8 TEDEEAL EQUITY PEOCEDUEE. [§ 5. any right, privilege or immunity secured by the constitution of the United States, or of any right secured by any law pro- viding for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States.^ (19) Of all suits authorized by law to be brought by any person on account of any injury to his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any con- spiracy mentioned in section 1980, title " Civil Eights." ^ (20) Of all suits authorized bylaw to be brought against any person who, having knowledge that any of the wrongs men- tioned in section 1980 are about to be done, and having power to prevent or aid in preventing the same, neglects or refuses so to do, to recover damages for any such wrongful act.' (21) Of all proceedings within their respective districts for the condemnation of real estate for use by the United States government.^ ' (22) Of suits against the government of the United States, concurrent with the court of claims, to determine all claims founded upon the constitution of the United States or any law of congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or im- plied, with the government of the United States, or for dam- ages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to re- dress against the United States either in a court of law, equity or admiralty if the United States were suable, and of all set- offs, counter-claims, claims for damage, liquidated or unliqui- dated, or other demand whatsoever on the part of the govern- ment of the United States against any claimant against the government in said courts, where the amount of such claim exceeds $1,000 and does not exceed $10,000 : Provided, said courts shall not have jurisdiction to hear and determine war claims, or any other claims which were rejected or reported on adversely by any court, department or commission authorized to hear and determine the same prior to March 3, 1887.^ 1 U. S. R. S., sees. 639, 1979. s 24 U. S. Stat, at L., oh. 359, p. 505; 2U. 8. R. S., sec. 639. United States v. Jones, 131 U. S. 1; 'U. S. K. S., sees. 639, 1981. United States v. Drew. 131 U. S. 31. *35 U. S. Stat at L., ch. 738, p. 357. § 6.] BASIS OF EQUITY JUEI8DI0TI0N. 9 (23) Of suits for the recovery of the penalty of $1,000 for any violation of the act prohibiting the importation and migra- tion of foreigners and aliens under contract or agreement to perform labor in the United States, its territories and District of Columbia.^ (24) Of suits by the United States for the recovery of the possession of their public lands held by persons and corpora- tions in violation of the act to prevent unlawful occupancy of such lands.^ (25) Of proceedings to review the decision of questions of law and of fact made by the ggneral board of appraisers in de- termining the classification of merchandise imported into the United States and the rate of duty due thereon under such classification.' (26) Of suits in equity to restrain violations of the acts to protect trade and commerce, and the import trade, against unlawful restraints, agreements, trusts, monopolies and con- spiracies; and of suits for damages brought by any person in- jured in his business or property against any other persons or corporations done by them and forbidden or declared unlaw- ful by said acts, without respect to the amount in controversy.* (2Y) Of suits in equity brought by one tenant in common or joint tenant for partition of lands in cases where the United States are one of such tenants, such suit to be broijght in the district where the land is situated.* § 6. Same — Jurisdiction under the bankruptcy act. — The bankruptcy act contains the following provisions: " {a) The United States circuit courts shall have jurisdiction of aU controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and ad- verse claimants concerning the property acquired or claimed by the trustee, in the same manner and to the same extent only 133 U. S. Stat, at L., oh. 164, p. 333; In re Deokerhoff, 45 Fed. E. 335; In 26 U. S. Stat, at L., oh. 551, p. 1084; re Blumlein, 45 Fed. B. 336; In re United States v. Mexican Nat. Ry. Downing, 45 Fed. E. 413. Co., 40 Fed. E. 769; United States v. * 36 U. S. Stat, at L., ch. 647, p. 309; Whitcomb Metallic Bedstead Co., 45 38 U. S. Stat, at L., ch. 349, sees. 73-77, Fed. E 89. p. 570; United States v. Jellico Moun- 2 33 U. S. Stat, at L., ch. 149, p. 331. tain Coal & Coke Co., 46 Fed. E. 433. 3 36 Stat, at L., ch. 407, sec. 15, p. 138 ; » 30 U. S. Stat, at L., ch. 339, p. 416. 10 FEDERAL EQUITY PEOCEDUEE. [§§ 7, S. as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants. " (5) Suits by the trustees shall only be brought or prose- cuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prose- cuted them if proceedings in bankruptcy had not been insti- tuted, unless by consent." * § 7. Sources of the equity jurisdiction of the circuit courts of the United States. — The equity jurisdiction of the circuit courts is dependent alone upon the constitution and laws of the United States. On this point the terse and comprehensive language of Judge McCrary is here given: "It has long been settled that the jurisdiction of the circuit courts of the United States in equity is derived from and defined by the constitu- tion and laws of the United States; that it is the same in all the states, and is not affected or varied by the various statutes, of the states whereby the chancery powers and jurisdiction of state courts may be defined and regulated. This court cannot, therefore, look to any state legislation as the source of its equity jurisdiction." The jurisdiction of the courts of the United States is derived alone from the constitution and laws of the United States, and cannot be enlarged, diminished or affected by state laws or regulations. The local laws of a state can never confer jurisdiction on the courts of the United States; they can only furnish rules to ascertain the rights of the parties, and thus as- sist in the administration of the proper remedies where the jurisdiction is vested by the laws of the United States.' § 8. The system of equity jurisdiction and jurisprudence administered by the circuit courts.— The remedies in the circuit courts of the United States are at common law or in 1 30 U. S. Stat, at L., oh. 541, sec. 33, Jefferson, 1 Brock. 203, Fed. Cas. No. P- 544 8,411 ; Scott v. Sandf ord, 19 How. 893- 2Strettel v. Fallow, 9 Fed. R. 256; 633; Scott v. Neely, 140 U. S. 106; American Ass'n, Lim., v. Eastern Gormley v. Clark, 134 U. S. 338; Rid- Kentucky Land Co., 68 Fed. R 721; ings v. Johnson, 128 U. S. 212; New United States v. Drennen, Hemp. Orleans v. Louisiana Construction 320, Fed. Cas. No. 14,992; The Or- Co., 129 U. S. 145; Scott v. Arm- leans V. Phoebus, 11 Pet. 175; Carey strong, 146 U. S. 499; Northern Pac v. Curtis, 3 How. 393; Livingston v. R. Co. v. Paine, 119 U. S. 561. § 9.] BASIS OF EQUITY JUEISDICTION. 11 equity not according to the jurisdiction and procedure of the state courts, but according to the principles of common law and equity, as distinguished and defined in that country from ■which we have derived our knowledge of those principles. The equity jurisdiction and equity jurisprudence administered in the circuit courts of the United States are coincident and co-extensive with that exercised in England, and are not regu- lated by the municipal jurisprudence of the states where the court sits. And the settled doctrine of the supreme court of the United States is that the remedies in equity are to be ad- ministered, not according to thg state practice, but according to the practice of the courts of equity in the parent country, as contradistinguished from the courts of common law ; sub- ject, of course, to the provisions of the act of congress, and to such alterations and rules as, in the powers delegated in those acts, the courts of the United States may from time to time prescribe. And circuit courts of the United States will exer- cise their equity jurisdiction and apply their equitable reme- dies for the protection and preservation of equitable rights and estates, altfiough the state where the court sits does not exercise a like jurisdiction nor administer like remedies.^ § 9. Same — Bales of decision same in all the states. — The equity jurisdiction given by the constitution and laws of the United States to the circuit courts being the same in all the states of the Union, their rules of decision are the same in all the states ; and the decisions of state courts involving only the general principles of equity, and not controlled by local law or usage, are not binding authority on the courts of the United States.^ But the title to real estate and a construction of deeds and statutes in respect thereto are inatters of local law, and the supreme court of the United States follows as a rule the decisions of the highest court of the state in regard to the 1 Robinson V. Campbell, 3 Wheat. 2 Neves v. Scott, 13 How. 268; 313; Boyle v. Zaoharie, 6 Pet. 658; United States v. Howland, 4 Wheat. United States V. Howland, 4 Wheat 115; Boyle v. Zaoharie, 6 Pet. 658; 115; Neves v. Scott, 13 How. 371; Eobinson v. Campbell, 3 Wheat. 333; Story V. Livingston, 13 Pet. 357; Livingston v. Story, 9 Pet. 654; Bus- Noonan v. Lee, 3 Black, 499 ; Fletcher sell v. Soutliard, 13 How. 339. V. Morey, 2 Story, 555, Fed, Cas. No. 4,864. 12 FEDEEAL EQUITY PEOCEDUEE. [§ 10. same; and the law of a state as declared by its supreme court is controlling as a rule of property.^ § 10. Adequate remedy at law. — The sixteenth section of the original judiciary act declared " that suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law." ^ This legislation introduced no new rule in re- gard to the limitation upon equitable remedies; it is simply declaratory of the rule which has existed in England ever since the adoption of equitable remedies in that country ; and the adequate remedy at law, the absence of which is, by this stat- ute, made the test of equitable jurisdiction in the courts of the United States, is that which existed at the time the statute was adopted, unless changed by subsequent legislation ; ' and this rule, as interpreted by the supreme court of the United States, is that " whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury;"* the statutory declaration of the rule was intended to emphasize it, and to impress it upon the attention of the courts; ' in order to defeat the equity jurisdiction the remedy at law must be as practical and as efficient to the ends of justice and its prompt administration, both in respect to the final rehef and the mode of obtaining it, as the remedy which equity would confer under the same circumstances.* iHalsteadv. Buster, 140 U. S. 373; Jenks v. Quidnick Co., 135 U. S. Kaukauna Water Power Co. v. Green 457. Bay & M. Canal Co., 134 U. S. 354; 2 1 U. S. Stat, at L., ch. 30, sec. 16, , Bacon v. Northwestern Mut. Life Ins. p. 83; U. S. R. S., sec. 733. Co., 181 U. S. 258; Hanrick v. Patrick, a McConihay v. Wright. 131 U. S. 110 U. S. 156; Ridings v. Johnson, 138 201 ; Whitehead v. Shattuck, 138 U. S. U. S. 318; Clement v. Parker, 125 U. 146. S. 309; Gormley v. Clark, 134 U. S. ■'Buzard v. Houston, 119 U. S. 347; 338; Parker v. Dacres, 130 U. S. 43; Hipp v. Babin, 19 How. 371; Lewis Byers v. McAuley, 149 U. S. 608; v. Cocks, 33 Wall. 466; Roat v. Rail- Peters v. Bain, 183 U. S. 670; St. Louis way Co., 105 U. S. 189; Killian v. V. Rutz, 138 IT. S. 336; Barney v. Keo- Ebbinghaus, 110 U. S. 568. kuk, 94 U. S. 334; Parker v. Bird, 137 » N. Y. Guaranty Co. v. Memphis U. S. 661 ; Hardin v. Jordan, 140 U. S. Water Co., 107 U. S. 305. 371; Cross v. Allen, 141 U. S. 538; « Tyler v. Savage, 143 U. S. 79; Kil- § ll.J BASIS OF EQUITY JTJEISDICTION. 13 § 11. The jurisdiction must appear upon the face of the record. — The jurisdiction of the circuit court is limited, in the sense that it has no jurisdiction other than that conferred upon it by the constitution and laws of the United States; and, as a result of this limitation upon the jurisdiction, the presumption is that a cause is without its jurisdiction unless the contrary affirmatively appears. It has long been settled that the facts upon which the jurisdiction of the circuit courts rests must, in some form, appear upon the face of the record in all suits prosecuted before them, and it is error for the court to proceed until its jurisdiction is shown.^ • Chief Justice Taney, discussing the necessity of the record showing the jurisdiction, and the reason of the rule, said: "But in making this objection, we think the peculiar and limited jurisdiction of courts of the United States has not been ad- verted to. This peculiar and limited jurisdiction has made it necessary, in these courts, to adopt different rules and princi- ples of pleading, so far as jurisdiction is concerned, from those which regulate courts of common law in England and in the different states of the Union which have adopted the common- law rules. In these last mentioned courts, where their char- acter and rank are analogous to that of a circuit court of the United States — in other words, where they are what the law terms 'courts of general jurisdiction,' — they are presumed to have jurisdiction unless the contrary appears. No averment in the pleadings of the plaintiff is necessary in order to give jurisdiction. If the defendant objects to it, he must plead it specially, and, unless the fact on which he relies is found to be true by a jury, or admitted to be true by the plaintiff, the juris- diction cannot be disputed in an appellate court. ISTow, it is not necessary to inquire whether in courts of that descrip- tion a party who pleads over in bar, when a plea to the juris- iDOurn V. Sunderland, 130 U. S. 505; 893 et seq.; Fishbaok v. Western Boyce v. Grundy, 3 Pet. 210; SuUi- Union Teleg. Co., 161 U. S. 96; Stevens van V. Portland & K R. E. Co., 94 v. Nichols, 130 U. S. 230; Chapman v. U.S. 806; Wylie V.Coke, 15 How. 415. Barney, 129 U. S. 677; Cameron v. 1 Continental Life Ins. Co. v.Rhoads, Hodges, 137 U. S. 833; Anderson 119 U. S. 237, and authorities cited; v. Watt, 138 U. S. 694; Tennessee v. Railway Co. v. Swan, 11 U. S. 379; Union & P. Bank, 153 U. S. 454; Met- Grace v. American Cent. Ins. Co., 109 calf v. Watertown, 128 U. S. 586. U. S. 278; Scott v. Sandford, 19 How. 14 FEDEEAL EQUITY PEOCEDUEE. [§ 11. diction has been ruled against him, does or does not waive his plea; nor whether upon a judgment in his favor on the pleas in bar, and a writ of error brought by the plaintiff, the ques- tion upon the plea in abatement would be open for revision in the appellate court. Cases that may have been decided in such courts, or rules that may have been laid down by common-law pleaders, can have no influence in the decision in this court. Because, under the constitution and laws of the "United States, the rules which govern the pleadings in its courts, in questions of jurisdiction, stand on different principles and are regulated by different laws. This difference arises, as we have said, from the peculiar character of the government of the United States. For although it is sovereign and supreme in its appropriate sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation. Certain specified powers, enumerated in the constitution, have been conferred upon it; and neither the legislative, executive nor judicial de- partments of the government can lawfully exercise any author- ity beyond the limits marked out by the constitution. And in regulating the judicial department, the cases in which the courts of the United States shall have jurisdiction are particu- larly and specifically enumerated and defined ; and they are not authorized to take cognizance of any case which does not come within the description therein specified. Hence, when a plaintiff sues in a court of the United States, it is necessary that he should show, in his pleading, that the suit he brings is within the jurisdiction of the court, and that he is entitled to sue there. And if he omits to do this, and should, by any over- sight of the circuit court, obtain a judgment in his favor, the judgment would be reversed in the appellate court for want of jurisdiction in the court below. The jurisdiction would not be presumed, as in the case of a common-law English or state court, unless the contrary appeared. But the record, when it comes before the appellate court, must show, aflarmatively, that the inferior court had authority, under the constitution, to hear and determine the case." ' 1 Scott V. Sandford, supra. CHAPTER II. SYSTEM AND SOURCES OF EQUITY PROCEDURE ADMINISTERED IN THE CIRCUIT COURTS OF THE UNITED STATES. § 12. Statutes adopting and regulat- ing equity procedure in the United States circuit courts. 13. Supreme court authorized by statute to make equity rules. 14. First equity rules promulgated by the supreme court. 15. Same — Rules now in force. 16. Procedure of the High Court of Chancery in England adopted. 17. Same — Explanation of equity rule 90 by the supreme court. 18. Same — Orders of the High Court of Chancery in Eng- land. § 19. Circuit courts may make equity rules. 20. Equity procedure same in all the states. 21. Authorities upon equity pro- cedure in the circuit courts. 23. Same— Chancellor Kent's opin- ions. 23. Ancient English equity plead- ing. 24 The matured English equity, pleading. § 12. Statutes adopting and regulating equity procedure in the United States circuit courts. — The original judiciary act is silent upon the subject of equity procedure; the act to regulate process in the courts of the United States, approved September 29, 1789, just five days after the approval of the judiciary act, provided that "the forms and modes of proceed- ings in causes of equity and of admiralty and maritime juris- diction shall be according to the course of the civil law;"^ by section 2 of an act approved May 8, 1792,^ it was declared that the forms of writs, executions and other process, and the forms and modes of proceedings in suits of equity and admi- ralty and maritime jurisdiction, shall be according to the prin- ciples, rules and usages which belong to courts of equity and courts of admiralty, respectively, as contradistinguished from courts of common law, subject to such alterations and additions as the said courts respectively shall in their discretion deem expedient, or to such regulations as the supreme court of the United States shall think proper from time to time by rule to prescribe to any circuit or district court concerning the same. 11 U. S. Stat, at L., ch. 21, sec. 2, n U. S. Stat, at L., oh. 36, sec. 3, pp. 93, 94 p. 276. 16 TEDEEAL EQUITY PEOCEDUEE. [§§ 13, 14. Additional legislation was had upon the subject by acts of con- gress approved May 19, 1828, August 1, 1842, and June 1, 1872, respectively. These various acts were revised and consolidated^ and carried into the Eevised Statutes in the following form : " The forms of mesne process and the forms and modes of pro- ceedings in suits of equity and of admiralty and maritime ju- risdiction in the circuit and district courts shall be according to the principles, rules and usages which belong to courts of equity and of admiralty, respectively, except when it is other- wise provided by statute or by rules 'of court made in pursu- ance thereof ; but the same shall be subject to alteration and addition by the said courts, respectively, and to regulation by the supreme court, by rules prescribed, from time to time, to any circuit or district court, not inconsistent with the laws of the United States." » § 13. Supreme court authorized by statute to make equity rules. — The act of May 8, 1792, authorized the supreme court to prescribe rules to the circuit and district courts in suits in equity and admiralty, and this authority was amplified and ex- tended by subsequent statutes. The legislation upon the sub- ject, as revised and consolidated, is as follows : " The supreme court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of w^rits and other processes, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining discovery, of pro- ceedings to obtain relief, of drawing up, entering and enrolling decrees, and of proceedings before trustees appointed by the court, and generally to regulate the whole practice to be used in suits in equity or admiralty by the circuit and district courts." ^ § 14. First equity rules promulgated by the supreme court. — In March, 1822, the supreme court, under the author- ity given to it by the act of May 8, 1792, promulgated thirty- three rules " to be the rules of practice for the courts of equity of the United States." These rules provided for the holding of monthly rules in the clerk's office on the first Monday in every month, and the regulation of the filing of pleadings, the 1 U. S. K. S., sec. 913. 2 U. S. R. 8., sec. 917. §§ 15-17.] SYSTEM AND SOUEOES OF EQUITY PEOCEDTJEE. I'J issue, execution and return of process, the taking of decrees pro confesso, the regulation of proceedings in the master's of- fice, and the taking of testimony; but those rules covered but few points of practice, and were, in several respects, materially variant from the equity rules now in force.^ § 15. Same — Kules now in force.— On March 2, 1842, the supreme court promulgated ninety-one equity rules, to take effect August 1, 1842, and which, with a few amendments and additions, are now in force in the circuit courts of the United States; these rules supersede the rules of March, 1822, and regulate, to some extent, and in some particulars, almost every step and proceeding in suits in equity, from their commence- ment to their conclusion; many of them were taken from the English chancery orders then in force. § 16. Procedure of the High Court of Chancery in Eng- land adopted. — Equity rule 33, adopted March, 1822, is as follows : " In all cases where the rules prescribed by this court, or by the circuit court, do not apply, the practice of the cir- cuit courts shall be regulated by the practice of the High Court of Chancery in England." The act of May 8, 1792, and the rule just quoted, were effectual to adopt the equity pro- cedure of the English High Court of Chancery in all cases not covered by a law of congress or rule of court.^ Equity rule 90, adopted March 2; 1842, is as follows : " In all cases where the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regu^ lated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied, con- sistently with the local circumstances and the local conven- iences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice." § 17. Same — Explanation of equity rule 90 by the su- preme court. — Between March, 1822, the date of the promul- gation of the first equity rules, and March, 1842, the date of the promulgation of equity rule 90, there were many and ma- terial changes in the procedure of the High Court of Chancery in England ; and it therefore has become important to know 1 7 Wheat., v. ■ 2 story v. Livingston, 13 Pet. 359. 2 18 FEDEEAL EQUITY PEOCEDUEE. [§ 18. to which one of these dates we are to look in order to deter- mine the exact limitations and modification of the procedure adopted by rule 90 ; in this we are not left without a guide. The language of the rule is : " The present practice of the High Court of Chancery in England ; " that is, the practice as it ex- isted on March 2, 1842, when rule 90 was adopted. To a case decided by the supreme court in ISSij there is a note by the court explanatory of rule 90. The note is as follows: "Eefer- ence is made to the first edition of Daniell (published 1837) as being, with the second edition of Smith's Practice (published in the same year), the most authoritative of English chancery practice in use in March, 1842, when our equity rules were adopted. Supplemented by the general orders made by Lords Cottenham and Langdale in August, 1841 (many of which were closely copied in our rules), they exhibit that * present practice of the High Court of Chancery in England,' which by our ninetieth rule was accepted as the standard of equity prac- tice in cases where the rules prescribed by this court or the circuit court do not apply. The second edition of Mr. Daniell's work, published by Mr. Headham in 1846, was much modified by the extensive changes introduced by the English orders of May 8, 1845 ; and the third edition by the still more radical changes introduced by the orders of April, 1850., the statute of 15 and 16 Yict. (ch. 86), and the general orders afterwards made under the authority of that statute. Of course the sub- sequent editions of Daniell are still further removed from the standard adopted by this court in 1842; but as they contain a view of the later decisions bearing upon so much of the old system as remains, they have on that account a value of their own, provided one is not misled by the new portions." * §18. Same — Orders of the High Court of Chancery in England. — From the above interpretation of the ninetieth equity rule by the supreme court, it would seem that the gen- eral orders of the High Court of Chancery in England which were in force on March 2, 1842, are, when they may reasonably be applied consistently with the local circumstances and local conveniences of the district where the court is held, in cases not covered by our own rules, an essential element of the system » Thompson v. Wooster, 114 U. a 104, 113. ,§§ 19, 20.] SYSTEM AND SOUECKS OF EQUITY PEOCEDtTEE. 19 of equity procedure adopted for the circuit courts of the United States; these orders furnish clear, decisive and salutary rules to guide the profession upon a large number of matters of pro- cedure, and are, in many instances, an embodiment of the re- sults of the English chancery decisions. § 19. Circuit courts may mate equity rules.— The second section of the act of May 8, 1792, authorized the circuit courts to regulate their proceedings in suits in equity, which statute was in this, as in other respects, several times amended, and, with its amendments, was revis^ and carried into the Kevised Statutes in the following form: " The several circuit and district courts may, from time to time, and in any manner not incon- sistent with any law of the United States, or with any rule prescribed by the supreme court under the preceding section (sec. 917), make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings." ^ And it is provided by an equity rule that " the circuit courts (both judges concurring therein) may make any other and further rules and regulations for the practice, proceedings, and process, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same."* The circuit courts cannot make any rule in equity which is in conflict with any rule prescribed by the supreme court, or inconsistent with any law of the United States.' Courts may change their procedure without promulgating any formal written rules ; uniform modes of procedure continued for a series of years constitute rules of court equally with those established by formal order.* § 20. Equity procedure same in all the states. — The forms of mesne process and the forms and modes of proceedings in suits in equity in the circuit courts of the United States are lU. S. R. S., sec. 918. Heath, 12 How. 168; U. S. R. S., sees. 2 Equity Rule 89. 913, 917 and 918. 8 Story V. Livingston, 13 Pet. 359; * Duncan v. United States, 7 Pet. Bank v. Wliite, 8 Pet, 263; Bein v. 435. 20 FEDEBAL EQUITY PEOCED0EE. [§ 21. the same in all the states of the Uiiion, and are not in any manner regulated or controlled by the equity procedure of the states. It has long been the settled doctrine of the su- preme court of the United States that the remedies in equity in the circuit courts of the United States are to be adminisK tered, not according to state procedure, but according to the procedure of courts of equity in the parent country, as contra- distinguished from the courts of law, subject, of course, to th6 provisions of the acts of congress, and to such alterations and rules as, in the exercise of the powers delegated in those acts, the courts of the United States may from time to time pre- scribe.^ § 21. Authorities upon equity procedure in the circuit courts. — The federal statutes and equity rules are absolutely controlling upon all points covered by them; and the decisions of the supreme court in construing the rules and statutes, and in ascertaining, declaring and applying the principles, rules, usages and forms of the equity procedure of the English High Court of Chancery, are conclusive upon all the courts of the United States. But as questions of procedure are first raised in the circuit courts, and only a small proportion of those ques- tions are ever carried up to the appellate courts for revision, the profession must resort chiefly to the reports of the decis- ions of the circuit courts and the circuit court of appeals for the learning upon equity procedure. The first edition of Dan- iell's Chancery Practice and the second edition of Smith's Chancery Practice both have been specially mentioned by the supreme court ^ as authority in the courts of the United States touching matters of equity procedure; of course, much of the matter in these books is obsolete, much is inapplicable to local conditions and the constitution of our courts, and much of it has been superseded by our equity rules and the English orders in force at the time of their adoption, and which con- stitute a part of the English system of equity procedure, upon which, as a foundation, our equity system has been established. 1 Robinson v. Campbell, 3 Wheat. Story v. Livingston, 13 Pei 36; Poillt- 213; United States v. Howland, 4 ney v. City of Lafayette, 13 Pet. 474; Wheat. 115; Neves v. Scott, 18 How. Bein v. Heath, 13 How. 168. 27; Boyle v. Zaoharie, 6 Pet. 658; 2114U. 8.113. §§ 22, 23.] SYSTEM AND SOUECES OF EQUITY PEOOEDUEB. 21 § 22. Same — Chancellor Kent's opinions In an address upon " The Use and Yalue of Authorities," before; the students of the law department of the University of Pennsylvania, on October 1, 1888, by Hon. Samuel F. Miller, then the senior associate justice of the supreme court of the United States, he. said: " So any one of the cases decided by Chancellor Kent in the seven volumes of Johnson's Chancery Eeports wiU stand, so far as it applies, as almost conclusive of the principles of, equity iurisprudence in the High Court of Chancery of Eng- land." 1 What Justice Miller has said of the opinions of Chan- cellor Kent in regard to the prijjciples of equity jurisprudence is equally true in regard to the principles, rules, usages and forms of the equity procedure of the High Court of Chancery of England. The old New York chancery system, like the equity system of the United States courts, was built upon the English chancery system; and the general frame and features of a suit in the E"ew Tork chancery courts, and many of its minor incidents, under the chancery rules of that state, were substantially the same as in a suit in equity in the circuit courts of the. United States; and not only the opinions of Chancellor Kent, but also the opinions of Chancellor Wal- worth, and, indeed, the whole of the New York Chancery Ee- ports, when used with discriminating care and a due regard to the differences between the New York chancery rules and the United States equity rules, are of very great utility and value upon questions of federal equity procedure and pleading. § 23. Ancient English equity pleading. — The great system of English equity pleading and procedure, like all administra- tive systems, had its crude beginning, followed by growth, de- velopment and maturity; and in this system as at the present time administered in the circuit courts of the United States, we behold the splendid evolution of the law. In the common- law courts, personal actions were commenced by original writ, which was a mandatory letter from the king in chancery, sealed with the great seal, and by the possession of which, when served and returned, the court was " seized of the cause," and had jurisdiction to entertain it.^ But when the equitable juris- diction arose and assumed definite form, and the court of 1 Amepcan Law Review, vol. 23, No. 2, p. 168. ^i Tidd, Prac. 93-99. 22 FEDERAL EQUITY PEOCEDUEE, [§ 23. chancery became established as a separate court for the admin- 'istration of this extraordinary jurisdiction, suits were com- menced there by the filing of a petition or bill. At first the- bill was very brief and simple; it contained a concise and sim- ple statement of the facts of the plaintiff's case, without any attempt to anticipate the defense of the defendant, and con- cluded with a prayer for a subpoena; if the chancellor was of opinion that the bill presented a case calling for the interposi- tion of the court, the subpoena issued, requiring the defendant to appear in person in chancery on a day named, " to answer to what should then and there be objected to him." It seems that from the very first, as one of the means to relief, discov- ery by the defendant was compelled ; when the defendant ap- peared he was examined personally before the chancellor, and at the same time made his defense to the suit by plea or an- swer, which was a brief statement of the facts relied on by him to bar or defeat the relief sought by the bill. The English- lawyers attempted to introduce into the court of chancery the common-law system of pleading with all its technical rules. That system sought to attain three results, viz. : (1) The pro- duction of a single, certain, material issue of fact; (2) the complete separation of issues of fact from issues of law; and (3) the trial of all issues of fact by a jury, and the trial of issues of law by the presiding judge.' It was, by its essential constitution, unsuited as a procedure to the administration of the equitable jurisdiction in chancery, where all issues both of fact and of law were decided by the chancellor, and justice was administered upon broad and liberal principles, unrestrained by the technical rules of the common law. The attempt t6 introduce the common-law pleadings was resisted by the chan- cellors with a measure of success ; but there was, nevertheless, established and for years maintained in the court of chancery a system of special pleading analogous to the common-law pleading, but less technical and rigid. This ancient system of special equity pleading, covering the entire range and bearing the very names of common-law allegations from plea to surre- butter, was borrowed from the latter system, but being found unsuited to the purpose was abandoned. It is set forth by the writers on the subject as follows: " A replication is the plaint- 1 Stephen's PL (9tli ed.), 137, 135, 136, 137. § 24.] SYSTEM AND SOURCES OF EQUITY PEOCBDTJEE. 23 iff's answer or reply to the defendant's plea or answer. For- merly, if the defendant, by his plea or answer, offered new matter, the plaintiff replied specially to the new matter; other- wise the replication was merely a general denial of the truth of the plea or answer, and pf the sufficiency of the matter al- leged in it to bar the plaintiff's suit, and an assertion of the truth and sufficiency of the bill. The consequence of a special Teplication was a rejoinder, by which the defendant asserted the truth and sufficiency of his answer, and traversed every material part of the replication. If the parties were not then at issue by reason of some ne-\^ matter disclosed in the re- joinder which required an answer, the plaintiff might surre- join to the rejoinder; and the defendant might in like manner rebut to the surrejoinder." Another statement of the ancient pleading is as follows: "The bills were formerly of a very simple character, not taking any notice of the real or supposed defense which would be set up by the defendant. The defense came out upon a plea ; and the replication stated the matter in avoidance of the plea; and then the rejoinder denied the mat- ter in the replication; and the parties were then at issue. When, for example, according to the old practice, a plaintiff by his bill stated a case for relief, if there had been a former decree on the merits, which he sought to set aside on account of fraud in obtaining the decree, the bill did not in any man- ner whatsoever allude to the decree. It was left to the defend- ant to plead the decree as a defense, barring the plaintiff's right. And the plaintiff then by his replication would reply that the decree had been obtained by fraud; by which the plaintiff would admit that the decree was a bar, if not capable of impeachment on the ground of fraud. The defendant would by his rejoinder avoid or deny 'the charge of fraud, and sus- tain the decree ; and the issue would be simply on the fact of fraud. The pleadings in ancient times frequently proceeded to a surrejoinder and rebutter." ^ § 24. The matured English equity pleading. — " The in- convenience, delay and unnecessary length of pleading, aris- ing from the various allegations on each side," in the system 1 1 Spence, 367-377; 2 Daniell, 387; Mitford, 382; Story's Eq. PL, sees. 676, 677, 878. 24 FEDEEAL EQUITY PEOOEDTJEE, [§ 24. of special pleading that anciently obtained in the court of chancery, " occasioned an alteration in the practice. . Special replications, with all their consequences," were abandoned, and have long been disused ; and, according to the matured system of equity pleading which followed, as a logical develop- ment upon the abandonment of the ancient system, " the plaint- iff is to be relieved according to the form of the bill, whatever new matters may have been introduced by the defendant's plea or answer. Eut if the plaintiff conceives, from any mat- ter offered by defendant's plea or answer, that his bill is not properly adapted to his case, he may obtain leave to amend the bill, and suit it to his cause, as he shall be advised. To this amended bill the defendant may make such defense as he shall think proper, whether required by the plaintiff to answer or not." ^ An equity rule provides that " no special replication to any answer shall be filed. But if any matter alleged in the answer shall make it^ necessary for the plaintiff to amend his bill, he may have leave to amend the same, with or without the payment of costs, as the court or a judge thereof may, in his discretion, direct;"^ and it is provided by another equity rule that, " in every case where an amendment shall be made after answer filed, the defendant shall put in a new or supple- mental answer on or before the next succeeding rule-day after that on which the amendment or bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court." ' The principles embodied in these rules were a part of the Eng- lish equity pleading and procedure long before the promul- gation of our equity rules. The pleadings in equity in the matured system consist of the bill, answer or plea, and the general replication, and demurrers to bills only ; the general replication introduces no new matter, but simply puts in issue the defendant's plea or answer, and closes the pleadings for the proofs.* The disuse of special replications and other spe- cial pleadings resulted, necessarily, in great and material ; changes in the frame and structure of bills and answers; under this change the bill performs " the double function of a bill 13 Daniell, 388; Mitford, 383,383; < Story, Eq. PI., sec. 878; Humes Story, Eq. PI., sec. 378. v. Scruggs, 94 U. S. 33; Cavender v. 2 Equity Rule 45. Cavender, 114 U. S. 464. 3 Equity Rule 46. § 24.J SYSTEM AND SOTJEOES OF EQUITY PEOOEDUEB. 25 and of a replication," and the answer of defendant performs " the double function " of an answer and a rejoinder. " The biU, instead of relying solely on the matter constituting the plaintiff's original case, proceeds to anticipate the defense; and charges facts to avoid that defense;" . . . "and re- quires a discovery as to the matter charged." The change in the structure of the bill required a corresponding change in the defense of defendant.^ Instead of the special pleadings, as formerly, we have, in the matured system, bills and amended bills; answers and amended or supplemental answers. An amended bill, by setting up by -^ay of pretense the new mat- ter brought forward in defendant's answer, and avoiding it by counter averments, is often made to perform the functions of a special replication under the old system ; ^- and an amended or supplemental answer is made to perform the functions of a rejoinder, as that pleading was formerly used ; ' and though the original bill or answer, and the amendments thereto,. are separately engrossed, yet the original pleading and its amend- ments, or supplement in the case of an answer, constitute but one pleading or record.* 1 Story, Eq. PL, sec. 678. ham, 5 How. 333; Duponti v. Mussy,. 2 Story, Eq. PI., sec. 878; Storms 4 Wash. 128. V. Storms, 1 Bdw. Ch. 358; Marstel- 'Equity Rule 46; .3 Daniell, 335, ler V. McLean, 7 Cranch, 156; Wil- 336. son V. StoUey, 4 McLean, 375; Vat- <1 Daniell, 509; 3 Daniell, 336; tier V. Hinde, 7 Peters, 253; Piatt v. Story, Eq. PI., sec. 868; French v. Vattier, 9 Peters, 405; Taylor y. Ben- Stewart, 33 Wall (89 U. S.) 347. CHAPTER III. INTEELOCUTORT PROCEDURE BEFORE THE CLERK AT RULES AND BEFORE THE JUDGES AT CHAMBERS. 25, of Circuit courts as courts equity always open. The clerk to hold monthly rules and grant certain orders and proceedings. Orders by the judges at cham- bers and at rules. The order boot Same — Notice. 30. Policy and method of the inter- locutory procedure. 81. Same — When pleadings are to be filed. 27. 28. 29. § 33. Same — When exceptions to pleadings for scandal and impertinence are to be filed. 33. Same — When exceptions to answers for insufficiency are to be filed. "" 34 Default of parties in interlocu- tory procedure. 35. Interlocutory procedure upon removal 36. Purposes of the first, second and third chapters. § 25. Circuit courts as courts of equity always open.— The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers and other plead- ings ; for issuing and returning mesne and final process and commissions; and for making and directing all interlocutory motions, orders, rules and other proceedings preparatory to hearing of all causes upon their merits. Interlocutory orders and proceedings in suits in equity are of two kinds, viz. : (1) Those which are grantable of course, and may be obtained by suitors without the allowance or order of the court or any judge thereof ; and (2) those which are special and not grantable of course, and can be obtained by suitors only upon the allowance of the court or a judge thereof. And all interlocutory motions, orders, rules and proceedings are intended, by the rules, to prepare causes for hearing upon their merits, and should be adapted to that end.^ The interlocutory procedure provided for and established by the equity rules was framed with a view of speeding causes to a final hearing, and is admirably adapted to that end ;' and this system of procedure, when viewed with reference to the purpose had in view by those eminent and learned jurists' lU. S. R. S., sec. 638; Equity Rules 1, 3, 5. § 26.] INTEELOCTJTOET PEOCEDUEE, 27 through whose labor and care it has been established and per- fected, must be regarded as the very consummation of human skill and learning, and it is much to be regretted that these rules are so often neglected in the conduct of causes; for the greatest complications that arise in equity suits are usually in the procedure preparatory to the hearing on the merits. § 26. The clerk to hold monthly rules and grant certain orders and proceedings — "The clerk's office shall be open and the clerk shall be in attendance therein on the first Monday in every month for the purpose of receiving, entering, entertain- ing and disposing of all motions, rules, orders and other pro- ceedings ■which are grantable of course and applied for, or had by the parties or their solicitors, in all causes pending in equity, in pursuance of the " equity rules prescribed by the supreme court.^ Parties to suits are, by virtue of the mere force and authority of the equity rules, entitled, as a matter of absolute right, to all orders and proceedings grantable of course, and the clerk is required by the rules to grant and enter them, on rule-days or in vacation, according as the rules may direct, without any notice to the adverse party, or any order of the court or a judge .thereof.^ All motions and applications in the clerk's office for the issuing of mesne process and final pro- cess to enforce and execute decrees; for filing bills, answers, pleas, demurrers and other pleadings; for making amendments to bills and answers; for taking bills ^w confesso; for filing, exceptions, and for other proceedings in the clerk's office which do not, by the equity rules, require any allowance or order of the court or of any Judge thereof, shall be deemed motions and applications grantable of course by the clerk of the court.' Following are some of the motions and applica- tions grantable by the clerk, viz. : If defendant make default in filing his plea, demurrer or answer, the clerk may make and enter an order that the bill be taken pro confesso; * an order to amend plaintiff's bill before answer, plea or demurrer filed thereto;^ an order to amend the answer of defendant before a replication is filed thereto, or the cause is set down for hear- 1 Equity Rule 2. * Equity Rules 18, 34, 46. 2 Equity Rules 1, 8. * Equity Rule 28. 3 Equity Rule 5. 28 FEDERAL EQUITY PEOCEDUEE. [§ 27. ing upon bill and answer j^ an order dismissing the plaintiff's bill, upon his failure to file his replication to defendant's an- swer at the time required by the rules ; ^ or upon his failure to reply to any plea or to set down any plea or demurrer for ar- gument at the time required by the rules;' an order setting down for argument any plea or demurrer,* or any exception to any answer for insufficiency,' or a suggestion by defendant in his answer that the bill is defective for want of parties.* But any order, rule or other proceeding granted by the clerk may be suspended or altered or rescinded by any judge of the court, upon special cause shown.' Upon the filing of a bill, the clerk shall, upon the application of plaintiff, issue the process of sub- poena thereon, as of course, requiring the defendant to appear and answer the exigencies of the bill ; ' and he may, in like manner, issue writs of assistance, execution, attachment, or sequestration, for the purpose of compelling obedience to any interlocutory or final order or decree of the court;' he may issue commissions to take testimony;'' and he may issue sub- poenas for witnesses within his district to appear and testify before any commissioner, master or examiner." § 27. Orders by the judges at chambers and at rules. — In order to give flexibility to the system of interlocutory proced- ure for the speeding of causes to a final hearing, and to meet every exigency, and relieve equity procedure in the circuit courts of the United States from the intolerable delays which were so long the reproach of the system of procedure in the High Court of Chancery in England, it is provided by both rule and statute that : Any judge of the circuit court, as well in vacation as in term time, may at chambers, or on the rale- days at the clerk's office, make and direct all such interlocutory orders, rules and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the circuit courts could make and direct the 1 Equity Rule 60. e Equity Rule 53. 2 Equity Rule 66; Robinson v. Sat- ^ Equity Rule 5. terlee, 3 Sawy. 134j Fed. Cas. No. » Equity Rules 7, 11, 12. 11,967. 9 Equity Rules 7, 8, 9, 93. 3 Equity Rule 38. lo Equity Rule 67. « Equity Rules 33, 38. u Equity Rule 7& s Equity Rule 6a § 27.] INTEELOCUTOET PEOCEDTTEB. 29 same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to ap- pear and show cause to the contrary, at the next rule-day there- after, unless some other time is assigned by the judge for the hearing.! It would seem that, under the authority, of this rule and statute, keeping constantly in view the policy and intend- ment of the interlocutory procedure, a judge of the circuit court has the power in vacation at chambers, and at rules in the clerk's office, to make and direct any interlocutory order, rule or other proceeding, preparatory to the hearing of any equity cause upon its merits; all that is rtquired to authorize the order or proceeding is that it be preparatory to the hearing of the cause upon its merits, and reasonably adapted to that end, and not in violation of the spirit and policy of the rules. A judge may at chambers, or on a rule-day at the clerk's office, make an order referring any bill, answer or other pleading to a mas- ter for impertinence or scandal ; ^ an order allowing plaintiff to amend his bill, after answer, plea or demurrer filed thereto, and either before or after replication filed;' an order sustain- ing or overruling a plea or demurrer, and allowing the parties to amend, or further time to plead ; * an order allowing defend- ant further time to plead, answer or demur to the original bill," or further time to file a supplemental answer, after plaintiff has filed an amendment to his bill ; ^ an order upon a sugges- tion made by the defendant in his answer that plaintiff's bill is defective for want of parties, and set down for argument upon that objection only, within fourteen days after answer filed ;^ an order allowing defendant to amend his answer after replica- tion filed, or after the cause has been set down for hearing upon bill and answer ; * an order appointing guardians ad litem to defend suits for infants or other persons incapable of defending for themselves.' A judge of the court may on any rule-day grant leave to file a supplemental bill, or a bill in the nature of a supplemental bill;'" and may, on any rule-day, hear argu- ment upon exceptions filed to an answer for insufficiency, and 1 TJ. S. E. S., sec. 638 ; Equity Rule 3. « Equity Rule 46. 2 Equity Rules 26, 27. ' Equity Rule 52, ' Equity Rules 29, 45. « Equity Rule 60. . 4 Equity Rules 38, 34, 35, 38. » Equity Rule 87. 'Equity Rule 18. lo Equity Rule 57. 80 FEDERAL EQTJITl' PEOCEDUEE. '[§ 28. make an order overruling or sustaining the same.' Inasmuch as the taking and stating of an account by a master is a pro- ceeding preparatory to the hearing of the cause upon its merits, and the supreme court has held that references to masters should be upon interlocutory order, and has with emphasis ex- pressed its disapproval of the practice of referring causes to a master upon final decree, it would seem that a judge is author- ized to make an order at chambers or on a rule-day, referring a cause to a master to take and state an account, or for other purposes within the scope of the duties of a master.^ The judges of the circuit court have power at chambers to issue writs of ne exeat repuhlica, but suits in equity must be first commenced and satisfactory proof made that defendant designs quickly to depart from the United States;' and they may at chambers grant writs of injunction, and pending application for the writ may make a temporary restraining order with or without se- curity.* § 28. The order book. — In the interlocutory procedure, which has been prescribed by the rules, preparatory to the hearing of causes upon their merits, nothing is of greater im- portance, nor more worthy of attention, than the order book; it is a wise, judicious and useful contrivance ; it performs the double functions of a record of all motions, rules, orders and other proceedings made and directed in the clerk's oflBce in vacation, or on rule-days, or at chambers, and that of the means of notice to the parties and their solicitors of the proceedings entered therein ; it is a record and a notice. The rules direct that all motions, rules, orders and other proceedings made and directed at chambers, or on rule-days at the clerk's office, whether special 6r of course, shall be entered by the clerk in an order book, to be kept at the clerk's office, on the day when they are made and directed; which book shall be open at all office hours to the free inspection of the parties in any suit in equity and their solicitors. Every step taken in a cause should, at the time it is had and done, be entered in the order book, lEquityRule63; La Vega v. Laps- 21; Seymour v. Hazard, 1 Johns, ley, 1 Woods, 438, Fed. Gas. No. 8,123. Ch. 1. 2 Forgay y. Conrad, 6 How. 301. < Equity Rule 55; U. S. K. S., sees. »U. S. R. S., sec. 717; Equity Rule 717, 718, 719. §§ 29, 30.] INTEELOCUTOET PEOCEDUEE. 31 under the appropriate style of the case, from the filing of the bill to the setting of the cause down for final hearing.' § 29. Same — Notice. — Except in cases where personal or other notice is specially required or directed, entry in the order book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices and other proceedings entered in the order book, touching any and all the ma,tters in the suits to and in which they are parties and solicitors. And notice to the solicitor shall be deemed notice to the parties for whom they appear and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. "W here the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders or other proceedings not requir- ing personal service on the parties, in their discretion. All motions for rules or orders or other proceedings, which are not grantable of course or without notice, shall, unless a different time be assigned by a judge of the court, be made on a rule- day, and entered in the order book, and' shall be heard at the rule-day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused, in his discretion. A party is not charged with notice of the filing of pleas, demurrers and other proceedings unless the same are entered in the order book.^ § 30. Policy and method of the interlocutory procedure. — The policy and purpose of the interlocutory procedure, author- ized by the equity rules to be had before the clerk in vacation and on rule-days, and before the judge at chambers, are to ad- vance causes to a speedy hearing on their merits. This policy is expressly declared by the rules and the statutory provision; it is for this purpose that the circuit courts of equity shall be deemed always open; and this intendment should be kept steadily in view in the interpretation and application of the 1 Equity Rules 2, 4 gon Cent. Ey. Co., 1 Sawy. 63, Fed. 2 Equity Kules 4 6; Newby v. Ore- Cas. No. 10,145. 32 FEDERAL EQUITY PBOOEDTJEE. [§ 31. rules.' As to the method, it is the intention that a cause shall be advanced at least one step on every rule-day, and that spe- cial applications shall be made to the judge at chambers as often as the exigencies of causes may require, to dispose of all dilatory matters, aid the parties in perfecting the pleadings, and remove all obstructions out of the way of the speedy and orderly progress of the suit to a final hearing on its merits. In consonance with this policy and method, upon the filing of the bill the writ of subpoena is issued and made returnable, not to a term of the court, but returnable into the clerk's office the next rule-day, or the next rule-day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof ; ^ and the appearance day of the defendant shall be the rule-day to which the subpoena is made return- able, provided he has been served with process twenty days before that day; otherwise his appearance shall be the next rule-day succeeding the rule-day when the process is rettirn- able ; and the defendant shall on the appearance day, either personally or by his solicitor, enter his appearance, which shall be entered on the day thereof by the clerk in the order book.' §31. Same — When pleadings are to be filed. — It is the duty of defendant, unless otherwise specially ordered by a judge of the court, to file his plea, demurrer or answer to the bill in the clerk's office on the rule-da}*' next succeeding that of entering his appearance ; * and if defendant does not file a demurrer nor a plea, but files an answer which the plaintiff deems sufficient and free from impertinence and scandal, it is the duty of plaintiff to file the general replication to the an- swer on or before the next rule-day, and put the cause at issue, and make it ready for the proofs;* and three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court or a judge thereof shall en- large the time.* Where there is filed no demurrer nor plea, but defendant files a sufficient answer, and the plaintiff files his replication, on the rule-days required by the rules, the cause 1 U. S. R. S.,sec. 638; Equity Rules 1, * Equity Rule 18. 2, 3, 4 5, 6. 6 Equity Rule 66. 2 Equity Rule IL 6 Equity Rule 69. 3 Equity Rule 17. § 32.] INTEELOCUTOEY PEOCEDTJEE. 33 is at issue in two months after the defendant enters his appear- ance; and, with the three months allowed to take testimony, only five months are required to prepare the cause for hearing on its merits. If defendant files a plea, it is the duty of plamt- iff to reply to it, or set it down for argument upon its legal suificiency not later than the rule-day next, succeeding that upon which it is filed. ' If plaintiff, deeming the plea a good and sufficient bar to the bill, files the general replication thereto, the cause is put at issue and prepared for hearing upon its merits with the same speed and expedition as in the case of an answer.^ If defendant files a ro- chevn ami; subject, however, to such ordei* as the court may direct for the protection of infants and other persons." ' In suits by a married woman her husband should be joined in all cases where they have no conflicting interests; but if their in- terests are opposed she should file her bill by her next friend and make her husband a party defendant; and where a suit is brought against a married woman, her husband should, as a rule, be joined as a party defendant.' 1 Equity Rule 87. Butler, 6 Fed. R. 228; Taylor v, 2 1 Daniell, 118^172, 205-319; Bein Holmes, 14 Fed. R. 498. V. Heath, 6 How. 228; Douglas v. OHAPTEE,V. PLACE OF BRINGING SUIT — TERRITORIAL JURISDICTION. (a) General Prdjoiples. § 68. Definition of jurisdiction. 69. Civil and common-law classifi- cation of actions — Local and transitory actions — Real, per- sonal and mixed actions.* 70. Title to real estate controlled by the lex loci rei sitce. 71. Suits for the recovery of, or for damage to, real property, lo- cal. 73. Same — Trespass quareclausum. 73. The distinction between local and transitory actions pre- served in federal procedure. 74. Same — Ruling in Doidson v. Matthews approved by the United States supreme court. 75. Suits in equity are either local or transitory. 76. Same — Railroad foreclosure suits. 77. Distinction between local and transitory actions not af- fected by federal procedure act. (6) History op Federal Legisla- tion ON Territorial Jurisdic- tion. 78. Territorial jurisdiction con- trolled by federal legisla- tion — Act of September 34, 1789. 79. Same — Act of May 4, 1858. 80. Same— Act of June 1, 1873. 81. Same — United States Revised Statutes of 1878. 83. Same— Act of March 3, 1875. § 83. Same — Acts of March 3, 1887, and August 13, 1888. (e) The Present State op the Law, 84 General statutes in force in re- lation to territorial jurisdic- tion. 85. Same — Qucere: Has section 740, United States Revised Statutes, been repealed? 86. The place of beinging suit — The general rule. 87. Same — When jurisdiction is based on diverse citizenship. 88. Same — Suits against domestic corporations. 89. Same — Suits against railroad corporations. 90. Same — Suits against national banking associations. 91. Same — Suits against aliens and foreign corporations. 93. Same — Suits arising under pat- ent laws of the United States. 93. Same — Suits arising under the trade-mark laws of the United States. 94. Same — Suits under laws of the United States to protect com- merce. 95. Same — Persons suing or sued in a representative capacity. 96. Local suits under section 8, act of March 3, 1875. 97. Where ancillary or dependent suits are to be brought. 98. The right to be sued in a par- ticular district waived by general appearance. (a) General Pbinoiples. § 68. Definition of jurisdiction. — The term "jurisdiction," as applied to courts of justice, signifies, (1) primarily, the power 76 FEDEEAL EQUITY PEOCEDUEE. [§ 69. and authority vested in them by law to hear and determine causes; to adjudicate upon the rights of parties in the subject- matter of litigation between them : this may be properly called the substantive jurisdictional power of courts.^ And (2) the term " jurisdiction " signifies, secondarily, the district or territorial limits within which the power and authority of courts of jus- tice are to be exercised; the venue of actions, or the place of bringing suits, or where suits should be brought and tried: it is called the territorial jurisdiction of courts.^ In discussing the jurisdiction of the federal courts, in both the text-books and in adjudicated cases, these two meanings or significations of the word " jurisdiction " have frequently been confused and confounded. This chapter will be devoted to the discussion of the territorial jurisdiction of the federal courts, or the place of bringing suit, and this matter has been kept distinct, as far as possible, from the substantive jurisdiction of the courts. § 69. Civil and common-law classification of actions — Local and transitory actions — Beal^ personal and mixed actions. — The legal principles and doctrines which regulate and control the territorial jurisdiction of courts constitute a fundamental element in both national and international juris- prudence, and the subject has engaged the patient thought and has been illuminated by the learning and genius of the most eminent and erudite publicists and jurists known in the history of civilization ; and these principles and doctrines are closely related to the great principle, that every nation has ex- clusive jurisdiction and sovereignty over all property, both movable and immovable, situated within its territory, and has the sole right to regulate and control its ownership, use, " trans- fer, descent and testamentary disposition," and to administer justice in all places within its territory. In both the Eoman civil law and the English common law the principles which determined the territorial jurisdiction, or place where suits should be brought and tried, arose logically out of the inher- ent nature and character of the suits themselves, and became 1 United States v. Arredondo, 6 noyer v. Nefl, 95 U.S. 714^-748; North- Pet 691; Rhode Island v. Massachu- em Indiana R Ca v. Michigan Cen- setts, 13 Pet. 657, tral R. Co., 15 How. 240. 2 Bissell V. Briggs, 9 Mass. 462; Pen- § 69.] PLACE OF BRINGING SUIT. t7 permanent and fundamental elements in those two great sys- tems of jurisprudence and their derivative systems. Both the Eoman and English jurisprudence divided actions into real, personal and mixed, and also into local and transitory actions; and the same distinctions and principles as to the classification of remedies pervade both systems, though there is some differ- ence as to details.^ In both the state and federal courts matters of jurisdiction are largely regulated and^on trolled by statute; but those stat- utes, as a rule, must be construed and applied in the light of the nature and character of suits and the settled maxims and principles of jurisprudence in relation to the jurisdiction of courts ; ^ and, as our system of remedial justice is based upon the English common-law and equity systems, it is important to present a full and clear statement of the common-law classi- fication of actions, which can best be shown by statements from the common-law text-books. At common law " actions are commonly divided into crim- inal, or such as concern pleas of the crown, and civil, or such as concern common pleas. And these latter are again divided into real, personal and mixed actions. In a real action the pro- ceedings are in rem for the recovery of real property only; in a personal action they are in personam for the recovery of specific articles, or of some pecuniary satisfaction or recom- pense ; and in a mixed action they are in rem et personam, for the recovery of real property and damages for withholding it. Personal actions are ex contractu vel ex delicto; being founded upon contracts or for wrongs independently of contract." ' And " the venue in personal actions, or county where the action is laid and intended to be tried, is local or transitory. When the action could only have arisen in a particular county it is local, and the venue must be laid in that county ; for if it be laid elsewhere the defendant may demur to the declaration, or the plaintiff, on the general issue, will be nonsuited at the trial. Such are all real and mixed actions and actions of ejectment and trespass qua/re clausum fregit. But where the action might have arisen in any county, as upon contracts, it is tran- sitory, and the plaintiff may in general lay the venue wher- 1 Story on Conflict of Laws, ch. 14 » 1 Tidd's Practice, L 2 Casey v. Adams, 103 U. S. 66. 78 FEDKEAL EQUITY PKOCBDUEE. [§ 69. ever he pleases; subject, however, to its being changed by the court if not laid in the very county where the action arose." ^ " The venue is either local or transitory; if local it must be laid and the cause tried in the county in which the cause of ac- tion arose or the injury was really committed. . . . And if the venue be transitory it may be laid in the declaration and the cause tried in any county, subject also then to its being changed by the court in some cases if not laid in the county where the cause of action really arose. . - - When the cause of action could only have arisen in a particular place or county it is local and the venue must be laid therein. As in real actions, mixed actions, waste, qua/re imjaedit, or ejectment for the recovery of the seisin or possession of land or other real property. So actions, though merely for damages occa- sioned by injuries to real property, are local, as trespass on the case for nuisance, or waste, to houses, lands, water-courses, right of common, ways, or other real property, unless there were some contract between the parties on which to ground an action. And if the land be out of this kingdom the plaintiff has no remedy in the English courts; at least if there be a court of jus- tice in the country in which the land is situate to which he may resort. . . . Where, however, an injury has been caused by an act done in one cotmty to land situate in an- other, or whenever the action is founded upon two or more material facts which took place in different counties, the venue may be laid in either. The venue in replevin is local. . . . A scire facias on a judgment, being only a continuation of a former suit and not an original proceeding, must be laid in the county where the venue was first laid, the defendant being sup- posed to reside in that county. Debt for arrears of a rent charge against the pernor of the profits, not being the original grantor, is local, the defendant being chargeable in respect of his possession and not on the contract. . In all actions for injuries ex delicto to the person or to personal property the venue is ip general transitory, and may be laid in any county, though committed out of the jurisdiction of our courts or of the king's dominions. ... In general, also, actions founded upon contracts are transitory, though made and were stipulated » 1 Tidd's Practice. 369. § To.] PLACE OF BEINQING SUIT. 79 to be performed out of the kingdom. . . . In an action upon a lease for non-payment of rent or other breach of cove- nant, when the action is founded on the privity of contract, it is transitory and the venue may be laid in any county ; but when the action is founded on the;privity of estate it is local, and the venue must be laid in the county where the estate lies."^ § 70. Title to real estate controlled by the lex loci rei sitae. — It is an inflexible rule of the English common law, and a principle of universal application in American jurisprudence, that the acquisition and ownership of real estate, and all the means by which the title to»real estate is transferred from one person to another, whether by deed, or judiqial proceedings, or descent, or will and testament, and the construction and effect of all instruments intended to convey real property, are gov- erned and controlled exclusively by the laws of the country or state where the property is situated ; ^ and such laws of the several states, being rules of property, are binding upon and are followed by the federal courts ; ' and no action or suit can be maintained in one state or country to recover the title or , possession of land situated in another country or state.* 1 1 Chitty, PI. (ed. 1840), 267-269. 264; St. John v. Chew, 12 Wheat. 153; 2Stoiy, Conflict of Laws, oh. 10; Thatcher v. Powell, 6 Wheat. 119; United States v. Crosby, 7 Cranch, Henderson v. Griffin, 5 Pet. 151; 115; Clark v. Graham, 6 Wheat. 577; Williamson v. Suydam, 6 Wall. 723; Kerr v. Moon, 9 Wheat. 566; Mc- Beauregard v. New Orleans, 18 How. Cormick v. SuUivant, 10 Wheat. 192; 497; Eoss v. M'Lung, 6 Pet. 283; Will- Brine V. Insurance Co., 96 U. S. 635; iams v. Kirtland, 13 Wall 806; Smith Robertson v. Pickrell, 109 U. S. 608; v. McCann, 24 How. 898; Morgan v. Olcott V. Bynum, 17 Wall. 44; Mc- Curtenius, 19 How. 8; Bondurant v. Goon V. Scales, 9 Wall. 23; Sneed v. Watson, 108 U. S. 281; Blanchard Ewing, 5 J. J. Marsh. (Ky.) 460; s. C, v. Brown, 3 Wall. 245; Lippincott v. 22 Am. Dec. 47; Baxter v. Willey, 9 Mitchell, 94 U. S. 767; Gage v. Pum- Vt. 276; s. C, 31 Am. Dec. 623; Mid- pelly, 115 U. S. 454; Ridings v. John- dleton V. McGrew, 23 How. 45 ; Byers son, 128 U. S. 313 ; Hanrick v. Patrick, V. McAuley, 149 U. S. 608. 119 U. S. 156; Clement v. Packer, 125 3 Brine v. Insurance Co., 96 U. S. 635 ; U. S. 309 ; Gormley v. Clark, 134 U. S. Olcott V. Bynum, 17 Wall. 44; United 338; Halstead v. Buster, 14!0 U. S. 373; States V. Crosby, 7 Cranch, 115; Clark Cross v. Allen, 141 U. S. 528; Peters V. Graham, 6 Wheat. 577; McGoon v. v. Bain, 133 U. S. 670; Arrowsmith v. Scales, 9 Wall. 33; Robertson v. Gleason, 129 U. S. 86; Parker v. Pickrell, 109 U. S. 608; Butz v. Musca- Dacres, 130 U. S. 43. tine. 8 Wall 575; Shelly v. Guy, 11 < Watts v. Waddle, 6 Pet. 389; Wheat. 361; Christy v. Pridgeon, 4 Northern Ind. R. R. Co. v. Michigan Wall. 196; League v. Egery, 34 How. Cent. R R. Co., 15 How. 333; Story, 80 FEDEEAL EQUITY PEOCEDUEE. [§§ 71, 72. § 71. Suits for the recovery of, or for damage to, real prop- erty, local. — All real and mixed actions are local ; all actions for the recovery of the seisin and possession of land or other real property, and all actions for the recovery of damages far injuries to real property, are local; such as actions of ejectment, qua/re dausum f regit, trespass or trespass on the case for nui- sance, or waste, to houses, lands, water-courses, right of com- mon, ways, or other real property ; and all such actions must be brought in the county or district where the land is situated.' § 72. Same — Trespass quare clansnm f regit — Doulson T. Matthews. — By the rules of the common law, from the time of its most ancient annals down to the present time, trespass quare clcmsumf regit, or suit for damages for trespass to lands, has been classed as a local action. Lord Mansfield, one of Eng- land's greatest judges, being impressed by the inconvenience and failure of justice frequently caused by not allowing this action to follow the person of the defendant, attempted to break down the classification of this action as local, and con- vert it into a transitory action ; and he actually held in two cases decided by him at nisiprius that an action might be sus- tained in England for trespass to land lying in the foreign dominions of the British crown. But the influence of the learn- ing and genius of even Lord Mansfield was not sufficient to overturn the ancient rule. In 1792 the king's bench over- ruled the two cases decided by Lord Mansfield at nisi prius, and affirmed the ancient common-law rule. That ruling was made in the case of Doulson v. Matthews,^ which was an action of trespass for entering plaintiff's dwelling in Canada and ex- pelling him. The declaration contained two counts: the first for the trespass upon the land, and the second for taking away the plaintiff's goods; there was no proof to sustain the second Conflict of Laws, sec. 543; Massie v. 408; Cragin v. Lovell, 88 N. Y. 263; Watts, 6 Cranch, 148. Northern Ind. E. R. Co. v. Michigan 11 Chitty, Pleading (ed. 1840), 367; Cent. R. E. Co., 15 How. 233; Ellen- 1 Tidd's Practice, 869; Eoach v. Dam- wood, Adm'r, y. Marietta Chair Co., ron, 2 Humph. (Tenn.) 435; Living- 158 U. S. 105-108; Story on Conflict ston V. Jefferson, 1 Brook. 303, Fed. of Laws, sec. 538; McKenna v. Fisk, Cas. No. 8,411; Watts v. Kinney, 6 1 How. 341-277. Hill (N. Y.), 82; American Union 24 Term (Durnford & East) Ee- Telegraph Co. v. Middleton, 80 N. Y. ports, 503. '§ T3.] PLACE OF BRINGING SUIT. 81 count, and the only question in the case was whether or not an action could be sustained in the courts of England for a tres- pass to lands in Canada. At the trial Lord Kenyon, Chief Jus- tice, was clearly of opinion that the cause of action stated in the first count was local, and, there being no proof to sustain the second count, the plaintifif was nonsuited. A motion was made to set aside the nonsuit, which the court refused, Bul- ler, Justice, saying: "It is now too late for us to inquire whether it were wise or politic to make a distinction between transitory and local actions ; it is sufficient for the courts that the law has settled the distinction, and that an action quare clausum f regit is local. "We may try actions here which are in their nature transitory, though arising out of a transaction abroad, but not such as are in their nature local." In an early case, the supreme court of Tennessee, speaking by Green, Justice, said: "This is an action of trespass for breaking and entering the plaintiff's close. In its nature it is a local action, the court of the county in which the land is sit- uated alone having jurisdiction. In such action it is necessary that the venue be proved. A verdict wiU not cure a deficiency of proof. If, as argued, we were to presume that there was proof of this fact, because the jury have found a verdict affirm- ing its existence, why might we not in every case presume there was evidence sufficient to justify the verdict ? If that were so, no new trial could be obtained on account of a defi- ciency of proof. The record asserts that it embodies all the evidence that was given in the case. There is in it no evidence that the trespass was committed in Knox county. On that account the judgment must be reversed and a new trial aw^arded." ^ § 73. The distinction between local and transitory actions preserved in federal procedure. — The jurisdiction of the fed- eral courts is derived from the federal constitution and the laws passed in pursuance thereof by congress; but the federal statutes prescribing the place where suits shall be brought are framed upon the theory that the distinction between local and transitory actions, and the body of legal rules arising out of such distinction, constitute an essential and fundamental ele- 6 lEoach V. Damron, 3 Humph. (Tenn.) 427. 82 FEDEEAL EQUITY PEOCBDUKE. [§ 73. ment in the system of remedial justice administered by the federal courts, and, in the practical administration of justice, the courts have so construed and applied the statutes. So that it may be safely stated as a proposition of universal applica- tion that the substantial doctrines and principles relating to the distinction between local and transitory actions are en- forced in suits in the federal courts.* The case of Livingston v. Jefferson, decided December 5, 1811, in the United States circuit court for the district of Vir- ginia, -was an action of trespass g"w<3»'e clausumf regit, brought by Edward Livingston, a citizen of New York, against Mr. Jefferson, a citizen of the state of Virginia, and a former pres- ident of the United States, for removing the plaintiff from the Batture in ISTew Orleans, in the territory of Orleans, but which at the time the case was heard was the state of Louisiana; the trespass was alleged to have occurred at the city of New Or- leans, and the venue was then laid, under a videlicet, at Kich- mond, in the county of Henrico and district of Virginia; by proper pleading the question of jurisdiction was raised and presented by the defendant; at that time the only federal stat- ute in force prescribing the place where suit should be brought was the eleventh section of the original judiciary act, which provided : " But no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against an inhabitant of the United States by any orig- inal process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serv- ing the writ." ^ The circuit court held that the action was local, and that it had no jurisdiction of a trespass committed on lands lying within the United States, but beyond the limits of the district for which the court was held, although the tres- passer be a resident of the district and found therein. In de- ciding upon the question of jurisdiction, Chief Justice Marshall, sitting as circuit justice, said : " The sole question now to be lU. S. E. S., sees. 738, 739, 740, 741, U. S. 105-108; Northern Ind. R. R. 743; Livingston v. JefEerson, 1 Brock. Co. v. Michigan Cent. E. R. Co., 15 203, Fed. Cas. No. 8,411; McKenna v. How. 238. Fisk, 1 How. 341-249; Elleawood, 2 1 U. S. Stat, at L., ch. 20, sec. 11, Adm'r, v. Marietta Chair Co., 158 p. 78. § '''3.] PLACE OF BEINGING- SUIT. 83 decided is this : Can this court take cognizance of a trespass committed on lands lying within the United States, and with- out the district of Virginia, in a case where the trespasser is a resident of and is found within the district? I concur with my brother judge in the opinion that it cannot." . . . " The doctrine of actions local and transitory has been traced wp to its origin in the common law, and, as has been truly stated on both sides, it appears that originally all actions were local; that is, that according to the principles of the common law every fact must be tried by a jury of the vicinage. The plain consequence of this principle is, that those courts only could take jurisdiction of a case who were capable of directing such a jury as must try the material facts on which their judg- ment would depend. The jurisdiction of the courts, therefore, necessarily becomes local with respect to every species of ac- tion. But the superior courts of England having power to direct a jury to every part of the kingdom, their jurisdiction could be restrained by this principle only to cases arising on transactions which occurred within the realm. Being able to direct a jury either to Surrey or Middlesex, the necessity of averring in the declaration that the cause of action arose in either county could not be produced in order to give the court jurisdiction, but to furnish a venire. For the purpose of juris- diction it would unquestionably be sufficient to aver that the transaction took place within the realm. This, however, being not a statutory regulation, but a principle of unwritten law, which is really human reason applied by courts, not capri- ciously, but in a regular tra;n of decisions, to human affairs, according to the circumstances of the nation, the necessity of the times, and the general state of things, was thought suscep- tible of modification, and judges have modified it. They have not changed the old principle as to form. It is still necessary to give a venue ; and where the contract exhibits on its face evidence of the place where it was made, the party is at liberty to aver that such place lies in any county in England. This is known to be a fiction. Like an ejectment, it is the creature of the court, and is moulded to the purposes of justice, according to the view which its inventors have taken of its capacity to effect those purposes. It is, however, of undeniable extent. It has not absolutely prostrated all distinctions of place, but 84 ' FEDEEAL EQUITY PEOCEDUKE, [§ Y3, has certain limits prescribed to it, founded in reasoning satis- factory to those who have gradually fixed these limits. It may well be doubted whether at this day they are to b© changed by a judge not perfectly satisfied with their extent. This fiction is so far protected by its inventors that the aver- ment is not traversable for the purpose of defeating an action it was invented to sustain; but it is traversable whenever such traverse may be essential to the merits of the cause. It is al- ways traversable for the purpose of contesting a jurisdiction not intended to be protected by the fiction. " In the case at bar it is traversed for that purpose, and the question is whether this be a case in which such traverse is sustainable ; or, in other words, whether courts have so far ex- tended their fiction as, by its aid, to take cognizance of tres- passes on lands not lying within those limits which bound their process. They have, without legislative aid, applied this fic- tion to all personal torts, and to aU contracts wherever exe- cuted. To this general rule contracts respecting lands form no exception. It is admitted that on a contract respecting lands an action is sustainable wherever the defendant may be found ; yet, in such a case, every difiiculty may occur which presents itself in an action of trespass. An investigation of title may become necessary. A question of boundary may arise, and a survey may be essential to the full merits of the cause; yet these diificulties have not prevailed against the jurisdiction of the court. They have been countervailed, and more than coun^ tervailed, by the opposing consideration, that if the action be disallowed the injured party may have a clear right without a remedy in a case where the person who has done the wrong, and who ought to make the compensation, is within the power of the court. That this consideration should lose its influence, where the action pursues a thing not within the reach of the court, is of inevitable necessity; but for the loss of its influ- ence, where the remedy is against the person and can be af- forded by the court, I have not yet discerned a reason, other than a technical one, which can satisfy my judgment. If, how- ever, this technical distinction be firmly established, if all other judges respect it, I cannot venture to disregard it. " The distinction taken is that actions are deemed transitory, where transactions on which they are founded might have § T3.] PLACK OF BEINGING SUIT. 85 taken place anywhere; but are local where their cause is in its nature necessarily local. If this distinction be established ; if ju(Jges have determined to carry their innovation on the old rule no further; if, for a long course of time, under circum- stances which have not changed, they have determined this to be the limit of their fiction, it would require a hardihood which I do not possess, to pass this limit. This distinction has been repeatedly taken in the books and recognized by the best ele- mentary writers, especially Blackstone, from whose authority no man will lightly dissent. 3 Bl. Com. 294. See also Mr. Chitty's note (4) in his edition of Blackstone (vol. 2, p. 233). Se expressly classes an acUon for trespass on lands with those actions which demand their possession, and which are local, and makes only those actions transitory which are brought on occurrences that might happen in any place. From the cases which support this distinction, no exception, I believe, is to be found among those that have been decided in court on solemn argument. One of the greatest judges who ever sat on any bench, and who has done more than any other to remove those technical impediments which grew out of a different state of society, and too long continued to obstruct the course of sub- stantial justice, was so struck with the weakness of the distinc- tion between taking jurisdiction in cases of contract respecting lands, and of torts committed on the same lands, that he at- tempted to abolish it. In the case of Mostyn v. Fabrigas, 1 Cowp. 166, Lord Mansfield stated the true distinction between proceedings which are in rem, in which the effect of a judg- ment cannot be had unless the thing lie within the reach of the court, and proceedings against the person where damages only are demanded. But this opinion was given in an action for a personal wrong, which is admitted to be transitory. It has not, therefore, the authority to which it would be entitled had this distinction been laid down in an action deemed local. It may. be termed an obiter dictum. He recites in that opinion two cases decided by himself, in which an action was sustained for trespass on lands lying in the foreign dominions of his Britannic majesty; but both those decisions were at nisiprius. And though the overbearing influence of Lord Mansfield might have sustained them on a motion for a new trial, that motion never was made, and the principle did not obtain the sanction 86 FEDERAL EQUITY PEOCBDTJEE. [§ T3. of the court. In a subsequent case [Doulson v. Matthews (1792), 4 Durn. & E., 4 Term E. 503), these decisions are expressly re- ferred to and overruled, and the old distinction is affirmed. "It has been said that the decisions of British courts, mad© since the Kevolution, are not authority in this country. I admit it — but they are entitled to that respect which is due to the opinions of wise men who have maturely studied the subject they decide. Had the regular course of decisions previous to the Eevolutioa been against the distinction now asserted, and had the old rule been overthrown by adjudications made sub- sequent to that event, this court might have felt itself bound to disregard them ; but where the ancient rule has been long preserved, and a modern attempt to overrule it has itself been overruled since the Kevolution, I consider the last adjudication in no other light than as the true declaration of the ancient rule. " According to the common law of England, then, the dis- tinction taken by the defendant's counsel between actions local and transitory is the true distinction, and an action of qimre. clausu7rifregit is a local action. This common law has been adopted by the legislature of Virginia. Had it not been adopted I should have thought it in force. When our ancestors mi- grated to America, they brought with them the common law of their native country so far as it was applicable to their new situation ; and I do not conceive that the Revolution would, in any degree, have changed the relations of man to man, or the law which regulated those relations. In breaking our political connection with the parent state, we did not break our connec- tion with each other. It remained subsequent to the ancient rules, until thdse rules should be changed by competent au- thority. But it has been said that this rule of the common law is impliedly changed by the act of assembly which directs that a jury shall be summoned from the bystanders. "Were I to discuss the effect of this act in the courts of the state, the in- quiry whether the fiction already noticed was not equivalent to it in giving jurisdiction would present itself. There are also other regulations, as that the jurors should be citizens, which would deserve to be taken into view. But I pass over these considerations, because I am decidedly of the opinion that the jurisdiction of the courts of the United States depends exclusively on the constitution and laws of the United States. § 74.] PLACE OF BEINGING SUIT. 87 "In considering the jurisdiction of the circuit courts as de- fined in the judicial act (1 Stat. 73), and m the constitution which that act carries into execution, it is worthy of observa- tion that the jurisdiction of the court depends on the character of the parties, and that only the court of that district in which the defendant resides, or is found, can take jurisdiction of the cause. In a court so constituted, the argument drawn from the total failure of justice, should a trespasser be declared to be only amenable to the court of that district in which the land lies, and in which he will never be found, appeared to me to be entitled to peculiar weight. But according to the course of the common law, the process of the court must be executed in order to give it the right to try the cause, and consequently the same defect of justice might occur. Other judges have felt the weight of this argument, and have struggled ineffectu- ally against the distinction which produces the inconvenience of a clear right without a remedy. I must submit to it. The law upon the demurrer is in favor of the defendant." ' § 74. Same — Rnling in Donlson v. Matthews approved by United States supreme court. In the year 1843 the case of McKenna v. Fish^ " a case in all its particulars like " Doulson V. Matthews, was decided by the supreme court of the United States, in which the ruling in the latter case was approved and adopted, and declared to be the settled doctrine in the courts of the states of the American Union. McKenna sued Fisk in the circuit court of the United States for the District of Co- lumbia and county of Washington for trespass to both real and personal property situated in the county of Allegany, state of Maryland, laying the venue, under a videlicet, in the county of Washington, District of Columbia. The trial judge excluded all evidence offered by plaintiff of the trespass upon both the real and personal estate, upon the ground that the trespasses were committed without the territorial jurisdiction of the court. The supreme court held that the counts of the declaration averring a trespass upon the personal property stated a transi- tory action, and those counts in the declaration averring tres- pass upon the real estate stated a local action, and that the circuit court had jurisdiction of the former, but not of the latter. 1 Livingston v. Jefferson, 1 Brock. 2 1 How. (U. S.) 241-349. SOS, Fed, Cas. No. 8,411. 88 FEDEEAL EQUITY PEOOEDTJEE. [§ 74. The case was reversed and remanded for a trial upon the counts of the declaration setting up a trespass upon the personal property, and in the course of its opinion the court said: "The evidence offered as to the local count was certainly not com- petent; but that is because the venue is local, and cannot be changed into any other county than where the trespass to the realty was done, and never can be carried out of the sovereignty in which the land is. But it is an established rule that in transitory actions a venue is only necessary to be laid to give a place for trial. . . . The courts in the District of Co- lumbia have a like jurisdiction in trespass upon personal prop- erty with the courts in England and in the states of this Union, and, in the absence of statutory provisions, in the trial of them must apply the same common-law principles which regulate the mode of bringing such actions, the pleadings, and the proofs." The same doctrine was announced by the TJnited States su- preme court in Ellenwood v. Marietta Chair Co.^ decided in May, 1895. That suit was brought in the circuit court of the United States for the southern district of Ohio for trespass to land situated in West Yirginia, and the cutting down and as- portation of timber. Holding that the circuit court had no jurisdiction of the cause, the supreme court said : " By the com- mon law of England, and of those states of the Union whose jurisprudence is based upon the common law, an action for trespass upon land, like an action to recover the title or posses- sion of the land itself, is a local action, and can only be brought within the state in which the land lies. The original petition contained two counts, the one for trespass upon land, and the other for taking away and converting to defendant's use per- sonal property ; and the cause of action stated in the second count might have been considered as transitory, althiaugh the first was not. But the petition, as amended by the plaintiff, on motion of the defendant, and by order and by leave of the court, contained a single count, alleging a continuing trespass upon the land by the defendant, through its agents, and its cutting and conversion of timber growing thereon. This allega- tion was a single cause of action, in which the trespass upon the land was the principal thing, and the conversion of the 1 158 U. S. 105-108. §§ T5, Y6.] PLACE OF BRINGING SUIT. 89 timber was incidental only; and could not, therefore, be main- tained by proof of the conversion of personal property, without also proving the trespass upon real estate. The entire cause of action was local. The land alleged to have been trespassed upon being in West Virginia, the action could not be main- tained in Ohio. The circuit court of the United States, sitting in Ohio, had no jurisdiction of the cause of action, and for this reason, if for no other, rightly ordered the cause to be stricken from its docket, although no question of jurisdiction had been made by demurrer or plea." § 75. Suits in equity are either local or transitory. — Courts of equity act either m personcmi or in rem; and the distinction between local and transitory actions prevails in suits in equity as well as in actions at law. If a bill in equity presents for the decision of the court a naked issue of title to real estate, the suit is local, and must be brought in a court within whose ter- ritorial jurisdiction the property is situated.^ If, by the case made by the bill, the defendant is liable to the 'plaintiff on a contract, or as trustee, or as the holder of a legal title acquired by a fraud practiced on the plaintiff, then the action is transi- tory, and the suit may be filed wherever the person of the de- fendant may be found ; " and the circumstance that a question of title may be involved in the inquiry, and may even consti- tute the essential point on which the case depends, does not seem sufficient to arrest the jurisdiction of the court;" and " in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of the court may be affected by the decree." '^ § 76. Same — Railroad foreclosure suits. — A bill was filed in the United States ciricuit court for the district of the state of Iowa to foreclose a mortgage on a railroad partly in the 'Massie v. Watts, 6 Cranch, 148; v. Columbus, C. & I. C. Ry. Co., 57 Northern Indiana R. Co. v! Michigan Fed. R. 993; Phelps v. McDonald, 99 Cent. R. Co., 15 How. 233; Corbett v. TJ. S. 398; Hart v. Sanson, 110 U. S. Nutt, 77 tr. S. 464. 151; Carpenter v. Strange, 141 TJ. S. 2Massie v. Watts, 6 Cranch, 148 Hollingsworth v. Barbour, 4 Pet. 475 Boswell's Lessees v. Otis, 9 How. 336 MuUer v. Dows, 94 U. S. 444; Lynde 87; Mitchell v. Bunch, 3 Paige (N. Y. Ch.) 603; Penn v. Lord Baltimore, 1 Vesey, Sr. 444. 90 FEDEEAL EQUITY PEOOEDtTEE. [§ 77. state of Iowa and partly in the state of Missouri, owned by a corporation created by the state of Iowa. The mortgagors being within the jurisdiction of the court, a decree of foreclosure was entered, directing a master to sell the entire line of the railroad lying in the two states, and to make a deed to the purchaser, and that the trustees who brought the suit, and also the defend- ant corporation, the mortgagor, make deeds to the purchaser, and that the mortgagor deliver possession to the purchaser. Upon appeal it was insisted that the decree of foreclosure was void in so far as it directed a foreclosure and sale of property not within the territorial jurisdiction of the court j^ but the United States supreme court overruled that contention, and upheld the decree of foreclosure, saying in its opinion : " With- out reference to the English chancery decisions, where this ob- jection to the decree would be quite untenable, we think the power of the courts of chancery in this country is sufficient to authorize such a decree as was made here. It is here undoubt- edly a recognized doctrine that a court of equity, sitting in a state and having jurisdiction of the person, maj'^ decree a con- veyance by him of land in another state, and may enforce the decree by process against the defendant. True, it cannot send its process into that other state, nor can it deliver possession of land in another jurisdiction, but it can command and enforce a transfer of the title. And there seems to be no reason why it cannot, in a proper case, effect the transfer by the agency of the trustees when they are complainants." * § 77. Distinction between local and transitory actions not affected by federal procedure acts, — Federal legislation pre- scribing where persons shall be sued proceeds in recognition of the distinction between local and transitory actions. The supreme court of the United States, speaking by Chief Justice "Waite, said: "The distinction between local and transitory actions is as old as actions themselves, and no one has ever supposed that laws which prescribe generally where one should be sued included such suits as were local in their character^ either by statute or by common law, unless it was expressly so declared. Local actions are in the nature of suits in rem, and are to be prosecuted where the thing on which they are founded is situated."* iMuUer v. Dows, 94 U. S. 444. 2 Casey, Receiver, v. Adams, 193 U. S. 66-68. § 78.] PLACE OF BEINGING SUIT. 91 (5) HiSTOEY OF Federal Legislation on Teeeitoeial Jueis- DIOTION. § 78. Territorial jurisdiction control]ed by federal legis- lation—Act of September 24, 1789. — Subordinate to the fundamental principles of jurisprudence and the fixed rules of law arising out of the inherent character of local and transitory actions,^ and the absolute right of every sovereignty to pre- scribe laws for the acquisition, ownership and disposition of property within its territory/ and the binding force of the laws of the several states of the Union which constitute rules of prop- erty,' the territorial jurisdiction of suits in the circuit courts of the United States is i-egulated and controlled by federal legis- lation enacted for that purpose, pursuant to the power vested in congress by the federal constitution. The existing statutory regulations upon this subject are not the results of any single act of congress, but they have resulted from a series of enactments beginning with the original judi- ciary act and ending with the act of August 13, 1888; and the whole body of existing rules in regard to the territorial juris- diction of the federal courts, or the body of rules prescribing where suits shall be brought in those courts, is a development or evolution of legislation and judicial construction, beginning with the organization of the federal judicial system and grow- ing with the general progress and development of the country. 1 Livingston v. Jefferson, 1 Brock. Robertson v. Pickrell, 109 U. S. 608; 203, Fed. Cas. No. 8,411; MoKennav. Olcott v. Bynum, 17 Wall 44; Mc- Fisk, 1 How. 241-249; EUenwood, Goon v. Scales, 9 Wall. 23; Sneed v. Adm'r, v. Marietta Chair Co., 158 U. S. Ewing, 5 J. J. Marsh. (Ky.) 460; S. C, 105-108; Northern Ind.R. Co. V. Mich- 22 Am. Dec. 47; Baxter v. Willey, igan Cent. R. Co., 15 How. 233; Doul- 9 Vt. 276; s. C, 31 Am. Deo. 623; Mid- son V. Matthews, 4 Term (Durnford dleton v. McGrew, 23 How. 45; Byers & East) R. 503; Roach v. Damron, 2 v. MoAuley, 149 U. S. 608. Humph. (Tenn.) 427; Watts v. Kia. » Brine v. Insurance Co., 96 U. S. ney, 6 Hill (N. Y.), 82; American 635; Robertson v. Pickrell, 109 U. S. Union Telegraph Co. v. Middleton, 608; Lippincott v. Mitchell, 94 U. S. 80 N. Y. 408; Cragin v. Lovell, 88 767; Gage v. Pumpelly, 115 U. S. 454; N. Y. 263. Ridings v. Johnson, 128 U. S. 212; 2 Story, Conflict of Laws, ch. 10; Clement v. Packer, 125 U. S. 809; United States v. Crosby, 7 Cranch, Gormley v. Clark, 134 U. S. 338; Hal- 115; Clark v. Graham, 6 Wheat. 577; stead v. Buster, 140 U. S. 273; Cross Kerr v. Moon, 9 Wheat. 566; McCor- v. Allen, 141 U. S. 528; Peters v. Bain, mick V. Sullivant, 10 Wheat. 192; 133 U. S. 670; Parker v. Daores, 130 Brine v. Insurance Co., 99 U. S. 635; U. S. 43. 92 FEDEEAL EQUITY PROOED0EE. [§ Y9. The only provision contained in the original judiciary act in regard to the place where suits shall be brought is contained in the eleventh section thereof, and is as follows: "But no per- son shall be arrested in one district for trial in another in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against an inhab- itant of the United States by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ." ' § 79. Same — Act of May 4, 1858. — The law remained as in the original judiciary act until May 4, 1858, when congress passed another act of two sections upon the subject, which is as follows: (1) "That all suits not of a local nature, hereafter to be brought in the circuit and district courts of the United States, in a district in any state containing more than one dis- trict, against a single defendant, shall be brought in the district in which the defendant resides ; but if there be two or more defendants residing in different districts in the same state, the plaintiff may sue in either district and issue a duplicate writ against the defendants, directed to the marshal of any other district within the state in which any of the defendants reside, on which duplicate writ the clerk issuing the same shall in- dorse that it is a true copy of a writ sued out of the court of the proper district, and such original and duplicate writs so issued shall, when executed and returned into the office from which so issued, constitute one suit and be proceeded on accord- ingly; and upon the judgment rendered in a suit so brought, process or execution may be issued, directed to the marshal of any district in the same state. And in suits of a local nature where the defendant resides in a different district in the same state than the one in which the suit is brought, the plaintiff may have original and final process against such defendant directed to the marshal of the district in which he resides." And (2) " That in all cases of a local nature at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another district within the same state, the plaintiff may bring his action or suit in the circuit or district court of either district, and the court in which 1 1 U. S. Stat, at L., ch. 30, seo. 11, pp. 78, 79. §§ 80, 81.J PLACE OF BRINGING SUIT. 93 any such action or suit shall have been commenced as afore- said shall have jurisdiction to hear and decide the same, and to cause mesne or final process to be issued and executed as fully as if the land or other subject-matter were wholly within the district for which such court is constituted." ^ §80. Same — Act of June 1, 1872.— By section 13 of an act passed June 1, 1872, it is provided: "That when in any suit in equity, commenced in any court of the United States, to enforce any legal or equitable lien or claim against real or personal property, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to ap- pear, plead, answer or demur to the complainant's bill, at a certain day therein to be designated, which order shall be served on such absent defendant, if practicable, wherever found, or, where such personal service is not practicable, such order shall be published in such manner as the court shall direct ; and in case such absent defendant shall not appear, plead, answer or demur within the time so limited, or within some further time to be allowed by the court in its discretion, and upon proof of the service or publication of such order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and to proceed to the hearing and adjudication of such suit in the same man- ner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards such absent defendant without appearance, aflfect his property within such district only." * §81. Same— United States Revised Statutes of 1878.— The Eevised Statutes of the United States of 1878 contains, in orderly statement, all of the statutes on the subject of terri- torial jurisdiction in force on December 1, 1873, sections 738, 739, 740, 741 and 742 thereof being as follows: Sec. 738. "When any defendant in any suit in equity to enforce any legal or equitable lien or claim against real or personal property within 1 Acts of 35th Congress, 1st Sess., 2 17 U. S. Stat, at L., ch. 255, sea 13, ch. 27. P- 198. Q4: FEDERAL EQUITY PEOOEDUEE. [§ 81. the district where the suit is brought is not an inhabitant of nor found within the said district, and does not voluntarily appear thereto, it shall be lawful for the court to make, an order directing such absent defendant to appear, plead, answer or demur to the complainant's bill at a certain day therein to be designated; and the said order shall be served on such ab- sent defendant, if practicable, wherever found, or, where such personal service is not practicable, shall be published in such manner as the court shall direct. If such absent defendant does not appear, plead, answer or demur within the time so limited, it shall be lawful for the court, upon proof of the serv- ice or publication of the said order, and of the performance of the directions contained therein, to entertain jurisdiction, and proceed to the hearing and adjudication of such suit, in the same manner as if such absent defendant had been served with process within the said district. But the said adjudication shall, as regards such absent defendant without appearance, affect his property within such district only." Sec. 739. "Ex- cept in the cases provided in the next three sections, no per- son shall be arrested in one district for trial in another, in any civil action before a circuit or district court; and except in the said cases and the cases provided by the preceding section, no civil suit shall be brought before either of said courts against an inhabitant of tne United States, by any original process, in any other district than that of which he is an inhabitant or in which he is found at tbe time of serving the writ." Sec. 740. " When a state contains more than one district, every suit not of local nature, in the circuit or district courts thereof, against a single defendant, inhabitant of such state, must be brought in the district where he resides; but if there are two or more defendants, residing in different districts of the same state, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defendant resides. The clerk issu- ing the duplicate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district; and such original duplicate writs, when executed and returned into the office from which they issue, shall constitute and be pro- ceeded on as one suit; and tipon any judgment or decree ren- dered therein, execution may be issued, directed to the marshal § 82.] I'LACE OF BRINGING SUIT. 95 of any district in the same state." Sec. 741. " In suits of a local nature, where the defendant resides m a different district, in the same state, from that in which the suit is brought, the plaintiff may have original and final process against him, di- rected to the marshal of the district in which he resides." Sec. 742. " Any suit of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another, within the same state, may be brought in the circuit or district court of either dis- trict; and the court in which it is brought shall have jurisdic- tion to hear and decide it, aijd to cause mesne or final process to be issued and executed, as fully as if the said subject-matter were wholly within the district in which such court is consti- tuted." 1 § 82. Same — Act of March 3, 1875.— Ey the first section of an act approved March 3, 1873, it is provided: "But no per- son shall be arrested in one district for trial in another in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other dis- trict than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commenc- ing such proceeding, except as hereinafter provided." And section 8 of the same act covers the subject-matter of the act of May 4, 1858, embraced in sections 738 and 742, United States Revised Statutes, and extends the provisions of the act to suits commenced in the circuit court without confining them to suits in equity, and also adds a provision allowing defend- ants not personally notified to appear within one year and have the judgment set aside, and to plead in such suits. Said section 8 is as follows : " That when in any suit, commenced in any circuit court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any incum- brance or lien or cloud upon the title to, real or personal prop- erty within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily ap- pear thereto, it shall be lawful for the court to make an order IXJ. S. E. S., sees. 738, 739, 740, 741, 743. 96 FEDERAL EQUITY PROCBDTJEE. [§ 83, directing such absent defendant or defendants to appear, plead, answer or demur by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be ; or where such personal service upon such defendant or de- fendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks ; and in case such absent de- fendant shall not appear, plead, answer or demur within the time so limited, or within some further time to be allowed by the court in its discretion, and upon proof of the service or publication of said order, and of the performance of the direc- tions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudi- cation of such suit in the same manner as if such absent de- fendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under thei j urisdiction of the court therein within such district. And when a part of the said real or personal property against which such proceeding shall be taken shall be within another district, but within the same state, said suit may be brought in either district in said state. Provided, however, that any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his ap- pearance in said suit in said circuit court, and thereupon the said court shall make an order setting aside the judgment therein, and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law." ^ § 83. Same— Acts of March 3, 1887, and August 13, 1888. On March 3, 1887, an act was approved (the enrollment of which was corrected by act appi-oved August 13, 1888) amend- ing sections 1, 2, 3 and 10 of the aforesaid act of March 3, 1875, 1 18 U. S. Stat, at L., oh. 137, sees. 2, 8, pp. 470-473. § 83.] PLACE OF BEINGma SUIT. 97 ■which enacts that the first section of the last-named act is amended so as to read as follows : " That the circuit courts of the United States shall have orig- inal cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising in the constitu- tion or laws of the United States, or treaties made or which shall be made under their authority ; or in which controversy the United States are plaintiffs or petitioners; or in which there shall be a controversy between citizens of different states in which the matter in dis^te exceeds, exclusive of interest and costs, the sum or value aforesaid; or a controversy between citizens of the same state claiming lands under grants of dif- ferent states ; or a controversy between citizens of a state and foreign states, citizens or subjects, in which the matter in dis- pute exceeds, exclusive of interest and costs, the sum or value aforesaid; and shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offenses cognizable by them. But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original pro- cess or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant; nor shall any circuit or district court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder, if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said con- tents if no assignment or transfer had been made." Section 5 of the act of March 3, 1887, expressly continues.in force section 8 of the aforesaid act of congress of March 3, 1875. 7 98 FEDERAL EQUITY PEOCEDUEE. [§§ 84, 85. And section 4 of the act of March 3, 1887, provides: " That all national banking-houses established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal or mixed, and all suits in equity, be deemed citizens of the , states in which they are respectively located ; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases be- tween individual citizens of the same state." And all laws and parts of laws in conflict with the provisions of the act of March 3, 1887 (as corrected by the act of August 13, 1888), are repealed.^ (c) The Peesent State of the Law. § 84. General statutes in force in relation to territorial jurisdiction. — The only general statutes now in force relative to the territorial jurisdiction of the circuit courts of the United States, prescribing where suits shall be brought, are the act of March 3, 1887 (as corrected by the act of August 13, 1888), and section 8 of the act of March 3, 1875; the said section 8 of the last-named act having been expressly continued in force by sec- tion 5 of the act of March 3, 1887, and section 6 of the last- named act repealing all laws and parts of laws in conflict with that acV And sections 740, 741 and 742 of the United States Kevised Statutes are also still in force.' § 85. Same — Quaere: Has section 740, United States Be- vised Statutes, been repealed? — Section 740 of the United States Eevised Statutes, which provides that, when a state con- tains more than one district, every suit not of a local nature in the circuit or district courts, where there are two or more de- fendants residing in different districts of the same state, may be brought in either district and duplicate writs issued, is not either expressly repealed or continued in force by the act of March 3, 1887 (as corrected by the act of August 13, 1888); 134 U.S. Stat. at L.,ch. 373, pp. 553- 18 U. S. Stat, at L., oh, 137, sec. 8, 555; 35 U. S. Stat, at L., oh. 866, p. 434; p. 473. 18 U. S. Stat, at L., ch. 137, sec. 8, SGoddard et al. v. irailler et al., 80 pp. 473, 473. Fed. E. 433; East Tenn., V. & G. R. 234 U. S. Stat, at L., oh. 373, p. 553; Co. v. Atlanta & F. E. Co., 49 Fed. E, 35 U. S. Stat, at L., oh. 866, p. 434; 608. §§ 86, 87.] PLACE OF EEINGING SUIT. 99 and it has been held at the circuit that this section of the Ee- vised Statutes has not been repealed, but the question has not been passed upon by the supreme court of the United States."- §86. The place of bringing suit — The general rule The first section of the act of March 3, 1887 (as corrected by the act of August 13, 1888), enacts that the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of five classes of suits of a civil nature at common law or in equity, viz. : " (1) Those which arise under the constitution or laws of the United States, or treaties made or which shall be made under their authority ; (2) those in which the United States are plaintiffs or petition- ers; (3) those in which there is a controversy between citizens of different states ; (4) those in which there is a controversy between citizens of the same state claiming lands under grants of different states; and (5) those in which there is a controversy between citizens of a state and foreign states, citizens or sub- jects."^ The general rule in regard to the place of bringing suit, or the district in which suit shall be brought under the above stat- ute, is that every suit by original process or proceeding must be brought in the state of which the defendant is a citizen, and in the district in which he resides and of which he is an in- habitant.' But to this general rule there are some exceptions which will be stated in the sections following. §87. Same — When jurisdiction is based on diverse citi- zenship. — The first section of the statute now in force and under consideration, by special provision, makes an exception to the general rule above stated, as to the place of bringing suit. That exception is : That every suit by original process or proceeding between citizens of the United States, where the jurisdiction of the court is founded only on the fact that the » Goddard et al. v. Mailler et al., 80 » 34 U. S. Stat, at L., ch. 373, sec. 1, Fed. E. 432; East Tenn., V. & G. R. p. 553; 25 U. S. Stat, at L., oh. 86fi, ■Co. V. Atlanta & F. R. Co., 49 Fed. R. _ sec. 1, p. 434; McCormick Harvesting ^08. ' Machine Co. v. Walthers, 134 U. S. ii34 U. S. Stat, at L., ch. 873, sec. 1, 41-45; Re Keasby & Mattison Co., 160 p. 553; 33 U. S. Stat, at L., ch. 866, U. S. 331-331. sec. 1, p. 434; Wilson v. Western Union Tel. Co., 34 Fed. R. 563. 100 TEDEKAL EQUITY PEOCEDUEE. [§ 88. action is between citizens of different states, must be brought only in the state, of which the defendant is a citizen and in the district in which he resides and of which he is an inhabitant,. or in the state of which the plaintiff is a citizen and in the dis- trict in which he resides and of which he is an inhabitant. The language of the statute is: "But where the jurisdiction is founded only on the fact that the action is between citizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendant." These " con- cluding lines are to be read as a proviso to the general provis- ion that no civil suits shall be brought except in the district whereof the defendant is an inhabitant." ' And, under this, proviso, where there are more plaintiffs or defendants than one^ all of the plaintiffs must be competent to sue, and all of the defendants must be liable to be sued in the particular suit.^ §88. Same — Suits against domestic corporations. — For jurisdictional purposes it is conclusively presumed by the courts of the United States that all the stockholders of a corporation are citizens of the state which by its laws creates the corpora- tion, and no averment to the contrary will be permitted. And for jurisdictional purposes a corporation is, by the courts of the United States, conclusively presumed to be a citizen of the state where it was created, and no averment to the contrary will be permitted. A corporation cannot change its residence or its citizenship. It " can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law and by force of the law; and where that law ceases to operate, and is no longer obligatory,, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sover- eignty. But although it must live and have its being in that state only, yet it does not by any means follow that its exist- ence there will not be recognized in other places; and its resi- 1 24 U. S. Stat, at L., ch. 373, sec. 1, ton, 146 U. S. 302-210; Wilson v. p.553;25U.S.Stat.atL.,ch.866,sec.], Western Union TeL Co., 34 Fed. R. p. 343; Smith v. Lyon, 133 U. S. 315- 563. 320; McCormick Harvesting Machine ^gmith v. Lyon, 133 U. S. 315-320; Co. V. Walthers, 184 U. S. 41-45; Re Hooe v. Jamieson, 166 U. S. 395; Keasby & Mattison Co., 160 U. S. Hooe v. Werner, 166 U. a 399. 221-331; Southern Pacific Co. v. Den- § 89.] PLACE OF BEINGING SUIT. 101 dence in one state creates no insuperable objection to its power of contracting in another." ^ And all suits upon original process or proceeding, against domestic corporations in the courts of the TJnited States, must be brought in the state which created the corporation and in the district in which it resides and of which it is an inhabitant; unless the jurisdiction of the court in the cause is founded only on the fact that the action is between citizens of different states, in which event the suit may be brought in either the state of which the plaintiff is a citizen and in the district in which he resides and of wljioh he is an inhabitant, or in the state of which the defendant corporation is a citizen and in the district in which it resides and of which it is an inhabitant.^ And a corporation does not waive its right to be sued alone in the state which created it, by having and maintaining a usual place of business in another state in which it has not been in- corporated.' § 89. Same — Suits against railroad corporations, — The fact that a railroad corporation, created by the laws of one state, has extended its line of railroad into another state, and has there constructed and owns and operates its railroad under a license and in conformity to the laws of the latter state, does not make such railroad corporation a corporation of the latter state, but for all jurisdictional purposes it continues to be a cor- poration and a citizen of the former state in which it was created, only ; and in all suits in the circuit courts of the United States against a railroad corporation so created by one state and owning and operating a line of railroad in another state, it must be treated as a citizen of the state by which it was IBank v. Earle, 13 Pet. 588; Rail- 2 Southern Pacific Co. v. Denton, road Co. v. Harris, 12 Wall. 65; Ex 146 U. S. 203-210; Re Keasby & Mat- parte Schollenberger, 96 U. S. 369; tison Co., 160 U. S. 221-231; MoCor- Muller V. Dows, 94 U. S. 444; Penn- mick Harvesting Machine Co. v. sylvania Co. v. Railroad Co., 118 U. S. Walthers, 134 U. S. 41-45. 390; Goodlett v. Railroad Co., 113 3 shaw v. Quincy Min. Co., 145 U. S. U. S. 391; Shaw v. Quincy Min. Co., 444-453; Southern Pacific Co. v. Den- 145 U.S.444r-453; Southern Pacific Co. ton, 146 U. S. 202-210; McCormick V. Denton, 146 U. S. 202-210; Fales, Harvesting Machine Co. v. Walthers, Adm'x, V. Chicago, M. & St P. Ry. 134 U. S. 41-45; Re Keasby & Matti- Oa, 33 Fed. R. 673. son Co., 160 U. S. 331-231. 102 FEDEEAL EQUITY PEOOEDUEE. [§ 90. created, and sued in accordance with the requirements of the statute of March 3, 1887 (as amended by act of August 13, 1888).* § 90. Same — Snits against national banking associations. From the time of the organization of the government and the federal judicial system, it has been held by the supreme court of the United States that suits against corporations created by acts of congress of the United States were suits arising under the constitution and laws of the United States, and were there- fore cognizable by the circuit courts without regard to the citizenship of the parties; and this principle was, of course, ap- plied to national banking associations.^ But by the proviso to section 4 of the act of congress of July 12, 1882, entitled " An act to enable national banking as- sociations to extend their corporate existence, and for other purposes," it is enacted : " That the jurisdiction for suits here- after brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking associations may be doing business when such suits may be begun ; and all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed." The supreme court of the United States has held that the effect of this proviso was that nothing in the way of federal jurisdiction could be claimed by a national bank because of the source of its incorporation ; and by the act na- tional banks were placed before the law in this respect in the same condition as a bank not organized under the laws of the United States.' By section i of the act of March 3, 1877 (as corrected by act 1 St. Louis & San Francisco Ry. Co. Union Pacific Ey. Co. v. Harris, 158 V. James, 161 U. S. 545-573 ; St. Joseph U. S. 326. & Grand Island R. Co. v. Steel, 167 ' 23 U. S. Stat, at L., ch. 390, sec. i, U. S. 659. p. 163: Leather Mfg. National Bank 2 Osborn v. United States Bank, 9 v. Cooper, 130 U. S. 778-784; Whit- Wheat. 738, 819; Pacific Railroad Re- ,more v. Amoskeag National Bank, moval Cases, 115 U. S. 1 ; Northern Pa- ' 134 U. S. 537-530. ciflc R. Co. V. Amato, 144 U. S. 465; § 91-J PLACE OF BEINGmO SUIT. 103 of August 13, 1888), it is declared: "That all national bank- ing associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdic- tion other than such as they would have in cases between indi- vidual citizens of the same state. The provisions of this sec- tion shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any oflBcer thereof, or cases for winding up the affairs of any such bank." the supreme court of the United States has declared the intendment of this last statute to be, that the jurisdiction of the courts of the United States in re- gard to national banks is the same as in regard to corporations created by states, and individual citizens, and " deprives these banks of the privilege of suing or being sued, except in cases where diversity of citizenship would authorize an action to be brought." ^ § 91. Same — Suits against aliens and foreign corporations. The constitution of the United States extends the judicial power to cases at law and in equity between citizens of a state and foreign states, citizens or subjects, and the existing statutes vest in the United States circuit courts original cognizance, concur- rent with the courts of the several states, of all suits of a civil nature at common law or in equity between citizens of a state and foreign states, citizens or subjects in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000." The provisions of section 1 of the act of March 3, 1887 (as corrected by act of August 13, 1888), prescribing that no civil suit shall be brought by original process or proceeding in any other district than that whereof the defendant is an in- habitant, or in cases where the jurisdiction is founded only on the fact that it is between citizens of different states only in the district of the residence of either the plaintiff or defend- 1 34 U. S. Stat, at L., ch. 373, sec. 4, U. S. 644-651 ; Ex parte Jones, 164 U, p. 553; 35 U. S. Stat, at L., ch. 866, S. 691-694. sec. 4, p. 434; Petri at al. v. Commer- ^ xj. S. Const., art. 3, sec. 2; 34 U. S. cial National Bank of Chicago, 143 Stat, at L., ch. 373, sea 1, p. 553; 35 U. S. Stat, at L., ch. 866, sec. 1, p. 434. 104 FEDEEAL EQTTITY PEOCEDUEE. [§ 92. ant, refer to suits between citizens of the United States only, and are inapplicable to suits brought in the circuit courts of the United States against an alien, or a corporation created by a foreign state, empire or kingdom; but suits against an alien, or such foreign corporation, may be brought in any court of the United States where the defendant may be found at the time of the service of the writ ; and where a firm in this country is the financial agent of a foreign corporation, and the office of the firm is the office of the corporation for the transaction of its business in this country, the service of subpoena upon the head of the firm as the general agent of the foreign corpora- tion is a sufficient service of process upon such corporation.' § 92. Same — Suits arising under patent-right laws of the United States. — The provisions of the general judiciary act now in force, prescribing the district in which suits shall be brought, apply only to those classes of suits of which the cir- cuit courts of the United States have original cognizance, con- current with the courts of the several states, and do not apply to suits of which the courts of the United States have exclusive jurisdiction ; and the circuit courts of the United States have exclusive jurisdiction of all suits arising under the patent-right and copyright laws of the United States, and such suits may brought in any district where personal service can be had upon the defendant; 2 and it seems to be a rule well established that where exclusive jurisdiction of any case or any class of cases is vested in the circuit courts of the United States by special acts of congress, passed prior to the acts of March 3, 1887, and Au- gust 13, 1888, the territorial jurisdiction of such suits so within the exclusive jurisdiction of the United States circuit courts is not affected by the last-named acts limiting the place of bring- ing suit to the district whereof one of the parties is an inhab- itant, but such suits may be brought wherever valid service can be had upon the defendant.' iRe Hohorst, 150 U. S. 653-664; 801; Van Patten v. Chicago, M. & St. Barrow Steam Ship Co. v. Kane, 170 P. R. Co., 74 Fed. R. 981; Earle v. TJ. S. 100, 113. Southern Pac. Co., 73 Fed. R. 609; 24 2U. S. R S., sec. 711; Re Ho- U. S. Stat, at L., ch. 378,seo. l,p. 552; horst, 150 U..8. 653-664; Re Keasby 25 U. S. Stat, at L., oh. 866, sec. 1, & Mattison Co., 160 U. S. 231-331; p. 434. Smith V. Sargent Mfg. Co., 67 Fed. R. s Rg Hohorst, 150 U. S. 653-664; Re § 93.] PLACE OF BEINGING SUIT. 105 But the territorial jurisdiction of suits for the infringement of letters-patent is now regulated by a special act of congress ■ passed March 3, 1897, which provides: "That in suits brought for the infringement of letters-patent the circuit courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership or corporation, shall have committed acts of infringement and have a regular and established place of business. If suit is brought in a district of which defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons or subpoena upon the defendant may be made by ser\;ice upon the agent or agents engaged in conducting such business in the district in which suit is brought." ^ § 93. Same — Suits arising under the trade-mark laws of the United States.— An act of congress of March 3, 1881, au- thorizes the owners of trade-marks used in commerce with for- eign nations, or with the Indian tribes domiciled in the United States, or located in any foreign country, or tribes which by treaty, convention or law afford similar privileges to citizens of the United States, to procure a registration of such trade- marks in the patent office of the United States, and gives rem- edies by action for damages in courts of law for the wrongful use of such trade-marks at the suit of the owner, and also suits in equity to enjoin the wrongful use of such trade-marks, and vests jurisdiction of such suits in the courts of the United States, but makes no regulations concerning the territorial jurisdiction of such suits ; and it has been held by the supreme court of the United States that the place of bringing suits under such act in regard to the infringement of trade-marks is controlled by the provisions of the judiciary act of March 3, 1887 (as amended by act of August 13, 1888), requiring that suit shall be brought in the district whereof one of the parties is an inhabitant.^ Keasby & Mattison Co., 160 U. S. 75 Fed. E. 609; United States v. 321-231; Smith v. Sargent Mfg. Co., Mooney, 116 U. S. 104-108. 67 Fed. R. 801; Van Patten v. Chi- 129 U. S. Stat, at L., ch. 395, p. 695. cago, M; & St. P. R. Co., 74 Fed. R. 2 21 U. S. Stat, at L., oh. 138, p. 502; 981; Earle v. Southern Pacific Co., Re Keasby & Mattison Co., 160 U. S. 221-331. 106 FEDERAL EQUITY PEOOEDUEE. [§§ 94, 95. § 94. Same — Suits under laws of the United States to protect commerce. — Suits prosecuted under an "act to pro- tect trade and commerce against unlawful restraints and mo- nopolies " may be brought in the district in which the defendant resides or is found ; and when it shall appear to the court be- fore which any proceeding in equity, under section 4 of that act, may be pending, that the ends of justice require that other parties shall be brought before the court, the court may cause such other parties to be summoned, whether they reside in the district in which the court is held or not, and subpoenas to that end may be served in any district by the marshal thereof.' And proceedings in equity in the circuit courts of the United States under the sixteenth section of " an act to regulate com- merce," approved February 4, 1887, may be prosecuted in the judicial district in which the common carrier complained of has his principal oifice, or in which the violation of the pro- visions of said act shall occur, and notice of such proceedings shall be served upon the defendant, his officers or agents, or servants, in such manner as the court may direct.^ §95. Same — Persons suing or sued in a representative capacity. — When the jurisdiction of the court is based upon the diverse citizenship of the parties, if one of the parties sues or is sued in a representative capacity, as receiver, trustee, executor or administrator, and such suit is maintainable by or against such party so suing or sued in his representative capac- ity, without joining as parties the persons beneficially inter- ested, the jurisdiction is to be determined by the citizenship of the party so suing or sued in a representative capacity, and not by the citizenship of the person represented or ultimately bene- ficially interested in the subject-matter of the suit.' In the case of Dodge v. Tulleys, Justice Brewer, speaking for the su- preme court of the United States, said : " Another defect claimed is that the citizenship of Hesse, the obligee in the bond, is not 1 26 U. S. Stat, at L., ch. 649, pp. 311, Co. v. Blatchford, 11 Wall. 173; Har- 213- per v. Norfork & W. R. Co., 36 Fed. 2 24 U. S. Stat, at L., ch. 104, sec. 16, E. 103; Shirk v. City of La Fayette, pp. 384, 385. 53 Fed. R. 857; Davies v. Lathrop, 13 8 Rice V. Houston, 18 "Wall. 66; Fed. E. 353; Browne v. Browne, 1 Bradford v. Williams, 3 How. 576; Wash. 429, Fed. Cas. No. 8,035. Dodge V. Tulleys, 144 U. S. 451; Coal § 96.] PLACE OF BEINGING SUIT. 107 alleged ; but this is unnecessary. The suit is in the name of TuUej's, trustee, to whom the legal title was conveyed in trust, and who was, therefore, the proper party in whose name to bring suit for foreclosure. It happens in this case that there was but one party beneficiary under the trust deed; but it often is the case, as in railroad trust deeds, that the beneficia- ries are many. But whether one or many, the trustee repre- sents them all, and in his name the litigation is generally and properly carried on. The fact that the beneficiary in a trust deed may be a citizen of the same state as the grantor would not, if the trustee is a citizen of a different state, defeat the jurisdiction of the federal court." ^ § 96. Local suits under section 8, act of March 3, 1875, — All suits in the circuit courts of the United States to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon the title to, real or personal property must be brought in the district in which the property is situated ; and when a part of such property shall be within two districts of the same state, the suit may be brought in the circuit court of either of such districts; and if one or more of the defendants in such suit shall not be an inhabitant of or found within the district where such suit shall be brought, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or de- fendants to appear, plead, answerer demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of the property which is the subject of the suit, if any there be ; or when such personal service is not practicable, such order shall be published, in such manner as the court may direct, not less than once a week for six consecutive weeks. Suits of this character, and the place of bringing them, and the manner of substituted service upon absent defendants, are authorized, regulated and controlled by section 8 of the act of March 3, 1876, which was expressly con- tinued in force by the act of March 3, 1887 (as corrected by act of August 13, 1888); and the provisions of the last-named act, requiring that suits shall be brought either in the district 1 144 U. S. 451-458. 108 FEDEEAL EQUITY PEOCEDTTEB. [§ 97. of the residence of the plaintiff or the defendant, are inapplica- ble to suits of this character, or other suits of a local nature. The rule prescribed by the former act in regard to the district where suits of the nature and character therein enumerated shall be brought constitutes a distinct and important exception to the general rule prescribed by the last-named statute, requir- ing all civil suits to be brought in the district whereof the de- fendant is an inhabitant; and although the jurisdiction of the court in any suit mentioned in section 8 of the act of March 3> 1875, may be founded only on the fact that the action is be- tween citizens of different states, yet the law does not require that sucii suit should be brought in the district of the residence of either the plaintiff or defendant ; the situs of the property fixes the place or district where the suit shall be brought, and if the requisite diverse citizenship exists, the court where the property is situated has jurisdiction of the suit, although neither the plaintiff nor the defendant reside in such district.^ The supreme court of the United States has sustained the validity of section 8 of the act of March 3, 1875, and has upheld the jurisdiction of the court conferred in such cases by publication to the absent defendants ; ^ and that court has expressly held that the right given by section 8 of the act of 1875 to the plaintiff in local actions to call in by publication absent defend- ants who have an interest in the subject-matter of the litiga- tion was not taken away nor in any manner affected by the act of March 3, 1877 (as corrected by the act of August 13, 1888), where the requisite diverse citizenship exists.' §97. Where ancillary or dependent suits are to be brought. The statutes of the United States prescribing where suits shall be brought do not apply to ancillary or dependent suits, but such suits should be brought in the same court where the orig- inal Suit to which it is ancillary or upon which it is dependent was brought, without regard to the citizenship of the parties, 1 18 U. S. Stat, at L., ch. 137, see. 8, U. S. 316-339; Goodman v. Niblack, p. 477; 34 U. 8. Stat, at L., oh. 873, 103 U. S. 556; Single v. Soott Paper sec. 1, p. 553; 35 U. S. Stat, at L., Mfg. Co., 55 Fed. R. 553. ch. 866, sec. 1, p. 437; Greeley v. Lowe, 2 Mellen, Trustee, v. Moline Malle- 155 U. S. 58-76; Mellen, Trustee, v. able Ironworks, 131 U. S. 353-371; Moline Malleable Iron Works, 131 Arndt v. Griggs, 134 TJ. S. 316. U. S. 353-371; Arndt v. Griggs, 134 s Greeley v. Lowe, 155 U. S. 58-76. § 9^.] PLACE OF BRINGING SUIT. 109 or any other ground of jurisdiction, and the subpoena may lavr- fuUy be served upon the defendant wherever found, whether in or out of the district where the ancillary suit is brought; in ancillary suits the court has jurisdiction over the defendant by virtue of the jurisdiction acquired over him in the former or original suit. An ancillary suit is not a suit " by original pro- cess or proceeding." ' It is not within the purview of this chap- ter to discuss the subject of ancillary jurisdiction, but it is deemed that it would be quite convenient to the practitioner to state in this connection some of the general principles in re- gard to the basis of this branch of the jurisdiction, and also some of the general features and purposes of ancillary suits, as well as the necessity for the existence of the ancillary jurisdic- tion as developed in the cases cited below. Mr. Justice Miller of the United States supreme court, discussing the ancillary jurisdiction, said: " The question is not whether the proceeding is supplementary and ancillary or is independent and original in the sense of the rules of equity pleading, but whether it is supplementary and ancillary or is to be considered entirely new and original in the sense which this court has sanctioned with reference to the line which divides the jurisdiction of the fed- eral courts from those of the state. 'So one would hesitate to say that, according to the English chancery practice, a bill to enjoin a judgment at law is an original bill in the chancery sense of the word. Yet this court has decided many times that when a bill is filed in the circuit court to enjoin a judgment of that court it is not to be considered as an original bill, but as a continuation of the proceeding at law; so much so that the court will proceed in the injunction suit without actual service of subpoena on the defendant, and though he be a citizen of 1 Hatch V. Dorr, 4 McLean, 112, Fed. Cas. No. 13,195; Root v. Woolworth, Cas. Np. 6,006; Babcock v. Millard, 150 U. S. 401; Thompson v. McEey- Fed. Cas. No. 699; Dunlap v. Stetson, nolds, 29 Fed. R. 657; Lamb v. Ewing, 4Mason, 349, Fed. Cas. No. 4,164; Mil- 54 Fed. R. 272, 273; Dietzsch v. Huide- waukee, etc. R. Co. v. Soutter, 2 Wall, koper, 103 U. S. 494; White v. Ewing, 609, 645; The Cortes Co. v. Tann- Receiver, 159 U. S. 86-40; Pacific hauser, 9 Fed. E. 226; Bank v. Le- Railroad of Missouri v. Missouri Pa- land, Fed. Cas. No. 9,452; Jones v. cific R. Co., IIIU.'S. 505; Gumble v. Andrews, 10 Wall. 327; Clark V.Mat- Pitken, 124 U. S. 131; Compton v. thewson, 12 Pet. 164; Freeman v. Jessup, 68 Fed. R. 263; Blake v. Iron Howe, 24 How. 450 ; In re Sabine, Fed, & Coal Co., 76 Fed. R. 624 110 FEDERAL EQUITY PEOOEDUEE. [§ 98. another state, if he were a party to the judgment at law." * It Avould seem that the prevention of a conflict of authority be- tween the state and federal courts, and the protection and preservation of the jurisdiction of each, free from encroach- ments by the other, are considerations which lie at the very foundation of ancillary jurisdiction. A bill filed to continue a former litigation in the same court, or which relates to some matter already partly litigated in the same court, or which is an addition to a former litigation in the same court, by the same parties or their representatives standing in the same in- terest; or to obtain and secure the fruits, benefits and advan- tages of the proceedings and judgment in a former suit in the same court by the same or additional parties, standing in the same interest ; or to prevent a party from using the proceed- ings and judgment of the same court for fraudulent purposes, or to restrain a party from using a judgment to perpetrate an injustice, or obtain an inequitable advantage over other parties to the former judgment or proceeding; or to obtain any equi- table relief in regard to, or connected with, or growing out of any judgment or proceeding at law rendered in the same court ; or to assert any claim, right or title to property in the custody of the court, or for the defense of any property rights, or the collection of assets of any estate being administered by the court, — is an ancillary suit.^ § 98. The right to be sued in a particular district waived by general appearance. — In a case where the court has juris- diction the right to be sued in a particular district is a personal privilege of the defendant and may be waived by a general ap- pearance. "Where the parties are citizens of diiferent states, so that the case comes within the general grant of jurisdiction con- tained in the first part of section 1 of the statute now in force, the defendant, by entering a general appearance in a suit brought against him in a district of which neither -he nor the plaintiff is an inhabitant, waives his right to object that the suit is brought in the wrong district. When the defendant intends to urge the objection that he is sued in the wrong district he should enter a special appearance for that purpose only, and thereby avoid iMilwaukee, etc. E. Co. V. Soutter, 2 See all authorities cited above 2 Wall. 609-645. under this section. § 98.] PLACE OF BEINGING S0IT. Ill the waiver of his privilege by a general appearance.^ In one of the cases cited the supreme court of the Ilnited. States said: " The act of March 3, 1887, as corrected by the act of Au- gust 13, 1888, confers upon the circuit courts of the United States original jurisdiction of all civil actions, at common law or in equity, between citizens of different states in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value of |2,000; and provides that where the jurisdic- tion is founded only on the fact that the action is between citi- zens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendant. The circuit courts of the United States are thus vested with general jurisdiction of civil actions, involving the requisite pecuniary value, between citizens of different states. Diversity of citizen- ship is a condition of jurisdiction, and when that does not ap- pear upon the record the court of its own motion will order the action to be dismissed. But the provision as to the partic- ular district in which the action shall be brought does not touch the general jurisdiction of the court over such a cause between such parties, but affects only the proceedings taken to bring the defendant within such jurisdiction, and is a matter of per- sonal privilege which the defendant may insist upon or may waive at his election ; and the defendant's right to object that an action within the general jurisdiction of the court is brought in the wrong district is waived by entering a general appear- ance without taking the objection." ^ 1 Interior Construction & Improve- at L., ch. 373, sec. 1, p. 553; 25 TJ. S. ment Co. v. Gibney, 160 IT. S. 317- Stat, at L., cli. 866, sec. 1, p. 434; St. 220; Ee Keasby & Mattison Co., 160 Louis & S. F. R. Co. v. McBride, 141 U. S. 321-281; Dunlap v. Stetson, 4 U. S. 137. Mason, 360, Fed. Cas. No. 4,164; Gracie - Interior Construction & Improve- V. Palmer, 8 Wheat. 699; Toland v. ment Co. v. Gibney, 160 U. S. 217- Sprague, 13 Pet. 331 ; Ex parte Scliol- 220. lenberger, 96 U. S. 369; 34 U. S. Stat. CHAPTEE VI. SUITS IN EQUITY COMMENCED BY ORIGINAL BILI* § 99. How suit in equity com- menced. 100. The preparation of the original bill. (a) Paets and Frame of the Oeio- iNAL Bill as Matured m the High Court of Chancery of England. 101. Office and functions of the original bill. 103. The address of the bill. 103. Names and addresses of the plaintiffs. lot The stating part of the bilL 105. The common confederacy clause. 103. The charging part. 107. The jurisdictional clause. 108. The interrogating clause. 109. The prayer for relief. 110. The prayer for process. (b) Parts and Frame of the Orig- inal Bill Under the United States Eqihtt Rules. 111. Nature and eflEect of the United States equity rules. 113. What parts of the bill may be omitted. 113. Address to the court and resi- dence of the parties. 114 The stating part and charging part of the bill partially blended. 115. The stating part and charging part of the bill not wholly blended. 116. The interrogating part of the bill. 117. Same — Interrogatories not necessary to compel full an- swer. § 118. Same — Plaintiff's right to dis- covery. 119. Exceptions to the rule that plaintiff is entitled to dis- covery. 130. The prayer for relief and for special writs and orders. 131. The prayer for the process of subpoena. 133. The bill must be signed by counsel. 133. What bills must be verified by oath. 134. How, oaths are to be admin- istered, (c) Some General Rules of Plead- ing. 135. The jurisdictional facts must be averred in the bill. 136. How and when jurisdictional facts are to be averred in removal cases. 137. Every fact essential to plaint- iff's right must be stated in the bill. 138. Common-law rules of pleading followed in equity pleading. 139. Same — Pleading title to real property. 130. Same — Conditions precedent must be averred in the bill. 131. Deeds, contracts and other in- struments must be pleaded according to their legal ef- fect. 133. The bill must not contain scandal nor impertinence. 133. Same — Inherent power of the court over its own records. 134. The bill must not be multi- farious. §99.] ORIGINAL BILL. 113 § 135. Same — Common point of liti- gation. 136. Same —No universal rule can be laid down. 187. Same — Bill with a double as- pect. 138. The degree of certainty re- quired in a bill in equity. 139. Bills by stockholders. (d) AMENDINa THE ORIGINAL BiLL. 140. The original and amended bills are one record. 141. The general purposes qi amendments. 143. The federal statute tof amend- ments and jeofails. 148. Same — Time within which amendments may be al- lowed. § 144. Amendments of course before demurrer, plea or answer filed. 145. Amendments after demurrer, plea or answer filed. 146. Amendments after demurrer or plea allowed. 147. Amendment after replication filed. 148. Same — Form of averment in bill stating pretense of de- fendant. 149. Amendments to put in issue nfew matter contained in de- fendant's plea or answer. 150. "What matter may be intro- duced by amendment. 151. Amendment as to parties. 153. When application for amend- ing bills may be presented. 153. How amendments are made. § 99. How suit in equity commenced. — A suit in equity in the circuit courts of the United States is commenced by the filing of an original bill in the clerk's oflB.ce, and the issuance thereon of a subpoena, and its service upon the defendant and return. An equity rule provides that " the process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill;"' and another equity rule provides that " no process of subpoena shall issue from the clerk's oflBce in any suit in equity until the bill is filed in the office; " ^ and by another equity rule it is provided that, " upon the return of the subpoena as served and executed upon any defendant, the clerk shall enter the suit uppn his docket as pending in the court, and shall state the time of the entry." ' Under these rules, which have the force of law, there is no suit " pending in the court " until the subpoena has been actually served and executed upon the defendant and returned to tlie clerk's office; and this was substantially the English practice. It is said that " this writ " (the subpoena) " must be issued and served upon all the parties defendant to a bill (except the at- torney-general, who being an officer of the crown, always sup- 1 Equity Rule 7. 8 2 Equity Rule 9. 8 Equity Rule 16. 114 FEDERAL EQUITY PEOCEDUEE. [§ 100. posed to be present in court, is, as we have seen, merely at- tended with a copy of the bill), before a cause can be properly said to be commenced," ^ § 100. The preparation of the original bill. — Great care, attention and professional skill are requisite in the preparation and draft of the original bill. A mistake in the statement of the facts which constitute the equities of the plaintiff's case, or a failure to properly adapt the scope and theory of the bill to the attainment of the appropriate discovery and relief, may, and often does, embarrass the suit from its inception to its final determination, necessitating amendments and causing vexa- tious delays, and sometimes resulting in the complete sacrifice of the plaintiff's rights.^ In so far as such an end is attainable, the equity rules and the decided cases of the United States courts have simplified pleadings and proceedings in equity causes; but by reason of the very nature and purposes of the remedy by original bill, and the character of the injuries which that remedy is usually invoked to redress, pleadings in equity are necessarily attended with intricacies and difficulties which require technical and professional skill and learning to^master and overcome. A distinguished jurist and author has said: " Equity pleading has, indeed, now become a science of great complexity, and a very refined species of logic, which it re- quires great talents to master in all its various distinctions and subtle contrivances, and to apply it, with sound discretion and judgment, to all the diversities of professional practice. The ability to understand what is the appropriate remedy and re- lief for the case; to shape the bill fully, accurately and neatly, without deforming it by loose and immaterial allegations, or loading it with superfluous details; and to decide who are the proper and necessary parties, — the ability to do all this requires various talents, long experience, vast learning, and a clearness and acuteness of perception which belong only to very gifted minds. "Without these, diligence and industry will not always insure success; although it may be truly said, that, without the latter also, genius, however high, will find itself outstripped in the race, and be compelled to pay homage to inferior minds, 1 1 Daniell, 554 i Shields v. Barrow, 17 How. 130. § lOl.J OKIGINAL BILL. 115 ■who may win an easy triumph by steady perseverance against ■the bold but irregular sallies of less wary adversaries." ^ This chapter will be devoted to a discussion and analysis of the principles and elements of the original bill, and the rules to be observed in its draft and preparation, and also the subject of iamendments to the bill. Although the draft of the bill is now to a large extent regulated by the equity rules, yet the force and effect of these rules cannot be fully appreciated and com- prehended without a knowledge of the functions and parts of «,n original bill as it was developed and matured in the High -Court o'f Chancery of England^ The United States circuit courts administer equitable remedies in accordance with the English «ystem as modified by the equity rules,- and these rules must be construed with reference to their setting, and that system. Then, therefore, the order to be here pursued is: (1) the parts And frame of an original bill as matured in the High Court of 'Chancery of England ; (2) the parts and frame of an original bill under our equity rules ; (3) some general rules to be ob- served in drawing original bills; and (4) amendments to orig- inal bills. {a) Paets and Fbame of the Oeiginal Bill as Matueed in THE High Couet of Chanoeet of England. § 101. Office and functions of the original bill.— Disre- garding all matters of form, and looking alone to the substan- tive character, essential elements and primary objects and pur- poses of the original bill, its functions are only four in number, viz. : (1) To state in legal form all of the essential ultimate facts which constitute the equity of the plaintiflF, and upon which he' rests his claim to relief; (2) to anticipate and state the facts or pretended facts which defendant will set up as .a defense to the case made by the bill, and to avoid such ■defense by the statement of other facts; (3) to obtain from de- fendant a discovery and admission of facts which support and prove, or tend to support and prove, the case of the plaintifif made in the bill; and (4) to state the relief sought by the bill.' 1 Story's Eq. PI, sec. 13. Eedesdale (6th Am. ed.), 50; 1 Dan- 2 Equity Eule 90. iell, 484, 485; Story's Eq. PI., sec. 31 ; 3Langdell, Eq. PL, sec. 55; Mc- Adams' Eq. 303; Mechanics' Bank v. Claskey v. Barr, 40 Fed. E. 559; Levy, 3 Paige Ch. 606;. Stafford v. 116 FEDERAL EQUITY PKOOEDUEE. [§§ 102-4. As will be shown in the following sections, the English bill had, or might have, nine formal parts, but the real substance of the bill is as here stated. §102. The address of the bill. — For the sake of conven- ience and order, bills are drawn with some regard to form. The first part of the bill is its direction or address to the court. In the English practice every bill was addressed to the person or persons who had the actual custody of the great seal at the time the bill was filed, unless the seal was in the king's own hand, or the lord chancellor was the suitor, in which cases the bill was addressed to the king in his High Court of Chancery."^ § 103. Names and addresses of the plaintiffs. — The second part of the bill, in the English practice, correctly stated the names of all the plaintiffs, and also gave a description of the place' of abode or residence of each plaintiff, in order that the court and the defendants might know where to resort to compel obedience to any order or process of the court, and par- ticularly for the payment of any costs which may be awarded against the plaintiff, or to punish any improper conduct in the course of the suit.^ § 104. The stating part of the hill .— The third part of the bill is called the stating part; it contains a statement of the plaintiff's case. This part of the bill should contain a full, ac- curate, clear and distinct statement of all the essential ultimate facts which constitute the plaintiff's case, and upon which he rests his claim to relief. It must contain such a statement of facts as would, if admitted by the answer of defendant or estab- lished by the proof at the hearing, entitle the plaintiff to a de- cree of the court granting him relief.' " The complainant's- equity must appear in the stating part of the bill." * " The rules of pleading require that every material averment that is nee- Brown, 4 Paige Ch. 88, 91; Hawley iRedesdale(6thAm.ed.),49; IDan- V. Wolverton, 5 Paige Ch. 523,535; iell, 463. Watson V. Eenniok, 4 Johns. Ch. 381 ; 2 Redesdale (6th Am. ed.), 49 ; 1 Dan- Robbins v. Davis, 1 Blaokf. 338, Fed. iell, 463; Story's Eq. PI., sec. 36. Cas. No. 11,880; Smith's Ch. Prac. 660, s Redesdale (6th Am. ed.), 49; 1 Dan- 666; Wigram on Discov., sees. 18, 376. iell, 465, 466; Story, Eq. PL, sees. 37, 377,378, 379, 281; Hare on Discov., 28; Adams' Equity, 803, 830. sea 5, p. 313. i Flint v. Rives, 3 Ves. Jr. 343. §§ 105, 106.] , OKIGINAL BILL. 117 €ssary to entitle the plaintiff to the relief prayed for must be contained in the stating part of the bill; and this is a useful rule for the preservation of form and order in the pleadings. This part of the bill must contain the plaintiflE's case, and his title to relief; and every necessary fact must be distinctly and expressly averred, and not in a loose and indeterminate man- ner, to be explained by inference, or by reference to other parts of the bill." 1 § 105. The common confederacy clause. — This is the fourth part of the bill, and " contains a general charge that the de- fendant, combining and confederating with divers persons, at. present unknown to the plaintiff, but whose names when dis- covered the plaintiff craves to be at liberty to insert in his bill, with apt and proper matter and words to charge and make them parties defendant to the bill, refuses to do that justice to the plaintiff which he requires or is entitled to." It is said that the practice of inserting this clause arose from the supposition that without it the bill could not be amended by the addition of parties, and that in some cases it was necessary to sustain the jurisdiction of the court; but it was in fact never essential for either purpose. It is surplusage, and defendants cannot be compelled to answer it.^ § 106. The charging part. — This is the fifth part of the bill, and, although so distinguished a lawyer as Lord Kenyon while at the bar never would put it in the bills drawn by him, its introduction in many cases has proved highly beneficial. This part of the bill performs two distinct offices, to wit : First. The plaintiff may state by way of pretense any fact or pretended facts which he supposes or anticipates will be interposed by the defendant as a defense to the case made by the plaintiff in the stating part of the bill, and may deny, or explain, or confess and avoid such defense by the averment of other facts. In the early practice the original bill stated the plaintiff's case very briefly and concisely, and if the de- fendant's answer introduced any new matter, the plaintiff met it by filing a special replication ; but special replications fell 1 Wright V. Dame et al., 23 Pick. SRedesdale, 43, 44; 1 Daniell, 483, {Mass.) 55, 59. 483; Story, Eq. PI., sees. 29, 30. 118 FEDERAL EQUITY PEOCEDUEE. [§ 106, into disuse, and their place was supplied by the charging part of the bill. And now the plaintiff by his pleading places on file both a bill and a special replication to the anticipated de^ fense of the defendant; and the charge that the defendant pre- tends a certain fact puts that fact in issue.' If at the time of preparing and filing the original bill the plaintiff is unable to anticipate the defense, he may omit any reference to it until ■ the coming in of the defendant's answer, and then avoid the- defense by an amendment to the bill.^ Second. The charging part of the bill is also used for the purpose of laying the foundation for discovery from the de- fendant, (1) to prove plaintiff's case as made in the stating part of the bill, and (2) to counterprove and destroy the defense of the defendant as set up by way of pretense in the charging part of the bill; and the plaintiff may, in the charging part,, allege any matter of evidence, or any collateral fact or cir- cumstance, the admission of which by the defendant may be material in proving the plaintiff's case or in destroying the defendant's defense, or in ascertaining or determining the nature and extent or kind of relief to which the plaintiff may be entitled, consistently with the case made by the bill.' "A bill in chancery is not only a pleading for the purpose of bringing before the court and putting in issue the material al- legations and charges upon which complainant's right to relief rests, as in a declaration in a suit at law, but also, in most cases, an examination of the defendant upon oath, for the pur- pose of obtaining evidence to establish the complainant's case, or to counterprove or destroy the defense which may be set up by such defendant in his answer. The complainant may there- fore state any matter of evidence in the bill, or any collateral fact, the admission of which, by the defendant, may be mate- rial in esta,blishing the general allegations of the bill as a plead- ing, or in ascertaining or determining the nature and extent or the kind of relief to which the complainant may be entitled^ iRedesdale(6thAm.ed.), 50;lDan- 3 1 Daniell, 485; Story, Eq. PL, iell, 484, 485; Story, Eq. PL, sec. 31; sees. 31, 368; Adams' Eq. 303-305 ^ Adams' Eq. 303. Mechanics' Bank v. Levy et aL, 3. 21 DanieU, 513; Adams' Eq. 303; Paige Oh. 606; Staflford v. Brown, 4 Story, Eq. PL, sees. 676, 678, 884, 885, Paige, 88-91; Hawley v. Wolverton, 878; Shields V. Barrow, 17 How. 130; 5 Paige Ch. 532-525; Langdell, Eq. Stafford V. Brown, 4 Paige, 88, 91. PL, sec. '57. §§ 107, 108.] OEIGINAL BILL. 119 consistently with the case made by the bill, or which may le- gally influence the court in determining the question of costs." ^ It is not as a pleading proper, but as an examination of the defendant fpr discovery that the bill may contain a statement of evidence, collateral facts and circumstances, the admission of which by the defendant would be material in establishing the plaintiff's case ; and for this reason these matters alleged as a foundation for discovery are properly inserted in the charging part, and not in the stating part, which is or should be a pleading pure and simple.** The charging part may also, for the purposes of discovery, contain an allegation that th^defendant has in his possession or under his control books, papers and documents which are evidence to prove his bill or some part thereof, and the de- fendant, in his answer, must either deny that he has possession or control of any such books, papers and documents, or he must set forth what books, papers and documents he has, and de- scribe them, and, if relevant, they thereby become a part of his answer, and are subject to the inspection and use of plaintiff, as proof in the cause.' § 107. The jurisdiction clause.— " The sixth part of the bill is intended to give jurisdiction over the suit to the court by a general averment that the acts complained of are contrary to equity, and tend to the injury of the plaintiffs, and that they have no remedy, or not a complete remedy, without the assist- ance of a court of equity." This clause cannot give the court ju- risdiction and is unnecessary, for it must appear from the facts disclosed in the bill that the court has jurisdiction of the cause.* § 108. The interrogating part.— This is the seventh part of the bill, and contains a prayer that the defendants may answer on oath all the allegations and charges of the bill according to the best and utmost of their knowledge, remembrance, infor- 1 Opinion of Chancellor Walworth Fed. Cas. No. 11,880; 1 Smith's Ch. in Hawley V. Wolverton, sitpro. Prac, 660-666; Wigi-am on Discov- 2 Mechanics' Bank v. Levy et al., 3 ery. sees. 18. 276, 277, 278, 279, 381; Paige, 606: Hawley v. Wolverton, 5 Hare on Discovery, sec. 5, p. 213. Paige, 533-535 ; Story, Eq. PL, sec. 268 ; n Daniell, 486 ; 1 Smith's Ch. Prac. Adams' Eq. 305.- 84 ; Redesdale (6th Am. ed.), 50 : Story, 8 Watson V. Rennick, 4 Johns. Ch. Eq. PL, sec. 84. S81; Bobbins v. Davis, 1 Blatchf. 238. 120 FEDEEAL EQUITY PKOCEDUEE. [§§ 109-111. mation and belief ; and it may also contain special interroga- tories addressed to the defendants, which, however, must be based upon some allegation or charge of the bill, for the pur- pose of compelling a full answer to the bill, and of making inquiry into all the circumstances of the case. The purpose of requiring an answer from defendants is to obtain discovery and supply the proof to establish the allegations of the bill or some part thereof.^ But special interrogatories have never been ab- solutely necessary in order to require an answer from defend- ant; it has always been the rule that a general requirement without special interrogatories is sufficient to compel a full answer and discovery.^ § 109. The prayer for relief.— The eighth part of the bill is the prayer for relief, and is varied according to the case made by the bill, and always concludes with a prayer for general relief. It is the usual and most convenient practice to insert a special and specific prayer for the relief which the pleader thinks his client is entitled to receive, and then add a prayer for general relief at the discretion of the court.' § 110. The prayer for process, — The ninth part of the bill IS the prayer that process may issue to compel the defendant to appear and answer the bill and abide the determination of the court upon the subject. This prayer should specify the names of the persons who are made defendants to the bill, and against whom the process is prayed; and if the writ of injunction or other extraordinary writ be desired, then, according to the English practice, it should be prayed for in both the prayer for relief and the prayer for process.* (5) Paets and Feame of the Oeiginal Bill Undee the United States Equity Kules. §111. Nature and effect of the United States equity rules. The United States equity rules do not affect nor change the 1 1 Daniell, 486^S9; Eedesdale, Am. ed.), 54; 1 Smith's Ch. Prac. 84, 60-54; Story, Eq. PI., sec. 35; 1 Smith's 85; Story, Eq. PL, sees. 40-43; Adams' Ch. Prac. 84, 85. Eq. 308, 309. 2 Methodist Episcopal Church v. * Eedesdale (6th Am. ed.), 54, 55; Jaques, 1 Johns. 65; Story, Eq. PI., sec. 1 Daniell, 500-503; Story, Eq. PI., sec. 35; McCaskey v. Barr, 40 Fed. E. 559. 44; Adams' Eq. 310, 3U; 1 Smith's 8 1 Daniell, 489, 490; Eedesdale (6th Ch. Prac. 85, 86. §§ 112, 113.] ORIGINAL BILL. 121 real substantive character and essential elements of pleadings and proceedings in equity as they existed in the High Court of Chancery in England. These rules do not in the least dimin- ish the efficiency of the remedy by bill in equity, but on the contrary they increase the eflBciency of the remedy ; some of these rules are simply declaratory of the ancient principles of equity pleadings and procedure; some of them are literal copies of the English chancery orders; some of them were promul- gated to make plain and certain some matters of practice and procedure which had been left in doubt and uncertainty by the English decisions; and some of them have made changes in the practice and procedure^ito meet local conditions and the peculiar constitution of the federal courts. These rules will all be considered in their due order and proper connection. § 112. What parts of the bill may be omitted. — An equity rule provides that: " The plaintiff in his bill shall be at liberty to omit, at his option, the part which is usually called the com- mon confederacy clause of the bill, averring a confederacy be- tween the defendants to injure or defraud the plaintiff; also what is commonly called the charging part of the bill, setting forth the matters of excuse which the defendant is supposed to set up by way of defense to the bill ; also what is commonly called the jurisdiction clause of the bill, that the acts complained, of are contrary to equity, and that the defendant is without any remedy at law ; and the bill shall not be demurrable there- for." ^ It will be noted that the omissions mentioned in the rule are optional with the pleader, and that the only conse- quence of the omissions is that the bill shall not be demurrable therefor; but such omissions would not, as we have seen, ren- der the bin demurrable under the English practice. § 113. Address to tlie court and residence of the parties. An equity rule provides that: "Every bill, in the introductory part thereof, shall contain the names, places of abode, and citi- zenship of all the parties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows: To the judges of the circuit court of the United States for the district of : A. B. of , and a citizen of Equity Rule 31. 122 FEDERAL EQUITY PEOCEDtTEK. [§§ 114, 116. the state of , brings this his bill against C. D. of ^ - and a citizen of the state of , and E. F. of , and a citi- zen of the state of . And thereupon your orator com- plains, and says that " — ^ § 114. The stating part and charging part of the hill par- tially blended. — An equity rule provides that: "The plaintiff may, in the narrative or stating part of his bill, state and avoid,; by counter averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant by way of defense or excuse to the case made by the plaintiff for relief." * This is a real innovation in equity pleading, but a logical and beneficial one. That part of the charging part of a bill in equity, as matured in the High Court of Chancery of England,, which anticipates and avoids the defense, is a pleading, strictly; and its transfer by the equity rule into the stating part of the biU is a natural and logical development of the equity system, and renders the bill more logical and symmetrical than it was under the old practice. Under this rule, when the plaintiff, in the stating part of his bill, states a fact or a transaction as a foundation for relief, he may, in connection therewith, state and avoid any pretense which he supposes or anticipates the defendant will set up in relation to the fact or transaction so stated. In this manner, the logical and chronological order of all the statements of the bill as a pleading may be preserved,, and the real cause of the complaint be more easily understood by the court. § 115. Stating part and charging part of the hill not wholly blended.— We have seen that, in the charging part of the original bill as matured in the High Court of Chancery of England, the plaintiff may, for purposes of discovery, state any matter of evidence, or any collateral fact, the admission of which by the defendant may be material in establishing the general allegations of his bill, or in ascertaining or determin- ing the nature, extent or kind of relief to which the plaintiff may be entitled, consistently with the case made by the bill^ and that for a liice purpose the plaintiff may state in the charg- ing part of his bill that the defendant has in his possession or 1 Equity Rule SO. 2 Equity Rule 21. § 116.] OKIGINAL BILL. 123 under his control books, papers and documents wliicli contain proof of the allegations of the bill or some of them, and that defendant is bound to answer such charges of evidence. But there is no equity rule which abolishes this feature of the bill, or authorizes these matters to be charged in the stating part of the bill; and it is therefore still proper, in the equity practice in the United States circuit courts, to insert in the bill, in a separate clause, charges of evidence, collateral facts and cir- cumstances, and the possession or control, by defendant, of books, papers and documents, the admission of which may be material in establishing the plaintiff's case.^ § 116. The interrogating part of the bill. — The very full and elaborate regulations in regard to the interrogating part of the bill contained in the United States equity rules show the purpose of the United States supreme court to preserve in all its efficiency the functions and agency of the bill as a means of discovery ; but, as under the English practice, it is now left optional with the pleader to propound interrogatories or to omit them. An equity rule provides that: "It shall not hereafter be nec- essary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complainant desires to do so to obtain discovery."* Another equity rule provides that the words preceding the interrogating part shall be: "To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, in- formation and belief, full, true, direct and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respect- ively required to answer; that is to say — « 1. Whether, etc. " 2. Whether, etc." ' And another equity rule provides that: "(1) The interroga- tories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and num- ^-1 See ante, § 106. " Equity Rule 40. » Equity Eule 4a 124: FEDEEAL EQUITY PEOCEDUEE. [§ 117. bered consecutively 1, 2, 8, etc. ; and the interrogatories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form or to the effect follow- ing, that is to say: 'The defendant (A. B.) is required to an- swer the interrogatories numbered respectively 1, 2, 3, etc. ; ' and the ofiice copy of the bill taken by each defendant shall not contain any interrogatories except those which such de- fendant is so required to answer, unless such defendant shall require to be furnished a copy of the whole bill. " (2) If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly responsive to such interrogatories, shall not be evi- dence in his favor, unless the cause be set down for hearing on bill and answer only; but may nevertheless be used as an affi- davit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the act of con- gress of July 2, 1864." ' And another equity rule provides that: "The note at the foot of the bill, specifying the interrogatories which each de- fendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note, after the bill is filed, shall be considered and treated as an amendment of the bill." 2 § 117. Same — Interrogatories not necessary to compel full answer. — It is the duty of the defendant to answer fully all the allegations and charges contained in the bill, without special interrogatories; this was the rule in the English prac- tice,' and is expressly declared by one of the equity rules above quoted.* In the opinion of Chancellor Kent in one' ef the cases cited,' in a discussion of the English practice it is said: "The 1 Equity Rule 41. < Equity Rule 40; McCaskey v. 2 Equity Rule 43. Barr, 40 Fed. R. 559; Brown v. Pierce, 3 Story, Eq. PI., sec. 35: Methodist 17 Wall 211. Episcopal Church V. Jaques, IJohns. « Methodist Episcopal Church v. Ch. 65. Jaques, supra. § 118.] OEIGINAL BILL. 125 mere objection to a further discovery is that the bill contains no special interrogatories. The bill contains the general iater- rogatory ' that the defendants may full ans^wer make to all and singular the premises, fully and particularly, as though the same were repeated, and they specially interrogated, para- graph by paragraph, with sums, dates and attendant circum- stances and incidental transactions.' The question, then, is whether this be not sufficient to call for a full and frank dis- closure of the whole subject-matter of the bill ; and I appre- hend the rule on this subject to be that it is sufficient to make the general requisition on the defendant to answer the contents of the bill; and the interrogating part of the bill, by a repeti- tion of the several matters, is not necessary. The defendant is bound to deny or admit all the facts stated in the bill, with all the material circumstances, without special interrogatories for the purpose. They are only useful to probe more effectually the conscience of the party, and to prevent evasion or omis- sion as to circumstances which may be deemed important ; but it is no excuse for the defendant, in avoiding to answer fully to the subject-matter of the bill, that there were no special in- terrogatories applicable to the case. Plain sense and a good conscience will without any difficulty, in most cases, teach a defendant how far it is requisite to answer the contents of the bill, and to meet the gravamen alleged ; and it is certainly de- sirable to avoid, if possible, the expense and prolixity of repeat- ing, in the same bill, every material fact. It is well under- stood that if the defendant be specially interrogated, it can only be to the facts alleged and charged in the bill. The one cannot be more extensive than the other." § 118. Plaintiff's right to discovery.— Bills in equity are (1) technical bills of discovery, or bills for discovery only ; and (2) bills for discovery and relief. When the plaintiff files his bill for relief, he is entitled to have and obtain from the de- fendant discovery to prove his bill and to disprove the defense made to the bill by the defendant. " Every bill is in reality a bill of discovery " The discovery is furnished in the defend- ant's answer, and is sought either in aid of proof to be made by the examination of witnesses, or to supply the want of such proof; if the answer contains full admission of the case made 126 FEDERAL EQUITY PEOCEDDEE. [§ 118. by the bill, then there is no need of further proof .' "Evidence procured from admissions in the answer is generally less ex- pensive, and often more convenient, than if it were obtained from witnesses; and it has the further advantage of being con- clusive — that is, of acting as an estoppel to the introduction of conflicting testimony." ^ Mr. Wigram, in his work " Points in the Law of Discovery," in a masterful analysis of the English chancery decisions upon the subject, establishes the two fol- lowing fundamental propositions in regard to the plaintiff's right to discovery, viz. : " Proposition I. It is the right, as a general rule, of a plaint- iff in equity to examine the defendant upon oath as to all matters of fact which, being well pleaded in the bill, are material to the proof of the plaintiff's case, and which the defendant does not by his form of pleading admit. " Proposition II. Courts of equity, as a general rule, oblige a defendant to pledge his oath to the truth of his defense. With this (if a) qualification, the right of a plaintiff in equity to the benefit of the defendant's oath is limited to a discovery of such material facts as relate to the plaintiff's case, and does not extend to a discovery of the manner in which, or the evi- dence by means of which, the defendant's case is to be estab- lished, or to any discovery of the defendant's evidence."' And in the same work the author establishes the following subsidiary propositions, viz. : First. " That (1) where a plaintiff makes a case in his bill, which, if admitted, would disprove the truth of, or otherwise invalidate, the defense made to the bill, he is entitled to a dis- covery from the defendant, in order to enable him so to im- peach the defendant's case ; (2) so far, then, the plaintiff has a right to discovery directed, as evidence, not to the case upon which his right to a decree is founded, but to the purpose of attack upon the defendant's case ; (3) that the right of a plaint- iff to discovery in support of his own case is not abridged, as to any particular discovery, by the consideration that the mat- ter of such particular discovery may be evidence of the defend- ant's case m common with that of the plaintiff." * 1 Wigram on Law of Discovery, 2 Gresley's Eq. Ev. 9, 10. 1-6; Hawley v. Wolverton, 5 Paige, ' Wigram on Law of Discovery, 10. 533 ; Mechanics' Bank v. Levy, 3 Paige, * Wigram on Law of Discovery, 41. 606- Story's Bq. PI., sec. 268. § 118.] OEIGINAL BILL. 127 Second. " The discovery which a court of equity compels is not confined to a discovery of facts resting merely in the knowl- ■edge of the defendant, but extends to a discovery of deeds, papers and writings of every description in his possession or power, the contents of which are material to the proof of the plaintiff's case. The plaintiff has the right in such case to re- quire the defendant to set out the contents of such matters in his answer according to their purport and effect ; or, if he pleases, in the very words and figures thereof ; and such appears to have been anciently the practice in pleading. The great and unnec- essary expense of this mode of pleading has led to a cheaper and more simple mode of ac'^omplishing the same object in practice. The way is this: the plaintiff alleges in his bill (in effect) that the defendant has in his possession or power deeds, papers and writings relating to the matters mentioned in the bill; and that, by the contents of such deeds, papers and writ- ings, if the same were produced, the truth of the plaintiff's case would appear. The defendant is then required by the bill to admit or deny the truth of these allegations; and, if he admits having possession or control over any such deeds, documents or writings, he is required by the bill, and i& prima facie bound, to describe them either in the body of his answer or in a schedule to it. The plaintiff then moves the court that the defendant may be ordered to produce and leave in the hands of his clerk in court the deeds, papers and writings so described, with lib- erty for the plaintiff to inspect and take copies of them. The plaintiff being entitled to the production of these documents for the purposes of evidence only, if the defendant is advised that the plaintiff is not entitled to have them produced for such purpose, or if, for any other reason, he disputes the plaintiff's right to see the documents at that stage of the cause, he may appear upon the motion and take the opinion of the court upon the plaintiff's right to the order he seeks. This mode of getting at the defendant's documents is, then, merely a substitution of one form of practice for another — a substitution which cannot affect the principle upon which the order is made. This prin- ciple (founded upon the more ancient practice before explained) is that the documents are part of the defendant's examination. The motion for the production of the documents is in the nat- ure of an exception to the answer, and the judgment of the 128 FEDERAL EQUITY PEOCEDUKE. [§ 118. court upon the motion will be regulated accordingly. If the plaintiff under the old practice would have succeeded upon ex- ceptions to the answer for not setting out the documents, he will be entitled upon his motion to an order to have them pro- duced ; otherwise he will not be so entitled." ^ The author then shows from the decisions that, when the court orders the pro- duction of deeds, papers, documents and writings, it proceeds on the principle that those deeds, papers, documents and writ- ings are, by reference, incorporated in the answer, and become a part of it; and being in the office, the effect is the same as if they were stated in hmc verba in the answer.^ The waiver by plaintiff in his bill, under equity rule 41, of an answer on oath is not a waiver of his right to a full answer and full discovery from the defendant. The only change made in the practice of the High Court of Chancery of England by the provision of our equity rule allowing a waiver of an answer on oath is to deprive the answer of any force as evidence in favor of the defendant. The language of the rule is : " If the complainant in his bill shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly re- sponsive to such interrogatories, shall not he evidence in his favor, unless the cause shall be set down for hearing on bill and answer only; but may nevertheless be used as an affidavit with the same effect as heretofore on a motion to grant or dis- solve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the act of con- gress of July 2, 1864." The admissions of a defendant in his answer of any of the facts which go to prove the bill are evi- dence in the plaintiff's favor, whether the answer be sworn to or not, and the plaintiff may always avail himself of any ad- missions and allegations in the answer of defendant, though that answer be not under oath. Equity rule 41 does not pro- vide that where answer under oath is waived in the bill the answer shall not be evidence for any purpose; but the provis- ion of the rule is that under the circumstances therein stated 'Wigram on Law of Discovery, ^Wigram on Law of Discovery, 6, 7. 8, 9. § 118.] OEIGINAL BILL. 129 the answer shall not be evidence in the defendant's favor. Manifestly the admissions of the answer, however, may be used by the plaintiff in support of his bill. The federal courts have repeatedly held that a corporation, although answering under its common seal, may be required to answer fully every mate- rial allegation of the bill. Whether the oath is dispensed with by law, as in the case of corporations, or by the plaintiff, is imma- terial. The two classes of answers belong to the same category in this respect, and no distinction need be made in considering the plaintiff's right to discovery. Corporations answer under the sanctity and solemnity of their seals only; but whether de- fendants answer under oath or under corporate seals, when oaths are waived they are required to answer fully on every material issue. The waiver of an oath in any case is made by the plaintiff for the purpose of depriving the defendant of the advantage of his answer as evidence in his own favor. If no such waiver is made, a sworn answer is taken as evidence in favor of the defendant, so forceful as to require two witnesses, or one witness and corroborating circumstances, to overcome it. From this it appears that the sole purpose of a waiver of an oath to an answer is to affect the evidential character and value of the answer. It has nothing to do with the answer as a plead- ing, and the rule prevails that the defendant must answer fairly and fully to each and every material fact alleged in the bill. This full and fair answer should serve the purpose of eliminat- ing many undisputed facts from the case. If facts alleged by the plaintiff are admitted by the defendant in his answer, the necessity for consumption of time and expenditure of money in taking proof thereof does not exist, and the court's attention is drawn to the debatable issues only. The power of the court to require such an answer ought not to be abridged at all ; and therefore, if the plaintiff, for the purpose of preventing the de- fendant from making his answer equal in evidential strength to two witnesses, sees fit to waive the oath to the answer, the right to except for insufficiency must still exist.^ The state 1 Whittemore v. Patton, 81 Fed. R R. 869; Gamewell Fire-Alaita Tel. Co. 537; National Hollow Brake Beam v. The Mayor, 31 Fed. R. 312; Colgate Co. V. Interchangeable Brake Beam v. Campagnie, 33 Fed. R. 83: Reed v. Co., 83 Fed. R. 26; Uhlmann v. Am- Cumberland Mut Ins. Co., 36 N. J. Eq. holt & Schaefifer Brewing Co., 41 Fed. 393; Patterson v. Gaines, 6 How. 588; 130 FEDERAL EQUITY PEOCEDUEE. [§ 118. and federal statutes permitting parties to be called as witnesses and examined by the opposite party have not abrogated nor curtailed the power of courts of equity to enforce discovery according to equitable principles. It is true that the right to a discovery in courts of equity arose from the necessity of search- ing the conscience of the opposing party in order to ascertain facts and obtain documents within his knowledge and control which the plaintiff could not reach at law because of his ina- bility to compel the examination of the defendant under oath. It is true that the federal and state statutes now in force which enable the plaintiff to obtain such an examination have greatly diminished the need of these discoveries; but it is none the less true that these statutes have neither abrogated the right nor curtailed the power of courts of equity to enforce them. They have only added another right to that which had already been secured in courts of chancery. Every bill for relief exhibited in a court of equity is, in effect, a bill for discovery, because it asks or may ask from the defendant an answer upon oath rela- tive to the matters which it charges. The power to enforce such a discovery is one of the original and inherent powers of a court of chancery, and the right of a party to invoke its ex- ercise is enjoyed in every case in which he is entitled to come into a court to assert an equitable right or title or to apply an equitable remedy.' The power of a federal court of "^equity to entertain a cross-bill for discovery in a suit in equity has not been abridged by any act of congress or rule of the supreme court, and is not superseded by statutory methods provided for obtaining facts in actions at law; and it is not a sufficient rea- son for a corporation to refuse to answer a cross-bill against it for discovery that its officers and employees are made com- petent witnesses for either party by, federal statutes, such tes- timony not being the exact equivalent of a discovery by the corporation itself. A corporation aggregate is bound to answer a bill of discovery the same as a natural person, except that it puts in its answer under its corporate seal, while a natural per- son makes answer under oath. While it is the usual practice to join the clerk or other principal officer of a corporation ag- Union Bank v. Gary, 5 Pet. 99; Kitt- & M. 244, Fed. Cas. No. 7,859; Bartlett ridge v. Claremont Bank, 1 Woodb. v. Gale, 4 Paige, 503. 1 KeUey v. Boettoher, 85 Fed. E. 55. § 118.] OEIGINAL BILL. 131 gregate as a party to the suit in a bill for discovery, such joinder is not necessary. "Where a corporation is the sole party defend- ant, it is its duty, if required to do so by the bill, to put in a full, true and complete answer; and to enable it to do so it must cause diligent examination to be made of all deeds, papers, writ- ings and muniments in its possession before answering.' There are some decisions of the court of chancery of E^ew York which have been relied upon as authority to sustain the general proposition that a waiver by the plaintiff of an answer on oath is also a waiver of his right to discovery ; ^ but these de- cisions ' of the court of chancery of ISTew York were governed -absolutely by a special rtile ol that court, which is materially different in its provisions from the United States equity rule * fupon the point, and are therefore of no authority in the federal courts. The fortieth of the New York chancery rules, on which these decisions were based, is as follows: "If the complainant waives the necessity of the answer being made on the oath of waZ^, 109,U. S. 150. " The suit now before the court was subsequently commenced in the state of New York against the surviving partners of Kiggs & Company, but service was had on only one of the partners, John Elliott, and, he having died, his executof s were substituted as parties defendant. The object of the suit was to compel the defendants to account for the bonds or their value, upon the theory that Eiggs & Company had acquired them with actual notice of the pending litigation concerning the bonds, and were bound by the results of the judgment ren- dered as above stated in the suit of Hovey v. McDonald. The court of appeals of New York held that the judgment was not binding upon Eiggs & Company, or the surviving members thereof, because it was rendered in a contempt proceeding after striking out the answer and refusing to consider the tes- timony filed in the cause; the judgment was beyond the juris- diction of the court, as the power of the courts of the District of Columbia to punish for contempt was restricted by the pro- visions of the United States Eevised Statutes, section 725. 145 N. Y. 126. The New York court, moreover, held that, even assuming that the supreme court of the District had ju- risdiction, and that the doctrine of the liability of purchasers pendente Ute applied to a purchase made under the circum- stances shown, the firm of Eiggs & Company were not such purchasers with reference to the judgment in question, as the lis in which the judgment was rendered was not the one pend- ing at the time of the sale to the firm. From this judgment error was prosecuted to this court upon the theory that the decision of the court of appeals of the state of New York de- nied proper faith and credit to the judgment rendered by the supreme court of the District of Columbia. " "Whether, as held by the court below, the courts of the Dis- trict of Columbia are confined, in all characters of contempt, only to an infliction of the penalties authorized in the United States Eevised Statutes, section Y25, and therefore have no § 168.] TAKING THE BILL PEO CONFESSO. 217 power in any other form or manner to punish for a contempt, is a question which we do not deem it necessary to decide, and as to which, therefore, we express no opinion whatever. In the view we take of the case, even conceding that the statute does not limit their authority, and hence that the courts of the District of Columbia, notwithstanding the statute, are vested with those general powers to punish for contempt which have been usually exercised by courts of equity without express statutory grant, a more fundamental question yet remains to be determined; that is, whether a court possessing plenary power to punish for contempt, unlimited by statute, has the right to summon a defendant«to answer, and then, after ob- taining jurisdiction by the summons, refuse to allow the party summoned to answer, or strike his answer from the files, sup- press the testimony in his favor, and condemn him without con- sideration thereof and without a hearing, on the theory that he has been guilty of a contempt of court. The mere statement of this proposition would seem, in reason and conscience, to render imperative a negative answer. The fundamental con- ception of a court of justice is condemnation after hearing. To say that courts have inherent power to deny all right to defend an action, and to render decrees without any hearing whatever, is, in the very nature of things, to convert the court exercising such authority into an instrument of wrong and op- pression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends. "In McVeigh v. United States, 78 TJ. S. (11 Wall.) 259, the court through Mr. Justice Swayne said: 'In our judgment the district court committed a serious error in ordering the claim and answer of the respondent to be stricken from the files. As we are unanimous in this conclusion our opinion will be con- fined to that subject. The order in effect denied the respond- ent a hearing. It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum. . . . The liability and the right are inseparable. A differ- ent result would be a blot upon our jurisprudence and civiliza- tion. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice.' And quoting with approval this language in Windsor v. McVeigh, 93 U. S. 227, the court 218 FEDEEAL EQUITY PEOCEDUEE. [§ 168. speaking through Mr. Justice Field again said : ' The principle stated in this terse language lies at the foundation of all well- ordered systems of jurisprudence. Wherever one is assailed in his person or his property there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and con- science of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. That there must be notice to a party of some kind, actual or constructive, to a valid jadgnient affecting his rights, is admitted. Until notice is given the court has no jurisdiction in any case to proceed to judg- ment, whatever its authority may be by the law of its organiza- tion over the subject-matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made ; it is a summons to him to appear and speak if he has anything to say why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party, appear and you shall be heard ; and when he has appeared, saying, your appearance shall not be recognized and you shall not be heard. In the present case the district court not only in effect said this, but immediately added a decree of condemnation, reciting that the default of all persons had been duly entered. It is difficult to speak of a decree thus rendered with moderation ; it was in fact a mere arbitrary edict clothed in the form of a judicial sentence.' This language but expresses the most elementary conception of the judicial function. At common law no man was condemned without being afforded an opportunity to be heard. . . . The necessary effect of the judgment of the supreme court of the District of Columbia was to decree that a portion of the award made in favor of the defendant, in other words his property, belonged to the complainants in the cause. The decree, therefore, awarded the property of the defendants to the complainants upon the hypothesis of fact that by con- tract the defendant had transferred the right in or to this prop- erty to the complainant. If the court had power to do this by § 168.] TAKING THE BILL PEO CONFESSO. 219 denying the right to be heard to the defendant, what plainer illustration could there be of taking property of one and giving it to another without hearing or without process of law ? If the power to violate the fundamental constitutional safeguards securing property exists, and if they may be with impunity set aside by courts on the theory that they do not apply to pro- ceedings in contempt, why will they not also apply to proceed- ings against the liberty of the subject ? "Why should not a court in a criminal proceeding deny to the accused all right to be heard, on the theory that he is in contempt, and sentence him to the full penalty of the law ? 'No distinction between the two cases can be pointed out. f he one would be as flagrant a violation of the rights of the citizen as the other; the one as pointedly as the other would convert the judicial department of the government into an engine of oppression, and would make it destroy great const' "^'itional safeguards. " But the argument is that however plain may be the want of power in all other branches of the government to condemn a citizen without a hearing, both upon the elementary princi- ples of justice and under the express language of the constitu- tion, these principles do not limit the power of the courts to punish for contempt or as for contempt, because it is asserted that from the earliest times the chancery court in England has possessed and exercised the power to refuse the right to be heard to one in contempt, and that a power so well estab- lished in England before the adoption of the constitution, and which has been so often exercised since, is not controlled by the principles of reason and justice just stated. But this con- tention is without solid foundation to rest upon, and is based upon a too strict and literal rendering of general language to be found in isolated passages contained in the works of writ- ers on ancient law and practice, and on loose statements as to the practice of the courts of chancery to be found in a few de- cisions of English courts. Certain it is that in all the reported decisions of the chancery courts in England no single case can be found where a court of chancery ever ordered an answer to be stricken from the files and denied to a party defendant all right of hearing because of a supposed contempt. And in the American adjudications, while there are two cases, one in Ifew York and the other in Arkansas, asserting the existence 220 FEDEEiL EQUITY PEOCEDUEE, [§ 168. of sucli power, an analysis of these cases and the authorities upon which they rely will conclusively show the erroneous character of the conclusions reached. " The foundation of the assertion that the power existed in and was exercised by the English court of chancery to strike from the files an answer of a defendant in contempt for diso- bedience to an order made in the cause, and to decree pra confesso against him, primarily rests upon what is supposed to be the true construction of one of the ordinances of Lord Bacon (promulgated in 1618), which reads as follows: ' 78. They that are in rebellion, especially as far as proclamation of rebellion, are not to be here (heard?), neither in that suit, nor any other, except the court of special grace suspend the contempt.' " What construction was given to this ordinance or the ex- tent to which it was enforced by the court of chancery in the years immediately succeeding its adoption cannot be positively affirmed, as we have not found nor have we been referred to any decisions made in the seventeenth or eighteenth centuries purporting to be based upon that ordinance. " On the mere text of the ordinance, it is manifest that it does not necessarily embrace the power to enter a decree pro confesso, after answer filed, upon the theory that de'fendant was guilty of a contempt. On the contrary, the proclamation of rebellion, referred to in the ordinance, was one of the then recognized processes for the purpose of compelling an answer in the suit. Indeed, the powers of the chancery courts to pun- ish for contempt were normally brought into play, beginning with an attachment of the person and culminating in the se- questration of the property of the one in contempt, in order to compel an appearance and answer. Gilbert, Forum Komanum, p. 33 ; Bl. Com., bk. 3, p. 443. Nowhere in these works is there an intimation that, as a penalty for contempt, a refractory de- fendant, not in default for answer, might be punished by being disallowed the right to defend against the bill filed in the cause. So far from such being the case, as already stated, a party who failed to appear or answer was treated as in con- tempt, and the various processes for contempt were resorted to in order to compel his appearance and answer; this being done in order that the conscience of the court might be satis- fied when it entered a decree in the cause. . . . The re- § 168.] TAKING THE BILL PEO CONFBSSOi 221 view and analysis of the English cases which we now propose to make will demonstrate that the passages to which we have just referred could not have imported the power of a court to strike an answer from the files and take a bill for confessed because of a contempt, since that analysis will conclusively es- tablish that there is no basis for the assertion that the courts of chancery in England claimed or exercised the power, after answer filed, to decree fro confesso on the merits against a de- fendant, merely because he persisted in disobedience to an order of the court, though the cases do show that the chancery courts commonly refused to hear a de:^ndant in contempt when ask- ing at their hands a favor. The difference between a want of power, on the one hand, to refuse to one defendant in contempt the right to defend in the principal case on the merits, and the existence of the authority, on the other, to refuse to accord a favor to one in contempt, is clearly illustrated by the whole line of adjudicated cases." After a review and analysis of the English and American cases, from the case of Phillips v. Buoh, 1 Vern. 228, decided in 1683, the opinion of the court proceeds : " The right which was here denied by rejecting the answer and taking the bill for confessed because of the contempt involved an essential element of due process of law, and our opinion is therefore ex- clusively confined to the case before us. The demonstration of the unsoundness of the contention that courts of equity have claimed and exercised the power to suppress an answer and thereupon render a decree jjt-o confesso, which results from the foregoing review of the authorities, is strengthened by the re- flection that, if such power obtained, then the ancient common- law doctrine of ' outlawry,' and that of the continental system as to ' civil death,' would be a part of the chancery law, a theory which could not be admitted without violating the rudi- mentary conceptions of the fundamental rights of the citizen. " It being therefore clear that the supreme court of the Dis- trict of Columbia did not possess the power to "disregard an answer which was in all respects sufficient and had been regu- larly filed, and to ignore the proof taken in its support, the only question remaining is whether a judgment based upon the exercise of such an assumed power is void for want of jurisdic- tion, and may therefore be collaterally attacked. It cannot 222 FEDEEAL EQUITY PEOCEDUEE. [§ 169. be doubted that where a judgment is rendered without the issuance and service of summons against a party who did not enter an appearance, the court rendering it is without jurisdic- tion to do so, and it can be assailed as void whenever pre- sented as a muniment of right against another. Looking at the substance and not the form of the decree in the case of Hov&y V. McDonald, 1G9 U. S. 150, upon which the rights of the plaintiff in error depend, it is plain that the judgment was one substantially without a hearing; for of what efficacy or avail was the summons to appear when the court which issued the summons rendered its judgment upon the theory that the summons was inefficacious, and that the defendant had no right either to appear or to be heard in his defense? As said by this court in Fostal Teleg. Cable Co. v. Adams, 155 TJ. S. 689: 'The substance, and not the shadow, determines the validity of the exercise of the powers.' " ^ § 169. Against whom the hill may he taken as confessed. A decree cannot be obtained against an infant upon the mere fact of taking the bill pro confesso, nor upon an answer in form by the guardian ad litem. The answer in such case generally is that the infant knows nothing of the matter, and therefore neither admits nor denies the charges, but leaves the plaintiff to prove them, as he shall be advised, and throws himself upon the protection of the court. A decree upon such an answer would not bind the infant, and he could open it or set it aside. A decree cannot be rendered against a minor unless it be on proof of the allegations of the bill; it cannot be taken as con- fessed, nor can the guardian admit the bill so as to bind minor defendants. It is the duty of the court to protect the interests of minors, and refuse to render a decree depriving them of their rights, except on the same proof that would be required if every material allegation of the bill had been denied by an answer; and it is error to render a decree on any less proof. Neither a default nor a decree pro confesso can be taken against an infant. There must be a guardian ad litem appointed for him, and the guardian must file an answer; and the plaint- iff must then make full proof of his right to the relief claimed. Even where the answer of the guardian admits the bill to be 1 Hovey v. Elliott, supra. § 169.J TAKING THE BILL PEO CONFESSO. 223 true, the plaintiff must prove the truth of his allegations with the same strictness as if the answer had interposed a direct and positive denial. A court of chancery will not decree against infants without full proof, though their guardian ad litem con- fess the ground of action. In all suits brought against infants, whom the law supposes to be incapable of understanding and managing their own affairs, the duty of watching over their interests devolves, in a considerable degree, upon the court. They defend by guardian to be appointed by the court, who is usually the nearest relation not concerned, in point of interest, in the matter in question. Iliris a well settled principle that before a decree can pass against an infant defendant in chan- cery, full proof must be made against him, and that proof pre- served in the record or decree. No presumption can be indulged that proof was made against the infant defendant unless it is shown by the record. The answer of a guardian ad litem ad- mitting the truth of the averments in the bill cannot affect the infant's right, but with respect to him all the allegations must be proved with the same strictness as if the answer had interposed a direct and positive denial of their truth.' It fol- lows as a logical necessity from the practice in the English court of chancery in regard to defendants who were idiots, lunatics, or persons of unsound mind, that the bill could not be taken as confessed against such defendants.^ Under the practice of the English High Court of Chancery, if an appear- ance be entered for a defendant who is a married woman, pro- cess for contempt may run against her to compel an answer;' and it would therefore seem that a decree pro confesso could be taken against a married woman under such circumstances. A decree pro confesso may be taken against a corporation.* It is a general rule that a bill may be taken ^/-o confesso against any defendant who is not under any disability.' 1 Mills V. Dennis, 3 Johns. Ch. 367- Sandf. Ch. 109; White v. Miller, 158 370; Walton v. Coulson, 1 McLean, U. S. 128,150; Story's Eq. PI, sec. 871. 130, Fed. Cas. No. 17,133; U. S. Bank 2 1 Smith's Chan. Prac. 146, 359, 360, V. Ritchie, 8 Pet. 138; O'Hara v. 361. McConnell, 93 U. S. 151; Enos v. 3 1 Daniell, 305-319. Capps, 12 m. 356, 358 ; Chaffin v. Kim- < 1 Daniell, 190-193. ball, 33 111. 36, 38; Quigley v. Eoberts, <* Equity Rule 18. 44 IlL 503-506; Wright v. MiUer, 1 224r FEDERAL EQUITY PEOCEDTJEB. [§ 170. § 170. Opening orders and decree pro confess©. — When a final decree pro confesso has been entered in accordance with the rules, " such decree rendered shall be deemed absolute, un- less the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown, upon motion and affidavit of the defendant. And no such motion shall be granted unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause." ^ Under the rule quoted, the requirements of an application to set aside a decree pro confesso are as follows : (1) The application must be made at the same term of the court during which the decree is en- tered ; (2) the application should be made upon motion of the defendant; (3) the application must be supported by the affi- davit of the defendant; (4) the application will not be granted unless upon payment of the costs of plaintiff in the suit up to that time, or such part thereof as the court shall deem reason- able; (5) the application will not be granted unless the defend- ant shall undertake to file his answer within such time as the court shall direct; and (6) unless the defendant shall submit to such other terms as the court shall direct for the purpose of speeding the cause ; (7) the decree can be set aside only " upon cause shown." The application and supporting affidavit should show a meritorious defense ; and the rule in equity that, where a defendant sets up by his answer under oath two inconsistent defenses, the result will be to deprive him of the benefit of either, applies tt> an answer under oath read as an affidavit of merits, on a motion to set aside a decree pro confesso, and the decree will not be set aside where the affidavit sets up two flatly inconsistent defenses." The defendant should state the substance of his defenses in the affidavit upon which the appli- cation is founded, so that the court may see Avhat the alleged defense is, and be able to form an opinion as to whether the 1 Equity Rule 19; French v. Stew- ^Ozark Land Ca v. Leonard, '24 art, 23 Wall 238-250; Allen v. Wil- Fed. R. 660. son, 21 Fed. ».■ 881. § 171.] TAKING THE BILL PRO CONFESSO. 225 defendant has a meritorious defense, or only a mere technical defense, or whether he has any defense whatever.^ A copy of the application and affidavit should be served on the plaintiff.^ The order entered of course upon the rule book, taking the bill as confessed, -will be more readily set aside than will a final decree ^ro confesso; the former will, when the default is satis- factorily explained, be set aside almost as a matter of course.' § 171. Bights of defendant after decree pro confesso against him. — Under the English practice as it existed at the time of the adoption of our present equity rule (in 1842), the defendant, after a decree pro c^fesso and reference for an ac- count, was entitled to appear before the master, to have notice of and take part in the proceedings, provided he obtained an order of the court for that purpose, which would be granted on terms ; * but it was only a defendant who had entered his appearance and against whom the bill had been taken as con- fessed for want of an answer who was so entitled to attend before the master.' But the allegations of the bill cannot be questioned before the master.^ The defendant has the right to take and prosecute an appeal from a final decree pro con- fesso.'' On the appeal the defendant will not be allowed to question the allegations of the bill nor the want of evidence, but he may on such appeal contest the sufficiency of the bill and insist that the averments contained in it do not justify the decree, and anything in the allegations themselves tending to show that the decree is erroneous is assignable for error.* "Where the bill is taken pro confesso, if a decree be passed not confined to the matter of the bill, it may be attacked on ap- iWinship v. Jewett, 1 Barb. Ch. 7 Thomson v. Wooster, 114 IT. S. 173, 183; Goodhue v. Churchman, 1 104-120; Ohio Cent. R Co. v. Central Barb. Ch. 596. Trust Co., 133 U. S. 83-93; Frow v. 2 Goodhue v. Churchman, 1 Barb. De La Vega, 83 U. S. 553-554; Mas- Ch. 596; Bowman V. Bowman, 64111. terson v. Howard, 85 U. S. 99, 106; 75. Brown, Bonnell & Co. v. Lake Supe- ' 3 Wager V. Stickle, 8 Paige Ch. 407. rior Iron Co., 134 U. S. 530, 536; * 3 Daniell, 805; Thomson v. Woos- O'Hara v. McConnell, 93 U. S. 150. ter, 114 IT. S. 104^130. 8 Thomson v. Wooster, 114 U. S. 5 3 Daniell, 805. 104r-130; Ohio Cent. R. Co. v. Central « Thomson v. Wooster, 114 U. S. Trust Co., 133 U. S. 83, 93. 104-130. 15 226 FEDERAL EQUITY PKOCEDUEE. [§ 171. peal for that reason.^ On appeal the decree may be attacked for disry fatal defect in the record, as that the defendant against whom the order ^o confesso was taken was at the time an in- fant, or that the final decree was taken before the expiration of the time limited for defendant to answer.^ Facts not found in the allegations of the bill are inadmissible to affect the de- cree on appeal.' 1 Ohio Cent. R Co. V. Central Trust s Thomson v. Wooster, 114 U. S. Ca, 133 U. S. 88, 93. 114r-120, 2 O'Hara v. McConnell, 93 U. S. 150. CHAPTER IX. MANNER IN WHICH A SUIT MAY BE DEFENDED. § 172. The defenses to a bill, and the order in which they are made. § 172. The defeases to a bill, and the order in which they are made. — The defendant having entered his appearance in the suit on a rule-day, his counsel has until the next rule-day to examine the bill, and to determine upon and prepare and file the defense to the suit.* The defenses to a suit in equity may be by either of the following modes: (1) The defendant may by demurrer demand the judgment of the court whether he shall be compelled to answer the bill or not. (2) He may by plea show some cause why the suit should be dismissed, delayed or barred. (3) By answer controverting the case stated by the plaintiff, he may confess and avoid, or traverse and deny the several parts of the bill ; or, admitting the case made by the bill, may submit to the judgment of the court upon it, or upon & new case made by the answer, or both. (4) By disclaimer he may at once terminate the suit by disclaiming all right in the matter sought by the bill. And all or any of these modes may be joined, provided each relates to a separate and distinct part of the bill.^ An equity rule provides that: " The defend- ant may at any time before the bill is taken for confessed, or afterward with leave of the court, demur or plead to the whole bill, or to part of it, and he may demur to part, plead to part, and answer as to the residue ; but in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea and •explicitly denying the fraud and combination and the facts on which the charge is founded." ^ If the defendant desires to file 1 Equity Rule 18. Dempry, 4 Paige Ch. 135; Clark v. 2Redesdale (6th Am. ed.), 127; 1 Phelps, 6 Johns. Ch. 314; 3 Daniell, Smith's Ch. Pr. 137; Story's Eq. PI., 1, 3. sees. 433, 434, 435, 436; Livingstone 3 Equity Rule 33. j V. Story, 9 Pet. 657; Leaoraft v 228 TEDEEAL EQTJITT PKOOEDUEE. [§ 172. exceptions to the bill for scandal and impertinence, or for either, he should do so before making defense to it.' The successive steps which may be taken by the defendant^ and the order in which they may be taken, are as follows: (1) He may file exceptions to the bill for scandal and imperti- nence, or for either. (2) He may demur to the bill. (3) He may plead to the bill. (4) He may answer the bill. (5) He- may disclaim all right to the matter sought by the bill. Or after his exceptions to the bill for scandal and impertinence are disposed of, he may demur to a part of the bill, plead to a part, answer to a part, and disclaim as to a part; but each of these defenses should relate to a separate part of the bill.^ 1 Equity Eule 37. 435, 436; Livingstone v. Story, 9 Pet. 2 Equity Rules 18, 27, 33; Redes- 657; Leacraft v. Dempry, 4 Paige dale (6th Am. ed.), 137; 1 Smith's Ch. Ch. 125; Clark v. Phelps, 6 Johns. Pr. 127; Story's Eq. PI., sees. 483,434, Ch. 214; 3 Daniell, 1, 3. CHAPTEE X. FILING EXCEPTIONS TO THE BILL FOR SCANDAL AND IMPER- TINENCE. § 173. Objections for scandal and im- pertinence, how taken. 174. When exceptions for scandal and impertinence must bfi filed. § 175. Piling exceptions, and proced- ure thereon. 176. Principles which control in de- ciding upon exceptions for scandal and impertinence. § 173, Objections for scandal and impertinence, how taken. ■" Neither scandal nor impertinence, however gross it may be, is a ground for demurrer, it being a maxim of pleading that utile per inutile non vitiatwr. Where, however, there is scandal or impertinence in a bill, the defendant is entitled to have the record purified by expunging the scandalous and impertinent matter." ' This objection must be taken by exceptions to the bill.^ An equity rule provides that if any bill contains any *' impertinent matter, or any scandalous matter not relevant to the suit, ... it may, on exceptions, be referred to a master, by any judge of the court, for impertinence or scandal, and, if so found by him, the matter shall be expunged at the ■expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to all costs occasioned by the reference."^ § 174. When exceptions for scandal and impertinence must be filed. — The first step that may be taken by a defend- ant, after entering his appearance, is the filing of exceptions to the bill for scandal and impertinence. If, after examining the plaintiff's bill, the defendant's counsel is of opinion that it contains scandal and impertinence, and he desires to have the 1 1 Daniell, 456, 457; Stirrat v. Ex- celsior Mfg. Co., 44 Fed. R. 143; Machinery Co. v. Brown Folding Ma- chine Co., 46 Fed. R. 73, 21 Daniell, 456-460; Pr. 570-575. 3 Equity Rule 36. 1 Smith's Ch. 230 FEDEEAL EQUITY PEOCEDUEE. [§ 1T5. same expunged, he must, before interposing any defense to the bill, and on or before " the next rule-day after the process on the bill shall be returnable," file exceptions to the bill for that purpose. An equity rule provides that : " No order shall be made by any judge for referring any bill, answer or pleading, or other matter or proceeding, pending before the court, for scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed on or before the next rule-day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned unless the party obtaining the order shall, without any unnecessary delay, procure the master to examine and report for the same on or before the next suc- ceeding rule-day, or the master shall certify that further time is necessary for him to complete the examination." ^ This equity rule is substantially the same as the eleventh and twelfth of the English chancery orders of April, 1828,^ which introduced a material change in the English practice. Prior to the Eng- lish orders the practice was " for the defendant to move the court for an order to have the bill referred to a master to re- port whether it was scandalous or impertinent. This reference was obtained of course, and being general, without specifying the particular passages objected to, obviously precluded the party whose pleading was alleged to be scandalous from exer- cising any judgment upon the subject, much, less from submit- ting to have the objectionable passages expunged." To remedy this evil the above ordinances were promulgated.' § 175. Filing exceptions, and procedure thereon. — After stating the court in which the cause is pending, and the style and number thereof, the exceptions should contain, substan- tially, the following caption: Exceptions taken by the defend- ant to the original bill (or amended bill) filed in this cause by the plaintiff, for scandal or impertinence (or both) ; * and such exception should describe the particular passage in the bill thereby objected to as scandalous or impertinent,' which 1 Equity Rule 27. * 3 Smith's Ch. Pr. 619. 2 3 Smith's Ch. Pr. 444. 6 Equity Rule 37. 8 1 Daniell, 456. 457. § 17a(i] EXCEPTIONS FOE SCANDAL AND IMPEETINENOE. 231 may be done by identifying the word, line and folio where the same begins and ends ; ^ and the exceptions should conclude with a prayer that the scandalous and impertinent matter be expunged, and should be signed by counsel and filed with the clerk,^ and an entry thereof should be made on the order book.' Immediately upon filing the exceptions, the defendant's coun- sel should prepare and present to a judge of the court an ap- plication for an order referring the exceptions to a master of the court for his examination and report; the application should state facts showing that the exceptions have been filed within the time and in the manner rqguired by the rules of the court, and should be sworn to, or be accompanied by a certificate of the clerk as to the dates, respectively, of the return-day of the writ and the filing of the exceptions ; and upon the presenta- tion of the application the order of reference will be made as of course.^ The order may be made at chambers in vacation,* and, when made, should be entered on the order book.^ Imme- diately upon the entry of the order of reference, the defend- ant's counsel should cause the exceptions to be presented to the master for hearing, and if the defendant's counsel omit to do so the plaintiff's counsel shall be at liberty forthwith to cause proceedings to be had thereon before the master ; '' and the master should report thereon on or before the next rule-day, or certify that further time is necessary.' The master to whom is referred the bill and exceptions should exercise his judg- ment upon the case and certify his opinion thereon to the court. This certificate is in the nature of a report to the court, no draft of which is necessary, as a party dissatisfied with the master's determination may take the opinion of the court thereon, Avithout objections before the master, by filing excep- tions to the report and bringing it on to a hearing before the court in that shape.' Exceptions to the master's report must be filed within one month from the time of filing the report.^" If the master certifies the biU to be scandalous or impertinent, 1 2 Smith's Ch. Pr. 619. ' Equity Rule 74 2 Equity Rules 26, 27. 8 Equity Rule 27. 'Equity Rule 4 »! Daniell, 457-459; 2 Smith's Ch. * Equity Rules 36, 27. Pr. 160, 161. 5 Equity Rule 1 ; U. S. R. S., see. 638. i» Equity Rule 83. « Equity Rule 4 232 FEDERAL EQUITY PEOCEDUEB. [§ 176. and his report is not excepted to, or if, being excepted to, his certificate and opinion are sustained by the court, the scandal- ous and impertinent matter will be expunged.^ But before the repudiated matter can be expunged, another order is necessary, referring the bill back to the master to expunge the parts which he has certified to be scandalous or impertinent; and thereupon the master will proceed to expunge the scan- dalous or impertinent matter, by striking his pen through it, and setting his initials against the clause expunged.^ The ad- verse party is entitled to notice to attend at the office of the master when he expunges the scandalous and impertinent mat- ter.' § 176. Principles which control in deciding upon excep- tions for scandal and impertinence. — An " exception cannot be partially allowed, and therefore if part of an exception be good, and the rest bad, the whole exception must be overruled." * The best rule to ascertain whether matter be impertinent is to see whether the subject of the allegation could be put in issue or be^given in evidence between the parties.* " The court, in oases of impertinence, ought, before expunging the matter alleged to be impertinent, to be specially clear that it is such as ought to be struck out of the record, for the reason that the error on one side is irremediable, on the other not. If the court strikes it out of the record it is gone, and the party may then have no opportunity of placing it there again ; whereas, if it is left on the record, and is prolix or oppressive, the court at the hearing of the cause has power to set the matter right in point of costs. That consideration has been alluded to by Lord Eldon in Pa/rker V. FairUe, and other cases. It ought to be clear to demonstra- tion that the matter complained of is impertinent before tliat which, if wrong, is irremediable, is done." * " In examining the question whether an allegation or state- ment in the bill is relevant or pertinent, it must be recollected that a bill in chancery is not only a pleading for the purpose of bringing before the court and putting in issue the material 1 Equity Rule 26. » Wood v. Morril, 1 Johns. Ch. 103. 2 1 Daniell, 458, 459. 6 Davis v. Cripps, 2 Y. & Coll. Ch. 8 1 Smith's Ch. Pr. 572. 443. n Daniell, 457. § 176.] EXCEPTIONS FOE SCANDAL AND IMPEETINENOE. 233 allegations and charges upon which the complainant's right to relief rests, as in a declaration in a suit at law, but is also, in most cases, an examination of the defendant upon oath, for the purpose of obtaining evidence to establish the complainant's •case, or to counterprove or destroy the defense which may be ■set up by such defendant in his answer. The plaintiff may, therefore, state any matter of evidence in the bill, or any col- lateral fact, the admission of which, by the defendant, may be material in establishing the general allegations of the bill, as a pleading, or in ascertaining or determining the nature and the extent and the kind of reliqf to which the plaintiff may be -entitled, consistently with the case made by the bill, or which may legally influence the court in determining the question of costs. And where any allegation or statement contained in ithe bill may thus affect the decision of the cause, if admitted by the defendant, or established by the proof, it is relevant, and <3annot be excepted to as impertinent." ^ iHawley v. Wolverton, 5 Paige Oh. 533, 535; Mechanics' Bank v. Levy, 3 Paige Ch. 606. CHAPTER XL DEMURRERS. § 177. The time allowed defendant to file his defense to the bill. 178. Demurrers in equity borrowed from the common law. 179. Lord Redesdale's definition of a demurrer to a bill in equity. 180. Classification of demurrers to relief by Lord Redesdale. 181. Another classification of de- murrers to relief. 182. Same — Demurrers to the ju- risdiction. ' 183. Same — Demurrers to the per- son of plaintiff. 184. Same — Demurrers to the sub- stance of the bill. 185. Same — Demurrers to the form of the bill. 186. Demurrer that the subject is not appropriate for the ex- ercise of judicial power. 187. Same subject continued. 188. Demurrer that the subject of the suit is not within the jurisdiction of a court of equity. 189. Same — Lord Redesdale's sum- mary of the equitable juris- diction. 190. Demurrer that some other court of equity has the proper jurisdiction. 191. Demurrer for want of federal jurisdiction. 193. Demurrer that the plaintiff has no title to the character in which he sues. 193. Demurrer for incapacity of plaintiff to sue alone. §194. Demurrer for defect of par- ties. 195. Demurrer for multifarious- ness. 196. Demurrer for laches. 197. Demurrer based on the stat- ute of limitations. 198. Demurrer based on the stat- ute of frauds. 199. Classification of demurrers to discovery. 200. Consequences of not demur- ring to discovery. 201. Demurrer to bills not orig- inaL 203. General and special demur- rers. 303. Same — In equity must ex- press the causes. 204 Demurrer ore tenus. 305. Statement of the extent of the demurrer. 206. A demurrer bad in part is bad in whole. 307. Demurrer and answer to the same matter, 308. Demurrer too restricted, 309. Admissions made by the de- murrer. 310. Speaking demurrers. 211, Form of demurrer. 312. Certificate of counsel and aflS- davit of defendant. 213. Filing, setting down and hear- ing demurrers. 314 Effect of allowing a demur- rer. 215. Effect of overruling a de- murrer. 216. No demurrers in equity to an- swer and pleas. §§ 177, 178.] DEMTJEEEES. 235 § 177. The time allowed defendant to file his defense to the hill.— It is provided by an equity rule that " it shall be the duty of the defendant, unless the time shall otherwise be en- larged, for cause shown, by a judge of the court upon motion for that purpose, to file his plea, demurrer or answer to the bill in the clerk's office, on the rule-day next succeeding that of entering his appearance." ' It is, however, provided by an- other equity rule that : " The defendant may, at any time before the bill is taken for confessed, or afterwards with the leave of the court, demur or plead to the whole bill, or to part of it, and he may demur to a part, plead ^o a part, and answer as to the residue."^ Under the provisions of these rules the defendant should file his defense on the rule-day next succeeding that on which he enters his appearance ; but if the defendant make de- fault, and the plaintiff fail to take advantage of the default by entering an order pro confesso on the next rule-day, as he may do of course,' the defendant may still, without leave of court, plead, demur or answer at any time before the order pro confesso is actually entered, and afterwards with leave of the court. But the rule requiring the defendant to file his defense on the rule-day next succeeding his appearance is flexible, and must yield when exceptions are filed to the biU for scandal and im- pertinence. The defendant is not bound to file his defense until the bill has been purified from scandal and impertinence ; and, as such exceptions must be filed on or before the next rule- day after the process on the bill shall be returnable, the duty of the defendant to make defense is, in such case, postponed until the exceptions have been disposed of, and the bill returned to the files by the master.* § 178. Demurrers in equity borrowed from the common law. — There was no demurrer in the civil-law system of plead- ing; before a pleading could be filed the party offering it was required to submit it to a judge, who passed upon its legal suf- ficiency and directed it to be amended and filed, or filed with- out amendment, as the case required. Demurrers in equity 1 Equity Rule 18. < Equity Rules 26, 37; Nedby v. 2 Equity Rule 33. Nedby, 11 Eng. Ch. 465. 8 Equity Rule 18. 236 FEDERAL EQUITY PEOCEDUEE. [§ 178. are borrowed from the common law,' and, in treating this sub- ject, it is therefore important to state the general nature of a demurrer to the declaration at common law prior to any legis- lation by parliament upon that subject. (1) A demurrer to the declaration at common law did not deny the facts therein averred, but, on the contrary, admitted on the argument all the facts well pleaded, and referred the questions of law arising upon them to the judgment of the court. The demurrer de- nied the legal sufficiency of the declaration and tendered an issue of law to be decided by the court. (2) At common law demurrers were general or special : general, when no particular cause was assigned ; special, when the particular imperfection was pointed out and insisted upon as the ground of demurrer. At common law a special demurrer was not necessary except in cases of duplicity; but upon a general demurrer the party could assign any grounds of demurrer ore tenus at the bar and could take advantage of all manner of defects, whether of sub- stance or of form, that of duplicity only excepted. If a de- murrer was interposed for duplicity, it was not sufficient to say that the pleading was double, or contained two matters, but the party demurring was required to show specially in what the duplicity consisted. (3) At common law a demurrer was either to the whole or to a part only of the declaration. If a demurrer was to the whole declaration, some part of which ■was good and some part was bad, the demurrer would be over- ruled. Thus, if a declaration in covenant contained several distinct assignments of breaches of covenant, some of which were sufficient and others not, or if the declaration contained several counts and only one was bad, the defendant could only demur to the defective assignment of breach, or to the insuffi- cient count, and if the demurrer went to the whole declaration it would be overruled. (4) A party could not demur unless the defect or objection appeared on the face of the pleading with- out reference to extrinsic matter ; but in some cases, where the plaintiff in his declaration partially states a deed or bond which is defective, or contains matter qualifying the part stated, the defendant may crave oyer of the deed or bond and set forth the whole, thereby making it part of the declaration, and then 1 Langdell's Eq. PL, sees. 92, 93. §§ 179, 180.] DEMUEKKES. 237 demur either in respect of the defect ia the deed or bond, or the improper manner in which the plaintiff has stated it.^ § 179. Lord Redesdale's definition of a demurrer to a bill in equity. — " "Whenever any ground of defense is apparent on the bill itself, either from matter contained in it or from de- fect in its frame, or in the case made by it, the proper mode of defense is by demurrer. A demurrer is an allegation of a de- fendant, which, admitting the matters of fact alleged by the bill to be true, shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer; or th^ for some reason apparent on the face of the bill, or because of the omission of some matter which ought to be contained therein, or for want of some cir- cumstance which ought to be attendant thereon, the defendant ought not to be compelled to answer. It therefore demands the judgment of the court whether the defendant shall be com- pelled to make answer to the plaintiff's bill, or to some certain part thereof. The causes of demurrer are merely upon matter in the bill, or upon the omission of matter which ought to be therein or attendant thereon ; and not upon any foreign matter alleged by the defendant. The principal ends of a demurrer are to avoid a discovery which may be prejudicial to the de- fendant, to cover a defect of title, or to prevent unnecessary expense. If no one of these ends is obtained, there is little use in a demurrer. Tor, in general, if a demurrer would hold to a bill, the court, though the defendant answers, will not grant relief upon hearing the cause. There have been, however, cases in which the court has given relief upon hearing, though a de- murrer to the relief would probably have been allowed. But the cases are rare." ^ This definition has been, in the main, followed by subsequent writers on the subject.' § 180. Classification of demurrers to relief by Lord Redes- dale. — Demurrers to relief were classified by Lord Eedesdale as follows : 1. That the subject of the suit is not within the jurisdiction of a court of equity. 2. That some other court of equity has the proper jurisdiction. 3. That the plaintiff is not 11 Tidd's Prac. 647-650; 1 Chitty's 33 Maddock's Ch. 234, 235; 3 Dan- PI. (9th Am. ed.) 661-665; Gould's PI. iell, 19; Story's Eq. PI., sees. 446, 447, 428-430. 448; 1 Smith's Ch. Pr. 201. 2 Eedesdale (6th Am. ed.), 138-130. 238 FEDERAL EQUITY PROCEDUEE. [§§ 181-183. entitled to sue by reason of some personal disability, i. That the plaintiff has no interest in the subject, or no title to insti- tute a suit concerning it. 6. That the plaintiff has no right to call on the defendant concerning the subject of the suit. 6. That the defendant has not that interest in the subject of the suit which can make him liable to the dlaims of the plaint- iff. 7. That for some reason founded on the substance of the case, the plaintiff is not entitled to the relief he prays. 8. The deficiency of the bill to answer the purposes of complete jus- tice. 9. The impropriety of confounding distinct subjects in the same bill, or of unnecessarily multiplying suits.' This classification was followed, substantially, by Smith in his work on Chancery Practice.^ § 181. Another classification of demurrers to relief. — Cooper, Daniell and Story have classified demurrers to relief substantially as follows: 1. To the jurisdiction. 2. To the per- son of the plaintiff. 3. To the matter of the bill, either as to its substance or as to its form und frame.' And these they have again made the subject of subordinate divisions, which will be presented in; the four following sections. §182. Same — Demurrers to the jurisdiction. — Demur- rers to the jurisdiction are subdivided as follows : 1. That the subject is not cognizable by any municipal court of justice. 2. That the subject is not within the jurisdiction of a court of equity. 3. That some other court of equity is invested with the proper jurisdiction. 4. That some other court possesses the proper jurisdiction ; as that the subject-matter of the suit is within the jurisdiction of either (1) a court of common law; (2) the ecclesiastical court ; (3) the court of admiralty or com- missioners of prize; (4) the court of bankruptcy; (5) some statutory jurisdiction.* § 183. Same — Demurrers to the person of plaintiff. — De- murrers to the person of the plaintiff are subject to the follow- 1 Eedesdale (6th Am. ed.), 131. and the four sections following are 2 1 Smith's Ch. Pr. 201, 203. taken from Daniell (1st ed.) and 3 Cooper, Bq. PL 118 et seq. ; Story's Story's Eq. PI. (10th ed.). Eq. PL, sees. 466-544; 3 DanieU, 34r- < Story's Eq. PL, sees. 467-492; 1 46. The classification of the grounds Daniell, 38-34. of demurrers to relief stated in this §§ 184, 185.] BEMURREES. 239 ing subordinate division: 1. That the plaintiff is not entitled to sue by reason of some personal disability which is apparent on the face of the bill, as where an infant, or a married woman, an idiot, or a lunatic exhibiting a bill appears on the face of it to be thus incapable of instituting a suit alone, and no next friend or committee is named in the bill. 2. That the plaint- iff has no title to the character in which he sues ; as, where it positively appears upon the face of the bill that the plaintiff suing as an executor has not proved the will of his testator, or has proved it in a foreign court; or that the plaintiff sues as administrator in virtue of the grant of administration in a for- eign court; or where an uninccJrporated association of persons sues in the style and character of a corporation.^ § 184. Same — Demurrers to the substance of the bill. — Demurrers to the substance of the bill are : 1. That the plaint- iff has no interest in the subject-matter of the suit, or no proper title to institute a suit concerning it. 2. That although the plaintiff has an interest in the subject-matter of the suit, and a title to institute a suit concerning it, yet he has no right to call upon the defendant to answer his demand. 3. That the de- fendant has no interest in the subject-matter of the suit. 4. That the plaintiff is not entitled to the relief which he has prayed. 5. That the value of the subject-matter is beneath the dignity of the court. 6. That the bill does not embrace the whole matter. 1. That there is want of proper parties. 8. That the bill is multifarious, and improperly confounds distinct demands. 9. That the plaintiff's remedy is barred by length of time. 10. That the object of the bill is to enforce a penalty or a forfeiture. 11. That it appears by the bill that there is another suit pending for the same matter.^ §185. Same — Demurrers to the form of the bill. — The grounds of demurrer to the form of the bill are : 1. The plaint- iff's place of abode is not stated. 2. The facts essential to the plaintiff's right, and within his own knowledge, are not alleged positively. 3. The bill is deficient in certainty. 4. The plaintiff does not by his bill offer to do equity where the rules of the 1 Story's Eq. PI., sees. 493-498; 2 ^2 Daniell, 35-45; Story's Eq. PL, Daniell, 34; Redesdale (6th Am. ed.), sees. 499-527. 176-181. 240 FBDEEAL EQUITY PEOCEDUEE. [§ 186. court requirethat he should do so, or to waive penalties or for- feitures where the plaintiff is in a situation to make such waiver. 5. The want of counsel's signature to the bill. 6. The absence of the proper affidavit in those cases in which the rules of the court require that the plaintiff's bill should be accompanied by- such an instrument.^ § 186. Demurrer that the subject is not appropriate for the exercise of judicial power. — The subject-matter of a suit in equity must be judicial and not political, or the bill will be demurrable. The distinction between judicial power and polit- ical power is acknowledged and maintained in the jurisprudence of both England and this country.^ Under the British consti- tution, and the constitution of the United States and the sev- eral states, the powers of government are divided into three distinct co-ordinate departments : the legislative, the executive,, and the judicial, and each of them is confided to a separate magistracy.' By the federal constitution the judicial power is vested in one supreme court, and in such inferior courts as con- gress may ordain and establish, and the political power of the government is vested in the other two departments. And it is provided that the judicial power shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority.* But, to invoke the action of the judi- cial department of the government, a case must be presented appropriate for the exercise of judicial power; the rights in danger and sought to be protected by the suit must be rights of persons or property, and not merely political rights ; and where a bill and the prayer thereof for relief call for the judgment of the court upon political questions, and upon rights, not of per- sons or property, but of a political nature, the court possesses no jurisdiction over the subject-matter presented, and the bill will be demurrable, or may be dismissed upon motion." i2Danlell,45; Story's Eq. PL, sees. Ves. Sr. 446; Story's Eq. PL, sees. 537-544 468-471. 2New York V. Connecticut, 4 DalL 'Federalist, Nos. XLVI, XLVII, 4; Cherokee Nation v. Georgia, 5 XLVIII, XLIX, L; U. S. Const., arts. Pet. 1; Georgia v. Stanton, 6 WalL 1, 11, III, and constitutions of the sev- 50, 78; Nabob of Carnatic v. East eral states. India Co., 1 Ves. Jr. 375; s. c, 3 Ves. * U. S. Const., art. Ill, sec. 3. Jr. 56; Penn v. Lord Baltimore, 1 " Georgia v. Stanton, 6 WalL 50-7S. § 186.] DEMUEBEES. 241 The state of Georgia filed an original bill in equity in the supreme court of the United States against the secretary of ■war, the general of the army and the commander of the third military district, consisting of the states of Georgia, Florida and Alabama, which district was organized under the acts of congress of March 2, 1867, entitled " An act to provide for the more efficient government of the Eebel States," and an act of the 23d of the same month supplementary thereto, commonly called the " Eeconstruction Acts," for the purpose of restrain- ing the defendants from carrying into execution the several provisions of those acts. The jpill averred and insisted that the intent and design of the acts of congress, as apparent on their face and by their terms, were to overthrow and annul the existing state government, and to erect another and dif- ferent government in its place, unauthorized by the constitu- tion and in defiance of its guaranties, and that the defendants, acting under orders of the president, were about to take mili- tary possession of the state, subvert its government, and sub- ject its people to military rule, and asking the assistance and decree of the court to restrain the defendants from executing in the state of Georgia the provisions of the acts mentioned. It was held by the court that the matters involved and pre- sented for adjudication were political and not judicial, and therefore not the subject of judicial cognizance ; and the bill was, upon motion of the attorney-general, dismissed. Deliv- ering the opinion of the court. Justice Nelson said : " A motion has been made by the counsel for the defendants to dismiss the bill for want of jurisdiction, for which a precedent is found in the case of Rhode Islcmd v. Massachusetts, 12 Pet. 669. It is claimed that the court has no jurisdiction over the subject- matter set forth in the bill or over the parties defendant. And, in support of the first ground, it is urged that the mat^ ters involved and presented for adjudication are political and not judicial, and therefore not the subject of judicial cogni- zance. The distinction results from the organization of the government into the three great departments, executive, leg- islative, and judicial, and from the assignment and limitation of the powers of each by the constitution. The judicial power is vested in one supreme court, and in such inferior courts as congress may ordain and establish; the political power of the 16 242 FEDEEAL EQUITY PEOOEDUEE. [§ 186. government in the other two departments. The distinction between judicial and political power is so generally acknowl- edged in the jurisprudence both of England and this country that we need do no more than refer to some of the authorities on the subject. They are all in one direction. ... By the second section of the third article of the constitution, the judicial power extends to all cases, in law and equity, arising under the constitution, the laws of the United States, and, as applicable to the case in hand, to controversies between a state and the citizens of anpther state, which controversies, under the judiciary act, may be brought in the first instance before this court in the exercise of its original jurisdiction; and we agree that the bill filed presents a case which, if it be the subject of judicial cognizance, would, in form, come under a familiar head of equity jurisdiction; that is. jurisdiction to grant an injunction to restrain a party from a wrong or injury to the rights of another, where the danger, actual or threat- ened, is irreparable, or the remedy at law inadequate. But, according to the course of proceeding under this head in equity, in order to entitle the party to the remedy, a case must be presented appropriate for the exercise of judicial power; the rights in danger, as we have seen, must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity. The re- maining question on this branch of our inquiry is whether, in view of the principles above stated, and which we have en- deavored to explain, a case is made out in the bill of which this court can take judicial cognizance. In looking into it, it will be seen that we are called upon to restrain the defend- ants, who represent the executive authority of the government, from carrying into execution certain acts of congress, inasmuch as such execution would annul and totally abolish the existing state government of Georgia, and establish another and differ- ent one in its place ; in other words, would overthrow and de- stroy the corporate existence of the state, by depriving it of the means and instrumentalities whereby its existence might, and otherwise would, be maintained. . . . That these mat- ters, both as stated in the body of the bill and in the prayers for relief, call for the judgment of the court upon political questions, and upon rights, not of persons or property, but of § 18Y.] DEMUEEEES. ~^ 243 a political character, will hardly be denied. For the rights for the protection of which our authority is invoked are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a state, with all its constitutional powers and privileges. No case of private rights oi* private property infringed, or in danger of actual or threatened in- fringement, is presented by the bill in a judicial form for the judgment of the court." ^ § 187. Same subject continued. — The executive department of the government is charged with the foreign relations of the United States, including the execution and enforcement of treaty stipulations entered into with other nations ; this is a political power — the power and jurisdiction of sovereignty. A treaty is primarily a compact between independent nations. It -depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts can have nothing to do and can give no redress.^ A controversy between two nations concerning a national boundary line is not a judicial question, but a political question for the political de- ipartment of the government. There being no common tribu- nal to decide between them, each determines for itself its own rights, and if they cannot adjust their differences peaceably the right remains with the stronger. The judiciary is not the department of the government to which the assertion of its in- terests against foreign powers is confided; and its duty com- monly is to decide upon individual rights according to those principles which the political departments of the government liSLve established ; ' and the executive department of the United States government having, in its foreign correspondence, and in 1 Georgia V.Stanton, 6 Wall. 50-78. 'Foster v. Neilson, 2 Pet. 353; 2Edye v. Robertson, 113 U. S. 580; United States v. Arredondo, 6 Pet. Foster v. Neilson, 3 Pet. 253; Soulard 691; s. c, 8 Pet. 711; Garcia v. Lee, V. United States, 4 Pet. 511 ; United 13 Pet. 511 ; Williams v. Suffolk Ins. rStates v. Percheman, 7 Pet. 50 ; United Co., 13 Pet. 415. States V. Arredondo, 6 Pet. 691 ; Gar- ■cia V. Lee, 13 Pet. 511. 244 PEDEEAL EQUITY PEOOEDUEE. [§ 18T. the messages of the president to congress, denied the right of Buenos Ayres to the ownership and sovereignty of the Falkland; Islands, it was not competent for a circuit court of the United States, in a suit upon a contract of marine insurance, to inquire into and ascertain by other evidence the title of the government of Buenos Ayres to the sovereignty of those islands ; the action of the executive was conclusive upon the judicial department. '- But a treaty may confer upon or secure to the subjects and citizens of the contracting powers private rights, which are capable of enforcement as between private parties in the courts of the country ; in such case the treaty stipulations, conferring or securing private rights, partake of the nature of municipal law, to which the court resorts for a rule of decision for the ' case before it as it would to a statute. The constitution of the United States makes the treaty a part of the supreme law of the land in all courts where such private rights are to be tried. But so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of the country, it is subject to such acts as congress- may pass for its enforcement or modification.' If an act of congress is in conflict with a treaty made between the United States and a foreign nation, the courts of the United States are bound to follow the statutory enactments of their own govern- ment instead of the treaty; and the judicial department of the government, in cases involving Mexican grants, has no power to set itself up as the instrumentality for enforcing the provis* ions of a treaty with a foreign nation which the government of the United States, as a sovereign power, chooses to disre- gard. If such treaty has been violated by act of congress it is. a matter of international concern, which the two nations must determine by treaty, or by such other means as enable one na- tion to enforce upon another the obligations of a treaty.' The power to levy, collect and disburse taxes is a political power and does not belong to a court of equity; and a bill in equity calling upon the court to assume the executive authority of the state, so far as it relates to the enforcement of a law, and 1 Williams v. Suflfolk Ins. Co., 13 United States v. Peggy, 16 Cranch, Pet. 415. 103. 2 Edye v. Robertson, 112 U. S. 580; ' Botiller v. Dominguez, 130 U. S. 238, 256. § 188.] DEMUEEEES. 245 to supervise the conduct of persons charged with oflBcial duty in respect to the levy, collection and disbursement of taxes, is demurrable.' The power to prescribe a tariff of rates for car- riage by a common carrier is a legislative power and not a judicial power. An inquiry whether rates of carriers are rea- sonable or not is a judicial act ; but to prescribe rates for the future is a legislative act. Congress has not transferred to the Interstate Commerce Commission the power to prescribe a tariff of rates for carriage by common carriers, and therefore the commission cannot invoke the judicial power to enforce any such tariff by it prescribed.^ § 188. Demurrer that the subject of the suit is not within the jurisdiction of a court of equity. — The subject-matter of every original bill in equity filed ih the United States circuit courts must be within the jurisdiction of a court of equity, or the bill will be demurrable ; ' and if a plain defect of equitable jurisdiction appears at the hearing or on appeal, a court of equity will not make a decree, even though no demurrer has been filed.^ The equity jurisdiction of the courts of the United States is derived from the constitution and laws of the United States.* The constitution of the United States, in creating and defining the judicial power of the general government, estab- lishes the distinction between law and equity, and a party who claims a legal title must proceed at law ; but if his claim is an equitable one he must proceed in equity, and according to the rules of equity procedure prescribed by the supreme court of the United States.* The remedies in the courts of the United States are, at common law or in equity, not according to the practice of the state courts, but according to the principles of the common law and equity, as distinguished and defined in that country from which we derived our knowledge of those 1 Heine v. Levee Com'rs, 19 WalL 73 U. a 134, 137; Tyler v. Savage, 143 «55; Louisiana v. Jumel, 107 U. S. 711. U. S. 79; Allen v. Pullman's Palace 2 Interstate Commerce Commis- Car Co., 139 U. S. 658, 663; Lewis v. «ion V. Cincinnati, N. O. & T. P. R. Cooks, 28 Wall. 466. Co., 167 U. S. 479, 513. ^Noonan v. Bradley, 67 U. S. 499- 3 Whitehead v. Shattuck, 138 U. S. 509. 146; Smyth v. New Orleans Canal & " Bennett v. Butterworth, 11 How. Banking Co., 141 U. S. 656. 669, 674. Thompson v. Central Ohio E. Co., 246 FEDERAL EQUITY PEOCEDUEE. [§ 188t principles.^ It is provided by the sixteenth section of the orig- inal judiciary act: " That suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law;"* but the adequate remedy at law which is the test of the equi- table jurisdiction of the courts of the United States is that which existed in England at the time of the enactment of the- original federal judiciary act, approved September 24, 1789.*^ Whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which ajBPords a plain, adequate and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury ; * but the remedyat law, in order to exclude the jurisdiction in equity, must be as practical and as efficient to the ends of justice, and its prompt administration, both in respect to the final relief and the mode of obtaining it, as the remedy which equity would afford under the same circumstances.* While the rule is thoroughly settled that remedies in the courts of the United States are at common law or in equity, according to the essen- tial character of the case, uncontrolled in that particular by the practice of the state courts, yet an enlargement of equita- 1 Thompson v. Railroad Cos., 6 binghaus, 110 U. S. 568; Sullivan v. Wall 134, 137; Robinson v. Camp- Portland & K. R. Co., 94 U. S. 806; bell, 3 Wheat. 313; Ferin v. Holme, Payne v. Hook, 7 Wall. 435; Thomp- 31 How. 481-486; Sheffield Furnace son v. Central Ohio R. Co., 6 WalU Co. V. Witherow, 149 U. S. 574, 580; 134; Oelrichs v. Williams, 15 Wall. Hooper v. Scheimer, 33 How. 335; 311; Shields v. Barrow, 17 How. 130;. Sheirburn v. Cordova, 24 How. 438; Hipp v. Babin, 19 How. 371; Parker Scott V. Neely, 140 U. S. 106. v. Winnipiseogee Lake Cotton & 21 U. S. Stat, at L., ch. 20, sec. 16, Woolen Co., 3 Black, 545; Dade v.. p. 83; U. S. R S., sec. 733. Irwin. 3 How. 383; Magniac v. Thomp- "1 U. S. Stat, at L., ch. 30, sec. 16, son, 15 How. 381; Hay ward v. An- p. 82: U. S. R. S., sec. 733; Buzard v. drews, 106 U. S. 673; New York Guar- Houston, 119 U. S. 347; McConihay anty & Ind. Co. v. Memphis Water V. Wright, 131 U. S. 301; Whitehead Co., 107 U. S. 305; Ferin v. Holme, 21 V. Shattuck, 138 U. S. 146; Scott v. How. 481; Van Norden v. Morton, 99^ Neely, 140 U. S. 105; Smyth v. New U. S. 378; Francis v. Flynn, 118 U. S> Orleans Canal & Banking Co., 141 385. U. S. 656; Tyler v. Savage, 143 U. S. * Buzard v. Houston, 119 U. S. 347^ 79; Kilbourn v. Sunderland, 130 U. 355; U. S. Const, 7th Amend. S. 505; Litchfield v. Ballou, 114 U. S. 5 Kilbourn v. Sunderland, 130 U. S;. 190; Root V. Lake Shore & Mich. S. 505; Tyler v. Savage, 148 U. S. 79; R. Co., 105 U. S. 189; Killian v. Eb- Gormley v. Clark, 134 U. S. 338. § 189.] DEMDREEES. 2i7 ble rights by state statute may be administered by the circuit courts of the United States ; and where the case is one involv- ing a remedial proceeding, essentially of an equitable character, there can be no objection to the exercise of the jurisdiction. ^ § 189. Same — Loi'd Redesdale's summary of the equitable jurisdiction. — Lord Kedesdale, in his discussion of demurrers, makes the following summary of the subjects that are within the jurisdiction of a court of equity: " It may be collected that the jurisdiction, when it (a court of equity) assumes the power of decision, is to be exercised : (1) "Where the principles of law by which the ordinary courts are guided give a right, but the powers of those courts are not sufficient to afford a complete remedy, or their modes of proceeding are inadequate to the purpose. (2) Where the courts of ordinary jurisdiction are made instruments of injustice. (3) Where the principles of law by which the ordinary courts are guided give no right, but, upon the principles of universal justice, the interference of the judi- cial power is necessary to prevent a wrong, and the positive law is silent. And it may also be collected that courts of equity, without deciding upon the rights of the parties, administer to the ends of justice by assuming a jurisdiction.' (4) To remove impediments to the fair decision of a question in other courts. (5) To provide for the safety of property in dispute pending a litigation, and to preserve property in danger of being dissi- pated or destrojj^ed by those to whose care it is by law intrusted, or by persons having immediate but partial interests. (6) To restrain the assertion of doubtful rights in a manner produc- tive of irreparable damage. (7) To prevent injury to a third person by the doubtful title of others. (8) To put a bound to vexatious and oppressive litigation, and to prevent multiplicity of suits. And further, that courts of equity, without pronounc- ing any judgment which may affect the rights of parties, ex- tend their jurisdiction. (9) To compel a discovery, or obtain evidence which may assist the decisions of other courts; and (10) To preserve testimony when in danger of being lost before 1 Gormley v. Clark, 134 U. S. 338; 557; Clark v. Smith, 13 Pet. 195; Slief- Broderick Will Case, 21 Wall. 503, field Furnace Co. v. Witherow, 149 520; Holland v. Challen, 110 U. S. U. S. 574, 580. 15, 25; Frost v. Spitley, 121 U. S. 552, 248 FEDERAL EQUITY PEOCEDUEE. [§ 190. the matter to which it relates can be made the subject of judi- cial investigatiqu." ^ § 190. Demurrer that some other court of equity has the proper jurisdiction. — This ground of demurrer arose out of the peculiar features of the English judicial system. Kegard- ing it Lord Kedesdale said : " It has been before noticed that the establishment of courts of equity has obtained throughout the whole system of our judicial polity, and that most of the inferior branches of that system have their peculiar courts of equity, the court of chancery assuming a general jurisdiction in cases not within the bounds or beyond the power of inferior jurisdictions. The principal of the inferior jurisdictions in England are those of the counties palatine of Chester, Lancas- ter and Durham, and the court of great session in "Wales, the courts of the two universities of Oxford and Cambridge, the courts of the city of London and of the cinque-ports. These are necessarily bounded by the locality either of the subject of the suit or of the residence of the parties litigant. Where the circumstances occur which give them jurisdiction they have exclusive 'jurisdiction in matters of equity as well as matters of law ; and they have their own peculiar courts of appeal, the court of chancery assuming no jurisdiction of that nature, though it will in some cases remove a suit before the decision into the chancery by writ of certiora/ri. When, therefore, it appears on the face of the bill that another court of equity has the proper jurisdiction, either immediately or by way of ap- peal, the defendant may demur to the jurisdiction of the court of chancery. Thus, to a bill of appeal and review of a decree in the court of the county palatine of Lancaster the defendant demurred, because on the face of the bill it was apparent that the court of chancery had no jurisdiction; and the demurrer was allowed. But demurrers of this kind are very rare, for the want of jurisdiction can hardly appear on the face of the bill, at least so conclusively as is necessary to deprive the chancery, a court of general jurisdiction, of cognizance of the suit; and a demurrer for want of jurisdiction founded on the locality of the subject of the suit, which alone can exclude the jurisdiction of the chancery in a matter cognizable in a court lEedesdale (6th Am. ed.), 132, 133. § 190.] DEMUEBEES. 249 ■of equity, has even been treated as informal and improper. This, however, can only be considered as referring to cases where circumstances may give the chancery jurisdiction, and not to cases where no circumstance can have that effect. Thus, the counties palatine have their peculiar and exclusive courts ■of equity under certain peculiar circumstances, which will be more fully considered in another place. The court of chancery will not interfere when all those circumstances attend the ■case, and they are shown to the court; though if those circum- stances are not shown, or if they are not shown in proper time, and the defendant, instead of resting upon them and declining the jurisdiction, enters into the* defense at large, the court, having general jurisdiction, will exercise it. But where no ■circumstance can give the chancery jurisdiction, as in the case alluded to of a bill of appeal and review of a decree in a county palatine, it will not entertain the suit, even though the defend- ant does not object to its deciding on the subject." ^ The Eng- lish High Court of Chancery was a superior court of general •equity jurisdiction, and it was a maxim of that court that " nothing shall be intended to be out of its jurisdiction which is not shown to be so." ^ Beames, discussing the jurisdiction of the superior and infe- rior courts of equity of England, said : " The superior courts of equity have not jurisdiction where the inferior courts of equity have jurisdiction over the matter; " and, after enumerating the inferior courts, he continues : " As so very little is found in Lord Eedesdale's work on this subject, it may be useful to observe that some of the above peculiar jurisdictions are founded on prescription, some on positive statutes, and some on particular charters ; and the old books abound in subtile distinction with reference to the circumstances of the foundation, and its effect in excluding or not excluding the jurisdiction of the superior courts of Westminster HaU. It is not, therefore, quite accu- rate to treat all of these peculiar jurisdictions as equally co- extensive in excluding the jurisdiction of the superior courts; and the cases to which we have referred will suffice both to prove the correctness of this observation, and at the same time to show the particular objections that maybe taken in each of iRedesdale (6th Am. ed.), 174-176. 2Redesdale (6th Am. ed.), 263-364, 250 FEDERAL EQUITY PKOCEDTTEB. [§ 190. these limited jurisdictions. There are, however, a few excep- tions to the jurisdiction of these inferior courts, which, though sometimes stated as exceptions to the jurisdiction of some of them by name, appear of a very general nature, and applica- ble more or less to all of these limited jurisdictions. Previously to our attempting to state them, the reader will observe that, independently of the peculiar circumstances required by its charter, to enable each of the above limited jurisdictions to de- cide the matter, it seems to be a general proposition that the subject-matter ought to be within their jurisdiction, and the litigating parties resident within it. Having made this gen- eral remark, we proceed to state the exceptions which are laid down in the books when referring only to some of these juris- dictions, but which appear more or less applicable to all of them." The author then states the following exceptions which oust the jurisdiction of the inferior courts of equity and vest the jurisdiction in the High Court of Chancery, namely: (1) Where the judge of the inferior equitable jurisdiction is himself a party to the suit. (2) "Where the defendant does not reside in the county palatine. (3) "Where the subject-matter of the suit is not within the jurisdiction, bounds or power of the inferior court of equity, (i) "When the suit is " for things transitory, although they in truth be within the county pala- tine, the plaintiff may by law allege them to be done in any place within England, and the defendant may not plead to the jurisdiction of the court that they were done within the county palatine. (5) Inferior jurisdictions cannot exclude the supe- rior courts of "Westminster in matters where the crown is con- cerned. (6) Nor will an objection that an inferior court has jurisdiction be allowed to oust the cognizance of the superior courts, where, although some of the defendants are entitled to have the matter decided by such inferior court, there are other defendants not so entitled." ^ From the discussions above quoted of the objection " that some other court of equity has the proper jurisdiction," it ap- pears that the principle involved, and the practice arising out of it, are peculiar to the English judicial system. As a part of this system there was : (1) A superior court of equity, possess- 1 Beames' Pleas in Equity, 82-90. § 191.J DEMUEEERS. 251 ing general equity jurisdiction throughout England and "Wales. (2) There were inferior courts of equity of local and limited equity jurisdiction. (3) The superior and inferior courts of equity were all created by the same sovereignty, and were a part of the same system of courts, and derived their powers from, and exercised their judicial functions under, the same au- thority. It is therefore clear that this ground of exceptions to the jurisdiction, derived from the English judicial system, is not technically applicable in the federal courts in either their relations to each other or to the state courts, because: (1) The federal and state courts are created by, and derive their pow- ers from, separate and distinct aufhorities, and constitute sep- arate and distinct systems of courts; and (2) there is not in the federal system a superior court of general equitable jurisdic- tion with inferior courts of local and limited equitable juris- diction, as in the English system ; but (3) as will be shown in the next succeeding section, all of the United States courts are courts of special and limited jurisdiction, deriving their powers from the constitution and laws of the United States; and where a bill in equity is filed in the circuit court of the United States, stating a cause of equitable cognizance, but not one falling within the class of cases confided by the United States consti- tution and laws to the federal courts, then in such case the de- fendant should demur to the bill, not upon the ground " that some other court of equity has the proper jurisdiction," but upon the ground that there is a want of federal jurisdiction.^ § 191. Demurrer for want of federal jurisdiction.— A bill in equity filed in the circuit courts of the United States may state a case clearly within the jurisdiction of a court of equity, and yet be demurrable. It is not sufiicient that the subject of the suit be one of equitable cognizance; but the bill must go farther, and, by proper averments of the jurisdictional facts, show that the suit belongs to a class of cases over which the jurisdiction is, by the constitution and laws of the United States, vested in the federal circuit courts, or the bill will be demur- rable. This rule of pleading results from the all-pervading principle of federal jurisprudence, that the jurisdiction of the federal courts is derived from, and depends alone upon, the iPos«,S 191. 252, FEDERAL EQUITY PEOCEDUEE, [§ 192. constitution and laws of the United States; it is a special and limited jurisdiction, and there are no presumptions in its favor, but every case is presumed to be without the jurisdiction of such courts unless the contrary affirmatively appears from the record. The equity jurisdiction of the United States circuit courts is derived from and defined by the constitution and laws of the United States, is the same in all the states, and is not affected or varied by state statutes and regulations which define the equity powers and jurisdiction of the state courts. This principle of federal jurisprudence is axiomatic. It therefore follows as a logical necessity that every bill in equity in the federal courts must aver the jurisdictional facts which show the case to be one confided by "the constitution and laws of the United States to the court whose jurisdiction is in- voked, or a demurrer will lie. And, indeed, it is the duty of all the courts of the United States, upon their own motion, to deny their own jurisdiction over all cases where it is not made to affirmatively appear, whether or not a defect of jurisgliction is suggested by the parties. The duty of the federal courts in this respect is made imperative by express statutory provisions.^ § 192. Demurrer that the plaintiff has no title to the char- acter in which he sues. — An administrator who has been appointed and obtained letters of administration, or an execu- 1 U. S. Const., art. 3, sec. 3; 24 U. S. Godfrey v. Terry, 97 U. S. 171; Horn- Stat, at L., ch. 373, sees. 1, 6, pp. 434- thall t. Keary, 9 Wall 560; Sullivan 437 ; 25 TT. S. Stat, at L., ch. 866, sees. v. Steamboat Co., 6 Wheat. 450 ; Smith 1, 6, pp. 550-553; 18 U. S. Stat, at L., v. Lyon, 183 U. S. 315, 330; Southern ch, 137, sec. 6, p. 470; Fishback v. Pacific Co. v. Denton, 146 U. S. 203; Western Union Tel. Co., 161 U. S. 96; Shaw v. Quincy Mining Co., 145 U. S. Ex parte Smith, 94 U. S. 455; Metcalf 444, 453; Re Keasby & Mattison Co., V. Watertown, 138 IT. S. 586; Bors v. 160 U. S. 231, 331; Jackson v. Ashton, Preston, 111 U. S. 252, 263; Mansfield, 8 Pet. 148; Strettel v. Ballow, 9 Fed. 0. & L. M. Ry. Co. v. Swan, 111 U. S. R. 256; American Ass'n, Lim., v. 378, 389; King Iron Bridge & Mfg. Eastern Kentucky Land Co., 68 Fed. Co. V. County of Otoe, 120 U. S. 325, R. 721; United States v. Drennan, 237; Hancock v. Holbrook, 112 U. S. Hemp. 320, Fed. Cas. No. 14,993; The 331; Taylor v. Life Ass'n, 112 U. S. Orleans v. Phoebus, 11 Pet. 175; Carey 719; Continental Life Ins. Co. v. v. Curtis, 3 How. 393; Livingston v. Rhoads, 119 U. S. 339; Tennessee v. Jefferson, 1 Brook. 303, Fed. Cas. No: Union & P. Bank, 135 U.S. 454; Brown 8,411; Scott v. Sandford, 16 How. V. Keene, 8 Pet. 115; Capron v. Van 393-633; Johnson v. Christian, 135 Noorden, 3 Cranoh, 136; Turner v. U. S. 645. Bank of North America, 4 Dall. 11 ; § 193.] DEMUEEEES. 253 tor who has proved the will and obtained letters testamentary, in one state cannot, hj virtue of such appointment and letters, maintain an action or suit in another state, in the absence of a statute of the latter state giving effect to such appointment and letters, to enforce an obligation or right in favor of his intes- tate or testator; if he desires to prosecute a suit in another state, he must first obtain a grant of administration, or prove the will and obtain letters therein, in accordance with its laws. In the absence of any statute giving effect to the foreign ap- pointment, all the authorities deny any efficacy to the appoint- ment outside of the territorial jurisdiction of the state within which it is granted. All hold that, in the absence of such statute, no suit can be maintained by an administrator in his official capacity except within the limits of the state from which he derives his authority. The doctrine is applicable alike to both executors and administrators; the right to sue in both instances depending upon the letters.^ And if an executor or administrator file a bill as such outside of the territorial jurisdiction of the state or country within which his letters were granted, and the defect fully appears upon the face of the bill, advantage of such defect can be taken by demurrer.' § 193. Demurrer for incapacity of plaintiff to sue alone. In the English chancery practice, when a bill was filed to re- cover the property of a married Avoman, if that property had not been settled to her separate use, it was necessary that both husband and wife should be joined in the bill as co-plaintiffs, and if they were not both so joined the bill was demurrable. The reasons for this rule were : (1) By the principles of the common law, upon marriage the property of the wife vested in the husband, and he acquired substantial rights in it, and was therefore a necessary party; and (2) the court of chancery, standing in loco jparenUs^ and in the exercise of parental care over the wife, recognized the equity of the wife to a settlement for the support of herself and children out of her own property which had by marriage and the law of the land been bestowed 1 Noonan v. Bradley, 9 Wall. ^ Black v. Henry G. Allen Co., 43 894r-408; Fen wick v. Sears' Adm'rs, Fed. R. 633-625; Eedesdale (6th Am. 1 Cranch, 359; Dixon's Ex'rs v. Earn- ed.), 180, 181; 1 Daniell, 416, 417. sey's Ex'rs, 3 Cranch, 319. 25i FEDERAL EQTTITY PEOCEDUEE. [§ 193. upon the husband, and would not make a decree in favor of the husband until he had consented to such settlement, or until the wife had been given an opportunity to elect whether the property should be decreed to her husband or settled upon her and her children.^ But a bill filed for the recovery of the sep- arate estate of the wife should be in her name as plaintiff by her next friend, and the husband should be made a defendant. The reasons of this rule are : (1) That, as to property settled to her separate use, a married woman is, in equity, a/eme sole, and is entitled to prosecute a suit regarding it upon her own au- thority, independently of her husband ; (2) a bill filed in equity by the husband in the name of himself and his wife is consid- ered as the suit of the husband merely, and the decree does not bind the wife, and cannot be pleaded in bar to a subsequent suit by her and her next friend against the same defendants, although the relief prayed is the same in both suits ; (3) a bill by a married woman to recover property as her separate estate and settled to her separate use is, in fact, a suit against the hus- band, inasmuch as it is inconsistent with his common-law mari- tal rights. And, under the English rule, if the husband join as co-plaintiff in the bill touching the separate estate of the wife, the defendant may demur; but if the objection is taken by de- murrer, the court will allow an amendment, by striking out the name of the husband as plaintiff and making him a defendant, and by inserting the name of some other person as next friend of the wife.^ The rule as announced by the supreme court of the United States allows the husband to be named in the bill as the next friend of the wife, in suits touching her separate estate, where his acts are not complained of;' and it has been held by the circuit courts in New Jersey and North Carolina that a married woman must sue and be sued jointly with her husband, unless she claims some right in opposition to him, when in such case her next friend, with her consent, may sue 1 1 Daniell, 118-121. 7 Ch. D. 830; Dewall v. Covenhoven, 2 1 Daniell, 136, 150, 155; Story's 5 Paige Cli. 581; Alston v. Jones, 3 Eq. PI., see. 63; Wake v. Parker, 1 Earb. Ch. 397; Ludlow v. Maddock, Keen. 59; England v. Downs, 1 Beav. 1 Ch. Sent. 20; Grant v. Van Sohoon- 99; Owden v. Campbell, 8 Sim. 551; hoven, 9 Paige Ch. 255; Bowers v. Sigel V. Phelps, 7 Sim. 339; Thorp v. Smith, 10 Paige Ch. 193. Yeates, 1 Y. & C. Ch. 438; Davis v. 3Bein v. Heatli, 6 How. 228. Prout, 7 Beav. 288; Roberts v. Evans, § 194.] DEMUEEKTIS. 255 on lier behalf, and her husband be made a party defendant.^ If an infant, an idiot or lunatic sue without a next friend or •committee being named in the bill, a demurrer will lie, and the objection extends to the whole bill, and advantage may be taken of it in a bill for discovery merely as well as in a bill for relief.^ § 194. Demurrer for defect of parties.— In the federal oourts parties are classified as: (1) Formal parties, who are those persons who have no interest in the controversy between the immediate litigants, but have an interest in the subject- matter which may be convenieStly settled in the suit and thereby prevent further litigation, and may be made parties or not, at the option of the plaintiff. (2) I^Jecessary parties, who are those persons who have an interest in the controversy, but whose interests are separable from those of the parties before the court or the immediate litigants, and will not be directly affected by a decree which does complete and full justice be- tween them ; such persons should be made parties if practicable, but if they are beyond the jurisdiction of the court, or if mak- ing them parties would oust the jurisdiction of the court, the case may proceed to a final decree without them. (3) Indis- pensable parties, who are those persons who not only have an interest in the subject-matter of the controversy, but an interest of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in. such a condition that its final determination may be wholly in- consistent with equity and good conscience ; and in such case the court refuses to entertain the suit, when the parties cannot be subjected to its jurisdiction.' And if it appear upon the face of the bill that there is a defect of parties it may be taken advantage of by demurrer.* A demurrer for want of parties must show who are the proper parties; not indeed by name, for 1 Douglass V. Butler, 6 Fed. E. 228; WalL 450; Coiron v. Millaudon, 19 Taylor v. Holmes, 14 Fed. R. 498. How. 113; Williams v. Bankhead, 19 2 3 Daniell, 34, 35; Redesdale (6th Wall. 563; Kendig v. Dean, 97 U. S. Am. ed.), 176, 177. 433; Alexander v. Horner, 1 Mc- ' Shields v. Barrow, 17 How. 130, Crary, 634, Fed. Cas. No. 169. 139; Barney v. Baltimore, 6 Wall. ^g Daniell, 35; Redesdale (6th Am. 280, 391; Chadbourne v. Coe, 51 Fed. ed.), 206, 207; Story v. Livingston, 13 E. 80, 81; Ribon v. Railroad Cos., 16 Pet. 859, 375. 256 FEDEEAL EQUITY PEOCBDUEE. [§ 194. that might be impossible ; but in such manner as to point out to the plaintiff the objection to his bill, and enable him to amend by adding the proper parties.* But if a bill, by proper averment, show a sufficient reason for not bringing a formal or necessary party before the court, it will not be demurrable.^ But the equity rules provide such a speedy and simple method of raising and disposing of a defect of parties in the bill, by a suggestion of such defect in the answer, and an immediate hear- ing thereon, that a demurrer for such cause is unnecessary. By one of these rules it is provided that: "Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order books, in the form or to the effect following, that is to say: Set down upon the defendant's objection for want of par- ties. And where the plaintiff shall not set down his cause, but shall proceed therewith to a hearing notwithstanding an objec- tion for want of parties taken by answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill." ' And another rule provides that : " If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or description of parties to whom the Oibjection applies, the court, if it shall think fit, shall be at liberty to make a de- cree saving the rights of the absent parties." * These rules are literal copies of the fifty-second and fifty-third of the English chancery orders of 1841. Courts Of equity are always unwill- ing to turn a plaintiff out of court on the objection for want of parties made at the final hearing. If they deem it essential that a person should be made a party who has not been made such, they will generally allow the cause to stand over in order that he may be brought in.' 1 Redesdale (6th Am. ed.), 208. 3 Equity Rule 53. « Equity Rule 47; Redesdale (6th < Equity Rule 53. Am. ed.), 307; Union Bank of Louisi- 'Townsend Savings Bank v. Ep- ana v. Stafford, 13 How. 337. ping, 8 Woods, 390, Fed. Cas. No. §§ 195, 196.] DEMUEEEES. 25Y § 195. Demurrer for multifariousness.— If separate, dis- tinct and different matters, having no connection with each other, are joined in one bill against several defendants, a part of whom have no interest in or connection with some of the distinct matters for which suit is brought, so that such defend- ants are put to the unnecessary trouble and expense of answer- ing and litigating matters stated in the bill in which they are not interested, and which are not so connected with the matters in which they are interested as to render it proper for the con- venient administration of justice to litigate and dispose of the whole in one suit, the bill will bedemurrable for multifarious- ness ; but if the object of the suit be single, but different per- sons have separate interests in distinct questions which arise out of the single object, or if the bill presents a common point of litigation, in which all of the parties are interested, and the decision of which will affect the whole subject-matter, and will settle the rights of all the parties to the suit, although the de- fendaJits have separate interests in distinct questions arising out of the suit, the bill will not be demurrable for multifarious- ness.' This objection should always be taken by demurrer, and must be determined by the structure of the bill alone.^ §196. Demurrer for laches, — It is now well settled that, independently of any limitation prescribed for the guidance of courts of law, equity may, in the exercise of its own inher- ent powers, refuse relief where it is sought after undue and unexplained delay, and when injustice would be done, in the particular case, by granting the relief asked ; in such case a court of equity will decline to extricate the plaintiff from the position in which he has inexcusably placed himself, and leave 14,130 (opinion by Bradley, Circuit First Nat. Bank v. Moore. 48 Fed. R. Justice). 799; Northern Pacific R. Co. v. Wal- U Daniell, 439-451; Newland v. ker, 47 Fed. R681; Chase v. Cannon, Rogers, 3 Barb. Ch. 432, 436; Kelley 47 Fed. R. 674; Gaines v. Chew, 3 V. Boettcher, 85 Fed. R 64; Hoyden How. 619; Groves v. Corbin, 183 U. S. V. Thompson, 71 Fed. R 60, 67; Chaf- 526; Binkershoff v. Brown, 6 Johns, fin V. Hull, 39 Fed. R 887; Prentice Ch. 189; Fellows v. Fellows, 4 Cow. V. Storage Co., 58 Fed. R 437, 441; 683-703. See ante, §§ 130, 131, 133, Barcus v. Gates, 89 Fed. R 791; Cur- 133. ran v. Campion, 85 Fed. R 68, 70; 2Nelson v. Hill, 5How. 137; Gaines Pullman v. Stebbins, 51 Fed. R 10; v. Chew, 3 How. 619. 17 258' FEDEBAL EQUITT PEOCEDUEE. •-- [§ 19ff. him to such remedies as he may have in a court of law.^ "No rule of law is better settled than that a court of equity will not aid a party whose application is destitute of conscience, good faith and reasonable diligence, but will discourage stale demands for the peace of society, by refusing to interfere where there have been gross laches in prosecuting rights, or where long acquiescence in the assertion of adverse rights has oc- curred. The rule is peculiarly applicable where the difficulty of doing entire justice arises through the death of the principal participants in the transaction complained of, or the Avitness or witnesses, or by reason of the original transaction having be- come- so obscured by time as to render the ascertainment of the exact facts impossible. Each case must necessarily be gov- erned by its own circumstances, since, though the lapse of a few years may be sufficient to defeat the action in one case, a longer period may be requisite in another, dependent upon the situation of the parties, the extent of their knowledge or means of information, great changes in values, the want of probable grounds for the imputation of intentional fraud, the, destruc- tion of specific testimony, the absence of any reasonable im- pediment OP hindrance to the assertion of the alleged rights.' Laches does not, like limitation, grow out of the mere passage of time, but out of the inequity of permitting a claim to be en- forced, arising from some change in the condition or relations of the property or parties.' While it is true that, by reason of the differences o^ facts in the adjudicated cases, no one case •becomes an exact precedent for another, yet a uniform prin- ciple pervades them all. They proceed upon the assumption 1 Abraham v. Ordway, 158 TJ. S. WalL 178; Lansdale v. Smith, 106 416, 423; Wagner v. Baird, 7 How. U. S. 393; Norris v. Hoggin, 136 U. S. 234; Harwood v. Cincinnati & 0. A. 386; Maokall v. Casilear, 137 U. S. ,L. E. Co., 17 Wall. 78. 81; Sullivan 556; Hanrier v. Moulton, 188 U. S. V. Portland & K. E. Co., 94 U. S. 806, 486; Halsey v. Cheney, 68 Fed. E. .811; Brown v. Buena Vista County, 763; Alsop v, Eiker, 155 U. S. 448, 95 U. S. 157, 159; Hayward v. Eliot 461; Gildersleeve v. New Mexico Nat. Bank, 96 U. S. 611, 617; Lans- Mining Co., 161 U. S. 573, 583, dale V. Smith, 106 U. S. 391, 393; 'Alsop v. Eiker, 155 U. S. 448, 461; . Speidel v. Henrick, 130 U. 8. 877, Galliher r. Caldwell, 145 U. S. 368, 887;, Eichards v. Maokall, 134 U. S. 376; Bartlett v. Ambrose, 78 Fed. R. 183, 188; Darcy's Ex'rs v. Cheney, 34 839; Halstead v. Grinnan, l53 U. S. U. 8. App. 56, 57. 413, 435; Penn Mut. Life Ins. Ca v. 2 Hammond y. Hopkins, 143 U. S. City of Austin, 168 U. 8. 685-701. 234, 374; Marsh v. Wliitmore, 31 §. 196.] DEMUEEEES.. 259 that the party to whom laches is imputed had knowledge of his rights, and an ample opportunity to establish them in the proper forum; that by reason of the delay the adverse party Jbad good reason to believe that the alleged rights are worth- less or have been abandoned; and that because of the change in condition or relations during this period of delay, it would be an injustice to the adverse party to permit the party guilty of the delay to assert his alleged rights.^ The defense of laches is one which, wisely administered, is of great public utility, in that it prevents the breaking up of relations and situations long acquiesced in, and thus induce* confidence in the stability ■of what is, a,nd a willingness to improve property in possession; and at the same time it certainly works in furtherance of jus-- tice, for so strong is the desire of every man to have the full •enjoyment of all that is his, that, when a party comes into court •and asserts that he has been for many years the owner of cer- tain rights, of whose existence he had full knowledge and yet has never attempted to enforce them, there is a strong persua- ision that, if all the facts were known, it would be found that the alleged rights either never existed or had long since ceased. The length of time during which the party neglects the asser- tion of his rights, which must pass in order to show laches, ■varies with the peculiar circumstances of each case, and is notj like the matter of limitations, subject to an arbitrary rule. It is an equitable defense, controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant to the rights such, that it would be inequitable to permit ,the plaintiff to now assert them. There must of course have been knowledge ^n the part of the plaintiff of the exist- ence of the rights, for there can be no laches in failing to as- sert rights of which a party is wholly ignorant, and whose •existence he had nq reason to apprehend. And yet the defense of want of knowledge on the part of one charged with laches is one easily made, easy to prove by his own oath, and hard to disprove; and hence" the tendency of courts in recent years has been to hold the plaintiff to a rigid compliance with the law, which demands, not only that he should have been igno- rant of the fraud, but that he should have used reasonable dili- iGalliher v. Caldwell, -145 U. S. 368, 376; Penn Mut. Life Ins. Co. v. City ■of Austin, 168 U. S. 685-701. ' ' 26Q TEDEEAL EQUITY PEOCEDUEE. [§ 197. gence to have informed himself of all the facts.^ The mere institution of a suit does not of itself relieve a person from the charge of laches ; and if he fail in the diligent prosecution of the action, the consequences are the same as though no action had been begun.'' If it appears upon the face of the bill that the plaintiff is. chargeable with laches in the assertion of his rights, the defect may be taken advantage of by demurrer. Laches is a defense Vi^hich may be made by demurrer or by plea, or by answer, or presented by argument, either upon a preliminary or final hear- ing, or the court may upon its own motion refuse to consider plaintiff's case where it appears that he is chargeable with, laches.' § 197. Demurrer based on the statute of limitations. — When the statute of limitations would be a bar at law, the same rule is undoubtedly applied in a court of equity. And where it appears upon the face of the bill that the case which it makes is barred by the statute of limitations, and the plaintiff states no circumstances which take the case out of the opera- tion of the statute, the defendant may take advantage of the defect by demurrer, and is not bound to plead or answer.* If the plaintiff desires to avoid the operation of the statute by bringing his ease within some exception to it, the facts which bring the case within the exception should be explicitly alleged in the bill, or in an amended bill if the bill as originally drawn iHalstead v. Grinnan, 153 U. S. 15 Pet. 333; Piatt v.Vattier, 9 Pet. 413, 435; Poster v. Mansfield, C. & 405; Mercantile Nat. BanK v. Car- L. M. R Co., 146 U. S. 88. penter et al., 101 U. S. 567, 568; Cod- 2 Johnston v. Standard Min. Ca, dington v. Pensacola, etc. E. Co., 103 148 U. S. 360. U. S. 409; Merrill v. Town of Monti- 8 Woodmance & Hewitt Mfg. Co. cello, 66 Fed. R. 163, 169; Hinchman V. Williams, 68 Fed. R. 489; Mo- v. Kelley, 54 Fed. E. 68, 67; Boardof Laughlin v. Railway Co., 31 Fed. R. Supervisors of Henry County v. Win- 574; Maxwell v. Kennedy, 8 How. nebago Swamp Drainage Co., 52 111. 233; Richards v. Mackall, 134 IT. S. 454; Ilett v. Collins, 103 IlL 74; Bell 183, 189; Badger v. Badger, 3 Wall. t. Johnson, 111 IlL 374; Wisner v, 87; Sullivan V. Portland & K. R Co., Ogden, 4 Wash. 631, Fed. Cas. No. 94 U. S. 811; Coddington v. Pensa- 17,914; Van Hook v. Whitlock, 7 cola & Ga. R. Co., 103 U. S. 409; Paige Ch. 373; Humbert v. Trinity Penn Mut. Life Ins. Co. v. City of Church, 7 Paige Ch. 195; 2 Daiiiell. Austin, 168 U. S. 685-70L 42, 45; Story's Eq. PL, sees. 484, 503, < Rhode Island v. Massachusetts, 751. § 1-97.] DEMIJEEEES. 261 contains no suitable allegation to meet the bar.' If it do not clearly and distinctly appear from the bill that the suit is barred by limitation, a demurrer setting up such bar should be overruled, although the facts when fully developed on the trial' may establish such defense.^ As a general rule, doubtless, length of time is no bar to a trust clearly established, and ex- 3)ress trusts are not within the statute of limitations, because the possession of the trustee is presumed to be the possession of his cestui que trust? But this rule is in accordance with the reason upon which it is founded, and subject to this qualifica- tion, that time begins to run against a trust as soon as it is Openly disavowed by the trustee*insisting upon an adverse right and interest which is clearly and unequivocally made known to the cestui que trust; as when, for instance, such trans- actions take place between the trustee and the cestui que trust as would in case of tenants in common amount to an ouster of one of them by the other.^ In cases of an implied or construct- ive trust, unless there has been a fraudulent concealment of the cause of action, lapse of time is as complete a bar in equity as at law.* Courts of equity sometimes act in obedience to the statute, and sometimes apply it by way of analogy. Where the cause of action is legal and the statute has barred the remedy at law, the defense is as complete in equity as at law ; but where the case falls within the proper, peculiar and exclusive juris- diction of a court of equity the statute is not necessarily ap- plied.* In a case over which there was concurrent jurisdiction at law and in equity, decided by the supreme court of 'New York in 1822, Spencer, Chief Justice, discussing the application of the statute of limitations to trusts, said : " I am aware that Courts of equity do take cognizance of matters of account, but not as upon a trust. They do so because it is supposed that 1 Piatt V. Vattier, 9 Pet. 405; Hum- ona fide purchaser, for a valuable consideration, without notice of plaintiff's title, the plea, in this class of its averments, should state every substan- tive fact necessary to constitute that defense. Whatever may be the character of the defense relied on in the plea, these averments should contain a clear, direct and positive state- ment of all the facts necessary to render the plea a complete legal and equitable bar to the case made by the bill, or to that part of it to which the plea extends. A plea must state facts, as contradistinguished from arguments, inferences and con- clusions of law ; and the facts must be stated with the same certainty, strictness and exactness as in a plea in an action at law. A plea which avers a conclusion of law, without stating the facts which lead to that conclusion, is bad. It is the duty of the defendant to plead the facts, in order that the plaintiff may take issue upon them ; and the defendant should not as- sume to himself the province of the court, to whom it belongs to draw the legal conclusions from the facts.^ (2) The office of the second class of averments of a plea i^, not to set up the bar itself, but to exclude intendments against the operation of the bar. These averments are inserted in the plea to negative the special matter set up in the bill to an- 13 Daniell, 100; Adams' Eq. 338; 346, 847; Beames' Pleas in Equity, Allen V. Randolph, 4 Johns. Ch. 693; 34-29; 3 Daniell, 107, 108; Story's .Fish V. Miller, 5 Paige Ch. 26; Bogar- Eq. PI., sees. 658, 662, 665, 666; Hard- dus V. Trinity Church, 4 Paige Ch. man t. Ellames, 5 Sim. 640; Mc- -178; Bolton v. Gardner, 3 Paige Ch. Closkey t. Barr, 38 Fed. R 165; Sal- 273. ter v. Tobias, 3 Paige Ch. 338; Drix 2 Redesdale CCth Am. ed.), 281-384, v. Briggs, 9 Paige Ch. 595. 302 PEDEEAL EQUITY PKOCEDUEE. [§ 230. ticipate and avoid the bar set up in the plea; and such aver^ ments are necessary to the validity of the plea, for if there are any charges in the bill, such as fraud or notice of title, ■which is an equitable circumstance in favor of the plaint- iff's case against the matter pleaded, or if there is alleged in the bill any fact or facts which, if admitted to be true, -would be evidence to counterprove the averments of fact constitut- ing the bar set up by the plea, the court will conclude such matters to be true as against the pleader, unless they are met by averments in the plea; and the oflBce of such averments is to exclude the intendments and conclusions of the court against the truth of the plea. The office of this class of averments in the plea is to meet and deny all matter in the bill intended to avoid the defense contained in the plea; and they are ab- solutely essential to the validity of the plea, for every fact stated in the bill and not denied by the plea must be taken as true. If the bar relied on in the plea be a decree, or a release, or an award, or an account stated, or any other matter which is impeached by the bill for fraud, the plea should, in the sec- ond class of its averments, negative all the facts and circum- stances set up in the bill to establish the fraud. If the bar relied on be that of innocent purchaser, the plea must negative all the facts alleged in the bill to charge defendant with no- tice. In every case where there is any statement or charge in the bill, which, if uncontradicted, would avoid the effect of the matter pleaded, such statement or charge must be denied by averment in the plea.^ § 230. Statement of the extent of the plea.— The defend- ant may, as we have seen, demur or plead to the whole bill or to part of it, and he may demur to a part, plead to a part, and answer to the residue ; ^ and he may plead several separate pleas to different and distinct parts of the bill.' But whenever a plea or demurrer does not extend to the whole bill, or there is a de- murrer as to one part and a plea to another part, or separate pleas to distinct parts of the bill, the plea or demurrer should 12 Daniell, 109-112; Bogardus v. Stearns v. Page, 1 Stxjry, 240, Fed. Trinity Church, 4 Paige Ch. 195; Cas. No. 13,339. Allen V. Randolph, 4 Johns. Ch. 493; ^ Equity Rule 33; Livingston v* Eedesdale (6th Am. ed.), 381-380; Story, 9 Pet 633; 2 Daniell, 100. aSDanieU, 105, 106. § 231.J PLEAS. 303 clearly express what part of the bill it is intended to cover, or the particular parts to which each defense is intended to be ap- plied.i An equity rule provides that: "No demurrer or plea shall be held bad and overruled upon argument because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea." ^ This rule does not allow the defendant to demur to the whole bill and answer to the whole bill at the same time ; the effect of such pleading is that the plea is taken as a waiver of the de- murrer, and the answer as a waiver of the plea.' The thirty- seventh equity rule applies only in cases where the demurrer or plea extends to only a part of the bill, and the answer is in- tended to cover the residue. Under the practice as it existed previous to the adoption of this rule, if the plea was to a part only and the answer to the remainder, and such answer by in- advertence or otherwise referred to the matter covered by the plea, the effect was to overrule the latter; and this rule was intended to obviate that hardship.'' Another equity rule pro- vides that : " No demurrer or plea shall be held bad and over- ruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have ex- tended to." » § 231. Plea bad in part and good in part. — The rule that a demurrer cannot be bad in part and good in part is not appli- cable with the same strictness to a plea, for it has been repeat- edly decided that a plea in equity may be bad in part and not in the whole, and the court will allow it to so much of the bill as it is properly applicable to ; but this rule is to be understood with reference to the extent of the plea ; that is, to the quantity of the bill covered by it, and not to the ground of the defense offered by it, and if any part of the defense made by the plea is bad the whole must be overruled.* It is a well settled rule in iVan Hook v. Whitlook, 3 Paige 574; Bolton v. Gardner, 3 Paige Ch. Ch.409,418; SDaniell, 106; Redesdale 373; Lacraft v. Demprey, 4 Paige (6th Am. ed.), 351. Ch. 124. 2 Equity Rule 37. * Himtington v. Laidley, 79 Fed. E. 3 Crescent City & C. Co. v. Butch- 865. ers' Union & C. Co., 12 Fed. R 225, s Equity Rule 36. 326; Clark V.Phelps, 6 Johns. Ch. 314; sPeames' Pleas in Equity, 46; 8 Souzer v. De Meyer, 2 Paige Ch. DanieU, 106, 107. 304 FEDERAL EQUITY PEOCEDUEE. [§ 232. chancery that a plea may be good in part and bad in part; and where a plea is more extensive than the subject-matter to which it relates, it will be allowed to stand as to so much of the bill to which it properly applies, and the defendant must answer as to the residue.' § 232. Answer in support of a plea.— When should a plea be supported by an answer ? The solution of this question der pends upon the solution of the two further questions, namely: (1) What issue of fact is raised by the plea ? and (2) What is the office of an answer in support of a plea ? " Nothing can be in issue on a plea but that which is contained in the plea; and every charge in the biU not negatived by the plea is taken to be true on argument of the plea." ^ And at the hearing upon plea, replication and proofs, no fact is in issue between the par- ties but the truth of the matter pleaded.' If the plaintiff in his bill alleges any fact or facts in avoidance or disproof of the defense set up by the plea, the plea must, to be valid, negativiB those facts, and they are thereby put in issue. If the bill be brought to impeach a decree, or a release, or an award, or an account stated, for fraud, it must set up the facts which con- stitute the fraud, and, at the option of the pleader, may set up in detail the probative facts and circumstances which prove the fraud; and the defendant interposing a plea to such biU, must in his plea state the decree, or release, or award, or ac- count stated, as the case may be, and must, in like manner, in his plea deny the allegations of the biU setting up the facts constituting the fraud,; and must also -deny the circumstances set up in proof of the fraud ; and such a plea puts in issue all matters of fraud charged in the biU. And if the decree, or re- lease, or award, or account stated is not admitted by the bill, but is set up by way of pretense only, then it is also in issue. But if the decree, or release, or award, or account stated is ad- mitted by the biU by a substantive allegation, then the only issue raised by the plea is the fraud and the circumstances charged in proof of it, and all other matters in the biU are ad- jnitted to be true. If the plaintiff bring a bill to recover an 1 French v. Shotwell, 5 Johns. Ch. s Farley v. Kittson, 120 U. S. 303, 555. 318; Rhode Island v. Massachusetts, 2Redesdale(6th Am. ed.), 283, 284. 14 Pet. 210. § 232.] PLEAS. 305 estate, and, anticipating that defendant will claim that he is an innocent purchaser, alleges that defendant had notice of plaint- iff's claim and title, and charges facts and circumstances from which notice may be inferred, the defendant, pleading that he is an innocent purchaser, must aver all the facts which are nec- essary to constitute that defense, and must by averments in his plea deny all the facts and circumstances charged in the biU as evidence of notice, and such facts are then in issue ; and no fact is in issue except the matters contained in the plea, and aU other allegations in the bill are by defendant's form of pleading admitted to be true.^ In the instances above given as illus- trations, the plea being held good upon argument, the plaintiff must file the general replication, and go to the proof upon the issue raised by the plea ; ^ and upou the trial of such issue, the existence of the decree, release, award or account stated being admitted by the bill, the burden is on the plaintiff to prove the fraud charged in the biU to avoid the defense set up in the plea.' Now, inasmuch as upon the trial of the issue raised by the plea the burden is upon the plaintiff to prove his case, in so far as it is not admitted by the plea, he is, under the cardi- nal principles of equity pleading, entitled to a discovery from the defendant to prove or to aid in the proof of his case; and the fact that the defendant defends by plea instead of by answer cannot deprive the plaintiff of his right to discovery. "Where the defense is by plea, the plaintiff is entitled to all the discovery that may be necessary to try the truth and validity of the plea, and this right, so far as the matter of the plea is concerned, is just as extensive when the defense is made by plea as when it is made by answer." But, as no discovery can be given in a plea,' the defendant is required to give the appro- priate discovery in an answer in support of his plea, as it is one 1 Redesdale (6fch Am. ed.), 281, 286; » Langdell's Eq. PL, sec. 101. Beames' Pleas in Equity, 24-33; Allen «Wigram on Discovery, 11, 12; V. Randolph, 4 Johns. Ch. 693; Bo- Stearns v. Page, 1 Story, 204, Fed. gardus v. Trinity Church, 4 Paige Cas. No. 13,339; Everet v. Watts, 10 Ch. 178; 2 DanieU, 108, 109. 110, 111, Paige Ch. 82; Redesdale (6th Am. 112: Bolton v. Gardner, 3 Paige Ch. ed.), 284, 285. 273; Rhode Island v. Massachusetts, * 2 DanieU, 112, 113; Heart v. Corn- 14 Pet. 210. ing, 3 Paige, 566; Farley v. Kittson, 2 United States v. Dalles Military 120 U. S. 303, 318. Road Co., 140 U. S. 599, 634; Rhode Island V. Massachusetts, 14 Pet 210. 20 306 FEDERAL EQUITY PEOCEDUEE. [§ 233. of the offices of an answer to give discovery .* The answer iu such case is no part of the defense; it is nothing more than the plaintiff has a right to require, as evidence for the purpose of trying the truth and validity of the plea.^ In order to fully understand the office of an answer in sup- port of a plea it is necessary to recur to the peculiar character of the pleadings and proceedings in a suit in equity, A bill in equity is (1) a pleading for the purpose of bringing before the court and putting in issue the material allegations and charges upon which plaintiff's right to relief depends ; and (2) the bill is an examination of the defendant upon oath for the purpose of obtaining evidence to establish the plaintiff's case, or to dis- prove the defense which may be set up by the defendant.' And the answer of defendant embraces two things which are essentially distinct from each other, namely : (1) The defense of the defendant to the case made for relief by the bill against him ; and (3) the examination of the defendant, consisting of the discovery sought by the bill, to prove the plaintiff's case, and to disprove the defense of the defendant.* And it is in the latter sense only that a plea is required to be supported by an answer; the office of such answer is, not to defend the ac- tion, but to furnish the plaintiff evidence to try the truth and validity of the plea." § 233. Same — When required. — As we have seen, an an- swer in support of a plea is no part of the defense, but is merely discovery to be used in trying the truth and validity of the plea. The whole office and function of such an answer is to give evidence, and not to make defense to the bill; its office is discoviery, and not defense. The next inquiry then is, when should a plea be supported by an answer ? or in what cases is a defendant required to accompany his plea by discovery to be used on the trial of the truth and validity of the plea ? The rule has been stated as follows : " The cases in which it is nee- 1 Wigram on Discovery, 11, 94, 113, * Wigram on Discovery, 11, 94, 113, 114, 143; Hare on Discovery, 238, 324. 114, 143; Hare on Discovery, 233. 2 Hare on Discovery, 25; Wigram s-yvigram on Discovery, 11, 12; on Discovery, 11, 13. Steams v. Page, 1 Story, 204, Fed. Cas. SHawley v. Wolverton, 5 Paige No. 13,339; Everet v. Watts, 10 Paige Ch. 533, 533; Mechanics' Banli v. Cli. 82; Eedesdale (6th Am. ed.), 384, Levy, 3 Paige Ch. 606; Stafford v. 385. Brown, 4 Paige Ch. 88-91. § 233.] PLEAS. 307 essary that a plea should be supported by an answer have been ■conveniently divided into, 1st, those where the plaintiff admits the existence of a legal bar, and charges some equitable circum- stance to avoid its effect; and 2d, those where the plaintiff does not admit the existence of the legal bar, but states som6 cir- ■cumstances which may be true, and to which there may be a valid ground of plea, together with other circumstances which are inconsistent with the substantial validity of the plea." ' Lord Eedesdale states the rule as follows : " And as the plaint- iff is entitled to have the answer of the defendant upon oath to any matter in dispute between th^m, in aid of proof of the case made by the bill, the defendant must answer to the facts •of fraud alleged in the bill so fully as to leave no doubt in the mind of the court that upon that answer, if not controverted by evidence on the part of the plaintiff, the fact of frand could not be established. If the answer should not be f ttll in all ma- terial points, the court may presume that the fact of fraud may be capable of proof in the point not fully answered, and may therefore not deem the answer sufficient to support the plea as conclusive, and therefore may overrule the plea absolutely, or only as an immediate bar, saving the benefit of it to the hear- ing of the cause. But though the answer may be deemed suf- ficient to support the plea upon argument, the plaintiff may except to the answer if he conceives it not to be so full to all the charges as to be free from exception; or by amending his bill may require an answer to any matter which may not iiave been so extensively stated or interrogated to as the case •would warrant, or to which he may apprehend that the answer, though full in terms, may have been in effect evasive." ^ Where the plaintiff states a variety of matters in the bill which if ad- mitted to be true would be evidence to counterprove the alle- gations of the plea, it is necessary to negative such matters by general averments in the plea, and to support the plea by an answer as to such matters; and upon the argument of a plea, every fact stated in the bill and not denied by the averments in the plea, and by an answer in support of the plea, must be taken as true.' iSDaniell, 113,114; Hare on Dis- Paige Ch. 178; Clark v. Phelps, 6 CO very, 30. Johns. Ch. 314; Souzer v. De Meyer, -'Red'esdale (6th Am. ed.), 284-286. 2 Paige Ch. 574 3Bogardus v. Trinity Church, 4 308 FEDEEAL EQUITY PEOOEDUBE. [§§ 234-236. § 234. Same — Equity rule. — A United States equity rule- provides that: "In every case in vrhich the bill specially charges fraud or combination, a plea to such part must be ac- companied with an answer fortifying the plea and explicitly denying the fraud and combination and the facts on which th& charge is founded." ^ § 235. Same — Discovery of documents. — ""Wherever the bill states or charges any facts which are inconsistent with the defendant's plea, or which would take the plaintiff's case out of the operation of it, and charges that the defendant has in his possession documents from which the matters in the bill mentioned would appear, then it will be necessary to accom- pany the plea by a discovery of the documents in the defend- ant's possession ; for as the introduction of such matter in the bill renders it imperative on the defendant to accompany his plea by an answer as to those facts, that answer, to be com- plete, must extend to the documents inquired after; because,, as they are charged to relate to the matters before mentioned,, and the facts which go to negative the defendant's plea are amongst those matters, it may happen that the documents in the possession of the defendant will afford important evidence to enable the plaintiff to avoid the effect of the plea." ^ § 236, Test of the sulflciency of answer in support of plea. The answer in support of a plea, to be sufficient, must be co- extensive with the plaintiff's right to discovery upon the issues made by the plea. Chancellor "Walworth stated the rule as fol- lows : The only way of testing the sufficiency of an answer in such a case is to consider every allegation in the bill as true which is not sufficiently denied by the answer, and then to in- quire whether, those facts being admitted, the plea is a suffi- cient bar to the claim of the plaintiff for relief. Such object tion necessarily connects itself "v^^ith the merits of the defense set up in the plea ; for, upon argument of a plea, every fact stated in the bill, and not denied by the averments in the plea and by an answer in support of the plea, must be taken as true.* 1 Equity Rule 33. 3 Bo^ardus v. Trinity Church, 4 2 3 Daniell, 139, 130. Paige Ch. 178. §§ 231; 238.] tleas. 309 And this rule is adopted and followed by the United States supreme court.^ § 237. Answer in support of plea evidence for defendant. When defendant files a plea and an answer in support of the plea, the answer, in so far as it is responsive to the allegations •of 'the bill and states facts within the knowledge of defendant, is evidence in favor of the defendant of the facts averred in the plea, and, unless disproved by two witnesses, or by one witness and corroborating circumstances, the answer must pre- vail ; for, upon the trial of an issue of fact upon a plea and an answer in support thereof, as well a^upon answer and replica- tion, no decree can be made, against a positive denial of a de- fendant, of any matter within the knowledge of defendant and directly charged in the bill, on the testimony of a single wit- ness unaccompanied by corroborating circumstances.^ § 238. Answer in subsidiuni of a plea. — There is but little said in the books in regard to this character of pleading. Lord Chief Baron Gilbert said : " You may answer anything which is not charged in the bill in suhsidiuTn of your plea, as you may deny notice in your plea, because that is not putting any- thing in issue which you would cover by your plea from being put in issue, but it is adding by way of answer that which will support your plea, and not an answer to a charge in the bill which by your plea you would decline.'" Lord Kedesdale said: "A defendant may also support his plea by an answer touching anything not charged by the bill, as notice of a title or fraud ; for by such an answer nothing is put in issue cov- ered by the plea from being put in issue, and the answer can only be used to support or disprove the plea." * Mr. Daniell, in concluding his observations upon the subject of answers in support of pleas, said: "It is to be observed that the cases above referred to, as requiring that a plea should be accom- panied by an answer, are those only in which some fact or matter is stated or charged in the bill which, if true, would have the effect of overruling the plea; there are cases, ho w- iHarpending v. Reformed Dutch Fed. Cas. No. C,84rj; affirmed by U. S. Church, 16 Pet. 487. supreme court, 6 Wheat. 453. 2 Hughes V. Blake, 1 Mason, 515, spor. Rom. 58. . 4Redesdale (6th Am. ed.), 350. 310 FEDEEAL EQUITY PEOOEDUEE. {§ 239. ever, in which, even though no equitable circumstances are alleged in the bill to defeat the bar offered by the plea, when in fact a pure plea may be pleaded, yet the defendant may support his plea by an answer touching matters not charged in the bill. Thus, in case of a plea of purchaser for valuable consideration, a defendant may deny notice in his answer as. well as in his plea, because by so doing he does not put any- thing in issue which he would cover by his plea from being put in issue. A defendant may also by this means put upon the- record any faat which tends to corroborate his plea, so as to- enable him afterwards to prove it. An answer of this sort is termed an answer in aid or in subsidium of the plea, and dif- fers from what is usually termed an answer in support of a plea in being an answer which the defendant is not obliged to- put in for the purpose of avoiding the effect of any equitable ground which may be alleged in the bill for avoiding the bar offered by the plea." ^ § 239. Jurisdictional objection in equity should be taken by special plea. — If an objection to the jurisdiction appear upon the face of the bill it should be raised by demurrer.^ But if the objection does not appear upon the face of the bill it should be raised by plea. It is a general rule in courts of equity, as well as in courts of common law, that objections to the juris- diction of the court, and which do not appear upon the face of the bill, being of a preliminary nature, should be presented at the earliest opportunity by a special plea to the jurisdiction, and cannot be availed of in a general answer to the merits, which necessarily admits the jurisdiction of the court and waives the objection ; and this rule was adopted at an early day in suits- in equity in the circuit courts of the United States, and has been fully sustained and established by the supreme court by a long line of decisions which hold that : The jurisdictional facts being properly averred by the plaintiff cannot be put in issue upon the merits, but that the objection to the jurisdiction must be brought forward at an earlier stage in' the proceedings by a plea to the jurisdiction, and that a plea or answer to the merits. 1 2 Daniell, 134, 135. How.310; Fishback v. Western Union 4 Southern Pao. Co. v. Denton, 146 TeL Co., 161 U. S. 96, 101. U. S. 203; Maxwell v. Kennedy, 8 § 240.] PLEAS. 311 is a waiver of the objection to the jurisdiction. "When the de- fendant submits the merits of the case to be heard by the court upon the pleadings and the evidence, he thereby admits that the court has jurisdiction to hear and determine the cause, and waives all exceptions to the jurisdiction. All pleas to the juris- diction are objections to entering into a hearing upon the merits, and must precede the filing of any defense to the merits. This rule is a fundamental principle of universal law ; it was the rule of the Eoman civil law and of the English common law, and was adopted by the English High Court of Chancery ; it pervades the jurisprudence of the states of the American Union ; and it is the settled doctrine of the stlpreme court of the United States that when the jurisdiction of the circuit courts of the United States appears by a proper averment of the jurisdic- tional facts upon the record, that jurisdiction can be impugned only by special plea to the jurisdiction.' And one of the United States equity rules excludes from defendant's answer all dila- tory matters, and confines it to matters in bar or to the merits of the bill.'' §240. Definition of pleas to the jurisdiction. — A plea to , the jurisdiction is one which denies that the court has juris- diction of the cause. This plea does not deny the capacity of the plaintiff to institute and prosecute the suit, nor that the plaintiff sustains the character in which he sues, nor does it dispute the truth or validity of the rights of plaintiff in the subject-matter of the suit; it simply shows by proper aver- ments, either negative or affirmative, or both, as the special circumstances of the case may require, that the court has no jurisdiction to hear and determine the cause ; the sole issue pre- sented by such plea is whether or not the court has jurisdiction 1 Livingston v. Story, 11 Pet. 351, bury, 114 U. S. 138, 146; Blackly v. 359; Wood v. Mann, 1 Sumn. 578, Davis, 1 McLean, 412, Fed. Cas. No. Fed. Cas. No. 17,953; WickliflEe v. Ow- 1,456; Evans v. Davenport, 4 McLean, ings, 17 How. 47; DeWolf v. Rabaud, 574, Fed. Cas. No. 4,558; Fremont v. 1 Pet. 498; Evans v. Gee, 11 Pet. 83; Merced Min. Co., 1 McAll. 367, Fed. Sims V. Hundly, 6 How. 1; Smith v. Cas. No. 5,095; For. Bora. (1st Am. ed. Kernochen, 7 How. 316; Jones v. by Tyler), 49, 50; Penn v. Lord Balti- League, 18 How. 81 ; De Sobry v. Nioh- more, 1 Ves. Sr. 443 ; Gould's PI., oh. 5, olson,3 Wall. 433; Sheppard v. Graves, sec. 13; Bac. Abr., Pleas & PL, A, & 14 How. 505, 513; Scott v. Sandford, 19 E. 1, 2. How. 393, 633; Farmington v. Pills- 2 Equity Rule 89. 312 FEDERAL EQUITY PEOCEDtTEE. [§ 241. of the suit.i The plea concludes by praying judgment if the court will take or hold further cognizance of the suit, or whether the court will hold plea upon and enforce the defendant to an- swer the bill for the cause aforesaid, or, simply, whether the court will compel the defendant to make further answer to the bill.- In one of the cases cited the plea to the jurisdiction,, omitting the title and heading, was as follows : " That this court ought not to take further cognizance of or sustain the said bill of complaint, because they say that they, the said defendants, at the time of filing said bill, were and still are, -all, each and every one, citizens of the state of Massachusetts, and the said plaintiffs, at the time of filing said bill, were not, and still are not, all, each and every one, citizens of another state, but that the said Nashua and Lowell Eailroad Corporation, one of said plaintiffs, at the time of filing said bill, was, and still is, a cor- poration duly established and existing under and by virtue of the laws of the state of Massachusetts, and, at the time of filing said bill, was not, and still is not, a corporation established and existing by the laws of the state of New Hampshire, and a cit- izen of said state of JSTew Hampshire. All of which matters and things defendants do aver to be trne and are ready to ver- ify. Wherefore they plead the same to said amended bill, and pray the judgment of this honorable court whether they should be compelled to make any further answer to said bill."' § ail. Classification of pleas to tlie jurisdiction. — In all suits in equity in the circuit courts of the United States, the facts upon which the jurisdiction of the court rests must ap- 1 Gould's PI., oh. 5, sec. 13; Redes- 136 U. S. 356, 385; Eailroad & Coal dale (6th Am. ed.), 260; Beames' Co. v. Blatchford, 11 Wall. 173; Im- Pleas in Equity, 57; 3 Daniell, 137, perial Eefining Co. v. Wytrian et at, 138; De Wolf v. Eaband, 1 Pet. 498; 38 Fed. E. 574; MoUan v. Torrance, 9 Evans v. Gee, 11 Pet. 83; Sims v. Wheat. 538; Farmington v. Pills- Hundly, 6 How. 1; Smith v. Ker- bury, 114 U. S. 138,146; Chicago & nochen, 7 How. 216; Jones v. League, Northwestern R. Co. v. Ohle, 117 18 How. 81; De Sobry v. Nichol- U. S. 133, 139. son, 3 Wall 438; Massachusetts & 2 Beames' Pleas in Equity, 50; 2 Southern Const. Co. v. Cane Creek Daniell, 310; Nashua & Lowell E. Twp., 155 U. S. 383; Ohio & Miss. E. Corp. v. Boston & Lowell E Corp., Co. V. Wheeler, 1 Black (66 TJ. S.), 386, 136 U. S. 356, 385. 298; Penn. B. Co. v. St. Louis E. Co., 3 Nashua & Lowell R Corp. v. Bos- 118 U. S. 390, 331; Nashua & Lowell ton & Lowell E. Corp., 136 U. S. 350, E. Corp. V. Boston & Lowell R Corp., 385. § 242.] PLEAS. 313 pear in the record;^ and in any such suit in equity, any fact upon which the jurisdiction of the court is made to rest, and the existence of which is, under the constitution and laws of the United States, essential to sustain the jurisdiction of the court, if averred by the plaintiff, may be controverted by the defendant by a plea to the jurisdiction before pleading to the merits ; and the plea, if sustained by proof, will be effectual to secure a dismissal of the suit.^ While there may not be precedents in the adjudicated cases for a full and complete classification of pleas to the jurisdiction in suits in equity in the circuit courts of the United States, yet, following the fed- eral judiciary act ^ now in force, sudh pleas may be classified as follows: (1) That the subject-matter of the suit is not within the jurisdiction of a court of equity. (2) That the suit is not one arising under the constitution or laws of the United States, or treaties made under their authority. (3) That the'suit does not involve a controversy in which the United States are thfe real plaintiffs, though nominally so. (4) That the suit doe§ not in- volve a controversy between citizens of different states. (5) That the suit does not involve a controversy in which citizens of the same state are claiming lands under grants from different states. (6) That the suit does not involve a controversy between a citi- zen of a state and a foreign state, citizen or subject. (7) That the matter in dispute does not exceed, exclusive of interest and costs, the sum or value of $2,000. (8) That the suit, where brought by an assignee, could not have been prosecuted if no assignment or transfer had been made. (9) A plea of personal privilege, claiming the right to be sued in another district. § 243. Plea that the subject-matter of the suit is not within the jurisdiction of a court of equity. — " A case which 1 Fishbaok V. Western Union Tel. Sheppard v. Graves, 14 How. 505, 513; Co., 161 U. S. 96, 101. Scott v. Sandford, 19 How. 393, 633; 2 Livingston v. Story, 11 Pet. 351, Farmington v. Pillsbury, 114 U. S. 359; Wood v. Mann, 1 Sumn. 578, 138,146; Blackly v. Davis, 1 McLean, Fed. Cas. No. 17,952; Wickliffe v. 413, Fed. Cas. No. 1,456; Evans v. Owings, 17 How. 47; De Wolf v. Ea- Davenport, 4 McLean, 574, Fed. Cas. baud, 1 Pet. 498; Evans v. Gee, 11 No. 4,558; Fremont v. Merced Min. Pet. 83; Sims v. Hundly, 6 How. 1; Co., 1 McAU. 367, Fed. Cas. No. 5,095. Smith V. Kernochen, 7 How. 316; a 35 U. S. Stat, at L., oh. 866, sec. 1, Jones V. League, 18 How. 81; De p. 434. Sobry v. Nicholson, 3 Wall. 423; 314 FEDEEAL EQUITY 'PEOCEDTJEE. [§243. is not really such as will give a court of equity jurisdictiou cannot easily be so disguised in a bill as to avoid a demurrer; but there may be instances to the contrary, and in such cases it should seem a plea of the matters necessary to show that the court has no jurisdiction of the subject, though perhaps - unavoidably in some degree a negative plea, would hold. Thus, if the jurisdiction was attempted to be founded on the loss of an instrument; where, if the defect arising from the supposed accident had not happened, the courts of ordinary jurisdiction could completely decide upon the subject, perhaps a plea show- ing the existence of the instrument, and that it was in the power of the plaintiff to obtain a production of it, ought to be allowed, though instances of this sort of plea may not occur in practice. For it seems highly unreasonable that a plaintiff, by alleging a falsehood in his bill, should be permitted to in- volve the defendant in the expense of a suit in equity, though the bill may finally be dismissed at the hearing of the cause if the defendant answers the case made by it and enters into his defense at large." * § 243. Plea of personal privilege, — The judiciary act pro- vides: "But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the ac- tion is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." " This provision of the act of congress pre- scribing the district in which a person may be sued is not one affecting the general jurisdiction of the court; but it is a pro- vision conferring a personal privilege upon the defendant, ex- empting him from suit in any district except the district of the residence of either the plaintiff or defendant; such personal privilege is, however, one which the defendant may waive, and which he does waive, by entering a general appearance and pleading to the merits of the cause, without first insisting upon iRedesdale (6th Am. ed.), 360, 361. p. 553; 35 U. S. Stat, at L., oh. 866, 2 34 U. S. Stat at L., oh, 373, sec. 1, sec. 1, p. 434. § 244.] PLEAS. 315 his privilege. If there is diversity of citizenship, and the req- uisite pecuniary value involved, a defendant may consent to be sued in any district he pleases, and such consent is evidenced by his failure to insist on his privilege before entering a gen- eral appearance and pleading to the merits, when sued in a district in which neither he nor the plaintiff resides ; and the jurisdiction of the court will not be ousted because the defend- ant has consented to waive his privilege. The circuit courts of the United States are by the federal statutes vested with general jurisdiction of civil actions, involving the requisite pe- cuniary value, between citizens of different states. Diversity of citizenship is a condition of jurisdffction, and when that does not appear upon the record, the court, of its own motion, will order the action to be dismissed. But the provision as to the particular district in which the action shall be brought does not touch the general jurisdiction of the court over such a cause between such parties, but affects only the proceedings taken to bring the defendant within such jurisdiction, and is a matter of personal privilege, which the defendant may insist upon or may waive, at his election; and the defendant's right to object that an action within the general jurisdiction of the court is brought in the wrong district is waived by a general appearance without taking the objection.* If the defendant intends to insist upon his privilege, he should enter a special and limited appearance for the purpose of objecting to the ju- risdiction of the court over him, and should then file a plea to the jurisdiction, and secure the action of the court upon it, be- fore pleading to the merits ; and, if the objection be overruled, the defendant may then plead to the merits without waiving the objection.^ § 244. Plea denying that jurisdictional amount is in dis- pute. — In the judiciary act now in force it is provided: "That 1 Ex parte SchoUenberger, 96 TJ. S. Nat. Bank v. Morgan, 132 U. S. 141; 369, 378; Texas & Pacific Ry. Co. v. Fitzgerald & M. Const. Co. v. Fitz- Saunders, 151 U. S. 105, 109; Central gerald, 137 U.S. 98; Gracie v. Palmer, Trust Co. of New York v. McGeorge, 8 Wheat. 699; Southern Pacific Co. 151 U. S. 129, 135; St. Louis & S. F. v. Denton, 146 U. S. 203, 206; Interior R. Co. V. McBride, 141 U. S. 127, 131 ; Const. & Imp. Co. v. Gibney, 160 U. S. Toland v. Sprague, 13 Pet 300, 330; 217, 220. Pollard V. Dwight, 4 Crancb, 431; a Southern Pacific Ca v. Denton, Barry v. Foyles, 1 Pet. 311; Charlotte 146 U. S. 202. 316 TEDEEAL EQUITY PEOCEDUEE. [§ 244. the circuit courts of the United States shall have original cogni- zance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the constitution and laws of the United States, or treaties made, or which shall be made, under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid." '■ It has been made a question whether or not, under this statute, the circuit courts of the United States are given jurisdiction in any civil suit where the matter in dispute does not exceed, exclusive of interest and ct)sts, the sum or value of $2,000 ; and it was held on the circuit that the circuit courts were, by this statute, deprived of jurisdiction in all civil suits where the mat- ter in dispute does not exceed, exclusive of interest and costs, the sum or value of $2,000.- But the supreme court of the United States has held that the jurisdictional amount of $2,000 is, by the statute, made requisite in only the following classes of suits, namely : (1) Suits arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority. (2) Suits in which there shall be a controversy between citizens of different states. (3) Suits in which there shall be a controversy between citizens of a state and foreign states, citizens or subjects. And the jurisdictional amount of $2,000 does not apply to the following classes of cases enumerated in the statute, namely: (1) Suits in which the United States are plaintiffs or petitioners. (2) Suits between citizens of the same state claiming lands under grants from different states.' In suits falling within either of the first three 125 U. 8. Stat at L., ch. 866, sec. 1, s United States v. Say ward, 160 U. p. 434. S. 493, 49a 2 United States v. HufEmaster, 35 Fed. R. 81, 83. § 245.] PLEAS. 317 classes, the jurisdictional amount being averred, the plaintiff may contest the jurisdiction of the court by filing a plea de- nying that the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000.^ § 245. Plea denying diversity of citizenship. — "Where the jurisdiction of the court is invoked upon the ground that the suit is one in which there is a controversy between citizens of different states, and the jurisdiction of the court appears by proper averments, upon the record, of the jurisdictional facts, and the defendant desires to object to the jurisdiction upon the ground that the requisite diverSity of citizenship does not in reality exist, he should file a special plea to the jurisdiction, traversing the averments made to show jurisdiction.^ It is the better practice to draw the plea to the jurisdiction in the form of a special traverse ; that is, by averring the facts on which the defendant relies to show that, in point of law, there is no diversity of citizenship, and basing the traverse upon those facts as a deduction therefrom. By this form of pleading op- portunity is given to present directly to the court, by argument of the plea, the sufficiency of the facts alleged to negative, in point of law, the plaintiff's averment of diverse citizenship; and it also operates as a notice to the plaintiff of the case he is required to meet.' The plea should show the citizenship at the time the suit was brought.* 1 Wetmore v. Rymer, 169 U. S. 115, City of Grand Rapids, 16 Fed. E. 138; Barry v. Edmunds, 116 U. S. 708; De Wolf v. Eabaud, 1 Pet. 498; 550, 566; Smith v. Greenhow, 109 U. Evans v. Gee, 11 Pet. 83; Sims v. S. 669, 671; 35 U. S. Stat, at L., ch. Hundly, 6 How. 1; Jones v. League, 866, sec. 1, p. 434 18 How. 81 ; De Sobry v. Nicholson, 2Wickliflfe v. Owings, 17 How. 47; 3 Wall. 433; Imperial Refining Co. v. Smith V. Kernoohen, 7 How. 198; Wyman, 38 Fed. R. 574; Sheppard v. Dred Scott v. Sandford, 19 How. 393, Graves, 14 How. 505; Rateau v. Ber- 633; Railroad & Coal Co. v. Blatch- nard, 3 Blatohf. 344, Fed. Cas. No. ford, 11 Wall. 173; Nashua & Lowell 11,579; Wythe v. Myers, 3 Savvy. 595, R Corp. V. Boston & Lowell R. Corp., Fed. Cas. No. 18,119. 130 IT. S. 356, 385; Penn. R. Co. v. St. » Dred Scott v. Sandford, 19 How. Louis E. Co., 118 U. S. 390, 331; Ohio 393, 633; Nashua & Lowell R. Corp. & Miss. R Co. V. Wheeler, 1 Black v. Boston & Lowell R. Corp., 186 U.S. (66 U. S.), 386, 398; Massachusetts & 356, 385. Southern Const. Co. v. Cane Creek 4 MoUan v. Torrance, 9 Wheat. 537. Township, 155 U. S. 383; Gilmer v. 318 FEDERAL EQUITY PEOCEDUEE. [§§ 246, 247. § 246. Plea to jurisdiction in suits by assignees.— The judiciary act now in force provides : " Nor shall any circuit or district court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made."^ In suits under this provision of the statute, it is necessary that the bill shall con- tain an averment of the facts showing that the suit could have been maintained by the assignor of the chose in action if no assignment had been made.* And if the bill should untruth- fully aver facts making out a case within the jurisdiction of the court, the defendant may challenge the jurisdiction by a plea traversing the facts averred in the bill to show that the suit could have been maintained by the assignor if no assign- ment had been made.' § 247. When jurisdictional objection may be raised under the act of 1875. — By the fifth section of the act of congress of March 3, 18Y5, it is provided: " That if, in any suit commenced in a circuit court or removed from a state court to a circuit court of the United States, it shall appear to the satisfaction of said court, at any time after such suit has been brought or removed thereto, that such suit does not really and substan- tially involve a dispute or controversy within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or coUusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or re- movable under this act, the said court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just; but the order of said circuit court dismissing or remanding said cause to the state court shall be reviewable by the supreme court on writ 1 25 U. S. Stat, at L., oh. 866, sec. 1, 9 Wheat. 537; Bank v. Moss, 6 How. p. 434. 31; Bradley v. Rhines, 8 Wall 393. 2 Corbin v. Black Hawk County, 3 Sere v. Bitot, 6 Craiich, 333. 105 U. S. 659, 667; MoUanv. Torrance, §§ 248, 249.] PLEAS. 319 of error or appeal, as the case may be." This section has been continued in force by subsequent legislation.^ § 248. Reason and policy of the statute This statutory provision was, in the opinion of the legislative branch of the government, as interpreted by the supreme court, rendered necessary by reason of the fact that the restrictions imposed by the original judiciary act upon suits by assignees and trans- ferees were, to a very great extent, removed by the first sec- tion of the act of March 3, 18Y5, which opened wide the door for frauds upon the jurisdiction of the circuit courts by collusive transfers and assignments, so as to «iake colorable parties and create cases cognizable by the courts of the United States ; and to protect the courts as well as the parties against such frauds upon their jurisdiction, the fifth section of the act was inserted, by which it is made the duty of the circuit court, upon their own motion, to dismiss or remand, as the case may require, any suit pending before them, at any time whenever it appears that such suit does not really and substantially involve a suit or controversy properly within its jurisdiction, or that the parties have been improperly or collusively joined for the purpose of creating a case under the act. This statutory provision is di- rected against frauds upon the jurisdiction of the circuit courts, and if the court is led, from any source, to suspect that its ju- risdiction has been imposed upon by the collusion of the par- ties, or in any other way, it is the duty of the court, of its own motion, to at once cause the necessary inquiry to be made, by having the proper issue joined and tried, and act as justice may require for its own protection against fraud or imposition.^ § 249. Procedure under the act of 1875. — This act of con- gress does not abrogate the former judicial procedure followed in the circuit courts of the United States in raising and dispos- ing of objections to the jurisdiction ; nor does it prescribe any new procedure to be pursued under the act. The raising of an 118 XT. S. Stat, at L., ch. 137, sec. 5, 209, 313; Farmington v. Pillsbury, p. 472; 34 U. S. Stat, at L., ch. 373, sec. 114 U. S. 138, 146; Hartog v. Memory, 6, p. 553; 35 U. S. Stat, at L., ch. 866, 116 U. S. 588, 593; Mansfield, C. & L. sec. 6, p. 434; 35 U. S. Stat, at L., ch. M. R Co. v. Swan, 111 U. S. 879, 389; 336, sec. 1, p. 693; 36 U. S. Stat, at L., Morris v. Gilmer, 139 U. S. 315, 339; ch. 517, sec. 5, p. 836. Shreveport v. Cole, 139 U. S. 36, 44; 2 Williams v. Nottawa, 104 U. S. Wetmore v. Eymer, 169 U. S. 115, 128. 320 FEDERAL EQUITY PEOCEDUEE. [§ 249. issue of fact as to the jurisdiction of the court, and its disposition, constitute a judicial proceeding, involving pleadings, evidence, trial, decision of the fact, and the judgment or decree of the court. The appropriate judicial procedure upon such an issue was definitely known, recognized and established in the federal courts long before the act of 1875, and it cannot be presumed that congress intended to abolish that procedure unless such purpose was expressed in the act. "While the language found in the decisions of the supreme court upon this subject is a little variant, yet it may be safely assumed that the result of all the cases ^ is to establish the following propositions, namely: (1) The statute does not prescribe any procedure upon the sub- ject. (2) If, at any time after the suit is brought and before it is finally disposed of, from any source, the court is led to sus- pect that its jurisdiction has been imposed upon by the collusion of the parties, or in any other way, it may at once of its own motion cause the necessary inquiry to be made as to whether or not the suit does really and substantially involve a dispute or controversy properly within the jurisdiction of the court, or whether the parties to the suit have been improperly or col- lusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under the act. (3) The parties to be affected by the dismissal must have reasonable notice of the action of the court in directing the inquiry. (4) After the inquiry is directed by the court, an issue upon the ultimate facts of jurisdiction should be made or joined and tried by some appropriate pleading and procedure. (5) The action of the court upon the issues of fact must be based upon legal and pertinent evidence ; and both parties must be given full opportunity to adduce their evidence upon the issues of fact. (6) The decision of the circuit court is reviewable by the supreme court on writ of error or appeal, as the case may be; and, therefore, all of the proceedings, including the evi- dence, should be made of record, to enable the losing party to 1 Wetmore v. Rymer, 169 U. S. 115, v. Memory, 116 U. S. 588, 593; Barry 128; Depurton v. Young, 134 IT. S. t. Edmunds, 116 11.8.550,566; Farm- 241, 260; Morris v. Gilmer, 139 U. S. ington v. Pillsbury, 114 U. S. 138, 14G; 315, 829; Shreveport v. Cble, 139 U. S. Mansfield, C. & L. M. R Co. v. Swan. 36, 44; Chicago & Northwestern R. Ill U. S. 379, 389; Williams v. Not- Co. V. Ohle, 117 U. S. 133, 129; Hartog tawa, 104 U. S. 209, 313. § 250.] PLEAS. 321 invoke the appellate jurisdiction of the supreme court to review the order of the lower court. (Y) As to the weight of evidence - required to defeat the jurisdiction upon an issue of fact, it is held that: "A suit cannot properly be dismissed by a circuit court of the United States, as not involving a controversy within the jurisdiction of the court, unless the facts when made to appear upon the record create a legal certainty of that con- clusion." §250. Same — Formal plea to the jurisdiction the sim- plest method. — The loose and informal practice which has prevailed in some circuits in presetting the jurisdictional ob- jection under the act has resulted in confusion in the circuit court,' and embarrassment to the supreme court,^ growing out of the confused state of the record upon appeal ; and one case ' was reversed because the plaintiff was not given opportunity to obtain his proof upon the issues of fact raised by the objec- tion. This confusion and embarrassment would be obviated by adhering to the established rule requiring the objection to be presented by a formal and special plea to the jurisdiction. The court, when it directs the inquiry into the jurisdiction, could also direct the defendant to file a plea stating the facts relied upon to show the absence of jurisdiction. The plaintiff could set the plea down for argument upon its legal sufficiency ; and if upon argument the plea is held sufficient, or if the plaintiff's counsel without argument is satisfied that it is suffi- cient in law if true in fact, could take issue upon it by filing the general replication. Upon the issue of fact thus joined, the parties would go to the proof and take depositions, or the court in its discretion could allow the testimony to be taken orally in open court * and reduced to writing.^ By this pro- cedure the issues of fact would be stated upon the record by the pleadings of the parties, who would have notice of the facts upon which the evidence is to be adduced; the proofs would be placed upon the record, and a full and complete rec- ord of the inquiry in regard to the jurisdiction would be pre- 1 Imperial Refining Co. v. Wyman, '^ Hartog v. Memory, 116 U. S. 588. 38 Fed. R 574 < Equity Rule 67. 2 Wetmore v. Rymer, 169 U. S. 115, 5 Blease v. Garlington, 92 U. S. 1. 128. 21 322 FEDEEAL EQUITY PEOCEDUEE. [§§ 251, 252. sented to the. supreme court upon appeal, and tliat court en- abled to review the facts and the evidence upon which it bases its decree.* § 251. Same — Discretion of the circuit courts is judicial and subject to review. — The statute confers a beneficial au- thority upon the circuit courts to be wisely executed in defeat- ing collusive an d fraudulent experiments upon their jurisdiction ; but the discretion it confers is judicial, proceeding upon ascer- tained facts according to the fixed rules of law. In the order of dismissal for want of jurisdiction, the circuit court exercises a legal and not a personal discretion, which must be exerted in view of the facts sufiiciently proved and controlled by fixed rules of jaw. The judge upon the hearing of a cause might receive impressions amounting to a moral certainty that such cause does not really and substantially involve a dispute or controversy within the jurisdiction of the court; but upon such a personal conviction, however strong, the court would not be at liberty to act, unless the facts upon which the conviction is based, when made distinctly to appear upon the record, create a legal cer- tainty of the conclusion based upon them. The court directing the inquiry must cause the facts to be made to distinctly appear upon the record, and its order must be based upon such facts; and in order to give effect to the intention of congress, the ac- tion of the court must take aiorra that will enable the supreme court to review it, so far as to determine whether the conclu- sion of the court below was warranted by the evidence before it.' § 252. Burden of proof upon the issue of jurisdiction.— When the plaintiff in his bill avers the jurisdictional facts in conformity to the constitution and laws of the United States, the jurisdiction must be taken as prima, facie existing; and if the defendant desires to object to the jurisdiction, the burden is upon him to both allege and prove the facts which are relied upon to defeat the jurisdiction ; ' and, under the act of 1875, the 1 Wetmore v, Eymer, 169 U. S. 115, s Sheppard v. Graves, 14 How. 505, 138. 517; Foster v. Cleveland, C, C. & St. 2 "Wetmore v. Eymer, 169 U. S. 115, L. Ry. Co., 56 Fed. E. 434; National 138 ; Depurton v. Young, 134 IT. S. 341, Masonic Ace. Ass'n v. Sparks, 88 Fed. 260; Barry v. Edmunds, 116 U. S. 550, E. 235. 566. •§§ 253, 254J PLEAS. , 323 defendant must show by proof to "a legal certainty " that the ■■suit does not really and substantially involve a dispute or oontro- Tersy within the jurisdiction of the court.^ § 253. Presumptions in favor of the jurisdiction of courts. The superior courts of common law and equity in England, and the courts of like character of the different states of the American Union, are courts of general jurisdiction, and no oase is presumed or intended to be out of the jurisdiction of those courts which is not shown to be so ; they are presumed to have jurisdiction unless the contrary appears.^ No such presumption, however, exists in favflr of the jurisdiction of the <30urts of the United States; on the contrary, every case is pre- sumed to be without their jurisdiction unless the contrary af- iirraatively appears from the record;' but when the jurisdic- Ttionai facts are made to affirmatively appear upon the record the jurisdiction must be taken &s prima faoie existing.* §254. Plea in abatement — Definition, — A plea in abate- ment is one which, by proper averments of fact, either nega- tive or affirmative, or both, as the circumstances of the case may require, discloses some objection to the suit or some de- fect or irregularity in it, arising either (1) out of the character .tind situation of the parties before the court and their relation to the subject of the suit, or (2) out of the insufficiency of the bill as framed to answer the purposes of complete justice, or •(3) out of matters which show that the suit is unnecessary or •oppressive; and by reason of which objection, or defect, or ir- regularity, the bill ought to be delayed or dismissed without a judicial determination of the rights claimed or involved in the suit. This plea does not deny the jurisdiction of the court nor dispute the validity of the rights which are the subject of the 1 Barry V. Edmunds, 116 IT. S. 550, 253, 263; Tennessee v. Union & P. -566; Depurton v. Young, 134 U. 8. 241 ; Bank. 125 U. S. 454; Continental Life IVetraore V. Eymer, 169 U. S. 115, 128. Ins. Co. v. Rhoads, 119 U. S. 237; 2 Redesdale (6tli Am. ed.), 262, 263; Scott v. Sandford, 19 How. 393. £eames' Pleas in Equity, 91, 92; Scott * Sheppard v. Graves, 14 How. 505, -V. Sandford, 19 How. 893. 512; Foste? v. Cleveland, C, C. & St. sFishback v. Western Union Tel. L. Ry. Co., 56 Fed. R. 434; National •Co., 161 U. S. 96; Ex parte Smith, 94 Masonic Aco. Ass'n v. Sparks, 83 Fed. U. S. 455; Metcalf v. Watertown, 128 R. 225. U. S. 586; Bors v. Preston, 111 U. S. 324 FEDEEAL EQUITY PEOCEDTJEE. [§§ 255-257; suit; it does not go to the merits of tlie controversy, but shows- that the suit is defective, or unnecessary or vexatious.' If the defendant intends to take advantage of any matter in abate- ment, he must do so by a plea in abatement, and before plead- ing to the merits, and his omission to do so is a waiver of th& objection; such an objection cannot be availed of in a general answer to the merits.^ § 255. Classification of pleas in abatement. — Pleas ia abatement are classified as follows: 1. Pleas to the person of the plaintiff. 2. Pleas to the person of the defendant. 3. Pleas- to the bill.' These are each subject to further classification. § 256. Classification of pleas to the person of the plaintiff. Pleas in abatement to the person of the plaintiff are: 1. That the plaintiff on account of some legal disability cannot sue alone, as (1) infancy, (2) lunacy or idiocy, (3) coverture. 2. Bank- ruptcy. 3. That the plaintiff is not the person he pretends ta be, or does not sustain the character he assumes, as (1) that he is not administrator or executor, (2) that he is not heir, (3) that he is not a partner,* (4) that the plaintiff suing as a corporatioit is not a corporation.' § 257. Classification of pleas to the person of the defend- ant. — Pleas in abatement to the person of the defendant are: 1. That the defendant does not sustain the character in which he is sued, as that defendant is not (1) executor or administra- tor, (2) nor heir, (3) nor z>feme sole, (4) nor &feme covert} 1 Beames' Pleas in Equity, 102-163; 3 Kedesdale (6th Am. ed.), 358, 360; 2 Daniell, 143-151; Story's Eq. PL, Beames' Pleas in Equity, 118-162; 3'. sees. 733-747; Redesdale (6th Am. Daniell, 141-151; Story's Eq. PI., sees, ed.), 368-371, 375, 376, 287-393, 334- 733, 785. 327. 4 Beames' Pleas in Equity, 118-133^ ^Society v. Pawlet, 4 Pet. 480; Co- Redesdale (6th Am. ed.), 358, 268-371;. nard v. Atlantic Ins. Co., 1 Pet 450; Story's Eq. PI., sec. 733; 3 Daniell, Metcalf V. Williams, 104 U. S. 93; 141, 143. , Barry V. Foyles, 1 Pet 311; Oilman 6 Society v. Pawlet 4 Pet 480; Co- V. Rives, 10 Pet 298; Northwestern nard v. Atlantic Ins. Co., 1 Pet 450. Union Packet Co. v. Clough, 30 Wall. « Beames' Pleas in Equity, 132-153; 528; Chirac v. Reinioker, 11 Wheat Redesdale (6th Am. ed.), 358, 275; 2- 280; Childress v. Emory, 8 Wheat. Daniell, 142, 143; Story's Eq. PL, sec. 643; Kane v. Paul, 14 Pet 33; Mc- 733. Kenna v. Fisk, 1 How. 241. §§ 258-261.] PLEAS. 325 § 258. Classification of pleas to the bill. — Pleas in abate- ment to the bill are: 1. Another suit pending. 2. "Want of parties. 3. Unnecessary multiplication of suits. 4. That the bill confounds distinct matters, or is multifarious.^ § 259. Plea that plaintiff does not possess the character In which he sues. — If the plaintiff sue as executor or admin- istrator, and it appears from the face of the bill that his letters "were granted in a state other than that in which he sues, or appears that for any reason he is not entitled to sue in that character, the defendant may demur; ^ but if the plaintiff, by the averments in his bill, shows tl^^t he has the title to sue as executor or administrator, and the defendant desires to con- trovert the truth of such averments, he should do so by plea in abatement.' A plea which alleges that the plaintiff is not the person he pretends to be, or does not really sustain the character he assumes, is a good plea;^ and where the plaintiff ■sued as administrator, the defendant pleaded that he was not administrator, and the court allowed the plea, holding that it was a good plea in abatement.^ § 260. Plea that defendant does not sustain the character In which he is sued. — A defendant may plead in abatement that he is not the person or does not sustain the character he is alleged to bear and in which he is sued, as that plaintiff is not executor, or administrator, or heir, or feme sole, or feme ■covert, having been sued in such capacity.* § 261. Plea of bankruptcy. — It is provided by the seven- tieth section of the bankruptcy act that the trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested iRedesdale (6th Am. ed.), 260, 324- * Green v. Hayman, 2 Ch. Cas. 10; 337; Beames' Pleas in Equity, 152- Knight v. Bee, 3 Ch. R. 40; Coke v. 162; Story's Eq. Pi., sees. 735-747. Bishop, Finch's R. 380. 2 Black V. Allen Co., 42 Fed. R. 623, » Winn v. Fletcher, 1 Vern. 473. «34,635; Redesdale(6th Am.ed.),180, « Griffith v. Bateman, Finch's R. 181; 1 Daniell, 416, 417. 334; Redesdale (6th Am. ed.), 275; sChildressv. Emory, 8 Wheat. 643; Beames' Pleas in Equity, 133, 133; Kane v. Paul, 14 Pet. 33; Carter v. Cooper's Eq. PL 350. Treadwell, 3 Story, 42, 50, Fed. Cas. No. 2,480. 326 FEDERAL EQUITY PEOCEDUEB. [§ 262. by operation of law with the title of the bankrupt, as of the- date he was adjudicated a bankrupt, to all his property except, that which is exempt from his debts ;^ and if an adjudicated bankrupt should file a bill in equity touching his property so- vested by operation of law in the trustee, and the objection does not appear in the bill, his bankruptcy may be pleaded in abatement of the suit.^ In such a plea it is not sufiicient to- say that the defendant has been duly adjudicated a bankrupt,, but the plea should state all the facts successively and dis- tinctly upon which the bankruptcy is made to rest. A plea, under the existing bankruptcy act should allege the following- facts, viz. : (1) The acts of bankruptcy committed by the bank- rupt; (2) the filing of the petition in bankruptcy, and whether- filed by the bankrupt or his creditors; (3) the nature of the debt or debts upon which the proceedings in bankruptcy were- based, showing whether they are debts from which the bank- rupt may be release(f ; (4) the > proceedings had and taken in the court of bankruptcy upon the petition ; (5) the adjudica- tion of bankruptcy ; (6) the appointment and qualification of the trustee ; and (7) that the property concerning which the- bill is filed is such as passes to the trustee under the bankruptcy act.' § 262. Plea of another suit pending. — Another suit pend- ing in the same or another court of equity between the same parties for the same cause of action and seeking the same relief may be pleaded in abatement to a bill in equity.* " This plea corresponds with the exceptio litis pendentis, and is analogous to the plea of the common law that there is another action de- pending," by which latter system of pleading the general rule is " that whenever it appears that the plaintiff has sued out two- writs against the same defendant for the same thing, the first 1 80 U. S. Stat, at L., ch. 541, sec. 3 Carleton v, Leighton, 3 Meriv. 70, p. 541 667; Beames' Pleas in Equity, 123; 2Spraggs T. Binks, 5 Ves. 583; Ben, 1 Daniell, 77, 78; 30 U. S. Stat at L.^ field V. Solomon, 9 Ves. 77; Bowser ch. 541, p. 544. V. Hughes, 1 Anst. 101; Fawkes v. ^Redesdale (6th Am. ed.), 287; Pratt, 1 P. Wms. 592; Joseph v. Beames' Pleas in Equity, 132; 3 Dan-> Tuckey, 2 Cox, 44; Kirkman v. An- iell, 144, 145; Insurance Co. v. Brune, drews, 4 Beav. 554; Beames' Pleas in 96 U. S. 588, 693; Memphis City v. Equity, 121 ; Redesdale (6th Am. ed.), Dean, 8 Wall. 61 273. § 262.] PLEAS. 327 not being determined, the second writ shall abate, for the law abhors multiplicity of actions." The plea at law that there is another action depending is a plea in abatement to the action of the writ; and as it does not attempt to deny the existence of the right made the subject of the suit, nor contend that it is vested in the defendant, it is also in equity a plea in abatement, and not in bar of the bill.^ "When the pendency of one suit is set up to defeat another the cases must be the same. There must be the same parties, or, at least, such as represent the same interest ; there must be the same rights asserted and the same relief prayed for. This relief must be founded on the same facts, and the title or essential basis 'of the relief sought must be the same. The identity in these particulars should be such that, if the pending case had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter between the same parties.^ It is not true that a court, having obtained jurisdiction of a subject-matter of suit and of parties before it, thereby excludes all other courts from the right to adjudicate upon other matters having a very close connection with those before the first court, and in some instances requir- ing a decision of the same question exactly. In examining into the exclusive character of the jurisdiction in such cases, the court must have regard to the nature of the remedies, the character of the relief sought, the facts on which the claim for relief is founded, and the identity of the parties in the different suits. A party having notes secured by a mortgage on real estate may, unless restrained by statute, sue in a court of equity to foreclose his mortgage, and in a court of law to recover judg- ment on his notes, and in another court of law in an action of ejectment for possession of the land ; in all the suits the only question at issue may be the existence of the debt secured by the mortgage; but as the relief sought is different, and the mode of proceeding different, the jurisdiction of neither court is affected by the proceedings in the others.' At law, and the rule is the same in equity, the pendency of a former action be- tween the same parties for the same cause is pleadable in abate- ment because the latter is regarded as vexatious; but the former 1 Beames' Pleas in Equity, 137-140. 3 Buck v. Colbath, 3 Wall. 334. 2 Watson V. Jones, 18 Wall. 679, 738. 328 FEDEEAL EQUITY PEOCEDUEB. ,[§ 262. action must be in a domestic court ; that is, in a court of the same state in which the second action has been brought.^ A plea of a suit pending in a court of chancery of Ireland was over- ruled in the English court of chancery.^ The pendency of a prior suit in another jurisdiction cannot be pleaded in abate- ment to a subsequent suit in a circuit court of the United States.* A state court of general jurisdiction is not a foreign court in its relation to a circuit court of the United States sitting in the same state ; and a suit pending in a state court may be pleaded in abatement of a suit subsequently brought in a United States circuit court sitting in the same state, between the same parties, upon the same cause of action, for the same relief, founded upon the same facts ; for the reason that, by the provisions of the judiciary act, the jurisdiction of the circuit courts of the United States in all suits of a civil nature at common law or in equity is concurrent with the courts of the several states, and there is no principle better settled than that, where two or more tribu- nals have concurrent jurisdiction over the same subject-matter and the parties, a suit commenced in any one of them may be pleaded in abatement to an action between the same parties for the same cause, seeking the same relief, subsequently insti- tuted in either of the other tribunals.* When a state court and a court of the United States may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it to the exclusion of the other until its duty is fully performed and the jurisdiction involved is exhausted.^ The rule that the pend- ency of an action in a foreign jurisdiction cannot be pleaded in abatement does not apply when plaintiff has secured his debt by the attachment of property suificient to satisfy the claim in a foreign jurisdiction.^ \ 1 Mutual Life Ins. Co. v. Harris, 96 5 Harkrader v. Wadley, 172 U. S, U. S. 588, 593; Hatch v. SpoflEord, 23 148, 170; Peck v. James, 7 How. 612 Conn. 485. Freeman v. Howe, 24 How. 450 2 Dillon V. Alvares, 4 Ves. 357. Moran v. Sturges, 154 U. S. 256; Cen- 3 Stanton v. Embry, 93 U. S. 584, tral Nat. Bank v. Stevens, 169 U. S 588. 432; Farmers' Loan & Trust Co. v. < Earl V. Raymond, 4 McLean, 283, Lake Street Elev. Co., L. Rep. Ann, Fed. Cas. No. 4,343; Nelson v. Foster, Oct. Term, 1899, No. 11,565. 5 Biss. 44, Fed. Cas. No. 10,105; Brad- s Lawrence v. Remington, 6 Biss. ford V. Fulsom, 14 Fed. R. 97; Shelby 44, Fed. Caa No. 814; Embre v. V. Bacon, 10 How. 56. Hamed, 5 Johns. 101. §263.] PLEAS. 329 § 263. Reason for the rule that suit pending is pleadable in abatement of a second suit. — The reason for the rule that the pendency of a former suit may be pleaded in abatement of a second action is that, if the plaintiff has already an action pending in which he can obtain full relief, there is no justifica- tion for harassing the defendant by a second action for the same subject-matter. If it should appear, however, that in the second action the plaintiff can avail himself of some legal or equitable advantage not open to him in the first action, then a, legal reason is shown for the bringing of the second action, and. the pendency of the one would not ordinarily abate the other. This is the reason why, as a rule, the pendency of an action at law cannot be successfully pleaded in abatement of a suit in equity.^ The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or , object, is, at the common law, good cause of abatement. It is so because there cannot be any reasou or necessity for bringing the second ; and therefore it must be oppressive and vexatious. But while the law is thus careful to screen the defendant from oppression and vexation, it is equally impartial and open to the plaintiff, and even indulgent to him, a creditor, to seek re- dress, by pursuing several remedies at the same time, if this is found to be reasonable and necessary. The law will not countenance vexation and oppression, neither will it prevent a creditor from using, in a fair manner, the means in his power to collect his debts. This rule is not a rule of unbending rigor, nor of universal application, nor a principle of absolute law; it is rather a rule of justice and equity, generally applicable, and always where the two suits are virtually alike and in the same jurisdiction. In applying the rule it should be kept steadily in mind that a plea in abatement, being a dilatory plea, is not like a plea of payment or satisfaction, or of some other matter in bar of the merits of the claim, which would find more favor; but its object is to c^use postponement and delay, and the language of the plea is that the second suit is unnecessary and vexatious, and should be abated. A second suit is not, of course, to be abated and dismissed as vexatious, but all the at- tending circumstances are to be first carefully considered, and the true inquirj'^ will be whether or not the aim of the plaintiff 1 Bradford v. Fulsorti, 14 Fed. E. 97, 100. 330 FEDEEAL EQUITY PEOCEDUEB. .[§ 264. is fair and just, or oppressive and vexatious. If the plaintiff, by a second suit, can place his claim in a more favorable con- dition for obtaining redress, he should be permitted to do it.^ § 264. Requisites of a plea of lis pendens. — The plea should aver with certainty when the suit was instituted, the purposes of the bill and the relief sought by it, and that it is «till pend- ing,^ and that the present and the former suit are for the. same matter;' and that in the former suit the same issue was joined, the subject-matter was the same, and the proceedings were taken for the same purpose as in the second suit ; * and it must be averred that the defendant in the first suit has been served with process or has appeared or answered, for otherwise there would be no suit pending.* In the circuit courts of the United States it is directed by rule that no process of subpoena shall issue from the clerk's office in any suit in equity until the bill . is filed in the office,' and upon the return of the subpoena served and executed upon any defendant the clerk shall enter the suit upon his docket as pending 'in the court, and shall state the time of the entry ; ' and the English rule is that the writ of subpoena must be issued and served upon all the defendants before a cause can be properly said to be commenced.* The plea should also show that the first suit is pending in a court of competent jurisdiction, and that the result of the proceed- ings therein will be conclusive so as to bind every other court.' If the second suit embraces more as to parties and subject-mat- ter the plea of lis pendens will be overruled." A plea which fails to show when the first suit was commenced and whether issue was joined was held insufficient in form and substance." "Where a bill was filed by a single creditor in behalf of himself against the executors of a deceased person and the devisee of his real estate, upon which bill a decree was made, and another creditor came in and took the benefit of the decree and proved 1 Hatch V. Spofford, 22 Conn. 494 t Equity Rule 16. 2 Foster v. Vassall, 3 Atk. 588, 590. 8 1 Daniell, 554. 8 Devil V. Browlow, 2 Dick. 611. 9 Behrens v. Sieveking, 2 MyL & Cr. < Behrens v. Sieveking, 2 MyL & Cr. 602. 1603. - "Massachusetts Mut. Life Ins. Ca s Moore v. Welsh Copper Co., 1 Eq. v. Chicago & A. R. Co., 13 Fed. R. 857. Cas. Abr. 39. " Crescent City Co. v. Butchers' « Equity Rule 9. Union, 13 Fed. R. 235. § 265.] PLEAS. 331 his debt, and then filed a bill on behalf of himself and other creditors against the executor and the devisee, and also made the heir at law a party defendant, who was not a party to the other suit, the lord chancellor held that the plaintiff in the second suit, by taking the benefit of the decree and prov- ing his debt in the former suit, became quasi a party to that suit, and, as he did not show by his bill that it was absolutely necessary to bring the heir at law before the court, a plea of the pendency of the former suit should be allowed.^ § 265. Procedure when plaintiff sues both at law and in equity. — The ancient rule was that "a suitor might bring an action at law against the representatives of a deceased person, and at the same time file a bill " in chancery " for the discov- ery of assets;"^ but by Lord Clarendon's orders it was di- rected, in substance, that if, after suit commenced at the com- mon law, a bill should be exhibited in chancery for the same matter, the pendency of a former suit shall be a good plea ; ' but Lord Clarendon's order became obsolete, and the more ancient order of Lord Bacon was followed, under which it was " the practice for the defendant not to plead the pendency of such suit at common law, but, after he had put in his answer, to apply to the court, that the plaintiff may make his election whether he will proceed at law or in equity, and the court will order accordingly.* " If the plaintiff shall elect," says Lord Tledesdale, " to proceed in equity, the court will restrain his proceeding at law by injunction, and if he shall elect to pro- ceed at law the bill will be dismissed. But if he should fail at law, the dismission of his bill will be no bar to his bringing a new bill." ' In the Forum Komannm it is said : " The de- fendant cannot plead a suit depending at law in bar of the plaintiff's demand in equity, because the plaintiff has a right to the defendant's oath in equity, to exonerate him of the onus prdbcmdi at law; but, after the answer is come in, the de- fendant may put the plaintiff to his election to proceed at law or in equity, that he may not be doubly vexed."* It would seem that the plaintiff cannot be put to his election except in 1 Neve V. Weston, 3 Atk. 557. * Beames' Pleas in Equity, 151. 2 Beames' Pleas in Equity, 160. ' Eedesdale (6th Am. ed.), 391, 292. 3 Beames' Pleas in Equity, 147. * For. Eom. (Tyler's ed.) 55. 332 FEDERAL EQUITY PEOCEDTJEE. [§§ 266, 267. cases where the courts of common law and equity have con- current jurisdiction.^ § 266. Plea of want of parties. — Where the bill is defective for want of parties, and the defect does not appear upon the face of the bill, it may be shown by plea. In such a plea it is not always necessary to point out the persons who should be made parties by name ; it will be sufficient if the plea points out who the individuals are, by some description which en- ables the plaintiff to identify them and make them parties; but the names, if known to the defendant, should be stated in the plea.^ If the bill shows a sufficient reason for not making such persons parties, the court may, in its discretion, proceed in the cause without making them parties, in which case the decree shall be without prejudice to the absent parties ; ' but the plea may controvert the facts averred in the bill to ex- cuse the failure to bring in the absent parties.* But if it is impossible for the court to make a decree without the pres- ence of the absent parties, nothing can excuse their omission.* Upon the argument of such a plea, the court, instead of allow- ing it, may allow the bill to stand over and give the plaintiff leave to amend his bill by making new parties,* or such leave may be given after allowing the plea.'' Under the present practice, a plea of want of parties is not strictly necessary; the defendant may by his answer suggest a defect of parties, and may set the cause down for hearing upon that objection within fourteen days after answer filed.* Where the bill is dismissed for want of parties, it should be without prejudice.' § 267. Pleas in bar — Definition. — Whatever shows that there is no right which can be made the subject of suit, or what- ever is a complete perpetual bar to the right sued for, maj' con- stitute the subject of a plea in bar ; or whatever destroys the iHunt V. Danford, Fed. Cas. No. SRedesdale (6th Am.ed.), 336; Mil- 6,888; Graham v. Meyer, i Blatohf. ligan v. Milledge, 3 Cranch, 320. 139, Fed. Cas. No. 5,678. ^ Redesdale (6th Am. ed.), 326, 337; 2 Attorney-General v. Jackson, 11 Equity Rule 35. Ves. Jr. 365, 370. 8 Equity Rule 53; United States v. 8 Equity Rule 47. Gillespie, 6 Fed. E. 803. 4Redesdale(6th Am. ed.), 336. s House v. Mullen, 33 WalL 43; 6 Shields v. Barrow, 17 How. 130; Kendig v. Dean, 97 U. S. 423. Coiron v. Millaudon, 19 How. 113. ^§ 268-271.J PLEAS. 333 plaintiff's suit, and disables him forever from recovering, may- be pleaded in bar. But this must be understood as applicable to matter constituting one point, or ground of defense, proper for a plea. In equity pleading there is no such plea known as the general issue, or a general denial. The plea in bar known at law under the title of the general issue is altogether un- known in equity, where pleas in bar are in the nature of spe- cial pleas in bar at law, and will in most instances be found strongly analogous to them.' § 268. General classification of pleas in bar. — Pleas in bar may be classed under tl^e folio ■wing general heads: 1. Pleas of statutes. 2. Pleas of matter of record. 3. Pleas of matter in pais? 4. Negative pleas, which deny some main fact averred in the bill, the truth of which is necessary to sustain the suit.' 5. Pleas of estoppel. This classification is subject to further and subordinate classification. § 269. Classification of pleas of statutes. — Pleas of statutes may be classified as follows : 1. Plea of the statute of limita- tions. 2. Plea of the statute of frauds. 3. Plea of any other pub- lic statute which destroys the demand of the plaintiff. 4. Plea of any private or particular sta;tute.* § 270. Classification of pleas of matter of record. — Pleas of matter of record may be classified as follows: 1. Plea of a decree in equity, by which the rights of the parties have been determined. 2. Plea of a decree in equity, dismissing another bill for the same cause after a hearing upon the merits. 3. Plea of a verdict and judgment at law. 4. Plea of a judgment or sentence of a court of probate or some other domestic court. 5. Plea of a judgment of a foreign court.' § 271. Classification of pleas of matter in pais. — Pleas of matter in jpais may be classified as follows: 1. Plea of a re- 1 Beames' Pleas in Equity, 163, 164, < Redesdale (6th Am. ed.), 309, 313, This definition of a plea in bar is 318; Beames' Pleas in Equity, 164- taken almost literally from Beames. 189; Cooper's Eq. PI. 351-259. 2 Beames' Pleas in Equity, 164; s Redesdale (6th Am. ed.), 378-387; Cooper's Eq. PL 351. Beames' Pleas in Equity, 303-335; 3 3 Daniell, 115; Adams' Equity, Cooper's Eq. PL 266-373; 3 Daniell, 337; Rhino v. Emery, 79 Fed. R. 433. 179. 334 TEDEEAL EQUITY PEOCEBUEE. [§§ 272, 273. lease. 2. Plea of a stated account. 3. Plea of a settled account. 4. Plea of an award. 5. Plea of a purchaser for a valuable consideration without notice of plaintiff's title. 6. Plea of title in defendant, founded upon (1) a will, (2) a cbnveyance or other instrument, (3) long, peaceable and adverse possession.' § 272. Classification of negative pleas.— Negative pleas in bar maybe classified as follows: 1. Plea denying the existence of a partnership.'' 2. Plea denying the existence of a debt.' 3. Plea denying the existence or execution of a mortgage or other instrument.* 4. Plea denying plaintiff's title.* § 273. Plea of the statute of limitations. — " The statute of limitations is a good plea in bar to the relief sought by a bill in equity, as it is a good special plea in bar to an action at law." * Courts of equity sometimes act in obedience to the statute, and sometimes they apply it by way of analogy; where the cause of action is legal and the statute has barred the rem- edy at law, the defense is as complete in equity as it is at law ; but where the case falls within the proper, peculiar and exclu- sive jurisdiction of a court of equity, the statute is not neces- sarily applied.^ Courts of equity in cases of concurrent juris- diction consider themselves bound by the statutes of limitation •which govern actions at law.* The right to plead the statute 1 Beames' Pleas in Equity, 335, 336; India Co., 3 P. Wms. 309; Wright v. Cooper's Eq. PI. 376-389; Eedesdale Carew, Nels. 157; Saunders v. Herd, (6th Am. ed.), 301-308. 1 Rep. Ch. 97; Lacon v. Lacon, 3 Atk. 2Drew V. Drew, 3 Ves. & B. 159; 395; Calpham v. Boyer, 1 Ch. R. 110; Sanders v. King, 6 Madd. 61; Harris Lacon v. Briggs, 3 Atk. 105; Dupleix V. Harris, 3 Hare, 450; Mansell v. v. De Eoven, S Vern. 540; Davis v. Feeney, 3 John. & Hem. 313. Dee, Finch's R. 343; Lotchwell v. » Thring V. Edgar, 3 Sim. & St. 380. Foster, Finch's R 366; Eumney v. 4 Chamberlain V. Agar, 3 Ves. & B. Mead, Finch's R. 303; Finchman 289; Armitagev.Wadsworth,! Madd. v. Hobbs, Finch's R. 370; Hurdit v. 189; Hilchens v. Lander, Cooper's R, Calladon, 1 Ch. R. 114; Bayley v. 34 Adams, 6 Ves. 586; For. Rom. 61; 5 Gun V. Prior, 3 Dick. 657; New- and other authorities. man v. Wallis, 3 Bro. C. C. 143; Ken- 7 Riddle v. Whitehall, 135 U. S. 631, nessley v. Simpson, Forrest, 85; Em- 640; Kane v. Bloodgood, 7 Johns. Ch. erson v. Harland, 3 Sim. 490. 106. « Beames' Pleas in Equity, 165, 166, s Baker v. Cummings, 169 U. S. 189; citing Low v. BuiTon, 3 P. Wms. 363; Metropolitan Nat. Bank v. St. Louis Prince v. Heylin, 1 Atk. 493; Aggas Dispatch Co., 149 U. S. 448. V. Piokerell, 3 Atk, 335; Wych v. E. § 274.J PLEAS.^ 335 of limitations has been always held to be a personal privilege, of which the debtor could avail himself or not, as he might choose.^ In a plea of the statute of limitations interposed to a bill in equity, it is not necessary for the plea to state in ex- press terms that the defendant relies upon the statute creating the bar; but if the defendant in his plea states facts necessary to bring the case within the statute, and then insists on such facts as a bar, that will be sufficient ; and the court is bound to take judicial notice of the statute, when the facts stated and relied on as a bar are sufficient to bring the case within its operation.'* « § 274. Necessary averments of a plea of the statute of lim- itations. — A plea of the statute of limitations should aver with certainty and precision all the facts necessary to bring the case Avithin the operation of the particular statute relied upon to create the bar to the suit ; ' and it must contain averments nec- essary to avoid any equity set up in the bill against the bar created by the statute.* Where fraud, or concealment, or a new promise, or any other matter whatever, is charged in the bill by which the bar created by the statute may be avoided, the plaintiff must deny such charges by averment in the plea and by an answer in support of the plea; and the answer in support of the plea (and which is indispensable to its support) must be full and clear and contain a particular and precise denial of the charges, or it will not be effectual to support the plea, and it will be overruled upon argument.^ The plea must in itself, if true, contain a complete bar. It should not be a naked plea of the statute of limitations, but should contain averments neg- ativing the special matter set up in the bill which, if true, would avoid the operation of the statute ; and the answer in support of the plea should also contain a full discovery of the matters 1 Sanger v. Nightingale, 123 U. S; Bogardus v. Trinity Church, 4 Paige 176, 188. Ch. 178. ^Harpending v. Reformed Dutch ^Beames' Pleas in Equity, 188; Church, 16 Pet. 455, 486; Bogardus v. Goodrich v. Pendleton, 3 Johns. Ch. Trinity Church, 4 Paige Ch. 178; 384. Van Hook v. Whitlock, 7 Paige Ch. » Goodrich v. Pendleton, 3 Johns. 373, 381. Ch. 384, 391; Cooper's Eq. PI. 251, 3 Beanies' Pleas in Equity, 188 ; Van 252 ; Beames' Pleas in Equity, 29, 168, Hook V. Whitlock, 7 Paige Ch. 373; 169; Redesdale (6th Am.ed.), 812-318. 336 FEDEEAL EQUITY PEOOEDUEE. [§§ 275, 276. SO set up in avoidance of the bar. It is not sufficient for the answer alone to negative such matter, for it is mere matter of discovery ; but the plea should in itself, if true, contain a com- plete bar.' It is essential to a plea of this kind that it should show that the cause of action did not accrue within the time limited by the statute relied upon to create the bar.^ § 375, Plea of laches.-^ There is a defense peculiar to courts of equity, founded on lapse of time and staleness of the claim, where no statute of limitations governs the case. In such cases courts of equity act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, by refusing to interfere where there has been gross laches in pros- ecuting the claim, or long acquiescence in the assertion of ad- verse rights.' "A court of equity, which is never active in relief against conscience or public convenience, has always re- fused its aid to stale demands, where the party has slept upon his rights, or acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this juris- diction, there was always a limitation to suits in this court." * Laches is a defense which may be made by demurrer, or by plea, or by answer, or presented bj'^ argument, either upon a preliminary or final hearing.* § 376. Plea of the statute of frauds. — It is provided by the original judiciary act : " That the laws of the several states,- except w^here the constitution, treaties and statutes of the United States shall otherwise provide, shall be regarded as rules 1 Stearns V. Page, 1 Story, 304 Fed. 209; Badger v. Badger, 3 Wall. 87; Cas. No. 13,339. Godden v. Kimmell, 99 U. S. 301. 2 Cooper's Eq. PI. 353. < Lord Camden in Smith v. Clay, 3 sPrevost v. Gratz, 6 Wheat. 481; Brown's Ch. 640. ■Hughes V. Edwards, 9 Wheat. 489; ^Woodmanse & Hewitt Co. v. Wilson V. Matthews, 3 Pet. 44; Miller Williams, 37 U. S. App. 109; Max- V. Mclntire, 6 Pet. 61; Piatt v. Vat well v. Kennedy, 8 How. 310, 233; tier, 9 Pet. 413, 417; McKnight v. McLaughlin v. People's By. Co., 31 Taylor, 1 How. 161; Brown v. Wathen, Fed. B. 574; Hinohman v. Kelley, 54 1 How. 189; Wagner v. Baird, 7 How. Fed. E. 63. 234; United States v. Moore, 13 How. § 277.] PLEAS. 337 of decision la trials at common law in the courts of the United States where they apply; "i and it has been uniformly held by the United States supreme court that, under the above pro- Tision, the statutes of frauds of the several states are binding upon the federal courts as rules of decision,^ even as applied to commercial instruments;' and it has been also held that the statutes of frauds of the several states, requiring contracts for the sale or exchange of land to be in writing, are as binding upon the courts of the United States in suits in equity as in ac- tions at law.* It therefore follows that, in any suit in equity in a circuit court of the United States, the statute of frauds of the state in which the court sit#may, if applicable to the case, be pleaded by the defendant in bar of the bill ; but the plea must contain an averment of the facts necessary to bring the case within the particular provision of the act relied upon to defeat the suit ; and if the bill contains any averments or charges Avhich may avoid the bar created by the statute, and take the case out of its operation, such averments and charges must be denied by the plea, and also by an answer in support of the plea.' It is essential to a plea of the statute of frauds that it should aver that the agreement was not reduced to writing and signed by the party to be charged.' If the bill charges col- lateral circumstances as evidence of an agreement in writing, a plea of the statute will not be sufficient, unless it contain averments denying such collateral circumstances.' " It seems that a plea of this statute will be equally available where a written agreement has been- essentially varied by parol." ^ § 277. Plea of any other statute. — Any other public statute which destroys the demand of the plaintiff, or creates a bar to his suit, may be pleaded in bar of the bill ; but it must contain averments necessary to bring the case of the defendant within 1 1 U. S. Stat, at L., ch. 20, sees. 34, 323; Kirkman v. Hamilton, 6 Pet. 20; 92; U. S. R. S., sec. 731. Brashear v. West, 7 Pet. 608; Paine aOsterman v. Baldwin, 6 Wall 116, v. Central Vt. E. Co., 118 U. S. 152, 124; Violett v. Patton, 5 Cranch, 143; 161. Grafton v. Gumming, 99 U. S. 100; *Purcell v. Coleman, 4 Wall 513, Warner v. Texas & Pacific R Co., 164 517. TJ. S. 418, 435. * Cooper's Eq. PI. 255, 356. ' 3 Moses V. Nat. Bank of Lawrence « Beames' Pleas in Equity, 177. County, 149 U. S. 298, 304; Mandeville ■? Evans v. Harris, 3 Ves. & B. 361. V. Riddle, 1 Cranch, 290; s. c, 5 Cranch, 8 Beames' Pleas in Equity, 177. 22 338 FEDERAL EQUITY PEOCEDDEE. [§ 278. the terms and provisions of the statute relied upon, and to avoid any equity set up in the bill against the bar created by the statute.^ § 278. Plea of a decree in equity, or of a verdict and judg- ment at law. — If the rights of the parties or their privies in the subject-matter of a bill have been fully determined by a pre- vious adjudication, by a final decree in equity, such decree in equity may be pleaded by the defendant in bar of the new bill; ^ and a defendant may plead in bar of the bill a verdict and judgment at law, where such judgment has determined the rights of the parties or their privies in the matter of the bill.' As a plea of former adjudication, there is no difference between a verdict and judgment in a court of law, and a decree of a court of equity ; they both stand on the same footing, and may be offered in evidence under the same limitations.* A decree in equity, to be a bar to another suit, must be in its nature final, and must be upon the merits.* A decree or order- dismissing a former bill between the same parties or their privies for the same matter is a final determination, and may be pleaded in bar of a new bill, unless the dismissal is made because of some defect in the pleadings, or for want of jurisdiction, or because the plaintiff has an adequate remedy at law, or unless the dis- iRedesdale (6th Am. ed.), 318; 3 Hughes v. Blake, 6 Wheat. 456; Cooper's Eq. PL 258; Beames' Pleas s. c, 1 Mason, 575, Fed. Cas. No. 6,845; in Equity, 188. Sidney v. Perry, 1 Bro. C. C. 305; 2 Lyon V. Perin & GofiE Mfg. Co., Bluok v. Elliott, Finch's R. 13; Pitt v. 135 U. S. 698, 670; Green v. Bogue, Hill, Finch's E. 70; Hellam v. Graves, 158 U. S. 478, 504; Durant v. Essex Finch's R. 205; Cornell v. Warren, Co., 7 Wall 107, 113; Walden v. Bod- Finch's R. 3-39; Temple v. Baltinglass, ley, 14 Pet. 156; Hughes v. United Finch's R. 275; Rawlings v. Rawl- States, 4 Wall. 337; Rutland v. Brett, ings, 3 Oh. R. 30; Sewell v. Freeston, Finch's R. 124; Child v. Gibson, 3 1 Ch. Cas. 65; Beames' PI. in Bq. 203; Atk. 603; Bell v. Read, 3 Atk. 590; Thompson v. Roberts, 34 How. 333; Gregory v. Molesworth, 3 Atk. 636; Morgan v. Beloit, 7 Wall. 6ia Wortley v. Birkhead, 4 Atk. 809; < Hopkins v. Lee, 6 Wheat. 110; MoUock T. Galton, 1 Dick. 65; Sen- Smith v. Kernochen, 7 How. 198; house V. Earl, 3 Ves. 450; Kinsey v. Thompson v. Roberts, 34 How. 333. Kinsey, 3 Ves. 577; Taylor v. Sharp, sRedesdale (6th Amu ed.), 378, 379; 3 P. Wms. 371; Redesdale (6th Am. Durant v. Essex Co., 7 Wall. 107, ed.), 378; Cooper's Eq. PI. 369; Beames' 113; Walden v. Bodley, 14 Pet. 156; PI. in Eq. 311 ; 3 Daniell, 175, 176, 177, Hughes v. United States, 4 Wall. 337. 178; Thompson v. Roberts, 34 How. 333. § 279.] PLEAS. 339 missal is in terms without prejudice, or other terms indicating a right or privilege reserved by the court to the plaintiff to take further proceeding on the subject.^ A dismissal for want of parties does not render the subject of the controversy res udjudioata, but leaves the merits unconsidered and undisposed of, and cannot be pleaded in bar of a new bill.'' A verdict and judgment at law cannot be pleaded in bar of a bill in ■equity unless the judgment is absolutely final upon the rights of the parties or their privies in the matter of the bill.' A judg- ment rendered upon demurrer is equally conclusive of the facts -confessed by the demurrer, as a judgment rendered upon a verdict finding the same facts would be, since they are estab- lished in the former case as in the latter, by way of record ; ^nd facts thus established can never afterwards be contested between the same parties or those in privity with them. It makes no difference in principle whether the facts upon which the court proceeds to judgment were proved by deeds and wit- nesses, or whether they were admitted by the parties; and an -admission by way of demurrer to a pleading, in which the facts are alleged, is just as available to the opposite party as if the -admission had been made orally before the jury. And there- fore a final judgment upon demurrer may be pleaded in bar of a bill between the same parties or their privies brought to es- tablish the same right.* § 279. The extent of a plea of res judicata. — The cases in Avhich the defense of a former adjudication may be interposed, in so far as the extent of the plea is concerned, or the quantity of the bill to which the defense may be applied, as shown by the decisions of the supreme court of the United States, may be classed and arranged under two heads, viz. : (1) Where the second suit between the same parties or their privies is based upon the same cause of action as in the first suit; in which class of cases, the plea is a full and complete defense, extend- iDurant v. Essex Co., 7 "Wall. 107, len, 22 Wall. 42: Kendig v. Dean, 97 113; Walden v. Bodley, 14 Pet. 256; U. S. 423. Hughes V. United States, 4 Wall. 3 Beames' PI. in Eq. 202-205. ■337; Redesdale (6th Am. ed.), 279. ^ Bissell v. Spring Valley Township, -'St Romes v. Levee Cotton Press 134 U. S. 325, 236; Gould's PL, ch. 14> •Co., 127 U. S. 614, 631; House v. Mul- part I, sec. 43. 340 FEDERAL EQUITY PEOCEDTJEE. [§ 279. ing to the whole bill.* (2) Where the second suit between the' same parties or their privies is based upon a different cause of action, but where some right, question or fact put in issue in the second suit was distinctly put in issue and directly deter- mined by the court as a ground of recovery in the first suit; in which class of cases, the defense is only partial, extending only to that part of the bill which sets up the right, question or fact put in issue and determined in the first suit.'' In order to render a matter res judicata in cases of the first class, there must be a concurrence of four conditions, viz. : (1) Identity in the thing sued for; (2) identity in the cause of action; (3) iden- tity of the persons and parties (or their privies) to the action; and (4) identity of the quality in the persons for or against whom the claim is made.' In regard to the second class of cases, the general principle announced is: " That a right, ques- tion or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, can- not be disputed in a subsequent suit between the same parties or their privies ; and even if the second suit is for a different cause of action, the right, question or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified."* And, in this class of cases, "the estoppel resulting from the thing adjudicated does not depend upon whether there is the same demand in both cases, but ex- ists even although there are different demands, when the ques- tion upon which the recovery of the second demand depends has under identical circumstances and conditions been previ- ously concluded by a judgment between the parties or their privies." ' The supreme court of the United States has an- nounced the following rule as to the application and extent of the defense of res judicata in both classes of cases above pointed out, viz. : " "When the second suit is upon the same cause of ac- tion, and between the same parties or their privies, the judg- 1 Lyon V. Perm & Goflf Mfg. Co., 8 Lyon v. Perin & Goflf Mfg. Co., 125 U. S. 698, 702; W. A. & G. Packet 125 U. S. 698, 703; W. A. & G. Packet Co. T. Sickles, 24 How. 333, 340; Ma- Co. v. Sickles, 24 How. 333, 340. rine Ins. Co. v. Young, 1 Cranch, 332. * Southern P. E. Co. v. United 2 Southern P. R. Co. v. United States, 168 U. S. 1. States, 168 U. S. 1; New Orleans v. 5 New Orleans v. Citizens' Bank, Citizens' Bank, 167 U. S. 371. 167 U. S. 371. § 280.] PLEAS. 341 ment in the former is conclusive in the latter as to every ques- tion which was or might have been presented and determined in the first action; but where the second suit is upon a differ- ent cause of action, though between the same parties or their privies, the judgment in the former action operates as an es- toppel only as to the point or question actually litigated and ■determined, and not as to other matters which might have been litigated and determined." ^ § 280. Requisites of a plea of res judicata.— A plea of *= ■decree in a former suit in equity concluding the matter of tW second suit must set forth as much of the former bill and an- swer as is necessary to show that the same right, question or fact was then in issue and determined by the court ; and if the second bill is filed to impeach the decree in the former suit for fraud or unfairness in obtaining it, or for any other cause whatever, all the averments, charges and equitable circum- stances contained in the second bill and put forth for the pur- pose of avoiding the bar of the decree should be denied by the averments of the plea and by answer in support of it.^ A plea •of a verdict and judgment at law should show by proper aver- ments that the demand of the plaintiff in the bill was put in issue, tried and determined in the action at law;' and when the bill seeks to set aside such verdict and judgment at law as having been obtained by fraud or unfairness, or for any other ■cause, the defendant should plead the verdict and judgment in bar of the bill, and every averment, charge or equitable cir- cumstance inserted in the bill for the purpose of avoiding the bar should be denied by the plea and also by an answer in support of it.* Upon the trial of an issue of former adjudica- tion, parol evidence is admissible to show what was put in issue and determined in the former suit.' 1 Nesbit V. Independent District of 2 Redesdale (6th Am. ed.), 279-386; Riverside, 144 U. S. 610,621; Crom- Coopers Eq. PI. 371, 373; Beames' well V. Sac County, 94 U. S. 351; Wil- Pleas in Equity, 233. inington & Weldon E. Co. y. Als- » Williams v. Lee, 3 Atk. 333. Jbrook, 146 U. S. 379, 303; Keokuk & < Hughes v. Blake, 6 Wheat. 453; W. R Co. V. State of Wisconsin, 153 s. C, 1 Mason, 515, Fed. Cas. No. 6,845; TJ. S. 301, 317; Roberts v. Northern Williams v. Lee, 3 Atk. 233. Pacific R. Co., 158 U. S. 130; Last s Campbell v. Rankin, 96 U. S. 361; ■Chance Mining Co. v. Tyler Mining Miles v. Caldwell, 3 Wall. 35; Crom- ■Co., 157 U. S. 683, 696. well v. Sao County, 94 U. S. 351; W. 342 FEDERAL EQUITY PEOCEDUEE. [§ 281, § 281. A plea of a release. — "If the plaintiff, or a person •under whom he claims, has released the subject of his demand,, the defendant may plead the release in bar of the bill. In a plea of a release, the defendant must set out the consideration upon which the release was made;" a full and distinct aver- ment of the consideration is absolutely essential to the valid- ity of the plea. A plea of release puts in issue two ultimate facts, viz. : (1) the execution of the release, and (2) the consid- eration upon which the release was made; and the truth of Ath of these facts is necessary to make the plea a good bar;, but generally in cases where a release is pleaded, the suffi- ciency of the consideration to support the release, and the- good faith of the transaction by which it was obtained, is the point chiefly litigated. And where fraud, coercion, misrepre- sentation or other circumstances are charged in the bill for th& purpose of avoiding th.e bar of the release, the defendant plead- ing the release must, by proper negative averments in the plea,, deny the allegations of fraud, and must support his plea by a full answer and discovery as to every equitable circumstanc& charged in the bill to avoid the bar of the release.^ Inas- much as a plea of release puts in issue the consideration upon which the release was made, and the sufficiency and fairness, of the consideration constitute one of the main issues of fact to be tried and determined by the court at the hearing upon the proofs, it follows that a plea of release cannot protect the- defendant against a full discovery as to all matters put in issu& by the bill, as to the sufficiency and fairness Of the consider- ation." In the case last cited, the plaintiff, in her bill, stated various dealings between herself and defendant, covering a. period of about eight years, imputing to defendant fraud and unfair dealing, and various usurious charges, overcharges and mistakes in accounts delivered ; and prayed a discovery of the- several transactions and a general accounting. To all the re- lief and discovery sought by the bill in regard to said trans- A. & G. Packet Co. v. Sickles, 5 Pleas in Equity, 225-228; Roche v. Wall. 580; Davis v. Brown, 94 U. S. Morgell, 2 Sch. & Lef. Ir. Ch. R. 42B; Russell v. Place, 94 U. S. 606; 731; Allen v. Randolph, 6 Johns. Ch. W. A & G. Packet Co. v. Sickles, 34 693; Bolton v. Gardner, 3 Paige Ch. How. 333. 273. iRedesdale (6th Am. ed.), 304-308; 2 Roche v. Morgell, 3 Sch. & Let Cooper's Eq. PL 276, 377; Beaines' Ir. Ch. R. 721. § 281.J PLEAS. 343 actions, the defendant pleaded a release made by the plaint- iff, with an averment that the release was prepared with the consent of, and freely and voluntarily executed by, plaintiff, without any fraud or undue practices upon the part of defend- ant. This plea was held insufficient by Lord Eedesdale, be- cause it was not supported by an answer giving full discovery as to all the imputations of unfairness in regard to the ac- counts, the settlement of such accounts being the consideration upon which the release was obtained. An appeal was taken from Lord Eedesdale's order to the House of Lords, where it was affirmed. Upon the hearing in the House of Lords, Lord Eedesdale delivered an opinion in vindication of his order ap- pealed from, in which he said : " The release was founded on a general settlement of accounts, which was the consideration for the instrument apparent on the face Of it; and was part of the very transaction, and an essential part, being the con- sideration on which the deed was founded. If the accounts were fairly adjusted, the release was fair, and was a bar to the relief sought by the bill to the time of the settled account; that is, the release would preclude the court from decreeing that the parties should come to a new account upon the same subject. But if the accounts were not fair, if they were liable to all the imputations cast on them by the bill, then the re- lease was not a fair transaction, and ought not to preclude the court from decreeing a new account. The release there- fore in no form of pleading could be a bar to the discovery sought by the bill, for upon that discovery would depend the validity of the instrument itself. If the release had been pleaded to the relief only, and the plea had been confined to the transactions prior to the 27th of May, 1T91, it might per- haps have been a good plea to a certain extent with proper averments, and provided those averments were supported by a full answer to all the charges in the bill affecting the ac- counts. . . . Upon argument of a plea, every fact stated in the bill, and not denied by an answer in support of the plea, must be taken for true. . . . Every release must be founded on some consideration, otherwise fraud must be presumed. That consideration must be either a valuable consideration then given, or the adjustment of depending accounts. In the latter case the fairness of the accounts is of the essence of the consid- 84:4: FEDBEAL EQUITT PEOOEDUEE. [§ 282. eratioQ. If ttey are not fair the consideration is not fair, and the instrument founded on such a consideration is in itself void, and therefore operates nothing. "Where a deed upon consideration is pleaded to a bill in bar of a right which would exist if the deed did not ezist, the consideration must be set out, its fairness must be averred by the plea, and if the bill charges matter tending to impeach the consideration, the de- fendant must by answer support the averments in the plea; a deed therefore cannot be pleaded to a discovery of the transac- tions on which the consideration of the deed, and consequently the deed itself, is founded. Here the plea does not even put in issue the consideration on which the deed was founded." ^ § 282. Plea of a stated account. — A stated account may be pleaded in bar to a bill for an account.^ The plea should aver that the account was in writing, setting forth the balance,' and that the stated account is just and true to the best of defend- ant's knowledge and belief;* and where the bill impeaches the stated account, and charges the plaintiff has no counterpart of it, and prays that the same be set forth by the defendant, the defendant, if he pleads the stated account in bar, must annex a copy thereof to his answer in support of his plea, so that if there be any errors in the account the plaintiff may have an opportunity to point them out.' Where persons have mutual dealings, signing the account is not necessary to riiake it a stated one ; but acquiescence in it, such as retaining it a rea- sonable length of time without objection, will render it a stated account.* In order to render an account a stated one, it is not - necessary that the vouchers should be delivered up at the time it is made ; but such delivery is an affirmation that the account between the parties is a stated one,' land where it has been done 1 Roche V. Morgell, supra. ' Burke v. Brown, 2 Atk. 897, 399. 2 Dawson v. Dawson, 1 Atk. 1 , * Richardson v. Greese, 3 Atk. 64, Sumner v. Thorpe, 3 Atk. 1; Willis 70. V. Jernegan, 3 Atk. 350; Burke v. 'Hankey v. Simpson, 3 Atk. 303; Brown, 3 Atk. 397; Hankey v. Simp- Weed v. Smull, 7 Paige Ch. 573. son, 3 Atk. 803; Bedell v. Bedell, « Willis v. Jernegan, 3 Atk. 250, 852; Finch's R. 5; Henpert v. Benn, Oil Co. v. Van Etten, 107 U. S. 325; Finch's R. 844; Sewell v. Bridge, 1 Wiggins v. Burkham, 10 Wall 129; Ves. Sen. 297; For. Rom. 56; Chap- Leather Mfrs. Nat. Bank v. Morgan, pedelaine v. Dechenaux, 4 Cranch, 117 U. S. 96. 306; Craig v. McKinney, 72 111. 805; ' Willis v. Jernegan, 2 Atk. 250, 252. Weed V. Smull, 7 Paige Ch. 573. §§ 283-285.] PLEAS. 345 it should be averred in the plea.^' A stated account may be pleaded in bar to a bill brought for an accounting, and which seeks to avoid the bar of the account by charging that it was procured by unfairness, fraud and error; but the fraud and error must, in such case, be denied by the averments of the plea, and also by answer in support of it.^ § 283. Plea of an account settled. — The difference between an account stated and an account settled is this : An account stated is where the accounts have been examined by the parties and the true balance between them agreed upon and admitted as the true balance due upon the^accounts ; when the balance thus agreed upon and admitted is paid, the account is deemed and taken as a settled account.' § 284. Plea of an award. — An award may be pleaded in bar to a bill for an account,* or to a bill to set aside the award and open the account ; ^ and the plea is not only good to the merits of the case, but also to the discovery.^ But if the bill impeach the award on the ground of error, or a charge of partiality, fraud or corruption against the arbitrators, all such charges must be denied by the averments of the plea and by an answer in support of the plea.'' § 285. Plea of bona flde purchaser. — The defendant may plead in bar of a bill for relief in equity that he is a purchaser for a valuable consideration, without notice of the plaintiff's claim or title. A purchaser for value and without notice is a favorite with a court of equity; and it was said by one of Eng- land's great chancellors, that " equity will not disarm a pur- chaser but will assist him, and precedents of this nature are iFor. Eom. 56. Eq. PI. 391-301; Beames' « Central Trust Co. v. Grant Loco- Pleas in Equity, 357-286. motive Works, 135 U. S. 207, 237; 2 Redesdale (6th Am. ed.), 235-237; Ensminger v. Powers, 108 U. S. 293; Beames' Pleas in Equity, 301-306; Thomas v. Brookenbrough, 10 Wheat. Cooper's Eq. PI. 303. 146 ; Whiting v. Ban k of U. S., 13 Pet. 3 Redesdale (6th Am. ed.), 337; 6; Kennedy v. Bank of Georgia, 8 Beames' Pleas in Equity, 309, 310; How. 586; Rioker v. Powell, 100 U. S. Cooper's Eq. PI. 303, 304 104; Clark v. Killian, 103 U. S. 766; * Redesdale (6th Am. ed.), 337, 338; Reed v. Stanley, 89 Fed. R. 430; Reed Beames' Pleas in Equity, 310, 311; v. Stanley, 97 Fed. R. 531. Cooper's Eq. PL 304. § 290.] PLEAS. • 351 decree upon new matter, the defendant may interpose any plea which would have avoided the effect of that matter if charged in the original bill," or he may plead that the defendant was guilty of laches in not discovering the new matter before the rendition of the decree which the bill seets to reverse.^ To a bill seeking to impeach a decree on the ground of fraud the de- fendant should plead the decree with averments in the plea and by an answer in support of the plea denying the fraud.' To a bill filed to carry a decree into execution the defendant may plead that the plaintiff has no right to the benefit of the •decree, if such be the fact and it does not appear from the face of the bill.* • § 290. The form and frame of a plea. — A plea in equity usually consists of five parts, viz. : 1. The first part of the plea is the title. It should be entitled in the cause, and state the name of the defendant or defendants pleading it, thus : " The plea of William Morgan Thomas, defendant, to the bill of com- plaint of Edward Blewitt, Joseph !N"ewton, Mary Newton, Herbert Phillips, complainants." ' When the defendant pleads to a part of the bill and answers to the residue, it should be so expressed in the title, thus: "The plea of Eichard Lee and Mary Lee, his wife, to part, and their answer to the residue of the bill of complaint of Henry Williams, complainant." * If the plea is supported by an answer, the title may be thus : " The plea and answer of James Lee, the defendant, to the bill of complaint of James Walwyn, complainant." ' 2. The sec- ond part of the plea is the protestation against the confession of the truth of any matter contained in the bill, thus : " This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the complainant's said biU of complaint to be true, in such manner and form as the 1 Eedesdale (6th Am. ed.) 338, 339; lowed in Blewitt v. Thomas, 3 Ves. Cooper's Eq. PL 304, 305. Jr. 669, given in Beames' Pleas in 2 Beard v. Burts, 95 U. S. 434. Equity, 337, 338. SRedesdale (6th Am. ed.), 340; « Title of plea allowed in Williams Cooper's Eq. PL 305; Beames' Pleas v. Lee, 3 Atk. 223; Beames' Pleas in in Equity, 314, 315. Equity, 341, 342. ♦ Eedesdale (6th Am. ed.), 340; ^Walwyn r. Lee, 9 Ves. 24, al- Cooper's Eq. PL 305, 306; Beames' lowed; Beames' Pleas in Equity, 344, Pleas in Equity, 315. 349. *This is the title to the plea al- 352 > FEDEEAL EQUITY PEOCEDUKE. [§ 290. same are therein and thereby alleged." ^ 3. " The extent of the plea, that is, whether it is intended to cover the whole bill, or a part of it only, and what part in particular, is stated in the next place ; and this must be clearly and distinctly shown." ^ In one of the pleas above referred to, which was to all the re- lief and to a part of the discovery, the extent of the plea was stated thus : "As to all the relief prayed in and by the com- plainant's bill of complaint, and as to all the discovery thereby prayed, save and except so much thereof as prays this defend- ant may discover whether he is now in possession of mes- suages, lands, tenements and hereditaments in the complain- ant's bill mentioned, and of the rents and profits thereof, and how long the defendant, and, those under whom he claims title thereto, have been in possession thereof," this defendant doth plead in bar,' etc. In one of the pleas above referred to, which was to a part of the bill only, and accompanied by an answer to the residue of the bill, the extent of the plea was stated thus: "As to so much of said bill as seeks to controvert the value of the several goods and things in the bill mentioned to be be- queathed to the said defendant, Mary Lee, by Urania Goodwin, deceased, in the bill named, in respect of which this defendant, Eichard Lee, hath recovered a verdict against the said com- plainant, and which seeks to controvert. the right and title of these defendants, or either of them, to the same goods; and also as to so much of the said bill as seeks to impeach the said verdict which this Eichard Lee hath obtained against the com- plainant, in respect to the same goods and effects, these de- fendants plead in bar."* 4. The fourth part of the plea con- sists of the averments which set up the bar and negative matters set up in the bill to avoid the bar. In these averments there must be the same strictness as at law ; they should be direct and positive, and should clearly and distinctly state all the facts necessary to render the plea a complete equitable bar to the case made by the bill, or to that part of it covered by the plea.' 5. The fifth part of the plea is the conclusion, and prays 1 Walwyn v. Lee, 9 Ves. 24, al- 8 Blewitt v. Thomas, 2 Ves. Jr. 669; lowed; Beames' Pleas in Equity, 344, Beames' Pleas in Equity, 337, 338. 349. * Williams v. Lee, 3 Atk. 323; 2 Eedesdale (6th Am. ed.), 851. Beames' Pleas in Equity, 341, 343. sRedesdale (6th Am. ecL), 340-349. § 291.J PLEAS. 353 thus: "All which matters and things these defendants are ready to verify, maintain and prove as this honorable court shall direct, and do plead the same in bar of so much and such parts of the said bill as are hereinbefore mentioned to be pleaded unto, and humbly pray the judgment of this honor- able court thereupon, and whether they are liable or shall be compelled to make any further or other answer to so much of the bill as they have hereinbefore pleaded to." ' A plea to the jurisdiction should pray the judgment of the court whether it will take further cognizance of the cause. A plea in abate- ment should pray that the suit be abated or dismissed. But when a temporary disability of tile plaintiff to sue is pleaded in abatement, the plea should conclude with the prayer that the bill remain without day till the disability be removed, and not for a dismissal of the bill.^ If a plea is accompanied by an answer, the answer must follow the conclusion of the plea; if the answer is merely in support of the plea it should be so stated, and that it does not waive the plea, thus: "And these defendants, insisting upon their said plea, and in no wise waiv- ing or departing from the same, or the benefits thereof, but saving to themselves the benefit of said plea ; " or thus : "And the defendant, not waiving his said plea, but relying thereon; and, for better supporting the same, for answer saith," ' etc. If the answer is to the residue of the bill not covered by the plea, it should be so expressed, not waiving the plea, thus: "And these defendants, not waiving their said plea, but wholly relying thereon, for answer to so much of the said bill as they have not pleaded to, say that," '' etc. § 291. Plea must be supported by certificate of counsel and affidavit of defendant.— A United States equity rule pro- vides that: Bo plea shall be allowed to be filed to any bill un- less upon a certificate of counsel that in his opinion it is well founded in point of law, and supported by aflBdavit of the de- fendant that it is not interposed for delay, and that it is true in point of fact;^ and if a plea is not so certified by counsel, 1 Beames' Pleas in Equity, 343. * Cunningham v. Wegg, 3 Bro. C. C. 2 Beck V. Beck, 7 George (Miss.), 73. 341 ; Beames' Pleas in Equity, 335. 3 Williams v. Lee, 3 Atk. 333; Wal- » Equity Eule 31. -wyn V. Lee, 9 Ves. 34; Beames' Pleas in Equity, 343, 349. 33 354 FEDERAL EQUITY PEOCEDUEE. [§§ 292, 293. and supported by the aflBidavit of defendant, it is fatally de- fective, and the plaintiff may disregard it, and enter a decree ;pro confesso} The fact that a plea is sworn to by the defend- ant does not make it evidence in his favor. The oath of the ■ defendant, that the plea is true in point of fact, is added only for the same purpose as the certificate of counsel, that in his opinion it is well founded in point of law, in order to comply with the thirty-first equity rule, the object of which is to pre- vent a defendant from delaying and evading the discovery sought without showing that the plea is worthy of the con- sideration of the court. An answer under oath is evidence in favor of the defendant, because made in obedience to the de- mand of the bill for a discovery, and therefore only so far as it is responsive to the bill. But a plea which avoids the dis- covery prayed for is no evidence in the defendant's favor, even when it is under oath and negatives a material averment in the bill.'' § 293. Filing the plea. — After a plea has been prepared it must then be filed in the clerk's oflBce ' and entered upon the order book, and such entry is sufficient notice to the plaintiff that the plea has been filed ; * and the plea should be filed on the rule-day next succeeding that of the defendant entering his appearance;* but defendant may file it at any time before the bill is taken for confessed, or afterwards with leave of the court.* § 293. Proceedings to be taken by plaintiff upon a plea filed. — The equity rules provide that when a plea is filed the plaintiff shall, on the rule-day when the same is filed or on the next succeeding rule-day, either (1) set the plea down for argument upon its legal sufficiency, or (2) he shall take issue upon the plea by filing thereto the general replication ; and if he neither sets the plea down for argument nor takes issue iSheflaeldFumaoeCav.Witherow, 318; Heartt v. Corning, 3 Paige Cli. 149 U. S. 574, 580; American Steel & 566. Wire Co. v. Wire Drawers' & Die 3 2 Daniell, 217; Equity Rulesl, 18. Makers' Unions, 90 Fed. R 598; Pres- < Equity Rules 4, 5; Newby v. Ore- ton V. Finley, 72 Fed. R 850; Na- gon Cent. E. Ca, 1 Sawy. 68, Fed. tional Bank v. Insurance Co., 104 Cas. No. 10,145. U.S. 54. SEquityRtilelS. 2 Farley v. Kittson, 120 U. S. 308, 6 Equity Rule 32. § 294.] PLEAS. a55 upon it within the time prescribed, " he shall be deemed to admit the truth and- suffloienoy thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for that purpose." ^ A plea is set down for argument by the plaintiif by entering an order as of course upon the order book to that effect.^ The defendant may in like manner set the plea down for argument upon its legal suf- £ciency.' There is no demurrer to a plea; the only method by which the plaintiff may test the legal suflaciency of a plea in equity, and obtain the judgment of the court thereon, is to set down the plea for argument.* • § 294. The argnmeut of a plea — Upon the argument of a plea no issue of fact is presented ; the plaintiff, by setting the plea down for argument, admits for the purposes of the argu- ment the truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to bar his recovery; the defendant, by interposing a plea, thereby admits that the aver- ments and charges of the bill not denied by the plea are true ; and therefore, upon the argument of a plea, the facts stated in the plea, and all the facts alleged in the bill and not contro- verted by the plea, are deemed and taken as true ; and upon the facts thus admitted and taken as true, the court decides upon the legal validity and sufficiency of the defense set up by the plea. And so, upon the argument of the plea, issues of law only are submitted to the court. Upon the argument of the plea five issues of law may arise, namely: 1. Whether the sub- ject-matter of the defense is proper for a plea, or should it be presented by (1) a demurrer, or (2) by an answer; as an illns- tration, if the plea contains more defenses than one, as matter suitable for a plea and demurrer, or a double bar, which is proper for an answer only, such objections to the plea present issues of law arising upon the face of the bill and the plea, and should be presented and determined upon the argument. 2. "Whether the plea is a complete bar to the relief sought by 1 Equity Rules 33,38 ;Ehode Island ^Equity Rules 33, 34; Hatch v. V. Massachusetts, 14 Pet. 210. Bancroft-Thompson Co., 67 Fed. R. 2 Equity Rules 4, 5, 33, 38. 803; 3 Daniell, 316-333; Beck v. Beck, SBeames' Pleas in Equity, 344; 3 7 George (Miss.), 73. Daniell, 319; Redesdale (6th Am. ed.), 353. 356 FEDEEAL EQUITY PEOOEDUEE. [§ 295. the bill, or tliat part of it -which the plea is intended to cover. 3. Whether the plea should be supported by an answer giving any of the discovery sought by the bill. 4. Where an answer is on file in support of the plea, whether such answer is suffi- cient. 5. When an answer is on file in support of the plea, ■whether the discovery given by such answer shows the plea to be invalid.^ When a plea is set down for argument upon its legal suflBciency, the defendant's counsel has the right to open and close the argument." Upon the argument of a plea, the order of the court may be either (1) that the plea be allowed simply, or (2) the benefit of the plea may be saved to the hear- ing, or (3) it may be ordered to stand for an answer, or (4) it may be overruled.' § 295. Allowing pleas. — If upon argument a plea is allowed, it is thereby determined to be a full bar to the bill, or to so much of it as it covers ; but the plaintiff may then take issue upon it, by filing thereto the general replication, and proceed to examine witnesses and disprove the facts upon which it is endeavored to be supported.* An equity rule provides that the plaintiff may set down the plea to be argued, or he may take issue on it.* This rule does not mean that the plaintiff shall make such a conclusive election, that, if he sets the plea down for argument and it is upon argument allowed, he is thereby precluded from afterwards taking issue upon the plea and disproving it ; but after the plea is allowed the plaintiff has the right to take issue upon it, and go to the proofs, and if the court denies him this right it is reversible error, and, upon 1 3 Daniell, 98, 103, 118; Rhode Isl- 2 Rhode Island v. Massachusetts, 14 and V. Massachusetts, 14 Pet. 310; Bo- Pet. 310. gardus V. Trinity Church, 4 Paige Ch. SRedesdale (6th Am. ed.), 353; 2 178; Gaines v. Mausseaux, 1 Woods, Daniell, 333. 118; Newby V.Oregon Cent. Ry. Co., Equity Rule 33. 453, 473; Farley v. Kittson, 120 U. a § 301.J PLEAS. ' 361 plaintiff may avoid the bar of the plea by other facts, if estab- lished by the proof under the pleadings.' § 301. The eifect of falsifying a plea in bar When a de- fendant in equity files a plea in bar of the whole bill, he thereby admits the truth of every allegation and charge in the bill ■which is not denied by the plea; and this admission is, for all purposes of the suit, just as conclusive and absolute as if it were expressly made by the defendant upon the record, or by a de- cree jpro confesso duly made and entered upon the default of the defendant. And if the plaintiff takes issue upon the plea, the only matter in issue between the parties is the truth of the plea ; and if, upon the hearing, the court finds from the evi- dence that the plea is untrue, then all of the allegations and charges of the plaintiff's bill are conclusively established as true, and the plaintiff is entitled to an immediate decree against the defendant, according to the averments and prayer of the bin. And if any discovery sought by the bill is necessary to ascertain the extent of the relief to which the plaintiff is en- titled, or to take an account, the plaintiff may have an order that the defendant be examined upon interrogatories, before a master, to obtain such discovery ; and the defendant will not be permitted to answer the bill, nor file any defense thereto whatever.^ In this respect Lord Eldon declared courts of equity follow the analogy of a plea at common law] the rule at law being that : When the plaintiff takes issue upon the defendant's plea, whether it be a plea by way of traverse or confession and avoidance, and the jury find a verdict against the defendant upon that issue, the plaintiff's declaration is thereby established, and he is entitled to judgment against the defendant upon the verdict.' Chancellor Walworth states the rule substantially as follows: Where a plea in bar to the whole bill is put in, if the plaintiff takes issue thereon, there is nothing in question but the truth of the plea; if the plea is untrue the plaintiff will be iPearce v. Rice, 142 U. S. 28, 43. Sr. 243; Hawtry v. Trollop, Nelson, ^Kennedy v. Creswell, 101 IT. S. 119; Wigram on Discovery, 36; Lang- 641, 646; Dows v. McMichael, 2 Paige dell's Eq. PL, sees. 98, 147; Eedesdale Ch. 345; Bell v. Woodward, 48 N. H. (6tli Am. ed.), 353; Beames' Pleas ia 444; Barley v. Adams, 6 Ves. 594; Equity, 325. Wood V. Strickland, 2 Ves. & Beames, ^ Bayley v. Adams, 6 Ves. 594 158; Brownsword V. Edwards, 2 Ves. 362 FEDEEAL EQUITY PEOCEDUEE. [§§ 302, 303. entitled to a decree against the defendant, in the same manner as if the several matters charged in the bill had been confessed or admitted by the defendant. If a discovery i^ necessary to enable the plaintiff to obtain the relief sought for by the bill, the defendant cannnot evade giving it by putting in a false plea; in sach a case, after the plea is found false, the plaintiff may have an order that the defendant be examined on inter- rogatories, before a master, as to the several matters in relation to which a discovery was sought by the bill.* § 302. The effect of proving dilatory pleas. — If a plea to the jurisdiction be established by the proof, the decree is that the court has no jurisdiction to entertain the cause, and that the bill be dismissed without prejudice.* If a plea in abatement be established by the proof, the decree is that the bill be dis- missed without prejudice, or, if the disability or impediment to the prosecution of the suit is temporary, that the bill remain ■without day till the disability be removed.' § 303. Plea allowed by prematurely excepting to answer. " "Where a defendant pleads or demurs to any part of the dis- covery sought by the bill, and answers likewise " (to a part of the discovery sought by the bill), " if the plaintiff takes excep- tion to the answer before the plea or demurrer has been ar- gued, he admits the plea or demurrer to be good ; for unless he admits it to be good, it is impossible to determine whether the answer is sufficient or not. But if the plea or demurrer is only to the relief prayed by the bill, and not to any part of the discovery, the plaintiff may take exceptions to the answer before the plea or demurrer is argued."* In a case' before Lord Eldon it was urged by the attorney-general that the proposition of Lord Eedesdale, that a plea or demurrer to any part of the discovery was allowed by the plaintiff's excepting to the answer before such plea or demurrer was argued, Was not supported by the citation of any adjudicated case; but ' Dows V. MoMichael, 2 Paige Ch. ' Beames' Pleas in Equity, 50, 51; 646. Beck v. Beok, 7 George (Miss.), 73. 218 U. S. Stat, at L., ch. 137, sees. *Redesdale (6th Am. ed.), 378; Siff- 5, 473; Nashua & Lowell R. Corp. v. kin v. Manning, 9 Paige Ch. 233. Boston & Lowell R. Corp., 136 U. S. SBoyd v. Mills, 13 Ves. 85. 356, 386. § 303.] PLEAS. 363 Lord Eldon held that the proposition was supported by reason, and that in such a case the plaintifif admitted the validity of the plea or demurrer by excepting to the accompanying an- swer before the plea or demurrer had been argued and its validity determined by the court. In that case, however, the chancellor permitted the plaintiff, upon payment of costs, to withdraw his exceptions, and set the demurrer down for argu- ment, with liberty to again except after the demurrer should be passed upon by the court. The reasoning which supports the rules is this: The plaintiff by his bill requires the defend- ant to give discovery. The defendant, by his plea or demur- rer to a part of the discover3t sought by the bill, denies that the plaintiff is entitled to that part of it, and declines to give it; but by his accompanying answer to another and a distinct part of the discovery sought by the bill admits that the plaint- iff is entitled to some of the discovery sought by the bill, and gives in his answer a part of the discovery sought. But the plaintiff, before the validity of the plea or demurrer denying a part of the discovery is determined by the court, files his ex- ceptions to the answer, alleging that the defendant has not given all the discovery sought by the bill, and prays the court to compel him to give the discovery withheld, and which he, by his plea or demurrer, denies the plaintiff is entitled to have. But the court cannot determine the exact extent of the dis- covery which the plaintiff is entitled to have and require from the defendant, until the validity of the plea or demurrer to part of the discovery has been argued and decided ; for, upon argument, the plea or demurrer may be allowed, and the dis- covery covered by it denied by the court, or it may be over- ruled, and the plaintiff decreed to be entitled to the discovery covered by it. Until the validity of the plea or demurrer is determined, the court cannot know the extent of the discovery the plaintiff is entitled to require. And as the plaintiff, by his exceptions to the answer, prays the court to determine the full extent of his right to discovery, he is conclusively presumed to have elected to admit the validity of the plea or demurrer, for he has asked the court to do that which it cannot do without such admission. The ascertainment of the validity or invalid- ity of the plea or demurrer is a condition precedent to the action of the court upon the exceptions; and the demand by 364: FEDERAL EQUITY PEOCEDTJBE. [§ 304-. the plaintiff for the action of the court upon his exceptions, before the validity or invalidity of the plea or demurrer has been passed upon by the court, is conclusively taken and deemed as a waiver of the action of the court, and an admis- sion of the validity of the plea or demurrer. The principle involved has no application to a plea or demurrer to a part of the relief, and an answer to the residue of the relief; nor has it any application to a plea to the relief, and an answer in sup- port of the plea.^ § 304. Amending pleas, — Under the federal statute of amendments and jeofails, the court may at any time permit the parties to amend any defect in the process or pleadings, upon such conditions as it shall in its discretion, and by its rules, prescribe;^ and this power to allow amendments extends to equity pleadings. It has always been the practice in courts of equity to allow the amendment of pleas, where there has been an evident slip or mistake, and the material ground of the defense is maae to appear to the court to be good ; but the court will require that it be informed precisely what the pro- posed amendment is to be, and how the mistake occurred, be- fore' the amendment is allowed; and a defendant has been allowed to withdraw his plea and plead de novo} 1 London Assurance Co. v. East Hunt v. Eousmaniere, 2 Mason, India Co., 3 P. Wms. §25, 327; Boyd 343, Fed. Cas. No. 6,898; American T. Mills, 13 Ves. 85; Darnell v. Key- Steel & Wire Co. v. Wire Drawers' mer, 1 Vern. 344; Sidney v. Perry, 3 & Die Maimers' Unions, 90 Fed. R. 599, Dick. 603; SiffJtin v. Manning, 9 Paige 600. Ch. 333. 4 Cooper's Eq. PL 234; Beames' n U. 8. Stat, at L., oh. 20, sees. 33, Pleas in Equity, 338, 329. 91; U. a R. S., sec 954 CHAPTEE XIII. DISCLAIMER. § 305. Defense by disclaimer. 306. Practice in regard to disclaimers. § 305. Defense by disclaimer.— " A defendant may disclaim all right or title to the matter in demand by the plaintiff's bill, or by any part of it. But a disclaimer cannot often be put in alone. For if the defendant has been made a party by mis- take, having at the time no interest in the matter in question, yet, as he may have had an interest which he may have parted with, the plaintiff may require an answer sufficient to ascertain whether that is a fact or not; and, if the defendant has had an interest which he has parted with, an answer may be also nec- essary to enable the plaintiff to make the proper party, instead of the defendant disclaiming. The form of the disclaimer alone seems to be simply an assertion that the defendant disclaims all right and title to the matter in demand, and in some in- stances, from the nature of the case, this may perhaps be suffi- cient; but the forms given in the books of practice are all of an answer and disclaimer. If the defendant disclaims, the court will generally dismiss the bill as against him with costs. But it has been said that, if the plaintiff shows a probable cause for exhibiting the bill, he may pray a decree against the defend- ant, upon the ground of the disclaimer. Where the defendant disclaims, the plaintiff ought not to reply." ^ § 306. Practice in regard to disclaimers. — "Where a dis- claimer and answer go to the whole bill and the answer is in- sufficient, and there are allegations in the bill unanswered, and to which the plaintiff is entitled to an answer, his proper course is to except to the answer for insufficiency; and the defendant cannot by disclaimer deprive the plaintiff of the right of re- , quiring a full answer, unless it is evident that the defendant ought not, after such disclaimer, to be continued as a party to lEedesdale (6th Am. ed.), 378, 379, 380. 366 FEDERAL EQUITY PEOCEDTJEE. [§ 306. the suit. Exceptions cannot l)e filed to a simple disclaimer; the only remedy of the plaintifif who is entitled to an answer in such a case is to move to take the disclaimer off the files ; but where the disclaimer is accompanied by an answer, the proper course is to except to the answer on the ground of in- sufiiciency.^ "While a defendant can disclaim an interest, he cannot disclaim a liability.* A defendant cannot by answer claim what by disclaimer he has declared he has no interest in or right to ; and if a disclaimer and answer are inconsistent, the matter will be taken most strongly against the defendant upon the disclaimer.' A defendant who has improperly interfered with a plaintiff's rights, so as to render a suit necessary for the protection of those rights, may be compelled to answer the whole bill and have the costs decreed against him, notwith- standing his disclaimer.* And where a bill was filed to com- pel trustees to pay a trust fund to the plaintiff, and alleges that other defendants had rendered the suit necessary by set- ting up a claim to the fund, and the bill also alleges collateral facts in support of the main fact of their previous pretended claim, and seeks to have costs decreed against them, such de- fendants cannot, by disclaimer, protect themselves from an- swering all the facts and collateral circumstances alleged in the bill to show that they did set up such claim.* If a defend- ant disclaims, and afterwards discovers that he had an interest which he was not apprised of at the time he disclaimed, the court will, upon the ground of ignorance or mistake, permit him to withdraw his disclaimer and make his claim; but in such case the court will require the defendant to make a strong showing by affidavit setting forth the facts.* And the defend- ant who disclaims, and shows that he had an interest but has parted with it, and points out the person to whom he trans- ferred it, need not answer further; but where it is shown that there was probable cause for bringing the suit, the plaintiff may bring the cause to a hearing and have a decree against the disclaiming defendant and all claiming under him since I Ellsworth V. Curtis, 10 Paige Ch. * Hutchinson v. Reed, Hofif. Ch. 105. 316. 2Glassington v. Thwaites, 2 Russ. ^ Graham v. Coape, 3 Myl. & Cr. 458. 638. 3 Redesdale (6th Am. ed.), 380, 381. « Cooper's Eq. PI. 310, citing Seton V. Slade, 7 Ves. 365. § 306.] DISCLAIMER. 367 the institution of the suit, without costs on either side.^ A dis- claimer may be accompanied by a demurrer, or a plea, or an answer, but all these defenses must clearly 'refer to separate and distinct parts of the bill.^ A disclaimer should be put in upon oath, and must be signed by the defendant, and in no case can such signature with propriety be waived, since no record will be received without signature which tends to prejudice the rights of the defendant.' Though a disclaimer is in sub- stance distinct from an answer, yet it generally adopts in most respects the formal parts of an answer, the words of course preceding and concluding an answer being used in a disclaimer. iSpoflford V. Manning, 2 Edw. Ch, * '1 Smith's Ch. Pr. 375. 358. * Cooper's Eq. PL 311. ^ Cooper's Eq. PL 309, 310; 1 Smith's Ch. Pr. 300, 275. CHAPTEE XIV. ANSWERS. §307. When the answer must be states new matter to avoid filed. them. 308. Bilatory objections not pre- § 335. Admissions made by defend- sented by answer. ant in his a,nswer are con- 309. The twofold oiHce of an an- clusive. swer in equity. 326. Answer of one defendant not 310. The general nature of an an- evidence against co-defend- swer as a defense. ant. 311. Any number of consistent de- 327. Setting cause down for hear- fenses may be set up in an ing on bill and answer. answer. 328. Effect of answer as evidence 312. What defenses in equity must when oath is waived. be set up by answer. 839. iThe rule determining what 313. Any defense to the merits may allegations in the answer be set up by answer. are responsive. 314 Same — Equity rule 39. 330. When answer of one defend- 315. Same — A judicial construc- ant inures to the benefit of tion of equity rule 39. his co-defendant. 316. Defendant's duty to make dis- 331. Answers in patent suits. covery. 333. Same — Notice of proof and 317. The manner in which the de- decree. fendant must answer the 333. Same— Defense that device is bill. not patentable. 318. Defendants must seek infor- 334 Procedure to compel answer. mation to enable them to 335. Same — When nominal party give discovery. need not appear. 319. Discovery of deeds, papers and 336. The form of an answer. documents. 337. Signature and oath of defend- 320. Exceptions to the rule requir- ant. ing the defendant to make 338. Answer by a married woman. discovery. 339. Answer by an infant. 321. Same — Manner of making ob- 340. Same — Method of appointing jections to giving the dis- guardian ad litem. covery. 341. Answer of idiots and lunatics. 332. Effect of answer as evidence 343. Answer of corporations. when defendant denies alle- 343. Amending answers and filing gations of the bill. supplemental answers. 33a Same— Tested by the rules of 344 Same— United States equity evidence. rules. 324. Answer is not evidence for 345. Requisites of application to defendant when it admits amend an answer, or file a allegations of the bill and supplemental answer. §§ 30Y-309.] ANSWERS. 369 § 346. When answer may be amend- ed, or supplemental answer filed. 347. Supplemental answer to amended bilL § 348. A further answer upon sus- taining exceptions for insuf- ficiency. 849. Taking answers off the file. § 307. When the answer must be filed. — If the defendant does not except to the bill for scandal nor impertinence, nor interpose a plea or demurrer to the bill, it shall be his duty, un- less the time shall be enlarged, to file his answer to the bill in the clerk's office on the rule-day next succeeding that of enter- ing his appearance ; ' and upon overruling a plea or demurrer, the defendant shall be assigned to answer the bill on the next rule-day, or at such other time as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done ; ^ and the defendant may file his answer at any time before the bill is taken for confessed, or afterwards with leave of the court.' § 308. Dilatory objections not presented by answer.— Ob- jections to the jurisdiction of the court, and matters in abate- ment, cannot be presented by answer, but should be raised by special plea.* To this there is one exception, specially made by a United States equity rule, which provides that the defendant may suggest by his answer that the bill is defective for want of parties, and that the plaintiff shall be at liberty, within four- teen days after answer filed, to set down the cause for argu- ment upon that objection only.' § 309. The twofold office of an answer in equity.— The office and functions of an answer in equity are determined by the office and functions of the bill which calls it forth; the character and essential nature of the answer is, and of neces- sity must be, determined by the character and essential nature of the bill to which it is a response. Now, the offices of an original bill are: 1. A pleading (1) to state in legal form all the essential ultimate facts which constitute the equity of plaint- iff, and upon which he rests his claim to relief; and (2) to an- 1 Equity Rule 18. Story, 11 Pet. 852; Wickliffe v. 2 Equity Rule 34 O wings, 17 How. 47 ; Wood v. Mann, 3 Equity Rule 33. 1 Sumn. 578, Fed. Gas. No. 17,953. ■♦Equity Rule 39; Livingston v. b Equity Rule 53. 24 370 FEDERAL EQUITY PEOCEDTJEE. [§ 309. ticipate and state the facts or pretended facts which defendant, will set up as a defense to the case made by the bill and to avoid such defense by the statement of other facts. 2. To ob- tain from defendant a discovery and admission of facts which (1) support and prove or tend to support and prove the case for relief made by plaintiff in his bill ; and (2) which counterprove and destroy or tend to counterprove and destroy the defense which the defendant will set up to the bill to defeat the relief sought by it.' It follows from the nature of the bill that the office of an answer in equity is twofold, namely: (1) It is a statement in legal form of all the essential ultimate facts which constitute the defense of the defendant to the case made for relief against him by the plaintiff's bill; and (2) it is an examination of the defendant upon oath to obtain from him the discovery sought by the bill to support and prove the plaintiff's case and to dis- prove the defense of the defendant. It contains the defensive allegations of the defendant, and the discovery upon oath re- quired of him by the plaintiff, indiscriminately blended in one record.^ The defensive allegations and the discovery often embrace facts arising out of, or closely connected with, the same transaction, which cannot be separately stated without needless prolixity and repetition; and, in such eases, it would seem that there is no sound reason why the elements of the answer should be stated separately. If the defendant sets up in his answer a defense which the plaintiff has in his bill anticipated and repelled by matter of avoidance, and in regard to which he has sought discovery, it would certainly be in con- sonance with reason and convenience to embrace the defensive allegations and the discovery in one complete statement of the entire transaction. A part of a transaction, indivisible in it- self, may constitute the defensive allegations; and another part 1 Langdell's Eq. PL, sec. 56; Mc- Robinson v. Davis, 1 Blatchf. 338, Closkey ViBarr, 40 Fed. R. 559; Redes- Fed. Cas. No. 11,880; 1 Smith's Ch. dale (6th Am. ed.), 50; 1 Daniell, Pr. 660, 666; Wigram on Discovery, 484, 485; Story's Eq. PL, sec. 31; sees. 18, 376,377,378,279,281; Hare Adams' Eq. 303; Mechanics' Bank v. on Discovery, sec. 5, p. 213. Levy, 3 Paige Ch. 606; Stafford v. 2 -wigram on Discovery, 11, 94, 113, Brown, 4 Paige Oh. 88, 91; Hawley 114 143; Hare on Discovery, 323; V. Wolverton, 5 Paige Ch. 532, 525; Langdell's Eq. PL, sea 68; 3 Daniell, Watson V. Rennick, 4 Johna Ch. 881 ; 338, 239, 240. •§ 310.] ANSWERS. 371 •of the same transaction may constitute the discovery sought; and in such a case nothing can be gained by splitting up the transaction and presenting the defense and the discovery in separate and distinct statements, scattered through different parts of the answer. In the preparation of an answer in equity the greatest care of the pleader should be, not the separation ■of the defensive allegations from the discovery, but (1) to state upon the record with clearness and precision, and in legal and logical form, the defense to the case made by the bill for re- lief;' and (2) to give the discovery to Avhich plaintiff is en- titled in such a direct and positive manner that he can have no doubt as to what part of the^ facts of his case are admitted by the defendant, and what part are controverted.' § 310. The general nature of an answer as a defense. — It has been shown in the chapter on pleas that defenses in bar to actions at common law are either (1) by way of traverse, or (2) by way of confession and avoidance, or (3) by matter of estoppel, which neither admits nor denies the facts averred by the plaintiff, but concludes him by the averment of some mat- ter of estoppel, as a record, or deed, or matter of fact, to which the plaintiff is a party or privy, and which, being inconsistent •with his allegations, precludes him from availing himself of them.' These classes of defenses are all available, in cases where they apply, respectively, in bar of the relief sought by ■s, bill in equity, and embrace every kind of defense that may be made to the merits. Lord Eedesdale defines a defense by answer as follows : " An answer generally controverts the facts stated in the bill, or some of them, and states other facts to ■show the rights of the defendant in the subject of the suit; but sometimes it admits the truth of the case m^de by the bill, :and, either with or without stating additional facts, submits the question arising upon the case thus made to the judgment ■of the court." * This language is adopted by Judge Story in his work on equity pleading.^ In order for a defendant to .avail himself of a defense, it must be stated in a clear and un- ") 13 Daniell, 240,241; Langdell'sEq. ch. 2, sees. 38-43; Stephen's PI. PL, sec. 79. (Heard), 51, 195-197. i! Brown v. Pierce, 7 Wall 211. ■• Eedesdale (6th Am. ed.), 15, 16. STidd's Prac. 590; 1 Chitty's PL 5 Story's Eq. PL, sec. 849. <9th Am. ed.) 469-511; Gould's PL, 372 FEDERAL EQUITT PEOOEDUEE. [§§ 311, 312, ambiguous manner in the answer; ' but the rule obtains m equity pleading that, in stating a cause of action or a defense^ it is sufficient to aver the essential ultimate facts upon which the claim or right is made to rest.* Deeds and writing should be pleaded according to their legal effect, and not according^ to their form of words.' § 311. Any number i>t consistent defenses may he set u^ in an answer. — A defendant in equity is at liberty to set up in his answer as many defenses as he pleases if they are con- sistent with each other; he may traverse the allegations upon which the plaintiff's title to relief is founded, and may at the- same time set up in his answer any matters of fact as a separate- and distinct defense to the claim for relief made by the bill or some part thereof; and he may in like manner, after traversing the allegations which constitute the equity of the bill, set up any number of separate and distinct affirmative defenses to the claim for reUef made by the bill or some part thereof. But the affirmative defenses set up must not be inconsistent with each other nor with the traverse ; for it is a rule of equity pleading" that a defendant cannot set up two distinct defenses in his an- swer which are so inconsistent with each other that, if the mat- ters constituting one defense are truly stated, the matters upon which the other defense is attempted to be based must neces- sarily be untrue in point of fact.* § 312. What defenses in equity must be set up by answer.. The only proper defense for a plea in bar is one which reduces the cause, or some part of it, to a single point, and from thence creates a bar to the suit, or to that part of it to which the plea applies, and thus avoids the necessity of making the discovery asked for, and the expense of going into the evidence at large; and, therefore, if the defendant wishes to set up as a defense 1 Stanley v. Robinson, 1 B. & M. Sharp v. Carlisle, 5 Dana (Ky.), 488; 537. National Mfg. Co. v. Meyers, Fed. 2 Ely V. Ne-w Mexico & Arizona Ry. Cas. No. 357 ; Jesus College v. Gibbs, Co., 139U.S. 291;St.Louisv. Knapp, 1 Younge & Coll. 145; Leech v. 104 TJ. S. 658. Bailey, 6 Price, 504; Ozark Land Co. 31Daniell,410,411,468,469; Equity v. Leonard, 24 Fed. R 658; Scanlan Rule 26. V. Scanlan, 134 111. 630, 640; Stone v. * Hopper V. Hopper, 11 Paige Ch. Moore, 36 111. 165; Graham v. Mason, 46; Wood v. Wood, 3 Paige Ch. 108; 4 Clifie. 88, Fed. Cas. No. 5,671. § 312.] ANSWEES. 373 Yarious facts which are not conducive to a single point on which the defendant means to rest his defense to the suit or «ome part of it, or if he wishes to avail himself of separate and distinct matters of defense, or if he wishes to set up sepa- rate and distinct defenses, or if he wishes to meet all the alle- gations of the bill, he must resort to an answer.^ The distinc- tion between that class of defenses which may be set up by -plea, and .which must be set np by answer, is well illustrated in the case of Rhode Island against Massachusetts. In that ■case the state of Ehode Island filed an original bill in equity against the state of Massachusetts in the supreme court of the United States, invoking the original jurisdiction of that court Tested in it by the federal constitution, to establish the bound- ary between the two states, according to their respective char- ters, and to be restored to the right of jurisdiction and sov- • ereignty over that part of her territory of which she alleged the state of Massachusetts had unjustly deprived her. To this bill the state of Massachusetts filed a plea in bar, in which it was in substance averred that the two states had, by their com- missioners duly appointed, settled the disputed boundary by mutual agreement, and that pursuant to the agreement the state of Massachusetts had, for more than one hundred years, been in the unmolested possession of the territory which Rhode Island claimed by her bill. In delivering its judgment upon the argument of the plea, the court, speaking through Chief Justice Taney, said : " The defense set up by this plea is two- fold: 1. That there was an accord and compromise of a dis- puted right. 2. Prescription, or an unmolested possession from the time of the agreement, that is, of more than one hundred years. These two defenses are entirely distinct, and depend upon different principles." The plea was accordingly overruled, upon the ground that "it presented a defense which could be 'Rhode Island v. Massachusetts, rant, 85 Fed. R36; Didier v. Davi- 14 Pet. 210; Farley v. Kittson, 130 son, 2 Sandf. Ch. 61; Goodrich v. U. S. 303; United States v. California Pendleton, 3 Johns. Ch. 384; Loud v. possession. and, with the knowledge of the plaintiff, made permanent and valuable improvements upon the property, then he must re- sort to an answer.^ A release, simply, maybe set up by plea; but if, in addition to the release, the defendant wishes to rely upon peaceable and adverse possession had pursuant to the re- lease, he must set up the whole by an answer.' § 313. Any defense to the merits may be set up by answer. The defendant is not required to set up any defense to the merits by a special plea, but he has always been at liberty to set up by way of answer any special matter which might be pleaded ia bar of the bill.* In the chapter on pleas an attempt was madfr to classify the various defenses that may be presented by a plea in bar, though it is not pretended that the classification em- braces all such defenses. Inasmuch as those defenses may be- presented by way of answer as well as by plea they are stated here in a recapitulated form. They are as follows: 1. The statute of limitations. 2. The statute of frauds. 3. Any other public statute which destroys the demand of the plaintiff. 4. Any private or particular statute. 5. A decree in equity by which the rights of the parties have been determined. 6. A verdict and judgment at law. 7. A judgment or sentence of a court of probate or some other domestic court. 8. A judgment- of a foreign court. 9. A release. 10. A stated account. 11. A settled account. 12. An award. 13. Bona fide purchaser for value without notice. 14. Title in defendant founded upon (1) a will, (2) a conveyance or other instrument, (3) long, peace- able and adverse possession. 15. Denial of the existence of a partnership. 16, Denial of the existence of a debt. 17. Denial of the execution or existence of a mortgage or other instrument. 114 Pet. 210. 488; Wyckofl v. Sniffin, 2 Edw. Ch. 2Redesdale (6th Am. ed.), 362. 365. 518; Van Hook v. Whitlook, 2 Edw, 3 Rhode Island v. Massachusetts, Ch. 304; McCabe v. Cooney, 2 Sandf. 14 Pet. 210, and authorities cited. Ch. 314; Redesdale (6th Am. ed.), 363. * Sharp V. Carlisle, 5 Dana (Ky ), § 314.] AisrswEKs. 375 18. Denial of plaintiff's title. 19. Laches. 20. Estoppel by- deed. 21. Estoppel by matter in pais or equitable estoppel. §314. Same — Equity rule 39. — ATJnited States equity rule provides that: "The rule, that if a defendant submits to answer he shall answer fully to all matters of the bill, shall no longer apply in cases where he might by plea protect himself from such answer and discovery. And the defendant shall be entitled in all cases by answer to insist upon all matters of de- fense (not being matters of abatement, or to the character of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar; and in such answer he shaTl not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or defense. Thus, for example, a lona fide purchaser for a valuable consideration without notice may set up that defense by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such a plea." ^ By the provisions of this rule, according to its very terms, a defendant is at liberty to do by way of answer precisely wiat he might do by a plea in bar and an answer in support of such plea; and his obligation to make discovery is the same in both methods of defense. An answer presenting the class of defenses mentioned in the rule is made to follow the analogies of a plea in bar and an answer in support of such plea. Two con- ditions are necessary to entitle a defendant to the benefit of the rule, namely: (1) The defense insisted upon in his answer must be in bar of the whole bill and such a defense as he would "be entitled to avail himself of by a plea in bar;"* that is, a defense which reduces the cause, or some part of it, to a single point, and from thence creates a bar to the suit, or to that part •of it to which the plea applies.' (2) The defendant in his an- 1 Equity Eule 39. ' Rhode Island v. Massachusetts, 14 2 Equity Rule 39; Gaines v. Ag- Pet. 310; Farley v. Kittson, 130 U. 8. nelly, 1 Woods, 338, Fed. Cas. No. 303; United States v. California & 5,17a Oregon Land Co., 148 U. S. 31, 49. 376 FEDBEAL EQUITY PEOCEDUEE. [§ 315. swer must "answer and discover" the matters which "he would be compellable to answer and discover upon filing a plea in bar and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or de- fense." ' "When the special bar is set up by plea, it is requi- site to the validity of the plea that it contain averments neg- ativing the matters set up in the bill to avoid the bar, and that defendant make a full discovery of such matters in an answer in support of the plea ; to state the rule concisely, the defend- ant must deny the matter set up to avoid the plea and must give all the discovery necessary to try the validity and truth of the plea; ^ and by the very terms of the equity rule under consideration the same principles govern when the bar is set up by answer. § 315. Same — Judicial construction of equity rule 39. — A defendant, by setting up a special bar by way of answer, avoids the constructive admissions which he makes by interpos- ing a plea in bar. "When the defendant files a plea in bar to the whole bill, he thereby conclusively admits, for all the pur- poses of the suit, the truth of every allegation and charge in the bill which is not denied by the plea ; this is a constructive ad- mission, resulting from the nature of a defense by plea;' but no constructive admission is made when the defense is set up by way of answer, and the burden is on the plaintiff to prove 1 Equity Rule 39. Lequesne, 3 Ves. Sen. 315; Kamp- ^Bogardus v. Trinity Church, 4 shire v. Young, 3 Atk. 155; Alardes Paige Ch. 195; Allen v. Randolph, 4 v. Campbell, Bunb. 365; Harris v. Johns. Ch. 493; Stearns v. Page, 1 Ingfedew, 3 P. Wms. 94; Price v. Story, 304, Fed. Cas. No. 13,339; Ev- Price, 1 Vern. 185; Radford v. Wil- eret v. Watts, 10 Paige Ch. 82; Clark son, 3 Atk. 815; Jared v. Saunders, V. Phelps, 6 Johns. Ch. 314; Sauzer v. 4 Bro. C. C. 323. De Meyer, 3 Paige Ch. 574; Harpen- 3 Kennedy v. Creswell, 101 U. S. 641, ding V. Reformed Dutch Church, 16 646; Dows v. Michael, 3 Paige Ch. Pet. 487; Goodrich v. Pendleton, 8 345; Bell v. Woodward, 48 N. H. 444; Johns. Ch. 384, 891; Hughes v. Blake, Bagley v. Adams, 6 Ves. 594; Wood 6 Wheat. 453; s. C, 1 Mason, 515, Fed. v. Strickland, 3 Ves. & Beam. 158; Cas. ivo. 6,845; Williams v. Lee, 8 Brownsword v. Edwards, 3 Ves. Sr. Atk. 238; Roche v. Morgell, 3 Sch. & 348; Hawtry v. Trollop, Nelson, 119; Lef. 731; Bolton v. Gardner, 8 Paige Wigram on Discovery, 36; Langdell's Oh. 373; Chappedelaine v. Deche- Eq. PL, sees. 98, 147; Redesdale (6th neaux, 4 Cranch, 306; Lonsdale V. Lit- Am. ed.), 353; Beames' Pleas ia tledale, 3 Ves; Jun. 451; Chicot v. Equity, 325. § 315.] ANSWERS. 377 €very allegation and charge of his bill not expressly admitted by the defendant upon the record;' and this general rule of equity pleading is not changed by United States equity rule 39.^' In the case ' last cited the plaintiff filed a bill to recover certain real property, and called upon defendants for discovery; the defendants, by way of answer, set up title by prescription, in bar of the whole bill, and failed to make the discovery required by the plaintiff. The answers were excepted to for insufficiency, and Justice Bradley, in overruling the exceptions, said : The de- fendants, to obviate the force of the exceptions to their answers, *' refer to the thirty-ninth rule in equity, established by the supreme court of the TJnited Starf;es, by which the well known rule of chancery pleading, that if a defendant submits to answer he shall answer fully to all matters of the bill, is abrogated in cases where the defendant might by plea protect himself from such answer and discovery; and in his answer sets forth the matter of such plea as a bar to the merits of the bill. The thirty- ninth rule declares that in such answer the defendant shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar and an answer in support of such plea, touching the matters set forth in the bill, to avoid or repel the bar or defense. The defendant claims that prescription is such a bar, and that, hav- ing set that up in their answer, they are excused from answering further. " Under the old practice, if a plea were filed, and issue taken upon it, and that issue were decided in the complainant's favor, he was entitled to a decree without proving the allegations of his bill. If the same matters were set up in an answer, he was obliged to prove his bill; but in aid of such proof he was en- titled to defendant's answer to the whole bill. The new rule which allows a defendant to set up a bar in his answer, and excuses him from answering further, still leaves the complainant under the burden of proving his bill, and takes from him the benefit of the defendant's answer. But this disadvantage is compensated for, in some degree, by the liability of the defend- 1 Brown v. Pierce, 7 Wall. 211; = Gaines v. Agnelly, 1 Woods, 238, Yftung V. Grundy, 6 Cranoh, 51: Fed. Gas. No. 5,173. Brooks V. Byam, 1 Story, 296, Fed. 3 Gaines v. Agnelly, sMpra. Cas. No. 1,947. 378 FEDERAL EQUITY PEOOEDUEE. [§ 316. ant to be called as a witness in the cause. Still, the general effect of the new rule being such as I have stated, it seems to be no longer a ground of exceptions, where the answer sets up a bar to the whole bill, and,claims the benefit of it, as of a plea* in bar, that it does not fully answer the allegations of the bill. If the bar set up and claimed as such be insufficient, or if it be unsupported by proper averments, or by a proper answer to rebut aUegations of the bill repugnant to the bar, the complain- ant may except for insuflBciency, set the cause down on bill and answer only, or file a replication and proceed to proofs, accord- ing to the exigency of the case. If the bar set up should be insufiicient as such, I think the complainant would be entitled to except, as for want of full answer, and to avoid answering the exceptions, the defendant, in such case, would require leave of the court before he could amend the bar set up in answer. If, instead of excepting, the complainant should go to the proofs, the burden would be on him to prove his bill, and on the de- fendant to prove his bar, each being entitled to examine the other as a witness. If, on the other hand, he should set the cause down for hearing on bill and answer only, the answer wo^ild have to be taken as true, and the bar therein as proved ; and though insuiflcient as a defense, the complainant could not have a decree unless the answer admitted those aUegations of the bill on which the prayer for relief was founded. Tljiese are the general rules which seem to me to govern pleadings in equity, as affected by the introduction of this new ruie.," § 316. Defendant's duty to make discovery. — It is a gen- eral rule in equity that every plaintiff is entitled to a discovery from the defendant of all the matters averred and charged in the bill, provided they are necessary to ascertain facts material to the merits of his case, and to enable him to obtain a com- plete decree against the defendant, and to substantiate the pro- ceedings, and make them regular and effectual ; the plaintiff may require such discovery, either because he cannot prove the facts, or in aid of proof from other sources^ and to avoid the expense of the examination of witnesses; and, therefore, it is the duty of the defendant to answer all the material allegations and charges of the bill, and all pertinent and material inter- § 317.] ANSWERS. 379 rogatories legitimately founded upon them.' In a suit for an account, an answer going no farther than to enable the plaint- iff to go into the master's office is not sufficient; the plaintiff is entitled to the fullest information the defendant can give by the answer, not by long schedules, in an oppressive manner, but giving the best account he can, and stating that it is so, refer- ring to books, so as to make them part of the answer, and giv- ing the fullest opportunity for inspection.^ It is not a sufficient foundation for an exception to an answer in equity that a fact charged in the bill is not answered, unless the fact is material, and might contribute to support the equity of the case of plaint- iff, and induce the court to give tjie relief sought by the bill.' § 317. The manner in which the defendant must answer the bill. — "To so much of the bill as it is necessary and mate- rial for the defendant to answer, he must speak directly, and without evasion, and must not merely answer the charges liter- ally, but he must confess or traverse the substance of each charge; and where there are particular, precise charges, they must be answered particularly and precisely, though the gen- eral answer may amount to a full denial of the charges." * The material allegations in the bill of complaint ought to be an- swered, and admitted or denied, if the facts are within the knowledge of the defendant; and, if not, he ought to state what his belief is upon the subject, if he has any; and if he has none, and cannot form any, he ought to say so, and call upon the plaintiff for proof of the alleged facts, or waive that branch of the controversy.' The usual requirement in the bill is that the defendant may, upon his oath, according to the best and utmost of his knowledge, recollection, information and belief, 1 Agar V. Regent's Canal Co., Coop- Oh. 65; White v. Williams, 8 Ves. er's R. 312; Jerrard v. Saunders, 3 193; Wood v. Merrell, 1 Johns. Ch. Ves. 453; Glengal v. Frazer, 3 Hare, 103; Kittridge v. Claremount Bank, 3 99, 105; Bank of Utica v. Messereau, Story, 590, Fed. Cas. Na 7,858; Brown 7 Paige Ch. 517; Mazarredo v. Mait- v. Pierce, 7 Wall. 211; Redesdale (6th land, 3 Mad. 70; Brereton v. Gamul, Am. ed.), 357, 359. 3 Atk. 341; Cartwright v. Hateley, 1 2 White v. Williams, 8 Ves. 193. Ves. Jr. 293; Shepherd v. Roberts, 3 3 Hardeman v. Harris, 7 How. 736. Bro. Ch. C. 339: Brooks v. Byam, 1 * Redesdale (6th Am. ed.), 365, 366. Story, 296, Fed. Cas. No. 1,947; Davis 6 pierce v. Brown, 7 Wall. 311; T. Mapes, 3 Paige Ch. 105; Methodist Brooks v. Byam, 1 Story, 296, Fed. Episcopal Church v. Jaques, 1 Johns. Cas. No. 1,947. 380 FEDERAL EQUITY PEOCEDtJEE. [§ SIT. full, true, direct, perfect and sufficient answer make to all and singular tlie several matters and things contained in the bill, and that as fully and particularly as if the same were again re- peated, and he thereunto severally and distinctly interrogated."- If the defendant has any knowledge upon the matters of the bill, he should answer accordingly. If he has no knowledge, but has any information upon the matters of the bill, he is bound to answer in direct and unequivocal terms, as to the state of his mind, with regard to every fact stated in the bill, either that he does or does not believe the matters alleged, or that he cannot form any belief, or that he has no belief con- cerning them, and, if he is unable to form any belief as to any fact, he must call on the plaintiff to prove it, or he must admit it, or waive the controversy concerning it. And if the defend- ant states his belief of a fact, that amounts to an admission on his part of its truth, or that he does not intend to put it in issue as a matter of controversy in the case.^ It is inconsistent with that reverence for truth which is required from those who answer upon oath, as well as with the rules of pleading, for a defendant to express himself obscurely in his answer, and leave to the court the task of divining his meaning. "Whenever this course is pursued, the court adopts the construction of the language which is strongest against him.' "Where a plaintiff in his bill directly charged upon defendant that he made and entered into a certain agreement, a simple denial by defendant in his answer, according to his recollection and belief, was held insufficient, and treated as a mere evasion; he was bound to make a positive and direct denial.* If a fact be charged which is in the defendant's own knowledge, he must answer positively, and not to his remembrance or belief; and as to facts not within his knowledge, he must answer as to his information and belief, and not to his information and hearsay merely, without stat- ing his belief one way or the other.' Where a defendant is answering as to his own acts, or as to other matters either known to him or charged in the bill to be within his personal 2 Daniell, 246. * Taylor v. Luther, 2 Sumn. 228, = Brooks V. Byam, 1 Story, 296, Fed. Fed. Cas. No. 18,796. Cas. No. 1,947. » Woods v. Morrell, 1 Johns. Ch. 3 Bailey v. Wilson, 1 Dev. & Bat. 103. Eq. Cas. (N. C.) 187. § 317.] ANSWEES. 381 knowledge, he must answer the substance of each charge dis- tinctly and separately.! Where the bill alleges the acts of the defendant, he must answer positively, and not merely as to his remembrance and belief.^ The defendant is bound to deny or admit all the facts stated in the bill, with all their material circumstances, without special interrogatories for that purpose.' The general rule is, that to so much of the bill as is material and necessary for the defendant to answer, he must speak directly and without evasion, and not by way of negative preg- nant. He must not answer the charges merely literally, but he must confess or traverse the substance of each charge pos- itively and with certainty; and particular, precise charges must be answered particularly and precisely, and not in a general manner, even though the general answer may amount to a full denial of the charges.* A defendant is not required to answer an interrogatory which is not founded on some allegation or charge in the bill.* "When a defendant answers that he has not any knowledge or information of a fact charged, he answers sufficiently, and is not bound to declare his belief; he is not to be supposed to have any belief one way or the other. The rule requiring the defendant to state his belief applies only when he states a fact upon information and hearsay; in such case he must add his belief or disbelief of the report or information. But when he has neither knowledge nor information as to the facts stated by the plaintiff, he is not bound to state his belief. It would be very unreasonable to compel a defendant, who knows nothing and has heard nothing on the subject, except from the plaintiff's bill, to declare what his belief is of the plaintiff's veracity. It is sufficient for him to say that he does not know, nor has he heard or been informed of, the facts charged in the bill, save by the bill itself; and that he there- fore leaves the plaintiff to make proof of his allegations and charges as he shall be advised.* The plaintiff is entitled to an answer to every fact charged in the bill, the admission or proof lUtica Ins. Co. v. Lynph, 3 Paige * Woods v. Merrell, 1 Johns. Ch. Ch. 210. 103. 2 Slater v. Maxwell, 6 Wall. 268, 277. « Bank v. Lynn, 1 Pet. 376 ; Bank v. 3 Methodist Episcopal Church v. Levy, 3 Paige Ch. 606; Grim v. Jaques, 1 Johns. Ch. 61; Bank v. Wheeler, 3 Edw. Ch. 334 Lynn, 1 Pet. 376. •* Morris v. Parker, 3 Johns. Ch. 297; King V. Bay, 11 Paige Ch. 235. 382 FEDERAL EQUITY PEOCEDUEE. [§ 318. of which is material to the relief sought, or to substantiate his proceedings and make them regular; although he might prove the fact by other testimony, if it is within the knowledge of the defendant, or is contained in books or papers in, his posses- sion or legally under his control, the plaintiff is entitled to his answer as to the fact, to save the expense of other proof.^ § 31S. Defendants must seek Information to enable them to give discovery.—^ " "Where defendants have in their power the means of acquiring the information necessary to enable them to give the discovery called for, they are bound to make use of such means, whatever pains or trouble it may cost them." " It is the imperative duty of agents, trustees, execu- tors, administrators, receivers, and all persons sustaining a fidu- ciary relation to property, to keep regular accounts of the trust estates confided to them, together with vouchers for all disbursements, and to be always ready with their accounts; and when a bill is filed against them for an account, it is their duty to examine all books, vouchers and papers in their posses- sion or under their power, and in their answers to give full and complete information as to the state of their accounts; and such information should be given in an expeditious and intel- ligible manner, and not in an oppressive way, referring to books and vouchers, and affording to the plaintiff the fullest opportunity for inspection and examination; and if defendants have not all the information necessary, they are bound to seek for it, and, if practicable, to obtain it. He who, undertaking to give information, gives but half information, in the view of a court of equity conceals, and there is no difference between the suggestiofalst and the suppressio veri? When corporations are sued in equity, " it is their bounden duty, before putting in their answers, to cause every deed, paper and muniment in their possession or power to be diligently examined, and to give in their answer all the information which results from such examination," and this rule " may, with propriety, be applied to all individuals who are required to answer a bill." 1 Davis V. Mapes, 3 Paige Ch. 105. Pearse v. Green, 1 Jac. & W. 140, 141 ; 2 3 Daniell, 358. Freeman v. Fairies, 3 Meriv. 43; 'Morony v. Vincent, 3 MolL 461; Walker V. Symonds, 3 Swanst. 73; Hardwioke v. Vernon, 14 Ves. 510, White v. Williams, 8 Ves. 193. 511; White v. Lincoln. 8 Ves. 363; <1 Daniell, 189; 3 Daniell, 358. §§ 319, 320.] ANswEEs. 383 § 319. DiscoTery of deeds, papers and doeiiments.— The discovery which a court of equity compels is not confined to a discovery of facts resting merely in the knowledge of the de- fendant, but extends to a discovery of deeds, papers and writ- ings of every description in his possession or power, the contents of which are material to the proof of the plaintiff's case; and the plaintiff may, in his bill, allege the existence of such deeds, papers and writings, and that they are material to the proof of his case, and that they are in the possession or power of de- fendant, and require him to set out in his answer the contents of such writings according to their purport and effect, or, if he pleases, in the Very words and flgjires thereof; and then it be- comes the duty of the defendant to disclose by his answer a full discovery of all such deeds, papers and writings as may be in his possession or power, and give a description of each, and state their contsnts ; and, if it appears from the answer of de- fendant that such deeds, papers and writings, or any of them, are material to the proof of the olaintiff's case, he will be en- titled to their production.^ § 320. Exceptions to the rale requiring defendant to make discovery. — There are some well-established exceptions to the rule requiring a defendant to give the discovery required by plaintiff in his bill. 1. He is not compellable to give any dis- covery which may subject him to a criminal accusation, or to any punishment, or which may tend to convict him of any crime, or which may subject him to a penalty or forfeiture, or to any loss in the nature of a forfeiture ; and the exemption from discovery extends not only to the main criminating facts, but to every incidental fact which might form a link in a chain of evidence, which, if perfect, would establish the de- fendant's liability to the criminal accusation, or prosecution, or conviction, or punishment, or penalty, or forfeiture.^ 2. He is lAtkyns v. Wright, 14 Ves. 211; ston v. Harris, 3 Paige Ch. 538; Taylor Watson V. Eennick, 4 Johns. Ch. 381 ; v. Bruen, 3 Barb. Ch. 303 ; Union Bank Wigram on Discovery, 6-9, 39-41, 98; v. Barker, 3 Barb. Ch. 358; United Hare on Discovery (2d Am. ed.), 212, States v. Saline Bank, 1 Pet. 100; 238, 229. Horsburg v. Baker, 1 Pet. 233-236; *Wigram on Discovery, 61-63; Greenleaf v. Queen, 1 Pet. 138; En- Hare on Discovery, 131-156; Legett tick v. Carrington, 19 How. St. Tr. v. Postley, 2 Paige Ch. 599; Living- 1039; Emery's Case, 107 Mass. 172; 384 FEDERAL EQUITY PEOOEDUEE. [§§ 321, 323. not compellable to make discovery of anything immaterial to ''the relief prayed by the bill.' 3. He is not compellable to dis- cover privileged communications between attorney and client.^ 4. He is not compellable to discover and produce his own title papers ; ' but this exemption does not apply when the discovery sought is evidence for the plaintiff as well as for defendant, or tends to disprove the defense set up to the bill.* 5. When a defendant sets up the defense that he is an innocent purchaser, whether by plea or answer, he is compellable to give the dis- covery necessary to try the validity and truth of the defense, and no more ; and it seems that the same principle applies whenever the defendant sets up by answer any defense to the whole bill which could have been pleaded in bar.' § 321. Same — Manner of making objection to giving the discovery. — " A defendant shall be at liberty, by answer, to decline answering any interrogatory, or part of an interroga- tory, from answering which he might have protected himself by demurrer ; and he shall be at liberty so to decline, notwith- standing he shall answer other parts of the bill from which he might have protected himself by demurrer."^ § 322. EiTect of answer as evidence wlien it denies allega- tions of the hill. — Where the answer is responsive to the bill of complaint, and positively denies the matter charged, and the denial has respect to a transaction within the knowledge of the defendant, the answer is evidence in his favor, and un- less it is overcome by the satisfactory testimony of two oppos- ing witnesses, or of one witness corroborated by other facts Boyd V. United States, 116 TJ. S. 616- « 3 Daniell, 61-64; Wigram on Dls- 641; Lees v. United States, 150 U. S. oovery (Second Proposition), 90-112. 478-483; U. 8. Const., 4th and 5th ^ 2 Daniell, 63, 64; Wigram on Dis- Amend. covery, 90-92. 12 Daniell, 55; Eedesdale (6th Am. » Wigram on Discovery, 86-39; ed.), 226, Wigram on Discovery, 64- Chadwiok v. Broad wood, 3 Beav. 540; 76; Hardeman v. Harris, 7 How. 726; Equity Rule 39. Wiswallv. Wandell, BBarb. Ch.312; 6 Equity Rule 39; Gaines v. Ag- Utica Ins. Co. v. Lynch, 3 Paige Ch. nelly, 1 Woods, 238, Fed. Cas. No. 210. 5,173. 2 2 Daniell, 56, 61; Wigram on Dis- 7 Equity Rule 44. This rule is a covery, 63, 63 ; Jones v. Pugh, 12 Sim. verbatim copy of the thirty-eighth of 470; Greenough v. Gaskell, 1 Mylne the English chancery orders of Au- & K 98. gust, 1841. § 322.] ANSWBES, 385 and circumstances, which give to it greater weight than the answer, or which are equivalent in weight to a second witness, it is conclusive, so that the court will neither make a decree, nor send the case to trial at law, but will simply dismiss the bill of complaint.! The qualifications of the rule, and the rea- son upon which it is based, are stated by Chief Justice Marshall as follows: " The general rule that either two witnesses, or one Avitness with probable circumstances, will be required to out- weigh an answer asserting a fact responsively to the bill, is admitted. The reason upon which the rule stands is this: The plaintiff calls upon the defendant to answer an allegation he makes, and thereby admits the answer to be evidence. If it is testimony it is equal to th% testimony of any other wit- ness ; and as the plaintiff cannot prevail if the balance of the proof be not in his favor, he must have circumstances in addi- tion to his single witness, in order to turn the balance. But certainly there may be evidence arising from circumstances stronger than the testimony of any single witness. The weight of an answer must also, from the nature of evidence, depend, in some degree, on the fact stated. If a defendant asserts a fact which is not and cannot be within his own knowledge, the nature of his testimony cannot be changed by the positiveness of his assertion. The strength of his belief may have betrayed him into a mode of expression of which he was not fully ap- prised. "When he intended to utter only a strong conviction of the existence of a particular fact, or what he deemed an in- fallible deduction from facts which were known to him, he may assert that belief or that deduction in terms which convey the idea of his knowing the fact itself."^ The answer itself may contain the circumstances giving the greater credit to the plaintiff's one witness, sufficient to overcome the denials of de- fendant and to authorize a decree against him.' Where it is 1 Badger v. Badger, 3 Cliff. 137, 135 U. S. 347, 359; Vigel v. Hopp, 104 Fed. Cas. No. 718; Hard way v. Eliot U. S. 441, 443; Pember v. Mathers, 1 Nat Bank, 4 Clifle. 294, Fed. Cas. Brown CJi. 53; Walton v. Hobbs, 3 No. 6,373; Clark's Ex'rs v. Van Atk. 19; Tobey v. Leonard, 2 Wall. Riemsdyk, 9 Cranoh, 160; Hughes v. 433, 440. Blake, 6 Wheat. 453 ; Hughes v. Blake, ^ Clark's Ex'rs v. Van Riemsdyk, 9 1 Mason. 515, Fed. Cas. No. 6,845; Cranch, 160. Union Bank v. Geary, 5 Pet. Ill; 'East India Co. v. Donald, 9 Ves. Southern Development Co. v. Silva, 275. 25 386 FEDERAL- EQUITY PEOCEDUEE. [§ 323. alleged in the answer that the defendant is a stranger to the matters and things alleged in the till, and that he could not answer concerning the same, because he has no information or belief upon the subject, the answer is not an admission of the allegations of the bill; nor does such an answer make it neces- sary for the plaintiff to introduce more than one witness to prove his bill.^ § 323. Same — Tested by the rules of evidence. — The prin- ciple upon which the positive, responsive denials of an answer on oath are allowed to prevail, unless overcome by two wit- nesses, or one witness and corroborating circumstances, is that the plaintiff, by calling on the defendant to answer the alle- gations of the bill on oath, makes him a witness, and his posi- tive, responsive allegations under oath, respecting transactions and facts within his knowledge, become evidence; but the competency and weight of the responsive allegations of the an- swer as evidence must be tested by the general rules of law which govern and determine the competency and weight of evidence and the credibility of witnesses; such answers are open to all the tests of truth to which a technical deposition or oral evidence may be subjected. "When, therefore, the an- swer, though responsive, states facts not within the knowledge of the defendant, or the denials are not direct, positive and ' unequivocal, the answer is not evidence. Or if the facts are stated upon hearsay or information derived from others, or upon^belief based upon such hearsay and information, or if the answer can be impeached by internal evidence, as that it is so inconsistent, contradictory and incredible within itself as to deprive it of the character of a fair answer, or that the facts and circumstances stated in the answer show that the allega- tions therein relied on by defendant to defeat the bill are in- consistent with truth, the answer will not be received as evi- dence. A defendant may affirm a fact to be true and yet, by a statement of other facts and circumstances, show that it is without any foundation in truth. Such answers are regarded merely as a pleading denying the allegations of the bill, but they have no weight as evidence.^ 1 Pierce v. Brown, 7 Wall 205. 206; Adams v. Adams, 21 Wall 185; 2 Clark's Ex'rs v. Van Riemsdyk, 9 Commercial Ins. Co. v. Union Ins. Cranch, 153; Brown v. Pierce, 7 WalL Co., 19 How. 318; Scammon v. Hob- ■•§§ 324, 325.] ANSWERS. 38T § 324. Answer is not evidence for defendant when it ad- mits allegations of the bill and states new matter to avoid them. — When the defendant by his answer admits the facts stated in the bill, and states other facts in avoidance of them, and the plaintiff takes issue upon the answer by filing the gen- eral replication, the plaintiff is not required to prove his bill ■or that part of it which is so admitted ; but the answer is not evidence in favor of the defendant to prove the new matter rset up by him in avoidance, and such new matter must be estab- lished by independent proof to be of any avail as a defense. ■The rule on this subject is thus stated by Chancellor Kent: When an answer is put in issue, what is confessed and admitted by it need not be proved; but where the defendant admits a fact, and insists upon a distinct fact by way of avoidance, he must prove the fact so insisted on in defense. This has been fully recognized by the United States supreme court as the cor- rect rule.* So far as an answer in equity sets up new facts by way of discharge or avoidance of the matter of the bill, or -alleges separate and independent agreements, it is not evidence ior the defendant ; but all such allegations must be substanti- ated by proof aliunde? § 335. Admissions made by defendant in his answer are ■conclusive. — Evidence procured from defendant by admissions in his answer is generally less expensive and often more con- venient than if it were obtained from witnesses ; and admis- sions which have been deliberately made by the defendant under oath for the purposes of the suit have the further ad- son, Hask. 406, Fed. Cas. No. 13,434; Seitz v. Mitchell, 94 U. S. 580, 586; .Stevens v. Post, 12 N. J. Eq. 408, 413; Clark v. White, 13 Pet. 178; McCoy Brown v. Buckley, 14 N. J. Eq. 294, v. Rhodes, 11 How. 181; Thompson v. ■299; Lawrence v. Lawrence, 21 N. J. Lambe, 7 Ves. 587; Green v. Hart, 1 Eq. 317, 318; Commercial Bank v. Johns. (N. Y. Supr. Ct.) 580; Flagg 'Reckless, 5 N. J. Eq. 650, 651; Fry- v. Mann, 2 Sumn. 486, Fed. Cas. No. ,rear v. Lawrence, 5 Gilm. (III.) 825; 4,847. Beimel v. Brown, 27 N. E. R (111.) 44; 2 Randall v. Phillips, 8 Mason, 375, Knickerbocker V. Harris, 1 Paige Ch. Fed. Cas. No. 11,555; Parteriohe v. ■209; Town v. Needham, 3 Paige Ch. Pawlet, 3 Atk. 383; Brace v. Taylor, .546; East India Co. v. Donald, 9 Ves. 2 Atk. 253; Ridgeway v. Darwin, 7 275. Ves. 587; Thompson v. Lambe, 7 Ves. 1 Hart V. Ten Eyok, 2 Johns. Ch. 62; 587; Kilpatrick v. Love, 2 Amb. 589; Roach V. Summers, 20 Wall 165; Blount v. Burrow, 1 Ves. Jr. 546; Rob- •Clements v. Moore, 6 Wall. 299, 316; inson v. Sootney, 19 Ves. 583. 388 FEDERAL EQUITY PEOCEDUEE. [§§ ^^^j, 327. vantage of being conclusive ; that is, such admissions act as an estoppel to the introduction of conflicting testimony. When, therefore, the defendant by his answer admits any fact alleged in the bill, such fact is no longer an issue in the case, and the defendant will not be permitted to offer any evidence to con- trovert his admissions.' § 326. Answer of one defendant not evidence against co- defendant. — It is a general rule in equity that the admissions or statements in the separate answer of one or more defend- ants cannot be read in evidence to sustain the plaintiff's case against a co-defendant, unless such defendants stand in such a relation to each other that their admissions, not under oath, and out of court, would be evidence against each other, as where they are combined either legally or fraudulently, so as to create a unity of interest between them.* The confessions and admissions of partners, in relation to partnership transac- tions, are admissible in an action against each other; and upon this principle the answers of partners in relation to partner- ship concerns may be read in evidence against each other.' § 327. Setting cause down for hearing on bill and an- swer. — The plaintiff always has the option of setting the cause down for hearing upon bill and answer;* but by doing so he makes a constructive admission of the truth of all matters well pleaded in the answer. When a suit in equity is set down for 1 Gresley's Eq. Ev. 11, 457; E. L Co. v. Chapman, 3 Stewart's R. (Ala.> V. Keightly, 4 Mad. 16; Deimel v. 163; Singleton v. Gayle, 8 Porter Brown, 27 N. E. E. (111.) 44; Insurance (Ala.), 370; Winters t. January, Litt. Co. V. Myer, 93 111. 371; Morgan v. Sel. Cas. 13; Dale v. Madison, 5 Leigh, Corliss, 81 111. 73; Roberts v. Roberts, 401 ; Daniell v. Ballard, 3 Dana (Ky.), Dick. 573. 39; Hardin v. Baird, Litt. Sel. Cas. 2 Christie V. Bishop, 1 Barb. Ch. 105; 340; Jones v. Tuberville, 3 Ves. 11; Dick V. Hamilton, Deady, 333, Fed. Morse v. Royal, 13 Ves. 356; Mills v. Cas. No. 3,890; Lenox v. Notrebe, Gore, 3 Pick. 28; Chapin v. Coleman, Hempst. 351, Fed. Cas. No. 8,346c; 11 Pick. 331; Wych v. Meal, 3 P. Leeds v. Insurance Co., 3 Wheat. Wms. 311; Van Riemsdyk v. Kane, 380-, Clark v. Van Riemsdyk, 9 Cranch, 1 Gall. 630, Fed. Cas. No. 16,873. 156; Grant v. United States Bank, 1 3 Wood v. Braddick, 1 Taunt. 104; CaL Caa in Err. 113; Phenix v. In- Van Riemsdyk v. Kane, 1 Gall. 630, gram, 5 Johns. 413; Hunt v. Steph- Fed. Cas. No. 16,873. enson, 1 A. K. Marsh. 570; Mosely v. ■• Equity Rule 60; Reynolds v. Craw- Armstrong, T. B. Mon. 388; Graham fordsville Bank, 113 U. S. 409; Banks Y. Sublett, 6 J. J. Marsli. 44; Collier v. Manchester, 138 U. S. 244, 251 §§ 328, 329.] ANSWERS. 389 final hearing on bill and answer, upon that hearing the mate- rial allegations of the answer are taken- as true in all points, and the allegations of the bill which are not admitted by the answer are to be taken as untrue. The setting the cause down for hearing on bill and answer is in eifect a submission of the cause to the court by the plaintiff, on the contention that he is entitled to the decree prayed for in his bill upon the admis- sions and notwithstanding the denials of the answer.^ § 328. Effect of answer as evidence when oath is waived. " If the complainant, in his bill, ^ball waive an answer under oath, or shall require an answer under oath with regard to cer- tain specified interrogatories, the answer of the defendant, though under oath, except such parts thereof as shall be di- rectly responsive to such interrogatories, shall not be evidence in his favor, unless the cause shall be set down for hearing on bill and answer only; but may nevertheless be used as an affi- davit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or any other incidental motion in the cause ; but this shall not prevent a defendant from becom- ing a witness in his own behalf under section 3 of the act of congress of July 2, 1864." ^ When an answer on oath is waived, the plaintiff may avail himself of any admissions and allegations in the answer which go to establish the case made by the bill, but such answer is not evidence in favor of the de- fendant for any purpose,' except when the case is set down for hearing on bill and answer only.^ § 329. The rule determining what allegations in the an- swer are responsive. — Inasmuch as the responsive allegations in the answer which admit the case made by the bill or any part of it are conclusive evidence in favor of the plaintiff, and 1 Reynolds v. Crawf ordsville Bank, ^ Equity Rule 41. 112 U. S. 409; Banks v. Manchester, 3 Patterson v. Gaines, 6 How. 584; 138 U. S. 244, 354; Leeds v. Insurance Bank v. Geary, 5 Pet. 99; Bartlett v. Co., 2 Wheat. 380; BrinkerhofE v. Gale, 4 Paige Ch. 503; Synimes v. Brown, 7 Johns. Ch. 318; Grosvenor Strong, 1 Stew. Eq. 131; Reed v. V. Cartwright, 2 Ch. Gas. 21; Barker Cumberland Ins. Co., 36 N. J. Eq. 393, V. Wyld, 1 Vern. 140 ; Perkins v. Nich- 396. ols, 11 Allen, 543; Dale v. McEvers, < Equity Rule 41. S Cow. 118; Lord Bacon's Orders 64; U. S. Equity Rule 41. 390 FEDERAL EQUITY PEOCEDUEE. [§ 329, the responsive allegations in the answer which deny the case ' made by the bill or any part of it are evidence in favor of de- fendant, requiring two witnesses, or one witness and corrobo- rating circumstances, to overcome them, and the allegations in the answer setting up new matter in avoidance are not evi- dence in favor of defendant, it has, therefore, always been a matter of great importance to distinguish between those alle- gations of the answer which are responsive to the bill and those allegations which are not responsive to the bill, but which set up new matter in avoidance and discharge ; and there has- been much discussion as to the rule which should control the matter, and especially in cases where the plaintiff has sought to read in evidence the admissions of a defendant in his an- swer, without reading and being bound by those allegations of the answer which, in connection with the admissions, set up matters in defense and discharge. It would seem from an ex- amination of the authorities that the rule upon the subject is this: If the matters alleged in the bill which are admitted by the answer, and the matters alleged in the answer in defense and discharge of the defendant, arise out of the same agree- ment or transaction, so as to constitute one whole, connected matter, and which is, by fair and reasonable construction,, wholly embraced within the subject-matter of the bill and the discovery required by it, then, in such case, the matters alleged in defense and discharge, as well as the admissions, are respon- sive to the biU, and the plaintiff cannot read in evidence the admissions without also reading the matters alleged in the an- swer in defense and discharge of the defendant; but if the mat- ters alleged in the bill which are admitted in the answer, and the matters alleged in the answer in defense and discharge of the defendant, arise out of separate and distinct agreements or transactions, and do not constitute one whole, connected mat- ter, and the matters alleged in defense and discharge cannot,, by fair and reasonable construction, be considered as embraced within the subject-matter of the bill and the discovery required by it, then in such case the matters alleged in defense and dis- charge are not responsive to the biU, and, therefore, are not evidence in favor of the defendant, and his admissions may be read in evidence by the plaintiff, without being affected by the' § 330.] ANSWERS. 391 matters alleged in the answer in defense and discharge.' Lord Hardwioke said : " If a man admit by his answer that he re- ceived several sums of money at particular times, and states that ho paid away those sums at other times in discharge, he must prove his discharge." * § 330. When answer of one defendant inures to the bene- fit of his co-defendant. — "Where the plaintiff in his bill alleges a joint liability or a joint and several liability against several defendants, or where the bill alleges the same state of facts as a ground of relief against all of several defendants, if one of the defendants makes default, hfe default and a formal decree pro Gonfesso may be entered against him ; but no final decree on the merits can be made against him until the case is dis- posed of as to the other defendants; and if the other defend- a:nts answer, denying the allegations which constitute the equi- ties of the bill, and the plaintiff fails upon the proof, such answer will inure to the benefit of all the .defendants, and the bill will be dismissed on the merits as to the defendant in de- fault as well as to those who have answered.' 1 Hart V. Ten Eyck, 3 Johns. Ch. 63 ; tin, 6 Smedes & M. (Miss.) 61 ; Lingan Talbot V. Rutledge, 4 Bro. 74; McCoy v. Henderson, 1 Bland, 261 ; Clason v. V. Rhodes, 11 How. 141; Napier v. Morris, 10 Johns. 534; Andres v. Lee, Elam, 6 Yerger, 113; Thompson v. 1 Dev. & Bat. Eq. (N. C.) 319, 321; Lambe, 7 Ves. 587; Bartlett v. Gil- State v. Columbia, 12 S. C. 370; Petty lard, 3 Russ. 157; Orniund v. Hutch- v. Hannum, 2 Humph. 103; Hennes- inson, 13 Ves. 47; Rude v. Whit- see v. Ford, 8 Humph. 500; Cherry v. church, 3 Sim. 562; Nurse v. Bunn, 5 Clements, 10 Humph. 552; Caldwell Sim. 335; Meritt v. Brown, 19 N. J. v. McFarland, 11 Lea, 467; Smith v. Eq. 386; Beals v. Illinois M. & T. R. Cunningham, 3 Tenn. Ch. 573; Pliil- Co., 133 U. S. 390, 295; Robinson v. lips v. Hallister, 3 Cold. 73. Scotney, 19 Ves. 683; Bellows v. " I believe not a case can be found Stone, 48 N. H. 435; Blunt v. Burrow, in which it is insinuated that where 4 Bro. C. C. 75; Schwartz v. Wendell, there are two defendants having a Walk. Ch. 367; Cooper v. Tappan, 9 joint interest and one appears and Wis. 361; Dunham v. Jackson, 6 answers, and disproves the plaintiff's Wend. 33; Eberly v. Goflf, 9 Harris, case, that the plaintiff can have a de- 351; Pusey v. Wright, 7 Casey, 387; cree against the other who had made Eaton's Appeal, 66 Pa. St. 483. default, and against whom the bill 2 Talbot V. Rutledge, 4 Bro. 74. was taken pro confesso. It would be 3Frowv. DeLaVega,15 Wall.552, unreasonable to hold that because 554; Butler v. Kinzie (Tenn.), 15 S. one of the defendants had made de- W. R. 1068; Salmon v. Smith, 58 Miss, fault the plaintiff should have a de- 399, 409, 410; Minor v. Stewart, 3 cree even against him, when the How. (Miss.) 913; Hargrove v. Mar- court is satisfied, from the proofs 392 FEDEEAL EQUITY PEOCEDUKE. [§ 331. §331. Answers in patent suits. — The United States Ee- vised Statutes, as amended by act of congress of March 3, 1897, provided that the defendant in any suit in equity for re- lief against an alleged infringement of a patent may set up in his answer the following defenses, and also give notice of the proof thereof in his answer, namely: " First. That for the purpose of deceiving the public the de- scription and specification filed by the patentee in the patent office was made to contain less than the whole truth relative offered by the other, that in fact the plaintiff is not entitled to a decree. Though I have not met with a case in equity to the point, yet, pursuing the analogy between proceedings at law and in equity, we are not with- out very clear authority; for it is a well-settled principle of law, that in actions upon contract the plea of one defendant inures to the benefit of all; for, the contract being entire, the plaintiff must succeed upon it against all or none; and, therefore, if the plaintiff fails at the trial upon the plea of one defendant he cannot have judgment against those who let judgment go by default." Spencer, Justice, in Calson v. Morris, 10 Johns. 534 (March, 1812). " If Stewart was the sole defendant, or his rights de- pended on distinct facts, his default in appearing and answering would have been an admission of the facts charged in the bill. But it would be unwarrantable to hold that, because one of the defendants had made de- fault, the plaintiff should have a de- cree against him, when the court is satisfied from the facts presented by the others that the plaintiff is not entitled to a decree." Pray, Justice, in Minor v. Stewart, 3 How. (Miss.) 913 (Jan., 1838). "Where a claim is against two jointly, and one suffers the bill to be taken pro confesso, and the other sets up a defense which defeats the claim altogether, what disposition of the cause is to be made as against him who makes no resist- ance? We believe that from anal- ogy to the doctrine which prevails at law in similar cases, . . . and because of the obvious equity of such a course, we are bound to hold that the defense must inure to the bene- fit of all defendants having a joint interest in the subject-matter." Gas- ton, Judge, in Andres v. Lee, 1 Dev. & Bat. Eq. (N. C.) 319, 831 (June, 1836). "We think that where a joint de- fendant answers a bill, and by proof removes the matter of equity set up against himself and the other defend- ants, who do not answer, there can be no decree against the defendant so failing to answer. The rule would be different if the bill were to allege a distinct matter of equity against the party failing to appear. " Green, Jus- tice, in Hennessee v. Ford, 8 Humph. 499, 501 (Dec, 1847). " The settled doc- trine of this court is that when one of several defendants makes default, followed by a, pro confesso, and others defend, and it appears from their de- fense that, on the whole case, the complainant is not entitled to suc- ceed, he will not be allowed to do so even against him who made default. The principle supporting this rule is that the complainant must show him- self entitled to relief or he shall not have it, and it matters not which of those whom he calls on to defend may show that his complaint is groundless." Campbell, Justice, in Salmon v. Smith, 58 Miss. 409. 410 (1880). § 331.J ANSWERS. 393 to his invention or discovery, or more tlian is necessary to pro- duce the desired effect; or, " Second. That he had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfect- ing the same ; or, " Third. That it has been patented or described in some printed publication prior to his supposed invention or discov- ery thereof, or more than two years prior to, his application for a patent therefor; or, " Fov/rih. That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented; or, "Fifth. That it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public." ^ In order to maintain a suit in equity for the infringement of a patent, the plaintiff must allege and prove two things, namely: (1) that he or the person under whom he claims was the original and first inventor of the patented improvement ; (2) that it has been infringed by the party against whom the suit is brought. If the thing patented is an entirety, and incapable of division or of separate use, the defendant, desiring to interpose the statutory defenses, must address them to the invention as a whole, and not to a part of it, or to one or more claims of the patent, if they are less than the entire invention.^ More than one patent may be included in one suit, and more than one in- vention may be secured in the same patent, in which case the several defenses may be made to each patent in the suit, and to each invention to which the charge of infringement relates.' An allegation in an answer that the patentee had surrepti- tiously or unjustly obtained the patent for that which was in fact invented by another, unaccompanied by the further alle- gation that the alleged first inventor was at the time using reasonable diligence in adapting and perfecting the invention, is not suificient to defeat the patent, and constitutes no de- fense to the charge of infringement.* 1 U. S. E. S., sec. 4920, amended by 3 Bates v, Coe, 98 IT. S. 31, .48; act of congress of March 3, 1897, 29 Parks v. Booth, 103 U. S. 96, 107. U. S. Stat, at L., ch. 391, sec. 2, p. 692. < 29 U. S. Stat, at L., ch. 391, sec. 2 Parks v. Booth, 102 U. S. 96, 107. 2, p. 692; Agawam Woolen Co. v. 394 TEDEEAL EQUITY PEOCEDUEE. [§ 332. §332. Same — Notice of proof and decree. — The statute further provides that : " And in notice as to proof of previous, invention, knowledge or use of the thing patented, the defend- ant shall state the names of the patentees and the dates of their patents, and when granted, and the names and residences of the persons alleged to have invented or to have had the prior knowl- edge of the thing patented, and where and by whom it has been used; and if any one or more of the special matters alleged shall be found for defendant, judgment shall be rendered for him with costs." ' The statute requiring notice was not intended to apply to cases where the alleged invention is not patentable; the court will take notice of that fact.^ Evidence of the state of the art is admissible in actions at law under the general issue without a special notice, and in equity cases without any aver- ment in the answer touching the subject ; it consists of proof of what was old and in general use at the time of the alleged invention, and is received for three purposes, and none other, namely: (1) to show what was the old, (2) to distinguish what was new, and (3) to aid the court in the construction of the patent.' Evidence of the statutory defenses in a suit at law is not admissible without giving the notice required by the stat- ute, and the settled practice in equity is to require the de- fendant, as a condition precedent to such defenses, to give the plaintiff the same notice and information in his answer,* and, indeed, the defendant is required by the express terms of the statute to give such notice in his answer.' Prior use and knowl- edge of the thing patented may be pleaded as a defense to a suit for infringement ; but the defendant cannot be allowed to give evidence to support such defense if seasonable objection be made, unless it appears that he gave notice in his answer of the names and residences of the persons alleged to have had such prior knowledge of the thing patented.' It seems to be settled that the true construction of the act of congress is that only the names of those who had invented or used the antici- Jordan, 7 "Wall. 583, 610; Reed v. * Agawam Woolen Co. v. Jordan, 7 Cutter, 1 Story, 599, Fed. Cas. No. Wall. 583, 610; Bates v. Coe, 98 U. S. 11,645. 81, 50. 1 29 U. S. Stat, at L., oh. 391, sec. 3, s u. S. R. 8., sec. 4920 ; 29 U. S. Stat p. 692. at L., oh. 391, sec. 2, p. 693. 2 Brown v. Piper, 91 IT. 8. 37, 44. « Roemer v. Simon. 95 U. 8. 214, 231 ; 3 Brown v. Piper, 91 U. 8. 37, 44. Blanchard v. Putnam, 8 Wall. 430. § 333.] ANSWERS. 395 pating device or improvement, and not the names of those who are to testify of its invention or use, are required to be pleaded in the answer; this is all that is necessary to protect a patentee against surprise, and he need not be informed by the answer who are to testify in regard to the invention or use.^ § 333. Same — Defense that device is not patental)le.— The statutory defenses are not the only defenses which may be made to a bill in equity for the alleged infringement of a patent. "Where the commissioner of patents, under a misconception of the law, has exceeded his authority in granting or reissuing a patent, there is no principle which^revents a party, sued for its infringement, from availing himself of its legality, independ- ently of any statutory permission so to do. A valid defense not given by statute is that the thing patented is not a patentable in- vention, and, being a question of law, the courts are not bound by the decision of the commissioner of patents.'^ If, from any cause, the patent is void on its face, the defendant may avail himself of that defense without setting it up in his answer; and the objection that the patent is for a thing which is not a pat- entable invention falls within this class of defenses.' In a case before the supreme court the plaintiff claimed that it was unfair to him to allow the defendant to avail himself of the defense that the patent was void without having set it up in his an- swer, and the court, upon a review of the decided cases upon the point which sanctioned the practice, said: ""We think the practice thus sanctioned is not unfair or unjust to complainants in suits brought on letters patent. If letters patent are void because the device or contrivance described therein is not pat- entable, it is the duty of the court to dismiss the cause on that ground, whether the defense be made or not. It would ill be- come a court of equity to render money decrees in favor of a complainant for the infringement of a patent which the court could see was void on its face for want of invention. Every suitor in a cause founded on letters patent should therefore 1 Woodbury Planing Machine Co. 369; Slawson v. Grand Street R. Co., V. Keithi, 101 U. S. 479, 494; Roemer 107 U. S. 649, 655; Dunbar v. Myers, V. Simon, 95 U. 8. 318. 94 U. S. 187 ; Brpwu v. Piper, 91 U. S. 2Hahn v. Harwood, 113 U. S. 354, 44; Hendy v. Golden State & Miners' 3Hahn V. Harwood, 113 U. S. 854, Iron Works, 137 U. S. 370, 376. 396 FEDERAL EQUITT PKOOEDUEE. [§ 334. understand that the question whether his invention is patent- able or not is always open to the consideration of the court, whether the point is raised by the answer or not." ^ "When the invention is simply the application by the patentees of an old process to a new subject, without any exercise of the inventive faculty, and without the development of any new idea which could be deemed new and original in the sense of the patent law, it is not patentable; and no one can lawfully appropriate to himself and exclude others from using it in any usual way for any purpose to which it may be desired to apply it.^ § 334. Procedure to compel an answer. — The slow and oppressive procedure of the English practice' for compelling an appearance and answer is not followed in the courts of the United States, but, in its stead, a simple, speedy and effectual procedure is established by the United States equity rules. Under the procedure provided by those rules, if the defendant shall fail to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable; or if he shall fail to file his plea, demurrer or answer to the bill in the clerk's office on the rule-day next succeeding that of entering his appearance; or if, upon overruling defendant's plea or de- murrer, he shall fail to file his answer to the bill on the next succeeding rule-day, or at such other time as the court by its order may direct ; or if, when the plaintiff file's an amended bill, the defendant shall fail to file a new or supplemental an- swer on or before the next succeeding rule-day, or at such other time as the court may direct; or if, upon an allowance by the court of exceptions for insufficiency to the answer of defend- ant, he shall fail to put in a full and complete answer thereto on the next succeeding rule-day, the bill may be takenpro con- fesso, and the cause be proceeded in ex parte; but, upon sus- taining exceptions for insufficiency, the order ^to confesso will extend only to the matters of the bill covered by the excep- tions; or in all these cases the plaintiff, if he requires any dis- covery or answer to enable him to obtain a proper decree, shall 1 Slawson V. Grand Street E. Co., Slawson v. Grand Street E. Co., 107 107 U. S. 649, 655, U. S. 649, 655. 2 Brown v. Piper, 91 U. S. 37, 44; 3 1 Smith's Ch. Pr. 137-151, 167-198; 1 Daniell, 573-700; 3 Daniell, 10-16. §§ 335, 336.] ANSWERS. 397 be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom unless upon filing his answer, or otherwise complying with sitch order as the court or a judge thereof may direct, as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause.' The process of at- tachment cannot issue against a defendant until after he has been duly served with a writ of subpoena and has made de- fault ;2 but after default the plaintiff is entitled to issue the writ without any order of the court or a judge, or an affidavit of any kind,' and it is served by the marshal of the district or his deputy, or by some other person especially appointed by the court for that purpose.* §335. Same — When nominal party need not appear. — " "Where no account, payment, conveyance or other direct re- lief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill unless the plaintiff specially requires him so to do by the prayer of the bill ; but he may appear and an- swer at his option ; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be en- titled to the costs of the proceedings against him, unless the court shall otherwise direct." ^ § 336. The form of an answer. — "An answer is headed by a title, the answer of A. B., the defendant, to the bill of com- plaint of C. D., complainant. If two or more defendants join in the same answer, it is entitled the joint and several answer, unless it be the answer of a man and his wife, in which case it is called the joint answer. The answer of an infant, or other 1 Equity Rules 7, 13, 17, 18, 34, 46, 31 Smith's Ch. Pr. 167; 1 Daniell, 64; Thompson v. Wooster, 114 U. S. 578; Equity Rule 18. 104-130; Suydam v. Beals, 4 McLean, < Equity Rule 15; U. S. R. S., sees. 13, Fed. Cas. No. 13,653; Hall t. Cont. 787, 923. Life Ins. Co., 30 Fed. R. 344. » Equity Rule 54 2 1 Smith's Ch. Pr. 186; 1 Daniell, 573; Equity Rules 7, 13, 13, 17, 18. 398 FEDERAL EQUITY PEOCEDUEE. [§ 336. person answering by guardian, or of an idiot or lunatic answer- ing by his committee, is so entitled." ^ " An answer usually begins by a reservation to the defendant of all advantage •which may be taken by exception to the bill, a form which has probably been intended to prevent a conclusion that the de- fendant, having submitted to answer the bill, admitted every^ thing which by his answer he did not expressly controvert, and especially such matters as he might have objected to by demurrer or plea. ' The answers to the several matters con- tained in the bill, together with such additional matter as may be necessary for the defendant to show to the court, either to qualify or add to the case made by the bill, or to state a new case on his own behalf, next follow, with a general denial of that combination which is usually charged in a bill. It is the universal practice to add by way of conclusion a general trav- erse or denial of all the matters charged in the bill. This is said to have obtained when the practice was for the defendant merely to set forth his case, without answering every clause in the bill. Though perhaps rather impertinent if the bill is otherwise fully answered, and it has been determined in that case to be unnecessary, it is still continued in practice. In the case of an infant the answer is expressed to be made by his guardian ; and the general saving at the beginning, together with the denial of the combination and the traverse at the con- clusion, common to all other answers, are omitted; for an in- fant is entitled to the benefit of every exception which can be taken to a bill without expressly making it ; he is considered as incapable of the combination charged in the bill, and his answer cannot be excepted to for insufficiency. The answer of an idiot or lunatic is expressed to be made by his committee as his guardian, or by the person appointed his guardian by the court to defend the suit. An answer must be signed by counsel, unless taken by commissioners in the country under the authority of a commission issued for the purpose, in which case the signature by counsel is not required, the commissioners being responsible for the propriety of its contents, as it is sup- posed to be taken by them from the mouth of the defendant, which in fact was formerly done." ^ 1 2 Daniell, 266. 2 Redesdale (6th Am. ed.), 373-376. "§§ 337, 338.] ANswEES. 399 § 337. Signature and oath of defendant. — The general rule requires that, before an answer can be filed, it should be signed by all the defendants whose answer it is, and they should swear to the truth of its contents ;i but the plaintiff may in his bill waive an answer under oath, or may require an answer under oath with regard to certain specified interrogatories,^ or he may •dispense with the oath and signature of all or any of the de- fendants.' Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed by any circuit court to take testi- mony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a state or territory,* or before any notaffjr public' The form of the oath administered to the defendant on putting in his answer is: "You swear (or solemnly affirm) that what is contained in this your answer (or plea and answer), as far as concerns your own act and deed, is true to your own knowledge, and that which relates to the act and deed of any other persons, you believe to be true." * § 338. Answer by a married woman. — "If a wife joins in one defense with the husband relative to her own property, it is considered the defense of the husband ; but under certain circumstances the wife is at liberty to put in a separate answer. A wife is entitled to put in an answer separate from her hus- band on three grounds: (1) If the husband and wife are made defendants in the right of the wife. (2) If the husband and wife live separate and apart. (3) If the husband is out of the jurisdiction. An order must be obtained for liberty to answer separate, which is granted upon a motion or petition as of course upon any of the grounds above mentioned, and not only extends to answering separate, but to plead or demur separate. If a husband files a bill against his wife, he admits her to be ^feme mle, and she is at liberty to put in her answer as such. If a married woman, who is under age, answers separate from her husband, she must answer by guardian. . . . When a hus- U Smith's Ch. Pr. 365; 2 DanieU, 2 Equity Rule 41. 269, 370 ; Bailey "Washing Machine Co, ' 1 Smith's Ch. Pr. 265, 266. V. Young, 12 Blatchf. 199, Fed. Gas. < Equity Rule 59. No. 75; Denison v. Bassford, 7 Paige = 19 U. S. Stat, at L., ch. 304, p. 206. Ch. 370. 6 3Daniell,270. 400 FEDEEAL EQUITY PEOCBDUEE. [§ 339. band and wife are defendants, the latter obtaining an order to answer separately from her husband is entitled to the full time allowed to answer, and is not bound by the previous time al- lowed to her husband for that purpose on behalf of himself and her. Where husband and wife are defendants, and by the , death of the husband a new interest arises to the wife, the suit becomes defective and a supplemental bill is necessary, and she is not bound by the answer put in during the coverture. . . . If a female defendant marries after the institution of a suit, and before answer, she-answers jointly with her husband, unless an order is obtained for the wife to answer separate, and if the husband neglects to answer, an attachment may issue against him."i § 339. Answer by an infant. — In all suits brought against infants, whom the law supposes to be incapable of understand- ing and managing their own affairs, the duty of watching over their interests devolves, in a considerable degree, upon the court. They defend by guardian, to be appointed by the court, who is usually the nearest relation not concerned, in point of interest, in the matter in question. And it is contrary to the most approved usage for the court to appoint for infant de- fendants, as their guardian ad litem, to defend for them, a per- son suggested by adversary counsel, not shown by the record to be related to them ; and it is error for the court to render a decree for plaintiffs, against infant defendants, upon admissions made by the guardian €id litem, in the answer filed by him, without proof of the allegations of the bill; infant defendants are incapable in law of admitting the facts upon which the plaintiff rests his claim to relief, and their guardian ad litem cannot make such admissions for them.''' " It was the duty of the court, where the bill on its face showed that the party whose interest was the principal one to be affected by the de- cree was both a minor and a. feme covert, and no one appeared for her in any manner to protect her interest, to have appointed a guardian ad litem for that purpose. If neither her husband nor he who is styled her guardian in the bill appeared to de- fend her interest, it was the more imperative that the court 1 1 Smith's Ch. Pr. 353, 353. 2 Bank of U. S. v. Ritchie, 8 Pet. 138, 144 § 339.] ANSWEES. 401 should have appointed some one to do it." ^ No proceeding can be had against an infant defendant after service of sub- poena, until a guardian ad litem has been appointed for him, to protect his interest.^ In the appointment of a guardian ad litem for infant defendants, the court should always select such per- son for that purpose as will be most likely to protect the rights of the infants; and where the father or other natural guardian and protector of the infants is himself the plaintiff in the suit, the next nearest relative of the infants is entitled to be heard on the selection of a proper guardian ad litem to defend the suit.' The court never selects a guardian ad litem for an infant defendant on the nomination «f the adverse party. It is fre- quently necessary for the guardian seriously to contest the plaintiff's claim. It is his duty in every case to ascertain from the infant and his friends, or from other proper sources of in- formation, what are the legal and equitable rights of his ward. And if a special answer is necessary or advisable, for the pur- pose of bringing the rights of the infant properly before the court, it is his duty to put in such an answer. If the infant is a mere nominal party, or has no defense against the plaintiff, and no equitable rights against his co-defendants, which render a special answer necessary, the general answer will "be suffi- cient. If the infant has any substantial rights which may be injuriously affected by the proceedings in the cause, or if the claim against him is of a doubtful character, it is also the duty of his guardian ad litem to attend before the court on the hear- ing, on the taking of testimony in the cause, on reference to the master, and on all proper occasions, to bring forward and protect the rights of his ward. And if the guardian neglects his duty, in consequence of which the rights of the infant are not properly attended to, or are sacrificed, he may be punished for his neglect. . He will also, in such case, be liable to the in- fant for all damages he may sustain. Although it is the duty of the court to protect the rights of infants, when they are properly before it, so that they may be seen and fairly under- stood, yet it is the special duty of the guardian ad litem to bring those rights directly under the consideration of the chan- 1 0'Hara v. McConnell, 93 U. S. 150, ' Grant v. Van Schoonhoven, 9 155. Paige Ch. 255. 2 Larkin v. Mann, 3 Paige Ch. 37. 36 402 FEDERAL EQUITY PEOCEDUEE. [§ 340. cellor for his decision thereon. This being the duty of the guardian, it would be improper, in any case, to permit the plaintiff to name the person who is to resist his claim against the infant.' § 340. Same — Method of appointing guardian ad litem. According to the English practice, there were three methods of appointing a guardian adUtem, namely: (1) After an infant was served with subpoena, if in a town cause, he and the party intended to be appointed guardian might voluntarily appear in court, either in term time or in vacation, and by his clerk in court move in writing for the appointment; and if upon ex- amination it appeared that the person offering himself was a proper person, the appointment was made. (2) If the infant did not appear, on affidavit of service of the subpoena, an at- tachment issued against him, which, however,^ was never in fact executed ; but counsel for the plaintiff moved, upon the attachment, for an order for a messenger to bring the infant into court, and when he was brought in, the court assigned him a guardian. (3) If the infant lived in the country, the court, upon an ex pa/rte motion or petition, made an order of course that a commission should issue for the appointment of a guardian ; and the commission issued, naming the commis- sioners, two of whom had the power to make the appointment, upon the infant being personally produced before them, and it appearing upon inquiry that the person proposed as guard- ian was a proper person ; and after making the appointment the commission was returned into court executed.^ A United States equity rule provides that : " Guardians ad Kteni to de- fend a suit may be appointed by the court, or any judge thereof, for infants or other persons who are under guardian- ship or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by theiv prochein ami; subject, however, to such orders as the court may direct for the protection of infants and other persons.'" When a guardian adlitem is to be appointed, eitljer the infant or plaintiff's counsel may make the application 1 Knickerbocker v. De Freest, 3 Pr. 254^259; Bank of U.S. v. Ritchie, Paige Ch. 305. 8 Pet. 138, 144 2 1 Daniell, 339-233; 1 Smith's Ch. 3 Equity Rule 87. |§ 341, 342.] ANSWERS. 403 -either in term time, at rules, or in vacation, by motion or pe- tition to the court, or a judge thereof, and upon an inquiry as to the proper person to appoint, the order will be made ; the order being only interlocutory and gran table of course, and necessary to speed the cause, it may be made in vacation as well as in terra time.' § 341. Answer of idiots and lunatics. — If a person found a lunatic by inquisition is made a defendant to a bill, his com- mittee must be made a co-defendant jointly with him, and he answers by such committee, and no order is necessary for the j)urpose ; but if the idiot or lijnatic has no committee, or his committee has an adverse interest to that of the person whose estate is intrusted to his care, an order will be made appointing a guardian ad litem to defend the suit, and the application may be made by either the plaintiff, or on behalf of the lunatic de- fendant.^ If a person is by age or infirmities reduced to a second infancy, the court will appoint a guardian ad litem to defend the suit against him.' The United States equity rule which •authorizes the court or any judge thereof to appoint a guardian ad litem, for infants, embraces all persons who, from any cause whatever, are incapable of defending suits against them, and places the rights and interests of all such persons fully under the protection and control of the court.* § 342. Answer of corporation. — " "Where a suit is instituted -against a corporation sole, he must appear and defend, and be proceeded against in the same manner as if he were a pri- Tate individual. But where corporations aggregate are sued in their corporate capacity, they must appear by attorney, and answer under the common seal of the corporation; but if those of whom the corporation consists be charged as private individ- uals, they must answer upon oath." A corporation aggregate .cannot be attached, but is compelled to appear and answer by writs of disl/ringas and sequestration.' 1 Equity Rules 1-5; TJ. S. R. S., sec. sRedesdale (6th Am. ed.), 124; 1 '918; 1 Daniell, 231. Daniell, 248; Wilson v. Grace, 14 Ves. n Smith's Ch. Pr. 359, 260; 1 Dan- 172; Re Barker, 2 Johns. Ch. 233; 'iell, 219, 220; Wilson v. Graoe, 14 Markle v. Markle, 4 Johns. Ch. 168. Ves. 172; Howlett v. Wilbraham, 5 ^ Equity Rule 87; O'Hara v. Mc Hadd. 423; Copous v. Kauflfman, 3 Connell, 93 U. S. 150. Edw. Ch. 370; Montgomery v. Mont- 6 i Daniell, 189, 190. .gomery, 3 Barb. Ch. 132. 404 FEDEEAL EQUITY PEOCEDUEE. [§ 343. § 343. Amending answer and filing supplemental answers. By the ancient practice of the High. Court of Chancery of Eng- land, where there was in the answer of a defendant a clear mis- take in stating a fact or admitting a fact stated in the plaintiff's bill, resulting from inadvertence or misapprehension or igno- rance of the facts or the misleading conduct of the plaintiff, the defendant was permitted to correct such mistake by amend- ing his answer ; and the mistake was corrected by taking the first answer off the file and filing a new answer in which the facts were correctly stated, or the improper admission omitted or qualified, as the truth required ; in such case the first answer was withdrawn from the files and taken out of court and ceased to be a part of the record in the cause, and was, for all purposes of the suit, deemed to be absolutely destroyed, so that it could not be used to contradict or qualify or explain the statements of the defendant in his new answer. The inequitable advan- tage which the defendant gained over the plaintiff by such a practice, and the incentive to perjury which resulted from per- mitting a defendant to withdraw from the files his sworn an- swer and substituting a new one in its stead, led Lord Thurlow to adopt a new and better rule by which the first answer re- mained unaltered on file as a part of the record in the cause, and the defendant was, for the purpose of correcting the mis- take, permitted to file a supplemental or additional answer, thereby leaving to the parties the effect of what had been sworn to by the defendant in his original answer with the cor- rection and explanation given in his supplemental answer; and this rule became the settled course of procedure in courts of equity in England and the United States, and it has been fol- lowed in all cases where the object has been (1) to correct a mistake in an answer as to the statement of any matter of fact, or (2) to suppress or qualify the incorrect admission of a fact stated by the plaintiff in his- bill, or (3) to allege any new facts which existed at the time the answer was filed, but which were not then known to the defendant, or (4) to allege any new mat- ters of fact which had occurred or arisen after the answer was filed. The new practice requires that, when a supplemental answer is filed, the old answer must remain on file as it was originally put in ; and the old answer and the new one are deemed one record, and the two taken together constitute the § 343.] ANSWEES. 405 answer of tlie defendant in the cause. The rule is based uppn considerations of public policy, and to prevent injustice to the plaintiff by allowing the defendant to suppress his sworn ad- missions of the allegations of the bill which constitute the basis of the claim to relief; the court, by having before it all of the sworn statements of the defendant in answering the bill, is the better enabled to determine the weight and value of the answer as evidence, and do full and complete justice to the parties ; and carelessness and indifference in making answers, and the motive to fabricate false defenses, are diminished.^ Chancellor Walworth stated the practice as follows: "The practice of amending the answer of a def^dant which prevailed previous to the time of Lord Thurlow has been discontinued in this country as well as in England. The modern practice is upon a proper showing to the court to permit the defendant to file a supplemental answer, thus giving the plaintiff the benefit of the original answer, with the explanations or denials contained in the supplemental answer. Under such an answer, if the defend- ant by mistake or misapprehension of the facts of his case, or of his rights, has made an admission in his original answer which is inconsistent with the truth, he will have an oppor- tunity by proofs to show the fact was otherwise, and thus re- lieve himself from the consequences of his mistake."^ The power of the court to allow amendments in furtherance of jus- tice at any time before a final decree is unquestionable. They are always in the discretion of the court ; but the exercise of that discretion must be governed by those general principles 1 Colder v. Bank of England, 10 Ely v. James, Bunb. 295; Gains Ves.284; Wells te. Wood, 10 Ves. 401 ; borough v. Gifford, 3 P. Wms. 434; Jennings v. Merton College, 8 Ves. Foster v. Foster, 3 Bro. 619; Patter- 79; Curling v. Marquis Townshend, son v. Slaughter, Dick. 385; Wharton 19 Ves. 638; Levesey V.Wilson, 1 Ves. v. Wharton, 3 Atk. 394; Bower v. &Bea.l49; Strange v. Collins, 3 Ves. Cross, 4 Johns. Ch. 375; Dagley v. & Bea. 163; Edwards v. MoLeary, 3 Crump, Dick. 35; Smith v. Babcock, Ves. & Bea. 356; Jackson v. Parish, 3 Sumn. 583, Fed. Cas. No. 13,008; 1 1 Sim. 505; Greenwood v. Atkinson, Smith's Ch. Pr. 369, 370; 3 Daniell, 4 Sim. 54; Taylor v. Obee, 3 Price, 337, 343; Hughes v. Bloomer, 9 Paige 83; Ridley v. Obee, Wightw. 33; Mur- Ch. 369; Swallow v. Day, 2 Coll. Ch. dock's Case, 3 Bland, 361; Tedswell 133; Talmage v. Pell, 9 Paige Ch. 413. V. Bowyer, 7 Sim. 64; White v. Sayer, 2 Hughes v. Bloomer, 9 Paige Cli. 5 Sim. 266; Chute v. Dacre, 1 Ch. Cas. 369. 29; Mullins v. Simmonds, Bunb. 186; ■406 FEDERAL EQUITY PEOOEDUEE, [§ 3M> of equity by which the proceedings in courts of equity are reg- ulated.i In matters, of form, or mistakes of dates, or verbal in- accuracies, courts of equity are very indulgent in allowing amendments. But when application is made to amend an an- swer, in material facts, or to change essentially the grounds taken in the original answer, courts of equity are exceedingly slow and reluctant in acceding to it. To support such an ap- plication they require very cogent circumstances, and such as. repel the notion of any attempt of the party to evade the jus- tice of the cause, or to set up new and ingeniously contrived defenses or subterfuges. Where the object is to let in new facts and defenses wholly dependent upon parol evidence, the reluct- ance of the court is greatly increased ; since it has a natural tendency to encourage carelessness and indifference in making answers, and leaves much room open for the introduction of testimony manufactured for the occasion. But where the new facts sought to be introduced are written papers or documents which have been omitted by accident or mistake, there the same reason does not apply in its full force ; for such papers and documents cannot be made to speak a different language from that which originally belonged to them. The whole mat- ter rests in the sound discretion of the court." § 344. Same — United States equity rules.— Justice Story, in an elaborate opinion in a case ' in the circuit court, discussed the English cases, and fully adopted and followed the practice established by Lord Thurlow, by which supplemental answers were substituted for amendments ; and the opinion of Justice Story was followed by the promulgation of an equity rule, which is as follows: "After an answer is put in, it maybe amended, as of course, in any matter of form, or by filling up a blank, or reference to a document, or other small matter, and be resworn at any time before a replication is put in, or the cause is set doT^n for a hearing upon bill and answer. But after replication or such setting down for a hearing, it shall not be amended in any material matters, as by adding 1 Fulton Bank V. Beach, 1 Paige Ch. 'Smith v. Babcook, 8 Sumn. 683, 439. Fed. Gas. No. 13,008. 2 Smith V. Baboook, 3 Sumn. 883, Fed. Caa No. 13,008. §§ 345, 346.] ANSWEBS. 407 new facts or defenses, or qualifying or altering the original statements, except by special leave of the court, or of a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported, if required, by aifidavit ; and in every case where leave is so granted, the court or the judge grant- ing the same may, in his discretion, require that the same be separately engrossed, and added as a distinct amendment to the original answer, so as to be distinguishable therefrom." ' This equity rule, though using the word " amendment " in- stead of the words " supplemental answer," embodies the prin- ciple of Lord Thurlow's rule, leaving it, however, to the dis- cretion of the court or judge to«equire a separate engrossment. § 345. Requisites of application to amend an answer, or file a supplemental answer. — Under the English practice, if the defendant desired to obtain leave to file a supplemental answer to correct or alter the statements of his original answer, he was required to state in his application specifically what he wished to put upon the record by the new answer; ^ and it was required that the aflBdavit in support of the application should state " that the defendant, when he put in his answer, did not know the circumstances upon which he now applies, or any other circumstances upon which he ought to have stated the fact otherwise." ' It was also necessary that the opposite party should have notice of the application.* The application is addressed to the discretion of the court; and a defendant making the application must make out such a case that it shall appear due to general justice to permit the issue to be altered.' § 346. When answer may toe amended, or supplemental answer filed. — If upon the hearing of a cause it appears that the defendant has not put in issue facts which he ought to have put in issue, and which must necessarily be in issue to enable the court to determine the merits of the case, the defendant will be permitted to state those facts, by amending his answer or by filing a supplemental answer, and this may be done after 1 Equity Rule 60. wards v. , McLeary, 3 Ves. & Bea,. 2 Curling v. Marquis Townshend, 256. 19 Ves. 638. ^ 1 Smith's Ch. Pr. 370. 3 Wells V. Wood, 10 Ves. 401; Ed- 5 Wells v. Wood, 10 Ves. 401. 408 FEDEEAL EQUITY PEOCEDUEE. [§§ 347, 348. the court has beard the cause and before decree.^ A federal statute provides that " no summons, writ, declaration, return, process, judgment, or other proceeding in any civil cause in any of the courts of the United States, shall be abated, arrested, quashed or reversed for any defect or want of form; but the said courts respectively shall proceed and give Judgment ac- cording as the right of the cause and matters in law shall appear to it, without regard to any such defects or want of form in such writ or declaration, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and the said courts shall amend every such defect and want of form, other than those which the party demurring expresses ; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall in its dis- cretion, and by its rules, prescribe." ^ The power of the court to permit at any time either of the parties to a suit in equity to amend their pleadings is expressly conferred by this statute.' § 347. Supplemental answer to amended bill. — An equity rule provides that, in every case where an amendment to a bill " shall be made after answer filed, the defendant shall put in a new or supplemental answer on or before the next succeeding rule-day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and upon his default the like proceedings may be had as in case of an omission to put in an answer." ^ And when the plaintiff amends his bill after answer filed, it is irregular and improper to file a replication to the first answer before the time for answering the amendment has expired.* § 348. A further answer upon sustaining exceptions for insufficiency. — An equity rule provides that: "If at the hear- ing " (of exceptions for insufficiency) " the exceptions shall be 'Eedesdale (6th Am. ed.), 390; 343, Fed. Cas. No. 6,898; American Cooper's Eq. PL 389 ; Arnett v. Welch, Steel & Wire Co. v. Wire Drawers' & 46 N. J. Eq. 543; United Railroad & Die Makers' Unions, 90 Fed. R. 599, Canal Co. v. Long Dock Co., 41 N. J. 600; Neal v. Neal, 76 U. S.,1, 12; Eq. 407; Sawyer v. Campbell, 130 111. Hardin v. Boyd, 113 U. S. 761. 186. 4 Equity Rule 46. 2 1 U. S. Stat, at L., cK 20, sec. 32, s Richardson v. Richardson, 5 Paige p. 91; U. S. E. 8., sec. 945. Ch. 58. 8 Hunt V. Rousmaniere, 2 Mason, § 349.] AnswEES. 409 allowed, the defendant shall be bound to put in a full and com- plete answer thereto on the next succeeding rule-day; other- wise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions ; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court or of a judge thereof, upon his putting in such answer, and complying with such other terms as the court or judge may direct." ' § 349. Taking answers off the file. — If an answer is form- ally defective, it may, upon the motion of the plaintiff, be taken off the file. If an answer fails to state that it is an answer to the bill of complaint, or if it fails to state correctly the names of the plaintiffs, or if the answer is not signed and sworn to by all the defendants whose answer it is, it will, upon motion, be taken off the file.^ A joint and several answer of three per- sons, sworn to by two only, may be taken off the file.' An an- swer cannot be taken off the file because the defendant is in contempt in refusing to obey an order of the court.* 1 Equity Rule 64 Young, 13 Blatohf. 199, Fed. Cas. 2 1 Smith's Ch. Pr. 267, 268. No. 75. 'Bailey Washing Machine Co. v. * Hovey v. Elliott, 167 U. S. 409, 447. OHAPTEE XY. PEOCEEDINGS TO BE TAKEN BY PLAINTIFF UPON AN ANSWER FILED. § 350. Proceedings by plaintiff upon answer of defendant filed. 351. Samg — Due order of proceeding § 350. Proceedings by plaintiff upon answer of defendant filed. — When the defendant's answer is filed, the plaintiff's counsel has until the- next succeeding rule-day to examine and consider it, and to determine what course should be pursued in relation to it; and he may take either one of four steps in re- gard to the answer, according as it may require, namely: 1. He may file exceptions to the answer either (1) for insufficiency, or (2) for scandal and impertinence, or (3) for both causes at the same time.^ 2. He may amend his bill for the purpose of putting in issue new matter set up in the answer, or for more fully developing the circumstances of such new matter.^ 3. He may set the cause down for hearing on bill and answer.' i. He may file the general replication to the answer and thereby put the cause at issue.* § 351. Same — Due order of proceeding. — In proceeding upon a defendant's answer, there is an order in point of time in taking the various steps which must be observed by plaint- iff, or he will waive some of his rights. The first step in the series of proceedings by the plaintiff upon defendant's answer is to file exceptions for insufficiency and for scandal and im- pertinence. Both classes of exceptions may be filed at the same time ; but the right to except may be waived by the fol- lowing proceedings : (1) By obtaining an order to amend the bill, unless the order is expressed to be without prejudice to the right to except;* (2) by setting the cause down for final 1 Equity Rules 27, 61. Banks v. Manchester, 138 U. S. 244, 2 Equity Rule 45; ante, § 149. 254. 8 Equity Rules 41, 60; Reynolds v. < Equity Rule 66. Crawfordsville Bank, 113 U. S. 409; 6 Dixon v. Redmond, 3 Sch. & Lef. § 351.J PEOCEEDINGS BY PLAINTIFF ON ANSWEE. 411 hearing on bill and answer, for by so setting the cause down for hearing the plaintiff asserts that the admissions of the an- swer are sufficient to entitle him to a decree, without proof or further answer;^ (8) by filing the general replication to the answer;' (4) by failing to file such exceptioQS on the rule-day next succeeding that upon which the answer is filed.' If the plaintiff sets the cause down for hearing on bill and answer, he waives his right to deny and disprove the answer.* 515; De la Torre v. Bernales, 4 Mod. 21 Smith's Ch. Pr. 279, 380; 2 Dan- 896; Jacob v. Hall, 12 Ves. 458. iell, 308. 1 See ante, § 837, and authorities 3 Equity Rule 61. there cited. < Pierce v. Brown, 7 Wall. 205; Mills V. Pittman, 1 Paige Ch. 489. OHAPTEE XVI. EXCEPTIONS TO ANSWERS. § 353. Two classes of exceptions to answers. (a) Exceptions fob Insuffioienct. 353. Definition of exceptions for insufiioienoy. 351 When exceptions for insuffi- ciency will be sustained. 355. Exceptions to answers not under oath. 356. Form and requisites of ex- ceptions for insufficiency. 357. When exceptions for insuffi- ciency must be filed. § 358. Procedure on exceptions for insufficiency. 359. Same — Further answer when exceptions allowed. 360. Same — Costs upon exceptions. (b) Exceptions for Scandal and Impertinence. 361. Definition of scandal and im- pertinence. 363.- Each exception must be sup- ported in toto. 363. Filing the exceptions and pro- cedure thereon. §352. Two classes of exceptions to answers. — There are two classes of exceptions to answers in equity, viz. : (1) Excep- tions for insufficiency ; and (2) exceptions for scandal and im- pertinence. The functions and office of the two classes of exceptions are widely different; the office of the first class being to compel full discovery, and the office of the second class being to expunge from the answer all purely irrelevant and scandalous matter. Under the English practice, the plaint- iff could not file contemporaneously exceptions for insufficiency and impertinence ; but, if he desired to except for both imperti- nence and insufficiency, he must first file exceptions for im- pertinence, and have them referred to a master, and secure his report thereon, and then file his exceptions for insufficiency; and if he filed exceptions for insufficiency before securing the master's report on the exceptions for impertinence, the latter were thereby waived. But a reference for scandal could be made at any time.^ The English practice has, however, been materially changed by the United States equity rules.* »2DanielI,297. 2 Equity Rules 36, 37, 61, 63, 64, 65. §§ 353-355.] EXCEPTIONS to answees. 413 {a) Exceptions fok Insufficiency. §363. Definition of exceptions for insufficiency. — Excep- tions to an answer in equity for insufficiency are written alle- gations filed in the cause by the plaintiff, in which he alleges that the defendant has not fully answered all the material alle- gations, charges and interrogatories of the bill; and stating such parts of the bill as the plaintiff conceives are not fully answered, and pointing out specifically in what respects the answer is insufficient, and wherein it fails to give the material discovery required by the bill, and praying that the defendant may in such respects be compelled to put in a full answer to the bill. The object of such exceptions is not to question the legal sufficiency of the answer as a defense in bar of the relief sought by the bill, but to deny that the defendant has given all the material discovery required by the bill, and to compel a further and full discovery and admission of facts to be used as evidence in establishing plaintiff's right to a decree.' § 354. When exceptions for insufficiency will be sustained. All the writers upon the subject of equity pleading, and all the adjudicated cases upon the subject, lay down the principle dis- tinctly, that exceptions to an answer for insufficiency cannot be sustained, unless there is some material allegation, charge or interrogatory in the plaintiff's bill which has not been fully answered by the defendant; and where new matter, not re- sponsive to the bill, is stated in the answer, if such new matter is wholly irrelevant and forms no sufficient defense to the case for relief made by the bill, the plaintiff may except to the an- swer for impertinence; but such matter cannot be made the subject of exceptions for insufficiency.^ §355. Exceptions to answers not under oatli. — When a corporation is sued in equity, the law, on account of the very necessities of the case, dispenses with an answer under oath, and requires the defendant corporation to answer under its common seal; and United States equity rule 41 authorizes 1 Redesdale (6th Am. ed.), 373 ; Coop- Buloid v. Miller, 4 Paige, 473 ; Brooks er's Eq. PI. 319; StaflEord v. Brown, 4 v. Byam, 1 Story, 396, Fed. Gas. No. Paige Ch. 88. 1,947; Eedesdale (6th Am. ed.), 376; 2 StaflEord v. Brown, 4 Paige Ch. 88; Cooper's Eq. PL 319. 414 FEDERAL EQUITY PEOCEDUEE. [§ 356. the plaintiff to waive an answer under oath from an individual defendant, and provides that if the defendant answers under oath, such answer shall not be evidence in his favor; but in both classes of cases the plaintiff is entitled to a full answer from the defendant; and if the defendant omits to answer any material allegation, charge or interrogatory contained in the bill, the plaintiff may except to such answer for insuflJciency, and compel a full and perfect answer, as in other cases. The fact that a corporation, being an ideal person, must answer under its common seal, or the waiver by plaintiff of an answer under oath, does not deprive the plaintiff of his right to a full answer and a full discovery from the defendant upon every material point in the bill. The defendant is bound by the ad- missions in his answer, though put in without oath, and the plaintiff may avail himself of any admissions in such answer that tend to establish his case. The plaintiff's object in waiv- ing an answer under oath, and the only effect of such waiver, is to deprive the defendant of the advantage of his answer as evidence for himself.^ § 356. Form and requisites of exceptions for insnfBciency. Exceptions to an answer for insufficiency should be entitled in the cause and should state in a concise and specific manner the points which defendant has failed to answer; and they should state, in the very terms thereof, the allegations and charges of the bill, and the interrogatories, if any, based thereon, which it is alleged are not fully answered, and should in like manner state in full, and in the very terms thereof, that part of the an- swer which is addressed to such allegations, charges and inter- rogatories of the bill, so that the court, without searching the bill and answer, will be able to see the grounds of the excep- tions, and ascertain if they are well founded, and decide upon them and make the proper order.^ The exceptions should con- 1 Kittridge v. Claremount Bank, 1 v. Mayor, 31 Fed. R 313; Colgate v. Woodb. & M. 344, Fed. Cas. No. 7,859; Compagnie, 33 Fed. R. 83; Reed v. Whittmore v. Patton, 81 Fed. R. 537; Cumberland Mut. Ins. Co., 36 N. J. National Hollow Brake Beam Co. v. Eq. 393; Manley v. Miokle, 55 N. J. Interchangeable Brake Beam Co., 83 Eq. 567; ante, § 118, where this sub- Fed. R. 36; Uhlmann v. Arnholt & jeot is fully discussed. Schaeffer Brewing Co., 41 Fed. R. '' Brooks v. Byam, 1 Story, 396, Fed. 369; Gamewell Fire Alarm Tel. Co. Cas. No. 1,947. §§ 357, 358.] EXCEPTIONS to answers. 415 elude with a prayer that the defendant be compelled to put in a full and sufficient answer/ and should be signed by counsel''' and filed with the clerk ' and entered on the order book.* § 357. When exceptions for insufficiency must be filed. — An equity rule provides that: "After an answer is filed on any rule-day, the plaintift' shall be allowed until the next succeed- ing rule-day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be al- lowed for the purpose, upon cause shown to the court, or a judge thereof; and if no exceptions shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient." * Where the defendant pleads or diemurs to any part of the dis- covery sought by the bill, and answers also, if the plaintiff files exceptions to the answer for insufficiency before the plea or demurrer has been argued, he thereby admits the plea or de- murrer to be good ; but if the plea or demurrer is only to the relief prayed for by the bill, or to some part of it, and not to any part of the discovery, the plaintiff may file exceptions for insufficiency to the answer before the plea or demurrer is argued, without admitting it to be good.* When upon argu- ment of a plea it is ordered to stand for an answer, the plaint- iff should have inserted in the order the words, " with liberty to the plaintiff to except," or the order may have the effect to establish the plea as a sufficient answer to so much of the bill as it covers.' § 358. Procedure on exceptions for insufficiency. — Under the former English practice, exceptions for insufficiency were referred to a master; * but, under the United States equity rules, exceptions for insufficiency are set down for a hearing before a judge of the court in the first instance, and are never referred to a master.' An equity rule provides: "Where exceptions 1 Curtiss, Eq. Precedents. Reyner, 1 Vem. 344; Sidney v. Perry, 2 1 Smith's Ch. Pr. 81. 2 Dick. 603. 8 Equity Rule 61. '' Orcutt v. Orms, 3 Paige Cli. 459; * Equity Rule 4 Maitland v. Wilson, 3 Atk. 815 ; Sellon 5 Equity Rule 61. v. Lewen, 3 P. Wms. 239 ; Coke v. Wil- ^Ante, § 308; Redesdale (6th Am. cocks, Mosel. 73; ante, § 397. ed.), 378; Siflfkin v. Manning, 9 Paige « 3 Daniell, 395-301. Ch. 233; Boyd v. Mills, 13 Ves. 85; 'Equity Rule 63; La Vega v. Laps- London Assurance Co. v. East India ley, 1 Woods, 438, Fed. Cas. No. 8,133. Co., 3 P. Wms. 335, 337; Darnell v. 416 FEDEEAL EQUITY PEOCEDUEE. ' [§ 3S9. shall be filed to the answer for insufficiency, within the period prescribed by these rules, if the defendant shall not submit to the same, and file an amended answer on the next succeedine: rule-day, the plaintiff shall forthwith set them down for a hear- ing on the next succeeding rule-day thereafter, before a judge of the court, and shall enter, as of course, in the order book, an order for that purpose ; and if he shall not so set down the same for a hearing, the exceptions shall be deemedabandoned, and the answer shall be deemed sufficient ; provided, however, that the court, or any judge thereof, may, for good cause shown, en- large the time for filing exceptions, or for answering the same, in his discretion, upon such terms as he may deem reasonable." • Under this rule the plaintiff is allowed, from one rule-day to another to file his exceptions to an answer ; and the exceptions being filed, the defendant is allowed to the next succeeding rule-day to submit to the exceptions, and file an amended an- swer, and if he fails to do so within that time the plaintiff must on the next succeeding rule-day set down the exceptions for a hearing before a judge of the court on the next rule-day follow- ing. The plaintiff is only allowed to set down the exceptions for a hearing on a rule-day, to be heard before a judge at the next succeeding rule-day. The exceptions cannot be referred to a master.* §359. Same — Further answer when exceptions allowed. " If, at the hearing, the exceptions shall be allowed, the defend- ant shall be bound to put in a full and complete answer thereto on the next succeeding rule-day; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, or a judge thereof, upon his putting in such answer and complying with such other terms as the court or judge may direct." ' 1 Equity Rule 63. » Equity Rule 64. 2 La "Vega v. Lapsley, 1 Woods, 428, Fed. Cas. Na 8,131, §§ 360-362.] EXCEPTIONS to answers. 417 § 360. Same — Costs upon exceptions. — "If, upon argument, the plainti3's exceptions to the answer shall be overruled, or the answer shall be adjudged insufficient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions." ^ (b) Exceptions eoe Scandal and Impeetinence. § 361. Definition of scandal and impertinence. — Scandal is anything alleged in a bill, answer or other pleading which is unbecoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause, or which bears cruelly upon the moral character of an individual ; but nothing relevant Avill be deemed scandalous.^ Impertinence is where the plead- ings are stuffed with long recitals, or with long digressions of matters of fact, which are altogether unnecessary and totally immaterial to the poin]t in question.' Facts not material to the decision are impertinent, and if reproachful are scandalous.* The test of impertinence is this: If the matter of the answer is relevant, that is, if it can have any influence whatever in the decision of the suit either as to the subject-matter of the con- troversy, the particular relief granted, or as to the costs, it is not impertinent.* § 362. Each exception must be supported in toto. — Each exception for impertinence must be supported in toto, or it must fail altogether; if any part of the matter alleged to be impertinent is not so, the whole exception fails, though some part of the matter complained of is impertinent. If an ex- ception for impertinence embraces matters of the answer which are responsive to allegations in the plaintiff's bill as well as matters which are impertinent, the whole exception must be disallowed ; and when an exception for impertinence embraces matters which are proper and material to the defendant's de- 1 Equity Rule 65. * Wood v. Morrell, 1 Johns. Ch. 103. 21 Smith's Ch. Pr. 567; Eedesdale 6 Van Eenssellear v. Brice, 4 Paige (6th Am. ed.), 371,373; 1 Daniell, 453. Cli. 174 3 1 Smith's Ch. Pr. 567; 1 Daniell, 454. 27 418 FEDERAL EQUITY PEOOEDUEE. [§ 363. fense, the exception will be overruled. An exception for im- pertinence cannot be allowed in part only.^ The court will not expunge matter alleged to be impertinent, unless it clearly appears that it is so, for the reason that if improperly done the error would be irremediable as to the party affected by it, but not so as to the opposite party, who can always take ad- vantage of impertinence at the hearing.^ § 363. Filing the exceptions and procedure thereon.— Exceptions for scandal or impertinence must be taken in writ- ing, describing the particular passages of the answer which are considered to be scandalous or impertinent; they must be filed on or before the next rule-day after the answer is filed, and re- ferred to a master, who should examine and report upon them on or before the next succeeding rule-day.' The master re- ports by certificate, stating that the matter is or is not scan- dalous or impertinent; and either party may bring the matter on for argument before the court, by filing exceptions in the clerk's office to the report of the master,* which exceptions to the report should be filed within one month from the time of filing the report.' When the master certifies that the answer is scandalous or impertinent, and no exceptions are filed to his report within the time allowed by the rules, the master then, without any further order upon the subject, upon notice to the counsel or solicitors of the parties, expunges from the answer the objectionable matter, by drawing a pen line through it, and writing his initials opposite, and then certifies to the court his action, and returns the answer to the files.* 1 Tench v. Cheese, 1 Beav. 571; ' Equity Rule 27. Curtis V. Masters, 11 Paige Ch. 15; ^2 Daniell, 317, 328; 1 DanieU, 457, Baloom v. Life Ins. Co., 11 J'aige Ch. 458; 1 Smith's Ch. Pr. 572, 57a 454 6 Equity Rule 83. 2 Davis V. Cripp, 2 Y. & ColL Ch, 6 1 DanieU, 458, 459; 1 Smith's Ch. 443. Pr. 572. CHAPTER XVII. EEPLICATIONS. 364 Lord Redesdale's definition and history of the replica- tion. 365. Special replications prohib- ited by United States equity rule. 866. The form of a general replica- tion. 367. The office of the general rep- lication. § 868. Same — When replication to answer must be filed. 369. When replication to plea must be filed. 370. Filing replication nuno pro « tunc. 871. Replications when there are several answers. § 364:. lord Redesdale's definition and liistory of the rep- lication. — " A replication is the plaintiff's answer or reply to the defendant's plea or answer. Formerly, if the defendant by his plea or answer offered new matter, the plaintiff replied specially ; otherwise the replication was merely a general de- nial of the truth of the plea or answer, and of the sufficiency ■of the matter alleged in it to bar the plaintiff's suit, and an as- sertion of the truth and sufficiency of the bill. The conse- quence of a special replication was a rejoinder, by which the defendant asserted the truth and sufficiency of his answer, and traversed every material part of the replication. If the par- ties were not then at issue by reason of some new matter dis- -closed in the rejoinder which required an answer, the plaintiff might surrejoin to the rejoinder, and the defendant might in like manner ad-surrejoin, or rebut, to the rejoinder. The incon- venience, delay and unnecessary length of pleading arising from these various allegations on each side caused an altera tion in the practice. Special replications, with all their conse- ■quences, are now out of use, and the plaintiff is to be relieved a,ocording to the form of the bill, whatever new matters may have been introduced by the defendant's plea or answer. But if the plaintiff conceives, from any matter offered by defend- ant's plea or answer, that his bill is not properly adapted to his case, he may obtain leave to amend the bill, and suit it to 420 , FEDEEAL EQUITY PKOOEDUEE. [§ 365. his case, as he shall be advised. To this amended bill the de- fendant may make such defense as he shall think proper, whether required by the plaintiff to answer it or not. Accord- ing to the present course of the court, although rejoinders are disused, yet the plaintiff, after replication, must serve upon the defendant a subpoena requiring him to rejoin, unless he will appear gratis. The effect of this process is merely to. put the cause completely at issue between the parties. For now, im- mediately after the defendant has appeared to rejoin gratis, or after the return of a subpoena to rejoin served on the de- fendant, and which by order obtained of course is now usually made returnable immediately, and served on the defendant's clerk in court, the parties may proceed to the examination of witnesses to support the facts alleged by the pleadings on each side. Where by mistake a replication has not been filed, and yet witnesses have been examined, the court has permitted the replication to be filed nunc ;pro time." ^ § 365. Special replications prohibited by United States equity rule. — A United States equity rule, promulgated March 2, 1842, is as follows : " No special replication to anyanswer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without payment of costs, as the court, or a judge thereof, may in his discretion direct."* This rule is merely declaratory of the rule of practice which already existed and had for a long time prior to the promulga- tion of the rule, and applies to pleas as well as to answers.' Lord Eedesdale stated the rule as follows : " Special replica- tions, with all their consequences, are now out of use, and the plaintiff is to be relieved according to the form of the bill, what- ever new matter may have been introduced by the defendant's plea or answer. But if the plaintiff conceives from any mat- ter offered by the defendant's plea or answer that his bill is not properly adapted to his case, he may obtain leave to 1 Eedesdale (6th Am. ed.), 383, 383, dence & Fishkill R. Co., 10 Fed. R. 384. 334; Green v. Bogue, 158 U. S. 478, 2 Equity Rule 45. 500; Pearce v. Rice, 143 U. S. 28; » Redesdale (6th Am. ed.), 383, 388; Horn v. Detroit Dry Dook Co., 15(> Rhode Island v. Massachusetts, 14 U. S. 635. Pet. 310; Masou v. Hartford, Provi- §§ 366, 367.] EEPLicATioNS. 421 amend the bill and suit it to his case, as he shall be advised." * And the various provisions of the equity rules in regard to the allowance of amendment of bills after pleas filed, and reply- ing to and taking issue upon pleas, leave no doubt as to the intention of the supreme court to prohibit special replications to pleas.^ § 366. The form of a general replication. — The form of a general replication is: The replication of A. B., the plaintiff, to the answer (or plea) of 0. D., the defendant. This repliant, saving and reserving unto himself all and all manner of advan- tage of exception to the manifold, insufficiencies of said answer (or plea), for replication thereunto saith that he will aver and prove his said bill to be true, certain .and sufficient in the law to be answered unto, and that the said answer (or plea) of the said defendant is uncertain, untrue and insufficient to be re- plied unto by this repliant ; without this, that any other mat- ter or thing whatsoever in the said answer (or plea) contained, material or effectual to be replied unto, confessed and avoided, traversed or denied, is true ; all which matters and things this repliant is, and will be, ready to aver and prove as this honor- able court shall direct, and humbly prays as in and by his said bill he hath already prayed. § 367. The oflSce of the general replication. — The office of the general replication is to close the pleadings, put the cause completely at issue between the parties, and put it in readi- ness for the proofs.' The general replication denies every allegation in the answer which is not responsive to the bill, but it does not deprive the plaintiff of the benefit of the ad- missions in the answer of any of the allegations and charges of the bill;* for, when the plaintiff takes issue upon the answer, what is confessed and admitted by it need not be proved, but if the defendant admits the facts stated in the bill and insists upon other facts in avoidance, he must prove the facts so in- 1 Redesdale (6th Am. ed.), 382, 383. ington, Alexandria & Georgetown E. 2 l^quity Rules 39, 30, 33, 35, 38. Co. v. Bradley, 10 Wall. 299; Equity 3 Redesdale (6th Am. ed.), 383, ^84; Rule 66. Pierce v. Brown, 7 Wall. 205; Mills < Humes t. Scruggs, 94 U. S. 23; V. Pittman, 1 Paige, 490, 401; Wash- Cavender v. Cavender, 8 Fed. R. 641. 422 FEDERAL EQUITY PEOCEDUKE. [§ 368. sisted on in defense.^ If the plaintiff wishes to prove any fact alleged in the bill and and not admitted by the answer, or if he wishes to disprove any allegations in the answer, he must file the general replication, and if he does not he will not be entitled to produce any evidence in the cause, and the answer will be taken as true.^ § 368. Same — When replication to answer must be filed. The office of the replication, the time when it shall be filed, and the consequences of omitting or refusing to file it, are de- fined and declared by the United States equity rules, one of which is as follows : " Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed suffi- cient, the plaintiff shall file the general replication thereto on or before the next succeeding rule-day thereafter ; and in all cases where the general replication is filed, the cause shall be deemed, to all intents and purposes, at issue, without any re- joinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course^ for a dismissal of the suit; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon mo- tion, for cause shown, allow a replication to. be filed nunc pro tune, the plaintiff submitting to speed the cause, and to such other terms as may be directed." ' Under the rules, where no exceptions for insufficiency are filed to the answer, the plaint- iff has sixty days from the filing of answer in which to file the general replication. It is provided by one of the rules that when an answer is filed on a rule-day the plaintiff shall have until the next succeeding rule-day to determine whether or not he will file exceptions ; and if none be filed within that period, the answer shall on and from that day be deemed and taken as sufficient ; and another rule provides that if no excep- tions be filed, the plaintiff shall file the general replication on or before the rule-day next succeeding that upon which the answer was taken and deemed sufficient.* 1 Hart V. Ten Eyck, 3 Johns. Ch. 2 Pierce v. Brown, 7 Wall. 205; 68; Roach v. Summers, 20 Wall. 165; Mills v. Pittman, 1 Paige Ch. 490, 491. Bank v. Manchester, 128 U. S. 344; ' Equity Rule 66. Clements v. Moore, 6 Wall. 399; Seitz < Equity Rules 61, 66; Hendricks v. V. Mitchell, 94 U. S. 580. Bradley, 85 Fed. R. 508. §§ 369-3T1.] EEPLICATIONS. 423 § 369. When replication to plea must be filed.— When a plea is filed, if the plaintiff does not set it down for argument, he should file thereto the general replication on the next suc- ceeding rule-day after the plea is filed. This is controlled by an equity rule which provides that: "If the plaintiff shall not reply to any plea, or set down any plea or deniurrer for argument on the rule-day when the same is filed, or the next succeeding rule-day, he shall be deemed to admit the truth and suflaoiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for the purpose." * § 370. Filing replication nunc pro tunc. — The court has power at all times and in all cases to allow a replication to be filed nunc pro tunc, and the power will be reasonably exercised where reasonable excuse or sufficient cause is shown for the delay ; as where, by mistake, a replication has not been filed, and yet both parties have proceeded to examine witnesses, as if the general replication had been filed.^ And where an equity cause has been heard upon its merits, upon bill, answer and proofs taken, as upon issue joined, the want of a formal repli- cation cannot be assigned as error on appeal.' § 371, Replications when there are several answers. — The answer of every defendant, when sufficient, must be replied to without reference to the state of the cause or of the pleadings in regard to any of the other defendants. Any defendant whose answer is sufficient has the right to have the cause as to him- self put at issue, so that he maj'' proceed to take testimony if he so desires. But where the cause is not at issue as to all the defendants, and where it is not proper to compel the plaintiff to' go to the proofs until the cause is at issue as to all the de- fendants, the court will, upon a proper application, make an order enlarging the time, under equity rule 69, for the plaintiff to take proofs in the cause upon the issues formed upon the an- swers of the defendants as to whom the cause is at issue.* 1 Equity Rule 38. ' Cent. Nat. Bank of Baltimore v. 2 Equity Rule 66; Fischer V.Wilson, Conn. Mut. Life Ins. Co., 104 U. S. 16 Blatchf. 230, Fed. Cas. No. 4,813; 54,77; Clements v. Moore, 6 Wall. 310. Robinson v. Randolph, Fed. Cas. No. ■• Coleman v. Martin, 6 Blatchf. 391, 11,963; Jones v. Brittan, 1 Woods, Fed. Cas. No. 3,986. 667, Fed. Cas. No. 7,455. CHAPTEE XYIIL CROSS-BILLS. 373. 373. 374 375. Origin of cross-bills. Lord Eedesdale's definition of a cross-bilL Cross-bill defined by the United States supreme court. The essential characteristics of a cross-bill. 376. The cross-bill must be germane to the original bill. 377. Cross-bill for relief. 378. Relief on answer without cross-bill. 379. Cross-bill for discovery. 380. Frame of cross-bill — Parties to cross-bill — Filing cross- bill. § 381. A cross-bill is an ancillary suit. 383. Service of subpoena on cross- bilL 383. Priority of right to an answer to the original and cross- bills. 384 Same — Enlarging publication till cross-bill is answered. 385. Original and cross-bills heard together. 386. EfEect on cross-bill of dismiss- ing original bill. 387. No appeal from decree dismiss- ing oross-bilL § 372. Origin of cross-bills. — Cross-bills, like many other features of equity pleading and procedure, were derived from the civil law. The following statement of their origin and nature is found in the Forum Eomanura : " When the reus was brought in to answer, he was said to be convened, which they call conventio, because the plaintiff and defendant met to con- test; and since the defendant might likewise have demands against the plaintiff, he had liberty to exhibit a libel against him also, which they called reconventio. If the reconventio came in before the litis contestation then both causes went pari passu, and the same probatory term was assigned to both, and the same time given to publication ; but the defendant was to answer in the conventio before the plaintiff was to answer on the reconventio, because the plaintiff first brought the defend- ant into court to answer his suit, and the defendant's recon- ventio was only a superstructure upon it. But if the recon- ventio comes in after the litis contestatio, there both causes do not go pari passu, and therefore it does not stop the plaintiff in the examination of his witnesses ; but if the plaintiff be in § 373.] 0EOSS-BILL8. 425 contempt for not answering on the reconvention there he is es- topped from proceeding on his own conventio, for he cannot proceed in that court when he has gone out of it, and must be attached to answer. But if the reeonventio comes in after pub- lication it will stop the hearing till the plaintiff has contested it; because otherwise, if the defendant has a right, he cannot have a decree upon the plaintiff's libel. Our law touching cross-bills, which is the reeonventio with us, agrees in all things with this; for if the cross-bill comes in before issue joined, it goes pari passu with the original bill; but if it comes in after issue joined, it cannot go pari passu with it, and stops nothing till tbe plaintiff has incurred a^contempt; but if it comes in after publication it stops the hearing till answered, and the rather with us, because the defendant has a right to the plaint- iff's answer upon oath; but if such bill be filed after publica- tion, nothing can be put in the issue upon it that was in issue upon the original cause." ^ §373. Lord Redesdale's definition of a cross-bill. — "A cross-bill is brought by a defendant against a plaintiff or other parties in a former bill pending, touching the matter in ques- tion in that bill. A bill of this kind is usually brought to ob- tain either a necessary discovery or full relief to all parties. It frequently happens, and particularly if any question arises between two defendants to a biU, that the court cannot make a complete decree without a cross-bill or crossbills to bring every matter in dispute completely before the court, litigated by the proper parties and upon proper proofs. In this case it becomes necessary for some or one of the defendants to the original bill to file a bill against the plaintiff and other defend- ants in that bill, or some of them, and bring the litigated point properly before the court. A cross-bill should state the original bill and proceedings thereon, and the rights of the party ex- hibiting the bill which are necbssary to be made the subject of cross-litigaticn or the ground on which he resists the claims of the plaintiff in the original bill, if that is the object of the new bill. But as a cross-bill is generally considered as a defense, or as a proceeding to procure a complete determination of a matter already in litigation in the court, the plaintiff is not, at 1 For. Rom. (Tyler's ed.) 45, 46, 47. 426 FEDBEAL EQUITY PEOOEDTJEE. [§ 374. least as against the plaintiff in the original bill, obliged to show any ground of equity to support the jurisdiction of the court. A cross-bill may be filed to answer the purpose of a plea^Mis darrein continuance at the common law. . . . Upon hearing a cause it sometimes appears that the suit already in- stituted is insufficient to bring before the court all matters nec- essary to enable it fully to decide upon the rights of all the parties.' This most commonly happens where persons in op- posite interests are co-defendants, so that the court cannot de- termine their opposite interests upon the bill already filed, and the determination of their interests is yet necessary to a com- plete decree upon the subject-matter of the suit. In such a case, if upon hearing the cause the difficulty appears, and a cross-bill has not been exhibited to remove the difficulty, the court will direct a bill to be filed, in order to bring all the rights of all the parties fuUy and properly before the court for decision; and will reserve the directions or declarations which it may be necessary to give or make touching the mat- ter not fully in litigation by the former bill, until the new bill is brought to a hearing."^ § 374. Cross-bill defined by the United States supreme court. — "A cross-bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defend- ants in the same suit, or against both, touching the matters in question in the original bill. It is brought either to obtain a discovery of the facts in aid of the defense to the original bill, or to obtain full and complete relief to all parties as to the matters charged in the original bill. It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original, independent suit. The cross- bill is an auxiliary to the proceeding in the original suit and a dependency upon it."^ "iNew parties cannot be introduced into a cause by a cross-bill. If the plaintiff desires to make new parties, he amends his bill, and makes them. If the interest of the defendant requires their presence, he takes the objection 1 Redesdale (6th Am. ed.), 97-100. v. Barrow, 17 How. 130; Ex parte 2Ayers v. Carver, 17 How. 591; Eailroad Co., 95 U. S. 331. Cross V. De Valle, 1 Wall. 5; Shields §§ 375, 376.] CEoss-BiLLS. 427 of non-joinder, and the complainant is forced to amend, or his bill will be dismissed. If, at the hearing, the court finds that an indispensable party is not on the record, it refuses to pro- ceed. These remedies cover the whole subject, and a cross-bill to make new parties is not only improper and irregular, but wholly unnecessary." 1 § 375. The essential characteristics of a cross-hill. — Ac- cording to the authorities ^ cited in the three sections next pre- ceding, and which are in line with the universal current of authority, the essential characteristics of a cross-bill are : 1. It is filed by a person who is a defendant to an original bill in equity already pending. 2. It is filed in the same court where the original bill is pending. 3. It is filed against (1) the plaintiff in the original bill, or (2) other defendants in the original bill, or (3) both the plaintiff and other defendants in the original bill. 4. The subject-matter of the cross-bill is the same as the subject-matter of the original bill. 5. It is filed for the purpose of obtaining either (1) a discovery of the facts in aid of the defense to the original bill, or (2) to obtain full and complete relief to all parties as to the matters charged in the original bill. 6. It cannot introduce new and distinct matters not em- braced in the original bill. 7. The cross-bill is auxiliary and ancillary to the proceeding in the original suit, and a depend- ency upon it. 8. New parties cannot be introduced into a cause by a cross-bill.' § 376. The cross-hill must he germane to the original bill. — It is said in some of the adjudicated cases that the cross- bill must be germane to the original bill ; this is only a differ- 1 Shields v. Barrow, 17 How. 130. case. But sometimes it is brought 2 For. Eom. (Tyler's ed.), 45, 46, 47; against the co-defendants in such de- Eedesdale (6th Am. ed.), 97, 100; pending suit, where they have oppo- Ayers v. Carver, 17 How. 591; Cross site claims which the court cannot V. De Valle, 1 Wall 5; Shields v. Bar- determijie upon in the bill already row, 17 How. 130; Ex parte Railroad filed, and the determination of such Co., 95 U. S. 221; Cooper's Eq. PL 85. clashing interests is still necessary SMr. Cooper says: "A cross-bill to complete the decree. But in such . . . ex vi terminorum implies a last-mentioned case the original bill brought by a defendant in a suit plaintiff must be named a defend- against the plaintiff, respecting the ant, together with the defendants in matter in question in the bill; and the first cause. . . . The general it is a weapon of defense in such object of a cross-bill is to obtain from 428 FEDEEAL EQUITY PEOCEDtJEE. [§ 376. ent mode of stating the principle that the cross-bill should not introduce new and distinct matters not embraced in the orig- inal bill, but that it must be restricted to the matters in ques- tion in the original bill. The rule does not mean that the cross-bill should state no facts not stated in the original bill, nor does it mean that the plaintiff in the cross-bill can assert no rights in the subject-matter of the original suit not. conceded to him in the original bill ; for if such were the meaning of the rule, a cross-bill would be utterly useless and nugatory. All that is required is, that the cross-bill shall not go outside of the matters embraced in the original bill, and introduce new and distinct matters not involved in the original suit. But the plaintiff in the cross-bill may allege additional facts connected with the subject-matter of the original, and may assert any rights he may have in the same arising out of the facts so al- leged, and pray for the appropriate relief. While it is true that the cross-bill must grow out of the matter alleged in the original bill, it is also true that the very object and purpose of the cross-bill is to bring the whole matter in dispute before the court, so that there may be a complete decree touching the subject-matter of the suit, and full and complete justice done to all the parties ; and if the plaintiff in the original bill does not fully state all the facts and circumstances connected with the subject-matter in controversy, but omits facts which, if al- leged, would show a right in a defendant, entitling him to relief against either the plaintiff or a co-defendant, such omit- ted facts, however extended and voluminous, may be stated by the defendant in a cross-bill, and the appropriate relief de- manded ; for it is always the purpose of a court of equity to do full and complete justice to all the parties touching the matter in dispute brought before it by the original bill, and to put an end to the litigation; and the court will, of its own motion, in a proper case, direct a cross-bill to be filed, for the purpose of developing the whole case, and showing the rights of all the parties, and to enable it to decide upon them and make a cora- the plaintiff in the first cause a dis- lief to which he is entitled, as to have covery of facts in his knowledge, an agreement delivered up and can- which constitute the defense of the celed, which is the object of the defendant in such first cause. It is first bill to have specifically per- also frequently brought for some re- formed." Cooper's Eq. PL 85. § 377.] OEoss-BiLLs. 429 plete decree.! But the rule is imperative that the new facts sought to be introduced by the cross-bill must be so directly and closely connected with the cause of action set up in the original bill as to render the cross-suit a mere auxiliary of the original suit or a graft upon it. The new facts which it is proper for a defendant to introduce into a pending litigation, by means of a cross-bill, are such, and such only, as it .is neces- sary for the court to have before it to enable it to do com- plete justice to all the parties before it in respect to the cause of action on which the plaintiff in the original bill rests his right to ask for relief. The defendant, by his cross-bill, should be permitted to fully develop all^he facts of the transactions which constitute the cause of action stated in the original bill, and to assert his rights arising out of such transactions.^ § 377. Cross-bill for relief. — As shown in the chapters on pleas and answers, the answer of a defendant in equity is two- fold, consisting (1) of the defendant's defense to the case for relief made by the bill against him, and (2) his examination on oath giving the discovery sought by the bill.' These two ele- ments constitute the whole of an answer in equity ; and it is confidently believed that no case can be found which holds that, under the English practice, the answer of defendant can be used to obtain affirmative relief or discovery on his behalf. The only prayer of an answer is that, the defendant having fully answered, he be discharged with his costs. And, there- fore, if a defendant conceives himself entitled to any affirma- tive relief against the plaintiff or his co-defendant, touching the matters in question in the original bill, and seeks to obtain such relief by the decree of the court in the pending suit, he must file a cross-bill, stating the facts upon which he bases his lAyers v. Carver, 17 How. 591; M. Co. v. Brown F. M. Co., 46 Fed. E. Cross V. De Valle, 1 WalL 5; Shields 851; Hind v. Case, 33 IlL 45; Lnnd v. V. Barrow, 17 How. 130; Ex parte Skane's Enskilda Bank, 96 111. 181 Railroad Co., 95 U. S. 331; Ayers v. Krueger v. Feny, 41 N. J. Eq. 433 Chicago, 101 U. S. 187; Kingsbury Y. Redesdale (6th Am. ed.), 97-100 Buckner, 134 U. S. 650, 668; Morgan's Fletcher v. Wilson, 1 Smedes & M. Louisiana & Texas R & S. Co. v. Texas Cent. E. Co., 137 U. S. 171, 303 Remer v. McKay, 38 Fed. R 164 Ch. (Miss.) 370. 2 Krueger v. Ferry, 41 N. J. Eq. 433; Ayers v. Carver, 17 How. 591. Johnson R S. Co. v. Union Switch & 3-wigram on Discovery, 11, 94, 113, S. Co., 43 Fed. R 831; Stonemetz P. 114 430 FEDKEAL EQUITY PEOCED0EE. [§378. right to relief, followed by an appropriate prayer for the same.' The case made by the cross-bill must be consistent with the de- fense set up in the answer, or it will be demurrable.'' If the facts alleged in the cross-bill are nothing more than a defense to the case made by the original, and if proved could afford the defendant no affirmative relief, and if such facts may be made available by the defendant in his answer in his response to the allegations of the original bill, and his rights can be fully protected by the court upon the hearing of the original bill, the cross-bill will be demurrable.' § 378. Relief on answer without cross-bill. — There are two exceptions to the rule that a defendant can have no relief in equity without a cross-bill. (1) Where a bill is filed for the specific performance of a contract, and the defendant in his answer sets up a contract materially different from the contract set up in the bill, and the contract set up in the answer is es- tablished by the proof, the court will, for the sake of saving further litigation and expense, decree a performance of the contract established by the proof, without compelling the de- fendant to resort to a cross-bill.* (2) On a bill for a general accounting and settlement, the court will decree to the defend- ant anything that may be due to him on the settlement, al- though he may not have asked for a decree by cross-bill. In such a case the object and prayer of the bill is to settle and close the account, and, therefore, in settling and closing it, the 1 Eedesdale (6th Am. ed.), 77-100; heimer, 37 N. J. Eq. 366; French v. Cooper's Eq. PI. 85-88; Cross v. De Griffin, 18 N. J. Eq. 279; Wicklifiee v. Valle, 1 Wall. 5; Washington, etc. R. Clay, 1 Dana, 589; Morgan v. Tipton, Co. V. Bradley, 10 Wall. 299; White 3 McLean, 339; Hill v. Eyan Grocery V. Bower, 48 Fed. R. 186, 183; Ford V. Co., 78 Fed. R. 21. Douglass, 5 How. 143; Carnoohan v. * Jackson v. Grant, 18 N. J. Eq. 146; Christie, 11 Wheat. 446; Chicago, etc. Graham v. Tankersley, 15 Ala. 634; R. Co. V. Third Nat. Bank, 134 U. S. Berkley v. Ryder, 2 Ves. 533, 536. 276; Jacobs v. Richard, 18 Beav. 300; 3 ilorgan v. Smith, 11 IlL 194; Wing Beddoes v. Pugh, 26 Beav. 416; v. Goodman, 75 111. 159; Newberry v. Chapin v. Walker, 6 Fed. R 794; Blatchford, 106ni. 584; Beckv. Beck, Pattison v. Hull, 9 Cowen, 747; Mil- 43 N. J. Eq. 39; Weed v. Smull, 3 ler V. Gregory, 16 N. J. Eq. 274; Scott Sandf. Ch. 273. V. Lalor, 18 N. J. Eq. 301 ; Mason v. * Bradford v. Union Bank, 13 How. McGirr, 28 111. 322; Norman v. Hud- 57; Stapylton v. Soott, 13 Ves. 435; dle.ston, 64 111. 11 ;Onderdonk V.Gray, Fife v. Clayton, 13 Ves. 546; Gwyn 19 N. J. Eq. 66; Duryee v. Ling- v. Leibridge, 14 Ves. 585. § 379.] CEOSS-BILLS. 431 court will decree, of course, to either party, whatever may be ascertained to be due him, within the scope of the settlement sought by the bill and made by the court.^ § 379. Cross-bill for discovery. — A cross-bill may be brought by a defendant to obtain from the plaintiff a discovery of facts in aid of the defense to the original bill;^ and this right ex- tends not only to facts resting in the knowledge of plaintiff, but also to the discovery, production and inspection of deeds, writings and books of account in the possession or under the power and control of the plaintiff, and which are relevant and material to the defense to the original bill. The right of a de- fendant to discovery from the plaTntifif in aid of the defense is in all respects co-equal with the right of the plaintiff to a dis- covery from the defendant, and a cross-bill seeking discovery in aid of the defense is rested upon the same principle, and regulated by the same rules, as an original bill praying relief and seeking discovery in aid of it ; and in order for a defendant to obtain such discovery he must file a cross-bill against the plaintiff adapted to that end.' A cross-bill is necessary to obtain the discovery, even of a deed admitted by the plaintiff in his bill to be in his possession.* The necessity of a cross-bill by the defendant to obtain discovery from the plaintiff is fully recognized by the United States supreme court, and, to some extent, regulated by an equity rule, promulgated in 1842, which provides that : " "Where a defendant in equity files a cross-bill for discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto be- fore the original plaintiff shall be compellable to answer the cross-bill. The answer of the original plaintiff to such cross- bill may be read and used by the party filing the cross-bill at the hearing, in the same manner and under the same restric- tions as the answer praying relief may now be read ^.nd used." * 1 Rogers v. McMachan,4 J. J. Marsh. E»desdale (6th Am. ed.), 98; Cooper's 37; Clark v. Tipping, 4 Beav. 588; Eq. PI. 85. Nyburg v. Pearce, 85 111. 393; Toul- sWigram on Discovery, 24, 25, 26; min V. Reid, 14 Beav. 499; Johnson Wiley v. Pistor, 7 Ves. 411; Mickle- V. Butler, 31 N. J. Eq. 35; Blair v. thwaitev.Moore,2Mer. 292;Brownv. Green, 45 N. J. Eq. 671; Edgerton v. Newall, 2 Mylne & Cr. 558, 574. Young, 43 111. 464. * 1 Smith's Ch. Pr. 460 ; Chester Iron ^Ayers v. Carver, 17 How. 591; Co. v. Beach, 40 N. J. Eq. 63. 5 Equity Rule 73. 432 FEDERAL EQUITY PEOCEDUEE. [§ 380. § 380. Frame of cross-bill — Parties to cross-bill — Filing cross-bill. — 1. Frame of a cross-hill. A cross-bill should state the parties to the original bill, its object and prayer and pro- ceedings thereon ; and it should also state the facts and fights of the party exhibiting it, and which are necessary to be made the subject of cross-litigation, or the ground upon which he re- sists the claim of the plaintiff in the original bill, if that is the object of the new bill ; in all other respects a cross-bill is framed as an original bill.' 2. Parties to a cross-bill. A cross-bill must be filed by a defendant to the original bill, against the plaint- tiff in the same suit, or against other defendants, or against both ; ^ but where co-defendants are made defendants to a cross- bill, the plaintiff in the original bill must also be joined as a defendant in the new bill.' A cross-bill cannot be used to in- troduce new parties into the cause.^ A cross-bill should pray that the cross-cause and the original cause may be heard at the same time, and that one decree be made and entered in both causes, disposing of the rights of all the parties in the subject-matter of the litigation.* 3. Filirvg cross-bill. The proper time to file a cross-bill is at the time of putting in the answer, and before issue by replication thereto ; and if not filed until after issue, the defendant is not entitled to an order to stay proceedings on the original bill until answer is made to his cross-bill, with- out showing some excuse for the delay in filing the new bill." A cross-bill may be filed after the time has expired for taking proofs in the original cause, and, even after publication, if the plaintiff in the cross-bill is willing .to go to a hearing on the proofs already taken.' Although there should be as little delay as possible in filing a cross-bill, that is a matter entirely in the discretion of the court ; ^ and even upon the hearing, the court will direct a cross-bill or cross-bills to be filed, if the pleadings on file are insufficient to bring before the court all matters nec- essary to enable it to fully decide upon the rights of all the 1 Redesdale (6th Am. ed.), 98 ; Coop- « Irving v. De Kay, 10 Paige Ch. 323. er's Eq. PL 85. 'Cooper's Eq. PI. 87, 88; White v. 2Ayers v. Carver, 17 How. 591; Buloid, 3 Paige Ch. 164; Field v. Redesdale (6th Am. ed.), 97; Cooper's Schiefifelin, 7 Johns. Ch. 350. Eq. PI. 85. 8 Morgan's Louisiana & Texas E. & 3 Cooper's Eq. PI. 85. S. Co. v. Texas Cent K. Co., 137 U. S. * Shields v. Barrow, 17 How. 130. 171, 303. s Wright V. Taylor, 1 Edw. Ch. 336. § 381.J CEOSS-BILLS. 433 parties.' A cross-bill is a regular and legitimate proceeding in a court of equity, to which any party defendant may resort in a proper case, without any special leave of the court; and if it is filed contrary to the usual course and practice of the court, as that it is filed after the publication of the testimony in the original suit, and contains no submission to go to the hearing on the testimony taken, such questions may be raised and de- termined upon demurrer.^ A practice has obtained in the cir- cuit courts of the United States of making application to the court for leave to file a cross-bill, where the defendant has de- layed till after issue joined, or after the proof is taken, or after publication, and even after decree; and the supreme court has held that the granting or refusal of such leave is a matter en- tirely in the discretion of the court.' §381. A cross-bill is an ancillary suit. — A cross-bill in equity in a circuit court of the United States is not a suit by original process; it is an ancillary suit; the cross-bill is an auxiliary to the original suit and a dependency upon it. The statutes of the United States defining the jurisdiction of the courts, and prescribing where suit shall be brought, do not apply to an ancillary or dependent suit ; such suit should be brought in the court wherein is pending the original suit to which it is ancillary and upon which it is dependent, without regard to the citizenship of the parties, or any other ground of federal jurisdiction whatever; the court has jurisdiction of the defend- ant to the cross-bill by virtue of the jurisdiction acquired over him in the original suit. The plaintiff in the original bill, by filing his suit, comes into court voluntarily, and submits him- self and the subject-matter of the suit to the jurisdiction of the court, for the purpose of enabling the court to render a com- plete decree, and decide upon the rights of all the parties, and to entertain all pleadings and applications, and take all pro- ceedings that may be necessary to that end; and the plaintiff in the original bill cannot object that the court cannot enter- tain the cross-bill upon the ground that he is not within the 1 Redesdale (6th Am. ed.), 98, 99, 100. ' Indiana, etc. R. Co. v. Liverpool, 2Neal V. Foster, 34 Fed. R. 496; etc. Ins. Co., 109 U. S. 168; Morgan's Story's Eq. PI., sec. 633; Fiald v. Louisiana & Texas R. & S. Co. v. Schieffelin, 7 Johns. Ch. 250, Texas Cent. R. Co., 137 U. S. 171, 303. 28 484 FEDEEAL EQUITY PEOCEDUEE. • [| 382. jurisdiction of the court and cannot be personally served with process.^ § 382. Service of subpoena on cross-bill, — Inasmuch as a cross-bill is an ancillary and dependent suit,' the subpoena to appear and answer such bill is not, in the courts of the United States, regarded as an original process or proceeding, and does not come within the provisions of the judiciary act requiring that a party sued must be served personally with process in the district in which the suit is brought; nor is the service of such subpoena regulated by equity rule 13, directing the manner of the service of the subpoena upon original bills. But substituted service of the subpoena may be made upon the counsel of rec- ord of the plaintiff in the original bill, and defendant in the cross-bill, or it may be served upon such plaintiff in the original bill outside of the district in which the suit is pending; in order, however, to a substituted service, there should be a previous order of the court authorizing it. The proper practice in such case, it would seem from the authorities, is this: (1) The cross- bill should state the residence of the plaintiff in the original bill, if known, and should also state the names of his counsel of record, and their residence, and should pray for service of the subpoena upon such counsel of record, or upon the plaintiff in the original bill outside of the district. (2) After the cross-bill • is filed, the counsel for the plaintiff therein should present to the court an application for an order authorizing substituted service upon the counsel of record, or upon the plaintiff in the original bill outside of the district. (3) The order being made, a copy of it should be attached to the subpoena when issued, 1 Gregory v. Pike, S9 Fed. R. 588; 387; Clark v. Matthewson, 13 Pet. Lowenstein v. Glidewell, 5 Dillon, 164; Freeman v. Howe, 24 How. 450; 325, Fed. Cas. No. 8,575; The Cortes In re Sabine, Fed. Cas. No. 12,195; Root Co. V. Tannhauser, 9 Fed. R 236; v. Woolworth, 150 U. S. 401; Thomp- Johnson Railroad Signal Co. V. Union son v. McReynoIds, 29 Fed. R. 657; Switch & Signal Co., 43 Fed. R. 381; Lamb v. Ewing, 54 Fed. R. 273, 278; Hatch V. Dorr, 4 McLean, 112, Fed. Deltzsch v. Huidekoper, 103 U. S. Ca8. No. 6,006; Babcook v. Millard, 494; White v. Ewing, 159 U. S. 36- Fed. Cas. No. 690; Dunlap V. Stetson, 40; Pacific Railroad of Mo. v. Mo. 4 Mason, 349, Fed. Cas. No. 4,164; Mil- Pacific E. Ca, 111 U. S. 505; Gumble waukeo, etc. R. Co. v. Souter, 2 Wall. v. Pitkin, 124 U. S. 131; Compton v. 609, 645; Bank v. Leland, Fed. Cas. Jessup, 68 Fed, R 363; Blake v. Iron No. 9,453; Jones v. Anderson, 10 Wall. & Coal Co., 76 Fed. R. 634 •§ 383.] CEoss-BiLLS. 435 and delivered to the marshal who is to serve it. (4) If the order directs the subpoena to be served outside of the district upon the plaintiff in the cross-bill, it should also direct that it be served by the marshal of the district where the service is to be made. (5) When served the subpcBna should be returned as in other cases.^ § 383. Priority of right to an answer to the original and cross-bills. — "The first peculiarity in the proceedings of a cross-bill is that the plaintiff in the original cause is entitled to have an answer to his bill before he can be compelled to answer the cross-bill. . . . The priority of an answer al- lowed to the plaintiff in the original cause may be waived and transferred to the plaintiff in the cross-cause, by the plaintiff's amending his original bill in things material after the filing of the cross-bill. The proceedings in the original suit are not stayed merely by the amendment, and, to deprive the plaintiff in the original cause of his priority of an answer, the amend- ment must be material and such as requires an answer ; but the plaintiff in the cross-bill, upon such material amendments being made, must obtain an order that the proceedings in the ■original bill be stayed until the plaintiff shall have fully an- swered the cross-bill. If such order is not obtained, the plaint- iff in the original cause is warranted in issuing an attachment for want of an answer, and otherwise proceeding with his original suit. The order giving a priority of answer to the plaintiff in the cross-cause may be obtained upon a petition or a motion as of course. The reason why the plaintiff in the original cause loses his priority is that the amended bill as to the amendments is a new bill, and the cross-bill being filed prior to the amendments, and the original and amended bill being considered as one record, the priority of the answer is lost as to the whole. The general rule that the plaintiff in the original suit loses his priority of answer by materially amend- ing the original bill is not varied, although the defendant has •Gregory v. Pike, 29 Fed. E. 588; 4,366; Ward v. Seabring, 4 Wash. Lowenstein v. GlideWeU, 5 Dillon, 473, Fed. Cas. No. 17,160; Cortes Ca 325, Fed. Gas. No. 8,575; Johnson v. Tannhauser, 9 Fed. R. 336. And Railroad Signal Co. v. Union Switch see also the authorities cited under & Signal Co., 43 Fed. R 331; Eokert ante, § 381. T. Banert, 4 Wash. 370, Fed. Cas. No. 436 FEDEBAL EQUITY PEOCED0EE. [§§ 384:-386. put in an insufficient answer, and although the order to amend is made on the terms that the defendant may answer the amendments and exceptions together. . . . Although the plaintiff in the original suit is entitled to stay the proceedings in the cross-suit until the defendant in the original suit has answered, the plaintiff in the cross-suit has not the same privi- lege, unless the original plaintiff, by amending his bill, loses his priority." ^ § 384. Same — Enlarging publication till cross-bill is an- swered, — The general rule is that the court will not stay pro- ceedings in the original cause till the answer to the cross-bill is filed, but it will only enlarge the publication in the original cause until the plaintiff in that cause shall have fully answered the cross-bill; "and the circumstance of the plaintiff in the original bill being in contempt for the want of an answer to the cross-bill does not entitle the plaintiff in the cross-suit to stay proceedings in the original cause, but only to enlarge pubhca- tion." 2 § 385. Original and cross-bills heard together.— The orig- inal bin and cross-bill constitute but one suit, and ought to be set down for final hearing together and heard at the same time, and the rights of aU the parties in respect to the matters liti- gated in both bills should be settled and disposed of by one final decree.' If a cross-bill be taken as confessed, it may be used by the party filing it as evidence against the plaintiff in the original bill, on the hearing, to sustain the allegations of the answer to the original bill, and with the same effect as an answer to the cross-bill admitting the facts therein charged.* § 386. Effect on cross-bill of dismissing original bill.— Where the cross-bill is purely defensive, and sets up no addi- tional facts and seeks no affirmative relief, the dismissal of the original bill carries with it the cross-bill ; but where the cross- bill alleges additional facts not alleged in the original bill, but which are directly connected with the subject-matter of the 11 Smith's Ch. Pr. 461-463. Chicago R. Co. v. Union R. M. Co., 2 1 Smith's Ch. Pr. 464, 465. 466. 109 U. S. 703; Moore v. Huntington, 3 Ex parte Railroad Co., 95 TJ. S. 17 Wall. 417, 433; Whyte v. Arthur, 231, 237; Cross v. De Valle. 1 Wall. 17 N. J. Eq. 531, 534. 615; Ayers v. Carver, 17 How. 591; < White v. Buloid, 3 Paige Ch. 164. § 387.] OEoss-BiLLs. 437 original suit, and prays affirmative relief directly connected with and arising out of the matters of the original suit and the additional facts alleged, the dismissal of the original bill does not carry with it the cross-bill, and the court may order the cause to be retained for a final hearing and decree upon the cross-bill.' § 387. No appeal from decree dismissing cross-bill. — A decree sustaining a demurrer to a cross-bill and dismissing it is not a final decree in the suit, and therefore not the subject of an appeal ; such a decree disposes of a proceeding simply incidental to the principal matter in litigation, and can only be reviewed on an appeal from the final decree disposing of the whole case, which brings up all the proceedings in the cause for re-examination when the party aggrieved by a de- termination in respect to the cross-bill may have it reviewed, as in the case of any interlocutory proceeding in the case.^ 1 Jessup V. Illinois Cent. R. Co., 43 lief, the dismissal of the latter neo- Fed. R. 495 ; Dawson v. Amey, 40 N. essarily disposes of the former. But J. Eq. 496 ; Lardner v. Ogden, 31 Miss, where the cross-bill sets up, as it may 344, 345; Dewees v. Dewees, 55 Miss, do, additional facts not alleged in 317; "Wilkinson v. Roper, 74 Ala. 143; the original bill relating to the same Wickliffe v. Clay, 1 Dana (Ky.), 585; subject-matter, and prays for afHrm- Ragland v. Broadnax, 29 Gratt. 410; ative relief against the plaintiffs in Lowenstein v. GlideweU, 5 DilL 325, the original bill in the case thus Fed. Cas. No. 8,575. made, the dismissal of the original " Whether the dismissal of the bill does not dispose of the cross-bill, original bill carries with it the cross- but it remains for disposition in the bill depends on the character of the same manner as if it had been filed latter. If the cross-bill sets up mat- as an original bill." Judge Caldwell ters purely defensive to the original in Lowenstein v. GlideweU, supra. bill, and prays for no aflBrmative re- ^ Ayers v. Carver, 17 How. 591. CHAPTER XIX. EVIDENCE. § 388. Rules of evidence same at law and in equity. 389. Sources of evidence in suits in equity. (a) The English Chancery Peoce. DURE IN THE Examination of Witnesses. 390. All evidence taken by deposi- tions. 391. Two kinds of examinations in chancery. 392. Officers by whom witnesses were examined. 393. Method of proceeding before examiners. 394. Examination by commission- ers. 395. Examination de bene esse. 396. Examination of witnesses abroad — Commission and letters rogatory, (6) Federal Equity Procedure in THE Examination of Wit- nesses. 397. Mode of proof in equity pre- scribed by federal statutes and equity rules. 898. Three months allowed to take testimony. 399. Competency of witnesses in the United States courts. 400. Two methods of examining witnesses de bene esse. 401. Depositions de bene esse under act of congress. 403. Same — Manner of taking. 403. Same — Certificate and trans- mission. 404. Same — Statutes construed strictly. §405. 406, 407, 408. 409. 410. 411. 412, 413, 414 415. 416. 417. 418. 419. 420. 431. 432. Depositions de bene esse by commission under equity rule. Four methods of examination in chief, > Depositions " according to common usage." Same — Act of congress of March 9, 1892. Depositions taken bycommisi sion under the equity rules. Oral examination of witnesses before an examiner. Oral examination of witnesses in open court on the final hearing. Procedure to compel attend- ance of witnesses before ex- aminers and commissioners. Procedure to compel produc- tion of books, writings and documents before examin- ers and commissioners. Distance witnesses may be re- quired to travel for exam- ination. Bill in perpetuam rei memo- nam. Depositions in District of Co- lumbia in suits pending elsewhere. Letters rogatory. Same — Federal statutory reg- ulations. Examination to impeach the competency and credibility of witness. Demurrer to answering inter- rogatories. Motions to suppress deposi- tions. Ee-examination of witnesses. EVIDENCE, 439 (e) Documentary Evidence. I 483. Judgments and decrees con- clusive evidence, when. 434. Judgments of other states entitled to full faith and credit. 435. Foreign judgments — Their weight as evidence con- trolled by the rule of reci- procity. 436. Parol evidence admissible to show the precise question determined by a former judgment or decree. 437. Judgments and decrees as muniments of title to real estate. 428. Docket entries evidence of receipt of money by United States marshal 439. Authentication of judgments. 430. Authentication of foreign judgments. 431, Authentication of legislative acts. 433. Authentication of foreign laws. 433. Authentication of records from other states kept in offices not appertaining to courts. 434 Copies of records of the gen- eral land office. 435. Copies of foreign laws and records relating to land titles in the United States. 436. Copies of department records and papers. 437. Copies of records and docu- ments in the office of the solicitor of the treasury. 438. Copies of instruments and papers in comptroller's office. 439. Copies of organization certifi- cates of national banks. 440. Transcripts from books of the treasury department. 441. Copies of postoffice records and of auditor's statement of accounts. I § 443. Copies of statements of de- mands by the postoffice de- partment. 443. Copies of the records of the patent office. 444. Copies of foreign letters pat- ent. 445. Printed copies of specifica- tions and drawings of pat- ents. 446. Extracts from the journals of congress. 447. Copies of records in the offices of consuls and commercial agents, •448. Little & Brown's edition of the United States statutes and treaties to be evidence. 449. Proof of the execution of deeds and other private writings. 450. Same — Secondary evidence of execution. 451. Exceptions to the rule requir- ing proof of execution of private writings — Ancient instruments. 453. Same — When the deed is pro- duced by the adverse party claiming an interest under it. 453. Same — Where defendant by his answer admits the exe- cution. 454 Proof of the execution of wills and testaments devising real estate at common law. 455. The courts of the United States have no jurisdiction to take proof of the execu- tion of wills and testaments. 456. Proof of the execution and contents of lost instruments. 457. Same — LostwilL 458. Same — Judicial records. 459. Same — Lost deposition. 460. Same — When the instrument is beyond the jurisdiction of the court. 461. Proof of exhibits, viva voce, at the hearing. 440 FEDEEAL EQUITY PEOCEDUEE. § 463. The production of documents by defendant as evidence for plaintiff. 463. Passing publication of the tes- timony. 464 Examination of witnesses ad informandum conscientiam judicis, obsoleta (d) Jttdioial Notice. 465. Judicial notice — General rule. 466. Federal courts take judicial notice of the federal consti- tution and laws. 467. Same — Corporations created by federal law. 468. Same — Treaties made by the United States. 469. Same — Establishment of ter- ritorial governments. 470. Federal courts take judicial notice of state laws. 471. Same— United States supreme court on writ of error to state court. , 473. Courts of the United States take judicial notice of the state constitutional conven- tions. 473. Federal courts take judicial notice of charters granted by a state, when. 474 Federal courts take judicial notice of the laws of an an- tecedent government. 475. The courts of the United States will not take judicial notice of foreign laws. 476. Judicial notice of seals of no- taries public. 477. Courts of one state do not take judicial notice of the laws of another state. 478. Judicial notice of territorial extent of governmental ju- risdiction. 479. Judicialnotioeof rules of nav- igation. 480. Judicial notice of the procla- mations of the president of the United States. § 481. Judicial notice of the rules and regulations of the exec- utive departments of the federal government. 483. Judicial notice of the persons who preside over the patent office. 483. Courts do not take notice of military orders. 484 Judicial notice of the ordinary meaning of words. 485. In taking judicial notice judges may refresh their memory and inform their conscience. (e) Pbesumptions. 486. Classifioation of presumptions. 487. Presumptions of fact. 488. Same — Presumption as to the delivery of letters. 489. Same — Domicile. 490. Disputable presumptions of law. 491. Same — Presumption that pub- lic officers have done their duty. 493. Same — Regularity of judicial proceedings. 493. Same — That state courts will do what federal constitu- tion and laws require. 494 Same — Presumptions in favor of patents issued for public lands. 495. Same — Persons acting in a public office. 496. Same — Presumption of death from seven years' absence. 497. Same — Persons presumed to intend necessary conse- quences of act. 498. Same — Presumption of legiti- macy — Testamentary recog- nition of child — Civil-law rule. 499. Same — Presumption of date and delivery of deeds. 500. Same — Presumption of grant from long-continued posses- sion. § 388.] EVIDENOE. 441 § 501. Same — Possession by husband of wife's separate property creates no presumption of a gift. 503. Fraus est odiosa et non prce- sumenda — Meaning of the maxim — Fraud established by circumstantial evidenca 503. Presumption of the satisfac- tion and ademption of leg- acies. 504. Presumptions arising from the suppression of testimony. 505. Conclusive presumptions of law. (/) Admissions. 506. Classification of admissions. 507. Actual admissions upon the record. 608. Constructive admissions upon the record. 509. Admissions by stipulation. (g) Some General Rules of Evi- dence. 510. Parol evidence inadmissible both at law and in equity to vary agreements in writ- ing — Rule stated by United States supreme court. § 511. Same — Extrinsic evidence to identify property and per^ sons. 513. Same — Patent ambiguities. 513. Admissibility of extrinsic evi- dence in the interpretation of deeds and wills — English rule as stated by Mr. Spenoe. 514 Same — When the evidence will be admitted. 515. Same — Same — Extrinsic evi- dence to repel presumptions of law relating to legacies. 616. Vice-chancellor Wigram's seven propositions regard- ing the construction of wills. 517. Extrinsic evidence admissible to correct fatal misdescrip- tion of real estate in a wilL 518. The best evidence must be ad- duced. 519. Same — Written instruments. 530. The evidence must be confined to the matters in issue. 531, Same — Confessions and ad- § 388. Rules of evidence same at law and in equity. — It is a fundamental principle that courts of equity follow the common-law rules of evidence ; ^ and it would be productive of very mischievous consequences if such were not the case.^ An effort has been made to engraft some exceptions upon this rule, based upon a decision of Lord Hardwioke, in which he said : " I would not have it understood as if I laid down that the rules of evidence at law and in equity differ in general ; but only in particular cases where fraud is charged by a bill, or in cases of trust, this court does not confine itself within such strict rules as they do at law, but, for the sake of justice and equity, will enter into the merits of the case, in order to come at fraud, or to know the true and real intention of a trust or use declared under deeds."' But in a later case the same 'Gresley's Eq. Ev. 3, 4; Glynn v. Bank of England, 3 Ves. 40; Man- ning V. Lechmere, 1 Atk. 453; Ste- vens V. Cooper, 1 Johns. Ch. 435. 2 Glynn v. Bank of England, 3 Ves. 40. 3 Man V. Ward, 3 Atk. 338 (decided in 1740). 44:2 FEDERAL EQUITY PEOCEDUEE. [§§ 389, 390. ' learned judge, excluding certain evidence upon the ground that it was inadmissible in a court of common law, said : " As to the question whether there is any difference between this and a court of law, I am of the opinion there is not; and it would be of mischievous consequences to lay down a different rule of evidence in equity from what it would be in law; the rules of evidence in general are the same in both courts as to the matter of fact." ' And in a case decided prior to both of those above cited he said : " The rules as to evidence are the same in equity as at law ; and if a witness was not admitted at the trial , there because materially concerned in interest, the same objec- tion will hold against reading his deposition here." * § 389. Sources of evidence in suits in equity. — In suits in , equity the sources from which evidence is obtained by the par- ties respectively to maintain the issues in the pleadings joined, are : 1, The testimony of witnesses, taken upon written inter- rogatories and reduced to writing and jB.led in the cause. 2. Documentary evidence, authenticated in the manner di- rected by law. 3. Facts the existence of which is recognized by law without proof, and of which the court takes judicial notice. 4. Presumptions. 5. The admissions of the parties made in their respective pleadings in the cause, or by stipula- tion or agreement. (a) The English Chanoeey Peaoticb in the Examination of Witnesses. § 390. All evidence taken by depositions j — In suits in chan- cery in England, as the practice stood in 1842, at the time of the adoption of the United States equity rules, evidence was not taken viva voce in open court as at law, but written ques- tions were put, either by an officer of the court, or by persons duly authorized by a special writ called a commission, and the answers of the witnesses were taken down in writing by such persons, and, after being signed by the witnesses, were certi- fied, sealed up and filed in court, and were not opened or pub- lished until all the testimony had been taken. To this general Glynn v. Bank of England, 2 Ves. s Manning v. Leohmere, 1 Atk. 453 40 (decided in 1750). (decided in 1737). §§ 391, 392.] EVIDENCE. 443 rule there were two exceptions, viz.: (1) proving deeds and other written documents viva voce at the hearing ; and (2) the oral examination of witnesses before the master.' § 391. Two kinds of examinations in chancery. — In the English chancery there were two kinds or classes of examina? tions of witnesses, viz. : 1. Examinations in chief. 2. Examina- tions de iene esse. The examination in chief was the regular examination of witnesses in the cause, after it was at issue ; this examination was final and absolute, and upon the evidence thus obtained the parties relied unconditionally at the hearing of the cause. The examination de bene esse was a provisional or conditional examination ; it was executed before the cause was at issue and in a condition in which witnesses could be regularly examined, in order to protect a party against the loss of im- portant and material evidence. Leave was granted by the court to examine a witness de iene esse, when there was suffi- cient reason to apprehend that the testimony of a material witness would be lost on account (1) of the age of the witness^ he being seventy years of age and upward, and infirm, or (2) dan- gerous illness, or (3) his intention to shortly leave the kingdom, or (4) that he was the only witness to an important fact. If the witness who was so examined survived and was in the kingdom at the time of the examination in the cause, his deposi- tion de iene esse could not be read on the hearing, but the party was required as soon as the cause was at issue to examine the witness in the regular way, and failing to do so he lost the testimony of the witness altogether.^ § 392. Officers by whom witnesses were examined.— All examinations of witnesses in suits in chancery, whether in chief or de iene esse, were made and executed by either (1) the reg- ular examiners of the court, or (2) commissioners. The exam- iners were permanent and standing officers of the court, and no commission or other special authority issued to empower them to examine witnesses; and an examination was regarded as an examination in court. If the witnesses resided in London, or within twenty miles thereof, they were exainined by one of the 1 1 Smith's Ch. Prac. 339. ^ i Smith's Ch. Prac. 356-874, 506- 510; 1 Daniell, 474-553. 444: FEDERAL EQUITY PEOCEDUEE. [§§ 393, 394. examiners of the court; if they resided more than twenty miles from London, the parties were entitled to a commission to ex- amine them, but if they w^ere willing to attend before the examiner they were examined by him. The commissioners were not officers of the court, and, therefore, a commission, which was a special writ requiring an order of the court al- lowing it, was issued to them, authorizing them to make the examination.^ § 393. Method of proceeding before examiners. — The suc- cessive steps m the examination of witnesses in chief before examiners were substantially as follows: (1) When the cause was at issue the party, plaintiff or defendant, filed his inter- rogatories with the clerk. They were called original inter- rogatories, and the rules of practice required that they should be confined to the issues made by the pleadings, should not be leading, and should be signed by counsel. (2) A day was then fixed for the examination, of which the opposite party had notice, and a subpoena, or subpoena dnices tecum, issued out of the chancery court and was served on the witnesses, requiring them to attend. (3) On the day of the appearance of the wit- nesses the examiner issued a written notice to the solicitor of the opposite party, stating the names of the witnesses and the place of their abode when in London, in order that he might file cross-interrogatories. (4) The witnesses were then sworn and examined upon the interrogatories seriatim, and were not permitted to read over or hear read any other interrogatories until the one in hand was fully answered ; nor were they al- lowed to depart after having heard an interrogatory read over until the examination thereto was perfected. (5) "When the, examination was completed, the deposition was read over and signed by the witness.* § 394. Examination by commissioners. — The successive steps in the examination of witnesses in chief by commission- ers were substantially as follows : (1) After the cause was at issue an order of court was obtained, as of course, upon either petition or motion, by the plaintiff and defendant, either sep- 1 1 Smith's Ch. Prac. 356-3fil. 2 1 Smith's Ch. Prac. 35&-359; 3 Daniell, 474-488. § 395.] EVIDENCE. 445 arately or jointly, for a commission to examine witnesses ; the commission, being a special writ, could not be issued without an order of court. (2) The order of the court authorizing the issuance of the commission did not name the commissioners, they being afterwards agreed upon by the solicitors of the parties, and the commission then issued to them, giving them the power to take the examination upon the interrogatories to be exhibited, none accompanying the commission. (3) Neither the order of the court allowing it nor the commission con- tained the names of the witness ; but it gave the commission- ers the power " to examine all witnesses whatsoever upon cer- tain interrogatories to be exhibited " on behalf of the party obtaining the writ. (4) A commission could be taken out separately by both plaintiff and defendant, or they could take out a joint commission ; in which latter case the commissioners were given the power to examine all witnesses for both par- ties. (5) As the commissioners were not officers of court, but were acting under a special writ, they Avere required to take and subscribe an oath, printed on a schedule attached to the commission, to execute the commission in the manner required by law ; and their clerk was in like manner required to take an oath to perform his duties in the manner required by law. (6) As soon as the commissioners met and opened the commis- sion, the solicitors for the parties produced their original and cross-interrogatories, and the witnesses were examined in the same manner as before an examiner, and the depositions certi- fied and returned to the court. § 395. Examination de bene esse. — A witness in chancery was examined de hene esse by an examiner or by commissioners, according as he resided within twenty miles of London or at a greater distance ; and there was in his examination nothing diflPerent from the examination of any other witness, it being upon written interrogatories, reduced to writing and signed by him and returned as any other deposition. But there was a material difference in the steps preparatory to an examination in chief and de hene esse. It was necessary to obtain the order of the court allowing the examination de lene esse, and also that the application for the order should be supported by an affi- 1 1 Smith's Ch. Prac. 361-374; 2 Daniell, 489-520. 446 FEDERAL EQUITY PEOCEDrEE. [§§ 396, 397. davit stating the facts relied upon as the ground thereof. The order and the commission, when one issued, authorized and directed the examination of the witness nommatim,} § 396. Examination of witnesses abroad — Commissions and letters rogatory. — If a party to a suit pending in chan- cery in England had witnesses residing abroad whose testi- mony he desired to procure, he made motion upon notice in the cause pending for an order of the court for a commission or commissions for the examination of such witnesses in the country where they resided ; such a commission might issue to take the depositions of witnesses in any Country.'' But if the testimony of a witness residing abroad was sought to be ob- tained for use in aid of, or in defense of, an action at law, it was necessary to file a bill in chancery to obtain the commis- sion.' In some countries the governments refuse to permit the execution, within their jurisdiction, of a commission to ex- amine witnesses, issued by another country or government, upon the ground that it is an interference with the exercise of their own judicial powers ; in such cases, letters rogatory, a process derived from the civil law, are issued to the government in whose jurisdiction the witnesses reside, to be executed by one of its own judges.* (5) Fedeeal Equity Peooeduee in the Examination of "Wit- nesses. § 397. Mode of proof in equity prescribed by federal stat- utes and equity rules. — The federal statutes provide that: " The supreme court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, . . . the modes of . . . taking and obtaining evidence , . . to be used in suits in equity or admiralty by the circuit and district courts ;" ' and that " the mode of proof in causes of equity and of admiralty and mari- time jurisdiction shall be according to the rules now or here- 1 Smith's Ch. Prao. 506-510; 2 Battell, 6 Wend. 474; Nelson v. United Daniell, 540-554 States, 1 Pet. C. C. 236; Gason v. 2 1 Smith's Ch. Prac. 375. Wadsworth, 2 Ves. 336. 3 3 Danieil, 523. 8 U. S. R S., sec. 917. n Hoflf. Ch. Prac. 483; Lincoln v. §§ 398, 399.] . EVIDENCE. 447 after prescribed by the supreme court, except as herein spe- cially provided." ' The federal statutes and the equity rules provide fully for the examination of witnesses in equity causes, and these provisions are pointed out in the sections immediately following. § 398. Three months allowed to take testimony. — An equity rule provides: "Three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court, or a judge thereof, shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be re^d in evidence at the hear- ing." ^ The three months are allowed for the taking of testi- mony by both parties ; the limitation applies as much to the defendants as to the plaintiffs. The defendants are bound to proceed to take testimony as soon as the cause is at issue; they have no right to wait till the plaintiff is through taking his testimonj'. It is for the court or a judge to decide whether further time shall be given or refused to take testimony, and ordinarily the determination of the question would not be deemed a fit subject for review on appeal ; but cases of so fla- grant a character may occur, that it would be the duty of the appellate court to correct the error.' The rule is imperative that no testimony taken after the period allowed shall be read at the hearing;* but such evidence may be admitted in the dis- cretion of the court.' §399. Competency ofwitnesses in the United States courts. A federal statute provides that: "In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or inter- ested in the issue to be tried : Provided, that in actions by or against executors, administrators or guardians, in which judg- ments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward, unless called^to testify thereto by the opposite party or required to testify thereto by the court. In all other respects the laws of lU. S. R S., sec. 863. * Wooster v. Clark, 9 Fed. R 854 2 Equity Rule 69. * Fisher v. Hayes, 6 Fed. R 76. 3 Ingle V. Jones, 9 Wall 486, 500. 448 FEDEEAL EQUITY PEOCEDTJEE. [§§ 400, 401. the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty." > In all cases not provided for by the statutes of the United States, the laws of the state in which the federal court sits con- stitute rules of decision as to the competency of witnesses in all actions at common law, in equity or in admiralty; it is, how- ever, only in cases not provided for by the statutes of the United States that the laws of the state in which the federal court sits constitute rules of decision as to the competency of witnesses." The last clause of the section of the federal stat- ute ' above quoted, which makes the laws of the state the rules of decision as to the competency of witnesses in the courts of the United States in trials in equity " in all other respects," means " in all other respects " than those provided for in so much of the section as precedes the word " provided," and does not qualify the clause which forms the proviso.* "Where an ad- ministratrix brought a suit against the administrator of a de- ceased person and then resigned, and an administrator de bonis non was appointed, and upon his application was permitted to come in and prosecute the suit in the place of his predecessor who had resigned, upon the trial of such suit the former ad- ministratrix was a competent witness for her successor as to a transaction between herself and former husband with the intes- tate of the defendant administrator.' § 400. Two methods of examining witnesses de bene esse. In suits in equity in the circuit courts of the United States, there are two methods prescribed for examining witnesses de hene esse, viz. : 1. Without commission, and with or without no- tice, under act of congress.* 2. By commission, and upon notice, under a United States equity rule.'' §401. Depositions de bene esse under act of congress.— Section 863 of the United States Eevised Statutes provides ' that: "The testimony of any witness may be taken in any lU. S. R. S., sec. 858. b Snyder v. Fielder, 139 U. S. 478, 2 Potter, Ex'r, v. Third National 480. Bank of Chicago, 103 U. S. 163, 167. «IT. 8. R. S., sees. 863, 864, 865. 3 U. S. R. S., sec. 858. ' Equity Rule 70. 4 Goodwin v. Fox, 139 U. S. 601, 641. § 402.] EVIDENCE. 449 civil cause depending in a district or circuit court by deposi- tion de lene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and in- firm. The deposition may be taken before any judge of any court of the United States, or any .commissioner of a cir- cuit court, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city^ judge of a county court or court of common pleas of any of the United States, or any no- tary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. Reasonable notice must first be given in writing by the party or his attor- ney proposing to take such deposition, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition ; and in all cases in rem, the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until ^ claim shall have been put in; and whenever, by reason of the absence from the district and want of an attorney of record or other reason, the giving of the notice herein required shall be im- practicable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon snch notice as any judge authorized to hold courts in such circuit or district courts shall think reasonable and direct. Any persoij may be com- pelled to appear and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court."* § 402. Same — Manner of taking, — Section 864 of the United States Eevised Statutes provides that: " Every person deposing as provided in the preceding section, shall be cautioned and sworn to testify the whole truth, and carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or by himself in the magistrate's presence, and by lU. S. R.S., sec. 863. S9 450 TEDBEAL EQUITY PEOCEDUEE. [§§ 403, 404. no other person, and shall, after it has been reduced to writing, be subscribed by the deponent." ^ § 403. Same — Certificate and transmission. — And sec- tion 865 of the United States Eevised Statutes provides that: "Every deposition taken under the two preceding sections shall be retained by tlie magistrate taking it, until he delivers it with his own hand into the court for which it is taken ; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. But unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting; or that, by reason of age, sickness, bodily infirmity, or imprison- ment, he is unable to travel and appear at court, such deposi- tion shall not be used in the cause." ^ §404. Same — Statutes construed strictly. — The author- ity to take depositions in the manner allowed by the statutes stated in the three sections next preceding, being in deroga- tion of the rules of the common law, has alwaj's been construed strictly, and therefore it is necessary to establish that all the requisitions of the law have been complied with before such testimony is admissible. The conditions under which a party is permitted, and a magistrate is authorized, to take deposi- tions de bene esse under this act are : (1) that the witness lives a greater distance from the place of trial than one hundred miles ; or (2) is bound on a voyage to sea ; or (3) is about to go out of the United States; or (4) is about to go out of the dis- trict to a greater distance from the place of trial than one hun- dred miles; or (5) is ancient or very infirm. The magistrate is required to deliver to the court, together with the deposi- tions so taken, a certificate of the reasons of their being taken, and of the notice, if any, given to the opposite party. In order to entitle the party to read such depositions when taken and certified in due form of law, he must show that, at the time of the trial : (1) the witness is dead ; or (2) gone out of the United lU. S. E. 8., sec. 864. 2U. S. R. S., sec. 866. ■§§ i05, 406.] ETIDENOE. 451 states; or (3) gone to a greater distance than one hundred miles from the place where the court is sitting; or (4) that by reason of age, sickness or bodily infirmity, or imprisonment, he is unable to travel and appear in court. The authority or juris- diction conferred on the magistrate by this legislation is spe- cial, and confined within certain limits or conditions, and the facts calling for its exercise should appear upon the face of the instrument, and not be left to parol proof. The statute requires them to he certified by the magistrate. Where notice is required to be given to the opposite party, such notice should show on its face that the contingency happened which con- fers jurisdiction upon the magistrate, and gives a right to the party to have the deposition taken, so that the party on whom the notice is served may be able to judge whether it is neces- sary or proper for him to attend.' § 405. Depositions de bene esse by commission under equity rule. — An equity rule provides that: "After any bill filed and before the defendant hath answered the same, upon affidavit made that any of the plaintiff's witnesses are aged and infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a com- mission to such commissioner or commissioners as a judge of the court may direct, to take the examination of such witness or witnesses de iene esse upon giving due notice to the adverse party of the time and place of taking his testimony." ^ Depo- sitions de bene esse taken abroad must be taken under this equity rule and cannot be taken under the act of congress, as the op- eration of that statute is restricted to depositions taken in the United States.' § 406, Four methods of examination in chief. — There are four methods prescribed for the examination of witnesses in chief, or after the cause is at issue, in suits in equity in the circuit courts of the United States, viz.: 1. Depositions " according to common usage," under a dedimus potestatem or commission, 1 Harris v. Wall, 7 How. 694; Bell 2 Equity Eule 70. v. Morris, 1 Pet. 351; Whitford v. 3 Cortes Co. v. Tannhauser, 18 Fed. €lai-k, 119 U. S. 523. E. 667. 452 FEDERAL EQUITY PEOOEDTJEB. [§ J:07. pursuant to the act of congress.^ 2. Depositions by commis- sion and accompanying interrogatories under the United States equity rules.'' 3. Depositions by oral examination of the wit- nesses before an examiner of the court, pursuant to the United States equity rules.' 4 By the oral examination of witnesses in open court on final hearing.* §407. Depositions "according to common usage."— The thirtieth section of the original judiciary act,' as revised,' pro- vides that : " In any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take deposi- tions according to common usage; and . . . the provis- ions of sections 863, 864 and 865 shall not apply to any deposition to be taken under the authority of this section." The phrase, ^^ dedvmus potestatem" used in the act, is the special writ under which depositions are taken, and is most usually called a commission.' Depositions taken under this section of the United States Eevised Statutes are under no cir- cumstances to be considered as taken de iene esse, whether the witnesses reside beyond the jurisdiction of the court or within it.* The " common usage " mentioned in the statute signifies the usage or laws of the state where the federal court may be sitting, under which depositions are taken.' This statute has not been repealed, nor superseded by the equity rules, but, on the contrary, it is recognized and supplemented by an equity rule promulgated in 1842, which provides that: "Testimony may also be taken in the cause, after it is at issue, according to the acts of congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examination of the witness, either under a commission or a new deposition taken, under the acts > U. S. R. S., sec. 866. s Sergeant's Lessee v. Biddle, 4 2 Equity Rule 67. Wheat. 508. 3 Equity Rule 67. 9 Buddioum v. Kirk, 3 Cranch, 393 -, * Equity Rule 67. Warren v. Younger, 18 Fed. R 862; 5 1 U. S. Stat, at L., oh. 20, sec. 80, Bischoflfsoheim v. Baltzer, 10 Fed. E. pp. 89, 90. 1; United States v. Cameron, 15 Fed. 6U. S. R.S., sec. 866. E. 794. '3 BL Com. 447; Anderson's Dic- tionary of Law, title Dedimus. §§ 408, 409.] EVIDENCE. 453 of congress, if a court or a judge thereof shall, under all the circumstances, deem it reasonable." ^ The requirements of the procedure under the above section of the Eevised Statutes and the equity rule by which it is supplemented are : (1) The dep- osition must be taken under a dedimus jootestatem or com- mission. (2) The commission cannot issue until authorized by an order of the court. (3) The deposition must be taken ac- cording to common usage or the local laws. (4) If, according to common usage, a part^'^ is permitted to take a deposition without giving the adverse party notice of the time and place of taking the deposition, then he shall be entitled to cross- examine the witness, either undet a commission or by a new deposition, as the court or a judge may deem proper. (5) Depo- sitions taken under the act are in chief, and not de hene esse. § 408. Same — Act of congress of March 9, 1892. — By an act of congress approved March 9, 1892, it is provided : " That, in addition to the mode of taking the depositions of witnesses in causes pending at law or in equity in the district and circuit courts of the United States, it shall be lawful to take the depo- sitions or testimony of witnesses in the mode prescribed by the laws of the state in which the courts are held." ^ The only effect of this statute is to permit depositions to be taken ac- cording to the mode authorized by the state law ; it adopts the mode or manner of taking depositions practiced in the state courts ; but it has not enlarged or changed the conditions under which depositions may be taken in suits in the federal courts.' § 409. Depositions taken by commission nnder the equity rules. — "After the cause is at issue, commissions to take tes- timony may be taken out in vacation as well as in term time jointly by both parties, or severally by either party, upon in- terrogatories filed by the party taking out the same in the clerk's office, ten days' notice thereof being given to the ad- verse party to file cross-interrogatories before the issuing of the commission; and if no cross-interrogatories are filed at the expiration of the time the commission may issue ex parte. In 1 Equity Rule 68; Bischoflfscheim Co., 69 Fed. R. 173; National Cash-Reg- V. Baltzer, 10 Fed. R 1. ister Co. v. Leland, 77 Fed. R. 243; 2 27 U. S. Stat, at L., ch. 14, p. 7. Despeaux v. Pennsylvania R Co., 81 sShellabarger v. Oliver, 64 Fed. R. Fed. R. 897; Texas & P. Ry. Ca v. S06; Mulcahey v. Lake Erie & W. R. Welder, 93 Fed. R. 953. 454 FEDEEAL EQUITY- PEOCEDUEE. [§ 410, all cases tlie commissioner or commissioners may be named by the court or by a judge thereof; and the presiding judge of the court exercising jurisdiction may, either in term time or in vacation, vest in the clerk of the court general power to name commissioners to take testimony." ' The last interrogatory accompanying the commission shall be : " Do you know, or can you set forth, any other matter or thing which may be a ben- efit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause? If yea, set forth the same fully and at large in your answer."^ The witness must answer substantially all the interrogatories, in- cluding the general or last interrogatory, and if he does not it will be a fatal objection to the whole deposition.' It is no objection to a deposition that the witness gives a material part of the evidence under the general interrogatory, instead of giv- ing it in response to particular interrogatories. The regular practice is to propose particular interrogatories, so as to'draw from the witness all that he may know about the matter spe- cially inquired about, and then subjoin a general interroga- tory as to any other material matter; and to this interrogatory the witness may give in evidence any matter which is perti- nent to the cause, which he might have done if such matter had formed the subject -of a particular interrogatory.* § 410. Oral examination of witnesses before an exam- iner. — The next method of examining witnesses in chief in suits in equity in the circuit courts of the United States, is by oral examination before an examiner. An equity rule provides that: "Either party may give notice to the other that he de- sires the evidence to be adduced in the case to be taken orally, and thereupon all the witnesses to be examined shall be exam- ined before one of the examiners of the court, or before an ex- aminer to be specially appointed by the court. The examiner, if he so requests, shall be furnished with a copy of the plead- ings. Such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and lEquity Rule 67. Cas. 3,953; Richardson v. Golden, a 2 Equity Rule 71. Wash. 109, Fed. Cas. 11,783., 8 Dodge V. Israel, 4 Wash. 333, Fed. < Rhoades v. Selin, 4 Wash. 715, Fed. Cas. 11,740. § 410.] EVIDENCE. 455 the witnesses shall be subject to cross-examination and re- examination, all of which shall be conducted as near as may be in the mode now used in common-law courts. The depositions taiien upon such oral examination shall be reduced to writing by the examiner, in the form of questions put and answers given; provided, that, by consent of parties, the examiner may take down the testimony of any witness in the form of narra- tive. At the request of either party, with reasonable notice, the deposition of any witness shall, under the direction of the examiner, be taken down either by a skilful stenographer or by a skilful typewriter, as the examiner may elect, and when taken stenographically shall be pijj; into typewriting or other writing; provided, that such stenographer or typewriter has been appointed by the court or is approved by the parties. The testimony of each witness, after such reduction to writing, shall be read over to him and signed by him in the presence of the examiner and of such of the parties or counsel as may attend ; provided, that, if the witness shall refuse to sign his deposition so taken, then the examiner shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. The examiner may, upon all exam- inations, state any special matters to the court as he shall think fit; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, mate- riality or relevancy of the questions; and the court shall have power to deal with the costs of incompetent, immaterial or irrelevant depositions, or parts of them, as may be just. In case of refusal of witnesses to attend, to be sworn, or to an- swer any question put by the examiner, or by counsel or solic- itor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination be- fore an examiner of said court on written interrogatories. No- tice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. When the examination of wit- nesses before the examiner is concluded, the original deposi- tions, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of 456 FEDERAL EQUITY PEOCEDUEE. [§ 411. record, in the same mode as prescribed in section 865 of the Revised Statutes. . . . "Where the evidence to be adduced in a cause is to be taken orally, as before provided, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in reply; and no further evidence shall be taken in the cause, unless by agreement of the parties or by leave of court first obtained, on motion for cause shown. The expense of the taking down of depositions by a stenographer, and of putting them into typewriting or other writing, shall be paid in the first instance by the party calling the witness, and shall be imposed by the court, as part of the costs, upon such party as the court shall adjudge should ultimately bear them.''^ This rule, allowing the examina- tion of witnesses orally before an examiner, is liberally con- strued by the courts. It was intended to authorize the appoint- ment of examiners outside as well as inside the territorial jurisdiction of the court. The taking of the testimony before an examiner, orally, in the presence of the parties, is much more satisfactory than taking it by commission, and the rule should be construed so as to allow this to be done wherever a party desires it. The statutory mode of transmission adopted by the rule is that : Every deposition taken by an examiner shall be retained by the examiner taking it until he delivers it with his own hand into the court for which it is taken ; or it shall be by him sealed up and directed to such court, and trans- mitted through the mail and remain under his seal until opened in court.' § 411. Oral examination of witnesses in open court on the final hearing. — In any suit in equity, "upon due notice given as prescribed by previous order, the court may, at its discretion, permit the whole, or any specific part of the evidence to be 1 Equity Rule 67. Batt Eefrigerator Ca v. Gillett, 28 2 "Western Division of Western Fed. R. 693; In re Stewart, 29 Fed. North Carolina R. Co. v. Drew, 3 R. 813 ; In re SpofEord, 63 Fed. R. 443. Woods, 691, Fed. Cas. 17,434; John- s U. S. R. S., sec. 865, referred to in son Steel Street Rail Co. v. North equity rule 67 for mode of transmis- Branoh Street Co., 48 Fed. R. 191; sion. § 412.] EVIDENCE. "457 adduced orally in open court on final hearing.* If witnesses are examined orally in open court, upon the final hearing, the testimony so adduced, in substance at least, should be written down at the time and made a part of the record; and if it is not so made a part of the record the appellate court will not, on appeal, consider any objection to its admission or exclusion by the trial court.^ § 412. Procedure to compel attendance of witnesses before examiners and commissioners. — The procedure by which wit- nesses are compelled to appear and testify before examiners and commissioners is (1) by subpoena ad testificandum, and, (2) in case of disobedience to the subpoena, the process of contempt, enforced by a judge of the court within whose jurisdiction the examination is had. This procedure is very fully provided for by the equity rules and the federal statutes. The equity rule which authorizes the oral examina,tion of witnesses before an examiner contains this provision : " In case of refusal of a wit- ness to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories." ' Another equity rule provides : "Wit- nesses who live within the district may, upon due notice to the opposite party, be summoned to appear before the commis- sioner appointed to take testimony, or before a master or ex- aminer appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court ; and if any wit- ness shall refuse to appear or give evidence it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court." * And 1 Equity Rule 67. » Equity Rule 67. 2 Blease v. Garlington, 92 U. S. 1. ^ Equity Rule 78. 458 FEDEEAL EQUITY PEOCEDUEE. [§ 413. it is provided by a federal statute that: " "When a commission is issued by any court of the United States for taking the testi- mony of a witness named therein at any place within any dis- trict or territory, the clerk of any court of the United States for such district or territory shall, on the application of either party to the suit, or of his agent, issue a subpcena for such wit- ness, commanding him to appear and testify before the com- missioner named in the commission, at a time and place stated in the subpoena ; and if any witness, after being duly served with such subpoena, refuses or neglects to appear, or, after ap- pearing, refuses to testify, not being privileged from giving testimony, and such refusal or neglect is proven to the satis- faction of any judge of the court whose clerk issues such sub- poena, such judge may proceed to enforce obedience to the process, or punish the disobedience, as any court of the United States may proceed in case of disobedience to process of sub- poena to testify issued by such court."* The courts of the United States are specially authorized by statute, to punish by fine ' and imprisonment, at their discretion, as a contempt of their authority, the disobedience or resistance " by any party, juror, witness or other person, to any lawful writ, process^ order, rule, decree, or command of the said courts." ^ § 413. Procedure to compel production of books, writings and documents before examiners and commissioners. — The procedure to compel the production before examiners and com- missioners of any writing, deed or books, by a witness is, (1) by subpoena duces tecum, and, (2) in case of disobedience to the subpoena, the process of contempt, enforced by a judge of the court within whose jurisdiction the examination is had. A federal statute provides that : "When either party to the suit in which the testimony of the witnesses is to be taken applies to any judge of a United States court in such district or terri- tory for a subpoena commanding the witness, therein to be named, to appear and testify before the " commissioner, at the time and place to be stated in the subpoena, and to bring with him and produce to such commissioner any paper or writings or written instrument, or book or other document, supposed ■ U. a R. a, see. 868. v. Plymouth County Dist. Ct., 134 U. S. 2U. a R. a, sec. 735; Eilenbeoker 31; Re Savin, ICl U. a 367. § 414.J EVIDENCE. 459 to be in the possession or power of such witness, and to be de- scribed in the subpoena, such judge, on being satisfied by the affidavit of the person applying, or otherwise, that there is reason to believe that such paper, writing, written instrument, book or other document is in the possession or power of the Avitness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may order the clerk of said court to issue such subpoena accord- ingly. And if the witness, after being served with such sub- poena, fails to produce to the commissioner, at the time and place stated in the subpoena, any such paper, writing, written instrument, book or other document, being in his possession or power, and described in the subpoena, and such failure is proved to the satisfaction of said judge, he may proceed to en- force obedience to said process of subpoena, or punish the dis- obedience in like manner as any court of the United States may proceed in case of disobedience to like process issued by the court. When such paper, writing, written instrument, book, or other document is produced to such commissioner, he shall, at the cost of the party requiring the same, cause to be made a correct copy thereof, or so much thereof as shall be required by either of the parties." ^ Sections 866, 867, 869 and 870 of the United States Eevised Statutes are, so far as they extend, controlling.^ § 414. Distance witness may Ibe required to travel for ex- amination. — The United States Eevised Statutes provide that: "ISTo witness shall be required, under the provisions of either of " sections 868 and 869, which authorize the issuance of sub- posnas ad testificandum and subpoenas duces tecum,, to require witnesses to appear for examination under a commission issued by a court of the United States, " to attend at any place out of the county where he resides, nor more than forty miles from the place of his residence, to give his deposition ; nor shall any witness be deemed guilty of contempt for disobeying any subpoena directed to him by virtue of either of said sections, lU. S. R S., sec. 869; In re Stew- tempt, witnesses and other persons art, 29 Fed. K. 813; In re Spofford, 63 disobeying any lawful writ, process, Fed. R 443. And see also section order, rule, decree or command of 725, giving the courts of the United the said courts. States power to punish, as for con- 2 Ex parte Fish, 113 U. S. 713. 460 FEDERAL EQITITT PEOCEDITEE. [§ 415. unless his fee for going to, returning from, and one day's attend- ance at the place of examination, are paid or tendered to him at the time of the service of the subpoena." ^ The equity rule which provides for the attendance of witnesses before commissioners, examiners and masters imposes no restrictions as to the dis- tance such witnesses may be required to travel, except that they must live in the district in wliich the examination is to be had ; nor does the rule require the payment or tender of fees in advance.^ §415. Bill ill perpetuam rei meinoriam. — A bill in per- jpetuamh rei memoriam. is filed for the purpose of preserving the evidence of witnesses touching a matter which cannot be imme- diately investigated in a court of law, or where the evidence of a material witness is likely to be lost by death, or de- parture from the realm before the facts can be investigated. The bill is brought by a person in possession, having no oppor- tunity to examine his witnesses' at law, and the object of the bill is to preserve evidence for future litigation; it is in accord- ance with the Koman civil law in cases where any one foresaw that he might have occasion for proof by witnesses, and was apprehensive of their death before he should have occasion to use their testimony. A bill to perpetuate the testimony of wit- nesses should state the matter touching which the plaintiff de- sires to obtain evidence, and should show that he has some present interest in the subject-matter that may be endangered if the testimony in support of it should be lost; the bill should Btate that no action can be immediately brought, and pray leave to examine the witnesses touching the matter stated, to the end that their testimony may be preserved and perpetuated. The plaintiff compels the appearance of the defendant, and the suit is proceeded with in the usual manner to issue joined, and issuing a commission for the examination of witnesses, which is made out, executed and returned in the same manner as other commissions. The court will not permit the depositions taken under a commission to examine witnesses i/n perpetuam, rei memoricum to be published, except in support of a suit or action, and then only after the death of the witness, or in case of his being sick or incapable of traveling.' A federal statute 1 U. S. R. S., seo. 870. 'Cooper's Eq. PL 52-^7; 1 Smith's 2 Equity Eiile 67. Ch. Prao. 484-488. § 416.] EVIDEWOE. 461 provides that any circuit court of the United States, " upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in jperpetuam rei memoriam, if they relate to any matters that may be cog- nizable in any court of the United States;" and that "any court of the Unifed States may, in its discretion, admit in evi- dence in any cause before it any deposition taken in jaerpetuam rei memoriam, which would be so admissible in a court of the state wherein such cause is pending, according to the laws thereof." ' § 416. Depositions in District of Columbia in suits pend- ing elsewhere.— The Eevised Statutes contain the following provisions: " Sec. 871. When a commission to take the testimony of any witness found within the District of Columbia, to be used in a suit depending in any state or territorial or foreign court, is issued from such court, or a notice to the same eifect is given accord- ing to its rules of practice, and such commission or notice is pro- duced to a justice of the supreme court of said district, and due proof is made to him that the testimony of such witness is ma- terial to the party desiring the same, the said justice shall issue a summons to the witness, requiring him to appear before the commissioners named in the commission or notice, to testify in such suit, at a time and at a place within said district speci- fied. " Sec. 872. When it satisfactorily appears by affidavit to any justice of the supreme court of the District of Columbia or to any commissioner for taking depositions appointed by said court — " First. That any person within said district is a material witness for either party in a suit pending in any state or terri- torial or foreign court ; " Second. That no commission or notice to take the testi- mony of such witness has been issued or given; and " Third. That, according to the practice of the court in which the suit is pending, the deposition of a witness taken without the presence or consent of both parties will be received on the trial or hearing thereof, such officer shall issue his summons, 1U.S.R.S., sees. 866, 867. 462 FEDBBAL EQUITY PEOCEDUEE. [§ 417, requiring the witness to appear before him at a place within the district, at some reasonable time, to be stated therein, to testify in such suit. " Sec. 873. Testimony obtained under the two preceding sec- tions shall be taken down in writing by the officer before whom the witness appears, and shall be certified and transmitted by him to the court in which the suit is pending, in such manner as the practice of that court may require. If any person re- fuses or neglects to appear at the tirtie and place mentioned in the summons, or, on his appearance, refuses to testify, he shall be liable to the same penalties as would be incurred for a like offense on the trial of a suit. ' " Sec. 874. Every witness appearing and testifying under the said provisions relating to the District of Columbia shall be entitled to receive for each day's attendance, from the party at whose instance he is summoned, the fees now provided by law for each day he shall give attendance." ' § 417. Letters rogatory. — When a foreign government re- fuses to suffer a commission to be executed within its jurisdic- tion, the circuit courts of the United States will issue letters rogatory to obtain the testimony of witnesses residing there ; and, in such cases, where the examination of the witnesses is taken out of the hands of the persons appointed by the court, the ends of justice seem to require a departure, in some de- gree, from the ordinary rules of evidence.^ " In some foreign countries, the government refuses to permit the commissioners to administer the oath to witnesses, considering it an interfer- ence with the proper judicial power. In such cases a course has been adopted, from a practice known in the civil law, of issuing what are termed letters rogatory, or, as they are some- times called, requisitory. Of course, a special application would be necessary for an order for this purpose." ' The following is the form of letters rogatory issued in the case cited : " United States. District Court of Pennsylvania. The President of the United States, to any Judge or Tribunal, having jurisdiction of civil causes at Havana, Greeting : Whereas 1 U. S. R S., sees. 871, 873, 873. 874. a Hoflfman's Ch. Prao. 481, 482. 2 Nelson v. United States, Pet. C. C. 235, Fed. Cas. 10,116. ■§ 418.] EVIDENCE. 4-63 & certain suit is pending before us in which John D. Nelson, Henry Abbott and Joseph E. Tatem are the claimants of the schooner Perseverance and cargo, and the United States of America are the defendants; and it has been suggested to us, that there are witnesses residing within your jurisdiction without whose testimony justice cannot completely be done between the parties, we therefore request you, that, in further- ance of justice, you will, by the proper and usual process of your court, cause such witness or witnesses as shall be named or pointed out to you, or either of them, to appear before you, or some competent person to be appointed and authorized, at a precise time and place by ]fou to be fixed, and there to answer on their oaths and afiirraations to the several inter- rogatories hereto annexed; and that you cause their deposi- tions to be committed to writing, and returned to us under oover, duly closed and sealed, together with these presents. And we shall be ready and Avilling to do the same for you in a similar case when required. Witness," etc.^ § 418. Same — Federal statutory regulations.— Congress has established the following statutory regulations in regard to letters rogatory, namely : " When any commission or letter rogatory, issued to take the testimony of any witness in a foreign country, in any suit in which the United States are parties or have an interest, is executed by the court or the commissioner to whom it is di- rected, it shall be returned by such court or commissioner to the minister or consul of the United States nearest the place where it is executed. On receiving the same, the said minister or consul shall indorse thereon a certificate, stating when and where the same was received, and that the said deposition is in the same condition as when he received it; and he shall thereupon transmit the said letter or commission, so executed and certified, by mail, to the clerk of the court from which the same issued, in the manner in which his official dispatches are transmitted to the government. And the testimony of wit- nesses so taken and returned shall be read as evidence oft the trial of the suit in which it was taken, without objection as to 1 Nelson v. United States, Pet. C. G. 235, Fed. Gas. 10,116; and see3 HoflE- man's Gh. Prac. 140, Form No. 163. 464 FEDERAL EQUITY PEOCEDTTEE. [§ 418. the method of returning the same. When letters rogatory are addressed from any court of a foreign country to any circuit court of the United States, a commissioner of such circuit court designated by said court to make the examination of the wit- nesses mentioned in said letters, shall have power to, compel the witnesses to appear and depose in the same manner as wit- nesses may be compelled to appear and testify in courts.^ " The testimony of any witness residing within the United States, to be used in any suit for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the govern- ment of such foreign country shall be a party or shall have an interest, may be obtained, to be used in such suit. If a com- mission or letters rogatory to take such testimony, together with specific written interrogatories accompanying the same, and addressed to such witness, shall have been issued from the court in which such suit is pending, on producing the same be- fore the district judge of any district where the witness resides or shall be found, and on due proof being made to such judge that the testimony of any witness is material to the party de- siring the same, such judge shall issue a summons to such wit- ness requiring him to appear before the officer or commissioner named in such commission or letters rogatory, to testify in such suit. And no witness shall be compelled to appear or to testify under this section except for the purpose of answering such interrogatories so issued and accompanying such commission or letters : Provided, that when counsel for all the parties at- tend the examination, they may consent that questions in addi- tion to those accompanying the commission or letters rogatory may be put to the witness, unless the commission or letters rogatory exclude such additional interrogatories. The sum- mons shall specify the time and place at which the witness is required to attend, which place shall be within one hundred miles of the place where the witness resides or shall be served with such summons.^ " No witness shall be required, on such examination or any other under letters rogatory, to make any disclosure or discov- ery which shall tend to criminate him either under the laws of 1 U. S. R S., sec. 875. 2U. S. R. S., sec. 4071. § 419.] EVIDENCE. 465 the state or territory within -which such examination is had, or any other, or any foreign state.^ " If any person shall refuse or neglect to appear at the time and place mentioned in the summons issued, in accordance with section 4071, or if upon his appearance he shall refuse to tes- tify, he shall be liable to the same penalties as would be in- curred for a like offense on the trial of a suit in the district court of the United States.^ " Every witness who shall so appear and testify shall be al- lowed, and shall receive from the party at whose instance he shall have been summoned, l^e same fees and mileage as are allowed to witnesses in suits depending in the district courts of the United States." ' I 419. Examination to impeach the competency and cred- ibility of a witness. — If a party to a suit in equity vrould ob- ject to the competency or credibility of a witness who has been examined in the cause against him, he must make a special ap- plication to the court, by petition, for liberty to exhibit articles, stating the facts and objections to the witness, and praying leave to examine other witnesses to establish the allegations in the articles by suitable proofs ; and upon this petition leave is ordinarily granted.* In Smith's Chancery Practice the pro- cedure upon this matter is stated as follows: " By Lord Bacon's seventy-second ordinance, no examination is to be had of the credit of any witness but by special order, which is sparingly to be granted. By Lord Clarendon's order the examiner is not to examine any witnesses to invalidate the credit of any other witnesses, but by special order of the court, which is sparingly to be granted, and upon exceptions first put into writing and filed with the examiner. An order to exam- ine to the credit of a witness may be obtained before publica- tion has passed. And there is no precise time beyond which witnesses cannot be discredited. "The examination of witnesses as to credibility, whether be- fore or after publication, can only be upon special application ; therefore, evidence taken to that point upon the examination 1 U. S. E. S., sec. 4073. * Gass v. Stinson, 2 Sumn. 605, Fed. 2U. S. R S., sec. 4073. Cas. 5361; Wood v. Mann, 2 Sumn. SU. S. R S., sec. 4074 316, Fed. Cas. 17,953. 30 466 FEDERAL EQUITY PEOCEDTJEE. [§ 420. in chief was suppressed as impertinent. The order for leave to examine witnesses in support of articles exhibited to dis- credit a witness is made upon notice. ... " After publication has passed, the party may exhibit articles to discredit a witness who has been cross-examined, by proving that he is not to be believed upon oath ; but he can only ex- hibit interrogatories to such particular facts as are not mate- rial to what is in issue . in the cause ; and is limited to the general question whether the witness is to be believed upon his oath. . . , The court will not allow articles to be exhib- ited against the competency of a witness after publication, but if the incompetency come to the knowledge of the party after publication, he may apply by motion to examine to that matter. ... In equity an objection to the competency of a witness is not waived by cross-examining him. On objection to com- petency, the evidence is never read ; if to credit only, the evi- dence is read, and left to the consideration of the court." ' "Evidence to impeach credit is in one shape or other admitted into almost every system of jurisprudence. One of the griev- ances in the star chamber was that they would not allow it there. It was at that time, and still continues, frequent in the ecclesiastical courts. At common law a party may bring for- ward witnesses to swear that they would not believe the oath of an adverse witness who has given his testimony, or that they have heard him at other times represent differently some fact to which he has sworn ; but in the latter case the most ample notice possible must have been given to him, in his cross- examination, as to the particular points upon which witnesses are about to be called to contradict him. In equity the differ- ent form of the proceeding causes a considerable difference in the process of impeaching credit. . . . Instead of requir- ing a cross-examination as a preliminary, the courts of equity require articles, or exceptions, to be filed, and a special motion to be made upon a certificate of that having been done." ^ The articles should state the facts which it is proposed to be proved to discredit the witness.' § 420. Demurrer to answering interrogatories.— If a wit- ness has any valid objection to making answer to an interroga- 1 1 Smith's Ch. Prac. 398-400. ' Gresley's Eq. Ev. 306, 207. 2 Gresley's Eq. Ev. 204, 205. II 421-4:23.] EVIDENCE. 467 tory, or any part of an interrogatory, he should state such objections in the form of a demurrer, which should be taken down in writing by the examiner or commissioner taking the deposition.* The validity of the objections to answering may be brought to the attention of the court and passed upon by it, by process of contempt against the witness to compel him to answer,^ or by the examiner or commissioner certifying the •demurrer to the court and setting it down for argument.' § 421. Motions to suppress depositions. — If depositions are scandalous and impertinent, or if the interrogatories are lead- ing, or if there has been any^aterial irregularity in the ex- ecution and return of the commission, they may, on motion, be suppressed.* But depositions will not be suppressed for slight and immaterial errors which are not prejudicial to the parties.' § 422. Re-examination of witnesses. — When the deposition ■of a witness has been suppressed upon the ground of an unin- tentional irregularity in taking it, or when the witness has made an inadvertent omission in answering, or when the com- missioner or examiner taking the testimony has made a mis- take, or has failed to write down any material part of the testimony of a witness, such witness may be re-examined, if the •court shall be of opinion that such re-examination is necessary to the ends of justice; but an order of the court is necessary to authorize such re-examination.* (c) DOCUMENTAET EVIDENCE. § 423. Judgments and decrees conclusive evidence, when. A final judgment at law, or a final decree in equity, rendered hy a court of competent jurisdiction, and having jurisdiction of the parties and the subject-matter, is conclusive evidence of •every question which was or might have been presented and -determined' in such suit, when offered in evidence in a second 1 1 Smith's Ch. Prac. 383, 384 « Bibb v. Allen, 149 U. S. 981 ; Gortn- 2U. S. E. S., sees, 868, 869; In re ley v. Bunyan, 138 U. S. 633. «tewart, 29 Fed. R. 813; In re Spot « 1 Smith's Ch. Prac. 349, 397; 3 Dan- ford, 63 Fed. R. 443; Equity Rule 78. iell, 583-593; Tamlyn's Eq. Ev. 55-57; 3 1 Smith's Ch. Prac. 383, 384. Thurber v. Cecil Nat. Bank, 53 Fed. * 1 Smith's Ch. Prac. 893. R. 573. 468 FEDERAL EQUITY PEOCEDUKE. [§ 424. suit upon the same cause of action, and between the same par- ties or their privies; but jf the second suit is upon a different cause of action, though between the same parties or their priv- ies, the judgment is conclusive evidence in the second suit only as to the question actually litigated and determined in the first suit.^ § 424. Judgments of other states entitled to full faith and credit. — At the time of the Eevolution and the organization of the federal government, the law, as to the credit, validity and effect which should be given by one state or country to the judgments of the courts of another state or country, was in a very unsettled condition. In this country, as between the colo- nies, such judgments were regarded as only prima facie evi- dence of the rights decided by them, and subject to be inquired into by plea when sued on in another state. " It was most reasonable, on general principles and justice, that among states and their citizens united as " the colonies were to be under the new government, that " judgments rendered in one state should bind citizens of other states, where defendants had been served with process, or voluntarily made defense." ^ With this policy in view, and to remedy the defects of the old law, the matter was made the subject of a constitutional provision, namely: " Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may, by general laws, prescribe the manner in which such acts, records and judicial proceedings shall be proved, and the effect thereof." ' Pursuant to this constitutional provision, congress enacted two statutes upon the subject, one approved May 26, 1790,* and the other approved March 27, 1804,° and which, as carried into the Eevised Statutes,' are as follows : " The acts of the legis- 1 Nesbit V. Independent District of Lee, 6 Wheat. 109; W. A. & G. Packet Riverside, 144 U. S. 610, 631; Crom- Co. v. Sickles, 24 How. 333; Mutual well V. Sac County, 94 U. S. 351; L. Ins. Co. of N. Y. v. Harris, 97 U. S. Wilmington & Weldon E. Co. v. Als- 331; ante, §§ 278, 279, 280. brook, 146 U. S. 279, 303; Keokuk & 3 D'Arcy v. Ketchum, 11 How. 165, W. R. Co. V. State of Wisconsin, 153 175; McElmoyle v. Cohen, 13 Pet. 313. U. S. 303, 313; Roberts v. Northern 'u. S. Const., art. IV, § 1. Pacific R Co., 158 U. S. 130; Last n U. S. Stat, at L., ch. 11, p. 132. Chance Mining Co. v. Tyler Mining 5 g u. S. Stat at L., ch. 56, pp. 298, Co., 157 U. S. 683, 696; Thompson v. 299. Roberts, 24 How. 333; Hopkins v. « U. S. R. S., sec. 905. § 424.J EVIDENCE. 469 lature of any state or territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seal of such state, territory or country affixed thereto. The records and judicial proceedings of the courts of any state or territory, or of any such country, shall be proved or admitted in any court within the United States, by the attestation of the clerk, and tbe seal of the court annexed, if there be a seal, to- gether with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they hav? by law or usage in the courts of the state from which they are taken." The purpose of these constitutional and statutory provisions was to determine the weight and e£fect, as evidence, of a judg- ment of the courts of one state, when made the foundation of a new suit in the courts of another state ; the purpose was to establish a rule of evidence; and, while there has been some conflict in the opinions delivered from time to time by the supreme court of the United States, in the adjudicated cases, the result of all of those cases is, to establish the following rule of evidence, viz.: That a judgment pronounced and rendered by a court of competent jurisdiction, having jurisdiction of the subject-mat- ter and of the parties, shall, when exemplified according to the act of congress, have the same weight, credit, validity and effect, «s evidence, in every other state, that it has in the state where it is pronounced and rendered ; but the court in which the judgment is presented as evidence shall always have the power to inquire whether or not the court which pronounced and entered it had jurisdiction of the subject-matter and of the parties affected by it.^ But congress has not undertaken 1 Hampton V. McConnell, 3 Wheat. Harris, 97 TJ. a 331; Green v. Van 284; Mills v. Duryee, 7 Cranoh, 481; Buskirk, 7 Wall. 189; Cooper v. Rey- McElmoyle v. Cohen, 13 Pet. 813; nolds, 10 Wall. 308; Christmas v. D'Aroy v. Ketchnm, 11 How. 165; Russell, 5 Wall. 390; Thompson v. Wisconsin v. Pelican Ins. Co., 137 Whitman, 18 Wall. 454; Knowles v. U. S. 365, 300; Hanley v. Donoghue, Gas Light & Coke Co., 19 Wall. 58; 116 U. S. 1, 4; Cade v. Cunningham, Settlemier v. Sullivan, 97 U. S. 444; 133 U. S. 107, 138; Maxwell v. Stew- Grover & B. Sewing Machine Co. v. art, 33 Wall. 77; Insurance Co. v. Radcliflf, 137 U. S. 287; Carpenter v. 470 FEDERAL EQIHTT PEOCEDUEB. [§ 425. to prescribe in what manner the effect of such judgments in the courts of the state in which they are rendered shall be as- certained, and has left that to be regulated by the general rules of pleading and evidence applicable to the subject; and whenever it becomes necessary for a court of one state to as- certain the effect that a judgment has in the courts of another state in which it was rendered, in order to give it full faith and credit, the law of the state in which the judgment was rendered must be'proved like any other matter of fact.' The federal courts are bound to give to the judgments of the' state- courts only the same faith and credit which the courts of another state are bound to give them.''* § 426. Foreign judgments — Their weight as evidence controlled by the rule of reciprocity. — When foreign judg- ments and decrees are sued on in the courts of this country^ their weight as evidence is controlled by the rule of reciproc- ity, which rule is a part of international law ; and, therefore, a judgment rendered in France, by whose laws the judgments of the courts of this country are reviewable upon their merits,, is not entitled to full credit and conclusive effect when sued upon in this country, but is prima facie evidence only of the justice of the plaintiff's claim;' But a judgment rendered in Canada by a court of competent jurisdiction, and having juris- diction of the parties and the subject-matter, rendered upon regular proceedings and due notice, and not procured by frauds is, when sued upon in this country, conclusive evidence of the matters therein determined, because, by the law of England, prevailing in Canada, a judgment rendered by an American Strange, 141 U. S. 87; Simons v. Saul, Heaton, 9 Wis. 328; Crafts v. Clark, 138 U. S. 439; Reynolds v. Stockton, 31 Iowa, 77; Taylor v. Barron, 35 N. 140 U. S. 354; Huntington v. Attrill,. H. 484; Knapp v. Abell, 10 Allen, 146 U. S. 657. 485; Mo wry v. Chase, IQO Mass. 79; 1 Hanley v. Donoghue, 116 U. S. 1, Wright v, Andrews, 130 Mass. 149; 7; Scott V.Coleman, 5 Litt 349; Bank of United States v. Merchants' Thomas v. Robinson, 3 Wend. 267; Bank, 7 Gill, 415, 481; Coates v. Shelden v. Hopkins, 7 Wend. 435; Maokey, 56 Md. 416, 419. Van Buskirk v. Mulock, 3 Harr. spennoyer v. Neff, 95 U. S. 714, (N. J.) 184; Elliott v. Ray, 2 Blackf. 748; Chicago, etc. R. Co. v. Wiggins 31; Cone v. Catton, 2 Blackf. 82; Ferry Co., 108 U. S. 18; Chasev.Cur- Snyder v. Snyder, 25 Ind. 399; Pel- tis, 103 U. S. 453; Mills v. Duryee, 7 ton V. Platner, 13 Ohio, 209; Horton Cranch, 480. v. Critohaeld, 18 IlL 133; Rape v. » Hilton v. Guyot, 159 U. S. 162-229. § 426.] EVIDENCE. 471 court under like circumstances would be allowed full and con- clusive effect when sued on in that country.^ § 426. Parol evidence admissible to show the precise ques- tion determined by a former judgment or decree.— It is undoubtedly the settled law, that a judgment of a court of competent jurisdiction, upon a question directly involved in a suit, is conclusive as to that question in another suit between the same parties ; but, to give such judgment this effect, it must appear, either upon the face of the record, or be shown by ex- trinsic evidence, that the precise question was raised and deter- mined in the former suit. An4, when such judgment is offered 1 Ritchie v. MoMuUen, 159 U. S. 240- 243. In Hilton v. Guyot, supra, Justice Gray, after an exhaustive examina- tion of the authorities upon the credit and effect to be given to for- eign judgments, said: "The prediction of Mr. Justice Story (in § 618 of his Commentaries on the Conflict of Laws, already cited) has thus been fulfilled^ and the rule of reciprocity has worked itself firmly into the structure of in- ternational jurisprudence. " The reasonable, if not the neces- sary, conclusion appears to us to be that judgments rendered in France, or in any other foreign country, by the laws of which our own judg- ments are reviewable upon the mer- its, are not entitled to full credit and conclusive effect when sued upon in this country, but &re prima facie evi- dence only of the justice of the plaint- iff's claim. " In holding such a judgment, for want of reciprocity, not to be con- clusive evidence of the merits of the claim, we do not proceed upon any theory of retaliation upon one per- son by reason of injustice done to another; but upon the broad ground that international law is founded upon mutuality and reciprocity, and that by the principles of interna- tional law recognized in most civil- ized nations, and by the comity of our own country, which it is our ju- dicial duty to know and to declare, the judgment is not entitled to be considered conclusive. "By our law, at the time of the adoption of the constitution, a for- eign judgment was considered as prima facie evidence, and not con- clusive. There is no statute of the United St-ates, and no treaty of the United States with France, or with any other nation, which has changed that law, or has made any provision upon the subject. It is not to be supposed that, if any statute or treaty had been or should be made, it would recognize as conclusive the judg- ments of any country, which did not give like effect to our own judgn ments. In the absence of statute or treaty, it appears to us equally un- warrantable to assume that the com- ity of the United States requires any- thing more. . . . "In the courts of nearly every other nation, it " . (the judgment) " would be subject to re-examination, either merely because it was a for- eign judgment, or because judg- ments of that nation would be re- examinable in the courts of France." 159 U. S. 337, 328. 472 FEDERAL EQUITY PEOCEDUEE. [§§ 427-429. in evidence in a second suit between the same parties, if there be any doubt or uncertainty from the record, as to the precise question or questions raised and determined in the former suit, such doubt and uncertainty may be removed by parol or other extrinsic evidence. To apply the judgment rendered in the former suit, and give effect to the adjudication actually made, •when the record leaves the matter in doubt, parol evidence is admissible.^ § 427. Judgments and decrees as muniments of title to real estate. — While it is true, as a general rule, that judgments and decrees are evidence only in suits between parties and privies to the former suit in which the judgment or decree was rendered, yet this rule is wholly inapplicable to a case where a decree is not introduced as per se binding upon any rights of the adverse party, but is introduced by one who is a purchaser of real estate at a judicial sale, as a muniment of title.^ § 428. Docket entries evidence of receipt of money by United States marshal. — Entries made by a United States marshal or his deputies, upon the dockets of the court, of the receipt of money collected by the marshal, upon judgments rendered by the court, are competent evidence against the sureties of the marshal, in a suit on his official bond for the money so collected.' § 429. Authentication of judgments. — The form and man- ner of the authentication of judgments prescribed by act of congress is as follows: "The records and judicial proceedings of the courts of any state or territory, or of any such country " (meaning " any country subject to the jurisdiction of the United States "), " shall be proved or admitted in any court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certifi- cate of the judge, chief justice, or presiding magistrate, that the Campbell v. Rankin, 99 TJ. S. 261 ; Steam Packet Co. v. Sickles, 24 How. Russell V. Place, 94 U. S. 606; Crom- 333. well V. Sao County, 94 U. S. 351; ^Barr v. Gratz, 4 Wheat. 213; Davis V. Brown, 94 U. S. 423; Wash- Webb v. Den, 17 How. 577. ington, Alexandria & Georgetown 3 Williams v. United States, 1 How. 290. '§§ 430, 431.] EVIDENCE. 473 said attestation is in due form." ' A substantial compliance with this statute is sufficient.'' § 430. Authentication of foreign judgments. — " Foreign judgments are authenticated : 1. By an exemplification uijder the great seal. 2. By a copy proved to be a true copy. 3. By the certificate of an officer authorized by law, which certificate itself must be properly authenticated. These are the usual, and appear to be the most proper, if not the only, modes of veri- fying foreign judgments. If they be all beyond the reach of the party, other testimony, inferior in its nature, might be re- ceived." ' ^ §431. Anthentication of legislative acts. — "The acts of the legislature of any state or territory, or of any counti*y sub- ject to the jurisdiction of the United States, shall be authenti- cated by having the seals of such state, territory, or country affixed hereto."^ Under and by virtue of this act of congress, copies of the legislative acts of the several states, authenticated by having the seal of the state affixed thereto, are conclusive evidence of such acts, in the courts of other states, and of the Union. 'No other or further formality is required ; and the seal itself is supposed to import absolute verity. The annexation of the seal must, in the absence of all contrary evidence, always be presumed to be by a person having the custody thereof, and competent authority to do the act.* Copies of the journals of either house of a state legislature, certified by the secretary •of state, and the printed journals thereof, published in obedi- ence to law, are both competent evidence of the proceedings in the legislature.' The authentication of legislative acts, pro- vided for by act of congress, was intended as evidence only of the existence of such acts, and not to give them any greater validity or effect than that which they had in the state from which they are accredited; it merely provides a mode of prov- ing public acts and records.'' lU. S. R S., sec. 905. » United States v. Johns, 4 Dall. 2Carpenterv. Strange, 141 U. S. 87, 413; United States v. Amedy, 11 106; Maxwell v. Stewart, 33 Wall. 77. Wheat. 393. 3 Marshall, C. J., in Church v. Hub- « Post v. Supervisors, 105 U. S. 668. fcart, 3 Cranch, 187. And see also ' Town of South Ottawa v. Perkins. Ennis v. Smith, 14 How. 400. 94 U. S. 360. 4U. S. R.S., sec.905. 474 FEDERAL EQUITY PEOCEDUEE, [§§ 432, 433. § 432. Authentication of foreign laws.— A foreign written law may be received as authentic, when it is found in a statute book, with proof that the book has been oflBLcially published by the government which made the law. As to the manner of authenticating a foreign law, there is no rule except this: that no proof shall be received, which presupposes better testi- mony behind, and attainable by the party. Such law may be verified by an oath, or by an exemplification" of a copy, under the great seal of a state, or by a copy proved to be a true copy by a witness who has examined and compared it with the orig- inal, or by a certificate of an officer, properly authorized by law to give the copy, which certificate must be duly proved. The unwritten law of a foreign nation must be proved by the parol testimony of expert witnesses. The rule of the supreme court of the United States is, that the laws of a foreign country, de- signed only for the direction of its own affairs, are not to be noticed by other countries, unless proved as facts; and, that the sanction of an oath is required for their establishment, unless they can be verified by some other such high authority, which the law respects not less than the oath of an individual.^ § 433. Proof of records from other states kept in offices not appertaining to courts. — "All records and exemplifica- tions of books, which may be kept in any public office of any state or territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other state or territory, or in any such country, by the attestation of the keeper of said records or books, and the seal of his office an- nexed, if there be a seal, together with a certificate of the pre- siding justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the state, or territory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenti- cated by the clerk or prothonotary of the said court, who shall certify under his hand and the seal of his office that the said presiding justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor, or keeper of the 1 Ennis v. Smith, 14 How. 400; Church v. Hubbart, 2 Cranoh, 187. § 434.] EVIDENCE. 475 great seal, it shall be under the great seal of the state, terri- tory, or country aforesaid in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the state, territory, or country, as aforesaid, from which they are taken." ^ § 434. Copies of records of the general land office.— " Copies of any records, books, or papers in the general land office, authenticated by the seal and certified by the commis- sioner thereof, or, when his o^ce is vacant, by the principal clerk, shall be evidence equal with the originals thereof. And literal exemplifications of any such records shall be held, when so introduced in evidence, to be of the same validity as if the names of the officers signing and countersigning the same had been fully inserted in such records." ^ And " the commissioner of the general land office shall cause to be prepared, and shall certify, under the seal of the office, such copies of records, books, and papers on file in his office, as may be applied for, to be used in evidence in courts of justice." ' The record in the volume kept in the general land office at Washington for the record- ing of patents for land issued by the United States, is evidence of the grant, but is not the grant itself; such record is evi- dence of equal dignity with the patent, because, like the patent, it shows that a patent containing the grant has been issued, and the same defenses can be made against the record which could be made against the patent itself.* Certified copies from the land office at Washington, concerning the location of land warrants, are admissible in evidence, equally with the originals.* The words, " evidence equally with the originals," as used in the act of congress, were not intended to mean that in all cases the copy should have the same probative force as the original instrument, but that it should be regarded as of the same class, in the grades of evidence, as to written and parol, and primary and secondary.* 1 U. S. R. S., sec. 906. « Culver v. Uthe, 133 U. S. 655. 2 U. S. R. S., sec. 891. * Campbell v. Laclede Gas Co., 119 3 U. S. R. S., sec. 2469. U. S. 445. *McGarrahan v. Mining Co., 96 U. S. 316. 476 FEDERAL EQUITY PEOOEDUEE. [§§ 4:35-438. § 435. Copies pf foreign laws and records relating to land titles in the United States. — " It shall be lawful for any keeper or person having the custody of laws, judgments, orders, de- crees, journals, correspondence, or other public documents of any foreign government or its agents, relating to the title to lands claimed by or under the United States, on the applica- tion of the head of one of the departments, the solicitor of the treasury, or the commissioner of the general land office, to authenticate Copies thereof under his hand and seal, and to cer- tify them to be correct and true copies of such laws, judgments, orders, decrees, journals, correspondence, or other public docu- ments, respectively; and when such copies are certified by an American minister or consul, under his hand and seal of office, to be true copies of the originals, they shall be sealed up bj'" him and returned to the solicitor of the treasury, who shall file them in his office, and cause them to be recorded in a book to be kept for that purpose. A copy of any such law, judgment, order, decree, journal, correspondence, or other public docu- ment, so filed, or of the same so recorded in said book, may be read in evidence in any court, where the title to land claimed by or under the United States may come into question, equally with the originals." ^ § 436. Copies of department records and papers. — "Copies of any books, records, papers, or documents in any of the exec- utive departments, authenticated under the seals of such de- partments, respectively, shall be admitted in evidence equally with the originals thereof." ^ § 437. Copies of records and documents in the office of the solicitor of the treasury. — " Copies of any documents, records, books, or papers in the office of the solicitor of the treasury, certified by him under the seal of his office, or, when his office is vacant, by the officer acting as solicitor for the time, shall be evidence equally with the originals." ' § 438. Copies of instruments and papers in the comp- troller's office. — " Every certificate, assignment, and convey- ance executed by the comptroller of the currency, in pursuance of law, and sealed with his seal of office, shall be received in » U. a R. S., sec. 907. » U. S. R. S., sec. 883. »,U. S. R. S., sec. 883. §§ 439, 440.] EVIDENCE. 477 evidence in all places and courts ; and all copies of papers in his office, certified by him and authenticated by the said seal, shall in all cases be evidence equally with the originals. An impression of such seal directly on the paper shall be as valid as if made on wax or wafer." ^ § 439. Copies of organization certificates of national banks. " Copies of the organization certificate of any national banking association, duly certified by the comptroller of the currency, and authenticated by his seal of office, shall be evidence in all courts and places within the jurisdiction of the United States of the existence of the associa^on, and of every matter which could be proved by the production of the original certificate." * § 440. Transcripts from books of tlie treasury departr ment. — " When suit is brought in any case of delinquency of a revenue officer, or other person accountable for public money, a transcript from the books and proceedings of the treasury de- partment, certified by the register and authenticated under the seal of the department, or, when the suit involves the accounts of the war or navy departments, certified by the auditors re- spectively charged with the examination of those accounts, and authenticated under the seal of the treasury department, shall be admitted as evidence, and the court trying the cause shall be authorized to grant judgment and award execution accordingly. And all copies of bonds, contracts, or other papers relating to, or connected with, the settlement of any account between the United States and an individual, when certified by the register, or by such auditor, as the case may be, to be true copies of the originals on file, and authenticated under the seal of the department, may be annexed to such transcripts, and shall have equal validity, and be entitled to the same degree of credit which would be due to the original papers if produced and authenticated in court: Provided, that where suit is brought upon a bond or other sealed instru- ment, and the defendant pleads non est faotum, or makes his motion to the court, verifying such plea or motion by his oath, the court may take the same into consideration, and, if it ap- pears to be necessary for the attainment of justice, may require 1 U. S. R a, sec. 884 2 U. S. E. S., sec. 885. 478 FEDERAL EQUITY PKOCEDUBE. [§§ 441-443. the production of the original bond, contract, or other paper specified in such affidavit." ' § 441. Copies af postofflce records and of auditor's state- ment of accounts. — " Copies of the quarterly returns of post- masters, and of any papers pertaining to the accounts in the office of the sixth auditor, and transcripts from the money order account books of the postoffice department, when certi- fied by the sixth auditor under the seal of his office, shall be admitted as evidence in the courts of the United States, in civil suits and criminal prosecutions ; and in any civil suit, in case of delinquency of any postmaster or contractor, a statement of the account, certified as aforesaid, shall be admitted in evi- dence, and the court shall be authorized thereupon to give judgment and award execution, subject to the provisions of law as to proceedings in such civil suits." * § 443. Copies of statements of demands by the postoilice department. — "In all suits for the recovery of balances due from postmasters, a copy, duly certified under the seal of the sixth auditor, of the statement of any postmaster, special agent, or other person, employed by the postmaster-general or the auditor for that purpose, that he has mailed a letter to such de- linquent postmaster at the postoffice where the indebtedness accrued, or at his last usual place of abode; that a sufficient time has elapsed for said letter to have reached its destination in the ordinary course of the mail ; and that payment of such balance has not been received, within the time designated in his instructions, shall be received as sufficient evidence in the courts of the United States, or other courts, that a demand has been made upon the delinquent postmaster ; but when the account of a late postmaster has been once adjusted and settled, and a demand has been made for the balance appearing to be due, and afterward allowances are made or credits entered, it shall not be necessary to make a further demand for the new balance found to be due." ' § 443. Copies of the records of the patent office.— ""Writ- ten or printed copies of any records, books, papers, or drawings belonging to the patent office, and of letters-patent authenti- 1 U. S. E. S., sec. 886. 2 U. S. R. S., sec. 889. 3 U. S. R. S., sec. 890. §§ 444-447.] EVIDENCE. 479 cated by the seal aud certified by the commissioner or acting commissioner thereof, shall be evidence in all cases wherein the originals could be evidence; and any person making appli- cation therefor, and paying the fee required by law, shall have certified copies thereof." ^ §444. Copies of foreign letters-patent.— " Copies of the specifications and drawings of foreign letters-patent, certified as provided in the preceding section, shall be prima facie evi- dence of the fact of the granting of such letters-patent, and of the date and contents thereof." "^ § 445. Printed copies of specifications and drawings of patents. — " The printed copies of specifications and drawings of patents, which the commissioner of patents is authorized to print for gratuitous distribution, and to deposit in the capitols of the states and territories, and in the clerk's offices of the district courts, shall, when certified by him and authenticated by the seal of his office, be received in all courts as evidence of all matters therein contained." ' §446. Extracts from the journals of congress. — "Ex- tracts from the journals of the senate, or of the house of rep- resentatives, and of the executive journal of the senate when the injunction of secrecy is removed, certified by the secretary of the senate or by the clerk of the house of representatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have if produced and authenticated in court." * § 447. Copies of recoi'ds in the ofRces of consuls and com- mercial agents. — " Copies of all official documents and papers in the office of any consul, vice-consul, or commercial agent of the United States, and of all official entries in the books or records of any such office, certified under the hand and seal of such officer, shall be admitted in evidence in the courts of the United States."" 1 U, 8. R. a, see. 893. < U. S. R. S., sec. 895. 2 U. S. R. S., S60. 893. » U. S. R S., sees. 896, 1707. 3 U. S. R. S., sec. 894 480 TEDEEAL EQUITY PEOCEDTJKE. [§§ 448-450. § 448. Little & Brown's edition of the United States stat- utes and treaties to be evidence. — "The edition of the laws and treaties of the United States, published by Little & Brown, shall be competent evidence of the several public and private acts of congress, and of the several treaties therein contained, in all the courts of law and equity and of maritime jurisdic- tion, and in all the tribunals and public offices of the United States, and of the several states, without any further proof or authentication thereof." ' § 449. Proof of the execution of deeds and other private writings. — It is a rule of evidence in courts of common law and equity, that if a party relies upon a deed as evidence to support his suit or defense, he must produce in evidence the original deed, and prove its execution ; he must prove (1) the execution of the deed, (2) its delivery, and (3) the identity of the grantor in the deed.^ If the deed is not attested by sub- scribing witnesses, its execution and delivery are proved by proof of the signature of the grantor; but where the execution of a deed is attested by subscribing witnesses, the execution and delivery of the deed and the identity of the grantor should be proved by the evidence of the subscribing witnesses, if they are alive and can be produced ; ' and the proof of these facts by the testimony of one subscribing witness, where there are several, is sufficient.* § 450. Same — Secondary evidence of execution. — Where the attesting witness " is dead, or cannot be found, or is with- out the jurisdiction of the court, or is otherwise incapable of being produced, the next best secondary evidence is the proof lU. S. R a, see. 908; 18 U. S. Stat. ^Gresley's Eq. Ev. 119, 130; Clark at L., ch. 333, sec. 8, p. 114; 31 TJ. S. v. Courtney, 5 Pet. 341; Whitaker v. Stat, at L., Joint Resolution, p. 808; Salisbury, 15 Pick. 584; International 36 U. S. Stat, at L., oh. 78, see. 3, p. 50. & Great Northern Ey. Co. v. McEae, 2Gresley's Eq. Ev. 98, 130, 131; 1 83 Tex. 614; MoPherson v. Eathbone, Gilbert's Law of Ev. 83, 84, 88; Fran- 11 Wend. 96; Jackson v. Waldron, IS ces V. Hazelrig, 1 A. K. Marsh. (Ky.) Wend. 178; Willoughby v. Carlton, 9 98; Clark v. Courtney, 5 Pet. 819; Johns. 13a Stebbins v. Duncan, 108 U. S. 33; «1 Gilbert's Ev. 83; Gresley's Eq. Hanrick v. Patrick, 119 U. S. 156; Ev. 130; Stebbins v. Duncan, 108 Stampers v. Griffin, 30 Go. 313; Bev- U. S. 83; Hanrick v. Patrick, 119 erly v. Burke, 9 Ga. 440; Williams v. U. 8. 156. Keyser, 11 Fla. 234. § 451.] EVIDENCE. 481 of his handwriting; and that, when proved, affords prima facie evidence of a due execution of the instrument, for it is pre- sumed that he would not have subscribed his name to a false attestation. If, upon due search and inquiry, no one can be found who can prove his handwriting, there is no doubt that resort may then be had to proof of the handwriting of the party who executed the instrument; indeed, such proof may always be produced as corroborative evidence of its due and valid execution, though it is not, except under the limitations above suggested, primary evidence. "Whatever may have been the origin of this rule, and in whatever reasons it may have been founded, it has been too lo9g established to be disregarded, or to justify an inquiry into its original correctness.^ "When the execution of a deed or other private writing is to be authen- ticated by proof of the handwriting of the subscribing wit- nesses, proof of the handwriting of one witness will be suffi- cient.^ § 4:51 . Exceptions to the rule requiring proof of execu- tion of private writings — Ancient instruments. — There are some well-established exceptions to the rule of evidence re- quiring proof of the execution of .deeds and private writings, and one of the exceptions is as to ancient instruments. This exception has been stated by the United States supreme court in the following language: "The rule is that an ancient deed may be admitted in evidence, without direct proof of its exe- cution, if it appears to ,be of the age of at least thirty years, 1 Clark Y. Courtney, 5 Pet. 318, 341, Fitzhugh v. Croghan, 3 J. J. Marsh. 343, 343, 344; Williams v. Keyser, 11 (Ky.) 439; Spring v. Insurance Co., 8 Fla. 334; Cox v. Davis, 17 Ala. 714; Wheat. 369; Howard v. Snelling, 33 Mardis v. Sohackeford, 4 Ala. 503; Ga. 195; Prince v. Blackburn, 3 East, Lazus V. Lewis, 5 Ala. 457; Watts v. 350; Jackson v. Chamberlain, 8 Kilbourn, 7 Ga. 358; Settle v. Alison, Wend. 630; Henry v. Bishop, 3 Wend. 8 Ga. 301; Goody v. Gress Lumber 575; Foote v. Cobb, 18 Ala. 585; Eob- Co., 83 Ga. 793; Hudson v. Puett, 86 ertson v. Allen, 16 Ala. 106; Bennett Ga. 341; Richmond & Danville Ry. v. Taylor, 9 Ves. 381; Tinnin v. Price, Co. V. Jones, 93 Ala. 318; McPherson 31 Miss. 433; Goss v. Tracy, 1 P. V. Rathbone, 11 Wend. 96; Jackson Wms. 386; Traedor v. Hyams, 153 v. Waldron, 13 Wend. 178; Wil- Mass. 536; Stebbins v. Duncan, 108 loughby V. Carlton, 9 Johns. 136; U. S. 33; Hanrick v. Patrick, 119 Whitaker v. Salisbury, 15 Pick. 534; U. S. 156. Jackson v. Gager, 5 Cow. 383; I. & 2 Stebbins v. Duncan, 108 U. S. 33; G. N. Ry. Co. V. McRae, 83 Tex. 614; Hanrick v. Patrick, 119 U. S. 156. 31 482 FEDEEAL EQUITY PEOCEDTJEE. [§ 452. when it is found in proper custody, and either possession under it is shown, or some other corroborative evidence of its authen- ticity, freeing it from all just grounds of suspicion." ^ Posses- sion under an ancient deed is always sufficient, as preliminary proof, to authorize the deed to be read in evidence without proof of execution, but such possession is not indispensable. An ancient deed may be introduced in evidence without proof of its execution, though possession may not have been held for thirty years in accordance therewith, if such account be given of the deed as may be reasonably expected under all the cir- cumstances of the case, and as will afford the presumption that it is genuine. The genuineness of such instruments may be shown by other facts as well as that of possession. And when proof of possession cannot be had, it is within the very essence of the rule to admit the instrument, where no evidence justify- ing suspicion of its genuineness is shown, and it is found in cus- tody of those legally entitled to it.' When ancient deeds are found among the file papers in a suit in a court of record of the county where the lands to which they refer are situated, in the custody of an officer charged by law with the care and safe- keeping of the records of such court, and it appears that such deeds were filed in such court for a necessary and proper use in such suit, the record in such suit is admissible in evidence against persons not parties or privies, to prove the collateral fact of the antiquity of the original deeds offered in evidence, and to account for their custody.' § 452. Same — When the deed is produced by the adverse party claiming an interest under it. — Where the adverse party, pursuant to a legal duty, produces a deed, and claims a beneficial interest under it in the same suit, he thereby admits its execution and dispenses with further proof thereof; but the admission of the execution results f I'om such privity of interest, 1 Applegate v. Lexington & Carter Howard, 79 Ky. 373; Jackson v. Laro- Countj Mining Co., 117 U. S. 355. way, 3 Johns. Cas. 283; Hewlet v. 2 Applegate v. Lexington & Carter Cock, 7 Wend. 871 ; Jackson v. Lu- County Mining Co., 117 U. S. 255; quere, 5 Cowen, 221; Fulkerson v. Barr v. Gratz, 4 Wheat. 213; Winn v. Holmes, 117 U. S. 889. Patterson, 9 Pet. 663; Stoddard v. 8 Applegate v. Lexington & Carter Chambers, 3 How. 284; Caruthers County Mining Co., 117 TJ. S. 255; V. Eldredge, 13 Gratt. 670; Harlan v. Barr v. Gratz, 4 Wheat 213. '§§ 453, 454:.] EVIDENCE. 483 ■and not because of the possession of the instrument by the party against whoni it is offered." § 453. Same — When defendant by his answer admits the execution. — "When a deed or other private writing is directly put in issue by a bill in equity, and the defendant, in his answer, for the purposes of the suit, distinctly admits the execution of the deed, such admission is, for all purposes of that suit, con- clusive upon the defendant, operating as an estoppel to the in- troduction of conflicting testimony, and dispenses with the necessity of any proof of execution.^ • § 454. Proof of the execution of wills and testaments de- vising real estate at common law. — At common law a will devising land is in the nature of a conveyance; an acquisition •of land by devise is an acquisition by purchase. The eccle- :siastical courts of England had no power to authenticate a will devising real estate; and until the enactment of a recent statute there was no provision in the law of England for the probate of wills of real estate by the probate courts ; prior to recent legislation in England, if the ecclesiastical courts ad- mitted to probate a will disposing of both personal and real property, the decree of probate, in so far as the real estate was -concerned, was coram, nonjudice and void. At common law, in an action of ejectment by the devisee against the heir-at- law, the plaintiff was required to produce the original will in ■court upon the trial and prove its execution by at least one ■witness in the same manner that proof was made at common law of the execution of deeds and other private writings. At law a single witness was suflBicient to prove all the requisites •of the execution of a will and testament devising real estate, .although the statute of frauds enacted that wills " shall be in writing, and signed by the devisor, or by some other person in his presence and by his express directions, and shall be at- tested and subscribed in the presence of the devisor by three or four credible witnesses." But in proving a will devising 1 Rhodes v. Selin, 4 Wash. 715, Fed. ley, 17 Johns. 158; Herring v. Rogers, ■Cas.ll,740;Williamsv.Keyser,llFla. 30 Ga. 615; McGregor v. Wait, 10 334; Gresley's Eq. Ev. 118; Pearce v. Gray, 72. Hooper, 3 Taunt. 60; Orr v. Morris, 3 2 Gresley's Eq. Ev. 9, 10, 119, 130; Bro. & Bing, 139; Jackson v. Kings- Smith v. Gale, 144 U. S. 509. •484: FEDERAL EQTTITr PEOCEDUEE. [§ 454. real estate, in chancery, against the heir-at-law, the rule was more strict and rigid. In equity, in order to prove the will against the heir, it was required that all the witnesses should be examined; if a witness was dead, or insane, or abroad, or had not been heard from for many years and could not be found, his evidence was dispensed with, and it was suffi- cient to pVove his handwriting. In equity, where the object and purpose of the suit were to establish a will against the heir, it was necessary to prove: (1) The due execution of the will ; and (2) the sanity of the testator. Lord Camden, speak- ing of the requisite proof of a will devising real estate, in equity, against the heir, said: "Sanity is the great fact the witness is to speak to when he comes to prove the attesta- tion; and that is the true reason why a will can never be proved as an exhibit viva voce in chancery, though a deed may be ; for there must be liberty to cross-examine to this fact of sanity. From the same consideration it is become the invari- able practice of that court never to establish a will unless all the witnesses are examined ; because the heir has a right to proof of sanity from every one of them whom the statute has placed about his ancestor." Although, upon a bill in equity to establish the will against the heir, such will may have been clearly proved by the depositions of the witnesses, upon inter- rogatories, according to the methods of obtaining evidence in suits in equity, still the heir-at-law could claim as a right an issue devisavit vel non, sent for trial before a jury in a court of common law; and, upon such trial before the jury, he had the right to have the original will produced and all the attesting witnesses examined, except such as were dead, or insane, or abroad, or had not been heard from for many years and could not be found, in which case the evidence of such witness was dispensed with, it being suiBcient to prove his handwriting.' A will and testament thirty years old, reckoning from its date, was at common law admitted in evidence without proof of execution.^ 13 Daniell, 436, 437, 438, 489; Gres- 47; Currell v. Villars, 72 Fed. R. 334; ley's Eq. Ev. 134, 135; Darby v. Jaunce v. Thorne, 3 Barb. Ch. (N. Y.) Mayer, 10 Wheat. 465; Robertson v. 40. PickreU, 608, 617; Sneed v. Ewing, 5 23 Daniell, 435, 436; Gresley's Eq. J. J. Marsh. 460; S. C, 37 Am. Dec. Ev. 134, 135. §§ 455, 456.] EVIDENCE. 485 § 455. The coarts of the United States have no jurisdic- tion to talie proof of the execution of wills and testaments. The courts of the United States have no probate jurisdiction, nor any jurisdiction to take and receive the proof of the execu- tion of wills and testaments; and they must receive the judg- ments, sentences and decrees of the state probate courts to which the jurisdiction over testamentary matters is committed, as conclusive of the execution, validity and contents of wills and testaments.^ § 456. Proof of the execution and contents of lost instru- ments. — The general rule of evidence is that, if a party in- tends to use a deed or any other private instrument in evidence, he ought to produce the original, if he has it in his possession, or can compel its production ; but if the instrument be in the possession of the other party, who refuses to produce it after a reasonable notice, or if the original be lost or destroyed, sec- ondary evidence, which is the best that the nature of the case will allow, will, in such case, be admitted. The party, after proving any of those circumstances to account for the absence of the original, may read a counterpart, or, if there be no coun- terpart, an examined copy, or, if there should not be an ex- amined copy, he may give parol evidence of the contents. Where a writing has been voluntarily destroyed with an intent to produce a wrong or injury to the opposite party, or for fraudulent purposes, or to create an excuse for its non-produc- tion, in such case the secondary evidence ought not to be re- ceived on behalf of the party in default ; but where the de- struction happens through mistake or accident, the party destroying the instrument cannot be charged with default.^ But the execution of a lost deed must be proved in the same manner that the execution of other deeds is proved.' The rule that the loss of a paper ought to be established before its contents can be proved is well settled and ought to be main- tained.* 1 Gaines v. Chew, 2 How. 619; Fou- Wheat. 581; Sebree v. Dorr, 9 Wheat, vergne v. City of New Orleans, 18 558; Stebbins v. Duncan, 108 U. S. 33. How. 470; Case of Broderiok's Will, 3 Stebbins v. Duncan, 108 U. S. 33. 21 Wall. 503; Ellis v. Davis, 109 U. S. ■• Bouldin v. Massie, 7 Wheat. 133; 485; Simmons v. Saul, 138 U. S. 439. Minor v. Tillotson, 7 Pet. 99; Dwyer 2Riggs V. Tayloe, 9 Wheat. 488; v. Dunbar, 5 Wall. 318. Benuer v. Bank of Columbia, 9 486 FEDEEAL EQUITY PEOCEDTJEE. [§§ 457-461, § 457. Same — Lost will. — A lost, suppressed or spoliated will of real estate comes within the rule, and secondary evidence is admissible to establish its execution and contents, and secure its probate by the court having the proper and competent ju- risdiction. " If a will, duly executed and not revoked, is lost, destroyed or mislaid, either in the life-time of the testator, without his knowledge, or after his death, it may be admitted to probate upon satisfactory proof being given of its having been so lost, destroyed or mislaid, and also of its contents." " But to entitle a party to give parol evidence of a will alleged to be destroyed, where there is not conclusive evidence of its absolute destruction, the party must show that he has made diligent search and inquiry after the will in those places where it would most probably be found, if in existence."' §458. Same — Judicial records. — "It is an axiom in the law of evidence that the contents of any written instrument lost or destroyed may be proved by competent evidence. Judi- cial records and all other documents of a kindred character are within the rule." ' § 459. Same — Lost deposition. — Where a deposition has been lost without the fault of the party claiming the benefit of it, he is not required to supply its place by retaking the deposition of the witness, but may adduce secondary evidence of its contents.' § 460. Same — When the instrument is beyond the juris- diction of the court. — The supreme court of the United States has declared that: "It is well settled that if books or papers necessary as evidence in a court in one state be in the posses- sion of a person living in another state, secondary evidence, without further showing, may be given to prove the contents of such papers, and notice to produce them is unnecessary." * § 461. Proof of exhibits, viva voce, at the hearing. — It was a rule of the High Court of Chancery of England, as an- cient as the court itself, that the court would not receive oral 1 Gaines v. Hennen, 34 How. 556- Hogan v. Kurtz, 94 U. S. 773; United 562. States v. Castro, 24 How. 346. i* Burton v. Driggs, 20 WalL 125; 3 Burton v. Driggs, 20 Wall. 135. * Burton v. Driggs, 30 WalL 125. § 461.] EVIDENCE. 48'?' testimony at the hearing ; but to this rule there was one well- established exception, viz. : the court would permit an exami- nation viva voce at the hearing to prove exhibits.* Upon this subject Mr. Daniell states the practice as follows: "An exam- ination viva voce at the hearing is admitted where written doc- uments essential to the justice of the cause have been neglected to be proved before publication has passed in the suit, or where the plaintiff, finding sufficient matter confessed in the defend- ant's answer to ground a decree upon, proceeds to a hearing of the cause upon bill and answer only. The defendant's an- swer in such case being taken as true, no examination of wit- nesses is requisite ; the proof, therefore, of the documents re- ferred to in the pleadings, when such proof is necessary, must be by witnesses viva voce at the hearing. . . . Deeds, bonds or other instruments which require proof of their due execu- tion by a subscribing witness or witnesses, or promissory notes, bills of exchange, letters or receipts, of which proof must be made of the handwriting of the persons writing or subscribing the same, are all considered as exhibits which may be proved viva voce. It is to be observed that, with the exception of docu- ments coming out of the hand of a public officer having the care of such documents (which are proved by the mere exam- ination of the officer to that fact), no exhibit can be proved viva voce at the hearing that requires more than the proof of the execution, or of handwriting to substantiate it; if it be any- thing that admits of cross-examination or that requires any evidence besides that of handwriting, it cannot be received. This rule is strictly adhered to. . . . "Where a deed was V offered in evidence the subscribing witnesses to which were dead, and witnesses were produced at the hearing to prove the handwriting of such witnesses, they were not allowed to be examined, because something more, viz., the death of the wit- n.esses, was necessary to be proved. For the same reason a will of real estate cannot be proved viva voce, because, besides the mere execution of the will, the sanity of the testator must be established. ... If a document is impeached by the answer 13 Daniell, 441-445; Gresley's Eq. Johns. Ch. 481; 1 Hoff. Ch. Prac. 490; Ev. 136-139; 1 Smith's Ch. Prao. 414, Barrow v. Ehinelander, 1 Johns. Ch. 415; Wood v. Mann, 3 Sumn. 316, Fed. 559. Cas. 17,953; Consequa v. Fanning, 3 488 FEDEEAL EQUITY PEOCEDUEE. [§ 461. of a defendant it cannot be proved viva voce on the part of the plaintiff against such defendant. . It is only, however, where the execution or the authenticity of a deed is impeached that it cannot be proved viva voce; if the validity of it only is disputed it may be so proved. It is to be observed that the refusing a party liberty to prove exhibits viva voce at the hear- ing of a cause in equity, where it can be done, is irregular and unprecedented. It is, however, necessary, in order to authorize the examination of a witness viva voce at the hearing of a cause, that the party intending to make use of the exhibits should pre- viously obtain an order for that purpose. This order is never made on the application of the contrary party, but may be ob- tained by the party requiring it, by motion in court without notice ; and it is often granted during the hearing of the cause ; in which case the cause will be ordered to stand over for the purpose of enabling the order to be served and acted upon. The order, when drawn up, must describe the exhibits to be proved ; and it is always made as of course, ' saving all just ex- ceptions.' The order being drawn up, passed and entered, a copy thereof must be served in the usual manner upon the ad- verse clerk in court, or his agent, two days previous to the hear- ing of the cause. "When the cause is called on, and the exhibit required to be proved, the original order and the exhibit de- scribed therein, together with the witness to prove the same, must be produced to the registrar in court, who will administer the usual oath; the examination also of the witnesses, as to the execution, is performed by the registrar. . . . No docu- ments but those mentioned or described in the order can be thus proved at the hearing; and as the order saves just excep- tions, all objections which can be taken to the admissibility of the document as evidence may then be urged by the opposing party. The attendance of an unwilling witness to prove an ex- hibit at the hearing may be enforced by process of subpoena." ^ The old chancery court of New York held that papers and writ- ings of every description might be proved viva voce at the hear- ing, and the witnesses cross-examined at the , discretion and under the direction of the court, but that no paper could be proved as an exhibit at the hearing unless satisfactory reason was shown to the court why it was not regularly proved in 1 3 Daniell, 441-445. § 462.] EVIDENCE. 489 the usual way before the examiner.^ An equity rule provides that : " Upon due notice given as prescribed by previous order, the court may at its discretion permit the whole or any specific part of the evidence to be adduced orally in open court on final hearing." ^ Under this rule the court would certainly have full power and discretion to permit the cross-examination of wit- nesses when called to prove exhibits viva voce at the hearing. In all cases where witnesses are examined orally before the court their testimony should be reduced to writing and made a part of the record, or it will be entirely disregarded on ap- peal.' §462. The production of documents by defendant as evi- dence for plaintiif. — "We have shown in the chapter on the original bill that, as a general rule, every plaintiff in equity is entitled to a discovery from the defendant, upon oath, of all the matters of fact which are well pleaded in the bill, and which are material to the proof of the plaintiff's case ; that the plaintiff is entitled to such discovery from defendant either in aid of proof to be made by the examination of witnesses or to supply the want of such proof ; that the discovery to which the plaintiff is entitled is not confined to a discovery of facts resting merely in the knowledge of defendant, but extends to a discovery of deeds, papers and writings of every description in his possession or power, the contents of which are material to the proof of the plaintiff's case. But, to entitle the plaintiff to a production of any documents in the possession or power of the defendant, there must be a concurrence of the following precedent conditions, viz. : (1) The plaintiff must allege in his bill that the defendant has in his possession or power docu- ments relating to the matters mentioned in the bill which are relevant testimony to prove the plaintiff's allegations, or some of them ; (2) the defendant must, in his answer, admit his pos- session of, or power over, the documents the production of which is sought; (3) the defendant must, in his answer, or in some schedule to it, describe the documents the production of which is sought; (4) the plaintiff must show from the answer 1 Consequa v. Fanning, 3 Johna Ch. " Equity Rule 67. 481. 8 Blease v. Garlington, 93 U. S. 1-10. 490 FEDERAL EQUITY PEOCEDTJEB. [§ 463. of defendant that the documents are relevant testimony to prove the plaintiff's case.^ When the above conditions exist, then, according to the Eng- lish practice, the plaintiff served upon the defendant a notice of a motion for an order upon him to produce the documents within a time to be limited by the order ; if, upon a hearing of the motion, the court found that the plaintiff was entitled to the production, an order was made directing the defendant to deposit the documents in the hands of his clerk in court, with liberty to the plaintiff to inspect them and take copies. The order also directed the defendant's clerk in court to pro- duce such documents before the examiner that their execution might be proved, and also to produce them before the court upon the hearing of the cause that they might be used by the plaintiff as evidence to prove his case.^ By the force of the United States equity rules this practice will be followed sub- stantially in the federal courts.' §463. Passing publication of the testimony. — According to the English practice the depositions of the witnesses were kept secret until the time for taking testimony had expired, and then publication was passed. In regard to the practice on this subject Mr. Daniell says : " Publication, in a legal sense, is the open showing of depositions, and giving copies of them to the parties, by the clerks or examiners in whose custody they are. By the orders of the court the depositions of witnesses are not to be disclosed by any of the persons before whom they were taken or by their clerks, but are to be closely kept, if taken in town, by the examiners at their office ; if by commis- sioners in the country, by the sworn clerk to whom the com- mission, after its execution, was delivered, until publication passes. Publication passes either by consent or by rule. When both the plaintiff and defendant have examined such witnesses as they think proper, and are ready to go to a hearing, the clerks in court on both sides may pass publication by consent, which is done by signifying the same in one of the rule-books of the six clerks office, upon which publication immediately passes. A rule to pass publication is in the nature of an order of the court directing that publication shall pass unless cause 1 Ante, § 118. 22 Smith's Ch. Prao. 660-666. s Equity Rule 90. § 464.] EVIDENCE. 491 is shown by the other side." ' When an application was made for an order of the court to pass publication, it was necessary to serve notice on the opposite side.^ In suits in equity in the circuit courts of the United States, the English practice in regard to passing publication is, in its substantial features, preserved and followed by the express pro- visions of the federal statutes and equity rules. When deposi- tions are taken they are sealed up and transmitted to the clerk of the court and are kept sealed until opened in court.' An equity rule provides that: "Three months and no more shall be allowed for the taking of testimony after the cause is at issue, unless the court or a judge thereof shall, upon special cause shown by either party, enlarge the time; and no testi- mony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon the return of the commissions and depositions containing the testimony into the clerk's office, publication thereof may be ordered in the clerk's office by any judge of the court upon due notice to the parties, or it may be enlarged, as he may deem reasonable under all the circumstances. But by consent of the parties publication of the testimony may, at any time, pass in the clerk's office, such consent being in writing, and a copy thereof entered in the order books or indorsed upon the depositions or testi- mony." * § 461. 'Examination of witnesses ad informandura consci- entiam jndicis^ obsolete. — During the reign of Elizabeth a strange practice prevailed, of examining witnesses to inform the conscience of the judge only; such examination was allowed when the proofs regularly taken left some important issue in doubt, and the examination was had to clear such doubts and to inform the conscience of the court. Sometimes the court di- rected a witness to attend personally in court for oral examina- tion, and at other times a commission issued to take the depo- sitions of witnesses, and the depositions taken for this special purpose were delivered to the judge, sealed up. In some cases these depositions were taken by consent of both parties. These 1 2 Daniell, 562, 663. 3 U. S. E. S., sec. 865; Equity Rules, 2 3Daiiiell, 565, 566. 67,69. < Equity Eule 69. 492 FEDEEAL EQUITY PEOOEDUEE. [§§ 465, 466. depositions were not sent to the master when the case was re- ferred, nor to the judges when an issue or an action at law was directed to be tried, unless by consent. Ttis practice con- tinued to the time of Lord Bacon, who regulated it by order; but it has long been obsolete.^ (c?) Judicial !N"oticb. § 465. Judicial notice — General rule. — " Courts will take judicial notice of whatever is generally known within the limits of their jurisdiction ; and, if the judge's memory is at fault, he may refresh it by resorting to any means for that purpose which he may deem safe and proper." ^ Courts will take judi- cial notice of matters of common knowledge and of things in common use by the people.' " Some classes of facts are de- pendent more peculiarly upon the memory than upon the in- formation of the judge ; and when he is at fault (which must needs frequently happen, for they are often beyond the ordi- nary power of memory), documents of reference are brought to hig assistance. This is the case with respect to dates; for which the court will require no other proof than applying to an almanac. General history, the acts of our government, and the laws of the land, fall under this description. ... A perfect knowledge of the laws of the land, and the practice of the court, is an essential part of the judicial character. But as this is the language of theory, and the judge, in reality, often requires to be informed, or at least to have his memory refreshed, it frequently becomes necessary to prove to him particular points of law. The means of proof consists of acts of parliament, and precedents, decisions of similar cases, and, for matters of practice, sometimes the statements of the offi- cers." * § 466. Federal courts take judicial notice of the federal constitution and laws, — All of the courts of the United States 11 Spence, 380,381; Gresley's Eq. brought close sealed up to the court, Ev. 496; Order Jan. 29, 1618-1619; to peruse or publish as the court shall Bacon, Ch. No. 74 (Sand. Ord. 119). think good." This order provided that: "No wit- 2 Brown v. Piper, 91 U. S. 42. ness shall be examined after publi- 3 King v. Gallun, 109 U. S. 99; Ter- cation, except it be by consent or by hune v. Phillips, 99 U. S. 593. special order ad informandum con- * Gresley's Eq. Ev. 397, 401. scientiam jiuMeis, and then to be §§ 467-4?!. J EVIDENCE. 493 take judicial notice of the constitution and laws of the United States.^ § 467. Same — Corporations created by federal law.— The courts of the United States take judicial notice of the fact that a railroad company has been incorporated by an act of the congress of the United States.* §468. Same — Treaties made by the United States.— A treaty made under the authority of the United States is a law of the land, as much so as an act of congress, whenever its provisions prescribe a rule by which the rights of a citizen may be determined; and all cOurts, both state and federal, will take judicial notice of such treaty, and resort to it for a rule of decision, in cases before them, when the rights secured by it are of a nature to be enforced in a court of justice.' § 469. Same — Establishment of territorial governments. The courts of the United States take judicial notice of an act of congress creating and providing a temporary government for a territory of the United States, and of the powers con- ferred by the act upon the territorial government.* § 470. Federal courts take judicial notice of state laws. — It is a settled rule that the circuit courts of the United States, and the supreme court of the United States upon appeal or writ of error from the circuit courts, take judicial notice of the public laws and jurisprudence of every state in the Union.' §471. Same — United States supreme court on writ of error to state courts. — On a writ of error to the highest court of a state, the supreme court of the United States does not take judicial notice of the laws of another state.* In one of the 'Marburyv. Madison, ICranch, 137; v. Bunyan, 138 TJ. S. 633; Lamar v. Furman v. Nichol, 8 Wall. 44 Micou, 114 U. S. 318; Elwood v. Flan- 2 Texas & P. K. Co. v. Cody, 166 nigan, 104 U. S. 562; Junction E. R. U. S. 606. Co. V. Bank of Ashland, 13 Wall. 226; 3 United States v. Eauscher, 119 Cheever v. Wilson, 9 Wall. 108; Pen- U. S. 407. nington v. Gibson, 16 How. 65 ; 4 Brown V. Colorado, 106 U. S. 95; O wings v. Hull, 9 Pet. 607. Spokane Falls & N. R Co. v. Ziegler, " Hanley v. Donoghue, 116 TJ. S. 1, 167 U. S. 65. 7; Lloyd v. Matthews, 155 U. S. 337; 5 New York Fourth National Bank Railroad Co. v. Ferry Co., 119 U. a V. Francklyn, 130 U. S. 747; Gormly 615. 494 FEDEEAL EQUITY PEOCEDUEE. [§ 471. cases cited, -which was a writ of error to the court of appeals of the state of Maryland, the supreme court of the United States, discussing the rule upon this subject, said: " Congress, in the execution of the power conferred upon it by the constitution, having prescribed the mode of attestation of records of the courts of one state to entitle them to be proved in the courts of another state, and having enacted that records so authenticated shall have such faith and credit in every court within the United States. as they have by law or usage in the state from which they are taken, a record of a judgment so authen- ticated doubtless proves itself without further evidence ; and if it appears upon its face to be a record of a court of general jurisdiction, the jurisdiction of the court over the cause and the parties is to be presumed unless disproved by extrinsic evidence or by the record itself. But congress has not undertaken to prescribe in what manner the effect that such judgments have in the courts of the state in which they are rendered shall be ascertained, and has left that to be regulated by the general rules of pleading and evidence applicable to the subject. " Upon principle, therefore, and according to the great pre- ponderance of authority (as shown by the cases collected in the margin), whenever it becomes necessary for a court of one state, in order to give full faith and credit to a judgment rendered in another state, to ascertain the effect which it has in that state, the law of that state must be proved, like any other fact. . , . "When exercising an original jurisdiction under the con- stitution and laws of the United States, this court, as well as every other court of the national government, doubtless takes notice, without proof, of the laws of each of the United States. " But in this court, exercising an appellate jurisdiction, what- ever was matter of law in the court appealed from is matter of law here, and whatever was matter of fact in the court appealed from is matter of fact here. " In the exercise of its general appellate jurisdiction from a lower court of the United States, this court takes judicial notice of the laws of every state of the Union, because those laws are known to the court below as laws alone, needing no averment ' or proof. " But on a writ of error to the highest court of a state, in which the revisory power of this court is limited to determin- §§ 472, 473.] EVIDENCE. 495 ing whether a question of law depending upon the constitution, laws or treaties of the United States has been erroneously de- cided by the state court upon the facts before it — while the law of that state, being known to its courts as law, is of course within the judicial notice of this court at the hearing on error, — yet, as in the state court, the laws of another state are but facts, requiring to be proved in order to be considered, this court does not take judicial notice of them unless made a part of the rec- ord sent up. The case comes in principle within the rule laid down long ago by Chief Justice Marshall: 'that the laws of a foreign nation, designed only for the direction of its own affairs, are not to be noticed by the courts of other countries, unless proved as facts, and that this court, with respect to facts, is limited to the statements made in the record of the court below, cannot be questioned.' " ' The supreme court of the United States, upon a writ of error to the highest court of a state, does, however, take judicial no- tice of the law of another state, when by the local law that court takes judicial notice of it.^ § 472. Courts of the United States take judicial notice of state constitutional conventions.— The lower courts of the United States, and the supreme court on appeal from their decisions, take judicial notice of the days of public general elections of members of the state legislatures, and of the elec- tion of delegates to and the assembling of state constitutional conventions to revise the fundamental law of the state, and the times of the commencement of the sitting of such bodies, and of the dates when their acts take effect.' ^ § 473. Federal courts take judicial notice of charters granted by a state, when.— When, by the act of the legis- lature of a state, a corporation is created and chartered, and the act of incorporatiou or any general law of the state de- clares that such act of incorporation shall be considered a pub- lic law, the courts of the United States will take judicial notice of the act of incorporation, without its being specially pleaded or proved.* 1 Hanley v. Donoghue, 116 U. 8. 1, 7. Junction R. Co. v. Bank of Ashland, 2 Renaud v. Abbott, 116 U. S. 377. 13 Wall. 336; Case v. Kelly, 133 U. S. 3 Mills V. Green, 159 U. S. 651. 21, *Beatty v. Knowler, 4 Pet. 153; 496 FEDERAL EQUITY PEOCEDUEE. [§ 474. § 474. Federal courts take judicial notice of the laws of an antecedent goTernment. — When the United States acquires territory from a foreign government, the laws which were in force in such territory up to the time of its acquisition by our government, and under which titles are claimed, are not re- garded by the courts of this country as foreign laws, but as the laws of an antecedent government, and the courts of the United States will take judicial notice of such laws.^ Chief Justice Taney, stating the rule upon this subject, said: "The Spanish laws which formerly prevailed in Louisiana, and upon which the titles to land in that state depend, must be judicially noticed and expounded by the court like the laws affecting titles to real property' in any other state. They are questions of law and not questions of fact, and are always so regarded and treated in the courts of Louisiana. And it can never be maintained in the courts of the United States that the laws of any state of this Union are to be treated as the laws of a for- eign nation, and ascertained and determined as a matter of fact by a jury upon the testimony of witnesses. And if the Spanish laws prevailing in Louisiana before the cession to the United States were to be regarded as foreign laws, which the courts could not judicially notice, the titles to land in that state would become unstable and insecure, and their validity or in- validity would, in many instances, depend upon the varying opinions of witnesses and the fluctuating verdicts of juries, deciding upon questions of law which they could not, from the nature of their pursuits and studies, be supposed to compre- hend." " And in a case appealed from the United States dis- trict court from California, involving title to land claimed under Spanish laws, the same learned judge said : " It is proper to remark that the laws of these territories under which titles were claimed were never treated by the courts as foreign laws, to be decided as a question of fact. It was always held that the court was bound judicially to notice them, — as much so as the laws of a state of the Union. In doing this, however, it was undoubtedly often necessary to inquire into official cus- lUnited States v. Perot, 98 U. S. 168 U.S. 208; United States v. Chaves, 438; United States v. Turner, 11 How. 159 U. S. 452. 663; Fremont v. United States, 17 2 United States v. Turner, 11 How. How. 542; Crespin v. United States, 663. § 475.] EVIDENCE. 497 toms and forms and usages. They constitute what may be called the common or unwritten law of every civilized country. And when there are no published reports of judicial decisions which show the received construction of a statute, and the powers exercised under it by the tribunals or officers of the government, it is often necessary to seek information from other authentic sources, such as the records of official acts and the practice of the different tribunals and public authorities. And it may sometimes be necessary to seek information from individuals whose official position or pursuits have given them opportunities of acquiring knowledge. But it has always been held that it is for the court to« decide what weight is to be given to information obtained from any source. It exercises the same discretion and power in this respect which it exer- cises when it refers to the different reported decisions of state courts, and compares them together in order to make up an opinion as to the unwritjten law of the state or the construc- tion given to one of its statutes.'" The doctrine of these de- cisions has lately been reaffirmed by the supreme court.'' In a case in which four leagues of land were claimed, as granted by the commandant of the post of Nacogdoches, under the Span- ish government, in the province of Texas, the supreme court used this language : " The leagues intended were Spanish leagues, such as were used in land measures and grants in Mexico and Texas at that period. Now we are bound to take judicial notice that the Mexican league was not the same as the American league. The laws of Mexico, in force in Texas previous to the Texan revolution, were the laws not of a foreign, but of an antecedent government, to which the government of the United States, through the medium of the Kepublic of Texas, is the direct successor. Its laws are not deemed foreign laws ; for as to that portion of our territory they are domestic laws, and we take judicial notice of them." ' § 475. The courts of the United States will not take ju- dicial notice of foreign laws.— Foreign laws and usages are matters of fact and not matters of law, and will not be judi- 1 Fremont V. United States, 17 How. 452; Crespin v. United States, 168 542. U. S. 208. 2 United States v. Chaves, 159 U. S. » United States v. Perot, 98 U. S. 428. 33 498 FEDEKAL EQUITT PKOCEDUEE. [§§ 476, 477. daily noticed. "A party who relies upon a right or an ex- emption by foreign law is bound to bring such law properly before the court, and to establish it in proof." " The law of Great Britain since the Declaration of Independence is the law of a foreign country, and, like any other foreign law, is matter of fact which the courts of this country cannot be pre- sumed to be acquainted with, or to have judicial knowledge of, unless it is pleaded and proved. The rule that the courts of one country cannot take cognizance of the law of another without plea and proof has been constantly maintained at law and in equity in England and America." ^ § 476. Judicial notice of seals of notaries public. — Courts " will take judicial notice of the seals of notaries public, for they are officers recognized by the commercial law i of the world ; " and a certificate of protest made by a notary public, authenticated by his seal, is entitled to full faith and credit, and such certificate, attached to a foreign bill of exchange, when put in evidence, is sufficient proof of the presentment and non-payment of the bill. The notarial certificate of pro- test, when authenticated by the notarial seal, is, of itself, suffi- cient proof of the dishonor of a bill, without any auxiliary evidence. It has long been adopted into the jurisprudence of the common law, upon the ground that such protests are re- quired by the custom of merchants; and being founded in public convenience, they ought, everywhere, to be allowed as evidence of the facts which they purport to state.^ § 477. Courts of one state do not take judicial notice of the laws of another state. — No court of a state is charged with knowledge of the laws of another state; but such laws are in that court matters of fact, which, like other facts, must be pleaded and proved before they can be acted upon, or any rights claimed under them.' But it is within the legislative 1 Liverpool Steam Co. v. Phenix 334; Ennis v. Holmead, 14 How. Ins. Co., 139 U. S. 445; Pierce v. Ind- 400. seth, 106 U. S. 548; Dainese v. Hale, 2 Pierce v, Indseth, 106 U. S. 646 91 U. S. 13; Talbot v. Seeman, 1 Townsley v. Siimrall, 2 Pet 170 Cranoh, 1, 38; Church v. Hubbart, Chanoine v. Fowler, 3 Wend. 173 2 Cranch, 187; Strother v. Lucas, 6 Halliday v. McDougall, 30 Wend. Pet. 763; Armstrong v. Lear, 8 Pet. 81; Carter v. Burley, 9 N. H. 558. 53; United States V.Wiggins, 14 Pet. » Chicago & Alton R. Co. v. Wig- §§ 478, 479.] EVIDENCE. 499 power of a state to require its courts to take judicial notice of the laws of other states.^ § 478. Judicial notice of territorial extent of govern- mental jurisdiction. — "Who is the soYereiga., de jure ov de faato, of a territory is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of that gov- ernment. This principle has always been upheld by " the su- preme court of the United States, "and has been affirmed under a great variety of circuraetances."^ And "all courts of justice are bound to take judicial notice of the territorial ex- tent of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the sovereignty' of a foreign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence nor in accord with the plead- ings." ' § 479. Judicial notice of rules of navigation.— The courts may take judicial notice of the rules of navigation established in the British orders in council on January 9, 1863, and in our act of congress of 1864, and which, before the close of the year 1864, had been accepted as obligatory as laws of the sea by more than thirty of the principal commercial states of the world. And the courts may also take judicial notice of the historical fact that, by the common consent of mankind, the above mentioned laws of the sea have been recognized and acquiesced in as of general obligation. gins Ferry Co., 119 U. S. 623; Hanley 520; Williams v. Suffolk Ins. Co., 13 V. Donoghue, 116 U. S. 1, 8; Lloyd v. Pet. 415; United States v. Yorba, 1 Matthews, 155 U. S. 226, 237. Wall. 412, 433; United States v. 1 Hanley v. Donoghue, 116 U. S. 1, Lynde, 11 Wall. 633, 638. 8; Hobbs v. M. & C. R. Co., 9 Heisk. 3 Jones v. United States, 137 U. S. ^Y3_ 303. 314; United States v. Reynes, 9 2'jones V. United States, 137 U. S. How. 137; Kennett v. Chambers, 14 303, 212; Gelston v. Hoyt, 8 Wheat. How. 38; Hoyt v. Russell, 117 U. S. 246, 334; United States v. Palmer, 3 401, 404; Coffee v. Grover, 133 U. S. Wheat. 610; The Divina Pastora, 4 1; State v.Dunwell, 3R. 1.137; State Wheat. 52; Foster v. Neilson, 3 Pet. v. Wagner, 6 Me. 178. S53, 307, 309; Keane v. MoDonough, *The Scotia, 14 Wall 170. 8 Pet 308; Garcia v. Lee, 12 Pet. 511, 500 FEDEEAL EQUITY peooedheb. [§§ 480-483. §480. Judicial notice of the proclamations of the presi- dent of the United States. — A proclamation of the president of the United States is a public act of which all the courts of the United States are bound to take judicial notice and to ■which all courts are bound to give effect;' and such proclama- tions are conclusively presumed to have had a valid existence on the day of their date.' § 481. Judicial notice of the rules and regulations of the executive departments of the federal government. — The rules and regulations prescribed by the Interior Department in respect to contests before the land ofBce are matters of which the courts of the United States take judicial notice; "and it may be laid down as a general rule, deducible from the cases, that wherever, by the express language of any act of congress, power is intrusted to either of the principal departments of governnfient to prescribe ruleg and regulations for the transac- tion of business in which the public is interested, and in re- spect to which they have a right to participate, and by which tbey are to be controlled, the rules and regulations prescribed in pursuance of such authority become a mass of that body of public records of which the courts take judicial notice." ' § 482, Judicial notice of the persons who preside over the patent office. — The courts of the United States will take no- tice judicially of the persons who from time to time preside over the patent office of the United States, whether perma- nently or transiently, and the production of their commissions' is not necessary to support their official acts.* § 483. Courts do not take notice of military orders. — There is no rale of law or practice requiring the courts of the United States, or any other court, to take judicial notice of the various orders issued by a military commander in the ex- ercise of the authority conferred upon him.' 1 Armstrong v. United States, 13 ^Caha v. United States, 157 U. S. "Wall. 154, 156; The Three Friends, 211, 321, 322. 166 U. S. 1. ■ ■'New York. & Maryland Line R. 2 Lapeyre v. United States, 17 Wall. Co. v. Winans, 17 How. 40, 41. 191. 5 Burke v. Miltenberger, 19 Wall. 519, §§ 484-487.] EVIDENCE. 501 § 484. Judicial notice of the ordinary meaning of words.— Unless words have a special meaning, acquired by commercial usage or in some other way, they must receive their ordinary meaning, and of that meaning courts are bound to take judicial notice;' and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and under- standing of the court.'^ § 485. In taking judicial notice judges may refresli their memory and inform their conscience.— " In the ascertain- ment of any facts of which they are bound to take judicial notice, as in the decisions of matters of law which it is their office to know, the judges ma/ refresh their memory and in- form their conscience from such sources as they may decree most trustworthy."' (e) Peesttmptions. § 486. Classification of presumptions. — Presumptions are either (1) presumptions of fact, or (2) presumptions of law ; and presumptions of law are either (1) disputable or rebuttable presumptions of law, or (2) conclusive or absolute presumptions of law. § 487. Presumptions of fact. — In legal procedure the pre- sumption of a fact is the finding by the jury in actions at law, or by the chancellor in suits in equity, of the existence of some material fact in the case, drawn as a conclusion from the exist- ence of some other fact or facts, the existence of which has been proved or admitted. In presuming the existence of a fact a jury acts upon legal evidence, by process of human rea- soning, based upon the common knowledge and experience of mankind, guided by the natural relation of events and the rules of law which determine the relevancy of testimony in judicial controversies. Presumptions from evidence given in a cause of the existence of particular facts are, in many if not in all iNix V. Hedden, 149 U. S. 304; U. S. 37, 42; State v. Wagner, 61 Me. Toplitz V. Hedden, 146 U. S. 253. 175; Gardner v. Collector, 6 Wall. 2 Nix V. Hedden, 149 U. S. 304. 499: South Ottawa v. Perkins, 94 » Jones V. United States, 137 U. S. U. S. 260-277; Post v. Supervisors, 203, 316; Fremont v. United States, 105 U. S. 667; Ex parte Hitz, 111 U. S. 17 How. 543, 557; Brown v. Piper, 91 766; In re Baiz, 135 U. S. 403. 502 FEDEEAL EQUITY PEOOEDUEE. [§ 488. cases, mixed questions of law and fact. If the evidence be irrelevant to the fact insisted upon, or be such as cannot fairly warrant a jury in presuming it, the court will exclude the tes- timony or set aside the verdict and award a new trial, as the case may require. When evidence is offered to establish the existence of a fact presumpUvel/y, the question as to its rele- vancy is, as in all other cases, a question of law to be deter- mined by the court. The legal relation of the fact offered in evidence to the fact to be presumed from it, that is, the tendency of the one to establish the other, must necessarily arise, and when it does arise it must be determined by the court; and the court having passed upon the legal question of relevancy, the jury must pass upon the existence or non-existence of the fact sought to be established by presumption ; and so it would seem that the presumption of the existence of a fact from evidence given in a cause is a mixed question of law and fact.^ Pre- sumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts ; when the facts appear, presumptions disappear.^ Presumptions of fact or presumptive evidence are often resorted to in cases in- volving the most important affairs and transactions of this life, to establish the existence of the main fact in litigation. " "When the fact itself cannot be proved, that which comes nearest to proof of the fact is the proof of the circumstances that neces- sarily and usually attend such facts, called presumptions and not proofs, for they stand instead of proofs of the fact till the "jontrary be proved." ' § 488. Same — Presumption as to the delivery of letters through the mail service. — The rule is well settled that if a letter properly directed is proved to have been either put in the postoffice or delivered to the postman, it is presumed, from the known course of business in the postoffice department, that it reached its destination at the regular time, and was received by the person to whom it was addressed. The presumption so arising is not a conclusive presumption of law, but a mere pre- iBank of United States v. Corcoran, Coal & C. Co., 140 U. S. 35; Schutz v. 2 Pet. 131; Giles v. Baremore, 5 Johns. Jordan, 141 U. S. 313. Ch. 545; Waterbury v. Sturtevant, 13 2 Lincoln v. French, 105 U. S. 614; Wend. 353; Henderson v. Carbondale Fresh v. Gilson, 16 Pet. 337. 3 1 Gilbert's Ev. 143. § 489.] ETIDENCE. 503 sumption of fact founded on the probability that the officers of the government will do their duty in the usual course of business, and, when it is opposed by evidence that the letter was never received, must be weighed with all the other cir- cumstances of the case, in determining the question Avhether the letter was actually received or not.' But no such pre- sumption arises unless it appears that the person addressed re- sides in the city or town to which the letter was addressed.^ When a letter is duly mailed, a presumption arises that it is delivered; but that presumption is that it is delivered in the usual course of business; and when the usual course of busi- ness is for an agent of a partv to receive his mail, the pre- sumption is that the agent received it rather than the princi- pal.' § 489. Same — Domicile. — " The place where a person lives is taken to be his domicile until facts adduced establish the contrary; and a domicile, when acquired, is presumed to con- tinue until it is shown to have been changed." Domicile is defined as " a residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time." And " where a change of domicile is alleged, the burden of proving it rests upon the person making the allegation. To constitute the new domicile two things are indispensable: First, residence in the new locality; and second, the intention to remain there. The change cannot be made except yacto et animo. Both are alike necessary. Either without the other is insuflicient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired the old one remains. These principles are axiomatic in the law upon the subject." ^ The domicile of the husband is the domicile of the wife; and this is true although the wife may be residing in another place and 1 Schutz V. Jordan, 141 U. S. 313; ' Schutz v. Jordan, 141 U. S. 213. Henderson v. Carbondale Coal & C. ••Anderson v. Watt, 138 U. S. 694; Co., 140 U. S. 25; Rosenthal v. Walker, Mitchell v. United States, 21 Wall. Ill U. S. 185; Huntley v. Whittier, 350; Desmare v. United States, 93 105 Mass. 391. U- S. 605. 2 Henderson v. Carbondale Coal & C. Co.. 140 U. S. 25. 50i FEDEEAL EQUITY PEOCEDUEE. [§ 490. living apart from her husband without sufficient cause. The rule is " founded upon the theoretic identity of person, and of interest, between husband and wife, as established by law, and the presumption that, from the nature of that relation, the home of the one is that of the other, and intended to promote, strengthen and secure their interests in this relation, as it or- dinarily exists, where union and harmony prevail. But the law will recognize the wife as having a separate existence, and separate interests and separate rights, in those cases where the express object of all proceedings is to show that the relation itself ought to be dissolved or so modified as to establish sepa- rate interests." ^ § 490. Disputable presumptions of law. — In a great variety of cases, the law, upon grounds of public policy and the funda- mental maxims of jurisprudence, dispenses with complete proof and presumes the existence of a fact in issue, but does not for- bid the introduction of evidence to overcome the presumption. In such cases the presumption is disputable, and holds good till overcome by proof. " By the general rules of evidence, presumptions are continually made, in cases of private per- sons, of acts of even the most solemn nature, when those acts are the natural result or necessary accompaniment of other circumstances. In aid of this salutary principle, the law it- self, for the purpose of strengthening the infirmity of evi- dence, and upholding transactions intimately connected with the public peace, and the security of private property, in- dulges its own presumptions. It presumes that every man, in his private and ofiicial character, does his duty, until the contrary is proved ; it will presume that all things are rightly done, unless the circumstances of the case overturn this pre- sumption, according to the maxim, omnia _presumuntur rite ei solemnit/m' esse acta, donee prol)etur in contrarium. Thus, it will be presumed that a man acting in a public office has been rightly appointed ; that entries found in public books have been made by the proper officer; that, upon proof of title, mat- ters collateral to that title shall be deemed to have been done ; as, for instance, if a grant or feoffment has been declared, at- 1 Anderson v. Watt, 138 U. S. 694 Cheely v. Clayton, 110 U. S. 701 Harteau v. Harteau, 14 Pick. 181, 185 Story's Confl. Laws, sec. 46; Whar- ton, Confl, Laws, sec. 43. §§ 491-493.] EVIDENCE. 505 tornment will be intended, and that deeds and grants have been accepted which are manifestly for the benefit of the party." ' § 491. Same — Presumption that public officers have done their duty.— " The presumption that public officers have done their duty, like the presumption of innocence, is undoubt- edly a legal presumption ; but it does not supply proof of a substantive fact. ' The true principle to be asserted by the rule seems to be, that there is a general disposition in courts of jus- tice to uphold judicial and other acts rather than to render them inoperative ; and with this view, where there is general evidence of acts having been legally and regularly done, to dis- pense with proof of circumstances, strictly speaking, essential to the validity of those acts, and by which they were probably accompanied in most instances, although in others the assump- tion may rest on grounds of public policy.' Nowhere is the presumption held to be a substitute for proof of an independ- ent and material fact." ^ § 492. Same — Regularity of judicial proceedings. — "There is no principle of law better settled than that every act of a court of competent jurisdiction shall be presumed to have been rightly done till the contrary appears; and this rule applies as well to every judgment or decree rendered in the various stages of their proceedings, from the initiation to their com- pletion, as to their adjudication that the plaintiff has a right of action. Every matter adjudicated becomes a part of their record ; which thenceforth proves itself, without referring to the evidence on which it has been adjudged." ' § 493. Same — That state courts will do what federal constitution and laws require. — " The presumption in all cases is that the courts of the states will do what the constitution and 1 United States Bank V. Dandridge, Presb. Church, 91 U. S. 137; Apple- 13 Wheat. 64, 69. gate v. Lexington & Mining Co., 117 2 United States v. Ross, 93 U. S. 381, U. S. 355; Grignon v. Astor, 3 How. 284; United States v. Carr, 133 U. S. 319;Kempv. Kennedy, 5 Cranch, 178; 644, 653. Thompson v. Tolmie, 3 Pet. 157; Flor- 3 Voorhees v. Bank of United States, entine v. Barton, 3 Wall. 310 ; MoGoon 10 Pet. 449; Williams v. United States, v. Scales, 9 Wall. 819; White v. Crow, 1 How. 390; Nations v. Johnson, 34 110 U. S. 183; Cornett v. Williams, 87 How. 195; Harvey v. Tyler, 3 Wall. U. S. 336; McNitt v. Turner, 16 Wall 338; Baltimore & P. R. R. Co. v. Sixth 353, 365, 366. 606 FEDERAL EQUITY PEOCEDUEE. [§§ 494-496. laws of the United States require, and removals cannot be effected to the courts of the United States because of a fear that they will not." ^ § 494. Same — Presumptions in favor of patents issued for public lands. — "When the ofBcers of the government charged with the alienation of the public lands issue a patent, the pre- sumption is that it was issued upon sufficient evidence that the law had been complied with by the officers of the govern- ment, and that all the preceding steps required by law had been observed before it was issued ; and an effort to correct or annul a patent on the ground of fraud or mistake should be successful only when the allegations on which the attempt is made are clearly stated and fully sustained by proof.^ § 495. Same — Persons acting in a public oilice. — The law presumes that persons acting in a public office have been duly appointed, and are acting within authority, until the contrary is shown. The settled rule is that " the public acts of public officers, purporting to be exercised in an official capacity, shall not be presumed to be usurped, but that a legitimate authority had been previously given or subsequently ratified. To adopt a contrary rule would lead to infinite confusion and uncertainty of titles." ' § 496. Same — Presumption of death from seven years' absence. — In regard to this subject the supreme court of the United States has said : " The general rule undoubtedly is, that ' a person shown not to have been heard of for seven years by those (if any) who, if he had been alive, would naturally have heard of him, is presumed to be dead, unless the circum- stances of the case are such as to account for his not being heard of without assuming his death.' But that presumption is not conclusive, nor is it to be rigidly observed without regard to accompanying circumstances which may show that death 1 Chicago & A. E. E. Co. v. Wiggins U. S. 307; Polk v. Wendal, 9 Cranch, Ferry Co., 108 U. S. 18; Shreveport v. 87; Philadelphia & Trenton E. R. Ca Cole, 139 U. a 36. v. Stimpson, 14 Pet. 448; Minter v. 2 United States v. Iron Silver Min- Crommelin, 18 How. 87. ing Co., 138 U. S. 673; Maxwell Land » United States v. Peralta, 19 How. Grant Case, 131 U. 8. 335; Colorado 343, 347; Keely v. Sanders, 99 U. S. Coal & Iron Co. v. United States, 133 441. §§ 497, 498.] EVIDENCE. 507 in fact occurred within the seven years. If it appears in evi- dence that the absent person, within the seven years, encoun- tered some specific peril, or within that period came within the range of some impending or immediate danger, which might reasonably be expected to destroy his life, the court or jury may infer that life ceased before the expiration of the seven years. ' Although a person who has not been heard of for seven years is presumed to be dead, the law raises no pre- sumption as to the time of his death ; and, therefore, if any one has to establish the precise period during those seven years at which such person died, he must do so by evidence, and can neither rely, on the one hand, on^the presumption of death, nor, on the other, upon the presumption of the continuance of life.' These views are in harmony with the settled law of the English courts. In the leading case in the court of exchequer of Nepeau v. Doe dem. knight, in error from the court of king's bench, Lord Den man, C. J., said: '"We adopt the doctrine of the court of king's bench, that the presumption of law relates only to the fact of death, and that the time of death, whenever it is material, must be a subjiect of distinct proof.' To the same effect are Mr. Greenleaf and the preponderance of au- thority in this country." ' And the rule as stated was followed by the court. § 497. Same — Persons presumed to intend necessary con- sequences of act. — "Persons of sound mind and discretion must in general be understood to intend, in the ordinary transactions of life, that which is the necessary and unavoidable conse- quences of their acts, as they are supposed to know what the consequences of their acts will be in such transactions. Experi- ence has shown the rule to be a sound one, and a safe one to be applied in criminal as well as civil cases. Exceptions to it un- doubtedly may arise, as when the consequences likely to flow from the act are not matters of common knowledge, or where the act or the consequence flowing from it is attended by cir- cumstances tending to rebut the ordinary probative force of the act or to exculpate the intent of the agent." ^ § 498. Same— Presumption of legitimacy — Testament- ary recognition of child — Civil-law rule.— Access between J Davie v. Briggs, 97 U. S. 628. « Clarion Bank v. Jones, 21 Wall. 325, 337, 338. 508 FEDEEAL EQUITY PEOCEDUEE. [§ 499. husband and wife will always be presumed until the contrary is clearly established by satisfactory evidence, and nothing will be allowed to repel the legal presumption of the legitimacy of the child but proof of facts showing that it was either physically or naturally impossible for the husband to have been the father of the child.^ " The testamentary recognition, of a child as le. gitimate is of the highest legal authority. All presumptions are to be taken in favor of such a declaration." This is the rule of the civil law, announced in the one hundred and seventeenth "Nouvelle of Justinian," which is as follows: "We have de- termined to ordain that if any one having a son or daughter of a free woman, with whom he might have been married, shall say in a written act, either before a public officer or under his own hand, sustained by three credible witnesses, or in his last will, or in public acts, that this s6n or this daughter is his child, and that he does not call them natural children, they shall be reputed legitimate, and no other proof shall be demanded of them, and they shall enjoy the rights of legitimate children."^ §499, Same — Presumption of the date and delivery of deeds. — The possession of a deed by the grantee is prvma facie evidence of its delivery. Under ordinary circumstances no other evidence of the delivery of a deed than the possession of it by the person claiming under it is required. Delivery will be presumed from the possession.' "While it is law that a de- livery of a deed is essential to pass an estate, and there can be no delivery without a surrender of the instrument or the right to retain it, such delivery will be presumed, in the absence of direct evidence, from the concurrent acts of the parties recog- nizing a transfer of the title.* The delivery of a deed or mort- gage is presumed to have been made on the day of its date. But this presumption may be removed by evidence that it was delivered on some subsequent day; and when a delivery on some subsequent day is shown, the deed speaks on that subse- quent day, and not on the day of its date." 1 Gaines v. Hennen, 24 How. 553; 'Gaines v. Dunn, 14 Pet. 323; Han- Cross V. Cross, 3 Paige, Ch. 189; Van rick v. Neely, 10 Wall 864 Aernam v. Van Aernam, 1 Barb. Ch. * Gould v. Day, 94 U. S. 405. 875. 'United States v. Le Baron, 19 2 Gaines v. Hennen, 24 How. 553, How. 78; Fowler v. Morrill, 11 How. 600, 601, 603. 875. § 500.] EVIDENCE. 509 § 500. Same — Presumption of grant from long-continued possession. — The long-continued and uninterrupted possession, use and enjoyment of real property, under claim of title, ac- companied by the payment of taxes, create a presumption of a grant; the presumption is not founded on the belief that a grant was actually made, but it will be sufficient that the evi- dence shows that a grant might possibly have been made.' In one of the cases cited, Mr. Justice Field, delivering the unani- mous opinion of the supreme court of the United States, said: " The defendants requested the court to instruct the jury ' that the presumption they were authorized to make of a lost deed was not necessarily restricted to what may fairly be sup- posed to have occurred, but rather to what may have occurred and seems requisite to quiet title in the possessor.' This in- struction the court refused to give, or to modify its charge in conformity with it. The defendants now contend that the court thus erred, its charge being in efifect that, in order to presume a lost deed, the jury must be satisfied that such a deed had in fact actually existed. Such seems to us to be the pur- port of the charge, and therein there was error. " In such cases, ' presumptions,' as said by Sir William Grant, * do not always proceed on a belief that the thing presumed has actually taken place. Grants are frequently presumed, as Lord Mansfield says, merely for the purpose and from a prin- ciple of quieting the possession. There is as much occasion for presuming conveyances of legal estates, as otherwise titles must forever remain imperfect, and in many respects unavail- able, when from length of time it has become impossible to discover in whom the legal estate (if outstanding) is actually vested.' " The owners of property, especially if it be valuable and 1 Fletcher v. FuUer, 130 IT. S. 534, Ewing v. Burnett, 11 Pet. 41; Mc- 545, 548; Hillary v. Waller, 13 Ves. Clung v. Ross, 5 Wheat. 116; Elwell 239, 353; Eldridge v. Knott, Cowp. 215; v. Hinckley, 188 Mass. 335; Glasscock Casey's Lessees v. Inloes, 1 Gill, 430, v. Hughes, 55 Tex. 461; Coolidge v. 503; a C, 39 Am. Dec. 658; Williams Learned, 8 Pick. 504; Beckford v. V. Donell, 2 Head (Tenn.), 695; Edson Wade, 17 Ves. 87; Davis v. Easley, 13 V. Munsell, 10 Allen, 557, 568; Ricard 111. 193; St. Louis Public Schools v. V. Williams, 7 Wheat. 59, 110; Union Risley's Heirs, 40 Mo. 356, 370; Durant Savings Bank v. Taber, 13 R. L 683; v. Ritchie, 4 Mason, 45; United States United States v. Dickson, 15 Pet 141; v. Chaves, 159 U. S. 453. 510 FEDERAL EQUITY PROCEDURE. [§ 600. available, do not often allow it to remain in the quiet and un- questioned enjoyment of others. Such a course is not in ac- cordance with the ordinary conduct of men. "When, therefore, possession and use are long continued they create a presump- tion of lawful origin, that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. It may be, in point of fact, that permission to occupy and use was given orally or upon a contract of sale with promise of a future conveyance, which parties have subsequently neglected to obtain, or the conveyance executed may not have been acknowledged so as to be recorded, or may have been mislaid or lost. Many cir- cumstances may prevent the execution of a deed of conveyance, to which the occupant of land is entitled, or may lead to its loss after being executed. It is a matter of almost daily ex- perience that reconveyances of property, transferred by the owners upon conditions or trusts, are often delayed after the conditions are performed or the trusts discharged, simply be- cause of the pressure of other engagements and a conviction that they can be readily obtained at any time. The death of parties may leave in the hands of executors or heirs papers con- stituting muniments of title, of the value of which the latter may have no knowledge, and therefore for the preservation and record of which may take no action; and thus the docu- ments may be deposited in places exposed to decay and de- struction. Should they be lost, witnesses of their execution, or of contracts for their execution, may not be readily found, or, if found, time may have so impaired their recollection of the transaction that they can only be imperfectly recalled, and of course imperfectly stated. The law, in tenderness to the in- firmities of human nature, steps in, and by reasonable presump- tions that acts to protect one's rights, which might have been done, and in the ordinary course of things generally would be done, have been done in the particular case under considera- tion, affords the necessary protection against possible failure to obtain or to preserve the proper muniments of title, and avoids the necessity of relying upon the fallible memory of witnesses, when time may have dimmed their recollection of past transactions, and thus gives peace and quiet to long and uninterrupted possessions. § 500.] EVIDENCE. 511 " The rule of presumption, in such cases, as has been well said, is one of policy as well as of convenience, and necessary for the peace and security of society. ' Where one uses an easement whenever he sees fit, without asking leave and with- out objection,' says the supreme court of Pennsylvania, ' it is adverse, and an uninterrupted adverse enjoyment for twenty- one years is a title which cannot afterward be disputed. Such enjoyment, without evidence to explain how it began, is pre- sumed to have been in pursuance of a full and unqualified grant.' The same presumption will arise whether the grant relate to corporeal or incorporeal hereditaments. As said by this court, speaking by Mr. Justice Stoi^y^ ' A grant of land may as well be presumed as a grant of a fishery, or of common, or of a waj'^. Presumptions of this nature are adopted from the general in- firmity of human nature, the difficulty of preserving muni- ments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consid- eration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession.' It is not necessary, therefore, in the cases mentioned, for the jury, in order to presume a conveyance, to believe that a conveyance was in point of fact executed. It is sufficient if the evidence leads to the conclu- sion that the conveyance might have been executed, and that its existence would be a solution of the difficulties arising from its non-execution. In Edson v. Munsell, 10 Allen, 557, 568, which was an action for obstructing the enjoyment of an ease- ment, the doctrine of acquiring such rights by prescription or adverse possession is elaborately considered ; and it is there said that ' the fiction of presuming a grant from twenty years' possession or use was invented by the English courts in the eighteenth century to avoid the absurdities of their rule of legal memory, and was derived by analogy from the limitation pre- scribed by the statute of 21 Jac. 1, ch. 21, for actions of eject- ment. It is not founded on a belief that the grant has actually been made in the particular case, but on the general presump- tion that a man will naturally enjoy what belongs to him, the difficulty of proof after lapse of time, and the policy of not dis- turbing long-continued possession.' In Casey^s Lessees v. Inloes, 612 FEDERAL EQUITY PEOCEDUBB. [§ 500. 1 Gill, 430, 503 {S. C, 39 Am. Dec. 658), which was a'a action of ejectment, the court of appeals of Maryland held that where there had been a continuous possession of land for twenty years or upwards by a party or person claiming under him, the court was authorized to instruct the jury, in the absence of a deed to such party, to presume that one had been executed to him. It also approved the refusal of the court below to in- struct the jury that before they could find a title in the defend- ants, or any one of them, by presumption of a grant by plaint- iff or those under whom he claims, they must belreve on their consciences and find as a fact that such grant was actually made. ' The granting of such a prayer,' said the court, ' would have had a tendency to mislead the jury by inducing them to believe that the presumption of a grant could not be made un- less the jury, in point of fact, believed in the execution of the grant; whereas, it is frequently the duty of the jury to find such presumption as an inference of law, although in their consciences they may disbelieve the actual execution of any such grant.' In Williams v. Donell, 2 Head, 695, 697, which was also an action of ejectment, the supreme court of Tennes- see, speaking on the same point, said : ' It is not indispensable, in order to lay a proper foundation for the legal presumption of a grant, to establish the probability of the fact that in real- ity a grant ever issued. It will be a sufiicient ground for the presumption to show that, by legal possibility, a grant might have issued. And this appearing, it may be assumed, in the absence of circumstances repelling such conclusion, that all that might lawfully have been done to perfect the legal title was in fact done, and in the form prescribed by law.' " In accordance with the doctrine thus explicitly declared, there can be no doubt that the court below should have in- structed the jury as requested." ^ 1 Fletcher v. Fuller, 120 U. S. 534, years, and that such rule will be ap- 555. piled as a presumptio juris et de jure, " It may be safely said that by the whenever, by possibility, a right may weight of authority, as well as by be acquired in any manner known to the preponderance of opinion, it is the law." Shiras, Justice, in United the general rule of American law States v. Chaves, 159 U. S. 464, citing that a grant will be presumed upon 1 Greenleaf, Ev. (12th ,ed.), sec. 17; proof of an adverse, exclusive and Eicard v. Williams, 7 Wheat. 59, 109; uninterrupted possession for twenty Cooledge v. Learned, 8 Pick. 503. §§ 501, 502.] EVIDENCE. 513 § 501, Same — Possession by husband of wife's property creates no presumption of a gift,— In a jurisdiction which by legislation secures to married women their separate prop- erty free from the common-law marital rights of the husband, whenever a husband acquires possession of the separate prop- erty of his wife he must be deemed to hold it in trust for her benefit, in the absence of any direct proof that she intended to make a gift of it to him. Possession by the husband of the wife's separate estate does not, under such circumstances, cre- ate any presumption that the title to the property has passed to him.^ • § 502. Fraus est odiosa et non praesnmenda — Meaning of tlie maxim — Fraud establislied by circumstantial evidence. This maxim is an incomplete statement of the legal principle which it is intended to express ; and it has therefore given rise to some confusion and contrariety of judicial opinion on the sub- ject. It is not meant that fraud will not be presumed as a fact, drawn as an inference or conclusion from other facts proved', and which are evidence of the ultimate fact of fraud ; it is only meant that fraud will not be presumed as matter of law with- out proof. The maxim expresses a mere fragment of the gen- eral maxim of the common law, namely, that the law presumes every person innocent of crime, dishonesty and moral turpitude until his guilt is established by proof. There are a number of legal maxims expressing with more or less completeness this principle of the common law. 1. Injuria non prmsumitur. (A wrong is not presumed.) 2. Odiosa et inhonesta non sunt in lege proEsumenda. (Odious and dishonest acts are not presumed inlaw.) 3. Odiosa non prmsumuntur. (Odious things are not presumed.) 4c. Fraus est odiosa et non prcesumenda. (Fraud is odious and not to be presumed.) The maxim declares simply a branch of the general presumption of innocence. The rule announced by the supreme court of the United States is: " Fraud cannot be presumed or inferred without proof in a court of equity, any more than in a court of law ; and in both, the rule is that he who makes the charge must prove it." ^ iStickney v. Stickney, 131 TJ. S. 2 Eager v. Thompson, 1 Black (66 327- Garner v. Providence Second U. S.), 80; Clark v. Hackett, 1 Black Nat. Bank, 151 U. S. 430. (66 U. S.), 77; Collins v. Thompson, 33 33 614 FEDERAL EQUITY PROCEDUEE. [§ 503. But to establish fraud it is not necessary to prove it by direct and positive evidence. Circumstantial evidence is not only sufficient, but in most cases it is the only proof that can be adduced.' Fraud ought not to be presumed, but must be proved. But the evidence of it is almost always circumstantial. Never- theless, though circumstantial, it produces conviction in the mind often of more force than direct testimony.' Suits " where fraud is of the essence of the charge necessarily give rise to a -wide range of investigation, for the reason that the intent of the defendant is, more or less, involved in the issue. Experi- ence shows that positive proof of fraudulent acts is not gener- ally to be expected, and for that reason, among others, the law allows a resort to circumstances as the means of ascertaining the truth. Great latitude is justly allowed by the law to the reception of indirect or circumstantial evidence, the aid of which is constantly required, not merely for the purpose of remedying the want of direct evidence, but of supplying an invaluable pro- tection against imposition. Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to testi- mony on the ground of irrelevancy are not favored, for the rea- son that the force and efiPect of circumstantial facts usually, and almost necessarily, depend upon their connection with each other. Circumstances altogether inconclusive, if separately con- sidered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to con- stitute conclusive proof." ' "Where fraud is alleged the facts sustaining it must be clearly made out.* Fraud is not presumed, either as matter of law or fact, unless under circumstances not fairly susceptible of any other interpretation.' Fraud must be proved, but it is not necessary that it should be established by direct proof; resort may be had to circumstantial or presump- tive evidence.* § 503. Presumption of the satisfaction and ademption of legacies. — An English author has stated the rule on this sub- How. 346; Connor v. Featherston, 13 ' Castle v. BuUard, 33 How. 173, 187. Wheat 199; Gaines v. Nichols, 9 How. < Farrar v. Churchill, 135 U. S. 609, 856. 615. iRea V. Missouri, 17 Wall. 533; 8 Tucker v. Moreland, 10 Pet. 58, 78. Castle V. BuUard, 38 How. 173. «Waterbury v.Sturtevant,13Weud. 2 Kempner v. ChurchiU, 8 Wall 363. 35a § 504.] EVIDENCE. ■ 515 ject as follows: "It frequently happens that after a parent or a person standing in loco parentis has made a provision for a child by his will, the marriage of the child, or an opportunity for his advancement in life, causes the parent to make a pro- vision for the same child during his life ; or the converse may take place : the parent, on the marriage of the child, or on some other occasion, may engage to make a certain provision for his child, and afterwards by his will give to the child a legacy or provision without reference to his previous engage- ment ; thus in each case making, in terms, a double provision for the same child. The court of chancery, in legal phrase, leans strongly against double "portions, so that generally the second provision in the former case is treated as an ademption of the first, in the second as a satisfaction, unless an intention to the contrary is shown. . . . The doctrine of the court of chancery on this subject was expounded by Lord Thurlow, after Lord Hardwicke and others of his predecessors, who were desirous of founding the doctrine on reasonable principles in- dependently of mere authority, as follows : As regards an ad- vancement following a gift by will, a legacy by a father, or person standing in loco pa/rentis to a child, is considered as a portion ; it therefore carries with it these qualities, that it is a deliberate distribution among his children of such portions as he thinks fit: crediting him for the deliberation, if he advances in his life that sum which he had adjudged to be the due and proper portion of that child, the presumption of law is, that he has satisfied that intent, and consequently that it is no longer a ground for any further demand ; and the law intends that every testator knows that such is the law. The same pre- sumption arises upon a gift by will subsequent to a provision by settlement." ' § 604. Presumptions arising^ from the suppression of tes- timony. — Omnia prcBsumuntur contra spoliatorem? "All evi- ■denoe is to be weighed according to the proof which it was in the power of one side to have produced and in the power of i2Spence, 437, 438, citing Barret Boyle, 1 Atk. 509; Cuthbert v. Pea- V Beckford, 1 Ves. 530; Ellison v. oook, 3 Vern. 593; Powell v. Cleaver, ■Cookson, 1 Ves. Jr. 107, 110; Shu- 3 Bro. 516; Clark v. Sewell, 3 Atk. dal v. Jekyll, 3 Atk. 577; Watson v. 97; Eastwood v. Vinck, 3 P. Wms. 616. Lord Lincoln, Ambl. 336; Graves v. 2 Broom, Max. 988. 616 FEDERAL EQUITY PEOCEDTJEE. [§ 505. the other side to have contradicted ; " and " the conduct of the party in omitting to produce that evidence in elucidation of the subject-matter in dispute, which is within his powePj and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him, since it raises strong suspicion that such evidence, if adduced, would operate to his prejudice." ^ §505. Conclusive presumptions of law. — Conclusive pre- sumptions are rules of law, which, in certain cases and under certain circumstances, determine the quantity and character of evidence required to establish a fact or facts, and forbid further inquiry.^ The rule has been stated and illustrated by the su- preme court of the United States as follows: "Presumptions of law are frequently absolute and conclusive, as they deter- mine the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the fact is otherwise. Such, presumptions arise in respect to the intermediate proceedings in cases where lands are sold under a license granted by courts to executors, admin- istrators, guardians and other oflBcers, where they are required to advertise the sales in a particular manner, and to observe other formalities in their proceedings. Lapse of time, usually for the period of thirty years, affords a conclusive presumption in such cases, if the license and the ofBcial character of the party and the deed of conveyance are proved, that all the in- termediate proceedings were correct. Were it otherwise, great uncertainty of titles and other public mischiefs would ensue." ' It is a conclusive presumption " that a child born of a woman whose husband was living with her at the proper period and had no physical incapacity is his legitimate offspring."* A proclamation of the president ' of the United States is conclu- sively presumed to have had a valid existence on the day of its date ; and no inquiry is permitted upon the subject.' 1 Kirby v. Tallmadge, 160 U. S. 379, Improvement Co. v. Muhson, 14 Wall. 383; Blatch v. Archer, Cowper, 63, 442, 449. 65; MoDonough v. O'Neil, 113 Mass. 'Improvement Co. v. Munson, 14 92; Commonwealth v. Webster, 5 Wall. 442, 449. Gush. 295, 316; 1 Starkie, Ev., p. 54. * Gresley's Eq. Ev. 365. 2Gresley's Eq. Ev. 363, 364, 365; 6 Lapeyre v. United States, 17 Wall. 191. §§ 506-508.] EVIDENCE. 617 (/") ADMISSIOlfS. § 506. Classification of admissions, — Admissions are either (1) admissions upon the record, or (2) admissions by stipulation or agreement of the parties ; and admissions upon the record are either (1) actual admissions, or (2) constructive admissions, resulting from the form of the pleadings adopted by the par- ties in the case. § 507. Actual admissions upon the record. — Actual admis- sions upon the record appear either (1) in plaintiff's bill, or (2) in defendant's answer. In equity, any allegation of plaintiff's bill may be read in evidence ^ the defendant ; ^ and the ad- missions of the defendant contained in his answer are conclu- sive upon him, and estop him from introducing conflicting testi- mony, and the fact admitted is no longer an issue in the case.* § 508. Constructive admissions upon the record. — When a defendant files a plea in bar of the whole bill, or any sub- stantive part of it, he thereby admits the truth of every aver- ment in the bill, or the part of it to which the plea is inter- posed, which is not denied by the plea; and this constructive admission is, for all purposes of the suit, absolutely conclusive upon the defendant.' " The facts alleged in a bill, where they are alleged positively, and not by way of pretense, are also constructive admissions, in favor of the defendant, of the facts so alleged, and therefore need not be proved by other evi- dence ; for, whether they be true or not, the plaintiff, by intro- ducing them into his bill and making them part of the record, precludes himself from afterwards disputing their truth. Some- times facts are hypothetically introduced into a bill for the purpose of raising an answer to an anticipated defense, with a species of protest against their being considered as admitted ; as, ' whereas your orator charges that, in case such or such a thing be true, but which your orator by no means admits; ' in such case the matter alleged is not, of course, to be considered as admitted by the bill, but must be the subject of proof." * 1 Ives V. Medoalf, 1 Atk. 63. ' Ante, § 301, and authorities cited. 2 Ante, § 335, and authorities there * 3 Daniell, 396, 397. cited. 518 ' FEDEEAL EQUITY PEOCEDUEE. [§§ 509, 510. § 509. Admissions by stipulation. — It is competent for the parties, being sui Juris, to admit, by stipulation, any fact or facts which they may agree upon. This is usually done to save expense, " or for the sake of respectively purchasing ad- vantages by concession." But " if one party alone chooses to make an admission or waiver, as is often the case in an ami- cable suit, no sort of reciprocity is necessary to render it valid ; satisfactory proof that the admission was made is all that will be required. The signature of the solicitor is quite sufficient." It is not necessary that the admission be made in writing, but parol evidence of the fact that the admission was made will be sufficient. But no admission by or on behalf of an infant de- fendant will be received by the court.' (g) Some General Kules of Evidence. § 510. Parol evidence inadmissible both at law and in equity to vary agreements in writing — Rule stated by United States supreme court. — It is a general rule that an agree- ment in writing, or an instrument carrying into execution an agreement, shall not be varied by parol testimony stating con- versations or circumstances anterior to the written instrument. The rule is recognized in courts of equity as well as in courts of law ; but courts of equity grant relief in cases of fraud and mistake which cannot be obtained in courts of law. In such cases a court of equity may carry the intention of the parties into execution where the written agreement fails to express that intention. In general, the mistakes against which a court of equity relieves are mistakes in fact.* It is well settled, as a rule of evidence, in courts of equity as well as in courts of law, that parol evidence is inadmissible to contradict or substantially vary the legal import of a written agreement. And this rule is founded on the soundest principles of reason and policy as well as on authority.' "When parties have re- duced their contracts to writing, conversations controlling or changing their stipulations are, in the absence of fraud, no more received in a court of equity than in a court of law.* It 1 Gresley's Eq. Ev. 38-42; 2 Daniell, » Sprigg v. Bank of Mount Pleas- 395-407. ant, 14 Pet. 201, 306. 2 Hunt V. Rousmanier, 8 Wheat- ^ Willard v. Tayloe, 8 Wall. 557, 573. 174, 311, 312. § 510.] EVIDENCE. 519 is a firmly settled principle that parol evidence of an oral agreement alleged to have been made at the time of the draw- ing, making or indorsing of a bill or note cannot be permitted to vary, qualify or contradict, or add to or subtract from, the absolute terms of the written contract.' No principle of evi- dence is better settled at common law than that, when persons put their contracts in writing, it is, in the absence of fraud, accident or mistake, conclusively presumed that the whole agreement, and the extent and manner of their undertaking, were reduced to writing.^ It can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and a fc^tiori not in order to contradict them. An express contract of the parties is always admissible to supersede or vary or control a usage or custom, for the lat- ter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied or contradicted by a usage or custom ; for that would not only be to admit parol evidence to control, vary or contradict writ- ten contracts, but it would be to allow mere presumptions and implications properly arising in the absence of any positive expression of intention, to control, vary or contradict the most formal and deliberate declarations of the parties. The prin- ciple is that, while parol evidence is sometimes admissible to explain such terms in the contract as are doubtful, it is not ad- missible to contradict what is plain, or to add new terms.' Un- doubtedly the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proved by parol if, under the circumstances of the particular case, it may properly be inferred that the parties did not intend the written paper to be a complete and final settlement of the whole of the trans- action between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And when the writing itself upon its face is couched in such terms as import a complete legal iForsythe v. Kimball, 91 U. S. 391, 'De Witt v. Berry, 134 U. S. 306, 394; Specht V. Howard, 16 Wall. 564 313; The Reeside, 3 Sumner, 567. 2 Bast V. Bank, 101 U. S. 93, 96. 520 FEDERAL EQUITY PEOCED0BE. [§§ 511, 512. obligation, without any uncertainty as to the object or ex- tent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing.' And where a written contract for the sale of a machine was in all respects unambiguous and definite, and contained no guaranty that the machine purchased should have a certain capacity, and there was no pretense of any fraud, accident or mistake in making the contract, parol evidence was held inadmissible to prove that there was a parol contract of warranty or guaranty col- lateral to the contract of purchase and sale, stipulating that the machine purchased should have a certain capacity.^ §511. Same. — Extrinsic evidence to identify property and persons. — Parol and extrinsic evidence is admissible to identify the property and persons embraced in a written instru- ment, and to which it is to be applied, and to prove their exist- ence, location and character ; such evidence does not vary or contradict the terms of the written instrument, but it simply identifies the property which is to pass under it.' § 512. Same — Patent ambiguities. — " It is a principle rec- ognized and acted upon by all courts of justice, as a cardinal rule in the construction of contracts, that the intention of the parties is to be inquired into; and, if not forbidden by law, is to be effectuated. But the law has laid down certain rules, de- claring by what kind of proof, in any given case, this intention is to be ascertained. Amongst these rules, a leading one in relation to written contracts, to which class the one in ques- tion belongs, is this: That extrinsic evidence is not admissible to explain a patent ambiguity, that is, one apparent on the face of the instrument; but that it is admissible to explain a latent ambiguity, that is, one not apparent on the face of the instrument, but one arising from extrinsic evidence ; for this is but to remove the ambiguity by the same kind of evi- iSeitz V. Brewers' Refrigerating Blake v. Doherty, 5 Wheat. 359; Co., 141 U. S. 510. 517. Deery v. Crary, 10 Wall. 263; Loner- 2 Seitz V. Brewers' Refrigerating gan t. Buford, 148 U. S. 581 ; Irwin v. Co., 141 U. a 510, 516, 517; Van San Francisco Sav. Union, 136 U. S. Winkle v. Crowell, 146 U. S. 43. 578; Bailey v. Hannibal & St J. R. 3 Brown v. Huger, 21 How. 305; Co., 17 Wall. 96. § 513.] EVIDEKOE. 521 dence as that by which it is created. The rule thus stated seems to be in itself quite plain and intelligible, and yet much difficulty has arisen in its application. The illustra- tion most usually given of the operation of this rule in the ad- mission of extrinsic evidence is that of the description of a devisee, or of an estate, in a will, where it turns out that there are two persons, or two estates, of the same name and descrip- tion. These, however, are put, not as measuring the extent of the rule, but as exemplifying its application; and all other cases within the scope of the principle are, in like manner, open to explanation by the same kind of evidence. Accord- ingly, it is laid down, by a very accurate writer on the subject of evidence, that extrinsic parol evidence is admissible to give effect to a written instrument, by applying it to its proper sub- ject-matter." ^ § 513. Admissibility of extrinsic evidence in the interpre- tation of deeds and wills — English rule as stated by Mr. Spence. — " It is now proposed," said Mr. Spence, " to take a general view of the rules which have been established for the admission of extrinsic evidence, — that is, of circumstances not forming part of the instrument itself in the interpretation of written instruments, more particularly in reference to deeds and wills. " The general rule, as will have been collected from what has been already stated, is that a deed or other instrument, being produced and proved, is conclusive upon the rights of the parties. By a fundamental principle of law an obligation ,by deed can only be altered by deed; so it is a principle of the common law which prevailed before the statute of frauds, that parol evidence is not admissible to vary or add to a written instrument; to admit it as regards deeds would be, as Lord Bacon observed in the illustrations of his maxims, that parol evidence shall not be admitted to explain an ainhiguitas patens, to allow that to pass by deed which the law appoints shall not pass but by deed ; and in other cases it would be virtually to 1 Barbour, Justice, in Bradley v. Reed v. Proprietors of Locks & Steam Packet Co., 13 Pet. 89, 97. And Canals, 18 How. 374; Atkinson v. on this subject see the following au- Cummins, 9 How. 479; Patch v. thorities: Boardman v. Reed, 6 Pet. White, 117 U. S. 310. 338; Wilkins v. Allen, 18 How. 385; 522 TEDEEAL EQUITY PEOCEDUEE. [§ 514 give to oral a superior force to written evidence ; to endeavor to subtract is the same in principle as to seek to add to a writ- ten instrument. With respect to instruments which are of a nature required by the statute of frauds to be in writing, the rule has the additional force of the statute. The rules of evi- dence are universally the same, as regards the point now under consideration, in the courts of law and of equity ; therefore, parol evidence offered for the purpose of substantially altering a written instrument cannot be received in a court of equity any more than in a court of law. Lord Cowper intimated an opinion that the court, at least the court of chancery, in con- struing wills, might assist its judgment by parol evidence gen- erally, in cases extremely dark and doubtful ; but since the time of Lord Hardwicke this has been considered as exploded. One exception to the rule above mentioned, in both courts, is the date of the deed, which is never conclusive as to the time of the delivery, from which alone the deed takes its operation ; for it is open to the party in all cases to show that the deed was executed or delivered on a day different from that whereon it appears to bear date. The rule is also subject to the follow- ing qualification, namely: When one consideration is recited in a deed, any other consideration which is not in contradic- tion of the instrument may be proved. . . . The general rule above mentioned excludes from the consideration of the court every question but this: What is the mecmvng of the words which the parties have used? The question is not broadly what was the intention of the parties; what the meaning of the words indicates must be taken to have been the intention." ' §511. Same — When the evidence will be admitted. — " Now, in reference to the admission of extrinsic evidence, with a view to ascertain the meaning of the words, it is to be ob- served that, in relation to the subject of every gift or -transfer, and the person who is the olject of the gift or transfer, the words used must be sjJ^mbol of something' extraneous to the instrument ; we must, therefore, in all cases institute an inquiry beyond the instrument, in order to ascertain what or who in particular is meant by the words used. The words may have received a technical meaning, so as to be applicable, strictly or 11 Spence, 553, 554, 555, 556. § 514.] EVIDENCE. 523 primarily, to a subject or person of a particular kind or char- acter only, as is the case with the words ' messuage ' and ' child ; ' still we must ascertain, by inquiring out of (that is, beyond) the instrument, what messuage is meant, and who is the indi- vidual who answers to the description of child. An inquiry of a similar nature, indeed, is sometimes resorted to, even to ascertain what is to be considered as the primary or legal im- port of the words used. Thus, on the hearing of a demurrer which raises a question as to what description of the thing is to be considered in law as intended by some particular expres- sion, the judge may inform himself, from dictionaries or books relating to the particular subj^t, as to the meaning of the word. The judge may do the same at a trial before a jury; though if he show the books to the jury, they are not considered as evi- dence, but as the grounds on which he founds his opinion; just as when he cites authorities for any point of law which he lays down, in regard to the construction of the words of gift or of limitation in the instrument. " As regards the words of gift or limitation, or those which point out the nature and extent of the interest intended to be conferred, here the words are not symbols of things ; they are creative, not descriptive ; generally speaking, therefore, it may be expected that they will not call for any explanation beyond what they themselves afford ; but where the quantity of inter- est given or disposed of by a testator is in dispute, the words may here also bear different meanings under different circum- stances ; and the court at least, in some cases, may look out of the will, and be guided in the construction of it by the effect, if any, which the circumstances of the case may have upon it, " It being, then, the object to ascertain the meaning of the words as used, the judge or jury can hardly be in a condition to do this, and to apply the words used to the proper subject and the proper object, and in the proper way, unless they can be placed, as it were, in the position of the parties who used the words. Accordingly it is the settled rule as regards a will, where the meaning of the terms is not positively fixed, that evidence may be given as to all the surrounding circumstances which influenced the mind of the person who executed the in- strument; just as to understand the meaning of any writer we must first be apprised of the persons and circumstances 524 FEDERAL EQUITY PEOCEDUEE. [§ 514. that are the subjects of his allusions and statements. Indeed, it is laid down that it is the duty of the court to make all proper inquiries for this purpose. For instance, where the state of the property will show in what sense a testator has used the words to be found in his will, resort may in some cases be Jiad to evidence directed to that point. Thus, the state of the testator's funded property may be resorted to in order to show whether a bequest of stock is pecuniary or spe- cific. So extrinsic evidence, such as contemporaneous exposi- tion and ancient usage, is admissible for the purpose of con- struing the words of ancient charters. It may also be resorted to for explaining the meaning of the terms in contracts to which a peculiar and technical meaning has been annexed by custom and usage; also in some cases to ascertain a fact col- lateral to the written instrument, in order to explain the mean- ing where the instrument is equivocal, provided the evidence adduced in explanation be consistent with the written docu- ment; also to annex consequences and incidents to written contracts in mercantile transactions. It has also been admit- ted in contracts between landlord and tenant, and all other transactions of life in which known usages have been estab- lished and prevailed ; for it is presumed that in such cases the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but a contract with reference to then known usages. Even in the case of a statute, universal usage has sometimes been resorted to for the purpose of explaining doubtful terms. But when the terms of an ancient charter — and it must be the same with any other document — are not in themselves doubtful, either from the use of words which are equivocal or obscure or which are doubtful in point of legal construction, evidence of usage can- not avail. Usage may be admissible to explain what is doubt- ful, but it is never admissible to contradict what is plain. "Whether there is such a doubt is a question of law to be deter- mined by the court of construction upon reading the instru- ment itself. . . . Notwithstanding the rule of law which makes a will void for uncertainty where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, courts of law and equity, in certain special cases, will admit extrinsic evidence of the in- § 516.] EVIDENCE. 525 tention itself, in order to make certain the person or thing in- tended, where the description in the will is insulBcient for the purpose; but it is now settled that the only cases in which evidence to prove intention is admissible are those in which the description in the will is unambiguous in its applicatiou to each of several subjects or objects, that is, persons or things, . . . A latent ambiguity is created by parol, and it is rea- sonable that all the evidence applicable to the subject should be received ; indeed, it may be considered as an universal rule that where evidence is admissible on one side it must be so on the other."! §515. Same — Same — Extrinsic evidence to repel pre- sumptions of law relating to legacies. — " There is one branch of this subject, namely, the admission of extrinsic evidence to repel presumptions of law, which is of such continual occur- rence in the court of chancery, in questions relating to legacies and portions to children given by will, and in regard to trusts arising by operation of law, that it deserves particular atten- tion. The law draws certain presumptions from particular facts, but these presumptions may be repelled ; in fact, the court will not permit them to stand when they are at variance with the real intention as established by evidence ; the cases as respects some branches of this subject are not exactly uniform. In considering this subject a distinction is to be observed between legal presumptions arising upon the words of the instrument as to its operative effect — that is, its construction, — and pre- sumptions which arise upon collateral facts, independently of the operation of the instrument, ^e?* se, as ascertained by legal construction ; it is, perhaps, to the latter kind of presumptions, and those of another kind, namely, those which are raised against the apparent meaning of the instrument, that extrinsic evidence, by our law, can, strictly speaking, alone be applied ; what are to be considered as cases of construction in this sense, as distinguished from cases of presumption, as regards the in^ terpretation of wills, is, as will be seen, invohed in some ob scurity. "Where, said Lord Thurlow, the presumption of law arises from the construction of words simply qua words, no evidence can be admitted. The rule here adverted to is stated 1 1 Spence, 556-564. 526 FEDERAL EQTJITT PEOCEDUEE. [§ 515. by Lord Chancellor Sugden thus: 'If there be a positive rule of construction, you cannot receive evidence to raise a presump- tion against it, because that would be a violation of the true construction.' The following are instances of the application of the rule of construction in the sense here used: "Where the same specijw thing is given twice to the same legatee in the same will, or in the will and again in a codicil ; and where two legacies of qucmtity of equal amount are bequeathed to the same legatee in one and the same instrument, in both cases the- second bequest is construed to be a mere repetition of the legacy. On the other hand, when two legacies of quantity of unequal amount are given to the same person in the same in- strument, the one is not considered to be merged in the other, but the latter will be construed to be cumulative, and the leg- atee is held to be entitled to both. Where two legacies are given sinipUoiter to the same legatee by different instruments, in that case also the latter is construed to be cumulative whether its amount be equal or unequal to the former, so that the legatee will take both ; to hold otherwise, as it has been observed, would manifestly contradict the effect of the one or the other instru- ment ; in the case of a stranger, particularly, there is not any ground for presuming beforehand that the testator did not mean that each instrument should have a separate operation. The prima facie in each of these cases is liable, according to the ordinary rules which apply to every case of construction, to be controlled by an intention to the contrary to be collected from the instruments, the whole of which and every part of them is to be looked to : the tendency of the modern decisions has been to construe wills in favor of cumulation. Where, as in the cases above adverted to, there is an acknowledged rule of construction applicable to the case, so that the intent in legal acceptation can be collected, parol evidence cannot be resorted to ; in particular, where by construction it is held that the leg- acies are cumulative, parol evidence is not admissible against that construction, because that would be evidence against the instrument, and not against a presumption. If you construe a will there is nothing to presume, for the intention is secured, not by presumption, but by construction. "Where, however, by presumption a conclusion is drawn against the apparent effect of an instrument, thAt presumption § 516.] EVIDENCE. 627 may clearly be rebutted by parol evidence. The effect of the evidence in such cases is not to show that the testator did not mean what he has said, but, on the contrary, to prove that he did mean what he has expressed. Thus, when the court raises the presumption against the intention of a double gift, by reason that the sums and the motive are the same in the two instruments, it will receive evidence to show that the testator actually meant the double gift that he has expressed. But where two legacies are so given that the court does not raise a pre- sumption against their being double, parol evidence is inad- missible to show that the testator intended the legatee to take one only, for that would be in opposition to the will; the lega- tee does not take both by virtue of any presumption ; for then parol evidence would be admissible, but directly under the words of the instrument. . . . The question frequently arises in cases depending upon acts partly testamentary and partly inter vivos, as of a legacy given, and then an advance- ment. As to these cases, evidence has been received to explain the act of ths advancement and to show that it is to go in satis- faction of the legacy, and for that purpose it is clearly admissi- ble ; for it is only offered to show that the gift is satisfied. The law raises a presumption against double provisions in the nature of portions; thus if a parent or a person in loco parentis is, simpliciter, under an obligation to make a provision for a child, and afterwards make a provision of the same nature for the same child by his will — or when a provision is made, first by a will and then by a settlement, and the provisions are of the same nature, or with trifling differences only, — it is presumed prima facie that the settlor does not mean a double provision, but that the latter is to go in satisfaction of the former in the whole ov pro tanto. But when the two provisions are of a dif- ferent nature, the two instruments are considered to afford in- trinsic evidence in favor of a double provision. Parol evidence is clearly admissible to rebut the general presumption against double portions; that is, to support ttie instrument."^ § 516. Yice-Chancellor Wigram's seven propositions re- garding the construction of wills.— Yice-Ohanoellor, Sir James Wigram, in his work on Extrinsic Evidence, extracted from 1 1 Spence, 564-568. 528 FEDEKAL EQUITY PEOOEDUBE. [§ 516. the English cases at law and in equity seven propositions, rela- tive to the construction of wills and the admissibility oi ex- trinsic evidence in their interpretation. These propositions are as follows: " Proposition I. A testator is always presumed to use the words in which he expresses himself, according to their strict and primary acceptation, unless, from the context of the will, it appears that he has used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed. " Proposition II. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so inter- preted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular and secondary interpretation, and although the most conclusive evi- dence of intention to use them in such popular and secondary sense be tendered. " Proposition III. "Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words, so interpreted, are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case to see whether the meaning of the words be sensible in any popular or secondary sense, of which, with reference to these ci/rcumstcmces, they are capable. "Proposition IV. Where the characters in which a will is written are difficult to be deciphered, or the language of the will is not understood by the court, the evidence of persons skilled in deciphering writing, or who understand the language in which the will is written, is admissible to decla/re what the characters are, or to inform the court of the proper meaning of the words. " Proposition Y. For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quan- tity of interest intended to be given by his will, a court may § 517.] EVIDENCE. 529 inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the cir- cumstances of the testator and his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of inter- est he has given by his will. " The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can in any way be made ancillary to the right interpretation of a testator's word. " Proposition YI. "Where tfee words of a will, aided by evi- dence of the material facts of the case, are insufficient to de- termine the testator's meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases, see Proposition VII) will be void for un- certainty. " Proposition VII. Notwithstanding the rule of law which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to de- termine the testator's meaning, courts of law, in certain spe- cial cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose. " These cases may be thus defined : Where the object of a testator's bounty or the subject of disposition {i. e., the person or thing intended) is described in terms which are applicable indifferently to more than one person or thing, evidence is ad- missible to prove which of the persons or things so described was intended by the testator." ^ § 517. Extrinsic evidence admissible to correct fatal mis- description of real estate in a will. — A testator by his will devised lot number six, in square four hundred and three, with the improvements thereon, to his brother. It was held by the United States supreme court that extrinsic evidence was ad- missible to show that the testator did not own the lot described in the will, and that the lot had no improvements on it ; but that the testator did own lot number three in square number 1 Wigram's Extrinsic Evidence. 34 530 FEDERAL EQUITY PEOCEDUEE, [§ 517. four hundred and six, and that it did have improvements on it, and that it was the intention of the testator to devise the last named lot to his brother. In delivering the opinion of the court, Bradley, Justice, said: " Now, the parol evidence discloses the fact that there was an evident misdescription of the lot intended to be devised. It is shown, first, as before stated, that the testator, at the time of making his will and at the time of his death, did not, and never did, own lot six in square four hundred and three, but did own lot three in square four hundred and six ; secondly, that the former lot had no improvements on it at all, and was located on Mnth street, betAveen I and K streets, whilst the latter, which he did own, was located on E street, between Eighth and Ninth streets, arid had a dwelling-house on it, and was occupied by the testator's tenants — a circumstance which precludes the idea that he could have overlooked it. It seems to us that the evidence, taken in connection with the whole tenor of the will, amounts to a demonstration as to which lot was in the testator's mind. It raises a latent ambiguity. The question is one of identification between two lots, to determine which was in the testator's mind, whether lot three, square four hundred and six, which he owned, and which had improve- ments erected thereon, and corresponded with the implications of the will, and with part of the description of the lot, and rendered the devise effective ; or lot six, square four hundred and three, which he did not own, which had no improvements thereon, and which rendered the devise ineffective. . . . It is settled doctrine that, as a latent ambiguity is only dis- closed by extrinsic evidence, it may be removed by extrinsic evidence. Such an ambiguity may arise upon a will, either when it names a person as the object of a gift, or a thing as the subject of it, and there are two persons or things that an- swer such name or description; or secondly, it may arise when the will contains a misdescription of the objects or sub- jects: as where there is no such person or thing in existence, or, if in existence, the person is not the one intended, or the thing does not belong to the testator. The first kind of am- biguity, where there are two persons or things equally answer- ing the description, may be removed by any evidence that will have that effect, either circumstantial or declarations of the .§ 518.] EVIDENCE. 531 testator. "Where it consists of a misdescription, as before stated, if the misdescription can be struck out, and enough re- main in the will to identify the person or thing, the court will ■deal with it in that way ; or, if it is obvious mistake, will read it as if corrected. The ambiguity in the latter case consists in the repugnancy between the manifest intent of the will and the misdescription of the donee or the subject of the gift. In such a case, evidence is always admissible to show the condi- tion of the testator's family and estate, and the circumstances by which he was surrounded at the time of making his will. ' Where the name or description of a legatee is erroneous, and there is no reasonable doubt as to the person who was intended to be named or described, the mistake shall not disappoint the bequest. The error may be rectified : (1) By the context of the will ; (2) to a certain extent by parol evidence. A court may inquire into every material fact relating to the person who claims to be interested under the will, and to th« circum- stances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person intended by the testator. . . . Mistakes in the description of lega- cies, like those in the description of legatees, may be rectified by reference to the terms of the gift, and evidence of extrinsic ■circumstances, taken together. The error of the testator, in the proper name of the thing bequeathed, doth not hurt the validity of the legacy, so that the body or substance of the thing bequeathed is certain. ... In view of the principles advanced in these authorities, the case under consideration •does not require any enlargement of the rule ordinarily laid down, namely, the rule which requires in the will itself suffi- cient to identify the subject of the gift, after striking out the false description." ^ § 618. The best evidence must be adduced.— "The rule of law is, that the best evidence must be given of which the nat- xire of the case is capable ; that is, that no evidence shall be received which presupposes greater evidence behind, in the party's possession or power. The withholding of that better evidence raises a presumption that, if produced, it might not ■operate in his favor. For this reason, a party who is in pos- session of an original paper, or who has it in his power, is not 1 Patch V. White, 117 U. S. 310. 532 FEDEEAL EQUITY PEOCEDUEE. [§ 518. permitted to give a copy in evidence, or to prove its contents." ^ " One of the general rules of evidence, of universal application, ' is that the best evidence of disputed facts must be produced of which the nature of the case will admit. This rule, speak- ing technically, applies only to the distinction between primary and secondary evidence ; but the reason assigned for the appli- cation of the rule in a technical sense is equally applicable, and is frequently applied, to the distinction between the higher and inferior degree of proof, speaking in a more enlarged and general sense of the terms, when tendered as evidence of a fact. The meaning of the rule is, not that courts require the strong- est possible assurance of the matters in question, but that no evidence shall be admitted which, from the nature of the case, supposes still greater evidence behind in the party's possession or power; because the absence of the primary evidence raises a presumption that, if produced, it would give a complexion to the case at least unfavorable, if not directly adverse, to the in- terest of the party. This is the reason given for exacting, in all cases, the primary evidence, unless satisfactorily accounted for. For a like reason, even in cases where the higher and infe- rior testimony cannot be resolved into primary and secondary, technically, so as to cbmpel the production of the higher, and the inferior is, therefore, admissible and competent without first accounting for the other, the same presumption exists in full force and effect against the party withholding the better evi- dence ; especially when it appears, or has been shown, to be in his possession or power, and must and should, in all cases, ex- ercise no inconsiderable influence in assigning to the inferior proof the degree of credit to which it is rightfully entitled, . . . If the weaker and less satisfactory evidence is given and relied on in support of a fact, when it is apparent to the court and jury that proof of a more direct and explicit charac- ter was within the power of the party, the same caution which rejects secondary evidence will awaken distrust and suspicion of the weaker. and less satisfactory; and that it may well be presumed, if the more perfect exposition had been given, it would have laid open deficiencies and objections which the more obscure and uncertain testimony was intended to conceal." ' iTayloev.Riggs,lPet.591;DeLane 5 Cranch, 13; McPhaul v. Lapsley,30 V. Moore, 14 How. 258; Fresh v. Gil Wall. '364. son, 16 Pet. 337; Cook v. Woodrow, ^ciifton v. United States, 4 How. 343, 247, 34a §§ 519-621.] EVIDENCE. 633 § 519. Same— Written instruments.— Itisageneralruleof the law of evidence that secondary evidence of the contents of ■written instruments is not admissible when the originals are within the control or custody of the party .^ § 520. The evidence must be confined to the matters in issue,— It is a fundamental rule in equity procedure, as well as in trials at law, that the evidence must be confined to the matters in issue in the pleadings. The reasons of the rule are, that the plaintiff cannot obtain relief upon a case not made in his bill, but must aver every essential ultimate fact necessary to the relief soughl^ and the defendant cannot avail himself of any matter of defense which is not stated in his answer; and besides, each party is entitled to have notice from the pleadings of his adversary of the evidence which he intends to produce at the hearing. But the rule does not re- quire either party to state his evidence upon the record ; all that is necessary is, that the pleadings contain a statement of all the ultimate facts.' § 521. Same — Confessions and admissions. — Whereaparty to a suit in equity intends to prove that his adversary has made confessions and admissions, and he intends to use such confessions and admissions as evidence of facts at the hearing, it is necessary that the admissions and confessions be alleged in the pleadings, in order that the party against whom they are to be read may have an opportunity to meet them by evidence or explanation ; the rule applies alike to both oral and written confessions and admissions, to letters and conversations. It is only when they are to be used as admissions that conversa- tions and letters are required to be noticed in the pleadings.' 1 Sebree v. Dorr, 9 Wheat. 558; Sandys, 18 Ves. 302; Powys v. Mans- Dwyer v. Dunbar, 5 Wall. 318; Phila- field, 6 Sim. 565; Smith v. Clark, 13 delphia &■ Trenton R. Co. v. Stimp- Ves. 477; Clark v. Periam, 3 Atk.338, son, .14 Pet. 448; Riggs v. Tayloe, 9 340; Sidney v. Sidney, 8 P. Wms. 269; Wheat. 488. 1 Daniell, 340; 2 Daniell, 411-414. aWhaley v. Norton, 1 Vern. 483; 3 2 Daniell, 414,415, citing Houl- Gordon v. Gordon, 3 Swanst. 472; ditch v. Marquis of Donegal, 1 MolL Clark v.Turton, 11 Ves. 240; Williams 365; Blocker v. Phepoe, 1 Moll. 354; V. Llewellyn, 2 Y. & J. 68; Hall v. Hall v.Maltby,6Prioe,240,348; Mull- Malt by, 6 Price, 240; Montesquieu v. hoUand v. Hendrick, 1 MolL 359. CHAPTEE XX. INJUNCTIONa § 533. t)eflnition and classifioation of injunctions — Temporary and perpetual injunctions. 523. Same — Common and special injunctions. 534. Same — Prohibitory and man- datory injunctions. 635. Jurisdiction and power of the federal courts to grant in- junctions. 536. Same — Federal courts may grant injunction where it may be granted by English chancery. 627. Writs of injunction granted by supreme court justices and circuit court judges. 538. Writs of injunction granted by district judges. 529. No injunction granted until after bill filed. 630. Same — Bill must contain spe- cial prayer for writ of in- junction. 531. Bill for injunction must be verified. 533. No provisional special writ of injunction granted without notice. 533. Same — Temporary restrain- ing order pending applica- tion for special injunction. 534 Same — Same — Application for special injunction— Pro- cedure.' 535. Injunction bond — Condition. 536. Motions to dissolve injunc- tions — Abatement. 537. Motion to dissolve the com- mon injunction. 538. Motions to dissolve special in- junction — The rule as stated by Justice Story. 539. Assessment of damages on dis- solution of injunction. 540. Injunctions to restrain pro- ceedings at law. 541. Injunctions issued by federal courts to stay proceedings in state courts. 643. Injunctions to relieve against judgments — The rule stated by Chief Justice Marshall, 543. Injunctions issued by federal courts against judgments in state courts. 544. Injunction to restrain threat- ened defenses to a " proposed action at law." 545. Restraining the prosecution of suits in foreign jurisdic- tions. 546. Injunction to restrain the col- lection of taxes. 547. Same — Overvaluation of prop- erty for taxation. 548. Same — Same — National bank stock. 549. Injunctions against unlawful restraint of trade and com^ merce. 550. Same — Not granted by fed- eral courts to restrain mo- nopoly in necessary of life. 551. Injunctions against unlawful restraint of the import trade. 553. Injunctions against violation^ of the acts to regulate inter- state commerce. 553. Injunctions against infringe- ment of common-law trade- marks. 554. Injunctions against infringe- ments of registered trade- marks. § 522.] INJUNCTIONS, 535 § 555. Injunctions against infringe- ments of oopyrights. 556. Same — Dramatic and musical compositions — Procedure — Writ of injunction served anywhere in the United States. 557. Eestraint of copyright frauds. 558. Injunctions against infringe- ments of patents for inven- tions. 559. Injunctions against execu- tive state oflScers — No suit against a state maintain- abla 660. Same — Rules announced iS^ the United States supreme court since the Eleventh Amendment. 561. Same — Restraint of state rail- road commissions. ) 563. Injunctions to restrain waste and trespass. 563. Injunctions to restrain nui- sances, private and public. 564. Same — Obstruction of inter- state commerce. 565. Summary of the ordinary ob- jects of the writ of injunc- tion. Injunctions in removal cases continued. No injunction against appoint- ment or removal of public oflScers. 568. No injunction to stay criminal proceedings. 569. Breach of injunctions. 570. Same — Contempt — Power to punish. 57 1. Same — Procedure in contempt cases. 566. 567. § 622. Definition and classification of injunctions — Tem- porary and perpetual injunctions. — A writ of injunction is a judicial writ, issued out of a court of equity, or a court possessing equity powers, in a suit therein pending, upon the verified bill of plaintiff showing special cause, and granted by the fiat or order of the court or a judge thereof, restraining the defendant from doing a particular act, or restraining him from refusing to do a particular act, in guch writ mentioned and particularly specified, according to the exigency of the case made by the bill ; it being averred in the bill that the doing, or the omission to do, the particular act is injurious to the rights of plaintiff.' The power to issue such writs is a part of that system of pre- ventive justice and extraordinary jurisdiction inherent in all governments; this power was fully developed and administered in the Koman civil law, from which it was adopted in the High Court of Chancery of England ; ^ and it has been vested in the courts of the United States by the federal constitution.' " Injunctions are either provisional or perpetual. Provisional injunctions are such as are to continue until the coming in of 1 1 Smith's Ch. Prao. 585, 586; 3 Dan- iell, 274, 275; Redesdale (6th Am. ed.), 55, 56; Moat v. Holbein, 2 Edw. 188; Sullivan v. Judah, 4 Paige Ch. 444. 2 1 Spence, 321-339, 667-683. 3U. S. Const., art. Ill, sec. 1. 536 FEDERAL EQUITY PEOCEDUEE. [§ 523. the defendant's answer; or until the hearing of the case; or until the master has made his report: perpetual, are such as form part of the decree made at the hearing upon the merits, whereby the defendant is perpetually inhibited from the asser- tion of a right, or perpetually restrained from the commission of an act which would be contrary to equity and good con- science."^ A perpetual injunction forms a distinct subject of relief. " The restraint may be imposed either by a final decree, forbidding the act in perpetuum on establishment of the ad- verse right, or by interlocutory writ, forbidding it pro tempore whilst the right is in litigation."^ Injunctions are, therefore, either (1) perpetual, or (2) temporary. The writ issued pend- ing the litigation is called a temporary, interlocutory, prelimi- nary, or provisional writ of injunction. It is issued to prevent irreparable injury, or to preserve the right or subject-matter of the suit until the final hearing of the cause ; or to restrain pro- ceedings at law, or in some other court, until a hearing in equity, where the plaintiff has asserted an equitable claim, right or demand connected with or growing out of the con- troversy, and which cannot be asserted at law.' §523. Same — Common and special injunctious. — In the English chancery practice provisional injunctions are either (1) common injunctions; or (2) special injunctions. The com- mon injunction is one which restrains or stays proceedings at law; according to this practice, the plaintiff, having filed his bill and served a subpoena, is entitled, as of course, to the com- mon injunction (1) upon the default of the defendant in not appearing; (2) upon the default of the defendant in not an^ swering; (3) upon matter confessed by the defendant in his answer. But an injunction to stay proceedings at law might be obtained upon the special circumstances of the case, and it is then called a special injunction. " If the common injunction is obtained before a declaration is delivered it stays all the proceedings at law; if afterwards, it only restrains execution, and the plaintiff at law is at liberty to proceed to judgment." All injunctions, except the common injunction, are granted 1 3 Daniell, 375. 1 Smith's Ch. Prac. 585-626; 3 Dan- 2 Adam's Eq. 194 iell, 374r-365. SRedesdale {6th Am. ed.), 55, 56; § 524.J INJUNCTIONS. 537 upon the special circumstances of the case, whether such cir- cumstances are disclosed by the answer of the defendant or tipon affidavits, and are therefore called special injunctions.' The distinction between common and special injunctions is recognized in the courts of the United States by an equity rule which provides that : " "Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant does not enter his appearance, and plead, demur or answer to the same within the time prescribed therefor by these rules, the plaint- iff shall be entitled, as of course, upon motion, without notice, to such injunction. But special injunctions shall be grantable only upon due notice to the otter party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte if the adverse party does not appear at the time and place ordered." ^ But in practice, in the circuit courts of the United States, the distinction between common and special in- junctions is virtually obsolete, and injunctions to stay proceed- ings at law are usually granted upon the special circumstances of the case, and are special injunctions; still, however, the plaintiff is, under the equity rule quoted, entitled to the com- mon injunction upon the default of the defendant. § 524. Same — Prohibitory and mandatory injunctions. — Considered with reference to the nature and form of the relief, injunctions are (1) prohibitory or preventive; (2) mandatory. An injunction which is merely negative, restraining the defend- ant from doing some contemplated or threatened specific act. Is preventive or prohibitory.' But a court of equity is not al- ways limited to the restraint of a contemplated or threatened action, but may require affirmative action where the circum- stances of the case demand it; such injunction is mandatory, and in form restrains the defendant from refusing to perform the action required by the fiat or order of the court or judge." 1 Adam's Eq. 194, 195, 358, 359; 1 Smith, 1 Kay & Johns. 389; White- Smith's Ch. Prac. 601-613; b Daniell, oar v. Michenor, 37 N. J. Eq. 6; 376-281, 297, 298. Broome v. New York & New Jersey 2 Equity Rule 55. Telephone Co., 43 N. J. Eq. 141 ; Lane 3 1 Smith's Ch. Prac. 585, 586, 587. v. Newdigate, 10 Ves. 194; Rankin v. ^Adam's Equity, 218; In re Len- Huskisson, 4 Sims. 13; Spencer v. non, 166 U. S. 548; Robinson v. Lord Birmingham Ry. Co., 8 Sim. 193, 198; Byron, 1 Bro. C. C. 588; Hervy v. Attorney-General v. Manchester & 538 TEDEEAL EQUITY PEOOEDUEE. [§ 525. Under the interstate commerce act, in a suit between railroads, the defendant companies were enjoined " from refusing to af- ford and extend to " the plaintiffs " the same facilities for an interchange of interstate business between " plaintiffs and de- fendants " as were enjoyed by other railway companies, and from refusing to receive from the plaintiff company cars billed from points in one state to points in another state which might be offered to the defendant companies by the plaintiff." ^ § 525. Jurisdiction and power of the federal courts to grant injunctions. — The power of the federal courts to grant writs of injunction in suits prosecuted before them is derived alone from the federal constitution and laws; the power to grant such writs, and to administer such relief, is a part of the judicial power of the United States vested in the federal ju- diciary by the constitution, and distributed among and pre- scribed to the several courts of the system, by the laws enacted by congress. The supreme law declares that : " The judicial power of the United States shall be Vested in one supreme court, and in such inferior courts as the congress may, from time to time, ordain and establish." ^ And that: " The judicial power of the United States shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party; to controversies between two or more states; be- tween a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states ; and between a state or the citizens thereof, and foreign states, citizens, or subjects. In all cases affecting am.bassadors, other public ministers and con- suls, and those in which a state shall be a party, the supreme court shall have original jurisdiction." ' The constitutional grant of judicial power embraces (1) "cases in law," and (2) " cases in . . . equity;" and these classes of cases are preserved throughout all the judiciary acts passed Leeds Ey. Co., 8 Sim. 436; Earl of iln re Lennon, 166 U. S. 548. Mexborough v. Bower, 7 Beav. 127, " U. S. Const., art III, sec. 1. 133. 3 U. S. Const., art. III. sec. 3. § 525.] INJUNCTIONS, 539 by congress;' and the sixteenth section of the original judi- ciary act provided that " suits in equity shall not be sustained in either of said courts of the United States in any case where plain, adequate and complete remedy may be had at law," ^ which was simply declaratory of the rule which then prevailed in the High Court of Chancery in England in the administra- tion of equitable remedies.' These constitutional and statutory provisions have had the effect to vest in the several courts of the United States, in cases over which they have jurisdiction, respectively, full and com- plete equity power cmd Jurisd^tion, as that jurisdiction was known, deiined, distinguished and administered in England at the time of the adoption of the federal constitution, embracing, among other powers, the power to grant injunctions.* In a case involving the equity jurisdiction and practice, and espe- cially in regard to injunctions, in the circuit courts of the United States, Justice Story stated the doctrine as follows: "The chancery jurisdiction given by the constitution and laws of the United States is the same in all the states of the Union, and the rule of decision is the same in all. In the exercise of that ju- risdiction, the courts of the United States are not governed by the state practice ; but the act of congress has provided that the modes of proceeding in equity suits shall be according to the principles, rules and usages which belong to courts of equity, as contradistinguished from courts of law. And the settled doctrine of this court is, that the remedies in equity are to be administered, not according to the state practice, but accord- ing to the practice of courts of equity in the parent country, as contradistinguished from that of courts of law; subject, of course, to the provisions of the acts of congress, and to such alterations and rules as, in the exercise of the powers delegated 1 1 U. S. Stat at L., oh. 20, p. 73; 18 United States v. Howland, 4 Wheat. U. S. Stat, at L., ch. 137; 24 U. S. 115; Neves v. Scott, 13 How. 271; Stat, at L., ch. 373; 25 U. S. Stat, at Story v. Livingston, 13 Pet. 357; L. ch. 866. Noonan v. Lee, 2 Black, 499; Fletcher n U. S. Stat, at L., ch. 20, sec. 16. v. Morey, 2 Story, 555, Fed. Cas. No. SMcConihay v. Wright, 131 IT. S. 4,864; In re Sawyer, 134 U.S. 209,211; 201; Whitehead v.Shattuck, 138 U.S. Fenn v. Holme, 21 How. 481, 487; 14g_ Thompson v. Railroad Co., 6 WalL 4 Robinson v. Campbell, 3 Wheat. 134; Heine v. Levee Commissioners, 212; Boyle v. Zaoharie, 6 Pet. 658; 19 Wall. 655. 640 FEDERAL -EQUITY PEOCED0EE. [§§ 526, 527. by those acts, the courts of the United States may, from time to time, prescribe. So that, in this view of the matter, the effect of the injunction granted by the circuit court was to be decided by the general principles of courts of equity, and not by any peculiar statute enactments of the state of Maryland." ' § 526. Same — Federal courts may grant injunction where it may be granted by English chancery. — Full and complete chancery jurisdiction is conferred on the courts of the United States, in the classes of cases of which they have cognizance, with the limitation that suits in equity shall not be sustained by them where plain, adequate and complete remedy may be had at law. The rules of the High Court of Chancery of Eng- land have been adopted by the courts of the United States. And there is no other limitation to the exercise of a chancery jurisdiction by these courts in the classes of cases committed to them by the constitution and laws of the United States. In the exercise of this jurisdiction the courts of the Union are not limited by the chancery systems adopted by a state, and they exercise their functions in a state where no court of chancery has been established. The usages of the High Court of Chan- cery in England, whenever the jurisdiction is exercised, govern the proceedings. The .remedies in equity in the courts of the United States are the same, and are to be granted and admin- istered according to the principles, usages and remedies in equity in England at the time our government was established ; and where, under the English chancery system, relief by in- junction can be given, the same or similar relief may be given by the courts of the United States.^ § 527. Writs of injunction granted by supreme court jus- tices and circuit court judges.—^" Writs of injunction may be granted by any justice of the supreme court in cases where they might be granted by the supreme court ; and by any judge of a circuit court in cases where they might be granted by such court. Eut no justice of the supreme court shall hear or allow any application for an injunction or restraining order in any 1 Boyle V, Zacharie, 6 Pet. 658. saw Mining Co. v. South Carolina, estate of Pennsylvania v. The 144 U. S. 550; Georgia v. Brailsford, Wheeling Bridge Co., 13 How. 563 et 3 DalL 402. seq.; In re Debs, 158 U. S. 577; Coo- § 528.] INJUNCTIONS. 541 case pending in the circuit to which he is allotted elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the circuit judge of the circuit or the district judge of the district." ^ "When a suit in equity is pending in a circuit court of the United States and the plaintiff desires to make ap- plication for the issuance of a preliminary writ of injunction in such suit, and the judge of the district court for that dis- trict, and the judge of the circuit court of that circuit, and the justice of the supreme court allotted to that circuit, are all ab- sent from and without the district and circuit, another justice of the supreme court has jurisdiction at any place in the United States to hear and determine such application for an injunc- tion.^ The circuit judges and district judges cannot hear an application for an injunction when they are outside of the cir- cuit where the suit is pending; and the exception in the stat- ute allowing the application to be made to a justice of the supreme court outside of the circuit where the suit is pending, " when it cannot be heard by the circuit judge of the circuit or the district judge of the district," is intended to prevent a fail- ure of justice ; and such a failure of justice would as effectu- ally ensue when the inability of the local judges to hear the application arose from one cause as from another.' § 528. Writs of injunction granted by district judges. — " An injunction shall not be issued by a district judge, as one of the judges of a circuit court, in any case where a party has had a reasonable time to apply to the circuit court for the writ ; nor shall any injunction so issued by a district judge continue longer than to the circuit court next ensuing, unless so ordered by the circuit court." * An injunction issued by the order of a district judge in vacation expires by operation of law at the next ensuino- term of the circuit court, unless it is continued in force by an order of the court.' This provision of the statute lU. S. R S., sec. 719. «U. S. R. S., sec. 719. 2 United States v. L. & P. Can. Co., » Parker v. Judges, 12 Wheat. 561; 4 DilL 601, Fed. Cas. 15.633; Searles In re Dudley, Fed. Gas. 4,114; Gray T. Jacksonville, P. & M. E. Co., 3 v. Chicago, Iowa & N. R. Co., 1 "Woods, 631, Fed. Cas. 13,586. Woodw. 63, Fed. Cas. 5,713. 'Searles v. Jacksonville, P. & M. R Co., 3 Woods, 631, Fed. Cas. 13,586. 642 FEDEEAL EQUITY PEOCEDUEE. [§§ 529, 530. is still in force ; but it does not mean that the circuit court ■when held by the district judge cannot issue the writ as fully and freely in all respects as when held by the circuit justice or judge, or by both. The district judge has full and unrestricted ■power to hold the circuit court for all purposes, including the issuance of writs of injunction; while sitting as circuit judge, his power and authority are co-extensive with the power and authority of any other judge sitting in the same court. The meaning of this statutory provision is, that if the district judge as such, and not as the court, shall in vacation order the issu- ance of an injunction, it continues in force no longer than to the term of the circuit court next ensuing, unless so ordered by the circuit court.' § 529. No injunction granted until after Mil filed. — An injunction will not be granted except upon a bill filed for the purpose of specifically praying an injunction ; nor will an in- junction be granted against any one who is not a party to the suit. Courts of equity adhere very closely to the principle that you cannot have an injunction except against a party to the suit.^ No process, not even a subpoena, is allowed to issue from the clerk's office in any suit in equity in the United States courts until the bill is filed in the clerk's oflice.' One of the articles of impeachment against "Wolsey was that he " granted injunctions without bill." * It is stated by one writer on the subject that the bill should be filed before the application for the writ can be made!' § 530. Same — Bill must contain a special prayer for writ of injunction. — According to the English practice, if the plaintiff requires a writ of injunction against the defendant, he must not only pray for it in the prayer for relief, but also in the prayer for process.' But in equity suits, the prayer for in- 1 Goodyear Dental V. Co. v. Pul- » Equity Eule 11. som, 3 Fed E. 509. < 1 Spence, 370, note /. 2 3 Daniell, 297, 298; 1 Smith's Ch. 6 1 Smith's Ch. Prac. 586. Prac. 586; Fellows V. Fellows, 4 Johns. SRedesdale (6th Am. ed.), 54, 55; ■Ch. 25; Scott v. Donald, 165 U. S. 107, 1 Daniell, 500-503; 1 Smith's Oh. Prac. 117; Iveson v. Harris, 7 Ves. 357; 85, 86, 87. Dawson v. Princeps, 3 Anst. 531; Gadd V. Worrall, 3 Anst. 555. §§ 531, 532.] iNjuNOTioifs. 5i3 junction is regulated by the equity rules, which provide that: " The prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injunction, or a writ of ne exeat regno, or any other special order, pending the suit, is required, it shall be specially asked for;"i and "if an injunc- tion, or a writ of ne exeat regno, or any other special order, pending the suit, is asked for in the prayer for relief, that shall be sufficient without repeating the same in the prayer for process." * § 531. Bills for injunction* must be verified.— Every bill filed to obtain a writ of injunction should be supported by an affidavit of merits verifying the statements, in the bill; the affi- davit is usually made by the plaintiffs, or some of them,' but it may be made by any person acquainted with the facts; when the affidavit is made by an agent, an excuse must be shown why it is not made by the plaintiff. When the plaintiff swears to the bill upon information and belief, he should annex to the bill the affidavit of the person from whom he obtained the in- formation, or the affidavit of some other person who can posi- tively swear to the truth of the material allegations of the bill.' § 532. No provisional special writ of injunction granted without notice. — By an early act of congress it was provided that no writ of injunction shall " be granted in any case with- out previous notice to the adverse party, or his attorney, of the .time and place of moving for the same."* Under this statutory provision. Chief Justice Ellsworth held that: " The provision contained in the statute, that writs of injunction shall not be granted without reasonable notice to the adverse party or his attorney, extends to injunctions granted by the supreme court or the circuit court, as well as to those that may be granted by a single judge. The design and effect, however, of injunc- tions, must render a shorter notice reasonable notice, in the case of an application to a court, than would be so construed 1 Equity Rule 31. 7 Paige Ch. 157; Bank of Orleans v. 2 Equity Rule 23. Skinner, 9 Paige Ch. 305 ; Youngblood 3 1 Smith's Ch. Praq. 595, 596; At- v. Soharap, 15 N. J. Eq. 43. torney-General v. Bank of Chenango, < 1 U. S. Stat, at L., ch. 33, sec. 5, -Hopk. Ch. 596; Campbell v. Morris, pp. 334, 335. 544 FEDERAL EQUITY PEOCEDUEB. [§ 533. in most cases of an application to a single judge ; and until a general rule shall be settled, the particular circumstances of each case must also be regarded." ' The express requirement of notice contained in this statute was omitted in the revision; bnt it is clearly evident from the several provisions of thoi Kevised Statutes that it is contemplated and intended that the requirement of notice shall still be observed, at least in cases of special injunctions.^ Be that as it may, the practice is controlled by an equity rule, promulgated in 1842, which is imperative that special injunctions shall not be granted with- out " due notice " to the adverse party. The fall text of the rule is: " "Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his appear- ance, and plead, demur or answer to the same within the time prescribed therefor by these rules, the plaintifip shall be entitled as of course, upon motion, without notice, to such injunction. But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex jpa/rte, if the ad- verse party does not appear at the time and place ordered. In every case where an injunction, either the common injunction or a special injunction, is awarded in vacation, it shall, unless previously dissolved by the judge granting the same, continue until the next term of the fiourt, or until it is dissolved by some other order of the court." ' §533. Same — Temporary restraining order pending ap- plication for special injunction. — In order to prevent irrep- arable injury after notice, and before the application for an injunction can be heard, it is provided by an act of congress, approved June 1, 1872, that: "Whenever notice is given of a motion for an injunction out of a circuit or district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge."* 1 State of New York v. State of 3 Equity Rule 55. ' Connecticut, 4 Dall. 1. 4 17 u, S. Stat, at L., ch. 255, sea 7, 2 U. S. R. S., sees. 718, 719. p. 197; U. S. R S., sec. 718. § 534.] INJUNCTIONS. 545 § 534. Same— Same— Application for special injunction- Procedm*e. — The usual and proper procedure in applying for special injunctions is as follows: The plaintiff files his bill, and an entry thereof is made upon the order book, as in other cases; he also prepares a written application, either a motion or a petition, addressed to the court, praying for the issuance of the writ upon the averments of the bill. The application, together with the bill, is presented to the court, or to a judge thereof at chambers; and, upon such presentation, the court or judge makes an order in the cause, setting the applica- tion down for hearing at a particular time and place in such order designated, and directing that the application be filed, and the order duly entered (on the order book if in vaca- tion, on the minutes of the court if in term), and that a cer- tified copy of the order be served upon the defendant by the marshal, and that a precept or writ of execution in chan- cery, with such copy of the order attached, be issued by the clerk, directed to the marshal, commanding him to serve the same upon the defendant. The order is then delivered or transmitted to the clerk, who enters the same, and issues and delivers to the marshal the copy and precept, which are by him served and returned, as in the order directed. " At the time and place ordered," the court hears the application; the rule directs that the injunction shall not issue until " after a hearing ; " * at such hearing, either party may read affidavits, and the plaintff may read any admissions in the defendant's answer, if it has been filed.^ If the injunction is granted, an order is accordingly made and entered, and the clerk issues the writ in strict conformity therewith ; the writ of injunction, when issued, should upon its face apprise the party upon whom it is served precisely what he is restrained from doing, without the necessity of resorting to the bill to ascertain what the in- junction means.' If a bond is required by the order of the court, the writ is not issued until the bond has been executed. The writ of injunction shall be under the seal of the court from which it is issued, and shall be signed by the clerk of such court, and shall bear teste of the chief justice of the 1 Equity Rule 55. Fed. Cas. 13,833; Sullivan v. Judah, 4 2 3DanieU, 375, 397. Paige Ch. 444; Moat v. Holbein, 3 3 Sickels V. Borden, 4 Blatchf. 14 Edw. Ch. 18a 35 546 FEDERAL EQUITY PEOCEDUEE. [§§ 535, 536. United States, or, when that office is vacant,- pf the associate justice next in precedence, and shall bear teste from the date on which it is issued.^ §535. Injunction bond — Condition.^ When an injunction is applied for in a circuit court of the United States, the court grants it or not according to the established principles of equity, and not according to the laws and practice of the state; and the court requires a bond or not from the plaintiff, with sure- ties, before the injunction issues, as the court, in the exercise of a sound discretion, may deem it proper for the purposes of justice; and if, in the judgment of the court, the principles of equity require that a bond should be given, it prescribes the penalty and the condition also; and the proper condition of the injunction bond is to answer all damages which the defendant in the suit may sustain in consequence of the injunction being granted, should the same thereafter be dissolved.^ §536. Motions to dissolve injunctions — Abatement. — If the defendant desires to dissolve an injunction, he files a mo- tion or petition praying the dissolution and setting forth the grounds upon which he expects to obtain it, and serves a copy upon the adverse party or his counsel.' An injunction is not dissolved, neither does it become inoperative, by the abatement of the suit in which it was issued. But the rule is that, if the suit abates by the death of either the plaintiff or the defend- ant, the party against whom the injunction issued, or his rep- resentatives, may have an order requiring the plaintiff or his representatives to revive within a stated time, or that the in- junction be dissolved. Where a suit abates by the death of the plaintiff, those who succeed to his rights may apply to the court to punish a breach of an injunction, which has taken place either before or after his death, as soon as they have taken the preliminary steps to revive the suit, either by filing a bill of revivor or otherwise. And it is not necessary for them to wait until a decree of revivor is actually obtained.* Although a bill in equity which relates exclusively to the sep- arate estate of the wife, in which the husband has no interest, lU. S. R. a, sees. 911, 913. 3 1 Smith's Ch. Prac. 600, 601, 602. ZBein v. Heath, 12 How. 168; Bus-