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 http://www.archive.org/details/cu31924020102608 
 
K RRI7VTER 
 
 Equity Pleading and Procedure 
 
 Being a series of lectures delivered before students of the Law Department 
 of the University of Minnesota, 
 
 By Selden Bacon, 
 Instructor in Civil Procedure. 
 
 PRINTED BY 
 
 HALT-, BLACK, & CO. 
 
 MINNEAPOLIS. 
 
 1892. 
 
/3 x 4q ?4- 
 
 Copyright, 1892, by Selden Bacon. 
 
this pamphlet is the result of an attempt to enable a 
 class of law students to obtain, in the brief time allotted' in 
 their course to this subject, such a general idea of the nature 
 of equitable proceedings, that such knowledge of the siibject 
 as they hereafter acquire, may be readily assimilated by 
 them. It is intended simply as a primer. -_... 
 
 Liberal use has in a number of in^tarices been rnade of 
 the work of Mr. Justice Story, but it has not been thought 
 necessary to make specific mention thereof in each place. 
 
TABLE OF CONTENTS. 
 
 LECTURE I. 
 Of the Rise of Chancery Jurisdiction 
 Of Parties, 
 
 capacity to sue 
 capacity to be sued 
 joinder of parties . .' ' 
 
 V,' ta^v 
 
 LECTURE IL 
 Of Bills in Equity, 
 
 kinds of bills 
 structure of bills 
 
 LECTURE III. 
 Of Appearance, 
 
 the clerk's office 
 
 the writ of subpoena . 
 
 appearance to the writ 
 
 default 
 
 motions 
 Of Defense to the Suit, 
 
 by exceptions 
 
 by demurrer 
 
 by plea .... 
 
 
 
 1-10 
 
 
 
 11-12 
 
 
 
 . 12-13 
 
 - . . -V 
 
 
 13-21, 90 
 
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 •'.Hi. 
 
 < . > V ■ 
 
 > .A I ' . 
 
 V 1^; . - 
 
 22^26 
 . 26-38 
 
 •\\\\-y\'\i' i'Av, 
 
 39-40 
 40-41 
 41-43 
 42-45 
 43-45 
 
 45-46 
 46-50 
 50-55 
 
TABLE OF CONTENTS. 
 
 LECTURE IV. 
 
 Of Disclaimers . . ... .... 56-57 
 
 Of Answers ... . . 57-66 
 
 Of Answers, Pleas, and Demurrers . . . . . 66-68 
 
 Of Cross-bills 68-70 
 
 Of Replication, etc., and Issue . . 70-75 
 
 LECTURE V. 
 
 Of Trials, 
 
 method of taking evidence 76-82 
 
 hearing .... ... . . 82-83 
 
 jury trials ... . 83-84 
 
 Of Decrees, 
 
 structure 84-86 
 
 enforcement .... 86 
 
 correction and review ... . 86-87 
 
 Of Equitable Defenses in Actions at Law . . . 87-88 
 
 Conclusion . . . 88-89 
 
 TABLE- OF ERRATA .... 90 
 
 TABLE OP CASES 91-98 
 
 INDEX 99-116 
 
LECTURE I. 
 
 OF THE RISE OF CHANCERY-JURISDICTION 
 AND OF PARTIES IN EQUITY. 
 
 OF THE RISE OF CHANCERY-JURISDICTION. 
 
 As we have seen in studying the rise of the common law 
 courts, their power was of slow growth, their resources were 
 limited, their ability to enforce their judgments slight, in early 
 and turbulent days. In a local or baronial court a poor suitor 
 might get little redress against a wealthy and powerful 
 defendant. In the king's courts justice was administered with 
 a stronger and firmer hand, but still there too the difficulty was 
 apparent. Difficulties were of two great kinds, ist, inefficiency 
 of the courts and judges in the administration of the remedies 
 the law had placed in their hands; and 2nd, inadequacy of the 
 remedies afforded by the common law even when properly 
 administered. In the earliest times the common law actions 
 sufficed for the needs of a simple race which had neither 
 commerce nor wealth, and as long as the courts made no 
 pretence of enforcing their decisions but simply authorized the 
 plaintiff to obtain redress, if he could, by the strong hand, 
 their feebleness was a matter of small moment, but long before 
 the Conquest (1066) the courts had begun to enforce their 
 decrees, and their inefficiency in bringing powerful barons to 
 terms was seriously felt. We very early find complaints of the 
 weakness of the administration of justice, and the complainants 
 asking the strong assistance of the king in their efforts to 
 obtain justice. Such extra-legal applications we find even 
 under the stern rule of the Conqueror, and they appear with 
 growing frequency down to the times of Edward III and 
 Richard II. 
 
 In the earlier days of this long period, the days of greater 
 
2 OF THE RISE OF CHANCERY-JURISDICTION. 
 
 turbulence, and simpler transactions, the applications to the 
 king are apt to be grounded on the poverty or sickness of the 
 petitioner, the wealth and power, or learning, of his opponent, 
 which enables him to set at naught all the efforts of the poor 
 applicant to obtain redress, and they implore as a favor (matter 
 of grace) the aid of the king. 
 
 The inadequacy of the common law remedies, if properly 
 administered, is not for some time seriously felt, but the king 
 in his progresses through the realm meets frequently with 
 applications for relief for petitioners who cannot obtain redress 
 owing to the inefficiency of the courts. Upon these applica- 
 tions to his favor the king would sometimes give aid — he 
 might give or refuse as he would — and being untrammeled by 
 any rules of procedure, could determine on such rude justice 
 as he deemed best adapted to the special case; could draw 
 before him one and another, whenever he had reason to suppose 
 their presence advantageous in making disposition of the case, 
 and could then grant such aid as he saw fit, irrespective of any 
 rules of law, as well as of the position of the individual as 
 plaintiff or defendant. These applications to the king seem 
 from the first to have been based largely on the actual power 
 of the king to bring an oppressor to terms. He can make it 
 very uncomfortable for any man who refuses to do as the king 
 would have him do; his arm is strong. In course of time this 
 power of granting justice gets, as we shall see, to be recognized 
 as a prerogative right of the king. 
 
 As time goes on these applications to the personal power 
 of the king increase in numbers, especially so after the estab- 
 lishment of a separate court of Common Pleas at Westminster. 
 The king, busied with other matters, turns over the considera- 
 tion of some of these questions as they arise to his confidential 
 adviser, his chancellor, the keeper of his seal, or some other 
 officer. 
 
 In the 13th year of the reign of Edward I (1285) the 
 ordinary transactions of commerce and the increase in personal 
 property had reached a point which made an enlargement of 
 the common law remedies absolutely essential. The act of 
 
OF THE RISE OF CHANCERY-JURISDICTION. 3 
 
 parliament of that year resulted, as we have seen, in the 
 development of the common law actions of Case, Trover, and 
 Assumpsit. These developments met for fifty years the main 
 requirements of the increase of business and wealth, and of 
 the growing complexity of business relations. 
 
 Most important factors in the development of the English 
 courts were the continental possessions of the English kings. 
 The long absences of Edward III from England produced two 
 important changes in the framework of the English courts, 
 1st, the permanent establishment of the court of King's Bench 
 at Westminster, a matter which, by its final separation of the 
 ordinary administration of justice from the person of the king, 
 and its committal of the same to trained lawyers, tended largely 
 to give definite form to legal proceedings and to make law 
 more uniform; and 2nd, a thing small in itself, perhaps, but 
 really the origin of the great court of chancery, the issuance 
 oi a general order by the king (Edward III) in 1348, referring 
 all such matters as were of ^ace to the chancellor. This order 
 was intended to turn over generally to this ofificer the consid- 
 eration of the applications for favor which had theretofore 
 been considered by the king, or, on special reference, by his 
 chancellor, as already stated. Your special attention is called 
 to the language of this order [matters of grace), as on its terms 
 depends largely the nature and extent of equity jurisdiction 
 and jurisprudence. 
 
 A glance at the condition of affairs in England will help 
 to make clear the effect of this important order. The strong, 
 firm government of Simon de Montfort and of the Edwards 
 had been rapidly creating a community of wealth and powen 
 About the commencement of the reign of Edward I an astute 
 lawyer had invented the feoffment to uses, and these were now 
 gradually becoming common. Since the time of John, England 
 had been paying tribute to Rome. Aware of their increasing 
 strength the English now refused this payment. The name of 
 Rome was odious to the nation. These are the days of Wick- 
 liffe. Roman law— a body of rules unknown to the English- 
 shared in the general hatred of Rome. And such hatred was 
 
4 OF THE RISE OF CHANCERY-JURISDICTION. 
 
 not altogether ill-founded, for Roman law meant to the 
 Englishman two things, first, that his case would be tried and 
 his conduct judged by rules concerning which he was wholly 
 ignorant and which were not taken into consideration at the 
 time of acting; and second, that his case might be dragged 
 down to Avignon, in the south of France, for consideration, 
 where delay would succeed delay, and procrastination would 
 be worse than defeat. The Barons loudly protested they would 
 never suffer the kingdom to be governed by any laws save 
 those of England. The judges prohibited the citation of the 
 Roman law in the courts, and stood firmly in favor of English 
 liberty against Roman oppression. In the political struggles 
 is seen the reason of the failure of the common law courts to 
 extend their powers under the statute as to writs in consimili 
 casu. 
 
 In the complications of politics the King was now on this 
 side, now on that. His chancellor was, however, always an 
 ecclesiastic. From the time of Richard II till the time of 
 Henry VIII no lawyer was chancellor of England. In shutting 
 out the Roman law from the law courts the judges had banished 
 the Roman doctrine of trusts. Uses were growing in impor- 
 tance, the cestui que use had no legal title, the law courts would 
 not recognize him. If he were defrauded his sole redress lay 
 in applying to the king to right his wrong. This order of 
 Edward HI came just at this time. It threw into the hands of 
 this ecclesiastic chancellor arbitrary power in vast numbers of 
 cases of great importance. For fifty years parliament after 
 parliament remonstrated bitterly against the power of the 
 chancellor under this order. Parliament after parliament was 
 met with the answer that the king would preserve his preroga- 
 tive. The prerogative was recognized and the unpleasant 
 answer deemed sufficient, though some claimed that the 
 prerogative right could not be delegated. After fifty years of 
 unavailing protest against the existence of the chancery juris- 
 diction, lords and commons addressed themselves finally to 
 its regulation. In this effort they succeeded. By the statute 
 of 17 Richard II (1394), parliament indirectly affirmed the 
 
OF THE RISE OF CHANCERY-JURISDICTION. 5 
 
 existence of the court of chancery by restricting the exercise 
 of its powers to cases where no remedy was afforded by the com- 
 mon law. Order and . statute combined gave the court of 
 chancery permanent form and permanent powers and firmly 
 established its jurisdiction. The law courts had now acquired 
 such a degree of efficiency and impartiality as to make any 
 inefficiency of theirs a less evil in ordinary cases than the 
 exercise of arbitrary power by the chancellor. Through the 
 reigns of Henry IV and Henry V the fight over the jurisdiction 
 of the chancellor in common law cases was kept up, but only 
 to result in repeated and final re-enactments of the rule that 
 the powers of chancery were never to be exercised (though 
 the jurisdiction might exist) in cases where a remedy existed 
 at the common law. From the order of 1348 and the statute 
 of 1394 the court of chancery takes its rise. The powers and 
 jurisdiction of equity courts to-day depend on these old 
 provisions and no true understanding of equity jurisprudence 
 and jurisdiction can be obtained without comprehension of the 
 two. 
 
 A curious application of these two rules appears where a 
 case has been brought in chancery where the common law 
 affords a remedy. By the order, the matter being of grace, the 
 chancellor has jurisdiction. By the old act he is forbidden to 
 exercise his jurisdiction. The rule is well settled in such case 
 that if the objection is taken promptly in the pleadings the 
 chancellor will refuse to hear the case, but that if the objection 
 is not taken until final hearing the chancellor may, and 
 ordinarily will, go on and determine the case, and that his 
 determination in such case will be final and not open to question 
 for lack of jurisdiction («). 
 
 Those cases, where chancery once gave a remedy, but was 
 forbidden to do so by these statutes, are said to belong to the 
 obsolete jurisdiction of chancery. They are, you notice, the 
 cases which were originally brought to the King by reason, not 
 of the inadequacy of the common law remedies, but of the 
 inefficiency of the courts. The law courts have become quite 
 
 (a) Wiswall vs. Hall, 3 Paige, 313; Russell vs. Loring, 3 Allen 121; 
 Crump vs. Ingersoll, 49 N.W. Rep. 739. 
 
6 OF THE RISE OF CHANCERY-JURISDICTION. 
 
 as efficient in their sphere as the equity courts in theirs; and 
 there is no need of any such chancery jurisdiction. 
 
 The powers of the chancellor were for hundreds of years 
 purely arbitrary. He, acted as they said, "according to his 
 conscience". His administration of justice was the butt of the 
 wits at the bar of the law courts. The famous characterization 
 by Selden* was true enough even in his day for an epigram. 
 Even during the reigns of Henry VHI and Elizabeth, some 
 chancellors still seem to have considered themselves entitled 
 to decide simply according to their private ideas of right; but 
 with the accession of Francis Bacon to the woolsack came a 
 change. He found the court of chancery the abode of all sorts 
 of evils and delays; cases were years in arrears. In his short 
 , term he cleared up the whole mass of delayed cases. His 
 orderly, legal mind brought forth his Ordinances, which estab- 
 lished the practice of the court and to-day are the ground-work 
 of the rules of equity procedure in both England and the United 
 States. From the Ordinances dates the modern court of equity. 
 They imparted to the procedure and to the rulings of the court 
 a uniformity which they had never before known. One might 
 even say that they introduced there the reign of law. 
 
 Upon these broad foundations the great modern chancel- 
 lors built up the science of equity jurisprudence. The first of 
 them Sir Heneage Finch (Lord Nottingham) showed in his 
 decisions that a new character had been given the court. He 
 announced it as a cardinal principal of the court of chancery 
 that "With such a conscience as is only naturalis et interna, 
 this court has nothing to do; the conscience by which I am to 
 proceed is merely civilis et politica, and tied to certain meas- 
 ures" (a:). 
 
 Withal, the system of equity has retained a power of expan- 
 siveness in all directions utterly unknown to the common law, 
 
 *"Eqmty is a roguish thing. For law we have a measure and know what we 
 "trust to. Equity is according to the conscience of him that is chancellor; and as 
 "that is larger or narrower, so is equity. 'Tis all one as if thev should make his 
 "foot the standard for the measure we call a chancellor's foot. What an uncertain 
 "measure would this be. One chancellor has a long foot, another a short foot, a 
 " third an indifferent foot. 'Tis the same thing in the chancellor's conscience," 
 
 (a) Cook TS. Fountain, 3 Sw, 585, 600. 
 
OF THE RISE OF CHANCERY-JURISDICTION. 7 
 
 and it is the boast of equity that it will not suffer a wrong with- 
 out a remedy. 
 
 For a more full consideration of what I have here been 
 outlining I will refer you to the works mentioned in the foot- 
 notes (a). 
 
 We must now turn our attention for a few moments to the 
 simple ' beginnings of chancery procedure. The court of 
 chancery entered upon its existence with some habits and 
 customs attached to it derived from the desultory action of the 
 chancellor and king in the previous 250 years. Among the 
 most important of these were the following: 
 I.) a method of being set in motion; 
 
 2.) a power to consider the rights of all the different 
 parties interested and to have them all before it at once; 
 
 3.) a method of getting unwilling parties to come before 
 it; 
 
 4.) a method of getting at the facts in the case; 
 5.) a discretion to act, or no, or to such extent only as 
 it chose, as its sense of fairness might require upon all the facts 
 in the case;. 
 
 6.) a discretion to ■ accord whatever remedies seem 
 adapted to the case, and to apportion them in such manner 
 and upon such terms as it saw fit. 
 
 I.) Its method of being set in motion was quite simple. 
 The party aggrieved made out and filed in the chancellor's 
 office a written statement of the facts in the case, showing how 
 wronged he was, and how much in need of the assistance of 
 the chancellor. This statement was called his "bill". 
 
 In the bill the orator, as he was called, simply detailed the 
 facts. No special phraseology was at first required, nor was it 
 necessary that the cause of suit be set out in any such set or 
 definite terms as were required in a declaration in an action at 
 law. The bill was not founded on any regula juris; it frequent- 
 ly sought relief against some rule of law. All the plaintiff had 
 to show was that his was a case entitled to relief under the 
 powers given by the general delegation. Early bills almost 
 
 (n) 1 Pom. Eq. Jur., Sees. 10-67; 1 Spenc. Eq. Jurisd., pp. 87-128. 
 
8 OF THE RISE OF CHANCERY-JURISDICTION. 
 
 universally pray for a subpoena, sometimes for a different writ, 
 sometimes for several different processes; many of them fail 
 to comply with the later rules concerning the requisites of the 
 bill. They always conclude in terms of supplication such as 
 "for the reverence of God, and for work of charity", the plain- 
 tiff sometimes adding "and he shall ever pray for you", which 
 in its modified form of "and your petitioner shall ever pray" 
 was the ordinary conclusion of a bill down to the most modern 
 times. 
 
 A copy of an early bill will be found in Barton's Suit in 
 Equity, note i, page 25, to which your attention is directed. 
 It is a bill belonging to the obsolete jurisdiction of equity. 
 
 2.) It had also been adopted by the chancellors as a car- 
 dinal rule, that they would have all the immediate parties tb 
 the dispute before them in order to hear all sides of the ques- 
 tion, and dispose of all the questions involved at once. And as 
 the number of parties did not in any way obstruct the appor- 
 tionment of relief among the parties, there was nothing against, 
 and everything in favor of the excellent plan of insisting on 
 having everyone before the court whose presence was necessary 
 to a final determination of the questions involved. As it made 
 no difference in apportionment of the relief, what the parties 
 were named, the only classification in entitling the bill and 
 proceedings, was into a), the exhibitors of the bill, the plain- 
 tiffs, b), all others, the defendants; and additional defendants, 
 and sometimes plaintiffs could be brought into the case without 
 serious disturbance, or in a similar way improper parties could 
 be excluded. The whole system was highly flexible. 
 
 3.) The means of bringing unwilling persons before the 
 court was the writ of subpoena, a writ commanding the individ- 
 ual to appear sub poena, (under pain) of the penalties which the 
 chancellor would impose in case of default. 
 
 In ancient times, the chancellor before issuing the writ of 
 subpoena, would examine the bill, and at times would advise 
 with the judges in peculiar instances as to the advisability of 
 taking any steps in the matter. The whole proceeding was 
 eminently an exercise of the prerogative of grace. As bills 
 
OF THE RISE OF CHANCERY-JURISDICTION. 9 
 
 grew more numerous, the certificate of counsel, a trusted and 
 high officer of the court, that the bill was well founded, took 
 the place of the preliminary examination by the chancellor of 
 the bill. 
 
 Sometimes indeed, in the early times before issuance of 
 the writ, the chancellor would write a letter urging the defen- 
 dant to do justice to the plaintiff, and only upon refusal would 
 the chancellor take the step of issuing a subpoena. It was the 
 efficacy of this writ of subpoena which made the contest be- 
 tween chancery and parliament already referred to. 
 
 4.) One of the most important matters brought into their 
 procedure by the chancellors was their habit of having the de- 
 fendant come into court and tell his side of the story himself — 
 a thing never permitted in the common law courts till the 
 most recent times, and then only by statute. This chancery 
 method was not an unnatural method of procedure, but it dif- 
 fered from the common law method in many important ways. 
 
 Defendant was to tell the whole story; he was to give the 
 evidentiary facts; and when he had done so his answer was 
 evidence in the case both for him and against him; moreover 
 all this was reduced to writing and signed by him; differences 
 which in course of time led to important developments of 
 which we shall see more in due time. 
 
 5.) The matters referred to the chancellor were matters 
 of grace. No suitor in equity demanded as of right, the orator 
 humbly petitioned as of grace, and it was oj grace, a favor, when 
 relief was granted him. From this feature of the jurisdiction, 
 spring some of the most important doctrines of equity, juris- 
 prudence ; such as are sustained^ by the maxims, "He who 
 seeks equity must do equity"; "He who comes into equity 
 must come with clean hands"; "Equity aids the vigilant, and 
 not those who slumber on their rights". 
 
 6.) Untrammeled by strict rules of procedure, able to 
 have many differing interests before them at once; able to act 
 or no as of grace; the chancellors saw their opportunity, and 
 felt their power to accord such relief, on such terms, to such 
 persons, and in such measure as they saw fit. Herefrom flows 
 
10 OF THE RISE OF CHANCERY-JURISDICTION. 
 
 the truth of such great maxims as "Equity will not suffer a 
 wrong without a remedy", and the like. 
 
 In addition to these practices the old ecclesiastical chan- 
 cellors brought to their work some knowledge of the Roman 
 law; estates to uses were coming rapidly into favor during 
 the reign of Richard II; and to these two facts we' owe to a 
 great extent the deep root in English equity taken by the doc- 
 trine of trusts, so largely 'borrowed from the Roman law of 
 fidei commissa. > 
 
 The whole proceeding in equity took the form familiar to 
 the ecclesiastics learned in the Roman law. The first step 
 was a statement by the plaintiff to the court, of the facts on 
 which he sought relief. If the chancellor deemed it a case 
 . where he would care to act, he subpoenaed the defendant to 
 come in and tell what he knew of the facts in the case. This 
 written statement by the defendant was termed his answer. 
 In early days the pleading continued at length, but in modern 
 times the only subsequent step in the pleading is a general 
 replication by which the plaintiff reasserts the allegations of 
 his bill, and denies the new matter of the answer. Any con- 
 fession and avoidance of the answer is now done by amendment 
 of the bill, and not by subsequent pleadings. 
 
 Out of the disclosure contained in the answer arose the 
 classes of bills formerly of so great importance, known as bills 
 of discovery, and bills to take testimony de bene esse,oi which the 
 object was solely to obtain a statement of facts, which could be 
 used as evidence. 
 
 Pleadings are fundamentally of the same nature in equity 
 as at law; but pleadings in equity, from the nature of the cases 
 frequently do not admit of the same precision as at law; more- 
 over the disclosures of equity pleading entail an additional 
 element of much importance. But all the general rules of 
 statement which govern pleadings at common law obtain like- 
 wise in equity, though sometimes in a slightly modified form; 
 and in matter of substance the same strictness is required in 
 equity as at law {a). 
 
 (a) Burditt vs. Grew, 8 Pick., 108; Hood vs. Inman, 4 John. Ch., 437. 
 
OF PARTIES. I I 
 
 A. CAPACITY TO SUE. 
 
 The first question as to parties is, of course, who is entitled 
 to exhibit a bill in equity. The following are absolutely dis- 
 abled from exhibiting bills: (outlaws, excommunicates), alien 
 enemies, and persons attaint. All other persons may sue in 
 equity, either in their own persons or vicariously {a). 
 
 A possible exception to these disabilities exists where one 
 under disability is sued at law, and needs the assistance of the 
 Equity coflrt to perfect his defense, and possibly also in a case 
 of alien enemy under some special circumstances {b). 
 
 Under the equity system a suit by the state is brought in 
 the official name of the attorney general as plaintiff and the 
 first pleading is denominated an information instead of a bill. 
 
 Where the suit immediately concerns the rights and inter- 
 ests of the state, the public officer so sues without uniting the 
 name of any other person as plaintiff. But where the suit does 
 not immediately concern the rights or interests of the state, 
 Out only of those under its peculiar protection, or the subject- 
 matter \s publici juris, there the attorney general more common-- 
 ly sues upon the relation of some person indirectly interested, 
 who is named in the bill as relator. The main object of having 
 a relator is to secure to the defendants their costs, in case the 
 information is improperly filed. He is not a party to the suit(ir). 
 It sometimes happens that the relator has an interest in the 
 matter in dispute. In this case he must be joined as a party 
 plaintiff, and his personal complaint incorporated with the in- 
 formation of the attorney general and the whole constitutes, 
 ~ and is termed an information and bill. If the information is 
 well founded, and the bill not, the information will be retained 
 and the bill dismissed {d). 
 
 Corporations and all persons sui juris sue and are sued in 
 their own names. Persons under partial disabilities are (except 
 so far as altered by statute) femes covertes, minors, idiots, luna- 
 tics, and other persons under some special disabilities, as in 
 some states, common drunkards or other persons under guar- 
 dianship. 
 
 (o) story, Eq. Plead., Sees. 50 and 51. (6) Id., Sees. 52 and 53. 
 (c) Atty. Gen. vs. Parker, 126 Mass., 221; Atty. Gen. vs. Butler, 123 Mass., 
 304. (d) Atty. Gen. vs. Parker, 126 Mass., 221. 
 
12 OF PARTIES. 
 
 Infants, in the equity practice, are deemed incapable of ex- 
 hibiting a bill (or acting as relator or guardian) as well on ac- 
 count of supposed indiscretion, as of their inability to bind 
 themselves, or make themselves liable for costs. The infant, 
 therefor, institutes suit either by his guardian, if any, or by his 
 prochein ami (next friend) (a). 
 
 The ;>r(7c/i«« «;«?' is substantially any person who chooses 
 to act whether with or without the infant's consent. 
 
 The prochein ami, however, is treated as an officer of the 
 court, and is held responsible accordingly. Upon .suggestion 
 that the suit is not for the benefit of the infant, the Court will 
 direct an inquiry by one of the masters of the court* and, if he 
 reports that the suit is not for the benefit of the infant, the 
 court will stay proceedings ib).' 
 
 A married woman, under the old disabilities, joined her hus- 
 band except where they had conflicting interests, in which case 
 she sues hy prochein ami, for similar reasons as an infant, (c) 
 but her consent is necessary to the appearance of her prochein 
 'ami {d). 
 
 Idiots and lunatics sue by their guardians or next friends, 
 unless some special appointment is provided for by law or by 
 the court (e). 
 
 Where persons are incapable of acting for themselves, though 
 not strictly idiots or lunatics, the suit may be brought in their 
 name, and the court will authorize some suitable person to carry 
 it on as next friend. In every private suit there must be some 
 person responsible for costs. 
 
 Further information as to the capacity to sue can be found 
 in Story's Equity Pleading, Sees. 49-66. 
 
 B. OF CAPACITY TO BE SUED. 
 
 The state is exempt from suitinitsown courts. Of foreign 
 states and sovereigns, no jurisdiction can be acquired. The dififi- 
 
 *A master in chancery is an oflicer of the court who acts as assistant to the 
 chancellor; to him are commotily delegated m^ny subordinate duties in the course 
 of a suit in equity; among the most important duties so delegated to him are the 
 following, making inquiries, taking the testimony of witnsses, taking accounts in 
 suits, and reporting the results to the chancellor. 
 
 (a) U. S. Equity Rule, No. 87. 
 
 (6) Story, Eq. Plead., Sees. 57 and 60. (c) U. S. Equity Rule, No. 87. (d) 
 Gambee vs. Atlee, 2 De G. & Sm., 745. (e) U. S. Equity Rule, No. 87. 
 
OF PARTIES. 13 
 
 cult questions arising as to jurisdiction of the United States 
 courts in cases where a state is attempted to be sued under sec- 
 tion 2, of article iii, of the U. S. constitution we will not attempt 
 to consider. Bodies politic and corporate, and persons not 
 under disabilities are sued, and defend a suit by themselves. 
 The absolute disabilities to sue are not disabilities to being 
 sued. The defendant cannot plead his own outlawry in his 
 own defense. 
 
 Infants, idiots, and lunatics, defend by their guardians, ad 
 litem, appointed by the court, subject to such orders as the 
 court may make for the protection of the infant, idiot, or luna- 
 tic («). 
 
 But the only step required of the plaintiff as to such par- 
 ties is as follows: If any of the defendants are known to be 
 infants under age, or otherwise under guardianship, the prayer 
 for process in the bill shall state the fact so that the court may 
 take order thereon as justice may require upon the return of 
 the process (3). If the infant appears, he applies for a guardian 
 for himself. In case of his default the court will take order 
 thereon. 
 
 Married women, if under the old disabilities, should have 
 their husbands joined, and their answer should be joint. But 
 where a husband brings suit against his wife, or he is a defen- 
 dant, and she claims in opposition to him, she may answer as 
 a feme sole; as also where she is restored to her capacity by the 
 common law exceptions or by statute. If the husband is out- 
 side of the jurisdiction, the plaintiff can obtain an order that 
 she answer separately, and in some similar cases, the wife may 
 answer separately. Otherwise she can defend only conjointly 
 with her husband (c). 
 
 For a further discussion of the capacity to be sued, I will 
 refer you to Story's Equity Pleading, Sections 67 to 71. 
 
 C. OF THE JOINDER OF PARTIES. 
 
 Courts of equity have adopted two leading principles for 
 determining the proper and necessary parties to a suit, viz: 
 
 (a) U. S. Equity Rule, No. 87. (6) U. S. Equity Rule, No. 23. (c) Story, 
 Bq. Plead., Sec. 71, 
 
14 OF PARTIES. 
 
 First. The rights of no man shall be finally decided by 
 the court, unless he first have his opportunity to be heard — his 
 day in court. 
 
 Second. When a decision is made upon any particular 
 subject matter, the rights of all persons, whose interests are 
 immediately connected with that decision and affected by it, 
 shall be provided for as far as they reasonably may. Hence it is a 
 general rule in equity (subject to exceptions) that all persons 
 materially interested, either legally or beneficially in the subject- 
 matter of a suit, ought to be made parties to it either as plain- 
 tiffs or defendants, however numerous they may be, so that a 
 complete decree may be given that will bind them all (a). 
 Or, as stated by Lord Hardwicke: All persons" ought to be 
 made parties before the court who are necessary to make the 
 determination complete and to quiet the question (b^. 
 
 Considered as a rule this is somewhat vague, but the 
 principle of decision is clear, and there is left a great deal of 
 elasticity in the application of the rule. This very elasticity 
 has enabled the courts to prevent the rule's becoming an in- 
 strument of injustice, for they will not suffer it to be so applied 
 as to defeat the very purposes of justice, if they can dispose of 
 the merits of the case before them without prejudice to the 
 rights or interests of other persons who are not parties, or if 
 the circumstances render the application of the rule wholly 
 impracticable. On the other hand if complete justice between 
 the parties before the court cannot be done without others 
 being made parties, whose rights or interests will be prejudiced 
 by a decree, then the court will altogether stay its proceedings 
 even though such other parties cannot be brought before the 
 court; for in such cases the court will not, by its endeavor to 
 do justice between the parties before it, risk doing positive in- 
 justice to other parties not before it whose claims are or may 
 be equally meritorious {c). 
 
 Sometimes, however, parties in equity, while/w/^r are not 
 necessary or indispensable parties, (though the terms "proper" 
 and "necessary" are frequently confounded) (a?). 
 
 (a) story, Eq. Plead., Sec. 72. (A) Poore vs. Clark, 2 Atk., 515. (c) Hallett 
 TS.Hallett, 2 Paige, 15; West vs. Eandall, 2 Mason, 190-196. (d) Story, Eq. Plead., 
 Sees. 156,186, and 193, notes; Hagan vs. Walker, 14 How., 37; Jerome vs. Mc- 
 Carter, 94 U. S. 734; nelabere vs. Norwood, 3 Swanst., 144, note. 
 
OF PARTIES. 15 
 
 If the necessary parties were not made, the defendant 
 could raise the question by demurrer to the bill, by plea, by 
 answer, or he might object at the hearing that the necessary 
 parties were wanting, or the Court of its own motion might re- 
 fuse to proceed, or the decree might be reversed on rehearing 
 or on appeal, or even if the objection were not made in any of 
 these ways, as the decree binds none but those who have had 
 their day in court, the successful party might afterwards find 
 that he had but an empty and fruitless decree. It should per- 
 haps be observed that objections of this character are viewed 
 with less and less favor as the case progresses (a). 
 
 The doctrines as to parties constitute one of the great dis- 
 tinctions between legal and equitable procedure. In general 
 courts of law require no more than that the persons directly 
 interested in the subject matter of a suit, and whose interests 
 are of a strictly legal nature be joined. All other persons 
 are not only unnecessary, but a misjoinder might be fatal to the 
 suit. All the plaintiffs must be entitled to judgment against 
 all the defendants; except in the one case of defendants in tort 
 actions. Joint parties must join and be joined on one side. 
 No others can be joined. But in equity the rule is far different. 
 Persons having joint interests may appear on different sides of 
 the case or even may not all be parties. Parties with diamet- 
 rically opposite interests may be defendants together with one 
 who has a joint interest with the plaintiff.. ' 
 
 For instance, in equity one of joint legatees might sue for 
 construction of a will and make his co-legatee, the executors, 
 the heirs-at-law, and the next of kin, all, parties defendant to 
 the bill. At law executor and heir (as such) could never be 
 joined, but in such a suit in equity these are all proper and, in 
 some cases, if establishment of the will is sought, necessary 
 parties to the suit. 
 
 Every necessary party who is not a plaintiff ought to be 
 made a defendant. No person should ever be joined as a 
 plaintiff who is not interested in the relief sought, as a want of 
 
 (a) Whiting vs. Bank of U, S., 13 Pet., 6, 14 ; Story, Eq. Plead , Sec. 337. 
 
16 OF PARTIES. 
 
 interest in one of joint plaintiffs is fatal to the suit (a). Ordi- 
 narily in cases of doubt you can make the questionable indi- 
 vidual a defendant, and there is ordinarily no objection to such 
 a course. An improper or unnecessary defendant can himself 
 object to his joinder, but his joinder is no ground of objection 
 in favor of the other defendants (d). 
 
 Parties having no common interest in the subject-matter 
 of controversy, but asserting several and distinct rights, cannot 
 unite and seek redress in a joint suit though their several 
 rights are against the same person, but parties whose interests 
 depend upon the same right, and who would be alike affected 
 by the judgment, may be joined, even though their titles and 
 in some respects their interests are not joint. Otherwise un- 
 connected parties may join in bringing a bill, where there is 
 one connected interest among them all centering in the point 
 in issue in the cause (c). 
 
 Who must be made defendants ? All necessary parties 
 who are not plaintiffs. And who are necessary parties? The 
 general rule we have already seen. We may give it some 
 further consideration, dividing the subject as follows , 
 
 I. Who are, in the absence of special circumstances, so 
 immediately interested in the subject matter of a suit as to be 
 proper and necessary parties? 
 
 We may point out certain classes of persons who may be 
 prop'erly omitted. 
 
 a.) Persons interested only consequentially in the mat- 
 ter (d). 
 
 d.) Persons between whom and the plaintiff there is no 
 privity (e). 
 
 c). Persons claiming under a title paramount to the con- 
 troversy (/). 
 
 d.) Mere agents and others having no interest in the 
 suit (g-). 
 
 (a) Story, Eq. Plead., Sees. 232, 509. ( b) Whitbeek vs. Edgar, 2 Barb. Ch 
 106; Goncelier vs. Foret, * Minn., 13; Lewis vs. Williams, 3 Minn., 131 • Story' 
 Bq. Plead., Sees. 232, 509, 544. (c) Hawes, Parties to Actions, Sec. 96 and cases 
 cited, (d). Dandridge vs. Curtis, 2 Pet., 377. (e) Utterson vs. Mair, 2 Ves. Jr. 
 95. (/) Eagle Ins, Co. vs. Lent, 6 Paige, 635; Banning vs. Bradford, 21 Minn 
 308. But see Wilson vs. Jamison, 36 Minn., 59. (o) Lyon vs. Tevis, 8 la 
 79. 
 
OF PARTIES. 17 
 
 But if fraud be charged and the agent participated therein 
 he may be joined («). 
 
 ^.) Mere witnesses. But in cases of defendant corporations 
 officers and even stockholders have been thought properly 
 joined where they had information which they ought to give in 
 the answer, since the corporation can make no disclosure 
 otherwise than through them {b). Somewhat similarly in some 
 cases an assignor in bankruptcy has been joined where his dis- 
 closure was needed. 
 
 Generally the holder of the legal title to the property in 
 controversy should be brought in. In cases of joint ownership, 
 obligations, or claims, all the joint parties should ordinarily 
 be brought in either as plaintiffs or defendants. 
 
 Sometimes by framing the bill so as to waive some claim 
 which lies against that person only, an inconvenient party will 
 cease to be necessary (c^. 
 
 A large number of authorities on proper parties in indi- 
 vidual cases are collected and carefully classified in Story's 
 Equity Pleading, sections 136 to 238, and to these I must r^fer 
 you for further discussion of this point. 
 
 2. Under certain circumstances parties ordinarily neces- 
 sary can be dispensed with. Hereunder we may state briefly 
 three cases all alike grounded on the impracticability of mak- 
 ing the persons parties. 
 
 a,) Where the necessary person has no existence and 
 this is shown in the bill. As for instance where a personal 
 representative of a deceased person is a necessary party and 
 the representation is in litigation (d). 
 
 b,) Where the necessary person is unknown to the plain- 
 tiff, and this appears by the bill, and the bill seeks a discovery 
 of him (e). 
 
 c,) Where the Court cannot get jurisdiction of the neces- 
 sary person, he being merely a passive object of the judgment 
 of the court and his rights merely incidental to those of the 
 parties before the court. 
 
 (a) Bowles vs. Stewart, 1 Sch. & Left-., 227 ; LeTexier ts. Anspach, 15 Ves., 
 164.- Marshall vs. Sladden, 7 Hare, 428; Attwood vs. Small, 6 Ch.and F., 352. 
 (61 ' French vs. First National Bank, 7 Ben. 488. (c) Story, Eq. Plead., Sec. 
 228. (d) Story, Eq. Plead., Sec.91. (e) Fenn vs. Craig, 3 Y. & Coll., 216, 224. 
 
18 OF PARTIES. 
 
 If such absent persons are to be active in the performance 
 or execution of the decree ; or if they have interests wholly 
 distinct from those of other parties, or if the decree ought tb be 
 pursued against them, then the court cannot properly proceed to 
 a determination of the whole cause without their being made 
 parties ; and under such circumstances, their being out of the 
 jurisdiction, constitutes no ground for proceeding to a decree 
 against them or their rights or interests ; but the suit as far as 
 they are concerned will be stayed. In many instances this ob- 
 jection will be fatal to the suit. In others it will not prevent 
 a decision of other questions between the parties actually be- 
 fore the court, even though such a decision may incidentally 
 touch on the rights of the absent parties, but such absent par- 
 ties will not be concluded by the decree (a). 
 
 Two important modifications of this old doctrine of equity 
 may be adverted to. The ancient maxim was that equity acted 
 in personam and not in rem. This rule was one of the outcomes 
 of the struggle between the chancellors and parliament. Under 
 that doctrine, unless the court of equity got actual personal 
 jurisdiction of the defendant it could not bind him at all (b). 
 But in the United States this doctrine has met with some quali- 
 fication and here equity sometimes proceeds quasi in rem. When 
 the property affected is in the possession or control of the court, 
 the absent defendant must be joined, and after notice in accord- 
 ance with the rules of court or provisions of statute the court 
 in many cases may and will proceed against the absent 
 defendant to the extent of the property in its custody (c). 
 On the other hand, in the United States Federal practice 
 jurisdiction of the case would frequently be ousted by joining 
 otherwise proper parties, on account of citizenship, and if a 
 decree can be made without such parties the court will dispense 
 with them {d). But if these parties are indispensable to any 
 
 (a) Shields vs. Barrow, 17 How. 130; Story, Eq. Pleading, Sees. 78 to 90 • 
 U.S. Equity Rule, No. 47; U.S. Rev. Stat. (1878), Sec. 737. (6) Smith vs. Hil 
 hernian Mine Co., 1 Sch. & Lefr., 240; Kirwan vs. Daniel, 7 Hare, 347. (c) 1 
 Pom. Eq.Jur., pages 118 and 119; Cassidy vs. Shimmin, 122 Mass.; 406; U. S 
 Rev. Stats. (1878), Sec. 738 ; Lydiard vs. Chute, 45 Minn., 277. (d) U. S. Equivt 
 Rule, No. 47; Harrison vs. Urann, 1 Story, 64; Drake vs. Goodrich, 6 Blatchf., 
 151. 
 
OF PARTIES. 19 
 
 decree, the court will not proceed, but will dismiss the bill (a). 
 
 3. In certain classes of cases the court, owing to the 
 impracticability of making all persons direct parties to the 
 suit, will deem the objects of the rule accomplished if such 
 persons are indirectly parties, in a manner to be briefly 
 described, and their interests suitably represented. 
 
 Reference is not had under this head to such cases as that 
 of executors, who are deemed to represent the estate so that 
 in suits against the estate tnere legatees are not properly joined; 
 such cases are not properly to be classed under this head, as 
 the legatee is not necessary, but comes under the head of 
 improper parties; here the person indirectly made a party, is 
 in some sort an actual party to the suit, and may, if he will, 
 actually appear and participate in the proceedings, as follows: 
 
 Where the parties are exceedingly numerous (in Small vs. 
 Atwood, there would have been over four hundred) and to join 
 them all would be impracticable owing to the difficulties of 
 obtaining jurisdiction, constant abatements by death of parties, 
 etc., etc., the court will not insist, in certain cases, on their all 
 being made actual parties, but will permit a few to be made 
 parties on behalf of themselves and all others in like position, 
 and will then give a decree which will bind all alike. This 
 class of cases is carefully limited. The fact of numerousness 
 must be made to appear on the face of the bill. It must also, 
 especially in case of defendants, in every case appear that 
 enough are made actual parties to fairly represent the rights of 
 the whole number [d). 
 
 The cases where this is permitted, the above-mentioned 
 circumstances existing, may be subdivided into three classes, 
 as follows: 
 
 a,) Where the question is one of one same common or 
 general interest and one or more sue or defend for the benefit of 
 the whole number having such interest. Hereunder we may 
 put the case of a few of the crew of a privateer bringing suit 
 on behalf of themselves and the rest of the crew against prize 
 
 (a) Conn vs. Penn., 5 Wheat., 424; Kibon vs. R. R. Co. 16 Wall., 446; Dor- 
 mitzer vs. Ills. & St. L. Bridge Co., 6 Fed. Rep., 217. (6) Adair vs. New River Co., 
 11 Yes., 445. 
 
20 OF PARTIES. 
 
 agents for an account and their proportion of the prize money. 
 If the bill is brought by a few of the crew on their own behalf 
 only, others being unpaid, the bill will be dismissed for lack of 
 such others, but if brought on behalf of themselves and of all the 
 rest of the crew who have not received their share this defect will be 
 cured (a). 
 
 Under this class come too the very common cases of 
 creditor's bills for marshalling and administration of assets of 
 a deceased or bankrupt debtor {b'). Similarly one legatee may 
 frequently sue on behalf of himself and all other legatees (<r). 
 
 If the exhibitor of the bill has not a common interest with 
 those whom he seeks to represent he cannot so proceed under 
 this class. Thus a mortgagee cannot sue on behalf of himself 
 and of all unsecured creditors without first surrendering his 
 security. Otherwise, the rights are not homogeneous, or for 
 objects equally beneficial to all; others might desire to contest . 
 the exhibitor's mortgage (a?). 
 
 b,) Members of a voluntary association, stockholders of a 
 corporation, members of a stock company, partners, when very 
 numerous may so sue and be sued {e~). If any stockholders or 
 members of the association have interests specially adverse to 
 those of the others, they ought of course to be made actual 
 parties (f). Sometimes, though rarely in cases of this sort, if relief 
 is prayed only against the actual defendants, it has been held 
 that the court will dispense with making all others parties (^). 
 
 «:,) The third class of these cases is the most peculiar; 
 here as before, the parties must be very numerous, so that it is 
 impracticable to bring them all before the court, and yet they 
 have several and distinct interests, but there exists a common 
 right which the bill seeks to establish and enforce, or a general 
 claim or privilege, which it seeks to establish, to narrow, or to 
 take away, and the court has before it enough actual p'arties 
 
 (a) Leigh vs. Thomas, 2 Ves. Sr., 312 ; West ts. Kandall, 2 Mason, 193 : 
 Good vs. Blewitt, 19 Ves., 336. (6) Hallett vs. Hallett, 2 Paige, 18 ; Pritchard 
 vs. Hicks, 1 Paige, 270. (c) Manning vs. Thesiger, 1 Sim. & Stu., 106. (d) 
 Burney vs, Morgan, 1 Sim. and Stu., 358, 362; Newton vs. Egmont, 5 Sim., 
 37. (e) Small vs. Atvyood, Yonnge, 407; Meux vs. Maltby, 2 Svyanst., 284- 
 Clements vs. Bowes, 16 Jur., 96; Wood vs. Dummer, 3 Mason, 315, 319:Hichens 
 vs. Congreve, 4 Rnss., 562, 576; Crease vs. Babcock, 10 Met., 532. (/) Richard- 
 son vs. Hastings, 7 Beav., 323 ; Clinch vs. Financial Co., L. R., 4 Ch., 117, 122 
 (S) Anon., 2 Bq. Abr., 166 pi. 7. 
 
OF PARTIES. 21 
 
 honestly, fairly, and fully to ascertain and try the general right. 
 As an example of this class of cases, we may take the early 
 case of York vs. Pilkington. In that case the bill was brought 
 to quiet the plaintiffs' right of fishery in the River Ouse, of 
 which plaintiffs claimed the sole fishery. The actual defend- 
 ants were owners in severalty of different tracts bordering on 
 the river, between whom there was no privity. The bill was 
 sustained (a). Hereunder, too, come cases by tax-payers on 
 behalf of themselves and all others subject to a tax to restrain 
 its assessment or collection (d). 
 
 A full discussion of this branch of the subject of parties in 
 equity is found in Story's Equity Pleadings, Sees. J J to 136.* 
 
 In concluding this discussion of parties in equity, it may 
 be added that the fullest liberty of amendment by adding pro- 
 per parties who have been omitted, is ordinarily allowed at all 
 stages of the proceeding (c). 
 
 And even if the bill should be dismissed for defect of par- 
 ties, it will be without prejudice to another bill (d). 
 
 (a) Mayor of York vs. Pilkington, 1 Atk., 282; Weale vs. Waterworks Co., 1 
 Jac. & Walk., 369. (6) 1 Pom. Bq. Jur., p. 278, note 1, and cases there cited, (c) 
 Story, Bq. Plead., Sees. 237, 541, and 884; U.S. Equity Rules, Nos. 28, 29, 52, and 
 53. (d) House vs. Mullen, 22 Wall., 42. 
 
 *NOTE. The doctrines concerning parties inconveniently numerous, set out on 
 pages 19, 20, and 21, are somewhat modified in the United States practice by the 
 provisions of the U. S. Equity Rule, No. 48, to which attention is directed. The 
 rule will be found Riven in full on page 90, infra. 
 
LECTURE II. 
 OF BILLS IN EQUITY. 
 
 The general course of procedure in equity is as follows: 
 the bill, by the plaintiff; the answer, by the defendant; the 
 replication, by the plaintiff; trial of the issues, findings by 
 the court, and decree; besides these steps, there are, of course, 
 numerous collateral and incidental steps in the proceeding, to 
 which we shall be able to give some attention later. In this 
 lecture we shall devote ourselves to the first step in a proceed- 
 ing in equity — the bill — the plaintiff's application to the chan- 
 cellor for relief. 
 
 Bills in equity are divisible into two great classes, I, Orig- 
 inal Bills, which relate to some matter not previously litigated 
 in the same court, by the same persons, standing in the same 
 interests; II, Bills Not Original, which relate to some mat- 
 ter already litigated in the same court, by the same persons, 
 standing in the same interest. 
 
 I. Original bills are in turn divided into two sub-classes: 
 a,) Bills praying relief; and i5,) Bills not praying relief. In a 
 broad and general sense, all bills pray relief, since they seek 
 the aid of equity, but this nomenclature has been adopted as 
 describing, under the head of bills praying relief, such as seek 
 in that very suit a decision upon the merits of some matter of 
 controversy, and the award of a decree ascertaining and pro- 
 tecting present rights, or giving redress for present wrongs; 
 while, under the head of bills not praying relief, are not inaptly 
 described certain kinds of bills which merely ask the aid of the 
 court in obtaining evidence for use in other suits, either in the 
 same or in other courts. 
 a.) Original bills praying relief are of three kinds: 
 
 (i.) Bills praying the decree or order of the court touch 
 ing some right claimed by the party exhibiting the bill in op- 
 position to some right, real or supposed, claimed by the party 
 
OF BILLS IN EQUITY. 23 
 
 against whom the bill is exhibited, or touching some supposed 
 wrong done in violation of the plaintiff's right. This is the 
 ordinary bill in equity by which a proceeding is instituted. It 
 is sometimes spoken of as an English bill. 
 
 (2.) Bills of Interpleader, where the person exhibiting 
 the bill claims no right in opposition to the rights claimed by 
 the persons against whom the bill is exhibited, but prays the 
 decree of the court touching the rights of those persons for the 
 safety of the person exhibiting the bill. A bill of this kind is 
 ordinarily exhibited where two or more persons claim the 
 same debt, duty, or thing from the plaintiff, and he not know- 
 ing to which he ought rightly to render the same, and fearing 
 injury if he decide wrongly, prays that they be called on to 
 state their adverse claims so that the court may adjudge to 
 whom the debt, duty, or other thing belongs. The plaintiff 
 must state his own rights and negative any interest in the 
 thing in controversy; and must also state the several claims of 
 the defendants so that it will appear that each has a claim of 
 right. He must moreover append an affidavit that he is not in 
 collusion with either party. The plaintiff, if there is any 
 money due must bring it into court, or at least offer to do so 
 in the bill. 
 
 Sometimes where the plaintiff is also entitled to some 
 further relief himself, he may bring a bill in the nature of a 
 bill of interpleader (a). 
 
 (3.) Bills of Certiorari, which pray a writ of certiorari in 
 order to remove a cause from an inferior court of equity for the 
 purpose of having it further proceeded in and decided in the 
 superior court of equity in which this bill is filed, and to which 
 the process is returnable. They are rarely if ever used in this 
 country. 
 
 6. ) Original bills not praying relief are of two kinds. 
 
 (i.) Bills to Perpetuate Testimony and bills to examine 
 witnesses de bene esse, for use in actions or suits in any court. 
 
 Such a bill must show the subject-matter and right 
 touching which, plaintiff is desirous of giving evidence. It 
 must show that he has an interest therein which may be endan- 
 
 (a). story, Eq. Plead., Sees. 291-297 b. 
 
24 OF BILLS IN EQUITY. 
 
 gered. It must also show what facts the witnesses can testify 
 to. It must further show that defendant has an interest to 
 contest plaintiff's title. It must also show necessity for per- 
 petuating the evidence. 
 
 It must pray that the witnesses be examined to the end 
 that their testimony be perpetuated. It must not pray that 
 defendant abide the order and decree, or it may be dismissed 
 as being a bill for relief which states no case for relief. Bills 
 to perpetuate testimony are used where no present action can 
 be brought at law; bills to take testimony de bene esse, are sus- 
 tainable only in aid of suits already pending; otherwise they 
 are substantially the same {a). 
 
 (2.) Bills of Discovery, technically so-called, that is bills 
 simply for the discovery of facts resting in the knowledge of 
 the party against whom they are exhibited, orof deeds, writings, 
 or other things in his custody or power, for use in some action 
 either pending, or to be brought to which the defendant is or is 
 to be a party. As in the preceding class, the bill must show 
 the facts constituting the plaintiff's right to discovery, and 
 must not pray relief {b'). 
 
 These bills of discovery are an outgrowth of the eviden- 
 tiary nature of the answer in equity, and were the ordinary 
 means of obtaining the testimony of your opponent for use in 
 an action at law where, under the old law, he was not 
 permitted to testify. Bills of discovery, to perpetuate tes- 
 timony, and to take testimony de bene esse are, in this 
 country, substantially obsolete, their places having been 
 taken by statutory remedies of a more simple character (t). 
 
 II. Bills not original are of two classes, 
 rt.) Bills in addition to or in continuance of an original bill, 
 these are of three kinds. 
 
 (i.) Supplemental Bills, which are merely in addition to 
 the original bill, setting up facts which have arisen since the 
 filing of the original bill, and are substantially like pleas puis 
 darreign continuance at law. Matters occurring before' the filing 
 
 (a), story, Eq. Plead , Sees. 300-310; (6). Story, Eq. Plead., Sees. 311-325; 
 (c). Cf. Gen. Stat. 1878 (Minn.), Cap 73, Sees, 6-14 and 36-52. 
 
OF BILLS IN EQUITY. 25 
 
 of the bill but discovered later are properly to be shown by- 
 amended and not by supplemental bill. But sometimes 
 where the matters are discovered too late to be incorporated 
 by amendment, they may be set up by supplemental bill (a). 
 
 (2.) Bills of Revivor, which are continuances of original 
 bills bringing some new party before the court when by death, 
 or otherwise, the original party has become incapable of 
 prosecuting or defending the suit, and the latter is, as it is 
 termed in equity, abated thereby. An abatement, in the sense 
 of the common law, is an entire overthrow of the suit. But in 
 equity, abatement signifies only a present suspension of all pro- 
 ceedings. At law, an action when abated is absolutely dead. 
 In equity, a suit when abated is merely in a state of suspended 
 animation and may be revived. A bill of revivor is the method 
 of reinstatement of the suit (d). 
 
 (3.) Combinations of the preceding two, called bills of 
 Supplement and Revivor (c). 
 
 (4.) Bills in the nature of any of these (d). 
 b.) Bills for the purposes of cross-litigation, or of con- 
 troverting, or suspending, or reversing, some decree or order 
 of the court or carrying it into execution. Hereunder are the 
 following kinds: 
 
 (i.) Cross-bills, by a defendant in the original suit 
 asking aid against the plaintiff or another defendant in the 
 suit, touching some matter of litigation mentioned in the orig- 
 inal bill. These are either for discovery in aid of the defend- 
 ant, or for relief, so that all parties may obtain the relief to 
 which they are entitled [e). We shall see somewhat more of 
 these in speaking of the defense to a suit. 
 
 (2.) Bills of Review, brought to examine and reverse a 
 former decree of the court, which has been enrolled and thereby 
 become a record. A bill of review lies in the same court, first, 
 for error of law apparent on the face of the pleadings and 
 decree; secondly, a bill of review may be brought on the dis- 
 covery of new matter in cases substantially similar to those 
 
 (a), story, Bq. Plead., Sees. 332-344. (6). Story, Eq. Plead., Sees. 354-376. 
 fc1. Story, Eq. Plead., See. 387. (d). Story, Eq. Plead., Sees. 345-353, 377-386. 
 (e). Story, Eq. Plead., Sees. 389-402. 
 
26 OF BILLS IN EQUITY, 
 
 where at common law a motion for a new trial would lie on this 
 ground. 
 
 Except for appeals, a bill of review, or a bill in the nature 
 thereof, is the only way of re-examining a decree in equity {a). 
 
 (3.) Bills to impeach decrees on the ground of fraud. 
 This sort of bill is sometimes called an original bill in the 
 nature of a bill of review. In equity, a decree obtained by 
 fraud will be completely annulled. This kind of bill is the 
 instrument therefor, as the relief will not be granted on peti- 
 tion {b). 
 
 (4. ) Bills to suspend the operation of decrees in special 
 circumstances, or to avoid them on the ground of matter which 
 has arisen subsequently to the decree. Bills of this kind are 
 very rare {c). 
 
 (5.) Bills to carry former decrees into execution. Some- 
 times, owing commonly to delay in the enforcement of the 
 decree, subsequent events call for an additional direction of 
 the court. Application should then be made therefor by a 
 bill of this class {d). 
 
 (6.) Bills in the nature of one or more of the preceding. 
 
 All of these numerous classes of bills are outgrowths of 
 the ordinary original bill praying relief, of the first class, and 
 are constructed on similar principles so far as the same are 
 applicable to the peculiar circumstances of the case. Some of 
 them, as for instance bills of discovery and bills to perpetuate 
 testimony, are either actually obsolete or practically superseded, 
 under American practice, their places having been taken by 
 other and simpler remedies. 
 
 Turning now to the ordinary original bill praying relief: 
 
 In order to enable the court to understand the case and to 
 administer the proper remedial justice, as well as to apprise 
 the opposite party of the nature of the claim, and of the redress 
 sought, and to enable him to make the proper defense thereto, 
 the bill should contain a clear, exact, and unambiguous state- 
 ment of all the material facts. It should therefore show, with 
 
 {a), story, Eq. Plead., Sees. 403-4.25. (b). Story, Eq. Plead., Sees. 426-4,28. 
 (c). Story, Eq. Plead., Sec. 428, a. (d). Story, Eq. Plead., Sees. 429-431. 
 
OF BILLS IN EQUITY. 27 
 
 reasonable certainty, the right of the plaintiff, the manner in 
 which he is injured, the person by whom the injury is commit- 
 ted, the material circumstances of time, place, and manner, and 
 other incidents, and the particulars of the assistance he wants 
 from the court, or in other words, the relief he asks. It must 
 of course appear, too, that the case is one proper to be consid- 
 ered by a court of equity. To all the statements of fact made 
 in the bill, the rules we have considered under Common Law 
 Pleading apply with substantially like force as at law, though 
 the more lenient doctrine obtained in equity that certainty to a 
 common intent was sufficient; but in modern times this doctrine 
 has been adopted also at law, and both are now governed by 
 substantially the same rules. 
 
 Early bills were simple affairs, but in the hands of great 
 equity pleaders the bill developed into a complicated and for- 
 midable instrument of many subdivisions and subserving many 
 purposes. In particular, attention was given to forcing the 
 defendant to detail his defense, and to extracting from him 
 admissions of important matters. 
 
 It is but a very small part of equity pleading to draw a bill 
 which states a cause of action; the thing in a bill in equity 
 which shows mastery of the subject is the ability with which 
 the pleader brings into prominence all the strong points in his 
 client's case; keeps in the background all its weak points, and 
 at the same time forces from the defendant by the interroga- 
 tories and the general frame of the bill all possible admissions 
 in favor of the plaintiff; and wrests from the defendant by the 
 clearness and adroitness of the bill his opportunities of raising 
 issues; and withal pleads in so clear, orderly, and simple a 
 manner, that the whole question may be grasped readily by 
 the chancellor at a single reading of the bill. 
 
 If one has a cause for relief nothing either in law or 
 equity so aids it as a clear, orderly, and simple presentation of 
 it. If no other reason existed for following accustomed forms 
 it would be reason enough that they are more familiar to the 
 chancellor and consequently more readily understood by him. 
 
 The bill as developed by the English equity pleaders con- 
 
38 OF BILLS IN EQUITY. 
 
 sisted of nine parts; all of these may be used in our United 
 States courts, though several of them are, as we shall see, 
 ordinarily omitted. These nine parts are as follows: 
 
 I.) The Direction, or address of, the bill. This, of 
 course, contains the appropriate and technical description of 
 the court. 
 
 2.) The Introduction. This part contains the names and 
 descriptions of the persons exhibiting the bill, called in the 
 bill "your orators" and "oratrixes," according to their sex, and 
 also the names of th^ defendants. Moreover, besides the 
 names of the several parties there are given also their places 
 of abode, their titles of dignity or office, the character in which 
 they sue or are sued, whether they sue in autre droit, and such 
 other description as is necessary and proper. 
 
 In all cases in the Federal courts where the jurisdiction is 
 founded on the citizenship of the parties (the ordinary case) 
 the citizenship of each party must clearly appear, as by stating 
 in this portion of the bill that the plaintiff is a citizen of the 
 state of New York and defendant a citizen of the state of 
 Minnesota («). 
 
 In the United States Federal practice these first two parts 
 are by rule of court amalgamated into one and termed the 
 introductory part, and its form is, in substance, as follows: 
 
 "To the Judges of the Circuit Court of the United States 
 
 " for the District of : A. B., of and a citizen of the 
 
 " State of , brings this his bill against C. D. of and a 
 
 " citizen of the State of , and E. F. of and a citizen 
 
 " of the State of ; and thereupon your orator complains 
 
 " and says:" etc. {b^. 
 
 3.) The Premises, or stating part of the bill. Here are 
 to be set out all of the facts on which the plaintiff grounds his 
 right to relief. In rare cases averments in other parts of the 
 bill will help out defective averments in the premises, but ordi- 
 narily and properly the bill stands or falls by its stating part, 
 and evidence cannot be given of any facts not set up in this 
 part (c). 
 
 (a). Jackson vs. Ashton, 8 Peters, 148; Bingham vs. Cabot, 3 Ball., 382 
 (6). U. S. Equity Rule, No. 20. (c). Flint vs. Field, 2 Anst.,543; Clarke vs. Tur- 
 ton, 11 Ves., 240 ; Houghton vs. Reynolds, 2 Hare, 264, 266, and note of Reporter. 
 
OF BILLS IN EQUITY. 29 
 
 It is to this part in particular, especially fulfilling as it 
 does the part of a pleading at law, that the rules of statement 
 which we have studied in connection with common law pleading 
 apply. In regard to the statements in the bill we find such 
 familiar doctrines laid down as the following: "Equity pleadings, 
 " like those at law, are taken most strongly against the pleader; 
 " and where the bill contains general and specific allegations as 
 " to the same matter, the general allegations will be referred 
 " to the particular and specific ones" (a). 
 
 4.) The Common Confederacy Clause. This is a formal 
 clause charging the defendants generally with conspiring 
 together and with other persons unknown to the plaintiff (who, 
 it is prayed, when discovered, may be made defendants) to 
 defraud the plaintiff. It seems to have been inserted in ancient 
 times owing to an idea that it was a means of making sure of 
 having a ground for the exercise of equitable jurisdiction, and 
 with the further view of having a ready means or pretext for 
 amending by the joinder of additional defendants, subsequently 
 found necessary. In either aspect it is entirely unnecessary, 
 and in fact mere surplusage {d). 
 
 5.) The Charging Part. It has already been called to 
 your attention that all confession and avoidance of the de- 
 fenses set up in the answer is done in the bill and not by sub- 
 sequent pleadings. In order to meet the defenses, which 
 plaintiff expects the defendant may set up, it is of course nec- 
 essary that the plaintiff should in some way intimate the na- 
 ture of the expected defense, he accordingly here states that, 
 as he supposes, defendant wi!l attempt to set up such and such 
 justification or discharge, and then charges other matters in 
 avoidance or disproof of the supposed defense. The charging 
 part is useful, at times, in three ways, viz., by enabling the plain- 
 tiff in the original draft of his bill to confess and avoid supposed 
 defenses, so that, mayhap, the defendant will not seek to raise 
 them; by giving plaintiff a foundation (necessary as we shall 
 see) on which to base interrogatories to the defendant; and, 
 
 (a). Ellis vs. Colman, 25 Beav., 662; Finney vs. Pridley. 9 Minn., 34; Bank 
 vs. Boom Co., 41 id., 141. (6). Story, Eq. Plead., Sees. 29, 30; U. S. Equity 
 Rule, No. 21. 
 
30 OF BILLS IN EQUITY. 
 
 thirdly, by enabling plaintiff to state his case over again, with 
 some amplification of detail, and so get the whole matter still 
 more clearly before the court. The facts avoiding or disprov- 
 ing the supposed defenses should properly all be stated posi- 
 tively in the stating part of the bill, though there are decisions 
 holding that if such facts are stated in detail in the charging 
 part it will suffice. But a mere general charge that the con- 
 trary of these pretenses is the truth will not suffice {a). 
 
 The charging part of the bill was often omitted in the En- 
 glish equity practice and is commonly so in the United States 
 practice {b). 
 
 In the United States practice the charging part may be, 
 and perhaps commonly is, when used, incorporated into, and 
 made a mere allegation in the premises of the bill {c), 
 
 Let me add that the charging part of the bill is a danger- 
 ous weapon, liable in unskillful hands to do far more harm 
 than good. 
 
 6.) The Jurisdiction Clause. This is merely a formal 
 averment that the acts of the defendant are contrary to good 
 conscience and to equity and that the plaintiff is remediless at 
 the common law. The clause is superfluous and utterly use- 
 less. It will not of itself confer jurisdiction. If the bill ap- 
 pears otherwise to be of equitable cognizance the bill will be 
 sustained though the clause be omitted. On the other hand if 
 there does not otherwise appear to be a case for equitable in- 
 terference the court will dismiss the bill despite the jurisdic- 
 tion clause. In the United States practice the clause is fully 
 as well omitted {d). 
 
 7.) The Interrogatory Part. This part of the bill was 
 originally a mere prayer that the parties complained of might 
 answer all the matters contained in the former parts of the 
 bill, not only according to their knowledge of the facts stated, 
 but also according to their remembrance, to the information 
 they have received, and the belief they are able to form on the 
 subject. 
 
 (a). Houghton-ys. Reynolds, 2Hare, 264; Att'y Gen. vs. Whorwood, 1 Ves. Sr., 
 534; Story, Eq. Plead., Sees. 31-33. (6). U. S. Equity Rule, No. 21. (c). U. S. 
 Equity Rule, No. 21. (d). U. S. Equity Rule, No. 21 ; Story, Eq. Plead., Sec. 34. 
 
OF BILLS IN EQUITY. 31 
 
 One of the principal ends of the answer in equity is to 
 supply the plaintiff with proof of the matter necessary to sup- 
 port his case. This, remember, is the only way that the testi- 
 mony of either party could be had in any case on the facts in 
 issue. The answer, in response to the interrogatory part be- 
 came evidence in the cause, as well as pleading; evidence, too, 
 both for and against the plaintiff. The answer was, of course, 
 under oath. Under this general interrogatory defendant 
 ought to answer fully and explicitly. But it was very soon ap- 
 parent that the substance of the matter might be avoided with 
 comparative ease by answering the bill according to the letter 
 only. The remedy was speedily found in the addition to this 
 part of the bill of special interrogatories as to each fact, as 
 to which disclosure was specially desired, and each several 
 circumstance attendant thereon; and this method soon became 
 the common practice. Hence this part gets its name, as 
 thereby the plaintiff questions the defendant as to the truth 
 of the several statements and charges in the bill. 
 
 The extent of the interrogation originally was as to the 
 statements contained in the former parts of the bill, and as the 
 old interrogating clause grew up into the complicated interroga- 
 tory part this limitation clung to it. All interrogatories must 
 be founded on the prior allegations of the bill. Therefor, if 
 there is nothing in the prior parts of the bill to warrant a par- 
 ticular interrogatory, the defendant need not answer it. Con- 
 sequently when a question arises on the sufficiency of the 
 answer to an interrogatory, we are to examine and see if the 
 allegations of the bill justify the interrogatory. If however the 
 defendant do an.swer an unjustifiable interrogatory, and it be 
 replied to, the informality is cured {a). Of course, a numberof 
 interrogatories may be founded on a single allegation, and 
 these may go more fully into detail than did the allegation. 
 
 Special interrogatories are not a necessary part of the bill. 
 Early bills frequently contain no interrogatories. But special 
 interrogatories often are a useful means of eliciting evidence 
 from the defendant, if he is reluctant. 
 
 (a). Att'y Gen. vs. Whorwood, 1 Ves. Sr., 538. 
 
32 OF BILLS IN EQUITY. 
 
 Important changes have been made in the United States 
 practice in this part of the bill. By the rules the interrogatory 
 part is introduced by the following form of words: 
 
 "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 and respective 
 '' corporal oaths, and according to the best and utmost of their 
 " several and respective knowledge, remembrance, informa- 
 " tion, 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 respec- 
 " tively required to answer; that is to say, 
 
 " I. Whether, etc." {a). 
 
 Here follow the interrogatories divided as conveniently as 
 maybefrom each other, and numbered consecutively 1,2,3, etc.; 
 and the interrogatories which each defendant is required to 
 answer are specified in a note at the foot of the bill that "The 
 " defendant (A. B.) is required to answer the interrogatories 
 " numbered respectively i, 2, 3, etc." 
 
 Further, "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 evidence in his favor, unless the cause be set down 
 " for hearing on bill and answer only." {b). 
 
 "The note at the foot of the bill, specifying the interroga- 
 " tories which each defendant is required to answer, shall be 
 " considered and treated as part of the bill" (c). 
 
 It is not necessary to interrogate a defendant specially 
 upon any statement in the bill unless the complainant desires to 
 do so, to obtain a discovery {d). 
 
 In the old chancery practice the interrogatory part was a 
 fairly dangerous weapon to the interrogator. But under the 
 foregoing rules, one must be even more careful than before. 
 
 ' (a). U. S. Equity Rule, No. 43. (6). U. S. Equity Rule, No. 41, as amended in 
 1872, 13 Wall., XI. (c). U. S. Equity Rule, No. 42. (d). U. S. Equity Rule, of 
 December Term, 1850 ; 10 How. IV., repealing Rule No. 40. 
 
OF BILLS IN EQUITY. 33 
 
 As long as the answer was evidence anyway one risked com- 
 paratively little in interrogating specially; but now that the 
 answer is not ordinarily evidence for the defendant, but the 
 answers to special interrogatories are evidence of more than 
 ordinary weight, as we shall see later (a), it is at considerable 
 risk that one interrogates a defendant specially. It should 
 never be done where one has other means of proof at command. 
 
 8.) The Prayer For Relief. " 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" (d). The prayer is special, for the relief to which the 
 orator thinks himself entitled, as for instance, reformation 
 of a contract, or foreclosure of a mortgage, and after that 
 general, for such other and further relief in the premises as 
 shall be just and agreeable to equity. The use of the general 
 prayer is, that, if the plaintiff has, in his special prayer, 
 mistaken the relief to which he is entitled, the Court may yet 
 grant him the relief which his case warrants; or it may be re- 
 sorted to, to extend and make more effectual the specific relief 
 sought. The general prayer can never be safely or properly 
 omitted. Unless the plaintiff needs an injunction or a writ of 
 ne exeat, pending the suit, the general prayer will ordinarily 
 suffice to procure him such decree as his case requires, 
 provided the relief asked at bar is authorized by the facts 
 pleaded and proven, even though in the special prayer the 
 plaintiff have mistaken his remedy (r). 
 
 In some cases the plaintiff cannot feel at all sure what view 
 the Court will take as to the proper relief upon the facts. He 
 should then be careful to frame his bill, with a double aspect, 
 as it is termed. This rule for framing a bill with a double as- 
 pect does not go so far as to permit the pleader to allege two 
 inconsistent states of facts and ask relief in the alternative; 
 but he may state the facts and ask alternative relief according to 
 the conclusion of law which the Court may draw from them (d). 
 
 (a). Lecture IV, infra; see also Story, Eq. Plead., Sec. 849 a. (6). U. S. Equi- 
 ty Rnle, No. 21. (c). Texas vs. Hardenbercrh, 10 Wall., 68 ; Hayward ts. Nation- 
 al Bank, 96 U. S., 611; Tayloe vs. Insurance Co., 9 How., 390. (d). Rawlings 
 vs. Lambert, 1 Johns. & H., 458 ; Marsh vs. Keith, 1 Dr. & Sm., 343 ; Redmond 
 vs. Dana, 3 Bosw. (N. Y.), 615 ; Davies vs. Otty, 2 DeG. J. & S., 238 ; Colton vs. 
 Ross, 2 Paige, 396 ; Lloyd vs. Brevirster, 4 Paige, 537. 
 
34 OF BILLS IN EQUITY. 
 
 The prayer for relief in a bill in equity demands attention 
 and care. 
 
 9.) The Prayer For Process. By this part of the bill 
 the orator prays for the process of the Court to compel the 
 defendant to appear, answer, and abide the decision of the 
 Court. The names of all persons who are intended to be made 
 parties must be inserted here; for it is a general rule that none 
 are parties to a bill in equity against whom process is not 
 prayed, even though named in the introduction (a). 
 
 In the United States practice, " If any person other than 
 " those named as defendants in the bill, shall appear to be neces- 
 " sary or proper parties thereto, the bill shall aver the reason why 
 " they are not made parties, by showing them to be without 
 " the jurisdiction of the court, or that they cannot be joined 
 " without ousting the jurisdiction of the court as to the other 
 " parties. And as to persons who are without the jurisdiction, 
 " and may properly be made parties, the bill may pray that 
 ■' process may issue to make them parties to the bill if they 
 " should come within the jurisdiction" (i>). The averment 
 should be in the third part of the bill and this prayer in this 
 ninth part. The United States Equity Rules further provide: 
 " The prayer for process of subpoena in the bill shall contain 
 " the names of all the defendants named in the introductory 
 " part of the bill, and if any of them are known to be infants 
 " under age or otherwise under guardianship, shall state the 
 " fact" (c). " If an injunction, 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 sufificient, without repeating 
 " the same in the prayer for process" {d). This last clause of 
 the rule alters the old English practice. 
 
 Every bill must, in conclusion, be signed by counsel. The 
 counsel by his signature makes himself responsible for the con- 
 tents of the bill; and this responsibility is insisted on by the 
 courts (^). 
 
 (o). story, Eq. Plead., Sec. 44. (6). U. S. Equity Eiiie, No. 22. (c). U. S 
 Equity Rule, No. 23. (d). Id. (e). Carey vs. Hatch. 2 Edw. Ch., 190 ; Partridge 
 vs. Jackson, 2 Edw. Ch., 520 ; Beames Ord. in Ch., 25, 69, 70, 165-167 ; Dwight 
 vs. Humphrey, 3 McLean, 104; Stinson vs. Hildrup, 8 Biss., 376: Roach vs. Hul- 
 ings, 5 Cranch, C. C, 637. 
 
OF BILLS IN EQUITY. 35 
 
 By the United States rule "every bill shall contain the sig- 
 " nature of counsel annexed to it, which shall be considered as 
 " an affirmation on his part that upon the instructions given to 
 " him and the case laid before him, there is good ground for 
 " the suit, in the manner in which it is framed" (a). 
 
 The bill, in the United States practice is then reduced to 
 four necessary parts, as follows: the introductory part, the 
 stating part, the prayer for relief, and the prayer for process. 
 Beside these the interrogatory part is frequently useful, as is 
 also the charging part (which last may however be incorporated 
 into the premises). The other parts are ordinarily omitted. 
 
 We have already seen that the general rules of statement 
 which obtain at common law apply also in equity. The allega- 
 tions must be certain and unambiguous; the papers must not be 
 unnecessarily prolix. But owing to the nature of procedure in 
 equity surrounding circumstances, collateral facts and eviden- 
 tiary matters are frequently pleadable, as laying foundation for 
 interrogation of the defendant, or for ascertaining the measure 
 or kind of relief to which plaintiff may be entitled, or as affec- 
 ting generally the equities of the cause, or even the question of 
 costs. 
 
 And where any statement in the bill may, if admitted by 
 defendant, so affect the decision, it is relevant, material, and 
 proper in the bill (d). But care must be taken not to overload 
 the bill by superfluous allegations, or redundant or unnecessary 
 statements, or by impertinent or scandalous matter. Imperti 
 nent matter is matter which cannot affect the decision of the 
 case, which is not relevant thereto. Pertinent matter can never 
 be scandalous, but impertinent matter may be. Scandalous 
 matter is impertinent matter (whether true or not) bearing 
 cruelly on the moral character of individuals. And while mere 
 impertinent matter concerns only parties to the suit, scandalous 
 matter may be stricken out of the bill, even, by leave of court, 
 upon the application of a stranger to the suit (c). 
 
 The remedy of a party for impertinent matter is, as we 
 
 (a). U. S. Equity Rule, No, 24. (6). Hawley vs. Wolverton, 5 Paige, 523; 
 Mechanics Bank vs; Levy, 3 Paige, 606. (c). Coffin vs. Cooper, 6 Ves., 514; Wil- 
 liams vs. Douglas, 5 Beav., 82; Ex parte Simpson, 15 Ves., 477. 
 
36 OF BILLS IN EQUITY. 
 
 shall see, by exceptions; for scandal the stranger has the 
 remedy of petition. It may be noted that counsel and plaintiff 
 are both held responsible for scandal in the bill. 
 
 "Every bill shall be expressed in as brief and succinct terms 
 " as it reasonably can be, and shall contain no unnecessary re- 
 " citals of deeds, documents, contracts, or other instruments, in 
 " haec verba, or any other impertinent matter, or any scandalous 
 " matter not relevant to the suit. If it does, it may on excep- 
 " tions 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" 
 
 Again, a bill must not be multifarious. Multifariousness is 
 the improper joinder of distinct and independent matters in 
 one bill, either against all the defendant.« or against some of 
 them. To support the objection of multifariousness, because 
 the bill contains different causes of suit two things must 
 concur : first, the different grounds of suit must be wholly 
 distinct ; secondly, each ground must be sufficient, as stated, 
 to sustain a bill. If the grounds be not entirely distinct 
 and unconnected, if they arise out of one and the same 
 transaction, or series of transactions, forming one course 
 of dealing, and all tending to one end ; if one connected 
 story can be told of the whole, the objection does not 
 apply. It is not indispensable that all the matters in the suit 
 Tjhould affect all the parties ; it will suffice as against this ob- 
 jection if each has an interest in some matters in the suit, and 
 such matters are connected with the others. If two plaintiffs 
 should in one bill bring a joint demand and a separate several 
 demand of one of them the bill would certainly be mul- 
 tifarious {b^. But this objection of multifariousness must 
 be taken by demurrer or it will be waived {c). Some cases 
 
 (o). U. S. Equity Rule. No. 26. As to the manner of taking and enforcins ex- 
 ceptions see U. S. Equity Rule, No. 27. (6). Harrison vs. Hogg, 2 Yes.. Jr., 32.^ 
 328; Boyd vs. Hoyt, 5 Paige 65, (c). Eissell vs. Beckvs'ith, 33 Conn., 357. 
 
OF BILLS IN EQUITY. 37 
 
 illustrating this fault will be found in the notes (a). An ex- 
 tended discussion of the subject of multifariousness and of 
 conflicting cases thereunder will be found in Story's Equity 
 Pleading, Sees. 271 to 286 5. 
 
 A bill may however be defective for the opposite fault 
 to that of multifariousness, that is for an undue splitting up of 
 a single cause of suit and so multiplying litigation. This fault 
 is termed multiplicity. For example, one may not exhibit a 
 bill for part of an account, but must dispose of the whole in 
 one suit (d). 
 
 In all bills it must clearly appear from the premises that 
 plaintiff has a right to assistance, and that the case is one 
 proper for the exercise of equity powers. 
 
 The bill when framed may, if deemed desirable, be verified 
 by the orator, though this is not necessary. 
 
 The bill when thus framed and signed by counsel is filed 
 with the clerk of court, and the suit is thereby instituted. 
 
 It frequently happens that the plaintiff finds his bill de- 
 fective ; very liberal are the provisions for amendment. In 
 the early stages of the proceeding the rule in the United States 
 practice is as follows : "The plaintiff shall be at liberty, as a 
 " matter of course, and without payment of costs, to amend his 
 " bill in any matter whatsoever, before any copy has been 
 " taken out of the clerk's office, and in any small matters 
 " afterwards, such as filling blanks, correcting errors of dates, 
 " misnomer of parties, misdescription of premises, clerical 
 " errors, and generally in matters of form. But if he amend 
 "in a material point (as he may do, of course) after a copy 
 " has been so taken, before any answer, or plea, or demurrer to 
 " the bill, he shall pay to the defendant the costs occasioned 
 " thereby, and shall, without delay, furnish him a fair copy 
 " thereof free of expense, with suitable reference to the places 
 " where the same are to be inserted. And if the amendments 
 " are numerous, he shall furnish in like manner, to the defend- 
 
 (a). Bedsolevs. Monroe, 5 Ired. Eq., 313; McCabe vs. Bellows, lAllen,269; 
 Kennebec R. R. vs. Portland R. R., 54 Me., 173; Pope vs. Oil. Co., 115 Mass., 286; 
 Winsor vs. Bailey, 55 N. H., 218 ; Lewis vs. Iron Works, 50 Vt., 477 ; Brewer vs. 
 Boston Theatre, 104 Mass., 378 ; Coates vs. Legard, L. R. 19 Eq., 56. (6). New. 
 land vs. Rogers, 3 Barb., Ch. 432, 
 
38 OF BILLS IN EQUITY. 
 
 " ant, a copy of the whole bill as amended ; and if there be 
 " more than one defendant, a copy shall be furnished to each 
 " defendant affected thereby " («). 
 
 But to insert a wholly different case is not an amendment 
 even under the above very liberal provisions {b). 
 
 Matters which have occured since the filing of the original 
 bill cannot ordinarily be introduced by amendment of the bill, 
 but must be brought in if at all by supplemental bill, or some 
 bill in the nature of a supplemental bill {c). 
 
 The proper procedure in amending is to file what is termed 
 an amended bill, which states no more of the original bill than 
 is necessary to make the amendment intelligible, and not to 
 interline the original bill {d). But if the amendments are 
 merely a word or two here and there and are not numerous they 
 may be interlined {e). 
 
 Care must especially be taken that the bill presents the 
 real case. It is immaterial how gcod a case the evidence shows 
 unless the same case is presented by the bill. In equity relief 
 is granted only secundum allegata et probata. In some cases 
 however the court will permit an amendment even at the hear- 
 ing of the case (/). 
 
 In conclusion I will refer you to Barton's Suit in Equity, 
 pages 38 to 62 where you will find some forms of bills which 
 will doubtless materially assist your comprehension of these 
 subjects. 
 
 a. U. S. Equity Bule, No. 28. (6). Shields vs. Barrow, 17 How., 130 ; Good- 
 year ts. Bourn, 3 Blatchf., 266. (c). Copen vs. Flesher, 1 Bond, 4.40 ; Swatze] 
 vs. Arnold, Woolw., 383. (d). Pierce vs. West, 3 Wash. C. C, 354. (e). Luce 
 vs. Graham, 4 Johns. Ch., 170 ; Willis vs. Evans, 2 Ball & Beat., 225; see also 
 Bennington Iron Co. vs. Campbell. 2 Paige, 159; Hunt vs. Holland, 3 Paige, 82. 
 ( f ). Neale vs. Neales, 9 Wall. 1; The Trenton Patent, 23 Wall., 518; Battle vs. 
 Life Insurance Co., 10 Blatchf., 418. 
 
LECTURE III. 
 
 OF APPEARANCE OF THE DEFENDANTS, AND OF 
 DEFENSES TO A SUIT. 
 
 Our last lecture dealt with the application to chancery for 
 relief, and closed with the filing of the bill with the clerk of 
 court. 
 
 Before proceeding to the consideration of the subjects of 
 compelling appearance and appearing, we may properly turn 
 our attention for a moment to the office of the clerk, his powers 
 and duties under the Federal practice. 
 
 "The circuit courts, as courts of equity, shall be deemed 
 " always open for the purpose of filing bills, answers, and other 
 " pleadings, for issuing and returning mesne and final process 
 " and commissions, and for making and directing all interlocu- 
 " tory motions, orders, rules, and other proceedings, preparatory 
 " to the hearing of all causes upon their merits (a)." 
 
 "The clerk's office shall be open, and the clerk shall be in 
 " attendance therein, on the first Monday of every month, for 
 " the purpose of receiving, entering, entertaining, and disposing 
 " of all motions, rules, orders, and other proceedings 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 rules (d)." This first Monday in the month is com- 
 monly known as "Rule day in Chancery." 
 
 "All motions and applications in the clerk's ofifice for the 
 " issuing of mesne process and final process to enforce and 
 " execute decrees, for filing bills, answers, pleas, demurrers, and 
 " other pleadings; for making amendments to bills and answers; 
 " for taking bills pro confesso; for filing exceptions, and for 
 " other proceedings in the clerk's ofifice which do not, by the 
 " rules * * * require any allowance or order of 
 
 " the court, or of any judge thereof, shall be deemed motions 
 
 (o) U. S. Equity Rule, No. 1. (6) U. S. Equity Rule, No. 2. 
 
40 OF APPEARANCE OF THE DEFENDANTS. 
 
 " and applications grantable of course by the clerk of the 
 " court. But the same may be suspended, or altered, or 
 " rescinded by any judge of the court, upon special cause 
 ' shown (a)." 
 
 In the Federal practice the process of subpoena constitutes, 
 in all suits in equity, thQ proper mesne process, in the first 
 instance, to require the defendant to appear and answer the 
 exigency of the bill {i>). "No process of subpcena shall issue 
 " from the clerk's office in any suit in equity until the bill is 
 " filed in the office (c)." It follows that no suit in equity can 
 be begun otherwise than by filing the bill. "Whenever a bill is 
 " filed the clerk shall issue the process of subpcena thereon, as 
 " of course, upon the application of the plaintiff" (d). This 
 application is made in writing and is termed 2upraecipe. It 
 should show the nature of the writ desired, to whom it is to 
 run, at whose suit, and when it is to be made returnable into 
 court. Where there is more than one defendant, plaintiff, at 
 his election, may have a joint subpoena against all the defend- 
 ants, or, except in the case of husband and wife defendants, 
 may have a separate writ to each defendant (^). Further, 
 plaintiff has the right to elect whether he will have the writ 
 made returnable at the next rule day occurring after twenty 
 days from the time of issuing the writ, or the next but 
 one (/). 
 
 The writ of subpoena from the United States Circuit Court 
 bears teste in the name of the chief justice of the United 
 States, and commands the defendant to appear and answer the 
 bill and to do further whatever the court shall have considered 
 in that behalf. It is signed by the clerk, and bears the seal of 
 the court. It runs in the name of the president of the United 
 States iyg). 
 
 At the bottom of the subpoena is placed a memorandum 
 that the defendant is to enter his appearance in the suit in the 
 clerk's office on or before the day at which the writ is returna- 
 ble, or otherwise the bill may be t3ken pro confesso {k). 
 
 (a) V. S. Equity Rule, No. 5. (6) U. S. Equity Rule, No. 7. (c) U. S. Equity 
 Rule, No. 11. (d) U. S. Equity Rule, No. 12. (e) U. S. Equity Rule, No. 12. (/) 
 U. S. Equity Rule, No. 12. (g) U. S. Rev. Stat., Sees. 911-913. (h) U. S. Equity 
 Rule, No. 12; an example of a writ of subpoena is shown in Barton's SuitinEqtdty, 
 page 65. 
 
OF APPEARANCE OF THE DEFENDANTS. 41 
 
 "The service of all process, mesne and final, shall be by 
 " the marshal of the district, or his deputy, or by some other 
 " person specially appointed by the court for that purpose and 
 " not otherwise. In the latter case, the person serving the 
 " process shall make afifidavit thereof" {a). And the courts see 
 to it that their officers exercise due diligence in the performance 
 of these duties (d). 
 
 "The service of all subpoenas shall be by delivery of a copy 
 " thereof, by the officer serving the same, to the defendant 
 " personally, or by leaving a copy thereof at the dwelling-house 
 " or usual place of abode of each defendant, with some adult 
 " person who is a member or resident in the family" (c). 
 
 But no subpoena can so be served outside of the district 
 for which it is issued (d). The only other means in the Federal 
 equity practice of reaching a defendant is under the recent 
 statutory provisions to which reference has been made (ante. 
 Lecture I, pg. i8). But of course appearance without objection 
 waives all defects in the service (e) as also the lack of a prayer 
 for process in the bill (/). And voluntary appearance always 
 confers jurisdiction as full as could be acquired by any service (g). 
 
 "Whenever any subpoena shall be returned not executed 
 " as to any defendant, the plaintiff shall be entitled to another 
 " subpoena, tofies quoties against such defendant, if he shall 
 " require it, until due service is made" (^). 
 
 "Upon the return of the subpoena as 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" (?). 
 
 "The appearance day of the defendant shall be the rule 
 " day to which the subpoena is made returnable, provided he 
 " has been served with the process twenty days before that 
 " day; otherwise, his appearance day shall be the next rule day 
 " succeeding the rule day when the process is returnable" {¥). 
 
 (a) U. S. Equity Rule, No. 15; U. S. vs. Montgomery, 3 Pall., 335; Hyman vs. 
 Chales, 12 Fed. Rep., 855; Jobbins vs. Montague, 5 Ben., 429. (6) Ins. Co. vs. 
 Adams, 9 Pet., 573; Harriman ys. Rockaway Co., 5 Fed. Rep., 461; U. S. vs. 
 Moore, 3 Brock., 317; Breiier vs. Elder, 33 Minn., 147. (c) U. S. Equity Rule, 
 No. 13, as amended in 1872, 21 Wall., v; O'Hara vs. McConnell, 3 Otto, 151; 
 Phoenix Co. vs. Wulf, 9 Biss., 285. (d) Jobbins vs. Montague, 5 Ben., 439. (c) 
 Grade vs. Palmer, 8 Wheat., 299; Marye vs. Strouse, 5 Fed. Rep., 494; Knox vs. 
 Summers, 3 Cranch, 496. (/) Segee vs. Thomas, 3 Blatchf., 11. (g) Nelson 
 vs Moon, 3 McLean, 319; Carrington vs. Brent, 1 McLean, 167; Jones vs. An- 
 drews, 10 Wall., 337; Virginia Co. vs. U. S., Taney, 418; Osborne vs. U. S. Bank, 
 9 Wheat., 739; Shelton vs. Tiffin, 6 How., 163. (ft.) U. S. Equity Rule, No. 14. 
 (i) U. S. Equity Rule, No. 16. (fc) U. S. Equity Rule, No. 17. 
 
43 OF APPEARANCE OF THE DEFENDANTS. 
 
 If a defendant fails to appear, the bill may be taken /w 
 confesso, or if an answer is necessary to the relief sought by 
 the plaintiff, and taking the bill pro confesso will not suffice, 
 steps may be taken to compel appearance and answer substan- 
 tially as in case of failure to answer. Attention will shortly be 
 given to the methods in such case. 
 
 Appearance is either personal or by solicitor, and consists 
 ordinarily in filing a written request to the clerk to enter the 
 appearance. This is termed a praecipe for appearance. The 
 appearance is thereupon on the day thereof entered by the 
 clerk in the order book (a). This is a book kept by the clerk, 
 concerning which we find the following provisions: "All mo- 
 " tions, rules, orders, and other proceedings made and directed 
 " at chambers, or on rule days at the clerk's office, whether 
 " special or 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. And, except in cases where personal or 
 " other notice is specially required or directed, such 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 such 
 " order book, touching any and all the matters in the suits to 
 " and in which they are parties and solicitors. And notice to 
 " the solicitors 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 re- 
 " quired. Where 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 requiring personal 
 " service on the parties, in their discretion" (b). 
 
 From these provisions it will be seen that proceedings in 
 equity in the Federal practice are carried on in the court, and 
 not outside, as is so largely the case in our State practice. 
 
 (a) U. S. Equity Rule, No. 17. (6) U.S. Equity Rule, No. 4. 
 
OF APPEARANCE OF THE DEFENDANTS. 43 
 
 Notices are not ordinarily served, nor are pleadings or other 
 papers in a suit. The papers are filed in the clerk's office, and 
 the filing entered by the clerk in his books; and it is for the 
 solicitor to keep watch of what is being done. Every step, 
 properly, is taken in court, and is shown in the records and files 
 of the proceeding. 
 
 At the time of entering appearance, the defendant, in the 
 natural course of events, takes a copy of the bill out of the 
 clerk's office, and by so doing puts the first abridgement on 
 the plaintiff's right to amend the bill (a). 
 
 It is the duty of the defendant to file his defensive plead- 
 ing on the rule-day next succeeding that of his appearance; 
 though the time may be enlarged, for cause shown, by a judge 
 of the court, upon motion for that purpose {l>). 
 
 It may not, perhaps, be improper to call attention here to 
 two further rules of the Federal courts applicable to the mak- 
 ing of motions, although the motion just mentioned is one that 
 may be made without notice, and therefore not within the fol- 
 lowing provisions. 
 
 "Any judge of the circuit court, as well in vacation as in 
 " term, may, at chambers, or on the rule 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 court could make and direct the 
 " same in term, reasonable notice of the application therefor 
 " being first given to the adverse party, or his solicitor, to 
 " appear and show cause to the contrary at the next rule-day 
 " thereafter, unless some other time is assigned by the judge 
 " for the hearing" (c); and "All motions for rules or orders 
 " and 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 
 
 (a) U. S. Equity Rule, No. 28; Ante, Lecture II, pg. 37. (b) U. S. Equity 
 Rule, No. 18. (c) U. S. Equity Rule, No. 3. 
 
44 OF APPEARANCE OF THE DEFENDANTS. 
 
 " 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). 
 
 In case the defendant fail to file his answer, demurrer, or 
 plea, within the time provided the plaintiff may, at his election, 
 have an order entered (as of course) in the order book that 
 the bill be taken pro confesso, and thereupon the cause shall be 
 proceeded in ex parte, and the matter of the bill may be de- 
 creed by the court at any time after the expiration of thirty 
 days from and after the entry of said order, if the same 
 can be done without an answer, and is proper to be de- 
 creed; or, the plaintiff, if he requires any discovery or 
 answer to enable him to obtain a proper decree, shall 
 be entitled to process of attachment against the defend- 
 ant 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 such 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 {p). 
 
 "When the bill is taken pro confesso the court may proceed 
 " to a decree at any time after the expiration of thirty days 
 " from and after the entry of the order to take the bill pro 
 " confesso, and such decree rendered shall be deemed absolute, 
 " unless 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" 
 
 A decree entered under this rule is merely nisi until the 
 succeeding term of court ; moreover, until that time, a default 
 
 (a) U. S. Equity Rule, No. 17. (6) U. S. Equity Rule, No. 4. (c) U. S. Equity 
 Rule, No. 19. 
 
OF APPEARANCE OF THE DEFENDANTS. 45 
 
 will usually be set aside on motion, on condition that defendant 
 will plead to the merits and go to trial (a). If the defendant 
 has in any way appeared, notice should be given of application 
 for a decree, after order pro confesso (b). 
 
 Where substituted service is had the judgment may be 
 opened as provided in the Revised Statutes {c). 
 
 OF THE DEFENSE TO A SUIT IN EQUITY. 
 
 We come now to the consideration of the pleadings which 
 are at the command of a defendant in an equity suit. They 
 are of the following kinds: Demurrers, Pleas, Answers, Plead- 
 ings combining any two of the last three, or all three. 
 Disclaimers and Cross-bills. In addition we may place with 
 these, as part of the armory of the defendant in pleading his 
 cause, the remedy of exceptions to the bill. These different 
 weapons of the defendant we may now consider, beginning 
 with exceptions. 
 
 I.) Of Exceptions to the Bill. As we have already 
 seen, a bill is to be expressed in as brief and succinct terms as 
 it reasonably can be, and must contain no impertinent or scan- 
 dalous matter. And if it does contain such matter the 
 impertinence and scandal may be expunged on reference to a 
 master (^d). It is, of course, frequently useful to the defendant 
 to have the bill purged of scandalous and impertinent matter, 
 so that he may know by the decision of the court what he has 
 "to meet; indeed, at times other reasons exist which make it 
 important that such improper matter be stricken out. The 
 means of obtaining this remedy is by exceptions, as they are 
 termed, to the bill (if). Exceptions to the bill are allegations 
 in writing, signed by counsel, stating that the bill is scandalous 
 or impertinent, and describing the particular passages considered 
 to be such. Such exceptions to the bill mutt be filed, it at all, 
 
 (a) O'Hara vs. McConnell, 3 Otto, 150 ; Kemball vs. Stewart, 1 McLean, 332. 
 (6) Bennett vs. Hoefner, 17 Blatchf., 341. (c) U. S. Rev. Stat. (1878), See. 738. 
 \d) Ante, Lecture II, pages 35 and 36 ; U. S. Equity Rule, No. 26. (e) U. S. 
 Equity Rule, No. 27. 
 
46 OF THE DEFENSE TO A SUIT IN EQUITY. 
 
 on or before the next rule day after the process on the bill is 
 returnable. The bill may thereupon be referred to a master by 
 the judge, by order of reference; 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 on or before the next rule day, 
 or the master shall certify that he needs further time ( a). 
 Upon the coming in of the master's report, the matter will be 
 disposed of according to the same, subject, of course, to review 
 by the court. A similar course of practice obtains as to other 
 pleadings, as we shall see later. This remedy by exceptions is 
 wholly interlocutory in its nature. By demurring, pleading, or 
 answering one waives all objections that the bill contains 
 impertinent matter, though the presence of scandalous matter 
 is not so waived {b). 
 
 2). Of Demurrers. A demurrer in equity is, in its gen- 
 eral nature, quite similar to a demurrer at law. In each 
 procedure it is a method of calling attention to some defect 
 apparent on the face of the antecedent pleadings. But there 
 are several important differences. To begin with, in equity 
 demurrer does not lie to any pleading except the bill. An 
 answer is never to be demurred to in equity. If plaintiff 
 deems himself entitled to the relief he seeks, on the face of the 
 bill and answer, or plea, he has his means of relief, but it is not a 
 demurrer. On the other hand, just as the bill is a more com- 
 plicated instrument than a declaration, so the demurrer has been 
 developed to meet it. As we have already seen, a bill in equity 
 for relief ordinarily seeks relief and also disclosure. To under- 
 stand the demurrer in equity, this distinction must be kept 
 constantly in mind, as must also the double office of the 
 answer, as defensive pleading and disclosure. In equity, the 
 defense of a suit is properly separable into two great divisions, 
 first, protecting the defendant from the necessity of answering; 
 secondly, defending on the merits. The demurrer and the plea 
 in equity are regarded primarily as dilatory pleadings useful in 
 defenses of the first class {c). 
 
 (a) U. S. Equity Rules, Nos. 26 and 27. (6) 1 Barbour's Chancery Practice, 
 page 101; Anon., 2 Yes. Sr., 631. (c) U. S. Equity Rules, Nos. 31 to 38. 
 
OF THE DEFENSE TO A SUIT IN EQUITY. 47 
 
 The general form of a demurrer in equity will be found in 
 Barton's Suit in Equity, page 86, and in Story's Equity Plead- 
 ing, Section 455, notes i and 2. Under the Federal practice a 
 demurrer must be signed by counsel and further must 
 be accompanied by a certificate of counsel that in his 
 opinion it is well founded in point of law, and supported by 
 the affidavit of the defendant that it is not interposed for de- 
 lay {a). When so made out, certified, and verified, the demurrer 
 is filed with the clerk of the court. The plaintiff must then 
 set down the demurrer for argument on the rule-day when the 
 same is filed or on the next succeeding rule day, or he will be 
 deemed to admit its sufficiency and his bill will be dismissed 
 as of course, unless he be allowed further time by one of the 
 judges (d). 
 
 Demurrers are subdivided in the first place as at law into 
 general and special demurrers; and no defect .of form can be 
 taken advantage of on demurrer that is not specified in the de- 
 murrer. But, on demurrer to the whole bill, defects of sub- 
 stance, not so specified, may be urged ore ienus, at the hearing. 
 As at law, too, no defect can be raised on demurrer which is 
 not apparent on the face of the bill. A demurrer by which 
 one seeks to bring in facts outside the record is termed a 
 "speaking demurrer." A speaking demurrer is invariably 
 bad (c). Where there are several defendants, if they all join 
 in one demurrer to a bill, the demurrer may be good and al- 
 lowed as to one of the defendants, and be bad and disallowed 
 as to the others, for this defense may be good as to one de- 
 fendant and be wholly inapplicable as to another. But on the 
 other hand if there be several plaintiffs and one ground of de- 
 murrer be assigned against them all, and that ground be bad as 
 to one plaintiff the demurrer will be overruled. There is a 
 clear distinction between a demurrer which is too large as to 
 the defendants, and one too large as to the plaintiffs (^). In 
 this regard there is a wide difference between law and equity, 
 
 (a) U. S. Equity Rule, No. 31 ; National Bank ys. Ins. Co., 14 Otto, 54. (V) 
 U S Equity Rule, No. 38 ; Newby vs. Oregon R. R., 1 Sawy., 63 ; National Bank 
 TS Ins. Co., 14 Otto, 54. (c) Campbell vs. Mackay, 1 Mylne & Craig, 603, 613; 
 Edsell vs. Buchanan, 2Ves. Jr., 83; Brooks vs. Gibbons, 4 Paige, 375. (d) Story, 
 Equity Pleading, Sec. 445 ; Barstow vs. Smith, Walk. Ch. 394; N. Y. & N. H. R. R. 
 ■vs. Schuyler, 17 N. Y., 592 ; Gibson vs. Jayne, 37 Miss., 164. 
 
48 OF THE DEFENSE TO A SUIT IN EQUITY. 
 
 for at law a joint pleading bad as to one is bad as to all. 
 
 Demurrers in equity are either to the whole bill or to but 
 a part thereof. 
 
 a). Demurrers to Relief. These are substantially 
 like demurrers at law, and are based on the claim that the 
 whole bill, on its face, fails to present a case for relief 
 of any kind against the demurrant. This may be for a lack 
 of substance in the bill, or want of jurisdiction, or for a 
 defect in the frame or form of the bill, as defect of parties. 
 
 In the English practice on demurrer to the relief, if the bill 
 stated merely grounds for discovery, and showed none for re- 
 lief, but went on to pray relief, the bill would be entirely dis- 
 missed, but in the American practice a more liberal rule ob- 
 tains and in such case if a demurrer to the relief be sustained 
 the bill may still be retained as a bill for discovery. Other- 
 wise a demurrer to relief operates as a demurrer to the whole 
 bill. A statenrent of the grounds for demurrer to the relief 
 will be found in Story's Equity Pleading, Sections 466 to 
 
 544. 
 
 b). Demurrers TO Discovery. Bills merely for discovery 
 have given rise to a great deal of litigation and demurrers to 
 such bills, demurrers to discovery, present many delicate 
 questions. These are discussed at length in Story's Equity 
 Pleading, Sections 545 to 610 a. 
 
 Where the bill is for discovery and prays relief, the 
 defendant may, if he pleases, demur to the relief and answer 
 to the discovery. But he cannot demur to the discovery and 
 answer to the relief, when the discovery sought is merely 
 incidental to the relief. 
 
 c). Demurrers to Particular Interrogatories. Fur- 
 ther the defendant may demur to any particular interrogatory 
 in a bill on the following special grounds: a). That it is imma- 
 terial to the purposes of the suit; b). That the answer may 
 subject the defendant to a penalty or forfeiture, or would com- 
 pel him to criminate' himself, or would have a tendency there- 
 to; c). That it would involve the breach of some confidence 
 which it is the policy of the law to preserve inviolate; 
 
OF THE DEFENSE TO A SUIT IN EQUITY. 49 
 
 d). That the matter sought to be discovered appertains to the 
 title of the defendant and not to that of the plaintiff; e). That 
 defendant is a bona fide purchaser without notice for value («). 
 
 Of course in all cases of demurrer it is understood that 
 the defect must be apparent on the face of the bill. 
 
 Care should be taken in drawing a demurrer not to include 
 some part which is good along with what is objectionable, for 
 in such case the demurrer being too broad will be overruled, 
 the demurrer being entire {b). If a demurrer be overruled a 
 second demurrer to the same extent cannot be allowed. Since 
 on argument of a demurrer any ground of substance can be as- 
 signed, ore tenus, a new demurrer would be merely a rehearing 
 of the former demurrer. However, by leave of court, a de- 
 murrer may be withdrawn and a less extensive demurrer put 
 in. Ordinarily application to do so must be made before 
 judgment is pronounced on the first demurrer, though the 
 court may act without such prior application {c). 
 
 In the English practice the principle was adopted that if 
 a demurrer did not cover so much of the bill as it might by 
 law have extended to it would be held bad, and further that if 
 the defendant answered to any part of the bill to which his de- 
 murrer extended, the demurrer would be overruled on argu- 
 ment, in consequence. Both of these doctrines were adopted 
 on the principle that by omitting to protect himself where he 
 might have done so by the same objection, and answering de- 
 spite the objection, the defendant had waived his protection. 
 In the Federal practice these doctrines have been changed by 
 the rules, and no demurrer will be held bad solely because it 
 does not cover as much of the bill as it might have extended 
 to, or because the answer extends to some part of the matter 
 covered by the demurrer {d). 
 
 If a demurrer to the whole bill be sustained the bill is out 
 of court(i?). But after sustaining a demurrer the court may in 
 its discretion allow the bill to be amended and reinstated (/). 
 But this is a matter of discretion and not reviewable on ap- 
 
 to) story Eq. Plead., Sees. 545, 603. (6) Dimmock vs. Bixby, 20 Pick., 
 368- Beach TS. Beach, 11 Paige, 161. (c) Baker ts. Mellish, 11 Ves., 68. (d) U. 
 S EcrnitT Rules, Nos. 36 and 37. (e) Smith vs. Barnes, 1 Dick., 67. (/) U. S. 
 Equity Rule, No. 35. Hunt ys. Rousmaniere, 2 Mason, 342 ; Bank vs. Stevenson, 
 7 Allen, 489. 
 
50 OF THE DEFENSE TO A SUIT IN EQUITY. 
 
 peal except for abuse of discretion (a). If the allowance of a 
 demurrer to the whole bill is clearly on the merits of the ques- 
 tion, the decision, unless amendment is allowed, is a bar to 
 another suit. If not cleai4y decided on the merits it is not a 
 bar (d). The allowance of a partial demurrer leaves the part 
 ot the bill not demurred to in the court to be proceeded with 
 as though no demurrer had been had. 
 
 If a demurrer be overruled the judgment is respondent ous- 
 ter. Thereupon the defendant may have recourse either to a 
 plea or to an answer (c). 
 
 The principal objects of demurring in equity, since the 
 provisions of the rules as to delay, are to avoid a discovery, 
 which may be prejudicial to the defendant, or to cover a de- 
 fective title, or to prevent unnecessary expense. If no one of 
 these is attained there is little to be gained by demurring. In 
 general if a demurrer would holdto the bill, the court, although 
 defendant answers, would refuse relief upon the hearing. It is 
 said that in some rare cases the court has given relief on the 
 hearing when it would have sustained a demurrer. Such cases 
 are exceedingly rare, except in cases of form, where either an 
 amendment or a new bill would be possible ((f). 
 
 3). Of Pleas. Sometimes this object of avoiding answering 
 cannot be attained by demurrer because the facts do not sufifi- 
 ciently appear on the face of the bill. If the defendant submit- 
 ted to answer it was a rule that to so much of the bill as he at- 
 tempted to answer, he must answer fully. Accordingly, a plead- 
 ing was invented by which the defendant might protect himself 
 from answering, when the facts entitling him to such protection, 
 did not appear on the face of the bill. And this pleading is called 
 a plea. A plea is a special sort of defensive pleading showing 
 one or more things as a cause why the suit should be either 
 dismissed, delayed, or barred, or why the defendant should not 
 make some discovery required of him by the bill; and it de- 
 mands the judgment of the court in the first instance whether 
 the special matter urged by it does not debar the plaintiff of 
 his apparent right to the answer which the bill requires. 
 
 <a) Smith vs. Babcock, 3 Sumner, 583. (6) 1 Daniel's Ch. Plead., page 598. 
 (c) U. S. Equity Rule, No. 34. (d) Story, Eq. Plead., Sec. 4,47. 
 
OF THE DEFENSE TO A SUIT IN EQUITY. 51 
 
 In most cases, the office of a plea is to save the parties 
 from the expense of an examination of the witnesses at large, 
 a consequent rule as to pleas is that they must be single unless 
 in special cases the court, in its discretion, grant permission to 
 interpose a double plea (a). 
 
 Sometimes the showing by a plea consists in a denial of 
 allegations in the bill, sometimes of other matter. A plea con- 
 tains no disclosure, and is not evidence for the defendant; any 
 disclosure must be made by answer. If the plea denies an al- 
 legation of the bill, it must be accompanied by an answer, 
 making discovery as to the truth of the allegation so denied, 
 for as to any allegation of the bill that defendant denies the 
 plaintiff is entitled to a discovery from the defendant, unless he 
 excuses himself from making the discovery on some of the 
 grounds before mentioned. Pleas which merely set up new 
 matter do not need to be so accompanied by an auxiliary ans- 
 wer, and are termed pure pleas, pleas which are so accompan- 
 ied by answer auxiliary to the plea are termed impure. In every 
 case where the bill specially charges fraud or combination, a 
 plea to such part must be accompanied by an answer fortifying 
 the plea and explicitly denying the fraud and combination and 
 the facts on which the charge is founded {b). Like demurrers, 
 pleas may be to the whole bill, to the relief, to the discovery, 
 or to separate parts of the discovery demanded. 
 
 a.) Pleas to Relief. As in the case of demurrers, a 
 plea to the relief is ordinarily effective as a plea to the whole 
 bill. Fleas to relief are of four kinds, as follows : i) to the 
 jurisdiction; 2) to the capacity of the person; 3) to the frame 
 or form of the bill; 4) in bar of the bill (<r). 
 
 I.) Pleas to the jurisdiction are, like those of the 
 same name at law, to the effect that some other tribunal is the 
 appropriate tribunal, as that the matter is properly cognizable 
 at law and not in equity (d). Unless this particular defense is 
 raised by demurrer or plea, or at latest by answer, it is, as we have 
 seen, ordinarily denied {e). A plea, too, is the only way in 
 the federal practice of raising the question of jurisdiction by 
 
 (a) Story, Eq. PI., Sees. 654, 657, and notes. (6) U. S. Eg. Rule, No. 32. 
 (c) Story, Eq. PI., Sees. 704 and 705. {d) id. Sees. 706-721. (e) Ante, Lee- 
 ture I, page 5. 
 
52 OF THE DEFENSE TO A SUIT IN EQUITY. 
 
 denying the citizenship of the parties. A denial in the answer 
 is insufficient, it seems, as answering is an admission that the 
 court has jurisdiction (a). 
 
 2.) Pleas to the Person. These are either that the plain- 
 tiff has not capacity to sue or that the defendant has immunity 
 from suit, or further that the parties do not sustain the charac- 
 ter stated in the bill, as heir, administrator, etc. (d). 
 
 3.) Pleas to the Frame or Form of the Bill. These 
 are either that there is another suit pending, or that there is a 
 defect of parties, or pleas of multiplicity, or pleas of multifar- 
 iousness {c). 
 
 4.) Pleas in Bar of the Suit. These are of the fol- 
 lowing classes : 
 
 (a.) Pleas founded on a bar created by statute — 
 (i.) Statute of Limitations. 
 (2.) Statute of Frauds. 
 (3.) Miscellaneous statutes. 
 {i>.) Pleas of matter of record or as of record in some 
 court. 
 
 {c.) Pleas of Matter in Pais — 
 (i.) Release. 
 (2.) Account stated. 
 (3.) Settled account. 
 (4.) Award. 
 
 (5.) Purchase for a valuable consideration with- 
 out notice. 
 (6.) Title in defendant. 
 («.) By will. 
 (^.) By conveyance. 
 (<r.) By length of time and adverse 
 possession {d). 
 b.) Pleas to the Discovery. These are used only to 
 bills of discovery (e). 
 
 (T.) Pleas to Particular Interrogatories. These are 
 for use in substantially the same cases as demurrers of the 
 same kind (/). 
 
 (a) Story, Equity Plead., Sec. 731. (6) Story, Equity Plead., Sees. 722-734 
 (0) Story, Equity Plead., Sees. 735-747. (d) Story, Equity Plead., Sees. 748- 
 815a. (e) Story, Equity Plead., Sees. 816-825. (/) See Ante., pp. 48 and 49. 
 
OF THE DEFENSE TO A SUIT IN EQUITY. 53 
 
 Pleas in the United States practice are to be accompanied 
 by the same certificate and affidavit as demurrers, and further 
 by an affidavit of the defendant that the plea is true in point 
 of fact (a). 
 
 Both pleas and demurrers were formerly always drawn 
 with a protestation. The only use of this was to prevent any 
 conclusion in another suit. Its usefulness has disappeared 
 under modern statutes and it is sometimes omitted. This was 
 the first part of a plea; then followed a statement of 
 the extent to which the plea went, as to part of the 
 bill or the whole thereof, in the former case specifying 
 such part particularly; then followed the substance of the plea. 
 Lastly came a statement that these matters were relied on as 
 an objection to the jurisdiction, or to the person, or otherwise, 
 concluding with a prayer for the judgment of the court whether 
 the defendant ought to be compelled to make other an- 
 swer. 
 
 The plea when thus framed is filed with the clerk. The 
 plaintiff may then either take issue thereon or set down the 
 plea for argument. If upon an issue the facts stated in the 
 plea are determined for the defendant, they shall avail him as 
 far as in law and equity they ought to avail him {d). It is a 
 rule of equity that if plaintiff take issue on the plea he admits 
 its sufficiency, and in such case if the plea be to the whole bill 
 and be found true, dismissal of the bill is merely a matter of 
 course. If the plaintiff deem the plea insufficient in point of law 
 he should set it down for argument (c). If the plea is 
 allowed and sustained, the bill so far as the plea is so 
 allowed will be disposed of, though the court may allow 
 the plaintiff to amend as in case of demurrer {d). It the 
 plea is overruled the defendant will be assigned to answer (e). 
 
 If the plaintiff fails to reply to a plea or to set it down for 
 argument his bill shall be dismissed as of course (/). 
 
 As in the case of demurrers no plea will be held bad solely 
 because it does not extend to so much of the bill as it might 
 
 (a) U S. Equity Rule, No. 31. (6) U. S. Equity Rule, No. 33. (c) U.S. Equity 
 Rule, No. 33. (d) Myers vs. Dorr, 13 Blatchf. 22; Gernon vs. Boecaline, 2 Wash. 
 C. C, 199 ; Story. Eq. Plead., Sec. 697. (e) U. S. Equity Rule, No. 34. (/) U, S. 
 Equity Rule, No. 38. 
 
54 OF THE DEFENSE TO A SUIT IN EQUITY. 
 
 have done, nor solely because the answer put in extends to 
 some part of the matter covered by the plea. (a). 
 
 Where the defendant attacks but part of the bill by plea or 
 demurrer he must at the same time file his answer to the resi- 
 due of the bill (/5). 
 
 If his demurrer or plea be overruled defendant must then 
 answer, in default whereof the bill may be taken pro confesso 
 and the matter be proceeded in accordingly (c). If on the 
 other hand plaintiff is permitted to amend he must do so 
 within the allotted time or the cause will proceed as if no appli- 
 cation to amend had been made {d). 
 
 Pleas and demurrers in equity are technical instruments 
 and in the Federal practice they are by no means favored; the 
 tendency is to dispense with pleas and demurrers as far as 
 possible and allow all excuses for failure to answer parts of 
 the bill to be set up in the answer itself. The two following 
 rules explain themselves. 
 
 "The rule, that if the defendant submits to answer he shall 
 " answer fully to, all the 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 en- 
 " titled 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 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 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. Thus for example, 
 " a (5o«ia: 7?^^ 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 dis- 
 " covery of his title than he would be in any answer in support 
 '■ of such plea" (^). 
 
 (a) U. S. Equity Rules, Nos. 36 and 37. (V) U. S. Equity Rule, No. 32. (c) U. 
 S. Equity Rule, No. 34,. (d) U. S. Equity Rule, No. 30. (6) U. S. Bq. Rule, No. 39. 
 
OF THE DEFENSE TO A SUIT IN EQUITY. 55 
 
 " A defendant shall be at liberty, by answer, to decline 
 ■" answering any interrogatory, or part of an interrogatory, 
 " 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" (a). 
 
 As a result of these rules the use of the plea is rare in the 
 Federal practice, except in cases of the denial of the citizenship 
 of parties, of matters of abatement, or of matters going to the 
 character of the parties, or to the form of the bill. 
 
 In any case where the objection can be taken by answer it 
 is advisable, unless one feels very sure of his ground, to abstain 
 from the use of a plea. The question, what defenses cannot be 
 raised by answer, will be considered in connection with the 
 subject of answers (d). 
 
 Certain forms of pleas will be found in Barton's Suit in 
 Equity on pages 93 and 94. 
 
 (a) U. S. Equity Rule, No. 44. (ft) Infra, Lecture IV, pages 69, 60, and 61 
 
 NoTB. — With regard to the effect of taking issue on a plea under the United 
 States Equity Rule No. 33 (ante page 53), the student may consult with advan- 
 tage the following recent cases, which, however, do not seem to be altogether har- 
 monious: Matthews vs. Lalance etc. Co., 2 Fed. Rep., 232; Myers vs. Dorr, 13 
 Blatchf,, 22; Theberath vs. Rubber etc. Co., 5 Bann. & A., 384; Cottle vs. Kre- 
 mentz, 25 Fed. Rep., 494; Hughes vs. Blake, 6 Wheat., 453, 473 ; Farley vs. Kitt- 
 son, 120 U. S., 303. 
 
LECTURE IV. 
 OF ANSWERS, CROSS-BILLS, AND REPLICATIONS. 
 
 Before taking up the subject of answers in general, we 
 may give attention for a moment to a peculiar pleading in 
 equity, which is sometimes termed a variety of answer. 
 
 It occasionally happens that one who is made a party 
 defendant in an equitable suit does not desire to con- 
 test the plaintiff's application for relief, and is willing . 
 to admit that he claims no interest in the subject matter 
 of the suit. In such case, such defendant may file a 
 "disclaimer." In the old equity practice, where appear- 
 ance and pleading to the bill were regularly enforced, and 
 the system of taking the bill pro confesso had not become 
 the ordinary method of procedure against non- answer- 
 ing defendants, such a pleading was of importance. But it is, 
 by no means, always open to a defendant to file a disclaimer 
 alone. A defendant who desires to disclaim m,ay have had an 
 interest which he has parted with, and plaintiff is entitled to a 
 disclosure (made by answer accompanying the disclaimer) 
 sufficient to show whether or no such is the case, and, if so, 
 plaintiff may require further disclosure, to enable him to make 
 the proper person a party, instead of the disclaiming defend- 
 ant. Moreover, one cannot shelter himself from answering by 
 a disclaimer in cases where, though he has no interest, others 
 may have an interest against him. Liability cannot be dis- 
 claimed, but only interest in the demand. Further, a dis- 
 claimer by one defendant cannot be permitted to prejudice 
 the plaintiff's right against the others («).' 
 
 A disclaimer has the formal commencement and conclusion 
 
 of an answer. Further, it contains simply an assertion that the 
 
 defendant disclaims all right and title to the matter in demand. 
 
 ' It is put in and filed in the same way as an answer, and is al- 
 
 (a) Williams ys. Jones, 1 Younge, 252. ' 
 
OF ANSWERS. 57 
 
 most invariably supported by an auxiliary answer for the 
 purposes stated. 
 
 Of course, the defendant cannot by answer claim what he 
 repudiates by his disclaimer. If answer and disclaimer are 
 inconsistent, they will be construed against the defendant. 
 Sometimes, on a strong showing by defendant of mistake or 
 ignorance of his rights, the court will allow a defendant to 
 withdraw his disclaimer and put in an answer {a). 
 
 The disclaimer is now rarely used, and is of little practical 
 importance, except occasionally as affecting the right to costs. 
 
 OF ANSWERS. 
 
 If a defendant can neither protect himself by demurrer or 
 plea from answering the bill, nor disclaim all right and interest 
 in the subject of the suit, he must tput in an answer, either to 
 the whole bill, or to such parts of it as are not covered by his 
 demurrer or plea (d). Formerly, chancery enforced specific 
 obedience to this rule, but now, ii taking the hill pro con/esso 
 will sufifice, the court, instead of compelling an answer, will 
 proceed to decree without answer (^r). 
 
 Where there are several defendants, each is entitled, if he 
 chooses (subject to questions of costs), to put in a separate 
 answer, even though all the defendants have a common de- 
 fense. But ordinarily defendants having a common defense 
 join in answering. 
 
 No defendant is ordinarily called on to answer any part of 
 the bill except what applies to or concerns himself. 
 
 The answer of a defendant consists, first, of such state- 
 ments, material to his case, as he may think it necessary or 
 advisable to set forth as defenses to the plaintiff's demand, 
 and secondly, of defendant's answers to the discovery sought 
 by the bill ; or, if he has plead or demurred to a portion of 
 the bill, to the discovery sought by the portions of the bill not 
 covered by the demurrer or plea. These two offices of the 
 answer as disclosure and as pleading must be kept clearly in 
 mind, or confusion will result. 
 
 (a) story, Eq. Plead., Sees. 838-844; 1 Daniel's Ch, PI. & Pr., pp. 706-710. 
 (b) V. S. Equity Rules, Nos. 32 and 18. (c) U. S. Equity Rule, No. 18. 
 
58 OF ANSWERS. 
 
 The answer as a pleading is constructed on the same gen- 
 eral principles as a common law plea in bar, though this differ- 
 ence should be kept in mind, that much that would at law be 
 deemed merely evidentiary matter is properly pleadable in an 
 answer in equity, even apart from the disclosure, as affecting 
 the equities of the case or the relief to be granted. 
 
 A defendant, in his answer may set up as many defenses 
 as he has; but he may not make inconsistent statements (a). 
 He may put in an answer with a double aspect, that is, he may 
 set up as many defenses, as the consequence of the same state 
 of facts, as his case will allow, or the ingenuity of his legal ad- 
 visers may suggest. If the defendant sets up certain facts as 
 evidence of one particular case, which he claims as a conse- 
 quence of those facts and upon which he rests his defense, he 
 will not be permitted afterwards to use the same facts for the 
 purpose of establishing a different defense from that to which, 
 by his answer, he has called the plaintiff's attention {l>). Nor 
 is defendant permitted to make statements of fact in the 
 alternative. None of the facts stated must be inconsistent 
 with any of the defenses set up, but where different views 
 of the law show different defenses on the same state of facts, 
 there the different defenses may all be set up together, even 
 though additional facts are required to substantiate some of 
 the defenses {c). But these rules will not preclude one from 
 at once .denying the plaintiff's title and setting up a further de- 
 fense, good against the plaintiff, or any one else having title. 
 
 In stating the facts constituting his defense, defendant 
 must use so. much certainty as will inform the plaintiff of the 
 case to be made against him. Defendant is not held to the 
 same strictness in his answer as in a plea, nor even to quite 
 snch strictness as is required in a bill. But the defense set up 
 must be stated positively, without ambiguity or prolixity, and 
 with certainty to a common intent (d). 
 
 The answer must further be full and perfect to all the ma- 
 terial allegations of the bill, and should confess or traverse 
 
 (a) Jesus College vs. Gibbs, 1 Y. & C. Ex., 145, 160. (ft) 1 Daniel's Ch. PI. & 
 Pr., pp. 712 and 713; Bennett vs. Neale, Wightw., 334. (c) Jesus College vs. 
 . Gibbs, 1 Y. & C. Ex., 145. (d) 1 Daniel's Ch. PI. & Pr., pp. 711-716. 
 
OF ANSWERS. 59 
 
 them severally. It must state facts, and not arguments {a). It 
 may either traverse or confess and avoid the allegations of the 
 bill ; or may traverse some and confess and avoid others; or, 
 as we have seen, it may traverse the case made by the bill and 
 also avoid it without confessing {6). 
 
 The determination of the question what defenses may be 
 raised by answer is somewhat dependent for its solution on 
 whether the defense is sought to be interposed to the relief 
 (to the whole bill), or only for the purpose of protecting the 
 defendant from making disclosure. In general, nearly all de- 
 fenses to the relief maybe interposed by answer. But, i), de- 
 fenses which are proper for a plea to the jurisdiction must be 
 raised by plea, and cannot be raised by answer (c). 2), Defenses 
 to the relief on account of the incapacity of the parties must be 
 raised by demurrer or plea (d), except in the cases of pleas of 
 bankruptcy or insolvency of the plaintiff, and pleas that plaintiff 
 or defendant does not sustain the character charged in the bill; 
 these last defenses are substantially matters in bar and may be 
 raised by answer {e). 3), Coming to pleas to the frame or form 
 of the bill, we meet with more difificulty. The defense of another 
 suit pending in a court of equity should be taken by demurrer 
 or plea, though it may perhaps be sustained if taken by answer 
 (/). Objections on the ground of defect of parties are properly 
 to be taken by demurrer or by plea, and when the objection is 
 so taken it meets with more favor than if taken later; but the 
 objection may be taken by answer or at the hearing, or even 
 on bill of review, or on appeal (g). The defense of multipli- 
 city of suits is exceedingly rare; it would seem that the method 
 of raising this objection would bear much analogy to that in 
 the case of the defense of multifariousness. This last defense 
 is properly to be raised by demurrer, if apparent on the face of 
 the bill, otherwise by plea; it may, however, be I'aised by 
 answer, though the objection is viewed with less and less favor 
 as the suit progresses; if the objection is not taken in the 
 
 (a) story, Bq. Plead., Sec. 852. (6) Carte ts. Ball, 3 Atk., 496. (c) Story, 
 Eq Plead., Sec. 708; Livingston vs. Story, 11 Pet., 351; Dodge vs. Perkins, 4 
 Mason 435. (d) Story, Eq. Plead., Sec. 708; Gilbert vs. Lewis, 1 DeG. J. & S., 
 38. (e) Story, Eq. Plead., Sees. 726-734. {/) Long vs. Storie, 9 Hare, S42; 
 Hertell vs VauBuren, 3 Bdw. Ch., 30; Cooper's Pleading, 274; see also Lucas 
 TS Holder, 1 Eq. Ca. Abr., 41, pi. 3. (fir) Story, Eq. plead., Sees. 75 and 236; 
 ante, Lect. I, p. 15. 
 
60 OF ANSWERS. 
 
 pleadings, it is deemed waived, so far as the parties are con- 
 cerned, though the court may raise the objection of its own 
 motion, even at the hearing (a). 4), All defenses to the relief 
 proper for pleas in bar may be taken by answer (d). 
 
 We turn now to the consideration of the answer in its 
 other office, that of a disclosure to the bill. It is to the answer 
 in this aspect that the rule especially applies, that the defend- 
 ant, if he answers, must answer fully, save only in so far as he may 
 have protected himself by plea or demurrer. This rule is almost 
 inflexible (c). It means that the defendant must, step by step, 
 make full disclosure as to each interrogatory propounded to 
 him, without reservation, using his utmost effort to give all 
 the information he has or can by any reasonable means acquire, 
 as far as he is affected by the bill (d). The United States 
 Equity Rules have made some changes in this matter. Prior 
 to their adoption, the only exceptions to the rule seem to have 
 been the following: the defendant, instead of demurring or 
 pleading, could in his answer assign the following excuses 
 for failure to respond, viz., i), that the particular discovery 
 sought is wholly irrelevant^ immaterial, scandalous, or imperti- 
 nent (e); 2), that the particular discovery sought will .tend to 
 subject him to penalty, forfeiture, or punishment {/); 3), that 
 the disclosure would involve a- breach of professional confi- 
 dence (g); and 4), that the particular discovery sought is of 
 facts respecting his own title, and not respecting that of the 
 plaintiff (k). 
 
 To these may be added the statute of limitations, and the 
 defense of lapse of time, which are as effectually raised by 
 answer as by plea (i). But the language, "must answer fully'' 
 is to be understood with this qualification, that defendant is 
 not compelled to answer matters which are not well pleaded; 
 thus, to matters of law and inferences of law, he need not 
 
 (a) Story, Eq. Plead., Sec. 284a; 1 Daniel's Ch. PI. & Pr., p. 346 and notes 
 4 and 6; Labadie vs. Hewitt, 85 Ills., 341; Greenwood vs. Churchill, 1 M & K 
 559. (6) Story, Eq. Plead., Sec. 708. (c) Story, Eq. Plead., Sees. 846-847'; 
 Leigh vs. Birch, 32 Beav., 399 ; Financial Corporation vs. Railway, L. R., 3 Bq., 
 422. (d) Financial Corporation vs. Railway, L. R., 3 Eq., 422; Bank vs. Mes- 
 sereau, 7 Paige, 517. (e) Agar vs. Canal Co., Cooper, 212; Hardemann vs. Har- 
 ris, 7 How., 726. (/) Adams vs. Porter, 1 Gush., 171. g) Jones vs. Pugh, 12 
 Sim., 470. (h) Story, Eq. Plead., Sec. 846; but see 1 Gush., 171. (i) Norton vs, 
 Tnrvill, 2 P. Wms., 144; Maury vs. Mason, 8 Porter, 213; VanBCook vs. Whit- 
 lock, 7 Paige, 373; Story, Eq. Plead., Sees. 503, 751, and 847. ' 
 
OF ANSWERS. 61 
 
 answer. Matters ill pleaded, in equity, are ordinarily matters 
 wholly irrelevant and immaterial, but there may occasionally 
 arise cases of matter ill pleaded, which, if well pleaded, would 
 not be wholly irrelevant. 
 
 Further, no discovery can be required of an infant, or other 
 person under disability (a); nor can a public officer when sued 
 in his official capacity be required to make disclosure (b). 
 
 But the defendant could not by answer excuse himself from 
 making discovery on the following grounds: that plaintiff had 
 no right to equitable relief, or had no interest in the subject, 
 or that defendant had no interest in the subject, or is a pur- 
 chaser for valuable consideration, or that the bill does not 
 declare a purpose for which equity will assume jurisdiction to 
 compel discovery, or that plaintiff is under some disability. If 
 the defendant desired protection from making disclosure on 
 any of these grounds, he must take his objection by demurrer 
 or plea (c). If the defendant failed to answer sufficiently, 
 the plaintiff could then raise the question of insufficiency in a 
 manner to be described shortly. In addition to the above 
 matters, there seems to have been a single exception in the 
 case of a defendant who is a trustee or in the nature of a trustee. 
 Such a defendant, and only he, is permitted to state upon his 
 answer generally that he is a stranger to the several matters or 
 things in the bill mentioned, and can set forth no other or fur- 
 ther answer to the bill, either as to his knowledge, his belief, or 
 otherwise. In such a case, if it appear clearly that no benefit 
 would result to the plaintiff from requiring an answer as ordi- 
 narily to each charge, allegation, and interrogatory separately, 
 the answer will be treated as sufficient {d). In all other cases 
 for discovery a separate statement must be made by the de- 
 fendant to each requirement of the bill. General denials of a 
 number of statements are inadequate {e), and the court will 
 insist on the answer being full to every particular (/). De- 
 
 (a) Lucas vs. Lucas, 13 Ves., 274 ; 1 Daniel's Ch. PI. & Pr., 169; Foster, Fed. 
 Prac p 219; Micklethwaite vs. Atkinson, 1 Coll., 173. (6) Davison vs. Attorney 
 General, 5 Price, 398 ; U. S. vs. McLaughlin, 24. Fed. Rep., 823. (c) 1 Daniel's Ch. 
 PI & Pr., 720. (d) Story, Eq. Plead., Sec. 846a. (e) Story, Eq. Plead., Sec. 852. 
 (/) Story, Kq. Plead., Sec. 852; testimony of Mr. Bell before the Chancery Com- 
 missioners, answer to question 25, Story, Eq. Plead., Sec. 4,6, note 1 ; Foster, Fed- 
 eral Practice, page 227 ; U. S. Equity Rule, No. 64. 
 
62 OF ANSWERS. 
 
 fenses to a discovery which might be taken by plea, other than 
 those above excepted were not effective to protect the de- 
 fendant from making discovery, unless, taken by plea. They 
 could not bar discovery when taken by answer (a). Thus the 
 defense of I'ona fide purchaser if raised by plea would protect 
 the defendant from answering, but if raised by answer it would 
 be no bar to the discovery sought, but only to the rel'ief (U). 
 
 Such were the relations of answer and plea in the older 
 equity practice; but by the adoption of theU. S. Equity Rules, 
 Nos. 39 and 44 (c), the Federal practice has been largely 
 changed in this respect, and now, in the United States courts, 
 under these rules, a defendant may avail himself by answer of 
 any excuse for not answering that he may have, except only 
 such as are matters of abatement, or to the character of the 
 parties, or matters of form, and are not apparent on the face 
 of the bill. 
 
 In making discovery to the interrogatories the defendant 
 must answer specifically and categorically, distinguishing 
 between matters within his personal knowledge and those 
 within his information and belief. \i he asserts ignorance as 
 to any matter he must aver that he is ignorant both of his own 
 knowledge and as to information and belief {d); and if he 
 asserts ignorance of any matter presumptively within his 
 knowledge, or in which the bill charges that he was personally 
 engaged, it may be treated as an admission (^). To so much 
 of the bill as it is necessary for the defendant to make discovery, 
 he must speak directly and without evasion, and he must not 
 merely answer the several charges literally but he must confess 
 or traverse the substance of each charge (/). 
 
 In the Federal practice the plaintiff may waive an answer 
 under oath to the bill. In such case the answer becomes merely 
 a defensive pleading and in no way a disclosure?. Under such 
 circumstances of course the provisions for complete disclosure 
 do not apply. 
 
 The answer-should be entitled in the cause so as to agree 
 
 (a) story, Eq. Plead., Sec. 851. (ft) Stoi-y, Eq. Plead.,- Sees. 847 and 851. 
 fcj Ante, Lect. Ill, pages 54, and SS. (d) Brooks vs. Byam, 1 Story. 296. 
 (e) Mead ys. Day, 54, Miss., 58; Carey vs. Jones, 8 Ga., 516; and see Wheaton 
 vs, Briggs, 35 Minn., 4,70. (/) Story, Eq. Plead., Sec. 852, 
 
OF ANSWERS. 63 
 
 with the names of the parties as they appear in the bill at the 
 time the answer is filed. The answer should then begin sub- 
 stantially as follows: "The answer of A. B. one of the above 
 " named defendants to the bill of complaint of the above-nam- 
 " ed plaintiff." Next followed formerly a clause reserving to 
 the defendant any and all advantages that might be taken by 
 exception to the bill. This clause is useless and is frequently 
 omitted (a). 
 
 Then follows the substantive part of the answer, setting up 
 the matters of defense and making the requisite disclosure. 
 And the answer then concludes with a general traverse deny- 
 ing the general clause of combination and all other matters 
 contained in the bill. This clause is probably unnecessary in 
 an answer. Demurrer and plea in equity like demurrer and plea 
 at law admit everything that is not denied (d) but it is not so 
 with an answer. Failure in an answer to deny an allegation 
 does not operate as an admission of its truth so long as some 
 answer is made (c). A statement that defendant believes an 
 allegation to be true is equivalent to admission (d) but the 
 statement that the pleader has' no knowledge seems to be 
 equivalent to a denial, although if discovery has been required, 
 such an answer is subject to exception for insufficiency (e). 
 But it is a very wise and cautious practice to insert the general 
 denial in every answer. On the other hand the answer must 
 not contain either scandal, impertinence, or needless prolixity. 
 
 The answer when framed in accordance with the above 
 provisions must be signed by the person making it. If an an- 
 swer under oath has not been waived it must be sworn to be- 
 fore a proper ofificer (/). 
 
 An infant is a great favorite in a court of equity, and this 
 is perhaps nowhere better illustrated than by certain provisions 
 with regard to answering. We have seen how strenuously the 
 court insists on disclosure; but when an infant is called upon to 
 answer, it is usual for his guardian to file a mere general answer 
 
 (a) story, Eq. Plead., Sec. 870; Poster, Fed. Prac, p. 222. (61 Foster, Fed. 
 Prac Sec 106; Story, Eq. Plead., Sees. 452 and 694. (c) Brown vs. Pierce, 7 Wall., 
 205 211 ; Brooks vs. Byam, 1 Story. 296 ; Young vs. Grundy, 6 Cranch, 51; Kit- 
 tredge vs. Claremont Bank, 1 W. & M., 244 (d) Brooks vs. Byam, 1 Story, 296. 
 (el Brown vs. Pierce, 7 Wall., 205, 212. (/) U. S. Equity Rule, No. 59, as amend- 
 ed, Oct. Term, 1888, 129 U. S., 701. 
 
64 OF ANSWERS. 
 
 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, while the infant throws 
 himself on the protection of the court. And under such an 
 answer an infant is able to take advantage of almost every 
 defense. Still, if the infant has any substantive affirmative de- 
 fence, he should plead the same (a). 
 
 An example of an answer will be found in Barton's Suit in 
 Equity, on pages 97 and 98. 
 
 When the answer is framed, signed, and verified, it is filed 
 with the clerk of court. 
 
 The answer when thus filed is effectual in two different 
 ways, as defensive pleading, and as evidence. As defensive 
 pleading, it is effectual as far as its allegations entitle it to be. 
 It should however, be noted that ordinarily no affirmative relief 
 can be granted the defendant on his answer, either against the 
 plaintiff, or against another defendant. 
 
 But in two classes of cases such relief seems to be so 
 afforded. These are suits for an account, in which it finally ap- 
 pears that the balance is in favor of the defendant, and bills for 
 specific performance of contracts, where the parties differ as to 
 the terms of the contract, and the question is decided in defen- 
 dant's favor; in these cases, the court will give decrees, respec- 
 tively, for the sum found due the defendant, and for perform- 
 ance of the contract as established, without further pleading, on 
 defendant's part, than the answer (d). In other cases, if the 
 defendant desires affirmative relief against the plaintiff, or 
 against another defendant, his remedy is in general by a differ- 
 ent pleading which we shall consider shortly, viz., a cross-bill. 
 
 As an instrument of evidence, the answer is effective not 
 only in favor of the plaintiff, but also against him. Unless an 
 answer under oath is ^yaived in accordance with the provisions 
 of the United States rule, the sworn statement of the defendant 
 in direct response to an allegation of the bill, is deemed to be 
 true, unless contradicted by two witnesses, or by one witness 
 
 (a) Poster, Fed. Prae., p. 223. (6) Clarke vs. Tipping, 4 Beav., 588; 
 Campbell vs. Campbell, 4 Halst. Eq. (N. J.), 74,0; Fife vs. Clayton, 13 Ves., 546; 
 Bradford vs. Bank, 13 How., 57; Foster, Fed. PraC, Sec. 171; Story, Equity 
 Pleading, Sec, 394. 
 
OF ANSWERS. 65 
 
 and corroborating circumstances (a). There are however cer- 
 tain important limitations of this doctrine concerning the evi- 
 dentiary weight of the answer. An answer though under oath 
 is not evidence for the defendant, which must be so overcome, 
 in the following cases: 
 
 i). As to new averments or matters in avoidance or dis- 
 charge (d). 
 
 2). As to matters in respect to which the answer is absurd 
 or contradictory, or so sets forth the circumatances as to render 
 the allegations of the bill more probable (c). 
 
 3). When the answer is not direct, positive, and unequivo- 
 cal in its denials or explanations {d). 
 
 4). When the answer is on information and belief {e). 
 
 5). When the answer itself shows, or it is apparent from 
 the defendant's situation or condition, that, though the answer 
 is positive, yet defendant swears to matters of which he either 
 could not or did not have personal knowledge (/). 
 
 6). Where an answer on oath is discredited as to one 
 point, its effect as evidence' as to other points is impaired or 
 destroyed as the case may be {g). 
 
 7). Where the defendant in an answer upon oath professes 
 ignorance as to matters stated in the bill, his ignorance is, of 
 course, without evidentiary weight {h). But where such mat- 
 ters are presumably within the defendant's knowledge, or his 
 means of knowledge, and are so charged in the bill, such an- 
 swer of ignorance may be construed as an admission («'). 
 
 8). In the United States practice,"If the complainant, inhis 
 " bill, shall waive an answer under oath, or shall only require 
 " an answer under oath with regard to certain specified inter- 
 " rogatories, the answer of the defendant, though under oath, 
 " except such part thereof as shall be directly responsive to such 
 " interrogatories, shall not be evidence in his favor, unless the 
 
 (a) story, Eq. Plead., Sec. 849a. (6) Hart vs. TenEyck, 2 Johns. Ch., 62; 
 Seitz vs. Mitchell, 94 U. S., 580; Randall vs. Phillipps, 3 Mason, 378; N. B. Bank 
 vs. Lewis, 8 Pick., 113. (c) Ctinningham vs. Freeborn, 3 Paige, 557; East India 
 Co. vs. Donald, 9 Ves., 275. (d) Famam vs. Brooks, 9 Pick., 212, 230; LeNeve 
 vs. LeNeve, 1 Ves. Sr., 66. (e) Town vs. Needham, 3 Paige, 545; Atl. Ins. Co. vs. 
 Wilson, 5 E. I., 479. (/) Watson vs. Palmer, 5 Pike, 501 ; Fryrear vs. Lawrence, 
 5 Gilm., 325; Garrow vs. Carpenter, 1 Porter, 359; Lawrence vs. Lawrence, 4 
 Bibb, 357. (g) Forsyth vs. Clark, 3 Wend., 637. (ft) Brown vs. Pierce, 7 Wall., 
 205,211-212. (i) Mead vs. Day, 54 Miss., 58; Carey vs. Jones, 8 Ga., 516; and 
 sec also Wheaton vs. Briggs, 35 Minn., 470. 
 
66 OF ANSWERS. 
 
 " cause be set down for hearing on bill and answer only " (a). 
 A discussion of what circumstances will be deemed suffici- 
 ently corroborative of one witness, so that they will outweigh 
 an answer under oath, will be found in Story's Equity Plead- 
 ing, Sec. 849 a, notes and cases there cited. 
 
 "After an answer is put in, it may be amended as of course, 
 ' in any matter of form, or by filling up a blank, or correcting a 
 ' date, or reference to a document, or other small matter, and 
 ' be re-sworn at any time before a replication is put in or the 
 ' cause is set down 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 new 
 ' facts or defenses, or qualifying or altering the original state- 
 ' ments 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 affidavit. And in 
 ' every case where leave is so granted, the court or the judge 
 ' granting 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 there- 
 ' from" (6). But in general the courts are chary of allowing 
 a defendant to make any substantial amendments of his an- 
 swer. Permission to change the disclosure would give too 
 large an opportunity for false evidence in , many cases,' and 
 especially so after the testimony has been made known in the 
 case (c). 
 
 If any new matter is discovered by the defendant after 
 putting in the answer which existed at the time of an- 
 swering this should be set up by supplemental answer (d). 
 But if the defense am^ after defendant has filed his answer it 
 should be put in by a cross-bill in the nature of a plea puis 
 darrein continuance at law (^). 
 
 OF COMBINATION PLEADINGS. 
 
 As we have seen, a demurrer or a plea may run to but 
 part of a bill. A defendant may demur to one interrogatory, 
 plead to a second, and answer to a third. In everyca.se where 
 
 (a) U. S. Equity Rule, No, 41. (6) U. S. Equity Rule, No. 60. (c) Calloway vs. 
 Dobson, 1 Brock., 119 ; Smith ts. Babcock, 3 Sumn., 583. (d) Suydam ts. Trues- 
 dale, 6 McLean, 461 ; Talmage vs. Pell, 9 Paige, 413. W Fenton vs. Williams, 
 11 Paige, 18 ; post, page 68. 
 
OF COMBINATION PLEADINGS. 67 
 
 the defendant attacks but part of the bill by demurrer or 
 plea he must at the same time answer to the residue of the 
 bill; and such a pleading we may perhaps properly call a com- 
 bination pleading. We have seen, too, that courts of 
 equity are very .chary of allowing double pleas; but the rule 
 that a defendant cannot plead several matters must not be 
 understood as precluding a defendant from putting in several 
 pleas to different parts of the bill; it merely prohibits his 
 pleading, without previous leave, a double defense to the 
 whole bill or to one same portion of it. The defendant may 
 plead different matters to separate parts of the same bill, and 
 likewise may put in different demurrers to different parts pf 
 the same bill (a). And in such case only such portion of 
 the bill as is not covered by the several pleas and demurrers 
 need be answered, except in so far as in the case of impure 
 pleas the answer is auxiliary to the plea. In such cases if plea 
 or demurrer to part of the bill be overruled the defendant 
 must then complete his answer to the corresponding extent. 
 
 The provisions of the United States rules that no demurrer 
 or plea shall be held bad and overruled upon argument, only 
 because such demurrer or plea shall not cover so much of the 
 bill as it might by law have extended to (6), and that no de- 
 'murrer or plea shall be held bad and overruled upon argu- 
 ment, only because the answer of the defendant may extend to 
 some part of the same matter as may be covered by such de- 
 murrer or plea {c), are not so extensive as to permit one to 
 demur, plead, and answer to the same portion of a bill. Where 
 a plea and a demurrer are put into the same matter simultane- 
 ously the plea waives the demurrer and in the same way an 
 answer waives the protection of both plea and demurrer so 
 far as the answer extends (d). 
 
 In other respects these combination pleadings are suf- 
 ficiently described for our purpose by what has been said con- 
 cerning, demurrer, plea, and answer. In the United States 
 practice under Rule No. 39, it is simpler and easier to take ob- 
 
 (a) 1 Daniel's Ch. PI. & Pr., pages 584, & 610 (6) U. S. Equity Kule, No. 
 36 c) V. S. Equity Rule, No. 37. (d) Crescent City Co. vs. Butcher's Union 
 Co 12 Fed. Rep , 225 ; but see Hayes vs. Dayton, 18 Blatchf., 420. 
 
68 OF CROSS BILLS. 
 
 jections by answer when an answer is to be put in at all, conse- 
 quently the use of a plea or a demurrer to part of the bill in 
 conjunction with an answer to the rest of it is disappearing. 
 
 OF CROSS BILLS. 
 
 It frequently happens that a defendant in order to main- 
 tain his defense needs some discovery from the plaintiff or 
 some other defendant, or, in order to get the whole matter dis- 
 posed of needs some affirmative relief against the plaintiff or 
 some other defendant. Until very recent times no party to a 
 suit in equity could be examined as a witness. No discovery 
 could of course be obtained by means of demurrer, plea, or 
 answer. Likewise no affirmative relief could be obtained by 
 either demurrer or plea, and only in rare cases by answer (a). 
 Accordingly recourse had to be had to some other form of 
 pleading. The method adopted in equity was for a defendant 
 to institute a cross-proceeding in the same suit by a bill, which 
 differs 'from an original bill in no way except that it is brought 
 in a suit already begun. Such cross-bill would then have to be 
 demurred, plead, or answered to by those against whom it was 
 exhibited, and bill and cross-bill and all further steps thereon 
 would be dealt with as one proceeding and disposed of at one 
 hearing. 
 
 The cross-bill was used too, for one other purpose. If a 
 new defense arose after answer, or after the cause was at issue, it 
 could not be raised by demurrer, plea, or answer so it was rais- 
 ed by cross-bill which thus filled the place, on defendant's part, 
 of a plea puts darrein continuance {b). But if the matter arose 
 before answer and is discovered after answer it is not matter 
 for a cross-bill but for a supplemental answer {c). 
 
 "If the facts which a defendant wishes to set up destroy the 
 " plaintiff's apparent cause of action, they constitute a defense, 
 " and should be set up by answer or plea ; but if they only 
 " furnish a reason why the court should make a decree depriv- 
 " ing the plaintiff of his cause of action, they must be set up 
 
 (a) Ante, page 64. (b) Story, Eq. Plead., Sec. 393; Fenton vs. Wiliiams, 11 
 Paige, 18. (c) Ante, page 66, 
 
OF CROSS BILLS. 69 
 
 " by a cross-bill " («). For instance, if the plaintiff's rights 
 depend on a contract which is voidable, and not void, ordinarily 
 the defendant should set up the facts by cross-bill instead of 
 by answer {b). 
 
 "Where a defendant in equity files a cross-bill for discov- 
 " ery only against the plaintiff in the original bill, the defend- 
 " ant to the original bill shall first answer thereto before 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 restrictions as' the 
 " answer praying relief may now be read and used" {c). 
 
 Leave must be obtained before filing a cross-bill, or it may 
 be set aside {d). 
 
 A cross-bill is a mere auxiliary suit, and must deal only 
 with matters connected with the subject of the original bill {e). 
 No new parties can be brought in(/). The subpoena to answer 
 the cross-bill is sufficiently served on the attorneys for the 
 parties. And the cros.s-bill is so far a part of the original pro- 
 ceeding, that no objection to the jurisdiction of a United States 
 court can be taken on account of the altered positions of the 
 parties, if the parties were of such citizenship as to confer juris- 
 diction in the original bill {g); and in all equity courts the orig- 
 inal cause will not be heard till the cross-bill is answered, so that 
 the whole controversy maybe disposed of at once {h). If, after 
 the cross-bill is filed, the plaintiff dismiss the original bill, the 
 defendant is entitled to a decree pro confesso on the cross-bill {t). 
 
 A defendant is not ordinarily bound to seek affirmative 
 relief by cross-bill, unless ordered to do so by the court, but 
 may seek the relief desired by an independent bill (/^);.but 
 this, of course, does not apply to cases where the cross-bill 
 seeks discovery or relief solely for defense to the plaintiff's 
 demand, but only to cases where he seeks a more complete 
 adjudication and remedy. 
 
 (a) Langdell, Eq. Plead., Sec. 15S. (6) Ford ts. Douglas, 5 How., 143 : Ja- 
 cobs vs. Richards, 18 Beav., 300; but see Osborne vs. Barge, 30 Fed. Rep., 805 
 (c) U. S. Equity Rule, No. 72. (d) Bronson vs. R. R. Co., 2 Wall., 283. (e) Cross 
 vs. DeValle, 1 Wall., 5 ; Rubber Co. vs. Goodyear, 9 Wall., 807 ; Heath vs. Erie Ry , 
 9 Blatchf., 316; Putnam vs. New Albany, 4 Biss., 365. (/) Shields vs. Barrow, 
 17 How., 130. (g) Peay vs. Schenct, 1 Woolw., 175. (A) Young vs. Pott, 4 
 Wash., 521; Moore vs. Huntington, 17 Wall., 417. (i) Lowenstein vs. Ghdewell, 
 5 Dill., 325. (*;) Washburn vs. Scutt, 22 Fed. Rep., 710. 
 
70 OF REPLICATION AND OTHER REMEDIES. 
 
 A cross-bill may be filed at any time before final hearing, 
 and perhaps even thereafter, till final decree {a). 
 
 Between exceptions to the bill, demurrers, pleas, answers, 
 and cross-bills, the defendant is able to advance all such de- 
 fenses as he has. 
 
 OF REPLICATION AND OTHER REMEDIES OF THE PLAINTIFF. 
 
 Where a demurrer, plea, or answer is filed too late, or has 
 some irregularity in its form, such that it ought not to be 
 allowed to stand as a pleading, as, for instance, if a plea or de- 
 murrer is not accompanied by the necessary certificate of 
 counsel or affidavit of the party [b), or if an answer is filed by 
 a person not named as defendant in the bill (c), or is so evasive 
 as to be in fact no answer {d), the plaintiff may move that the 
 pleading be taken off the file. The application is "to take a 
 " certain paper, purporting to be a demurrer (plea, or answer, 
 " as the case may be) off the file." A further consideration of 
 the grounds for taking pleadings off the file will be found in 
 Foster's Federal Practice, Sections iig, 139, and 152. If the 
 pleading is taken off the file, this is done by an entry of an 
 order that it be so taken off, and the annexation of the order 
 to the pleading {e). By setting down the cause for hearing, 
 or filing a replication, filing exceptions, or taking any other 
 step in the cause, nearly all the defects which can be reached 
 by such a motion are waived (/). 
 
 In case of a demurrer, the only remaining step which the 
 plaintiff can take is to set it down for argument. As we have 
 seen, he must do this promptly, or his bill will be dismissed 
 {g). In the case of the answer, and more rarely in the case of 
 the plea, the defendant's pleading may contain matter imperti- 
 nent or scandalous. In such case the plaintiff may file excep- 
 tions for the scandal or impertinence, substantially as defend- 
 ant may to the bill {k). This remedy for scandal and 
 
 (a) Neal ts. Foster, 34 Fed. Rep., 496 ; Rogers vs. Riessnfer, 31 Fed. Rep. 592. 
 lb) U. S. Equity Rule, No. 31. (c) Putnam -vs. New Albany, 4 Biss., 365. 
 (d) Tomkin vs. Lethbridge, 9 Ves., 178, Smith ts. Serle, 14 Yes., 415. (e) Pos- 
 ter, Fed. Prac., Sec. 119. (/) Foster, Fed. Prac., Sees. 119, 139, and 151. 
 {g) Ante., Lecture III, page 47. (7i) Ante, Lecture, III, pages 45 and 46. 
 
OF REPLICATION AND OTHER REMEDIES. 71 
 
 impertinence must be pursued before any of those to be 
 mentioned, or mere impertinence will be waived, though it is 
 otherwise as to scandal (a). 
 
 An answer may further be defective as being "insufficient," 
 that is, as not answering fully the statements and allegations 
 of the bill. If a plaintiff conceives an answer to be insufficient, 
 he may take exceptions to it, in writing, signed by counsel, for 
 insufficiency. The exceptions must set out verbatim the parts 
 of the bill which plaintiff alleges are not sufficiently answered, 
 and the terms of the answer actually made to such parts of the 
 bill, that the court may see the facts ; and should conclude 
 with a prayer that the defendant may in such respects make 
 further and full answer to the bill (d). If the exceptions, or 
 any of them, are allowed, the defendant will be required to 
 supplement his answer by a further answer, as far as called for 
 by the allowance of the exceptions (c). And there are pro- 
 visions in the rules quite effectual for attaining this result (d). 
 There, also, will be found the provisions for the method of 
 procedure, by exceptions, for insufficiency (e). Such excep- 
 tions are waived by going to trial on the merits (/). 
 
 Where a defendant demurs or pleads to any part of the 
 discovery sought by a bill, and answers to the residue, the 
 plaintiff cannot take exceptions to the answer before the de- 
 murrer, or plea, has been disposed of. If he does, it will 
 have the effect of admitting the validity of the demurrer, or 
 plea; the foundation of this rule seems to be, that it is impos- 
 sible to determine whether the answer is sufficient or not, 
 unless the demurrer, or plea, is admitted to be good. But if the 
 demurrer, or plea, is only to the relief prayed by the bill, and 
 not to any part of the discovery, plaintiff may take exceptions 
 to the answer for insufficiency without any waiver (^). 
 
 If a plea, or demurrer, to the relief is filed without any 
 answer, plaintiff need take no exceptions, but the defendant, if 
 the plea, or demurrer, is overruled, will then have to answer as 
 
 (a) Ante, Lecture III, page 46; Anon, 2 Ves, Sr., 631; Patriotic Bank ts. 
 Bank of Washington, 5 Cranch, C. C, 602: Johnson vs. Tucker, 2 Tenn. Ch., 244. 
 (61 Story, Eq. Plead., Sec. 864 ; Brooks vs. Byam, 1 Story, 296, 398 ; Foster, Fed. 
 Prac, Sec. 153. (c) Foster, Fed. Prac, Sec. 153. (d) U. S. Equity Rule, No. 64. 
 (e) U.S. Equity Rules, Nos. 61, 62, 63. 64, and 65. (/) Kittredge vs. Race, 92 
 U. S. 116. (g) Story, Eq. Plead., Sec. 866. 
 
72 OF REPLICATION AND OTHER REMEDIES. 
 
 if no defense had been made. But, if an answer accompanies 
 the plea or demurrer to the relief, the plaintiff must, if he 
 deems the answer insufficient, except thereto (a). 
 
 The only pleading that plaintiff can interpose after plea or 
 answer, in the ordinary course of a suit, is a general replica- 
 tion. Amendments to the bill and bills not original are possi- 
 ble at almost any stage of the case, but they are not referred to 
 in this statement. 
 
 In ancient times the pleading went on after answer by 
 replication, rejoinder, surrejoinder, etc., etc., but these plead- 
 ings fell into disuse and the only one of them left is the general 
 replication. This is a formal pleading, ordinarily of considerable 
 verbiage, but consists substantially of a denial of every state- 
 ment in the answer, or plea, and is plaintiff's announcement of 
 his determination to stand or fall on the statement contained in 
 his bill. No evidence in avoidance can be given under the 
 general replication. It is simply a denial. And this is the 
 only other pleading. "No special replication to any answer 
 " shall be filed," say the rules (6). 
 
 The old and well established form of a general replication 
 is given in Barton's Suit in Equity, on pages io8 and 109 (c). 
 But a much simpler form will suffice (d). 
 
 If a special replication be filed pleading new matter, such 
 matter may be disregarded as surplusage {e). There can be 
 no departure in the replication from the statements of the 
 bill (/). If the plaintiff thinks he has stated the case cor- 
 rectly in the bill, including therein all matters in avoidance of 
 the defenses set up, his step is to file this general replication (g). 
 This must be done on or before the next succeeding rule- 
 day {k). If the plaintiff omits to do so the defendant is en- 
 titled 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 motion, for cause Shown, allow a repli- 
 cation to be filed nunc pro tunc (i). But the greatest liberality 
 
 Pet., 263. (9) U. S. Equity Kule, No. 66 (A) Id. (i) U. S. Equity Rule, No. 66 ; 
 Robinson ts. Satterlee, 3 Sawy., 134. 
 
OF REPLICATION AND OTHER REMEDIES. 73 
 
 is exercised in allowing replications to be filed nunc pro tunc (a). 
 And if the parties go on to take testimony without a replica- 
 tion being filed it will be deemed waived (d). And such an 
 objection will not be allowed to prevail if raised first on ap- 
 peal (c). The answer of every defendant must be replied to 
 without reference to the state of the cause or of the pleadings 
 in regard to any other defendant {d). 
 
 Since by the general replication no avoidance of the mat- 
 ter of the plea or answer can be set up, it is obvious that there 
 must be some other method of raising such defenses. The 
 means adopted therefor in the equity procedure is amendment 
 of the bill. As we have seen, the plaintiff by the charging part 
 of the bill seeks to anticipate and avoid the defenses which he 
 supposes the defendant will seek to interpose. After plea or 
 answer he can' of course do this with accuracy. Accordmgly 
 it is the regular method of procedure, when the defendant sets 
 up new matter which has not been anticipated in the bill and 
 which plaintiff desires to avoid, that plaintiff amend his bill by 
 charging the defense and setting up the matter avoiding it. 
 By the rule, "after an answer, plea, or demurrer is put in, and 
 " before replication, the plaintiff may upon motion or petition 
 " without notice, obtain an order from any judge of the court 
 " to amend his bill on or before the next succeeding rule-day, 
 " upon payment of costs, or without payment of costs as the 
 " court or a judge thereof may in his discretion direct" (e). 
 
 "If any matter alleged in the answer shall make it neces- 
 " sary i^or 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 this amendment may, if the plaintiff desires, consist in am- 
 plifying his interrogatories. If he thinks further interrogator- 
 ies will elicit valuable information, this is his opportunity. 
 And the plaintiff must keep in mind that he can recover 
 only secundum allegata et probata; and see to it that his bill cor- 
 rectly states the case. 
 
 (o) Peirce vs. West's Executors, Pet. C. C, 351; Fischer vs. Hayes 6 Fed. 
 
 Eeo 76 ; Tones vs. Brittan, 1 Woods, 667. (b) Reynolds ts. CrawfordsTille Bank, 
 112 U S, 4,05; Jones vs. Brittan, 1 Woods, 667; Fischer vs. Hayes, 6 Fed. Rep , 
 7R ii--\ Clements vs. Moore, 6 Wall., 299; Fretz vs. Stover, 22 Wall., 198. 
 \ai CoieminTs Martin, 6 Blatchf., 291. (e) U. S. Equity Rule, No. 29. (/) U. S. 
 Equity Rule, No, 45. 
 
74 OF REPLICATION AND OTHER REMEDIES. ' 
 
 "In every case where an amendment 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 ordei'ed by a judge of the court, 
 '• and upon his default the like proceedings may be had as in 
 " cases of an omission to put in an answer" (a). 
 
 After such further answer is perfected, the plaintiff might, 
 if the new answer made it necessary, with leave of court, amend 
 again; but ultimately he will come to filing his general repli- 
 cation, and the cause is then at issue (b). 
 
 One other result is possible, namely that the plaintiff come 
 to the conclusion that, upon the bill and answer, adopting the 
 statements of the answer as true, he is entitled to the relief he 
 seeks. In such case, plaintiff, without filing a replication, may 
 set down the suit for hearing on bill and answer only. This 
 proceeding is substantially like a general demurrer at law. In 
 such case, the answer is also evidence for the defendant, even 
 though an answer under oath is waived (c), subject to the first 
 seven restrictions set out above, on page 65. 
 
 "After replication, or such setting down for a hearing, it 
 " (the answer) shall not be amended in any material matters, 
 " as by adding new facts or defenses, or qualifying or alte'ring 
 " the original statements, except by 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 affidavit. And 
 " in every case where leave is so granted, the court or the 
 ^' judge granting 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" (d). 
 
 Of course, if a material amendment is made, plaintiff is at 
 liberty to attack the answer as amended by the above 
 methods. 
 
 Ordinarily after replication the plaintiff's right to amend 
 
 (a) U. S. Equity Rule, No. 46. (6) U. S. Equity Rule, No. 66. (c) U. S. 
 Equity Rule, No. 41, as amended May 6, 1872, 13 Wall, xi. (d) U. S. Equity 
 Rule, No 60. ■' 
 
OF REPLICATION AND OTHER REMEDIES. 75 
 
 his bill is gone, except for making new parties, but the court 
 may grant special permission, on cause shown, to withdraw the 
 replication, and amend the bill (a), or even allow the bill to be 
 amended at the hearing (d). 
 
 But ordinarily the cause is completely at issue when the 
 replication is in (c). 
 
 (a) Story, Eq. Plead., Sees. 887, 888, and 889 ; U. S. Equity Eule, No. 29. 
 (6) Neale vs. Neales, 9 Wall., 1,8; Battle vs. Mutual Life Insurance Co., 10 
 Blatchf., 418, (c) U. S. Equity Rule, No. 66. 
 
LECTURE V. 
 OF TRIALS AND OF DECREES. 
 
 As we saw, in the first lecture, the forms of procedure in 
 equity were to a great extent affected by the familiarity of the 
 ecclesiastics, who held the seal, with Roman law and proced- 
 ure (a). In few respects was this more apparent then in the 
 method of conducting trials in equity. At the common law, 
 the witnesses were examined orally in open court, in the pres- 
 ence of judge and jury, of parties, attorneys, and spectators, at 
 the time of the hearing and determination of the case. In 
 equity the procedure was as different as could well be imag- 
 ined. The witness was examined by an officer of the court, in 
 private, no one of the parties or of their solicitors being allowed 
 to be present, on written interrogatories and cross-interrogato- 
 ries, all carefully prepared by one side and the other, and de- 
 livered to the examining officer before the examination of the 
 witness began. Not only was the examination of the witness 
 conducted in private, but his testimony when given was kept 
 secret until all the evidence in the case was in, when publica- 
 tion was passed, and the contents of the examiner's report 
 made known. And all this was done long before the hearing 
 of this cause. 
 
 This method of procedure is regulated by the United 
 States Equity rules as follows: 
 
 "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 read in evidence at the 
 " hearing" (3). 
 
 "After the cause is at issue, comm.issions to take testimony 
 " may be taken out in vacation, as well as in term, jointly by 
 
 (a) Ante, Lect. I., page 10. (6) U. S. Equity Rule, No. 69. 
 
OF TRIALS AND OF DECREES. 77 
 
 " both parties, or severally by either party, upon interrogato- 
 ■■ ries filed by the party taking out the same in the clerk's 
 " office, ten days notice thereof being given to the adverse 
 " 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 [a). 
 
 The commissioner, or commissioners, are named by the 
 court, or judge, but, under an amendment of the rule, the pre- 
 siding judge may give the clerk general power to name com- 
 missioners to take testimony (5). 
 
 In drawing up the interrogatories to be propounded to a 
 witness, one is at liberty, of course, to frame his questions to 
 suit himself, but interrogatories are to be perused and. signed 
 by counsel, who thereby make themselves responsible for the 
 propriety of the interrogatories. The original interrogatories 
 (those put by the party calling the witness), however, conclude 
 ordinarily with the general interrogatory, which is as follows: 
 "Do you know, or can you set forth any other matter, or thing, 
 " which may be a benefit 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 ques- 
 " tion in this cause? If yea, set forth the same fully and at 
 " large in your answer" (c). This interrogatory must be an- 
 swered, or the deposition is fatally defective {d). It has, how- 
 ever, been held in England, under a rule like that just cited, 
 that it is not necessary to append this interrogatory {e). 
 
 Interrogatories must be short and pertinent, and must not 
 be leading. Leading questions are such as instruct the witness 
 how to answer on material points, or which, embodying a ma- 
 terial fact, admit of an answer by a simple negative or affirma- 
 tive (/). If the questions are leading, the deposition taken 
 thereon may be suppressed by the court. But in some cases, 
 leading questions are permitted, and are proper on direct exam- 
 ination. The principal of these cases are the following: where 
 the witness appears to be hostile to the party calling him, or to 
 
 (a) U, S. Equity Rule, No. 67. (6) U. S. Equity Rule, No. 67. (c) U.S. Equity 
 Rule, No. 71. (d) Richardson vs. Golden, 3 Wash., CC. 109 ; Dodge vs Israel, 4 
 Wasii C. C, 323. (e) Cover vs. Lucas, 8 Sim., 200. (/) 1 Daniels, Ch. PI. & 
 Pr., 921. 
 
78 OF TRIALS AND OF DECREES. 
 
 be acting in the interest of the other party, or to be reluctant or 
 unwilling to give his evidence; or where an omission in his 
 testimony is caused by a want of recollection, which a sugges- 
 tion may assist; or where, from the nature of the case, the 
 mind of the witness cannot be directed to the subject of the in- 
 quiry without a particular specification of it. It should be ob- 
 served that questions which are merely introductory of the 
 general subject are not ordinarily liable to objection as leading 
 (a). When, and under what circumstances a leading question 
 may be put to one's own witness, lies largely in the discretion 
 of the trial court. Cross-interrogatories are not ordinarily 
 subject to objection as leading, but if a witness appear strong- 
 ly interested in favor of the cross-examining party, it has 
 been held that it lies in the discretion of the court to exclude 
 leading questions put on cross-examination, and the answers 
 thereto {d). 
 
 Interrogatories like all other proceedings in equity are 
 subject to reference for scandal, though they cannot be referred 
 for mere impertinence (c). 
 
 The examiner then examines the witness (deponent) to 
 the interrogatories seriatim, explaining the questions to the 
 witness as he proceeds, if necessary. The examiner may not 
 permit the witness "to read over, or hear read any other inter- 
 " rogatories until that in hand be fully finished; much less is he 
 " to suffer the deponent to have the interrogatories, and pen his 
 " own depositions, or depart after he hath heard an interrogatory 
 " read over, until he hath perfected his examination thereto"(^). 
 The answers are written down as given, and at the conclusion 
 of the examination, the witness subscribes his testimony after 
 it has been read over to him. After the testimony of all the 
 witnesses to come before him has been taken, the examiner 
 returns the testimony taken before him under seal to the 
 clerk of court, where it remains under seal until publication 
 passes. 
 
 When the examination of witnesses on both sides is ended, 
 
 (a) 1 Daniel's Ch. PI. & Pr., 921. (6) Moody vs. Eo-well, 17 Pick., 490, 498. 
 (c) Cocks TS. ■Worthington, 2 Atk., 236; White ts. FusseU, 19 Ves., 113. (d) 
 Beatnes, Ord., 188 ; Ketland -vs. Bissett, 1 Wash., C. C ■• 
 
OF TRIALS AND OF DECREES. 79 
 
 either party serves the other with an order of court importing 
 that the depositions will be made public, unless sufficient 
 cause is shown to the contrary, within a time therein expressed. 
 If no cause is shown, the order is made absolute, and the testi- 
 mony made public. This is termed passing publication, and 
 absolves the examiner from his oath of secrecy («). 
 
 The three months allowed by the United States rule begins 
 to run when the issues are joined with all the defendants {d), 
 and is for taking the testimony on the part of both plaintiffs 
 and defendants (^r), as, under this system of taking evidence, 
 there is no advantage in calling on one party to produce his 
 evidence before the other party. Usually after publication no 
 new witness can be examined or new evidence taken except 
 in special cases, on cause shown, such as accident, surprise, or 
 fraud (d); but the court has a discretionary power to allow 
 proofs to be put in after time (e). And the court has the power 
 to take the testimony of witnesses in open court (/), and this 
 power is not infrequently exercised for the purpose of proving 
 the genuineness of exhibits referred to in the bill and answer 
 
 In the Federal practice there are a number of permissive 
 modifications of this method of taking the evidence (k). One 
 of these has, with the advent of the stenographer and type- 
 writer, and the tendencies toward unification of legal and 
 equitable remedies, become the common mode of taking testi- 
 mony in equity. By the rule (i), "Either party may give notice 
 " to the other that he desires the evidence to be adduced in the 
 " cause to be taken orally, and thereupon all the witnesses to 
 " be examined shall be examined before one of the examiners 
 " of the court, or before an examiner to be specially appointed 
 " by the court, the examiner to be furnished with a copy of the 
 " bill and answer, if any; and such examination shall take 
 " place in the presence of the parties or their agents, by their 
 " counsel or solicitors, and the witnesses shall be subject to 
 
 (a) Barton's Suit in Equity, 114; see U.S. Equity Rule, No. 69. (b) Gilbert 
 vs VanArraan, 1 Flippin, 421 ; but see Coleman vs. Martin, 6 Blatchf., 291. 
 fcf Inele vs. Tones, 9 Wall., 486. (d) Wood vs. Mann, 2 Sumn., 316, (e) Fischer 
 v-= Hayes, 6Fed. Rep., 76 (/) In re Clarke, 9 Blatchf., 372. (g) Barton's Suit 
 in Equity, 116. (ft) U. S. Equity Rule, No. 67. as amended, 17 How., ix; 1 Black, 
 VI 9WalI.. vii;U S, Rev. Stats., Sees, 863-873. (i) No, 67, as amended. 
 
80 OF TRIALS AND OF DECREES. 
 
 " cross-examination and re-examination, and which shall be 
 " conducted as near as may be in the mode now used in common 
 " law courts. The depositions taken upon such oral examina- 
 " tion shall be taken down in writing by the examiner in the 
 " form of narrative, unless he determines the examination 
 " shall be by question and answer in special instances; and 
 " when completed shall be read over to the witness and signed 
 " by him in the presence of the parties or counsel, or such of 
 " them as may attend; provided, if the witness shall refuse to 
 " sign the said deposition then the examiner shall sign the 
 " same; and the examiner may upon all examinations 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, materiality, or 
 " relevancy of the questions; and the court shall have power 
 " to deal with the costs of incompetent, immaterial, or irrele- 
 " vant depositions, or parts of them, as may be just." "Notice 
 " 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 
 " witnesses before the examiner is concluded, the original 
 " deposition, authenticated by the signature of the examiner, 
 " shall be transmitted by him to the clerk of the court, to be 
 " there filed" {a). 
 
 Under this method it was soon obvious that it was impor- 
 tant to have the plaintiff first take his evidence, and then give 
 the defendant time to take his evidence in defense, leaving a 
 time thereafter for plaintiff to take his evidence in reply. 
 Accordingly, in 1869, it was provided that, when the evidence 
 is taken in accordance with these provisions, "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 
 
 (a) U. S. Equity Rule, No. 67, as amended. 
 
OF TRIALS AND OF DECREES. 81 
 
 " the complainant shall take his evidence in reply; and no 
 " further evidence shall be taken in the cause unless by agree- 
 " ment of the parties, or by leave of court first obtained on 
 " motion for cause shown" (a). 
 
 It will be observed that there is no opportunity in any of 
 these methods of procedure for obtaining any ruling on the 
 competency, relevancy, or materiality of the testimony sought. 
 Such questions are all reserved till the hearing when they are 
 passed on by the court. And when the questions are merely 
 of competency, materiality, and relevancy, this method of rais- 
 ing the question is sufficient, in view of the court's power of 
 imposing costs for improper cumbering of the record. But, 
 where the question is one of privilege not to make disclosure, 
 the whole benefit of the privilege might be lost if one had to 
 make the disclosure before the examiner. Accordingly a dif- 
 ferent remedy exists for such cases, namely a demurrer by the 
 witness to the interrogatory, if the privilege is that of the wit- 
 ness (d), or, where the privilege is that of the party to have the 
 witness maintain silence concerning matters coming to him in 
 professional confidence, the remedy is to move the court to 
 refer it to a master in chancery to inquire and make a re- 
 port thereon, and upon the report to suppress the depo- 
 sitions (c). Such a demurrer by a witness to the inter- 
 rogatories is not, like a demurrer to a pleading, an objection 
 arising solely on the facts appearing upon the record, but is a 
 statement of the facts upon which the witness relies as 
 the ground of his objection (d). The grounds on which 
 a witness may so object, are similar to those on which a party 
 might, under the old practice, decline by answer, to make dis- 
 covery to the interrogatories in the bill (e). They are princi- 
 pally: i), that by disclosing, the witness may expose himself to 
 a penalty or forfeiture; 2), that a disclosure may lead to a de- 
 cree against the witness; 3), that the witness cannot answer 
 without a breach of professional confidence. It has been 
 claimed that such a demurrer may lie on the ground that the 
 
 (a) Amendment to U. S. Equity Rule, No. 67, of Dec Term, 1869, 9 Wall., v.i. 
 ih) Windervs. Diffenderfer, 2 Bland., 166. (c) Sandford vs. Eemmgton, 2 Yes. Jr., 
 189. (d) 1 Daniel's Ch. PI., & Pr., 942. (e) Ante, Lect. IV, page 60. 
 
83 OF TRIALS AND OF DECREES. 
 
 matter sought is impertinent, but the rule seems to extend only 
 to scandalous matter (a). 
 
 When the witness so demurs to an interrogatory, the exam- 
 iner has no power to pass on the objection. In a common law 
 court, a witness' objection on such a ground is passed on at 
 once by the court, the matter is to be passed on in equity in a 
 substantially similar way. The examiner reduces the objection 
 to writing, and with it the facts on which the witness bases his 
 objection; these are verified by the oath of the witness. Then 
 if the party propounding the interrogatory, desires an answer, 
 he must bring the demurrer on for argument, or he will be 
 deemed to have waived his question (3). 
 
 A proceeding substantially similar, obtains under the code 
 practice in similar cases (c). 
 
 The depositions being published, they should be exam- 
 ined with care, to see if any ground exists for suppressing 
 them. The ordinary grounds for suppression are that the 
 interrogatories are leading, or that the depositions are' scan- 
 dalous, or that the proceedings have been improperly taken. 
 
 Where the depositions are taken orally, the objections to 
 questions are made before the examiner, and embodied in his 
 report, and argued before the court at the hearing. If the 
 objection does not raise a question of privilege proper for 
 demurrer by the witness, the answer is taken, subject to the 
 objection; and question, objection, and answer are all reported 
 to the court, and are disposed of ordinarily at the final hearing. 
 
 Publication having passed, and the depositions having 
 been examined by the parties, the next step, in some of the 
 districts (including Minnesota) is to have the bill, answer, 
 replication, and evidence printed for the use of the court. 
 The provisions of the rules are comparatively strict, and must 
 be followed with care. 
 
 The next step is to set the cause down for hearing. The 
 setting down for hearing is done in the clerk's office, and the 
 parties are bound to take notice of it, and appear at the term 
 
 (a) Ashton vs. Ashton, 1 Yern., 165 ; Mulgrave vs. Dunbar, 2 Swanst., 198. n. 
 (ft) Mowatt vs.Graham.l Edw, Ch., 13; In reShotwell,43 Mm»,,389. (c) In re 
 SUotwell, 4,3 Minn., 389. 
 
OF TRIALS AND OF DECREES. 83 
 
 and time appointed for the hearing (a). Thereupon the case 
 comes, ordinarily for the first time, before the judge who is to 
 decide it. In one way and another, many troublesome matters 
 have been eliminated, and everything has as far as possible 
 been prepared, so that the judge may determine the con- 
 troversy with as little trouble as possible. 
 
 The parties appear by their counsel when the case is 
 called, and the case is then opened by the plaintiff; the case is 
 argued by his counsel, on the pleadings and evicjence before 
 the court. The defendant then presents his views of the case, 
 and the plaintiff replies. This ends the presentation of the 
 cause to the court, with whom it now rests, to determine the 
 facts and pronounce the judgment of the law thereon, or, in 
 other words, to make its decree. 
 
 It not infrequently happens that a question of fact will be 
 disputed with great strenuousness on one part and the other, 
 and the evidence thereto will be of such a character that the 
 court will hesitate to determine the fact. For most purposes 
 a single judge, of fair capacity and having well-trained powers, 
 is a far better tribunal than a numerous jury of persons un- 
 trained in the law. But for some purposes a jury is far better 
 adapted than a judge to give a just decision. This is true pre- 
 eminently in cases where the evidence, pro and con, is very 
 evenly balanced. In such cases a judge frequently hesitates 
 to decide the question of veracity between the parties, or of 
 the relative accuracy and credibility of the witnesses, and 
 chancery judges have frequently called in juries to their aid in 
 such case. But no jury ever sits in a court of chancery, so re- 
 course was had to feigned issues. The parties, under the di- 
 rection of the court, would draw up pleadings in a feigned law 
 action in such a way as to evolve as an issue in the action the 
 question of which decision was sought. Thereupon, such 
 feigned issue would be brought to trial at the bar of the law 
 court, before a law judge and jury. And the determination by 
 the jury would ordinarily be adopted by the equity judge as 
 the true state of the facts, though the chancellor is under 
 
 (a) Barton's Suit in Equity, 133. 
 
84 or TRIALS AND OF DECREES. 
 
 no conclusive obligation to adopt the finding of the jury. 
 This method, somewhat simplified, still obtains under the code 
 
 («)• 
 
 OF DECREES. 
 
 "A decree is a sentence or order of the court, pronounced 
 " on hearing and understanding all the points in issue, and de- 
 " termining the right of all the parties to the suit, according to 
 ■• equity an^ good conscience. It is either interlocutory or 
 " final. An interlocutory decree is: when the consideration of 
 " the particular question to be determined, or the further 
 " consideration of the cause, generally, is reserved till a future 
 " hearing. The further hearing is then termed a hearing upon 
 " further consideration, or upon the equity reserved. It seldom 
 " happens that a first decree can be final, or conclude the 
 " cause" {b). 
 
 "When a decree does not adjourn the consideration of the 
 " cause, it is said to be a 'final decree' " (c). 
 
 A very common instance of an interlocutory decree is the 
 decree of sale on foreclosure of a mortgage. The litigation is 
 substantially terminated by the decree that a sale be had, but 
 such a decree is not final, there still remains the sale, which 
 must be confirmed by the court, and the rendering of judgment 
 for a deficiency {d) 
 
 Care, however, must be taken not to confuse the term 
 "final decree" as it it is here used and the peculiar use of that 
 term in construing the statutes allowing appeals from "final 
 decrees." A decree is frequently so far final as to permit an 
 appeal therefrom as a final decree, when it by no means termi- 
 nates the proceeding {e), 
 
 Decrees, in general, consist of four parts: i), the date 
 and. the title of the cause; 2), the recitals; 3), the declaratory 
 part (if any); and, 4), the mandatory part. 
 
 i). The decree commenced with a statement of the name 
 
 (a) Gen. Stat. (Minn.,) 1878, Cap. 66, Sec. 217. Under the Equity practice, 
 too, in divorce cases a jury -was frequently had. But divorce cases rarely, if ever, 
 come up in the United States courts, and in the different states divorce procedure is 
 regulated almost entirely by statute. Of. Gen. Stat., (Minn.,) 1878, Cap. 66, Sec. 
 216. (6) 2 Daniel's Ch. PI. & Pr., pp. 986-987. (c) Id., p. 99.1. (d) U. S. Equity 
 Rule, No. 92. (e) Porgay vs. Conrad, 6 How., 203 4 Jones vs. Wilson, 54 Ala., 50; 
 Whiting vs. Bank of D. S., 13 Pet., 15 ; Bronson vs. R. R. Co., 2 Black, 524. 
 
OF TRIALS AND OF DECREES. 85 
 
 of the court, of the date of rendering the decree, and of the 
 names of the parties, who are to be described as in the bill. 
 
 2). Then followed formerly the recitals. Herein were 
 
 formerly set out the pleadings in extenso, also the ordering part 
 
 of any previous decree, and any report made thereon. And it 
 
 was only as these papers became part of the decree that they 
 
 became part of the record. But by the United States rules: 
 
 ' in drawing up decrees and orders, neither the bill, nor an- 
 
 ' swer, nor other pleadings, nor any part thereof, nor the report 
 
 ' of any master, nor any other prior proceeding shall be 
 
 ' recited, or stated, in the decree or order; but the decree and 
 
 ' order shall begin, in substance, as follows: 'This cause came 
 
 ' ' on to be heard (or to be further heard, as the case may be) 
 
 ' 'at this term, and was argued by counsel; and thereupon, 
 
 ' "upon consideration thereof, it was ordered, adjudged, and 
 
 ' ' decreed as follows, viz.:' (Here insert the decree or order.)" 
 
 {a). 
 
 Under this rule, the court does not ordinarily insert in the 
 decree its findings of fact, but it may do so (b). In conse- 
 quence of this distinction in the form of the decree, there is an 
 apparent difference in the scope of a bill of review. In the 
 English practice, a bill of review lies for errors apparent on the 
 face of the decree. In the Federal practice, the bill of review 
 lies for errors apparent on the face of the bill, answer, and 
 other pleadings, and decree, which constitute what is properly 
 the record, in the United States courts of equity; so that the 
 difference is only apparent, and not real (c). 
 
 3). The next part of a decree is the declaratory part. It 
 often happens that an important part of the relief sought by a 
 bill is a mere declaration of rights, and not an enforcement 
 thereof. Thus we have suits by trustees for the construction 
 oi instruments. Any such declaration is here set forth. 
 
 4). The fourth part of the decree is the ordering or man- 
 datory part, which contains the directions of the court upon 
 the matter before it. "Nothing is more elastic and less arbi- 
 " trary than this part of a decree in equity. The directions to 
 
 (a) U. S. Equity Rule, No. 86. fft) Whiting vs. Bank of U. S., 13 Pet., 5, 14,; 
 Putnam vs. Day, 22 Wall., 60, 67. (c) Whiting vs. Bank of U. S., 13 Pet., 5, 14. 
 
86 OF TRIALS AND OF DECREES. 
 
 " the different parties may be separate, reciprocal, direct, or 
 " inverted, as long as they are not inconsistent" (a). 
 
 "Clerical mistakes in decrees, or decretal orders, or errors 
 " arising from any accidental slip or omission, may at any time 
 " before an actual enrollment thereof be corrected by order of 
 " the court or a judge thereof, upon petition,, without the form 
 " or expense of a rehearing" (d) 
 
 A decree can regularly be entered only during a term of 
 the court, but the court has power to allow a decree to be 
 entered even in vacation as of a previous term, nunc pro tzmc, 
 and will ordinarily exercise that power if delay has been due 
 to the inadvertence or neglect of the court or one of its 
 officers (c). 
 
 Decrees are enforced by courts of equity in ordinary cases 
 by some of the following five means: i), by writ of execution; 
 2), by attachment; 3), by writ of sequestration; 4), by writ of 
 assistance, and, 5), by the action of the court itself through 
 the medium of a master or receiver. By these various methods 
 and the special writs at its command a court of equity is amply 
 able to see its directions obeyed {d). 
 
 Where a party to a suit feels himself aggrieved by a final 
 decree of the court, there are open to him numerous ways in 
 which he may apply to have the decree reversed, set aside or 
 varied. As we have just seen he may petition before actual 
 enrollment for correction of a clerical or accidental error (e). 
 
 Secondly, he may petition for a rehearing. This is the 
 proper method of correcting in a decree before enrollment er- 
 rors therein which are not clearly clerical or accidental (/). 
 " Every petition for a rehearing shall contain the special matter 
 " or cause on which such rehearing is applied for, shall be signed 
 " by counsel, and the facts therein stated, if not apparent on 
 " the record, shall be verified by the oath of the party, or by 
 " some other person. No rehearing shall be granted after the 
 
 (a) Foster, Fed. Prac, Sec. 325. (b) U. S. Equitv Rule, No. 85. (c) Camp- 
 bell vs. Mesier, 4 Johns' Ch., 334; Bank of United States vs. Weisiger, 2 Pet., 481 , 
 Vroom vs. Ditmas, 5 Paige, 528 ; Emery vs, Parrott, 107 Mass., 104; Foster vs. 
 Woodfin, 65 N. C, 29; 2 Daniel's Ch. PI. & Pr., 1016, note 7. (d) For a discus- 
 sion of these means of enforcement of a decree see Foster, Fed. Prac Cap. 26 ; and 
 2 Daniel's Ch. PI. & Pr., 1042-1070. (e) U, S. Equity Rule, No. 85. (/) Poster, 
 Fed. Pr., Sec. 352. 
 
OF TRIALS AND OF DECREES. 87 
 
 " time at which the final decree of the court shall have been 
 " entered and recorded, if an appeal lies to the Supreme court. 
 " But if no appeal lies, the petition may be admitted at any 
 " term before the end of the next term of the court, in the 
 " discretion of the court" (a). 
 
 Rehearings are discretionary with the court (d) and are 
 allowed only where some plain mistake or omission has been 
 made (c) and not ex parte, but only on notice {d). If a rehear- 
 ing be granted the cause or matter is heard again as if for the 
 first time. 
 
 Thirdly, there is open to him the remedy by bill of review, 
 orbill in the nature thereof, or a supplemental bill in the nature 
 thereof, In order to maintain such a bill the party must 
 ordinarily have performed the decree, but under certain cir- 
 cumstances this may be dispensed with (£■). 
 
 Fourthly, the aggrieved party may bring a bill to set aside 
 the decree on the ground of fraud, accident, or surprise (/). 
 
 Fifthly, he may file a bill to suspend or avoid the operation 
 of the decree i^g). 
 
 And, sixthly, he may, in many cases, appeal. The provi- 
 sions regarding the right of appeal in the Federal courts will 
 be found in the United States statutes. When an appeal is 
 taken in equity from a whole decree the cause is ordinarily 
 reheard and the cause proceeded with in the appellate court 
 exactly as if it were an original hearing {h). 
 
 Before leaving our subject one further matter, which is, per- 
 haps, not in strictness a part of our subject, may be spoken of 
 that you may see how under the old practice equity was able 
 to prevent injustice through the strictness of the law. I allude 
 to the method by which a defendant in an action at law might 
 avail himself of an equitable defense. 
 
 In the law courts, legal rights set up by plaintiff must be 
 met in the same action by legal rights set up by defendant. 
 
 (a) U. S. Equity Rule, No. 88. (ft) Daniel vs. Mitchell, 1 Story, 198; Ameri- 
 can etc. Co., vs. Sheldon, 18 Blatchf., 50; Eoemer ts. Bernheim, 133 U.S., 103, 106. 
 (c) Jenkins vs. Eldredge, 3 Story, 299. (d) Giant Powder Co. vs. Cal.V. P Co., 6 
 Sawy., 531; S. C, 5 Fed. Rep., 199. (e) For a discussion of these bills see Poster, 
 Fed. Prac, Sees. 353-357 and Story, Equity Plead., Sees. 403-425. (/) Stevens vs. 
 Guppy, 1 Turn. & Euss., 178; Story, Eq. Plead., 426-428. (9) Story, Eq. Plead., 
 Sec. 428 a. (ft) Durfcee vs. Stringham, 8 Wis., 1 ; Perkins vs. Foumiquet, 6 How., 
 206 ; Barton's Suit in Equity, p. 162 ; U. S. Rev. Stat., Sec. 698. 
 
88 OF TRIALS AND OF DECREES. 
 
 If defendant had an equity which, when worked out, would de- 
 feat the plaintiff's recovery, his mode of redress was to com- 
 mence an independent suit in chancery, by which he might 
 enforce his equity, in some cases by getting it transformed into 
 a legal right, of which he might avail himself as a defense in 
 the action at law; in others, by getting a permanent injunction 
 against the prosecution of the legal action ; further steps by 
 the plaintiff in the law action being meanwhile stayed, by an 
 injunction on him, issued in the chancery suit. A familiar case 
 will illustrate this clearly. A has entered into a contract with 
 B for the purchase of a tract of land. A has paid the full pur- 
 chase price, and has gone into possession of the land, but has 
 neglected to get his deed from B, though fully entitled to it. 
 B then brings ejectment against A. A has no legal defense to 
 this action at law. His equitable title, his right to have a legal 
 title is not recognized by the court of law. In this state of 
 affairs, he brings an equitable suit against B, praying that B 
 may be compelled to convey to him (A) the legal title to the 
 tract, and that, pending the suit in equity, B be enjoined from 
 further proceeding at law. Upon an equitable decree, compel- 
 ling B to convey to A, and its execution, A can come back into 
 the law court with his chancery-acquired legal title, and suc- 
 cessfully defend against the legal action of B. In some cases 
 it might be impossible to get the relief of a conveyance of the 
 legal title. In such cases a permanent injunction preventing 
 B's asserting his legal title, though a less full and complete 
 remedy, would, nevertheless, suffice to prevent a recovery by 
 B in the law action. 
 
 By this method, the equitable system so far supplemented 
 the legal system, as to prevent the working of injustice through 
 the failure to recognize equities at law. 
 
 In this very brief sketch of Equity Pleading and Procedure 
 much that is of great importance has been allowed to go 
 without mention; while concerning the matters chiefly brought 
 to your attention but very little has been said, and in no direc- 
 tion has anything more than a bare outline been attempted. 
 
 We must here close our brief sketch of this subject. 
 
OF TRIALS AND OF DECREES. 89 
 
 As said by Mr. Justice Story : " Upon a careful re- 
 " view of the whole subject the attentive reader will perceive 
 " that the task of mastering so complicated a science will 
 " require from him the employment of many hours of deep 
 " study, of laborious research, and of undivided diligence. He 
 " must give his days and his nights to it with an earnest and 
 " unflinching devotion. But the rewards will amply repay his 
 " toil. He who has attained a thorough knowledge of equity 
 " pleadings cannot fail to have become a great equity lawyer. 
 " He need not shrink from the most difficult and complicated 
 " engagements of his profession. Nay, he wiil find, that while 
 " many others are willing to rely on their own genius, with a 
 " rash and delusive self-complacency, to carry them through 
 " the intricacies of a controverted suit, he may far more ju.stly 
 " and safely repose on a solid learning, which will secure 
 " respect, and a trained and varied discipline, which will.com- 
 " mand confidence. To no human science better than to thp 
 " law can be applied the precepts of sacred wisdom in regard 
 " to zeal and constancy in the search for truth. Here the racp 
 " may not be to the swift ; but assuredly the battle will be to 
 " the strong" (a). 
 
 (a) story, Eq. Plead., Sec. 906. 
 
ERRATUM. 
 
 Attention should have been called in the first lectufe 
 (page ig) to the United States Equity Rule No. 48, which is as 
 follows: 
 
 "Where the parties on either side are very numerous, and 
 " cannot, without manifest inconvenience and oppressive de- 
 " lays in the suit, be all brought before it, the court in its 
 " discretion may dispense with making all of them parties, and 
 " may proceed in the suit, having sufficient parties before it to 
 " represent all the adverse interests of the plaintiffs and the 
 " defendants in the suit properly before it. But in such cases 
 " the decree shall be without prejudice to the rights and claims 
 " of all the absent parties." 
 
TABLE OF CASES. 
 
 PAGE 
 
 Adair ys. New River Co 11 Yes., 445 19 
 
 Adams vs. Porter 1 Cush., 171 60 
 
 Agar vs. Canal Co Cooper, 212 60 
 
 American etc. Co. vs. Sheldon 18 Blatchf., 50 87 
 
 Anon 2 Eq. Abr., 166, pi. 7 30, 46 
 
 Anon 2 Ves.Sr., 631 71 
 
 Ashton vs. Ashton 1 Vem., 165 82 
 
 Atlantic Ins. Co. vs. Wilson 5 R. I., 479 65 
 
 Attorney Gen. vs. Butler 123 Mass., 304 11 
 
 Attorney Gen. vs. Parker 126 Mass., 221 11 
 
 Attorney Gen. vs. Whorwood 1 Ves. Sr., 534 30, 31 
 
 Attwood vs. Small 6 CI. &F.,352 17 
 
 Baker vs. Mellish 11 Ves., 68 49 
 
 Bank vs. Boom Co 41 Minn., 141 29 
 
 Bank vs. Messereau 7 Paige, 517 60 
 
 Bank vs. Stevenson 7 Allen, 489 49 
 
 Bank ofUnited States vs. Weisiger..2 Pet., 481 86 
 
 Banning vs. Bradford 21 Minn., 308 16 
 
 Barstow vs. Smith Walk. Ch., 394 47 
 
 Battle vs. Life Ins. Co 10 Blatchf., 418 38, 75 
 
 Beach vs. Beach 11 Paige, 161 49 
 
 Bedsole vs. Monroe 5 Ired. Eq., 313 37 
 
 Bennett vs. Hoefiier 17 Blatchf., 341 45 
 
 Bennett vs. Neale Wightw., 324 58 
 
 Benningtonlron Co. vs. Campbell. ..2 Paige, 159 38 
 
 Bingham vs. Cabot 3 Call., 382 28 
 
 Bissellvs. Beckvv^ith 33 Conn., 357 •. 36 
 
 Bowles vs. Stewart 1 Sch. & Left., 227 17 
 
 Boyd vs. Hoyt 5 Paige, 65 , 36 
 
 Bradford vs. Bank 13 How., 57 64 
 
 Breuer vs. Elder 33 Minn., 147 41 
 
 Brewer vs. Boston Theatre 104 Mass., 378 37 
 
 Bronson vs. R. R. Co 2 Black, 524 84 
 
 Bronson vs. R. R. Co 2 Wall., 283 69 
 
 Brooks vs. Byam 1 Story, 296 62, 63, 71 
 
 Brooks vs. Gibbons 4 Paige, 375 47 
 
 Brown vs. Pierce 7 Wall., 205 63, 65 
 
92 TABLE OF CASES. 
 
 PAGB 
 
 Burditt vs. Grew 8 Pick., 108 10 
 
 Burney vs. Morgan....; 1 Sim. & Stu., 358 20 
 
 Calloway vs. Dobson 1 Brock., 119 66 
 
 Campbell vs. Campbell 4 Halst. Eq. (N. J.), 740 64 
 
 Campbell vs. Mackay 1 Mylne & Cr., 603 47 
 
 Campbell vs. Mesier 4 Johns. Ch., 334 86 
 
 Carey vs. Hatch 2 Edw. Ch., 190 34 
 
 Carey vs. Jones 8 Ga., 516 62, 65 
 
 Carrington vs. Brent 1 McLean, 167 41 
 
 Carte vs. Ball 3 Atk., 496 59 
 
 Cassidy vs. Shimmin 122 Mass., 406 18 
 
 Clarke, In re 9 Blatchf., 372 79 
 
 Clarke vs. Tipping 4 Beav., 588 64 
 
 Clarke vs. Turton 11 Yes., 240 28 
 
 Clements vs. Bowes 16Jur., 96 20 
 
 Clements vs. Moore 6 Wall., 299 72, 73 
 
 Clinch vs. Financial Co L. R., 4 Ch. App., 117 20 
 
 Coates vs. Legard L. R., 19 Eq., 56 37 
 
 Cocks vs. Worthington 2 Atk., 236 78 
 
 Coffin vs. Cooper 6 Yes., 514 35 
 
 Coleman vs. Martin 6 Blatchf., 291 73, 79 
 
 Colton vs. Ross 2 Paige, 396 33 
 
 Conn vs. Penn 5 Wheat., 424 19 
 
 Cook vs. Fountain 3 Sw., 585 6 
 
 Copen vs. Flesher 1 Bond, 440 1 38 
 
 Cottle vs. Krementz 25 Fed. Rep., 494 55 
 
 Crease vs. Babcock 10 Met., 532 20 
 
 Crescent City Co. vs. Butcher's Un- 
 ion Co., 12 Fed.Tiep., 225 67 
 
 Cross vs. De Yalle 1 Wall., 5 69 
 
 Crump vs. Ingersoll 49 N. W. Rep., 739 5 
 
 Cunningham vs. Freeborn 3 Paige, 557 65 
 
 Dandridge vs. Custis 2 Pet., 377 16 
 
 Daniel vs. Mitchell 1 Story, 198 87 
 
 Davies vs. Otty 2 De G. J. & S., 238 .33 
 
 Davison vs. Attorney Gen 5 Price, 398 61 
 
 Delabere vs. Norwood 3 Swanst., 144 14 
 
 Dimmock vs. Bixby 20 Pick., 368 49 
 
 Dodge vs. Israel 4 Wash., C. C, 323 77 
 
 Dodge vs. Perkins 4 Mason, 435 59 
 
 Dormitzer vs. Bridge Co 6 Fed. Rep., 217 19 
 
 Drake vs. Goodrirfge 6 Blatchf., 151 18 
 
 Duponti vs. Mussy 4 Wash. C. C, 128 72 
 
TABLE OF CASES. 93 
 
 PAGE 
 
 Durkee vs.Stringham 8 Wise, 1 87 
 
 Dwight vs. Hutnplireys 3 McLean, 104 34 
 
 BagleFireCo. vs. Lent 6 Paige, 635 16 
 
 East India Co. vs. Donald 9 Ves., 275 65 
 
 Edsell vs. Buchanan 2 Ves. Jr., 83 47 
 
 Ellis vs. Colman 25 Beav., 662 29 
 
 Emery vs. Parrott 107 Mass., 104 86 
 
 Farley vs. Kittson 120 U. S., 303 55 
 
 Famam vs. Brooks 9 Pick., 212 65 
 
 Fenn vs. Craig 3 Y. & Coll., 216 17 
 
 Fenton vs. Williams 11 Paige, 18 66, 68 
 
 Fite vs. Clayton 13 Ves., 546 64 
 
 Financial Corp. vs. Railway L. R., 3 Eq., 422 60 
 
 Fischer vs. Hayes 6 Fed. Rep., 76 73, 79 
 
 Flint vs. Field 2 Anst., 543 28 
 
 Ford vs. Douglas 5 How., 143 69 
 
 Forgay vs. Conrad 6 How., 203 84 
 
 Forsvth vs. Clark 3 Wend., 637 65 
 
 Foster vs. Woodfin 65 N. C, 29 86 
 
 French vs. Bank 7 Ben., 488 17 
 
 Fretz vs. Stover 22 Wall., 198 73 
 
 Fryrear vs. Lawrence 5 Gilm., 325... 65 
 
 O- 
 
 Gambee vs. Atlee 2 De G. & Sm., 745 12 
 
 Garrow vs. Carpenter 1 Porter, 359 65 
 
 Geraon vs. Boecaline 2 Wash., C. C, 199 53 
 
 GiantPowderCo.vs.Cal.V.P.Co., 6Sawy., 531 87 
 
 S. C 5 Fed. Rep., 199 87 
 
 Gibson vs. Jayne 37 Miss., 164 47 
 
 Gilbert vs. Lewis 1 De G. J. & S., 38 59 
 
 Gilbert vs. Van Arman 1 Flippin, 421 79 
 
 Goncelier vs. Foret 4 Minn., 13 16 
 
 Good vs. Blewitt 19 Ves., 336 20 
 
 Goodyear vs. Bourn 3 Blatchf., 266 38 
 
 Gover vs. Lucas 8 Sim., 200 77 
 
 Gracie vs. Palmer 8 Wheat., 699 41 
 
 Greenwood vs. Churchill 1 M. & K., 559 60 
 
 Haganvs. Walker 14 How., 37 14 
 
 Hallett vs. Hallet 2 Paige, 15 14, 20 
 
94 TABLE OF CASES. 
 
 PAGE 
 
 Hardemann vs. Harris 7 How., 726 60 
 
 Harriman vs. Rockaway Co 5 Fed. Rep., 461 41 
 
 Harrison vs. Hogg 2 Ves. Jr., 323 36 
 
 Harrison vs. Urann ] Story, 64 18 
 
 Hart vs. Ten Eyck 2 Johns. Ch., 62 65 
 
 Hawley vs. Wolverton 5 Paige, 523 35 
 
 Hayes vs. Dayton 18 Blatchf., 420 67 
 
 Hayward vs. National Bank 96 U. S., 611 33 
 
 Heath vs. Erie Ry 9 Blatchf., 316 69 
 
 Hertell vs. Van Buren 3 Edw. Ch., 30 59 
 
 Hichens vs. Congreve 4 Russ., 562 20 
 
 Hood vs. Inman 4 Johns. Ch., 437 10 
 
 Houghton vs. Reynolds 2 Hare, 264 28, 30 
 
 House vs. Mullen 22 Wall., 42 21 
 
 Hughes vs. Blake 6 Wheat., 453 55 
 
 Hunt vs. Holland 3 Paige, 82 38 
 
 Hunt vs. Rousmaniere 2 Mason, 342 49 
 
 Hyman vs. Chales 12 Fed. Rep., 855 41 
 
 Ingle vs. Jones 9 Wall., 486 79 
 
 Insurance Co. vs. Adams 9 Pet., 573 41 
 
 Jackson vs. Ashton 8 Pet., 148 28 
 
 Jacobs vs. Richards '. 18 Beav., 300 69 
 
 Jenkins vs. Eldredge 3 Story, 299 87 
 
 Jerome vs. McCarter 94 U. S., 734 14 
 
 Jesus College vs. Gibbs 1 Y. & C, Ex., 145 58 
 
 Jobbins vs. Montague 5 Ben., 429 41 
 
 Johnson vs. Tucker 2 Tenn. Ch., 244 71 
 
 Jones vs. Andrews 10 Wall., 327 41 
 
 Jones vs. Brittau 1 Woods, 667.... 73 
 
 Jones vs. Pugh 12 Sim., 470 60 
 
 Jones vs. Wilson : 54 Ala., 50 84 
 
 Kemball vs. Stewart 1 McLean, 332 45 
 
 Kennebec R. R. vs. Portland R. R...54 Me., 173 37 
 
 Ketland vs. Bissett 1 Wash., C. C, 144 78 
 
 Kirwan vs. Daniel 7 Hare, 347 18 
 
 Kittredge vs. Claremont Bank 1 W. & M., 244 63 
 
 Kittredge vs. Race 92 U. S., 116 71 
 
 Knox vs. Summers 3 Cranch, 496 41 
 
TABLE OF CASES. 95 
 
 Xj 
 
 PACE 
 
 Labadie vs. Hewitt 85 Ills., 341 60 
 
 Lawrence vs. Lawrence 4 Bibb., 357 65 
 
 Leigh vs. Birch 32 Beav., 399 60 
 
 Leigh vs. Thomas 2 Ves. Sr., 312 20 
 
 Le Neve vs. Le Neve 1 Ves. Sr., 66 65 
 
 Le Texier vs. Anspach 15 Yes., 164 17 
 
 Lewis vs. Iron Works 50 Vt., 477 37 
 
 Lewis vs. Williams 3 Minn., 151 16 
 
 Livingstone vs. Story 11 Pet., 351 59 
 
 Lloyd vs. Brewster 4 Paige, 537 33 
 
 Long vs. Storie 9 Hare, 542 59 
 
 Lgwenstein vs. Glidewell 5 Dill., 325 69 
 
 Lucas vs. Holder 1 Eq. Cas. Abr., 41, pi. 3 59 
 
 Lucas vs. Lucas 13 Ves., 274 61 
 
 Luce vs. Graham 4 Johns. Ch., 170 38 
 
 Lydiard vs. Chute 45 Minn., 277 18 
 
 Lyon vs. Tevis 8 la., 79 16 
 
 Manning vs. Thesiger 1 Sim. & Stu., 106 20 
 
 Marsh vs. Keith 1 Dr. & Sm., 342 33 
 
 Marshall vs. Sladden 7 Hare, 428 17 
 
 Marye vs. Strouse 5 Fed. Rep., 494 41 
 
 Matthews vs. Lalauce, etc., Co 2 Fed. Rep., 232 55 
 
 Maury vs. Mason 8 Porter, 211 60 
 
 Mayor of York vs. Pilkington 1 Atk., 282 21 
 
 McCabe vs. Bellows 1 Allen, 269 37 
 
 Mead vs. Day 54 Miss., 58 62, 65 
 
 Mechanics Bank vs. Levy 3 Paige, 606 35 
 
 Meux vs. Maltby 2 Swanst., 284 20 
 
 Micklethwaite vs. Atkinson 1 Coll., 173 61 
 
 Miller vs. Fenton (See Fenton vs. 
 
 Williams) 11 Paige, 18 66, 68 
 
 Moody vs. Rowell 17 Pick., 490 78 
 
 Moore vs. Huntington 17 Wall., 417 69 
 
 Mowatt vs Graham 1 Edw. Ch., 13 82 
 
 Mulgrave vs. Dunbar 2 Swanst., 198, n 82 
 
 Myers vs. Dorr 13 Blatchf., 22 53, 55 
 
 National Bank vs. Ins. Co 14 Otto, 54 47 
 
 Neal vs. Foster 34 Fed. Rep., 496 70 
 
 Neale vs. Neales 9 Wall., 1 38, 75 
 
 N. E. Bank vs. Lewis 8 Pick., 113 65 
 
 Nelson vs. Moon 3 McLean, 319 41 
 
96 TABLE OF CASES. 
 
 PAGE 
 
 Newby vs. Oregon R. R 1 Sawy., 63 47 
 
 Newland vs. Rogers 3 Barb. Ch., 432 37 
 
 Newton vs. Egmont 5 Sim., 137 20 
 
 Norton vs. Turvill 2 P. Wms., 144 60 
 
 N. Y. & N. H. R. R. vs. Schuyler 17 N. Y., 592 47 
 
 O'Hara vs. McConnell 3 Otto, 151 41, 45 
 
 Osborn vs. U. S. Bank 9 Wheat., 739 41 
 
 Osborne vs. Barge 30 Fed. Rep., 805 69 
 
 Partridge vs. Jackson 2 Edw. Ch., 520 34 
 
 Patriotic Bank vs. ank of Wash- 
 ington 5 Cranch, C. C, 602 71 
 
 Peay vs. Schenck Woolw., 175 69 
 
 Peirce vs. West's Ex'rs Pet., C. C, 351 73 
 
 Peirce vs. West's Ex'r 3 Wash., C. C, 354 38 
 
 Perkins vs. Foumiquet 6 How., 206 87 
 
 Phoenix Co. vs. Wulf. 9 Biss., 285 41 
 
 Pinney vs. Fridley 9 Minn., 34 29 
 
 Poore vs. Clarlc 2 Atk., 515 14 
 
 Pope vs. Oil Co 115 Mass., 286 37 
 
 Pritchard vs. Hicks 1 Paige, 270 20 
 
 Putnam vs. Day 22 Wall., 60 85 
 
 Putnam vs. New Albany 4 Biss., 365 69, 70 
 
 Randall vs. Phillips 3 Mason, 378 65 
 
 Rawlings vs. Lambert 1 Johns. & H., 458 33 
 
 Redmond vs. Dana 3 Bosw. (N. Y.), 615 33 
 
 Reynolds vs. Crawfordsville Bank. .112 U. S., 405 73 
 
 Ribon vs. R. R. Co 16 Wall., 446 19 
 
 Richardson vs. Golden 3 Wash., C. C, 109 77 
 
 Richardson vs. Hastings 7 Beav., 323 20 
 
 Roach vs. Hulings 5 Cranch, C. C, 637 34 
 
 Robinson vs. Satterlee 3 Sawy., 134 72 
 
 Roemer vs. Bernheim 132 U. S.,103 87 
 
 Rogers vs. Riessner 31 Fed. Rep., 591 70 
 
 Rubber Co. vs. Goodyear 9 Wall., 807 69 
 
 Russell vs. Loring 3 Allen, 121 5 
 
 Sandford vs. Remington 2 Ves. Jr., 189 81 
 
 Segee vs. Thomas 3 Blatchf., 11 41 
 
TABLE OF CASES. 9'? 
 
 PAGE 
 
 Seitz TS. Mitchell 94 U. S., 580 65 
 
 Shelton vs. Tiffin 6 How., 163 41 
 
 Shields vs. Barrow 17 How., 130 18, 38, 69 
 
 Shotwell, In re 43 Minn., 389 82 
 
 Simpson, Ex parte 15 Ves., 477 35 
 
 Small vs. Atwood Younge, 407 20 
 
 Smith vs. Babcock 3 Sumn., 583 50, 66 
 
 Smith vs. Barnes 1 Dick, 67 49 
 
 Smith vs. Hibernian Mine Co 1 Sch. & Lefr., 240 18 
 
 Smith vs. Serle 14 Ves., 415 70 
 
 Stevens vs. Guppy 1 Turn. & Russ., 178 87 
 
 Stinson vs. Hildrup 8 Biss., 376 34 
 
 Suydam vs. Truesdale 6 McLean, 461 66 
 
 Swatzel vs. Arnold Woolw., 383 38 
 
 Talmage vs. Pell 9 Paige, 413 66 
 
 Tayloe vs. Insurance Co 9 How., 390 33 
 
 Texas vs. Hardenberg 10 Wall., 68 33 
 
 Theberath vs. Rubber etc., Co 5 Bann. & A., 584 55 
 
 Tomkin vs. Lethbridge 9 Ves., 178 70 
 
 Town vs. Needham 3 Paige, 545 65 
 
 Tremolo Patent, In re the 23 Wall., 518 38 
 
 XT 
 
 United States vs. McLaughlin 24 Fed. Rep., 823 61 
 
 United States vs. Montgomery 2 Ball., 335 41 
 
 United States vs. Moore 2 Brock., 317 41 
 
 Utterson vs. Mair 2 Ves. Jr., 95.... 16 
 
 ■V 
 
 Van Hook vs. Whitlock 7 Paige, 373 60 
 
 Vattier vs. Hiude 7 Pet., 252 72 
 
 Virginia Co. vs. United States Taney, 418 41 
 
 Vroom vs. Ditmas 5 Paige, 528 86 
 
 Washburn vs. Scutt 22 Fed. Rep., 710 69 
 
 Watson vs. Palmer 5 Pike, 501 65 
 
 Weale vs. Water Works Co 1 Jac. & Walk., 369 21 
 
 West vs. Randall 2 Mason, 190 14, 20 
 
 Wheaton vs. Briggs 35 Minn., 470 62, 65 
 
 Whitbcck vs. Edgar 2 Barb. Ch., 106 16 
 
 White vs. Fussell 19 Ves., 113 78 
 
 Whiting vs. Bank of U. S 13 Pet., 6 15, 84, 85 
 
98 TABLE OF CASES. 
 
 PAGE 
 
 Williams vs. Douglas 5 Beav., 82 35 
 
 Williams vs. Jones 1 Younge, 252 56 
 
 Willis vs. Evans 2 Ball & Beatt., 225 38 
 
 Wilson vs. Jamison 36 Minn., 59 16 
 
 Winder vs. Diffenderfcr 2 Bland., 166 81 
 
 Wiusor vs. Bailey 55 N. H., 218... 37 
 
 Wiswall vs. Hall 3 Paige, 313 : 5 
 
 Wood vs. Dtimmer 3 Mason, 315 20 
 
 Wood vs. Mann 2 Sumn., 316 79 
 
 York vs. Pilkington 1 Atk., 282 21 
 
 Young vs. Grundy , 6 Cranch., 51 63 
 
 Young vs. Pott 4 Wash., C. C, 521 69 
 
 MEMORANDUM. 
 
 The references to Story's Equity Pleading are to the 9th Edition ; those 
 to Daniel's Chancery Pleading and Practice are to the 5th American 
 Edition ; those to Barton's Suit in Equity are to IngersoU's Edition. 
 
INDEX. 
 
 Abatement, page 
 
 at law and in equity 25 
 
 matter in, raised by plea or demurrer 48, 51, 52 
 
 " " not raised by answer 54 
 
 Absentees, 
 
 when dispensed with 18 
 
 averment and prayer of bill as to 34 
 
 Account, 
 
 balance may be decreed in favor of defendant without cross-bill.. 64 
 
 Address of BiU 28 
 
 A§^ents, 
 
 not necessary parties 16 
 
 proper parties in some cases 17 
 
 Alien Enemy, 
 
 cannot maintain bill ordinarily 11 
 
 may be sued 13 
 
 Alternative statements, 
 
 of fact not allowed 33, 58 
 
 of law allowed 33, 58 
 
 Ambiguity, 
 
 not allowed '. 58 
 
 Amendment, 
 
 of bill, new matter in answer avoided by, 10, 73 
 
 by adding parties 21 
 
 of bills 37, 38 
 
 how made 38 
 
 may sometimes be interlined 38 
 
 ordinarily not interlined 38 
 
 permitted at hearing when 38, 75 
 
 may not make a different case under guise of. 38 
 
 of bill, what may be set up by 38 
 
 right to make abridged, how 43 
 
 of bill after demurrer 49 
 
 matter of discretion when 49 
 
 of answer 66, 74 
 
 of bill, after answer, new answer when to be filed 74 
 
 failure to file new answer,— default 74 
 
 none ofbill after replication, ordinarily 74 
 
 except as to making parties 75 
 
 but court may allow 75 
 
100 INDEX. 
 
 Answer, page 
 
 general subject 57—66 
 
 defect of parties raised by 15 
 
 as evidence for and against plaintiflf. 31, 33 
 
 means of eliciting testimony of a defendant 31, 68 
 
 court open for filing when 39 
 
 time for 43 
 
 how obtained when defendant fails to answer 44 
 
 must be full 50,54, 58, 60-62 
 
 denial of citizenship in answer 52 
 
 excuses for not answering raised by, when 54, 55, 60-62 
 
 requii-ement of. 57 
 
 defendants may put in separate answers 57 
 
 double office of. 46 57 
 
 how constructed 58 
 
 may contain several defenses 58 
 
 may at once traverse and avoid 59 
 
 what defenses raised by 59-62 
 
 waiver of, under oath 62 
 
 frame of 63 
 
 does not admit allegations merely not denied 63 
 
 what effectual as admission in 63 
 
 what effectual as denial in 63 
 
 to be signed and sworn to 63 
 
 °f™fe-nt 63, 64 
 
 to be filed 64 
 
 eifect of. 64 
 
 affirmative relief aiforded defendant on 64 
 
 when evidence 64-66 74 
 
 when not evidence 64-66 
 
 how amended 66 74 
 
 amendments as to substance rarely allowed in 66 74 
 
 supplemental 66 68 
 
 defenses discovered after, how pleaded qq 68 
 
 defenses arising after, how pleaded 66 68 
 
 demurrer, plea, and answer to same matter not allowed 67 
 
 when answer will not suffice, and recourse to cross-bill neces- 
 
 ^^^y 68, 69 
 
 to cross-bill may be used as evidence 69 
 
 arguing case on bill a.nd answer only 74 
 
 to be printed go 
 
 Appeal, 
 
 how taken „» 
 
 matter heard cfe novo on §7 
 
 Appearance, 
 
 confers jurisdiction of the person 41 
 
 waives defects of service 4I 
 
 to be entered when ^-^ 
 
 how entered ^o 
 
INDEX. ^ 101 
 
 Argumentative Pleading, page 
 not permitted ;.~ 59 
 
 Attacliment, 
 
 to compel appearance 42 44 
 
 to compel answer 4,4 
 
 Attainder, 
 
 takes away right to sue H 
 
 of defendant no defense I3 
 
 Bankrupt, 
 
 proper party with assignee, when I7 
 
 BiUs, 
 
 early bills 7 § 
 
 classification of. 22-26 
 
 original 22-24 
 
 English bais 22, 23 
 
 of interpleader 23 
 
 oi certiorari 23 
 
 to perpetuate testimony 23, 24 26 
 
 to examine witnesses de bene esse 23, 24, 26 
 
 of discovery 24, 26 
 
 not original 24—26 
 
 supplemental bills 24, 25, 87 
 
 of revivor 25 
 
 of supplement and revivor 25 
 
 cross-bills 25, 64, 66, 68-70 
 
 of review 25, 85, 87 
 
 to impeach a decree for fraud or mistake 26, 87 
 
 to suspend the operation of a decree 26, 87 
 
 to carry decrees into execution 26 
 
 objects of bills 26, 27 
 
 parts of. 28-35 
 
 in U. S. practice 35 
 
 may be verified or not .^ 37 
 
 to be filed 37 
 
 must state plaintiff's case 38, 73 
 
 forms of.. 38 
 
 court open for filing, when 39 
 
 suit instituted by filing 40 
 
 taken pro confesso, when 42, 44 
 
 dismissed if demurred to unless set down for argument 47 
 
 reinstating after demurrer 49 
 
 must state case correctly or no relief 73 
 
 not amendable ordinarily after replication 74 
 
 may be amended at hearing 75 
 
 to be printed 82 
 
 amendment of, See Amendments. 
 
 Bills of Certiorari 23 
 
103 • INDEX. 
 
 PAGE 
 
 Bills of I>iseovery 24 
 
 use of. 24 
 
 nearly obsolete in U. S 26 
 
 Bills of Keview, 
 
 general subject 25, 85, 87 
 
 bills in nature of. 26, 87 
 
 Bills of Revivor, 25 
 
 Bills of Supplement and Revivor 25 
 
 Bona fide Purchaser, 
 
 as excuse for not answering 49, 52, 61, 62 
 
 defense of raised by answer or plea 54, 61, 62 
 
 O 
 
 Capacity to Sue or be Sued, See Parties. 
 Certainty, 
 
 in the bill 27, 29, 35, 58 
 
 in the answer 58 
 
 in the plea 58 
 
 Certiorari, 
 
 bills of 23 
 
 Chancellor, 
 
 an ecclesiastic till time of Henry VIII 4 
 
 powers originally arbitrary 6 
 
 conscience of 6 
 
 discretion of 6, 78 
 
 Chancery Jurisdiction, 1-10 
 
 Charging Part of Bill, 
 
 its uses 29, 30 
 
 premises used instead of. 30 
 
 Citizenship, 
 
 to be shown by introductory part of bill in U. S. practice 28 
 
 issue of fact on, raised by plea only 51, 52, 55 
 
 Clerical Errors, how corrected 
 
 . in bill 37 
 
 in answer 66 
 
 in decree : 86 
 
 Clerk of Court, 
 
 suit instituted by filing bill with 37 
 
 office of, open when 39 
 
 powers and dnties of 39 
 
 attendance of, in office 39 
 
 to issue subpoena, when 40 
 
 to enter suit as pending, when 41 
 
 power to appoint examiners 77 
 
 Commissioner to talie Testimony, 
 
 how named : 76, 77 
 
 powers and duties of 78, 79, 82 
 
 can not pass on objections ; 80, 82 
 
INDEX. 103 
 
 PAGE 
 
 Coiimioii Confederacy Clause, 29 
 
 Coninion Law Courts, 
 
 their refusal to exercise equity powers 4 
 
 equitable defenses, how raised in 87, 88 
 
 Common Law Remedies, 
 
 their inadequacy X 2 
 
 lack of, as ground for exercise of equity powers 5 
 
 Common Law Kules of Pleading 
 
 apply substantially inequity 27, 29, 58 
 
 Confession and Avoidance, 
 
 matter in, how^ pleaded 10 73 
 
 Confidential Communication, 
 
 as excuse for not answering bill 48, 52, 60 
 
 " " bv witness 81, 82 
 
 Conscience, 
 
 as foundation of equity g 
 
 Corporation, 
 
 sues how 11 
 
 how sued 11 
 
 stockholders and officers joined when 17 
 
 one stockholder suing on behalfof all 20 
 
 Counsel, 
 
 certificates by 9, 47, 53 
 
 signature of, to bill 34, 35, 36 
 
 responsible for contents of bill 34, 36 
 
 signature to interrogatories 77 
 
 Court of Chancery, 
 
 its origin 5 
 
 Creditor's Bill, 
 
 parties to 19, 20 
 
 Cross-bills, 
 
 general subject 68-70 
 
 their nature 25 
 
 defendant obtains affirmative reliei bj^ 64 
 
 aspleapa/s darrein continuance '. 66, 68 
 
 uses of. 68 
 
 one proceeding with the original bill 68, 69 
 
 w^hat defenses to be set up by 66, 68, 69 
 
 need not be answ^ered till original bill answered 69 
 
 leave to file necessary 69 
 
 subpoena to answer, may be served on solicitors 69 
 
 in U. S. courts, question of citizenship 69 
 
 defendant entitled to decree on, on dismissal of original bill 69 
 
 defendant not ordinarily bound to Seek relief by 69 
 
 when may be filed , 70 
 
 Cross-Interrogatories, 
 
 how framed 77 
 
 when and where filed 77 
 
 when liable to objection as leading 78 
 
104 INDEX. 
 
 ID 
 Decree, page 
 
 general subject 84—87 
 
 binds only parties to suit 15 
 
 on order to take the bill pro confesso 44 
 
 taken on default when vacated 44, 45 
 
 defined 84 
 
 interlocutory 84 
 
 final 84 
 
 parts of. 84 
 
 frame of. 85 
 
 contains ordinarily no findings of fact in U. S. practice 85 
 
 how corrected and reviewed 85—87 
 
 to be entered when 86 
 
 how enforced 86 
 
 Default, 
 
 consequences of. 42, 44 
 
 Defect of Parties, 
 
 objection of, how raised 59 
 
 Defendants, See Parties. 
 Defenses, 
 
 general subject 45-70 
 
 classes of 46 
 
 how raised 59—62 
 
 discovered after answer, how pleaded 66, 68 
 
 arising after answer, how pleaded 66, 68 
 
 See Answer, Demurrer, Exceptions, Cross-Bills, and Plea. 
 Demurrer, 
 
 general subject 46-50 
 
 defect of parties raised by 15 
 
 objection to multifariousness raised by 36 
 
 court open for filing when 39 
 
 what is a 46 
 
 lies only to bill 46 
 
 a dilatory pleading 46, 54 
 
 form of. 47 
 
 signature, certificate, and afiidavit to 47 
 
 plaintiff must set, down for argument 47 
 
 kinds of. 47 
 
 reaches only facts on face of the bill 47, 49 
 
 speaking, bad ; 47 
 
 joint 47 
 
 too large 47, 49 
 
 setting down for argument 47, 70 
 
 to relief. 48 
 
 operates ordinarily as demurrer to whole bill 48 
 
 to discovery 48 
 
 to particular interrogatories 48 
 
 grounds of, 48, 49 
 
INDEX. 105 
 
 Beninrrer, continued 
 
 PAGE 
 
 second demurrer, when allowed 49 
 
 grounds of, may be assigned ore tenus when 49 
 
 too narrow, how treated in England and in U. S 49, 67 
 
 concurrent with answer to part of same mattter 49, 67 
 
 sustaining to whole bill, effect of 49 
 
 if on the merits of the case 50 
 
 partial, allowance of 50 
 
 overruling, judgment on 50 
 
 objects attained by 50 
 
 not favoi-ed _ 54 
 
 use of answer instead of 54^ 55 
 
 defenses raised by 59-62 
 
 admits truth of facts stated in bill 63 
 
 to part of bill, to be accompanied by answer or plea to residue.. 67 
 
 answer, demurrer, and plea, each to whole bill, not permissible... 67 
 
 efiect on, of exceptions for insufficiency 71 
 
 Demurrer to Interrogatories, 
 
 in bill 48 
 
 by witness 81^ 82 
 
 does not proceed solely on face of record 81 
 
 gi-oundsof 81, 82 
 
 practice on 82 
 
 Deposition, 
 
 how taken in equity 76-82 
 
 on interrogatories 76-79 
 
 suppressed, if general interrogatory not answered 77 
 
 when taken orally 79, 80 
 
 to be filed with clerk 80 
 
 how and when suppressed 77, 82 
 
 Direction of Bill 28 
 
 Disabilities, 
 
 to sue 11, 12 
 
 to be sued 12, 13 
 
 Disclaimer, 56, 57 
 
 interest can be disclaimed 56 
 
 liability cannot be disclaimed 56 
 
 its frame 56 
 
 answer may be required notwithstanding 56 
 
 how withdrawn 57 
 
 Discovery, 
 
 origin of bills of 10 
 
 bills of 24 
 
 demurrers to 48 
 
 pleas to 52 
 
 defendants must make full 50, 54, 58, 60, 61 
 
 not required of infant or public officer 61 
 
 how made , 62 
 
106 INDEX. 
 
 Discretion of Chancellor, pagb 
 
 what it is 6 
 
 as to leading questions 78 
 
 Dismissal, 
 
 for want of parties will be without prejudice 21 
 
 Double Aspect, 
 
 framing bill with 33 
 
 framing answer with 58 
 
 ie: 
 
 Edward HI, 
 
 results of his absences from England 3 
 
 order of reference to chancellor 3 
 
 Enforcing- Decree, 
 
 bills for 26 
 
 English Bills 22, 23 
 
 Equitable Defenses. 
 
 how availed of in actions at law 87, 88 
 
 Equity, 
 
 includes only matters of grace 3, 9 
 
 maxims of. 9 
 
 acts in personam 18 
 
 acts sometimes quasi in rem 18 
 
 acts secundum allegata et probata 38, 73 
 
 Evidence, See Testimony and Witnesses. 
 
 Examiner, See Commissioner to take Testimony. 
 
 Exceptions, 
 
 for impertinence 35, 36, 45, 46, 70 
 
 for scandal 36, 45, 70 
 
 to the bill 45 
 
 when filed 45, 46 
 
 to the answer 70, 71 
 
 for insufficiency (see Insufficency) 71 
 
 Excommunicate, 
 
 cannot exhibit bill 11 
 
 maybe sued 13 
 
 Executors and Administrators, 
 
 when joinder of dispensed with j 17 
 
 represent their estate 19 
 
 Exemptions fiom Suit 12, 13 
 
 See Demurrers, Pleas, Answers, and Immunity from Suit. 
 
 Federal Practice, See United States Courts. 
 
 Feigned Issues 83 
 
 Files, 
 
 striking pleadings from 70 
 
 right of, how waived 70 
 
INDEX. 107 
 
 Findings of Fact, page 
 not set out in decree in U. S. Courts 85 
 
 Foreign State, 
 
 no jurisdiction over obtainable 12 
 
 Forfeiture, 
 
 as excuse for not answering 48, 52, 60 
 
 " " " by witness 81,82 
 
 Fravid, 
 
 fatal to decree 26 
 
 attack for, must be by bill 26 
 
 bill to impeach on ground of 26 
 
 allegation of, in bill must be answered to 51 
 
 O- 
 Guardians 12 
 
 Hearing, 
 
 on bill and answer only 65-66, 74 
 
 setting down for 70, 74, 82 
 
 on demurrer 70 
 
 how conducted 83 
 
 Husband and Wife, 
 
 when join, and when wife may sue alone 12, 13 
 
 X 
 Idiot, 
 
 sues how 11, 12 
 
 how^ sued 13 
 
 Immunity from Snit, 
 
 how claimed 59 
 
 Impertinence , 
 
 in bills 35, 36 
 
 remedies for 35,36, 45, 46, 70 
 
 reference for 46 
 
 how waived 46, 70, 71 
 
 in answer 63, 70 
 
 in interrogatories 78 
 
 Incapacity of Parties, 
 
 how raised 59 
 
 Inconsistent Statements not Permitted : 33, 58 
 
 Infant, 
 
 sues how^ 11, 12 
 
 how sued 13 
 
 not compelled to make disclosure 61, 63 
 
 answer of. 63, 64 
 
 Information, 11 
 
108 INDEX. 
 
 Injunctiou, page 
 
 must be specially prayed for 33, 34 
 
 InsiiflEiclency, 
 
 definition of. 71 
 
 remedy for 71 
 
 eflfect of allowance of exceptions for 71 
 
 how waived 71 
 
 exceptions for, their effect on demurrers and pleas 71 
 
 exceptions for, unnecessary if no answer filed 71 
 
 Interpleader, Bill of. 23 
 
 Interrogatory Part 30-32, 64 
 
 requirement of answer 32 
 
 to be used withcaution 32, 33 
 
 unnecessary 31, 32, 35 
 
 limited to matters charged in the bill 31 
 
 limitation waived by answering 31 
 
 form of: 32 
 
 Interrog-atories to Party, 
 
 how answered 32, 50, 54, 58, 60, 61 
 
 what, shall be answered specified in note to bill 32 
 
 to be divided and numbered 32 
 
 Interrogatories to Witnesses, 
 
 filed when and where 77 
 
 how framed 77 
 
 general interrogatory, form of 77 
 
 if put, must be answered 77 
 
 Introduction 28 
 
 Introductory Part, 28, 35 
 
 to show names, citizenship, and place of abode, &c., of parties.. 28 
 
 Issues, 
 
 ii-aming, for jury 83 
 
 Joinder of Parties 13-^1 
 
 See Parties. 
 
 Jurisdiction 1-10 
 
 none to be exercised where common law remedy 5 
 
 objection of remedy at law to be taken before hearing 5, 59 
 
 obsolete jurisdiction 5 
 
 quasiin rem 18 
 
 ordinarily in personam 18 
 
 must appear by bill 37 
 
 by citizenship in U. S. courts, citizenship nrust be shown 28 
 
 " ■' " " " how denied 51, 52 
 
 objections to, hovir raised 59 
 
 Jurisdiction Clause, 30 
 
INDEX. 109 
 
 Jury, PAGE 
 
 framing issvies for g3 
 
 trial by ;,, 83, 84 
 
 King, 
 
 original source of equity powers 2 
 
 order of reference to chancellor 3 
 
 his prerogative of grace 4 
 
 licatliiig^ Questions, 
 
 when permitted 77,78 
 
 when excluded 77,78 
 
 Lieg-atees, 
 
 not proper parties to suits against estate 19 
 
 one on behalf of all 20 
 
 liunatic, 
 
 sues how 11, 12 
 
 how sued 13 
 
 Ad: 
 
 Married Women, See Husband and Wife. 
 Marshal, 
 
 process to be served by 41 
 
 held to diligence 41 
 
 Master in Chancery, 
 
 what he is 12, n- 
 
 references to, for scandal and impertinence 46 
 
 Maxims of Equity 9 
 
 Minors, See Infants. 
 
 Misdescription , 
 
 how^ corrected 37, 66, 86 
 
 Misjoinder of Parties, 
 
 objection how^, and by whom raised 16 
 
 Misnomer, 
 
 how corrected 37 
 
 Motions, 
 
 w^hen can be made 39, 43 
 
 grantable of course, when disposed of 39 
 
 what are grantable of course 39 
 
 how^ and where entered 42 
 
 notice of 43 
 
 failure to oppose 44 
 
 heard when 43 
 
 Multifariousness 36, 37 
 
 objection how raised 59 
 
 Multiplicity 37, 59 
 
110 INDEX. 
 
 Ne exeat, Writ of, page 
 
 to be specially prayed for 33, 34 
 
 Notice, 
 
 from entry in order-book 42 
 
 personal, not ordinarily required., 42 
 
 time for, may be abridged 42 
 
 not ordinarily served 43 
 
 of application for decree after order pro confesso 45 
 
 of taking depositions orally 79, 80 
 
 of time and place of taking depositions 80 
 
 O 
 
 Objections to Evidence, 
 
 how taken, by party 80-82 
 
 by witness 81, 82 
 
 how ruled on 80, 82 
 
 8Sli, \ the plaintiff 28 
 
 Order-booli 42 
 
 Orders of Course, 
 
 w^hen and how granted 39 
 
 what are 39, 40 
 
 how rescinded 40 
 
 Ordinances of Lord Bacon 6 
 
 Origin of Chancery Powers I-IO 
 
 Outlaw, 
 
 cannot sustain bill 11 
 
 cannot plead his own outlawry as defense 13 
 
 Parliament, 
 
 struggles against chancellor's power 4 
 
 establishes chancery powers 4 
 
 Parties to Suits 8, 11-21 
 
 all persons directly interested to be made 8, 14 
 
 are either plaintiflfs or defendants 8, 15 
 
 who may be plaintiifs, and how ..11, 12 
 
 who may be defendants, and how 12, 13 
 
 joinder of 13-21 
 
 defect of, howraised 15, 59 
 
 w^ho are proper 14-17 
 
 w^ho are necessary 14-18. 90 
 
 who are indispensable 14-19, 90 
 
 misjoinder of, objection how and by w^hom raised 16 
 
 unknowTi persons need not be joined when 17 
 
 non-existent persons as 17 
 
INDEX. Ill 
 
 Parties to Suits, continued. page 
 
 absent parties 17_ 18_ 34^ 90 
 
 one on behalf of himself and others 19-21, 90 
 
 dismissal for want of, without prejudice 21 
 
 may be added by amendment when 21 
 
 formerly not competent as witnesses 31, 68 
 
 all parties to be named in prayer for process 34 
 
 incapacity of, how raised... 59 
 
 Parts of Bills, See Bills. 
 Penalty, 
 
 as excuse for not answering 48, 52, 60 
 
 " " by witness 80-82 
 
 Pending', ' 
 
 another suit, how pleaded 52, 59 
 
 Petition, 
 
 as remedy for scandal 36 
 
 Plaintiffs, See Parties. 
 Plea, 
 
 general subject 50-55 
 
 defect of parties raised by 15 
 
 court open for filing, when 39 
 
 defined 50 
 
 office of a 51 
 
 must be single 51 
 
 pure and impure 51 
 
 to bill charging fraud or combination 51 
 
 classification of. 51 
 
 to relief. 51 
 
 to jurisdiction 51 
 
 to the parties 52 
 
 to the frame or form of the bill 52 
 
 in bar 52 
 
 to discovery 52 
 
 to particular interrogatories 52 
 
 to be accompanied by certificate and affidavit 53 
 
 frame of. 53 
 
 to be filed 53 
 
 admission of sufficiency by taking issue on 53, Son. 
 
 if deemed insufficient should be set down for argument 53 
 
 allowance of. ; 53 
 
 overruling 53, 54 
 
 omission to reply to plea or set it down for argument 53 
 
 not bad becausemight have been broader 53, 67 
 
 " " " of answer to part of same matter 54 
 
 to part of bill to be accompanied by answer to residue 54, 67 
 
 use of, not favored 54, 55 
 
 use of answer instead of. 54, 55 
 
 w^hat defenses raised by 59—62 
 
 admits all facts not denied 63 
 
112 INDEX. 
 
 Plea, continued. page 
 
 demurrer, plea, and answer to same matter not allowed 67 
 
 effect on, of exceptions for insufficiency 71 
 
 Pleadings, 
 
 continued at length in early days 10, 72 
 
 uses of 27 
 
 court open for filing when 39 
 
 not ordinarily served but filed 43 
 
 time for defendant to file 43 
 
 failure to file 44 
 
 on part of defendant 45 
 
 scandal and impertinence in 35, 36, 45, 46, 63, 70, 71 
 
 striking, from files 70 
 
 to be printed 82 
 
 Poverty, 
 
 anciently ground for equitable relief. 2 
 
 Praecipe, 
 
 for subpoena 40 
 
 for appearance 42 
 
 Prayer for Process 34, 35 
 
 names of all defendants to be inserted 34 
 
 prayer as to absentees 34 
 
 prayer as to infants and other wards 34 
 
 prayer for injunction or writ of ne exeat 34 
 
 Prayer for Relief 33, 35 
 
 general 33 
 
 special 33 
 
 general not safely omitted 33 
 
 general will ordinarily suffice unless injunction or writ of ne 
 exeat desired 33 
 
 Premises of Bill 28, 29 
 
 Printing, 
 
 of pleadings and testimony 82 
 
 Privilege of Witness, 
 
 not to answer claimedhow 81, 82 
 
 Procedure, 
 
 beginnings of chancery 7—10 
 
 general course of 22 
 
 Process .- 8, 9 
 
 prayer for 34, 35 
 
 when may be issued and returned 39 
 
 of snbpCEna, when and how issued 40 
 
 how and by w^hom served , 41 
 
 Prochein Ami. 
 
 of infant 12 
 
 of married woman 12 
 
INDEX. H3 
 
 Pro Confesso, page 
 
 taking bill 42, 44 
 
 decree taken, when vacated 44, 45 
 
 Prolixity 35, gg^ gg 
 
 Erotestation, may be omitted 53, 63 
 
 Public Officer not required to make disclosure 61 
 
 Publication of Testimony, 
 
 when 76, 79 
 
 witnesses not to be examined after, ordinarily 79 
 
 Reference, 
 
 upon exceptions 45, 46 
 
 Rehearing, 
 
 petition for , 86, 87 
 
 nature of. 86, 87 
 
 discretionary 87 
 
 allow^ed only on notice 87 
 
 Relation 11 
 
 Relator 11 
 
 Relevant Matter, 
 
 what is, in pleadings 35 
 
 Relief, See Prayer for Relief, Demurrers, Pleas. 
 
 Replication, 
 
 general subject 72—75 
 
 general alone allowed 72 
 
 last pleading 73 
 
 effect of 72 
 
 need of 73 
 
 may be dispensed with or filed nunc pro tunc 72, 73 
 
 when to be filed 73, 73 
 
 no avoidance by 73, 73 
 
 puts cause at issue 74, 75 
 
 withdrawing, and amending bill 75 
 
 Review, Bills of 25 
 
 Revivor, Bills of 25 
 
 Roman Liaw, 
 
 excluded from common law courts 4 
 
 afforded precedents to the chancellors 10, 76 
 
 Rule-day in Chancery 39 
 
 Rules, 
 
 grantable of course, when disposed of 39 
 
 interlocutory, made when 43 
 
 Rules in Equity, See United States Equity Rules. 
 
114 INDEX. 
 
 PAGE 
 
 Scandal 35, 36, 45, 46, 63, 70 
 
 reference for 46 
 
 not waived by pleading over 46, 71 
 
 in interrogatories, etc 78 
 
 Service, 
 
 of writs 41 
 
 of notices 42, 43 
 
 of subpoena to answer cross-bill 69 
 
 Speaking' Demurrer 47 
 
 Specific Performance, 
 
 accorded defendant without cross-bill 64 
 
 State, 
 
 suits by, in name of attorney general 11 
 
 exempt from suit in its own courts 12 
 
 Stating Part of Bill 28, 35 
 
 Statute of Limitations, 
 
 how pleaded 52, 60 
 
 Stockholder, 
 
 joined with corporation 17 
 
 one, on behalf of self and others 20 
 
 Striking Pleadings from Files, 
 
 motion for, lies when 70 
 
 right to, how w^aived 70 
 
 order for, how made effectiYe 70 
 
 Subpoena, 
 
 ordinary means of compelling appearance of defendant 8, 9, 40 
 
 prayer for : 34 
 
 not to be issued till bill is filed 40 
 
 joint or several 40 
 
 when returnable 40 
 
 form of. 40 
 
 how served 41 
 
 to answ^er cross-bill, how served 69 
 
 Suit, I 
 
 how instituted 37, 40, 41 
 
 when entered as pending 41 
 
 Supplemental Bill 24 
 
 method of setting up matter newly arisen 38 
 
 Suspend Decree, bills to 26 
 
 T 
 Tax-payers, 
 
 one on behalf of a number 21 
 
 Testimony, 
 
 de bene esse, bills to take 10, 23 
 
 bills to perpetuate 23 
 
INDEX. 115 
 
 Testimony, continued. page 
 
 bills to perpetuate, rare 26 
 
 in suit, taken when 76 
 
 how taken 76-82 
 
 taking, by interrogatories 76-79 
 
 taking, orall5' 79-83 
 
 notice to take, orally 79 
 
 to be printed 82 
 
 Time, 
 
 for notices may be abridged 42 
 
 for defendant to file pleading 43 
 
 motion to enlarge time to answer 43 
 
 for master's report on scandal or impertinence 46 
 
 for taking evidence , 76, 79 
 
 begins to run when 79 
 
 may be assigned by court 80 
 
 and place of taking depositions, notice of 80 
 
 Title, 
 
 defendant not required to disclose weakness of his own. ...49, 52, 60 
 witness not required to disclose, where forfeiture may result... 81 
 
 Trial, See Hearing. 
 
 evidence for, how taken ! 9, 76 
 
 Tru.stee, 
 
 allowed to answer generally when 61 
 
 TJ 
 
 United States Courts, and Their Practice, 
 
 proceedings, quasi in rem 18 
 
 jurisdiction by citizenship 18, 28 
 
 original bills not for relief almost obsolete in 24 
 
 citizenship of parties must appear in bill 28 
 
 charging part of bill ordinarily omitted 35 
 
 jurisdiction clause ordinarily omitted 35 
 
 common confederacy clause ordinarily omitted 35 
 
 address and introductory part combined 28, 35 
 
 interrogatory part largely disused 32, 33, 35 
 
 bills to be signed by counsel 35 
 
 effect of such signature 35 
 
 amendment of bills 37, 38 
 
 circuit courts open when 39 
 
 demurrers in 49, 54, 67 
 
 pleas in 54, 67 
 
 answers in 62 
 
 methods of taking evidence 79—81 
 
 printing pleadings and evidence 82 
 
 decrees in 85 
 
 bill of review in 85 
 
 See United States Equity Rules. 
 
Il6 INDEX. 
 
 United. States Equity Gules, page 
 
 No. 1 39 No. 38 46,47, 53 
 
 " 2 39 " 39 54 
 
 " 3 43 " 40 32 
 
 " 4 43, 44 " 41 32,66, 74 
 
 " 5 40 " 42 32 
 
 " 7 40 " 43 32 
 
 " 11 40 •' 44 55 
 
 " 12 40 " 45 72, 73 
 
 " 13 41 " 46 74 
 
 " 14 41 " 47 18 
 
 " 15 41 " 48.. 90 
 
 " 16 41 " 52 21 
 
 " 17 41,42, 44 "53 21 
 
 " 18 43, 57 " 59 63 
 
 " 19 44 " 60 66, 74 
 
 " 20 28 " 61 71 
 
 " 21 29,30, 33 " 62 71 
 
 " 22 34 " 63 71 
 
 " 23 13, 34 " 64 61, 71 
 
 " 24 35 " 65 71 
 
 " 26 36,45, 46 " 66 72,74, 75 
 
 ■' 27 36,45, 46 " 67 77,79,80, 81 
 
 " 28 21.38, 43 " 69 76, 79 
 
 " 29 21,73, 75 " 71 77 
 
 " 30 54 " 72 69 
 
 " 31 46,47,53, 70 " 85 86 
 
 " 32 46,51,54, 57 " 86 ., 85 
 
 " 33 46,53, 55 " 87 12, 13 
 
 " 34 46, 50, 53, 54 ■' 88 87 
 
 " 35 46, 49 " 92 ; 84 
 
 " 36 46,49,54, 67 of Dec. Term, 1850..... 32 
 
 " 37 46,49,54, 67 
 
 ■V 
 Verillcation, ' 
 
 of bill niinecessary 37 
 
 Witnesses, 
 
 are not proper parties 17 
 
 parties formerly not competent as 31, 68 
 
 how examined in equity 76—82 
 
 to subscribe their evidence 78 
 
 to answer interrogatories seriatim 78 
 
 not to be examined after publication 79 
 
 but court has discretionary power to permit 79 
 
 may be examined in open court w^hen 79 
 
 examined orally 79—82 
 
 refusing to sign deposition 80 
 
 demurrer by, to interrogatories , 81, 82 
 
 Writ ofiVe Exeat '. 33, 34 
 
MowWiTftfii