:#J /377 ^rt^t (flnrnpU Slam ^rlynnl Hihrata Cornell University LIbrafy KF 8855.B29 1877 History of a suit in equity :f rom its co 3 1924 020 119 123 ^^H m ^ i m V Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020119123 BaRJ^ON'S -fflSTORY OF A SUIT IN EQUITY HISTORY SUIT IN EQUITY Commencement to its Final Termination, By CHARLES BARTON, Of Middle Temple. NEW EDITION, REVISED AND ENLARGED FORMS OF BIL1.S, ANSWERS, PLEAS, DEMURRERS, AND DECREES. By JAMES P. HOLCOMBE. AN APPENDIX, Containing the Rules of Practice for th» Courts of Equity of the United States, revised to date, the Statute Laws of the United States relating to Equity, and the Ordinances of Lord Bacon. CINCINNATI : ROBERT CLARKE & CO. 1877. 8^//^-^^ Entered according- to Act of Congress, in the year 1847, By Derby, Bradley & Co. In the Clerk's Office of the District Court, for the District of Ohio. Entered according to Act of Congress, in the year 1877, By Robert Clarke & Co, In the Office of the Librarian of Congress at Washington. Stereotyped by Ogden, Campbell & Co., Cincinnati. PREFACE TN reproducing the ."History of a Suit in Equity," the ■*■ editor has taken several liberties with the original work. All the matter relating to the Court of Ex- chequer (which is now useless, even in England, the Equity jurisdiction of that Court having been taken away by statute), and many explanations of minute points of practice, which have never prevailed in any portion of this country, have been omitted. The notes of Mr. Barton have, for the most part, been incorporated with the text, and the latter has been enlarged by the addition of a variety of new matter, particularly on the subject of Bills, Demurrers, Pleas, Answers and Decrees. ISTumer- ous forms of pleadings have been inserted in their ap- propriate place, borrowed principally from the best English and American treatises. It is proper to mention among the former the works of Smith, Willis, Seaton, and Van Heythusen, and among the latter those of Bar- bour, Hoffman, Blake, and Edwards. The volume, as it is now presented to the junior members of the profes- sion, will form, it is believed, a more modern and com- plete outline both of Pleading and Practice in Equity. To increase the practical value of this volume, we ap- pend to it the Rules of Practice for the Courts of Equity 6 Preface. of the ♦United States, the Statute Laws of the United States relating to Equity, now in force, and also, on ac- count of their great historical interest, the celebrated Ordinances of Lord Chancellor Bacon. The student will find it profitable to compare the prac- tice of the Court as now settled with the outline that in the beginning of the seventeenth century was chalked out by the genius of Lord Bacon. On rising from the study of these celebrated Ordinances, he will be able to appre- ciate the justice of the following beautiful eulogy upon their merit, which was pronounced by the late Justice Story before the Sufifblk Bar: — " Under the guidance of Lord Bacon, the business of Chancery assumed a regular course ; and at the distance of two centuries, his Ordi- nances continue to be the pole-star which directs the practice of that Court. A more noble homage to his memory, or a more striking proof of the wisdom and comprehensiveness of his \iews, can scarcely be imagined. And it may be truly affirmed that his Novum Organum scarcely introduced a more salutary change in the study of physics and experimental philosophy, than did his Or- dinances in the practical administration of Equity." February, 1877. ANALYTICAL TABLE. INTRODUCTION. Of the rise and progress of the equitable jurisdiction of the Court of Chancery, .... 25 This court imagined to have arisen from the Wit- tenagemote of the Saxon G-overnment, . . 25 The Wittenagemote gave rise to the Aula Regis, 26 A similar court in other European nations, . \note\ 26 The monarch at first presided in the Aula Hegis in person, and was succeeded by the Grand Justicier, 26 At the accession of William I, the Aula Regis be- came King's Court Baron, 27 This was a principal cause of the Chancellor's equit- able jurisdiction, 27 This officer was the King's secretary, aud the regis- trar of the decrees of the Aula Regis, . . .27 His authority was at first occasional, but afterward became permanent, ...... 27 This officer, among the feudal nations, as the King's secretary, granted the charters for fiefs, which was a source of much power, . . . [note'] 27 (7) 8 ANALYTICAL TABLE. His authority, however, was only appellate, and not original, until Edward I, 28 His on^inaZ jurisdiction much extended by an act in that King's reign, giving him power to frame new writs, .28 Bishop Waltham was not the inventor of the writ of subpena, 30 Ineffectual attempts of the Commons to curb the growing power of Chancery, . . . .29 The decisions of the court were for a long time de- sultory and uncertain, ..... 30 Its practice much improved by Lord Bacon, . . 31 Character of Sir Heneage Finch, ... 31 Eloquent and accurate account of the origin of equitable jurisdiction, by Sir James Macin- tosh, [note'] 31, 32, 33 Chancery interposed in early times, not from any de- fect in the common law, but to protect the weak from the strong, ..... [note'] 33 Difficulty of accurately describing the jurisdiction of Chancery, ....... 33 A copious source of its present authority is to sup- ply the defects of the common law, ... .35 An- enumeration, by Lord Redesdale, of the various grounds for the interposition of a Court of Chan- cery, [ note'] 35 Chancery compels a discovery of facts by the oath of the defendant, 36 Matters of account, fraud, accident, mistake, and trust, are more particularly cognizable in equity, . . 37 Courts of Equity are considered extraordinary tribu- nals, and only to be resorted to where the ordinary tribunals give no relief, . . . . .38 ANALYTICAL TABLE. 9 In England, at this time, the Chancellor is assisted by a Master of the Eolls and three Vice-Chan- cellors, [note] 38 The Chancellor, since 1831, relieved from matters in bankruptcy, except on appeal, . . [note] 39 The Federal Courts of the United States have equi- table jurisdiction and closely conform to the Eng- lish system, [note] 39 In most of the States the same tribunal has a com- mon law side and a chancery side, . [note] 39 CHAPTER I. OF INSTITUTING A SUIT IN EQUITY. A suit is commenced on the part of an individual by a bill ; on behalf of government, by an information, 40 The simple form of an ancient bill given in note, . 40 General description of ancient bills, . [note] 40, 41 Any person not laboring under special disability, such as infancy, coverture, or lunacy, may sue in equity, . . . • . . . .42 Husband should join with wife, unless she claims adversely to him ; but if eo, she may sue by next friend, 42 Next friend may sue for infant, but is responsible for costs, 42 Lunatic sues by his committee, .... 42 Bills are original, or not original, . . . .42. Original bills, which bring any matter before the court for the first time, may ask relief, or may not, 42 10 ANALYTICAL TABLE. The recent rules in England, and in the Supreme Court of the United States, have exemplified the form and structure of bills, . . . . 43 Convenient, in analysis, to retain the nine distinct parts, 43 1. The address of the bill. It is addressed to the Chancellor, and in the United States, to the court before which suit is brought, by its proper desig- nation, 43 2. The introduction contains the name and abode of the plaintiff; and in the courts of the United States, an averment of the citizenship of both parties, plaintiffs and defendants, . . .43 3. The premises contain a narrative of the facts of the plaintiff's case, 44 4. The charge of confederacy. JSTo good reason for its use. In the Federal Courts of the Union it may be omitted, .44 5. The charging part states and avoids the supposed defense of the defendant, but it is not necessary, 45 6. The averment of jurisdiction seems equally nu- gatory with the clause of confederacy, . . 45 7. The interrogating part prays that the parties may answer to the best of their knowledge, informa- tion and belief, 46 In this part, all necessary specific interrogatories should be preferred, . 46 Eules of the Supreme Court of the United States on interrogatories, ....... 47 8. The prayer for relief may be special or general, 47 The rules of the Supreme Court of the United States direct the plaintiff to ask for special relief, . 48 ANALYTICAL TABLE. 11 9. The prayer of process prays the writ of subpena, 48 It is presumed that in the United States, generally, the subpena issues of course, . . . .49 All persons interested in the subject-matter should be made parties, 49 Exceptions to this rule, ..... 49, 50 The objection of a want of proper parties may be made at any time, 50 Bill is signed by counsel to prevent scandal, . . 50 A bill, which seeks to remove a cause from the cog- nizance of a court of law, or which requires a court of equity to act ex parte, must be supported by affidavit, 50 A form in extenso of an original bill with all its parts, 51 The same bill framed in accordance with the rules of the Supreme Court of the United States, . 56 Various forms of the commencement of bills by par- ticular parties, 59, 60 1. To restrain proceedings at law, and for an injunc- tion, 60 Form of a writ of injunction, . . . [notej 60 2. For an account of the rents and profits of a tes- tator's real estate, 61 3. For an account of money had and received, . 62 4. For the production of deeds and papers, . 62 5. For an account of personal estate, . . .62 6. For a ne exeat, 63 Form of a writ of ne exeat, . . . [note'] 63 7. In suits against the United States or a State, . 64 8. In suits against a corporation, . . . .64 Form of affidavit to a bill, 64 Form of a bill to foreclose a mortgage, . . .65 12 ANALYTICAL TABLE. A mortgage foreclosed in this country by a sale of the land, [note] ,65 Form of a bill for specific performance of a contract to convey real estate, 66 Bill for an account of partnership dealings, for a re- ceiver, and an injunction, ..... 68 Purpose of a bill of interpleader, . . . .70 Must be verified by affidavit, .... 70 Must offer to bring the money or property into court, 71 Form of a bill of interpleader, 71 This bill not applicable in cases of bailment, the rem- edy being at law, [note'] 70 A bill of certiorari is used to remove a case from an inferior to a superior court, ..... 73 A description of it, 74 Form of the writ of certiorari, . . [note] 74 Purpose and description of a bill to perpetuate the testimony of witnesses, 75 Of the nature and requisites of a bill of discovery, 76 When an affidavit is necessary, .... 76 A form of a bill of discovery, 77 An information is exhibited by the attorney or solici- tor general, and differs very little from a bill, . 78 ANALYTICAL TABLE. 13 CHAPTER II. OF APPEARANCE TO SUIT IN EQUITY. On the filing of the bill, the subpe)ia issues, com- maudiug the dofoudaut's appoarauce, . . 80 In the Supremo Court of the Uuitod States it issues before tiling the bill, 80 This writ vohomontly opposed by the courts of law, 80 Soourity was formerly required of the plaiutiff, . 80 The form of the writ of subpeua, ... 80 The labeL an abstraet of the subpeua. is given to each of the defendants, except the last, who receives the writ itself, 82 It is rarely used in the United States, ... 82 If defendant is a peer, a Liter inissirc issues, . . 82 The form of a letter missive 83 Lord Bacon introduced this polite method, [note'] S3 By the rules of the Supreme Court of the United States, a copy of the subpeua is delivered to the defendant, or left at his house 84 The writ, when against an infant, is served on the infant himself, with a notice to guardian, . 84 Court may order other modes of service to be deemed good, under special circumstances, . . .84 Qusere whetlier service of the writ in a foreign country is good, [/io^c] So If writ is served, compulsory process maybe awarded, if defendant is in contempt, . . . .SO Modern practice usually provides for a decree pro Civi/esso. if defendant neglects to appear, . . 86 An attach iiient, the first compulsory process. . 87 14 ANALYTICAL TABLE. It is in the nature of a capias at common law, . 87 The form of an attachment in chancery, . . 87 In what an attachment differs from a capias, [note'] 87 An attachment not executed on members of parlia- ment or infanta, [note] 88 On return of non est inventus, an attachment with proclamation issues, 88 Form of this writ, 89 If this writ also be returned non est inventus, a com- mission of rebellion is awarded, . . . .89 The form of this writ, 90 If the commission be ineffectual, the court, on motion, will dispatch a sergeant-at-arms, ... 91 If defendant be taken, he is sent to prison until he clears his contempt, 91 But if he eludes the sergeant-at-arms, a sequestration issues, on motion, to seize his personal estate and the rents and profits of his real estate, . . 91 Form of a writ of sequestration, . . . i 91 This writ first used in the reign of Elizabeth, to en- force the decrees of the court, . . [note] 91 But afterward used as mesne process, . . [note] 91 A case illustrating the chain of process. . [note] 93 A distringas is the compulsory process against a cor- poration, ........ 94 The form of. a distringas, 94 If corporation continue in contempt, an alias and a pluries distringas issue, and finally a sequestration, 94 After an order for sequestration, the plaintiff's bill is taken pro confesso, 94 The sequestration answers to the primum decretum of the Eoman law, and the quantum damnifieatus of the common law, 96 ANALYTICAL TABLE. 15 It is the plaintiff's only remedy if the defendant ab- solutely refuse to appear, except when modern practice allows a decree "pro confesso, . . .95 CHAPTER m. OF DEFENSE TO A SUIT IN EQUITY. Defense may be made by disclaimer, demurrer, plea, answer, and cross bill, 98 A disclaimer is a renunciation of all interest, . . 98 Form of a simple disclaimer, 99 Seldom put in alone, [note'] 99 A demurrer lies for defects on the face of the bill, . 100 A defendant, without a demurrer, may insist on the objections covered by it at the hearing, . . 100 The use of a demurrer, 100 A demurrer should be certain, 100 In England, if a bill prays discovery and relief, a demurrer, which is good to the relief, will be so to the discovery, 101 Aliter, in the Federal Courts and New York, . . 101 The principal grounds of a demurrer to relief enu- merated, , . . 101 The principal grounds of a demurrer to discovery enumerated, 103 Form of a demurrer for want of equity, . . 103 Forms, for want of privity, for multifariousness, and for want of parties, 104 Form of demurrer to a bill of discovery, where de- fendant could be examined as a witness, . . 104 16 ANALYTICAL TABLE. Form of a demurrer coupled with an answer, . . In the Federal Courts, a demurrer must be supported by affidavit, 106 A flea is a special answer relying on some one gen- eral fact not apparent on the face of the bill, . . 107 Classes of pleas. — 1. To the jurisdiction, . .107 2. To the person of plaintiff, . 108 3. To the bill or frame of the bill, 108 4. Pleas in bar, by statute, record or matters in pais, . . 108 Form of a plea of another bill pending, . . . 109 Forms of a plea of infancy, and a plea of coverture, 110 Description and purport of an answer, . . . Ill Form of an answer, 112 Forms of titles of answers by particular parties, . 11,3 Forms of commencements and conclusions of answers, ........ 114 The answer must be sworn to by defendant, . . 115 The answer of a corporation is put in under their common seal, ....... 115 An infant answers by a guardian ad litem, and, on majority, has a day in court, .... 115 On defense by a cross bill, and its nature, . . . 115 Form of cross bill in the nature of a plea jpuis darrien continuance, 116 Form of a dfedimus potestatem in chancery to take the defendant's plea, answer, or demurrer, when he lives more than twenty miles from London, . . 118 On filing the answer, the plaintiff may set the cause down for hearing, or he may file exceptions, . . 119 ANALYTICAL TABLE. 17 CHAPTER IV. EXCEPTIONS TO ANSWER. If the answer be defective, it may be objected to by exceptions, 120 No exception to infant's answer, .... 121 Form of exceptions to answer, .... 121 If defendant admits tbeir propriety, he must put in a further answer, 122 If he does, not, the proceedings are referred to a Master in Chancery, 122 If a defendant is dissatisfied with master's report, he may file exceptions to it, 122 Form of such exceptions, 122 If defendant persist in an evasive answer, bill may be taken -pro confesso, 123 CHAPTEK V. INTERLOCUTORY PROCEEDINGS. Interlocutory applications are by motion or by peti- tion, 124 The most usual interlocutory orders relate to amend- ments of the pleadings ; the appointment of a re- ceiver ; the payment of money into court, or refer- ences to a master, 124 The court may grant leave, as of course, to amend the bill before issue, 124 2 18 ANALYTICAL TABLE. The rule is more strict as to answer or plea, . .125 The court will appoint a receiver, to prevent waste or fraud, 125 The application must be supported by affidavit, if made before answer, . . . . ... 125 Defendant will be ordered to pay money into court when balance appears due, .... 126 References to a master, numerous and useful, . 126 Masters in chancery may take an account ; may in- vestigate title ; may sell property, etc. . . 126 The form of an order for the production of papers before hearing, ....... 127 The form of an order that the plaintiff elect to pro- ceed at law or in chancery, .... 127 The form of an order to pay money into court, . 127 An order of reference to a master to appoint a re- ceiver, 128 CHAPTER VI. OF KEPLICATION AND KBJOINDER. Ancient practice in respect to the pleading after the answer, ........ 129 Special replications are out of use, . . . 129 Form of a general replication to the answer, . 130 Form of a special replication, .... 130 On filing the replication, the plaintiff serves the de- fendant with a subpena to rejoin, . . . 131 In the United States generally, the pleadings ter- minate with a replication, .... 131 The form of a rejoinder, 132 ANALYTICAL TABLE. 19 CHAPTER VII. rNTBRLOCUTORT BILLS. . Auxiliary bills only requisite after issue joined, . 133 Before issue, the bill may be amended, . . 133 Character of a supplemental bill, .... 133 A 6i7Z o/ revz'wr is used when suit abates, . . 134 Remarks on the use of this bill, .... 134 The form of a bill of revivor against the heir of a deceased mortgagor, 135 Character of an original bill in the nature of a bill of revivor, 137 Character of an original bill, in the nature of a sup- plemental bill, 137 CHAPTER YIII. OP THE EXAMINATION OF WITNESSES. The English practice greatly modified in the United States, [note'] 189 The mode of examining witnesses in equity agrees with the practice of the civil law, . . . 139 If the witness lives within twenty miles of London, the court appoints an examiner, . . . 139 If he lives beyond that distance, dedimus potestatem is granted to four commissioners, . . . 139 Form of a commission to examine witnesses, . 140 20 ANALYTICAL TABLE. After due notice, interrogatories are exhibited to the witnesses, and their answer reduced to writing, 141 Form of interrogatories exhibited in equity, • . 141 Form of the depositions by commission, . . 143 Form of depositions before an examiner, . . 144 The depositions are sealed and sent to court by a sworn messenger, ...... 145 The competency or credibility of the witnesses may be excepted to, 145 Form of articles of exception to the credit of a wit- ness, 146 CHAPTER rX. OF THE HEARING OF A CAUSE IN EQUITY, A cause may be set for hearing at the instance of either party, 148 A subpena to hear judgment is served when the cause is set down, 148 Form of this subpena, 148 The party has until the third day after the return of the writ to appear, 149 Blackstone's reason for this indulgence, . . 149 If defendant is a body corporate, a writ of distringas is issued instead of subpena, .... 149 The manner of arguing the case by counsel, . 149 If defendant neglect to appear, plaintiff may have a decree, 150 ANALYTICAL TABLE. 21 But defendant must be served with a subpena to show cause, 150 Form of a subpena to show cause, .... 150 CHAPTER X. OP A DECREE IN EQUITY. A decree may be interlocutory or final, . . 152 Why the first decree is seldom final, . . . 152 Description and purpose of & feigned issue, . . 152 When a decree may be considered final, . . . 153 Of decrees in suits against infants, . . . 154 Of decrees nisi or by default, 154 Decrees consist of three parts : — 1. The date and title. 2. The recitals. 3. The order, . . '155 A declaratory part is sometimes used,, . . . 155 A general form of a decree, 156 Form of a decree pro confesso in Ohio, . [note'] 156 Form of a decree by default, .... 157 Form of a decree for an account, .... 157 Form of a decree for specific performance, . . 158 Form of a decree in qreditor's suit, . . . 159 Form of a decree of interpleader, . . .159 Form of a decree of sale on foreclosure, . . . 160 Decrees are signed by the chancellor and enrolled, 161 22 ANALYTICAL TABLE. CHAPTEE XI. OP BE-HEARING A CAUSE IN EQUITY. Ee-hearing can only be had before signature and en- rollment of tbe decree, 163 The party proceeds by caveat and petition, . . 163 The petition must state the objections to the decree, and be signed by two barristers, .... 164 All the evidence taken in the cause may be read at the re-hearing, 164 Form of a petition for re-hearing, . . . 165 CHAPTER Xn. ON THE EXECUTION OP DECREES. Jlemarks on the ancient method of compelling the observance of a decree, .... [note'] 166 When the decree is in personam, the process is a writ of execution, and on its failure, a writ of seques- tration, 166 When the decree is in rem, after execution and at- tachment, an injunction to give the plaintiff pos- session may be awarded, 166 Form of a writ of execution in equity, . . 167 Form of a writ of injunction to deliver possession of land, 168 ANALYTICAL TABLE. 23 CHAPTER Xin. OF REVIEWING DECREES IN EQUITY. Upon what occasions a bill of review is proper, . 170 This bill can not be filed without leave of the court, unless the error complained of appear on the face of the decree, 170 Must be brought within the period which limits writs of error at law, 170 Form of a bill of review in "Hew York, . . . 171 The defendant usually demurrs to a bill for error on the record, 172 Remarks on bills to impeach a decree and to carry a decree into execution, 173 CHAPTER XIV. OF APPEAL TO THE HOUSE OF LORDS. Difference between the English and American prac- tice on appeals, [note] 174 No appeal allowed before the year 1581, . . 174 Form of a petition of appeal, .... 175 Form of a respondent's answer to the petition. . 176 Method of proceeding at the hearing before the lords, [note] 177 24 ANALYTICAL XABLB. APPEKDIX. Rules of Practice for the Courts of Equity of the United States, 179 United States Statutes relating to Courts of Equity, 216 Ordinances of Lord Bacon, 232 A SUIT IN EQUITY. INTRODUCTION. HISTOKT AND JURISDICTION OF THE COTJKT OF CHANCEET. Notwithstanding the difficulties which are supposed to impede the success of any attempt to determine the origin of our courts of equity, I am inclined to believe that no greater portion of industry is required for this purpose than has frequently been applied with success in elucidating subjects of equal antiquity and obscurity. But in an introductory discourse of this nature, so mi- nute an investigation would be improper. My intention at present is merely to furnish the reader with some pre- vious acquaintance with the nature of those courts to the •proceedings of which his attention is afterward requested; and for this purpose a very short account of their an- cient and present state will, I imagine, be thought amply sufficient. I should probably be thought inordinately fond of an- tiquity, were I to endeavor to show that the equitable jurisdiction of the court of chancery derived its source from the Wittenagemote, or grand council, of the Anglo- Saxon govern^fient. It is true, there is no direct author- ity for this opinion ; but it seems to be founded on fair and probable grounds of deduction.^ ' In the few observations which the reader is here presented with, relative to the origin and ancient jurisdiction of our courts of equity, he would not readily forgive me were I to perplex him with (25) 26 INTEODUCTION. We are informed by the records of that period that those august assemblies, when they met to deliberate on the affairs of the nation, undertook also the decision of such causes between subject and subject as they con- ceived to be of too much importance, or too great diffi- culty, for the determination of the ordinary tribunals. When the abolition of trials by ordeal and personal com- bat afterward gave rise to such frequent appeals to the court as to interfere with the more immediate and im- portant objects of its meeting, a certain number of its members appear to have been delegated for the particular purpose of discharging this inferior duty. This delega- tion, from the place in which it usually assembled, was denominated the Aula Eegis} The weight and authority of the monarch who at first presided there in person, enabled him to decide each case according to its intrinsic merit, without regard to the technical forms of proceeding which had prevailed in the ordinary courts of justice ; but afterward, when his increasing avocations in the affairs of government ren- dered it inconvenient for him to attend to these subor- dinate concerns, and the business of the court developed on the grand judider, the authority of this tribunal be- references to the various authorities from which they are extracted. It may be proper, however, to say, in general, that those upon which I have principally relied are, Glanville, Spelman, Coke, and Madox. I have occasionally found it necessary to resort to the ancient re- cords whence those treatises were compiled; and, in digesting the materials which I met with in these several authorities, I have de- rived no small assistance from the ingenious work of Prof. Millar on the English government. ^ It is worthy of remark, as an example of the invariability of human nature, and of similar causes being productive of similar ef- fects, that a like institution was formed, and by like degrees, in many other European kingdoms. Thus, the Aulic council arose from the diet of the German Empire, and the Cour de Roy from the ancient parliament of France. See Millar, 328. INTRODUCTION. 27 came more restrained. The justicier, to avoid the im- putation of partiality or inconsistency, found himself obliged to regulate his proceedings, in a great measure, by the rules and precedents established in the courts of common law. When, therefore, an adherence to this maxim had compelled hira, in consequence of former precedents, to give a judgment which was evidently in- equitable or oppressive, the party aggrieved was naturally instigated to seek redress by an appeal to the king him- self, who, as the fountain of justice, was enabled to ad- minister such relief as the nature of the case might re- quire. At the early period we now allude to, when the rules of law were few and simple, and the objects of dispute comparatively neither numerous nor important, applica- tions for this purpose were probably seldom necessary. But on the accession of William I, when the Aula Regis became the king's ordinary court baron, and by the ex- tension of the feudal tenures drew to itself the greater part of the judicial business of the nation, interpositions of this sort occasioned by the more various instances of imperfection in the rules of the common law, to which the multiplication of suits before the justicier naturally gave rise, became so frequent as to be deemed burden- some to the monarch. They were therefore left by de- grees to the decision of the chancellor, who, being the king's secretary and also registrar of the decrees of the Aula Regis, was supposed to be more particularly con- versant with the natui'e of judicial investigations.' ^A similar jurisdiction appears to have been acquired by the same officer in many other nations of Europe. As a reason for this, it may be observed that when the nobility, by the prevalence of the feudal laws in Europe, became vassals to the crown, and held their fiefs by charter from the king, the power of granting those deeds became the source of great influence, and caused the chancellor, to whom, as secretary of the king, it belonged, to be considered as one of the principal officers of state. 28 INTRODUCTION. When, from the increase of civility and refinement in the nation, the rigor of the common law began to be more sensibly felt, and consequent applications to the chancellor more frequent and importunate, the necessity of this extraordinary jurisdiction became apparent. Thus it at length arose from an occasional to an established and permanent authority. But the reader perceives that not- withstanding the frequent resort to this tribunal, it does not as yet appear to have exercised an original, but only an op/ieZ^afe, jurisdiction, founded on the oppressive de- cisions occasioned by the limited authority of the inferior courts. But as the principles of natural justice, as well as of national polity, required that an immediate and di- rect appeal, without the intervention of any inferior court, should be allowed to that tribunal, which was alone calculated to afford relief, we find that so early as the reign of Edward I the chancellor began to exercise an original and independent jurisdiction as a court of equity in contradistinction to a court of law. Fortunately for the growth of this new jurisdiction, it received a considerable accession of authority by an act passed in the thirteenth year of that king's reign. By this statute the chancellor was empowered to frame new writs, adapted to the particular circumstances of any new cases which might arise. These writs, agreeably to the intentions of the legislature, were at first directed to such of the courts of common law as were thought best calculated to try the merits of the question in contro- versy. Cases, however, soon arose which neither of those courts, by their ordinary mode of procedure, ap- peared competent to investigate. When this happened, the chancellor (not averse, perhaps, to the extension of his own power) ventured to summon the parties before himself, and determine their differences of his own proper authority. Having assumed a cognizance over one sort of cases, it was easily extened to others, and INTRODUCTION. 29 Bishop "Waltham, chancellor of Richard II, under color of the before-mentioned statute, and to avoid the effect of the statute of mortmain upon superstitious uses, is said to have devised the modern writ of suhpena, return- able in chancery.* This process was afterward, by fictitious suggestions, extended to such a variety of cases properly cognizable by the courts of common law only, that in the two sub- sequent reigns we find innumerable petitions presented to the Commons against the growing jurisdiction of this newly-erected tribunal. Some trifling regulations were made, but nothing effectual was done to remedy the grievance complained of till the 15th Henry VI, when it was provided that no writ of subpena should from thence- forth be granted till surety was found to satisfy the party grieved for his damages and expenses, in case the com- plainant did not substantiate the allegations of his bill. By an act passed in the 31st year of the same reign, it is also declared, that " no matter determinable by the law of this realm shall be determined in any other form than after the course of the same law in the king's courts having determination of the same." But these statutes, though they curbed the excess, indirectly established the legitimacy of the court ; and we find, in consequence, that in the time of Edward IV, the process by bill and subpena was become its daily practice.^ " This, however, did not extend very far, for in the ancient treatise entitled Diversite des Courtes, supposed ^See Roll. Pari. 3 Henry V. But this writ (notwithstanding the suggestions of the Commons) seems rather to have been adopted by Waltham for this particular purpose than invented by him ; for it is evident, from an act passed in the preceding reign, that it was by no means an unusual process. See also Spence on Equitable Juris- diction, Vol. I, page 369. '' 3 Blackstone, 53. The following extract, with which I shall close this short history I have given of the court of chancery, is taken entirely from the elegant work here referred to. 30 INTRODUCTION. to have been written very early in the sixteenth century, we have a catalogue of the matters of conscience then cognizable by subpena in chancery, which fall within a very narrow compass.' No regular judicial system pre- vailed at that time in the court, but the suitor, when he thought himself aggrieved, found a desultory and uncer- tain remedy according to the private opinion of the chancellor, who was generally an ecclesiastic, or some- times (though rarely) a statesman, no lawyer having sat in the court of chancery from the times of the Chief Jus- tices Thorpe and Knyvet, successively chancellors to Edward III, in 1372 and 1373, to the promotion of Sir Thomas More by King Henry VIII, in 1530.^ After this time the great seal was indiscriminately committed to the custody of lawyers, or courtiers, or churchmen, ac- cording as the convenience of the times and the disposi- tion of the prince required, till Sergeant Puckering was made lord keeper, in 1592 ; from which time till the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was intrusted to Dr. Williams, then Dean of Westminster, but afterward bishop of Lincoln, who had been chaplain to Lord Ellesmere, when Chancellor Lord Bacon, who succeeded Lord Ellesmere, reduced the prac- - Though the subjects, acknowledged at this early period to be cognizable by subpena, must indisputably have been exceedingly few when compared with the present extensive jurisdiction of our courts of equity, yet the authority which the learned judge here refers to can not be relied upon as furnishing any conclusive evidence of their ancient limits. '' Sir Edward Coke observes, seemingly with some exultation, " that in perusing the rolls of Parliament in the times of these lord chancellors, we find no complaint of any proceeding before them ; but soon after, when a chancellor was no professor of the law, we find a grievous complaint by the whole body of the realm — and a petition that the most wise and able men in the realm be made chancellors ; and that they seek and redress the enormities of the chancery." 4 Inst. 79, INTKODTJCTION. 31 tice of the court to a more regular system ; but did not sit long enough to efl'eot any considerable revolution in the science itself — and few of his decrees which have reached us are of any great consequence to posterity. His successors in the reign of Charles I did little to im- prove upon his plan ; and even after the restoration, the seal was committed to the Earl of Clarendon, who had withdrawn from practice as a lawyer near twenty years, and afterward to the Earl of Shaftesbury, who though a lawyer by education, had never practiced at all. Sir Heneage Finch, who succeeded in 1673, and became after- ward Earl of Nottingham, was a person of the greatest abilities and most uncorrupted integrity, a thoi'ough master and zealous defender of the laws and constitution of his country, and endowed with a pervading genius that enabled him to discover and pursue the true spirit of justice, notwithstanding the embarrassments raised by the narrow and technical notions which then prevailed in the courts of law, and the imperfect ideas of redress which had possessed the courts of equity. The reason and necessities of mankind, arising from the great change in property, by the extension of trade and the abolition of military tenures, co-operated in establishing his plan, and enabled him in the course of nine years to build a system of jurisprudence upon wide and rational founda- tions, which have been extended and improved by many great men who have since presided in chancery. Erom that time to this, the power and business of that court and business of that court have increased to an amazing degree, till we may venture to assert that it is at length governed by one of the most perfect systems of equitable jurisprudence now existing in Europe."^ ^The following brief sketch of the origin of equitable jurisdic- tion, taken from the Life of Sir Thomas More, is more accurate. The author (Sir James Macintosh) prepared it, with the advantage of all the light which has been shed upon the subject, by the recent 32 INTEODUCTION. It remains for us to inquire what matters are cogniza- ble in a court of equity. Accurately to describe its juris- diction Sir John Mitford observes to be a task so difficult, investigations of the ancient records. "The office of chancellor was known to all European governments, who borrowed it, like many other institutions, from the usage of the vanquished Romans. In those of England and France, which most resembled each other, and whose history is most familiar and interesting to us, the chan- cellor, whose office had been a conspicuous dignity under the Lower Empire, was originally a secretary, who derived a great part of his consequence from the trust of holding the king's seal, the substi- tute for subscription under illiterate monarchs, and the stamp of legal authority in more cultivated times. From his constant access to the king, he acquired everywhere some authority in the cases which were the frequent subject of complaint to the crown. In France he became the minister of state, with a peculiar superin- tendence over courts of justice, and some remains of a special ju- risdiction, which continued until the downfall of the French monarchy. In the English chancellor were gradually united the characters of a legal magistrate and a political adviser ; and since that time the office has been confined to lawyers in eminent prac- tice. He has been presumed to have a due reverence for the law, as well as a familiar acquaintance with it, and his presence and weight in the councils of a free commonwealth have been regarded as links which bind the state to the law. One of the earliest branches of the chancellor's duties seems, by slow degrees, to have enlarged his jurisdiction to the extent which it has reached in modern times. From the chancery issued those writs which first put the machinery of law in motion, in every case where legal re- dress existed. In that court new writs were framed, when it was fit to adapt the proceedings to the circumstances of a new case. When a case arose in which it appeared that the course and order of the common law could hardly be adopted by any variation in the forms of procedure, to the demands of justice, the complaint was laid by the chancellor before the king, who commanded it to be considered in council — a practice which, by degrees, led to a reference to that magistrate by himself To facilitate an equitable determination in such complaints, a writ was devised called the writ of subpena, commanding the person complained of to appear before the chancellor and answer the complaint. The essential words of a petition for this writ, which in process of time has be- come of so great importance, were in tha reign of Richard III, as INTRODUCTION. 33 that " those who have attempted it have generally failed." Great respect is undoubtedly due to the opinion of one whose extent of erudition in this branch follows: "Please it therefore, your lordship, considering that your orator has no remedy by course of the common law, to grant a writ of subpena, commanding T. Coke to appear in chancery at a certain day and upon a certain pain, to be limited by you, and then to do what shall by this court be thought reasonable and according to conscience." The form had not been materially different in the earliest instances, which appear to have occurred from ] 380 to 1400. It would seem that this device was not first employed, as has been hitherto supposed, to enforce the observance of the duties of trustees who held lands, but for cases of an extremely different nature, where the failure of justice in the ordinary courts might ensue, not from any defect in the common law, but from the power of turbulent barons, who in their acts of outrage and lawless vio- lence, bade defiance to all ordinary jurisdiction. In some of the earliest oases, we find a statement of the age and poverty of the complainant, and of the power and even learning of the supposed wrong-doer — topics addressed to compassion, or at most to equity in a loose and popular sense of the word, which throw light on the original nature of this high jurisdiction. It is apparent from the earliest cases in the reign of Richard II., that the occasional relief proceeding from mixed feelings of pity and of a regard for sub- stantial justice, not effectually aided by law, or overpowered by violence, had then grown into a regular system, and was subject to rules resembling those of legal jurisdiction. At first sight it may appear difiSoult to conceive how ecclesiastics could have molded into a regular form this anomalous branch of jurisprudence. But many of the ecclesiastical order, originally the only lawyers, were eminently skilled in the civil and canon law, which had at- tained an order and precision unknown to the digests of barbarous usages then attempted in France and England. The ecclesiastical chancellors of those countries introduced into their courts a course of proceeding very similar to that adopted by other European nations, who all owned the authority of the canon law, and were enlightened by the wisdom of the Roman code. The proceedings in chancery, lately recovered from oblivion, show the system to have been in regular activity about a century and a half before the chancellorship of Sir Thomas More. "It must not be supposed that men trained in any system of jurisprudence, as were the ecclesiastical chancellors, could have 3 34 INTRODUCTION. of jurisprudence is so justly acknowledged ; and it is, probably, a fortunate circumstance for the author of the present sketch, that he is not called upon, by the nature of his treatise, to enter minutely into a subject which that learned gentleman appears to have considered with so much reluctance ; specifically to enumerate every object of judicial investigation which in the words of Grotius, " lex non exade definit sed arbiirio boni viri per- mittit," were indeed not only difficult, but absolutely impracticable. It is, nevertheless, presumed that by a proper attention to the nature and constitution of our courts of equity, and the mode of dispensing justice which there prevails, the reader will find but little diffi- culty to determine in any given case (and this seems to been indifferent to the inconvenience and vexation which neces- sarily harass the holders of a merely arbitrary power. Not having a law, they were a law unto themselves; and every chancellor who contributed by a determination to establish a principle, was instru- mental in circumscribing the power of his successor. Selden is, indeed, represented to have said, ' that equity is according to the conscience of him who is chancellor; which is as uncertain as if we .made the chancellor's foot the standard for the measure which we 'Call a foot.' But this was spoken in the looseness of table-talk, and under the influence of the prejudices then prevalent among com- mon law lawyers against equitable jurisdiction. Still, perhaps, what he said might be true enough, in his time, for a smart saying; but iin process of years, a system of rules has been established which 'Ijas constantly tended to limit the originally discretionary powers of the chancery. Equity, in the acceptation in which that word is used in English jurisprudence, is no longer to be confounded with that moral equity which generally corrects the unjust operation of law, and with which it seems to have been synonymous in the days of Selden and Bacon. It is a part of law formed from usages and determinations which sometimes differs from what is called ' com- mon Jaw' in its subjects, but chiefly varies from it in its modes of proof, of trial, and of relief; it is a jurisdiction so irregularly formed and often so little dependent on general principles, that it can hardly be defined or made intelligible otherwise than by a minute enumeration of the matters cognizable by it." INTRODUCTION. 35 be the real purpose of such an inquiry), whether it be more properly cognizable in a court of equity or a court of law. The original institution of our courts of equity, as independent jurisdictions, was, as we have seen, to sup- ply the defects of the common law. This priciple is still adverted to in the practice of those courts, and affords a copious source of their present authority. It extends to all those cases in which the courts of law can afford either no redress at all, or not that particular redresa which equity or natural justice requires.^ Therefore, 'Equity jurisdiction, says Lord Eedesdale in his Treatise on Pleading, is to be exercised — 1. Where the principles of law by which the ordinary courts are guided give a right, but the powers of those courts are not sufficient to afford a oornplete remedy, or their modes of proceeding are inad- equate to the purpose. 2. Where the courts of ordinary jurisdiction are made the instru- ments of injustice. 3. Where the principles of law by which the ordinary courts are guided give no right, but upon the principles of universal justice the interference of the judicial power is necessary to prevent a wrong, and the positive law is silent. Tt may also be collected that courts of equity, without deciding upon the rights of parties, administer to the ends of justice by assuming a jurisdiction — 4. To remove impediments to the fair decision of a question in other courts. 5. To provide for the safety of property in dispute pending a liti- gation, and to preserve property in danger of being dissipated or destroyed by those to whose care it is by law intrusted, or by per- sons having immediate but partial interests. 6. To restrain the assertion of doubtful rights in a manner pro- ductive of irreparable damage. 7. To prevent injury to a third person by the doubtful title of others. 8. To put a bound to vexatious and oppressive litigation, and to prevent multiplicity of suits. Further, courts of equity, without pronouncing any judgment which may affect the rights of parties, extend their jurisdiction — 36 INTRODUCTION. where a person had been discharged under an insolvent law, by which his body was protected from arrest, and his property happened to be of such a nature as not to be subject to the control of a court of law, the court of chancery interfered and removed the impediments to the plaintiff's judgment. So where a lady's jointure was so circumstanced that payment could not be enforced at law, it was decreed in equity. Thus again, where substantial justice requires that a contract be strictly and specifically performed, a court of equity has authority to compel such performance, because a pecuniary recom- pense, which is all that a court' of law can give, would be an incomplete satisfaction ; et sic de similibus? 9. To compel a discovery or obtain evidence which may assist the decision of other courts. 10. To preserve testimony when in danger of being lost before the matter to which it relates can be made the subject of judicial inves- tigation. ^From the narrow principles embraced in early times by the courts of strict law, no complaint was regarded unless the plaintiff had suffered in his pecuniary interests; and, consequently, on the breach of contract, nothing further could be claimed than repara- tion for the damage incurred. In a more equitable view, it appeared that every reasonable and innocent purpose of the contractors ought to be enforced, although the loss, perhaps, arising from the failui-e of performance could not be estimated in money. A court of equity, therefore, was accustomed to decree that a contract should be car- ried into express and strict execution. Millar, 482. ^A similar principle seems to govern the construction of mort- gages and other securities for the repayment of money, and also the technical trvsi or second use, though by some writers these are classed under separate heads of jurisdiction. See 3 Blac. Com. 436, 439. The interference of courts of equity (concurrently with those of law) in cases of partition, assignment of dower, and account, may also be justified on a like principle. For, though courts of law have sutfioient authority to investigate subjects of this nature, yet the established modes of proceeding by which those courts are regu lated, necessarily subject the parties to great inconvenience and delay. We may, however, remark, with Sir J. Mitford, that the courts INTRODUCTION. 37 We have also seen that as well before as after the court of chancery had acquired an original jurisdiction, it was filled by ecclesiastics. These naturally entertained a predeliction for the civil, as connected with the canon or ecclesiastical law. They consequently adopted its rules and principles in their mode of dispensing justice; and (agreeably to the practice of that law) compelled by the oath of the defendant himself, a discoveiy of the facts with which he was charged;' hence arose another fertile branch of the jurisdiction of courts of equity, extending to every case where the facts required to sup- port it rest solely in the breast of the defendant. From this source, it seems to have arisen that matters of account, fraud, accident, and mistake, are said in the books to be the peculiar objects of courts of equity, a full investigation of those subjects frequently requiring a disclosure from the party himself. But it should be remarked that where this is not the case, and effectual of equity, having gone the length of assuming jurisdiction in a variety of complicated cases of account, dower, and partition, seem by degrees to have been considered as having in these subjects a con- current jurisdiction with the courts of common law, in cases where no difficulties would have attended those proceedings in those courts. This observation will apply to a variety of other cases at present cogniza- ble in our courts of equity. 'The imperfect notions of justice entertained by our ancestors when just emerging from barbarism (a period of society at which prejudice seems to be at its height, and alternately hurries men into both the extremes of absolute insensibility and fastidious refinement), led them to imagine that it was in every case hard to oblige a man to furnish evidence against himself This mode of examination was, therefore, wholly rejected by the common law. But the purer ideas of equity which prevailed in the later period of the institution of our courts of equity, gave rise to a mode of rea- soning far more consonant with justice, viz : that if the party were innocent of the charge alleged against him, he could not be hurt by an examination; but if on the other hand he were guilty, it was irreconcilable to every true principle of justice that he should be screened from the laws by such refined notions of delicacy. 38 INTRODUCTION. relief can be granted by a court of law, they are so far from being the peculiar objects of courts of equity, that those courts will generally refuse their assistance/ For want of attending to this distinction it has been incau- tiously said by a most able and ingenious writer, " that the court of chancery claims exclusive jurisdiction in all matters of trust and confidence." Whereas, various species of trusts, as deposits, and all manner of bailments, and more especially the implied contract, so beneficial and useful, of having undertaken to account for money received to another's use, are peculiarly cognizable in a court of law. Upon the whole, therefore, the reader perceives that courts of equity, being extraordinary tribunals, estab- lished for the purpose of supplying the defects which the increase of commerce and social connections gradually discovered or created in the ordinary courts of law^he has only to consider whether the particular case which is the subject of his contemplation can or can not be fully investigated, and receive a complete and effectual decision, in the ordinary courts of law. If it can, to them he must resort, and in the contrary event only is he justiiied in appealing to the extraordinary tribunals of equity, which assume jurisdiction in those eases only which " are not within the bounds or beyond the pow- ers of ofAer jurisdictions."^ 'And in one case of fraud, that of obtaining a will by imposition, the courts of equity will not interfere, though discovery be sought. 3 Bro. Par. Cas. 358. ^In England the chancellor is assisted in the exercise of his equitable jurisdiction by a master of the rolls and three vicechan oellors. The master of the rolls is an oflScer first appointed in the reign of Henry VIJI, but with a jurisdiction greatly enlarged by recent statutes. In consequence of the vast amount of business in the court of chancery, an assistant chancellor was created in 1813, under the title of Vioe-Chancellor of England. In the year 1841 it was deemed expedient, for the same reasons, to create two addi- INTRODUCTION. 39 Having completed the general idea which I proposed to give of the leading objects of jurisdiction cognizable in our courts of equity, I now arrive at the process by which they are to be obtained. tional vice-chancellors, and to transfer the equity jurisdiction of the court of exchequer to the court of chancery. There are now, therefore, five judges who preside and administer justice in the court of chancery: the lord chancellor (who is the highest judicial character in the kingdom), the master of rolls, and three vice- chancellors. These subordinate ofGcers sit in separate courts and exercise their jurisdiction severally; yet, together with the lord chancellor, they constitute one court of chancery, in which all or- ders and decrees, though moit commonly made by the master of rolls or vice-chancellor, require the signature of the chancellor, to whom an appeal also lies from the decisions of the inferior judges. But such appeals are, in strictness of speech, re-hearings, the chan- cellor being by legal fiction supposed to be present in every departr ment of the court of chancery. The re-hearing of such appeals, and incidental applications, or motions, in original causes, constitute the ordinary business of the lord chancellor, it not being the usual practice to bring causes before him in the first instance. Since 1831 the chancellor has been relieved, except in cases of appeal, from the burdensome jurisdiction in bankruptcy, which formerly de- volved upon him. A court of review was at that time established, to which was referred all matters in bankruptcy, with the qualifi- cation before expressed, consisting of a chief judge, three other judges (since limited to two), and six commissioners. In the United States the federal courts are invested with juris- diction in "all cases of equity" arising between certain classes of per- sons enumerated in the federal constitution. In ascertaining what is a case proper for equitable cognizance, and in directing the mode of procedure, these courts have closely conformed to the principles and practice of equity jurisprudence as administered in England. In some of the states of the union distinct courts of chancery are established, but in the greater number the same tribunal sits as a court of common law, and also as a court of equity, exercising a ju- risdiction somewhat analogous to that which was formerly possessed by the court of exchequer. 40 ON INSTITUTING CHAPTEE I. ON INSTITUTING A SUIT IN EQUITY. A SUIT in equity is commenced by preferring to the court having jurisdiction, a bill or petition, setting forth the facts on which the claim for redress is founded, and praying such relief as the nature of the case may require. This bill or petition answers to a declaration at common law, and to the libel of the civil law. When exhibited on behalf of the government, by its proper officer, it is called an information. In ancient times, when appli- cations to equity for relief were comparatively rare, bills were very brief and simple in their structure.'^ But as ' It may not be amiss to give here a form of an ancient bill. We copy it from the proceedings of the Record Commission. It was filed in the reign of Henry V., to compel. a defendant to surrender a messuage which was the inheritance of the plaintiff, Katharine. The reader will perceive in how small a compass the whole is con- tained, and yet how completely it takes in the equity of the case. The bill belongs to what is called by Spence, " the obsolete juris- diction" of the court. " To ihe Reverend father in God, the Bishop of Winchester, Chancellor of England : — "Beseecheth humbly your poor orator, John Bell, of Calls, soldier, and Katharine, his wife, that whereas William Atte Wode, other- wise called William Atte Downe, of Rochester, father to the said Katharine, since dead, heretofore was seized in his demesne, as of fee of one messuage with the appurtenances in Rochester — situated in the churchyard there — the which William in the feast of St. Michael, in the twenty-second year of the reign of King Richard II, since the conquest, let to farm to one Simon Stelhard, of Gill- ingham, the same messuage with the appurtenances, for term of seven years the next ensuing, for a certain sum to him annually to be paid ; the which Simon, within the first two years, was ousted by the executors of the said William, because he would not attorn to A SUIT IN EQUITY. 41 the business of the court, expanding with the growing wants of society, increased in quantity and importance, they gradually assumed a more technical form ; until them in the payment of the. rent of the said messuage — the which messuage was since then several times alienated to divers persons, and now so it is, very gracious lord, that one Piers Savage, now occu- pier of the same messuage, for the which he hath not paid more than marks, hath oftentimes been required to deliver the same to the said John and Katharine — as the heritage of the same Katha- rine — and he hath not delivered the same nor yet will, but detains it in destruction of their poor estate and perpetual disherison of the same Katharine, if they should not obtain remedy by your gracious aid in this behalf — and the which John and Katharine are so poor, and the said John so ill, that they can not pursue the common law. Please your very gracious lordship to consider the premises, and thereupon to grant a writ to the said Piers, to appear before you at a certain day upon a certain pain, by you to be limited, to answer of the matter aforesaid, and to do right as good conscience de- mandeth it, and this for love of God, and in work of charity." The following general account of these ancient bills is taken from Spence's History of Equitable Jurisdiction, vol. 1, page 367 : " The plaintiff in his bill simply detailed the facts. It was not necessary that the bill should use any particular phraseology, or that it should define or describe the cause of suit in any set or defi- nite terms, as in a declaration at law : it was not founded on any regula juris ; it frequently sought relief against some rule of law. All that the plaintiff had to show was, that his was a case which ought to be entertained under the powers given by the general del- egation. The bills almost universally pray a subpena, sometimes a writ of habeas corpus cum causa, or writ of certiorari alone ; some- times for a subpena as well as one or other of those writs ; in some instances a sergeant-at-arms, to bring up the defendant, is prayed for ; sometimes an injunction. Some of the bills pray for surety for the peace as well as other relief; many of the bills simply ask for relief generally. In on instance the bill consists of interrogo- tories, upon which it prays that the defendant may be examined. The bills always conclude in terms of supplication, as, 'for the rev- erence of God and for work of charity,' the plaintiff sometimes adding, 'and he shall ever pray for you;' and your petitioner shall ever pray,' etc., is still appended to every petition to the chan- cellor. In ancient times the subpena was not issued unless the case stated in the bill was considered to warrant it, and the chancellor 42 ON INSTITUTING pleading in equity has at length attained the certainty and refinement of a science. Any person, whether natural or artificial, not laboring under some special disability, such as infancy, coveture, or lunacy, may institute a suit in equity. A married woman can not ordinarily sue in equity, any more than at law, without the assent and co-operation of her husband. Where, however, she claims adversely to her husband, any other person, with her consent, may file a bill on her behalf, as her next friend. In the case of infancy, any person who is responsible for costs, may institute a suit for the protection of the infant's rights, with or without his assent. An idiot or lunatic must sue by the com- mittee to whom his estate has been intrusted. Bills vary in their form and denomination, according to the objects for which they are exhibited. Those which bring any matter before the consideration of the court for the first time, are called original bills. Any other bills which may be filed during the progress, or even after the determination of a suit, are termed by way of distinction, bills not original. The latter class will form the subject of consideration in a future chapter, when we reach that stage in the history of a suit at which they are ordinarily preferred. Original bills are usually divided into such as pray relief from the court, and such as do not. In a general sense, every bill in equity asks relief; but those bills only are so called, in technical language, which seek for an adjustment of the matter in controversy in that suit. Bills of discovery, and bills to perpetuate the testimony of witnesses, are not con- sidered as belonging to this class, their whole object being to obtain the means of prosecuting or defending some right, in another forum, and at a future time. sometimes took the advice of some of the judges on the subject. Sometimes a letter was first written by the chancellor, urging the defendant to do justice to the plaintiff." A SUIT IN EQUITY. 43 The ordinary form and structure of a bill in equity, though not originally prescribed by any positive regula- tions, has been long established by usage. The rules which have recently been promulgated by the superior courts of chancery in England, and by the Supreme Court of the United States, have introduced many changes in the ancient precedents, and if generally followed, will tend to reduce pleading and practice in equity to the simplicity and certainty of a written code. It was formerly supposed that nine distinct parts were necessary to every bill in equity ; and although some of these are now admitted to be useless, it will be convenient, in analyzing the bill, to retain the ancient division. 1. Address of the Bill. In England, the bill is addressed to the lord chancellor, or other person, having for the time being the custody of the great seal. In the United States, the bill is usu- ally addressed to the judge or justices of the court in which the suit is brought, by their proper designation. In the Circuit Court of the United States, the direction would be, " To the Honorable, the Judges of the Circuit Court of the United States, within and for the District of , sitting in Equity." 2. Names and Address of the Plaintiffs. This part of the bill, which is called the introduction, should state the name, description, and place of abode of the plaintiff, and the character in which he sues, whether in his own behalf or in autre droit. These state- ments are material, both to fix the identity of the parties and to enable the defendant to resort to the plaintiff for the payment of costs, or compliance with any other order which may be made during the progress of a cause. In suits brought in the courts of the United States, it is also necessary to set forth, in the introductory part of the bill, 44 ON INSTITUTING the citizenship of all the parties thereto, both plaintiffs and defendants ; for those courts have no jurisdiction unless it is distinctly shown upon the face of the bill that the controversy arises between citizens of different states. 3. The Premises or Stating 'part of the Bill. This part of the bill should contain a narrative of all the facts upon which the right of the plaintiff' to sue de- pends, although it is not necessary to charge minutely the circumstances which tend to establish such facts. While these statements should not be extended to an unnecessary length, as by the insertion of deeds or other writings in hcec verba, when the substance would be suf- ficient, they should be so full and explicit as to show a case proper for the cognizance of the court ; and for this purpose, all the material circumstances of time, place, and manner should be averred with precision and cer- tainty. But the plaintiff' is not required to set forth any matters of which the court is presumed judicially to possess full knowledge. 4. Charge of Confederacy. This part of the bill charges that the defendants, and divers other persons unknown at present, but whose names, when discovered, it is prayed may be inserted in the bill, have combined and confederated together to de- fraud the plaintiff' of his rights. This clause, upon th§ general principles of pleading, would seem entirely useless and nugatory, and in the Supreme Court of the United States the rules of practice leave it optional with the plaintiff to use it or not. It is said to have arisen from a two-fold error : first, that parties could not be added to a bill by amendment, whereas, there never was a time when this could not have been done ; and second, that the allegation of a confederacy would be sufficient, of itself, to sustain the jurisdiction. But as all cases of A SUIT IN EQUITY. 45 confederacy and combination, considered simply as such, appear to be equally cognizable at law, it is evident that a mere allegation of confederacy without other equitable matters to support it, could never authorize a court of equity to exercise its extraordinary juinsdiction. 5. Charging Part. This part of the bill alleges the pretenses which it is supposed that the defendant will set -up for his excuse or justification, and then charges other matters to dis- prove or avoid them. It is used for the purpose of ob- taining a discovery of the defendant's case, or of putting in issue some matter which it is not for the interest of the plaintiff to admit. The introduction of this part of the bill as a distinct allegation is comparatively recent, and is wholly unnecessary in any case. It arose from a desire to avoid the delay and expense attending the use of special replications and rejoinders. The rules of the Supreme Court of the United States make it optional with the plaintiff to include this portion of the bill in either the narrative or the stating part, or to dispense with it entirely. 6. Averment of Jurisdiction. This clause avers that the acts complained of are con- trary to equity, and injure the plaintiff, and that he can have no relief save in a court of equity. This averment was originally intended to give the court jurisdiction of the cause ; but as no assertion of this kind will induce the court to take cognizance of a case which does not come properly within its customary and established jurisdiction, it seems equally nugatory with the clause of confederacy. Courts of equity, it may be recollected, like courts of law, are guided in respect to the range of their jurisdiction by fixed and invariable bounds, founded, in some cases, on the principles and original constitution 46 ON INSTITUTING of those courts, and in others, on immemorial usage ; but from which they are in no case justified in departing. In order, therefore, to entitle the plaintifi'to its assistance, it is strictly necessary that he make out such a case by his bill as does, in fact, authorize the court to take cog- nizance of the suit. 7. Interrogating Part. The bill having shown the title of the plaintifl" to re- lief, and the proper jurisdiction in the court, goes on to pray that ths parties complained of may answer all the matters therein set forth, not only according to their positive knowledge of the facts stated, but also accord- ing to their remembrance, the information they may have received, aud the belief they are enabled to form on the subject. Here the bill (after prayer of process) anciently closed ; this general requisition being found sufficient, it was supposed, to procure the discovery sought for. But the ingenuity of modern times having discovered the possibility of answering the terms without replying to the substance of a question, it has become necessary to pre- fer specific interrogatories respecting each particular fact material to be answered ; and the better to guard against evasion, it is usual to direct those questions not only to the substantive fact itself, but to every circumstance which by possibility might have accompanied it. But the student should observe that as these interrogatories were introduced for the purpose of obtaining a full and sufficient answer to the charges of the bill, no other are proper to be inserted than such as expressly refer to some previous matter therein contained. But upon a general statement of a fact, every circumstance connected with it, tending to prove or disprove it, may be inquired into. It is not to be supposed that the general interrogatory in a bill is not sufficient to entitle a party to a full and ex- plicit answer. It is, however, often difficult to make a A SUIT IN EQUITY. 47 statement with such precision and minuteness as to ap- prise the defendant that under a general interrogatory an answer is wanted to circumstances but remotely con- nected with the fact stated. Special interrogatories are therefore important to enlarge the general charge of a fact, and extend it to all those collateral and minute cir- cumstances which, however material, the defendant may easily evade, or, perhaps, honestly suppose that he is not called upon to answer. The Supreme Court of the United States have introduced some important changes by their recent rules into the structure of this part of the bill. They have provided that no defendant shall be bound to answer any statement or charge in a bill, unless specially and particularly interrogated thereto ; that these inter- rogatories shall be divided as conveniently as may be, and numbered consecutively — 1, 2, 3, etc. ; and that the interrogatories which each defendant is required to answer shall be specified in a note at the foot of the bill, which note shall be considered a part thereof. 8. The Prayer for Belief. The prayer for relief is special, or general. The former is for that particular relief to which the plaintiff con- siders his case entitles him. The latter is generally for such relief in the premises as shall be agreeable to equity. The use of the general prayer is, that if the plaintiff in his special prayer has mistaken the relief to which he is entitled, the court may yet grant him that which his case warrants; or it may be resorted to, to extend and make more effectual the specific relief sought. It can therefore never be safely or properly omitted, being, as an eminent counsel used to say, the best prayer after the Lord's prayer. Unless the plaintiff asks for an injunction, or a writ of ne exeat, the mere prayer for general relief will be sufiicient to entitle him to such a decree as his case requires ; provided that the particalar 48 ON INSTITUTING relief which, is asked at the bar is authorized by the facts stated in the bill. The usual and most convenient practice is to include both prayers in the bill, first stat- ing the specific nature of the decree which the plaintiff desires, and adding a prayer for such other or further relief as may be warranted by the circumstances of the case. This course is prescribed by the rules of the Su- preme Court of the United States ; and they also direct, in conformity with the general principles of pleading, that if an injunction, or writ of ne exeat regno, or any other special order pending the suit is required, it shall be specially asked for. 9. Prayer of Process. To attain the ends of the suit, the bill in the last place prays that the writ of subpena may issue, requiring the defendants to appear and answer the matters alleged against them, and abide the determination of the court on the subject. The Supreme Court of the United States, in their rules of practice, have directed that the prayer for process of subpena in the bill shall contain the names of all the defendants named in the introduc- tory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon as justice may require, on the return of the pro- cess. They have also abolished the English rule, which requires that a plaintiff who has asked for ah injunction or any other special order should repeat the same in his prayer for process. Where a corporation is made defendant, the bill should pray that it appear according to law. According to the English practice those persons only are considered as parties to a bill against whom process is prayed, issued, and served. It is presumed that in the United States generally, as in the State of E'ew A SUIT IN EQUITY. 49 York, the writ of subpena issues of course without any- formal prayer, and that, as a consequence, the strictness of the ancient rule has been relaxed, and a person may be impleaded and treated as a defendant by a clear state- ment in the bill to that efl'ect, without praying for the subpena against him. In this connection it may be proper to add a few gen- eral observations on the subject of parties in equity. It is a general rule that all persons who are materially interested in the subject-matter of a bill, or in the object of a suit, however numerous, ought to be made parties to it, either as plaintifis or defendants. This rule, how- ever, being established for the convenient administra- tion of justice, admits of exception in cases where its rigid application would defeat the very purpose for which it was established. The following are the most important of these exceptions : 1. An objection for the want of the necessary parties will not hold where the bill itself seeks a discovery of them. 2. l^ov where a person who would ordinarily be a party is beyond the jurisdiction of the court, provided that no decree is sought which would prejudice his rights ; and that the merits of the controversy can be fully ascertained without his presence. 3. Where the parties are so numerous that it would- be extremely inconvenient to unite them in one suit. This class of cases admits of several subdivisions : 1. Where the question is one of common interest, and" one or more sue or defend for the benefit of the whole ; as in the case of the creditors of a deceased debtor, where one or more may sue on their own behalf and that of the remaining creditors. 2. Where the parties form a voluntary association for private or publio purposes, and those who sue or defend may be fairly presumed to rep- 4 50 ON INSTITUTING resent the rights and interests of the whole. 3. Where the parties are so numerous that it would be impractica- ble to bring them all before the court, they are dispensed with, although they may have separate and distinct interests. In this class of cases, however, there always exists some common right, interest, or privilege, which the bill seeks either to establish, to limit, or to take away. As the decree of the court is only binding upon the parties to the suit, and those claiming under them, the failure to make the proper parties would be attended by all the evils of fruitless litigation, and the court is there- fore always ready to hear this objection. It may be made either by demurrer to the bill, or by way of plea or answer; or it may be taken at the hearing of the cause ; or the court itself may state the objection, and refuse to proceed to make a decree; or if a decree is made, it may be reversed for this defect on re-hearing or on appeal. The objection, however, is not neces- sarily fatal ; for if there are merits, the court will allow the cause to stand over for the purpose of making new parties, and even if the bill is dismissed it will be without prejudice. An accurate and comprehensive knowledge of the doc- trine of courts of equity on this subject can only be ob- tained by. a study of the principles which have been ap- plied to each distinct variety of cases. The student will find these amply discussed in the larger treatises of Ed- -wards, Calvert, and Story. The changes which the Sup- preme Court of the ITnited States have introduced into the old practice will be seen by a reference to rules from 47 to 55 inclusive, contained in the Appendix. Every bill is required (by order of court) to be signed by counsel, as a security that no impertinent or improper matter is contained therein. Anciently, the court itself is said to have perused the bill before it was filed, for the A SUIT IN EQUITY. 51 purpose of discovering whether it was framed in an orderly and proper manner ; but on account of the great increase and multiplicity o# business, this was afterward left to the honor of the bar. During the existence of the exche- quer, however, the signature of one of the barons was always requisite before process could issue. If a bill con- tains matter which is impertinent, scandalous, or irrele- vant, it may be ordered to be expunged, and the counsel required to pay the costs thereof to the party aggrieved. Whenever a bill seeks to remove the cognizance of a cause from a court of law to a court of equity it should be accompanied by an affidavit of the circumstances on which the application to equity is founded. To this class belong bills of discovery, and hills to perpetuate the testimony of witnesses. Whenever any immediate order or interposition of the court is requested, as, for ex- ample, on a, bill of ne exeat, or a bill of injunction, an affi- davit is required of the truth of the bill, to protect tJie jurisdiction of the court from abuse. FORM OP AN ORIGINAL BILL. 1. The Address of the Bill. To the Eight Honorable Edward Lord Thurlow, Baron Thurlow of Ashtield, in the county of Suffolk, Lord High Chancellor of Great Britain. 2. The Introduction. Humbly complaining, showeth unto your lordship, your orator, James Willis (son of John' Willis, of Bab- bington, in the county of Essex), an infant under the age of 21 years, to-wit, of the age of six years or there- abouts, by his said father, and next friend, and Samuel Dickinson, of, etc. 3. The Premises. That, Thomas Atkins, Esq., of Taunton, of the county 52 ON INSTITUTING of Somei'set, being seized and possessed of a considerable real and personal estate, did, on or about the fourth day of ^larch, in the year of our Lord 1112, duly make and publish his last will and testament, in writing ; and thereby amongst other things devised and bequeathed as follows (here are recited such parts of the will as consti- tuted the bequest, which was of eight hundred pounds): And that the said testator departed this life, on or about the 20th day of December, 1748, and upon or soon after the death of the said testator, to-wit, on or about the 8th day of January, 1750, the said Edward Willis and William Willis duly proved the said will in the pi-eroga- tive court of the Archbishop of Canterbury, and took upon themselves the burden and execution thereof; and ac- cordingly possessed themselves of all the said testator's real and personal estate, goods, chattels, and effects, to the amount of fifteen hundred pounds and upward. And your orator further showeth, that he has, by his said father and next friend, at various times, since his said legacy of eight hundred pounds became due and payable, applied to the said Edward Willis and William Willis, re- questing them to pay the same for the benefit of your orator ; and your orator well hoped that they would have complied with such request, as in conscience and equity they ought to have done. 4. The Confederacy. But now so it is, may it please your lordship, that the said Edward Willis and William Willis, combining and confederating together, to and with divers other persons, as yet unknown to your orator (but whose names, your orator prays, when discovered, maj' be inserted herein, as defendants and parties to this suit, with proper and suf- ficient words to charge them with the premises), in order to oppress and injure your orator, do absolutely refuse to pay, or secure for your oi'ator's benefit, the legacy of eight A SUIT IN EQUITY. 53 hundred pounds aforesaid, or any part thereof; for reason whereof, the said confederates sometimes allege and pre- tend that the testator made no such will, nor any other will to the effect aforesaid ; and at other times they ad- mit such will to have been made by the said testator, and that they proved the same, and possessed themselves of his real and personal estate — but then they pretend that the same was very small and inconsiderable, and by no means sufficient to pay and satisfy the said testator's debts, legacies, and funeral expenses ; and that they have applied and disposed of the same toward satisfaction thereof; and at the same time the said confederates re- fuse to discover and set forth what such real and personal estate really was, or the particulars whereof the same consisted, or the value thereof, or how much thereof they have so applied, and to whom, and for what, or how the same has been disposed of particularly. 5. Charging Part. Whereas, your orator chargeth the truth to be, that the said testator died possessed of such real and personal estate, to the full value aforesaid ; and that the same was much more than sufficient to pay all the just debts, leg- acies, and funeral expenses of the said testator; and that the said confederates, or one of them, have posses'sed and converted the same to their own uses, without making any satisfaction to your orator for his said legacy. All which actings, pretences, and doings of the said confed- erates are contrary to equity, and tend to the manifest injury and oppression of your orator. 6. Clause of Jurisdiction. In tender consideration whereof, and for that your orator is remediless by the strict rules of the common law, and relievable only in a court of equity, where mat- ters of this nature are properly cognizable. 54 OW INSTITUTING 7. Interrogatory Part. To the end, therefore, that the said confederates may, respectfully, full, true, direct, and perfect answer make upon their respective corporal oaths, according to the best of their respective knowledge, information, and be- lief, to all and singular the charges and matters aforesaid — as fully in every respect as if the same were here again repeated, and they thereunto particularly interrogated; and more especially, that they may respectively set forth and discover, according to the best of their knowledge, information and belief, whether the said testator, Thomas Atkins, duly made and published such last will and tes- tament in writing of such date, and of such purport and eftect aforesaid ; and thereby bequeathed to your orator such legacy of eight hundred pounds aforesaid, or any other, and what last will and testament, of any other, and what date, and to any other, and what purport and effect, particularly ; and that they may produce the same, or the probate thereof, to this honorable court, as often as there shall be occasion ; and whether by such will, or any other, and wbat will, the said testator appointed any, and what other, executor by name ; and when the said testator died, and whether he revoked or altered said will before his death, and when, before whom, and in what manner ; and whether the said confederates, or one of them, and which of them, proved the said will, and when, and in what court ; and that they may respec- tively set forth whether your orator, by his said father and next friend, hath not several times since his said legacy became due and payable, applied to them to have the same paid, or secured for his benefit, to that purpose and efl:"ect, or how otherwise ; and whether the said confederates, or one, and which of them, refused and neglected to comply with such requests, and for what rea- sons respectively, and whether such refusal was grounded on the pretenses hereinbefore charged, or any, and which A SUIT IN EQUITY. 55 of them, or any other, and what pretenses particularly : And that the said confederates may admit assets of the said testator, come to their hands, sufficient to satisfy your orator's said legacy, and subject to the payment thereof: And that, etc. (requiring a full statement of effects come to their hands, and the disposal thereof, etc., that the plaintiff may show he has a right to the pay- ment of his legacy, in case it should be controverted). 8. Prayer of Relief. And that the said confederates may be compelled, by a decree of this honorable court, to pay your orator's said legacy of eight hundred pounds, and that the same may be placed out at interest, for your orator's benefit, until your orator attains the age of twenty-one years, and that the said eight hundred pounds may then be paid him ; and that, in the meantime, the interest thereof may be paid to your orator's said father, toward the maintenance and education of your orator ; and that your orator may have such further and other relief in the premises as the na- ture of his case shall require and as to your lordship shall seem meet. 9. Prayer of Process. May it please your lordship to grant unto your orator his majesty's most gracious writ or writs of subpena, to be directed to the said Edward Willis and William Willis, and the rest of the confederates, when discovered, thereby commanding them, and every of them, at a certain day, and under a certain pain, therein to be specified, person- ally to be and appear before your lordship, in this hon- orable court ; and then and there to answer all and singular the premises aforesaid, and to stand to perform and abide such order, direction, and decree therein, as to your lordship shall seem meet; and your orator shall ever pray : A. Manning. 56 ON INSTITUTING The following form of the same bill is framed in accord- ance with the recent rules of the Supreme Court of the United States To the Judges of the Circuit Court of the United States for the District of Massachusetts. James Willis, a resident of the city of 'New York, and a citizen of the State of ISTew York, an infant under the age of twenty-one years, by his father and next friend, John Willis, a resident of the same city and a citizen of the same state, brings this, his bill, against Edward Wil- lis and William Willis, who are both residents of the city of Boston, and citizens of the State of Massachusetts. And thereupon your orator complains and says, that one Thomas Atkins, of the city of Boston, being seized and possessed of a considerable real and personal estate, did, on or about the fourth of March, 1820, duly make and publish his last will and testament in writing ; and thereby amongst other things bequeathed and devised to your orator, James Willis, the sum of eight hundred dol- lars ($800.00), and appointed the above-named defend- ants, Edward Willis and William Willis, executors of his said last will and testament. Your orator further states that the said testator departed this life on or about the 20th of December, 1822 ; and soon after the death of said testator, to wit, on the 8th of January, 1823, the de- fendants, Edward Willis and William Willis, duly proved the said will in the probate court of the city of Boston, and took upon themselves the burden and execution thereof ; and accordingly possessed themselves of the tes- tator's real and personal estate, amounting to the sum of five thousand dollars ($5000.00) and upward. And youi orator further says that he has, by his father and next friend, John Willis, applied to the defendants, Edward and William Willis, at various times, since his said legacy became due and payable, to pay the same for your ora- A SUIT IN EQUITT 57 tor's benefit; but they have absolutely refused to pay or secure for your orator's benefit the aforesaid legacy, or any part thereof, pretending and alleging that the es- tate of their testator, both real and personal, was in- sufiicient to discharge his debts, and that they have ex- hausted the whole of the estate which has come into their hands in paying SLich debts ; whereas, your orator charges the truth to be that the estate of the testator was fully equal in vahie to the sum which was before mentioned, viz., $5000.00, and that his debts were small and trifling in comparison with that amount, and that these defendants have converted the pi'operty of their testator to their own use, without making any satisfac- tion to your orator for his legacy. To the end, therefore, that the said defendants may, if they can, show why your orator should not have the re- lief hereby prayed, and may, upon their several and re- spective corporal oaths, and according to the best and utmost of their several and respective knowledge, re- membrance, information, and belief, full, true, direct, and perfect answer make to such of the several inter- rogatories liereinafter numbered and set forth as by the note hereunder written they are respectively required to answer ; that is to say : 1. Whether it is not a fact that the aforesaid Thomas Atkins did duly make and publish his last will and tes- tament, and therein bequeathed to your orator a legacy of eight hundred dollars ($800.00) ? 2. Whether it is not a fact that the said Thomas At- kins, in said last will and testament, appointed them, the said William Willis and Edward WiUis, to be executors of the same ? 3. Whether it is not a fact that the said testator died without revoking said last will and testament, but in fact leaving the same in full force ? 4. Whether it is not a fact that the said defendants, or 58 ON 'INSTITUTING one of them, proved the said will in the probate court of the city of Boston, in due form of law, and took upon themselves the execution thereof ? 5. Whether it is not a fact that they have possessed themselves of the real and personal estate, goods, chat- tels, and eflects of the said Thomas Atkins, deceased ? 6. Whether it is not a fact that assets of said testator have come into their hands more than sufficient to dis- charge his just debts ? 7. Whether it is not a fact thatthey, and each of them, have refused to pay the legacy bequeathed to your ora- tor, and that it yet remains wholly unpaid? Your orator prays that the said defendants may be compelled to render a full and perfect account of the es- tate, goods, chattels, and effects of the said Thomas At- kins, deceased, the value thereof, the debts due by said decedent, and to whom they have been paid or are pay- able, the debts due to said testator, and which of the same have been paid to said executors, and all other matters and things concerning the condition of said es- tate. And that this they may do upon their corporal oaths, to the best of their respective knowledge, informa- tion, and belief. Your orator further prays, that the said defendants may be compelled to pay the legacy bequeathed to your orator of $800.00 by the said Thomas Atkins, and that the same may be placed at interest for the benefit of your orator, until he attains the age of 21 years, and then paid over to him. And that in the meantime the interest thereof be paid to your orator's father, to be ap- plied to the support and maintenance of your orator. And that your orator shall have generally such other and further relief as the nature of his case may require. Therefore, will your honors grant unto your orator the writ of subpena, issuing out of and under the seal of this court, to be directed to said defendants, Edward A SUIT IN EQUITY. 59 Willis and "William Willis, commanding them, and each of them, by a certain day, and under a certain penalty, therein inserted, to appear before your honors, in the circuit court of and then and there answer the premises, and abide the order and decree of the court. J. Penbleton, SoVrfor PVff. N'oTE.— The defendant Edward Willis and the de- fendant William Willis are each required to answer the interrogatories numbered, respectively, 1, 2, 3, 4, 5, 6, 7. COMMENCEMENT OF BILLS.' Bill by a Married Woman, suing by her next friend. Complaining showeth unto your honor, your oratrix I. B., the wife of A. B. of, etc., by C. D., her next friend. That, etc. By Husband and Wife. Complaining show unto your honor, your orator and oratrix, A. B., of, etc., and E., his wife. By a Corporation. Complaining show unto your honor, your orators, the mayor, alderman and commonalty of the city of A. Bill by a Lunatic, suing by his Committee. Complaining shows unto your honor, your orators, A. B., of, etc., and C. D., of, etc. (against whom a commission of lunacy has lately been awarded and issued, which is now in force, and under which said commission the said C. D. was duly found and declared to be a lunatic ; and your orator, A. B., appointed committee of his person and estate.) That, etc. ' We have borrowed from Barbour's valuable Treatise on Chancery Practice the most common forms of the commencement and prayers in original bills. 60 ON INSTITUTING By Creditors, Legatees, etc., on behalf of themselves and other persons of the same class. Complaining show unto your honor, your orators, A B., E. F., and G. H., of, etc., on behalf of themselves and all others the bond and simple contract creditors of D. C, (or legatees and next of kin) who shall come in and contribute to the expenses of this suit. PRAYERS OF BILLS. 1. To Restrain Proceedings in a Suit at Law, and for an Ivjanction. And that the said C. D. and E. F., their counselors, attorneys, or agents, may be restrained by an injunction issuing out of this court from proceeding further against your orator, in the said action commenced against him in the supreme court of this state, and now pending and at issue therein, for the recovery of the possession of said premises, with their appurtenances ; and also from insti- tuting a proceeding in any new or other action at law, for the i-ecovery of the possession of said premises, or any part thereof. And that your orator may have [prayer for general relief). May it please your honors to grant unto your orator the writ of injunction^ issuing ^Form. of the writ.- — George the Third, by the grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, and so forth; to C. D., his counselors, attorneys, solicitors, and agents, and every of them, greeting : Whereas, it has been represented unto us in our court of chancery, on the part of A. B., complainant, that he has lately exhibited his bill of complaint into the said court of chancery, against you, the said C. D., defendant, to be relieved touching the matters therein contained, and that you, the said defendant, being served with a vcrit issuing out of our said court, commanding you to ajjpear and ansvrer the said bill, have not obeyed the same, but are in contempt to an attachment for not appearing to and answering the said bill; and yet, in the mef.n- A SUIT IN EQUITY. 61 out of and under the seal of this court, directed to the said C. D. and E. F., their counselors, attorneys, solic- itors, and agents, commanding them, and each of them, absolutely to desist and refrain from proceeding further against your orator in the said action as above. 2. For an Account of the Rents and Profits of a Testator's Real Estate. And that the said defendants may set forth a full, true, and just rental and particular of the real estate whereof or whereto the said testator was seized or entitled in fee simple at the time of his death ; and also a full, true, and particular account of all and every sura and sums of money which hath or have been received by them, or either of them, or any other person or persons, by their or either of their order, or for their or either of their use, for or in respect of the rents and profits of the said estate or any part thereof, and whether any and which of the said estate, or any part or parts thereof, have or hath not been sold or disposed of, and at what price or prices respectively, and when and to whom, and whether time, you unjustly, as it is alleged, prosecute the said complainant at law, touching the matters in the said hill complained of; We, therefore, in consideration of the premises, do strictly enjoin and command you, the said C. D., and all and every the persons before mentioned, under the penalty of two hundred pounds, to be levied on your and every of your lands, goods, and chattels to our use, that you and every of you do absolutely desist from all fur- ther proceedings at law against the said complainant touching any of the matters in the said bill complained of, until you, the said defendant, shall have fully answered the said bill, cleared your contempt, and our said court shall make other order to the contrary. But, nevertheless, the said defendant is at liberty to call for a plea and proceed to trial thereon; and for want of a plea to enter up judgment; but execution is hereby stayed. Witness, ourself, at Westminster this day of in the year of our reign. 62 ON INSTITUTING such price or prices respectively have or hath not been paid, and to whom, and if not, why not ? 3. For an Account of Money Had and Received. And that the said defendants may set forth an account of all and every sum and sums of money received by them or either of them, or by any person or persons by their or either of their order, or for their or either of their use, for or in respect of the said {as the case stated in the bill may be), and when and from whom, and from what in particular, all and every such sums were respect- ively received, and how the same respectively have been applied or disposed of. 4. For the Production of Deeds and Papers. And that the said defendants may set forth a list or schedule and description of every deed, book, account, letter, paper, or writing, relating to the matters aforesaid or any of them ; or wherein or whereupon there is any note, memorandum, or writing, relating in any manner thereto, which now are, or ever were, in their, or either, and which of their possession or power; and may par- ticularly describe which thereof now are in their, or either, and which of their possession or power, and may deposit the same in the office of the register of this court (or the clerk in chancery for the fourth circuit), for the usual purposes, and otherwise that the said defendants may account for such as are not in their possession or pow^er. 5. For an Account of Personal Estate. r And that the said defendants may discover and set forth a full, true, and particular account of all and sin- gular the personal estate and effects of the said testator, and of every part thereof, which hath been possessed by, or come to the hands of, the said defendants, or either of A SUIT IN EQUITY. 63 them, or to the hands of any other person or persons, by their or either of their order, or for their or either of their use, with the particular nature, quantities, quali- ties, and true and utmost values thereof, and of every part thereof respectively ; and how the same, and every part thereof, hath been applied and disposed of; and whether any, and what part thereof, now remains unap- plied and undisposed of, and why; and whether any, and what part of, such personal estate remains outstanding, to any and what amount, and why; and that the said defendants may also set forth an account of the debts due from the said testator, and of his funeral expenses and legacies ; and whether any and which of such debts are outstanding, and why. 6. For a Ne Exeat. And that the said defendants vadij be stayed, by the writ of ne exeat respublica, from departing out of the ju. risdiction of this court. And that your orator {prayer for general relief). May it please your honor to grant unto your orator the writ of ne exeat respublica,^ staying ^Form of the Writ. — George the Third, by the grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, &o. To our sheriff of Middlesex, greeting: Whereas, it is represented to us in our court of chancery, on the part of Wade Williams, com- plainant, against Alexander Mills, defendant (amongst other things), that he, the said defendant, is greatly indebted to the said complainant, and designs quickly to go into parts beyond the seas (as by oath made on that behalf appears), which tends to the great prejudice and damage of the said complainant; therefore, in order to prevent this injustice, we do hereby command you that you do without delay cause the said Alexander Mills, personally, to come before you, and give sufficient bail or security in the sum of £500, that said Alexander Mills will not go, or attempt to go, into parts beyond the seas without leave of our said court; and in case the said Alexander Mills shall refuse to give such bail or security, then you are to commit him, the said Alexander Mills, to our next prison, there to be kept in safe custody until he shall do it of his 64 ON INSTITUTING the said C. D. and E. F., or either of them, from depart- ing into parts beyond this state, and ont of the jurisdic- tion of this court, without leave first had. 7. In Suits against the United States or a State. And may it please your honor, that the district attor- ney of the United States for the district of New York (or the attorney-general of the State of ITew York), on being attended with a copy of this bill, may appear and put in an answer thereto, and may stand to and abide such order and decree in the premises as to your honor shall seem meet. 8. In suits against a Corporation. And that the said, the president, directors, and com- pany of the Schenectady Bank may appear according to law and the course and practice of this court. Form of Affidavit to a Bill. ' \ss. State of - County, - On this day of , before me personally ap- peared the above named A. B., and made oath that he has read the above bill, subscribed by him (or heard it read), and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated to be on his information or be- lief, and that as to those matters he believes it to be true. I. v.. Justice of the -Peace, or Master in Chancery. From their frequent occurrence in practice, we have own accord ; and when you shall have taken such security, you are forthwith to make and return a certificate thereof to us, in our said court of chancery, distinctly and plainly, under your seal, together with this writ. Witness, ourself, at Westminster, the day of in the 30th of our reign. A SUIT IN EQUITY. 65 been induced to insert at length the form of iiie follow- ing hills : Bill to Foreclose a Mortgage} John Smith, of the city of Cincinnati, in the State of Ohio, respectfully represents to your honors, that James Brown, of said city and state, being seized in fee simple of a certain tract of land, situate in the county of Ham- ilton, of said state, being the southwest quarter of sec- tion four, in range six, containing one hundred and sixty acres, more or less, applied to your petitioner, on or about the first day of May, 1844, for the loan of one thousand dollars, to be secured by a mortgage on the above described premises ; and that your petitioner did loan the sum of one thousand dollars to said James Brown ; and thereupon the said James Brown, to secure the re-payment of the same with lawful interest, by his deed, duly executed and dated on or about the first day of May, 1844, and recorded in the recorder's office of Hamilton county, in book ISTo. 100, conveyed the same premises to your petitioner, in fee simple ; subject, how- ever, to a condition of defeasance, on the payment of said snm of $1,000, with lawful interest, on the first day of May, 1845, thence next ensuing, as in said deed will more fully appear, a copy of which, marked A, is herewith filed and made part of this bill. ^ Bills for strict foreclosure are very rare in this country. The Irish practice has been generally adopted, viz., to decree a sale, in- stead of a foreclosure, and if the sale produces more than the debt, to pay over the surplus to the mortgagor. THe practice on foreclos- ing a mortgage is for the chancellor, on the first hearing, to decide on the sum due, to give a day for the payment, and to decree a fore- closure and sale nisi, and afterwards, in term, to decide whether this decree has been performed, and if not, to make it absolute. The proceeding to foreclose a mortgage is in rem, to reach the pledge, and equity has nothing else to do. Thus it can not, upon the prop- erty proving insufficient, decree that the defendant pay the balance, and give execution therefor, 1 Monroe, 66. 5 66 ON INSTITUTING Your petitioner further represents, that neither the sum of one thousand dollars, nor any part thereof Avas paid at the time stipulated in said deed of mortgage ; whereby the legal estate in said premises became vested in your petitioner, redeemable, nevertheless, in equity, on payment of the principal and interest due, and to become due thereon, and that the said principal sum, and a large arrear of interest being due, your petitioner requested said James Brown to pay the same, which he has refused to do, and still refuses. Your petitioner, therefore, prays that the said James Brown may be compelled, on his corporal oath, to answer all and singular the premises in this bill ; that an account may be taken of what is due your petitioner upon said mortgage ; that the premises may be sold under a decree of this court, and the proceeds applied to the satisfaction of your petitioner's debt; and that your honors may grant such other and further relief as the nature of the case may require. "Will your honors, therefore, grant the writ of subpena, to be directed to the sheriff of Hamilton county, com- nianding him to summon said James Brown, the defend- ant in this case, by a certain day, and under a certain penalty, therein to be inserted, to be and appear before your honors, at the court-house of Hamilton county, then and there to answer the premises, and abide the order and decree of the court. J. H., Solicitor for Plaintiff. Bill for Specific Performance. J. S., of the city of Cincinnati and State of Ohio, brings this his bill against J. B., of said city and State, and says that the said J. B., on or about the first of May, 1844, was seized in fee simple of a certain tract of land in Hamilton county of said state, and which is hereinafter more particularly described ; and that said J. B. entered A SUIT IN EQUITY. 67 into a written agreement with your orator for the sale of said land, which was signed by J. B. and your orator, and a copy of which is herewith filed, marked A., and made a part of this bill. The substance of this agree- ment was as follows : J. B. covenanted and agreed for himself, his heirs, executors, and administrators, for the consideration hereinafter mentioned, on or before the first of December, 1844, well and truly to convey, by a good warranty deed, in fee simple to your orator, his heirs or assigns, all that tract of land situate in Hamil- ton county, and State of Ohio, on which he was then re- siding, being a part of the north-east quai'ter of section four, in range six, being one hundred acres more or less. In consideration whereof, your orator covenanted and agreed to pay said J. B., his heirs, executors, or adminis- trators, the sum of five thousand dollars (|5,000) in the manner following, to-wit : one thousand dollars (|1,000) on the delivery of the deed for the premises ; two thou- sand dollars ($2,000) on the first of December, 1845, and two thousand dollars ($2,000) on the first of December, 1846 Your orator further says, that he has always been ready to comply with the terms of s&id agreement on his part to be performed ; that on the first of Decem- ber, 1844, he applied to the aforesaid J. B., and offered to pay him the sum of one thousand dollars ($1,000) law- ful money, on his delivering to your orator a valid deed for the aforesaid premises, as by his agreement he was bound to do. ]!^evertheless the said J. B. wholly refused to do so, and still refuses. Your orator further says that he is at all times ready to pay said thousand dollars ($1,000) and perform his part of said agreement, when- ever J. B. will make and deliver to him a good and law- ful deed to the aforesaid premises. Your orator prays that the said J. B. may be required, on his corporal oath, and to the best of his knowledge,. b» ON INSTITUTING information and belief, to make, full, true, and perfect answers to the following questions : 1. Whether he was not seized in fee simple of the above described tract of land. 2. Whether, being so seized and possessed, he did not enter into a written agreement with your orator at the time hereinbefore mentioned, duly to convey said prem- ises to your orator, for the consideration above men- tioned. 3. Whether your orator has not offered to perform his part of the above agreement, and particularly to pay said J. B. one thousand dollars ($1,000) on. receiving a good and valid deed for the above named tract of land ? Your orator further prays, that the said J. B. may be decreed specifically to perform his said agreement, to make a good and marketable title to the above named premises, and to execute a proper conveyance thereof to your orator, pursuant to the terms of his said agreement. And that your orator may have such other and further relief as the nature of his case may require. Bill for an account of partnership dealings between solicitors after a dissolution, and for a receioer, and also for an in- junction to restrain the defendant from receiving any of the partnership debts. To etc. Humbly complaining, showeth unto your honors, your -orator, A. B. of , That on or about , your orator and P. H. W. of , etc., the defendant hereinafter named, entered into co-partnership together as attorneys .and solicitors ; your orator engaging to bring into the business the sum of $ , and being to receive on'e-third part or share of the profits ; and the said P. H. W. en- gaging to bring into the business the sum of % , and being to receive two-third parts or shares of the said profits. And your orator further showeth unto your A SUIT IN EQUITY. 69 honors, that your orator accordingly brought into the business the said sum of $ , and that the saitl co- partnership was carried on and continued until the day of , when the same was dissolved by mutual consent, and the usual advertisement of such dissolution was inserted in the Gazette, And your orator further showeth unto your honors, that no settlement of the said co-partnership accounts hath ever been made between your orator and the said defendant, and that since the said dissolution, your orator hath repeatedly applied to the said defendant to come to a final settlement with re- spect thereto. And your orator well hoped that the said defendant would have complied with such your orator's reasonable requests, as in justice and equity he ought to have done. But the said defendant absolutely refuses so to do. And your orator charges that the said defendant liatli possessed himself of the said co-partnership books, and hath refused to permit your orator to inspect the same, and hath also refused to render to your orator any account of the co-partnership monej^s received by him. And your orator charges that he has, since the said dis- solution, paid the sum of $ , in respect of the co- partnership debts. And your orator further charges, that upon a just and true settlement of the said accounts it would appear that a considerable balance is due from the said defendant to your orator in respect of their said co- partnership dealings ; but nevertheless the said defendant is proceeding to collect in the said co-partnership debts, and to apply the same to his own use, which the said de- fendant is enabled to do by means of his possession of the books of account, as aforesaid. And your orator charges, that the said defendant ought to be restrained by the in- junction of this honorable court from collecting in said debts, and that some proper person ought to be appointed by this honorable court for that purpose. And that an account may be taken of all and every the said late co- 70 ON INSTITUTING partnership dealings and transactions until the time ot the expiration thereof, and that the said P. H. W. may he directed to pay to your orator what, if anything, shall upon such account appear to be due from him; your or- ator being ready and willing, and hereby offering to pay to the said P. H. "W. what, if anything, shall appear to be due to him from said joint concern. And that some proper person may be appointed to receive and collect all moneys which may be coming to the credit of the said late co-partnership. And that the said P. H. W. may, in the meantime, be restrained by the order and in- junction of this honorable court from collecting or re- ceiving any of the debts due and owing thereto. And may, etc. To the class of original bills praying relief belong Bills of Interpleader. When two or more persons claim the same debt, duty, or thing iu different titles, whether legal or equitable, from another, who is in the situation of an innocent stake- holder, standing indifferent between them, the latter, if molested by a suit actually brought, or impending, may file his bill of interpleader, for the purpose of com- pelling the claimants to litigate their rights at their own expense, and thus protect himself from all responsibility.^ The court, to prevent the abuses of its jurisdiction, re- quires the plaintiff to make an affidavit, that there is no collusion between him and any of the parties ; and where ^It should be observed that In cases of bailment, that is, when property has been bailed to a third person by the joint consent of both the other parties, a court of equity has no jurisdiction, as in those cases, interpleader (at least in England), may be compelled at law. Both courts, however, act upon the same principle, with this difference only, that while courts of law are confined to the sin- gle case of bailnient, those of equity extend to all oases to which in conscience and justice its relief ought to be applied. A SUIT IN EQUITY. 71 money is due, to offer in his bill, to bring the same into court. The plaintiff" must show that he is ignorant of the rights of the defendants, or that there is at least some doubt to which of them the debt or duty belongs. He can claim no relief against either, but only asks for liberty to pay the money or deliver up the property to the one to whom of right it belongs, and that he may thereafter be protected against the claims of each. The only decree, therefore, to which he is entitled, is, that the bill was properly filed, and that he pay the fund into court, and be dismissed with his costs. The court then proceeds to determine the controversy between the de- fendants, and for this purpose, either directs an action to be brought, or an issue to be tried, at law, or a reference to a master. Bill of Interpleader. In Chancery. Before the Chancellor. To, etc. Complaining, shows unto your honor, your orator, J. E,., of the city of New York, merchant, that, on or about the 26th day of June, 1821, your orator purchased of D. S., a defendant hereafter named, a certain quantity of coal, then being on board a vessel called the James, amounting to cauldrons, for which your orator agreed to pay the said D. 8. the sum of $1,125, and to give his promissory note for such amount, payable in thirty days from the said 26th day of June. That such coal was delivered to your orator, and he paid on account of such consideration money $100. And your orator further shows that some time after- ward, and about the day of 1821, F. & S. Scherraerhorn, of the city of New York, merchants, caused an attachment to be sued out against one William "Williams, as an absent debtor, and that afterward L. F. and D. B. caused another attachment to be sued out 72 ON INSTITUTING against the said "W". W. as an absconding debtor ; that warrants were issued in the usual form to W. B., the sheriff of the county of New York, who gave notice to your orator not to pay over to any person except him, the said sheriff, any property or money, of, or belonging to the said W. W. ; and further, that the said W. B., the sheriff' aforesaid, and G-. D., the attorney of the said F. & S. Schermerhorn, and the said F. & B., apprised your orator that the coal so purchased by your orator as afore- said, of the said T>. S., was the property of the said W. "W"., for whom the said D. S. was only an agent or factor, and insisting, and giving notice to your orator, that he would be held liable if he paid the residue of such moneys, or any part thereof, to the said D. S. And your orator further shows unto your honor that he made application to the said F. & S. S., and F. & B., for leave to pay over such money to the said D. S., with- out subjecting himself to any responsibility therefor to them, the said F. & S. S., and F. & B., which they pos- itively refused to do. And your orator also applied to the said D. S., to relieve or secure your orator against the effect or operation of such attachments, and from any further responsibility in the premises, but he, the said D. S., has wholly refused so to do, and has com- menced an action at law, in the Supreme Court of this State, to recover the balance of the said money agreed upon as the price of such coal. And your orator further shows that he has always been willing to pay the balance of such money to such person or persons as should be lawfully entitled to receive the same, and to whom he could pay the same with safety ; and he hereby offers to pay the same into this court. And your orator further shows that he doth not in any respect collude with either the said T>. S., or F. & S. S., or F. & B., touching the matters in question in this cause ; that he hath not exhibited this bill at the request of such A SUIT IN EQUITY. 73 defendants, or any or either of them, and that he has not been indemnified by such defendants, or any or either of them, but merely of his own free will, and to avoid being molested and injured, touching the matters contained in such bill. Wherefore, and as your orator can only have adequate relief in this court, to the end that the said de- fendants may interplead, and settle their rights to the said sum of money, and that your orator may be at liberty to pay the same into this court ; and that the said D. S. may be enjoined and restrained from further proceeding in the suit at law, so as aforesaid commenced by him against your orator, and that the said F. & S. S. and F. & B., and D. S., may be enjoined and restrained from commencing any suit against your orator touching the premises ; and that your orator, upon payment into court of such amount, and procuring the said defendants to interplead accord- ing to the course of this court, may be decreed to be dis- charged from all liability to such defendants in the prem- ises, and may have all his costs therein. May it please, etc. Another class of original bills, praying relief are bills of certiorari. Where a suit is insituted in an inferior court of equity, which, in consequence of its limited jurisdiction can not do complete justice in the premises, the defendant to such suit may file a bill m the superior court of chancery, pray- ing a special writ, called the writ of certiorari, to have the cause removed to said 'court. The bill states the proceed- ings in the inferior court, so far as it may be necessary to show the incompetency of its jurisdiction, and without praying that the defendant (the plaintiff in the court be- low) may be required to answer, or even to appear, or, in consequence, that the writ of subpena may issue, it merely asks for the writ of certiorari. This writ (which is not peculiar to the court of chancery) is directed to the judge 74 ON INSTITUTING of the court below, and requires him to certify or send to the court of chancery the bill or plaint, and all proceed- ings therein, to prevent this proceeding from being used for the sole purpose of delaying justice. The court re- quires the plaintiff to give bond, in a sufficient penalty, to become void only in the event of his establishing the suggestions of his bill within a limited time after the re- turn of the writ. If the evidence produced satisfies the court of the truth of its suggestions, the cause will be retained, and the bill exhibited in the court below, con- sidered as an original bill in the superior court, which the original plaintiff may prosecute or not, as he thinks proper. If, however, the suggestions are not proven, the other party may apply for a " procedendo" which is a writ directed to the judge of the inferior court, desiring him to proceed in the cause sought to be removed. This bill is rarely, if ever, used in the United States. The conclusion of a bill of certiorari, in which only it differs materially from the general form given in the pre- ceding pages, is as follows : " In tender consideration whereof, and for as much as for want of jurisdiction in the said lord mayor and his brethren, the aldermen of the city of London, over your orator's witnesses, your orator is remediless there ; and it being agreeable to the rules and practices of this honora- ble court, upon such necessities and defects of jurisdiction in inferior courts, for this high and honorable court to re- move the records and proceedings thereof into this honor- able court, and to proceed in this court upon the same, and all other matters and things incident thereto, may it please your honor to grant unto your orator a writ of cer- tiorari ^ to be directed to the said lord mayor of the city ^ Form of the Writ. — George the Third, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, etc. To the Mayor and Aldermen of London, greeting: We, willing for certain causes to be certified of and upon a certain petition or bill A SUIT IN EQUITY. 75 of London, and his brethren, the aldermen of the said city, thereby commanding them, upon the receipt of the said writ, to certify and remove the records of the said cause, etc., and all proceedings thereupon, into this hon- orable court ; and that your orator may be relieved in all and singular the premises according to equity and good conscience, and that the said defendants may stand to observe and perform such order and decree therein as to your honor shall seem meet ; and your orator shall ever pray, etc. The first class of original bills, not praying relief, are bills to perpetuate the testimony of witnesses. This bill is used where there is no reason to fear that the evidence necessary to establish facts, which will probably become the subject of controversy at a future period, may be lost by the death or absence from the realm of a ma- terial witness. It is in conformity with the usage of the Eoman law in similar cases. The bill should state the general circumstances of the plaintiff's case, and the mat- ters respecting which he is desirous of giving evidence, with such particularity as may enable the parties to direct their interrogatories to the true merits of the controversy. The bill must show an interest on the part of the plaintiff, in the subject, sufficient to entitle him to the aid of the court ; an interest in the defendant to contest his title ; and also some ground of necessity for perpetuating the evidence, as that the matter in question can not be made of complaint, before you, against Abraham Pettit and Charles Giles, Gent., at the suit of Samuel Newland, Esq., lately exhibited and now depending, command you that the petition or bill aforesaid, with all things touching the same, by whatsoever other names the parties aforesaid, or any or either of them, are or is set down before us in our chancery, truly, fully, exactly as in your custody they now remain under your seals, distinctly and to openly send immedi- ately, and that this writ, that further thereof we may cause to be done that which of right ought to be done. Witness, ourself,,at Westminster, the day of , in the 30th year of our reign. 76 ON INSTITUTING the immediate subject of judicial investigation. It then goes on to pray, " that the several witnesses to the said indenture (or as the case may be) may be examined as to the due execution thereof, and the testimony perpetuated, may it please your lordship to grant subpena," etc. The bill of discovery forms the second class of original bills not praying relief. Every bill, except that of certiorari, may in truth be considered as a bill of discovery ; for every bill seeks a disclosure of circumstances relative to the plaintiff's case ; but that which is usually and emphatically distinguished by tbis appellation is a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds, writings, or other things in his custody or power, and seeking no relief in consequence of the discovery. It is most frequently used to assist the jurisdiction of courts of law, by enabling a party who prosecutes or defends an action therein, to compel the production of deeds, or of the discovery of material facts. A bill of discovery should state the matter concerning which the discovery is sought fully and precisely, the interest of the several par- ties in the subject, and the right of the plaintiff' to the discovery. The bill must also show that the discovery is material either to the prosecution or defense of an action which has been brought, or is about to be brought at law. If the bill is for discovery only, it is not necessary to aver that the party can not otherwise establish his case at law ; but the rule is different where the bill seeks relief as an incident to the discovery. A bill of discovery, properly so called, never prays any relief. Should such a bill con- tain a prayer for relief, a demurrer would lie, according to the modern English practice, to the whole bill. The rule which is adopted in IsTew York, and by the Supreme Court of the United States, and which is in accordance with the ancient English practice, is more liberal, and allows to a plaintiff", who is entitled either to relief or A SUIT IN EQUITY. 77 discovery, the benefit of that part of his bill which is good. Where the bill seeks relief as consequent npon the discovery of a bond or other evidence of title, the plaintiff must annex an affidavit of its loss or destruc- tion. Form of a Bill of Discovery. To, etc. Complaining, show unto your honor your orators, A. M. and C. M., of, etc., that, by a certain instrument of assignment, dated the day of , made between J. D., of the city of New York, of the first part, and your orators, of the second part, the said J. D. bargained and sold, assigned, transferred, and set over unto your orators, the certain property, goods, choses in action and securities for money therein, and in the schedules thereto particularly mentioned in trust {set forth assignrnent, etc. particularly). And your orators further show, that at the time aforesaid there was due and owing to the said J. D., from one E. B., of the said city of New York, a de- fendant hereafter named, the full and just sum of $750, being the balance of an account between him and the said E. B., and the said J. D., the particulars of which . account are set forth in a schedule marked A, hereto annexed, and to which your orators refer. And your orators further show that they have repeatedly applied to the said K. B. to pay them the aforesaid sum of $750, so justly due from him, with which reasonable request he has refused to comply ; and having so refused, your orators were compelled to, and did commence an action at law in the Superior Court of the city of New York, for obtaining payment thereof. And your orators charge that the said E. B. hath pleaded in such suit, and given notice of a set-off" in the same, and hath delivered a par- ticular of such set-off, which, dowu to the date of such assignment, corresponds with the credit side of the ac- count set forth in the schedule hereto annexed, but that 78 ON INSTITUTING such defendant hath included in the said particular three several items — one of $50.00, one of $48.00, and one of $36.00, being charges for goods delivered in the course of the month of , in the year , for which he claims credit in such action. "Whereas, your orators charge that the said E. B., at the time of the delivery of each and every of such par- cels of goods so chai'ged for as aforesaid, knew, and was well apprised of the assignment to your orators, or that he, the said J. D., had made some assignment of all his property and effects for the benefit of creditors. And your orators have no means of proving such knowledge or information on the part of the said R. B., in the action at law aforesaid, and can only establish the same by means of a discovery from such defendant. And they are advised that they can not safely proceed to the trial of such action without a discovery of the matters hereinbefore stated from such defendant. To the end, therefore {special interrogatory as to knowledge). And that such defendant may make a full and true discovery of all matters aforesaid. May it please, etc., omiting the word " decree." We began our inquiries with a suit instituted on be- half of a citizen, which, we have seen, is commenced by bill, exhibited in the name of the party complainant. If the same suit is instituted on behalf of the crown, or of those whose rights are intrusted to its protection, it is commenced by information, exhibited in the name of the king's attorney or solicitor-general, as his majesty's re- presentative. This, as we have before observed, differs from a bill little otherwise than in name — as will appear from the skeleton which is given below. To the right honorable, etc. Informing, showeth unto your lordship. Sir Alexander Scott, Knt., his majesty's attorney-general. That, etc., and his majesty^s said attorney-general further showeth, A SUIT IN EQUITY. 79 etc. But now so it is, etc. In consideration whereof, etc. To the end, therefore, etc., precisely as the preced- ing form of a bill. When the suit does not immediately concern the rights of government, its officers depend upon the relation of some person whose name is inserted in the information, and who is termed the relator. The relator is considered responsible to court and the parties for the propriety of the suit, and the conduct of it. 80 OF APPEARANCE TO CHAPTER II. OF APPEARANCE TO A SUIT IN EQUITY. When the plaintiff has filed his bill, the writ of sub- peua issues out of the law side of the court, requiring the defendant to appear and answer the charges alleged against him. A custom at one time prevailed in England (as it does to this day in Virginia, and probably in some other states) of issuing a subpena before the filing of the bill, which was abolished by statute in the reign of Anne. The recent rules of the supreme court conform to the practice thus introduced. The subpena (borrowed from the common law form of process for a witness) is sup- posed to have been first applied to the purpose of com- pelling an appearance to a suit in equity, by Bishop Waltham, in the reign of Richard II. This writ was always vehemently opposed by the courts of common law ; and having sometimes, it seems, been issued on groundless allegations, it was enacted, by 15th Henry VI, c. 4, at the instigation of the commons, that no writ of subpena should be granted in future until surety had been found to answer to the party aggrieved for his dam- ages and costs, in case the plaintifl" failed to make good the charges in his bill. This security, however, has long since fallen into disuse — a matter greatly to be lamented — and is now required only in cases where the plaintiff resides abroad, or is about to quit the kingdom. The form of the writ is as follows : Subpena, to Appear and Answer, in Chancery. George the Third, by the grace of God, of Great Brit- ain, France, aud Ireland, King, Defender of the Faith, A SUIT EST EQUITY. 81 and so forth, to Edward Willis and to William Willis,^ greeting : For certain causes offered before us in our chancery, we command and strictly enjoin you, that, laying all other matters aside, and notwithstanding any excuse, you, and each of you, be and personally appear before us in our said chancery, on the day of next (or immediately on the receipt of this writ),^ where- ' Three defendants only (of which a man and his wife together are deemed one) are in chancery allowed to be inserted in the same sub- pena, the reasons for which, as given by Gilbert, are, that "the plaintiff may not put in an abundance of defendants, in order to terrify and vex them, and that mistakes may not be made in trans cribing a multitude of names in the label ; '' reasons which, though adopted by subsequent writers, the reader may probably think somewhat trivial. It is in truth difficult to account for all the mi- nutiae of this sort which pervade our legal proceedings; few of them, probably, are sanctioned by any other reason than this : that' as some rule must necessarily be pursued, it was in most cases thought better to adopt that which happened to prevail at the time than establish a new one. In the present instance, the revenue might possibly have been adverted to. "^ The return of a subpena may be either ordinary or extraordi- nary. The ordinary return is always on some day certain in Term (that is to say, one of the common return-days.) The vacations having at the original constitution of the Terms been appropriated, those of Hilary, Easter and Michaelmas for the duties of devotion preparatory to the festivals of Lent, Whitsunday and Christmas, and that of Trinity for the purpose of collecting in the produce of the earth ; but the extraordinary return, which is so called because it can be had only by application to the court grounded on an affi- davit of the defendant's residing within ten miles from London, may be on any day in vacation, persons residing within that dis_ tance of the court being able, it was supposed, to leave and to re., turn to their avocations without any material inconvenience. And in those circumstances, if expedition be required, it may be made returnable immediately, which always supposes great urgency; but no subpena can be made returnable immediately in Term, because, every day being then a day of appearance, no such extraordinary expedition can be necessary. 6 82 OF APPEARANCE TO soever it shall then be, to answer concerning those things which shall be then and there objected to yon, and to do further, and receive what our said court shall have con- sidered in this behalf, and this you may in no wise omit, under the penalty of one hundred pounds, and have there this writ. "Witness ourself, at "Westminster, the day of , in the thirty-third year of our reign. Courtney. Indorsed, " By the court, to answer at the suit of James "Willis, et. al." And upon the label, " To Edward "Willis, to appear in chancery, returnable the day of , at the suit of James "Willis, et. al." The label is an abstract of the subpena, as it relates to each defendant. It is written upon a slip of parchment and annexed to the writ. It is rarely used in the United ■States. Where there is only one defendant, the body of ithe writ is left either with the party himself, or at his iusual place of residence ; but if there be more than one ■defendant, the label only of the writ is given to those who .are first served, and the body reserved for the last de- fendant. The reason of this is that the body of the writ ■may be shown to the several other defendants, to whom ■the labels are given, as they are not obliged to pay obe- 'dience to the label unless the writ itself, under the seal >of the court, is at the same time shown to them. If the defendant is a peer or a peeress of the realm, ar a lord of parliament, instead of the writ of subpena in the first instance, a letter under the signature of the ■ court is transmitted to him, informing him of the exhi- bition of the plaintiff's bill. This letter is written in these terms, and is styled A SUIT IN EQUITY. 83 A Letter Missive in Chancery} My Lord : It appears by a petition, a copy of whicli is herewith sent you, that James Willis, an infant, has exhibited his bill in the high court of chancery against your lordship, and desires your appearance thereto on the day of next. Wherefore I do, at his request (according to the manner used to persons of your quality), desire your lordship to take knowledge thereof, and to give orders to those you employ in such matters, for your appear- ance to the said bill accordingly. I am. Your lordship's humble servant, Thu;klow, C. To the right honorable, Henry, Earl of Cardogan. It is to be observed that the letter missive is not a pro- cess of the court, but a mere complimentary notice, which the defendant may attend to or not, at his pleasure. If he does not appear, a subpena must be issued against him, as in common cases. This is necessary, because all subsequent proceedings to compel an appearance, are so many processes of contempt ; founded on a disregard of the seal of the coiirt. They can not, therefore, be awarded on the disobedience of a letter missive only, which being a mere ex gratia notice, can induce no such contempt. 'The practice of sending letters missive to peers, previous to the process of subpena, is said to have been first introduced about the sixteenth year of Elizabeth. Lord Bacon, chancellor, appears to have been the first who adopted this polite method of acquaint- ing his order with the proceedings which had boen instituted against them, and it has continued ever since. It is observable that a similar practice prevailed in the Roman law, where, if the defendant was persona illusiris vel darissima, he was cited in writing, as being more respectful than the usual mode of citation obtorto collo. 84 OF APPEARANCE TO The mode of serving a subpena in suits in the Supreme Court of the United States, is prescribed by the 13th rule, and is in conformity to the English practice. The ser- vice is directed to be " by a delivery of a copy thereof^ by the olBGlcer serving the same on the defendant person- ally; or in case of husband and wife, on the husband personally, or by leaving a copy thereof at the dwelling; house or usual place of abode of each defendant, with some free white person, who is a member or resident in the family." Service of wnt against an infant, is to be made upon the infant himself. The correct practice is to accompany the subpena with a notice to the parent, guardian, or some other competent member of the family, of the nature of the writ, and the intent of the service — viz : that the infant may have a guardian assigned, to appear and defend his interests. Service against a corporation is made upon one of its members, usually upon the princi- pal officer. These are the ordinary modes of serving a subpena ; but the court will, under special circumstances, order other modes of service to be deemed good, in the par- ticular case. This will be done as a general rule, where the subpena is proven to have come to the defendant's hands.' When the subpena has been properly served the de- fendant is bound to appear and answer to the charges preferred against him, in the bill of the plaintiff, within the time limited by the practice of the court, or compul- sory process will be awarded against him, for his con- ^The question has been very much discussed in England, though it seems still unsettled, whether the service of the subpena may not be made in a foreign country, and the defendant attached upon the strength of it, if he come within the jurisdiction. Hoffman, in his Chancery Practice, vol. 1, page 113, after an examination of all the cases, makes the following interesting remarks ; " To view the A SUIT IN EQUITY. 85 tempt in neglecting the requisitions of the subpena. Ap- pearance is the formal proceeding by which the defend- ant submits himself to the jurisdiction of the court,' and point more comprehensively, let the nature of a subpena be con- sidered. This is nothing more than a notice from the court to ap- pear. No ministerial officer is employed to execute it, but it may be served by the party or a stranger. If derived from the civil law, as appears most probable, it answers to the citatio verbalis. The mu- tations of the civil law process for bringing a party before the tribu- nals of justice, appear to have resulted from the natural progress of society. At first, the plaintiflf might seize the defendant in public, declaring his intention in the presence of a witness, and carry him before the prsetor. To avoid the disturbance which this course tended to produce, the praetor issued his citation in writing, which the party might serve upon the defendant ; and in case of disobe- dience, he employed a special deputy to serve a process, which was called citatio per nuniium. Lastly, regular ministerial officers, ap- pointed by the government, were employed for the peculiar exe- cution of this duty. The court of chancery, in its first proceedings, is yet in the second step of this progress. As the subpena is no more than such a personal notice, the service of it does not appear to violate the sovereignty of a foreign state. The state is not sove- reign if it does not give immunity to every one living within its jurisdiction, from any interference with his personal liberty, except what arises from its own laws. An arrest or detention can there- fore be only warranted by those laws, and only executed by the officer of the government. But the service of a subpena is clearly dis- ting lishable. It is, said Chief Baron Gilbert, only a notice. And it may be further suggested that the defendant's interest is most consulted by giving him a personal notice." ' Anciently, the mode of appearance (agreeably to the word it- self), was by the defendant's actual attendance in court, where, in some cases, he was to appoint a responsalis, or attorney, in open court before the justices ; and in those cases, no attorney could be received but one who was so appointed; in other cases, the attorney was aj)- pointed by writ, or letters patent, under the great seal, command- ing the justices to admit the person therein named, to act as the party's attorney in such particular case, as "Rex Vice comili salutem; sciai quod N. posv.it, coram me R. , loco suo, ad lucrandum vel perdendum pro eo in placito, etc., quod est inter eum et T. de una carucata, terra in villa de et ideo tibi precipio quod prcedictum R. loco ipsius N. in placito illo red- pias ad lucrandum vel perdendum pro eo, etc." If such writ or letters 86 OF APPEARANCE TO it was at one time absolutely necessary in every case, before any decree could be rendered against him. Where the defendant did not voluntarily obey the injunctions of this writ by entering his appearance on its return, a long chain of process was resorted to, ending in a seques- tration of his property, for the purpose of compelling an appearance. There were many cases, however, in which the plaintiff had no effectual remedy ; as where the de- fendant could not be served with process at all; or where, notwithstanding the commitment of his person, and the sequestration of his property, he persisted in re- fusing to appear and put in his answer. To make the process of the court more effectual, there are various statutory enactments, both in England and .the different United States, providing that under certain circum- stances, a decree pro confesso may be rendered against non-resident, absconding, or contumacious defendants, founded upon the statements of the plaintiffs bill. The process for effecting a compulsory appearance has fallen into comparative disuse, since the passage of these stat- utes. A full description of it is, however, retained, since there may be cases in which the plaintiff' can not dis- pense with an answer, and the right to take a decree pro confesso be inadequate ; as, for example, upon some bills of discovery. could not be obtained, the party was obliged to appear personally in court de die in diem till his suit was determined; but by statute (13 Edward I, chap. 10), general attorneys appointed for the purpose of conducting any suit or other matter indeiinitely, appear to have been allowed; and in the 20th year of the same king, the chief justice and his fellow justices were especially required to appoint from every county, " atiornatos et apprenticios qui curiam sequaniur, et se de negoliis in eadem curia intromittant, et alii non." See Glan. lib. 12, c. 1, 2 Inst 378; 1 Eeeve Hist. 169. The present easy and convenient method of conducting suits by attorneys, gradually obtained by the indulgence of successive legislatures, founded on the perpetual ad- vancement of science and trade, and the consequent refinement of manners. A SUIT IN EQUITY. 87 The first of these processes is an attachment, which is in the nature of a capias at common law ; and is directed to the sheriff", commanding him to attach or take up the person of the defendant and bring him into court, and is in the following form : An Attachment in Chancery} George the Third, by the grace of God, of Great Britain, France and Ireland, King, Defender of the Faith, and 80 forth, to the sheriff' of Wiltshire, greeting: We command you to attach Edward Willis, so as to have him before us in our court of chancery, whereso- ever the said court shall then be, there to answer to us, as well touching a contempt which he, as is alleged, hath committed against us, as also such other matters as shall then be laid to his charge ; and further to abide such or- der as our said court shall make in his behalf; and hereof fail not, and bring this writ with you. Witness ourselves at Westminster, the day of in the 33d year of our reign. Argbn. Winter. Indorsed, " By the court, at the suit of James Willis, for want of appearance " (or answer). Label. To the sheriff" of Wiltshire, "An attachment against Edward Willis for not ap- pearing at the suit of James Willis, returnable iu ," etc. ^ The attachment answers to the apprehensio realis of the Roman law, which followed the primum et secundum decretum upon a citation from a plebeian, and immediately after the citation itself from the prince. The subpena being equivalent with us to the citation from the prince, the defendant is immediately coniumax on disobedience ; the attachment, therefore, or apprehensio realis, follows. It dififers from the capias at common law in this, that upon a cepi corpus re- turned on a capias, the sheriff is obliged actually to produce the body of the defendant in court, or he is liable to be amerced under Stat. West. z. c. 39 ; but in an attachment, it is suflBcient if he de- 08 OF APPEARANCE TO Upon this writ the sheriff returns either cepi corpus, I have taken the defendant, or non est inventus, he is not to be found. If the defendant is apprehended/ he is detained in custody until he enters his appearance, and puts in an answer to the plaintiff's bill ; or on his refusal an habeas corpus is awarded, commanding the sheriff to bring him into court, or a messenger of the court is dis- patched for that purpose. A special mandate is neces- sary to authorize the sheriff to remove the defendant out of the county, his authority having been exhausted in taking him. If the sheriff return non est inventus, an additional pro- cess is awarded against the defendant, an attachment with proclamation, which, besides the ordinary form of attach- ment, directs the sheriff to cause public proclamations to be made throughout the county, to summon the defendant on his allegiance, personally to appear and answer the charges brought against him. tain the defendant in custody till compliance. The words of the attachment being only " quod habeas ejus corpus ad respondendum ;" and not as in the capias, '' quod habeas corpus ejus coram nobis ad responden- dum." The reason of which might , be, that as the purpose of the attachment was merely to punish the defendant for his contempt, its end was sufficiently answered by his imprisonment. See For. Rom. 82. 'It is to be observed that although the attachment issues against all persons indiscriminately, yet it is not executed upon the per- sons of peers or members of parliament, those persons being, for reasons of policy, privileged from every species of arrest; and the use of the attachment issuing is only for the purpose of grounding the subsequent process of sequestration. The same may be observed with respect to infants, upon whom the attachment, though sealed and entered as in common cases, is never served; but an order founded on the attachment is made to bring the infant into court, where a guardian is appointed to defend his suit. A SUIT IN EQUITY. 89 The form of this writ is as follows : An Attachment with Proclamations in Chancery. George the Third, by the grace of God, of Great Britiain, France, and Ireland, King, Defender of the Faith, and so forth, to the sheriff of Berkshire, greeting : We command you, on our behalf, to cause public proclamation to be made in all places within your baili- wick, as well within liberties as without, wheresoever you shall think it most convenient, that Edward Willis do, upon his allegiance, on the day of person- ally appear before us, in our court of chancery, where- soever it shall then be ; and, nevertheless, in the mean- time, if you can find the said Edward Willis, attach him, so as to have him before us, in our said court, at the time before mentioned, there to answer to us, as well touching a contempt, etc. (As in the single attach- ment.) Should this writ also be returned non est inventus, and the defendant still remain in contempt, a commission of rebellion is awarded against him for not obeying the king's proclamations, according to his allegiance. This commission is generally directed to four commissioners,' therein named, who are jointly and severally commanded to attach the defendant, wherever he may be found within the kingdom. 'The reason given by Gilbert for tliis process being directed to commissioners under the great seal, and not like the writ of attach- ment to the sheriff, is, " that the defendant is a, rebel and con- temner of the laws, and to be dealt with as such ; and as the sheriff can not be supposed to be capable of executing all the pro- cesses directed to him in person, it may be inconvenient to trust so great a power with the deputies of his appointment, and, therefore, the court appoints its own commissioners, who are intrusted to do every thing very carefully, and are answerable to the court for their miscarriage." For. Eom. 77. 90 OP APPEABANCE TO The form of this writ is as follows : Commission of Bebellion. George the Third, by the grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, etc., to Eamber Tyler, William Fowler, John Miller and Thomas Porter, greeting : "Whereas, by public proclamations made on our behalf by the sheriff of Middlesex in divers places of that county, by virtue of our writ to him directed, Edward Willis hath been commanded, upon his allegiance, to ap- pear before us, in our court of chancery, at a certain day, now past, yet he hath manifestly contemned our said command ; wherefore, we command you, jointly and severally, to attach, or cause the said Edward Willis to be attached, wheresoever he shall be found, within our kingdom of Great Britain, as a rebel and contemner of our laws, so as to have him or cause him to be before us, in our said court, on, etc., wheresoever it shall then be, to answer to us, as well touching the said contempt as also such matters as shall be then and there objected against him, and, further, to perform and abide such or- ders as our said court shall make in that behalf. And hereof fail not. We also hereby strictly command, all and singular, mayors, sheriffs, bailiffs, constables, and other our officers and loj'al servants and subjects, whom- soever, as well as within liberties, as well as without, that they, by all proper means, diligently aid and assist you, and every one of you, in all things in the execution of the premises. In testimony whereof, we have caused these our letters to be made patent. Witness, ourself, at Westminster, the day of , in the thirty-fourth year of our reign. If the commission of rebellion is returned non est in- ventus, the court, on motion to that effect, will dispatch A SUIT IN EQUITY. 91 a sergeant-at-arms in seai-ch of the defendant. The ser- geant-at-arras is an officer by patent from the king, whose duty it is to attend upon the lord chancellor, and to execute the orders of the court upon those who in any respect contemn its jurisdiction. If the defendant is taken upon any of these processes, he is committed to the Fleet, or other prison, until he enter his appearance according to the forms of the court, and also clears his contempt by payment of the costs in- curred by his contumacious behavior. But if he like- wise eludes the search of the sergeant-at-arms, a seques- tration issues.^ This, like the commission of rebellion, is awarded upon motion, grounded on the return of the sergeant-at-arms, and is directed to certain commission- ers therein named, authorizing and commanding them io possess themselves of all his personal estate whatever, and the rents and profits of his real estates, until satis- faction is made of the plaintiff's demands, and the court shall further order. ^ The writ of sequestration, though the most efBcacious process of the courts of equity, was not introduced until the reign of Elizabeth, when Sir Nic. Bacon, then lord keeper, after violent struggles with the court of common law, established its use to en- force decrees of the court ; and it was not till long afterward that it was used as a mesne process of the court. See 1 Ch. Ca. 91 ; 2 ib. 44; 1 Vern. 58. North, in his entertaining life of his relation, the lord keeper Guilford, says " that sequestrations were not heard of till the Lord Couvetry'stime, when Sir John Read lay in the J'/cci (with 10,000?. in an iron cash chest in his chamber) for disobedience to a decree, and would not submit and pay the duty. This being repre- sented to the lord keeper as a great contempt and affront upon the court, he authorized men to go and break up his iron chest, and pay the duty and costs, and leave the rest to him, and discharge his commitment. From thence," says North, " came sequestrations, which now are so established as to run of course, after all other process fails, and is but in nature a grand distress, the best process at com- mon law, after a summons, such as a subpena is. 92 OF APPEARANCE TO The form .of the writ is as follows : A Sequestration in Chancery. George the Third, etc. To Samuel Leghorne, Peter Wilkins, Isaac Jones, etc. Whereas, James "Willis, com- plainant, exhibiting his bill of complaint to our court of chancery, against Edward Willis and William Willis, defendants ; and, whereas, the said Edwai'd Willis, being duly served with a writ issuing out of our said court, commanding him, under the penalty therein mentioned, to appear to and answer the said bill, has refused so to do, and thereupon our process of contempt has issued against him, unto a sergeant-at-arms. And, whereas, the said Edward Willis has of late absconded, and so con- cealed himself that the sergeant-at-arms has not been able to find him, as by the certificate of the said sergeant appears: Know ye, therefore, that we, in consideration of your prudence and fidelity, have given, and by these presents do give to you, any three or two of you, full power and authority to enter upon all the messuages, lands, tenements, and real estate whatsoever, of the said Edward Willis, and to take, collect, receive, and sequester into your hands, not only all the rents and profits of the said messuages, lands, tenements, and real estate, but also all his goods, chattels, and personal estate whatsoever; and, therefore, we command you, any three or two of you, that you do, at certain proper and convenient days and hours, go to and enter upon all the messuages, lands, tenements, and real estate of the said Edward Willis; and that you do collect, take and get into your hands, not only all the rents and profits of all his real estate, but also all his goods, chattels and personal estate, and keep the same under sequestration, in your hands, until the said Edward Willis shall fully answer the com- j'lainant's bill, and clear his contempts, and our said court make other order to the contrary. A SUIT IN EQUITY. 93 Witness, ourself, at Westminster, the day of , in the 33d year of our reign. Aeden, Winter. The sequestration is personally served upon the tenants by two of the commissioners, which is considered as a seizing and sequestering under the authority of the writ. An order is then procured for the tenants to attorn to the commissioners, who are amenable to the court for the rents and profits : This order is also personally served. Should the execution of the writ be forcibly obstructed, a writ of assistance may be sued out, directed to the sheriff of the county, and commanding him to assist the said commissioners in such execution.' ^ The whole chain of process is illustrated in the following case. Boudinot v. Symmes, Wallace, 138. The defendant, who resided in the territory northwest of the Ohio, when in Philadelphia, in the year 1796, was served with a sub- pena from the equity side of the court, to appear and answer the plaintiff's bill. He entered his appearance by Rawle; but put in no answer, and stood in contempt. In this situation the complainant took out an attachment to compel an answer ; and was proceeding with the other process used in Westminster, namely: an attachment, with proclamations, commission of rebellion, and sequestration. But in April sessions, 1799, the practice in this case being men- tioned, Iredell and Peters were of opinion that it was not necessary nor practiceble to pursue the English practice ; but that the bill might be taken pro confesso, on the return of the first attachment, non est inventus. But in April sessions, 1800, Chase and Peters pre- sent, it was held that such mode of proceeding was inadmissible; that until some legislative provision or rule of practice was estab- lished, the method which obtained before must be pursued. Ac- cordingly, the decree pro confesso was set aside ; and the plaintiff proceeded to issue an attachment, with proclamations, which, being also returned non est inventus, IngersoU, after stating these proceed- ings, said that the next process was a commission of rebellion, which, regularly, must have fifteen days between the test and return, as all other process of contempt should have ; but as it was desir- able to have an order for sequestration in this term, so as that the bill might be set down for hearing, and taken pro confesso, which could not be until the commission of rebellion returned non est, and 94 OF APPEARANCE TO The reader will believe that the several processes we have been enumerating, as issuing against a defendant, to compel his appearance to the plaintiff's bill, would be ineffectual against an aggregate corporation ; which, being invisible, and existing only in intendment and consideration of law, can not be served with any per- sonal process. The method, therefore, of enforcing ap- pearance from a corporation is by a distringas, awarded against their lands and tenements, and directed to the a sequestration ordered. Har. Ch. Prao. 203 ; 3 Black. Com. 443, 444. Ue, therefore, moved for an order that a commission of rebellion do issue against the defendant, returnable immediately, directed to the marshal, etc. He said that it was in the discretion of the court, under circumstances, to expedite this process for con- tempt; that in this case they were merely formal, the defendant was out of the state, and would not answer ; that great delay had been already incurred, and it was due to justice that the plaintiff should have the benefit of a decree by default. He cited Hinde's Prac. 122, to show that the court might order the return immediate. Griffith, J. This is a special motion, and requires notice. Has Mr. Rawle had notice ? Ingersoll. He has not; but he will not except on that account. I will answer for that ; if he objects, the order shall be vacated. Curia. Take your order ; it is perfectly reasonable. The whole proceeding in these cases, as applied to the state of things in this court, is dilatory, nugatory, and expensive; it must be altered. The commission was immediately made out, and returned non est. The court then appointed a sergeant-at-arms. and directed him to go in quest of the defendant. The sergeant, not being able to find him, returned to the court, that the defendant eluded his search, whereupon a sequestration was ordered. Ingersoll, on producing the bill, moved to have the cause set down for hearing; which was done. And upon his further motion, it was ordered that the plaintiff's bill be taken pro confesso, and that a, decree be entered accordingly; with leave, nevertheless, to the de-~ fendant to move at the next sessions of the court to set it aside upon filing an answer ; and that proof of the service of this order, made before any magistrate of the North Western Territory, should be held suflSoient. A SUIT IN EQUITY. 95 sheriff of the county or place where such corporate body is resident. The following is its form : A Distringas in Chancery. George the Third, etc., to the sheriff of the city of London, greeting — We command you to make a distress on the lands and tenements, goods and chattels, of the mayor, common- alty and citizens of our said city of London, within your bailiwick ; so as neither the said mayor, common- alty and citizens, nor any other person or persons for them, may lay his or their hands thereon, until our court of chancery shall make other order to the contrary; and, in the meantime, you are to answer to us for the said goods and chattels, and the rents and proiits of the said lands, so that the said mayor, commonalty and citizens, may be compelled to appear before us, in our said court of chancery, wheresoever it shall then be, there to answer to us, as well touching a contempt, etc. (as in the attachment). "Witness, etc. Arden. "Winter. After which, if the corporation continue in contempt, there issues an alias and a pluries distrignas ; and lastly, the sequestration is awarded against their lands, etc., as in other cases ; with this difference only, that when the sequestration is once awarded against a corporation, it can not, as against private persons, be stayed on enter- ing their appearance. After order is obtained for a sequestration against a defendant, the complainant's bill is taken -pro confesso, and a decree made accordingly ; and the sequestrators proceed, under the control and authority of the court, actually to sequester the estates of the defendant, agree- able to the tenor of the writ, in order to make satisfac- tion for the injuries complained of in the bill. This bill of sequestration, therefore, as Sir William Blackstone 96 OF APPEARANCE TO remarks, since it never issues till after the plaintiff has obtained a decree on confession, seems rather intended to enforce the performance of the decree of the court, than to be in the nature of process to bring in the de- fendant : and it is the only remedy, by the constitution of our courts of equity, that a plaintiff has, in case the defendant absolutely refuse to appear ; for unless he come in and contest the suit, the court has no authority to investigate the merits of the subject, nor can there be any proof against an absent person. The benefit of the sequestration, therefore, which answers to the primum decretum of the Roman law, and to the quantum dam- nificatus, or damages of the common law, is the only satisfaction which the plaintiff can obtain. If, however, the defendant voluntarily, or upon return of either of the preceding processes, appears to the com- plainant's bill, he is then within a definite time (this is fixed by the practice of the court at eight days, exclusive of the day of appearance), to give in upon oath the matter he has to oft'er in his defense.'' ^ By the ancient civil law, where the libel was preferred to the judge, a copy was delivered to the reus or defendant, who was to make his defense in ten days; if he suffered this time to elapse, the edicium primum issued against him, and after ten days more the edictum secundum ; after a further period of ten days, the edicium peremptorium ; and lastly, if he still held out for the space of ten days longer, judgment was given against him on default; and these were called the dilationes, or times to answer. But after the establishment of provincial judges, the dilationes were abolished, and the actor, or plaintifl^ upon citing the reus, was required to enter into surety to end his suit in two months, and at the same time to deliver a copy of his libel to the reus, who superscribed an acknowledg- ment of its receipt; after which he was allowed twenty days to de- liberate whether he would yield to the actor's demands, or contest the suit; and at the expiration of these twenty days, if no defense came in, he was presumed to acquiesce in the plaintiff's claims, and judgment was given accordingly. For. 53, C. 5, Code. lib. 3, tit. 9. But at the institution of our court of chancery, the time allowed A SUIT IN EQUITY. 97 The regulations which have been adopted by the Supreme Court of the United States on the subject of appearance will be found in rules 17 and 18 in the Appendix. by the civil law being thought too long, and that by the canon law (where it was appointed at the discretion of the judge) too uncer- tain, the subpena or citation was at first made returnable on a day certain, in term, which (the whole term being considered as but one day in law), gave him the whole of that term to deliberate ; at the expiration of which he was to put in his defense ; but this being found inconvenient and partial on account of the different lengths of the several terms, and the different periods of the term at which the subpena might be served, they at length came to the general rule we have mentioned in the text. See For. Rom. 89. 7 98 OF DEFENSE TO CHAPTEE III. OF DEFENSE TO A SUIT IN EQUITY. The defendant, having appeared, proceeds to defend himself against the allegations of the plaintifi"'s bill. This may be done according to the nature of the case — by disclaimer, by demurrer, by plea, by answer, and by cross bill. AH or any of these defenses may be joined ; and formerly it was necessary that each should relate to a separate and distinct part of the bill. This doctrine, however, has been abolished by the recent orders in the English chancery, and the rules of practice in ecjuity of the Supreme Court of the United States. (See Appendix, rule 37.) If the defendant has no interest in the subject con- cerning which the bill is exhibited (which is not unfre- quently the case in respect to one or other of the various defendants, who, from an over-abundance of caution, are sometimes made parties to a suit), he may avoid the plaintiff's bill by A Disclaimer. A simple disclaimer is a renunciation by the defendant of all interest or claim to the subject of demand made by the plaintiff in his bill. It can not be used, however, for the purpose of depi'iving the plaintiff of his right to a full answer, where it is evident that, notwithstanding the disclaimer, the defendant ought to be retained as a party to the suit. A mere witness may avoid answering by a disclaimer; but it is otherwise with an agent, charged by the bill with a personal fraud ; for the law does not permit any man to disclaim a liability. A SUIT IN EQUITY. 99 The Disclaimer of Samuel Dickinson, one of the Defendants to the Bill of Complaint of James Willis, an infant, by John Willis, his father and next friend} This defendant, saving and reserving to himself, now and at all times hereafter, all manner of advantage and benefit of exception and otherwise that can or may be had and taken to the many untruths, uncertainties, and imperfections in the said complainant's bill of complaint contained, for answer thereto, or unto so much, or such part thereof as is material for this defendant to make answer unto, he answers and says, that he doth fully and absolutely disclaim all manner of right, title, and interest ^ The form we have given is of a disclaimer only, because that alone is the defense we are at present considering ; but it is rightly observed by Sir J. Mitford, that a disclaimer can hardly be put in alone, for though the defendant may have been made a party by mere mistake, having never had an interest in the subject of the suit ; yet, an the contrary likewise may be the case, and he may for- merly have had an interest which he has since parted with, the plaintiff may require the disclaimer to be accompanied by an answer, as to whether that be the case or not ; and this is rendered still more necessary by the modern form of bills in equity, which re- quires a full and particular answer of the defendant, not only as to whether the facts be as charged in the bill, but how otherwise, and in what particulars, they vary therefrom, and, consequently, there is no disclaimer alone to be met with in any of the books of prac- tice. The form we have given above, therefore, should, generally speaking, be introduced by an averment that the said defendant doth not know that he, this defendant, to his knowledge or belief, ever had, or did claim, or pretend to have or claim, nor doth he now claim, or pretend to have any right, title, or interest of, in, or to the said legacy of £800, or other the estates and effects of the said Thomas Atkins, deceased, in the said complainant's bill set forth, or in any part thereof, either by gift, grant, assignment, or otherwise howsoever, or of, in, or to any other the matters and tilings in the said complainant's said bill charged and set forth ; nor did this de- fendant ever, nor now doth, intermeddle or concern himself therein or thereabout, or in or about any part thereof, in any manner whatr soever. And this defendant doth disclaim, etc. 100 OP DEFENSE TO whatsoever, in and to the legacy of £800 in the said bill of complaint mentioned, and all other the estate and effects of the said Thomas Atkins, deceased, in the said hill named, and in and to every part thereof; and this defendant doth deny all and aU manner of unlawful com- bination and confederacy unjustly cha,rged against him in and by the said bill of complaint, without that any other matter or thing in the said bill contained material or necessary for this defendant to make answer unto, and not herein well and sufficiently answered unto, confessed or avoided, traversed or denied, is true ; all which mat- ters and things this defendant is ready to aver, maintain and prove, as this honorable court shall award, and humbly prays to be hence dismissed, with his reasonable costs and charges, in this behalf most wrongfully sus- tained. If there appear on the face of the plaintiff's bill any defect or objections which may be offered in bar of his suit, it should be presented to the court by a Demurrer. A demurrer admits the facts, as alleged in the bill, to be true, but denies the right of the plaintiff upon those facts, as therein set forth, to proceed and call upon the defendant to answer. It has been called an answer in law, though not so according to the common language of practice. A demurrer, which goes to the whole bill, and upon argument or otherwise, is allowed, puts an end to the suit, although the court will give the plaintiff leave to amend his bill, upon payment of costs. As the de- fendant, without demurring, may, in general, insist upon the same objections at the hearing, its pirincipal use is to avoid a discovery which may prejudice the defendant, cover a defective title, or prevent unnecessary expense and delay. A demurrer should express the grounds upon which it A SUIT IN EQUITY. 101^ is founded, with positiveness, precision, and certainty, leaving nothing to supposition or inference. If it does not extend to the whole bill it should designate the par- ticular parts which it is intended to embrace ; otherwise the court will be compelled to examine the entire bill to discover them. A demurrer may be either to the relief prayed, or to the discovery only, or to both, and the defendant may assign as many causes of demurrer as he pleases, either to the whole bill or any part thereof. According to the present rule in England, if the demurrer is good to the relief it will be so to the discovery ; if, therefore, a plaintiff is entitled to the discovery alone, and goes on to pray for relief also, a general demurrer to the whole bill will be good. The rule which pi-evails in the courts of the United States, and of New York, is different, and if the bill' of the plaintiff is good for either discovery or relief, he will not be prejudiced by having asked for too much. The principal grounds of a demurrer to the relief prayed, are : 1. That the case made by the bill does not come within the description of cases in which a court of equity as- sumes the power of decision. The nature and limits of the jurisdiction of courts of equity can not be discussed in a treatise of this character. It is sufficient to state the general rule, that it extends to every case in which the plaintiff" has a right, and the courts of law do not furnish a plain, adequate, and complete remedy for its protection. Thus, if a bill should be brought for the possession of land, which is commonly called an ejectment bill, it would be demurrable ; for the proper redress is at law. It is to be recollected, however, that in many cases courts ©f equity have assumed a concurrent jurisdiction with courts of law, as in cases of account, partition, assign- ment of dower, etc. A demurrer, therefore, to such a 102 OF DEFENSE TO bill, because the subject-matter of the suit was within the cognizance of a court of law, would not be good. 2. That the plaintiff", by reason of some personal dis- ability, has no right to institute a suit ; as in the case of an infant, or married woman, or lunatic, where no next friend or committee is named in the bill. 8. That the plaintiff has no interest in the subject of the bill, or proper title to institute a suit concerning it ; as where an executor does not appear, by his bill, to have proven the will of his testator, or where it appears that he has done so, in an improper court, or where a plaintiff' claimed under a will, when it was discovered that on a proper construction thereof he had no title. 4. That there is no pri\nty between the parties, and that although the plaintiff may have an interest in the subject of the suit, he has no right to call upon the de- fendant concerning it. Thus, although an tinsatisfied legatee has an interest in the testator's property, and a right to have it applied, in due course of administration, to the satisfaction of his claim, he can not, ordinarily, file a bill against the debtors of the estate for the purpose of compelling them to discharge his legacy. 5. That the defendant has no interest in the subject- matter of the suit which can lay him liable to the plain- tiff; as where a bankrupt is made defendant to a bill, which is filed against his assignees. 6. That all persons materially interested in the subject of the suit have not been made parties thereto, and that the bill is therefore insufiB.cient to answer the ends of com- plete justice. A demurrer, for want of proper parties, should designate them, that the plaintiff may be enabled to amend his bill. 7. That the bill is multifarious ; as where it demands several matters of different natures against several de^ fendants A SUIT IN EQUITY. 103 The principal grounds of demurrer to bills of discovery only, are : 1. That the case made by the bill is not one in which a court of equity assumes jurisdiction to compel a dis- covery ; as where a discovery is sought to be used in aid of criminal proceeding ; or before arbitrators ; or in sup- port of an action contrary to public policy ; or where it relates to facts which were communicated to the defend- ant in professional confidence, while he was acting as attorney or arbitrator. 2. That the plaintiff has no interest in the subject which will entitle him to call upon the defendant for a discovery ; as where the plaintiff seeks a discovery, to support an action at law, and the case stated by the bill is not sudi as to maintain an action. 3. That the defendant has no interest in the subject- matter of the controversy, which would prevent ^ his being examined at law, and is, therefore, a mere witness. 4. That the discovery, if obtained, would be immate- rial. The following is the form of a general demurrer, for want of equity, adapted to the original bill, which we have inserted. It may, however, be considerably abbre- viated. The joint and several Demurrer of Edward Willis and Will- iam Willis, tioo of the Defendants to the Bill of Complaint of James Willis, an infant, by his father and next friend. These defendants, by protestation,' not confessing any ' As it was imagined that a defendant would in no case endeavor to avoid the plaintiff's bill by demurrer, when he could venture bona fide to deny the truth of its allegations upon oath, it very early became an established rule of judgment in courts of equity, that everything to whicli the demurrer extends is true. Hence arose the practice of introducing a protestation against the truth of any of the facts alleged by the bill ; but it has no weight with the court, and is entirely useless. 104 OF DEFENSE TO of the matters, in and by said bill complained of, to be true in manner and form, as the same are set forth, sever- ally say that they are advised that there is no matter or thing in said bill, good and sufficient in law, to call these defendants to account in this honorable court for the same ; but that there is good cause of demurrer there- unto, and they do demur accoi'dingly ; and for causes of demurrer, say, that said bill, in case the same were true, contains no matter of equity whereon this court can ground any decree, or give complainant any relief as against these defendants. Wherefore, and for divers other errors in said bill contained and appearing on the face thereof, these defendants do demur thereto, and humbly crave the judgment of this honorable court, whether they are compellable, or ought to make any answer thereunto otherwise than as aforesaid. And these defendants humbly pray to be hence dismissed with their costs and charges, in this behalf most wrongfully sustained. A. STAINSBr. The commencement and conclusion may be varied so as to suit the following additional forms : Demurrer for want of Privity. That it appears by the said complainant's said bill, that there is no privity between the said complainant and this defendant, to enable the said complainant to call on this defendant for payment of any debt due to the estate of the said testator from this defendant ; wherefore, etc. Demurrer for Multifariousness. That it appears by the said bill, that the same is ex- hibited by the said complainant against this defendant, and A. B., C. D., E. F., and G. H. as defendants thereto for several distinct matters and causes, in many whereof, as appears by the said bill, this defendant is in no way interested ; and, by reason of such distinct mattei's, the A SUIT HSr EQUITY. 105 said bill is drawn out to a considerable length, and this defendant is compelled to be put at charges in respect thereof; and by joining distinct matters together, which do not depend on each other, the proceedings in the progress of the said suit will be intricate and prolix, and this defendant put to unnecessary charges and expenses, in matters which in no way relate to or concern him ; wherefore, etc. Demurrer for want of Parties. That it appears by the said complainant's bill, that A. B., therein named, is a necessary party to the said bill, in as much as it is therein stated that C. D., the testator in the said bill named, did, in his lifetime, by certain conveyances made to the said A. B., in consideration of $ , convey to him, by way of mortgage, certain estates in said bill particularly mentioned and described, for the p,urpose of paying the said testator's debts and legacies ; but the said complainant has not made the said A. B. a party to the said bill. Wherefore, etc. Demurrer to a Bill of Discovery, where the Defendant could be examined as a Witness. That the said defendant has not, in and by his said bill, stated, charged, or shown that the defendant has, or pre- tends to have, any right, title, or interest in the matters and things complained of by the said bill, or any of them ; or any right to call on this defendant, in a court of equity, for a discovery of said matters and things, or any of them. And that for anything that appears to the contrary by said bill, this defendant may be examined as a witness in, this suit. Wherefore, etc. 106 OP DEFENSE TO Demurrer coupled with an Answer. The Demurrer of the Defendant, G. D., to part, and his Ansioer to the residue of the Bill of Complaint of A. B. (Set forth the demurrer as in any of the ahove forms, and proceed.) And as to the residue of said bill, this defendant, not waiving his demurrer, but relying thereon, and saving and reserving to himself now, and at all times hereafter, all manner of benefit and exception which can be had to the residue of said bill, for answer thereto, or to so much thereof as these defendants are advised is in any- wise material or necessary for them to answer unto, answer and say, that, etc. Every species of defense to a bill in equity is. required to be signed by counsel, as evidence of its propriety and sufficiency ; but as a demurrer alleges no. facts, but rests on matters apparent to the bill, it is not like an answer put in upon the oath of the defendant. In the courts of the United States, however, no demurrer is allowed to be filed unless upon the certificate of counsel that, in his opinion, it is well founded in point of law, and the affi- davit of the defendant, that it is not interposed for delay. The rules of the Supreme Court on the subject of de- murrers and pleas will be found in the Appendix, from the 31st to the 38th, inclusive. If the defects in the case of the plaintiff do not appear, upon a mere inspection of the bill, the objection must be ofl'ered in the shape of A Plea. A plea is' defined as a special answer, showing or rely- ing upon one or more things, as a cause why the suit should be either dismissed, delayed, or debarred : it does not, like a demurrer, rest on the facts charged in the plain- tiff's bill, but alleges other facts, to which he may reply. The office of a plea, generally, is, not to deny the equity, A SUIT IN EQUITY. 107 but to bring forward a fact which, if true, displaces it. As its object is to save time acd expense, it should not consist of a variety of circumstances, unless in their combiaed result they establish some one general fact which displaces the equity. The form of a plea, like a demurrer, commences with a protestation against confessing the truth of any matter. For the sake, however, of deciding upon the validity of the plea, the bill, so far as it remains uncontradicted, is assumed to be true. The extent of the plea, that is, whether it goes to the whole of the bill or only a part thereof, should be set forth distinctly. Then follow the defendant's grounds of objection to the jurisdiction of the court, the person of the plaintiff, or in bar of suit ; and these must be supported by averments, so clear, posi- tive and distinct, of every fact and circumstance essential to render it a complete equitable bar, that the plaintiff may be enabled to take issue upon its validity. ■ Pleas to the jurisdiction, to the person, or of any mat- ter recorded in the bar, do not require to be put in upon oath ; but the rule is otherwise as to pleas in bar, founded on matters in pais. Pleas have been arranged under four classes : 1, to the jurisdiction ; 2, to the per- son of the plaintiff; 3, to the bill, or the frame thereof; and 4, in bar. 1. A plea to the jurisdiction does not dispute the right of the plaintiff in the suit, but simply asserts either that his claim is not a fit subject of cognizance in a court of equity, or that some other tribunal is invested with the proper jurisdiction. It is difficult to disguise any ease which this plea would reach, so as to avoid a demurrer; but there may be instances to the contrary, and even false averments in the bill, which would leave the defendant no other means of protecting himself. If, for example, a bill in the Circuit Court of the United States should allege that the plaintifts and defendants were citizens of 108 OP DEFENSE TO different states (without which no jurisdiction would or- dinarily attach), the defendant can only contest this fact by a plea to the jurisdiction. The court of chancery being one of general equity jurisdiction, a mere allega- tion of the want of jurisdiction is not sufficient, but the plea must show by what means the jurisdiction has been lost, and by what court it is possessed. 2. A plea to the person merely disputes the ability of the plaintiff" to sue, without putting in issue the subject- matter of the controversy. It may assert either that the plaintiff is an alien enemy ; or that he is an alien, and the suit respects lands ; or that he is an infant, feme covert, lunatic, or bankrupt ; or that he is not the person whom he pretends to be in his bill ; or does not sustain the character which he assumes. 3. Pleas to the bill, or the frame of the bill, bear a close resemblance to pleas in abatement of the action at common law. "Without disputing the right of the plain- tiff to the relief which he seeks, they allege that the suit, as it appears on the record, is insufficient to answer pur- poses of complete justice, or ought not for some reason to proceed. The most usual of these pleas are either, 1, the pendency of another suit for the same matter in another court of equity ;' or, 2, the want of proper parties to the bill. 4. Pleas in bar are usually divided into three heads : 1, Pleas founded on some bar created by statute ; 2, Pleas founded on matter of record ; and 3, Pleas of matter in pais. 'The pendency of another suit for the same subject-matter in a court of law is not, however, a good plea. There are many cases in which a court of law would be incapable of ascertaining the merits of a controversy. The defendant, however, may put the plaintiff to his election whether he will proceed with his suit in law or equity ; and, if the former, the bill will be dismissed ; if the latter, an in- junction will issue to stay any further proceedings at law. A SUIT IN EQUITY. 109 Any statute, public or private, which may be a bar to the demands of the plaintift", may be pleaded, with the averments necessary to bring the case of the defendant within it. The most usual pleas of this character are of the statute of limitations and the sta.tute of frauds. Under the second head may be included the plea of a judgment at law of a court of recordi between the same parties, or a final decree or order of a court of equity in a suit between the same parties, and for the same subject- matter. To the last head of matters purely in pais belong the plea of a stated account, of an award, of a release, of a purchase for a valuable consideration, and of title in the defendant, obtained either by adverse possession for a length of time, or by deed or will. Pleas to bills which are brought only for discovery, are so nearly the same as the causes of demurrer to a bill of discovery, which we have before considered, that it is not important, in this brief treatise, to give them a separate consideration. Form of Pleas. The joint and several Plea of Edward Willis and William Willis, two of the Defendants to the Bill of Complaint of Ja.mes Willis, an infant, by his father and next friend, John Willis. These defendants, by protestation not confessing any of the matters in said bill contained to be true in man- ner and form, as the same are therein set forth, do plead thereunto; and for cause of plea say, that heretofore, and before said complainant exhibited his present bill in this honorable court, to wit : on the ninth day of February, L752, the said now complainant, together with John Willis, his father, did exhibit their bill of complaint iu this honorable court, against these defendants, for the same matters, and to the same effect, and for the like relief, as the said now complainant doth by his present 110 OF DEFENSE TO bill demand and set forth; to which said first bill these defendants did put in their joint and several answers, and the said complainant thereunto did reply; and other proceeedings were thereupon had ; and the said former bill is still depending in this court, and the matters thereof undetermined; and, therefore, the said defendants do plead the form#r bill, answer and proceedings, in bar to the present bill; and humblj' pray the judgment of this honorable court, whether it behooves them to make any other or further answer thereto than as aforesaid, and pray to be hence dismissed with their reasonable costs and charges, in this behalf most wrongfully sus- tained. A. Stainsby. Plea of Infancy, to a Bill exhibited without a Prochein Ami. (For the title and commencement, see above.) That the said complainant, before and at the time of filing his said bill, in which he appears as the sole complainant, was, and now is, an infant, under the age of twenty-one years, that is to say, of the age of or thereabouts, Therefore, etc. Plea of Coverture of the Plaintiff. That the said complainant, A. B., before, and at the time of exhibiting' her said bill, was, and now is, under the coverture of one C. D., her husband, who is still liv- ing, and in every respect capable, if necessary, of institut- ing any suit at law, or in equity, on her behalf. There- fore, etc. (concluding as in the preceding form.) If the plaintiff conceives a plea to be defective in point of form or substance, he may take the judgment of the court upon its sufficiency. Upon argument of the plea, it may either be allowed simply, or the benefit of it may be saved to the hearing ; or it may be ordered to stand for an answer. This latter order is usually made where the plea states matter which may be a defense to A SUIT IN EQUITY. Ill the bill, thongli not, perhaps, proper for a plea, or in- formally pleaded. The court will permit a plea which is good in sub- stance, though irregular in shape, to be amended ; but that this indulgence may not be used for the purposes of delay, it will be granted only upon condition that the party agree to amend by a very short day, and that he account satisfactorily for the occurrence of the mistake, and explain the nature of the amendment. If there is nothing in the bill of the plaintiff to which the defendant is able or willing to demur; and if he have no intrinsic matter, which he can offer by way of plea ; or if his plea, or demurrer, has been overruled, he may proceed to controvert the claims of the plaintiff, by An Answer. An answer generally controverts the facts stated in the bill, or some of them, and states other facts, to show the rights of the defendant in the subject of the suit; but sometimes it admits the truth of the case made by the bill, and either with or without stating additional facts, submits the questions arising upon the case thus made to the judgment of the court. In all cases where relief is sought, an answer consists of two parts ; first, the de- fense to the case made by the bill, and second, the re- sponse of the defendant to the interrogatories of the plaintiff'. Where a defendant submits to answer at all, he must make a full, frank and explicit disclosure of all matters material or necessarj'- to be answered, whether resting within his own knowledge, or upon his informa- tion or belief. He can not be required to answer any in- terrogatories which would either lead to his own crimi- nation, or which are irrelevant or immaterial to the case of the complaint. 112 OF DEFENSE TO Form of Answer. The joint and several Answers of JEdward Willis and Wil- liam Willis, two of the Defendants to the Bill of Complaint of James Willis, an infant, by John Willis, his father and next friend. These defendants, now and at all times hereafter, re- serving all manner of benefit and advantage to themselves of exception to the many errors and insufficiencies in said bill contained, for answer thereto, or unto so much or such parts thereof as these defendants are advised is material for them to make answer unto ; they answer and say : They admit that Thomas Atkins, in said bill named, did duly make and execute such last will and testament in writing, of such date and to such purport and effect as in said bill mentioned and set forth ; and did thereby bequeath to the complainant, James Willis, such legacy of £800, in the words for the purpose mentioned in said bill, or words to a like purport and effect. They further admit that the said testator, Thomas Atkins, did by such will appoint these defendants executors thereof, and that the said testator died on or about the 20th day of Decem- ber, 1748, without revoking or altering the said will. And these defendants further admit that they, some time after, to wit : about the month of January', 1750, duly proved said will in the prerogative court of the Arch- bishop of Canterbury, and took upon themselves the burden of the execution thereof; and they are ready to produce said probate, as this honorable court shall direct. They further admit that the said complainant, James "Willis, by his said father, did, several times, since the said .legacy of X800 became payable, apply to them to have the same paid or secured for the benefit of said complainant, which these defendants decline to do, by reason that the said complainant was, and still is, an in- fant, under the age of twenty-one years. Wherefore, A SUIT IN EQUITY. 113 these defendants could not, as they are advised, be safe in making such payment, or in securing said legacy, in any manner for the benefit of said complainant, but by the order and direction, and under the sanction of this ■ honorable court. And these defendants further answering, say: That by virtue of the said will, they possess themselves of the real and personal estate, goods, chattels, and effects of the said testator, to a considerable amount ; and they admit that assets are come to their hands, sufficient to satisfy said complainant's legacy, and subject to the payment thereof; and they are willing and desirous, and do hereby offer to pay the same, as this honorable court shall di- rect, being indemnified therein. And these defendants deny all unlawful combination in said bill charged, with- out that any other matter or thing material for them to make answer to, and, not herein sufficiently answered, avoided, or denied, is true to the knowledge or belief of these defendants. All which matters and things these defendants are ready to aver and prove, as this court shall direct, and pray to be hence dismissed, with their reasonable costs and charges, in this behalf most wrong- fully sustained. G. Maddocks. Titles of Answers. (By an infant.) The answer of C. D., an infant, under the age of twenty-one years, by J. E., his guardian (one of the), defendant, to the bill of complaint of A. B., com- plainant. (By a single defendant.) The answer of C. D., defend- ant, to the bill of complaint of A. B., complainant. (Joint answer by adults and infants.) The joint and several answers of P. H., and R., his wife, and of D. V. and C. E., infants, under the age of twenty-one years, by G. M. D., their guardian, defendants to the bill of com»^ plaint of A. B., complainant. 8 114 OF DEFENSE TO . ("Where the bill misstates the names of defendants.) The joint and several answers of J. D., in the bill called W. D., and of C. F., in the bill called G. F., defendants to the bill of complaint of A. B., complainant. (By husband and wife.) The joint answer of C. D., and S., his wife, defendants, etc. (By a lunatic or idiot.) The joint answ^er of C. D., a lunatic (or idiot, or habitual drunkard), by J. T., his guardian ad litem, and J. T., committee of the said C. D., defendants to the bill of complaint, etc. Commencements of Answers. (Joint answer.) These defendants, and (as in form above) each answering for himself, and not the one for the other, jointly and severally answer, and say that, etc., and these defendants deny all, etc. (By an infant.) This defendant, answering by his said guardian, saith that he is an infant of the age of years, or thereabouts, and he therefore submits his rights and interests in the matters in question in this cause to the protection of this honorable court ; without this, that, etc, (By a formal party, who is a stranger to the facts.) This defendant, saving and reserving to himself, etc. (as in form above), answers and says that he is a stranger to all and singular the matters and things in the said com- plainant's bill of complaint contained, and, therefore, leaves the complainant to make such proof thereof as he shall be able to produce ; without this, that, etc. Conclusions of Answers. (Where a party claims the same benefit of defense as if the bill had been demurred to for want of equity.) And this defendant submits to this honorable court that all and every' of the matters in the said complainant's bill, mentioned and complained of, are matters which A SUIT IN EQUITY. 115 may be tried and determined at law, and with respect to which the said complainant is not entitled to any relief from a court of equity ; and this defendant hopes he shall have the same benefit of this defence as if he had demurred to the said complainant's bill. And this de- fendant denies, etc. The answer must be signed and sworn to by the de- fendant, unless the plaintiff", in his bill, should expressly dispense with the necessity of doing so. The answer of a corporation aggregate is put in under their common seal. Where an infant is defendant, his answer is put in by a guardian ad litem., appointed specially for that pur- pose by the court. It is usual for the guardian to file a mere general answer, submitting the rights of the infant to the court; but it is his duty to ascertain the rights of his ward, and to put in a special answer where it is necessary or advisable. And the infant, on becoming of age, is entitled to an order, allowing him to put in a new answer, upon his showing to the satisfaction of the court that it is necessary to protect his rights. A mar- ried woman answers with her husband ; except when, under special circumstances, and by order of court, she is allowed to answer separately, when she answers by her next friend. There is still another species of defense to which it is sometimes necessary for a defendant to resort, in con- junction with one or more or all of those which have been already mentioned. Where the defendant is unable to make a complete defense to the plaintiff''sbill, without the possession of some facts which rest in the knowledge of the plaintiff himself, or some of the co-defendants to the suit, it may become expedient, for the purpose of procuring such discovery, to exhibit a cross-bill against the plaintiff, or such co-defendant. J^ cross-bill is not, however, confined to cases in which a discovery is neces- sary, but is proper whenever a full decree, by which" jus- 116 OF DEFENSE TO tice is done to all parties, can not be rendered, without giving to two or more defendants an opportunity of litigating some question which arises in a cause. Unless the cross-bill is tiled for the purpose of relief as well as discovery, in which case it partakes of the nature of an original bill, it is regarded as a mere auxiliary proceed- ing, which does not impose upon the plaintiff the neces- sity of alleging any ground of equity to support the jurisdiction of the court. The cross-bill was derived from the canon law. "When the reus, or defendant, was brought in to answer, he was said to be convened, which in the language of canonists was called conventio, because the plaintiff and defendant met to contest ; and since the defendant might have demands against the plaintiff, he had liberty to exhibit a bill against him also, which they called re conventio. Form of a Cross Bill, in the nature of a plea puis darrein continuance. (Usual commencement.) Complaining showeth unto your honor, your orator, A. B., of, etc., that C. D., of, etc., the defendant hereinafter named, on or about the day of , filed his bill of complaint in this hon- orable court against your orator, thereby praying (state the prayer in the bill), and your orator being duly served with process subpena, appeared and put in his answer thereto, to which answer the said C. D. replied ; and issue being thus joined, witnesses were examined on both sides and the proofs closed ; whereupon the said cause was noticed for hearing by the said C. D., before your honor as by said bill, and other pleadings and pro- ceeding in the said cause, now remaining filed as of rec- ord in this honorable court, reference being thereunto had, will more fully appear. And your orator further showeth unto your honor that the said cause has not yet been heard ; and on or A SUIT IN EQUITY. 117 about the said C. D., by a certain writing of release bearing date the day of , did demise, release, and forever quit claim, unto your orator, his heirs, exec- utors, administrators, the several matters and things complained of in and by the said bill of the said C. D., and in question in the said suit, and each and every of them, and of all sums of money then due and owing, or thereafter to become due or owing, together with all, and all manner of actions, causes of actions, suits, and demands whatsoever, both at law and in equity or other- wise howsoever, which he, the said C. D., then had, or which he should or might at any time or times here- after have, claim, allege, or demand, against your orator, for or by reason or means of any matter, cause, or thing whatsoever, from the beginning oi the world to the day of the date of the said deed or writing of release ; as by the said release, reference being thereunto had, will appear. And your orator hoped that in consequence of the said release the said C. D. would not have proceeded in the said suit against your orator; but the said C. D., combining and confederating, notwithstanding the said release, threatens and intends to proceed in the said suit, and to bring the said cause on for hearing in due course; and he pretends that no such release was ever executed by him, or if so, that the same was obtained by fraud and surprise, and therefore void. Whereas, your orator charges that the same was in every respect fairly and properly obtained by your orator, and duly executed by the said C. D. And your orator further charges that under the cir- cumstances aforesaid he is unable to put the said release in issue, or to use the same as a plea in bar in the said suit. All which actings and pretenses are contrary to equity and good conscience, and tend to the injury and oppression of your orator. In tender consideration whereof, and forasmuch as 118 OF BEFENSE TO your orator has no remedy without the assistance of a court of equitj', etc. To the end, therefore (interrogatories), and that the said release may be established, and declared by this hon- orable court a sufficient bar to any further proceedings by the said 0. D., in the said suit ; and that the bill of the said C. D. therein, may, under the circumstances, be forthwith dismissed with costs (and for general relief). May it please (prayer for subpena). In the English practice the answer of a defendant who resides in the country, i. e., beyond twenty miles from London, is taken by commissioners appointed for that purpose. The form of the commission is as follows : A Dedimus Potestatem in Chancery to take a Defendant's Plea, Answer, or Demurrer. George the Third, by the grace of Grod, of Great Britain, France, and Ireland, King, Defender of the Faith, and so forth. To Andrew Simpson, Giles Mathew, Will- iam Fife, and Peter Sandes, greeting : Whereas, James Willis has lately exbibited his bill of complaint before us, in our court of chancery, against Edward Willis and William Willis, defendants. And whereas, we have, by our writ, lately commanded the said defendant, Edward Willis, to appear before us in our said chancery, at a certain day now past, to answer the said bill. Know ye, that we have given unto you, or any three or two of you, full power and authority, " in pursuance of the special order of our said court," to take the answer of the said defendant, Edward Willis,, on his corporal oath, upon the holy evangelists ; " or his jilea upon hia corporal oath," to be administered by you, or three or two of you ; " or his plea or demurrer without oath," to be respectively made to the said bill ; and. therefore, we command you, or any three or two of you, A SUIT IN EQUITY. 119 that, at such day and place as you shall think fit, you go to the said defendant, if he can not conveniently come to yon, and take his several answer, plea, or demurrer, respecLively, as aforesaid, to the said bill, the same being plainly and distinctly written upon parchment ; and when you shall have so done, you are to send the same closed up under the seals of you, or any three or two of you, unto us in our said court of chancery, without delay, wheresoever it shall be, together with this writ. Witness ourself at Westminster, the day of in the thirty-sixth year of our reign. Ardbn, WiNTBE. Indorsed, " By the court." If the plaintiff conceives that the admissions of the defendant's answer are alone sufficient to substantiate his case and entitle him to a decree of the court, he may proceed to set down the cause for hearing on bill and answer ; but if the discovery is incomplete, or the alle- gations of the bill insufficiently replied to, the plaintiff may prefer exceptions to the defendant's answer and require it to be more full and particular. 120 EXCEPTIONS TO CHAPTER IV. EXCEPTIONS TO A DEFENDANT'S ANSWER. If the answer of the defendant, when filed, appears to he defective or evasive, or scandalous and impertinent, the plaintiff may take advantage of such insufficienay by exceptions in writing thereto, in like manner as the de- fendant may avail himself of objections to the plaintiff''s' bill by plea or demurrer. The resemblance which gen- erally prevails between the practice of our courts of equity and that of the ancient civil law does not extend to this proceeding. Exceptions to the defendant's an- swer are purely creatures of our own practice ; the dila- tiones, or exceptions of the civil law, being confined to the libellus articulatus, or bill, and answering in a great measure to the plea and demurrer of our courts. In truth, the responsio of the civil lavr could hardly admit of exceptions, for there the defendant was examined upon the charges of the libel viva voce by the judge, who obliged him, on pain of contumacy, to give direct and unequivocal answers to each article. Such, too, was the early English practice ; the masters in chancery, and the barons of the exchequer, being accustomed to take the defendant's answer to the several interrogatories of the bill, from his own mouth. But this duty, when subse- quently intrusted to counsel and commissioners, was sometimes so negligently performed as to render the ad- mission of exceptions necessary in justice to the parties. These exceptions must be in writing, and signed by coun- sel, and they must also state, with precision and accu- racy, the points in which the defendant's answer is de- fective, or they will be rejected as vague and impertinent. A defendant's answer. 121 And care must be taken to omit no point to whicli an exception would lie, as the rules of the court do not per- mit any others to be afterward added. No exception can be taken to the answer of an infant, because he is not bound by it, and may put in a new answer when he becomes of age. It may be stated generally that any answer will be considered insufficient, in which the de- fendant does not fully respond, according to the best of his knowledge, remembrance or belief, to every material allegation, charge or interrogatory in the bill. The fol- lowing is the usual Form of Exceptions to an Answer in Chancery. Between < James "Willis, by, etc. Complainant, and Edward and Wm. Willis, Defendants. Exceptions taken by the said complainant to the joint answer of the said defendants to his bill of complaint in this cause. First Exception. — For that the said defendants have not, according to the best of their information, knowl- edge and belief, set forth and discovered in their said answer, whether the said testator, Thomas Atkins, in the complainant's said bill named, duly made and executed such last will and testament in writing, of such date, and of such purport and efl'ect as in said bill mentioned, etc. (pursuing the words of such interrogatories of the bill as are not sufficiently answered.) Second Exception. — For that the said defendants have not, according to the best of their knowledge, informa- tion and belief, set forth and answered whether the said complainant hath or hath not, by his father and next friend, applied to the said defendants, etc., or how other- wise. 122 EXCEPTIONS TO In all which particulars the complainant is advised that the answer of the defendants is altogether evasive, imperfect, and insufficient. Wherefore, said complain- ant doth except thereto, and prays that the defendants may be compelled to amend the same, and to put in a full and sufficient answer to the complainant's bill. A. Manning. If the answer was filed in term time, the plaintifl" is allowed eight days after the expiration of the term to file his exceptions ; if the answer was filed in vacation, he shall have till the same period in the term immedi- ately following. If exceptions are not filed within these periods, the plaintiff is supposed to acquiesce in the de- fendant's answer ; unless, indeed, upon application to the court, he afterward obtains leave to file them nunc -pro tunc. If the defendant allows the propriety of the plain- tiff's exceptions, he must, within the time limited by the practice of the court, put in a further answer. But if the defendant thinks his answer to be sufficient, the plaintiff may enter an order, which is, of course, to refer the bill, answer, and exceptions taken thereto, to a mas- ter, who is directed to report whether the answer is suffi- cient in the points excepted to or not. If the master reports it to be insufficient, the defendant must submit to answer more particularly, unless, by exceptions to such report of the master, he appeals to the judgment of the court, and obtains a determination in his favor. The following is the form of Exceptions to a Master's Report as to the Sufficiency of an Answer. 'Between James "Willis, by John "Willis, his father and next friend, Complain- ant, and Edward "Willis and "Wm. "Wil- lis, Defendants. Exceptions taken by the complainant to the report of In Chancery. A defendant's answer. 123 E. Leeds, Esq., one of the masters of this court, made in this cause, and bearing date the day of 1798. First Exception. — That the said master has stated in his report, That, etc. (pursuing the words of the report), but the said master has not stated, or set forth, etc. (ac- cording to the nature of the objections.) Second Exception. — That, etc. In all which particulars the complainant doth except to the master's report, and humbly appeals therefrom to this honorable court. Wadman. If the defendant, on the confirmation of the master's report, persists in putting in an evasive or insufficient answer, the court, to punish his contumacy and compel his obedience, may commit him to prison, and direct the bill of the plaintifi'to be taken pro confesso. 124 INTERLOCUTORY PROCEEDINGS. CHAPTER Y. INTERLOCUTORY PROCEEDINGS. It would be impracticable, in a treatise of tbis nature, to describe every proceeding wbicb tbe variety of circum- stances occasionally attending tbe different stages of a suit may by possibility render necessary during its pro- gress. The present seems a fit place to uotice tbe most usual and important, wbicb relate eitber to amendments of tbe pleadings, tbe appointment of a receiver, tbe pay- ment of money in a court, or references to a master. These interlocutory applications may be made eitber orally, by motion, or where they partake of the nature of decretal orders, by petition in writing- A motion can be made only by or on behalf of a party to tbe record ; a petition may be preferred by any person, whether a party to the suit or not. These applications are addressed to the sound discretion of tbe court, and wherever its special interposition is invoked, must be supported by an affida- vit of the party to tbe facts on wbicb they depend. 1. Amendment of Pleadings. In a court of equity, which looks to tbe real and sub- stantial merits of a ease, matters of form are never suf- fered to prejudice tbe rights of a party ; and the liberty of amendment, in a greater or less degree, is allowed to all kinds of pleading. Whenever tbe plaintiff discovers a defect in his bill, arising from want of parties, or other reason, provided the cause is not at issue, he may obtain leave (as of course) to amend his bill. If the defendant, however, has put in bis answer, tbe plaintiff can intro- duce no matter by way of amendment, which has oc- INTEKLOCUTORY PROCEEDINGS. 125 curred since the filing of the bill. The amended bill must state so much of the original bill as may be neces- sary to introduce the amendments and no moi'e. The amended and original bill are considered, for most pur- I^oses, as one, and make up the same record; and if the defendant lias once appeared, it is unnecessary to serve him with a fresh subpena. The rule is much more strict as to answers and pleas put in upon oath. The court is exceedingly slow and re- luctant in acceding to applications to amend an answer in material facts. "Where a defendant has, through in- advertency, mistaken a date, or fallen into any verbal in- accuracy, he will be allowed to correct it; so, where the Xsarty relies upon new facts which have come to his knowledge since the answer was put in, or where it is manifest that he is taken by surprise, or where the mis- take is a mere oversight, there is less reason to object to the amendment, than where the whole bearing of the facts must have been well known before the answer was put in. 2. Appointment of a Receiver. Wherever there is danger of the waste or destruction of property, which is the subject of litigation, the court may commit it to the custody of a receiver during the pendency of the suit. A receiver may be appointed either before or after answer, or after a decree ; but to authorize an application before the hearing, the bill must state facts which show its necessity and propriety, and contain a prayer for the appointment. The court will not, how- ever, appoint a receiver before answer, unless it clearly appears, upon affidavit, that there is danger to the prop- erty or fund from the fraud or insolvency of the party having possession of it, or from some other I'eason. 126 INTEELOCUTORT PROCEEDINGS. 3. Payment of Money into Court. Whenever it appears, either hy the defendant's answer, or upon his examination before a master, or by a mastei-'s report, that a balance of money admitted to be due is in his hands, the court will direct it to be paid in. The court will not make this order before answer, unless in a case of manifest fraud. In the case of an executor ad- mitted to liave property of the testator in his hands, it was formerly supposed that the plaintiff must show either an abuse of his trust by an executor, or danger to the fund from his insolvency ; but an admission of a balance in his bands after payment of debts, is now held to be sufficient to justify the order. The court will, in its discretion, direct money which has been paid in, either to be deposited for safe-keeping in bank, or to be invested on good security. 4. The Beferenee to a Master. This is a proceeding of such frequent occurrence and great importance, as to form the subject of a subordinate system of practice. It occurs whenever the court feels an inability to grant relief without some preliminary in- formation. The matters of reference are almost as nu- merous as the subjects of the jurisdictions of the court. Wherever it is necessary in the progress of a cause to take an account-, to investigate the title of persons to property in suit, or make any other inquiries necessary to satisfy the conscience of the chancellor, or to perform some special ministerial act, such as to sell property, set- tle conveyances, or appoint new trustees, etc., the court refers the matter to a master. And to facilitate the per- formance of his duties, he is empowered to examine wit- nesses, and even parties to the cause, by interrogatories. This extrajudicial mode of investigation is of very great advantage, not only as the means of relieving the court INTERLOCUTORY PROCEEDINGS. 127 from burdensome and sometimes inconsistent duties, which are nevertheless necessary to the administration of justice, but as the means of extending the benefit of its jurisdiction to a much greater variety of cases. Order for Production of Papers before Hearing. On motion, etc., ordered that the defendant do, within three weeks, leave with the assistant register of this court, the several books of account, accounts, letters, and papers, relating to the matters in this cause, admitted by his answer to be in his possession ; and the complainant, his solicitor, agent, or counsel, is to be at liberty to in- spect and peruse the same, and to take copies thereof, or extracts therefrom, as he may be advised, at his own ex- pense; but the said defendant is to be at liberty to seal, upon oath, such parts of the said several books, etc., as do not in any manner relate to the matters in controversy in this suit. Order that Plaintiff Elect — and Election. It appearing that the complainant prosecutes the de- fendant both at law and in this court, for one and the same matter, whereby he is doubly vexed, thereupon, on motion of, etc., it is ordered that the complainant, within eight days after notice of this order, elect whether he will proceed at law in the suit brought by him against the defendant, or in this court upon his bill; and if he elects to proceed at law, or if he neglects to file such election within the said eight days, the bill in this cause shall thereupon stand dismissed with costs ; and, if he elects to proceed here, it is then further ordered that he proceed no further in the said suit at law without leave of this court. Order to Pay. Money into Court. On reading and filing bill and answer in this cause, and due proof of service of this motion; and on motiop of 128 INTERLOCUTORY PROCEEDINGS. the plaintiff by his counsel, and after hearing the de- fendant by his counsel (or, and no one appearing to oppose the same), it is ordered that the defendant, C. D., do, on or before the day of next, pay into the hands of the register of this court, in trust, in this cause, the sum of $ , admitted by the answer of the said defend- ant to be due from him ; and that when such money is paid in, it be deposited by said register, in trust, in the bank of {or invested in bond and mortgage, in trust) to the credit of this cause; there to remain until the further order of this court. Order of Reference to a Master, to appoint a Receiver. On reading and filing affidavits, and the pleadings in this cause, and on motion of J.E., solicitor for the plaintiff, the defendant being heai'd by counsel in opposition thereto, ordered that it be referred to a master of this court to appoint a receiver of the rents and profits of the estate, (or of the estate, property, and effects) oiXh&Aefend&nt, CD., mentioned in the pleadings in this cause, with the usual powers, and upon the usual directions ; and that said mas- ter take from such receiver the necessary and usual se- curity for the performance of his trust, and file the same in the proper office ; and that upon the filing of the re- port of the master, and of such security, such receiver be invested with all his rights and powers as receiver, ac- cording to the rules and practice of this court. OF EEPIilCATION AND REJOINDER. 129 CHAPTER VI. OF REPLICATION AND REJOINDER. If the answer of the defendant controverts the facts charged in the plaintiff's bill, or sets forth new facts and circumstances, which the plaintiff is not disposed to admit (both of which is usually the case), he may maintain the truth of his own allegations, and deny the validity of those alleged by the other party, in a replication to the defendant's answer. This replication, according to the modern practice, consists of a general averment only, of the truth and sufficiency of the plaintiff's bill, and as gen- eral a denial of the same properties in the answer of the defendant; but, formerly, if the defendant's answer stated new facts, in opposition to those alleged in the bill, the plaintiff" was accustomed to reply by a special statement of other facts, not before charged. This produced a re- joinder by the defendant, asserting the truth and suffi- ciency of his answer, and alleging the contrary of the plaintiffs replication. A sur-rejoinder frequently followed the rejoinder, and a rebutter the sur-rejoinder, and. so on as long as new facts were set forth by one party and denied by the other. But the expense, inconvenience and delay attending these multifarous pleadings on each side, gave rise to an alteration of the practice. Although we have retained the form of a special replication, it has gone completely out of use, and indeed is prohibited by the rules of the Supreme Court of the United States. The plaintiff", may, however, obtain the benefit which he could have formerly derived from a special replication, by amendment of his bill. 9 130 OP REPLICATION AND REJOINDER. A General JRepUcatioji to a Defendant's Answer. r Between James WiTlis, by his father and In Chancery. < next friend, plaintiff, and Edward Willis, ( and William Willis, defendants. The replication of James W^illis, complainant, to the answer of Edward Willis and William Willis, defend- ants. This repliant, saving and reserving to himself all and all manner of advantage of exception which may be had and taken to the manifold errors, uncertainties, and insufficien- cies of the answer of the said defendants, for replication thereunto, saith, that he doth and will aver, maintain, and prove his said bill to be true, certain, and sufficient in the law, to be answered unto by the said defendants, and that the answer of the said defendants is very uncertain, eva- sive, and insufficient in the law to be replied unto by this repliant; without that, that any other matter or thing in the said answer contained materially or effectually in the law, to be replied unto, and not herein and hereby well and sufficiently replied unto, confessed, or avoided, trav- ersed, or denied, is true ; all which matters and things this repliant is ready to aver, maintain, and prove, as this honorable court shall direct, and humbly prays as in and by his said bill he hath already prayed. The Special Replication of J. W., Complainant, to the An- sicer of D. W. and W. W., Defendants. This repliant, saving and reserving, etc., for replication unto the answer of the said defendant, saith, that he, this repliant, doth, in and by this his replication, waive his de- mands of tithes of Easter offerings, demanded by his bill, and mentioned in the said defendant's said answer, and does in no wise insist thereupon, or require or intend any examination of witnesses in this cause, concerning or re- specting the same, and only insists upon his other demands. OF REPLICATION AND REJOINDER. 131 made in and by his said bill ; and that he doth and will aver, maintain, and prove his said bill, as to all the de- mands therein contained (except only as to those herein- before excepted and waived), to be just and true, certain and suflBcient in the law to be answered unto by the said defendant, and that the answer of the said defendant is untrue, uncertain, and insufficient in the law to be re- plied unto by this repliant, for divei's manifest errors and uncertainties therein contained, without that, etc.; all which matters and things this repliant is ready to aver, maintain, and prove, as this honorable court shall direct, and prays in and by his said bill, as he has already prayed, except as hereinbefore excepted. The plaintiff, having filed his replication, proceeds to serve the defendant with a subpena to rejoin, and to join in commission for the examination of witnesses. The form of this subpena is precisely tlie same as the common subpena ad respondendum, and returnable and served in the same manner. The subpena to rejoin answers to a similar citation in the civil law, which closed the litis contestatio, and the reason given by the civilians for its introduction was probably that which occasioned its adoption by our courts of equity, namely, that unless the defendant was cited before the examination of witnesses, the recepiio testiuyn would be a mere nullity, as the de- fendant would have no opportunity of inquiring into their credibility, or of cross-examining them. But it is not necessary with them, nor is it with us, that the defend- ant should appear to the citation, because, as it is a pro- cess entirely in his favor, he is left to avail himself of it or not, at his discretion. The cause is therefore completely at issue upon the mere service of the subpena, and no rejoinder is, in general, actually filed. In the United States, generally, if not universally, the pleadings ter- minate with the replication, and the cause is deemed fully at issue. 132 OP REPLICATION AND REJOINDER. The rejoinder (when used) asserts the truth and suffi- ciency of the defendant's answer, and avers the contrary of the plaintiff's replication in the following form: A Jiejoinder of a Defendant to the Plaintiff's Replication. The rejoinder of Edward Willis and "William Willis, defendants, to the replication of James Willis, an infant complainant. These defendants, saving and reserving to themselves, severally, all and all manner of henefit and advantage of exception which may be had or taken to the many uncer- tainties, imperfections, and insufficiencies of and in the replication of the said complainant, for rejoinder to the same, do severally say (in all and every matter and thing as in and by their said answer they have said) they will severally aver, justify, maintain, and prove their said an- swer in all and every matter, clause, sentence, article, and allegation therein contained, to be j ust and true, and certain, and sufficient in the law to be replied unto, in such sort, manner and form as in their said answer the same are pet forth and declared, and that the said repli- cation is very untrue, uncertain, and insufficient in the law to be rejoined unto by these defendants, without that, that any other matter or thing in the said replica- tion contained, material or effectual in the law to be re- joined unto by these defendants, and not herein and hereby well and sufficiently rejoined unto, confessed or avoided, traversed or denied, is true ; all which matters and things these defendants are ready to aver and prove, as this honorable court shall award and direct ; and these defendants pray, as in and by their said answer they have already severally prayed. The cause being now completely at issue, the parties proceed to prove the several allegations contained in their respective pleadings by the examination of wit- nesses. INTERLOCXJTORT BILLS. 133 CHAPTER VII. INTERLOCUTORY BILLS. Several kinds of bills, bj' which a suit in equity may be commenced, have been noticed in a previous page; but, besides these original bills by vrhich a suit is insti- tuted, there are others of an auxiliary nature, by which it may be added to, continued, or revived, as circum- stances render necessary. These, arising between the original institution and final determination of a suit, may not improperly be denominated interlocutory bills; and, as they can in no wise become requisite till after issue joined between the parties, prior to which (agreeably to the practice of civil law) any defect in the suit may be remedied by amendment, this seems to be the most proper place for adverting to them. They are : 1. A Supplemental Bill, Which is used for the purpose of supplying some irregu- larity discovered in the formation of the original bill, or in some of the proceedings upon it ; or some defect in the suit, arising from events happening after an issue had been reached in the proceedings, and by which persons not parties to the suit have acquired an interest in it. But the court will not ordinarily permit a supplemental bill to be filed where the defect can be supplied by amendment. This bill, after reciting the original bill and the proceedings which have been had upon it, the circumstances which render the supplemental matter ne- cessary, and the respect in which the state of the cause and the parties is varied by such circumstances, proceeds : To the end, therefore, that the said E. W. and W". W. 134 INTEKLOCUTOET BILLS. may severally answer all and every the matters and things herein before charged by way of supplement, and that they may discover and set forth, etc. And that your orator may be relieved in the premises as the nature and circumstances of his case may require, may it please your honor to grant subpena, etc. If the suit becomes abated by any event subsequent to its institution, it may be renovated by 2. Bill of Revivor. And if the event occasioning the abatement does not affect the interest transmitted in such a manner as to make it subject to litigation in a court of equity, the suit may be continued by bill of revivor merely. A familiar illustration occurs in the case of the death of a party whose interest in the subject-matter of the suit is not thereby determined, but transmitted to his personal or real representative, according to the nature of the prop- erty upon which the question arises; or upon the mar- riage of a female plaintiff. The death of one of the par- ties to a suit, however, does not, in all cases, necessarily produce such an abatement as to suspend all further pro- ceedings, for the persons remaining before the court may have such an interest in the matter in litigation as to be competent to call upon it for a decree. Thus, where sev- eral creditors sue on their own behalf, and that of other creditors, the death of one will not abate the proceed- ings. Where there are several plaintiffs or several de- fendants, all having an interest which survives, the death of any one of them makes an abatement only as to him- self, and the suit is continued as to the rest who are liv- ing ; unless, indeed, anything is required to be done by or against the interest of the person who is dead. rSTEELOCUTOUY BILLS. 135 Form of Bill of Revivor against Heir-at-Law of Deceased Mortgagor. In Chancery. Before, etc. To, etc. Complaining, shows nnto your honor, your orator, J. B., of the city of !N"ew York, merchant, that on or about the day of last past, your orator filed his bill in this honorable court against L. M., since deceased, and others, stating therein the due execution and ac- knowledgments by the said L. M. of a certain inden- ture of mortgage, dated the day of in the year 1829, for securing the payment to your orator of the sum of 13,000, lawful money of the United States, according to the condition of a certain bond or obligation therein mentioned, and which indenture of mortgage comprised a house and lot of ground, lying in the ward of the city of New York ; and further stating that the said L. M. had made default in the payment of the said sum of money, according to the condition of such bond, and thereupon praying (set out the prayer of the bill) as by such bill on file in this court will on reference appear. And your orator further shows that the said L. M., being duly served with pi'ocess, appeared to the said original bill, and put in his answer thereto ; and the said cause being at issue, the same came on to be heard on the , when the court was pleased to order and de- cree, etc. And your orator further shows unto your honor that some proceedings have been had before the master to whom this cause stands referred; but no report hath yet been made thereon. And, further, that on or about the ' ■, the said late defendant, L. M., departed this life, leaving B. D., of (the defendant hereinafter named), his heir-at-law, and without having devised, or in any manner disposed of, the equity of redemption of and in the said mortgaged premises. 136 INTERLOCUTORY BILLS. And your orator further shows uuto your honor, that the said suit having become abated by the death of the said late defendant, your orator is, as he has been advised, entitled to have the said suit revived against the said B. D., as the heir at law of the said L. M., and to have the said decree and other proceedings had thereon prosecuted and carried into full effect against the said B. D., in like manner as they could or might have had if the said late defendant had been still living. To the end, therefore, that the said B. D. may show cause, if he can, why the said suit and proceedings therein should not stand and be revived against him as such heir at law of the said late defendant as aforesaid, and be in the same plight and condition as the same were in at the time of the abatement thereof; and that the said suit and proceed- ings had therein, may stand and be revived accordingly ; may it please your honor to grant unto your orator the writ of subpena to revive the same, issuing out of and under the seal of this honorable court, to be directed to the said B. D., thereby commanding him, by a certain day, and under a certain penalty, to be therein expressed, personally to be and appear before your honor, in this honorable court, and then and there to show cause, if he can, why the said suit, and the proceedings therein had, should not stand and be revived against him, and be in the same plight and condition as the same were at the abatement thereof; and further, to stand to and abide such order and decree in the premises as to your honor may seem meet. And your orator will ever pray, etc. If, however, the event which occasions the abatement be accompanied with other circumstances necessary to be stated to the court, in order to obtain a complete decree, such circumstances must be stated by way of supple- mental bill, added to the bill of revivor. But if the abatement of the suit happen by an event INTEKLOCUTORT BILLS. 137 which may occasion the interest transmitted to be con- tested, the benefit of the suit can not be obtained by a bill of revivor, eo nomine, but must be sought by 3. An Original Bill, in the nature of a Bill of Revivor. It is said to be original, merely for vpant of a privity of title between the parties to the former, and those to the latter suit, and when the validity of the alleged trans- mission of interest is established, the suit is in the same situation as it would have been by bill of revivor merely, in case the establishment of such interest had been un- necessary. This bill, like the bill of revivor, states the original bill and proceedings, the abatement, and the manner in which the interest of the party deceased has been transmitted ; and it must likewise charge the validity of such transmission, and state the facts which have accrued under it. If, again, the interest of a party to the suit be, by any event, wholly determined, and the property become vested in others not claiming under him, the benefit of the original suit can not be obtained by either of the last mentioned bills, but by 4. An Original Bill, in the nature of a Supplemental Bill. This bill must state the original bill, and the proceed- ings had under it ; the event which caused the abatement of the suit ; and the manner in which the property in dispute has become vested in the persons entitled ; show the equitable grounds upon which the parties are entitled to the benefit of the. former suit; and pray a decree of the court adapted to the nature of the plaintiff''s case. A bill for this purpose seems to difler from an original bill in the nature of a bill of revivor, in this, that upon an original bill, in the nature of a bill of revivor, the benefit of the former proceeding is absolutely obtained; so that the pleadings in the first cause, as also the de- 138 INTEELOCUTORT BILLS. positions of witnesses (if any have been taken), may be used in the same manner as if they had been Sled or taken in the second cause; and if any decree has been made in the first cause, the same decree will be made in the second cause. But in the case of an original bill, in the nature of a supplemental bill, a new defense may be made ; the pleadings and depositions can not be used to the same extent as if filed or taken in the same cause ; and the decree, if any has been obtained, is no otherwise of advantage than as it may be an inducement to the court to make a similar decree. Off EXAMINATION OF 'WITNESSES. 139 CHAPTEE VIII. OP EXAMINATION OF WITNESSES.' In the several proceedings which we have hitherto had occasion to enumerate, as applicable to our courts of equity, the reader has perceived a great resemblance in substance, though generally a difference inform, to those used in our courts of common law. But in the examina- tion of witnesses, a material difference prevails, both in form and effect. The examinations in courts of law be- ing ore tenus, in the presence of the judge and the court; and impromptu at the time of trial ; whilst that in the courts of equity, agreeably to the civil law, is conducted in private, and upon interrogatories or questions -in writ- ing previously framed for the purpose. If the witnesses reside within twenty miles of London, this examination is taken before a public officer appointed by the court for that particular purpose; but if they re- side beyond that distance, a commission or dedimus potes- tatem is granted to four commissioners (two nominated by each party) authorizing them to take the depositions of the several witnesses at the respective places of their residence. ^The English practice in relation to the examination of witnesses and the preparations of causes for hearing has been greatly modified in all of the United States. The student must look to the local statutes. 140 OF EXAMINATION OP WITNESSES. A Commission to examine Witnesses in Chancery. George the Third, by the grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, and so forth, to Samuel Johnson, Mayat Edwards, "William Mason, and Peter Warne, greeting : Know ye, that we, in confidence of your prudence and fidelity, have appointed you, and by these presents do give unto you, any three or two of you, full power and authority diligently to examine all witnesses whatsoever upon certain interrogatories to be exhibited to you, as well on the part of James Willis, complainant, as on the part of Edward "Willis and "William "Willis, defendants, or either of them ; and therefore we command you, any three or two of you, that at certain days and places, to be appointed by you for that purpose, you do cause the said witnesses to come before you, and then and there examine each of them apart, upon the said interrogato- ries, on their respective corporal oaths, first taken before you, any three or two of you, upon the holy evangelists; and that you do take such their examinations, and reduce them into writing on parchment ; and when you shall have so taken them, you are to send the same to us in our chancery, without delay, wheresoever it shall then be, closed up and under your seals, or the seals of three or two of you, distinctly and plainly set forth, together with the said interrogatories, and this writ : And we further command jou and every of you, that before you act in, or be present at the swearing or examining any witness or witnesses, you do severally take the oath first specified in the schedule hereunto annexed ; and we do give you, any three, two, or one of you, full power and authority, jointly or severally, to administer such oath to the rest or any other of you, upon the holy evangelists ; and wo further command that all and every the clerk or clerks employed in taking, writing, transcribing, or ingrossing OP EXAMINATION OF WITNESSES. 141 the depositiou or depositions of witnesses to be examined by virtue of these presents, shall, before he or they be permitted to act as clerk or clerks as aforesaid, or be presept at such examination, severally take the oath last specified in the said schedule annexed ; and we also give you, or any of you, full power and authority, jointly and severally, to administer such oath to such clerk or clerks, upon the holy evangelists. Witness ourself at Westminster, the day of , in the 36th year of our reign. Arden, Winter. Indorsed, " By order of court." Label. — To Samuel Johnson, Mayat Edwards, William Mason, and Peter Warne, Gentlemen, any three or two of them to examine witnesses, as well on the part of James Willis, plaintifl", as on the part of Edward Willis and William Willis, defendants, returnable without de- lay, on fourteen days' notice to the defendants. Arden, Winter. Proper notice having been given to the defendants of the time and place of executing the commission, inter- rogatories or questions, previously framed and settled, are produced on each side, and separately read to the re- spective witnesses, and their responses or depositions taken down in writing by the commissioners. Interrog- atories should be concise and to the point, not leading or directing. The following is the usual form : Interrogatories exhibited in Equity. Interrogatories to be administered to witnesses to be produced, sworn, and examined in a certain cause de- pending in the high court of chancery, wherein James Willis, by John Willis, his father and next friend, is com- plainant, and Edward Willis and William Willis, exec- 142 OF EXAMINATION OF WITNESSES. utors of the last will and testament of Thomas Atkins, deceased, are defendants. On the part and behalf of the said complainant ; that is to say — First interrogatory. — Do you know the parties, com- plainants and defendants, in the title of these interroga- tories named, or any and which of them, and how long, etc., etc. ? Declare the truth and vourkuowledge therein. Second interrogatory. — Did or did not the said Thomas Atkins, in the foregoing interrogatories named, ever, and when and where, in your sight or presence, or in the presence of any and what other person or persons, to your knowledge, sign, seal, publish, or declare, his last will and testament, in writing, or any other and what writing, as for or purporting to be, his last will, etc., etc. ? De- clare, etc. Third interrogatory. — Do you know of any applica- tion or applications which have been made by or on the behalf of the above named complainant, to the defend- ants above named, or either and which of them, for the payment of the legacy of £800, in the pleadings in this cause mentioned to have been bequeathed to or for the Tjenefit of the said complainant, etc. If yea, set forth when, or about what time or times respectively, and by whom, by name, and to whom, and where such applica- tion or applications was or were so made, and whether the same was or were, in any and what manner, com- plied with or assented to, or refused and rejected, and by whom, and for any and what reasons ? Declare, etc. Lastly. — Do you know of any other matter or thing, or have you heard, or can you sny, anything touching the matters in question in this cause, that may tend to the benefit and advantage of the complainant in this cause, besides what you have been interrogated unto ? If yea, declare the same fully, and at large, as if you had been particularly interrogated thereto. A. Manning. OF EXAMINATION OF WIXNESSES. 143 After the oatlis have been duly administered to the commissioners, their clerks, and the respective witnesses, the depositions are taken and transcribed in the follow- ing form : Depositions in Equity by Commission. Depositions of witnesses, produced, sworn, and exam- ined, on the day of , in the thirty-sixth year of his present Majesty, King George the Third, and in the year of our Lord 1795, at the house of W. Brown, known by the sign of the Bush, situated in the parish of Kelsal, in the county of ]S"ottingham, by virtue of a commission issuing out of his Majesty's high court of chancery, to us, Samuel Johnson, William Mason, and others, directed, for the examination of witnesses in a cause therein depending, between James Willis, by John Willis, his father and next friend, plaintiff, and Edward Willis and William Willis, defendants, on the part and behalf of the said complainant, we, the acting commis- sioners, under the said commission, and also the respect- ive clerks, by us employed, in taking, writing, transcrib- ing, and engrossing, the said depositions, having first duly taken the oaths annexed to the said commission, according to the tenor and eflect thereof, and as thereby required. James Henry ISTevil, of Pelligate, in the county of Northampton, Esq., aged thirty years, or thereabouts, a witness produced, sworn, and examined, on the part and behalf of the said complainant, James Willis, deposeth and saith, as follows : To the first interrogatory. — This deponent saith, that he knows the said complainant, James Willis, and hath so known him for the space of three years, last past, or thereabouts, and doth also know, and is well acquainted with the said defendants, Edward Willis and William Willis, etc. To the second interrogatory .^-This deponent saith, 144 OF BXAMINATIOK OF WITNESSES. that he was present, and did see Thomas Atkins, in the pleadings in this cause mentioned, sign, seal, publish, and declare, as and for his last will and testament, a cer- tain writing, etc., etc. To the third interrogatory. — This deponent saith that in or about the month'of January last, he, this deponent, was, together with John Willis, the father of the said complainant, James Willis, at the house of, and in com- pany with, the said William Willis, and doth well re- member that the said John Willis did then and there ad- dress the said defendant, on the part and in behalf of the said complainant, and requested that the said William Willis, or his co-executor, the said Edward Willis, would pay or otherwise secure, for the benefit of the said'com- plainant, the said legacy of £800, etc., etc. And to the last interrogatory. — This deponent saith, he doth not know of any matter pr thing, etc., etc. James Henkt ISTevil, Samuel Johnson, William Mason. If the witness be examined, in town, before the ex- aminer, the form will necessarily vary. Depositions in Equity, before an Examiner. Witnesses examined in a cause depending and at issue in this honorable court, wherein James Willis, an infant, by John Willis, his father and next friend, is complain- ant ; and Edward Willis and William Willis are defend- ants, on the part and behalf of the said complainant, by Alexander Morgan, Esq., examiner in chancery. James Henry Nevil, of, etc., aged thirty years and up- ward, being produced as a witness, on the part and be- half of the complainant in this cause, was, on the day of , in the year of our Lprd 1795, shown in per- son, at the seat of Mr. Hill (who is the clerk in court of OP EXAMINATION OF WITNESSES. 145 the defendants, in the title hereof named), by Mr. Vaugu, one of the sworn clerks in n\j office, who then also left a note of the name, title, and place of abode of the de- ponent, at the seat aforesaid ; and afterward, on the same day and year, the said deponent, being sworn and ex- amined, deposeth and saith as follows : 1st. to the first interrogatories the said de- ponent saith, that, etc. (as before). A. Morgan, R. HiNDE. The depositions, being completed, are closely bound up, and (being secured from inspection by the signature and seals of the several commissioners) sent to the court, out of which the commission issued, by a messenger who makes oath " that the said depositions have not been opened or altered since they were delivered to his charge." They are then committed to the custody of the clerk, in court, who prepared the commission, if taken in the county, or detained by the examiner, if taken in town, till publication has passed ^ by rule or order of court. After which they may be inspected, or copies of them delivered, at the request of any of the parties. After publication has passed the parties regularly are to proceed to a hearing; but should the evidence on either side appear to be exceptionable, on account of the discredit or the incompetency of any of the witnesses, leave may be obtained on motion to object to the validity ' When the examination of witnesses on both sides is ended, either party serves the other with a rule or order of court, importing that the depositions will be made public, unless sufficient cause be shown against it, within a time therein expressed. If no cause is shown, the rule is made absolute. This is termed " passing publi- cation," and absolves the commissioners and examiner from their respective oaths of secrecy. 10 146 OF EXAMINATION OF WITNESSES. of their testimony/ The method of doing this is by ex- hibition of articles in the following form : Articles of Exception to the Credit of a Witness in Chan- cery. Articles exhibited by James Willis, complainant, by John Willis, his father and next friend, in a certain cause now depending and at issue in the high court of chancery, wherein the said James Willis, by his said father, is com- plainant, and Edward Willis and William Willis are de- fendants, to discredit the testimony of Henry James ISTevil, a witness examined before Alexander Morgan, Esq., one of the examiners of the said court (or, if the witnesses were examined by commissioners), " by virtue of a com- mission issued out of the said court, to Samuel Johnson and others, directed for the examination of witnesses in the said cause, upon certain interrogatories exhibited be- fore them for that purpose ; and which said witness was examined on the part and behalf of the said defendant. First. The said James Willis, by his said father and next friend, doth charge and allege that the said Henry James l^evil hath, since his examination in the said cause, acknowledged that he is to receive, and doth ex- pect a considerable reward or gratuity in money, from the said defendant, in case the said cause be determined in his, the said defendant's, favor ; and that he, the said Henry James !Nevil, is personally interested in the issue or determination of said cause. Secondly. That said James Willis doth, as aforesaid, charge and allege, that the said Henry James IsTevil is a ^ In strictness the proper time and manner of exhibiting objec- tions to the competency of witnesses is by interrogatories at the ex- amination in chief, before the commissioners or examiner ; but as their competency is seldom known until after the publication of their depositions, this indulgence is never refused, when grounded upon an affidavit substantiating its propriety. OP EXAMINATION OF WITNESSES. 147 person of bad morals, and of evil fame and character, and is generally esteemed and repnted so to be ; and that the said witness is a person who hath no regard to the sacredness of an oath, or belief in a future state, and one whose testimony is in no respect to be credited. H. Manning. These articles are filed in the office of the examiner, or of the six clerks of the court, accordingly as the original depositions were taken before him, or by commissioners, and interrogatories (by leave of the court) are framed upon them, and exhibited before the examiner in chan- cery, or by commission, and the depositions taken and published, as in other cases. Exceptions may also be taken to them. These matters being at length finally settled, the parties proceed to a hearing. 148 OF THE HEAKma OF CHAPTER IX. OF THE HEARING OF A CAUSE IN EQXnTY. The cause being now ripe for hearing, it may be set down at the instance of either party, and a subpena to hear judgment procured and served as in other cases. This subpena corresponds with the notion of the civil- ians, that no act of court should be made altera parte inaudita : and by the ancient rule .of the court, there was always a term between passing publication and hearing the cause, that the several suitors might have time to prepare themselves for attendance. See For. Rom. 134, 151. But now the rule in chancery is, that the plain- tiff shall have liberty to set down his cause for hearing on the next term after publication, and, on failure, it maj' be set down by the defendant on the term next following ; and if the plaintiff do not then appear, his bill will be dismissed for want of prosecution. The form of this subpena, in chancery, is the same as that we have already given, with a difference only in the label and indorsement, which express the purpose for which the party's attendance is required, as, Subpena to hear Judgment in Chancery. George the Third, etc.— To Edward Willis and Will- iam Willis, greeting : For certain causes offered before us in our chancery, we command, etc., that you personally be and appear before us in our said chancery, on the 8th day of Novem- ber next, wheresoever it shall then be, to answer, etc., (as in the subpena ad respondendum). Witness, etc. COURTENAT. Indorsed. — " By the court, to hear judgment, the 11th A CAUSE IN EQUITY. 149 day of November, at the suit of William "Willis, an infant." Label. — Edward Willis to appear in chancery, return- able the 8th day of JSTovember next, to hear judgment the 11th day of the same month, at the suit of James Willis, an infant. The subpena to hear judgment, by the practice of the court, is made returnable three judicial days before that in which the cause is appointed to be heard. These are called days of grace, and the reason assigned by Sir Will- iam Blackstone for their introduction is, "that our sturdy ancestors held it beneath the condition of freemen to appear or to do any other act at the precise time ap- pointed." The feudal law, therefore, (from whence is derived the quarto die post of our common law), as well as the canon and civil law, allowed three distinct days of citation before the defendant was adjudged contu- macious for not appearing. If, however-, the defendant be a body corporate, a writ of distringas, instead of the subpena, is to be served upon them, conformably to the practice in requiring their appearance to the bill. The parties appearing, by their counsel, on the third day after the return of the subpena, the allegations- of the plaintiff, and the defendant's answer, are briefly stated to the court, by the junior counsel on each side. The leading counsel of the plaintiff then enters more particularly into the nature, circumstances, and merits of his case, and informs the court of the points in issue between the parties. Such parts of the depositions and answer of the defendant as the plaintiff chooses to call for are then read for the purpose of receiving the re- marks and animadversions of his counsel. The defend- ant afterward proceeds in the same manner to make his defense, and the plaintiff's counsel are heard in reply; which ends the forensis litigatio ; and the court proceeds 150 OF THE HEARING OF to pronounce its decree, which is the final judgment or sentence of the court upon the rights of the several parties in the cause, and is minuted down by the register, from the mouth of the chancellor. But if the defendant neglect to appear by his counsel at the hearing, the (joun- sel for the plaintiff, on proving service of the subpena ad audiendum judicium, prays such decree as he deems his client entitled to ; ' which (not being opposed), is granted as of course, with this reservation only, that the defend- ant, within a given time, shall be at liberty to show cause against its being carried into execution. For this purpose the plaintiff procures a subpena to show cause, which, in chancery is as follows : A Subpena to show Cause, in Chancery. George the Third, etc. To Edward Willis, greeting : For certain causes offered before us, in our chaocery, we command and strictly enjoin you, that, laying all other matters aside, and notwithstanding any excuse, you personally be and appear before us, in our said chan- cery, on the day of next ; wheresoever it shall then be, then and there to show good and sufficient cause, in a certain matter in our said chancery, now in controversy between James Willis, an infant, complain- ant, and Edward Willis and William Willis, defendants, according to the true intent and meaning of a certain ^But if, on the other hand, the plaintiff, after setting down his cause for hearing, neglect to attend, the court can only order it to be struck out of the paper of causes to be set down afresh, unless the defendant has taken the precaution to make an affidavit of his having been served with a subpena to hear judgment, at the plain- tiff's suit; in which case thg bill will be dismissed with costs, " because a plaintiff may set down his cause, and yet, upon further consideration of the matter he may not think fit to serve the de- fendant with a subpena to hear judgment, in which case it must be heard ad requisiiionem defendentis, in order to entitle him to a dismiss- ion." For. Rom. 157. A CAUSE IN EQUITY. 151 order of our said court, made between, etc., in this cause, bearing date the day of last, and to do further, and receive, etc. (as in the subpena to appear and answer) witness, etc. Courtenay. Indorsed, " By the court." Label. — Edward "Willis, to appear in chancery, return- able the day of , to show cause against a decree dated the day of , at the suit of James Willis, an infant. Courtenay. This subpena is served in the same manner as those which have been formerly described ; but there is no rule limited in respect of the time of service, which may therefore be on any day before the return. If the defendant show no cause within the time specified with- in the order and subpena, or allowed by the indulgence of the court, he is presumed to submit to the requisi- tions of the decree, and the cause is at an end ; but if at the return of the subpena, he otters to the court suffi- cient reasons against the affirmance of the decree, the cause is restored, and a decree pronounced after a full discussion of the merits of the case. 152 OF A DECREE IN EQUITY. CHAPTER X. OP A DECREE m EQUITY. A DECREE is the sentence or judgment of the court pronounced after the hearing or submission of the cause. It may be interlocutory or final. The former is properly an order or decree pronounced for the purpose of ascer- taining matter of fact or law, preparatory to a final de- cree. It very seldom happens that the first decree can he final or conclude the cause. The most usual ground for not making a perfect decree in the first instance is the necessity which frequently exists to ascertain a disputed fact, by an issue at law, or to refer a cause to a master of the court, to make inquiries, or to take accounts, or to adjust other matters which must be disposed of before a final decision can be made of the subject-matter of the suit. In England, it is very common, where any difficult question of law is raised, for the chancellor to send a case in which it is presented to one of the common law courts for an opinion ; but this practice has never prevailed in the United States. The occasion and manner of refer- ring a cause to a master has been considered in a pre- vious chapter ; and it remains for us to explain the anom- alous proceeding called a feigned issue, which seems to have been borrowed from the sponsio judioialis of the Roman law. If the coui't, in consequence of the defects incident to all written testimony, is embarrassed in the solution of a question of fact, it may either order a reg- ular action at law, or may direct a master to frame an issue involving the question between the parties, and then require them to proceed at law, as for a wager ; the plaintiff in equity being ordinarily the plaintiff at law, OF A DECREE IN EQUITY. 153 and averring in his declaration that a wager has been laid on the truth of the statement in the issue, and the defendant admitting the fact. As this proceeding takes place for the purpose of informing the conscience of the court, it is not strictly bound down to the form and inci- dents of an ordinary trial. Sometimes it insists on more than the common law tribunal would have been satisfied with ; as on the issue devisavit vel non, where the exam- ination of all the three witnesses to the will is indispen- sable ; sometimes it is satisfied with less, and directs the examination of the parties themselves, and also the read- ing of the depositions which may have been previously taken. When the verdict is returned, it having been, obtained for the satisfaction of the conscience of the chancellor, he may, if he thinks proper, inquire into all which passed at the trial, and if he is not, under the cir- cumstances, convinced by the verdict, treat it as a nullity. A decree is final when it fully decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court. It is not final because it settles one or more ma- terial questions involved in a case, if others remain to be determined. So it may be final, although it contains a reference to a master, if it at the same time provides for all the contingencies which may arise upon his report, and leaves no necessity, upon its confirmation, for any further order of the court, to give to all parties the en- tire benefit of the decision. Of this nature is a decree directing land to be sold, and appointing a commissioner to perform the order and execute a conveyance; a decree ascertaining the amount due, directing a sale, and giving costs ; or any decretal order upon which an execution- may be taken out. There are, however, some decrees which, although final in their nature, require the confirmation of a further order of the court, before they can be acted upoa. Of this- 154 OF A DECREE IN EQUITY. nature are decrees in suits against infants, in which a day is given to the infant to show cause against it, after he attains twenty-one. This is because an infant is always under the protection of the court, and there may be neg- lect or collusion on the part of his guardian, through whom he answers. Such collusion or fraud, therefore, is the chief ground for reversing a decree after he is of age ; or he may show error, or make a new case not before in- sisted upon. He is not, however, under the necessity of waiting until he becomes of age, to seek redress, but may impeach the decree at any time before it is made absolute, by an original bill. To the same class belong decrees nisi, or by default, which, as we have seen, are incomplete until confirmed and made absolute by a subsequent order of the court. . They difter very little in point of form from ordinary de- crees, made upon hearing all parties. A decree of this nature is not considered as the judgment of the court, •but as the act of the party who obtain it, conceiving what the judgment of the court would be if the other party appeared. And it is taken at his peril, if not supported by the pleadings and proofs. Where, however, the bill is to be taken pro eonfesso, ■the proper 'course seems to be for the court itself to ex- amine the pleadings and pronounce the decree, and not permit the complainant (as in the case of default at the •hearing) to take such decree as he thinks will stand. The court being at length, by certificate of the judges, the verdict of a jury, or the report of a master, possessed of every information necessary to enable it to adjust and decide the rights of all parties, the cause is again brought to hearing, on the equitable matters reserved, and a def- inite decree rendered, according to equity and good con- ^ As we have noticed in a former page the accustomed form of proceeding by the parties at the hearing of a cause in equity, it may OP A DECREE IN EQUITY. 155 Form of Decrees. Decrees in general consist of three parts : 1. The date and title. 2. The recitals ; and, 3. The ordering part, to which may sometimes be added 4. The declaratory part, Tvliich when made use of, generally precedes the ordering part. The decree commences with the name of the court, and the place where it is held, the term at which it is pronounced, and the title of the cause. The practice in England, at one time, was to recite at length the plead- ings and evidence in the cause ; but this practice, in con- sequence of its expense and inconvenience, has been abolished, and the decree now merely recites the sub- stance of the pleadings and the facts on which the court founds its judgment. In the United States the decree usually contains a mere reference to the antecedent pleadings, without embodying them, or any special facts upon which it is rendered. After the recitals comes the ordering or mandatory part of the decree, containing the specific directions of the court upon the matter be- fore it, which it is obvious must depend upon the nature of the particular case which is its subject. Where the not be amiss to continue that deduction by subjoining here a short account of the manner in which the decree of the court is taken and recorded. This is done by the register of the court, who min- utes down in a book kept for that purpose a memorandum of the person or persons then presiding on the bench and present at the hearing ; the names of the counsel on both sides ; the evidence and documents read; the objections (if any) made to such evidence; the manner in which such objections were disposed of; and. lastly, the final sentence, judgment, or decree of the court, pronounced on the rights and interests of the several parties in the cause. And upon the minutes thus taken, the decree of the court, as afterward drawn up and recorded, is founded; and with which it must in sub- stance exactly correspond ; for no part of the decree but what is warranted by the minutes will be binding upon the parties. If, however, they are erroneous, they will be rectified on proper appli- cation to the court. 156 OF A DECREE IN EQUITY. suit seeks a declaration of the rights of the parties, the ordering part of the decree should be prefaced by such declaration. This is not, however, absolutely necessary, and its omission will not invalidate the decree. It may be observed in this place that when a decree is made by consent, it should be so stated. For the better understanding of the subject, the following forms of de- crees, in familiar cases, are inserted : General Form,} Monday, the 12th day of l^Tovember, 1795, in the thirty- sixth year of the reign of his Majesty, King George the Third ; between James Willis, an infant, by John Willis, his father and next friend, plaintifi", and Edward Willis, William Willis, and Samuel Dickenson, defend- ants. This cause coming on this day, to be heard and de- bated before the right honorable the Lord High Chan- cellor of Great Britain, in the presence of counsel learned on both sides, the substance of the plaintiff's bill ap- peared to be, that, etc. (here the plaintiff's bill is shortly recited). Therefore that the said defendant may pay, etc. (the prayer of the bill), and to be relieved, is the scope of the plaintiff's bill ; whereto the counsel for the ' The following form of a decree pro confesso, is taken from Wilcox's Ohio Forms. It is not the common practice in Ohio to express in a decree the facts upon which the decision of the chancellor is founded. A. B. 1 vs. y In Chancery. C. D. j This cause came on to be heard upon the bill, exhibits, and testi- mony, and the defendant still failing to appear and plead, answer or demur to said bill, the court, on consideration of the premises, do order and decree that the said bill be taken for confessed, and that the said C. D. shall within days (the specific decree, ac- cording to the nature of the case). OF A DECREE IN EQUITY. 157 defendant alleged that he by answer admits, etc. (the substance of the answer stated) ; whereupon, and upon debate of the matter, and hearing the will of the said Thomas Atkins, the answers of defendants, etc., and the proofs taken in this cause read, and what was alleged by the counsel on both sides, his lordship declared, that, etc. (the decree of the court). Thurlow, C. Winter, for the plaintiff. Decree by Default. {Title of cause) This cause, coming before the court, in the presence of counsel learned for the plaintiff, none ap- pearing for the defendant, although he has been duly served with a subpena, to hear judgment, as by affiant now read, appears : the substance of the plaintiff's bill appear- ing to be, etc.. Whereupon, and upon hearing the defend- ant's answer read and what was alleged, etc., this court doth think fit, and so order and decree that, etc. And this decree is to be binding upon the defendant, unless he, upon being served with a subpena for that purpose, shall, at the return thereof, show unto this court good cause to the contrary. But the said defendant, before he is to be admitted to show such cause, is to pay unto the plaintiff his costs of this day's default in appearance. To be taxed, etc. Decree for an Account. The court doth order and decree that this order be referred to E. H., one of the masters of this court, to take a mutual account of all dealings and transactions between the plaintiff' and the defendant, for the better caring of which account, the parties are to produce be- fore the said master, upon oath, all deeds or books, papers and writing in their custody or power, relating thereto, and are to be examined upon interrogatories, as the said master shall direct, who, in taking the said account, is to 158 OF A DECKEE IN EQUITY. make unto the parties all just allowances, and to report to the court what upon the balance of said account shall appear to be due from either party to the other. And the court doth reserve the consideration of the costs of this suit, and of all further directions, until after the master shall have made his report, when either side is to be at liberty to apply to the court, as occasion may require. Decree for a Specific Performance. (After the usual introduction, proceed). And it ap- pearing to the court that a good title can be made by the complainant to the premises described in the agree- ment between the parties in this suit, and referred to in the pleadings therein, and it appearing, also, that the said agreement ought to be carried into execution ac- cording to the true intent and meaning of the parties thereto, the court doth order and decree that the said agreement, which has been duly proven to have been made and entered into between the complainant and de- fendant in this suit, be specifically performed. And the court doth further order and decree that the said com- plainant, G. W., execute and deliver the defendant, H. J., a good and sufficient conveyance in fee of the prem- ises which formed the subject of contract between them, and which are particularly described in their agreement filed among the papers in this cause; and the form of such conveyance is to be settled by E. H., one of the masters of the court, if the parties differ about the same. And the court doth further order and decree that the said defendant, H. J., upon the tender or delivery to him of such conveyance, do pay unto the complainant, G. W., the sum of % , the balance of the purchase-money of such premises, reported by tbe master to be still due, with interest thereon at the rate of six per cent, from the date of said report. And the court doth not think fit to give any costs on either side. OF A DECREE IN EQUITY. 159 Decree in Creditor's Suit. This court doth order and decree that it be referred to E. H., one, etc., to take an account of what is due to the plaintiffs and all the other creditors of James Robinson, deceased, the intestate in the pleadings mentioned, and of his funeral expenses and such other claims and charges as by law are entitled to a preference in the distribution of the assets of said intestate, and to compute interest on such of the debts as carry interest; and the said master is to cause an advertisement to be published in such of the public papers as he may think fit of the town of , for the creditors of the said intestate to come in before him at a place in such advertisement to be named and prove their debts, and he is to fix a peremptory day for that purpose, and in default of their coming in to prove their debts by the time so appointed, they are to be ex- cluded from the benefit of this decree ; but the persons so coming in to prove their debts, not parties to this suit, are, before they are to be admitted as creditors, to con- tribute to the plaintiff's their portion of the expenses of this suit to be settled by the master. And it is ordered that the master do take an account of the personal estate of the said intestate, come to the hands of the said de- fendant, his administrator, or to the hands of any other person by his order or for his use. And it is ordered that the said intestate's personal estate be applied in pay- ment of his debts and funeral expenses, in due course of administration. And for the better taking of the said accounts, etc. (as ). And this court doth reserve the consideration of all further directions, and the costs of this suit until, etc. (as .) Decree of Interpleader. (Usual introduction). This court doth order that the parties do interplead ; and for that purpose, the defend- 160 OF A DECREE IN EQUITY. ants, T. W. and H. "W., are ordered to proceed in the ac- tion of trover, which they have brought against the plaintifEs, with liberty for the defendants, J. H. and S. M., to defend such action. And this court doth reserve the consideration of the costs of this suit and all further directions until after the trial of said action. And any of the parties are to be at liberty to apply, etc. Decree of Sale, on Foreclosure of Mortgage. This cause haviug been this day brought in to be heard upon the. bill of complaint filed therein, taken as con- fessed by , and upon the report of , one of the masters of this court, which report bears date on the day of , and was made in pursuance of an order of this court, heretofore made in this cause, re- ferring it to him to compute the amount due to the complainant on the bond and mortgage mentioned and set forth in said bill of complaint. On reading and filing said report, from which it appears that there was due to the said complainant at the date of the report, for the said principal and interest, the sum of , and on reading and filing the , showing the re- gularity of the proceedings to take the bill in this cause as confessed, and on motion of , of counsel f»r the complainant, it is ordered, adjudged and decreed, and this court by virtue of the authority therein vested doth order, adjudge and decree that the said report and all things therein contained do stand ratified and con- firmed. And it is further ordered, adjudged and decreed that all and singular the said mortgaged premises men- tioned in the bill of complaint in this cause and herein- after described, or so much thereof as may be sufficient to raise the amount due to the complainant for the principal, interest and costs in this case, and which may be sold separately without material injury to the parties interested, be sold at public auction by or under the OF A DECREE IN EQUITY. 161 direction of one of the masters of this court ; that the said sale be made in the county where tlie said mortgaged premises or the greater part thereof are situated ; that the master give public notice of the time and place of such sale, according to the course and practice of this court ; and that the complainant or any of the parties in this cause may become the purchaser ; that the master execute a deed to the purchaser of the mortgaged pre- mises on the said sale; and that the said master pay to the complainant or solicitor, out of the proceeds of the said sale, costs in this suit to be taxed, and also the amount so reported due as aforesaid, together with legal interest thereon from date of the said report, or so much as the purchase money of the mortgaged premises will pay of the same; and that the master take his receipt for the amount so paid, and file the same with his report; and that he bring the surplus moneys arising from the said sale, if any there be, into court, witLout delay, to abide the further order of the same. And it is further ordered and adjudged and decreed, that the defendant, and all persons claiming, or to claim, from or under be forever barred and foreclosed, of and from all equity of redemption, and claim of, in, and to, the said mort- gaged premises, and every part and parcel thereof. And' it is further ordered and decreed, that the purchaser or purchasers of the said premises, at such sale be let intO' the possession of the said premises, or any part thereof; and any person who, since the commencement of this suit, has come in possession under them, or either of them,, deliver possession thereof to such purchaser or pu rchasers, on production of the master's deed for said premises, and, a certified copy of the order confirming the report of the sale, after such order had become absolute.^ ^The above form is taken from 3 HofiOnan's Chancery Practice,- 244. 11 162 OF A DECREE IN EQUITY. The decree being drawn up and approved, and signed in chancery by the chancellor, it is engrossed on rolls of parchment and deposited amongst the records of the court as a perpetual evidence of the proceedings. If, however, either party thinks himself aggrieved by the decree; he may, before its enrollment, petition the court for a re-hearing. Six months are allowed to the party gaining the cause to enroll the decree ; if he delay it till after that time, he must apply to the court to enroll it nunc pro tunc, which is granted of course.^ ^The enrollment of decrees is now very rare in England; and seems to be in all cases unnecessary. In the United States all decrees in equity, as well as judgment at law, are matters of record, and are deemed to be enrolled, as of the term of the court at which they are declared, whether they are so in fact or not. OF EE-HEARING A CAUSE IN EQUITY. 163 CHAPTER XI. OF RE-HEARING A CAUSE IN EQUITY.^ The re-hearing a cause in equity can only be obtained while the decree is in transitu and incomplete ; for after it has received the signature of the chancellor it can only be revised by supplemental bill. The method of obtain- ing a re-hearing is by entering a caveat with the proper officer, against the enrollment of the decree, and present- ing a petition to the court requesting the indulgence of such re-hearing. This caveat proceeds upon the principle of preventing the inconvenience which has frequently been found to result from the too speedy signing of the decree ; and it suspends the signature one lunar month from the time that it is presented to the judge for enroll- ment. The petition must state particularly the objections which are conceived to lie against the decree, that the court may be competent to decide upon the propriety of the application, and if the whole decree is objected to, the case of the petitioners and the decretal part of the order are shortly set forth ; and an intimation is given of the decree which the petitioners are advised ought to The orders of court require that a petition for re-hearing should be signed by two barristers, as a security that the application is not made for the purpose of delay. ^ It would have been impracticable in a treatise of this nature to give an account of the practice in the diflferent courts of the United States. It may be well to warn the student, that the English prac- tice has been modified in this country, by local rules and statutes, and that the text can only be appealed to, as furnishing a general outline of the course of proceeding. 164 OF EE-HEAEIlir& Form of a Petition for Ee-Hearing. To the Hight Honorable the Lord High Chancellor of Great Britain. In a cause wherein James "Willis, by John Willis his father and next friend, is complainant, and Edward Willis and William Willis, are defendants. The humble petition of the defendant showeth,that your petitioners find themselves much aggrieved by a decretal order made in this cause by your lordship, the day of , whereby your petitioner is ordered and directed to pay unto John Willis for the benefit of James Willis, an infant, the sum of £800, etc., such sum having been long since paid, and proof thereof made, as your pe- titioners conceive and are advised. Your petitioners, therefore, humbly pray that your lordship will be pleased to vouchafe a re-hearing in tbis cause, before your lordship ; they submitting to pay what costs the court shall award in case their complaint be found groundless ; and your petitioners will pray, etc. Gr. Maddocks. A. Stainsbt. This petition is left with the chancellor or the master of the rolls, who seldom refuses to subscribe his fiat for a re-hearing. Upon the re-hearing, all the evidence taken in the case, whether produced before or not, is now permitted to be read ; for it is the decree of the same court which now sits only to hear reasons why it should not be enrolled and perfected ; at which time, all omis- sions of either evidence or argument conductive to their information may be supplied. The form of the decree upon a re-hearing differs from the first decree only by a recital of such other proceedings as have been since had in the cause, thus — Whereas, by an order or decree of the right honorable, A CAUSE IN EQUITY. 165 the lord chancellor, made on the day of , it was ordered and (recitingthefirst decree) With which order the defendant being dissatisfied, petitioned his lordship for a re-hearing of the said cause, and to have the order recti- fied in several particulars ; and thereupon, by an order bearing date, etc., it was ordered that the said cause should be re-heard the day of , upon the de- fendant's depositing £ with the register ; and the defendant deposited the said sum of £ , and the cause coming on to be heard in the presence of counsel, etc., the counsel for the defendant insisted that, etc. (here is set forth the substance of the defendants' arguments as recited in the order of re-hearing), whereas, the counsel for the plaintiff insisted that, etc. (the substance of the argument for the plaintiflt';) whereupon, this court did declare and decree, that, etc. (as in the decree upon re- hearing). Thuelow, G. WiNTEK, for the plaintiff". l^To further obstacles can now be opposed to the enroll- ment of the decree, which is then completely perfected, and is deposited with the records of the court, there to remain in perpetuam rei memoriam. 166 OF THE EXECUTION OF DEOEBES. CHAPTER XII. OF THE EXECUTION OF DECEEBS. The decree being now perfected, a mandate of the court is awarded to enjoin its performance. It is a general principle, that the court of chancery has power to issue all process necessary to carry its decrees into effectual ex- ecution. When the decree is in personam, i. e., directed against the person of the defendant, as for the payment of money, the process is a writ of execution, and upon its failure, a writ of sequestration.^ But if the decree is ' The ancient method of compelling the observance of a, decree, was by spending the whole process of the court, by attachment, proclamation, commission of rebellion, and sergeant-at-arms. But in the time of Chancellor Elesmere, a defendant having been taken upon one of the processes, and still retaining a sum of money which was decreed to the plaintiff, his lordship ordered a seques- tration. About the latter end of the reign of Queen Anne, they began to shorten the process for compelling the execution of the decree ; for, by beginning with the attachment, and proceeding to the commission of rebellion, a twelve-month elapsed before the plain- tiff could receive any benefit from the decree, they, therefore, adopted the method of serving the defendant with a copy of the decree, and, upon his neglecting to obey it, he was ordered to be committed; and the practice was then immediately to commit him to the Fleet ; and upon the return of non est inventus, by the warden of the Fleet, the. court ordered a sequestration. But this being complained of by the sergeant^at-arms, as an infringement upon his accustomed privileges, an order was made in the seventh year of George I., that there should be no sequestration, but upon the re- turn of non est inventus by that officer. Since which period the practice has been, either to issue successively the several processes of the court, or, upon service of the decree, to obtain an order that the defendant should be committed for disobedience ; and upon that order move for a sergeant-at^rms, and a sequestration upon OP THE EXECUTION OF DECREES. 167 in rem, i. e., against the lands of the defendant, it is usual after service of the writ of execution and attachment, to award an injunction to give the plaintiff possession. Where the decree directs deeds or other instruments to be executed by a party to the suit, the ordinary process of contempt must be employed to enforce their execu- tion. Form of a Writ of Execution of a Decree in Equity. George the Third, etc., to Edward Willis and William Willis, greeting : Whereas, by certain final judgment or decree, lately made before us in our court of chancery, in a certain cause there depending, wherein James Willis, an infant, by John Willis, his father and next friend, is complain- ant, and you, the said Edward Willis and William Willis, defendants : It is ordered and decreed, that, etc. (the de- cretal part of the order), as by the said decree duly en- rolled, and remaining as of record, in our said court of chancery, doth and may fully appear: Therefore, we strictly enjoin and command you, the said Edward Willis and William Willis, that you do, sev- erally, pay, perform, fulfill, and execute all and every the moneys, matters, and things specified and contained in the said final judgment or decree, in all things so far as the same any way relates to or concerns you respect- his return of non est invemius. This mode of shortening the process is justified, in the chief baron's opinion, by the ancient practiceof immediately committing the defendant on disobedience to the order of the court, after having entered his appearance with the register; " for if a man can be committed for non-performance of an interlocutory order, when he has recorded his appearance, and departs in spite of the court, he certainly may be ordered to stand committed, after a decree pronounced for the appearance of the de- fendant is recorded at the hearing; or if the decree be pronounced in his absence, it is only conditional, and he is served with a copy of that decree, and acquiesces in it, before it can be absolute." 168 OP THE EXECUTION OF DECREES. ively, according to the true meaning and import of the said decree, and of these presents ; and hereof fail not at your peril. Witness onrself at Westminster, the day of , and in the 36th year of our reign. COURTENAY. Form of a Writ of Injunction to Deliver Possession of Land. George the Third, etc., to Edward Willis, William Willis, and all other person or persons whatsoever, who are in possession of, or have, or claim, any right, title or interest whatsoever, of, in, or to, all or any part of the messuages, lands, tenements, or premises in question, greeting : Whereas, it hath been represented to us in our court of chancery, in a cause wherein is plaintiff, and you the said Edward Willis and William Willis are defend- ants, that, by the decree made in this cause, it was or- dered that you, the said defendants, should deliver pos- session of the premises in question, and all deeds and writings in your custody or power relating thereto, to the said complainant ; that you, the said defendants, who are in possession of the messuages and lands in question were served with a writ of execution of the said decree, and have been required to deliver possession of the same, which you refuse to do, and a commission of rebellion having been issued against you, etc., it was ordered that an injunction be awarded against you, the said defend- ants, to enjoin you to deliver possession of the said mes- suages, and lands to the said complainant, pursuant to said decree. We, therefore, in consideration of the premises, do strictly enjoin and command you, the said Edward Willis and William Willis, and both of you, and all and every other persons aforesaid, under the penalty of one thou- sand pounds to be levied upon your, each and every of your, lands, goods, and chattels, to our use, that you, OF THE EXECUTION OF DECREES. 169 each and every of you, do deliver the possession of the said messuages, lands, and premises, and of every part and parcel thereof, to the said , and hereof fail not at your peril. Witness ourself at "Westminster, the day of , in the 36th year of our reign. Eliot. 170 OP EEVTEWING DECREES Iff EQUITY. CHAPTER XIII. OF REVIEWING DECREES IN EQUITY. If after the enrollment of the decree, any new matter or evidence be discovered, which could not have been had or used when the decree was rendered ; or if an ap- parent error of judgment appear on the face thereof, it may be reconsidered by means of a bill of review. A bill of review has been said to be in the nature of a writ of error, and its object is to procure an examination and alteration or reversal of a decree made upon a former bill, which decree has been signed and enrolled. Where the bill of review is founded upon errors ap- parent on the face of the decree, it may be filed without leave of the court. But a bill of review founded upon newly discovered evidence, may be allowed or refused at the discretion of the court. And leave will not be granted until the party has actually rendered obedience to the decree, as far as it can be done without prejudic- ing the rights which he may seek to establish by the review, unless indeed in some special cases where the court will dispense with the immediate performance, up- on the parties entering into sufficient security for its per- formance eventually. "Where the errors are apparent upon the face of the decree, the bill of review must be brought within the same period which limits writs of error at law ; and the same rule applies without doubt as to the time which may elapse before it is filed after the discovery of new matter. But in reviewing a decree, no facts can be en- tered into which were before in issue, or which were known to the parties at the time of the former trial ; for OF KEVIBWING DECREES IN EQUITY. 171 the same reason that no witnesses can be examined in a cause after publication, that is to say, an apprehension of perjury ; and it must always be either for error ap- pearing on the face of the decree, or upon some new matter, as a release, etc., " for unless it were confined to such new matter, it might be made use of as a method for a vexatious person to be oppressive to the other side, and for the cause never to be at rest." This bill must recite the former bill, and the proceed- ings which have been had upon it; the former decree of the court ; the points in which such decree is conceived to be erroneous ; and the facts which have come to light since the former hearing ;^ after which it usually proceeds thus : ' The following form is borrowed from Blake's Chancery Practice: Bill of Review. To the honorable James Kent, chancellor of the State of New York : Humbly complaining, showeth unto your honor, your orator A. B., of the city and county of New York, etc. [setting forth the former bill as in the decretal order], and thereupon the defendants answered; that the plaintiffs replied, and witnesses were examined and their depositions published, etc. ; that the cause came on to hearing, and was heard and decreed by his honor, the chancellor, after which, etc., petitioned for a re-hearing to his honor, the chan- cellor, and the cause was accordingly re-heard, and a decree for the reversal was made by his honor, the chancellor ; [set out the decree], and that the decree is signed and enrolled in this court; but your orator does aver and say, that he is aggrieved by the said last de- cree, and that he ought not to be bound thereby, nor should any such have been made or pronounced against your orator ; neither ought your orator to pay, etc., as by the said decree is appointed; and that the said decree is erroneous, and ought to be reversed; and for error do, according to the course of this honorable court, assign the errors therein as foUoweth : First. Your orator says and hopes to maintain, that, etc., which is altogether uncertain, etc. Secondly. That, or which appears by, etc., to be fraudulent and corrupt. Thirdly. That, etc., was not alive at the time of the said decree made in the said cause against your orsxtor, and so could not be bound by the said decree, and consequently your orator ought not 172 OF REVIEWIMS DECREES IN EQUITY. For all which errors and imperfections in the said de- cree, your orators have brought this their bill of review, and humbly conceive tliey should be relieved therein. In tender consideration whereof, and for that there are divers other errors and imperfections in said decree and proceedings, by reason whereof the same ought to be re- viewed and reversed, added to, altered and amended, and that the said James Willis may answer the premises, and that your orator may be relieved in all and singular therein, according to equity and good conscience. May it please, etc., (to grant subpena as in other cases.) A. Stainsbt. If the decree had been executed, the bill should pray for a further decree of the court, to put the complainant in his original situation. To a bill of review for error apparent, the defendant seldom answers otherwise than by demurrer; " for that the said decree is free from the errors complained of." A demurrer, however, rarely lies to the bill of review founded upon the discovery of new matter; for being exhibited only by leave of the court, the gi'ouud of it is generally well considered before it is brought. This demurrer being set down to be argued, the court proceeds to reverse or affirm the former decree, and the to be bound thereby ; for all which said errors and imperfections in the said decree your orator has brought this his said bill of review, and humbly conceives he should be relieved therein. In tender consideration whereof, and for that there are divers other errors and imperfections in the said decree and proceedings, by reason where- of the same ought to be reviewed and reversed, altered, etc., and that the said, etc., may answer the premises; and that your orator may be relieved in all and singular the premises, according to equity and good conscience, etc. May it please your honor, to grant the most gracious writ of subpena of the people of the State of New York, issuing out of and under the seal of this honorable court, to be directed to, etc. Commanding him, etc. OF REVIEWING DECREES IN EQUITY. 173 prevailing party becomes entitled to the sum deposited, as security for costs. Besides bills of review there are two other classes of bills which are exhibited subsequently to a decree, and which deserve notice, namely : bills to impeach a decree on account of fraud, and bills to carry decrees into exe- cution. If a decree has been obtained by fraud, it may be impeached by original bill, without the leave of the court; the fraud used in obtaining the decree being the principal point at issue, and necessary to be established by proof before the propriety of the decree can be in- vestigated. And where a decree has been thus obtained, the court will restore parties to their oi'iginal situation, whatever their rights may be. A bill to set aside a decree for fraud, must state the decree, and the proceed- ings which led to it, with the circumstances of fraud on which it is impeached. The prayer must necessarily be varied according to the nature of the fraud used, and the extent of its operation in obtaining an improper decision of the court. Sometimes from neglect of the parties, or other reason, it becomes impossible to carry a decree into execution, without the further order of the court. This happens generally, where the rights of parties under a decree have become so entangled and embarrassed, from their neglect to proceed under it, by subsequent events, that it is necessary to have the decree of the court to settle and ascertain them. The court in these cases does not ordinarily vary the original decree, but simrjlv enforce it. 174 OP APPEAL TO THE CHAPTER XIV. OP APPEAL TO THE HOUSE OF LOEDS.^ Ip either of the parties be dissatisfied with the decision of the court in whicli the suit has been prosecuted, they have yet a further resort, by appeal to the House of Lords. The decrees of the chancellor were originally final and conclusive. 'No appeal from his decision seems ever to have been allowed before 1581 ; but when courts of equity became the principal tribunals for deciding questions of property, it became obvious to the reason 'In the United States, the right of appeal is generally confined to final decrees. In England, however, there is no practical dis- tinction upon this subject between final and interlocutory decrees. The right of appeal depends upon an arbitrary regulation, equally applicable to both kinds, to-wit: their enrollment. A decision of the chancellor which gives relief to any extent, or which settles a principle, may be brought at once before the House of Lords, if the decree or order has been enrolled; but the discussion in the appel- late forum, is confined to the decree which is the subject of appeal, and can not be extended to any previous proceedings, however much the justice of the case may require it, without a formal exten- sion of the right of appeal. There is, also, another difference be- tween the English and American practice. An appeal, in England, does not of itself suspend proceedings upon the decree, without a special order to that effect, which is rarely granted. If the pro- gress of a suit in chancery could be delayed by an appeal from any of the various interlocutory orders, which the circumstances of the case may require, it would become, as has been justly observed, the greatest judicial nuisance in the world; the arm of justice would be palsied; the whole business of the court of chan- cery be drawn into the court of last resort, before it had become ripe for discussion there; and thus not only render the voice of that court mute, and its process nugatory, but would destroy the appellate court itself, by overwhelming it with business. HOUSE OF LORDS. 175 of all mankind, that a revision of their decrees, hy way of appeal, was as necessary as writs of error to the judg- ments of courts of law; and though the appellate juris- diction was long and warmly controverted, it finally pre- vailed. The appeal is heard on a mere paper petition of the party, without any writ from the king, the found- ation of which is said to be that this house, being the great court of the king, out of which the chancery was originally derived, petition will consequently bring the cause and record before them. Form of Petition. Between James Willis, by John Willis, his father and next friend, complainant, and Edward Willis and Wm. Wil- lis, executors of the last will and testament of Thomas Atkins, Esq., deceased, defendants. To the right honorable, the lords spiritual and tem- poral, in parliament assembled : The humble petition and appeal of the said defendants showeth. That, etc. (setting forth the defendant's case). That the said complainant, James "Willis, some time in or about Trinity term, 1785, exhibited his bill in the high court of chancery against your petitioners, to be relieved, etc. (the prayer of the bill.) To which bill your said petitioners appeared and answered ; and thereby insisted, That, etc. (such parts of answer as the defendant alleged in rebuttal of the charges of plaintiff's bill). That the plaintiflt' having replied to the said answer, and your petitioners having rejoined, the said cause was at issue, and divers witnesses being examined on both sides, the same came on to be heard before the Lord Chancel- lor of Great Britain, the day of , 1785 ; when although your petitioners, by their said answer, and also divers witnesses by their depositions, did expressly swear, etc. (the facts sworn in the answer,, and by the witnesses, and on the grounds of which the appeal is 176 OF APPEAL TO THE made), his lordship was pleased to decree, That, etc. (the decree and subsequent proceedings, if any, before the master). That your petitioners are advised that the said decree and subsequent orders are erroneous, and humbly appeal therefrom to your lordships. Your petitioners therefore, humbly pray your lord- ships to grant to your petitioners your lordships' order of summons to the said complainant to put in his an- swer to this, your petitioners' appeal, at such time as your lordships shall prefix, in order that your lordships may hear the said cause ; and that your lordships will please to reverse the said decree and subsequent orders in the said cause, or grant to your petitioners such relief in the premises as to your lordships, in your great wis- dom, shall seem meet; and your petitioners shall ever pray, etc. Edwakd Willis, 1 ^„„g77a«/s William Willis, / ^PP^^l'"'^^^- A. Stain sby, \ n^y^r^^.i G. Maddocks, / ^°^^^^'- This petition is lodged with the clerk of the house, and the respondent, being furnished with a copy, is ordered to put in his answer within a limited time. The Form of Bespondent s Answer. The Answer of James Willis to the Petition and Appeal of Edward Willis and William Willis. ■ This respondent, not confessing or acknowledging all or any of the matters or things to be true, as in and by the said petition and appeal are mentioned and set forth, for answer thereto saith, that he believes it to be true that such decree as is complained of was made by the court of chancery, as in the said petition and appeal are mentioned and set forth ; but, as to the dates, substance, and contents thereof, this respondent humbly craves leave HOUSE OF LORDS. 177 to refer thereunto, when the same shall be produced; and this respondent humbly conceives, and is advised, that the said decree is agreeable to equity and justice, and therefore humbly hopes that the same will be affirmed and that the said petition and appeal will be dismissed this most honorable court, with costs. A. Manning. The answer of the respondent having come in, a day is appointed, of which notice is given to the other party, for hearing the merits of the appeal. Upon a re-hearing or review, new matter, as we have seen , may be introduced ; but no new evidence can be admitted upon an appeal to the house of lords. It is not the case of the same juris- diction revising and correcting its own acts. It is a practice unknown to our law (though constantly followed in the spiritual courts), when a superior court is review- ing the sentence of an inferior, to examine the justice of the former decree by evidence that was never produced below.^ The cause being fully heard, their lordships " order and adjudge the said appeal to be dismissed," "the said decree to be reversed, and the bill of the said respondent ^The form of proceeding at the hearing of an appeal is prescribed by the house to be that " one of the counsel for the appellant shall open the cause; then the evidence on their side shall be read; which done, the other counsel of the appellants may make observations on the evidence ; then one of the counsel tor the respondent shall be heard, and the evidence on their side read; after which the other counsel for the respondents shall be heard, and one counsel only for the appellants' reply." Ord. 2 Mar. 1727. And printed copies of the respective cases of the appellant and respondent are usually delivered to the lords, previous to the day appointed for the hearing. And by Oi'd. 19, Ap. 1698, they are to be signed by the counsel retained in the cause, of which only two are allowed on each side in the house of lords, though any number may be engaged in the courts below. 12 178 OF APPEAL TO THE HOUSE OF LORDS. to be dismissed," or pronounce such other decretal order, affirming, reversing, or varying the decree of the court below, as to their w^isdom seems equitable. And this order being absolute and irrevocable, puts an end to our suit in equity. KULE8 OF PRACTICE FOR THE Courts of Equity of the United States. PROMULGATED BT THE SUPREME COUKT OP THE UNITED STATES, JANUARY TERM, 1843, THE ADDITIONAL RULES AND AMENDMENTS OF RULES, ADOPTED AND PROMULGATED SINCE THAT TIME. PKELIMINART REGULATIONS. 1. 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 interlocutory motions, orders, rules, and other pro- ceedings, preparatory to the hearing of all causes upon their merits. 2. The clerk's office shall be open, and the clerk shall be in attendance thereon, on the first Monday of every month, for the purpose of receiving, entering, entertain- ing, 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 eases pending in equity, in pursuance of the rules hereby pre- scribed. (179) 180 RULES OF PKACTICE IfOR THE 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 hear- ing. 4. All motions, 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 iu 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 inspec- tion of the parties in any suit in equity, and their solici- tors. 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 required. Where the solicitors for all the parties in the 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 COURTS OP EQUITY OF THE UNITED STATES. 181 proceedings not requiring personal service on the parties, in their discretion. 5. All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees; for filing bills, answers, pleas, de- mnrrers, and other pleadings; for making amendments to bills and answers ; for making bills jpro confesso ; for filing exceptions, and for other proceedings in the clerk's office which do not, by the rules hereinafter described, require any allowance or order of the court, or of any judge thereof, shall be deemed motions and applications, grantable of course by the clerk of the court. But the same may be suspended, or altered, or rescinded by any judge of the court, upon special cause shown. 6. 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 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 discretion. Process. The process of subpena shall constitute theproper mesne process in all suits in equity, in the first instance, to re- quire the defendant to appear and answer the exigency of the bill ; and, unless otherwise provided in these rules, or specially ordered by the circuit court, a writ of attach- 182 RULES OF PRACTICE FOR THE meiit, and, if the defendant can not be found, a writ of sequestration, or a writ of assistance to enforce a de- livery of possesion, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court. 8. Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of exe- cution, in the form used in the circuit court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or the deliver- ing up of deeds, or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound without further service to take notice ; and upon affidavit of the plaintiff', filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court or of a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party can not be found, a writ of sequestra- tion shall issue against his estate upon the return of non est inventus, to compel obedience to the decree. 9. When any decree or order is for the delivery of pos- session upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. COURTS OF EQUITY OF THE UNITED STATES. 183 10. Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if he were a party to the cause; and every person, not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for en- forcing obedience to, such order as if he were the party in the cause. Service of Process. 11. !N"o process of subpena shall issue from the clerk's office in any suit in equity until the bill is filed in the office. 12. Whenever a bill is filed, the clerk shall issue the pro- cess of subpena thereon, as of course, upon the applica- tion of the plaintiff, which shall be returnable into the clerk's office the next rule-day, or the next rule-day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof At the bot- tom of the subpena shall be 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 returnable ; otherwise, the bill may be taken -pro con- fesso. "Where there are more than one defendant, a writ of subpena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of husband and wife defendants, or a joint subpena against all the defendants. 184 EULES OF PKACTIOB FOR THE 13. The service of all snbpenas shall be by a delivery of a copy thereof by the officer serving the same to the de- fendant personally, or, in case of husband and wife, to the husband personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each de- fendant, with some free white person who is a member or resident in the family. \_See Amendment, p. 216.] 14. Whenever any subpena shall be returned not executed as to any defendant, the plaintifi" shall be entitled to an- other subpena, toties quoties, against such defendant, if he shall require it, until due service is made. 15. 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 per- son serving the process shall make affidavit thereof. 16. Upon the return of the subpena as served and exe- cuted 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. Appearance. 17. The appearance-day of the defendant shall be the rule- day to which the subpena is made returnable, provided COURTS OF EQUITY OF THE UNITED STATES. 185 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. The appearance of the defendant, either personally or by his solicitor, shall be entered in the order-book on the day thereof by the clerk. Bills taken Pro Confesso. 18. It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer, or answer to the bill, in the clerk's office, on the rule-day next succeeding that of entering his ap- pearance. In default thereof, the plaintiff' may, at his election, enter an order (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 decreed by the court at the next ensuing term thereof accordingly, if the same can be done with- out an answer, and is proper to be decreed ; or the plain- tiff", if he requires any discovery or answer to finable him to obtain a proper decree, shall be entitled to process of attachment against the defendant, to compel an answer and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon tiling hie answer, or otherwise complying with such order as the court or a judge thereof may direct, as to pleading to oi • fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause 19. When the bill is taken pro confesso, the court may pro- ceed to a decree at the next ensuing term thereof, and 180 RULES OP PRACTICE FOR THE 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 an- swer within such time as the court shall direct, and sub- mit to such other terms as the court shall direct, for the purpose of speeding the cause. Frame of Bills. 20. Every bill, in the introductory part thereof, shall con- tain the names, places of abode, and citizenship of all the parties, plaintifts and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows : " To the Judges of the Circuit Court of the United States for the district of : A. B., of , and a citizen of 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, that," etc. 21. The plaintiff", in his bill, shall be at liberty to omit, at his option, the part which is usually called the common confederacy clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiff"; also what is commonly called the charging part of the bill, setting forth the matters or excuses which the de- fendant is supposed to intend to set up by way of defense to the bill; also what is commonly called the jurisdic- tion clause of the bill, that the acts complained of are COURTS OP EQUITY OP THE UNITED STATES. 187 contrary to equity, and that the defendant is without any remedy at iaw; and the bill shall not be demurrable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter-aver- ments, at his option, any matter or thing which he sup- poses will be insisted upon by the defendant by way of defense or excuse to the case made by the plaintiff 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; and if an in- junction, or a writ of ne exeat regno, or any other special order pending the suit, is required, it shall also be spe- cially asked for. 22. If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the juris- diction of the court, or that they can not be joined with- out ousting the jurisdiction of the court as to the other parties. And as to persons who are without the juris- diction 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. 23. The prayer for process of subpena in the bill shall con- tain the names of all the defendants named in the intro- ductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon as justice may require, upon the return of the process. 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 sufficient without re- peating the same in the prayer for process. 188 RULES OF PRACTICE FOR THE 24. Every bill shall contain the signature of counsel an- nexed 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. 25. In order to prevent unnecessary costs and expenses, and to promote brevity, succinctness, and directness in the allegations of bills and answers, the regular taxable costs for every bill and answer shall in no case exceed the sum which is allowed in the state court of chancery in the district, if any there be ; but if there be none, then it shall not exceed the sum of three dollars for every bill or answer. Scandal and Impertinence in Bills. 26. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no un- necessary recitals of deeds, documents, contracts, or other instruments, in hcec verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may on exceptions be referred to a master b}' 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 de- fendant all his costs in the suit up to that time, unless th-e court or a judge thereof shall otherwise order. If the master shall report that the bill is not scandalous or impertinent, the plaintiff' shall be entitled to all costs oc- casioned by the reference.- COURTS OF EQUITY OP THE UNITED STATES. 189 27. No order shall be made by any judge for referring any bill, answer, or pleading, or other matter, or proceeding depending before the court for scandal' or impertinence, unless exceptions are taken in writing and signed by counsel, describing the particular passages which are con- sidered to be scandalous or impertinent ; nor unless the exceptions shall be filed on or before the next rule-day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned, unless the party obtaining the order shall, without any unnecessary delay, procure the master to examine and report for the same on or before the next succeeding rule-day, or the master shall certify that further time is necessary for him to complete the examination. Amendment of Bills. 28. The plaintiff shall be at liberty, as a matter of course, and without payment of costs, to amend his bill in any matters whatsoever, before any copy has been taken out of the clerk's oflice, and in any small matters afterward, such as filling blanks, correcting errors of dates, misno- mer of parties, mis-description of premises, clerical er- rors, 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 demur- rer 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 refer- ences to the places where the same are to be inserted. And if the amendments are numerous, he shall furnish in like manner to the defendant, a copy of the whole bill 190 RULES OE PKACTICB FOE THE as amended ; and if there be more than one defendant, a copy shall be furnished to each defendant aflected thereby. 29. After an answer, or plea, or demurrer is put in, and before replication, the plaintiff may, upon motion or pe- tition, without notice, obtain an order from any judge of the court to amend his bill on or before the next succeed- ing rule-day, upon payment of costs or without payment of costs, as the court or a judge thereof may in his dis- cretion direct. But after replication filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause. 30. If the plaintiff, so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replica- tion, shall not file his amendments or amended bill, as the case may require, in the clerk's office, on or before the next succeeding rule-day, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. Demurrers and Fleas. 31. Ko demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel, that in his opin- ion it is well founded in point of law, and supported by COURTS 01" EQUITY OE THE UNITED STATES. 191 the affidavit of the defendant, that it is not interposed for delay ; and if a plea, that it is true in point of fact. 32. The defendant may, at any time before the bill is taken for confessed, or afterward with the leave of the court, demur or plead to the whole bill, or to part of it, and he may demur to part, plead to part, and answer as to the residue; but in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an answer fortifying the plea, and explicitly denying the fraud and combination, and the facts on which the charge is founded. The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. 34. If, upon the hearing, any demurrer or plea is overruled, tbe plaintiff shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defendant had good ground in point of law or fact to in- terpose the same, and it was not interposed vexatiously, or for delay. And upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or de- murrer, the next succeeding rule-day, or at such other period as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done; in default whereof, the bill shall be taken agiiinst him, pro confesso, and the matter thereof proceeded in and decreed accoi'dingly. 192 RULES OF PRACTICE FOR THE 35. If, upon the hearing, any demurrer or plea shall be al- lowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plain- tifl', allow him to amend his bill upon such terms as it shall deem reasonable. 36. 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. 37. 'So demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defend- ant may extend to some part of the same matter as may be covered by such demurrer or plea. 38. If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument, on the rule-day when the same is filed, or on the next succeeding rule-day, he shall be deemed to admit the truth and sufficiency there- of, aud his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for the purpose. Answers. 39. The rule, that if a 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 de- fendant shall be entitled in all cases by answer to insist upon all matters of defense (not being matters of abate- COURTS OF EQUITY OF THE UNITED STATES. 193 ment or to the character of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar ; and in such answer he shall not be compellable to answer any other matters than hd 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 bona fide purchaser, for a valuable consider- ation, without notice, may set up that defense by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. 40. A defendant shall not be bound to answer any state- ment or charge in the bill, unless specially and particu- larly interrogated thereto ; and a defendant shall not be bound to answer any interrogatory in the bill, except those interrogatories which such defendant is required to answer; and where a defendant shall answer any statement or charge in the bill, to which he is not inter- rogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed im- pertinent. \_This rule was repealed and annulled, December Term-, 1850. See page 214.] 41. The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and numbered consecutively 1, 2, 3^ etc. ; and the interrogatories which each defendant is re- quired to answer shall be specified in a note at the foot 13 194 RULES OF PBACTICE FOE THE of the bill, in the form or to the effect following; that is to say — ^"The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3, etc. ;" and the office copy of the bill taken by each defendant shall not contain any interrogatories except those which such defendant is so required to answer, unless such de- fendant shall requii-e to be furnished with a copy of the whole bill. [See Amendment, p. 215.] 42. The note at the foot of the bill, specifying the inter- rogatories which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any altera- tion in, or addition to, such note after the bill is filed, shall be considered and treated as an amendment of the bill. 43. Instead of the words of the bill now in use, preceding the interrogating part thereof, and beginning with the words " To the end, therefore," there shall hereafter be used words in the form or to the effect following: " 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 respect- ive corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect an- swer make to such of the several interrogatories herein- after numbered and set forth, as by the note hereunder written they are respectively required to answer; that is to say — "1. Whether, etc. "2. Whether, etc." COURTS OF EQUITY OF THE UNITED STATES. 195 44. 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, notwithstanding he shall answer other parts of the bill, from which he might have protected himself by demur- rer. 45. 'No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court, or a judge thereof, may in his dis- cretion direct. 46. In every case where an amendment shall be made after answer filed, the defendant shall put in a new or supple- mental answer, on or before the next succeeding rule- day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and upon his default the like proceedings may be had as in cases of an omission to put in an answer. Parties to Bills. 47. In all cases where it shall appear to the court that per- sons, who might otherwise be deemed necessary or proper parties to the suit, can not be made parties by reason of their being out of the jurisdiction of the court, or inca- pable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in their .discretion 196 RULES OP PRACTICE FOR THE proceed in the cause without making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent parties. 48. Where the parties on either side are very numerous, and can not, without manifest inconvenience and op- pressive delays 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 suffi- cient 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 present parties. 49. In all suits concerning real estate, which is vested in trustees by devise, and such trustees are competent to sell and give discharge for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or the rents and profits, in the same manner, and to the same extent, as the executoi'S or ad- ministrators in suits concerning personal estate repre- sent the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real es- tate, or rents and profits, parties to the suit; but the court may, upon consideration of the matter on the hear- ing, if it shall so think fit, order such persons to be made parties. 50. In suits to execute the trusts of a will, it shall not be necessary to make the heir-at-law a party ; but tlie plain- COURTS OF EQUITY OP THE UNITED STATES. 197 tift' shall be at liberty to make the heir-at-law a party where he desires to have the will established against him. 51. In all eases in which the plaintiff has a joint and sev- eral demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court, as parties to a suit concerning such demand, all the persons liable thereto ; but the plaintiff may proceed against one or more of the persons severally liable. 52. Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that ob- jection only ; and the purpose for whicli the same is so set down shall be notified by an entry, to be made in the clerk's order book, in tlie form or to the effect following, (that is to say,) " Set down upon defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled, as of course, to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. 53. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the court (if it shall think fit) shall be at liberty to make a decree saving the rights of the absent parties. 198 KULES OF PRACTICE FOR THE Nominal Parties to Bills. 54. "Where no account, payment, conveyance, or other di- rect relief is sought against a party to a suit, not being an infant, the party, upon service of the subpena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill ; but he may appear and answer at his option ; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer, he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. 55. Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his ap- pearance and plead, demur, or answer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled, as of course, upon motion without no- tice, to such injunction. But special injunctions shall be grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte, if the adverse party does not appear at the time and place ordered. In every case where an injunction, either the common injunction or a special injunction, is awarded in vacation, it shall, unless previously dissolved by the judge granting the same, con- tinue until the next term of the court, or until it is dis- solved by some other order of the court. COURTS OF EQUITY OF THE UNITED STATES. 199 Bills of Revivor and Supplemental Bills. 56. "Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the na- ture of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same ; which bill may be filed in the clerk's office at any time ; and upon suggestion of the facts, the proper process of subpena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule-day which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course. 57. "Whenever any suit in equity shall become defective, from any event happening after the filing of the bill (as, for example, by change of interest in the parties), or for any other reason a supplemental bill, or a bill in the na- ture of a supplemental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule-day, upon proper cause shown, and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead, or answer thereto, on the next suc- ceeding rule-day after the supplemental bill is filed in the clerk's office, unless some other time shall be as- signed by a judge of the court. 200 RULES OF PRACTICE FOR THE 58. It shall not be necessary in any bill of revivor or sup- plemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. Answers. 59. Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed by any circuit court to take testimony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a state or territory. Amendment of Answers. 60. 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 repli- cation is put in, or the cause is set down for a hearing Tipon bill and answer. But after replication, or such set- ting 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 statements, except by special leave of the court or of a judge thereof, upon motion and cause shown after due notice to the adverse party, supported, if required, by 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 distin- guishable therefrom. COURTS OF EQUITY OF THE UNITED STATES. 201 Exceptions to Answers. 61. After an answer is filed on any rule-day, the plaintiff shall be allowed until the next siicceeding rule-day to file in the clerk's ofiice exceptions thereto for insufli- ciency, and uo longer, unless a longer time shall be al- lowed for the purpose, upon cause shown to the court or a judge thereof; and if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. 62. When the same solicitor is employed for two or more defendants, and separate answers shall be filed, or other proceedings had by two or more of the defendants sepa- rately, costs shall not be allowed for such separate an- swers or other proceedings, unless a master, upon refer- ence to him, shall certify that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. 63. "Where exceptions shall be filed to the answer for in- sufficiency within the period prescribed by these rules, if the defendant shall not submit to the same and file an amended answer on the next succeeding rule-day, the plaintiff shall forthwith set them down for a hearing on the next succeeding rule-day thereafter before a judge of the court, and shall enter, as of course, in the order- book, an order for that purpose. And if he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answer shall be deemed suffi- cient ; provided, however, that the court, or any judge thereof, may, for good cause shown, enlarge the time for 202 RULES OF PRACTICE FOR THE filing exceptions, or for answering the same, in his dis- cretion, upon such terms as he may deem reasonable. 64. If at the hearing the exceptions shall he allowed, the defendant shall be bound to put in a full and com- plete answer thereto on the next succeeding rule-day ; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions ; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer and complying with such other terms as the court or judge may direct. 65. If, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be ad- judged insufficient, the prevailing party shall be enti- tled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hear- ing upon the exceptions. Replication and Issue. 66. "Whenever the answer of the defendant shall not be ex- cepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto on or before the next succeeding rule-day thereafter ; and in all cases where the general replication is filed the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. COURTS OF EQUITY OF THE UNITED STATES. 203 If the plaintiff shall omit or refuse to file such replica- tion within the prescribed period, the defendant shall he entitled to an order, as of course, for a dismissal of the suit ; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filled nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. Testimony — How Taken. 67. After the cause is at issue, commissions to take testi- mony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same in the clerk's ofiice, 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. In all cases the com- missioner or commissioners shall be named by the court, or by a judge thereof. If the parties shall so agree, the testimony may be taken upon oral interrogatories by the parties or their agents, without filing any written inter- rogatories. December Term., 1854. Ordered, That the sixty-seventh rule governing equity practice be so amended as to allow the presiding judge of any court exercising jurisdiction, either in term time or vacation, to vest in the clerk of said court general power to name commissioners to take testimony in like manner that the court or judge thereof can now do by the said sixty-seventh rule. 204 RULES OF PRACTICE FOR THE December Term, 1861. Ordered, That the last paragraph in the sixty-seventh rule in equity be repealed, and the rule be amended as follows : 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 exam- ined 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 cross-examination, and re-examina- tion, and which shall be conducted as near as may be in the mode now used in common law courts. The deposi- tions taken upon such oral examination shall be taken down in writing by the examiner in the form of narra- tive, unless he determines the examination shall be by question and answer in special instances ; and, when com- pleted, 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 re- fuse to sign the said deposition, then the examiner shall sign the same ; and the examiner may upon all exami- nations 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 dep- osition, but he shall not have power to decide on the competency, materiality, or relevancy of the ques- tions ; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant deposi- tions, or parts of them, as may be just. COURTS OF EQUITY OF THE UNITED STATES. 205 The Compulsory Attendance of Witnesses. lu case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. IS'otice shall be given by the respective counsel or soli- citors, to the opposite counsel or solicitors or parties, of the time and place of the examination, for such reason- able time as the examiner may fix by order in each cause. When the examination of witnesses before the exam- iner 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 of rec- ord in the same mode as prescribed in the thirtieth sec- tion of act of Congress, September 24, 1789. Testimony may be taken on commission in the usnal way by written interrogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge. December Term, 1869. Ordered, "Where the evidence to be adduced in a cause is to be taken orally, as provided in the order passed at the December term, 1861, amending the 67th General Rule, the court may, on motion of either party, assign a time within which the complainant shall take his evi- dence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in reply ; and no further evidence shall be taken in the cause unless by agreement of the parties, or by leave of the court first obtained on motion for cause shown. 206 RULES OF PRACTICE FOR THE 68. Testimony may also be taken in the cause, after it is at issue, by deposition, according to the acts of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examination of the witness either under a commission or by a new deposition taken under the acts of Congress, if a court or a judge thereof shall, under all the circumstances, deem it reasonable. 69. 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. Immediately upon the return of the commissions and depositions containing the tes- timony into the clerk's office, publication thereof may be ordered in the clerk's office by any judge of the court, upon due notice to the parties, or it may be enlarged, as he may deem reasonable under all the circumstances. But, by consent of the parties, publication of the testi- mony may at any time pass in the clerk's office, such consent being in writing, and a copy thereof entered in the order-books, or indorsed upon the deposition or tes- timony. Testimony de bene esse. 70. After any bill filed, and before the defendant hath an- swered the same, upon affidavit made that any of the plaintiff's witnesses are aged and infirm, or going out of the counti'y, or that any one of them is a single wit- COURTS OF EQUITY OF THE UNITED STATES. 207 ness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such commissioner or commissioners, as a judge of the court may direct, to take the examination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking his testimony. Form of the Last Interrogatory. 71. The last interrogatory in the written interrogatories to take testimony now commonly in use shall in the fu- ture be altered, and stated in substance thus : " 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 question in this cause ? If yea, set forth the same fully and at large in your answer." Cross-bill. 72. Where a defendant in equity files a cross-bill for dis- covery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto, before the original plaintiff shall be compellable to an- swer 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. 208 UTILES 01' PRACTICE FOR THE Eeference to and Proceedings before Masters. 73. Every decree for an account of the personal estate of a testator or intestate shall contain a direction to the mas- ter, to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such per- sonal estate are outstanding or undisposed of, unless the court shall otherwise direct. 74. Whenever any reference of any matter is made to a master to examine and report thereon, the party at whose instance, or for whose benefit, the reference is made, shall cause the same to be presented to the master for a hear- ing on or before the next rule-day succeeding the time when the reference was made ; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master at the costs of the party procuring the reference. 75. Upon every such reference it shall be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for pro- ceedings in the same, and to give due notice thereof to each of the parties or their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examination and proceed- ings to a future day, giving notice to the absent party or his solicitor of such adjournment ; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court. COURTS OP EQUITY OP THE UNITED STATES. 209 or a judge thereof, for an order to the master to speed the proceedings, and to make his report, and to certify to the court or judge the reasons for any delay. 76. In the reports made by the master to tlie court no part of any state of facts, charge, affidavit, deposition, exam- ination or answer, brought in or used before them, shall be stated or recited. But such state of facts, charge, affi- davit, deposition, examination, or answer, shall be identi- fied, specified, and referred to, so as to inform the court what state of facts, charge, affidavit, deposition, exami- nation, or answer, were so brought in or used. 77. The master shall regulate all the proceedings in every hearing before him, upon every such reference ; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference ; and also to require the production of all books, papers, writings, vouchers, and other documents appli- cable thereto ; and also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon bis certificate from the clerk's office, or by deposition, according to the acts of Congress, or otherwise, as hereinafter provided; and also to direct the mode in which the matters requiring evidence shall be proved before him ; and generally to do all other acts, and direct all other inquiries and proceed- ings in the matters before him, which he may deem nec- essary and proper to the justice and merits thereof and the rights of the parties. 14 210 RULES OE PRACTICE FOR THE 78. Witnesses who live within the district may, upon due notice to the opposite party, be summoned to appear be- fore the commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master, or examiner, re- quiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court; and if any witness shall refuse to appear, or to give evidence, it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or ex- aminer, an attachment may issue thereupon by order of the court, or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. But nothing herein con- tained shall prevent the examination of witnesses viva voce when produced in open court, if the court shall, in its discretion, deem it advisable. 79. All parties accounting before a master, shall bring in their respective accounts in the form of debtor and cred- itor ; and any of the other parties who shall not be sat- isfied with the accounts so brought in shall be at liberty to examine the accounting party viva voce, or upon inter- rogatories in the master's office, or by deposition, as the master shall direct. 80. All affidavits, depositions, and documents which have been previously made, read, or used in the court, upon any proceeding in any cause or matter, may be used be- fore the master. COURTS OF EQUITY OF THE UNITED STATES. 211 81. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories, or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court, if nec- essary. 82. The circuit courts may appoint standing masters in chancery in their respective districts, both the judges concurring in the appointment ; and they may also ap- point a master pro hac vice in any particular case. The compensation to be allowed to every master in chancery for his services in any particular case shall be fixed by the circuit court in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by Such of the parties in the cause as the court shall direct. The master shall not re- tain his report as security for his compensation ; but when the compensation is allowed by the court, he shall be en- titled to an attachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. Exceptions to Report of Master. 83. The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order-book. The parties shall have one month from the time of filing the report to file exceptions thereto; and if no exceptions 212 RULES OP PKACTICB FOR THE are within that period filed by either party, the report shall stand confirmed on the next rule-day after the month is expired. If exceptions are filed, they shall stand for hearing before the court, if the court is then in ses- sion ; or, if not, then at the next sitting of the court which shall be held thereafter by adjournment or other- wise. 84. And in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions ai'e overruled shall, for every ex- ception overruled, pay costs to the other party, and for every exception allowed shall be entitled to costs — the costs to be fixed in each case by the court, by a stand- ing rule of the circuit court. Decrees. 85. Clerical mistakes in decrees, or decretal orders, or ei*- rors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be cor- rected by order of the court or judge thereof, upon peti- tion, without the form or expense of a re-hearing. 86. In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior proceed- ing, 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.) COURTS OP EQUITY OF THE UNITED STATES. 213 Guardians and Prochein Amis. 87. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapa- ble to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court may direct for the protection of infants and other persons. 88. Every petition for a re-hearing shall contain the spec- ial matter or cause on which such re-hearing is ap- plied for, shall be signed by counsel, and the facts there- in stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person. I^o re-hearing shall be granted after the term at which the final decree of the court shall have been entered and re- corded, if an appeal lies to the supreme court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court in the dis- cretion of the court. 89. The circuit courts (both judges concurring therein) may make any other and further rules and regulations for the practice, proceedings, and process, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same. 90. In all cases where the rules prescribed by this court, or by the circuit court, do not apply, the practice of the circuit court shall be regulated by the present practice 214 RULES OF PEACTICB FOR THE of the high court of chancery in England, so far as the same may reasonably be applied consistently with the circumstances and local convenience of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice. 91. "Whenever, under these rules, an oath is or may be re- quired to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof, make sol- emn affirmation to the truth of the facts stated by him. 92. These rules shall take effect, and be in force, in all the circuit courts of the United States, from and after the first day of August next ; but they may be previously adopted by any circuit court in its discretion, and when and as soon as these rules shall so take effect and be of force, the rules of practice for the circuit courts in equity suits, promulgated and prescribed by this court in March, 1822, shall henceforth cease, and be of no further force or effect. And the clerk of this court is directed to have these rules printed, and to transmit a printed copy thereof, duly certified, to the clerks of the several courts of the United States, and to each of the judges thereof. December Term, 1850. 93. Ordered, That the fortieth rule heretofore adopted and promulgated by this court as one of the rules of practice in suits in equity in the circuit courts be, and the same is hereby, repealed and annulled. And it shall not here- after be necessary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complainant desires to do so, to obtain a discovery. COURTS OF EQUITY OF THE UNITED STATES. 215 December Term, 1863. 94. Ordered, That in suits in equity for the foreclosure of mortgages in the circuit courts of the United States, or in any court of the territories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the pro- ceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the 8th rule of this court regulating the equity practice, where the decree is solely for the payment of money .^ 95. Amendment to the Alst Rule. If the complainant, in his bill, shall waive an answer un- der 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 interroga- tories, shall not be evidence in his favor, unless the cause be set down for hearing on the bill and answer only ; but may, nevertheless, be used as an affidavit, with the same efiect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from be- coming a witness in his behalf, under section 3 of the act of Congress of July 2, 1864. [Promulgated May 6, 1872.] ' 1 Wall. 7. 216 RULES OF PRACTICE FOR THE 96. Amendment to the 13th Rule. The 13th rule of practice in equity is amended so that it will read as follows : " The service of all subpenas shall be by a 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." ^Promulgated May 3, 1875.J EULES OF THE UNITED STATES SUPREME COURT, DE- DEMBER TERM, 1858, AFFECTING EQUITY PRACTICE. 3. This court consider the practice of the Court of the King's [Queen's] Bench and of chancery, in England, as affording outlines for the practice of this court ; and they will from time to time make such alterations therein as circumstances may render necessary. 5. All process iu this court shall be in the name of the President of the United States. When process at common law or in equity shall issue against a state, the same shall be served on the governor, or chief executive magistrate, and attorney-general, of such state. Process of subpena issuing out of the court in any suit in equity, shall be served on the defendant sixty days be- fore the return day of said process; and if the defendant, on such service of the subpena, shall not appear at the COURTS OF EQUITY OF THE UNITED STATES. 217 return day contained therein, the complainant shall be at liberty to proceed ex jparte. 12. In all cases where further proof is ordered by the court, the depositions which shall be taken shall be by a com- mission to be issued from the court, or from any circuit court of the United States. 13. In all cases of equity and admiralty jurisdiction heard in this court, no objection shall hereafter be allowed to be taken to the admissibility of any deposition, deed, grant, or other exhibit found in the record, as evidence, unless objection was taken thereto in the court below, and entered of record ; but the same shall otherwise be deemed to have been admitted by consent. 218 LAWS OF THE UNITED STATES LAWS OF THE UNITED STATES RELATING TO EQUITY. UNITED STATES DISTRICT COURTS — JURISDICTION. Suits in Equity to enforce Internal Revenue Taxes. [Rev. Stat. 94] Sec. 563. The district court shall have jurisdiction as follows : ^ 5. Of all suits in equity to enforce the lien of the United States upon any real estate for any internal rev- enue tax, or to subject to the payment of any such tax any real estate owned by the delinquent, or in which he has any right, title, or interest. (See sec. 3207.) Suits to redress Deprivation of Mights. [Kev. Stat. 95.] % 12. Of all suits at law or in equity authorized by law to be brought by any person to redress the depriva- tion, under color of any law, ordinance, regulation, cus- tom, or usage of any state, of any right, privilege, or immunity secured by the constitution of the United States, or of any right secured by any law of the United States to persons within the jurisdiction thereof. (See sees. 1977, 1979.) Court always open for Certain Purposes. [Eev. Stat. 101.] Sec. 574. The district courts, as courts of admiralty, and as courts of equity, so far as equity jurisdiction has RELATING TO EQUITY. 219 been conferred upon them, shall be deemed always open for the purpose of filing any pleading, or issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to the hearing, upon their merits, of all causes pending therein. Aud any district judge may, upon reasonable notice to the parties, make, and direct and award, at chambers, or in the clerk's ofiice, and in vacation as well as in term, all such pro- cess, commissions, orders, rules, and other proceedings, whenever the same are not grantable of course, accord- ing to the rules and practice of the court. UNITED STATES CIRCUIT COURTS — JURISDICTION. Aliens — Citizens of Different States. [Rev. Stat. 109.] Sec. 629. The circuit courts shall have jurisdiction as follows : ^ 1. Of all suits of a civil nature at common law or in equity, where the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of the state where the suit is brought and a citizen of another state : Provided, that no circuit court shall have cogni- zance of any suit to recover the contents of any promis- sory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange. Suits in Equity by the United States. [Rev. Stat. 110.] ^ 2. Of all suits in equity, where the matter in dis- pute, exclusive of costs, exceeds the sum or value of five hundred dollars, and the United States are petitioners. 220 LAWS OF THE UNITED STATES Patent and Copyright Suits. ^ 9. Of all suits at law or in equity arising tfiader the patent or copyright laws of the United States. Appeals. [Eev. Stat. 112.] Sec. 631. From all final decrees of a district court in causes of equity or of admiralty and maritime jurisdic- tion, except prize causes, where the matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs, an appeal shall be allowed to the circuit court next to be held in such district, and such circuit court is re- quired to receive, hear, and determine such appeal. Copies of Proofs and Entries certified to Appellate Court. [Rev. Stat. 112.] Sec. 632. In case of an appeal, as provided by the pre- ceding section, copies of the proofs, and of such entries and papers on file as may be necessary on hearing of the appeal, may be certified up to the appellate court. Writs of Error and Appeals. [Eev. Stat. 112.] Sec. 635. 'Eo judgment, decree, or order of a district court shall be reviewed by a circuit court on writ of error or appeal, unless the writ of error is sued out, or the appeal is taken, within one year after the entry of such judgment, decree, or order : Provided, that when a party entitled to prosecute a writ of error or to take an appeal is an infant, or non compos meritis, or imprisoned, such writ of error may be prosecuted, or such appeal may be taken, within one year after the entry of the judgment, decree, or order, exclusive of the term of such disability. (See sec. 1008.) EBLATINQ TO EQUITY. 221 Courts alxoays o-pen for Certain Purposes. [Rev. Stat. 113.] Sec. 638. The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final pro- cess, and of making and directing all interlocutory mo- tions, orders, rules, and other proceedings, preparatory to the hearing, upon their merits, of all causes pending therein. And any judge of the circuit court may, upon reasonable notice to the parties, make, and direct and award, at chambers or in the clerk's office, and in vaca- tion as well as in term, all such process, commissions, or- ders, rules, and other proceedings, whenever the same are notgrantable of course, accordingto the rules and practice of the court. Transcripts on Appeals. [Rev. Stat. 130.] Sec. 698. Upon the appeal of any cause in equity, or of admiralty and maritime jurisdiction, or of prize or no prize, a transcript of the record, as directed by law to be made, and copies of the proofs, and of such entries and papers on file as may be necessary on the hearing of the appeal, shall be transmitted to the Supreme Court : Provided, that either the court below or the Supreme Court may order any original document or other evi- dence to be sent up, in addition to the copy of the rec- ord, or, in lieu of a copy, of a part thereof. And on such appeals no new evidence shall be received in the Supreme Court, except in admiralty causes. (See sec. 750.) When Suits in Equity may be maintained. [Rev. Stat. 137.] Sec. 723. Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law. 222 LAWS OF THE UNITED STATES Final Record — How made. [Rev. Stat. 141.] See. 750. In equity and admiralty causes, only the pro- cess, pleadings, and decree, and such orders and memo- randums as may be necessary to show the jurisdiction of the court and regularity of the proceedings, shall be en- tered upon the final record. (See sec. 698.) Mode of Proof. [Eev. Stat. 162.] Sec. 862. The mode of proof in causes of equity, and of admiralty and maritime jurisdiction, shall be accord- ing to rules now or hereafter prescribed by the Supreme Court, except as herein specially provided. Ilesne Process, and Proceedings in Equity. [Rev. Stat. 173.] Sec. 913. The forms of mesne process, and the forms and modes of proceeding in suits of equity, and of ad- miralty and maritime jurisdiction in the circuit and dis- trict courts, shall be according to the principles, rules, and usages which belong to courts of equity and of ad- miralty, respectively, except when it is otherwise pro- vided by statute, or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts, respectively, and to regula- tion by the Supreme Court, by rules prescribed, from time to time, to any circuit or district court, not incon- sistent with the laws of the United States. Power of the Supreme Court to regulate Practice. [Rev. Stat. 174.] Sec. 917. The Supreme Court shall have power to pre- scribe, from time to time, and iu any manner not incon- sistent with any law of the United States, the forms of KELATING TO EQUITY. 223 writs and other process ; the modes of framing and filing proceedings and pleadings; of taking and obtaining cA'i- dence ; of obtaining discovery ; of proceeding to obtain relief; of drawing up, entering, and enrolling decrees; and of proceeding before trustees appointed by the court, and generally to regulate the whole practice, to be used, in suits in equity or admiralty, by the circuit and district courts. Writs of Error and Appeals to Supreme Court. [Rev. Stat. 188.] Sec. 1008. No judgment, decree, or order of a circuit or district court, in any civil action, at law or in equity, shall be reviewed in the Supreme Court on writ of error or appeal, unless the writ of error is brought, or the ap- peal taken within two years after the entry of such judg- ment, decree, or order : Provided, That where a party en- titled to prosecute a writ of error, or to take an appeal, is an infant, insane person, or imprisoned, such writ of error may be prosecuted, or such appeal taken within two years after the judgment, decree, or order, exclusive of the term of such disability. (See sec. 635.) CIVIL RIGHTS. Equal nights under the Laio. [Rev. Stat. 348.] Sec. 1977. All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every other kind, and to no other. (See sec. 563.) 224 LAWS OF THE UNITED STATES Deprivation of Sights. [Rev. Stat. 348.] Sec. 1979. Every person who, under color of any stat- ute, ordinance, regulation, custom, or usage of any state "or territory, subjects, or causes to be subjected, any citi- zen of the United States, or other person within the ju- risdiction thereof, to the deprivation of any rights, privi- leges, or immunities secured by the constitution and laws, shall be liable to the party injured, in an action at law, suit in equity, or other proper proceeding for redress. (See sees. 563, 629.) INTEENAL EEVENTJE. Froeeedings to subject Payment of Tax. [Rev. Stat. 619.] Sec. 3207. In any case where there has been a refusal or neglect to pay any tax, and it has become necessary to seize and sell real estate to satisfy the same, the Com- missioner of Internal Revenue may direct a bill in chan- cery to be filed, in a district or circuit court of the United States, to enforce the lien of the United States for tax upon any real estate, or to subject any real estate owned by the delinquent, or in which he has any right, title, or interest, to the payment of such tax. All persons hav- ing liens u.pon, or claiming any interest in the real estate sought to be subjected as aforesaid, shall be made parties to such proceedings, and be brought into court as pro- vided in other suits in chancery therein. And the said court shall, at the term next after the parties have been duly notified of the proceedings, unless otherwise or- dered by the court, proceed to adjudicate all matters in- volved therein, and finally determine the merits of all claims to, and liens upon the real estate in question, and, in all cases where a claim or interest of the United States therein is established, shall decree a sale of such real es- RELATING TO EQUITY. 225 tate, by the proper officer of the court, and a distribution of the proceeds of such sale according to the findings of the court in respect to the interests of the parties and of the United States. (See sec. 563.) FOREIGN RELATIONS. Jurisdiction — How Exercised and Enforced. [Rev. Stat. 793.] Sec. 4086. Jurisdiction in both criminal and civil mat- ters shall, in all cases, be exercised and enforced in con- formity with the laws of the United States, which are hereby, so far as is necessary to execute such treaties, respectively, and so far as they are suitable to carry the same into effect, extended over all citizens of the United States in those countries, and over all others to the ex- tent that the terms of the treaties, respectively, justify or require. But in all cases where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others in those countries ; and if neither the common law, nor the law of equity or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the ministers in those countries, respectively, shall, by de- crees and regulations, which shall have the force of law, supply such defects and deficiencies. PATENTS AND COPYRIGHTS. Patents obtainable by Bill in Equity. [Rev. Stat. 958,] Sec. 4915. Whenever a patent on application is refused, either by the Commissioner of Patents or by the Supreme Court of the District of Columbia, upon appeal from the 15 226 LAWS OP THE UNITED STATES Commissioner, the applicant may have remedy by bill in equity ; and the court having cognizance thereof, on no- tice to adverse parties and other due proceedings had, majr adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent on the applicant filing in the Patent Office a copy. of the adjudication, and oth- erwise complying with the requirements of law. In all cases where there is no opposing party a copy of the bill shall be served on the Commissioner, and all the ex- penses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not. [See sec. 629.J Suits touching Interfering Patents. [Rev. Stat. 959.] Sec. 4918. Whenever there are interferring patents, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him, by suit in equity against the owners of the interfering patent ; and the court, on notice to adverse paii:ies and other due proceedings had, according to the course of equity, may adjudge and de- clare either of the patents void in whole or in part, or inoperative, or invalid, in any particular part of the TJnited States, according to the interest of the parties in the patent or invention patented. But no such judg- ment or adjudication shall affect the right of any per- son except the parties to the suit and those deriving title under them subsequent to the rendition of such judgment. RELATING TO EQUITY. 227 Power of Courts to grant Injunctions and estimate Damages. Eev. Stat. 960.] Sec. 4921. The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions, according to the course and princi- ples of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable ; and upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be ac- counted for by the defendant, the damages the complain- ant has sustained thereby ; and the court shall assess the same or cause the same to be assessed under its direc- tion. And the court shall have the same power to in- crease such damages, in its discretion, as is given to in- crease the damages found by verdicts in actions in the nature of actions of trespass upon the case. Remedy for Infringement of Trade-marks. [Rev. Stat. 964.] Sec. 4942. Any person who shall reproduce, counter- feit, copy, or imitate any recorded trade-mark, and affix the same to goods of substantially the same descriptive properties and qualities as those referred to in the regis- tration, shall be liable to an action on the case for dam- ages for such wrongful use of such trade-mark, at the suit of the owner thereof; and the party aggrieved shall also have his remedy according to the course of equity to enjoin the wrongful use of his trade-mark and to re- cover compensation therefor, in any court having juris- diction over the person guilty of such wrongful use. 228 LAWS OF THE UNITED STATES BANKEUPTCY. Power of District Courts to Compel Obedience. [Rev. Stat. 970.] Sec. 4975. The district courts of bankruptcy shall have full authority to compel obedience to all orders and decrees passed by them in bankruptcy, by process of con- tempt and other remedial process, to the same extent that the circuit courts now have in any suit pending therein in equity. Appeals to Circuit Court. [Rev. Stat. 970.] Sec. 4980. Appeals may be taken from the district to the circuit courts in all cases in equity, and writs of error from the circuit courts to the district courts may be al- lowed in cases at law, arising under or authorized by this Title, when the debt or damages claimed amount to more than live hundred dollars ; and any supposed cred- itor, whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim, may appeal from the decision of the district court to the circuit court for the same district. Appeals — Sow taken. [Rev. Stat. 970.] Sec. 4981. No appeal shall be allowed in any case fi'om the district to the circuit court unless it is claimed, " and notice given thereof to the clerk of the district court, to be entered with the record of the proceedings, and also to the assignee or creditor, as the case may be, or to the defeated party in equity, within ten days after the entry of the decree or decision appealed from; nor un- less the appellant at the time of claiming the same shall give bond in the manner required in cases of appeals in suits in equity ; nor shall any writ of error be allowed RELATING TO EQUITY. 229 unless the party claiming it shall comply with the pro- visions of law regulating the granting of such writs. Appeal, how Entered. [Rev. Stat. 971.] Sec. 4982. Such appeal shall be entered at the term of the circuit court which shall be held within the district next after the expiration of ten days from the time of claiming the same. Waiver of Appeal. [Rev. Stat. 971. J Sec. 4983. If the appellant, in writing, waives his ap- peal before any decision thereon, proceedings may be had in the district court as if no appeal had been taken. Power of General Superintendence of Circuit Court. [Rev. Stat. 971.] Sec. 4986. The circuit court for each district shall liave a general superintendence and jurisdiction of all cases and questions arising in the district court for such dis- trict when sitting as a court of bankruptcy, whether the powers and jurisdiction of a circuit court have been con- ferred on such district court or not ; and, except when special provision is otherwise made, may, upon bill, pe- tition, or other proper process, of any party aggrieved, hear and determine the case as in a court of equity ; and the powers and jurisdiction hereby granted may be exer- cised either by the court in term time, or, in vacation, by the circuit justice or by the circuit judge of the cir- cuit. What Property vests in Assignee. [Rev. Stat. 981.] Sec. 5046. All property conveyed by the bankrupt in fraud of his creditors ; all rights in equity, choses in ac- tion, patent-rights, and copy-rights ; all debts due him, or any person for his use, and all liens and feecurities 230 LAWS OF THE UNITED STATES therefor ; and all his rights of action for property or es- tate, real or personal, and for any cause of action which he had against any person arising from contract, or from the unlawful taking or detention, or injury to the prop- erty of the bankrupt, and all his rights of redeeming such property or estate, together with the like right, title, power, and authority to sell, manage, dispose of, sue for, and recover or defend the same, as the bankrupt might have had if no assignment had been made, shall, in virtue of the adjudication of bankruptcy, and the ap- pointment of his assignee, but subject to the exceptions stated in the preceding section,^ be at once vested in such ' Sec. 5045. There shall be excepted from the operation of the conveyance the necessary household and kitchen furniture, and such other articles and necessaries of the bankrupt as the assignee shall designate and set apart, having reference to the amount, to the family, condition, and circumstances of the bankrupt, but alto- gether not to exceed in value, in any case, the sum of five hundred dollars ; also the wearing apparel of the bankrupt, and that of his wife and children, and the uniform, arms, and equipments of any person who is or has been a soldier in the militia, or in the service of the United States ; and such other property as now is, or here- after shall be, exempted from attachment, or seizure, or levj' on execution, by the laws of the United States, and such other prop- erty, not included in the foregoing exceptions, as is exempted from levy and sale upon execution, or other process, or order of any court by the laws of the state in which the bankrupt has his domi- cile at the time of the commencement of the proceedir.gs in bank- ruptcy, to an amount allowed by the constitution and laws of each state, as existing in the year eighteen hundred and seventy-one; and such exemptions shall be valid against debts contracted before the adoption and passage of such state constitution and laws, as well as those contracted after the same, and against liens by judgment or decree of any state court ; any decision of any such court ren- dered since the adoption and passage of such constitution and laws to the contrary notwithstanding. These exceptions shall operate as a limitation upon the conveyance of the property of the bankrupt to his assignee ; and in no case shall the property hereby excepted RELATING TO EQUITY. 231 Limiiation to Suits in, by, and against Assignee. [Rev. Stat. 982.] Sec. 5057. !N"o suit, either at law or in equity, shall be maintainable in any coui't between an assignee in bank- ruptcy and a person claiming an adverse interest, touch- ing any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time when an assignee was appointed. pass to the assignee, or the title of the bankrupt thereto be im- paired or affected, by any of the provisions of this Title; and the determination of the assignee in the matter shall, on exception taken, be subject to the final decision of the said court. 232 ORDINANCES OF LOED BACON. ORDINANCES MADE BY THE LORD CHANCELLOR BACOl^, FOR THE BETTER AND MORE REGULAR ADMINISTRATION OP JUSTICE IN THE CHANCEKT, TO BE DAILY ORSERTED, SAVING THE PREROGATIVE OF THE COURT. 1. No decree shall be reversed, altered or explained, being once under the great seal, but upon bill of review ; and no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree, without further examination of matters in fact, or some new matter which hath risen in time after the decree, and not any new proof which might have been used when the decree was made: nevertheless, upon new proof, that is come to light after the decree made, and could not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court, and not otherwise. 2. In case of miscasting, being a matter demonstrative, a decree may be explained, and reconciled by an order, without a bill of review ; not understanding, by miscast- ing, any pretended "misrating or misvaluing, but only error in the auditing or numbering. 3. 'No bill of review shall be admitted, or any other new bill, to change matter decreed, except the decree be first obeyed and performed : as, if it be for land, that the possession be yielded ; if it be for money, that the money be paid : if it be for evidences, that the evidences be brought in ; and so in other cases which stand upon the strength of the decree alone. ORDINANCES OF LORD BACON. 233 4. But if any act be decreed to be done which extin- guisheth the parties' right at the common law, as mak- ing of assurance or release, acknowledging satisfaction, canceling of bonds or evidences, and the like ; those parts of the decree are to be spared until the bill of re- view be determined ; but such sparing is to be warranted by public order made in court. 5. ITo bill of review shall be put in, except the party that prefers it enter into recognizance with sureties for satisfying of costs and damages for the delay, if it be found against him. 6. IsTo decrees shall be made, upon pretense of equity, against the express provision of an act of parliament : nevertheless, if the construction of such act of parliament hath for a time gone one way in general opinion and re- putation, and after, by a later judgment, hath been con- trolled, then relief may be given upon matter of equity, for cases arising before the said judgment, because the subject was in no default. 7. Imprisonment for breach of a decree is in nature of an execution, and therefore the custody ought to be strait, and the party not to have any liberty to go abroad, but by special license of the lord chancellor ; but no close imprisonment is to be, but by express order for willful and extraordinary contempts and disobedience, as hath been used. 8. In case of enormous and obstinate disobedience in breach of a decree, an injunction is to be granted " sub- pena" of a sum ; and upon affidavit, or other sufHcient proof, or persisting in contempt, fines are to be pronounced by the lord chancellor in open court, and the same to be estreated down into the hanaper, if cause be by a special order. 9. In case of a decree made for the possession of land, a writ of execution goes forth ; and if that be disobeyed, then process of contempt according to the course of the 234 ORDINANCES OF LORD BACON. court against the person, unto a commission of rebellion ; and then a sergeant-at-arms by special warrant : and in case the sergeant-at-arms can not find him, or be resisted ; or upon the coming in of the party, and his commitment, if he persist in disobedience, an injunction is to be granted for the possession ; and in case that also be disobeyed, then a commission to the sheriff to put him into posses- sion. 10. Where a party is committed for the breach of a decree, he is not to be enlarged until the decree be fully performed in all things which are to be done pre- sently. But if there be other parts of the decree to be performed at days, at times to come, then he may be enlarged by order of the court upon recognizance, with sureties to be put in for the performance thereof " de futuro," otherwise not. 11. Where causes come to a hearing in court, no decree bindeth any person who was not served with process "ad audiendum judicium," according to the course of the court, or did appear "gratis" in person in court. 12. No decree bindeth any that cometh in "bona fide" by conveyance from the defendant before the bill ex- hibited, and is made no party, neither by bill nor the order ; but where he comes in "pendente lite," and while the suit is in full prosecution, and without anj- color of allowance or privity of the court, tliere regularly the de- cree bindeth; but if there were any intermission of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice. 13. Where causes are dismissed upon full hearing, and the dismission signed by the lord chancellor, sucli causes shall not be retained again, nor new bill exhibited, except it be upon new matter, like to the case of the bill of re- view. 14. In case of all other dismissions, which are not upon ORDINANCES OF LORD BACON. 235 hearing of the cause, if any new bill be brought, the dis- mission is to be pleaded, and after reference and report of the contents of both suits, and consideration taken of the former orders and dismission, the court shall rule the re- taining and dismissing of the new bill, according to justice and nature of the case. 15. All suits grounded upon wills nuncupative, leases parol, or upon long leases that tend to the defeating of the king's tenures, or for the establishing of perpetui- ties, or grounded upon remainders put into the crown to defeat purchasers ; or for brokage or rewards to make marriages ; or for bargains at play and wagers ; or for bargains for offices contrary to the statute of 5 and 6 Ed. VI., or for contracts upon usury or simony, are reg- ularly to be dismissed upon motion, if they be the sole effect of the bill ; and if there be no special circum- stances to move the court to allow their proceedings, and all suits under the value of ten pounds are regularly to be dismissed. V. postea, sees. 58, 60. 16. Dismissions are properly to be prayed and had either upon hearing or upon plea unto the bill, when the cause comes first in court; but dismissions are not to be prayed after the parties have been at charge of examin- ation, except it be upon special cause. 17. If the plaintiff discontinue the prosecution, after all the defendants have answered, above the space of one whole term, the cause is to be dismissed of course Avith- out any motion ; but after replication put in, no cause is to be dismissed without motion and order of the court. 18. Double vexation is not to be admitted ; but if the party sue for the same cause at the common law and in chancery, he is to have a day given to make his election where he will proceed, and in default of making such election to be dismissed. 19. Where causes are removed by special " certiorari " upon a bill containing matter of equity, the plaintiff is, 236 ORDINANCES OF LORD BACON. upon receipt of his writ, to put in bond to prove his sug- gestions within fourteen days after the receipt ; which, if he do not prove, then upon certificate from either of the examiners, presented to the lord chancellor, the cause shall be dismissed with costs, and a " -procedendo" to be granted. 20. ISTo injunction of any nature shall be granted, re- vived, dissolved, or stayed upon any private petition. 21. ISTo injunction to stay suits at the common law shall be granted upon priority of suit only, or upon sur- mise of the plaintiff's bill only; but upon matter con- fessed in tlie defendant's answer, or matter of record, or writing plainly appearing, or when the defendant is in contempt for not answering, or tliat the debt desired to be stayed appeareth to be old, and hath slept long, or the creditor or the debtor hath been dead some good time before the suit brought. 22. "Where the defendant appears not, but sits an at- tachment ; or when he doth appear and departs without answer, and is under attachment for not answering ; or when he taLces oath he can not answer without sight of evidences within the country ; or where after answer he sues at common law by attorney, and absents himself be- yond sea; in these cases an injunction is to be granted for the stay of all suits at the common law, until the party answer or appear in person in court, and the court give further order; but, nevertheless, upon answer put in, if there be no motion made the same term, or the next general seal after the term, to continue the injunc- tion in regard of the insufficiency of the answer put in, or in regard of matter confessed in the answer, then the injunction to die and dissolve without any special order. 23. In the case aforesaid, where an injunction is to be awarded for stay of suits at the common law, if like suit be in the chancery, either by "scire facias," or privilege, or English bill, then the suit is to be stayed by order of ORDINANCES OF LORD BACON. 237 the court, as it is in other courts by injunction, for that the court can not enjoin itself. 24. "Where an injunction hath been obtained for stay- ing of suits, and no prosecution is had for the space of three terms, tlie injunction is to fall of itself without further motion. 25. Where a bill comes in after an arrest at the com- mon law for debt, no injunction shall be granted without bringing the principal money into court, except there appear in the defendant's answer, or by sight of writings, plain matter tending to discharge the debt in equity; but if an injunction be awarded and disobeyed, in that case no money shall be brought in, or deposited, in regard of the contempt. 26. Injunctions for possession are not to be granted before a decree, but where the possession hath continued by the space of three years, before the bill exhibited, and upon the same title; and not upon any title, by lease, or otherwise determined. 27. In case where the defendant sits all the process of contempt, and can not be found by the sergeant-at-arms, or resists the sergeant, or makes rescue, a sequestration shall be granted-of the land in question ; and if the de- fendant render not himself within the year, then an in- junction for the possession. 28. Injunctions against felling of timber, plowing up of ancient pastures, or for the maintaining of enclosures, or the like, shall be granted according to the circum- stances of the case; but not in case where the defendant upon his answer claimeth an estate of inheritance, except it be where he claimeth the land in trust, or upon some other special ground. 29. ISTo sequestration shall be granted but of lands, leases, or goods in question, and not of any other lands or goods not contained in the suits. 30. Where a decree is made for rent to be paid out of 238 ORDINANCES OF LORD BACON. land, or a sum of money to be levied out of the profits of land, there a sequestration of the same lands, being in the defendant's hands, may be granted. 31. "Where the decrees of the provincial council, or of the court of requests, or the queen's court, are by con- tumacy or other means interrupted, there the court of chancery, upon a bill preferred for corroborations of the same jurisdictions, decrees and sentences, shall give remedy. 32. Where any cause comes to a hearing, that hath been formerly decreed in any other of the king's courts at Westminster, such 4ecree shall be first read, and then to proceed to the rest of the evidence on both sides. 33. Suits after judgment maybe admitted according to the ancient custom of the chancery, and the late royal decision of his majesty, of record, after solemn and great deliberation ; but in such suits it is ordered, that bond be put in with good sureties to prove the suggestions of the bill. 34. Decrees upon suits brought after judgment shall contain no words to make void or weaken the judgment, but shall only correct the corrupt conscience of the party, and rule him to make restitution, or perform other acts, according to the equity of the cause. 35. The registers are to be sworn, as hath been lately ordered. 36. If any order shall be made, and the court not in- formed of the last material order formerly made, no benefit shall be taken by such order, as granted by abuse and surreption ; and to that end the registers ought duly to mention the former order in the later. 37. No order shall be explained upon any private peti- tion but in court as they are made, and the register is to set down the orders as they are pronounced by the court, truly, at his peril, without troubling the lord chancellor, by any private attending of him, to explain his meaning ; ORDINANCES OF LORD BACON, 239 and if any explanation be desired, it is to be done by public motion, where the other party may be heard. 38. No draught of anj^ order shall be delivered by the register to either party, without keeping a copy by liira, to the end that if the order be not entered, nevertheless the court may be informed what was formerly done, and not put to new trouble and hearing; and to the end also that knowledge of orders be not kept back too long from either party, but may presently appear at the office. 39. Where a cause hath been debated upon hearing of both parties, and opinion hath been delivered by the court, and, nevertheless, the cause referred to treaty, the registers are not to admit the opinion of the court, in drawing of the order of reference, except the court doth especially declare that it be entered without any opinion either way; in which case, nevertheless, the registers are out of their short note to draw up some more full remembrance of that that passed in court, to inform the court if the cause come back and can not be agreed. 40. The registers, upon sending of their draught unto the counsel of the parties, are not to respect the inter- lineations or alterations of the said counsel, be the said counsel ever so great, farther than to put them in re- membrance of that which was truly delivered in court, and so to conceive the order upon their oath and duty, without any further respect. 41. The registers are to be careful in the penning and drawing up of decrees, and special matters of difficulty and weight; and, therefore, when they present the same to the lord chancellor, they ought to give him under- standing which are such deci'ees of weight, that they naay be I'ead and reviewed before his lordship sign them. 42. The decrees granted at the rolls are to be pre- sented to bis lordship, with the orders whereupon they are drawn, within two or three days after every term. 43. Injunctions for possession, or for stay of suits after 240 ORDINANCES OF LORD BACON. verdict, are to be presented to his lordship, together with the orders whereupon they go forth, that his lordship may take consideration of the order before he sign them. 44. Where any order upon the special nature of the case shall be made against any of these general rules, there the register shall plainly and expressly set down the particulars, reasons, and grounds moving the court to vary from the general use. 45. ITo reference upon demurrer or question touching the jurisdiction of the court shall be made to the mas- ters of the chancery; but such demurrers shall be heard and ruled- in court, or by the lord chancellor himself. 46. E"o order shall be made for the confirming or rati- fying of any report without day first given, by the space of a seven-night at the least, to speak to it in court. 47. ISTo reference shall be made to any masters lof the court, or any other commissioners, to hear and deter- mine, where the cause is gone so far as to examination of witnesses, except it be in special causes of parties near in blood, or of extreme poverty, or by consent and general reference of the estate of the cause, except it be by consent of the parties to be sparingly granted. 48. ISTo report shall be respected in court which ex- ceedeth the warrant of the order of reference. 49. The masters of the court are required not to cer- tify the state of any cause, as if they would make bre- viate of the evidence on both sides, which doth little ease the court, but with some opinion ; or, otherwise, in case they think it too doubtful to give opinion, and therefore make such special certificate, the cause is to go on to a judicial hearing without respect had to the same. 50. Matters of account, unless it be in very weighty causes, are not fit for the court, but to be prepared by reference, with this difference, nevertheless, that the OBDINANCES OP LOKD BACON. 241 cause comes first to a hearing ; and upon the entrance into a hearing, they may receive some direction, and be turned over to have the accounts considered, except both parties, before a hearing, do consent to a reference of the examination of the accounts, to make it more ready for a hearing. 51. The like course to be taken for the examination of court rolls upon customs and copies, which shall not be referred to any one master, but to two masters at the least. 52. No reference to be made of the insufficiency of an answer without showing of some particular point of the defect, and not upon surmise of the insufficiency in gen- eral. 53. Where a trust is confessed by the defendant's an- swer, there needeth no further hearing of the cause, but a reference presently to be made upon the account, and so to go on to hearing of the accounts. 54. In all suits where it shall appear, upon the hearing of the cause, that the plaintiff had not " probabileni causam litigandi," he shall pay unto the defendant his utmost costs, to be assessed by the court. 55. If any bill, answer, replication, or rejoinder, shall be found of an immoderate length, both the party and the counsel under whose hand it passeth shall be fined. 56. If there be contained in any bill, answer, or other pleadings, or any interrogatory, any matter libellous or slanderous against any that is not a party to the suit, or against such as are parties to the suit, upon matters im- pertinent, or in derogation of the settled authorities of any of his majesty's court ; such bills, answers, pleadings, or interrogatories, shall be taken off the file and sup- pressed, and the parties severally punished by commit- ment or ignominy, as shall be thought fit, for the abuse of the court ; and the counselors at law, who. have set 16 242 ORDINANCES OF LORD BACON. their hands, shall likewise receive reproof or punish- ment, if cause be. 57. Demurrers and pleas which tend to .discharge the suit shall be heard first upon every day of orders, that the subject may know whether he shall need further at- tendance or no. 58. A demurrer is properly upon matter defective, con- tained in the bill itself, and no foreign matter ; but a plea is of foreign matter to discharge or stay the suit, as that the cause hath been formerly dismissed, or that the plaintiff is outlawed, or excommunicated; or there is another bill depending for the same cause, or the like ; and such plea maybe put in without oath, in case where the matter of the plea appear upon record ; but if it be anything that doth not appear upon record, the plea must be upon oath. 59. No plea of outlawry shall be allowed without pleading the record " sub pede sigilli;" nor plea of excom- munication, without the seal of the ordinary. 60. "Where any suit appeareth upon the bill to be of the natures which are regularly to be dismissed accord- ing to the fifteenth ordinance, such matter is to be set forth by way of demurrer. 61. "Where an answer shall be certified insufficient, the defendant is to pay costs ; and if a second answer be re- turned insufficient, in the points before certified insuffi- cient, then double costs, and upon the third, treble costs, and upon the fourth, quadruple costs, and then to be committed also until he hath made a perfect answer, and to be examined upon interrogatories touching the points defective in his answer; but if any answer be certified sufficient, the plaintiff is to pay costs. 62. i^o insufficient answer can be taken hold of after replication put in, because it is admitted sufficient by the replication. 63. An answer to a matter charged as the defendant's OKDINANCES OF LORD BACON. 243 own fact must be direct, without saying it is to his re- membrance, or as he believeth, if it be laid down within seven years before; and if the defendant deny the fact, he must traverse it directly, and not by way of negative pregnant; as if a fact be laid to be done with divers cir- cumstances, the defendant may not traverse it literally as it is laid in the bill, but must traverse the point of sub- stance ; so if he be charged with the receipt of one hun- dred pounds, he must traverse that he hath not received a hundred pounds, or any part thereof; and if he have received part, he must set forth what part. 64. If a hearing be prayed upon bill and answer, the answer must be admitted to be true in all points, aud a decree ought not to be made, but upon hearing the an- swer read in court. 05. Where no counsel appears for the defendant at the hearing, and the process appears to have been served, the answer of such defendant is to be read in court. 66. ISTo new matter is to be contained in any replica- tion, except it be to avoid matter set forth in the defend- ant's answer. 67. All copies in chancery shall contain fifteen lines in every sheet thereof, written orderly and unwastefully, unto which shall be subscribed the name of the princi- pal clerk of the ofiace where it is written, or his deputy, for whom he will answer, for which only subscription no fee at all shall be taken. 68. All commissions for examination of witnesses shall be "super interr. inclusis" only, and no return of deposi- tions into the court shall be received but such only as shall be either compromised in one roll, subscribed with the name of the commissioners, or else in divers rolls, whereof each one shall be so subscribed. 69. If both parties join in commission, and upon warning given the defendant bring his commissioners, but produceth no witnesses, nor ministereth interroga- 244 OEDINANCES OF LORD BACON. tories, but after seek a new commission, the same shall not be granted ; but, nevertheless, upon some extraordi- nary excuse of the defendant's default, he may have liberty granted by special order to examine his witnesses in court upon the former interrogatories, giving the plaintiff or his attorney notice that he may examine also if he will. 70. The defendant is not to be examined upon inter- rogatories, except it be in very special cases, by express order of the court, to sift out some fraud or practice pregnantly appearing to the court, or otherwise upon offer of the plaintiff" to be concluded by the answer of the defendant without any liberty to disprove such answer, or to impeach him after a perjury. 71. Decrees in other courts may be read upon hearing without the warrant of any special order ; but no depo- sitions taken in any other court are to be read but by special order ; and regularly the court granteth no order for reading of depositions, except it be between the same parties, and upon the same title and cause of suit. 72. 1^0 examination is to be had of the credit of any witness but by special order, which is sparingly to be granted. 73. Witnesses shall not be examined " in perpetuam rei memoriam," except it be on the ground of a bill first put in, an answer thereunto made, and the defendant or his attorney made acquainted with the names of the wit- nesses that the plaintiff" would have examined, and so publication to be of such witnesses ; and this restraint nevertheless, that no benefit shall be taken of the depo- sitions of such witnesses, in case they may be brought " viva voce" upon the trial, but only to be used in case of death before the trial, or age, or impotency, or ab- sence out of the realm at the trial. 74. 'No witnesses shall be examined after publication, except it be by consent or by special order, " ad informan- OKDINANCES OP LORD BACON. 245 dam conscientiam judiciis," and then to be brought, close sealed, up to the court to peruse or publish, as the court shall think good. 75. No affidavit shall be taken or admitted by any master of the chancery tending to the proof or disproof of the title or matter in question, or touching the merits of the cause ; neither shall any such matter be colorably inserted in any affidavit for serving of process. 76. ISTo affidavit shall be taken against affidavit, as far as the masters of chancery can have knowledge ; and if any suck be taken, the latter affidavit shall not be used nor read in court. 77. In case of contempt grounded upon force or ill words upon serving of process, or upon words of scandal of the court proved by affidavit, the party is forthwith to stand committed; but, for other contempts against the orders or decrees of the court, an attachment goes forth : first, upon an affidavit made, and then the party is to be examined upon interrogatories, and his examina- tion referred; and if, upon his examination, he confess matter of contempt, he is to be committed ; if not, the adverse party may examine witnesses to prove the con- tempt ; and, therefore if the contempt appear, the party is to be committed ; but, if not, or if the party that pur- sues the contempt do fail in putting in interrogatories, or other prosecution, or fail in the proof of the contempt, then the party charged with the contempt is to be dis- charged with good costs. 78. They that are in contempt, specially so far as pro- clamation of rebellion, are not to be heai-d, neither in that suit, nor any other, except the court of special grace suspend the contempt. 79. Imprisonment upon contempt formatters past, may be discharged of grace after sufficient punishment or otherwise dispensed with ; but, if the imprisonment be for not performance of any order of the court in force. 246 ORDINANCES OF LORD BACON. they ought not to be discharged except they first obey, but the contempt may be suspended for a time. 80. Injunctions, sequestration, dismissions, retainers upon dismissions, or final orders, are not to be granted upon petitions. 81. No former order made in court is to be altered, crossed, or explained upon any petition; but such orders may be stayed upon petition for a small stay, until the matter may be moved in court. 82. No commission for examination of witnesses shall be discharged, nor no examinations or depositions shall be suppressed upon petition, except it be upon point of course of the court first referred to the clerks, and cer- tificate thereupon. 83. 'No demurrer shall be overruled upon petition. 84. No " scire facias " shall be awarded upon recogni- zances not enrolled, nor upon recognizances enrolled, un- less it be upon examination of the record with the writ; nor no recognizance shall be enrolled after the year, ex- cept it be upon special order from the lord chancellor. 85. No writ of" ne exeat regnum" prohibition, consul- tation, statute of Northampton," certiorari" special, ^^pro- cedendo " special, or " certiorari " or '■'■procedendo " general, more than once in the same cause; " habeas corpus," or " corpus cum causa, vi laica removenda," or restitution thereupon, " de coronatore et viridario eUgendo," in case of amoving "de homine repleg. assiz." or special patent, " de hallivo amovena', certiorari ouper prcesentationibus fact, co- ram commissariis sewar'," or " ad quod dampnum," shall pass without warrant under the lord chancellor's hand, and signed by him, save such writs " ad quod dampnum," as shall be signed by Master Attorney. 86. Writs of privilege are to be reduced to a better rule, both for the number of persons that shall be priv- ileged, and for the case of the privilege ; and as for the number, it shall be set down by schedule ; for the case, it ORDINANCES OF LORD BACON. 247 is to be understood, that besides persons privileged as attendants upon the court, suitors and witnesses are only to have privilege " eundo, redeundo, et morando," for their necessary attendance, and not otherwise ; and that such writ of privilege dischargeth only an arrest upon the first process, but yet, whereat such times of necessary attend- ance the party is taken in execution, it is a contempt to the court, and accordingly to be punished. 87. !N"o " suppUcavit" fov the good behavior shall be granted, but upon articles grounded upon the oath of two at the least, or certificate upon any one justice of assize, or two justices of the peace, with affidavit that it is their hands, or by order of the Star Chamber, or chan- cery, or other of the king's courts. 88. No recognizance of the good behavior, or the peace, taken in the country, and certified into the petty-bag, shall be filed in the year without warrant from the lord chancellor. 89. Writs of " ne exeat regnum " are properly to be granted according to the suggestion of the writ, in re- spect of attempts prejudicial to the king and state, in which case the lord chancellor will grant them upon prayer of any of the principal secretaries without cause showing, or upon such information as his lordship shall think of weight ; but otherwise also they may be granted, according to the practice of long time used, in case of interlopers in trade, great bankrupts, in whose estate many subjects are interested, or other cases that concern multitudes of the king's subjects, also in cases of duels, and divers others. 90. All writs, certificates, and whatsoever other pro- cess " ret. coram. Bege in Cane." shall be brought into the chapel of the rolls, within convenient time after the re- turn thereof, and shall be there filed upon their proper files and bundles as they ought to be ; except the deposi- tions of witnesses, which may remain with any of the 248 OEDINAITCES OF LOKD BACON. six clerks by the space of one year next after the cause shall be determined by decree, or otherwise be dismissed. 91. All injunctions shall be enrolled, or the transcript filed, to the end that, if occasion be, the court may take order to award writs of " scire facias " thereupon, as in ancient time hath been used. 92. All days given by the court to sheriiFs to return their writs, or bring in their prisoners upon writs of priv- ilege, or otherwise between party and party, shall be filed, either in the register's office, or in the petty -bag respect- ively; and all recognizances, taken to the king's use or unto the court, shall be duly enrolled in convenient time with the clerks of the enrollment, and calendars made of them, and the calendars every Michaelmas term to be presented to the lord chancellor. 93. In case of suits upon the commission for charitable uses, to avoid charge, there shall need no bill, but only exceptions to the decree, an answer forthwith to be made thereunto ; and thereupon, and upon sight of the inqui- sition, and the decree brought unto the lord chancellor by the clerk of the petty -bag, his lordship, upon perusal thereof, will give order under his hand for an absolute decree to be drawn up. 94. Upon suit for the commission of sewers, the names of those that are desired to be commissioners are to be presented to the lord chancellor in writing ; then his lordship will send the name of some privy counselor, lieutenant of the shire, or justices of assize, being resi- dent in the parts for which the commission is prayed, to consider of them, that they be not put in for private re- spects ; and upon the return of such opinion, his lordship will give further order for the commission to pass. 95. No new commission of sewers shall be granted while the first is in force, except it be upon discovery of abuse or fault in the first commissioners, or otherwise upon some great or weighty ground. ORDINANCES OF LORD BACON. 249 96. No commission of bankrupt shall be granted but upon petition first exhibited to the lord chancellor, to- gether with names presented, of which his lordship will take consideration, and always mingle some learned in the law with the rest; yet so as care be taken that the same parties be not too often used in commissions ; and likewise care is to be taken.that bond with good security be entered into, in £200 at least, to prove him a bankrupt. 97. No commission of delegates in any cause of weight shall be awarded, but upon petition preferred to the lord chancellor, who will name the commissioners himself, to the end they may be persons of convenient quality, hav- ing regard to the weight of the cause and the dignity of the court from whence the appeal is. 98. Any man shall be admitted to defend " in forma pauperis," upon oath, but for plaintifi's they are ordinarily to be referred to the courts of request, or to the provin- cial councils, if the case arise in those jurisdictions, or to some gentlemen in the country, except it be in some special cases of commiseration, or potency of the adverse party. 99. Licenses to collect for losses by fire or water are not to be granted, but upon good certificate ; and not for decays, or suretyship, or debt, or any other casualties whatsoever, and they are rarely to be renewed ; and they are to be directed ever unto the county where the loss did arise, if it were by fire, and the counties that abut upon it, as the case shall require ; and if it were by sea, then unto the county where the port is from whence the ship M'ent, and to some sea-counties adjoining. 100. No exemplification shall be made of letters patent, " inter alia," with omission of the general words ; nor of records made void or canceled ; nor of the decrees of this court not enrolled ; nor of depositions by parcel and frac- tions, omitting the residue of the depositions in court, to which the hand of the examiner is not subscribed ; nor 250 ORDINANCES OF LORD BACON. the records of the court not being enrolled or filed ; nor of records of any other court, before the same be duly certified to this court, and orderly filed here ; nor of any records upon the sight and examination of any copy in paper, but upon sight and examination of the original. 101. And because time and experience may discover some of these rules to he inconvenient, and some other to be fit to be added; therefore his lordship intendeth in any such case from time to time to publish any such re- vocations or additions. INDEX. ABATEMENT— When abatement of a suit takes place, and how re- vived, 134 Where the interest transmitted may be contested, 136 ACCOUNT— Why matters of account cognizable in equity, [note] 37 " 37 ACCIDENT— When cognizable in equity, 37 AFFIDAVIT— When necessary to be annexed to a bill, ... 51 tl u (t (C tt ^ 'JQ " " " " " . . ' . 77 Form of, 64 AGREEMENTS— Equity may decree the specific performance of, . 36 AMENDMENTS- Liberality of courts of equity in allowing, . . 124 When necessary, " . . 124 When bill may be amended as of course, . . 125 What must be stated in an amended bill, . . 125 Eule as to permitting amendments of answers, . 125 AN S WEE— In what cases necessary, Ill Nature of an answer, Ill Parts of an answer, Ill Defendant must answer fully, if at all, . . Ill Matters which a defendant can not be required to an- swer. Ill (251) 252 INDEX. 172 176 174 174 175 175 Form of an answer, 112 Titles of answers, 113 Commencements of answer, 114 Conclusions of answer, 114 When answer must be sworn to by defendant, . 115 How answer of a coi-poration is put in, . . 115 How an infant answers, 115 Maj' put in a new answer when he becomes of age, 115 How a married woman answers, .... 115 Amendment of answer, see Amendment. When answer not necessary to a bill of review, Answer of the respondent in an appeal, Insufficiency of answer, see Exceptions to Answee. Mode of taking answer, see Commission ; Examiner. appeal- To what tribunal appeals from the chancellor allowed. When allowed for the first time, .... No writ necessary in cases of, ... . Foundation of this rule, Hight of appeal In England depends upon enrollment of decree, [nofe] 175 Extends to interlocutory as well as final decrees, 175 In United States only extends to final decrees, . 175 An appeal does not of itself suspend proceedings in England, 175 Eule otherwise, generally, in America, . . 175 Form of a petition for appeal, .... 175 Form of respondent's answer, . . . . 176 Course of proceedings on, 177 No new evidence can be admitted on, . . . 177 Efi'ect of decree upon hearing of, . . . . 177 APPEAEANCE— Definition of, 85 Ancient form of, [note] 85 Mode of compelling an appearance, ... 86 When appearance may be dispensed with, . . 86 Case illustrating the chain of process to compel an ap- pearance, [note] 93 INDEX. 253 ARTICLES— Form of articles of exception to the credit of a wit- ness, 146 ATTACHMENT— Nature and use of the process of attachment, . 87 Form of an attachment, . . . . 87 How it differs from a capias at common law, . [nofe] 87 To what it answers in the civil law, . . 87 Is not executed upon the persons of peers or in- fants, Inoteli 88 The return of an attachment, .... 88 ATTACHMENT WITH PEOCLAMATIONS— "When required, 88 Form of, 89 ATTOENEYS— Historical account of the ancient mode of appearance by, ....... Inote] 85 BAILMENTS— In cases of, bill of interpleader does not lie in equity [note'] 70 BILL IN EQUITY— Nature of, 40 Answers to a declaration at common law, or libel at the civil law, . 40 How it differs from an information, . . 40 Form of an ancient bill, .... [noife] 40 Historical accounts of ancient bills, . .. [nofe] 41 By whom it may be filed, .... 42 In case of infant or married woman, it may be filed by next friend, 42 In case of idiot or lunatic by committee, . . 42 BILLS OF EQUITY, DIVISION OP— Distinction between original bills and bills not original, 42 Original bills divided into such as pray relief and such as do not, . ...... 42 Form of a bill in equity, by what determined, . 43 Is constituted of nine distinct parts, ... 43 To whom it should be addressed, ... 43 254 INDEX. Form of address, What should be contained in the introduction Form of, Description of the parties, .... Object of this, . Averment where suit is in the federal courts, What should be contained in the premises, Form of, Narrative of the complainant. Deeds should not be set forth in hcec verba, . Circumstances which must be averred with certainty. What is contained in the charge of confederacy, Form of, Insertion of this charge unnecessary, Origin of the practice, ..... What is contained in the charging part, Form of, ........ Use of this part of the bill, .... Origin and recent introduction of, ... Eule of the Supreme Court as to insertion of, What is contained in the averment of jurisdiction, Form of, Object of this averment, . . . . ■ It is in all cases unnecessary, .... What is contained in the interrogating part, . Form of, What must bo answered under general interrogatories, Use of specific interrogatories, .... Provision of Supreme Court in reference to. What must be contained in the prayer for relief. Form of, Difference between the prayer for general and special relief, ......... What is embraced by prayer for general relief. When prayer for specific relief necessary, Safest practice is to include both. What is contained in the prayer of process, Form of, Eules of SuiDreme Court in reference to, 51 43 51 43 43 43 44 51 44 44 44 44 52 44 44 45 53 45 45 45 45 53 45 46 46,47 54 46 4G 47 47 55 47 47 47 48 41) 5(J 48 48 INDEX. 255 Persons not considered parties to a suit in England unless process is paid against them, ... 48 Of parties to a bill in equity, see Parties. Bill must be signed by counsel, .... 50 Bills formerly perused by court before they were filed, 50 Scandalous or irrelevant matter expunged, . . 51 When a bill must be accompanied by affidavit, . 51 See Affidavit. Form of an original bill, ..... 51 Form of an original bill framed according to the rules of the Supreme Court, ..... 56 Commencement of bills, , . 59 Prayers of bills, 60, 64 Form of bill to foreclose a mortgage, ... 65 G-eneral observations on, .... [note'] 65 Form of a bLl for specific performance, ... 66 Form of a bill for a settlement and receiver between partners, . ....... 68 See Intekpleadee ; Ceetiobari; Testimony; Discov- ekt; Supplemental Bill; Eevivoe; Eeview; Cross-bill. Bill to impeach a decree of fraud, .... 172 When proper, ....... 172 Frame of, 172 Bills to carry a decree into execution, . . 173 When necessary, ....... 173 BAE. See Pleas. CAVEAT— Object of, to prevent the enrollment of a decree, 163 CEETIOEAEI, BILL OF— Object of, ...... 73 Statements and frame of, . . . . 73 Prays no subpena, and why, . . . .73 Proceedings on, ..... 74 Conclusion of, . . . . . .74 Form of the writ of certiorari, ... 74 CHANCELLOE— Historical sketch of his office. . [notes'] 27 and 31 256 INDEX. CHANCEEY— Eise and progress of its equitable jurisdiction, . 25 8Ijetch of the same by Sir James Macintosh, [note] 31 Historical notice of the Chancellors, . . .30 Matters cognizable in the court, . . ^ 32 to 39 Distribution of its jurisdiction between various courts in England and the United States, . . [note] 38 CIVIL LAW— Origin of its introduction into Courts of Equity, . 37 COMMISSION OE REBELLION— When necessary, ..... 89 Reason of its being directed to commissioners, [note] 89 COMMISSION TO TAKE ANSWER^ Form of, ...... 118 COMMISSION TO EXAMINE WITNESSES— When necessary, ..... 139 Form of, . . . . . .140 CONTEMPT— Description of the several processes of, . . 86 CORPORATION— Prayer of process against, .... 48 Mode of compelling appearance, . . .94 COUNSEL— Required to sign bill, .... 50 CROSS BILL— When necessary for the purpose of defense, . .115 May be exhibited for relief as well as discovery, 115 When it is necessary to allege any ground of equitable jurisdiction, . . . . .116 To what analogous in the canon law, . . . 116 Form of, ...... 116 DECREE— When rendered ^ro con/esso, . . . .86 Form of a decree pro confesso, . . [note] 156 Proper course in rendering such decree, . . 154 Difference between a final and interlocutory de- cree ...... 152, 174 INDEX. 257 Definition of a decree, .... 152 Decrees which, though final in their nature, require further action, ..... 154 Nature of a decree nisi, .... 154 Method of taking and recording decree, . [note] 154 Formal parts of a decree, .... 155 Form of a decree by default, . . . .157 Form of a decree for an account, . . . 157 Form of a decree for a specific performance, . . 158 Form of a decree in a creditor's suit, . . 159 Form of a decree of interpleader, . . . 159 Decree of sale on foreclosure of a mortgage, . ] 60 Mode of enrolling a decree, and time within which it may be done, 162 Practice in the United States . . . [note] 162 Form of a decree upon a re-hearing, . . . 164 DEDIMUS POTESTATBM— See Commission to take An- swer. DEFENSE— Various kinds of, to a suit inequity, .... 98 Modern doctrine as to the extent to which they may be united in the same bill, 98 Must be signed by counsel, 106 DEMUHREE— When it is a proper mode of defense, . . . 100 Nature and use of, 100 Effect of the allowance of a demurrer to the whole bill, 100 What should be stated in a demurrer, . . . 100 Any number of causes may be assigned for a de- murrer, 101 Demurrer may be either to the relief or the discovery, or both, 101 Eule in England when a party entitled to discovery asks for relief also, 101 American rule, ....... 101 Grounds of demurrer to bills for relief, . . . 101 258 INDEX. 1. That the case in the bill is not one fit for eqaiL- able cognizance, ]01 2. That the plaintiff is under a disability to sue, . 102 3. That the plaintiff has no interest in the suit, 102 4. The want of privity between the parties, . 102 5. That the defendant has no interest in the subject, 102 6. The want of necessary parties, . . . 102 7. The multifariousness of the bill, . . .102 Grounds of demurrer to bills for discovery, . 103 1. That the case is not one in which equity will compel a discovery, 103 2. That the jDlaintiff has no interest on which to found a right to a discovery, . . . 103 3. That the defendant may be a witness, . . 103 4. That the discovery would be immaterial, . 103 Form of a general demurrer, ..... 103 Origin of the protestation clause in demurrers, [wofe] 103 Form of a demurrer for want of privity, . . 104 " " " for multifariousness, . . 104 " " " for want of parties, . . 105 Demurerr to a bill of discovery, .... 105 Demurrer coupled with answer, .... 106 Demurrer is not sworn to, .... . 106 But can not be filed in courts of United States, save on certificate of counsel, ..... 106 When usual mode of answer to bills of review, . 172 DEPOSITIONS— When taken by examiner, and when taken by com- missioners, 139 See Commission. Form of interrogatories, 141 Form in which depositions are taken by commission, 143 Form in which taken before an examiner, . . 144 Manner in which depositions are returned, . . 147 What is meant by passing publication of depositions, 145 DISCLAIMBE— Definition of, 98 Will protect a mere witness from answering, . . 98 INDEX. 259 But can not avoid a liability, .... 98 Form of simple disclaimer, 98 Can scarcely ever be put in without answer, l_note] 99 Form of an answer in connection with, . [note] 99 DISTEINGAS— For what purpose used in equity, .... 94 Form of, 95 DISCOVEEY, BILL OF— What is emphatically so called, .... 76 Is in general ancillary to another jurisdiction, . 76 What should be stated in a bill of discovery, . . 76 When it is necessary to aver that a discovery is essen- tial to maintain a suit at law, .... 76 Cases in which an affidavit must accompany the bill, 76 Form of a bill of discovery, 77 DOWER— W liy assignable in equity, . . . [note] 36 EXAMINATIOlsr OF WITJSIESSES— And examiner, ....... 139 See Commission ; Depositions. ENEOLLMBNT OF DECEBE. See Decree. EXCEPTION TO ANSWEE— In what cases they may be preferred, . . . 120 This proceeding peculiar to courts of equity, . 120 How drawn and what stated in, ... . 121 Can not be taken to answer of infant, . . 121 When answer is open to exception, . . . 121 Form of exceptions to answer, .... 121 Within what time to be filed, 122 How validity of exceptions to be determined, , 122 Deference to a master, 122 Form of exceptions to his report, . . . 122 Exceptions to credit of witnesses, .... 146 EXECUTION OF DECEBES— Bill to carry decree into execution, . . . 173 Ancient mode of enforcing decrees, . [note] 166 General principle in reference to, ... 166 Mode where decree is in personam, .... 166 200 INDEX. "Where decree is in rem, 167 Form of ii writ of execution, 167 Form of a writ of injunction to deliver land, . 168 FEAUD— When cognizable in equity, ..... 37 HEAEING OF A CAUSE— Cause may be set down for hearing by either party, 148 Use of subpena to hear judgment, . . . 148 Form of, . 148 "When returnable, and meaning of " days of grace," 149 Course of proceeding at the hearing, . . . 149 "Where the defendant fails to attend, . . . 150 "Where the plaintiff fails to attend, . . [nofe] 150 infoematio:nt— How it differs from a bill, 78 Its form, ........ 78 "When the name of the relator is inserted, ,. . 79 INJUNCTION— Must be especially asked for in bill, when required, 48 Praj'cr for, .CO Form of a writ, [note] 60 Injunction for performance of decree, . . . 168 inteeeogatoeibs foe examination op witnesses- How to be framed, 141 Form of, . . . ' 141 INTEELOCUTOEY BILLS— Are such as arise between the institution and final de- termination of a suit, ...... 133 See Supplemental Bill ; Eevivor, Bill of. INTEELOCUTOEY PEOCEEDINGS— Nature of, 124 May be made hy motion or petition, . . . 124 Address to the discretion of the court, . . . 124 When to be supported by affidavit, . . . 124 See Amendment; Eeceiver; Eeference to a Master; Payment of Money into Court. INDEX. 261 INTBEPLEADBR, BILL OF— In what case and for what purpose exhibited, Afl3.davit must accompany the bill denying collusion, An offer must be made to bring money due into court, "What must be shown by the bill. Plaintiff only entitled to a decree that the bill was properlj- filed, . . . , Subsequent course of proceeding. Form of a bill of interpleader, ISSUE— What it is, and whence borrowed. How framed, .... Proceedings on, .... JURISDICTION OF EQUITY— General description of, . . . Lord Redesdalo's classification, . . . [?iofe]_ How a question of jurisdiction can be determined, KING— Originally presided in the Aula Regis, LABEL— What it is, ........ Upon whom it may be served, .... LBTIER MISSIVE- Origin of the practice of sending, . . [note] To whom it is sent, ....... Form of, Is not considered a process, . . : . . MESSENGER— When one is employed in-equity, .... NE EXEAT REGNO— Form of praj'er for one, Form of the writ, Must be specially asked for in bill, .... ORDERS— Forjn of, for production of papers. Form of, that plaintiff elect, ..... Form of, to pay money into court, Form of order of reference to master, 70 70 71 71 71 71 71 152 153 153 34 35 26 82 82 83 82 83 83 63 63 48 127 127 ,127 128 262 INDEX. PARTIES— Those only are considered such in England against whom process is prayed, ..... Eule in New York, General rule as to who must be, .... G-rounds of exception to this rule, 1. Where bill seeks a discovery of them, 2. Where party is out of the jurisdiction, 3. Where the parties are very numerous, Subdivision of this class of cases. Consequence of a failure to make the proper parties, Mode of making the objection, .... PAYME>^T OF MONEY INTO COURT— Cases in which this order will be made. Disposition of such fund by the court, PETITION— For rehearing a cause in equity, .... What must be stated in it, . PLEAS— Definition, object, and form of, Several kinds of, ..... 1. To the jurisdiction, nature of, What must be shown in, ... 2. To the jjcrson, a-v^erments of, 3. To the frame of the bill, . 4. Pleas in bar, .... Bar by statute, by record, or by matter in pais, The pendency of a suit at law not a good plea to the bill, [note] 108 Form of, 109 Pendency of another bill, 110 Plea of infancy to bill exhibited without ^rocAem ami, 110 Plea of coverture of plaintiff, Mode of objecting to, .... Amendment of, .... . PRAYERS OF BILLS— General observations upon, 48 48 49 49 49 49 49 49 50 50 126 126 164 163 106 107 107 108 108 108 108 107 110 110 111 47 INDEX. 263. Form to restrain proceedings at law, and for an in- juncti(5n, 60 For an account of the rents and profits of real estate, CI For an account of money had and received, . . 62 For the production of deeds and papers, . . 62 For an account of personal estate, .... 62 For the writ of ne exeat, 63 Form of prayers in suit against a State or the United States, 64 Form in suits aglffnst a corporation, ... 64 PEOCBSS— G-eneral observations upon the prayer for, . . 48 Chain of process illustrated, . . . \note'] 93 EECBIVER— Cases in which the court will appoint one, . . 125 It must appear by affidavit that the fund or property is in danger, 125 EEFEEENCE TO A MASTEE— Cases in which this is usual, 126 Advantages of it to a chancellor, . . . 126 Powers of the master under the commission, . . 126 EEHEAEING— Manner in which it is obtained in equity, . . 163 Proceedings ujDon the rehearing, . . . 164 See Petition. EEJOnSTDEE— Nature of, 131 Not in general necessary, 131 Form of, . . . ' 131 EEPLICATION— Difference between a general and special replication, 129 Form of a general replication 130 Form of a special replication, 130 Proceedings after replication, .... 131 EEPOET OF A MASTEE— Mode of taking exceptions to, ... . 122 264 INDEX. EETUEiSr— Eeturn day of a subpena to appear, . . *[wo/e] 81 Keturn day of a subpena to hear judgment, . . 149 EEVIEW— Bill of, ■when projDer, ...... 170 Form of the bill of review, .... [nofe] 171 Period within which it may be brought, . . 170 What must be recited in, .... . 171 Proceedings upon, . . . . ,^* . • . 170 EBVIVOR— Bill of, when necessary, 134 Familiar cases of, 134 Form of, 135 How it differs from a bill in the nature of a bill of re- vivor, 136 Form of statement in latter bill, .... 137 SBQUESTEATION— In what cases awarded in equity, ... 91 History of its introduction, . . . [woie] 91 Form of, 92 Manner in which it is served, ..... 92 Consequence of awarding a sequestration against a corporation, ........ 95 Used to compel performance of a decree, . . 167 SERGEAE T - AT- AEMS— Duties of this officer, 91 SEEVICE. See Subpena. SUBPENA— Origin of, and history of its introduction, . . 80 Form of, to appear and answer, .... 80 Number of defendants introduced in, . |[note] 81 Eeturn day of, . . • . . . [note] 81 Mode of serving the subpena, .... 84 Discussion of the question whether subpena may be served in a foreign country, . . [note] 84 Subpena to hear judgment, form of, ... 148 Form of subpena to show cause, . . ■ . . 150 Subpena to rejoin, object of, 131 INDEX. 2b5 SUPPLEMENTAL BILL— When, and for what purpose used, . . 133 Form of, so far as it is peculiar, .... 135 Difference between, and an original bill in the nature of a supplemental bill, .... 137 Statement in the latter bill, .... 137 Difference between it and an original bill in the nature of a bill of revivor, ..... 137 TESTIMONY, BILL TO PEEPETUATE— When it is necessary, 75 Conformable to the usage of the Eoman law, . 75 Form and averments of, 75 WITNESSES— Exceptions to credit of, how taken, . [note] 1-16