Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY v,r- «»^^ Cornell University Library KF8855.S88 1865 Commentaries on equity pleadings :and th 3 1924 020 099 812 ajnrnpU Cam i^rlynol Eibratg 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/cu31924020099812 TO THE HONORABLE JEREMIAH MASON, LL. D. Sir, I ESTEEM it a great privilege to have the. opportunity of dedicat- ing this work to you. Few circumstances in my life could be more grateful, than those which enable me to inscribe on the pages, which contain my own imperfect juridical labors, the memorials of my private friendships, as well as the avowals of my reverence for tlie great, the good, and the wise. Your own enviable distinction, so long held in the first rank of the profession, and supported by an ability and depth and variety of learning, which have had few equals, and to which no one can bear a more prompt and willing testimony than myself, would alone entitle you to a far higher trib- ute, than any I can bestow. I well know that I speak but the common voice of the profession on this subject ; for they have well understood the vigor and the weight of that lucid argumentation, which has spoken in language for the cause, and not merely for its ornament : Neque id ipsum, tam ieporis caus^, quam ponderis. But I confess myself more anxious to be allowed to consider this dedication, as a tribute to your exalted private worth, spotless in- tegrity, and inflexible public principles, as well as a free expression of my own gratitude for your uniform friendship ; — a friendship which commenced with my first entrance among the Bar, in which you were then the acknowledged leader (a period, when the value of such unexpected kindness could not but be deeply felt, and fully appreciated,) and which has continued, undiminished, up to the present hour. Such reminiscences are to me more precious than any earthly honors. .They fade not with the breath of popular ap- plause ; and they cheer those hours, which, as age approaches, are naturally devoted to reflections upon the past, for instruction, as well as for consolation. I am, with the highest respect, your obliged friend, JOSEPH STORY. Camrridge, January 1, 1838. PREFACE The present work constitutes an appropriate sequel to my former work on Equity Jurisprudence. In that, my endeavor was to bring together the leading principles of that highly important branch of the science of Law ; in this, the principles there devel- oped are connected with the forms of the proceedings, by which rights are vindicated, and wrongs are redressed, in Courts of Equity. The principles are thus seen in their actual practical ap- plications ; and many limitations of them, otherwise unobserved, wjll be easily perceived and constantly illustrated. As the present work is confessedly one of a purely technical character, and many of the rules are either of an arbitrary nature, or of a conventional form, it is not easy, in a great variety of in- stances, to find the exact reasons on which they are built, or by which they are sustained. For the purpose of order, and just method, and reasonable certainty, and simplicity, in the proceed- ings of Courts of Justice, it seems indispensable, that there should be some prescribed forms, in which the allegations and statements of the grievances complained of, and the matters of defence, should be set forth, and the times when, and the modes by which, they are to be insisted on, should be established. Otherwise, every suit would be involved in endless perplexity or confusion ; and it might be difficult, if not impracticable, to ascertain what in reality con- stituted the true points of the plaintiff's claim, or of the defend- ant's defence. Hence, in every system designed for the adminis- tration of public justice", there will be found to have been some regular modes prescribed for the ordinary cases put in litigation ; and from time to time, as new cases have arisen of an unusual and extraordinary character, the old forms have been modified,' or new forms have been introduced. Since there must be some rules, the t viii PEEFACE. choice is"often a mere measuring cast between one regulation and another ; and yet that choice must be made ; and, when made, the regulation must be uniformly acted on. The surprise, therefore, is not that we should sometimes be unable to assign a satisfactory reason for one particular regulation, in preference to another; but it rather is, that so many regulations can be expounded upon grounds of general convenience, and vindicated as reasonable and just in themselves. I am aware, that in a treatise so purely technical, there is little room for anything more than dry details, and clear and accurate statements. The subject forbids ornament ; and it must be dis- cussed with a close and almost servile obedience to authority. When, however, a doctrine seemed to me to require 'some qualifi- cation, or to admit of a fuller exposition, which might be usefully brought before the attentive reader, I'have endeavored to make the notes the vehicle, either of criticism or of information. I have quoted passages from leading authorities on particular points, with a view to convey to the student some views, which a brief text would scarcely suggest to his thoughts. These quotations will be found, as I trust, useful in explaining difficulties, and in pronlfct- ing accurate inquiries, and in furnishing hints for future practice. This has not been the least laborious part of the work. The structure of every Treatise on the subject of Equity Plead- ings, must be essentially founded on Lord Redesdale's admirable work on Pleadings in the Court of Chancery. That Treatise has been well described by Lord Eldon to be " a wonderful effort to collect, what is to be deduced from authorities, speaking so little what is clear. And the surprise is not from the difficulty of under- standing all he has said ; but that so much can be understood." ^ Sir Thomas Plumer, in his masterly judgment in a cause of great celebrity, has also said : " To no authority, living or dead, could reference be had with more propriety for correct information re- specting the principles, by which Courts of Equity are governed, than to one, whose knowledge and experience have enabled him, fifty years ago, to reduce the whole subject to a system with such a universally acknowledged learning, accuracy, and discrimina- tion, as to have been ever since received by the whole profession as an authoritative standard and, guide. Viventi tibi -prcesentes ' Lord Eldon, Lloyd v. Johnes, 9 Vea. 54. PREFACE. ix largimur honores." ^ The learned Judge and noble author have, since that sentence was pronounced, both passed to the grave ; and we, who survive, feel the truth and value of this tribute, with all the affectionate reverence, which belongs to posthumous praise. Never could the voice of praise come to an author with a higher grace, than from the lips of such eminent men. It is the privileged case ; — Laudari a viris laudatis. I have transferred into my own pages all the most valuable ma- terials of Lord Redesdale's Treatise ; and generally, where I could, in his own language, which I have not the presumption to think I could improve, and from which I have rarely deviated, except to insist upon some qualification, or to maiie his text occasionally more definite and clear. I have also freely used the materials in Mr. Cooper's and Mr. Beames's excellent Treatises on Equity Pleadings, as auxiliaries to that of Lord Redesdale". Each of them is under the same obligations to him as myself, having drawn many of their materials from the same great source. There is one prominent defect in all these treatises, and that is the want of a comprehensive and accurate view of tlie principles, which govern that most intricate and important branch of Equity Pleadings, the subject of tlie proper and necessary Parties to Bills. My aim has been, as far as I could, but perhaps not with entire success, to supply this defect. I had not an opportunity of seeing Mr. Calvert's Treatise on Parties to Bills in Equity, until after my own chapter on the same head had been completed, and the work itself was in the press. Upon a review of his book, I have the con- solation fo find, that I had not overlooked any very important au- thorities bearing on this subject. I have, however, availed myself of his learned researches for a few suggestions, which had not be- fore so closely attracted my attention. In submitting the present volume to the profession, I beg to- re- turn my grateful acknowledgments for the kind manner, in which my former labors have been received ; and to ask an indulgent consideration for that, which is now offered. The task has been one of severe and exhausting effort, scarcely relieved by any con- soling circumstance, except the consciousness of the performance of duty. It has been difficult to keep up a continued attention to the dry details of technical learning in the midst of my other vari- » Cholmondeley v. Clinton, 2 Jac. & Walk. 151. X PREFACE. ous judicial and professorial engagements. At some future day, I hope to find leisure to complete my original design by furnishing an elementary outline of the Practice of Courts of Equity, from the first inception of the cause, through all its various stages, to the execution of its final decree, under the orders of the highest Court of Appeal. Let me in conclusion say to the diligent stu- dent, that a thorough mastery of the science of Equity Pleadings, if not absolutely indispensable to professional success and emi- nence, will, at all events, be found in a very high degree to .pro- mote them. Let him ponder well upon the admonition contained in the language of that great jurist of antiquity, Cicero, — " Sic igitur instructus veniet ad causas ; quarum habebit genera pri- mum ipsa cognita ; erit enim ei perspectum, nihil ambigi posse, in quo non aut res controversiam faciat, aut verba ; res, aut, de vero, aut de recto, aut de nomine ; verba, aut de ambiguo, aut de contrario." ^ Cambridge, January 1, 1838. ^ Cicero, Orator, ch. 34. CONTENTS. Page Index to Cases Cited xv CHAPTER I. Section Introductory Chapter . 1-6 CHAPTER II. Bills in Equity — General Nature and Form . . . . 7-48 CHAPTER III. Bills in Equity — Parties, who have Capacity to sue and be sued 49-71 CHAPTER IV. Proper Parties to Bills 72-238 CHAPTER V. Bills — General Frame of 239-290 CHAPTER VI. Bills of Interpleader and Certiorari 291-298 CHAPTER VII. Bills not praying Relief — Bills to perpetuate Testimony and to take Testimony De Bene Esse, and Bills of Discovery . 299-325 CHAPTER VIII. Bills not Original — Supplemental Bills of Revivor — Cross Bills — Bills of Review — Bills impeaching Decrees . . . 326-432 xii CONTENTS. CHAPTER IX, Section Modes of Defence — Demurrers, Pleas, Answers . . . 433-465 CHAPTER X. Demurrers to Bills of Relief 466-544 a CHAPTER XI. Demurrers to Bills of Discovery ..... 545-610 a CHAPTER XII. Demurrers to Bills not Original ...... 611-646 CHAPTER XIII. Pleas, General Nature and Object of 647-701 CHAPTER XIV. Pleas to Bills of Relief 702-815 a CHAPTER XV. Pleas to Bills of Discovery 816-825 a CHAPTER XVI. Pleas to Bills not Original 826-837 CHAPTER XVII. Disclaimers, General Nature and Objects . .... 838-844 CHAPTER XVIII. Answers, General Nature and Objects 845-876 CHAPTER XIX. Replications and their Consequences .... 877-881 a CHAPTER XX. Amendments and other Incidents of Pleadings . . . . 882-906 INDEX TO CASES CITED. The Eeferences are to the Sections. Section 61 721 269 132 421 306 A. Abbot V. Bayley Abercombrie v. Dupuis Abergavenny v. Abergavenny Abraham v. Hanney Ackland v. Braddick V. Gaisford Adair v. New River Company 77, 78, 94, 96, 99, 116, 118, 120, 123, 133, 134, 162 Adams r. Dowding 343, 346, 352, 615 V. Fisher 572, 859, 859 a V. Holbrook 197 V. Paynter 193, 194 V. Porter 572, 575, 845 V. St. Leger 186, 207 Adderly v. Sparrow 571 Addison v. Walker 271 a, 278 Adlington v. Cann 766, 767 African Company v. Parish 521 Agar V. Regent's Canal Com- pany 568, 846, 853 a, 853 c Aggas V. Pickerell 503, 647 Ainslie v. Medlicott 71 Albretcht v. Sussman 51, 312, 724 Aldrich V. Stephens 427 V. Westbrook 101 Allan V. Allan 301 V. Copelaud 316 Allen V. Houlden 159 V. Knight 207 V. Randolph 665, 797 V. Simons 170 Alsager v. Johnson 514 U.Rowley 178,514,517 Alston V. Jones 361 Ambury v. Jones 316 Amhurst v. King 854 Anderson t!. Counter 179 Anderson w. Wallis 281a Andrews v. Beny 521 V. Cradock 60, 61 V. Hobson 389 Angell V. Angell 303, 304, 307, 309, 312, 315 BQ. PL. b Angell V. Draper V. Haddon Section 257 d 297 a V. Westcombe 316 Angle, ex parte Anonymous V. Davies 213 71 51 V. Gwillim 875 V. Harrison 605, 847, 852 b V. Walford 351 a ApoUon, The 24 Apperly v. Page 136 6 Archibald v. Means 27 Arcot, Nabob of, v. East India Co. 711 Arden v. Arden 813 Armistead v. Durham 248 a Armiiage v. Wadsworth 668, 713, 766 Armstrong v. Pierson 398 a Arnold's case 676, 688 Arnold v. Heaford 676 Ashley v. Sumner 219 a Ashton V. Lord Exeter 574 c Ashurst V. Eyre 171, 180 Aston V. Aston 759 Atherton v. Worth 102 Atkinson v. Henshaw 91 V. Manks 291 Atkyns v. Wright 860 Atlantic Insurance Co. v. Lunar 322 Attorney-General v. Bailiif, &c. of East Retford 856 V. Baliol College 81 V. Mayor of Bristol 8 V. Brown 222, 311, 312, 443,464, 548, 608 V, Burk 40 V. Carmarthen 282 V. Conroy 321 V. Cornthwaite 100 V. Corp. of London 602 a, 855, 858 V. Cradock 271a, 274, 531, 533, 534, 538 V. Cresner 581 V. Currey 591 xii CONTENTS. CHAPTER IX. Section Modes of Defence — Demurrers, Pleas, Answers . . ■ 433-465 CHAPTER X. Demurrers to Bills of Relief 466-544 a CHAPTER XI. Demurrers to Bills of Discovery 545-610 a CHAPTER XII. Demurrers to Bills not Original 611-646 CHAPTER XIII. Pleas, General Nature and Object of 647-701 CHAPTER XIV. Pleas to Bills of Relief 702-815 a CHAPTER XV. Pleas to Bills of Discovery 816-825 a CHAPTER XVI. Pleas to Bills not Original 826-837 CHAPTER XVII. Disclaimers, General Nature and Objects 838-844 CHAPTER XVIII. Answers, General Nature and Objects 845-876 CHAPTER XIX. Replications and their Consequences .... 877-881 a CHAPTER XX. Amendments and other Incidents of Pleadings . . . .882-906 INDEX TO CASES CITED. The References are to the Sections. A. Abbot V. Bayley Abercombrie v. Dupuis Abergavenny v. Abergavenny Abraham v. Hanney Ackland v. Braddick V. Gaisford Section 61 721 269 132 421 -. 306 Adair v. New River Company 77, 78, 94, 96, 99, 116, 118, 120, 123, 133, 134, 162 Adams u. Dowding 343, 346, 352, 615 V. Fisher 572, 859, 859 a V. Holbrook 197 V. Paynter 193, 194 V. Porter 572, 575, 845 V. St. Leger 186, 207 Adderly v. Sparrow 571 Addison v. Walker 271 a, 278 Adlington v. Cann 766, 767 African Company v. Parish 521 Agar V. Regent's Canal Com- pany 568, 846, 853 a, 853 c Aggas V. Pickerell 503, 647 Ainslie v. Medlicott 71 Albretcht v. Sussman 51, 312, 724 Aldrich v. Stephens 427 V. Westbrook 101 Allan V. Allan 301 V. Copelaiid 316 Allen V. Houlden 159 V. Knight 207 V. Randolph 665, 797 V. Simons 170 Alsager v. Johnson 514 U.Rowley 178,514,517 Alston V. Jones 361 Ambury v. Jones 316 Amhurst v. King 854 Anderson w. Counter 179 Anderson v. Wallis 281 o Andrews v. Berry 521 V. Cradock 60, 61 V. Hobson 389 Angell V. Angell 303, 304, 307, 309, 312, 315 EQ. PL. b Angell V. Draper V. Haddon Section 257 d 297 a V. Westcombe 316 Angle, ex parte Anonymous V. Davies 213 71 51 V. Gwillim 875 V. Harrison 605, 847, 852 b V. Walford 351 a ApoUon, The 24 Apperly v. Page 135 6 Archibald u. Means 27 Areot, Nabob of, v. East India Co. 711 Arden v. Arden 813 Armistead v. Durham 248 a Armilage v. Wadsworth 668, 713, 766 Armstrong v. Pierson 398 a Arnold's case 676, 688 Arnold v. Heaford 676 Ashley v. Sumner 219 a Ashton V. Lord Exeter 574 c Ashurst V. Eyre 171, 180 Aston V. Aston 759 Atherton v. Worth 102 Atkinson v. Henshaw 91 V. Manks 291 Atkyns v. Wright 860 Atlantic Insurance Co. v. Lunar 322 Attorney-General v. Bailiff, &c. of East Retford 856 V. Baliol College 81 V. Mayor of Bristol 8 V. Brown 222, 311, 312, 443,464, 548, 608 V. Biirk 40 V. Carmarthen 282 V. Conroy 321 V. Cornthwaite 100 V. Corp. of London 602 a, 855, 858 V. Cradock 271a, 274, 531, 533, 534, 538 V. Cresner 581 V. Currey 691 XIV INDEX TO CASES CITED. Section Attorney-General w. Duplessis 576, 579, 583, 586, 595 V. Foster 211, 350, 377, 379, 384 V. Gleg 40 V. Goldsmith's Co. 282, 530 V. Green 180 V. Heelis 112 V. Jackson 40, 122, 138, 162, 543, 745 V. Jeanes , 40 V. Lucas 579, 599 V. Mer. Tailors' Co. 273, 278 a, 532, 538, 853 a V. Munro 114 V. New River Co. 122 V. Eanther 64 V. Parkhurst 64 V. Poole 286 a, 238, 271 a, 278, 543 V. Ray 306 V. Rees 855 a, 856 V. Reynolds 553, 580 V. Richards 267, 723 V. Ryder 104, 203 V. St. John's College 271, .280, 530, 532, 534 V. Scott 40 V. Shelby 93, 238, 754 V. Sewall 723 V. Sudell 522 V. Sutton 779 V. Talbot 718 V. Tiler 64 V. Turner 415 V. Vernon 49 V. Vivian 8, 40 V. Whorwood 36 V. Woolrich 64 V. Wyburgh 93, 122, 138, 745 a Attwood V. Small 263, 265 a, 853 6 Atwood V. Hawkins 89 Austin V. Chambers 263, 265 a Avery v. Patten ^ 162 Aylwyn v". Bray 544 Ayliffe v. Murray 394 B. Bachelor v. Bean 360 Badeau v. Tylee 294 Bagnal v. Bagnal 333 Bailey v. Inglee 136, 138,221 V. Ryder 262 a Baillie v. Sibbald Bainbridge v. Burton Bainbrigge v. Baddeley Baker v. Brooker V. Bramat V. Harwood V. Holland Section 821 131 a 421 a 452 316 217 343 V. Hellish 443, 459, 460, 462, 464, 608 V. Pritchard 594 V. Rogers 120, 121 V. Whiting 337 a, 756 a Balch V. Wastall 69 Baldwin v. Lawrence 107 V. McKown 614 V. Peach 759, 815 V. P^arl 813 Balguy V. Broadhurst 599 Balls V. Margrave 245 a V. Stoutt 158 a Bally V. Kenrick 853 V. Williams 853 Bampton v. Birchad 323 V. Birchall 387,627,657, 823 Bancroft v. Wentworth 521 Bangs V. Strong , 688 Bank of Georgetown v. Geary 849 Scotland v. Kerr 55 United States v. Beverly 849 a V. White 409 Utica V. Messereau 846, 847 V. Mersereau 601 a Banks v. Parker 258 V. Wilkes 271 Banner v. Jackson 602 Bannister v. Way 181 Banyan v. Mortimer 71 Baptist Association v. Hart 486 Barber v. Barber 452 c, 505 a, 505 b Barclay v. RusseU 470 Barfield v. Kelley 332, 336 Baring v. Nash 165, 255 Barker v. Dacie 312, 453 V. Walters 107, 115 a Barnesley v. Powell 426, 511, 789 Barnett v. Grafton 886 Barrington v. O'Brien 337 o, 393, 414 Barron v. Grillard 519 V. Martin 448 V. Rhinelander 414 Barrs v. Jackson 791 Barry v. Cane 71 Bartlett v. Boyd 538 a Barton v. Jayne 495, 516 Basset v. Nosworthy 395 Bateman v. Margerison 541, 884, 885 V. Willoe 34, 782 Batten v. Barfitt 150, 207 6 INDEX TO CASES CITED. XV _ , ' . , Section Bayley v. Adams 651, 671, 678, 680,754 V. Best 165 V. De Walkiers 875 Beachcroft v. Beachcroft 653 Beall V. Blake 699, 856 V. Taylor 172 Beasley v. Kenyon 214 Beaumont v. Boultbee 40, 801 V. Meredith 82, 94 Beckley v. Dorrington 1 78, 514 Bedell v. Hoffman 290, 297 6 Bedford Charity in re 8 Bedford v. Leigh 100 Bedsole v. Monroe 271 6 Beech t'. CruU 608 Beeching v. Morphew 71 Behrens v. Pauli 780 a V. Sieveking 737, 780 a Bein V. Heath 61 Bell V. Hyde 63, 71 V. Cureton 544 V. Hunt 291 Bellwoodu. Wetherell 574, 662, 824,832 Benfield v. Solomons 495, 630 Bennet v. Honeywood 90, 104, 105 V. Lee 417 V. Vade 42, 254 Bennett v. Hamill 426 V. Walker' 808 Benson v. Baldwin 93, 162 V. Hadfield 271, 272, 747 V. Heathorn 111, 115, 126, 134 Bent V. Young 311, 552 Benverie v. Prentice 271 Berke v. Harris 271 Berkley ». Rider 632 Berry v. Askham 163, 165, 172 Besant v. Richards 265 a Bettes V. Dana 374, 830. Betton V. Williams 72, 153 Beverley's case 64 Beymer v. Buchanan 297 a Bignall v. Atkins 334, 343 Bignold V. Audland 271, 291, 297 Billings V. Flight 453, 526, 647, 660 Bingham v. Cabot 26, 721 V. Dawson 414, 415, 423 Binks V. Binks 349 Bird V. Hardwicke 575, 579, 581, 583, 686, 593 Birdsong v. Birdsong 237 J Birkley v. Presgrave 161 Blackett v. Lainfear 286 Blake v. Allman 219 a V. Foster 413, 414, 415 V. Jones 153 Bland w. Winter 169 Blain V. Agar 97, 132, 134, 153 Blagden v. Bradbear Blease v. Burgh Blewitt V. Thomas Blight's Lessee v. Rochester Blount V. Winterton Blower v. Monets Section 763 279 b 814 469 202 371 Boddy V. Kent 102, 358 Boeve v. Skipwith 336 Bogardus v. Trinity Church 683, 684, 690, 697 Bogett V. Frier 61 Bolton V. Corporation of Liverpool 601, 602 Duke of, V. Williams 297 a V. Gardner 662, 664, 685, 688, 754, 797 Bond V. Bruit 230 V. Hopkins 756, 757 Boone V. Chiles 604 a, 662, 806 Boone's Heirs v. Chiles 237, 847 Booth V. Albertson 61 tj.Stamper 460 . Browncastle v. Tuttle 793 a Boteler v. Allington 579, 580, 583, 584 Botts V. Verelst 308 Boughton V. Allen 159 Boussmaker, ex parte 54 Bowles V. Orr 783 V. Stewart 232, 775 Bowman v. Lygon 574 Bowser v. Hughes 726 V. Maclean 730 a Bowsher v. Watkins 167, 178 Bowyer v. Covert 92 Boyden v. Partridge 209 Boyd V. Hoyt 271, 276, 279, 284 a, 286 V. Lomax 481 V. Moyle 284 V. Vanderkemp 410 Braband v. Hoskins 451 Brace v. Harrington 153 V. Taylor 500 Brackenbury v. Brackenbury 421 Bradshaw v. Outram 182, 196, 200 Bradt v. Kirkpatrick 813 Bradwln v. Harper 89, 90 Bragden v. Brodbear 763 Brainerd v. Arnold 262 a Bramley v. Westchester County Manuf Co. 235 Brandlyn v. Ord 3ff3, 805 Brandon v. Sands 312, 316, 656 Brantley v. Key 219 a Brasher v. Van Cortland 44, 64, 65, 70 Brassington v. Brassington 70 Bray v. Akers 71 Brereton v. Gamul 319, 561, 845 Bridges V. Hinxman 163 XVI INDEX TO CASES CITED. Section BrinkerhofFi). Brown 99,161, 271, 276, 277, 285, 286, 464, 537 V. Thalhamer' 193 Brodie u. St. Paul 761 Bromley v. Holland 154, 211 0. Smith 114 Brooke v. Hewitt 456, 528 Brookfield v. Bradley 421 Brooks V. Bicknell 153 V. Bradley 556 V. Brooks 61, 62, 71 V. Burt 44, 80, 159 V. Byam 854, 855 a, 868 b V. Gibbons , 448 V. Stuart 169 V. Whitworth 272, 282 Brooksbank v. Smith 754, 813, 815 a Broome v. Hersley 693 Brown v. Blunt 81, 83 V. Douglass 167 a V. Dowthwaite 140, 148 V. Dudbridge 504 V. Hammond 770 V. Higden 332 V. Martin 840, 343 V. Perkins 795 V. Ricketts 89, 99, 104, 161, 203 V. Vermuden 121, 424 V. Warner 528 V. Weatherby 163, 167 a, 172, 176, 178, 180 Brownell v. Curtis 312, 545, 275, 688 Brownsword v. Edwards 448, 508, 525, 585, 593, 665 Brunswick, Duke of, v. Duke of Cambridge 853 Brunswick, Duke of, v. The King of Hanover 59, 69, 249 Bruen v. Bruen 688 Bryan v. Spruill 251 a Buchanan v. Malins 357 Buck V. Buck 885 Buckeridge v. Glasse 279 a Buckley v. Cater 110 Bugbee v. Sargent 284 Bulkeley v. Dunbar 838 Bullock V. Richardson 36, 37 Bunyan v. Mortimer 63 Burditt V. Grew 753, 756 Burgess v. Wheats 399, 628 Burk V. Brown 798 Burnett v. Anderson 297 Burney v. Morgan 101, 158, 365 Burns v. Lynde 61 Burrett v. Hamill 426 Burroughs v. Elton , 178, 514 Burt V. British N. Life As. Asso- ciation 125 o Section Burt V. Dennet 154, 207, 209, 211 Burton v. Robertson 646 a Bushell V. Bushell 71 Butler V. Butler 506 V. Pendergrass 221, 229 Butterworth v. Bailly 312 Butts V. Genung 178 C. Caldwell V. Montgomery 484, 503 V. TEiggart 72 Calverley v. Phelps 193, 209 Calverly v. Williams 39«, 629 Callow V. Howie 61 Campbell v. Beaufoy 179 a V. French 860 V. Graham 813 V. Mackay 271, 274, 278 a. 286 a, 530, 531, 532, 534, 535 537, 638, 539 Candler v. Pettit 336 Cannal v. Buckle 62 Capon V. Miles 797, 798, 846 Capron v. Van Noorden 721 Cardale v. Watkins 311, 321, 560 Carey v. Hatch 47 V. Jones 854 Carew v. Johnston ' 240, 658, 662 Carlton v. Leighton 240, 658, 726 V. McKenzie 63, 71, 878 Camatio, Nabob of, v. E. India Company 468 Carneal v. Banks 237, 469 Carnochan v. Christie 400 Carr v. Iglehart 500 V. Soares 820 Carter, ex parte 287 V. Mills 237 a V. Treadwell 581 Cartwright v. Green 591 V. Hateley 847 Casey v. Hoxey 72, 91, 94 Cathcart v. Lewis 153 Cator V. Butler 181 Catton V. Carlisle 332 Cave V. Cork 356 Cawley v. Lawson .282 a Cawthorne v. Chalie 448 Chadwick v. Broadword 688 Chalmers v. Hack 473 Chamberlain v. Agar 684, 767, 768 Chambers v. Bull 71 V. Goldwin 189 V. Robbins 286 V. Thompson 522, 584, 587, 588, 597 V. Warren 820 INDEX TO CASES CITED. XVU Section Champemoon v. Totness 858, 885 Champion v. Brown 1 78 Champlin v. Parish 763 Chancey ti. May 98, 100, 103, 107, 108 Chandler v. Vilett 58 Chandos v. Talbot 71 Chapin v. Coleman 754 Chaplin v. Chaplin 180 Chapman v. Turner 652 Charleton v. Combes 233 6 Charlotte, The 468 Chauncey v. Fenhoullet 579 V. Tabourden 522, 575, 577, 679, 580, 582 Chaytor v. Trinity College 121 Cheetham v. Croop, 26 Cherokee Nation v. Georgia 469 Cherry v. Legh 832 I). Monro 167 Chertsey Market in re 210 Chetwynd v. Lindon 457, 458, 578, 595 Chew V. Bank of Baltimore 539 a Chicote V. Lequesne 28, 252 Chirac v. Chirac 469 Cholmondely v. CUnton 182, 196, 198, 208, 319, 485, 509, 610, 757, 813, 847 Choteau v. Rice 332 Christophers v. Sparke 196 Church V. Lequesne 232 City Bank v. Bangs 297 a Claggett V. Phillips 600 Clare 17. Wordell 378 Claridge v. Hoare 553, 591, 592, 593 Clarke v. Periam 28, 252. V. Phelps 442 V. Turton 28 Clarke's Ex'rs v. Van Kiemsdyk 849 a Clark V. Webb 1 71 Clarkson v. Bowyer 188, 200 V. De Peyster 609 Clay V. Smith, 813 Clayton V. Earl of Winchelsea 27, 36, 673, 681 a, 582, 693, .764 Clegg V. Varnell 639 a Cleland o. Cleland 91 Clements v. Bowes 135 c Clowes V. Higginson 394 Cochrane v. O'Brien 292, 293 Cookburn v. Thompson 75, 76 a, 77, 78, 87, 89, 94, 96, 99, 103, 104, 106, 111, 120, 121, 134, 144, 169, 541, 745 Cockburne v. Hussey 333 Cocker v. Bevis 427 Cocks V. Foley 500, 601 V. Sherman 193 Codrington v. Codrington 863 a Coe V. Beckwith 216 a h* Section Coe V. Whitbeck 158.a Coffin V. Cooper 270 Colchester, Mayor of, v. 390 Colclough V. Evans 332, 33,3, 614, 616 Coleman v. Barnes 541 6 V. Winch 287 Collins V. Goodall 759 V. Griffith 169 V. Lambe 604 a V. Ripley 235 a CoUis V. Swayne 312 Colt V. Lefreier 76 V. WooUaston 97 Colton V. Ross 40, 42 V. Wilson 181 Columbian Government v. Roths- child 55 Combs V. Proud 407 Coningsby's case 26, 487, 492 Conyers v. Abergavenny 121 Cook V. Arnham 635 V. Mansius 166, 745 V. Martyn 40, 41 Cooke V. Cooke 208 Cookson V. Ellison 734, 857 Coombe v. Corporation of London 858 Coombs V. Proud * 407 Cooper V. De Tastet 297 Cooth V. Jackson 763, 869 Cope V. Parry 208 Copland v. Touhnin 263, 266 o Coppard V. Page 168 Corbet v. Barker 757 Cork V. Wilcock 680, 761, 754, 806, 821 Coster V. Murray 603 Cottington «. Fletcher 688,761,765 Cotton V. Ross 254 Court V. Jeffi-ey 203, 204, 207, 217, 641 Cousins 17. Smith 116 Cowan V. Phillips 521, 559 Gowne V. Douglass 653, 813 Cowslad V. Cely 78, 82, 166, 218 Cox V. CoUey 303 Cozine v. Graham 253, 503, 647, 660, 702, 763 Crallan v. Oulton 769 b Cranbourne v. Crispe 105, 169 Crawshay v. Thornton 291, 293, 294 Creagh v. Nugent 208, 600 Creare v. Babcock 109, 701 Cresset v. Mitton 244, 268, 305 Cresy v. Beavan * 465 Crews V. Burcham 284 a Crocker v. Beavis 638 Crockett v. Lee 257 Crompton v. Earl Gray 572 V. Wombwell 332, 333, 336, 616 XVlll INDEX TO CASES CITED. Crosby v. Berger Crosseing v. Honor Crouch 17. Hickin Crow V. Cross V. Tyrell Crowe V. Del Ris Cruger v. Halliday Cruikshank v. M'Vicar Cuddou V. Tite Cuffu. Platell Section 602 257 465, 818 538 a 315, 674 811 257 245 a 452 6 509, 644 Culien V. Duke of Queensbury 98, 116 497 Cumberland, Duke of, v. Codring- ton 182,506 Cummings v. Coleman 806 Curling V. Townshend 875 a Curtis V. Candler 149 D. Da Costa v. Da Costa ■ Dagly V. Crump Dalton V. Thompson Dancer v. Evett Dandridge v. Washington Danforth v. Smith Daniel v. Bishop V. Mitchell V. Skipwith D'Aranda v. Whittingham Darlington v. Pulteney Darthey v. Lee Darthez v. Clemens Darwent v. Walton Dawson v. Clarke Daubigny v. Davallon Davenport v. Davenport Davidson v. Butler Davies v. Cripps 60 899 306 634 141, 148 40 852 349 a 182 91 644 798 218, 251, 482 75, 78, 82 860 51, 53 50 383 267 u. Davies 167,178,442,686 u. Quarterman 283 V. Williams 333, 365, 448 Davis V. Bluok 404 V. Collier 846 u.. Davidson 848,876 V. Williams 365 Davoue v. Fanning 89 Dawson v. Pilhng 652, 662 V. Sadler 443, 465 Day u. Cummings 153 V. Drake 519 Dayton v. Wilkes 154 a Deare v. Attorney-General 312, 683 De Bigge v. Howe 319, 481, 558, 821 De Corne v. HoUingsworth 255 Deeks v. Stanhope 135 6, 167 Deerly v. Countess of Mazarine 61 De Gaillon v. L'Aigle 61 De Hourmelin v. Sheldon De Sparks v. Montriou Delabere v. Norwood Dell V. Hale Delondre v. Shaw Deloraine v. Brown Del Point v. De Tastet Denniston v. Little Denny v. Filmore V. Gilman Denton v. Davis Denys v. Locock Derby, Earl of, v. Duke of Athol Desborough v. Curie wis V. Rawlins De Tastet v. Tavernier Devaynes v. Morris V. Noble Devie v. Brownlow Devinal v. Smith, Devonsher v. Newenham 161, 230, 458 Dew V. Clarke 281, 283, 303, 306 De Wolf u. Johnson 519 Dexter v. Arnold 182, 188, 403, 404, 407, 413, 414, 415, 417, 420, 751, 756 a. Dhegeleft v. London Assurance Co. 480 Section 586 572 186, 193 443, 545 509 448, 503, 760 267 391 418 603 509 660, 688, 689 489 312 601, 602 263 370 a, 372, 376 167, 178 737 698 599- Diana, The Dias V. Merle Dicker v. Power Didier v. Davison Dillon V. Alvares V. Frances Dilly V. Doig Dineley v. Dineley Dinwiddie v. Bayley Dix V. Briggs Dixon V. Buell V. Wyatt Doble V. Potman Dobson V. Leadbeater Dodge V. Perkins Dodson V. Oliver Doe V. Britain 468 333, 338 a, 423, 616 308 653, 657, 764 741 269 277, 478 323 482 161-, 286, 637 216 o 366 399, 628 668 721 ^71 807 a Dolder v. Bank of England 69, 470, 901 V. Huntingfield Doran v. Simpson Dormer v. Fortesque 41, 42, Dorset v. Girdler Dossee v. Morkerjee Dott V. Hoyes Douglass V. Horsfall V. Sherman 364, Downer v. Wilson Doyle V. Muntz Drake v. Symes . Draper v. Earl of Clarendon 605, 606 178, 514 441, 442, 692 303 503 a 606 209, 216 , 378, 379 905 314 462 6 193 INDEX TO CASES CITED. XIX Dresser v. Norwood Drew V. Drew 651, 660, 684, 688, 689, V. Harman Dryden v. Robinson Dubois V. Hole Duckworth v. Duckworth Dummer v. Chippenham V. Wood Duncalf u. Blake Duncan v. Lyon Duncombe v. Hanstey Dundas v. Dutens Dungey v. Angove Dunn V. Calcraft V. Coates V. Dunn Dunher v. Corporation of ham Dunstall v. Babett Durch V. Kent * Durdant v. Redman Dursley v. Fitzhardinge Dwight V. Humphreys Dyster, ex parte E. Eades v. Harris . 156 Eagle Fire Ins. Co. v. Lent 230 Earl V. Pickin 263, 265 a Earl of Litchfield v. Bond 578 a Earl of Oxford v. Lord Rodney 506 Earle v. Holt 153, 452 East and West India Dock case v. Section 808 a 664, 668, 675, 726, 727, 732 192, 208 803 63, 71 241 234, 235 96 581, 692 563 175, 196 498 292, 293, 294 253 555 279, 535 Chippen- 595 89 96 456, 464 145, 301, 302, 303, 809 47 521, 578 Littledale East Court V. Tanner East India Co. v. Campbell V. Campion V. Edwards V. Henchman 292 500, 501 577 291 299 241, 243, 258, 452 V. Neave 166, 578, 590 Echcliffv. Baldwin , 156 Edsell V. Buchanan 448 Edwards v. Carroll 635 V. Edwards 246 Egberts V. Wood 100, 104, 157, 203 Egremont v. Cowell 241 V. Hamilton 831 Elam V. Gonard 169 a Eldridge v. Knott 759 Eleonora v. Wilhelmina, The 468 Elibank v. Montolieu 61, 341 Ellice V. Goodson 465 V. Roupell 306 a EUicott V. Ellicott 544 Ellis «. Colman - 37 a Section Ellison V. Moffatt 813 Ellsworth V. Curtis 838, 838 a, 840 Ellwand v. McDonnell 859 Elmendorf u. Taylor, 77, 79, 237, 813, • 847 Elmslie v. McCauley 232, 517 Emery v. Pickering 863 Emerson v. Dallison 47, 266 V. Davies 422 Emmott V. Mitchell, 656, 657, 661 Endo V. Caleham, 798 English V. Foxall 40 Ensworth v. Lambert 193, 334, 343 Esdaile v. Molyneux 851 Evan V. Avon 42 b, 254 h Evans v. Bicknell 265 a V. Harris 660, 678, 683, 803 u. Stokes 82, 94 131, 131a, 132, 218 Everit v. Watts 683 Ewin V. Osbaldiston 577 Exeter College v. Rowland F. 279 Fairfax's Devisee v. Hunter 469 Faithful V. Hunt 164, 206 Fall V. Chambers 480 Fallowes v. Williamson 159, 167, 357, 622, 830 Fane v. Atlee Farmer v. Curtis Farquharson v. Balfour Farrar v. Crosby 580 195, 196 852 394 61 104 37, 252, 606, 651, 668, 856 745 77, 81, 84, 186, 195 271, 276, 285, 286 90, 92, 94, 115 a, 132, 134, 150 V. Edmonds 291 Fenton v. Hughes 226 a, 232, 234, 519, 570, 734 Fenhoulet v. Passavant Fenwick v. Reed Ferguson v. Fisk V. O'Hara Ferrer v. Barrett V. Grenard Farrell v. Smith Faulder v. Stuart Fawkes v. Pratt Fell V. Browne Fellows V. Fellows Fenn v. Craig Ferrers v. Cherry Field V. Beaumont V. Maghee V. Schiefielin Fief V. Clayton 269, 270 602 236 688 169 a 368 563 153, 154 395, 396, 400, 632 394 Finch V. Finch 344, 319, 561, 585, 586, 588, 608, 845 XX INDEX TO CASES CITED. Section Finch V. Winchelsea 369 Findlay v. Hinde 313 Finley v. Bank of U. States 186, 193 Fish V. Howland 104, 203, 207 o. Miller qiB5, 797 Fisher u. Price 578 a Fishwick v. Lowe 198 Fitch V. Creighton 153 Fitzgerald v. O'Flaherty 265 a Fitzhugh V. Lee 308 Flagg V. Mann 528, 849 a Fleming v. Gilmer 219 a, 282 a Fletcher v. Ashburner 221 V. Toilet 450, 643 Flint V. Field 27, 32 Floyher v. Sydenham 574 c Foley V. Carlton 279, 286 V. Hill 668, 671, 680, 683, 688, 689 Follett V. Jefferyes 233 6, 600, 601 a Foord V. Lear 154 Foot V. Bessant 509 Forbes v. Skelton 681, 754 V. Stevens 893 a Ford V. Peering 255, 452 Fordham v. Eolfe 1 70, 1 72 Forniquet v. Forstall 539 a Foss V. Haynes 591, 596 Foster v. Deacon 342, 348, 350 V. Foster 354 V. Hodgson 448, 484, 503, 635, 751, 760 V. Neilson 468, 469 V. Passel 737, 741 Fourdrin v. Gowdey 586 Fox V. Frost 500 Francis v. Wigzell 853 b Franco v. Bolton 595 V. Franco 149, 213 Franklyn v. Feme 516 Franks v. De Pienne 61 Freake v. Cranefeldt 503, 759 J V. Horsely 200 French v. Baron 87, 88, 181 V. Dear 47, 269 V. Shot well 692 Frietas v. Dos Santos 250, 258, 312, 325 Fulham v. McCarthy 153 Fuller V. Lance 64 Fulton Bank v. New York and Sharon Canal Company 338 a Fulton V. Gilmore 901 Fyson V. Pole 603 G. Gage V. Stafford Gaines and Wife 60, 739 Chew 285 a, 474, 511, 786, 788 Section Gaines v. Hennen 153 Galatian v. Cunningham 662 V. Erwin 401, 631 Galbraith v. Neville 431 Galton V. Hancock 173, 174, 180 Gamber v. Attlee 61 Gardner v. Mason 860 V. Ogden 282 a Garey v. Whittingham 63, 71 Garner v. Lyles - 525 c Garr v. Gomez 349 Garrett v. Moss 421c Gaskell V. Gaskell 145 Gason v. Gamier 70 Gawler v. Wade 176, 180 Gedge v. Traill 178, 227 Gell V. Hayward 247, 305 Gelston v. Hoyt 55, 319, 555 Georgia, State of, v. Brailsford 469 German v. Machin 391 a Gethin v. Gale ' 852 b Gething v. Vigurs 510, 543 Gibbons v. Waterloo Bridge 235 Gibson V. Ingo 541, 884 V. Whitehead 657 Gifford V. Hart 99, 144, 145, 159, 197, 428 Gilbert v. Lewes 146 c, 233 a, 251 a Gillespie v. Alexander 106 Glascott V. Copper Miner's Co. 235 V. Long 251 Glassington v. Thwaites 838 a, 840 Gleg V. Legh 400, 832 Glengall v. Edwards 855 Glengall, Earl of, v. Frazer 319, 599, 844, 855 a Glenham v. Stutwell 371 Glenn v. Cockey 181 a Glynn v. Canefield 852 V. Houston 563, 597 V. Soares 226 a, 569, 610 a, 820 Godfrey v. Chadwell 186, 193 Good V. Blewett 96, 98, 99, 104, 157, 166 Goodchild v. Terrett 163, 172, 180 Goodess V. Williams 147 Goodhue V. Churchman 405 Goodier v. Ashton 193 Goodrich v. Brown 776, 779 V. Pendleton 653, 754 Goodson V. Ellison 210 V. Kerr 469 V. Simpkinson 312 Goodwin V. Goodwin 332, 335 Gordon v. Gordon 28, 38, 390 "■ Pym 95, 107 V. Shaw 606, 810, 847 Gore r.^ Harris 149 INDEX TO CASES CITED. 2X1 Gore V. Stackpole Gorham v. Gorham Gould V. Barnes V. Tancred Gouverneur v. Elmendorf Grace v. Terrington Section 198 65 623 337 a, 634 395, 400 147 Graham v. Coape 339, 838 a, 840 V. Graham 180 V. Oliver 263, 265 a V. Stamper 481 Grant v. Van Schoonhoven 61, 361 Granville v. Ramsen 644 Gray v. Chaplin 113 V. Shenck 81, 82 Green v. Rutherforth 720 V. Tanner 886 V. Weaver 521, 578, 589 Greenleaf «. Queen 336 Greenlee v. McDowell 413, 421 Greenough v. Gaskell 599, 600, 602, 846 Greenwich Bank v. Loomis 154, 403, 421 Greenwood v. Atkinson 332 V. Churchill 271, 284 a V. Firth 101 Gregor v. Molesworth 405, 635 Gregory v. Paul 61 V. Pierce 61 Grenfell v. Girdlestone 759 a Grey v. Dickinson 421 V. Hesketh 522 Gridley v. Wynant 219 a Griffin V. Archer 233, 234 Griffiths V. Bateman 732 V. Hamilton 511, 786 V. Hood 61 V. Lewis 500 w. Ricketts 374,509,617,625, 626 V. Yanheythyson 211 17. Wood 869, 870 Griggs V. Gear 405 Grignor, Lessee of, v. Aster 163 Grimes v. French 41, 42 Grist V. Forehand 59 a Gude V. Mumford 48, 881 a Guiborn v. Fellowes 592 Gun V. Prior 700, 852 b Gwynne v. Edwards « 421 H. Haddock v. Tomlinson 44, 80 Hadley v. Healey 448 Hagan v. Walker 193 Haig V. Homan 407 Haines v. Beach 186, 193 Section Hall V. Bodily 855 V. Hoddesdon 306, 315 V. Maltby 257, 263, 265 V. Noyes 651, 660, 727, 852 b V. Wood 854, 855 Hallett V. Hallett 77, 89, 90, 94, 99, 100, 104, 157, 158, 204, 205 Hallock V. Smith 195 Halsam, ex parte 71 Hamblin v. Bridge 63 Hamersley v. Lambert 54, 1 78 Hamilton v. Houghton 641 Hamm v. Stevens 210 Hamper, ex parte 167 Hanbury v. Stevens 420 Handford v. Storie 102 Handwiok v. Shaen 147 Hannah v. Hodson 395 a Hanrott v. Cadwallader 62 Hai-dcastle v. Smithson 121 Harder v. Harder 544 Harding v. Handy 79, 160 V. Harding 875 V. Pingey 187 a V. Wheaton 265 a Hardman v. EUames 572, 651, 657, 662, 666, 668, 681, 683, 858, 859, 859 a Hardy v. Hull 354 V. Martin 590 V. Reeves 485, 503 Hare v. Duppa 693 V. North Western Railway ' Co. 168 a Hares v. Stringer 207 a, 212 Harland v. Emerson 683 Harper v. Hill 251 a Harris v. Harris 660, 673, 683 «. Ingledew 87,150,162,172, 181, 697 V. Pollard 617 Harrison v. Hogg 253, 279, 528, 530 V. Ridley 331, 379, 383 V. Southcote 575,576,583,588 V. Stewardson 76 a, 149, 205, 207, 210, 216, 217 Hart u. Coflfee 169 a V. P. & Mech. Bank 808 a Hartt V. Coining 662, 680 Hartwell v. Townsend 411, 833 Harvey v. Bignold 132, 167 V. Cook 220 V. East India Company 44 V. Harvey 89, 94, 105, 134, 135 6, 149, 207 a, 207 6 V. Morris 289 Haskell v. Haskell 572 V. Hilton 508 xxu INDEX TO CASES CITED. Section Haughton v. Davis 157 Hawker v. Duncombe 421 Hawkins v. Hawkins 76 a, 89, 94, 96, 149, 207 a, 207 6, 210, 217, 613 V. Kelley 513 Hawley J). Warner 167 V. Wolverton 268 Haycock v. Haycock 89, 104, 203 Hayne v. Hayne 393 Hayward v. Constable 790 Heath v. Percival 81 V. Corning 680 Heathcoate v. Fleete 579 Hemphill v. M'Kenna 241, 255 Henderson v. Cook 421 b V. Henderson 783 Hendricks v. Kobinson 98, 99, 100 Henley v. Stone 161, 185 Henriquez v. Dutch East India Co. 55 Hepburn v. Durand 852 Hercy v. Din woody 813 Herring v. Clobery 600 Hertford, Marquis of, v. The Count Zichi 89 Hewitt V. Hewitt 652 a Heys V. Astley 761 a Hichens v. Congreve 97, 107, 109, 121, 126, 132, 541 V. Lander 766, 769 Hickock V. Soribner 72, 75 Hicks V. Raincock 451, 458 Hiern v. Mill 40, 42 Higginbotham v. Burnet 312, 443 Higginson v. Clowes 394 Hildyard v. Cressy 699 Hilleary v. Hardle 40 Hill V. Adams 189 V. Reardon 456 v.. Smith 70 Hilton V. Barrow 391, 628 V. Lord Scarborough 278 Hinckley v. Barton 47 Hindman v. Taylor 681, 754, 821 Hindmarsh v. Southgate 219 Hirst V. Pierce 853 Hitchens v. Congreve 541 V. Lander 767, 769 Hoare v. Parker 806 V. Peck 448, 484, 503, 751, 760 Hobart v. Abbott 186, 191, 193, 199 Hobson V. Mc Arthur 40 Hodgkin v. Longden 312 Hodgkinson, ex parte 167 Hodson u. Ball 338,3516,414,417, 420, 421, 422 Hoggart V. Cutts 271, 284, 291, 293, 539 Section Holdsworth h. Holdsworth 334 Holland v. Baker 184, 193, 207, 343 u. Prior 72,170,178 Hollingshead's case 831 HoUingsworth v. McDonald 407 HoUis V. Whiting " 766 Holmes v. Beddely 499 V. Remsen 456 Homan v. Shiel, 236, 745 Honeywood v. Selwin 580, 587, 597 Hood V. Inman 241, 266 Hook. t). Dorman 464, 478, 688 V. Kinnear 208 Hopkins V. Hopkins 198, 208 Hopkirk v. Page 72 Horsburg v. Baker 371 a, 521 Horwood V. Sohmedes 621 Houghton V. Reynolds 28, 32 a, 241, 242, 245 a, 258 V. West 401 Houlditch V. Donegall 365, 741 Hovenden v. Annesley 69, 448, 453, 503, 526, 751, 754, 756, 757, 760 Howard v. Prince 61 V. Robinson 859 a Howe V. Best 519 V. Duppa ' 659, 811, 812 V. Russell 396 Howes V. Wadham 127, 186, 193, 196 Howlatt V. Wilbraham 70 Hoxia V. Carr 72, 156, 162 Hudson V. Maddison 279, 286 6, 537 Huggins V. York Buildings Com- pany 302, 382, 692, 739 Hughes V. Biddulph 602 V. Blake 697 V. Edwards 469 V. Gardner 263, 265 a, 806 V. Jones 414 HuUatt V. King of Spain 55 Humberston v. Humberston 91, 180 Humbert v. Rector of Trinity Church 503 Hamble v. Shore 154 Humphreys v. Humphreys 91, 170,478 V. Ingledon 625 Hunt V. Wiekliffe 286 Hunter v. Capron 858 V. Daniel 242, 251 V. Marlboro 421 V. Richardson 232, 544 V. Stewart 783 a Hussey v. Dole 76 a Hutchins v. Landar 825 Hutchinson v. Tancred 207, 212 Hyde v. Warren 291 Hylton V. Morgan 574 c INDEX TO CASES CITED. XXUl I. Section Inchiquin v. French 81 Ingilby v. Shafto 321 a Ireson v. Denn 287 Ireton v. Lewis 166, 167 Irnham v. Child 28 Irving V. DeKay 395 V. Thompson 226 a, 569, 610 a, 820 V. Viana 537 Ivie V. Kekewick 571, 573 J. Jackson v. Ashton 26, 257, 492 V. Forrest 274 V. Haworth 71 V. McChesney 808 V. Radford 180 V. Rawlins 166, 360 V. Rowe 806 V. Strong 312 James v. Herriott 316 V. McKernon 36, 257 V. Sadgrove 681, 681 a, 751, 754 Jameson v. Deshields 887 Janson v. Solarte 537, 544, 853 6 Jarvis v. Palmer 457 Jauncy ti. Sealey 179,787 Jefferson v. The Thomas 24 Jeffrey v. Stephens 503 c Jenkins v. Eldredge 333, 336, 337 a, 408 a, 421 V. Pruritt 414 Jennings v. Merton College 901 V. Jenkins 160 Jenour v. Jenour 371 Jerdein v. Bright 508 a, 538 a Jeremy u. Best 755,821 Jerrard v. Saunders 603, 662 Jew V. Wood 293, 294 Jodnell V. Slaney 852 Johnes v. Smith 287 Johns V. Reardon 63 Johnson v. Atkinson 293, 294 V. Condage 150 V. Curtis 251 V. Johnson 282 w. Peck- 370,371 V. Thomas 157 Jones V. Davis 668, 676 V.Frost 443,474,511,657 V. Garcia del Eio 97, 101, 121, 279 V. Gilman 297 a V. Green 590 V. Howells 343 Section Jones V. Jones 249, 258, 312. 332, 333, 334, 335, 378, 474, 541 V. Kenrick 634 V. Meredith 583 V. Nixon 793 V. Parishes of Montgomery 42 V. Powles 604 V. Pugh 600, 846 V. Quinnipiack^Bank 525 c V. Rose 884, 885 V. Sagueira 738, 743 V. Skipworth 361 V. Stafford 442, 456 V. Wiggins 846 a, 853, 854, 857 Jongsma v. Pfiel 70 Jordan v. Holkham 570 «. -Sawkins 761 Joseph V. Tuckey 726 Josey V. Rogers 401 Joy V. Wirtz . 72, 77, 103 K. Kane v. Bloodgood 754 Kay V. Duchess of De Pienne 61 V. Marshall 657, 708 V. Watson 410 Kaye v. Fosbrook 495, 516 Kelly V. Lenon 410 Kemp V. Maokrell 399 V. Morrell 371 V. Pryor 483 Kemp's Lessee v. Kennedy 720 Kennedy v. Daly 426, 428, 775 Kensington v. Mansell 278 a, 319, 558 V. White 286 a, 537 Kenyon v. Worthington 94 Kettle V. Crary 89, 104 Kerr v. Gillespie 888 V. Eew 569, 820 Kilcoucey v. Ley' 332 Kimber v. Ensworth 149 Kimberly v. Sells 312, 574 King V. Allen 315 V. Galloway 237 V. Heming 312, 704 V. Ray 654, 854 King of Spain v. Machado 55, 509 V. Mendazabel 55 King, The, v. Blatchford 505 V. Burr 556, 595 V. King 182 Kingof Two Sicilies W.Wilcox 576,577 Kington v. Gale 602 Kinsey v. Kinsey 790 Kirk V. Clark 61, 209 Kirkley v. Burton 528 Kirkman v. Andrews 726 XXIV INDEX TO CASES. CITED. Section Kirkpatriok v. White ' 692 Kirwan v. Daniel 81 Kittredge v. The Claremont Bank 854, 855 a, 886 Knight V. Barnsfield 251 V. Bowyer 37 c «. Knight 72,74,76,173,174, 182, 300, 344 V. Moseleji • 443 Knox V. Gye 905 a Kreechbaum v. Bridges 481 a Kuye V. Moore 209, 278, 283, 530, 636 Kuvpers v. Dutch Reformed Church 448, 689, 853 Laight V. Morgan Lambert v. Hutchinson Lampert v. Lampert Lancaster v. Evers V. Thompson Landsdowne v. Elderton Lane v. FawHe V. Hardwicke V. Hobbs V. Stebbins Lang V. Brown Langdon v. Goddard V. Pickering Lange v. Jones Langham v. Langley v. Fisher Langston v. Boylston Langton v. Horton Lansing v. Pine Latouche v. Dunsany Larkins v. Bidd Lautour V. Holoombe Law V. Rigby Lawley v. Walden Lawson v. Barker Layton, ex parte Leacroft v. Dumpsey Lee V. Read V. Lee Legal V. Miller Legon V. Pairlee Leggett V. Postley Legh V. Haverfield Leigh V. Leigh V. Thomas 89, Leithley v. Taylor Lemon v. Porter Lenaghan v. Smith Lenoh v. Lench Le Neve v. Le Neve V. Norris 312, 319 237, 283, 544 61 178 117, 121 282 170 871 421 311, 324 a 169 a 266, 862 862 230 852 a 732, 863, 868 a 294, 297 807 a 580 397 271 6 495 99, 739 151 104, 140 167 699 577 329, 349, 350 42, 394 179 319, 322, 553 394 771, 821 94, 98, 99, 161 71 189 212 65 a 71 416 Leonard v. Leonard V. Morris Le Boy v. Veeder V. Servis Le Texier v. Anspach Leving v. Caverley Lewellen v. Maokworth Lewis V. Nangle V. Zouche Leyland v. Leyland Litchfield, Earl of, v. Bond Lillia V. Airey Lincoln v. Wright Lindsay v. Lynch Lingwood v. Croucher 't). Eade Little V. Buie Livingston v. Hubbs V. Livingston V. Lynch V. Story Lloyd V. Brewster V. Lander V. Loaring V. Johnes Lloyd's case Lockwood V. Abdy Loker v. RoUe Lomax v. Hide London, Bishop of, u. Fytche 319,553 City of, u. Perkins 120,124,278 V. Richmond 118 Corp. of, V. Corp. of Liver- pool 654 Mayor of, u. Levy 29, 248, 258,259, 321,323,443,445, 558, 570, 578, 595 Londonderry (Lady) v. Baker 783 a Londonderry, &c. Railw. Co. v. Lishman 554 Long V. Burton 845 D. Majestre 178,514 V. Younge 120, 126, 132, 134 Longdon v. Pickering 862 Longman v. Calliford 332 Louisville T. Co. v. Bollard 219 a Louisville, &c. R. R. Co. v. Stetson 492 Lousada v. Templer 312,' 558 Lovell V. Andrews 135 a Lowe V. Farlie 179 V. Morgan 201, 202 V. Richardson 294, 296 Lowndes v. Cornford 294 V. Taylor 818 Lowry V. Morrison 158 a Lowther v. Carleton 187 190 Lucas V. Evans 579 Section 606, 607 196, 199 312 312 232, 235, 519 70 420, 835 181, 199 148 885 a 524, 578 a 63, 71 761 a 391, 394 232 232 237 413-415 312 497 312,437, 721 42, 254 234 104, 107, 111, 497 144, 146, 327, 331, 350, 351, 384 70 219, 221, 227 312,476 193 INDEX TO CASES CITED. XXT Section Lucas V. Oliver 42 6 Ludlow V. Macartney 415 Lumsden v. Frazer 236 a, 271 a, 272, 278 a, 540 Lund V. Blanchard 178, 209, 274, 530, 538 Lyne v. Fennel 343 Lyon V. Tevis 231 a Lytton V. Lytton 410 M. Macartney v. Graham 153 Macauley v. Shackell 558, 559, 563, 596 Macbeath v. Haldimand 481 Maccallum v. Turton 825 MacGregor v. East India Com- pany 681,6810,751,752,754,821 Mackworth v. Clifton 751 Madox V. Jackson 169, 172, 173, 180 Maddox v. White 452 Mahaney v. Lazier 875 6 Main v. Matthews 761 Maitland v. Wilson 699 Makepeace v. Haythorne 232, 509, 516 Malcolm v. Scott 263, 265 a, 336, 719 Malin v. Malin 207, 209 Mallock V. Galton 790 Mallow V. Hinde 79, 81, 237 Manaton v. Molesworth 41 Manchester v. Mathewson 387 Mandeville v. Kiggs 107, 113, 126 Mann v. Butler 107 Manners v. Kowley 284 Manning v. The«ger. 89, 105, 205, 217 Mansell v. Feeny 691 a, 691 b Many v. Beekman Iron Company 324 a March v. Davison 311, 319, 324 a, 575, 597, 845 V. Ludlum 600 Mare v. MSachy 76 c, 96, 115, 129, 132, 214 a Margery Groom, in re 63 Margrave v. Le Hooke 287, 288 Marks v. Pell 265 a Marriott v. Tarpley 340 a Marsh v. Keith 42 6 825 a, Marshall v. Beverley 77 V. Mellish 863 V. Rutton 61 V. Sladden 232 Martin v. Nicolls 563 Mason v. Gardiner 630 V. Goodburne 300, 301, 303 V. Wakeman 606 , Massey u. Davis ■ , 166 V. Gillelan • 349 Massie v. Watts 471, 489 EQ. PL. C Section Massie v. Graham 304,404,406, 410,414 V. Grant 417 Masters v. Barnes 857 Maud V. Acklom 279 Maxwell v. Kennedy 503 May V. Goodwin 481 a V. Selby 99, 164, 213, 214, 214 a Mays V. Taylor 488 Mazzaredo v. Maitland 605, 606, 847 McBride v. Linsay 167 McCabe v. Bellows 271 6 V. Cooney 240, 258 McGown V. Yorks 193 McGregor v. East India Com- pany 752, 754 Mcllvaine v. Coxe's Lessee 469 Mclntire v. Mancius 319 V. Trustees of Union College 316 McKay v. Green 109 McKim V. The White Hall 521 McNamara v. Williams 231 McNeill V. Cahill 415, 416 Mead v. Merritt 489 Meadows v. Duchess of Kings- ton 786, 806 Mechanics Bank v. Levy 36, 268 Mechanics Bank of Alexandria V. Seaton 236, 350 Meeker v. Tanton 200 Mellish V. Brooks 159 V. Richardson 316 V. Williams 407 Mendizabel w. Machado 817,821 Merreweather v. Mellish 381, 387, 694, 701, 745, 830 Messenger v. Hammond 153 Metcalfe v. Hervey 291, 295, 443', 574 V. Metcalfe 624 V. Pulvertoft 156 Methodist Episcopal Church v. Jacques 605, 606 Meaux v. Maltby 81, 98, 117, 121 Mewshaw v. Mewshaw 252, 454 Michaux v. Grove 508 Micklethwaite v. Atkinson 871 Middlebrook v. Bromley 525 a Milbank v. Collier 119 Miles V. Miles 582 Millar V. Bear 153 Miller v. Huddlestone 89 V. McCan ■ 541 V. Mclntire 757 V. Miller 871 V. Whittaker 231 a Milligan v. Milledge 79, 541, 698, 745 V. Mitchell 114 a, 332, 541, 884 xrvi ISDEX TO CASES CITED. MHJs r. Campbell 286 a, 45 S a, 53 7, > > o V. Dennis 193 r. Hoag *49 llilner v Haiewood 337, 343, 615 Minn r. Scaot i'.' ' Minor v. W'illoughbv ^ >.5 a Mitciiell r. Bailev 541 i: Berry 421 e I. Green 560 V. Greene 312 V. Ebrris Tsi V. Hayne 29 T V. Koecker i'iS V. Lenox 541. 745 I r. Saiitii 311 V. Ti^te 502 Mocata r. In^Sby 131 Motfac V. Farquhars^a &S. 166, 213 Mohawk & Hndam SaHroad Col V. Chrte 292, 297 I Mole tr. Smidi 272, 347 i MoDineanx r. Powell 155 Monder r. Mondey 1 93 i Monnins <:. MnnniTi- 579 Mont V. S-Mrt 5t52 MoDtagne v. Dtdman 319, 322, 552 F. yaeeDa 90, l'>4. 105 i r. Tnr^ 169 ! Mootgaoerie v. TUrl <^ Badi 201. 210. 212 Sloodalay r. Morton 2-35. 303, 322 i Moodie v. Bannster 503 ft | Moore r. JEIdwards 761 V. Hart 658 '■ v. Hndam 43, 44 V. Lrtde 50'j. 501, 5l'2 17. Moore 421, 422 r. Webh C<^per Company 737 Moicgan f. Harrb 312, 512. 54>j r. Morgan 160 r. Sargent 454 i r. Scndamore 3 71 \ T. Thnm 57 Moiiey v. Hawke 544 r. BeyiK)Idsoa 307 a Moiret V. Westeme 193 Marriee f. Bank of England 790 Morris v. Morgan 249 a, 312 I V. Parker ~54 Moriaca I. Tumoar 661, 665, 762. 763, 764, 766 Morrison r: Arradd 151 V. Morrison 37 S Mofse B. Bnckworth 5 79 IT. Saffler li'M, 164, 2')5 Mortimer r. Orchard 503 e Morton p. Xefl 282 a Moses V. Lewis 482 Mosley v. Hawke 544 Mosty-n s. Fabrigas 24 Mottenx 9. Londm Assorance Ccmpony . 4^0 Moonsey f. Bomhani ?-}3 Moontfeid V. Tayte 852, 8-55 Movan V. Hayes 154 Mncklestcm p. Brown 36,312, 766. 767 Monday v. KnigM 231 Mnlbdland tr. Handrick 26-3. 265 a Mnndi r. CockeriD 213, 214 Mnnoz v. De Taitet 44. 5 J Mnnson r. Minion 451a Murphy >.-. Jack-ov. 219 a Murray f. Ea^ In£a Co. 831 tr.'Elibank 612 p. Sbadwea 744 Mnrriet v. Ltoti f 1 Mnssell t . C^e 766 p. Mopvan 426 Moston F. Brad^iaw 63 Matter f. Chaarel 33-3. 523 Xail F. MoWy JJanney f. Totty Xash r. Flyn Neafie f. Xeafie Neate F. T- ja tinn ^ r X. 272 617 393 790 85». 5«0 F. Dnke o£ Maribonegb 25 ■ 319, ^eathway !^ Ham Xecot V. Barnard Jfehne r. Jsewtai :?feb:«i r. Hifl •2> 2« eanish w. CaWert r. Sogers ^eTc r. IVeston Xewbmg r. Wren Xew._-a5tle. Dnches o£ r. Pettam Newfaoo^ F. Miles r.MiSfe*d Sew Jersey Co. r. Ames ^ew Jersey r. Xew Yak ^lewkirfc f" >\ iliet iSewland r. Champion r. Rogers Kewlands f. Paryorte SewhaD c. Hobtis Sewman f. Franco F. God&ey r. WallB Newseome r. Bowyer Jfewton p. Earl of Egmoot 101, li>2, 133, 149. 158, 164 Sew YaA. v. Connectieat 471 -55 265 J 265 J 825 ■-. J. 530. 533 23 270 T40 400 Lord 574 c 514 421 319 a 471 325 100.141. 178, 514 2 71. 2.S7 507 a 6l^ 521 2S4. 545. 557 701, 727. 5?5 61. 63 INDEX TO CASES CITED. XXVU Myers Nicholls V. Elford Nicholson v. Knowles Nicoll V. Roosevelt Nix V. Winter Nobkissen v. Hastings Noble V. Gzffland Nolan V. Urmston Norbury v. Meade Norfolk, Duke of, t Norfolk, ex parte Norris v. Le Neve Norrish v. Marshall North V. Gray V. Strafford V. Way Northcote v. Northcote North ey v. Northey Northleigh v. Luscombe Norton V. Sprigg Noysomhed, The Nutting V. Hebdin O. O'Brien v. Conner O'Hara v. Shepperd .Ocean Ins. Co. v. Fields 653, Section 371 296 354, 369 241 656, 895 815 410 257 120 167 418, 415 191, 219 303 312 779 964 228 852 6 360 490 156 407, 635 338 436,437,558, 591 Odell V. Gray den Offley V. Jenney Ogilvie V. Heme V. Knox Insurance Co Ogle V. Haddock's Adm'r Oldham v. Eboral Olding V. Glass Oliver V. Haywood V. Piatt Ontario Bank v. Root Oppenheim v. Le Wolf Orcutt V. Orms Ord V. Huddleston V. Noel 413 Ormes v. Beadell Orr V. Hodgson Orteges v. Messere Osborn v. Usher Osboum V. Fallows Ottway V. Wing Ovey V. Leighton Owen V. Curzon Owens V. Dickerson V. Smith Owings V. Hull 193 58 645 219 a 479 389, 350, 385 846 a 29, 282, 595 284 a, 586, 539 763 297 699 727 414,416,417,423 691 a 469 64 144, 424 188, 207 61 847, 852 6 382 101, 133 500 24 606, Oxford, Earl of, v. Lady Rodney 506 Section 3;e V. Townsend 509 : V. Chnton 40, 72, 84, 186, 195, 196 101 183, 685, 148, Pais PalE Palmer v. Dutcher V. Earl of Carlisle V. Mure Parker v. Alcock V. Fairlie V. Fearnley V, Fuller V. Leigh V. Nickson V. Nightingale V. Parker «.-Ray V. Win. L. C. & W. Co. 481 a Parkhurst v. Lowten 522, 523, 553, 567, 583, 598, 599, 607 V. Van Cortlandt 761 Parle v. Peele 265 a Parsons v. Neville 89 Partridge v. Haycroft 31, 83, 38 201 251 797 267 508 164 400 508 a 125 6 170, 343 315 Padwick v. Piatt 193 V. Jackson V. Usborne Parr v. Attorney-General Parry v. Owen V. Rogers Paterson v. Bangs V. Slaughter Patrick v. Blackwell Pattison v. Hull Patton V. Bencini Pawlet V. Attorney-General V. Bishop of London Paxton V. Douglass 521, 553 47 406, 417 271 a 475 Payne v. Compton Peacock v. Monk V. Terry Pearce v. Grove V. Piper Pearse v. Hewitt V. Pearse Pearson v. Belchier V. Ward Peck V. Ashley Peering v. Dunn Peile V. Stoddart Pelford V. Ruskin Pelham v. Gregory Pendleton v. Fay Penfold V. Nunn Penn v. Lord Baltimore Pennington v. Alvin V. Beechey Penny v. Watts Penrice v. Parker Pentz V. Hawley 808 311 897 855 392 102 70 228 577, 578, 591 604 a, 805 100, 102, 203 28 898 110 178, 274 a, 514 599, 600 98 308 319,481, 567 793 855, 859 858 a 161, 230 388 0,887,414,421, 422, 423, 624 78, 452 471 61 682, 687, 806 541 594 848 XXVIU INDEX TO CASES CITED. People V. New York Perrat v. Ballard Perrott v. Bryant Perry v. Carr V. Jenkins V. Knott Section 235 a 825 166, 168 187a 831 212 «. Phelips 407,417,421,422,425 Patch V. Dalton . 231 Peyroux v. Howard 24 Phelps V. Sproule 353, 364, 374, 382, 386, 625, 626, 796, 797, 798 Phillips V. Carew 304, 307, 308, 309 V. Brvdges 779 V. Phillips 805 a V. Provost 605, 606, 607 V. Shaw 505 Phipps V. Steward 512 Piatt V. Vattier 847 Piokard v. Matheson 421 Piokford v. Hunter 790 Pierson v, David ' 503 y. Robinson 166,167 Pigott V. Williams 389, 526 Pilkington v. Wignall 339 Pinkus V. Peters 336 Piper V. Douglass 257 Pitts V. Short 312 Piatt V. Squire 183 Plomer v. Plomer 63, 71 Plumbe V. Plumbe 242, 281 a Plummer v. May 234, 683, 734 Plunket V. Joice 180 V. Jones 181 0. Parson 76, 91, 173 Pomfret v. Windsor 775 Poole V. Attorney-General 69 V. Poole 726, 727 Poore V. Clarke 121 Portarlington v. Soulby 442, 606, 608, 686, 687, 688, 754, 847 Portland, Countess of, v. Prodgers 61,71 Portman v. Popham 71 Porter v. Cox 349, 383 Portlock V. Gardner 656 a, 813 Portugal, Queen of, v. Glyn 569, 610, 610 a, 820 Post V. Boardman 569 Postgate V. Barnes 652 a Pott V. Gallini 432 Potter V. Potter 869 Potts V. The Thames Dock Co. 209 Powell V. Aderne 282 V. Wright 102, 135 6, 149, 156, 207 6, 351 Pratt V. Keith 525 6 Preston v. Carr 599, 602 Price V. James 312 Pringle v. Crooks 237, 283, 544 Pritchard v. Hicks V. Quinchant Prout V. Underwood PuUen V. Smith Purefoy v. Purefoy Pusey V. Desbouvrie Pyle V. Price Q- Section 89, 100, 104 69 852 853 a 287 651, 796 543 Queen of Portugal v. Glyn 569, 610, 610 a, 820 Quilter u. Mussendine 817 Quintine v. Yard 78 K. Raffity V. King 544 Ramkissenseat v. Barker 402 RandaU v. Head 852 b V. Mumford 331, 345, 349, 350, 383 Raveld v. Russell 757 Rawden v. Shadwell 521 Rawlings v. Lambert 42 6 Rawlins v. Dalton 745 a V. Powell 899 Ray V. Duke of Bedford 590 V. Fenwick 153, 541 V. Low 408 a Rayner v. Julian 161, 272 Read v. Hawley 638 V. Brookman 4 Redmond v. Dana 42 6 Reed v. Langlois 852 V. Wessel 481 a Reeve v. Attorney-General 69 V. Dalby 790 Regnes v. Lewis 63 Respass v. McClanahan 415 Reynoldson v. Perkins 144, 198 Rheam v. Smith 538 Rhea V. Rhenner 61 Rhodes v. Warburton 510 Rhode Island v. Massachusetts 471, 653, 697' Rioardo v. Garcias 783, 785 Rice V. Page 186 V. Shute 76 Richards v. Bayly 393 V. Cooper 193 V. Jackson 599 V. Salter 297 Richardson v. Hastings 96, 115 6, 132, 134 V. Hurlburt . 568 V. Larpent 132, 134, 135, 135 6 V. Mitchell 847 INDEX TO CASES CITED. XXIX Eiclimond v. Taylem- Section 426 Kidler v. Ridler 64 Ringo V. Warder 61 Ritchie V. Aylwin 652 Rivet 0. Lancaster 61 Roberdeau v. Rous 456, 489 Roberts v. Clayton 545 V. Hartley 660 V. Kingsly 415 V. Maddocks 662 V. Marchant 160, 177 a V. Roberts 352 V. Tunstall 207 V. West 63 Robertson v. Lubbock 652, 655 V. Southgate 329, 349 Robinson v. Gee 182 V. Guild < 531, 533 V. Lamord 578 a V. Reynolds 61 ■V. Smith 541, 745 V. Thompson 457, 458, 541 V. Tonge 790 Roche V. Morgell 649 665 685, 797 Rodgers v. Scott 316 Rodney v. Hare 881 Rogers V. Traders' Ins. Co. 153 Rolfu. Paterson 590 Rondeau v. Wyatt 319 558, 562 Rootham v. Dawson 478 Rose V. Gannell 306, 316 V. Page 193 Roscarrick u. Barton 193 Ross V. Crary 89 Rothschild v. Queen of Portugal 390 Routh V. Kinder 102 Roveray v. Grayson 85 Rowe V. 308, 309 V. Teed 606, 607 647 652, 762, 763, 860 V. Wood 332 Royle V. Wynne 743 Rudge V. Hopkins 121 RuUuff, ex parte 163 Russell V. Clarke's Ex'rs 81 , 86, 319, 476, 541 V. Loring 481 a V. Sharp 331 345, 383 Rutland v. Brett 790 V. Paige 389 Ryan v. Anderson 153 Rylands v. La Touche 182, 339, 385 Ryes V. Ryes 245, 258, 320, 476 Ryvott V. Barrel! 668 Saekville v. Ayleworth 301, 318 Section Salisbury v. Baggot 775 Salkeld v. Science 457, 659, 693 Saltus V. Tobias 652, 657, 708 Salvidge v. Hyde 274, 278 a, 530, 538 Sampson v. Sweetenham 572 Sanders u. King 651,660,668,676, 687, 727, 732, 797 Sanderson v. Crouch 360 Sandilands ?). Innes 179 Savage v. Lane 264 Saville V. Tancred 221 Savory v. Dyer 41 Saxton V. Davis 271, 278 a, 495, 516 Soholefield u. Heathfield 167 Schroeppel v. Redfield 316 Scott V. Jones 759 b V. NicoU 74 o, 200 V. Stapylton 394 Scurry v. Morse 218 Sedgwick v. Cleveland 342, 349, 351 Selby V. Crew 319, 594 Sellas V. Dawson 383 Sellon V. Lewen 699 Sells V. Hubbell's Adm'r 154 Selyard v. Harris's Executors 128, 214 Semple v. Price 333 Severn v. Fletcher 31 2 Seymour v. Seymour 319 Shackell v. Macauley 280, 530, 553 Shaftsbury v. Arrowsmith 572, 574 a, 674 b Sharp V. Evans .^94 Sharpe v. Taylor 41, 44 Shaver u. Brainerd 216 a Shaw V. Ching 606, 651, 668 V. Coster 291, 292 Sheffield Canal Co. v. Sheffield Railroad Co. 423 a Sheldon v. Fortesque Aland 426 Shelly V. 308 Shepherd v. Gwinnet 193 V. Lloyd 464 V. Roberts 847 Sherman v. Cox 193 Sherrington i'. Smith 635 Sherrit v. Birch 147, 165, 204 Shirley v. Ferrers 304, 308 Short V. Emperingham 530 V. Mercier 578 a Shuttle worth v. Lacock 287 Sidney v. Sidney 28 Sigel V. Phelps 63 Silver Lake Bank v. North 55 Simms v. Guthrie 79 Simons v. Milman 727 Simpson, es ^arte 270 V. Togo 452 a V. Vaughan 178 XXX INDEX TO CASES CITED. Section Sims V. Lj'le 682 Singleton v. Selwyn 541 a V. Singleton 409 Sizer v. Miller 161, 286 V. MuUer 637 a Skeeles v. Shearley 807 Skey V. Bennett 101 Slack V. Walcott 379 Slade V. Eigg 193 Sleeoh's case 167,178 Slinssby v. Boulton 297 V. Hale 409 411, 634 Sloman v. Kelly 607 825, 846 Small V. Atwood 115, 132, 135, 265 a, 726, 853 b Smets V. Williams 502 Smith, ex parte 421 b ■ V. Attorney-General 301 V. Babcock 896, 898 V. Brooksbank 214 a V. Burnham 263, 265 a V. Clarke 875 a V. Clay 410, 421 V. East India Co. 602 a V. Fox 557 V. Hibbard 177 V. Hibernian Mine Co. 78, 87 V. Kay 254 a V. Bead 583, 586 V. Rerle 852, 868 V. Snow 207 c, 212 V. Targett 293 V. Turner 634 V. Turrentine 102 Smyth V. Myers 63 Snead v. Green 847 a Snell V. Hyat 70 Society for Prop. Gospel w. New Haven 469 Society for Propagating Gospel v. Wheeler 65 Sodor and Man, Bishop of, v. Derby 608 Solomons v. Laing 282 Somerville v. Mackay 605, 606 Soulard V. United States 469 Southall V. 521, 522 553, 567, 577, 588 , 591,597 South Carolina Bank v. Case 55 South Sea Co. v. Bumstead 521 Stacey v. Pearson Stackhouse v. Barnston V. Wymondsell 754 Souzer v. De Meyer 688, 699 Spain, King of, v. Machado 232, 509, 544 Spencer «, Wray 354 Sperry v. Miller 821 Spragg V. Corner 390 Spring V. Gray 754 Section 319 751, 756, 757, 759 Stafford v. Bryam 418 V. City of London 541, 746 V. Hewlett 332, 335, 336, 614 Standish v. Kadley 337 a, 412, 421 Stanhope v. Nott 602 Stapilton v. Stapilton 40 Stathamu. HaU 297 a Stearns v. Page 688, 756 a Stephens v. Frost 171, 541, 884 V. Hay 414 Sterry v. Arden 395 Stevens v. Cooper 761 . Minchin 342 Whitbread v. Brockhurst 652, 653, 654, 657 White V. Buloid 395, 632 V. Curtis 274 a, 530 V. Hillacre 101 V. White 271 V. Williams 856 Whitfield V. Faussat 313, 478 Whiting V. Bank of U. States 74 a, 236, 403, 407, 408 a, 634 a V. Mayo 107 V. Rush 838 a Whitley v. Martin ^ 265 a Whitman v. Abemathy 539 a Whitmore v. Oxborrow 99 V. Thornton 563 Whitney v. McKinney 153 Whitworth v. Davis 233, 234, 235, 312, 323, 519 V. Goulding • 316 V. Guagoil 807 a Whorewood v. Whorewood 428 a, 640 Wigley V. Whitaker 402 Wiuord V. Beasley 395 Wilkes V. Rogers 28, 36 Wilkinson «. Beal 40, 41 INDEX TO CASES CITED. XXXlll Section Section Wilkinson v. Fowkes 343 Wood V. Norton 58 V. Henderson 167, 178 V. Rowe 265 V. Parry 213, 544 V. Strickland 653 WiUan V. WiUan 415 V. White 226 6 Willie V. Lu^ 287 V. Williams 200, 207, 209 WLUiams v. Chord 365 Woodcock V. Bennett 36 V. Cooke 372, 621 Woolam V. Hearn 391, 394 V. Douglass 270 Worcester v. State of Georgia 469 V. Kinder 349 Wormald v. De Liele 242, 244 a V. Lee 781 Wormley v. Wormley 229, 542 V. Steward 312, 452 Worthy v. Johnson 271 a V. Whinyates 87 Wortley v. Birkhead 604 638, 648 V. Williams 170, 224, 228 Wray v. Hutchinson 332 V. Wynn 70,319 Wright V. Atkins 41 WiUis V. Evans 266 V. Bluck 511 ti. Parkinson 421 V. Dorset 358 Wilson V. Foster 572, 574 V. Howard 332 V. Grace 70,875 V. Miller 392 V. Lynt 539 a V. Plumptre 529, 567 V. Moore 178 V. Wright Wrottesley v. Bendish 61 V. Todd 616 579 w. Wall 417 Wybourn v. Blount 71 Wilmot V. Maccabe 553, 597 Wych V. Meal 234, 235 Winchester, Bishop of, v. Beavor 189, 193, 351 Winchester v. Paine 156, 193, 194 V. Winchester 421 c Windsor u. Windsor 44 Wing V. Davis 201 Wingfield v. Whaley 146 Winnipissiogee Lake Co. v. Worster 473 Wiser V. Blaohy 77, 100, 104, 141, 176, 203, 406, 413, 414, 421 Wisner v. Bamet 484 Wood V. Dummer 119, 128 V. Duke of Northumberland 161 V. Griffith 351 a V. Mann 266, 333, 417, 604, 805 Wynn v. Doughty 583 V. Williams 759 Wynne v. Callandar 271, 286 V. Jackson 443 Y. Yates V. Hambly 194, 198 Yeaton v. Lenox 279 York, Mayor of, w. Pilkington 98,120, 121, 125, 278 Young V. Keighly 413, 414, 415, 416, 417 W.Lyons 169 EQUITY PLEADINGS. COMMENTAEIES ON EQUITY PLEADINGS. CHAPTER I. INTRODUCTORY CHAPTER. [* § 1. All judicial proceedings require forms. § 2. They produce good, by rule ; evil, only by accident. § 3. The design of the work to give forms, and the principle of their adoption. § 4. The distinction stated between Equity Pleadings and Practice. § 5. The two subjects somewhat blended. § 6. The general topic of the work is Equity Pleadings.] § 1. Hating in a former work treated of the nature, origin, and extent of equity jurisprudence, as administered in England and America, and of the principles by which the jurisdiction in equity is governed and limited, the path is now open for us to direct our inquiries into the forms and modes, in which this re- medial justice is applied to the actual business and concerns of human life, in order to protect and vindicate rights, or to prevent and redress wrongs. It is obvious, that, in every system of juris- prudence, professing to provide for the due administration of pub- lic justice, some forms of proceeding must be established, to bring the matters in controversy between the parties, who are interested therein, before the tribunal, by which they are to be adjudicated. And for the sake of the despatch of business, as well as for its due arrangement with reference to the rights and convenience of all the suitors, many regulations must be adopted, to induce certain- ty, order, accuracy, and uniformity in these proceedings. Hence it will be found, that the jurisprudence of every civilized country, ancient and modern, has established certain modes, in which the EQ. PL. 1 2 EQUITY PLEADINGS. [CH. I. complaints and defences of parties are to be brought before the public tribunals ; and has authorized the latter, by rules and. or- ders, to prescribe the time, the manner, and the circumstances, in which every suit is to proceed, from its first institution to its final determination. § 2. This is emphatically tnie in the jurisprudence of England and America ; and is not only exemplified in the proceedings in suits at common law, but in those also which are governed by the larger and more liberal doctrines of equity. Indeed, in the latter, as well as in the former, there are many rules altogether founded in artificial reasoning, but which, nevertheless, may be affirmed, with few exceptions, to be greatly promotive of public justice, and subservient to private convenience. If, here and there, any of them work an apparent hardship or mischief, it will, on close ex- amination, be found that they also accomplish much general and permanent good ; and in this respect they partake only of the in- firmity of all general rules, which must, in particular cases, give rise to some inequalities, and shut out some individual equities and rights. § 3. The design of the present Commentaries is to present a general, but, at tli'fe same time, an accurate outline of the proceed- ings in courts of equity from the original institution of a suit to its close, and to accompany the same with such explanations and illustrations as may serve to develop the principles on which they are founded, and the reasons by which they are sustained. It will not, indeed, be possible in all cases to ascertain these principles and reasons ; for they are sometimes lost in remote antiquity, and sometimes they depend upon rules of such a purely artificial char- acter, although arising from the exercise of a sound discretion, as to be incapable of any very satisfactory exposition. § 4. The subject naturally divides itself into two great heads, the Pleadings in framing a suit in equity, and the Practice in conducting a suit in equity. By the Pleadings we are to under- stand the written allegations of the respective parties in the suit, that is to say, the written statement of the plaintifi", containing, in a due legal form, the facts of the case on which he grounds his title to relief, or to some equitable interposition or aid from the court ; and the written answer or defence of the defendant to the charges of the plaintiff, either denying them altogether, or admit- ting them, and relying on some other matters, as a bar to the suit, § 1 - 5-] INTEODUCTOEY CHAPTEE. 3 or admitting them, and insisting upon the want of title in the plaintiff to the relief sought, or to the interposition or aid of the court ; and the written reply thereto by the plaintiff.^ By the Practice in a suit in equity we are to understand all the vari- ous proceedings in the suit, whether by the positive rules, or the usage of the court, and whether interlocutory or otherwise, which may become necessary or proper for the due conduct thereof from the beginning to the final determination thereof. § 5. Although, in a general sense, the distinction between the pleadings and the practice in a suit is sufficiently obvious from the foregoing description of their respective characters and objects ; yet it is not easy, even if it be practicable, wholly to separate the considerations belonging to the one from those belonging to the other. The principles which regulate the pleadings are sometimes so intimately connected with the practice of the court, as to the time, the manner, and the circumstances, which affect their intro- duction and use, that any discussion of the former without advert- ing to the latter, would be very deficient in the appropriate details, and imperfect in the just expositions belonging to the subject. Thus, for example, it is the proper office of pleading to ascertain what facts should be charged in the plaintiff's statement of his case ; but, if the facts are imperfectly stated, the time, and man- ner, and circumstances, in which the plaintiff will be permitted to make a more perfect statement of his case, by way of amendment, properly belong to the practice of the court. But a treatise, which ' In Bacon's Abridgment, title, Pleas and Pleading, it is said, that " Pleading in general signifies the allegations of parties to suits, when they are put into a proper, legal form." And again, " Pleading, in strictness, is no more than set- ting forth that fact, which in law shows the justice of the demand made by the plaintiff, or the discharge and defence made by the defendant." Mr. Justice BuUer has given a definition, which has equal terseness and accuracy. " Plead- ing,'' says he, " is the formal mode of alleging that on the record, which would be the support or defence of the party on evidence." Read v. Brookman, 3 T. R. 159. Each of these definitions is equally as applicable to pleadings in equity, %s to pleadings at law. But it may serve to make the real nature of pleadings in equity, in a technical sense, better known, to state, that they con- sist of the formal, written allegations or statements of the respective parties on the record to maintain the suit, or to defeat it, of which, when contested in matters of fact, they propose to ofier proofs, and in matters of law to offer argu- ments to the court. In a popular sense, the oral arguments of counsel, and especially their addresses to juries or to the court, are often called pleadings. But this is not the true, legal sense. 4 EQUITY PLEADINGS. [CH. II. should embrace the subject of the amendment of pleadings, with- out adverting to the time, the manner, and circumstances, under which such amendment could be made, would be manifestly defec- tive in its most important details. § 6. In the present Commentaries, therefore, matters of prac- tice, when mixed up with matters of pleading, will be occasionally introduced, whenever they may serve better to explain the partic- ular topic under consideration. In other respects, these subjects will be successively discussed under separate and independent heads. And in the first place, we shall treat of the subject of Pleadings in Equity ; and this again requires a subdivision into pleadings on the part of the plaintiff, and pleadings on the part of the defendant. The former will naturally constitute the first topic of our inquiries. CHAPTER II. BILLS IN EQUITY. — GENERAL NATURE AND FORM. [* § 7, The first step in an equity suit is the bill. § 8. Informations and bills in equity. § 9. The bill may seek relief; or aid in another suit. § 10. Every bill must state a case within equity jurisdiction. § 11. In its infancy equity jurisdiction very simple. § 1 2. The present parts of the bill grew up by slow degrees. § 13. Talent and experience required to indite bills in equity. § 14. Analogies between Pleadings in equity and other Pleadings. § 16. Bills are original and supplemental. § 1 7. Original bills are those which seek relief, and those which do not. § 18. I. Ordinary bills : bills of interpleader : bills of certiorari. § 19. 2. Bills to perpetuate testimony : bills of discovery. § 20. Bills not original : supplemental : of revivor. § 21. Cross bill; bill of review, &c. § 22. Original bills seeking relief first considered. § 23. General requisites of an original bill for relief. § 24. Need not allege that of which the court takes judicial notice. § 25. Further illustration of the requisites of the bill. § 26. Consists of nine parts. Address ; Introduction. § 27. The stating part. ^ 28. All leading facts, but not all the circumstances, should be stated. § 29. Allegation of confederacy wholly unnecessary. § 30. Not contained in bills against Peers. § 31. Charging part wholly useless as a general thing. § 5 - 7.] BILLS IN EQUITY. 6 § 32. It may defeat the case made in the stating part. ^ 32 a. It may also supply a defect in that part. § 33. It is a modern addition of little value. § 34. The jurisdiction clause is of no avail. § 35. Interrogating part not essential, but may prevent evasion. § 36. Cannot go beyond the stating part. Answer gratis. § 37. Illustration of the extent of interrogations. § 37 a. General allegations qualified by specific ones. § 37 5. Very general statement sufficient on demurrer. § 37 c. It rests with court how far they will enforce offers in bill. § 38. Interrogating part important chiefly in sifting defendant's conscience. § 39. The practice derived from the Civil Law. § 40. The prayer for relief seems necessary. General prayer sufficient. § 41. Writs of injunction and ne exeat must be specially prayed. § 42. General relief must be according to frame of bill. § 42 a. May be prayed in alternative, under restrictions. § 42 b. How such relief should be asked. 5 43. Special prayers important, and difficult to frame. § 44. Prayer for process is usual. Should extend to all defendants. § 45. Origin of the use ofwrit of subpoena in equity. § 46. Sometimes said these parts of a bill mingled together. § 47. Bill signed by counsel, who are responsible for its propriety. § 48. Statement of further progress of the work. § 48 a. Suggestions as to drawing wills.] § 7. When a private party has a case, which he is advised is redressible only by an application to a court of equity, lie com- mences his suit by preferring to the court, having jurisdiction, a written statement of his case, which is called a bill in chancery, or a bill in equity, which is in the nature of a petition to the court, and sets forth the material facts, and concludes with a prayer for the appropriate relief, or other thing required of the court, and for the usual process against the parties, against whom the relief or other thing is sought, to bring them before the court to make due answer in the premises.^ The bill is sometimes called an English bill, when it is addressed to the High Court of Chancery in England, in order to distinguish it from the proceedings in suits within the ordinary jurisdiction of that court as a court of common law, which latter, though now in the English language, were anciently in the French or Norman tongue, and afterwards in the Latin ; whereas bills in chancery were always, or at least from very early times, preferred in the English language.^ ' Mitf. Eq. PI. by Jeremy, 7 ; 3 Wooddes. Lect. 55, p. 367 - 369. ' Mitf. Eq. PI. by Jeremy, 8. See Calendar of Proceedings in Chancery printed by Parliament, in 1827. 1* 6 EQUITY PLEADINGS. [CH. H. § 8. When the suit is instituted on behalf of the Crown or Gov- ernment, or of those who partake of its prerogative (such as idiots and lunatics^) or whose rights are under its particular protection (such as the objects of a public charity,) the matter of complaint is offered to the court by way of information, given by the proper officers of the Crown or Government (as, by the Attorney-General or Solicitor-General,) and not by way of petition.^ When the suit immediately concerns the rights of the Crown or Government alone, these officers proceed purely by way of information.^ When the suit does not immediately concern the rights of the Crown or Government, its officers depend on the relation of some person, whose name is inserted in the information, and who is termed the relator. And as the suit, though in the name of the Attorney or Solicitor-General, is then carried on under the direction of the re- lator, he is considered as answerable to the court and to the par- ties for the propriety of the suit and the conduct of it ; and he may be made responsible for costs (which the Crown or Govern- ment itself is never compellable to pay,) if the suit should appear to have been improperly instituted, or in any stage of it to be im- properly conducted.* Still, however, a relator in such cases is by no means indispensable ; and the Attorney-General may, if he pleases, proceed in the suit without one.^ Sometimes it happens, that the relator has an interest in the matter in dispute, in con- nection with the Crown or Government, of the injury to which he has a right to complain. In such a case, his personal complaint is joined to and incorporated with the information given to the court by the officer of the Crown or Government, and then they form together an information and bill, and are so termed.^ lu- ' Cooper, Eq. PI. 104 ; 1 Mont. Eq. PL ch. 3, p. 401-406 ; 1 Mont. Eq. PI. 81 - 84. , ' Mitf. Eq. PI. by Jeremy, 7, 21, 22, 29; Cooper, Eq. PI. 101-107; 1 Mont. Eq. PL 81, 84, 85, 87. ^ Cooper, Eq. PL 101, 102. * Cooper, Eq. PL by Jeremy, 21-23; Cooper, Eq. PL 1, 99-102, 104, 106 Attorney-General v. Vivian, 1 Russ. K. 236, 237 ; 1 Mont. Eq. PL 85, 86. * In Re Bedford Charity, 2 Swanst. R. 420 ; Mitf. Eq. PL by Jeremy, 22 note (d). ' Mitf. Eq. PL by Jeremy, 22,' 23, 99, 100; Cooper, Eq. PL 1; Attorney- General V. Vivian, 1 Russ. R. 235, 236 ; Attorney-General v. Mayor of Bristol 3 Madd. R. 319; S. C. 2 Jac. and Walk. 299; 1 Mont. Eq. PL ch. 4, p. 87 Sometimes, . in cases of this sort, the Crown is represented by the Attorney- § 8 - 10.] BILLS IN EQUITY. 7 formations, however, differ from bills little more than in name and form, and therefore, the same rules are in general applicable to both.^ Informations respecting charities constitute the most strik- ing exception ; for in these the court will not require the same strictness, either as to parties, or to pleadings, as is ordinarily re- quired in bills. The other peculiarities of informations are too few to justify any distinct examination .^ The subsequent remarks will therefore be mainly confined to the general nature and struc- ture of bills. § 9. It is obvious, that every bill must have for its object one or more of the grounds, upon which the jurisdiction of a court of equity is founded. That jurisdiction sometimes extends to the final decision of the subject-matter of the suit ; sometimes it is only ancillary to the decision of a present suit brought, or of a future suit to be brought, in another court ; sometimes it is merely of a precautionary or preventive nature, to avert meditated or threatened wrong ;^ and sometimes it is merely to require that the parties really interested in a controversy should be compelled to litigate their rights without peril or expense to a mere stakeholder, having no interest therein. The bill may therefore, either com- plain of some injury, which the party,' exhibiting it, suffers, and pray relief according to the injury ; or, without praying relief, it may seek a discovery of matter necessary to support or defend another suit ; or it may seek to preserve or perpetuate testimony ; or it may complain of a threatened wrong or impending mischief, and, stating a probable ground of possible injury, it may pray the assistance of the court to enable the party, exhibiting the bill, to protect or defend himself from such wrong or mischief whenever it shall be attempted or committed.* § 10. But whatever may be the object of the bill, the first and General as plaintiff, and by the Solicitor-General as defendant, in the same suit, where there are conflicting claims between the king and persons partaking of his prerogative or under his peculiar protection. That was the case in Attor- ney-General V. Mayor of Bristol, 3 Madd. R. 319 ; S. C. 2 Jac. and Walk. 294, respecting a charity. Mitf. Eq. PI. by Jeremy, 22, note (6) ; Attorney-Gen- eral V. Vivian, 1 Euss. R. 226. ' Mitf. Eq. PI. by Jeremy, 99, 100; Cooper, Eq. PI. 105, 106; 1 Mont. Eq. PI. ch. 3, p. 81-86. 2 Cooper, Eq. PL 104-107; Barton's Suit in Eq. 25. ' Mitf. Eq. PL by Jeremy, 8. * Ibid. 8 EQUITY PLEADINGS. [CH. II. fundamental rule, which is always indispensable to be observed, is, that it must state a case within the appropriate jurisdiction of a court of equity. If it fails in this respect, the error is fatal in every stage of the cause, and can never be cured by any waiver or course of proceeding by the parties ; for consent cannot confer a jurisdiction not vested by law. And, although many errors and irregularities may be waived by the parties, or be cured, by not being objected to, the court itself cannot act except upon its own intrinsic authority in matters of jurisdiction; and every excess will amount to a usurpation, which will make its decretal orders a nullity, or infect them with a ruinous infirmity. But of this more will be said in another place. § 11. In early times, as might well be supposed, bills were in their structure of great simplicity and brevity. The cases in which resort was then had to equity jurisdiction, were compara- tively few, and the facts were of no great complexity or diffi- culty of detail. The rights of parties depended upon titles exceedingly simple in their nature and origin. The wrongs to be redressed were palpable and direct.. The whole business of human life flowed on in narrow and shallow channels ; and it might be said, almost without a figure, that as the stream moved along with its slow and languid and winding current,' it might be sounded and measured to its very depth and bottom by any common mind. The cause of every interruption in its progress was immediately visible ; and the remedy to be applied was as clear as the ripple of the stream, which indicated it, to the most careless eye. § 12. In some of the most ancient bills, as appears by the records in the Tower in London, the plaintiff did not pray any relief or any process ; but merely prayed the chancellor to send for the defendant, or to examine the defendant ; and in others, in which relief was prayed, the prayer of process was various, sometimes a writ of corpus cum causd, sometimes a subpoena, and sometimes other writs.i Afterwards, the bill assumed a more regular and uniform frame, although it was very unlike that belonging to the present day. In the form alluded to, it contained a statement of the facts of the plaintiff's case, followed by a prayer to the court to grant suitable relief, and, for that purpose, that the subpoena of the court might issue to bring the parties complained of before it. . ' Cooper, Eq. PI. 3, 4. § 10- 13.] BILLS IN EQUITY. 9 This statement and this prayer constituted the whole of the bill, and continued to do so until a comparatively modern period of time, although it is difficult to fix the exact time, when additions began to be made to it.^ These additions must indeed have been gradually incorporated into it, as the progressive increase and complication of the common business of life or the new exigencies of society, created an occasion or necessity for them. And as the system of the remedial justice of courts of equity began to be bet- ter understood, and to be more liberally administered, it was nat- ural that a corresponding refinement in method, and a more elab- orate exposition of every case, should be superinduced into the structure of the bill by the genius, and the learning, and the scho- lastic astuteness of the profession. By degrees the mere naked statement of facts in the bill was succeeded by a string of in- terrogatories, constituting an integral part, (called the inter- rogatory part,) of the bill, the object of which was to sift more thoroughly the conscience of the defendant as to these facts ; and aftei'wards there was added, what is called the charging part of the bill, which was inserted in order to meet the defence expected to be set up, and to obviate its effect by counter alle- gations, which should destroy its validity.^ Still, however, the statement of the case, and prayer of the bill for relief or other- wise, always were, and continue to be to this day, the very substance and essence of the bill.^ The other parts have, in- deed, their appropriate uses and functions ; and when skilfully drawn and judiciously applied become the means of eliciting the truth, and often of saving much delay and inconvenience and expense to the parties.* § 13. Equity pleading has, indeed, now become a science of great complexity, and a very refined species of logic, which it re- quires great talents to master in all its various distinctions and subtle contrivances, and to apply it, with sound discretion and ' Cooper, Eq. PL 4; Partridge v. Haycraft, 11 Ves. 574. " Cooper, Eq. PI. 4. See Hare on Discovery, 223. 2 Cooper, Eq. PI. 4. * Mitf. Eq. PI. by Jeremy, 47; 2 Mont. Eq. PI. 311. Note T. F. — Mr. Bell, (one .of the most experienced counsel in chancery,) in his answers to the inter- rogatories put by the Chancery Commissioners, gave some very interesting views of this subjectjwhich every student would do well to peruse. See, especially, his answers to questions from Q. 5 to Q. 34, in the Parliamentary Report of the Chancery Commissioners, in March, 1826, Appx. p. 1-3. 10 EQUITY PLEADINGS. [CH. H. judgment, to all the diversities of professional practice. The abil- ity to understand wliat is the appropriate remedy and relief for the case ; to shape the bill fully, accurately and neatly, without deforming it by loose and immaterial allegations, or loading it with superfluous details ; and to decide who are the proper and neces- sary parties to the suit ; — the ability to do all this requires vari- ous talents, long experience, vast learning, and a clearness and acuteness of perception, which belong only to very gifted minds.i Without these, diligence and industry will not always ensure suc- cess ; although it may be as truly said, that, without the latter also, genius, however high, will find itself outstripped in the race, and be compelled to pay homage to inferior minds, who may win an easy triumph by steady perseverance against the bold, but irregular, sallies of less wary adversaries. § 14. The pleadings in equity were probably borrowed from the Civil Law, or from the Canon Law, (which is a derivative from the Civil Law,) or from both.^ The early chancellors were for the most part, if not altogether, ecclesiastics, and many of tliem were bred up in the jurisprudence of the Civil and Canon Law ; ^ and it was natural for them, in the administration of their judicial functions in the Court of Chancery, to transfer into that court tlie modes of proceeding, with which they were most familiar. Hence, at almost every step, we may now trace coincidences between the pleadings and practice in chancery, and the pleadings and prac- tice in a Roman suit and in an ecclesiastical suit.* But, as the 1 See Cooper, Eq. PI. i. = Cooper, Eq. PI. 8, 9 ; Gilb. For. Rom. ch. 4, p. 44 ; 3 Reeves's Hist, of the Law, 380 ; Barton, Eq. Suit, 26 ; 3 Black. Comm. 442. ^ 3 Black. Comm. 47. * See 2 Brown, Civ. and Adm. Law, ch. 8, p. 347, &c. Gilbert, in his Forum Romanum, has traced an outline of the proceedings in suits under the Civil Law and in the Canon Law. (Gilbert's Forum Romanum, ch. 2, p. 20, &c., ch. 3, p. 29, &c., ch. 4, p. 41, &c.) The whole is too long for insertion in this place, but the following extracts, applicable to the pleadings, may be useful. " When the actor and reus came before the prsetor, then the actor did actionem edere ; and, anciently, this was done by showing the cause of his action to the pr^tor, who thereupon gave him out his proper action. But afterwards the actor used to have his cause of complaint ready in writing, to oflFer to the prsetor, which they called the libel, and with it produced such contracts or instruments, as were the foundation of his title or complaint ; and then the rem was obliged to give bail to appear at the third day afterwards, which was called dies perendinus, and this time was given him to consider whether he would contest or not at the third § 13, 14. j BILLS IN EQUITY. 11 Court of Chancery attained more extensive jurisdiction, and exer- cised more diversified powers, new modes of proceeding were from time to time adopted, which were better fitted for its own peculiar purposes ; and the pleadings and practice in chancery have now become a distinct and independent system. day. If he contested the suit, .there were forms of questions and answers, which mutually passed between the actor and reus, in which questions the actor affirmed his right, and the reus denied it, and this was called contestalio litis. Likewise, before the praetor, the reus, without contesting the suit, might put in exceptio decli- natoria, as also he might desire, that the actor might be sworn, that the suit was not eommenced out of malice ; as the actor might have the reus sworn, that he did not defend it out of malice ; and these oaths were called juramenta calumnice post litem contestatum. The prsetor gave them judges, and the libel contested was brought before the the judges, and upon this libel the actor put in positions, to which the reus was obliged to put in his answer, that so they might supersede the necessity of proving, what was confessed by the reus. But, if the reus denied any part of the positions, then the part that was denied was formed into what they called arliculi ; and upon these arliculi interrogatories were framed, to be exhibited to the witnesses. But the witnesses were not obliged to answer any interrogatory which was not framed out of one of the articles. Upon these inter- rogatories, one of the judices dati himself examined ; and the depositions were taken in writing by a notary, or one of the judge's clerks. When all the wit- nesses were examined, both for the actor and reus, then they published the depo-' sitions, and gave out copies of them to both parties ; upon which the juris periii ei patroni made the orations for their clients before the judges, and then the judges pronounced their sentence, which was given to the prsetor to be ex- ecuted. " But, to describe this more fully, though according to the ancient form, any Roman, who had a demand against another, might drag him to justice, ohtorto collo, as they called it ; yet that being found inconvenient, they came to a new method, which was, that they should first edere actionem before the prsetor ; and then the prtetor gave him out his proper action, and a liberty to cite the party, and he either cited him by himself, or by a messenger ; and then the defendant was either obliged to go along with his adversary, or give security to appear ; and if he did neither, the actor might obtorto collo force him before the prsetor. When the reus came in before the prajtor, the actor did produce his cause of complaint, which was sometimes called the second libel ; for the first libel was in order to obtain the power of citing, and was called the libellus supplex ; and the second, to show the reus what he was to answer, was called the libellus actionis aut meritorius ; and then the actor asked of the praetor polestatem agendi, that is, the power to implead the defendant, and formulam, containing the form of the action, a,nd j'udicem, who was to hear and determine the matter. " And, for that end, the actor did summarily show before the prajtor, how the action accrued ; and, if it was founded on any instrument, he produced it ; if not, a witness before the pr^tor. He, likewise,.the reus proposed his exceptions either declinatoricB, also called dilatorice, or peremptorim ; though the peremptorice might 12 EQUITY PLEADINGS. [CH. 11. [* § 15. It may be well here to point out some of the peculiari- ties of particular classes of bills in equity.] § 16. The most general division of bills is into those which are original, and those which are not original. Original bills are those which relate to some matter, not before litigated in the court by the same persons, standing in the same interests.^ Bills not origi- also be put in before the judge. And thus the cause agebatur summatim, as they call it, and the prastor determined whether they should proceed in judgment or not. If the pr^tor adjudged they were to proceed, then the reus was either to yield or give up the matter in demand or contest it, which was the litis contestatio, and was closed before the praetor. * "When the prtetor had given a judge, he was' to make out a citation against the reus to appear before him, and there the first act was for the defendant to answer the positions on the libel. After those positions were answered, the next citation was upon the articles, upon which the defendant was to bring in his cross interrogatories to the witnesses, who were to be examined on the part of the plaintiflF upon the articles, as likewise any witnesses of his own which he had to produce on the matter of the articles. And at that act there was given a proba- ' tory term, within which all witnesses were to be examined, and the depositions afterwards to be published. One of the judges, who was to hear the cause, was one of the persons who examined the witnesses, and reported as to their credit, as, whether they answered truly, or only as they were instructed. The third act was the citation after the probatory term was over, and publication had passed, in order to hear judgment; so that, in every judiciary act, there was need of a citation, lest they should proceed parte inauditd, which they thought to be unjust, and contrary to the law of nature." Again : " And the modern libel of the canonists is formed from the libel, the positions, and the articles thrown into one, and now called lihellus articulatw, for despatch ; for so many acts are not now necessary, as were of old, when the liius contestatio was before the prastor, and the positions and articles before the judge. And in this libel they conclude with clausulce salutares sive salvantes, which pray relief omni meliori modo. To this libel, if the defendant puts in a negative answer, that is now reckoned a sufficient litis contestatio to proceed to proof upon ; though, anciently, the manner was for the plaintiff to come in, and briefly affirm his libel, by way of rephcation. " With us the bill is the libel, and the prayer of general relief, according to equity and good conscience, is in the nature of the salutary clause, and the narra- tive part of the bill is in the nature of the positions, and the interrogatory part in the nature of the articles, and the prayer of relief is after the manner of the ancient libel." Mr. Brown, in his work on the Civil and Adm. Law, (2 Bro. Civ. and Adm. Law, ch. 8, p. 347, &c.,) has traced out some of the coincidences between the proceedings in the Civil Law and in Equity, and shown, that some of the rules of the latter, which would otherwise seem merely arbitrary, are founded upon the natural course of practice under the former. ' Mitf. Eq. PI. by Jeremy, 33 ; Cooper, Eq. PI. 43. §15-17.] BILLS IN EQUITY. 13 nal are those wliicli relate to some matter already litigated in the court by the same persons, and which are either an addition to, or a continuance of an original Jsill, or both.^ There is another class of bills, which is of a mixed nature, and sometimes partakes of the character of both of the others. Thus, for example, bills brought for the purpose of cross litigation, or of controverting, or suspend- ing, or reversing some decree or order of the court, or of obtaining the benefit of a former decree, or of carrying it into execution, are not considered as strictly a continuance of the former bill, but in the nature of original bills.^ And, if these bills require new facts to be stated, or new parties to be brought before the court, they are so far strictly of the nature of s\applemental bills .^ For all the objects of the present work, this last class may be treated as included in that of bills not original.* § .17. Original bills may be again divided into those which pray relief, and those which do not pray relief.^ In a broad and gen- eral sense, all bills in equity may be said to pray relief, since they seek the aid of the court by some decree or decretal order, to rem- edy some existing or apprehended wrong or injury. But in the sense, in which the words are used in courts of eqiiity, such bills only are deemed bills for relief, us seek from the court in that very suit a decision upon the whole merits of the case set forth by the plaintiff, and a decree, which shall ascertain and protect present rights, or redress present wrongs. All other bills, which merely ask the aid of the court against possible future injury, or to sup- port or defend a suit in another court of ordinary jurisdiction, are deemed bills not for relief.^ And this distinction is not merely formal ; but, as we shall presently see, may involve very important consequences ; for, if a plaintiff should by mistake ask for relief, when he is not entitled to it, his bill may be demurrable, and thereby be, for the purposes of jurisdiction, unmaintainable P ' Mitf. Eq. PI. by Jeremy, 33 ; Cooper, Eq. PI. 43. = Mitf. Eq. PI. by Jeremy, 35 ; Cooper, Eq. PI. 44, 62. 3 Mitf. Eq. PI. by Jeremy, 96; 97 ; Cooper, Eq. PI. 100. * Lord Redesdale has treated this class separately. Mr. Cooper has treated it as belonging to the class of bills not original. Mitf. Eq. PL by Jeremy, 83, 35. 80; Cooper, Eq. PL 62. * Mitf. Eq. PL by Jeremy, 34 ; Cooper, Eq. PL 43, 44. » See Mitf. Eq. PI. by Jeremy, 33, 34 ; Cooper, Eq. PL 43, 44. ' Post, § 312. EQ. PL. 2. 14 EQUITY PLEADINGS. [CH. 11. § 18. Original bills praying for relief may be again divided into three kinds. (1.) Bills praying the decree or order of the court, touching some right claimed by the party exhibiting the bill, in opposition to some right, real or supposed, claimed by the party, against whom the bill is exhibited, or touching some wrong done in violation of the plaintiff's right.^ This is the most common kind of bill. (2.) Bills of interpleader, where the person exhibit- ing the bill claims no right in opposition to the rights claimed by the persons, against whom the bill is exhibited, but prays the de- cree of the court, touching the rights of those persons, for the safety of the person exhibiting the bill.^ (3.) Bills of certiorari, which pray a writ of certiorari, in order to remove a cause from an inferior court of equity, for the purpose of having it further proceeded in, and decided in the superior court of equity, to which the process is returnable.^ This last bill is of rare (if any) use in America, and is not of very frequent occurrence in England. § 19. Original bills, not praying relief, are of two kinds. (1.) Bills to perpetuate the testimony of witnesses, or to examine witnesses ) ; Barton's Suit in Eq. 36 ; Van Hey. Eq. Drafts. 6. 1 Mitf. Eq. PI. by Jeremy, 44 ; Cooper, Eq. PI. 10, 11 ; Barton's Suit in Eq. 36, and note ; 1. Mont. Eq. PI. 7S ; Bateman v. Willoe, 1 Sch. & Left. 204 ; Chase v. Palmer, 25 Maine, 341. * The 21st Kule of the Equity Rules of the Supreme Court of the United States, January Term, 1842, applies to the confederacy, the charging, and the jurisdiction parts of the bill, and is as follows : " The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usually called the common con- federacy 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 defendant is supposed to intend to set up by way of defence to the bill ; also, what is commonly called the jurisdiction clause of the biU, that the acts complained of are contrary to equity, and that the defendant is without any remedy at law ; and the bill shall not be demurrable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid by counter-averments, at his option, any matter or thinor, which he supposes will be insisted upon by the defendant, by way of defence 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 enti- tled, and also shall contain a prayer for general relief; and if an injunction, or a writ' of ne exeat regno, or any other special order pending the suit, is required, it shall also be specially asked for." ' Mitf. Eq. PI. by Jeremy, 44; Cooper, Eq. PI. 10; 3 Wooddes. Lect. 55, p. 368, 369. Post, § 845. 28 EQUITY PLEADINGS. [CH. E of the principal ends of an answer upon the ^art of the defendant is, to supply proof of the matters necessary to support the case of the plaintiff; and it is therefore required of the defendant, either to admit, or to deny, all the facts set forth in the bill, with their attending circumstances, or to deny having any knowledge or in- formation on the subject, or any recollection of it, and also to de- clare himself unable to form any belief concerning it. And this he ought to do fully and explicitly, even though no special inter- rogatories should follow in the bill.^ But, as experience lias proved, that the substance of the matters stated and charged in a bill may frequently be evaded by answering according to the let- ter only, it has become a practice to add to the general requisi- tion, that the defendant should answer the contents of the bill, a repetition, by way of interrogatory, of the matters most es- sential to be answered, adding to the inquiry after each fact, an inquiry of the several circumstances, which may be attendant upon it, and the variations, to which it may be subject, with a view to prevent evasion, and compel a full answer.^ Hence it is called the interrogating part of the bill, since it questions the defendant as to the truth of the several statements and charges in the bill.^ ^ Cooper, Eq. PI. 11, 12. = Mitf. Eq. PI. by Jeremy, 44,45; Barton's Suit in Eq. 37, and note (2) ; Cooper, Eq. PI. 12. = Barton's Suit in Eq. 28-37, and note ; Cooper, Eq. PI. 12. The usual for- mulary is, " To the end, therefore, that the said A. B. and the rest of the con- federates, when discovered, may, upon their several and respectives corporal oaths, full, true, direct, and perfect answer make, to all and singular the matters hereinbefore stated and charged, (or, to all and singular the premises, or, to all and singular the charges and matters aforesaid,) as fully and particularly, as if the same were hereinafter repeated, and they thereunto distinctly interrogated (or, as fully in every respect, as if the same were here again repeated, and they thereunto particularly interrogated) ; and that not only as to the best of their respective knowledge and remembrance, but also as to the best of their several and respective information, hearsay, and belief (or, according to the best of their respective knowledge, information, and belief) ; and more especially, that they may answer and set forth whether, &c., or they may set forth and discover whether they do not know, have heard, or are informed, and in their conscience believe that," &c., &c. Van Hey. Eq. Drafts. 7 ; Barton's Suit in Eq. 37 ; 1 Mont. Eq. PI. 78, note (i). In the ancient forms, the bill, after the general prayer, that the defendants may upon oath make a full, true, and perfect answer to all the charges and matters contained in the bill, closed with a prayer for relief and process without putting any special interogatories, as this general § 35 - 37.] BILLS IN EQUITY. 29 § 36. The interrogating part of the bill being origin ally^designed and used to compel a full answer to the matters contained in the former part of the bill, it must be founded on these matters. Therefore, if there is nothing in the prior part of the bill to war- rant a particular interrogatory, the defendant is not compellable to answer it. ' This rule is indispensable for the preservation of due form and order in the pleadings, and particularly to keep the answer to the matters put in issue by the bill.^ When, therefore, a question arises upon the sufficiency of the answer, we are to ex- amine and see whether the allegations in the bill justify the inter- rogatory, and of course impose the necessity of answering it ; for the interrogatory part must be construed according to the alleging part, and is not to be considered more extensive than the proposi- tions, out of which the interrogatories arise.^ But although the defendant is not bound to answer an interrogatory, which does not grow out of the antecedent matter stated or charged in the bill, yet if he does answer it, and the answer is replied to, the matter of the interrogatory is deemed to be put in issue, and the infor- mality is cured.^ § 37. But a variety of questions may be founded on a single requisition was supposed sufficient to compel a full answer. Barton's Suit in Eq. 37, note (2). See the 42d, 43d, and 44th of the Equity Rules of the Supreme Court of the United States, January Term, 1842, cited Post, § 846, note. ' Mtf. Eq. PL by Jeremy, 45 ; Cooper, Eq. PL 12 ; Gilb. For. Rom. 91, 218 ; Wilkes V. Rogers, 6 Johns. R. 566 ; Muckleston v. Brown, 6 Ves. R. 62. It is also indispensable, that the interrogatory part of the bill should coincide with the stating and charging part ; for, if a plea is put in, its validity will be heard with reference to the stating and charging part, and not with reference to the interrogatory part, if they differ. Clayton v. Earl of Winchelsea, 3 Younge & CoU. R. 683. Post, § 846. 2 Muckleston v. Brown, 6 Ves. R. 62 ; Cooper, Eq. PL 62 ; Attorney-General V. Whorwood, 1 Ves. R. 538; Bullock v. Richardson, 11 Ves. R. 375, 376; Mechanics Bank v. Levy, 3 Paige, R. 606 ; James v. McKernon, 6 Johns. R. 543 ; "Woodcock v. Bennett, 1 Cowen, R. 734. Ante, § 28. Post, § 853. ' Attorney-General v. Whorwood, 1 Ves. R. 538, 539. This proposition is fully supported by Lord Hardwioke in Attorney-General v. Whorwood, 1 Ves. R. 538, 539. It is immediately added : " For a matter may be put in issue by the answer, as well as by the bill, and if replied to, either party may examine to it." — Ibid. The importance of having matters properly put in issue is strik- ingly illustrated by the rule, that even an admission of a fact in the answer, will be of no avail to the plaintiff, unless it is put in issue by the bill. Gresley on Evid. 23. 3* 30 EQUITY PLEADINGS. [CH. II. charge inrthe bill, if they are relevant to it ;^ and, under an alle- gation of a fact, interrogatories may be put as to the incidental circumstances, although they may not as to any distinct subject.^ Thus, for example, if there is a general charge, that money has been paid as the consideration of a contract, that general charge will entitle the plaintiff to put all questions upon it, which are material to make out, that it was paid, how, when, where, by whom, on what account, in what sums, &c., &c. ; and it is not necessary to load the bill by adding to the general charge, that it was paid, all the circumstances, in order to justify an interrogatory as to the circumstances.^ So, if a bill is filed against an executor for an account of the personal estate of the testator, upon the single charge, that he has proved the will, may be founded every in- quiry, which may be necessary to ascertain the amount of the estate, its value, the disposition made of it, the situation of any part remaining undisposed of, the debts of the testator, and any other circumstance leading to the account required.* [* § 81 a. All equity pleadings, as well as those at law, are to be taken most strongly against the pleader ; and where the bill con- tains general and specific allegations, as» to the same matter, the general allegations will be referred to the particular and specific ones.^ § 376. But where the bill alleges an absolute conveyance of an equity of redemption on the faith of a verbal promise to reconvey, on being paid the price, averring that the effect of the agreement was so, but not setting out the terms of the agreement, either toti- dem verbis, or in substance, except in a general way, it was held there was a sufficient allegation of the promise, and that the court could not say, on demurrer, that there could be no relief.^ > Mitf. Eq. PI. by Jeremy, 45; Cooper, Eq. PI, 12; Faulder v. Stuart, 11 Ves. R. 296-301 ; Bullock v. Kichardson, 11 Ves. R. 375. ^ Ibid. ; Ante, § 28. = Faulder v. Stuart, 11 Ves. R. 296, 302 ; Bullock v. Richardson, 11 Ves. E. 375; 1 Grant, Ch. Pr. 37. ' Mitf. Eq. PI. by Jeremy, 45 ; Cooper, Eq. PI. 13 ; 1 Mont. Eq. PI. 79, and note (s). I have 'here used the very words of Lord Redesdale (which are else- where quoted as direct authority to this point) ; but it seems to me, that the proposition is stated too broadly, and that there should be a charge, not only that the executor had proved the will, but that he had received assets, in order to found the interrogatories. See Barton's Suit in Eq. 32-36. [* ' Ellis V. Colman, 25 Beavan, 662. * Morrison v. Morrison, 4 Drew. 315. , § 37, 38.] BILLS IN EQUITY. 31 § 37c. In many cases, where bills in equity are instituted, the plaintiff's claim is based upon an acknowledgment of an existing prior right in one or more of the defendants, as where the mort- gagor, or a subsequent mortgagee brings a bill to redeem a prior mortgage. In such cases, it is common to make an offer of pay- ing into court the amount of the acknowledged prior claim. There are many other cases where the plaintiff makes certain offers in his bill. Those offers, if accepted, result, at once, in a decree by consent, and discontinuance. But if not acceded to by the party to whom made, it rests, ultimately, in the discretion of the court, whether they will enforce against the plaintiff, the offer made in his biU.i] § 38. It is clear from what has been already said, that the in- terrogating part of the bill is not absolutely necessary ; because, if the defendant fully answers to the matters of the bill, with their attendant circumstances, or fully denies them in the proper man- ner on oath, the object of the special interrogatories is completely accomplished. In the old forms of bills there accordingly were no special interrogatories.^ But from the considerations already mentioned, the insertion of special interrogatories is often highly useful to sift the conscience of the defendant, and is almost univer- sal in practice, except in amicable suits .^ In truth, without such 1 Knight V. Bowyer, 2 D. G. & J. 421 ; 23 Beavan, 610.] ^ Partridge v. Haycroft, 11 Ves. R. 574; Barton's Suit in Eq. 37, note; Ante, § 12; Cooper, Eq. PI. 11. ' Cooper, Eq. PI. 11, 12 ; Gordon v. Gordon, 3 Swanst. R. 472. The late Mr. Bell, (one of the most eminent counsel in chancery,) in his examination before the Chancery Commissioners, gave the results of his own experience in a very marked manner. The following questions and answers, though long, may not be without use to dispel some prejudices on the subject, as well as to forewarn young practitioners of their true duty. " Q. 4. — Did you, in the course of your practice, ever occupy yourself in the consideration, whether any alteration could be usefully made in the form of chan- cery pleading ? — I have turned the matter in my mind, and particularly in con- sequence of this commission. " Q. 5. — What has occurred to you upon that subject? — It does not appear to me that any alteration can be made in the form of our pleadings to much advantage. There is an objection, which has been generally raised, that a bill is a story thrice told, which is not very correct. That the interrogating part is a repetition of the bill, thrown into the- shape of interrogatories, is in some measure true, and a thing which I do not see how it is possible to avoid without very great inconvenience, unless it is in amicable causes. In amicable causes, where both parties only mean to state the fact fairly and candidly, the interrogating part 32 EQUITY- PLEADINGS. [CH. IL interrogatories, it would be impracticable, in many cases, to ex- tract from a reluctant defendant the facts and circumstances, so as to justify any decree. may be omitted, and I frequently have myself omitted it, or only put a few inter- rogatories, applicable to those defendants over whom I had no particular control, and to whose counsel I could not speak on the subject. " Q. 6. — From your experience, you seem to consider, that where there has been a just complaint of the prolixity of chancery pleadings, it has been rather owing to the negligence or inattention of the pleader than to the form of plead- ing ? Not so much to their negligence or inattention as to the nature of the bill; I allude particularly to the intention of the charging part not being properly understood ; I have fallen into that error myself in my younger days. " Q. 7. Do you think it would be possible to adopt any rule with respect to amicable suits ; or must the practice in that respect be left to the discretion of the pleader? — I think it must be left in the discretion of the pleader. 11 Q. 8. — In general, in the present form of bills, does not the interrogating part consist of inquiries as to every fact before alleged, with an interrogation at the end of each, to this effect : whether it be not true as stated, or in some, and what other manner ? — Those are not the words commonly used. The pleader is obliged to vary the manner of the question. It is very difficult to explain, unless a man is trying his skill as a draftsman against an unwilling defendant, how difficult it is often to extract the truth. I am certain in such cases the truth could not be extracted, except by very particular interrogatories. " Q. 9. — Do you then apprehend, that it would not answer the same effect, if a form of words could be devised, generally referring, once for all, to the several matters before stated, and calling upon the defendant to answer them, not only circumstantially, but to speak to any variance, within his knowledge or belief, from the circumstances, as stated ? — I do not think it would be possible to frame any set of words, which would answer that purpose, when we have an unwilling defendant to deal with. " Q. 10. — Is it not, in your apprehension, a general and standing rule in all courts of justice, without its being so expressed, that a man, who is called upon, to answer any matters stated against him, shall answer them in the way pointed out, not according to the circumstances as stated, but according to any variation of circumstances, not affecting the substance of what is so charged ? — I believe that is what every court of justice would expect of an honest man, giving his testimony in any shape whatsoever ; but, unfortunately, in the Court of Chancery, we have very often to deal with men who are not men of that description. Besides that, very often the defendants are so ignorant, and sometimes so prejudiced with their views of the case, that without a wish to disguise the truth, they will look at and consider the allegation in a very different way from that in which they would if they were indifferent persons ; and therefore rather state their own view of the case, than give a direct answer, if no question is put. " Q. 11. — If any particular question should be omitted in the interrogating part of a bill, or should not be put with sufficient precision, is it sufficient for the defendant, when challenged for not answering with sufficient particularity, § 38, 39.] BILLS IN EQUITY. 33 § 39. The practice of putting special interrogatories seems to have been derived from the Civil Law. By that law, when the plaintiff had put in bis positions or narrative of his case, the de- to allege, that the question was no more particular than his answer ? — That is a question on which I have always had a very great doubt and difficulty ; I never could bring my mind completely to any general rule upon the subject. When arguing exceptions before the master, the master has frequently said, It is your fault that you have not gone further ; your interrogatories should be much more particular. "Q. 12. — Supposing the rule of the court to be fixed one way, that a man shall not avail himself of any want of particularity in the question, to cover any want of particularity in his answer, do not you suppose such a rule would go a great way to prevent the necessity for such particular interrogatories ? — I do not think it would ; and one reason for thinking so is, I conceive that it has been tried to a great extent ; for in some of the old orders there are declarations ex- pressly made, that no person is to answer so that his answer should be a negative pregnant, yet these rules seem not to have answered the purpose. They have always had recourse back to the old interrogatories ; and no person, but one who has been in the constant habit of preparing pleadings, can be aware of the diffi- culties which are met with, even in obtaining instructions from a client. I have frequently been obliged to say to my client, ' You see the interrogatory is put in this shape ; you must answer it in this shape ; it is not sufficient that you an- swer generally.' I have more than once had it said to me, ' I cannot answer differently.' ' Very well. Sir ; then if you try another exception, the necessary consequence is, you may be in the Fleet until you have answered it.' Then, when it has been brought to that, I have got an answer, and a very material one. ~ " Q. 13. — Do you apprehend, that the same warning, given in the same man- ner, as to consequences, that would result from a general rule of the court, would not have the same effect ? — I do not think it would ; unless the gentle- man, who put the question, was to do the same thing which the plaintiff's counsel now does ; that is, sit down and put it in the shape of an interrogatory, and say, ' These are the words in which the question is put ; do you now tell me how you answer to those particular words.' Besides, counsel seldom see the de- fendants. " Q. 14. — Do you think it would not be sufficient to inform him, that that is the way in which the court would consider the question, and that they would require an answer, as if the question had been so put, under their general rule ? — I do not think it would ; I can mention a very strong instance, which occurred to myself. There was the same question put in rather a different manner, in two different part's of the bill. In the instructions for answer to the interroga- tories, in one place it was answered directly contrary to what it was in the other. The defendant was a professional man, if I recollect right, whose answer I was preparing. When I first saw him upon his answer, he was very much surprised to find that 1 had answered the question in one place different from his instruc- tions. I sat down with him to peruse the answer, and when we came to the first 34 EQUITY PLEADINGS. [CH. II. fendant was to put in his contestations or negations of those posi- tions ; and the plaintiff had liberty to examine the defendant upon interrogatories to supersede the necessity of proof. These were called the libellus nrticulatm; which was generally put in after the first act, or proceeding, where the defendant had answered the positions.^ In chancery the positions and the libellus articula- tus are thrown into one bill. But still they must, as in the Civil Law, relate the one to the other ; and hence the rule, that the in-* terrogatories must arise out of the facts alleged in the bill, may be readily traced back to its Eoman source.^ § 40. The eighth part of the bill is the prayer for relief. This of course must vary according to the circumstances of the partic- ular case, and the nature of the relief sought.^ The usual course is for the plaintiff in this part of the bill to make a special prayer question, I read to him the question, and I said, ' Now your answer which you have written in the margin, is to this effect; I will reduce it into technical lan- guage ; is that true ? ' ' Certainly, it is true.' We went through the answer, and then at last dame to the other passage : ' Now,' said I, ' this is your language to this passage ? ' ' Yes, it is.' Then I said, ' We will turn it into technical- language.' And I went on with the answer : ' Now, if you please, we will return back, and compare the two passages ' (which I had put on a separate piece of paper) ; ' have the goodness to read them, and let me now know which you wish to stand.' He took them,' and read them, and they were a palpable contradiction to each other. He thanked me for my attention to the situation in which he would have been, and altered the one, as the fact was. Now, that gentleman, I believe, did not wish to mislead me ; but his attention being directed at one time to one view of the case, and at another period to another view of the case, he had fallen into an unintentional mistake ; and I am persuaded that, if the in- terrogatories are not put pointedly, there will be many mistakes of that kind. If those mistakes did not occur, it would very frequently happen, that even if a party wished to state a fact as well as he understood it, you would not get at the whole truth, unless you put the question to him in detail. In bills which are chiefly statements of deeds, there would be very little difficulty ; but, whenever a pleader comes to a complicated statement of facts, it is necessary to be very precise in the interrogatories." Report of Chancery Commissioners, 9th March, 1826, Appx. p. 1, 2. ' Gilb. For.' Rom. 90 ; Ante, § 14, and note. The proceedings in the ecclesi- astical courts bear a close resemblance to those of the Civil Law. "In the ecclesiastical courts," says Mr. Hare, " where the defendant is likewise re- quired to make an answer or discovery upon oath, the answer is in a wholly distinct instrument from the responsive allegation, which contains the defence." Hare on Discov. 223. « Gilb. For. Rom. 90, 91 ; Id. 21 - 24, 26, 27, 44, 45 ; Ante, § 14, and note. ' Mitf. Eq. PI. by Jeremy, 45 ; 3 Wooddes. Lect. 55, p. 369. §39-41.] BILLS IN EQUITY. 35 for the particular relief, to which he thinks himself entitled, and then to conclude with a prayer of general relief at the discretion of the court. The latter can never be properly and safely omit- ted ; because if the plaintiff should mistake the relief, to which he is entitled in his special prayer, the court may yet afford him the relief, to which he has a right, under the prayer of general relief, provided it is such relief as is agreeable to the case made by the biU.^ But if there is no prayer of general relief, then if the plain- tiflf should mistake the relief, to which he is entitled, no other re- lief can be granted him, and his suit must fail, at least unless an amendment of the prayer is allowed.^ § 41. It has been said, that a prayer of general relief, without a special prayer of the particular relief, to which the plaintiff thinks himself entitled, will be sufficient, and that the particular relief,' wliich the case requires, may at the hearing be prayed at ' Mitf. Eq. PL by Jeremy, 38, 45 ; Cooper, Eq. PI. 13, 14 ; Barton's Suit in Eq. 40, 41, and notes; Wilkinson v. Beal, 4 Madd. K. 408 ; Beaumont v. Boul- bree, 5 Ve.s. 495 ; Hiern v. Mill, 13 Ves. 119, 120 ; English i;. Eoxall, 2 Peters, K. 595 ; Hobson v. McArthur, 16 Peters, 195 ; Danforth v. Smith, 23 Verm. 217 ; Hilleary v. Hurdle, 6 Gill, 105 ; Scudder v. Young, 25 Maine, 153. The usual form of the prayer is, " To the end, therefore, that the said defendant and his confederates, &c., may, upon their several and respective corporal oaths, &c. &c. (stating the interrogatory part), and that the said defendant may come to a just and fair account, &c. &c. (stating the particular relief asked), and that your orator may have such further and other relief in the premises, as the nature of his case shall require, and as to your lordship (or your honors) shall seem meet; (or, that your orator may be further and otherwise relieved in the premises according to equity and good conscience.") See 1 Mont. Eq. PI. 79, note (i) ; Van Hey. Eq. Drafts. 8 ; Barton's Suit in Eq. 40, 41 ; 3 Wooddes. Lect. 55, p. 369 ; Cooper, Eq. PI. 14 ; English v. Foxall, 2 Peters K. 595 ; Cockerell v. Dickens, 3 Moore, Priv. Coun. K. 98, 113. ^ Cooper, Eq. PI. 14; Cook v. Martyn, 2 Atk. 2; Palk v. Clinton, 12 Ves. 62-65 ; Weymouth v. Boyer, 1 Ves. jr. 426 ; Wooddes. Lect. 55, p. 372, 373. In the cases of bills for charities, and of bills on behalf of infants, courts of equity will grant relief upon any matter arising upon the state of the case, though it be not particularly mentioned and insisted on and prayed by the bill. Stapilton v. Stapilton, 1 Atk. R 6 ; Attorney-General v. Jeanes, 1 Atk. K. 355 ; Attorney-General v. Gleg, 1 Atk. R. 356 ; Attorney-General v. Scott, 1 Ves. 418 ; Attorney-General v. Brooke, 18 Ves. 325 ; Attorney-General v. Vivian, I Russ. E. 235 ; Barton's Suit in Eq. 40, note (J). These cases, therefore, con- stitute exceptions to the general rule. See also Attorney-General v. Jackson, II Ves. 371, 372 ; 2 Mont. Eq. PI. note B. X. p. 120, 121 ; Mitf. Eq. PI. by Jeremy, 27, 39, and note (i) ; Id. 55, note (m) ; Colton v. Ross, 2 Paige, R. 396. 36 EQUITY PLEADINGS. [CH. IL the bar.'' This, as a general rule, may be true ; but it is not uni- versal. Thus, for example, an injunction will not ordinarily be granted under a prayer for general relief; but it must be ex- pressly prayed ; because the defendant might, by his answer, make a different case under the general prayer, from what he would, if an injunction were specifically prayed.^ So, a writ of ne exeat regno will not ordinarily be granted unless expressly prayed for in the bill.^ § 42. But, even when a prayer of general relief is sufficient, the special relief prayed at the bar must essentially depend upon the proper frame and structure of the bill ; for the court will grant such relief only, as the case stated will justify ; and will not ordi- narily be so indulgent, as to permit a bill framed for one purpose to answer another, especially if the defendant may be surprised or prejudiced thereby.* Thus, if. a bill is brought for an annuity, or 1 Mitf. Eq. PI. by Jeremy, 38, 39 ; Cooper, Eq. PI. 14 ; Barton's Suit in Eq. 40, note (1) ; Wilkinson v. Beal, 4 Madd. R. 408 ; Cook v. Martyn, 2 Atk. 3 ; Grimes v. French, 2 Atk. 141 ; Topham v. Constantine, Tamlyn, K. 135 ; Man- aton V. Molesworth, 1 Eden, E. 26, and note (6) ; Mitf. Eq. PI. by Jeremy, 46, note (x); 3 Wooddes. Lect. 55, p. 372, 373. — In Cook v. Martyn, 2 Atk. 3, Lord Hardwicke is reported to have said : " Praying general relief is sufficient, though the plaintiff should not have been more explicit in the prayer of the bill." And Mr. Robins, a very eminent counsel, used to say, general relief was the best prayer next after the Lord's Prayer. In Dormer v. Fortescue, 3 Atk. 132, Lord Hardwicke quotes the same expression, and attributes it to a Mr. Dobbins. Quaare, which is the correct name ? Mr. Eden, in his note to Mana- ton V. Molesworth, 1 Eden, K. 26, note (6), says it was Mr. Robins; and Lord Northington, in the same case, quotes the saying as a common one. ' Savory v. Dyer, Ambl. 70, note; Wright v. Atkins, 1 Ves. & B. 314; 2 Story, Comm. on Eq. Jur. § 862,'863 ; Eden on Injunct. ch. 3, p. 48 ; Id. ch. 15, p. 321 ; 1 Smith, Ch. Pr. 45. And it seems, that the prayer for an injunction must not only be in the prayer of relief, but in the prayer of process. Wood v. Beadell, 3 Sim. R. 273 ; Hinde, Ch. Pr. 17, 18. The usual form of praying is, "May it please your lordship (or your honors), the premises considered, to grant unto your orator, not only his Majesty's most gracious writ of injunction, issuing out of and under the seal of this honorable court to be directed to the said (the defendant), to restrain him, &o. &c. against your orators, touch- ing any of the matters in question ; but also his Majesty's most gracious writ of subpoena to be directed to the said (the defendant,") &c. &e. Hinde, Ch. Pr. 17, 18. ' Sharpe v. Taylor, 11 Simons, E. 50 ; Post, § 44, note. " Mitf Eq. PI. by Jeremy, 38 ; Cooper, Eq. PI. 14 ; Jones v. Parishes of Montgomery, &c., 3 Swanst. 208 ; Legal v. Miller, 2 Ves. 299 ; Lord Walpole V. Lord Orford, 3 Ves. 416 ; Hiern v. Mill, 13 Ves. 118, 119 ; 8 Wooddes. Lect. §41-42 6.J BILLS IN EQUITY. 37 rent charge of ten pounds per annum, left under a will, and the counsel for the plaintiff pray at the bar, that they may drop the demand of the annuity or rent charge, and insist upon the land itself, out of which the annuity or rent charge issues, the court will not grant it, for it is not agreeable to the case made by the bill.i If, therefore, the plaintiff doubts his title to the relief he wishes to pray, the bill should be framed with a double aspect, so that, if the court should decide against him in one view of the case, it may yet afford him assistance in another.^ [* § 42 a. But although alternative cases may be presented by the same bill, and alternative relief prayed, the plaintiff must sue in the same capacity. The plaintiff cannot claim to main- tain two distinct characters in the suit; as that he has a valid claim against a corporation in his individual capacity, and also that he, on behalf of himself and the other shareholders, has a valid claim against other parties, thus making himself, as to the company, or the shareholders, virtually, both plaintiff and de- fendant.^ § 42 b. Where alternative relief is prayed, a distinct line should be drawn, clearly stating the respective facts on which the infer- ence of law is to arise on each alternative view. The plaintiff is not allowed to allege two inconsistent states of fact and ask relief in the alternative ; but he may state the facts and ask relief accord- ing to the conclusion of law which the court may draw from them, although this may be presented in two or more alternatives.*] 55, p. 372; Walker v. Devereaux, 4 Paige, R. 229; Seudder v. Young, 25 Maine, 153. ' Grimes v. French, 2 Atk. 141 ; Dormer v. Fortescue, 3 Atk. 124, 132. " Mitf. Eq. PI. by Jeremy, 39; Bennet v. Vade, 2 Atk. 325; Barton's Suit in Eq. 41, note (1); Cooper, Eq. PI. 14; 3 Wooddes. Lect. 55, p. 371; Colton v. Boss, 2 Paige, E. 396 ; Lloyd v. Brewster, 4 Paige, R. 537. [* ' Thomas v. Hobler, 8 Jur. N. S. 125. * Kawlings v. Lambert, 1 Johns. & H. 458. It is not sufficient to state conclu- sions of law ; but the bill must contain the facts upon which such conclusions are founded. It is not therefore sufficient to allege that the defendant is trustee, with- out also alleging the facts by which he is shown to be trustee. Evan v. Avon, 29 Beavan, 144 ; Post, § 254 h. And where each branch of the alternative relief prayed was complete in itself, the defendant cannot protect himself from answer- ing on the ground that one branch of the relief is demurrable, for that would amount to a demurrer to the whole bill. Marsh v. Keith, 1 Drew. & Sm. 342. Nor will the court, on motion of defendant, where the bill claims, in one view, that a conveyance is fraudulent, and in another that it is valid, and in the latter as EQ. FL. 4 38 EQUITY PLEADINGS. [CH. U. § 43. Oa this and many other accounts, it has been very prop- erly remarked, that the prayer of a bill demands a good deal of consideration and attention ; and an accurate specification of the matters to be decreed in complicated cases requires great discern- ment and experience.^ Where special orders and provisional pro- cesses are required, founded on peculiar circumstances, such as writs of injunqtion, writs of we exeat regno, orders to transfer funds, or to preserve property pending the litigation, they are usually made the subjects of a special prayer .^ Indeed, the fre- quent applications made for amendments of the prayers of bills is a proof at once of the value of special prayers, and also, of the in- trinsic difficulty of foreseeing all the exigencies, which may arise in the progress of a suit, which may require new relief. § 44. The ninth part of the bill is the prayer of process, to compel the defendant to appear, and answer the bill, and abide the determination of the court on the subject. Care must be taken in this part of the bill to insert the names of all persons who are intended to be made parties ; for it is a general rule, that none are parties, although named in the bill, against whom process is not prayed.^ The ordinary process prayed is a writ of subpoena, well as the former claims an account, but upon diflferent bases, and with different results, ordei- the plaintiff to elect upon which claim he will proceed, and have the other stricken from the bill. Eedmond v. Dana, 3 Bosw. (N. Y.. Sup. Ct.) 615.. . A disjunctive allegation, only one alternative of which is ground of relief, is bad. Lucas V. Oliver, 34 Alab. 626.] . ' Cooper, Eq. PI. 13 ; 3 Wooddes. Lect. 55, p. 372. 2 Cooper, Eq. PI. 13, 14 ; Mitf. Eq. PI. by Jeremy, 46, 47 ; Barton's Suit in Eq. 41, note (2) ; Moore v. Hudson, 6 Mad. R. 218 ; Hinde, Ch. Pr. 17, 18. = Cooper, Eq. PI. 16 ; Fawkes v. Pratt, 1 P. Will. 593 ; Windsor v. Windsor, 2 Dick. 707 ; Brasher v. Van Cortlandt, 2 John. Ch. E. 245. It is said, in Haddock V. Tomlinson, 2 Sim. & Stu. 219, not to be necessary to pray process against per- sons who are charged in the bill to be out of the jurisdiction. It was held, in Munoz V. De Tastet, 1 Beavan, K. 109, note, and recognized by the master of the rolls in Brooks v. Burt, 1 Beavan, K. 106, 109, that there should, in such case, be a prayer for process against the absent party. And it is the usual practice, where any of the defendants are out of the jurisdiction, for the plaintiff to state the fact in his bill, and to pray process against them, when they shaU come within the jurisdiction. 1 Smith, Ch. Pr. 45 ; Mitf. Eq. PI. by Jeremy, 164, 165. If the plaintiff should not pray process against a party defendant out of the jurisdiction, and the party should come under the jurisdiction in the progress of the suit, the plaintiff would be compelled to amend his bill, or to file a supplemental bill, if he was not entitled to amend, so as to bring the party before the court. Mitf. Eq. PI. by Jeremy, 165. The 22d of the Equity Rules of the Supreme Court of the § 43, 44.] BILLS IN EQUITY. 39 which requires the defendant to appear and answer the bill, on a certain day, named in the writ, under a certain penalty.^ In the case of privilege of the peerage, in England, a letter missive re- questing the defendant to appear and answer the bill is first prayed, and on his default the prayer of a subpoena.^ In the case United States, January Term, 1842, provides as follows : " 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 jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And, as to persons who are without the jurisdiction, and may properly be made parties, the bill may pray that process may issue to make them parties to the bill, if they should come within the jurisdiction.'' The 23d Rule is as follows : " The prayer for process of subpoena in the bill shall contain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants iinder 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, with- out repeating the same in the prayer for process." ^ Com. Dig. Chancery, D. 1 ; Gilb. For. Kom. 37. The usual form of the prayer for a subpoena is: "May it please your lordship (or your honors) to grant unto your orator his majesty's most gracious writ of subpoena, (or, the most gracious writ of subpoena of the state of , or of the U. S. of America,) to be directed to the said A. B. and the rest of the confederates when discovered, thereby commanding them and every of them at a certain day and under a cer- tain pain therein to be specified (or, therein to be inserted) personally to be and appear before your lordship (or, your honor or honors) in this honorable court, and then and there to answer to all and singular the premises, and to stand to (perform) and abide such order and decree therein, as to your lord- ship (or, to your honors, or to this honorable court) shall seem meet (or, shall seem agreeable to equity and good conscience), and your orator shall ever pray." Barton's Suit in Eq. 41, 42 ; 1 Mont. Eq. PI. 80, note (y) ; Van Hey. Eq. Drafts. 9 ; Hinde, Ch. Pr. 17, 18. When the bill is only for discovery, or to perpetuate the testimony of witnesses, the clause following the words, " to answer all and singular the premises," is omitted, as no decree is asked, or is proper. Barton's Suit in Eq. 43, note (1). ^ In England, in case any defendant has privilege of peerage, or is a Lord of Parliament, a prayer for a letter-missive to him, requesting him to appear and answer the bill, is put in (as is stated in the text) before the prayer of process of subpoena. And the prayer of the latter is only in default of the defendant's compliance with that request. The usual form is, " May it please, &c. to grant unto your orator your lordship's letter-missive, to be directed to the said defend- ant, the earl of, &c., desiring him to appear and answer your orator's bill, or in default thereof, his majesty's most gracious writ of subpojna," &c. Barton's Suit in Eq. 42, note; 1 Smith, Ch. Pr. 75, 76, 97. In case the Attorney-General, as 40 EQUITY PLEADINGS. [CH. H. of corporations aggregate, the process of subpoena is the same as in ordinary cases ; but the bill sometimes prays, that in case of their default to appear and answer the bill, the writ of distringas may issue to compel them to do so.^ In cases where the writ of injunction is sought, it should not only be included in the prayer for relief, but also in the prayer for process .^ § 45. The process of subpoena seems first to have been intro- duced into the Court of Chancery, to compel. an appearance to a suit in equity, by Bishop Waltham, who was chancellor in the reign of Eichard the Second.^ It was anciently and originally a an officer of the crown or government, is made a defendant, the bill, instead of praying process against him, prays that he may answer it upon being attended with a copy. Mitf. Eq. PI. by Jeremy, 46; Cooper, Eq. PI, 16, 17; Barton's Suit in Eq. 42, note ; Com. Dig. Chancery, D. 2 ; Gilb. For. Rom. 65-67. ^ Cooper, Eq. PI. 16, 17. Mr. Cooper, (Eq. PI. 16, 17,) says, that "In the case of a corporation aggregate, where the answer is under the common seal, the bill must pray, that a writ, called a writ of distringas, may issue under the great seal, which is for the purpose of distraining them by their goods and chattels, rents and profits, until they obey the summons or direction of the court." From this language it would seem indispensable, in a suit against such a corporation, to insert a prayer for such a writ. But I cannot find any sufficient authority for such a position. It seems no more necessary, than it would in common cases to pray for an attachment and other processes, when the party does not appear and answer ; and this is never done. The right to the ulterior processes results from the general authority of the court to compel obedience to its own com- mands. The distringas is to compel the corporation to answer as well for the contempt as to the bill. Harvey v. East India Company, 2 Vern. R. 396 ; S. C, Prec. in Ch. 128, cited by Mr. Cooper, does not support his doctrine; but only the modified doctrine above stated. See 1 Harris, Ch. Pr. by Newl. ch. 27, p. 149, where the form of a distringas is given. It commands the sheriff to distrain the lands and tenements, (not the rents and profits,) goods and chattels of the corporation, &c. &o., and that he shall answer to the court for the said goods and chattels, and the rents and profits of the land, &c. Barton's Suit in Eq. 94, 95. See also 1 Smith, Ch. Pr. 45, 98, 99. VHaddock v. Tomlinson, 2 Sim. & Stu. 219: Hinde, Ch. Pr. 17; Ante, § 41. Where a writ of ne exeat regno is sought, it is ordinarily included in the prayer 'of relief and of process. It was held in Sharpe v. Taylor, 11 Simons, R. 50, that it ought not to be granted, unless expressly prayed for in the bill. However this may be in general, there are certainly cases in which it has been thought not to be absolutely indispensable ; as, for example, when, at the filing of the bill, there was no reason to suppose the defendant meant to go out of the realm. Ante, § 41. See CoUinson v , 18 Ves. 353 ; Moore v. Hudson, 6 Madd. R. 219; 1 Smith, Ch. Pr. 51. See the form of a prayer, for ne exeat in Hinde, Ch. Pr. 16. 3 Barton's Suit in Eq. 7, 8 ; Id. 61, note (1) ; 3 Reeves, Hist, of Law, 192. § 44, 45.] BILLS IN EQUITY. 41 process in the courts of common law, where it was used, and still continues to be used, to compel the attendance of witnesses to at- test the truth of facts, and give testimony .^ It is supposed by some authors to have beeii introduced from the courts of common law into the Court of Chancery, because it was the newest process that was used in case of attestation by that law.^ And, perhaps, the authority to issue it was derived from the statute of West. 2, ch. 24, which gave authority to the chancellor to issue new writs in cases, where the existing writs did not afford a remedy for cases, falluig under the like right.^ It bears a close analogy, also, to the citation, or vocatio in jus, of the Civil and Canon Law ; and con- sidering that the Chancery was in those early times in the posses- sion of the ecclesiastical dignitaries, it is by no means improbable, that it was modelled upon the basis of the latter.* ^ Gilb. For. Kom. 37 ; 1 Story, Comm. on Eq. Jurisp. § 46 ; 3 Black. Comm. 52, 53. " Gilb. For. Kom. 37. ' Bartoa's Suit in Eq. 61, note (1) ; 3 Black. Comm. 52, 53. See 3 Reeves, Hist, of Law, 192; Treatise of Subpoena in Harg. Law Tracts, 324, 325, 332, 433 ; Id. 301. * See Halifax, Anl. of Civ. Law, ch. 9, p. 109, cb. 10, p. 122 ; Conset's Pract. 26; Barton's Suit in Eq. 61, note (1); Gilb. For. Rom. 21, 26, 27. Mr. Bar- ton, in bis treatise on Suits in Equity, p. 61, note (1), has made the foUo^ying remarks on the writ of subpoena : " This writ answers to the Citatio certis de causis in the Civil Law (see Gib. Cod. T. xliv. c. 2). It was first applied to the purpose of compelling an appearance to a suit in equity in the reign of Richard n., when Bishop Waltham, then chancellor, appears to have adopted it in pur- suance of Stat. West. 2, c. 24, which (to prevent the multiplicity of petitions to Parliament for the formation of writs adapted to such new causes as were daily arising) enacted that ' quotiescunque de cmtero evenerii in Cancettaria, quod in uno casu reperitur breve, et in consimili casu cadente sub eodem jure, et simili in- digente remedio, non reperitur, concordent clerici de Gancellaria in hrevi faciendo.' This writ was always vehemently opposed by the courts of common law ; and having sometimes, it seems, been issued upon groundless allegations, it was enact- ed by 15 Hen. VI. c. 4, at the instigation of the Commons, that no writ of sub- poena should be granted in future, till surety had been found to answer to the party aggrieved for his damages and expenses, in case the plaintiff failed to make good the charges in his bill. This security, however, has long fallen into disuse (a matter there is frequently reason to lament), and is now required only in cases where the plaintiff either resides abroad, or is likely soon to quit the kingdom. " A custom formerly pi*vailed (though contrary to the more ancient practice) of issuing the subpoena before the bill had been filed. This gave rise to the Stat, of 3 and 4 Ann. c. 16, by which it is provided, that ' no subpoena, 6r any other 4* 42 EQUITY PLEADINGS. [CH. n. ' § 46. Such are the formal parts of an original bill for relief, as it is usually framed ; upon which Lord Redesdale has made the following remarks : — " Some of them are not essential ; and, par- ticularly, it is in the discretion of the person, who prepares the bill, to allege any pretence of the defendant in opposition to the plaintiff's claims, or to interrogate the defendant specially. The indiscriminate use of these parts of a bill in all cases has given rise to a common reproach to practisers in this line, that every bill contains the same story, three times told. In the hurry of busi- ness, it may be difiicult to avoid giving ground for the reproach. But in a bill, prepared with attention, the parts will be found to be perfectly distinct, and to have their separate and necessary operation." ^ process for appearance, do issue out of any court of equity, till after the bill be filed with the proper officer in the respective courts of equity (except only in cases of injunctions to stay waste or proceedings at law, in which cases, there- fore, it may still be done), and a certificate thereof granted by the proper offi- cer.' And as a still further check on this practice, it remains an order of tjie Court of Chancery, that ' all bills there filed shall be dated on the day they are brought into the Six Clerks' office.' It is to be observed, however, that neither the statute nor order have entirely put a stop to this mode of proceeding, though it is always done at the risk of costs." See also the Treatise on the Writ of Subpoena, in Harg. Law Tracts, 322, 324, 332. ' Mitf Eq. PI. by Jeremy, 47. See also Cooper, Eq. PI. 17, 18. Mr. Bell's testimony in his examination before the Chancery Commissioners, already cited in a note to § 38, is very jlirect to the same purpose. The following extract of his answers to subsequent questions put, elucidate this whole subject much more fully. " Q. 24. — Supposing a bill in equity, according to the present form in use, to be a narrative of facts, which it may be necessary to prove, either by discovery from the defendant, or by extrinsic evidence ; does it occur to you, that any variation of the present form could be substituted to the advantage of the suitor, supposing the pleader to prepare his pleadings according to the present form, with due care and skill ? — I think not. It is very difficult to impress any per- son with all the difficulties of the case, except a peraon who has been laboring a long time at pleading. But when one has been sitting for years at one's desk, trying to prepare bills to extract truth, and in answers, wishing to give a fair and reasonable answer, one really is obliged, I think, to come to that conclusion : I never could bring my mind to any other conclusion. " Q. 25. — After all the pains you have taken in framing a bill, have you not found yourself frequently disappointed, and obliged to reframe your bill, in order to obtain a full answer ? — Certainly. And in cases where a defendant is desirous to give a full answer, where the answer is to be obtained'first through the medium of a solicitor, who perhaps has not time to attend to this business himself; next, by extracting it from a man, who, if a man of moderate intelli- § 46, 47.] BILLS IN EQUITY. 43 § 47. "We may conclude, what is here said on the general struc- ture and form of a bill, by the .remark, that every bill, whether gence, is still not used to technical language, or used to give those precise an- swers, which a witness ought to do ; if you do lay the positive questions before those persons, you will seldom be able (even if they wish to give you all the information they possess) to get it from them ; you will get a great deal of infor- mation, probably, that you do not want, but they will omit very material points ; and it is not till instructions are sent back two or three times, pointing their attention particularly to the interrogatories, and writing down, perhaps, the inter- rogatory with your own hand, or the essential part, that you are able to get out the truth. I recollect one case, which occurred to myself in practice ; I could not get my client to answer a particular part of a bill. The parties took excep- tions more than once ; they thought we were keeping back something or other. At last my client, the solicitor, said to me, ' Really, I do not know how to give you any further information.' I said, ' You must ; the other parties insist upon it ; and if you cannot give further information, your client must go to the Fleet, and remain till he does give further information.' At last I prevailed upon him to set seriously to the business, and he procured information, which decided the case ; but it decided it in favor of my client. " Q. 26. — As it must frequently happen that the statements of a bill, either in the whole or in great part, are such, that beforehand the pleader perfectly well knows the defendant is incapable of giving an answer, — when that case occurs, would it not be sufficient, as a general rule, that the plaintiff should confine his interrogatories to those points only, to which he knows, or suspects, or believes the defendant is able to give an answer ? — The difficulty in doing that is this : The formal parts of a bill one is obliged to leave to clerks, or to junior pupils, and it would be almost impossible to get through business with the despatch required, if we were obhged to look into it with such minuteness as to fix on those parts, if they could be distinguished. " Q. 27. — Would it be attended with advantage if the pleader were to pencil, for the use of his clerk, those parts to which he wishes to confine his interroga- tories? — I do not think it could be done. If the point is material to the case made against the defendant, whether he knows it or not must be matter of con- jecture. The draftsman generally takes care to interrogate the defendant to what- ever is material against him. " Q. 28. — Does the person who prepares a bill always know how far the several parties to that bill are, or are not acquainted with the several transactions stated in it ? — It is very seldom that he can know the exact information they have upon the subject. " Q. 29. — Would not the exhibiting particular interrogatories to particular parties, instead of including all in a general interrogatory, very much increase the lenirth of the bill ? — I think it would, if you framed distinct interrogatories upon the same parts of a bill, with a view to different parties. " Q. 30. — The drawing of the interrogative part of a bill is left to clerks or pupils ? — Generally, that part is so much a formal part, that the pupils prepare it. The pleader must peruse it himself, and see that it is correct ; and when he 44 EQUITY PLEADINGS. [CH. Hi original or not, must have the signature of counsel annexed to it.i [In America, it has been held in one case, that signing on the back of a bill is sufficient.^] This rule appears to have been adopted at an early period, and at least as early as the time of Sir Thomas More.3 The great object of this rule is, to secure regularity, rele- vancy, and decency in the allegations of the bill, and the responsi- bility and guaranty of counsel, that upon the instructions given to them, and the case laid before them, there is good ground for the suit in the manner in which it is framed. Hence it is that coun- sel are held responsible for the contents of the bill ; and if it con- tains matter which is irrelevant, impertinent, or scandalous, such matter may be expunged ; and the counsel may be ordered to pay costs to the party aggrieved.* And this duty has been enforced by several pointed general orders of the Court of Chancery.^ comes to that part which requires particular attention, he gives that particular attention to it. " Q. 31. — Do you consider the present interrogative part of the bill requisite to obtain a full answer, in the majority of cases, or only in cases of particular diffi- culty ? — In the majority of really contested cases, unless it is those cases where the whole question depends upon the construction of certain deeds." Report of Chancery Commissioners, 18-26, Appendix 4. ' Mitf. Eq. PI. by Jeremy, 48 ; and note (a) ; 1 Prax. Aim. Cur. Can. 4 ; 1 Mont. Eq. Pi. 75; Cooper, Eq. PI. 18; French v. Dear, 5 Ves. 547; Kirkley «. Burton, 5 Madd. R. 378; Barton's Suit in Eq. 43, note (2) ; 1 Smith, Ch. Pr. 64, 169. [And if a bill is filed without the signature of counsel, it may be taken from the files, on Biotion of the defendant. Carey v. Hatch, 2 Edw. Ch. R. 190. A biE cannot be signed after it is filed, without an order of court. Partridge v. Jackson, 2 Edw. Ch. R: 520.] " Dwight V. Humphreys, 3 McLean, 104. ' Mr. Cooper, in his treatise on Equity Pleadings, (p. 18,) says: "This prac- tice is said to have commenced in the time of Sir Thomas More, in consequence of an order made by him. Before that time, it seems that the court itself ex- amined the bill ; that afterwards the chancellor delegated that power to partic- ular counsel; and that subsequently an order was made that no bill should be filed unless under the hand of a double reader, or of one of the king's counsel. But at length, on account of the increase of business, the court referred them to the honor of the bar at large. But if the bill is not signed by counsel, or the signature is counterfeit, or disavowed, in the first case the bill will be dismissed on the defendant's demurrer ; and in the other, on the fact being made known to the court, it will be ordered to be taken off the file." See also Harg. Law Tracts, 302. The 24th of the Equity Rules of the Supreme Court of the United States, January, 1842, expressly requires the signature of counsel to the bill for the same purpose. ' Mitf Eq. PI. by Jeremy, 48 ; Cooper, Eq. PI. 18, 19 ; Gilb. For. Rom. 210, 211; Emerson v. Dallison, 1 Ch. R. 194; Supra, note. " Beames, Ord. in Chanc. 25, 69, 70, 165-167. § 47 - 48 a.] BILLS in equity. 45 § 48. The subject of scandal and impertinence in a bill, as well as the general rules and principles which apply to the %naterial al- legations of a bill, as to certainty, and accuracy, and fulness of statement, and other matters, will be more fully considered here- after.^ It is sufficient, in this place, to have explained the general nature and character of this part of Equity Pleadings.^ Our next inquiry will be, as to the persons who may sue, and be sued, by a bill in equity, and the manner in which the suit is to be brought and defended. We shall then proceed to the inquiry, what per- sons are proper and necessary parties to such a bill ; and when and under what circumstances parties may be dispensed with. Having disposed of these preliminaries, we shall then be prepared to re- sume the consideration of the mode of stating the material facts in a bill, and the rules by which due certainty, order, and propriety of statement in regard to these facts are insured and attained. [* § 48 a. A few suggestions in regard to the proper mode of drawing bills may not be out of place here. From what has been said it will occur to all that any strict and slavish adherence to the systematic insertion, in every bill in equity, of the precise nine parts of the bill, pointed out by the elemeniary writers, would be far from judicious or allowable ; since, in the majority of plain cases, nothing more than the careful statement of the facts of the case, the general prayer that the defendant may answer the bill, and for relief, will be required. While in more complicated cases, and especially where the defendants are suspected of combination and confederation, it may be important to present, on the face of • the bill, some of the pretences set up in defence or evasion of the claim ; and in many cases to extend the interrogatories into mi- nute detail, in order to lay the proper ground for exceptions, if the > Post, § 266, 863. ^ As to scandal and impertinence in interrogatories to witnesses, and also in the answers of witnesses, it may here be stated, that the court will refer the de- positions to a master to ascertain such matters, and if he reports that there is such scandal and impertinence, the same will be ordered to be expunged from the depositions, and the costs paid by the offending party. Thus, if there has been impertinence and scandal in the interrogatories, the solicitor, who drew them, may be required to pay the costs. Post, § 266 - 268. If scandal and im- pertinence is in the answer of witnesses, not specifically called for by the interro- gatories, as in their answers to the general interrogatory, the witnesses will be liable to pay the costs. Gude v. Mumford, 2 Younge & Coll. 445, 448. Post, § 880 a. 46 EQUITY PLEADINGS. [CH. III. answers should prove evasive ; and sometimes it may serve to guide the mind of the court towards tlie correct appreciation of the plain- tiff's claim to relief, if the special prayers for such relief were considerably amplified. We think practitioners fail of making the proper impression upon the mind of the court, both by too much brevity, and by too great prolixity of detail. Here as everywhere in medio tutissimus ibis.'\ CHAPTEE III. BILL IN EQUITY. — PARTIES WHO HAVE CAPACITY TO SUE, AND BE SUED. [* § 49. Suits by the Attorney-General ; and by relation. § 50. All persons may sue, unless laboring under disability. § 51. Disabilities are either general or partial. § 52. Alien friends may sue in equity, but not alien enemies. § 53. Alien enemy may maintain bill of discovery in some cases. § 54. The disability only continues during the war. § 55. Foreign sovereigns and corporations may sue in equity. § 56. Partial disability to sue exists in infants, idiots, lunatics, &c. § 57. Infants may sue by prochien ami, or next friend. § 58. He must sue his guardian by next friend. § 59. Next friend responsible for costs, and for the proper conduct of the suit. § 59 a. How far authority of guardian local. § 60. Court will inquire how far suit is beneficial to infant. ^61. Married women sue by husband and next friend. § 62. Husband and wife may sue each other in equity. § 63. Wife may sue alone for separate estate and join husband as defendant. Can only join with husband, if their interests coincide. § 64. Idiots and lunatics sue by committee or guardian. 5 65. In the American States more commonly by guardian. § 66. Courts may in discretion allow others to sue by next friend. § 67. Who may be sued in equity. § 68. Generally all persons may be sued in equity, whether sui juris or not. § 69. Sovereigns not liable to suits in equity, except by representative. § 69 a. This exemption applies to foreign sovereigns. § 70. How corporations, and persons of unsound mind may defend. § 71. How femes covert may defend in equity.] § 49. In the first place, then, let us consider, who may sue in equity. The king or government may (as has been already stated) sue in a court of equity, not only in suits strictly on behalf of the crown or government, for its own peculiar rights and in- § 49 - 51.] BILLS IN EQUITY. — PLAINTIFFS. 47 terests ; biit also on behalf of the rights and interests of those who partake of its prerogative, or claim its pecuhar protection .^ In all such cases the suit is instituted by the proper public officer, to whom that duty is intrusted ; and this ordinarily is the Attorney- General.2 Where the suit immediately concerns the rights and interests of the crown, the public officer sues in his own official name without uniting that of any other person. But where the suit does not immediately concern the rights or interests of the crown, but only those who partake of its prerogative, or are under its peculiar protection, or the subject-matter is publici juris , there the Attorney-General sues generally (but it is not absolutely nec- essary,) at the relation of some other person, who is named as relator in the bill, and who becomes thereby responsible for the costs.^ [* § 50. Suits in equity may be instituted in favor of all persons, natural or corporate, unless laboring under some disability, where- by they are incapacitated from acting sui juris. And by the rules of practice, in the English equity courts, persons not able to bear the expense of a suit are allowed- to sue in forma pauperis. But this practice does not obtain in the American courts, as a general rule.] § 51. The incapacities to sue are, as at law, of two sorts ; first, those which are absolute ; and, secondly, those which are partial. The absolute are such as, while they continue, wholly disable the party to sue. The partial are such as disable the party to sue by himself alone, without the aid of another. The absolute incapaci- ties, in England, are outlawry, excommunication, attainder, and alienage.* In America, the two former are either wholly un- known, of, if known at all, are of very limited local existence. Alienage alone does not in either country constitute a general dis- ' Ante, § 8; Mitf. Eq. PI. by Jeremy, 4, 21-24; Cooper, Eq. PI. 21, 22, 191, 102; Attorney-General v. Vernon, 1 Vern. R. 277, 282; S. C. 370, 1 Mont. Eq. PI. 34 ; Edwards on Parties in Equity, 60, 61 ; Calvert on Parties, ch. 3, § 26, p. 301-308. ' Ibid. ' Ante, § 8; Mitf. Eq. PI. by Jeremy, 22-24; Cooper, Eq. PI. 21, 22, 101, 102; Attorney-General v. Vivian, 1 Euss. E. 235-237; 1 Mont. Eq. PI. 34; Calvert on Parties, ch. 3, § 26, p. 301-308. ' Mitf. Eq. PI. by Jeremy, 226 - 229 ; Beames, Ord. in Ch. 27 ; v. Davis, 19 Ves. 80 ; 1 Mont. Eq. PI. 32, 33 ; 2 Mont. Eq. PI. Ill - 115 ; Cooper, Eq. PI. 26 ; Calvert on Parties, ch. 3, § 28, p. 313. 48 EQUITY PLEADINGS. [CH. HI. ability to sue in courts of law or of equity ; but only alienage com- bined with the character of enemy. An alien friend has a right to sue in any court ; an alien enemy is incapable of suing while he remains an enemy, at least unless under very special circum- stances.^ § 52. The ground of this distinction may be stated almost in the very language of a distinguished judge. Alien friends come into the country, either (as was formerly the case) with a letter of safe conduct, or under a tacit permission, which presumes that authority. So, if they continue to reside here after a war breaks out between the two countries, they remain under the benefit of that protection, and are impliedly temporary subjects of the coun- try where they reside. But if the right of suing for redress of the injuries, which they receive, were not allowed them, the protectioh' afforded would be incomplete, and merely nominal. This claim to the protection of the courts of the country does not apply to those aliens who adhere to the public enemies of the country. They seem, upon every principle, to be incapacitated from suing either at law or equity.^ § 53. A doubt has arisen, whether this doctrine is applicable to bills of discovery, as it clearly is to bills of relief by an alien ene- my.^ Upon principle, there would not seem ordinarily to be any solid ground for any distinction. The disability to sue is per- sonal. It takes away from the public enemies the benefit of the courts of a country, whether the suit be for the purpose of imme- diate relief, or, to give assistance by a discovery in obtaining that relief elsewhere. Perhaps the discovery made might be available by a suit abroad ; and then the same reason would apply against the auxiliary suit, as against the principal suit.* An exception might perhaps be allowed where the alien enemy is the defendant in a suit at law in the country where he brings the bill for discov- ery ; since it may be the only effectual means on his part to estab- lish a perfect defence to the suit at law. And, if a country will suffer an alien enemy to be sued in its courts, it is against com- ' Mitf. Eq. PI. by Jeremy, 229 ; Cooper, Eq. PI. 27 ; 2 Mont. Eq. PI. IH, 115; Daubigny v. Davallon, 2 Anst. R. 462, 467; Albretcht v. Sussman,,2 Ves. & B. 323 ; Edwards, on Parties in Equity, 216 - 218 ; Calvert, on Parties, ch. 3, § 27, p. 311, '312 ; Pisani v. Lawson, 6 Bing. N. R. 90. ' Lord Ch. Baron Macdonald In Daubigny v. Davallon, 2 Anst. R. 467. = Albretcht v. Sussman, 2 Ves. & B. 323-326. * Daubigny v. Davallon, 2 Anst. R. 467, 468 ; Cooper, Eq. PI. 25. §51-53.] BILLS IN EQUITY. — PLAINTIFFS. 49 mon justice to disable him from the use of the proper means to defend himself against a dishonest or unfounded claim.^ ' The decision in Daubigny v. Davallon, 2 Anst. R. 467, is entirely in conform- ity with the doctrines held by the courts of common law and the Prize courts on this subject. Co. Litt. 129 (ft). It seems, however, that in a later case in the Exchequer, cited in Albertcht v. Sussman, 2 Ves. & B. 324, 326, 327, it was held, that a bill for a discovery would lie, notwithstanding the plaintiff was an alien enemy, thus in effect overturning the case in [2 Anst. R. 467. The vice-chan- cellor, in 2 Ves. & B. 326, said : " The case in thS court of Exchequer has gone the length of deciding, that to a bill merely for a discovery as a defence at law, this plea (alien enemy) would not hold. And the principle seems to have been, that if an alien may be sued at law, as he would be allowed process to compel the attendance of his witnesses, he should have a discovery for the same purpose. But I did not understand the court to lay down that an alien enemy could have any relief, or anything but a discovery merely ; and a decision to that effect would lead to the most extensive consequences." Perhaps the doctrine of these different cases may be reconciled by attending to the particular circumstances of each. In Daubigny i;. Davallon, 2 Anst. R. 467, the bill was brought by the plaintiff for a discovery to enable him to commence a suit at law (probably in England). The discovery was denied ; and certainly the plaintiff could not have maintained the suit at law in an English court ; and if he meant to institute it in the enemy's country, it was open to the like objection, that he ought not to be aided there. The other case in the Exchequer, cited in 2 Ves. & B. 324, 326, seems, from the remarks of the vice-chancellor, to have been a bill for a discovery filed by the party who was the originail defendant in a suit at law in England, to obtain evidence to serve as a defence in that suit. Now, if the original plaintifi could proceed in the suit at law against the original defendant, notwithstanding his being an alien enemy (which it seems difficult on principle to maintain), it seems but just and reasonable that the defendant should be treated throughout as entitled to use all the evidence authorized by law in his defence. The original plaintiff ought not to be permitted in the suit at law to treat the original defend- ant as competent to be sued, and at the same time to treat him as incompetent to sue in equity ; or, in other words,^ incompetent to make a full defence to the suit at law. The suing of an alien enemy in an English court at law, might well be deemed on the part of the plaintiff an admission of the competency of the defendant to be sued, and a waiver of any objection to his alienage. A bill in equity for a discovery may be filed by an alien enemy in the courts of the coun- try of which he is the enemy, under circumstances which may require, or at least may admit of very different legal considerations. He may file such a bill in aid of a suit brought or intended to be brought by him as plaintiff at law, in the coui-ts of the country where he brings his bill ; or in the courts of the country of which he (the plaintiff) is a subject ; or in the courts of a neutral country. In all these cases it would seem clear that his personal disability to sue ought to preclude him from making use of such a bill of discovery in aid of such a suit. On the other hand, the plaintiff, filing a bill for a discovery, may be an alien enemy, who is sued at law as a defendant in the courts of the coun- try of which he is the enemy ; or in the courts of a neutral country. There EQ. PL. 5 50 EQUITY PLEADINGS. [CH. HI. § 54. But, although an alien friend is not incapacitated to sue in courts of equity. ; yet this doctrine is to be understood in a lim- ited sense, that he is thereby under no personal disability to sue. Still, the subject-matter of the suit must be such, as will entitle him, as an alien friend, to maintain it ; for if it respects land, or any demand of a mixed nature, partly real and partly personal, he may not be so entitled.^ The disability of an alien enemy, how- ever, is not absolute to the extent of destroying all his future right to sue, when peace has actually taken place between iiie countries; for, it continues only, as the old phrase is, donee terrce fuerint communes ; and then his right is revived.^ The true effect of the disability of an alien enemy is only to suspend the commencement of any suit during the war, or, if the suit is already commenced, to suspend its further progress until the return of peace.^ § 55. In respect to alien sovereigns and alien corporations, there does not seem any difl&culty in their maintaining suits in the courts of equity of another country. In respect to foreign sovereigns, there was formerly much forensic discussion ; but the doctrine is now established 'in affirmance of their right, upon very satisfactory principles.* It would be against all notions of general justice, to refuse to a foreign sovereign the common rights which are granted to every private individual ; and, indeed, unless he were permitted to sue, there would be rights without a remedy. If a country were to refuse to permit a foreign sovereign to sue in its courts, it may be good grounds for saying, that, in the two latter cases, he ought not to be permitted, on account of his personal disability, to maintain a bill for a discovery in aid of his defence to the suit at law in a foreign, hostile, or neutral country, which would not, or at least might not apply with equal force to the former case. If a suit can be maintained at law against an alien enemy in the courts of a coun- try where he happens to be, or to whose jurisdiction he is already subjected, there is the strongest reason for saying, that he ought to be entitled to use all proper means to establish his defence upon the merits against such a suit. An aUen friend, it is well known, may maintain a bill for a discovery in aid of a suit in a foreign country. 2 Story, Comm. on Eq. Jurisp. § 1495. But see contra, Bent V. Young, 9 Sim. 180. 1 Co. Litt. 129 (J) ; Cooper, Eq. PL 25. ^ Co. Litt. 129 (6). ^ Co. Litt. 129 (6)'; Hammersley «. Lambert, 2 John. Ch. R. 508; Ex parti Boussmaker, 13 Ves. 71. * Hullett V. King of Spain, 2 Bligh, R. 51, N. S. ; 1 Dow & Clarke, E. 169; Columbian Government v. Rothschild, 1 Sim. R. 94 ; South Carolina Bank v. Case, 8 Barn. & Cresw. 427 ; Bank of Scotland v. Ker, 8 Sim. R. 246 ; Duke of Brunswick v. King of Hanov^, 6 Beavan, R. 1. §54-57.] BILLS IN EQUITY. — PLAINTIFFS. 61 might become a just eause of war.^ It is true no sovereign is'so entitled to sue, unless he has been recognized by the government of the country in which the suit is brought. But this is a mere- re- sult of the principle of the law of nations, which deems such recog- nition necessary, before he is entitled to be treated as a sovereign in a foreign country .2 In respect to foreign corporations, either private, or merely municipal, there seems no just ground to deny their competency to sue in courts of equity ; and it has according- ly been a general practice to maintain suits by them, as founded in the principles of international justice and amity.^ § 56. Partial incapacity to sue exists in the case of infants, of married women, of idiots, and lunatics, and other persons, who are in capable, or are by law specially disabled, to sue in their own names, such, for example, as in some of the states of America, are common drunkards, who are under 'guardianship. § 67. And first in relation to infants. — An infant is incapable, by himself, of exhibiting a bill, as well on account of his supposed want of discretion, as of his inability to bind himself, and to make himself liable to the costs of the suit.* When, therefore, an infant claims a right, or suffers an injury, on account of which it is nec- essary to apply to a court of equity, his nearest relation is supposed to be the person who will take him under his protection, and in- stitute a suit to assert his rights, or to vindicate his wrongs ; and the person, who institutes a suit in behalf of an infant, is therefore termed his next friend (prochein ami).^ But as it frequently happens, that the nearest relation of the infant himself withholds ' Hullett V. King of Spain, 2 Bligh, R. 60, N. S. ; King of Spain v. Macliado, 4 Kuss. R. 225, 560 ; Same u. Mendizabel, 5 Simons, R. 696 ; Edwards on Parties in Equity, 33 -35 ; Calvert on Parties, ch. 3, § 27, p. 310, 311. ^ City of Berne v. Bank of England, 9 Ves. 347; Bolder v. Bank of England, 10 Ves. 352; Bolder v. Lord Huntingfield, 11 Ves. 283; Gelston v. Hoyt, 3 Wheat. 324; Cooper, Eq. PL 119, 122. By the Constitution of the United States, foreign sovereigns and states are expressly authorized to sue in the courts of the United States. ' Society for Prop. Gospel v. Wheeler, 2 Gallis. R. 105 ; Society for Prop. Gospel V. New Haven, 8 Wheat. R. 464 ; Silver Lake Bank v. North, 4 Johns. Ch. R. 370; Henriquez v. Dutch West India Co. 2 Lord Bay. 1532; South Carolina Bank v. Case, 8 Barn. & Cresw. 427; Bank of Scotland v. Ker, 8 Simons, R. 246. * Mitf. Eq. PI. by Jeremy, 25 ; Edwards on Parties in Equity, 182-204 ; Cal- vert on Parties, ch. 3, § 29, p. 316-318. = Mitf Eq. PI. by Jeremy, 25 ; Calvert on Parties, ch. 3, § 29, 315, 316. 62 EQUITY PLEADINGS. [CH. ffl. the right, or does the injury, or, at least,»neglects to give that protection to the infant, which his consanguinity or affinity calls upon him to give, the court, in favor of infants, vrill permit any person to institute suits in their behalf; and whoever acts the part which the nearest relation ought to take, is also styled the next friend of the infant, and as such is named in the bill.^ The prochein ami is also treated as an officer of the court, and respon- sible accordingly.^ § 58. Occasionally, indeed, the true merits of the bill may be founded upon the real or the imputed misconduct of the general guardian of the infant, or upon interests, which the guardian has, and which are in conflict with those of the infant. In Such cases it is obvious, that the infant must sue by some other person, as his next friend ; even if he might (which seems to be matter of great doubt) sue by his guardian in ordinary cases.^ ' Mitf. Eq. PI. by Jeremy, 25, 26 ; Cooper, Eq. JPl. 27, 29 ; 1 Harris, Ch. Pr. by Ne-wl. ch. 57, p. 361 ; Hinde, Ch. Pr. 3 ; 1 Smith, Cb. Pr. 54, 55. ^ Morgan v. Thorn, 7 Mees. & Wels. 400, 406. In this case, the rights and duties of a prochein ami were largely discussed. ' At law, an infant, having a guardian, may sue by his guardian, as such, or by his next friend, though he must always defend by his guardian. 2 Inst. 261 ; 1 Black. Coram. 464. Why he should not be permitted to sue and be sued in equity in the same manner, does not seem to be easily explicable upon prin- liple. It is commonly said, that in equity he must defend himself, as at law, by his guardian ; but he cannot sue by his guardian, but only by his next friend. It is, however, laid down in the Practical Register, (Wyatt, Pr. Reg. 212,) that " It should seem, that an infant may sue in equity, either by himself, by prochein ami, or by guardian, as the court pleases." And it is added, " So it should seem he may defend, &c. But the course is not to call the guardian by that name, but by the name of next friend ; yet if he is called by the name of guardian, it is no cause of demurrer." The same doctrine is laid down in the Cursus Can- cell, (p. 463,) where it is also explicitly stated, that an infant may defend by either of these ways. The Pract. Reg. cites Tothill, 10, 108, 109, in support of its positions ; but they are cases of the answer of an infant. And in Wood v. Norton, Tothill, 109, a demurrer, because an infant sued by his prochein ami, and not by his guardian, was overruled. See also Co. Litt. 135 (J) ; Hargrave's note (1). When it is said, that he must sue and be sued by his guardian, it is not to be understood, as of course, that it is by his general guardian, but by his guardian ad litem, admitted by the court for this purpose. The person, so admitted as guardian ad litem, is usually, unless special reasons to the contrary appear, the general guardian, if the infant have any. Where an infant sues, or defends at law by his guardian, the latter must have a warrant; though if he sues by his next friend, the prochein ami need not ; but both the guardian and prochein ami must be admitted by the court in equity as well as at law. Chandler §67 -59 a.] BILLS in equity. — plaintiffs. 68 § 69. The next friend thus named is liable to the costs of the suit, and to the censure of the court, if the suit is wantonly and improperly instituted. [In this country, it has been held in a suit at law, that a prochein ami, is not liable for costs,^ and can- not be considered a party to the suit.^] But if the infant attains twenty-one years, and afterwards thinks proper to proceed in the cause, he is liable to the whole costs.^ If the person who thus acts as a friend of the infant, does not lay his case properly before the court, by collusion, neglect, or mistake, a new bill may be brought on behalf of the infant. And if a defect appears on the hearing of the cause, the court may, and, in favor of infants, gen- erally does, order it to stand over, with liberty to amend the bill.^ [* § 59 ». A foreign, guardian cannot be recognized as such in the courts of any other forum than that of his appointment.^ And this will apply to the institution of suits on behalf of the ward, and also to independent suits in the name of the guardian alone, for the purpose of obtaining the custody of the person or V. Vaett, 2 Saund. 117 (/) ; Mr. Sergeant Williams's note (1) ; Fitz. N. B. 27, I. (63, 1.) ; 1 Tidd. Pr. ch. 3, p. 70 ; Turner v. Turner, 2 Str. 709. Lord Coke has remarked, that in our books the names of guardian and prochein ami are some- times taken the one for the other, because the guardian and prochein ami are oftentimes all one, as the guardian in socage is also prochein ami. 2 Inst. 261. The authority of a prochein ami to sue for an infant seems derived from certain statutes passed in the reign of Edward I. Stat, of Westm. 1, ch. 48 (2 Inst. 267); and Stat, of Westm. 2, ch. 15 (2 Inst. 390); Co. Litt. 135.(6); Harg. note (1) ; Turner v. Turner, 2 Str. 709. In practice, in the courts of law, an infant generally sues by his prochein ami ; but in all cases defends by his guar- dian. 2 Saund. R. 117 (/) ; Sergeant Williams's note (1); Co. Litt. 135 (S) ; Harg. note (1) ; Perhaps the rule in equity may not be different in substance from that at law ; though the practice may be universally to sue in the name of a prochein ami, and not in that of a guardian. See OfHey v. Jenny, 3 Ch. R. 92 (51). 1 Crandall v. Slaid, 11 Mete. 288. ' Brown V. Hull, 16 Verm. R. 673; Sinclair v. Sinclair, 13 Mees. & Welsh. 640. 2 Mit£ Eq. PI. by Jeremy, 26 ; Cooper, Eq. PI. 29. * Mitf. Eq. PL by Jeremy, 26, 27; Id. 39, note (j) ; Id. 55, note (m) ; Pritch- ard V. Quinchant, Ambl. R. 147, 148. As a child in venire sa mere is by law capable of taking property to all intents and purposes, the same as if actually bom, it has been decided, that a biU may be exhibited on behalf of such infant in ventre sa mere by its next friend. In a case of this sort, upon a bill filed, the court granted an injunction to stay waste. See Hale v. Hale, Prec. Ch. 50 ; Cooper, Eq. PI. 29. [* ^ Grist V. Forehand, 36 Miss. 69.] 5# , 54 EQUITY PLEADINGS. [CH. HI. property of the ward. The appointment of guardians, -whether of the person or property of the ward, is to_ be regarded for most purposes as entirely local and confined to the jurisdiction of the state where the appointment is made. But for some purposes and to some extent the English courts of equity do recognize the char- acter of a foreign guardian.] § 60. As some check upon the general license to institute a suit in behalf of an infant, if it be represented to the court of equity, that the suit preferred in his name is not for his benefit, an in- quiry into the facts will be directed to be made by one of the mas- ters of the court ; and if he reports that the suit is not for the ben- efit of the infant, the coiirt will stay the proceedings.^ If two suits for the same purpose are instituted in the name of an infant by different persons, acting as his next friend, the court will di- rect an inquiry to be made in the same manner, which suit is most for the benefit of the infant ; and, when that point is ascer- tained, it will stay proceedings in the other suit.^ This course is indispensable to the security of the rights of the infant, since his bonsent to a bill filed in his name is not necessary.^ § 61. In the next place, in relation to married women, or as they are technically called, femes covert. A feme covert, if her husband is banished, or has abjured the realm, or has been trans- ported for felony, may, both at law and equity, maintain a suit in her own name, as a feme sole} But, except in these, and some other privileged cases of a kindred nature,^ a, feme covert cannot, ' Mitf. Eq. PL by Jeremy, 27; .Cooper, Eq. PL 28; Da Costa v. Da Costa, 3 P. Wm. 140. " Mitf. Eq. PL by Jeremy, 27, 28 ; Cooper, Eq. PL 28, 29 ; Gage v. Stafford, 1 Ves. R. 544, 545. " Mitf. Eq. PL by Jeremy, 28 ; Cooper, Eq. PL 27, 28 ; Turner v. Turner,!. 2 Eq. Abridg. 238; S. C. 2 Str. 708; Andrews v. Cradock, Free. Ch. 376. ' Mitf. Eq. PL by Jeremy, 28 ; Co. Litt. 132, (b) ; Id. 133; Cooper, Eq. PL 24, 30 ; Countess of Portland v. Prodgers, 2 Vern. 194 ; Newsome v. Bowyer, 3 P. WilL 37, 38; 1 FonbL Eq. B. l,ch. 2, § 6, note (p) ; Wright v. Wright, 2 Dess. 244 ; Robinson v. Reynolds, 1 Aikens, 1 74. ^ That there are some other excepted or privileged cases, has been solemnly decided. Thtis, it has been held, that if the husband is an alien enemy, his wife, domiciled in the realm, may sue as a feme sole. Deerly v. Countess of Mazar rine, 1 Salk. 116 ; S. C. 1 Ld. Raym. 147; Robinson v. Reynolds, 1 Aikens, 174. So where the husband is an alien domiciled abroad, and has never been within the realm, or where he has voluntarily abandoned her here, and is under a disability to return. De Gaillon v. L'Aigle, 1 Bos. & Pull. 357; Kay v. Duch- §69 a -61.] BILLS IN EQUITY. — PLAINTIFFS. 55 at law, sue except jointly with her husband ; for she is deemed to be under the protection of her husband ; and a suit respecting her rights or interests must be with the assent and cooperation of her husband.^ The rule in suits in equity is, in ordinary cases, the same as at law ; and the husband must join in the stiit.^ [And in a bill by a husband to restrain proceedings commenced at law against himself and wife, for the purpose of affecting her interests, she is a necessary party .^] But there are exceptions in equity, which are wholly unknown at law. Thus, if a married woman (as sometimes happens) claims some rights in opposition to the rights claimed by her husband, and it becomes proper to vindicate lier rights against those of her husband, at law, she cannot main- tain any suit against him. But in equity she may maintain a suit against him, and all others, who may be proper or necessary par- ties.* In such a suit, she cannot act under the advice or protec- ess De Pienne, 3 Campb. 123 ; Ehea v. Rhenner, 1 Peters, 105. So, where the husband has deserted the wife in a foreign country, and she comes here and maintains herself as a, feme sole. Gregory v. Paul, 15 Mass. R. 31. So, where the husband in a foreign state compels his wife to leave him, and she comes here, and maintains herself as a feme sole. Abbot v. Bayley, 6 Pick. R. 89. And see Gregorys. Pierce, 4 Met. 478. These last two cases, it will be seen, were de- cided in America ; but they seem well supported by the principles established in the English cases. The cases of Walford v. De Pienne, 2 Esp. R. 554 ; Franks v. De Pienne, 2 Esp. R. 587 ; and De Gaillon v. L'Aigle, 1 Bos. & Pull. 357, went much further. But it is questionable, whether these latter cases would now be supported in England, as they are greatly modified, if not overturned, by the cases of Kay v. De Pienne, 3 Campb. R. 123 ; Marshall v. Rutton, 8 T. "R. 545 ; Bogett V. Frier, 11 East, 301 ; Farrar v. Granard, 4 Bos. & Pull. 80 ; Clancey on Marr. Women, 57-62; Calvert on Parties, ch. 3, § 21, p. 265-274. * Mitf. Eq. PI. by Jeremy, 28 ; Edwards on Parties in Equity, 144 - 153 ; Cal- vert on Parties, ch. 3, § 21, p. 265-274. See Bein v. Heath, 6 How. U. S. R. 228 ; Burns v. Lynde, 6 Allen, 305. « Mitf. Eq. PI. by Jeremy, 28, 104 ; Cooper, Eq. PL 24, 30 ; Newsome v. Boyer, 3 P. WiU. 37, 38 ; 1 Fonb. Eq. PI. B. 1, ch. 2, § 6, note (k), (n), (p) ; Ringo V. Warder, 6 B. Monr. 514 ; Wilson v. Wilson, 6 Ired. Eq. 236. ^ Booth V. Albertson, 2 Barb. Ch. R. 313. * 2 Story on Eq. Jurisp. § 1368 ; Cannel v. Buckle, 2 P. Will. 243, 244 ; Lady Strathmore v. Bowes, 1 Ves. jr. 166 ; Kirk v. Clark, Prec. Ch. 275 ; Lampert v. Lampert, 1 Ves. jr. 21; Rivet v. Lancaster, Tothill, R. 93-97. Cases of this sort frequently arise, where the wife has separate property, or other rights, secured by a settlement, and by agreements for a settlement, and what is called the wife's equity to a settlement out of property bequeathed or otherwise coming to her, during the marriage, and not yet reduced into possession. See 2 Story on Eq. Juris, ch. 36, § 1403 - 1428 ; 1 Fonb. Eq. B. 1, ch. 2, § 6, note (k), (n), (p)- 66 EQUITY PLEADINGS. [CH. HI. tion of her husband, and therefore she is allowed to seek the protec- tion of some other person, who acts as her nezt friend ; and the bill is accordingly exhibited in her name by such nest friend.^ [And in a suit by a married woman, by her next friend, an attach- ment may issue against her, as a/eme sole, for disobeyjing an order of the court.2] But in this respect she is dififerently placed from an infant ; for no person can exhibit a bill as her next friend, with- out her consent ;^ whereas, an infant's consent to a bill filed in his name is not necessary.* Where a suit is brought by the husband in his own name and in that of his wife, it is considered as his suit only, and accordingly it will not be absolutely binding on her.^ [But in a suit against husband and wife, their joint answer may be read against her, with reference to her separate estate.^] § 62. In like manner, the husband may sue the wife in equity, for the purpose of enforcing his own marital rights against her property, whether such rights result from her ante-nuptial agree- ment, or from the general principles of law or equity ; ^ or when- ever he seeks relief upon some claim adverse to or in opposition to his wife ; ^ for (it has been well said) it is constant experience, that the husband may sue the wife, or the wife the husband, in equity, notwithstanding, at law, neither of them can sue the other.' § 63. In cases, ■where the wife has a separate property, it is often stated, that in respect to this property, she may sue and be sued in equity, as a feme sole.^" Perhaps this is laying down the ' Mitf. Eq. PI. by Jeremy, 28, 104, 105 ; Cooper, Eq. PI. 24, 30 ; 1 NewL CL Pr. ch. 2, § 1, p. 53 ; Brooks v. Brooks, Prec. Ch. 24 ; Griffith v. Hood, 2 Yes. 452 ; Elibank v. Montolieu, 5 Ves. 737 ; In re WUliams, 12 Beavan, 510 ; Howard V. Prince, 14 Beavan, 28. " Talylor v. Taylor, 19 Law Journ. 304 ; Ottway v. Wing, 12 Simons, 90. ' See Gambee v. Atlee, 2 De Gex & Smale, 745. * Mitf. Eq. PI. by Jeremy, 28 ; Cooper, Eq. PL 30 ; Andrews v. Cradock, Prec. Ch. 376 ; S. C. 1 Eq. Abridg. 239 ; Pennington v. Alvin, 1 Sim. & Stu. 264. ^ Grant v. Van Schoonhoven, 9 Paige, K. 255. Post, § 361. ° Callow V. Howl^, 1 De Gex & Sm. 531. ' 2 Story on Eq. Jurisp. § 1368 ; Cannal v. Buckle, 2 P. Will. 243, 244 ; Cal- vert on Parties, ch. 3, § 21, p. 265 - 274. * Hanrott v. Cadwallader, 2 Russ. & Mylne, 545. = Cannal v. Buckle, 2 P. Will. 243, 244 ; Ex parte Strangeways, 3 Atk. 478 ; 1 Fonbl. Eq. B. 1, ch. 2, § 6, note (n) ; Brooks v. Brooks, Prec. Ch. 24 ; Mitf. Eq. PI. by Jeremy, 28. " 2 Story on Eq. Jurisp. § 1368 ; Newsome u. Bowyer, 3 P. Will. 38, Mr. Cox's Note A. § 61 - 63.] BILLS IN EQUITY. — PLAINTIFFS. 57 rule too broadly ; for it is the ordinary course, at least for con- formity's sake, to join the husband in such cases as a party. In practice, where the suit is brought by the wife for her separate property, the husband is sometimes made a co-plaintiff. But this practice is incorrect ; and in all such cases she ought to sue, as sole plaintiff, by her next friend,^ and the husband should be made a party defendant ;^ for he may contest that it is her separate property, and the claim may be incompatible with his marital rights.^ [So, in a bill to set aside a will, which secures to a mar- ' Roberts v. West, 15 Georgia, 122. ' See Howard v. Prince, 10 Beavan, 294, 312. ' Sigel V. Phelps, 7 Simons, E. 239 ; S. P. Wake v. Parkir, 2 Keen, R. 59, 70, 73 - 75. In this last case, Lord Langdale went into a full exposition of the doctrine ; and admitted that the practice had often been different from the true rule. His language was as follows : " It has undoubtedly been very usual to file such bills, and many decrees have been made without objection in suits instituted by the husband and wife for the wife's separate estate, the court itself taking care that the separate estate of the wife, recovered in such suits, shall be protected from the husband. Thus, in Griffith v. Hood (2 Ves. sen. 452), the bill was filed by the husband and wife for the separate estate of the wife. Lord Hardwicke said : " Where there is anything for the separate use of the wife, a bin ought to be brought by her next friend for her ; otherwise it is her hus- band's bill. However, there have been many cases of such bills, and the court has taken care of the wife, and ordered payment to some person for her." And in that case he ordered the interest of the money, which was to be invested, to be paid to the wife, or some person authorized by her, for her separate use. And it is in this way that the court now commonly acts in such cases, and it does not appear that any valid objection can be made to the practice. If the amount of the sum recovered be all that the wife is entitled to, and if the sum s& recovered be secured to her separate use, she has aU that she could obtain in any suit, and could make no further or renewed claim against the accounting party, who had been compelled by the suit to satisfy her demand. In the case of Chesslya'u. Smith (8 Yes. 183), where stock was settled to the separate use of a married woman, and after her death for her husband absolutely, Sir W. Grant, in a suit instituted by the husband and wife, decreed a transfer of the stock to the husband on his giving personal security for the same ; and I think that many cases have occurred of suits by husband and wife, in which the wife may have seemed to require protection from the husband, and yet decrees have been made without objection. Nevertheless, whenever the attention of the court . has been drawn to the subject, such suits have always been considered to be the suits of the husbands, and to be instituted and prosecuted by them, and under their influence. The husband, having the power to use his wife's name, may file the bill without her knowledge, and may prosecute it in a manner not favorable to her interests. If the wife's claim be not of a liquidated or specific sum, but of a sum to be ascertained by an account, though the court might, and certainly 58 EQUITY PLEADINGS. [CH. HI. ried woman, and her issue, a share of the testator's property, for her separate use during coverture, the wife should be made a de- would, protect her in the enjoyment of the sum recovered upon the account, that sum might not be the just amount of her right, because the account taken under the proceedings may not have been properly taken ; and if the principle be, as I think it is in those cases, that the wife is, as to her separate estate, entitled to prosecute the suit by her own authority, independently of her husband, there seems to be no reason Why a suit, instituted by her husband, should bind her, — why she may not, at any time, institute a new suit for the same matter by her next friend, or why a decree (not being a decree for a specific sum secured by the court for her separate use, and there being no evidence that it was prosecuted with her consent and authority) should be a bar to a new suit instituted by her next friend. It is true, as was stated by Sir John Leach, in Smyth v. Myers, (3 Madd. 474,) that the hutband, by joining the wife as a co-plaintiff, admits, that the prop- erty, sought to be recovered or secured, is the separate property of the wife ; but the wife appears to be further entitled to have the amount of the sum to be recov- ered or secured, ascertained by a proceeding of her own, independently of her husband, and the party sought to be charged is entitled to be protected against a subsequent independent claim of the wife. And in the subsequent cause of Hughes V. Evans, (1 Sim. & Stu. 185,) Sir J. Leach, upon the authorities of Grif- fith V. Hood, and Pawlet v. Delavel, there cited to him, stated, that where the hus- band and wife join in the suit as plaintiffs, or answer as co-defendants, it is to he considered as the suit or defence of the husband alone, and that it will not preju- dice a future claim by the wife in respect of her separate estate ; and on that opinion he acted in Keeve v. Dalby (2 Sim. & Stu. 464.) It was argued, that these authorities do not apply to cases in which there is no dispute between hus- band and wife ; but in considering them, I think that they do not admit of that lim- itation, and it is necessary to regard the interests of aU parties. Not only ought the wife to be protected in the enjoyment of her separate property, but the par- ties also, who are sued, ought to be protected against concurrent or consecutive demands of the husband suing in the names of himself and his wife, and of the wife suing by her next friend. If such suits were allowed, it is obvious that gre&t oppression might be practised by the husband and wife acting in concert together. It is, I presume, for reasons of this nature that the vice-chancellor has, in several instances, the notes of some of which I have seen, made orders to amend bills filed by the husband and wife for the separate estate of the wife, by making the hus- band a defendant, and inserting the name of a next friend for the wife as plain- tiff; and in the case of Sigel v. Phelps, (7 Sim. 239,) he intimated his intention to dismiss the bill, if the defendants would not consent to a decree. And it is for the same reason that I have, though I admit with reluctance, come to the conclu- sion that I ought to allow this demurrer. I say with reluctance, because I think that suits thus constituted are of familiar occurrence, and I am aware that many decrees have been made on such suits without any inconvenience arising. I thmk also, that in cases in which the husband and wife are not hostile, very little, if any additional security is obtained for the wife by the appointment of a next friend, the probability being, that in such cases the next friend is appointed by the wife on the recommendation of the husband. If a bill by husband and wife for § 63.] BILLS IK EQUITY. — PLAINTIFFS. 59 fendant, and not a joint complainant with her husband, for her in- terests are in conflict with his.^] Where, indeed, the husband has an adverse interest, he is a necessary and proper party defendant. Where he has no such interest, it is still proper to join him in the suit as the lawful protector of his wife's interest, in conformity to the rule of law.^ Where the wife sues a stranger, or is sued by a stranger, in respect to such separate property, the husband is al- ways joined as a party defendant, if he is within the country, and capable of being made a party .^ Where he is not within the country, so that process cannot be served upon him, the suit, if against the wife to charge her separate estate, may be carried on without him, with the leave and under the direction of the court.* the wife's separate estate were brought to a hearing,' if the separate estate con- sisted of a specific sum recovered and payable, and capable of being secured to the separate use of the wife, I should think that a decree ought to be made. And" in many other cases, I apprehend that, with no more attention than the court owes to the suitors, effectual means might be employed to ascertain whether the suit was carried on with the free consent of the wife, and to secure the de- fendants from any further claims on her part. But confining myself to the pres- ent case, in which my attention must be exclusively directed to the statements made in the bUl, in which the objection is made by the defendants at the earliest period in the cause, and in which the separate estate of the wife partly consists of a sum to be ascertained by account, I think myself bound to give effect to the objection.'' See Calvert on Parties, ch. 3, § 21, p. 265-274. [But in a petition by a married woman under Stat. 2 & 3 Vict. c. 54, for access to her children in the custody of the father, it is not necessary that she sue by a next friend. In re- Mjirgery Groom, 7 Hare, 38.] ^ Alston V. Jones, 3 Barb. Ch. K. 397. ' Lillia V. Airey, 1 Ves. jr. 278 ; 2 Story, Eq. Jurisp. § 1368 ; Smyth v. Myers, 8 Madd. K. 474. ' Ante, § 61 ; Thorby v. Yeats, 1 Younge & Coll. New K. 438 ; Hamlm v. Bridge, 24 Maine, 145 ; Archibald v. Means, 5 Ired. Eq. R. 230. * Dubois V. Hole, 1 Eq. Abridg. 65 ; S. C. 2 Vem. 614 ; Bell v. Hyde, Free. Ch. 328 ; Mitf Eq. PI. by Jeremy, 105 ; Bunyan v. Mortimer, 6 Madd. R. 278 ; Garey v. Whittingham, 1 ^im. & Stu. 163. Mr. Fonblanque, speaking on this subject (1 Fonbl. Eq. B. 1, ch. 2, § 6, note (p), says : " There are numberless cases in which the wife has been allowed, through the medium of her prochein ami, to sue her husband in respect to her separate property. But I have not been able to find in any case at law or in equity, in which she has been allowed to sue or be sued by a stranger merely in respect to her separate property, without her hus- band being plaintiff or defendant." Mr. Cox, in his note (A) to Newsome v. Bowyer (3 P. Will. 38), says generally, that " A feme covert, having a separate estate, may, in a court of equity, be sued as a feme sole, and proceeded against without her husband ; for, in respect to her separate property, she is.looked upon as^&feme sole." He cites Dubois v. Hole, 2 Vern. R. 614, and Bell v. Hyde, Prec. 60 EQUITY PLEADINGS. [CH. HI. [In a bill for specific performance against the husband for the sale' of an estate to the plaintiff, the wife is not a proper party, merely because she claims the purchase-money, and has taken for- cible possession of the title-deeds, and refuses to part with them.^ But she is a proper party in a bill to foreclose a mortgage signed by her and her husband.^] § 64. In the next place in relation to idiots and lunatics. The care and commitmen^t of the custody of the persons and estates of idiots and lunatics are in England the special prerogative of the crown, and are always intrusted by the crown under the royal sign-manual to the person holding the great seal.^ By virtue of this authority, whenever any person is by an inquisition found to be an idiot or lunatic,, the person, holding the great seal, commits the custody of the person and estate of such idiot or lunatic to some suitable person or persons, who is or are since called the committee or committees of the idiot or lunatic. In all such Cases the idiot or lunatic must sue by the committee or committees of their estates, all of them being made parties plaintiffs.* Some- Ch. 328 ; in each of whicli cases the husband was made a party to the bill ; but it being shown that he was beyond sea, the court held that the service on the hus- band might be dispensed with, and that the process was regular against the wife alone. In Travers v. Bulkely, 1 Ves. 386, Lord Hardwicke recognized the case in 2 Vern. R. 614 ; but put the decision upon another ground, that the wife had voluntarily appeared and obtained time to answer. He left the point open, whether the wife could be sued without her husband. Mr. Raithby, in his note to 2 Vern. 614, has referred to some MS. cases, proceeding on the general ground. In Kegnes v. Lewis, 1 Ch. Cas. 35, where a/eme covert sued without her husband, a demurrer for that cause was overruled. But the circumstances of the case do not appear ; and the husband may have been a party defendant, as his interest was concerned. See also Tothill, K. 93 - 96 ; Hamlin v. Bridge, 24 Maine, 147 ; Alston V. Jones, 3 Barb. Ch. E. 399. See also Plomer v. Plomer, 1 Ch. Rep. 68 ; Ante, § 63, note. ' Muston V. Bradshaw, 15 Simons, 192. " Johns V. Reardon, 3 Md. Ch. Dec. 57. . * Mitf. Eq. PI. by Jeremy, 29 ; 2 Story on Equity 'jurisp. § 1362-1365 ; Cal- vert on Parties, ch. 3, § 26, p. 304. * Mitf. Eq. PI. by Jeremy, 29 ; 1 Newl. Ch. Pr. ch. 2, § 1, p. 54 ; Com. Dig. Chancery, E. 2 ; Cooper, Eq. PI. 31, 32 ; Fuller v. Lance, 1 Ch. Cas. 19 ; Attor- ney-General V. Woolrich, 1 Ch. Cas. 153 ; Ridler v. Eidler, 1 Eq. Abridg. 279 ; Attorney-General v. Panther, 2 Dick. 748 ; Attorney-General v. Tiler, 1 DicL 378 ; Shelford on Idiots and Lunatics, ch. 10, § 1, p. 415, &c. In actions at law, idiots (it is said) must sue and defend in their own name, and appear in person, and not by guardian, or prochein ami, or attorney, but by any one who prays to be admitted, may sue as their next friend. But in actions at law, lunatics, if of § 63, 64.] BILLS IN EQUITY. — PLAINTIFFS. 61 times, indeed, informations are exhibited by tlie Attorney-General on behalf of idiots abd lunatics, considering them as under the pe- culiar protection of the court, and particularly, if the interests of the committee have clashed, or may clash with their interests ; or if they have no committee.^ But in such informations it is not proper to name the lunatic as a relator, but as party ; and it is the common practice to require some third person to be named as relator, that he may be answerable for the costs.^ age, must appear by attorney ; and if within age, by guardian. Co. Litt. 135 (b], Beverly's case, 4 Co. Kep. 124 (6) ; 2 Saund. K. 333, Sergeant Williams's note (note) ;■ Com. Dig. Idiot, D. 7. In Ortby v. Messere, 7 John. Ch. K. 139, Mr. Chancellor Kent held, that it is not necessary for a lunatic to be made a .party plaintiff to a bill by his committee, to set aside an act done while the party was under lunacy. On that occasion he used the following language : " It is not necessary for the lunatic herself to be a party plaintiff with her committee, to set aside an act done by her while she was under mental imbecility. The same ob- jection was made in the case of the Attorney-General, on behalf of Smith, a luna- tic, V. Parkhurst (1 Ch. Cas. 112), and overruled by the Lord Keeper. The suit, in that case, was for relief against an act done by the lunatic while a lunatic. In another case, Ridler v. Kidler (1 Eq. Cas. Abr. 279), the biU was by the luna- tic and his commiiiee to set aside a settlement made bj' him while a lunatic, and a demurrer was put in, because the lunatic was a party with his committee, and the demurrer was overruled. It would seem, therefore, to be immaterial, and but matter of form. The lunatic may be joined with the committee, or omitted, ac- cording to these caseS. There was a distinction suggested in the case of the At- torney-General, on behalf of Woolrich v. Woolrich (1 Ch. Cas. 153), between the cases of a bill to set aside an act done while the party was, and before he was, a lunatic ; but that distinction is not to be found in the two cases which have been cited. The general practice, however, is to unite the lunatic with the committee, as was done in 2 Vern. 678. But there does not appear to be any use in it, or any necessity for it, as the committee have the exclusive custody and control of the estate and rights of the lunatic. The lunatic may be considered as a party by his committee ; and, like trustees of an insolvent debtor, the committee hold the estate in trust, under the direction of this court." See also Brasher's Ex'ors V. Van Cortlandt, 2 John. Ch. K. 245, 401. Edwards on Parties in Equity, 294 - 316 ; Calvert on Parties, ch. 3, § 26, p. 303, 304. 1 Mitf. Eq. PI. by Jeremy, 29 ; Attomey^General v. Woolrich, 1 Ch. Cas. 153 ; Attorney-General v. Parkhurst, 1 Ch. Cas. 113 ; Attorney-General v. Panther, 2 Dick. 748. 2 Attorney-General v. Tiler, 1 Dick. 378 ; S. C. 2 Eden, R. 230. In some of the cases a distinction seems to be taken between an information in behalf of an idiot, and one in behalf of a lunatic. It is said, in the case of the former, the idiot need not be a party. In the case of the latter, the lunatic must. See At- torney-General V. Woolrich, 1 Ch. Cas. 153 ; Attorney-General v. Tiler, 1 Dick. 378 ; S. C. 2 Eden, 230. Perhaps this may ayise from the difference, that in the EQ. PL. 6 62 EQUITY PLEADINGS. [CH. in. § 65. In some of the states in America, the courts of equity are intrusted with the like authority to appoint committees for idiots and lunatics ; and in such cases,' the idiots and lunatics sue by their committees ; [but it is not necessary that the lunatic him- self should be a party with his committee, although he may be.^] In other states, idiots and lunatics are by law placed under guar- dians appointed by other courts, and ordinarily by the courts of probate of the state. In such cases, the idiots and lunatics sue and defend suits by their proper guardians, unless some other is specially appointed for that purpose.^ § 66. Where persons are incapable of acting for themselves, although not strictly either idiots or lunatics, the suit may be brought in their name, and the court will authorize some suitable person to carry it on as their next friend.^ But in every such case it is in the discretion of the court to allow the suit to proceed, or not ; and it will order a stay of proceedings, or the bill to be taken off the file, if the suit is deemed improper.* § 67. In the next place, who may be sued in a bill in equity. In general it may be stated, that those persons, who may sue in equity, may also be sued. But as there is some diversity as to the extent and manner of making defence by persons, who labor under an absolute or a partial incapacity, it will be necessary, although case of an idiot the king has a beneficial interest in his estate ; and in the case of a lunatic he has only a trust while he is insane. See 2 Story, Comm. on Eq. Jurisp. § 1336, and notes. Where an information is filed in behalf of a lunatic ■who has uo committee, the court will give directions to have a committee appoint- ed, and in the mean time proceed to make orders for the care of the property. Mitf. Eq. PL by Jeremy, 29, 30, and note. Where in a suit the committee of an idiot or a lunatic has an adverse interest, the suit may be instituted by another person, specially authorized by the court. Mitf. Eq. PI. by Jeremy, 29, 30, 104; Cooper, Eq. PI. 32. ^ See Gorham v. Gorham, 3 Barb. Ch. E. 24, where the subject is examined at length. - Thus, for example, in New York, by statute, the Court of Chancery has the care and custody of idiots and lunatic^, and entire jurisdiction over the subject in all its general relations. Revised Code of New York, 1829, Vol. 2, Pt. 2, ch. 5, tit. 2, p. 51, &c. In matter of Wendell, 1 John. Ch. R. 600 ; Brasher v. Van Cortlandt, 2 John. Ch. R. 242, 246. On the other hand, in Massachusetts the courts of probate have the exclusive authority to appoint guardians of idiots ani lunatics. See Revised Statutes of Massachusetts, 1836, Pt. 2, tit. 71, ch. 79, § 8, 9, p. 490. See Edwards on Parties in Equity, 180, 183. Id. 210, 211. * Mitf. Eq. PI. by Jeremy, 30 ; Wartnaby v. Wartnaby, Jac. R. 377 ; Cooper, Eq. PI. 29-31. * Wartnaby v. Wartnaby, Jac. R. 377. §65-69.] BILLS IN EQUITY. — DEFENDANTS. 63 in a very brief manner, to state the general principles and prac- tice applicable to defendants. § 68. A bill may be exhibited against all bodies politic and corporate, against all persons not laboring under any disability, against aliens, and -against infants, married women, idiots, and lunatics ; ^ and also generally against persons by law disabled to institute or maintain a suit ; for they cannot plead their disability in their defence.^ § 69. In England, the king and queen, although they may sue, are not liable to be sued ; and in America, a similar exemption generally belongs to the government or state. But in England, when the interest of the crown, or of those who are under its particular protection, is concerned in the defence of a suit in equi- ty, the Attorney-General, or, in the vacancy of that office, the So- licitor-General, is a necessary party to make a defendant, to sup- port that interest.^ But this doctrine is to be understood with some limitations. Where the rights of the crown are concerned, if they extend only to the superintendence of some public trust, as in the case of a charity, the Attorney-General may be made a party to sustain those rights.* And in other cases, where the crown is not in possession, and a title vested in it is not impeached, and its rights are only incidentally concerned, it has been generally con- sidered, that the Attorney-General may be made a party in respect of those rights ; and the practice has been accordingly.^ But where the crown is in possession, or any title is vested in it, which the bill seeks to devest or affect, or its rights are the immediate and sole object of the suit, the proper mode of redress is not by a bill, but by a petition of right.® Upon such petition the crown ordina- rily directs, that right be done to the party ; and the petition is then referred to the chancellor to be executed according to law, and directions are given, that the Attorney-General should be ' Mitf. Eq. PL by Jeremy, 30, 102, 103 ; Edwards on Parties in Equity, 151 ; Id. 180, 181 ; Id. 195 ; Id. 211 ; Id. 218. ^ Cooper, Eq. PI. 27; Calvert on Parties, ch. 3, § 18, p. 255-260; Id. § 21, p. 266-273; Id. § 26, p. 303, 304; Id. § 29, p. 316, 317. ' Mitf. Eq. PI. by Jeremy, 30, 102 ; Calvert on Parties, ch. 2, § 26, p. 301 - 308. * Mitf. Eq. PI. by Jeremy, 30. • ' Mitf. Eq. PI. by Jeremy, 30; Cooper, Eq. PI. 22; Balch v. Wastell, 1 P. Will. 445 ; Dolder v. Bank of England, 10 Ves. 352. ^ » Cooper, Eq. PL 22, 23 ; Mitf Eq. PL by Jeremy, 31 ; Reeve v. Attorney- General, 2 Atk. 223 ; Hovenden v. Lord Annesley, 2 Sch. & Lefr. 617, 618. 64 EQUITY PLEADINGS. [CH. IH. 9 made a party to the suit.^ In some cases, indeed, a suit may be instituted in the Court of Exchequer, as a court of revenue and general auditor of the king, and relief may be there obtained by the plaintiff against the crown, the Attorney-General being made a party .^ § 69 a. A similar exemption from being sued applies to the case of foreign sovereigns ; for they are not suable in the courts of a foreign country, altljough they may be personally found within the dominions of such foreign country.^ § 70. Bodies politic and corporate, and persons of full age, not laboring under any disability, defend a suit by themselves. [And corporations can be sued only in their corporate name, unless' en- abled by their act of incorporation, to come into court in the name of some other person, as their president, cashier, &c.*] But in- fants, idiots, and lunatics are incapable, by themselves, of defend- ing a suit, as they are of instituting a suit. Infants (as we hdve seen) institute a suit in equity by their next friend ; but they must defend a suit by a guardian, who is appointed by the court, and is usually their nearest relation, not concerned in interest in the matter in question.^ [But although a suit may proceed against an infant, defending by his guardian, no decree^ for the conveyance of real estate, will be made against him until he comes ' Ibid. In America no such general remedy by a petition of right exists against the government ; or, if it exists at all, it is a privilege created by statute in a few states only. In cases, where the government has an interest in the subject as a matter of public trust, it is presumed, that the Attorney-General may be made a defendant, as he may be in Eno-land. " Mitf. Eq. PI. by Jeremy, 31; Pawlet v. Attorney-General, Hardres, R. 465; Pool w. Attorney-General, Parker, K. 272; Reeve v. Attorney-General, 2 Atk. 223. ^ Duke of Brunswick v. The King of Hanover, 6 Beavan, R. 1. " Mauney v. Motz, 4 Ired. Eq. R. 195. " Mitf. Eq. PI. by Jeremy, 103 ; Cooper, Eq. PI. 29, 109; Jongsma v. Pfiel, 9 Ves. 357; Williams u. Wynn, 10 Ves. 159; Tappen v. Norman, 11 Ves. 563; Hill V. Smith, 1 Madd. R. 290; Edwards on Parties in Equity, 193, 211; Cal- vert on Parties, ch. 3, § 29, p. 316, 317. The 87th of the Equity Rules of the Supreme Court of the United States, January Term, 1842, provides as follows: " 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 incapable to sue for themselves. All infants and other persons so in- capable, may sue^y 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.'' § 69, 70.] BILLS IN EQUITY. — DEFENDANTS. 66 of age.^] Idiots and lunatics defend a suit by their committees, who are by an order of court appointed guardians ad litem for that purpose, as a matter of course, in ordinary circumstances.^ ' Whitney v. Steams, 11 Mete. 319; Coffin v. Heath, 6 Mete. 76. = Mitf. Eq. PL 103, 104 ; Westcombe v. Westcombe, 1 Dick. R. 233 ; Coopef, Eq. PL 31, 32; Shelf, on Idiots and Lunatics, ch. 10, § 2, p. 425, &c. In Brasher's Ex'ors v. Van Cortlandt, (2 John. Ch. R. 242, 245,) Mr. Chancellor Kent held it not necessary in .New York to make the lunatic himself a party defendant to a bill for payment of his debts, but his committee only, where he had a committee. His language on that occasion was : " The bill is against the committee, and seeks payment of a debt due from the lunatic ; and the question arises whether the lunatic ought to have been joined with his committee as a party defendant. If he had been joined, it would seem to be a mere matter of form, and the committee would have been directed, as of course, to put in his answer, as his guardians. It would have been their answer, though in his name. If he be made a defendant, he is to answer by his committee. (Dickens, R. 233, 460.) When the committee are made defendants, there can be no use in joining the lunatic also, for the custody of the estate is no longer in him, but in this court, under the administration of the committee. Though the books speak of the luna- tic as a proper party, (Lloyd's case, Dickens, 460,) yet I do not perceive its neces- sity. The payment of the debts due from the lunatic is now usually sought by a petition to the court, as the funds are supposed to be under its entire control.". He added, " The custody of the lunatic is committed, in England, not to the Court of Chancery, but to an individual selected by the crown, who is generally, though not always, the person who has the custody of the great seal. (3 Atk. 635 ; Dickens, 553.) But, here, the charge of the person and estate of the lunatic, and his maintenance, is expressly committed to the chancellor, (N. R. Laws, Vol. I. 157,) and the duty of providing for the payment of the debts is specially enjoined. For this purpose, the committee is to exhibit, under oath, within six months from his appointment, an inventory of the estate, debts, and credits of the lunatic ; and when the personal estate shall be insufficient for the discharge of the debts, he is to present a petition to the chancellor, setting forth the particulars and amount of the estate and debts. If the personal estate shall appear to be insufficient, it is made the duty of the chancellor to cause so much of the real estate to be sold as shall be necessary for the discharge of the debts. These provisions render the payment of the debts out of the lunatic's estate no longer a matter of discretion, but of indispensable duty ; and they contemplate the committee as being charged (though, undoubtedly, under the control and direction of this court) with a trust to be performed for the benefit of creditors, and an agency in the payment of the debts and the administration of the estate. To what extent these new duties of the committee may necessarily lead, I need not now examine, nor am I altogether prepared to say. The view of the subject under our statute is, certainly, greatly varied from that under the English law; and I entertain no doubt that the com- mittee may be called upon in this court by the creditors for the payment of their debts, without making the lunatic a party. This question of necessary parties is always more or less a matter of discretion, depending on convenience. In this 6* 66 EQUITY PLEADINGS. [CH. III. But if an idiot or lunatic has no committee, or the committee has an interest opposite to that of the person whose property is in- trusted to his care, an order may be obtained for appointing another person, as guardian ad litem, for the purpose of defending the suit.i In like manner, if a person is in the condition of an idiot, or lunatic, although not so found by an inquisition, or if, by reason of age or infirmities, hd is reduced to a second infancy, the court will, upon information, direct a guardian ad litem to be appointed for him, to defend a suit against him.^ § 71. In regard to married women, ordinarily their husbands must be joined with them as defendants in the suit, and their an- swer must also be joint.^ There are exceptions, however, to the rule, in both of its requirements. A married woman may be made a defendant, and answer as a feme sole (even, it is said, in some cases without any order of coTirt) ; as, for example, when- ever her husband is plaintiff in the suit, and sues her as defend- ant ; for in sxich a case he elects to treat her as a feme sole for the purposes of the suit.* So, where her hushand is an exile, or has case, it would be qmte absurd to bring in a party who has no capacity or power of action, except by the very persons already before the court as his trustees, and when the court is only to look to the certainty of the debt, and to the state of the assets, in order to provide for its payment." See Edwards on Parties in Equity^ 211-216. ' Mitf. Eq. PI. by Jeremy, 103, 104; Snell v. Hyatt, 1 Dick. K. 287; Hewlett V. Wilbraham, 5 Madd. R. 423 ; Lloyd v. , 2 Dick. K. 460. 2 Mitf. Eq. PI. by Jeremy, 103, 104; Cooper, Eq. PI. 32, 33, 109; Brassing- ton V. Brassington, 2 Anst. E. 369; Leving v. Caverly, Prec. Ch. 229; Wilson v. Grace, 14 Ves. 172; Mr. Cox]^s note (B) to 3 P. Will. Ill ; Gason v. Garnier, 1 Dick. 286. " Mitf Eq. PI. by Jeremy, 104, 105 ; Cooper, Eq. PI. 30, 31, 36 ; Garey v. Whittingham, 1 Sim. & Stu. 163; Lillia v. Airey, 1 Ves. jr. 278; Le Neve y. Le Neve, 3 Atk. 648, 649; Clancy on Marr. Women, ch. 4, p. 54-63; Id. 69, 71 ; Edwards on Parties in Equity, 151 - 158 ; Calvert on Parties, ch. 3, § 21, p. 266 - 278. [But where in a joint answer of a husband and wife to a creditor's bill, for payment out of an estate, of which the wife was administratrix, the wife alone set up the statute of limitations, a^ a defence to the suit, it was held that her interest was not so merged in the coverture that the court would disregard her separate defence, and that the statute was for the protection of the estate, sufficiently pleaded by the wife alone. Beeching v. Morphew, 8 Hare, 129.] * Mitf. Eq. PL by Jeremy, 104, 105 ; Cooper, Eq. PI. 30, 31 ; Brooks v. Brooks, Prec. Ch. 24 ; Ex parte Strangeways, 3 Atk. 478 ; Ainslee v. Medlicott, 13 Ves. 266. In such a case, the wife does not put in her answer by a guardian; but in her own name, as a, feme sole. Ex parte Strangeways, 3 Atk. 478. §70,71.] BILLS IN EQUITY. — DEFENDANTS. 67 abjured the realm, or has been transported under a criminal sen- tence, or is an alien enemy, she may be 'sued, and answer as a feme sole} But, generally, a married woman cannot answer sep- arately, when her husband is joined, or ought to be joined, as a defendant, in the suit, without an order of court for that purpose, founded upon special circumstances.^ Thus where a married wo- man claims as a defendant, in opposition to her husband, or lives separate from him, or disapproves of the defence, which he wishes her to make, she may obtain an order of the court for liberty to answer and defend the suit separately ; and in such a case her answer may be read against her.^ So, if a married woman obsti- nately refuses to join in a defence with her husband, the latter may obtain an order to compel her to make a separate defence.* [So if the husband has, upon leave, answered separately, the wife may, upon order, afterwards file her separate answer.^] So, if the husband be abroad, and not answerable to the jurisdiction, the plaintiff in the suit may obtain an order, that she shall answer sep- arately.^ But except under circumstances of this and a similar nature, a married woman can defend a suit only jointly with her husband.'^ 1 Mitf. Eq. PI. by Jeremy, 104, 105; Cooper, Eq. PI. 30, 31; Portland v. Prodgers, 2 Vern. 105 ; Co. Litt. 132 (6), 133 (a). ' Garey v. Whittingham, 1 Sim. & Stu. 163 ; Duke of Chandos v. Talbot, 2 P. Will. 371; Anon. 2 Cas. Ch. 39; Ward v. Meath, 2 Cas. Ch. 173; Com. Dig. Chancery, K. 2. ' Mitf. Eq. PL by Jeremy, 104, 105 ; Cooper, Eq. PL 30, 31 ; Ex parte Bal- sam, 2 Atk. 50 ; Anon. 2 Eq. Abridg. 66 ; Wybourn v. Blount, 1 Dick. R. 155 ; Duke of Chandos v. Talbot, 2 P. Will. 371 ; Travers o. Bulkely, 1 Ves. 383 ; S. C. 1 Dick. K. 138; Jackson v. Haworth, 1 Sim. & Stu. 161; Com. Dig. Chan- cery, K. 2. * Mitf. Eq. PL by Jeremy, 105 ; Cooper, Eq. PL 30, 31 ; Pain v. , 1 Ch. Cas. 296 ; Garey v. Whittingham, 1 Sim. & Stu. 163 ; Barry v. Cane, 3 Madd. R. 472 ; Murriet v. Lyon, Bunb. R. 175. * Bray v. Akers, 15 Simons, 610. ' Mitf. Eq. PL by Jeremy, 104, 105 ; Cooper, Eq. PL 30, 31 ; Portman v. Pop- ham, Tothill, R. 75 [96] ; Garey v. Whittingham, 1 Sim. & Stu. 163 ; Bell v. Hyde, Prec. Ch. 328, 329 ; Plomarw. Plomer, 1 Ch. Rep. 68 ; Travers v. Bulkely, 1 Ves. 383 ; S. C. 1 Dick. R. 138 ; Tarlatan v. Dyer, 10 Ves. 442 ; Bunyan v. Mortimer, 6 Madd. R. 278 ; Bushell v. Bushell, 1 Sim. & Stu. 165 ; Dubois v. Hole, 2 Vern. 613 ; Chambers v. Bull, 1 Anst. 269 ; Leithley v. Taylor, 1 Dick. R. 373 ; Glover r. Young, Bunb. E. 167. ' Mitf. Eq. PL by Jeremy, 105 ; Cooper, Eq. PI. 31 ; Edwards on Parties in Equity, 151 - 158 ; Calvert on Parties, ch. 3, § 21, p. 266 - 273. gg EQUITY PLEADINGS. [CH. IV. CHAPTER IV. PROPER PARTIES TO BILLS. [* § 72. All who have an interest in the object of a suit must be parties. § 73. The party interested in the residue is especially necessary. § 74. The party bound to indemnify should be brought in. ^ 74 a. In foreclosure suits, both the executor and heir should join. But exceptions for defect of parties cannot be taken at the hearing. § 75. The objection may be taken by demurrer, plea, or answer. 5 76. Distinction between law and equity, as to parties. § 76 a. Nominal parties often joined for conformity. § 76 b. Parties remotely interested not required to join. § 76 c. Those materially interested in the subject or object of a suit should generally be made parties. § 77. Bill not dismissed for want of parties, unless that is indispensable. §78. Parties beyond the jurisdiction cannot be joined. § 79. This rule prevails in the courts of the United States. § 80. But the facts should be set forth in the bill. § 81. Absent parties may be so essential as to defeat the suit. § 82. Bills for partnership accounts, and against fraudulent assignees, of this character. § 83. So also bills to enforce debts against trust property. § 84. Bill of foreclosure of deceased mortgagor's right must join his heir. § 85. Account against absent party cannot be taken. § 86. So also where different owners claim the fund by independent titles. § 87. Court may act upon absent party, through others. § 88. But in such cases the absent party may impeach the title. § 89. Courts often proceed to final decree without all parties being joined. § 90. Numerous parties may be represented by a few. § 91. Personal representatives, not appointed, cannot be joined. <) 92. So, too, if the parties are unknown, and the bill is brought to discover them. § 93. Other illustrations of the omission of important parties. § 94. Parties inconveniently numerous need not be joined. § 95. But this fact should appear on the face of the bill. § 96. This representation of parties, admitted, to avoid the denial of justice. § 97. Enumeration of this class of exceptions, with the grounds of them. § 98. Suits for prize-money, among privateersmen, of this character. ^ 99. Creditors' bills are of a similar character. § 100. Lord Redesdale's exposition of the question. § 101. Even creditors, claiming prior liens, may represent the others. § 102. Different classes of creditors, under trust deed, may sue separately. § 103. This indulgence, in creditors' suits, seems indispensable. § 103 a. Insolvency may be an excuse for not joining debtor. § 104. One legatee may sue on behalf of himself and the others. § 105. So also may one distributee. § 106. Such a suit is a defence to the executor, &c. § 107. One may represent the whole, in cases of voluntary association. CH. IV.] PARTIES TO BILLS. 69 § 108. Illustration from the inconvenience of joining numerous parties. § 109. The same rule applies to the shareholders in joint stock companies. § 110. Same rule applied to associations for mutual aid. §111. So also to mutual insurance associations. § 112. So too, where the commissioners are allowed to assess towns. § 1 13. The same rule applied to the shareholders of a canal. § 114. The minority allowed to bring suit against will of majority. § 114 a. Congregation may thus sue their trustees. § 115. So too a few may sue on behalf of a numerous partnership. § 115 a. The trustees, or part of directors, may sue on behalf of company. § 115 6. One member of dissolved club may sue for self and others. § 116. Committee, a few members, made defendants for all. § 117. Further illustration of subject as to defendants. § 118. So where the shares of an interest become indefinitely subdivided. § 119. Bill holders may maintain bill against part of the stockholders. § 120. Some defendants may represent others, even where the interests are not identi- cal, if there is a community. § 121. This rule applies to manorial, parochial, and other rights. § 122. Suits as to rent-charge need not include all the terre-tenants. § 123. So also of claims of service, from a district or neighborhood. § 124. It is upon this ground that bills of peace are allowed to be brought by, or against a few, representing others. 4 125. This rule extends to common rights of fishery. § 125 a. But if the party bringing the suit, on behalf of himself and others, is disabled to sue, it will defeat the suit. § 125 6. This rule applies to the proprietors of adjoining dwellings, having common easements and servitudes. § 126. Where there is a Common interest, all must be represented. § 127. Bills for contribution maintained against part of contributors. § 128. The same rule applied to a portion of the stockholders of a bank. § 1 29. So also to mining interests. § 130. Parties specifically affected by decree, not dispensed with. § 131. As where the minority of a partnership sue for the control of the funds, against the majority. § 131 a. So where it does not appear all have a common interest. § 132. So upon a bill to dissolve a joint stock company. § 133. So, too, where the bill seeks to establish a lien against parties ever so numerous, all must be joined. § 134. How far assignors are necessary parties. § 135. Comments upon the grounds of some of these rules. § 135 a. Courts of equity should not insist too strenuously upon the joinder of im- possible parties. § 135 6. Recent decisions favor this construction. § 135 c. Some of shareholders, representing all, may sue finance committee. § 136. The difficulty of defining who are necessary parties. § 137. Not important what is the precise nature of the interest. § 138. Parties are often required to be joined, although not indispensable. § 139. The frame of the bill may dispense with parties, otherwise necessary. § 140. Parties only incidentally interested need not be joined. § 141. Executors and administrators represent all the interests of the estate. § 142. One party may represent all interested in the subject-matter. § 143. Thus the trustees sufficiently represent the association. 70 EQUITY PLEADINGS. [CH. IV. § 144. Thus the first tenant in tail represents all in remainder, or reversion. § 145. And for want of such tenants the next one intitled, or the tenant for life, may represent those interests. § 146. And this right of representation extends to plaintiffs also. § 147. But this rule will not extend to contingent interests, in all cases. § 148. It is not requisite to cite the representative of a prior lien. § 149. How far ti-ustees represent the interests of others. § 1 50. In later cases the cestuis que trust are commonly joined. § 151. Tenants and lessees need not be joined. § 152. Illustrations of the foregoing principles will follow. § 153. How far the assignor is a necessary party. § 154. Assignee, generally, a necessary party. § 1 54 u. Intermediate assignors, and assignees, are also. § 155. Assignor being a trustee, is a necessary party. § 156. Assignee, pendente lite, not necessary party. 4 157. In assignments for benefit of creditors, assignees represent creditors. \ 158. Same rule as to bill to establish priorities. § 158 a. Assignments by operation of law. § 159. Joint tenants, and all parties having joint interests, must join. § 160. Heirs of deceased party should be joined, in bills for specific performance. . § 161. Parties only incidentally, or contingently, interested, need not be joined. § 162. All parties affected by common charges must be joined. § 163. How far heir or devisee necessary party to bill, to enforce creditor's claim against real estate. • § 164. Bill to enforce charges on realty should joint all having common interest. § 165. All interests to be affected should be represented. § 166. This rule applies to part owners of ships, &c. § 167. And to copartners also. § 167 a. And same rule applies to bills intended to reach the private estate of de- ceased partners. § 168. But not, where a share of profits is received in lieu of wages. § 168 a. Different corporations having common interests must be joined. § 1 69. In suits affecting joint obligations all parties to the contract should join, or be joined. § 169 a. Who necessary parties, in suits by sureties. 5 170. Executors and administrators should be joined, in suits affecting the assets. § 171. In general the omission cannot be excused. § 1 72. They must be joined, in suits to enforce a charge upon real estate. § 173. So also in bills to enforce debts against the heir. § 174. Equity requires all the parties, that it may give full relief. f 175. But in enforcing a mortgage, against the heir, it is not required to join the executor. § 176. But in general a bill to administer real assets must join lie heir, or devisee, and the personal representative. § 177. In bills for specific performance of contracts, for sale of land, where either-party has deceased, the same parties are required. §177 a. The same rule applies, where the bill is brought by the personal representa- tive of the vendor. h 178. May sometimes be necessary to join third parties, in addition. § 179. It must be the representative, appointed where the suit is brought. h 179 a. What defence may be made by such representative. Foreign representative may file copy of wUl, and still plead that legacies are void by the foreign law. CH. IV.] PARTIES TO BILLS. 71 § 180. Proper parties to carry into effect trusts of will. § 181. Same subject further considered. § 181 a. When interest allowed against trustee. § 182. Necessaiy parties, in bills of foreclosure, and bills to redeem. § 183. Same subject continued. 5 184. How far creditors should join in case of trust. § 185. All parties interested in estate should be joined. § 1 86. Where there are successive mortgages, all interests should be represented. § 187. So also all parties whose equities may be affected. ^ 187 a. Bill must contain formal offer to pay sum found due. 4 188. Who are proper parties, defendants, in bill to redeem. § 1 89. How far intermediate assignors are proper parties. § 190. Where an "account is claimed, former holders should be joined. § 191. All interested in taking the account must be joined. § 192. Trustees and cestuis que trust must be joined. § 193. In bills to foreclose mortgage, all interested in the redemption should be made defendants. 5 194. This only extends to such as have a honajide interest. § 195. The mortgagor a necessary party. § 196. K deceased, his heir must -be joined. Eepresentative also, sometimes. § 197. Where mortgagor has parted with all inteftst, need not be joined. § 198, 202. Necessary parties in case of entailment. § 199, 201. All parties interested in mortgage money must be before the court. § 200. Mortgagee deceased, personal representative may foreclose. 4 203. Bill to enforce charge of legacy, other legatees, when to be joined. § 204. Residuary legatees, and appointees under will, when joined. § 205. Bill to enforce charge of estate in hands of the heir. 5 206. Bills against executors to enforce legacies, parties in. § 207. In cases of trust, the trustee and cestuis que trust necessary parties. § 207 a, 212. Exceptions stated, where some are only interested in part of the estate. § 207 6. Parties very numerous, part may represent all. § 208. Beneficiaries not joined, may come in by petition or bill. § 209. Bills by cestuis que trust should join trustees. § 210. All trustees or cestuis que trust should be joined. § 211. How deceased trustees represented. ^ 213. Bills for breach of trust may be brought against one or all. § 214. Particular frame and object of bill, will determine parties. § 214 a How far allegations in bill dispenses with parties. § 215. Cestuis que trust must be joined, if trustees have not the absolute power of dis- § 216. Where parties numerous, may appear by few. § 216 a. Who must join in proceedings under creditors' deeds. § 217. How far parties dispensed with, on account of number. § 218. In matters of account, who necessary parties. ^ 219. All parties interested in the result "should be joined. § 219 a. Who are proper parties in bills for account, in cases of trust. § 220. Absent parties dispensed with, if their utmost rights conceded. 5 221. Sometimes optional, whether to join party or not. ^ 222. Attorney-General, sometimes a necessary party. f 223. The rules thus educed rest upon sound principle. § 224. Lord Redesdale's rule upon the subject. \ 225. Who need not be made parties. 72 EQUITY PLEADINGS. [CH. IV. § 226. The rule will not extend to those collaterally interested. § 226 a. In bills of discovery, only parties at law need be joined. ^ 226 6. In bills for specific performance, only parties to the contract. § 227. Need not be joined unless some privity exists. § 228. The bill may be so drawn as to render some parties needless. § 229. Formal parties generally dispensed with. § 230. Parties holding paramount title need not be joined. § 231. Persons, not specifically interested, need not be joined. § 231 a. In bill to rescind contract, nominal party need not be joined. § 232. Effect of misjoinder of plaintiffs, or defendants. § 233. How far bankrupts necessary parties. § 233 a. Same subject continued. ^ 233 b. How far solicitors, acting fraudulently, may be joined. § 234. Mere witness should not be made a party. § 235. Officers of corporations form an exception. § 235 a. Who proper parties to represent public interest. § 236. How defect of parties taken advantage of. § 236 a. Cannot excuse nonjoinder of parties by multifariousness. § 237. How the defect may be taken advantage of. § 237 a, 237 6. Party will sometimes be admitted on petition. § 238. Objection must enable plaintiff to supply the parties.] § 72. Let us, in the next place, proceed to the consideration of the inquiry, who are the proper and necessary parties to a bill. This is a subject of great practical importance, and of no inconsid- erable difficulty in a great variety of cases.^ It has been re- marked, that courts of equity adopt two leading principles for de- termining the proper parties to a suit. One of them is a princi- ple, admitted in all courts upon questions affecting the suitor's person and liberty, as well as his property, namely, that the rights of no man shall be finally decided in a court of justice, unless he himself is present, or at least unless he has had a full opportunity ' Cooper, Eq. PI. 32, 34. As far as I know, there are but two works which treat fully of the subject of parties. The first and earliest (published in New York, in l832) is " A Practical Treatise on Parties to Bills and other Pleadings in Chancery, with Precedents, by Charles Edwards, Esq." The second is " A Treatise upon the Law respecting Parties in Suits in Equity, by Frederic Cal- vert, Esq.," published in London, in 1837. Each of these works has high merits, and will be found exceedingly useful in practice. But the work of Mr. Calvert contains the fullest and most systematic review of the principles which regulate the subject, as well as the most complete collection of the authorities. I recom- mend them both to the learned reader who is desirous of making a thorough ex- amination of the whole subject ; and in this edition I have freely used such of the materials furnished by each as had escaped my former researches. Mr. Daniell, also, in his recent and excellent work, on the Practice of -Chancery, has devoted a good deal of attention and a large space to the subject. See 1 Daniell, Ch. Pract. ch. 5, p. 284-292. § 72.] PARTIES TO BILLS. 73 to appear and vindicate his rights. The other is, that when a de- cision is made upon any particular subject-matter, the rights of all persons, whose interests are immediately connected with that de- cision, and affected by it, shall be provided for, as far as they rea- sonably may be. In this last respect there is an essential distinc- tion, (as we shall presently see,) between the practice of the courts of common law and that of courts of equity, both in England and America, founded upon the different nature and objects of their particular organization.^ It is the constant aim of courts of equity to do complete justice, by deciding upon and settling the rights of all persons interested in the subject-matter of the suit, so that the performance of the decree of the court may be perfectly safe to those who are compelled to obey it, and also, that future litigation may be prevented.^ Hence, the common expression, that courts of equity delight to do justice, and not by halves.^ And hence, also, it is a general rule in equity, (subject to certain exceptions, which wiU hereafter be noticed,) that all persons materially inter- ested, either legally or beneficially, in the subject-matter of a suit, are to be made parties to it, either as plaintiffs or as defendants, however numerous they may be, so that there may be a complete decree, which shall bind them all.* By this means, the court is enabled to make a complete decree between the parties, to prevent . future litigation by taking away the necessity of a multiplicity of suits, and to make it perfectly certain, that no injustice is done, either to tlie parties before it, or to others, who are interested in the subject-matter, by a decree, which might otherwise be grounded upon a partial view only of the. real merits. When all the parties are before the court, the whole case may be seen ; but it may not, where all the conflicting interests are not brought out upon the ^ Calvert on Parties, ch. 1, § 1, p. 1, 2. ' Mitf. Eq. PI. by Jeremy, 163, 164 ; Id. 39 ; Cooper, Eq. PI. 33 ; Caldwell v. Taggart, 4 Peters, K. 190 ; West v. Randall, 2 Mason, K. 190 - 196 ; Joy v. Wirtz, 1 Wash. Cir. R. 266 ; Holland v. Price, 1 Mylne & Keen, 240 ; Betton v. Wil- liams, 4 Florida, 17. » Knight V. Knight, 3 P. Will. 333 ; Post, § 174. * Mitf. Eq. PI. by Jeremy, 164 ; Cooper, Eq. PI. 33, 34 ; Palk v. Clinton, 12 Ves. 53, 54 ; Hickock v. Scribner, 3 John. Cas. 311, 315, 317-319 ; Joy v. Wirtz, 1 Wash. C. R. 266 ; Caldwell v. Taggart, 4 Peters, R. 190 ; Wendell v. Van Rensselaer, 1 Johns. Ch. R. 849 ; Calvert on Parties, ch. 1, § 1, p. 1, 2 ; Hoxie v. Carr, 1 Sumner, R. 1 72 ; Whiting v. Bank of United States, 1 3 Peters, R. 6 - 14 ; Hopkirk V. Page, 2 Brock. R. 20 ; Carey v. Hoxey, 11 Geo. 648. EQ. PL. ^ 74 EQUITY PLEADINGS. [CH. IV. pleadings by the original parties thereto.^ "We shall hereafter have occasion to consider at large, who in the true sense of the rvile are proper parties to the suit ; for it has been well observed, that it is not all persons who have an interest in the subject-mat- ter of the suit, but, in general, those only jvho have an inter- est in the object of the suit, who are ordinarily required to be made parties.^ § 73. Lord Chief Baron Gilbert,^ after stating the rule, has illustrated its propriety and ■ policy in the following manner : " Where a man seeks for an account of the profits or sale of a real estate, and it appears, upon the pleadings, that the defendant is only a tenant for life, and consequently the tenant in tail cannot be bound by the decree ; and, where one legatee brings a bill against an executor, and there are many other legatees, (none of which will be bound, either by the decree, or by the account to be taken of the testator's assets,) and each of these legatees may draw the account in question over again at their leisure; or, where several persons are entitled, as next of kin, under the statute of distributions, and only one of them is brought on to a hearing ; or, where a man is entitled to the surplus of an estate, under a will, after payment of debts, and is not brought on ; or, where the real estate is to be sold under a will, and the heir at law is not brought on ; in these, and all other cases, where the de-, cree cannot be made uniform, for, as on the one hand the court will do the plaintiff right, so on the other hand they will take care that the defendant is not doubly vexed, he shall not be left under precarious circumstances, because of the plaintiff, who might have made all proper parties at first, and whose fault it was that it was not so done." § 74. Another illustration of the rule may be found in the case where the ancestor has entered into a covenant to do certain acts, and bound himself and his heirs to the performance thereof. If he should die, and a bill in equity should be brought against the heir alone, to compel a performance of the covenant, the court would require the executor or administrator of the ancestor to be made a party ; because if the latter had assets, the heir would be entitled, upon another bill against him, to reimburse himself out ^ West V. Randall, 2 Mason, R. 190, 191. ^ See Calvert on Parties, 5, 6, 10, 11 ; Post, § 136-152. ' Gilb. For. Rom. 157, 158. § 72 - 74 a.] PAETiES to bills. 75 of the personal assets. But, by uniting both in the same bill, the court would be enabled at once to do complete justice between all the parties, by decreeing the executor or administrator to perform the covenant, so far as the personal assets will extend, and the rest to be made good out of the real assets, descended to the heir.^ But, at law, the heir alone might be sued.^ § 74 a. Another illustration may be derived from the case of a mortgage in fee to secure a debt by bond. There, if the mortgagee dies, the heir is the sole party entitled at law to sue the mortgagor for possession of the land ; and the executor or administrator the sole party entitled at law to sue for the debt upon the attendant bond. And the heir and executor or administrator cannot at law unite in one suit their respective claims, although arising out of the same transaction. But in a court of equity, both may be united, if the object is to compel a payment of the debt or a fore- closure of the mortgage. Nay, although the executor or adminis- trator is deemed in equity the sole party entitled to the debt, and therefore entitled also to sue upon the mortgage for a foreclosure ; yet he. may not sue alone ; but he will be compelled to join the heir, either as a co-plaintiff, or as a co-defendant, because the mortgagor is entitled, upon payment of the debt, to have a recon- veyance of the estate, and this can be made only by the heir, in whom the estate is then vested. In short, the heir is treated as a trustee of the executor or administrator, until the debt is paid, and when it is paid, he is treated as a trustee of the mortgagor ; and, therefore, to avoid circuity of action and multiplicity of suits, equity requires both to be joined in the same suit, in order that complete justice may be done uno flatu.^ But we are not to un- derstand from this, that the nonjoinder or misjoinder of proper par- ties can be made an objection in all stages of the cause with equal effect. The mere nonjoinder of a party, who might be a proper party, but whose absence produces no prejudice to the rights of the parties before the court, will constitute no fatal objection at the hearing or rehearing, or upon bill of review.* The same rule would in general apply to the misjoinder of a party, either as ^ Knight V. Knight, 3 P. Will. 331, 333 ; Calvert on Parties, 1-3. » Ibid. ' See Scott v. Mcoll, 3 Euss. K. 476; Calvert on Parties, 2, 3; Id. 166; Id. 187; Post, §200, 201. * Whiting V. Bank of United States, 13 Peters, 6, 14. 76 EQUITY PLEADINGS. [CH. IV. plaintiff or as defendant ; for at the hearing, if a decree can be made without prejudice to the rights of the parties before the court, the objection will not avail.^ § 75. If the proper parties are not made, the defendant may either demur to the bill, or take the objection by way of plea cr answer ; or, (subject to the considerations above suggested,) when the cause comes on to a hearing, he may object, that the proper parties are wanting ; or, the court itself may state the objection, and refuse to proceed to make a decree ; or, if a decree is made, it may, for this very defect, be reversed on a rehearing, or on an appeal ; or if it be not reversed, yet. it will bind none but the par- ties to the suit, and those claiming under them.^ So, that all the evils of fruitless or inadequate litigation may sometimes be visited upon the successful party in the original suit, by leaving his title still open to future question and controversy. § 76. This doctrine, as to parties, constitutes one of the most striking differences between the proceedings in courts of law, and the proceedings in courts of equity. In general, courts of law re- quire no more than that the persons directly and immediately inter- ested in the subject-matter of the suit, and whose interests are of a strictly legal nature, should be parties to it.^ All other persons, who have merely an equitable, or remote interest, are not only not required to be parties, but are excluded from being made parties ; and, if any are improperly joined, the fault may be fatal to the suit.* Thus, for example, at law, the executor and the heir can- not join, or be joined, in an action, although each may have an interest in the controversy. But in equity, they may both join, and be joined, and, indeed, both are often necessary and proper parties.^ § 76 a. The general rule, in courts of equity, as to parties, is, > Post, § 236, 541, 544. ' Cooper, Eq. PI. 33; Gilb. For. Eom. 54, 55, 157, 158; Wyatt, Pr. Keg. 299; Cockbum V. Thompson, 16 Ves. 325, 326; Mitf. Eq. PI. by Jeremy, 180; Dar- went V. Walton, 2 Atk. 510; Hickock v. Scribner, 3 John. Cas. 311, 316, 317; Calvert on Parties, ch. 2, § 4, p. 113-116; 1 DanieU, Ch. Prac. ch. 5, § 3, p. 334-338. ' Com. Dig. Abatement, E. 8 to E. 14; Id. F. 4 to F. 10; Eice v. Shute, 5 Burr. 2611 ; Chitty on Plead. 1-10, 3d edit. * Com. Dig. Abatement, E. 15 ; Chitty on Plead. 7, 8, 13, 14, 3d edit. « 3 Plunkett v. Parson, 2 Atk. 51 ; Knight v. Knight, 3 P. Will. 333, and Mr. Cox's note (A) ; Calvert on Parties, 1, 2 ; Ante, § 74, 74 o. § 74 a - 76 6.] parties to bills. 77 (as has been already stated,^) that all persons materially interest- ed in the subject-matter, ought to be made parties to the suit, either as plaintiffs, or as defendants, however numerous they may be, in order, not only that complete justice may be done, and that multiplicity of suits may be prevented ; ^ or, as the rule was once stated by Lord Hardwicke, that all persons ought to be made par- ties before the court, who are necessary to make the determination complete, and to quiet the question.^ It has been objected, that this, although the common language made use of in the authorities, is not entirely accurate, or free from vagueness;* for there are cases, in which persons are materially interested in the suit, in which, nevertheless, they are not always required to be parties ; as, for example, a remainder-man, after an estate tail.^ On the other hand (it may be added) there are cases, where persons are required to be made, or at least may be made, parties, who do not seem to have any material interest in the suit ; as, for example, a naked trustee, a husband, who claims no interest in a suit respect- ing his wife's separate estate,- a mortgagor, in a suit brought by a second mortgagee to redeem the first mortgagee, and yet not seek- ing a foreclosure or other decree against the mortgagor ; and an obligee of a bond,*who has made an absolute assignment thereof, and claims no interest therein, in a suit brought by the assignee against the obligor.® § 76 b. It has also been suggested, that it would be a more just exposition of the general rule, to declare that all persons interest- ed in the object of the suit ought to be made parties.'^ Undoubt- edly this does furnish a safe and satisfactory, guide in many cases ' of ordinary practice ; but it may admit of doubt whether it is uni- versally true, or whether it is not equally as open to criticism as is the common formulary, in which the rule is expressed. In a 1 Ante, § 72. ° Mitf. Eq. PI. by Jeremy, 4th edit., p. 164 ; Calvert on Parties, ch. 1, § 1, p. 3 ; Palk«. Clinton, 12 Ves. 58; Cockburn v. Thompson, 16 Ves. 325; Hawkins v. Hawking, 1 Hare, R 543, 546 ; Weatherby v. St. Georgio, 2 Hare, R. 624, 626 ; Harrison v. Stewardson, 2 Hare,.K. 530; Post, § 149, 150, 206-208, 215-217; Hussey v. Dole, 24 Maine, 20. ' Poor V. Clarke, 2 Atk. E. 515. * Calvert on Parties, ch. 1, § 1, p. 3-11. * Post, § 142, 144, 146. * Post, § 63, 153, 186, 229, 231. ' Calvert on Parties, ch. 1, § 1, 11. 7* 78 EQUITY PLEADINGS. [CH. IV. just sense, a remainder-man, after a tenancy in tail, has an in,terest in the object of a suit brought by a tenant in tail, afifecting the entire fee ; and yet he is not required to be made a party .^ So, residuary legatees are interested in the object of a suit by a credi- tor against the executor, to establish his debt or claim against the estate ; for the establishment of such debt or claim goes pro tanto in direct diminution of their intei-est in the residue. Yet they are never required to be made parties.^ So trustees for the pay- ment of debts and legacies may sustain a suit, either as plaintiffs or as defendants, touching the trust estate, without bringing the creditors or legatees before the court as parties.^ On the other hand, persons, who seem to have no interest, either in the subject, or in the object of a suit, are sometimes i-equired, as has been al- ready suggested, to be made parties, or at least may be made par- ties. Thus, if the heir is sued upon a bond of his ancestor, by the obligee, it is said, that the executor or administrator of the ances- tor ought to be made a party, because the personal assets are pri- marily liable for the debt, although the object of the bill is purely to obtain payment from the heir.* Yet this principle is not apphed throughout ; for, as we shall presently see, a mortgagee may pro- ceed against the heir of a mortgagor for a foreclosure, without making the executor or administrator a party, although the per- sonal assets are, in such a case, primarily liable for the debt.^ § 76 c. The truth is, that the general rule in relation to parties, does not seem to be founded on any positive and uniform prind- ple ; and therefore it does not admit of being expounded by the application of any universal theorem, as a test. It is a rule found- ed partly in artificial reasoning, partly in considerations of conven- 1 Calvert on Parties, ch. 1, § 1, p. 4 ; Id. oh. 3, § 7, p. 189 - 197 ; Post, § 141, 144-146. 2 Calvert on Parties, ch. 1, § 1, p. 5 ; Post, § 148, 150. » Post, § 150. * Post, § 173; Calvert on Parties, ch. 1, § 1, p. 2, 3. In Munch v. Cockerill, 8 Sinions, R. 219, the suit was brought by A for one moiety of a trust fund, the other belonging to B, and the allegation of the bill was that the whole fund was improperly dealt with. The vice-chancellor held, that as it did not appear that B had been satisfied as to his share, he ought to be made a party to the suit, that the whole matter might be settled in one suit. Here, we see, that though the object of the bill as to one moiety might be obtained, the court acted upon the ground that other considerations might require other parties. Ante, § 159; Post, § 213, 214. 5 Post, § 175, 193, and notes; Post, § 186, 196. § 76 b, 76 c] PARTIES TO BILLS. 79 ience, partly iu the solicitude of courts of equity to suppress mul- tifarious litigation, and partly in the dictate of natural justice, that the rights of persons ought not to be affected in any suit, without giving them an opportunity to defend them.^ Whether, therefore, the common formulary be adopted, that all persons materially in- terested in the suit, or in the subject of the suit, ouglit to be made parties, or that all persons materially interested in the object of the suit, ought to be made parties, we express but a general truth in the application of the doctrine, which is useful and valuable, indeed as a practical guide, but is still open to exceptions, and qualifications, and limitations, the nature and extent and applica- tion of which are not, and cannot, independently of judicial decis- ion, be always clearly defined.^ On this account it is of great im- ' Post, 135, 135 a; Ante, § 76 a. Post, 94-96, 132. ^ Mr. Calvert, in his learned work on Parties, (p. 1-11,) has examined this subject with great care and ability. The following extracts, although long, will amply reward the attention of every professional reader : " The combination of the two principles which have been mentioned, has given rise to the general rule upon the proper parties to a suit in equity. This rule has been laid down by different writers and judges in very different expres- sions. Lord Eedesdale says, in the continuation of the passage, just quoted, ' For this purpose, all persons materially interested in the subject, ought gener- ally to be parties to the suit, plaintiffs or defendants, however numerous they may be, so that the court may be enabled to do complete justice by deciding upon and settling the rights of all persons interested, and that the orders of the court may be safely executed by those who are compelled to obey them, and future litigation may be prevented.' Lord Hardwioke (Poore v. Clarke, 2 Atk. 515, 1742,) says: 'The general rule is, that if you draw the jurisdiction out of a court of law, you must have all persons parties before this court who will be necessary to make the determination complete, and to quiet the question.' Lord Thurlow says, (Anon. 1 Ves. jr. 29, 1 789,) ' All parties having an apparent right, must be brought into court before the court wUl do anything which may affect their right.' Sir William Grant says : ' As far as it is possible, the court endeavors to make a complete decree, that shall embrace the whole subject, and determine upon the rights of all parties interested in the estate.' (Palk v. Clinton, 12 Ves. 58, 1806.) Lord Eldon says, (Cockburn v. Thompson, 16 Ves. 325, 1809,) ' The strict rule is, that all persons materially interested in the subject of the suit, however numerous, ought to be parties ; that there may be a complete decree between aU parties having material interests.' Sir William Grant again says, (Wilkins v. Fry, 1 Mer. 262, 1816,) 'In equity it is sufficient that all parties interested in the subject of the suit should be before the court, either in the shape of plaintiffs or of defendants.' " The object of quoting so many authorities for the general rule, is not merely to show how universally it has been acknowledged, but still more to call atten- tion to the vague language in which it has been expressed by very logical 80 EQUITY PLEADINGS. ^ [CH. IV. portance to ascertain, what are the admitted exceptions to the general rule, and to ascertain what are the grounds on which they reasonerg. Lord Kedesdale has qualified the rule, which he laid down, in these words, (Red. PI. 1 70) : ' In many cases the expression that all persons interested in ihe subject must be parties to a suit, is not to be understood as extending to all persons who may be consequentially interested.' Yet if Lord Kedesdale's rule, even in company with this qualification, were to be adopted as a guide for practice, it would frequently lead to inferences which are at variance with de- cisions acknowledged to be correct. For instance, a remainder-man in fee after an estate tail, is (Cockburn v. Thompson, sup.) not to be made a party to a suit in which the title to the estate is determined, though one who claims an interest only for life, antecedent to the estate tail, must be made a party. A person who possesses either of these two characters is ' a person interested,' and ' materially interested'; nor is there any meaning in the term 'consequentially,' which applies to the former, and not to the latter. If a creditor (Lawson v. Barker, 1 Bro. C. C. 302, 1783,) sues for payment of his debt, it it clear that the residuary legatees are interested in resisting the claim ; for if the resistance to the debt is successful, their shares of the residue will be increased. Yet it is not necessary to join them as parties with the executors. A residuary legatee, or in case no residuary legatee is appointed, a next of kin, appears to have precisely the same degree of interest in opposing a suit to establish a legacy as an heir at law has in opposing a suit to establish a devise ; the interest of the one is in no respect more ' consequential ' than the interest of the other ; yet the heir at law is a necessary party in one suit ; and the next of kin, or residuary legatee, is not a necessary party in the other. Such being the indefinite character of the rule according to the terms in which it has been laid down by high authority, it might be at first inferred that the nature of the subject would not admit of any more precise expression ; and the same inference might follow from a merely cursory observation of the decided cases. It must, however, be observed, that the object at which judges have aimed in giving their judgments, has been, to lay down the rule with sufiicient accuracy for the case immediately before them, and that they have not attempted to pronounce a general rule applicable in all cases. They might have had in then- minds a precise idea of the general prin- ciple, although they did not express it precisely. An attempt will now be made to ascertain the precise nature of that principle, and to express the rule in such language as may be sufficiently definite to serve as a guide upon all occasions. Lords Eldon and Thurlow, and Sir William Grant, mention as necessary parties all persons interested in the subject of suit. The expression, ' subject of suit,' may mean one of two things; either the fund or estate, respecting which the question at issue has arisen, or else that question itself. For instance, in a fore- closure suit, it may mean, either in the first sense, the mortgage debt, or mort- gaged premises, or else, in the second sense, the question whether a foreclosure ought or ought not to take place. In the passage which has been quoted fi:om the case of Palk v. Clinton, it is clear that Sir W. Grant used it in the first sense. Lord Eldon, in the case of Cockburn v. Thompson, (16 Ves. 326, 1808,) appears to have used the words in the same sense ; for in further explanation of the gen- eral rule, he. says, ' Accordingly, there are several well-known cases of exception ; § 76 c] PARTIES TO BILLS. 81 are founded ; for when these exceptions, and the grounds thereof, are fully seen and explained, they will furnish strong lights to guide and, without going through with them all, I will mention one instance of not applying it to persons having valuable interests in real estate ; namely, where it has been held sufficient to bring before the court the first person having an estate of inheritance ; though it cannot be denied, that persons having present immediate valuable interests in the same real estate, may become most deeply afiected by what is done here in their absence.' The sense in which Lord Thurlow used the term, cannot be ascertained from Mr. Vesey's very brief (Anon. 1 Ves. jr. 29, 1789) report of the anonymous case, which has been quoted. If the words, ' sub- ject of suit,' were taken in that very extensive meaning in which Lord Eldon and Sir W. Grant used it, the general rule, as laid down by them, would be incon- sistent with several distinctions which are firmly established. For instance, if there is a contract to sell an estate, which the vendor claims under a will, the purchaser filing his bill for specific performance of the contract, need not make the heir a party, if he does not pray proof of the will ; but if he does, he must make him a party. Yet the interest of the heir in the estate, that is, according to Lord Eldon's and Sir W. Grant's use of the term, in the subject of the suit, cannot be at all varied by the insertion of such a prayer. The executor of a mortgagor has neither greater nor less interest in the estate mortgaged, whether the prayer of the mortgagee's bill is for a sale or for a foreclosure ; yet if it is only for a foreclosure, he is not necessarily a party ; but he is, if the prayer is for a sale. When a lessee of tithes institutes a suit respecting them, the lessor is not a requisite party, unless the prayer is in part for the establishment of the right to tithes ; although he is of course equally interested in the tithes themselves, whether such a prayer is or is not introduced into the bill. Many cases may be mentioned, which show, that according to general practice, a mere interest in the subject of suit, as the term was used by Lord Eldon and Sir W. Grant in the passages quoted above, is not sufficient to render a person a necessary party. The cases of Saville V. Tancred, and Franco v. Franco, are inserted here as examples of such cases. Saville, (Saville v. Tancred, 1 Ves. 101, 1 748,) pawnee of a strong box, contain- ing jewels which belonged to the duke of Devonshire, filed a bill against Tan- cred, in whose custody it was, to compel him to deliver it up, and to give an aecount. An objection was made, that the duke's representative should have been made a party ; but Lord Hardwicke ' overruled the objection ; for pawnee of a pledge, as Saville was, may bring trover or detinue at law for it, without troubling himself with the pawner ; for he has a special property. But suppose he was not pawnee, but had only the possession of them, and delivered them to another; that person has nothing to do with the duke. Therefore let these jewels come into his hands which way they will, he may give the custody of them to any one, and have them back without hurting the duke or his representative.' In Franco v. Franco, (3 Ves. jr. 75, 1796,) the plaintiff, a trustee, had, at the request of his co-trustee, the defendant, transferred the trust fund into his name. The bill prayed, amongst other things, that the defendant might be decreed to replace the fund, and it was contended, on demurrer, that the cestuis que trust ought to have been parties ; but Lord Loughborough said, ' This is no bill for execution of a trust. Whatever demand the cesluis que trust would' have, they 82 EQUITY PLEADINGS. [CH. IV. US in our endeavors to apply the rule and the exceptions to new cases, as they arise in judgment. And here it may be proper to could never found themselves upon the case the present plaintiff makes against the defendant,' and overruled the demurrer. It need hardly be remarked, that in Saville v. Tancred, the duke of Devonshire was interested in the jewels, and that in Franco v. Franco, the cestuis que trust were interested in the stock. In cases concerning trust property, it is particularly necessary to pay attention to the correct rule ; for the cestuis que trust are always the persons interested in the subject of the suit, and yet they are very frequently not to be introduced among the parties. Where, for instance, there are trustees to sell an estate, receive the purchase-money, and pay it to particular individuals. If the mere object of the suit is to get into the hands of the trustee the property which is to be enjoyed by the cestuis que trust, the latter need not be made parties ; and the reason seems to be, that their equitable rights remain in precisely the same situation, whether the trustees are successful or unsuccessful in their suit. Yet it is quite clear, that they would be necessary parties, if all were so considered who are in- terested in the subject of the suit, according to the meaning of the term ' subject,' which has been referred to. The rule, then, which has been stated in these cases with reference to the subject of the suit, meaning thereby the estate or fund, on which the question at issue has arisen, does not appear to be adapted to general application. It must be taken in connection with other authorities, which will now be quoted. In King v. Martin, (2 Ves. jr. 643, 1795,) Lord Loughborough says, ' There is no pretence for the demurrer. This is a bill stating a case for relief, a case of confederacy between the defendants ; and the material party, and against whom a decree might be made, not perhaps for the specific relief prayed by this bill, is the bankrupt, who has demurred. The case of making a witness to a will a defendant, to know what he will say when he comes to support the will, is perfectly different ; but if it was a case in which the will was impeached, as obtained by fraudulent practices, the witnesses are proper parties.' Lord Eldon says, in Fenton v. Hughes, (7 Ves. 288, 1802,) 'It is admitted, that it is impossible to file a bill against a person, who is a mere witness, if the object of the bill is to have relief in equity. That is established by a great variety of authorities.' The general effect of this decision is said by Sir T. Plumer, in Whitworth v. Davis, (1 Ves. & B. 550, 1813,) to be, 'that a person, who has no interest and is a mere witness, against whom there can be no relief, ought not to be made a party.' Sir John Leach says, in Smith v. Snow, (3 Madd. 10, 1818,) ' Persons not interested in the suit cannot be made parties, and it is sufficient to say, that it is not alleged that these defendants have any interest in the suit.' And again, in Lloyd v. Lander, (5 Madd. 289, 1821,) speaking of a bankrupt, he says, ' Having thus neither interest nor power in the subject of the suit, which requires to be bound by the decree of the court, it is difficult to conceive any principle upon which he can be considered as a necessary party.' The dicta which have been last quoted, coincide with the opinion of Lord Hardwicke, in Poore v. Clarke, (2 Atk. 515, 1742,) when he made the criterion to be, ' what persons are necessary to make the determination complete, and to quiet the question.' So Lord Lyndhurst says, in his judgment upon the case of Small v. Atwood, (Younge, 458, 1832,) ' The general rule is, § 76 C.J PARTIES TO BILLS. 83 state the remark of a learned chancellor, speaking upon this very subject of parties, as containing a salutary admonition and instruc- that all persons who are interested in the question, must be parties to a suit instituted in a court of equity.' A similar principle is expressed in Comyns's Dig. tit. Chancery, E. 2. Mr. Starkie says, that the interest which disqualifies a ■witness, is an interest in the result of the cause, (vol. 1, p. 102,) namely, that ' aU concerned in the demand ought to be made partners in equity.' Not all concerned in the subject-matter respecting which a thing is demanded ; but aU concerned in the very thing which is demanded, the matter petitioned for in the prayer of the bUl, in other words, the object of suit. The same remark applies to all the authorities, which have been just quoted. They make the propriety of a person being made a party depend upon his interest, not in the subject- matter, but in the object of the suit. If this distinction between the meaning of ' the subject of a suit,' and that of ' the object of a suit,' is borne in mind, it may appear superfluous to show by other authorites, that the word 'interest,' when used as a criterion of the proper parties to a suit, means interest in its object, and not interest in its subject-matter. Still, as the word seems to have been loosely employed in the opinions, which were quoted in the first instance, and as the correct interpretation of it may be the key to many of the difficulties, which arise respecting parties, no apology will be required for mentioning the interpretation of the word, which has appeared in a work recently published by Mr. Wigram. In the following passages, he is ascertaining, what are the docu- ments, which a plaintiiF may compel a defendant to produce. ' The plaintiff,' (Points on the Law of Discovery, by James Wigram, K. C, p. 199,) 'must show, that he has an interest in the documents, the production of which he seeks. There can be no objection to this mode of expressing the rule, provided the sense, in which the word interest is used, be accurately defined. But with- out such definition, it is obvious, that this mode of expressing the rule is un- profitable for instruction. The word interest must here be understood with reference to the subject-matter to which it is applied.' ' The word interest must, therefore, in these cases be understood to mean, an interest in the production of a document for that specific purpose.' ' Unless the meaning of the word interest be limited in the way pointed out, it is obvious, that the effect of a simple claim '(perhaps without a shadow of interest) would be to open every muniment room in the kingdom, and every merchant's accounts, and every man's private papers, to the inspection of the merely curious.' In perfect keeping with these remarks is Mr. Wicrram's explanation of the word material, when it is said, that the plaintiff has a right to the discovery of all matters which are material to his case. 'The word material,' (Points on the Law of Discovery, p. 65,) 'is rela- tive, — material with reference to the purpose for which discovery is given, that is material with reference to the plaintiff's case. Now the plaintiff's case — in the sense in which the words are here used — is that case upon which the parties are about to go to trial.' Mr. Wigram afterwards quotes a passage from Lord Kedesdale, in which, stating the general right of a plaintiff to a discovery of the matters alleged in the bill, he says: 'Provided they are necessary to ascertain certain facts material to the merits of his case, and to enable him to obtain a decree.' These passages are the more important in confirming the rule 84 EQUITY PLEADINGS. [CH. IV. tive lesson, that it is the duty of every court of equity to adapt its practice and course of proceeding, as far as possible, to the exist- ing state of society, and to apply its jurisdiction to all new cases, which, from the progress daily making in the affairs of men, must continually arise ; and not, from too strict an adherence to forms and rules established under very different circumstances, to de- cline to administer justice, and to enforce rights, for which there is no other remedy.^ § 77. Let us, therefore, before entering upon the more particu> lar considerations applicable to this subject, examine' into and consider the general nature of the exceptions, which have been admitted to the general rule in equity, that all persons legally or beneficially interested in the subject-matter of a suit should be made parties ; or, if the expression be deemed more exact and satisfactory, that all persons, who are interested in the object of the bill, are necessary and proper parties. All these exceptions will be found to be governed by one and the same principle, which is, that, as the object of the general rule is to accomplish the pur- poses of justice between all the parties in interest, and- it is a rule founded, in some sort, upon public convenience and policy, rather than upon positive principles of municipal or general jurispru- dence, courts of eqxiity will not suffer it to be so applied as to defeat the very purposes of justice, if they can dispose of the upon parties, which will be proposed, as there is a strict analogy between the purpose for which parties are made, and that for which discovery is given. ' The purpose,' says Mr. Wigram, (Points on the Law of Discovery, p. 200,) ' for which discovery is given, is, simply and exclusively, to aid the plaintiff on the trial of an issue between himself and the defendant.' So the purpose, for which parties are made, is to enable the plaintiff to bring that issue to trial. Therefore, the rule upon discoveries to be made, and upon parties to be brought into court, ought to be founded on the same principle. Upon the combination of all these authorities, it is proposed to state the general rule in the following words : ' All persons having an interest in the object of the suit, ought to be made parties.'" Calvert on Parties, ch. 1, § 1, p. 3-11. The subject is also learnedly discussed in a very able article in the London Law Magazine for May, 1839, p. 238-242. See also Calvert on Parties, ch. 1, § 2, p. 19; Post, §149,150,207,208,215-217. > Lord Cottenham, in Mare v. Malachy, 1 Mylne & Craig, R. 559 ; and Taylor V. Salmon, 4 Mylne & Craig, R. 141. Post, § 94, 113, note, 132, 135 a; Cock- burn V. Thompson, 16 Ves. 323; Elmendorf v. Taylor, 10 Wheat. R. 167; "West V. Randall, 2 Mason, R. 181 ; Colt v. Lesnier, 9 Cowen, R. 320, 330; Richardson y. Hastings, 7 Beavan, R. 323. § 76 C - 78.] PARTIES TO BILLS. 85 merits of the case before them without prejudice to the rights or interests of other persons, who are not parties, or if the circum- stances of the case render the application of the rule wholly im- practicable.^ On the other hand, if complete justice between the parties before the court cannot be done without others being made parties, whose rights or interests will be prejudiced by a decree, then the court wiU altogether stay its proceedings, even though those other parties cannot be brought before the court ; for in such cases the court will not, by its endeavors to do justice between the parties before it, risk the doing of positive injustice to other par- ties not before it, whose claims are or may be equally meritorious.^ We shall presently have occasion to notice some illustrations of the principle of the exceptions, and of the qualifications of it, to which we have alluded.^ § 78. The first exception to the rule, which we shall notice, is founded upon the utter impracticability of making the new proper or necessary parties. This occurs, of course, when such new par- ties are without the jurisdiction of the court, and when, conse- quently, they cannot be reached by the process of the court. In such a case, to require such persons to be made parties, would be equivalent to a dismissal of the suit, and amount to a denial of justice. Hence, it is a common rule of the court, that when a person, who ought to be a party, is out of the jurisdiction of the court, if the fact is stated in the bill, and admitted by the answer, or proved (if denied) at the hearing, that of itself constitutes a sufi&cient ground for dispensing with his being made a party, and the court will proceed to a decree without him.* Thus, for ex- ^ Cockburn v. Thompson, 16 Ves. 321, 326 ; Adair v. New River Company, 11 Ves. 429 ; Wendell v. Van Rensselaer, 1 John. Ch. R. 349, 350 ; Wiser v. Blachly, 1 John. Ch. R. 437 ; Brasher v. Van Cortlandt, 2 John. Ch. R. 245, 247 ; West v. Randall, 2 Mason, R. 190-196 ; Hallett w. Hallett, 2 Paige, R. 15 ; Joy v. Wirtz, 1 Wash. C. R. 517; Hallett v. Hallett, 2 Paige, R. 18, 19 ; Elmendorf i;. Taylor, 10 Wheat. R. 152; Post, § 94-96, 130. 2 Hallett V. HaUett, 2 Paige, R. 15 ; West y. Randall, 2 Mason, 190-196 ; Fell V. Brown, 2 Bro. Ch. R. 276 ; Joy v. Wirtz, 1 Wash. C. R. 517; Marshall u. Bev- erly, 5 Wheat. 313; Ward v. Arredondo, 1 Paine, Cir. R. 410 ; S. C. 1 Hppk. R. 213; Post, § 130-134. ' Post, § 130-134. * Mitf. Eq. PL by Jeremy, 164; Cooper, Eq. PI. 39, 186, 187; Smith v. Hi- bernian Mine Company, 1 Sch. & Lefr. 240 ; Quintine v. Yard, 1 Eq. Abridg. 74. In Cockburn v. Thompson, 16 Ves. 326, Lord Eldon, speaking on the sub- ject of dispensing with parties and of the exceptions to the general rule, said : EQ. PI/. 8 86 EQUITY PLEADINGS. [CH. IV. ample, the general rule is, that to a bill against a partnership, all the partners must be made parties. But if one of the partners be resident in a foreign country, so that he cannot be brought before the court, and the fact is so charged in the bill, the court will or- dinarily proceed to make a decree against the partners, who are within the jurisdiction ; with this qualification, however, that it can be done without manifest injustice to the absent partner.^ [Thus, when a bill in equity by one of four partners against only one of the other three for an account, &c., alleges that the other two are not within the jurisdiction of the court ; that all the oth- ers have received their full share of the partnership efifects ; and that the defendant has received much more than his share, and the plaintiff much less ; a demurrer to the bill for non-joinder of the other partners will not be sustained.^ But the excuse for a non-joinder of partners, that they are out of the jurisdiction, ought not to prevail where important rights of the absent partners are involved, and where the facts are mainly within their knowledge, or where the circumstances occurred in the place where such- ab- sent partners are.^] § 79. This ground of exception is peculiarly applicable to suits in equity in the courts of the United States, which suits can in general be maintained only by and against citizens of different states. If, therefore, the rule as to parties were of universal op- eration, many suits in those courts'would be incapable of being sustained therein, because all the proper or necessary parties might not be citizens of different states ; so that the jurisdiction " The same principle, in a great variety of cases, has obliged the court to dis- pense with the general rule as to persons out of the jurisdiction. And there are many instances of justice administered in this court in the absence of those, with- out whose presence, as parties, if they were within the jurisdiction, it would not be administered, as it obviously cannot be so completely as if all persons interested were parties. But the court does what it can." See also Adair v. New Eiver Company, 11 Ves. 443, 444 ; Taylor v. Salmon, 4 Mylne & Craig, K. 134 ; Wall- worth V. Holt, 4 Mylne & Craig, 619, 634 - 640. Where the party is out of the jurisdiction, that fact should be positively averred in the bill, and not left to mere inference ; as, for example, by averring that the party absconded a year before the bill was filed. Penfold v. Nunn, 5 Sim. 498. ' Cooper, Eq. PI. 35 ; Mitf. Eq. PI. by Jeremy, 31, 164 ; Couslad v. Cely, Prec. Ch. 83 ; Darwent v. Walton, 2 Atk. 510 ; Walley v. Walley, 1 Vern. 487 ; Milli- gau V. MUledge, 3 Cranoh, 220. ' Towle V. Pierce, 12 Mete. 329. ' Vose V. Philbrick, 3 Story, 335. §78-80.] ♦ PARTIES TO BILLS. 87 of the court would be ousted by any attempt to join them.^ On this account it is a general rule in the courts of the United States to dispense, if consistently with the merits of a case it can possibly be done, with all parties, over whom the court would not possess jurisdiction.^ § 80. It is usual (as has been already stated) to add in the bill the name of the person out. of the jurisdiction of the court, so far as may be necessary to connect his case with that of the other par- ties. But in such a case, the bill should not only allege, that the person is out of the jurisdiction, but it should go on to pray pro- cess against him, so that he may be made amenable to the process of the court, if he should come within the jurisdiction.^ One rea- son for this is, that the absent person may have an opportunity of appearing to the suit, and taking such a course in it, as he may deem to be for his advantage.* And if, in fact, he should become ^ West V. Kandall, 2 Mason, E. 196; Russell v. Clarke, 7 Cranch, 69, 98; Milligan v. Milledge, 3 Cranch, 220 ; Simms v. Guthrie, 9 Cranch, 19, 25 ; El- mendorf «j. Taylor, 10 Wheat. R. 152; Mallow v. Hinde, 12 Wheat. K. 193; Harding v. Handy, 11 Wheat. K. 103; Ward v. Arredondo, 1 Paine, C. R. 413, 414. ' Ibid. ; Ante, § 78. By the Act of Congress of February 28, 1839, ch. 36, sect. 1, an important alteration has been effected. That Act provides : "That where, in any suit at law or in equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of or found within the district where the suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdic- tion, and proceed to the trial and adjudication of such suit between the parties, who may be properly before it ; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer ; and the nonjoinder of parties, who are not so inhabitants, or found within the district, shall constitute no matter of abatement, or other objection to said suit." Post, § 135, and note, § 221, § 229, § 542. ' Munoz V. De Tastet, 1 Beavan, R. 109, and note ; Brookes v. Burt, 1 Beavan, R. 109. But see Haddock v. Tomlinson, 2 Sim. & Stu. 219. The 22d Rule of the Rules of the Supreme Court of the United States, January Term, 1842, as- sumes the propriety of this doctrine. * Munoz V. De Tastet, 1 Beavan, R. 109, note; Id. Ill, the reporter's note. But in Haddock v. Tomlinson, 2 Sim. & Stu. 219, it seems to have been thought by the court that it was not absolutely necessary to pray process against a per- son out of the jurisdiction of the court, although it might be done. The objec- tion, however, if well founded, should be taken by demurrer ; and if an absent person should afterwards come within the jurisdiction, he might be made a party by the plaintiff, by a supplemental bill. Post, § 335 ; Mitf. Eq. PI. by Jeremy, 164, 165; Id. 180, 181, 88 EQUITY PLEADINGS. [CH. IV. SO amenable, pending the suit, he ought to be brought before the court either by process issuing against him, if process shall have been prayed against him ; and if not, by amending the bill for that purpose, if the state of the proceedings will admit of such an amendment ; or by a supplemental bill, if the state of the proceed- ings will not so admit.^ § 81. It is an important qualification ingrafted on this particu- lar exception, (which has been already incidentally alluded to,) that persons who are out of the jurisdiction, and are ordinarily proper and necessary parties, can be dispensed with, only when their interests will not be prejudiced by the decree, and when they are not indispensable to the just ascertainment of the merits of the case before the court.^ The doctrine ordinarily laid down on this point is, that where the persons who are out of the jurisdic- tion, are merely passive objects of the judgment of the court, or , their rights are merely incidental to those of the parties before the court, then, inasmuch as a complete decree may be obtained with- out them, they may be dispensed with.^ But if such absent persons are to be active in the performance or execution of the decree ; * ' Mitf. Eq. PI. by Jeremy, 164, 165 ; 1 Smith, Ch. Pr. 45 ; Haddock v. Tom- linson, 2 Sim. & Stu. 219. ' Ante, § 77; West v. Randall, 2 Mason, 190-198; Mallow v. Hinde, 12 Wheat. R. 193 ; Russell v. Clarke's Ex'rs, 7 Cranch, 72. ' Mitf. Eq. PI. by Jeremy, 31, 32 ; Id. 164, 165 ; Meux v. Maltby, 2 Swanst. R. 378 ; Malcolm v. Scott, 3 Hare, 39. * Sir Thomas Plumer (master of the rolls), in Meux v. Maltby, 2 Swanst. K. 278, went largely into the general rule and the ekceptions. In that case a joint stock company, authorized by act of parliament to bring suits in the name of their treasurer, purchased an estate, pending a suit against the vendors, to compel the specific performance of an agreement to grant a lease of a part. On a bill by the vendee against the treasurer and directors, the plaintiffs were declared enti- tled to a lease, and the treasurer was enjoined not to disturb their possession. But the court refused to decree an execution of the lease ; as the rest of the proprietors were not parties, being very numerous ; and the court would not com- pel them ais absentees to do any act. On that occasion the learned judge said : " The only novelty is, that the bill requires an act to be done by the absentees. Not having them before the court, though their rights may be bound, there is a difficulty in making them act. The plaintiff requires special performance of the agreement ; and it would hardly be sufficient, supposing it proper, for a few to execute a lease on behalf of the rest. In a conveyance of the interest, all must join. But that difficulty presents no objection to binding the rights of the parties not before the court. That is authorized by every one of the cases referred to. If the court cannot proceed to compel the defendants to do the act required, it must go as far as it can." § 80, 81.] PARTIES TO BILLS. 89 or if they have rights wholly distinct from those of the other par- ties ; or if the decree ought to be pursued against them ; then the court cannot properly proceed to a determination of the whole cause without their being made parties.^ And, under such cir- cumstances, their being out of the jurisdiction constitutes no ground for proceeding to any decree against them or their rights or interests ; but the suit, so far at least as their rights and inter- ests are concerned, should be stayed ; for to this extent it is una- voidably defective.^ [Thus, in a late case, where a suit was ' Mitf. Eq. PI. by Jeremy, 31, 165 ; Fell v. Browne, 2 Bro. Ch. R. 276 ; Gray V. Schenck, 4 Comst. 460 ; Attorney-General v. Baliol College, 9 Mod. E. 409 ; Spurru. Scoville, 3 Cush. 578; Inchiquin v. French, Ambl. R. 33; Browne v. Blount, 2 Russ. & Mylne, 83 ; Roveray v. Grayson, 3 Swanst. R. 145, note; Smith ?;. Hibernian Mine Company, 1 Sch. & Lefr. 240 ; Joy v. Wirtz, 1 Wash. C. C. 517; Eussell v. Clarke's Ex'ors, 7 Cranch, 72. In Walley t). Walley, 1 Vern. R. 484, the court went very far in sustaining the suit, and in .dispensing with parties. The bill, in that case, charged that the testator was, among other things, possessed of a lease for forty years, of which thirty-five years were unex- pired at his death ; that he bequeathed the residue of property (which included the lease) to the plaintiff, and made the plaintiff's father executor in trust for the plaintiff. It further charged, that the executor surrendered the lease, and took a new one in his own name for the unexpired term, and mortgaged it to one W., which mortgage, by intermediate assignments, came to one of the de- fendants, and he afterwards assigned the equity to another of the defendants, to be sold to pay his debts ; and that the executor then went abroad ; and the object of the bill was to procure an assignment of the mortgage and equity of re- demption, upon the ground that they belonged to the plaintiff, and the defend- ants had notice. The court decreed the lease to be assigned to the plaintiff, and that the defendants should account for the profits, and also an account to be taken of the testator's estate, &o., &c., without the executor being made a party. From this statement it would seem indispensable that the executor should have been made a party ; for the decree directed that the sums should be allowed him, which he had paid, beyond the other personal estate received by him. How could an account be properly taken without him ? It is true, that it is said that the court ordered the suit to proceed against the defendants without preju- dice for not bringing the father to a hearing. But the whole equity of the case depended upon the state of the accounts of the executor, and whether the exec- utor had paid debts and legacies, to the full amount of all the property which had come to his hands, and, at all events, whether he had paid to an amount be- yond the other personal estate. It is remarkable that in the Register's Book no such order of the court appears. Ibid, note (7). The case of Heath v. Percival, 1 P. Will. 684, turned upon very different considerations as the question of par- ties. See Roveray, 3 Swanst. 145, note. See West v. Randall, 2 Mason, E. 181, 190-197. ' Ibid. 8* 90 , EQUITY PLEADINGS. [CE IV. brought to enforce a charge upon the produce of the estate of an absent party in the hands of his agents and consignees, in perform- ance of an agreement to which the consignees were parties, the court refused to direct an account to be taken of the amount of such produce received by the consignees ; for, as the absent party would neither be bound by the account of what was due the plain- tiff in respect of the charge on the estate, nor be compelled by the decree for payment of what was found due, to allow in the account of his consignees, the payments to be made by them in pursuance of such decree, the account of the receipts of the produce of the estate by the consignees could not be taken for any final purpose.^] In many instances, the objection will be fatal to the whole suit. In others, it will not prevent the court from proceeding to the de- cision of other questions between the parties actually before it, even though such a decision may incidentally touch upon, or question, the rights of the absent parties.^ § 82. A few cases will serve to illustrate this doctrine with its accompanying qualifications. Thus, where a suit is brought to recover a debt against partners, and one is out of the jurisdiction, a decree may (as we have seen) be had against the other.^ The reason seems to be, that in such a case, as each partner is liable for the whole debt, and each in fact represents the whole interests of the partnership, no injustice is done by making the one before ,the court solely liable, and dispensing with the other partner ; as, ■^ Kirwan v. Daniel, 7 Hare, 347, where the case of Browne v. Blount, 2 Euss. 5& M. 83, is commented upon. ^ Inchiquin v. French, Ambler, R. 34 ; Attorney-General v. Baliol College, 9 Mod. R. 409 ; Fell v. Brown, 2 Br. Ch. K. 276 ; Browne v. Blount, 2 Russ. & M. 83 ; Mallow v. Hinde, 12 Wheaton, R. 193 ; Malcolm v. Scott, 3 Hare, R. 39. In Attorney-General v. Baliol College, 9 Mod. R. 409, Lord Hardwicke is reported to have said, in answer to an objection, that the University of Glasgow was not a party to the original decree, and so not bound by it ; " Glasgow indeed waa no party, nor indeed were the plaintiffs obliged to make that University a party, for it is a corporation, and out of the kingdom and reach of process of this court, which is always an excuse for not making them parties ; therefore, this is no objection to make this a void decree as to them." With reference to the case before the court, this might be entirely correct. But the language is far too broad and unqualified if it was meant to be used generally ; for there are many cases where a decree against a party out of the jurisdiction would be void so far as it touched his inter- ests. See Fell v. Brown, 2 Bro. Ch. R. 276, 286 ; Browne v. Blount, 2 Euss. & M. 83 ; Post, § 83 - 85. ' Ante, § 78. § 81 - 84.] PARTIES TO BILLS. 91 indeed, might be done at law in a similar case.^ But, if the bill were brought by one partner against several other copartners, one of whom was out of the jurisdiction, praying, for an account and dissolution of the partnership, there the case might be very differ- ent ; for the absent partner would have a distinct and independent interest, and would seem to be an indispensable party, since the decree must affect that interest, and indeed would pervade the en- tire operations of the partnership.^ [So, where the plaintiff in a judgment creditor's bill seeks to reach the money due on a mort- gage to the debtor, and which is alledged to have been fraudently assigned by him, the assignee of the mortgage must be a party to the bill, although he resides out of the jurisdiction.^] § 83. Another case may be stated, where the objection was held fatal to the entire objects of the suit. A judgment creditor sued out an elegit, and filed a bill for the purpose of an equitable exe- cution against certain real estates, vested in trustees upon certain trusts, under which the debtor was then entitled to the rents and profits during his life. The trustees were defendants in the bill ; but the debtor was abroad, and had been so for several years, and, therefore, could not be made a party to the suit. The court held the objection fatal, notwithstanding the impossibility of the debtor being made a party, because he was the very person whose inter- ests were sought to be affected by the decree.* The sound reason, which dictated this decision, is obvious ; and any attempt to sus- tain the jurisdiction in such a case would subvert the very founda- tion, on which the rule of equity, requiring the joinder of the interested parties, rests; for the decree would either have con- cluded, without a hearing, the interests of the only person really interested to contest it ; or have delivered over the whole matter to new and independent litigation. § 84. Upon the like ground, where a second mortgagee brought a bill against the first, to redeem his mortgage, without making the heir of the deceased mortgagor a party, and the bill alleged, that he was abroad in America ; it was held by the court, that the heir was an indispensable party ; for the natural and common de- cree in such a case is, that the second mortgagee shall redeem the 1 Darwent v. Waltern, 2 Atk. 510 ; Couslad v. Cely, Free. Ch. 83. " See Beaumont v. Meredith, 3 Ves. & B. 180 ; Evans v. Stokes, 1 Keen, R. 32 ; Van Sandau v. Moore, 1 Russ. R. 441 ; Fuller v. Benjamin, 23 Maine, 255. ' Gray v. Schenck, 4 Comst. 460. * Browne v. Blount, 2 Russ. & M. 83. 92 EQUITY PLEADINGS. [CH. IV. first mortgage, and that the mortgagor shall redeem him, or stand foreclosed. Under such circumstances, the foreclosure would conclude the interests of the heir in a suit, to which he was no party. But it was at the same time held, that, in that case, the personal representative of the mortgagor was not an indispensable party .^ § 85. Another case, standing upon analogous reasoning is, where the bail of a judgment debtor brought a bill to stay the proceedings against them by the creditor, and alleged fraudulent conduct on the part of the creditor, and that he had charged the debtor with sums never paid, and had coUusively sold the debtor's property remitted for sale, and prayed an account of all the mer- cantile transactions between the creditor and debtor, and the bill charged the debtor to be out of the jurisdiction of the court ; it was held, that the bill could not be sustained without the principal being brought actually before the court ; for he was an indispen- sable party to the account. . And the case was likened to a suit brought by sureties, who could not be relieved as against the obli- gee, without bringing the obligor before the court.^ § 86. The same doctrine may be illustrated by putting the case of fraud, where several persons, having distinct interests, claim, under independent titles, the whole fund. In such a case, all the persons, who claim by the different titles, ought to be made par- ties ; for a court of equity will not, at least, unless under very special circumstances, change the hands, in which the funds are already placed, especially when the title of the plaintiff is equally open to controversy on behalf of all the claimants. And in such a case, it will ordinarily constitute no sufficient grounds for pro- ceeding in the suit, that one or more of the claimants is out of the jurisdiction.^ > Fell w. Brown, 2 Bro. Ch. R. 276-279; Palk v. Clinton, 12 Ves. 58, 59; Post, § 186. If the bill in this case had sought only a redemption of the &st mortgage, without any foreclosure, there does not seem any sound reason why the court might not have allowed the second mortgagee to maintain the bill without making the heir a party, if the second mortgagee was willing to take a decree without any account, which would bind the heir of the mortgagor. The only effect of the decree then would be, to put the second mortgagee in the place of the first ; leaving the amount due on the first mortgage open to exam- ination in the same way, as if there had been an assignment of the first mortgage to the second mortgagee. ' Roveray v. Grayson, 3 Swanst. K. 145, note. ' Russell V. Clarke's Executors, 7 Cranch, 98. §84-87.] PAETIES TO BILLS. 93 § 87. It has been already stated, that in some cases the court will proceed to a decree against the parties before it, even though other proper parties may be out of the jurisdiction .^ In such cases, the absent party cannot be compelled to do any act. But if the disposition of the property in controversy is in the power of the other parties, the court may act upon them and through them upon that property.'' Thus, where the heir at law of a tes- tator, who had devised his real estate on certain trusts, was out of the jurisdiction of the court, and that fact was charged in the bill, seeking to enforce the trusts, and proved at the hearing, the court directed an execution of the trusts, upon full proof of the execu- tion of the will and the sanity of the testator ;3 although, ordina- rily, upon such a bill, the heir at law is deemed a necessary party.* But in such a case, it is clear, that the heir at law would not be bound by the decree, but he might file a bill to set aside the de- ^ Ante, § 78. " 2 Madd. Ch. Pr. 144 ; Smith v. Hibernian Mine Company, 1 Sch. & Lefr. 238-240; Ante, § 81. ' Mitf. Eq. PI. by Jeremy, 171-173; Smith v. Hibernian Mine Company, 1 Sch. & Lefr. 238-240; Williams v. Whinyates, 2 Bro. Ch. R. 399; Harris v. Ingledew, 3 P. Will. 92, 94; French?;. Baron, 2 Atk. 120; Thompson v. Top- ham, 1 T. & Jerv. 556 ; Cooper, Eq. PI. 38. ' Lord Redesdale (Mitf. Eq. PL by Jeremy, 171, 172,) has made the following remarks on this subject. They show a nice distinction between the case of devisees and heirs. " To a bUl," says he, " to carry into execution the trusts of a will disposing of real estate by sale or charge of the estate, the heir at law of the testator is deemed a necessary party, that the title may be quieted against his demand; for which purpose the bUl usually prays, that the will may be established against him by the decree of the court. But if the testator has made a prior will containing a different disposition of the same property, and which remains uncancelled, and has not been revpked except by the subsequent will, it has not been deemed necessary to make the persons claiming under the prior will, parties ; though if the subsequent will be not valid, those persons may disturb the title under it, as well as the heir of the testator. If, however, the prior will is insisted upon as an effective instrument, notwithstanding the sub- sequent will, the persons claiming under it may be brought before the court to quiet the title, and protect those who may act under the orders of the court in executing the latter instrument." He adds : " If no heir at law can be found, the king's Attorney-General is usually made a party to a bill for carrying the trusts of a devise of real estate into execution, supposing the escheat to be to the crown, if the will set up by the bill should be subject to impeachment. But if any person should claim the escheat against the crown, that person may be a necessary party." But see Orders in Chancery of 1841, Order 30, 31; 1 Craig & Phill. 377; and the 49th and 50th Rules of the Supreme Court of the United States, January Term, 1842 ; Ante, § 81 ; Post, § 150, 163. 94 EQUITY PLEADINGS. [CH. IV." cree as erroneous, or otherwise assert his title at law. And the evidence taken in the case could not be read against him, if he should afterwards dispute the will.^ So that the court could not, on such a bill, estabUsh the will against him, or in any manner insure the title under its decree against his claim.^ In this case, it is obvious, that the court was placed in a predicament, in which one of two alternatives must be adopted ; either wholly to dismiss the bill, which would necessarily delay, to an indefinite period, the settlement of the trusts of the estate ; or to act upon the parties to the trust before the court, and leave the ultimate validity of the title open to contest by the heir. As the latter course would be without prejudice to the heir, and the former was satisfactory to those interested in the objects of the bill, the court might, upon its own principles, proceed to execute the trusts.^ § 88. The same course, for the same reason, was adopted by the court on a bill brought by a residuary legatee for the sale of real estate, pursuant to a will, for the payment of debts, the leg- atee being entitled to the surplus, and the heir at law being out of the jurisdiction, or rather no heir at law being known or foimd. The sale was ordered ; but the court refused to make any decree establishing the will.* § 89. The same doctrine may be illustrated by the case of a bill brought by one of several residuary legatees, or by one of several of the next of kin, for a final settlement and distribution of the estate of a deceased testator or intestate. In general, in such- a case, all the other residuary legatees or distributees ought to be made parties, so that the rights and claims of all may be conve- niently established at the same time and in the same suit.^ But ^ Cooper, Eq. PI. 38; Mitf. Eq. PI. by Jeremy, 172, 173. ' Mitf. Eq. PI. by Jeremy, 172, 173; Smith v. Hibernian Mine Co. 1 Sch. «e Left. 240, 241 ; Thompson v. Topham, 1 Y. & Jerv. 556. * See Cockburn v. Thompson, 16 Ves. 328, 329; Ante, § 81, * French u. Baron, 2 Atk. 120. See Attorney-General v. Baliol College, 9 Mod. R. 409 ; Cooper, Eq. PI. 38 ; Gilb. For. Kom. 157, 158. ^ Dunstall v. Eabett, Rep. Temp. Finch, 243 ; Atwood v. Hawkins, 1 Eep. Temp. Finch, 113 ; Parsons u. Neville, 3 Bro. Ch. R. 365; Sherritt «;. Birch, 3 Bro. Ch. R. 229 ; West v. Randall, 2 Mason, R. 191, 192 ; Cockburn v. Thomp- son, 16 Ves. 321, 328 ; Gilb. For. Rom. 158 ; Haycock v. Haycock, 2 Ch. Gas. 124 ; Cooper, Eq. PI. 39, 40 ; Davoue v. Fanning, 4 John. Ch. R. 199 ; Brown «..Ricketts, 3 John. Ch. R. 555 ; Pritchard v. Hicks, 1 Paige, R. 263. But see Ross V. Crary, 1 Paige, R. 419, note ; and Hallett v. HaUett, 2 Paige, R. 20, 21 ; Mitf. Eq. PI. by Jeremy, 168, note (o) ; Cooper, Eq. PI. 39, 40 ; Gilb. For. Rom. § 87 - 89.] PARTIES TO BILLS. 95 if any such residuary legatees or distributees are out of the juris- diction of the court, and cannot conveniently be made parties, either as plaintiffs or as defendants, the court will dispense with them, and proceed to decree the shares of the parties before it.^ Such a decree is of course not conclusive upon the absentees, or rather persons not made parties. But the general rule is dis- pensed with, because otherwise persons having clear rights would without their own default be precluded from asserting them, even 158 ; Hawkins v. Hawkins, 1 Hare, R. 543, 546 ; Weatherby v. St. Giorgio, 2 Hare, E. 624, 626 ; Harvey v. Harvey, 4 Beavan, E. 215, 220, 221 ; Post, § 207, 207 a; Miller v. Huddlestone, 13 Simons, 467. This seems the general rule as to residuary legatees. But a question has been made, whether, in such a case, it is indispensable to make all the residuary legatees, when known, technical parties by name, or whether it is sufficient for a residuary legatee to sue on behalf of himself and all other residuary legatees, in which case they are, in a sense, deemed parties. (Leigh v. Thomas, 2 Ves. 312.) In Brown v. Eicketts, 3 John. Ch. E. 555, Mr. Chancellor Kent seems to have thought that all the residuary legatees should be technically parties by name ; and he relied on Parsons v. Neville, 3 Bro. Ch. E. 365, and Cockbum v. Thompson, 16 Ves. 327, 328. He held the same doctrine in Davoue v. Fanning, 4 John. Ch. E. 199. The case in 3 Bro. Ch. R 365, was the case of residuary devisees, not of residuary legatees. But in 16 Ves. 328, where Lord Eldon refers to Lord Thurlow's opinion, he considers it applicable to residuary legatees ; but still admitting of exceptions, where it is not necessary or convenient to bring all before the court ; as, for example, where a detinue is left to the individual members of a society, which is very numerous. See Cooper, Eq. PI. 39, 40. In Kettle v. Crary, 1 Paige, R. 417, 419, 420, note, Mr. Chancellor Jones held, that in all cases a residuary legatee might sue in be- half of himself and all others, without making them technically parties. Eefer- ring to the case in 16 Ves. 328, he said : "I deduce from that and other cases the principle, that in the case of the residuary legatees, in common with all the other cases, where it is impracticable to make parties, or when the inconvenience and expense would greatly overbalance the utility of the proceeding, and all the rights and interests of the whole class of persons, to be affected by the decree, may be protected and preserved by their subsequent accession to the suit or the reference before the master, this court will dispense with them as parties on the record, and give the opportunity of introducing them into the suit by subsequent proceedings before the master." See Eoss «. Crary, 1 Paige, E. 412, where Mr. Chancellor Walworth seems to have approved the same doctrine ; and Hallett V. Hallett, 2 Paige, E. 19, 20, where he directly affirmed it. See also West v. EandaU, 2 Mason, E. 190 - 192. It is a general rule, that a pecuniary legatee is not a necessary or proper party to a bill for an account of the personal estate. But a suit against him, and the executor, by the residuary legatee, has been allowed under certain circumstances. The Marquis of Hertford v. The Count Zichi, 9 Beavan, 11. ' Harvey v. Harvey, 4 Beavan, E. 215, 220, 221 ; Post, § 207, 207 o. 96 EQUITY PLEADINGS. [CH. IV. when the rights of others would not necessarily be prejudiced thereby.^ § 90. Upon a similar ground, one of several of the next of kin of the intestate, entitled to distribution, may sue for his dis- tributive share without making the other distributees parties, if the latter are unknown, or cannot be found, and that fact is charged in the bill.^ In such a case the bill may properly be filed on behalf of the plaintifiF, and also of all the other persons, who may be entitled as distributees. But if the bill should be differ- ently framed, and yet sustained, the master, to whom the cause is referred, will be directed to inquire and state to the court, who are all the next of kin of the intestate, entitled as distributees, 1 West V. Randall, 2 Mason, K. 181, 190-199; Coekburn «. THompson, 16 Ves. 321, 328 ; Brown v. Kicketts, 3 John. Ch. R. 555, 556 ; Bradwin v. Harpiir, Ambl. R. 375 ; 2 Madd. Ch. Pr. 146. Mr. Cooper, in his Equity Pleadings, after stating that all the residuary legatees ought to be parties, and referring to 3 Bro. Ch. K. 229, and 365, in support of the proposition, has added: " But one of the next of kin of an intestate may sue for his distributive share, and the master will be directed by the decree to inquire and state to the court who are all the next of kin of the intestate, and they may come in under the decree. But if the plaintiff knows and states in his bill who are the other next of kin, it seems that he must make them parties to the suit." Lord Chief Baron Gilbert (For. Eom. 158) says, that where several persons are entitled as next of kin under the stat- ute of distributions, and one only of them is brought on to a hearing, the court ■will not proceed to a decree. This apparent contrariety may be explained by the suggestion, that in the case supposed by Mr. Cooper, the bill alleges, that the other distributees are unknown ; and in that supposed by Lord Chief Baron Gil- bert, that the other distributees are known, and the bill has no averment to the contrary. Probably, if the distributees are very numerous, even if known, a bill might be maintained by one or more on behalf of all, as was done in the case of appointees under a will in Manning v. Thesiger, 1 Sim. & Stu. 106. In Waite V. Temple, 1 Sim. & Stu. 319, the bill was brought for the administration of a testator's estate, who had given one fifth share of the residue of his estate to one T. P. or his heirs, executors, and administrators. T. P. died in the testator's life- time. The executors of T. P. were made parties, but not his next of kin. The vice-chancellor said, that the next of kin ought to be made parties, upon a claim as personce designates, and the master should inquire who were the next of kin, and with liberty to file a supplemental bill. He added, that if one of the next of kin had in that character been made a party to the suit, and the claim of the next of kin had been raised upon the record, then any other persons found by the master to be next of kin might have been heard by counsel, though not par- ties. But where no one of the next of kin is in that character a party, nor the claim raised upon the record, there must be a supplemental bill. '' Cooper, Eq. PI. 39, 40. See Fenn v. Craig, 3 Younge & Coll. 222, 229. §89-92.] PARTIES TO BILLS. 97 and they may come in under the decree, and take the benefit thereof.^ § 91. Another exception, flowing from the same general princi- ple of the impracticability of making parties, is where a personal representative of a deceased person is a necessary party ; but it is charged in the bill, that no such representative is in existence ; as, for example, if it is charged in the bill, that the representation is in litigation in the Ecclesiastical Court, or some other appropriate tribunal.^ In such a case, the court will retain the bill, notwith- standing the want of parties, and will proceed to a decree, if it can be done without prejudice ; and if not, then it will postpone the cause, until the proper parties can be made.^ Thus, for ex- ample, a bill may be brought for a discovery of real assets against an heir, in order to preserve a debt, without making the personal representative of the deceased a party, if -it is suggested in the bill, that the representation is in litigation in the Ecclesiastical Court.* § 92. So, if the persons, who are proper parties, are unknown to the plaintiflF, and the fact is so charged in the bill, and the bill seeks a discovery of those parties, for the purpose of bringing them before the court, the objection of want of parties will not be al- lowed to prevail, for the reason already assigned, and for the addi- tional reason, that it is one of the very objects of the bill, to obtain • Cooper, Eq. PI. 30, 40 ; West v. Randall, 2 Mason, E. 192- 194 ; Mitf. Eq. ^1. by Jeremy, 167 - 169 ; 2 Madd. Ch. Pr. 146 ; Bennett v. Honeywood, Ambl. R. 710; Montague v. Nucella, 1 Russ. R. 166, 173 ; Waite v. Temple, 1 Sim. & Stu. 319 ; Hallett v. Hallett, 2 Paige, E. 15. In Bradwin v. Harper, Ambler, R. 374, 375, where the plaintifiF sued as residuary legatee of one moiety of one sixth of the personal estate of the testatrix, and there was a mistake in the description of the legatees, and one only of the next of kin was a party on the record as executor, the master of 'the rolls at first doubted, whether he could act for the want of other parties, who were the next of kin. But it appearing, that the next of kin were numerous and living in distant places, and the matter in dispute being very small, and the plaintiff a pauper, he finally decreed the money to be paid. See Waite v. Temple, 1 Sim. & Stu. 319. ' Mitf. Eq. PI. by Jeremy, 180; Cooper, Eq. PL 35. See Atkinson v. Hen- shaw, 2 Ves. & B. 85 ; Jones v. Frost, 3 Madd. R. 1. See Cleland v. Cleland, Prec. Ch. 64. . 2 See Humphreys v. Humphreys, 3 P. Wills 349 - 351 ; Mitf. Eq. PI. by Jer- emy, 178. * Mitf. Eq. PI. by Jeremy, 180 ; Cooper, Eq. PL 35 ; Plunket v. Penson, 2 Atk. 51 ; D'Aranda v. Whittingham, Mosel. R. 84 ; Carey v. Hoxey, 11 Geo. 652. EQ. PL. 9 98 EQUITY PLEADINGS. [CH. IV. the information, which will enable the plaintiff to cure the defect ; and in no other way can it be cured.^ § 93. There is an illustration of the rule, and also of the excep- tion to it, which may be mentioned in this place, as having a pecu- liar point and applicability. In general, where a bill is brought for equitable relief upon a rent charge, chargeable upon divers estates, the rule is, that the owners or terre-tenants of all the es- tates, which are liable to the rent charge, shall be made parties ; not only, that all the persons in interest may be represented, and may, if they please, contest the title ; but also, that they may con- tribute among themselves in the proper proportions, if the rent charge is established, and complete justice be done between them.^ But there are certain well-known exceptions to this rule. Thus, for example, if, in a bill brought against the owners or terre-ten- ants of one of the estates charged, it should appear upon the plead- ings, that the other owners or terre-tenants are unknown ; or that it is uncertain, what the other estates, which are chargeable, are; or whether the title or charge against them is not lost, or become incapable of being distinguished by lapse of time or otherwise; the court would dispense with the other parties ; and at least in the case of a charity, proceed to decree between the parties before the court.^ » Mitf. Eq. PL by Jeremy, 180; Bowyer v. Covert, 1 Vern. 95 ; Heath v. Per- ceval, 1 P. Will. 682-684; Mr. Baron Alderson, in Fenn v. Craig, 3 Younge & Coll. 216, 224, said, that where the bill alleged, that the other proper parties were unknown, so that there was an impossibility in bringing them before the court, it would be a gross absurdity to require them to be made parties, or to allow an objection for want of them. ' Attorney-General v. Wyburgh, 1 P. Will. 599 ; Attorney-General v. Shelly, 1 Salk. 163; Attorney-Generals. Jackson, 11 Ves. 367; Adair v. New Kiver Co. 11 Ves. 444. ' Attorney-General v. Wyburgh, 1 P. Will. 599 ; Attorney-General v. Shelly, I Salk. 163 ; Attorney-General v. Jackson, 11 Ves. 367 ; Adair v. New River Co. II Ves. 444 ; Anon. Cary, R. 33. Although the reasoning would seem to justify the laying down of the proposition in all cases of rent charge, where the excep- tion exists, I have not ventured to state it as applicable, except to cases of charity, for it is in those cases that the exception has been allowed and acted on. But even in cases of charities, the court will take care of the rights and interests of the terre-tenants before the court, ae well as of other terre-tenants not made par- ties, by directing inquiries before the master, whether there are any such, and how far they are chargeable. See on this subject the elaborate judgment of Lord Eldon, in Attorney- General v. Jackson, 11 Ves. 366-373; and Benson v. Bald- win, 1 Atk. 598. § 92 - 94.J PARTIES TO BILLS. 99 § 94. Another exception to the general rule, as to parties, is, where they are exceedingly numerous, and it would be impracti- cable to join them without almost interminable delays, and other inconveniences, which would obstruct, and prdfeably defeat the purposes of justice.^ In such cases the court will not insist upon their being made parties ; but will dispense with them, and pro- ceed to a decree, if it can be done without injury to the persons not actually before the court. This last is an important qualifica- tion of the exception ; for there are still some cases, (as we have seen, and shall hereafter see,^) in which it has been supposed, that courts of equity will not proceed to a decree without all the per- sons in interest being made actual parties, where the decree must directly and essentially affect their interests.^ We say, where the decree must directly affect their interests ; for in every case, in which a decree is made, where the parties being numerous, are on that account dispensed with, and all of them are not before the court, their interests may be incidentally and indirectly affected ; as, for example, if in a bill of this sort an account is taken, and there is a decree, giving a certain portion of a fund to the parties before the court, the parties not before the court will be bound by that account and decree, and the court will protect the defendant acting under the decree, and obeying it, from future litigation on the points so decided ; for otherwise, the defendant would really be deprived of all protection.* But the doctrine above stated as to the necessity of all persons being made actual parties, must now be received with many qualifications, if it be maintainable at all in * Mitf. Eq. PI. by Jeremy, 165-167; Cooper, Eq. PI. 3 9 - 4 1 ; Carey v. Hoxey, 11 Georgia, 651 ; West v. Randall, 2 Mason, R. 192-196 ; Adair v. New River Co. 11 Ves. 429; Cockbum v. Thompson, 16 Ves. 321 ; Wendell v. Van Rens- selaer, 1 John. Ch. R. 349; 1 Mont. Eq. PI. 57-63; Taylor v. Salmon, 4 Mylne & Craig, E. 134 ; Male «. Malachy, 1 Mylne & Craig, R. 559.' In the reporter's note (a) to Fenn v. Craig, 3 Younge & Coll. 224, there is a collection of some of the leading authorities on this subject. Hawkins v. Hawkins, 1 Hare, R. 543, 546 ; Weatherby v. St. Giorgio, 2 Hare, R. 624, 626 ; Harvey v. Harvey, 4 Bea- van, R. 215, 220, 221 ; Ante, § 89 ; Post, § 132, 150, 207, 207 a. » Ante, § 81, 82 ; Post, § 130, 132, 135, 135 a. » Ante, § 81, 82; Post, § 130; Evans v. Stokes, 1 Keen, R. 32; Beaumont v. Meredith, 3 Ves. & B. 180; Van Sandau v. Moore, 1 Russ. R. 441; Leigh «. Thomas, 2 Ves. 312; West v. Randall, 2 Mason, R. 193-196. • Mitf. Eq. PL by Jeremy, 167-171 ; Farrell v. Smith, 2 Ball. & Beatt. 337, 341, 342 ; Kenyon v. Worthington, 2 Dick. R. 668 ; Hallett v. Hallett, 2 Paige, B. 18-20. 100 EQUITY PLEADINGS. [CH. IV. its general signification, as will appear more fully in -Our subse- quent remarks.^ § 95. Thus, we see, that by the general rule, the parties, although numerous, areistill ordinarily required to be brought before the court ; that there is an exception allowed, founded on the mere fact of numerousness, when it may amount to a great practical inconvenience or positive obstruction of justice ; and again, that qualifications are introduced, which limit the effect of the excep- tion to cases within the general mischiefs, which it was intended to remedy. In all cases governed by the exception, it seems proper to allege in the bill, unless it is otherwise apparent upon its face, that the parties are too numerous to make it practicable, even if known, to prosecute the suit, if all are made parties.^ § 96. In truth, the same general principle pervades the whole course of equity proceedings, in all these apparently irreconcilable or anomalous cases. It has been well observed, that the general rule, being established for the convenient administration of justice, ought not to be adhered to in cases, in which, consistently with practical convenience, it is incapable of application ; for then it would destroy the very purpose for which it was established.^ The exceptions, therefore, turn upon the same principle, upon which the rule is founded. They are resolvable into this, either that the court must wholly deny the plaintiflf the equitable relief, to which he is entitledj or that the relief must be granted without making other persons parties. The latter is deemed the least evil, when- ever the court can proceed to do justice between the parties before it, without disturbing the rights or injuring the interests of the absent parties, who are equally entitled to its protection.* And > Post, § 107-115, 130, 132, 135, 135 a. " Weld V. BonBam, 2 Sim. & Stu. 91. See Wallworth v. Holt, 4 Mylne & Craig, 619, 635-639; Harvey v. Harvey^ 4 Beavan, R. 215, 220, 221 ; Gordon V. Pym, 8 Hare, R. 223 ; Ante, § 94 ; Post, § 132 a, 132 6, 149, 207, 207 a, 216. * Cockburn v. Thompson, 16 Ves. 826 ; Adair v. New River Co. 11 "Ves. 444; Good V. Blewitt, 13 Ves. 397; Wendell v. Van Rensselaer, 1 John. Ch. R. 349, 350; West v. Randall, 2 Mason, R. 193, 194; Dummer w. Wood, 3 Mason, R. 317, 318; Taylor v. Sahnon, 4 Mylne & Craig, 141 ; Male v. Malachy, 1 Mylne & Craig, 559 ; Richardson v. Hastings, 7 Beavan, R. 325; Post, § 135 a, 223. * West V. Randall, 2 Mason, R. 195 ; Cockburn v. Thompson, 16 Ves. 326 - 380. In Cockburn v. Thompson, 16 Ves. 329, Lord Eldon, referring to the general rule, and this class of exceptions to it, said: — " The principle (of the general rule) being founded in convenience, a departure from it has been said to be justifiable §94-96.] PARTIES TO BILLS. 101 even in the cases in wliich the court will thus administer relief, so solicitous is it to attain the purposes of substantial justice, that it ■wUl generally require the bill to be filed, not only in behalf of the plaintiif, but also in behalf of all other persons interested, who are not directly made parties, (although in a sense they are thus made so,) so that they may come in under the decree, and take the ben- efit of it, or show it to be erroneous, or entitle themselves to a rehearing.^ The court will go further, and in such cases, it will entertain a bill, or petition, which shall bring the rights and inter- ests of the absent parties more distinctly before the court, if there •when necessary. And in all these cases the court has not hesitated to depart from it with the view by original and subsequent arrangement, to do all that can be done for the purposes of justice rather than hold that no justice shall subsist among persons who may have entered into these contracts." In Wood v. Dum- mer, 3 Mason, R. 317, the general rule, and the exceptions to it, were summed up in the following language : — " The general rule is, that all persons materially interested, either as plaintiffs or defendants, are to be made parties. There are exceptions, just as old and as well founded as the rule itself. Where the parties are beyond the jurisdiction, or are so numerous that it is impossible to join them at all, a court of chancery will make such a decree as it can without them. Its object is to administer justice ; and it will not suffer a rule, founded in its own sense of propriety and convenience, to become the instrument of a denial of justice to parties before the court, who are entitled to relief. What is practicable to bring all interests before it wiU be done. What is impossible or impracticable, it has not the rashness to attempt ; but it contents itself with dis- posing of the equities before it, leaving, as far as it may, the rights of other persons unprejudiced." Ante, § 94 ; Post, § 132 a, 132 b, 149, 150, 207, 216. ' West V. Randall, 2 Mason, R. 193; Adair v. New River Company, 11 Ves. 444; Cockburn v. Thompson, 16 Ves. 326-328; Good v. Blewit, 19 Ves. 336; Ante, § 94; Post, § 144, 150, 207-216. The case of Good v. Blewit, 13 Ves. 397; S. C. 19 Ves. 336, shows with what solicitude the ccfurt will watch over and protect the interests of the absent persons, not parties, in all cases of this sort. See also AngeU v. Haddon, 1 Madd. R. 529. Lord Redesdale, with refer- ence to this subject, used the following language (Mitf Eq. PI. by Jeremy, 1 78) ; — "In some cases, when it has happened at the hearing of a cause, that the personal representative of a deceased person, not a party to the suit, ought to be privy to the proceedings under a decree, but that no question could arise as to the rights of such representative on the hearing, the court has made a decree directing proceedings before one of the masters of the court, without requiring the representative to be made a party by amendment or otherwise ; and has given leave to the parties in the suit to bring a representative before the master, on taking the accounts or other proceedings directed by the decree, which may concern the rights of such representative. And a representative, thus brought before the master, is considered as a party to the cause in the subsequent proceedings." 9* 102 EQUITY PLEADIHGS. [CH. IV. is any certainty, or even any danger, of injury or injustice to them.^ We shall presently see this doctrine fully borne out, -when we advert to the cases, which illustrate the nature, and character, and extent of this class of exceptions.^ § 97. The most usual cases arranging themselves under this head of exceptions are, (1.) where the question is one of a com- mon or general interest, and one or more sue, or defend for the benefit of the whole ;^ (2.) where the parties form a voluntary association for public or private purposes, and those, who sue, or defend, may fairly be presumed to represent the rights and inter- ests of the whole ; * (3.) where the parties are very numerous, and although they have, or may have separate distinct interests ; yet it is impracticable to bring them all before the court.^ § 98. In the first of this class of cases, may be included suits brought by a part of the crew of a privateer against prize agents for iin account, and their proportion of the prize money. In a case of this nature, if the bill be brought by a few of the crew, on behalf of themselves only, it will not be sustained.® But if it be brought on behalf of themselves, and all the rest of the crew, who had signed the articles, and had not received their shares of the prize money, it wUl be sustained, from the manifest inconvenience of adopting any other course.^ And as it has been well observed, ^ Ibid. See also Weld v. Bonham, 2 Sim. & Stu. 91 ; Ante, § 95. ' Post, § 97-135. ' 1 Mont. Eq. PL 61 ; Cooper, Eq. PL 40; Id. 186 ; Mitf. Eq. PL by Jeremy, 166, 167. ♦ 1 Mont. Eq. PL 58-60 ; Cooper, Eq. PL 40 ; Id. 186, 187. We are care- fully to distinguish cases of tlis sort from cases where there are numeroug parties in a joint stSck company, and a few sue to recover back deposits paid by them from the directors, upon the ground of an original fraud practised by the directors in the original scheme, where they allege that the names of the otheY shareholders are unknown to them; for in such a case they do not touch the rights of any parties not before the court, but seek for redtess only for a com- mon fraud committed against themselves. Blain v. Agar, 2 Sim. 289. But fdr such an allegation, or for an allegation of numerousness (if not apparent) each shareholder would be compellable to sue severally for his own deposit ; Id. ; Jones V. Garcia del Kio, 1 Turn. & Russ. 297 ; Colt v. Woolaston, 2 P. Will. 154 ; Hitch- ens V. Congreve, 4 Euss. B,. 562, 576 ; Walburn v. Ingilby, 1 Mylne & K. 77. * West V. Randall, 2 Mason, E. 192-196 ; 1 Mont. Eq. PL 61 ; Cooper, Eq. PL 41 ; Id. 186, 187; Mitf Eq. PL by Jferemy, 170, 182. » Leigh V. Thomas, 2 Ves. 312; Good u.'Blewit, 13 Ves. 397; S. C. 19 Yes. 336 ; West v. Randall, 2 Mason, R. 193, 194 ; 1 Mont. Eq. PL 61. ' Ibid. ; Chancey v. May, Prec. Ch. 592 ; Leigh v. Thomas, 2 Ves. 312 ; Pear- §96-99.] PARTIES TO BILLS. 103 that no case can call more strongly for indulgence, than where a number of seamen have interests in the same subject-matter ; for their situation at any period, how many are living at any one given time, how many are dead, and who are entitled to representation, cannot ordinarily be ascertained.^ § 99. Similar reasons have induced the court to depart from the general rule in another class of cases, where the suit is brought on behalf of many persons in the same interest, and all the persons answering that description cannot easily be discovered or ascer- tained. Thus, a few creditors may maintain a suit on behalf of themselves and all the other creditors of a deceased debtor, against his proper representatives for an account and application of his assets, real as well as personal, in payment of their de- mands.^ And it seems that the doctrine equally applies, whether the suing creditors are creditors whose debts are then absolutely due, or the debts, although present debts are payable in future, (debitum in presenti solvendum in fwturo.Y Indeed, if the bill by a creditor seeks to affect or charge the real estate of the debtor with a debt in common with other creditors, the bill not only may, but ought to be brought on behalf of all the creditors, and not of himself alone.* In all bills of this sort, the whole administration son V. Belchier, 4 Ves. 627. The case of MoiFat v. Farquharson, 2 Bro. Ch. K. 338, contains a contrary doctrine ; but the doctrine in that case has been over- ruled. See 2 Bro. Ch. K. 338, Mr. Belt's note (1). See also CuUan v. Duke of Queensbury, 1 Bro. Ch. K. 101, and Mr. Belt's note (1) ; Lloyd v. Loaring, 6 Ves. 777. 1 Good V. Blewit, 13 Ves. 397; Leigh v. Thomas, 2 Ves. 312; West v. KandaD, 2 Mason, E. 193, 194 ; Hendrick v. Eobinson, 2 John. Ch. R. 296, 297. In the case of Good v. Blewit, 13 Ves. 397, which was the case of a foreign crew suing for the benefit of all the crew ; the master of rolls (Sir WUliam Grant) took notice of the feet, that it was a case in which the defendants sued for the whole. He said : " It is not a case where a great number of persons, who ought to be defendants, are brought before the court, but are to be bound by a decree against a few." This latter circumstance, however, wcaild not be decisive in all cases of defendants ; though it might be in some. See Meux v. Maltby, 2 Swanst. R. 276, and the cases there cited ; Mayor of York v. Pilkington, 1 Atk. 284 ; Calvert on Parties in Equity, 46. " 1 Mont. Eq. PI. 62 ; Mitf. Eq. PI. by Jeremy, 166. In Burney v. Morgan, 1 Sim. & Stu. 358, it was held, that a mortgagee cannot sue in behalf of himself and all other creditors, because he has no common interest with them ; and when a creditor sues in behalf of all, it is permitted upon the ground of there being a common interest in all. Post, § 102. " Whitmore v. Oxborrow, 2 Tounge & Coll. New K. 13, 17. ♦ May V. Selby, 1 Younge & Coll. New R. 236. 104 EQUITY PLEADINGS. [CH. IV. and settlement of the estate is assumed by the court, the assets are marshalled, and the decree is made for the benefit of all the cred- itors. The other creditors may come in under the decree, and prove their debts before the master, to whom the cause is referred, and obtain satisfaction of their demands, equally with the plaintiffs in the suit ; and under such circumstances they are treated as parties to the suit. If, however, they decline so to come in before the master, they will be excluded from the benefit of the decree ; and yet they will from necessity be considered as bound by the acts done under the authority of the court.^ But a few creditors win not be permitted to bring a bill of this sort, for an account and administration of the assets, without saying in the bill, that it ' Mitf. Eq. PI. by Jeremy, 165, 166 ; Leigh v. Thomas, 2 Ves. 312, 313; Neve V. Weston, 3 Atk. K. 557 ; Cooper, Eq. PI. 39, 106 ; West v. Kandall, 2 Mason, K. 194; Law w. Rigby, 4 Bro. Ch. E. 60; Good v. Blewit, 19 Ves. 336; Hen- dricks V. Robinson, 2 John. Ch. R. 283, 296 ; Hallett v. Hallett, 2 Paige, E. 18, 19; Ross V. Crary, 1 Paige, E. 417, note. Mr. Chancellor Walworth, in Hallett V. Hallett, 2 Paige, E. 19, has expounded this whole doctrine with great clear- ness. " If," says he, " there are many parties standing in the same situation, as to their rights or claims upon a particular fund, and, where the shares of a part cannot be determined, until the rights of all the others are settled or ascertained, as in the case of creditors of an insolvent estate or residuary legatees, all the parties interested in the fund must in general be brought before the court, so that there may be but one account, and one decree, settling the rights of all. And if it appears on the face of the complainant's bill, that an account of the whole fund must be taken, and that there are other parties interested in the dis- tribution thereof, to whom the defendants would be bound to render a similar account, the latter -may object, that all, who have a common interest with the complainants, are not before the court. In these cases, to remedy the practical inconvenience of making a great number of parties to the suit, and compelling those to litigate who might otherwise make no claim upon the defendants, or the fond in their hands, a method has been devised of permitting the complainants to prosecute on behalf of themselves, and all others standing in the same situar tion, who may afterwards elect to come in and claim as parties to the suit, and bear their proportion of the expenses of the litigation. If such parties neglect to come in under the decree, after a reasonable notice to them for that purpose, the fund will be distributed without reference to any unliquidated or unsettled claims, which they might have had upon the same. But if the rights of such absent parties are known and ascertained by the proceedings in the suit, pro- vision will be made for them in the decree. (Anonymous, 9 Price's Rep. 210.) In either case, the court will protect the defendants against any further htiga- tion in respect to the fond." In the case of creditors coming in before the master, they have been held entitled to rehear the cause, though not technically parties, because the decree affected their interest. Gifford v. Hort, 1 Sch. & Lefr. 409. § 99.] PARTIES TO BILLS. 105 is brought on behalf of themselves, and all the rest of the credit- ors ; for otherwise, the executor or administrators might be com- pellable to account de novo with all the other creditors in other bills.^ But when the bill is brought on behalf of themselves, and ^ Leigh V. Thomas, 2 Ves. 313; Brown v. Kicketts, 3 John. Ch. K. 553, 555, 556. But see Brinckerhoff v. Brown, 6 John. Ch. K. 151. In the ordinary proceedings before the master, all other creditors, except these coming in before the master, and proving their debts, are generally excluded from the benefit of the decree. But still they may file a bill, subsequently, to establish their own rights, not disturbing what has been done under the decree. But, sometimes, the court gives directions, in cases of this sort, to the master, to ascertain the claims of all persons interested. In such a case, if the master reports any claims due to particular creditors, and others, who do not come in under the decree, the court will sometimes retain the bill for their benefit, and direct the master to advertise anew for them to come in, and take the benefit of it ; as, for exam- ple, if it should appear upon the master's report, that they were beyond sea, or out of the jurisdiction at the time. Lord Eldon, in Good v. Blewit, 19 Ves. 336, 339, explained this subject very fiilly. Referring to the decree in that case, which directed that the master should report as to all the persons entitled to a share of the proceeds of a prize, he said : " Taking this decree to be right, under the special circumstances of the case, it seems to require some addition. Upon the master's report, in a creditor's suit, the court knows nothing of any demand except of those persons who have established their debts. But the special circumstances of this case are, that the original decree directs the master to state who are entitled ; and he has stated, that, not only those who have come in, but that others also, who have not come in, are entitled to certain shares. Upon that fact, therefore, the court is to decide, whether, notwithstanding then- title to a proportionable sum upon an account, it would exclude them from the benefit of the decree, or would leave them to do, what they would be entitled to do, to institute a new suit, if they think proper ; as it is clear, by analogy to the case lof creditors, that if they do not come in, and are excluded from the benefit of this decree, that does not prevent another bill, having due regard to costs, &c. Generally, however, the court does not take notice of other creditors ; as the report does not bring before it that fact, to which, if in a special case it does appear, the court does give attention. Where, for instance, there are circum- stances accounting for the non-claim, as that some of the parties had gone to sea, the court would take care that what the report stated them to be entitled to should not be lost. The question now is, whether the opportunity of making out that case ought to be given ; and it seems to me, that further advertisements ought to be directed as to the claimants not coming in ; not taking the account as to them; but taking it as to the others. That direction, therefore, may be inserted in the decree for the purpose of bringing before the master these indi- viduals, whom he has stated to be entitled ; and that, with regard to those who shall come in upon further advertisements, he shall execute the decree, and not as to the others." See also Angell v. Haddon, 1 Madd. R. 529 : Anon. 9 Price, R. 210, and Hallett u. Hallett, 2 Paige, 19, 20, supra, note (3); Cockburn v. Thompson, 16 Ves. 327. 106 EQUITY PLEADINGS. [CH. IV. all others, all creditors are, in a sense, deemed to be before the court.^ § 100. Lord Redesdale has remarked upon this class of cases, that, " As a single creditor may sue for his demand out of the per- sonal assets, it is rather matter of convenience than of indulgence, to permit such a suit by a few on behalf of all the creditors. And it tends to prevent several suits by several creditors, which might be highly inconvenient in the administration of 'assets, as well as burdensome on the fund to be administered. For, if a bill be brought by a single creditor for his own debt, he may, as at law, obtain a preference by judgment in his favor over other creditors in the same degree, who may not have used equal diligence."^ There is great truth in this remark ; for courts of equity are thus enabled to act fully upon their own favorite maxim, that equality is equity. But it does not disclose the whole ground of the doc- trine. It is, on the other hand, the real danger of doing injustice to parties not before the court, where interests might be jeoparded without being represented ; and the utter impracticability of mak- ing all the interested persons actually and technically parties, from their being unknown, or being so exceedingly numerous, that any obligation to join them all would amount to a positive denial of justice, which constitute the main grounds of the doctrine.^ ' Adair v. New River Company, H Ves. 444. ' Mitf. Eq. PL by Jeremy, 166, 167. But a single creditor is not permitted in this way to acquire any preference over creditors, of a higher degree, nor necessarily in all cases over those of an equal degree ; for wherever a single creditor brings a bill, although no general account of the debts is directed ; but the course is, to direct an account of the personal estate, and of that particular debt ; yet the common decree is, that that debt shall be paid in the course of administration. All debts, therefore, of a higher nature, or even of an equal nature, may be paid by the executor, and must be allowed to him in Ms dis- charge. Attorney-General v. Cornthwaite, 2 Cox, R. 44 ; Bedford v. Leigh, 2 Dick. R. 708; Newland v. Champion, 1 Ves. 104; Peacock v. Monk, 1 Ves. 131 ; Pritchard v. Hicks, 1 Paige, R. 270; Anon. 3 Atk. 572. ' Chancey v. May, Prec. Ch. 592 ; Hendricks v. Robinson, 2 John. Ch. R. 296. When a single creditor sues for his own debt, (as we have seen that he may,) he need not make any person but the personal representative of the de- ceased a party. We have also seen, that in such a suit, the usual decree is, not to direct a general account of the whole estate, but only a decree for an account of the personal assets, and the payment of the debt in the course of administrar tion. But although this is thfe usual decree, it is not therefore to be considered as absolutely incompetent for the court, upon' such a bill, to make a more gen- eral decree for a general account, as is done in the case of a common bill for all § 99 - 101.] PAKTIES TO BILLS. 107 § 101. But although one creditor may thus be permitted to file a bill on behalf of himself and all the other creditors ; yet it has been said, that this is to be understood with this limitation, that the bill is not filed for any peculiar interest of the plaintiff; but it is one, where all the creditors have a common interest with him in all the objects of the bill.^ Upon this ground it has been heldj that a mortgagee caimot sue on behalf of all the creditors in re- gard to his mortgage debt ; for he has no common interest with the creditors at large in enforcing it.^ Upon the same ground it the creditors. On the contrary, a case may be made out, upon the answer and proofs, which may render it, if not indispensable, at least highly expedient for the court, for the purposes of justice, to adopt this latter course. 1 Story, Comm. on Eq. § 547, note (2), and the authorities there cited. See also Wiser v. Black- ley, 1 John. Ch. K. 438 ; McKay v. Green, 3 John. R. 58, 59 ; Thompson v. Brown, 4 John. Ch. R. 619, 630, 643, 646 ; Koss. v. Crary, 1 Paige, R. 417, 419, note; Hallett u. Hallett, 2 Paige, R. 18, 19. In this last case, Mr. Chancellor Walworth used the following language : " I apprehend the reason, why one creditor, or one legatee, who has a specific claim against the estate, may sue in his own name only, and yet, that a decree may be made on such bill for a gen- eral distribution of the fund to be this : It does not appear upon the bill that there are not sufficient assets to pay all the creditors or legatees ; and therefore no general account and distribution of the fund may be necessary. I understand the rule in that case to be, if the executor admits a sufficiency of assets, there is to be a decree for the payment of the particular debt or legacy, without any gen- eral decree for an account. Hence, the ordinary prayer in the bill, that the de- fendant may admit assets, or set out an account in his answer ; and if he admits assets he is not obliged to set out the account. (Per Sir Thomas Plumer, V. C, Cooper's Rep. 215.) But if, by the answer of the defendant, it appears there will be a deficiency of assets, so that all the creditors cannot be paid in full, or that there must be an abatement of the complainant's legacy, the court will make a decree for the general administration of the estate, and a distribution of the same among the several parties entitled thereto, agreeable to equity. If several suits are depending in favor of different creditors or legatees, the court will order the proceedings in all the suits but one to be stayed, and will require the several par- ties to come in under the decree in such suit, so that only one account of the estate may be necessary.'' In the case of Egberts v. Wood, 3 Paige, R. 520, the same learned judge said : " Where it appears upon the face of the bill, that there will be a deficiency in the fund, and that there are other creditors or legatees, who are entitled to a ratable proportion with the complainants, such creditors or legatees should be made parties to the bill, or the suit should be brought by the complainants on behalf of themselves and all others standing in a similar situa- tion, and it should be so stated in the bill." * Post, § 157, 158. ' Burney v. Morgan, 1 Sim. & Stu. 358, 362 ; Jones v. Garcia del Rio, 1 Turn. 6 Russ. 297 ; White v. Hillacre, 3 Younge & Coll. 597. See Palmer v. Dutcher, 7 Paige, R. 437 ; Calvert on Parties, § 10, p. 220. 108 EQUITY PLEADINGS. [CH. IV. has also been held, that if the plaintiff seeks to establish a priority of right or charge, he cannot file a bill on behalf of all the cred- itors ; but the latter must be actual parties ; for the suit is not homogeneous, or for objects equally beneficial to all the parties ; and therefore each creditor has a distinct right and interest to contest the plaintiff's claim.^ But there are more recent authori- ties, which inculcate a contrary doctrine, and establish, that a mortgagee may sue on behalf of himself and all other creditors, notwithstanding he claims a right to prior satisfaction, out of the mortgaged property .^ And perhaps a similar rule would apply to the case where a creditor claims any other priority of charge ; for if he files his bill on behalf of all creditors, they are so far parties to the suit, that they have a right to appear and contest the valid- ity of his asserted priority over other creditors.^ § 102. Upon similar grounds, where there are a number of creditors, who are parties to a deed of trust for the payment of debts, a few have been permitted to sue on behalf of themselves and the other creditors, named in the deed, to enforce the execu- tion of the trust.* [And in a late case in America, it has been held, that where creditors claiming under a deed of trust for the payment of debts, are in a posterior class, they must make all of their own class parties, but need not include those who have the prior incumbrance.^ And in another case it was said, that if a deed of trust provided for the creditors in classes, those of the first class may call upon the trustees for an account and payment to the extent of the trust fund, without making the second class » Newton v. Earl of Egmont, 5 Sim. R. 137 ; S. C. 4 Sim. R. 574, 585. See Stevenson v. Austin, 3 Met. 482 ; Post, § 133, note, 157, 158 ; Calvert on Parties, §10, p. 221. 2 Greenwood v. Firth, 2 Hare, R. 241, note (J) ; Skey v. Bennett, 2 Tounge & Coll. New R. 405 ; WMte v. Hillacre, 3 Younge & Coll. 597, 609, 610, note; Post, § 158 ; Aldrich v. Westbrook, 5 Beavan, R. 188 ; 1 Story, Bq. Jurisp. § 549. ' Whitaker «. Wright, 2 Hare, R. 310, 312-315; Owen? v. Dickenson, 1 Craig. & Phill. 48, 56. See Post, § 133, 153. ' * Mitf. Eq. PI. by Jeremy, 167 ; Id. 175, 176 ; Routh v. Kinder, 3 Swanst. E. 145, note; Boddy v. Kent, 1 Meriv. R. 361 ; Weld v. Bonham, 2 Sijn. & Stu. 91; Handford v. Storie, 2 Sim. & Stu. 196 ; Peacock v. Monk, 1 Ves. 131 ; 1 Moot Eq. PI. 62 ; Newton v. Earl of Egmont, 4 Sim. R. 574 ; S. C. 5 Sim. 130 ; Pow- ell V. Wright, 7 Beavan, R. 444 ; Atherton v. Worth, 1 Dick. R. 376 ; Post, § 14.9, 157. ' Patton V. Bencini, 6 Ired. Eq. R. 204. §101-103.] PARTIES TO BILLS. 109 creditors parties.^] It is obvious that in many such cases, unless all the creditors were brought before the court, or were allowed to come before the court, the due execution of the trust might be im- practicable, or be enforced injuriously to the interests of the credit- ors not parties.^ It has been remarked by Lord Redesdale, that " this seems to have been permitted purely to save expense and delay. If a great number of creditors thus specially provided for by a deed of trust were to be made plaintiffs, the suit would be liable to the hazard of frequent abatements by the death of creditors ; and if many were made defendants, the same inconvenience might happen, and additional expense would unavoidably be incurred."^ § 103. The mischief would not in many cases stop here ; for where the debts due to any of the creditors were unascertained, and depended upon the future adjustment of accounts, and the funds under the trust deed were inadequate to a full discharge of all the debts ; or where any of the creditors had a preference, and their debts were unliquidated ; or where any of the preferred cred- itors were out of the country ; — in these and many other instan- ces, the difficulty of administering substantial justice between the creditors, if the court were compelled to wait until all of them were technically parties before the court, would be almost insu- perable. A single creditor, in cases of this sort, would not be per- mitted by a court of equity to sue for his own single demand with- out bringing the other creditors in some form or manner before the court, from the obvious inconvenience and apparent injustice in deciding upon the extent of their rights and interests in their absence.* The substitution, therefore, of a few to sue for the ben- ' Smith V. Turrentine, 8 Ired. Eq. R. 185. It miglit be difFerent if the trust deed provided that any payment by the debtor were to be credited in extinguish- ment of the debt, for the second class creditors would be interested. Id. "^ Mitf. Eq. PI. by Jeremy, 167, and cases before cited. ' Mitf. Eq. PI. by Jeremy, 167; Post, § 157. ' Mitf. Eq. PI. by Jeremy, 167. In Joy v. Wirtz, 1 Wash. Cir. R. 417, which was a suit in equity, brought by two creditors for the purpose of setting aside a release made by all the creditors to a debtor upon an assignment of his estate for their benefit, Mr. Justice Washington thought that all the creditors should have been made parties, or the bill should have been brought on behalf of all ; for all of them might be affected by the decree, setting aside the release, as it would not be set aside as to a part of the creditors, and left to operate on others. On that occasion he said : " Where the creditors are to be paid out of a particular fund, or are united in the same transaction so as to produce a privity between them, all EQ. PI,. 10 110 EQUITY PLEADINGS. [CH. IV. efit of the whole, at the same time that it subserves the interests of all the creditors, by enabling them to make themselves active in the final apportionment and distribution of the trust funds, gives to the watchful and dihgent an opportunity of having prompt justice done to them, without any wanton sacrifice of the rights of, others, or any sacrifice, not caused by the laches or indifference of the latter.^ § 103 a. The foregoing are cases of a creditor's bill brought against the common debtors of all of them or their representatives. And ordinarily in such cases, all the debtors or their representa- tives must be made parties defendants. But cases may occur, where the court will dispense with some of the debtors. Thus, for example, where one of several judgment debtors is insolvent are to join, Sc, either by name, or by being represented by a part suing in the names of all." Post, § 157. ' The remarks of Lord Eldon on this subject, in Cockburn v. Thompson, 16 Ves. 327, deserres to be cited here. "In the familiar case," says he, "of cred- itors suing on behalf of themselves and all others, what an infinite number of val- uable interests may be bound, in a sense, not absolutely. As, where the court, for convenience, dispenses with the presence of parties, the principle leads it, by future arrangement, to find out the means of giving them an opportunity in some shape of coming in. Upon questions of marshalling, whether real estate 'is charged with debts, &o., the case may be sustained originally perhaps by persons having interests of the least value. But certainly any person, afterwards be- coming interested, would have his interest as much attended to as if he had been originally a party. The court must always be open to questions upon the car- riage of the cause, applications for rehearing, &c. ; and I should upon principle, find the means, if not supplied by precedent, of giving a creditor, coming in after the institution of a suit, the opportunity of supporting his interest better than the plaintiff could. A bond creditor having been in partnership with the debtor, may, if there are assets, go in before the master ; but the court must find the means of ascertaining, whether such creditor was not a debtor on the partner- ship account ; and the account must be taken ; or perhaps the court may find itself obliged to direct a bill to be filed ; reserving a proportion of the assets, for the result of the inquiry in an actual suit. Lord Thurlow determined that the general principle requires a residuary legatee to bring before the court all per- sons interested in the residue. But that admits of exception, where it is not necessary, or convenient, that all should be before the court ; as in Chancey v. May, and the case of the Water Works Company. K a residue had been left equally among all the individual members of those societies, upon the same ground of impracticability and inconvenience, it would be competent to some of them to file a bill on behalf of themselves and the others ; though suing as resid- uary legatees." See also Anon. 9 Price, R. 210, where a distinction is taken between the case of creditors and that of legatees, as to their being excluded from the benefit of the decree if they do not appear. §103-104.] PARTIES TO BILLS. Ill and wholly destitute of property, and the fact is distinctly stated in the bill, it is not necessary to make him a defendant to a credit- or's bill to obtain satisfaction out of the equitable interests or choses in action of the other defendants.^ § 104. By analogy to the case of creditors, a legatee, at least if he is not a residuary legatee, is permitted to sue the personal rep- resentative of the testator on behalf of himself and all other lega- tees, in order to procure a settlement of the accounts of his ad- ministration, and a payment of all the legatees.^ In a case of this nature, such a legatee might sue for his own legacy only.^ But a suit on behalf of all the other legatees has the same tendency to prevent inconvenience and expense, as a suit by one creditor on behalf of all the creditors of the same fund.* Even in a suit • Van Cleef t). Sickles, 5 Paige, K. 505. ' We have had occasion, in the preceding note (Ante, § 89, note), to state that there is some diversity of judicial opinion on the point, whether one residuary- legatee can maintain a bill for himself and all the other residuary legatees who are interested ; or whether he must make them technical parties to the bUl. If a legatee be the sole residuary legatee, there does not seem to be any real difficulty in his maintaining a bUl, either for himself alone, or for himself and all the other legatees and parties in interest ; for in either case a general account of the assets must be taken ; and the master will, by the decree, be directed to inquire and state who are the other legatees and other persons interested in the assets ; and the final decree, after the account taken, will be for such assets as belong to the residuary legatee after all other claims are paid. Of course, under the interlocu- tory decree, all other legatees and persons interested wiU have a right to appear before the master, and assert their claims, whether the residuary legatee sue alone, or in behalf of all other persons interested. See Cooper, Eq. PL 39, 40 ; Bennett v. Honeywood, Ambler, K. 709, 710 ; Montague v. Nucella, 1 Euss. R. 173 ; Kettle v. Crary, 1 Paige, E. 417, note ; Hallett v. Hallett, 2 Paige, E. 20, 21 ; Post, § 203, 204. ' Mitf. Eq. PI. by Jeremy, 167 ; Brown v. Eicketts, 3 John. Ch. E. 553 ; Hay- cock V. Haycock, 2 Ct. Cas. 124; Attorney-General v. Eyder, 2 Ch. Cas. 93. See Pritchard v. Hicks, 1 Paige, R. 273 ; Fish v. Howland, 1 Paige, E. 23 ; 1 Mont. Eq. PI. 62, 63. * Mitf. Eq. PI. by Jeremy, 167; Haycock v. Haycock, 2 Ch. Cas. 124; Lloyd u. Loaring, 6 Ves. 779 ; Good v. Blewit, 13 Ves. 339 ; Cockburn v. Thompson, 16 Ves. 327; Attorney-General v. Eyder, 2 Ch. Cas. 178; Brown v. Eicketts, 3 John. Ch. E. 553 ; Fish v. Howland, 1 Paige, R. 20, 23 ; Kettle v. Crary, 1 Paige, R 417, note; Hallett v. Hallett, 2 Paige, E. 20, 21. In Morse v. Sadler, 1 Cox, E. 352, the master of the rolls took a distinction between the case of a legacy payable out of personal estate and that of a legacy cheirgeable on real estate. The bill in that case was filed by one legatee on behalf of himself and all the other legatees, without making the others parties. On that occasion he said : " That it was an established rule, that legatees out of personal estate only need 112 EQUITY PLEADINGS. [CH. IV. brought by a single legatee for his own legacy, unless the personal representative of the testator, by admitting assets for the payment of the legacy, warrants an immediate personal decree against him- self, (by which he alone will be bound,) the court will direct a general account of all the legacies of the same testator ; and if there is a deficiency of assets, it will direct payment of the legacy sued for ratably only with the other legacies, as no preference is allowed in equity among legatees, standing in pari jure, in the ad- ministration of assets.! Indeed, if it appears from the face of the bill, that there will be a deficiency in tlie fund, and that there are other persons, who are interested in it, as creditors, or as legatees, not be parties ; but every person claiming an interest out of real estate must be before the court." And he directed the cause to stand over to add the other lega- tees as parties. It is not very clear upon what precise ground this distinction proceeds. It may, perhaps, be for the reason suggested by Lord Hardwicke in Peacock v. Monk, 1 Ves. 131, that the executor in all cases sustaining the person of the testator, is to defend the estate for himself, for aU creditors, and for all legatees. See Wiser v. Blackley, 1 John. Ch. K. 438. In a biU against an exec- utor by creditors or legatees, it is not ordinarily necessary to make the residuary legatee a party for the same reason. Lawson v. Barker, 1 Bro. Ch. R. 303 ; Anon. 1 Vern. K. 261 ; Wainwright v. Waterman, 1 Ves. jr. 310 ; Brown v. Dowthwaite, 1 Madd. E. 446. In cases of interests in the realty, there is no person authorized by law to represent the interests of all legatees in the realty. In Brown v. Ricketts, 3 John. Ch. R. 553, Mr. Chancellor Kent seems to have acted against the distinction under peculiar circumstances. See also Pish v. How- land, 1 Paige, R. 23 ; Pritchard v. Hieks, 1 Paige, R. 270. In Hallett v. Hallett, 2 Paige, R. 22, Mr. Chancellor Walworth affirmed the doctrine in Morse v. Sad- ler, 1 Cox, R. 352; and thought the case of Brown v. Ricketts, 3 John. Ch. R. 653, properly decided upon its own circumstances. 1 Mitf. Eq. PI. by Jeremy, 168 ; Cooper, Eq. PI. 39, 40. See Haycock v. Haycock, 2 Ch. Cas. 124 ; Montagu v. Nucella, 1 Russ. R. 173; Anon. 9 Price, R. 210. In this respect there seems to be a distinction between the case of cred- itors and that of legatees. In Anon. 9 Price, R. 210, LoM Chief Baron Richards took notice of it. " The reason," he observed, " why creditors are excluded, un- less they should come in within ar limited time, is, because they could not be known to the court, or ascertained, unless they should appear, and parties inter- ested were not to be delayed by the laches of creditors. But that does not apply to legatees, who are entitled to have a proportional part of the fund set apart for the satisfaction of their legacies." See Farrell v. Smith, 2 Ball & Beatt. 347. Where the court has made a decree in a case to ascertain the rights of legatees, and distribute the funds ; and the funds have been distributed among the legatees accordingly, the court will not permit a legatee afterwards to file a bill against the executor for payment of his legacy. His proper remedy, if any, is to file a bill to reverse the original decree as erroneous. Farrell v. Smith, 2 Ball & Beatt. ^341. §104-106.] PARTIES TO BILLS. 113 or otherwise, it seems proper that all the persons in interest should either be made direct parties, or that the bill should be filed on behalf of all of them. And, at all events, the court will take care of their interests by permitting them to come in and assert their claims before the master by its interlocutory decree.^ § 105. Upon similar grounds, where a distribution or applica- tion of the personal estate of a deceased person is to be made among his next of kin, or among persons claiming under a gen- eral description, as, for example, among the relations of a testator or other person, where it may be uncertain who are all the per- sons answering that description, or the circumstances will make it , extremely inconvenient, a bill will be allowed to be filed by one claimant on behalf of himself and all the other persons equally en- titled.^ Such a bill is maintainable, not only upon the ground of the supposed uncertainty of the persons, answering the descrip- tion ; but also, where they may be known, and yet they are ex- ceedingly numerous.^ § 106. But although the court will, in cases of this sort, enter- tain jurisdiction by creditors, legatees, and distributees on behalf ' Ante, § 100, note ; Hallett v. Hallett, 2 Paige, K. 19, 20 ; Egberts v. Wood, 3 Paige, R. 519, 520 ; Mitf. Eq. PI. by Jeremy, 178. 2 Mitf. Eq. PI. 169 ; Id. 167, 168 ; Bennett v. Honeywood, Ambler, K. 709, 710 ; Montagu v. Nucella, 1 Russ. R. 173 ; 1 Mont. Eq. PI. 62, 63 ; Post, § 207 6. As to parties entitled as a class, as, for example, as residuary legatees or distrib- utees, when and under what circumstances all must be made parties, and when a few may sue in behalf of all, see Caldecott v. Caldecott, 1 Craig. & Phill. R. 183, 184; Harvey v. Harvey, 4 Beavan, R. 215, 220, 221; Post, § 207- 207 6. ' Post, § 207 I; Hallett v. Hallett, 2 Paige, R. 19-21; Ante, § 89, note; Cockburn v. Thompson, 16 Ves. 328, 329 ; Manning v. Thesiger, 1 Sim. & Stu. 106 ; Cranboume v. Crispe, Cas. Temp. Finch, 105. In Manning v. Thesiger, 1 Sim. & Stu. 106, where the plaintiffs sued on behalf of themselves and the other legatees and appointees under a will to have the fund transferred to the Court of Chancery, an objection was taken, that all the appointees, who were cestuis que trust under the will, ought to be made technical parties. But it being stated that they were very numerous (more than fifty in number), the vice-chancellor said that they ought regularly to be all made parties to the suit. But as they were very numerous, and the bill was filed on behalf of themselves and the other ap- pointees, the rule might, in this case, be dispensed with. So that numerousness, as well as absence out of the jurisdiction, or being unknown, may constitute a good ground for dispensing with all the residuary legatees being made parties. The same principle would apply, where the individual members of a society, very numerous, were made residuary legatees. Cockburn v. Thompson, 16 Ves. 328. 10* 114 EQUITY PLEADINGS. [CH. IV. of themselves and all others, and will exonerate the executor or administrator, or other trustee, from all liability in respect to pay- ments of the assets made pursuant to its decree ; yet it is not to be understood, that such a decree absolutely binds the absent creditors, legatees, or distributees, who have had no opportunity of proving and presenting their claims, so that they are entitled to no redress, but are to be deemed concluded. On the contrary, although they have no remedy against the executor, or adminis- trator, or trustee ; yet they have a right to assert their claim to a share in the property, against the creditors, legatees, or distribu- tees, who have received it.^ ' David V. Frowd, 1 Mylne & K. 200 ; Gillespie v. Alexander, 3 Kuss. E. 130. The judgment of the master of the rolls, in David v. Frowd, 1 Mylne & K. 200, is so important on this point, that the followmg extract is given : " The per- sonal property," said he, " of an intestate is first to be applied in payment of his debts, and then distributed amongst his next of kin. The person who takes out administration to his estate, in most cases, cannot know who are his creditors, and may not know who are his next of kin, and the administration of his estate may be exposed to great delay and embarrassment. A court of equity exer- cises a most wholesome jurisdiction for the prevention of this delay and embar- rassment, and for the assistance and protection of the administrator. Upon the application of any person claiming to be interested, the court refers it to the master to inquire who are creditoi's, and who are the next of kin, and for that purpose to cause advertisements to be published in the quarters where creditors and next of kin are most likely to be found, calling upon such creditors and next of kin to come in and make their claims before the master, within a reason- able time stated ; and when that time has expired, it is considered that the best possible means having been taken to ascertain the parties really entitled, the administrator may reasonably proceed to distribute the estate amongst those who have, before the master, established an apparent title. Such proceedings having been taken, the court will protect the administrator against any future claim. But it is obvious that the notice given by advertisements may, and must, in many cases, not reach the parties really entitled. They may be abroad, and in a different part of the kingdom from that where the advertisements are pub- lished, or, from a multitude of circumstances, they may not see or hear of the advertisements, and it would be the height of injustice that the proceedings of the coui't, wisely adopted with a view to general convenience, should have the absolute effect of conclusively transferring the property of the true owner to one who has no right to it. It is for this reason that if a party who has not gone in before the master, applies to the court after the master has reported the claimants who have established before him an apparent title, and makes out that he has not been guilty of wilful default in not claiming before the master, the court will refer it to the master, to inquire into his claim, and if it be satis- factorily proved, will, in the administration of the estate, give him the same bene- fit of his title, as if he had originally claimed before the master. This is every § 106, 107.] PARTIES TO BILLS. 115 § 107. The second class of cases, constituting an exception to the general rule, and already alluded to, is, where the parties form a voluntary association for public or private purposes, and those day's practice with respect to creditors. For the same reason if a creditor does not happen to discover the proceedings in the court until after the distribution has been actually made by the order of the court amongst the parties having, by the master's report, an apparent title, although the court will protect the administrator, who has acted under the orders of the court ; yet, upon a bill filed by this creditor against the parties to whom the property has been distributed, the court wiE upon proof of no wilful default on the part of such creditor, and no want of reasonable diligence on his part, compel the parties defendants to restore to the creditor that which of right belongs to him. For this principle, I need only refer to the case of Gillespie v. Alexander, before Lord Etdon, which has been introduced in the argument. There the estate had been apportioned, under the order of the court, amongst the legatees, and actually paid to them ; except that one legatee, being an infant, liis proportion could not be paid to him, but was carried to his account in the suit. After this distribution by the order of the court, a creditor, who had not claimed before the master, established his title ; and Lord Lyndhurst, then master of the rolls, acting upon the principle which I have stated, directed payment of the creditor's demand out of the fund in court, which had been carried to the account of the infant. Lord Eldon considered, most justly, that the share carried to the account of the infant was as much the property of the infant as if it had been actually paid to him, and that the infant's share was liable to the creditor's demand only in the proportion that the other legatees were liable in respect of the sums which they had received, and to that extent reversed Lord Lyndhurst's order ; thus establishing the principle that leg- atees who had received payment under the order of the court were bound to refund to a creditor who had never claimed before the master. It is argued that there is a distinction between a creditor and a person claiming as next of kin, be- cause a creditor, it is said, has a legal title ; the right being equal, there is no dis- tinction in a court of equity between a legal and equitable title. It is not, how- ever, accurate to say that a creditor continues to have a legal title after the fund has been administered in this court ; he has, under such circumstances, lost that title by the administration of the court, and his only remedy is in a court of equity. It is argued, also, that the case is extremely hard upon the party who is to refund, for that he has full right to consider the money as his own, and may have spent it. and that it would be against the policy of the law to recall money which a party has obtained by the effect of a judgment upon a litigated title. There is here no judgment upon a litigated title ; the party who now claims by a paramount title was absent from the court, and all that is adjudged is that upon an inquiry, in its nature imperfect, parties are found to have a ^n'ma/ade claim, subject to be defeated upon better information. The apparent title under the master's report is in its nature defeasible. A party claiming under such circumstances has no great reason to complain that he is called upon to replace what he has received against his right ; complaints of hardship come with little force from the party who seeks to support a wrong." 116 EQUITY PLEADINGS. [CH. IV. who sue or defend, may fairly be presumed to represent the rights and interests of the whole.^ In cases of this sort tlie persons in- terested are commonly numerous, and any attempt to unite them all in the suit would be, even if practicable, exceedingly inconven- ient, and would subject the proceedings to the danger of perpet- ual abatements, and other impediments, arising from intermediate deaths, or other accidents, or changes of interest. Under such circumstances, as there is a privity of interest, the court will allow a bill to be brought by some of the parties on behalf of themselves and all the others, taking care, that there shall be a due represen- tation of all substantial interests before the court.^ And such a bill must be brought on behalf of all the parties in interest ; for if it be brought for the plaintiffs alone, it will not be sustained by the court for want of proper parties.^ § 108. This doctrine may be illustrated by adverting to a case, which has occurred in judgment. A bill was brought by the treas- urer and managers of certain works, called the Temple Mills Brass Works, on behalf of themselves, and all other proprietors and par- ties in the first undertaking, except the defendants, who were the late treasurers and managers, (about thirteen in number,) for an account for several mismanagements, misapplications, and embez- zlements of the partnership funds. The partnership consisted originally of eighteen shares, and these were afterwards divided into eight hundred. The defendants demurred, because the rest of the proprietors were not made parties ; and the demurrer was overruled upon the ground, first, that the bill was on behalf of all other proprietors, except the defendants, and so all of them were, in effect, parties ; and, secondly, that it would be impracticable to make them all parties by name, and there would be continual abatei]i;ients by death, or otherwise, and so no coming at justice, if all were to be made parties.* § 109. The like doctrine has been applied to a case, where a bill was brought by some shareholders in a joint stock company, (the > Mont. Eq. PI. 58-60; Mandeville v. Riggs, 2 Peters, R. 487. , " Cooper, Eq. PI. 40; Chancey v. May, Prec. Ch. 692; Lloyd v. Loaring, 6 Ves. 773 ; West v. Randall, 2 Mason, R. 194-196 ; Baldwin v. Lawrence, 2 Sim. & Stu. K. 18; Hichens v. Congreve, 4 Russ. 562, 576, 577; Gordon v. Pym, 3 Hare, R. 223 ; Barker v. Walters, 8 Beavan, R. 92 ; Mann v. Butler, 2 Barb. Ch. R. 362. ' Baldwin v. Lawrence, 2 Sim. & Stu. 18 ; Whitney v. Mayo, 15 111. 255. * Chancey v. May, Prec. Ch. 692. §107-111] PARTIES TO BILLS. 117 stock of which was divided into six thousand shai'es,) on behalf of all the shareholders, to compel the directors of the company to refund moneys improperly withdrawn by them from the stock of the company, and applied to their own use. Upon the objection being taken of the want of proper parties, the court overruled it, upon the ground that justice would be unattainable, if all the shareholders were required to be made parties to the suit ; and that a separate bill by each shareholder, to recover his propor- tion of the money, would produce enormous inconvenience and multiplied litigation ; and that all the shareholders had one common right and one common interest to be subserved by the suit.^ § 110. The like doctrine has been applied to a case, where there was an Association of Widows, contributing to a fund to pay them annuities. The fund having proved insufficient, application was made to the court by bill, by some of the widows, on behalf of themselves and all others, against the directors, to compel a specific performance of the original articles of subscription, they having reduced the annuities. One of the difficulties was, that all the persons interested were not before the court by name ; for every subscriber, who had not been a member long enough to become an annuitant, and the representatives of those who were dead, had an interest to state, their title in, or to recover the money. The court sustained the bill, upon the ground, that it virtually brought the parties before the court, as far as was practicable and conven- ient ; and, that it was better to go as far as possible towards jus- tice, than to deny it altogether.^ § 111. The like doctrine has been applied to cases of voluntary associations, which although not corporations, are yet recognized by law ; as, for example, that of Mutual Assurance Companies in England, where any number of persons are permitted to associate for the insurance of each other, all in effect participating as in a partnership. In such a case, it is evident, that if an occasion should arise to rpsort to equity for an account, as it would be, if not impossible, almost impracticable, to bring all persons interest- ed as parties before the court, the suit must be against some, being 1 Hichens v. Congreve, 4 Kuss. K. 562, 576. See also Crease v. Babcock, 10 Mete. 532. " Buckley v. Carter, cited 17 Ves. 11, 15 ; and in Cockburn v. Thompson, 16 Ves. 328, 329 ; Pearce v. Piper, 17 Ves. 1, embraced the same principle. 118 EQUITY PLEADINGS. [CH. IV, proprietors and accountable parties, and instituted by others on behalf of all.i § 112. Upon similar grounds, where an act of p£|irliament au- thorized a rate to be assessed by commissioners of a fund upon the inhabitants of a town, in aid of the fund, for charitable purposes, some of the inhabitants of the town were allowed to file a bill, on behalf of themselves and all the other inhabitants, against the commissioners of the fund, alleging a misapplication, and that the rate assessed by them was unnecessary, and asking, that the col- lection of it might be restrained ; for they all possessed a common interest, and it was impracticable to join them all in the suit.^ § 113. So, some of the shareholders of a canal have been per- mitted to bring a bill on behalf of themselves and all other share- holders, against the commissioners of a canal to set aside an agree- ment made by commissioners, contrary to the act of parliament authorizing the canal ; for under such circumstances, all the share- holders must be deemed to have a common interest, to compel obedience to the act of parliament. On that occasion the court said : " In order to enable a plaintiff to sue on behalf of himself ■and all others, who stand in the same relation with him to the subject of the suit, it must appear, that the relief sought by him is in its nature beneficial to all those whom he undertakes to rep- resent. The several persons, who advanced . moneys upon the credit of these tolls, must be taken to have advanced such moneys in the confidence, that the powers of management of the tolls, which were vested in the commissioners, would be only exercised according to the directions of the act, and a bill which has for its object the due exercise of those powers, and to avoid a breach of trust, must be intended in its nature beneficial to every sharehold- er." 3 "We shall presently see, how essential an ingredient this is in cases of numerousness of parties.* § 114. Upon the like grounds, a few of a large number of per- sons, (as, for example, parishioners,) have been permitted to in- stitute a suit on behalf of .themselves, and the rest, for rehef against acts done by commissioners, appointed under an act of ' Cooper, Eq. PI. 40; Cockburn v. Thompson, 16 Ves. 328, 329; Lloyd ». Loaring, 6 "Ves. 773 ; Benson v. Heathorn, 1 Younge & CoU. New E. 326. ' Attorney-General v. Heelis, 2 Sim. &lStu. 67. ' Gray v. Chaplin, 2 Sim. & Stu. 267. See Mandeville v. ffiggs, 2 Peters, R. 487. * Post, §130-134. §111-115.] PAETIES TO BILLS. 119 parliament, which were injurious to their common right, although a majority of the parishioners approved of those acts, and disap- proved of the suit. For, where a matter is necessarily injurious to the common right, the majority of the persons interested can neither excuse the wrong, nor deprive all other parties of their remedy by suit.^ § 114 a. So, pewholders and members of the congregation, for whose use a chapel was held in trust for religious service accord- ing to the doctrines and discipline of the Church of Scotland, have been permitted to maintain a suit on behalf of themselves and all others of the congregation, except the trustees, who were mem- bers, and were guilty of a breach of trust, to compel obedience to the trust, because the object of the suit was for the common bene- fit of all the members of the congregation, except the offending trustees ; and in no other way could redress for the injury com- plained of be obtained.^ § 115. So, where some of the partners in a very numerous com- pany, (five hundred and more,) filed a bill on behalf of them- selves, and all the other partners, to rescind a contract, entered into on behalf of the partnership, where it was manifest, from the circumstances of the case, that it would be for the benefit of all the partners that the contract should be rescinded, it was held by the court, upon an objection for want of parties, that the bill was maintainable. Upon that occasion it was said to be a rule of courts of equity, that where the parties are so mlmerous, as to render it inconvenient or impracticable that they should be par- ties to the record ; if they all have one common interest, a few may sue on behalf of themselves and all the other members of the company ; and that the case then in judgment fell within this pre- dicament.^ ' Bromley v. Smith, 1 Sim. R. 8. In Jones v. Garcia del Eio, 1 Turn. & Russ. 300, Lord Eldon said: — " The cases, where one party files a bill in behalf of himself and others, are cases, where others have a choice between that and nothing. But how can it be managed, where some parties are not dissatisfied, and are disposed to abide by the contract ? " These remarks seem to require qualification. = Milligan v. Mitchell, 3 Mylne & Craig, 72, 84; Post, § 143. See Attorney- General V. Munro, 2 De Gex & Smale, 122. ' Small V. Atwood, 1 Younge, R. 407, 408. The objection and the answer to it, with a review of the principal cases, were very elaborately considered by the bar and the court on this occasion. Lord Lyndhurst's judgment is very pointed 120 EQUITY PLEADINGS. [OH. IV. § 115 a. So, where a bill was filed by the trustees of a voluntary Assurance Company, the members of which were constantly fluc- tuating, for the purpose of procuring a poHcy underwritten by the trustees for the company to be cancelled on account of fraud, and the bill alleged, that the members of the company were very nu- merous, and their names and places of abode unknown, and could not be ascertained by the plaintiffs ; it was held that the members need not be made parties, but the trustees alone might maintain the bill, as the cancellation of the policy was for the common ben- efit of all.^ So, where three directors of an Assurance Company, who had signed a policy, filed a bill on behalf of themselves and all other shareholders in the company, praying, on allegations of fraud and misrepresentation, that it might be delivered up to be cancelled ; it was held, that the board of directors, who managed the affairs of the company, were not necessary parties.^ § 115 b. So, where a bill was filed by a member of a club, which had been dissolved, on behalf of himself and all other members at the time of the dissolution, seeking to recover from two of the members of the committee of the club, funds which they were alleged to have misappropriated ; the bill alleged, that a portion of the funds was payable to the plaintiff as trustee under a certain deed, and the rest to Messrs. H., the bankers of the club, and in their hands to be subject to the control of the committee of the club ; and the bill contained allegations, showing that the memr bers of the club were alone interested in the funds ; and the bill prayed an account, and that the first mentioned portion of the funds might be paid to the plaintiff, or otherwise, as the court should direct, and the rest to Messrs. H. or otherwise, as the court should direct ; it was held, on demurrer for want of parties, that none of the other members of the committee or club were neces- sary parties.^ and full on the subject. See also Lord Brougham's judgment in Walbum v. In- gleby, 1 Mylne & K. 76, 77; and the judgment of Lord Cottenham in Marev. Malachy, 1 Mylne & Craig, 559, and in Taylor v. Sahnon, 4 Mylne & Craig, 141, and in Wallworth v. Holt, 4 Mylne & Craig, 619, 635-640 ; Benson v. Heathom, 1 Younge & Coll. New R. 326 ; Post, § 115, 130-133. ' Fenn v. Craig, 3 Younge & Coll. 216. See Post, § 147-150, 216. ' Barker v. Walters, 8 Beavan, R. 92. ' On this occasion. Lord Langdale is reported to have said : " In the present case, if I correctly collect the sum of it, it is this : It is alleged that the two de- fendants, Hastings and Emly, have possessed themselves of property belonging to §115 a -116.] PARTIES TO BILLS. 121 § 116. Thus far we have been considering cases, where the bill is brought by some proprie'tors, as plaintiffs on behalf of all. But the like doctrine applies to cases, where there are many persons, defendants, belonging to a voluntary association, against whom the suit is brought. In such cases, it is sufficient, that such a number of the proprietors are brought before the court, as may this club, which I must consider as a partnership ; that one of the sums of money ■which they have is subject to a particular trust, — furniture money ; the other ia general assets of the partnership ; that they have possessed themselves of these sums of money, and refuse to account for them. The bill desires to recover these sums, not for the purpose of distribution for the purposes of this partnership by the court and by means of the bill, but for the purpose of bringing them within the control of the governing body of the partnership, in order that they may be applied under that control according to the rights of the parties. That seems to me to be the nature of the bill. How can that be done ? The plaintiff and all the others, except these two, must have an interest in having the money, which the demurrer admits to be in the possession of the defendants, brought within the control of the club, — that is a common interest. How this money, when it is brought within the control of the club, ought to be applied, is another question ; to say that we can recover it and place it within the control of the club, leaving it there subject to litigation, is saying what is asked to be done in this case, and is no more than was asked to be done in that other case of Walworth v. Holt. Then, if it is for the common bejiefit of all, except those who are here defendants, that this should be recovered, why should it not be done ? It is said this is a case of dissolution. Very true, it is a case of dissolution, and that shows that there ought to be a winding up and a final settlement. But how is it with a partner- ship after a dissolution, and before the afiairs of the partnership are wound up ? The natural connection between the partners is not dissolved with the dissolution of the partnership, because it must continue for the purpose of collecting the assets and winding up the partnership ; till the matter is closed there is a quasi partnership, — a mutual interest between the partners. One of the things re- quired for the winding up of the partnership is, that the assets should be collected. When it is desired to collect the assets, it may appear that one individual has got assets which he keeps in his possession adversely to all the rest, which it is the common interest to collect, and which being collected, ought to be applied regu- larly towards the winding up of the partnership. Now, then, in the present state of the record, the question is, whether the defendants are to answer ? I cannot determine at all at this time, whether it may not hereafter, in consequence of what may appear in the answer, be absolutely necessary to make these other persons parties ; but taking the bill as it now stands on the record, which is ad- mitted by the demurrer, I own that it does not appear to me necessary, or that I ought to allow the present demurrer. But, overruling the demurrer, I beg to have it clearly understood, that it may appear in the answer which these gentle- men put in, that it is quite necessary not only to make the persons now pointed out, but other persons, parties, for they may object by answer after this demurrer is overruled." Kichardson v. Hastings, 7 Beavan, K. 323 ; II Beavan, 17. EQ. FL. II 122 EQUITY PLEADINGS. [CH. IV. fairly represent the interests of all, where those interests are of a commion character and responsibility.^* Thus, for example, where . a committee of a voluntary club or association entered into agree- ments and incurred expenses on account of the club, it was held, on a bill brought by a creditor against the committee, that it was not necessary to make the other members of the club parties to the suit, on account of the members being numerous, as well as unknown.^ In such a case, it seems proper, if indeed, it be not indispensable, to charge in the bill, that the members are numer- ous, and many unknown.^ § 117. Upon similar grounds, where a joint stock company, cre- ated under an act of parliament, were sued for a specific perform- ance of an agreement for a lease, entered into by the vendors, of certain real estate, which was sold to them pendente lite, and the treasurer and directors only were made parties, the court over- ruled the objection, that all the proprietors were not made parties. On that occasion the court, after examining the leading authori- ties, added the following expressive language : " There is a cur- rent of authority adopting more or less a general principle of ex- ception, by which the rule, that all persons interested must be parties, yields, when justice requires it* in the instance, either of plaintiffs, or of defendants. The rigid enforcement of the rule would lead to perpetual abatement. This, therefore, cannot be re- garded as a new point, or as creating a difficulty. It is quite clear, that the present suit has sufficient parties, and that the de- fendants may be considered as representing the company."* ' Cooper, Eq. PL 40 ; Adair v. New River Co. 11 Ves. 444. ^ CuUen V. Duke of Queensbury, 1 Bro. Ch. E. 101; Cooper, Eq. PI. 40; Cousins V. Smith, 13 Ves. 544. ' In Cullen v. Duke of Queensbury, 1 Bro. Ch. R. 101, note (2), the biU charged, that the plaintiff "could not discover the several members of the club, and procure a remedy against them, as they were numerous, and many of them totally unknown to him." See also Adair v. New River Co. 11 Ves. 429. In Cousins V. Smith, 13 Ves. 544, Lord Chancellor Eldon said, that "Where a legal body acts by committees, it is enough to consider the contract made with those, who think proper to undertake, looking to the body for which they un- dertake for indemnity; and the plaintiffs at law could not be nonsuited, nor could they defend an action against them on that ground." ' Meux V. Maltby, 2 Swanst. R. 284. The master of the roUs cited and com- mented upon aU the leading authorities on this occasion, as did Lord Eldon in Cockburn V. Thompson, 16 Ves. 328, 829. It was said by the vice-chancellor, m Lancaster v. Thompson, 5 Madd. R. 12, 13, that where it is attempted to pro- §116-120.] PARTIES TO BILLS. 123 § 118. So, where the city of London had leased certain water pipes and privileges to a lessee for a specified rent ; and the lessee had afterwards assigned it ; and the assignees had subdivided the. interest into nine hundred shares ; and a bill was brought to en- force the payment of the rent in arrear against the assignees and some of the shareholders ; it was held, that all the shareholders need not be made parties, since it was obviously impracticable to bring them all before the court.^ So, where upon the creation of a water company, the crown had received a moiety of the interest, and afterwards that moiety was subdivided into a large number of shares, (over one hundred;) on a suit. brought by an annuitant against the company, it was insisted, that all the shareholders ought to have been made parties. But the court overruled the objection, saying, that it was not necessary, that all the proprietors of the king's share, as well as of the company's share, (whose share had also been subdivided,) should be made parties ; for those parties were represented before the court ; and no objection could arise on this account ; for it was impracticable to comply with the general rule.^ § 119. Upon similar grounds, where the stockholders of an in- corporated bank, on its dissolution, had divided the capital stock among themselves, leaving a deficiency to pay their outstanding bank bills, it was held, that a bill holder might maintain a suit against some of the stockholders to subject the funds in their hands to contribution pro rata to pay the bills in his hands, with- out making all the other stockholders parties.^ So where ap- pointees are numerous, it has been held, that they may be repre- sented as defendants to a suit, by some as on behalf of the rest.* § 120. The third class of cases already alluded to as constitut- ing an exception to the general rule, as to parties, is, where the parties are very numerous, and although they have, or may have, separate and distinct interests, yet it is impracticable to bring them all before the court, and, on this account, they are dispensed with.^ ceed against two or three individuals, as representing a numerous class, it must be alleged in the bill, that the suit is brought against them in that character. 1 City of London v. Eichmond, 2 Vern. 421 ; S. C. Free. Ch. 156 ; S. C. 1 Bro. Pari. K. by Tomlins, 516. See also Vernon v. Blackerly, 2 Atk. 144, 145. ^ Adair v. New River Company, 11 Ves. 443, 444. ' Wood V. Dummer, 3 Mason, R. 315-319, and cases there cited. * Milbank v. Collier, 1 Collyer, 237. ^ 1 Mont. Eq. PI. 57, 58. In Wilson v. Stanhope, 2 Collyer, R. 029, the bill 124 EQUITY PLEADINGS. [CH. IV. In tins class of cases, there is usually a privity of interest between the parties ; but such a privity is not the foundation of the excep- tion. On the contrary, it is sustained in some ca^es, where no such privity exists.^ However, in all of them there always exists a common interest, or a common right, which the bill seeks to es- tablish and enforce, or a general claim or privilege, which it seeks to establish, or to narrow, or take away. It is obvious, that un- der such circumstances, the interests of persons, not actual par- ties to the suit, may be in some measure affected by the decree ; but the suit is nevertheless permitted to proceed without them, in order *to prevent a total failure of justice.^ Indeed, in most, if not in all, cases of this sort, the decree obtained upon such a bill will ordinarily be held binding upon all other persons standing in the same predicament, the court taking care that sufficient persons are before it, honestly, fairly, and fully, to ascertain and try the gen- eral right in contest.^ § 121. Thus, for example, bills have been permitted to be brought by the lord of a manor against some of the tenants, or vice versa, by some of the tenants on behalf of themselves and all the other tenants, against the lord, to establish some right ; such, for instance, as a bill with regard so suit to a mill, or a right of common,* or a right to cut turf.^ In like manner, a bill has been which was brought by the plaintiff on behalf of himself and all other shareholders charged that the other shareholders were unknown to the plaintiff, and if known, would be too numerous to be made parties to the suit. A demurrer for the want of parties was overruled. Post, § 285. ' Mayor of York v. Pilkinton, 1 Atk. 282; City of London v. Perkins, 4 Bro. Pari. Cas. 158 ;. S. C. 3 Bro. Pari, by Tomlins, 602. ^ Mitf Eq. PI. by Jeremy, 170; Cooper, Eq. Pi. 40, 41 ; West «. Eandall, 2 Mason, R. 193-195; Cockburn v. Thompson, 16 Ves. 328; Long D. Younge, 2 Sim. K. 369 ; Mayor of York v. Pilkinton, 1 Atk. 282 ; Post, § 285. = Adair v. New River Company, 11 Ves. 429, 444 ; Meux v. Maltby, 2 Swanst. 283, 284 ; Weale v. West Midd. Water Works Co. 1 Jack. & Walk. 369 ; Duke of Norfolk V. Myers, 4 Madd. 113, 114; Baker v. Rogers, Sel. Cas. in Ch. 74; Mann w. Butler, 2 Barb. Ch. R. 368. * Mitf Eq. PI. by Jeremy, 170; Cooper, Eq. PI. 41 ; Conyers v. Lord Aber- gavenny, 1 Atk. 285; Brown v. Vermuden, 1 Ch. Cas. 272; Cockburn v. Thompson, 16 Ves. 328; West u. Randall, 2 Mason, R. 195; Meux u. Maltby, 2 Swanst. 283. " In such cases the bill should be on behajf of all the tenants ; for, if it be a common right claimed by all, and interrupted, or denied to all, a bill by a single tenant would not be proper. Baker v. Rogers, Sel. Cas. Ch. 74 ; see, to the same point, Lancaster v. Thompson, 5 Madd. R. 13. §120-122.] PARTIES TO BILLS. 125 permitted to be brought by the parson of a parish against some of the parishioners, to establish a general right to tithes, and the oth- ers have been bound by the decree made in the suit;^ and con- versely, a bill has been permitted to be brought by some of the parishioners, on behalf of all, against the parson, to establish a parochial modus.^ So, where all the inhabitants of a parish had a right of common under a trust, a suit has been permitted to be brought by one, on behalf of himself and all the other inhabitants.^ In all these cases, although there were, or might be, distinct inter- ests in the different, tenants or parishioners ; yet there was a gen- eral right and privity between them, as to the claim, asserted in the bill ; and, therefore, the suit was held to be well instituted.* § 122. Upon similar grounds, although, by the general rule all the persons, whose estates are affected with a rent charge, should be made parties to a suit brought to enforce it ; yet, if some of them are unknown, or if they are very numerous, so that the rule ' Brown v. Vermuden, 1 Ch. Cas. 272 ; Mayor of York v. Pilkinton, 1 Atk. 282. ' Mitf. Eq. PI. by Jeremy, 170; Rudge v. Hopkins, 2 Eq. Abridg. 170; Poore V. Clarke, 2 Atk. 515 ; Cooper, Eq. PI. 41 ; Cockburn v. Thompson, 16 Ves. 328 West u. Randall, 2 Mason, K. 195; Mayor of York v. Pilkinton, 1 Atk. 282-284 Meux V. Maltby, 2 Swanst. R. 284 ; Chaytor v. Trinity College, 3 Anst. 841 Hardcastle v. Smitbson, 3 Atk. 247. ' Anon. 1 Ch. Cas. 269 ; Mitf. Eq. PI. by Jeremy, 168, 169. ' Mayor of York v. Pilkinton, 1 Atk. 282 - 284. The true distinction is between the cases, where the parties have a common right or general interest in the sub- ject of controversy, and cases where they have distinct and several interests only, and no common right, or claim. See Jones v. Garcia del Rio, 1 Turn. & Russ. 299-301. In Long v. Younge, 2 Sim. R. 369, the vice-chancellor used the fol- lowing language : — " Now the rules with respect to parties are exceedingly plain and intelligible to those who will consider the principle on which they are founded. The general rule is, that all parties interested in the subject of the suit, shall be parties to the record. Then there are certain exceptions. All those exceptions, as far as this particular point is concerned, may be divided into two parts. One exception is, where several persons having distinct rights against a common fund, or against one individual, are allowed, a few of them, on behalf of themselves and the rest, to file a bill for the purpose of prosecuting their mutual rights against the common fund, or the individual liable to their demand. The other exception is, where a person may have a right against several individuals who are liable to common obligations. In that case, a bill is allowed to be filed by a single plain- tiff against some ; but not all of those persons who are bound to make good the plaintiff's demand. This is the general division of the exceptions to the general rule.'' See also Hichens v. Congreve, 4 Russ. R. 562, 576, 577 ; Crease v. Bab- cock, 10 Mete. 532. 11* 126 EQUITY PLEADINGS. [CH. IV. becomes impracticable, or exceedingly inconvenient, the court will dispense with it ;^ and the parties before the court will be left to seek contribution from the other persons in a new bill for contri- bution.^ Here, also, there is a privity between all the terre-ten- ants as to the rent charge, although their estates are, or may be, otherwise, several and distinct. § 123. So, where there is one general right to demand service from the individuals of a large district, as for example, a right to demand that all the individuals of a large district should grind all the corn for their subsistence at a particular mill ; in such a case, the mill-owner may sue a few in equity, to establish his right against all. But so many must be joined, as will fairly and hon- estly try the legal right.^ § 124. But bills have also been allowed to be brought, (called bills of peace,) where there has been a general right claimed by tlie plaintiff, and yet no privity existed between the plaintiff and the defendants, and no general right on the part of the defendajits, and where many more were, or might be concerned, than those brought before the court.* In such cases, however, the right claimed by the plaintiff affected the defendants and all others in 1 Attorney-General v. Wyburgh, 1 P. Will. 599 ; S. C. 2 Eq. Abridg. 167; Attorney-General v. Jackson, 11 Ves. 367 ; Attorney-General v. Shelly, 1 Salk. K. 162 ; Cooper, Eq. PI. 41. ^ Attorney-General v. New Kiver Co. 11 Ves. 444, 445. ' Lord Eldon alluded to this class of cases in Adair v. The New River Com- pany, 11 Ves. 444, and used the following language : — " There is one class of cases very important upon this subject, namely, where & person, having at law a general right to demand service from the individuals of a large district, to his miU for instance, may sue thus in equity. His demand is upon every individual, not to grind corn for their own subsistence, except at his milL To bring actions against every individual for subtracting that service, is regarded as perfectly impracticable. Therefore a bill is filed to establish that right; and it is not necessary to bring all the individuals. Why ? Not that it is inexpedient, but that it is impracticable, to bring them all. The court, therefore, has required so many, that it can be justly said, they will fairly and honestly try the legal right between themselves, all other persons interested, and the plaintiff; and, when the legal right is so established at law, the remedy in equity is very simple; merely a bill, stating that the right has been established in such a proceeding ; and upon that ground, a court of equity will give the plaintiff relief against the defendants in the second suit, only represented by those in the first." See also Weale v. Middlesex Water Works Company, 1 Jac. & Walk. •S69. * Mitf. Eq. PI. by Jeremy, 144, 146 ; Tenham v. Herbert, 2 Atk. 484 ; West V. Randall, 2 Mason, R. 194, 195. §122-125.] PARTIES TO BILLS. 127 the same way, and they had, or might have, a common interest to resist it. Thus, for example, the city of London brought a bill to establish its right to a certain duty, and the bill was against a few persons only, who dealt in those things, of which the duty was claimed ; and the bill was maintained by the court, notwithstand- ing the objection, that all the subjects of the realm might be con- cerned in the right. In such a case, a great number of actions might otherwise be brought, and almost interminable litigation would ensue ; and, therefore, the court suffered the bill to pro- ceed, although the defendants might make distinct defences, and although there was no privity between them and the city.^ § 125. So, where a bill was brought to quiet the plaintiffs' right of fishery in the river Ouse, of which the plaintiffs claimed the sole fishery for a large tract against the defendants, who (as the bill suggested) claimed several rights, either as lords of manors, or as occupiers of the adjacent lands, and also for a discovery and account of the fish, which they had taken ; an objection was taken, that there was no privity between the defendants, but that the bill treated them as distinct trespassers, and that there was no general right to be established against them. The court, however, sus- tained the bill ; for there was a general right of a sole fishery as- serted by the plaintiffs against all the defendants ; and the defend- ants were not precluded from setting up distinct exemptions and distinct rights in their defence.^ The benefit to be obtained by such a bill, under such circumstances, is, that they may furnish a ground to quiet the general right, not only as to the persons before the court, but as to all others in the same predicament.^ ' City of London v. Perkins, 4 Bro. Pari. Cas. 158, (Tomlin's Edit. 3 Brown, P. C. 602;) Mayor of York v. Pilkington, 1 Atk. 283, 284. " Mayor of York v. Pilkington, 1 Atk. 282, 284 ; Tenham v. Herbert, 2 Atk. 484 ; Mitf. Eq. PL by Jeremy, 145, 146. ' Lord Hardwieke (in 1 Atk. K. 284) on that occasion said : " Here are two causes of demurrer, one assigned originally, and one now at tbe bar, that this is not a proper bill, as it claims a sole right of fishery against five lords of manors, because they ought to be considered as distinct trespassers, and that there is no general right that can be established against them, nor any privity between the plaintiffs and them. In this respect it does differ from cases that have been cited, of lords and tenants, parsons and parishioners, where there is one general right, and a privity between the parties. But there are cases, where bills of peace have been brought, though there has been a general right claimed by the plaintiff", and yet no privity between the plaintiffs and defendants, nor any general right on the part of the defendants, and where many more might be 128 EQUITY PLEADINGS. [CH. IV. [* § 125 a. And as a plaintiff, who has a right to sue, on behalf of himself and others of a numerous society of which he is a mem- ber, has the right to institute proceedings in a court of equity, on behalf of himself and others similarly interested, though no other may wish to sue, so on the other hand, although there may be a hundred who are entitled to sue and may desire to do so, still if they sue by a plaintiff who is personally precluded from suing, the suit cannot proceed, since the others are not, strictly, parties.^ § 125 h. It was held in a recent case, that where a court, or cul de sac, of dwelling-houses in a City was built, upon the mutual concerned than those brought before the court. Such are bills for duties, as in the case of the City of London v. Perkins, in the House of Lords, where the city of London brought only a few persons before the court, who dealt in those things whereof the duty was claimed, to establish a right to it ; and yet all the king's subjects may be concerned in this right. But because a great number of actions may be brought, the court suffers such bills, though the defendants might make distinct defences, and though there was no privity between them and the city. I think therefore this bill is proper ; and the more so, because it appears there are no other persons, but the defendants, who set up any claim against the plaintiffs ; and it is no objection, that they have separate defences. But the question is, whethgr the plaintiffs have a general right to the sole fish- ery, which extends to all the defendants ; for notwithstanding the general right is tried and established, the defendants may take advantage of their several ex- emptions, or distinct rights." Lord Eldon, in Weale v. Middlesex Water Works Company, 1 Jac. & Walk. 369, alluding to this case, said : " That [case] of the Mayor and Corporation of York and Pilkingtou was this. They conceived themselves to be fentitled to an exclusive fishery in the river Ouse. There were many individuals who con- ceived they had certain rights in the same river ; and the corporation filed their bill to establish their exclusive right to it. It was at first considered, by no less a man than Lord Hardwicke, that the bill would not do. But, on further con- sideration, he was of opinion that it was a proper bill to establish the right ; for where the plaintiffs stated themselves to have the exclusive right, it signified nothing what particular rights might be set up against them ; because, if they prevailed, the rights of no other persons could stand. And it has been long set- tled, that if any person has a common right against a great many of the king's subjects, inasmuch as he cannot contend with all the king's subjects, a court of equity will permit him to file a bill against some of them ; taking care to bring so many persons before the court that their interests shall be such as to lead to a fair and honest support of the public interest ; — and when a decree has been obtained, then, with respect to the individuals whose interest is so fully and honestly established, the court, on the footing of the former decree, will carry the benefit of it into execution, against other individuals, who were not parties." [* ' Burt V. The British National Life Assurance Association, 4 De G. & J. 158. §125 a- 127.] PARTIES TO BILLS. 129 covenants of all the proprietors, that none of the buildings so erect- ed should ever be put to any other use than that of dwellings : and one or more of the proprietors were putting their houses to other uses, in violation of the covenants or conditions of the tenure, that all who desired to enforce the obligation thus being violated, might join in the bill for that purpose, or the same might be brought in the name of one or more, and of all the others concur- ring in and paying their several proportions of the expense of the suit ; and that it was proper to set forth the proportion of the pro- prietors thus agreeing to maintain the suit, that the court might be informed how far those attempting to apply one, or more, of the buildings of the block to uses, in violation of the covenants, were acting in opposition to the wishes, and interests, of the others.^] § 126. In all these classes of cases, it is apparent, that all the parties stand, or are supposed to stand, in the same situation, and have one common right, or one common interest, the operation and protection of which will be for the common benefit of all, and cannot be to the injury of any. It is under such circumstances, and with such objects, that the bill is permitted to be filed by a few, on behalf of themselves and all others, or against a few, and yet to bind the rights and interests of the others.^ But, if tlie bill is filed by the plaintiffs, on behalf of themselves only, and not on behalf of all the other persons in interest, the bill would be un- maintainable, and be held bad on demurrer.^ § 127. The nature of the decree, also, which is asked and given, may sometimes furnish a ground to dispense with parties, where they are very numerous;* as, for example, where the bill seeks only for a contribution pro raid- towards a common charge, the extent of the liability being clearly ascertainable, and admitting, ' Parker v. Nightingale, 6 Allen, 341.] " Hichens v. Congreve, 4 Euss. R. 562, 576, 577; Long v. Younge, 2 Sim. E. 369 ; Crease v. Babcock, 10 Mete. 532 ; Ante, § 107 - 110 ; Post, § 132, 133, note, 134 a. The propriety of the rule of dispensing with parties interested, where they are numerous and the suit is for an object common to them all, and bringing the bill in behalf of all, is fully recognized in Taylor v. Salmon, 4 Mylne & Craig, 142 ; Benson v. Heathorn, 1 Younge & Coll. New E. 326. ' Douglas V. Horsfall, 2 Sim. & Stu. R. 184. See Mandeville v. Eiggs, 2 Peters, E. 487; Ante, § 99. * Mitf. Eq. PI. by Jeremy, 179, 180. See Wigram on Discovery, 76, 1st edit. ; Id. p. 169, 170, 2d edit. ; Howes v. Wadham, Eidg. Cas. Hkd. 199, 200 ; Calvert on Parties, ch. 1, § 1, p. 3-12; Post, § 128, 129, 139, 214, 228. 130 EQUITY PLEADINGS. [CH. IV, • and requiring a several apportionment. Thus, where a man pro- posed to raise a bank, and to procure an act of parliament, to es- tablish and settle it ; about fifty others joined with him, and were at equal expenses. The project being likely to take effect, two hundred and fifty more subscribed to raise a fund ; but in affect- ing the project about .£6000 were, lost, and so it dropped. Then the persons, who had paid the £6000 out of pocket, exhibited their bill against sixteen of the two hundred and fifty subscribers, to bear their proportions of the loss. It was objected, that the bill ought to abate for want of parties. But the objection was overruled; and it was held, that, as the plaintiffs only prayed, that the defendants might bear their proportion of the loss, which would appear before the master, as well as if all the two hundred and fifty subscribers were before the court, there could be no preju- dice to the defendants ; and if there should happen to be any dis- proportion in the accounts, the party aggrieved might have his remedy by bill.^ § 128. The same doctrine was acted upon in the case of an in- corporated bank, where the stockholders had divided the capital stock upon the eve of the dissolution of the corporation under its charter, leaving funds for the payment of the outstanding bank bills and other debts, which proved inadequate to the discharge of them. Some holders of the bills of the bank sued a part only of the stockholders, (the capital stock being divided into two thou- sand shares,) to recover from them the amount of the bank bills ; and upon the objection, that all the stockholders were not made parties, the court, admitting, that it was impossible that they could all be made parties, sustained the bill, and decreed a pro raid contribution by the defendants towards the payment of the bank bills, in the proportion that the stock held by the defendants bore to the whole number of stockholders.^ § i29. It is upon similar grounds, that the decision is to be ex- ' Anon. 2 Eq. Abridg. 166, pi. 7. ' Wood V. Dummer, &c., 3 Mason, 308, 317-319, 321, 322. In this ca^e it did not appear that the other stockholders were out of the jurisdiction of the court, or were insolvent ; nor did it appear what other bills were outstanding. The court, referring to these circumstances, said that it would not take more than the propor- tion from the defendants, because it might thereby deprive other bill holders of the funds, out of which alone they could obtain payment. The bill was not so framed as to be on behalf of all other bill holders. Ante, § 117. See also Selyard v. Ha^ ris's Ex'rs, 1 Eq. Abridg. 74. Post, § 214 and note. § 127 - 130.] PARTIES TO BILLS. 131 plained in the case of a mine owned by a partnership, engaged in a mining adventure, which mine had been sold by some of the partners, (who were the legal owners of the mine, and joint ad- venturers,) with the consent of all but one partner, to a joint stock company, consisting of numerous proprietors and shares, for which payment had been made to them, partly in money, and partly in shares of the joint company stock. The partner, who had not consented to the sale, and who claimed a definite interest in the mine and mining adventure, brought a bill against the part- ners, who had sold the mine, praying that they might, at his elec- tion, either account to the plaintiff for his proportion of the profits derived from the sale, or that out of the shares of the stock of the joint company in their hands held on their own account they might transfer to him so many shares as would be equivalent to his interest. A demurrer was put i^ for the want of proper par- ties, the other partners and the proprietors of the joint stock com- pany not having been made parties. But the court held the ob- jection invalid ; for the proprietors at large had no interest in the controversy ; and it appeared by the bill, that the other partners had been settled with ; and consequently no other persons, but the plaintiff and the defendants, had any interest in the suit, as the sale and settlement were not sought to be disturbed by it,^ and the plaintiff sought relief only against the funds or shares belong- ing to the defendants and in their hands, to the extent of his claim and title and interest in the concern. § 129 a. Another case may illustrate the same doctrine. Sup- pose the ordinary case of a joint stock company, where the shares are transferable by delivery of the script receipt, and the holder, (who has, therefore, a right to sell them,) and afterwards should refuse to complete the sale, a bill might well be brought by the purchaser against the seller to compel a specific performance of the contract of sale, without making the other shareholders par- ties ; for they have no interest in the object of the bill or in the controversey, the simple question being, who, as between buyer and seller, is entitled to the particular shares sold.^ § 130. But although the numerousness of parties, as well as ^ Mare v. Malachy, 1 Mylne & Craig. 559. " See per Lord Cottenham in Mare v. Malachy, 1 Mylne & Craig. 572, 573 ; Turner v. Hill, 11 Sim. K. 1, 14; Turner u. Borlase, 11 Sim. K. 17, 20; Post, § 135, 135 6. 132 EQUITY PLEADINGS. [CH. IV. their being unknown, constitutes, or may constitute, a good ground for dispensing with their being made actual parties to a suit in the classes or cases before mentioned; yet as has been already stated,^ this exception has not been allowed to operate, without such qualifications, where the decree must directly affect the in- terests of the persons not before the court, and they have a right and an interest to be heard before the decree is made.^ A few- illustrations of these qualiiications upon the generality of this ex- ception ;nay here be properly suggested from adjudged cases. § 131. Thus, for example, where a suit was brought by a few- members of a voluntary society, called the Benevolent Union Soci- ety, consisting of sixty-one members, on behalf of themselves and all other members, for an account and injunction against the six defendants, who were trustees and members of the society, in- trusted with the stock of the society, who had, in breach of the articles of the society, sold out a part of it, and proceeded to dis- solve the society; and it appeared, that by the articles it was a material part of the contract, that the society should never be dis- solved, so long as seven members should support the same ; and it further appeared, that all the other members (forty-seven in number,) except the plaintiffs, had received their shares, and the plaintiffs' shares were in court. It was held, that all the other for- ty-seven members ought to have been made parties, as they had a direct interest in the decree to be made upon the bill, seeking, as it did a replacement of the stock, and a continuance of the soci- ety.^ In such a case it is clear, that .the real question was, whether there could be a dissolution of the partnership and a division of the funds, or not, consistently with the articles ; and in that ques- tion all the members had an equal interest to be heard, and to be protected.* § 131 a. So, where one of thirty-eight proprietors of a newspa- per was appointed bookseller, and received the moneys of the con- cern, it was held, on a bill brought by twelve of the proprietors on behalf of themselves and all the other proprietors, for an account, that the remaining twenty-five proprietors ought to be made par- ' Ante, § 77, 94, 120, 126. = Ante, § 84, 94; Post, § 132-134. ' Beaumont v. Meredith, 3 Ves. & Beam. 180; Evans v. Stokes, 1 Keen, K. 29 ; Mocata v. Ingilby, 14 Law Journ. 145. See Richardson v. Hastings, 7 Bea- van, 323; 11 Beavan, 17. * See ako Wheeler v. Van Wart, 9 Sim. 2, 193. § 130 - 132.] PARTIES TO BILLS. 133 ties by name, since it did not appear that the suit was necessarily for their benefit.^ § 132. Upon similar grounds it has been held, that a sharehold- er in a joint stock company cannot file a bill on behalf of himself and all other shareholders for a dissolution of the concern ; but they must all be made actual parties to the suit, however numer- ous, and however impracticable it may be under such circumstan- ces to proceed to a decree ; upon the ground that it is by no means a general principle in equity, that all cases within the same mischief, as to parties, are to be held relievable simply on account of their numerousness, if the parties not before the court have a substantial interest in the very question of right, on which the de- cree must hinge.^ But this doctrine seems open to great doubt ^ Bainbridge v. Burton, 2 Beavan, E. 539, 540. See also Evans v. Stokes, 1 Keen, E. 29. ' See Van Sandau v. Moore, 1 Euss. E. 441, 465 ; Blain v. Agar, 1 Sim. E. 37 ; S. C. 2 Sim. 289 ; Long v. Younge, 2 Sim. 369 ; Wheeler v. Van Wart, 9 Sim. E. 193. See also Small v. Atwood, 1 Younge, E. 407, 458, 459; Evans v. Stokes, 1 Keen, E. 24; Ante, § 94, 107, 108; Male v. Malachy, 1 Mylne & Craig, 559 ; Taylor v. Salmon, 4 Mylne & Craig, 141 ; Abraham v. Hannay, 13 Simons, 581 ; Harvey v. Bignold^ 8 Beavan, E. 343. There is not a little diffi- culty in this whole doctrine. Why, in cases of this sort, confessedly otherwise irremediable, a bill might not be maintained by a few in behalf of all the com- pany having the same interest, who do not choose to come in and object, does not seem so clear upon general reasoning as some learned judges seem to have thought it to be. Admitting that all have a common interest to be affected by the decree, still, if they do not choose to appear and resist the decree, it is no unfair inference that they are content to abide by it. At all events, if the plaintiffs do make out a clear case for a dissolution, it seems unjust to deprive them of all aid, even though the decree may affect the interests of others. In what respect does such a case differ in substance from that of a common right claimed by or against all parish- ioners, or commoners, or creditors ? If the court should maintain the jurisdiction in a case of this sort, it might provide for 3,11 absent and opposing interests by re- ferring the case to a master, and allowing them to come in and object before him to further proceedings. The authorities do not, however, appear to give any countenance to this suggestion. The arguments and the opinion of the court in Long V. Younge, 2 Sim. E. 369, present the doctrine in a strong light. It appears to me that some passages in the judgment of Lord Lyndhurst, in Small V. Atwood, 1 Younge, E. 457, 458, show the difficulty of limiting the ex- ception to cases of a common interest and benefit, and a lurking doubt of the propriety of these decisions. His language was : " It is the rule of a court of equity, that all persons who are interested in a question which is litigated in a court of equity, must, either in the shape of plaintiffs or defendants, be brought before the court. If that rule were to apply in its strictness to a case of this BQ. PL. 12 134 EQUITY PLEADINGS. [CH. IV. and difficulty ; and indeed it tends to make a rule, designed to attain the purposes of general justice, the instrument of an utter denial of all justice, where the interests of all parties are not, or may not be exactly coincident. It has been accordingly greatly qualified, if not positively overturned, in the more recent au. thorities.-' description, this consequence would follow, that justice, in such a case as the present, would be unattainable in this court ; because it is perfectly certain that if it were necessary to put upon the record the names of all the persons who are members of this partnership, or were members at the time when this bill was filed, (for they then amounted to very nearly six hundred,) it would be utterly impossible that the suit could ever come to its termination from the necessary abatements, which would, from time to time, take place from death and other causes. The argument or observation, I admit, is not conclusive. I admit that the general rule is, that all persons who are interested in the question must be parties to a suit instituted in a court of equity, where that question is the ob- ject of the suit. But there are certain exceptions to that rule, which were es- tablished at a very early period, for the purpose of preventing that failure of justice to which I have referred." See also the remarks of Lord Chancellor Brougham, in Walburn v. Ingleby, 1 Mylne & K. 76, 77, and Hichens v. Con- greve, 4 Russ. E. 574-577, and the remarks of Mr. Baron Alderson, in Fennv. Craig, 3 Younge & Coll. 223, 234, and of Lord Cottenham, in Taylor v. Salmon, 4 Mylne & Craig, 141, and in Mare v. Malachy, 1 Mylne & Craig, 559, and in Wallworth v. Holt, 4 Mylne & Craig, 619, 635, Ante, § 76 a, 76 c, 132, which obviously lean in favor of dispensing with parties in cases of this sort, where there would otherwise be an irremediable injustice. Ante, § 107-115, 126; Post, § 135 a. ' Ibid. Mare v. Malachy, 1 Mylne & Craig, 559 ; Taylor v. Salmon, 4 Mylne & Craig, K. 134. In this case. Lord Cottenham said: — "I have before taken occasion to observe, that I thought it the duty of this court to adapt its practice and course of proceeding as far as possible to the existing state of society, and to apply its jurisdiction to all those new cases which, from the progress daily making in the affairs of men, must continually arise, and not from too strict an adherence to forms and rules established under very different circumstances, de- ■ cline to adminster justice, and to enforce rights for which there is no other remedy." In Walworth v. Holt, 4 Mylne & Craig, 619, 634-640, Lord Cotten- ham reviewed the whole doctrine and authorities, and said : " The case stated by the bill, which is filed by the plaintiffs on behalf of themselves and all other the shareholders and partners of the banking company called the Imperial Bank of England, except those who are made defendants, is shortly this ; that they are shareholders, and have paid all the calls made, which amount to £15 per share ; that the business of the company has been suspended since 1839, but that it has not been dissolved ; that large debts are due by the company, for which they and the other shareholders are liable, and that there are considerable assets in the hands of the directors and trustees, though not equal to the debts; that all the directors, except one, have become bankrupts, and have thereby, by their § 132, 133.] PARTIES TO BILLS. 135 § 133. So, it has been thought, that, where there is an assign- ment by a trust deed, made by a debtor for the benefit of such regulations, become incapable of acting, and that the trustees refuse to act ; and that the other defendants are the only shareholders who have not paid their calls ; and it therefore prays for the assistance of this court to relieve them from this difficulty, by causing the assets of the company to be realized, and the debts to be paid ; and that for this purpose a receiver may be appointed, and author- ized to sue for calls unpaid, and other debts due to the company, in the name of the registered officer under the 7 Geo. IV. c. 46, who is one of the defendants. When it is said that the court cannot give relief of this limited kind, it is, I pre- sume, meant, that the bill ought to have prayed a dissolution, and a final winding up of the affairs of the company. How far this court will interfere between partners, except in cases of dissolution, has been the subject of much difference of opinion, upon which it is not my purpose to say anything beyond what is necessary for the decision of this case ; but there are strong authorities for hold- ing that to a bill praying a dissolution, all the partners must be parties ; and this bill alleges that they are so numerous as to make that impossible. The result, therefore, of these two rules would be, — the one binding the court to withhold its jurisdiction except upon bills praying a dissolution, and the other requiring that all the partners should be parties to a bill praying it, — that the door of this court would be shut in all cases in which the partners or shareholders are too numerous to be made parties, which in the present state of the transactions of mankind, would be an absolute denial of justice to a large portion of the sub- jects of the realm, in some of the most important of their affairs. This result is quite sufficient to show that such cannot be the law ; for, as I have said upon other occasions, I think it the duty of this court to adapt its practice and course of proceeding to the existing state of society, and not by too strict an adherence to forms and rules established under different circumstances, to decline to ad- minister justice, and to enforce rights for which there is no other remedy. This has always been the principle of this court, though not at all times sufficiently attended to. It is the ground upon which the court has, in many cases, dis- pensed with the presence of parties who would, according to the general prac- tice, have been necessary parties. In Cockburn v. Thompson, Lord Eldon, says: 'A general rule, established for the convenient administration of justice, must not be adhered to in cases, in which, consistently with practical conve- nience, it is incapable of application ' ; and again, ' The difficulty must be over- come upon this principle, that it is better to go as far as possible towards justice than to deny it altogether.' If, therefore, it were necessary to go much further than it is, in opposition to some highly sanctioned opinions, in order to open the door of justice in this court to those who cannot obtain it elsewhere, I should not shrink from the responsibility of doing so ; but, in this particular case, not- withstanding the opinions to which I have referred, it will be found that there Is much more of authority in support of the equity claimed by this bill, than there is against it. It is true that the bill does not pray for a dissolution, and that It states the company to be still subsisting ; but it does not pray for an account of partnership dealings and transactions, for the purpose of obtaining the share of profits due to the plaintiffs, which seems to be the case contemplated in the 136 EQUITY PLEADINGS. [CH. IV. creditors, as should execute the assignment, if any incumbrancer, (not one of such creditors,) should seek to enforce against the opinions to which I have referred ; but its object is to have the common assets realized and applied to their legitimate purpose, in order that the plaintiffs may be relieved from the responsibility to which they are exposed, and which is con- trary to the provisions of their common contract, and to every principle of jus- tice. But whether the interest of the plaintiffs in right of which they sue, arises from such responsibility or from any other cause, cannot be material ; the question being, Whether some partners, having an interest in the application of the part- nership property, are entitled, on behalf of themselves and the other partners, except the defendants, to sue such remaining partners in this court for that purpose, pending the subsistence of the partnership ; and if it shall appear that such a suit may be maintained by some partners on behalf of themselves and others similarly circumstanced against other persons, whether trustees and agents for the company, or strangers being possessed of property of the company, it may be asked why the same right of suit should not exist when the party in pos- session of such property happens also to be a partner or shareholder ? In Channcey v. May, the defendants were partners. In the Widow's Case, before Lord Thurlow, cited by Lord Eldon, the bill was on behalf of the plaintiffs and all others in the same interest, and sought to provide funds for a subsisting establishment. In Knowles v. Houghton, 11th July, 1805, reported in Vesey, but more fully in CoUyer on the Law of Partnership, the bill prayed an account of partnership transactions, and that the partnership might be established ; and the decree directed an account of the brokerage business, and to ascertain what, if anything, was due to the plaintiff in respect thereof; and the master was to in- quire whether the partnership between the plaintiff and the defendant had at any time, and when, been dissolved ; showing that the court did not consider the dissolution of the partnership as a preliminary necessary before directing the account. In Cookburn v. Thompson, the bill prayed a dissolution ; but it was filed by certain proprietors ou behalf of themselves and others, and Lord Eldon overruled the objection that the others were not parties. In Hichens v, Con- greve, the bill was on behalf of the plaintiff and the other shareholders, against certain shareholders who were also directors, not praying a dissolution, but seek- ing only the repayment to the company of certain funds alleged to have been improperly abstracted from the partnership property by the defendants; and Sir Anthony Hart overruled a demurrer, and his decision was affirmed by Lord Lyndhurst. In Walburn v. Ingilby, the bill did not pray a dissolution of part- nership, and Lord Brougham, in allowing the demurrer upon other grounds, stated that it could not be supported upon the ground of want of parties, be- cause a dissolution was not prayed. In Taylor v. Salmon, the suit was by some shareholders, on behalf of themselves and others, against Salmon, also a share- holder, to recover property claimed by the company, which he had appropriated to himself; and the vice-chancellor decreed for the plaintiff, which was affirmed on appeal. The bill did not pray a dissolution, and the company was a subsist- ing and continuing partnership. That case and Hichens v. Congreve, differ from the present in this only, that in those cases the partnerships were flourish- ing and likely to continue, whereas in the present, though not dissolved, it is § 133.] PARTIES TO bills'. 137 property certain securities held by him, some of which are prior, and some subsequent to the assignment, and sliould pray, that his unable to carry on the purposes for which it w£is formed, an inability to be attributed in part to the withholding that property which this bill seeks to re- cover. So far this case approximates to those in which the partnership has been dissolved ; as to which it is admitted that this court exercises its jurisdiction. This case also differs from the two last-mentioned cases in this, that the difficulty in which the plaintiffs are placed, and the consequent necessity for the assistance of this court is greater in this case ; — no reason, certainly, for withholding that assistance. " How far the principle upon which these cases have proceeded is consistent with the doctrine in Loscombe v. Kussell, ' that in occasional breaches of contract between partners, when they are not of so grievous a nature as to make it im- possible that the partnership should continue, the court stands neuter,' will be to be considered if the case should arise. It is not necessary to express any opinion as to that in the present case ; but it may be suggested, that the supposed rule that the court will not direct an account of partnership dealings and transactions, ex- cept as consequent upon a dissolution, though true in some cases, and to a certain extent, has been supposed to be more generally applicable than it is upon author- ity, or ought to be upon principle. It is, however, certain that this supposed rule is directly opposed to the decision of Sir J. Leach in Harrison v. Armitage, and Richards v. Davies. . Having referred to so many cases in which suits similar to the present have been maintained by some partners on behalf of themselves and others, it is scarcely necessary to say anything as to the objection for want of parties ; and as to the assignees of those shareholders who have become bank- rupts, those assignees are now shareholders in their places, for the purpose of any interest tjiey have in the property of the (jpmpany ; and, as such, are in- cluded in the number of those on whose behalf the suit is instituted. A similar objection was raised and overruled in Taylor v. Salmon, as to the shares of Salmon. Upon the authority of the cases to which I have referred, and of the principle to which I have alluded, if it be necessary to resort to it, I am of opinion that the demurrer cannot be supported ; and that the usual order, over- ruling a demurrer, must be substituted for that pronounced by the vice-chan- cellor.'' See also Post, § 135 a, 135 6; Richardson v. Larpent, 3 Younge & Coll. New R. 507, 512-514; Harvey v. Harvey, 4 Beavan, R. 215, 220, 221; Richardson v. Hastings, cited Ante, § 131. In the recent case of Richardson y. Hastings, 7 Beavan, 323, Lord Langdale is reported to have said : " I cannot say yet that I feel any reason to doubt the propriety of that decision which I made in Evans v. Stokes ; in fact, I think that the winding up of the partnership implies a complete settlement of all the rights and habilities as between the partners themselves ; and as they may be in conflict with regard to these rights and liabilities, you cannot, in that sense, finally wind up the partnership in the absence of any of the partners. It may be attended with very great inconven- ience, and even with the abstaining from doing what is just between the par- ties ; but such a consequence appears to me necessarily to follow from the general rule of the court, and it cannot be corrected except by competent authority. But, then, that being the rule, it was at one time supposed from the second general 12* 138 EQUITY PLEADINGS. [CH. IV. rights might be established, and the priorities of himself and all the other incumbrancers might be declared, it will be necessary, that all the creditors, who are entitled imder the trust deed, should be made parties to the bill by name, however numerous they may be. And if the plaintiff should state his ignoranee of their resi- dences, and whether they were living or dead, it would furnish no sufficient excuse ; for the bill being to have the benefit of a charge, all the persons interested in that charge, and to repel any priority, should be made parties.^ rule, which I have observed upon, that complete justice must be done in the subject-matter before the court, and that the court could not and would not interfere with a partnership at all, as between partners, unless the partnership was to be dissolved, and finally wound up and settled ; and there are several con- flicting cases in the books on that subject, — different judges having expressed very strong opinions on the different views of that question. It now, however, appears very clear that there is not such a rule as that ; for this has been decided, that, in continuing partnership, if a few have an interest in a particular subject adverse to all the rest, and claim the benefit of that interest for themselves, a bill may be filed against those few by one or more on behalf of all the rest. That is certainly a remarkable case in which you have not all the persons interested be- fore the coprt ; but it is not so much more remarkable than the case of one cred- itor or one legatee suing on behalf of many, and other cases of that sort. But we have got to this extent further, that, in the case of an insolvent partnership not formally dissolved, a bill may be filed by one or more against the governing body, to have the assets collected and applied, as far as they will go, towards the dis- charge of the debts, without seeking to ascertain the liabilities and the rights bf • the partners as between themselves, and, therefore, leaving litigation entirely op^n as between these parties after the debts are paid. In that case nothing is sought but satisfaction of the debts, pro tanto, as far as the defective assets will go ; and then, with regard to the remainder of the debts, all the members of the partnership are exposed to such litigation on behalf of unsatisfied creditors for contribution among themselves as the particular circumstances of the case may render necessary." • Newton v. Earl of Egmont, 4 Sim. K. 585 ; S. C. 5 Sim. 130. It is observ- able, that in this case, upon the second hearing, (5 Sim. K. 130,) there was a plea put in, which gave the names and places of residence of all the creditors who had executed the trust deed, omitting the residences of two only. The bill was not brought by the plaintiff as a creditor under the trust deed, on behalf of all the creditors to have the trusts executed ; but it was for the establishment of his own right of priority of satisfaction out of the effects, and incidentally to ascertain the priorities of others, where there had already been a decree made in a suit on be- half of all the creditors ; and the plaintiff's bill was not on behalf of all the cred- itors. The vice-chancellor on this occasion said : " I accede to the rule laid down in Adair v. New River Company, 11 Ves. 429, 443. That rule, however, applies only to cases where there is one general right in all the parties, that is, where the character of all parties, so far as the right is concerned, is homogens- § 133, 134. J PARTIES TO BILLS. 139 § 134. Where there are numerous shareholders, it often hap- pens, that their shares are assigned ; and under such circumstan- ces, the question may arise, how far the original assignors may be dispensed with as parties to a bill brought by the assignees, touch- ing some general interests of all the shareholders, against the im- mediate directors or agents of the company. Probably the ques- tion would be ultimately resolved upon the grounds already stated. If the object of the bill were to enforce some interest common to all the shareholders, and by the articles of the company the shares were assignable, it might be brought on behalf of the plaintiffs and all the other parties in interest, and sustained. [Thus in a bill against the directors of a company, seeking to charge them with the amount of losses occasioned by their misconduct, brought by A and B, shareholders, on behalf of themselves, and other share- holders, if B has assigned all his interest in his shares to C, before the filing of the bill, B is not a proper party to the suit, neither in his individual capacity, nor as trustee for C.^] But if the object of the bill were to dissolve the company, or to subvert its articles, ' and especially if the right to assign were in contestation, the as- signors and the other shareholders, however numerous, might be required to be made actual parties to the suit.^ ous ; £is in suits to establish a modus or a right of suit to a mill. Notwithstanding the inconvenience arising from numerous parties, there are some cases in which they cannot be dispensed with. Thus, if a bill is filed to have the benefit of a charge on an estate, all persons must be made parties who claim an interest in the charge. In this case, where the question is as to a priority of charge, the very nature of the question makes it necessary that all the creditors should be parties. It implies a contest with every other person claiming an interest in the land. The circumstance of the persons named in the plea being judgment creditors, does not remove the difficulty ; for there may have been releases, assignments, want of docketing, and other circumstances afiecting each claim." But see Ante, § 101 ; Owens v. Dickenson, 1 Craig & Phillips, 48, 56 ; Stevenson v. Austin, 3 Met. 482 ; Post, § 149. ' Doyle V. Muntz, 5 Hare, 509. ' See Blain v. Agar, 1 Sim. E. 37; Long v. Younge, 2 Sim. K. 369; Walburn V. Ingilby, 1 Mylne & K. 76-78; Wheeler v. Van Wart, 9 Sim. K. 193 and cases cited; but see Adair v. New River Company, 11 Ves. 429, and Ante, § 132, note, and Post, § 135, 135 a. In the case of Blain v. Agar, 1 Sim. R. 37, the bill was brought by five persons, on behalf of themselves and the other par- ties to an indenture, who were either originally, or by assignment, holders of 1690 shares in a joint stock company, and who by the indenture had transferred their shares to the plaintiffs in trust for themselves. The bill was brought against the directors, imputing to them fraudulent conduct in the management 140 EQUITY PLEADINGS. [CH. IV. § 135. These appear, so far as the authorities go, to be the principal distinctions applicable to the subject of parties, when of the stock and property of the company ; and it averred that the plaintiffs were io-norant of the names of all the shareholders, except those on whose behalf they sued ; but it did not seek a discovery of their names. It further averred that the plaintiffs, and those for whom they sued, had paid certain instalments or deposits of money ; and that the money had been so paid upon the fraudu- lent misrepresentation of the defendants. It furtier averred that the parties to the indenture were very numerous, so as to make it inconvenient to place them as parties on the record ; and it prayed that the defendants might be decreed to pay the money to the plaintiffs, which had been paid on the 1690 shares. There was a demurrer to the bill for the want of parties ; and the vice-chan- cellor held the objection fatal. It is observable that the bill was not on behalf of all the shareholders, but only of those holding the 1690 shares ; and it did not seek a dissolution. The objection for want of parties was twofold ; first, that it was a case of partnership, and all the shareholders were not parties ; secondly, that most of the shareholders were assignees of shares, and as the shares were mere choses in action the assignors ought to have been made parties to the suit, for they imgJU have no right to assign their shares. The vice-chancellor seems to have decided the case on the latter ground, and said : " The plaintiffs sue on behalf of themselves and certain other persons, who are subscribers together of 1690 shares, and who have executed a deed, stated in the bill, by which they assign to the plaintiffs their respective interests in this concern, and constitute the plaintiffs their attorneys to institute any action or suit, in order to give effect to their interests, or to enter into any compromise for their claims ; but upon condition that, after deducting their expenses, the plaintiffs are to hold what they shall so recover or receive, in trust for the said other persons, respectively. . Amongst many objections for want of parties, the defendants insist that these other persons ought to have been named as parties to this suit. The plaintiffs do not deny that, according to the general principles of a court of equity, these other persons ought to have been parties. But they urge? at the bar what is indeed stated in the bill, that these persons are very numerous, and that naming them as parties on the record, would, in all probability, render it impos- sible for the plaintiffs to obtain a decree in the cause. This allegation may be very true. In certain special cases the court has adopted a practice, which, by permitting one or more persons to represent in a suit all who have similar in- terests, has avoided the inconvenience, which results from numerous parties. But it has never been, stated, as a general principle, that this course may be taken in all cases within the mischief; nor has it ever been done in cases analo- gous to the present. And, if I were to yield to the reasoning here, I fear I should be doing what I have no authority to do, not following the practice of the court, but making a new practice." See the same case again before the court after an amendment, 2 Sim. R. 289. Whether, if the bill had been brought in behalf of all the shareholders, it would have been sustainable, does not appear to have been decided. It does not seem necessary, in all cases, to make the assignors parties, as we shall presently see; nor does there seem any solid objection to a bill's being, in common cases, maintained by a few in behalf § 135.] PARTIES TO BILLS. ^ 141 tliey are very numerous, and it is impracticable to bring all the persons interested before the court. It is obvious, that, in the present state of the equity doctrines on this subject, very large classes of cases of this nature may exist, in which no remedial jus- tice can be administered, and irreparable mischiefs may be done.^ For, in many of these cases, relief may be sought, in which all the shareholders have not a common right, or a common interest, to be advanced, and protected by the bill. And, indeed, the bill may, upon proper grounds, seek a dissolution pf the company, or the protection of rights in which other members may have an ad- verse interest, or opposing wishes. Whether courts of equity have been wise or not in the limitations, which they have put upon their right to maintain proceedings under such circumstances, instead of allowing all persons to become parties, either upon a bill on be- half of all, or by coming in and resisting the objects of the bill, under the interlocutory proceedings, is a point upon which a com- mentator ought not perhaps to hazard any decided opinion. That much of the difficulty, however, has been imposed upon the courts by their own choice of rules, founded, in a great measure, upon principles purely technical, will scarcely be denied. And why the same proceedings might not have been permitted, even to the ex- tent of binding unrepresented interests, after due notice to the parties to appear and represent them, as is done in the ordinary cases of creditors against the estates of persons deceased, it is not very easy to state in a satisfactory manner.^ of all shareholders, whether original shareholders or assignees, any more than in maintaining a bill against a few shareholders, whether original shareholders or assignees, where they are too numerous to be all made parties. The latter was the predicament in Adair v. New Kiver Company, 11 Ves. 429. See also Cook- bum V. Thompson, 16 Ves. 328, 329 ; Walburn v. Ingilby, 1 Mylne & K. 76, 77. See also the remarks of Mr. Baron Alderson, in Fenn v. Craig, 3 Younge & Coll. 216, 224, and the cases collected in the Eeporter's note, (a,) p. 224. But see Ante, § 130 — 131 a; Post, § 135 a and note; Richardson v. Larpent, 3 Younge & Coll. New E. 507, 512-514 ; Taylor v. Salmon, 4 Mylne & Craig, 134 ; Wallworth v. Holt, 4 Mylne & Craig, 619, 634 - 640 ; Harvey v. Harvey, 4 Beavan, R. 215, 220, 221 ; Benson v. Heathorn, 1 Younge & Coll. New R. 326. ' See Van Sandau v. Moore, 1 Euss. R. 441, and other eases cited in Ante, § 132, note. See also § 135 a. ' See Lord Lyndhurst's judgment in Small v. Atwood, 1 Younge, R. 457, 458 ; cited Ante, § 132, note; Post, § 135 a; Richardson v. Larpent, 3 Younge & Coll. New E. 507, 512-514 ; Post, 135 b, and note. In Eichardson v. Hastings, 142 EQUITY PLEADINGS. [CH. IV. § 135 a. It may not, however, be thought unworthy of the de- liberate consideration of the profession, whether the doctrine has not already been pressed beyond the legitimate limits, within which it can safely be applied, and whether it ought to be carried further in its application to new cases, as they may arise in judg- ment. If courts of equity are in the habit of declining to act in the absence of particular parties, merely because there is a possi- bility of their decree working some injustice to persons, not repre- sented or before the court, there would seem to be at least an equally strong ground to assert, that where the injury, by abstain- ing from the exercise of jurisdiction on account of a defect of such parties, will be positive, immediate, and irreparable, they ought to assert jurisdiction. In such cases, if there is no possibility of bringing such parties before the court, the general principle would seem to apply, that parties should be dispensed with who are be- yond the reach of the court, from a moral or a physical impossi- bility, and that the court should decree according to the merits of the controversy between the parties actually before it, leaving, as ■ far as practicable, the rights of all other persons untouched, and 7 Beavan, 323, Lord Langdale is reported to have said: " All cases of this kind are attended with some degree of difficulty, the conclusion to be arrived at de- pending on rather nice circumstances ; and, I must say, that the arguments in support of a demurrer of this sort have mostly a very strong foundation ; and the reason is, that cases of this kind always deviate from two old general rules of the court. One is, that all persons interested in the subject-matter of the suit ought to be parties ; the other is, that the court ought to do complete jus-- tioe in every case, and not leave matters involved in the suit to be the subject of future litigation. Now, this is a bill which certainly is a departure, to a certain extent, from both these rules, because it is proposed to be prosecuted in the ab- sence of parties interested in the suit ; and it proposes, that the rights of the several parties to the sums to be recovered shall be left at their disposal, if they can agree, and if they cannot agree, they must be left for future litigation. But exceptions to the above rules have been at all times allowed. I recollect, in my professional studies, having a copy of a book in which one of the chapters was headed, 'In what cases necessary parties are dispensed with.' That was the subject of the whole chapter. But it has become necessary to make these ex- ceptions larger with the progress of the transactions of mankind ; and certainly everybody who reads what Lord Cottenham has more than once said on such oc- casions, must be perfectly satisfied with the justice of his observations, that the court must always not only act within the limits of its jurisdiction, but must ap- ply the powers which are so necessary for the administration of justice to the circumstances which are found in society in our own times ; that the rules of the courts must be adapted to the circumstances in which the execution of justice is required." §135 a.] PARTIES TO BILLS. 143 iinprejiidvjed by the decree, or enabling them to appear and con- test the validity of the proceedings, so far as their particular inter- ests are concerned. In truth, in many cases, courts of equity now assert a jurisdiction to bind the interests of many parties not actu- ally before them ; and there does not seem any sound reason, why the possibility of injustice to third persons should overcome the duty to grant relief against present injuries and mischiefs between the parties actually before it, where the refusal must otherwise necessarily work irreparable injustice. Besides ; it is to be con- sidered, that the general riile, requiring all persons in interest to be made parties to the suit, is, in most cases, not in any just sense, a right of the parties brought before the court, but rather a rule prescribed by courts of equity to themselves in the exercise of their jurisdiction, founded upon their own notions of public policy, or public convenience. It is, in a great measure, a rule of discre- tion, founded in the anxiety of those courts to do justice among all the parties, having an interest in the subject-matter or the ob- ject of the suit, whether that interest be mediate or immediate, present or future, for the purpose of suppressing future contro- versy and litigation. The rule is useful, when applied to its prop- er, legitimate purposes. But it may be seriously asked, whether it can be justified, where, in its actual application, it must neces- sarily produce irremediable injustice to the persons asking relief at the hands of the court, and there is an iitter impossibility of overcoming the difficulty and proceeding - against the absent par- ties. When all the persons in interest can be made parties, and the decree must affect their interest, there seems to be a sound reason for insisting upon a strict adherence to the rule. But when they cannot be made parties, and a decree may be made between the parties before the court, which does not positively and absolutely conclude the rights of other persons, but leaves them to act upon those rights without prejudice, there seems good reason to say, that courts of equity ought, like courts of law, to act upon the case before them, endeavoring to provide as far as they may, for a reasonable protection of any unrepresented rights. The suggestion of a learned chancellor, (which has been already cited,) contains, on this subject, a most impressive lesson : — That courts of equity ought to adapt their practice and course of pro- ceeding as far as possible, to the actual state of society ; and not, by too strict an adherence to forms and rules established under 144 EQUITY PLEADINGS. [CH. IV, i very different circumstances, decline to administer an,d enforce rights, for which there is no other remedy.^ § 135 b. Some very important decisions have been recently made, which seem to support the preceding reasoning ; and, in- deed, to take a distinction and suggest a mode of proceeding in cases of this sort, which may obviate most if not all of the practi- cal difficulties growing out of the former decisions. It is this : that where the different members of an unincorporated association have different interests, some being in favor of winding up its affairs and procuring a dissolution, and others opposed to it, a bill may be brought by some of the shareholders on behalf of themselves and all agreeing with them, for such a dissolution ; and so many of those opposed to it, as may fairly be presumed to represent the interests of all, should be brought^ before the court as defendants; and then the bill may be retained for discussion upon its merits.^ ' Ante, § 76 c. Taylor v. Salmon, 4 Mylne & Craig, 141, 142. See also Ante, § 120, 132, note (1), and the cases there cited; Powell v. Wright, 7 Beavan, R. 444. 2 Wallworth v. Holt, 4 Mylne & Craig, 619, 634-640 ; Ante, § 132 ; Cooper V. Webb, 15 Simons, 454 ; Lovell v. Andrew, 15 Simons, 581 ; Apperly v. Page, 1 Phillips, R. 779 ; Sharp v. Day, Ibid. 771 ; Richardson v. Larpent, 3 Younge & Coll. New R. 507, 512-514. In this last csise, Mr. Vice-Chancellor Bruce said: " This is the case of a very numerous unincorporated trading company, between the members of which there is a schism, one division taking one view of certain important proceedings relating to their common interest, the other a different view, find each division comprehending, as it appears, such a number of persona, as to render it substantially impracticable to conduct a suit comprising aU the individuals of either class. The bill is filed by the plaintifis on behalf of them- selves and all the other members of the partnership. It may be that, as far as the plaintiffs are concerned, it is properly filed on behalf of themselves and those members who take the same view of the matters in dispute as they do, and not properly filed on behalf of all the members. But upon this it is not necessary to give an opinion. In regard to the defendants, none of the dissentients fi'om the views of the plaintiffs are here in that character. It is true that some are pres- ent; but all present are directors or trustees, — persons to whom, more or less, are committed the general government and administration of the company. They are all, therefore, directors or trustees, more or less, for all, and, sustaining that char- acter, cannot, it may fairly be supposed, exercise so fully and freely the right and power of opposing the plaintiffs' views, as those persons may be considered likely to be capable of doing, who owe no duty to the plaintiffs, beyond the simple and ordinary* duty of partners. The points on which the partners are divided are, — first, the time, manner, and circumstances of dissolving the company ; secondly, as to the question whether the capital has been rightly increased, that is to say, whether the plaintiffs can be compelled to pay to the parties, who are in the situ- § 135 a - 135 c] parties to bills. 145 § 135 c. So, where a shareholder, in a projected company, filed a bill on behalf of himself and all other shareholders, except the ation of governors of the concern, more than a certain specified amount of capital. One object of the bill is to obtain a dissolution, another more plain object, to exempt the plaintiffs from the liability to contribute to a further capital. But the larger body of the shareholders are. those who have actually contributed that in- creased amount of capital which is in dispute. These persons, it being at least very doubtful whether, having contributed the money, they can recover it back again, have plainly, as it seems to me, an interest that the plaintiffs should fur- ther contribute ; but the plaintiffs desire that they, the plaintiffs, should be freed from contribution. It is too much to say that questions so important should be decided without the presence of at least an adequate number to maintain each side. But, as I have already said, only the directors and trustees are here as de- fendants, — men who must be restricted in the mode and form of their opposition, because they owe the plaintiffs a duty beyond that which exists simply between partner and partner. They are officially obliged to have an equal mind towards the shareholders, and cannot properly be considered as representing an oppo- sition. ' " Considering the nature of the questions agitated on this bill, and taking the answer to be true for this purpose only, I must say, that the suit is defective for want of parties. My present impression is not, that, in every case where a dis- solution is sought, all the individual partners must, of necessity, be present. Generally, the rule may be so, but I can conceive a case where it would be most important to the interest of the plaintiffs, and their right to have the partnership dissolved, and yet, though the legality of the partnership were recognized by law, it might be impossible in substance to obtain a decree for dissolution, if it were necessary to have all the parties present. Such a state of things could hardly be permitted to exist by any court of justice, or in any civilized country, nor am I aware that any judge has gone the length of saying that it should or does exist. I do not say that all the parties dissentient should be here ; but there ought to be a sufficient number to discuss the present questions freely and unrestrainedly ; or, at all events, with more freedom and propriety than they can be discussed by the defendants now on the record." See also Harvey v. Harvey, 4 Beavan, K. 215, 220, 221. But the later case of Decks v. Stanhope, decided by Vice-Chancellor ShadweU, 14 Simons, R. 57, expressly requires the distinction between a bill to have the accounts of a partnership taken and its affairs wound up, and a bill which asks further that the partnership may be dissolved. In the latter case all the members, however numerous, must be parties to it. The vice-chancellor said : " Now there is a train of decisions which have held, that, where a bill is- filed for the dissolution of a partnership, that cannot be affected unless you have all the parties interested before the court. The case of Evans v. Stokes was de- cided six years after the case of Long v. Younge ; and Lord Langdale there says, ' It is perfectly obvious that a suit where all the accounts of the partnership are to be taken, and the rights of all partners are to be undermined, as betweSi them- selves, and under the various circumstances in which they stand in relation to each other, (some of them, for instance, having paid their calls, and others having omit- ted to do so,) cannot be prosecuted in the absence of any of those partners.' Then, E Ante, § 193 f Call v. Mortimer, 1 Harris, Ch. Pr. by Newl. 30 (1808) ; Leon- ard V. Morris, 9 Paige, K. 90. ' Hobart v. Abbott, 2 P. Will. 643 ; Cooper, Eq. PL 37. ' Lewis V. Nangle, 2 Ves. 431 ; S. C. Ambl. R. 150 ; Ante, § 153. ' Freake v. Horsley, 2 Freem. E. 180 ; S. C. 2 Eq. Abridg. 77 ; 1 Ch. Cas. 51 ; Bradshaw v. Outram, 13 Ves. 234. ' Scott V. Nicoll, 3 Euss. 476 ; Wood v. Williams, 4 Madd. E. 186 ; Clerkson v. Bowyer, 2 Vern. 67 ; Meeker v. Tanton, 2 Ch. Cas. 29 ; Ante, § 74 a. » Ibid. 202 EQUITY PLEADINGS. [CH. IV. must be made pJtrties.^ So, if the mortgage has been made to a trustee in trust, all the cestuis que trust (or beneflcidries) should be made parties, as well as the trustee, to the bill to foreclose.^ § 202. Upon the same ground, if the mortgagee, or his assignee, Tias by deed or will settled the mortgaged estate in strict settle- ment, the first person in esse, entitled to a vested estate of inherit- ance in remainder, and all persons entitled to prior estates, and their trustees, if there are any, are necessary parties to the bill of foreclosure.* § 203. Sixthly, in cases of legacies and charges under wills.* We have already had occasion to anticipate much which would be appropriate to this head, and to state, as in the case of a pecuniary legacy, no other person, except the executor, is ordinarily a neces- sary party to a bill to enforce the payment of it out of the assets." But if there is a deficiency of assets, and it so appear by the bill, the bill should either make all the other legatees parties to the suit by name, or it should be brought on behalf of all of them ; so, that they may have their rights ascertained, and otherwise have the benefit of the decree.® So, where several legacies are given, which are to be increased, or diminished, according to the state of the funds, it is proper, that a bill filed by one legatee, should be on behalf of all.^ § 204. We have also seen, that where the residue is bequeatlied to several legatees, all of them should ordinarily be made parties, 1 Palmer v. Earl of Carlisle, 1 Sim. & Stu. 423 ; Wing v. Davis, 7 Greenl. K. 31 ; Lowe v. Morgan, 1 Bro. Ch. K. 368. '■ Wood V. Williams, 4 Madd. K. 186 ; Lowe v. Morgan,.! Bro. Ch. K. 368. But see Montgomerie v. Earl of Bath, 3 Ves. 560 ; Allen v. Knight, 5 Hare, R. 272; Post, § 207. ' Blount V. Earl of Winterton, 1 Harris, Ch. Pr. by Newl. 29 (1808) ; Ante, §144-147. * See Calvert on Parties, ch. 3, § 4, p. 172-175; Edwards on Parties, 130- 140. ' Ante, § 105, 138, 139 ;. Wiser v. Blaehley, 1 John. Ch. R. 438 ; Peacock v. Monk, 1 Ves. 127 ; Mitf. Eq. PI. by Jeremy, 168, 171 ; Wainright v. Waterman, 1 Ves. jr. 312 ; Lawson v. Barker, 1 Bro. Ch. R. 303 ; Attorney-General v. Ryder, 2 Ch. Cas. 178; Court v. Jeffrey, 1 Sim. & Stu." 105. ° Ante, § 100 ; Brown v. Eicketts, 3 John. Ch. E. 553 ; Fish v. Howland, 1 Paige, R. 20 ; Egberts v. Wood, 3 Paige, R. 517, 520 ; Mitf. Bq. PI. by Jeremy, 168 ; Savage v. Lane, 6 Hare, 32. ' Brown v. Ricketts, 3 John. Ch. R. 553. But see Haycock v. Haycock, 3 Ch. Cas. 124. §201-206.] PARTIES TO BILLS. 203 either by name, or by a suit in behalf of all ; and, that the same rule applies to the case of distributees, claiming in a case of intes- tacy ; for in such cases there is a common interest in all of them.^ Upon these points, therefore, we need not dwell. For the like reason, where there are various appointees of personal property under the will of a/ewie covert, they should all be made parties to a bill against her personal representative, to enforce their claim.^ § 205. Where legacies are by a will made a charge on the real estate in the hands of the heir or devisee, the heir or devisee enti- tled to the real estate, must of course be a party to any bill to en- force the charge ; and the executor also must be a party, if the personal assets are not exonerated from the charge, as the primary fund.^ To such a bill, all the legatees, who are entitled to the benefit of the charge, are also proper and necessary parties in their own names ; for they all have a common interest in the fund.* If there are any exceptions to the rule, they stand upon very pecu- liar grounds, which must be specially brought before the court ; and then, perhaps, a bill might be maintainable in the name of one or more of the legatees, on behalf of all.^ § 206. For the same reason, where by a will the executors are made trustees to sell the real estate of the testator, and out of the produce, after the discharge of debts, to pay certain sums to cer- tain legatees, which sums are also charged on the personal assets, in case of a deficiency of the real fund ; on a bill brought by one of the legatees, to obtain his share of the proceeds from the execu- tors, all the other legatees are necessary parties.® ^ Ante, § 104, 105; Post, § 207, 207 a; Hallett v. Hallett, 2 Paige, K. 15; Sheritt V. Birch, 3 Bro. Ch. R. 229. ' Court V. Jeffrey, 1 Sim. & Stu. 105. If the appointees under the will are very numerous, the court will dispense with their being made parties, and allow a bill to be filed by some on behalf of all. Manning v. Thesiger, 1 Sim & Stu. 106. ' See ante, § 163, 164, and the Orders in Chancery of 1841, cited § 160, note. * Morse v. Sadler, 1 Cox, R. 352; Hallett v. Hallett, 2 Paige, R. 15, 22 ; Fish V. Howland, 1 Paige, R. 23 ; Ante, § 150, 164; Post, § 215, 216; Harrison v. Stewardson, 2 Hare, R. 530, 532. ' Ante, § 105 and note, 150, 164; Post, § 207 a, 201 h, 215, 218; Hallett r. Hallett, 2 Paige, R. 15, 22, 23; Manning v. Thesiger, 1 Sim. & Stu. 106. See Harrison v. Stewardson, 2 Hare, R. 530, 532; Ante, § 150; Post, 216. ° Faithful V. Hunt, 3 Anst. R. 751. But see ante, § 150 and note, and the Orders in Chancery of 1841, Orders 30 and 31, there cited; Ante, § 163 and note, 164, 205. 204 EQUITY PLEADINGS. [CH. IV. § 207. Seventhly, in cases of trust.^ The general rule in cases of this sort is, that in suits respecting the trust property, brought either by, or against the trustees, the cestuis que trust, (or benefi- ciaries,) as well as the trustees, are necessary parties. And where the suit is by or against the cestuis que trust, (or beneficiaries,) the trustees also are necessary parties. The trustees have the legal interest, and therefore they are necessary parties. The cestuis que trust, (or beneficiaries,) have the equitable and ultimate interest to be affected by the decree, and therefore they are necessary par- ties.2 Indeed, in England, the general rule is, that if property is given to trustees for certain cestuis que trust, (or beneficiaries,) a court of equity will decree it to be paid to the latter, and not to the trustees ; so that the beneficiaries are emphatically the direct parties in interest.^ For a similar reason, all persons who have specific charges on trust property, derived under the trust, and appertaining to the due execution of it, are generally required to be made parties to suits respecting the due execution of the trust, or touching their rights therein, whenever the persons are definite- ' See Calvert on Parties, ch. 3, § 9, p. 208-220; Edwards on Parties, 158- 167. 2 Cooper, Eq. PI. 34 ; Mitf. ,Eq. PI. by Jeremy, 1 76, 1 79 ; Adams v. St. Leger, 1 B. & Beatt. 181, 184, 185 ; Court v. Jeffrey, 1 Sim. & Stu. 105 ; Wood v. Williams, 4 Madd. K. 186 ; Burt v. Dennet, 2 Bro. Ch. K. 225 ; Osbourn v. Fallows, 1 Euss. & M. 741 ; Malin v. Malin, 2 John. Ch. R. 238 ; Fish v. Howland, 1 Paige, E. 20 ; Stillwell V. MoNeely, 1 Green, Ch. R. 305 ; Ante, § 150, 201, 204-206 ; Holland u. Baker, 3 Hare, R. 68 ; Roberts v. Tunstall, 4 Hare, R. 261. Where property is settled in trust in remainder, for the persons who should be the next of kin of the tenant for life, at her death the presumptive next of kin are not necessary par- ties to a suit instituted for the execution of the trust during the lifetime of the tenant for life. Fowler v. James, 1 Phillips, R. 803. a Weatherby v. St. Giorgio, 2 Hare, 624, 629 ; Ante, § 149, 150 ; Post, § 215- 217 ; Baker v. Harwood, 1 Hare, R. 327 ; Holland v. Baker, 3 Hare, R. 69. In this last case, Mr. Vice-Chancellor Wigram said : " Now ■prima facie, I take it to be the duty of trustees, being parties to be a bill affecting the trust property, to insist that the cestuis que trust should be brought before the court. Trustees are not themselves owners of the property ; they are, in a sense, agents for the owners in executing the trusts ; but they are not constituted agents for the pu^ pose of defending the owners against the adverse claims of third parties in this court. It is the duty of trustees in such a situation to object that the owners of the estate are not before the court ; and I think it is the right of trustees in that case to insist that the onus of resisting adverse claims shall be thrown upon the cestuis que trust, and not on themselves.'* But see Allen v'. Knight, 5 Hare, E. 272. § 207.] PAKTIES TO BILLS. 205 ly ascertained, and the trust is of a limited nature.^ [So, where the trustees of a dissenting chapel, had power to mortgage the property by consent of a majority of the men subscribers of the congregation, and mortgaged it under their powers, with a power of sale, and the mortgagee conveyed to A B, it was held in a suit by the trustees against A B, insisting that he was liable as assignee of the mortgagee, and not as purchaser, and claiming the balance of the value of the property above the mortgage debt, that all the men subscribers, members of the congregation, were necessary parties.^] • Mitf. Eq. PI. by Jeremy, 176 ; Ante, § 150 ; Harrison v. Stewardson, 2 Hare, R. 530. * Minn v. Stant, 12 Beavan, 190, as explained in 7 Eng. Law & Eq. R. 100. The master of the rolls observed, " The bill is filed by trustees, to confirm a sale, by a mortgagee to a railway company, of the property belonging to a chapel, to treat him as a trustee of the purchase-money, for their benefit; and upon paying what is due to him for principal and interest, to make him pay over the remainder to trustees for the benefit of the congregation. This transac- tion may be looked at in two points of view ; it is competent for the persons, whoever they are, interested in the transaction, either to say, it is a transaction of which we will take the benefit, or it is a transaction which we choose to have set aside altogether, and in which we will have the benefit .of redeeming the mortgage, and having the estate against the railway company ; or they might say it was sold for a much lower price thai\,its value. In either point of view, it is impossible to proceed without those persons being here. " If it were the case of a sale, it appears by the deed, which is set out in the bill, that the trustees have no power to sell without the consent of the major number of the men subscribers. Could they institute or support a bill to gain the benefit of a sale of this property without their consent in the same manner as if they were themselves about to sell ? I do not think they could ; and the court would require the sanction and the consent of that party to the transac- tion. It is admitted that that consent has never been given ; and, consequently, the court would require to have that consent given at the time when the decree was made, by the persons who are the men subscribers. " I do not say it is not possible that that defect might not have been cured if there had been a meeting previously to the bill being filed, and all the men sub- scribers had been called for the purpose, in the manner prescribed by the deed, and they had sanctioned the institution of the suit. If there had been evidence of that, it might have cured the defect. It is evident that the fluctuating nature of the body creates a great difliculty. If the body for the time being had sanc- tioned the sale or had sanctioned the suit for the purpose of gaining the benefit of the sale, it is possible that this objection (and that is my present impression) might not be capable of being sustained. " But the difficulty is still greater when it is observed that this transaction may be looked at in two points of view ; and what has been observed is very correct, EQ. FL. 18 206 EQUITY PLEADINGS. [CH. IV. § 207 a. There are, however, some exceptions to the rule, as we shall presently see. Thus, for example, if each party is entitled to an aliquot part, such as a quarter or a half of an ascertainecl and definite trust fund, in such a case he may sue for his own porT tion thereof without making the other cestuis que trust (or bene^ ficiaries) parties, for there is no community of property, or other matter, in virtue of which they have, or can have, any interest in that not only have the men subscribers not sanctioned it, but that any one of the cestuis que trust, or of the congregation, might say, this is a transaction which, not having been properly sanctioned, you ought to have filed a bill for the pur- pose of setting it aside altogether, and of giving the congregation the advantage of redeeming the mortgage and obtaining the benefit of the increased value of the land from the position in which it is placed. I do not say, nor would it he proper for me on this question to determine, whether this is a transaction which it would be competent to them to consent to or not ; but this is manifest, that any one of the men subscribers, who have not confirmed the transaction, might file a bill to-morrow for the purpose of setting aside the transaction, and saying that it is not binding on any persons who were not actually parties to the suit at the time it was instituted. I cannot doubt but that was in substance what Lord Langdale decided when he came to the previous determination. This objection might have been met in this way, that if you had a meeting of the men sub- scribers beforehand, you might, with respect to the majority, (if they had not been unanimous,), who had sanctioned the proceeding, have dispensed with their attendance, making those who dissented parties to bind their interest on the record ; but as the matter stands, I feel it would not be possible for the court to proceed, and do justice in the present state of the record. " I feel that by allowing this objection, it is of a serious and fatal nature ; and , that was strongly pointed out to me. It is said, undo'ubtedly, that this court will endeavor to mould all its rules for the purpose of carrying into effect and effect- uating justice in the manner it best can ; that is true ; and for that purpose these rules, with respect to representation, have always been introduced ; but they have been introduced where you could represent persons, who have so far a common interest with the persons parties to the record, that it was clear they had one common interest for the purpose of this suit, though there might be afterwards some question of distribution between the parties, but not where any of the parties would not have been precluded from instituting a suit for the pur- pose of setting aside the whole transaction sought to be affirmed by the suit before the court. " It is true that this court does all it can for the purpose of administering jus- tice ; but it would be no justice to Mr. Stant, or any defendant on this record, if a decree were made in this transaction afiirming it, and compelling him to pay over the amount of the purchase-money after he had been paid his mortgage in full ; and if, after that had been done, a suit should be instituted agaiast him and the railway company for the purpose of setting aside the whole transaction, and making him liable to the railway company in respect of their being deprived of the land that had been taken ; in that respect I concur in the observations I 207 a.] PARTIES TO BILLS. 207 the suit or subject of the suit.^ So, wherever a great practical in- convenience would arise from a strict application of the general rule, there the court has power to relax it, in order to prevent tliat, which is laid down for the purposes of justice, from working the contrary ; as, for example, where there is a small property to be divided among a large number of cestuis que trust, who are foreigners resident abroad. The like exception would seem to apply, where the cestuis que trust (or beneficiaries) are very nu- merous, or the description of them is so general, that it is difficult or impracticable to ascertain, in the first instance, who are all the made by the defendant, and I think the observations of Lord Cottenham in Car- lisle V. The Southeastern Railway Company, are strictly applicable, and bear very strongly on the present case : they in effect were, that you could only bind the rights of the parties, by binding all those persons, either by a previous meet- ing, or by previous acquiescence, or by making themselves parties where their rights were inconsistent, and at issue with those who are bound on the record, and who could not be in fact bound by the proceedings in this suit ; it would bind the persons made parties here, but no other parties whatever. " Now, the cases which are cited of trustees who filed a bill to bring back a trust fund, without making their cestuis que trust parties, have no application to this case whatever, because this is a case in which the interests of the cestuis que trust may be at variance with the course which the trustees are pursuing. " I am, therefore, of opinion that it is totally impossible for me to hold that the men subscribers should not be made parties to this suit. I consider that Lord Langdale has, in point of fact, decided it when he said he had not ' heard any answer to the argument that if the defendant succeeds he will still be left open to another bill at the suit of the subscribers ' ; and will he not be left open to an- other bill at the suit of the subscribers unless the men subscribers are all bound by the decree which the court shall make ? " It is manifest to me that he will, and that the principle of his decision goes to that extent, and it was very difficult in argument not to admit, in substance, that the matter was concluded by Lord Langdale's decision, and in my opinion it is. The observation that there ought to be an amendment ' by making some of them parties,' I can only consider to be an observation of Lord Langdale on a question that was not brought before him, and which he had not the opportunity of con- sidering the effect of. It is not possible for me to allow this suit to proceed, if it is possible that the defendant should be sued, I will not say for the same matter, (that is, for the purpose of affirming the transaction,) but in respect of the same matter in a different form, and probably in a more serious form, which I am satis- fied might be done, if this objection did not prevail. " I must allow the objection for want of parties, and give the plaintiffs leave to bring new parties before the court, either by supplemental bill, or by amendment, as they may be advised." ^ Post, § 212 ; Hutchinson v. Townsend, 2 Keen, R. 675 ; Morley v. Rennold- son, 2 Hare, R. 570 ; Smith v. Snow, 3 Madd. R. 10 ; Hares v. Stringer, 15 Bea- van, 206. 208 EQUITY PLEADINGS. [CH. IV. persons included therein, or many are unknown or are resident abroad. Under such circumstances, the proper inquiries may be directed to be made before a master, before the final decree.^ § 207 b. This last position may be illustrated by the case where the class of persons interested and entitled to share in the prop- erty are very numerous, as, for example, in case of residuary lega- tees, who are very numerous ; there the rule, whether all or part of them shall be inserted in the suit, is a question of mere conve- nience, to be decided by the court ; and, in many cases, the court will permit a few of the residuary legatees to sue in behalf of all.^ ' Ibid. ; Hawkins v. Hawkins, 1 Hare, R. 543, 546 ; Ante, § 94 ; Post, § 208, 217; Harvey t7. Harvey, 4 Beavan, R. 215, 2^0, 221. See Ante, § 163, note; Holland v. Baker, 3 Hare, R. 68. In this case, Mr. Vice-Chancellor Wigram said : " I have said that it is the duty of the trustees to require that all their- cestuis que trust should be before the court. If the court is to dispense with the presence of any number of them in order to avoid the inconvenience of bringing so large a body of creditors before the court, it seems of necessity to follow, that the trustees of the property, upon which the court is to act, should be parties to that record, that they at least might be able to inform the court, whether it is suf- ficiently framed with reference to the interests of the whole of the cestuis que trust, by the selection of those, who, in the existing state of things, are in a position adequately to represent the interests of the body. I do not doubt that the court does allow a selected number to represent a numerous body of defendants, whos^ interests are sought to be adversely affected in a suit. Lord Eldon repeatedly said it might be done, if the purposes of justice required it ; and Lord Cottenham, in Atwood v. Small, after saying that the right course was to bring all parties be- fore the court, observed, that courts of justice are bound to have regard to the mode in which the affairs of mankind are conducted ; and when, in consequence of the mode of dealing, it would be impossible to work out justice, if the rule requiring all persons to be present were not departed from, it must be relaxed, rather than be allowed to stand as an obstruction to justice. I shall not be in the least degree deviating from that rule in this case, by holding, that, so far as the supplemental bill is concerned, the trustees ought to be parties, where a few of the creditors are chosen to represent the whole." ^ Harvey v. Harvey, 4 Beavan, R. 215, 220, 221. In this case. Lord Lang- dale said : " The principal point which arose for decision in this case was whether a legacy, given by the will of the testator after the death of the tenant for life to a class of persons not now ascertained, but who are to be ascertained upon the death of the tenant for life, was void for remoteness. Two objections for want of parties were taken by the defendants. The first was, that it was not competent . for the plaintiff to sue ' on behalf of herself and all others,' who were in the like interest ; for, as some questions might arise between them, the suit could not be sustained unless all the persons who had presumptive rights to a share of this legacy were before the court. Questions of this nature, whether certain persons so circumstanced are or are not indispensable parties to a suit, are very much §207 a -208.] parties to bills. 209 So, scheduled creditors, under a creditor's deed, who were not parties thereto, have been held not necessary parties to a suit by a subsequent incumbrancer, to have the moneys out of which it was intended to pay such creditors, raised, the trustees being parties.^ § 208. Upon the general principles of courts of equity, there would be an impropriety in binding either the legal claimants, or the equitable claimants, unless they were fully represented, and permitted to assert their rights before the court ; and if not bound, the decree would not be final on the matter litigated. If the ces- tuis que trust (or beneficiaries) should not be made parties to the questions of convenience ; and, in this case, I am of opinion that though some inconvenience may arise in not having all the parties presumptively entitled before the court, yet that such inconvenience would be considerably less than would necessarily arise from requiring them to be made parties in this stage of the cause ; and which would probably amount to a complete obstruction of the suit, and would render it impossible ever to bring it to a hearing. My opinion is, that the first objection must therefore fail. The other objection for want of parties is this ; it being a question whether the legacy is void for remoteness, it may happen that the next of kin have an interest in the legacy. That the next of kin will be convenient or proper parties, provided they can be had here without inconven- ience to the other side, is a matter of no doubt. The plaintiff herself has consid- ered that they would be proper parties, because she has made one of the next of kin, and another person, who is both heir at law of testator, and legal personal representative of another next of kin, defendants ; and the widow, who would be entitled to a share of the legacy in case of intestacy, is also a defendant. The plaintiff alleges that there are now sufficient persons here to argue the question, or to maintain the interest of the next of kin. This, again, is a state of things in which the court may consider a suit properly constituted on the ground of con- venience ; and, looking with that view at the allegations contained in the bill and the answer, it does not now appear known that there will be a preponderating inconvenience by bringing the next of kin before the court. I am, therefore, of opinion that the cause cannot proceed without some further inquiry respecting the next of kin ; and, upon this occasion, I must order an inquiry who are the next of kin, and who are the legal personal representatives of such of the next of kin as are dead. I make no other order ; because, in the end, it may turn out, when we know who are the next of kin, that it would be necessary, or at least proper, for the plaintiff to proceed, even in the absence of the other next of kin. The ques- tion which I determine in the present stage of the cause is this, that there is noth- ing upon which I can act to show that there would be a preponderating incon- venience in bringing before the court the other next of kin, or their represent- atives. There must be an inquiry before any further steps can be had." See Weatherby v. St. Giorgio, 1 Hare, R. 629. But see Hawkins v. Hawkins, 1 Hare, R. 543 ; Ante, § 104, 105; Batten v. Parfitt, 2 Younge & Coll. New R. 343. ' Powell V. Wright, 7 Beavan, R. 444. 18* 210 EQUITY PLEADINGS. [CH. IV. suit, and their interests are apparent, a court of equity will some- times, as a matter of indulgence, and to prerent further delay and expense, allow them (if they wish) to bring forward their claims by petition, in order to have their interests ascertained, and their rights protected.^ But at all events, they may bring a bill against their trustees and the original plaintiif, to assert and pro- tect their rights in the other suit.^ § 209. Upon this ground it is, that if a bill be brought by a cestui que trust for a specific performance of a covenant under seal, made to a trustee for the benefit of the plaintiff, the trustee must be made a party to the suit.^ So, if a bill should be brought by a cestui que trust, to foreclose a mortgage given to a trustee for his benefit, the trustee should be made a party.* So, if a ces- tui que trust should bring a bill to enforce the trust, against a third person, to whom the trustee has assigned the property in violation of the trust, the trustee should be made a party ; for he is ultimately bound for the due fulfilment of the trust.^ On the other hand, if the trustee should bring a bill for a specific per- formance of articles, [it was formerly held, that] the cestuis que trust should be made parties ; ^ [but more recently a different practice prevails, where the trustees, and not the beneficiaries, ' Drew V. Harman, 5 Price, K. 319, 324. ^ Creagh v. Nugent, Mosely, R. 355, 356. Though there are ever so many- contingent limitations of a trust, it is an established rule that it is sufficient to bring the trustee before the court, together with him in whom the first estase of inheritance is vested. Hopkins v. Hopkins, 1 Atk. 590 ; Cholmondeley v. Clin- ton, 2 Jac. & Walk. 133. = Cooke V. Cooke, 1 Vern. R. 36 ; Cope v. Parry, 2 Jac. & Walk. 538 ; Hook V. Kinnear, 3 Swanst. R. 417, note. * Wood V. WiUiams, 4 Madd. R. 186. Where the original trustees, having the legal estate, and all the cestuis que trust, having the beneficial interest, are before the court, intermediate trustees for the benefit of the latter, are said not to be necessary parties. Head v. Lord Teynham, 1 Cox, R. 57. What is the ground of this distinction, since the intermediate trustees have, or may have, an equitable interest, either primary or secondary ? A person, with whom a trust deed has been deposited, and who has delivered it up to the original party, who executed it, if not charged with a breach of trust, need not be made a party to a bill by the cestuis que trust for a specific performance of the trust, and a re- delivery to them of the deed. Kyne v. Moor, 1 Sim. _& Stu. 61 ; Ante, § 207. ' Burt V. Dennet, 2 Bro. Ch. R. 225 ; Lund v. Blanchard, 4 Hare, R. 28 ; Ante, § 207. » Kirk V. Clark, Prec. Ch. 275; Douglass. Horsfall, 2 Sim. and Stu. 184; Malin v. Malin, 2 John. Ch. R. 238 ; Ante, § 207. §208-211.] PARTIES TO BILLS. 211 were the parties to the contract sought to be enforced;^ and, by the modern practice, a trustee may maintain a bill to redeem a trust estate, which has been mortgaged by himself, without mak- ing the cestui que trust a party to the bill ;2 so, he may maintain a bill to foreclose a mortgage given to him, without joining the ben- eficiaries.^] So, if a bill for the redemption, or a bill for the fore- closure of a mortgage, should be brought against a trustee, the cestuis que trust are, in each case, necessary parties.* [But in a suit by the trustees of a composition deed to compel the assignor to perfect the transfer of a portion of the trust property, the ces- tuis que trust are not necessary parties ; otherwise as to a pur- chaser to whom the trustees contracted to sell the property.*] § 210. And, where there are divers trustees, in a suit to en- force the trust, or to set it aside, all the trustees should be made parties ; for all of them have a community of interest ; and other- wise there might be diflferent suits brouglit by or against each; and, under ordinary circumstances, the bill will not be main- tained, without all of them are so joined.^ For a similar reason, if there are divers cestuis que trust, all of them should be made parties to a bill touching the common interest.'^ § 211. Where any of the trustees are dead, the survivor or sur- vivors of them must be made parties to a suit respecting the sub- ' Potts V. The Thames Dock Co. 7 Eng. Law & Eq. K. 262. * Boyden v. Partridge, 2 Gray, 190. ' Swift V. Stebbins, 4 Stew. & Port. 447. * Calverley v. Phelp, 6 Madd. R. 229; Whistler v. Webb, Bunb. E. 53; Ante, § 207. ' Alexander v. Cana, 1 De Gex & Smale, 415. See Maule v. Duke of Beau- fort, 1 Buss. 349. ' In re Chertsey Market, 5 Price, R. 261. ' Hamm v. Stevens, 1 Vem. 110 ; 1 Eq. Abri4g. 72; Lowe v. Morgan, 1 Bro. Ch. E. 368, and Mr. Belt's note; Ante, § 149, 150, 207; Post, § 213, 216, 217; Harrison v. Stewardson, 2 Hare, E. 530 ; Weatherby v. St. Giorgio, 2 Hare, E. 624, 626 ; Hawkins v. Hawkins, 1 Hare, R. 543, 546. But see Montgomerie v. Marquis of Bath, 3 Ves. 560. In Goodson v, Ellison, 3 Euss. E. 583, where a bill was brought by a purchaser of a portion of the trust property from the cestuis que trust against the trustee for a conveyance of the legal title, Lord Eldon at first thought, that all the cestuis que trust should be made parties to the bill, and that the trustee was not bound to convey a portion of the estate ; but was entitled to be delivered from the whole trust. But afterwards a decree was made without there being made parties. It is not very easy to perceive, from the report, how Lord Eldon escaped from his original difficulty; for no reason is given for his change of opinion. 212 EQUITY PLEADINGS. [CH. IV. ject-matter of the trust.^ And if all the trustees are dead, and the estate is an estate of inheritance, the heir, or other proper represen- tative in the realty, of the survivor, should be made a party. But if the trust be of a term, or other chattel interest, the personal rep- resentative of the survivor only need be made a party .^ If the trus- tee has assigned his trust absolutely, the assignee should be made a party in his stead ; and the trustee need not be made a party, un- less the assignment is a breach of trust.® If, pending a suit, some of the trustees of a charity should die and others resign, and new trustees are appointed before any decree, they ought to be made parties to the suit ; otherwise, as they come in under the founder, and not under the former trustees, for whom they are substituted, they will not be bound by the decree.* § 212. There are, however, certain qualifications of the general rule, some of which have been already incidentally noticed, either standing upon distinct principles, consistent with the rale itself, or admitted as just exceptions to it. In the first place, if there is a ' See Post, § 213. See Griffith v. Vanheythuson, 15 Jurist. 421 ; S. C. 4 Eng. Law & Eq. Kep. 25. ' Cooper, Eq. PI. 34; 1 Eq. Abridg. 72. ' Cooper, Eq. PI. 34; Bromley v. Holland, 7 Ves. 3, 11; S. C. Cooper, R. 19; ante, § 153; Burt v. Dennet, 2 Bro. Ch. R. 225. The different forms of suit by a cestui que trust in respect of claims against the trustees and strangers, as debtors, or liable to the trust, are thus commented on by the Vice-Chancellor Shadwell in Lund v. Blanchard, 4 Hare, R. 28. " It is difficult to lay down any general rule as to the frame of a suit by a cestui que trust in respect of claims against strangers, as debtors, or liable to the trust, by reason of the misconduct of the trustees, or parties to whom the stranger is primarily liable. There are, apparently, three forms of suit applicable to such cases, according to circum- stances. First, the cestui que trust may not be entitled, or, at feast, not abfe usefully to do more than compel his trustees to allow him to sue the third party at law, as in the case of a claiin for unliquidated damages, and no collusion be- tween the debtor and the trustee. Secondly, the relief against the third pariiy may be such as a court of equity will administer, and the cestui que trust may be entitled to sue the trustees and the third party jointly, b^t be bound to con- fine his suit to that specific matter in respect of which alone the third party is liable, and not at liberty to make it part of a suit for the general administration of the trust, as in Salvidge v. Hyde, (Jac. 151,) and Pearse v. Hewit (7 Sim. 471.) Thirdly, there are cases in which the third party, against whom a limited demand is made, may properly be made a party to a suit for the general admin- istration of a trust, with which, except in respect of that limited demand, he has no concern. Attorney-General v. Cradock (3 Myl. & Cr. 85) ; Salvidge v. Hyde (Jac. 153, per Lord Eldon)." * Attorney-General v. Foster, 2 Hare, R. 81. §211-213.] PARTIES TO BILLS. 213 certain and fixed trust fund, and each cestui que trust has a cer- tain aliquot part in it, distinct from the others, so that there is no common interest in the object of the bill, the others need not (as we have seen) be made parties.^ Thus, where the object of a bill, brought by an assignee of one seventh part of an ascertained fund, standing in the name of trustees, was to compel the latter to trans- fer to him his seventh part in the trust fund, it was held, that the cestuis que trust of the remaining six seventh parts were not proper parties, and a demurrer by them on that account was allowed.^ § 213. In the next place, if there are several trustees who are all implicated in a common breach of trust, for which the cestui que trust seeks relief in equity, he may bring his suit against all of them, or against one of them separately, at his election ; ^ for, * Ante, § 207 a; Smith v. Snow, 3 Madd. K. 10 ; Hares v. Stringer, 15 Beav. 206. ' Smith V. Snow, 3 Madd. E. 10; Ante, § 207 a; Perry v. Knott, 5 Beavan, K. 293. See Montgomerie v. Marquis of Bath, 3 Ves. 560, and Lowe v. Morgan, 1 Bro. Ch. R. 368, and Mr. Belt's note; Ante, § 207 ; Hutchinson v. Tancred, 2 Keen, E. 675. But it would be otherwise in a case where there had been a breach of trust, and the whole fund was not forthcoming. Lenayhan v. Smith, 2 Phillips, 301, where Lord Chancellor Cottenham disapproved of the case of Perry v. Knott. See also Wyllie v. EUice, 6 Hare, 510 ; Penny v. Penny, 15 Jurist, 445 ; S. C. 4 Eng. Law & Eq. Eep. 55. ' Walker v. Symonds, 3 Swanst. E. 75; Franco v. Franco, 3 Ves. 75. See Chancellor u. Morecraft, 11 Beavan, 264. Ex parte Angle, Barn. Ch. E. 423; S. C. 2 Atk. 163 ; Wilkinson v. Parry, 4 Eussell, E. 272, and Mr. Eussell's note ; May v. Selby, 1 Younge & Coll. New E. 239 ; Bridget v. Hames, 1 CoU- yer, 72. But in Munch v. Cockerell, 8 Sim. E. 219, the vice-chancellor held the contrary doctrine, and that all should be joined. See Ante, § 76 6; Post, § 214 and note. Whether this case is maintainable in opposition to the other authorities, may admit of question. Why should not a cestui que trust be at liberty to waive his rights as to some trustees, and pursue them against others, where all are liable in solidof See Post, § 214 a. It is but justice to the learned vice-chancellor to give his reasoning at large in the case of Munch v. Cockerell, and to show the manner in which he disposes of the language used in the former authorities. "I have read," says he, "through the report of Walker v. Symonds. Now that case itself affords one instance of what was thought at least to be the rule in the profession ; because the representatives of Donnithorne and Griffith, the two deceased trustees, were made parties, along with the surviving trustees ; and I observe that Lord Eldon nowhere lays down the general proposition that if there be three trustees who have committed default, the suit may, at the option of the plaintiff, be brought against one only. He says no such thing ; but what he does say is, that when three trustees are involved in one' common breach of trust, the cestui que trust, suffering from that breach, and proving that the transaction was neither authorized nor adopted 214 EQUITY PLEADINGS. [CH. IV. in such case, the tort may, by analogy to the law, be treated as several, as well as joint. Again ; if a bill is brought by one trustee by him, may proceed against any or all of the trustees. 3 Swanst. 75. But his lordship does not tell us whether, when he uses the words 'may proceed,' he means that they should apply to proceedings by suit, or to proceedings on a decree which has been obtained in a suit. There is a difference between bringing the suit, originally, against all that were defaulters, and then, when a decree has been obtained, proceeding on the decree against one of them only, and proceeding originally, in framing the suit against one defaulter only. The language of Lord Eldon is so general on the point, that I do not take it to be a general authority for the proposition, that, where several trustees have made default, the suit may, at the option of the plaintiff, (unless there be special circumstances in the case,) be brought, originally, against one only. It may constantly happen, that there has been default in some trustees, affecting por- tions of the trust fund ; but, if there be other trustees, that represent the fund, it is quite clear, that that, which is the fruit of the suit, must be restored as part of the fund, and must be handed over to the other trustees. Besides, it seems to me that this proposition, which is stated to have fallen from Lord Eldon, was laid down, not with reference to anything which took place in the course of discussion prior to the pronouncing of the judgment, but when a discussion arose as to the form of the decree, after the substance of the judgment had been pronounced. And it seems to have been a very special case ; because Donni- thorne, who was the principal defaulting trustee, died first ; and it appears that Isaac Harris, who was his representative, had, by a sort of composition deed, amalgamated his own assets together with those of his father, so as to form a general fund for the relief of his father's creditors ; and Lord Eldon thought that it would be exceedingly difficult for the plaintiff, Mrs. Walker, to proceed against the assets of Nicholas Donnithorne, without abandbning her claim against the other two ; and she could not very well go on against the other two without abandoning her claim against the assets of Nicholas Donnithorne. And, with reference to a state of circumstances so very singular as those in that case, his lordship did assert the general proposition, which it attributed to him in the report; and he did, in point of fact, do this; he dismissed the bill 'as against Isaac Harris, without costs, and allowed the plaintiff to go on against the other two trustees, taking care that it should be inserted in the decree, that all demands which Mrs. Walker might have under the trust deed, or against the assets of " Donnithorne, as assets, the surviving trustees would be entitled to enforce ior their own benefit. See 3 Swanst. 89. That was entirely upon the special cir- cumstances of the case. The case of Wilkinson v. Parry, 4 Buss. 272, furnishes another instance of what was the opinion of the party who prepared the bill in that case ; for not only was Nicholson, who was the defaulting trustee, made a party, but Sherwin also was made a party. In that case, the master of the rolls did not say that it was competent to the plaintiffs, at their own option, to proceed against Nicholson only ; but that, if Sherwin had been made a party, no relief could have been had against him. The bill was filed against Nichol- son and Parry ; and the objection was, that Sherwin was not a' party ; but the master of the roUs said, that, if Sherwin had been made a party, the biU must § 213.] PARTIES TO BILLS. 215 against the other to compel the latter to replace the trust stock, or to give security for it according to his own engagement solely with have been dismissed as against him. The circumstances of that case were as follows : Nicholson and Parry were originally trustees, and Nicholson became desirous of retiring from the trust, and Sherwin was appointed a trustee in his place, and executed the deed ; but, before he acted, he intimated a wish to be discharged from the trusteeship ; and then the deed was actually prepared, appointing Parry to be a sole trustee ; but that deed was not executed by Sherwin. But what was the special circumstance in that case ? Sherwin was a trustee, and he never had acted ; and the master of the rolls, by saying that the bill must be dismissed as against him, took that view of the case. That case is no authority whatever for stating, that, where complaint might lawfully be made against one of the trustees, it is not necessary to make the others, against whom no complaint has been made, parties to the bill. It shows only that, where a person had the character of trustee, but, de facto, was not a trustee, it was not necessary to make him a party ; and, inasmuch as the bill was filed not against Nicholson only, but against Nicholson and Parry, it is one example, amongst many others, of the necessity of making all the trustees parties. In the report of the case of Walker v. Symonds, instances are given, in the notes, to prove a proposition which I should have thought hardly required proof, namely, that certain acts, mentioned in the notes, may be considered as defaults, for which the trustee may be liable. But in the very first of those cases, the case of Bradwell v. Catchpole, Mayhew had disappeared, but had never an- swered, nor could he be found to be served with the process of the commission of rebellion ; and, as he had not been served with a subpoena to hear judgment, there could be no decree against him ; but the process of contempt having been carried on against him to the utmost extent, the other defendants could not object for want of parties. That admits, that, but for that circumstance, the objection might have been made. I see that Mr. Kussell, in his report of Wilkinson v. Parry, states what the general rule is. He says : ' Yet cases of breaches of trust seem to have been an exception ; and it has been held, that a cestui que trust may proceed against the surviving trustees alone, without bring- ing before the court the representatives of the deceased trustee, who were involved in the same acts of misconduct.' Mr. Russell refers to the case of Ex parte: Angle, Barnard, 423, S. C. 2 Atk. 163, and also to the decision of Lord Eldon in Walker v. Symonds, on which I have commented. But it does not appear to me, that Ex parte Angle justifies the general proposition, that it is competent to the plaintiiF, at his option, to select only some of the trustees. It justifies the position that Mr. Russell lays down, namely, that it has been so held; because it was so held in Ex parte Angle : but we must look at the circumstances of that case. The proceeding in Ex parte Angle was founded on the statute 4 Anne, ch. 14, which regulated the way in which pro- ceedings should be had, where upon the petition of persons who had suffered by fire and other calamities, undertakers were authorized to collect money for the benefit of the sufferers ; and, in that case, it appeared that there were, originally, seventeen managers, and seven were dead ; and it was submitted, on the.part of the survivors, that the representatives of the managers who were dead 216 EQUITY PLEADINGS. [CH. IV. the other trustee ; in such a case the cestuis que trust need not be made parties ; for they could not found any right on their own part upon any such engagement, as they could have no privity with it.i § 214. In the next place, the frame of the particular bill may also furnish a ground to dispense with persons, who should -other- wise be made parties.^ Thus, for example, if a bill is framed for a general account of a trust fund in the hands of trustees, all of them ought to be brought before the court. But Lord Hardwicke said it was not neces- sary to bring those representatives before the court, and that an order for account- ing ought to be made against the survivors. If you look at the 4th section of the act, you will see that it directs that the undertakers shall, within two months, account before one of the masters of the Court of Chancery, and that the master shall have power, by the common methods of the court, to examine into all frauds committed by the undertakers and their agents, or any other person concerned for acting under them, and report the same to the court ; which report, being confirmed by the court, it shall be in the power of the lord chancellor to impose such fine and costs on every such ofiender as the nature of the case shall require. That, of course, implies that it was in the discretion of the judge to impose such fine and such costs on each or any of the parties as the court thought proper, and, of necessity, it gives the court the jurisdiction to proceed against some and omit others ; because it is useless to say that the proceeding shall be against all, when it is in the power of the court to impose fines and costs upon such only as the court shall think right. It appears to me, therefore, that this section of the act did entirely justify Lord Hardwicke in saying that it was not necessary to bring the representatives of the deceased parties before the court. Besides, it seems that under the act the court might proceed in a summary way, and might dispense with the appearance of some of the offenders. The act, indeed, imposed certain forfeitures, and a forfeiture might have been recovered from the representatives of those who were dead. But it might have been thought inconvenient, by that learned lord, that any action thould be directed against the representatives of those who were dead; and, therefore, he determined to impose the fines and costs on those only who were alive, and to enforce payment of them by the pro- cess of the court. It seems to me, therefore, that the position laid down by Lord Eldon, in Walker v. Symonds, does not support the general, proposition contended for; and the whole practice of the profession is, I believe, against it; and, therefore, my opinion is, that, in this particular case, the representatives of Evelyn and Logan, ought to be made parties." See Ante, § 127, 129, 139, 211 ; Post, § 214, 228. In Cunningham v. Pell, 5 Paige, K. 607, it was held, that the directors of a corporation were liable to the stockholders in equity for a fraudu- lent breach of trust ; and that a suit might be brought against some of the direc- tors for such breach of trust, without making all the directors parties. 1 Franco v. Franco, 3 Ves. 75; Ante, § 139; Calvert on Parties, ch. 1, § 1, 7, 8; Post, § 221, 228; Horsley v. Fawcett, 11 Beavan, 565; May v. Selby, 1 Younge & Coll. New R. 235. But see Chancellor v. Morecraft, 11 Beavan, 262. » Ante, § 127, 129, 139 ; Post, § 214, 228. §213 -214 as.] parties to bills. 217 sho\ild be made parties. But if the bill is so framed as only to seek an account of so much of the trust fund, as has come to the hands of a particular trustee, he alone is a necessary party ,^ at least un- less the bill should charge a breach of trust in all the trustees.^ So, if a legatee has received but part of his legacy, by a misrepre- sentation of the residuary legatee, and the executor has paid over all the remaining assets to the residuary legatee, a bill may be brought by the defrauded legatee for what remains due to him against the residuary legatee and the representative of the execu- tor, without making the representative of the testator a party .^ § 214 fl. So, if a bill should contain allegations, which show that persons, who otherwise would ordinarily be proper parties, have no interest in the controversy, and have no title to, and make no claim to any interest, such allegations in the frame of the bill, if well founded, will dispense with the necessity of their being made parties. Thus, for example, in cases where an executor ^ Selyard v. Harris's Executors, 1 Eq. Abridg. 74; Ante, § 128. See Munch V. Cockerell, 8 Sim. K. 219. It has been suggested, by a learned writer in the London Law Magazine for May, 1839, p. 242, that it may be doubtful whether Selyard v. Harris's Executors can be safely relied on as an authority, since Munch V. Cockerell. I do not feel the full force of the doubt. The cases are distinguishable. In the former case, a discovery was sought against the only trustee, who had transacted the business of the trust ; and the Lord Chancellor held, that as an account was sought only of what came to his hands, the repre- sentatives of the other trustees who were dead, need not be made parties. There seems to have been no allegation of any joint breach of trust. In the latter case, a breach of trust by all the trustees was relied on. But it seems to me, that the decision, of Munch v. Cockerell cannot easily be reconciled with the doctrine of Lord Hardwicke in Ex parte Angle, Barn. Ch. E. 423, S. C. 2 Atk. 163, and of Lord Eldon in Walker v. Symonds, 3 Swanst. R. 75, not- withstanding the ingenious reasoning of the vice-chancellor. Ante, § 213, note. The same learned writer in the Law Magazine intimates that the case of Selyard v. Harris's Executors was not a dispensation with necessary parties ; for the other trustees were not necessary parties, as the object of the bill did not require any relief from them. This may be true, but it is a refinement upon the use of terms, which it does not seem important to discuss ; and I am content to leave the text as it stands. See Ante, 212 ; May v. Selby, 1 Younge & Coll. New E. 235. " Munch V. Cockerell, 8 Sim. E. 219. This qualification of the text is inserted upon the sole authority of Munch v. Cockerell. Whether it can be supported may admit of some question ; and it is not easily reconcilable with the language of some other cases. See Ante, § 213, note, and May v. Selby, 1 Younge & Coll. New E. 235. ' Beasley v. Kenyon, 3 Beavan, E. 544. EQ. PL. 19 218 EQUITY PLEADINGS. [CH. IV. would otherwise be a proper party, it is common enough to allege in the bill, in order to prevent the necessity of making him a party, that he has accounted for all his receipts.^ So, where a bill was brought by the legatee of a legatee against the trustees of stock, grounded upon a bequest of the reversionary interest in that stock to the original legatee after the death of the testator's wife, who had since died, and it was averred in the bill that the executors of the successive testators have all assented to the legacy ; it was held unnecessary to make any of the executors parties to the bill ; for no decree could be had against them ; and the legacy must be deemed to have absolutely vested in the original legatees, and so in the other legatees successively.^ § 215. [*It has been stated, that where the trustee has the ab- solute power of disposing of property he is the only necessary par- ty .^J But if the trustees have no such absolute power of disposi- tion, (as if they are trustees merely to convey to uses,) then the persons entitled to the benefit of the trust must also be made parties.* § 216. In the next place, (as we have already seen,)^ where there is a general trust for creditors, or others, whose demands are not distinctly specified in the creation of the trust, as their num- ber, as well as the difficulty of ascertaining who may answer a general description, might greatly embarrass the due execution of the trust, courts of equity will dispense with all the creditors, and others interested in the trust, being made direct parties.^ And it will be sufficient, if the bill is brought to enforce the due execution of the trust, that it should be stated to be brought on behalf of all interested.^ And if the bill is brought adversely to the trust by a third person, it will be sufficient to make the trustees parties.^ * Per Lord Cottenham, in Mare v. Malaohy, 1 Mylne & Craig, 577. ' Smith V. Brookshank, 7 Simons, R. 18. ' Ante, § 149. * Mitf. Eq. PI. by Jeremy, 175, 176 ; Ante, § 149. * Ante, § 149, 157. ' Ante, § 102, 149, 150, 157. ' Douglas V. Horsfall, 2 Sim. & Stu. 184; Mitf. Eq. PL by Jeremy, 174, 176; Ante, § 102, 103 ; Russell v. Lasher, 4 Barbour, 237. ' Anon. 1 Vern. 261. But quasre, if the trust be for creditors, who shall ex- ecute the assignment within a limited time, and those who do so execute it are not very numerous, whether all of such creditors should not be made parties by name. Harrison v. Stewardson, 2 Hare, R. 530, 532 ; Ante, § 102, 103, 149, 150, 206; Post, § 217. §214 a -217.] PARTIES TO BILLS. 219 [* 216 a. In all cases of assignments for the benefit of creditors, the assignees sufficiently represent the creditors, except when a claim is attempted to be asserted on the behalf of the creditors ad- versely to that of the assignees.^ But where a bill i? brought to set aside a conveyance by the debtor, as being fraudulent as to creditors, the debtor should be joined as defendant, and the court should require that he be joined before final decree, although no exception is taken by the other parties.^ And where a creditor's bill assails a deed either for the purpose of having it rectified, or set aside, all parties to the deed are necessary parties to the suit, and without their joinder no valid decree can be made.^ Equity treats the assignee of contracts, not negotiable, as the party in in- terest, and will allow him to bring a bill in his own name.*] § 217. It is upon this same ground of the numerousness of par- ties, as well as upon the ground of a virtual representation, and of the general nature of the trust, that it has been laid down as a general rule, that trustees of real estate for the payment of debts or legacies, may ordinarily sustain a suit, either as plaintiffs or as defendants, without bringing before the court the creditors, or lega- tees, for whom they are trustees, which in many cases would be almost impossible.^ But this rule, as we have seen, seems to ad- mit, if it does not absolutely require, some qualification.^ Hence, [* ' Coe V. Beckwith, 31 Barb. 339. ' Shaver v. Brainerd, 29 Barb. 25. " Ward V. Hollins, 14 Md. 158. * Dixon V. Buell, 21 Illinois, 203.] * Ante, § 102, 150; Mitf. Eq, PI. by Jeremy, 174. But see Harrison v. Stew- ardson, 2 Hare, K. 530, 532, cited ante, § 140, 141, 150. « Ante, § 94, 140, 141, 150, 207, 208; Weatherby v. St. Giorgio, 2 Hare, K. 624, 629 ; Harrison v. Stewardson, 2 Hare, R. 530, 532 ; Hawkins v. Hawkins, 1 Hare, B,. 543, 546. In this last case, Mr. Vice-Chancellor Wigram said : " The general rule of this court is, that all persons interested in the subject of a suit must be parties, except where their numbers are so great as to render the application of the rule highly inconvenient or impracticable. And therefore, where the interests of a class, as of the children or next of kin of 'a particular person, are concerned, the whole of those, who constitute the class, must be parties, and the court must be satisfied, by evidence of some kind, that they are 80. It is admitted, that, in the case of the distribution of a fund, all the parties entitled to it must be present ; and that, at least as a general rule, the mode of proving that they are present, is by inquiry, before the master. Whether the same mode of proof is invariably required when the question is between the class, and one claiming adversely to the class, I am not called upon now to de- cide. It is sufficient, for the present case, to say, that some proof of the fact, ^20 EQUITY PLEADINGS. [GH. IV. too, although the general rule is, that in the case of an appoint- itient of a personal fund by the will of a feme covert, all the ap- pointees should be made direct parties to the bill for a distribution of the fund by the executor, who is a constructive trustee ; yet the rule yields, where the appointees are very numerous ; and, in such a case, on account of the inconvenience, a bill may be main- tained by some on behalf of all.^ § 218. Eighthly, and lastly, on matters of account.^ In many of the cases referred to imder the preceding head, persons were re- quired to be parties simply upon the ground, that they were proper parties to an account to be taken in the cause. In many of them, the doctrine, hgwever, turned upon various and more complicated considerations. It seems, therefore, fit to say a very few words in this place as to parties in matters of account in general. An account may be sought by several persons against one, or by one against sev- eral. In each of these cases, all the persons on each side, having an interest in the account, are necessary parties, and should accordingly be made such, either as plaintiffs, or as defendants. Thus, for ex- ample, as we have seen, if an account is sought by or against part- ners, all the partners are proper and necessary parties to the suit.^ So, if two executors are bound to render an account, they should both be made parties.* But where, upon a bill for a general account between A and B, a question arose as to certain items, whether they ought to be charged against A or against C, with whom A and had mutual dealings, it was held that C was not a necessary party .^ that the parties interested are before the court, is necessary. In respect of the practical necessity of the rule, I cannot see that there is any difference between a case calling for a declaration of right to a fund, — which is not made, unless it is to have some effect, — or the distribution of a fund, which is sought to be made adversely to a class, — and the case of members of that class seeking distribution amongst themselves. A reason that the court requires more than the mere statement of the parties themselves, that all the members of the class are before the court, is, that, if that statement were deemed sufficient, a fradulent agree- ment might be made between some parties to the exclusion or injury of Others." See also Baker v. Harwood, 1 Hare, K. 327. ' Manning v. Thesiger, 1 Sim. & Stu. 106 ; Court v. Jeffery, 1 Sim. & Stu. 105 ; Ante, § 204 and note. ' See Calvert on Parties, ch. 3, § 1, p. 118-138 ; Edwards on Parties, 178,179. ' Moffat V. Farquharson, 2 Bro. Ch. R. 338; Evans v. Stokes, 1 Keen, R. 24; Stafford v. City of London, 2 Eq. Abridg. 166 ; Ante, § 167. * Cowslad V. Cely, Prec. Ch. 83 ; Scurry u. Morse, 9 Mod. R. 89. ' Darthez v. Clemens, 6 Beavan, R. 165. §^217- 219 O.] PARTIES TO BILLS. 221 § 219. Upon similar grounds, wherever different persons are interested in an account, although not in the same right, they should all be joined ; as, for instance, heirs and personal represen- tatives, residuary legatees and distributees, mortgagors and mort- gagees, and their assignees ;i persons receiving and holding assets in succession in virtue of their representative character ;2 and per- sons having distinct interests in the same security, either jointly, or in succession.^ But it seems that a cestui que trust, or other principal, vrould not be justified in filing a joint bill for an account against the trustee, and an individual or sub-agent employed by him in the execution of the trust, who had received money belong- ing to the cestui que trust, and dealt with it according to the di- rection of the trustee.* [* § 219 a. One creditor, secured in a deed of trust for the ben- efit of all creditors, cannot maintain a bill for an account of the fund, without making all creditors, who are preferred and all in the same class with him, parties, either as plaintiffs or defendants.^ And it would seem, that all the creditors should be made parties ' Ante, § 172, 173, 181, 185, 186, 196, 201. ' Ante, § 159-176; Hindmarsh v. Southgate, 3 Russ. R. 328; Holland v. Prior, 1 Mjlne & K. 237 ; Anderson v. Gaunter, 2 Mylne & K. 763. ' Palk V. Clinton, 12 Yes. 48; Hobart v. Abbott, 2 P. Will. 643; Norrisii v. Marshall, 5 Madd. K. 475. * Lockwood V. Abdy, 14 Simons, K. 437, where the Vice-Chancellor, Shad- well, says : " It has been propounded, as a general proposition, that it is the right of a party who has appointed a person to act for him and who was author- ized by him to appoint an assistant agent, to filQ a bill against them both, in respect of that which is, strictly, the agency of one. That proposition, if it be maintained, will have most extensive consequences ; because, in cases where gentlemen act as trustees, they must, of necessity, employ solicitors, receivers, bankers, and agents of various kinds; and is it to be said, that, because the trustee is responsible to his cestui que trust, therefore the cestui que trust is justi- fied in filing a joint bill against the trustee and against every individual employed by him in the execution of the trust, who may have received money belonging to the cestui que trust, and dealt with it according to the direction of the trustee ! It seems to me that it would be a most fearful thing to establish such a proposition. I admit that, if a case were brought forward it which it was distinctly made out that the trustee and his agent had been corruptly abusing the power which the cestui que trust had vested in the trustee, the court would interfere." [* * Murphy v. Jackson, 5 Jones, Eq. 11. The form of proceeding in creditors' bills, where a few sue on behalf of all who may elect to come in before the master, is extensively considered by the Supreme Court of the United States in Ogilvie V. Knox Insurance Co. 2 Black, 539. 19* 222 EQXnTY PLEADINGS. [CH. IV. to the account, as all are interested in the fund. But in a bill to protect the interest of remainder-men it is not required, that all the joint owners of the remainder should be joined.^ A trustee, however, cannot proceed to vindicate the title of the. trust estate, without making the cestuis que trust parties to the suit.^ But where the cestuis que trust claim no account against a co-trustee, they may maintain a bill for an account against the trustee, or his representative, if that trustee had the exclusive possession and con- trol of the trust estate.^] § 220. Sometimes, where there is a defect of parties, which is made apparent at the hearing, and is not previously objected to, the court will proceed to a final decree, if the plaintiff will under- take to give effect in the cause to the utmost rights, which the absent parties could have claimed, if they had been before the court, and those rights are such, as do not affect the rights of the defendants, who are before the court.* § 221. We may here also advert to a point of considerable prac- tical importance, (of which incidentally notice has been already taken,) and that is, that in many cases it furnishes no ground of objection, that persons are joined as parties in the suit, who, if they had been omitted, could not have been deemed necessary parties ; for, in a variety of cases, it is in the option of the plain- tiff to join them, or not, as defendants.^ Thus, for example, if a trustee has fraudulently or improperly parted with thfe trust prop-/ ^ Brantley v. Kee, 5 Jones, Eq. 332. '' Blake v. AUman, 5 Jones, Eq. 407. » Fleming v. Gilmer, 35 Alabama, 62. And where the cestuis que trust do not desire to contest a sale by the trustee, they need not be joined in a bill to quiet the title of both. Gridley v. Wynant, 23 How. U. S. 500. The trustees are the proper parties to represent the interest of the cestuis que trust, in all cases where they assert no adversary claim. New Jersey Co. v. Ames, 1 Beasley, 507. And where a bill is brought against a corporation for the sale of its property and fran- chises, for the payment of its debts, if the stockholders are necessary parties, one or more may defend for all. Louisville T. Co. v. Ballard, 2 Met. (Ky.) 265. _ It is not regarded as any objection that a party in interest, originally, is not jomed m the suit, if it appear that hjs interest has been transferred to the plain- tiff. Ashley v. Sumner, 4 Jones, Eq. 121.] * Harvey v. Cooke, 4 Russ. K. 34, 54, 55 ; Post, § 236. ' Ante, § 153, 156, 214 ; Post, 229, 542. The 29th Order of the English Orders m Chancery, of 1841, provides, " That where no account, payment, con- ' veyance, or other relief is sought against a party, but the plaintiff shall require such party to appear to and answer the bill, the costs occasioned by the plaintiff having required such party so to appear and answer the biE, and the costs of all § 219 a - 223.] parties to bills. 223 erty, the cestui que trust may proceed against the trustee alone, to compel satisfaction for the breach of trust, or he may at his elec- tion join the assignee also, if he was a party to the fraud, or if he seeks redress against him.^ So, if a pawnee, or other person, law- fully in possession of jewels, should deliver them over to a third person for custody, he may have a bill for a redelivery and account of them without making the pawner or his representatives a party .^ So, a person, who is a mere nominal or formal party, may some- times be dispensed with, although, if he were joined in the suit, there would be no ground for any exception on his part.^ § 222. Hitherto we have spoken of cases \v;here private persons only are interested in the subject-matter of the suit. But the same principle is applicable to cases where the government itself is a party in interest.* In all such cases, it is essential, that the At- torney-General, who is tlie proper public officer of the government, should be made a party, either as plaintiff, or as defendant, to protect and assert the interests of the public.^ Hence it is, that in cases of public charities, the court always requires the Attorney- General to be made a party to the suit ; because the crown or gov- ernment, as parens patrice, superintends the administration of all charities, and must, in cases of this sort, act by its proper officer, who is the Attorney-General.^ [* § 223. The rules of equity pleading, in regard to the neces- sary parties to a suit, which we have thus far educed from the cases, although they may present some apparent anomalies, and some needless refinements and technicalities, perhaps, will be proceedings consequential thereon, shall be paid by the plaintiff, unless the court shall otherwise direct." The same rule has been adopted by the Supreme Court of the United States. See 54th Eule of the Equity Rules, January Term, 1842. 1 Bailey v. Inglee, 2 Paige, E. 278, 279 ; West v. Randall, 2 Mason, E. 197, 198 ; Lockwood v. Abdy, 14 Simons, R. 437 ; Ante, § 137. ^ Saville V. Tancred, 1 Ves. 101 ; Calvert on Parties, ch. 1, § 1, p. 7 ; Ante, §213. ' Butler V. Pendergrass, 16 Vin. Abridg. Party, 248 ; S. C. 4 Bro. Pari. Cas. 174; Fletcher v. Ashburner, 1 Bro. Ch. E. 497, 498. See also Saville v. Tan- cred, 1 "Ves. 101 ; Calvert on Parties, ch. 1, § 1, p. 7, 8. * See Calvert on Parties, ch. 3, § 26, p. 301 - 308 ; Edwards on Parties, 60-62. * Attorney-General v. Brown, 1 Swanst. 265, 290, 291, 294 ; Cooper, Eq. PI. 17, 22 ; Mitf. Eq. PI. by Jeremy, 21, 22, and note, 30, 102, 169, 172. ° Wellbeloved v. Jones, 1 Sim. & Stu. 40; Mitf. Eq. PL by Jeremy, 17, 22, 30, 102, 169. 224 EQUITY PLEADINGS. [CH. IV. found in the main, we believe, in strict conformity with the purest principles of reason and justice ; and those instances, wherein this ■>' cardinal and essential element seems to be lost sight of, wiH, upon closer scrutiny we trust, be found to embrace only those few cases, where kn apparent departure from principle is in reality only car- rying out the true principle involved, under some complication or embarrassment, which, for the time, renders it less apparent.] § 224. In concluding this part of our subject, we may here quote the language of Lord Redesdale, as furnishing at once an admonition and a motive to further diligence, and to more copious inquiries into the true grounds of necessary parties, when new cases arise, which may require new applications of principles. "In some cases, however," (says that eminent judge,) "it may still remain a question of considerable difficulty, who are necessa- ry parties to a suit. It may, indeed, be doubtful, until the decision - of the cause, what interests may be affected by that decision ; and sometimes parties must be brought before the court to litigate a question, who had, according to the decision, no interest in the subject ; and as to whom, therefore, whether plaintiffs or defend- ants, the bill may be finally dismissed, although the coilrt may make a decree on the subject, as between other parties, which will be conclusive on the persons as to whom the bill may be so dis- missed, but which the court would not pronounce in their absence, if amenable to its jurisdiction. Sometimes, too, a plaintiff, by waiving a particular claim, may avoid the necessity of making par- ties, who might be affected by it, though that claim might be an evident consequence of the rights asserted by the bill against other parties. This, however, cannot be done to the prejudice of others.^ § 225. Let us now proceed to the consideration of the correla- tive inquiry, who ought not to be made, or who need not be made, parties to a bill in equity .^ And, here, the point most usually arises in relation to parties defendants, although it is by no means confined to them.^ § 226. In the first place, the rule, as to necessary parties, does not extend to all persons, who may be consequentially interested, ' Mitf. Eq. PI. by Jeremy, 179, 180; Williams v. Williams, 9 Mod. R. 299. See also Post, § 236, 237, 279, 509, 541, 544. ' See Calvert on Parties, ch. 1, § 3, p. 65-73. ' Post, § 229, 232, 236, 237, 279, 509, 541, 544. § 223 - 227.] PARTIES TO BILLS. 225 or affected by the suit ; as for example, in the case of a bill by a creditor for payment of his debt out of the assets of his deceased debtor, whether it is a suit brought for himself alone, or on behalf of all others.^ In the former case, all th« other creditors may be consequentially affected by the decree ; in the latter, all the lega- tees and distributees. § 226 a. Upon the like ground, where a bill is brought for a dis- covery merely, in aid of a defence in an action at law, no other per- son, except the actual plaintiff at law, should be made a party to the bill of discovery, although others may be beneficially interested in the subject-matter of the action at law. Thus, if an action at law is brought by an agent upon a policy of insurance, and the under- writers file a bill of discovery in aid of their defence to the suit at law, the bill should be brought against the agent alone ; and his principal, not being a party to the suit at law, ought not to be joined in equity, although he has the real interest in the suit.^ The same rule will apply to an agent bringing a bill for a discov- ery in aid of his own action at law ; for there the principal ought not to be joined as plaintiff, although he has a substantial interest.^ § 226 b. So, in the case of a common bill for the specific per- formance of a contract of sale of real estate, the only proper par- ties in general are the parties to the contract itself.* Special cases may indeed exist, in which the rule may be otherwise ; but they stand upon their own peculiar grounds. § 227. A person is not properly a party to a suit, between whom and the plaintiff there is no proper privity or common interest, but his liability, if any, is to another person. This may be illustrated by the common case of a bill brought by a creditor against an ex- ecutor or administrator for payment of his debt out of the assets.® To such a bill a debtor to the estate is, not ordinarily a proper par- ' Mitf. Eq. PI. by Jeremy, 170, 171, 175 ; Ante, § 140. ^ Irving ti. Thompson, 9 Sim. R. 17; Fenton v. Hughes, 7 Ves. 287. Lord Abinger decided directly the other way, in Glyn v. Scares, 1 Younge & Coll. 664. See also Taylor v. Longworth, 14 Peters, R. 172 ; Post, § 569. * Glyn V. Soares, 3 Mylne & Keen, 460 ; Irving v. Thompson, 9 Sim. R. 1 7 ; Fenton o. Hughes, 7 Ves. 287. The case might be different, if the bill were not only for discovery, but also for relief. Irving v. Thompson, 9 Sim. R. 1 7, 29; Taylor v. Longworth, 14 Peters, R. 172; Post, § 569. * Wood V. White, 4 Mylne & Craig, 460, 483. ' Utterson v. Mair, 2 Ves. jr. 95 ; Gedge v. Traill, 1 Russ. & Mylne, 281 ; 2 Story on Equity Jurisp. § 836 ; Lock wood v. Abdy, 14 Simons, R. 437. 226 EQUITY PLEADINGS. [CH. IV. ty ; because his liability is solely to the executor or administrator. But if a special case is made out, such as collusion between him and the executor or administrator, or insolvency of such personal representative, then, and in that case, the debtor may be made a party, as a means of uprooting the fraud, or of securing the property.^ § 228. The plaintiff may, in some cases, by the very structure of his bill, and the prayer of relief, obviate the necessity of making a person, otherwise interested, a party .^ Thus, where the plain- tiff alone is concerned in interest, as to a demand upon a person not made a party, he may, by a waiver of that claim, dispense with his being a party .^ So, if, at the hearing, the plaintiff waives any re- lief against a person not made a party.* § 229. The nonjoinder of a mere nominal or formal party will often be dispensed with, if entire justice can be done without him ; or if he cannot properly be made a party to the suit.^ Indeed, , the joinder or nonjoinder of mere nominal or formal parties, will not ordinarily be allowed by the court, as a valid objection to pro- ceedings under the bill.® § 230. No person need be made a party to a bill, who claims under a title paramount to that brought forward, and to be en- forced in the suit ; or who claims under a prior title or incum- brance, not affected by the interests or relief sought by the bill.' Thus, for example, on a bill to carry into effect the trusts of a will, a person, who claims by a title paramount to that will, ought not to be made a party, in order to bring into contestation his rights under such paramount title.^ So, where a bill seeks merely the application of the surplus of a trust fund, after discharging prior ' Ante, § 127, 129, 139, 167, 178, 214, 219. " See Ante, § 127, 139, 213, 214. ' Mitf. Eq. PI. by Jeremy, 179, 180; Williams v. Williams, 9 Mod. R. 299; Ante, § 127-130, 214. * Pawlet V. Bishop of London, 2 Atk. 296 ; Northey v. Northey, 2 Atk. 77. ' Butler V. Pendergrass, 4 Bro. Pari. Cas. by Tomlins, 174; 16 Viner Abridg. 248 ; pi. 5 ; Ante, § 221 ; Post, § 542. ' Wormley v. Wormley, 8 Wheat. 451 ; Ante, § 221 ; Post, § 542. ' Ante, § 148, 149, 193. ' Devonsher v. Newenham, 2 Sch. & Lefr. 207-212 ; Ante, § 161 ; Pelham v. Gregory, 1 Eden, R. 520 ; S. C. 6 Bro. Ch. R. 575 ; 3 Bro. Pari. Cas. by Tom- lins, 204 ; Eagle Fire Insurance Company v. Lent, 6 Paige, 635 ; Bond v. Pruitt, 8 Georgia, 305; Lange v. Jones, 5 Leigh, R. 192; Ante, § 148, 149, 161, 163. §227-232.] PARTIES TO BILLS. 227 incumbrances, the prior incumbrancers are not necessary par- ties.^ § 231. No person should be made a party, who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had.^ Upon this ground it is, that a person, who is a mere agent in the transaction, ought not to be made a party to a bill ; as, for example, an auctioneer, who has sold an estate, the sale being the matter in controversy ; ^ or a steward or receiver of the rents and profits, where the controversy is between the vendor and the vendee to a bill for a specific performance ; * or an attorney or solicitor, who has negotiated an annuity, to a bill to set it aside, on account of a defective memorial ;^ or an arbitrator to a bill, to enforce, or to set aside an award.^ [* § 231 a. And in a bill for the recision of a contract, although the notes and conveyances constituting the consideration have been made to an agent in his own name, the principal is the only proper party, as the agent is merely his trustee.'^] § 232. In cases, too, where the objection of a want of interest applies, it is, or may be equally as fatal, when applicable to one of several plaintiffs as it is when applicable to one of several defend- ants.* Indeed, in the former case, the objection is, or may be fatal to the whole suit ; whereas, in the latter case, it is fatal (if prop- erly taken and in due time) to the suit only against the defendant improperly joined.^ But in cases of this sort, if there is any charge of fraud connected with the transaction, in which the 1 Mitf. Eq. PI. by Jeremy, 175 ; Ante, § 148, 149. « Mitf. Eq, PI. by Jeremy, 160; 2 Eq. Abridg. 78, pi. 12 ; Smith v. Snow, 3 Madd. K. 10; West u. Randall, 2 Mason, R. 192, 197; Trecothick v. Austin, 4 Mason, R. 42; Petch v. Dalton, 8 Price, R. 12 ; 1 Harris, Ch. Pr. by Newland, 38, (1808); Le Texier r. Marquis of Anspaeh, 15 Ves. 164; Cooper, Eq. PI. 41, 42 ; 2 Madd. Ch. Pr. 146, 147 ; 2 Story on Eq. Jurisp. § 1499 ; Post, § 570. » Cooper, Eq. PI. 41, 42; Post, § 570; Ling v. Colman, 10 Beavan, 370; White V. White, 5 Gill. * Cooper, Eq. PL 42 ; McNamara v. Williams, 6 Ves. 143. * Cooper, Eq. PI. 42 ; 2 Madd. Ch. Pr. 146, 147. " Mitf. Eq. PI. by Jeremy, 160, 161; Cooper, Eq. PI. 178; Stewart w. East India Co. 2 Vem. 380 ; 2 Eq. Abridg. 78. [* ' Meller v. Whittaker, 23 Illinois, 453 ; Lyon v. Tevis, 8 Clarke, (Iowa,) 79.] « Ante, § 224; Post, § 236, 237, 509, 541, 544, 569. ' Makepeace v. Haythome, 4 Russ. R. 244 ; King of Spain v. Machado, 4 Russ. R. 225, 241 ; Hunter v. Richardson, 6 Madd. R. 89 ; Doyle v. Muntz, 5 Hare, 514; Mitf. Eq. PI. by Jeremy, 160, 161; Ante, § 224, 229; Post, § 236, 237,541-544,569. 228 EQUITY PLEADINGS. [CH. IV. agent, or steward, or attorney, or solicitor, or arbitrator, partici- pated, and it is so charged in the bill ; there, he may properly be made a party, [but he is not necessarily so ;^] for even if no other decree would be warranted by the circumstances of the case against him, he might be decreed to pay the costs of the suit, if his principal should happen to be, or should become insolvent.^ [But the practice of making a mere agent a defendant to a suit, and praying costs against him, has, of late, been called a practice of a very anomalous character, and open to serious objection :3 and it will not be extended to any cases, to which it has not already been applied. It seems to be limited to cases of fraud, as that word is generally understood in a court of equity, and does not apply where, though the agent acts erroneously, he acts openly and avowedly.*] § 233. Another exception has been sometimes made upon a ground not entirely satisfactory, and which may now be considered as of very doubtful authority. It is the case of a bankrupt, in which -it is admitted, that, although he ought not generally to be made a party to a bill against his assignees, touching his estate ; yet, if in such a bill any discovery of his acts, before he became a bankrupt, is sought, he may properly be joined and compelled to make the discovery .^ And the same proposition has been put in a more general form ; that where a person, having had an interest in the subject-matter, has assigned that interest, he may yet be ' Veazie v. Williams, 8 How. U. S. 134. ^ Cooper, Eq. PI. 42; Mitf. Eq. PL by Jeremy, 160, 161, 189; 2 Story on Equity Jurisp. § 1500; Bowles v. Stewart, 1 Sch. & Lefr. 227; Le Texier ij. Marquis of Anspach, 15 Ves. 164; Fenton v. Hughes, 14 Ves. 287-289; Stew- art V. East India Company, 2 Vern. 380 and note, and 14 Ves. 253 ; Lingood V. Bade, 2 Atk. 501 ; Lingood v. Croucher, 2 Atk. 395 ; Church v. Lequesne, 2 Ves. 315 ; Post, § 570. In such a case, the bill itself should pray costs against the agent, &c. ; for otherwise a demurrer would lie. Le Texier v. Marqujs of Anspach, 15 Ves. 164. The same principle applies to the case of a debtor to a testator's estate, who cannot ordinarily be joined in a creditor's suit against the executor for payment of his own debt; but he may be, if coUusion is charged between him and the executor. 1 Mont. Eq. PI. 45, 46, note (o) ; 2 Mont. Eq. PI. 141; Mitf. Eq. PI. by Jeremy, 158, 159; Elmslie v. Macaulay, 3 Bro. Ch. Bi. 624. ' See the remarks of the Lord Chancellor in Attwood v. Small, 6 Clark & Einn, 352. * Marshall v. Sladden, 7 Hare, 428. * Mitf. Eq. PI. by Jeremy, 161. § 232 - 233 b.] parties to bills. 229 compelled to answer with respect tb his own acts before the assign- ment.^ [* § 233 a. But although a bankrupt may be made a party to a biU of discovery in respect of fraudulent transactions, whereby he has acquired property which has passed to his assignees ; yet if the discovery is sought merely as incidental to relief prayed against the bankrupt, he is not a necessary party and may demur to the bill, as there is no reason why the same benefit may not be ob- tained by his testimony in the case, without making him a party to the suit.^ But it was held in this case, that where a solicitor is implicated in a case of fraud, he may be made a party to the bill seeking relief against the fraud, for the purpose of discovery, the only relief asked against him being that he should be ordered to pay the costs. ^ § 233 b. This question of the extent of the privilege of the solicitor against disclosing a fraudulent transaction passing be- tween himself and client has been much discussed, first and last, in the English equity courts. It was early declared by Lord Cranworth,* that the court cannot permit it to be said, that the contriving of a fraiid forms part of the professional business of an attorney, or solicitor. And the question was very recently exam- ' Mitf. Eq. PI. by Jeremy, 161. The whole doctrine has been shaken, if not overturned, in Whitworth v. Davis, 1 Ves. & Beam. 548 - 550, and Griffin v. Archer, 2 Anst. 478. Lord Redesdale's own mode of stating the proposition in the passage cited in the text, shows, that he deemed it doubtful. He has added : " It is difficult to draw a precise line between the cases in which a person, having no interest, may be called upon to answer for his own acts, and those in which he may demur, because he has no interest in the question. Thus, where a creditor, who had obtained execution against the effects of his debtor, filed a bill against the debtor, against whom a commission of bankruptcy had issued, and the persons claiming as assignees under the commission, charging that the commission was a contrivance to defeat the plaintiff's execution, and that the debtor having, by per- mission of the plaintiff, possessed part of the goods taken in execution for the purpose of sale, and instead of paying the produce to the plaintiff, had paid it to his assignees, a demurrer by ih6 alleged bankrupt, because he had no interest, and might be examined as a witness, was overruled, and the decision affirmed on rehearing. A difference has also been taken, where a person concerned in a transaction, impeached on the ground of fraud, has been made a party to a bill for discovery merely ; or as having the custody of an instrument for the mutual benefit of others." Mitf. Eq. PI. by Jeremy, 161, 162. [* " Gilbert v. Lewis, 1 De G. J. & Sm. 38 ; 9 Jur. N. S. 187. « Ibid. * Follett V. Jeffreyes, 1 Sim. N. S. 3 ; Post, § 601 a. EQ. PL. 20 230 EQUITY PLEADINGS. [CH. IV. ined by Vice-Chancellor Stuart, in Charlton v. Coombes ;i and it seems to be now regarded as requisite, in order to oust the privi- lege of the client, and unseal the mouth of the solicitor, as a wit- ness, to make the solicitor a co-defendant, so that the question of privilege shall be distinctly raised upon the face of the bill ; and that the fact of the decease of the client will make no diiference in this respect ; the privilege of the Solicitor still continuing.^ But there is no equity to maintain a bill against the representatives of a person who was accessary to a fraud, from which he derived no pecuniary' benefit, merely on the ground, that if alive, he might have been answerable for the costs.^] § 234. For the same reason a mere witness ought not to be made a party to a bill, although the plaintiff might deem his an- swer more satisfactory than his examination ; for he has no inter- est in the cause, and no decree can be had against him ; nor would his answer be evidence against his co-defendant. And he ought not to be harassed by the trouble or expense of a litigation, in re- spect to which he has nothing to gain or to lose.* § 285. There are some exceptions, however, to this general doc- trine, which have been introduced upon peculiar reasons, and whether satisfactory or not, are now well established. Thus, for example, the officers of a corporation, although they may be mere witnesses, may be joined in the defence in a suit against the corporation. The reason assigned for this distinction between the cases of individuals and the cases of corporations is, that.the former may be required to answer upon their personal and corporal oaths; whereas a corporation cannot be sworn, and therefore must put in its answer under its common seal only ; and however false its answer may be, the corporation can never be convicted of perjury. Under such circumstances, it has been thought allowable to com- pel the officers of the corporation to answer to the material facts upon their own personal oaths ; and thus to enable the plaintiff 1 9 Jur. N. S. 534. " Ibid. ' Walsham v.. Stainton, 1 H. & M. 322.] * Cooper, Eq. PI. 41, 42 ; Mitf. Eq. PI. by Jeremy, 188 : Wych v. Meal, 3 P. Will. 310, and Mr. Cox's note (1); Newman v. Godfrey, 2 Bro. Ch. K. 332; Plummer v. May, 1 Ves. 426 ; Fenton v. Huglies, 7 Ves. 287 - 290 ; Dummer v. . Chippenham, 14 Ves. 252; Whitworth u.- Davis, 1 Ves. & B. 550; Griffin v. Archer, 2 Anst. R. 478 ; Lloyd v. Lander, 5 Madd. R. 282 ; 2 Story on Equity, Jurisp. § 1449. § 233 b, 236.] parties to bills. 231 better to frame his bill, and better to draw and pen his interroga- tories towards obtaining a fuller discovery.^ And in truth it must be admitted, that the officers are generally the only persons who can give the information.^ For a like reason, the members of cor- porations may also be made parties to a bill, either for discovery alone or for discovery and relief, although they have no other in- terest, than as corporators, in the subject-matter of the suit.^ [* § 235 a. Considerable diversity of practice in the American states will be found to prevail, in regard to the proper parties in > suits on behalf of the public, whether as to municipal corpora- tions or public officers. Such suits in equity are more commonly instituted in the name of the state, or the people, as the proper representative of the public* But in one case where the com- plainant alleged that he was a citizen and resident of the county, and as such interested in the public welfare, it was held he showed such an interest as to justify his petition for an injunction to re- strain a public officer from the commission of an act which would be a public wrong.^] § 236. Haying stated these general doctrines in relation to the joinder and omission of parties, it may be proper to add in this connection, (although the matter will necessarily come in review hereafter,) that, if the want of proper and necessary parties is ap- parent on the face of tlie bill, the defect may be taken advantage of by demurrer.^ In many cases, and especially if the defect be vital to the character of the bill, and to the relief asked, the objec- tion may also be insisted upon at the hearing. And if the court ' Wych u. Meal, 3 P.Will. 310; Moodalay v. Morton, 1 Bro. Ch. E. 469; ■\VTiitworth v. Davis, 1 Ves. & B. 550 ; Dummer v. Chippenham, 14 Ves. 252 - 254 ; Cooper, Eq. PI. 42 ; Mitf. Eq. PI. by Jeremy, 160 and note, 189 ; Le Tex- ier ti. Marquis of Anspach, 15 Ves. 164, 165 ; Gibbons v. Waterloo Bridge Com- pany, 5 Price, R. 493 ; Brumley v. Westchester County Manuf. Company, 1 John. Ch. E. 366 ; 2 Story on Equity Jurisp. § 1500. " It seems, however, that although it is not an unusual rule, that the officers of a corporation may be made parties ; yet that a special ground, such as to peculiar information, should be laid. Thus, in Howe v. Best, 5 Madd. E. 19, where an officer of the Bank of England was made a party to a bill of discovery, when certain stock in question in the cause was transferred, it was held on demurrer, that he was not properly joined, because he was a mere witness. ' Glascott V. Copper Miners' Company, 11 Sim. E. 305. [* * People V. New York, 32 Barb. 35. " Collins V. Ripley, 8 Clarke (low.), 129.] • Post, 541 - 544. 232 EQXnXY PLEADINGS. [CH. IV. shall proceed to a decree, the decree may be reversed for error on this account.^ If the defect is not apparent on the bill, it may be propounded by way of a plea, or it may be relied on in a general answer .2 If it is insisted on only at the hearing, the court will often, if there are merits, allow the cause to stand over, in order to make the new parties ; or, if the bill is dismissed, it should be without prejudice.^ § 236 a. It is no answer to the objection of a want of proper parties, that the persons who are not parties, might, if made so, object that the bill is multifarious. Many bills may not be multi- farious as to some persons, interested in the whole subject-matter, which would be so as to others, interested only in part of it. But that is no reason for the court proceeding in the absence of any person, who ought to be present, as to any part of the case. It at most can only prove, that the plaintiffs have adopted a wrong course from the beginning ; and that the error is irremediable un- der the ordinary permission to amend by making parties.* § 237. If, on the other hand, the defect in the bill should be a • Cooper, Eq. PI. 33, 185 ; Mitf. Eq. PI. by Jeremy, 180, and the cases there cited; Pract. Beg. by Wyatt, 299; 1 Daniell, Ch. Pract. 384-388.; 2 Daniell, Ch. Praot. 37, 38; Whiting w. Bank of United States, 13 Peters, K. 14. The mere nonjoinder of a proper party cannot avail the defendant in a bill of re- view, unless it appears to his prejudice ; and there is the more reason for this rule, because the absent peraon is not bound by the decree, but may, in another suit, vindicate his rights. Whiting v. Bank of United States, 13 Peters, R. 14; Post, § 283, 509, 541, 544. ' Cooper, Eq. PI. 289 ; Mitf. Eq. PI. by Jeremy, 280 ; Homan v. Shiel, 2 Jones, (Irish) E. 164. ^ West V. Randall, 2 Mason, K. 181 ; Mechanics' Bank of Alexandria w. Setons, 1 Peters, K. 306; Hunt v. Wickliffe, 8 Peters, R. 215; Ante, § 73; Post, § 541, 544. The 40th Order of the English Chancery Orders of 1841, has altered materially the old rule. It provides, " That if a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or description 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." Ante, § 220. The same rule has been adopted by the Supreme Court of the United States. See 53d Rule of the Equity Rules of the Supreme Court of the United States, January Term, 1842. [* The same rule prevails extensively m practice, in the American states, it is believed. Ferguson v. Fisk, 28 Conn. 501 ; Chambers u. Robbins, Id. 552. But there are many cases where it would be inexpedient to pass a decree until all the parties had been heard.] * Lumsden v. Frazer, 1 Mylue & Craig, 589, 602 ; S. C. 7 Simons, R. 555; Attorney-General v. Poole, 4 Mylne & Craig, 17. § 236 - 237 a.] parties to bills. 233 joinder of improper parties., (as, for example, of persons having no interest, or mere witnesses,) in such a case if the defect is appar- ent on the face of the bill, it may be brought forward by a de- murrer by the party improperly joined ; or he may, at the hear- ing, in some cases, rely on it, as a ground for a dismissal of the bill as against him.^ If the defect is not apparent on the face of the bill, the party, improperly joined, may rely on the objection by way of a plea, or insist upon it in his answer.^ It is not safe, however, in any case, to rely upon the mere nonjoinder or mis- joinder of parties, as an objection to the hearing ; for if the court can make a decree at the hearing, which will do entire justice to all the parties, and not prejudice their rights, notwithstanding the nonjoinder or misjoinder, it will not then allow the objection to prevail.^ The true course, therefore is, to take it by way of de- murrer, when it is apparent, on the face of the bill, or, if not ap- parent, by plea, or by answer.* When the objection of want of proper parties exists, the court will ordinarily allow the defect to be supplied by an amendment of the original bill, as the stage of the proceedings, at which the objection is taken, may require.^ [* § 237 a. Sometimes one not a necessary party to the bill may be admitted on his own petition, in order to secure his inter- est or claim in the subject of the suit.^ As where the bill is brought for specific performance of a contract for the purchase of land, and the claimant asserts a paramount title to the land under ' Post, § 283, 509, 541, 544, 569; Little v. Buie, 5 Jones, Eq. 20; King v. Galloway, Id. 122. . ' Cooper, Eq. PI. 42 ; Mitf. Eq. PI. by Jeremy, 160, 161 ; Post, § 541, 544. ' Lambert v. Hutchinson, 1 Beavan, K. 277. See Griffith v. Vanheythusen, 15 Jurist. 421 ; S. C. 4 Eng. Rep. 25 ; Post, 283, 544 ; Pringle v. Crooks, 3 Tounge & Coll. 666. In this last case, a doubt was suggested, whether in any case a misjoinder of a defendant was a ground of demurrer. Post, § 544 and note. The very point as to a nonjoinder of a defendant arose in the case of Whiting V. Bank of United States, 13 Peters, K. 6 - 14 ; and it was there held, that unless the nonjoinder operated a prejudice to the rights of the other de- fendants, it could not be taken advantage of at the hearing, or upon a rehearing on a bill of review. See also Russell v. Clarke's Executors, 7 Cranch, 69 ; Elmendorf v. Taylor, 10 Wheaton, R. 152; Carneal v. Banks, 10 Wheaton, R. 181 ; Mallon v. Hinde, 12 Wheaton, R. 193 ; Mechanics' Bank of Alexandria V. Setons, 1 Peters, R. 306 ; Vattier v. Hinde, 7 Peters, R. 262 ; Boone's Heirs V. Chiles, 8 Peters, R. 5,32 ; Ante, § 232, 236 and note ; Post, § 541, 544. * Ibid. ' Post, § 541, 884. [* ' Carter v. Mills, 30 Mo. 432. 20* 234 EQUITY PLEADINGS. [CH. IV. the defendant, iu a form liable to be embarrassed by the decree. But we apprehend this will not ordinarily be done, unless where fraud or connivance is alleged, or conspiracy to defeat the interest set up by such claimant. § 237 b. And in some of the American states, the rule re- quiring all interests to be represented in the suit is not enforced, ■ as one of strict law, but is treated as one of discretion merely. And it is said if parties whose interests are apparent, are not joined, they may come in by petition and have the benefit of the proof already taken, and will not be driven to a second contest.^] § 238. Where a demurrer, or a plea, is put in for the waijt of proper parties, if a demurrer, it must appear, if a plea, it must be shown, who are the proper parties, not indeed by name, for that might be impossible, but in such a manner as t9 point out to the plaintiff the objection to his bill, and enable him to amend by adding the proper parties.^ Indeed, cases may occur of such > a nature, as even to require the names to be stated, if the more gen- eral description is not sufficient to enable the plaintiff to ascertain with reasonable certainty the names of the absent parties.^ For example, if it should appear in the case of a bill to enforce a rent charge for a charity, that other lands also were charged, it might be required in the plea to set forth who are the present owners of these lands, and their precise locality, especially if the transaction were of great antiquity, and the original description were loose and indeterminate.* ' Birdsong v. Birdsong, 2 Head, 289.] ' Mitf. Eq. PI. by Jeremy, 180, 181 ; Attorney-General v. Jackson, 11 Ves.- 369, 370 ; Post, § 543. See Attorney-General v. Poole, 4 Mylne & Craig, 1 7 ; 1 Daniel), Ch. Pract. 384 - 388. = Attorney-General v. Jackson, 11 Ves. 367-371. * Ibid. ; Attorney-General v. Wyburgh, 1 P. Will. 599 ; Attorney-General v. Shelly, 1 Salk. R. 163. §2.37 a -238.] general frame of bills. 235 CHAPTER V. BILLS. — GENERAL FRAME OF. [* § 239. Statement of subject ; original bills. § 240. Certainty to a common intent all that equity requires. § 241. Plaintiff's case must be made clear. § 242. How uncertainty may arise. § 243 - 246. Cases illustrating the point last stated. § 247. Eight of way, how described in bill. ^ 248, Claim under private grant must be clearly set forth. § 248 a. Frame of bill against public officers. § 249. Further illustration of the point. 4 249 a. Efifect of repugnancy in statements of the bill. § 250. Further illustration of what amounts to uncertainty. § 251 . When general charge insufficient. \ 2.5 1 a. The facts constituting fraud must be stated. § 252. Minuteness of detail not desirable. § 253. General statement commonly sufficient. § 254. Bill with double aspect may present different series of facts. § 254 a. Indefiniteness of averment, how taken advantage of. § 254 b. General averments qualified by 'documents referred to. § 255. Facts which the party ought to know must be stated positively. § 256. But those within defendant's knowledge must often be clearly stated. § 257. Plaintiff's title should be fully stated. § 257 a, 258, 259. Illustrations of the point last stated. § 260. Lord Redesdale's comments upon the point. § 261. Discovery cannot be claimed on defective title. 4 262. It must also appear that defendant is liable to the suit. § 262 a. Eecent cases illustrating the necessity of lucid pleading. § 263. Notice to defendant must be clearly averred. § 264. Admission in the answer wiU not cure defects in bill. § 265. Charging and interrogatory parts, how framed. § 265 a. Admissions of defendant, if relied upon, must be stated in bill. § 266. Impertinent and scandalous matter must be avoided. § 267. The former not commonly struck out. § 268. The mode of testing relevancy. § 269. Counsel required to sign bills. § 270. Scandal will be stricken out. § 271. Multifariousness defined. § 271 a. Not requisite that each defendant be interested in whole suit. § 271 6. Must consist of distinct matters, either of which is sufficient. § 272. Multifariousness illustrated by the cases. § 273, 274. If matters distinct, cannot be joined. § 274 a. Further illustration of the subject. k 275. Distinct matters affecting the same estate cannot be joined. § 276. But if all tend to one point they may be joined. § 277. Several infringements of one copyright cannot be joined. 236 EQUITY PLEADINGS. [CH. V. 4 278. Distinction between that and a right of fishery. § 278 a. Joint interest of all parties in the subject-matter sufficient. § 279. Distinct claims depending on the same question cannot be joined. § 279 a. Not requisite all parties joining should have same interest. § 279 b. Party representing conflicting interests may be sole plaintifif. § 280. Distinct matters cannot be combined in same suit. ^281. Bill for taking testimony de bene, and in perpetuam, will not lie. § 281 a, 282. Further illustrations of the point. ^ 282 a. Principles governing this class of cases stated. § 283. Joinder of matter not of equitable cognizance, no effect. § 284, '284 a. Further illustrations of the subject. § 284 b. Mode of taking advantage of this defect. § 285, 285 a, 286. Some exceptional cases stated. 5 286 a. How far distinct underwriters may join in one bill. Ij 286 b. Distinct and separate owners of houses cannot join. § 287. One entire matter cannot be split up into different suits. § 288. Relief founded on discovery. § 289. The matters alleged should entitle party to discovery claimed. § 290. The bill should clearly state plaintiff's title and the jurisdiction of the court.] § 239. We shall now proceed to a more particular considera- tion of some of the general rules and principles applicable to the structure of original bills for relief. § 240. With reference to certainty in pleadings at the common law, there are said to be three kinds, applicable to different parts of the pleadings, founded, as it should seem, upon one general maxim ; Certa debet esse intentio, et narratio, et certum fundor mentum, et certa res, quce deducitur in judicium. The first kind is certainty to a common intent ; and that is sufl&cient in a bar, tv^hich is to defend the party, and to, excuse him. The second is, certainty to a certain intent in general, as in counts, replications, and other pleadings of the plaintiff, that is, to convict the defend- ant, as in indictments, &c. The third is, certainty to a certain in- tent in every particular, as in estoppels, which are odious in the law.^ It has been said, that, in pleading, there must be the same strictness in equity as in law;^ as, for example, it has been ad- judged, that if a plea sets up a bond fide purchase without notice, as a defence, it will not be sufficient to state in it, that the vendor being seised, or pretending to be seised, did convey, &c.; but there shoiild be a direct averment, that the vendor was actually seised .3 But, however true this may be as to a plea in equity, technically so called, it can hardly be affirmed to be true in the ' Co. Litt; 303 a. ^ Story V. Lord Windsor, 2 Atk. 632. ' Story V. Lord Windsor, 2 Atk. 632 ; Beam, Eq. PI. 21. §239-241.] GENERAL FEAME OF BILLS. 237 framing of bills or answers, in respect to which more liberality prevails.^ And it may perhaps be correctly affirmed, that cer- tainty to a common intent is the most that the rules of equity ordinarily require in pleadings for any purpose.^ § 241. It is an elementary rule of the most extensive influence, that the bill should state the right, title, or claim of the plaintiff with accuracy and clearness ; and that it should, in like manner, state the injury, or grievance, of which he complains, and the re- lief which he asks of the court. In other words, there must be such certainty in the averment of the title, upon which the bill is founded, that the defendant may be distinctly informed of the nature of the case, which he is called upon to meet.^ The other material facts ought, also, to be plainly, yet succinctly alleged, and with all necessary and convenient certainty, as to the essential cir- cumstances of time, place, manner, and other incidents.* If title deeds or other instruments are referred to, they should not be set out in hcec verba ; but the substance of such portions only of them as are necessary to a right understanding of the real matters of the bill.5 It is not a sufficient allegation of a fact in a bill to say that ' 3 Black. Comm. 446 ; 1 Mont. Eq. PI. 27, note (m) ; 2 Mont. Eq. PI. 93, 94', note (A. I.) ; Carew v. Johnston, 2 Sch. & Left. 305 ; Carlton v. Leighton, 3 Meriv. K. 671 ; McCabe i;. Cooney, 2 Sandford, Ch. R. 314. ' Wigram on Points in Discov. 77, 1st edit.; Id. p. 123, 124, 2d edit; Cooper, Eq. PI. 181. It is sometimes laid down in the reports, as well as in elementary works, that there should be the same certainty in a bill in equity that there is in a declaration and other pleadings at the common law. So Lord Hardwicke is reported to have said in Story v. Lord Windsor, 2 Atk. 632. See also Mitf. Eq. PL by Jeremy, 284 ; 1 Mont. Eq. PI. 25, But the proposition is not strictly accu- rate ; and it has been well said by Mr. Wooddesson, (3 Wooddesson Lect. 55, p. 370,) that the matter of the bill need not be set forth with that decisive and cate- gorical certainty which is requisite in pleadings at the common law. Thus, a part of the allegations of a bill may be in the disjunctive. ' Houghton V. Reynolds, 2 Hare, R. 266. ' Mitf. Eq. PI. by Jeremy, 41 ; Cooper, Eq. PI. 5 ; Wyatt, Pract. Reg. 57. A plaintiff who comes for an ex parte injunction must state his case in the first in- stance fully and fairly. Hemphill v. M'Kenna, 3 Drury & Warren, R. 183. * Wyatt, Pract. Reg. 57, 58 ; Barton, Eq. PL 31, note (2) ; Beam. Ord. in Ch. 25, 69, 70, 160, 167; Hood v. Inmann, 4 John. Ch. R. 437. In the East India Company v. Henchman, 1 Ves. jr. 289, the lord chancellor adverted to the loose- ness and prolixity of the bill in which a . great many letters were set forth, and the* added : " Allow the demurrer, and let them (the plaintiffs) file another bill in three lines to suit the point, instead of stating all these letters to show that the transactions, appearing fair, in fact are not fair. Where is the use of that ? What is the allegation ? " Nix v. Winter, 35 Alab. 309 ; Duckworth v. Duckworth, Id. 70. 238 EQUITY PLEADINGS. [CH. V, one of the deffeudants alleges, and the plaintiff believes, the state- ment to be true ; for the defendant may allege that which is quitQ false, and the plaintiff may believe it to be true. But the fact should be positively alleged by the plaintiff in his bill.^ § 242. Uncertainty in a bill, may arise in various ways. (1.) The case intended to be made by the bill may be vague and uncer- tain. (2.) The case intended to be made may be certain ; but the allegations of the bill may be so vague and general, as to draw with them the consequences and mischiefs of uncertainty in pleadings.^ (3.) Some of the material facts may be stated with sufficient cer- tainty, and others again with so much indistinctness or incom- pleteness, as to their nature, extent, date, or other essential requi- sites, (as, for example, in stating the title of the plaintiff,) as to render inert or inefficient those with which they are connected, or upon which they depend.^ In each of these cases, the defect may be fatal to the objects of the bill ; or, if not fatal, it may greatly embarrass the party in the mode of redress, or in the extent of the discovery, or in the application of the evidence.* § 243. A few examples, derived from adjudged cases, may serve to illustrate these principles. Thus, where the East India Com- pany brouglit a bill against one of their servants, for a breach of his covenants, while in their employment, alleging, that he had entered into a combination with the Board of Trade, at Fort Wil- liam, to defraud the company ; that he had made certain false representations to the company in his letters ; that he had mades false charges against them ; that he had made large profits in his transactions with the natives ; and it prayed for an account of the profits, &c. ; upon a general demurrer, it was held, that the bill was bad, from the vague and indeterminate manner in which the ' Egremont v. Cowell, 5 Beavan, R. 620-623. • Wigram on Discov. 77, 78, 1st edit.; Id. p. 123-125, 2d edit.; Wormlad t). ^De Lisle, 3 Beavan, R. 18; Plumbe v. Plumbe, 4 Younge & Coll. 345; Hunter v. Daniel, 4 Hare, R. 432 ; Columbine v. Chiehester, 2 Phillips, R. 27. = Houghton V. Reynolds, 2 Hare, R. 264, 266. * Wigram on Discov. 84-86, 1st edit.; Id. p. 131, 132, 2d edit. Where the charge in the bill is very general, it is often sufficient in the answer to make a general denial of its truth. Where it is special and specific in circumstances, the answer must make specific denials. See Wigram on Discov. 84-87, 1st edit.'; Id. 131 - 136, 2d edit. Hence it is often very material, in cases of excepr tions to an answer for insufficiency, to look to the precise allegations of the bill, and to the interrogatories framed thereon. Wigram on Discov. 196, 1st edit.; Id. 190 - 196, 2d edit. ; Hare on Discov. 36, 40. § 241 - 245.] GENERAL FRAME OF BILLS. 239 bharges were stated. The natural mode of making the charges would have been, to have alleged, that the defendant exercised the trade under the orders of the company, and that by color of this contract with the company, he took the profits, as if they were his own ; whereas it was the trade of the company.^ § 244. So, where a bill was brought to perpetuate a right of common and of way, the charge in the bill was, that the tenants, owners, and occupiers of certain lands of a manor, in right thereof or otherwise, from time whereof the memory of man is not to the contrary, had, and of right ought to have, common of pasture, &c. jn a certain waste, &c. ; the bill was held bad on demurrer ; for the manner in which the right of common was claimed, was not set forth with any certainty. It was not set forth as common append- ant, or as common appurtenant, but as that, " or otherwise,'" which was no specification at all, and left any sort of right open to proof. On that occasion the court said : " Special pleading depends upon the good sense of the thing ; and so does pleading here. And though pleadings in this court nin into a great deal of unneces- sary verbiage, yet there must be something substantial ; the party must claim something." ^ § 244 a. So, where a bill was filed by the assignees of a bank- rupt, alleging that previous to the bankruptcy " certain dealings and transactions took place between the bankrupt and the defend- ant," and that by virtue of " certain agreements for leases, the bankrupt was possessed of certain leasehold houses," which the bill specified ; that in the course of such transactions, the defend- ant from time to time made " certain loans " to the bankrupt, and the bankrupt, " as was alleged by the defendant," made " some lease or assignment of the property to the defendant, but that the plaintiffs were unable to discover," &c., 240 EQUITY PLEADINGS. [CH. V. means ; and that upon the marriage of the plaintiff's father and mother, or before, or at some time after the said marriage, some settlement or settlements was or were executed, whereby all or some parts of the said estates were conveyed upon certain trusts and purposes, in such a manner, as that estates for life were given ■ to his father and mother, or one of them, or at least an estate for life to his father, with a provision by way of jointure or otherwise for his mother, who died in the lifetime of his father, remainder to the first son of his father and mother, or to their first and other sons severally and successively, or in some manner ; feo that the plaintiff, upon the death of his father and mother, or the death of his father, became seised or entitled to all or most of the estates, Gell V. Hay ward, 1 Vern. 312; Cooper, Eq. PI. 312. " The Mayor of London v. Levy, 8 Ves. 398, 401 ; Cooper, Eq. PI. ' Armistead v. Durham, 11 Beavan, 422. - * Jones V. Jones, 3 Meriv. K. 161, 172, 173. * Duke of Brunswick v. The King of Hanover, 6 Beavan, 59. EQ. FL. 21 242 EQUITY PLEADINGS. [CH. V. § 249 a. So, if a bill should in one part state an agreement, and in another charge that there was not an agreement, but only an understanding, the plaintiff thereby in effect admits, that there was no agreement, and therefore his bill will be demurrable for want of certainty.^ § 250. So, where a bill was for an injunction to an action at law, brought for the recovery of the produce of certain foreign specie; and the bill suggested in general terms, that in a particu- lar year the plaintiffs had frequently been employed as agents of the defendants, who were resident abroad, and that they had vari- ous dealings and transactions, and that mutual accounts subsisted between them, and in particular, that at a period, stated in the bill, the defendants remitted the specie in qi^estion ; and the bill prayed an account of the transactions and an injunction ; but there was no statement that there were unsettled accounts, or that a balance was due to either party ; the bill was held bad on demurrer, on account of the facts being too loose and vague to support it.^ § 251. Upon similar grounds, where a bill seeks a general ac- count upon a charge of fraud, it is not sufficient to make such charge in general terms ; but it should point out, and state particu- lar acts of fraud.^ So, in a bill to open a settled account, it is not sufficient to allege generally, that it is erroneous ; but the speciftc errors should be pointed out.* Nor, if the plaintiff fails to support his equity on the different items alleged, can the bill be sustained against a demurrer, upon the vague charge of voluminous accounts between the parties.^ [* § 251 a. There has been considerable discussion in the Eng- lish equity courts, within the last fe!w years, in regard to the ex- tent to which the facts constituting a fraud should be detailed in the bill. In a very recent case it was held that an allegation of fraud was insufficient, without a statement of the circumstances ' Morris v. Morgan, 10 Sim. R. 341. ' Frietas v. Don Santos, 1 Y. & Jerv. 574. = Palmer v. Mure, 2 Dick. R. 489 ; Munday v. Knight, 3 Hare, R. 497. * Johnson v. Curteis, 3 Bro. Ch. R. 267 ; Taylor v. Haylin, 2 Bro. Ch. R. 310; Knight V. Bamfield, 1 Vern. 180 ; Hunter v. Daniel, 4 Hare, R. 432. ' Darthez v. Clemens, 6 Beavan, R. 165. If a bill makes a case of actual fraud, and, at the hearing, the fraud is disproved or not established, the court will not in general allow the bill to be used for any secondary or inferior kind of relief to which the plaintiff might otherwise have been entitled, but will dis- miss it at once. Glascott v. Lang, 2 Phillips, R. 310. § 249 a - 254.] general frame of bills. 243 constituting the fraud. Fraud, it was said, is a conclusion of law, and it is insufficient to allege, that a deed has been obtained by- fraud, unless the things done, constituting such fraud, are stated on the face of the bill.^] § 252. But, although a general charge is insufficient, yet it does not follow, that the plaintiff in his bill is bound to set forth all the minute facts. On the contrary, the general statement of a precise fact is often sufficient ; and the circumstances, which go to confirm or establish it, need not be (although they often are) minutely charged ; for they more properly constitute matters of evidence than matters of allegation.^ Thus, for example, if a bill is brought to set aside an award, bond, or deed, for fraud, imposi- tion, partiality, or undue practice ; it is not necessary in the bill to charge minutely every particular circumstance ; for that is matter of evidence, every part of which need not be charged.^ § 253. And general certainty is sufficient in pleadings in equity. Thus, for example, the statement of a feoffinent without livery of seisin, or of a bargain and sale without statement of the enrolment thereof, will be sufficient.* So, in a bill for a specific performance of a contract, if it be alleged to be in writing, it is not necessary to allege it to be signed by the party ; but it will be presumed to be so signed.5 § 254. And, although setting forth the plaintiff's title in alter- natives may not be sufficient, yet we are not from that to draw the general conclusion, that a bill can never be brought with a double aspect.^ On the contrary, where the title to relief will be precisely the same in each case, the plaintiff may aver facts of a different nature, which will equally support his application. Thus, for example, if a plaintiff should seek to set aside a deed upon the ground of fraud and imposition and undue influence ; the plaintiff, [* ' Gilbert v. Lewis, 1 DeG. J. & Sm. 33 ; S. P. Bryan v. Spruill, 4 Jones, Eq. 27. And a demurrer will not cure such defective averment. lb. When the effect of a judgment, as stated in the bill and the schedule of the record attached vary, the court will follow the schedule. Harper v. Hill, 35 Miss. 63.] " Ante, § 28 ; Mewsharw v. Mewsharw, 2 Md. Ch. Dec. 14. * Chicot V. Lequesne, 2 Ves. 318; Clarke v. Periam, 2 Atk. 337 ; Wigram on Discov. 84, 85, 1st edit. ; Id. 131, 132, 2d edit. ; Cooper, Eq. PI. 7. See Faulder V. Stuart, 11 Ves. 302; Post, § 263, 265 a. * Harrison v. Hogg, 2 Ves. jr. 328 ; Cooper, Eq. PI. 181. ' Dunn V. Calcraft, 2 Sim & Stu. 56 ; Cozine v. Grahame, 2 Paige, K. 177. * Ante, § 245, 245 a. 244 EQUITY PLEADINGS. [CH. V. in such a case, may charge insanity in the party making the deed, and he may also charge great weakness and imbecility of mind.^ [* 254 a. In regard to the degree of certainty requisite in a bill in equity, the decided cases present a considerable variation in the rule, as laid down, at different times, and by different judges of eminence. In a recent English case, upon a bill to set aside secu- rities, as obtained by misrepresentation, it was doubted, whether the allegation, " that the plaintiff was led by the defendant to be- lieve that he had become possessed of the bills for the amount for which the securities were given in the manner before mentioned," which was bond fide, was sufficient, on demurrer ; but it was agreed, without doubt, that advantage could not be taken of the allegation not being more precise, after the case had been heard and decided on the merits, or even at the hearing, probably .^ 254 h. Where a bill was brought by one of the burgesses of a municipal corporation against the corporation, for a breach of trust, the existence of which was predicated upon certain charters set forth in the bill, followed by general averments, that such trusts existed, it was held on general demurrer, that the general allega- tions must be construed with reference to the charters set forth in the bill, and that as these did not disclose a trust of that kind, it could not be held to exist upon the force merely of the general averments, and that the bill could not therefore be supported.^] \ 255. It is a general rule, that whatever is essential to the rights of the plaintiff, and is necessarily within his knowledge, ought to be alleged positively and with precision.* Thus, for ex- ample, if a bill is brought to charge a defendant as assignee of a ' Bennett u. Vade, 2 Atk. 325 ; Colton u. Eoss, 2 Paige, K. 396 ; Lloyd v. Brewster, 4 Paige, R. 537 ; 3 Wooddes. Lect. 55, p. 371. [* "i Smith V. Kay, 30 Law J. Ch. 45, H. Lds. ; 7 H. Lds. Cas. 750. ' Evan V. Avon, 6 Jur. N. S. 1361.] ' Mitf. Eq. PI. by Jeremy, 41, 42 ; Cooper, Eq. PI. 6. There is a bill called a Possessory Bill, which is common in Ireland, and which may be filed in Eng- land, though Lord Chancellor Sugden has said, that in the course of his experi- ence, he did not remember such a bill. It has been held that such a bill ought to state that the plaintiff has been in the actual, quiet, and peaceable possession of the premises in question for three years at least before the filing of the bill, saving the disturbances given by the defendant ; and if there has been a mixed posses- sion, partly by the plaintiff and partly by the defendant, so that it cannot be said that either of the parties had a triennial possession, the court will not interfere, but will leave the parties to settle their right at law. Hemphill v. M'Kenna, 3 Drury & Warren, E. 183. § 254 - 257.] GENERAL FRAME OF BILLS. 245 lease, it will not be sufficient to state in the bill, that the plaintiff has been informed by his steward, that the defendant is so assignee. But the fact must be positively averred ; for it is essential to the very claim set up by the bill.^ On the other hand, the claims of the defendant may be stated in general terms. And if a matter, essential to the determination of the claims of the plaintiff, is charged to rest in the knowledge of the defendant, or must of ne- cessity be within his knowledge, and is consequently the subject of a part of the discovery sought by the bill, a precise allegation thereof is not required.^ Thus, for example, if a bill is brought for a partition, it will be sufficient certainty as to the defendant's title, if it should state, that the defendant is seised in fee of, or otherwise well entitled to, the other remaining undivided parts of the premises. But such an allegation by the plaintiff of his own title would not be sufficient ; and he should set it forth positively and determinately.^ § 256. Still, however, even when the fact rests within the knowledge of the defendant, if it constitutes a material allegation in the bill, and is the foundation of the suit, it must be clearly stated. As, for example, if a bill seeks a discovery, whether the defendants are assignees, &c., it will not be sufficient to allege, that the plaintififhas been informed, that the defendants are assigaees ; but the fact must be positively averred.* § 257. Every fact essential to the plaintiff's title to maintain the bill, and obtain the relief, must be stated in the bill, otherwise, the defect will be fatal. For no facts are properly in issue, unless charged in the bill ; and of course no proofs can be generally of- fered of facts not in the bill ; nor can relief be granted for matters not charged, although they may be apparent from other parts of the ' Ibid. ; Lord Uxbridge v. Staveland, 1 Ves. 56. 2 Mitf. Eq. PL by Jeremy, 42 ; Cooper, Eq. PI. 6. ' Baring v. Nash, 1 V. & Beam. 551, 553. In the case of Ford v. Fearing, 1 Ves. jr. 72, it seems to have been thought that, in a bill by an heir for a discovery and delivery of title deeds, it was not necessary for the plaintiff to state every link of his pedigree, if there is a clear averment and claim of his title as heir. But quEere, whether the bill should not show the precise manner in which the party claims as heir, before he can call upon the defendant to discover and de- liver him any title deeds, as these are facts peculiarly within his own means of knowledge? However, in Delorne v. HoUingsworth, 1 Cox, K. 421,422, the court ruled the same point, as it was ruled in 1 Ves. jr. 72. * Lord Uxbridge v. Staveland, 1 Ves. 56. 21* 246 EQUITY PLEADINGS. [CH. V. pleadings and evidence ; for the court pronounces its decree se- cundum allegata et probata} The reason of this is, that the de- fendant may be apprised by the bill, what the suggestions and allegations are, against which he is to prepare his defence.^ Thus, if an obligee shouldr bring a bill to recover from an heir the amount of a bond, alleging real assets in his hands by descent ; the bill will be demurrable, unless it also states positively and directly, that the defendant is heir, and that the heir is bound by the bond.^ [So, where a party in his bill claims a right as a substituted trus- tee, under the will of a testator, he should distinctly state all the material facts necessary to show that such a vacancy had occurred as to authorize his appointment.*] So, if a bill should be brought by a lessor against an assignee, touching a breach of covenant in a lease, and the covenant, as stated in the bill, should appear to be collateral, and not running with the land, and therefore not bind- ing on assigns ; it should be expressly stated in the bill, not only that the covenant did bind the lessee, but the assigns ; otherwise the bill would be fatally defective.^ § 257 a. So, if a judgment creditor should bring a bill to enforce his security against the debtor's equitable interest in a freehold estate, he must aver in his bill, that he has previously sued out an elegit ; and if he does not, the bill will be fatally defective, since an elegit is an indispensable prerequisite to the maintenance of the bill.® So, if a judgment creditor should bring a bill alleging that the defendant, in order to deprive him of the benefit of his judg- ment, had got into his hands goods of the debtor, under pretence of a debt due to himself, and should pray a discovery of the goods ; but should not aver in his bill, that he had sued out exe- cution on the judgment, the bill would be fatally defective, because ' Cooper, Eq. PI. 5, 7 ; Ante, § 28 ; Crocket v. Lee, 7 Wheat. R. 522, 525.; Grisley on Evid. 22, 23 ; Norbury v. Meade, 3 Bligh, K. 211 ; Hall v. Maltby, 6 Price, R. 240; Jackson v. Ashton, 11 Peters, R. 229; James v. McKemon, 6 John. R. 564 ; 3 Wooddes. Lect. 55, p. 371. 2 Cooper, Eq. PL 5, 7 ; Ante, § 28 ; and cases before cited. = Crosseing v. Honor, 1 Vern. R. 180 ; Mitf. Eq. PI. by Jeremy, 163 ; Cooper, Eq. PI. 179 ; Piper v. Douglass, 3 Gratt. 371. ♦ Cruger v. Halliday, 11 Paige, 320. ' Mitf. Eq. PI. by Jeremy, 163; Lord Uxbridge v. Staveland, 1 Ves. 56; Cooper, Eq. PI. 179. " Neate v. Duke of Marlborough, 3 Mylne & Craig, 407, 416, 417 ; Mitf Eq. PI. by Jeremy, 126. § 257 - 259.] GENERAL FRAME OF BILLS. 247 until he had so done, the goods were not bound by the judg- ment, and consequently the plaintifif would have no title to the discovery.^ § 258. For a like reason, where a bill was brought by a holder of shares (of which some were original, and some derivative,) in an unincorporated joint stock company against tlie directors, alleging a fraud by the latter, by which they had made a profit at the expense- of the company, and praying an account, it was held demurrable ; because it only stated the plaintiff to be a shareholder by purchase ; but it did not specifically state the mode in which the plaintiff be- came such a shareholder, and the manner of his holding his deriv- ative shares, and that he had performed the conclitions, on which alone, by the rules of the company, a transfer was allowed.^ § 259. So, if a bill should be brought in aid of an action at law, it should allege, by whom, and against whom the action is brought, or is to be brought, and the other material circumstances, by which the court may be enabled to judge of the plaintiff's right of action. For, it will never be admitted, that a party shall file a bill, not ven- turing to state who are the persons against whom the action is to be brought, nor the circumstances touching the right of the plain- tiff, and the liabilities of the defendants, which may enable the court, which is presumed to know the law, to decide, whether it is a fit case for its interposition, or not ; but merely stating circum- ' Mitf. Eq. PI. by Jeremy, 187, 188 ; Id. 126 ; Angell v. Draper, 1 Vern. K. 399 ; Post, § 319. ' Walburn v. Ingilby, 1 Mylne & K.' 61. See Houghton v. Reynolds, 2 Hare, K. 266, where Mr. Vice-Chancellor Wigram, in commenting on some of the cases stated in the preceding sections, from § 243-258, said: " There must, no doubt, be such certainty in the averment of the title, upon which the bill is founded, that the defendant may be distinctly informed of the nature of the case which he ia called upon to meet. This is the principle upon which the insufficiency of am- biguous statements has been put. East India Company v. Henchman ; Cresset V. Mitton ; Ryves v. Ryves. The case of the Mayor and Commonalty oi London V. Levy, is another case on the same point, although it is no authority in support of the argument for the plaintiff. The cases of Jones v. Jones, and Frietas v. Don Santos, also support the proposition, that the plaintiff must distinctly aver his equitable title. In Walburn v. Ingilby, the demurrer was allowed on the ground that the plaintiff did not specifically state the manner in which his title was derived ; and though a doubt may have been expressed of the authority of that case in some respects, yet it has never been doubted that a plaintiff must state his title with sufficient particulauity and detail to enable the defendant to meet the case upon some definite issue." Ante, § 242, 245 a; Banks v. Parker, 16 Simons, 176. 248 EQUITY PLEADINGS. [CH. V. Stances, and averring, that the plaintiff has a right against the de- fendants, or against some of them.^ § 260. Lord Redesdale has commented on this subject with great clearness and accuracy ; and it may therefore be useful to quote his very language and illustrations. "Though the plain- tiff," said he, " in a bill may have an interest in the subject ; yet if he has not a proper title to institute a suit concerning it, a de- murrer will hold. Therefore, where persons, who had obtained letters of administration of the estate of an intestate in a foreign court, on that ground filed a bill sSeking «,n account of the estate, a demurrer was allowed ; because the plaintiffs did not show by their bill a comfilete title to institute a suit concerning the sub- ject; for, though they might have a right to administration in the proper ecclesiastical court in England, and might, therefore, really have an interest in the thing demanded by their bill, yet not showing, that they had obtained such administration, they did not show a complete title to institute their suit. And where an executor does not appear by his bill to have proved the will of his testator, or appears to have proved it in an improper or insuffi- cient court, as he does not show a complete title to sue as execu- tor, a demurrer will hold."^ § 261. He then adds ; " Want of interest in the subject of his suit, or of a title to institute it, are objections to a bill, seeking any kind of relief, or filed for the purpose of discovery merely. Thus, though there are few cases, in which a man is not entitled to perpetuate the testimony of witnesses ; yet, if, upon the face of the bill, the plaintiff appears to have no certain right to, or inter- est in the matter, to which he craves leave to examine, in present or in future, a demurrer will hold. Therefore, where a person claiming as devisee in the will of a person living, but a lunatic, brought a bill to perpetuate the testimony of witnesses to the will against the presumptive heir at law ; and where persons, who would have been entitled to the personal estate of a lunatic, if he had been then dead intestate, as his next of kin, supposing him legitimate, brought a bill, in the lifetime of a lunatic, to perpetu- ate the testimony of witnesses to his legitimacy against the Attor- ney-General, as supporting the rights of the crown, demurrers were allowed. For the parties in these cases had no interest, ' Mayor of London v. Levy, 8 Ves. 400, 404 ; Cooper, Eq. PI. 180. " Mitf. Eq. PI. by Jeremy, 155, 156. § 259 - 262 a.] general frame of bills. 249 which could be the subject of a suit ; they sustained no character, under' which they could afterwards use the depositions ; and there- fore the depositions, if taken, would have been wholly nugatory. So, in every case, where the plaintiff in a bill shows only the prob- ability of a future title, upon an event, which may never happen, he has no right to institute any suit concerning it ; and a de- murrer will hold to any kind of a bill on that ground, which will extend to any discovery, as well as to relief." ^ § 262. The bill, too, should not only show the title and interest of the plaintiff in the subject-matter of the suit ; but there must be sufficient averments to show, that the defendant also has an in- terest in the subject-matter, and is liable to answer to him there- for.2 For it has been well remarked, that a plaintiff may have an interest in the subject of his suit, and a right to institute a suit concerning it, and yet may have no right to call on the defendant to answer his demand. This may be for want of privity between the plaintiff and the defendant. Thus, although an unsatisfied legatee has an interest in the estate of his testator, and has a right to have it applied to answer his demands in a due course of ad- ministration ; yet he has no right to institute a suit against the deWtors to his testator's estate, for the purpose of compelling them to pay their debts in satisfaction of his legacy. For there is no privity between the legatee and the debtors, who are answerable only to the personal representative of the testator, unless by collu- sion between the representative and the debtors, or other collat- eral circumstances, a distinct ground is given for a bill by the leg- atee against the debtors.^ For the same reason, where a debtor is entitled to a part of the residue of the estate, either as legatee, or as distributee, his creditor cannot maintain a bill against the per- sonal representative of the deceased, making the debtor, and the other residuary legatees or distributees, parties, for the purpose of having the assets applied towards the payment of his demand.* [* § 262 a. The rule that the plaintiff can only recover upon the case made in his bill, and not upon that made in the evidence, is adhered to with the same strictness in equity as at law ; ^ with > Mitf. Eq. PI. by Jeremy, 156, 157. 2 Mitf. Eq. PI. by Jeremy,, 160 ; Cooper, Eq. PI. 174, 179. » Mitf. Eq. PI. by Jeremy, 158. See also Cooper, Eq. PI. 174-176; Ante, § 178, 227; Post, § 514. » Ibid. • [* * Brainerd v. Arnold, 27 Conn. 617 ; Bailey v. Ryder, 10 N. Y. App. 363. 250 EQUITY PLEADINGS. [CH. V. this difference, that as all the evidence in equity suits is in writing, when it appears that the plaintiff's case is defective by the*omis- sion of any formal averment that could not have changed the course of the defence, had it been made in the bill, leave will be granted, even after the hearing, to supply the allegation, so that the question really litigated between the parties may be determined. It has been held, that it is sufficient, if the plaintiff's title may be inferred from the facts alleged, although not explicitly averred.^ It is said the court disapproves of setting forth arguments in sup- port of the equities relied upon, either in the bill or answer.'' But we are not to understand that any statement of the facts is to be discouraged because it is made in such a form as to consti- tute an argument in itself. That is true, more or less, of every lucid statement of facts.] § 263. The bill also, for the same reason, if it founds the right against the defendant upon his having notice, should charge it di- rectly ; otherwise, it is not matter in issue, on which the court can act.® And where the notice relied upon is to be proved by con- fessions or admissions to witnesses, it seems proper, even if it is not indispensable (as it has been decided in England that it is,) to insert in the bill the dates of the confessions or admissions, and the names of the witnesses ; for otherwise the defendant will not be concluded by their testimony at the hearing ; and the court may direct further inquiries on the subject.* § 264. The rule even proceeds further ; for, if an admission is made in the answer, it will be of no use to the plaintiff, unless it is put in issue by some charge in the bill ; and the consequence is, that the plaintiff is frequently obliged to ask leave to amend his bill, although a clear case for relief is apparent upon the fape of the pleadings.^ This would occur, for example, when a bill is ' Webber v. Gage, 39 N. H. 182. ' Weisman v. Heron Mining Co. 4 Jones, Eq. 112.] ' De Tastet v. Tavernier, 1 Keen, K. 169. * Earle v. Pickin, 1 Russ. & Mylne, 547 ; Gresley on Evid. 288. See also Hall V. Maltby, 6 Price, 240, 258, 259 ; Smith v. Burnham, 2 Sumner, R. 612 ; Hughes V. Garner, 2 Younge & Coll. 328. See also MulhoUand v. Hendrick, 1 MoUoy, R. 359; S. C. Beatt. R. 277; Graham v. Oliver, 3 Beavan, R. 124, 129; Post, § 265 a; Austin v. Chambers, 6 Clarke & Fin. 38; Atwood v. Small, 6 Clarke & Fin. 350, 488, 516 ; Copland v. Toulmin, 7 Clarke & Fin. R. 350, 373, 375 ; Mal- colm V. Scott, 3 Hare, R. 39, 63. ' Gresley on Evidence, 23. § 262 a - 265 a.] general fkame of bills. 251 brought against an executor for an account ; and it prays an ac- count of the personal estate of the testator ; but it does not charge any acts of mismanagement or misconduct in the executor, but simply charges that he has received assets. In such a case, although the answer should disclose gross acts of mismanagement, or wilful negligence and default, whereby assets had not been re- ceived, yet no decree for an account upon such matters could be obtained upon a bill so framed ; for it would not be matter in issue.^ [So, in a creditor's suit against an executor, not specifi- cally charging the defendant with having made himself personally liable, but only praying that an account may be taken, and the es- tate administered in a due course of administration, an admission by the defendant that he has paid certain legacies bequeathed by the testator, is not such an admission of assets, as will entitle the plaintiff to a decree against the executor for payment of his debt, without taking the account.^] § 265. Care, also, should be taken to frame the charging part, and the interrogatory part of the bill, with such certainty, that it may bring out all the facts, which are required by the exigency of the case. Thus, for example, if the bill seeks a discovery of money received by the defendant, it should, in the interrogatory part, following the charging part, inquire not only wlaether the defendant had received the money, but whether any other person had received it by his order, or for his use.^ So, if the bill inquires about deeds, papers, and documents, it should be stated, that they are in the custody or power of the defendant, and that the truth of the matters in the bill would appear from them ; for, otherwise, a motion to produce them might be success- fully resisted.* § 265 a. Another very important rule as to the frame of bills, (already alluded to,^) seems now established in-' England ; and that is, that if the bill means to rely upon any confessions, con- versations, or admissions of the defendant either written or oral, as proof of any facts charged in the bill, (as, for example, of fraud,) the bill must expressly charge what such confessions, con- ' Gresley on Evidence, 23. * Savage v. Lane, 6 Hare, 32. ' Gresley on Evidence, 20, 23. * Gresley on Evidence, 23. See Id. 44, as to the manner of framing interrog- atories. » Ante, § 263. 252 KQUITY PLEADINGS. [CH. V. versations, or admissions are, and to whom made, otherwise no evidence thereof will be admitted at the hearing. The ground of this doctrine seems to be, that otherwise the defendant may be taken by surprise and entrapped, since he cannot know that any such evidence is intended to be produced, as the interrogatories put by the plaintiff to the witnesses, are not made known to him.^ > Hall V. Maltby, 6 Price, 240, 258, 259 ; Evans v. Bicknell, 6 Ves. 183 ; Mul- hoUand v. Hendrick, 1 Molloy, K. 359; S. C. Beatt. 277; Fitzgerald «. O'Fla- herty, 1 Molloy, K. 350; Earle v. Pickin, 1 Rusg. & Mylne, 547; Graham v. Oliver, 3 Beavan, R. 124, 129 ; Hughes v. Garner, 2 Younge & Coll. 328; Gra- ham V. Oliver, 3 Beavan, R 124, 129 ; Austin v. Chambers, 6 Clarke & Fin. E. 38; Attwood v. Small, 6 Clarke & Fin. R. 350, 488, 516 ; 7 Copland v. Toulman, 7 Clarke & Fin. R. 350, 373, 375 ; Gresley on Evidence, 397 ; Ante, § 228, 263 ; Post, § 337. The doctrine does not seem to be founded upon any very clear and intelligible principle. A confession, a conversation, or an admission is manifestly competent evidence of any fact which is in issue between the parties to establish that fact. In a trial at law, it is not necessary to give the other party any previ- ous notice that the intention is to rely on evidence of such confession, admission, or conversation. Why the rule should be otherwise in equity, it is not easy to say. Mr. Baron Alderson, in Hughes v. Garber, 2 Younge & Coll. 328, seemed to think that if notice was charged in a bill, that proof might be given of that fact by the confession, or admission, or conversation of the party without being stated in the bill. In Austin v. Chambers, 6 Clarke & Fin. 38, Lord Cottenham said : " The bill alleges, that, prior to the sale, Mr. Austin desired Mr. Chambers to attend, and bid and buy for him. This Mr. Chambers positively denies. One witness (Mr. Sinclair) proves it, and proves it in this way ; that, after the sale, or at the time of the sale, Mr. Chambers made an arrangement with the sheriff, and after- wards stated that he had bid for Mr. Austin, and that Mr. Austin was the pur- chaser, and that he had bid for him, and was his agent in the purchase. Now the bill charges that the defendant had admitted that he had purchased for his client, Mr. Austin, but it does not charge that he had said so to a witness of the name of Sinclair. If the bill had charged that he had said so to Mr. Sinclair, the defendant would have had an opportunity of cross-examining Mr. Sinclair, or of examining other persons who were present at the time, if any person could be found who would dispute the statement which Mr. Sinclair made upon the subject. But as this bill only seta out as a general allegation that he often said so, without referring to any one instance in particular, the defendant, of course, had no possible means of meeting the case made upon the evidence. I have had frequent occasion in this House and elsewhere to state that where I find evidence of an admission, and that admission is not put directly in issue by the pleadings so that the party against whom it was intended to be used had no opportunity of meeting it by other evidence, it would be a most unjust thing to bind the interests of the party by an admission so proved, and it would be a way of giving facility for producing false evidence, and be very dangerous and mjurious to the general interests of suitors." In Attwood v. Small, 6 Clarke & Fin. 516, the same learned chanceUor said: "The propositions arising from § 265 a.] GENERAL FRAME OF BILLS. 253 Whether the like rule will be allowed to prevail in America, may be deemed a matter open to much doubt ; for the like reason does these facts are these : an imputation of fraud is made against Mr. Attwood, be- cause, when the deputation went down, he produced books of the year 1818. Other more recent information was called for, and he is represented to have said that there were no yield books subsequent to 1818. Then the allegation is, that, although that was true, yet he had in his possession certain stock papers, which, although they would not of themselves show the yield, would have been an item in the calculation In order to ascertain them ; that he knew those yield papers would show a yield different and less favorable than what it was in 1818, and that knowing that he purposely and fraudulently suppressed that information. When the cause was argued at your lordship's bar, it was observed by the counsel for the appellant that there was no such case upon the record. I very carefully looked at it at the time ; I have very carefully looked at it since ; and I find that observation is perfectly well founded, that the bill does not state any such case. If the bill states no such case, particularly where the attempt is to fix firaud, according to the rules of a court of equity, you cannot permit the party to go into evidence for the purpose of proving it, and you cannot infer anything from the circumstance of the defendant in such a bill not having pro- duced evidence to repel such an imputation, no such imputation being made upon the bill. That is the reason why I threw it out of the case ; I considered that in so doing I was acting upon the perfectly well ascertained rules of a court of equity." Lord Brougham, in the same case (p. 488), affirmed the same doc- trine. These authorities sufficiently show that the doctrine is now well estab- lished in England, upon the notion of the extreme inconvenience of allowing the defendant to give evidence which may operate a perfect surprise upon the plaintiff. And it seems appHed in cases of fraud, not only to the confessions, and admissions, and conversations of the plaintiff, but also to his acts or con- cealments, when offered as evidence of the fraud. The doctrine in both respects was much discussed, and greatly doubted by the court in Smith v. Burnham, (1837,) 2 Sumner, R. 612. On that occasion, the court, after reviewing the authorities at that time existing on the subject, said : " If, then, in the absence of authority in favor of the rule, we look to principle, it seems to me impossible that it can be supported. There is no pretence to say that, in general, it is true ; that, as to the facts to be put in issue, it is necessary, not only to charge these facts in the bill, but also to state in the bill the materials of proof and testimony, by means of which these facts are to be supported. Lord Chancellor Hart has admitted this in the fullest manner, saying : ' The evidence of facts, whether documentary or not, need not be put in issue ; evidence of confessions, whether documentary or not, must.' Why admissions or conversations, as mate- rials of proof, should be exceptions from the general practice, I profess myself wholly unable to comprehend. Other papers and testimony may be quite as much matters of surprise, as documents or testimony, £is conversations or admis- sions ; and the circumstance, that conversations or admissions are more easily manufactured than other proofs, furnishes no ■ ground against the competency of such evidence, but only against its cogency as satisfactory proof. Two grounds are relied on to support the exception. The first is, that the defendant may not EQ. PL. 22 254 EQUITY PLEADINGS. [CH. V. not here prevail, either to justify or require it, as all the interrog- atories and cross-interrogatories, put or intended to be put to the be taken by surprise, and (as it has been said) admitted out of his estate ; but may have an opportunity to cross-examine the witnesses. The second is, that the defendant may have an opportunity, in his answer, fully to deny, or to explain the supposed admissions or conversations. Now, the former ground is wholly in- applicable to our practice, where the interrogatories and cross-interrogatories put to every witness are fully known to both parties ; and, indeed, in the laxity of our practice, where the answers of the witness are usually as well known to both par- ties. So that there is no general ground for imputing surprise. Indeed, in this very case, it is admitted by the learned counsel for the defendant, that there has not been any surprise. The second ground is applicable here. But, then, proofs, documentary or otherwise, may be offered as evidence of facts charged in the bill, as well as admissions and conversations, which it might be equally important for the defendant to have an opportunity to deny or to explain, in order to support his defence. Yet the evidence of such facts is not, therefore, inadmissible. So that the exception is not coextensive with the supposed mischief. But it seems to me, that the exception would itself be introductive of much of the mischief, against which the practice of the English court of chancery is designed to guard suitors. In general, the testimony to be given by witnesses in a cause at issue in chancery, is studiously concealed until after publication is formally authorized by the court. The witnesses are examined in secret upon interrogatories not pre- viously made known to the other party. The object of this course is to prevent the fabrication of new evidence to meet the exigencies of the cause, and to take away the temptations to tamper with the witnesses. Now, if the exception be well founded, it will (as has been strongly pressed by counsel) afford great oppor- tunities and great temptations to tamper with witnesses, who are known to be called to testify to particular admissions and conversations. So that it may well be doubted, whether, consistently with the avowed objects of the English doc- trines on this subject, such an exception could be safely introduced into the Eng- lish chancery. There is another difficulty in admitting the exception ; and that is, that there is no reciprocity in it ; for while the defendant in a suit would have the full benefit of it, the plaintiff would have none, since his own admissions and conversations might be used, as rebutting evidence, against his claims asserted in the bill, although they were not specifically referred to in the answer. Several cases have been referred to, both in the English and American Reports, in which the case has been mainly decided ilpon the admissions or conversations of the parties, which were not specifically stated in the bill, or other pleadings. I have examined those cases ; and, although it is not positively certain that there were not, in any instance, any such admissions or conversations charged in the bill, yet there is the strongest reason to believe that such was the fact ; and no comment of the counsel or of the court would lead us to the supposition that there was imagined to be any irregularity in the evidence. I allude to the cases of Lench V. Lench, 10 Ves. R. 511 ; Besant v. Richards, 1 Talmyn, B. 509 ; Neathway v. Ham, 1 Talmyn, R. 316 ; Necot v. Barnard, 4 Russ. R. 247 ; Park v. Peck, 1 Paige, R. 477 ; Marks v. Pell, 1 John. Ch. R. 594 ; and Harding v. Wheaton, 11 Wheat. R. 103 ; S. C. 2 Mason, R. 378. So far as my own recollection of the § 265 a.] GENERAL FKAME OF BILLS. 255 witnesses, are required to be made known to the other party be- fore any of them are examined, or at the time of examination ; practice in the courts of the United States has gone, I can say that I have not the slightest knowledge that any such exception has ever been urged in the Cir- cuit Courts, or in the Supreme Court, although numerous occasions have existed, in which, if it was a valid objection, it must have been highly important, if not absolutely decisive. Until a comparatively recent period, I was not aware that aL^- such rule was insisted on in England or America, notwithstanding the case of Hall V. Maltby, 6 Price, K. 250, 252, 258. Indeed, Mr. Gresley, in his late treatise on Evidence, has not recognized any such rule, although, in one passage, the subject was directly under his consideration, and he rSlied for a more general purpose on that very case. If it had been clearly settled' in England, it would scarcely have escaped the attention of any elementary writer professedly discuss- ing the general doctrines of evidence in the courts of equity. My opinion is, that the principle to be deduced from the case in 6 Price, R. 250, before Lord Chief Baron Richards, supported, as it is, by the other cases already cited before Lord Chancellor Hart, is not of sufficient authority to establish the exception contended for, as an exception known and acted upon in the court of Chancery in England, whose practice, and not that of the court of Exchequer, furnishes the basis of the equity practice of the courts of the United States. I have a very strong impression, that, in America, the generally received, if not the universal practice, is against the validity of the exception. If the authorities were clear the other way, I should follow them. But if I am to decide the point upon gen- eral principles, independent of authority, I must say that I cannot persuade my- self, that the exception is well founded in the doctrines of equity jurisprudence, as to pleadings or evidence." In Malcolm v. Scott, 3 Hare, K. 39, 63, Mr. Vice- Chancellor • Wigram used the following language where certain letters were offered in evidence and not charged as such in the bill. " Another objection was, that the letters principally relied upon were not charged in the bill, and it ■was urged that they were, therefore, inadmissible. The cases of Whitley v. Mar- tin, 3 Beavan, R. 226, and Graham v. Ohver, 3 Beavan, R. 124, were cited,' to which I have very often been referred. They appear to me to be cited for a proposition much broader than Lord Langdale ever meant to lay down. It is very difficult to say that those particular cases could have been decided otherwise than they were ; but the marginal notes go much further than the judgments. This bill, however, expressly charges that there was an agreement for giving the lien in question, and I am perfectly clear, according to the rule Lord Cottenham laid down, that, whatever would be the evidence of an agreement at law is evi- dence in equity, subject to this, that if one party should keep back evidence which the other might explain, and thereby take him by surprise, the court will give no effect to such evidence, -without first giving the party to be affected by it an opportunity of controverting it. The only observation I make as to the ab- sence of the letters in the bill is, that, as this is a proceeding against parties abroad, I should have been very much disinclined to grant the injunction against them if I had found the plaintiff had kept back letters which might have been communicated to the parties in India, and to which they might have given an answer. It is not undeserving of remark, that the only letter relied upon, is that 256 EQUITY PLEADINGS. [CH. V. and thus neither party can be under any surprise, if the interrog- atories point to any confessions, or conversations, or admissions, made to any witness.^ § 266. On the other hand, care must be taken not to overload bills by superfluous allegations and redundant and unnecessary statements, or by scandalous and impertinent matter ; for if any bill be found such, upon due reference to and report of a master, the plaintiff and his counsel will be liable to pay costs.^ Imperti- nence is the introduction of any matters into a bill, answer, or other pleading or proceeding in a suit, which are not properly be- fore the court for decision at any particular stage of the suit.® One of the 16th of January, 1841, and the other letters are merely referred to gener- ally, and are not stated as giving a lien ; they are adduced merely to support the general statement that a lien had been given. I do not, however, dispose of the case upon this narrow ground ; although, perhaps, I might, as a matter of plead- ing, have done so." See also Whitley v. Martin, 3 Beavan, R. 226 ; Willan v. Willan, 16 Ves. 72-87, 88. ' See Smith v. Burnham,-2 Sumner, K. 622. ' Mitf. Eq. PL by Jeremy, 48 ; Gilb. For. Eom. 91 ; Emerson v. Dallison, 1 Ch. Rep. 194 ; Willis v. Evansy 2 B. & Beatt. 228 ; 3 Wooddes. Lect. 55, p. 373. An exception for impertinence must be supported in tola, or it will fail altogether. Wagstaff V. Bryan, 1 Euss. & Mylne, E. 30 ; Tucker v. Cheshire Railroad Co.' 1 Foster, 37. See Tench v. Cheese, 1 Beavan, R. 571, 574, and cases on imperti- nence generally cited; Id. p. 575, note. [As to what allegations are not scan- dalous, see Everett v. Prythergch, 12 Simons, 365.] ' Wood V. Mann, 1 Sumner, R. 506, 578; Langdon v. Goddard, 3 Story, K. 13. The 26th and 27th Rules of the Equity Rules of the Supreme Court of the United States, January Term, 1842, are as follows: "Every bill shall be ex- pressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary 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 by any judge of the court for impertinence or scandal, and, if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant aU his costs in the suit up to that time, unless the court, or a judge thereof, shall other- wise order. If the master shall report that the bill is not scandalous or imperti- nent, the plaintiff shall be entitled to all costs occasioned by the reference." — " No order shall be made by any judge for referring any bill, answer, or plead- ing, or other matter or proceeding depending before the court for scandal or im- pertinence, unless exceptions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent ; nor unless the exceptions shall be filed on or before the next rule day after the pro- cess 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 § 265 a - 267.] general frame of bills. 257 of the Ordinances of the Court of Chancery, constituting a funda- mental rule of the court, is aimed against this transgression of the good sense, as well as the good taste, of equity pleadings. It de- clares, " That counsel are to take care, that the same (bills, an- swers, and other pleadings,) be not stuffed with repetitions of deeds, writings, or records, in hcec verba ; but that the effect and substance of so much of them only, as is pertinent and material, be set down, and that in brief terms, without long and needless traverses of points, not traversable, tautologies, multiplication of words, or other impertinences, occasioning needless prolixity ; to the end, the ancient brevity and succinctness in bills and other pleadings may be restored and observed. Much less may any counsel insert therein matter merely criminous or scandalous, under the penalty of good costs to be laid on such counsel." ^ § 267. However, in cases of mere inapertinence, the court will not, because there are here and there a few unnecessary words, treat them as impertinent ; for the rule is designed to prevent op- pression, and is not to be so construed, as to become itself oppres- sive.^ Nor will the court, in cases of alleged impertinence, order the matter alleged to be impertinent to be struck out, unless in 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 ex- amination." 1 Beames, Ord. in Ch. 165-167; Id. 25; Id. 69, 70; Wyatt, Pract. Keg. 57, 58; Cooper, Eq. PI. 18, 19; Hood v. Inman, 4 John. Ch. R. 437. Mr. Cooper, in his Equity Pleadings, (p. 19,) says : " Prolixity appears to have been anciently a fault in a bill of the kind above mentioned. And Lord Keeper Bacon, to pre- vent it, appears to have made an order that no bill shall contain above fifteen sheets of paper, which, by a subsequent order of Lord Chancellor Egerton, were to be written fifteen lines in a sheet ; and if the complainant exceeded the allotted quantity, it was a ground of demurrer ; but which was afterwards changed into recompensing the defendant by costs, as is at present done for irrelevant matter. The letter of this rule of pleading has been long done away ; but the principle of it still remains in the existing rules of the court as to scandal and impertinence, and in the regulated quantity of writing in ofSce-copies, which may be traced to the above ancient orders for their foundation and origin." It is clearly imperti- nence not only to state irrelevant facts, but to cite public statutes at large, or to state matters of law ; for the court is bound to take judicial notice of the latter, without any averment. 1 Mont. Eq. PI. 26 ; 2 Mont. Eq. PI. 91, 92^^ See the 26th and 27th of the Equity Kules of the Supreme Court of the United States, January Term, 1842, cited Supra, § 266, note; 1 Howard, K. Introd. p. 49, 50; 17 Peters, K. Appendix, p. 65, 66. ' Del Pont V. De Tastet, 1 Turn. & Russ. 489. 22* 258 EQUITY PLEADINGS. [CH. V. cases where the impertinence is very fully and clearly made out ; for if it is erroneously struck out, the error is irremediable ; but if it is not struck out, the court may set the matter right in point of costs. ^ § 268. In examining the question, whether an allegation or statement in the bill is relevant or pertinent, it must be recollect- ed that a bill in chancery is not only a pleading for the purpose of bringing before the court, and putting in issue the material allega- tions and charges, upon which the plaintiff's right to relief rests, as is done in a declaration in a suit at law ; but it is also, in most cases, an examination of the defendant upon oath, for the purpose of obtaining evidence to establish the plaintiff's case, or to coun- terprove or destroy the defence which may be set up by such de- fendant in his answer. The plaintiff may, therefore, state any matter of evidence in the. bill, or any collateral fact, the admission of which, by the defendant, may be material in establishing the general allegations of the bill, as a pleading, or in ascertaining or determining the nature, and the extent, and the kind of relief, to which the plaintiff may be entitled, consistently with the case made by the bill ; or which may legally influence the court in de- termining the question of costs. And where any allegation or statement contained in the bill may thus affect the decision of the cause, if admitted by the defendant, or established by proof, it is relevant, and cannot be excepted to as impertinent.^ § 269. It was to prevent these glaring faults of scandal and im- pertinence*, alike mischievous and oppressive, (which might make the records of the courts the vehicles of slander or idle gossip,) ' Davis V. Cripps, 2 Younge & Coll. New Kep. 443, where Mr. Vice-Chancel- lor Bruce said : " The court, in cases of impertinence, ought, before expunging the matter alleged to be impertinent, to be especially clear that it is such as ought to be struck out of the record for this reason, that the error on one side is irremediable, on the other not. If the court strikes it out of the record, it is gone, and the party may then have no opportunity of placing it there again ; whereas, if it is left on the record, and is prolix or oppressive, the court, at the hearing of the cause, has power to set the matter right in point of costs. That consideration has been a,lluded to by Lord Eldon, in Parker v. Fairlie, and other cases. It ought to be clear to demonstration, that the matter complained of is impertinent before that which, if wrong, is irremediable, is done." See also At- torney-General V. Rickards, 6 Beavan, R. 444 ; Tucker v. Cheshire Railroad Co. 1 Foster, 38. " Hawley v. Wolverton, 5 Paige, R. 523 ; Mechanics Bank v. Levy, 3 Paige, R. 606. See Mitchell v. Koecker, 12 Beavan, 44. § 267 - 270.] GENERAL FRAME OF BILLS. 259 that courts of equity, at a very early period, required all bills to have the signature of counsel affixed to them;i and if no such sig- nature appears, or the signature is not genuine, the bill will be dis- missed, or ordered to be taken off the files of the court.^ If either of these faults exist in a bill, it may be objected to by the defend- ant in the first stages of the cause, upon a motion to refer it to the master, to inquire into the foundation of the objection. But noth- ing, which is positively relevant to the merits of the cause, however harsh or gross the charge may be, can be correctly treated as scan- dalous. Thus, for example, in bills to set aside deeds, or other instruments, for fraud, there are often to be found gross charges in relation to the matter of the asserted fraud. But these charges are not, by any rule of the court, to be deemed scandalous. And, indeed, such a proceeding might be dangerous to the cause itself, and prevent a due iiivestigation of its merits. Hence it is, that nothing pertinent to the cause is ever deemed scandalous ; and the degree of the relevancy is not deemed material.^ § 270. It is obvious that a bill may contain matter, which is im- pertinent, without the matter being scandalous ; but if, in a tech- nical sense, it is scandalous, it must be impertinent.* According, to the ordinary practice of the court, a bill cannot be referred for impertinence, after the defendant has answered, or has submitted to answer.^ But it may be referred for scandal at any time ; ^ and even, by leave of the court, upon the application of a stranger to the suit.'^ The reason of the difference seems to be, that mere im- pertinence is not in itself prejudicial to any one ; it is but a naked superfluity. But scandal is calculated to do great and permanent injury to all persons j whom it affects, by making the records of the court the means of perpetuating libellous and malignant slanders ; and the court, in aid of the public morals, is bound to interfere to ^ Ante, § 47. " Cooper, Eq. PI. 18, 19 ; Mitf. Eq. PI. by Jeremy, 48 and note (a) ; Dillon v. Francis, 1 Dick. K. 68 ; French v. Dear, 5 Ves. 547 ; Abergavenny v. Abergav- enny, 2 P. Will. 312 ; Ante, § 47 and note. ' Cooper, Eq. PL 19; Fenhoulet v. Passavant, 2 Ves. 24; St. John v. St. John, 11 Ves. 526, 539 ; CoflSn v. Cooper, 6 Ves. 514 ; Ex parte Simpson, 15 Ves. 477. * Cooper, Eq. PL 19 ; Fenhoulet v. Passavant, 2 Ves. 24 ; Ex parte Simpson, 16 Ves. 477. ' Gilb. For. Rom. 91 ; Cooper, Eq. PL 19. ' Cooper, Eq. PI. 19 ; Anon. 2 Ves. 631. ' Coffin V. Cooper, 6 Ves. 514 ; Williams v. Douglass, 5 Beavan, R. 82. 260 EQUITY PLEADINGS. [CH. V. suppress such indecencies, which may stain; the reputation and wound the feelings of the parties and their relatives and friends.^ § 271. The bill should not be multifarious ; for if it is so, it is demurrable, and may be dismissed by the court of its accord, even if not objected to by the defendant.^ By multifariousness in a bill is meant the improperly joining in one bill distinct and independ- ent matters, and thereby confounding them ; as, for example, the uniting, in one bill of several matters, perfectly distinct and un- / connected, against one defendant, or the demand of several mat- ters of a distinct and independent nature against several defend- ants in the same bill.^ In the latter case, tlie proceeding would ' In Ex parte Simpson, 15 Ves. 477, Lord Eldon said : " If that which is stated is material to the issue, it may be false, but cannot be scandalous ; if relevant, it is not impertinent, though scandalous in its nature ; if relevant and pertinent, it cannot be treated as scandalous ; and if false, it must, be dealt with in another way. But, if irrelevant, and especially if also scandalous, there would be much reason to regret that a court should not be armed with the power to protect par- ties from the expense, and its records from the stain, which too frequently arise from the introduction of irrelevant and scandalous matter upon affidavits in this jurisdiction." And again : " The c^urt ought to take care that in a suit, or in this proceeding, (in bankruptcy,) allegations bearing cruelly on the moral chatr- acter of individuals, and not relevant to the subject, shall not be put upon the record." " Mitf Eq. PL by Jeremy, 181 and note; Cooper, Eq. PI. 182. Multifari- ousness must be objected to by the defendant on demurrer, and cannot be objected to by him at the hearing. Ward v. Cooke, 5 Madd. R. 122 ; Wynne V. Callender, 1 Russ. R. 293 ; Whaley v. Dawson, 2 Sch. & Lefr. 370, 371 ; Benson v. Hadfield, 4 Hare, R. 32. But the court may, however, take the objection at the hearing sua sponte ; for the court is not bound to allow a bill of such a nature, although the party may not take the objection in season. Green- wood V. Churchill, 1 Mylne & K. 559. The reason why multifariousness must be taken by the defendant by demurrer, and not at the hearing, is said by Lord Redesdale to be, that the objection of multifariousness proceeds on this ground, that though the union of distinct matters in some cases avoids multiplicity of suits, yet it creates unnecessary trouble and expense to the party who has no concern with the other transaction, by putting him to the trouble and expense of a liti- gated question, with which he has nothing to do. This can be taken advantage of only by demurrer ; because, if the defendant answer, the expense is in a great measure incurred, and it wiU be too late for him to complain when he chooses to suffer the cause to proceed to a hearing. Whaley v. Dawson, 2 Sch. & Lefr. 371. As to misjoinder of parties, see Ante, § 203, 237 ; Post, § 509, 530, 538-541, 544. As to cases where the objection of multifariousness has been overruled, see Post, § 278 a, 280, 284 a, 530-540 ; Hoggart v. Cutts, 1 Craig & Phill. 204. ' Cooper, Eq. PI. 182 ; Mitf Eq. PI. by Jeremy, 181 and note ; West v. Ran- dall, 2 Mason, R. 201 ; Saxton ,;. Davis, 18 Ves. 80 ; Burke v. Harris, Hardr. R. § 270 - 271 a.] general frame of bills. 261 be oppressive, because it would tend to load each defendant with an unnecessary burden of costs, by swelling the pleadings with the statement of the several claims of the other defendants, with which he has no connection.^ In the former case, the defendant would be compellable to unite, in his answer and defence, different mat- ters, whoUy unconnected with each other ; and thus the proofs, applicable to each, would be apt to be confounded with each other, and great delays would be occasioned by waiting for the proofs respecting one of the matters, when the others might be fully ripe for hearing.^ Indeed, courts of equity, in cases of this sort, are anxious to preserve some analogy to the comparative simplicity of proceedings at the common law, and thus to prevent confusion in their own pleadings, as well as in their own decrees.^ § 271 a. But the objection must still be confined to cases, where the case of each particular defendant is entirely distinct and sepa- rate in its subject-matter from that of the other defendants ; for the case against one defendant may be so entire, as to be incapa- ble of being prosecuted in several suits ; and yet some other de- fendant mayjbe a necessary party to some portion only of the case stated. In the latter case, the objection of multifariousness could not be allowed to prevail.* So, it is not indispensable, that all the 337 ; Fellows v. Fellows, 4 Cowen, K. 682. '" Seeking," said Lord Eldon, " to en- force different demands against persons liable respectively, but not as connected with eac9 other, it (the bill) is clearly multifarious." Saxton v. Davis, 18 Ves. 80. See also West v. Eandall, 2 Mason, E. 181 ; Banks v. Walker, 2 Sandford, R. 344; Post, § 530, 531, 538-541. Perhaps in strictness of language it would be more correct to call it a misjoinder, where different and distinct claims are mixed up in the same bill, against the same defendant. Campbell v. Mackay, 1 Mylne & Craig, K. 618. See also Attorney-General v. St. John's College, 7 Sim. R. 241 ; Newland v. Rogers, 3 Barb. Ch. R. 432 ; Post, § 530 - 632. See Hoggart V. Cutts, 1 Craig & Phill. 204. Bignold v. Audland, 11 Sim. R. 24, where a de- murrer to a bill of interpleader was held multifarious. Post, 284, 291. 1 Mitf. Eq. PI. by Jeremy, 181 ; Cooper, Eq. PI. 183 ; Ward v. Duke of North- umberland, 2 Anst. R. 469 ; Benverie v. Prentice, 1 Bro. Ch. R. 200 ; Berke v. Harris, Hardr. R. 337; Whaley v. Dawson, 2 Sch. & Lefr. 871 ; West v. Ran- dall, 2 Mason, R. 201 ; Brinckerhoff v. Brown, 6 John. Ch. R. 139 ; White i;. White, 5 Gill, 381 ; Fellows v. Fellows, 4 Cowen, R. 682 ; Post, § 530. " Whaley v. Dawson, 2 Sch. & Lefr. 371 ; Berke v. Harris, Hardr. R. 337 ; Boyd V. Hoyt, 5 Paige, R. 65 ; Post, § 530. ' Cooper; Eq. PI. 182 ; Post, § 530; White v. White, 5 Gill, 381. * Attorney-General v. Poole, 4 Mylne & Craig, R. 17, 31 ; Turner v. Robin- son, 1 Sim. & Stu. 313 ; Attorney-General v. Cradock, 3 Mylne & Craig, 85 ; Post, § 278 a. Multifariousness as to one defendant constitutes no necessary 262 EQUITY PLEADINGS. [CH. V. parties should have an interest in all the matters contained in the suit ; it will be sufficient, if each party has an interest in some matters in the suit, and they are connected with the others.^ [ § 271 b. And to support the objection of multifariousness, because the bill contains different causes of suit against the same person, two things must concur; first, the different grounds of suit must be wholly distinct ; secondly, each ground must be suf- ficient as stated, to sustain a bill ; if the grounds be not entirely distinct and unconnected ; if they arise out of one and the same transaction, or series of transactions, forming one course of deal- ing, and all tending to one end ; if one connected story can be told of the whole, the objection does not apply .^] § 272. A few examples may illustrate this doctrine of multifari- ousness in each of its branches. Thus, if an estate should be sold in lots to different persons, the purchasers could not join in exhibit- ing one bill against the vendor for a specific performance ; for each party's case would be distinct, and would depend upon its own peculiar circumstances ;^ and, therefore, there should be a dis- tinct bill upon each contract. On the other hand, the render, in the like case, would not be allowed to file one bill for a specific performance against all the purchasers of the estate, for the same reason.* So, if a bill should be brought for a specific performance upon the sale of an estate, it would be multifariousness to include in such a bill, a prayer for relief against third persons, wh5 should claim an interest in the estate, and who are unconnected with the sale.^ Tims, for example, if a purchaser of an equity of re- demption under a contract of sale, should file a bill for a specific ground of objection by the other defendants ; for a bill may be multifarious as to one defendant, and not as to the rest. Attorney-General v. Cradock, 8 Sim. K. 466 ; S. C. 3 Mylne & Craig, 85 ; Post, § 274 and note, 284, 530, 538, 539 and note. See also Lumsden v. Frazer, 7 Sim. K. 555 ; S. C. 1 Mylne & Craig, 589 ; Ante,,§ 136 a. ^ Addison v. Walker, 4 Younge & Coll. 444. See Parr v. Attorney-General, 8 Clarke & Fin. 435 ; Worthy v. Johnson, 8 Georgia, 238. ' Bedsole v. Monroe, 5 Ired. Eq. R. 313. See Larkins v. Bidd, 21 Ala. 252. See Nail v. Mobley, 9 Georgia, 278 ; 23 Ala. 558 ; 3 Md. Ch. D. 46 ; Kobinson V. Cross, 22 Conn. 171. McCabe v. Bellows, 1 Allen, 269. ' Cooper, Eq. PI. 182; Rayner w. Julian, 2 Dick. R. 677; Brookes v. Lord Whitworth, 1 Madd. R. 88 ; Post, § 530-533. * Cooper, Eq. PL 182 ; Brookes v. Lord Whitworth, 1 Madd. R. 86 ; Lumsden ». Frazer, 7 Sim. R. 555 ; S. C. 1 Mylne & Craig, R. 589. ' Mole V. Smith, Jac. R. 490, 494. §271 a -272.] general frame of bills. 263 performance, he could not properly join the mortgagee in such bill, or any third person, claiming an interest in the equity of re- demption, who had not joined in the contract.^ So, if a plaintiff ^ Tasker v. Small, 3 Mylne & Craig, R. 63, 68-71. On this occasion. Lord Cottenham said : " It is not disputed, that, generally, to a bill for a specific per- formance of a contract of sale, the parties to the contract only are the proper parties ; and, when the ground of the jurisdiction of courts of equity in suits of that kind is considered, it could not properly be otherwise. The court assumes jurisdiction in such cases, because a court of law, giving damages only for the non-performance of the contract, in many eases does not afford an ade- quate remedy. But, in equityi as well as at law, the contract constitutes the right, and regulates the liabilities of the parties ; and the object of both proceed- ings is to place the party complaining as nearly as possible in the same situation, as the defendant had agreed, that he should be placed in. It is obvious, that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities, which arise out of it, are as much strangers to a proceeding to enforce the execution of it, as they are to a proceeding to recover damages for the breach of it. And so is the admitted practice of the court. But 'it is said, that this case ought to be an exception to the rule, because Phil- lips, in whom, as first mortgagee, the legal estate is vested, is not willing to con- vey it to the plaintiff, the purchaser, without having competent authority for so doing, and that, the question being raised, whether the legal estate can be so conveyed, Mrs. Small is of necessity made a party to the suit. The proposition assumes two points ; first, that Phillips is himself a proper party to the suit ; and, secondly, that being so, it is competent for him to require that Mrs. Small should be made a party to it. Phillips is merely a mortgagee, against whom no bill can properly be filed, except for the purpose of redeeming his mortgage, and that by a party entitled to redeem. The bill does not pray any redemption of Phillips's mortgage, and, if it had, the plaintiff would not be entitled to file such a bill. He is only connected with the property by having contracted to purchase the equity of redemption, and, until that purchase "is completed, he cannot redeem the mortgage. Phillips has no interest in the specific perform- ance of the contract ; he is no party to it ; and the performance of it cannot affect his security or interfere with his remedies. Supposing, however, that it was competent for the plaintiff to redeem Phillips's mortgage, he can only be so entitled as standing in the place of the mortgagor ; but a mortgagee can never refuse to restore to his mortgagor, or those who claim under him, upon repay- ment of what is due upon the mortgage, the estate, which became vested in him as mortgagee. To him it is immaterial, upon repayment of the money, whether the mortgagor's title was good or bad. He is not at liberty to dispute it, any more than a tenant is at liberty to dispute his landlord's title. Phillips, there- fore, is bound, upon payment, to restore the legal estate to his mortgagor, or to those who claim under him. By Phillips's mortgage deed, the equity of redemp- tion was reserved to Small. If the plaintiff could show such equity of redemp- tion to be vested in him, he would be entitled, upon paying the mortgage debt, to demand a reconveyance of the estate, without regard to any other question affecting the title to the property. I am, therefore, of opinion, that Phillips 264 EQUITY PLEADINGS. [CH. V. should appoint A, B, and C, his agents, and afterwards he should retire from the agency or firm, and then the plaintiff should ap- point B, C, and D, agents in the same business, if an account were sought against each of the agencies, it would be multifarious to join them both in the same bill, where the transactions are separ rate and distinct under each agency, although a different rule might apply if the second agency was understood by all parties to be a mere continuation of the first, and not to separate the trans- actions of the one from the others.^ § 273. So, where a bill was brought* against a corporation to establish eight charitable bequests, of which seven were for the benefit of poor members of the corporation exclusively, and the eighth was subject to a fixed payment to another corporation, which made the latter a necessary party thereto ; it was held, that the bill was multifarious ; for the latter corporation had no interest in the other seven, charities.^ § 274. For the same reason, where a bill by a creditor sought an account against an executor and trustee of the testator's estate, and also to set aside a sale made by the executor and trustee to a purchaser, who was made a party to the bill ; it was held demur- himself is not a proper party to this suit, and that he cannot, by not himself insisting upon the objection, make Mrs. Small a proper party ; and that, even if he were himself properly made a defendant, the objection raised by him at the bar, though not by his answer, — for by his answer he offers to reconvey upon being paid his mortgage debt, — would not make Mrs. Small a proper party. But it was argued at the bar, that the plaintiff was, in equity, invested .with all the rights of Mrs. Small, upon the principle, that by a contract of purchase, the purchaser becomes in equity the owner of the property. This rule applies only as between the parties to the contract, and cannot be extended so as to affect the interest of others. If it could, a contract for the purchase of an equitable estate would be equivalent to a conveyance of it. Before the contract is carried into effect, the purchaser cannot, against a stranger to the contract, enforce equities attaching to the property. In Mole v. Smith, Jac. 490, Lord Eldon says, that when a bill is filed for a specific performance, it should not be mixed up with a prayer for relief against other persons claiming an interest in the estate. Such was his opinion in a case in which the vendor was plaintiff, and the defendants were persons whom the vendor sought to compel to join in completing the title. How much stronger is the objection where the purchaser is the plaintiff, and the only connection between him and the defendants is the incomplete disputed contract." ' Benson v. Hadfield, 12 Law Journ. N. S. 89 ; S. C. 5 Beavan, K. 546. ^ Attorney-General v. Merchant Tailors' Company, I Mylne & Keen, K. 189 ; Post, § 532, 533. § 272 - 274 a.] general frame of bills. 265 rable for multifariousness ; for the purchaser had nothing to do with the general settlement of the accounts of the estate, and ought not to be involved in any litigation respecting it.^ § 274 a. So, where devisees and legatees brought a bill against the trustees and executors under a will, and against a mortgagee of a part of the estates, alleging collusion between the trustees and executors and the mortgagee, and that they refused to compel the mortgagee to account for the rents and profits, or to redeem the mortgage, and the bill prayed for an account of the testator's ef- fects, and that the mortgage might be redeemed ; the bill was held, on a demurrer by the mortgagee, to be multifarious ; for the mort- gagee had nothing to do with the general settlement of the ac- counts of the estate.^ [* But it is here said the bill will not be multifarious, if it be confined to enforcing the particular debts in regard to which it alleges collusion between the debtor and the executors and trustees.] [So, where a bill seeks to redeem a mortgage of an entire estate, and a subsequent mortgage by one tenant in common of his share in a part of the estate.^] ' Salvidge v. Hyde, Jacob, K. 151 ; S. C. 5 Madd. 138. In this case, the lord chancellor overruled the decision made by the vice-chancellor, reported in 5 Madd. 138, which overruled the demurrer by the purchaser. On that occasion, the vice-chancellor said : " To this bill, the defendant. Laying, has demurred for multifariousness ; and it is alleged for him, that he has no concern with the general accounts of the testator's estate, and that he ought not to be joined as a party in a suit for such purposes ; but that, if it were thought fit to impeach the sale made to him, it ought to have been the subject of a distinct biU. In order to determine, whether a suit is multifarious, or, in other words, contains distinct matters, the inquiry is not, as this defendant supposes, whether each defendant is connected with every branch of the cause, but whether the plaintiff's bill seeks relief in respect of matters, which are in their nature separate and distinct. If the object of the suit be single, but it happens, that different persons have separate interests in distinct (questions, which arise out of that single object, it necessarily follows, that such different persons must be brought before the court, in order that the suit may conclude the whole subject. Here, the bill has the single object of an account of the real and personal estate of this testator; and that account in part depends upon the question, whether the defendant. Laying, is, or not, to be considered as the purchaser of this prop- erty." See Campbell v. Mackay, 1 Mylne & Craig, 603, 61-7 - 625 ; Ante, § 272 a ; Post, § 578 a. See also Attorney-General v. Cradock, 3 Mylne & Craig, 85, in which Salvidge v. Hyde is much commented on by Lord Cottenham. Lund v. Blan- chard, 4 Hare, K. 9; Post, § 539, note; Jackson v. Forrest, 2 Barb. Ch. E. 576. 2 Pearse v. Hewitt, 7 Sim. K. 471. ' White V. Curtis, 2 Gray, 467, Merrick, J., said : " Though there is no positive or inflexible rule as to what, in the sense of courts of equity, shall constitute multi- EQ. PL. 23 266 EQUITY PLEADINGS. [CH. V. § 275. So, where a bill was brought for a partition, and also to set aside a lease, made by the plaintiff to a third person, of a part of the estate, on the ground of fraud ; it was held, that the bill was multifarious ; for the parties against whom the partition was sought, ought not to be involved in any litigation, as to the validity of the lease, in which they had not any interest.' § 276. So, where a bill was brought by a tenant of a colliery under a lease and a subsequent agreement, for an account under the agreement, against the executors of the landlord, and also against his heir, the tenant having continued to hold under the latter on the same terms, after the death of the ancestor ; it was held, that the bill was multifarious in joining distinct claims, to wit, one against the executors, and one against the heir ; and on that occasion it was said by the court, that the cases, where uncon- nected parties are allowed to be joined in a suit, are, when there is one common interest among them, all centring in the point in issue in the cause.^ fariousness, it is sufficiently plain that the present bill is fairly obnoxious to that objection. Distinct and unconnected matters are united in it. It alleges two independent causes of action, in which all the plaintiffs have not a common inter- est. And to meet these allegations, the defendants would be subjected to the inconvenience and disadvantage of combining in their answer and defence the various separate and disconnected matters which have relation to these several causes of complaint. All the plaintiffs have a joint interest in redeeming the estate described in the bill from the mortgage upon it, which was made to Waite and Lynde by Richard White, in the year 1827 ; but no one of them, except Mary E. White, is subject to any liability by reason of the conveyance in mort- gage to Nelson Curtis, executed by her and her brother Richard, or has any right of redeeming their undivided share of the estate from the incumbrance created by it. Beside this, it is to be considered that the two mortgages do not describe or incumber exactly the same estate ; for, before the last mortgage deed was exe- cuted, a considerable portion of the land which was embraced in the former had been taken for a public highway and appropriated to the public use. The rights of redemption from the two mortgages are therefore not only not in the same parties, but the terms and conditions upon which they are respectively entitled to exercise their several rights are necessarily and essentially different. The com- bination of these separate and disconnected matters in one bill therefore makes it multifarious; and for this cause the demurrer, which is the proper mode of tak- ing advantage of such an objection, must be sustained." See Ante, § 271, and Post, § 530. ' Whaley v. Dawson, 2 Soh. & Lefr. 367, 370, 371. See Story v. Johnson, 2 Younge & Coll. 586, that a court of equity, in making partition, will have regard to the sub-interests acquired under one tenant in common by distinct purchases from him. ' Ward V. Duke of Northumberland, 2 Anst. 469, 477 ; Cooper, Eq. PI. 183. § 275 - 278.] GENERAL FRAME OF BILLS. 267 § 277. For the same reason, an author cannot file a joint bill against several booksellers, for selling the same spurious edition of his work ; for there is no privity between them ; and his right against each of them is not joint, but is perfectly distinct.^ § 278. It is true, that in this last case, the author has a general right, which he asserts against all persons whatever, who may vio- late that right ; and, thei-efore, it may seem at first view, that it would be proper to join all of them, although not in privity with each other, upon the same ground on which, in the case of a sev- eral fishery, upon a bill of peace, persons claiming by distinct titles, not in privity with each other, may be joined. Perhaps, the true distinction between the cases, (if there be any substantial one,) is, that in the case of the fishery, the right asserted is purely local, and limited to a few persons, who have a common interest against the right set up ; and that common interest centres in the point at issue in the cause. But in the case of a copyright, the claim is absolutely against the whole community ; and it is not fit, in such a case, that the public should be represented, or bound by a suit, in which a few only are parties.^ See also Brinckerhoff v. Brown, 6 John. Ch. K. 139 ; Fellows v. Fellows, 4 Cowen, K. 682. The cases here referred to are included in the class where a right of fishery is claimed against many persons ; or a right of common by or against many persons ; or a right to duties against many persons. See Ante, § 121, 124, 125 ; Cooper, Eq. PI. 40, 41, 184 ; 2 Mont. Eq. PI. 94, note (A. L.) See Boyd v. Hoyt, 5 Paige, R. 65, which seems to have proceeded mainly on local law, and local statutes; and Brinckerhoff v. Brown, 6 John. Ch. R. 139 ; and Fellows v. Fellows, 4 Cowen, R. 682, where the subject was much dis- cussed. ' Dillyu. Doig, 2Ves.jr.486; Cooper, Eq. PI. 182, 183 ; Brinckerhoff u. Brown, 6 John. Ch. R. 155. ' It is not very easy, upon general principles, to reconcile the cases on this sub- ject. In the case of the Mayor of York v. Pilkington, 1 Atk. 283, which was that of the several fishery already cited, (Ante, § 125,) Lord Hardwicke at first held that the defendants could not be joined in the bill, because there was no privity, and they held by distinct titles ; and, therefore, they were so many distinct tres- passers upon the several fishery. But he afterwards changed his opinion, upon the ground, as it should seem, that to prevent multiplicity of suits, bills of peace had been allowed to be brought where there was a general right claimed by the plaintiff, and yet there was no privity between the plaintiffs and the defendants, nor any general right on the part of the defendants ; and many more might be concerned than those before the court. Lord Eldon, in Weale v. Middlesex Water Works Co., 1 Jac. & Walk. 360, already cited, (Ante, § 126, note,) con- sidered the decision to have held that where the plaintiff stated an exclusive right, it signified nothing what particular rights might be set up agamst him. He added 268 EQUITY PLEADINGS. [CH. V. § 278 a. On the other hand, there may be cases, in which mul- tifarious matters of distinct natures may be involved in the bill ; and yet, from the objects of the bill, the objection of -multifarious- ness, as to a particular defendant, ought not to prevail. Thus, for example, if a person before marriage should settle a fund on his wife for life, and after her death on the children of the mar- riage, and the trustees were, after the wife's death, authorized to apply the interest thereof to the maintenance of the children ; and after the marriage he should settle another fund in other trustees for similar purposes ; and afterwards he should by his will make a that it had been long settled that if any person has a common right against a great many of the king's subjects, a court of equity will permit him to file a bill against some of them, taking care to bring so many persons before the court that their interests may be such as to lead to a fair and honest support of the public interest. This language seems very applicable to the claim of a copyright against many violators. On the other hand, in Hilton v. Lord Scarborough 4 Vin. Abridg. 425, pi. 35 ; S. C. 2 Eq. Abridg. 1 7 1 , D., Lord Macclesfield held that a bill to be quieted in the possession of an ancient ferry, used with a rope over the river Ware, brought against twenty defendants, who had cut the rope, (probably at different times,) did not lie ; for, he said, that the plaintiff might have trespass for cutting the rope, and a ferry is in the nature of a public highway ; and a bill does not lie to be quieted in the possession of a highway. That would be to enjoin aU the people of the whole kingdom. Mitf. Eq. PI. by Jeremy, 148 ; 2 Story on Eq. Jurisp. § 858. This case would seem to point to a distinction between a public right and a private right asserted by the defendants, and also between a claim of the plaintiff in derogation of a public right and one merely in derogation of pri- vate or local rights. But the case of Mayor of London v. Perkins, 4 Bro. Pari. Cases, 158; S. C. 3 Bro. P. C. 602, Tomlin's edit., does not seem to have recog- nized the distinction. The opinion of Lord Loughborough, in Dilly v. Doig, 2 Ves. jr. 486, is very imperfectly and obscurely given ; and the language imputed to him seems open to misrepresentation. He said : " The right against the differ- ent booksellers is not joint ; but perfectly distinct ; there is no privity." " In the case cited, (The Mayor of York v. Pilkington,) the bill was to prevent multi- plicity of suits. One general right was liable to invasion by all the world. So, a bill to establish the custom of a mill. They stand upon a distinct ground. I do not remember any case upon patent rights, in which a number of people have been brought before the court as parties, acting all separately upon dis- tinct grounds." Now, the case before his lordship was one of a general right, liable to mvasion by all the world, and the bill would prevent a multiolicity of suits. I cannot but suspect an error in the reporter, and that his'lordship meant to make a distinction between such rights, as the right of the plaintiff of a universal nature, against all the world, and open to invasion by aU, and a mere private right, such as a right to a private several fishery, or a private right of cus- tom to a mill, thus taking the very distinction in 2 Eq. Abridg. 171. See Post, § 278 a.] GENERAL FRAME OF BILLS. 269 part of the trustees in both deeds trustees upon certain trusts for the benefit of his children, and should appoint them executors of his will and guardians of his children in conjunction with his wife ; if, after his death, a bill should be filed by the wife and children against all the trustees in the deed, for an account and execution of the trusts, although, at first view, it might seem open to the objection of multifariousness, yet, inasmuch as all the plain- tiffs have a common interest in the execution of all the trusts, and there cannot be a due execution of some of the trusts, without involving the consideration of all the trusts arising under the deed and the will, the court would not suffer the objection to prevail.^ » Attorney-General v. Poole, 4 Mylne & Craig, 17, 31 ; Campbell v. Mackay, 7 Sim. R. 564 ; S. C. on Appeal, 1 Mylne & Craig, 603. In delivering his judg- ment in this last case, the circumstances of which are but imperfectly stated in the text, Lord Cottenham said : " The first observation that occurs is, that although the defendants are not all trustees of the same deeds, the suit seeks some relief against all of them, and that there is a common interest in all the plaintiffs under all the instruments. The proposition contended for on behalf of the demurring parties is, that, as a general rule, — and the rule is supposed to be supported by the dicta of Sir John Leach, in Salvidge v. Hyde, 5 Madd. 138, — it never can be permitted that distinct matters should be united in the same record. The proposition, of course, if carried to its full extent, would go to prevent the uniting several instruments in one biU, although the same parties were liable in respect of each, and the same parties were interested in the property, which was the sub- ject of each. So that if, for instance, a father executed three deeds, all vesting property in the same trustees, and upon ■similar trusts for the benefit of his chil- dren, although the instruments and the parties beneficially interested under all of them were the same, it would be necessary to have as many suits as there were instruments. That is a proposition to which I do not assent. It would, indeed, be extremely mischievous if such a rule were established in point of law. No possible advantage could be gained by it ; and it would lead to a multiplication of suits in cases where it could answer no purpose to have the subject-matter of the contest split up into a variety of separate bills. To lay down any rule applicable universally, or to say what constitutes multifariousness as an abstract proposition, is, upon the authorities, utterly impossible. The cases upon the subject are ex- tremely various, and the court in deciding them seems to have considered what was convenient in particular circumstances rather than to have attempted to lay d6wn any absolute rule. The language of Sir John Leach, in Salvidge v. Hyde, is of course to be understood with reference to the particular case before him ; and, considered in that point of view, it was perfectly correct, although, stated as a general proposition, it would run counter to a numerous class of cases. The only way of reconciling the authorities upon the subject is by adverting to the fact that, although the books speak generally of demurrers for multifariousness, yet in truth such demurrers may be divided into two distinct kinds. Frequently the objection raised, although termed multifariousness, is, in fact, more properly 23* 270 EQUITY PLEADINGS. [CH. V. So if the bill should contain several matters, all of which may come into consideration, (as, for example, on taking an account,) misioinder; that is to say, the ca.es or claims united in the bill are of bo different a character, that the court will not permit them to be hfgated m one record. It may be that the plaintiffs and defendants are parties to the whole of the transac- tions which form the subject of the suit ; and, nevertheless, those transactions may be so dissimilar that the court will not allow them to be jomed together, but will require distinct records. But what is more familiarly understood by the term multifariousness, a. applied to a bill, is where a party is able to say he is brought as a defendant upon a record, with a large portion of which, and of the ca^emade by which, he has no connection whatever. The form of demurrers for multifari- ousness strongly illustrates this distinction, at least as it used to be understood; for the old form of the demurrers, upon the last mentioned ground, went on to state the evil of uniting distinct matters in one record, whereby parties were put to great and useless expense, an objection which has no application in a case of misjoinder. The distinction is clearly taken in a case which has been very much relied upon, but which by no means bears out the proposition it was cited to sup- port, —the case of Ward v. The Duke of Northumberland, 2 Anst. 469. In that case' the plaintiff had been tenant of a colliery under the preceding duke of Northumberland, and continued also to be tenant under his sOn and successor, the then duke ; and he filed a biU against the then duke and Lord Beverley, who were the executors of their father, seeking relief against them in respect of trans- actions, part of which took place in the lifetime of the former duke, and part be- tween the plaintiff and the then duke, after his, father's decease. To this bill the defendants put in separate demurrers, and the forms of the two demurrers, which were very different, clearly illustrate the distinction I have adverted to. The duke could not say that there was any portion of the bill with which he was not necessarily connected, because he was interested in one part of it as owner of the mine, in the other as representing his father. But his defence was, that it was improper to join in one record a case against him as representative of his father, and a case against him arising out of the transactions in which he was personally concerned. The form of his demurrer was that there was an improper joinder of the subject-matters of the suit. Lord Beverley's demurrer again was totally dif- ferent : it was in the usual form bf a demurrer for multifariousness, and proceeded on the ground that, by including transactions, which occurred between the plain- tiff and the other defendant, with transactions between the plaintiff and the late duke, (with the latter of which only Lord Beverley could have any concern,) the bill was drawn to an unnecessary length, and the demurring party exposed to im- proper and useless expense. Both demurrers were allowed, and both, it may be said, in a sense, were allowed for multifariousness ; but it is obvious that the real objection was very different in the two cases. In Harrison v. Hogg, 2 Ves. jr. 323, which was also more properly a case of misjoinder, the plaintiffs endeavored to unite in one .record a demand, in which all the plaintiffs jointly had an inter- est, with a demand in which only one of them had an interest ; and the demur- rer was allowed upon the ground that the subject-matters were such as, in the opinibn of the court, ought not, according to the rules of pleading, to be included in one suit. In Saxton v. Davis, 18 Ves. 72, the suit prayed an ac- § 278 a.] GENERAL FRAME OF BILLS. 271 as prayed for, although relief may ultimately be given in respect to some of them only, yet the bill will not be deemed multifarious.^ count against the representatives of a bankrupt's assignees, and against Davis, a person who claimed through those assignees, and also against a person who had been his assignee under the Insolvent Debtors' Act ; and there also the bill was held to be bad for multifariousness. One of the cases, which (like that of Lord Beverley in Ward v. The Duke of Northumberland,) applies to the situation of a party, brought before the court as a defendant on the record, where he has an interest in a portion only of the subject-matter, is Salvidge v. Hyde, 5 Madd. 138, in which the demurrer, though overruled by the vice-chancellor, was afterwards allowed by Lord Eldon on appeal, Jac. 141. That was a bill to administer a tes- tator's estate, and to set aside a sale made of a part of it by the executor to a purchaser. Sir John Leach's judgment proceeded upon the principle that as the primary object of the suit was the administration of the estate, and the estate could not be effectually administered without ascertaining whether the sale was to stand or be set aside, the purchaser was properly made a party on the record, with a view to the decision of that question. When the demurrer came before Lord Eldon on appeal, his lordship did not consider that circumstance a suiEcient ground of exception to the general rule ; and he held, that the defendant, claim- ing as a purchaser from the executor, had a perfectly distinct case, and had a right to have that case discussed and decided by itself, without being mixed up in a suit for the general administration of the estate. What would be required in order to support the defendants' proposition, would be some case in which, there being a common interest in the plaintiffs, and the defendants representing and being interested in all the different questions raised on the record, and the suit having a common object, a demurrer for multifariousness had been successful. No case has been produced to show that the court will not permit such a suit to be instituted. But, in the course of the argument, cases were referred to, which prove, when examined, that the court has not gone that length, and that it has always exercised a discretion in determining whether the subject-matters of the suit are properly joined or not. It is not very easy, a priori, to say exactly what is, or ought to be, the line regulating the course of pleading upon this point. All that can be done is, in each particular case as it arises, to consider whether it comes nearer the one class of decisions or the other. A remarkable illustration of the distinction, taken by the court, is to be found in The Attorney-General v. The Merchant Tailors' Company, 5 Sim. 288, and 1 Mylne & Keen, 189. That was an information praying the due administration of a number of charitable trusts, all of which had a common object ; that is to say, although they varied in their terms, and to a certain degree in their object, there was still a great simi- larity ; the funds, in all of them, being applicable to loans for the benefit of free- men of the corporation of Merchant Tailors. In one of those trusts, however, another corporation had such an interest as, in the opinion of the appellate court, rendered that other corporation a necessary party to the suit, before the particu- lar trust in which it was concerned could be carried into execution ; and it was there contended, that those charities could not be united in one information, be- ' Addison v. Walker, 4 Younge & Coll. 444. 272 EQUITY PLEADINGS. [CH. V. § 279. All the foregoing are cases, where the objection of mul- tifariousness arises on account of various defendants being improp- cause they were of different foundations, and depended upon different grants, and that it was therefore a misjoinder, or, according to the language of the de- murrer, multifarious, to unite so many different objects in one suit. The court, however, did not acquiesce in that reasoning ; but held, that in so far as the de- fendants had a common responsibility, and the trusts had a common object, the charities were all properly joined ; but there being one particular charity, in which a third party had such an interest as to make him a necessary party, if the trusts of it were to be administered, the court considered that the administration of that charity could not be comprised in the same information with the rest ; not on the ground of a misjoinder, but according to the ordinary form of the objec- tion, because the party, so made a defendant on account of his interest in that single charity, had no connection with the other charities, and was involved by the suit in complicated and expensive proceedings, although he was concerned with a small part only of the subject-matter in litigation. The decision of the present vice-chancellor, in The Attorney-General v. The Goldsmiths' Company, 5 Sim, 670, went upon the same principle, though it came to a different conclu- sion ; for his honor, in giving judgment, plainly showed, that he considered the rule, which I before stated to be extracted from The Attorney-General v. The Merchant Tailors' Company, as the rule to be adopted in practice. In that case, there were several distinct defendants and several distinct charities. The infor- mation stated the trust of one of the charities, and then alleged the existence of several others for similar purposes, but without setting out or specifying the orii^i- nal endowments ; and his honor held, that what the information so alleged was not sufficient to show to the court that the other trusts were of so similar a na- ture, as to justify their being united in one record. That such was the view on which the court proceeded, is manifest from the language of the judgment. ' If it had been so alleged in the information as to show that the character of all these other bequests was homogeneous, although there might be minute differences be- tween them, they might all have been comprised in the same information.' The result of the principles, to be extracted from those two cases, negatives the prop- osition, that where there is a common liability and a common interest, the com- mon liability in defendants and the common interest in plaintiffs, different grounds of property cannot be united in one and the same record. On the contrary, both these cases are consistent with the doctrine that they may be so united. The case of Turner v. Robbson, 1 Sim. & Stu. 313, which was also referred to in the argument, was a very strong case ; and I believe the present vice-chancellor has said of it, that he could not acquiesce in the propriety of the judgment. Never- theless, it shows the opinion of the learned judge, who decided it, and proves how little disposed he was to entertain the objection of multifariousness, where the justice of the case did not absolutely require it. The case of Knye v. Moore, 1 Sim. & Stu. 61, was a very remarkable instance of the court deciding against an objection, which more properiy would be a misjoinder; and it is not, therefore, in strictness, to be classed with other cases, which I have already mentioned. There, a mother, who claimed an annuity for herself, joined her children with her as co-plaintiffs in a biU, the object of which was to estabUsh two distinct § 279.] GENEEAL FRAME OF BILLS. 273 erly joined in a suit upon distinct and independent matters. But the like principle equally applies to an improper joinder of plain- tiffs, who claim no common interest, but assert distinct and sev- eral claims against one and the same defendant.^ Thus, for ex- ample, if two plaintiffs should, in one bill, bring a joint demand, and a several demand, against the same defendant, it would be demurrable on the ground of multifariousness.^ So, if two plain- tiffs, claiming under distinct promissory notes given to them sev- erally, should file a joint bill on account thereof. So, if two plain- tiffs, who had given distinct and several promissory notes to the defendants, should file a joint bill to recover back money paid by them severally to the defendants on those notes, it would be de- murrable ; for the several contracts have no connection with each other.^ So, if A, B, and C, being the next of kin, and D, being the sole heir at law, should unite in one suit against an adminis- trator for an account of the personal and real estate of the intes- tate, the bill would be multifarious ; for the claims of the next of kin to an account of the personal estate, are wholly distinct from claims, arising under separate instruments ; the mother claiming an annuity under one, and the mother and children claiming the benefit of a settlement under the other ; and that was held not to be multifarious. In Kensington v. White, 3 Price, 164, a bill was filed by seventy-two underwriters to restrain several actions on different policies effected upon different ships. The defendants, indeed, had a common interest in all, because they were the owners of the ships, and plain- tiffs in all the actions ; but here were seventy-two individuals, all not only liable to separate actions, but actually defendants in separate actions, united together against the parties, who were plaintiffs in all the actions, for the purpose of ob- taining, by one bill, a discovery in aid of the defence against all the actions ; and that was held in the court of Exchequer not to be multifarious. It is not, how- ever, necessary for the present purpose to carry the doctrine to anything like that extent. This is simply the case of three instruments, under each of which the plaintiffs are entitled to a fund, and the defendants who demur are all of them accounting parties ; the only peculiarity in the case being, that the defend- ants are not all parties to all the instruments in respect of which the relief is prayed." Campbell «. Mackay, 1 Mylne & Craig, R. 617-625. See Post, § 283 -284 a, 530, 538, 541. See also Lumsden v. Frazer, 7 Sim. R. 555; S. C. 1 Mylne & Craig, 589. ' Exeter College v. Rowland, 6 Madd. R. 94 ; Yeaton v. Lenox, 8 Peters, R. 123; Ante, § 232, 236, 237; Post, § 509, |30, 541, 544. As to misjoinder of plaintiffs in a bill of discovery in aid of a defence to an action at law, see Post, §569. ' Harrison v. Hogg, 2 Ves. jr. 232, 328 ; Cooper, Eq. PI. 183 ; Boyd v. Hoyt, 5 Paige, R. 65. ' Yeaton v. Lenox, 8 Peters, R. 123. 274 EQUITY PLEADINGS. [CH. V. those of the heir to the real estate.^ So, if several distinct hold- ers of scrip or shares in a loan should sue on behalf of themselves and all others, to have their subscriptions refunded, the bill would be multifarious ; for their interests and demands are distinct and several.2 [So, in a bill by five several occupiers of houses in a town, to restrain the erection of a steam-engine, which would be a nuisance to each of them, they cannot sue as co-plaintifiFs, for each has a distinct right.^] § 279 a. But the objection of misjoinder does not apply, where all the parties plaintiffs have an interest in the suit, although it is not a coextensive interest. Thus, a tenant for life and a re- mainder-man may join as plaintiffs in the same suit respecting their interest in the estate. So, a widow and her children, who have successive interests in the same trust, may unite as plain- tiffs in one bill to enforce the trust, where there has been a breach thereof, as well against a stranger, as against the trustee.* § 279 h. It has also been said, that a person may maintain a suit, q,s sole plaintiff, although uniting in himself several charac- ters, having distinct conflicting rights in the subject-matter of the suit. But the court in a suit so constituted will not decide upon the conflicting rights vested in the plaintiff; but will only make provision by its decree for the protection of the defend- ants from any prejudice, which may arise from the peculiar con- stitution of the suit.^ § 280. The same objection of misjoinder or multifariousness equally lies, where two distinct matters are united in the same bill, brought by a single plaintiff against the same defendant.^ ' Maud V. Acklom, 2 Sim. R. 331 ; Dunn v. Dunn, 2 Sim. R. 329. There is an apparently anomalous decision in Turner v. Robinson, 1 Sim. & Stu. 313 ; Turner v. Doubleday, 6 Madd. R. 94. But it was disapproved of in a later case cited in Dunn v. Dunn, 2 Sim. R. 329, note (a). In Lord Foley v. Carlon, 1 Younge, R. 373, an objection for multifariousness, in joining several defendants, was overruled. But it does not appear upon what precise ground this was done, although probably from there being in effect a joint charge of fraud against all the defendants. ' Jones V. Garcia del Rio, 1 Turn. & Russ. 297 ; Ante, § 236, 237 ; Post, § 509, 540, 541, 544. , * Hudson V. Maddison, 12 Simons, 416. * Buckeridge v. Glasse, 1 Craig & Phill. 126. ' Blease v. Burgh, 2 Beavan, R. 221. ' This subject will be found more fully examined hereafter. See Post, §530-640. §279-281] GENERAL FRAME OF BILLS. 275 Thus, for example, where a bill was brought for a discovery, and also for a commission to examine witnesses abroad, in aid of a defence at law to two separate actions, for two separate and dis- tinct libels, brought by the same plaintiff against the same defend- ant, and the bill sought to have the examinations of the witnesses taken under one commission, and not distinct commissions to issue as to each action ; the bill was on demurrer held multifa- rious ; for it might retard or prejudice the proceedings of the plaintiff at law in one action, by requiring him to wait until the depositions for both were returned, and the defendant was pre- pared for his defence and trial in both.^ Besides, the depositions taken under the commission, must be published and used at the trial, which should first take place, although it might happen, that the witnesses in the second action might come within the jurisdiction, before the trial of the latter action ; and thus the premature publication of the testimony, in opposition to the prin- ciples and practice, upon which courts of equity act in such cases, might be dangerous to truth and justice at the second trial.^ But the broader and more general ground is, the inconvenience of mixing up distinct matters, which may require very different proceedings or decrees by the court, and embarrass the defend- ant in equity in his proper defence against each.^ On this ac- count, it would have made no difference in the case, if the plaintiff had prayed for two distinct commissions in the bill ; for, not only would such a suit be an entire novelty in the court, but injustice would be done to the defendant in equity by compelling him to wait for his costs upon the first commission, until the return of the second.* § 281. For the like reason, where a bill impeached a will on account of the alleged incapacity of the testator, and sought to take testimony de bene esse in a suit already brought, and also to perpetuate the testimony of witnesses, on a demurrer, the court held the bill multifarious ; for the decretal order for the publication of the testimony would be very different on a com- mission de bene esse, from what it would be on a commission to perpetuate the testimony.^ ' Shackell n. Macauley, 2 Sim. & Stu. 79. ' Ibid. '■ See Attorney-General v. St. John's College, 7 Sim. E. 241 ; Post, § 532, note. * Shackell v. Macauley, 2 Sim. & Stu. 79. ' Dew V. Clarke, 1 Sim. & Stu. 108 ; 2 Story on Equity Jurisp. § 1516. 276 - EQUITY PLEADINGS. [CH. V. § 281 a. So, where a testator gave an annuity to A, and certain leasehold property to his children, with a direction for their re- newal of the leases, and A brought a bill for his annuity, and also as next friend of the children to have the leases renewed, it was held, that thus uniting these distinct interests was improper, and the bill was demurrable for misjoinder thereof.^ So, a bill in the form of an equitable ejectment and of a bill to redeem, brought against another person, will.be demurrable as multi- farious.^ § 282. So, where an information against a corporation alleged, that the corporation was seised of certain real estates for pur- poses of public utiUty, and of other real estates in trust for pri- vate charity, and charged a misapplication and abuse of both funds, the court held the bill multifarious ; for the case of the one fund was wholly distinct from the other, as to rights and objects.^ The same objection was held to be well taken to a bill, which -mixed up various donations given for various purposes, alleged to be misapplied by the same defendants.* [So, where there are two railway companies, and a shareholder in one filed his bill on behalf of, &c., against both companies, complaining that the directors of one had illegally invested the funds in shares in the other, and also complaining of a separate transaction whereby the capital of the first had been advanced to the other upon an arrangement not authorized, and praying relief against the several directors, the bill was held multifarious.^] [* 282 a. The question of multifariousness on the ground of ' Anderson v. Wallis, 4 Younge & Coll. R. 336 ; S. C. 1 Phillips, Ch. K. 202. ^ Plumbe V. Plumbe, 4 Younge & Coll. 345. ' Attorney-General v. Carmarthen, Cooper, R. 31 ; Johnson v. Johnson, 6 John. Ch. K. 163. * Attorney-Genera! v. Goldsmith's Company, 5 Sim. 670. It is said by Lord Eedesdale, that, as the defendants may combine together to defraud the plaintiff of his rights, and such a combination is usually charged in the bill, it has been held, that the defendant must s6 far answer the bill, as to deny combination. \Mitf Eq. PI. by Jeremy, 181. The case of Powell' y. Arderne, 1 Vern. K. 416, fully supports this statement. But the proposition, so far as it applies to the general charge of combination, is now overruled ; and it is maintainable only, where a special combination is charged. Ibid, note (S) ; Cooper, Eq. PI. 183. See also Mr. Raithby's note to Powell v. Arderne, 1 Vern. 416, and Landsdowne «;. Elderton, 8 Ves. 526, 527; Oliver t.. Haywood, 1 Anst. R. 82; Brookes v. Lord Whitworth, 1 Madd. R, 86. ' Salomons v. Laing, 12 Beavan, 339. I § 281 a - 283.] general frame of bills. 277 the joinder of distinct causes of action is sometimes a perplex- ing one, and one that often embarrasses the court, instead of reliev- ing it, the professed ground upon which the objection goes. And there is no question that distinct causes of action which are of a kindred nature might be joined in a suit in equity, the same as at law, without serious embarrassment ; but the rule seems to be other- wise in equity. If the claims are entirely distinct in their nature, it matters not how nearly related they may be to each other, they cannot ordinarily be joined in the same suit. And where the claim is for the land, or the value of it, against the plaintiff's agent, because he sold it under value to his own partners ; and against the purchaser, because he was in such relations of privity to the plaintiff that he holds it as trustee, it cannot be tried in one suit, because it constitutes two distinct causes of action.^] § 283. However, although a bill is ordinarily open to objection for multifariousness, which contains two distinct subject-matters, wholly disconnected with each other ; yet, if one of them be clear- ly without the jurisdiction of a court of equity for redress, it seems, that the court will treat the bill, as if it were single, and proceed with the other matter, over which it has jurisdiction, as if it con- stituted the sole object of the bill.^ And even if there be a mis- joinder of a party plaintiff, and the objection is not taken until the hearing, the court will sometimes permit a decree to be made at the hearing, when it appears that notwithstanding the misjoinder, justice can be done to all parties.^ So, if there be a misjoinder of parties as co-plaintiffs by mere want of interest, the objection can in general be taken advantage of only by plea or demurrer.* But, if the plaintiffs have conflicting interests, then the objection may be taken at the hearing.^ [* ' Gardner v. Ogden, 22 N. Y. Kep. 327. See also Morton v. Well, 33 Barb. 30 ; Wade v. Rusher, 4 Bosw. 537 ; Cauley v. Lawson, 5 Jones, Eq. 132 ; Fleming v. Gilmer, 35 Alab. 62.] 2 Knye v. Moore, 1 Sim. & Stu. 61; Dew v. Clarke, 1 Sim. & Stu. 108; Varick v. Attorney-General, 5 Paige, K. 137, 160; Pringle v. Cooks, 3 Younge & Coll. 666 ; Ante, § 273. The proper course for the defendant in such a ease is said to be, to answer to the proper matter within the jurisdiction of the court, and to demur to the other for want of equity ; or the defendant might answer to both, and make the exception, as to the want of equity in the latter, at the hearing. Varick v. Smith, 5 Paige, K. 160 ; Ante, § 278 a; Post, § 544. ' Lambert jj. Hutchinson, 1 Beavan, K. 277, 286; Ante, § 237; Post, § 530, 541, 544. * Davies v. Quartennan, 4 Younge & Coll. 257. ^ Ibid. EQ. PL. 24 278 EQUITY PLEADINGS. [CH. V. § 284. A bill is not to be treated as multifarious, because it joins two good causes of complaint, growing out of the same trans- action, where all the defendants are interested in the same claim of right, and where the relief asked for in relation to each is of the same general character.^ Neither will a bill be deemed multifari- ous, where it states a right to an account from A, and B, against whom it has one remedy, which it seeks to enforce, and also claims a lien against A, for what is due, and seeks that separate remedy against him ; for the plaintiff may well in such a bill entitle him- self to each.2 Indeed, the objection of multifariousness, and the circumstances under which it will be allowed to prevail, or not, is in many cases, as we shall hereafter see, a matter of discretion, and no general rule can be laid down on the subject.^ [* 284 a. A bill is not to be regarded as multifarious, because it embraces a subject-matter, which might be made the occasion of numerous suits at law, whether between the same or different par- ties ; nor is a suit demurrable because a remedy at law exists, if such remedy consists of numerous actions, this being in itself one ground of exclusive equity jurisdiction, in order to save such mul- tiplicity of suits.*] § 284 b. In respect to the manner of taking the objection of multifariousness, it will more fully come under consideration in a subsequent part of this work.^ But it may be proper here to state, that the objection is usually taken by way of demurrer ; and if not so taken, and the cause goes on to a hearing, the objection will not then be always fatal to the suit. Indeed, strictly speaking,, the objection is then waived by the parties ; although the court propria jure may insist upon it.^ Where a joint claim against two defendants is improperly joined with a separate claim against one of them, both or either may demur to the bill for multifariousness; and it will be held bad as to the party demurring.^ ^ Varick v. Smith, 5 Paige, E. 160; Bugbee v. Sargent, 23 Maine, 269. In Boyd V. Moyle, 2 Colly er, 316, a bill which prayed an injunction of two several and distinct actions, was held not to be multifarious. Ante, § 161, note, 271 a, 278 a. ^ Manners v. Rowley, 10 Sim. 470. " Hoggart V. Cutts, 1 Craig & Phill. 204 ; Post, § 291, 530-540. [* * Swift V. Larrabee, 31 Conn. R. 225 ; Crews v. Burcham, 1 Black, 352.] ^ Post, § 530-540. » Greenwood v. Churchill, 1 Mylne & Keen, 546 ; Oliver v. Piatt, 3 Howard, S. C. E. 333 ; Nelson v. Hill, 5 How. U. S. 127. ' Boyd V. Hoyt, 5 Paige, R. 65. § 284 - 286.] GENERAL FBAME OF BILLS. 279 § 285. Another exception to the general doctrine respecting multiiariousness and misjoinder, which has already been alluded to, is, where the parties (either plaintiffs or defendants) have one common interest touching the matter of the bill, although they claim xinder distinct titles, and have independent interests.'^ The cases respecting* rights of common, where all the commoners may join, or one may sue or be sued for all ; of parishioners to estab- lish a general modus ; or of a parson to establish a general right of tithes against parishioners ; and others of a like nature, already stated under another head, fully exemplify the doctrine ; for in all of them there is a common interest centring in the point in issue in the cause .^ § 285 a. The same principle has been held to apply, where the plaintifiFs claim real or personal estate under one title, and bring their suit against various defendants, who claim the same estate under distinct and separate sales of different parcels thereof to them separately, where the gravamen of fraud or wrong in the sales is the same, and equally applies to all. As, for example, where the plaintiffs claimed under a will made in 1813, alleging that the same had been suppressed by the executors, and a prior will ad- mitted by the executors to probate by fraud, and that sales of the property were made to different purchasers under the prior will, and that the purchasers (who, as well as the executors, were made parties to the bill) were cognizant of the fraud ; it was held, on demurrer, that the bill was not multifarious in joining all the pur- chasers and the executors, but was maintainable against them all.^ § 286. The same principle has been supposed properly to jus- tify the joining of several judgment creditors in one bill against their common debtor and his grantees, to remove impediments to their remedy, created by the fraud of their debtor in conveying his property to several grantees, although they take by separate conveyances, and no joint fraud in any one transaction is charged against them all. In such a case (it is said) the fraud equally affects all the plaintiffs, and they may jointly sue ; and all the de- ' Ante, § 120, 121. " Ante, § 120, 121 ; Cooper, Eq. PI. 40, 41, 184; Mitf. Eq. PI. by Jeremy, 170, 182; Ward v. Duke of Northumberland, 2 Anst. 469, 477; Brinckerhoff v. Brown, 6 John. Ch. R. 139. See Fellows v. Fellows, 4 Cowen, R. 682. ' Gaines & Wife v. Chew, &c., 2 How. Sup. Ct. R. 619; Post, § 530-540 ; Post, § 534. 280 EQUITY PLEADINGS. [CH. V. fendants are, implicated in it in different degrees and proportions, and tlierefore are properly liable to be jointly sued.^ § 286 a. The same principle has been supposed to justify the uniting in one bill for discovery and relief, or for discovery merely, of distinct underwriters, upon the same policy or upon different policies, as plaintiffs, upon the ground of a common fraud, which vitiated all the policies, and furnished a good ground of defence at law, as well as a good ground to cancel all the policies, if it was fully established in proof; for, under such circumstances (it is said) they have a common interest.^ § 286 b. On the other hand it has been held that a bill filed by five several occupiers, of houses in a town, to restrain the erection of a steam-engine which would be a nuisance to each of them, is 1 Brinokerhoff v. Brown, 6 John. Ch. R. 139. In Brinckerhoflf v. Brown, 6 John. Ch. R. 157, Mr. Chancellor Kent, after an elaborate review of the cases, said : " The principle, to be deduced from those cases is, that a bill against sev- eral persons must relate to matters of the same nature, and having a connection with each other, and in which all the defendants are more or less concerned, though their rights in respect to the general subject of the case may be distinct. And when we consider, that the plaintiffs, in the case now before me, are judg- ment creditors, having claims against the Genesee Company perfectly estab- lished, and not the subject of litigation in this suit; and that the general right claimed by the bill is a due application of the capital of that company to the payment of their judgments ; that the subject of the bill and of the relief, and the only matter in litigation is, the fraud charged in the creation, management, and disposition of that capital ; and in which charge all the defendants are im- plicated, though in different degrees and proportions; I think we may safely conclude, that this case falls within the reach of that principle, and that the demurrer cannot be sustained." In the case of Fellows v. Fellows, 4 Cowen, K. 682, the same principle was fully carried out by the Court of Errors, after a very full discussion. S. P. Dix v. Briggs, 9 Paige, R. 595 ; Sizer v. Miller, 9 Paige, R. 605. See also Boyd v. Hoyt, 5 Paige, R. 65 ; Blackett v. Lainbeer, 1 Sand- ford, 366. The case of Lord Foley v. Carlon, 1 Younge, R. 373, seems (as already intimated) to have proceeded upon the ground of a joint charge of fraud; but it has a close resemblance to the cases in 6 John. Ch. R. 139, and 4 Cowen, R. 682. AVynne v. Callender, 1 Russ. R. 293, seems distinguishable from that in 1 Younge, R. 373, principally on the ground, that there was no joint charge of fraud in all the holders of the bills. Without meaning to ques- tion the doctrine above referred to, it may well be doubted, whether there are any English authorities, which fully bear out the propositions in the cases in 6 John. Ch. R. 139, and 4 Cowen, R. 682, or are easily reconcilable with them. Ante, § 161, note; Post, § 537 and note, § 537 a. "" Kensington v. White, 3 Price, R. 164 ; Mills v. Campbell, 2 Younge & Coll. 389, 396, 397. See Ante, § 161, and note, 230, 278 and note; Post, § 537 and note, 537 a. See also Campbell v. Mackay, 1 Mylne & Craig, 624, 625. § 286 - 288.] GENERAL FRAME OF BILLS. 281 not maintainable, but is open to the objection of a misjoinder of parties, upon the ground that each of them has a separate nuisance to complain of, and that what is an answer to one may not be an answer to another, and if upon such a bill a decree is to be pro- nounced, it must be a decree to provide for five different cases, standing upon separate rights. It is not easy to reconcile the doc- trine of this case with that of some others.^ § 287. In the next place, a bill may be objectionable for tlie opposite fault to that of multifariousness, that is to say, for an un- due divisibility or splitting up of a single cause of action, and thus multiplying subjects of litigation. Courts of equity, (as we have seen,) discourage, in various forms, the promotion of unreason- able litigation ; and on this groimd, for the purpose of preventing a multiplicity of suits, they will not permit a bill to be brought for a part of a matter only, where the whole is the proper subject of one suit.^ Thus, for example, they .will not permit a party to bring a bill for a part of one entire account ; but will compel him to unite the whole in one suit ; for, otherwise, he might split it up into various suits, and promote the most oppressive litigation.^ Upon a ground somewhat analogous, if an ancestor has made two mortgages to the same person, the heir will not be allowed to re- deem one without the other ; for, in such a case, the equity of the heir, like that of the ancestor, is to redeem the whole or none.* § 288. In the next place, where the sole foundation of the ju- risdiction in equity is the want of a discovery, and, as incident thereto, relief is consequent upon that discovery, care must be taken so to frame the bill and accompanying affidavit, as to bring it clearly within the admitted doctrine and practice of the court. Thus, a bill seeking a discovery of deeds or writings, sometimes prays relief, founded on the deeds or writings, of which the dis- covery is sought. If the relief so prayed be such, as might be*ob- tained at law, if the deeds or writings were in the custody of the * Hudson V. Maddison, 12 Simons, K. 416. 2 Cooper, Eq. PL 184, 185; Mitf. Eq. PI. by Jeremy, 183. ' Cooper, Eq. PL 184, 185; Purefoy v. Purefoy, 1 Vern. 29; Mitf. Eq. PL by Jeremy, 183 ; Newland v. Kogers, 3 Barb. Gh. R. 435. * Purefoy v. Purefoy, 1 Vern. 29 ; Shuttleworth v. Laycock, 1 Vern. 245 ; Margrave v. Le Hooke, 2 Vern. 207 ; Coleman v. Winch, 1 P. WilL 775 ; Wil- lie V. Lngg, 2 Eden, R. 78, 80; 2 Story on Equity Jurisp. § 1023, note (1) ; Ex parte Carter, Ambler, R. 733 ; Ireson v. Denn, 2 Cox, R. 425 ; Johnes v. Smith, 2 Ves. jr. 376. 24* 282 EQUITY PLEADINGS. [CH. V. plaintiff, he must annex to his bill an affidavit, that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the defendant. But a bill for a discovery merely, or which only prays the delivery of deeds or writings, or equitable relief, grounded upon them, does not require such an affidavit.^ § 289. The matters of the bill should be such, as clearly to en- title the party to all the discovery which he seeks in aid of his prayer for relief; for, if the discovery is not material, the bill will, upon this point, be open to demurrer. Thus, where a bill, filed by a mortgagor against a mortgagee to redeem, sought a discov- ery, whether the mortgagee was a trustee, a demurrer to the dis- covery was allowed ; for, as no trust was declared upon the mort- gage, it was not material to the relief prayed, whether there was any triist reposed in the mortgage, or not.^ § 290. In conclusion it may be added, that in all cases, where the interference of a court of equity is sought, the plaintiff- should not only clearly show his title, and right to demand the assistance of the court in his favor ; but also that the case is one of which the court has jurisdiction, and to which it ought to apply its remedial justice. If this is not done, the suit is fatally defective, and the bill must fail.^ ' Mitf. Eq. PI. by Jeremy, 54 ; Cooper, Eq. PI. 61. = Mitf. Eq. PI. by Jeremy, 192; Harvey v. Morris, Rep. Temp. Finch, 214; 2 Story on Equity Jurisp. § 1497. ' See Mitf. Eq. PI. by Jeremy, 110, 125, 133, 141, 154, 155, 163 ; Ante, § 10, 241 ; Cooper, Eq. PI. 179 ; Bedell v. Hoffman, 2 Paige, K. 199 ; Barton's Suit in Eq. 45, 46. §288-291.] BILLS OF INTERPLEADER. 283 CHAPTER VI. BILLS OF INTERPLEADRR AND CERTIORARI. [* § 291. Definition of bill of interpleader. § 292. Prerequisites to maintaining such bill. § 293. Some privity must exist among the claimants. § 294. Where none exists, this is not the appropriate remedy. 5 295. Must show persons capable of interpleading, &c. § 296. Plaintiff must show title to compel interpleader. § 297. Other requisites stated. § 297 a. The duty to interplead may be contested. § 297 b. The proper distinction between bills of interpleader and bills in the nature of bills of interpleader. § 297 c. Recent English decision upon the subject. § 298. Definition and use of bills of certiorari.] § 291. There are two other sorts of original bills for relief, namely, bills of Interpleader, and bills of Certiorari, upon the structure of which it may be proper to say a few words. A bill of interpleader is ordinarily exhibited, where two or more per- sons claim the same debt, or duty, or other thing, from the plain- tiflf, by different or separate interests ; and he, not knowing to which of the claimants he ought of right to render the same debt, duty, or other thing, fears that he may suffer injury from their conflicting claims, and therefore he prays, that they may be compelled to interplead, and state their several claims, so that the court may adjudge, to whom the same debt, duty, or other thing, belongs.^ As every such bill is founded upon the admitted 1 Mitf. Eq. PL by Jeremy, 48, 49, 141 ; Cooper, Eq. PL 45, 56 ; Crawshay v. Thornton, 7 Sim. R. 391 ; S. C. 2 Mylne & Craig, 1, 21 ; 1 Eq. Abridg. 80, I, marg. ; 2 Story on Equity Jurisp. § 806-824; 1 Mont. Eq. PI, 232; Fenn v. Edmonds, 5 Hare, E. 314. See East India Company v. Campion, 11 Bligh, R. 181, 182 ; Atkinson v. Manks, 1 Cowen, R. 691 ; Strange v. Bell, 11 Geo. 103 ; Bell V. Hunt, 3 Barb. Ch. K 391. In Hoggart v. Cutts, 1 Craig & Phill. 204, Lord Cottenham said : " The definition of interpleader is not, and cannot, now be disputed. It is where the plaintiflF says, I have a fund in my possession, in ■which I claim no personal interest, and to which you, the defendants, set up con- flicting claims ; pay me my costs, and I will bring the fund into court, and you shall contest it between yourselves. The case must be one in which the fund is matter of contest between two parties, and in which the litigation between those parties will decide all their respective rights with respect to the fund." See also 284 EQUITY PLEADINGS. [CH. VI. want of interest in the plaintiff, and is, at the same time, suscep- tible of being used coUusively to give an undue advantage to one of the contending parties, two things are required as pre- cautions to prevent any abuse of the proceeding. In the first place, the plaintiff must annex an affidavit, that there is no col- lusion between him and any of the parties ; in the next place, if there is any money due, he must bring it into court, or at least offer to do so by his bill.^ If he does not do so, it is in strict- ness a good ground of demurrer.^ § 292. In a bill of interpleader, it is necessary, that the plain- tiff should state his own rights, and thereby negative any interest in the thing in controversy ; and he should also state the several claims of the opposing parties.^ If the bill does not show, that each of the defendants whom it seeks to compel to interplead, claims a right, both of the defendants may take the objec|;ion by demurrer ; one, because the bill shows no claim of right in him ; the other, because the bill, showing no right in. the codefendant, shows no cause of interpleader.* [And a mere pretext of a con- flicting claim is not sufficient ; the court must see there is a question to be tried.^] An objection equally fatal will be, that 2 Story on Eq. Jurisp. § 81 7 i, where the opinion of Lord Cottenham, in Craw- shay V. Thornton, 2 Mylne & Craig, 19, is cited at some length in the note. See also Bignold v. Audland, 11 Sim. R. 23, 24; Glyn v. Duesbury, 11 Sim. R. 139, 147, 148 ; 2 Story on Equity Jurisp. § 806, note ; Shaw v. Coster, 8 Paige, R. 339. The subject of interpleader generally is fully treated in 2 Story on Eq. Jurisp. § 800-825. » Mitf. Eq. PI. by Jeremy, 49, 143 ; Cooper, Eq. PI. 49, 50 ; Barton's Suit in Eq. 47, note (1) ; 2 Story on Eq. Jurisp. § 809 ; Post, § 297. ' Ibid.; Metcalf v. Hervey, 1 Ves. 248 ; Hyde v. Warren, 19 Ves. 322, 323 ; Dungey v. Angove, 3 Bro. Ch. R. 36. ' Mitf Eq. PI. by Jeremy, 49, 141, 142 ; 1 Mont. Eq. PI. 232, 233. In Dungey V. Angove, 2 Ves. jr. 311, Lord Loughborough is reported to have said : " The bill is singular, for it suggests a case. An interpleading bill never does that. It is not very clear what his lordship meant by this statement. In one sense, every bill of interpleader must suggest a case, that is, it must suggest a case which justifies the interposition of the court. What his lordship proLably meant was, that it never suggests the whole case of the defendants, or the validity of their respective titles, by a full display and comparison of them, calling upon the court to interpose and decide upon such statement of them. See Mohawk and Hudson Railroad Com- pany;). Clute, 4 Paige, 384, 391. • Mitf Eq. PI. by Jeremy, 142 ; 2 Story on Equity Jurisp. § 821 ; Shaw v. Coster, 8 Paige, R. 339. i- s . ' Cochrane v. O'Brien, 2 Jones & La. T. 380. § 291 - 294.] BILLS OF INTERPLEADER. 285 the plaintiff shows no right to compel the defendants to inter plead, whatever rights they may claim.^ ^293. The claims, too, should be specifically set forth, so that they may appear to be of the same nature and character, and the fit subject of a bill of interpleader. This position may easily be illustrated by stating, that bills of interpleader (at least in- dependently of statutable provisions) do not ordinarily lie, ex- cept in cases of privity of some sort between all the parties'; such as privity of estate, or title, or contract, and where the claim by all is of the same nature and character.^ Where the claimants assert their rights under adverse titles, and not in privity, and where their claims are of different natures, the bill is wholly immaintainable.^ Thus, if an estate is put up for sale at auction, and A becomes the purchaser, and pays his deposit ; and then, by order of the same owner, it is set up again for sale, and B becomes the purchaser, and pays his deposit ; such a case is not a proper case of interpleader, if each demands his deposit from the stakeholder ; for A and B do not claim in privity, and their deposits are distinct.* § 294. Upon the like ground, a tenant, liable to pay rent, may file a bill of interpleader, where there are several persons claiming title to it in privity of contract, or of tenure, to compel them to ascertain to whom it is properly payable.^ But if a mere stranger should set up a claim to the rent by a title paramount, and not in privity of contract or tenure ; or if he should set up a claim of a different nature, such as a claim to the mesne profits, in virtue of his title paramount; in either case, no bill of inter- 1 Mitf. Eq. PI. by Jeremy, 142, 143. But see East and West India Dock Com- pany V. Littledale, 7 Hare, 57. ' 2 Story on Equity Jurisp. § 807-821. ' Mitf. Eq. PI. by Jeremy, 142, 143, note (r) ; Cooper, Eq. PI. 48 ; Dungey V. Angove, 2 Ves. jr. 304 ; Smith v. Target, 2 Anst. K. 529 ; Johnson v. Atkin- son, 3 Anst. R. 798 ; Crawshay v. Thornton, 7 Sim. R. 391 ; S. C. 2 Mylne & Craig, 1 ; Jew V. Wood, 3 Beavan, R. 679 ; S. C. 1 Craig & Phill. 185. * Hoggart V. Cutts, 1 Craig & Phill. 197, 205 ; Ante, § 291 ; Post, § 294, 297. See also Cochrane v. O'Brien, 2 Jones & La. T. 380. ' Ibid. ; 2 Story on Eq. Jurisp. §811-821; Badeau v. Tylee, 1 Sandford, Ch. R. 270. See also Lowndes v. Cornford, 18 Ves. 299 ; Langston v. Boylston, 2 Ves. jr. 101 ; Dungey v. Angove, 2 Ves. jr. 304, 310, 312 ; Jew v. Wood, 3 Beavan, R. 391 ; S. C. 1 Craig & Phill. 185 ; Crawshay v. Thornton, 7 Sim. R. 391 ; S. C. 2 Mylne & Craig, 1 ; Ante, § 291. 286 EQUITY PLEADINGS. [CH. VI. pleader would lie in behalf of the tenant ; for the debt or duty is not the same in nature or character.^ § 295. The bill should also show, that there are proper persons in esse, capable of interpleading, and of setting up opposite claims ; for, otherwise, the objects of the bill would be unattainable. On this account, where a bill was brought, founded on a rumor, that there was issue by a person, which issue was suggested to be enti- tled to the estate in question, and praying, that if there was any such person, he might interplead with the defendant, the bill was held to be one of a novel impression, and fatally defective.^ .The bill would be equally defective, if it did not admit, and show a title in each of the claimants.^ § 296. The remarks, hitherto made, are applicable to the titles and claims asserted by the parties, who are called upon to inter- plead. But the plaintiff should also show a clear title in himself to maintain the bill ; for, otherwise, the bill will be dismissed, however proper in other respects the case might be for an inter- pleader.^ Thus, for example, if the bill should show, that the title of the plaintiff is that of an agent of one of the parties only, as if he had received money by the authority of his principal and for his use, he would be bound to pay over the money to his principal, notwithstanding any intervening claims of a third person; for a mere agent, to receive for the use of another, cannot be converted into an implied trustee by reason of an adverse claim, since his possession is the possession of his principal.* § 297. For a like reason, the plaintiff should show in his bill, that he claims no interest himself ; for it is in truth the very foun- dation of his bill, that he is a mere holder of the stake, which is equally contested by the defendants, and that he is wholly indif- ' Dungey v. Angove, 2 Ves. jr. 304, 310 ; Johnson v. Atkinson, 3 Anst. R. 798 ; 2 Story on Eq. Jurisp. § 812 ; Cooper, Eq. PI. 48, 49 ; Langston v. Boybton, 2 Ves. jr. 101, 108 ; Clarke v. Byne, 13 Ves. 383, 386 ; Lowe v. Richardson, 3 Madd. R. 277. ' Metoalf V. Hervey, 1 Ves. 248 ; Cooper, Eq. PI. 46, 47 ; 2 Story on Eq. Jurisp. § 821 ; 1 Mont. Eq. PI. 234. = 2 Story on Equity Jurisp. § 821 ; East India Company v. Edwards, 18 Ves. 377; Mitf. Eq. PI. by Jeremy, 141, 142. * Mitf. Eq. PI. by Jeremy, 142, 143. " Nicholson V. Knowles, 5 Madd. R. 47; Lowe v. Richardson, 3 Madd. E. 277 ; 2 Story on Eq. Jurisp. § 814-820 ; Mitf. Eq. PI. by Jeremy, 142, 143, and note. § 294 - 297.] BILLS OF INTERPLEADER. 287 ferent between them.^ [But an interest by the complainant that one party to the bill of interpleader should succeed rather tlian the other, in order thereby to increase the complainant's prospects of success in respect of certain other property not involved in the suit in question, is no objection to a bill of interpleader. Such an interest is merely in the question but not in the' particular suit.^] The prayer of the bill should also be correctly framed, by praying, that the defendants may set forth their several titles, and may in- terplead, and settle, and adjust their demands between themselves. The bill also generally prays an injunction to restrain the proceed- ing of the claimants, or either of them, at law ; and, whenever this is done, the bill should offer to bring the money into court ; and it must be brought into court before the court will ordinarily act upon this part of the prayer.^ In bills of interpleader, also, an affidavit is always required of the plaintiff, that he does not collude with either of the defendants ; and if the bill is filed by an officer of a company on behalf of the company, he must also annex a like affidavit, and add, that, to the best of his knowledge and belief, the company do not collude with the defendants.* ' Langston v. Boylston, 2 Ves. jr. 101, 103 ; Mitchell v. Hayne, 2 Sim. & Stu. 63 ; Slingsby v. Boulton, 1 Ves. & B. 334 ; Burnett v. Anderson, 1 Meriv. R. 405 ; Cooper V. De Tastet, 1 Taml. 177 ; 1 Mont. Eq. PI. 234, 235. » Oppenhein v. Leo Wolf, 3 Sandf. Ch. R. 571. ' Wyatt, Pract. Reg. 78, 79 ; Mohawk & Hudson Railroad Company v. Clute, 4 Paige, R. 384, 391 ; Richards v. Salter, 6 John. Ch, R. 445. The common form of the prayer is given in Van Heythuysen's Equity Draftsman, p. 299, in a case of rent. It prays, " That they (the defendants) may severally set forth and discover what right or title they and each of them claim or have in and to the sEfld moiety of the said premises ; and how they and each of them derive and make out the same ; and that they may set forth, to which of them the said rent and arrears of rent doth, or do of right belong, or is or are! payable, and may interplead and settle, and adjust their demands between themselves, your orator being ready and willing, and hereby oiTering to pay the said rent and arrears of rent to such of the said confederates, to whom the same shall appear to belong, being indemnified. And that your orator may be at liberty to bring the same into this honorable court, which your orator doth hereby offer to do, for the benefit of such of the several parties who shall appear to be entitled thereto. And that the said several defendants, and each and every of them, may be restrained by the injunction of this honorable court, from all proceedings at law against your orator for the said rent and arrears of rent. And for fur- ther relief," &c. See, also. Barton's Suit in Eq. 46, 47 ; Mitf. Eq. PI. by Jeremy, 142, 143. * Bignold V. Audland, 11 Sim. R. 24, 25 ; Ante, § 291 ; Mitf. Eq. PI. by Jere- my, 49, 143. 288 EQUITY PLEADINGS. [CH» VI. § 297 a. In an interpleader bill, if the defendants do not deny the statements of the bill, the ordinary decree is, that the defend- ants do interplead ; and the plaintiff then withdraws from the suit.^ But the defendants, or either of them, are at liberty to contest and deny the allegations in the bill, or to set up distinct and independ- ent facts in bar of the suit ; and, in such a case, the plaintiff must reply to the answer, and close the proofs in the usual manner, be- fore he can bring the cause to a hearing between himself and the defendants ; and at the hearing only can he insist (if such is his right) upon a decree, that the defendants do interplead.^ § 297 b. We may conclude this head of interpleader by remark- ing, that although a bill of interpleader, strictly so called, lies only where the party applying claims no interest in the subject- matter ; yet there are many cases, where a bill, in the nature of a bill of interpleader, will lie by a party in interest to ascertain and establish his own rights, where there are other conflicting rights between third persons. As, for instance, if a plaintiff is entitled to equitable relief against the owner of property, and the legal title thereto is in dispute between two or more persons, so that he cannot ascertain to which it actually belongs, he may file a bill against the several claimants, in the nature of a bill of interpleader for relief. So, it seems, a purchaser may»file a bill in the nature of a bill of interpleader, against the vendor, or his assignee, and any creditor who seeks to avoid the title of the assignee and pray the direction of the court, as to whom the purchase-money shall be paid. So, if a mortgagor wishes to redeem the mortgaged es- tate, and there are conflicting claims between third persons, as to their title to the mortgage-money, he may bring them before the court, to ascertain their rights, and to have a decree for a redemp- tion, so that he may make a secure payment to the pai;ty entitled to the money. In these cases, the plaintiff seeks relief for himself ; whereas, in an interpleading bill, strictly so called, the plaintiff only asks, that he may be at liberty to pay the money, or deliver the property to the party, to whom it of right belongs, and may ' City Bank v. Bangs, 2 Paige, R. 570, 573 ; AngeU v. Hadden, 16 Ves. 203 ; 4 Bro. Ch. R. 809, note ; Post, § 362. ' City Bank v. Bangs, 2 Paige, R. 570, 572; Statham v. Hall, 1 Turn. & Russ. 30-; 2 Story on Eq. Jurisp. § 822, 824 ; Jones v. Gilman, Cooper, R. 49 ; Bey- mer v. Buchanan, 1 Cox, R. 425 ; Duke of Bolton v. Williams, 4 Bro. Ch. B. 297. §297 a -298.] bills of interpleadee. 289 thereafter be protected against the claims of both. In the latter case, the only decree, to which the plaintiff is entitled, is a decree that the bill is properly filed ; or, in other words, that he shall be at liberty to pay the money, or bring the property into court, and have his costs ; and that the defendants interplead, and settle the conflicting claims between themselves. So, a bill, in the nature of an interpleading bill, will lie by a bank, which has offered a re- ward for the recovery of money stolen, and a proportionate reward for a part recovered, where there are several claimants of the re- ward, or a proportion thereof, one or more of whom have sued the bank. And in such a bill all the claimants may be made parties, in order to have their respective claims adjusted.^ [* § 297 c. The grounds upon which a bill of interpleader may be sustained, according to the late English practice are very vari- ous. In the recent case of Nelson v. Barter,^ first heard before Vice-Chancellor Wood, and subsequently, upon appeal, before the Lord Chancellor, it was considered a good ground of maintaining such a bill, that a judgment in the Queen's Bench had been at- tached by a proceeding in the Lord Mayor's court against the plaintiff in the Queen's Bench, and that although the foreign attachment might not prove of any validity, it was not proper to subject the defendant, in the judgment thus attached, to the ex- pense of defending proceedings in which he had no interest.^] § 298. Secondly, in regard to bills of certiorari. The object of this bill (which is rarely, if ever, used in America,) is to remove a suit in equity, pending in some inferior court, into the Court of Chancery, or into some other proper superior court of equity, (if any such there be,) on account of some alleged incompetency of the inferior court, or some injustice in its proceedings. This spe- cies of bill, having this sole object, merely prays the writ of certi- orari. The bill first states the proceedings in the inferior court, it then states the cause of tl^e incompetency of the inferior court, by suggesting, that the cause is out of its jurisdiction ; or that the witnesses live out of the jurisdiction ; or that the defendants live ^ 2 Story on Eq. Jurisp. (2d edit.) § 824, and cases there stated; Bedell v. HofFman, 2 Paige, K. 199. [* ' 10 Jur. N. S. 832. But the plaintiff in the interpleader suit will not be allowed to be heard by counsel before the court upon any disputed question upon the merits, as between the interpleading parties. " Ibid.] £Q. PL. 25 290 EQUITY PLEADINGS. [CH. VI. out of the jurisdiction, and are not able, by age or infirmity, or the distance of the place, to follow the suit there ; or that, for some other cause, equal justice is not likely to be done them ; and it then prays a writ of certiorari, to certify and remove the record and the cause to the superior court.^ It does not pray, that the defendant may answer, or even appear to the bill ; and conse- quently, it prays no writ of subpoena, although a subpoena must be sued out and served.^ When the cause is removed from the inferior court, the bill exhibited in that court is considered' as an original bill in the court of chancery, or other superior court, and is proceeded upon as such.^ The proceedings, however, on it are peculiar ; but they belong rather to the practice, than to the plead- ings, of a court of equity.* ' Wyatt, Pr. Eeg. 82-84 ; 1 Harris, Ch. Pr. by Newl. 49. The form of the writ of certiorari will be found in Hinde's Ch. P. 581. The proceedings to justify the superior court in retaining the bill, and the suggestions on which the removal of the proceedings from the inferior court are required, are to be proved by satis- factory depositions in the superior court. Wyatt, Pr. Keg. 83, 84 ; 1 Hams, Ch. Pr. by Newl. 49-51. ^ Mitf. Eq. PI. by Jeremy, 50 ; Wyatt, Pr. Eeg. 82 ; Cooper, Eq. PI. 50, 51 ; Hinde, Ch. Pr. 581 ; Id. 28 ; 1 Mont. Eq. PI. 244. In the form of the bill given in Van Heyth. Eq. Drafts, 312,' there is a prayer for a subpoena, and also for an answer. But the proposition in the text is laid down in all the authorities cited to support it. See also 1 Mont. Eq. PI. 244 and note (2). See Barton's Suit in Equity, 51, 52, where the common form of the prayer is given. ^ Mitf Eq. PI. by Jeremy, 51. • Mitf. Eq. PI. by Jeremy, 50, 51 ; Cooper, Eq. PI. 50, 51 ; Hinde, Ch. Pr. 28-32. § 298 - 300.] BILLS TO PERPETUATE TESTIMONY. 291 CHAPTER YII. BILLS NOT PRAYING RELIEF. — BILLS TO PERPETUATE TESTIMONY, AND TO TAKE TESTIMONY DE BENE ESSE, AND BILLS OF DISCOVERY. [* § 299. Enumeration of bills not praying relief. -■ § 300. Definition of bills to perpetuate testimony. § 301. Plaintiff must show that he has an interest, &c. § 302. It must also appear that defendant has or claims an interest. § 303. The bill must also state good reason for the course demanded. § 304. When affidavit should accompany the bill. § 305. How the right to be affected should be described. ^ 306. The prayer of the bill should conform to the case. § 306 a. The nature of the defence to such bills discussed. § 307. Distinction between this species of bill and one de bene esse. § 308. Grounds for taking testimony de bene esse. § 309. Form of affidavit required. § 310. Same rules in general apply to both modes of proceeding. ^311. The nature and extent of bills of discovery. § 312. Should not pray relief. § 313. Necessary averments where relief is sought. § 314. What constitutes a prayer for relief Strictly. § 315, 316. Subject further discussed. § 317, 321 u. Party may claim discovery in aid of his own title, not of the defendant's title or claim. § 318. The bill must clearly state ground of claim. 4 319. Must appear to be a valid claim. § 320. Plaintiff's title must be stated with certainty. § 321. So also the suit in aid of which the discovery is sought. § 322. How the suit should be stated. § 323. Interest of defendant must also be stated. § 324. And the privity between the parties also. § 324 a. It must appear how the testimony is important. § 325. Matters on which discovery is sought must be clearly stated.] § 299. Bills, not praying for relief, are of two kinds.^ (1.) Bills to perpetuate testimony, or to examine witnesses de bene esse. (2.) Bills of discovery, teclinically so called. § 300. The sole object of a bill to perpetuate testimony is, to assist other courts, and to preserve evidence to prevent future litigation.^ In order to maintain such a bill, it is necessary to state on its face all the material facts, which are necessary to • Ante, § 19. ' Cooper, Eq. PI. 52 ; Mitf. Eq. PI. by Jeremy, 148, 149 ; Barton's Suit in Eq. 53, 54. 292 EQUITY PLEADINGS. [CH. Vli. maintain the jurisdiction. It must, in the first place, state the subject-matter, touching which the plaintiff is desirous of giving evidence.^ Thus, for example, if the object of the bill is to per- .petuate the testimony of the witnesses to a deed respecting real, estate, the deed should be properly described, and the names of the witnesses, who are to prove the same, be set foi-th.^ And if the object of the bill is to perpetuate the evidence of witnesses to facts in pais, it is not sufficient to state generally, that they can give evidence as to certain facts ; but the bill must state specially, what these facts are.^ § 301. The bill should also show, that the plaintiff has some interest in the subject-matter, which may be endangered, if the testimony in support of it is lost ; for, unless he has some in- terest, he is not entitled to maintain the bill.* A mere expec- tancy, however strong, is not sufficient ; but the party must have a positive interest. For it has been well said — " Put the case as high as possible ; that the party, seeking to perpetuate the tes,timony, is the next of kin of a lunatic ; that the lunatic is intestate ; that he is in the most helpless state, a moral and physical impossibility, (though* the law would not so regard it,) that he should ever recover ; even if he were in articulo mortis, and the bill was filed at that instant ; still, the plaintiff could not qualify himself to maintain it, as having any interest in the subject of the suit." ^ But if there be any vested interest, how- ever slight or trifling in value, whether it be absolute, or con- tingent, whether it be present, or remote and future in enjoyment, is wholly immaterial.^ Nay ; it has been said, that though the heir apparent, or next of kin, could not, in the case put, maintain a bill ; yet, if they had entered into any contract with respect to their expectancies, and possibilities, they might, upon the foot- ing of that contract, maintain a bill to perpetuate the evidence.'' 1 Mitf. Eq. PI. by Jeremy, 51. ' See Mason v. Goodbourne, Rep. Temp. Finch, 391. ' Knight V. Knight, 4 Madd. R. 8, 10. * Cooper, Eq. PI. 52; Mason v. Goodbourne, Rep. Temp. Finch, 391 ; 2 Story, Comm. on Eq. Jurisp. § 1511. " Dursley v. Fitzhardinge, 6 Ves. 260 ; Sackville v. Aylworth, 1 Vern. 105 ; 8. C. 1 Eq. Abridg. 234 ; Smith v. Attorney-General, cited 6 Ves. 260 ; 1 Fow- ler, Exch. Pr. 384 ; and in 15 Ves. 136 ; Mitf. Eq. PI. by Jeremy, 51 ; Cooper, Eq. PI. 52-54; Allan v. Allan, 15 Ves. 135, 136. ' Allan V. Allan, 15 Ves. 135, 136. ' Dursley v. Fitzhardinge, 6 Ves. 260, 261 ; Cooper, Eq. PI. 53, 54. § 300 - 303.] BILLS TO PERPETUATE TESTIMONY. 293 However, it is not every interest vrhich the coitrt will protect by- perpetuating evidence ; for if it be such an interest, as may be immediately barred by the party, against whom the bill is brought, the court will withhold its assistance ; for it would be a fruitless exercise of power .^ § 302. On the other hand, it seems equally indispensable to a bill of this kind, that it should state, that the defendant has, or pretends to have, a title, or that he claims an interest to contest the title of the plaintiff in the subject-matter of the proposed testi- mony.^ For, unless the defendant has, or claims some such inter- est, it is utterly fruitless to perpetuate the testimony ; since it can have no operation upon those who are the real parties in interest. "We have seen, however, that it will be sufficient to bind all the parties in interest, to bring before the court those, who are judi- cially held to represent them all ; as, for example, the first tenant in tail, who represents all subsequent interests.^ ' § 303. The bill must also show some ground of necessity for perpetuating the evidence ; as that the facts, to which the testi- mony of the witnesses, proposed to be examined, relate, cannot be immediately investigated in a court of law ; or, if they can be so investigated, that the sole right of action belongs exclusively to the other party ; or, that the other party has interposed some im- pediment (such as an injunction) to an immediate trial of the right in the suit at law ; so that, bfefore the investigation can take place, the evidence of a material witness is likely to be lost, by his death or departure from the country.* In the former case, the • Dursley v. Fitzhardinge, 6 Ves. 261 - 263 ; Cooper, Eq. PI. 53. " Mitf. Eq. PI. by Jeremy, 53 ; Dursley v. Fitzhardinge, 6 Ves. 260, 261 ; Cooper, Eq. PI. 56 ; 1 Mont. Eq. PI. 271. ' Ante, § 144, 145 ; Cooper, Eq. PI. 56. * Mitf. Eq. PI. by Jeremy, 52, 148 and note {y) ; North v. Gray, 1 Dick. 14 ; Cox V. Colley, 1 Dick. K. 55; Dorset v. Girdle, Prec. Ch. 531. Lord Kedesdale's language is general : " Or, that before the facts can be investigated in a court of law, the evidence of a material witness is likely to be lost by his death or departure from the realm," without the qualifications stated in the text. Upon this passage, Mr. Jeremy has given the following note : " According to the latter part of this proposition, the right of action may be either in the plaintiff or defendant in equity. With reference to the defendant, the time of bringing the action depending upon his will, the situation of the plaintiff would be similar to that intimated in the for- mer part of the proposition in the text, 1 Sim. & Stu. 89 ; and, with respect to the plaintiff, it must be understood to relate to the case of his not being able at pres- ent to sustain an action. Cox v. Colley, 1 Dick. 55 ; 1 Sim. & Stu. 114 ; for, if 25* 294 EQUITY PLEADINGS. [CH. VII. bill must allege, that the plaintiff is in possession of the property, or the right, without any disturbance by the other party, upon which an action at law can be founded.^ In the latter case, the he should have such present right, his object could only be what is technically termed an examination de bene esse, upon the ground of his having only one wit- ness to a matter, on which his claim depends, or, if he has more, on the ground of their being aged, or too ill or infirm to attend in a court of law ; and that he is therefore likely to lose their testimony before the time of trial, 1 Sim. & Stu. 90 ; in which case, it seems that it ought to be stated in the bill that the action was brought before the same was filed. Angell v. Angell, 1 Sim. & Stu. 83. On the general subject, see the cases cited, 1 Sim. & Stu. 93, note, and Teale v. Teale, 1 Sim. & Stu. 385." In Cox v. Colley, 1 Dick. R. 55, the plaintiff had brought an ejectment at law. But the proceedings were stayed by an injunction, which was procured by the defendant at law ; and the plaintiff brought his bill in equity, to perpetuate the testimony ; and, on demurrer, the bill was sustained. Sir John Leach, in Angell v. Angell, 1 Sim. & Stu. 83, stated very fully the grounds upon which this sort of bill is maintainable, and the distinction between it and a com- mission to take testimony de bene esse. His language was : " If it be possible that the matter in question can, by the party who files the bill, be made the subject of immediate judicial investigation, no such suit is entertained. But if the party who files the bill can by no means bring the matter in question into present judi- cial investigation, (which may happen when this title is in remainder, or when he is himself in possession,) there, courts of equity will entertain such a suit; for otherwise the only testimony which could support the plaintiff's title might be lost by the deaths of his witnesses. Where he is himself in possession, the adverse party might purposely delay his claim with a view to that event. It is, therefore, ground of demurrer to a bill to perpetuate testimony, generally, that it is not alleged by the plaintiff that the matter in question cannot be made by him the subject of present judicial investigation. But courts of equity do not merely entertain a jurisdiction to take or preserve testimony generally, to be used on a future occasion, where no present action can be brought ; but also to take and preserve testimony in special cases, in aid of a trial at law, where the subject admits of present investigation. At law, no commission to examine witnesses, who are abroad, for the purpose of being used at the trial, can go, without the consent of the adverse party. Courts of equity will, upon a bill filed, grant such commis- sion without the consent of the adverse party. So, courts of equity will entertain a bill to preserve the testimony of aged and infirm witnesses, to be used at the trial at law, if they are likely to die before the time of trial can arrive ; and will even entertain such a bill to preserve the testimony of a witness who is neither aged nor infirm, if he happen to be the single witness to support the case.'' In Moodalay v. Morton, 2 Dick. R. 652 ; S. C. 1 Bro. Ch. R. 469, a bill to perpetu- ate testimony was allowed, where there was a present right of action. But that case was founded in special circumstances, perfectly consistent with the general rule ; for the object of the testimony was to ascertain against whom the action should be brought, as the plaintiff had no present means of knowing who that party was. ' Cooper, Eq. PI. 53 ; Mitf Eq. PI. by Jeremv, 51, 52, 148, 149 ; Wyatt, Pr. Reg. 74. § 303 - 305.] BILLS TO PERPETUATE TESTIMONY. 295 bill must allege the specific facts, on which the plaintiff puts his case; and also, that the witnesses are old, or infirm, or in ill health, and not likely to live ; ^ or, that he has no present right to maintain an action ; as if he have a title in remainder or reversion only after a present existing estate for life.^ Without such alle- gations, the bill will be clearly demurrable ; since, if the subject- matter is capable of being immediately investigated at law, there is no ground to perpetuate the testimony; but it will be the par- ty's own laches not so to try his right. If an action be actually pending, the bill should be- of a different sort, a bill de bene esse, to take the testimony of the witnessess.^ § 304. Where a bill is framed on the ground, that the testi- mony of a witness may be lost by his death, or departure from the realm, before the case can be investigated in a court of law, it seems proper also, in order to avoid any objection, to annex to it an affidavit of the circumstances, by which the evidence, in- tended to be perpetuated, is in danger of being lost.* This prac- tice is adopted in other cases of bills, which have a tendency to change the jurisdiction of the subject-matter from a court of law to a court of equity. § 305. The right, of which the bill is brought to perpetuate the testimony, should be described with reasonable certainty in the bill, so as to point the proper interrogatories on both sides to the true merits of the controversy. Thus, for example, where a bill fs brought to perpetuate the testimony of witnesses, touch- ing a right of way, the bill should state the termini of the way, the per "and trans, as exactly as in a declaration ; for a defect of this sort will make the bill demurrable.^ Thus, where a bill was brought to perpetuate the testimony of witnesses respecting a right of common and of way ; and it alleged that the tenants, owners, and occupiers of the said messuage and lands, &c., in right there- of, or otherwise, have from timfe, &c., and of right ought to have ^ Mitf. Eq. PI. by Jeremy, 52 ; Mason v. Goodbourne, Kep. Temp. Finch, 391. " Dursley v. Fitzhafdinge, 6 Ves. 260, 261. ' AngelU. Angell, 1 Sim. & Stu. 83; Dew v. Clarke, 1 Sim. & Stu. ,108; 2 Story's Comm. on Eq. Jurisp. § 1507, 1508; Parry?;. Rogers, 1 Vern. 441, Brandlyn v. Ord, 1 Atk. 571; Cooper, Eq. PI. 55; Dursley v. Fltzhardinge ; 6 Ves. 260. * Mitf. Eq. PI. by Jeremy, 52, 53; Phillips v. Carew, 1 P. Will. 117; Angell V. Angell, 1 Sim. & Stu. 83, 93 ; Shirley v. Earl Ferrers, 3 P. Will. 77. ^ Cell V. Hayward, 1 Vern. 312; Cooper, Eq. PL 56. 29g EQUITY PLEADINGS. [CH. VH. common of pasture ia and upon a certain waste or common called Brownbee, for their horses, &c., and also a way or road for themselves over, &c. ; upon demurrer it was held (as we have already seen) that the charges were too general, and not sufficiently descriptive of any particular right.i So, where the bill seeks to perpetuate the testimony of witnesses to a will it is proper in the bill to set forth the whole will in hcec verba. § 306. The prayer of the bill also requires attention. It should pray leave to examine witnesses touching the matter stated, to the end that their testimony may be preserved and perpetuated.^ It should also pray the proper process of subpcem. But it should not pray, that the defendant may abide such order and decree, as the court shall think proper to make ; for that will turn it into a bill for relief, which is inconsistent with the nature of a bill to perpetuate testimony.* If the bill should pray relief, it will of course be demurrable, and may be dismissed for this cause.^ > Cresset v. Mitton, 1 Ves. jr. 449 ; S. C. 3 Bro. Ch. K. 481 ; Cooper, Eq. PI. 55 ; Ante, § 244. ' Wyatt, Pr. Reg. 74. ' Mitf. Eq. PI. by Jeremy, 51 ; Cooper, Eq. PI. 52. ♦ Post, § 312, 314 ; Rose v. Gannel, 3 Atk. 439 ; Vaughan v. Fitzgerald, 1 Sch. & Left. 316 ; Cooper, Eq. PI. 52; Mltf. Eq. PI. by Jeremy, 51, note («). <■ Ibid.; Dalton v. Thomson, 1 Dick. R. 98. Where the bill is to perpetuate testimony, and also for relief, the court will frequently allow the plaintiff to amend his bill by striking out the relief, even after the testimony has been taken under it, and thus give effect to it. Vaughan c. Fitzgerald, 1 Sch. & Left. 316. A bill to perpetuate testimony is never brought to a hearing. Ibid. If the cause should improperly be brought to a hearing, it will be dismissed. But the depositions taken may still be used as evidence, even though the bill is dismissed. Hall u. Hoddesdon, 2 P. "Will. 162, 163; Anon. 2 Ves. 497; Anon. Ambl. R. 237; Ackland w. Gaisford, 2 Madd. 37, note. One form of prayer given in Van Heyth, Eq. Drafts, is, " That the plaintiff may be at liberty to ex- amine his witnesses to the several matters and things hereinbefore mentioned, and particularly respecting the boundary (the point in controvery) between the said tenement called, &c. ; and the said tenement called, &c. ; and that the plaintiff may be at liberty on all future occasions, to read and make use of the same, as he shall be advised." The form of the prayer on a bill to perpetuate the 'testimony of the subscribing witnesses to a will, in the same work, is, " That your orator may be at liberty to examine his witnesses, with respect to the exe- cution and attestation of the said will, and sanity of mind of the said A, B., at the making of the same, so that their testimony may be perpetuated and pre- served." Van Heyth. Eq. Drafts, 318. See also Barton's Suit in Eq. 54. As to the publication of the testimony, and the proceedings and order to be had, when the testimony is to be used in a trial at law, not under the order of the court, see Attorney-General v. Ray, 2 Hare, R. 518. § 305 - 307.] BILLS TO TAKE TESTIMONY DE BENE ESSE. 297 Care should be taken, not to mix up in the bill other matters, which may require very different decretal orders, as to the pub- lication of the testimony ; ^ otherwise it will be demurrable. [* 306 a. In bills to perpetuate testimony the defendant may allege any facts going to show that there is no occasion to perpetu- ate the testimony ; and this may be done by way of plea. This it is obvious may rest either upon the ground, that there exists no such dispute or controversy, as that alleged in the bill, or that the plaintiff' has no such interest in it, as will justify his application to perpetuate the testimony. But if the defendant make answer to the bill as first presented, he cannot after the same is amended and new points of inquiry presented, plead to the amended bill, that since the filing of the original bill the plaintiff had instituted an- other suit in equity, in which he had made the sevferal matters raised by the amended bill the subject of judicial investigation ; for although such plea might have been good to the original bill, the defendant having consented to answer, cannot afterward plead to the amended bill. But the question being further heard on ex- ceptions to the plea, after it had been ordered to stand for an an- swer, it was held that the plaintiff's amendment having changed the nature of the original bill from one to perpetuate testimony, so as to combine with it a claim for discovery from the defendant in the bill, he was not bound to make further answer.^] § 307. Bills to take testimony de bene esse bear a close anal- > Dew V. Clarke, 1 Sim. & Stu. 108. [* " EUice V. Koupell, 9 Jur. N. S. 530. Sir J. Romilly, M. R., here dis- cusses the nature of bills to perpetuate testimony, and the precise distinction between them and bills of discovery; and declares, that the proper mode of examining the defendant, where it is desired to perpetuate his testimony, in re- gard to the matter in which his interest is adverse to that of the plaintiff, is the same as that of examining all other witnesses, and it is only by so examining him, that his deposition can be made evidence at any future period, in another suit. The defendant being denied the stay of this suit, on the grounds already stated, applied to the court by motion to stay all proceedings in this suit, upon the ground that the plaintiff could obtain in his other suit all the relief to which he was entitled, and that the defendants ought not to be harassed by proceed-- ings in two suits having the same object, and for his costs ; and the motion was overruled. Id. 533. Sir J. Komilly, here states the rule to be, in regard to bills for perpetuating testimony that the defendants, by consenting to answer the plaintiff's bill, admit his right to examine witnesses in the case, and that implies all that is demanded in the bill. For if there is really any hond fide controversy between the parties, the ri^ht to perpetuate the testimony follows as matter of course.] 298 EQUITY PLEADINGS. [CH. VH. ogy to bills to perpetuate testimony, and are often confounded with the latter. But they stand upon distinct considerations.^ Bills to perpetuate testimony, can be maintained only, when no present suit can be brought at law by the party, seeking the aid of the court to try his right.^ Bills to take testimony de bene esse, on the other hand, are sustainable only in aid of a suit already depending.^ The latter may be brought by a person, who is in possession, or who is out of possession ; and whether he is plaintiff, or he is defendant, in the action at law. § 308. The object of the bill is to take the testimony of wit- nesses for the trial at law, where the testimony may otherwise be lost ; as, for example, where the witnesses are aged or infirm, or about to depart from the country.* So, if a witness -is the only witness to the thing, to which he is to be examined, a bill will lie, on account of the general uncertainty of human life, to take his testimony de bene esse, notwithstanding, he is not either aged or infirm.^ In general, a witness is not treated as being aged in tlie sense of the rule, unless he is seventy years of age.^ But if he is infirm, or in ill health, to an extent likely to endanger or destroy his life, or to prevent his attendance at the trial, his testimony may be taken at any age.'^ If a witness is going out of the jurisdiction of the court, although only into a state or country under the same general sovereignty, his testimony may also be taken ; as, for example, if he is going from England to Scotland ; or in America, if he is going from one State to another.' § 309. In framing the bill, therefore, care should be taken to allege all the material facts, upon which the right to maintain tfie bill depends, wliether it is dependent upon the age, or the infirm- ity, of the witness, or upon his being about to depart from the ' ' Ante, § 303. ' 2 Story on Equity Jurisp. § 1513 ; Cooper, Eq. PI. 57; Ante, § 303. ' Angell V. Angell, 1 Sim. & Stu. 83 ; Ante, § 303, note. The case of Phil- Kps V. Carew, 1 P. Will. 117, seems the other way. But its authority has been questioned, and seems now overruled in Angell v. Angell, 1 Sim. & Stu. 83, 93 ; 2 Story on Eq. Jurisp. § 1813, note (3). * Cooper, Eq. PI. 57. See Dicker v. Power, 1 Dick. E. 112; Shelly v. , 13 Ves. 56 ; Kowe v. , 13 Ves. 260. 5 Shirley v. Earl Ferrers, 1 P. Will. 97 ; Pearson v. Ward, 2 Dick. K. 648. ' Cooper, Eq. PI. 57 ; Fitzhugh w. Lee, Ambl. K. 65 ; Shelley v. , 13 Ves. 56 ; Eowe v. ■ , 13 Ves. 261. ' Ibid. ; Phillips v. Carew, 1 P. Will. 117. ^ Botts V. Verelst, 2 Dick. 454. § 307 - 311.] BILLS TO TAKE TESTIMONY DE BENE ESSE. 299 country, or upon his being a single witness. And there should also be an afiSdavit annexed to the bill, of the circumstances, by which the evidence, intended to be perpetuated, is in danger of being lost, as by death, departure from the country, or otherwise.^ The reason assigned is the same, which has been already men- tioned ; that it has a tendency to change the jurisdiction of the subject-matter from a court of law to a court of equity.^ This rea- son is perhaps not quite satisfactory ; because the aim of the bill is in no sort to change the forum, in which the merits of the case are to be heard and tried ; but merely to prevent the loss of the testimony at the trial. A better ground would seem to be, that the bill has a tendency to create delays, and may be used as an instrument unduly to retard the trial ; and therefore an affidavit, that the bill is well founded, is required.^ The affidavit should be positive, as to the material facts. Thus for example, if it relies upon the fact, that the witness is the only witness to a material fact, it will not be sufficient, that the affidavit states, that he is so in the belief of the party ; but it must be positively stated, that he is the only witness, who knows the fact.* § 310. In other respects, the general rules, already stated in regard to bills to perpetuate testimony, are for the most part applicable to bills to take testimony de bene esse ; and, therefore, it is unnecessary to repeat them in this place. § 311. Thirdly, in regard to the bills of discovery. It has been truly said, that every bill for relief is in reality a bill of discovery, since it asks from the defendant an answer upon oath, as to all the matters charged in the bill, and seeks from him a discovery of all such matters.^ But a bill of discovery, emphatically so called, of which we are now treating, is a bill for the discovery of facts, resting in the knowledge of the defendant, or of deeds, or writings, or other things in his custody or power, and seeking no relief in consequence of the discovery, although it may pray for the stay of proceedings at law, till the discovery is made.^ The bill is com- ' Cooper, Eq. PI. 57 ; Mitf. Eq. PI. by Jeremy, 52 ; Angell v. Angell, 1 Sim. & Stu. 83, 93 ; Phillips v. Carew, 1 P. Will. 117. » Cooper, Eq. PI. 57 ; Mitf. Eq. PI. by Jeremy, 52. ' See Angell v. Angell, 1 Sim. & Stu. 83, 92. * Kowe V. , 13 Ves. 261. ' Mitf. Eq. PI. by Jeremy, 63 ; 2 Story, on Eq. Jurisp. § 689, 1483 ; Cooper, Eq. PI. 58. » Mitf. Eq. PL by Jeremy, 53 ; 2 Story on Eq. Jurisp. § 1483. 300 EQUITY PLEADINGS. [CH. VII. monly used in aid of the jurisdiction of some court of law, to en- able tlie party, who prosecutes, or defends an action at law, to ob- tain a discovery of the facts, which are material to the prosecution or defence thereof.^ If it can be used in any other cases, they are very few, and under very special circumstances.^ It is a vexed question, upon which the authorities are contradictory, whether a bill for discovery lies in aid of a suit or defence to a suit pending in a foreign court.^ For the more full exposition of the circum- stances, under which it lies, the learned reader is referred to other works, wliich professedly treat upon this subject.* § 312. We have already suggested, that a bill of discovery, properly so called, never prays any relief. If a bill, therefore, which is maintainable in equity solely as a bill for discovery, should contain a prayer for relief also, it will, in England, (although not in America,) be open to a demurrer to the whole bill ; and the party will not be allowed to maintain his bill for the discovery only ; for he is bound to shape his bill according to what he has a right to pray.^ [But it has recently been held in Amer- ' Mitf. Eq. PI. by Jeremy, 53, 183, 225 ; Cooper, Eq. PI. 60 ; Hare on Discov. 119, 120 ; March v. Davison, 9 Paige, R. 580 ; Lane v. Stebbins, 9 Paige, 622'; Paterson v. Barry, 9 Paige, R. 637; Post, § 319. " See Hare on Discovery, 79, 110, 111 ; Cardale v. Watkins, 5 Madd. R. 18. " In Bent v. Younge, 9 Sim. B. 180, the vice-chancellor held, that a bill of dis- covery would not lie in aid of a defence to a suit in a foreign court; and he stated that the case of Crowe v. Del Ris, cited in Mitf. Eq. PI. by Jeremy, 186, note (j), did not support the doctrine. But in Mitchell v. Smith, 1 Paige, R. 287, Mr. Chancellor Walworth held, that a bill of discovery would lie in aid of a prosecu- tion or a defence in a foreign court. * See 2 Story on Eq. Jurisp. ch. 41, § 1480 - 1504 ; Hare on Discovery, * Price V. James, 2 Bro. Ch. R. 319 ; CoUis v. Swayne, 4 Bro; Ch. R. 480; Loker v. Rolle, 3 Ves. R. 4, 7 ; Hodgkin v. Longden, 8 Ves. 3 ; Gordon »• Simpkinson, 11 Ves. 509 ; Muckleston v. Brown, 6 Ves. 3 ; Todd v. Gee, 17 Ves. 273 ; Barker v. Dacie, 6 Ves. 686 ; Mitf. Eq. PI. by Jeremy, 183, 184 ; Pitts V. Short, 17 Ves. 213; Jones v. Jones, 3 Meriv. 161, 170; Williams u. Steward, 3 Meriv. R. 502 ; Cooper, Eq. PI. 58, 188 ; Deare v. Attorney-General, 1 Y. & Coll. 205, 206 ; Albretcht v. Sussman, 2 V. & Beam. 328 ; Morris v. Morgan, 10 Sim. R. 341. The rule formerly adopted in England was different. It was, that if the bill was for discovery and relief, and it was good for discovery only, a general demurrer to the whole bill was bad ; for though the party was not entitled to relief, he was not to be prejudiced for having asked too much. Brandon v. Sands, 2 Ves. jr. 514 ; Sutton v. Scarborough, 9 Ves. 75 ; Attorney- General V. Brown, 1 Swanst. 294 ; Mitf. Eq. PI. by Jeremy, 183, 184, In New York, the old English rule is adhered to ; and, indeed, it has much to commend § 311, 312.] BILLS OF DISCOVERY. 301 ica also, that if a bill for discovery also seeks relief which the court has no power to grant, the defendant may demur to the whole bill, if it do not aver that a suit at law is pending, or is about to be brought, in which a discovery may be material.^] But the defend- ant may, nevertheless, if he chooses, demur to the relief only, and answer as to the discovery sought.^ Indeed, if he files a plea only it. See Laight v. Morgan, 1 John. Cas. 429 ; S. C. 2 Cain. Cas. in Err. 344; Le Key V. Veeder, 1 John. Cas. 423 ; Le Roy v. Servis, 1 Cain. Cas. in Err. 1 ; S. C. 2 Cain. Cas. in Err. 175 ; Kimberley v. Sells, 3 John. Ch. K. 467 ; Living- ston V. Livingston, 4 John. Ch. R. 296 ; Higginbotham v. Burnet, 5 John. Ch. R. 184. The proper course is held, in New York, to be, to demur to the relief, and to answer to the discovery. Higginbotham v. Burnet, 5 John. Ch. R. 184 ; Brownell v. Curtis, 10 Paige, R. 210. See Ante, § 306 ; Post, § 441, 546. The same doctrine was affirmed in the Supreme Court of the United States, in Livingston v. Story, 9 Peters, R. 632, 658, where Mr. Justice Thompson, in de- livering the opinion of the court, said : " And if any part of the bill is good, and entitles the claimant either to relief or discovery, a demurrer to the whole bill cannot be sustained. It is an established and universal rule of pleading in Chancery, that a defendant may meet a complainant's bill by several modes of defence. He may demur, answer, and plead to different parts of a bill. So that if a bill for discovery and relief contains proper matter for the one, and not for the other, the defendant should answer the proper, and demur to the improper matter. But if he demurs to the whole bill, the demurrer must be overruled." ' Mitchell V. Green, 10 Mete. 101; " Hodgkin v. Longden, 8 Ves. 3 ; Cooper, Eq. PI. 117 ; Whitchurch v. Gold- ing, 2 P. Will. 541 ; S. S. 1 Eq. Abridg. 14 ; Todd v. Gee, 17 Ves. 273 ; North V. Strafford, 3 P. Will. 148. Where a bill is for discovery and relief, a demurrer to the relief only, if sustained, generally defeats the discovery also ; for in such a case, the discovery is incidental to the relief. Price v. James, 2 Bro. Ch. R. 319 ; Sutton V. Scarborough, 9 Ves. 71, 75. But there cannot be a demurrer to the discovery only, and not to the relief; for that would be to demur, not to the thing required, (the relief,) but to the means by which it was to be obtained. Morgan V. Harris, 2 Bro. Gh. R. 123 ; Waring v. Mackreth, Forrest, R. 129 ; Cooper, Eq. PI. 117 ; Mitf Eq. PI. by Jeremy, 110, 183 - 185 ; Deare v. Attorney-General, 1 Y. & Coll. 197, 205, 206. Where the discovery sought is not a mere incident to the relief prayed, if the demurrer be to the latter only, it would seem doubtful whether the demurrer would not be bad. See Hare on Discov. § 3, p. 6 - 8 ; Mitf. Eq. PI. by Jeremy, 110, 183, and notes ; Angell v. Angell, 1 Sim. & Stu. R. 83, 93. In order to prevent the operation of the rule, that a demurrer to the relief, if good, is a bar to any discovery, it was formerly, a practice to file a bill at first for discovery only, and then, after the discovery obtained by amending the bill, to try the title to relief. But this practice is now discountenanced, except in cases where it is clear that the proper relief is to be had in equity ; and then an amendment will be allowed. See Mitf Eq. PI. by Jeremy, 1 78, note (n) ; Hare on Discov. 22 - 24 ; Butterworth v. Bailey, 15 Ves. 363; Whitworth v. Bsatisfactory . » Mitf Eq. PI. by Jeremy, 55, 61 ; Post, § 332 - 335. ' Mitf. Eq. PL by Jeremy, 56 ; Post, § 334, 337. " Ibid. § 326 - 330.] BILLS NOT ORIGINAL. 315 by some subsequent event there is no person before the court, by whom, or against whom, the suit in whole or in part can be prosecuted.^ § 329. It is not very accurately ascertained in the books of prac- tice, or in the reports, in what cases a suit becomes defective with- out being absolutely abated ; and in what cases it abates, as well as becomes defective.^ But, upon the whole, it may be collected, that if, by any means, any interest of a party to the suit in the matter in litigation becomes vested iu another, the proceedings are rendered defective, in proportion as that interest affects the suit ; so that, although the parties to the suit may remain as be- fore, yet the end of that suit cannot be obtained.^ Thus, for ex- ample, if the party become bankrupt pending the suit, then, according to the practice of chancery, the suit will be held to be defective ; but the bankruptcy does not cause an abatement.* And if such a change of interest is occasioned by, or is the conse- quence of, the death of a party, whose interest is not determined by his death, or by the marriage of a female plaintiff, the proceed- ings become likewise abated or discontinued, either in part, or in . the whole. For, as far as the interest of a party dying extends, there is no longer any person before the court, by whom or against whom the suit can be prosecuted ; and a married woman i^ inca- pable by herself of prosecuting a suit.^ § 330. There is the same want of accuracy in the books in as- certaining the manner, in which the benefit of a suit may be ob- tained, after it has become defective, or abated, by an event subse- quent to its institution, as there is in the distinction between the cases, where a suit becomes defective merely, and where it likewise abates.^ It seems, however, clear, that if any property or right in litigation, vested in a plaintiff, is transmitted to another, the person to whom it is transmitted, is entitled to supply the defects of the siiit, if it has become defective merely ; and to continue it, or at ' Mitf. Eq. PI. by Jeremy, 56 ; Post, § 334, 337. ' Mitf. Eg. PI. by Jeremy, 56, 57, and the eases there cited ; Gilb. For. Eom. 1 76 ; Post, § 349 and note. ' Ibid. ' Lee V. Lee, 1 Hare, R. 617, 621 ; Post, § 349 and note ; Robertson v. South- gate, 5 Hare; 223. * Mitf. Eq. PI. by Jeremy, 56, 57, and the cases there cited ; Gilb. For. Eom. 176 ; Post, § 349 and note. " Mitf. Eq. PI. by Jeremy, 60, 61, and the cases there cited; Post, § 332-342. 316 EQUITY PLEADINGS. [CH. VIH. least to have the benefit of it, if it is abated.^ It seems also clear, that if any property or right, before vested in a defendant, becomes transmitted to another person, the plaintiff is entitled to render the suit perfect, if it has become defective, or to continue it, if it is abated, against the person, to whom that property or right is transmitted.^ § 331. When a suit is abated, it cannot be proceeded in, until there is, (according to the technical phrase,) a revivor of it. When it is merely defective, it may be proceeded in without such a technical revivor, upon the mere supply of the defective facts, or defective parties.^ § 332. And, first, of a supplemental bill, which is merely an addition to the original bill, in order to supply some defect in its original frame or structure.* In many cases, an imperfection in the frame of the original bill, may be remedied by an amendment.^ Generally, a mistake in the bill in the statement of a fact should be corrected by an amendment, and not by a right statement of the fact in a supplemental bill.^ But the imperfections of a bill may remain undiscovered, while the proceedings are in such a state, that an amendment can be permitted according to the prac- tice of the court ; ^ or it may be of such a nature, having occurred after the suit is brought, as may not properly be the subject of an amendbient.^ By the practice of the court, no amendment is gen- erally allowable, after the parties are at issue upon the points of • Mitf. Eq. PI. by Jeremy, 60, 61, and the cases there cited; Post, § 332-342. = Ibid. = See Randall v. Munford, 18 Ves. 427; Lloyd v. Johnes, 9 Ves. 54, 55; Harrison v. Ridley, Com. R. 589 ; Anon. 1 Atk. 88 ; Russell v. Sharpe, 1 Ves. & B. 500. In all these cases, when the suit has become abated, as well as defec- tive, the bill is commonly termed a supplemental bill in the nature of a bill of revivor, as it has the effect of a bill of revivor in continuing the suit. Mitf Eq. PL by Jeremy, 68, 69. * Ante, § 20 ; Mitf Eq. PI. by Jeremy, 34, 55 ; Hinde's Pract. 42 - 45. ^ Wyatt, Pr. Reg. 88 ; Hinde's Pract. 42. ' Strickland v. Strickland, 12 Simons, R. 253. ' Mitf Eq. PI. by Jeremy, 55 ; Rowe v. Wood, 1 Jac. & Walk. 339 ; Hinde's Pract. 42, 43. , ' If it appears upon the face of a supplemental bill that all the matters alleged therein arose previous to the commencement of the suit, and might have been inserted by way of amendment in the original bill, the defendant may demur to the supplemental bill. Stafford v. Howlett, 1 Paige, R. 200 ; and see Walker v. Gilbert, 7 Smedes & Marsh, 456. §330-832.] BILLS NOT ORIGINAL. 317 the original bill, and witnesses have been examined.^ Nor is it generally allowable to introduce into the bill, by amendment, any matter which has happened since the filing of the bill.^ In such cases, a supplemental bill is the appropriate remedy.^ And such a supplemental bill may not only be for the purpose of putting in issue new matter, which may vary the relief prayed in the original bill ; but also for the purpose of putting in issue matter, which may prove the plaintiff's right to relief, originally prayed.* When- ever a supplemental bill is not a supplemental suit, but only intro- duces supplementary matter, the whole record constitutes but one cause ; and one replication and one cause are to be set down for the hearing.^ [* The original and a supplemental bill make, in eflFect, but one pleading, and in any particular wherein they are in • Mitf. Eq. PI. by Jeremy, 55, 325; 3 Wooddes. Lect. 55, p. 374 ; Wyatt, Pr. Keg. 88, 90 ; Cooper, Eq. PI. 333 ; Goodwin v. Goodwin, 3 Atk. 370 ; Jones v. Jones, 3 Atk. 110, 111 ; Stafford v- Howlett, 1 Paige, K. 200. Mr. Wooddesson says, that an amendment is not allowed after breaking open the seals of the depo- sitions, which is called passing publication. (3 Wooddes. Lect. 374.) But the general rule is as stated by Lord Redesdale. However, in special cases, an amendment will be allowed after witnesses have been examined before publica- tion, and even after publication, if no witnesses have been examined. See Mitf. Eq. PI. by Jeremy, 55 and note, 325 and note (c). See also Wright v. Howard, 6 Madd. R. 106. In Colclough v. Evans, 4 Simons, R. 76, the vice-chancellor said, that the rule (before the late orders) was not to allow an amendment with- out special leave, after the cause is at issue. The same rule is laid down in note (m) to Mitf. Eq. PI. by Jeremy, 55, 56, where it is added, that after the cause is at issue the court will not give the plaintiff leave to amend, unless he shows not only the materiality of the proposed alteration, but also that he was not in a con- dition to have made it earlier. The objection of this qualification is to prevent delays. See also, to the same point, Longman v. CoUiford, 3 Anst. 807 ; Kilcourcy V. Ley, 4 Madd. 212, and the other cases cited in Mitf. Eq. PI. by Jeremy, 55, 56, note (m). See Post, § 886 and note. ' Cooper, Eq. PI. 333 ; Candler v. Pettit, 1 Paige, R. 168 ; Brown v. Higdon, 1 Atk. R. 291 ; Post, § 333. When a plaintiff amends his bill by the insertion of matters which have occurred since the filing of the original bill, the defendant, instead of pleading or demurring to the amended bill on that ground, may, by answer to the amended bill, claim the same benefit that he would have been enti- tled to if he had pleaded or demurred. 2 Daniell, Ch. Pract. 265. See Milligan V. Mitchell, 1 Mylije & Craig, 433. ' Wray v. Hutchinson, 2 Mylne & Keen, R. 235 ; Crompton v. Wombwell, 4 Sim. R. 628; Barfield v. Kelly, 4 Russ. R. 355; Post, § 352. * Crompton v. Wombwell, 4 Sim. R. 628; Post, § 335, 337, 393, 412, 413, 421-423. ^ Catton V. Carlisle, 5 Madd. R. 427. See Greenwood v. Atkinson, 4 Sim. R. 628. 27* g;|^g EQUITY PLEADINGS. [CH. Vni. conflict, are to be regarded as not well pleaded, and are therefore not admitted by demurrer .i] § 333. A supplemental bill (strictly so called) is, in the first place, proper, whenever the imperfection in the original bill arises from the omission of some material fact, which existed before the filing of the bill, but the time has passed, in which it can be intro- duced into the bill by an amendment.^ This may arise either from the importance of the fact not being understood in the pre- ceding stages of the cause, and therefore not being put in issue ;■ or from the fact itself not having come to the knowledge of the party, until after the bill was filed. In either case, the fihng of a supplemental bill is not always a matter of course ;^ but sometimes special leave must be asked of the court ; as, for example, when it seeks to change the original structure of the bill, and to introduce a new and different case.^ It may be added, that a supplemental [* ' Chouteau v. Rice, 1 Min. 106.] 2 Mitf. Eq. PI. by Jeremy, 55, 61, 325 ; Wyatt, Pr. Reg. 88, 89 ; Hinde's Pract. 42, 43, C. ; Veazie v. Williams, 3 Story, R. 54; Ante, § 332. ' [The filing of a supplemental bill seems to be ordinarily within the discretion of the court. Turner v. Berry, 3 Oilman, 541. J * Colclough V. Evans, 4 Sim. R. 76 ; Jones v. Jones, 3 Atk. 110 ; Crompton v. Wombwell, 4 Sim. R. 628. It is not of course, in many other cases, to allow a supplemental bill to be filed at any time. On the contrary, the plaintiff must show that he could not have availed himself of the opportunity of introducing the new facts at any antecedent stage of the cause by way of amendment ; or, that they were of a nature not proper to be introduced by an amendment ; as, for example, events which had occurred since the filing of the bill. Therefore, where a supplemental bill was filed after the hearing of the original bill, stating addi- tional facts which arose, and were known to the plaintiff before he filed his orig- inal bill, and praying that other matters might be taken into the account ordered to be taken before the master in the cause ; the court held that the bill was demur- rable, and that it came in too late a stage of the proceedings. The plaintiff should either have amended his bill on the defendant's answering it, or at least he should have applied to the court for leave to amend, or to file a supplemental bill in an earlier stage of the proceedings. Swan v. Swan, 8 Price, R. 518, 522; Gilb. For. Rom. 109 ; Colclough v. Evans, 4 Sim. R. 76 ; Dias v. Merle, 4 Paige, R. 259. But, although the party has not, under circumstances of this sort, a right to file a supplemental bill, yet the court will sometimes ex mero motu direct such a bill to be filed, if, upon the hearing, the justice of the case, in its own opinion, requires it to be done. Mutter v. Chauvel, 5 Russ. R. 42. See Wood v. Mann, 2 Sumner, R. 316. Where a supplemental bill is brought after publication in the original cause, witnesses cannot be examined to any matter, which was in issue, and not proved in the original cause. And if such proofs are taken, they wiU not be allowed to be read. Hinde, Ch. Pract. 45 ; Bagnal v. Bagnal, Vin. Abridg. Chancery, 439, § 832 - 334.] BILLS NOT original. 319 bill will not be permitted to be filed, whenever the same end may- be obtained by an amendment.^ Nor can it be filed after an in- terlocutory decree, merely to admit new evidence, where the party might, by due diligence, have introduced such evidence originally in the cause, or where he had full means of knowledge within his reach .2 § 334. A supplemental bill may also be proper, in order to bring before the court some party, who is a necessary party to the proceedings, and who has been omitted to be introduced at the stage of the cause, in which an amendment for this purpose may pi. 8 ; Cockburne v. Hussy, 1 Ridg. Par. C. 504. In Gilbert's For. Rom. 108, 109, the Chancery Practice on this subject is shown to have its origin in the civil law. His remarks are also important to the more full exposition of the reasons and restrictions of the Chancery Practice. " According to the civil law," says he, " the plaintiff, by leave of the court, might add any new position before replica- tion ; for the replication was the contestation of the answer ; and therefore after the answer was contested, there could be no positions, but they went on to their proofs. But if any new matter was discovered after replication, they might, by leave of the court, file a supplemental bill touching any matter of fact that was discovered after such replication ; for the supplemental bill was in the nature of a new cause, which might be brought, by leave of the court, after the contestatio litis in the former cause ; and the court might lengthen the time for publication after such supplemental bill and answer came in ; because the prolongation of the proba- tory term was very much in' the breast of the court. But if the supplemental bill be moved for after publication, the court never gives them leave to examine any- thing that was in issue in the former cause, by reason of the manifest danger of subornation of perjury, where they have a sight of the examination of the wit- nesses. But for matter of account there may be a supplemental bill after publica- tion, because they examine to such matters of account before the master or deputy after publication. And this is from the necessity of the thing, because the charge or discharge must be made up privately before the master or deputy, and there- fore they being in charge and discharge, the particulars of which must be proved, such accounts being now kept by books or notes, and formerly by scores or tallies one against another. And therefore a supplemental bill in matters of account is seldom refused. So, likewise, a supplemental bill may be for any fact discovered after publication passed that was not in issue in the same cause, and where such fact might vary the decree. But, after the decree is pronounced and enrolled, it must be by bill of review and reversal." ' Mitf. Eq. PI. by Jeremy, 62. It is not any objection to a supplemental bill, which, by the former practice of the court, was necessary in order to obtain the object that the same purpose may now be attained by a petition ; for this only gives the plaintiff an election, and does not deprive him of the right to file a supplemental bill. Davies v. Williams, 1 Sim. R. 5; Semple v. Price, 10 Sim. R. 238. ' Jenkins v. Eldredge, 3 Story, R. 299. 320 EQUITY PLEADINGS. [CH. VHI. be made.^ In such a case, the original defendants need not be made parties to the supplemental bill, unless they have an interest in the supplemental matter, or may be affected by the interest of the new party .^ § 835. Lord Kedesdale, in speaking upon the subject of the necessity of supplemental bills, has remarked : " This is particu- larly the case, where, after the court has decided upon the suit as framed, it appears necessary to bring some other matter before the court to obtain the full effect of the decision ; or, before a de- cision has been obtained, but after the parties are at issue upon the points in the original bill, and witnesses have been examined, (in which case, the practice of the court will not generally permit an amendment of the original bill,) some other point appears necessary to be made, or some additional discovery is found requi- site."^ Thus, for example, if new charges are required to be made, in order to obtain a further discovery, or a material fact is required to be put in issue, which was not in the cause before, such as a charge of fraud, or a new title, the object cannot be ob- tained but by a supplemental bill.* So, new parties, when neces- sary, may be added by a supplemental bill, where the proceedings are in a 'state in which the object cannot be obtained in any other way.^ § 336. When new events or new matters have occurred since the filing of the bill, a supplemental bill is, in many cases, the proper mode of bringing them before the court ; for, generally, such facts cannot be introduced by way of amendment to the bill.^ • Mitf. Eq. PI. by Jeremy, 61, 62. ^ Bignall v. Atkins, 6 Madd. R. 369 ; Ensworth v. Lambert, 4 John. Ch. R. 605; Jones v. Jones, 3 Atk. 217 ; Holdsworth v. Holdsworth, 2 Dick. R. 799. ' Mitf. Eq. PI. by Jeremy, 55, 56, and the cases there cited. ' Jones V. Jones, 3 Atk. 110 ; Goodwin v. Goodwin, 3 Atk. 370 ; Mitf. Eq. PI. by Jeremy, 62 ; Cooper, Eq. PI. 73, 74 ; Gilb. For. Rom. 108, 109 ; Stafford v. Howlett, 1 Paige, R. 200. * Jones V. Jones, 3 Atk. 110, and the cases before cited. " Cooper, Eq. PI. 74 ; Mitf. Eq. PI. by Jeremy, 61, note (e) ; Hinde's Ch. Pract. 42, 43 ; 3 Wooddes. Lect. 33, p. 375 ; Gilb. For. Rom. 109 ; Crompton v. Wombwell, 4 Sim. R. 628 ; Wyatt, Pr. Reg. 88, 89 ; Boeve v. Skipwith, 2 Ch. E. 142 ; Barfield v. Kelly, 4 Russ. R. 355 ; Greenleaf v. Queen, 1 Peters, R. 148 ; Candler v. Pettit, 1 Paige, R. 168 ; Stafford v. Howlett, 1 Paige, B. 200. In Crompton v. Wombwell, 4 Sim. R. 628, the vice-chancellor said: "It has been admitted, that when a cause is in such a state that the bill cannot be amended, a supplemental bill may be filed. Mr. Pepeys thinks that that can- §334-337.] BILLS NOT ORIGINAL. 321 But, here, we are to understand, that such new events, or new matters, do not change the rights or interests of the parties before the court, (for then, properly speaking, the bill is not simply a supplemental bill,) but they merely refer to and support the rights and interests already in the bill. A supplemental bill may also be brought, not only to insist upon the relief already prayed for in the original bill ; but upon other relief different from that which was prayed for by the original bill, where facts which have since occurred, may require it. Thus, if pending a bill to restrain proceedings at law upon a bill of exchange, the holder should ob- tain a judgment in the suit at law, the plaintiff in equity may file a supplemental bill, stating the facts, and praying for repayment and an indemnity.^ § 337. In regard to supplemental bills, if they are brought after publication in the original cause, to bring before the court facts and circumstances, which have since occurred, they must be such facts and circumstances as are material and beneficial to the mer- its of the original cause, and not merely such as bear as evidence upon the facts in issue in the original cause.^ For, if the new facts and circumstances are relied on as evidence only, to establish the facts in issue in the original cause, they should not be brought for- ward by a supplemental bill, for they are not properly supplemental matter. But they should be brought forward in another form, upon an application to the court to take the examination of the witnesses, or, if discovery is required, by filing a bill of discovery for the purpose.^ not be done except when the new matter will vary the relief prayed by the original bill. But that is not the only case in which such a proceeding may be taken ; for the new matter to be introduced may either be such as will vary the relief prayed, or such as will tend to prove the plaintiff's right to that relief." Post, § 352 ; Pinkus v. Peters, 5 Beavan, R. 253 ; Malcolm v. Scott, 3 Hare, R. 39. ' Pinkus V. Peters, 5 Beavan, R. 253 ; Malcolm v. Scott, 3 Hare, R. 39. = Jenkins v. Eldridge, 3 Story, R. 299. ' Mllner v. Harewood, 17 Ves. 145, 148, 149. This seems to be the result of Lord Eldon's reasoning in this case, although the language is somewhat indeter- minate. On this occasion, his lordship said : " This is a case of the first impres- sion. Suppose, after a bill filed, the plaintiff and defendant met, and the defend- ant expressly stated circumstances, as facts, or that the plaintiff had such a title, and that no other person was present, although that happened after the bill filed, there must be some mode of establishing the fact ; and liberty to file a bill of dis- covery, with a view to obtain an admission from the defendant. Suppose a wit- 322 EQUITY PLEADINGS. £CH. VIII. § 337 a. Hitherto we have chiefly considered supplemental bills on the part of the plaintiff. But they may also be brought on be- half of the defendant in the suit. Where the matter is newly-dis- covered evidence on the part of the defendant, after the cause is at issue, or after pubUcation is passed, or even after a hearing or decree, the defendant may, by a petition to file a supplemental bill, obtain relief, and an order allowing him to introduce the new evi- dence, either by putting the new matter at, issue, or by enlarging publication, or by a rehearing, as the particular stage of the cause, at which the discovery is made, may require.^ § 338. A supplemental bill may also be filed, as well after, as before a decree ; and the bill, if after a decree, may be, either in aid of the decree, that it may be carried fully into execution ; or that proper directions may be given upon some matter omitted in the original bill, or not put in issue by it, or by the defence made to it ; or to bring forward parties before the court ; or it may be used to impeach the decree, which is the peculiar case of a supple- mental bill, in the nature of a bill of review, of which we shall treat ness had been present, and the defendant by answer denies the conversation, the plaintiff must in some way have the benefit of that evidence. Yet I do not rec- ollect an instance, where the discovery of a circumstance that took place after the replication, as in this case, was considered so material as to furnish any informa- tion with regard to the mode of obtaining that benefit." Afterwards, when he pronounced his final judgment upon the two points stated in the argument, viz. : (1.) That the matter stated was not proper for a supplemental bill. (2.) If it was proper that it was not material, he added : " There is no recollection of a supplemental bill of this kind ; and, if a new practice is to be settled, the strong inclination of my opinion is, that, when the particular case arises, where either conversation, or admission of the defendant, becomes material after answer or replication ; or, as in this instance, after examination of witnesses in the original cause ; or, if a new fact happens after publication, which it is material to have before the court in evidence, when the original cause is heard ; it is much better that the examination of witnesses, if required, should be obtained upon a special application for the opportunity of examining, and that the depositions may be read at the hearing ; or, if discovery is required, that the party should file a bill for that purpose merely ; and, if relief is required, that the answer, comprehend- ' ing the discovery, should be read at the hearing of the original cause." Ante, § 265 a ; Post, § 352. ^ Baker and Wife v. Whiting, 1 Story, K. 218 ; Barrington v. O'Brien, 2 Ball & Beatt. 140 ; Standish v. Radley, 2 Atk. R. 177 ; Gould v. Tancred, 2 Atk. K. 533; Ante, §332, 335; Post, § 393, 412, 413, 421-423, 890. But new oral evidence, merely corroborative or cumulative, has been held not to be a suf- ficient foundation for a supplemental bill. Jenkins v. Eldredge, 3 Story, R. 299. §337 a -340.] bills not original. 323 hereafter.^ But where a supplemental bill is brought in aid of a decree, it is merely to carry out and to give fuller effect to that decree, and not to obtain relief of a different kind on a different principle ; the latter being the province of a supplementary bill in the nature of a bill of review, which cannot be filed without the leave of the court.^ § 338 a. But, in whatever manner a supplemental bill is brought forward, if it is for new discovered matter it ought to be filed as soon as practicable after the matter is discovered. For, as we shall presently see, if the party proceeds to a decree after a discovery of the facts upon which his new claim is founded, he will not be per- mitted afterwards to file a supplemental bill, in the nature of a bill of review, founded on such facts.^ On the other hand, if an ob- jection is meant to be taken by the defendant, that a supplemental bill brings forward matters, which might have been introduced by way of amendment, or at an earlier period of the cause, he should do it by way of demurrer, or plea, or answer, to the supplemental bill. It will be too late to take the objection at the hearing.* § 389. To entitle the plaintiff to file a supplemental bill, and thereby to obtain the benefit of the former proceedings, it must be in respect to the same title, in the same person, as stated in the original bill.^ Thus, if a person should file an original bill, as heir at law of the mortgagor, to redeem ; and it should turn out, upon an issue and hearing of the cause, that he is not the heir at law, and he afterwards purchases the title of the true heir at law, he cannot file a supplemental bill to have the benefit of the former proceedings ; for he claims by a different title from that asserted in the original bill. His true course would be to file, an original bill.6 § 340. If the interest of a plaintiff, suing in autre droit, entirely ' Mitf. Eq. PL by Jeremy, 62 ; Wyatt, Pr. Reg. 88, 89 ; Hinde's Ch. Prac. 43 ; Post, § 412-428 ; Hodson v. Ball, 1 Phill. Ch. E. 177, 180. See Ta.vlor v. Taylor, 1 Mac. & Gord. 405 ; O'Hara v. Shepherd, 3 Md. Ch. Dec. 306. 2 Hodson V. Ball, 1 Phill. Ch. R. 177; O'Hara v. Shepherd, 3 Md. Ch. Dec. 306 ; Post, § 351 a, 421 note, 422. ' Pendleton v. Fay, 3 Paige, R. 295 ; Post, § 423. See Dias v. Merle, 4 Paige, E. 259 ; Fulton Bank v. New York and Sharon Canal Co. 4 Paige, R. 127. * Fulton Bank v. New York and Sharon Canal Co. 4 Paige, R. 127. ' Ante, § 336 ; Post, § 345, 346. " Tonkin v. Lethbridge, Coop. Eq. R. 33 ; Oldham v. Eboral, 1 Coop. Sel. Cas. 27; Rylands v. La Touche, 2 Bligh. R. 586 ; Pilkington v. Wignall, 2 Madd. R. 240. 324 EQUITY PLEADINGS. . [CH. VIH. determines by death or otherwise, and some other person there- upon becomes entitled to the same property, under the same title, as in the case of new assignees under a commission of bankruptcy, upon the death or removal of former assignees, or in the case of an executor or administrator, upon the determination of an ad- ministration durante minori mtate, or pendente lite, the suit may be likewise added to and continued by a supplemental bill.^ For, in these cases, there is no change of interest, which can affect the questions between the parties, but only a change of the person, in whose name the suit must be prosecuted.^ And if there has been no decree, the suit may proceed, after the supplemental bill has been filed, in the same manner as if the original plaintiff had con- tinued such ; except that the defendants must answer the supple- mental bill, and either admit or put in issue the title of the new plaintiff.^ But if a decree has been obtained before the event on which such a supplemental bill becomes necessary, although the decree be only a decree nisi, there must be a decree on the sup- plemental bill, declaring that the plaintiff in that bill is entitled to stand in the place of the plaintiff in the original bill, and to have the benefit of the proceedings upon it, and to prosecute the decree, and take the steps necessary to render it effectual.* ' Mitf. Eq. PL by Jeremy, 4th edit. 64. Lord Redesdale seems to take a dis- tinction between the case of the determination of the interest of a plaintiff suing in autre droit, (as in the cases stated in the text,) and the case of a determination of the interest of a plaintiff suing in his own right, (as in the case of bankruptcy of a plaintiff,) holding, that in the former case, the party succeeding to his rights must sue by a mere supplemental bill ; and in the latter case, by an original bill, in the nature of a supplemental bill. Post, § 349 ; Mitf. Eq. PI. by Jeremy, 4th edit., 65, 67, ^2, 98. It does not seem to me that there is any well-founded dis- tinction between the cases. In each case, it would seem that the bill should be an original bill in the nature of a supplemental bill, for it brings forward new interests by new parties. And I cannot but think that some confusion on the subject has arisen, from the authorities not nicely distinguishing in their language a mere supplemental bill from an original bill in the nature of a supplemental bill, but calling each by the generic name of a .supplemental bill. Mr. Cooper (Coop. Eq. PI. 76 ; Post, § 349, note 4) insists, that there is no distinction be- tween the cases where the plaintiff sues in his own right or in autre droit. How- ever, in deference to Lord Redesdale, I have left the text as it stands, according to the very language used by him. Post, § 349, note, 350, note. See Cooper, Eq. PI. 75, 76. ' Mitf Eq. PI. by Jeremy, 4th edit. 64. • Ibid. * Mitf Eq. PL by Jeremy, 64, 65 ; Cooper, Eq. PL 76 ; Gilb. For. Rom. 176 ; Anon. 1 Atk. 88 ; Brown v. Martin, 3 Atk. 218. §340-342.] SUPPLEJIENTAL BILLS. 325 § 340 a. So, if a suit should be brought by church-wardens of a parish church,' to restrain a person from pulling down the church- yard wall, and their office should cease, while the suit is pending, and successors in office are appointed in their stead, they may file a supplemental bill, for the purpose of stating facts which have occurred since the filing of the bill, and may join their successors with them as co-plaintiffs.^ § 341. So, where a decree directed the master to approve of a settlement on a wife and her children ; but before the report was made, the wife died ; it was held that the children had, by a sup- plemental bill, a right to a provision out of the property.^ § 342. So, if the interest of a defendant is not determined, and only becomes vested in another by an event subsequent to the in- stitution of a suit, as in the case of alienation by deed or devise, or by bankruptcy or insolvency, the defect in the suit may be sup- plied by supplemental bill, or a bill in the nature of a supplemental bill, whether the suit is become defective merely, or it is abated, as well as become defective.^ For, in these cases, the new party ' Marriott v. Tarpley, 9 Sim. R. 279. 2 Lady Elibank v. Montolieu, 5 Ves. 737 ; S. C. 10 Ves. 84 ; Cooper, Eq. PI. 74. " Mitf. Eq. PL by Jeremy, 68 ; Post, § 349 ; Sedgwick v. Cleaveland, 7 Paige, 290. On this occasion, Mr. Chancellor Walworth stated the distinction between a voluntary alienation of a defendant pendente lite, and an involuntary alienation by insolvency or bankruptcy, by operation of law. " In the case of the defend- ants," said ho, " whose interest in the subject-matter of the litigation becomes vested in others, pendente lite, without an actual abatement of the suit, a distinc- tion is very properly made between the transfer of that interest by the mere vol- untary act of the defendant, as in the case of a sale or assignment in the ordinary course of business, and a transfer of that interest by operation of law, as upon an assignment in bankruptcy or under our insolvent acts. In the first case, the complainant is not bound to make the assignee a party, although he may do so if he deems it essential to the relief, to which ho may be entitled against such assignee. But in the last case, the assignee, who has become such by operation of law, has a right to be heard, and must be made a party before the suit can be further proceeded in. The reason of the distinction is obvious. In the first case, the assignee, who is a mere voluntary purchaser, pendente lite, cannot defeat the complainant's rights, or delay his proceedings, by such purchase ; for if he could do so, the litigation, by successive assignments, might be rendered interminable. He therefore has no right to be hoard, unless he brings himself before the court by a supplemental bill, in the nature of a cross bill, which he may sometimes do to protect his rights as such assignee. And the decree in the original suit, to which such assignee was not a party, will bind the assigned property in his hands. Neither can the defendant, who has made such voluntary assignment subsequent EQ. PL. 28 326 EQUITY PLEADINGS. [CH. VHI. comes before the court exactly in the same plight and condition as the former party, is bound by his acts, and may be subject to all the costs of the proceedings from the beginning of thesuit.i But the distinction is constantly to be borne in mind between cases of voluntary alienation and cases of involuntary alienation, as by the insolvency or bankruptcy of the defendant. In the latter cases, the assignee must be made a party ; in the former, he may or not, at the election of the plaintiff.^ § 343. Having thus considered, in a brief manner, the proper cases for a supplemental bill, correctly so called, let us now pro- ceed to a statement of the true frame and structure thereof. A supplemental bill must state the original bill, and the proceedings thereon ; and if the supplemental bill is occasioned by an event subsequent to the original bill, it must state that etent, and the to the commencement of the suit, urge that as a reason why the suit should not proceed against him in the same manner, as if no such transfer had been made. In the other case, the assignee, upon -whom the interest of the defendant has been east by operation of law for the benefit of others, has a right to be heard, for the protection of that interest. And the whole legal and equitable interest therein, which formerly belonged to the defendant, being vested in such assignee by the mere operation of the law itself, he will not be legally or equitably bound by a decree to which he is not a party. (Deas v. Thome, 3 Johns. Kep. 544.) The reasons for this difference between the two cases do not exist in relation to the transfer of the interest of the complainant ; and where the adverse party makes the objection to his proceeding in his own name without bringing the assignee before the court. The party, whose interest in the subject-matter of the suit has become Aivestei pendente lite, can only object to the proceedings of his adversary in the suit, where such interest has become vested in another by operation of law, and not by his own mere voluntary act. But where the party, who has assigned the whole or a part of his interest in the subject-matter of the suit, attempts to take any active proceeding therein, the adverse party may object to such pro- ceeding, on the ground that the suit has become abated or defective as to such assignor, so that the same cannot be proceeded in until the assignee is made a party. Perhaps there may be some exceptions to this rule, particularly where the adverse party, after he becomes acquainted with the fact of such assignment, does some act, or takes some proceeding in the cause, on his part, which amounts to a legal waiver of his right to urge the objection that the suit had abated or become defective by reason of the transfer of interest." ' Mitf. Eq. PI. by Jeremy, 68 ; Whitcomb v. Minchin, 5 Madd. R. 91 ; Foster V. Deacon, 6 Madd. K. 59 ; Wyatt, Pr. Reg. 91 ; Sedgwick v. Cleaveland, 7 Paige, R. 290-292; Post, 349. 2 Sedgwick v. Cleaveland, 7 Paige, R. 290, 291 ; Sujira, note; Ante, § 136, 340 and note ; Post, § 351 ; 2 Story on Eq. Jurisp. § 908 ; See Turner v. Wight, 4 Beavan, R. 40 ; Post, § 349. § 342, 343.] SUPPLEMENTAL BILLS. 327 consequent alteration with respect to the parties ; and, in general, the supplemental bill must pray, that all the defendants may ap- pear and answer to the charges it contains.^ For if the supple- mental bill is not for a discovery inerely, the cause must be heard upon the supplemental bill at the same time that it is heard upon the original bill, if it has not been before heard ; and if the cause has been before heard, it must be further heard upon the supple- mental matter.^ If, indeed, the alteration or acquisition of inter- est happens to a defendant, or a person necessary to be made a defendant, the supplemental bill may be exhibited by the plaintiff in the original suit against such person alone, and may pray a decree upon the particular supplemental matter alleged against that person only ; unless, which is frequently the case, the inter- ests of the other defendants may be affected by that decree.^ But it is not necessary for the plaintiff, when he files a supplemental bill, to state in it all the circumstances of the case at length. All that is requisite is, that he should state so much of the case as shows that there was an equity in it.* Where a supplemental bill is merely for the purpose of bringing formal parties before the court as defendants, the parties defendants to the original bill need not in general be made parties to the supplemental bill.^ And, in general, if new parties are brought before the court upon a sup- plemental bill, the original defendants need not be made parties to the supplemental bill, unless they have an interest in the supple- mental matter;^ or their interests require that the new defendant should be a party to the suit.^ [In a recent case, the rule on this subject was thus stated: The original defendants are necessary parties to a supplemental bill, when the supplemental suit is occa- sioned by an alteration after the original bill is filed, aflFecting the rights and interests of the original defendants as represented on ' Mitf. Eq. PI. by Jeremy, 76. ^ Ibid. « Ibid. ; Ante, § 334. * Vigers v. Lord Audley, 9 Simons, R. 72, 77. ' Mitf. Eq. PI. by Jeremy, 75, 76, and cases there cited; Cooper, Eq. PI. 83, 84 ; Ante, § 334. See the forms in Van Heyth. Eq. Drafts. 338 - 340 ; Hinde, Ch. Pract. 43, 44 ; Bignall v. Atkins, 6 Madd. R. 369 ; Brown v. Martin, 3 Atk. 217. " Bignall v. Atkins, 6 Madd. R. 360 ; Ensworth v. Lambert, 4 John. Ch. R. 605 ; Ante, § 334. See Baker v. Holland, 3 Hare, R. 68, 73 ; Lyne v. Pennell, 1 Simons, (N. S.) 113. ' Jones V. Howells, 2 Hare, R. 342 ;' Parker v. Parker, 9 Beavan, R. 144. 328 EQUITY PLEADINGS. [CH. VIH. the record ; but they are not necessary parties to a supplemental bill, where there may be a decree upon the supplemental matter against the new defendants, unless the decree will affect the inter- ests of tlie original defendants ; nor are they necessary parties, where the supplemental bill is brought merely to introduce formal parties.!] -phe facts, too, brought forward by the supplemental 1 Wilkinson v. Fowkes, 9 Ilare, 193 ; 12 Eng. Law & Eq. E. 184. The vice- chancellor said : " In this ease an objection was raised to the cause being heard, upon the ground that the original defendant had not been a party to a supple- mental bill, and the question was much argued, in what cases original defendants were necessary parties to supplemental suits. I have thought it right, therefore, to examine the authorities upon the subject. The earliest case is, I believe, Jones V. Jones, 3 Atk. 217, where Lord Hardwicke, after some observations which seem to refer to the particular circumstances of that case, and to the period at which the objection may be taken, states his opinion that the original defendants are not necessary parties to a supplemental bill merely introducing formal parties. Lord Redcsdale, in his treatise on Pleading, referring to this case, which, from his well- known accuracy, I have no doubt he had examined with the Registrar's Book, deduces from it more general rules : First, that where an event occurs after the filing of the original bill, and there is a consequent alteration with respect to the parties in general, the defendants to the original suit must be parties to the sup- plemental suit, the reason assigned being that the supplemental suit must be heard with the original suit ; or, if the original suit has been heard, then upon the sup- plemental matter. From which reason, I think it is to be collected, that what he means by a consequent alteration with respect to the parties, is any alteration which may affect the rights or interests of the original defendants, as represented on the record. Why is the cause to be heard as to them, unless their interests may be affected by the alteration which has taken place ? Secondly, Lord Redes- dale says that the original defendants need not be made parties to the supple- mental suit, where there may be a decree upon the supplemental matter against the new defendants, unless the decree will affect the interests of the original de- fendants ; and, thirdly, he adopts Lord Hardwicke's proposition as to formal de- fendants. The question seems to have rested thus on Lord Redesdale's authority till we come to the decisions of Sir J. Leach, in Bignall v. Atkins, 6 Madd. 369;; and of the late vice-chancellor of England, in Greenwood v. Atkinson, 5 Sim. 419 ; and neither of these cases seems to me to have altered the law of the court as laid down by Lord Redesdale. In both of them the original defendant had already set up the case he insisted upon against the new defendant, whom he re- quired to be made a party ; and neither of them, therefore, fell within Lord Redes- dale's first class of cases. It is to be observed, however, as to those cases, that each of them, and, as I apprehend, most correctly adopts the principle that the supple- mental suit grafts the new parties into the original suit, and enables the court to deal with the parties to both records as if they were all parties to the same rec- ord ; and, further, that Bignall v. Atkins wholly negatives the idea that a defend- ant to the original suit can require to be made a party to the supplemental suit, upon the ground of a right to question the representative character of the new § 343.] SUPPLEMENTAL BILLS. 329 bill, should be material to the matters in controversy ; for, if they are not, a demurrer will lie to the supplemental bill.^ defendant, an idea for which, I apprehend, there can be no foundation, as the title cannot be tried in this court. The next case was, I believe, Feary v. Stephenson, 1 Beav. 42, before Lord Langdale, a case in which his lordship, whether correctly or not, is not material to consider, went upon the ground, that the interests of accounting defendants might be materially aifected by a change in the parties by whom they were called to account ; and the case thus fell within Lord'Redesdale's first class of cases, and required the original defendants to be made parties to the supplemental suit. Feary v. Stephenson has been succeeded by the series of cases cited from Mr. Hare's Reports ; Dyson v. Morris, 1 Hare, 413 ; Jones v. Howells, 2 Id. 342, and Holland v. Baker, 3 Hare, 68 ; to which may be added, Parker j;. Carter, 4 Id. 406, and Parker v. Parker, 9 Beav. 144 ; in some of which cases the original defendants were required to be made defend- ants to the supplemental suit, and in others not. They were not required to be made parties to the supplemental suit in Dyson v. Morris, or in Parker v. Carter, because their, rights and interests, as represented on the record, remained the same as before ; and the graft of the parties into the original suit by the supple- mental suit, enabled those rights and interests to be worked out. They were re- quired to be parties in the other cases, because their rights and interests might be affected by the alteration which had taken place. Different reasons are assigned in these cases for the different decisions ;. but, in substance, the question in all of them has been, whether the alteration in the record affected ■ the position or the interests of the original defendants. The language of Lord Redesdale has been varied ; but his distinctions do not appear to me to have been shaken. By those distinctions I shall abide in deciding the present case, believing that the attempt to lay down more definite rules upon a matter which must in all cases be governed by circumstances, varying in each particular case, only lead to increased confu- sion. Adopting, then. Lord Redesdale's positions, I have to consider whether, in this particular case, the interests of the original defendant can be affected by the alteration introduced by the supplemental bill. Now the original bill is filed by an heir against the defendant as purchaser from his ancestor, for the purpose of setting aside his contract and deeds of purchase. At the hearing, it was objected that the personal representative of the ancestor was a necessary party to the suit ; and I held the objection to be good, as the bill alleged the purchase-money to be in part unpaid ; and I therefore considered that the personal representative had an interest in the question, whether the contract was good or not. The objection having been allowed, the supplemental bill has been filed by the heir against the personal representative only ; the purchaser, therefore, has no opportunity of raising any question between himself and the personal representative which may not have been raised in the original suit. His interest, therefore, may be affected if the nature of the suit admits of any such question being raised. It will not, indeed, be affected if this biU be dismissed ; but if the transaction be set aside, may not the purchaser have rights to insist upon against the personal representa- tive, which may be preliminary to any decree against him V May he not have ^ Milner v. 'Harewcod, 17 Ves. 144 ; Adams v. Dowding, 2 Madd. R. 53. 28* 830 EQUITY PLEADINGS. [CH. VIH. § 344. If a supplemental bill to a bill to perpetuate testimony, is filed after the examination of the witnesses under the original bill has been completed, and the commission is closed, for the pur- pose of the further examination of witnesses, upon the ground, that new material facts have been discovered since the filing of the former bill, it will not be sufiicient to make such an allegation in general terms, but the supplemental bill must state what such new material facts are, as is done upon original bills in such cases.^ § 345. Secondly, an original bill in the nature of a supplemen- tal bill. This division is founded rather upon formal technical principles, than upon any substantial difference from a supplemen- tal bill, properly so called. Indeed, in the books they are usually confounded together.^ The most prominent distinction between them, however, seems to be, that a supplemental bill is properly applicable to those cases only, where the same parties, or the same interests, remain before the court ; whereas, an original bill in the nature of a supplemental bill, is properly applicable, when new- parties, with new interests, arising from events since the institu- tion of the suit, are brought before the court.^ § 346. Thus, for example, when any event happens, subsequent to the time of filing an original bill, which gives a new interest in the matter in dispute to any person not a party to the bill, such as the birth of a tenant in tail ; or which gives a new interest to a party upon the happening of some other contingency ; the defect rights against the plaintiff himself which could not be set up in the absence of the .personal representative ? I think that he may, or, at all events, that he is enti- tled to state the grounds on which he contends that he may ; and, therefore, though most reluctantly, I feel myself compelled to allow this objection. I would gladly have acted on the oiFer made on the part of the personal representative, to submit to any decree which might be thought proper ; but I think the state of the authorities precludes me from doing so ; for, on referring in my copy of the reports to the case of Jones v. Howells, 2 Hare, 346, in which the same offer was made, I find a note against it, that it was affirmed by the Lord Chancellor." ' Knight V. Knight, 4 Madd. K. 1. If new evidence has been discovered since the commission was closed, as to the facts stated in the original bill, the proper course would be, not to file a supplemental bill, but to apply to the court for per- mission to examine the new witnesses. Ibid. 2 Mr. Cooper treats of both of them under the same head, Cooper, Eq. PL 62 ; and although Lord Redesdale has made a formal division of them, yet in discuss- ing them, he has mixed the cases together, without any attempt to arrange them into separate heads. Mitf Eq. PI. by Jeremy, 61-76. See also KusseU v. Sharp, 1 Ves. & B. 600 ; Randall v. Munford, 18 Ves. 424. ' Cooper, Eq. PI. 75, 76 ; Ante, § 336, 339. §344-846.] SUPPLEMENTAL BILLS. 331 may be supplied by a bill, which is usually called a supplemental bill, and is in fact merely so with respect to the rest of the suit, although with, respect to its immediate object, and against any new party, it has in some degree the effect of an original bill.^ If any event happens, which occasions any alteration in the inter- est of any of the parties to a suit, and does not deprive a plain- tiff suing in his own right, of his whole interest in the subject, as in the case of a mortgage or other partial change of interest ; or if a plaintiff, suing in his own right, is entirely deprived of his in- terest, but he is not the sole plaintiff; the defect arising from either event may be supplied by a bill of the same kind, wliich is likewise commonly termed, and is, in some respects, a supple- mental bill merely, although in other respects, and especially against any new party, it has also in some degree the effect of an original bill.^ In all these cases, the parties to the suit are able to proceed in it to a certain extent, although from tlie defect aris- ing from the event, subsequent to the filing of the original bill, the proceedings are not sufficient to attain their full object.^ The ' MItf. Eq. PI. by Jeremy, 63. ^ Ibid. ' Mitf. Eq. PI. by Jeremy, 63, 64, 72, 98. Sir Thomas Plumer, in commenting on this passage, in Adams v. Dowding, 2 Madd. R. 53, used the following lan- guage : " If merely relevant events, happening subsequent to the filing of a bill, makes a supplemental bill necessary, it is necessary in this case ; but it is not all relevant events posterior to a bill, that render a supplemental bill necessary. It can seldom be necessary, where the bill is for an account. When a bill is filed for an account of tithes, an account is taken of the receipts posterior to the origi- nal bill ; and it never was supposed, that a supplemental bill was necessary, be- cause tithable matter had been received subsequent to the filing of the original bill. It may be asked, what limit is there ? When is a supplemental bill neces- sary ? Lord Kedesdale has clearly shown, that it is not merely because an event has happened posterior to the original bill, that a supplemental bill becomes ne- cessary. He says : ' When any event happens subsequent to the time of filing an original bill, which gives a new interest in the matter in dispute to any person, not a party to the hill; as the birth of a tenant in tail,' &c., a supplemental bill may be filed. The proposition is qualified by the words, ^ gives a new interest.' And in another passage, he says : ' A supplemental bill must state the original bill and the proceedings thereon ; and if the supplemental bill is occasioned by an event subsequent to the original bill, it must state that event, and the consequent altera- tion, with respect to the parties. Are there any new parties brought forward by this supplemental bill ? None. If a supplemental bill is filed before a decree on the original bill, both bills are heard together : if after a decree, then the cause is heard upon the supplemental bill only. If this supplemental bill had been filed after a decree, what other decree could have been made, except what had already been made in the original suit ? " See also Gilb. For. Rom. 109. 332 EQUITY PLEADINGS. [CH. VIII. bill here spoken of, is properly called an original bill, in the na- ture of a supplemental bill ; because it is original, as to the new parties and new interests; and it is in some sort supplemental also, as being an appendage to the former bill, as to the old par- ties and the old interests.^ § 347. Upon the same ground, where a husband and wife are defendants to a bill, if by the death of the husband a new interest arises to the wife, the suit becomes defective ; and an original bill in the nature of a supplemental bill, becomes necessary to bring that interest before the court ; for she is not bound by the answer put in during her coverture? § 348. Upon the same ground, if a person, pendente lite, be- comes assignee of the interest of a party in the suit, and wishes to be admitted to take part in it, he must bring forward his claim- by an original bill, in the nature of a supplemental bill.^ [§ 348 a. So, where the plaintiff, before A, one of the defend- ants had appeared, dismissed the bill as against him ; and after- wards, some of the other defendants insisting that A was a neces- sary party, the plaintiff was allowed to file a supplemental bill to bring him again before the court.*] § 349. So, if a sole plaintiff, suing in his own right, is de- prived of his whole interest in the matters in question, by an event subsequent to the institution of a suit, as in the case of a bankrupt or insolvent debtor, whose whole property is transferred to assignees ; ^ or in such a suit the plaintiff assigns his whole in- terest to another ; the plaintiff in either case being no longer able to prosecute the suit for want of interest, and his assignees claim- ing by a title, which may be litigated, the benefit of the proceed- ings cannot be obtained by a mere supplemental bill ; but it must be sought by an original bill in the nature of a supplemental bill.6 1 Cooper, Eq. PI. 75, 76 ; Mitf. Eq. PI. by Jeremy, 99 ; Hinde, Ch. Pract. 44 ; Ante, § 340 and note. ' Mole V. Smith, 1 Jac. & Walk. 665. ' Foster v. Deacon, 6' Madd. K. 59. * Wellesly v. Wellesly, 17 Simons, 59. ' See Lee v. Lee, 1 Hare, R. 621 ; Robertson v. Southgate, 5 Hare, 223 ; Ante, § 328, 329, 342. » Mitf. Eq. PI. by Jeremy, 65, 67, 72, 98. See also Anon. 1 Atk. 88 ; Wyatt, Pr. Reg. 89 ; Sedgwick v. Cleaveland, 7 Paige, R. 287, 290. On this occasion, Mr. Chancellor Walworth examined the doctrine at large, and said : " If this had § 346 - 350.] SUPPLEMENTAL BILLS. 333 § 350. And, if by any event, the whole interest of a defendant is entirely determined, and the same interest is become vested in been the case of an a.ssignment by the complainant under the insolvent acts, there could have been no possible doubt, that the suit had abated ; or rather that it had become so defective, that the complainant could not proceed any further in his own name against the defendant, if the latter had thought proper to raise the ob- jection. This court requires the real parties in interest to bring the suit, except in certain cases, where the complainant represents the rights of those for whom the suit is brought, both legally and equitably, as in the case of executors, or of trustees, or assignees under the insolvent acts. And where the sole complainant, who originally brought the suit in his own name and not in autre droit, is dis- charged under the insolvent acts, and makes an assignment of his property for the benefit of his creditors, the assignee must be made a party before the suit can be further proceeded in. (Williams v. Kinder, 4 Ves. Rep. 387.) The proper course for the defendant, in such a case, if he wishes to have the suit proceeded in, or put an end to, is to apply to the court for an order, that the assignee file a supplemental bill, in the nature of a bill of revivor, within such time as shall be prescribed by the court for that purpose, or that the complainant's bill be dis- missed. And notice of such application should be served upon the assignee, as well as upon the complainant in the original suit. (Porter v. Cox, 5 Madd. Rep. 80.) This proceeding is in analogy also to the statutory direction in case of the abatement of a suit by the death of the sole complainant, where his representa- tives neglect to revive the suit. (2 R. S. 185, § [118] 124.) From the report of the case of Massey v. Gillelan, 1 Paige, R. 644, it would seem to have been decided, that the suit might be continued, as at law, in the name of the original complainant, upon his giving security for costs. The question, however, as to the right of the complainant to proceed without bringing the assignees before the court by a supplemental bill, was neither raised nor considered, in that case ; as the defendant merely asked, that the suit should not be permitted to proceed in the name of the insolvent debtor, unless security for costs was filed. But in the subsequent case of Garr v. Gomez, in the court for the Correction of EiTors, 9 Wend. R. 649, the principle, that the suit becomes defective in such a case, and cannot be proceeded in, if objected to by the defendant, until the assignees are brought before the court, is distinctly recognized. It is proper also to remark, that in the case of an assignment under the bankrupt or insolvent acts, the suit is not strictly abated, even as to the complainant ; but is merely become so defec- tive, that he cannot proceed therein, until the assignee is brought before the court. And the assignee becomes so far the legal and equitable representative of the rights of the complainant, that upon a jiew and supplemental bill in the nature of a bill of revivor and supplement being filed by the assignee, to continue the proceedings in his own name, it is not necessary to make the former com- plainant a party thereto ; which would be necessary in the case of an assignment of only a part of the interest of the complainant in the subject-matter of the suit. The complainant, however, who has still an interest in having his debts paid out of the assigned property, or at least has an interest in the surplus, if there should be any, is not obliged to abandon the suit absolutely, if the suit is necessary for his protection ; although the assignee refuses to proceed therein, without making 334 EQUITY PLEADINGS: [CH. VIU. another, by a title not derived from the former party, as in the case of a succession to a bishopric or benefice, or in the case of the any compromise of the suit with the defendant. In that case, the complainant may proceed in his own name ; but as the assignee has become a necessary party as to all subsequent proceedings in the suit, the complainant must bring him before the court by a supplementary bill. (Mitford's Equity Plead. 66, 4th Lond. edit. ; Story's Eq. PI. 282, note ; 2 John. Ch. Eep. 18.) In such a case, however, the complainant might be required to file security for costs, as directed by the third subdivision of the first section of the title of the Revised Statutes relative to security for the payment of costs." (2 K. S. 620.) See Ante, § 156, 342 ; Mills v. Hoag, 7 Paige, R. 18 ; Binks v. Binks, 2 Bligh, R. 593. Mr. Cooper insists, that there is no diflference between the case of a plaintiff suing in autre droit, and that of a plaintiff suing in his own right, as to the right to maintain a supplemental bill. His language is : " And although Lord Redesdale, in his treatise, takes a distinction between a sole plaintiff suing in autre droit, and a sole plaintiff suing in his own right, laying it down, that, in the first case, if the interest determines by death or otherwise, and some other person thereupon becomes entitled to the same property under the same title, as new assignees of a bankrupt, that the suit may be continued by a supplemental bill ; but that in the other case of a sole plaintiff suing in his own right, as in the case of a bank- rupt or insolvent debtor, whose whole property is transferred to assignees, the benefit of the proceedings cannot be had by or against the assignees, by a supple- mental bill, but must be sought by an original bill ; yet, with great deference to so high an aiuthority, I must observe, that this distinction certainly is, in the case of bankruptcy, and some others, now disregarded in practice, and which practice seems sanctioned by the later authorities." Cooper, Eq. PI. 76 ; Ante, § 340, note. Whether a suit in equity is abated by the bankruptcy of the plaintiff, as well as defective, has been a matter of doubt. But it seems now thought, that the weight of authority is, that it is defective merely, and that the assignees may be brought forward by a supplemental bill. See Cooper, Eq. PI. 76, 77; Mitf. Eq. PI. by Jeremy, 65 and note ((), 66 and notes, 67 ; Lee v. Lee, 1 Hare, 621; Ante, § 329. Lord Redesdale's language is: "If a commission of bank- ruptcy issues against any party to a suit, or he is discharged as an insolvent debtor, his interest in the subject is, unless he is a trustee, generally transferred to his assignee ; and to bring them before the court a supplemental bill is neces- sary ; to which the bankrupt or insolvent debtor is not usually required to be a party, although a bankrupt may dispute the validity of the commission issued against him. But, if plaintiff, a bankrupt may proceed himself in the suit, if he disputes the validity of the commission ; or a bankrupt or insolvent may proceed, if the suit is necessary for his protection ; or if his assignees do not think fit to prosecute the suit, and he conceives that it is for his advantage to prosecute it. Under those circumstances, however, he must bring the assignees before the court by supplemental bill, as any benefit, which may be derived from the suit, must be subject to the demands of the assignees, unless he seeks his personal protection only against a demand, which cannot be proved, or which the person making the demand may not think fit to prove, under the commission issued against the bankrupt, or for which the insolvent debtor may not be discharged." Lord § 350.] SUPPLEMENTAL BILLS. 335 determination of an estate tail, and the vesting of a subsequent remainder in possession, the benefit of the sxiit against the person, becoming entitled by the event described, must also be obtained by an original bill in the nature of a supplemental bill ; although, if the defendant, whose interest has thus determined, is not the sole defendant, the new bill is supplemental to the rest of the suit, and is so termed and considered.^ The same rule will apply to a Eldon, in alluding to cases of bankruptcy, used the following language in Randall V. Munford, 18 Ves. 424, 428: "This court, however, without saying whether bankruptcy is or is not strictly an abatement, has said, that, according to the course of the court, the suit has become as defective as if it was abated ; and as the assignees will have the benefit of the suit, and assuming in practice that he who is a bankrupt will continue, the course which the court has taken is to require him to bring his assignees before it by bill of revivor, or supplemental bill in the nature of a bill of revivor, or by whatever name it is called. And ,the court supposing that the bankrupt will find the means of giving the assignees notice, and not troubling itself with that diflaculty, dissolves the injunction, fre- quently with great injustice, if they do not come here.'' In Harrison v. Ridley, Com. R. 589, a bill by the assignees of an insolvent debtor was called an original bill in the nature of a bill of revivor. ■'■ Mitf. Eq. PI. by Jeremy, 67, 68, 72, 98. See Foster v. Deacon, 6 Madd. R. 59; Lloyd v. Johnes, 9 Ves. 54; Oldham v. Eboral, 1 Coop. Sel. Cas. 27. Lord Redesdale has in another passage repeated the doctrine stated in this and the preceding section, with some additional explanations. He says : " If the interest of a plaintiff or a defendant, suing or defending in his own right, wholly deter- mines, and the same property becomes vested in another person not claiming under him, as in the case of an ecclesiastical person succeeding to a benefice, or a remainder-man in a settlement becoming entitled upon the death of a prior tenant under the same settlement, the suit cannot be continued by a bill of revivor, nor can its defects be supplied by a supplemental bill. For though the Accessor in the first case, and the remainder-man in the second, have the same property, which the predecessor, or prior tenant enjoyed ; yet they are not in many cases bound by his acts, nor have they in some cases precisely the same rights. But, in general, by an original bill in the nature of a supplemental bill, the benefit of the former proceedings may be obtained. If the party whose in- terest is thus determined, was not the sole plaintiff or defendant, or if the prop- erty, which occasions a bill of this nature, afi"ects only a part of the suit, the bill as to the other parties, and the rest of the suit, is, as has been before observed, supplemental only. There seems to be this difference between an original bill in the nature of a bill of revivor, and an original bill in the nature of a supple- mental bill. Upon the first, the benefit of the former proceedings is absolutely obtained, so that the pleadings in the first cause, and the depositions of witnesses, if any have been taken, may be used in the same manner, as if filed, or taken in the second cause ; and if any decree has been made in the first cause, the same decree shall be made in the second. But in the other case a new defence may be made; the pleadings and depositions cannot be used in the same manner, as 336 EQUITY PLEADINGS. [CH. Vin. case where, pending a suit against the trustees of a charity, some of the trustees die, and others are removed, and new trustees are if filed, or taken in the same cause ; and the decree, if any has been obtained, is in no otherwise of advantage, than as it may be an inducement to the court to make a similar decree." Mitf. Eq. PI. by Jeremy, 72, 73. Lord Eldon, in commenting on this passage, in Lloyd v. Johues, 9 Ves. 54, 55, used the follow- ing language : — " With respect to the passage, in which it is supposed there is some obscurity, I may say, upon the authority of Lord Eedesdale himself, it is not very easily to be removed ; nor capable of being removed by stating any judgment authorizing that passage. The proposition, that in general by an orig- inal bill in the nature of a supplemental bill, the benefit of the former proceed- ings may be obtained, is properly so restrained. It cannot be always ; for undoubtedly the equities, as against one tenant in tail and another, not apply- ing to the case of contract with the former, may have very difierent effects with reference to the interest derived out of that donvm, out of which both estates tail are derived. In the distinction stated between an original bill in the nature of a bill of revivor, and an original bill in the nature of a supplemental bill. Lord Eedesdale does not sa}', that in the latter the pleadings and depositions in the first cause cannot be used ; but that they cannot be used in the same man- ner. And the difficulty arises upon the negative proposition, without explain- ing what is the precise idea that belongs to it. These passages do not deter- mine the sense of the words, ' the proceedings upon the former bill.' You must endeavor to determine, to what stage the cause must have gone, to entitle you to say, there are proceedings, the advantage of which the second bill may draw to itself; as Lord Eedesdale expresses it. But the proposition so put compre- hends every stage of the cause, as furnishing the question, between the answer and the final decree obtained and executed. A general doctrine of this sort does not enable you to say, what the court is to do in every intermediate case between the first and the last stages of tlie cause, where the interest of the plain- tiff or defendant is absolutely gone, and where a person succeeding as second tenant in tail, or the first coming into existence, after the suit instituted, can obtain the benefit, and what benefit." He added : " It i' difficult to say, what the court has done, or ought to do, embracing the case of answer only ; the case of answer replied to, and witnesses examined de tene esse ; witnesses examined in the cause, and dying before the hearing ; an issue dh-ected ; a trial ordered and not had ; an application for a third new trial ; decree not obtained ; decree obtained, and not executed ; accounts taken, that the court may know what decree to make ; including also the questions, whether if the former bill con- tained a bad statement for this plaintiff, he would have been bound, and if not bound, whether he would have been affected by it. I apprehend a court of equity would, in many cases, not all, admit a plea of dismissal upon the merits to bar a remainder-man in tail of a new estate tail under the same gift, as well as a person claiming the same estate. I admit there is no judgment in point. But the justice of the court furnishes this as a principle ; that it is of absolute neces- sity, when once it is said the tenant in tail shall represent the inheritance, that those, who are entitled to the inheritance, shall in this court, have the benefit and the disadvantage of a proceeding by him. But it has been always thought com- § 350.] SUPPLEMENTAL BILLS. 337 appointed. In such a case, the new trustees must be naade parties by bill in the nature of a supplemental bill before further proceed- petent to add this qualification ; liberty to apply special circumstances, under which the estate is held, as a ground for saying, they ought not to have that benefit, or sufier that disadvantage. They have in general put in new answers. Consider the inconvenience. If the bill claims a charge upon the whole inheri- tance, and created by the author of all the gifts, comprising the inheritance, an estate for life, with remainders to the first and other sons in tail ; and the first tenant in tail in being, is made a party, and he dies without issue ; according to the constant practice, all the proceedings are had against the second son, as if he had been originally a party. And if I am not misled by the authority of Lord Redesdale, provoked, I may say, to accuracy upon this subject, those proceedings would be carried on by a bill, not stating the facts in the original bill, but stating that the original bill had represented the facts, as there represented. And prac- tice will sanction the declaration, that this form would sustain the suit against the second son, as a due mode of putting in issue the facts that had been put in issue against the eldest. Suppose the witnesses examined, not only in chief, but de bene esse ; and consider the inconvenience, if a court of justice says; the plaintiff need bring no one before the court but the first tenant in tail ; that the suit so instituted is perfect ; that first tenant in tail representing the whole inheritance, all subsequent to him, either for their benefit or otherwise ; supposing the merits to depend upon the testimony of one or two old, infirm individuals, whom the tenant in tail is desirous to examine de bene esse ; whose evidence would entitle him to a decree of dismissal : it would be the grossest injustice, if, by the accident of his death, the cause perhaps delayed, because containing such matter, the sub- sequent tenant in tail is to begin an original suit, in which he cannot have the benefit of those depositions ; and the enjoyment of the estate is to depend upon the accident ; as he was not permitted to be a party to a suit, in which he might have had the same evidence ; and it is not competent to him in any manner to protect his estate upon the truth and fact of the case. 1 cannot hold that a good judgment, which determines that one tenant in tail only need be a defendant ; but that the proceedings, had against him for all, shall not be for the benefit of all. The case of witnesses examined in chief, admits the same consideration. So, where tenant in tail files a bill, as a person representing the whole inheri- tance, and against an individual who states by his answer a case entitling the plaintiff to a decree. If he dies before the hearing, it is extraordinary to say, that if that tenant in tail, at whom the court looks, as supporting the whole inter- est in the inheritance, had lived, he should have been able to obtain a decree pro- tecting him and all ; yet, by the accident of his death, before the right of the others commenced, the benefit of that shall be lost. In the very ordinary case, where the bill is filed for the purpose of raising a charge against the inheritance, divided into estates tail, against a remote remainder-man ; those intermediate not being yet in esse ; if the cause has proceeded a certain length, an intermediate remainder-man coming in esse, you go on to state the former proceedings ; and that is held allegation sufficient to put the facts in issue with regard to that sort of de- fendant. But I admit the general opinion, that, if in such a case, witnesses have been examined against the former defendant, yet, upon the other's coming into EQ. PL. 29 338 EQUITY PLEADINGS. [CH. Vni' ings are had, or a decree rendered, otherwise they will not be bound thereby ; for they come in under the original founder, and not under tlie old trustees.^ existence, the plaintiff must examine again. It is so said. I doubt it ; and am of opinion, that, whenever the case shall arise, if the witnesses should die, this court, upon its own principles, may hold the subsequent defendant entitled to the benefit of that testimony. So, I should also say, this sort of principle, arising out of what the court does for the convenience of justice, must be applied both for and against the tenant in tail ; subject always to this, that where the tenant in tail takes a different interest, or rather a similar interest, not affected by the same circumstances, it is competent both for and against him, to bring forward the equities belonging to those different circumstances, as contradistinguishing his case. And that is the result of the passage in Lord Redesdale's book, which so stated, I think right, that the difference between the issue in tail, heir, or devisee, and a remainder-man claiming by force of a new limitation, is, that in the latter case the party is not bound by the shape of the defence." See also Cooper, Eq. PI. 80-82; Mitf. Eq. PI. by Jeremy, 98; Oldham v. Eboral, 1 Coop. Sel. Cas. . 27 ; Mechanics' Bank of Alexandria v. Setons, 1 Peters, R. 310. ^ Attorney-General v. Foster, 2 Hare, K. 80, 93. In this case, Mr. Vice-Chan- cellor Wigram said: "The argument in support of the exceptions was rested upon two distinct grounds : — First, it was said, that when the fact is once admit- ted, that the new trustees came into the places of those who had answered the original information, and to whom they succeeded, it follows, that they are as com- pletely bound by the proceedings in the cause, including the d.ecree, as if they had been originally parties. It was said, that this information, in fact, falls under that description of pleading, which Lord Kedesdale terms an original bill in the nature of a bill of revivor, and which he points out as the proper form of pro- ceeding, where the death or other cessation of the interest of a party is attended with such a transmission of that interest, that the person entitled may be the sub- ject of controversy, and the suit, therefore, is not permitted to be continued by a mere bill of .revivor, but in which no other question can be litigated. Pursuing the expressions of Lord Eedesdale on the same point, it is argued, that, as an original bill, in the nature of a bill of revivor, has so far the effect of a bill of re- vivor, that the new party, if he succeeds to the interest of a plaintiff, is entitled to the benefit of the former suit, and if he succeeds to the interest of a defendant, the plaintiff is entitled to the benefit of the former suit against him, as if the suit had been continued by bill of revivor, so, in this case, the relators are entitled to the benefit of the former proceedings, against these trustees, subject only to the question, whether they are, or are not, the substituted trustees. Secondly, it was said, that if the relation of the parties were not such as to entitle the Attorney- General to the benefit which the former proposition assumes, the supplemental information was so framed as to tender one issue only ; namely, whether the de- * fendants are bound or not bound by the former proceedings ; and that if, at the hearing of the cause, the court should be of opinion, that the defendants are not bound by the proceedings in the original cause, the present information must be dismissed, and the court could make no decree against the new trustees, upon the merits of the case made by the original information. I have considered both § 360, 351.] SUPPLEMENTAL BILLS. 339 § 361. The voluntary alienation of property, pending a suit, by any party to it, is not permitted to affect tlae rights of the other parties, if the suit proceeds without a disclos\ire of the fact, except these grounds, and, excluding the second, I think the first cannot be supported. I think the practice of the court required, that the new trustees should have been l»ought' before the court before the hearing of the original and supplemental informations, in which the decree was ultimately drawn up. At that time, they were not less the representatives and protectors of the charity, than any other of the trustees ; and the charity was not, in their absence, properly represented at the hearing of the cause. The position of the new trustees was likened at the bar" to that of a purchaser pendeMe lite ; and I was referred to the case of the Bishop of Winchester v. Paine, 11 Ves. 194. I do not admit the analogy. I think the new trustees are not to be considered as purchasers, pendente lite, under the other trustees ; but that they came in under the founder, and were necessary parties to the decree. The information itself so treats the case, and I think cor- rectly. If I am right in this view of the question, it will follow that the new trustees must, at the time of answering this information, be in the same position as if the present information had been filed against them, and they had answered it before the original and first supplemental information were heard. In that case, it is clear, that they might have made any defence, which the justice of the case required, subject to a question of costs if they had needlessly repeated that, which was contained in the answers of the former trustees. My proposition is, not that the new trustees would necessarily be unaffected by the answers of the former trustees, or by the proceedings in this cause anterior to their appointment, but that they were not so bound as to be absolutely precluded from making a proper case against the decree prayed against them, and from being heard to argue against its correctness and propriety. The assignees of a defendant, who becomes bankrupt after answer, may, in some sense, be affected by his answer ; but they are not necessarily precluded, by their relation to the bankrupt, from stating their own case in their answer, against the relief prayed by the bill. Extreme cases were put for the purpose of showing the inconvenience which possibly might re- sult from repeated changes of trustees. But those extreme cases (which, in fact, rarely if ever occur,) do not furnish the rule for cases like the present, which would have been subject to no difiiculty whatever, if that, which I consider the regular practice of the court, had been attended to. Upon the second question, ■which is one of strict pleading, I have certainly felt difiiculty. But adverting to what Lord Kedesdale says, as to the frame of those original bills, which are filed for the purpose of having the benefit of proceedings in existing suits against per- sons not parties to those proceedings, and to what Lord Eldon both said and de- termined in Lloyd v. Johnes, 9 Ves. 37, respecting bills of that nature, (notwith- standing the intimation of his opinion as to what the more convenient rule of pleading would be,) I think that the facts, which constitute the case made by the original information are so far put in issue by the present information, that the court might, at the hearing of this information, go into the case at large against the new trustees ; and would not, at that hearing, be confined to the narrow issue, which the argument for the Attorney-General assumes." 840 EQUITY PLEADINGS. [CH. VIII. SO far as the alienation may disable the party from performing the decree of the court.'^ Thus, if pending a suit by a mortgagee to foreclose the equity of redemption, the mortgagor makes a second mortgage, or assigns the equity of redemption, an absolute decree of foreclosure against the mortgagor will bind the second mort- gagee, or assignee of the equity of redemption, who can only have the benefit of a title so gained by filing a bill for that purpose.^ But upon a bill by a mortgagor to redeem, if the mortgagee as- signs, pendente lite, the assignee must be brought before the court by the mortgagor, who cannot otherwise have a reconveyance of the mortgaged property.^ The bill, which is necessary in the latter case, is merely supplementary ; but in the former case, the bill must be an original bill, in the nature of a cross bill, to redeem the mort- gaged property.* If the party aliening be the plaintiif in the suit, and the alienation does not extend to his whole interest, he may also bring the alienee before the court by a bill, which, although in the nature of an original bill against the alienee, will be supple- mental against the parties to the original suit; and they will be necessary parties to the supplemental suit, only so far as their in- terests may be affected by the alienation.^ Generally, in cases of d\iQn2ii\on, pendente lite,\h& alienee is bound by the proceedings in the suit after the alienation, and before tlie alienee becomes a party to it ; and depositions of witnesses, taken after the alienation, but before the alienee became a "party to the suit, may be used by the other parties against the alienee, as they might have been used against the party, under whom he claims.^ § 351 a. The same rule would prevail, where a vendee should file a bill for a specific performance of a contract for the purchase of land against the vendor, and pending the suit he (the vendee) should sell to one or more sub-purchasers. In such a case, the sub-purchasers need not be made parties ; and they would be bound ' Mitf. Eq. PI. by Jeremy, 73. See Ante, §156, 342, note, 349. The distinc- tion between cases of voluntary alienation, pendente Ike, and involuntary alien- ation by operation of law, as insolvency or bankruptcy, is fully discussed in Sedg- wick V. Cleaveland, 7 Paige, R. 290-292. " Mitf. Eq. PI. by Jeremy, 73. ' Ibid. • Ibid. 5 Mitf Eq. PL by Jeremy, 73, 74, and cases there cited ; Cooper, Eq. PI. 77 ; Ante, § 156, 340, 342, 343, 349 ; Post, § 351 a. See Turner v. Wight, 4 Beavan, R. 40 ; Powell v. Wright, 7 Beavan, R. 444. ^ Ibid.; Ante, § 156, 242, 340. § 351 - 353.] SUPPLEMENTAL BILLS. 341 by the decree in the suit. Indeed, they wonld have a right to insist, that their immediate vendor should proceed in the original suit for their benefit and at their charge, upon the ground, that by the sub- sale, he had in eifect become their trustee of all the rights under the original contract.^ But if the original vendee had entered into a contract with the sub-purchasers, not that he, but that the original vendor should convey to them, the sub-purchasers, if they pur- chased before any suit brought, might then have been necessary and proper parties to a suit for a specific performance against the original vendor by the original vendee.^ § 351 b. A bill, iu the nature of a supplemental bill, may also be required, not only where new interests arise, either before or after a decree, but also where relief of a different kind, or upon a different principle, is required from that in the original decree.^ § 352. A supplemental bill, or an original bill in the nature of a supplemental bill, is not in all cases either proper, or necessary, merely because new events have occurred since the original bill. But the facts must be material to the original cause, or be such, as could not, in that stage of the original cause, be brought into it without such a bill.* For, where there is no alteration in the interest of the parties, nor any particular circumstance requiring further discovery; but where a fact only has occurred, which might be proved under the proceedings in the original bill, as in taking an account before the master under the prayer of the original bill, and the relief is not varied by the supplemental matter, but the plaintiff may have the relief prayed for by such supplemental bill under the original bill, the supplemental bill is improper.^ § 353. A bill for this purpose must state the original bill, the proceedings upon it, the event which has determined the interest of the party, by or against whom the former bill was exhibited, and the manner in which the property has vested in the person who has become entitled. It must then show the ground upon ' Wood V. Griffith, 1 Swanst. R. 55, 56 ; 2 Sugden on Vendors, ch. 8, § 2, art. 39, p. 45, 46, 10th edit. 1839 ; v. Walford, 4 Euss. E. 372 ; 1 Daniell, Ch. Pract. 375 ; 2 Story, on Eq. Jurisp. § 1050, 1051. 2 V. Walford, 4 Euss. E. 372 ; 1 Daniell, Ch. Pract. 375. ' Hodson V. Ball, 11 Sim. E. 456, 463; S. C. 1 Phillips, Ch. E. 177; Ante, § 338 ; Post, § 422. See Taylor v. Taylor, 1 Mac. & Gord. 405. * Ante, §332, 333, 335-337. * Adams v. Dowding, 2 Madd. E. 55, See Gilb. For. Eom. 109. And see Eoberts V. Eoberts, 16 Simons, 367. 29* 342 EQUITY PLEADINGS. [CH. VIII. which the court ought to grant the benefit of the former suit to or against the person who has become so entitled ; and it must pray the decree of the court, adapted to the case of the plaintiff in the new bill.i This bill, although partaking of the nature of a sup- plemental bill, is not an addition to the original bill, but another original bill, which, in its consequences, may draw to itself the ad- vantage of the proceedings on the former bill.^ § 354. Thirdly ; a bill of revivor, strictly so called. This is the usual mode of reviving and continuing the proceedings, when- ever there is an abatement of the suit before its final consumma- tion. An abatement, in the sense of the common law, is an en- tire overthrow or destruction of the suit, so that it is quashed and ended.^ But in the sense of courts of equity, an abatement sig- nifies only a present suspension of all proceedings in the suit, from the want of proper parties capable of proceeding therein. At the common law, a suit, when abated, is absolutely dead. But, in equity, a suit when abated, is (if such an expression be allowable) merely in a state of suspended animation ; and it may be revived.* The death, or marriage, of one of the original parties to the suit, is the most common, if not the sole cause, of the abatement of a suit in equity. As the interest of a plaintiff usually extends to the whole suit, therefore, in general, upon the death of a plaintiff, or the marriage of a female plaintiff, all proceedings become abated.^ Upon the death of a defendant, likewise, all proceedings become abated as to that defendant.® But, upon the marriage of ' Mitf. Eq. PI. by Jeremy, 99. ^ Mitf. Eq. PI. by Jeremy, 98, 99, and cases there cited ; Phelps v. Sproule, 4 Sim. K. 318 ; Vigers v. Lord Audley, 9 Sim. R. 75. The following is the com- mon prayer of an original bill, in the nature of a supplemental bill, in the case of the bankruptcy of the defendant pending the suit. " And that the plaintiffs may have the benefit of the said suit and proceedings against the said D, (the as- signee,) and may have the same relief against him, that he might have had against the said B, (the bankrupt,) in case he had not become bankrupt, and for further and other relief" Van Heyth. Eq. Drafts. 339. ^ 3 Black. Comm. 168. ' Ante, § 328, 329, 349 and note. ' Mitf Eq. PI. by Jeremy, 57. » Mitf. Eq. PI. by Jeremy, 57, 58 ; Cooper, Eq. PI. 63 ; Gilb. For. Rom. 175- 178. It is said, that if a suit abates by the death of the defendant, the plaintiff may bring a new original suit, or a bill of revivor at his election ; for he may be able to make a better case than by his first bill. Wyatt, Pr. Reg. 91 ; Spencer v. Wray, 1 Vern. 463 ; Anon. 3 Atk. 485, 486 ; NicoU v. Roosevelt, 3 John. Ch. E. § 353 - 356.] BILLS OF kevivor. 34:3 a female defendant, the proceedings do not abate, although her husband ought to be named in the subsequent proceedings.-' § 354 a. A bill of revivor, properly so called, lies only by or against the persons, who are the proper representatives of the de- ceased party. If the suit respects the personal assets only of the deceased party, his executor or administrator is the proper party, by or against whom the revivor is to be. If the suit respects the real estate of the deceased party, his heir or heirs are the proper parties to the bill of revivor.^ § 355. It is highly probable, that the bill of revivor was bor- rowed from the Civil Law, or the Canon Law. If the party died pending the suit, by the Civil Law and the Canon Law the other party had a Citatio ad reassumendam causani. But then it was necessary to be made to appear to the judge by the proof, that the party was dead ; for it was not enough for the judge to know it in his private capacity ; but it was necessary, that it should be proved judicially to him. This process lay only against the heir of the defendant, and for the heir of the plaintiff, and so from heir to heir, usque ad conclusionem, in causd, and even after sentence, to have execution of the sentence pronounced.^ We shall see, pres- ently, how close the analogy is between the subpoena to revive, and the Citatio ad reassumendam causam. § 356. The death of one of the parties to a suit does not, in all cases, necessarily produce such an abatement of it, as to suspend all further proceedings ; but only when the interest of such party, or that which he represents, survives.* If the interest of a party dying so determines, that it can no longer affect the suit, and no person becomes entitled thereupon to the same interest, (which happens in the case of a tenant for life, or a person having a tem- porary or contingent interest, or an interest defeasible upon a con- tingency,) the suit does not so abate, as to require any proceeding to warrant the prosecution of the suit against the remaining par- 60. Where a defendant died after being served with a copy of the bill, and with- out having appeared, it weis held, that his personal representative should be brought before the court by an original bill, and not by a bill of revivor. Hardy V. Hull, 14 Simons, K. 21 ; Foster v. Foster, 16 Simons, 637. 1 Mitf Eq. PI. by Jeremy, 58 ; Cooper, Eq. PI. 64 ; Gilb. For. Eom. 174 - 177 ; Wyatt, Pr. Reg. 90-92. " Post, § 364 ; Mitf. Eq. PL by Jeremy, 69. » GUb. For. Rom. 172. * Cave V. Cork, 2 Younge & Coll. New R. 130, 133. 344 EQUITY PLEADINGS. [CH. VIII. ties.i But, if the party so dying be the only plaintiff, or the only defendant, there will necessarily be an end of the suit, if there is no subject of litigation remaining.^ § 357. If the whole interest of a party dying survives to an- other party, so that no claim can be made by or against the repre- sentatives of the party dying ; as, if a bill is filed by or against trustees or executors, and one dies, not having possessed any of the property in question, or done any act relating to it, which may be questioned in the suit ;^ or, if a bill is filed by or against hus- band and wife, in right of the wife, and the husband dies under circumstances which admit of no demand by or against his repre- sentatives, the proceedings do not abate.* So, if a surviving party can sustain the suit, as in the case of several creditors, plaintiffs on behalf of themselves and other creditors, the proceedings do not abate.^ For the persons, remaining before the court in all these cases, either have in them the whole interest in the matter in litigation, or at least are competent to call upon the court for its decree.^ § 358. Upon the same principle, if two joint tenants exhibit their bill, and one dies, this will not abate the suit as' to the other ; for the whole interest belongs to the survivor.'^ But it is otherwise in the case of tenants in common ; for if one of them dies, the suit abates ; because his right descends to his representatives, who may revive.^ And although the proposition slated in our law books is true, that where a tenant in common dies, his representa- tive may revive without the other ; yet it is true only in a quaUfied sense.3 For where two tenants in common filed their bill, and one died, and a bill of revivor was brought by his representative against the same defendants, without joining the surviving tenant in com- • Mitf. Eq. PI. by Jeremy, 58, and cases there cited; Cooper, Eq. PI. 65 ; Gilb. For. Rom. 176. " Ibid. " Masters v. Barnes, 7 Jurist, p. 1167, 1168, (1843.) See Buchanan v. Malins, 11 Beavan, 52. * Mitf. Eq. PI. by Jeremy, 58, 69. 'Ibid. ' Mitf. Eq. PI. by Jeremy, 58, 59, and cases there cited ; Fallowes v. WiUiam- son, 11 Ves. 306, 313. ' Cooper, Eq. PL 65 ; Boddy v. Kent, 1 Meriv. K. 364 ; Wright v. Dorset, 3 Ch. Rep. 66 ; Anon. 2 Freem. 6. ' Ibid. ' Cooper, Eq. PI. 65, and cases cited. § 356 - 358.] BILLS OF revivor. 345 mon, either as a co-plaiutiff, or as a defendant, in tlie bill of re- vivor, it was decided, after a great deal of discussion, that although the representative of the deceased tenant in common might revive without making the other a co-plaintiff, yet that, if he did so, he must make him a defendant.^ ' Cooper, Eq. PI. 65, 66 ; Boddy v. Kent, 1 Meriv. R. 364 ;■ Fallowes v. William- son, 11 Ves. 306, 313. The reasoning of Lord Eldon on this subject, in Fal- lowes V. Williamson, 11 Ves. 306, 309, 310, is so full and important in its expla- nations of general principles, that, although long, it is thought best to insert it at large in this place. " If, for want of authority," says he, " I am to reason upon general principles, where joint tenants file a bill, and by the death of one the interest survives, without doubt there is no abatement ; but the survivor may go on. But where the interest is that of tenants in common, there is prodigious difficulty and \ast injustice in deciding, that if one dies, the representatives of that one may, without making their companion a co-plaintiff, revive. The first difficulty is of this sort. The plaintiffs in the bill of revivor suggest upon the bill that they are the representatives, and that they stand in the place of the orig- inal plaintiff. The defendant upon this argument either is, or is not, at liberty to answer. He certainly may show cause against the revivor in some way. Sup- pose he does not, and the representatives revive. If the co-plaintiff with the original plaintiff, deceased, does not admit that those persons are the representa- tives, what is there in the state of the record, so put, authorizing the court to say, the suit is revived, in that stage, until the surviving tenant in common has done some act acknowledging the relation, in respect of which he and the alleged rep- resentative agree, that there is a right to revive ? The surviving tenant in com- mon must have some opportunity of doing that. He may state, that he is filing a supplemental bill to bring the real representative before the court. If he is made a co-plaintiff, by joining, he admits the character of the representative. But sup- pose he knows the other is not the heir, that he is obliged to get on with his own suit, and knows another person to be the heir, without whom he cannot get on, what is there upon the record, where the bill of revivor does not make the sur- vivor a co-plaintiff, to show, that he admits the character of the plaintiff reviving. Beyond that, there is another difficulty, and a very mischievous consequence, in holding, that the representatives may revive without the original co-plaintiff, even if he does admit that they are the representatives. Circumstances may have taken place, from which the survivor may know, it would be gross injustice for him to pursue the suit ; and that the representatives of the deceased tenant in common know that. Suppose they revive, and instead of a plea or demurrer the defendants state the objection by answer, and insist upon it, as entitling them to the same benefit as if it had been by plea ; the cause might go to a hearing, when revived, in the absence of the original co-plaintiff; and he may be engaged, and without his consent, in further litigation, where he thinks it unrighteous; and if he had been sole plaintiff, might have desired to have his bill dismissed with costs. In what mode then is he to come, and say he will have nothing more to do with the suit ; for, there must be some form, in which he shall be at liberty to do so. On the one hand, there is great hazard of injustice, whether the alleged repre- 346 EQUITY PLEADINGS. [CH. VIII. § 359. If there are several plaintiffs, and the defendant dies, some of them may proceed to revive without the others, if they refuse ; for the obstinacy of some of the parties shall not hinder the rest from asserting their own interest. But in such cases the original plaintiffs, who refuse to join, should be made defendants in the bill of, revivor .^ § 360. If a man marries an administratrix, and a decree is ob- tained against him and his wife for a demand out of the assets, and the wife dies before the decree is executed, the suit is abated ; and the plaintiff must revive it against the administratrix of the wife, before any further proceedings can be had in the cause against the husband ; for the assets of the wife are primarily lia- ble to satisfy the decree.^ § 361. If, upon the death of the husband of a female plaintiff, suing in her right, the widow does not choose to proceed in' the cause, the bill is considered as abated, and she is not liable to the sentatives are so or not ; and if it was to be considered originally, there is vast weight in the doubt that has been referred to ; and upon general principles, I should be disposed to hold, that the revivor ought to be by both ; for it is true, as has been stated, that upon a revivor by scire facias, all must join. It would be strange upon a scire facias to say, the proceedings were to be put in the same plight, not only as to the persons suing it out, and against whom it was sued out, but against persons to whom it was not addressed, and having no knowledge of it. Next, if the representatives are to file their bill of revivor, and that is only as to the interest of the deceased, though that bill states the original cause as the cause of both, must not the two causes be joined, so that the court can know in which you are going on ? It would be novel, and against the principle of pleading in equity, that where the interest is entire, as to the subject of the suit, though divided in enjoyment, and the defendant might object for want of parties, that the bill of the representatives should revive as to that suit, the interest of the other plaintiff' not being abated ; and, therefore, the two causes are joined, though the survivor may have no inclination to go on. What is revived ? The suit as to the interest of the deceased. But then it must, in the contemplation of the court, be a proceeding at the suit of the survivor, as his interest is not abated ; and at the suit of the representative, standing in the place of the deceased. The consequence is, all subsequent process must be at the suit of both, and in a cause, entitled in the names of both." • Gilb. For. Rom. 176 ; Wyatt, Pr. Reg. 90, 94. ^ Cooper, Eq. PI. 67, 76, 210 ; Jackson v. Rawlins, 2 Vern. R. 194, and Raith- by's note (2) ; Bachelor v. Bean, 2 Vern. R. 61 ; Sanderson v. Crouch, 1 vern. R. pt. 2, 118. It would seem, from these cases, that the husband was not liable, except for the assets, of which he was possessed, or which came to his or the wife's hands, after the intermarriage. See also Norton v. Sprigg, 1 "Vern. R. 309. §359-361.] BILLS OF EEVIVOK. 347 costs.^ If she thinks proper to proceed in the cause, she may do so without a bill of revivor ; for she alone has the whole interest, and the husband was a party in her right, and therefore the whole advantage of the proceedings survives to her ; so that if any judg- ment has been obtained, even for costs, she will be entitled to the benefit of it.^ But if she takes any step in the suit after her hus- band's death, she makes herself liable to the costs from the be- ginning.3 If a female plaintiff marries, pending a suit, and afterwards, before revivor, her husband dies, a bill of revivor becomes unnecessary, her incapacity to prosecute the suit being ^ Mitf. Eq. PI. by Jeremy, 59, 60, and cases there cited ; Gilb. For. Rom. 175, 176 ; Wyatt. Pr. Keg. 91, 92 ; Ante, § 61. Upon this subject, Mr. Cooper has commented as follows : " In the case of husband and wife suing for a demand in right of the wife, though if the husband dies, it is no abatement, as herein be- fore mentioned, yet if they have examined witnesses, and afterwards the husband dies, the wife is not bound, unless she chooses; and she may file a new bill and examine the same witnesses over again, as if no examination had ever taken place. But if the bill is brought against the husband and wife, where the wife's property is concerned, as if she is an executrix, and the defendant's answer and witnesses are examined, and publication passes, and the husband afterwards dies, it has been decided, that the wife shall be bound by the answer and depositions. Upon this, I cannot help observing, that there seems an inconsistency in the prin- ciple, that the wife surviving should be bound by the answer and depositions, when she was defendant with her husband, but not by their bill and depositions, when they stood in the character of plaintiff's. In the last-mentioned case, the court takes a distinction, that, although the wife shall be bound by the answer and depositions in a matter of personalty, yet in case of the wife's inheritance, it might be otherwise. But, in another case, the master of the rolls seems to have allowed a husband's answer, whereby he had confessed a settlement, to be read as evidence against the wife, though it was insisted, that, it being the case of the wife's inheritance, she was not bound by such evidence. And there seems an anomaly in another rule of pleading relative to the above-mentioned ■case of husband and wife, which is, that although where they exhibit their bill for a demand in her right, and the husband dies, thp wife, if she thinks proper, may proceed in the cause without a bill of revivor, she alone having the whole interest, and the whole advantage of the proceedings surviving to her ; so much so, that if any judgment has been obtained, even for costs, she will be entitled to the benefit of it ; yet, if she does not choose to proceed in the cause, the bill is considered as abated, and she is not liable to the costs. And the case is the same, if a female plaintiff marries, pending a suit, and afterwards, before revivor, her husband dies ; for her incapacity to prosecute the suit is removed ; but the subsequent proceedings are in the name and description, which she has acquired by the marriage." Cooper, Eq. PI. 66, 67, and cases there cited. See Grant V. Van Schoonhoven, 9 Paige, E. 255 ; Alston v. Jones, 3 Barb. Ch. R. 401. 2 Mitf Eq. PI. by Jeremy, 59, 60. » Ibid. 348 EQUITY PLEADINGS. [CH. VHI. removed. 1 But the subsequent proceedings ought to be in the name and with the description, which she has acquired by the marriage.2 [j^nd if the wife dies, pending a suit by herself and husband for an account of the rents of her estate, her personal representatives are not necessary parties to a bill of revivor.^] § 362. For the like reason, if the plaintiff, in a bill of inter- pleader, should die after a decree that the defendants should in- terplead, there will be no abatement of the suit ; for by such a decree the suit is terminated as to the plaintiff, although the liti- gation may still continue between the defendants under the de- cree of interpleader ; and in that event the cause may still pro- ceed, without any revivor against the representatives of the plaintiff.* § 363. Whenever there is an original bill and a cross bill thereto, if an abatement talces place, there must generally be a bill of revivor in each cause. But if the bills regard an account, and there is a decree for an account, the two causes become thereby so consolidated, that one bill of revivor, praying for a revivor of the whole, will revive both causes.^ § 364. Wherever a suit abates by death, and the Interest of the person, whose death has caused the abatement, is transmitted to that representative, which the law gives or ascertains, as an heir at law, or an executor or administrator, so that the title cannot be disputed, at least in the court of Chancery, but the person, in whom the title is vested, is Slone to be ascertained, the suit may be continued by a bill of revivor merely.® If a suit abates by the marriage of a female plaintiff, and no act is done to affect the rights of the party, but the marriage, no title can be disputed. The per- son of tlie husband is the sole fact to be ascertained ; and, there- fore, the suit may be continued in this case, likewise, by bill of revivor merely.' 1 Mitf. Eq. PI. by Jeremy, 59, 60. ' Ibid. ' Jones V. Skipworth, 9 Beavan, 237. ' Mitf. Eq. PI. by Jeremy, 60 ; Ante, § 297 a. » Cooper Eq. PL 64 ; Wyatt, Pr. Reg. 88 ; Hinde, Ch. Pract. 51 ; Gilb. For. Bom. 174. • Mitf. Eq. PI. by Jeremy, 69 ; Cooper, Eq. PI. 63, 64. ' Mitf. Eq. PI. by Jeremy, 69, and cases there cited; Gilb. For. Rom. 175, 177, 189; Wyatt, Pr. Reg. 90; Douglas v. Sherman, 2 Paige^ R. 358; Phelps v. Sproule, 4 Sim. 318. §361-366.] BILLS OF REVIVOR. 349 § 365. In the case of a bill brought by a creditor on behalf of himself and all other creditors, if he dies, the suit may be revived by his personal representative. If the latter does not choose to revive it, then any other creditor, at least any one who has proved his debt under a decree before the master, may, by a supplemental bill, continue the cause, and proceed therein for the benefit of all the creditors.! [And this is on the ground that the creditor, so reviving, was really one of the original plaintiffs ; but where an administration suit abates by the marriage of a female plaintiff, a pecuniary legatee, not a party to the original suit, but to whom the master had committed the farther prosecution of the suit be- fore such abatement, cannot afterwards revive it by a bill in her own name, although the original plaintiff refuse to revive ; for no persons, except the parties to the original suit, or their heirs or representatives, can revive.^] § 366. When a suit became abated after a decree signed and enrolled, it was anciently the practice to revive the decree by a subpoena in the nature of a scire facias, upon the return of which, the party, to whom it was directed, might show cause against the reviving of the decree, by insisting that he was not bound by the decree ; or that for some other reason it ought not to be enforced against him ; or that the person suing the subpoena, was not enti- tled to the benefit of the decree.^ If the opinion of the court was in his favor, he was dismissed with costs. If it was against him, or if he did not oppose the reviving of the decree, interrogatories were exhibited for his examination, touching any matter necessary to the proceedings.* If he opposed the reviving of the decree on the ground of facts, which were disputed, he was also to be exam- ined upon interrogatories, to which he might answer or plead ; and, issue being joined, and witnesses examined, the matter was finally heard and determined by the court.^ But if there had been any proceedings, subsequent to the decree, this process was inef- fectual, as it revived the decree only, and the subsequent proceed- ^ Mitf. Eq. PI. by Jeremy, 79, and note (() ; Dixon u. Wyatt, 4 Madd. R. 393 ; Burney v. Morgan, 1 Sim. & Stu. 358 ; Houlditch v. Donnegal, 1 Sim. & Stu. E. 479 ; Daves v. Williams, 1 Sim. R. 5. It is often said, that the creditor in such a case has a right to revive. But quaere, whether the suit in such a case is techni- cally abated ? See 1 Eq. Abridg. 2, 3 ; Cooper, Eq. PI. 65. " Williams v. Chard, 7 Eng. Law & Eq. R. 289. ^ Mitf. Eq. PI. by Jeremy, 69, 70, and cases there cited ; Gilb. For. Rom. 177. < Ibid. ^ Ibid. EQ. PL. 30 350 EQUITY PLEADINGS. [CH. YIH. incs could not be revived except by bill. The enrolment of de- crees being now much disused, it is become the practice to revive in all cases, indiscriminately, by bill.^ § 367. A suit, which has become entirely abated, may be revived as to part only of the matter in litigation, or as to a part by one bill, and as to the other part by another. Thus, if the rights of a plaintiff in a suit upon his death become vested, a part in his real, and a part in his personal representatives, the real representative may revive the suit, so far as concerns his title, and the personal representative, so far as his demand extends.^ § 368. Therefore, where the plaintiif's intestate had obtained a decree against the defendant for payment of a sum of money, and also for a conveyance of land and a delivery of deeds ; but before anything was done upon it, he died intestate ; and the plaintiff, as his personal representative, having revived the decree, the defendant objected, because the heir was not made a party, and a decree could not be revived in parts. But the court held, that it was like a judgment at law in waste, where there may be two revivors, and they ordered the decree to be revived as to the personalty.^ § 369. When there are several plaintiffs, or several defendants, all having an interest, which survives, the death of any one of them makes an abatement only as to himself, and the suit is con- tinued as to the rest who are living.* But if anything is required to be done by or against the interest of the party, who is dead, his proper representative must be brought before the court by a bill of revivor.^ If some of the plaintiffs, entitled to a bill of revivor, refuse to join in it, they may be made parties defend- ant.^ § 370. If a decree is obtained against an executor for the pay- ment of a debt of his testator, and of costs out of the assets, and the executor dies, and his representative does not become the rep- resentative of the testator, the suit may be revived against the 1 Mitf. Eq. PI. by Jeremy, 69, 70, and cases there cited; Gilb. For. Eom. 177. ' Mitf. Eq. PI. by Jeremy, 79, 80 ; Gilb. For. Rom. 174. ' Cooper, Eq. PI. 71, and cases there cited ; Ferrers v. Cherry, 1 Eq. Abridg. 4 pi. 11. * Ante, § 364. ' Ibid. « Finch V. Winehelsea, 1 Eq. Abridg. 2 pi. 7 ; NicoU v. Roosevelt, 3 John. Oh. R. 60 ; Ante, § 359. §366 -371 O.J BILLS OF REVIVOR. 351 representative of the testator, and the assets may be pursued in his hands, without reviving against the representative of the orig- inal defendant.^ § 370 a. Where a bill is filed by a plaintiff to revive a suit after a decree, and to prosecute the decree, it is not competent for the defendant in his answer to resist the revival by stating matter which existed before the decree, or which has arisen since ; and such matter, if stated, will be treated as impertinent.^ The rea- son is, that if the facts existed before the decree, and the proper time for making them a part of the defence has been permitted to pass by, the omission cannot be supplied in this manner ; and if new matter has arisen since the decree, varying the situation of the parties, other means exist for bringing it forward. The right of a party to prosecute a decree, and to do what is neces- sary for that purpose, cannot depend upon the merits of the decree.^ § 371. It is a general rule, that no suit shall be revived for costs merely, unless such costs are taxed, and report thereof made in the lifetime of the party.* But if costs are to be paid out of an estate, the suit may be revived for them. And the case is still stronger, if a bill of revivor is brought for a duty and costs, although the costs are not taxed in the defendant's lifetime.^ § 371 a. A bill of revivor cannot properly be brought upon a bill of discovery merely, after the answer is put in and the discov- ery is made ; for in such a case the entire object of the bill has been obtained ; and the plaintiff can have no motive for reviving it ; and the other party has no interest in reviving it.^ ' Mitf. Eq. PI. by Jeremy, 78 ; Johnson v. Peck, 2 Ves. 465. ' Devaynes v. Morris, 1 Mylne & Craig, 213, 225 ; Post, § 376. » Ibid.; Ante, § 832, 333, and notes; Post, § 3 76, 423. * Cooper, Eq. PL 68 ; Gilb. For. Rom. 181 ; Vyatt, Pr. Keg. 93 ; Jenour v. Jenour, 10 Ves. 572. But see Morgan v. Scudamore, 2 Ves. jr. 315, 316; S. C. 3 Ves. 195 ; Glenham v. Stutwell, 1 Dick. 14 ; Dodson v. Oliver, Bunb. E. 160 ; Blower v. Morrets, 3 Atk. 772 ; Kemp v. Mackrell, 3 Atk. 812 ; Johnson v. Peck, 2 Ver. 465. But see Travis v. Waters, 1 John. Ch. R. 85. ' Ibid. [* The English courts of equity decline to hear a cause, where the parties have compromised all but the costs. MchoUs v. Elford, 6 Jur. N. S. 264.] ' Horsburg v. Baker, 1 Peters, R. 232, 236. After a discovery is obtained upon such a bill, it is not proper to dismiss the bill ; but the court should pass an order, that no further proceedings be had in the cause. Ibid. 352 EQUITY PLEADINGS. [CH. Vni. § 372. Hitherto we have been considering cases where the plain- tiff may reyive. In some cases a defendant, after a decree, is per- mitted to file a bill of revivor, if the plaintiff, or those standing in his right, neglect to do it ; for then the rights of the parties are ascertained ; and the plaintiff and the defendant are equally en- titled to the benefit of the decree, and equally have a right to prosecute it.i But this rule must be taken with some qualification. Lord Hardwicke has expressly laid it down, that a defendant can revive only in one instance, and that is, after a decree to account ; for in that case both parties are actors.^ But the principle has been, by subsequent decisions, extended to every case, in which the defendant can derive a benefit from the further proceedings.^ Thus, where the assignees of a bankrupt filed a bill against a per- son claiming as a mortgagee, and the title of the bankrupt was under a fine by a tenant in tail, as to whose legitimacy a question was made, and a decree was made, directing an issue, in which issue the verdict was against the legitimacy ; and then the mort- gagee died, and his representatives filed a bill of revivor ; although it was objected, on the behalf of the assignees, that a defendant cannot revive, except after a decree for an account ; yet the revi- vor was permitted.* § 373. Upon the same principle, there would seem to be no ob- jection to a defendant's reviving the suit after a decree in the case of a bill for the specific performance of an agreement, or for a partition, or for a trustee to convey the legal estate. But the de- fendant must, in all such casSs, have an interest in the further prosecution of the suit. And, therefore, where his only object is to dissolve an injunction and proceed at law, the court will not permit him to revive.^ However, in a case where the plaintiff, after a decree to redeem certain mortgaged premises, filed his bill of revivor, but neglected to revive, on the time for the defendant's answering being out, the defendant was allowed to revive, and to carry on the decree under the plaintiff's bill.^ 1 Cooper, Eq. PI. 68. ^ Cooper, Eq. PI. 68 ; Anon. 3 Atk. 692 ; Devaynes v. Morris, 1 Mylne^ & Craig, R. 213 ; Mitf. Eq. PI. by Jeremy, 4th edit. p. 79. ' Cooper, Eq. PI. 68 ; Mitf. Eq. PI. by Jeremy, 4th edit. p. 79, and note (}). * Cooper, Eq. PI. 68 ; Williams v. Cooke, 10 Ves. 406. ^ Cooper, Eq. PI. 69. ' Cooper, Eq. PI. 68, 69, and the cases there cited ; Mitf. Eq. PI, by Jeremy, 79 ; 1 Eq; Abridg. 2, 3 ; Wyatt, Pr. Reg. 92. §372-374.] BILLS OF REVIVOR. * 353 § 374. In regard to the frame of a bill of revivor, it must state the original bill, or rather who were the plaintiffs and defendants to it, and what its prayer or object was, and the several proceed- ings thereon, and the abatement.^ It ought also to show the title of the plaintiff to revive the suit.^ It is, also, necessary to state so much new matter, and no more, as is requisite to show how the plaintiff becomes entitled to revive, and to charge that the cause ought to be revived, and to stand in the same condition, with re- spect to the parties to the original as it was at the time when the abatement happened ; and it must pray, that the suit may be re- vived accordingly.^ It may likewise be necessary in many cases, to pray, that the defendant may answer the bill of revivor ; as in the case of an admission of assets, or an account of the personal estate being requisite from the representative of a deceased party.* In this latter case, if the defendant does admit assets, the cause may proceed against him upon an order of revivor merely.^ But if he does not make that admission, the cause must be heard for the purpose of obtaining the necessary accounts of the estate of the deceased party, to answer the demands made against it by the suit.^ And the prayer of the bill, therefore, in such a case usually is, not only, that the suit may be revived, but also, that in case the defendant shall not admit assets to answer the purposes of the suit, such accounts may be taken. And so far, the bill is in the nature of an original bill.^ Upon a bill of revivor, the sole questions be- ^ The 49th Order of the English Orders of 1841, provides, "That it shall not be necessary in any bill of revivor, or supplemental bill, to set forth any of the statements in the pleadings in the original suit, unless the special circumstances of the case may require it." The Supreme Court of the United States have adopted the same Rule. See Equity Rules of January Term, 1842, Rule 47, 1 Howard, E. Intro, p. 56 ; 17 Peters, Appendix, p. 69. But this Rule does not dispense with the necessity of stating, in a bill of revivor, so much of the pleadings in the original suit as is sufficient to show the title of the plaintiff, as against the defend- ant, to revive the suit. Griffith v. Ricketts, 3 Hare, R. 476. ' Phelps V. Sproule, 4 Sim. R. 318 ; Vigers v. Lord Audley, 9 Sim. R. 72, 75 ; Mitf. Eq. PI. by Jeremy, 76 ; Cooper, Eq. PL 70. « Cooper, Eq. PI. 70 ; Comyns, Rep. 570 ; Mitf. Eq. PI. by Jeremy, 76. * Cooper, Eq. PI. 70 ; Wyatt, Pr. Reg. 91 ; Mitf Eq. PI. by Jeremy, 76. ' Ibid. ' Cooper, Eq. PI. 70; Mitf. Eq. PI. by Jeremy, 76. ' Cooper, Eq. PI. 70, and cases there cited ; Gilb. For. Rom. 1 73, 1 74 ; Wyatt, Pr. Reg. 91-94. This passage is taken by Mr. Cooper almost literally from Lord Redesdale's treatise, (Mitf. Eq. PI. by Jeremy, 76, 77.) But the few words 30* 354 EQUITY PLEADINGS. [CH. VHI. fore the court are, the competency of the parties to revive, or the correctness of the frame of the bill.'' added by Mr. Cooper, make the sense more clear and definite, and I have there- fore followed the latter. The following passage from Lord Redesdale's Eq. PI. 77, 78, may be useful to show the practice as to bills of revivor. '' Upon a bill of revivor," says he, " the defendants must answer in eight days after appear- ance, and submit, that the suit shall be revived, or show cause to the contrary ; and in default, unless the defendant has obtained an order for further time to answer, the suit may be revived without answer, by an order made upon motion, as a matter of course; The ground for this is an allegation, that the time allowed the defendant to answer by the course of the court is expired, and that no answer is put in. It is therefore presumed, that the defendant can show no cause against reviving the suit in the manner prayed in the bill. An order to revive may also be obtained in like manner, if the defendant puts in an an- swer, submitting to the revivor, or even without that submission, if he shows no cause against the revivor. Though the suit is revived of course, in default of the defendant's answer within eight days, he must yet put in an answer, if the bill requires iti As, if the bill seeks an admission of assets, or calls for an an- swer to the original bill, the end of the order of revivor being only to put the suit and proceedings in the situation in which they stood at the time of the abate- ■ ment, and to enable the plaintiff to proceed accordingly. And notwithstanding an order for revivor has been thus obtained, yet if the defendant conceives that the plaintiff is not entitled to revive the suit against him, he may take those steps, which are necessary to prevent the further proceeding on the bill, and which will be noticed in treating of the different modes of defence to bills of revivor. And though these steps should not be taken, yet if the plaintiff does not show a title to revive, he cannot finally have the benefit of the suit, when the determi- nation of the court is called for on the_ subject." He adds : " After a cause is revived, if the person reviving, finds the original bill to require amendment, and the pleadings are in such a state, that an amendment of the bill would be per- mitted, if the deceased party were living, the bill may be amended notwithstand- ing the death of that party ; and matters may be inserted which existed before the original bill was filed, and stated, as if the deceased party had been living." In Van Heythusen's Equity Draftsman, 340 - 346, will be found the common forms of bills of revivor. The common prayer in the case of a bill of revivor on the death of the plaintiff, is : " To the end, therefore, that the said defendant may answer the premises, and that the said suit and proceedings, which so be- came abated as aforesaid, may stand revived, and be in the same plight and coni dition, as the same were in at the time of the death of the said J. A., or that the said defendant may show good cause to the contrary ; May it please, &c." In the case of the death of the defendant, it is as follows : " Therefore, that the said suit and proceedings, which became so abated by the death of the said S. N., may stand and be revived against the said T. B,. and be in the same plight, state, and condition, as the same were in at the time of the abatement thereof. And that plaintiff may have the benefit thereof; or that the said defendant T. K. ' Bettes V. Dana, 2 Sumner, K. 383. § 374 - 378.] BILLS OF kevivok. 355 § 375. If a defendant to an original bill dies before putting in an answer ; or after an answer, to wbich exceptions have been taken ; or after an amendment of the bill, to which no answer has been given ; the bill of revivor, although requiring in itself no answer, must pray, that the person, against whom it seeks to re- vive the suit, may answer the original bill, or so much of it, as the exceptions, taken to the answer of the former defendant, extend to, or as the amendment, remaining unanswered, requires.^ § 376. Where a bill of revivor is brought by a defendant after a decree, it merely substantiates the suit, and brings before the court the parties necessary to see to the execution of the decree, and to be the objects of its operations, rather than to litigate the claims made by the several parties in the original pleadings, except so far as they remain undecided.^ § 377. Fourthly ; in most of the cases already stated,^ there is no other fact to be ascertained, than whether the new party brought before the court has the character imputed to him. If he has, the revivor is of course.* But there are many cases, in which there are other facts, which may be brought into litigation, besides the mere question of the character of the new party ; and to such cases, therefore, the simple bill of revivor does not technically apply. Under such circumstances, an original bill, in the nature of a bill of revivor, is the appropriate process to bring those facts before the court, and to put the original proceedings again in motion, and to enable the new party to have the benefit of the former pro- ceedings.^ § 378. Thus, if the death of a party, whose interest is not deter- mined by his deatli, is attended with such a transmission of his interest, that the title to it, as well as the person entitled, may be litigated in the court of Chancery, as in the case of a devise of a may show cause, why the said suit and proceedings should not be so revived, and that the same may be revived accordingly.'' Van Heyth. Eq. Drafts. 341, 342. ^ Mitf. Eq. PI. by Jeremy, 76, 77, and cases there cited; Cooper, Eq. PI. 70, 71. ' Mitf. Eq. PI. by Jeremy, 79, and cases there cited ; Cooper, Eq. PI. 71 ; De- vaynes v. Morris, 1 Mylne & Craig, 213, 225 ; Ante, § 370 a. » Ante, § 364 ; Cooper, Eq. PI. 64. * Ibid. ' Mitf.-Eq. PI. by Jeremy, 71, 97 ; Wyatt, Pr. Peg. 90, 91 ; Attorney-General V. Foster, 2 Hare, K. 81, 93, 94 ; Ante, § 350 ; Post^ § 379. 356 EQUITY PLEADINGS. [CH. Vni. real estate, the suit is not permitted to be continued by a bill of revivor. An original bill upon which the title may, be litigated, must be filed. And this bill will have so far the effect of a bill of revivor, that if the title of the representative substituted by the act of the deceased party is established, the same benefit may be had of the proceedings upon the former bill, as if the suit had been continued by a bill of revivor.^ § 379. The ground of this distinction between bills of revivor, and bills in the nature of bills of revivor, seems to be, that the former, in case of death, are founded upon mere privity of blood or representation by operation of law ; the latter upon privity of estate or title by the act of the party .^ In the former case, noth- ing can be in contest, except whether the party be the heir or per- sonal representative ; in the latter, the nature and operation of the whole act, by which the privity of estate or title is created, is open to controversy.^ Thus, for example, the heir may be made a party ' Mitf. Eq. PI. by Jeremy, 71 ; Id. 97, and cases there cited; 1 Eq. Abridg. 2, 3 ; Clare v. Wordell, 2 Vern. 548 ; S. C. 1 Eq. Abridg. 3, pi. 3 ; Wyatt, Pr. Keg. 90; Jones v. Jones, 3 Atk. 217; Douglass v. Sherman, 2 Paige, K. 358. Lord Redesdale repeats the same proposition, with some slight alterations, in p. 97 of his treatise. His language there is: "It has been already mentioned, that when the interest of a party dying is transmitted to another in such a man- ner that the transmission may be litigated in this court, as in the case of a devise, the suit cannot be revived by or against the person, to whom the interest is so transmitted ; but that such person, if he succeeds to the interest of a plain- tiff, is entitled to the benefit of the former suit ; and if he succeeds to the interest of a defendant, the plaintiff is entitled to the benefit of the former suit against him ; and that this benefit is to be obtained by an original bill in nature of a bill of revivor." ' Wyatt, Pr. Reg. 90. = This subject is discussed at large in Slack v. Wolcott, 3 Mason, K. 508, to which the learned reader is referred. Gilbert, in his Forum Romanum, 172, states the reasons thus : " This subpoena is only for the heir, executor, or ad- ministrator, who came in in privity as they call it, that is in immediate repre- sentation to the party litigant deceased ; for a devisee or assignee of any plaintiff cannot have subpoena ad revivendum after the decease of such plaintiff. And this is for two reasons. First, because they looked upon a suit to be a chose in action, which was not assignable over for fear of maintenance. But this reason has been long since obsolete in the court of Chancery, where they allow the assignment of such interest. But the second and better reason is, because, where the party devises, or assigns his interest, and dies ; if the devisee or assignee were to bring his bill of revivor against the defendant, the heir or executor would be pretermitted, who might have a right to contest suCh disposi- tion, and therefore he must bring his original bill, and make the heir or executor a party." § 378 - 381.] BILLS OF REVIVOR. 357 by a bill of revivor ; for his title is by mere operation of law. But the devisee must come in by a bill in the nature of a bill of revi- vor ; for he comes in as a purchaser under the testator, in privity of estate or title, which may be disputed.^ So, where new trus- tees to a charity are appointed upon the death or resignation of the old trustees, a bill in the nature of a bill of revivor must be brought, to make them parties ; for otherwise, if not made parties, they will not be bound by the decree.^ § 380. The bill is said to be original, merely on account of the want of that privity of title between the party to the former bill and the party to the latter bill, although claiming the same inter- est, which would have permitted the continuance of the suit by a bill of revivor.^ Therefore when the validity of the alleged trans- mission of interest is established, the party to the new bill will be equally bound by, of have advantage of, the proceedings on the original bUl, as if there had been such a privity between him and the party to the original bill, claiming the same interest.* And the suit is considered as pending from the filing of the original bill, so as to save the statute of limitations, to have the advantage of compelling the defendant to answer, before an answer can be compelled to a cross bill, and to have every other advantage, which would have attended the institution of the suit by the original bill, if it could have been continued by a bill of revivor merely.^ § 381. In the case of the marriage of a female plaintiff, the husband comes in by what may properly be called a privity of representation, by operation of law, upon the marriage.® If, on the marriage, her property becomes vested by a settlement in trustees, or if any third person, such as trustees, or issue, are made interested in it, a mere bill of revivor will not do ; but the interest of such third persons must be brought forward by an original bill, in the nature of a supplemental bill and a bill of 1 Cooper, Eq. PI. 63, 69, 77 ; Gilb. For. Rom. ch. 9, p. 172 ; Wyatt, Pr. Reg. 90 ; 1 Eq. Abridg. 2 B. PI. 1 ; Harrison v. Ridley, 2 Eq. Abridg. 3 ; S. C. Comyns, R. 589 ; Douglass v. Sherman, 2 Paige, 358. ^ Attorney-General v. Foster, 2 Hare, 81, 93 ; Ante, § 350 ; Mitf. Eq. PI. by Jeremy, 71, 97, 4th edit. ; Post, § 384, note. ' Mitf. Eq. PI. by Jeremy, 97, 98. * Ibid. * Mitf. Eq. PI. by Jeremy, 97, 98, and cases there cited. " Ante, § 354. ' See Cooper, Eq. PL 64, 77 ; Post, § 387 ; Mitf Eq. PI. by Jeremy, 70, 71 ; Merry wether v. Mellish, 13 Ves. 161, 163. 358 EQUITY PLEADINGS. [CH. VHI. § 382. So, if an administrator obtains a decree in a suit ; and before there is a complete execution of it, he dies ; the adminis- trator de bonis non cannot revive the suit, so as to have the bene- fit thereof by a bill of revivor ; because he comes not in privity under the administrator who obtained the decree, but paramount to him. He represents the intestate, and not merely the former administrator.^ The true mode of obtaining the benefit of the decree in such a case would seem to be by an original bill in the nature of a bill of revivor.^ § 383. So, in the case of a bill against executors for an ac- count, if after the usual decree for an account, one of the execu- tors becomes bankrupt, the suit is in the same state as if abated ; and his assignees cannot proceed in the account, until they have revived the suit by a supplemental bill in the nature of a bill of ' Cooper, Eq. PI. 67, 76, 210. See Phelps v. Sproule, 4 Sim. R. 318 ; Stuart V. Burrowes, 1 Drury, (Irish,) 265. The case of Owen v. Curzon, 2 Vern. 237, as reported, seems the other way. But Mr. Cooper says he has examined the record, and the demurrer was allowed. (Cooper, Eq. PI. 67, 76, 210, and notes, ibid.) Mr. Raithby, in his note (1) to the case in 2 Vern. 237, confirms Mr. Cooper's statement. See S. C. 1 Eq. Abridg. 3, pi. 6. The statute of 30 Ch. II. c. 6, provided, that an administrator de bonis non may sue a scire facias., and take execution upon a judgment had in the name of an executor or former administra- tor. By analogy, an original bill in the nature of a bill of revivor, would seem to lie in equity. See Huggins v. York Buildings Co. 2 Eq. Abridg. 3, pi. 14, where it is said, a bill of revivor would lie in such a case. But quaere, if it is not an inaccurate expression,and intended for a bill in the nature of a bill of revivor, upon the analogies stated in the text ? ' Huggins V. York Buildings Co. 2 Eq. Abridg, 8, pi. 14 ; Cooper, Eq. PI. 76 ; Mitf. Eq. PI. by Jeremy, 64, note (r), and Phelps v. Sproule, 4 Sim. R. 318. ' Russell V. Sharp, 1 Ves. & Beam. 500. See Randall v. Mumford, 18 Ves. 424. In the statement of this proposition, I have followed the language of the register and counsel in the case of Russell v. Sharp, 1 Ves. & Beam. 500. See, also, Porter v. Cox, 5 Madd. R. 80. Lord Eldon, in Randall v. Mumford, 18 Ves. 427, seemed to doubt whether the suit was abated or not ; and he hesitated, as to what name should be given to the bill. His language was : " This court, how- ever, without saying, whether bankruptcy is, or is not, strictly an abatement, has said, that according to the course of the court, the suit is become as defective, as if it was abated. And, as the assignees will have the benefit of the suit, and as- suming in practice, that he who is a bankrupt, will continue so, the course, which the court has taken, is to require him to bring his assignees before it by bill of revivor, or supplemental bill in the nature of a bill of revivor, or by whatever name it is called." At present, it seems understood, that by the bankruptcy of a party the suit is not abated, and therefore, technically, a revivor is not necessary; § 382 - 386.] BILLS OF revivor. 359 § 384. It has been remarked by Lord Redesdale, that there seems to be a difference between an original bill in the nature of a bill of revivor, and an original bill in the nature of a supplemental bill. Upon the first, the benefit of the former proceedings is abso- lutely obtained ; so that the pleadings in the first cause, and the depositions of witnesses, if any have been taken, may be used in the same manner, as if filed or taken in the second cause ; and if any decree has been made in the first cause, the same decree shall be made in the second. But in the other case, a new defence may be made ; the pleadings and depositions cannot be used in the same manner, 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.^ § 385. A bill in the nature of a bill of revivor or supplement cannot be brought except by some person who claims in privity with the plaintiff in the original bill. Thus, for example, if a bill is filed by a devisee under a will, and afterwards a subsequent will is proved, by which the same property is devised to another devi- see ; in such a case, the latter devisee cannot, by a bill in the na- ture of a supplemental bill, avail himself of the proceedings in the original suit ; for there is no privity between the plaintiff in the original suit, and the plaintiff in the supplemental bill. But if the bill had been filed by the devisor himself for some matter touching the estate devised, then the second devisee might file a supplement- al bill in the nature of a bill of revivor, notwithstanding the first devisee has already filed such a bill ; for he derives his title solely from the devisor, independently of the first devisee.^ § 386. An original bill in the nature of a bill of revivor should generally state the same facts as a bill of revivor. It should state the original bill, the proceedings upon it, the abatement, and the but an original bill, in the nature of a supplemental bill. See Cooper, Eq. PI. 76, 77; Mitf. Eq. PI. by Jeremy, 65 and note (;), 98 ; Sellas v. Dawson, 2 Anst. 458, note ; Davidson v. Butler, 2 Anst. 460, note ; Harrison v. Ridley, Com. R. 589. ' Mitf. Eq. PI. by Jeremy, 72, 73, and cases there cited. See also Lloyd v. Johnes, 9 Ves. 37, &c. ; Attorney-General v. Foster, 2 Hare, R. 81, 93, 94. Mr. Vice-Chancellor Wigram, in this last case, adverted to the distinction between a bill in the nature of a bill of supplement, and a bill in the nature of a bill of re- vivor and supplement. See Ante, § 350. " Oldham v. Eboral, 1 Coop. Sel. Cas. 27 ; Rylands v. Latcouche, 2 Bligh, R. 5_86 ; Tonkin v. Lethbridge, Coop. Eq. R. 43. 360 EQUITY PLEADINGS. [CH. VHI. manner, in which the interest of the party dead has been transmit- ted. It should also charge the validity of the transmission, and state the rights, which have accrued by it,^ The bill should also pray, that the suit may be revived, and the plaintiff have the ben- efit of all the former proceedings thereon.^ § 387. Fifthly, a bill of revivor and supplement. This bill is a mere compound of the two preceding species of bills, and in its separate parts it must be framed and proceeded upon in the same manner.^ It becomes proper, where not only an abatement has taken place in a suit, but defects are to be supplied, or new events are to be stated, which have arisen since the commencement of the silit.* Thus, if a suit becomes abated, and by any act besides the event, by which the abatement happens, the rights of the parties are affected, as by a settlement or a devise, under certain circum- stances, although a bill of revivor merely may continue the suit, so as to enable the parties to prosecute it ; yet to bring before the court the whole matter necessary for its consideration, th? parties must by supplemental bill, added to and made part of the bill of revivor, show the settlement, or devise, or other act, by which their rights are affected. And, in the same manner, if any other event, which occasions an abatement, is accompanied or followed by any matter necessary to be stated to the court, either to show the rights of the parties, or to obtain the full benefit of the suit, beyond ' Mitf. Eq. PI. by Jeremy, 97 ; Phelps v. Sproule, 4 Sim. K. 318. ^ The following is the form of the prayer of an original biU in the nature of a bill of revivor, where a bill to foreclose a mortgage was brought, and the defend- ant died, after a decree referring it to a master, &c., leaving a will, under which the equity of redemption was supposed to be devised, and the present bill was brought against the heir and the devisees. " And that in case it shall appear, that the equity of redemption of the said mortgaged premises descended upon the death of the said T. H. to the said W. H., then that the said suit and proceedings therein may stand, and be revived against the said W. H., and be in the same plight and condition, as the same were in at the time of the abatement thereof. But in case it shall appear, that the said equity of redemption was devised to the said R. L. and B. J., then that the said decree, made on the hearing of this cause, may be prosecuted and carried into full effect against them, the said R. L. and B. J., in the same manner as the same might have been prosecuted against the said late defendant, T. H. ; and that all necessary directions may be given for effectuating the several matters aforesaid ; May it please, &c." Van Heyth, Eq. Drafts. 348. = Mitf. Eq. PI. by Jeremy, 80 ; Cooper, Eq. PI. 84. * Cooper, Eq. PI. 84 | Pendleton v. Fay, 3 Paige, R. 204 ; Westcott v. Cady, 5 John. Ch. R. 342. §386-389.] CKOSS BILLS. 361 what is merely necessary to show, by or against whom the cause is to .be revived, that matter must be set forth by way of supple- mental bill, added to the bill of revivor.^ § 388. "We come, in the next place, to the consideration of the remaining class of bills not original, viz., bills, which although occasioned by, or seeking the benefit of, a former bill, or of a de- cision made upon it, or attempting to obtain a reversal of a decision, are yet not considered as a continuance of the former bill, but are in the nature of original bills. ^ They are, in truth, of a mixed character, partaking partly of the character of original bills, and partly of that of bills not original.^ This class includes six kinds. (1.) Cross bills. (2.) Bills of review. (3.) Bills in the nature of bills of review. (4.) Bills to impeach decrees for fraud. (5.) BiUs to suspend or avoid the operation of decrees. (6.) Bills to carry decrees into execution.* Of these we shall treat in their order. § 389. And first of cross bills. A cross bill, ex vi terminorum, implies a bill brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill.* A bill of this kind is usually brought, either (1.) to obtain a neces- sary discovery of facts in aid of the defence to the original bill, or (2.) to obtain full relief to all parties, touching the matters of the original bill.^ [And a cross bill, which seeks no discovery, and ^ Mitf. Eq. PI. by Jeremy, 70, 71 ; Cooper, Eq. PI. 64 ; Merrywether v. Mellish, 13 Ves. 161, 163, 435 ; Bampton v. Birchall, 1 Phillips, R. 568. See Manchester v. Matthewson, 2 Rhode Island, R. 416. Lord Redesdale has put this illustration under the head of a bill of revivor and supplement. Is it not rather an original bill in the nature of a bill of revivor and supplement, since it brings forward new interests ? See Ante, § 345, 346. ' Mitf. Eq. PL by Jeremy, 33 ; Ante, § 16, 20, 326. ' Ante, § 16, 20; Cooper, Eq. PI. 62. Lord Redesdale has arranged in this class, (1.) Bills- in the nature of bills of revivor, and (2.) Bills in the nature of supplemental bills. (Mitf. Eq. PL by Jeremy, 80.) I have preferred the arrange- ment of Mr. Cooper, (Eq. PL 62,) which includes them in the former class as more convenient in a practical view, though that of Lord Redesdale may be more exact and accurate in a scientific view. Ante, § 20, 21. * Mitf. Eq. PL by Jeremy, 80 ; Cooper, Eq. PL 62. » Mitf. Eq. PL by Jeremy, 80, 81 ; Cooper, Eq. PL 85 ; 1 Mont. Eq. PL 327, 328 ; Post, § 392, 396. ° Mitf. Eq. PL by Jeremy, 81 ; Piggott v. Williams, 6 Madd. R. 95 ; Cooper, Eq. PL 85 ; and see Rutland v. Paige, 24 Verm. 183. EQ. PL. 31 362 EQUITY PLEADINGS. [OH. Vin. makes no defence, which was not equally available by way of an- swer to the original bill, will be dismissed .i] § 390. The former case (a cross bill for discovery) arises from a settled rule in equity, that the plaintiff in a suit cannot be exam- ined as a witness in that suit ; and if his testimony is wanted by the defendant as to any material facts, it must be by a cross bill.^ It has been well remarked, that in the transactions of human life, it frequently happens, that the leading facts of the case are known only to the acting parties ; and it is, therefore, of essential service to the cause of truth and justice that the defenjiantin a suit should be enabled to interrogate the plaintiff on his oath, as to the subject- matter in dispute between them.^ The cross bill, therefore, gives a perfect reciprocity of proof to each party, derivable from the an- swer of each. And on this account the right to file a cross bill is not confined to cases between private persons ; for if a foreign sovereign brings a bill, the defendant may file a cross bill against him for a discovery of matters material to his defence.* The im- portance of a cross bill, for the purpose of discovery, may be illus- trated by a familiar example.' It is a general rule, that if a de- fendant wants a discovery of any deed in the hands of the plaintiff, he must file a cross bill for the purpose, although the plaintiff should state in his bill, that the deed is in his custody, and ready to be produced as the court shall direct.^ Now, that 'very deed may furnish the main grounds of establishing the defence to the original bill. § 391. The latter case (a cross bill for relief) may occur, when the original bill is brought for the specific performance of a written contract, which the defendant at the same time insists ought to be delivered up or cancelled. Under the original bill no such relief could be had ; and, even if the plaintiff should fail in obtaining a decree under his original bill for a specific performance of the con- tract, he might, notwithstanding, afterwards bring his action at law for damage sustained by him by the non-performance. It may, therefore, be necessary for the defendant, in order to his protection .' Weed V. SmuU, 3 Sanf. Ch. R. 273. And see Andrews v. Hobson, 23 Ala. 219. ^ Mayor of Colcliester v. , 1 P. Will. 595. ' 1 Sijiith, Ch. Pr. ch. 2, p. 67; Gordon v. Gordon, 3 Swanst, 474. ' Eothschild V. Queen of Portugal, 3 Younge & Coll. 594. * Spragg V. Corner, 2 Cox, R. 109. §389-393.] CROSSBILLS. 363 against any such harassing suits, to file a cross bill for the purpose of having the contract delivered up or cancelled.^ § 391 a. So, if a bill should be brought by one tenant in com- mon of the legal estate against another for a partition ; it would be a good defience by the latter, that he had acquired a good equi- table title to the whole premises. But, if he should further wish to have affirmative relief on his part, and a decree, that the plain- tiff shall convey his legal title to him in conformity to his equitable title, he must file a cross bill for the relief ; for under the bill for a partition no such relief could be had.^ § 392. It also frequently happens, and particularly, if any ques- tion arises between two defendants to a bill, that the court cannot make a complete decree without a cross bill, or cross bills, to bring every matter in dispute completely before the court, to be litigated by the proper parties, and upon the proper proofs. In such a case, it becomes necessary for some one or more of the defendants to the original bill to file a cross bill against the plaintiff and some or all of the other defendants in that bill, and thus to bring the litigated points fully before the court.^ § 393. As this species of bill is a mode of defence, a defendant is sometimes of necessity obliged to resort to it in cases, where, by the rules of pleading in equity, he would not be able to avail him- self of the matter of his defence in any other way. Thus, if the matter of defence arises after the cause is at issue, as if the plain- tiff has given the defendant a release, or if there has been an award made on a reference after issue joined, or perhaps in case of the defendant's bankruptcy, if he has obtained his certificate after issue joined, (all of which at law may be made the subjects of a plea^m's darrein continuance,) a defendant in equity cannot avail himself of either of these defences by plea or answer, and therefore he must make them the subject of a cross bill.* Thus, where, pend- ' Cooper, Eq. PL 85, 86. But see Hilton v. Barren, 1 Ves. jr. 284, where Lord Kosslyn said such a bill was not a pure cross bill. See 1 Daniell, Ch. Pract. 513, 514, citing Lindsey v. Lynch, 2 Sch. & Lefr. 9 ; Woollam v. Hearn, 7 Ves. 222 ; Denniston v. Little, 2 Sch. & Lefr. 11, note, 144, note (z) ; 2 Story on Eq. Jurisp. § 771. " German v. Mackin, 6 Paige, 288. ' Mitf. Eq. PI. by Jeremy, 81 ; Cooped, Eq. PI. 85; Pattison v. Hull, 9 Cowen, K. 747 ; 1 Mont. Eq. PI. 327, 328 ; Wright v. Miller, 1 Sandford, Ch. K. 108. * Cooper, Eq. PI. 86, 87, and cases there cited ; Mitf. Eq. PI. by Jeremy, 82 ; Hayne v. Hayne, 3 Ch. K. 19. See Ante, § 337, in what cases new matter, or 364 ' EQUITY PLEADINGS. [CH. VIH. ing a suit, and after replication and issue, the defendant, having obtained a release, attempted to prove it vivd voce at the hearing, it was determined, that the release not being in issue in the cause, the court could not try the fact, or direct a trial at law for that purpose, and that a new bill must be filed to put the release in issue.i In the case before the court, indeed, the bill, directed to be filed, seems to have been intended to impeach the release upon the ground of fraud or surprise, and therefore to have been a proceed- ing on the part of the** plaintifi" in the original bill. But it was clearly determined, that without being put in issue in the cause by a new bill, it could not be used in proof.^ And where a suit is in- stituted to obtain the benefit of an executed contract, a defence founded on the conduct of the parties, must be by cross bill.^ § 394. A cross bill is now imnecessary in some cases, in which it was formerly required. As, for example, if a bill was filed for the specific performance of an agreement, and the defendant should insist upon a different agreement from that stated by the plaintiff in the bill, and should offer to perform the specific agreement, which he represents to have been made ; the old course would have required, that the defendant should file a cross bill, to entitle himself to a decree for the performance of the agreement as set up and proved by the defendant. But this would now be unneces- sary ; because the court will, under such circumstances, at his re- quest, decree a specific performance of the agreement, actually set >up and established in the defence.* newly-discovered evidence, occurring after the bill, can be brought forward by a supplemental bill. Barrington v. O'Brien, 2 Ball & Beat. 140. ' Cooper, Eq. PI. 86, 87. » Ibid. ' Nash V. Flyn, 1 Jones & La Touche, R. 162 ; Richards v. Bayly, Ibid. 120. * Cooper, Eq. PI. 85, 86; 2 Story on Eq. Jurisp. § 770; Fife v. Clayton, 13 Ves. 546. In this case of Fife and Clayton, 13 Ves. 546, the plaintiff wished to dismiss the bill, and the defendant insisted upon the specific performance of the agreement, stated in his answer and proved by himself; and therefore the aver- ment of his willingness to perform it was relied on by his counsel, who cited Scott ti. Stapylton, 13 Ves. 425, as in point, where the master of the rolls dismissed the cross bill of the defendant with costs, considering it as unnecessary, as the court would, upon the answer, have decreed a specific performance of what was the real agreement, the defendant submitting to perform the agreement. On this occasion, Lord Chancellor Eldon said: " The old course required a cross bill; but I am willing to follow a precedent, that will save expense, and is right upon principle, the plaintiff by his bill offering to perform the specific agreement, which §393-395.] CROSSBILLS. 365 [* § 394 a. And where a party to a deed comes into a court of equity, to have the deed and the transaction it represents com- pleted, any case of fraud so connected therewitli as to operate as a defence against the prayer of the bill, may be set up by way of answer, and it is unnecessary for that purpose to file a cross bill.-'] § 395. It is a general rule, that a cross bill must be brought be- fore publication has passed in the original cause, unless the plain- tiff in the cross bill will go to the hearing upon the depositions and proofs already published.^ This rule is established to prevent the danger of perjury, and the subornation of perjury, in case the parties should, after the publication of the former depositions and proofs, be permitted to examine witnesses de novo to the same matters, to which they or others have been already examined.^ However, publication will be enlarged, or (perhaps more properly he represents.'' And a specific performance was decreed with costs. The case, therefore, was one where the defendant submitted to perform the agreement set up and proved by himself. But if the plaintiff had wished the agreement, as admitted by the defendant, to be specifically performed, it seems that he would not h*e been permitted to have a decree for it, as it was not the case stated in his bUl. See Sugden on Vendors, 7th edit. 217; Sugden on Vendors, ch. 4, note (i), 10th edit. ; Higginson v. Clowes, 15 Ves. 525 ; Clowes v. Higginson, 1 Ves. & Beam. 524 ; Lindsay v. Linch, 3 Sch. & Lefr. 1 ; Legal v. Miller, 2 Ves. 299 ; Legh v. Haverfield, 5 Ves. 452 ; Woolam v. Hearn, 7 Ves. 211. The proper course in such a case would seem to be for the plaintiff to amend his bill upon the coming in of the defendant's answer ; or to have his bill dismissed with- out prejudice at the hearing. See Ibid, and Denniston v. Little, cited in the note to 2 Sch. & Lefr. 11. Where a plaintiff brings a bill for an account and allowances in that account, the defendant has a right to make objections to it in the same way as if he had brought a cross bill. Josey u. Rogers, 13 Geo. 478 ; Rob- erts V. Peavey, 9 Foster, 394 ; Farrar v. Crosby, 7 Foster, 29 ; Ayliffe v. Murray, 2 Atk. 59. [* ' Hannah v. Hodson, 7 Jur. N. S. 1092.] = Cooper, Eq. PI. 87 ; 1 Eq. Abridg. G. 8, pi. 1, p. 80 ; Bassett v. Nesworthy, Rep. Temp. Finch, 102, 103 ; White v. Buloid, 2 Paige, R. 164 ; Field v. Schief- felin, 7 John. Ch. R. 250; Sterry v. Arden, 1 John. Ch. R. 62; Gouverneur V. Elmendorf, 4 John. Ch. R. 357 ; Irving v. De Kay, 10 Paige, R. 319. ' Ibid. Hence it is a rule, that where a cross bill is filed after publication, and before a decree in the original cause, the evidence, taken on the cross bill, to any matters in issue in the original cause, cannot be read at the hearing of the latter. And on the hearing of the cross cause, the testimony of new witnesses to the matters in issue in the original cause, will not, after a decree in the origi- nal cause, be allowed to be read in the cross cause. But to matters not so in issue it may be read. Wilford v. Beasley, 3 Atk. 501 ; Taylor v. Obee, 3 Price, R. 26, 83 ; Field v. Schieffelin, 7 John. Ch. R. 252, 253. 31* 366 EQUITY PLEAJ)1NGS. [CH. Vni. speaking) postponed, for the purpose of enabling the defendant to file a cross bill, upon a special application, showing sufficient gi-ounds to the court for making such an order. And when an original bill and cross bill are both filed, both causes commonly proceed to be heard together, which could not be done, if the cross bill were filed after publication in the original cause, unless the cross bill were heard on the bill and answer .^ § 396. But although the general rule is, that a cross bill must be filed before publication, to entitle the party to take testimony in support of the facts asserted in it, independent of the answer ; yet this rule is a restriction upon the rights of the defendant only, and not upon the authority of the court ; for, where it is necessary for the purposes of justice in a particular cause, the court may after- wards direct a cross bill to be filed.^ Thus, upon hearing a cause, it sometimes appears, that the suit already instituted is insufficient to bring before the court all matters necessary to enable it fully to decide upon the rights of all the parties. This most commonly happens, where persons in opposite interests are co-defendants, so that the court cannot determine their opposite interests upon the bill already filed, and yet the determination of their interests is necessary to a complete decree upon the subject-matter of the suit. In such a case, if, upon hearing the cause, the difficulty appears, and a cross bill has not been exhibited to remove the difficulty, the court will direct a bill to be filed in order to bring all the rights of all the parties fully and properly before it for its decision ; and it will reserve the directions or declarations, which it may be ne- cessary to give or make, touching the matter not fully in litigation by the former bill, vintil this new bill is brought to a hearing.^ § 397. And, if a creditor, who has come in under a decree in favor of creditors against a debtor, should require relief for the' purpose of assisting the investigation of demands, affecting the estate, before the master, which relief cannot be obtained under the original bill, or by a rehearing, he may, even without the direction of the court, file a cross bill for the purpose;* for he might not have had any opportunity, at an earlier stage of the proceedings, of presenting his case and his objections. * Cooper, Eq. PI. 87, 88. ' Mitf. Eq. PI. by Jeremy, 82, 83. ' Mitf. Eq. PI. by Jeremy, 82, 83; Id. 203, and cases there cited; Field v. Schieffelin, 7 John. Ch. K. 253, 254 ; Ante, § 392. * Latouche v. Dunsany, 1 Sch. & Left. 137. §395-400.] CROSSBILLS. 367 § 398. Where the cross bill seeks, not only a discovery, but re- lief, care should be taken, that the relief, prayed by the cross bill, should be equitable relief ; for, to this extent, it may be considefed as not purely a cross bill, but in the nature of an original bill, seeking further aid from the court ; and then the relief ought to be such as, in point of jurisdiction, it is competent for the court to give.^ It was upon this ground that, where a purchaser of an es- tate, under articles of agreement, filed his bill for a conveyance, having got into possession of a part of the estate, and the vendor filed a cross bill to recover back the possession from the purchaser, the court, although it dismissed the original bill, refused to give the relief sought upon the cross bill ; for it was the proper object of an action of ejectment, and entirely within the competence of a court of law.2 [* 398 a. It seems now well settled in practice, that any affirm- ative relief must be sought either by a cross bill or an independ- ent suit, and can never be granted upon the facts stated in the answer.* And all matters in avoidance of a plea or answer, which have arisen since tlie suit began, are properly set up by a supplemental bill, and cannot be introduced by a special repli- cation.*] § 399. But, subject to this qualification, a cross bill, being gen- erally considered as a defence to the original bill, or as a proceed- ing necessary to a complete determination of a matter already in litigation, the plaintifif is not, at least, as against the defendant in the original bill, obliged to show any ground of equity to support the jurisdiction of the court.^ It is treated, in short, as a mere auxiliary suit, or as a dependency upon the original suit. § 400. It seems that, in England, it is not indispensable that a cross bill should be filed in the same court in which the original »bill is filed ; as, for example, if the original bill had been brought in the court of Exchequer, whilst that court had equity jurisdic- 1 Cooper, Eq. PI. 86. ^ Calverly v. Williams, 1 Ves. jr. 211, 213 ; Cooper, Eq. PI. 86, 87 ; Mitf. Eq. PI. by Jeremy, 81, and note (2.) [* ' McConnell v. Smith, 23 111. 611 ; Armstrong v. Pierson, 5 Clarke (low.), 317. * Chouteau v. Eice, 1 Min. 106.] * Mitf. Eq. PI. by Jeremy, 81, 82, 303 ; Cooper, Eq. PI. 86 ; Burgess v. Wheate, 1 Eden, K. 190; Kemp v. Mackerell, 3 Atk. 812; Doble v. Potman, Hardr. R. 160 ; WjaXi, Pr. Keg. 85, 86. 368 EQUITY PLEADINGS. [CH. VIII. tion, the cross bill might be brought in the court of Chancery .1 Whether the like doctrine is maintainable in the courts of America generally, may admit of question. But, at all events, there cannot be a cross bill in a state court to an original bill pending in a cir- cuit court of the United States. If any cross bill is wanted in such a case, it should be brought in the same circuit court in which the original bill is depending, as it is not an original, but an ancillary suit.^ § 401. In regard to the frame of a cross bill, a brief statement may suffice. It should state the original bill, or rather the parties, and prayer, and objects of it, the proceedings thereon, and the rights of the party exhibiting the bill, which are necessary to be made the subject of cross litigation, or the ground on which he resists the claim of the plaintiff in the original bill, if that is the object of the new bill.^ A cross bill should not introduce new and distinct matters, not embraced in the orTginal suit ; * for, as to such matters, it is an original bill, and they cannot properly be exam- ined at the hearing of the first suit.^ § 402. The cross bill of equity jurisprudence is manifestly derived from the Canon Law. By that law, when the reus, or ' Cooper, Eq. PI. §7 ; Glegg v. Legh, 4 Madd. K. 192 ; Parker v. Leigh, 6 Madd. 115. Mr. Cooper so lays down the doctrine in the text, and cites for it the case of Newburg v. Wren, 1 Vern. 220 ; S. C. 1 Eq. Abridg. 80, pi. 2 ; Id. 134, pi. 3. But this case was not strictly a cross bill, though it was in the nature of a cross bill. The original bill in the Exchequer was a bill to redeem, and the bill in Chancery was by the defendant in the original suit to foreclose. So that it was strictly an original bill for rehef. The objection raised was by a plea of the pendency of the first suit for the same cause. The plea was overruled. But in Parker v. Leigh, 6 Madd. E. 115, the doctrine was affirmed in a cross bill for a discovery. There seems no small difficulty in understanding how a cross bill, strictly so called, for relief, can be brought in a different court from that where the original bill is depending ; as the object is to enable the court to hear both causes together ; or, at all events, to enable the court to make a decree upon the whole merits, as disclosed in each case. See Field v. Schieffelin, 7 John. Ch. R. 252 ; Gouverneur v. Elmendorf, 4 John. Ch. R. 357 ; Glegg v. Legh, 4 Madd. R. 192 ; Beames, PI. in Eq. 142. ' Mitf. Eq. PI. by Jeremy, 81, 82, 203. See Carnochan v. Christie, 11 Wheat. 446, 467. ' Mitf. Eq. PI. by Jeremy, 81 ; Cooper, Eq. PI. 88. * See Josey v. Rogers, 13 Geo. 478. ' Galatian v. Brwin, Hopk. R. 48 ; S. C. 8 Cowen, R. 361. A bill, defective in its frame, as a bill of review, may sometimes be sustained as a cross bill. Cooper, Eq. PI. 96 ; Houghton v. West, 2 Bro. Pari. Rep. by Tomlins, 88. §400-402.] CROSSBILLS. 869 defendant, was brought in to answer, he was said to be convened, which the canonists called Conventio, because the plaintiff and defendant met to contest ; and since the defendant might likewise have demands against the plaintiff, he had liberty to exhibit a bill against him also, which they called Reconventio. And not only may the cross bill be thus traced back in its origin to the Canon Law, but the ordinary practice in regard to it is derived from the same source. Thiis, if the Reconventio came in before the Litis Contestatio, both causes went on pari passu, and the same proba- tory term was assigned to both, and the same time given for pub- lication. But the defendant was to answer on the Conventio, be- fore the plaintiff was to answer on the Reconventio ; because the plaintiff first brought the defendant into court to answer his suit, and the defendant's Reconventio was only a superstructure upon it. But, if the Reconventio did not come in until after the Litis Contestatio, then both causes did not proceed pari passu; and therefore it did not stop the plaintiff in the examination of his wit- nesses. But, if the plaintiff were in contempt for not answering on the Reconventio, then he would be stopped from proceeding on his own Conventio. If the Reconventio came in after publication, it stopped the hearing, till the plaintiff had contested it ; because, otherwise, if the defendant had a right, he couldnot have a decree upon the plaintiff's libel.^ It has been sometimes suggested, that, upon filing a cross bill, the original defendant is entitled to stay proceedings, and excused from putting in his answer to the original bill, until after 'the defendant in the cross bill has put in his answer thereto. But this, although apparently founded upon some au- thorities, is not maintainable upon principle ; ^ for it is an attempt by a party to relieve himself from the performance of his duty in answering the original bill by merely requiring an answer to a cross bill from his adversary.^ ' Gilb. For. Rom. 45-47. Lord Chief Baron Gilbert has remarlt ed : "Our law, touching cross bills, which is the Reconventio with us, agrees in all things with this ; for if the cross bill comes in before issue joined, it goes pari passu with the original bill. But if it comes in after issue joined, it cannot go pari passu with it, and stops nothing, till the plaintiif has incurred a contempt. But if it comes in after publication, it stops the hearing till answered, and the rather with us, be- cause the defendant has a right to the plaintiff's answer upon oath. But if such bin be filed after publication, nothing can be put in issue upon it that was in issue in the original cause." ^ Ramkissenseat v. Barker, 1 Atk. 19. ' Wigley V. Whitaker, 1 Beavan, R. 349, 351. 370 EQUITY PLEADINGS. [CH. VIIL § 403. Secondly, of bills of review. A bill of review is in the nature of a writ of error, and its object is to procure an examina- tion, and alteration, or reversal of a decree made upon a former bill, which decree has been signed and enrolled.^ This enrolment of the decree is essential to what is called, by way of preeminence, a bill of review ; for if the decree has not been enrolled, then a bill in the nature of a bill of review, or a supplemental bill in the nature of a bill of review, is the appropriate* remedy.^ The en- rolment of decrees in England is now little known in practice, and therefore bills of review are rarely brought.^ But as the same principles are generally applicable to all the varieties of this spe- cies of bills, we shall state them under the leading of bills of review. Indeed, there is the more reason for so doing, because in most of the state courts of equity in America, and certainly in the courts of the United States, all decrees in equity, as well as judg- ments at law, are matters of record, and are deemed to be en- rolled, as of the term of the court at which they are passed, ' Mitf. Eq. PI. by Jeremy, 83 ; Gilb. For. Kom. 184, 185 ; Cooper, Eq. Pi. 88. ' Cooper, Eq. PL 88, 89 ; Mitf. Eq. PI. by Jeremy, 90 ; Dexter v. Arnold, 5 Mason, R. 303, 310 ; The Greenwich Bank v. Loomis, 2 Sandford, E. 70. The following remarks of Chief Baron Gilbert, in his Forum Romanum, ch. 10, p. 182, 183, will serve to explain the probable origin of the bill of review, and the reason why it requires an enrolment. " The sentence," says he, " by the canon and civil was twofold, interlocutory and definitive. The interlocutory w£is any order pro- nounced by the judge in the cause touching the proceedings, before they came to a definitive sentence ; and the interlocutory order is always alterable before the definitive sentence. The definitive sentence must always be in writing, and can- not be altered after it is pronounced and signed by the judge. But after it is so signed, they might appeal to a superior jurisdiction. But where they were in the last resort, as when it came up to the prince, there they might appeal from the prince uninformed, to the prince better informed, which was in nature of a review of the same sentence. Thus it is in the court of Chancery; for all orders are interlocutory, till they come to the definite sentence, which is signed by the court ; for that sentence, signed and enrolled, is the definite sentence in the cause, and all preparations before that are but interlocutory. For the decree pronounced on the hearing, which is taken down by the register, is but an interlocutory sentence, till it comes to be signed by the-judge of the court and enrolled." ' The defendant may enroll a decree, in order to enable him to bring a bill of review. But this seems unnecessary, as he may (as"we shall presently see) bring a bill in the nature of a bill of review, or move for a rehearing, (as the case may require,) where the plaintiff has not enrolled the decree. Cooper, Eq. PI. 91. § 403 - 405.] BILLS OF REVIEW. 371 whether actually enrolled or not ; so that in those courts a bill of review is the ordinary and appropriate proceeding.^ § 404. There are but two cases in which a bill of review is per- mitted to be brought, and these two cases are settled and declared by the first of the Ordinances in Chancery of Lord Chancellor Bacon, respecting bills of review, which Ordinances have never since been departed from. It is as follows : " 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 arisen 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 was made, which could not "possibly have been used at the time when the decree passed, a bill of review may be groimded by the special license of the court, and not otherwise."^ So that, from this Ordinance, a bill of review may be brought, first, for error of law, secondly, upon discovery of new matter. § 405. And, first, it may be brought for error of law, appearing ^ Dexter v. Arnold, 5 Mason, R. 303, 310, 311. The very point came before the Supreme Court of the United States, in Whiting v. Bank of United States, 13 Peters, R. 6, 13. On that occasion, the court said : " Some suggestions have been made as to the nature and character of the present bill, whether it is to be treated as a bill of review, or what other is its appropriate denomination. As the original decree, which it seeks to review, was properly, according to our course of 'practice, to be deemed recorded and enrolled as of the term, in which the final decree was passed, it is certainly a bill of review in contradistinction to a bill in the nature of a bill of review, which latter bill lies only when there has been no enrolment of the decree. Being a bill brought by the original parties and their privies in representation, it is also properly a bill of review, in contra- distinction to an original bill in the nature of a bill of review ; which letter bill • brings forward the interests affected by the decree, other than those which are founded in privity of representation. The present bill seeks to revive the suit by introducing the heirs of Whiting before the court ; and so far it has the char- acter of a bill of revivor. It seeks also to state a new fact, namely, the death of Whiting, before the sale ; and so far it is supplementary. It is, therefore, a com- pound bill of review, of supplement, and of revivor ; and it is entirely maintain- able as such, if it presents facts which go to the merits of the original decree of foreclosure and sale." '^ Cooper, Eq. PI. 89, and cases there cited ; Dexter v. Arnold, 5 Mason, K. 310 ; Beam. Ord. in Ch. 1 ; Davis v. Bluck, 6 Beavan, R. 393. [These Ordi- nances still govern bills of review. Massie v. Graham, 3 McLean, 41. J 372 EQUITY PLEADINGS. [CH. VIII. upon the face of the decree ; as if a decree should be against the statute law, which case happened, where a decree directed the leg- acy belonging to a child, who had died an infant intestate without wife or children, to be distributed amongst his mother, brothers, and sisters equally, whereas by the statute of distributions it vest- ed entirely in the father, who had survived the child.^ So, if an absolute decree should be made against a person, who, upon the face of it, appears to have been an infant at the time.^ [So it is ground for a bill of review, that the decree was not warranted by the allegations in the bill.^ So, if a solicitor enter an appearance for a defendant without authority, and a decree is rendered against him, without any service, such decree may be reversed.*] But, by the Ordinance of the Lord-Chancellor above mentioned, any error in figures, as in miscasting, shall be explained and reconciled by an order, without a bill of review.^ By the term miscasting, is not to be understood any pretended misrating or misvaluing, but only error in the auditing or numbering. It is not necessary to obtain leave of the court, before a bill of this kind for error of law, ap- parent on the face of the decree, can be filed. ^ § 406. But, by another of the Ordinances above mentioned, the decree must be first obeyed and performed, before a bill of review- can be brought ; as if it be for land, the possession must be given up ; if it be for money, the money must be paid ; if for evidences, the evidences must be brought in ; and so in other cases.^ But if any act be decreed to be done, which extinguishes the parties' right at the common law, as making of assurance or release, acknowl- edging satisfaction, cancelling of bonds, or evidences, and the like, it is declared, that those parts of the decree are to be spared until the bill of review be determined.^ But such sparing is to be war- ' Cooper, Eq. PI. 89, 90; Gilb. For. Kom. 184-187; Beam. Ord. in Chan. 3, 4 ; Gregor v. Molesworth, 2 Ves. 109. " Ibid. ' Goodhue V. Churchman, 1 Barb. Ch. R. 596. * Griggs V. Gear, 3 Gilman, 2. ' [Such an error may be corrected by entering a credit for the amount of the error, upon the unsatisfied decree, and the ground of review will be thus obvi- ated. Massie v. Graham, 3 McLean, 41.} • Cooper, Eq. PI. 89, 90; Gilb. For. Rom. 184-187; Beam. Ord. in Chan. 3, 4 ; Gregor v. Molesworth, 2 "Ves. 109. ' Cooper, Eq. PI. 69. « Cooper, Eq. PL 69 ; Massie v. Graham, 3 McLean, 41. §405-407.] BILLS OF REVIEW. 373 ranted by public order made in court. And even the rule, as to obedience and performance of tlie decree, has been dispensed with by the court in some cases ; as where a sum of money has been ordered to be paid, and it appeared, that the. party was unable to pay it.i § 407. In regard to errors of law., apparent upon the face of the decree, the established doctrine is, that you cannot look into the evidence in the case, in order to show the decree to be erroneous in its statement of the facts.^ That is the proper office of the court upon an appeal. But, taking the facts to be, as they are stated to be on the face of the decree, you must show that the court have erred in point of law. If, therefore, the decree do not contain a statement of the material facts, on which the decree pro- ceeds, it is plain, that there can be no relief by a bill of review, but only by an appeal to some superior tribunal.^ It is on' this account, that in England decrees are usually drawn up with a special statement of, or reference to, the material grounds of fact, which support the decree. In the courts of the' United States, the decrees are usually general, without any such statement of facts. In England, the decree embodies the substance of the bill, plead- ings, and answers. [And the pleadings cannot be referred to, in support of the bill. Nothing can there be looked at, but the de- cree itself.*] In the courts of the United States, the decree usu- ally contains a mere reference to the antecedent proceedings with- out embodying them. But for the purpose of examhiing all errors of law, the bill, answers, and other proceedings, are, in our prac- tice, as much a part of the record before the court, as the decree itself; for it is only by a comparison with the former, ' Cooper, Eq. PI. 90 ; Gilb. For. Rom. 185-187; Wyatt, Pr. Eeg. 98; Par- tridge V. Usborne, 5 Euss. K. 195, 244-253 ; Wiser v. Blachly, 2 John. Ch. R. 488 ; Mitf. Eq. PI. by Jeremy, 88. Tliere are other exceptions to the rule, as to the performance of the decree, than those stated in the text ; as, for example, the party is not bound to perform any more of the decree than his adversary can show that he is bound to perform at the time when he seeks to bring a bill of review, and in regard to which he is in default. See Partridge v. Usborne, 5 Kuss. R. 195, 244 - 253, where the subject was most elaborately considered by Lord Lyndhurst. See also Griggs v. Gear, 3 Gilman, 2. ^ See Evans v. Clement, 14 Illinois, 206. » Dexter v. Arnold, 5 Mason, R. 311 ; Mellish v. Williams, 1 Vern. R. 166 ; O'Brien v. Connor, 2 Ball and Beatt. R. 146, 154. * Trulock V. Eobey, 15 Siifaons, 277. EQ. FL. 32 374 EQUITY PLEADINGS. [CH. Vm. that the correctness of the latter can be ascertained.^ [And in the American courts, where the English practice of reciting the proceedings in the decree does not prevail, the proceedings them- selves are the subject-matter of revision in a bill of review., to the same extent, and in the same manner, as if tliey were stated on the face of the decree, in conformity with the English practice.^] § 408. Where a decree has been affirmed in parliament, it may well be doubted, whether a bill of review for errors apparent upon the face of the decree can be brought ; for the highest appellate court has pronounced in effept, that it is not erroneous.^ The same objection does not apply, (as we shall presently see,) where the bill of review is for matter of new discovered evidence.* 1 Dexter u. Arnold, 5 Mason, K. 311, 312; Wya,tt, Pr. Keg. 98; Coombs w. Proud, 1 Ch. Cas. 54 ; S. C. 2 Freem. R. 182 ; HoUingsworth v. McDonald, 2 Harr. & John. R. 230 ; Webb v. Pell, 3 Paige, R. 368. The same point arose in the Supreme Court of the United States in Whiting v. Bank of United States, 13 Peters, K. 6, 13, 14. On that occasion, the court said: "It has also been suggested, at the bar,J:hatno bill of review lies for errors of law, except where, such errors are apparent on the face of the decree of the court. That is true in the sense in which the language is used in the English practice. In England, the decree always recites the substance of the bill, and answer, and pleadings, and also the facts on which the court founds its decree. But in America, the decree does not ordinarily recite either the bill, or answer, or pleadings ; and generally not the facts on which the decree is founded. But with us the bill, answer, and other pleadings, together with the decree, constitute what is properly considered the record. And, therefore, in truth, the rule in each country is precisely the same in legal effect ; although expressed in different language ; viz., that the bill of review must be founded on some error apparent in the bill, answer, and other pleadings and decree ; and that you are not at liberty to go into the evidence at large, in order to establish an objection to the decree, founded on the supposed . mistake of the court in its own deductions from the evidence.'' In Perry v. Phelips, 17 Ves. 178, Lord Eldon, speaking on this subject, said : " With regard to the other point, there is a great distinction between error in the decree and error apparent. The latter description does not apply to a merely erroneous judgment. And this is a point of essential importance ; as, if I am to hear this cause upon the ground, that the judgment is wrong, though there is no error ap- parent, the consequence is, that in every instance a bill of review may be filed; and the question, whether the cause is well decided, will be argued in that shape; not whether the decree is right or wrong on the face of it. The cases of error apparent, found in the books, are of this sort ; an infant not having a day to show cause, &c., not merely an erroneous judgment." S. P. Haig vj Homan, 8 Clark & Fin. R. 320. ^ Tomlinson v. McKaig, 5 Gill, 258. = Mitf. Eq. PI. by Jeremy, 88 ; Cooper, Eq. PI. 91, 92. * Post, § 418. §407-410.] BILLS OF REVIEW. 375 § 408 a. • A bill of review also lies only after a final decree ; for the court may, if the decree be only interlocutory, afterwards and before a final decree vary or rescind it. But a decree is final in the sense of the rule, which finally adjudicates upon all the merits of the controversy, and leaves nothing further to be done, but the execution of it. Thus, for example, a decree of foreclosure and sale, upon a bill brought by a mortgagee for a foreclosure and sale, (according to the practice in many states in America,) is final, and the sale is but in the nature of an execution.^ § 409. No persons, except the parties and their privies in repre- sentation, such as heirs, executors, and administrators, can have a bill of review, strictly so called.^ But other persons in interest, and in privity of title or estate, who are aggrieved by the decree, such as devisees, and remainder-men, are, as we shall presently see, entitled to maintain an original bill in the nature of a bill of review, so far as their own interests are concerned.^ Of course, no persons, but persons having an interest, are entitled to maintain a bill of review.* And even persons, having an interest in the cause, if not aggrieved by the particular errors assigned in the de- cree, cannot maintain a bill of review, however injuriously the de- cree may affect the rights of third persons.^ But with this excep- tion, it may be generally stated, that all the parties to the original bill ought to join in a bill of review.® § 410. A bill of review for errors, apparent upon the face of the record, will not lie after the time, when a writ of error could be brought ; for courts of equity govern themselves in this particular by the analogy of the common law in regard to writs of error.^ • Whiting V. Bank of United States, 13 Peters, R. 6, 15 ; Eay v. Low, 3 Cranch, 179 ; Jenkins v. Eldridge, 3 Story, R. 299. = Gilb. For. Rom. 184; Wyatt, Pr. Reg. 95 ; Slingsby v. Hale, 1 Ch. Cas. 122. The language of Gilbert, in For. Rom. 186, is very broad, and requires qualifica- tion. It is, " None but parties and privies, as heirs, executors, or administrators, can have this bill of review, since nobody else can be aggrieved by such a decree, because it can only be revived by such privies." Why may not a devisee be aggrieved, or a remainder-man ? ' Mitf. Eq. PI. by Jeremy, 92; Wyatt, Pr. Reg. 98, 100 ; Post, § 422 ; Turner V. feerry, 3 Gilman, 541 ; Singleton v. Singleton, 8 B. Monroe, 340. * Webb V. Pell, 3 Paige, R. 368. ' Thomas v. Harvie's Heirs, 10 Wheat. R. 146 ; Mitf. Eq. PI. by Jeremy, 205. » Bank of United States v. White, 8 Peters, R. 252. ' Smith V. Clay, Ambl. R. 645 ; S. C. 3 Bro. Ch. R. by Belt, 639, note ; Mitf. Eq. PI. by Jeremy, 88 ; Cooper, Eq. PI. 91 - 93 ; Wyatt, Pr. Reg. 97, 98 ; Lytton V. Lytton, 4 Bro. Ch. R. 441 ; Kelly v. Lennon, 1 Jones & La Touche, R. 305. 376 EQXJITJ PLEADINGS. [CH. VID. Hence, in England, where writs of error must be brpuglit within twenty years after a judgment, unless in certain cases of disabili- ties, the like limitation is adopted in courts of equity as to bills of review for errors, apparent on the face of decrees. For the same reason, in the courts of the United States, bills of review for er- rors, apparent upon the face of decrees, are limited to five years, tliat being the limitation of writs of error upon judgments at law.^ So, for the hke reason, a fine and non-claim for five years, if there has been no impediment to the rernedy, will be a bar to a bill of review respecting the same lands.^ § 411. Error in matter of form only, although apparent on the face of a decree, seems not to have been considered as a sufficient ground for reversing the decree. And matter of abatement has been also treated as not capable of being shown for error to re- verse a decree.^ § 412. Secondly. A bill of review may be brought upon the discovery of new matter ; such, for example, as the discovery of a release, or a receipt, which would change the merits of the claim, upon which the decree was founded.* But leave of the court must be obtained, before a bill of review can be filed on this ground ; which leave to file it will not be granted without an affidavit, that the new matter could not be produced or used by the party claim- ing the benefit of it in the original cause. The affidavit must also state the nature of the new matter, in order that the court may exercise its judgment upon its relevancy and materiality.^ [In New York it is held, that a bill of review cannot be brought after the time allowed by law, for appealing from the decree. Boyd v. Vanderkemp, 1 Barb. Ch. R. 273.] ' Thomas v. Harvie's Heirs, 10 Wheat. 146. [And see Massie v. Graham, 3 McLean, 41 ; GuUett v. Housh, 7 Blackf. 52 ; Kay v. Watson, 17 Ohio, 27. Where a bill of review was filed within five years from the day on which the de- cree sought to be reversed, was rendered, counting the time from the day of the rendition of the decree, and not from the first day of the term, and process was issued and returned to the next term of the court, it was held, in Ohio, that the bill was filed in season. Noland v. Urmston, 17 Ohio, 170.] " Cooper, Eq. PI. 91 ; Mitf. Eq. PI. by Jeremy, 250, 251. ' Mitf Eq. PI. by Jeremy, 85 ; Cooper, Eq. PI. 95 ; Hartwell v. Townsend, 6 Bro. Pari. R. 289 ; S. C. 2 Bro. Pari. K. 107, Tomlins.'s edit. ; Slingsby v. Hale, 1 Ch. Cas. 122; S. C. 1 Eq. Abridg. 169. . •* Cooper, Eq. PI. 91 ; Standish v. Eadley, 2 Atk. 178 ; Wyatt, Pr. Eeg. 98; Gilb. For. Ilom. 186, 187. ' Cooper, Eq. PI. 92 ; Mitf. Eq. PI. by Jeremy, 84 ; Gilb. For. Rom. 186-188; Wyatt, Pr. Reg. 95. §410-414.] BILLS OF REVIfiW. 377 § 413. Both of these considerations, to which the affidavit ap- plies, are indispensable. In the first place, the new matter must be relevant and material, and such as, if known, might probably have produced a different determination.^ In other words, it must generally be new matter, to prove what was before in issue, and not to prove a title not before in issue ; not to make a new case, but to establish the old one.^ In the next place, the new matter must have first come to the knowledge of the party, after the time when it could have been used in the cause at the original hearing. Lord Bacon's Ordinance says, in one part, it must be " after the decree." But that seems corrected by the subsequent words, " and could not possibly have been used at the time when the decree passed," which words point to the period of the publication of the testimony. And, accordingly, it is now the established exposition of the Ordinance, that the new matter shall not have been discov- ered imtil after publication has passed.^ § 414. In the next place, another qualification of the rule, quite as important and instructive, is, that the matter must not only be new, but it must be such, as the party, by the use of reasonable diligence, could not have known ; for if there be any laclies or negligence in this respect, that destroys the title to the relief.* ' Mitf. Eq. PI. by Jeremy, 84, 85 ; Wyatt, Pr. Reg. 95 ; Ord v. Noel, 6 Madd. R. 127; Blake v. Foster, 2 Molloy, R. 257; Wiser v. Blachly, 2 John. Ch. R. 488 ; Livingston v. Hnbbs, 3 John. Ch. R. 124. ' Dexter v. Arnold, 5 Mason, R. 303 ; Young v. Keighley, 16 Ves. 348, 354. But see Partridge v. Usborne, 5 Russ. R. 195. ' Dexter v. Arnold, 5 Mason, R. 303 ; Mitf. Eq. PI. by Jeremy, 84, 85 ; Ord V. Noel, 6 Madd. R. 127 ; Wiser v. Blachly, 2 John. Ch. R. 488 ; Livingston v. Hubbs, 3 John. Ch. R. 124. Lord Hardwicke is reported to have said, that the words of Lord Bacon are dark. But that the construction has been, that the new matter must have come to the knowledge of the party after publication passed. Patterson v. Slaughter, Ambl. R. 293 ; Norris v. Le Neve, 3 Atk. 25, 34. [If the newly-discovered evidence was known to the solicitor of the plaintiff in season to be used, but was not known to the plaintiff himself, a bill of review wiU not be granted. Greenlee v. McDowell, 4 Ired. Eq. 481.J * Dexter v. Arnold; 5 Mason, R. 312, 320, 321 ; Massiet;. Graham, 3 McLean, 41; Jenkins v. Prewitt, 7 Blackf. 329; Stevens u. Hey, 15 Ohio, 313; Hughes V. Jones, 2 Md. Ch. Dec. 293 ; Robinson v. Sampson, 26 Maine, 11 ; Bingham v. Dawson, Jacob, R. 243; Livingston v. Hubbs, 3 John. Ch. R. 124; Pendleton V. Fay, 3 Paige, R. 204; Ord v. Noel, 6 Madd. R. 127. That doctrine was ex- pounded and adhered to by Lord Eldon in Young v. Keighly, 16 Ves. 348, and was acted upon by Lord Manners, in Barrington v. O'Brien, 2 B. & Beatt. 140, and Blake v. Foster, 2 B. & Beatt. 457, 461. It was fully recognized by Mr. 32* 378 EQUITY PLEADINGS. [CH. Vni. § 415. It has been remarked by Lord Redesdale, that " It has been questioned, whether the discovery of new matter, not in issue in the cause, in which a decree has been made, could be the ground of a bill of review ; and whether the new matter, on which bills of review have been founded, has not always been new matter to be used as evidence to prove matter in issue, in some manner, in the original bill. A case, indeed, can rarely happen, in which new- matter discovered would not be, in some degree, evidence of mat- ter in issue in the original cause, if the pleadings were properly framed. Thus, if after a decree, founded on a revocable deed, a deed of revocation and new limitations were discovered ; as it would be a necessary allegation of title under the revocable deed, that it had not been revoked, the question of revocation would have been in issue in the original cause, if the pleadings had been properly framed. So, if, after a decree, founded on a supposed title of a person, claiming as heir, a settlement or will were discovered, which destroyed or qualified that title, it would be a necessary al- legation of the title of the person claiming as heir, that the ances- tor died seised in fee simple, and intestate. But if a case were to arise, in which the new matter discovered could not be evidence of any matter in issue in the original cause ; and yet clearly demon- strated error in the decree ; it should seem, that it might be used, as ground for a bill of review, if relief could not otherwise be ob- tained. It is scarcely possible, however, that such a case should arise, which might not be deemed in some ■ degree a case of fraud, and the decree impeachable on that ground. In the case, where the dovibt before mentioned appears to have been stated, the new matter discovered and alleged as ground for a bill of review, was a purchase for valuable consideration, without notice of the plain- tiff's title. This could only be used as a defence. And it seems to have been thought, that, although it might have been proper, under the circumstances, if the new matter had been discovered before the decree, to have allowed the defendant to amend his an- swer, and put it in issue ; yet it could not be made the subject pf a bill of review ; because it created no title paramount to the title of the plaintiff, but merely a ground to induce a court of equity Chancellor Kent, and received the sanction of his high authority in Wiser v. Blachly, 2 John. Ch. R. 488, and Barrow v. Rhinelander, 3 John. Ch. R 120. And in the very recent case of Bingham v. Dawson, 1 Jac. 243, Lord Eldon infused into it additional vigor. See, also, Hodson v. Ball, 11 Sim. R. 456, 463 ; S. C. 1 Phill. Ch. R. 182; Ante, § 338. § 415.] BILLS OF REVIEW. 379 not to interfere.^ And where a settlement had been made on a marriage in pursuance of articles, and the settlement following the words of the articles had made the husband tenant for life, with remainder to the heirs male of his body ; and the husband, claim- ing as tenant in tail imder the settlement, had levied a fine and devised to trustees, principally for the benefit of his son ; and the trustees had obtained a decree to carry the trusts of the will into execution against the son ; the son afterwards, on discovery of the articles, brought a bill to have the settlement rectified according to the ■ articles, and a decree was made accordingly.^ In this case, the new matter does not appear to have been evidence of mat- ter in issue in the first cause, but created a title adverse to that on which the first decree was made."^ * Young V. Keighly, 16 Ves. 348 to 355. ' Roberts v. Kingsley, 1 Ves. 238. ' Mitf. Eq. PI. by Jeremy, 85-87, and cases there cited : Gilb. For. Kom. 186. This subject, which seems involved in some difficulty, was a good deal investi- gated in the case of Dexter v. Arnold, 5 Mason, R. 313, where the court said: " Upon another point, there is not, perhaps, a uniformity of opinion in the authorities. I allude to the distinction taken in an anonymous case in 2 Freem. Rep. 31, where the chancellor said, ' that where a matter of fact was particularly in issue before the former hearing, though you have new proof of that matter, upon that you shall never have a bill of review. But where a new fact is alleged, that was not at the former hearing, there it may be a ground for a bill of review.' Now, assuming that under certain circumstances, new matter, not in evidence, that is, not in issue in the original cause, but clearly demonstrating error in the decree, may support a bill of review, if it is the only mode of obtaining relief ; still it must be admitted, that the general rule is, that the new matter must be such as is relevant to the original case in issue. Lord Hardwicke, in Norris v. Le Neve, 3 Atk. 33, 35, is reported to have admitted, that a bill of review might be founded upon new matter, not at all in issue in the former cause, which seems contrary to his opinion in Patterson v. Slaughter, Ambler, 293, or upon matter, which was in issue but discovered since the hearing. But the very point in 2 Freeman, 31, (if I rightly understajid it,) is, that a newly-discovered fact is ground for a bill ; but not newly-discovered evidence in proof of any fact already in issue. This seems to me at variance with Lord Bacon's Ordinance ; for it is there said, that there may be a review upon ' new matter, which hath arisen in time after the decree,' and also ' upon new proof, that has come to light after the decree made, and could not possibly have been used at the time when the decree passed.' It is also contrary to what Lord Hardwicke held in the cases cited from 3 Atk. 33, and Ambler, 293. Lord Eldon, in Young v. Keighly, 16 Ves. 348, 355, said : ' The ground [of a bill of review] is error, apparent on the face of the decree, or new evidence of a fact materially pressing upon the decree, and dis- covered at least after publication in the cause. If the fact had been known before publication, though some contradiction appears in the cases, there is no authority, g30 EQUITY PLEADINGS. [CH. Vm. § 416. The doctrine here asserted by Lord Eedesdale ?eems now to be fully confirmed ; a,nd it has been established, that mat- ter discoTcred after a decree has been made, although not capable of being used as evidence of anything, which was previously in issue in the cause, but constituting an entirely new issue, may yet be the subject of a bill of review, or of a supplemental bill in the nature of a bill of review.^ that new evidence would not be sufficient ground.' That was also the opinion of Lord Manners, in Blake v. Foster, 2 B. & Beatt. 457. Mr. Chancellor Kent, in Livingston v. Hubbs, 3 John. Ch. K. 124, adopted the like conclusion, and he seemed to think, that such new evidence must not be a mere accumulation of witnesses to the same fact ; but some stringent written evidence or newly-discov- ered papers. Gilbert, in his Forum Komanum, ch. 10, p. 186, leans to the same limitation ; for he says, that in bills of review, ' they can examine to nothing, that was in the original cause, unless it be matter happening subsequent, which was not before in issue, or upon matter of record or writing not known before ; for if the court should give them leave to enter into proofs upon the same points, that were in issue, that would be under the same mischief as the examination of wit- nesses after publication, and an inlet into manifest perjury.' There is much good sense in such a distinction, operating upon the discretion of the court in refusing a bill of review ; and I should be glad to know, that it has always been adhered to. It is certain, that cumulative written evidence has been admitted ; and even written evidence to contradict the testimony, of a witness. That was the case of Attorney-General v. Turner, Ambler, 587. Willan v. WiUan, 16 Ves. 72, 88, supposes, that new testimony of witnesses may be admissible. If it be admissible, (upon which I am not called to decide,) it ought to be received with extreme caution, and only when it is of such a nature as ought to be decisivfe proof. There is so much of just reasoning in the opinion of the Court of Appeals of Kentucky on this subject, that I should hesitate long before I should act against it." See also Respass v. McClanahan, Hardin's (Ky.) K. 342; Gilb. For. Eom. 186 ; and the doctrine of Lord Eldon in Young v. Keighly, 16 Ves. 354 ; Livingston v. Hubbs, 3 John. Ch. R. 124. The court has refused its leave to file a bill of review, where it would have been the means of introduc- ing an entirely new case, of the matter of which the plaintiff was sufficiently well apprised of to have been able, with the exertion of reasonable diligence, to have brought the same at first completely before the court. Young v. Keighly, 16 Ves. 348. And see Ord v. Noel, 6 Madd. 127, and Bingham v. Dawson, 1 Jac. E. 243, which, although cases relating to supplemental bills in the nature of bills of review, illustrate this principle. See also Ludlow v. Lord Macartney, 2 Bro. P. C. 67, Toml. edit.; Le Neve v. Norris, 2 Bro. P. C. 73, Toml. edit.; M'Neill V. CahiU, 2 Bligh, P. C. 228 ; Roberts u. Kingsley, 1 Ves. 238. If this last case is accurately reported, the bill seems to have been filed without the previous leave of the court ; and on the hearing, an inquiry was directed as to the fact of the discovery of the articles. See Young u. -Keighly, 16 Ves. 348. ' Partridge v. Usborne, 5 Russ. R. 195; Massie v. Graham, 3 McLean, 42. But see Young v. Keighly, 16 Ves. 354. §416-419.] BILLS OF REVIEW. 381 § 417. In the next place, there is another important qualifica- tion, which is indeed deducible from the very language of Lord Bacon 's Ordinance ; and that is, that the granting of such a bill of review for a new-discovered evidence, is not a matter of right, but it rests in the sound discretion of the court. It may, there- fore, be refused, although the facts, if admitted, would change the decree, where the court, looking to all the circumstances, shall deem it productive of mischief to innocent parties, or for any other cause unadvisable.'^ § 418. A bill of review upon new-discovered matter has been permitted even after an affirmance of the decree in parliament. As where, after a decree dismissing a bill, and which dismissal was affirmed in the House of Lords, a bill of review was brought for discovery of a deed, said to be burnt pending the appeal, which made out the plaintiff's title ; and the bill was in order that after such discovery, the plaintiff might apply to the Lords for relief; the defendant demurred to the bill ; but the demurrer was over- ruled, and the defendant ordered to answer. And a bill of review may be brought after one bill of review already filed ; as if upon a bill of review a decree has been reversed, another bill of review may be brought upon the decree of reversal.^ But, if a demurrer has been allowed to a bill of review, a new bill of review upon the same ground will not be allowed.^ § 419. We have already seen that a biU of review for error ap- parent on the face of the decree, must be brought within the same period, which limits writs of error at law.* The question may arise, whether the like limitation applies to bills of review upon new-discovered facts and evidence. There can be no doubt, that it will be a good bar, that the bill of review is not brought witliin ^ Bennett v. Lee, 2 Atk. 528 ; "Wilson v. Webb, 2 Cox, R. 3 ; Young v. Keigh- ly, 16 Ves. 348; Perry v. Phelips, 17 Ves. 176-178 ; Ord v. Noel, 6 Madd. R. 127 ; Partridge v. Usborne, 5 Euss. R. 245 ; Dexter v. Arnold, 5 Mason, R. 315 ; Thomas v. Harvie's Heirs, 10 Wheat. R. 146 ; Wood v. Mann, 2 Sumner, R. 316 ; Ante, § 412. See Hodson v. Ball, 11 Sim. R. 456, 463 ; S. C. 1 Phill. Ch. R. 177, 182 ; Ante,*! 338 ; Post, § 421 ; Massie v. Grant, 3 McLean, 41 ; P. & M. Bank V. Dundas, 10 Ala. 661 ; Taylor v. Taylor, 1 Mac. & Gord. 405. * Cooper, Eq. Pi. 92, and cases there cited ; Mitf. Eq. PI. by Jeremy, 88. But see Stafford v. Bryan, 2 Paige, R. 45. ' Mitf. Eq. PL by Jeremy, 88 ; Cooper, Eq. PI. 93 ; Dunny v. Filmore, 1 Vern. R. 135. * Ante, § 410. 382 EQUITY PLEADINGS. [CH. VIII. * the period limited for writs of error, after the discovery of the new facts or evidence. But the point, intended to be stated, is, whether any bill of review will lie after the lapse of that period, from the time of making the decree, although the bill of review is brought within the prescribed period after the discovery of the new facts or evidence. There does not seem to be any decision setthng the point ; and, as the allowance of a bill of review for new-dis- covered evidence is discretionary with the court, it is scarcely probable, that it will arise in judgment, as the lapse of time will always have great weight with the court in refusing the applica- tion, in connection with the other circumstances.^ § 420. Let us now consider the frame of a bill of review. In a bill of this nature, it is necessary to state the former bill, and-the proceedings thereon ; the decree, and the point, in which the party exhibiting the bill of review conceives himself aggrieved by it; and the ground of law, or matter discovered, upon which he seeks to impeach it.^ And if the decree is impeached on the latter ground, it seems necessary to state in the bill the leave obtained to file it, and the fact of the discovery.^ It has been doubted, whether, after leave given to file the bill, the fact of discovery is traversable. But this doubt may be questioned, if the defendant to the bill of review can offer evidence, that the matter alleged in the bill of review was within the knowledge of the party, who might have taken the benefit of it in the original cause.* The bill may simply pray, that the decree may be reviewed, and reversed in the point complained of, if it has not been carried into execu- tion.5 If it has been carried into execution, the bill may also pray the further decree of the court to put the party complaining of the former decree into the situation, in which he would have been, if that decree had not been executed.^ If the bill is brought to re- view the reversal of a former decree, it may pray that the original decree may stand.'' The bill may also, if the original suit has be- ^ The point was before the Supreme Court in Thomas v. Harvie's Heirs, 10 Wheat. R. 146, 151 ; but the court left it undecided. See also Mitf. Eq. PI. by Jeremy, 88 ; Cooper, Eq. PL 92, 93. ' Mitf. Eq. PL by Jeremy, 88, 89 ; Cooper, Eq. PI. 95. ' Ibid. • Ibid. ' Ibid. • Ibid. ' Mitf. Eq. PI. by Jeremy, 88 - 90, and cases there cited ; Cooper, Eq. PI. 95 ; Dexter v. Arnold, 5 Mason, R. 308, 309. In Dexter v. Arnold, 5 Mason, R. 308, 309, the Court, upon the hearing of the petition for leave to file a bill of review, allowed the adverse party to file counter affidavits. On that occasion, the court §419-421] BILLS OF REVIEW. » 383 come abated, be at the same time a bill of revivor.^ A supple- mental bill may likewise be added, if any event has happened, which requires it ; and, particularly, if any person, not a party to the original suit, becomes interested in the subject, he must be made a party to the bill of review by way of supplement.^ It may be added, that all the parties to the original bill ought to be made parties to the bill of review ; for it is a principle of natural justice, that no one ought to be affected by any decree without his first being heard.^ § 421. Thirdly ; bills in the nature of bills of review. It has been already stated, that the only distinction between bills of re- view, and bills in the nature of bills of review, consists in the en- rolment or non-enrolment of the decree. In the former case, a bill of review is proper ; in the latter case, a bill in the nature of a bill of review.* As, however, a decree not signed and enroled, said : " This course, though not very common, is, as I conceive, perfectly within the range of the authority of the court ; and may be indispensable for a just ex- ercise of its functions, in granting or withholding the review. If, indeed, it were- doubtful, in case the bill of review should be allowed, whether the defendants could by plea or answer traverse the allegation in such bill, that the matter of fact is new, I should not hesitate to inquire in the most ample manner, into the truth of such allegation, before the bill was granted, in order to prevent gi-oss injustice. But as every such bill of review must contain an allegation, that the matter of fact is new, it seems to me clear, upon principle, that, as it is vital to the relief, it is traversable by plea or answer, and must be proved, if not admitted at the hearing. In Hanbury v. Stevens, (1 784,) cited by Lord Kedesdale, (Redes. Eq. PI. 80, 3d ed. 70 ; Id. 4th ed. by Jeremy, 89,) the court is reported to have held that doctrine. The case of Lewellen v. Mackworth, 2 Atk. R. 40, and Barnard, Ch. R. 445, though very imperfectly, and, as I should think, inaccurately report- ed, seems to me to support the same conclusion. It has been relied on by the best text-writers for that purpose. Lord Redesdale, in his original work on Equity Pleadings, (Redes. Eq. PI. 80, 2d-edition,) stated the point as one which may be doubted. But upon principle I cannot see how that can well be. And in the last edition (the third) revised by his lordship, I find that he has ques- tioned the propriety of such a doubt." See also Hanbury v. Stevens, cited in note (k) to Mitf. Eq. PI. by Jeremy, 89. 1 Ibid. ' Mitf Eq. PI. by Jeremy, 88 - 90 ; Hodson v. Ball, 11 Sim. R. 456, 463 ; S. C. 1 Phill. Ch. R. 182 ; Ante, § 335 ; Post, §420. ' Cooper, Eq. PI. 95. * Ante, § 403 ; Cooper, Eq. PL 88 ; Mitf. Eq. PI. by Jeremy, 90 ; Standish v. Radley, 2 Atk. 178 ; Wyatt, Pr. Reg. 96 ; Wiser v. Blachly, 2 John. Ch. R. 488 ; Smith V. Clay, 3 Bro. Ch. R. by Belt, 639, note ; S. C. Ambler, R. 645 ; Green- wich Bank v. Loomis, 2 Sandf. Ch. R. 70. This is not merely a formal distinc- 384 . EQUITY PLEADINGS. [CH. VID. may be altered or reversed upon a rehearing, withouf the assist- ance of a bill in the nature of a bill of review, if there is sufiBoient tion ; but in many cases it is connected with the rights of the party. Thus, although a bill of review lies for errors of law apparent on the face of a decree, yet it has never been decided, that a bill in the nature of a bill of review, lies in such a case ; for the proper remedy may be had by a rehearing. In Perry v. Phelips, 17 Ves. 178, Lord Eldon used the following language : " I further doubt, upon this case, whether a bill in nature of a bill of review can be filed upon matter of law. Where the decree has been enrolled, there are two grounds of review : error apparent ; and new facts, or facts newly discovered. In the first case, the plaintiff has a right to file a bill of review ; in the two latter cases, he must have the leave of the court. Where the objection is upon matter of law apparent, or a mistake in law, to be collected from all the pleadings and evi- dence, the decree not being signed and enrolled, it is the subject of a rehearing; and there is no occasion for a bill in nature of a bill of review, unless a supple- mental bill is also necessary to introduce new facts; in which case the cause will come on to be heard upon the matter of that supplemental bill, together with a rehearing of the original cause. And the court will vary the decree upon the rehearing ; taking into consideration the new, or lately discovered facts. But I apprehend, there is no instance of a bill in nature of a bill of review upon error ■apparent." Hodson v. Ball, 1 Phill. Ch. K. 177, 181. In this last case, Lord Lyndhurst said : " The original bill was, as far as related to three of the defend- ants, a bill calling on them, eis executors and trustees, to account ; and an ac- count was decreed against them in the common form. The supplemental bill stated, that after the decree had been carried into the master's office, it was di^ covered, for the first time, that the trustees had greatly misconducted themselves in the management of the affairs of the trust, and it accordingly prayed, that they might account for what, except for their wilful neglect and default, might have come to their hands. So that the decree prayed for by the supplemental bill, was essentially different from the decree pronounced by the vice-chancellor upon the original bill. On this ground it was insisted that the bill ought to be taken off the file, it having been filed without the permission of the court. In answer to that it was said, that the bill was not a supplemental bill in the nature of a bill of review, but a supplemental bill in aid of a decree ; and a passage from Mitford's Treatise on Pleading was referred to, in which it is stated, that a supplemental bill may be filed in aid of a decree, in order that it may be carried fully into execution. 2Sfow there is no doubt of the correctness of that position, , but the question is, what is the province of a supplemental bill in aid of a decree ? I apprehend that a supplemental bill in aid of a decree cannot vary the principle of the decree. Its province is, to carry out the principle of the decree ; to give full and complete effect to the decree, as it exists. The instance that is gener- ally given of a supplemental bill in aid of a decree, is of this description ; where there has been a decree to account, but drrections have not been suflSciently given as to the manner of accounting, and a further decree is therefore required for the purpose of supplying this defect, that is, of carrying into full effect the original decree. In the case that was cited, of Dormer v. Fortescue, 3 Atk. 124, Lord Hardwicke states, what seems to be the foundation of the passage in Mit- § 421.] BILLS OF REVIEW. 385 matter to alter or reverse it, appearing upon the former proceed- ings, the new investigation of tlie decree must be, or at least usu- ally is, brought on by a petition for a rehearing, when there is no defect to be supplied.^ [But an application for a rehearing, must ford, ' that supplemental bills are often brought even in aid of a decree of this court'; and he illustrates that by the case to which I have referred, for he says, ' as in a decree to account for want of full directions before ' ; and the very case of Dormer v. Forteseue, seems to be a case of that description, because, there, the original decree had established the title, but there was a doubt, whether the court would be justified in founding on that decree and on the existing record, an order that the party should account for the rents and profits from the time when the title of the pleiintiff had accrued ; and, for the purpose of supplying that sup- posed omission, the supplemental bill was filed. Lord Hardwicke was of opinion, that the proceedings were sufficient, but. supposing, he said, that they were not, the supplemental bill had rendered them sufficient. Now that was strictly a supplemental bill for the purpose of carrying out and accomplishing the original decree, and the object of it, not for the purpose of varying the principle of the decree ; and, therefore, I apprehend, the distinction is that which I have stated, — that a supplemental bill in aid of a decree is not a supplemental bill that seeks to vary the principle of the decree, but one which takes the principle of the decree as the basis, and seeks merely to supply any omission which there may be in the decree, or in the proceedings, so as to enable the court to give full effect to its decision. Now the decree prayed for in this case is quite contrary to the principle of the original decree. The original decree was merely for a common account. The supplemental bill prays for an account of quite a differ- ent nature and character, founded on the wrongful conduct of the parties ; for it calls upon them to account, not for what they have received or what has come to their hands, or to the hands of others for their use, but for what they might have received, had it not been for their wilful default. This, therefore, cannot be con- sidered as a supplemental bill in aid of a decree, because it proceeds upon a principle quite different from that of the original decree. It does not seek to carry out that decree ; it is not in furtherance of that decree, but for the accom- plishment of quite a different object ; and I think the plaintiff himself has pro- nounced his own opinion of the nature of the bill upon the very face of the bill itself, for he has introduced an averment, that the supplemental matter has been discovered since the original decree was pronounced, — an averment which is necessary for the purpose of supporting a supplemental bill in the nature of a bill of review, but which is not required in a supplemental bill in aid of a de- cree." Ante, 338, 351 a;, Post, § 422. 1 Mitf. Eq. PI. by Jeremy, 90, 91 ; Cooper, Eq. PI. 89, 93 ; Gilb. For. Kom. 183; Wyatt,.Pr. Reg. 96, 99; Standish v. Radley, 2 Atk. 178; Moore v. Moore, 2 Ves. 598 ; Perry v. Phelips, 17 Ves. 173, 176, 178 ; Pendleton v. Fay, 3 Paige, R. 204 ; Wiser v. Blachly, 2 John. Ch. R. 488. The following note from Mitf. Eq. PI. by Jeremy, 90, may be here usefully cited : " The rehearing, which is thus far alluded to, not being sought in respect to any new matter, is obtained upon certificate of counsel, (18 Ves. 325,) by a petition merely, which EQ. PL. 33 386 EQUITY PLEADINGS. [CH. Vm. usually state some reasons, which -would constitute good ground for a new trial at common law.^] states tlie case as brought before the court, when the decree was made, (Wood V. Griffith, 1 Meriv. 35) ; and the grounds, on which the rehearing is prayed, (1 Soh. & Lef. 398.) And here it may not be improper to notice, that the court will not, without consent, (3 Swanst. 234,) vary a decree after it has been passed and entered, except as to mere clerical errors, (Lane v. Hobbs, 12 Ves. 458! Weston V. Haggerston, Coop. R. 134 ; Hawker v. Duncombe, 2 Madd. R. 391 ; 3 Swanst. 234 ; Tomlins v. Palk, 1 Russ. R. 475) ; or matters of course, (Pickard v. Mattheson, 7 Ves. 293 ; Newhouse v. Mitford, 12 Ves. 456) ; unless upon a peti- tion of rehearing or upon a bill of review, or bill in the nature of a bill of review, (4 Madd. 32 ; Grey v. Dickenson, 4 Madd. 464 ; Brackenbury v. Brackenbury, 2 Jac. & Walk. 391 ; Willis v. Parkinson, 3 Swanst. 233 ; Brookfield v. Bradley, 2 Sim. & Stu. 64 ;) according as the decree has, or has not, been signed and en- rolled ; and as it is sought to have the case reheard as originally brought before the court, or accompanied with new matter.'' Though the court generally leaves the question of rehearing to the certificate of counsel, it reserves never- theless its power and jurisdiction, and will, under certain circumstances, sustain an application to take the petition off the file. Gwynne v. Edwards, 9 Beavan, R. 22. But where a person not a party to the suit, is desirous of obtaining a rehearing, he must apply for leave to present a petition to rehear. Ibid. In some caSes a rehearing will be allowed by the court, notwithstanding the appli- cation for the rehearing is made after the ordinary time allowed for the pur- pose ; as, for example, where a decree not final in its nature, or which has been only partially acted on, is radically erroneous, so that upon an appeal it would be reversed. Ackland v. Braddick, 3 Younge & Coll. 237. The English prac- tice with regard to rehearings has not found favor in the United States. In Jenkins v. Eldredge, 3 Story, 299, the court said as follows : " But I desire to say a few words on this occasion, as to rehearings of equity causes, in this court, upon the original evidence. They have been exceedingly rare in this court, I admit, as, in my judgment, they ought to be, unless some plain, and obtious, and palpable error, or omission, or mistake, in something material to the decree, is brought to the notice of the court, which had before escaped its attention. But if a rehearing were to be granted upon the mere certificate of counsel, who had argued the cause, that, in their judgment, the decree was erroneous, (a certificate, which, with great sincerity and readiness, would almost always be given by the counsel,) it is obvious, that in the great mass of equity causes of a difficult and important nature, in this court, depending upon conflicting views of law, and also upon conflicting, and often, irreconcilable evidence, a rehearing would be almost a matter of course ; and considering the vast time occupied in hearing such causes, there would be little time left for the court to devote itself to any other business, and the other suitors in the court would suffer the most oppressive delays, and often, the most irremediable injustice. Besides ; it is no small recom- mendation of our practice, that it thereby requires, in the first instance, on the part of counsel, a thorough examination and preparation for the hearing; and on ^ Hunter v. Marlboro, 2 Woodb. & Mih. 168. §421-4216.] BILLS OF REVIEW. 387 [§ 421 a. In ordei^ to determine whether a bill is a bill of re- Tiew, or a supplemental bill in the nature of a bill of review, and therefore requiring the leave of the court before it can be filed, the first question is whether it is inconsistent with or impeaches the decree to which it refers, and one test of this is, whether if the de- cree had not been referred to in the bill, it could have been plead- ed in bar to the relief prayed.^] [* 421 b. Where an original bill was brought which sought to the part of the court, a most solicitous and exact study of the whole cause, before the judgment is pronounced. The other course would encourage inattention or indifference, and induce the counsel, as well as the parties, to speculate upon contingencies, and to argue the cause at large, only, when the court had deliv- ered the result of its opinion. On all these accounts, it has been the constant habit of the Supreme Court of the United States, to refuse rehearings of any cause, after it has once pronounced its own judgment, whatever might be the conflicts in the evidence, or the differences among the judges themselves, as to the merits of the controversy. I am aware of the English practice on this subject. It has guards, which do not, and cannot, exist here, where the counsel and the client are brought into immediate and constant contact with each other. But such as is the practice in England, it is a source of almost infinite delays and inconveni- ence ; and under a chancellor, like Lord Eldon, whose mental constitution led him to cherish interminable doubts, and to court reljearings, it must be a source of irreparable mischiefs, and sometimes of unmitigated ruin. I have no desire to introduce such a practice into this court. When a cause has been once fully argued in this court, and an ^appeal lies from its decree, there is, ordinarily, no reason for a rehearing here upon the original evidence ; and if such a practice is to be introduced, it must be by the will and judgment of some one, who shall succeed me. If rehearings are to be had, until the counsel on both sides are entirely satisfied, I fear, that suits would become immortal, and the decision be postpones indefinitely. See also, Emerson v. Davies, 1 Woodb. & Min. 21. Thompson v. Goulding, 5 Allen, 81. \} Taylor v. Taylor, 1 Mac. & Gord. 397. This was a suit on behalf of infants against the tenant for life and three trustees, in respect of a breach of trust. The bill being taken pro confesso, a decree was made against the trustees for the pay- ment of a large sum in respect of the breach of trust. One of the trustees who ■was abroad and in contempt for the non-performance of the decree, filed a second bill against the plaintiffs and the other defendants in the first suit, recognizing the decree in that suit, but (besides other things which were clearly not incon- sistent with the decree), seeing, on the ground of fraud and collusion between the tenant for life and his co-trustees, to make the interest of the tenant for life available for the purpose of reimbursing him, the plaintiff, the liability with which he had been fixed, as he alleged, through the active agency of the tenant for life. It was held, by Lord Chancellor Cottenham, that such a bill could not be regarded as a bill of review, or as a supplemental bill in the nature of a bill of review. See also Bainbrigge v. Baddeley, 2 Phillips, 705.] 388 EQUITY PLEADINGS- [CH. VIII. revise a former proceeding and decree, between the same parties, on the ground, that the former decree was obtained by fraud, and it appeared, that the defendants had in their answer concealed cer- tain facts from the plaintiff and the court, but which might have been elicited by exceptions ; it was held not such a fraud as to justify an original bill, without leave of the court, to review the decree. It was also said, that a bill of review must state, on the face of it, that it was filed by leave of court, or it will be demur- rable, and that it is not necessary to state the grounds of the de- murrer upon the record, but they may be stated, ore tenus, at the liearing.^ § 421 c. The subject of bills of review is considerably discussed in the late case of Winchester v. Winchester,^ where it is held, that the two causes for such bills, viz., new matter and error in law, may be joined ; that knowledge of the existence of such new matter before the former hearing by the representative of the party, is knowledge in the party ; and that the allowance of a bill of review for new matter rests in the discretion of the court, and can only be filed by special leave.] § 422. The true office of this sort of bill, as now used, is to bring before the court new matter, discovered since publication in the original cause, when the decree has not been signed and en- rolled.3 In such a case the new matter, is brought forward by a supplemental bill, or a new bill in the nature of a bill of review ; and it ought to be accompanied by a petition to rehear the original cause at the same time, that it is heard upon the supplemental bill.* Such a supplemental bill cannot be filed without the leave of the court, nor without an affidavit similar to that required in [* ' Henderson v. Cook, 4 Drew. 306. A bill to impeach a decree for fraud is an original bill in the nature of a bill of review. Ex parte Smith, 34 Alabama, 455. ^ 1 Head. 460. The new matter must be such as in the opinion of the court will be likely to change the result. Mitchell v. Berry, 1 Met. (Ky.) 602. The subject of bills of review, is here extensively discussed. A bill of review, without alleging new facts, does not justify the court in reviewing the finding of facts upon the former evidence. Garrett v. Moss, 22 Illinois, 363.] ' Moore V. Moore, 2 Ves. 696, 598 ; S. C. 1 Dick. 66 ; Beam. Ord. in Chan. 366-368 and note ; Wyatt, Pr. Eeg. 96, 98, 99 ; Perry v. Phelips, 17 Ves. 176- 178 ; Pendleton v. Fay, 3 Paige, K. 205 ; Mitf. Eq. PI. by Jeremy, 91, 92; Post, § 425 ; Hodson v. Ball, 1 PhiU. Ch. K. 177, 181 ; Ante, § 338, 351 6. ' Ibid.; Hodson v. Ball, 11 Simons, R. 456 ; S. C. 1 PhiU. Ch. R. 182; Ante, § 338, 351 a, 420, note. § 421 6- 423 o.] BILLS of review. 389 the like case of a bill of review.^ If necessary, a bill of review may also bp incorporated into such a supplemental bill.^ And where a different kind of relief is sought, or a different principle from that, on which the original decree is given, there it must be sought by a supplemental bill, in the nature of a bill of review.^ § 423. It seems to me to be a general rule, that a supplemental bill for new-discovered matter, should be filed as soon after the new matter is discovered, as it reasonably may be.* If, therefore, the party proceeds to a decree after the discovery of the facts, upon which the new claim is founded, he will not be permitted afterwards to file a supplemental bill in the nature of a bill of review, founded on those facts ; for it was his own laches not to have brought them forward at an earlier stage of the cause.^ § 428 a. But the laches of the defendant may alter the case. After a bill for the specific performance of an agreement against a railroad company had been dismissed for want of evidence, the plaintiffs on an afl&davit of having recently discovered that the agreement had been recognized by a resolution passed at a meet- ing of the company, applied for leave to file a supplemental bill, in the nature of a bill of review, for the purpose of making the resolution a part of their case. The court, although of opinion that the plaintiffs might with due diligence have made the discov- ery soon enough to have availed themselves of it in the original suit, nevertheless granted the motion on the ground that if the de- fendants had entered the resolution in their books, which had been produced in court, as they ought to have done, according to the terms of their act of incorporation, the consequence of any want of care and attention on the part of the plaintiffs, or their agents, would have been obviated.® * Cooper, Eq. PI. 93, 94 ; Pendleton v. Fay, 3 Paige, R. 205 ; Wyatt, Fr. Reg. 99; Mitf. Eq. PL by Jeremy, 91; Hodson v. BaU, 1 Phill. Ch. R. 177, 181. As to when this objection may be insisted on. Toulmin v. Copland, 4 Hare, R. 41. " Wyatt, Pr. Reg. 99 ; Ferry v. Fhelips, 17 Ves. 176, 178 ; Pendleton v. Fay), 3 Paige, R. 208. » Hudson V. Ball, 11 Sim. R. 456 ; S. C. 1 Phill. Ch. R. 177, 182 ; Ante, § 338, 351 a, 420, note. * Ante, § 337 a, 370 a. ' Pendleton v. Fay, 3 Paige, R. 205 ; Bingham v. Dawson, Jac. R. 243 ; Ord V. Noel, 6 Madd. R. 127 ; Dias v. Merle, 4 Paige, R. 259 ; Ante, § 337, 370 a. * Sheffield Canal Co. v. Sheffield Railway Co. 1 PhiUips, R. 484. 33* 390 EQUITY PLEADINGS. [CH. VIII. § 424. If a decree has been made against a person, who had no interest at all in the matter in dispute, or who had not such an interest as was sufficient to render the decree against him binding upon some person, claiming the same or similar interest, rehef may be obtained against the error in the decree by a supplemental bill in the nature of a bill of review, as has been already men- tioned in treating of supplemental bills.^ Thus, where a bill was filed by a vicar for tithe of lead against a parish, and four parish- ioners were named defendants, and a decree was made against them ; and one who claimed under none of them, contested the decree ; the court allowed him to have a bill, of review .^ If a de- cree is made against a tenant for life only, a remaindBr-man in tail, or in fee, cannot defeat the proceedings against the tenant for life, but by a bill, showing the error in the decree, the incompe- tency of the tenant for life to sustain the suit, and the accruer of his own interest ; and thereupon praying, that the proceedings in the original cause may be reviewed, and that, for thai purpose, the other party may appear to and answer this new bill, and that the rights of the parties may be properly ascertained.^ A bill of this nature, as it does not seek to alter a decree made against the plain- tiff himself, or against any person, under whom he claims, maybe filed withoiit leave of the court being first obtained for that pur- pose.* § 425. A supplemental bill in the nature of a bill of review, nearly resembles in its frame a bill of review, except that, instead of praying, that the former decree may be reviewed or reversed, it prays, that the cause may be heard with respect to the new matter made the subject of the supplemental bill, at the same time that it is reheard upon the original bill ; and that the plaintiff may have such relief as the nature of the case, made by the supplemental bill, requires.^ It should, also, state the circumstances positively, which entitle the party to file it, viz., that the decree has not been enrolled, and not merely state them in the alternative, praying one sort of relief, as upon a bill of review, if the decree has been en- 1 Ante, § 338. ^ Brown v. Vermuden, 1 Ch. Cas. 272. ' Cooper, Eq. PI. 94, and cases there cited; MItf. Eq. PI. by Jeremy, 92; Brown v. Vermuden, 1 Ch. Cas. 272; Osborne v. Usher, 6 Bro. Pari. E. by Tomlins, 20 ; S. C. 2 Bro. Pari. K. 314. * Ibid.; see Ante, § 421. ° Mitf. Eq. PI. by Jeremy, 91, 92 ; Cooper, Eq. PL 96. §424-426.] BILLS IMPEACHING DECREES. 391 rolled, and if not enrolled, then to have the benefit of it, as upon a supplemental bill in the nature of a bill of review.' § 426. Fourthly ; bills impeaching decrees for fraud. A bill of this sort is an original bill in the nature of a bill of review.^ There is no doubt of the jurisdiction of courts of equity to grant relief against a former decree, where the same has been obtained by fraud and imposition ; for these will infect judgments at law and decrees ^ The remarks of Lord Eldon in Perry v. Phelips, 17 Ves. 176-178, on this whole subject, are so very important, that, though long, I cannot omit to bring ' them before the reader, as they explain the text, and also illustrate the princi- ples of pleading in this case. " There is no objection," said he, " to this bill, as being on the face of it a bill of review and a bill of revivor and supplement ; as, in some cases, the bill must of necessity be both a bill of review and a bill of re- vivor ; and in some, a bill of supplement also, in addition to those two descrip- tions. Admitting that there is not much difference between a bill of review and a bill in nature of a bill of review, 1 have considerable doubt upon this bill ; whether the plaintiff must not, as far as he seeks relief, determine, that his bill shall be either a bill of review, or a bill in nature of a bill of review ; and, I apprehend, I should let in a mischievous practice, by not requiring him to make that determination, whether his cause should be treated as introduced by a bill of the one or the other description. If it is competent to a plaintiff, not filing a bill of review, together with a bill of revivor and supplement, in order to have the relief, which may be obtained by such a bill, but stating, that he will not deter- mine, whether there is error apparent -in the decree, contending that there is ; but, in case it shall not prove so, electing in his prayer to make it a mere bill of revivor, or supplement, or both, the consequence is, that all the protection against a bill of review, founded on error apparent in the decree, is gone by the effect of that alternative prayer. In the case of newly-discovered facts, the leave of the court must be obtained, which gives protection. But this difficulty occurs from putting the case in the alternative, that the defendant can neither plead nor demur. He must be brought to a hearing, and may incur all the vexation of a suit, whether it shall turn out to be a bill of review or not. Upon these grounds, I have considerable doubt whether the plaintiff can put in his case in the alter- native, as a bill of review ; or if the court shall think it not so, then as a bill of revivor and supplement. There is this difference between a bill of review and a supplemental bill in nature of a bill of review ; in the former, if introducing also matter of supplement or revivor, the prayer, as far as it is a bill of review, is, that the decree may be reviewed and reversed : in the other, adopting also the proper prayer for revivor, as to the supplemental matter, you pray that the cause may be reheard. In that respect, also, I doubt whether this is an ac- curate record in not stating positively the fact, whether the decree is enrolled or not. If it is enrolled, the bill is a bill of revivor, strictly speaking ; if not, it is a bill in nature of a bill of review ; and then, according to Lord Redesdale, the plaintiff, stating mat there is error in the decree, prays that the cause may be reheard." " Mussell V. Morgan, 3 Bro. Ch. E. 79. 392 EQUITY PLEADINGS. [CH. VIH. of all courts ; but they annul the whole in the consideration of courts of equity. This must be done by an original bill; and there is no instance of its being done by petition ; although it seems once to have been thought, that a decree, as well as any interlocutory order, could be set aside for fraud by petition only. Where a decree has been so obtained, the court will restore the parties to their former situation, whatever their rights may be. This kind of bill may be filed without leave of the court being first obtained for the purpose, the fraud used in obtaining the decree being the principal point in issue, and being necessary to be estab- lished by proof, before the propriety of the decree can be investi- gated.^ § 427. A decree obtained without making those persons parties to the suit, in which it is had, whose rights are affected thereby, is fraudulent and void as to those parties.^ And even a purchaser ' Cooper, Eq. PI. 96 - 98, and cases there cited ; Mitf. Eq. PI. by Jeremy, 92-94; Kennedy u. Daly, 1 Sch. & Left. 355, 374,375; Barnesley u. Powell, 1 Ves. 120 ; Richmond v. Tayleur, 1 P. WUl. 736, 737. In Sheldon v. Fortescue Aland, 3 P. Will. 1 1 1, the Lord Chancellor (King) said : " I admit even a decree, much more an interlocutory order, if gained by collusion, may be set aside on a petition ; a fortiori may the same be set aside by a bill." This doctrine was probably intended to apply to a case, where the decree had not been enrolled, and where the act of fraud could not be controverted. Mitf. Eq. PL by Jeremy, 92, note (o.) In Mussell v. Morgan, 3 Bro. Ch. R. 74, 79, Lord Thurlow ex- pressly overruled the doctrine in 3 P. Will. Ill, saying: "There was no instance hitherto of its being done ; and that he could not see a reason why it should not be by an original bill in the nature of a bill of review. Either there is enough before the court already to act upon, or not. If there is, it may be done by a rehearing ; if not, the new matter must be brought before the court " ; that is, by an original bill in the nature of a bill of review. See also Cooper, Eq. PI. 96, note (o) ; Bennett v. Hamill, 2 Sch. & Lefr. 576. Where a decree has been en- rolled by surprise, the plaintiff intending to move for a rehearing, and notice thereof having been given to the adverse party, the court will set aside the en- rolment. Stevens v. Guppy, 1 Turn. & Russ. 1 78. 2 Cooper, Eq. PI. 96 - 98, and cases before cited. Mr. Cooper (Cooper, Eq. PI. 98) has placed the case of Coker v. Bevis, 1 Ch. Cas. 61, under this head, as a case of fraud in obtaining a decree. The decree does not seem to have put the relief granted upon the ground of fraud ; but upon the ground that the original decree for a foreclosure, unless the money was paid at a certain time, had not been compiled with, from circumstances of inevitable necessity, and without wilful default; and that, therefore, the defendant ought to have the time for payment of the mortgage-money enlarged, notwithstancling the decree had by lapse of time become absolute. Lord Redesdale has treated this case, as not so much founded in fraud, as on its own special circumstances. See Mitf. Eq. PI. by Jeremy, 94, and note (i) ; Alexander v. Slavens, 7 B. Munroe, 351. §426 -428 a.] bills impeaching decrees. 393 under it, having notice of tlie defect, is not protected by such a decree ; for otherwise the decree of a court of equity might be used as an engine for the purpose of eifecting the grossest fraud.^ And, therefore, wliere a decree has been made against a trustee, tlie cestui que trust not being before tlie court, and the trust not dis- covered ; or where a decree has been made against a person, who has made some conveyance or incumbrance not discovered ; or where a decree has been made in favor of or against an heir, when the ancestor has in fact disposed by will of the subject-matter of the suit ; the concealment of the trust, or subsequent conveyance, or incuinbrance, or will, in these several cases, ought to be treated as a fraud.2 It has been also said, that where an improper decree has been made against an infant, although the same were not gained by fraud or collusion, or surprise, it ought to be inipeached by original bill ; and the infant, aggrieved by it, need not stay till he is of age ; but he may apply to reverse it, as soon as he thinks fit. § 428. A bill to set aside a decree for fraud, or upon any of the above grounds, must state the decree, and the proceedings which led to it, with the circumstances of fraud, or whatever the ground may be, on which it is impeached. The prayer must necessarily be varied according to the nature of the fraud, or improper means used, and the extent of their operation in obtaining an improper decision of the court.^ § 428 a. Fifthly ; bills to suspend or avoid the operation of de- crees. In the enumeration of the varieties of bills, this class has been already mentioned.* It is proper, therefore, to refer to them in this place, though they are of rare occurrence, and depend on special circumstances of a peculiar nature. The following instance is given by Lord Redesdale : " During the troubles after the death of Charles the First, upon a decree for a foreclosure in case of non-payment of principal, interest, and costs, due on a mortgage, the mortgagor at the time of payment being forced to leave the kingdom to avoid the consequences of his engagements with the royal party, and having requested the mortgagee to sell the estate • Cooper, Eq. PI. 96 - 98. " Ibid. ' Cooper, Eq. PI. 98, and cases there cited ; Mitf. Eq. PL by Jeremy, 94 ; Gif- fard V. Hort, 1 Sch. & Lefr. 386 ; Kennedy v. Daly, 1 Sch. & Lefr. 355, 374, 375. * Ante, § 388. 394 EQUITY PLEADINGS. [CH. VHI. to the best advantage and pay himself, which the mortgagee ap- , peared to have acquiesced in ; the court, upon a new bill, enlarged the time for performance of the decree, upon the ground of the in- evitable necessity which prevented the mortgagor from complying with the strict terms of it, and also made a new decree on the ground of the matter subsequent to the former decree." ^ § 429. Sixthly ; bills to carry decrees into execution. Some- times, from the neglect of parties, or some other cause, it becomes impossible to carry a decree into execution without the further de- cree of the court. This happens, generally, in cases where parties having neglected to proceed upon the decree, their rights under it become so embarrassed by a variety of subsequent events, that it is necessary to have the decree of the court to settle and ascertain them. Sometimes, such a bill is exhibited by a person who was not a party ; or who does not claim under any party to the origi- nal decree ; but who claims in a similar interest ; or who is unable to obtain the determination of his own rights, till the decree is carried into execution. Or, it may be brought by or against any person, claiming as assignee of a party to the decree.^ § 430. The coiirt in these cases, in general, only enforces, and does not vary the decree. But upon circumstances it has sometimes reconsidered the original directions, and varied them in case of mistake.^ And it has even, on circumstances, refused to enforce the decree ; although, in other cases, the court, and the House of Lords, upon an appeal, seem to have considered that the law of the decree ought not to be examined on a bill to carry it into execution.* § 431. Such a bill may also be brought to carry into execution • Mitf. Eq. PI. by Jeremy, 94; Cocker v. Bevis, 1 Ch. Cas. 61. See also Venables v. Foyle, 1 Ch. Cas. 3. Whorewood v. Whorewood, 1 Ch. Cas. 250; Wakeliu v. Walthal, 2 Ch. Cas. 8. Lord Kedesdale, after citing these cases, says : " The embarrassments oGcasioned by the civil war in the reign of Qharies I., and the state of affairs after his death, before the restoration of Charles H., occasioned many extraordinary applications to the court of Chancery for relief, and perhaps induced the court to go far in extending reUef ; but there were many cases of extreme hardship in which it was deemed impossible, consistently with established principles, to give relief; and all cases determined soon after the restoration, upon circumstances connected with the prior disturbed .state of the country, ought to be considered with much caution." ^ Mitf. Eq. PI. by Jeremy, 95, and cases there cited ; Cooper, Eq. PI. 98, 99. ' Mitf. Eq. PI. by Jeremy, 95, 96, and cases there cited ; Cooper, Eq. PI. 99. ♦ Cooper, Eq. PI. 99. §428 a -432.] bills to execute decrees. 395 the judgment of an inferior court of equity, if the jurisdiction of that court is not 'equal to.tlie purpose ; as in the case of a decree in Wales, which the defendant has avoided by flying into England. In such a case, the court has thought itself entitled to examine the justice of the decision, although it has been affirmed in the House of Lords.^ But it has been justly remarlied, that on that occasion the court suffered its anxiety to do justice to carry it far beyond the limits of its jurisdiction .^ § 432. A bill for this purpose is, generally, partly an original bUl, and partly a bill in the nature of an original bill, although not strictly original ; and sometimes it is likewise a bill of revivor, or a supplemental bill, or both. The frame of the bill is varied accordingly.^ CHAPTER IX. MODES OF DEFENCE. [* § 433. Modes of defence. ! § 434. These are dilatory, and to the merits. § 435. On the merits defences are of two kinds, primary, &c. § 436. Demuner, plea, answer, and disclaimer. § 437. Definitions of these several modes of defence. § 438. Cases require different forms of defence. § 439. Different forms'of defence, when applicable. § 440. Manner of treatment stated. ^ 441. Definition of demurrer. § 442. Its extent and use. § 443. Must be good for all it claims, or else overruled. § 444. Separate demurrers to different parts of bill. § 445. Demurrer maintainable, as to some defendants, and not as to all. § 446. The proper course where defence appears on face of bill. § 44^ How far demurrers are useful in practice. § 448. Speaking demurrer, one alleging new facta. § 449. In what cases plea is necessary. § 450. Facts alleged by way of defence, not admitted by demurrer. § 451. What implications not conceded by demurrer. 4 452. Demurrer admits facts, but not conclusions of law. § 452 a. Language of bill, on demurrer, taken in natural sense. ' Mitf. Eq. PI. by Jeremy, 96, 97, and cases there cited ; Cooper, Eq. PI. 99, 100. " Cooper, Eq. PI. 100 ; Galbraith v. Neville, .5 East, R. 475 n. ' Mitf. Eq. Pi. by Jeremy, 97. See Pott v. Gallini, 1 Sim. & Stu. 206. 396 EQUITY PLEADINGS. [CH. IX. § 452 b. How far documents referred to may be read at the bar. § 453. To what defects demurrer reaches. § 454. Matters of form how far important. 5 455. Demurrers general and special, for substance or form. § 456. Not applicable to pleas or answers. § 457. Must clearly define the extent of its application. § 458. Illustration of defect in*his particular. § 458 a. Demurrer must be framed with reference to bill. § 459. To whole bill, if allowed, puts case out of court § 459 a. But leave to amend is generally given. . § 460. Two dilatory pleas not allowed in succession. . Hervey, 1 Ves. 248; Verplanck v. Caines, 1 John. Ch. R. 57; Higginbotham v. Burnet, 5 John. Ch. R. 136 ; Todd V. Gee, 17 Ves. 273 ; Knight v. Moseley, Ambl. R. 176 ; Jones v. Frost, Jac. R. 466 ; Wynne v. Jackson, 1 McClell. & Younge, 35 ; Jones v. Frost, 3 Madd. R. 8 ; Attorney-General v. Brown, 1 Swanst. R. 304 ; Kuypers v. Dutch Reformed Church, 6 Paige, R. 570; 1 Mont. Eq. PI. 99, 100, 110. Lord Redesdale, after stating, that where a demurrer is put in, which is too extensive, it is. generally considered that the demurrer must be overruled, has added, " but there are instances of allowing demurrers in part." And he cites 2 Eq. Abridg. 759 ; 2 Bro. Pari. Cas. 514, Toml. edit. The doctrine of the text is now, however, firmly established. Mayor of London v. Levy, 8 Ves. 403 ; Baker v. Mellish, 11 Ves. 70 ; Todd v. Gee, 17 Ves. 280. See also Mitf. Eq. PI. by Jeremy, 214, note (i). Where a demurrer is too extensive, the court will, if a fair case is made, in its discretion, give leave, upon proper terms, to the defendant to amend his de- murrer by narrowing its terms. Cooper, Eq. PI. 112, 113, 115 ; Mitf. Eq. PI. by Jeremy, 214, 215, and cases there cited ; Baker v. Mellish, 11 Ves. 70. See Dell V. Hale, 2 Younge & Coll. New R. 1, 3 ; Post, § 692. §442-446.] DEMURRERS. 401 have extended to, it has been held to be bad.^ But a demurrer may be put in, and several causes assigned ; and if one cause is good to the whole extent of the demurrer, and another is bad, the demurrer will be sustained ; for, if both were bad, the defendant may, ore tenus, assign new causes of demurrer at the argument to matters of substance, although not to matters of form ; so that any one good cause, existing of record, or otherwise assigned, will do.^ § 444. And a defendant may put in separate demurrers to sep- arate and distinct parts of a bill for separate and distinct causes ; for the same grounds of demurrer frequently will not apply to dif- ferent parts of a bill. And if separate demurrers are put in to different and distinct parts of a bill, one demurrer may be over- ruled upon argument, and another be allowed.^ So that, in this way, the hazard of one general demurrer to all the objectionable parts of a bill may be avoided. § 445. Where there are several defendants, if they all join in one demurrer to a bill, the demurrer may be good, and be allowed, as to one of the defendants, and be bad, and disallowed as to the other defendants ; for the defence may be good as to one person, and.be wholly inapplicable to another.* And there is a clear, al- though a nice, distinction between a demurrer, which is too large in regard to all the defendants, and one, which is too large or in- applicable to some of the defendants. In this respect, there is a difference between pleadings in law and in equity ; for a joint de- murrer, or a joint plea, bad as to one defendant, is at law bad as to all. § 446. Whenever any ground of defence is apparent on the bill itself, either from the matter contained m it, or from the defect in ' Dawson v. Sadler, 1 Sim. & Stu. R. 537, 542. This doctrine is now changed by the 36th of the Orders of the English Court of Chancery, 1841, which pro- vides, " That no demurrer or plea shall be held bad and overruled upon argu- ment, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to." 1 Craig. & Phill. R. 379. The same rule has been adopted by the Supreme Court of the United States. Rule 36 of the Equity Rules, January Term, 1842. See also Dell v. Hale, 2 Younge & Coll. New R. 1. ' Cooper, Eq. PI. 112, 113; Jones v. Frost, Jac. R. 468; Beames, Ord. in Chan. 174. ' Cooper, Eq. PI. 113; Mitf. Eq. PI by Jeremy, 214, 215. ' Cooper, Eq. PI. 113 ; Mayor of London v. Levy, 8 Ves. 403, 404. 34* 102 EQUITY PLEADINGS. [CH. IX its frame, or in the case made by it, the proper mode of defence is by demurrer.^ A demurrer is an allegation of a defendant, which, admitting the matters of fact alleged by the bill to be true, shows, that as they are therein set forth, they are insuflBcient for the plain- tiff to proceed upon, or to oblige the defendant to answer ; or that for some reason apparent on the face of the bill, or because of the omission of some matter, which ought to be contained therein, or for want of some circumstance, which ought to be attendant there- on, the defendant ought not to be compelled to answer .^ It there- fore demands the judgment of the court, whether the defendant shall be compelled to make answer to the plaintiff's bill, or to some certain part thereof.^ § 447; The causes of demurrer must be upon some matter in the bill, or upon the omission of some matter, which ought to be therein, or attendant thereon ; and not upon any foreign matter alleged by the defendant.* The principal ends of a demurrer are, to avoid a discovery, which may be prejudicial to the defendant, or to cover a defective title, or to prevent an unnecessary expense. If no one of these ends is obtained, there is little use in a demur- rer.^ For, in general, if a demurrer would hold to a bill, the court, although the defendant answers, will not grant relief upon hearing the cause. There have been, however, cases, in which the court has given relief upon the hearing, although a demurrer to the relief would probably have been allowed. But such cases are rare.^ § 448. From what has been said, as to the nature and office of a demurrer, it is clear, that it can be only for objections apparent upon the face of the bill itself, either from the matter inserted, or omitted therein, or from defects in the frame or form thereof.^ It cannot, therefore, state, what does not appear upon the face of the bill, otherwise it would be, what has been emphatically called, a speaking demurrer, that is, a demurrer, where a new fact is intro- duced to support it.8 Thus, for example, where a bill was brought ' Mitf. Eq. PL by Jeremy, 107. ' Ibid. 8 iby * Mitf. Eq. "Pl. by Jeremy, 107, 108, and cases there cited ; Wyatt, Pr. Keg. 162. " Ibid. 5 Ibid ' Beames, Ord. in Chan. 26. « Cooper, Eq. PI. Ill ; Davies v. Williams, 1 Sim. E. 5 ; Brooks v. Gibbons, 4 Paige, R. 374 ; Brownsword v. Edwards, 2 Ves. 245 ; Edsell v. Buchanan, 2 Ves. jr. 83 ; S. C. 4 Bro. Ch. R. 254 ; Cawthorne v. Chalie, 2 Sim. & Stu. 129; Kuypers v. Dutch Reformed Church, 6 Paige, R. 570. §446-460.] DEMURRERS. 403 to redeem a mortgage, and it did not allege possession in the mort- gagor within twenty years, otherwise than by saying, that in or about the year 1770, the plaintiff's ancestor (the mortgagor) died, and soon after the defendant took possession ; and a demurrer was put in, and alleged for cavise, that it appeared upon the face of the bill, that from the year 1770, " which is upwards of twenty years before the filing of the bill," the defendant had been in pos- session, and the plaintiff was under no disability, Post, § 864. ' Ante, § 452, 455, note. ' Mitf. Eq. PI. by Jeremy, 213, 214; Chetwynd v. Lindon, 2 Ves. 450 ; Sal- keld V. Science, 2 Ves. 107; Barton, Suit in Equity, 108, 110, notes. * Eobinson v. Thompson, 2 Ves. & B. 118; Salkeld v. Science, 2 Ves. 107; Mitf. Eq. PI. by Jeremy, 214, note (h). » Wetberhead v. Blackburn, 2 Ves. & B. 121, 123. ° Devonsher v. Newenham, 2 Sch. & Lefr. 205. Lord Kedesdale, on this oc- casion, said : " I have looked into the cases, and have no doubt that this demur- rer is informal. The answer is, ' to so much of the bill as this defendant is advised he is bound to answer unto.' In the first place, this cannot be an answer ; for, if the demurrer covers the rest of the bill, no exceptions can be taken to the answer, EQ. PL. 35 410 EQUITY PLEADINGS. [CH. IX. t where a demurrer was put in to all the relief and to all the dis- covery prayed by the bill, except so far as the bill seeks a discovery touching the several title-deeds, &c., in the bill mentioned, Ac, &c.; and as to the residue of the bill, not demurred to, proceeded to answer the facts specified and excepted ; the demurrer was held bad, and overruled for the like reason.^ § 458 a. Care should also be taken to frame the demurrer cor- rectly, with reference to the nature of the bill ; for if the bill is for discovery only, and the demurrer, without mentioning discovery, is to relief, namely, that the plaintiff is not entitled to any such relief against the defendant, as is prayed by the bill, the demurrer will be bad, and overruled.^ because it does not describe, what it is, that has been so answered. But the cases on the subject have clearly determined, that the demurrer must express, in the clearest manner, what it is that you demur to. It has been repeatedly said, that where a defendant demurs to part, and answers to part of a bill, the court is not to be put to the trouble of looking into the bill or answer to see what is covered by the demurrer ; but that it ought to be expressed in cl^ar and precise terms, what it is, that the party refuses to answer ; so that the master, upon a reference of the answer to him upon exceptions, should be able to ascertain precisely, how far the demurrer goes, and what is to be answered. And I cannot agree, that it is a proper way of demurring to say, that the defendant answers to such and such particular facts, and demurs to all the rest of a bill ; for this would put the master to great difficulty in saying what was demurred to, and whether the answer was sufficient, or otherwise. The defendant ought to demur to a particular part of the bill, specifying it precisely, and answer to all the rest. Chetwyud v. Lindon, 2 Ves. 450, is an indifferent report. But one may Collect from the case, what was the opinion of Lord Hardwicke on the subject. There he held, that a demurrer ' to such part of the bill, as ought to compel defendants to discover a conspiracy,' did not sufficiently distinguish, what part it was, that was covered, by the demur- rer. I confess (independent of the authority of Lord Hardwicke,) I might have thought that sufficiently precise. But Lord Hardwicke thought otherwise. He said, ' The court must look through the whole bill to see, what the particulars are, which are demurred to. It is like the case of a plea which begins with ' as to so much of the bill, as is not after answered to, the party pleads,' which has been often overruled ; for it cannot be known, what would be pleaded to, and what answered.' I apprehend Lord Hardwicke's idea was this : that when a party refuses to answer a particular part of the bill, he must precisely state, what part of the bill it is, which he refuses to answer, and upon which he de- mands the judgment of the court, whether he shall answer or not ; and that he has no right to compel the court to go through the whole bill, to see, what it is that he refuses, and what he submits to answer." See also Jarvis v. Palmer, 11 Paige, 650. 1 Kobinson v. Thompson, 2 Ves. & B. 118. But see Hicks v. Raincock, 1 Cox, K. 40. " Mills V. Campbell, 2 Younge & Coll. 389. §458-460.] DEMURRERS. 4*11 § 459. If the plaintiff conceives that there is not sufficient cause apparent on his bill to support a demurrer put in to it, or that the demurrer is too extensive, or is otherwise improper, he may take the judgment of the court upon it, and if he conceives, that by amending his bill he can remove the ground of demurrer, he may do so before the demurrer is argued, on payment of costs, which vary according to the state of the proceedings.^ But after a de- murrer to the whole of a bill has been argued and allowed, the bill is out of court, and therefore cannot be regularly amended.^ To avoid this consequence, the court has, sometimes, instead of deciding upon the demurrer, given the plaintiff liberty to amend his bill, paying the costs incurred by the defendant. And this has been frequently done in the case of a demurrer for want of parties.^ "Where a demurrer leaves any part of a bill untouched, the whole may be amended, notwithstanding the allowance of the demurrer ; for the suit in that case continues in court, the want of which cir- cumstance seems to be the reason of the contrary practice, where a demurrer to the whole of a bill has been allowed.* [* § 459 a. But, in practice, the court deliver their opinion upon the demurrer, before entering up judgment, thus giving the party an opportunity to move for leave to amend before final judgment upon the demurrer, or, what is more common, the counsel inter- pose, ore tenus, at the bar, a suggestion to the court, that if the opinion of the court should be against them, upon any point, re- lievable by amendment, they will ask leave for that purpose.] § 460. If a demurrer should be overruled on argument, because the facts do not sufficiently appear on the face of the bill, defence may be made by plea, stating the facts necessary to bring the case truly before the court, although it has been said, that the court will not permit two dilatories.^ And after a plea overruled, it is said, that a demurrer has been allowed, bringing before the court the same question in substance as was agitated in arguing the plea.^ But, after a demurrer has been overruled, a second demur- rer will not be allowed ; for it would be in effect to rehear the case • Mitf. Eq. PL by Jeremy, 215, 216, and oases there cited; Cooper, Eq. PL 11.5 ; Wyatt, Pr. Reg. 164, 165 ; Baker v. MelHsh, 11 Ves. 72. Properly speak- ing, the cause is not out of court, until, upon the allowance of the demurrer, the bill is dismissed by the order of the court. 2 Ibid. ' Ibid. * Ibid. ' Mitf. Eq. PI. by Jeremy, 215, 216, and authorities before cited. • Ibid. 412 EQUITY PLEADINGS. [CH. IX. on the first demurrer, as, on the argument of a demurrer, any cause of demurrer, although not shown in the demurrer as filed, may be alleged at the bar ; and, if good, it will support the demurrer .^ § 461. In order to prevent delays by putting in frivolous de- murrers, it is required by the rules of court, that the demurrer should be signed by counsel.^ But it is not required to be put in on oath, as it asserts no feet, and relies merely upon matter upon the face of the bill.^ It is, therefore, considered, that the defen- dant may, by advice of counsel, upon the sight of the bill only, be enabled to demur thereto.* And for this reason it is always made the special condition of an order giving the defendant time to de- mur, plead, or answer to the plaintiff's bill, that he shall not demur alone.5 "Whenever, therefore, the defendant has obtained an order for time, and is afterwards advised to demur, he must also plead to, or answer some part of the bill.^ It has been held, that an- swering to some fact immaterial to the cause, and denying combi- nation, do not amount to a compliance with the terms of such an order ; and, therefore, upon motion, a demurrer accompanied by such an answer has been discharged.'' § 462. This rule has probably been established under the no- tion, that time is not necessary to determine whether a defendant may demur to a bill or not, and the supposition that a demurrer may be filed merely for delay .^ Biit whether a bill may be de- murred to is sometimes a subject of serious and anxious con- sideration ; and the preparation of a demurrer may require great attention, as, if it extends in any point too far, it must be over- ruled. Great inconvenience, therefore, may arise from a strict adherence to this rule.® For it often happens, that a defendant cannot answer any material part of the bill without overruling his • Mitf. Eq. PI. by Jeremy, 216, 217, and cases there cited; Cooper, Eq. PI. 115, 116 ; Booth V. Stamper, 10 Georgia, 113; Mont. Eq. PI. 112, 113; Baker V. Mellish, 11 Ves. 70. " Beames, Ord. in Chan. 172 ; Hinde, Ch. Pr. 148 ; Mitf. Eq. PI. by Jeremy, 208 ; Cooper, Eq. PI. 114 ; Wyatt, Pr. Keg. 165 ; Ante, § 441, note. ' Ibid. 4 Ibid. ' Beames, Ord. in Ch. 172, and authoritTes before cited. " Ibid. ' Mitf. Eq. PI. by Jeremy, 208, 209, and cases there cited ; Cooper, Eq. PL 114, 115. ' Mitf Eq. PL by Jeremy, 209, 210, and cases there cited; Tompkin v. Leth- bridge, 9 Ves. 178; Baker v. Mellish, 11 Ves. 73. » Ibid. - § 460 - 464.] DEMUEEEES. 413 demurrer ; it being held that if a defendant answers to any part of a bill, to which he has demurred, he waives the benefit of the demurrer ; or, if he pleads to any part of a bill before demurred to, the plea will overrule the demurrer.^ For the plaintiff may reply to a plea, or an answer, and thereupon examine witnesses, and hear the cause ; but the proper conclusion of a demurrer is to demand the judgment of the court, whether the defendant ought to answer to so much of the bill as the demurrer extends to or not.^ The condition, that the defendant shall not demur alone, ought, therefore, perhaps, to be considered liberally ; and it has been formerly said that the court will not incline to discharge a demurrer, if the defendant denies combination only, where he cannot answer further without overruling his demurrer.^ § 463. However, the modern practice is according to the origi- nal strictness of the rule ; and it may be better, where the case reqiiires it, to relax the rule upon special application to the court, than to permit it to be evaded. Indeed, in some cases, an answer to any part of the bill may overrule the demurrer ; for, if the ground of demurrer applies to the whole bill, the answering to any part is inconsistent with that.* And, therefore, when the ground of demurrer was the general impropriety of the bill, and that the defendant ought not, therefore, to be compelled to an- swer it, his answer to an immaterial part, in compliance with the order for time, which he had obtained, was held to overrule his demurrer.^ § 464. Where a demurrer is put in to the whole bill, for causes assigned on the record, if those causes are overruled, the defend- ant will be allowed to assign other causes of demurrer, ore tenus, at the argument.^ But, in such a case, if the demurrer, ore tenus, is allowed, the defendant is not entitled to his costs, even though he may not be obliged to pay the costs on the demurrer on record, which has been overruled.^ But a demurrer, ore tenus, will never be allowed, unless there is a demurrer on record ; for if there is a ' Mitf. Eq. PI. by Jeremy, 209, 210, and cases there cited ; Tompkin v. Leth- bridge, 9 Ves. 178; Baker v. Mellish, 11 Ves. 73. ' Ibid. ' Ibid. * Mitf. Eq. PL by Jeremy, 210, 211, and cases there cited. » Ibid. ' Cooper, Eq. PI. 112; Cartwright v. Green, 8 Ves. 409; Beames, Ord. in Chan. 174; Brinkerhoff r. Brown, 6 John. Ch. E. 149. ' Ibid. 35* 4;[4 EQUITY PLEADINGS. [CH. IX. plea on record, and that is disallowed, a demurrer, ore terns, will also be disallowed.^ Whenever a demurrer, ore tenus, is permitted, it must be for some cause, which covers the whole extent of tlie demurrer.2 ^nd it has been held, that the right to put in such a demurrer, ore tenus, applies only to cases where the demurrer is to the whole bill, and not to cases where it is to a part only, not- withstanding it is coextensive with the demurrer to that part.^ § 465. In framing a demurrer to one part of the bill, and an- swering to another part, care must be taken, not only not to include in form any part, in the one, which is covered by the other ; but also not to include in the answer any matter to which the demurrer, although not in form, yet in substance properly ap- plies ; for in such a case, it seems that the demurrer is overruled by the answer.* Thus, for example, where a bill was brought to stay proceedings on an award under a submission, whereby it was agreed to be made a rule of court, upon an allegation of fraud and corruption in the arbitrators, and the arbitrators demurred to the whole bill, except the charges of fraud and corruption, which they answered ; it was held, that as the award was to be made a rale of court, the court, where the rule was to be entered, had sole jurisdiction of it ; and that the demurrer ought, therefore, to have extended to the whole bill ; and that the answers, as to the charges of fraud and corruption, overruled the demurrer.^ [But where ^ Cooper, Eq. PI. 112; Durdant v. Kedman, 1 Vern. 78, and Mr. Kaithby's note ; Beames, Ord. in Chan. 1 74 ; Attorney-General v. Brown, 1 Swanst. 288 ; Hook V. Dorman, 1 Sim. & Stu. 227 ; Ante, § 443. " Baker v. Hellish, 11 Ves. 70-76. ' Shepherd v. Lloyd, 2 Y. & Jerv. 490. * Ellice V. Goodson, 3 Mylne & Craig. 653 ; Crouch v. Hickin, 1 Keen, 383. ° Dawson v. Sadler, 1 Sim. & Stu. 537. The ground of this decision does not seem to be very intelligible ; for it is not easy to say, why, upon principle, though a demurrer might have been more broad, it is not maintainable as to the matter, to which it is applied, if it completely answers that. In Crouch v. Hickin, 1 Keen, K. 389, Lord Langdale seems to have admitted, that the distinction was too re- fined. On that occasion, he said : " A defendant, taking care to distinguish the different parts of a bill, may plead to one part, and demur to the rest ; or, if ne- cessary, put in several demurrers to distinct parts of the bill. But I conceive, that, according to the rules, perhaps too refined, on which the court has acted, the distinct defences must be exclusively applicable to the distinct parts of the hill, to which they are applied ; and that a defence, though in words applied to only one part of the bill, if it should on the face of it be applicable to the whole bill, is not good, and cannot stand in conjunction with another distinct defence, which is applicable and applied to another distinct part of the bill." § 464, 465.] DEMUEREES TO RELIEF. 416 the plaintiff amended his bill after answer, arid thus changed the nature of the case, the defendant was allowed to demur to the amended bill, although he had answered that which was part of the formal groundwork both of the new and of the original case.-'] CHAPTEE X. DEMURRERS TO JRELIEP. [* 5 466. Enumeration of causes of demurrer. § 467. Different grounds of demurrer to jurisdiction. § 468. As that the matter is not of judicial cognizance. 5 469. Treaty stipulations sometimes enforced in courts. § 470. Qnestions of confiscation regarded as political. § 471. Those of disputed boundary sometimes judicial. § 472. One cause of demurrer that the matter is not of equity jurisdiction. § 473. Equity interferes where remedy at law is not complete. § 474, 475. Further illustrations of the point. § 476. Ejectment bill not maintainable. § 477. Bill for relief founded on discovery of deeds. § 478. In cases of lost instruments. § 479. Bills for account of prize money. § 480. Cases of insurance in the name of agent. §481. Further illustrations. § 481 a. How far it is necessary to raise this question by demurrer. § 482. Cases where there is remedy by way of set-off. § 483. Where there is no remedy either at law or in equity. § 484. Where the claim" on the face of bill is barred by statute of limitations. § 485. Cases where there is no remedy in equity. § 486. Or where the remedy is in some other court of equity. § 487. Further illustration of the subject. § 488. Exceptit)ns to jurisdiction should be taken at the earliest moment. § 489. Locality of property not ordinarily important. \ 490. Same subject further discussed. § 491. Some few cases, equity jurisdiction concurrent. \ 492. Cases of jurisdiction in United States Circuit Courts. § 493. Demurrer as to the person ; classification. § 494. On account of personal disability of plaintiff. § 495. Where the plaintiff appears to be a bankrupt. \ 496. Where there is a personal disability in defendant. § 497. Where plaintiff affects a corporate character. § 498. Where plaintiff is a fictitious person, &c. § 499. Demurrers as to the matter of the bill. § 500. As to the amount in controversy. ^ Cresy v. Beavan, 13 Simons, 354. 416 EQUITY PLEADINGS. [CH. X. § 501. The great antjquity of this rale. § 502. The same rule prevails in the American courts. § 503. That plaintiff has no interest, &c. § 503 a. Where great lapse of time appears on the face of the bill. Mitf. Eq. PI. by Jeremy, 123 ; Cooper, Eq. PL 124 ; Thayer v. Smith, 9 Met- calf, 469 ; Winnipissiogee Lake Co. v. Worster, 9 Foster, 446 ; Chalmers v. Hack, 19 Maine, 124. 2 Jones V. Jones, 2 Meriv. K. 161 ; Jones v. Frost, Jacob, K. 466 ; S. C. 3 Madd. R. 1 ; 2 Story on Eq. Jurisp. § 1445-1448; Cooper, Eq. PI. 125; Gaines and Wife v. Chew, 2 How. Sup.'Ct. R. 619. = Parry v. Owen, Ambl. R. 109; S. C. 3 Atk. 740; Cooper, Eq. PI. 124. §473-480.] DEMURRERS TO RELIEF. 423 he would not have any title to the relief; that relief, after the dis- covery, being properly to be given at law ; and by praying relief, as well as discovery, his whole bill would be demurrable.^ § 477. So, whei-e a bill, seeking a discovery of deeds or writ- ings, prays relief, founded on the deeds or writings, of which the discovery is sought; if the relief so prayed be such, as might be obtained at law, if the deeds or writings were in the custody of the plaintiff, he must annex to his bill an affidavit, that they are not in his- custody or power, and that he knows not where they are, unless they are in the hands of the defendant ; otherwise, the bill will be demurrable.^ § 478. So, if a bill should be brought for the discovery and pay- ment of a lost or suppressed instrument, upon which, but for the loss or suppression, there would be a complete remedy at law, the bill will be demurrable,^ unless there is annexed to it an affidavit of the loss, and unless, also, in proper cases, it contains an offer of indemnity, and also a suggestion, that the evidence of the plain- tiff's demand is not without such discovery in his power, and is essential to his rights.* A fortiori, if the bill should seek payment of a bond, or other instrument, where the remedy is complete at law, without suggesting any loss or suppression, it would be de- murrable.^ § 479. So, if a bill should be brought for an account and share of prize money, where it was apparent, from the face of the bill, that it was for a sum certain in the hands of the defendant, a de- murrer would lie ; for the remedy would be complete at law.^ § 480. So, if a policy of insurance should be made in the name of an agent or trustee, and a loss should occur, and the agent or trustee should refuse to sue thereon, a bill for relief, suggesting 1 Cooper, Eq. PI. 125 ; Loker v. Eolle, 3 Ves. 4 ; Kyves v. Ryves, 3 Ves. 343 ; Ante, § 288, 311. And see Kussell v. Clarke's Executors, 7 Cranoh, 69, 89 ; 1 Story on Eq. Jurisp. § 71. « Ante, § 288, 313; Mitf. Eq. PI. by Jeremy, 54, 124, 125 ; Cooper, Eq. PI. 61, 208. ' Ante, § 288, 313. * Mitf. Eq. PI. by Jeremy, 54, 123-125 ; Eootham v. Dawson, 3 Anst. 859 ; Whitchurch v. Golding, 2 P. Will. 541; Cooper, Eq. PI. 126; Walmesley v. Child, 1 "Ves. 341, 345 ; Whitfield v. Fausset, 1 Ves. 393 ; Humphreys v. Hum- phreys, 3 P. Will. 395 ; Ante, § 288, 313. ' Humphreys v. Humphreys, 3 P. Will. 395 ; Hook v. Dorman, 1 Sim. & Stu. 227. " Ogle V. Haddock's Administrator, 1 Ves. 162. 424 EQUITY PLEADINGS. [CH. X. these facts, and making the agent or trustee and the underwriters parties, would be demurrable; because the- proper remedy is at law ; for on every such policy, if made in the name of an agent for the benefit of his principal, the principal, as well as the agent, may sue in his own name.^ Nor will it help the matter, that there is allegation in the bill, that the witnesses are abroad, or dead, for that fact will not alone change the forum.^ § 481. On the other hand, matters of defence, which are good at law, will not ordinarily be redressed in equity. Thus, if a bill is to be relieved against a writ of inquiry, executed without due notice, it will be bad on demurrer, because it is properly remedi- able at law.^ So, if a bill is founded on an allegation, that a judgment has been obtained against the plaintiff for goods sold, for which he is not personally liable, but for which he had con- tracted as an agent for the government, it will be bad on demur- rer : for, if true, it will constitute a perfect defence at law.* [* § 481 a. It is often said in the courts and by elementary writers, that unless the objection that the plaintiff has a perfect remedy at law is taken by demurrer, or as a preliminary question, it will be regarded as waived, and cannot be raised at the hearing, but we apprehend this is not generally true.^ But it was held in a recent case,^ that, where a suit in equity is submitted for final hearing, upon an agreed state of facts, and no exceptions for form reserved, the exception that the plaintiff has an adequate remedy at law cannot be raised, for the first time, at the hearing." And it has also been held that a finding in such case in regard to the facts, whether in favor of, or against the plaintiff, is conclusive upon the parties, although the bill be afterwards dismissed, because there is full remedy at law.'^ But the defence of good remedy at law is regarded as one of substance in the national tribunals, and one affecting the jurisdiction of the court in equity, and may therefore ' Dhegeleft v. London Assur. Co., Mosel. E. 83 ; Fall v. Chambers, Mosel. K. 193 ; Motteaux v. London Assur. Co. 1 Atk. 547 ; Mitf. Eq. PL by Jeremy, 125. ' Ibid. ' Boyd v. Lomax, Kep. Temp. Finch, 335. ' See Macbeath v. Haldimand, 1 Term R. 172 ; Debigge v. Howe, 3 Bro. Oh; K. 155 ; Cooper, Eq. PL 194 ; Mitf. Eq. PL by Jeremy, 187. But see Graham v. Stamper, 2 Vern. R. 146, contra. [* * May V. Goodwin, 27 Geo. 352. It is certain substantial defects may gen- erally be taken at the hearing. Reed v. Wessel, 7 Mich. 139 ; Kreichbaum v. Bridges, 1 Clarke (Iowa), 14. ' Russell V. Loring, 3 Allen, 121. ' Munson v. Munson, 30 Conn. 425. § 480 - 483.] DEMURKERS TO RELIEF. 425 be raised at any stage of the proceedings, or the court will raise it sua sponte^'\ . § 482. Upon the same ground, if a bill is filed for an account and payment, the subject being matter of set-off, and capable, upon the allegations in the bill, of complete proof at law, a demurrer to the bill will be sustained ; for, under such circumstances, the rehef at law will be perfect, and the interposition of a court of equity will be unnecessary .2 ■ Nor, if the plaintiff fails to support his equity on the particular items alleged, can the bill be sustained against a demurrer, upon the vague charge .of voluminous accounts between the parties.^ It will be different, if a discovery is indis- pensable to establish the plaintiff's right. § 483. The like principle will apply to cases, where, upon the face of the bill, there is no remedy, either at law or in equity.* Thus, if a bill should seek to recover back money, which has been voluntarily paid by a party, upon a suit being threatened or brought, and his defence is, that there was fraud in the transaction, on which the suit was brought, or to be brought, the bill would be demurrable, notwithstanding he should state in his bill, that, at the time when he made the payment, it was iinder a protest, that ' Parker v. Win. L. C. & W. Co. 2 Black. 545.] ' Dinwiddle v. Bayley, 6 Ves. 136 ; Cooper, Eq. PI. 123 ; Moses v. Lewis, 12 Price, R. 562. ' Darthez v. Clemens, 6 Beavan, R. 165. * The common form of a demurrer for want of equity, is as follows : " These defendants, by protestation, not confessing all or any of the matters and things in the said complainant's bill contained, to be true in such manner and form as the same are therein set forth and alleged, do demur to the said bill, and for cause of demurrer show, that the said complainant has not, by his said bill, made such a case as entitles him, in a court of equity, to any discovery from these defendants respectively, or any of them, or any relief against them, as to the matters contained in the said bill, or any of such matters, and that any dis- covery which can be made by these defendants, or any of them, touching the matters complained of in the said bill, or any of them, cannot be of any avail to the said complainant for any the purposes for which a discovery is sought against these defendants by the said bill, nor entitle the said complainant to any relief in this court, touching any of the matters therein complained of Wherefore, and for divers other good causes of demurrer appearing in the said bill, these defendants do demur thereto, and they pray the judgment of this honorable court, whether they shall be compelled to make any further and other answer to the said bill ; and they humbly pray to be dismissed from hence with their reasonable costs in this behalf sustained." Van Heyth. Eq. Drafts. 419. See similar form. Ante, § 435, note. 36* 426 EQUITY PLEADINGS. [CH. X. he would seek redress in equity ; for, non constat, that his defence might not have been effectually sustained at law ; and, if so, it would have been his duty to make it in the suit at law.^ § 484. The same principle will apply to a bill, which states a case within the statute of limitations at law, and upon which courts of equity follow the analogy of the law ; for, under such circumstances, courts of equity hold, that the objection may be taken as a defence by demurrer ; and that, if the plaintiff be with- in any exception of the statute, it is incumbent 6n him to state it in his bill. Thus, for example, if it should appear on the face' of a bill, that the cause of action (arising upon a simple contract) accrued more than six years before the filing of the bill, a demur- rer would lie.^ § 485. The same principle will apply, where there is not, ac- cording to the practice of courts of equity, any right or any reme- dy in equity, even although there might be at law. Thus, if a bar might, not be good in a court of law by reason of the lapse of time ; yet a court of equity might nevertheless sustain it ; for it never administers to stale claims, or encourages gross laches. Hence, where there has been an adverse possession by a party, claiming the title, and taking the rents of an estate for twenty years, if a bill is brought after that time by a plaintiff, insisting upon his right to the same estate, it will be held demurrable, even although a court of law might sustain an ejectment in such a case ; for the rule in equity is, that after there has been an adverse possession of twenty years, not accounted for by some disability, such as cov- erture, infancy, or the like, a court of equity ought not to inter- fere, to disturb the possession ; but it will leave the parties to their remedies at law.^ § 486. Thirdly ; That some other court of equity is invested with the proper jurisdiction. This is a case, which can rarely occur in America, from the structure of our local equity tribunals. Still, 1 Kemp V. Pryor, 7 Ves. 237, 250, 251 ; Cooper, Eq. PL 124, 125. = Hoare v. Peck, 6 Sim. K 51 ; Wisner v. Barnet, 4 Wash. Cir. K. 631 ; Mitf. Eq. PI. by Jeremy, 272, 273 ; Foster v. Hodgson, 19 Ves. 180 ; Cooper, Eq. PI 254, 255 ; Caldwell v. Montgomery, 8 Geo. 108. Lord Kedesdale seems to have held, that the defence could only be taken by plea or answer ; but this is certainly not the present doctrine. Mitf. Eq. PI. by Jeremy, 272, 273. But see Ibid. 212, 213, and notes; Post, § 503, § 760. » Cholmondeley v. Clinton, 1 Turn. & Buss. 107, 119; Hardy v. Reeves, 4 Ves. 479. §483-487.] DEMUREEES TO RELIEF. 427 however, if a case should occur in the courts of the United States, where the question, although of equitable jurisdiction, should be more appropriate for a decision in the state tribunals ; such as the case of a charity, to be executed by the state government, as parens patrice, it would probably be thought, that it ought to be remitted to the state tribunals.^ § 487. In regard to England, the cases, in which such a ques- tion can arise, are also rare. And, upon this subject, the language of Lord Redesdale may be cited as containing every material con- sideration. " It has been before noticed," says he, " that the es- tablishment of courts of equity has obtained throughout the whole system of our judicial polity ; and that most of the inferior branches of that system have their peculiar courts of equity, the court of Chancery assuming a general jurisdiction in cases not within the bounds, or beyond the powers of inferior jurisdictions. The prin- cipal of the inferior jurisdictions in England are those of the Coun- ties Palatine of Chester, Lancaster, and Durham ; the courts of Great Session in Wales ; the courts of the two Universities of Ox- ford and Cambridge ; the courts of the City of London ; and of the Cinque-ports. These are necessarily bounded by the locality, either of the subject of the. suit, or of the residence of the parties litigant. Where those circumstances occur, which give them ju- risdiction, they have exclusive jurisdiction in matters of equity, as well as matters of law ; and they have their own peculiar courts of appeal, the court of Chancery assuming no jurisdiction of that nature, although it will in some cases remove a suit before the de- cision into the Chancery by writ of certiorari. When, therefore, it appears on the face of a bill, that another court of equity has the proper jurisdiction, either immediately or by way of appeal, the defendant may demur to the jurisdiction of the court of Chan- cery. Thus, to a bill of appeal and review of a decree in the court of the County Palatine of Lancaster, the defendant demur- red ; because on the face of the bill it was apparent, that the court of Chancery had no jurisdiction ; and the demurrer was al- lowed. But demurrers of this kind are very rare ; for the want of jurisdiction can hardly appear upon the face of the bill, at least so conclusively, as is necessary to deprive the Chancery, a court of general jurisdiction, of cognizance of the suit. And a demurrer ^ See Baptist Assoc, v. Hart's Executors, 4 Wheat. K. I. ; 2 Story on Eq. Juris. ch. 31, §1136-1194. 428 EQUITY PLEADINGS. [CH. X. for want* of jurisdiction, founded on locality of the subject of the suit, which alone can exclude the jurisdiction of the Chancery in a matter cognizable in a court of equity, has even been treated as informal and improper. This, however, can only be considered as referring to cases, where circumstances may give the Chancery jurisdiction, and not to cases, where no circumstances can have . that effect. Thus, the Counties Palatine, having their peculiar and exclusive courts of equity under certain circumstances, which will be more fully considered in another place, the court of Chan- cery will not interfere, when all those circumstances attend the case, and they are shown to the court. Though, if those circum- stances are not shown, or if they are not shown in proper time, and the defendant instead of resting upon them, and declining the jurisdiction, enters into the defence at large, the court, having general jurisdiction, will exercise it. But where no circumstance can give the Chancery jurisdiction, as in the case alluded to of a bill of appeal and review of a decree in a County Palatine, it will not entertain the suit, even although the defendant does not object to its deciding on the subject."^ § 488. Where the defence intended to be made is, that another court of equity has jurisdiction of the case, it should be taken by demurrer, if it appears on the face of the bill ; or, if it does not appear on the face of the bill, by plea ; for in some cases, if the objection is not thus taken in limine, it will not avail the party to insist upon it at the hearing.^ § 489. In general, the fact, that the property is not within the jurisdiction, constitutes no bar to a proceeding in a court of equi- ty, if the person is within the jurisdiction ; for a court of equity acts upon the person ; or, to use the appropriate phrase, cequitas agit in personam? But questions may arise under a bill respect- ing funds, or other things, in a foreign country, so purely local, that a court of equity in another country might very properly de- cline to interfere, and remit it to the domestic forum.* ' Mitf-'Eq. PI. by Jeremy, 151-153, and cases there cited; Cooper, Eq. PI. 140, 141, 160, 161, 262; Lord Coningsby's case, 9 Mod. 95. * Trelawney v. Williams, 2 Vern. 484 ; Mitf. Eq. PI. by Jeremy, 153 ; Cooper, Eq. PI. 160 - 162 ; Mays v. Taylor, 7 Geo. 243. ' Roberdeau v. Rous, 1 Atk. 543; Massie v. "Watts, 6 Cranch, 148, 158; 2 Story on Equity Jurisp. § 743, 744. * Massie v. Watts, 6 Cranch, 158 ; Eoberdeau v. Eous, 1 Atk. 544 ; Mitf. Eq. PI. by Jeremy, 152, 153; Earl of Derby v. Duke of Athol, 1 Ves. 203-205; Mead v. Merritt, 2 Paige, R. 402. § 487 - 492.] DEMURREES TO RELIEF. 429 § 490. Fourthly ; That some other court possesses the proper jurisdiction. This objection is not confined to cases cognizable in courts of common law ; but it may arise in cases, where another court has an exclusive jurisdiction ; or a competent, although not an exclusive jurisdiction ; or a mixed jurisdiction, embracing the . subject-matter.^ Where the jurisdiction is exclusive, it is clear, (as the term imports,) that no jurisdiction can attach in equity. Thus, for example, courts of equity will not entertain suits respect- ing the validity of wills of personal estate, as the exclusive cogni- zance thereof belongs to the ecclesiastical courts in England, and in America to the probate and other courts exercising a like juris- diction.^ But, in other cases, if any other court of ordinary juris- diction is competent to decide upon the same subject-matter, whether its jurisdiction be exclusive or not, a demurrer to a bill in equity wiU. generally hold ; for, under such circumstances, there being a full remedy elsewhere, the interference of a court of equity is wholly unnecessary. Thus, if the subject-matter is within the jurisdiction of a court of admiralty, or of a court of prize, or of a court of bankruptcy, or of an ecclesiastical court, it cannot ordi- narily be entertained in a court of equity.^ § 491. There are, indeed, some few cases, in which courts of equity maintain a concurrent jurisdiction ; such, for example, as in cases of tithes, and the disposition of the personal effects of per- sons dying testate or intestate, in which they have assumed a con- current jurisdiction with the ecclesiastical, courts, as far as the jurisdiction of the latter extends. But in these cases, and cases of a like nature, the jurisdiction is mainly founded upon the consid- eration, that the remedy in equity is more complete, and sometimes the only effectual remedy for the grievance.* § 492. There is a peculiar class of cases in America, which may give rise to an objection to the jurisdiction, founded solely upon the limited powers of the court of equity over the parties, and altogether independent of the subject-matter of the bill. Under the constitution and laws of the United States, the Circuit Courts have, with few exceptions, jurisdiction only in suits between cit- ' Mitf. Eq. PI. by Jeremy, 125, 126 ; Cooper, Eq. PI. 126, 127. " Mitf. Eq. PI. by Jeremy, 125, 126 ; Cooper, Eq. PI. 126, 127 ; Ante, § 474. , ' Mitf. Eq. PI. by Jeremy, 125, 126 ; Cooper, Eq. PL 126-128 ; Id. 119 ; Id. 162; The Ship Noysomhed, 7 Ves. 593. * Mitf. Eq. PI. by Jeremy, 125, 126, 136; Cooper, Eq. PL 127, 128; 1 Story on Equity Jurisp. § 589 - 608. 430 EQUITY PLEADINGS. [CH. X. izens of different states. And this has been construed to require, that all the parties on each side of the record should be citizens of different states ; and should be expressly averred to be so in the bill.^ If there be not such an averment, the objection will be fatal to the suit in every stage of the proceedings ; and it may be taken advantage of by way of demurrer ; as the court will not take juris- diction over the parties, or the cause, unless it is apparent upon the face of the proceedings.^ § 493. In the next place, as to demurrers to the person. These are either, (1.) That the plaintiff is not entitled to sue, by reason of some personal disability ; or (2.) That the plaintiff has no title to the character in which he sues.^ Each of these objections is somewhat, although not altogether, analogous in its nature, to a plea in abatement at the common law ; * and whenever it is apparent upon the face of the bill, it is the proper subject of a demurrer. § 494. And, first, as to the personal disability of the plaintiff. If an infant, or a married woman, or an idiot, or a lunatic, exhib- iting a bill, appear upon the face of it to be thus incapable of insti- tuting a suit alone, and no next friend or committee' is named in the bill, the defendant may demur .^ But if the incapacity does not appear upon the face of the bill, the defendant must take ad- vantage of it by plea. This objection extends to the whole bill, and advantage may be taken of it, as well in the case of a bill for discovery merely, as in the case of a bill for relief.® For the de- fendant, in a bill for a discovery merely, being always entitled to costs after a full answer, as a matter of course, would be mate- rially injured by being compelled to answer a bill, exhibited by persons whose property is not at their own disposal, and who are, therefore, iijcapable of paying the costs.'' ' Ante, § 26, note, and cases there cited ; Jackson v. Ashton, 8 Peters, K. 148. See 9 Foster, K. 444. But see Louisville, &c.. Railroad Company v. Letson, 2 How. Sup. Ct. K. 497. See also Lord Coningsby's case, 9 Mod. 95. ' Ante, § 26, note, and cases there cited. ' Cooper, Eq. PI. 119, 163, 164 ; Mitf. Eq. PI. by Jeremy, 153 ; Hare on J>iscov. 121-123. * Cooper, Eq. PI. 163. ^ Mitf. Eq. PI. by Jeremy, 153, 154. » Ibid. ' Mitf. Eq. PI. by Jeremy, 153, 154. See Wartnaby v. "Wartnaby, Jac. E. 377. In ca^es of this sort, courts of equity will, on motion, often direct the bill to be taken off the file, as improperly commenced. § 492 - 497.] DEMUKEEES TO BELIEF. 431 § 495. Upon similar grounds, if an uncertificated bankrupt should sue in equity for property, which had clearly passed to his assignees, and that fact should appear upon the face of the bill, it would ordinarily constitute a good ground for a demurrer.^ Cir- cumstances, indeed, might exist which might sustain the bill ; such as an allegation of fraud and collusion between the assignees and the defendant, and a refusal on their part to allow the suit, and a title in the bankrupt to a clear surplus.^ § 496. Secondly. The defect of the title of the plaintiff to the character in which he sues. It has been sometimes considered, that this objection is the proper subject of a plea, and not of a de- murrer. But there seems no ground to sustain the proposition, where the objection positively appears (which can rarely be the case) upon the face of the bill.^ Thus, for example, if it should appear upon the face of the bill, that the plaintiff sued as admin- istrator in virtue of the grant of administration in a foreign coun- try, the objection might be taken by demurrer ; for it is clear, that the plaintiff has no right, under that administration, to sue in our courts.* § 497. So, if a voluntary association of persons, not incorpo- rated, should affect, by their bill, to sue in the style and character of a corporate body, the bill would be demurrable on that very account, if the objection appeared upon the face of it ; for it is the exclusive prerogative of the government to create corporations, and invest them with the powers of suing, as such, by their cor- porate name.^ Therefore, where some of the members of a lodge of freemasons brought a bill against others for the delivery up of certain specific chattels, in which bill there was mention made of their laws and constitution, and the original charter, by which they » Benfield v. Solomons, 9 Ves. 77; Cooper, Eq. PL 163, 164. ' Benfield v. Solomons, 9 Ves. 77 ; Barton v. Jayne, 7 Sim. R. 24 ; Saxton v. Davis, 18 Ves. 72 ; Lautour v. Holcombe, 8 Sim. K. 76, 84 ; Kaye v. Fosbrooke, 8 Sim. K. 28 ; Tarlton v. Hornsby, 1 Ypunge & Coll. 172, 188. 189 ; Post, § 516, 726. ' Cooper, Eq. PI. 164. ♦ Story on Conflict of Laws, § 512 - 518 ; Mitf. Eq. PI. by Jeremy, 155 ; Tour- ton V. Flower, 3 P. Will. 369; Cooper, Eq. PI. 169, 170; Wyatt, Pr. Reg. 165, 166. Lord Redesdale has fully expounded this doctrine in the passage already cited in § 260. ' Lloyd V. Loaring, 6 Ves. 773; CuUen v. Duke of Queensbury, cited Ibid. 777 ; Cooper, Eq. PI. 164 ; 1 Bro. Ch. R. 101. 432 EQUITY PLEADINGS. [CH. X. were constituted, and a great affectation of a corporate character, a demurrer was allowed ; because the court will not permit per- sons, who can only sue as partners, to sue in a corporate charac- ter ; and upon principles of public policy, the courts of the country do not sit to determine upon charters granted by persons who have not the prerogative to grant charters.^ § 498. Where the plaintiff in a court of law is a fictitious per- son, the defendant may plead it in abatement. But in equity a different and more summary course is adopted ; and, upon motion, the court will direct a stay of the proceedings, or the bill to be taken off the file, and will order the solicitor to pay the costs, for his contempt in instituting the suit.^ So, if the name of a plain- tiff should be used without his authority, a similar course would be pursued.^ § 499. We come, in the next place, to the consideration of de- murrers to the matter of the bill, either as to its substance, or as to its form. Some of the objections under this head have been already discussed in our examination of the proper form and struc- ture of bills. But a concise review of the whole subject ^eems in,dispensable in this place to a full exposition of the nature and operation of demurrers, as to the substance, and as to the form of the bills. § 500. And first, as to demurrers to the substance of bills. One of the objections, which may thus be taken, is, that the value of the subject of the suit is too trivial to justify the court in taking cognizance of it ; or, as the phrase usually is, that the suit is un- worthy of the dignity of the court.* The true ground of this objection is, that the entertainment of suits of small value has a tendency, not only to promote expensive and mischievous litiga- tion, but also to consume the time of the court in unimportant and frivolous controversies, to the manifest injury of other suitors, and to the subversion of the public policy of the land.^ Courts of equity sit to administer justice in matters of grave interest to the ' Lloyd V. Loaring, 6 Ves. 773, and cases before cited. See also Livingston v. Lynch, 4 John. Ch. E. 575, 596. ' Cooper, Eq. PI. 165. ' Cooper, Eq. PL 165 ; Titterton v. Osborne, 1 Dick. 350 ; Dundas v. Dutens, 1 Ves. jr. 196. * Cooper, Eq. PI. 165. <■ Moore v. Lyttle, 4 John. Ch. R. 183 ; Carr v. Iglehart, 3 Ohio State B. 457, §497-502.] DEMUEEEES TO BELIEF. 433 parties, and not to gfatify their passions, or their curiosity, or their spirit of vexatious litigation. In England, the rule of the courts of equity is, not to entertain a bill under the value of ten pounds sterling, or forty shillings per annum in land, except in special cases, such as in cases of charity, in cases of fraud, and in cases of bills to establish a right of a permanent and valuable nature ; such as in the case of six shillings, claimed to be due as an Easter offering, or of a perpetual rent charge of five shillings.^ § 501. The rule itself seems to have been of great antiquity in the Court of Chancery. It may be distinctly traced back to our earliest reports ; and it is promulgated in a formal manner in the Ordinances of Lord Bacon, wherein is declared, that " all suits un- der the value of ten pounds are regularly to be dismissed."^ The exceptions to the rule were probably established at a later date, from the manifest propriety of retaining suits in furtherance of rights of a permanent nature, in aid of charities, and in suppres- sion of frauds.^ § 502. A similar rule seems to prevail in the courts of equity in America ; or at least in those courts, which have been called upon to express any opinion upon the subject. In New York, this was the established rule at an early period of its equity jurisprudence ; ' Cooper, Eq. PI. 165 ; Anon. Bunb. R. 17 ; Fox v. Frost, Rep. Temp. Finch, 253 ; Owens v. Smith, Com. R. 715 ; 1 Harris, Ch. Pr. by Newl. 214 ; Griffith v. Lewis, 4 Bro. Pari. Cas. 314 ; Brace v. Taylor, 2 Atk. 253 ; Mitf. Eq. PL by Jeremy, 110, note (o) ; Creagh v. Nugent, Mosel. R. 356 ; Anon. Mosel. E. 47 ; Cocks V. Foley, 1 Vem. R. 359 ; S. C. 1 Eq. Abridg. 75 and note ; Moore v. Lyttle, 4 John. Ch. R. 183; Vredenberg v. Johnson, Hopk. R. 112; Beames, Ord. in Chan. 10 and note (33); Curs. Cane. 9, 15, 229; Townley u. Osney, Gary, E. 105, 106 ; East Court v. Tanner, Cary, R. 106. A bill for a sum be- neath the dignity of tTie court, may also be dismissed on motion ; and this is the most usual way of proceeding in such a case. Mosel. E. 47 ; Id. 356. If the defendants should not take the objection, either by demurrer, or by motion to dismiss ; but the cause should come on to a hearing, and it should then appear, that the sum in controversy was less than £ 10, the court itself may order the bill to be dismissed ; for a bill may be, and often is, drawn in such a manner as to prevent the defendant from taking the objection by way of demurrer, or motion, or plea ; and, therefore, it would be unreasonable to deprive him of the benefit of it at the hearing. 2 Atk. 253 ; Cooper, Eq. PL 166. ^ Beames, Ord. in Chan. 10 and note (33) ; Curs. Cane. 9, 15 ; 1 Pr. Aim. Cur. Cane. 534 ; Townley v. Osney, Cary, E. 105, 106 ; East Court v. Tanner, Cary, E. 106 ; Tothill, Trans. 80. ' Cocks V. Foley, 1 Vern. 359 ; Beames, Ord. in Chan. 10, note" (33) ; Moore V. Lyttle, 4 John. Ch. R. 183. EQ. PL. 37 434 EQUITY PLEADINGS. [CH. X. and the amount has been recently increased by the legislature to the sum of one hundred dollars.^ § 503. Another objection which may be taken by demurrer to the substance of the bill, is; that the plaintiff has no interest in the subject-matter, or no proper title to institute a suit concerning it, whenever the objection is apparent on the face of the bill.^ If, therefore, a plaintiff should found his right to an interest in lands under a parol agreement, without alleging any circumstances amounting to a part performance ; or if he should state a contract without consideration, which would be a mere nude pact, (nudum pactum,') a demurrer would undoubtedly lie.^ The same rule would lie to a bill for the redemption of a mortgage, after a great length of time had elapsed, if the bill were so framed as to present the objection, without any attendant circumstances to obviate it ; for in this and other like cases, courts of equity act upon the anal- ogy of the law as to the statutes of limitations ; and will not en- tertain a suit for relief, if it would be barred at law.* If the ob- jection does not appear on the face of the bill, it may be taken by way of plea, or by way of answer.^ ' Vredenberg v. Johnson, Hopk. K. 112; Mitchell v. Tighe, Hopk. K. 119; Moore v. Lyttle, 4 John. Ch. R. 183 : Smets v. Williams, 4 Paige, R. 364. = Cooper, Eq. PI. 166, 169 ; Mitf. Eq. Pi. by Jeremy, 154, 231 ; Ante, § 260, 261 ; Hare on Discovery, 41, 42, 43. ' Cooper, Eq. Pi. 166, 167; Cozine v. Graham, 2 Paige, R. 177. * Cooper, Eq. PI. 167; Mitf. Eq. PI. by Jeremy, 212 and note (c); Post, § ''51 ; -Aggas V. Piekerell, 3 Atk. 225 ; Hardy v. Reeves, 4 Ves..479 ; Deloraine, V. Browne, 3 Bro. Ch. R. 633 ; and Mr. Belt's note (1) ; Foster v. Hodgson, 19 Ves. 180 ; Hovenden v. Lord Annesley, 2 Sch. & Lefr. 637 ; Hoare v. Peck, 6 Sim. R. 51 ; Preake v. Cranefeldt, 3 Mylne & Craig, R. 499 ; Fyson v. Pole, 3 Younge & Coll. 266; Humbert v. Rector, &c., of Trinity Church, 7 Paige, R. 195 ; Van Hook v. Whitlock, 7 Paige, R. 373 ; Coster v. Murray, 5 John. Ch. E. 522 ; Denny v. Gilman, 26 Maine, 149 ; Maxwell i>. Kennedy, 8 How. U. S. K. 222. Lord Redesdale, in his text, has said, that it has been considered, that a defence, founded oh length of time, though apparent on the face of the bill, without any circumstance stated to avoid it, cannot generally be made by de- murrer. In so doing, he seems to have followed, what appeared at the time, when he wrote his treatise, to be the prevailing course of authority. And he has illustrated the position by an accurate statement of what was decided by Lord Thurlow in Deloraine v. Browne, 3 Bro. Ch. R. 663. But the contrary doctrine is now fully established by the authorities above cited ; and especially by Lord Redesdale's own judgment in Hovenden v. Annesley, 2 Sch. & Left. 636-638; Caldwell V. Montgomery, 8 Geo. 109 ; [* Pierson v. David, 1 Clarke (Iowa), 23 ;] Ante, § 484. = Post, § 751, 813. § 502 - 504.J DEMUBREKS TO RELIEF. . 435 [* § 503 a. In a recent English case, upon an appeal from India, tried before the Privy Council, it was held, that where there had been a long lapse of time since the right to sue arose and this ap- pears upon the face of the bill, although there is no statutory bar, it may be met by a demurrer. But to entitle the defendant to demur to the bill, instead of putting in an answer, the case must be perfectly clear .^ § 503 b. An admission by an executrix in her answer, of the fact of there having been a debt due by the testator, is sufficient to prevent it from being barred by the general statute of limitations.^ § 503 c. There is one point in regard to the effect of an ad- mission in the defendant's answer, where the course of decision in the English courts seems somewhat anomalous. We refer to the practice of allowing the plaintiff to take a decree according to the facts set up in the answer, although variant, from those set up in the bill. This occurs more commonly in bills for specific perform- ance. Thus in Mortimer v. Orchard,^ on a bill for specific per- formance of a parol agreement to renew a lease, the plaintiff hav- ing built a house ; the answers admitted an agreement to renew, but different from that set up in the bill. Lord Loughborough, chancellor, said, " In strictness the bill ought to be dismissed ; but as there has been an execution of some agreement between the parties," specific performance was decreed according the answers, with costs against the plaintiff. But in a recent case before a dis- tinguished English equity judge. Sir J. Romilly, Jeffrey v. Ste- phens,* it is said, " Where the plaintiff brings forward one species of agreement, and the defendant relies upon another, the plaintiff may at the hearing adopt the agreement which is set up by the defendant ; and this proposition is borne out by the authorities." But in the particular case it was held, that where the plaintiff had always repudiated the terms of the agreement set up by the de- fendant, he was not entitled to a decree of specific performance, even for the contract as claimed by the defendant.] § 504. If the plaintiff should file his bill to secure the fund to pay a legacy given to a legatee, since dead, of whom the plaintiff asserts himself to be the next of kin, a demurrer would be al- [* * Dossee v. Mookerjee, 7 Moo. Ind. App. 4. * Moodie v. Bannister, 5 Jur. N. S. 402. « 2 Vesey, jr. 243. ♦ 6 Jur. N. S. 947.] 436 EQUITY PLEADINGS. [CH. X. lowed ; for, as the next of kin, he has no title to such relief; and he ought to have taken out administration upon the estate of the legatee.^ § 505. To the same head may be referred the common case, where a bill does not show any equity in the plaintiff to the relief which he seeks. Thus, for example, if a bill should be brought by one creditor against another, to deprive him of a priority, which he had lawfully obtained without any fraud, a demurrer would lie ; for, in such a case, there is no ground for a court of equity to interfere ; since all the creditors, under such circumstances, stand upon an equality of right ; and then the maxim prevails, qui prior est in tempore, potior est injure, as well as the maxim, that where the equity is equal, the law shall prevail.^ [* § 505 a. But the English courts maintain great strictness in regard to the form of a demurrer in equity. It was said in a re- cent case, that a demurrer, on the ground of want of equity, could not properly contain also the further cause of demurrer, want of jurisdiction ; but that these objections should be taken by separate demurrers ; but that a defendant demurring, generally, for want of equity, might demur, ore tenus, for want of jurisdiction.^ § 505 b. A defendant objecting to a bill, for want of a suf- ^ficient statement of facts, upon one branch of the relief sought, should raise that objection by plea and not by demurrer. Per where the bill sought the rectification of a prior settlement between the parties, and for the appointment of new trustees, the facts important to be considered, in reference to the first claim, not be- ing fully stated, the court overruled the demurrer, without costs, on the ground that it could not refuse to act in regard to the ap- pointment of new trustees, on the ground of the omission to state the facts fully on the other point.*] § 506. So, where the plaintiff, in his bill, stated himself to be the devisee of an estate purchased by the testator, and tlien sub- ject to a mortgage ; and alleged, that the mortgage debt was the debt of the testator, he having purchased it subject to the mort- gage, and having covenanted to indemnify the vendor therefrom,' ' Brown v. Dudbridge, 2 Bro. Ch. R. 322 ; Cooper, Eq. PI. 171. ^ Cooper, Eq. PI. 167, 168 ; The King v Blachford, 1 Anst. E. 162 ; PhiUips v. Shaw, 8 Ves. 241 ; 1 Story on Eq. Jurisp. § 57, 58. [* * Barber v. Barber, 5 Jur. N. S. 1197. * Ibid.] § 504 - 508.] DEMUREERS TO RELIEF. 437 and the bill prayed, that the personal estate should exonerate the devised estate by paying the mortgage, a demurrer was allowed ; for it was apparent upon the face of the bill, that the debt was not the personal debt of the testator ; and there was no allegation that he had ever had any communication with the mortgagee, or had done any act to transfer the debt from the estate to himself; and, therefore, there was no equity for the real estate to be relieved of the incumbrance out of the personal assets.^ § 507. The foregoing cases are properly illustrations of the de- fect, either of the original title, or of a present title, to institute the suit, although the party had (strictly speaking) an interest in the subject-matter. The like principle will apply to all cases of a claim, which the plaintiff seeks to enforce, and which is unlawful, or against the policy of the law ; for in such a case, there is a de- fect of title to maintain the suit. Thus, for example, a bill to recover money, which has been expended for the maintenance of a suit or controversy of a third person ; or to recover a premium for usingwinfluence to prociir* for the party an office of trust under government ; or to enforce a marriage brokage bond ; or to enforce a contract founded in moral turpitude or depravity ; would be de- murrable on the ground of its illegality or immorality.^ § 508. The want of interest of the plaintiff in the subject-mat- ter of the suit is equally fatal upon demurrer. Of this point, some examples have been already adduced under a former head.^ But other illustrations of it may be derived from the authorities. Thus, where the plaintiff claimed an estate under a will, and it was ap- parent upon the bill, as set forth by the plaintiff himself, that he had no title, a demurrer was allowed.* So, where the Protestant next of kin, in England, claimed a rent charge settled on a Papist on her marriage, a demurrer was allowed ; for the plaintiff evi- ^ Tweddell v. Tweddell, 2 Bro. Ch. R. 101, 152 ; Butler v. Butler, 5 Ves. 535 ; Earl of Oxford v. Lord Rodney, 14 Ves. 417 ; 1 Story on Eq. Jurisp. § 571, 574, 576 ; Cumberland v. Codrington, 3 John. Ch. R. 229 ; Cooper, Eq. PI. 168, 169 ; Waring V. Ward, 7 Ves. 332. ^ Cooper, Eq. PI. 171-173; Mitf Eq. PI. by Jeremy, 157; 1 Story on Eq. Jurisp. § 294-298. « Ante, § 260, 261, 318 ; Mitf. Eq. PL by Jeremy, 155, 156 ; Cooper, Eq. PI. 171, 173 ; Hare on Discov. 79-83. And see Haskell v. Hilton, 30 Maine, 421. * Brownsword v. Edwards, 2 Ves. 247 ; Mitf Eq. PI. by Jeremy, 154 ; Cooper, Eq. PI. 167, 168 ; Beech v. CruU, Prec. Ch. 588. See also Parker v. Fearnley, 2 Sim. & Stu. 592. 37* 438 EQUITY PLEADINGS. [CH. X. dently had no title to the thing, which he demanded by the bill, the Papist being, by the then British statutes, incapable of taking by purchase, and the rent charge being, therefore, utterly void.^ [* § 508 a. The English courts of equity require the plaintiff's title to be stated with great clearness. Where the suit is brought against a trustee to compel him to institute a suit against a fraud- ulent adversary claimant of a portion of the trust property, it must appear that the plaintiff sustains the character of a cestui que trust? And where the plaintiff had stated the instruments, under which he claimed title, but had not stated, with sufficient clearness and precision, the nature of the title under which he claimed, or the character in which he claimed, a demurrer was allowed.^] § 509. And the want of interest is not only a good cause of de- murrer in the case of a sole plaintiff; but if the suit is joint, a want of interest in either of the plaintiffs is equally fatal.* Thus, for example, if the inventor of a medicine should sue jointly with the party, who, as his agent, prepared the medicine, but who had no interest in the invention, and should pray for an injunction and account for a violation of his right, by imitating the labels and seals ' affixed to the medicines, a demurrer would hold ; for upon such a bill the plaintiffs, praying joint relief, would not be entitled to it.^ So, if a bankrupt should sue with others, after he had been de- clared a bankrupt, in regard to property or rights vested in his assignees, the like rule would apply .^ § 510. Upon a similar ground, if two plaintiffs should sue, and the bill should allege, that the title was^in one or the other of them, in the alternative, it would be demurrable ; for not only is such -an allegation objectionable on account of imcertainty, but also, because it shows, that there must necessarily be a misjoinder of one ' Mitf. Eq. PL by Jeremy, 154 ; Michaux v. ^rove, 2 Atk. 210. [* 2 Jerdein v Bright, 2 John. & H. 325. ' Parker v. Nickson, 7 L. T. N. S. 46 ; S. C. 9 Jur. N. S. 196.] * Ante, § 231, 232, 233, 237, 249 ; Post, § 541, 544 ; Clarkson v. De Peyster, 3 Paige, K. 336 ; Denton v. Davy, 1 Moore, Privy Council R. 41, 42 ; Foot v. Bessant, 3 Younge & Coll. 320, 325 ; Griffith v. Ricketts, 3 Hare, R. 476. ^ Delondre v. Shaw, 2 Sim. R. 237 ; Page v. Townsend, 5 Sim. R. 395 ; King of Spain v. Maohado, 4 Russ. R. 225 ; Cuff v. Platell, 4 Russ. R. 242 ; Ante, § 232 ; Clarkson v. De Peyster, 3 Paige, 336 ; Makepeace v. Haythorne, 4 Euss. R. 244 ; Cholmondeley v. Clinton, 1 Turn. & Russ. 116. « Makepeace v. Haythorne, 4 Russ. R. 244 ; Ante, § 495 ; Post, § 726. As to how and when a misjoinder of a party may be taken advantage of, see Ante, § 237, 283 ; Post, § 541, 544. §608-512.] DEMUKRERS TO BELIEF. 439 or the other of the plaintiffs.^ But a mere scintilla juris in one of the plaintiffs, as, for example, a naked title in a trustee to serve a mere power of appointment, will be sufficient to justify making him a plaintiff for the purpose of the trust with the other persons in interest.^ § 511. But if the plaintiff shows a complete title, although a litigated one, or one that may be litigated, it will be sufficient to sustain the bill.^ Thus, if an executor has obtained a probate of the will, it is conclusive as to his title to sue, even though fraud should be alleged in obtaining it ; for the fraud is inquirable only in the proper ecclesiastical court, or other probate tribunal, in a suit there instituted to repeal the probate.* The principle would be the same, even if it were alleged in the bill, that the testator was a lunatic at the time of making the will ; for the jurisdiction belongs to another forum to try that question.^ So, if an admin- istrator should bring a bill for discovery of the personal estate, it would be no defence to the suit, that the administration was now in litigation upon a suit in the proper court to repeal it ; for the plaintiff has a present title, which is good, at least until the litiga- tion is determined.® § 512. And although (as we have seen) the want of a title in the plaintiff is fatal ; yet, if a doubtful title only is shown, it will- be suflBcient to support a bill, which seeks the assistance of the court to preserve the property in dispute, pending a litigation.^ ' Cholmondeley v. Clinton, 1 Turn. & Russ. 116 ; § 245, 245 a, § 254. " Gething v. Vigurs, V. C. (England), November 8, 1836. See also Rhodes v. Warburton, 6 Sim. R. 617, where the legatees of a testator were joined as plain- tiffs with the executor, in suing for a debt due to his estate ; and a bill was held not demurrable. On that occasion, the vice-chancellor said: "Legatees cannot file a bill against a debtor to the testator's estate, unless there is collusion be- tween the executor and the debtor. But if the executor chooses to make the legatees co-plaintiffs with him, I do not think, that superfluity renders the record not sustainable. Persons are brought here, who are not necessary parties to the suit. But it is not so injurious, as to make the bill not sustainable. It is not an objection, that a defendant can take." » Mitf Eq. PI. by Jeremy^ 157 ; Ante, § 318. * Cooper, Eq. PI. 170; Griffith v. Hamilton, 12 Ves. 298, 307; Gains and Wife V. Chew, 2 How. Sup. Ct. R. 619. But see Barnesley v. Powel, 1 Ves. 284, 288 ; Jones v. Frost, Jac. R. 466. ' Cooper, Eq. PI. 170. » Cooper, Eq. PI. 170 ; Wright v. Bluck, 1 Vern. 106, 107 ; Mitf. Eq. PI. by Jeremy, 157. ' Mitf. Eq. PI. by Jeremy, 157 ; Cooper, Eq. PI. 171. 440 EQUITY PLEADINGS. [CH. X. Therefore, where a suit was pending in an ecclesiastical court, touching the right of representation to a person deceased, a demur- rer by one of the parties to that suit, who had possessed himself of the personal estate of the deceased, to a bill for an account, filed by the other party, was overruled.^ The ground of this de- cision seems to have been, the deficient power of the ecclesiastical court for securing the property, whilst the suit was there depend- ing ; and the doubt, as to the title of the parties, was the very ground of the application to a court of equity. § 513. Another objection, which may be taken by demurrer to the substance of the bill, is, that, although the plaintifiFhas an in- terest in the subject-matter of the suit, and a title to institute a suit concerning it ; yet he has no right to call upon the defendant to answer his demand.^ This objection frequently arises from the want of privity between the parties. But it is not necessarily con- fined to such cases ; nor indeed does it apply to all cases, where there is a want of privity.^ § 514. Although the plaintiff in such suit to recover a legacy has an interest in the testator's estate, and has a right to have it applied to answer his demands ; yet he has no right to institute a suit against the debtors for the purpose of compelling them to pay their debts in satisfaction of his demands ; for there is no privity between such creditor and the debtors.* But a special case may exist, in which such relief would be given ; as, for example, where there is collusion between the executor and the debtors ; or where the executor is insolvent.^ ' Mitf. Eq. PI. by Jeremy, 157, 158 ; Cooper, Eq. PI. 171 ; Phipps v. Steward, 1 Atk. 286. See also Morgan v. Harris, 2 Bro. Ch. K 121. ' Mitf. Eq. PI. by Jeremy, 158 ; Ante, § 227, 266. » Cooper, Eq. PI. 174 ; Id. 142 ; ToUett v. Tollett, Ambl. R. 194 ; Hawkins^. KeUey, 8 Ves. 308; 1 Mont. Eq. PI. 44, 45, 115 ; Hare on Discov. 105-109. In cases of contribution, there is often a want Qf privity ; and yet a bill will lie against a party, who is bound to contribute ; as, for example, in cases of contribution of different shippers in the case of a general average. 1 Story on Equity Jurisp. §490,491; Id. §483-490. * Cooper, Eq. PI. 175 ; Mitf. Eq. PI. by Jeremy, 158 ; Ante, § 262 ; Alsager v. Johnson, 4 Ves. 217 ; Utterson v. Mair, 4 Bro. Ch. R. 270 ; S. C. 2 Ves. jr. 95 ; Beckley v. Dorrington, cited 6 Ves. 749 ; Doran v. Simpson, 4 Ves. 651 ; Bur- roughs V. Elton, 11 Ves. 29 ; Long v. Majestre, 1 John. Ch. R. 305 ; Newland v. Champion, 1 Ves. 104 ; Ante, § 227. ' Alsager v. Rowley, 6 Ves. 748 ; Doran v. Simpson, 4 Ves. 651 ; Mitf. Eq. PI. by Jeremy, 158, 159 ; Cooper, Eq. PI. 175 ; 1 Story on Equity Jurisp. § 423, §512-518.] DEMDKEEBS TO RELIEF. 441 § 515. For the same reason, if a debtor has conveyed his prop- erty in trust for the benefit of his creditors, tlie latter cannot ordi- narily maintain any suit touching the property ; but the suit should be in the name of the trustee.^ Thus, for example, if a mortgagor should make a conveyance in trust for the benefit of his creditors, the trustees, and not any of the creditors interested in the trust, would be the proper parties to bring a bill to redeem the mort- gage.^ But if any special case can be made out, such as collusion between the mortgagee and the trustees ; or the refusal of the lat- ter to redeem ; or the insolvency of the latter ; in every such case, the creditors may bring a bill to redeem the mortgage.^ § 516. For the same reason, where a person has become a bank- rupt, and assignees are appointed, neither he, nor any of the cred- itors can ordinarily maintain a suit against any debtor to his estate, or to reduce any of his property into possession ; for the right be- longs to the assignees.* But if the assignees should collude with the other party ; or should refuse to bring a suit for the benefit of the bankrupt and of his estate, then, in such case, the bankrupt, or any creditor may do so.^ • § 517. Upon a similar ground, a bill is not maintainable by a creditor of a legatee against the executt)r and the legatee, to com- pel the executor to pay over the legacy, in discharge of the debt of the legatee ; for there is no privity between the creditor and the executor in such a case ; and the latter is solely amenable to the legatee.^ The same doctrine is applicable to the case of a suit, brought by a party interested, against a creditor or legatee, who has been improperly paid or overpaid by the executor.^ § 518. But there is often a privity created by operation of law 581 ; 2 Story on Equity Jurisp. § 828 ; Ante, § 178, 227, 263 ; Pearce v. Hewitt, 7 Sim. K. 471. 1 Cooper, Eq. PI. 174, 175. ' Ibid. = Troughton v. Binkes, 6 Ves, 573 ; Cooper, Eq. PI. 174, 175. * Ibid. 5 Cooper, Eq. PI. 174, 175 ; Franklyn v. Ferae, Barnard, Ch. R. 30 ; Trough- ton V. Binkes, 6 Ves. 573, 575 ; Saxton v. Davis, 18 Ves. 72 ; Barton v. Jayne, 7 Sim. R. 24 ; Makepeace v. Haythorne, 4 Russ. E. 244 ; Kaye v. Fosbrooke, 8 Sim. R. 28 ; Ante, § 495, and cases there cited; Post, § 726. ' Elmslie v. McAulay, 3 Bro. Ch. R. 624 ; Mitf. Eq. PI. by Jeremy, 158, 159 ; Ante, § 262 ; Cooper, Eq. PI. 175, 176. ' Cooper, Eq. PI. 176 ; Alsager v. Rowley, 6 Ves. 750 ; 1 Story on Eq. Jurisp. § 92, and note. 442 EQUITY PLEADINGS. [CH. X. between parties, without any direct and immediate contract or ne- gotiation between them. Thus, for example, a sale by an agent or factor will create a privity between the purchaser and his princi- pal, upon which a suit may be maintained, as well at law as in equity. Hence, the principal will have a right to maintain a bill for a dis- covery and an account against the purchaser, in respect to any such dealings with his agent and factor ; and the objection of a want of privity between them cannot be made available.^ § 519. Another objection, which may be taken by demurrer to the substance of the bill, is the want of interest of the defendant in the subject-matter of the suit.^ We have already had occasion to consider some of the cases arising under this head ; such, for example, as the cases of mere witnesses, of arbitrators, and of others, having no interest in the controversy .^ So, if a bankrupt ' Mitf. Eq. PI. by Jeremy, 159, 160 ; Cooper, Eq. PI. 176, 177. « Mitf. Eq. PL by Jeremy, 160 ; Cooper, Eq. PI. 177 ; 1 Mont. Eq. PI. 42 ; Hare on Discov. 63-83. « Ante, § 234, 235, 323 ; Newman v. Godfrey, 2 Bro. Ch. R. 332 ; Mitf. Eq. PI. by Jeremy, 159, 160 ; Cooper, Eq. PI. 177, 178 ; Fenton v. Hughes, 7 Ves. 287 ; Whitworth v. Davis, 1 Ves. & Beam. 545 ; Wakeman v. Bailey, 3 Barb., Ch. E. 485 ; How v. Best, 5 Madd. R. 19 ; Hare on Discov. 68. In Fenton v. Hughes, 7 Ves. 290, 291, an attempt was made to maintain the right to make a witness a party, upon the ground, that the discovery in equity would be more beneficial to the plaintiff than a mere examination at law. Lord Eldon dis- allowed the distinction, and on that occasion said : " The question, however, is, whether he can be examined at law for the plaintiff in equity with the same benefit, that would result from a discovery here. If he can, as no relief is to be given, it would introduce a new class of cases, to permit a bill for discovery to be filed against a party so purely a witness. It is impossible, that he can be ex- amined at law against the plaintiff, if the bill is true ; for he may be examined upon the voir dire ; and then his interest will come out. It is impossible also for the plaintiff at law to prevent his being examined for the defendant ; for'he may waive the objection of interest. This defendant, therefore, may, with some exceptions, be examined at law by parol as effectually as here by writing. The exceptions are these : First, I cannot satisfy myself, that a subpcena duces tecum is as operative for the production of books, papers, and writings, as a siibpxna upon a bill in this court. Secondly, in such a transaction as this, of considerable importance, the fact of usury being to be made out by proof of the nature and quality of the cloth, showing, that the sale was colorable, inspection may be ma- terial. But then the point is, whether, upon the distinctions arising out of such circumstances, the rule, not to make a mere witness a defendant, especially upon a bill for discovery, has ever been shaken ? I can find no such authority. This demurrer, therefore, must be allowed. I will not say, as it is not necessary to determine, whether a bill for relief might not be filed, upon the ground, that the § 518 - 621.] DEMURRERS TO RELIEF. 443 is made a party to a bill against his assignees in any matter touch- ing his estate, ordinarily he may demur ; for all his interest is transferred to his assignees.^ So a married woman, who is made a defendant to a bill against her husband, for the mere purpose of making her a witness, she having no interest in the suit, may, a fortiori, demur to the bill ; for she is not compellable, in any such case, to give testimony against her husband.^ § 520. And it is not only necessary, in order to prevent a de- murrer, that the bill should show, that the defendant has an inter- est in the subject-matter ; but it must also be shown, that he is liable to the plaintiff's demand, which is the groundwork of the bill.^ Thus, if a suit were brought by the obligee for satisfaction of a bond of the ancestor against his heir, alleging assets by de- scent, it would be a fatal defect on demurrer, that the bill did not allege, that the heir was bound by the bond.* § 521. Another ground of objection by demurrer is, when it appears on the face of the bill, that the object of the bill is to en- force a penalty, or a forfeiture ; for it is a universal rule in courts of equity, not to lend their aid to enforce any penalty or forfeit- ure ; but to leave the party to his remedy at law.^ There are ex- ceptions to the rule ; but they all stand upon peculiar grounds, -entirely consistent with its general scope and objects. Thus, for example, if the plaintiff seeking relief is solely entitled to take advantage of the penalty or forfeiture, and he expressly waives examination at law must be of necessity defective for bringing forward all that conscience requires ; and that what is withheld is withheld by a person having an interest in the question. But I cannot find an authority, that a person can be made a party to a bill for discovery merely, to aid the plaintiff in equity, as defendant at law, upon the circumstance, that the production and inspection of goods may be better compelled here. Demurrer allowed." See also Hare on Discov. 73 - 76 ; Id. 76 - 79 ; Day v. Drake, 3 Sim. R. 64. ^ Whitworth v. Davis, 1 Ves. & Beam. 545 ; Mitf. Eq. PI. by Jeremy, 161 ; Cooper, Eq. H- 178 ; Ante, § 231-233, 237 ; De Wolf u. Johnson, 10 Wheat. R. 384 ; Hare on Discov. 79-83. ^ Cooper, Eq. PI. 177, 178; Barron v. Grillard, 3 Ves. & Beam. 165; Le Texier v. Marquis of Anspach, 5 Ves. 322 ; S. C. 15 Ves. 164. I ' Ante, § 257; Mitf. Eq. PI. by Jeremy, 162, 163; Cooper, Eq. PL 178, 179. * Ibid. * 2 Story on Eq. Jurisp. § 1319, 1494; Beames, Eq. PI. 258-271; Mitf. Eq. PI. by Jeremy, 193-195, 197 ; Hare on Discov. 131-148 ; Paxton v. Douglass, 16 Ves. 239 ; S. C. 19 Ves. 225 ; Horsburg v. Baker, 1 Peters, R. 232, 236 ; Post, § 575-588 ; McKim v. The White Hall Co. 2 Md. Ch. Decisions, 516. 444 EQUITY PLEADINGS. [CH. X. any right to the penalty or forfeiture, the bill is maintainable.! So, a defendant may so act, or so contract, as to waive, on his own part, any objection to a bill to enforce a penalty or forfeiture. Thus, he may contract to answer fully a bill of discovery which may involve a penalty or forfeiture, but not a crime ;2 or he may by his acts, in fraud of the plaintiff and in violation of law, by implication, exclude himself from the benefit of the objection, if allowing it would subvert the whole policy of the law.^ 1 Southall V. ■ , 1 Younge, K. 308, 316; Hare on Discov. 137, 138; Mitf. Eq. PI. by Jeremy, 195, 196. ^ Post, § 577, 589. ' 8 Hare on Discovery, 139-144, and the cases there cited; South Sea Company V. Bumstead, Mosel. E. 74, 87; S. C. 1 Eq. Abridg. 77; Green v. Weaver, 1 Sim. R. 404, 429, 431 ; African Company v. Parish, 2 Vern. 244 ; Mitf. Eq. PI. by Jeremy, 195, 287, 288; Cooper, Eq. PI. 205-207; Beames, Eq. PI. 260 - 265. Mr. Hare (on Discovery, p. 139 - 144) has devoted a section to the consideration of these exceptions, which will reward a diligent perusal. The case of Green v. Weaver, 1 Sim. R. 430, seems to have pressed the exception far beyond former cases, and is not easily reconcilable with the strong language of Lord Eldon in Paxton v. Douglass, 16 Ves. 239 ; S. C. 19 Ves. 225, notwith- standing the explanation by the vice-chancellor (Sir Anthony Hart). See also Ex parte Dyster, 1 Meriv. R. 155 ; Hare on Discov. 153, 154. Lord Redesdale has summed the general results of the authorities on this subject, in the following words : " If the plaintiff is alone entitled to the penalties, and expressly waives them by his bill, the defendant shall be compelled to make the discovery ; for it can no longer subject him to a penalty. As, if a rector, or improprietor, or vicar, files a bill for tithes, he may waive the penalty of the treble value, to which he is entitled by the statute of 2 and 3 Edward VL, and thus become entitled to a dis- covery of the tithes subtracted. And though a discovery may subject a defend- ant to penalties, to which the plaintiff is not entitled, and which he consequently cannot waive ; yet if the defendant has expressly covenanted not to plead or de- mur to the discovery sought, which is the common case with respect to servants of the East India Company, he shall be compelled to answer. Where, too, a person by his own agreement, subjects himself to a payment, in the nature of a penalty, if he does a particular act, a demurrer to discovery of that act will not hold. Thus, where a lessee covenanted not to dig loam, clay, sand, or gravel, except for the purpose of building on the land demised, with a proviso, that if he should dig any of those articles for any other purpose, he should pay to the lessor twenty shillings a cart-load, and he afterwards dug great quantities of each arti- cle ; upon a bill for discovery of the quantities, waiving any advantage of possible forfeiture of the term, a demurrer of the lessee, because the discovery might subject him to a payment by way of penalty, was overruled." Mitf Eq. PI. by Jeremy, 195, 196 ; Cooper, Eq. PI. 205, 206. There are other exceptions, be- sides those stated in the text ; as, for example, cases where a statute has given the right of discovery, such as in the statutes respecting gaming and stock-jobbing. Cowan V. Phillips, 3 Anst. 843 ; Bancroft v. Wentworth, 3 Bro. Ch. R. 11 ; Hare §521-523.] DEMURRERS TO RELIEF. 445 § 522. The objection above stated, may not only apply to the whole bill, when the sole purpose of it is to enforce a penalty of forfeiture ; but it is equally applicable to a particular interrogatory in a bill, otherwise unexceptionable, which may expose the defend- ant to a penalty or forfeiture.^ Thus, for example, where the de- fendant became a purchaser, under a decree, of the first presenta- tion to a living, of which the plaintiff was seised for life ; and af- terwards the second presentation was conveyed to the defendant by the plaintiff ; and the latter afterwards filed a bill to set aside the transaction on account of fraud ; and in his bill he asserted, that the defendant had sold the first presentation to the present incumbent of the first presentation ; and also sought a discovery from the defendant of the alleged sale ; the defendant objected in his answer, by way of demurrer, to the discovery, upon the ground, that it might subject him to the pains and penalties of simony ; and the objection was held good by the court.^ So, where a cross bill was brought against a rector to establish a modus, and the cross bill alleged, that the defendant had been presented to the living under a simoniacal contract, and stated certain facts as evi- dence thereof, and prayed a discovery thereof, and the defendant, in his answer, demurred to the discovery, so far as it respected those facts, on the ground, tha^ it might subject him to forfeitures and penalties ; the court allowed the demurrer to those interroga- tories.^ § 523. And the objection is not personal, and confined to the original party defendant ; but, if he should die, his personal rep- resentative would be entitled to the same protection, which the testator or intestate might claim, if there should be any interest in such personal representative, which might be forfeited or affected by the discovery.* ' » on Discov. 133-137 ; Rawden v. Shadwell, Ambl. R. 269, and Mr. Blunt's note; Newman v. Franco, 2 Anst. 519 ; Andrews v. Berry, 3 Anst. 634 ; Cooper, Eq. PI. 207. ' Chauncey v. Tabourden, 2 Atk. 392, 393 ; Southall v. , 1 Younge, R. 302, 316 ; Parkhurst v. Lowten, 1 Meriv. E. 391 ; Chambers v. Thomson, 4 Bro. Ch. R. 434, 436, and Mr. Belt's note (5) ; Hare on Discov. 133, 154; Beames, Eq. PI. 260-264. ' Parkhurst v. Lowten, 1 Meriv. R. 391. " Southall V. , 1 Younge, R. 308, 315, 316 ; Attorney-General v. Sudell, Prec. Ch. 214. See Gray v. Hasketh, Ambl. 268, and Mr. Blunt's note. * Parkhurst v. Lowten, 1 Meriv. R. 391. EQ. PL. 38 446 EQUITY PLEADINGS. [CH. X. § 524. But the same principle applies to a case, where the dis- covery demanded might lead to a legal accusation of a crime ; for no person is ever bound to accuse himself of a crime ; or to furnish any evidence whatsoever, which shall lead to any accusation of that nature;^ The subject will again come under review, in con- sidering the grounds of demurrer to bills of discovery only.^ § 525. But the objection is strictly confined to the point of the discovery sought, and does not affect the jurisdiction of the court to grant relief. For a party shall not protect himself against re- lief in a court of equity, by alleging, that, if he answers the bill filed against him, he must subject himself to the consequences of a supposed crime ; although the court will not force him by his own oath to subject himself to punishment. Therefore, in the case of a bill to inquire into the validity of deeds upon a suggestion of forgery, the court has entertained jurisdiction of the cause ; and although it has not obliged the party to a discovery of any fact, which might tend to show him guilty of the crime, yet it has di- rected an issue to try, whether the deeds were forged.^ [* § 525 a. Demurrers for want of equity are more common in practice than for all other causes, probably ; and they proceed upon almost an infinite variety of grounds. A demurrer for this rea- son is good without any reference to the particular defect in the allegations of the bill.* And it has been held, that the defendant ,is not justified in omitting to demur to a bill, because it contains charges of fraud against him which he is desirous of answering.^ § 525 h. It has been lately decided by Vice-Chancellor Kinders- ley,6 that where a demurrer, upon the record, for want of parties, is overruled for want of specifying the particular party omitted, that it is the same as if no demurrer for want of parties had been put upon the record, and left the party open to demur, ore terns, at the hearing, for that cause ; and that the same rule would ap- ply, if the demurrer upon the record was for omitting one party, and the defendant demurred, ore tenus, for not joining some other party.'^ ' Cooper, Eq. PI. 203, 204 ; Mitf. Eq. PI. by Jeremy, 194, 195 ; Post, § 575- 578, 597, 598 ; Earl of Litchfield v. Bond, 6 Beavan, 88. * Post, §575-598. . ' Mitf. Eq. PL by Jeremy, 196 ; Brownsword v. Edwards, 2 Ves. 246 ; Beames, Eq. PI. 263. [* * Middlebrook v. Bromley, 8 Law. T. N. S. 414. = Mitf. Eq. PI. by Jeremy, 196 ; 2 Ves. 246. , » Pratt V. Keith, 10 Jur. N. S. 305. ' Ibid. §524-528.] DEMURRERS TO RELIEF. 447 § 525 c. Where one of the plaintiffs cannot maintain the bill, this may be taken advantage of by demurrer, and is fatal to the whole bill.^ But if the bill is not maintainable as to one of the defendants, who does not appear, the objection cannot be raised by the other defendant.^] § 526. These are the principal heads of objection to the sub- stance of bills of relief, upon which it seems necessary to dwell. In concluding the subject, it may be stated, that if, for any reason, founded on the substance of the case, as stated in the bill, the plaintifiFis not entitled to the relief which he prays, the defendant may demur. Many of the grounds of demurrer, already men- tioned, are properly referable to this head. It is obvious, that if the case stated, is such, that, admitting the whole bill to be true, the court ought not to give the plaintiff the relief or assistance which he requires, in the whole, or in part, the defect, thus ap- pearing upon the face of the bill, is not only a sufficient, but an appropriate ground of demurrer.^ And, where the objection is thus on. the face of the bill, it should be taken by a demurrer, and ought not to be taken by a plea.* § 527. Secondly. We come, ia the next place, to objections to the frame and form of the bill, which may be taken by demurrer. These are, (1.) Defects of form ; (2.) Multifariousness ; and, (3.) Want of proper parties, or misjoinder of parties. § 528. (1.) Defects, for want of form, must ordinarily be taken advantage of by demurrer, assigning the defect of form as a special cause ; for, generally, the court will not listen to such objections at the hearing, if the case stated is such that the court can proper- ly proceed to a decree.^ The want of form, which is most usually ^ Vaughn V. Lovejoy, 34 Alabama, 437; Jones v. Quinnipiack Bank, 29 Conn. 25. ' Garner v. Lyles, 35 Miss. 176.] « Mitf. Eq. PI. by Jeremy, 163 ; Piggott v. Williams, 6 Madd. K. 95 ; Wyatt, Pr. Reg. 167. * Billings V. Flight, 1 Madd. R. 230 ; Hovenden v. Annesley, 2 Sch. & Lefr. 638 ; Utterson v. Mair, 2 Ves. jr. 95 ; S. C. 4 Bro. Ch. R. 270 ; Mitf. Eq. PI. by Jeremy, 218. ' Ante, § 453. Where, at the hearing, it appears that there is a defect of form, and certain facts have occurred since the filing of the bill, which are essential to a proper decree, the court will, in special cases, especially where great expenses have been incurred, order the cause to lie over, and give leave to file a supple- mental bill, to bring those matters formally before the court. Mutter v. Chauvel, -5 Euss. R. 42. 448 EQUITY PLEADINGS. [CH. X. insisted on, is the want of due certainty in the allegations, or the loose and inartificial structure of tlje bill, or the omission of some prescribed formularies.^ In regard to the latter, it is to be ob- served, that any irregularity in the frame of a bill, not only of this sort, but of any other sort, may be taken advantage of by demur- rer ; as, for example, if a bill is brought contrary to the usual course of the court.^ In regard to the latter, we have already had occasion, in a preceding part of this work, to consider what is the proper structure and form of bills as to these particulars, and es- pecially as to certainty ; and therefore, it is unnecessary to repeat them in this place. ^ There are few additional illustrations which would be afforded by any further survey of the authorities.* It may 1 Mont Eq. PI. 113-115 ; Kirkley v. Burton, 5 Madd. R. 378. " Mitf. Eq. PI. by Jeremy, 206. Lord Kedesdale, in his treatise, (pp. 206- 207,) has given several illustrations, as to irregularities of this sort. He there says : " As where, after a decree directing incumbrances to be paid according to priority, the plaintilF, a creditor, obtained an assignment of an old mortgage, and filed a bill to have the advantage it would give him by way of priority over the demands of some of the defendants. This was a bill to vary a decree, and yet was neither a bill of review, nor a bill in nature of a bill of review, which are the only kinds of bills which can be brought to affect or alter a decree, unless the ' decree has been obtained by fraud. So, if a supplemental bill is brought against a person not a party to the original bill, praying that he may answer the original bill, and no reason is suggested why he could not be made a party to the original bill by amendment, he may demur. If an irregularity arises in any alteration of a bill by way of amendment, it may also be taken advantage of by demurrer. As if a plaintiff amends his bill, and states a matter, arisen subsequent to the filing of the bill, which, consequently, ought to be the subject of a supplemental bill, or bill of revivor. But if a matter, arisen subsequent to the filing of the bill, and properly the subject of a supplemental bill, is stated by amendment, and the de- fendant answers the amended bill. It is too late to object to the Irregularity at the hearing. For, as the practice of introducing by supplemental bill, matter arisen subsequent to the institution of a suit, has been established merely to preserve order in the pleadings, the reason on which it is founded ceases, when all the proceedings to obtain the judgment of the court have been had without any incon- venience arising fr6m the irregularity." ' Ante, § 26-49, 240-270; Mitf Eq. PL by Jeremy, 123-125, 155, 163; Cooper, Eq. PI. 126, 181, 182; Brooke v. Hewitt, 3 Ves. 253; Harrison v. Hogg, 2 Ves. jr. 322, 328. Where the equity against a purchase Is founded upon an allegation in the bill, that he had notice at the time of the purctaser, it is necessary that the charge should be alleged in direct and positive terms. If it be loose and ihdeterminate, stating probable or suspicious circumstances^ only, that will not be sufficient. Flagg v. Mann, 2 Sumner, R. 549, 550. * See Cooper, Eq. PI. 180, 181 ; Browne v. Warner, 14 Ves. 156 ; 1 Mont. Eq. PI. 94, 95. § 528 - 630.] DEMURRERS TO RELIEF. 449 be remarked, however, that where the bill consists of a great varie- ty of circumstances, the evidence of which might sustain the relief asked, with some modifications, a demurrer will not properly lie ; for it has been said, that, to sustain a demurrer, there must be a neat, short point, amounting to an absolute denial of the plaintiff's title to any relief.^ § 529. Sometimes the want of certainty in a bill may be cured by an allegation, that the plaintiff has no means of setting forth the particular instrument, under which he claims, with more cer- tainty.2 Thus, for example, where the bill was for a discovery, and it stated, that the plaintiff claimed under a settlement, which was in the possession of the defendant ; and that the plaintiff was unable to set it forth with more certainty than he had done on that account ; and it admitted, that his statement might be inac- curate ; upon demurrer, the bill was sustained.^ § 530. (2.) In the next place, as to multifariousness. We have already had occasion to consider this subject, in some of its most important aspects, in the preceding pages;* and a few additional observations may suffice in this place.^ To lay down any rule universally applicable, as to multifariousness, or to say, what con- stitutes multifariousness, as an abstract proposition, is (it has been said) upon the authorities utterly impossible. The cases upon the ' Brooke v. Hewitt, 3 Ves. 253. ^ Wright V. Plumptre, 3 Madd. E. 489 ; Hare on Discov. 44. » Ibid. * Ante, § 271 - 284 ; Id. § 278 a. See also Cooper, Eq. PL 182 - 185. ' Lord Kedesdale has laid down the general doctrine in the following terms : " The court will not permit a plaintiff to demand, by one bill, several matters of different natures against several defendants ; foi; this would tend to load each defendant with an unnecessary burden of costs, by swelling the pleadings with the state of the several claims of the other defendants, with which he has no connec- tion. A defendant may, therefore, demur ; because the plaintiff demands several matters of different natures of several defendants by the same bill. But eis the defendants may combine together, to defraud the plaintiff of his rights, and such a combination is usually charged by a bill, it has been held, that the defendant must so far answer the bill, as to deny combination. In this, however, the de- fendant must be cautious ; for if the answer goes further than merely to deny combination, it will overrule the demurrer. A demurrer of this kind will hold only, where the plaintiff claims several matters of different natures. But when one general right is claimed by the bill, though the defendants have separate and distinct rights, a demurrer will not hold. Mitf. Eq. PI. by Jeremy, 181, 182, and notes (a) and (J) ; Ante, § 271 - 278 a; Id. § 279 - 289. 38* 450 EQUITY PLEADINGS. [CH. X- subject are extremely various ; and the court, in deciding them, seems to have considered, what was convenient in particular cir- cumstances, rather than to have attempted to lay down any abso- lute rule.^ The only way of reconciling the authorities upon the subject is, by adverting to the fact, that although the books speak generally of demurrers for multifariousness ; yet, in truth, such demurrers may be divided into two kinds. (1.) Frequently, the objection raised to a bill, though termed miiltifarious, is, in fact, properly speaking, a misjoinder of causes of suit ; that is to say, the cases or claims, asserted in the bill, are of so different a char- acter, that the court will not permit them to be litigated in one record.^ It may be, that the plaintiffs and the defendants are par- ties to the whole transactions, which form the subject of the suit ; but nevertheless, those transactions may be so dissimilar, that the court will not allow them to be joined together ; but will require distinct records.^ (2.) But what is more familiarly understood by multifariousness, as applied to a bill, is, where a party is brought as a defendant upon a record, with a large portion of which, and of the case made by which, be has no connection whatsoever. In such a case, he has a right to demur, and to state the evil of thus uniting distinct matters in one record to be, (and so the old form of demurrer was,) that it put the parties to great and useless ex- pense. Such an objection could have no application to the case of a mere misjoinder of different causes of action between the ' Campbell v. Mackay, 1 Mylne & Craig, 618; White v. Curtis, 2 Gray, 471. As a matter of right, this objection cannot be taken by the parties, except by demurrer or plea or answer ; and if not so taken, it is deemed to be waived. It cannot be insisted upon by the parties even at the hearing in the court below, although it may at any time be taken by the court sua sponte, wherever it is deemed by the court to be necessary or proper to omit it in the due administra- tion of justice. .Oliver v. Piatt, 3 Howard, S. C. R. 412; see Nelson m. HiU, 5 Howard, R. 127. ^ Ante, § 271-284. ' Campbell v. Mackay, 1 Mylne & Craig, E. 618 ; Attorney-General v. gt. John's College, 7 Sim. R. 241 ; Shackell v. Macaulay, 2 Sim. & Stu. 79. The following cases illustrate this first sort of multifariousness. Ward v. Duke of Northumberland, 2 Anst. R. 469, so far as the demurrer of the Duke was con- cerned ; Salvidge v. Hyde, 5 Madd. R. 138 ; Saxton v. Davis, 18 Ves. 72 ; Attor- ney-General V. Goldsmiths' Company, 5 Sim. R. 670; Knye v. Moore, 1 Sim. & Stu. 61. These cases are fully commerited on in Campbell v. Mackay, 1 Mylne & Craig, 616-624. -See also Lund v. Blanshard, 4 Hare, R. 9; Short v. Emper- ingham. Holt's Equity, R. 61. Ante, § 271 - 278 a and note, 281 a. § 530, 531.] DEMURRERS TO RELIEF. 461 same parties, plaintiffs and defendants, and none others, and it might more correctly be called a misjoinder of parties.^ § 531. In the former class of cases, where there isa joinder of distinct claims between tlie same parties, it has never been held, as a general proposition, that they cannot be united, and that the bill is of course demurrable for that cause alone, notwithstanding the claims are of a similar nature, involving similar principles and results ; and may, therefore, without inconvenience, be heard and adjudged together. If that proposition were to be established, and carried to its full extent, it would go to prevent the uniting of several instruments in one bill, although the same parties were liable in respect of each, and the same parties were interested in the property, which was the subject of each. So, that if, for in- stance, a father executed three deeds, all vesting property in the same trustees, and upon similar trusts, for the benefit of his chil- ' Campbell v. Mackay, 1 Mylne & Craig, K. 618, 619. The following cases illustrate this second sort of multifariousness. Ward v. Duke of Northumbei-land, 2 Anst. 469, so far as Beverley's demurrer applied ; Salvidge v. Hyde, 5 Madd. K. 138 ; S. C. on Appeal, Jacob, R. 161 ; Attorney-General v. Merchant Tailors' Company, 5 Sim. E. 288; S. C. 1 Mylne & Keen, 189. These cases are also fuUy commented on in Campbell v. Mackay, 1 Mylne & Craig, 616-624. Ante, § 270, 271 a - 278 a ; Id. § 274 - 284. The form of a demurrer for a misjoinder is as follows : " This defendant, by protestation, not confessing any of the matters and things contained in the said bill to be true, as therein alleged, saith, that he is advised by his counsel, that the complainant's said bill is insufficient, and to which, by the rules of this honorable court, this defendant ought not to be com- pelled to make or give any answer ; and, for cause of demurrer thereunto, this defendant showeth, that it appears by the said bill, that the same is exhibited against this defendant and J. S. for several distinct matters and causes, in many whereof, as appears by the said bill, this defendant is not, in any manner, interested or concerned ; by reason of which distinct matters, the said complainant's said bill is drawn out to a considerable length, and this defendant is compelled to take a copy of the whole thereof, and by joining this defendant and distinct matters together, which do not depend on each other, in the said bill, the pleadings, orders, and proceedings will, in the progress of the said suit, be intricate and prolix, and this defendant put to the unreasonable and unnecessary charges in taking copies of the same, although several parts thereof no ways relate to or concern him ; for which reason, and for divers other errors appearing in the said bill, this defendant doth demur thereto, and he prays judgment of this honorable court, whether he shall be compelled to make any further or other answer to the said biU ; and he humbly prays to be dismissed from hence with his reason- able costs on this behalf sustained." Van Heyth. Eq. Drafts. 422. See also another form of demurrer for multifariousness, in Shackell v. Macaulay, 2 Sim. & Stu. 79. 452 EQUITY PLEADINGS. [CH. X. dren, although instruments and the parties heneficially interested under all of them were the same, it would be necessary to have as many suits as there were instruments.^ Such a rule, if established in equity, would be very mischievous and oppressive in practice ; and no possible advantage could be gained by it. It would lead to a multiplication of suits in cases, where it could answer no as- signable purpose but to have the subject-matter of the contest split into a variety of separate bills. ^ § 532. No such rule, however, has been established. On the contrary, a different doctrine has been maintained ; and it seems now supported by the most satisfactory authority. Thus, for ex- ample, where a suit was brought against a corporation to establish eight charitable trusts, created by distinct instruments, different donors, at different times, for charitable purposes, generally simi- lar in their nature ; and no other corporation were interested in any of them but the last charity ; it was held by the court, upon a demurrer for multifariousness, that the bill was maintainable for the first seven charities ; and that the bill might be amended by striking out the eighth charity, in which another corporation was interested.^ § 533. The result of the principles to be extracted from the cases on this subject seems to be, that where there is a common liability, and a common interest, a common liability in the defend- ants, and a common interest in the plaintiffs, different claims to ' Campbell v. Mackay, 1 Mylne & Craig, 617. A bill is multifarious in mix- ing up the independent claims which a plaintiff has personally and those which he has as administrator. Carter v. Treadwell, 3 Story, R. 25. [But a widow who is administratrix of her husband's estate, and brings a bill in equity to redeem real estate mortgaged by her husband, does not make the bill multifarious, by therein claiming to maintain her suit in both capacities. For the simply claiming the same thing in different titles, will not render a bill multifarious. Robinson v. Guild, 12 Mete. 323.] | ' Campbell o. Mackay, 1 Mylne & Craig, E. 617, 618; Attorney-General u. Cradook, 8 Mylne & Craig, 85. ' Attorney-General v. Merchant Tailors' Company, 5 Sim. E. 288 ; S. C. 1 Mylne & Keen, 191, 192, 289; Campbell v. Mackay, 1 Mylne & Craig, 622. But see Attorney-General v. Goldsmiths' Company, 5 Sim. R. 670, and the com- ments thereon in Campbell v. Mackay, 1 Mylne & Craig, 623 ; Attorney-General V. St. John's College, 7 Sim. 241. In this last case, the vice-chancellor said, one test, by which we might ascertain, whether an information was multifarious, or embraced one object only, was to ascertain whether one defence can be made to the whole of it. See Ante, § 273. §531-535.] DEMUEBEES TO RELIEF. 458 property, at least if the subjects are such as may without incon- venience be joined, may be united in one and the same suit.^ [Thus, a bill is not necessarily multifarious, by reason of its seek- ing to redeem two distinct mortgages of .different parcels of real estate, or by reason of its seeking specific performance of different contracts relating to different parcels of real estate.^] § 534. Indeed, where the interests of the plaintiffs are the same, although the defendants may not have a coextensive common in- terest, but their interests may be derived under different instru- ments, if the general objects of the bill will be promoted by their being united in a single suit, the court will not hesitate to sustain the bill against all of them.^ A fortiori, this doctrine would seem to apply to a case where the defendants take under different in- struments for the benefit of the plaintiffs, and the plaintiffs have a common interest, and the defendants represent and are interested in all the questions raised on the record, and the suit is for a com- mon object.* § 535. These are cases, where the claims are several and distinct in respect to the defendants, but they are joint in respect to the plaintiffs. The doctrine has gone further; and, in some cases, where the interests of the plaintiffs were distinct, and yet of a sim- ilar nature, against the defendants, the objection of multifarious- ness has been disallowed. Thus, for example, where the residuary legatees under one will were the appointees of a share of another testator's estate, which share was taken under the first will ; and the bill was brought against the personal representatives of both testators for an account ; upon a demurrer for multifariousness, it was held, that the bill was maintainable ; and that the plaintiffs were entitled to unite the accounts of both estates in one and the same suit ; and that it was not multifariousness ; ^ for although it was true, that the executor of one estate had no concern with the other, yet the demand of the plaintiffs necessarily involved the ' Campbell v. Mackay, 1 Mylne & Craig, 623, 624 ; Attorney-General v. Cra- dock, 3 Mylne & Craig, 85 ; Nelson v. Hill, 5 Howard, R. 127. ^ Kobinson v. Guild, 12 Mete. 323. ' Campbell v. Mackay, 1 Mylne & Craig, 603, 623 ; Attorney-General v. Cra- dock, 3 Mylne & Craig, 85 ; Attorney-General v. St. John's College, 7 Sim. R. 241, 254; Ante, § 285 a. * Campbell v. Mackay, 1 Mylne & Craig, 603, 623, and cases before cited. ' Turner v. Robinson, 1 Sim. & Stu. R. 313 ; 8. C. 6 Madd. K. 94. 45i EQUITY PLEADINGS, [CH. X. accounts of both estates. But there is some reason to doubt, if this decision is upon principle maintainable.^ § 536. So, where a mother, who claimed an annuity for herself, joined her children with her as plaintiffs in a bill, the object of which was to establish two distinct claims, arising under separate instruments, the mother claiming the annuity under one, and the children a joint interest with the mother by a settlement under the other ; on a demurrer for multifariousness, the court disallowed it, saying, that the whole case of the mother being properly the subject of one bill, the suit did not become multifarious, because all the plaintiffs were not interested to an equal extent.^ It may be added, that the annuity given to the mother was upon the ground of her maintaining the children.^ § 537. There is yet another case still more strong, where a bill was filed by seventy-two underwriters, to restrain several actions upon different policies of insurance, effected by the defendants upon different ships. The defendants had a common interest in all the actions, as the owners of all the ships, and the plaintiffs a common defence in all the actions. But the plaintiffs in the bill had no joint interests. They were not only all liable to separate actions ; but they were actually defendants in separate actions. They united in one bill against all the plaintiffs in all the actions, for the purpose of obtaining a discovery in aid of their defence against all the actions. A demurrer was put in for multifarious- ness ; but it was overruled by the court.* > Dunn V. Dunn, 2 Sim. R. 329 ; Campbell v. Maekay, 1 Mylne & Craig, 624 ; Ante, § 279 and note. ' Knye v. Moore, 1 Sim. & Stu. 61 ; Campbell v. Mackay, 1 Mylne & Craig, 624. ' Dunn V. Dunn, 2 Sim. R. 329. * Kensington v. "White, 3 Price, R. 164; Irving v. Vienna, McClell. & Younge, R. 563. This case seems utterly inconsistent with principle, unless it can be asserted, that in all cases, where parties have a separate and distinct interest which they seek to assert by a defence, common to them all, against the adverse party, that community of defence is sufficient to entitle them to join in one bill. Such a proposition does not seem supported in any other case. Lord Abinger, in Mills V. Campbell, 2 Younge & Coll. 389, 396, 397, affirmed the principle of this case in the fullest manner, and applied it to the case not only of different policies, but of policies which might give rise to different actions,'as policies under seal and policies not under seal. On this occasion he said : " As to the objection for multifariousness, it appears to nSe that there is no distinction in principle between this case and those which have been cited, where the underwriters, §535-538.] DEMUKEEES TO RELIEF. 455 § 537 o. It is upon grounds very analogous, that it has heen held, that distinct and several judgment creditors may join in one bill for discovery and relief, in order to set aside fraudulent con- veyances, which have been made by their debtor in fraud of his creditors ; for they all have a common interest in the suit ; and if they succeed, the decree will be equally beneficial to all, in propor- tion to their respective interests.^ § 538. But in other cases, where the defendants have not a com- mon interest ; but the bill contains distinct matters, which may affect them in different ways ; or in which their interests may be entirely distinct and disconnected ; or with a large portion of which they have no concern whatsoever ; there upon the grounds already stated, the objection of multifariousness by different defendants is often- sustained. Thus, as we have already seen, in the case of the union of eight charitable donations in one bill, where another cor- poration was interested in one only, the latter, if made a defendant, might demur to the bill for multifariousness.^ So, where an in- formation and bill was filed for the general administration of two having been sued upon difierent policies, the court has not put them to file dif- ferent bills to restrain the actions. The circumstance that one of the policies in this case is under seal, and the other not under seal, can make no diiference. Formerly the only difference would have been, that in the actions on the policies the corporation of the London Assurance might have pleaded specially, that the plaintiff had no interest, while the others would have given that fact in evidence under the general issue. Ante, § 286 a. But the late act, (3 & 4 Will. IV. c. 42 ; Reg. Gen. H. T. 4 Will. IV.,) renders it necessary for underwriters, even in assumpsit, to plead specially in matters of this nature. Therefore, in fact, the two actions would be met by the same sort of plea. Upon these grounds, it ap- pears to me that the first objection fails." See also Janson v. Solarte, 2 Younge & Coll. 127. Notwithstanding the weight of this additional authority, it is not easy to state, how it can be reconciled with the general rule on the subject of multifariousness. Ante, § 161, note, 287 a. It is obvious, that Lord Cottenham was not prepared to go to this length in Campbell v. Mackay, 1 Mylne & Csaig, 624, 625. See Ante, § 279, note, 280, 281, 286 and note, 286 a; Mitf Eq. PI. by Jeremy, 181,182; Cooper, Eq. PI. 182, 183. See also Brinckerhoff v. Brown, 6 John. Ch. K. 139, 157 ; Ante, § 161, note ; 1 Mont. Eq. PI. 71 - 74. ' Brinckerhoff v. Brown, 6 John. Ch. E. 150, 151 ; S. P. Dix v. Briggs, 9 Paige, E. 595 ; Sizer v. MuUer, 9 Paige, 605 ; Ante, § 161, note, 286 and note, where this doctrine is questioned and considered. See also Hudson v. Maddison, 12 Simons, E. 416, 418; Ante, § 286 6, which is not. easily reconcilable with the cases stated in Post, § 537, and § 537 a. ' Ante, § 532 ; Attorney-General v. Merchant Tailors' Company, 5 Sim. 288 ; S. C. 1 Mylne & Keen, 189-191. See another illustration in Rheam v. Smith, 2 Phillips, 726. 456 EQUITY PLEADINGS. [CH. X. cliarities, and also impeaching a transaction, by which a part of the charity lands had been exchanged ; a demurrer by one of the defendants, who had taken the charity lands in exchange, on the ground of multifariousness, was allowed ; for the defendant had nothing to do with the general administration of the charities ; but only with so much of the matters, as regarded the exchange of the charity lands.^ This case was afterwards overruled ; but the doc- ' Attorney-General v. Cradook, 8 Simons, K. 466 ; S. C. reversed, 3 Mvlne & • Craig, 85. The reversal turned upon special grounds, not impugning the general rule. The bill charged collusion by the defendant (who took the objection of multifariousness) with the trustees, in a breach of the trust in respect to a part of the charity, estates ; and the Lord Chancellor was of opiniAi, that on this account the defendant was properly made a party to the suit, as the objects of the bill were not only to have an account of the charity, but also to have the exchange set aside, new trustees appointed, and the rents apportioned among the different charitable objects. On this occasion. Lord Cottenham said : " The defendant, Cradock, says, that he is improperly mixed up with the accounts relative to the other property of this trust ; and that, although the information states a case against him, which, if true, might entitle the Attorney-General to use him in respect of the property which is alleged to have been separated from the charity, he ought not to be made a party to the suit, the object of which is to have a gen- eral account taken of the property of the charity, and an apportionment of that property to the several purposes to which it is alleged to belong. The first point to be determined is, whether he is not so involved with that part of the property which Headlam is said to have diverted from the charity, as to make it impossible to proceed against Headlam, with respect to that property, without joining Cra- dock ; and I think, that, under the circumstances stated, it is quite impossible, that the suit could be prosecuted in the absence of Cradock. The alleged breach of trust consists in Headlam and Cradock diverting an estate, subject to pharita- ble purposes, by way of exchange, for an estate which belonged to them jointly. The exchange complained of is one transaction, and the 'consideration is property in which they were jointly interested. If that be so, the question is, whether the objection of multifariousness can possibly apply ; whether a party, who has been implicated with a trustee in a breach of trust, as to part of the property which is the subject of the information, can say that, in order to accommodate him, you shall sever the case against that particular trustee from the case against the trustees generally. In many cases it would be utterly impossible so to proceed ; for if you are bound to separate that part in which the trustee was concerned with the other party, you may make that suit defective which ought to be insti- tuted against all the trustees in respect of the whole interest in the charity. Now this suit would be defective, if that part which relates to the transaction in which Headlam and Cradock were together concerned, were separated from the rest, the object being to have an account taken of the whole of the charity property, and an apportionment of the property among the different purposes for which it was designed. Anything more inconvenient than having against Headlam one suit for that part of the account which relates to the property in respect of which § 538.] • DEMtEEERS TO RELIEF. 457 trine would have been regularly true, if the defendant had not so mixed himself up in the transactions, as to become a party to the Cradock is interested, and another suit for the remainder, there could not well be. It is obvious, that that would be a most inconvenient and improper mode of car- rying on the suit. Would it ever occur to any one to file one bill against the trustee for one part of the transaction, and another bill for another part of the transaction ? Then, is a party entitled to raise this objection, who has made him- self, by uniting with the trustee in a breach of trust, part and parcel of the trans- action ? The object of the rule against multifariousness is to protect a defendant from unnecessary expense ; but it would be a great perversion of that rule, if it were to impose upon the plaintiffs, and all the other defendants, the expenses of two suits instead of one. The object of the suit is to establish that Cradock has, by means of the transaction stated in the information, become a trustee of part of the charity estate. Suppose he had been an actual instead of a constructive trustee, and the object was to have accounts taken, and an administration made of the whole of the charity property, could he object on that ground, that he was a trustee only of a part of the charity property, and that he could not be made a party to a suit relating to the whole ! K that were to prevail, it would be direct- ly against the decision of the vice-chancellor, which I affirmed in Campbell v. Mackay, (1 Mylne & Craig, 603). There, some of the parties were trustees of part only of the trust property in question ; but the trusts were so united, by the allegations of the bill, that the whole was made one fund ; and first the vice- chancellor, and afterwards myself, were of opinion, that, in such a state of cir- cumstances, the objection of multifariousness could not be sustained. If that be so, according to the decision in Campbell v. Mackay, when the defendant is a trustee only of part, but which part is so blended with the remainder as to make it improper to separate it, is greater favor to be shown to a person who becomes one of the trustees by joining with another trustee in committing a breach of trust? The doctrine of multifariousness would be parried much too far if that were to be the case. That would have been the opinion, which independently of any decision, I should have formed upon principle, and upon the case of Campbell V. Mackay, in which both his honor the vice-chancellor, and myself, concurred. The present case, however, is almost identical with Salvidge v. Hyde, 5 Madd. 138, and Jac. R. 151, not according to the facts of that case, but according to the facts of the case which Lord Eldon assumed was brought before him. In Sal- vidge V. Hyde, there was not such a union ; there was a distinct case against the defendant Laying, who was alleged to have improperly purchased part of the testator's estate. The vice-chancellor, Sir J. Leaoh, was of opinion, that of itself would not raise the. objection of multifariousness, upon the ground, that there was one entire object, namely, the administration of the estato. When the case came before Lord Eldon, he did not go to that extent, nor did he concur in the opinion of the vice-chancellor. CuUiford was a trustee, who, as well as Laying, was alleged to have purchased part of the trust estate. It was there argued, at the bar, that the land sold to Culliford was in part included in the land sold to Laying, so that the purchases were necessarily connected. The parties at the bar were driven to that argument ; and then ■ Lord Eldon says : ' If Culliford purchased for himself, which he could not do, and then Laying bought of him, EQ. PL. 39 458 EQUITY PLEADINGS. [CH. X. breach of trust by the trustees, and if the very objects of the bill did not absolutely require him to be joined.^ § 639. The conclusion, to which a close survey of all the au- thorities will conduct us, seems to be, that there is not any posi- tive, inflexible rule, as to what, in the sense of courts of equity, constitutes multifariousness, which is fatal to the suit on demurrer. These courts have always exercised a sound discretion in determin- ing, whether the subject-matters of the suit are properly joined, or not; and whether the parties, plaintiffs or defendants, are also properly joined, or not. And it is not very easy, a priori, to say exactly, what is, or what ought to be the true line regulating the course of pleading on this point. All that can be done in each particular case, as it arises, is to consider, whether it comes nearer to the class of decisions, where the objection is held to be fatal, or to the other class, where it is held not to be fatal.^ And in new that would be one thing ; but what charge is there in the bill, that Laying pur- chased what CuUiford bought ? If an executor, having a power to sell, agrees to sell to A B, can a bill be filed against him, and also for a general administration of the estate ? He may have made infinitely too good a bargain with the trustee, to sell ; one that the court would not allow to stand ; but that is no ground for making him a party to the general administration. The case must depend on the charges of the bill ; they may be such as to unite persons who are ordinarily dis- united.' (Jac. K. 155.) It is impossible to misunderstand what Lord Eldon means. He says, in effect, ' You are proceeding against CuUiford. If the alle- gation in the bill connects the other party with the purchase by CuUiford, I don't dispute that he is properly joined ; but here is a failure of that ground, because the bill does not allege any connection between the purchase by CuUiford and the purchase by Laying ' ; and upon that ground, obviously, Lord Eldon decided the case ; namely, because the two purchases were not connected. Now,Aere it is different ; because there is one property, one consideration, and it is obviously impossible to proceed against one party without the other. I consider, therefore, not on general principles only, but on the distinct authority of Lord Eldon, that the objection of multifariousness cannot be sustained. The case put to him fi'om the bar in Salvidge v. Hyde, and on which he observes, was as nearly as possible identical with this. The demurrer must be overruled." (See Pearse v. Hewitt, 7 Sim. 471); Attorney-General v. Cradock, 3 Mylne & Craig, 93-97; Ante, § 271, 278 a; Salvidge v. Hyde, 5 Madd. K. 138 ; S. C. Jac. E. 151 ; Lund v. Blanshard, 4 Hare, K. 9 ; Ante, § 274. ^ Attorney-Ceneral v. Cradock, 3 Mylne & Craig, 85. ' CampbeU v. Mackay, 1 Mylne & Craig, 621, 622. Nearly all the preceding observations upon multifariousness have been drawn from the learned and elabo- rate judgment of Lord Cottenham, in CampbeU v. Mackay, 1 Mylne & Craig, 616, 626, which wiU amply reward the diligent perusal of the reader. In Hoggart v. Cutts, 1 Craig & Phill. 204, 205, Lord Cottenham said : " The cases in which the objection of multifariousness has been overruled at the hearing, are' cases where §538 -539 a.] demurrers to relief. 459 cases, it is to be presumed that the court will be governed by those analogies, which seem best founded in general convenience, and will best promote the due administration of justice, without mul- tiplying unnecessary litigation on the one hand, or drawing suitors into needless and oppressive expenses on the other. [* § 539 a. It has been lately held that in a suit for carrying into effect the trusts of a creditor's deed, it is not competent to bring in question the validity of a conveyance of a portion of the estate, on the ground of fraud in the purchase ; a bill joining both these matters being held demurrable for multifariousness.^ But in another case,^ a bill to remove the trustee and set aside a sale made by him was sustained. And one bill to set aside several sales to different persons, by an administrator made by collusion with the purchasers, for his own benefit, will lie.^ The substance of the rules, on the subject of multifariousness, it was said in a late case,* appears to be, that each case must be governed by its own circumstances, and must be left in a great measure to the sound discretion of the court. the questions blended together are such as it is inconvenient, as a general rule, to unite in one suit, but which the court can nevertheless deal with when so united. Here the questions blended together are such as the court cannot so deal with." In the Trustees of Watertown v. Cowen, 4 Paige, R. 510, it was held by the court, that where each of the plaintiffs had a distinct right and title, but the injury was the same, or common to both, it being a nuisance to both, they might well join in a bill to restrain the erection of the nuisance, although each of them might file a separate bill for the same purpose. The language of the court w£i3 : " If each of the complainants had a right to file a bill to restrain the erection of this nuisance, as they had a common right, and the injury was the same, or common to both, I see no valid objection to their joining in one suit." When the court here spoke of a common right, it was not intended that the plaintifis had a just right, but only a right of a similar nature, which might be similarly affected by the same nuisance. See also Oliver v. Piatt, 3 Howard, S. C. R. 412. [* ' Jordein v. Bright, 30 L. J. Ch. 336 ; S. C. 2 J. & H. 328. The question of multifariousness in a bill is considerably discussed in the late case of Crow v. Cross, 7 jur. N. S. 1298 ; 5 L. T. N. S. 298. The objection of multifariousness is one which may be waived by the parties ; and where no demurrer is filed on that account, the court will not ordinarily, although they may, raise the objection sua sponte. Chew v. Banlc of Baltimore, 14 Md. 299. And even a fatal defect of this character, if not raised until the hearing, is eff'ectually waived. Bartlett V. Boyd, 34 Vt. R. 256. » Whitman v. Abernathy, 33 Alab. 154. ' Forniquet v. Forstall, 34 Miss. 87 ; Tucker v. Tucker, 29 Mo. 350. * Clegg V. Vamell, 18 Texas, 294. 460 EQUITY PLEADINGS. [CH. X. § 539 i. But where the owner of business at two different places bequeathed these separate places, together with the good will of the business, at each place, to separate persons, and the good will of the business at both places consisted, in part, of the use of certain trade-marks, the exclusive right to which had been infringed ' by the defendant ; and the devisees of the business at the several places brought separate bills against the defendant, praying an in- junction against the use, it was held, on demurrer to the bill, al- leging as the ground of demurrer, that as the defendants had nei- ther of them the exclusive right to the use of the trade-mark they should have joined in the suit, that the suits were well constituted and each could be maintained.^] § 540. It is also to be considered, that the objection of multifa- riousness is not confined to cases, where, upon the actual frame of the bill, there is a necessity for all the persons, named as defend- ants, being made^parties, or for other persons being made parties. Many bills may not be multifarious, as to some persons interested in the whole of the subject-matter, which may be so, as to others interested in a part of it ; as, for example, in the case of distinct purchasers of different parcels of property being made defendants, or omitted to be made defendants.^ But that can furnish no rea- son for the court's proceeding in the absence of any persons, who ought to be present, as to any part of the case ; or, if they are made parties, for depriving them of the benefit of the objection of multi- fariousness. It will only prove that the plaintiffs have adopted a wrong course from the beginning, in the very frame of their bill, by uniting distinct matters against different defendants.^ § 541. (3.) ■ In the next place, as to demurrers for the want or defect of parties, and for misjoinder of parties. After the very full discussion of the subject of who are, and who are not, proper and necessary parties to bills, in the preceding pages, but little re- mains to be said in this place.* Whenever the want of proper ' Dent V. Turpin, 30 L. J. Ch. 495.] " Ante, § 284 a. ' Lumsden v. Frazer, Mich. 1836, 15 Law Journ. 81 : S. C. 1 Mylne & Craig, 689. Ante, § 72-236. In addition to the cases already cited on the subject of bills, brought by some stockholders in a company in behalf of all, (Ante, § 108, 109,) we may add the very recent cases of Vigors v. Audley, 9 Sim. R. 72, and 2 Mylne & Craig, 49, where a bill was brought by some of the shareholders of a mining company in behalf c f all, against the directors of the company, to prevent §539 6-541.] DKMUREERS TO RELIEF. 461 parties appears on the face of the bill, it constitutes a good cause of demurrer.i If the parties, not brought before the court, are necessary and proper to the decree to be made under the bill, the exception may also be insisted upon in the answer, or at the hear- ing.2 When the objection is taken by demurrer, if sustained, the defendant will be entitled to his costs ; but when it is taken at the hearing only, the defendant is usually not entitled to his costs.^ But, in such cases, the coiirt will always give leave to make the new parties, either by an amendment, or by a supplemental bill, when substantial justice between the actual parties to the suit re- quires it.* And even if the bill should be dismissed for this defect, the dismissal will be without prejudice to another bill.^ the money of the shareholders from being appropriated to- the use of any persons, otherwise than for the general benefit of the shareholders. On a demurrer for want of parties, Lord Cottenham overruled the objection, saying, that the prece- dent in Hitehens v. Congreve, 4 Russ. R. 562, was strictly applicable to the case ; and that in the aibsence of precedent, it was the business of the court to adapt its practice to the wants of the public, at the same time doing as little violence as possible to the rules of established practice. ' Cockburn v. Thompson, 16 Ves. 325; Ante, § 72, 336; Post, § 544, 610. The absence of a necessary party to any part of the relief prayed by the bill, though the prayer be in the alternative, is a good objection on demurrer. Penny v: Watts, 2 Phillips, 149. ^ Ante, § 72, 236, 283 ; Mitf. Eq. PI. by Jeremy, 180, 181, 326; Cooper, Eq. PL 185; Robinson v. Smith, 3 Paige, R. 222; Mitchell v. Lenox, 2 Paige, R. 281. ' Cooper, Eq. PI. 185 ; Court v. Jeffrey, 1 Sim. & Stu. 105 ; Mitchell v. Bailey, 3 Madd. R. 61 ; Mitf. Eq. PI. by Jeremy, 40, 181, 325, 326. * Ante, § 237 ; Post, § 884 ; Milligan v. Mitchell, 1 Mylne & Craig, 433 ; Mitf. Eq. PI. by Jeremy, 326. When the plaintiff is allowed leave to amend on ac- count of the want of proper parties, he possesses the incidental right to amend by charging all s'uch matters as constitute the equity of his case, against the new parties. Stephens v. Frost, 2 Younge & Coll. 297; Bateman v. Margerison, 6 Hare, 502. The usual order, which is made at the hearing, is, that the cause shall stand over, and the plaintiffs shall be at liberty to amend their original bill, for the purpose of adding parties, as they might be advised. Sometimes an alter- native clause is added, or to show why they are unable to bring all the proper parties before the court. Milligan v. Mitchell, 1 Mylne & Craig, 433, 434, 442, 443. But, under such circumstances, where the exception really taken was to a want of parties defendants, the plaintiffs will not be at liberty to make new par- ties plaintiffs, and to make new charges and statements applicable thereto. Milli- gan V. Mitchell, 1 Mylne & Craig, 433, 442, 443 ; Miller v. McCan, 7 Paige, R. 451. And see Gibson v. Ingo, 5 Hare, 156. ' Stafford v. City of London, 1 P. Will. 428 ; S. C. 1 Str. 95 ; Jones v. Jones, 3 Atk. 112 ; S. C. 1 Dick. R. 96. It is reported to have been said by Lord Hard- 39* 462 EQUITY PLEADINGS. [CH. X. [* § 541 a. The subject of multifariousness is one of consider- able perplexity, and one where there is no uniform and inflexible rule, it resting very much in the discretion of the court, whether the matters objected to, as being too diverse, to be considered in the same suit, are really so, or not. It seems clear that many mat- ters, which are so far distinct, that separate suits might be main- tained, are often more conveniently and properly, and more under- standingly, heard in the same suit. In regard to alleged frauds in disguising the true state of joint stock companies, whereby shares have been sold below their true value, it was held that where both A and B had participated in such fraudulent suppression of the facts, it was competent to bring a bill against both of them, in re- gard to separate rules to each, in which the other had no pecuniary interest.^ And in bills by the trustee under a creditor's deed, it is competent to join all the creditors.^ § 541 b. A bill is not multifarious because the plaintiffs are several owners of goods, which have been obtained from each by separate fraudulent transactions, by the same person and pledged to another for advances, the plaintiffs offering to pay the advance, and which seeks to rescind the pledge and have the notes sur- rendered.^ Nor is a bill to be regarded as multifarious because it prays for an injunction against using an appraisement of damages as a bar to a suit to recover such damages ; and also seeks for a new appraisal.*] § 542. When the parties, who are omitted, are mere formal par- ties, if the objection is not taken by demurrer, or by plea, the court will be indisposed to hsten to the objection at the hearing ; and if it can properly do so, it will dispose of the cause upon its merits, without requiring such formal parties to be joined. And if the joinder of a formal party would oust the jurisdiction of the wicke, in an anonymous case, 2 Atk. 15, and in Jones v. Jones, 3 Atk. Ill, that a bill in Chancery is never dismissed for want of parties ; but it stands over upon payment of the costs of the day. But, however true this may be as a general rule of practice, it is not universally true ; for if the necessary parties cannot be made, as is sometimes the case, the bill must be dismissed. See Ante, § 81, 8S; Kay 'v. Fenwick, 3 Bro. Ch. R. 25 ; Russell v. Clarke's Ex'rs, 7 Cranch, R. 69, 99. See also Milligan v. Milledge, 3 Cranch, R. 220 ; Ante, § 75, 236. [* • Walsham v. Stainton, 9 Jur. N. S. 1261. = Singleton v. Selwyn, 9 Law. T. N. S. 408. ^ Coleman v. Barnes, 5 Allen, 374. * Wells V. Bridgport Hydraulic Co. 30 Conn. 316.] § 541 a - 544.] demurrers to relief. 463 court, it will proceed to a decree upon the merits of the case be- tween the parties actually before the court, who have the real and substantial interests in the controversy, whenever it can be done without prejudice to the rights of others.^ § 543. A demurrer for want of necessary parties must show who are the proper parties, from the facts stated in the bill, not indeed by name, for that might be impossible ; but in such a manner, as to point out to the plaintiff the objection to his bill, and to enable him to amend by making proper parties.^ § 544. As to the misjoinder of parties. If the misjoinder is of parties as plaintiffs, all the defendants may demur.^ If the mis- joinder is of parties as defendants, those only can demur, who are improperly joined.* But if a person is improperly joined as a de- ' Wormley v. Wormley, 8 Wheat. 451 ; Ante, § 79, note, 221, 229. ' Mitf. Eq. PI. by Jeremy, 180, 181 ; Pyle v. Price, 6 Ves. 780, 781 ; Attorney- General V. Jackson, 11 Ves. 369; Cooper, Eq. PI. 187; Attorney-General v. Poole, 4 Mylne & Craig, R. 17 ; Ante, § 238. The form of a demurrer, for want of necessary parties, as given in Van Heythuysen, Eq. Drafts. 519, is as follows: — " These defendants, by protestation, &c., do demur to the said bill, and for cause of demurrer show, that it appears by the said complainant's own showing in the said bill, that J. S. therein named, is a necessary party to the said bill, inasmuch as it is therein stated, that the said testator did, in his lifetime, by certain convey- ances made to the said J. S., in consideration of £ — , convey to him by way of mortgage, certain estates in the said bill mentioned, for the purpose of paying the said testator's said debts and legacies ; but yet the said complainant hath not made the said J. S. a party to the said bill. Wherefore," &c. It has, however, been held, that, upon a demurrer to a bill for want of equity, the objection, that the bill is defective for want of parties, may well be taken. Vernon v. Vernon, in Chan- cery, (England,) February, 1837. So the objection may be taken in the same way, if persons are improperly made plaintiffs. Gething v. Vigurs, November 8, 1836, before the Vice- Chancellor of England. ' Ante, § 232, 236, 237, 279, 283, 509, 541; Cuff w. Platell, 4 Russ. 242; King of Spain v. Machado, 4 Russ. 225 ; Bell v. Cureton, 3 Mylne & Keen, 503, 512. * Whitbeck v. Edgar, 2 Barb. Ch. R. 106. Where a person having a distinct derivative interest under another person, is made a joint plaintiff with him, such, for example, as a purchaser under a settler, where both are plaintiffs, to set aside the settlement, the purchaser can have no relief, upon such a bill, although he might, in a separate suit, have been entitled to relief. Bill v. Cureton, 2 Mylne, & Keen, 503, 512. See Hunter v. Richardson, 6 Madd. R. 89. Where a person has been improperly made a plaintiff, who should upon the circumstances of the case have been made a defendant, the court will sometimes allow an amendment to be made, by striking out the party as plaintiff, and making him a defendant. Aylwin v. Bray, 2 Younge & Jerv. 518, note. And if the cause has proceeded 464 EQUITY PLEADINGS. [CH. X. fendant, who is without the jurisdiction, and is therefore a party only by virtue of the usual prayer of process, such misjoinder will not affect the cause ; for until he has appeared and acted, no de- cree can be had against him.^ And in cases of misjoinder of plain- tiffs, the objection ought to be taken by demurrer ; for if not so taken, and the court proceeds to a hearing on the merits, it will be disregarded, at least, if it does not materially affect the pro- priety of the decree.^ to a hearing, the court has sometimes gone the length of decreeing against that plaintiff and the defendants, in favor of the other plaintiffs, in the same manner as if he had been a co-defendant instead of being a plaintiff. Morley v. Hawke, cited 2 Younge & Jerv. 520; and Kaffity v. King, [15 Law Journ. 87, 93, Mich. Term, 1836; S. C. 1 Keen, K. 601, 619; Janson v. Solerte, 2 Younge & Coll. 132. ' Pringle v. Crooks, 3 Younge & Coll. 666. A qusere is suggested in this case, ■whether misjoinder of a defendant is in any case a ground for a demurrer. See ante, § 203, 224, 232, 236, 237, 271 a -278 a, 279, 283, 392, 509, 530. ' Trustees of Watertown v. Oowen, 4 Paige, R. 510; Harder v. Harder, 2 Sandf. Ch. R. 17 ; Raffety v. King, 1 Keen, R. 601, 619 ; Wilkinson v. Parry, 4 Russ. R. 272, 274; Aylwin v. Bray, cited 2 Younge & Jerv. 518, note; Mos- ley V. Lord Hawke, cited 2 Younge & Jerv. 520 ; Newhouse v. Miles, 9 Ala. 460 ; EUicott v. EUicott, 2 Md. Ch. Dec. 472 ; Lambert v. Hutchinson, 1 Beavan, R. 277; Ante, § 237, 283. In the case of Raffity v. King, as reported in the Law Journal, (Vol. 6, N. S. 93,) the following observations are given as a part of Lord Langdale's judgment : — "As to the objection of John Raffity being made a plaintiff, I am not satisfied it would, under any circumstances, be considered of such importance as to deprive the other plaintiffs of the relief they are entitled to. There have been cases, in which the court, with a view to special justice, has overcome the difficulty occasioned by a misjoinder of plaintiffs. In the case of Mosley V. Lord Hawke, before Sir William Grant, (cited 2 Younge & Jerv. 420,) a tenant for life of a fund, at whose instigation and for whose benefit a breach of trust had been committed, was joined with the othei*. plaintiffs to the bill. The defendant objected to any relief being granted in that state of the record ; but the objection was overruled, and a decree was made against the de- fendants, and the offending tenant for life, who was one of the plaintiff^ There are other cases, which might be cited on this subject ; but it does not seem to be necessary ; for John Raffity does not appear to have had any interest whatever, and he is a mere formal party. And without determining the effect of the objec- tion, if brought forward earlier, I think it is now too late. If the objection had been stated in the answer, the plaintiffs might have obtained leave to amend their bill, and might have made John Raffity a defendant instead of a plaintiff; for which there is the authority of Aylwin v. Bray ; and in such a case as this, where the objection is reserved to the last moment, and even after the argument on the merits, I think it ought not to prevail." The same case is reported on this point in 1 Keen, R. 619,' to the same effect. § 644, 644 a.] demueeers to discoveey. 465 [* § 644 a. Where a demurrer is allowed with costs in favor of parties iroproperly joined as defendants, leave will be given the plaintiff to amend by striking out their names.^] CHAPTBK XI. DEMUREEES TO DISCOVERT. [* § 545. Grounds of demurrer to bills of discovery. ^ 546. Cannot demur to discovery incidental to relief. § 546 a. Rules of English courts of equity in this respect. § 547. Special grounds of demurrer to discovery. § 548. Plaintiflf may claim relief, sometimes, if not discovery. ^ 549. Causes of demurrer which apply equally to discovery and relief. 4 551. Grounds of claiming discovery alone. § 552. The grounds of jurisdiction must appear to the court. 4 553. The suit must appear to be of a civil nature. § 554. Bill of discovery not allowed in suit before arbitrators. 4 555. Not allowed where court can compel the discovery. § 556. Nor where the object of suit is against sound policy. § 557. As in case of maintenance or to influence elections. § 557 a. Nor where suit is barred by statute of limitations. § 558. Nor in aid of a suit not maintainable. § 559. Should appear the discovery is material. § 560. And that a suit is either pending or contemplated. § 561. Discovery need not extend to all the facts of a case. § 562. Will not be denied because case is doubtful. i 563. Discovery in aid of defence must show how it will be available. § 564. Immateriality of discovery ground of demurrer. § 565. This must appear on face of bill. § 566. Dlnstrations under last head. § 567. Sufficient if materiality fairly supposable. § 568. Materiality as to part of bill only, ground of demurrer to that extent. § 569. Illustrations under this head. § 570. Not maintainable against a mere witness. § 571. Both interest and privity must appear. § 572. Discovery limited to plaintiff's case. 4 573, 574. Illustration of point. § 574 a. Devisee entitled to discovery of deeds ; heir not, unless in tail. § 574 6. Explanation of grounds of these distinctions. § 574 c. Reason why devisee claims both under will and deeds. ) 575. Demurrer on ground of exposure to penalty. 4 576. Further illustrations of this point. § 577. Defendant may claim the protection at any stage. [* 1 Tryon v. Westminster Company, 6 Jur. N. S. 1324.] 466 EQUITY PLEADINGS. [CH. XL § 578. The application of this rule rests in sound discretion. § 578 a. Bills must separate the portions exposing to penalty. § 579. Demurrer extends to all tending to penalty. § 580-582. Illustrations of the point. § 583. Party not bound to disclose inability to take. 4 584. Rule extends to disclosure of acts of bankruptcy, &c. § 585, 586. Further illustration of the rule. § 587. Not material whether discovery sought by bill or cross bill. § 588. Party bound to disclose matters collateral to privilege. § 589. Party may by contract waive privilege, &c. § 590. Not privileged from disclosing liability to stipulated damages. § 591. Illustrations of the general rule. § 592. Not bound to disclose composition of felony. § 593. Makes no difference whether penalty be under civil or ecclesiastical law. § 594. Cases in illustration. 4 595. Party bound to discover all sfcts not indictable. § 596. The grossest frauds not excepted, unless indictable. § 597. Statement of cases of apparent conflict. § 598. Penalty barred party bound to answer. § 599. Professional confidence an excuse for refusing disclosure. § 600. Not important it should relate to pending or expected suit. § 601. Privilege extends only to matters exclusively professional. § 601 a. Contriving fraud not within the rule. § 602. Enumeration of exceptions to the rule. § 602 a. Communications affecting public service privileged. § 603. Bona fide purchaser and others protected from disclosure. § 604. Legal title with equal equity must prevail. § 604 a. Bonajide purchaser without notice always protected. § 605. Defects appearing on face of bill met by demurrer. § 606. Certain of them can only be taken in that mode. 4 607. Exceptions recapitulated. § 608. Effect of overruling plea or demurrer to bill of discovery. § 609. The same rule applies to particular claims of discovery. § 610. Some causes of demurrer to relief not applicable to discovery. § 610 a. Proper parties to bill of discovery in aid of suit at law.] _ § 545. We shall now consider the grounds of demurrer to bills of discovery ; for a plaintiff may in many cases, be entitled to main- tain a bill for discovery merely, although he could not, for reasons before stated,^ maintain a bill for relief, as well as for discovery.^ But it would seem, that, in America, the demurrer would be good only to the relief, and the plaintiff would still be entitled to the discovery.^ > Cooper, Eq. PL 188 ; Mitf. Eq. PI. by Jeremy, 183, 184; Ante, § 312; Kob- erts V. Clayton, 3 Anst. K. 713 ; Hare on Discov. 6, 7, 9. " Cooper, Eq. PI. 186. ' Ante, § 312, note, 441; Dell v. Hale, 2 Younge & Coll. New R. 1, 3,4; Brownell v. Curtis, 10 Paige, R. 210. § 545 - 547.] DEMURRERS TO DISCOVERT. 467 § 546. "Where the bill is for discovery and relief, the defendant mav, if he pleases, demur to the relief, and answer to the discov- ery. But he cannot demur to the discovery alone, and not to the rehef, when the discovery is merely accidental to the relief ; for that would be to demur, not to the thing required, but to the means by which it was to be obtained.^ Therefore, where a defendant had demurred to the discovery sought by a bill, for want of title in the plaintiff to require the discovery ; but had omitted to demur to the relief prayed, to which that discovery was merely incidental, the demurrer was held bad in point of form, and was overruled ; for the demurrer, being to the discovery only, admitted the title to relief, and consequently admitted the title to the discovery, which was only incidental to the relief.^ It would give rise to a very dif- ferent question, as to the validity of a demurrer to discovery, as well as to relief, if it clearly appeared, that the discovery asked was of other distinct matters, not incidental to the relief.^ [* § 546 a. But where, by the English statute,* the defendant is not obliged to answer the bill unless interrogatories are filed with- in the time prescribed by the rules of the court, or such enlarged time as the court may give, it was held, nevertheless, that the party might demur to part of the bill, without thereby subjecting himself to the necessity of answering the other portions of the bill, the interrogatories not having been filed within the require- ments of the statute.^] § 547. Even in a bill, properly before the court, for discovery and relief, there may be objections made by way of demurrer to particular discoveries asked, although not applicable to all the dis- covery. These special objections are reducible to four' principal heads ; (1.) That the answer may subject the defendant to penal consequences ; (2.) That it is immaterial to the purposes of the suit; (3.) That it would involve a breach of some confidence, which it is the policy of the law to preserve inviolate ; (4.) That ' Ante, 312, note, § 441. ' Mitf, Eq. Pi. by Jeremy, 184, 185; Morgan v. Harris, 2 Bro. Ch. K. 12; Waring V. Mackreth, Forrest, Ex. K. 129 ; Hare on Discov. 4 ; Ante, § 312 and note. ' Ante, § 312 and note; Hare on Discov. 7, 8; Mitf. Eq. PI. by Jeremy, 184 and notes (m) and (n). In such a case, would not the bill be open to objection on account of multifariousness ? [* * 15 & 16 Vic. ch. 86. ' Burton v. Kobertson, 6 Jur. N. S. 1014.] 468 EQUITY PLEADINGS. [CH. XI. the matter, which is sought to be discovered, appertains to the title of the defendant, and not to that of the plaintiff,^ But as these objections may also apply to the whole structure of the bill, and to the discovery sought by it, they need not be further examined in this place, as they will be fuUy considered hereafter .^ § 548. It is proper, however, to state, -that, in many cases the plaintiff may be entitled to relief, although he may not be entitled 40 the discovery sought. And, in such a case, a demurrer to the whole bill would be obviously incorrect ; for the plaintiff might be able to maintain his bill, independently of the discovery.^ The converse of the rule, therefore, above stated, that a demurrer to the relief is good as to the discovery, if it is good as to the relief, does not hold ; since there may be relief without discovery. § 549. Many of the objections, already stated to bills for relief, are equally applicable to bills of discovery. Thus, for example, the following objections, already stated, equally hold to bills of discovery as they do to bills of relief. (1.) That the subject is not cognizable in any municipal court of-justice ; (2.) That the plain- tiff is not entitled to the discovery by reason of some personal dis- ability ; (3.) That the plaintiff has no title to the character, in which he sues ; (4.) That the value of the suit is beneath the dig- nity of the court ; (5.) That the plaintiff has no interest in the subject-matter, or no proper title to institute a suit concerning it ; (6.) That, although the plaintiff has an interest in the subject-mat- ter of the suit, and has a title to institute it ; yet he has no right to call upon the defendant to answer his demand ; (7.) That the defendant has no interest in the subject-matter of the suit, which entitles the plaintiff to institute it against him ; (8.) That the ob- ject of the bill is to enforce a penalty or forfeiture.* § 550. Upon many of these grounds of demurrer, it seems un- necessary to add to the expositions already given. Upon a few of them, some further observations and illustrations will incidentally occur in treating of other appropriate heads of demurrer to bills of discovery, technically so called. Let us then proceed to the con- sideration of these heads of demurrer. ' Hare on Discov. 4. " Post, § 572, 575-605. ' Mitf. Eq. PI. by Jeremy, 185 ; Attorney-General v. Brown, 1 Swanst. 294. ♦ Cooper, Eq. PI. 187, 190; Mitf. Eq. PI. by Jeremy, 185; 2 Story on Eq. Jurisp. § 1489. §•547-553.} DEMURRERS TO DISCOVERY. 469 § 551. (1.) The first is, that the case made by the bill, is not such, in which a court of equity assumes a jurisdiction.^ "Where a bill prays relief, the discovery, if material to the relief, being in- cidental to it, a plaintiff, showing a title to relief, also shows a case, in which a court of equity will compel a discovery, unless some circumstance in the situation of the defendant renders it improper .^ But where the bill is for discovery merely, it is necessary for the plaintiff to show by his bill a case, in which a court of equity will assume jurisdiction for the mere purpose of compelling a discov- ery.^ This jurisdiction is exercised to assist the administration of justice in the prosecution or defence of some other suit, either in the same court, or in some other court.* § 552. Where the object of a bill is to obtain a discovery to aid in the prosecution or defence of a suit in the same court, as the court has already jurisdiction of the subject-matter, it is sufficient to state the pendency of such suit, to give the court jurisdiction upon the bill of discovery.^ But, where a bill is brought to aid, by a discovery, the prosecution or defence of a suit instituted in another court, it must plainly be made to appear upon the face of the bill, that the suit is of such a nature, and for such objects, and under such circumstances, as will fully justify the interposition of the court in compelling the discovery sought.^ § 553. In the first place, then, it must appear by the bill, that the suit, for which this extraordinary aid by discovery is sought, is of a purely civil nature ; for if it be a proceeding not purely of a civil nature, or if it be a criminal proceeding, a court of equity wiU not exercise its jurisdiction to compel a discovery ; and, if it is sought by the bill, a demurrer will lie.'' Thus, for example, a • Mitf. Eq. PL by Jeremy, 185. ' Ante, § 547. ' Mitf. Eq. PL by Jeremy, 185, 186. ' Ibid. 186. ' Ibid. ' It is not necessary to maintain a bill of discovery, that the suit, in aid of which it is brought, should be a civil suit, pending in a domestic court. On the contrary, courts of equity will sustain a bill of discovery in aid of a civil suit pending in a foreign tribunal, if the suit be in a country ivi'th which there is peace, and the suit do not interfere with the known public policy of the country where the bill is brought. Cooper, Eq. PL 191 ; Mitf. Eq. PI. by Jeremy, 186, note (q) ; 2 Story on Eq. Jurisp. § 1495. But this has been recently denied by the vice-chancellor in Bent v. Young, 9 Sim. E. 180 ; Ante, § 53, note, § 311. ' Mitf Eq. PL by Jeremy, 186 ; Ante, § 322 ; Wigram on Discov. 81, 2d edit. ; Ocean Ins. Co. v. Fields, 2 Story, R. 59. BQ. PL. 40 470 EQUITY PLEADIK6S. [CH. XI. court of equity will not entertain a bill of discovery in aid of a mandamus, or of a quo warranto, or of a prohibition, or of an in- formation, or of an indictment, or of any other proceeding of a criminal nature^ And no discovery will be enforced, not only of 1 Ante, § 322 ; Montague v. Dudman, 2 Ves. 398 ; Wigram on Discov. 4, 5, 2d edit. ; Attorney-General v. Reynolds, 1 Eq. Abridg. 131 ; Bishop of London V. Fytche, 1 Bro. Ch. R. 96 ; Mitf. Eq. PI. by Jeremy, 186, 197 ; Cooper, Eq. PI. 191, 197; Leggett u. Postley, 2 Paige, R. 601 ; 2 Story on Eq. Jurisp. § 1494. The ground, as to writs of mandamus and writs of prohibition, seems to be, that they are not strictly remedial writs, but mandatory, the power to grant which is vested in the Superior Courts of Law, to be exercised for great public purposes. Montague v. Dudman, 2 Ves. 396. Perhaps, too, it may be suggested, the nature of the process in such cases, as well as in that of a quo warranto, presupposes in each case some usurpation or omission of duty, in the nature of a charge of a dereliction of a public duty. See Attorney-General v. Reynolds, 1 Eq. Abridg. 131. In regard to actions at law for torts, in general there seems no reason to doubt, that a bill of discovery lies in aid of such an action, as well as in aid of actions on contract. But a very different question arises, where the tort is of such a nature as would involve the party against whom the discovery is sought, in a discovery of matters indictable or criminating himself. In Thorpe v. Mac- aulay, 5 Madd. R. 218, it was held by the vice-chancellor, in the case of a bill for discovery, and for a commission to take the testimony of witnesses in aid of a defence to an action at law for a libel, and charging matters criminal and indict- able against the plaintiff in the action at law, that the demurrer was good to the discovery, but bad as to the commission ; and so it was overruled. The same point seems to have been held in ShackeU v. Macaulay, 2 Sim. & Stu. 79 ; S. C. 2 Russ. R. 550, note. The case went to the House of .Lords, where the decree ordering a commission was affirmed. The vice-chancellor, in Wilmot v. Maccabe, 4 Sim. R. 263, seems to have thought, that the decision before Lord Eldon, and in the House of Lords, justified the doctrine, that the" party was bound to make the discovery also. His language is, that it was decided, " that where a person brings an action for a libel, it follows, as commensurate with the right to bring the action, that the party who complains is bound to give the discovery, which the defendant at law claims to have by his bill." On examining the doctrine held in the case in the House of Lords, I cannot find, that Lord Eldon has anywhere positively affirmed, that the plaintiff in the bill was absolutely entitled to a dis- covery of matters which would criminate the defendant. It is true, that there ^are some intimations in his language looking that way. But the point was not before the House : and the sole question was, whether a commission ought to go. See 1 Bligh, (N. S.) R. 96, 133, 134. In Leggett v. Postley, 2 Paige, R. 601, it was expressly held, that the defendant in' an action at law could not compel a discovery in equity from the plaintiff at law in aid of his defence, which would criminate him or subject him to an indictment. Mr. Hare, (on Discov. 116,) asserts that it is no objection to a bill of discovery, that the matter in question might have been the subject of an indictment or information. But he relies for this proposition solely on the cases in 4 Sim. R. 264 ; and 1 Bligh (N. S.) R. 96. § 553 - 556.] DEMURRERS TO DISCOVERY. 471 the broad, leading facts, but of any fact, the answer to which may form a step in aid of a criminal prosecution, or in the defence of it.i § 554. In the next place, courts of equity will not interfere in relation even to civil rights, and aid them by a bill of discovery, unless those rights are in controversy, or are to be Htigated in the ordinary tribunals of justice. A bill of discovery will not, there- fore, be sustained in aid of a claim or of a defence in a controversy before arbitrators ; for they are the 'judges of the parties' own choice, and they must submit to the inconveniences of such an imperfect forum.^ § 555. In the next place, in cases of a purely civil nature, courts of equity will not sustain a bill for a discovery, in aid of a suit pend- ing in another court of ordinary jurisdiction, if that court itself can compel the discovery required ; for, in such a case, the remedy elsewhere is complete, and the interference of a court of equity is unnecessary and vexatious. Thus, where a bill, among other things, was filed for a discovery of the value of the respective real and personal estates of the inhabitants of a parish, in which certain church rates had been assessed, and how the money collected by means of such rates had been disposed of, a demurrer was allowed ; because the ecclesiastical court, in which the suit was depending, and to which the ordinary jurisdiction belonged, was capable of compelling the discovery.^ § 556. In the next place, courts of equity will not lend their aid in favor of a party, seeking a discovery to support an action, which is against public policy.* Thus, for example, where an action was brought to recover the expenses of entertainments given by the plaintifiF, under an agreement with the defendant to introduce him to a woman of fortune, with a view to marriage ; and a dis- But see Paxton v. Douglas, 16 Ves. 239 ; S. C. 19 Ves. 225 ; Parkhurst v. Low- ten, 1 Meriv. K. 391; Southall p. , Younge, R. 308, 316, 317; Glyrni v. Houston, 1 Keen, E,. 329. ' Cooper, Eq. PI. 191 ; Claridge v. Hoare, 14 Ves. 65; Post, § 575, 597. ' 2 Story on Eq. Jurisp. § 1495 ; Cooper, Eq. PI. 192; Hare on Discov. 119, 120 ; Wellington v. Mcintosh, 2 Atk. 569 ; Street v. Rigby, 6 Ves. 821 ; London- derry, &c. Railway Company v. Lishman, 12 Beavan, 423. ' Mitf. Eq. PI. by Jeremy, 186, 187 ; Dunn v. Coates, 1 Atk. 288, 289 ; Cooper, Eq. PI. 191, 192 ; 2 Story on Eq. Jurisp. § 1495 ; Gelston v. Hoyt, 1 John. Ch. E. 647, 548. * 2 Story on Eq. Jurisp. § 1496. 472 EQUITY PLPADIHGS. [CH. XI. covery was sought in aid of that action, a demurrer to the bjU was allowed.^ § 557. So, if an action were brought for expenses, which would amount to maintenance at the common law, a bill for discovery in aid of it would be demurrable. ^ So, if an action were brought to recover expenses of an election of a member of parliament, a bill of discovery in aid of that action would be disallowed, upon the ground of being against public policy.^ § 557 ft. So, if a bill for discovery in aid of an action at law, disclose the fact that such action is barred by the statute of limita-i tion, a demurrer will be allowed.* § 558. (2.) Secondly ; Another objection, which may be taken by demurrer to a bill of discovery, is, that it is brought in aid of an action in another court, which action cannot be sustained.^ Hence, if the plaintiff, in an action, filing his bill for discovery, shows no interest in the subject-matter of the action, or the action itself cannot be sustained in point of law, (and upon these points a court of equity has a right to pass judgment,} no discovery wiU be allowed ; for a court of equity will not allow its process to be used for purposes not conducive to the administration of substantial rights in litigation in other courts. And the objection may be taken by way of demurrer to the bill seeking the discovery.^ Therefore, where a plaintiff filed a bill for discovery merely, to sup- port an action, which, he alleged by his bill, he intended to com- mence in a court of common law ; although by his allegations he brought his case within the jurisdiction of a court of equity to compel a discovery ; yet the court being of opinion, that the case stated by the bill was not such as could support an action, a de- murrer was alio wed. '^ For, unless the plaintiff had a title to re- ' King V. Burr, 3 Meriv. K. 693. See Brooks v. Bradley, 2 Cas. Ch. 95. ' Wallis V. Duke of Portland, 3 Ves. 493, 503; Cooper, Eq. PI. 194, 195. ' Walsh V. Lord Clive, cited 3 Ves. 498 ; Cooper, Eq. PL 195. * Smith V. Fox, 6 Hare, 386. = Cooper, Eq. PI. 194 ; Mitf. Eq. PI. by Jeremy, 187 ; Ante, § 318, 319. » Cooper, Eq. PI. 194 ; Hare on Discov. 43 -46 ; Mitf. Eq, PJ. by Jeremy, 194. Lord Kensington v. Mansell, 13 Ves. 240 ; Rondeau v. Wyatt, 3 Bro. Ch. R. 154 ; Macaulay v. Shackell, 1 Bligh, (N. S.) R. 120. ' Debigge v. Lord Howe, cited 3 Bro. Ch. R. 155 ; Mitf. Eq. PI- by Jeremy, 187, 188 ; Cooper, Eq. PI. 194-196 ; Ante, 319. The case of Debigge v. Urd Howe, is very shortly cited in 8 Bro. Ch. R. 155, as follows : — " In Debigge v. Lord Howe, 1782, Col. Debigge filed a bill against Lord Howe, stating, that he §566-561] DEMURRERS TO DISCOVERY. 473 cover in an action at law, supposing his case to be true, lie had no title to the assistance of a court of equity, to obtain from the con- fession of the defendant evidence of the truth of the case.^ § 659. And not only is it necessary for the plaintiff seeking a discovery in aid of an action at law, to show, upon the face of the bill, that the action is maintainable ; but also, that, upon the state of the pleadings, the discovery would be material to sustain his side of the issues raised thereby.^ The nature of the action should appear with reasonable certainty, so as to enable the court to see the pertinency of the discovery ; although, generally, the court will presume the suit at law to be regularly commenced, where a right to sue appears.^ § 660. The bill should also state that the suit is either com- menced, or contemplated to be commenced, in regard to the sub- ject-matter of the bill of discovery ; otherwise it is demurrable. [And if a bill seeks a discovery, and also relief which the court has no power to grant, the defendant may demur to the whole bill, if it do not aver that a suit at law is pending, or is about to be brought, in which a discovery may be material.*] For it is a gen- eral rule, that every bill of discovery must allege that the discovery is sought in aid of some judicial proceeding, commenced, or^at least contemplated ; and courts of equity do not lend their aid to gratify mere curiosity, or to ascertain facts not connected with the purposes of the administration, of justice.^ § 561. Hence the importance, in a bill for discovery, of the had done services for government, and that Lord Howe had conti)jicted to pay him, and praying a discovery in order to found an action at law. Lord Howe filed a demurrer, and the demurrer was allowed ; because the court was of opin- ion, that the case would not support the action." Where the want of a good cause of action is apparent on the face of the bill, it must properly be taken by demurrer, and not by plea ; and if taken by plea, the plea will be overruled. Tweedale v. Tweedale, cited Mitf. Eq. PI. by Jeremy, 233, 234 ; Hare on Discov. 43, 44. ' Mayor of London v. Levy, 8 Ves. 398; Mitf. Eq. PI. by Jeremy, 187; Cooper, Eq. PI. W4 ; Hare on Discov. 43 ; Ante, § 318, 319 ; Lousada v. Temp- lar, 2 Russ. K. 564 ; Ante, § 260, 261, 319. ' Macaulay v. Shackell, 1 Bligh, (N. S.) E. 96, 120. ^ Cowan V. Phillips, 3 Anst. 843. ' Mitchell V. Green, 10 Mete. 101. ' Cardale v. Watkins, 5 Madd. R. 19 ; Mitf. Eq. PI. by Jeremy, 186 ; Cooper, Eq. PL 191, 192; 2 Story on Eq. Jurisp. § 1496; Hare on Discov. 110-119; Ante, § 321. 40* 474 EQUITY PLEADINGS. [CH. XI. plaintiff's unfolding so much of his title in the action at law, as is sufficient to establish that it is such as, if made out, will constitute a good foundation of the action.^ Not, that it is necessary, that the discovery asked should be such, as to reach all the points of fact involved in the proof and support of that title ; for, it seems, that a bill of discovery will lie to establish any facts in support of the action, although that discovery may not include all the facts necessary to support it.^ § 562. Where it is merely doubtful, whether the action at law is maintainable or not, and, a fortiori, where it is a measuring cast, and upon the cases at law the action is maintainable, a court of equity will sustain a bill of discovery in aid of the action ; for it will not undertake, in circumstances of this sort, to deny to the plaintiff an opportunity of taking the opinion of the court of law upon his case ; -and it will take the law to be, as it has been held, imtil the courts of law have revised it.^ § 563. In regard to a plaintiff, seeking the aid of a court of equity to assist a defence to an action, brought against him at law, similar considerations will apply. He must clearly show, upon the face of his bill, that the defence would he good to the action at law ; for, otherwise, the aid of a court of equity would be utterly nugatory.* But it does not seem necessary, that he should show that the action itself is sustainable at law, or that he has an inter- est in the action ; for the latter may be presumed in his favor, since he is a defendant ; and the former may be. negatived by him, as one point of defence, and yet it might be unsafe for him to rely on that alOne, as the court of law might rule it against him.^ It will be sufficient, therefore, for him to show that the point is, or may be, material to his defence, although not the sole point of his defence. The party must also state upon the face of his bill, not • Mitf. Eq PI. by Jeremy, 187. " Cooper, Eq. PI. 195, 196; Mitford, Eq. PI. by Jeremy, 9, 306, 307; Bre- reton v. Gamal, 2 Atk. 241 ; Finch v. Finch, 2 Ves. 492 ; Hare on Discov. 110 ; Wigram on Discov. 4, 5, 25; Ante, § 319, note. See Hare qp. Discov. 45, 46, ■which seems contrary ; but the authority there cited does not support the state- ment of Mr. Hare. ' Rondeau v. Wyatt, 3 Bro. Ch. K. 154 ; Mont v. Scott, 3 Price, R. 477 ; Hare on Discov. 43 - 45. * Martin v. Nicholls, 3 Sim. E. 458 ; Hare on Discov. 43, 44 ; Mitf. Eq. PI. by Jeremy, 233, 234. See Ante, § 259. ' Hare on Discov. 44, 45. §561-565.] DEMURRERS TO DISCOVERY. 475 only that the discovery is in aid of a defence good at law, but also what it is ; and that, upon the state of the pleadings, the de- fence is actually set up, and the discovery is material upon the state of the pleadings ; for, otherwise, the discovery would be merely impertinent.^ § 564. The objections, herein before stated, to a bill of discov- ery, brought either by the plaintiff, or by the defendant, to an ac- tion at law, in aid of his action or defence, may be resolved into a more general ground of demurrer, namely, thart the discovery is immaterial. For immateriality, in its broader sense, includes not only cases where the evidence, if discovered, would be irrelevant at the contemplated trial, but also cases where the evidence would be nugatory, if admitted, because there is no proper cause of action. But, generally, immateriality is used in its more restrained sense, as synonymous with irrelevancy .^ § 565. It may be affirmed to be a general doctrine in equity, that, as the object of the court in compelling a discovery is, either to enable itself, or some other court, to decide on matters in dis- pute between the parties, the discovery sought must be material, either to the relief prayed by the bill, or to some other suit actu- ally instituted, or capable of being instituted. If, therefore, the plaintiff does not show by his bill such a case, as renders the dis- , covery which he seeks material to the relief, if he prays relief ; or does not show a title to sue the defendant in some other court ; or that he is actually involved in litigation with the defendant ; or is liable to be so ; and does not also show that the discovery, which he prays, is material to enable him to support or defend a suit, he shows no title to the discovery, and, consequently, a demurrer will hold.^ Therefore, where a bill, filed by a mortgagor against a ' Macaulay v. Shackell, 1 Bligh, (N. S.) R. 96, 120. See Thorp v. Hughes, 3 Mylne & Craig, E. 742. It is obvious that, to maintain a bill for a discovery, it is necessary to show that the discovery, if made, can be used in a suit at law. Therefore, if it should appear that the case has been already decided at law, as, if the application is after a verdict, the bill will ordinarily be demurrable ; for it then comes too late. Duncan v. Lyon, 3 John. Ch. E. 351 ; Hare on Discov. 112-114 ; Whittnlore v. Thornton, 3 Price, 241, 248 ; Mitf Eq. PI. by Jeremy, 131, 132. There must be a special circumstance to justify the interposition of a court of equity afler a verdict at law. Ibid. ; Field v. Beaumont, 1 Swanst. R. 206, 209. » Hare on Discov. 157, 160, 161 ; Mitf. Eq. PI. by Jeremy, 107, 191, 192. " Mitf. Eq. PL by Jeremy, 107, 191, 192, and cases there cited; Cooper, Eq. PI. 198, 199. 476 EQUITY PLEADINGS. [CH. XI. mortgagee to redeem, sought a discovery whether the mortgagee was a trustee, a demurrer to the discovery was allowed. For, as there was no trust declared upon the mortgage, it was not mate- rial to the relief prayed, whether there was any trust reposed in the defendant or not.' So, where a bill was filed by a lord of a manor, praying, amongst other things, a discovery whether a per- son, applying to be admitted as a tenant, was a trustee, the defend- ant demurred, it being wholly immaterial to the plaintiff's case whether the defendant was a trustee or not.^ § 566. And where a bill was brought for a real estate, and sought a discovery of proceedings in the ecclesiastical court upon a grant of administration, the defendant demurred to that discov- ery, the proceedings in the ecclesiastical court being immaterial to the plaintiff's case.^ Again, where a bill to establish an agree- ment for a separate maintenance for the defendant's wife, prayed a discovery of ill treatment of the wife, to make her recede from the agreement, the defendant demurred to the discovery, which could not be material to the case made by the bill.* § 567. But, in general, if it can be supposed, that the discovery may in any way be material to the plaintiff in the support or de- fence of any suit, the defendant will be compelled to make it.^ Thus, where a bishop filed a bill against the patron of a living and a clerk presented by him, to discover whether the clerk had given a bond of resignation, and the patron demurred, because the discovery either was such as might subject him to penalties and forfeitures, or it was immaterial to the plaintiff, the demurrer was overruled ; the cotirt declaring a clear opinion, that the bond was not simoniacal ; but conceiving that the discovery might be material to support a defence to a quare impedit, upon this "ground, that the bond put the clerk under the power of the patron, in de- rogation of the rights of the ordinary.^ 1 Mitf. Eq. PI. by Jeremy, 192. "■ Mitf. Eq. PI. by Jeremy, 192, 193 ; Hare on Discov. 161. ' Ibid. * Ibid. " Mitf. Eq. PI. by Jeremy, 193; Peek v. Ashley, 12 Mete. 481. " Mitf. Eq. PI. by Jeremy, 193 and note. But probably such a demurrer would now be sustained, as such bonds have been held to be simoniacal. Cooper, Eq. PL 194, 200 ; S. P. Parkhurst v. Lowten, 1 Meriv. 391 ; SouthaU v. , 1 Younge, R. 308, 316. In Wright v. Plumptre, 3 Madd. E. 486, there was a demurrer for immateriality in the form following : " And for causes of demurrer," it showed, " that the said complainants have not, by their said bill, made such a §565-669.] DEMUERERS TO DISCOVERY. 477 § 568. It may be added, that this objection of immateriality may be to the whole bill, or to a part of the bill, or to a part only of the interrogatories, or to a particular defendant only. The latter case may often occur, where a defendant is a mere formal party, and where many of the interrogatories and statements in a bill of discovery may be wholly irrelevant as to him. In such a case, he may demur to the immaterial statements and interroga- tories as to himself.^ § 569. (3.) Thirdly. Another objection which may be taken by demurrer to a bill of discovery, is, that the bill is brought by or against persons, who are not parties to the action at law.^ Therefore, where a bill of discovery was brought by the defend- ants in an action at law, founded on their acceptance of a bill drawn by one of their customers, for his own accommodation on them, and the customer was joined with them as a plaintiff in the bill of discovery, a demurrer for that cause was allowed ; for the only parties to the action at law were the holder on one side, and the acceptors on the other side ; and the holder was a mere stranger to the drawer of the bill, and sought no remedy against him, and had nothing to do with the private transactions or in- terests between the acceptors and their customer. The case, there- fore, was a clear misjoinder of a party as plaintiff, who had no interest in the suit.^ The same principle will apply to a like bill of discovery, where a person is made a defendant to the bill, who is not a party to the action at law ; for a discovery by such person cannot be truly said, in ordinary cases, to be material for the pur- case as entitles them to any discovery touching the matters contained in the said bill, or of any such matters, or to the production thereof sought to be obtained ; and that such discovery and production are wholly immaterial to the said com- plainants, and can be of no avail for the purposes for which the same are sought in and by the said bill ; wherefore," &c. ' Hare on Discov. 159, 160, 161 ; Agar v. Regent's Canal Company, Cooper, R. 212, 215. The defendant may decline also in his answer to answer particular interrogatories ; and if, as to him, they are immaterial, an exception for insuffi- ciency in the answer will be overruled. Agar v. Regent's Canal Company, Cooper, R. 212, 215 ; Richardson v. Hulbert, 1 Anst. 65; Rybert v. Barrell, 2 Eden, R. 133, 134. " Irving V. Thompson, 9 Sim. R. 17; Kerr v. Rew, 10 Sim. R. 370; Glyn v. Soares, 3 Mylne & Keen, 459, 468, 469 ; Queen of Portugal v. Glyn, 1 West, H. of L. R. 258, 276. ' Glyn V. Soares, 3 Mylne & Keen, 450, 469 - 472 ; Ante, § 509 ; Post, § 610 a; Queen of Portugal v. Glyn, 1 West. H. of L. R. 258, 276. 478 EQUITY PLEADINGS. [CH. XI.. pose of the defence at law.^ A discovery by him can be naaterial only in the event of the suit being so constituted, as to raise a question as to the equities between the parties.^ § 570. (4.) Fourthly. Another objection, which may be taken by demurrer to a bill of discovery, is, that the defendant has no interest in the subject-matter of the controversy, and is a mere witness. Under such circumstances, as we have already seen,^ he is not generally compellable to answer to a bill of discovery, for such a bill can only be to gain evidence ; and the answer of such a defendant cannot be read against any other person, and not even against another defendant to the same bill.* There are some exceptions to this general rule, which have been already stated, and need not here be repeated.^ If, however, the bill should state, that the defendant has, or claims an interest, a demurrer will not lie ; but the objection must be taken in another form, by a plea, or by a disclaimer.^ And here again, it may be remarked, that if the bill allege an interest in the defendant, that interest must be set forth with reasonable certainty ; otherwise, the bill of dis- covery will be demurrable for that cause alone.'' § 571. (5.) Fifthly. Although both the plaintiff and the defend- ^ Glyn V. Soares, 3 Mylne & Keen, 450, 468, 469. Post v. Boardman, 10 Paige, R. 580. In Irving v. Thompson, 9 Sim. K. 17, the same doctrine was held. And it was affirmed by Lord Cottenham in Kerr v. Rew, 10 Sim. E. 370, and by the House of Lords in the Queen of Portugal v. Glyn, 1 West. H. of L. K. 258, 276 ; S. C. 7 Clarke & Fin. R. 466. In Glyn v. Soares, 1 Younge & Coll. 645, Lord Abinger ruled the contrary, and held that a party in interest in the suit, though not a party to the suit at law, might be made a party to a bill of discovery, although he might be used as a witness. Thus, for example, in case of an action at law brought in the name of the agent, who procured a policy in his own name for his principal, he held, that the principal might be made a party to a bill of discovery in aid of the defence by the underwriter, although he was not a party to the suit, and might be a witness for the underwriter. But this decision was overruled by the House of Lords as above stated. See also Ante, § 226 a. ^ Glyn V. Soares, 3 Mylne & Keen, 450, 468, 469, and cases before cited. ' Ante, § 231, 232, 262, 325 ; Hare on Discov. 63 - 86. * Mitf. Eq. PI. by Jeremy, 186 ; Cooper, Eq. PI. 200 ; Hare on Discov. 68, 70-72; Ante, § 231, 232. ' Ante, § 235, 323, 519 ; Hare on Discov. 83 - 88 ; Cooper, Eq. PI. 201, 202. " Mitf. Eq. PI. by Jeremy, 188 ; Cooper, Eq. PI. 200, 201 ; Fenton v. Hughes, 7 Ves. 291. ' Cooper, Eq. PI. 202 ; The Mayor of London v. Levy, 8 Ves. 398, 405 ; Ante, § 248. §569-572.]. DEMURREES TO DISCOVEEY. 479 ant may have an interest in the subject to which the discovery re- quired is supposed to relate ; yet, as we have seen,i there may not be that privity of title between them, which will give to the plain- tiff a right of discovery against the defendant. In such a case a demurrer will lie.^ Thus, where a bill was filed by a person claim- ing to be the lord of a manor, against another person, also claim- ing to be the lord of the same manor, and praying, among other things, a discovery, in what manner he derived title to the manor ; a demurrer, because the plaintiff had shown no right to the dis- covery, was allowed.^ For, in general, as we shall presently see more fully, where the title of the defendant is not in privity, but is inconsistent with the title made by the plaintiff, the defendant is not bound to discover the evidence of the title, under which he claims.* § 572. (6.) Sixthly. And this leads us to the more general rule in equity, that a plaintiff is only entitled to a discovery of what appertains to, or is necessary for his own title ; and he has no right to pry into the title of his adversary .^ Hence, upon every bill of discovery, the defendant has a right to resist, by de- murrer, any inquiries, which call upon him to disclose the nature and character of his own title to the subject-matter of the contro- versy. The doctrine has been well summed up in two proposi- tions by a learned author. (1.) It is the right, as a general rule, of a plaintiff in equity, to exact from the defendant a discovery upon oath as to all matters of fact, which, being well pleaded in the bill, are material to the proof of the plaintiff's case about to come on for trial, and which the defendant does not, by his form of pleading, admit. (2.) The right of a plaintiff in equity to the benefit of the defendant's oath, is limited to a discovery of such ' Ante, § 262, 324. ' Mitf. Eq. PI. by Jeremy, 189. ' Adderley v. Sparrow, cited Mitf. Eq. PI. by Jeremy, 189, 190 ; Cooper, Eq. PI. 197. * Mitf. Eq. PI. by Jeremy, 190, 191 ; Ivy v. Kekewich, 2 Ves. jr. 679. ' Cooper, Eq. PI. 197; Mitf. Eq. PI. by Jeremy, 190, 191; Id. 9, 52, 53; Hare on Discov. ch. 4, p. 183 - 194 ; Lady Shaftsbury v. Arrowsmith, 4 Ves. 71 ; Wigram on Points of Discov. p. 13 - 21, § 18 - 27, 1st edit. ; Id. p. 23 - 34, § 34- 46 ; Id. p. 90 - 127, § 143 - 180 ; Wigram on Points of Discov. 2d edit. p. 46 - 260, § 82-341 ; Id. p. 246 - 261, § 342-424 ; Adams v. Fisher, 3 Mylne and Craig, R. 526, 544, 546 ; Post, § 859. [In Massachusetts, the English rule on this sub- ject is held not applicable. Adams v. Porter, 1 Cush. 170.] 480 EQUITY PLEADINGS. [CH. XI. material facts as relate to the plaintiff's case ; and does not ex- tend to the discovery of the manner in which the defendant's case is to be exclusively established, or to evidence, which relates ex- clusively to his (the defendant's) case.^ These propositions seem equally true, whether the bill be for discovery only, or for discov- ery and relief.^ ' Wigram on Diseov. 21, 22, 111, 113, 147, 149, 1st edit; Id. 2d edit. London, 1840, p. 15, § 26, 27 ; Id. p. 46, 261. The language of these propositions is not exactly the same in both editions. I have here followed that of the second edi- tion. See Haskell v. Haskell, 3 Cush. 540. 1 Wigram on Diseov. p. 5, 6, § 11, 2d edit. 1840; Id. p. 5, 6, 1st edit. Mr. Wigram's learned work, entitled " Points on the Law of Discovery," is principally employed in discussing and elucidating these propositions. It has already reached a second edition, which contains a thorough revision of the text, and a very full exposition of the recent authorities. There are few professional works which will so well reward the profound examination of students; It abounds in acute obser- vations, and is equally remarkable for its learning and ability. The leading ob- ject of his treatise is to assail the decision of the court in Hardman v. EUames, 5 Sim. K. 640 ; S. C. 2 Mylne & Keen, 732, where it was held, that if a defendant in his answer, states the purport and effect of a document, which is evidence only of his (the defendant's) case, and also, in his answer, refers to such a document as in his possession, the plaintiff has a right, on motion, to have it produced for his inspection, although it does not relate to his (the plaintiff's) own title. The learned author supposes this decision to be at variance with the rule in equity, that a plaintiff is not entitled to a discovery of the defendant's title, or the proofs of it. Mr. Wigram has fully commented on all the cases. See Sampson v. Sweetenham, 5 Madd. R. 16 ; Crompton v. Earl Grey, 1 Younge & Jerv. 154 ; Wilson V. Forster, 1 Younee, R. 281, 282 ; De Sparks v. Montriou, 1 Younge & Coll. 103 ; Hardman v. EUames, 2 Mylne & Keen, 732. In the recent case of Adams v. Fisher, 3 Mylne & Craig, 526, 548, 549, Lord Cottenham affirmed the doctrine held in Hardman v. EUames. On that occasion his lordship said : " As to Hardman v. EUames, it is not very pertinent to the present case. It was cer- tainly no new decision, and I was very much surprised to hear any one treat it as such ; and when I came to look into the doctrines laid down in the books, I felt no doubt upon the subject. Where a party has thought proper to put his defence upon a particular document, he himself having introduced it and put it forward, he cannot be permitted to make any representation of it, however un- founded, which he pleases ; but the plaintiff is entitled to see, whether the de- fendant has rightly stated it. It is because the defendant chooses to make it part of his answer, that the plaintiff is entitled to see it ; not because the plaintiff has an interest in it. The principle is, that a defendant shall not avail himself of that mode of concealing his defence. But whether that decision be right or wrong, it is quite distinct from the present case. I apprehend it is a mistake to say, that the documents scheduled are part of the answer; the schedule itself is part of the answer. All that the plaintiff asks is, that the defendant may set forth a schedule of the documents. Can you except, because he has set out the documents in the §572-674.] DEMURRERS TO DISCOVERY. 481 § 573. Upon this ground, where a bill was filed by an heir ex parte maternd against a general devisee and executor, who had completed, by a conveyance to himself, a purchase of some real estate, contracted for by the testator after the date of liis will, al- leging, that there was no heir ex parte maternd, but that the de- visee set up a title under a release from his father, as heir ex parte maternd of the testator ; and praying a conveyance to the plaintiff; and seeking a discovery in what manner the father claimed to be heir ex parte maternd, and the particulars of the pedigree, under which he claimed ; a demurrer to the discovery was allowed.^ § 574. So, where a bill was filed by legatees, whose legacies were charged on real estate, for a discovery and production of a deed, by which, it was alleged, the real estates were limited to uses, under which the testator was a tenant in tail only ; but from which, as the plaintiff insisted, it would, if produced, appear, that a small portion only of the estate was so settled, and that of the residue the testator was seized in fee ; a demurrer, on the ground that the deed in question related to the defendant's title, and that the plaintiff had no interest in it, was allowed.^ schedule instead of in the bill ? You did not ask that they should be set out in the bill. If that had been asked, the defendant must have defended himself in the regular way, and shown that he was not obliged to comply with your demand. But if the defendant sets them out in the schedule to his answer, the question is, upon the whole record, whether the plaintifiF has such an interest in them as en- titles him to call for their production?" In the same case, (p. 544-547,) the Lord Chancellor, in another passage, fuUy admitted the general doctrine con- tained in Mr. Wigram's two propositions. Mr. Wigram, in the second edition of his work, has commented at large on all the bearings of this case. His observa- tions are too long to be inserted here ; and any abridgment of them would have a tendency to impair the force, and obscure the clearness of his reasoning. The learned reader is therefore referred to them in the original work. Wigram on Dicov. p. 91-110, § 154-173, 2d edit. 1840; Post, § 859, and note. [The case of Adams v. Fisher was somewhat questioned in the late case of Swinborne v. Nelson, 15 Eng. Law & Eq. R. 572.] ' Ivy V. Kekewich, 2 Ves. jr. 679; Mitf. Eq. PL by Jeremy, 191. See Kim- berly v. Sells, 3 John. Ch. K. 472. ' Wilson V. Forster, 1 Younge, K. 280. Mr. Wigram on Discovery, (p. 90- 146, 1st edit. ; Id. 2d edit. 1840, p. 46 - 346,) has collected the authorities bearing on this point. Mr. Chancellor Kent, in Kimberly v. Sells, 3 John. Ch. K. 467, 472, held, that a bona fide purchaser, in possession of an estate, is entitled to a discovery of the grounds on which his title is sought to be impeached by the de- fendants in the bill, who are attempting to sell the land of the hona fide pur- chaser, as the land of another, under whom he derived title. He relied on the BQ. PL. 41 482 EQUITY PLEADINGS. [CH. XL § 574 a. Even an heir at law has not a right to the inspection of deeds in the possession of a devisee, unless he is an heir in tail ; in which latter case, he is entitled to see the deeds creating the estate tail ; but no further.^ On the other hand, a devisee is en- case of Metcalfe. Hervey, 1 Ves. 248, 249, where Lord Hardwicke is reported to have said : " The question tomes to this : whether any person, in possession of an estate, as tenant or otherwise, may not bring a bill to discover the title of a person, bringing an ejectment against him, to have it set out, and see, whether that title be not in some other. I am of opinion he may, to enable him to make a defence in ejectment, even considering him as a wrongdoer against everybody." Lord Kedesdale cites the same case as authority. (Mitf. Eq. PI. by Jeremy, 53, 54.) Mr. Wigram on Discovery, (p. 92, note (a), 1st edit.; see Id. 2d edit. § 346 - 384, p. 264 - 294 ; Id. § 379, p. 291 - 294,) denies the doctrine, and thinks it is restricted by the subsequent cases. See Hare on Discov. 105, 186 - 189, 190, note (m), 194, 203, 211. The case of Bellwood v. Wetherell, 1 Younge & Coll. 211, seems r&ther to shake the authority of the rule laid down by Lord Hardwicke, as a general rule, though it was distinguished from the general class of cases on this head. In Bowman v. Lygon, 1 Anst. 1, Lord Chief Baron Eyre said, that the rule of Lord Hardwicke went very far, and he should not be inclined to fol- low it to that extent, without examining further into the .authority of the decis- ion. Mr. Hare has fully discussed this subject, and has arrived at a conclusion somewhat diflferent from that of Mr. Wigram. A (iistinction seems taken in some of the cases between the right of the plaintiff in equity, when he is the defendant in the suit at law, to insist upon a discovery, whether the defendant in the bill has any title, and the nature of that title, and the right to a discovery of the evi- dence and documents in support of the title, which the defendant asserts. The former he must disclose ; the latter he need not. See Wigram on Discov. 92, note (e), 1st edit; see Id. 2d edit. § 346, p. 264 ; Id. § 379-384, p. 291-294, 1st edit. ; see Id. 2d edit. § 346, p. 264 ; Id. § 379 - 384, p. 291 - 294 ; Hare on Discov. § 4, p. 203-212. Lord Abinger, in Bellwood v. Wetherell, 1 Younge & Coll. 216, seems to have recognized the validity of the distinction. Mr. Wigram thinks, that the defendant is bound to answer, whether he has any title or not ; but not to disclose the nature of the title, which he asserts". Wigram on Discov. 92, note (e), 1st edit. ; Id. 2d edit. p. 264, § 346. The present state of the authorities seems to justify the remark of Lord Abinger in Bellwood v. Weth- erell, 1 Younge & Coll. 215, that upon looking at the cases, some of them appear extremely embarrassed and contradictory, and no steady principle is adopted in them. ' ' Cooper, Eq. PI. ch. 1, § 4, p. 58, 59 ; Id. ch. 3, § 3, p. 197, 198 ; Shaftsbury V. Arrowsmith, 4 Ves. 71. In Shaftsbury v. Arrowsmith, 4 Ves. 71, Lord Eoss- lyn explained the ground of the doctrine in favor of the heir in tail ; that it was removing an impediment preventing the trial of a legal right. He afterwards added : " Permitting a general sweeping survey into all the deeds of the family, would be attended with very great danger and mischief; and where the person claims as heir of the body, it has been very properly stated, that it may show a title in another person, if the entail is not well barred." See 2 Story on Equity Jurisp. § 1491. §574 a -574 c.] demueeers to discoveey. 483 titled against the heir at law to a discovery of deeds relating to the estate devised.^ § 574 b. The reason of this distinction may not at first view be apparent. But the ground, upon which it is asserted, is this. The title of an heir at law is a plain legal title. All the family deeds together would not make his title better or worse. If he cannot set aside the will, he has nothing to do with the deeds. He must make out his title at law, unless there are incumbrances standing in his way, which, indeed, a court of Equity wouldremove, in or- der to enable him to assert his legal title. But in the case of an heir in tail, a will is no answer to him ; although a will established is an answer to an heir at law. An heir in tail has, beyond the general right, such an interest in the deed, creating the entail, that he has a right to the production of it. But an heir at law has no interest in the title-deeds of an estate, unless it has descended to him.2 § 574 c. On the other hand, a devisee, claiming an estate under a will, cannot, without a discovery of the title-deeds, maintain any suit at law. The heir at law might not only defeat his suit, by withholding the means to trace out his legal title ; but he might also defend himself at law, by setting up prior outstanding incum- brances. And thus he might prevent the devisee from having the power of trying the validity of the will at law.^ Whether this dis tinction is well founded, may, perhaps, be thought to admit of some question. That the devisee should in such a case be entitled to a discovery, seems plain enough. That the heir at law is not equal- ly well entitled to a discovery of the deeds, under which the estate is claimed, in order to ascertain the extent to which he is disin- herited, may not appear quite so plain.* > Cooper, Eq. PI. ch. 1, § 4, p. 59 ; Id. ch. 3, § 3, p. 197, 198 ; 2 Fonbl. Eq. B. 6, ch. 3, § 2 ; 2 Story on Equity Jurisp. § 1491. ' Shaftsbury v. Arrowsmith, 4 Ves. 67, 70, 71 ; 2 Fonbl. Eq. B. 6, cb. 3, § 2, and notes, (. -Reynolds, 1 Eq. Abridg. 131; Mitf Eq. PI. by Jeremy, 197 ; Ante, § 553. * Cooper, Eq. PI. 207 ; Honey wood v. Selwin, 3 Atk. 276. § 580 - 583.] DEMURRERS TO DISCOVERT. 491 underwriter on a policy of insurance, suggesting a fraudulent loss of a ship, and that the ship was bound from Ireland to a port in Prance, with wool on board, and praying for a discovery of the goods, which were on board, it was held that, as such ex- portation of wool was within the prohibition of an act of parlia- ment, which would subject the defendant to penalties or forfeit- ures, he was not bound to answer the bill on this point, because the discovery might have a tendency to criminate himself.^ § 582. So, if a bill should be brought to set aside an usurious contract, and in the interrogatory part it should ask the defend- ant what rate of interest he agreed to take, the defendant would have a right to demur to the discovery thus sought ; for he could not set forth what interest he agreed to take, without discovering, at the same time, the very interest he had taken.^ § 583. Upon the same ground, a defendant may, in the same manner, demur to a discovery, which may subject him to any- thing in the nature of a penalty or forfeiture. As, for example, where (before the statute of 18 Geo. III. ch. 60) a discovery was sought, whether the defendant was educated in the Popish re- ligion, by which he might have incurred the incapacities stated in the statute of 11 and 12 Will. III. ch. 4, the bill was held de- murrable.^ For it was said, that, under the rule that a man is not obliged to accuse himself, is implied that he is not bound to discover a disability in himself; and there is no difference be- tween the forfeiture of a thing vested, and a disability to take a thing, inflicted as a penalty.* Nor is the protection limited to the party himself ; but it extends to persons claiming under him, whether they are devisees, or are purchasers ; for they are en- titled to the same privileges, and take the estate under the same circumstances.^ ' Duncalf v. Blake, 1 Atk. 52 ; Mr. Raithby's note to Bird v. Hardwicke, 1 Vern, 110, note (1), 111 ; Mitf. Eq. PI. by Jeremy, 285, 286 ; Attorney-General V. Cresner, Parker, K. 279. ^ Chauncey v. Tabourden, 2 Atk. 393 ; Earl of Suffolk v. Green, 1 Atk. 450. " Mitf. Eq. PI. by Jeremy, 198, 286 ; Jones v. Meredith, Com. R. 661, 670- 672 ; Raithby's note to Bird v. Hardwicke, 1 Vern. 110 ; Wynn v. Doughty, 2 Eq. Abridg. 77. * Smith u. Read, 1 Atk. 526 ; Attorney-General v. Duplessis, Parker, R. 157, 158. ' Smith V. Read, 1 Atk. 526 ; Hamson v. Southcote, 1 Atk; 528, 538, 539 ; S. C. 2 Ves. 389, 395 ; Boteler v. AUington, 3 Atk. 457 ; Parkhurst v. Lowten, 1 Meriv. R. 391. 492 EQUITY PLEADINGS. [CH. XL § 584. Upon a similar ground, it has been held, that a demur- rer lies to a hill against a clergyman, to discover whether, after institution to one, he has not been presented to a second living, whereby, under the statute of 21 Henry VIII. the first benefice would have become void ; for it is in the nature of a forfeiture.^ So, where a bill is brought against a bankrupt, to discover whether he has not committed acts of bankruptcy,- the same ob- jection may be taken by demurrer ; for the proceedings against him, under the bankrupt laws, are in the nature of a penalty ; and he shall not, in such a case, be compelled to say, whether he intended to defraud his creditors.^ But he may be compelled to say whether he has traded or not.^ § 685. For the same reason, where a bill of discovery was brought against a defendant, requiring him to discover whether he was married, or had any issue male, or gave out that he had such, it was held, that the party was not bound to discover whether he was married, or not, or whether he had illegitimate issue, or not ; for that might subject him to ecclesiastical cen- sures.* But he was bound to answer whether he had legitimate issue, or not ; for that would not subject him to any such cen- sures.^ § 686. The same reasoning would seem to apply to the case of a defendant who should be called upon by a bill to discover whether he is an alien, or not, whereby he would be deprived of an estate then vested. And it was accordingly so held by Lord Hardwicke.^ But it has since been held otherwise by the House of Lords, upon the ground, that the legal disability or incapacity of an alien is not a penalty or a forfeiture ; for a penalty or for- feiture is inflicted for some act or neglect ; but the disability of an alien to hold lands arises from the policy of the law, without any such act or neglect.^ ^ Boteler v. Allington, 3 Atk. 457; Mitf. Eq. PI. by Jeremy, 198. " Chambers v. Thompson, 4 Bro. Ch. K. 434, and Mr. Belt's note (3). ' Ibid. ♦ Knch V. Finch, 2 Ves. 491, 493 ; Mitf. Eq. PI. by Jeremy, 197, 285 ; Cooper, Eq. PI. 205 ; Beames, PL in Eq. 261, 264, 265 ; Brownsword v. Edwards, 2 Ves. 243, 245 ; Post, § 588. s Ibid. ' Finch V. Finch, 2 Vps. 494. ' Attorney-General v. Duplessis, Parker, K. 144, 158, 163, 164 ; S. C. 2 Ves. 286 ; Mitf. Eq. PI. by Jeremy, 286 ; De Hourmelin v. Sheldon, 1 Beavan, K. . § 584 - 587.] DEMURRERS TO DISCOVERY. 493 § 587. And in cases to which the objection applies, that the dis- covery will involve the party in a penalty or a forfeiture, it is 79, 91. ^ See also Smith v. Eead, 1 Atk. 527 ; S. C. cited Parker, R. 157. This distinction between the cases of a disability from alienage, and a disability im- posed by statute, does not seem to be founded upon grounds entirely satisfactory. In each case, the effect of the discovery is, to seek a forfeiture of an estate already Vested. Lord Hardwicke on one occasion, (Smith v. Read, 1 Atk. 527,) said: >' That there is no difference between a forfeiture of a thing vested, and a dis- ability to take inflicted as a penalty." Yet he added, in the same case : " In the cases of aliens, bastards, &c., there is a difference, where the disability arises from the rules of law, and where it is imposed as a penalty." Is not the forfeiture of an estate taken by an alien, in substance, a penalty for his assuming to purchase and hold real estate? Lord Redesdale, (Mitf Eq. PI. by Jeremy, 197,) admits the existence of the distinction, stating that a discovery may be required of a matter, which would show the defendant incapable of having any interest or title. But that would seem to apply to the case of Papists, as well as of aliens. See also Hare on Discov. 145-147. Mr. Beames dissents from the doctrine, and makes the following important suggestions : " This leads us to notice a further qualificatton of the general rule, arising out of the discussions which took place in the case just alluded to. Upon an information on behalf of the Crown, in order to discover whether the defendant were an alien, &c., it was resolved that the defendant was bound to give the discovery, the legal disability of an alien not being a penalty or a forfeiture. There are two observations which obviously present themselves upon this case : the first applicable to the language of it ; the second applicable to the doctrine of it. With respect to the language of this de- cision, it seems not very accurately to express what it intends to express. It is an obvious proposition, that the legal disability to hold lands is not in itself a pen- alty or a forfeiture. To confound cause and effect, the source and its consequence, b not a very common error in old law books. If it be asked whether waste, com- mitted by a tenant for life, be a forfeiture, it might logically be answered, that it was not ; but if it be asked whether it will not cause or produce a forfeiture, it would be as logically answered, that it would do so. _ The question, then, ought to have been, whether the legal disability of an alien would not, in effect, produce either a penalty or a forfeiture ? With respect to the doctrine of the case in the House of Lords, it is to be observed, that Lord Hardwicke states his own doctrine to have been directly the reverse of it. ' I held she was not bound to discover whether she was an alien ; but that she was, whether her child was an alien.' His lordship recognizes this doctrine in 1752, when the case of Pinch v. Pinch was decided by him. From the report of Smith v. Read, Lord Hardwicke seems to have had a similar general idea in 1736. ' There is no difference between a forfeiture of a thing vested, and a disability to take, inflicted as a penalty.' It is true, his lordship, in the same case, says : ' There is a difference, where the dis- ability arises from the rules of the law, and where it is imposed as a penalty." There certainly is a difference as to the origin of the disabilities in these cases ; but as to their effect upon the individual, it is, with unfeigned respect for that very great judge, apprehended, that there can be no difference. The punish- ment vdll be neither more nor less, whether inflicted by the common law, or by a EQ. PL. 42 494 EQUITY PLEADINGS. [CH. XI. wholly immaterial, whether the discovery be sought in an original bill in aid of an action at law, or in a cross bill in aid of a defence to an original bill in equity. The defendant, in each case, is equally entitled to resist the discovery.^ § 588. But, although the defendant is thus protected from the discovery of any matter, which would subject him to a penalty or a forfeiture, he may, nevertheless, be required to disclose other facts, which will have no such tendency, although they may be in- volved in the general result, as it is connected with the fact of penalty or forfeiture. Thus, although a man is not bound to dis- cover whether he is married, or not, for that might subject him, if answered, to ecclesiastical censures, yet he may be required to dis- close whether he has a legitimate son.^ So, although a lessee for life is not bound to discover whether he has made a lease for the life of another ; for that might occasion a forfeiture of his estate ; yet he is bound to discover whether he is tenant for life, or not ; for that is a collateral matter, and not to the point of forfeiture.* So, if a bill should be brought for a discovery of waste against a person, charging him to be tenant for life, and also charging, that he had committed waste, the defendant would be bound to discover whether he was tenant for life, or not, although he might demur to the discovery of the waste.* So, although a bankrupt is not bound to discover whether he has committed any acts of bank- statute. It should, however, in conclusion, be subjoined, that the decision in the House of Lords is subsequent, in point of date, to both of the cases before Lord Hardwicke. There is an old case, deciding, that if the Crown should call for a discovery, in order to give effect to a forfeiture occasioned by outlawiy, the defendant could not refuse to afford the discovery of his estate; because the Crown is entitled to the estate by course of law, and the outlawry is in the nature of a gift to the King." See also Mr. Eaithby's note to Bird v. Hardwicke, 1 Vern. K. 110, note (1), 111. A devise of lands to English subjects, in trust to sell the lands and invest the proceeds in the funds in trust for aliens, would not be open to the objection ; for there is nothing in public policy to prevent aliens from hold- ing stock in the public funds. De Hourmelin v. Sheldon, 1 Beavan, R. 79. But see Fourdriu v. Gowdey, 3 Mylne & Keen, 383. ' Honeywood v. Selwin, 3 Atk. 276; Chambers v. Thompson, 4 Bro. Ch. E. 434 ; Southall v. — , 1 Younge, K. 308 ; Mitf. Eq. PI. by Jeremy, 198. ' Ante, § 585 ; Finch v. Finch, 2 Ves. 491 ; Mitf. Eq. PI. by Jeremy, 285, 286 ; Cooper, Eq. PI. 205. ' Weaver v. Earl of Meath, 2 Ves. 108, 109 ; Mitf. Eq. PI. by Jeremy, 286. * Weaver v. Earl of Meath, 2 Ves. 108, 109 ; Mitf. Eq. PI. by Jeremy, 286, 287. See Harrison v. Southcote, 1 Atk. 539 ; Southall v. , 1 Younge, R. 308 ; Ante, § 580. §587-589.] DEMUEEEES TO DISCOVEEY. 495 ruptcy, yet he may be required to discover whether he has traded, or not.^ § 589. We have already also had occasion incidentally to take notice of another exception to the general doctrine of the protec- tion of a defendant from a discovery of anything which may in- volve him in a penalty or a forfeiture. It is, that the defendant may, by contract, expressly preclude himself from the objection, so fp,r as respects a penalty of forfeiture, but not so far as respects the discovery of a crime.^ So, it is said, he may by a natural or ne- cessary implication, arising from a contract, in like manner waive the objection. As, where the relation of principal and agent ex- ists, and thereby incidentally, and by implication, a right of dis- covery results from the high moral obligation of the agent, to discover the acts done by him in regard to his principal. Thus, for example, where a bill of discovery was brought by his princi- pal, against a broker in the city of London, in aid of an action at law, for a discovery of acts of misconduct by the broker, it was held, that the broker was bound to make the discovery of the acts, although by so doing he would subject himself to the penalty of a bond, which he had given to the city, upon condition for his official good conduct.^ ^ Chambers v. Thompson, 4 Bro. Ch. E. 434, 436, and Mr. Belt's note ; Ante, §584. ^ Ante, § 521, 577. ' Green v. Weaver, 1 Sim. E. 404. In this case, the vice-chancellor, (Sir A. Hart,) went into an elaborate review of the cases, and came to the conclusion, which is stated in the text : " If," said he, on that occasion, " I decide that the defendants are bound to answer, it may be said, that my decision is inconsistent with the doctrine laid down by great judges in former cases. If I decide that the defendants are not bound to answer, I may render those acts of parliament, especially framed for the purpose of protecting principals from the dishonesty of their agents, a cover to their agents in the grossest and most scandalous frauds. For, stripped of the effect of the statutes, as inflicting penalties, it would be the common course of the court of equity to compel each of these defendants to state, on oath, whether they were employed as brokers and agents of the plaintiff, and whether they acted in that capacity, and to set forth every particular of each of the defendant's dealings as agent or broker of the plaintiff, and to produce every entry in his books, and every document relating to these transactions. If a court of equity, in this case, protected him from the discovery, the plaintiff's proceed- ing at law must be quite nugatory ; for the materials of evidence must necessarily rest, almost exclusively (as I have observed) in their possession. I hope this question may be decided without my falling into the dilemma of impeaching any aat«rior decision. I have looked through every case on this subject that was cited; and, most especially, I have applied myself to those which were_ before 496 EQUITY PLEADINGS. [CH. XI. § 690. A distinction also exists, and should be constantly borne in mind, between cases of a penalty or a forfeiture, strictly so Lord Eldon, which have been relied on. I have looked through a great variety of those cases, and, I believe, I haVe looked through and considered every case, that a diligent search in the books has enabled me to find, that has any bearing on this question. Upon those cases, that I do not now rely on, it may be suffi- cient to say, they establish the general principle, and must protect the defendant against the discovery. But, from the current of authority, I think this result may be derived, as established by a series of decisions, travelling through a long series of years, namely, that a man, by the effect of his own acts, may exclude himself from the benefit of that rule of a court of equity ; or, to adopt the ex- pression of a very great Judge; he may contract himself out of the protection afforded by the principle of the court." Then, after reviewing the cases, he added : " I think, from this series of decisions, there is sufficient authority for me to decide, that a man may contract, so as to incur the obligation to make the dis- covery of all the facts relative to that contract, although the effect of that discov- ery may, incidentally, subject him to pecuniary penalties." Then, proceeding to the direct question before him, he said : " Then, the next question is, inasmuch as the objection to make the discovery arose, in the cases I have referred to, from the stipulations of instruments under seal, can the solemnity of the seal make that obligation to discover more obligatory in a court of equity, than the moral obliga- tion resulting from principal and agent, when one reposes and another accepts the confidence so reposed ? The reasoning of the judgment, in the case of the East India Company v. Atkins, I think, shows, conclusively, an opinion, that such was the moral obligation, that, on that ground, the discovery ought to be made. Although Strange is not a book we can place much confidence in, yet, in this particular instance, it appears to be a very able and sound judgment, and well reported. I should say, that a court of equity knows no difference between a mere moral obligation, and one resulting from stipulation by deed. If we con- trast the circumstances of this case with those of the decisions 1 have referred to, I think we shall find, that this case creates a higher moral obligation to give the discovery than any of those cases. In each of those cases, the parties dealt at arms' length. The employer contemplated a breach of the contract by the agent, and stipulated for his own damages in case a breach of contract should take place. In the present case, the employer surrendered himself, unconditionally, to the agent, whom he employed, in the confidence, that the agent sustained the character that he publicly assumed. The employer had no reason to suspect, nor had any means of detecting the misrepresentation of the fact, whether they were, or not, duly constituted legal brokers. Much less could he apprehend, that they were daily and hourly living in the violation of the law of the country in so act- ing, and that they kept this violation lurking in the background, to be brought forward, by way of defence, against the just demands of those, whose confidence they invited and abused. If a court of equity gives effect to a defence so consti- tuted, I do not know that there can be any reason, why an executor or adminis- trator, who has made oath duly to administer the eissets, and executed a bond for that purpose, may not allege those matters in answer to a bill of discovery, charging him with fraudulently rendering an account of the assets. This is the § 690, 591.] DEMURREKS TO DISCOVERY. 497 called, and cases where the party has contracted to pay a sum as stipulated damages, for any act done, or omitted to be done, by him. In the latter cases, the objection is not strictly applicable, and cannot, therefore, be valid. What are properly to be deemed cases of stipulated damages, and what are cases in the nature of a penalty or a forfeiture, may in many instances be a matter of very nice and critical inquiry .i For it is certain, that merely giving the name of stipulated damages in a transaction, where it is in re- ality a penalty, will not change the nature of the objection ; but it will be still available.^ § 591. In the next place, in regard to the other branch of the rule, that no person shall be bound to criminate himself, or to fur- nish evidence for any step in the process, by which a criminal ac- cusation or punishment can be sustained. Whenever the point of discovery has a direct tendency to criminate the party, the case is very clear. But the rule is equally applicable to questions which have an indirect tendency to the same end, and are connected with the other questions.^ The defendant is not compellable to answer, either the broad leading fact, or any other fact, the answer to which may form a step in the prosecution.* Thus, for example, where a ground upon which I act.'' See Hare on Discov. 153, 154 ; Id. 141, 142. Where a defendant submits to be examined on matters which will subject him to a penalty, courts of equity will not interpose. 1 Sim. R. 429 ; Hare on Discov. 143, 144. ' Hare on Discov. 144 ; East India Company v. Neave, 5 Ves. 183, 185 ; Jones V. Green, 3 Younge & Jerv. 298 ; Ray v. Duke of Beaufort, 2 Atk. 193, 194 ; Hardy v. Martin, 1 Cox, 26. » Ibid. ' Paxton V. Douglass, 16 Ves. 242, 243 ; S. C. 19 Ves. 225 ; Soulhall v. , 1 Younge, R. 308, 316, 317; Cooper, Eq. PI. 203, 204; Ex parte Symes, 11 Ves. 525 ; Ante, § 577, 578 ; Foss v. Haynes, 31 Maine, 90. * Claridge v. Hoare, 14 Ves. 59 ; Cooper, Eq. PI. 204 ; Mitf. Eq. PI. by Jere- my, 194, 195. But see Attorney-General v. Curray, 2 Jones (Irish) R. 791. In this case, an information against distillers in Ireland charged that they distilled large quantities of spirits, for which they ought to have been charged with duty, but were not, and that they evaded payment by concealing the distillation, and pretending that their distillery was silent during the time the, spirits were dis- tilled ; and required the defendants to discover the actual quantities of work fer- mented in the still, and prayed for an account of the duties payable to the Crown on spirits distilled by the defendants ; the Attorney-General waiving all penalties and forfeitures, it was held, tiat the defendants were bound to answer the charges fully, and could not protect themselves on the ground that the facts charged, if coupled with other facts, would show that they were guilty of conspiring to de- £faud the Crown. 42* 498 EQUITY PLEADINGS. [CH. XI. bill was brought to discover whether a bureau, which was deliv- ered to the defendant for the purpose of being repaired, was not found by the defendant to contain a secret drawer with money in it, which he converted to his own use ; upon a demurrer, stating the ground that the discovery sought would subject the defendant to a criminal prosecution, the objection was allowed ; for the charge amounted to a charge of felony.^ So, if a pocket-boob, containing bank-notes, should be left in the pocket of a coat, sent to a tailor to be mended ; and he should take the pocket-book out of the pocket, and convert the bank-notes to his own use ; or if a pocket- book should be left in a hackney-coach, and the coachman, not knowing to whom of the people, who were in the coach in the course of the day, it belonged, should open and take the contents to his own use ; and a bill for a discovery of the facts in either case should be brought, it would be a clear case for a demurrer ; for the party would be guilty of a felony, and would by his answer be called upon to criminate himself.^ § 592. Upon the same ground, where a bill was brought for a discovery, stating, that the son of the plaintiff had been charged with being guilty of an embezzlement, as clerk of the defendants, and that the plaintiff had transferred certain stock to the defend- ants to satisfy the deficiency, and to prevent a prosecution against his son ; and it prayed for a discovery of the facts, and retrans- fer of the stock ; it was held that the transaction, as charged, in effect amounted to the composition of a felony ; and, therefore, the defendants were not bound to answer it.^ § 593. And it will make no difference in cases of this sort whether the charge is such as will subject the party to punishment by the common law, or only to ecclesiastical punishments and cen- sures ; for, in each case, the party is entitled to 'the same protec- tion. Thus, for example, if a bill should be brought for the dis- covery of the fact of a marriage by the plaintiff with a particular woman, who was his sister, or sister-in-law, he would not be bound to make the discovery ; for the marriage would be incestuous ; ' Cartwright v. Green, 8 Ves. 405, 406 ; Cooper, Eq. PI. 203. / ' Cartwright v. Green, 8 Ves. 409, 410 ; Cooper, Eq. PI. 203 ; Ocean Ins. Co. V. Fields, 2 Story, K. 59. For the like reason, a married woman may demur to a discovery, which would subject her husband to a criminal prosecution. Cart- wright V. Green, 8 Ves. 405 ; Cooper, Eq. PL 204. ^ Claridge v. Hoare, 14 Ves. 59 ; Cooper, Eq. PI. 203, 204 ; Guiborn v. Fel- lowes, 8 Vin. Abridg. 643. §591-595.] DEMUERERS TO DISCOVERY. 499 and the Kliscovery of that would be one link in the chain of evi- dence to convict the defendant.^ § 594. So, where a bill was brought by the executors of a coun- sellor at law in England for a sum in gross, agreed to be given to the testator for his advice and services upon a certain event of the suit ; on a demurrer by the defendant, because, if he should an- swer the bill, it would subject him to the statutes against mainten- ance, it being against the course of justice for a counsellor at law to make a contract for a gross sum, to be paid to him upon the event of a cause, the demurrer was held good.^ So, where a bill was brought, charging that a perjury had been committed by the procurement of the defendant, and praying a discovery, the bill was held demurrable.^ § 595. It was formerly thought, that the same rule applied to cases where the defendant was called upon to make a discovery of any act of moral turpitude. And accordingly, it has been laid down by Lord Redesdale, that it should seem, that a demurrer will hold to any discovery, which may tend to show the defendant to be guilty of any moral turpitude ; such as the birth of a child born out of wedlock.* But that doctrine has been since overturned ; and it is now held, that the defendant may be compelled to make a discovery of any act of moral turpitude, which does not amount to a public offence, or an indictable crime.^ The boundaries, in- deed, between matter which is indictable, and that which amounts to a mere private fraud, are often very nice, and obscure, and dif- ficult to be distinguished.^ Thus, for example, the mere charge of a conspiracy in a common bill against all the defendants, is not objectionable ; but if such a conspiracy is charged, as is indictable, * Claridge v. Hoare, 14 Ves. 55 ; Cooper, Eq. PI. 204 ; Brownsword v. Ed- wards, 2 Ves. 243, 245 ; Mr. Kaithby's note to Bird v. Hardwicke, 1 Vera. 110, note (1) ; Chetwynd v. Lindon, 2 Ves. 451 ; Franco v. Bolton, 3 Ves. 369, 371 ; Ex parte Symes, 11 Ves. 525; Baker v. Pritchard, 2 Atk. 389 ; Hare on Discov. 152-156. » Penrice v. Parker, Kep. Temp. Finch, 75. See also Sharp v. Evans, 3 P. Will. 375 ; Wallis v. Duke of Kutland, 3 Ves. 494. ' Baker v. Pritchard, 2 Atk. 383, 389 ; Selby v. Crew, 2 Anst. 504. * Mitf. Eq. PI. by Jeremy, 196; Attorney-General v. Duplessis, Parker, R. 163; Chetwynd v. Lindon, 2 Ves. 450, 451 ; Franco v. Bolton, 3 Ves. 369, 371, 372; King v. Burr, 3 Meriv. E. 693. ' Hare on Discov. 142 ; Chetwynd v. Lindon, 2 Ves. 451. « Chetwynd v. Lindon, 2 Ves. 451 ; Mitf. Eq. PI. by Jeremy, 40, 41 ; Ante, § 30, note. 500 EQUITY PLEADINGS.^ [CH. XI. the discovery cannot be compelled, and the objection to it by de- murrer will be good.^ § 696. Upon this ground it is, that if the bill charges fraud in the party defendant, although involving the basest moral turpitude, he is bound to make the discovery. Nothing is more common than to bring bills for discovery and relief, founded exclusively upon charges of fraud. And it has been stated by Lord Eldon, that in the Exchequer, the underwriters upon policies of insurance often brought bills against the assured, to obtain a discovery and relief, in respect to the assured's actions against them, by pleading frauds, which frauds would have been indictable.^ But, certainly, it is inconsistent with the general principle already stated, to com- pel a discovery of any indictable frauds. As to other frauds, not indictable, there does not seem any just ground to withhold the discovery. § 597. An exception to the general rule, already stated, has been intimated to exist in a civil case involving considerations of a criminal character. Thus, it has been suggested, that if a suit is brought by a plaintiff at law, founded upon a libel, which im- putes to him a criminal offence ; and a justification is put in, af- firming the charge ; a bill for a discovery may be filed against the defendant to compel him to discover whether the charge is true or not ; upon the ground, that when a party brings an action for a libel, he is bound to give the discovery which the defendant at law insists upon to sustain his defence.^ This doctrine seems ut- terly inconsistent with the rule, that no man is bound to crimi- ^ Chetwynd v. Lindon, 2 Ves. 451 ; Mitf. Eq. PI. by Jeremy, 40, 41 ; Ante, § 30 and note ; Mayor of London v. Levy, 8 Ves. 404 ; Dunnher v. Corporation of Chippenham, 14 Ves. 245, 251, 255 ; Oliver v. Haywood, 1 Anst. R. 82, 83. In Oliver v. Haywood, 1 Anst. E. 82, a bill was brought by a rector for tithes against the defendants, his parishioners, stating, that the right to take them in kind from the different defendants, accrued at different periods, and praying a discovery, whether the defendants have not combined together, to support one another against the plaintiff, as parson. On a demurrer to the discovery, Hotham, Baron, said : " Either the combination is criminal, or it is not. If it is, then the discovery cannot be granted, as subjecting the defendants to a penalty. If it is not criminal, then the discovery is useless and impertinent; and therefore the demurrer must on either ground be allowed." " Macaulay v. Shackell, 1 Bligh, (N. S.) R, 121, 122, 133, 134; S. C. 2 Kuss. R. 550, note. See Foss v. Haynes, 31 Maine, 81. ' Wilmot V. Maccabe, 4 Sim. R. 263. But see Ante, § 575-578, and March V. Davison, 9 Paige, 580. §595-598.] DEMURRERS TO DISCOVERY. 501 nate himself.^ And if it be true, in regard to defences to be made to actions at law, it must be equally true in regard to defences of a similar nature in equity, -which are sought to be supported by a cross bill of discovery. Yet there is no questiort, that a demur- rer would lie in fhe latter cases to a discovery of any fact, subject- ing the party to a criminal prosecution, or to a penalty or a for- feiture.2 The doctrine seems, however, to be completely over- turned by the recent authorities, and the rule estabKshed, that no discovery in such a case can be compelled.^ § 598. Where a penalty or a forfeiture has at one time attached to a particular act, of which a discovery is sought ; and the pen- alty or the forfeiture, either by lapse of time, or the death of the party, by or against whom it may be enforced, or otherwise, has ceased to attach to it, the objection to the discovery is thereby re- moved ; and the bill is no longer demurrable.* Thus, for exam- ' Chambers v. Thompson, 4 Bro. Ch. E. 434 ; Thorpe v. Macaulay, 5 Madd. K. 218, 229. ' Honeywood v. Selwin, 3 Atk. 276; Ante, § 575-578; Southall v. , 1 Totmge, R. 308, 316. This subject has been already discussed in an antecedent note (Ante, § 553, note) ; and I know no authority which distinctly sustains the proposition, that the defendant is bound to make the discovery. The case of Chambers v. Thompson, (4 Bro. Cb. K. 434,) is a direct authority against it ; and so is Thorpe v. Macaulay, 5 Madd. R. 210. What fell from Lord Eldon in Macaulay v. Shackell, 1 Bligh, (N. S.) R. 96, 121, 122, can hardly be applied in a just sense to such a purpose. The language of Lord Eldon was mainly directed to the only question then before the court, namely, whether a court of equity would grant a commission abroad to take testimony in aid of a defence to a civil action for a Hbel, which involved a charge of a criminal offence. The court very properly held that it would ; for in such an action, it was only in aid of a civil right. In the recent case of Glynn v. Houston, 1 Keen, E. 329, which I had not seen when the text was originally written, it was held by the court, that, to a bill of discovery, in aid of an action brought by the plaintiff for an assault and false imprisonment, a demurrer was good ; because it was personal tort, and would subject the defendant to penal consequences. And where the whole object of a bill of discovery is criminatory, a general demurrer will be good, notwithstanding some of the interrogatories, separately considered, may relate to matters not ■ directly criminatory. Ibid. ' Glynn v. Houston, 1 Keen, R. 329. In March v. Davison, 9 Paige, R. 580, Mr. Chancellor Walworth held, that in the case of a libel, the defendant could not be compelled in a bill of discovery to discover anything which would make him liable to an indictment criminally ; but he was compellable to discover other facts in support of the action, which would not subject him to a criminal prosecu- tion, or to a penalty or forfeiture. " Hare on Discov. 147; Devinal v. Smith, 25 Maine, 397. 502 EQUITY PLEADINGS. [CH. XI. pie, if the statute limitation of a penalty or a forfeiture has ex- pired before the suit is brought, or pending the suit before the discovery is given, the defendant is bound to answer ; for he is no longer within the reach of the perils, agains_t which the pro- tection is allowed.^ • § 599. (8.) Eighthly. Another objection which may be taken by way of demurrer to a bill of discovery, is, that it seeks the dis- covery of a fact from one, whose knowledge of the fact (as ap- pears on the face of the bill) was derived from the confidence reposed in him, as counsel, attorney, solicitor, or arbitrator .^ The privilege of secrecy, which is thus afforded to professional men, in regard to the communications passing between them and their clients, is in truth not so much the privilege of the adviser as of his client. And it is quite possible that the client may be com- pellable to disclose the facts, when his professional adviser would be bound to withhold them.^ [But in some of the later cases it has been considered at least very doubtful, whether a client is ' Parkhurst v. Lowten, 1 Meriv. 400 ; Corporation of Trinity House v. Burge, 2 Sim. 411 ; Williams v. Farrington, 3 Bro. Ch. R. 38; Anon. 1 Vern. 60. ' Mitf. Eq. PI. by Jeremy, 288, and cases there cited; Hare on Discov. 163- 181 ; Cooper, Eq. PI. 295, 300; 2 Story on Eq. Jurisp. § 1457. ' Preston v. Carr, 1 Younge & Jerv. 175, 179; Hare on Discov. 174, 175. This whole subject is discussed in a most elaborate manner by Lord Brougham, in Greenough v. Gaskell, 1 Mylne & Keen, 100, where the distinction here noticed is adverted to. It may be further added, that although the client may be bound to disclose facts ; yet it does not follow, that he is bound to disclose his own statements and communications made to his professional advisers. Lord Lyndhurst and Lord Brougham have held the contrary. Greenough v. Gaskell, 1 Mylne & Keen, 100. In this case. Lord Brougham said: " To compel a party himself to answer upon oath, even to his belief, or his thoughts, is one thing. Nay, to compel him to disclose what he has written or spoken to others, not being his professional advisers, is competent to the party seeking the dis- covery ; for such communications are not necessary to the conduct of judicial business, and the defence or prosecution of men's rights by the aid of skilful persons. To force from the party himself the production of communications made by him to professional men, seems inconsistent with the possibility of an ignorant man safely resorting to professional advice, and can only be justified, if the authority of decided cases warrants it. But no authority sanctions the mueh wilder violation of professional confidence, and in circumstances wholly different, which would be involved in compelling counsel, or attorneys, or solici- tors, to disclose matters committed to them in their professional capacity, and which, but for their employment as professional men, they would not have become possessed of" Post, § 825, note. See also Desborough v. Rawlins, 3 Mylne & Craig, 615. §598-599.] DEMURRERS TO DISCOVERT. 503 bound to disclose any confidential communication between him and his solicitor, which his sohcitor would be privileged from dis- closing.i And it is said that a client is certainly privileged from disclosing such communications after the commencement of a dis- pute, ending in litigatioif.^] The privilege is founded upon a great public policy ; for otherwise, it might not only be hazard- ous, but even ruinous to a client, to consult professional advisers, or to disclose to them the facts, which may be essential to the just support or defence of his rights, and of the suits which may involve them.^ And not only is the professional adviser pro- tected from a discovery of the communications between him and his client, but the client also is not bound to disclose such [} Pearse v. Pearse, 1 De Gex & Smale, 12; where this question is examined with much ability, by Knight Bruce, vice-chancellor. ' Pearse v. Pearse, 1 De Gex & Smale, 27; and see Hughes v. Biddulph, 4 Kuss. 190; Holmes v. Baddely, 1 Phillips, 476.] ' Greenough v. Gaskell, 1 Mylne & Keen, 100-103; Parkhurst v. Lowten, 2 Swanst. R. 216, 221, 222 ; Kichards v. Jackson, 18 Ves. 472. Lord Brougham has stated this doctrine with great energy and clearness in Greenough v. Gaskell, 1 Mylne & Keen, 103. " The foundation of this rule," said he, "is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance, which the law attributes to the business of legal professors, or any particular disposition to afford them protection, although certainly it may not be very easy to discover, why a like privilege has been refused to others, and es- pecially to medical advisers. But it is out of regard to the interests of justice which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations, which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources, deprived of all professional assistance. A man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous.'' The subject of the nature and extent of this professional privilege was much discussed also in the case of Desborough v. Bawlins, 3 Mylne & Craig, 515, 519-525, by Lord Chancellor Cottenham. The same public policy governs in the case of arbitrators stated in Newhall v. Hobbs, 3 Cush. 274. 512 EQUITY PLEADINGS. [CH. XI. § 607. The rule, however, is, as has been already suggested,^ subject to some uncontroverted exceptions ; among which may be stated to be the objection, that the discovery would make the de- fendant liable to a penalty or a forfeiture, or have a tendency thereto;^ or would compel him to criminate himself; or would involve him in a breach of professional confidence as counsel, so- licitor, or attorney ; or that the discovery would be immaterial ; or that it would compel him to discover matters not applicable to the plaintiff's title, but solely applicable to his own title.^ Some of these exceptions will again come under review in the subsequent pages.* § 608. It has been remarked by Lord Redesdale, that not only is a demurrer the proper mode of taking such an objection,^ but he has added, in another place, that after a demurrer has been overruled, a new defence may be made by a demurrer less extend- ed, or by a plea, or by an answer ; and that, after a plea has been overruled, a new defence may be made by a demurrer, by a new plea, or by an answer ; and the proceedings upon the new defence will be the same as if it had been originally made.^ And it has able that this point should be brought before the court by plea rather than by answer ; as an answer prima fade admits, that the defendant cannot plead. And, with the exception of the cases in which it is settled, as general law, that the party is not to answer a particular circumstance, as, that he is not to criminate himself, the case of a purchaser for a valuable consideration, &c., this court does not trust the master, generally, with the determination, how much of the answer, consid- ered as a plea, would be a good defence. The master is, therefore, almost under the necessity of admitting an exception ; and, when the propriety of his judgment comes to be argued here, it would be most incongruous, that the court, admitting his judgment not to be wrong, should yet give a different judgment, considering the answer as a plea." See also Somerville v. Mackay, 16 Ves. 387; Leonard v. Leonard, 1 Ball & Beatt. 324, 325. • Ante, § 605. ' If the defendant, in an answer, means to avail himself of the objection that his answer to a particular matter of discovery will expose him to a penalty or forfeiture, he must, in his answer, specially set up that objection. Slowman v. Kelly, 3 Younge & Coll. 673 ; Post, § 846. = Hare on Discov. 262, 264, 266 - 278 ; Id. 290 ; Id. 149 ; Parkhurst v. Lowten, 1 Meriv. R. 401. See also Phillips v. Prevost, 4 John. Ch. R. 205, and cases there cited; Rowe v. Teed, 15 Ves. 376-379; Leonard v. Leonard, 1 Ball & Beatt. 324, 326; Ante, § 575-588, 599-603. • Post, § 824, 825. •■ Mitf. Eq. PI. by Jeremy, 14, 16, 107, 218. • Lord Redesdale's language, (Miff.Eq. PI. by Jeremy, 16,) is as follows: "If a demurrer or plea is overruled upon argument, the defendant must make a new § 607, 608.] DEMUREERS TO DISCOVERY. 513 also been said, that, where a demurrer is overruled, that does not deprive the party of his equity ; for the same thing may be insisted on in his answer.^ These propositions require qualification ; for, however true in general they may be in regard to bills of relief, we should be misled in applying them to bills of discovery .^ In the cases of bills of relief, to which the general rule extends, that he who submits to answer, must answer fully the overruling of a demurrer, or of a plea, although it is .not conclusive upon the title to rehef, is conclusive upon the question of discovery ; for it amounts to a decision, that the matter is proper for a judicial in- quiry, and the defendant can no longer refuse to the plaintiff the means of prosecuting that inquiry.^ defence. This he cannot do by a second demurrer of the same extent, after one demurrer has been overruled ; for although, by a standing order of the court, a cause of demurrer must be set forth in the pleading, yet, if that is overruled, any other cause appearing on the bill may be offered on argument of the demurrer, and, if valid, will be allowed ; the rule of the court affecting only the costs. But after a demurrer has been overruled, a new defence may be made by a demurrer less extended, or by plea, or answer ; and after a plea has been overruled, defence may be made by demurrer, by a new plea, or by an answer ; and the proceedings upon the new defence will be the same as if it had been originally made." In Finch V. Finch, 2 Ves. 492, Lord Hardwicke is also reported to have said: "It is not like a second demurrer on discovery, or a second plea, which cannot be put in a second time, if overruled ; yet, notwithstanding, the court frequently allows the defendant, after a plea has been overruled, to insist upon the same matter by answer, which was overruled as a plea." See also Hare on Discov. 289, 293 ; Mitf. Eq. PL by Jeremy, 216, 217, and note (i) ; Ante, § 460. ' Bishop of Sodor and Man v. Derby, 2 Ves. 357 ; Attorney-General v. Brown, I Swanst. K. 304, and note. ' Hare on Discov. 289, 290. ' Hare on Discov. 290. Although this is the general rule, yet the court, upon everruUng a demurrer to a bill of discovery, will, by its discretion, in a fit case, give leave to the defendant to insist, by way of answer, that he is not bound to make the discovery required, or will give him liberty to file another demurrer less extensive. Mitf. Eq. PI. by Jeremy, 217, and note {x) ; Baker v. Mellish, II Ves. 68; Thorp v. Macaulay 5 Madd. R. 218; Earl of Suffolk v. Green, 1 Atk.450; Hare on Discov. 290, 293, 294; Portarlington v. Soulby, 6 Sim. R. 356; Ante, § 460. Mr. Hare has added an important qualification to the language of the text : " Upon the special objections to discovery," says he, " the overruling a demurrer or plea, whether general, or of partial extent, is not deci- sive. The effect of the decision against the demurrer or plea, with regard to such objections, is, that they cannot be taken by a second demurrer or plea, without the leave of the court. But they may still be taken by answer, as they might hav« been, if no previous defence had been attempted." Hare on Discov. 290, 293, 295. Lord Eldon, in Baker v. Mellish, 11 Ves. 73, used the foUowmg 514 EQUITY PLEADINGS. [CH. XI. § 609. The foregoing remarks have been principally addressed to cases where the objection to a discovery applies to the entire claim of the plaintiff. But they are equally applicable to cases where the objection applies only to special and particular discov- eries sought by the bill. In the latter case, equally as in the for- mer, the defendant, if he means to make any objection to the dis- covery, must do so by a demurrer, or by a plea ; for the same general rule, subject to the exceptions already stated, governs, that the defendant, if he answers at all, must answer fully .^ § 610. Before closing this head of demurrers to bills of discov- ery, it is proper to add, that, where the sole object of a bill is to obtain a discovery, some grounds of demurrer which, if the bill prayed for relief, would extend to discovery as well as to the relief, will not hold.^ Thus, a demurrer to a bill for a discovery merely, will not hold for want of parties ; for the plaintiff seeks no decree ; nor, in general, for want of equity in the plaintiff's case, for the language on the same point : " As to particular questions upon this record, the defendant should not be called upon to answer ; for he is put precisely in the same situation as if he had answered ; and, notwithstanding a demurrer to the whole bill overruled, the defendant may object to answer a question, if it is not lawful to ask it ; and may, by answer, protect himself from answering such a question. But, whether he should be in that situation, is a very different consid- eration ; for, if he says, he is not bound to answer, the plaintiff may immediately contest with him, whether he has sufficiently answered. But he is not in that state, if at liberty to demur again, until that demurrer is disposed of; and then the question as to the sufficiency of the answer upon the other points is to com- mence. Finding this question not settled by decision, and dicta both ways, the best opinion I can form, is, that the defendant, having demurred to the whole bill, shall not demur to a part, without leave." ' Hare on Discov. 127-130, 255, 256, 262; Ante, § 605, 606, note; Post, §810, 846, 847. But see the rule of the Supreme Court of the United States, cited Post, § 810, 846, note, which has materially altered this doctrine. * Mitf. Eq. PI. by Jeremy, 201, 206 ; Hare on Discov. 124- 126 ; Post, § 745. It was said by Lord Chancellor Eldon, in Cholmondeley v. Clinton, 2 Meriv. R. 74, that there is no instance of a bill of discovery merely being allowed to be amended by adding new parties as plaintiffs; and he added, that he would not make a precedent, for which there was no foundation in the principles or prac- tice of the court. It is to be understood, however, that his lordship was here speaking of a bill of discovery in aid of an action at law, where the persons sought to be made parties, were not plaintiffs in the suit at law. In such a case, as we have seen, no person can be made a party to the bill of discovery, who is not a party to the suit at law. Ante, § 569, and notes. See S. P. Glyn v. Scares, 3 Mylne & Keen, 450 ; Queen of Portugal v. Glyn, 1 West, H. of Lords, R. 258, 276 : S. C. 7 Clarke & Fin. 466. §609 -610 a.] DEMUEEEES TO BILLS NOT ORIGINAL. 515 same reason ; nor, because the bill is brought for the discovery of part of a matter ; for that is merely a demurrer, because the dis- covery would be insufficient.! But it should seem, that a demur- rer would hold to a bill for the discovery of several distinct matters against several distinct defendants.^ For, although a defendant is always eventually paid his costs upon a bill of discovery, if both parties live, and the plaintiff, by an amendment of his bill, does not extend it to pray relief ; yet the court ought not to permit the defendant to be "put to any unnecessary expense, as either the plaintiff or the defendant may die pending the suit.^ § 610 a. We have already had occasion to state, that in a bill of discovery, in aid of an action or defence at law, no person should be made a party to the bill, although he has a substantial interest in the action or defence at law, who is not a party of record in the action ; if he should be, the bill will be demurrable.* CHAPTER XII. DEMURKERS TO BILLS NOT ORIGINAL, [* § 611. Demurrers to bills not original. \ 6^2. Supplemental bills and those in the nature, &c. \ 613. Filed by those in privity with plaintiif. S 614. Must be upon matter arising after date of original bill. S 615. Must be such as cannot otherwise be brought in. S 616. Must be supplemental to original bill. § 617. Bills of revivor and in the nature of, &c. S 618. Demurrers for want of privity. § 619. Illustrations under this head. S 620. 'Demurrers for want of interest and right. § 621. Illustrations. § 622. Defects in the frame of the bill. S 623. Bill of discovery not revivable after discovery. § 624. Demurrer to bill of revivor does not reach defects in original bill. S 625. Must state facts material to maintain bill. § 626. These facts must all appear in bill of revivor. S 627. Demurrers to bills in nature of bills of revivor. * See next preceding note. ■'"'"• » Mitf. Eq. PI. by Jeremy, 200, 201 ; Hare on Discov. 124-126. « Ante, § 226, 541, 544, 569 ; Glyn v. Scares, 3 Mylne & Keen, 450 ; Irving v. Thompson, 9 Sim. R. 17, 29 ; Queen of Portugal v. Glyn, 1 West, H. of Lords, R. 258, 276 ; S. C. 7 Clarke & Fin. R. 466. 516 EQUITY PLEADINGS. [CH. XXl § 628. Demurrers to cross bill. § 629. Can- only seek equitable relief. § 630. Must then state the grounds of claiming such relief. () 631. Is confined to matters in original suit. § 632. Must conform to rules and practice of court. § 633. Filed by order of court, not open to demurrer. I) 634. Bills of review and in the nature of review. § 634 a. Brought for errors apparent on decree. 5 635. Must be brought in same time as writs of error. § 636. Bills brought by leave of court sometimes demurrable. § 637. Demurrer allowed is an eflFectual bar to second bill of review. § 638. Bill of review must be brought according to rules of court. § 639. Bills to impeach decree for fraud, how demurrable. ^ 640. Bills to suspend the operation of decree. § 641 . Court may refuse to carry into effect erroneous decree. § 642. Irregularity in frame of bill cause of demurrer. § 643. Must be according to course of practice of courts of equity. § 644. As where an original bill is brought in place of a bill of review. § 645, As an original bill to reform a former decree. § 646. Or where an amendment is made in the place of a supplemental bill, and vice versa,] § 611. Hitherto our attention has been limited to the consider- ation of demurrers to original bills, either for relief or for discov- erjt only. It is proper, therefore, to add a few words in regard to demurrers to bills not original. As every other kind of bill is a consequence of an original bill, many of the causes of demurrer, which will apply to an original bill, will also apply to any other kind of bill.^ But the peculiar form and object of each kinS of bill, afford distinct causes of demurrer to each ; and upon these we shall accordingly proceed to make some remarks. § 612. A demurrer to g, supplemental biil, or to a bill in the na- ture of a supplemental bill, may be filed whenever it appears upon the face of the supplemental bill, that the plaintiff has no right to file that species of bill, either from want of title or from mistake in pleading.^ Thus, in general, if a bill is filed by a tenant in tail, who dies, the issue in tail, or the remainder-man in tail, claiming under a new limitation, will be entitled to the benefit of the pro- ceedings had in the suit of the first tenant in tail, by merely fihng a supplemental bill.^ But where a subsequent remainder-man in tail files such a bill, if it appears, that the suit by the first tenant in tail was founded upon a contract made by him, and was not, in respect of charges, created by the donor ; or, if there is any par- ' Mitf. Eq. PI. by Jeremy, 201 ; Cooper, Eq. PI. 210. ' Cooper, Eq. PI. 212, 213. ' Ibid. § 611 - 614.] DEMURRERS TO BILLS NOT ORIGINAL. 617 ticular difference' in the interests derived from the donum, out of which both estates tail are carved ; or, if there are any other spe- cial circumstances iinder which the estate is held, existing in the case, the subsequent remainder-man in tail will not be permitted to file such a bill.i The case is still stronger against holding such bill to be sufficient, if the new remainder-man in tail happens to be the defendant instead of the plaintiff in the suit, and has any spe- cial facts to state in addition to or different from those which con- stituted the former defence. In such cases, more especially, the court will not give to a supplemental bill the effect of binding him by the shape of the defence already made.^ § 613. But except in special cases of this sort a supplemental bill is maintainable by persons standing in privity of title with the origmal plaintiff. Therefore, where a decree, in the suit of a feme covert by her next friend against her husband and trustees, had declared a right to a settlement by the husband on her and her children ; and the wife died before the master could make his re- port ; a supplemental bill being filed by the children to have a provision made for them, the defendants demurred, both on the form, and on the want of merits. But the court decreed the right of the children to the provision sought ; and thought, that if they had such right by the judgment in the former suit, it being sub- sequent to the institution of the proceedings in that suit, they might maintain a supplemental bill ; and, therefore, overruled the demurrer.^ § 614. It is a general rule, that the court will not permit a supplemental bill to be filed, except upon new matter ; because the same end can generally be answered by an amendm'ent of the original bill.* If, therefore, a supplemental bill is brought upon matter, arising before the fihng of the original bill, where the suit is in that stage of the proceedings, in which an amendment will be allowed, the defendant may demur.^ And even if a sup- ' Cooper, Eq. PL 75, 76, 212, 313. ' Cooper, Eq. PI. 74, 213, 214. Such a bill, though called in Murray v. Eli- bank, 10 Ves. 84, a supplemental bill, is, properly speaking, an original bill in the nature of a supplemental bill. See Ante, § 345. ' Cooper, Eq. PI. 74, 213, 214. ' Cooper, Eq. PL 214 ; Mitf. Eq. PL by Jeremy, 202, 203, 207 ; Osborne v. Baker, 2 Madd. 387; Baldwin v. Mackown, 3 Atk. 817; Stafford v. Hewlett, 1 Paige, R. 200 ; Colclough v. Evans, 4 Sim. R. 76. 'Ibid. EQ. PL. 44 618 EQUITY PLEADINGS. [CH. Xn. plemental bill, upon matter arising subsequent to the filing of the original bill, is brought against a person, who was not a party to the original bill, and who claims no interest arising out of the matters in litigation to it, the defendant to the supplemental bill may also demur ; especially, if the supplemental bill prays, that he may answer the matters charged in the original bill.^ So, if a supplemental bill is brought against a person not a party to ' the original bill, praying that he may answer the original bill, and no reason is assigned why he could not be made a party to the original bill by an amendment, he may demur.^ These, however, are grounds of demurrer, arising rather from the plaintiff's hav- ing mistaken his remedy, than from his being without one.^ § 615. Upon another, and a distinct ground, if new facts or events shall have arisen subsequently to the filing of the original bill, but those new matters are immaterial to the relief sought under the original bill, or are such as may come before the mas- ter under the proper decretal order in the original cause, a de- murrer will lie. For, if the new facts or events are not material, they are irrelevant ; and if material, and yet they are now prop- erly within the reach of the court, or before the master under the original cause, there is no ground why the record should be in- cumbered with superfluous matter.* § 616. Another distinct ground of demurrer is, that the bill is not properly supplemental ; but that it seeks to make a new and different case from the original bill, upon new matter ; for that, in a proper stage of the cause, might be the fit subject of an amend- ment ; or, at all events, of an' original bill.5 Therefore, if the purpose for which a supplemental bill is brought, is not properly supplemental to the matters already in litigation between the par- ties to the original bill, and in respect to which the relief is sought, a demurrei- will lie. Thus, where a bill was brought against the ' See preceding note 4. " Ibid. " Ibid. * Adams v. Dowding, 2 Madd. R. 55; Milner v. Harewood, 17 Ves. 144; Mitf. Eq. PI. by Jeremy, 63, note (o,) 202, note (g,) Hare on Discov. 158. ' Colclough V. Evans, 4 Sim. R. 76 ; Dias v. Merle, 4 Paige, R. 259. It is proper here to remark, that the case put in the text, is, where the matter is not properly supplemental. For, if the plaintiff, when his cause is in such a state that he cannot amend his bill, discovers new matter, which may leni to vary the relief prayed, or to show, that the plaintiff is entitled to the relief prayed, by the original bill, that is properly the subject of a supplemental bill. Ante, § 336, 337 ; Crompton v. Wombwell, 4 Sim. R. 628. §614-617.] DEMURRERS TO BILLS NOT ORIGINAL. 519 surviving executors, to have the testator's estate administered ac- cording to the trusts of the will ; and it impeached certain ac- counts settled between the defendants and a deceased co-execu- tor ; and the plaintiif, without making the representative of the de- ceased executor a party, went on to a hearing ; and a decree was made at the hearing, restricting the account to the receipts of the defendants, and directing, that the account settled with the deceased executor should not be disturbed ; and afterwards the plaintiff filed a bill^ purporting to be a supplemental bill, bring- ing before the court the representative of the deceased executor, and also the assignees of one of the surviving executors, who had become a bankrupt ; and praying, that the accounts and inquiries, directed by the former decree, might be prosecuted, and that an account might be taken of the receipts of the deceased executor ; upon a demurrer by the assignees, it was held, that the supple- mental bill was not sustainable ; because, although supplemental to the rest of the defendants, it was an original bill, so far as re- garded the representative of the deceased executor. There was nothing at all properly supplemental in its nature, or in aid of what had been already done by the court. But, on the contrary, the former decree of the court excluded this very account of the deceased executor.^ § 617. (2.) Demurrers to bills of revivor, and to bills in the nature of bills of revivor. If a bill of revivor, or a bill in the na- ture of a bill of revivor, does not show a sufficient ground for re- viving the suit, or any part of it, either by or against the person, by or against whom it is brought, the defendant may, by de- murrer, show cause against the revival.^ Indeed, although the defendant does not demur ; yet, if the plaintiff does not show a title to revive, he will take nothing by his suit at the hearing.^ A demurrer to a bill of revivor, or to a bill in the nature of a bill of revivor, ma^ be, (1.) either for want of privity, or, (2.) for want • Wilson V. Todd, 1 Mylne & Craig, 42. See also Colclough v. Evans, 4 Sim. R. 76. ' Mitf. Eq. PI. by Jeremy, 201, 202 ; Griffith v. Kicketts, 3 Hare, R. 476. ' Mitf. Eq. PI. by Jeremy, 202, 289, 290. In all cases where the defendant means to object to the bill of revivor, he ought to do so by demurrer; for, m many cases, if he does not object, but answers, it will be a waiver of the objec- tion, and amount to an admission, that it is a good bill of revivor. Nanny v. Totty, 11 Price, R. 117, 121. See 1 Mont Eq. PI. 324 ; Mitf. Eq. PI. by Jeremy, 289 ; Harris v. Pollard, 3 P. Will. 348 ; S. C. 2 Eq. Abridg. 2. 520 .EQUITY PLEADINGS. [CH. XII. of sufficient interest in the party seeking to revive, or (3.) for some imperfection in tlie frame of the bill.^ § 618. First ; for want of privity. We have already had occa- sion to consider, in what cases a bill of revivor, technically so called, may lie ; and it was then stated, that it is confined to cases of representation of the party deceased, by the mere ap- pointment and operation of law.^ Thus, the executor or admin- istrator alone is the party by or against whom a bill of revivor, technically so called, will lie as to matters touching' the person- alty of the deceased ; and by or against the heir at law of the deceased as to matters touching the realty .^ This is properly a privity by operation of law. On the other hand, there may be a privity of right and title under the deceased, by a transfer or conveyance of that right and title to a person, who is not in by' mere operation of law, and is not the personal or real represen- tative of the deceased. In such a case, a bill of revivor will not lie by or against such person ; but a bill in the nature of a bill of revivor will.* In each of these cases, if the appropriate bill is not brought by the party, seeking to revive, a demurrer will lie.® § 619. . Thus, if an administrator de bonis non should seek, by a pure bill of revivor, to revive a decree, obtained by a former ad- ministrator, a demurrer would lie ; for the administrator de bonis non comes not in, in privity with the former administrator, who obtained the decree ; but paramount to him, and purely as the representative of the intestate.^ So, if a bill of revivor should be filed by or against the assignees of a bankrupt or an insolvent, or the committee of a lunatic's estate, or a purchaser, or a devisee of the estate in question, a demurrer would lie for the want of the proper right of representation in such a bill.'^ Other example^, to which the same principles apply, have been already mentioned ; and they need not be here repeated.^ § 620. Secondly ; for want of interest. We have already seen, that, ordinarily, a bill of revivor will not lie for costs merely, un- less such costs have been taxed, and a report made in the lifetime ' Cooper, Eq. PI. 210. « Ante, § 364, 377. » Ibid. 379. * Ante, § 377-380. » Ibid. * Cooper, Eq. PI. 64, 76, 210, 211 ; Ante, § 382. ' Cooper, Eq. PL 211 ; Ante, § 377-386; Post, § 626. ' Ante, § 354, 364-386. §617-623.] DEMURRERS TO BILLS NOT ORIGINAL. 621 of the party, who is to pay them.i If, therefore, a bill of revivor should be brought in a case, where the suit is not according to the practice of the court entitled to be revived, it would be demur- rable.^ § 621. Ordinarily, also, a defendant is not entitled to a bill of revivor, unless, indeed, he has an interest in the further proceed- ings ; or he can derive a benefit from them ; as, for example, after a decree to account ; or after a verdict on an issue of legitimacy directed in the cause ; for, in such cases, the benefit of the revivor to him is manifest.^ But, where the proceedings have not gone to any decree, but merely to decretal orders, and the defendant has no other interest in the further prosecution of the suit, than mere- ly to dissolve an injunction obtained under an interlocutory order, and to proceed at law, a demurrer will lie ; and he has no interest ui the further proceedings ; for he has another remedy to put an end to the suit in equity, and to dissolve the injunction.* § 622. Thu-dly ; for some imperfection in the frame of the bill. Thus, if the proper parties are not made to the bill of revivor, it is demurrable.^ As, if there is a suit by tenants in common, and one of them' dies, the representative of the deceased tenant in common cannot exhibit a bill of revivor, without making the sur- viving tenant in common a party to the bill, either as a co-plain- tiff, or as a co-defendant.® § 623. So, upon a bill of discovery, if the defendant has an- swered, and the suit afterwards abates by his death, a bill of revivor will not lie ; for the object of the bill has been already obtained ; and the plaintiff has no further interest to revive it.'' ' Ante, § 371 ; Cooper, Eq. PI. 211, 212; Mitf. Eq. PI. by Jeremy, 202, and cases there cited. ' Ante, § 271 ; Cooper, Eq. PI. 211, 212; Mitf. Eq. PI. by Jeremy, 202, and cases there cited. ' Cooper, Eq. PI. 68, 69, 212; Williams v. Cooke, 10 Ves. 406; Horwood v. Schmedes, 12 Ves. 311 ; Ante, § 372. * Cooper, Eq. PI. 212; Horwood v. Schmedes, 12 Ves. 311, 316, 317. It seems, that the proper remedy would be by motion or petition, that the executors or administrators might revive the suit, or that the injunction might be dissolved. See Horwood v. Schmedes, 12 Ves. 315, 316. See Troward v. Bingham, 4 Sim. K. 483. = Fellowes v. WilUamson, 11 Ves. 306; Cooper, Eq. PI. 213; Ante, § 358. • Ibid. ' Gould V. Barnes, 1 Dick. 133 ; 1 Mont. Eq. PI. 309 ; 2 Mont. Eq. PI. 510, note (24). 44* 522 EQUITY PLEADINGS. [CH. XII. § 624. But a demurrer will not lie to a bill of revivor for want of a party, who was not before the court at the time of the abate- ment of the suit by the death of a person, who was then a party, although the suit might have been imperfect without such new party ; for it is not the office of a demurrer to a bill of revivor to correct such an imperfection ; but merely to put the cause in the same plight and condition, in which it was at the time- of the abatement.' § 625.' Upon the same ground of imperfection in the frame of the bill, if the material facts to support the revivor are not stated, the bill will be demurrable.^ Thus, if an executor, seeking to re- vive, should not state in his bill, that he has proved the will in the proper ecclesiastical court, or if a person, seeking to revive as ad- ministrator, should not state, that he has taken out administration, tlie bill would be demurrable.^ So the title to revive against the defendant is not shown by the mere statement that such defendant is the representative of a party who had answered the original bill.* § 626. A bill of revivor should also set forth so much of the original bill, as will show, that the plaintiff has a right to revive the suit, and that the defendants are the proper parties, against whom the revival is to be.^ Therefore, if it should appear, that the plaintiff is not the proper person to revive, or that the defendr ant is not the proper party, against whom it should be revived, because he is not in the chain of representation, a demurrer will lie.^ And if the statements in the biU of revivor do not show a ti- tle to revive, the plaintiff cannot on demurrer supply the defect by • Metcalfe v. Metcalfe, 1 Keen, R. 74. It seems that the proper bill would have been a bill of revivor and supplement. Metcalfe v. Metcalfe, 1 Keen, R. 80 ; Ante, § 387 ; Pendleton v. Fay, 3 Paige, R. 205. ' Cooper, Eq. PL 212 ; Phelps v. Sproule, 4 Sim. R. 318 ; Griffith v. Rickltts, 3 Hare, R. 476. ' Humphreys v. Ingledon, 1 P. Will. 753 ; S. C. 1 Dick. R. 38 ; Stone v. B^er, cited in note to 1 P. Willf 753 ; Cooper, Eq. PI. 212. * Griffith V. Ricketts, 3 Hare, R. 476. 5 Phelps V. Sproule, 4 Sim. R, 318; Ante, § 374, 386; Harrison u. Ridley, Com. R. 590 ; S. C. 2 Eq. Abridg. 2. ° Phelps V. Sproule, 4 Sim. R. 318. See also 2 Eq. Abridg. 2, pi. 5, in margin. Matters of scandal and impertinence are not generally subjects of demurrer ; but of reference to a master to ascertain the fact. Ante, § 206 ; Cooper, Eq. PI. 19 ; Mitf. Eq. PI. by Jeremy, 48; Gilb. For. Rom. 91. Gilbert, in his For. Rom. p. 209, 210, has made some remarks upon the proper frame of a bill of revivor, which may well be cited in this place. After having remarked, that impertinences are §624-627.] DEMURRERS TO BILLS NOT ORIGINAL. 523 reading the record of the original bill, although that record be re- ferred to in the bill of revivor.^ § 627.' (3.) Demurrers to bills in the nature of bills of revivor and supplement. Upon this part of the subject, little need be said, , since they are liable to objections of the same sort, as may be made ' to the kinds of original bills, of whose nature they partake.^ What has already been said on the subject in a preceding page, will be sufficient to show the proper frame and character of such bills ; and at the same time to point out the defects, for which a demur- rer will properly lie.^ where the records of the court are stuffed with long recitals, he adds : " As where a man brings a biU of revivor, grounded upon an original bill and proceedings, he needs to set forth no more thereof, and the best draftsmen in the age have in that case, gone no further than thus, viz. ; ' That your orator, in or about such a time, exhibited his original bill of complaint in this honorable court, to be relieved touching certain matters and things therein contained, as by the said bill, duly filed, and remaining of record in this honorable court, appears (and carry it no further) ; that the defendant on such a day put in his answer, as by the said an- swer remaining of record appears, that witnesses being examined, publication passed, and the cause being at issue, came on to be heard on such a day, when it was ordered and decreed, so and so.' And here are taken in the words of the ordering part of the decree, very shortly, and no more than what is material to the revivor ; and the register's recital of the bill and answer is wholly omitted, as being altogether foreign to the matter of the revivor. And if this should be in the bill of revivor it would be impertinent in the highest degree ; because, when a decree is enrolled, it is never done from the register's recitals, which are very often mistaken, and in no case regarded. For, notwithstanding these recitals, the bill and answer must always be read, if any dispute arises thereon. And it is from the original bill and answer upon record, that every decree is enrolled, and not from the register's recital in the decree, which in no case is regarded. Or, if this short method is not pursued by the drawer of the bill of revivor ; yet he must take care, that in the recital of the former proceedings, he does them in the shortest manner possible, (the shorter the better,) since they can be of no use to his client; for the records of the court are the same, whether truly or falsely recited, and from them alone the fact must be determined. But if they are set forth in hcBC verba, they are highly impertinent, and will be found so, and must be expunged with costs ; for all the defendant hath to do by answer to the bill of revivor is, only to set forth, that he believes there was such a suit, decree, and proceedings, and refer to the records." ' Griffith V. Ricketts, 3 Hare, R. 476. ' Mitf. Eq. PI. by Jeremy, 206 ; Cooper, Eq. PL 214, 215. If, after a de- murrer has been put in to a bUl, the suit becomes abated, the bill filed to revive it must be limited to that object. If it prays any further relief, a demurrer lies to the whole bill, and not to that part only which relates to such additional relief. Bampton v. Birchall, 1 Phillips, R*568. ' Ante, § 387. 524 EQUITY PLEADINGS. [CH. XH. § 628. (4.) Demurrers to cross bills. A cross bill having noth- ing in its nature different from an original bill, with respect to which demurrers in general have been already considered, except , that it is occasioned by a former bill, there seems to be no cause of demurrer to such a bill, which will not equally hold to an orig- inal bill.^ But thfe converse of this proposition is not universally true. Thus, for example, a demurrer for want of equity will not hold to a cross bill, filed by a defendant in a suit against the plain- tiff in the same suit, touching the same matter. For, being drawn into the court by the plaintiff in the original bill, he may avail himself of the assistance of the court, without being put to show a ground of equity to support its jurisdiction ; as a cross bill is gen- erally considered as a matter of defence.^ § 629. But wherever the cross bill seeks relief, it is indispensa- ble that it should be equitable relief, otherwise it will be demurra- ble ; for to this extent it is not a pure cross bill ; but it is in the nature of an original bill, seeking the further aid of the court, be- yond the purposes of defence to the original bill ; and under such circumstances, the relief should be such, as in point of jurisdiction the court is competent to administer.^ § 630. A cross bill, when it seeks relief, which is of an equita- ble nature, should also contain all the proper allegations, which confer an equitable title to such relief upon the party ; for, other- wise, it will be open to a demurrer.* Thus, if an original bill ' Ante, § 389-400, 466-544. " Mitf. Eq. PL by Jeremy, 203 ; Cooper, Eq. PI. 81, 215 ; Ante, § 398, 399 ; Doble V. Potman, Hard. R. 160 ; Burgess v. Wheate, 1 W. Black, 132; 1 Mont. Eq.Pl. 328; 2 Mont. Eq. PL 561, note (69). Even a cross bill for equitable relief would not seem to be in all cases maintainable. Thus, in Hilton v. Bar- row,*! Ves. jr. 284, where a bill was filed by the vendor against the vendee, for the specific performance of a contract for the purchase of real estate ; and the vendee, by his answer, insisted, that the vendor could not make a good title ; and also filed a cross bill for the delivering up of the contract ; it was held by Lord Loughborough, that the cross bill, insisting solely upon the ground of a want of title in the vendor, and not upon any fraud, was not entitled to maintain such a cross bill ; for if there was no title in the vendor, he' could never enforce the con- tract at law. But it may admit of question, whether, notwithstanding, the vendee was not entitled to the relief, since he might be harrassed with subsequent suits at law on the contract. See 2 Story on Eq. Jurisp. § 694; Mitf. Eq. PI. by Jeremy, 81, note {y). » Ante, § 398 ; Cooper, Eq. PL 86, 215 ; Calverley v. Williams, 1 Ves. jr. 213. * Mason w. Gardiner, 4 Bro. Ch. R. 436 ;^ Cooper, Eq. PL 215; Benfield v. Solomons, 9 Yes 84 ; 1 Mont. Eq. PL 328. §628-633.] DEMUEEERS TO BILLS NOT ORIGINAL. 525 should be brought to enforce a security ; and the defendant should file a cross bill to have the security given up, upon the ground that it is an usurious security ; if the cross bill should not contain an oflFer to pay the sum really due, a demurrer would be allowed.^ § 631. A cross bill being, as has been already said, a matter of defence, is confined to the matters in litigation in the original suit. And, therefore, if it seeks to bring before the court other distinct matters and rights, it is no longer entitled to be deemed a cross bill, but is an original suit. Without such a restriction, new mat- ters might be introduced into litigation by cross suits, without end.^ If, therefore, such a bill should be filed, affecting to be a mere cross bill, but containing other distinct and independent matters, it would seem to be open to a demurrer for this cause. And, at all events, no decree, founded on such matters, would be made upon the hearing of the original cause.^ § 632. A cross bill also will be open to a demurrer, if it is filed contrary to the practice of the court, and under circumstances in which a pure cross bill is not allowed.* Thus, for example, if it is filed after the publication of the testimony in the original suit, and it seeks to take new testimony to the matters already in issue in the original suit ; or if it does not in such a case contain an agree- ment on the part of the defendant, filing the bill, to go to a hear- ing upon the depositions and proofs already published ; ^ or if it seeks to bring into question facts, which the party has admitted in his answer to the original bill, it will be demurrable.^ § 633. A cross bill, which is filed by the special direction of the court, for the purpose of obtaining its decree, touching some mat- ter not in issue by a former bill, or not in issue between the proper parties, does not seem liable to any peculiar cause of demurrer. Indeed, being exhibited by order of the court, upon the hearing of another cause, there is little probability that such a bill should be liable in substancd to any demurrer.^ ' Mason v. Gardiner, 4 Bro. Ch. R. 436 ; Cooper, Eq. PL 215 ; Benfield u. Solo- mons, 9 Ves. 84 ; 1 Mont. Eq. PL 328. " Galatian v. Erwin, Hopk. E. 48, 59 ; S. C. 8 Cowen, E. 561. ' Ibid. ' Cooper, Eq. PL ' Ante, § 395, and note; Cooper, Eq. PL 87; White v. Buloid, 2 Paige, E. 164; Field v. Schieffefin, 7 John. Ch. E. 250. ' Berkley v. Eyder, 2 Ves. 533, 637. ' Mitf. Eq. PL by Jeremy, 203 ; Ante, § 396. 526 • EQUITY PLEADINGS. [CH. XII. § 634. Fifthly ; demurrers to bills of review, and to bills in the nature of bills of review. The constant defence to a bill of review for error apparent upon a decree, has been said to be by a plea of the decree, and demurrer against opening the enrolment.^ There seems, however, to be no necessity for pleading the decree, if it is fairly stated in the bill. The books of practice contain the forms of a demurrer only to such a bill ; and there are authorities to the same effect.^ § 634 a. A bill of review must be founded, as we have already seen, upon some error upon the face of the bill, answer, and plead- ings in the case, and the facts embodied in the decree, upon which th6 court founds it. The party, who brings a writ of review, can- not go into the evidence at large, not stated in the decree, to found an objection to the decree from a supposed mistake of the court in its inferences from the evidence.^ Neither can a party to a decree bring a bill of review, and claim a reversal of the decree, for a supposed error, unless he is aggrieved thereby, whatever might have been his right to insist upon the error at the original hearing, or upon an appeal.* The bill also must be brought after a final decree upon the merits of the controversy, and does>not lie upon a merely interlocutory decree.^ If, therefore, the bill of review be defective in relating these particulars, and the objection be appar- ent on the record, it is demurrable.® ' Gould V. Tancred, 2 Atk. 534 ; Mitf. Eq. PI. by Jeremy, 203 ; Cooper, Eq. PI. 215 ; Dancer v. Evett, 1 Vern. 392, 393 ; Smith v. Turner, 1 Vem. 273 ; O'Brien v. Connor, 2 Ball. & Beatt. 146 ; "Webb v. Pell, 3 Paige, R. 368. " Mitf. Eq. PI. by Jeremy, 203, 204, and note (a;) ; Cooper, Eq. PI. 215, 216 ; Slingby v. Hale, 1 Ch. Cas. 1-22 ; Jones v. Kenrick,' 5 Bro. Pari. R. 248, Tom- lin's edit. ; 1 Harris, Ch. Pr. by Newl. 88 ; Barton's Suit in Eq. 218. Lord Redesdale has added, in this connection, the following passage : — " On argu- ment of a demurrer to a bill of review, where several errors in the decree have been assigned, if the plaintiff should prevail only in one, tlje demurrer must be overruled, as one error will be suflScient to open the enrolment ; and, on argu- ment of a demurrer to a bill of review for error apparent in the decree, the court has ordered the defendant to answer, saving the benefit of the demurrer to the hearing, and on the hearing, has finally allowed the demurrer." Mitf. Eq. PI. by Jeremy, 204. The case referred to is Denny v. Filmer, 2 Freem. 172 ; S. C. 1 Vern. 135. " Whiting V. Bank of United States, 13 Peters, R. 6, 13, 14; Ante, § 404, 405, 407. * Whiting V. Bank of United States, 13 Peters, R. 6, 14. ' Ibid. • Ibid. §634-637.] DEMURRERS TO BILLS NOT ORIGINAL. 52T § 635. It has been already stated, that a bill of review for errors apparent upon the record, must be brought within the time pre- scribed for the bringing of 'writs of error; for it is governed by analogy to the limitation of writs of error at law.^ And this lim- itation is to be counted, not from the time of the enrolment of the decree, but from the time of pronouncing it.^ It has been said, that this objection must be taken by plea -to the bill of review even if it is apparent upon the face of the bill, that it is brought after the prescribed period ; for that, otherwise, the plaintiff would not be enabled to avail himself of the exceptions, provided in the stat- ute for cases of disability, such as infancy, coverture, or the like.^ But there is great reason to doubt the propriety of this doctrine ; and the more reasonable doctrine is, that a demurrer will lie in such a case ; and, if such an exception exists, it is the duty of the plaintiff to set it forth in his bill of review, in order to repel the objection.* § 636. A bill of review, upon the discovery of new matter, and a supplemental bill of the same nature, being exhibited only by leave of the court, the ground of the bill is generally well consid- ered, before it is brought ; and, therefore, in point of substance, it can rarely be liable to a demurrer. But if it is brought upon new matter, and the defendant should think that matter not relevant, probably he might take advantage of it by way of demurrer ; al- though the relevancy ought to be considered at the time, when leave is given to bring the bill.^ § 687. Bills in the nature of bills of review, do not appear sub- ' Ante, § 410 ; Cooper, Eq. PI. 91 - 93, 216. » Smith V. Clay, 3 Bro. Ch. R. 639, note by Belt ; S. C. Ambl. R. 645 ; Ante, §410. ' Cooper, Eq. PI. 216 ; Mitf. Eq. PI. by Jeremy, 204, 205 ; Gregor v. Moles- worth, 2 Ves. 109. • Mitf. Eq. PI. by Jeremy, 204, 205, note (a) ; Edwards v. Carroll, 2 Bro. Pari R. by Tomlins, 98 ; Sherrington v. Smith, 2 Bro. Pari. R. by Tomlins, 62. This last is manifestly the opinion of Lord Redesdale, in Mitf Eq. PI. by Jeremy, 204, and it is also confirmed by the note cited in p. 205, note (a). It is also sustained by the analogy in the like cases of original bills, in which it is held, that if the objection from lapse of time, prescribed by the statute of limi- tations, appears on the face of the bill, it may be taken by demurrer. Ibid. ; Ante, § 484, 503, note. See also, Cook v. Arnham, 3 P. Will. 284, Mr. Cox's note (B) ; Foster v. Hodgson, 19 Vea. 180 ; Mitf Eq. PI. by Jeremy, 212, note (c), 271, 272. ' Mitf Eq. PI. by Jeremy, 205 ; Cooper, Eq. PI. 216. 528 EQUITY PLEADINGS. [CH. XH. ject to any peculiar cause of demurrer, unless the decree sought to be reversed, does not affect the interest of the person filing the bill. If, upon argument of a demurrer to. a bill of review, the demurrer is allowed, the order, allowing it, being enrolled, is an effectual bar to another bill of review.^ The same principle would seem to apply to a bill in the nature of a bill of review. § 6.38. It is also a good cause of demurrer to a bill of either sort, that it is not brought according to the course of the court, or that it does not, in its form and structure, appropriately belong to either. Therefore, where, after a decree directing iucumbrances to be paid according to priority, the plaintiff, a creditor, obtained an assignment of an old mortgage, and filed a bill to have the advantage which it would give him by way of priority over the demands of some of the defendants, a demurrer was allowed ; be- cause such bill was against the usual course of the court. For, although it was a bill to vary a decree, yet it was neither a bill of review, nor a bill in the nature of a bill of review, which are the only kinds of bills that can be brought to affect or alter a decree, unless the decree has been obtained by fraud.^ § 639. Sixthly ; bills to impeach decrees for fraud. If a bill is filed for this object, and the circumstances stated in the bill do not amount to a fraud ; or if it is alleged, that the decree was ob- tained without making parties to the suit those, whose rights are affected thereby ; and it is therefore fraudulent ; and it appears on the bill, that sufficient parties were before the court to bind all other persons interested, such as a first tenant in tail, o$ the like ; in such a case the defendant may demur.^ § 640. Seventhly ; demurrers to bills to suspend, or to avoid, the operation of decrees. These bills are of very rare occurrence ; and, indeed, the only instance, cited by Lord Redesdale, to illus- trate this class, is one, which may be thought open to much re- » Mitf. Eq. PI. by Jeremy, 205, 206. ' Cooper, Eq. PI. 217 ; Wortley v. Birkhead, 3 Atk. 809, 811 ; S. C. 2 Ves; 571, 576 ; Read v. Hawley, 1 Ch. Cas. 44 ; Mitf. Eq. PI. by Jeremy, 206. The case of Cocker v. Bevis, 1 Ch. Cas. 61, which has been already alluded to, Ante, § 427, note, seems to fall under this predicament. It is given by Lord Redesdale, as an instance of an interference of a court of equity in suspending or avoiding the operation of a decree under special circumstances, and was sustained on its own circumstances. See Mitf. Eq. PI. by Jeremy, 94 and note (f). 2 Cooper, Eq. PI. 217, 218; Ante, § 426-429. §637-641.] DEMURRERS TO BILLS NOT ORIGINAL. 529 mark, if not of questionable authority .1 But, as it is admitted, that this whole class of cases depends on special circumstances of a very peculiar nature, it seems impracticable to lay down any rules, as to demurrers to* them. § 641. Eightly ; demurrers to bills to carry decrees into exe- cution. Bills of this sort are open to few peculiar causes of de- murrer. Where, upon the face of a bill to carry a decree into execution, the plaintiff appears to have no right to the benefit of the decree, the defendant may avail himself of the objection by demurrer.2 Where a decree is clearly erroneous, it is not a mat- ter of course for the court to enforce it.^ But, on the contrary, the court will, in many cases, refuse to enforce it, if it would be prejudicial to the rights and interests of third persons, who ought to have been made, but were not made parties to the original de- cree. For the party, who comes into a court of equity to have the benefit of a former decree, is bound to show, that, upon its face, it was a right decree ; and, if it be palpably erroneous, it ought not to be carried into execution.* ^ Mitf. Eq. PI. by Jeremy, 94 ; S. C. cited Ante, § 421, note, and § G36, note; Cockers;. Bevis, 1 Ch. Cas. 61. See also Venables v. Foyle, 1 Ch. Cas. 2, 3; Whorwood v. Whorwood, Cli. Cas. 250 ; Wakelin v. Walthal, 2 Ch. Cas. 8. The note of Lord Redesdale, as to this class of cases, contains a very salutary caution, as to the nature of the relief granted by the court, as having been somewhat affected by the turbulent and extraordinary character of the times. Mitf Eq. PI. by Jeremy, 94, note (i) ; Ante, § 428 a. ' Mitf Eq. PI. by Jeremy, 206 ; Cooper, Eq. PL 218. ' Ante, § 430. * Ante, § 430 ; Mitf Eq. PI. by Jeremy, 95, 96 ; Cooper, Eq. PI. 99 ; Hamilton V. Houghton, 2 Bligh, R. 169. The case of Hamilton v. Houghton, 2 Bligh, K. 169, affords a strong illustration of the -principles stated. There, a bill was originally filed by one creditor to obtain payment out of a trust fund, created under an as- signment for the payment of debts generally, without making the other creditors parties ; and a decree was had accordingly. On a bill to enforce this decree, brought by persons claiming under the same creditor, the House of Lords held the decree palpably erroneous, among other things, for not decreeing a general execution of the trust in favor of all the creditors, and making them all parties to the bill, or bringing them all before the court in the proceedings before the master; and they refused to carry it into effect, notwithstanding the lapse of forty years after the decree. It was also held, that, upon a bill to carry into effect a decree, the court might examine, impeach, or vary the decree. The House of Lords, however, in this case, gave the plaintiff liberty to amend his bill, and to introduce the other parties in interest, and to shape the bill for the proper purposes. EQ. PL. / 45 530 EQUITY PLEADINGS. [CH. Xn. ^ 642. We have thus gone over the general grounds^ as well as the peculiar grounds of demurrer applicable to the different kinds of bills^ original, and not original. We may conclude this subject with the suggestion, which has", indeed, already occurred, iucidentallyi under some of the preceding heads, but seems proper to be here repeated in a more general form, that, in addition to the several particular causes of demurrer, applicable to particular kinds of bills, any irregularity in the frame of a bill, of any sort, may be taken advantage of by demurrer.^ A few illustrations of this may, perhaps, be appropriate in this place, although some of them have already been stated.^ § 643. Thus, for example, if a bill is brought contrary to the usual course of the court, a demurrer will hold.^ As, where, after a decreei, directing incumbrances to be paid according to their priority, the plaintiff, a creditor, obtained an assignment of an old mortgage, and filed a bill to have the advantage it would give him by way of priority over the demands of some of the de- fendants, a demurrer was allowed.* This was a bill to vary a decree ; and yet it was neither a bill of review, nor a bill in the nature of a bill of review ; which are the only kinds of bills, which can be brought to affect or alter a decree, unless the decree has been obtained by fraud.^ § 644. So, where a bill was preferred to establish the plain- tiff's right of common, and to set aside several former decrees, the defendant demurred to the whole bill, and the demurrer was allowed ; for if there were any errors in the former decrees, they ought to have been brought before the court by a bill of review, and not by this method.^ So, where a decree was passed, settling the rights of the parties upon all the points raised in the cause ; and, afterwards, an original bill was brought to supply some omis- sions in the original decree ; it was deemed a valid objection, that it was contrary to the practice of the Qourt to allow such an orig- inal bill upon the same matter, as was put in issue in the original ' Mitf. Eq. PL by Jeremy, 206, 207. " Ante, § 528, note. ' Ibid. * Mitf. Eq. PI. by Jeremy, 206, 207 ; Ante, § 638 ; "Wortley v. Birkhead, 3 Atk. 809, 811 ; Fletcher v. Toilet, 5 Ves. 3. = Ibid. ° Granville v. Ramsden, Bunb. R. 66 ; Darlington v. Pulteney, 3 Ves. 384, 386. §€42-646.] DEMURRERS TO BILLS NOT ORIGINAL. 531 cause, even supposing, that a direction, which ought to have been given at that time, was omitted.^ § 645. So, where a bill was brought, seeking a decree, incon- sistent with a former decree, which had been rendered on the same matters between the parties ; it was held, that the former decree could not be thus impeached collaterally, but only upon a bill of review, or a bill to set it aside for fraud.^ And if the objection appeared on the face of the new bill, it would be demur- rable. § 646. Upon a similar ground, if a supplemental bill is brought against a person, not a party to the original bill, praying, that he may answer the original bill ; and no reason is suggested, why he could not be made a party to the original bill by amendment ; he may demur .^ If an irregularity arises in any alteration of a bill by way of amendment, it may- also be taken advantage of by de- murrer. As, if a plaintiff amends his bill, and states a matter, arisen subsequent to the filing of the bill, which consequently ought to be the subject of a supplemental bill, or a bill of revi- vor. But if a matter, arisen subsequent to the filing of the bill, and properly the subject of a supplemental bill, is stated by amend- ment, and the defendant answers the amended bill, it is too late to object to the irregularity at the hearing. For, as the practice of introducing, by supplemental bill, matter arisen subsequent to the institution of a suit, has been established merely to preserve order in the pleadings, the reason, on which it is founded ceases, when all the proceedings to obtain the judgment of the court have been had without any inconvenience arising from the irreg- ularity.* ' Darlington v. Pulteney, 3 Ves. 384, 386. ' Ogilvie V. Heme, 13 Ves. 563. ' Ante, § 614. ♦ Mitf. Ex. PI. by Jeremy, 207, and cases there cited; Ante, § 528, note. 532 EQUITY PLEADINGS. [CH. XHI. CHAPTER XIII. PLEAS. [* 5 647. Defences by way of plea. § 648. Statement of the subject. § 649. Definition of plea in equity. § 650. Resembles the exception of the civil law. § 651." Pleas are either negative or affirmative. § 652. Must reduce defence to single point. § 652 a. Illustrations under this head. ^ 653. Must not be double. § 654. Facts must all tend to one defence. § 655, 656. Improper pleas to bills of discovery, &c. § 657^ Two pleas not allowed, except in special cases. 5 658. Frame and form of pleas in equity. § 659. Must state what portion of the bill it professes to answer. 4 660. Must state new matter, or deny facts of bill. §661. Must be issuable and material. § 662. Also distinct and positive, and not argumentative. § 663. Must state facts in detail, and not mere conclusions. § 664. How far facts may be stated on information and belief. § 665. Must state facts fully and negative intendments. § 666. Illustration of the point. § 667. Distinction between pure and anomalous pleas. § 668. Now settled that plea in equity may be merely negative. § 669. Exposition of the reasons of the rule. § 670. This latter species of plea requires support of answer. § 671, 672, 673. Reasons why answer should accompany plea. § 674. Office of the answer in such cases explained. § 675. Answer must negative special equities. § 676. Bills set forth all the facts of the case more fully than formerly. § 677. This practice was based upon the civil law. § 678. The change made an answer necessary to aid the plea. ^ 679. Statement of points to be discussed. § 680. Plea must negative all material facts. § 681. In what cases and in what form answer is required. § 681 a. Answer required to meet facts inconsistent with plea. § 682. Answer not required unless discovery claimed. § 683. But is, when any material facts are charged to be exclusively in defendants . knowledge. I) 684. Form of plea and answer. § 685. Illustrations under this head. § 686. Plea should not cover ground of discovery. § 687. Illustration of this point. § 688. Answer must not cover ground of plea. § 689. Must not except to answer, till plea disposed of. § 690. Answer to amended bill consistent with original answer. § 647.] PLEAS. • 533 i 691. Mode of calling out fuller answer, &<;. § 691 a. Cannot plead to and answer same portions of bill. § 691 5. Same point further discussed. § 692. Plea may be bad in part and good in part. § 693. How far plea may be affected by answer. § 694. Form of a plea in equity, § 695. Form of answer accompanying bill. 5 696. How far pleas upon oath. § 697. Proper mode of answering plea. § 698. Effect of reserving plea till hearing. § 699. Ordering plea to stand for an answer. § 700. Mode of disposing of pleas as to facts. §701. Leave to amend plea on short time.] § 647. We shall now proceed to the consideration of the mode of defence by plea in equity. When the objection is not apparent on the bill itself,^ or, as the technical phrase is, when it arises from matter dehors the bill, if the defendant means to take advantage of it, he ought to show the matter, which creates the objectian, to the court, either by plea, or by answer .^ In some cases, the ob- jection can be taken only by plea; in others, again, it may be taken by plea, or by answer; and in others, again, it can be taken only by answer.^ In short, the defendant may demur to one part of the ' Billing V. Flight, 1 Madd. E. 230 ; Cozine v. Graham, 2 Paige, R. 177. ' Mitf. Eq. Pi. by Jeremy, 219 ; Id. 13, 14 ; Beames, PI. in Eq. 2. ' Ante, § 439. Some cases, exhibiting this diversity, have been already inci- dentally stated. Many objections to the form and frame of a bill can be taken only by demurrer. Mr. Cooper says : " That in most cases, what is a good de- fence by way of plea, is held to be also good by way of demurrer, if the matter sufficiently appears on the face of the bill, although the rules of pleading, in Lord Hardwicke's time, required, that many grounds of defence should be taken advantage of by way of plea only." See also Mitf. Eq. PI. by Jeremy, 216; Aggas V. Pickerill, 3 Atk. 226. If a plaintiff in a bill of revivor is not entitled to revive, the defendant must, in general, take the objection by demurrer, or by plea. K he does not, he cannot take it by answer, although if, at the hearing, it aj^ears,- that the plaintiff has no title to revive, the bill will be dismissed. Har- ris V. Pollard, 3 P. Will. 348 ; Cooper, Eq. PI. 302. Lord Chief Baron Gilbert, in his For. Eom. 53, has given another illustration. " The second sort of demur- rer," says he, " is, where a plaintiff goes into a court of equity for damages, which are uncertain, and not to be settled but by a jury ; there, the defendant may de- mur to the relief, after having first answered to the damages, because it is alieni fori, since the court cannot settle the damages. But this must be ante Ms contes- iationem; for if he answers, and contests with the plaintiff, that he can take no advantage of it at the hearing ; for he has submitted to the jurisdiction of the court, and the court will try at law the quantum of the damages, by a feigned action of quantum damnificatus. So on the demurrer ante litis contestationem, if the plaintiff will go on for the damages confessed, the court will retain the bill, 45* 534 EQUITY PLEADINGS. [CH. XHI. bill, plead to another, answer to another, and disclaim as to an- other, if the nature of his case requires it in the same manner as he may demur, or plead, or answer to the whole bill, if his defence equally applies to all parts thereof.^ § 648. We shall first proceed to make some observations upon the true nature, office, and frame of a plea ; and in the next place, to state the cases, in which this is an appropriate mode of defence ; or, in other words, what objections may be taken, and usually are taken, by way of plea. § 649. A plea has been usually described to be a special an- swer, showing, or relying upon one or more things, as a cause, why the suit should be either dismissed, or delayed, or barred.^ Lord Bacon, in his Ordinances, has said, that a plea is of foreign matter, to discharge, or stay the suit.^ Lord Redesdale has also judicially said, that a plea is a special answer to a bill, differing in this Trom an answer in the common form, as it demands the judg- ment of the court in the first instance, whether the special matter, urged for it, does not debar the plaintiff from his title to that an- swer, which the bill requires.* § 650. In this view, a plea bears a very close resemblance to an exception in the Civil Law ; which has been described thus ; Ex- ceptio dicta est, quasi qucedam exclusio, qua (inter) opponi actioni cujusque rei solet ad excludendum id, quod in intentionem condem- naiionemve deductum est.^ § 651. All these statements are sufficiently descriptive of the general nature and office of a plea. But that of Lord Bacon is far from being accurate, according to the present doctrine on this sub- ject ; for it is by no means true, that pleas are confined to foreign quoad those damages, allowing the demurrer as to any further relief." See also Gilb, For. Rom. 219. See Beames, PI. in Eq. 7, 8 ; Rowe v. Teed, 15 Ves. 377, 378. If a matter, which has arisen subsequent to filing of a bill, and which ought to be the subject of a supplemental bill, or a bill of revivor, is introduced by way of amendment, it cannot be taken advantage of by answer ; but only by demurrer. Mitf Eq. PI. by Jeremy, 116 ; Ante, § 628, note. > Mitf. Eq. PI. by Jeremy, 319. ^ Mitf. Eq. PI. by Jeremy, 219 ; Cooper, Eq. PI. 223 ; Wyatt, Pr. Keg. 324; Curs. Cancell. 180 ; Harris. Ch. Pr. by Newl. 218. * Beam. Ord. in Chan. 26 ; Beam. PI. in Eq. 1. * Roche V. Morgell, 2 Sch. & Lefr. 725 ; Beam. PL in Eq. 1. Throughout this whole chapter, I have freely used the materials collected in Mr. Beames's excel- lent work on Pleas in Equity. ' Dig. Lib. 44, tit. 1, 1. 2 ; Beam. PI. in Eq. PI. 2 ; Gilb. For. Rom. 50. §647-651.] PLEAS. 535 matter dehors the bill, to discharge or stay the suit. On the con- trary, pleas are now usually divided into two sorts ; one common- ly called pure pleas, which rely wholly on matters dehors the bill, such as a release, or a settled account ; and another, called, in contradistinction to the other, pleas not pure, or anomalous pleas, and sometimes, negative pleas, which consist mainly of denials of the substantial matters set forth in the bill.i Thus, for example, if a bill should admit a release to have been made by the plaintiff, or an account to have been settled, and should aver, that either was procured by fraud ; the defendant may plead the release, or account settled, in bar, negativing in his plea the averment of fraud, and supporting the plea by an answer, denying all the facts and circumstances, charged as matters of fraud in the bill.2 This subject will come more fully under consideration, in other connec- tions in the subsequent pages.^ ' Post, § 667. » Beam. PI. in Eq. 2-7; Mitf. Eq. PL by Jeremy, 239-243; Bayley v. Adams, 6 Ves. 594, 595 ; Lord Kedesdale has alluded to this subject in the following pas- sage. (Mitf. Eq. PI. by Jeremy, 221.) " Pleas in bar are commonly described as allegations of foreign matter, whereby, supposing the bill, so far as it is not contradicted by the plea, to be true, yet the suit, or the part of it, to which the plea extends, is barred. But this description, perhaps, does not comprise every kind of plea, or does not mark the distinctions between the different kinds with sufficient accuracy." Lord Kedesdale has fully explained the origin of this second species of plea, in a note to his work on Equity Pleading, where he is treating of the subject of fraud, alleged in a bill to set aside a decree. Mitf. Eq. PI. by Jeremy, 243, note («). This subject will be examined more fully hereafter. Mr. Beames too has discussed, at large, the propriety of allowing these pleas, and stated the reasons, on which they are founded, and the practice has been allowed. Beames, PI. in Eq. 2-7. Indeed, as long ago as the time of Lord Talbot, a plea of this sort was pleaded, and an objection taken to it on the ground, non potest adduci exceptio ejusdem rei, cujus petitur dissolulio. But the Lord Chancellor said, that it was every day's practice ; and that otherwise, no release or award could be pleaded to a bill, which was brought to set aside the same. Pusey v. Desbouvrie, 3 P. Will. 317. See also Bayley v. Adams, 6 Ves. 594, 595. The question, whether a mere negative plea, denying the title of the party, as alleged in the bill, (such, for example, as that he was h6ir,) was formerly matter of considerable doubt, and diversity of judgment. But it is now well settled, (as will be shown hereafter,) that such pleas are good. Faulder v. Stuart, 1 1 Ves. 302 ; Shaw v. Ching, 11 Ves. 305 ; Drew v. Drew, 2 Ves. & B. 159, 163; Sanders v. King, 6 Madd. K. 61; S. C. 2 Sim. & Stu. 276 ; Thring v. Edgar, 2 Sim. & Stu. 274. See Mitf. Eq. PI. by Jeremy, 230-233, and notes ibid.; Id. 244, 245, and note (jr) ; Hardman v. EUames, 2 Mylne & Keen, 740 ; Hall v. Noyes, 3 Bro. Ch. R. 483; 2 Daniell, Ch. Pr. 99, 100, 110, 111. ' Post, §667-680. 536 EQUITY PLEADIHGS. [CH. XIII. § 652. But every defence, which may be a full answer to' the merits of the bill, is not, as of course, to be considered as entitled to be brought forward by way of plea. It has been well observed by Lord Hardwicke, that it is not every good defence in equity, that is likewise good as a plea. For, where the defence consists of a variety of circumstances, there is no use in a plea ; the exami- nation must still be at large ; and the effect of allowing such a plea will be, that the court will give their judgment upon the cir- cumstances of the case, before they are made out by proof. ^ The true end of a plea is to save to the parties the expense of an exami- nation of the witnesses at large. And the defence, proper for a plea, is such, as reduces the cause, or some part of it, to a single point ; and from thence creates a bar or other obstruction to the suit, or to the point, to which the plea applies.^ Hence, a plea, in • Chapman v. Turner, 1 Atk. 54; Mitf. Eq. PL by Jeremy, 219; Cooper, Eq. PL 223 ; 2 Daniell, Ch. Pr. 97, 99, 102', 103 ; Post, § 633. 2 Mitf. Eq. PL by Jeremy, 295-297 ; Cooper, Eq. PL 223 ; Chapman v. Turner, 1 Atk. 54; Ritchie v. Aylwin, 15 Ves. 82; Kowe v. Teed, 15 Ves. 378; Whit- bread V. Brockhurst, 1 Bro. Ch. K. 404 and note (1), and 405, note (c/), by Belt; S. C. 2 Ves. & B. 153, note; Wood v. Eowe, 2 Bligh, R. 595, 614. In Rowe v. Teed, 15 Ves. 377, 378, Lord Eldon, in speaking of the case, where matter was brought forward by the answer, for the same purpose as a plea, said : " The office of a plea, generally, is, not to deny the equity, but to bring forward a fact, which, if true, displaces it ; not a single averment, as the averment in this answer, that no bill of sale was executed, but perhaps a series of circumstances, forming in their combined result some one fact, which displaces the equity. There is this difference between law and equity : that here, for the sake of convenience, that is, of justice, the denial of some fact alleged by the bill, in some instances, with certain averments, has been considered sufficient to constitute a good plea ; although not perhaps precisely within the definition of good pleading at law. If each case is to be considered upon its own circumstances, it is desirable, that this point should be brought before the court by plea, rather than by answer ; as an ajiswer prima facie admits, that the defendant cannot plead ; and, with the excep- tion of the cases, in which it is settled as general law, that the party is not to answer a particular circumstance, as, that he is not to criminate himself, the case of a purchaser for valuable consideration, &c., this court does not trust the mas- ter, generally, with the determination how much of the answer, considered as a plea, would be a good defence. The master is, therefore, almost under a neces- sity of admitting an exception. And, when the propriety of his judgment comes to be argued here, it would be most incongruous, that the court, admitting his judgment not to be wrong, should yet give a different judgment ; considering the answer as a plea. Another circumstance, deserving attention, is the great differ- ence of expense in bringing forward the objection by plea, rather than by answer. There is but one more material general observation to be added to those which are § 652, 652 a.] pleas. 537 order to be good, whether it be affirmative or negative, must be either an allegation or a denial of some leading fact, or of matters, which, taken collectively, make out some general fact, which is a complete defence.^ But, although a defence, offered by way of plea, should consist of a great variety of circumstances ; yet, if they all tend to a single point, the plea may be good.^ Thus, a plea of title, derived from the person under whom the plaintiff claims, may be a good plea, although consisting of a great variety of circumstances ; for the title is a single point, to which the cause is reduced by the plea.^ So, a plea of conveyance, fine, and non- claim would be good, as amounting to but one title.* [So, a plea to an ejectment bill, that the defendant was seised in fee, and that there were no outstanding terms, no mortgages, or incumbrances, and no unexpired leases, is good.^] [* § 652 a. But pleas in equity must cover effectually all which they profess to answer, whether it be the whole or only a part of the bill. And where a defendant, to avoid putting in an account, pleads to all the relief and some of the discovery sought, if the plaintiff may be entitled to some of the relief which the plea does not specifically meet, it covers too much, and will simply be over- ruled.^ It is competent to plead to a bill, claiming as coheiress to to be found in the cases reported ; that, generally, admitting there are exceptions, the practice of this court requires, that the bill and the answer should form a record upon which a complete decree may be made at the hearing. If, for instance, this plaintiflF is a part-owner of the ship, he has a right to an answer, that will enable him, if a certain sum is admitted to be due, to obtain a decree for that sum if he is satisfied with that, and does not desire an account. With that general obser- vation, in addition to those to be found in the other cases, I conclude, that this is not a case, in which I can say, there is one clear fact, or such a combination of facts, giving, as the result, one clear ground, upon which the whole equity of this bill may be disposed of. First, it is very difficult upon this answer to say, there is a positive affirmation, that there was no bill of sale. Next, it is argumen- tative." ' Robertson v. Lubbock, 4 Sim. R. 161 ; Saltus v. Tobias, 7 John. Ch. R. 214 ; Beam. PI. in Eq. 10 - 14 ; 2 Daniell, Ch. Pr. 102 - 104. * Mitf. Eq. PI. by Jeremy, 296 ; Cooper, Eq. PI. 225 ; 2 Daniell, Ch. Pr. 103, 104. ' Mitf. Eq. PI. by Jeremy, 296, 297 ; Cooper, Eq. PI. 225 ; Whitbread v. Brock- hurst, 1 Bro. Ch. R. 404, 415, note (9), by Belt ; S. C. 2 Ves. & B. 153, note ; Ritchie V. Aylwin, 15 Ves. 82 ; Beam. PI. in Eq. 18. * Cooper, Eq. PI. 225 ; Beam. PI. in Eq. 18. ' Dawson v. Pilling, 16 Simons, 203. [* • Hewitt V. Hewitt, 8 Law T. N. S. 630. 538 EQUITY PLEADINGS. [CH. XIII. ber deceased father, that the intestate was not seised or possessed of any real estate whatever, at the time of his decease, as alleged in the bill, without accompanying such plea with any answer.^] § 653. Upon this account, it is a general rule that a plea ought not to contain morp defences than one, and that a douhle plea is informal and multifarious, and therefore improper .^ For, if two matters of defence may be thus offered, the same reason will jus- tify the making of any number of defences in the same way ] by which the ends intended by a plea would not be obtained ; and the court would be compelled to give instant judgment upon a variety of defences, with all their circumstances, as alleged by the plea, before they are made out in proof; and, consequently, would de- cide upon a complicated case, which might not exist.^ Therefore, where, to a bill, praying a conveyance of four estates, the defend- ant put in a plea of a fine as to one estate ; and in the same plea, • Postgate V. Barnes, 9 Jur. N. S. 456.] ' See 2 Daniell, Ch. Pr. 102, 104 ; The State of Rhode Island v. The State ot Massachusetts, 14 Peters, E. 210, 259. ' Mitf. Eq. Pi. by Jeremy, 295, 296 ; Cooper, Eq. PI. 223, 224 ; Ante, § 252 ; 2 Daniell, Ch. Pr. 102- 104 ; Whitbread v. Brockhurst, 1 Bro. Ch. B,. by Belt, 404, 412, note (9) ; Nobkissen v. Hastings, 4 Bro. Ch. K. 253 ; S. C. 2 Ves. jr. 84; Goodrich u. Pendleton, 3 John. Ch. R. 427; Cooth v. Jackson, 6 Ves. 12, 17. Mr. Beames's reasoning (Beam. PI. in Eq. 10-18), on this subject of duplicity is very satisfactory ; but it is too long to be cited in this place. Mere surplusage will not prejudice a plea in equity by rendering it multifarious or double. Beam. PI. in Eq. 19, 20. What constitutes duplicity or multifariousness in a plea, is sometimes a matter of great nicety upon the footing of authority. Thus, where, to a bill for a specific performance of an agreement, the defendant put in a plea, which averred two facts ; first, that there was no agreement in writing ; and, secondly, that there had been acts done in part performance. . Lord Thurlow overruled the plea as double, it containing two difierent points, and therefore, proper for an answer. Whitbread v. Brockhurst, 1 Bro. Ch. R. 404. But it has been greatly doubted, whether a plea of this sort, properly drawn, is objectionable for duplicity, as it contains but a single point of defence. See Mr. Belt's note to 1 Bro. Ch. R. 404, note (1), and Beames, PI. in Eq. 27-32, 171-177, and the cases cited by the learned author. So, in Beachcroft v. Beachcroft, cited 14 Ves. 63, where to a bill for a legacy there was a plea of release, with an averment, that it had been acted upon ; the plea was overruled for duplicity. But Lord Eldon, in Wood v. Strickland, 14 Ves. 66, doubted that decision, and thought the averment, that the release had been' acted on, mere surplusage. A plea of the statute of limitations setting up two matters, either of which established that de- fence, has been held not to be for that cause a double plea. Didier v. Davison, 2 Sandford, Ch. R. 61. See also upon this subject of duplicity, 2 Mont. Eq. PL 95, note A. L. 97, 100. § 652 a - 656.] pleas. 539 he put in a disclaimer as to the other estates, the plea was over- ruled ; for the disclaimer was wholly disconnected with the plea of tiie fine ; and the plea was therefore double.^ § 654. It may then be laid down as a rule, that various facts can never be pleaded in one plea, unless they are all conducive to a single point, on which the defendant means to rest his defence ; for, otherwise, it will be open to the charge of duplicity and mul- tifariousness.2 Therefore, where a bill was brought by the Cor- poration of London, for the purpose of establishing a claim of ex- emption, on behalf of its individual members, from certain tolls, a plea, stating, that the plaintiffs, who claimed as citizens of London, never were residents or housekeepers there, or paying scot and lot,, and that they were admitted freemen by fraud, for the purpose of enjoying the exemption claimed, was held a double plea, and there- fore overruled. The averment, that the plaintiffs were not resi- dents or housekeepers being one defence ; and the averment of their having been admitted freemen by fraud being another inde- pendent and complete defence ; a colorable admission to such a franchise, for a collateral purpose, being void.^ § 655. Upon an analogous ground, where an action at law was founded upon a great variety of circumstances put together, a plea to a bill of discovery, which attempted to show, that the action could not be maintained, by confessing and avoiding some of the circumstances, and denying the rest, was held not to be good ; be- cause, in effect, it took to pieces all the several single grounds, which, put together, were asserted as the grounds, upon which the bill was maintainable; and, by avoiding some, and traversing others, it reduced the plaintiff to the necessity of proving, in a court of equity, without a discovery, that he had a right to main- tain his action at law.* § 656. The objection is still stronger, where two facts are plead- ed, which are inconsistent with each other. ^ Thus where the ' Watkins V. Stone, 2 Sim. K. 49. See also Cowne v. Douglas, McClel. & Younge, 321. ' Whitbread v. Brockhurst, 1 Bro. Ch. K. 404, 515, by Belt, note (9) ; b. C. 2 Ve8. & Beam. 154, note; 2 Daniell, Ch. Pr. 102-104. See King v. Eay, 11 Paige, 239. . r t ■ i q ' Cooper, Eq. PI. 224 ; Corporation of London v. Corporation of Liverpool, i Anst. K. 738. * Robertson v. Lubbock, 4 Sim. E. 161. _ ■ i vi, n,» ' 2 Daniell, Ch. Pr. 103, 104. If an averment in a plea is inconsistent with the matter pleaded, the plea is bad. Emmott v. Mitchell, 14 Simons, 432. 540 EQUITY PLEADINGS. [CH. XIII. plaintiff stated in his bill a loan of money to the defendant, for which he had given a bond ; but that an agent of the plaintiff had delivered up the security to the defendant ; and the bill prayed a discovery and redelivery of the bond ; and the defendant pleaded, that the discovery would subject him to the penalties of a statute, and also an impeachment exhibited against him by the House of Commons ; the plea was held inconsistent and bad; because, pend- ing the impeachment, there could be no proceedings under the statute ; and the impeachment, decided one way or other, equally put a stop to such prosecution under the act.^ So, where the defendant pleaded to a bill of discovery, in support of an action under the statute 9 Anne, c. 14, for money lost at play, by the assignees of the loser, who had become a bankrupt, " that the action at law was not commenced, and the bill of complaint was not exhibited against the defendant within three months after the money was lost " ; it was held informal, from coupling the com- mencement of the action with the time of filing the bill, and there- fore was overruled.^ § 657. The reasoning, as to duplicity in a plea, does not, per- haps, in its full extent, apply with equal force to the case of two several bars pleaded as several pleas, although to the same matter ; and it may be said, that such pleading is admitted at law, and ought, therefore, to be equally so in equity. But as a plea is not the only mode of defence in equity ; there is not the same neces- sity, as at law, for admitting this kind of pleading.^ But although ' Cooper, Eq. PI. 224, 225. 2 Cooper, Eq. PI. 224, 225 ; Nobkissen v. Hastings, 4 Bro. Ch. K. 253 ; S. C. 2 Ves. jr. 84 ; Brandon v. Sands, 2 Ves. jr. 514, 517. ' Mitf. Eq. PI. by Jeremy, 245, 296, and note (n) ; Cooper, Eq. PI. 226 ; Ante, § 652 ; Jones v. Frost, 3 Madd. E. 8 ; Saltus v. Tobias, 7 John. Ch. R. 214. Didier v. Davison, 10 Paige, K. 515, where this subject is carefully considered. Lord Thurlow, in Whitbread v. Brockhurst, 1 Bro. Ch. R. 404, 415, note (9), by Mr. Belt ; S. C. Ves. & Beam. 154, 155, note, gives the reason of this practice more fully. "The reason," says he, " why a defendant is not permitted to plead two different pleas in equity, though he is permitted to plead them at law, is plain. It is, because at law the defendant has no opportunity, as he has here, of answering every different matter stated in the bill. The reason of pleading in equity, is, that it tends to the forwarding of justice, and saves great expense, that the matter should be taken up shortly upon a single point. But that end is so far from being attained, if the plea puts as much in issue, as the answer could do, that on the contrary it increases the delay and expense. But why, it may be asked, should not the defendant be permitted to bring two points, on which the § 666, 657.] PLEAS. 54J the ordinary course of practice in courts of equity does not admit of several pleas, yet where great inconvenience might otherwise be sustamed in a particular case, the court will sometimes, in its dis- cretion, aUow several pleas.i Thus, for example, a plea that the cause depends, to issue by his pl'ea? The answer is, because, if two, he may as weU brmg three points to issue ; and so on, till all the matters in the bill are brought mto issue upon the plea ; which would be productive of all the delay and inconvenience, which pleading was intended to remedy." Mr Cooper says • "It is said in a manuscript of Lord Nottingham, 'that no man shall be permitted to plead two several dilatories, at several times, nor several bars ; because he may plead all at once. But after a plea in disability, as outlawry, or excommunica- tion, or a plea to the jurisdiction, he may be admitted to plead in bar ; because it was not consistent with those pleas to plead in bar at the same time.' This passage certainly imports, that, in the opinion of Lord Nottingham, both several dilatory pleas, and .several pleas in bar, might be pleaded, so that they were pleaded at the same time. And it may be said, that such pleading is admitted at law, and ought, therefore, now to be equally so in equity. But it should be considered, that a plea is not the only mode of defence in equity, and that, there- fore, there is not the same necessity as at law, for admitting this kind of pleading." Cooper, Eq. PI. 226, 227, Mr. Chancellor Kent, in Saltus v. Tobias, 7 John. Ch. K. 214, 215, refers to the same passage in Lord Nottingham's manuscript. See also Beam. PL in Eq. 15-17, where the learned author doubts the doctrine of Lord Nottingham. Bohur's Curs. Cane. 187. But it has been expressly decided, that where a plaintiff seeks relief as to more than one subject, the defendant may put in a plea to each subject. Emmott v. Mitchell, 14 Simons, K. 432. ' Gibson V. Whitehead, 4 Madd. R. 241 ; Hardman v. Ellames, 5 Sim. R. 640 ; S. C. 2 Mylne & Keene, 732, 734, 735 ; Saltus v. Tobias, 7 John. Ch. R. 214 ; 2 Daniell, Ch. Pr. 103, 104. In Kay v. Marshall, 1 Keen, R. 190', 197, Lord Langdale allowed two pleas to be filed, and stated his reasoning on the subject as follows: — " Upon the subject of double pleas there has been considerable ar- gument at the bar. It has been said, that a double plea is only allowed in cases where there is a sort of double or alternative claim in the bill. In the case cited for the purpose of supporting that proposition, there is such an alternative claim; but there is nothing to show, that this is the principle, still less the only princi- ple, upon which the court proceeds in allowing double pleas. It appears to me, that the principle upon which the court proceeds, depends very much upon the extraordinary inconvenience, that might arise, if the defendant were not allowed, in many cases, to plead double. How far, and in what cases, a defendant may, if he answer, protect himself against answering fully, has been a subject much con- troverted, and upon which judges have differed. A defendant, denying the prin- cipal fact, upon which the plaintiff rests his claim to discovery, is entitled to pro- tect himself by plea against answering ; and if his plea be accompanied by an answer, the answer must be so framed as to support, but not to overrule the plea. Lord Thurlow's objection to bringing two points in issue by plea has been ad- verted to in the argument: ' Why,' says Lord Thurlow, ' it may be asked, should EQ. PL. 46 542 EQUITY PLEADINGS. [CH. XIIL plaintiff is not heir, as asserted in his bill, and a plea of the statute of limitations, have been allowed to be pleaded together.^ § 658. Let us now proceed to the consideration of the proper frame and form of a good plea in equity. And here, it may be stated, that in pleas in equity there must in general be the same strictness and exactness, as in pleas at law ; if not in matters of form, at least in matters of substance.^ We shall first refer to those rules of pleading, which are properly applicable to pure pleas, most of which are equally applicable to pleas not pure, or anoma- lous pleas, according to the distinction already mentioned ; and then we shall examine the rules, which are peculiarly applicable to the latter. § 659. In the first place, then, a plea in bar must follow the bill, and not evade it, or mistake the subject of it. If a plea does not not the defendant be permitted to bring two points, on which the cause depends, to issue by his plea ? The answer is, because, if two, he may as well bring three points to issue ; and so on, till all the matters in the bill are brought into issue upon the plea.' This objection is not applicable to the modern practice of allow- ing double pleas ; because, though a defendant may file a single plea without an application to the court, he cannot put in a double plea without such an ap- plication ; and the liberty, if sought to be abused, is easily restrained. The gen- eral rule, that if the defendant answers, he must answer fully, however estab- lished, is, no doubt, a rule, that, in many cases, occasions great hardship to the defendant. The only other defence is a demurrer, or a plea. A demurrer b not a convenient mode of defence, by reason of the admission, which it involves, if the case made by the bill, and the rules, as to pleas in this court, are of such exceeding nicety and difficulty, that it is almost Impossible for parties, who have a right to plead, to take full advantage of their right. The only way of saving defendants from the hardship, to which, in many cases, they would be subjected by making a fuU discovery, is, by affording to them such facilities, as can, by the rules of the court, be afforded with respect to pleas. I do not think a great indul- gence is sought from the court, where, by obtaining it, the defendants will obtain only that, which the court thinks right. With respect to this particular case, if it be a matter of indulgence, I think the defendants, under all the circumstances, are entitled to it. The defendants are required by the bill to set forth accounts of extraordinary length, at a great expense, and at the risk, though this does not appear, of making an inconvenient exposure of their affairs. This application, therefore, must be granted ; but, according to the course of the court, upon the condition of the defendants paying the costs." ' Bampton v. Birchall, 4 Beavan, R. 558. " Beames, PI. in Eq. Preface, 8, 9 ; Mitf. Eq. PI. by Jeremy, 294 ; Dohson v. Leadbeater, 13 Ves. 230, 233 ; Story v. Lord Windsor, 2 Atk. 630, 632 ; Moore V. Hart, 1 Vern. 114; Carlton v. Leighton, 3 Meriv. E. 667, 670; Carew v. Johnston, 2 Sch. & Lefr. 305 ; 2 Mont. Eq. PI. 101, note A. N. ; 3 Black. Comm. 446 ; McCabe v. Cooney, 2 Sandford, R. 314. § 657 - 660.] PLEAS. 543 go to the whole bill, it must express to what part of the bill the defendant pleads. And, therefore, a plea to such parts of a bill as are not answered, must be overruled, as too general. So, if the parts of the bill, to which the plea extends, are not clearly and precisely expregged ; as, if the plea is general, with an exception of matters after mentioned, and is accompanied by an answer, the plea is bad. For the court cannot judge what the plea covers, without looking into the answer, and determining, whether it is sufficient or not, before the vaUdity of the plea can be considered.^ But, if the plea excepts clearly and definitively certain portions of the property, respecting which the suit is brought, as, for exam- ple, certain real estate, describing it, so that no reference to any other parts of the record is necessary to make it intelhgible, it is not open to the objection, although it is stated in the plea by words of exception .2 § 660. Another requisite of a pure plea, in general, is, that it should be founded on new matter, not apparent on the bill. For, if the matter is apparent on the bill, it is the proper subject of a demurrer, and not of a plea.^ In other words, a plea must aver facts, to which the plaintiff may reply ; and not, in the nature of a demurrer, rest on facts stated in the bill.* However, this doc- trine is to be understood with the qualification, that the plea is not of a purely negative character ; for if it is, then the plea puts in issue the very fact asserted in the bill. Thus, if a bill calls for an account of partnership transactions, and alleges a partnership between the plaintiff and the defendant, the latter may, by a neg- ative plea, deny there was any partnership ; and the plea will be good.5 ' Mitf. Eq. PL by Jeremy, 294; Salkeld v. Science, 5 Ves. 107; Howe v. Duppa, 1 Ves. & Beam. 511 ; Cooper, Eq. PI. 229. ' Howe V. Duppa, 1 Ves. & Beam. 514. ' Beames, PI. in Eq. 44, 45 ; Roberts v. Hartley, 1 Bro. Ch. R. by Belt, 57 and note; Billing v. Flight, 1 Madd. E. 230; Cozine v. Graham, 2 Paige, 177. * Mitf. Eq. PI. by Jeremy, 297. ' Post, § 668 and note, 669, 672-674; 2 Daniell, Ch. Pr. 98, 99, 108, 109-111, 113 ; Mitf. Eq. PI. by Jeremy, 296, 297 ; Evans v. Harris, 2 Ves. & Beam. 361 ; Drew V. Drew, 2 Ves. & Beam. 159; Hall v. Noyes, 3 Bro. Ch. R. 483; Sanders V. King, 6 Madd. R. 61 ; S. C. 2 Sim. & Stu. 274 ; Thring v. Edgar, 2 Sim. & Stu. 274 ; Harris «. Harris, 3 Hare, 450. See Denya v. Locock, 3 Mylne & Craig, R. 205, 234, 235, where Lord Cottenham commented at large on Thring V. Edgar. See also 2 Daniell, Ch. Pr. 1 1 5 - 1 28 ; Wigram on Discov. 136-157, 2d edit. 544 EQUITY PLEADINGS. [CH. XIIL § 661. Another requisite of a pure plea is, that it should not only reduce the cause to a single point, but it should also^be such a point as is issuable, and also such as is material to delay, dismiss, or bar the bill ; for, if the issue tendered is immaterial, it can never finally dispose of the cause.^ And a plea i§ bad, if it raises by averment, an issue not raised by the bill.^ § 662. Another requisite of a pure plea is, that it should be direct and positive, and not state matters, by way of argument, in- ference, and conclusion, which have a tendency to create unneces- sary prolixity and expense. In this respect, the rules of pleading in equity are analogous to the rules at law.^ [Thus where a plain- tiff sues as executor, but the probate is insufficiently stamped, the defendant's plea should not state matters affirmatively, in order to show the insufficiency of the stamp, but should simply plead that the plaintiff is not executor ; for negative matter should be plead- ed negatively.*] Upon this ground, where there was a charge of facts, as constructive notice of the plaintiff's title, in a bill, and the defendant in his plea averred, that to the best of his knowl- edge and belief, he had not any notice, either constructive or actual, the plea was held bad.^ The defendant should have denied the facts charged in the bill, from which the constructive notice was deducible ; and not have assumed to himself the province of the court, to whom it belongs to draw the comclusion.^ He should also have denied the notice positively, fully, and precisely, even though it were not charged on the other side.^ However, where the facts are not charged to be within the defendant's own knowl- edge, as, if they occurred in the time of his testator or ancestor, there, it will be sufficient for him to negative the averment accord- ing to his best knowledge and belief.^ * Beames, PI. in Eq. 20, 21 ; Morrison v. Tumour, 18 Ves. 175. * Emmott V. Mitchell, 14 Simons, R. 432. ' Beames, PI. in Eq. 21, 22 ; Mitf. Eq. PI. by Jeremy, 297 ; Carew v. Johnston, 2 Sch. & Lefr. 305, 306 ; Hardman v. EUames, 5 Sim. 640 ; S. C. 2 Mylne & Keen, 732. * Roberts v. Madocks, 16 Simons, 55. ^ Beames, PI. in Eq. 21. " Beames, PI. in Eq. 21, 22; Jerrard v. Saunders, 2 Ves. jr. 187; S. C. 4 Bro. Ch. R. 322 ; Cooper, Eq. PI. 225, 226, 283 ; Galatian v. Cunningham; 8 Cowen, R. 361 ; Post, § 805, 806. ' Galatian v. Cunningham, 8 Cowen, R. 361. Post, § 697; Boone v. Chiles, 10 Peters, R. 179, 210, 211, 213. * Bolton V. Gardner, 3 Paige, R. 273; Hartt v. Corning, 3 Paige, R. 566; Post, § 664. § 661 - 665.] PLEAS. 545 § 663. So, where, to a bill for the specific performance of an agreement made at an auction for the sale of lands, the defendant pleaded the statute of frauds, with averments, that no writing was signed by him, or by any person authorized by him ; " for that, upon the estate being knocked down to the plaintiff, but before the memorandum was signed by the auctioneer, he, the defendant, in the presence of both the auctioneer and the plaintiff, revoked all authority whatsoever, which he had before given to the auctioneer," the plea was ordered to stand for an answer ; the court observing, that it was novel in form, and that the defendant ought to have stated the facts, which he implied in the term " revoked." It seems, however, that an allegation in a plea, which allegation is mere surplusage, will not support an objection to a plea as multi- farious.^ § 664. In some cases, indeed, a defendant has been permitted to aver according to the best of his knowledge and belief ; as, that an account ig just and true ; and in all cases of negative averments, and of averments of facts not within the immediate knowledge of the defendant, it may seem improper to require a positive asser- tion.^ Unless, however, the averment is positive, the matter in issue appears to be, not the fact itself, but the defendant's belief of it ; and the conscience of the defendant is saved by the nature of the oath administered ; which is, that so much of the plea as re- lates to his own acts is true, and that so much as relates to the acts of others he believes to be true.^ § 665. Another requisite of a pure plea is, that it should clearly and distinctly aver all the facts necessary to render the plea a com- plete equitable defence to the case made by the bill, so far as the plea extends ; so that the plaintiff may, if he chooses, take issue upon it.* Averments are also necessary to exclude intendments, which would otherwise be made against the pleader ; and the aver- ments must be sufficient to support the plea.^ And here, again, ' Cooper, Eq. PL 226. ' Ante, § 662. ' Mitf. Eq. PI. by Jeremy, 297, 298 ; Drew v. Drew, 2 Ves. & Beam. 159 ; Beames, PI. in Eq. 25, 26 ; v. Southall, 1 Younge, E. 330, 331 ; Bolton v. Gardner, 3 Paige, R. 273. * Mitf. Eq. PL by Jeremy, 298 ; Beames, PL In Eq. 23, 24, and cases there cited ; Allen v. Eandolph, 4 John. Ch. R. 693. ' Mitf. Eq. PL by Jeremy, 298, &c., as before cited ; Brownsword v. Edwards, 2 Ves, 245, note ; Roche v. Morgell, 2 Sch. & Lefr. 727 ; Morison v. Tumour, 18 Ves. 182 ; Beames, PL In Eq. 26. 46* 546 EQUITY PLEADINGS. [CH. Xm. equity follows the analogies of the law ; ^ for, at law, the rule pre- vails, ambiguum placitum interpretari debet contra proferentum.^ § 666. It was upon an analogous ground, that, where a plfea stated, that the title, if any, of the plaintiff, or of the party, through whom the plaintiff by his bill claimed the estates in controversy, accrued in 1759, and that the possession of the same estates had ever since been adverse to the plaintiff, and to the persons, through whom by his bill the plaintiff claimed, the plea was overruled ; because it did not state particularly the facts on which the defend- ant meant to rely| as constituting the adverse possession ; and, therefore, the plaintiff could not know, what case he had to meet.^ § 667. Let us, in the next place, proceed to the consideration of the peculiarities in the frame and form of pleas, called pleas not pure, or anomalous pleas. This designation, as has been already suggested, is applied to them, because they differ from pure pleas in this, that, whereas pure pleas rely for a defence upon matters altogether dehors the bill, pleas not pure rely altogethei; upon mat- ters stated in the record, and upon denials and negations of mat- ters of fact contained therein, which denials and negations, if true, constitute a sufficient^ defence against further proceedings in the suit, either peremptorily, or at least in its present form.* § 668. It was formerly a question of no inconsiderabledifficul- ty, and, from the apparent contrariety of authorities, subject to much discussion and vexatious ' controversy in courts of equity, whether a purely negative plea to a bill was a legitimate mode of defence in courts of equity, as it unquestionably is at law. As, for example, it was a question whether a defendant could allege, in opposition to the claims of the plaintiff, as heir at law, that the plaintiff was not heir at law. But that doubt has been dissipated ; and it is now firmly established that such a plea is good.^ The ' Beames, PI. in Eq. 23, 26. " Beames, PI. in Eq. 26, cites Com. Dig. Pleader, E. 6. ' Halrdraan v. Ellames, 5 Sim. R. 640 ; S. C. 2 Mylne & Keen, 732. * Ante, § 651 ; 2 DanieU, Ch. Pr. 97-99, 110-112 ; Id. 132, 133, 139. ' Ante, § 652 a. Mr. Beames (PI. in Eq. 123-128) has given the reasoning upon which this doctrine is maintained. "Whether," says he, "a defendant could allege, in opposition to the claims of the plaintiff in the character of heir, that she was not heir ; in other words, whether a purely or directly negative plea be good in equity, was, for some time vexata qucestio, notwithstanding the old cases alluded to. Lord Thurlow in two cases held, that a plea of not heir was bad. But his lordship observed, in a subsequent case, alluding, as it is generally under- stood, to the latter of these two cases, 'that though he had held, on a former oo- § 665 - 668.] PLEAS. 547 same rule has been applied to many cases, where the negative plea goes to the foundation of the suit, and to the title of the caslon, that a negative plea was bad, he believed he was wrong in holding so ; for that, wherever the plea will reduce the question to one point, it is admissible.' We are told, by the highest authoritj', that ' the original opinion of Lord Thurlow was, that the negative plea was bad, and there ought to be an affirmative plea, stating who was heir. His lordship changed his opinion afterwards, on the ground, that the defendant, though he could prove that the plaintiflF was not heir, might not be able to prove who was the heir.' Lord Thurlow's original opinion, that the plea should state affirmatively, ' who was heir,' proceeded, no doubt, upon the ground of this being in the nature of a plea in abatement at law, and that, as such, it should afford the plaintiff that information, which was tantamount to giv- ing him a better writ at law. The difficulty of stating ' who was heir,' might be great. But it may be asked, whether a correspondent difficulty is not struggled with at law in this species of plea, and if it have^produced any exception, that avoids it ? On the other hand, the propriety of reasoning this particular plea in equity on a strict analogy to the form of a legal plea in abatement may seem questionable, especially as other pleas in equity have not been tried by any such rule. The analogy in principle between pleas in equity to the relief, and pleas at law, is sufficiently uniform, and may generally be appealed to ; but that is not the case with respect to the form of pleas. Whatever doubt, however, may for- merly have been entertained on the subject, it is apprehended* that a negative plea in equity is not necessarily bad ; but on the contrary, under given circum- stances at least, perfectly available. We speak of a plea directly negative, and not of a plea indirectly so, or a plea reaching the point of negation through an affirmative proposition. It wUl probably elucidate this part of the subject, if we consider, on what grounds this doctrine may rest, independently of positive deci- sion. Every bill seems to be founded on two propositions, one of which it ex- pressly, and the other it tacitly, assumes in limine, namely ; first, that the court, in which the biU is filed, has competent jurisdiction over the matter ; and, second- ly, that the plaintiff is of legal ability to sue. It is true, pleas to the jurisdiction in effect negative the first proposition ; but the mode is not by a direct denial of the power of the court to decide the matter, but by affirmatively stating some other tribunal, where the subject should be investigated. With respect to pleas to the person of the plaintiff, outlawry, &c., they, in effect, deny the second prop- osition, tacitly assumed by the biU. The mode, however, is less in the nature of a direct negative of the plaintiff's ability to sue, than by affirmatively stating the cause of disability. A distinction obviously presents itself between those pleas, in effect negative, which bring forward some affirmative proposition, and, through the medium of that proposition, reach negation, and those pleas, which are purely negative. An instance of the first kind would be a plea, stating the existence of a person, as whose administrator the plaintiff filed his bill. Such a plea would bear some analogy to the principle of the common plea in equity to the person. But that plea, which consists of a direct and simple negation of the substantive character in which the plaintiff sues, peculiarly termed the 'negative plea,' does not appear to be founded on any analogy to any other plea in equity. It rests, however, and, as it is apprehended, satisfactorily rests, (independently of decision 548 EQUITY PLEADINGS. [CH. Xm. plaintiff; as, for example, a plea that the defendant was not a partner, has been held good to a bill, seeking an account of part- nership transactions.^ § 669. The reasoning, by which such a plea is supported, seems, in a just sense, unanswerable ; for it would otherwise follow, as a necessary consequence, that any person falsely alleging a title in himself, might compel any other person to make any discovery, which that title, if true, would enable him to require, however in- jurious it might be to the person, thus improperly brought into court.2 So that any person might, by alleging a title, however false, sustain a bill in equity against any person for anything, so far as to compel an answer.^ And thus the title to every estate, the transactions of every commercial house, and even the private transactions of every family, might be exposed ; and this might be in its favor,) first, on its answering the high purposes of justice, and, secondly, on its analogy to legal pleading. As to the first point, it may be observed, that courts of, equity would be instruments of the greatest oppression, and sources of incalculable mischief, if they aided a plaintiff in virtue of a character which did not belong to him. If the plaintiff possess not the character, he is not entitled to the relief, miieh, as possessing the character, he would have been entitled to. This species of plea prevents an evil of the worst kind : and, if it did not exist, ' any person might, by alleging a title, however false, sustain a bill in equity against any person, for anything, so far as to compel an answer ; and thus the title to every estate, the transactions of every commercial house, and even the private transactions of every family, might be exposed ; and this might be~ done in the name of a pauper, at the instigation of others, and for the worst purposes.' With respect to the second point, the plea of the general issue at lawls always a negative plea. In fact, it is a total denial of the whole declaration. But, if there be no plea in equity, which corresponds with the general issue at law, the nega- tive plea in equity corresponds with the legal plea, denying the existence of the plaintiff, a species of plea, which we have already noticed. Its analogy, however, to that legal plea, which negatives the representative character of a plaintiff, is, perhaps, still more striking." See also Mitf Eq. PI. by Jeremy, 230, 231, and notes ; Jones v. Davis, 16 Ves. 265 ; Cooper, Eq. PI. 249, 250 ; Faulder v. Stew- art, 11 Ves. 296 ; Shaw v. Ching, 11 Ves. 303, 305 ; Drew v. Drew, 2 Ves. & Beam. 159 ; Sanders v. King, 6 Madd. R. 61 ; S. C. cited in Thring v. Edgar, 2 Sim. & Stu. 274 ; Hardman v. EUames, 2 Mylne & Keen, 740, 745 ; Armitage v. Wadsworth, 1 Madd. R. 196 ; Foley v. Hill, 3 Mylne & Craig, 475 ; 2 Daniell, Ch. P. 97-100, 108-112; Wigram on Discovery, 2d edit. p. 110-118; Ante, § 651, note. 1 Ibid. ; Ante, § 660. " Mitf Eq. PI. by Jeremy, 231. Lord Redesdale uses the word « answer " only ; but the sense seems to me to require " special answer or plea." ^Mitf Eq. PI. by Jeremy, 231. § 668 - 671.] PLEAS. 549 done in the name of a pauper, at the instigation of others, and for the worst purposes.^ To avoid this inconvenience, a defendant has, in some cases, been permitted to negative the plaintiff's title by a special answer or plea ; and thus to protect himself against the re- quired discovery.^ But in other cases this has not been allowed ; and, until the recent authorities had settled the matter, there was great room for doubt and difficulty upon this subject. § 670. We may, therefore, dismiss the further consideration of this part of the subject, and proceed to the examination of the other class of pleas not pure, which may be truly called, with ref- erence to legal proceedings, anomalous ; but which, at the same time, are now as well established in equity, as any other class of pleas. This class of pleas has two peculiarities ; in the first place, it relies wholly upon matters stated in the bill, negativing such facts as are material to the rights of the plaintiff;^ and in the next place, it requires an answer to be filed, which is subsidiary to the purposes of the plea. A pure plea never requires any such answer.* § 671. It was formerly thought, that there was something in- congruoiis in a plea and an answer in support of the plea. But this objection seems to have arisen from the supposition, that the answer in such a case formed a part of the defence set up by the plea. It is, correctly considered, no part of the defence. But it is properly a discovery of that evidence, which the plaintiff has a right to require, and to use, in order to invalidate the defence made by the plea upon the argument of the sufficiency of the plea, before other evidence can be given.^ > Mitf. Eq. PL by Jeremy, 231. ' ' Ibid. » Ante, § 651, 667. * Beames, PL in Eq. 34, 35; 2 Daniell, Ch. Pr. 99, 100. ' Mitf. Eq. PL by Jeremy, 244, note (/). See Beames, PL in Eq. 34, 35; Hare on Discov. 25, 26 ; Foley v. Hill, 4 Mylne & Craig, 475 ; 2 Daniell, Ch. Pr. 99, 100, 110, 111. Lord Eldon, in Bayley v. Adams, 6 Ves. 594-597, in com- menting on this class of cases, and upon some decisions in the Exchequer, in which it was held, (contrary to the present established doctrine,) that where an award was sought to be impeached by a bill, on account of fraud, the plea should nakedly plead the award, without noticing the facts of fraud, and the answer only should deny those facts, said : " If the result of the opinion stated in Mitford, (Eq. PL by Jeremy, 240-245,) is accurate, it is very difficult to reconcile the two cases m the court of Exchequer with that result from the former cases. Those two cases in the Exchequer seem to import, that this is the rule of pleading in equity; that if a bill is brought to set aside an award, upon grounds admitting the award made, 550 EQIHTY PLEADINGS. [CH. XIH. § 672. The whole difficulty in cases of this sort, in relation to the supposed incongruity of a plea and an answer, may be entirely but seeking to cut down the effect of it by alleging grounds of partiality and cor- ruption, the defendant may plead the thing, the dissolution of which is sought by the bill, putting it in this form ; that the plea shall merely aver the existence of it, and contain no allegation in the body of the plea as to the circumstances, upon which the award is impeached ; but the defendant may express, what his con- science suggests as to those circumstances, not in the body of the plea, but in an answer. The first difliculty upon that is, bow to consider that record, filed by the defendant, consisting partly of what is called plea, partly of what is Called answer, as, in a correct sense, either a plea or an answer. The office of a plea in bar at law, is to confess the right to sue, avoiding that by matter dehors, and giving the plaintiff an acknowledgment of his right, independent of the matter alleged by the plea. The plea alleges some short point ; upon whichvif issue is joined, there is an end of the dispute. In this court, in general cases, not classed among those where certain averments seem to have been required both by the plea and the answer, but where the defendant pro hac vice for the sake of the argument, admits the whole bill, I have understood the rule to be the same here as at law, that the plea, admitting the bill, interposes matter, which, if true, destroys it ; and upon the truth of which the plaintiff is at liberty to take issue. Cases have arisen, in which it has been thought necessary both to plead, and to repeat the assertions of the plea, in an answer. That is, as it is technically expressed, the plea is supported by an answer. Those cases are very various ; and, I own, I should have enter- tained an idea, before I heard of those cases in the court of Exchequer, that, if a bill was filed to set aside an award upon special circumstances, the first diffi- culty would be upon the maxim referred to by the Report : ' Exceptio ejusdem rei, cujus petitur dissolutio.' But it is true, that, not only upon awards, but re- leases, judgments, &c., the court has admitted a plea, called a plea, though in its nature very different from the character of a plea in general causes ; for it is not, strictly speaking, admitting the fact stated, and by the effect of'new matter, intro- duced by the defendant, getting rid of it ; but admitting one fact in the bill, and either by plea, or by answer, or by both, setting up again that, which the bill seeks to impeach, by denying either in the plea, or the answer, or both, all the circumstances which the plaintiff admits, if truly denied, are sufficient to bar the relief. The cases in the Exchequer are confined to the plain case of an award ; in which case, it is said, you are at liberty to plead the award ; in that sense alleging something, that meets the effect of the bill by the plea. But can that be said, if you only admit the existence of the instrument stated by the bill ; which, by the effect of the other circumstances stated by the bill, is impeached ? If this were res Integra, I should have thought it more difficult to say, the defendant was bound to set out all the circumstances by averment in the plea ; and could fortify it by an answer, denying those circumstances. Such a record is neither plea nor answer ; but something like a mixture of both, and very inaccurate. That this was the general idea, is evident from the book, that has been referred to, which is a production of a very diligent and learned man, not at once given to the world, or hastily, but after search and research into every record, and again given to the world by him. There is hardly one point of equitable proceedings with regard § 672.] PLEAS. 651 overcome, or at all events, be essentially diminished, by consider- ing the true nature and objects of bills in equity, and especially of bills, which present questions of this sort. Every bill presents a statement of facts, and a claim of right, on the part of the plaintiff, in regard to which he seeks relief; and it further seeks a discovery from the defendant, in order to establish, or to aid in the proof of such facts and claim of the plaintiff. Now, to such a discovery, at least so far as the facts and claim, constituting the plaintiff's case, are concerned, he has an unquestionable right. The rule has been laid down by a very able writer in the following terms. It is the right, as a general rule, of the plaintiff in equity, (as we have seen,) to examine the defendant upon oath, as to all matters of to pleas, with which it is not exceedingly difficult to reconcile these two casea in the Exchequer. For instance, what is said in Mitford, as to a bill brought to impeach a decree on the ground of fraud, used in obtaining it, ' that the decree may be pleaded in bar of the suit, with averments,' (in the plea it appears by the context,) ' negativing the charges of fraud, supported by an answer fully denying them.' So of a judgment : ' If there is any charge of fraud, or other circumstance, shown as a ground for relief, the judgment or sentence cannot be pleaded, unless the fraud, or other circumstance, the ground upon which the ju(Jgment or sen- tence is sought to be impeached, be denied, and this put in issue by the plea, and the plea is supported by a full answer to the charge in the bill.' In the case of a stated account also : ' If error or fraud are charged, they must be denied by the plea, as well as by way of answer.' -So, with regard to an award, which is the subject these cases in the Exchequer more particularly allude to : ' F fraud or partiality are charged against the arbitrators, those charges must not only be denied by way of averment in the plea, but the plea must be supported by an answer, showing the arbitrators to have been incorrupt and impartial.' Upon the statute of limitations, — ' Where a particular special promise is charged, to avoid the operation of the statute, the plaintiff must deny the promise charged by averment in the plea, as well as by answer to support the plea.' So, ^ to a pur- chase for valuable consideration, — ' The special and particular denial of notice or fraud must be by way of answer ; that the plaintiff may be at liberty to except to its sufficiency. But notice and fraud must also be denied generally by way of averment in the plea ; otherwise the fact of notice or of fraud will not be in issue.' This is laid down here distinctly, and in many other books ; for I have lately looked into the point for another purpose ; and I think I may say, whatever doubt may be expressed as to the necessity of denying by plea and answer, that there is no countenance for that upon the old authorities. Sir John Mitford's idea is, that if you are to call this defence a plea, it must be such, that issue may be taken upon it as a plea ; and if it is substantiated by evidence as a plea, there is an end of the cause. Where the defendant, not stating merely matter dehors, but admit- ting part of the charge, gets rid of it by circumstances, I do not know that .it might not be called a plea and answer. But that is a record of a character very distinct from that which is usually called a plea," 552 EQUITY PLEADINCfS. [CH. XIII. fact, which, being well pleaded in the bill, are material to the proof of the plaintiff's case, and which the defendant does not, by his form of pleading, admit.^ The answer of the defendant, if he puts in one, consists of two parts ; (1.) his own defence upon the mer- its of the case stated ; and (2.) his discovery as to the facts as to which he is interrogated ; or, in other words, his examination on oath to all the material facts, of which a discovery is sought.^ In such a case, the examination is merely evidence in the cause ; and is altogether independent of the matter of the defence. Now, if instead of a general answer, the defendant should put in a plea, negativing the material facts on which the claim to relief is found- ed, if there were no answer accompanying it, which should contain a discovery and response to the facts charged in the bill, the plain- tiff would be deprived of the very discovery sought, and perhaps also of all the proof which he could bring forward to sustain the allegations of the bill. The answer, therefore, is strictly matter in support of the plea, and also proof, to the discovery of which the plaintiff is entitled, notwithstanding the plea. The plea, with- out it, cannot correctly be said to be a complete answer to the bill ; for, although it repels the facts stated by the plaintiff, it does not repel the right to a discovery of the facts, from the conscience of the defendant.^ § 673. The discovery, which a court of equity gives, is not the mere oath of the party to a general fact as to a partnership, or no partnership ; but it is an answer upon oath to every collateral cir- cumstance, charged as evidence of the general fact.* Where a defendant, therefore, pleads the general fact, as a bar to the whole discovery, as well as to relief, either the plaintiff in the particular case must lose the equitable privilege of discovery, or some special . rule must be adopted, by analogy, in order to preserve to him that privilege. If a plaintiff comes into equity to avoid a legal bar upon the ground of some alleged equitable circumstances, as in the case of a release, the defendant is not permitted to avail him- self of his legal defence, so as to exclude the plaintiff from a dis- ' Wigram on Points in Discov. 23, 1st edit. ; Id. 2d edit. p. 10, 11 ; 2 Daniell, Ch. Pr. 114-119; Ante, § 572. " Wigram on Discov. 10-13, 1st edit. ; Id. p. 10, 11, 2d edit. ' See Mitf. Eq. PI. by Jeremy, 239-244 ; 2 Daniell, Ch. Pr. 114-139; Wigram on Discov. 32, 33, 2d edit. ; Id. 46, 55 - 67 ; Hare on Discov. 28 - 31. * Wigram on Discov. 62-67, 2d edit.; Id. 142-157; 2 Daniell, Ch. Pr. 121- 131 ; Hare on Discov. 28 - 31 ; Id. 34 - 36. § 672, 673.] PLEAS. 553 covery, as to the alleged equitable circumstances. He may, in- deed, plead his release ; but he must, in his plea, generally deny the equity charged in the bill ; and must also accompany his plea with a distinct answer and discovery, as to every equitable circum- stance alleged. In such a case, the issue tendered by his plea, is not the fact of his release ; for that fact is admitted by the bill ; but the issue is upon the equitable matter charged. Yet, inasmuch as the principles of a court of equity entitle the plaintiff to a dis- covery from the defendant upon the matter in issue, here we find, that, notwithstanding the defendant pledges his oath, that there is no truth in the equitable matter charged, he is, nevertheless, com- pelled to accompany his plea by an answer and discovery, as to every circumstance alleged, as evidence of the equity.^ > Sanders v. King, 6 Madd. R. 61 ; S. C. cited Thring v. Edgar, 2 Sim. & Stu. 279 ; Hare on Discov. 28-31 ; Clayton v. Earl of Winchelsea, 3 Younge & Coll. 683 ; Wigram on Discov. 62 - 67, 2d edit. ; Id. 142-157 ; 2 Daniell, Ch. Pr. 114 - 132. This explains the reason, why no answer occupies a pure plea ; for that being an averment of matter dehors the bill, it is impossible that it can be required by any discovery of those matters. It would not be responsive to the bill. Mr. Beames, (PI. in Eq. 33, 34,) alluding to the same subject, says : " An answer in support of a plea, seems, in those cases where it is necessary, to be required on several grounds : First, with a view beneficial to the plaintiif, either in aid of proof, and in order to give him an opportunity of obviating the bar to be set up, or, in other words, to enable him to except to the traverse of the facts charged in the bill. If these facts were merely denied by way of averment in the plea, as the plaintiff could not except to such averment, he would be totally precluded from objecting to the insufficiency of that denial, however general in its terms. Secondly, with a view beneficial to the defend- ant, in order to give him an opportunity of excluding intendments, which might otherwise be made against him ; because ' upon argument of a plea, every fact stated in the bill, and not denied by answer in support of the plea, must be taken to be true.' But it is not, perhaps, quite clear, why this latter object might not be effected in most instances by averments simply." Harris v. Harris, 3 Hare, R. 450, 452. On this occasion, Mr. Vice-Chancellor Wigram said: " The defendant has now put in a plea and answer ; the plea is confined to cer- tain parts of the bill ; and the plea does not appear to cover any parts of the bill as to which a discovery can be material to the plaintiff, and is therefore so far properly framed ; for the plaintiff, by excepting to the answer, may get all the discovery to which he is entitled. But the question is, whether that is enough, — whether it is sufficient that the plaintiff has the means of obtaining the discovery upon exceptions, and whether he is not entitled to have upon the file, at the time of the argument of the plea, an answer to every material averment in the bill, which the plea does not cover. This, according to decided cases, appears to depend upon the point, whether the plea is one which, (in technical EQ. PL. 47 554 EQUITY PLEADINGS. [CH. XIH. § 674. The cases, therefore, in which an answer is required by way of discovery to accompany the plea, are ; (1.) where the language,) is said to require an answer to support it. The cases in which this is necessary, are those which Lord Eedesdale calls anomalous pleas, and which Mr. Beames calls incongruous pleas. The example put by Lord Redesdale is that of a bill brought to impeach a decree, on the ground of fraud used in obtaining it, where the decree may be pleaded in bar of the suit, with averments negativing the charges of fraud, supported by an answer fully denying them. There are other familiar examples : as in the case of a defendant who pleads a deed or con- veyance which the plaintiff alleges to have been obtained with notice of his equity, charging facts which would be evidence of such notice ; or a defendant pleading -the statute of limitations, where the plaintiff alleges the existence of facts which would go to prove a subsequent acknowledgment of the debt, sufficient to take the case out of the statute. The defendant must support his plea, in the one case, by an answer as to the facts alleged as evidence of the acknowledgment ; and, in the other case, by an answer to the allegations tending to show the alleged notice. If the plea be not supported by such an answer at the time of the argument, the defendant has not excluded the intendments which will be made against himself under the rule, that, ' upon argument of a plea, every fact stated in the bill, and not denied by answer in support of the plea, must be taken to be true.' The plea now before me is a negative plea, but so, in fact, are all those examples of anom- alous pleas to which I ha,ve referred; anS it appears to me that the same reason- ing must be applied to the plea in the present case as in the cases I have men- tioned. Sir John Leach, indeed, expressly refers to pleas of the one sort as fur- nishing the rule for the other. The reason for acquiring the answer as to the facts alleged in proof of the fraud, or notice, or acknowledgment, in the cases suggested, is, that a mere general averment is, in such cases, equivocal ; it might be only a legal conclusion which the defendant conceives may be drawn from the actual facts, or which he undertakes to draw from those facts. Now, the court does not trust a party to draw for himself a conclusion of law, but the court requires to know the facts upon which it is founded, that it may consider whether the premises justify the conclusion ; not to try whether tbe plea is true, (which is the business of the hearing, not of the argument,) but to try whether it substan- tially meets the case made by the plaintiff. The only doubt which occurred to me, was, whether the simple question of partnership or no partnership, afforded room for that equivocal or possibly evasive denial against which the rule is intended to guard. Partnership is, however, a mixed question of law and fact. There may be circumstances which would have the legal effect of creating a part- nership, whilst one of the partners may desire to repudiate, and may think there are grounds for repudiating, that legal consequence. This point, however, scarcely arises in the present case. The bill charges that the defendant has in his posses- sion books, accounts, and papers, by which the truth of the matters alleged^ — that is, the formation and continued existence of the partnership until the death of Walter — will appear. The answer states, in effect, that the defendant has books, accounts, and papers of his own, which he submits he is not bound to produce ; and, excepting these, he has not any documents by which the truth of the alleged § 674, 675.] PLEAS. 555 plaintiff admits hy bis bill the existence of a legal bar, but charges some equitable circumstances to avoid its effect ; (2.) where the plaintiff does not admit the existence of any legal bar, but charges some circumstances, which may be true, and to which there may be a valid ground of plea, and also charges other circumstances, which are inconsistent with the substantial validity of the plea.i In the first case, the defendant may insist, by way of plea, upon the legal bar, denying the circumstances, which would avoid it ; and he must accompany the plea with an answer, making a dis- covery, as to all the circumstances so charged in the bill, in sup- port of his plea.2 In the latter case, the defendant must distin- guish those facts, which, if true, would not invaUdate or disprove his plea ; and plead to the discovery sought with regard to them. And he must then accompany the plea with an answer to the facts, and to those only, which if true, woxild disprove, or invalidate his plea, and to all the matters, which are specially alleged as evidence of those facts.^ § 675. The first case may be easily illustrated by the common case of a release, charged in the bill to have been obtained by fraud, the circumstances whereof are specially charged. In such matters would appear ; that it would appear upon the documents he has in his possession, he does not deny, and he therefore, for the purpose of the argument, admits it. The plea, therefore, while it avers that there was no partnership, ad- mits that the truth of the contrary would appear by evidence in the possession of the defendant ; and this renders the plea, though it may be good in form, substan- tially bad. The defendant, in effect, undertakes to draw a conclusion of law ; but the intendment being against the pleader with respect to the facts not denied, the result is, that the defendant must, for the purpose of the argument, be considered as having drawn a conclusion, with regard to the effect of the evidence in his possession, which is adverse to the averment by his plea. Such,%s I understand the subject, is the result of the authorities. I do not overrule the plea in this case on the ground that the answer would prove it to be untrue ; for this is not the time, nor are there materials before the court, upon which to enter into the ques- tion of the truth of the plea ; that is the question at the hearing. Nor do I over- rule the plea because the answer is not technically sufficient; that would be properly determined upon exceptions. The ground on which I proceed is, that the rules of pleading, (whether well or ill applied to such a case as this, is not the question,) require that the defendant should have supported his plea by an answer to this material allegation ; and that his plea, therefore, fails in substance to meet the case made by the plaintiff." ' Hare on Discov. 30, 31 ; 2 Daniell, Ch. Pr. 113, 114. " Hare on Discov. 31-34. ' Hare on Discov. 34 - 36 ; Crow v. Tyrell, 2 Madd. R. 409. 556 EQUITY PLEADINGS. [CH. XIIL a case, the plea must rely on the release, and denj the fraud ; and the accompanying answer must also make discovery as to all the circumstances, charged as proofs of the same.^ The second case may be illustrated by a bill for an account of the dealings and transactions of a partnership, charging a partnership, and various transactions thereof. In such a case, if the defendant pleads that he is not a partner, the plea must be accompanied with an answer and a discovery, as to all the circumstances, specially charged as evidence of the partnership.^ 1 Hare on Discov. 32-33 ; Sanders v. King, 6 Madd. 61 ; S. C. cited 2 Sim. & Stu. 274. "i Hare on Discov. 34 - 35 ; Drew v. Drew, 2 Ves. & Beam. 159 ; Sanders v. King, 6 Madd. 61 ; S. C. cited 2 Sim. & Stu. 274. Mr. Hare has fully explained these two classes of cases ; and I gladly refer the reader to his able exposition of them. Hare on Discov. p. 30 - 36. I have contented myself with the short illustrations in the text. In Sanders v. King, 6 Madd. 61 ; S. C. cited 2 Sim. & Stu. 274, Sir John Leach (V. C.) with reference to a plea of partnership, after the observations quoted in § 673, ante, said: " This practice seems to afford a very strong analogy for the present purpose. There the defendant affirms upon his oath, that there is no equitable matter to destroy the legal bar of the release ; yet he is nevertheless bound to accompany his plea with an answer and discovery as to every circumstance charged as evidence of that equity. Here the defend- ant affirms upon his oath, that there is no partnership ; and, by analogy, it seems to follow, that he is nevertheless bound to accompany his plea with an answer, and a discovery as to every circumstance charged as evidence of the partnership. Adopting, therefore, this analogy for the present purpose, it furnishes this rule, that a plea, which negatives the plaintiff's title, tliough it protects a defendant generally from answer and discovery as to the subject of the suit, does not pro- tect him from answer and discovery, as to such matters as are specially charged as evidence of the plaintiff's title. According to this rule, this plea, being un- accompanied by an answer and discovery, as to the circumstances specially charged as evidence of the partnership, should be overruled ; but, being a new case, the defendant must be at liberty to amend his plea.'' In all cases of this sort, it is important for the plaintiff in his bill, if he means to rely on circum- stances as evidence in support of his, the plaintiff's title, and of which he seeks a discovery, that he should specially charge such circumstances as evidence of his title, otherwise the defendant may plead a negative plea, denying the plaintiff's title, without any accompanying answer. Indeed, in such a case, the answer, if it claims a debt, will overrule the plea. Thus, where to a creditor's bill the de- fendant pleaded, that the deceased was not indebted to the plaintiff at her death, and accompanied the plea with an answer denying the debt, and the manner in which it was contracted ; it was held, that the answer overruled the plea. On that occasion, the vice-chancellor said : " To apply these principles to the present case ; If the testatrix were not at her death indebted to the plaintiff in any sum of money, then the plaintiff's title to any relief, or to any discovery upon this bill, § 675, 676.] PLEAS. 557 § 676. The origin of this class of pleas may be easily traced to a change m the frame and character of bills and pleadings, from those which existed under the old practice of the couft. The bills were formerly of a very simple character, not taking any notice of the real or supposed defence, which would be set up by the defend- ant. The defence came out upon a plea ; and the replication stated the matter in avoidance of the plea ; and then the rejoinder denied the matter in the replication ; and the parties were then at issue. When, for example, according to the old practice, a plaintiff by his bill, stated a case for relief; if there had been a former decree on the merits, which he sought to set aside, on account of fraud in obtaining the decree, the bill did not, in any manner whatsoever, allude to the decree. It was left to the defendant to plead the decree, as a defence, barring the plaintiff's right. And the plain- tiff then, by his replication, would reply, that the decree had been obtained by fraud : by which the plaintiff would admit, that the decree was a bar, if not capable of impeachment on the ground of fraud. The defendant would, by his rejoinder, avoid, or deny the charge of fraud, and sustain the decree ; and the issue would be wholly fails ; and the plea of no debt is a full bar to the whole suit ; unless the plaintiff has sought from the defendant a discovery of any circumstances, by which the existence of the alleged debt is to be established ; and then the defendant, although by his plea he may deny the debt, must still answer as to the particular discovery, which is thus sought from him. But, in order that a defend- ant may in such a case know, what is the particular discovery, which the plaintifi requires from him, it is incumbent upon the plaintiff distinctly to state it in the bill ; and the common form of doing this is, by the plaintiff's charging as evidence of his title, the particular matters, as to which he seeks a discovery from the defendant. Unless the defendant is distinctly informed by the plaintiff what are the particular matters affecting his title, as to which he seeks such discovery, the defendant, not knowing what he is expected to answer, is not to answer at all. The plaintiff in the present bill gives no distinct information to the defendant, that he seeks any discovery from him, for the purpose of establishing the exist- ence of the debt. The defendant's plea, therefore, of no debt, was a full bar to the whole discovery, as well as to the relief. And the defendant as much over- ruled his plea by answering to the debt, as he would have overruled it by answer- ing to any other part of the bill. If upon the filing of this plea, the plaintiff had desired a particular discovery from the defendant, as to any circumstances, by which the debt was to be established, he would have amended his bill, and would have charged, as evidence of his title, the special matters, which he required to be answered." Thring v. Edgar, 2 Sim. & Stu. 274, 280, 281. But see Jones v. Davis, 16 Ves. 265 ; Arnold v. Heaford, 1 McClel. & Younge, 330 ; Hare on Discov. 35, 36. 47* 558 EQUITY PLEAOmGS. [CH. XIII. pimply on the fact of fraud .^ In such a case, it is manifest, that no answer, on the part of the defendant, to the charges of fraud, would be proper ; for, as no such charges were in the bill, no dis- covery would be sought, or would be proper. In truth, if there were any answer in such a case, it would overrule the plea.^ § 677. This mode of pleading continued for a great length of time ; and was originally derived from the Civil Law. For by that law, after the libel, the defendant put in his exception (excep- tio) ; then the plaintiff put in his replication (replicatio) ; and then came the rejoinder and subsequent pleadings, until the parties had arrived at a definite issue. Thus, we find in the Digest, that in the first place came the definition of the exceptio, which has been already cited ;^ .then the definition of a replication ; Replicato est contraria exceptio, quasi exceptiunis exceptio ; or more fully : Re- plicationes nihil aliud sunt, quam exceptiones, et a pa/rte actoris veniunt.* And then there is added : Sed et contra replicationem solet dari triplicatio ; et contra triplicationem rursus ; et deinceps multiplicantur nomina, dum aut reus aut actor objecit.^ § 678. But, when a change of the frame of pleadings took place, • Mitf. Eq. PI. by Jeremy, 243, note (e) ; Beames, PI. in Eq. 2-6. ' See Gilb. For. Kom. 58, 59 ; Mitf. Eq. PI. by Jeremy, 299 ; Beames, PI. in Eq. 37, 38. In Mitf. Eq. PI. by Jeremy, 299, it is said : " A defendant may also support his plea by an answer touching anything not charged by the bill, as notice of a title, or fraud ; for by such an answer nothing is put in issue, covered by the plea from being put in issue, and the answer can only be used to support or disprove the plea. But if a plea is coupled with an answer to any part of the bill, covered by the plea, and which consequently the defendant by the plea declines to answer, the plea will, upon argument, be overruled." For the former portion, he cited Gilb. For. Kom. 58, where it is said : " But you may answer anything, which is not charged in the bill, in subsidium of your plea ; as you may deny notice in your answer, which you deny also in your plea, because that is not putting anything in issue, which you would cover by your plea from being put in issue ; but it is adding by the way of answer, that which will sup- port your plea, and not an answer to a charge in the bill, which by your plea, you would decline." But quaere, if this doctrine be maintainable ? Must not an answer be to matters charged in the bill? If the answer is as to other matters, is it not irrelevant ? Can the defendant make his answer evidence in support of his plea, when not responsive to the bill ? See Beames, PI. in Eq. 36 - 38 ; Arnold's case, Gilb. For. Rom. 59. See Thring v. Edgar,, 2 Sim. & Stu. 274. » Ante, § 650 ; Dig. Lib. 44, tit. 1, 1. 2. * Dig. Lib. 44, tit. 1, 1. 2, § 1. 5 Dig. Lib. 44, tit. 1, 1. 2, § 3. §676-680.] PLEAS. 559 and special repUcations, rejoinders, and surrejoinders, fell into dis- use ; and the bill, instead of relying solely on the matter, con- stituting the plaintiff's original case, proceeded to anticipate the defence ; and charged facts to avoid that defence, (thus perform- ing the double functions of a bill, and of a replication under the old practice ;) and required a discovery as to the matters charged ; a change in the mode of making his defence became indispensable for the protection of the defendant ; and he was compelled to put in a plea, which was in part both a plea and a rejoinder. That is, he was obliged to plead the bar, and to negative the charges and' circumstances, which sought to avoid it. And as a discovery was sought, in relation to these very matters charged in avoidance, he was also compelled to accompany his plea with an answer, fully discovering, and responding to these matters. Under such cir- cumstances, the objection, non potest adduci exceptio ejusdem rei, cujus petitur dissolutio, did not apply. For the material issue be- tween the parties was not the bar set up in defence ; but it was the facts and charges set up in the bill to avoid it.^ Nor was the plea, under such circumstances, liable to the imputation of du- pUcity ; for it contained in the whole but one single defence. And the answer was necessary in support of the plea; because the plaintiff was entitled to the discovery of the facts and charges, stated in his bill, in avoidance of the bar, and which might be in- dispensable to prove his case at the hearing.^ § 679. Let us now proceed, first, to the consideration of the al- legations, which such a plea ought to contain, or to omit ; and next, to the consideration of what the accompanying answer should contain, or should omit ; both of which are of great practical im- portance. § 680. First, as to the plea. It has been a matter of much juridical discussion and controversy, whether, in the case of a plea to a bill, which bill admits a good bar or defence to exist to the suit, and then states facts and circumstances in avoidance of such bar or defence, the plea should negative those facts and circum- stances, or should simply plead the bar or defence without more, and rely on the accompanying answer alone to negative and dis- ' Gilb. For. Kom. 55, 56 ; Bayley v. Adams, 6 Ves. 595, 596 ; Cooper, Eq. PL 227, 228. ' See Beames, PI. in Eq. 2-6 ; Bayley v. Adams, 6 Ves. 597, 698; Ante, § 671, note ; Evans v. Harris, 2 Ves. & Beam. 364. 560 EQUITY PLEADINGS. [CH. XIIL prove them. It is now firmly established, that the plea itself, as well as the answer, must contain averments, negativing the facts and circumstances, so set up in the bill in avoidance of the bar or defence. For otherwise, the plea will not amount to a complete defence to the bill ; since the denial of those facts and circum- stances is in truth the only point in controversy.^ If those facts • Mitf. Eq. PI. by Jeremy, 239 - 244, 298, 299 ; Heath v. Corning, 3 Paige, E. 566. It may be thought, that Lord Cottenham's remarks in Foley v. Hill, 3 Mylne & Craig, 475, 480, 481, somewhat limit this doctrine. But it is not so. There the plaintiff, by the statute of limitation, expressly negatived any prom- ise within six years ; and the very question was, whether there should not be an answer in support of the plea, averring the special circumstances set up in the bill to establish a promise and to avoid the bar. It was decided upon the clear- est principles of equity, that there should be such an answer. Lord Cotten- ham on that occasion said : " The bill in this case is founded upon the principle of anticipating a legal bar in the shape of a plea of the statute of limitations ; and, with that view, it introduces, in the usual way, a charge, which, if true, would remove the bar, by preventing the operation of the statute. That is the neat statement of the point, and it certainly raises a question applicable, not only to the statute of limitations, but to every case where a charge is to be found in a bill, which, if true, would remove an expected legal bar. The de- fendants plead the legal bar. No objection is taken to the averments of the plea ; but the objection is, that the allegation, which, if true, meets the bar, and is very properly excluded from the plea, is not answered. The answer does not, in terms, negative that allegation ; and the argiunent is, that under these circum- stances, the court must adjudicate upon the plea, and, that the question, whether that allegation be or be not true, although a material part of the case in order to try the truth of the plea, is not a material circumstance upon the argument of the plea ; in other words, that the court would be bound to allow the plea, al- though there was no statement in the answer to destroy the effect of the alle- gation in the bill, introduced for the purpose of meeting and displacing the an- ticipated bar. Now, independently of authority, and having been occasionally engaged in cases of this sort for upwards of thirty years, I have always consid- ered it to be one of the best established principles of pleading, that this could not be done. I have always understood, that where a bill contained an allega- tion, which would meet the legal bar, the defendant could not plead the legal bar without negativing that allegation. That applies to all cases of this kind,— to pleas of the statute of limitations, pleas of fraud, and so forth. Lord Kedes- dale lays down the rule very clearly. Lord Eldon not only lays it down, but rests his decision upon it in Bayley v. Adams, 6 Ves. 586 ; for the result of that case was, as appears from the marginal note, and his lordship's judgment, that the charges in the bill were not sufficiently answered, and the question was, whether, under those circumstances, the plea was, or was not to be allowed. It was argued, that, if the charge, introduced for the purpose of meeting the plea, has not been sufficiently answered, the proper course is to take exceptions to the answer. That, however, is not so. The plainfiff cannot except to the answer, § 680.] PLEAS. 661 and circumstances do not exist, the bar or defence is admitted by the plaintiff to be perfect. If they do exist, the defendant must equally admit that the bar or defence is fatally defective.^ Some illustrations of this doctrine will occur in the subsequent pages.^ until after the argument on the validity of the plea ; for, by excepting to the answer, he would admit the validity of the plea. (Red. PI. 317, 4th ed.) The reason of the rule is not very material ; for we find it not only laid down by Lord Kedesdale and Lord Eldon, but received as the universal rule in practice. The whole machinery of pleading in equity is somewhat cumbrous, and not quite well reduced to principle. At the same time we must recollect, that the plaintiff, by the mode of pleading he has adopted, furnishes himself with a special replica- tion in the bill, if he anticipates the defence by introducing a charge which would meet it. If the defendant had pleaded the statute, the plaintiff, according to the old practice, would reply the matter here stated by way of charge. That would be a special replication, a course which is not now permitted ; but the plaintiff does that, which is equivalent to it, by framing his bill in the manner he has adopted here. Npw, the defendant cannot plead to the whole of such a bill as that ; for the legal bar is not the only question to be tried. There are two ques- tions : first,'whether the legal bar would apply ; and, secondly, if it would, whether it is not defeated by the circumstances charged in the bill for the purpose of meet- ing it. Then the defendant puts in the plea, pleading the legal bar ; and talses issue on that matter, which is to deprive the legal bar of its effect. The court requires, that he should meet that allegation in the bill, which, if true, would ihow, that the bar ought not to prevail ; otherwise, the court would be deciding upon the legal bar without the advantage of the plaintiff's oath, as to whether there was not something in the case, which would make that legal bar inoperative. The court, therefore requires, that the defendant should, at least to the extent of his oath, pledge himself to the denial of that, which, if true, would defeat the legal bar. These defendants have pleaded the legal bar; but they have left quite untouched the charges introduced for the purpose of obviating that bar. It is a question which all authorities and the universal practice of the profession have determined ; and I have no doubt, without hearing the counsel for the plaintiff, that the vice-chancellor's decbion was right." See 2 Daniell, Ch. Pr. 112-128. ' Mitf. Eq. PI. by Jeremy, 240 - 244 ; Beames, PL in Eq. 27 - 32 ; Cooper, Eq. PI. 227, 228 ; Bayley v. Adams, 6 Ves. 586, 594-599 ; Cork v. Wilcock, 5 Madd. R. 328, 330 ; Hart v. Corning, 3 Paige, R. 566. This question is most elaborately reasoned out by Lord Redesdale, in considering the question, where a decree is sought to be avoided for fraud. But his reasoning is equally applicable to all other cases; and, therefore, it is here cited at large. "If," says he, " a bill is brought to impeach a decree on the ground of fraud used in obtaining it, which, as has been observed, may be done without the previous leave of the court, the decree may be pleaded in bar of the suit, with averments negativing the charges of fraud, supported by an answer fully denying them. Whether averments, negativing the charges of fraud, are necessary to a plea of this description, ap- pears to have been a question much agitated in recent cases ; upon which it may 2 Post, §681-689. 562 EQUITY PLEADINGS. [CH. XIII. § 681. Secondly ; as to the answer in support of the plea. In order to require, or even to justify, such an answer, there must be be observed, that without such averments, if the decree were admitted by the bill, nothing would be put in issue by the plea. The question in the cause must be, not whether such a decree had been made, but whether such a decree having been made, it ought to operate to bar the plaintifiF's demand. To avoid its opera- tion, the bill must allege the fraud in obtaining it ; and to sustain it as a bar, the fact of fraud must be denied and put in issue by the plea. For, upon the ques- tion, whether the decree ought to operate as a bar, the fact of fraud is the only point upon which issue can be joined between the parties ; and unless the plea covers the fact of fraud, it does not meet the case made by the bill ; and on argu- ment of the plea, the charge of fraud not being denied by the plea, must be taken to be true. If the bill states the decree only as a pretence of th_e defendant, which it avoids by stating, that, if any such decree had been made, it had been obtained by fraud, the decree must be pleaded ; because the fact of the decree is not ad- mitted by the bill ; and the charge of fraud must also be denied by the plea for the reasons before stated. If the bill states the decree absolutely, but charges fraud to impeach it, yet the decree must be pleaded ; because the decree, if not avoidable, is alone the bar to the suit ; and the fraud, by which the bar is sought to be avoided, must be met by negative averments in the plea ; because, without such averments, the plea would admit the decree to have been obtained by fraud, and would therefore admit that it formed no bar. When issue is joined upon such a plea, if the decree is admitted by the bill, the only subject, upon which evidence can be given, is the fact of fraud. If that should be proved, it would open the plea on the hearing of the cause ; and the defendant would then be put to answer generally, and to make defence to the bill, £is if no such decree had been made. The object of the plea is to prevent the necessity of entering into that defence by trying first the validity of the decree. If the evidence of fraud should fail, the decree, operating as a bar, would determine the suit, as far as the operation of the decree would extend. It has also been objected, that a plea of the decree is a plea of the matter impeached by the bill. But the frame of a bill in equity necessarily prodaees, in various instances, this mode of pleading. If the bill stated the title, under which the plaintiff claimed, without stating the decree, by which it had been effected, the defendant might have pleaded the decree alone in bar. If the bill stated the plaintiff's title, and also stated the decree, and alleged no fact to impeach it ; and yet sought relief founded on the title con- cluded by it, the defendant might demur ; because upon the face of the bill the title of the plaintiff would appear to be so concluded. But as in the form of pleading in equity, the bill may state the title of the plaintiff, and at the same time state the decree, by which, if not impeached, that title would be concluded, and then avoid the operation of the decree, by alleging, that it had been obtained by fraud ; if the defendant could not take the judgment of the court upon the conclusiveness of the decree by plea, upon which the matter, by which that decree was impeached, would alone be an issue, he must enter into the same defence, (by evidence, as well as by answer,) as if no decree had been made ; and would be involved in all the expense and vexation of a second litigation on the subject § 681.J PLEAS. 563 some specific facts charged in the bill, to which such an answer is a proper response. A bill may be specific in two respects. It may allege a particular fact, and charge that the evidence thereof is in the possession of the defendant ; or it may be specific in charging a general fact, such as the fact upon which the title of the plaintiff is founded, and charge particular circumstances to prove that general fact, and require discovery thereof from the defendant. It is necessary, in order to the allowance of an an- swer in support of a plea, that the bill should contain some charge of one kind or of the other.i Therefore, where tlie bill does not charge any specific fact, inconsistent with the plea, negativing, and avoiding, as it were, that plea by anticipation, but only alleges, generally, that the defendant holds papers and writings, by which the truth of the several matters charged in the bill, or some of them, would appear, (which matters, if true, would not affect the validity of the plea, but would leave it with its full force,) it is not necessary to put in an answer in support of the plea ; for nothing is charged, which is specific in any point of view, to defeat the plea, and an accompanying answer is unnecessary ; and indeed, is improper, since it would overrule the plea.^ of a former suit, which the decree, if unimpeached, had concluded. It is there- fore permitted to him to avoid entering into the general question of the plaintiff's title, as not effected by the decree, by meeting the case made by the plaintiff, which can alone give him a right to call for that defence, namely, the fact of fraud in obtaining the decree. This has been permitted to be done in the only way, in which it can be done, by pleading the decree with averments, denying the fraud alleged ; and those averments being the only matter in issue, they are necessarily of the very substance of the plea. The decree, if obtained by fraud, would be no bar ; and nothing can be in issue on a plea, but that which is con- tained in the plea ; and every charge in the bill not negatived by the plea, is taken to be true on argument of the plea. If, therefore, the decree merely were pleaded on argument of the plea, the charge of fraud must be taken to be true, and the plea ou*ht therefore to be overruled. But if on argument the plea were allowed, or if the plaintiff, without arguing, replied to the plea, no evidence could be given on the charges of fraud to avoid the plea ; and the defendant proving his plea, that is, proving the decree and nothing more, would be entitled to have the bill dismissed at the hearing.'* Mitf. Eq. PI. by Jeremy, 239-243 and note {g). See also 2 Ves. & Beam. 364 ; 6 Mad. K. 64 ; 2 Sim. & Stu. 279 ; Ante, § 671, note. ' Hare on Discov. 36, 37 ; Macgregor v. East India Company, 2 Sim. K. 455 ; James v. Sadgrove, 1 Sim. & Stu. 4 ; Hindman v. Taylor, 2 Bro. Ch. E. 7 ; Post, § 754. ' Hare on Discov. 37; Macgregor v. East India Company, 2 Sim. K. 452; 664 EQUITY PLEADINGS. [CH. XIH. § 681 a. But if the bill should contain allegations, which, if true, would, defeat the bar set up by the plea, in such a case the plea cannot be pleaded to the discovery prayed by the bill, although the bill merely charges, in general terms, that the defendant has in his custody or power, divers books, papers, and writings, by which, if produced, the truth of the several matters aforesaid, or some of them, would appear. For in such a case there ^might be an an- swer, negativing the existence of such books, papers, and writings; or there might be a discovery, which, when made, might complete- ly prove a case, which would displace the bar.^ Hardman v. EUames, 2 Mylne & Keen, 743, 774; Cooper, Eq. PI. 228, 229; Mitf. Eq. PI. by Jeremy, 269-272 ; Forbes v. Skelton, 8 Sim. E. 335. ' Clayton v. Earl of Wincbelsea, 3 Younge & Coll. 683 ; Lord Portarlington V. Soulby, 6 Sim. E. 356 ; James v. Sandgrove, 1 Sim. & Stu. 4 ; Maegregor v. East India Company, 2 Sim. E. 455. This last case may be thought to involve some qualification or contradiction of the doctrine. But perhaps, correctly con- sidered, it is reconcilable with it; for the court seemed to think, that the bill contained no allegation, that there had been any promise within six years to pay the debt, and therefore a pure plea of the statute of limitations was proper ; and that the general language of the bill, that the defendant had books, papers, &c., in his custody, which would prove the allegations in the bill, or some of them, did not call for any discovery, which would avoid the bar. Lord Abinger, in Clayton v. Earl of Winchelsea, 3 Younge & Coll. 683, 689, thought the case of Maegregor v. East India Company incorrectly decided; and that a plea of the statute of limitations was not maintainable to a bill of discovery. But this must be understood in a qualified sense ; for if none of the facts sought to be discovered would avoid the bar, then it would seem, that the plea was good. But his lordship's opinion, that the general allegations in the bill, as to papers and documents, &c., are sufficient to require a discovery by answer, seems well founded. On this occasion his lordship said : " It appears to me, that the ques- tion in this case rests on a simple point. In determining these cases, one would be desirous, if possible, to show, that the pleadings, both at law and in equity, were reconcilable with common sense ; and I think, that upon a careful examina- tion of the principles, on which they rest, they will, generally speaking, be found to be so. Now, I think, that the distinction, which may sirve to reconcile many of the cases oi;i this subject, is that, which exists between a negative and affirma- tive plea. If you charge matters in the bill, and demand discovery as to those matters, and the defendant pleads affirmative matter, the issue of which lies upon him to prove, and he then goes on to answer any matter charged in the bill, the answer overrules the plea ; because it is wholly immaterial to the plea. But if he plead a negative plea ; that is to say, if he traverses matters charged in the bill, and the bill not only alleges those matters, but also that the defendant has documents, which would prove them, the plea is not satisfactory, if he does not also deny the possession of those documents. The plaintiff has a clear right to a defence upon both points. No doubt, the defendant, by his plea, denies what the § 681 a, 682.] pleas. 565 § 682. So, unless it appears from the frame of tlie bill, that some discovery is sought from the defendant, by which the exist- ence of the title of the plaintiff is to be established, no answer is necessary or proper ; for, in order that a defendant may, in such a case, know what is the particular discovery, which the plaintiff requires of him, it is incumbent upon the plaintiff distinctly to state it in his biU. And the common form of doing this is, by the plaintiff's charging, as evidence of his title, the particular matters, as to which he seeks a discovery from the defendant. Unless the defendant is distinctly informed by the plaintiff, what are the par- ticular matters affecting his title, as to which he seeks such dis- covery, the defendant, not knowing what he is expected to answer, is not to answer at all.^ plaintiff puts in issue, and maj' do so conscientiously enough. But if the plaintiff calls on him to produce documents to prove the issue, it is not sufficient, if he do not make some statement, as to that, which relates to the proof of the allegation. It ia said, indeed by the learned counsel for the plaintiff, and very justly, that in this bill there is no special charge, that the defendant has deeds, which would show that he had taken tithable matters ; but surely the general charge is suffi- cient to embrace that. It states, generally, that the defendant has documents in his possession, which would tend to show the truth of the matters charged in the bUl, or some of them. Suppose he had a book, showing the produce of corn for the last year ; that would be a document. I think, that a plea, in order to be a good defence as a negative plea, ought to go on to meet that part of the bill, which relates to the proof of the matter of the plea. An affirmative plea stands on a different ground." There does not, however, seem to be any real distinction between the case of an affirmative plea, and that of a negative plea, where the bill contains charges, anticipatory of the plea, and avoiding it, as has been remarked by the learned reporters, (3 Younge & Coll. 689, note (a) ; Mitf. Eq. PL by Jeremy, 270 - 273 ; Post, § 754, 806 ; 2 Daniell, Ch. Pr. 112 - 128. ^ Thring v. Edgar, 2 Sim. & Stu. 274 ; Pennington v. Beechey, 2 Sim. & Stu. 282; Hare on Discov. 38, 39; 2 Daniell, Ch. Pr. 112-128. Mr. Hare (on Discov. 39, 40), has remarked on the language of the court in the case of Thring V. Edgar, 2 Sim. & Stu. 274, cited in the text, as follows : " The form of expression here pointed out, it would seem, must be confined to those cases, where the de- fendant charges a particular circumstance in support of his title. It can scarcely, in any propriety of language, apply, where the bill, having averred the specific fects, upon which the title is founded, charges in the common form, applying to books and papers, that by them the truth of ' the several matters aforesaid, or some of them, would appear'; and merely adding to that general charge, that a certain fact in particular would thereby be proved. For example, if the bill insisted upon a certain agreement, and as evidence thereof, charged, that the defendant had done some act, manifesting his sense of the existence of the agree- ment, the words in question may be aptly used, as indicating the matter to be EQ. PL. 48 666 EQUITY PLEADINGS. [CH. XIII. § 683. But if there be a special charge, that the defendant holds a particular document or paper, or is acquainted with a particular discovered in tlie event of tlie defendant's pleading to the general fact. But if the plaintiff states his case, as he may do, without alleging any collateral matter as evidence of it, he may still entitle himself to an answer, notwithstanding the plea, if he adds to the usual charge, that the defendant holds papers and writings, from which the truth of the several matters would appear, an allegation, that thereby in particular, some circumstances, which he specifies, inconsistent with the anticipated plea, would appear. The formal words, adverted to, are then inappropriate. The object of the charge is, to compel an admission, upon which the plaintiff might require the papers to be produced. The papers may constitute evidence favorable to the plaintiff; the mere possession of them of itself proves nothing." See Ante, § 681 a, and note ; Clayton v. Earl of Winchelsea, 3 Younge & Coll. 683, 688. Mr. Justice Washington, in Sims v. Lyle, 4 Wash. Cir. C. E. 303, 304, made some remarks upon the nature and office of a plea, and when an answer should accompany the same, which deserve to be cited in this place. " A plea, being nothing more than a special answer to the bill, setting forth and rely- ing upon some one fact, or a number of facts, tending to one point, sufficient to bar, delay, or dismiss the suit, it would be a vice in the plea to cover any other parts of the bill, than such as concern the particular subject of the bar; its office being to reduce the cause, or some part of it, to a single point, and thus to pre- vent the expense and trouble of an examination at large. It is true, that all facts essential to render the plea a complete defence to the bill, so far as the plea extends, must be averred in it, or it will be no defence at all. If the plea be to the whole of the bill, it must cover the whole, that is, it must the whole subject, to which the plea applies, and which it professes to cover, or it will bebad. As, if the bijl respect a house and so many acres of land ; and the plea, professing to cover that charge, pleads only in bar as to the house. But if it cover the whole subject, and contains a full defence in relation to it, there is no necessity, nor would it be proper to notice other parts of the bill, not involved in the subject, to which the plea applies. If the plea be only to a part of the bill, the rest of the bill ought to be answered, or else the court would consider the parts not embraced by the plea, or answered, as true. But there is no instance, where the plea con- tains in itself a full defence to the bill, that an answer is necessary, unless it is rendered so, in order to negative some equitable ground stated in the bill for avoiding the effect of the anticipated bar ; as where fraud, combination, facts intended to avoid the force of the statute of frauds, or to bring the plaintiff within some of the exceptions to the act of limitations, as the one or the other of these defences may be expected. And in those and similar cases, the defendant is bound, not only to deny those charges in his plea, but to support his plea by an answer, also denying them fully and clearly. If every plea required an answer to accompany it, there would be no use for the twentieth rule, lately established by the Supreme Court, (which is conformable to the English practice,) which declares, that if the plea be overruled, the defendant shall proceed to an- swer the bill ; since the argument supposes, that the bill has already been answered. In this case, the plea professes to go to the whole bill, and does in fact cover the § 683, 684.] PLEAS. 567 fact, by which document, or paper, if produced, or by which fact, if confessed, the general title, asserted by the plaintiff, would be proved ; then, and in that case, there must be an answer accom- panying the plea, which shall deny the possession of the document or paper, or the existence or knowledge of the fact.^ So, a plea of no partnership to a bill for a partnership account, is defective in substance, if not supported by an answer to allegations in the bill, which, if true, would establish the partnership.^ So, if the bill should allege, that the defendant has in his possession, deeds and papers, which would prove, not merely the general title, which the bill sets out ; but which' would prove particular facts, which contribute to establish that title, there must be an answer accom- panying the plea.3 So, if the bill, after stating a general fact, should formally allege, as evidence of that fact, that certain cir- cumstances had occurred, of which he seeks a discovery, to estab- lish that general fact, there must be an answer, not only negativ- ing the general fact, but also all the circumstances, which the bill so alleges as evidence thereof.* § 684. Indeed, the doctrine may be stated in a more general form. If there is any charge in the bill, which is an equitable cir- cumstance in favor of the plaintiff's case against the matter plead- ed, such as fraud, or notice of title, that charge must be denied by way of answer, as well as by averment in the plea. In such a case, the answer must be full and clear, or it will not be effectual to support the plea ; for the court will intend the matters so charged against the pleader, unless they are ftiUy and clearly denied.^ But if they are in substance fully and clearly denied, it may be suffi- cient to support the plea, although all the circumstances charged m the bill may not be precisely answered. Even though the court, upon argument of the plea, may hold these charges sufficiently de- whole subject, to which the plea applies. And if the matter of it be a full defence to the suit, it is unnecessary to answer other parts of the bill, not involved in the subject, which forms the ground of the defence." > Hare on Discov. 37; Deare v. Attorney-General, 1 Younge & Coll. 197; Foley V. Hill, 3 Mylne & Craig, 475, 480, 481. ^ Harris v. Harris, 3 Hare, R. 450; Everit v. Watts, 10 Paige, K. 82. " Hare on Discov. 37 ; Hardman v. Ellames, 5 Sim. R. 647, 650 ; S. C. 2 Mylne &Keen, 742; Harland v. Emerson, 8 Bligh, (N. S.) R. 86; Harris v. Harris, 3 Hare, R. 450. * Hare on Discov. 38, 39 ; Evans v. Harris, 2 Ves. & Beam. 364 ; Bogardus v. Trinity Church, 4 Paige, R. 178 ; Plummer v. May, 1 Ves. 426. ' Mitf. Eq. PL by Jeremy, 298, 299. 568 EQUITY PLEADINGS. {CH. XIIl nied by the answer to exclude intendments against the pleader; yet if the plaintiff thinks the answer to any of them is evasive, he may except to the sufBciency of the answer in those points.^ § 685. Thus, for example, a plea of a release, cannot properly ex- tend to the discovery of the consideration of the release, if the con- sideration is impeached by the bill ; but the plea must be assisted by averments, covering the grbunds, on which the consideration is so impeached; and it must be accompanied by an answer, stating the facts as to the consideration, in support of the plea.^ Therefore, where a bill stated various transactions between the defendant and the testator of the plaintiff, and impufed to those transactions fraud and unfair dealing on the part of the defendant ; and impeached ac- counts of the transactions delivered by the defendant to the testator, on the ground of errors, omissions, unfair and false charges ; and also impeached a purchase of an 'estate, conveyed by the testator to the defendant, in consideration of part of the defendant's alleged demands ; and prayed a general account, and that the purchase of the estate might be set aside as fraudulently obtained, and that the conveyance might stand as security only for what was justly due from the testator's estate to the defendant ; a plea of a deed of mutual release, which was put into so much of the bill as sought a discovery, and prayed an account of dealings and transactions prior to and upon the day of the date of the deed of release, and to all relief and discovery grounded thereupon, and which stated the deed to have been founded on a general settlement of accounts on that day, and to have excepted securities then given to the de- fendant for the balance of those accounts, which was in his favor, and averred only, that the deed had been prepared and executed, without any fraud or undue practice on the part of the defendant, was overruled.^ The consideration for the instrument " was the general settlement of accounts ; and if those accounts were liable to the imputations cast upon them by the bill, the release was not a fair transaction, and ought not to preclude the court from de- ' Mitf. Eq. PI. by Jeremy, 298, 299 ; Cooper, Eq. PI. 228, 229 ; Drew u. Drew, 2 Ves. & Beam. 159 ; Chamberlain v. Ager, 2 Ves. & Beam. 259 ; Beames, PI. in Eq. 27, 28, 35, 36 ; Bogardus v. Trinity Church, 4 Paige, K. 178. * Mitf. Eq. PI. by Jeremy, 261, 263. " Mitf. Eq. PI. by Jeremy, 262, 263 ; Roche v. Morgell, 2 Sch. & Lefr. 721 ; Fish V. Miller, 5 Paige, E. 26 ; Boltcta v. Gardner, 3 Paige, R. 273 ; Parker v. Alcook, 1 Younge & Jerv. 432. §684-687.] PLEAS. 669 creemg a new account. The plea, therefore, could not be allowed to cover a discovery tending to impeach those accounts ; and the fairness of the settled accounts was not put in issue by the plea or supported by an answer, denying the imputations charged in the bill.^ § 686. Hence, also, it is, that, in every case, where an answer is required to accompany a plea, the plea should not cover the whole bill. But it should cover so much of the bill only as does not relate to the discovery of the particular facts, to which the plaintiff has a right to require an answer in support of the plea. If it covers such a discovery it will be bad ; because the defendant is bound to make that discovery .^ § 687. Upon this ground, where a bill was brought by an ac- ceptor against an indorsee of a bill of exchange, to have it delivered up to be cancelled, as being a security for money lost at play to the drawer ; and the bill charged that it was indorsed to the defendant without consideration, and after it was due ; and it also charged notice of the circumstances, under which it was accepted, and that the defendant had in his custody books, papers, &c., from which the t»uth of the matters contained in the bill would appear ; and the defendant put in a plea to the whole bill, that he was a bond fide purchaser for a valuable consideration, without notice of the circumstances alleged in the bill ; and for better supporting his plea, put in an answer, denying, that the bill was indorsed after it was due, or that he had notice of the circumstances, under which it was alleged in the bill to have been accepted ; but it omitted to notice the allegation in the bill, that he had books and papers, &c., from which the truth of the matters charged would appear ; the plea was overruled by the court for this defect.^ The plea was ' See next preceding note. " Portarlington v. Soulby, 6 Sim. R. 356 ; Davies v. Davies, 2 Keen, K. 538. ' The plea was ordered to stand for an answer, with liberty to except. Port- arlington V. Soulby, 6 Sim. R. 356. See Wigram on Points of Discov. 151-153, 162-181, 1st edit.; Id. 32-39, 2d edit. Mr. Wigram, in the work last cited, holds, that it is not necessary, in order to require an answer in support of a plea, that the facts should be charged in the bill, as evidence of the plaintiff's case. But that it is sufficient, that such facts as are charged, are of a nature which are material to the plaintiff's case, and necessary to be replied to by an answer in support of the plea. He admits, that Sanders v. King, 2 Sim. & Stu. 277, S. C. 6 Madd. K. 61 ; Thring v. Edgar, 2 Sim. & Stu. 274, and Pennington v. Beechey, 2 Sim. & Stu. 282, are the other way ; but he controverts their author- ity. Wigram on Points of Discov. 168 - 181, Ist edit. ; Id. 32 - 79, 2d edit. 48* 570 EQUITY PLEADINGS. [CH. Xni. then allowed to be amended, and the possession of books and pa- pers, &c., denied in the amended plea. The plea as amended, was also held bad ; because it was a plea to the whole bill ; whereas it ought ito have been a plea to all the reUef, and to all the discovery sought by the bill, except certain parts ; and to those parts there ought to have been an answer in support of the plea.^ § 688. On the other hand, great care must be taken not to ex- tend the answer beyond the facts and circumstances, which are necessary to be discovered in support of the plea, and are not cov- ered by the plea ; for, if a plea is coupled with an answer to any part of the bill, covered by the plea, and which, by the plea, tbe defendant consequently declines to answer, the plea will, upon ar- gument, be overruled.^ The same principle will apply where there ' See next preceding note. '' Mitf. Eq. PI. by Jeremy, 299, 319, 320 ; Cottington v. Fletcher, 2 Atk. 155 ; Gilb. For. Kom. 58 ; Beames, PI. in Eq. 36, 37, 38 ; Portarlington v. Soulby, 6 Sim. E. 356; S. C. 7 Sim. R. 28; Hook v. Dorman, 1 Sim. & Stu. 227; Bolton V. Gardner, 3 Paige, R. 273; Ferguson v. O'Hara, 1 Peters, Cir. K. 493 ; Souze? V. De Meyer, 2 Paige, 574; Brownell v. Curtis, 10 Paige, R. 210; Bangs v. Strong, 10 Paige, E. 12 ; Foley v. Hill, 3 Mylne & Craig, 475, 480, 481 ; Brueu V. Bruen, 4 Edw. Ch. E. 640 ; and the remarks of Lord Cottenham in itenys v. Locock, 3 Mylne & Craig, 235-237. There are great difficulties in framing pleas •which require answers in support of them. In Chadwick v. Broadwood, 8 Beavan, R. 309, Lord Langdale said : " It is further objected to this plea, that it is informal, and that it does not accomplish that, which is rarely if ever accomplished by the union of a plea and answer, in consequence of objections arising from the several rules of pleading. The rules have been agreed upon by both sides ; the difficulty is in acting on them in each particular case. They may be stated thus ; you are to answer everything charged in the bill, which if true would displace thp plea, and this you must do whether the bill does or does not expressly charge those matters to be evidence of the facts. If they are material for the purpose of dis- placing the plea, they are to be answered ; but, on the other hand, if they are not material for that purpose, you are not to answer them, for by so doing you overrule your plea. Now, in this case, it is said, that the defendant has either done too much or too little ; there are certain receipts and acknowledgments for rent, which are stated in the bill to have been in the possession of the defendant, and to be evidence of the matters charged in the biU, or some of them ; there are also statements in the bill of the payments of rent, for which these are the receipts and the acknowledgments. The defendant has answered as to the re- ceipts and acknowledgments, but he has not answered as to the payment of rent. Kow it is said, he has either answered too much or too little ; for, if he was bound to answer as to the receipts and acknowledgments, then he has done too little, because he has not answered as to the payments. On the other hand, if he was not bound to answer as to the payments, then he has done too much, because, in that case, he ought not to have answered as to the receipts and acknowledg- § 687, 688.] PLEAS. 571 is a plea, and no answer whatsoever is required in support of the plea from any charges in the bill, requiring a discovery ; for, in such a case, any answer is impertinent, and overrules the plea.J The reason of this doctrine is, that pleas are to be put in ante litem contestatam; because they are pleas only, why the defendant should not answer ; and, therefore, if he does answer to anything to which he may plead, he overrules his plea ; for the plea is only, why he should not answer ; and if he answers, he waives the ob- jection, and of course his plea.^ ments. Now, the distinction which has been drawn by Mr. Girdlestone on that point is to this effect ; he says this is not a payment which you may apply to anything stated in the bill, but a payment alleged in the bill as evidence of tenancy and not of heirship. I think he is mistaken as to that ; and that it is stated as evidence of the plaintiff's title, which consists in his heirship and nothing else, and it appears to me, therefore, even on this point of form, if the defendants got over the other difficulties, that this plea would have to be over- ruled." See Taylor v. Luther, 2 Sumner, R. 228 ; Stearns v. Page, 1 Story, K. 204. > Thring v. Edgar, 2 Sim. & Stu. 274 ; Beames, PL in Eq. 37; Mitf. Eq. PI. by Jeremy, 299, 319, 320. But see Wigram on Points of Discov. 174 - 178, 1st edit. ;. Id. 138 - 154, 2d edit. See Lord Cottenham's remarks in Denys v. Loeock, 3 Mylne & Craig, 235, 237, on Thring v. Edgar. * Gilb. For. Rom. 58 ; Arnold's case, Gilb. For. Rom. 50 ; Cottington v, Fletcher, 2 Atk. 155, 156 ; Beames, PI. in Eq. 37- 39 ; Mitf. Eq. PI. by Jeremy, 240, note (6) ; Souzer v. De Meyer, 2 Paige, R. 5 74. Mr. Wigram has some very important observations on this topic, which, though long, are proper to be quoted. (Wigram on Points of Disc. 172- 181, 1st edit.) "Mr. Beames, in his valuable book upon pleas in equity, refers to numerous cases, affirming the proposition, in support of which he cites them, that, ' if an answer extend to any part of the bill covered by the plea, it will be fatal to the plea on argument.' The rule, then, in its strictest sense, cannot be carried beyond this, that a defendant must not answer that which his plea covers ; for that, by the rules of pleading, he is understood to decline answering. The rule of pleading, thus defined, raises a distinct question of law ; namely, What is meant by the expression, ' discovery covered by a plea ? ' The meaning of this, in one sense, must have reference to a case, in which the defendant having insisted that he was not bound to give specified discovery, has de facto given the very discovery which he had in terms insisted he was not bound to give ; as, where a defendant, having pleaded to all the discovery sought by the bill, has answered part of it. This, however, was not the sense in which the vice- chancellor understood the rule in Thring v. Edgar ; for in that case, the answer, by which the plea was held to be vitiated, applied to matter expressly excepted out of the operation of the plea ; and, therefore, not, at all events, de facto, or in terms, covered by it. The sense, in which the vice-chancellor must have used the expression, and which the passage cited from the Forum Romanum may possibly be supposed to point at, may thus be stated. General rules of law, unconnected 672 EQUITY PLKADINGS. [CH. XIII. § 689. Care should also be taken by the plaintiff not to except to the answer in support of a plea, if there is any doubt as to the ■with rules of pleading, determine what discovery a plaintiff is entitled to. If a plaintiff seeks to obtain discovery, to which, by those general rules, he is not entitled, the defendant may submit to the court the reasons upon which he founds his right to be protected against the discovery sought. A plea is one of the ap- pointed modes of making this submission ; and the question of substance, which every plea to discover raises, is, whether the matter of the plea is or is not a reason in law, why the plaintiff should not have that discovery which he seeks. Whatever discovery the plea would, on the part of the defendant, be a reason in law for not giving that discovery, the plea is said to cover. Confining the obser- vations which follow, to those parts of the bill which the plea thus covers, the strictest interpretation of which the rule in question is susceptible is this ; that, whatever the defendant (who pleads) may, — he must, — abstain from answering, or waive the benefit of his plea to discovery altogether. Further than this, the rule of pleading referred to cUnnot possibly go. There is no authority, so far as the author has been able to discover, for holding, that a plea is vitiated by an answer merely, irrespective of the matter, to which such answer may apply. The rule is, not that any answer overrules a plea ; but that an answer to that, which the plea covers, overrules it. The admissibility of an answer in subsidium of a plea excludes the argument, which would carry the rule beyond this. It must, therefore, in a given case, be determined, what the plea covers, before the effect of the answer upon it can be tried. If the bill contains allegations, which, if uncontroverted, would ^invalidate the plea, these (as already shown) the defend- ant must answer. And, in the absence of authority to the contrary, it seems irresistibly to follow, that a plea can never be hurt by a discovery, which relates exclusively to the matter of the plea itself. That discovery, the plea can never cover ; unless, indeed, the plea in fact purports to cover it ; which, however, is not the case here supposed." Again he says : " How, then, it may be asked, is a plea to be framed in a case, in which the plea does not exclude all right to dis- covery ? A full answer to this question would involve the investigation, which the writer has already declined. The following suggestions are all that he ven- tures now to offer upon the subject. The defendant must, of course, begin by integrating (as into a separate bill) those parts of the bill, the answers to which are material to the trial of the plea ; for these must not at aU events be covered by the plea. If a given charge in the bill, being relevant and material to the trial of the plea, be also relevant and material to those parts of the bill which the plea should cover, such charge must, for the purposes of the plea, be itself divided ; namely, so far as it relates to the matter of the plea, &c. ; and to that extent the charge must not be covered by the plea. If a given charge, relating exclusively to the matter of the plea, be not material for the purppse of the trial of the plea, the defendant (it is conceived) safely exercises an option about answering it or not. By answering it, he will not (it is conceived) overrule hiS" plea, (provided it be properly excepted out of the operation of the plea, so that the plea and answer may not in fact apply to the same thing ;) because he will not thereby give any discovery of matter, which, by his plea, he declines to answer. And, by refusing to answer such a charge, he will not (it is conceived) affect the valid- § 689.] PLEAS. 573 sufficiency of the plea ; for the taking of exceptions to the answer will, under such circumstances, have the effect of allowing the plea, in the same manner as a replication to the plea would do.^ ity of his plea, because, by the supposition, the discovery is not material. This last suggestion is consistent with the principles before contended for, (in my first proposition,) and appears to be sanctioned by the opinion of Sir Thomas Plumer, in Drew v. Drew. In that case, the plaintiff alleged, that John Drew, her son, (then deceased,) had been her husband's apprentice, and afterwards her partner, in the business of a lighterman and coal-merchant ; and that, upon his death, the defendant, (one of his children,) had become his administrator, and had taken possession of the plaintiff's effects. The bill prayed an account of the partner- ship dealings, and a sale of the effects. The defendant put in a negative plea, denying the partnership ; and one of the objections taken to the plea was that the defendant ought to have answered the charge, that his father was the ap- prentice, as that fact might afford some evidence, from the probability that he would be taken into partnership. The vice-chancellor (Sir Thomas Plumer) allowed the plea. ' It is not necessary,' his Honor said, ' to answer every circum- stance, tending to the point, upon which the defendant relies, and tenders an issue by his plea.' If it be doubtful, whether a given charge must be answered, or may be covered by the plea, and the answer to such charge be one, which the defendant do not object to give, the safer course is to leave it both unan- swered and uncovered until the argument of the plea. The court can, without difficulty, allow a defendant to amend his plea ; but there is great difficulty in allowing him to withdraw an answer. This, indeed, was done by Lord Lynd- hurst, C. B., in the late case of Tarlton v. Hornby, in the Exchequer, 1 Y. & Coll. 172, upon the (supposed) authority of the case of Stone v. Yea. But the authority of this latter case for that purpose, was denied by the Lords Commisr sioners in the late case of Angell v. Westcombe. If the question be one, which it is an object with the defendant not 'to answer, he must, of course, at all hazards, cover it by his plea. Having thus determined, what the plea shall leave uncovered, and (as a consequence of this) what it shall purport to cover, the defendant must actually accompany the plea with an answer as to all those uncovered parts of the bill, the answers to which are material to the argument of the plea. Whether he need further, before the argument, answer charges in the biU, which affect only the truth of the plea (such parts being uncovered by the plea) is considered hereafter." Mr. Wigram, in his second edition, has added to the foregoing remarks ; but they do not essentially change the structure of the argument. I have not, therefore, thought it necessary to vary the original quo- tation. See Wigram on Points of Discov. § 219 - 224, p. 146 - 157, 2d edit. See also the cases cited, of Drew v. Drew, 2 Ves. & Beam. 159 ; Stone ;;. Yea, Jac. K. 426; and Lord Cottenham's remarks on Thring v. Edgar, 2 Sim. & Stu. 274, in the case of Denys v. Locock, 3 Mylne SfCraig, 235 - 237. ' Cooper, Eq. PI. 533; Mitf. Eq. PI. by Jeremy, 317; Gilb. For. Kom. 95; Beames, PI. in Eq. 37, and note (4) ; Wigram on Points of Discov 172, 173, 177, 178, 1st edit.; Id. 146-157, 2d edit.; Foley v. Hill, 3 Mylne & Cra.g, 475, 481, 482. 574 EQUITY PLEADINGS. [CH. XIII. The true course, in such a case, is first to set down the plea for argument ; and if it should be held good, the answer may then be excepted to for insufficiency.^ § 690. Where facts appear upon an answer to an original bill, which will operate to avoid the defence made by plea to an amend- ed bill, the answer to the original bill may be read on the argu- ment of the plea, to counterplead the plea.^ So that it should seem, that, if the answer to an original bUl will disprove an aver- ment in a plea to an amended bill, the court may permit it to be read for that purpose.^ § 691. In regard to the form and frame of a plea, and an an- swer in support of it, it may, in conclusion, be stated .that, as the averments, negativing the charges of fraud, are used merely to put the fact of fraud, as alleged by the bill, in issue in the plea, they may be expressed in the most general terms, provided they are sufficient to put the charges of fraud, contained in the bill, fully in issue.* And, as the plaintiff is entitled to have the an- swer of the defendant upon oath to any matter in dispute between them, in aid of proof of the case made by the bill, the defendant must answer to the facts of fraud, alleged in the bill, so fully, as to leave no doubt in the mind of the court, that upon that answer, if not controverted by evidence on the part of plaintiff, the fact of fraud could not be established.^ If the answer should not be full in all material points, the court may presume that the fact of fraud may be capable of proof in the point not fully answered ; and may ' Lord Redesdale, on this subject, has remarked : " Where a defendant pleads or demurs to any part of the discovery sought by a bill, and answers, likewise ; if the plaintiff takes exceptions to the answer, before the plea or demurrer has been argued, he admits the plea or demurrer to be good ; for, unless he admits it to be good, it is impossible to determine, whether the answer is sufficient or not. But, if the plea or demurrer is only to the relief prayed by the bill, and not to any part of the discovery, the plaintiff may take exceptions to the answer before the plea or demurrer is argued. If a plea or demurrer is accompanied by an answer to any part of the bill, even a denial of combination merely, and the plea or demurrer is overruled, the plaintiff must except to the answer as insuf- ficient. But if a plea or demurrer is filed without any answer, and is overruled, the plaintiff need not take exceptions, and the defendant must answer the whole bill, as if no defence had been made to it. Mitf. Eq. PI. by Jeremy, 317. See Kuypers v. Dutch Reformed Church, 6 Paige, 570. ' Mitf. Eq. PI. by Jeremy, 299, 300; Bogardus v. Trinity Church, 4 Paige, R. 178. = Ibid. ' Mitf. Eq. PI. by Jeremy, 244. » Ibid. §689-692.] PLEAS. 575 therefore not deem the answer sufficient to support the plea as conclusive ; and, therefore, may overrule the plea absolutely, or only as an immediate bar, saVing the benefit of it to the hearing of the cause.i But although the answer may be deemed sufficient to support the plea upon argument, the plaintiff may except to the answer, if he conceives it not to be so full to all the charges, as to be free from exception ; or, by amending his bill, he may require an answer to any matter, which may not have been so extensively stated, or interrogated to, as the case would warrant ; or to which he may apprehend, that the answer, although full in terms, may have been in effect evasive.^ [* § 691 a. While it is well settled that the defendant in a bill in equity may plead to part of the bill, and answer the remainder, he cannot make one defence by plea ta the whole bill, and another distinct defence by way of answer. Even the English rule which allows the same defence to be stated by way of plea, and also in the form of an answer, will not justify two distinct defences by plea and answer, that indulgence being designed only to prevent the failure of justice by accidental slips.^ § 691 h. It was held in the case of Mansell v. Feeny,* that to a bill for the purpose of establishing a partnership, the defendant could not put in a plea denying the partnership, and at the same time make answer raising a distinct defence and admitting the possession of documents which he declined to produce ; that such a defence was bad, both in form and in substance ; and that the defendant could not thereby escape from the production of the documents admitted by his answer and bearing upon the matter in dispute.^] § 692. Unlike a demurrer,^ a plea may be bad in part, and not in the whole.^ Thus, for example, if a plea covers too much, the ' Mitf. Eq. PI. by Jeremy, 244, 245. ' Ibid. [* * Mansell v. Feeney, 2 Johns. & H. 313. A substantial defence to a bill will be ' held available, though not expressly raised by the pleadings ; the facts on which it rested being expressly alleged in the bill and answer and substantiated by the evidence. Ormes v. Beadel, 2 De J. F. & J. 333. * 9 Weekly Reporter, 532 ; S. C. 2 Johns. & H. 313. " Ibid.] » Ante, § 443; Cooper, Eq. PL 113, 115, 231; Huggins i). York Buildings Company, 2 Atk. 44 ; Dormer v. Fortescue, 2 Atk. 284 ; Mitf. Eq. PI. by Jer- emy, 214 and notes ; Beames, PI. in Eq. 49. ' Cooper, Eq. PI. 281 ; Duncalf «. Blake, 1 Atk. 53; Huggins v. York Build- ings Company, 2 Atk. 44 ; Ante, § 443. 676 EQUITY PLEADINGS. [CH. XHI. court will allow it to stand for the part which it properly covers.-^ § 693. But a plea, like a demurrer, may be either to the whole bill, or to a part only of the bill. If it does not go to the whole bill, it should definitely and exactly express to what parts it does extend.^ And if one defence is made by the answer, and another defence by the plea, the plea will be ordered to stand for an an- swer. And, indeed, whenever a plea is to the whole of the bill, if it is a bar at all, an answer to any part of the bill overrules the plea.^ If a plea is to the whole of the bill, but does not extend to, or cover the whole, the plea is bad.* As, where a bill of fore- closure was filed of a messuage and forty acres of land ; and the defendant pleaded an absolute title in himself, and averred, that the premises consisted of »a messuage and tenement ; and that they were the same which were meant by the bill ; the court' over- ruled the plea, because it could not be considered as relating to the forty acres; though it was insisted^ that the word "tene- ment," might relate to any land, and that the averment of iden- tity was a fact traversable, which the defendant was bound to prove.^ § 694. As to the form of a plea, it is, l^ke a demurrer, always prefaced by a protestation against any cohfession or admission of the facts stated in the bill. But the -only use of this seems to be to prevent any conclusion in another suit ; because, for the pur- pose of deciding the validity of the plea, the bill, so far as it is not contradicted by the plea, is admitted to be true.® After the protestation, the defendant always states in the plea the extent to * Dormer v. Frotescue, 2 Atk. 284 ; Beames, PI. in Eq. 44, 45 ; French v. Shotwell, 20 John. K. 668 ; S. C. 5 John. Ch. R. 555 ; Kirkpatrick v. White, 4 Wash. Cir. R. 595. » Ante, § 659. = Cooper, Eq. PI. 229 ; Mitf. Eq. PI. by Jeremy, 294, 295. The validity of a plea must be tried with reference to the charges in the bill, and not by the inter- rogatory part. Clayton v. Earl of Winchelsea, 3 Younge & Coll. 683 ; Id. 426 ; Ante, § 28, 36 ; Milligan v. Millege, 3 Cranch, R. 220. * Cooper, Eq. PI. 229, 230 ; Wedlake v. Button, 3 Ants. 636 ; Beames PI. in Eq. 41, 42, 43 ; Anon. 3 Atk. 70 ; Broom v. Horsiey, Mosel. R. 40 ; Salkeld v. Science, 2 Ves. 107; Hare v. Duppa, 1 Ves. & Beam. 511. ^ Cooper, Eq. PL 229, 230 ; Wedlake v. Hutton, 3 Ants. 636 ; Beames, PI. in Eq. 41, 42, 43 ; Anon. 3 Alk. 70; Broome v. Hersley, Mosel. R. 40; Salkeld v. Science, 2 Ves. 107 ; Hare v. Duppa, 1 Ves. & Beam. 511. " Beames, PI. in Eq. 46, 47. -H98H694.] -^ PtEA^,,,., .577 rwWeMtgoes; ^s^ Whether it is> the wJjGj^ bill, orts part only :of th^^bijl,; aM in that latter c^e, to what(,par1[.itis-intei}dpd to apply.i: ,,I.ij.^th©- aext place, follows the, substance' of the plea ftr matter relied upon, as an objection to the jurisdiction of the court ^or to, the pexson of the plaintiff or of the defendant, or^n'the bar af .the suit, together, with su«h ayermeHts ,as, are, requisite and i necessary to support it- The ■ conclusion of the plea 1^ a. repe- tition, that the matters so offered are relied upon, 'a:s ^n' objection ;;to the jurisdiction, or to the persotfbf the plaintiff' or of the de- fendant, or .in_ the bar of tiie suit ; praying the judgpient of th'e -Gourt,Trh§th&p .the defendant ought, to-be compelled to make any farther or other- answer to the bill, or to -the- part -of it, to which -1;he glea:is offered.^ ^r,;ivt, ,,11 -' ' ' ■.;.,: ■: >!B6»mete,-Pl. mEqi46, 47. Mt. Beamej.^n Bpeakmg upon the 'sutijeot Of "the foraial conciiis'ion ofpl^s, says 1 " It may not,' perhaps, be useleW to observe, ■ that, kt liw, pleas to. the jurisdicfiioh generally conclude :by- praying jurlgmfent, -•#hetherth© court wUl take- further c6gnizance' of thenlatter, whilst pleas to the '^ person include, either by praying judgment, if the plaintiff ought ttv be answered "his 'bill, and thatit Biay be' 'quashed, or by praying Judgment of the, bill, writ, or --(iount,'(as thC'case may be,) and that the same may be quashed.- And special pleas in bar'cohelude by: prayihg judgment, if the-plaintiff^Oilghf to have, or 'Biaintain bis' action. I have"' endeavored, by coBs<in^-inany of 'fhe told books of • prtictiee, to ascertain, whether 'dny considerable uniforniity or precision prevailed in the eoticlusion- of pleas in equity. 'S&iii6 of tliei«ild'fortns ofj^'pleas^to- the jnris- ' diction, dortclude- by praying the judgtoeiit of the court, -frhetftei' it would- hold " plea upon, and enforce the defendant to answer the bill- for the cause aforesaid, ■wherein the deifendant submits tothe order of the- court ; WhilSt'Mhtei- precedents, ■ with l^ss" precision, demand j'tidgrSieti of 'th& 'Court whether this defendant shall be -cdfi^llfed to make-any further aiislver. ' The foi!m of pleas in equity to the per- ■soa' are' tolerably uniform in -c6n(iiudiBg,: by praying judgment- Of 'thei court, ■ whether ^he' defendant shall be compelled to make any'ttirtheii-an'swei",* during "the existence Xif the- disability pleaded. ' The- precedents of pleas in ^equity iitbar XgfeitfeKiily-'conclude, with pleading the' matter set ip in -bar! of- the- discovery and ■'relief Of the discovery, &c;,a9'the ease''m'a|y be, and usually dtanand the jud'g- meiit bf-'the' court, whether the defendants shall 'bfe'compelled tb'niabfe'any fur- •■theif'an^er'to the colJiplainant':S'bill!'praying to'be disriiissed'with costs 5 a prayer, "^that is aortietimes added, and sQBaetimesbinitted:-: But pleas in bar, aeeording-to ' the='61d' books, dd Wt always state', that the inattier is pleaded ' in' bar.'' 'If, indeed, 't'Kei'^ be 'in)' 'pdiiit' of form, in which pleas of 'all' d-e'sd-ipfioris may be-said, *lth ' -r^spedt to their conclusion, aud'that, With very few 4kceptiohs-,itd'cOncur, it wi'll be found to be demanding the judgment cff the cou'rti'whefh^r'tAeiiaeffeiidant Shall "'iiiakeanyfui'ther orothet answer,'-L'apart of't-he'plea peciAietrly applicable to ""'ife -iiaWe' as it- defenc'e in ■ a ''eourt (if 'equity, where it professedly brings forward, ^'"■^ iiii: ^L'-''"' L:!ii9i^." . - - -/:- ,-. -I ,.-,-:-■-: M'---- Sid :: :■- 578 EQUITY PLEADINGS. [CH. XIH. § 695. When an answer accompanies a plea, in order to support it, it is prefaced with an averment, that the defendant does not thereby waive his plea, but wholly relies thereon.^ So, where the as we have already had occasion to remark, a substantive ground, why the de- fendant should not answer. There are, I apprehend, but few cases in the books relative to the conclusion of pleas in equity. In Bandolph v. Kandolph, an early case, Mr. Baron Parker considered a plea defective, because the defendant ' did not aver it in the conclusion,' a form, that some of the old pleas observe, but others disregard. In Alison v. Sharpley, a defendant pleaded an administration granted of the goods within the province of York, the intestate having died pos- sessed of personal estate in the province of Canterbury, as well as in that of York ; and the plea ' concluded generally,' demanding, ' whether the defendant ought to make answer to any matter contained in the bill in any other manner.' The court considered the plea to be good, as far as it applied to the personal es- tate in the province of York, ' and they were clearly of opinion that the conclu- sion extended to make it a plea to the whole bill, though the matter of the plea was special, and therefore, that, as to what was not contained in the plea, the de- fendant ought to answer, and so it was awarded.' Neither of these cases can be considered as decisive of the question raised in Merrewhether v. Mellish. In that case, the court says : ' The question is reduced to the point of form, as to the conclusipn of the plea, whether it is sufficient to say, the defendant ought not to be called upon for a further answer, or whether, as at law, the plea ought to state, the additional parties are necessary, naming them." I should apprehend, that these are two perfectly distinct questions, and\hat a plea may be right in respect to one, and bad as to the other. The plea at law, in the body of it, states the parties by name, who have been omitted ; and the case in Mosely, though not a decision, goes some way towards showing, that the plea in equity should state the parties omitted, if not by name as in Fawkes v. Pratt, at least generally. If that statement be necessary, it forms part of the body of the plea, which, if the objec- tion raised in Merrewhether v. Mellish, as to the conclusion, can be substantiated, may still be defective in the conclusion. How far that objection is sound, the reader must decide, as it merely remains to add, that the court, after blending the two questions, held the plea in that case informal, but gave leave to amend it." Beames, PL in Eq. 48 - 51 ; Merrewhether v. Mellish, 13 Ves. 435. The follow- ing form is given in Vanheythuysen's Equity Draftsman, pp. 444, 445, as the form of a pure negative plea : " This defendant, by protestation to all the discovery and relief sought and prayed by the complainant's said bill, &c., he, this defend- ant, doth plead, and for plea he saith, that he, this defendant, is not executor or administrator in the bill mentioned, or the legal representative Of the said B., which said representative or representatives ought to be made party or parties to the complainant's said bill, as this defendant is advised. All which matters and things this defendant avers to be true, and pleads the same to the said bill, and humbly demands the judgment of this honorable court ; and humbly prays to be dismissed, with his reasonable costs," &c. ' Cooper, Eq. PI. 231 ; Mitf Eq. PI. by Jeremy, 300, 301. The formal begin- ning of an answer accompanying a plea, is as follows : " And this defendant, not waiving his said plea, but wholly relying and insisting thereon, and in aid and §695-697.] PLEAS. 579 plea is not to the whole of the bill, but only to a part, the answer is commenced with the same protestation against a waiver of the plea, and with a declaration that it is intended to be only in an- swer to the rest of the bill, not covered by the plea.^ § 696. A plea is filed, like a demurrer, in the proper office ; and pleas in bar of matters in pais, must be upon oath of the defend- ant. But pleas to the jurisdiction of the court, or to the disability o^the person of the plaintiff, or pleas in bar of any matter of rec- ord, or of matters recorded, or as of record in the court itself, or in any other court, need not be upon oath.^ § 697. If the plaintiff conceives a plea to be defective in point of form, or of substance, he may take the judgment of the court upon its sufficiency. And, if the defendant is anxious to have the point determined, he may also take the same proceeding.^ Upon argument of a 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.* In the first place, the plea is determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the averments necessary to support it, are true.^ If, there- fore, a plea is allowed upon argument, or if the plaintiff without argument thinks it, although good in form and substance, not true in point of fact ; he may take issue upon it, and proceed to disprove the facts upon which it is endeavored to be supported. For, if the plea is, upon argument, held to be good ; or the plain- tiflf admits it to be so by replying to it ; the truth of the plea is the only subject of question remaining, so far as the plea extends ; and nothing but the matters contained in the plea, as to so much of the bill as the plea covers, is in issue between the parties.^ If, therefore, issue is thus taken upon the plea, the defendant must support thereof, for answer to the residue of the complainant's bill not herein before pleaded unto, or so much thereof as he, this defendant, is advised is in any case material and necessary for him to make answer to, he answereth and saith, that," &c. &c. " And he denies all combination," &c. &c. &c. Vanheythuysen, Eq. Draftsman, 440, 442. ' Ibid. ' Mitf. Eq. PI. by Jeremy, 301 ; Cooper, Eq. PI. 231, 232. » Ibid. • Mitf. Eq. PI. by Jeremy, 301, 302 ; Ante, § 693. 'Ibid. • Mitf. Eq. PI. by Jeremy, 301, 302; Hughes «. Blake, 6 Wheat. K. 463; The State of Ehode Island v. The State of Massachusetts, 14 Peters, R. 210, 257. 581)^ EQUITY ^tEAblNGS. ["{€3. XHI.: prove the facts it suggests. ^If he- fails in this proof,' SotKa-tj at the! hearing of the cause, the plea is t6 be no bar,'ahd' thfe -plea esfen^Js- to the discovery-sought by the-bill, the- plaintiff is not tb^ose' 1^16: benefit of that discoTery ;, but the court will order ^ the defendattt- to be examined on interrogatories, to supply-the ^ffeoi. But j if the defendant proves the^ 'truth of ^ the liiatter pleaded, the suit,- so! far as the- plea' extends, is- barred ;- -eVen though -the- plea ■^Is riot' goodj* either in point of form or of stibstaiice.^ Therefore, wJiefe'aP defendant pleaded a plirehasV for a valuable consideration,^ and omitted to deny notice of the plaintiff's title, and the plairitiffre-- plied ; it was determined, that thfr plea, although • irregulat, 'had bee»-Mmitled by tlie replication ■ to te good ; and thkt'the-fa^t of notice, not' being in issue, the defendant^' -proving wliat lie had' pleadfed, was entitled to have' the bill di'snjiBsed:^ .Linii.iij&i, I> *.!iv..[ -'698. If ,' upon . argument, the benefit of a plea;^is saved to' tJifiP hearing,' it is considered,' that'-^O fer as appears'td the court,' it- roay- be a defenceii;' but tha;t there May be matter disclosed in evidence,' Which Wiould -avoid it,' su'ppodrig the matter pleaded to be strictly- true ; add the courts therefore, 'will not^pfeeMd'e theqnestioh.s " 3i § &09. When: a; plea is tfrdere^ to «tand for an answer, it is mierely determined,- that it contains 'miatter^ which' ma;y be a de-' fende, or part of a defence; but tlmt; it is .n6t afull defence; or/ that it hasbeen informally offered i by way ofplea ;» or thatit has' not been properly supported 'by an answer, so 'tha^t the truth' of it is doubtful.*: I i For, if a plea -requires an, answer to support it, up(>tf argument of the plea the answer may- be read to co:unterprove the iiC'liilj e- 0l rS ,«;-'•"; -. lif ill iii'n.i.li i>0 '.■'■■^<<3c,n, . ilj ji.uj iii!iii.li-ii ihiiS ,1 Mitf. Eq. PI. b^ Jeremy, 302 ; Hyghes v. Blake, 6 Wheat R. 453j ,, , ■ -k^ ' Mitf. !Eq! PJ. ' fey Jeremy, 301 -'303 '; Cooper, Eq. Pi.' ,232, 233 ;" Harris a. ingiedew, 3 'P. Will. 94, 95 ; Bogardus vi' frinity Churcli,'4 Paige,' 11. T71S ; ■:i^nt'e,' §■6.62; Post, §805, 8p6.-,,,-.o;i s.,i} v ;-i bi»s-v oiU r,j- fivr.-c..:, -lo) .'{oyisiit rt(»:.-;L''. ■; ^, Mitf. Eq, PL by Jerepiy, 303 ; Cpoper, Eq. PI. 233. . Mr. Qooper has stated' the proposition, in the text some?rhat Jfaoip at large. " When,", says h^,, "th& benefit of the.'plea is saved to thp ,h,e,aj;ing, the decision- of,;^e caijse doesflot rest upon the truth of the matter of the plea; but the pla^nji^;may.aT(?id(_jt l)j( other matter, which he is at liberty to adduce. But if a plea is ordered .^pj^tMid for an answer, it is then cpnsidjeredi rnarely.as matter, which may cfpsllflvrte a defence in whole or in part, but that it is not a full defence, even thqpgJl tiie plaintiff should not produce, new maitter to obviate it, , A^ Ij^^^jjthieadiscBBsion of the question of the efficacy is not precluded by such an order, but ooJy fte inode of defencfe has been: determiijed tabg informal, awd. improper." , ;GtilU./;R)r. EQm.;a4.., -,-i ,. , ,.-;-.-irb/,s!:/U -lo ->-- vdl .'j I. '-'A :-; o.!>l ^, :>Jij;' -"iT * Mitf. Eq. PI. by Jeremy, 303 ; Orcutt v. Orms, 3 Paige, R. 459. .us 581 §697-700.] PLEAS, •^ CV..V. .X .oc uoicimaut appears not to have sufficient his nlea. hv his nnowai- +i,rv „i«„ j. i.. it or or- plea;^ and if the defendant appears not to have sufficiently sup- ported his plea by his answer, the plea must be overruled, or or- dered to stand for an answer only .2 A plea is usually ordered to stand for an answer, where it states matter, which may be a de- fence to the bill, although perhaps not proper for a plea, or infor- mally pleaded. But if.a plea states nothing which can be a defence, it is merely overruled.^ If a plea is ordered to stand for an an- swer, it is allowed to be a sufficient answer to so much of the bill as it covers, unless, by the order, liberty is given to except.* But that liberty may be qualified, so as to protect the defendant from any particular discovery, which he ought not to be compelled to make. And, if a plea is accompanied by an answer, and is or- dered to stand for an answer, without liberty to except, the plain- tiff may yet except to the answer, as insufficient to the parts of the bill, not covered by the plea.^ If a plea, accompanied by an an- swer, is allowed, the answer may be read at the hearing of the cause to counterprove the plea.^ § 700. There are some pleas which are pleaded with such cir- cumstances, that their truth cannot be disputed ; and others, being pleas of matter of fact, the truth of which may be immediately as- certained by mere inquiry, it is usually referred to one of the mas- ters of the court to make the inquiry. These pleas, therefore, are not usually argued. Thus, pleas of outlawry, or of exconimuni- cation, being always pleaded sub sigillo, the truth of the fact pleaded is ascertained by the form of pleading ; and the suit is consequently delayed, until the disability shall be removed ; unless the plaintiff can show, that the plea is defective in form ; or, that it does not apply to the particular case ; and for these purposes he may have the plea argued. '^ Pleas of a former decree, or of an- other suit depending, are generally referred to a master to inquire into the fact ; and if the master reports the fact true, the bill stands • Ante, § 690. » Mitf. Eq. PI. by Jeremy, 303 ; Hildyard v. Cressey, 3 Atk. 304. ' Mitf. Eq. PI. by Jeremy, 303. *'Mitf. Eq. PI. by Jeremy, 304 ; Sellon v. Lewen, 3 P. Will. 239 ; Maitland v. Wilson, 3 Atk. 814 ; Orcutt v. Orms, 3 Paige, K. 459 ; Leacroft v. Dempsey, 4 Paige, K. 124 ; Beall v. Blake, 10 Geo. 458. ' Mitf. Eq. PL by Jeremy, 304. • Mitf. Eq. PI. by Jeremy, 303, 304 ; Cooper, Eq. PI. 233 ; Souzer v. De Meyer, 2 Paige, R. 574 ; Ante, § 690. ' Mitf. Eq. PI. by Jeremy, 304, 305. 49* 582 EQUITY' PtEADINGS. L '""[«£' XI^. instantly dismissed, unless ' the court otherwise ■ order^'. ' ■ Bilt th!e -plaintiff ikay -excejit to the iaastfe'r's; report, and bririg oiiithe'imat- ter tdfeearguM before the- coart J And if hfl conceives thei plea to be defecti'v-e^ in point <3f form, 'or otherwise, ind^pelidsul Of^the inete truth ' of thel fact plekded, he' may-set dowh the iplek to; be argued, as in the'C&se of'pleas in' general;^ '■ ■■''-'■ i^-l'i '.-■-« ■§'701. Pleas also may- in' sotke -cases ■be; amended;' asiwhelie there has been' anevident slip or mistake, and'the- maierial'igfoattd of defence seeibs -tbthe court to be good. 'Yet the court always •expects to be told precisely, what the'almejidment 'is to tfe,'>attd 'how the slip happened, before it will allow the amendmentito take place.' The defendant 'will- also be tied dowii; to a short time^iu which to amend.^ ' And in a case, in which a plea seemed in^apa- -hle ' of amendment, the defen dan t' had « leate to ' ^iih&ta'W his i p'leS, and 'to plea 6?e'Wo«0;-in a fortnight.^ • Wher^ a. 'plea is cleairly ^Jood in substance, but is- objectionable in pointoffoi-mi, as nbt conclud- ing either in bar, or otherwise, leave will sometimes ^be^ given to amend the plea;* ■ i'l ■"''i- i: ^''''^ " ' -''-'• ■--■■'■■^ ^''■'' nmin .!. in) ,• 'o o/;i : " -.'i -'■ '^ 3i iL^l!l C H AFTER- XI Y. ■:_; '>•' i..' ■■ ,. ':, IT : ,:i J i 1 1 1 i .t ;,;!,; .■PMAS^.TO RBLIE^,, 702. Statement of points to jbe discussed. '3. First as to original bills ; ' '(2)'bills not origia^l. [*< V 703: ' ' 4 7b4l Answer to relief, generally defeii^s discovery. . f;i- ii,'^ li'in i.i ;'i * i §-705ii Pleas .to jurisdietion,, person,, f/apj^ of hill,^nd;il( IjaJ. !,,_, ; <,,,j .. „ „§i796, Pefinitions of , these different pleas. - , .' ' . §707. Classification of exceptions in civil law.' '" ' ~'' ' ' : ' '' ' '■ ' ' '§'708. Order of {jfleas in equity. ' "1.;.":M'l ,1',i ,ii,::i;-',: ,,'- ; :,' ''§ 709. : 'The ^Similarityi between,; dejnwre'rs to pleas, and Ml?-: ,1 1. : ,:..:i I , : § 710. Different pleas to jurisdiction. §711. Pleas that no court has jurisdiction. "' § 712, 713. Staiiner of pleading to jurisdiction coiitinued. 'ill i §714. Pleas to jurisdiction of particular court. 1 i _!■■•' 1 ! 'i .1 ,. ;! '§'715. Mana«r of pleading to juidBdictioillof'paaiCul^r., court, .i il ,1 ; "■>.':■ ". ' -■>" J '.■' ■ ' -: .1 ■■■'. '\ , .,,'"i~' > 1'n > ' ■ ■ 1 Mitf. Eq. Pi. by Jeremy, 304,'303|, , , > > | , , ' Cooper, Eq. PI. 234; Newman "ti. #alli^, 2 Bro.' Cji.'R'.' 143, 14!^; Merre- ■yre^ther i7.,Mellis,h, 1? Ve^. 435, 43,9; ,Ii(Iitf, Eq. pl!'b;y^^ Jeremy, ■2'^1, note ; Id. 324, note; Crease «. BalDCock^ 10 Metcl 527; Wood v. Strickland, 2 Ves. &B. 157. ,„' , ,,',"''"'■' ■'_■•' --'■-;;■■■ ' Ibid. * ibiti^" " ' ■ " ■ ^^' ^^'^J PLEAS To RELIEF, ■5583 § 7 1 6. Where no court of equity has jurisdietion. §717. Courts of equity haYe no jurisdiction over Inns of Court § 718. How far ousted by jurisdiction of visitors. § 719. Plea that one joint plaintiff has Doiinterest. § 720. Where the court has only limited equity powers. § 721. Pleas to the jurisdiction in United States courts. § 722. Enumeration of different pleas to the person. §723. Form of pleas of attainder; § 724. Pleas of alienage. § 725. Disabilities pfeadable in abatement; § 726. Pleas of bankruptcy and insblvency. § 727. Pleas denying plaintiff ^s claim of character. § 728, 729. Those showing defect in plaintiff's title. § 730. Cannot plead defect appearing on face of bill. § 730 a. The extent of title in plaintiff not always essential. §731. Want of privity sometimes shown by ptea. ' ' § 732, 733. Defendant may dSny character, in which sued, by plea. '■ § 734. Interest of defendant denied by plea. , 1 , §735. Plea to frame of the bill. - § 736. Plea of the pendency of another suit. § 737, 738. The form of such plea. § 739. The two suits must be able to answer the same end. § 740. Bill in behalf of numerous body, mode of procedure. 1 - : §741. Pendency of suit in foreign court no objection. , i § 742. Plaintiff compellable to elect between suit in' equity and at law. ! : § 743. Plea of another suit, how disposed of. i § 744. Defendant cannot test both the truth and form of the plea. § 745. Plea for want of parties to bill. § 745 a. Structure of bill may preclude such plea. §746. The plea of multiplicity of suits. §747. Plea of multifariousness. . , ,- ', i §748. Pleas in bar, or peremptory exoeptionsj § 749. Different kinds of pleas in bar! § 750. Statutory bars. § 751. The statute of limitations. § 752. The form of pleading it. § 753. Exceptions to the statute. § 754. Form of pleading, where bill contains some matter of excuse. § 755. Plea of statute to bill against setting up outstanding term. § 756. Not a peremptory bar, in courts of equity, unless jurisdiction concurrent. § 756 a. Lapse of time alone will bar, even express trusts. § 757. And equity applies the legal bar of the statute unless there is some excuse. § 758. How the matter applies to the right of presentation to church living. § 759. Application to rent charge. - . § 759 a. Lapse of twenty years will bar judgment. § 759 6. General direction of testator for payment of debts will not remove bar. § 760. Statute need not be specially pleaded where facts appear in bill. § 761. Statute of frauds may bft pleaded in bar. § 761 a. Must be specially urged, in most cases. § 762. Where biU states contract in writing, plea of denial not proper. § 763. Where answer admits parol contract, may insist upon statute. § 764. Matter of excuse, in bill, must be specially answered. 584 EQUITY PLEADINGS. [CH. XIV. § 765. How parol trust affected by statute of frauds. § 766. How far the statute is an answer, if the trust is admitted. § 767. Fraud, or charity, will render parol trust effectual. .: _. . § 1703. In our .subsequent irtquiries respecting ithe different ki-nd^of defendesy which may be taken by plea, the same method will, be ;observ©d, as has been already- pursued in regard to deJ murrers.^ In the first place, then,, we shall consider the appror. priate pleas, as matters of defence, to original bills; and next,. liiosB to bills not original. ' . • § 704. Original bills^ so far as the present inquiries are con- cerned,' are either bills praying for relief. Or bills not praying for relief. A plea may either be to the relief, or to the discovery, or to.,)?ptb. If th^ plea is, good to thQ relief, it is held in England (perhaps it is or may be different .in America^) to, be. good to the discovery also by the bill ; in like manner as a demurrer, which is good to the relief, is held to be good to the discovery.* If, how- ever, instead of a plea to the relief and discovery in stch a case, the defendant puts, in a plea to the relief only, he professes that he will give the discovery, and he must give it.^ , :- f 705v: First, then, let tis consider those pleas, which constitute an appropriate defence to bills for relief. These may be divided into four kifads. ' (1.) Pleas to the jurisdictioti ; (2.) Pleas to the person ; (3.) Pleas to the frame or form of the bill; (4.) Pleas inbar.tQ the bill.^ ^ Aite, §439, 55», note, 647; Mitf. Eq. PI. by Jeremy, 233, 234; Coaper, Eq. PI. 235; Cozine U.Graham, 3 Paige, R. 177. • ! ' *'Aiite, § 440, 446. ' '■ ' ' , , , ' ^- ' » Ante, §-312, 441-; Post,'§ 751, note.' - - * Ante, § 312 and note, § 545, 546 ; Cooper, Eq. PI. 117, 236. ^ ' Kin^u. Heming,'9 Sim. R. 59.' ■ '• - ' ' • Mr. Beames (PI. in Eq. 53) has proposed- ^a similar classiiacation. " We 586 EQUITY PLEADINGS. [CH. XIV. § 706. Those pleas, which are commonly termed pleas to the jurisdiction of the court, do not dispute the rights of the plaintiff in the subject-matters of the suit, or that they are fit objects of the cognizance of a court of equity; but simply assert, that the court of chancery is not the proper court to take cognizance of those rights.^ Pleas to the person of the plaintiff, also, do not dispute the validity of the rights, which are made the subject of the suit ; but they object to the plaintiff, that he is by law disabled to sue in a court of justice ; or, that he cannot institute a suit alone ; or, that he is not the person he pretends to be ; or, that he does not sustain the character he assumes.^ Pleas in bar are com- monly described as allegations of foreign matter, whereby, suppos- ing the bill, as far as it is not contradicted to be true ; yet the suit, or the part of it to which th^ plea extends, is barred.^ This description is plainly applicable only to what are called pure pleas. In our subsequent inquiries, the other class of pleas in bar (pleas not pure) will be equally included.* should observe,'' says he, "that pleas in equity have generally been classed under three heads ; 1st, to the jurisdiction ; 2dly, to the process of the plaintiff or defendant ; and 3dly, in bar ; whilst pleas at law have been usually arranged under five heads ; 1st, to the jurisdiction ; 2dly, to the person of the plaintiflf or defendant ; 3dly, to the count ; 4thly, to the writ ; and 5thly, in bar, or to the action. And, as each subsequent plea at law abandons the preceding plea, if the order of pleading be inverted, the defendant loses the advantage of the plea, which he had an anterior right to ; for ordine placitandi servato, servatur et jus. It is not, perhaps, absolutely necessary to consider, whether there are any pleas in equity which correspond in strictness with pleas to the count, or pleas to the writ, or whether there are not some demurrers in equity, which are analogous in principle to such pleas at law. But the distribution of all pleas in equity just alluded to, is certainly not correct ; and the consequence of that distribution has been, that some pleas in equity, which unquestionably could not, with pro- priety, be described as falling under either of these three heads, have been thrust into one or other of them. In the present work, therefore, although the three heads, under which pleas have been generally arranged, will be adopted as classes of distribution, another, or fourth class, will be added to them, namely, of pleas not properly falling under any of those three heads, and which, for the sake of distinction, may be termed pleas to the bUl. And as such pleas to the bill are both analogous and equivalent to pleas in abatement at law, they will be discussed after pleas to the person, and previously to pleas in bar to the relief." Lord Redesdale has included the last two classes under the head of pleas in bar. (Mitf. Eq. PI. by Jeremy, 219, 220.) But Mr. Beames's division is manifestly more correct. 1 Mitf. Eq. PI. by Jeremy, 221 ; Beames, PI. in Eq. 56 - 60. ' Ibid. ' Mitf. Eq. PI. by Jeremy, 221. ' Wigrana on Points of Discov. 35, 37, 40, 45, 50, 1st edit. ; Id. 57 - 78, 2d edit. § 706 - 708.] PLEAS TO RELIEF. 587 § 707. This classification of pleas bears a strong analogy to that which IS known in the civil law. In that law, exceptions^ were commonly divided into two kinds, dilatory and peremptory. ^ Ex- ceptionesaut perpetucB et peremptorice sunt, aut temporales et dila- tana. Peremptory exceptions were a perpetual bar. Perpet; uce atque peremptoricB sunt, quce semper locum habent nee evitari pos- sunt? Dilatory exceptions were those which were temporary in their nature and operation. Temporales atque dilatorim sunt, quce non semper locum habent, sed evitari possunt.^ But the more exact division of exceptions is into three kinds ; (1.) declinatory, corresponding to our pleas to the jurisdiction ; (2.) dilatory, cor- responding to our pleas to the person; and (3.) peremptory' cor- responding to our pleas in bar; quae perimunt jus actorish The two former were always put in before the suit was put in contestation, ante litem contestatam. ; for they were before the praetor, as reasons, why he should not proceed in the cause to assign judges for its decision.^ § 708. All declinatory and dilatory pleas in equity are properly pleas, if not in abatement, at least in the nature of pleas in abate- ment; and, therefore, in general, the objections, founded thereon, must be taken ante litem contestatam by plea, and are not avail- able by way of answer, or at the hearing.^ And it has been said, ' Dig. Lib. 44, tit. 1, 1. 2. ' Ibid. 1. 3; Ante, § 650. ' Dig. Lib. 44, tit. 1, 1. 3. In the Institutes we have similar definitions. Ap- peUantur autem exceptiones alioe perpetuoe et peremptorice; alia temporales et dUa- iorice. Perpetuce et peremptorice, quce semper agentibus obstant, et semper rem, de qua agitur, perimunt. Temporales, atque dilaiorice sunt, quce ad tempus nocent, et temporis dilationem tribuunt. Just. Inst. Lib. 4, tit. 13, § 8-10. * Gilb. For. Eom. 50, 53 ; Voet ad Pand. Lib. 44, tit. 1, § 4; Beames, PI. in Eq. 56, 57. ° Gilb. For. Kom. 50, 53 ; Pothier, Pandect. Lib. 44, tit. 1, note (10), and the passages there cited. » See Gilb. For. Kom. 50, 51, 53, 54 ; Beam. PI. in Eq. 55-57. Mr. Beames, (PI. in Eq. 57-60,) speaking of pleas in equity of a declinatory and dilatory nature, says : " In the Practical Register, a plea to the person is called a plea in abatement in equity; on which it has been remarked, that the propriety of this has been much doubted, referring to the passage in Mr. Vesey's Reports. It is there stated, ' that the distinction between pleas in abatement, and pleas in bar, was very little known ; and that Lord Thurlow had said, he did not know, what a plea in abatement in equity was.' The Practical Register certainly uses the term plea in abatement, as a term well known in equity; and it occurs in a number of other books, some of which are of considerable reputation. Lord TgS8 EQJirrEY PMADIMGS. [ ?OT[-€HJilJlr. rthat pleas of these several kinds may be. successwely!^leai3eS,.one ;afteT another, in theiB proper ordet ;.ithateis toisajj iir-st-,idecliha- -tbty pleas ; ; secopdlyf dilatory pleas y^ andy ■ thiriMj?,' vplea^ i iin ; haxi^ Hardwiqke, in, the passages we, have just quoted,, uses it ,as familiar tp, his hearers. The Attorney-General, in, the anonymous case iiJ ffitbsely, employs it In a similar 'manner. And, what is more remarkAhle, Lbrd ' "fhiiTloW himself' repeatedly uses the term 'plea in abatement,' in contradiStihctioB'tC) a plea^m bafylh'the cases, of Newman v. "Wallis, and- Gun D.PSor, a»(ijackapwl»%ga;ias)gteoiiglyl»s languagp.ean apjinowledge, the strong, hues .gf disti^^ction^het^eei^rthpm,., ^t,Ji^s bgensE^id, that arplesi in equity to the person is, more properly in ^the^ nature ^of a plea in abatement. It is not necessary to discusi this distinction; but it may "merely be remarke'd, that Lord' Redesdale, ili speiikin^ of certaJri'^leas 'to'me "person, describes them, not a^ pfe&g tri the'nMtirfe t(f-;plea'siin abattenienlvbut fes "pleas in abatpm'en* .of the suit. • K it, be aecassairyi to;add anything more'On jthis s^bjecti it may, fee qbpel"Wi,ifJiaj;; in a w(>i|k onpl^ading; at Ia;s7,.,plea(^i41'e , thus, described:, "Pleas are., of twp,, sorts, in abatement and in bar ; the former question the propriety of the remedy, or legal sufBeiency of the process, rather than deny tbe cause of action ; 'the latter dispute the Very cause' of action itself." It is impossible to read this passage, without perceiving, iiow perfectly' apjffikfsble "it is to pleas in equity, and- how sfrorigly appropriate, as liarkin^ithe. 'distinction -between pleas' to the jurisdiction, to the person, :^nd,jto, fha biU,'aii Mitf. Eq. PI. by Jeremy, 222. » Mitf. Eq. PI. by Jeremy, 222, 223 ; Armitage v. Wadsworth, 1 Madd. R. 189, 195 ; Cooper, Eq. PI. 238, 239. Lord Redesdale, in his text, p. 223, adds : "No authority, however, occurs to support such a plea; and as there is littie disposition in the courts of equity to countenance those defences, which tend to prevent the progress of a suit to a hearing in the ordinary way, whatever the expense of the proceeding may be, it would hardly be prudent to endeavor thus to put a stop to an attempt to transfer the jurisdiction of a suit from the ordi- nary courts to a court of equity. And, indeed, the guard put upon cases of this kind, by requiring the affidavit of the plaintiff of the truth of the matter, which he alleges by his bill, to support the jurisdiction of*e court, is hkely to prevent any abuse upon this head." But in Armitage v. Wadsworth 1 Madd. R. 195, the doctrine of Lord Redesdale, in the text, was recognized, and apphed to an analogous case. tvt.jj p » Mitf. Eq. PI. by Jeremy, 222, 223; Armitage v. Wadsworth, 1 Madd. K. 189, 195 ; Cooper, Eq. PL 238, 239. * Mitf. Eq. PI. by Jeremy, 223. 592 EQUITY PLEADINGS. [CH. XIV. ty Palatine ; or where the defendant claims the privilege of a university, or other particular jurisdiction.^ § 715. Where the suit is brought in a superior court of general equity jurisdiction, nothing will be intended to be out of its juris- diction, except what is shown to be. It is requisite, therefore, in a plea to the jurisdiction of the court to allege, that the court -lias not jurisdiction of the subject, and to show by what means it is deprived of jurisdiction.^ It is lii^ewise necessary to show what court has jurisdiction. If the plea does not properly set forth these particulars, it is bad in point of form. In point of substance, it is necessary to entitle the particular jurisdiction to exclusive cognizance of the suit, that it should be able to give a complete remedy .2 A plea, therefore, of privilege of the University of Ox- ford to a bill for a specific performance of an agreement touching lands in Middlesex, was overruled ; for the University Court could not give complete relief.* And if a suit is instituted against differ- ent persons, some of whom have privilege, and some, not ; or if one defendant is not amenable to the particular jurisdiction ; a plea will not hold.^ So, if there is a particular jurisdiction, and yet the parties, who are to litigate any question, are both resident within the jurisdiction of the court of Chancery, a plea to the ju- risdiction will not be sustained.^ Thus, upon a bill concerning a mortgage of the Island of Sarke, but the mortgagor and the mort- gagee residing in England, the court of Chancery will hold juris- diction of the cause ; for a court of equity agit in personam.'' So, where tlie court may not have jurisdiction to give relief, it may yet entertain a bill for a discovery in aid of the court, which can give ' Mitf. Eq. PI. by Jeremy, 223, 224 ; Cooper, Eq. PI. 239, 240 ; Beames, PL in Eq. 79-87; Ante, § 486. Mr. Cooper (Eq. PI. 240) says: "It was formerly the rule, that a defendant could not demur, because the jurisdiction was in an- other court of equity ; for a demurrer is always in bar, and goes to the merits of the case ; and therefore that it was informal and improper in that respect ; but that the defendant should always plead to the jurisdiction. But it has been since laid down, that if it appears on the face of the bill, that another court of equity has the proper jurisdiction, the defendant may demur ; although such demurrers are very rare, because the objection can hardly sufficiently appear on the bill, and therefore must be pleaded." ' Mitf Eq. PI. by Jeremy, 224, 225. ' Ibid. « Ibid. " Ibid. « Mitf Bq. PL by Jeremy, 224, 225. ' Mitf. Eq. PL by Jeremy, 224, 225; Beames, PI. in Eq. 88, 89, 91-94; Cooper, Eq. PL 241 - 243 ; Ante, § 487, 488. §714-718.] PLEAS TO RELIEF. 593 relief, if the same discovery cannot be there obtained ; as if the ju- risdiction be in the King in Council, where the defendant cannot be compelled to answer upon oath.^ § 716. In regard to the fourth head, it is to be observed, that courts of equity have no jurisdiction, where by the constitution or laws of the country the subject-matter is exclusively appropri- ated to some other court of justice, or to some other special tribu- nal. Thus, for example, courts of equity have generally no juris- diction in cases, which ordinarily belong to the jurisdiction of courts of common law ; or to the ecclesiastical courts ; or to the courts of Admiralty or Prize.^ If the objection is apparent on the bill, it may be taken by demurrer ; if not apparent, it may be taken by plea.^ § 717. So, courts of equity have no jurisdiction, where the sub- ject-matter in dispute is chambers in an Inn of Court, the jurisdic- tion being in the Benchers.* But although the property in cham- bers in an Inn of Court cannot be made the subject of a suit in the court of Chancery, or indeed, in any court, yet a plea to the juris- diction in such case will be good ; because the proper jurisdiction can be pointed out by the plea. Thus, where a bill was filed for the specific performance of an agreement stated in the bill, relative to the renewal of a grant of chambers in Gray's Inn ; a plea, tbat Gray's Inn is a voluntary society, governed by Benchers, subject to an appeal to the judges, was, upon argument, held a good plea, and allowed accordingly ; although it was admitted, that there was no instance of any of the courts exercising jurisdiction over the property or discipline of the Inns of Court.^ § 718. Similar to a plea to the jurisdiction is the case of a plea to an information, charging an undue election of a fellow of a col- lege in one of the universities, " That by the statutes, the visiter of the college ought to determine all controversies concerning elec- tions of fellows, and that such controversies ought not to be deter- ^ Mitf. Eq. PI. by Jeremy, 224, 225. ' Beames, PI. in Eq. 76 - 78 ; Ante, § 490 -;492. » Ante, §711. * Beames, PI. in Eq. 78. ' Cooper, Eq. PI. 238. A plea of this sort actually put in by the Benchers of Gray's Inn, and allowed by Lord Thurlow in Cunningham v. Wegg, 2 Bro. Ch. K. 241, will be found at large in Mr. Beames's PI. in Eq., Appendix, p. 324 - 328. 50* 594 EQUITY PLEADINGS. [CH. XIV. mined elsewhere." ^ But the extent of fde visiter's authority must be averred, and it must also be averred, that he is able to do com- plete justice. And where there is a trust created, the visiter hav- ing no power to compel performance of the trust, relief must be had in the king's courts of general jurisdiction.^ § 719. Upon similar grounds, if one of two plaintiffs has no in- terest in the subject-matter of the suit, the objection may be taken by plea ; and such, a misjoinder will be a good defence to the whole suit.^ § 720. In cases of a bill brought in a court of equity of a limit- ed jurisdiction, as to persons, or as to subject-matter, if the bill should allege all the necessary facts to establish and support that jurisdiction, the defendant may also negative the existence of those facts by a plea to the jurisdiction. Courts of equity jurisdiction of a limited nature, are not infrequent in those states in America, which have not established a general jurisdiction.* Thus, for ex- ample, in Massachusetts, equity jurisdiction is given to the Su- preme Court of the State in cases of partnership.^ In case of a suit brought in that court by one asserted partner against another, al- leging the partnership, there can be no doubt, that it would be a good plea to the jurisdiction to negative the partnership. But how far, in such a case, an answer in support of the plea would be ne- cessary or proper, must depend upon the structure of the bill, and the peculiar local jurisprudence. ^ Mitf. Eq. PI. by Jeremy, 225, 226 ; Beames, PL in Eq. 95 ; Attorney-General V. Talbot, 1 Ves. 78; S. C. 3 Atk. 662; Cooper, Eq. PI. 240, 241. " Ibid. ' Makepeace v. Haythorne, 4 Russ. E. 244. * This is true, for example, in Massachusetts, and New Hampshire, and Maine, and Pennsylvania. Quiere, whether such an exception ought not to be taken by plea ; or whether it can be insisted on in a general answer ; since such an answer would seem to admit the jurisdiction ? Lord Hardwicke's doctrine in Green v. Kutherforth, 1 Ves. 371, seems the other way. But that doctrine was applied, not to a superior court, but to courts of a private, particular, and limited jurisdiction. Even with this restriction, Mr. Beames doubts its correct- ness. Beames, PI. in Eq. 96, and cases there cited. The Supreme Court of the United States have made a distinction between superior courts of limited juris- diction and inferior courts of limited jurisdiction ; affirming the judgments of the former not to be nullities, even if jurisdiction is not apparent on their proceedings. Kemp's Lessee v. Kennedy, 5 Cranch, 173; Turner's Administrator v. Bank of North America, 4 Dall. K. 8. [* * The Supreme Judicial Court of this state now possesses full equity powers.] §718-722.] PLEAS TO BELIEF. 595 § 721. Bills in equity in the courts of the United States, present an illustration of a somewhat different nature. By the constitu- tion and laws of the United States, the Circuit Courts are invested with general equity jurisdiction in cases between citizens of differ- ent states ; but ordinarily they have no such jurisdiction in cases between citizens of the same state.^ In cases, therefore, where bills in equity are brought in the Circuit Courts, founded upon the supposed different citizenship of the parties, the citizenship of each party, as plaintiff and as defendant, must be distinctly alleged in the bill ; otherwise the bill will be dismissed for want of jurisdic- tion. And the exception may be taken advantage of by demurrer, or by motion.^ But if, upon the record, there are distinct aver- ments of the citizenship of the plaintiff, and of that of the defend- ant ; so that upon the face of the bill the jurisdiction attaches ; the defendant, if he means to contest the alleged citizenship, must do it by a plea to the jurisdiction. For he is not at liberty to put the citizenship in issue by a general answer ; as such an answer admits the jurisdiction of the court to inquire into the general merits of the suit, and puts them in issue.^ § 722. Secondly; pleas to the person. Pleas to the person do not necessarily dispute the validity of the rights, which are made the subject of the claim ; but they object to the ability of the par- ties to sue, or to be sued.* They are of two kinds : (1.) Pleas to the person of the plaintiff; and (2.) pleas to the person of the defend- ant. In the former kind, the following pleas are usually includ- ed, viz. : (1.) of outlawry ; (2.) of excommunication ; (3.) of Popish recusant convict ; (4.) of attainder ; (5.) of alienage ; (6.) ■ of infancy ; (7.) of coverture ; (8.) of idiocy or lunacy ; (9.) of bankruptcy or insolvency ; (10.) of the want of the character, in which the plaintiff sues. Of the latter kind is the plea, that the defendant does not possess the character, in which he is sued ; ' Ante, § 492. There are some exceptions; such as cases in equity under the patent laws, and the copyright laws, and other cases of a peculiar nature. ' See Bingham v. Cabot, 3 Dall. R. 382 ; Turner's Administrator v. Ennlle, 4 Dall R 7 ; Turner's Administrator v. Bank of North America, 4 Dall. R. 8 ; Abercrombie .. Dupois, 1 Cranch, R. 343; Sullivan .. Fulton Steamboat Com- pany, 6 Wheat. R. 450; Capron v. Van Noorden, 2 Cranch, R. 126; Straw- bridge V. Curtiss, 3 Cranch, R. 267 ; Ante, § 492. » Livingston v. Story, 11 Peters, R. 351, 393; Dodge v. Perkms, 4 Mason, R. 435. ♦ Beames, PI. in Eq. 99 ; Ante, § 493, 494. 596 EQUITY PLEADINGS. • [CH. XIV. such, for example, as that the defendant is not 2, feme sole, or not heir, or executor, or administrator, &c. ; in which character alone the suit is maintainable against the defendant.^ Every plea of either of these kinds is in the nature of a plea in abatendent.^ § 723. The three first of the pleas to the person of the plaintiff are generally unknown in America, and of very rare occurrence in England in modern times ; and it seems wholly unnecessary to dwell on them in this place.* The fourth, a plea of attainder, is also of rare occurrence ; and a plea of this sort in equity would probably be construed with the same strictness, as the like plea is at law.* Thus, where ta a bill for an account of personal estate, the defendant pleaded a stated account and conviction of man- slaughter ; and the plea stated, that in October, 1728, in Gallo- way, A gave a mortal wound to B, of which he languished and died, (but did not say in what part B received the wound \) that it was tried at the assizes of Galloway, (but did not say, that the persons who tried it, had a commission of gaol delivery, or that they were justices of oyer and terminer ;) the court held the plea to be insufficient, and overruled it. The reasons assigned were, that in the plea, the jurisdiction ought to have been set forth, and that the judges had a right to try the cause ; for, otherwise, it will not be strong enough to forfeit personal estate. And things of this kind cannot be taken to a common intent ; but the plea must be judged of with the same strictness, as if it was a plea at common law.^ § 724. The fifth plea is alienage of the plaintiff. This of course is generally inapplicable, unless the suit respects lands, or the plaintiff is an alien enemy ; for an alien, who is not an alien ene-" my, is under no disability to sue for any personal demand in a court of equity. There are, indeed, some circumstances, under ' Beames, PI. in Eq. 99-132; Cooper, Eq. PI. 243 ; Ante, § 493-496 ; Id. § 51, 56, 57, 61, 64, 67, 68. "^ Mitf. Eq. PI. by Jeremy, 224 ; Cooper, Eq. PI. 242 - 250. ' Wyatt, Pr. Reg. 326, 327 ; Gilb. For. Rom. 53, 54 ; Cooper, Eq. PI. 243-245. The nature, and the form, and the proceedings belonging to these pleas, will be found stated in Mitf. Eq. PI. by Jeremy, 226 - 229 ; Beames, PI. in Eq. 100 - 109 ; Cooper, Eq. H. 243 - 245. As to the plea of outlawry, see The Attorney Sewell V. Rickards, 8 Beavan, R. 380. • Mitf. Eq. PI. by Jeremy, 229, 233 ; Cooper, Eq. PI. 245, 246 ; Beames, PI. inEq. 109-111. ' Cooper, Eq. PL 245, 246 ; Burk v. Brown, 2 Atk. 399. §722-726.] PLEAS TO relief. 697 which even an alien enemy is permitted to sue ; as, wliere he is here under the license, protection, and safe conduct of the gov- ernment.^ § 725. In relation to the pleas of infancy, coverture, idiocy, and lunacy of the plaintiff, it needs only to be observed, that if a bill is filed in the name of any person incapable alone of instituting a suit, such as is the case of an infant, a married woman, an idiot, or a lunatic, (so found by inquisition, and under guardianship,) the defendant may plead such disability in abatement of the suit.2 § 726. As to the ninth plea, that of bankruptcy and insolvency of the plaintiff, a few words may suffice. The plea is perfectly good, where the subject-matter of the suit has, by the bankruptcy or insolvency of the party, become vested in the assignees.^ It is • Mitf. Eq. PI. by Jeremy, 229 ; Cooper, Eq. PI. 246, 247 ; Beames, PI. in Eq. 112 - 115 ; Ante, § 51 - 56 ; Wyatt, Pr. Reg. 327. The following form of a plea of an alien enemy is given in Beames, PI. in Eq. p. 337 : — " This defendant by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant's bill of complaint mentioned and contained to be true, in such sort, manner, and form, as the same are therein and thereby stated, charged, alleged, or set forth, doth plead thereunto ; and for plea thereunto saith, that the said complainants are aliens, born in foreign parts, out of the allegiance of our lord the King, (that is to say,) the said complainant, Charles Albrecht, in the territory of Saxony, and the said complainant, Charles Delbruck, in the ter- ritory of Westphalia ; and that the said complainants, long before and at the time of exhibiting their said bill of complaint against this defendant, were, and now are, enemies of our lord the King, voluntarily inhabiting, and dwelling, and car- rying on trade with the realm and territory of France, and within the allegiance, and under the government of the persons exercising the powers of government there ; and that the persons so exercising the powers of government there, then were and still are at war with, and enemies to our lord the King ; and that the said complainants then were, and now are, adhering to the said enemies ; and this defendant doth therefore plead the matters aforesaid to the said defendants' bill, and the relief and discovery thereby sought ; and he humbly hopes to be hence dismissed with his reasonable costs in this behalf sustained." This is the plea, which was used in Albrecht v. Sussman, 2 Ves. & B. 323, and was allowed by Lord Chancellor Eldon. A similar plea will be found in Vanheythuysen's Eq. Drafts. 448. * Mitf. Eq. PI. by Jeremy, 229, 230 ; Cooper, Eq. PI. 248 ; Beames, PL in Eq. 115-118 ; Wyatt, Pr. Reg. 326. See also Wartnaby v. Wartnaby, Jac. R. 378 ; Ante, § 56-67,495. ' Mitf. Eq. PL by Jeremy, 232 ; Bowser v. Hughes, 1 Anst. R. 101. See also Tariton V. Hornby, 1 Younge & Coll. 172; Ante, § 495, and the cases there cited ; 2 Daniell, Ch. Pr. 101, 102 ; Kirkman v. Andrews, 4 Beavan, R. 554. 698 EQUITY PLEADINGS. [CH. XIV. sometimes classed among pleas in abatement to the person.^ But, as it is, in effect a plea, that the plaintiff has no title, or that the title, which he had, has been transferred to others, it seems, so far as the plaintiff is concerned, to be a plea in bar. But it is so no further than he is concerned ; because it does not deny the right to sue, as existing in another person, nor dispute the valid- ity of the rights, which are made the subject of the existing suit.^ It seems, that in a plea of bankruptcy, all the facts and circum- stances, which are necessary to establish the sufficiency of the pro- ceedings in bankruptcy, and to show the party to be lawfully de- clared a bankrupt, must be specially set forth. It is not enough, in a plea of this sort, to allege that a commission of bankruptcy was duly issued against the plaintiff, under which he was duly found and declared a bankrupt.* It seems, however, not to be absolutely necessary, that the defendant should, in his plea of the bankruptcy of the plaintiff, allege all the necessary successive facts positively, or as within his • own knowledge. But he may allege, that he has been informed, and believes, that the plaintiff has become bankrupt, and then to state the facts in succession upon which the bankruptcy is rested ; for the defendant cannot be presumed to have any personal knowledge thereof.* § 727. As to the tenth plea to the person of the plaintiff, namely, that the plaintiff is not the person he pretends to be in his bill, or that he does not sustain the character which he as- sumes, although it is a negative plea, yet it is good in abatement of the suit.^ Thus, where a plaintiff sued in the character of administrator, a plea, that he was not administrator, was held ' Cooper, Eq. PI. 248. Mr. Beames says, that Lord Eedesdale places this plea under the head of pleas in abatement. Beames, PI. in Eq. 1 20. I do not find this to be correct. Lord Redesdale apparently places it as a plea in bar under his fifth head ; namely, that the plaintifi" has no interest in the subject, or no right to institute a suit concerning it. Mitf. Eq. PL by Jeremy, 220, 221, 231, 232. Mr. Cooper arranges it under the head of pleas to the person. It seems, that a plea of bankruptcy of the plaintifi" must be put in on oath. Joseph v. Tuckey, 2 Cox, R. 44; Mitf. Eq. PI. by Jeremy, 232, note (o). ' Beames, PI. in Eq. 119, 120 ; Tarlton v. Hornby, 1 Younge & Coll. 172. ' Carlton v. Leighton, 3 Meriv. R. 667 ; Beames, PI. in Eq. 118, 119. ' Kirkman v. Andrews, 4 Beavan, R. 554. See also Mitf. Eq. PI. by Jeremy, 297 ; Small v. Atwood, 1 Younge & Coll. 39 ; Drew v. Drew, 2 Ves. & Beam. 162 ; Poole v. Poole, Younge, R. 331 ; 2 Vanheythuysen, Eq. Drafts. 96. » Mitf. Eq. PL by Jeremy, 230; Beames, PL in Eq. 120, 121, 122; Cooper, Eq. PL 249, 250 ; Ante, § 496. § 726 - 728.] PLEAS TO relief. 599 good.i So where a plaintiff entitled himself as administrator in the bill, a plea, that the supposed intestate was living, was held good. So, a plea to a bill by a plaintiff, claiming as heir, that the plaintiff is not heir, has been held good.^ So, if a plaintiff should sue as a partner, a plea, that he is not a partner, would be good.* So, to a bill by a plaintiff, as a creditor of an estate, a plea, that he is not a creditor, and that the deceased was not indebted to him, would be good.5 So, if a person should sue as plaintiff, in the character of a widow, for dower, a plea of ne ungues accouple, that IS to say, a plea, that the plaintiff and her supposed husband were never lawfully joined in matrimony, would be a good plea.s So, to a bill, brought by an executor before probate of the will, a plea, that the will has not been proved, would be good.'' So, if a feme covert should sue alone in her own name, the coverture may be pleaded in abatement.^ So, a plea that the plaintiff, or one of the plaintiffs, is a fictitious person, or was dead at the commence- ment of the suit, would be a good plea in abatement of the suit.^ § 728. The principle of tlie plea may be properly stated in a more comprehensive form ; viz., the want of interest of the plain- tiff in the subject-matter. Interest in the subject-matter of the suit, or a right to the thing demanded, and a proper title to insti- tute the suit, are essentially necessary to maintain the bill. If the objection is apparent upon the face of the bill, it may, and indeed it ought to be taken by way of demurrer. But a title, apparently good, may be stated in a bill ; and yet the plaintiff may not really have the title he states ; either because he misrepresents himself, which has been considered under the last head, or because he suppresses some circumstances respecting his title, which, if dis- closed, would show, either that nothing was ever vested in him, or ' Ibid. See Ord v. Huddleston, 2 Dick. K. 510; S. P. 1 Cox, K. 198. ' Ibid. Sir Thomas Sewel, in Ord v. Huddleston, 2 Dick. R. 510, seemed to think this was a plea in bar, and not in abatement. See Beames, PI. in Eq. 122. ' Beames, PI. in Eq. 123-129. See 16 Ves. 264, 265; Ante, § GG8; Drew v. Drew, 2 Ves. & Beam. 159 ; Newman v. Wallis, 2 Bro. Ch. E. 143, and Mr. Belt's note; Hall v. Noyes, 3 Bro. Ch. K. 489. ' Sanders v. King, 6 Madd. R. 61 ; Drew v. Drew, 2 Ves. & Beam. 159. ] » Thring V. Edgar, 2 Sim. & Stu. 274. ' Poole V. Poole, 1 Younge, K. 331. ' Simons v. Milman, 2 Sim. R. 241. » Wyatt, Pr. Reg. 326. » Cooper, Eq. PI. 249 ; Beames, PI. in Eq. 122. 600 EQXnTY PLEADINGS. [CH. XIV. that the title, which he had, has been transferred to another ; and this defect the defendant may show by plea in bar of the suit.^ As, if a plaintiff claims as a purchaser of a real estate ; and the defendant pleads, that he is a Papist, and incapable of taking by purchase ; or if a plaintiff claims property under a title, which accrued previous to a conviction of himself, or of the person under whom he claims, of some offence, which occasioned a for- feiture ; or, if a plaintiff sets up a title, which accrued previous to his bankruptcy : this, or any other defective title to the matter, claimed by the bill, if the defendant by plea shows the defect, will be a good bar to the suit.^ § 729. A plea of conviction of any offence, which occasions forfeiture, such as manslaughter, must be pleaded with equal strictness as a plea of the same nature at common law.^ But, if a plea goes to show, that no title was ever vested in the plaintiff, although for that purpose it states an offence committed, a convic- tion of the offence is not essential to the plea, and the same strict- ness is not required, as in a case of forfeiture.* Thus, in the Ex- chequer, to a bill seeking a discovery of the owners of a ship captured, and the payment of a ransom, the defendants pleaded, that the captor was a natural-born subject, and the capture an act of piracy. Although the Barons at first thought, that the plea could not be supported, unless the plaintiff had been convicted of piracy, and the record of the conviction had been annexed to the plea ; yet they were finally of opinion, that as the plea showed that the capture was not legal, and that, therefore, no title had ever been vested in the plaintiff, the plea was good ; and they allowed it accordingly.^ Pleas of want of title, generally extend to discovery as well as to relief.^ § 730. It cannot often be necessary to make defence on the ground of want of title by. way of plea ; for if facts are not stated in the bill, from which the court will infer a title in the plain- tiff, although the bill does contain an assertion, that the plaintiff has a title, the defendant may demur ; the averment of title in ' Mitf. Eq. PL by Jeremy, 231, 232. ' Mitf. Eq. PI. by Jeremy, 232, 233 ; Cooper, Eq. PI. 166 - 170 ; Beames, PI. in Eq. 120-129; Ante, § 260, 261, 495,496, 508-510. ' Ante,-§ 723. * Mitf. Eq. PI. by Jeremy, 232, 233 ; Cooper, Eq. PI. 246 ; Beames, PI. in Eq. 110. ' Ibid. « Ibid. §728-732.] PLEAS TO RELIEF. gQl the bill being, not of a fact, but of the consequence of facts ^ Thus, where a plaintiff stated an incumbrance on a real estate of which he was devisee, and averred, that it was the debt of the' testator, and prayed that it might be paid out of the testator's personal estate, in ease of the real estate devised ; the defendant having pleaded, that the testator had done no act, by which he made it his own debt, the plea was overruled ; because whether it was his debt, or not, was matter of inference from the facts stated in the bill, and therefore the proper defence was by demurrer. Accordingly, the defendant afterwards demurred, and the demur- rer was allowed.^ [* 730 a. And it seems that general title to an estate in fee, or the equitable ownership of copyhold lands, will entitle such owner to maintain a bill to enjoin other parties from any unlawful use of the same, without regard to the extent of the positive injury thereby sustained. Thus where the lessee of coal mines under an estate had built a tramway for the transportation of the coal to the point where it was carried to the surface, and also transported other coal taken from mines upon an adjoining estate upon the same tramway, it was held the general owner of the estate might maintain a bill for an injunction against such use, without alleg- ing that the tramway was his property.^] § 731. In treating of demurrers, notice has been taken, that, although a plaintiff has an interest in the subject of a suit, and a right to institute a suit concerning it, yet he may have no right to caU upon the defendant to answer liis demands ; and it has been also observed, that this happens, where there is a want of privity of title between the plaintiff and defendant. It would, probably, be difficult to frame a bill, which was really liable to objection on this head, so artfully, as to avoid a demurrer. But, if such a bill could be framed, it should seem, that the defence might be made by plea.* § 732. In the next place, as to pleas in abatement to the per- ' Mitf. Eq. PI. by Jeremy, 233, 234. Where the plaintiff by his bill, showed that he had no interest, the defendant was allowed (the time for demurrer having expired) to plead a general release by the plaintiff. Stooke v. Vincent, 1 CoU- yer, R. 527. = Ibid. [*' Bowser v. Maclean, 6 Jur. N. S. 1220, reversing the decree of V. C. Stuart.] * Mitf. Eq. PI. by Jeremy, 234 ; Ante, § 513-518. EQ. PL. 51 602 EQUITY PLEADINGS. [CH. XIV. son of the defendant. Although persons, who are outlawed, and excommunicated, attainted, &c., cannot plead their own disabili- ties to a bill brought agaiiist them ; yet it will be a good plea in abatement, that the defendant is not the person he is alleged to be, or that he does not sustain the character which he is alleged to bear in the bill.^ Thus for exainple, if a defendant is sued as & feme covert, or as a feme sole, or as heir, or as executor, or admin- istrator, or as partner ; in every such case it would be. a good plea, that the defendant did not bear the character, which was so alleged in the bill.^ The like rule will apply to a defendant, who has be- come a bankrupt before the suit brought, and all his interest in the subject has passed to his assignees. But in many cases, he may still be a proper party.^ And if he has become bankrupt since the bill has been pending, then he may plead or show his bankruptcy, not as an absolute defence, but to show that his assignees should be parties.* § 733. It seems to have been considered as more convenient for a defendant, under these latter circumstances, to put in an answer, alleging the mistake in the bill, and praying the judg- ment of the court, whether he should be compelled further to answer the bill, but this, in fact, amounts to a plea, although it may not bear the title ; and a plea has been considered as the proper defence.^ ^ Mitf. Eq. PI. by Jeremy, 234, 235; Cooper, Eq. PI. 250; Beames, PI. in Eq. 129, 130. ' Mitf. Eq. PI. by Jeremy, 234, 235 ; Cooper, Eq. PI. 250 ; Beames, PI. in Eq. 129, 130; Sanders v. King, 6 Madd. R. 61 ; S. C. 2 Sim. & Stu. 279; Drew v. Drew, 2 Ves. & Beam. 159. See Griffith v. Bateinan, Rep. Temp. Finch, 334 ; Wyatt, Pr. Reg. 326. = Ante, § 397. * Langley v. Fisher, 10 Sim. R. 345. 5 Mitf. Eq. PI. "by Jeremy, 235, 309, 311, 312, 334; Cooper, Eq. PI. 250; Wyatt, Pr. Reg. 327. The following form of a plea by the defendaint, that he is not executor, is in Van Heythuysen's Equity Draftsman, p. 444 : — " His de- fendant, by protestation to all the discovery and relief sought and prayed by the complainant's said bill, and he, this defendant doth plead, and for plea he saith, that he, this defendant, is not executor or administrator in the bill mentioned, or the legal representative of the said B, which said representative or repre- sentatives ought to be made party or parties to the complainant's said bill, as this defendant is advised. All which matters and things this defendant avers to be true, and pleads the same to the said bill, and humbly demands the judg- ment of this honorable court, and humbly prays to be dismissed, with his reasona- ble costs." §732-735.] PLEAS TO RELIEF. 603 § 734. Upon an analogous ground, if the defendant has not that interest in the subject of a suit, which can make him liable to the demands of the plaintiff, and the bill alleging that he has, or claims an interest, avoids a demurrer, he may plead, the matter accessary to show that he has no interest, if the case is not such, that by a general disclaimer, he can satisfy the suit. Thus, where a witness to a will was made a defendant to a bill brought by the Keir at law, to discover the circumstances attending the execu- tion ; and the bill contained a charge of pretehce of interest by the defendant; although a defnurrer for want of interest was over- ruled, because it admitted the truth of the charge to the contrary in the bill ; yet the court declared an opinion, that a defence might have been made by plea.^ § 735. Thirdly ; pleas to the bill, or frame of the bill. Such pleas diflfer from pleas to the jurisdiction, as they do not dispute the original power of the court to take cognizance of the particu- lar matter, but tacitly, in some instances, admit it. And they differ from pleas to the person, by admitting the plaintiff's ability to sue, and the -defendant's liability to be sued, although they ob- ject to the suit as framed, or contend, that it is unnecessary. They likewise differ from pleas in bar ; because they do not deny the validity of the rights which is made the subject of the suit ; although they contend, that the right ought not to be canvassed ' Mitf. Eq. PI. by Jeremy, 235 ; Cooper, Eq. PI. 250 ; Ante, § 262, 519, 520 ; Beames, PL in Eq. 131, 132. The decision in Plummer v. May, 1 Ves. 426, seems perfectly correct, because of the charge in the bill, that the defendant pre- tended to some right or intei^est under the will ; which the demurrer admitted. If no such pretence had been alleged, then a demurrer would have been good. Put a plea, in this case, denying the interest, supported by an answer, denying the claim of any interest, would have been good. Ibid. Mr. Cooper has said : " But it has since been determined, that a demurrer to such a bill will be also good ; and it is settled, that a defendant of this sort may make his defence either ,by plea or deipurrer." Cooper, Eq. PL 251. But this is not quite an accurate Statement. It is true only, where there are no facts stated in the bill, which re- quire an answer ; and it is apparent on the face of the bill, that the defendant is a mere witness, without any claim of interest. In such a case, if the defendant does not plead, or demur, but answers, it seems, that he must answer fully. See Cookson V. Ellison, 2 Bro. Ch. K. 252, and Mr. Belt's note ; Eenton v. Hughes, 7 Ves. 287, 289, 290 ; Beames, PI. in Eq. 131, note (4). In relation to the plea of "want of interest in the defendant, it is put by Mr. Beames and Mr. Cooper as a plea in abatement. But it seems also to partake of the character of a plea in bar, and is arranged by I,x)rd Eedesdale as a plea in bar. Mitf. Eq. PI. by Jere- my, 220, 221, 231, 232. 604 EQUITY PLEADINGS. [CH. XIV. on the existing record. They seem, indeed, to bear a considera- ble resemblance to those pleas at law, which are in abatement to the action of the writ, of which the following are stated as instan- ces ; that there is another action pending for the same cause ; that the action itself is prematurely brought ; and that the action is misconceived.^ These pleas have been arranged under the follow- ing heads: (1.) Plea of another suit depending in a court of equity for the same matter : (2.) Plea of want of proper parties : (3.) Plea of multiplicity of suits : (4.) Plea of multifariousness, or joining and confounding distinct matters in one suit.^ § 736. First ; the pendency of another suit. This plea corre- sponds with the exceptio litis pendentis of the civilians.^ It is analogous to the plea of the common law, that there is another action pending ; and is, in most respects, governed by the same principles.* The plea is generally applicable to the case of another suit, depending in the same court of equity, or in some other court of equity.^ An exception to the plea may properly be allowed in the case of a suit depending in an inferior court of equity, the ef- fect of which the defendant has avoided by going out of the juris- diction ; or whenever, from other peculiar circumstances, the infe- rior court cannot do complete justice, as wanting a jurisdiction to reach the parties, or to reach the subject-matter.^ § 737. In a plea of this sort, there are several matters, which are essential to its sufficiency. In the first place, the plea should ' Beames, PL in Eq. 133. ' Beames, PL in Eq. 134 - 158. Lord Kedesdale treats the two first of these pleas under the head of pleas in bar. Mitf. Eq. PL by Jeremy, 220, 221, 256, 280. It is also put by Lord Chief Baron Gilbert, as a peremtory plea. Gilb. For. Rom. 53. Mr. Beames, remarking upon this plea, says : " It is, perhaps, not very easy to discover a reason, why it should be ranked as a plea in bar in equity, although it has been generally so classed. It certainly is, in one sense, a plea in bar, because it is a bar to the particular suit. But, in that sense, not only some of the pleas to the jurisdiction, but some of those to the person, may be said to be pleas in bar. But neither those pleas, nor the plea under discussion, attempt to deny the existence of the right, made the subject of suit, or contend, that it is vested in the defendant, which are, as I conceive, of the essential and distinctive qualities of a plea in bar." ' Beames, PL in Eq. 134 ; Voet ad Pandect, lib. 44, tit. 2, § 7. ' Beames, PI. in Eq. 136 ; Foster v. Vassall, 3 Atk. 589. ' Mitf. Eq. PI. by Jeremy, 246 ; Cooper, Eq. PL 272 ; Beames, PL in Eq. 139 - 144 ; Gilb. For. Horn. 55. • Mitf. Eq. PL by Jeremy, 244 ; Beames, PI. in Eq. 142 - 144 ; Cooper, Eq. PL 274. §735-737.] PLEAS TO RELIEF. 605 set forth, with certainty, the commencement of the former suit its general nature and character and objects, and the relief prayed.i In the next place, the plea should aver, and so the fact should be, that the second suit is for the same subject-matter as the first. And, therefore, a plea, which did not expressly aver this, although it stated matter tending to show it, was considered as bad in point of form, and overruled upon argument.^ In the next place, it should state, not only, that the same issue is joined in the former suit, as in the suit now before the court, and that the subject-mat- ter is the same, but also, that the proceedings in the former suit were taken for the same purpose.^ In the next place, the plea should aver, that there have been proceedings in the suit ; such as an appearance, or process requiring an appearance at least.* This is analogous to the rule in the Civil Law, as to what shall constitute the pendency of a suit. Ccepta autem est, atque itapen- dere lis alibi censetur, non modo, si litis contestatio jam facta sit, sed et si sola citatio, sen in jus vocatio, utpote quce p-eventionem indwcit.^ On this ground, where a bill was brought against the defendants, who were partners in trade, for several shares in their •stock ; and the plaintiff in such suit afterwards sold one sixth part ' Foster v. Vassell, 3 Atk. 589, 590 ; Cooper, Eq. PI. 272, 273. ' Devie v. Lord Brownlow, 2 Dick. K. 611 ; Mitf. Eq. PI. by Jeremy, 246 ; Beames, PI. in Eq. 136. ° Behrens v. Sieveking, 2 Mylne & Craig, 602. Lord Cottenham, in giving judgment in this case, said : " That in order to support the plea, it was necessary to show, that the proceedings, in which the plaintiiTs were alleged to have failed, were taken for the same purpose as the present suit ; for the issue might have been the same, while the object was different ; and the circumstance, that the matter had been tried, as a matter of evidence, could not be conclusive. The defendant had to show, that the subject-matter was the same ; th^t the right came in question before a court of competent jurisdiction ; and that the result was conclusive, so as to bind the judgment of every other court. His lordship added, that it was in the plea alone, that any statement of the bill of proof or of the proceedings taken upon it was to be found ; but that the plea left the court in ignorance upon the question, whether the proceedings, which it alleged to have taken plax;e in the Lord Mayor's court, were conclusive, even in that court. His lordship thought, that the plaintiff could not have taken issue upon the plea, and that no question was stated in the plea upon which his lordship could ask the opinion of the Recorder." * Mitf. Eq. PI. by Jeremy, 246, 247 ; Beames, PI. in Eq. 137 ; Cooper, Eq. PI. 272 ; Moor v. Welsh Copper Company, 1 Eq. Abridg. 39, pi. 14 ; Anon. 1 Vern. 318. ' Beames, PL in Eq. 137, 138 ; Voet ad Pandect, lib. 44, tit. 2, § 7. 51* 606 EQUITY PLEADINGS. [CH, XIV. of what he was entitled to, to another person, who now brought his bill for such sixth part ; the defendants pleaded the former bill, and that such first suit was still depending. But, because the plea did not aver, that the defendants had appeared to the former suit, or put in their answer, or that they were so much as served with process to appear, the plea was disallowed.^ In the next place, the plea should regularly aver, that the former suit is still depending ; for this seems an essential ingredient to the validity of the plea.^ § 738. It is not necessary to the sufficiency of the plea, that the former suit should be precisely between the same parties, as the latter. For, if a man institutes a suit, and afterwards sells part of the property in question to another, who files an original bill, touching the part so purchased by him, a plea of the former suit depending, touching the whole property, will hold.^ So, where one part-owner of a ship filed a bill against the ship's husband for an account ; and afterwards the same part-owner and the rest of the owneirs, filed a bill for the same purpose ; the pendency of the first suit was held a good plea to the last ; for although the first bill was insufficient for want of parties, yet by the second bill the defendant was doubly vexed for the same cause.* Where there is a plea of the pendency of a former suit, it is irregular to reply to the plea, the proper course being to obtain a reference of the plea to a master, to ascertain and report whether both suits are sub- stantially the same.^ The course, which the court has taken, ■where the second bill has appeared to embrace the whole subject in dispute, more completely than the first, has been, to dismiss the ' Moor V. Welsh Copper Company, 1 Eq. Abridg. 39, pi. 14 ; Cooper, Eq. PL 272. ' Mitf. Eq. PI. by Jeremy, 247 ; Cooper, Eq. PI. 272; Beames, PI. in Eq. 138, 139. Lord Eedesdale says, that it has been held, that a positive averment, that the former suit is depending, is not necessary; Mitf. Eq. PI. by Jeremy, 247; and he cites Urlin v. Hudson, 1 Vern. R. 333, which certainly seems to support his statement ; although the averment there was, " which suit is still depending, for aught he (the defendant) knows to the contrary." However, it seems very doubtful if this case is sound law. Mr. Beames and Mr. Cooper both appear to doubt it. Beames, PI. in Eq. 138, 139 ; Cooper, Eq. PL 272. ' Mitf. Ex. PL by Jeremy, 248; Cooper, Eq. PL 273 ; Beames, PL in Eq. 139, 140. * Ibid. ' Jones V. Segueira, 1 Phill. Ch. K. 82 ; Post, § 743. §737-740.] PLEAS TO BELIEF. 607 first bill with costs, and to direct the defendant in the second cause to answer, upon being paid the costs of a plea allowed ; which puts the case on the second bill in the same situation, as it would have been in, if the first bill had been dismissed before filing the second.^ § 739. There are some cases, however, to which the pendency of the plea of a former suit will not properly apply, even where it may be for the same subject-matter. Thus, where the efiect of the second suit cannot be had in the former, this plea will not hold ; nor where the second bill, brought by a different person, although for the same matter, as far as concerns the foundation of the demand, is for a different equity ; nor where, although the second suit is brought by the same person for the same purpose, it is brought in a different right.^ Thus, where the executor of an administrator, conceiving himself to be the personal representative of the intestate, brought a bill, and afterwards procured adminis- tration de bonis non, and filed another bill, a plea of the pendency of the former bill was overruled.^ Lord Redesdale thought the reason of this determination to have been, that, the first bill being wholly irregular, the plaintiff could have no benefit from it ; and it might have been -dismissed upon demurrer.* But Lord Hard- wicke gave a different reason for his determination, expressly founding it upon this position, that where the same person sues in different rights, it is the same, as if there were different per- sons.^ § 740. Where a decree is made upon a bill brought by a creditor on behalf of himself and of all other creditors of the same person-, and another creditor comes in before the master to take the benefit of the decree, and proves his debt, and then files a bill on behalf of himself and the other creditors, the defendants may plead the pendency of the former suit ; for a man, coming under a decree, is quasi a party. The proper way for a creditor in such a situation ' MItf. Eq. PI. by Jeremy, 248 ; Cooper, Eq. PI. 273 ; Beames, PI. in Eq. 139, 140. ' Beames, PI. in Eq. 140, 141. ' Mitf. Eq. PI. by Jeremy, 248, 249. • Mitf. Eq. PL by Jeremy, 248, 249. ' Beames, PI. in Eq. 140, 141, and cases there cited ; Huggings v. York Build- ings Company, 2 Atk. 44 ; S. C. 2 Eq. Abridg. 3, pi. 14 ; Neve v. Weston, 3 Atk. 557 ; Law v. Kigby, 4 Bro. Ch. K. 60 ; Gage v. Lord Stafford, 1 Ves. 544 ; S. C. Ambler, 103 ; Mitf. Eq. PI. by Jeremy, 248, 249 ; Cooper, Eq. PI. 274. 608 EQUITY PLEADINGS. [CH. XIV. to proceed, if the plaintiff in the original suit is dilatory, is by ap- plication to' the court for liberty to conduct the cause.^ § 741. Whether a plea of the pendency of another suit in equity for the same matter in a foreign tribunal, would be a good plea, has been a matter of some discussion in some of the courts. Upon principle, there would not seem to be any real difficulty in holding, that it is not a good plea.. It is certain, that the pendency of an- other suit for the same matter in a foreign tribunal, would not be held a good plea to a suit in a court of law ; and there seems to be the same reason for overruling it in equity.^ § 742. The question, which next presents itself,)is, whether the pendency of an action in a court of law for the same subject-mat- ter, is a. good objection to be urged in a plea of this sort in a court of equity.^ It is the established rule, that such a plea is bad and unavailable in equity. The reason usually given for this diversi- ty is, that the plaintiff has a right to the oath of the defendant in equity, to exonerate him of the onus probandi at law.* Perhaps a more general ground may be found in the fact, that it can scarce- ly ever occur, that the remedial justice, and the grounds of relief, are precisely the same in each court ; for if the remedy be com- plete at law, that is an objection to the jurisdiction of a court of equity. It would be absurd to allow a suit, depending at law, to be a bar in a suit in equity, when the merits of the case could not be tried in the suit at law. The defendant is not, however, with- out a remedy for the double vexation ; for a court of equity will, upon the coming in of the defendant's answer, put the plaintiff to his election, whether he will proceed in the suit at law, or in equi- ty ; and if he elects the latter, then an injunction will issue to any further proceedings at law ; if the former, then the bill will be dismissed.^ But if the plaintiff should fail in his suit at law, this ' Mitf. Eq. PI. by Jeremy, 249 ; Neve v. Weston, 3 Atk. 557 ; Houlditch v. Donegal!, 1 Sim. & Stu. 491 ; Cooper, Eq. PL 274 ; Beames, PI. in Eq. 139, 140. ' Foster v. Vassal, 3 Atk. 589, 590 ; Mitf. Eq. PI. by Jeremy, 247, note (<) ; Dillon V. Alvares, 4 Ves. 357. See Cooper, Eq. PI. 275 ; Beames, PI. in Eq. 141, 142 ; Houlditch v. Donegall, 1 Sim. & Stu. 491. * Beames, PI. in Eq. 146 - 148 ; Cooper, Eq. PI. 276. * Gilb. For. Kom. 55 ; Beames, PI. in Eq. 146 - 148. Yet a plea of this sort is never required to be put in upon oath, because it is examinable by a master, as a matter of record. Mitf. Eq, PL by Jeremy, 247 ; Urlin v. Hudson, 1 Vern. 332 ; Beames, PL in Eq. 146 ; Cooper, Eq. PL 275. * Gilb. For. Kom. 55 ; Beames, Ord. in Chan. 11, 12 ; Beames, PL in Eq. 146- 148 ; Mitf Eq. PL by Jeremy, 249, 250 ; Cooper, Eq. PL 276. §740-745.] PLEAS TO RELIEF. 609 dismission of his bill will not be a bar to his bringing a second bill.^ § 743. As the plea of another suit, depending in equity, is clearly a good plea, if true, the usual course of the court is not to reply to the plea, (for that would be irregular,) or to have the plea set down and argued ; but to refer it to one of the masters to look into the two suits, and to report whether or not they are both for tlie same matter .2 If the master reports, that both suits are for the same matter, the plea is allowed ; but if he reports otherwise, the plea is then ipso facto overruled.^ According to the general orders of the court, the reference to the master is to be procured by the plaintiff, and a report thereupon within one month after the filing of such plea, otherwise the bill to stand dismissed of course with the ordinary costs.* If the plaintiff, therefore, set down the plea to be argued, he admits the truth of the plea, and it must be allowed, unless defective in form.^ § 744. If we pause upon this proposition, there certainly ap- pears something rather anomalous in the proceeding relative to this plea, as its effect seems to be, to preclude the plaintiff from having both an examination as to the truth of the plea, and a de- cision as to the form of the plea, as he is generally entitled to. If he examine into the truth of the plea by the reference to the mas- ter, he waives, it is apprehended, taking the opinion of the court on the form of the plea. And if he set down the plea for the pur-- pose of having a decision on its form, he thereby admits the truth of the plea, and foregoes an inquiry before the master ; and the plea must be allowed, unless it should be defective in form.^ But it is conceived, he may adopt the latter course, notwithstand- ing the terms of the general order would seem to preclude him from taking, iu any event, the opinion of the court on the form of the plea.'^ § 745. Secondly ; a plea for the want of proper parties. Little • Mitf. Eq. PI. by Jeremy, 250 ; Koyle v. Wynne, 1 Craig & Phill. 252. • Jones V. Segueira, 1 Phill. Ch. R. 82. See Wedderburn v. Wedderburn, 2 Beavan, R. 208 ; S. C. 4 Mylne & Craig, 685 ; Ante, § 783. ' Cooper, Eq. PI. 275. • Ibid. " Ibid- • Beamee, PI. in Eq. 144-146; Beames, Ord. in Chan. 176, 177. Mitf. Eq. PI. by Jeremy, 247; Cooper, Eq. PI. 274, 276; Murray y. Shadwell, 17 Yes. 352. ' Ibid. 610 EQUITY PLEADINGS. [CH. XIV. remains to be said upoii this subject beyond what has been already suggested in our prior inquiries.^ Although a plaintiff may be fully entitled to the relief he prays, and the. defendant may have no claim to the protection of the court, which ought to prevent its interference ; yet the defendant may object to tlie bill, if it is defi- cient to answer the purposes of complete justice. This is usually for want of proper parties ; and, if the defect is not apparent on the face of the bill, the defendant may plead the matter necessary to show it. A plea of the want of parties goes both to_ discovery and relief, where relief is prayed ; although the want of parties is no objection to a bill for a discovery merely.^ Where a sufficient reason to excuse the defect is suggested by the bill ; as where a personal representative is a necessary party, and the bill states, that the representation is in contest in the e/zclesiastical court ; or where the party is resident out of the jurisdiction of the court, and the bill charges that fact ; or where the bill seeks a discovery of the necessary parties, an objection for want of parties will not be allowed ; unless, perhaps, the defendant should controvert the excuse made by the bill, by pleading matter to show it false.^ ' Ante, § 236, 238, 541. ' Ante, § 610. ' Mitf. Eq. PI. by Jeremy, 280, 281; Cooper, Eq. PI. 185-187, 289, 290; Beames, PI. in Eq. 148 ; Kobinson v. Smith, 3 Paige, R. 2-22 ; Mitchell v. Lenox, 2 Paige, R. 280 ; Milligan v. Milledge, 3 Cr3,nch, 220 ; Lord Redesdale has classed this plea among pleas in bar. Mitf. Eq. PI. by Jeremy, 220, 280. On this, Mr. Beames (PI. in Eq. 149, 150), has remarked: "This plea is gen- erally classed as a plea in bar ; but with what propriety, (admitting, as it tacitly does, that the plaintiff is entitled to some relief, and not disputing the Talidity of the rights, made the subject of the suit,) cannot, I apprehend, l?e easily stated, especially as it is borrowed from the analogous plea at law to actions arising ex contracto, which has been considered a plea in abatement. Thus, in the instance of a quare impedit, ' the incumbent may plead in abatement, that such an one is not named a defendant when he ought to be.' It appears from Mr. Raithby's note of the case of Hamm v. Stephens, that the plea was considered, and is entered in the Register's book, as a 'plea in abatement for want of parties.' Lord Redesdale, although he has treated the plea now under discussion as a plea in bar, seems rather to question the propriety of so classing it, by observ- ing that it is, ' perhaps, a temporary bar only,' an observation that is equally applicable, for instance, to a plea of outlawry, which has never, it is appre- hended, been classed as a plea in bar in equity. In addition to whichj Lord Hardwicke himself says, that ' an exception for want of parties is in the same nature with a plea in abatement at law.' Whether, however, it be properly classed as a plea in bar, or as a plea to the bill, it is unquestionable, that a plea for want of parties is a good plea in equity, as it is at law." See also, Anon. § 745, T45 a.] pleas to relief. 611 Thus, in the first instance, if before the filing of the bill the con- test in the ecclesiastical court was determined, and administration granted, and the defendant shoiild show this by plea, perhaps the objection for want of parties would be, in strictness, good.i Upon arguing a plea of this kind, the court, instead of allowing it, has given the plaintiff leave to amend the bill upon payment of costs ; a liberty which he may also obtain after the allowance of a plea, according to the common course of the court ; for the suit is not determined by the allowance of a plea, as it is by the allowance of a demurrer to the whole of a bill.^ And a plea to the whole bill of want of parties will be overruled, if in any one state of facts charged by the bill, the parties would not be necessary ; for then the plea is not an answer to all the allegations in the bill.^ § 745 a. In, respect, also, to the want of proper parties, al- though it may be generally pleaded to the bill, that there is such a defect ; yet the structure of the bill, even when it seeks rehef, as well as discovery, may sometimes prevent the objection from being taken by way of plea. Thus, for example, if a bill be brought for payment of an annuity charged on real estate, and the bill charges, that the defendant ought to discover, whether there are any incumbrances prior to the plaintiif's ; and if there are, to set forth their names, and the nature of their claims and priorities ; it would not be a good plea, that there are prior in- cumbrancers, who ought to be made parties to the bill, for the defendant is bound to make the discovery as asked in the bill ; and if there are more than one, he ought to discover all the in- cumbrancers.* And if a plea, that there is one incumbrancer, Mosel. R. 207. It has already been stated (§ 238), that, where there is a defect of parties, the plea should show who the proper parties are, by name, if prac- ticable ; if not so, by a description, which will point out to the plaintiff the proper parties, and will enable him to amend his bill accordingly. See Mitf. Eq. PL by Jeremy, 180, 181 ; Attorney-General v. Jackson, 11 Ves. 367, 369, 370; Attorney-General v. Wyburgh, 1 P. Will. 599; Attorney-General v. Shelby, 1 Salk. 163 ; Beames, Pi. in Eq. 154, 155 ; Eawkes v. Pratt, 1 P. Will, 593 ^ Merrewether v. Mellish, 13 Ves. 435, 438; Anon. Mosel. K. 207; Cbck- burn V. Thompson, 16 Ves. 325 - 329. See also, Cook v. Mancius, 3 John. Ch. R. 427. ' Ibid. ' Mitf. Eq. PL by Jeremy, 280, 281, and cases before cited. " Homan v. Shiel, 2 Jones, (Irish,) K. 164. ' Rawlins V. Dalton, 3 Younge & Coll. 447, 452, 453. Lord Abinger on this ■ occasion said : « I am clearly of opinion, that the plea must be overruled, on three distinct grounds. The first is," that the matter discovered in the plea is part of 612 EQUITY PLEADINGS. [CH. XIV. who is not a party, is allowed, and the bill amended accordingly, and the defendant then pleads to the amended bill, that there are other incumbrancers, who are not made parties, the latter plea will be disallowed ; for the defendant ought to have inserted all the incumbrancers in the original plea.^ § 746. Thirdly ; the plea of multiplicity of suits. This objec- tion also may be taken by way of plea ; for it is against the whole policy of courts of equity to encourage multiplicity of suits.^ In- deed, this constitutes one main ground of the objection of the want of sufficient parties ; since its tendency is to multiply liti- gation.^ the discovery sought by the bill, and I never can suppose that courts of equity, which are generally governed by the rules of common sense, can allow what ought to have been the subject of an answer, and which the plaintiff seeks to have discovered by his bill, set up by way of plea, in order to defeat the bill. There is a class of cases, where the relief and discovery sought by the bill are so blend- ed, that you cannot separate them ; and if you plead to the relief, you must answer as to the discovery. Here, the party seeks to recover a certain annuity charged on lands ; but upon this bOl his title to receive payment of the annuity may depend on the existence of prior incumbrancers. One object of the bill is to obtain a discovery of the other incumbrancers, in order to make them parties to the suit. Ought, then, the omission to make the incumbrancers parties to be pleaded to siich a bill ? But at all events, can it be endured, that a defendant should plead the want of one incumbrancer, thereby getting the plaintiff's bill dismissed, and his own costs of the dismissal, and then be allowed to plead the same plea again as to another incumbrancer ? By the same rule he might go on and plead fifty successive pleas of the same sort. , It appears to me, however, that the very nature of the bill, which seeks to know, who are the incumbrancers upon the estate, precludes a plea for want of parties in acase like this, and that the defendant should include in his answer to the bill the names of all, whom he alleges ought to be, but whom the plaintiff has omitted to make, parties to the bill." » Kawlins v. Dalton, 3 Younge & Coll. 447, 452, 253. ' Beames, PI. in Eq. 155, 156, 158 ; Mitf. Eq. PI. by Jeremy, 145, 221 ; Ante, § 287; Cooper, Eq. PI. 184, 185. ' Stafford v. City of London, 1 P. Will. 428 ; Ante, § 72, 73, 75, 76. This plea is also classed by Lord Kedesdale as a plea in bar. Mitf Eq PI. by Jeremy, 220, 221. Upon this, Mr. Beames (PI. in Eq. 156) has remarked : " Lord Redesdale terms it a plea in bar, which, with great deference to his lordship, it cannot be, as it does not deny the existence of the right, made the subject of suit, but tacitly admits that right. Nor can it be denominated a plea either to the jurisdiction, or to the person. It is a plea in abatement of the bill, as framed, neither denying the jurisdiction of the court, nor the ability of the plaintiff to sue, nor contending, that the right, made the subject of the suit, has no existence ; but simply assert- ing, that the plaintiff ought not to split his defnands, but should bring the whole at once before the court." §745 a -749.] pleas to relikf. 613 4 747 Fourthly; the plea of multifariousness, or of joining and confounding distinct matters in one bill. Generally, this ob jection IS apparent on the face of the bill ; and then it should be taken by way of demurrer.^ But, in case the bill is so artfully framed, that from that, or from some other cause, the objection does not appear on the face of the bill, the defendant may take advantage thereof, by setting forth the special matter by a plea ^ Such a plea, properly considered, would be neither to the juris- diction, nor to the person, nor in bar ; but it would be strictly a plea to the bill, or to the frame thereof.3 This subject has been already treated at large under the head of demurrer ; and there- fore it is unnecessary to add more in this place.* § 748. Having disposed of these preliminary pleas, declinatory or dilatory, we come in the next place to the consideration of pleas in bar, belonging to the class of peremptory exceptions of the civil law. Although the subject of a suit may be within the juris- diction of a court of equity, and the court, in which it is brought, may have the proper jurisdiction ; although the plaintiff may be under no personal disability, and may be the person he pretends to be, and may have a claim of interest in the subject and a right to call on the defendant concerning it ; and although the defend- ant may be the person he is stated to be, and may claim an in- terest in the subject, which may make him liable to the plaintiff's demands, (with respect to which circumstances pleas have been already cousidered^) ; still, the plaintiff, by reason of some addi- tional circumstance, may not be entitled in the whole or in part to the relief or assistance, which he prays by his bill. The objec- tions, which may be made to the whole or to any part of a suit, and which have not been already considered, are principally the subject of those kinds of pleas, which are commonly termed pleas in bar.® § 749. Pleas in bar may be ranked under three heads : (1.) Pleas, founded on some bar created by statute : (2.) Pleas, founded on matter of record, or as of record, in some court : (3.) ' Mitf. Eq. PI. by Jeremy, 221 ; Ante, § 271-287. ' Beames, PI. in Eq. 157, 158 ; Mitf. Eq. PI. by Jeremy, 221 ; Benson v. Had- field, 4 Hare, R. 32. ' Beames, PI. in Eq. 157, 158. * Ante, § 271, 284, 530-541. ' Ante, § 734. • Mitf. Eq. PI. by Jeremy, 236. EQ. PL. 52 614 EQUITY PLEADINGS. [CH. XIV. Pleas of matter purely in pais, as it is termed ; that is, upon matter of fact, which is not of record.^ § 750. First ; Pleas in bar founded on matter, which is made a bar by statute. Pleas of this sort are : (1.) The statute of limi- tations : (2.) The statute for the prevention of frauds and perju- ries : (3.) Any other statute, public or private, which has created a bar : (4.) The plea of a statue fine and non-claim. § 751. (1.) The statute of limitations. This is a good bar to a suit in equity, as it is at law ; and it will ordinarily bar both the claim of the debt, and the discovery when the debt became due.^ Indeed, when the objection appearg on the face of the bill, it may, as we have already seen, be taken by way of demurrer.^ Thus, for example, if upon the face of a bill to recover a debt, it appears, that the debt accrued and was due more than six years before the commencement of the suit, a demurrer will lie. If it does not so appear, then a plea is proper. It was formerly thought, that al- though the plea might be a good bar to the relief sought by such a bill, yet it was not a good bar to the discovery sought, when the debt became due ; for if that had been set forth,, it would appear to the court, whether the time limited by the statute of limitations was elapsed or not.* But the doctrine is now well established, that the bar equally applies to each ; to the discovery, as well as to the relief.^ The objection may also be taken by way of answer, and relied on as a defence.® ' This is the distribution of Mr. Cooper, (Eq. PI. 251), and of Mr. Beames (PL in Eq. 159, 160) ; and I have followed it as preferable to that of Lord Kedesdale, who has divided them into, (1.) Pleas of matters recorded, or as of record in the court itself, or of some other court of equity ; (2.) Pleas of matters of record, or matters in the nature of matters of record of some other court, not a court of equity ; and (3.) Pleas of matters in pais. Mitf. Eq. PI. by Jeremy, 236. ' Mitf. Eq. PI. by Jeremy, 269 ; Cooper, Eq. PI. 251 ; James v. Sadgrove, 1 Sim. & Stu. 4 ; Macgregor v. East India Company, 2 Sim. R. 455 ; Ante, § 681 a, and note ; Dexter v. Arnold, 3 Sumner, R. 152. ' Ante, § 484, 503, note ; Foster v. Hodgson, 19 Ves. 179; Hovenden v. An- nesley, 2 Sch. & Lefr. 637 ; Hoare v. Peck, 6 Sim. R. 51 ; Mitf. Eq. PI. by Jer- emy, 212, note (c) ; Stackhouse v. Barnston, 10 Ves. 466, 469, 470. * Mitf. Eq. PI. by Jeremy, 269 ; Mackworth v. Cliilon, 2 Atk. 51 ; Ante, § 681 a, and note. ' Sutton V. Scarborough, 9 "Ves. 71 ; Cork v. Wilcock, 5 Madd. R. 328. Lord Redesdale, (Mitf. Eq. PI. by Jeremy, 269, 270) has made the following remarks ' Van Hook v. Whitlock, 7 Paige, R. 373; 1 Story on Eq. Jurisp. § 55 a, p. 73 ; Id. § 529 ; 2 Story on Eq. Jurisp. § 1520, 1521, and cases cited in the notes; Post, § 847. §749-752.] PLEAS TO RELIEF. 616 § 752. Where the demand is of anything executory, as a note for the payment of an annuity, or of money at a distant period, or by mst^ments, the defendant must, by his plea, aver, that the cause of action hath not accrued (not, that he did not promise) withm SIX years ; because the statute bars only wliat was actually due SIX years before the suit was brought.^ This is in accordance with the rule of pleading adopted at law.^ on the decisions, which establish the present doctrine :-« These decisions are stated to have been founded on a rule, adopted of late years, that where a de- murrer to relief would be good, the same ground of demurrer would extend to the discovery, on which the relief prayed was founded [Ante, § 312, 441] ; and apply- ing this rule originally confined to demurrers, to pleas also. It may be doubted, whether, in this extension of the rule to pleas, the difference between a plea arid demurrer has been sufficiently considered. A demurrer founds itself on the bill, and asserts no matter of fact, the truth of which can be disputed. A plea, on the contrary, asserts a fact, the truth of which is put in issue by the plea. When, therefore, the statute of limitations is pleaded to a demand, and the question to be tried on the issue, joined upon the plea, is, whether the debt became due within six years before the filing of the bill, it is denying the plaintiff the benefit of that discovery in aid of proof, which is allowed in all other cases to hold, that a plea of the statute of limitation, with an averment, that the cause of action, if any, accrued six years before the filing of the bill, will be a bar to the discovery of the truth of that averment. In the case of money received by the defendant for the use of the plaintiff, and where the sums received, as well as the times when they were respectively received, may rest in the knowledge of the defendant only, it may amount to a complete denial of justice to hold, that a plea of the statute of limitations, with such an averment, is a bar to any discovery as to the sums received, and when received, and of whom, and as to entries in books, and other papers, which discovery might enable the plaintiff to prove the falsehood of the plea by witnesses and production of papers, as well as by the defendant's an- swer." These remarks seem properly addressed to a case, where the bill states, that the debt has accrued within the period of the statute of limitations ; and then they would seem to be conclusive in favor of requiring the discovery to be made. But, suppose the bill should state the debt to be due ten years ago, and then should require a discovery, whether it did not ; would the same reasoning be ap- plicable ? See Ante, § 681, 681 a, 683 ; Post, § 806. ' Mitf. Eq. PI. by Jeremy, 271 ; Beames, PI. in Eq. 165, 169, 170 ; Cooper, Eq. PI. 252, 253. See Macgregor v. East India Company, 2 Sim. K. 452. ' Beames, PI. in Eq. 165, 166. As to the mode of averment, which will satisfy the rules of pleading, it has been decided, that the want of an averment, in a plea of the statute of limitations, that the money was not received within six years, may be supplied by an averment, that the cause of action, if any, arose above six years before the filing of the bill ; as where the bill was for an account of all sums received in respect of prizes, insurance, &c. ; and the de- fendants pleaded the statute of limitations, and the plea averred, that " there had been no promise or agreement withiri six years before the defendants were 616 EQUITY PLEADINGS. [CH. XIV. § 753. There are exceptions allowed in courts of equity, in analogy to those at law, to the strict application of "the statute of limitations. It cannot be pleaded, where the case falls directly within tbe exceptions of the statute itself, such as infancy, cover- ture, insanity, being imprisoned, or being beyond seas. Neither can it be pleaded in a case, where the executor of the debtor has not taken out administration ; because no laches can be attributed to a plaintiff for not suing, while there was no executor against whom he could bring his action.^ But where the allegation of the bill, upon a fair construction, was, that the defendant had pos- sessed the personal estate, and therefore might have been sued, as executor de son tort, a plea of the statute of limitations by an ex- ecutor, who had not taken out probate till some years after the testator's death, was allowed.^ § 754. In the cases above stated, the bill is supposed not to state, that the debt accrued more than six years before the suit brought ; and not to state any circumstances, which would take the case out of the statute ; ^ such as a fraud ; or a mistake ; or a new promise within six years ; or any exception of disability with- in the statute ; * of which it seeks a discovery. In such a case, the plea of the statute of limitations would be a pure plea. But, if the bill should charge a fraud, and that the fraud was not dis- covered until within six years, a pure plea would not be appropri- ate. But it must be the plea not pure, or the anomalous plea, already mentioned. That is to say, the plea should not only plead the statute of limitations, but it should contain averments, deny- ing the fraud ; or stating that the fraud, if any, was [not first] dis- covered within six years.° And it should also be accompanied by served with process, to come to any account for, or make satisfaction, or to pay any sum of money to the plaintiff" ; although it was objected, that there was no averment in this plea, that the money was not received within the last six years, yet the court decided, that it was supplied in substance by the averment, that no cause of action had accrued within the last six years ; and allowed the plea. Sutton V. Scarborough, 9 Ves. 71 ; Cooper, Eq. PI. 252. ' Cooper, Eq. PL 253, 254. ' Cooper, Eq. PL 253, 254 ; Beames, PI. in Eq. 167, 168 ; Burditt v. Grew, 8 Pick. E. 108. ' See Thring v. Edgar, 2 Sim. & Stu. 274 ; Macgregor v. East India Company, 2 Sim. R. 452; ' Ante, § 81a, and note; Forbes v. Skelton, 8 Sim. E. 335; Brooksbank ». Smith, 2 Younge & Coll. 58, 60. ' S. P. Brooksbank v. Smith, 2 Younge & Coll. 58 ; Clayton v. Earl of Win- chelsea, 3 Younge & Coll. 683, 688 ; Ante, § 681 a, and note ; Post, § 815 a. § 753 - 755.] PLEAS TO relief. 617 an answer in support of the plea, answering and denying the " cir- cumstances of fraud, and the other circumstances, which go to avoid the bar.^ So, upon a similar ground, where a particular special promise within six years is charged in the bill, to avoid the statute of limitations ; or where any other matter whatsoever is charged by the bill, to avoid the statute of limitations, the plaintiff must specially deny the promise, or other matter so charged by averment in the plea ; and must also accompany it with an answer in support of the plea, containing a like denial of the promise, 'or other matter charged, and all the circumstances thereof.^ In such a case, care must be taken not to cover such a discovery by plead- ing the plea to the whole bill, or to any part thereof, which will cover such a discovery ; for, if the plea does cover it, it will, as has been already stated, be overruled.^ § 755. The statute of limitations may also be pleaded in bar to a bill, filed to prevent the defendant from setting up an outstand- ing term, in order to defeat the plaintiff in an action of ejectment ; for in such a case, if more than twenty years have elapsed since his title accrued, and he has been out of possession, it is plain, that when he has obtained the equitable relief which he seeks, he will, nevertheless, be unable to proceed at law ; and, therefore, the only ground for equitable relief fails.* ' Mitf. Eq. PI. by Jeremy, 271 ; South Sea Company v. Wymondsell, 3 P. Will. 143; Beames, PI. in Eq. 163, 164, 167; Cooper, Eq. PI. 252, 253; Hoven- den V. Annesley, 2 Sch. & Lefr. 635, 636, 637; Goodrich v. Pendleton, 3 John. Ch. K. 384; Kane v. Bloodgood, 7 John. Ch. R. 134; S. C. 2 Cowen, R. 360; Clayton v. Earl of Winchelsea, 3 Younge & Coll. 683, 688 ; Hindman v. Taylor, 2 Bro. Ch. R. 7 ; Ante, § 684. ' Mitf. Eq. PI. by Jeremy, 271 ; Cooper, Eq. PI. 232 ; Beames, PI. in Eq. 164, 165 ; Bayley v. Adams, 6 Ves. 586 ; Cork v. Wilcock, 9 Madd. R. 328, 330 ; James v. Sadgrove, 1 Sim. & Stu. 4; Chapin v. Coleman, 11 Pick. R. 331; Didier v. Davison, 2 Sandford, Ch. R. 61. A plea of the statute of limitations need not deny the usual allegations, " that the defendant has books, &c., in his custody, by which, if produced, the several matters aforesaid, or some of them, did or would appear," unless it is also charged that, if produced, they would show a promise, within six years ; because, otherwise, the possession of these documents is quite immaterial. Macgregor v. East India Company, 2 Sim. R. 452. ' Ante, § 686 ; Portarlington v. Soulby, 6 Sim. R. 356 ; Bolton v. Gardner, 3 Paige, R. 273. When, and under whatever circumstances, the plea will be good in bar of an account. See Cooper, Eq. PI. 253 ; Beames, PI. in Eq. 167 ; Spring V. Gray, 5 Mason, R. 522- 533. * Jermy v. Best, 1 Sim. R. 373. 52* 618 EQUITY PLEAOINGS. [CH. XIV. § 756. In some of the foregoing cases, courts of equity seem to act upon the positive injunctions of the statute of limitations ; for, in a case of concurrent jurisdiction, (as in cases of account, or other debts,) the statute would seem to apply equally to courts of law and of equity.^ But in a great variety of other cases, courts of equity may correctly be said to act, not so much in obe- dience to the law, as in analogy to the law.^ For, although, in such cases, suits in equity are not within the words of the statute ; yet courts of equity generally adopt it as a positive rule, and apply it by parity of reasoning to cases not within it.^ § 756 a. But besides the bar of the statute of limitations, in cases to which the statute properly applies, the lapse of time will, independent of the statute, constitute a complete bar, in many cases, to proceedings in equity ; for courts of equity never inter- fere to grant either relief or discovery after an unreasonable lapse of time. On the contrary, the mere length of time unaccounted for is treated as evidence of gross negligence and laches in the plaintiif, and in such cases courts of equity never interfere.- Hence, even in cases of express trusts, if the parties have long ceased to act upon or recognize them, courts of equity will not interfere to enforce them ; and, a fortiori, not in cases of mere constructive trusts.* § 757. Thus, for example, if an equitable title is not sued upon until after the time within which a legal title of the same nature ought to be sued upon, to prevent a bar by the statute of limita- tions, courts of equity, acting by analogy to the statute, will not entertain it. For, in courts of equity, lapse of time is emphati- cally an ingredient in regard to entertaining suits for relief. If the party be guilty of such laches in prosecuting his equitable ^ 2 Story on Eq. Jurisp. § 1520 and note (2) ; Hovenden v. Annesley, 2 Sch. & Lefr. 607, 629, 630. " 1 Story on Eq. Jurisp. § 55, 529 ; 2 Story on Eq. Jurisp. § 1520-1522 ; Hoven- den V. Annesley, 2 Sch. & Lefr. 607, 629, 630; Burditt v. Grew, 8 Pick. 108; Bond V. Hopkins, 1 Sch. & Lefr. 428, 429 ; Stackhouse v. Bamston, 10 Ves. 466 ; Post, § 813. " Mitf. Eq. PI. by Jeremy, 273, and cases cited note (x) and note (z). * See 1. Story on Eq. Jurisp. § 64 a, 529 ; 2 Story on Eq. Jurisp. § 1520-1522, and the cases there cited. See also 'Stearns v. Paige, 1 Story, R. 204 ; Baker ». Whiting, 3 Sumner, R. 476 ; Dexter v. Arnold, 3 Sumner, R. 152; Wedderburn V. Wedderburn, 4 Mylne & Craig, R. 41; Post, § 757-759, 813; Portlock v. Gardner, 1 Hare, R. 594, 603. § 756 - 758.] PLEAS TO relief. 619 title, as would bar him, if his title were solely at law, he will be held barred in equity .^ Hence, it is a general rule in equity, in regard to all trusts and equitable estates in land, that every new right of action in equity, that accrues to a party, whatever it may bej'must be acted upon and prosecuted within twenty years ; and that an adverse possession for twenty years (subject to the ordi- nary exceptions at law) is a good bar to such an equitable right or title.2 Therefore, the statute of limitations may be pleaded to a bill to redeem a mortgage, if the mortgagee has been in possession twenty years, unless within that period he has treated it as a mort- gage.^ So, a bill to foreclose a mortgage will not lie after twenty years' possession by the mortgagor, without acknowledging the mortgage ; and a plea, setting up the bar, will be good.* But re- demptions have been opened after twenty years, where the mort- gagee has treated it as redeemable during that time ; as, if he has kept accounts upon it.^ § 758. If there is a mortgage of a manor, with an advowson appendant, and the church becomes void, the mortgagee, although in possession, is not allowed to present to the church till the mort- gage is foreclosed.® But if the mortgagee of an advowson pre- sents to- it, a bill by the mortgagor, seeking to compel a resigna- tion, must be brought within six mouths after a quare impedit^ And, if it is not, plenarty for six months before the bill filed may be pleaded in bar ; for the statute of Westminster the second is considered, for this purpose, as a statute of limitations, in bar of an equitable as well as of a legal right.^ But if a quart impedit is brought before the six months are expired, although the bill is filed after, it may be in some cases a ground for the court to inter- fere; and, consequently, plenarty would not in such cases be pleaded in bar.® -' Bond V. Hopkins, 1 Sch. & Lefr. 429; Hovenden v. Annesley, 2 Sch. & Lefr. 628-630, 636; 1 Story on Eq. Jurisp. § 55, 529; 2 Story on Eq. Jurisp. § 1520-1522; Stackhouse u. Barnston, 10 Ves. 466. = Hovenden v. Annesley, 2 Sch. & Lefr. 636 ; Cholmondeley v. Clinton, 2 Jac. & Walk. 1, 137, 141 - 189 ; Miller v. Mclntire, 6 Peters, R. 61. ' Mitf. Eq. PI. by Jeremy, 273 ; Hovenden v. Annesley, 2 Seh. & Lefr. 636, 637; Cooper, Eq. PI. 255 ; Cholmondeley v. Clinton, 2 Jac. & Walk. 1, 137-189; Stackhouse v. Barnston, 10 Ves. 466 ; Corbet v. Barker, 3 Anst. 755 ; Eaveld v. Bussell, 1 Younge, K 9. • Ibid. ' ^"^• • Cooper, Eq. PI. 255 ; Mitf. Eq. PL by Jeremy, 272. 7 Ibid. » Ibid. ° Ibid. 620 EQUITY PLEADINGS. [CH. XIV. § 759. A further illustration of the doctrine of courts of equity on this subject, may be found in the case of a rent-charge, either legal or equitable, which is not within the purview of the statute of limitations, and is not of course barred, either at law or in equity, by the mere lapse of time.^ But, nevertheless, in a case of this sort, courts of equity will, after a great lapse of time, un- explained by circumstances entitling the party to relief, refuse its aid, as it may well be presumed, that the rent-charge has been in some way extinguished. And courts of equity fully recognize the maxim, vigilantibus, non dormientibus,jura subveniunt? § 759 a. So, if a judgment has been obtained against a debtor, and no efforts are made by the creditor to enforce it for twenty years, the lapse of time will be a good bar to the judgment, and may be so pleaded, notwithstanding it may be shown, that, during the greater part of the time the debtor has been insolvent ; for a court of equity will never be active in relieving persons, who have for a long time slumbered upon their rights ; and especially, when they might have had relief in equity, and enforced their rights there, if they had applied within a reasonable period.^ § 759 b. Whether the direction of a testator, that his debts shall be paid out of his personal and real estate, will revive a debt ba,rred by the statute of limitations, and entitle it to payment out of the assets, has been a matter of grave discussion. The doctrine seems now finally settled, that in no case, of a charge either upon, the personal or the real estate, does it operate to stop the running of the statute, unless, indeed, the debt be specially referred to by the testator, as one scheduled and to be paid.* § 760. It may be added, in concluding this subject, that, for- merly, courts of equity held, that, unless the defendant claimed the benefit of the statute by plea, or by answer, he could not insist ' Collins V. Goodall, 2 Vern. 235 ; Cooper, Eq. PI. 259 ; Wynn v. Williams, 5 Ves. 130 ; Stackhouse v. Barnston, 10 Ves. 466 - 47Q ; Eldridge v. Knott, Cowper, E. 214; Beames, PI. in Eq. 168. ' 1 Story on Eq. Jurisp. § 55 a, 529 ; 2 Story on Eq. Jurisp. § 1520-1522, and notes ; 1 Fonbl. Eq. B. 1, ch. 4, § 27 and note (g) ; Cooper, Eq. PI. 259 ; Aston V. Aston, 1 Ves. 264 ; Stackhouse v. Barnston, 10 Ves. 466-469 ; Beames, PI. in Eq. 168-170 ; Baldwin v. Peach, 1 Younge & Coll. 453. » Grenfell v. Girdlestone, 2 Younge & Coll. 662, 679, 681, 682. * See 2 Story on Equity Jurisp. § 1521 a; Scott v. Jones, 4 Clarke & Fin. 382 ; Freake v. Cranfeldt, 3 Mylne & Craig, 499. But see Crallon v. Oulton, 3 Beavan, R. 1. § 759 - 761 <\J] PLEAS TO BELIEF. 621 upon it in bar of the plaintiff's demand.^ That rule no longer prevails, where the cause accrued so long ago as to be barred by the statute of limitation, and the fact is apparent on the face of the bill ; for there a demurrer will lie.^ And the courts will, in cases which will allow of the exercise of discretion, use the statute as a rule to guide that discretion ; and will also sometimes resort to the policy of the ancient law, which in many cases limited the demand of accruing profits to the commencement of the suit. § 761. (2.) The statute for prevention of frauds and perjuries may also be pleaded in bar of a suit, to which the provisions of the statute apply .^ Thus, for example, to a bill for the specific per- formance of a contract, or agreement respecting lands, the defend- ant may plead the statute, and by negative averments insist, that there has been no contract or agreement in writing signed by the parties.* Therefore, where a bill stated a parol agreement for the sale of lands, and that five guineas were paid in part of the pur- chase-money, and the defendant pleaded the statute of frauds in bar, the plea was allowed ; ^ for a part payment of the purchase- money is not such a part performance of the contract or agree- ment, as takes the case out of the statute.^ So, to a bill setting up a parol variation of such a contract, the statute may be plead- ed, if the variation is essential.^ [* § 761 a. In a case where the bill does not allege the contract in writing, but only in general terms, and a hearing is had before any answer is filed, it -is competent for the defendant, where the ' Mitf. Eq. PI. by Jeremy, 273, 274, and the cases cited in note (z) and note (a). ni. xt ' Foster v. Hodgson, 19 Ves. 180 ; Earl Deloraine v. Brown, 3 Bro. Lh. K. 633, and Mr. Belt's note ; Hoare v. Peck, 6 Sim. R. 51 ; Hovenden v. Lord An- nesley, 2 Sch. & Lefr. 607, 638 ; Ante, § 484, 503, and note. _ ' Mitf. Eq. PL by Jeremy, 265; Cooper, Eq. PI. 255; Beames, PI. m Eq. 171 ; Cottington v. Fletcher, 2 Atk. 156. See this case commented on m Moore V. Edwards, 4 Ves. 24 ; S. C. 6 Ves. 68 ; Beames, PI. in Eq. 180 ; Gilb For Kom 61. This statute parsed 29 Car. 2, ch. 3, and has been very generally adopted and re-enacted in America. 2 Story, Eq. Jurisp. § 752. ™ . -p^ „, * Cooper, Eq. PL 255 ; Mitf. Eq. PL by Jeremy, 266 ; Beames, PL m Eq. 171, 172 ; Stevens v. Cooper, 1 John. Ch. R. 425. t>i ;^ -Pn » kain V. Melboum, 4 Ves. 720 ; Cooper, Eq. PL 235, 236 ; Beames, PL m Eq. 471,472. • 2 Storv on Eq. Jurisp. § 760, and cases there cited. _ ' C«^2^ Eq P . 256 f Brodie .. St. Paul, 1 Ves. jr. 326 ; Jordan v Sawkms, 1 VesT402? S C. 3 Bro. Ch. R. 388 ; Parkhurst .. Van Cortlandt, 2 John. Ch. R. 275. 622 EQUITY PLEADINGS. [CH. XIV. bill asks a specific performance of a contract for the sale of land, to plead the statute of frauds, at the hearing, orally.^ But as a general rule the statute of frauds must be specially urged, either by formal plea, or in the answer, in order to enable the defendant to rely upon it, as a defence, at the hearing.^] § 762. There is a distinction suggested on this subject, impor- tant in point of practice. If a bill for the specific- performance of' a contract respecting the sale of land, states the agreement gener- ally, with no representation, fixing it as in writing, or not, as that general averment may be understood of an agreement in writing, or not, although the plea of the statute has rather the appearance of an answer ; yet it has always been admitted in that form.^ But if the bill states an agreement in writing, and seeks nothing but an execution of that agreement, a plea, that there is no agreement in writing, has been thought not to be proper ; as it is no more than so much of an answer.* § 763. It seems now understood, that this plea extends to the discovery of the parol agreement, as well as to the performance of it ; although it has been said, that the defendant is compellable by answer, or by plea, to admit, or to deny the parol agreement, stated in the bill.^ But this seems utterly nugatory ; for it is [* • Lincoln v. Wright, 5 Jur. N. S. 1142. « Heys V. Astley, 9 Law, T. N. S. 356.] » Morison v. Tumour, 18 Ves. 182. See Whitchurch v. Bevis, 2 Bro. Ch. R. 566, 567, and Mr. Belt's note (19) ; S. C. 2 Dick. 666. But quaere, whether this distinction is well founded. Why is not such a negative plea good, if no circum- stances are charged in the bill requiring a discovery? See Rowe v. Teed, 15 Ves. 378 ; Thring v. Edgar, 2 Sim. &. Stu. 274. * Ibid. ° The subject is thought by Lord Redesdale (Mitf. Eq. PI. by Jeremy, 266 - 268) to be still involved by the authorities in some difficulty. " It has been understood," says he, " that this plea extended to the discovery of a parol agree- ment, as well as to the performance of it, except where the agreement had been so far performed, that it might be deemed a fraud on the party seeking the benefit of it,' unless it was completely carried into execution ; and cases have been determined accordingly. This has of late been the subject of much dis- cussion, and some contrariety of decision. In one case the court appeared to have conceived, that the courts of equity, in determining cases arising upon ^is statute, had laid down two propositions, founded on rules of equity, and had given a construction to the act accordingly, which amounted to this, that the act was to be construed, as if there had been an express exception to the extent of those rules in favor of courts of equity ; and that no action was to be sustained, except upon an agreement in writing, signed according to the requisi- §761 a -764] pleas to relief. 623 now well settled, that if the defendant should by his answer admit the parol agreement, and should insist upon the benefit of the statute, lie will be fully entitled to it, notwithstanding such admis- sion.i But if he admits the parol agreement, without insisting on the statute, the court will decree a specific performance, upon the ground, that the defendant has thereby renounced the benefit of the statute.^ § 764. But if in cases of this sort any matter is charged in the bill, which may avoid the bar, created by the statute, such as acts of part performance, or fraud, then the plea ceases to be a pure plea ; and that matter must be denied by way of averment in the plea, and must also be denied particularly and precisely by way of answer in support of the plea.^ tion of the statute ; and except upon bills in equity, -vrliere the party to be charged confessed the agreement by answer ; or there was a part performance of the agree- ment. It was therefore determined, that to the fact of the agreement the defend- ant must answer. But the court, afterwards, upon a rehearing, allowed the plea. In subsequent cases this subject was much discussed ; and the question was par- ticularly considered, whether, if the defendant admitted by answer the fact of a parol agreement, but insisted on the protection of the statute, a decree could be pronounced for performance of the agreement without any other ground, than the fact of the parol agreement thus confessed. At length it seems to have been de- cided, that although a parol agreement be confessed by the defendant's answer ; yet, if he insists on the protection of the statute, no decree can be made merely on the ground of that confession." He immediately adds, in the succeeding sen- tence, a suggestion, that there must always be a discovery of the parol agreement by answer ; which, however, is contrary to the text, which follows the doctrine of Mr. Cooper, Eq. PI. 256, and that ultimately held in Whitchurch v. Bevis, 2 Bro. Ch. R. 559. ' Ibid. ' Cooper, Eq. PI. 256, 257; Mitf. Eq. PI. by Jeremy, 266-268 ; Beames, PI. in Eq. 172-176 ; 2 Story on Eq. Jurisp. § 758 and note (1) ; 1 Fonbl. Eq. B. 1, ch. 3, § 8, and note (d) ; Cozine v. Graham, 2 Paige, K. 177 ; Ontario Bank V. Root, 3 Paige, R. 478; Rowe v. Teed, 15 Ves. 375; Morison v. Tumour, 18 Ves. 182, 183; Cooth v. Jackson, 6 Ves. 37, 38; Blagden v. Bradbear, 12' Ves. 471. In the case of the Ontario Bank v. Root, 3 Paige, E. 478, it was decided, that where the bill sets up an agreement, which would be invalid by the statute of frauds, unless it was in writing, and the defendant by his answer denies the agreement, he need not insist upon the statute as a bar ; but the plaintiff at the hearing must establish the agreement by written evidence. S. P. Cozine v. Graham, 3 Paige, E. 177, 181. See also Champlin v. Parish, 11 Paige, 408, ' Cooper, Eq. PI. 256 ; Mitf. Eq. PI. by Jeremy, 266, 267 ; Beames, PI. in Eq. 176-182 ; 2 Story on Eq. Jurisp. § 759-767 ; Whitchurch v. Bevis, 2 Bro. Ch. R. 559, and Mr. Belt's note; Morison v. Tumour, 18 Ves. 181, 182. 624 EQUITY PLEADINGS. [CH. XIV. § 765. The statute of frauds and perjuries may also be plead- ed to a bill for the discovery and execution of a trust, with an averment, that there was no declaration of the trust in writing.^ But here, as in the former case, circumstances of fraud may be alleged in the bill, which, if true, would avoid the bar.^ If there be any such allegation of fraud, the plea ceases to be a pure plea ; and the allegation must be met by an averment in the plea, deny- ing the fraud ; and there must also be an answer in support of the plea, responsive to, and denying all the circumstances of fraud so charged.* § 766. Whether, in the case of a parol trust charged by a bill, the defendant may confess the trust by his answer, and insist upon the statute of frauds as a bar, as he may to a bill brought for a specific performance of a parol contract respecting lands, is an important question, which has been much discussed, and upon which (it has been) said it may be very difficult to make a satis- . factory distinction.* In each case, the confession by answer of the trust, or of the agreement, is susceptible of being considered 'as a declaration of trust in writing, or as an admission of an agree- ment in writing, signed by the party. If, notwithstanding the admission in the one case, the bar may be insisted on, it is not easy to say, why the same rule ought not to be applied in the other .^ Indeed, it has been doubted, whether the defendant, upon a bill charging a parol trust, is not always bound to answer, as to the existence of the parol trust ; and whether a plea of the statute would be good to such a discovery.^ ' Cooper, Eq. PI. 256, 257; Mitf. Eq. PI. by Jeremy, 265; Cottington v, Fletcher, 2 Atk. 156. ' Ibid. ' Mitf. Eq. PI. by Jeremy, 268 ; Cooper, Eq. PL 257, 258 ; Beames, PI. in Eq. 178-180. * Mitf. Eq. PI. by Jeremy, 267, 268. 5 Mitf. Eq. PL by Jeremy, 267, 268; Muckleston v. Brown, 6 Ves. 52, 67-69. ' See Addington v. Cann, 3 Atk. 141, 143, 144; S. C. cited Parker, R. 159, 160; S. C. cited and commented on, Muckleston v. Brown, 6 Ves. 67,68. See Whitchurch v. Bevis, 2 Bro. Ch. R. 559 ; Mitf. Eq. PL by Jeremy, 267, 268. Lord Redesdale (Mitf. Eq. PL by Jeremy, 267,) has used the following language : " And it may now, apparently, be concluded, that a plea of the statute cannot, in any case, be a bar to a discovery of the fact of an argument ; and that, as the benefit of the statute may be had, if insisted on, by answer, there can be no use in pleading it in bar of relief. Whether the same rule would be applied to a confession of a trust by an answer, which may be considered as a declaration of §765-767.] PLEAS TO relief. 625 § 767. But, whatever may be the doubts, in some cases of trust. It seems clear, that where the bill sets up a parol trust, the non- the trust in writing, signed by the party, as indeed the confession of a parol agreement by answer might also be deemed, seems to be an important question, not agitated m the cases decided with respect to other agreements, and upon which It may be very difficult to make a satisfactory distinction. In the cases, in which It was formerly considered, that a plea of this statute was the proper defence, it was conceived, that any matter charged by the bill, which might avoid the bar created by the statute, must be denied generally, by way of averment in the plea, and particularly and precisely by way of answer to support the plea. But according to one case, if any such matter were charged in the bill, it became impossible to plead the statute in bar ; the court having determined, that denial of the matter so charged made the plea double, and therefore informal. And it may now be doubtful, whether a plea of the statute ought in any case (except perhaps in the case of a trust) to extend to any discovery sought by the bill ; and, indeed, whether it ought not to be deemed a needless and vexatious pro- ceeding, if confined to relief." From this passage, it seems to be Lord Redesdale's opinion, (1.) That to a bill for a specific performance of a parol contract, the de- fendant must by answer discover, whether there was a parol contract or not ; and that his plea of the statute must not cover such a discovery. But this is contrary to the text. Ante, § 763 and note, and seems inconsistent with the ulti- mate decision, in Whitchurch v. Bevis, 2 Bro. Ch. K. 559 ; and with the generally received doctrine in England, that a plea in bar, good to the relief, is a good bar to the discovery. Mr. Cooper, too, holds the contrary doctrine. Cooper, Eq. PI. 256. (2.) Lord Eedesdale seems to hold it doubtful, whether a plea of the statute ought in any case (except, perhaps, in the case of a trust) to extend to the dis- covery sought by the bill ; or, indeed, whether any such plea is good at all. In a preceding page (p. 255,) he admits the validity of a plea of the statute to the dis- covery and execution of a trust ; and it is very difficult to perceive any distinc- tion between such a case, and the case of a bill for the specific performance of an agreement. In the latter case, a plea of the statute has often been recognized as good ; as, indeed, his lordship admits (p. 266, and cases cited, note k, and note m). See also Miissell v. Cooke, Free. Ch. 533 ; Whitchurch v. Bevis, 2 Bro. Ch. K. 559 ; HoUis v. AVliiting, 1 Vern. 151. That the bar of the statute may be relied on in an answer, by no means establishes, that it may not also be relied on in a plea ; and an answer in support of a plea is not necessary, unless some facts are stated in the bill, as to the trust or agreement, which call upon the defendant for a dis- covery. If the bill charges a written agreement, and seeks a discovery thereof, there the plea may require an answer in support of the plea, denying, that there is any written agreement. Perhaps Lord Eldon's doctrine in Morison v. Turnour, 18 Ves. 182, cited Ante, § 763, may be explained upon this ground. Mr. Belt, in his note (19) to Whitchurch v. Bevis, 2 Bro. Ch. K. 667, seems to have thought, that a plea of the statute to a parol agreement, charged in a bill, would be good without answering as to the parol agreement ; and that a like plea would be good, if the agreement was not stated to be by parol. The truth seems to be, that Lord Eedesdale, in his whole text on this subject (p. 265-269,) seems to have been embarrassed by the apparent conflict of the authorities, and to haVe endeavored, BQ. PL. 63 626 EQUITY PLEADINGS. ' [CH. XIV. performance of which would be a fraud' upon the plaintiff j or where the parol trust is a secret trust, alleged to be in fraud of the public policy of the country ; a pure plea of the statute will not prevail ; for the statute will never be allowed to cover fraud. In such cases the plea must contain averments denying the fraud, and also be supported by an answei*, discovering or denying all the circumstances relied on to establish the fraud.^ Therefore, where an heir at law filed a bill against a devisee, for the discovery of secret trusts for charitable uses, and stating a paper in the handwriting of the testator, as a ground for the allegation ; al- though the defendant pleaded the statute of frauds, yet he was compelled to answer.^ And so, in another case, in which co-heirs were plaintiffs, and filed a bill for the same purpose ; and it ap- peared, that the testator's codicil contained expressions denoting some trusts, and there were written acknowledgments by the de- fendants, that^they were to take upon trust for charity, the defend- ants were compelled to answer.^ § 768. Even in the case of a mere naked allegation by the heir, that the defendant takes upon a secret trust for charitable purposes against the statute of mortmain, if the defendant pleads the statute of frauds, with an averment, that he never signed any writing de- claratory of a trust, it will not be sufficient ; because the statute was never permitted to be a cover for a fraud upon the private rights of individuals ; and although, within the intention, it can- not be said, that a trust is created under these circumstances ; yet it is clear, that a trust would be created upon the principle, on which coiirts of equity act as to fraud.* Tlius, in the ordinary case of an estate, suffered to descend, tlie owner being informed by the heir, that, if the estate is permitted to descend, he will make a provision for a mother, or a wife, or other person, the ■without success, to bring them into harmony. Since he wrote, the subject of neg- ative pleas has been much more fully considered ; and the confusion in the author- ities is in a great measure dissipated. See Armitage v. Wadsworth, 1 Madd. K. 189, 195 ; Hitchins v. Lander, Cooper, Eq. K. 37. > Cooper, Eq. PI. 256, 257. ^ Cooper, Eq. PL 257; Adlington v. Cann, 1 Atk. 141; cited also in Parker's Rep. 144, and 6 Ves. 67, and 9 Ves. 519 ; Muckleston v. Brown, 6 Ves. 52, 65, 68, 69 ; Chamberlain v. Agar, 2 Ves. & Beam. 259. » Ibid. * Cooper, Eq. PL 257, 258 ; Strickland v. Aldridge, 9 Ves. 516, 519 ; Cham- berlain V. Agar, 2 Ves. & Beam. 269, 262. §767-771.] PLEAS TO RELIEF. 627 court will compel the former to discover, whether he did make such a promise.! So, if a father devises to his youngest son, who promises, that, if the estate is devised to him, he will pay a sum of money to the eldest son, the court will compel the former to discover, whether that passed in parol ; and if he acknowledges it, even praying the benefit of the statute, he will be decreed to stand as a trustee of the estate for the amount of the sums of money charged upon it.^ § 769. (3.) The plea of some other pubHc or private statute. In the same manner, any other statute, which creates a good bar to the demand of the plaintiff, asserted in his bill, may be pleaded with the averments necessary to bring the case of the defendant within the statute, and to avoid any equity, which may be set up against the bar created by the statute.^ In the latter case, there must also be an answer, discovering and denying the matters of equity, so set up to avoid a bar.* Among these statutable bars may be enumerated the statute respecting the buying of pretensed titles ; the statute of maintenance ; the statute of usury ; and, in England, the ship registry acts.^ § 770. A private or particular statute may also be pleaded in the same manner. Thus, to a bill impeaching a sale of lands in the fens by the conservators under the statutes for draining the fens, the defendant pleaded the statutes, and that the sale was made according to, and by virtue of, those statutes ; and the plea was allowed.^ § 771. (4.) A plea is sometimes both a statute and a record ; as, for instance, a fine with proclamations, in England, according to the statute of 4 Henry VII. chap. 24, and a five years' non- ' Cooper, Eq. PI. 257, 258 ; Strickland v. Aldridge, 9 Ves. 516, 519 ; Cham- berlain V. Agar, 2 Ves. & Beam. 259, 262. = Ibid. ' Cooper, Eq. PL 258 ; Mitf. Eq. PI. by Jeremy, 274 ; 1 Story on Eq. Junsp. § 99, 256 ; 2 Story on Eq. Jurisp. § 768. * Beames, PI. in Eq. 182, 183. » Beames, PI. in Eq. 182 ; Hitchins v. Lander, Cooper, Eq. R. 34; Wall u. Stnbbs, 2 Ves. & Beam. 359. In Hitchins v. Lander, Cooper, Eq. R. 35, the form of a plea of buying a pretensed title, contrary to statute of 32 Henry VIH. ch. 9, § 2, is given at large ; which was allowed by Lord Eldon. S. F. Beames, • PI. in Eq. Appendix, 333 - 337. ' Beames, PI. in Eq. 183 ; Cooper, Eq. PI. 259, 260 ; Mitf. Eq. PL by Jeremy, 274 ; Brown v. Hammond, 2 Ch. Cas. 249. 628 KQUITY PLEADINGS. [CH. XIV. claim.^ This bar is not, or at least has not been, usually applied in America. But still it may be proper to state a few matters in regard to the nature and operation of the plea, as it serves to illustrate some other points of general jurisprudence, and of pleading. § 772. A plea of fine and non-claim, is properly a legal bar ; but it is equally good in equity, provided it is pleaded with proper averments.^ Where a defective title, merely legal, is purchased by a party, although the defect is apparent upon the face of his deeds, yet the fine may be set up by him as a bar in equity ; and he will not be affected by notice of such defect, so as to make him a trustee for the person who had the right ; for a defect upon the face of title-deeds is often the occasion of a fine being levied ; and if a person has lost his right by a legal bar, he can have no remedy in equity, whatever may be the circumstance.^ § 773. In regard to equitable titles, also, a fine and non-claim will in many cases be a good bar, as it is in regard to legal titles. And it may be generally stated, that, wherever a person comes in by a title, in opposition to the title of a trust estate, or comes in under the title to the trust estate for a valuable consideration, without fraud, or notice of fraud, or of the trust, a fine and non- claim may be set up as a bar to the claim of a trust.* For many purposes, indeed, a fiile, although under the statute, is treated only as a species of conveyance.^ § 774. On the other hand, there are cases, in which courts of equity will control the effects of a fine and non-claim. Some of these cases are founded upon an analogy to the law ; and others again are founded upon their own peculiar jurisprudence. In the first place, there are cases where a fine will not avail either at law or in equity. (1.) As where the person, setting up the fine, has been guilty of covin or fraud, he will be treated as a trustee for the person equitably entitled. (2.) A mortgagor cannot bar a mortgagee by a fine and non-claim. (3.) A fine by a lessee, or ^ Cooper, Eq. PI. 260 ; Mitf. Eq. PI. by Jeremy, 252-2G1 ; Gilb: For. Rom. 61 ; Gait v. Osbaldiston, 1 Kuss. R. 158 ; S. C. 5 Madd. R. 428. See Leigh v. Leigh, 1 Sim. R. 349, 371 - 373 ; Story v. Lord Windsor, 2 Atk. 630, 631. ^ Ibid. ' Mitf. Eq. PI. by Jeremy, 261; Cooper, Eq. PI. 260; Beames, PI. in Eq. 183-186. * Mitf. Eq. PL by Jeremy, 252, 253 ; Beames, PI. in Eq. 191 ; Cooper, Eq. PI. 263. ' 2 Black. Comm. 348, 349. § 771 - 775.] PLEAS TO EELIEP. 629 tenant at will, will not bar his lessor's right ; or a rent issuing out of the land. (4.) A fine will not bar or extinguish a simple col- lateral or naked power .^ § 775. There are cases in which a fine and non-claim do not constitute a bar in courts of equity upon their own peculiar prin- ciples. (1.) Thus, although where the equity charges the land only, a fine is a good bar ; yet, if it charges the person only, in respect of the land, it is then no bar ; as in case of a purchaser from a trustee, knowing the trust.^ (2.) Where the person, claiming the benefit of the fine, derives title under a trustee, but really has not the character of a purchaser for a valuable consid- eration, the fine is no bar ; for, in such a case, he is also treated as a mere trustee.^ (3.) If a person, who claims under a convey- ance obtained by fraud, levies a fine, that is no bar to the owner ; for he is a mere trustee of the latter in consequence of the fraud.* (4.) If a person, coming in under a fraudulent conveyance, sells to another by a fine, with notice of the fraud or without consider- ation, the fine is no bar.^ (5.) If the equity or trust is created by the fine, the fine will be no bar ; because it is not an opposite title.® (6.) Where there is suppression of the title-deeds by a tenant for life in possession of them, or by a trustee, a fine will be no bar to a bill against him by the rightful owner .'^ (7.) A fine by a person in possession, the legal estate being in a trustee, will not bar an equitable charge under the deed of trust.^ (8.) The pendency of a suit in equity will sometimes, in a court of equity, prevent the running of a fine and non-claim, where the matter is of an equitable nature.® > Beames, PI. in Eq. 186-188; Cooper, Eq. PI. 260-262; Mitf. Eq. PI. by Jeremy, 250-252. ' Beames, PI. in Eq, 189 ; Cooper, Eq. PI. 261 ; Mitf. Eq. PI. by Jeremy, 251 ; Salisbury w.'Baggot, 1 Ch. Cas. 278. ' Beames, PI. in Eq. 189 ; Gilb. For. Kom. 62 ; Cooper, Eq. PI. 261 ; Mitf. Eq. PI. by Jeremy, 251. * Beames, PI. in Eq. 190 ; Gilb. For. Eom. 62. .^ , c ,. ■ Beames, PI. in Eq. 190, 191 ; Gilb. For. Eom. 62 ; Kennedy v. Daly, 1 Sch. & Lefr. 380, 381. » Beames, PI. in Eq. 191 ; Gilb. For. Rom. 63. ' Beames, PI. in Eq. 192 ; Bowles v. Stewart, 1 Sch. & Lefr. 225. « Beames, PI. in Eq. 192 ; Pomfret v. Winsor, 2 Ves. 472 ; S. C. cited 10 Ves. ''' Beames, PI. in Eq. 192 - 194 ; Cooper, Eq. PI. 263 ; Mitf. Eq. PL by Jeremy, 252. 53* 630 EQUITY PLEADINGS. [CH. XIV. § 776. In the next place, courts of equity will, in some cases, limit the operation of a fine, and allow it as a bar to a certain extent only. (1.) Where it appears to have been the intention of a husband and wife, in levying a fine, not to bar her jointure, a court of equity will not allow it to operate as such a bar.^ (2.) Where a fine is levied pursuant to a decree, for a particular pur- pose, it will not be permitted to operate further than the decree directs.^ (3.) If a fine be levied on lands, comprised in marriage articles, to different uses from those intended by the articles, a reconveyance will be compelled, according to the uses intended by the articles.^ § 777. In a plea in equity of a fine and non-claim, or of any other strictly legal bar, the same strictness is required as at law. In the case, therefore, of the plea of a fine, a direct. positive aver- ment of seisin is necessary. And, therefore, if the allegation of seisin is only argumentative ; as if it be, that the party being, or pretending to be seised, or being in possession and receipt of the rents, and being thereby seised, conveyed, the plea will be over- ruled ; it being necessary to aver an actual seisin. It is not, in- deed, requisite to aver a seisin in fee ; an averment, that the par- ty was seised, ut de libera tenemento, and being so seised, a fine was levied, will be sufficient.* A plea of a fine of lands in the county of Derby and elsewhere, with an averment, that it was of all the lands mentioned in the bill, has been held sufficient, al- though without an averment, that the party had no lands but in Derbyshire.^ And although advowsons were mentioned in the same plea, and it was objected that a seisin by presentation not being alleged, the fine could not operate as a bar ; yet the court held a general averment of seisin to be sufficient, and that they would not intend that there were advowsons merely because they were mentioned in the fine.^ A plea of a conveyance, fine, and non-claim, is not multifarious ; but is a good plea, the whole being a plea of one title only.'^ • Beames, PI. in Eq. 193 ; Cooper, Eq. PI. 260. ' Beames, PI. in Eq. 193 ; Goodrich urBrown, 2 Freem. 180; S. C. 1 Ch. Cas. 49; Cooper, Eq. PI. 262. '' Beames, PI. in Eq. 193; Trevor v. Trevor, 1 P. Will. 622; Cooper, Eq. PI. 263. * Cooper, Eq. PI. 263, 264 ; Mitf. Eq. PI. by Jeremy, 253 ; Beames, PI. in Eq. 185, 186. ' Ibid. • Ibid. ' Ibid. 631 § 776 - 779.] PLEAS TO reuef. ^ V^\?:? ^^'^' ""^ ""^"'^ '^^'°°^^' «^ ^' «f r««ord, in some court. At the common law, courts are divided into cou;ts of rec- ord and courts not of record. The distinction is, for the most part, purely technical. The superior courts of common law afe deemed courts of record. The court of Chancery in its equity jurisdiction, the court of Admiralty, and the ecclesiastical courts are deemed courts not of record.^ The proceedings of the former court are treated as matters of record ; those of the latter courts are treated, not strictly as matters of record, but as matters as of record ; that is, they are deemed to be of tlie same validity as if they were records. ' § 779. Let us, then, in the first place, consider pleas of matters of record, technically so called. (1.) A common recovery. A defendant in equity may plead a common recovery, duly suffered, with a deed to lead the uses, in bar to a bill, asserting a claim un- der an entail, if the estate, limited to the plaintiff, or under which he claims, is thereby destroyed.^ This doctrine is not confined to a legal entail, but will equally apply to an equitable entail.3 Therefore, a common recovery suffered by a cestui que trust in tail, who is in possession under the trustee, will be sufficient to bar all remainders and reversions depending on such estate tail, although there be no legal tenant to the precipe, but only an equitable tenant to the precipe.* In such a case, however, the trust estate must be conveyed to a third person, who thus be- comes an equitable tenant in tail to the precipe, against whom the suit must be brought in the same manner, as in recoveries of ' Bacon, Abridg. tit. Courts, D. 2, in margin. Every court, having a power to fine or imprison, is deemed a court of record at the common law. Bacon, Abridg. tit. Courts, D. 2 ; 3 Black. Com. 24. Mr. Justice Blackstone (ibid.) has given other distinctions, and has stated that all courts of record are the king's courts ; and that a court not of record is the coiirt of a private man, whom the law will not intrust with any discretionary power over the fortunes or liberty of his fellow-subjects. This distinction is wholly inapplicable to the court of Chan- cery, and to the court of Admiralty, and generally to thei ecclesiastical courts. They are all courts of the king ; yet they are not courts of record. In America, courts of equity are generally, perhaps not universally, deemed as much courts of record, as courts of common law. The courts of the United States are all courts of record. ' Beames, PI. in Eq. 195 ; Cooper, Eq. PI. 264 ; Mitf. Eq, Pl. by Jeremy, 253 ; Attorney-General v. Sutton, 1 P. Will. 754. ' Ibid. ' Ibid. 632 EQUITY PLEADINGS. [CH. XIV. legal estates.^ But recoveries of this kind operate only on the trust estate, whereof they are suffered, and the equitable remain- ders or reversions expectant thereon ; and they do not affect any legal estate. So that the legal estate cannot be barred by an equi- table recovery,^ § 780. (2.) The plea of a judgment at law in a court of re- cord. If the judgment of a court of ordinary jurisdiction has finally decided the rights of the parties, that judgment may in general be pleaded in bar of a bill in equity. Thus, where a bill was brought by a person claiming to be son and heir of Jocelin, Earl of Leicester, and alleged, that the earl, being tenant in tail of estates, had suffered a recovery, and had declared the use to himself and a trustee in fee, and that the plaintiff had brought a writ of right to recover the lands ; but that the defendant had possession of the title-deeds, and intended to set up the legal estate, which was vested in the trustee ; and prayed a discovery of the deeds, and that the defendant might be restrained from setting up the estate in the trustee ; the defendant pleaded, as to the dis- covery of the deeds and relief, a judgment in her favor in a writ of right ; and averred, that the title in the trustee, which the bill sought to have removed, had not been given in evidence ; and the plea was allowed.* ^ Cooper, Eq. PI. 264, 265 ; Beames, PL in Eq. 195, 196 ; Goodrich v. Brown, 1 Ch. Cas. 49 ; S. C. 2 Freem. 180 ; North v. Way, 1 Vern. R. 13, and Mr. Rath- by's note (1), p. 14. ' Cooper, Eq. PI. 265; Phillips v. Brydges, 3 Ves. 120, 125, 126. This plea is founded upon the analogy of the law ; and would, therefore, probably be gov- erned by the rules applied to the same plea in a court of law, some of which are stated in Beames, Pi. in Eq. 196, 197. ' Mitf. Eq. PI. by Jeremy, 253, 254 ; Cooper, Eq. PI. 266 ; Beames, PI. in Eq. 197, 198. Lord Redesdale had added the following comments on this case: "In this case, the bill was brought before the trial in the writ of right, and the plain- tiff had proceeded to trial without the discovery and relief sought by his bill, for the purposes of the trial. The plea was subsequent to the judgment. It may be doubted, therefore, whether the averment, that the title in the trustee had not been given in evidence on the trial of the writ of right, was necessary ; as the judgment was a bar as a release subsequent to the filing of the bill would have been. And if the plaintiff could have avoided the effect of the judgment, be- cause the title in the trustee had been given in evidence, it should seem that that fact, together with the fact of the judgment, ought to have been brought before the court by another bill, in the nature of a bill for a new trial, either as a supple- mental bill, or as an original bill, the former bill being dismissed." Mitf. Eq. PI. by Jeremy, 254, 255. , §779-781.] PLEAS TO BELIEF. 633 § 780 a. So, where a verdict and judgment were obtained in the Lord Mayor's Court in London, in a foreign attachment, by the defendant against the plaintiff in the bill, on the same subject- matter on which the bill sought relief, a plea, stating the fact, wa"s held good, as the Lord Mayor's Court was a court of competent jurisdiction to decide the matters in dispute between the parties ; and if the matters so in dispute were not finally decided by the judgment, they were there in the proper course for a final decis- ion.i But, then, to support such a plea, it must be averred in the plea, that the same issue was joined in the former suit, as in the bill ; that the subject-matter of the suit was the same, and that the proceedings in the Lord Mayor's Court were for the same object and purpose.^ § 781. The plea will be equally good, not only to a bill founded upon the same original cause of action ; but also to a bill to set aside a verdict and judgment, as obtained against conscience, un- less it contains some allegations of fact, impeaching the verdict and judgment, which would avoid it, and require an answer.^ ' Behrens v. Pauli, 1 Keen, R. 456. * Behrens v. Sieveking, 2 Mylne & Craig, 602. ' Mitf. Eq. PI. by Jeremy, 255 ; Cooper, Eq. PI. 266, 267 ; Beames, PI. in Eq. 198, 199 ; Williams v. Lee, 3 Atk. 223 ; Mitchell v. Harris, 2 Ves. jr. 135. The plea in Williams v. Lee, 3 Atk. 223, is given at large in the Appendix to Mr. Beames, PI. in Eq. 337 - 339. As it is rare it is here inserted. " The plea of Richard Lee, and Mary his wife, to part, and their answer to the residue of the bill of complaint of Henry Williams, complainant : These defendants, by pro- testation, not confessing, or acknowledging all or any the matters and things in the complainant's said bill of complaint to be true, in manner and form as the same are therein set forth and alleged, as to so much of the said bill, as seeks to controvert the value of the several goods and things in the bill mentioned to be bequeathed to the said defendant, Mary Lee, by Urania Goodwin, deceased, in the bill named, in respect of which this defendant, Richard Lee, hath recovered a verdict against the said complainant, and which seeks to controvert the right and title of these defendants, or either of them, to the same goods ; and also as to so much of the said bill, as seeks to impeach the said verdict, which this de- fendant, Richard Lee, hath obtained against the complainant, in respect of the same goods and effects, these defendants plead in bar ; and for plea say, that before the intermarriage of these defendants, this defendant, Mary Lee, (then Mary Polden, spinster,) was possessed of, and legally and well entitled to, the said several goods and effects, by virtue of the last will and testament of the said Urania Goodwin ; and that the complainant afterwards got the same into his cus- tody and power. And these defendants, having afterwards intermarried, and the said complainant refusing to redeliver the said goods and effects to this defendant, Richard Lee, upon a demand by him made thereof, he, this defendant, in Trinity 634 • EQUITY PLEADINGS. [CH. XIV. Indeed, without such allegations, the objection would seem more proper to be taken by demurrer than by plea.^ § 782. And it is not suflScient to show, that injustice has been done ; but it must be shown, that it has been done under circum- stances, which authorize the court to interfere ; because, if a matter has been already investigated in a court of justice of competent jurisdiction, according to the common and ordinary rules of inves- tigation, a court of equity cannot, and ought not to take upon vacation last, brought his action at law against the said complainant, in order to obtain satisfaction for the same goods and effects ; and in Michaelmas term last, declared against the said complainant in an action of trover and conversion of the same goods and effects, and laid his damages therein at three hundred pounds ; to which declaration the said complainant pleaded not guilty. And this defend- ant having replied to, and taken issue upon the said plea, the said issue came on to be tried at the sittings after last Michaelmas term, at Westminster Hall, for the county of Middlesex, before the Eight Honorable Sir William Lee, Knight, Lord Chief Justice of the same court, when and where, upon a full defence made by counsel on behalf of the now complainant, and after evidence given, as well on the behalf of the now defendant, Richard Lee, as of the said complainant, the jury impanelled and sworn to try the said issue, brought in a verdict in favor of this defendant, Richard Lee, for £ 200 damages, besides costs of suit ; which said ver- dict is still in full force, and has not been impeached or set aside by the said court, where the said action was tried ; nor hath the said complainant (to the knowledge or belief of these defendants), so much as complained to the said court of the said verdict, or attempted to obtain a new trial in the said action, by reason that the said jury had found excessive damages, or the said verdict was given against evidence, or to the dissatisfaction of the judge, before whom the said action was tried. And this defendant, Richard Lee, avers, that the aforesaid demands of this defendant, which, are controverted by the said complainant's now bill of com- plaint, and the demands of this defendant, which were so as aforesaid ascertained and established by the said verdict, are the same, and not otherwise, or different. All which matters and things these defendants are ready to verify, maintain, and prove, as this honorable court shall direct, and do plead the same in bar of so much and such parts of the said bill, as are herein before mentioned to be pleaded unto ; and humbly pray the judgment of this honorable court thereupon, and whether they are liable, or shall be compelled to make any further or other an- swer to so much of the said bill, as they have herein before pleaded unto. And these defendants, insisting upon their said plea, and in nowise waiving or depart- ing from the same, or the benefit thereof, but saving to themselves the benefit of the said plea ; and also saving and reserving to themselves all and all manner of advantage and benefit of exception to the many insufficiencies, errors, and imper- fections of the complainant's said bill of complaint, for answer thereunto, or to so much thereof as they are advised concerns them to make answer unto, they, these defendants, answer and say," &c. ' Mitf. Eq. PI. by Jeremy, 255. § 781 - 784.J PLEAS TO RELIEF. 635 itself to enter anew into the merits of the case.i It is bound to presume, that all things have been rightfully done ; and the maxim apphes, expedit reipublice ut sit finis litium. § 783. In the next place as to pleas of matter as of record. (1.) The sentence or judgment of a foreign court, (which is deemed to be a court not of record,) upon the same matter put in contro- versy by the bill, may be pleaded in bar. And it will be a good bar, if the court, pronouncing the sentence or judgment, had juris- diction, with the like exception of such circumstances, as would invalidate a domestic judgment.^ But it is not necessary to set forth the proceedings and judgment at length.^ [* 783 a. But a former adjudication, even in a court of equity, will not be a bar to a subsequent bill, unless the case made by the latter, and the equity, are substantially the same. It is said the grounds of the latter suit must be substantially identical with those of the former.* And the former bill must have been dis- missed upon its merits, to create any bar to subsequent proceed- ings in equity. So also, if the suit in equity is dismissed on the ground that the bill presents no case for equitable relief, it is not competent for the plaintiff to claim an injunction against the de- fendant, who was plaintiff in the former bill, for proceeding to try the same questions embraced in the former bill, in an action at law.5] § 784. The general rule being stated, we are next to consider some of the exceptions to it. If there is any charge of fraud, or if other circumstances are shown by the bill, as a ground for re- lief, the sentence or judgment cannot be pleaded, by a pure plea, in bar of the bill. But the plea must, besides setting, up the sentence or judgment, proceed by suitable averments to deny the fraud, or other circumstances, upon which the sentence or judg- ment is sought to be impeached ; and thus put them in issue by ' Beames, PI. in Eq. 199, 204 ; Bateman v. Willoe, 1 Sch. & Lefr. 204 ; Ante, § 780 a, and cases there cited. ' Mitf. Eq. PI. by Jeremy, 235, 256 ; Cooper, Eq. PI. 266, 267 ; Beames, PI. in Eq. 200, 201; Story on Conflict of Laws, § 584-618; Bowles v. Orr, 1 Younge & Coll. 464. See Henderson v. Plenderson, 3 Hare, R. 100, 113-115. ' Ricardo v. Garcias, 12 Clark & Finnelly, 368. But see the same case before the vice-chancellor, 14 Simons, R. 265. [* * Plunter u. Stewart, 8 Jur. N. S. 317. ' Waine v. Crocker, 31 L. J. ch. 285. See also Londonderry (Lady) v. Baker, 7 Jur. N. S. 811.J 636 EQUITY PLEADINGS. [CH. XIV the plea. And it must also be supported by a full answer to the special charges in the bill.^ § 785. Upon this ground, a case was determined upon a bill brought by the insurers of part of the property taken on board certain Spanish ships at Omoa. The bill charged, that the navy, on whose behalf, as captors, the defendants had insured, were not the real captors, or not the only captors ; that the Spanish ships struck to the land forces ; and, that, although the Court of Admi- ralty had condemned the ships taken as prizes* to the navy, yet that condemnation had been obtained in consequence of the king's procurator-general having withdrawn a claim, made on behalf of the crown, at the instance of the land forces, and of an agreement between the sea and land forces to make a division of the treas- ure ; and that the sentence was, therefore, as against the plain- tiffs, the insurers, not conclusive. The defendants pleaded the sentence of the admiralty, both to discovery of the facts stated in the bill, and to the relief prayed. The plea was, in many respects, informal. But the court was of opinion, that the sentence, thus impeached, could not be pleaded in bar to the discovery sought by the bill ; and that, as a bar to relief, it ought to have been sup- ported by averments, negativing the grounds, on which it was impeached by the bill.^ But a plea of a foreign judgment, set forth in substance and effect, and supported by averments that the matters in issue in the foreign tribunal were the same as those put in issue by the bill, has been held to cover the whole of the matters comprised in the bill, and to be a sufiBcient answer thereto.^ § 786. Where a court not only possesses jurisdiction over a particular cause, but that jurisdiction is of a peculiar and exclusive nature, its sentence or decree, ex directo, in a matter properly cognizable there, is conclusive, whenever the same matter shall come in question collaterally in any other court, whether it be a court of law, or a court of equity.* On this ground the probate ' Mitf. Eq. PL by Jeremy, 256 ; Cooper, Eq. PL 267 ; Beames, PL in Eq. 203, 204; Bowles v. Orr, 1 Younge & ColL 464; Ricardo v. Garcias, 12 Clark & Finnelly, 368. 2 Mitf. Eq. PL by Jeremy, 256 ; Cooper, Eq. PI. 267; Beames, PL in Eq. 203, 204 ; Kicardo v. Garcias, 12 Clark & Finnelly, 368. ' Ricardo v. Garcias, 12 Clark & Finnelley, 368. * Beames, PL in Eq. 201; Griffith v. Hamilton, 12 Ves. 307; Meadows w. Duchess of Kingston, Ambl. R. 756. §784-789.] PLEAS TO RELIEF. 637 of a will in the proper probate or ecclesiastical court, (such court being invested with a competent and exclusive jurisdiction of the subject,) will be a good bar, and may be so pleaded, to a bill of persons claiming as next of kin to a deceased person, who is alleged in the bill to have died intestate ; for the probate of the will is in the nature of a sentence, and is conclusive as to the title of the executor.^ § 787. Upon a similar ground, a foreign probate of the will of a testator, wlio was domiciled, and died in the country, where the will was admitted to probate, and where his personal estate was situate, will be equally conclusive in favor of the title of the execu- tor, in a bill brought by an administrator of the deceased, appoint- ed in tlie country where the suit is brought.^ But such foreign probate will not be conclusive, where there are personal assets in the country, where the bill is brought ; for in such a case, the will must also be proved there, in order to reach those assets.^ § 788. Even if fraud in obtaining a will of personal estate be charged in a bill, that will not be a sufficient ground to impeach the probate, or the validity of it in a court of equity.* For, if the fraud be in the probate of the will in the ecclesiastical court,' or other proper court of probate, that court alone is competent to take cognizance of it, and to recall the probate.^ If the fraud be in obtaining a will of land, that fraud is properly cognizable in a ' court of common law.^ § 789. But if the fraud practised has not gone to the whole will, but only to some particular clause ; or if it has been a fraud prac- tised to obtain the consent of the next of kin to the probate, the courts of equity will lay hold of these circumstances to declare the • Mitf. Eq. ri. by Jeremy, 257 ; Beames, PI. in Eq. 201, 202 ; Cooper, Eq. PI. 268 ; Gaines and wife v. Chew, 2 How. Sup. Ct. K. 619. • Jauncey v. Sealey, 1 Vern. 397; Beames, PI. in Eq. 202; Mitf. Eq. PI. by Jeremy, 258 ; Cooper, Eq. PI. 268. ' Cooper, Eq. PI. 268; Tourton v. Flower, 3 Will. 369, 370; 11 Vm. Abridg. 58, 59; Beames, PL in Eq. 202. t,, • -p „ao « Mitf. Eq. PI. by Jeremy, 257 ; Cooper, Eq. PI. 268 ; Beames, PI. m Eq. 202 ; Gaines and wife v. Chew, 2 Plow. Sup. Ct. E. 619. ' Cooper, Eq. PI. 268 ; Mitf Eq. PI. by Jeremy, 257 ; Beames, PI. m Eq. 202 ; 1 Story on Eq. Jurisp. § 184 and note, 440: Gaines and wife .. Chew, 2 How. ^''•^Coopfr, Eq. PI. 268, 269; 1 Story on Eq. Jurisp. § 184 and note, 440; Gaines and wife v. Chew, 2 Sup. Ct. K. 619. EQ. PL. 54 638 EQUITY PLEADINGS. [CH. XIV. executor to be a trustee for the next of kin.^ Where there are no such circumstances, the probate of the will is a clear bar to a de- mand of personal estate.^ The same principle will apply to cases of fraud committed in relation to real estate, where the fraud does not vitiate the will generally ; but only affects a particular clause or a particular party.^ § 790. (2.) In the next place, as to a decree in a court of equi- ty. A decree of a court of equity is, for most purposes, if not for all, of as high a dignity and character, as a judgment in a court of law. It may be a decree in the same court, or in another court of equity.* In order to entitle a decree to be pleaded to a new bill for the same matter, it must be a decree signed and enrolled, for the same subject-matter, and substantially between the same parties.^ Unless the decree is signed and enrolled, it > Mitf. Eq. PI. by Jeremy, 257, 258 ; Cooper, Eq. PL 268 ; Beames, PI. in Eq. 202, 203. See Barnesley v. Powell, 1 Ves. 284. 2 Mitf. Eq. PI. by Jeremy, 257, 258 ; Cooper, Eq. PI. 268 ; Beames, PI. in Eq. 202, 203. See Barnesley v. Powell, 1 Ves. 284. » 1 Story on Eq. Jurisp. § 439, 440. f Beames, PI. in Eq. 205. See Mr. Cox's note to the case of Robinson V. Tonge, 3 P. Will. 401, note (F.) ; Morrice v. Bank of England, Cas. Temp. Talbot, 217 ; S. C. 4 Bro. Pari. Cas. 287 ; Mitf. Eq. PI. by. Jeremy, 237-239 Id. 245. 5 Mitf. Eq. PI. by Jeremy, 237; Rutland v. Brett, Rep. Temp. Finch, 124 Mallock V. Galton, 1 Dick. R. 65 ; Beames, PI. in Eq. 205, 206 ; Cooper, Eq. PI, 269 ; Gilb. For. Rom. 55 ; Neafie v. Neafie, 7 John. Ch. R. 1 ; Reeve v. Dalby, 2 Sim. & Stu. 464 ; Pickford v. Hunter, 5 Sim. R. 122 ; Hayward v. Constable, 2 Younge & Coll. 43. This plea bears a close analogy to the plea of exceptio rei judicatce in the civil law ; and it will be at once perceived, that the rule of both laws on this subject, are substantially the same, being founded in the same prin- ciples of general justice. The following citation from Mr. Beames's Pleas in Equity, p. 207, -will present the analogy in clear terms. "We have already observed, that the exceptio rei judicatce was a good plea in bar. But the effect is thus expressly qualified by the Digest : Res inter alios judicata cdiis non obest, &e. ; cum res inter alios judicatce nullum aliis prejudicium faciant. Voet collects the effect of many passages, scattered in different parts of the Coipus Juris Civilis, in the following extract, speaking with express allusion to the exceptio litis Jinitm : Non aliter tamen huic exceptioni locus est, quam si lis terminata denuo moveatur inter easdem personas, de e'adem re, et ex eadem pelendi causa : 'Sic ut, uno ex his tribus deficiente, cesset. At the same time, we meet with the following passage in the Digest : Generaliter exceptio rei judicatce obstat, quoties inter eas- dem personas eadem qucestio revocatur, vel alio genere judicii." See also Pothier, Pand. Lib. 44, tit. 1, Exceptio rei judicatce, where the principal texts of the civil law are collected. § 789 - 791.J PLEAS To RELIEF. 639 cannot be pleaded in bar of another suit, although it maybe in- sisted on, by way of answer, as a good defence.^ This doctrine seems to be founded upon purely technical principles ; and it is not very easy to say, why, on principle, a decree, which has deter- mined the rights of the parties upon the same matter, should not be equally a bar, whether enrolled or not.^ But, although a de- cree not enrolled, cannot be pleaded directly in bar of a new suit for want of an enrolment, it may perhaps be pleaded to show, that the new bill is exhibited contrary to the usual course of the court, and that it ought not, therefore, to be proceeded upon ; ^ for, if the decree appeared upon the face of the bill, the defendant might de- mur.* As a decree not signed and enrolled, can only be altered upon a rehearing, so a decree signed and enrolled can be altered only upon a bill of review.^ § 791. In order, however, to be a bar to the new suit, the de- cree must not only be substantially between the same parties, and for the same subject-matter ; but it must also be in its nature final, or afterwards be made so by order of the court ; for otherwise it will not be a bar.^ Therefore, a decree for an account of the principal and interest due on a mortgage, and for a foreclosure in case of non-payment, cannot be pleaded to a bill to redeem, unless there is a final order of foreclosure.^ Nor can a decree, which has been made upon default of the defendant in not appearing at the hearing, be pleaded without an order, making the decree absolute ; the terms of such a decree always being, that it shall be binding on the defendant, unless, on being served with a writ of subpoena for the purpose, he shall show cause to the contrary.^ Nor can a decree of the ecclesiastical court, granting administration to a ' Mitf. Eq. PI. by Jeremy, 239 ; Anon. 3 Atk. 809 ; S. C. Kinsey v. Kinsey, 2 Ves. 577; Cooper, Eq. PI. 269 ; Beames, PI. in Eq. 207, 208. ' Lord Hardwicke, in his judgment in this case, gives no reason for the decision, except that it is against the strict rule of the court ; and the defendant may stay the enrolment by a caveat for forty days, and by petition pray for a rehearing. Anon. 3 Atk. 809. » Mitf. Eq. PI. by Jeremy, 239. ' Ibid. " Mitf. Eq. PL by Jeremy, 239 ; Moore v. Moore, 1 Dick. 66 ; Beames, PI. in Eq. 207, note (4) ; Cooper, Eq. PL 270. , ' Mitf. Eq. PL by Jeremy, 237. ' Mitf. Eq. PL by Jeremy, 237, 238, 245; Cooper, Eq. PL 271 ; Beames, PL in Eq. 208-210. ' Mitf. Eq. PL by. Jeremy, 237, 238, 245; Cooper, Eq. PL 271 ; Beames, PL inEq. 208-210. 640 EQUITY PLEADINGS. [CH. XIV. party as the next of kin of the intestate, be conclusive as to the fact of his being such next of kin, in a suit brought in equity for the distribution of the assets among the next of kin, for the ques- tion came only collaterally before the ecclesiastical court.^ Upon ' Barrs v. Jackson, 1 Younge & Coll. New K. 585, 595. On this occasion Mr. Vice-Chancellor Bruce said : " If the law, as derived from these and other authen- tic sources, is, as I apprehend it to be, that generally the judgment, neither of a concurrent nor of an exclusive jurisdiction, is (whether receivable or not receiv- able) conclusive evidence of any matter which came collaterally in question before it, although within the jurisdiction, or of any matter incjdentally cognizable, or of any matter to be inferred by argument from the judgment ; and that a judgment is final only for its proper purpose and object ; it may be thought difficult to say why the sentence in the present case ought, upon the present question, to be deemed conclusive. The object of that proceeding, and of the sentence, was not distribution, but merely the appointment of an administrator, whose duty, when appointed, it would be to distribute the estate according to law. Nor was it of necessity that the next, or any of the next of kin, should be appointed to that office. There are cases, indeed, in which the sole next of kin of an intestate, although adult, present, under no disability, and of unimpeached conduct, is excluded, not- withstanding the positive provisions of the legislature in that respect. Young v. Pierce; Bridges w. The Duke of Newcastle ; Thomas w. Butler ; Fielder u. Hanger. It is plainly not of the essence of such a sentence that the preferred person should be the next of kin to the intestate. It happened here that such in truth and ex- pressly was the particular ground of what the ecclesiastical court did. But suppose the case of the eccleasiastical court excluding the next of kin from the administra- tion, on the ground of some alleged fact, disqualifying him, in the judgment of that jurisdiction, notwithstanding admitted proximity of blood ; is the truth of that al- leged fact forever incontrovertibly established against him ? But the case of ad- ministration granted to a man as a creditor of an intestate, and the administration subsequently revoked after a contest, and new letters of administration granted to his opponent on the ground that there was no debt (if there may be such a course consistently with the rules and practice of that jurisdiction ;) is it to be said that the former is barred of his demand, and precluded from proving after- wards if he can, and recovering, or receiving his debt? Suppose a dispute for administration with the will annexed, between the sole residuary legatee and atiother, decided in favor of the latter, on the ground of the .former having re- leased or assigned, or being an alien enemy, or an infant ; is he precluded from showing in a court of equity that there was no release or no assignment, or prov- ing there his English birth or true age ? Again : Can it be said that a decision in lunacy upon a question of the committeeship of the real estate between A and B, each claiming adversely to the other to be the lunatic's heir-apparent, although turning upon that point, concludes the fact of heirship between the contending parties after the ancestor's death ? Or, suppose the case of a creditor's bill in equity by a simple contract creditor defeated on the ground of a general release, and admit the decree of dismissal to be final in this court as to the debt demand- ed ; would it be conclusive in another suit by the same plaintiff as a specialty creditor, so as to preclude him from denying the execution of the release, or § 791, 792.] PLEAS TO BELIEF. 641 a plea of a former decree, so much of the former bill and answer must be set forth, as is necessary to show, that the same point was then in issue .^ § 792. A decree made against an infant may be pleaded in bar to a new bill brought by him, after he comes of age ; for an infant is as much bound by a decree, as a person of full age. A decree against a tenant in tail will bind the issue in tail, and even a re- mainder-man, unless, perhaps, under special circumstances.^ And it has been repeatedly determined, that if there be a tenant for life, remainder to his first son in tail, remainder over, and he is brought before the court, before he has issue, the contingent remainders may be barred in the suit.^ showing it void for fraud, or as founded on an illegal consideration ? Lord Ellen- borough certainly, and the court of King's Bench in Outram v. Morewood, de- cided most accurately with reference to the pleadings in that action at common law, that an allegation on record, upon which issue has been once taken and found, is, between the parties taking it, conclusive according to the finding thereof, so as to estop them respectively from litigating that fact once so tried and found. The action, however, in Outram v. Morewood, raised, as to the same property and for the same purpose, the same issue as was raised and tried in the action the judgment wherein was pleaded ; and there are material points of distinction be- tween the system of pleading of the English courts of common law and those of other courts of Justice. But it is, I think, to be collected, that the rule against reagitating matter adjudicated is subject generally to this restriction ; that, how- ever essential the establishment of particular facts may be to the soundness of a judicial decision, however it may proceed on them as established, and however binding and conclusive the decision may, as to its immediate and direct object, be, those facts are not all necessarily established conclusively between the parties, and that either may again litigate them for any other purpose as to which they may come in question, provided the immediate subject of the decision be not attempted to be withdrawn from its operation, so as to defeat its direct object. This limitation to the rule appears to me, generally speaking, to be consistent with reason and convenience, and not opposed to authority. I am not now refer- ring to the law applicable to certain prize and admiralty questions, which are gov- erned by principles in some respects peculiar. On the whole, I am not at present prepared to say, that, according to the proper sense of the expression, the judgment of the ecclesiastical court between these parties was directly upon the point of the alleged illegitimacy of Robert James Smith, and had the establishment of that supposed fact for its proper purpose and object, so as to render his illegitimacy rem judicaium betwfeen the parties on a question of dis- tribution." ' Mitf. Eq. PI. by Jeremy, 237, 238, 245 ; Cooper, Eq. PI. 271 ; Beames, PI. inEq. 208-210, ' Ante, § 144, 145. ' Cooper, Eq. PI. 270; Beames, PI. in Eq. 209, 210; Ante, § 145, 146. 54* 642 ■ EQUITY PLEADINGS. [CH. XIV. § 793. A decree or order, dismissing a former bill for the same matter, may be pleaded in bar to a new bill, if the dismission was upon the hearing, and was not in terms directed to be without prejudice.-' But an order of dismission is a bar only, where the court has determined, that the plaintiff had no title to the relief sought by his bill ; and, therefore, an order dismissing a bill for want of prosecution, is not a bar to another bill.^ And a decree cannot be pleaded in bar of a new bill, unless it is conclusive upon the rights of the plaintiffs in that bill, or of those under whom they claim.^ Therefore, a decree against a mortgagor and an or- der of foreclosure enrolled, has been held not to be a bar to a bill by intervening incumbrancers to redeem, although the mortgagee had no notice of those incumbrances.* And the mortgagee hav- ing, in that case, been long in possession, althoiigh under the cir- cumstances the account taken in the former cause was not deemed conclusive against the plaintiffs in the new bill ; yet the court, on overruling the plea, and ordering the defendant to answer, limited the order, by directing, that the defendant should answer to charges of errors or omissions ; and that the plaintiffs should not unravel the account at large before the hearing.^ [* 793 a. A decree upon bill to redeem, requiring an answer, under oath, which was dismissed on motion of the plaintiff, after answer, and after the expiration of the time allowed by the rules of court for the plaintiff to file his replicatiou, and without the knowledge of the defendant, will be presumed conclusively to have been upon the merits, and will be a bar to a subsequent bill for the same cause, if brought by the same party, or. by one who obtained his title pendente lite.^l § 794. It remains to be observed upon this subject, that, if a bill charges fraud in obtaining a decree, and seeks to impeach it upon that ground, the plea of the decree, signed and enrolled, must contain in it averments, negativing the charges of fraud, and must also be supported by a full answer, denying them.'' Tlius, where ' Mitf. Eq. PI. by Jeremy, 239, 240. ^ Mitf. Eq. PI. by Jeremy, 238, 239 ; Beames, PL in Eq. 210-212 ; Cooper, Eq. PI. 270, 271 ; Jones v. Nixon, 1 Younge, R. 359 ; Perine v. Dunn, 4 John. Ch. R. 140 ; Neafie v. Neafie, 7 John. Ch. R. 1. ' Ibid. « Ibid. ' Mitf. Eq. PL by Jeremy, 238, 239. [* « Browncastle v. Tuttle, 5 Allen, 377.] ' Mitf. Eq. PL by Jeremy, 239, 240. §793-796.] PLEAS TO RELIEF. 643 a decree establishing a modus, was pleaded in bar to a bill for tithes, in which bill the plaintiff stated, that the defendants set up the decree as a bar to his claim; and to avoid the effect of the decree, he charged, that it had been obtained by collusion and stated facts, tending to show collusion, the court was of opinion that the defendants, not having by averments in the plea denied the collusion, although they had done so by the answer in support of the plea, the plea was bad in form; and it was overruled ac- cordingly.i § 795. (3.) Pleas of matters purely in pais go sometimes both to the discovery sought, and to the relief prayed by the bill, or to some part of it ; sometimes only to the discovery, or a part of the discorery ; and sometimes only to the relief, or a part of the re- lief.2 The principal pleas of this nature (although not the only pleas 3) are, (1.) Release; (2.) Stated account; (3.) Settled ac- count ; (4.) An award ; (5.) Purchase for a valuable considera- tion ; and, (6.) A plea of title in the defendant.* § 796. (1.) A plea of a release may. be pleaded in bar, if the plaintiff, or any person under whom he claims, has released the subject of his demand. And, if fraud, surprise, inadequacy of consideration, or any other objection to the release, is charged by the bill, the plea must meet these charges by averments in the body of it ; and it must also be supported by an answer denying them.5 Thus, where the daughter of a freeman of London ac- cepted a legacy of ^£10,000, left her by her father, who recom- mended it to her to release her right to her orphanage part, which she accordingly did, to her brother ; and she afterwards married, and, with her husband, brought a bill to set aside the release, charging, that the personal estate, of which the father died pos- sessed, was much above £100,000, the daughter's share of which, by the custom, would amount to upwards of £40,000 ; the de- fendant pleaded the release. But the court held, that although ' Cooper, Eq. PI. 271, 272 ; Mitf. Eq. PI. by Jeremy, 239, 243 ; Ante, § 671 and note, 676 and note ; Beames, PI. in Eq. 214, 215. " Mitf. Eq. PI. by Jeremy, 258. ' There are other pleas and defences which may be pleaded in bar in equity ; such, for example, as a plea of accord and satisfaction, and others of a kindred nature. Brown v. Perkins, 1 Hare, K. 564, 570. * Mitf. Eq. PI. by Jeremy, 258. ' Cooper, Eq. PI. 271, 272; Mitf. Eq. PI. by Jeremy, 261, 262; Beames, PI. inEq. 218-222. 64-i EQUITY PLEADINGS. [CH. XIV. there was no fraud in the case ; yet that the sister should not auffer by ignorance of her rights, and of the amount of the for- tune to which she was entitled ; and, therefore, the court ordered the defendant to answer as to the computation of the value of the father's personal estate at his death.^ If a release is pleaded to a bill for any matter, it must be under seal. But, if the bill is for an account, and the release is not under seal, it may be pleaded as an account stated.^ § 797. In a plea of a release, the defendant must set out the consideration, upon which the release was made. A plea of a release, therefore, cannot extend to a discovery of the considera- tion ; and, if that is impeached by the bill, the plea must be assist- ed by averments, and also by an answer, covering the grounds, on which the consideration is so impeached.^ Thus, to a bill, stating various transactions between the defendant and the testator of the plaintiff, and imputing to those transactions fraud and unfair deal- ing on the part of the defendant, and impeaching the accounts of the transactions, delivered by the defendant to the testator, on the ground of errors, omissions, unfair and false charges ; and also impeaching a purchase of an estate, conveyed by the testator to the defendant, in consideration of part of the defendant's alleged de- mands ; and praying a general account ; and that the purchase of the estate might be set aside as fraudulently obtained, and that the conveyance might stand as a security only for what was justly due from the testator's estate to the defendant ; a plea of a deed of mutual release, extending to so much of the bill as sought a discovery, and as prayed an account of dealings and transactions prior to and upon tlie day of the date of the deed of release, and to all relief and discovery grounded thereupon, and stating the deed to have been founded on a general settlement of accounts on that day, and to have excepted securities, then given to the de- fendant for the balance of those accounts, which was in his favor, and averring only, that the deed had been prepared and executed without any fraud or undue practice on the part of the defendant, • Cooper, Eq. PL 276, 277 ; Mitf. Eq. PI. by Jeremy, 261, 262 ; Beames, PI. in Eq. 218-222 ; Pusey v. Desbouvrie, 3 P. Will. 315 ; Phelps v. Sproule, 1 Mylne & Keen, 231 ; Gilb. For. Rom. 571. ' Mitf. Eq. PI. by Jeremy, 263 ; Cooper, Eq. PI. 277 ; Beames, PI. in Eq. 221 ; Phelps V. Sproule, 1 Mylne & Keen, 231. ' Mitf. Eq. PI. by Jeremy, 261 - 263. § 796 - 799.] PLEAS TO relief. 645 was overruled.! The ground was, that the consideration for the instrument was the general settlement of accounts ; and if those accounts were liable to the imputations cast upon them by the bill, the release was not a fair transaction, and ought not to preclude the court from decreeing a new account. The plea, therefore, could not be allowed to cover a discovery, tending to impeach those accounts ; and the fairness of the settled accounts was not put in issue by the plea, or supported by an answer denying the imputations charged in the bill.^ § 798. (2.) Pleas of a stated account, and (3.) of a settled ac- count, may be conveniently considered together, as for the most part they depend upon the same considerations. A stated account properly exists only where accounts have been examined, and the balance admitted as the true balance between the parties, without having been paid. When the balance, thus admitted, is paid, the account is deemed a settled account.^ Each of these, and a for- tiori, a settled account, may be pleaded in bar to a bill for an ac- count. But the defendant, who pleads a stated account, must show, that it was in writing, and the balance likewise in writing; or, at least, it mlust set forth, what the balance was, and that the settlement was final. A verbal statement of an account, and a receipt in full, given for the balance then agreed to be due, have been held bad as a plea in bar to a bill for opening the account, if there have been mistakes in the transactions.* § 799. Even a receipt in full of all demands will be no bar to a bill for an account, if there are suspicious circumstances appearing ' Mitf. Eq. PL by Jeremy, 2G1- 263; 1 Story on Eq. Jurisp. § 523-527 ; Capon V. Miles, 13 Price, R. 767; Roche v. Norgell, 2 Sch. & Left. 721; Phelps u. Sproule, 1 Mylne & Keen, 231 ; Parker v. Alcock, 1 Younge & Jerv. 432 ; Fish v. Miller, 5 Paige, R. 26 ; Allen v. Randolph, 4 John. Ch. R. 693 ; Bolton v. Gard- ner, 3 Paige, R. 273 ; Sanders v. King, 6 Madd. R. 61 ; S. C. 2 Sim. & Stu. 279 ; Gilb. For. Rom. 57. ' Ibid. ' Story on Eq. Jurisp. §523,526-528; Endo v. Caleham, 1 Younge, R. 306 ; Capon V. Miles, 13 Price, R. 767; Burk v. Brown, 2 Atk. 399; Sumner v. Thorpe, 2 Atk. 1 ; Phelps v. Sproule, 1 Mylne & Keen, 231 ; Darthez v. Lee, 2 Younge & Coll. 5 ; Weed v. Small, 7 Paige, 573. A stated account and a set- tled account may also be set up by way of defence in an answer. Endo v. Cale- ham, 1 Younge, R. 306. * Cooper, Eq. PL 277, 278; Mitf. Eq. PL by Jeremy, 259, 260; Gilb. lor. Kom. 56 ; Phelps v. Sproule, 1 Mylne & Keen, 231 ; 1 Story on Eq. Junsp. §523-527. 646 EQUITY PLEADINGS. [CH. XIV. in the case ; as, for example, in a bill against a steward. Such receipt will then be considered only as evidence of a particular payment, and not of a general release or discharge upon an ac- count stated, although under other circumstances it would have that effect.^ So, a plea of the payment of a sum of money into the ecclesiastical court, to prevent a commission of appraisement, which sum was accepted, and a receipt given, has been disallowed as a plea in bar to the suit, as not showing, that the party had no further demand ; and the payment of the money was but an intei'- locutory proceeding, which can never be brought up to a judgment in a cause.^ Much less is a right barred by merely signing a re- ceipt, as a witnesS) upon a payment by an executor to an adverse party, making the same demand.^ § 800. Courts of equity will not open a settled account, where it has been signed, or a security taken on the foot of it, unless for fraud, or for errors, distinctly specified in the bill, and supported by evidence.* The expression of " errors excepted," will not pre- vent its being a settled account ; nor will the allegation of gen- eral errors be enough, for specific errors must be pointed out, or it will be final.^ But where there was an admission of the alle- gation of general errors in a settled account between an attorney and client, it was held not binding upon the parties, although no specific errors were pointed out.^ It is a still stronger case for opening such an account at any time, where an attorney has used his influence over his client to get a settlement of an unfair account between them. And in such a case it is enough, if the court see that the account is unfair, without proof of the objec- tion.'' § 801. Where fraud has appeared in a stated account, it has been opened after a considerable lapse of time. But where specific errors are alleged, and even proved, the court has refused, after an acquiescence of eleven years, to open an account ; but has only given the plaintifiF liberty to^ surcharge and falsify.^ In the case of an agent, who was also tenant to the principal, an account was opened in respect of fraud after many years had elapsed ; and the situation of the defendant, as agent, was held to accompany him > Cooper, Eq. PL 278. ' Ibid. ' Ibid. • Ibid. ' Ibid. • Ibid. ' Cooper, Eq. PL 278, 279 ; Beames, PL in Eq. 222-230. » Ibid. §799-804.] PLEAS TO RELIEF. 647 in that of tenant, and to deprive him of the benefit of tlie objection (which It might be competent to another person to make,) of the neglect of the plaintiff in not bringing forward the demand at an earlier period.^ § 802. In the frame of a plea of a stated or settled account to a bill, charging error or fraud, it is necessary to meet those charges by averments in the body of the plea, and also to support the plea by an answer denying them.2 And, if neither error nor fraud is charged, the defendant must by the plea aver, that the stated or settled account is just and true to the best of his knowledge and belief.3 If the bill charges, that the plaintiff has no counterpart of the account, the account should be annexed by way of schedule to the answer, so that, if there are any errors upon the face of it, the plaintifif may have an .opportunity of pointing them out.* As the delivery up of vouchers is an affirmation, that the account be- tween the parties was a stated one ; if this has taken place at the time the account was stated, it seems to constitute the proper sub- ject of an averment in a plea of this nature.^ § 803. An award may be pleaded to a bill to set aside the award and open the account ; and it is not only good to the merits of the case, but likewise to the discovery sought by the bill.^ If fraud or partiality are charged against the arbitrators, those charges must not only be denied by way of averment in the plea ; but the plea must be supported by an answer, showing the arbitrators to have been incorrupt and impartial.^ And any other matter stated in the bill, as a ground for impeaching the award, must be denied in the same manner.^ § 804. But a plea of an agreement or covenant to refer all mat- ters of dispute to arbitrators, cannot be pleaded in bar of a bill brought respecting those matters, whether the agreement or cove- ' Cooper, Eq. PI. 279 ; Beaumont v. Boultbee, 5 Ves. 485 ; Beames, PI. in Eq. 225, 226, 228. ' Cooper, Eq. PI. 279, 280; Mitf. Eq. PI. by Jeremy, 259, 260; Beames, PI. in Eq. 222, 223, 225, 226 ; Phelps v. Sproule, 1 Mylne & Keen, 231 ; Gilb. For. Kom. 56, 57. > Ibid. " Ibid. ' Ibid. • Mitf. Eq. PI. by Jeremy, 260, 261 ; Cooper, Eq. PI. 280. ' Mitf. Eq. PI. by Jeremy, 260, 261 ; Cooper, Eq. PI. 280 ; Beames, PL in Eq. 230-233 ; Dryden v. Kobinson, 2 Sim. & Stu. 529; Evans v. Harris, 2 Yes. & Beam. 364. ' Ibid. 648 EQUITY .PLEADINGS. [CH. XIV. naut be between partners or between other persons. Indeed, it seems impossible to maintain, that such a contract should be spe- cifically performed, or should bar a suit, unless the parties had first agreed upon the previous question, what were the matters in difference, and upon the powers to be given to the arbitrators.^ Amongst the latter the same means of obtaining a discovery upon oath, and the production of books and papers, as can be given by a court of equity, might be essential to justice.^ The nomination of arbitrators also must be a subject on which the parties must pre- viously agree ; for if either party should object to the person nom- inated by the other, it would be unjust to compel him to submit to the decision of the person so objected to, as a judge chosen by him- self.^ It must also be determined, that all the subjects of differ- ence, whether ascertained or not, must be fit subjects for the de- termination of arbitrators, which, if any of them involved impor- tant matter of law, they might not be deemed to be.* § 805. (5.) A plea of a purchase for a valuable consideration. Supposing a plaintiff to have a full title to the relief, which he prays, and the defendant can set up no defence in bar of that title ; yet if the defendant has an equal claim to the protection of a court of equity to defend his possession, as the plaintiff has, to the as- sistance of tlie court to assert his right, the court will not interpose on either side.^ This is particularly the case where the defendant claims under a purchase or mortgage for a valuable consideration, without notice of the plaintiff's title, which he may plead in bar of the suit.® Such a plea must aver, tliat the person who conveyed or mortgaged to the defendant, was seised in fee, or pretended to be so seised, and was in possession, if the conveyance purported an immediate transfer of the possession at the time, when he exe- cuted the purchase or mortgage deed.^ It must aver a convey- > Mitf. Eq. PI. by Jeremy, 264, 265 ; Cooper, Eq. PI. 281 ; Beames, PI. in Eq. 231, 232. » Ibid. " Mitf. Eq. PI. by Jeremy, 264, 265 ; Cooper, Eq. PI. 281 ; Beames, PI. in Eq. 231, 232. * Ibid. * We have already had occasion to suggest that this plea seems equally good in answer to a title by the plaintiff in his bill set up as a legal title, as it is to an equitable title. Ante, § 604 a; Payne v. Compton, 2 Younge & Coll. 457 ; Flagg V. Mann, 2 Sumner, R. 507, 508 ; Mitf. Eq. PI. by Jeremy, 274, 276. » Ante, § 603, 604. ' Ante, § 602 -604 a; Mitf. Eq. PI. by Jeremy, 274, 275; Brandlyn u. Ord, 1 Atk. 571. § 804 - 806.] PLEAS TO BELIEF. 649 ance, and not articles merely ; for if there are articles only, and the defendant is injured, he may sue at law upon the covenants in the articles.^ It must aver the consideration for, and the actual pay- ment of it ; a consideration, secured to be paid, is not sufficient.^ [* § 805 a. The defendant cannot set up the defence of being a bond fide purchaser for value, orally at the hearing ; such defence should be pleaded formally, or set up by way of answer, the same as any other defence.^ And in denying notice, as the foundation of a superior equity, the plea or answer must not only negative such notice, in general terms, but in specific terms, as to all the circumstances upon which it is claimed in the bill.*] § 806. The plea must also deny notice of the plaintiff's title or claim previous to the execution of the deed, and payment of the consideration ; and the notice so denied must be notice of the existence of the plaintiff's title, and not merely notice of the ex- istence of a person, who could claim under that title. ^ If partic- ular instances of notice, or circumstances of fraud, are charged, they must be denied as specially and particularly, as charged in the bill.® The special and particular denial of notice or fraud must be by way of answer, that the plaintiff may be at liberty to except to its sufficiency. But the notice of fraud must also be denied generally by way of averment in the plea, otherwise the •fact of notice or of fraud will not be in issue.^ The general de- ' Ibid. ; Mitf. Eq. PI. by Jeremy, 274, 275 ; Brandlyn v. Ord, 1 Atk. 571. » Ante, § 604 a. [* » Phillips V. Phillips, 31 L. J. Ch. 321 ; 8 Jur. N. S. 145 ; 3 Giff. 200. * Minor V. Willoughby, 3 Min. 225.] ' Mitf. Eq. PI. by Jeremy, 275, 276 ; Hughes v. Garner, 2 Younge & Coll. R. 328, 335 ; Ante, § 662 ; Boone v. Chiles, 10 Peters, R. 177, 210, 211, 212; Cum- mings V. Coleni.in, 7 Rich. Eq. R. 520. ' Ibid.; Ante, §662. ' Mitf. Eq. PL by Jeremy, 274 - 276, 288 ; Cooper, Eq. PI. 281 - 285 ; Gilb. For. Rom. 57, 58 ; Beames, PL in Eq. 233 - 243 ; Meadows v. Duchess of King- ston, Ambl. R. 756 ; Hoare v Parker, 2 Bro. Ch. B. 66 ; S. C. 1 Cox, R. 224 ; Mitf. Eq. PL by Jeremy, 277, note (s) ; 2 Story on Eq. Jurisp. § 1502-1505 ; Hare on Discov. 89 - 104 ; Jackson v. Rowe, 4 Russ. R. 514. If the conveyance does not purport to be an immediate transfer of the possession at the time of executing the purchase or mortgage deeds, (as in a plea of title from one having a particular estate, of which he v.as not in possession as a reversion,) it has been held, that in such case the plea must set out how the f ^f "S P'f .^^^*:^"^ entitled to such reversion. Bat it is not necessary, that the defendant should in such plea aver, that he himself is in possession ; nor is it necessary that he should actually be so, or even appear entitled thereto; this plea not being a E Mitf. Eq. PL by Jeremy, 281, 282; Cooper, Eq. PL 291, 292; Beames, PL in Eq. 249. See Wigram on Points of Discov. 147-153, 1st edit. p. 65; Id. 347, 348. ' Mitf. Eq. PL by Jeremy, 282 ; Cooper, Eq. PL 292 ; Beames, PL in Eq. 252; 1 Mont. Eq. Pi. 261-263. ' Ante, § 549-607, 710-722. * Beames, PL in Eq. 252- 254 ; Cooper, Eq. PL 292, 293 ; Ante, § 551-555 ; Hare on Diseov. 110, 116, 119. * Mendizabel v. Machado, 1 Sim. K 68 ; Hare on' Discov. 41, 42, 46 - 60, 127 ; Mitf. Eq. PL by Jeremy, 154, 231, 233, 282; Tarlton v. Hornby, 1 Y. & Coll. 172; Quilter v. Mussendine, Gilb. Eq. R. 228, 229 ; Vernon v. Vernon, 2 Mylne & Craig, 145 ; Crouch v. Hickin, 1 Keen, R. 385. » Beames, PL in Eq. 254, 255; Cooper, Eq. PL 293, 294; Ante, § 493-496; Mitf. Eq. PI. by Jeremy, 228-230, 232, 233. §816.-819.] PLEAS TO BILLS OF DISCOVERY. 657 municated ; or an alien enemy ; or a person attainted ; or an infant; or a feme covert; or an idiot; or a lunatic ;^ or a bank- rupt disabled to sue.2 So, if the plaintiff has no title to the char- acter, which he assumes in the bill of discovery ; as if he sues as administrator, executor, heir, partner, or creditor ; the defendant may by plea, negative, that he is administrator, executor, heir, partner, or creditor.^ So, the defendant may, in like manner, plead to the discovery, that he has no interest in the subject- matter of the controversy ; but he is a mere witness ; or that he does not sustain the character, in which he is sued ; such as ad- muiistrator, executor, heir, partner, or creditor ; * or that there is a want of privity between him and the plaintiff to sustain the bill.5 § 819. It should be observed, that if a claim of interest is alleged by a bill against a person, who has no interest in the sub- ject-matter, he cannot by demurrer protect himself from a discov- ery ; but he must resort either to a plea or to a disclaimer ; by either of which means, it should seem, he may protect himself from making by answer that discovery, which he may properly be required to make, if called upon as a witness.^ If the defendant pleads to a bill of this sort, the plea must by averment meet the charge of interest, and the plea must be supported by an answer denying such claim.^ In some cases, however, the court has al- lowed a defendant to protect himself by answer, denying the charge of interest, from answering to matter, to which he may be after- wards called upon to answer, in the character of a witness. And perhaps, in justice to those, against whom he may be afterwards called upon to give evidence, as a witness, he ought not to be pre- 1 See Lowndes v. Taylor, 1 Madd. R. 423 ; S. C. 2 Eose, R. 363 ; Mitf. Eq. PI. by Jeremy, 66, 67, 232, 233, 282, note (n) ; Tarlton v. Hornby, 1 Y. & Coll. 172; Beames, PI. in Eq. 254, 255; Ante, § 495, S16, 726. « Ante, § 722 - 734. • Ante, §493-496; Beames, PI. in Eq. 120-128, 254, 256, 257; Cooper, Eq. PI. 293, 294; Mitf. Eq. Pit by Jeremy, 187, 230, 282, 283; Hare on Discov. 41, 42, 46. • Mitf. Eq. PI. by Jeremy, 188, 283 ; Beames, PI. in Eq. 130, 131, 256, 257 ; Hare on Discov. 63-83 ; Cooper, Eq. PI. 294, 295; Ante, § 262, 323, 519, 570, fi71 ' Mitf. Eq. PI. by Jeremy, 158, 159, 234 ; Hare on Discov. 63-68, 105-109; Ante, § 513, 571 ; Cooper, Eq. PI. 294. • Cooper, Eq. PI. 294, 295. ' Ibid. ; Beames, PI. in Eq. 265. 658 EQUITY PLEADINGS. [CH. XV. viously examined to the same matters upon a bill, under the pre- tence of an interest, which he has not.^ § 820. (3.) Pleas to the bill, or to the frame of the bill. The iisual pleas, under this head, of the pendency of another suit, of want of parties, and of splitting up or multiplying suits, do not apply to a bill of discovery.^ But perhaps the objection, that the bill for a discovery is multifarious, would not fall under the same predicament ; as it may compel the defendant to give answers and discoveries, as to matters, wholly distinct and independent, and which can, with no propriety, belong to any single suit, either at law, or in equity.^ Perhaps, also, the objection, that the parties are not the same in the suit in equity, as in the suit at law, in aid of which the discovery is sought, if not apparent on the bill, may be brought forward by a plea ; * for, in such a case, there would be a clear misjoinder of parties.^ The same objection would seem to apply, if the defendant was not a party to the suit at law ; for, ordinarily, a discovery from him could not be material.^ A plea, ' Mitf. Eq. PI. by Jeremy, 188, 283, 284. But see Hare on Discov. 256 - 259. '^ Cooper, Eq. PI. 208, 209 ; Beames, PI. in Eq. 273, 274 ; Hare on Discov. 124 - 126 ; Mitf. Eq. PI. by Jeremy, 200, 280 ; Ante, § 610. = Ante, § 610. Lord Redesdale says (Mitf. Eq. PI. by Jeremy, 200, 201,) that a demurrer will not lie to a bill of discovery, because the bill has split mat-; ters, and is brought for the discovery of part of a matter only ; for such a demur- rer would only amount to an objection, that the discovery would be insufficient. But he adds, that it should seem, that a demurrer for multifariousness would hold to a bill of discovery for several distinct matters against several distinct defend- ■ ants in one bill. See also Ante, § 287, 610; 1 Mont. Eq. PI. 262; Cooper, Eq. PI. 209 ; Beames, PI. in Eq. 273, 274. It may also be proper to remark, that a bill is demurrable, if it prays relief against some of the defendants, and a discovery only against others. And the objection of a want of interest in a defendant equally applies, whether he is the sole' defendant, or is joined with other defend- ants. Hare on Discov. 65. * Ante, § 610; Glynn v. Scares, 3 Mylne & Keen, 450, 469-472. ' But if the suit at law is brought by an agent in his own name, in behalf of his principal, it has been held, that the defendant in the suit at law may file a bill in equity, for a discovery against the principal, in' aid of his defence at law. Carr v. Soares, in Exchequer (England), in January, 1836, 14 Law Journ. 68 ; 1 Younge & Coll. 645. But the contrary has been since held. See Glynn v. Soares, 3 Mylne & Keen, 450, and Irving v. Thompson, 9 Sim. K. 17. See Ante, § 569, 610, note ; Kerr v. Rew, 10 Sim. R. 370 ; Queen of Portugal v. Glynn, 7 Clarke & Fin. R. 466. " Ante, § 569 ; Glynn v. Soares, 3 Mylne & Keen, 450, 469-472 ; Irving v. Thompson, 9 Sim. R. 17 ; Kerr v. Rew, 10 Sim. R. 370; Ante, § 569-610, and note. §819-821.] PLEAS TO BILLS OF DISCOVEKY. 659 that the value of the matter in controversy is beneath the dignity of the court, would also seem to be a good ground of a plea to the discovery sought.^ § 821 (4.) Pleas in bar. Under certain circumstances, many of the pleas m bar to bills of relief, already enumerated, may per- haps furnish a good ground for a plea in bar of a bill of discovery It was for a long time a matter of controversy, whether the de- fendant to a bill, seeking a discovery in aid of an action at law, can plead in bar to the discovery that which is merely matter of legal defence to the action at law.^ [And in a very recent case in America, it was held that he could not.^] But the prevailing doc- trine established by the recent authorities seems to be, that it may be so pleaded.* Thus, for example, a plea of a fine, or of a former judgment ; or of a former decree upon the merits ; or a plea of the statute of frauds and perjuries ; or a plea of the statute of limitations ; or a plea of a release, or of a stated account, or of an award, may be so ple^ded.^ In such cases, however, the plea would be applicable only, when no circumstances were stated in the bill, to avoid the effect of the bar ; for, if they were so stated, the discovery could not be withholden ; since the plea would ' Cooper, Eq. PI. 193 ; Ante, § 500, 502; Smets v. Williams, 4 Paige, R. 364. ' See this subject discussed in Beames, Pi. in Eq. 274-278, who maintains the validity of a plea under such circumstances. Lord Thurlow, in Hindman v. Taylor, 2 Bro. Ch. R. 7 ; S. C. 2 Dick. 651, decided against the validity of the plea, and Mr. Belt in his note to the same case supports the decision. Ji\ Debigge V. Howe, cited 2 Bro. Ch. R. 7 ; S. C. Mitf. Eq. PI. by Jeremy, 187, it was held, that the objection, if apparent on the record, might be taken by demurrer, that the plaintiff had no right of action. The question has been asked. Why not by plea, if the objection is not apparent on the record ? See Mendizabel v. Mac- hado, 1 Sim. R. 68; S. C. cited 4 Sim. R. 172. See Hare on Discov. 34, 41, 46-62; where the subject is also discussed. Mr. Wigram (Points of Discov. 153, 156-162, 1st edit.; Id. p. 39-42, 2d edit.) dissents from the doctrine of Lord Thurlow in Hindman v. Taylor, 2 Bro. Ch. R. 7 ; and his reasoning on the subject is very able. ^ Sperry v. Miller, 2 Barb. Ch. R. 632. And see Welf Eq. PI. 135. • Beames, PL in Eq. 274, 275; Baillie v. Sibbald, 15 Ves. 185 ; McGregor v. East India Company, 2 Sim. R. 452; Gait v. Osbaldeston, 1 Russ. R. 158; S. C. 5 Madd. R. 428; Hare on Discov. 50, note (x) ; Wigram, Points of Discov. 156- 162, 1st edit.; Id. p. 32-43, 2d edit.; Mendizabel v. Machado, 1 Sim. R. 68, 78; Hare on Discov. 50, 53-56, 289-297; Leigh v. Leigh, 1 Sim. R. 349, 371, 373; Jeremy v. Best, 1 Sim. R. 373 ; Cork v. Wilcock, 5 Madd. R. 331. But see Hmd- man v. Taylor, 2 Bro. Ch. R. 7 ; S. C. 2 Dick. R. 651. ' Ibid. 660 EQUITY PLEADINGS. [CH. XV. amount to a denial of the means necessary to establish the grounds, on which the suit, in aid of which the discovery is sought, was brought.^ § 822. Be the doctrine, however, as it may, where no such cir- cumstances affecting the plea are stated in the bill, it seems cer- tain, that the defendant may plead a perfect title to the premises in himself, in bar of any discovery sought by a bill relative there- to.^ Thus, where a plaintiff, claiming as heir at law of her moth- er, filed a bill for a discovery and injunction to restrain the de- fendant from setting up outstanding terms, a plea of a fine levied in 1764 by the mother and her husband, and a deed, declaring the uses of the fine to the husband in fee ; and a conveyance for a valuable consideration by the husband to the persons, under whom the defendants were stated in the bill to have derived their alleged title, with an allegation of a quiet possession from the time of the conveyance down to the filing of the bill, was held a good plea to the discovery and the relief.^ § 823. Where the question raised upon the state of the plead- ings in the suit at law, in aid of which a discovery is sought, ap- pears to be a mere question of law, it may be pleaded in bar of a discovery of any facts, which might, if the pleadings had termina- ted in an issue of fact, have been important at the trial ; for while any mere question of law is under the consideration of the court, which may dispose of the whole cause, a court of equity will not interfere by anticipation of an event, which may render a discov- ery useful ; but it will await that event.* Therefore, where the action at law was brought for a supposed libel, and a plea of justi- fication was put in, to which the plaintiff in the action filed a de- murrer, pending which a bill of discovery was brought in support of the matters of fact stated in the justification ; the court held a plea, setting forth the state of the pleadings in the suit at law, and averring,^that the demurrer was good in law, and would be al- lowed to a good plea against the discovery ; for, upon such a state of the pleadings, it was impossible for tlie court to say, that the discovery, if given, could ever be used in the suit at law.^ 1 Ibid. ' Gait V. Osbaldeston, 1 Euss. R. 158, reversing the same casein 6 Madd. R. 428. » Ibid. * Stewart v. Lord Nugent, 1 Keen, E. 201. ' Stewart v. Lord Nugent, 1 Keen, R. 201. The substantial parts of the plea § 821 - 825.] PLEAS TO BILLS OF DISCOVEEY. 661 § 824. The pleas in bar, however, which are most usual, and are peculiarly appropriate to bills of discovery, are those which render it improper for a court of equity to compel the discovery sought. These pleas are, (1.) That the discovery may subject the defendant to pains, or penalties, or a criminal prosecution ; (2.) That it will subject him to a forfeiture, or something in the nature of a forfeiture ; (3.) That it will betray the confidence reposed in him as counsel, attorney, solicitor, or arbitrator ; and, (4.) That he is a purchaser for a valuable consideration without notice of the plaintiff's title.^ § 825. The doctrines applicable to these different defences, have been already anticipated in treating of the same 'subject under the head of demurrers and pleas to bills of relief, and of demurrers to bills of discovery.2 In relation to the plea, that the discovery will in this case are given in the report, and may serve as a useful precedent in cases of this nature. See also Bampton v. Birchall, 11 Beavan, 38. 1 Mitf. Eq. PI. by Jeremy, 284 ; Cooper, Eq. PI. 295 ; Beames, PI. in Eq. 258, 263, 271, 272, 278; Ante, § 575-578, 599-603, 607. It might be here added, that it would also be a good plea in bar, that the bill sought a discovery of the defendant's title, and not merely of the plaintiff's title, if the facts should be so disguised in the bill as not to be open to a demurrer. See Ante, § 572 ; Wigram on Points of Discov. 151-190; Id. 213, 214; Id. 47, 1st edit.; Id. p. 32-45; Id. 364, 365 ; Id. 67, 2d edit.; Bellwood v. Wetherell, 1 Younge & Coll. 211. ^ Upon this head, that the discovery may subject the defendant to a penalty, forfeiture, or criminal prosecution, see Ante, § 521-526, 575-598. See also Maccallum v. Turton, 2 Younge & Jerv. 183 ; Nelme v. Newton, 2 Younge & Jerv. 186, note (V). See also Mitf. Eq. PI. by Jeremy, 284-288; Cooper, Eq. PI. 295 - 300 ; Hare on Discov. 131-156. In relation to pleas of a purchase for a valuable consideration without notice, see Ante, § 603, 606, 805-813; Mitf Eq. PL by Jen ray, 199, 274, 284, 288; Beames, PI. in Eq. 277, 278, and cases there cited; Cooper, Eq. PI. 281, 300; 2 Story on Eq. Jurisp. §1502-1505. As to pleas, that the discovery will compel the party to betray the confidence reposed in him as counsel, attorney, or arbitrator, see Ante, § 599-602; Mitf. Eq. PI. by Jeremy, 199, 274, 284, 288; Cooper, Eq. PI. 295-300; Beames, PI. in Equity, 271, 274, where, in the notes, the authorities to each head are dis- tinctly collected. The principal authority cited for the case of arbitrators is Anon. 3 Atk. 644. See the form of a plea, that the discovery would subject the defendant to penalties and forfeitures, in Beames, PI. in Eq. Appendix, 333-336, being the actual plea in Hutchins v. Landar, Cooper, Eq. R. 34, allowed by Lord Eldon. Mr. Hare (Hare on Discov. 290-292,) has made some important remarks on the subject of pleas to discovery, and the difficulty in many cases of 80 framing them, as to avoid the necessity of an answer. " The validity of a plea," say°s he, "is frequently determined upon considerations apart from the EQ. PL. 56 662 EQUITY PLEADINGS. [CH. XV. expose the defendant to penalties and forfeitures, it should dis- tinctly appear, that the penalties and forfeitures would accrue, if not apparent on the bill. If the defendant should answer gener- ally, he must answer fully ; and if he means to object in any an- swer, that particular discoveries will expose him to penalties and forfeitures, he must set up that in his answer, as a specific ground of objection to answering.^ In relation also to the plea, that the defendant is a purchaser for a valuable consideration without no- tice of the plaintiff's title, it may, for the purpose merely of add- ing another illustration, be repeated, that a court of equity will merits of the case; and it may be objected, that the judgment against the plea on a point of form should not be conclusive upon the discovery. It might impose upon the defendant the necessity of disclosing important matters, with regard to which the plaintiff may, after all, have no concern. This argument seems to pos- sess peculiar force, where the bill seeks discovery in aid of a trial at law. The rules with regard to pleading are so essentially different at law and in equity, that it is more easy to point out distinctions than to suggest analogies. The im- portant question of duplicity affords a pregnant example of the difficulty of recon- cijing their respective forms. The defendant is entitled to be protected from discovery of matters, which are not in issue at law ; and for this purpose he must resort to a plea. But it is often impossible to frame his plea in equity sufficiently extensive to cover all such matters, without rendering it double, and therefore bad. ' The defence,' it was argued in one case, ' consists of a great number of facts, not of- one short fact, that might be pleaded, or of a combination of facts involving one point.' In law, there would be no difficulty ; the rule there is reciprocal ; it applies both to the plaintiff and defendant ; to the declaration, as well as to the plea. In equity, it is an obstacle to the defendant, and not to the plaintiff; an objection to the plea, and not to the bill. In support of the strictness of equitable pleas, it is said, that a plea is not the only mode of defence in equity. But this argument is inapplicable, where the bill is for discovery ; for then the plea is the only defence ; and in such cases discovery is frequently given, in which the event of the cause proves the plaintiff not to have had any interest. This, however, is an inconvenience attending the administration of justice, rather than a defect in the system of equity. The determination of the rights of property, which are in dispute, is the end ; discovery is but the means of eliciting truth, for the attainment of that end. It is incidental to litigation, that parties must be sometimes harassed by inquiries with respect to subjects, which in the result appear to have been unnecessarily agitated. But against this evil there are many circumstances, which operate as safeguards ; and the objec- tions, which may be taken to the discovery of matters that are immaterial to the question in dispute, or the disclosure of which would be dangerous or prejudicial to the defendant, afford, when they are properly insisted upon, the means of an ample protection." See also Robertson v. Lubbock, 4 Sim. R. 161. Ante, § 503-526, 565-604. 1 Sloman v. Kelly, 3 Younge & Coll. 673. See Post, § 846-848. § 825-826.] PLEAS TO BILLS NOT ORIGINAL. 663 not in general compel him to make any discovery, which may af- fect his own Utle^ Thus, if a bill is filed for a diLvery oZods purchased of a bankrupt, the defendant may plead, that he is a purchaser boM fide for a valuable consideraLn, paid before the TaZ;:;/ '^'^'^^^^^^^ '^"^'' ^^^^ ^-^^^-^^ -^ ^^^^ ^^ fl Kl ^fu' ,t ^^'^ ""^ privilege, or counsel, upon the ground that the bill calls upon the defendant to disclose facts, which would be a betrayal of professional confidence, must be drawn with great precision, showing clearly, that the information asked for was real y derived from the client himself, and it will not be sufficient to allege that it was acquired, as solicitor for the client.8] CHAPTER XVI, PLEAS TO BILLS NOT ORIGINAL. • [* § 826. Pleas to bills not original. § 827. Pleas to supplemental bills, &c. 4 828. Certain objections must be taken by pleas. 4 829. Pleas to bills of revivor. 4 830. The want of proper parties may be objected to such bill. § 831. Such bill may be barred by lapse of time. § 832. Pleas to cross bills. 4 833. Pleas to bills of review. 4 834. Pleas to the new matter alleged. 4 835. Pleas to bills in the nature of bills of review. 4 836. Plea of decree in bar of fraud, must deny facts in bill 4 837. Pleas to bills to carry decrees into execution.] § 826. Hitherto we have been considering pleas with reference to original bills only ; and of these a bill of interpleader rarely gives rise to any plea ; and a bill of certiorari, from the nature of the proceedings upon it, will not, in general, admit of a plea.* Let us now proceed to the consideration of pleas to bills not ori- ginal, which will detain us but for a short time ; since the same • Mitf. Eq. PI. by Jeremy, 288 ; Cooper, Eq. PI. 300 ; Beanjes, PI. in Eq. 277, 278 ; Hare on Discov. 89 - 104 ; Perrat v. Ballard, 2 Ch. Cas. 72, 73. " Ibid. [• ' Marsh V. Keith, 1 Drew. & Sm. 342.] * Mitf. Eq. PI. by Jeremy, 288-290; 1 Mont. Eq. PI. 240, 241, 245. 664 EQUITY PLEADINGS. [CH-XVI. grounds of plea will in many cases hold to these kinds of bills, ac- cording to their respective natures, as do to original bills. Some of them, however, as we have already seen, admit of a peculiar defence ; and that defence may sometimes be urged by way of plea.^ We shall pass rapidly over the subject, as no extended no- tice of these bills seems necessary. § 827. First, as to pleas to supplemental bills, and bills in the nature of supplemental bills. If a plaintiff is not entitled to file a supplemental bill, and the objection does not appear upon the face of it, so that the defendant may demur, he must state his objec- tion by way of plea.^ Thus, as has been already mentioned, if a bill is filed by or against a tenant in tail, in respect of the estate tail, the remainder-man will in general be bound by the proceed- ings ; and a supplemental bill, therefore, will be sufficient to make him a party to them^ But, if there are special circumstances in the case, as, that the bill was filed, not in respect of charges, cre- ated upon the inheritance by the donor, but in respect of contracts by the tenant in tail, such particular circumstances may, it should seSm, be offered by way of plea to the supplemental bill.* § 828. If a supplemental bill is brought upon matter which arose before the original bill was filed, and might be inserted into it by way of amendment, and this is not apparent on the bill, the defendant may plead that fact, to defeat it.^ On the other hand, if a bill is amended by stating a matter,, which has arisen subse- quent to the filing of the bill, and which consequently ought to have been the subject of a supplemental bill, advantage may be taken of the irr9gularity by way of plea, if it does not sufficiently appear on the bill to found a demurrer. But if the defendant an- swers, he waives the objection to the irregularity, and cannot make it at the hearing.^ § 829. (2.) As to pleas to bills of revivor, or bills in the nature of bills of revivor. If a bill of revivor is brought without sufficient cause, to revive a suit against the defendant, and this is not ap- parent on the bill, the defendant may plead the matter necessary to show, that the plaintiff is not entitled to revive the suit against ' Mitf. Eq. PI. by Jeremy, 288-290; Ante, § 611-646. ' Ibid. « Cooper, Eq. PL 303 ; Beames, PI. in Eq. 298-302; Ante,.§ 612-616. * Ibid. 5 Mitf. Eq. PI. by Jeremy, 290, 293, 294 ; Cooper, Eq. PI. 303, 304. " Ibid. § 826 - 831.] PLEAS TO BILLS NOT OEIGINAL. 665 him.i Or, if the plaintiff is not entitled to revive the suit at all, although a title is stated in the bill, so that the defendant cannot demur, the objection to the plaintiff's title may also be taken by way of plea.2 Indeed, it seems to have been thought, that a defend- ant could only object to a bill of revivor, by way of plea or demur- rer.3 And there may be great convenience in thus making the objection ; for, if the defendant objects by answer merely, the point can only be determined by bringing the cause regularly to a hear- ing.* But if the objection is taken by plea or by demurrer, it may in general be immediately determined in a summary way.^ However, if a defendant objects by answer only, or does not object at all ; yet, if it appears to the court, that the plaintiff has no title to revive the suit against the defendant, he can take no benefit from it.® § 830. The want of proper parties may also be objected to a bill of revivor.'^ As, if a suit is by tenants in common, and one dies, the representative of the deceased tenant in common must make the surviving tenant in common a party to a revivor by him ; and if the objection does not sufficiently appear on the face of the bill to ground a demurrer, it may be taken advantage of by way of plea.^ If a bill of revivor is filed in a case, requiring a supple- mental bill, it seems, that the defendant may plead such supple- mental matter ; for although such a plea has been overruled in one case ; yet it was so only on account of a defect in form, the court admitting it to be clearly good in substance.^ But a defend- ant to a bill of revivor cannot plead to that bill a plea, which has been pleaded by the original defendant, and overruled.^o § 831. If a person, who is entitled to revive a suit, does not proceed in due time, he may be barred by the statute of limitations of actions, which may be pleaded to a bill of revivor afterwards filed." As, for example, if the bill in equity be for an account, or 1 Mitf. Eq. PI. by Jeremy, 289, 290. ' Ibid. ' Mitf. Eq. PI. by Jeremy, 289-294; Cooper, Eq. PI. 302, 303; Beames, PI, in Eq. 293-298; Id. 350, 351; Ante, § 617-627. 4 Ibid. ' Ibid. ° Ibid. ' Bettes V. Dana, 2 Sumner, R. 383. ' Cooper, Eq. PI. 302, 303 ; Beames, PI. in Eq. 296 ; Fallowes v. Williamson, n Ves. 306; Merrewether v. Mellish, 13 Ves. 435; Ante, § 358, 622. » Ibid. '" Ibid. " Mitf Eq. PI. by Jeremy, 272, 290 ; Cooper, Eq. PI. 302 ; Beames, PL m Eq. 293, 296 ; Holingshead's case, 1 P. Will. 742 ; S. C. cited 2 Sh. & Lefr. 632. 56* 666 EQUITY PLEADINGS. [CH. XVI. other personal demand, a plea, that the suit has not been revived within six years since the abatement by the death of the intestate, (who was the original plaintiif,) will be a good bar.^ But in such a case, the plea should set forth, that the six years have elapsed since the taking out of administration by the personal representa- tive, who seeks to revive the suit ; for the bar does not begin to run until an administration is taken but.^ § 832. (3.) As to pleas to cross bills. Cross bills are generally liable to all the pleas in bar, to which original bills are liable, as they differ in nothing from original bills, except that they are oc- casioned by former bills.^ And the converse of this is equally true, that a cross bill is not generally liable to any plea, which will not hold to an original bill.* Pleas to the jurisdiction, and to the person, cannot be pleaded to a cross bill, the defendant having, by filing his original bill, affirmed the sufficiency both of the person and of the jurisdiction.^ But if a cross bill should be filed by a plaintiff, who is hot capable of suing alone, as by an infant, a feme covert, an idiot, or a lunatic, it should seem that a plea to the per- son would be good.^ A defendant cannot, by a cross bill, compel the plaintiff in the original bill to discover the evidence of his (the defendant's) title ; and, therefore, it should seem, that the objection may be taken by plea ; and it may also be insisted on by answer.'^ § 833. (4.) As to pleas to bills of review, and bills in the na- ture of bills of review. It has been already mentioned, that a part of the constant defence to a bill of review, for error apparent on a decree, has been by a plea of the decree and a demurrer against opening the enrolment. But a demurrer seems to be the proper' defence only, where the decree is fairly stated ; and the books of practice give the form of a demurrer only to such a bill.^ Where ' Ibid. ; Holingshead's case, 1 P. Will. 742 ; Earl of Egremont v. Hamilton, 1 B. & Beatt. 531 ; Perry v. Jenkins, 1 Mylne & Craig, 118. ^ Perry v. Jenkins, 1 Mylne & Craig, 118; Murray v. East India Company, 5 Barn. & Aid. 204. ' Cooper, Eq. PI. 304 ; Mitf. Eq. PI. by Jeremy, 290, 291 ; Beames, PI. in Eq. 302, 303 ; Ante, § 628 - 634. * Ibid. ' Ibid. ' Ibid. ' Bellwood V. Wetherell, 3 Younge & Coll. 211 ; Glegg v. Legh, 1 Bligh, (N. S.) K. 302 ; Cherry v. Legh, Id. 306. « Ante, § 634 ; Mitf. Eq. PI. by Jeremy, 203, 291 ; Webb v. Pell, 3 Paige, K. 368. §831-834.] PLEAS TO BILLS NOT. ORIGINAL. 667 any matter beyond the decree, such as length of time, a purchase for a valuable consideration, or any other matter, is to be offered agamst the opening of the enrolment, that matter must be plead- ed.i If a demurrer to a bill of review has been allowed, and the order, allowing it, is enrolled, it is an effectual bar to a new bill of review on the same grounds, and may be pleaded accordingly .2 To a bill of review of a decree for payment of money, it has been objected by plea, that according to the rule of the court, the money decreed ought to have been first paid.s But the rule appears to have been dispensed with on security given ; and, as the bill of review would not stay process for compeUing payment of the money, it may be doubted, whether the objection can be properly so made.* § 834. A bill of review upon the discovery of new matter, seems liable to any plea, which would have avoided the effect of that matter, if charged, in the original bill.^ It has been doubted, whether the fact of the discovery of the new matter, thus alleged to support a bill of review, can be traversed by a plea, after the court, upon evidence of the fact, has given leave to bring the bill, even if the defendant could traverse the fact by the positive asser- tion of some fact, which would demonstrate, that the matter was within the knowledge of the party, so that he might have had the benefit of it in the original suit. But the doubt seems not well founded ; for, if the fact of the discovery is in issue in the cause, 1 Ante, § 634 ; Mitf. Eq. PI. by Jeremy, 203, 291 ; Webb v. PeU, 3 Paige, K. 368. ' Ibid. ' Ibid. * Mitf. Eq. PL by Jeremy, 291, 292; Cooper, Eq. PI. 304, 305; Beames, PI. in Eq. 304 - 307 ; Ante, § 634 - 640. Mr. Beames, in his PI. in Eq. 306, says : " The case of Hartwell v. Townsend, 2 Bro. Pari. R. 107, Tomlin's edit., con- tains an important distinction with respect to this subject, that though the plain- tiff in a bill of review is confined to errors upon the face of the record, and cannot go out of it ; yet the defendant is at liberty to allege every matter rele- vant to his defence, whether in or out of the record, by way of plea,.as a release, &c., to prevent disturbing the decree ; nor has he any other method of introduc- ing it. And when pleaded, the court is to judge, whether the matter aUeged is sufficient to preclude the plaintiff from the review he seeks. That case also decides, that whilst neither an assignee nor a devisee can have relief by a bill of review, all the parties to the original bill must be made parties to the bill of re- view, on that principle of justice, that a party is not to be condemned without being heard." ^ ^ Mitf. Eq. PL by Jeremy, 89, 292, 293 ; Cooper, Eq. PL 304, 305 ; Beames, PL in Eq. 307. 668 KQUITY PLEADINGS. [CH. XVI. it ought to be proved, to entitle the plaintiff to demand the judg- ment of the court on the matter alleged, as a ground for reviewing the decree ; and it may consequently be disproved by evidence on the part of the defendant.^ § 835. The other bills, in the nature of bills of review, seem to be in the same situation. Upon a supplemental bill, in nature of a bill of review of a decree not signed and enrolled, upon the al- leged discovery of new matter, it has been said, that if the defend- ant can show, that the allegation is false, he must do so by plea, and that it is too late to insist upon it by answer.^ But as the bill must allege the fact of discovery, and that fact must be the ground of the proceeding, it should seem, that it is equally liable to a traverse by answer, and by evidence, as any other fact stated in a bill.^ § 836. (5.) The proper defence to a bill, seeking to impeach a decree on the ground of fraud, is a plea of the- decree, denying the fraud, supported by an answer also, meeting the charges of fraud.* And where a decree, establishing a modus, was pleaded to a bill for tithes, in which bill, the plaintiff stated, that the defendants set up the decree as a bar to his claim ; and, in order to avoid the effect of the decree, charged, that it had been obtained by collu- sion ; and stated facts tending to show collusion ; the court was of opinion, that the defendants, not having, by averments in the plea, denied the collusion, although had they done so by an answer in support of the plea, the plea was bad in form ; and it was over- ruled accordingly.^ § 837. (6.) Any person, interested under a decree, may bring a bill to carry it into execution. Any creditor, upon the same principle, may prosecute a decree for an account.^ But if a plain- tiff, filing a bill to carry a decree into execution, happens to have no right or interest, and such fact is not so . apparent on the bill as to admit of a demurrer, the defendant may offer it by way of plea.'' ' Mitf. Eq. PI. by Jeremy, 89, 292, 293 ; Cooper, Eq. PI. 304, 305 ; Beames, PI. in Eq. 307. ' Mitf. Eq. PI. by Jeremy, 293 and note (g) ; Cooper, Eq. PI. 306 ; Beames, PI. in Eq. 304, 307 ; Lewellen v. Mackworth, 2 Atk. 40. ' Ibid. * Cooper, Eq. PI. 305 ; Mitf. Eq. PI. by Jeremy, 293 ; Beames, PI. in Eq. 214, 217, 307; Ante, § 639. « Ibid. « Cooper, Eq. PI. 305, 306 ; Mitf. Eq. PI. by Jeremy, 293 ; Beames, PI. in Eq. 307, 308 ; Ante, § 641. ' Ibid. §834 -838 a.] disclaimers. 669 CHAPTER XYII. OF DISCLAIMERS. [* § 838. Disclaimer, how distinguished from answer I Sq "J^jf"'^'' °°'y P^P" ^here bill alleges that defendant sets up a claim. § 839. Disclaimer may extend to portion of bill only. § 840. Disclaimer will not excuse answer. § 841. Disclaimer entered by mistake, how removed. § 842. Decree, without costs, ordinarily, in such cause. § 843. Party disclaiming, not always allowed costs. § 844. Difference in form of answer and disclaimer. § 838. A DISCLAIMER is, where the defendant renounces all claim to the subject of the demand made by the plaintiff's bill.i A dis- claimer is distinct in substance from an answer, although some- times confounded with it.^ But it can seldom be put in without an answer ; for, if the defendant has been made a party by mis- take, having had an interest, which he may have parted with, the plaintiff may require an answer sufficient to ascertain, whether that is the fact, or not ; and if, in truth it is so, an answer seems necessary to enable the plaintiff to make the proper party, instead of the defendant disclaiming.^ And although, perhaps, a mere witness may avoid answering by a disclaimer ; yet an agent, charged by a bill with personal fraud, cannot, by disclaiming any interest, avoid answering fully.* § 838 a. A party cannot get rid of his liability to answer a suit by a mere disclaimer, if his answer may properly, under all the circumstances, be required.^ Thus, for example, if his disclaimer does not show, that he is under no liability in respect to the mat- ters of the bill, it will be bad.^ So, if the bill alleges some other facts, as, that the defendant has mixed himself up with the whole transaction, and has by his personal conduct made it necessary ' Cooper, Eq. PI. 309 ; Mitf. Eq. PL by Jeremy, 318, 319 ; Hinde, Ch. Pr. 208. ' Ibid. ; Mounsay v. Burnham, 1 Hare, R. 15. » Ibid. ; Ellsworth v. Curtis, 10 Paige, R. 105. * Ibid.; Bulkley v. Dunbar, 1 Anst. K. 37. ' Glassington v. Thwaites, 2 Euss. K. 458 ; Whiting v. Eush, 2 Younge & Coll. 546, 552 ; Graham v. Coape, 9 Sim. E. 102 ; S. C. 3 Mylne & Craig, 638 ; Ells- worth V. Curtis, 10 Paige, E. 105 ; Post, § 840. • Ibid. 670 EQUITY PLEADINGS. [CH. XVIL that the bill should be filed, a mere disclaimer will not entitle him to be dismissed from further answering the suit ; for under such circumstances justice might not be done to the other party .^ Gen- erally speaking, therefore, a mere disclaimer is scarcely to be deemed sufficient or proper, except where the bill simply alleges, that the defendant claims an interest in the property in dispute, without more ; for, under such circumstances, if he claims no in- terest, that is a sufficient answer to the allegation.^ § 839. As a defendant may disclaim and answer ; so he may demur to one part of the bill, plead to another, answer to a third, and disclaim to a fourth ; but all these defences must clearly refer ' Graham v. Coape, 9 Sim. E. 102 ; S. C. 3 Mylne & Craig, 638. Lord Cot- tenham, in delivering his judgment in this case, said : " It is to be observed, that the appellants are not made defendants in respect of their having an interest, in which case a simple disclaimer would enable the plaintiflF to prosecute his suit, and give to him all the benefit he seeks. On the contrary, it alleges that they have no interest, but that, pretending to have some, they have prevented the plaintiff from obtaining the property from the trustees ; and, upon that ground, it prays, that the appellants, and the other defendants, who stand in the same situation, may pay the costs of the suit. The appellants were quite aware, that a simple disclaimer would not meet the case made against them ; and they have therefore put in an answer and disclaimer, not only disclaiming aU interest, but denying that they ever had or pretended to have any right, title, or interest in the property in question. But although they have found it necessary so to meet the case made by the bill, they have not answered any of the allegations by means of which the plaintiff proposes to prove the affirmative of his proposition, and so to support his title to compel them to pay the costs of the suit. Upon what ground can a defendant be entitled so to defeat the case alleged against him, by refusing to answer the allegations in the bill, and putting in a general denial of the equity asserted by the bill ? Glassington v. Thwaites, 2 Russ. R. 458, and other cases were cited upon the point ; but De Beauvoir v. Rhodes, not reported in that stage of it, more precisely meets this case. There the plaintiff filed his bill to set aside a building lease, and made the attorneys, who had been employed in the transaction by the person under whom he claimed, defendants to the bill, charging that they had been parties to the alleged fraud, and had secured to themselves a benefit by getting from the tenant a contract to employ them in preparing the sub-leases, and praying that they might pay the costs of the suit. Those defendants put in a disclaimer, which Sir John Leach, then vice- chancellor, ordered to be taken off the file, upon the ground that the plaintiff prayed relief against them, and that they could not escape by simply disclaiming. In that case, as in this, the defendants were made parties upon an alleged claim of interest, and upon a demand for costs arising from imputed misconduct. With respect to the former, the disclaimer might be sufficient, but to the latter it is wholly inapplicable." ' Ibid. §838a-841.J disclaimers. 6T1 t 'n^n n'f ^'1"''* ^^''' °^ '''' ^^1^-' ^'^ ^ demurrer will be overruled by a plea or by an answer to the same part of the bill, as IS demurred to.^ A plea also will be overruled by an an- swer under the same circumstances.3 The reason is, that a de- murrer demands the judgment of the court, whether the defend- ant shall make any plea or answer; and a plea, whether he shall make any other answer than what is contained in the plea- of course the party necessarily waives his objection, when he does the very tlung which he has by his demurrer or plea objected to do. And if a disclaimer and answer are inconsistent, the matter will be taken most strongly against the defendant upon the dis- claimer.^ § 840. A defendant cannot, by a disclaimer, deprive the plaintiff of the right of requiring a full answer from him, unless it is evi- dent, that the defendant ought not, after such disclaimer, to be retained as a party to the suit.s For a plaintiff may have a right to an answer, notwithstanding a disclaimer ; and in such a case the defendant cannot shelter liimself from answering, by alleging, that he has no interest.'^ Although he has no interest, others may have an interest in it against him. He may be deeply account- able ; and the very statement, that he is deeply accountable, may, in one sense, be an allegation, that he has an interest in the suit. A man cannot disclaim his liability.^ Under such circumstances, it may be necessary to revive a suit against the personal repre- sentatives of a deceased defendant, who has himself disclaimed, and against whom the plaintiff waives all relief.^ § 841. If a defendant puts in a disclaimer, and afterwards dis- covers, that he had an interest, which he was not apprized of at the time when he disclaimed, the court will, upon the ground of ignorance, or mistake, permit him to make his claim.'^" But the court will, in such a case, require the defendant to show a strong ground by affidavit, to get rid of the disclaimer upon .the record.^^ ' Cooper, Eq. PL 309, 310 ; Mitf. Eq. PI. by Jeremy, 319, 320 ; Ante, § 436, 437. 3 Ibid. ' Ibid. ; Ante, § 465. * Ibid. ' Ibid. ; Ante, § 465. • Glassington v. Thwaites, 2 Kuss. R. 458-462 ; Graham v. Coape, 6 Sim. K. 102 ; S. C. 3 Mylne & Craig, 638 ; Elkworth v. Curtis, 10 Paige, R. 105 ; Ante, § 838, 838 a. 7 Ibid. ' Ibid. ' Ibid. •» Cooper, Eq. PI. 310, 311. " Ibid. , 672 EQUITY PLEADINGS. [CH. XVH. § 842. If the defendant disclaims, and it appears that the bill was exhibited for vexation only, the court will dismiss the bill with costs against the plaintiff.^ But, if the plaintiif had probable cause or reason to exhibit his bill against such defendant, he may, if he pleases, pray a decree against such defendant, and all claim- ing under him, since the bill was exhibited ; and it is commonly granted without costs on either side.^ As the court will dismiss the bill with costs, when it appears to have been vexatiously filed ; so, if the defendant disclaims, the plaintiff must not file a replica- tion to such disclaimer. If he does, and serves the defendant with a subpoena to rejoin, the defendant may have costs against the plaintiff for such vexation.^ But it is otherwise, if the dis- claimer is only to a part of the bill, and there is an answer to the other part.* § 843. On the other hand, the court has sometimes refused costs to a defendant disclaiming. As, where a bill of foreclosure was filed against the mortgagor, who, by his answer, stated, that he had made a subsequent mortgage ; and the bill being amended by adding such mortgagee a party, he disclaimed, stating, that after the bill was filed, but before the amendment, he had made a second assignment ; the court refused costs to the defendant dis- claiming, and laid it down as a principle, that, in such a case, the subsequent mortgagee can have no costs.^ § 844. Although a disclaimer is in substance distinct from an answer, yet it generally adopts in most respects the formal parts of an answer, the words of course, preceding and concluding an answer, being used in a disclaimer.® But Lord Eedesdale has ob- ' Cooper, Eq. PI. 310, 311. ' Ibid. " Ibid. * Ibid. ; Mitf. Eq. El. by Jeremy, 319 ; Hinde, Ch. K. Pr. 208. ' Cooper, Eq. PL 311. ' Cooper, Eq. PI. 311 ; Mitf. Eq. PI. by Jeremy, 319; Hinde, Ch. Pr. 209. See Hare on Discov. 258, 259. The following form is given of a mere disclaimer, in Vanheythuysen's Equity Draftsman, p. 451. " The disclaimer of A. B., the defendant, to the bill of complaint of C. D., complainant. This defendant saving, &c., (here follow the words of course, which precede an answer,) saith, that he doth not know, that he, this defendant, to his knowledge and belief, ever had, nor did he claim, or pretend to have, nor doth he now claim, any right, title, or interest of, in, or to the estates and premises, situate, &c., in the said complainant's bill set forth, or any part thereof; and this defendant doth disclaim all right, title, and interest to the said estate and premises in, &c., in the said complainant's bill, mentioned, and every part thereof (Here follow the words of course, which con- clude an answer.") See also in 2 Grant, Ch. Pr. 480, 481, the form of an answer and disclaimer. §842-844.] ANSWERS. 673 served, that the form of a disclaimer alone seems to be simply an assertion, that the defendant disclaims all right and title to the matter in demand ; and that the forms given in the books of prac- tice are all of an answer and disclaimer.^ CHAPTER XVIII. ANSWERS. [* § 845. When the defendant must answer bill. § 846. Defendant must answer fully. May excuse discovery. § 846 a. Defendant may excuse answer by entire ignorance. § 846 6. Recent case illustrating the rule of answering fully. § 846 c. Cannot raise question of plaintiff's capacity to sue, on demurrer to part of bill. § 847. Defendant cannot avail himself of all defences by answer. § 847 a. English rule of pleading, ore tenus, at hearing. § 848. Each defendant may answer separately. § 849. The nature of an answer. § 849 a. Answer responsive to bill, evidence for defendant. § 850. Answer is both a defence and a discovery. 4 851. How answer is most effective defence. § 852. Must be full and specific. 4 852 a. Defendant must answer bill, where he denies right. § 852 6. But in some cases need not answer matters wholly independent of title, if that denied. § 853. Material interrogatories must be answered. § 853 a. Illustration of materiality of averments in bill. § 853 6. Cannot pry into immaterial matters of mere private concern. 4 853 c. Defendant need only answer what materially affects him. § 854. Must answer according to knowledge, information, &c. 5 855. Must be positive, and not by way of negative pregnant. § 855 a. Cannot excuse himself as to matters done by agent. § 855 6. What form requisite to make allegation material. § 856. Defendant is bound to state substance of account. 5 857. If defendant volunteers to state part of a conversation, he must state the whole. § 858. Not obliged to disclose evidence in regard to his own case. 5 858 a. Cannot object to set out accounts, by schedule. § 859. Documents not required to be produced by defendant, unless they have ref- erence to plaintiff's case, or made part of answer. 4 859 a The present rule requires that they concern plamtiff s case. « 860. Court exercise discretion as to production of paper referred to m answer. 5 860 a. In setting out writing it should be referred to as part of answer. § 861 . Objections to answer enumerated. 4 862. Matters of scandal struck out of answer. 1 See last preceding note. EQ. PL. 5^ 674 EQUITY PLEADINGS. [CH. XVni. § S63. Impertinent matters will be expunged. . 5 864. Exceptions for insufficiency of answer. § 865. Manner of disposing of exceptions to answer. 5 866. Procedure, when demurrer, plea, and answer, one or all. § 867. Reference of answer for scandal, impertinence, or insufficiency. § 868. Further answer ; answer to amended bill, &c. § 868 a. Answers to bills not original. § 868 b. Exception on ground defendant does not state belief. § 869. Form of drawing up an answer. § 870. Statement of the parts of answer in detail. § 871. Infants and persons of unsound mind answer by guardian. ^ 872. Form of answer derived from civil law. § 873. How feme covert should answer. § 874. Mode of verifying by oath. § 875. Answer must be signed by defendant. ^ 875 a. The effect of an answer not sworn to. 4 875 b. Effect of unsworn answer in injunction bills, &c. § 875 c. Comments upon the weight of an answer under different circumstances. § 876. Answer must be signed by counsel, unless taken by commissioner.] § 845. If the defendant does not demur or plead, he must an- swer to the bill.^ The time, when he is to answer, is a matter fixed by the general regulations or practice of the particular court. But it is a general rule, that the defendant is not bound to answer to a cross bill, until the other party has put in his an- swer to the original bill.^ It has been already mentioned, that every plaintiff is entitled to a discovery from the defendant of the matters charged in the bill, provided they are necessary or proper to ascertain facts, material to the merits of his (the plain- tiff's) case, and to enable him to obtain a decree.^ The plaintiff may require this discovery, either because he cannot prove the facts, or in aid of proof, and to avoid expense.* He is also enti- tled to a discovery of the matters necessary to substantiate the 1 Com. Dig. Chancery, K. 1. 2 Long V. Burton, 2 Atk. 218. " Mitf. Eq. PI. by Jeremy, 9, 301, 307; Ante, § 572. The concluding part of every bill requires this discovery. It is as follows : " To the end, therefore, that the said, (the defendants,) and their confederates, when discovered, may, upon their several and respective oaths, according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, a full, true, direct, and perfect answer make to all and singular the premises, as fully and particularly as if the same were here repeated, and they interrogated thereto, and more especially whether," &c. &e. See 2 Grant, Ch. Pr. 369, edit. 1826. ' * Ante, § 319, and note, 324 ; Mitf. Eq. PI. by Jeremy, 307 ; March v. Davi- son, 9 Paige, K. 580 ; Brereton v. Gamul, 2 Atk. 241 ; Finch v. Finch, 2 Ves. 492 ; Earl of Glengall v. Frazer, 2 Hare, K. 99, 105. § 845, 846.] ANSWERS. 675 proceedings, and to make them regular and effectual in a court of equity.^ § 846. When, therefore, a defendant is called upon by a bill to make a discovery of the several charges contained in the bill, he must do so by a general answer to those charges, unless he can protect himself from it either -by a demurrer, or by a plea, or by a disclaimer.2 For, if a defendant is compelled to answer, he must in general answer fully to all the charges of the bill not so covered by a demurrer, or a plea, or a disclaimer.^ But when ' Mitf. Eq. PI. by Jeremy, 307. ' Cooper, Eq. PL 312 ; Post, § 846, 847. » Cooper, Eq. PL 312; Ante, § 606 ; Mitf. Eq. PL by Jeremy, 307, note (h), 316, note (q); Hare on Discov. 247-262 ; Wigram on Points of Disoov. 85-122, 190, 192-195, 347, 348, 1st edit. The rule, that if a defendant answers, he must answer fully, is a rule that exists in the court of Chancery only in Eng- land ; and it does not extend to cases in the Exchequer. Mr. Hare has given the reasons of this difference at large, in his work on Discovery, pp. 298 - 301. " The rule in chancery," says he, " that a defendant, who submits to answer, must answer fully, does not apply generally in the court of Exchequer. The inconvenience and inconsistency which have been adverted to, as the conse- quences of the temporary innovation upon the ancient practice of the former court, do not occur in the latter ; for, in the Exchequer, the exceptions for insufficiency are argued before the court in the first instance. There seems, however, to be some want of uniformity in the principle, upon which the suffi- ciency of answers has been determined. The statement of the present rule in the Exchequer will be much assisted, by referring to that, which was adopted in the court of Chancery during the suspension of the usual practice there. It is to be observed, that the distinction in the two courts of equity, is a distinction of form, and not of substance. The principle expressed by Sir J. Leach, vice- chancellor, is universally applicable to the jurisdiction : ' A defendant^ cannot by answer deny the plaintiff's title, and refuse to answer as to facts, which may be useful evidence in support of that title.' And the same may, with equal truth, be said of a plea. The cases, in which the difference of practice chiefly prevails, are, where the defendant denies the title, which the plaintiff alleges, and upon that denial resists the discovery of matters, which are merely a con- sequence of the alleged title. It was held by Lord Chief Baron Parker, that where the bill sought an account or discovery of assets, if the fact, upon which the plaintiff founded his title, were denied, and if it were a fact, lymg m the knowledge of the defendant, the plaintiff was not entitled to a discovery of assets But if the fact did not lie in his knowledge, though he denied it, yet he should set out an account. This decision imports, that a defendant cannot pro- tect himself from setting forth an account, unless he possesses a personal knowl- edge of the facts insisted upon as a foundation of the title. But the distinction does not appear to have been taken in subsequent cases. It seems to ha^e been considered in a recent judgment, that the defence to discovery by way of answer 676 KQUITY PLEADINGS. [CH. XVIII. we say, answer fully, the language must be understood with this qualification, that he must answer fully to all matters in the bill, which are well pleaded ; that is, to all the facts stated and charged. To matters of law, or inferences of law, drawn from the facts, he need not answer.^ There are some exceptions to this rule ; but they are few. (1.) He is not bound to answer to matters which are purely scandalous, or impertinent, or immaterial, or irrelevant.'^ is more particularly adapted to the case of objections, which do not extend to the entire bill. It was said by Graham, Baron, that ' there is often great inconven- ience in a plea ; and a defendant ought not to be unnecessarily driven to plead in a case of this nature. In the cases cited, there must have been some grave point of equity raised, and to be determined, which, it was supposed, if established, would operate as a bar to the suit; and, in such a case, a plea may be very proper and needful, in order to bring the question distinctly before the court.' 'In a late case, we held, that there was no necessity for splitting the record by insisting on a plea, where a party could sufficiently protect himself by answer from answering certain parts of the bill. That is a sufficient reason for holding, that he might do so in this court, without being driven to put his objections on the record by plea, where they do not go to the entire suit. Where, indeed, the ob- jection would aflFect the whole merits, it may be very proper to compel the party to put the case upon that single issue by means of a plea.' And Lord Chief Baron Alexander observed : ' We must take, what appears to us to be the most conven- ient course under the circumstances, in every case. There are, undoubtedly, many occasions, on which a defendant must plead his defence, in order to give it the operation of a bar to the whole bill ; as in the instance of a partnership. But that is not applicable to such a defence as this, where the matter insisted on only goes to a small part of the bill. I must say, that I consider the exception should be disallowed.'" See also the cases in 11 Ves. 305; 2 Sim. & Stu. 275; and Capon V. Mills, 13 Price, R. 770 ; and other cases cited by Mr. Hare, in support of his text. See also Gresley on Evidence, 17, 18; Cooper, Eq. PI. 315, 316; Wigram on Points of Discov. 192-198, 1st edit. ; Id. 190 - 199, 2d edit. ; Bank of Utica V. Messereau, 7 Paige, R. 517. The rule is now qualified by the English Orders in Chancery of 1841, (1 Phill. & Craig, 379,) Order 38, which provides: " That a defendant shall be at liberty by answer to decline answering any inter- rogatory, or part of an interrogatory, from answering which he might have pro- tected himself by demurrer ; and that he shall be at liberty so to decline, notwith- standing he shall answer other parts of the bill from which he might have protected himself by demurrer." The 44th of the Equity Rules of the Supreme Court of the United States adopts in terms the English Order, and Rule 39 proceeds fui'ther, as may be seen in Post, § 847, note. • 2 Daniell, Ch. Pr. 256. « Ante, § 266-270, 566, 820; Mitf Eq. PI. by Jeremy, 307, note Qi), 316, note (y) ; Gresley on Evidence, 17, 18 ; Report of Chancery Commissioners, 9th March, 1826; Wigram on Points of Discov. 195-198, 1st edit.; Id. 190-199, 2d edit. ; Davis v. Collier, 13 Geo. 485 ; Agar v. The Regent's Canal Company, Cooper, Eq. R. 212. In this case. Sir Thomas Plumer, (the vice-chancellor,) ^ ^'^^•] ANSWERS. gY^- (2.) He is not bound to answer to anything, which may subject him to any penalty, forfeiture, or punishment.^ (3.) He is not after stating the general nature of the bill and answer, observed, that " The ques- ^on brought on by the exceptions to the report, was reduced to two heads ; fir", whether If po.nts excepted to are irrelevant and immaterial to the points in ques- rr ^ '?'';. '^'''" ■' ^"'"Pe'^"' to «o°sider the materiality or not: or whether he should see only whether it is answered or not.- As to this it is con- tended, that If the defendant does not protect himself by plea or demurrer from discovery, he cannot by answer, object, that questions are not material, unless he has referred the bill for impertinence, which is a course that may be taken where immateriality is objected to the bill. The question, whether the master, upon exceptions for insufficiency, can consider materiality or immateriality, is of great importance, because of daily occurrence. It is therefore of consequence, that the rule should be understood, in order that the masters may proceed accordingly Upon the argument of this case, I inquired, if there was any direct authority upon this question, whether a defendant could protect himself from discovery on the ground of immateriality, and was furnished with only one case upon it, Selby v. Selby. Lord Commissioner Eyre, in that case, seems to have thought the prac- tice was different in this respect between the court of Exchequer and the court of Chancery. I have looked into the register's book in order to see what became of the exceptions in that case ; it appears that there were six exceptions, certainly all minute, but which tended, however, to investigate the title ; and that all the exceptions were allowed. The party not having protected himself from discov- erj' of his pedigree by plea or demurrer, was obliged to make the discovery. In Sweet V. Younge, and Jacobs v. Goodman, and other cases, the defendant was permitted by answer to resist the discovery. But in no case the question has arisen, whether, if the question was wholly immaterial, the defendant can by an- swer object to the discovery, the above cases being, where there was a denial of title. By analogy, indeed, it may be argued, that the objection should be taken advantage of by demurrer, like any other defect ; and Lord Redesdale gives as one head of demurrer, that the discovery is not material ; but the direct question upon an answer does not appear to have arisen in any of the printed cases. In the absence of authority, I considered it important to consult the masters for infor- mation as to their usual course of practice in this respect, and I have therefore inquired of them ; and they have all, without one exception, stated their uniform practice to be, that if the questions are quite immaterial, they disallow the excep-. tions ; but if the discovery can in any way assist the plaintiff, they allow the exception. In addition to the authority of the gentlemen filling these ofiices, and who are all of great character and experience, though it is stated in Lord Eedes- ' Ante, § 521 - 525, 575 - 594, 825 ; Mitf. Eq. PI. by Jeremy, 307 ; Cooper, Eq. PI. 312; Hare on Discov. 264-266, 279, 280; Agar v. Regent's Canal Company, Cooper, R. 212, 215 ; Wigram on Points of Discov. 196, 1st edit. ; Id. 191 - 194, 2d edit. ; Adams v. Porter, 1 Cush. 171. If the defendant means to rely on this objection, he should specially set it up as a ground for refusing the particular discovery in his answer. Sloman v. Kelly, 3 Younge & Coll. 673 ; Ante, § 607, note. 57* 678 EQUITY PLEADINGS. [CH. XVIH. bound to answer, what would involve a breach of professional con- fidence.^ (4.) He is not bound to discover the facts respecting his own title ; but merely those which respect the title of the plaintiff.^ In each of these cases, if the defendant does not think proper to defend himself from a discovery by a demurrer, or by a plea, he has been permitted by answer to insist, that he is not obliged to make the discovery. In each of these cases, the plain- tiff may except to the defendant's answer as insufficient ; and upon that exception, it will be determined by the court, whether the defendant is, or is not, obliged to make the discovery.^ dale's book, that ' a plaintiff is entitled to a discovery of the matters charged in the bill, provided they are necessary to ascertain facts material to the merits of his case, and to enable him to obtain a decree ' ; yet I have further thought it my duty to communicate with that learned lord himself, who expressed to me, that he had not the least doubt, that the constant uniform practice of the court of Chan- cery, in all his time, concurred with that of the court of Exchequer, and with the opinion of the masters. It may also not be amiss to notice the introduction to every answer, which expresses the answer to be to so much as is material for the defendants to answer. A trustee or incumbrancer interested only in part, or heir at law, always answers to so much of the bill as applies to him, and need not an- swer the rest of it. In the case of a bill requiring an admission of assets, or that the defendant may set out an account, if the defendant admits assets, he is not obliged to set out the account. What would be the consequence of driving every pleader to demur ? It would be impossible with the greatest skill to do so. In a case like the present, there must be forty-nine demurfers, or one demurrer to forty-nine questions, where, if the defendant answers to anything, he overrules the demurrer ; and the material and immaterial parts of a bill, if artfully con- structed, are so mixed up as to make it almost impossible to separate and analyze what may be demurred to from what may not. Although therefore I have always been excessively cautious and attentive upon the subject of the practice of this court, lest I should be biased in the long experience I had in another court of equity, where they are constantly deciding on immateriality against exceptions, and where such decisions, from the injunction which follows, are frequently of the greatest value and importance, and as to which practice there I never remember a doubt being entertained during the period of between twenty and thirty years which I practised there ; yet I am clearly of opinion, that the practice of the court of Chancery in this respect is the same. No inconvenience has been known to arise from it, or it would have beeif corrected by appeal ; and I wish, therefore, as far as lies in my power, to put the practice out of all doubt." 1 Ante, § 599-602, 632 ; Strafford v. Hogan, 2 Ball & Beatt. 164 ; Hare on Discov. 266-268; Greenough v. Gaskell, 1 Mylne & Keen, 99; Wigram on Points of Discov. 195, 196, 1st edit. ; Id. 191-194, 2d edit. ; Jones v. Pugh, 12 Simons, R. 470. ' Ante, § 572, 825 ; Hare on Discov. 268-273 ; Wigram on Points of Discov. 21,. 22, 111, 113, 147-149, 195, 196, 1st edit. ; Id. 261-346, 2d edit. ' Mitf. Eq. PI. by Jeremy, 307, 308. § 846 - 847.] ANSWERS. 679 § 846 a. The rule, that the defendant must answer the whole of the statements and charges contained in the bill, and all the interrogatories founded upon them, appears to admit of further exceptions in cases, where the defendant, who is a trustee, or in the nature of one, states, upon his answer generally, that he is a stranger to several matters and things in the bill mentioned, and that he cannot set forth any further or other answer thereto, either as to his knowledge, belief, or otherwise. In such a case, it seems, that where it appears clearly, that no benefit would result to the plaintiff from requiring an answer to each fact and interrogatory, the answer will be considered sufficient. Thus, where a bill was filed against the assignee of a bankrupt for an account and injunc- tion to restrain proceedings at law, and one of the defendants put in an answer, stating that his name had been used in the action at law without his knowledge or authority, and that he had not acted as assignee except in some trifling particulars not connected with the subject of the bill, and was wholly ignorant of the matters in the bill set forth, the court overruled the exceptions, which had been taken to the answer, on the ground, that the defendant had not answered each interrogatory.^ [* § 846 b. There seems to be no exception to the rule, that a defendant who consents to answer the bill must do so fully, unless where the party demurs to a portion of it, for special reasons, or pleads. Thus where the bill charged the defendant both in the capacity of su^-viving partner, and of executor de son tort, he can- not refuse to answer in one capacity, on the ground that the plain- tifi" is not entitled to claim such answer, but must answer fully, in both capacities ; and by submitting to answer he renders himself liable not only as to the accounts of the estate, so received by him, but also as to the partnership dealings.^ § 846 c. And accordingly when the defendant put in an answer to part of the bill, it was held that he had thereby admit- ted the plaintiff's capacity to sue, and that he could not by de- murrer to the part of the bill not answered, raise the issue of the plaintiff's capacity to sue.^] § 847. In most, if not in all other cases, the rule apphes, that, ' Jones V. Wiggins, 2 Younge & Jerv. 385. See also Olding v. Glass, 1 Younge & Jerv. 340 ; 2 Daniell, Ch. Pr. 255. [« » Leigh V. Birch, 9 Jur. N. S. 1265.] ' Gilbert v. Lewis, 9 Jur. N. S. 187.] 680 EQUITY PLEADINGS. [CH. XVTII. if the defendant answers at all, he must answer fully .^ Indeed, it may be laid down as a general rule, subject to the exceptions ' Ante, § 606, 609, 846 ; Cartwrlght v. Hateley, 1 Ves. jr. 292; Bank of Utica V. Messereau, 7 Paige, K. 517, 520; Hare on Disoov. 247-262; 2 JDaniell, Ch. Pr. 246 - 249. The Supreme Court of the United States by the Equity Rules promulgated at the January Term, 1844, have materially altered the general doc- trine. The 39th Rule provides, that " 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 defendant shall be entitled in all cases by answer to insist upon all mat- ters of defence (not being matters of abatement, or to the character of the par- ties, 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 ; aiid in such answer he shall not be compellable to answer any other matters, than he would be compellable to an- swer and discover upon filing a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or de- fence. Thus, for example, a bond fide purchaser for a valuable consideration, ■without notice, may set up that defence 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 sup- port of such plea." Rules 40, 41, 42, 43, and 44, declare : " A defendant shall not be bound to answer any statement or charge in the bill, unless specially and particularly 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 interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent." " The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and numb^ed consecutively, 1, 2, 3, &o. ; and the interrogatories, which each defendant is required to answer, shall be specified in a note at the foot of the bill, in the form or to the effect fol- lowing ; that is to say : ' The defendant (A. B.) is required to answer the inter- rogatories' numbered respectively, 1, 2, 3,' &c. ; 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 defendant shall require to be furnished with a copy of the whole bill." " The note at the foot of the bill, speci- fying the interrogatories 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 alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment of the bill." " 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 defend- ants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and accord- ing to the best and utmost of their several and respective knowledge, remem- brance, information, and belief, full, true, direct, and perfect answer make to such ^ ^^'^■J ■ ANSWERS. Qgl above Stated, that the defendant cannot, by , answering, excuse himself from making a full answer of discovery.i And, there- of the several interrogatories hereinafter numbered and set forth, as by the note metL 7 rw^^'" '•^^P-^'-l^ -quired to answer; thJt is i say: 1. Whether, &c. 2. Whether, &c.'"-^' A defendant shall be at liberty, by answer, to decline answering any interrogatory or part of an interrogatory, from answer- ing which he might have protected himself by demurrer ; and he shall be at Ub- erty so to deobne, notwithstanding he shall answer other parts of the bill, from which he might have protected himself by demurrer." All these Rules, except Kule 39 are borrowed from late English Eules adopted in Chancery upon the same subject. See Orders in Chancery, 1841, Orders 16 - 19, 1 PhilL & Craig 371 - 373. See Ante, § 606, 609, 610 ; 1 Howard, R. Introd. 53 ; 17 Peters, R. App'x, 67. ' Hare on" Discov. 255, 256 ; 2 Daniell, Ch. Pr. 248, 249 ; Bank of Utica v. Messereau, 7 Paige, R. 517. In this last case, Mr. Chancellor Walworth said (p. 518) : "It is a general rule of pleading in this court, that if the defendant attempts to make his defence by answer, instead of pleading or demurring to the bill, he must answer fully ; that is, he must answer the whole of the statements and charges contained in the bill, and all the interrogatories legitimately founded upon them, so far as they are necessary to enable the complainant to have a com- plete decree against him. This was the aiicient course of proceeding in this court, as recognized by Lord Macclesfield, in Stephens v. Stephens, and fol- lowed by the decisions of Lord King, in Edwards v. Freeman, and in Richard- son V. Mitchell, Sel. Cas. in Ch. 51. And it proceeds upon the principle, that the complainant is entitled to a fuU discovery of all facts alleged in the bill, which may be important to the complainant in the suit, in case he should suc- ceed in showing, that the particular defence attempted to be set up in the an- swer is false or unfounded. If the defendant. pleads or demurs to the bill, the complainant is not deprived of any part of his discovery if the defence intended to be insisted on is unfounded in law or untrue in point of fact. For, if the plea or demurrer is disallowed, the defendant may still be compelled to put in his answer and make the discovery sought by the bill ; and if the plea is over- ruled as false, at the hearing, the complainant will be entitled to a decree accord- ing to the case made by his bill ; and the defendant, if necessary, may be exam- ined on interrogatories. But where the defendant puts in an answer denying some particular allegation, which is necessary to the complainant's title to relief, and puts every other allegation in the hill in issue by a general traverse in the usual form, it is evident, that the complainant at the hearing will be required to prove many things, as to which he was entitled to a discovery, if the particular defence set up in the answer should turn out to be false and unfounded. It is not a little surprising, therefore, that the ancient rule of pleading should ever have been departed from in the court of Chancery in England, except in those cases, where the discovery sought was of such a nature, that the defendant could not, under any circumstances, be required to make it ; as where it would be a breach of professional confidence, or would criminate himself, or subject him to a penalty of forfeiture. Shortly after the American Revolution, however, the ancient rule on this subject was attempted to be changed in the EngHsh court 682 EQUITY PLEADINGS. [CH. XVIII. fore, it is very far from being generally true, as is sometimes al- leged in the books, that a defendant may, by answer, avail him- self of, and insist upon every ground of defence, which he could use by way of demurrer, or of plea, to the bill.^ Thus, for ex- of Chancery ; or rather exceptions were introduced from time to time, which, if continued, would in the end have left but very little difference in substance be- tween an answer and a plea. When Lord Eldon afterwards held the great seal, he became dissatisfied with the new practice, of permitting a defendant, by his answer, to refuse to give a full answer; though I am not aware, that his lordship repudiated it by any direct decision. The cases of Kowe v. Teed, 15 Ves. K. 372, and Somerville v. Mackay, 16 Ves. R. 382, show, however, that he was pre- pared to do so, whenever a case should come before him, presenting that point directly for his decision. And Sir John Leach, one of the best .equity judges who has occupied a seat upon the bench of the English court of Chancery since the time of Lord Hardwicke, soon after, in the case of Mazarredo v. MaitlanJ, 3 Madd. R. 70, declared in favor of the ancient rule on this subject ; saying, in terms, that he thought it so useful a rule, that he should always adhere to it. Since which time, the ancient rule of pleading appears to have been, followed in England."' Mr. Daniell says : " It is to be observed, that this rule is applicable to all cases, where the defence intended to be set up by the defendant, extends to the entire subject of the suit ; such, for instance, as that the plaintiff has no right to equitable relief, — or that he has no interest in the subject, — or that the defendant himself has no interest in the subject, — or that he is a pur- chaser for a valuable consideration, — that the bill does not declare a purpose, for which equity will assume a jurisdiction to compel a discovery, — or that the plaintiff is under some personal disability, by which he is incapacitated to sue ; in all these cases, a defendant, who does not avail himself of the objection to answering, either by demurrer or plea, but submits to answer the bill, must answer it fully (Hare on Discov. 256) ; unless he comes within any of the cases, which have been before pointed out, as affording a special grdund for objecting to the discovery sought, either because the discovery may subject him to pains and penalties, or to a forfeiture, or to something in the nature of a forfeiture ; or because it is immaterial to the relief prayed ; or because it may lead to a dis- closure of matters, which are the subject of professional confidence, or of the de- fendant's own title, in cases where there is not a sufficient privity between him and the plaintiff to warrant the latter in requiring a disclosure of it. The prin- ciple, upon which the court proceeds, in exempting a defendant from a discovery under any of the above circumstances, has been fully discussed in considering the grounds, upon which a defendant, although he does not object to the relief, provided the plaintiff makes out a case, which may entitle him to it, may demur to the discovery sought. It is only necessary, therefore, to repeat in this place, what has been before stated, that if a defendant objects to a particular discovery upon any of the grounds above stated, he may, where the grounds upon which he may object appear upon the bill, decline making such discovery by submis- sion in his answer." 2 Daniell, Ch. Pr. 248, 249 ; S. P. Hare on Discov. 255, 256. 1 Cooper, Eq. PI. 312; Ante, § 439, 606,, 607, note, 647, 846 and note ; Mitf. ^ ^^'^■^ ANSWERS. gg3 ample, it is now settled, that a defendant cannot by answer set up as a defence to a bill for discovery and relief, that he is a lonl Eq. PI. by Jeremy, 209; '„. Harrison, 4 Madd. R. 252. The question whether a party can, by a disclaimer by answer, and insisting that he haJno' t.tle avo,d a full answer, has given rise to some diversity of opfnion. See Mitf Eq. PI. by Jeremy 283 ; Id. 188 ; Hare on Discov. 256-259 ; Lte, § 838 878 a! I was also formerly thought that the defendant might avail himself by L.e", of the protection of bemg a bonafde purchaser for a valuable consideraiion with- TTZ\fV *S' u t""' '' """^ overturned. Portarlington .. Soulby, 7 Sim. R 28 , Mitf. Eq. PI. by Jeremy, 307, note (h) ; Id. 188, 283 ; Ante, § 603, 810 There are, however, some cases which appear to interfere with the general rule stated m the text. Lord Redesdale has commented on them in the following passage : " Although the defendant, by his answer denies the title of the plaintiff yet m many cases he must make a discovery prayed by the bill, although not material to the plaintiff's title, and although the plaintiff, if he has no title, can have no benefit from the discovery. As if a bill is filed for tithes, praying a dis- covery of the quantity of land in the defendant's possession, and of the value of the tithes, although the defendant insists upon a modus, or upon an exemption from payment of tithes, or absolutely denies the plaintiff's title ; he must yet an- swer to the quantity of land and value of the tithes. Or, if a bill is filed against an executor by a creditor of the testator, the executor must admit assets, or set forth on account, although he denies the debt. But, where the defendant sets up a title in himself, apparently good, and which the plaintiff must remove to found his own title, the defendant is not generally compelled to make any dis- covery, not material to the trial of the question of title. Thus, where a testator devised his real estate to his nephew for life, with remainder to his first and other sons in tail, with reversion to his right heirs, and made his nephew execu- tor and residuary legatee of his will ; and on the death of the nephew, his son entered as tenant in tail under the will ; upon a bill filed by the heir at law of the testator, insisting that the son was illegitimate, that the limitations in the will were therefore spent, and the plaintiff became entitled, as heir to the real estate, and praying an account of the personal estate, and application in dis- charge of debts and incumbrances on the real estate ; the defendants, against whom the account was sought, insisted on the title of the son, as tenant in tail under the will, and that they were not bound to discover the personal estate, until the plaintiff had established his title. Exceptions having been taken to the answer, and allowed by the master, on exception to his report, the excep- tions to the answer were overruled ; the court distinguished this case, which showed a prima facie title in the defendant, the son of the nephew, from a mere denial of the plaintiff's title. So, when a bill claimed the tithe of rabbits on alleged custom, and the defendant denied the custom, it was determined, that the defendant was not bound to set forth an account of the rabbits, alleged to be tithable. And a like determination was made upon a claim of wharfage against common n;rht, the title not having been established at law. But where a dis- covery is in any degree connected with the title, it should seem, that a defend- ant cannot protect himself by answer from making the discovery. And in the case of an account required, wholly independent of the title, the court has 684 EQUITY PLEADINGS. [CH. XVIII. fide purchaser for a valuable consideration without notice ; but if he means to insist upon it, he must do it by way of plea ; because, if he answers at all, he must answer fully .^ On the other hand, it is equally clear, that the statute of limitations and lapse of time may be relied upon as a defence by answer, as well as by plea and demurrer.^ [* § 847 a. And, by the present English practice, where the de- fendants had, by affidavit, raised questions of lapse of time and acquiescence as a bar to a suit against them, but had not an- swered or pleaded to the bill, they were allowed to plead the statute of limitations, ore tenus, at the bar.^ But this indulgence, we apprehend, only extends to particular classes of suitors, who are exempted from answering the bill, iipon special grounds.] § 848. We shall now proceed to the consideration of the nature and form of an answer, premising, however, that, where there are several defendants, each is entitled, if he chooses, (subject to an ultimate question, as to costs, if the proceeding is oppressive,) to put in a separate answer, although they have a common defence. But, under the latter circumstances, it is most common for them to put in- a joint answer.* It may also be here added, that a de- declined laying down any general rule ; deciding, ordinarily, upon the circum- stances of the particular case. Thus, to a bill stating a partnership, and seek- ing an account of transactions of the alleged partnership, the defendant by his answer denied the partnership, and declined setting forth the account required, insisting, that the plaintiff was only his servant ; and the court, conceiving the account sought not to be material to the title, overruled exceptions to the answer for not setting forth the account. And, where a plea has been ordered to stand for an answer, with liberty to except to it, as an insufficient answer, the court has sometimes limited the power of excepting, so as to protect the defendant from setting forth accounts, not material to the plaintiff's title, where that title has been very doubtful." Mitf. Eq. PI. by Jeremy, 310-313. See Hare on Discov. 247 - 255 ; Id. 256 - 260, 298 - 300. See also Cooper, Eq. PI. 315, 316 ; Ante, § 681 a. ' Portarlington v. Soulby, 7 Sim. K. 28 ; Ovey v. Leighton, 2 Sim. & Stu. 234 ; Gordon v. Shaw, 14 Simons, K. 393 ; Ante, § 603, 810. But see Ante, § 846, 847, where the present countervailing Rule of the Supreme Court is stated; Post, § 851. 2 Ante, § 503, 751 ; 2 Story on Eq. Jurisp. § 1520, 1521. See also Cholmon- deley v. Clinton, 2 Jac. & Walk. 1, 138 - 152 ; Elmendorf v. Taylor, 10 Wheat. K. 168 ; Piatt v. Vattier, 9 Peters, K. 405, 416,417; Bpone v. Chirles, 10 Peters, K. 177. [* = Snead v. Green, 5 Law T. N. S. 301.] * Van. Sandau v. Moore, 1 Euss. E. 441 ; S. C. 2 Sim. & Stu. 509 ; Davis v. §847-850.] ANSWERS. 685 fendant need not generally answer to any part of the charges of a bill, except wlmt apply to, or concern himself.i j 849. 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 with- out stating additional facts, submits the questions, arising upon the case thus made, to the judgment of the court.^ If an answer admits the facts stated in the bill, or such as are material to the plaintiff's case, and states no new facts, or such only as the plain- tiff is willing to admit, no further pleading is necessary. The an- swer is considered as true ; and the court will decide upon it.^ But, if the answer does not admit all the facts in the bill, material to the plaintiff's case, or states any fact, which the plaintiff is not disposed to admit, the truth of the answer, or of any part of it, may be denied ; and. the sufficiency of the bill to grouhd the plain- tiff's title to the relief, which he prays, may be asserted by a repli- cation, which in this case, also concludes the pleadings according to the present practice of the court.* § 849 a. An answer, which contains facts, which are not re- sponsive to any allegations or interrogatories in the bill, is not evidence for the defendant ; but the facts must be established by him, if material, by independent proof. It is otherwise, where the answer is responsive to the bill ; for in such a case it is evi- dence for the defendant, and the plaintiff must overcome it by the counter evidence of two witnesses, or of one witness, and strong circumstances in corroboration, otherwise it will prevail.^ § 850. An answer in cases, where relief is sought, properly con- Davidson, 4 McLean, 136. [In what cases it is proper for several defendants, who appear by the same solicitor, to put in separate answers, see Pentz v. Haw- ley, 2 Barb. Ch. R. 552.] 1 Mitf. Eq. PI. by Jeremy, 358 note {d) ; Cooper, Eq. PI. 315 ; Newman v. Godfrey, 2 Bro. Ch. R. 332 ; Gresley on Evid. 17, 18 ; Hare on Discov. 160- 162. « Mitf. Eq. PI. by Jeremy, 15, 16. ' Ibid. ' Ibid. " 2 Story on Eq. Jurisp. § 1528, 1529, and cases there cited; Bank of United States V. Beverly, 1 How. Sup. Ct. R. 134; S. C. 17 Peters, R. 128 ; Flagg ». Mann, 2 Sumner, R. 489; Daniel v. Mitchill, 1 Story, R. 172, 188; Union Bank of Georgetown o. Geary, 5 Peters, R. 99; Clarke's Executors v. Van Keimsdyk, 9 Cranch, 153, 160. EQ. PL. 58 686 EQUITY PLEADINGS. [CH. XVIII. sists of two parts ; and, in fact, performs a double ofiBce. It con- sists, first, of the defence of the defendant to the case made by the bill ; and, secondly, of the examination of the defendant on oath, as to the facts charged in the bill, of which a discovery is sought, and to which interrogatories are usually addressed.^ . It combines together, therefore, two proceedings, which in the Civil Law are completely separated ; and which also are separated in the prac- tice of the ecclesiastical courts, although not always in the courts of admiralty.^ In the Civil Law, as we have seen, the defendant first puts in his defensive allegation to the claim made by the plaintiff; and, after an answer to that is put in, the plaintiff pro- pounds, in a sort of supplemental libel, called the libellus articula- tus, his interrogatories respecting the charges made in the posi- tions of the plaintiff, as they are called (that is, in his bill of com- plaint) ; and the defendant then responds to those interrogatories.^ In the ecclesiastical courts, where also the defendant is required to make an answer or discovery upon oath, the answer to the in- terrogatories is in a wholly distinct instrument from the responsive allegation (as it is called) to the libel, which contains the defence of the defendant.* In a bill in equity, both of these distinct parts are united in one instrument, called an answer. And this ambi- guity in the use of the word, answer, importing this double sense and office, has sometimes led to erroneous decisions, and to no small confusion in language.^ § 851. There are many cases, in which a defendant cannot avail himself of his defence, in any other form than by an answer. Thus, *if a defence, which can be made to a bill, consists of a variety of circumstances, so that it is not proper to be offered by way of plea ; or if it is doubtful, whether, as a plea, it will hold ; the defendant may set forth the whole by way of answer, and pray the same benefit of so much -as goes in bar, as if it had been pleaded to the bill.^ Or, if the defendant can offer a matter of plea, which > Mitf. Eq. PL by Jeremy, 15, 16. « Glib. For. Rom. 90, 91, 218; Ante, § 39; Gresleyon Evid. 16. ' Glib. For. Rom. 90, 91, 218; Ante, § 39. * Gresley on Evid. 16 ; Hare on Dlscov. 223 - 228 ; Wigram on Points of Dis- cov. 11, 94, 113, 114, 1st edit.; Id. 10, 11, 18, 261-268, 298-324, 2d edit.; Ante, § 39 and note. ^ jb;,}. ° Mitf. Eq. PI. by Jeremy, 308. Where a defendant, neither pleading nor de- murring to any part of a bill, answers it, whether sufficiently or insufficiently, he is generally thenceforth precluded from filing a plea in the suit, notwithstanding the bill be amended. Esdale v. Molyneux, 2- Collyer, 636. §860-852.] ,^3WERs. gg^ would be a complete bar ; but he has no occasion to protect him s If from any discovery sought by the bill, and can off^r drcum" stances which he conceives to be favorable to his case and Trh he could not offer together with a plea, he may set fortL the whole matter in the same manner.^ Thus, if a purchaser for a valu b consideration, clear of all charges of fraud or notice, can offer ad- di lonal circumstances in his favor, which he cannot set foTrby way of plea, or of answer in support of a plea, such as the expend- ing of a considerable sum of money in improvements with the knowledge of the plaintiff; it may be more prudent to set out the whole by way of answer, than to rely on the single defence by way of plea ; unless it is material to prevent the disclosure of any cir- cumstance attending his title.^ For a defence, which, if insisted on by a plea, would protect the defendant from a discovery, will not in general do so, if offered by way of answer.^ § 852. An answer must be full and perfect to all the material allegations m the bill. It must confess, avoid, deny, or traverse all the material parts of the bill.* It must state facts, and not arguments.5 It is not sufficient that it contains a general denial of the matters charged ; but there must be an answer to the sift^ ing inquiries upon the general subject.^ It should also be certain • Ibid. ' Mitf. Eq. PI. by Jeremy, 308, 309 ; Wigram on Points of Disoov. 191-198, 1st edit. ; Id. 190-202, 2d edit.; Ante, § 846, 847. ' Ibid. But see Rules in Equity of the Supreme Court of the United States, 1842, Rule 39 ; Ante, § 846, 847. * Com. Dig. Chancery, K. 2 ; Pr. Reg. in Chan. 6. ' Cooper, Eq. PL 313. ■' Cooper, Eq. PI. 313 ; Mountford v. Taylor, 6 Ves. 792 ; Hepburn v. Durand, 1 Bro. Ch. R. 503; Prout v. Underwood, 2 Cox, 135; Miles v. Miles, 7 Foster, 447. Upon this subject, Mr. Daniell says: "It may be observed, that where the bill asked, whether, on the marriage of a person, a settlement of the property of his wife was not executed ; an answer, that no settlement of any property was executed at the marriage of the person mentioned, was held to be insufficient ; Sir John Leach, vice-chancellor, being of opinion, that although it is true, that the general answer in the above case included in it an answer to the particular in- ■ quiry, yet such a mode of answering might, in some cases, be resorted to, in order to escape from a material discovery. It is right, however, to notice, that in a recent case in the court of Exchequer, the proposition laid down by Sir John Leach was considered as too general ; and it was held, that although the maxim that dolus latet in generalibus is applicable in some cases, it is not so in all. In that case the bill inquired, whether the defendant had not now, or whether he had not at some time, and when, in his possession, custody, or power, four books 688 EQUITY PLEADINGS. [CH. XVni. in its allegations, as far as practicable.^ To so much of the bill, as it is necessary and material for the defendant to answer, he must speak directly and without evasion ; and he must not merely answer the several charges literally ; but he must" confess or trav- erse the substance of each charge.^ Thus, if a defendant is charged with having in his possession, custody, or power, books, papers, or writings, &c., a statement in his answer, that there are certain books, papers, or writings, &c., in the West Indies, the particulars of which he is unable to set forth, without any answer which were specified in the bill ? The defendant denied, that he had in his pos- session or power the four books in the bill mentioned, or that he had then or ever had any books relating to the matters inquired after by the bill, save and except those set forth in his schedule ; and upon an exception being taken to the answer, the court held it to be sufficient. There can be no doubt, however, that the policy of proceedings in this court is, that a general denial is not enough, but there must be an answer to sifting inquiries upon the general question ; and the advantage of such policy is strongly illustrated by the circumstance referred to in Hepburn V. Durand. In that case, the defendant, Mr. Durand, was interrogated by the bill, whether he had not received certain sums of money, specified in the bill, in the character of a ship's husband. In his answer, he swore that' he had not re- ceived any sums of money whatever, except those set forth in the schedule to his answer, in which schedule the sums specified in the bill were not comprised, but he did not otherwise answer the Interrogatory. On exceptions being taken to the master's report upon the sufficiency of the answer, Lord Thurlow declared himself to be of opinion, that a man could not deny, generally, particular charges which tended to falsify such general denial, and therefore held the answer insufficient ; and it appears by a note of the reporter, that it turned out, in point of fact, that Mr. Durand afterwards recollected the receipt of the particular sums, and admitted them by his further answer. But although the court requires, that all the particular inquiries should be answered, as well as the general question, it will be no objection to the answer to the particular interrogatory, that the defendant has not answered it so particularly as to meet it in all its terms, provided it is with reference to the charge upon which the interrogatory is founded, and the object of the bill fairly and substantially answered. It is also to be noticed, that if any of the particular inquiries are as to matters which are totally immaterial to the case, tlie defendant need not answer them. Thus, where a bill required the defendant to set forth, whether certain bonds were not given for a valuable and bond fide consideration, and if not, for what consideration they were given ; and the defendant denied, that such bonds (if given) were given for a valuable and hona fide consideration, but did not answer as to any other consideration ; the court of Exchequer held, that the question need not be answered, because the law knows of no other con- sideration than a hona fide, consideration." 2 Daniell, Ch. P. 260, 261 ; Bally ». Kenrick, 13 Price, R. 291 ; Daniell v. Bishop, 13 Price, R. 15. ' 1 Mont. Eq. PI. 184. '^ Mitf. Eq. PI. by Jeremy, 309, 310. § ^^2.] ANSWERS. ggg as to the fact, whether they are in the defendant's possession, cus- tody or power, will be insufficient; for if the defendant admits the books, &G., to be in his possession, custody, or power, the plaintiff may make a ^notion calling upon the defendant to' pro- duce them ; and the court will, upon such motion, order them to be brought in within a reasonable time.i And so, where a defend- ant stated in his answer, that he had not certain books, papers, and writings, in his possession, custody, or power, because they were coming over to this country, it was held, that they were in his power, and that the defendant ought to have so stated in his answer.2 It may be observed here, that where books, papers, or writings, are in the custody or hands of the defendant's sohcitor, they are considered to be in the defendant's own custody or power, and should be stated to be so in his answer .^ So, generally, all the books, papers, and documents which the defendant has a right to inspect, provided he can enforce that right, are deemed to be in his power.* [And where the defendant in his answer stated that the books, concerning which the interrogatories were made, were in the joint custody of himself and of his copartners, and that he had asked permission to inspect and make extracts from the books to enable him to comply with the interrogatories, but that his co- partners had refused to permit him to do so, it was held insuffi- cient, since the defendant had not stated any contract between himself and his copartners which prevented him from inspecting the books and making extracts from them without their perjaais- sion.^] And, wherever there are particular precise charges, they must be answered particularly and precisely, and not in a general manner, although the general answer may amount to a full denial of the charges.® Thus, where a bill required a general account, and at the same time called upon the defendant to set forth, whether he had received particular sums of money, specified in 1 2 Daniell, Ch. Pr. 258, 259 ; Farquharson v. Balfour, Turn. & Russ. 190. " Ibid. » 2 Daniell, Ch. Pr. 260. * Taylor v. Eundell, 1 Phillips, Ch. R. 222, 226. * Stuart V. Lord Bute, 12 Sim. 460. See Reed v. Langlois, 2 Mac. & Gord. 627 ; Glyn v. Caulfield, 15 Jurist, 807 ; S. C. 6 Eng. Law & Eq. Rep. 1, where the subject is examined at length, how far a party may decline to produce docu- ments, on the ground that they are in the custody of another. * Mitf. Eq. PI. by Jeremy, 309, 310 ; Cooper, Eq. PI. 314 ; Hepburn v. Durand, 1 Bro. Ch. R. 503. 58* 690 EQUITY PLEADINGS. [CH. XVm. the bill, with many circumstances respecting the times when, and of whom, and on what accounts, such sums had been received ; it was determined, that setting forth a general account by way of schedule to the answer, and referring to .it as containing a full account of all sums of money received by the defendant, was not sufficient. And the plaintiff having excepted to the answer on this ground, the exception was allowed ; the court being of opin- ion, that the defendant was bound to answer specifically to the specific charges in the bill ; and that it was not sufficient for him to say generally, that he had in the schedule set forth an account of all sums received by him.^ § 852 a. Although the defendant by his answer denies the title of the plaintiff, yet in many cases he must make a discovery prayed bythe bill, although not material to the plaintiff's title, and althougli the plaintiff, if he has no title, can have no benefit from the discovery.^ As if a bill is filed for tithes, praying a dis- ' Ibid. ; Gresley on Evid. 17, 21 ; Wigram on Points of Discov. Ill and note (jr), 1st edit. ; Id. 286, note (i), 2d edit. An answer which is manifestly evasive, may be considered as no answer, and will be liable to be taken off the files of the court. Thomas v. Lethbridge, 9 Ves. 463 ; Smith v. Serle, 14 Ves. 415. " Mitf. Eq. PI. by Jeremy, 310 ; Swinborne v. Nelson, 15 Eng. Law & Eq. 572. In that case the master of the rolls (Sir John Romilly) observed : " The question in this case is, whether the defendant has sufficiently answered the plaintiff's bill. The plaintiffs are possessed of a patent for the manufacture of isinglass, and they charge the defendant, who is a manufacturer of isinglass, with having infringed their patent, and they ask for an account of the defendant's dealings and transac- tions,'and seek to make him answerable for the profits made by him in the manu- facture of his isinglass according to the process discovered by the plaintiffs. The interrogatories in question relate to the dealings and transactions of the defendant, and the profits made by him in the business. The defendant does not deny that he has not answered these interrogatories, but he contends that he is not bound to answer them ; and he rests his defence on the principle, that he disputes the title of the plaintiffs. He denies the existence of that title. He contends that it is not, and that it will not ever be established ; and he argues that it will be an act of oppression on him, and contrary to the rules and practice of the court, to com- pel a defendant to set out an account of the earnings made by him, when, in truth, it may, and probably will, turn out that the court will not, at the hearing, direct any account at all to be taken of those profits. The first exception, I think, is taken in error, and must be overruled ; but the question I have stated arises on the second and third exceptions. The defendant relies, in support of this position, on the case of Adams v. Fisher. That case is generally understood to lay down, as a broad principle, that the right of the plaintiff to see the documents which are admitted by the defendant to be in his possession, and to relate to the subject- matter of the suit, and which are not otherwise protected, must depend on the §852, 852 a.] ^^swers. 691 covery of the quantity of land in the defendant's possession, and of the value of the tithes, although the defendant insists upon a £f ^u!h^"lT• "'t'li-''' ';\"^'* '° ''''"' ^" *^* '^'' - - '^- circumstance that such ngh IS not disputed by the defendant. The Lord Chancellor rests his deeision, re using to permit the plaintiff to inspect the documents in tha case on the circumstance that the defendant had denied the plaintiff's title, and had st^ed on his answer what If true, would preclude the plaintiff from maintaining the suit against him. The first question to be considered is, whether the answering the interrogatories rests on the same principle as the production of documents and If that question be answered in the affirmative, the next question is, whether the decision in Adams v. Fisher precludes the plaintiffs from claiming the discov- ery here sought. " The first question admits of an easy answer. It is impossible to lay down one rule on this subject of production of documents, and another upon answers to be put in to interrogatories. Such a distinction would be opposed to all principle and all authority, and it would, in truth, be a mere technicality which would be easily evaded, and which would give rise to expense and delay. It is obvious that a defendant who could avoid producing a document by disputing the plain- tiff's title, could not, on the same ground, avoid answering an interrogatory respecting it. The only effect of that rule would be to induce the plaintiff to introduce such interrogatories into the bill as would compel the defendant to set out at great length the contents of the document in the body of the answer, iMtead of inserting the title of it in the schedule ; and would thus render nuga- tory the existing practice of giving a schedule of documents, by which much expense and prolixity of proceeding is avoided. I entertain, therefore, no doubt that the production of documents and the answering of interrogatories must, for this purpose, be treated as the same, and that the second question arises ; and that the case of Adams v. Fisher must be considered, in conjunction with the other-authorities, applicable to this point, for the purpose of considering how far, on this answer, the plaintiffs are precluded from obtaining the discovery they seek. " I have, in considering this question, very carefully examined all the cases I am aware of that bear on this point ; and I have also perused the various obser- vations and comments of the writers on this point, the settlement of which is of importance for the purpose of avoiding expense and delay in the further prosecu- tion of suits. This point has been considered in Wigram on Discovery, and he does not hesitate to state that, prior to the case of Adams v. Fisher, he had con- sidered that, in cases where the defendant had submitted to answer, the rule of the court was to give to the plaintiff the same full right of discovery before the hearing as he would be entitled to if his right to relief had been admitted or proved, and the only question between the parties was the amount of his demand. It cannot be denied that the fundamental principle is to be found in all the de- cisions on this point, which is, that a defendant who submits to answer must answer fully ; that is, if a prima facie case for relief be made by a bill calling for an answer. " The defendant may, if the circumstances of the case would permit, bring for- ward any fact or series of facts by way of plea, to dispute the right of the plaintiff 692 EQUITY PLEADINGS. [CH. XVm. modus, or upon an exemption from payment of tithes, or abso- lutely denies the plaintiff's title,^ he must yet answer to the quan- to call on him to answer either the whole of the bill or some particular portion of it. I have said a prima facie case for relief, because, of cours^, if there be not that, it might be raised by demurrer ; but that if he be unable or declines to take this course, he must technically and categorically, answer every statement of the bill to which he is interrogated which can assist the plaintiff in making out his title to relief ' There is no difference,' observes Sir William Grant, in Taylor V. Milner, 11 Ves. 42, ' whether the court has determined that the bill is such as the defendant must answer, or whether the defendant has by his own conduct precluded himself from raising that question.' The importance, as a matter of pleading, of keeping distinct these separate modes of pleading can be scarcely overrated. To determine on plea pr demurrer that the defendant must answer the Tjill or a portion of it, and then to be allowed by his answer to contend he is not bound to answer that very same portion of the bill, would not only be con- trary to the rules and practice of the court, but repugnant to good sense, and create much confusion and expense. In truth, this repugnancy it is that created the doctrine which at one time was pushed so far, and carried into such minute technicality, that a demurrer or plea was overruled by being coupled with an answer extending to some portion of the same matter which was covered by the demurrer or plea. This principle which, if kept within proper limits, is essential to prevent rules of pleading from falling into inextricable confusion, is not in any degree affected or varied by the cases referred to, of which the case of Wedder- burn V. Wedderburn is a good instance. In that case, the defendant had sought by plea to protect himself from answering certain questions relative to partner- ship accounts ; the court, on the argument of the plea, thought that this question could better be determined at the hearing of the cause, when all the questions between the parties could be better understood; and accordingly the court directed the plea to stand for an answer, with liberty to the plaintiff to except, but not so as to call for the accounts of the partnership subsequently to the 1st of May, 1801, which was the discovery sought to be protected by the plea. That case, and others of the same class, in my opinion, corroborate instead of weaken the distinction before adverted to. If this question could have been raised by the answer, where was the necessity of the plea, a form of pleading which could never have had any existence if an answer could equally well have served the same purpose ? And the decision of the court shows, not that the plea was not proper or that the same point could be raised by the answer, but that in that and other cases of a similar description, the court was of opinion that the benefit of the plea might, on the circumstances of those cases, be safely and beneficially reserved until the hearing, which, in truth, admits and confirms the distinction referred to. It is true that this necessity of answering fully is limited to one or two, cases, which do not, however, weaken or destroy the principle established. Thus, a defendant is not compellable to produce the title-deeds of his property unless where the production of them is essential to make out the title of the plaintiff to the relief he asks ; but this is because in other cases where, for instance, the re- ' Mitf. Eq. PI. by Jeremy, 310. See, however, Gilb. Cas. in Chan. 229. § 852 O.] ANSWERS. 693 tity of land and value of the tithes.^ Or, if a bill is filed against an executor by a creditor of the testator, the executor must admit covery of deeds is the relief sought, as in the case of redemption, a list or descrip- tion of them is all that the plaintiff can require for the purpose of the suit. So, also, a defendant is not bound to disclose confidential communications between himself and his solicitor. But this rests on a different principle, and not on the denial of the title of the plaintiff, but on the principle that the plaintiff's right to a discovery does not extend to a discovery of the manner in which the defendant intends to support his case. " It is not my intention to go through the authorities. It is sufficient for me to say, although the earlier decisions are not decisive on this point, that in the cases of Eowe V. Teed, and Somerville v. Mackay, Lord Eldon expressed his opinion, (though without deciding the point undoubtedly in those cases,) that a defendant could not answer as to the part of the bill and refuse to answer the rest. And Sir John Leach, in Mazarredo v. Maitland, and in v. Harrison, 4 Mad. 252, treats the point as settled. In the former case he says, ' A defendant cannot by answer deny the plaintiff's title and refuse to answer as to facts which may be usefiil evidence in support of that title. He cannot answer in part ; if he answers at all he must answer the whole of the bill.' He also, in an earlier part of that judgment, states his opinion that he shall always follow the rule laid down by Lord Eldon in the observations he made in the course of the arguments in those previous cases ; and so it has always been considered until the case of Adams v. Fisher. I am disposed also to think that it was not intended by Lord Cottenham to carry his decision to the extent it has been considered to cover. According to the principles supposed to be established by it, if an executor shall dispute the right of a legatee or the debt of a creditor suing on behalf of himself and others, he might resist setting forth the accounts of his testator, which is a proposition at variance with the uniform and settled practice and decisions of the court ; but I am disposed to believe that the decision of Adams v. Fisher was intended by the Lord Chancellor to be limited to withholding only the production of the docu- ments which could not assist the plaintiff in making out his title to the relief sought; at least the observations made by his lordship respecting the admission of counsel to the question put by the court, seemed to point to this result. However this may be, the authorities which relate to the subject were not commented on, nor brought to the attention of the court; and after the most careful considera- tion which I am able to give to this subject, I am of opinion that If the case of Adam V. Fisher goes beyond the point I have last suggested, it Is not In accord- ance with the long line of authorities before decided In this court; and therefore if I have to choose between that case and other cases decided by equally high authority, I feel myself compelled to follow those which are alone, m my opinion, consistent with the principle on which pleadings in equity can be safely and clear- ly established. The first exception, therefore, must be overruled ; but I am o opinion that the second and third exceptions must be allowed ; but in. the present state of the authorities I can give no costs on either side." 1 Mitf. Eq. PI. by Jeremy, 311 ; Langham v. , Hardr. K. 130. 694 EQUITY PLEADINGS. [CH. XVIII. assets, or set forth an account, though he denies the debt.^ So, also, if the bill be filed for an account of partnership dealings, the defendant, although he denies the partnership, must set forth the accounts.^ § 852 b. But where the defendant sets up a title in himself, ap- parently good, and which the plaintiff must remove to found his own title, the defendant is not generally compelled to make any discovery not material to the trial of the question of title.^ Thus, where a testator devised his real estate to his nephew for life, with remainder to his first and other sons in tail, with reversion to his right heirs, and made his nephew executor and residuary legatee of his will, and on the death of the nephew his son entered as ten- ant in tail under the will ; upon a bill filed by the heir at law of the testator, insisting that the son was illegitimate, that the limi- tations in the will were therefore spent, and the plaintiff became entitled, as heir to the real estate, and praying an account of the personal estate, and application in discharge of debts and incum- brances on the real estate, the defendants against whom the ac- count was sought insisted on the title of the son as tenant in tail under the will, and that they were not bound to discover the per- sonal estate imtil the plaintiff had established his title. Excep- tions having been tal^'en to the answer, and allowed by the master, on exceptions to his report, the exceptions to the answer were overruled ; the court distinguishing this case, which showed a primd facie title in the defendant, the son of the nephew, from a mere denial of the plaintiff's title.* So, when the bill claimed the tithe of rabbits on an alleged custom, and the defendant denied the custom, it was determined that the defendant was not bound to set forth an account of the rabbits alleged to be tithable ; ^ and a like determination was made upon a claim of wharfage, against common right, the title not having been established at law.^ But • Mitf. Eq. PI. by Jeremy, 3U ; Randall v. Head, Hardr. R. 186. See Sweet V. Young, Ambl. R. 353 ; 11 Ves. 304 ; Mitf. Eq. PI. by Jeremy, 310, 311. ' w- Harrison, 4 Madd. R. 252 ; 2 Daniell, Ch. Pr. 250 ; Mitf. Eq. PI. by Jeremy, 313, and cases there cited. » Mitf. Eq. PI. by Jeremy, 311. * Ibid. Gethin v. Gale, 29tli Ocfober, 1 739, in Chan. M. R. Ambl. 354, cited in Sweet v. Young. See also Gunn v. Prior, cited 11 Ves. jr., 291 ; S. C. Dick. R. 657 ; 1 Cox,- R. 197. ' Mitf. Eq. PI. by Jeremy, 312 ; Randal v. Head, Hardr. R. 186 ; S. C. 1 Eq. Cas. Abr. 35. " Mitf. Eq. PI. by Jeremy, 312 ; Northleigh v. Luscombe, Ambl. R. 612, §852 a -853.] ^,^^^^_ ^^^ where a discovery is in any degree connected with the title it should seem that a defendant cannot protect hin^self y swe inTdl ^ Independent of the title, the court has declined lay- stanceTof '7 ^'"'''\ ''''''' ^'''^''^ ^^"^^'^^"^^ ^^P°" "^^ circum- stances of the particular case.^ § 853 The answer should, in general, also be full to all the in- terrogatories, founded on the matters charged in the bill, unless, mdeed, they are clearly immaterial.^ And one test of materiality IS to ascertain, whether, if the defendant should answer in the af- farmative, the admission would be of any use to the plaintiff in the cause, either to assist his equity, or to advance his claim to relief.* In other words, to ascertain, whether the discovery of the matters charged ^is necessary to ascertain facts material to the merits of the plaintiff's case, and to enable him to obtain a decree.^ If it is, it must be answered, for it is material ; if not, it is immaterial, and need not be answered.^ ' Mitf. Eq. PI. by Jeremy, 312 ; Hall v. Noyes, 3 Bro. Ch. 483. ' Mitf. Eq. PI. 311, 312. Mr. Daniel! has remarked, that it does not appear, that any such distinction, as is here suggested, has been recognized in the more recent cases, and that Ovey v. Leighton, 2 Sim. & Stu. 234, where the court held that a purchaser for a valuable consideration, not protecting himself by plea, must answer fully, affords a direct authority to the contrary. 2 Daniell, Ch. Pr. 251 ; Ante, § 848. ' Kuypers v. Dutch Reformed Church, 6 Paige, K. 570, 573 ; Jodrell v. Sla- ney, 10 Beavan, 225 ; Duke of Brunswick v. Duke of Cambridge, 12 Beavan, 280. * Beall V. Blake, 10 Geo. 460. ' Mitf. Eq. PI. by Jeremy, 306 ; Agar v. Regent's Canal Company, Cooper, Eq. E. 212; Ante, § 846. ' Gresley on Evid. 17, 18, 20; 2 Daniell, Ch. Pr. 246-248; Hirst v. Pierce, 4 Price, R. 394 ; and see Bally v. Kenrick, 13 Price, R. 291 ; Bally v. Williams, 1 McClel. & Younge, R. 334; Hare on DIscov. 160-162; Id. 298; Report of Chancery Commissioners, March, 1826, Appendix, pp. 2, 3. Mr. Bell, in his evidence before the Chancery Commissioners, speaks of the practice thus : " In respect of the immateriality it is very difficult to draw a line, as to what is ma- terial, and what is immaterial. A case very frequently occurs, that a clerk, in the interrogatory part of the bill, has not distinguished between what interrog- atories belong to one individual, and what belong to another ; that he has gone through, and interrogated a trustee with exactly the same particularity, as he has one of the material defendants in the cause. Any gentleman, who saw that, would not think it necessary to go through the whole minutiae of the case in the trustee's answer ; but would probably put in a short answer, that he was trustee under such a deed, and that he has or has not acted under that trust, and is 696 EQUITY PLEADINGS. [CH. XVni. § 853 a. We have already seen,^ that where a discovery would be immaterial to enable the plaintiff to obtain the decree, which, he seeks, it affords one of the grounds of exception to the rule, that a defendant, who submits to answer the bill, must answer it fully. It may not be useless, however, in addition to the cases already referred to upon this subject, to refer to one or two cases, where the point as to the defendant's right to exempt himself from answering, as to such parts of the bill, has been recognized by the court upon exceptions. Thus where a bill was filed by a person claiming under the limitations of a settlement, to set aside an appointment, by which his title was defeated, on the ground of fraud, and upon an answer having been put in denying the fraud, the plaintiff amended his bill, by inserting certain inquiries as to the manner "in which the appointment was attested, in order to show that it was not executed in the manner required by the set- tlement. To these inquiries, the defendant, by his answer, de- clined answering, and upon the question coming before the court, upon exceptions to the master's report, the vice-chancellor held, that the defendant was not bound to answer the interrogatories in the amended bill, because, the plaintiff having by his bill set up a case of fraud, the fact, whether the appointment was executed in conformity with the power or not, was immaterial to the case so set up.^ The same principle was also acted upon in another perfectly willing to act, as the court shall direct. But, if there are exceptions taken to that answer, there may be a great number of cases put, I think, where questions might be found, some of which it might be useful to the plaintiff- to have had answered, even in those cases, where they would not be evidence against any person, except the party himself; as where they might be extremely useful in extracting evidence from other parties. The general rule, I conceive to be, that he is bound to answer every question, that is asked him, without reference to whether it is, or is not, material. The court would probably take care that that rule was not applied in such a way as to be oppressive to the par- ties." Rep. of Chan. Comm., App'x, 3, Q. 21, 22 ; and see Q. 23, 33, &c. See Agar V. Regent's Canal Company, Cooper, R. 212 ; Jones v. Wiggins, 2 Younge & Jerv. 385 ; and see Gresley on Evid. 17, 18, note (g). The recent rules in the English Chancery, 1841, Rules 16-19, have modified the former practice, and the defendant need not now answer any statement or charge in the bill, unless specially and particularly interrogated thereto. These rules have been adopted by the Supreme Court of the United States. See Rules in Equity of the Supreme Court of the United States, January Term, 1842, Rules 40-42; Ante, § 35. » Ante, § 846. " 2 Daniell, Ch. Pr. 251 ; Codrington v. Codrington, 3 Sim. R. 519. § 853 a, 853 b.] ai^swers. 69T case,i where an information alleged, that certain sums had been vested in the defendants for certain charitable purposes, and that the defendants had misapplied those sums, and also stated gener- ally, that other sums were vested in the defendants upon the like trusts, but did not charge any application, or breach of trust re- specting them. Upon the question coming before the court upon exceptions, it was held, that the defendants were not bound to an- swer such a general statement, because, although it was averred in the bill, that the company had in their hands other funds than those, respecting which they were charged with having committed a breach of trust, there was no allegation, that there had been any misapplication of them, so that there could be no relief respecting them.'^ It is in application of the same principle, that the court holds, that where a bill is filed by a creditor or legatee, or other person claiming a definite sum out of the personal estate of a de- ceased person against an executor or administrator, if the defend- ant admits assets in his hands sufficient to answer the plaintiff's demands, he need not set out an account of the estate,^ because the admission by the defendant, that he has assets in his hands to answer the plaintiflf's demands, is sufficient to give the plaintiff all the decree he can require, so tliat any discovery as to the par- ticular assets, &c., would be useless and irrelevant.* § 853 b. It may also be observed, that the court will not, in general, allow the circumstance of a plaintiff's having a claim upon a defendant, to be used for the purpose of enabling such plaintiff to investigate all the private affairs of such defendant.* Thus, a vendor, in a bill for a specific performance, cannot inter- rogate the vendee as to his property ; ^ such an inquisition into the circumstances of a defendant would not be permitted, even though the bill should charge that the defendant was insolvent.^ In order to entitle a plaintiff to an answer to such an inquiry, he must show some specific lien upon the defendant's property, and ' Attorney-General v. Merchant Tailors' Company, 5 Sim. E. 328 ; 2 DanieU, Ch. Pr. 251. ' Agar V. Regent's Canal Company, Cooper, E. 215 ; 2 Daniell, Ch. Pr. 252, 253. *"Pullen V. Smith, 5 Ves. 21 ; 2 Daniell, Ch. Pr. 251-253. ' 2 Daniell, Ch. Pr. 253. • Francis v. Wigzell, 1 Madd. E. 258. ' See Small v. Atwood, as reported in Wigram on Discov. 74. EQ. PL. 59 698 EQUITY PLEADINGS. [CH. XVIII. pray some relief respecting it ; ^ and even then the court will not compel the defendant to make such discovery, where the interest, which the plaintiff may have in it, is very remote in its bearings upon the real point in issue, and would be an oppressive inquisi- tion.^ § 863 c. Another observation is important to be borne in mind in considering this subject of materiality or immateriality in an- swering the allegations in the bill, and that is, that a discovery may be m'aterial to the plaintiff's general case, if made by some of the defendants, which would be wholly irrelevant, if made by another ; in such cases, also, the defendant, from whom the dis- covery would be immaterial, is not obliged to make it.^ A de- fendant is, in fact, only obliged to answer to so much of the plain- tiff's bill as is necessary to enable the plaintiff to obtain a complete decree against him individually. Defendants in equity are fre- quently formal parties, and are introduced for the purpose of bringing before the court all persons who have an interest in th'fe subject in dispute ; and although in practice it is very common for each party to answer every part of the bill, it is often unneces- sary.* Thus, a trustee, or incumbrancer, or heir at law, need only answer so much of the bill as applies to him.^ The propriety of this distinction is obvious, when the nature of a bill in equity is considered, namely, that although it is a suit combining several parties for the purpose of obtaining an object, in which they are all in some manner interested, yet the suit is distuict as against each defendant ; each defendant, therefore, is liable only, so far as the bill prays relief against him, and his defence may therefore be applicable to that part of the case only.^ But, although there is no doubt of the existence of the rule, that a defendant is not bound to answer the plaintiff's bill further than is necessary to enable the plaintiff to obtain a complete decree against himself, it is not always easy to apply this rule to practice. It is, in fact,NS0 difficult to draw a line as to what is material and what is imma- ' Francis v. Wigzell, 1 Madd. R. 258 ; 2 Daniell, Ch. Pr. 253. * Wigram on Discov. 72 ; Don Santos v. Frietas, cited ibid. ; Webster v. Threl- fall, 2 Sim. & Stu. 190. See also Janson v. Solarte, 2 Younge & Coll. 132 ; 2 Daniell, Ch. Pr. 253. « 2 Daniell, Ch. Pr. 253. * Hare on Discov. 160 ; 2 Daniell, Ch. Pr. 253. ^ Agar V. Regent's Canal Company, Cooper, R. 215. ' Wigram on Discov. 70. §863 6- 85.4.] answers. ggg ^n"tt'^?/%"/*T^'f'' °'^'''* difficulty and responsibility, thPnn r f f \^f "'i^'^t - 1"« professional adviser, to selec the portion of the bill which it is incumbent upon him to answer.^ § 854 In general, if a fact is charged, which is within the defendant s own knowledge, as if it is done by himself, he must answer positively, and not to his remembrance or belief, at least if It IS stated to have happened within six years before.^ But as to the facts, which have not happened within his own knowledge, he must answer as to his information and belief, and not to his°infor- mation merely, without stating any behef, either one way or the other.3 As to recent facts, however, within his own knowledge, he must answer positively, and not on belief, although not so as to the result of a conversation.* There is great practical difficulty on this head ; for although the answer must meet, in some way or other, every statement in the bill, and tlie defendant is required to speak " to the best of his knowledge, remembrance, informa- tion, and belief" ;5 yet there will be partial admissions and deni- als of every shade and character ; some delivered in terms of un- • Hare on Discov. 161 ; 2 Daniell, Ch. Pr. 253, 254. Mr. Bell, in his evidence before the Chancery Commissioners, speaking on this point, said : " Every inter- rogatory must be founded on the allegation of the bill ; if the allegation is irrele- vant to the matter in question, it must be expunged for impertinence ; otherwise it is, prima facie, taken as relevant, and the defendant is therefore bound to an- swer every allegation bearing on his part of the case, whether he thinks it mate- rial or not. The court is to judge, in case of doubt, whether the allegation applies to his part of the case ; and if a court was to see that a defendant, by accident, or to save expense, (the passages being short,) had not referred the bill for im- pertinence, but the matters were wholly immaterial, or that he was called on to answer a part of the case, which, though not impertinent, had no reference to him ; it would not, on exceptions, compel the defendants to answer that part ; but if there can be any doubt, whether the answer may or may not be material the defendant must answer. It is in this sense that I expressed myself, that the defendant is bound to answer, whether the question is material or not ; as the materiality or immateriality is not a matter of argument, inasmuch as, if it admits of a doubt, he ought to answer." See Report of Chancery Commissioners, 1826, App'x, A. 9. " Cooper, Eq. PL 314; 2 Daniell, Ch. Pr. 257; Carey v. Jones, 8 Geo. 516. ' Post, § 855, 855 a. * Cooper, Eq. PL 314 ; Mitf. Eq. PL by Jeremy, 309, 310 ; Hall v. Wood, 1 Paige, R. 404 ; Utica Insurance Co. v. Lynch, 3 Paige, R. 210; Brooks v. Byam, 1 Story, R. 296 ; Kittredge v. The Claremont Bank, 3 Story, R. 590 ; Post, § 855 a, 868 h. ' Ante, § 845, note. 700 EQUITY PLEADINGS. [CH. XVIH. certainty ; some mixed up with explanatory or qualifying circum- stances ; and some very loose and general in their language and import.^ [Neither is it necessary that the defendant should say in so many words, that he has no knowledge, information, or be- lief, in relation to the charge on the bill ; it is sufficient, if he use any other expression, which in substance necessarily amounts to the same thing.^] § 855. It is with a view to meet this difficulty, that Lord Clar- endon's Order was made, declaring, that an answer to a matter, charged as a defendant's own act, must regularly be without say- ing, "to his remembrance," or " as he believeth," if it be laid to be done within seven years before ; unless the court, upon excep- ^ Gresley on Evidence, 20 ; Post, § 868 6. Mr. Daniell, speaking on this sub- ject, says : " A defendant must answer ' as to his knowledge, remembrance, infor- mation, and belief.' And, in general, if a fact is charged, which is in the defend- ant's own knowledge, as if done by himself, he must answer positively, and not to his remembrace or belief only, if it is stated to have happened within seven years before. It seems, however, that where a special cause is shown, so positive an answer may be dispensed with. And in Hall t'. Bodley, it is said, that a de- fendant having sworn in his answer, that he had received no more than a certain sum, to his remembrance, it was allowed to be a good answer. As to the facts, ^hich have not happened within his own knowledge, the defendant must answer as to his information and belief, and not as to his information merely, without stating any belief either one way or the other. It is not, however, necessary to make use of the precise words ' as to his information and belief,' the defendant may make use of any expressions, which are tantamount to them : thus, to "say, that the defendant cannot answer to facts inquired after, as to his belief or other- wise, is generally considered a sufficient denial ; for although the word ' informa- tion ' is not used, the expression ' belief or otherwise ' is held to include it. And so, where an answer was in this form : " And this defendant further answering saith, it may be true for anything he knows to the contrary, that,' &c., and after going through the several statements, it concluded thus : ' But this defendant is an utter stranger to all and every such matters, and cannot form any belief con- cerning them'; the vice-chancellor (Sir L. Shadwell) was of opinion, that the defendant, in stating himself to be an utter stranger to aU and every the matters in question, did answer as to his information, and did, in effect, deny that he had any information concerning them. It may be collected from the above case, that a defendant cannot, by merely saying, ' that a matter may be true for anything he knows to the contrary,' avoid stating what his recollection, information, or be- lief, with reference to it is, or saying, that he has no recollection or information, or that he cannot form any belief at all concerning it, either in these words or in equivalent expressions." 2 Daniell, Ch. Pr. 256, 257 ; Amhurst v. King, 2 Sim. & Stu. 183 ; Post, § 856, 868 b. ' King V. Ray, 11 Paige, 236. And see Jones v. Wiggins, 2 Younge & Jervis, 385 ; Morris v. Parker, 3 John. Ch. R. 297. § 864, 855.] A^s^,,s ^^^ tion taken shall find special cause to dispense with so positive an answer.^ And xf the defendant deny the fact, he must averse or deny .t (as the case requires) directly, and ;ot by way f n " ative pregnant.^ As, if he be charged with the receipt of a sum of money, he must deny or traverse, that he hath not received thatsum or any part thereof, or else set foHh, what part he hath received 3 And, if a fact be laid to be done with divers circum- stances, the defendant must not deny or traverse it literally as it IS laid in the bill ; but he must answer the point of substance pos- itively and certainly.* [So an answer to a bill of discovery for documents in the defendant's possession, merely alleging the de fendant's belief that the documents do not contain evidence or tend to show the plaintiff's title, is not sufficient, but the answer must distinctly negative the allegations in the bill.5] However, it is plain, that no positive rule can fully provide for all the va- rious difficulties in cases of this sort ; and each case must, there- fore, be decided upon its own circumstances.^ • Com. Dig. Chancery, K. 2 ; Pract. Reg. 7. But see Hall v. Bodley, 1 Vern R. 470; 2 DanieU, Ch. Pr. 254, 257. ' Com. Dig. Chancery, K. 2; Pract. Reg. 8; Beames, Ord. in Ch. 29, 179. See Patrick v. Blackwell, 21 Eng. Law & Eq. 248. ' Ibid. * Beames, Ord. in Ch. 179; Id. 28, 29; Mountford v. Taylor, 6 Ves. 792; Gresley on Evid. 21 ; Com. Dig. Chancery, K. 2 ; Pract. Reg. in Chan. 8 ; 2 Daniel], Ch. Pr. 259, 260. ° Attorney-General v. Corporation of London, 2 Mac. & Gord. 247. But see Peile V. Stoddart, 1 Mac. & Gord. 192. ° See Neate v. Duke of Malborough, 2 Younge & Coll. 3 ; Ante, § 35, 38 ; Tucker v. The Cheshire Railroad Co. 1 Foster, 39. Mr. Bell, in his examination before the Chancery Commission, declared, that " he had always had a very great doubt and never could bring his mind completely to any general rule on the sub- ject, whether the defendant, when challenged ^or not answering with sufficient particularity might allege that the question was no more particular than his an- swer." He gave as an instance to explain the difficulty, " The allegation being, ' That the person had received such a sum of money'; the interrogatory has been, ' Have you not received such a sum of money ? ' and by accident the words ' or any person or persons by your order, or for your use,' has been omitted ; I have known the master say, under these circumstances, ' I will not go beyond your in- terrogatory.' Now, it appeared to me to be an error not to allow an exception on those grounds. It is to let off a man by means of a negative pregnant. I con- ceive, in this case, it would be very proper to report the answer insufficient for not going further, although the words I mentioned were not inserted in the inter- rogatory. But if you get into a case a little more complicated, it is very difficult to say, how far a defendant should go in explanation. Unless it is clear you are 59* 702 EQUITY PLEADIHGS. [CH. KVIII. § 855 a. In many cases where the defendant is asked, as to his knowledge or information of facts, it may not be sufficient for him to say, that he has no knowledge or information of those facts ; if the facts are such, as have passed between his agent and the plain- tiff, and he is interrogated thereto ; for under such circumstances, he is bound to make inquiries of his agent, before he makes his answer.^ Such a case is not governed by the same considerations, as one, where the facts are equally open and accessible to botli parties, and the means of information are the same ; as, for ex- ample, where the death of a party is stated, and interrogatories as to the fact are addressed to the defendant ; for the principal has means of knowing from his agent, what the fe,cts are ; and he has no right in his answer to say, that he does not know what his agent has done. It is plain, that, if he had answered, that he had been informed by his agent, that the facts were so, and he believed the information, the answer would be good evidence, and might be material .2 So, if a party is interrogated as to his knowledge, remembrance, information, and belief, and the answer alleges that the defendant has no knowledge or information, that a fact is not true, that is not sufficient, for he ought to state, whether he be- lieves it to be true.^ [* § 855 b. It is a material consideration, in what form the al- legations in an answer must be made, in order to bind the party or avoiding a disclosure of the truth by a negative pregnant, I think, you are not bound to go further in your answer than the interrogatory." Gresley on Evi- dence, 20, 21 ; Report of Chancery Commissioners, App'x, 3, Q. 6 ; Ante, § 38, note ; 46, note. If a bill state a fact, which is not denied by the answer, and by the answer it appears, that the defendant has the means of answering, as to his belief; by making an inquiry as to that fact, he must answer as to the result of that inquiry ; and his stating, that he is unable to set forth, &c., is not suiBcient. Neate v. Duke of Malborough, 2 Younge & Coll. 3 ; Post, § 835 a. If a defend- ant is interrogated in equity, in aid of a suit at law, as to the consideration given for a bill of exchange, the defendant in equity is bound to state not only the consideration, which he gave for the bill itself, but that which he knows another to have given. Glengall v. Edwards, 2 Younge & Coll. 125, 126 ; Hall v. Wood, 1 Paige, R. 404. ' Earl of Glengall v. Frazer, 2 Hare, R. 99, 103. And see Kittredge v. The Claremont Bank, 1 Wood. & Min. 244; Attorney-General v. Rees, 12 Beavan, 50 ; Swift V. Swift, 13 Geo. 140. ' Earl of Glengall v. Frazer, 2 Hare, E. 99, 103. And see Attorney-General V. Rees, 12 Beavan, 50. ' Brooks V. Byam, 1 Story, R. 296 ; Post, § 868 b. And see Kittredge v. The Claremont Bank, 1 Wood. & Min. 244. § 855 a - 856.] answers. 703 to raise an issue upon the traverse, so as to entitle the defendant to give evidence in support of the averment. As late as March, 1864, it was decided by the court of Appeal in chancery, that a statement by an executor, in answer to an inquiry by a creditor that he is executor, and that the will has been proved, will render him liable as executor ; and that a defendant, who in his answer says, that he believes the testator to have been incompetent, instead of saying he was told that he was incompetent, but knew nothing about it, will be held to have insisted upon that allegation in de- fence of the suit; and the allegation will be confirmatory evi- dence, that he took upon himself the executorship.^] § 856. Where there is the general clause of combination only in the bill, the defendants need not, although they usually do, an- swer to it. Where a particular combination is charged in a bill, a particular answer must be given, and a general denial will not do.^ A defendant is not obliged to answer facts, which are in- terrogated to, without being ' stated, or charged in the bill.^ But if the defendant does answer to such facts, and the plaintiff re- plies to his answer, they are properly put in issue, although they were not charged in the bill.* A- general charge, however, as to the fact of payment, enables the plaintiff to put all questions upon it, that are material to make out whether it was paid ; and it is not necessary to load the bill by adding to the general charge, that it was not paid, that so it would appear, if the defendant would set forth, when, where, and other particulars.^ In a suit for an account, an answer going no further, than to enable the plaintiff to go into the, master's office, is not sufficient. He is entitled to the fullest information the defendant can give him by answer, not by long schedules in an oppressive way ; but bj giving the best account possible, stating, how it is, and referring to books of ac- count and other vouchers, so as to make them part of the answer, and giving the fullest opportunity of inspection." r* > Vickers v. Bell, 10 Jur. N. S. 376. But tte court said, that as the case was one of some doubt, it was very properly brought before the court of Appeal, and the suit was therefore dismissed, without costs.] ' Cooper, Eq. PL 314, 315 ; White v. Williams, 8 Ves. 193 ; Faulder v. Stuart, 11 Ves. 296 ; Ante, § 36, 37. ^ . Ibid * Ibid. Ibid. . Ibid • Beall V. Blake, 10 Geo. 460 ; 2 Daniell, Ch. P. 257, 258. Mr Daniell here says : " It is, however, to be observed, that where executors or other r„^ tees are called upon to set out accounts, they must set them forth; although 704 EQUITY PLEADINGS. [CH. XVIII. § 857. Where the defendant has answered all the circumstan- ces of his own case, and as far as he has any concern in the mat- for the purpose of rendering their schedules less burdensome, they may, instead of going too much into particulars, refer to the original accounts in their posses- sion in the manner above stated ; and when it is said, that a defendant may refer to accounts in his possession, it must not be understood as authorizing him to refer, by his answer, to accounts made out by himself for the purposes of the case, but only to accounts previously in existence. The same rule, which has been before stated, with respect to corporations aggregate, viz., that it is their bounden buty before they put in their answer, to cause every deed, paper, and muniment in their possession or power, to be diligently examined, and to give in their answer all the information which results from such examination, may, with propriety, be applied to all individuals, who are required to answer a bill." Attorney-General v. Bailiffs, &c. of East Ketford, 2 Mylne & Keen, 35. Mr. Daniell afterwards, in some subsequent pages (p. 262-264), adds the following remarks, which, although long, are in a practical sense so important as to be proper for insertion here. " It is, however, the general practice, where a bill requires the defendant to set forth a general account, or to answer as to moneys received, or documents in his possession, to set forth the account or list of the sums, or documents in one or more schedules annexed to the answer, which the defendant prays may be taken as part of his answer, and such practice is very convenient, and in many cases indispensable. It may also be resorted to by the defendant, for the purpose of showing the nature of his own case, or of strength- ening it, even though there is nothing in the bill itself, or in the interrogatories, which may render a schedule necessary. Thus, where a bill was filed by mer- chants in England against merchants in India, for an account of the dealings and transactions between them, and one of the defendants (residing in England), in answer to an allegation in the bill, that some cotton which had been sent by the defendants to the plaintifis was of inferior quality, said, that he had no personal knowledge of the dealings between the two firms, but that he had received cer- tain affidavits and certificates which his partners in India had caused to be made by experienced persons there, from which he believed the cotton to be of superior quality, and set forth the affidavits and certificates in a schedule hcec verba ; Sir John Leach, vice-chancellor, and afterwards Lord Eldon, upon appeal, held that the schedule was not impertinent ; because, although it was not absolutely neces- sary for the defendant to set out the affidavits and certificates, as he might have made them part of his answer by referring to them, yet he had a right to put them upon his answer, if he thought fit to do so ; because, if his answer should be made use of in a court of law, it might be impossible for him to use the certificates and affidavits unless they were set out. It is to be remarked, however, that it was apparently with great reluctance, that Lord Eldon came to the conclusion at which he arrived in the above case ; and that upon dismissing the appeal, he did so without prejudice to the question as to costs, when applied for at the hearing of the case. And, in general, a defendant must be careful not to frame his schedule in a manner which may be burdensome and oppressive to the plaintiff, otherwise they will be considered impertinent. Thus, where a bill was filed for an account containing the following interrogatory, ' Whether any and what sum ^ ^^''•] ANSWERS. ,^Q5 ters Of the bill, he will not be compelled to answer the further matters or circumstances of the bill.^ Yet, if he does answer a of money was due from the house of A, to the house of B an,1 T,nw ,u a ;^ a made o„, ,He same.- and the defendant by i:'Z::iltl7^,'^t: LoT™"" T TT °' '" '^^""^^ ^"-^ *^^"-«*-- l'«'-en the tl hou ' • meSlf to'h "rr °''"^^ ""P^^'^"^"*' -<^ *^^* *« defendant uSt ralance of ™^^V^^' ^'^'''^ ^ -- -- due, and that It was due upon L there was an mqu.ry how the defendant made out that there was a balance, there were no particular mqumes in the bill as to the items, constituting the account from which the defendants made out that there was. a balance due to them ; but even where there has been such an inquiry, the court has gone the length of say- mg, that a schedule containing such items will be impertinent, if the items are set out with a minuteness not called for by the nature of the case. Thus, where the bill called upon a defendant to set forth an account of all and every the quanti- ties of ore, metals, and minerals, &c., dug in particular mines, and the full value thereof, &c., and the costs and expenses of working the mines, and the clear profits made thereby ; and the defendant put in a schedule to his answer, com- prising 3431 folios, wherein were set forth all the particular items of every trades- man's bill, connected with the mines ; the court held the schedule to be imperti- nent. So, where a defendant in his schedule, set out at length a bill of costs, with observations with reference to another bill delivered for the same business, _ it was held impertinent, although the bill called upon the defendant to set out how he computed and made out his demand, and all the particulars relating thereto, with interrogatories pointed to the particular items, and to a minute comparison of the two bills of cost. In like manner, it seems to be held, that, in the case of an executor called upon to account for his disbursements, it is not necessary to set out every particular item. It is difficult, however, to point out any precise rules with regard to what will be considered impertinent in a sched- ule ; much must depend upon the nature of each case, and the purposes for which the discovery is required ; the cases above referred to, and the others which may be found in the books, however, show, that even though the plaintiff, by the mi- nuteness of his inquiries, in some measure affords an excuse for the defendant setting forth a long and burdensome schedule, the court will not, unless in in- stances in which, from the nature of the case, great minuteness is required, permit a defendant to load the record with useless and impertinent matter, even though the introduction of such matter might be justified by the terms of the interroga- tories ; on the other hand, it is to be observed, that the court will not, where the defendant, in complying with the requisitions in the bill, has bond fide given the information required, although in a manner rather more prolix than might per- haps be necessary, consider the answer as impertinent ; for although prolixity sometimes amounts to impertinence, whether the court will deal with it as such, depends very much upon the degree in which it occurs." ' Cooper, Eq. PL 315 ; Mitf. Eq. PI. by Jeremy, 309, note (m) ; Hare on Dis- cov. 160-162 ; Gresley on Evid. 17, 18 ; Newman v. Godfrey, 2 Bro. Ch. R. 332 ; Jones V. Wiggins, 2 Younge & Jerv. 385. 706 EQUITY PLEADINGS. [CH. XVIII. part of the circumstances, or state a part of the conversation, he will be compelled to state the whole. ^ § 858. In respect to the necessity and propriety of making a discovery of documents and papers, called for by the bill, in the answer, a good deal of discussion has of late years been had ; and the subject does not seem free from all difficulties. It seems clear, that the plaintiff is not entitled, as a matter of right, to the dis- covery and production of any documents or papers called for by the bill, except those, which appertain to his own case, or the title made by his bill.^ Documents and papers, which wholly and solely respect the defendant's title or defence, he is not compella- ble by his answer to discover, or to produce.^ [But the plaintiff, in addition to a discovery of that which constitutes his own title, may seek a discovery for the purpose of repelling what he antici- pates will be the case set up by the defendant. But this does not extend to a discovery of the evidence in support of the de- fendant's case.*] [* § 858 a. But where the defendant was sued in equity, as surviving partner in a firm of commission wine merchants, and was required to set out in his answer a full account of the part- nership transactions, for the six months preceding the decease of the former partner, it was held not sufficient to set out the ac- counts, by way of reference to a book in which they were con.- tained, on the ground that the persons named were privileged customers ; and upon exceptions to the answer, upon that ground, it was declared, that the defendant ought to have set out the ac- ' Cooper, Eq. PI. 315 ; Cookson v. Ellison, 2 Bro. Ch. K. 252. " Wigram on Points of Diseov. 18, 19, 90, 111-146, 1st edit.; Id. 15, 16, 346-348, 363-365, 2d edit. See also Mitf. Eq. PI. by Jeremy, 9, 53, 54, 190, 191 ; Hardman v. EUames, 2 Mylne & Keen, 745 - 758 ; Hare on Diseov. 183 - 244; Ante, § 572 and note, § 575 and note; Combe v. Corporation of London, 1 Younge & Coll. New R. 631 ; Hunter v. Capron, 5 Beavan, K. 93. See At- torney-General V. Corporation of London, 12 Beavan, 8 ; 2 Mac. & Gor. 247. ' Ibid. In Champernoon v. Totness, 2 Atk. R. 112, Lord Hardwicke is re- ported to have said : " It is true, in general, that a person cannot compel another to set forth by what title, and under whom, he derives his estates, merely because his lands lie next to the plaintiff's. But where there is a dispute as to boundaries, or unity of possession, there a defendant must set forth in his'answer, how he is entitled, especially when the defendant has not thought proper to demur to this part of the bill." It may well be doubted, whether this statement is not too loose and inexact. * Attorney-General v. Corporation of London, 2 Mac. & Giord. 247. § 857 - 859.] ANSWERS. TOT count, in a schedule to" his answer, and that the objection that the names of the customers were privileged did not apply to such a case.^] § 859. But the difficulty, which has been most pressed, is, whether, when the defendant does answer and refer to documents and papers in his answer, he is bound to produce them for the inspection of the plaintiff, upon motion. The question (it has been said) may arise under three different aspects of an answer. (1.) The documents and papers may not be referred to in the answer ; but they may be admitted to be in the defendant's possession. (2.) They may be referred to in the answer, and not be admitted to be in the defendant's possession. (3.) Tliey may be in part set forth, or shortly stated in the answer, as in the defendant's possession, and referred to in the answer for greater certainty, when produced ; or, according to the common form, " as will ap- pear by the said documents and papers, to which, for greater cer- tainty, the defendant craves leave to r^er."^ In the first case, the question, whether the defendant shall produce the documents and papers, or not, is determined by considering, whether the doc- uments do, or do not, relate to the plaintiff's title. If they relate solely to the defendant's title, they will not be required to be pro- duced. If they relate to the plaintiff's title, they will.^ [But a defendant is not compelled to produce any document, which the bill does not distinctly allege relates to the matter in issue in the plaintiff's action.*] In the second case, the court cannot order the production of the documents and papers, unless they respect the plaintiff's title ; and unless, although stated not to be in the pos- session of the defendant, they happen to be in the hands of some person, over whom the defendant evidently has a control.'^ In the third case, it seems, that although the documents and papers solely respect the defendant's title, yet the court will require their pro- [* ' Pelford V. Kuskin, 1 Drew & Sm. 148. But we apprehend, that in such a case, unless the names of the customers were very essential, the court would not require them to be set out upon the schedule.] 2 Hardman v. EUames, 2 Mylne & Keen, 755, 756. " Hardman v. EUames, 2 Mylne & Keen, 756. * Peile V. Stoddart, 1 Mae. & Gord. 192. , . , , » Id 756 757. As to the answer where the papers cannot be found, or have parsed from the control of the respondent. Ellwand v. McDonnell, 8 Beavan, R. 14. 708 EQUITY PLEADINGS. [CH. XVIII. duction J for the defendant has, by his mode of referring to them, made them a part of his answer.^ ' Hardman v. Ellames, 2 Mylne & Keen, 757, 758 ; Ante, § 572, note, 574, note; Tison v. Tison, 14 Geo. 167;' Cooper, Eq. PI. 317, 318. This last point is the great question discussed in Mr. Wigram's Points of Discovery. He con- troverts the decision in his favor, in the case of Hardman v. Ellames, and insists, that the defendant is not, in such a case, bound to produce documents or papers, which respect his own title. See, especially, Wigram on Points of Discovery, 18, 19, 111, 113-146, 198-210, 212-215, 1st edit. See alsa Wigram on Discovery, 2d edit., p. 15, 16, 46-348, 363-365. The latter pages contain his conclusions upon the whole subject, in each edition. See Hare on Discovery, part 3, ch. 4, p. 183-244; where the same subject is largely discussed. See also Gresley on Evidence, 25-37. The doctrine thus stated, and especially the last point in Hatdman v. Ellames, was expressly affirmed by Lord Cottenham in Adams v. Fisher, 3 Mylne & Craig, R. 526, 548, 549. See also Neate v. Latimer, 2 Yonnge & Coll. 257, 264-362; S. C. 11 Bligh, E. 112, 156. [But Adams u. Fisher, was evidently disapproved of in the late case of Swinborne ®. Nelson, 15 Eng. Law & Eq. R. 572.] Mr. Wigram has commented on the case of Adams v. Fisher, in hia second edition, at large ; and the learned reader will (I trust) not deem the fol- lowing extract, although long, unacceptable. " In Adams v, Fisher, 3 Mylne & Craig, 526, the plaintiff (as personal representative of a deceased testator) stated by his bill, that the defendant Fisher had acted as his solicitor, and had, in that character, received various sums of money on account of the testator's estates, for which he had not accounted ; and that he had in his possession books and papers relating to the testator's estate ; and called for a schedule, and production of such books and papers, and also prayed an account. The defendant admitted collect- ing the estate of the testator, and the possession of books and papers relating to the estate, and set out a schedule of them, but insisted that he was not the plain- tiff's solicitor, but the solicitor of Fisher, who was the person employed by the plaintiff to collect the estate, and that he was accountable to Fisher only, and not to the plaintiff. Upon a motion for the production of the documents in the schedule, the Lord Chancellor refused the motion. In the course of the argument, the Lord Chancellor said : ' Suppose a bill is filed by a person claiming to be a creditor or legatee, or in any other assumed character, and the defendant denies, that the plaintiff is what he is alleged to be ; but states, on the contrary, that he is a perfect stranger, and denies, in short, everything, on which the plaintiff pro- ceeds ; but, not having protected himself by plea, he is obliged to answer ; is the plaintiff, as a matter of course, to ask for all the documents in the possession of the defendant, which relate to any of the matters introduced in the bill ? I only want to know, how far you carry the principle ; whether, as a mere matter of course, documents which, if the defendant's allegation is true, have nothing to do with proving the case made by the bill, are to be produced for the plaintiff's in- spection ? If a bill is filed by a person as a creditor, and he asks for all the title- deeds of the real estate, is the plaintiff entitled to see the title-deeds of a person's estate, because he calls himself a creditor, which the defendant denies that he is?' In giving judgment, his lordship said, ' Here the defendant has denied the plaintiff's interest ; he has, on the record, stated that, which, as it stands, in my es as § 859, 859 O.] ANSWERS. 7Qg [* &59a. In a somewhat recent case,i before Vice-Chancellor Kindersley, this question is carefully examined, and the principl opinion excludes the plaintiff from instituting this suit against him. As long that stands, I think the plaintiff is not entitled to see the documents.' In decid- ing, Tvhether a defendant shall be permitted by answer to protect himself against discovery, m cases like Adams v. Fisher, the court has four courses of practice open to It : 1. That of giving to the answer, to all intents and purposes, the force and effect of a demurrer, or plea; 2. That of giving to the plaintiff the same full right of discovery before the hearing, as he would be entitled to, if his right to relief were admitted or proved, and the only question between the parties was the amount of his demand ; 3. That of laying down some definite intermediate rule, by which the extent of a plaintiff's right to discovery, where by answer the defendant denies his right, may be determined ; and, 4. That of leaving the question undefined by any rule, except that which may be described as the 'discretion of the court.' With respect to the first of these courses, the author is not aware, that it has ever been held in judgment, or suggested in argument, that a defendant can have the same full benefit of a defence by answer, as by demurrer or plea, in -withholding discovery. In the case before suggested, of a bill for an account, if the defendant should plead the statute of limitations, or any plea in bar, he could not be obliged to give any answer to so much of the bill as related only to the plaintiff's original title to an account, for the plea would admit that. But if he relied upon the same defence by answer, he would clearly (it is conceived) be bound to give a full answer to so much of the bill as related to the plaintiff's original title ; for a defence by answer does not, even for the purposes of argument, admit any of the bill to be true, to which the admissions in the answer do not in terms apply. Again ; in the case before suggested, of a bill for an account, the amount of the plaintiff's demand would be part of the ' plaintiff's case.' If a release were pleaded, the plea would shut out all actual discovery, even an answer to the most simple and direct questions rele- vant to that amount. Now, it admits not of controversy, that if, in the same case, the defence be made by answer, the plaintiff may, by apt charges in his bill, com- pel the defendant to answer specific charges, stating or showing the amount of the plaintiff's demand; and it is equally clear, that a defendant, who, by means of such specific tliarges, has got an admission with which he is satisfied, may take a decree at the hearing of the cause for the amount appearing by the answer to be due to him, instead of going to an account before the master. This example alone is sufficient to prove, that the plaintiff's right to discovery, where the defence is by answer, attaches, to some extent at least, upon parts of the bill which a de- murrer or plea might wholly cover. The state of the record in Adams v. Fisher did not raise this question, and the language of the judgment appears to exclude the supposition, that the Lord Chancellor considered, that an answer could have, to all intents and purposes, the effect of a demurrer or plea. ' Now I took leave,' said the Lord Chancellor (3 Mylne & Craig, 546), ' to ask Mr. Anderdon, how far he carried the principle; and he very properiy limits it within its true bounds; that is, he admits, as to every document not necessary to make out the plaintiff's [* ' Howard v, Eobinson, 5 Jur. N. S. 136.] EQ. PL. 60 710 EQUITY PLEADINGS. [CH. XVm. discussed. The learned judge denied that the mere reference to a paper, by the defendant in his answer, gave the plaintiff any right equity, that the plaintiff is not entitled to see it. Whatever may make out the plaintiff's title he may have a right to see. The documents in question, however, are not to make out Adams's title to have the bill taxed, and the production of them could not possibly aid the assertion of the equity which Adams has asserted by his bill.' The second course above suggested, is, that, which the author had considered the rule of the court prior to the case of Adams v. Fisher, but which that decision has undoubtedly displaced. The two extreme courses of practice above suggested, appear, therefore, to be excluded. Before adverting to those which remain, the author ventures to suggest some difficulties in principle, con- venience, and authority, which may be experienced in upholding the decision in Adams v. Fisher, and by reference to which (if the decision itself be not affected by them) the future practice of the court must in a great degree be regulated. First, as to principle. If a defendant, who denies a plaintiff's right of suit, may, as in Adams v. Fisher, insist by answer that he is not bound to give discovery upon points subordinate to the question of the plaintiff's title (as the amount of his demand), some difficulty may reasonably be experienced in understanding, how demurrers or pleas, barring a plaintiff's right of suit, should in practice have obtained a place among pleadings in equity. A defendant, who demurs, indeed, may have the benefit of every objection, which is apparent upon the face of the bill, and a decision in favor of a demurrer, if submitted to by the plaintiff, will put a more speedy termination to a suit, than a defence by answer. But this possible advantage is purchased at the price of a premature discussion of the case, of which, if the demurrer should be unsuccessful upon argument, or the plaintiff be per- mitted to amend his bill, or if he should file a new bill, he will not fail to take advantage. The injurious consequences of such discussions have, almost univer- sally, induced counsel of the greatest experience to advise against the practice of demurring, except where it was of paramount importance to the defendant to avoid some of the discovery sought by the bill. The necessity for demurring could never have existed, if a defendant could by answer J>e protected against the discovery, which the demurrer would cover. A plea, which raises a question of law only, is in the same predicament as a demurrer. A plea, however, which raises a question of fact, is open to observations of a graver character, which would necessarily supersede its use, if a defendant might by answer protect him- self against discovery, save that, which may be necessary to try the plea itself. If the defendant has several grounds of defence, he will by plea lose the benefit of all, except that which his plea may raise, — whereas by answer he may have the benefit of them all. If circumstances exist, as in the case put by Lord RedeS" dale, by which the plaintiff's right to relief may be qualified, the defendant, by pleading, may lose the benefit of those qualifying circumstances, which an answer would save. And, if the ground of defence be single, the defendant will obtain no advantage by a plea, which an answer will not equally afford him, but will subject himself to the disadvantage of a premature discussion of his case, which has already been adverted to. Negative pleas were (although reluctantly) ad- mitted in equity pleadings, because, without such a mode of meeting a case, the defendant was without the means of protecting himself against discovery, although § ^^9 "'■^ ANSWERS. rj-^^ to examine it. The plaintiff, it was admitted, always had the right to the mspection of any paper in the defendant's possession he should deny the plaintiff's right of suit, _ a reason which negatives the suppo- sition, that an answer could have performed the same office. In the cases, which have most frequently^ if not exclusively, given rise to discussions upon the point decided m Adams v. Fisher, the discovery, against which the defendant has sought protection, has been discovery relevant only to the amount or extent of the plain- tiff s demand, the validity of the demand itself being denied by the answer. It IS certainly difficult to understand the principle, which, where the defence is by answer, denies the plaintiff's right to discovery material to the proof of the amount or extent of his demand. If the plaintiff may ask a decree at the hearing of the cause for payment of the amount admitted by the answer to be due to him, (Eowe V. Teed, 15 Ves. 375,) which unquestionably he may do, and if, for the purpose of getting that admission, he may compel the defendant to answer specific ques- tions applicable only to the amount of his demand, (a power respecting which no doubt can exist,) upon what principle shaU he be denied discovery, which may be necessary to enable him to suggest those questions to the defendant, by means of which alone he can obtain the admission, upon which a decree for immediate pay- ment of his demand may be founded ? The amount of the plaintiff's demand is a point in the plaintiff's case, upon which a decree may be made at the hearing. The admission of the defendant is evidence, upon which that decree may be founded. Discovery from the defendant as to the account sought by the bill, and documents in his possession relevant to it, are material evidence, by which the requisite admission may be obtained. Upon what principle can a plaintiff, who is permitted to make the immediate payment of his demand the subject of decree at the hearing of the cause, be deprived of any legitimate evidence by means of which the amount of that demand may be established ? The effect of denying the plaintiff a right to such discovery, is either to deprive him of his right to a decree for payment at the hearing, or to compel him to take that decree upon imperfect evidence. In the case of a bill of discovery in aid of a trial at law, where the judgment upon the right and upon the amount of it, are contempo- raneous, it would be difficult, if not impossible, to apply the rule. Nor is this the only difficulty in the case. The question, whether a defendant, who defends by answer, must not answer ' throughout,' is capable of being raised in one way only, namely, by exceptions to his answer. In the court of Chancery, this question always goes before a master in the first instance. Now, the court has never allowed the master to decide, how far a point suggested by the answer is good as a defence to the whole or part of a bill, nor could it with propriety do so. And, accordingly, as Lord Eldon has pointedly observed, the master is under a neces- sity of allowing the exceptions, and the court is afterwards required to reverse the master's judgment without being in a position to say, or meaning to say, that the master was wrong. The practice in the court of Exchequer differs from that of the court of Chancery upon the point last adverted to. In the Exchequer, exceptions to an answer come before the court in the first instance, but even in that court, authority has by no means recognized, to the full extent, the practice which the case of Adams v. Fisher, if followed up, must establish." Wigram on Discov. § 153-161, p. 89-98, 2 edit. 1840. See also the comments of Mr. 712 EQUITY PLEADINGS. [CH. XVni. which would assist his case, but had no right to see any such docu- ment tending merely to establish defendant's case. And it would seem, upon principle, that the usual reference in an answer to a written instrument, for greater certainty, did not oblige the party to produce it merely for the inspection and advantage of his oppo- nent, until the trial, and not then, unless he chose. The case of Hardman v. Ellames,^ is here examined, and, as far as this ques- tion is concerned, limited, or explained.] § 860. If the defendant in a case, seeking for the discovery of a correspondence, sets forth extracts of letters, and swears, that those are the only parts of the correspondence upon that subject, it is sufficient.^ And the practice is, when such a reference is made to extracts from books of accounts, to have those parts, which the defendant swears to be immaterial, left sealed iip.^ And al- though papers, specifically referred to and admitted to be in the defendant's custody, may be inspected by the plaintiif upon an order of the court, which will be granted in such case for that pur- pose ; * yet, if an answer only admits the execution of an instru- ment, craving leave to refer to it, when produced, it is not a suffi- cient ground to apply to the court for the production ; such an answer not admitting, that it is in the possession or power of the defendant.^ So, a qualified submission to produce a deed, if the court shall require it, does not fix the defendant, and deprive him of the discretion of the court, as to the propriety of the production of it.^ The effect of setting forth the contents of an instrument in an answer, and referring to the instrument for the truth of the statement, in effect, makes the instrument part of the answer.'' But it is very different, if a defendant only mentions the existence of a deed in his custody, which destroys the plaintiff's claim, (as a release,) without going on in the answer to describe it, or offer- ing to produce it ; for in such a case, the court will not order the production.^ Wigram on Neate v. Latimer, Wigram on Discov. § 312-315, p. 227-237 ; Id. § 437-440, p. 352-362, 2d edit. 1840; Ante, § 572 and note. [* ' 2 My. & K. 732. See also Adams v. Fisher, 3 My. & C. 526.] ' Campbell v. French, 1 Anst. R. 58; Cooper, Eq. PI. 317. ' Campbell v. French, 1 Anst. R. 58, 59 ; Cooper, Eq. PI. 317. * Cooper, Eq. PI. 317 ; Gardiner v. Mason, 4 Bro. Ch. R. 479. ^ Cooper, Eq. PI. 317, 318; Dawson v. Clarke, 18 Ves. 247. ' Cooper, Eq. PI. 317, 318 ; Atkyns v. Wright, 14 Ves. 211, 213. ' Cooper, Eq. PI. 317, 318. » Ibid. § 859 a - 862.] answers. 7]^3 § 860 a. If a defendant is called upon to set out a deed or other instrument, which he is bound to produce, in the words and fig- ures thereof, he should do so, or give some reason for not comply- ing with the requisition ; he may, however, avoid this by admit- ting, that he has the deed, &c., in his possession, and offering to give the plaintiff a copy of it. And it is always a proper precau- tion, where a defendant sets out any deed or other instrument in his answer, whether in hcec verba, or by way of recital, to crave leave to refer to it, as, by so doing, the defendant makes it a part of his answer, and relieves himself from any charge in case it should be erroneously set*out.^ § 861. An Answer may either contain matter which is scanda- lous, or it may contain matter which is impertinent ; or it may be objectionable on the ground of insufficiency, in not answering fully the statements and allegations of the bill.^ § 862. (1.) If an answer goes out of the bill to state anything scandalous or improper, the scandal will be expunged by order of court.^ Thus, where it was about bartering for boroughs, it was ordered to be taken off the file. So, if any matter, not material to the defendant's case, is stated, it will be deemed impertinent ; and such matter, upon application to the court, may also be expunged.* But as in a bill, so in an answer, nothing relevant can be deemed scandalous. It is not the nature of the matter in an answer, which makes it scandalous ; for, if the matter is relevant, according to the case made by the bill, whatever may be the nature of such matter, it is not scandalous ; and it may have an influence upon the decision of the suit, notwithstanding the nature of it.^ Even though the matter is in substance proper for the schedule ; yet the mode of expression may constitute scandal. As where the relator was a clergyman, and the defendant, in a schedule of accounts, made a charge for a sum of money paid by him for an order of filiation of a bastard child made upon the plaintiff; the court held, on an exception to. the master's report, that, although the defend- » 2 Daniell, Ch. Pr. 259. » Cooper, Eq. PI. 318 ; Com. Dig. Chancery, K. 2. Cooper, Eq. PI. 318 ; Mitf. Eq. PI. by Jeremy, 313. [And the introduction of scandalous and impertinent matter in the bill, does not authorize or justify similar matter in the answer, to meet such improper allegations in the bill. Lang- don V. Pickering, 19 Maine, 214.] « Cooper, Eq. PI. 318 ; Mitf. Eq. PI. by Jeremy, 313. ' Ibid. 60* 714 EQUITY PLEADINGS. [CH. XVm. ant might possibly be entitled to such a charge in an account ; yet that the mode of bringing it forward, and stating it, was intended , to drive the plaintifif out of his parish ; and it allowed the excep- tion accordingly.^ § 863. (2.) If an answer goes out of the bill to state some matter not material to the defendant's case, it will be deemed im- pertinent, and the matter, upon application to the court, will be expunged.^ So, as we have already seen, it is impertinence, where the pleading is stuffed with long recitals, or with long unnecessary digressions, or where a deed is stated, which is not prayed to be set forth .^ So, such objectionable matter may be contained in a schedule ; as, if a defendant sets forth a long account, where the Sill does not pray that an account may be set forth.* So, where a bill called upon the defendant, a solicitor, to set forth how he computed, and made oixt his demand upon the plaintiff, with all the particulars relating thereto, and contained interrogatories pointed to particular items, and a minute comparison of two bills of costs, which had been delivered; the court held a schedule to an answer, containing at full length a bill of costs and observa- tions, with reference to a bill formerly delivered for the same business, impertinent ; because the defendant, by referring to the bills delivered, would have fully answered all that interrogatory .^ A plaintiff may call for information of a very minute character, which the defendant is bound to afford, yet he may do it in such a way as to amount to impertinence, or prolixity amounting to im- pertinence.^ Irrelevant matter is of course impertinent in an answer, as it would be in a bill. But matter is not impertinent, if it is material, and properly arises in the events, which have occur- red before or after the filing of the bill, although not charged in the bill or any supplement thereto. Thus, for example, if the plaintiff dies, and a bill of revivor is brought, and in the interval 1 Cooper, Eq. PI. 318, 319 ; Mitf. Eq. PI. by Jeremy, 313-315. ■ ^ Mitf. Eq. PI. by Jeremy, 313. An allegation impeaching the 6ona fides and validity of a codicil to a will which had been already approved and allowed by a court having competent and exclusive jurisdiction over the probate thereof, was ordered to be expunged as impertinent and immaterial. Langdon v. Goddard, 3 Story, K. 13. = Ante, § 266, 267. * Cooper, Eq. PI. 318 ; Mitf Eq. PI. by Jeremy, 313. = Cooper, Eq. PI. 318, 319 ; Mitf Eq. PL by Jeremy, 313-315. " Marshall v. Mellersh, 6 Beavan, 558. §862-864] ;^s^,s, ^^^ the defendant has become bankrupt, he may alW that fact in hi, answer, although he_ admits the facts, which entttle to f^ "vo'. [Neither is it impertment to allege in answer to a bill for specific r:s::rerrntrr '' '"' ^°"''"^ " "^ - '--' ^^ § 864. (3.) If a plaintiff conceiyes an answer to be insufficient, he may take exceptions to such answer, which exceptions are always m wntmg, stating the parts of the bill, which the plaintiff alleges are not answered, and praying that the defendant may in such respects put in a further and full answer to the bill « Ex- ceptions must be signed by counsel, and are then delivered to the proper officer.* This must be done within a limited time, accord- ing to the course of the court, although upon application, further time will be allowed for the purpose, within certain restrictions.^ If there are two or more defendants to a bill, and the defendants answer separately, separate exceptions must be taken to each answer.6 But exceptions to a joint answer may be allowed as to one defendant only. Care must be taken in drawing exceptions, that all the points of insufficiency are stated ; for, after the answer to the exceptions, the plaintiff cannot add to his exceptions.'^ But, i • Langley v. Fisher, 10 Sim. R. 345 ; Ante, § 732. Post, § 868 a. ' Emery v. Pickering, 13 Simons, 583. ' Ibid. * Mitf. Eq. PI. by Jeremy, 315. ' Cooper, Eq. PL 318, 319 ; Mitf. Eq. PI. by Jeremy, 313-315. ' Cooper, Eq. PI. 319, 320 ; Mitf. Eq. PI. by Jeremy, 315-317. ' Mr. Daniell, on this subject, has made the following important practical re- marks. " Exceptions to an answer for insufficiency must be in writing, and care must be taken in framing then^, that they are properly entitled, otherwise they will be suppressed or taken off the file for irregularity. Thus, where exceptions having been allowed to an answer, the plaintiff obtained the usual order, ' that he might be at liberty to amend his bill, and that the defendant might answer the amendments and exceptions at the same time,' and amended his bill, whereupon the defendant put in a second answer, upon which the plaintiff took exceptions to the second answer, and entitled them ' Exceptions to the further answer to the original bill and to the answer to the amended bill,' the exceptions were held to be irregularly entitled, and ordered to be taken off the file, because new excep- tions cannot be taken to a further answer to an original bill. Formerly excep- tions for insufficiency appear to have set forth the tenor or scope of the bill, and the substance of the answer, and then to have proceeded to point out particularly the points, in which the answer was considered defective ; but, according to the modern practice, the tenor of the bill and substance of the answer are omitted, and the plaintiff proceeds at once to point out specifically the parts of the bill or 716 EQUITY PLEADINGS. [CH. XVIH. upon a clear mistake, as where the plaintiff sent to his counsel the wrong draft of the bill, or where there were two causes, and the exceptions were taken from one bill, instead of the other, the court having permitted an amendment to be made of the excep- tions.^ § 865. If a defendant conceives his answer to be sufficient, or if, for any other reason, he does not submit to answer the matter the interrogatories, which are unanswered, by separate exceptions, applicable to each part. This is in compliance with Lord Bacon's Orders, which direct that ' no reference shall be made for insufficiency of an answer, without showing some particular point of the defect, and not upon surmise of insufficiency in general.' And it has been held, that where a plaintiff complains, that a particular interrog- atory in his bill has not been answered, he must state the interrogatory in the terms of it, and not throw upon the court the trouble of determining whether the exprtssions of the exceptions are to be reconciled with the interrogatory. Where, however, an exception did not follow the words of the interrogatory, but the de- fendant had submitted to answer, and put in a further answer, which was referred upon the same exceptions, it was considered that he came too late with his objec- tion to the form of the exceptions. And so, where a plaintiff, in his exceptions, went beyond the allegations in the bill, and upon a reference, the master reported the answer insufficient, whereupon the defendant submitted to the report, and put in a further answer, which the master also reported insufficient, the defendant, upon exceptions to the second report, was held to have precluded himself, by putting in a further answer, from objecting to the form of the exceptions. He ought to have excepted to the first report. It has been before stated, that in cases of exceptions for impertinence, one exception cannot be partially allowed ; and that, therefore, if part of an exception be good, and the rest bad, the whole exception must be overruled. This, however, is not the case with regard to ex- ceptions for insufficiency, which may be allowed in part and overruled as to part. jDare must be taken, in drawing exceptions, that no mistakes happen therein, for after they have been delivered no new exception can regularly be added. Cases, however, have occurred, where the amendment of exceptions has been permitted on the ground of mistake ; as where the plaintiff's solicitor, for the purpose of in- structing his counsel in drawing the exceptions, sent him, by mistake, the original draft of the bill, instead of another draft from which the bill was engrossed, which differed materially, and the mistake was not discovered till it was too late to recti- fy it. In Northcote v. Northcote, 1 Dick. R. 22, it is stated that liberty was given to amend exceptions, after arguing them ; it does not, however, appear upon what ground such liberty was given. Exceptions for insufficiency, as well as those for impertinence, must have the signature of counsel, although there is no positive order requiring it, and a set of such exceptions, not signed by counsel, were for that reason taken off the file, although the defendant had taken an office copy of them, and the plaintiff had obtained an order of reference." 2 Daniell, Ch. Pr. ch. 15, § 2, p. 305-307. • Cooper, Eq. PI. 319, 320 ; Mitf. Eq. PI. by Jeremy, 315 - 317. §864-866.] ANSWERS. ^^^ contained in the exceptions, one of the masters of the court is directed to look into the bill, the answer, and tlie exceptions, and certify whether the answer is sufficient in the points excepted to or not.i If the master reports the answer insufficient in any of the points excepted to, the defendant must answer again to those parts of the bill, in which the master conceives the answer to be insufficient ; unless, by excepting to the master's report, the defendant brings the matter before the court, and there obtains a different judgment.^ But if a defendant has insisted on any mat- ter, as a reason for not answering, although he does not except to the master's report, yet he is not absolutely precluded from insis1> ing on the same matter in a second answer, and taking the opinion of the court, whether he ought to be compelled to answer further to that point, or not.^ If, after the plaintiff has taken exceptions, he obtains the usual order to amend his bill, and that the defendant may answer the exceptions and amendments together, he cannot afterwards take a new exception, as to anything in the original bill. But he must go before the master upon the old exceptions, as they apply to the original bill, and upon the new exceptions, as to the new matter introduced by the amendments ; which, how- ever, the master may co;isider with reference to such parts of the original bill, as apply to them.* § 866. Where a defendant demurs to any part of the discovery sought by a bill, and answers likewise, the plaintiff cannot take exceptions to the answer before the demurrer has been argued.^ If he does, it will have the effect of admitting the validity of the demurrer ; the foundation of which rule seems to be, that it is impossible to determine, whether the answer is sufficient or not, unless the demurrer is admitted to be good.^ But a plaintiff has been permitted in such case to withdraw the exceptions, paying the costs, without prejudice to filing exceptions, if the demurrer should be allowed.'^ It is the same, where the defendant pleads to part of the discovery, and answers likewise.^ But if a demurrer or a plea is only to the relief prayed by the bill, and not to any part of the discovery, the plaintiff may take exceptions to the an- swer before the demurrer or the plea is argued.^ If a plea or a ' Cooper, Eq. PI. 319, 320; Mitf. Eq. PI. by Jeremy, 315-817. s Ibid. ' Ibid. * Cooper, Eq. PI. 320, 321 ; Mitf. Eq. PI. by Jeremy, 316, 317. ' Ibid. • Ibid. ' Ibid. » Ibid. » Ibid. 718 EQUITY PLEADINGS. [CH. XVIH. demurrer is filed without any answer, and is overruled, the plain- tiff need not take exceptions ; but the defendant must answer the whole bill, as if no defence had been made. But if a plea or a demurrer is accompanied by an answer to a single fact, even to the denial of combination, and the plea or the demurrer is overruled, the plaintiff must except to the answer, as insufficient.^ § 867. Scandal and impertinence in an answer must be dis- posed of, before its sufficiency can be considered.^ A reference, therefore, of a defendant's answer for impertinence, is good cause against dissolving an injunction, which the plaintiff has obtained.^ A reference of an answer for impertinence, is waived by a subse- quent reference for insufficiency.* After a reference for insuffi- ciency, an answer cannot be referred for impertinence ; but it may for scandal.^ Not only the plaintiff, but any of the defendants, may refer an answer of another defendant for scandal against them.^ But after a replication has been filed by the plaintiff to an answer, he cannot, in general, either refer it for impertinence, or take exceptions on the ground of its insufficiency.'^ § 868. A further answer is in every respect similar to, and, in- deed, is considered as forming part of, the first answer.^ So, an answer to an amended bill is considered as part of the answer to the original bill.^ Therefore, if the defendant, in a further an- swer, or in an answer to an amended bill, repeats anything con- tained in a former answer, the repetition, unless it varies the defence in point of substance, or is otherwise necessary, or expe- dient, will be considered as impertinent.^" And if, upon a refer- ence to a master, such parts of the answer are reported to be impertinent, they will be struck out as such, with costs, which, in strictness, are to be paid by the counsel, who signed the an- swer.^^ § 868 a. Hitherto we have been principally considering answers to original bills. But similar considerations will generally apply to answers to supplemental bills. In cases of bills of revivor, the ^ Cooper, Eq. PI. 321 ; Mitf. Eq. PI. by Jeremy, 317. = Cooper, Eq. PL 321, 322. ■ Ibid. * Ibid. <■ Ibid. ° Ibid. ' Ibid. ' Ibid.; Mitf. Eq. PI. by Jeremy, 318. ' Ibid. '" Mitf. Eq. PL by Jeremy, 318 ; Cooper, Eq. PL 322 ; Smith v. Serle, 14 Ves. 415. " Ibid. §866-868 6.] ^nswees. ^^9 simple fact of the title to revive is ordinarily that alone, which denied inll " *'?'"'"' ^"^'"^^"'^ ^^ ^^^^ ^^-"ed o denied in the answer. But in cases of bills of revivor, (and prob- ably the same rule applies to supplemental bills,) if any new event has occurred, which changes the predicament of the defendant, as to his rights or title in the suit, he may by his answer not only aiiswer the facts charged in the bill of revivor or supplement, but also state such facts or events as change his own position in the suit. Thus, for example, the defendant to a bill of revivor may answer not only admitting the fact which entitles the plaintiff to revive, but that since then he has himself become a bankrupt.^ § 868 b. Upon a somewhat similar ground, where a bill required a defendant to answer as to his knowledge, remembrance, infor- mation, and belief of certain facts charged in the bill, and the de- fendant, in his answer, stated that he had no knowledge, informa- tion, and belief, that the facts stated were not true ; upon an ex- ception taken that the defendant had not said whether he believed them to be true, it was held that the exception was well taken ; for his belief might be material in the case.^ ' Langley v. Fisher, 10 Sim. K. 345 ; Ante, § 863. ^ Ante, § 855 a; Brooks v. Byam, 1 Story, R. 296, 301. In this case, the court said : " Nothing is more clear in principle, than the rule, that in the case of an interrogatory, pertinent to a charge in the bill, requiring the defendant to answer it ' as to his knowledge, remembrance, information, and belief,' (which is the usual formulary,) it is not sufficient for the defendant to answer as to his knowledge; but he must answer, also, as to his information and belief The plain reason is, that the admission may be of use to the plaintiff as proof, if the defendant should answer as to his belief in the affirmative, without qualification. Thus, although a defendant should state, that he has no knowledge of the fact chained ; if he should also state, that he has been informed, and believes it to be true ; or simply, that he believes it to be true, without adding any qualification thereto, such as that he does not know it of his own knowledge to be so, and,^ therefore, he does not admit the same, it would be taken by the court, as a fact admitted or proved ; for the rule in equity generally, (although not universally,) is, that what the defendant believes, the court will believe. The rule might, per- haps, be more exactly stated, as to its real foundation, by saying, that whatever allegation of fact the defendant does not choose directly to deny, but states his belief thereof, amounts to an admission on his part of its truth, or, that he does not mean to put it in issue, as a matter of controversy in the cause. But a mere statement by the defendant in his answer, that he has no knowledge that the fact is as stated, without any answer as to his belief concerning it, will not be such an admission as can be received as evidence of the fact. Such an answer 720 EQUITY PLEADINGS. [CH. XVIH. § 869. In the next place, let us proceed to the consideration of the form of an answer. An answer always begins with its title, is insufficient ; and, therefore, the defect properly constitutes a matter of excep- tion thereto, since it deprives the plaintiff of the benefit of an admission to which he is justly entitled. However, courts of equity do not, in this respect, act with rigid and technical exactness; as to the manner in which the defendant states his belief, or disbelief, if it can be fairly gathered from the whole of that part of the answer, what is, according to the intention of the defendant, the fair result of its allegations. It is obvious, that in answers as to the information and belief of the defendant, there may be, and, indeed, ordinarily will be, partial admissions and partial denials, of every shade and character, some of which may be delivered in terms of great ambiguity and uncertainty, and some mixed up with various qualifications and attending circumstances. No general rule, there- fore, can be laid down, which will govern all the different classes of cases which may thus arise as to the sufficiency or insufficiency of an answer in this respect. A man may have an undoubting belief of a fact, or he may disbelieve its exist- ence, or he may believe it highly probable, or merely probable, or the contrary, or he may have no belief whatsoever as to it. In each of these cases, he is bound to answer conscientiously, as to the state of his mind, in the matter of his belief; and, if he does, that is all which a court of equity will require of him. If a man truly states, that he cannot form any belief at all respecting the truth of the fact or information, that is sufficient, and it puts the plaintiff upon proof of it. If, on the other hand, the defendant should state, (as in the present case the defendant does in effect state,) ' that he has no knowledge, information, or belief, that the fact or information inquired about is not true,' or if he states, (as in the present case,) that he has been informed by a party, and verily believes, that such party did not possess any knowledge, information, or belief of the fact, which the interrogatory points out ; in each of these cases, it seems to me, that the answer, if expressive of the true state of mind of the defendant, might, at least for some purposes, be held sufficient. But then, if such language were unaccompanied by any other qualifications, or explanations, I should understand, that the defendant did mean to assert his belief of the truth of the information or statement of fact, because, if he had no knowledge, information, or belief, that it is not true, he must be presumed to give credit to it ; and if he did not intend so to be under- stood, it would be his duty to say, in express terms, that he had no belief about the matter ; and he ought not to be allowed to shelter himself behind equivocal, or evasive, or doubtful terms, and thereby to mislead the plaintiff to his injury. And this leads me to remark, and it is the real and only point of difficulty which I have felt upon the exception, whether, although the plaintiff may agree to take and accept such an admission, interpreting it as affirmative of the defendant's belief, if in that sense it would be beneBcial to himself, he is positively bound to receive it, when it is clearly susceptible of a different, or even of an opposite inter- pretation which may affect the nature and extent of his proofs at the hearing of the cause. Upon full reflection, 1 think that he is not positively bound to receive it, although certainly I should interpret it as an affirmative, if it would be favor- able to the plaintiff; but he has a right to require, that the defendant should state in direct terms, or, at least, in unequivocal terms, either that he does beUeve, or § 869, 870.] ^^3WERS. ^2^ specifying of which of the defendants it is the answer and the swer. Two or more persons may join in the same answer and where thejr interests are the same, ar.d they appear by th 'same ohotor, they ought to do so, unless some good reason exists fo h miTr' T"fV' '"'«*^^^-i- tl- nonjoinder may affect W h f T "^ '^'' ''''' '' ''" '"^^ '^^^""g-^ I' may there-, fore be stated as a general rule, that the defendants should answer jomtly, unless their titles are different; although upon bills by rectors an.d vicars for tithes, it has been allowed to the defendants to split their titles in their defence.3 An answer, purporting to be the jomt answer of five defendants, cannot be sworn to as the an- swer of three only ; but it ought to be amended.* An answer misnaming the plaintiff, is considered as no answer, and the de^ fendant therefore is not bound by it. If there is an immaterial mistake m a name, the answer may be taken off the file, and re- sworn.5 But where there is a misnomer of the plaintiff in the cause, and a proper answer is afterwards put in, the first answer will be ordered to be taken off the file, by the description of a paper writing, purporting to be an answer.^ § 870. An answer is headed by a title, " The answer of A. B., the defendant, to the bill of complaint of C. D., the complainant." ^ After the title of the answer, it proceeds to reserve to the defend- ant all advantages, which might be taken by exception to the bill ; a form, which is probably intended to prevent a conclusion, that the defendant, having submitted to answer the bill, admits every- thing, which by his answer he docs not expressly controvert, and especially such matters, as he might have objected to by demurrer that he does not believe, the matter inquired of, or that he cannot form any belief, or has not any belief concerning the matter, and according as the answer shall be the one way or the other, that he calls upon the plaintiff for proof thereof, or he admits it, or he waives any controversy about it." 2 Daniell, Ch. Pr. 257, 402 ; Gresley on Evid. 19, 20; Potter v. Potter, 1 Ves. 274; Cooth v. Jackson, 8 Ves. 37, 38 ; Ante, § 854. ' Cooper, Eq. PI. 323 ; Mitf. Eq. PI. by Jeremy, 313, 314 ; Griffith v. Wood, 11 Ves. 62. * 2 Daniell, Ch. Pr. ch. 15, § 2, p. 265, 266; Van Sandau v. Moore, 1 Russ. K. 441. " Cooper, Eq. PL 323 ; Mitf. Eq. PI. by Jeremy, 313, 314 ; Griffith v. Wood, 11 Ves. 62. « Ibid. ' Ibid. ' Ibid. ' 2 Daniell, Ch. Pr. ch. 15, § 2, p. 266. EQ. PL. 61 722 EQUITY PLEADINGS. ' [CH. XVIH. or by plea.^ It will not, however, in general, have that effect, as has been already mentioned.^ The substance of the answer, ac- cording to the defendant's knowledge, remembrance, information, and belief, then follows, in which the matter of the bill, with the interrogatories founded thereon, are answered one after the other, together with such additional matter, as the defendant thinks ne- ^cessary to bring forward in his defence, either for the purpose of qualifying, or of adding to, the case made by the bill, or of stating a new case on his own behalf.^ This is followed by a general trav- erse or denial of all the unlawful combination charged in the bill, and of all other matters therein contained.* Where, however, such a general traverse is omitted at the end of an answer, it has been held, that the answer, notwithstanding, is good ; and it is not to be suppressed as improper.^ This general traverse was first in- troduced in ancient times, when the defendant used only to set forth his case in the answer, without answering every clause in the bill ; and for this reason, it became the practice for the defendant to add, at the end of the answer, this general traverse. -But, al- though it is the practice now to answer every clause in the bill, and a general traverse therefore seems impertinent, and has been held to be unnecessary ; yet this formulary is still continued in answers.^ § 871. The answer of an infant being expressed to be made by his guardian, the general reservation at the beginning, the denial of combination, together with the general traverse at the conclu- sion, common to all other answers, are omitted.'^ The reason of this is, that an infant is entitled to every benefit, which can be taken by exception to a bill, although he does not make such reser- vation, or expressly make the exception. He is also considered as incapable of entering into the unlawful combination ; and his an- swer cannot be excepted to for insufficiency ; nor can any admis- • Cooper, Eq. PI. 323 ; Mitf. Eq. PI. by Jeremy, 313, 314 ; Griffith v. Wood, 11 Ves. 62; Post, §872. '*Ibid. ; Ante, § 694. ' Cooper, Bq. PI. 323-325; Mitf. Eq. PI. by Jeremy, 313, 314, 315. * Ibid. ' Ibid. « Ibid. ' Ibid. In the case of infants, it has been erroneously thought, that it is merely necessary to put in what is called a common infant's answer, submitting his rights to the protection of the court'; but this is not so. Lane v. Hardwicke, 9 Beavan, R. 148. ^ 8T0, 871.] Aj^swERS. 723 sion made by him be binding.^ Eveu the admission in a deceased heirs answer of the will of the testator, has been held not to be binding upon the infant heir, who has succeeded him.^ If a de- ' Ibid. ; Miller v. Miller, 1 Sandford, R. 103 mg form, taken from Barton's Smt in Equity, p. 115-121, ;vill explain fullv this and the succeeding passages. It is an answer by the executors of a will to"a bill for a legacy, admitting assets, &c. ; and is in the most simple form, which can ordmanly arise in practice. " The joint and several answers of Edward Willis and Wdham Willis, two of the defendants to the bill of complaint of James Willis, an infant, by John Willis, his father and next friend, complainant. These defend- ants now, and at all times hereafter, saving and reserving to themselves all man- ner of benefit, and advantage of exception, to the many errors and insufficiencies m the complainant's said bill of complaint contained, for answer thereunto, or unto so much, and 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 the complainant's 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 the complainant's said bill mentioned and set forth ; and did thereby bequeathe to the complainant, James Willis, such legacy of £ 800, in the words for that purpose mentioned in the said bill, or words to a like purport or effect. And these de- fendants, further answering, say, they admit, that the said testator, Thomas Atkins, did by such will appoint these defendants, Edward Willis and William Willis, executors thereof; and that the said testator died on or about the 20th day of December, 1 748, without revoking or altering the said will. And these defend- ants, further answering, say, that they admit, that they, these defendants, some time afterwards, to wit, about the month of January, 1 750, duly proved the said will in the Prerogative Court of the Archbishop of Canterbury ; and took upon themselves the burden of the execution thereof; and these defendants are ready to produce the said probate, as this honorable court shall direct. And these de- fendants further answering, admit, that the said complainant, James Willis, by his said father and next frien'd, did several times, since the said legacy of £ 800 be- came payable, apply to them, these defendants, to have the same paid or secured for the benefit of the said complainant, which these defendants declined, by reason, that the said complainant was, and still is, an infant, under the age of twenty-one years. Wherefore these defendants could not, as they are advised, be safe in making such payment, or in securing the said legacy in any manner for tlie benefit of the 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 of the said testator, they possessed themselves of the real and per- sonal estate, goods, chattels, and effects of the said testator to a considerable amount; and they do admit, that assets of the said testator are come to their hands suflScient to satisfy the complainant's said legacy, and which assets they admit to be subject to the payment thereof, and are willing and desirous, and do hereby offer to pay the same, as this honorable court shall direct, being indem- nified therein. And these defendants deny all unlawful combination and confed- eracy in the said bill charged ; without that, that any other matter or thing mate- 724 EQUITY PLEADINGS. [CH. XVHi: fendant is reduced to a state of second childhood by age and infir- mity, the course is for him to answer by a guardian, in the same manner as an infant.^ The answer of an idiot or a lunatic, is also expressed to be made by liis committee, as his guardian, or by the person appointed as his guardian, by the court to defend the suit.^ And a plaintiff cannot except for insufficiency to the answer of a defendant of unsound mind, against whom a commission of lunacy has not issued, answering by liis guardian.^ § 872.- The form of the answer, as well as tlie protestation, seems to have been borrowed from the Civil Law ; for, in the Civil Law, the form of the answer begins, Bub protestatione de nimia generalitate, ineptiditudine, obscuriiate, nuUif.ale, et indebita spe- cificatione dicii libelli. The oath, too, administered in case of an answer, was, de sciential in his quw proprium tuum factum decer- nunt, et de credibilitate in facto alieno.^ § 873. A married woman generally answers with her husband ; but sometimes she answers separately by order of the court ; In which case she answers by her next friend.^ Where a marriage has clearly taken place only to defraud creditors, a feme covert inay be made to answer, as if she were sole.^ And it has been held, that where a husband and wife have answered jointly, and the bill is afterwards amended, and then the husband goes abroad, the wife remaining in this country, and being the material de- fendant, there must be an order upon her answer separately, or f rial or necessary for these defendants to make answer unto, and not herein, or hereby, well and sufficiently answered unto, confessed, or avoided, traversed, or denied, is true to the knowledge or belief of these defendants. All which matters and things these defendants are ready to aver, maintain, and prove, as this honor- able court shall direct ; and humbly pray to be hence dismissed with their reason- able costs and charges, in that behalf most wrongfully sustained." See also forms in Van Heythuysen's Eq. Drafts. 385-414. ' Cooper, Eq. PI. 324. ' Ibid. ' Micklethwaite v. Atkinson, 1 Coll. R. 173. * Gilb. Eor. Rom. 90. Mr. Daniell says : " The form of the oath or affirmation administered to a defendant on putting in his answer, is as follows : — ' You swear (or solemnly affirm), that what is contained in this your answer (or plea and an- swer), as far as concerns your own act and deed, is true to your own knowledge, and that what relates to the act and deed of any other person or persons, you believe to be true.' " 2 Daniell, Ch. Pr. ch. 15, § 2, p. 270. = Cooper, Eq-. PI. 325 ; Ante, § 71. " Ibid. §871-875.] • ANSWERS. ^25 it will not be any contempt of the court in her, if she refuses answer to § 8.4 An answer is always under oath, unless the plaintiff chooses to dispense with it; and tlien the court will oLZ answer of the defendant to be taken without oath.^ If, indeed he defendant is entitled to the privilege of peerage, or' he s a lord of parliament (which, since the union with Ireland, has been held to extend to Irish peers,) or if the defendant is a cor- poration aggregate, no oath is required; and in such first-men- tioned case, the answer is upon the honor of the defendant and in the last under the seal of the corporation.^ A Quaker is al- lowed to put in his answer upon his solemn affirmation and dec- laration. Where a defendant files an answer as a Quaker with- out oath, he undertakes that he is a Quaker; so that, if he should be indicted for perjury upon it, he will not be permitted to con- tradict the assertion.* A Jew is sworn on the Pentateuch, and generally with his hat on.s In the case of a foreigner, not ac- quainted with the English, an order must be obtained for an in- terpreter ; and the answer being engrossed in a foreign language, a translation of it must be made by the interpreter, and such translation must be annexed to it.^ The foreigner must be sworn to his answer. The interpreter attending is previously sworn to interpret truly, and conveys to tlie foreigner the language of the oath, and at the same time he swears to the translation as just and true to the best of his ability.^ § 875. When an oath is not required, generally there must be ' Cooper, Eq. PI. 325 ; Thorold v. Hay, 1 Dick. K. 410 ; Tarleton v. Dyer, 10 Ves. 442. " Cooper, Eq. PI. 325, 326. The 59tli Rule of the Equity Rules of the Su- preme Court of the United States, January Term, 1842, declares: Every defend- ant may swear to his ansWer before any justice or judge of any court of the United States, or before any commissioner appointed by any Circuit Court to take testi- mony or depositions, or before any master in chancery appointed by any Circuit Court, or before any judge of any court of a State or Territory." 1 Howard, R. Introd. 59 ; 17 Peters, R. App'x, 71. « Co6per, Eq. PI. 325, 326. 4 Ibid. ' Ibid. « Ibid. The rule has been stated as in the text ; but Vice-Chancellor Knight Bruce has said that he was not aware of any rule that a foreigner, however igno- rant of the English language, is bound to put an answer on the file in his own language. St. Katherine Dock Co. v. Montagu, 1 CoUyer, R. 96. '"ibid. 61* 726 EQUITY PLEADINGS. • [CH. XVIII. the signature of the defendant to the answer.^ But, where the defendant to a bill of foreclosure was aji officer in the army, and had gone abroad under orders, immediately after the service of the subpoena and appearance, and before he had time to put in his answer, the answer was, by the consent of parties, ordered to be received without signature.^ The same order was made where the defendant was appointed to a judicial situation in the East Indies, and in the hurry of going abroad had forgotten to sign his answer.^ So, where a person abroad had given a general power of attorney to another person, residing here, to defend suits, &c. in his absence, the answer was directed to be received without any signature at all, rather than to take the signature of any other person for the defendant.* Upon the same principle, where a father had authority to act for his two sons, who were out of the jurisdiction, their answers were ordered to be taken without any oath or signature. But a similar permission was refused in the case of a mere trustee, who was in such an infirm state, both of body and mind, as to be wholly incapable of putting in her an- swer.^ The proper course in such a case would be, to appoint a guardian to put in the answer ; for it is much better, where there is no commission of lunacy, to throw around a person, under such circumstances, the protection of some other person, who is capa- ble, than to let the defendant answer at all hazards, without any oath or signature.^ § 875 a. We have already seen, that an answer is generally re- quired to be under oath, unless it is dispensed with by the plain- tiff;^ and that when under oath, if it is responsive to the allega- tions in the bill, it is evidence for the defendant, and as evidence it will prevail, unless overcome by the testimony of two witnesses, or of one witness and clear corroborating circumstances.^ But suppose an oath to an answer is dispensed with, and yet it is re- , sponsive to facts charged in the bill, and which the defendant is required to answer, what is the effect of the answer when given, it not being under o.ath ? This point does not seem definitely ' Cooper, Eq. PI. 326, 327 ; v. Lake, 6 Ves. 171 ; v. Gwillim, 6 Ves. 285 ; Bayley v. De Walkiers, 10 Ves. 441 ; Harding v. Harding, 12 Ves. 159 ; Wilson V. Grace, 14 Ves. 172. ^ Cooper, Eq. PI. 326, 327. ' Ibid. * Ibid. <■ Ibid. ' Ibid. ' Ante, § 874. Ante, § 849 a. §875 -875 a.] answers. ^27 settled.- It may perhaps be true, that it is not entitled to all the pnvileges of an answer under oath. But it is by no means clear that It IS not evidence in favor of the defendant as to all facts which are not fully disproved by the other evidence and circum- stances m the case ; and that it ought not to prevail where the other evidence is either defective, obscure, doubtful, or unsatis- factory.i And it may well be suggested, whether the plaintiff has a right to dispense with the oath, and yet to make the answer evidence m his own favor as to all the facts, which it admits, and exclude it as evidence as to all the facts, which it denies.^ 1 Lord Eldon, in Curling v. Townshend, 19 Ves. R. 628, 629, said : " The an- swer to the original bill was put in without oath or attestation of honor; and was accepted without either of those sanctions ; but my opinion is, that with regard to a question of this nature, the defendant gives the same authority to the court to look at the circumstances, denied or admitted in the answer so put in, for the purpose of administering civil justice between the parties, as if it was put in upon the attestation of honor, or upon oath.'' * In the case of the Union Bank of Georgetown v. Geary, 5 Peters, R. 99, 110 -112, Mr. Justice Thompson, in delivering the opinion of the court, said : " It is certainly a well-settled rule, that on a bill praying relief, when the facts charged in the bill, as the grounds for obtaining the decree, are clearly and positively denied by the answer, and proved only by a single witness, the court will not de- cree against the defendant. And it is equally well-settled, that where the witness on the part of the complainant is supported and corroborated by circumstances sufficient to outweigh the denial in the answer, the rule does not apply. 9 Cranch, 160 ; 3 Condens. Rep. 325. What are the circumstances in this case to meet and outweigh the denial in the answer ? It is to be borne in mind, that the bill does not charge the agreement to have been made with the bank, but with their attor- ney. The denial by the bank is not therefore of any matter charged to have been within their own knowledge. They could, therefore, only speak of their belief, or from information received from their attorney, and not from their own knowledge of the transaction. The denial of their ever having authorized or directed their attorney to hold out any inducements to the complainant to confess judgment, or to make to her any such promise as is set forth in the bill, is not in answer to any allegation in the bill. The bank is not charged with having spe- cially authorized or directed the agreement to be made. But it is charged as the act of their attorney ; and whether this was within the scope of his authority as attorney in the suit, will be hereafter noticed. There are other circumstances which go very far to take this case out of the application of the rule which re- quires corroborating evidence to support the testimony of a single witness against the answer. This is an injunction bill, filed upon the oath of the complainant. An answer in all cases, according to the course and practice of courts of chan- cery, must be sworn to ; unless dispensed with by order of the court under special circumstances. In the present case, the answer being by a corporation, it is put in under their common seal, unaccompanied by an oath. And although the rea- 728 EQUITY PLEADINGS. [CH. XVffl. [* § 875 b. It seems to be settled in the practice of some of the American states, that although the statute allow the plaintiff, in a bill in equity, to dispense with the oath of the defendant, in his answer ; and that in such cases the answer will be sufficient in all ordinary cases, without oath*; yet it will be requisite, in order to sustain a motion to dissolve an injunction, that the answer should be sworn to.^ And where the defendant in a bill to redeem in his answer expressly wa,ives all objection to plaintiff redeeming upon the payment of such sum as shall be found due, he cannot after- wards insist that the mortgage had been foreclosed before the com- mencement of the suit.2 § 875 c. There can be no question, upon principle, it would seem, that the answer of the defendant not upon oath, although responsive to the bill, is to be treated merely in the nature of a plea of denial, by way of special traverse. And it would be of the same effect precisely, if it were a mere general issue. We some- what marvel that any judge, or text-writer, could ever have enter- tained any serious doubt in regard to this. It must arise from the general practice of courts of equity not to decree relief upon a bill which was flatly denied by the respondent upon oath, and only sustained by the oath of one witness. It consequently becomes, son of the rule, which requires two witnesses, or circumstances to corroborate the testimony of one, to outweigh the answer, may be founded in a great measure upon the consideration that the complainant makes the answer evidence by calling for it ; yet this is in reference to the ordinary practice of the court, requiring the answer to be on oath. But the weight of such answer is very much lessened, if not entirely destroyed, as matter of evidence, when unaccompanied by an oath ; and indeed we are inclined to adopt it as a general rule, and that an answer not under oath is to be considered merely as a denial of the allegations in the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegations." Mr. Chancellor Walworth, in Smith v. Clarke, 4 Paige, R. 368, held an answer not sworn to not to be of any weight as evidence in the case. Can the oath of the defendant to his answer be dispensed with by the plaintiflf without the consent of the court ? See 1 Grant's Pract. p. 107, edit. 1820. Mr. Daniell, on this subject, says : " An answer put in without oath or attestation of honor, and accepted without either of those sahctions, gives the same authority to the «ourt to look to the circumstances denied or admitted in the answer so put in, for the purpose of administering civil justice between the pafties, as if it was put in upon attestation of honor or upon oath. It seems, however, that no exceptions can be taken to an answer so put in." 2 Daniell, Ch. Pr. ch. 15, § 2, p. 272. [* ' Mahaney v. Lazier, 16 Md. 69. " Strong V. Blanchard, 4 Allen, 538. § 875 6 - 877.] replications and rejoinders. 729 almost matter of course, to allow that extent of force to the an swer, per se, not reflecting always, whether it is to tl nswer t testm.ony, or as a pleading. But a moment's considerat'oT mu convmce al , that this effect results from the answer, as couMe Uac^d rt * " "'°?" ^^"^ ^™^"^' ^^-* - ^^^ - tot attached to the answer of a defendant, as executor, or in an ofii- cial capacity, or as agent of a corporation, or in any form, where not purporting to be made upon personal knowledge. This view is strongly confirmed by the opinions referred to in the note.i] § 876. An answer must be signed by counsel, unless it is taken by commissioners, in the country, under the authority of a commission issued for the purpose.^ In the latter case, the sig- nature by counsel is not required, the commissioners being re- sponsible for the propriety of its contents, as it- is supposed to be taken by them from the mouth of the defendant, as in fact was formerly done.^ CHAPTER XIX. replications and their consequences. [* 5 877. When requisite to file replication. § 878. General replications only now in use. § 879 and note. Rejoinder not in use in this country. § 880. Replication and rejoinder put the case at issue, everywhere. § 881. Replication omitted by mistake, filed, nunc pro tunc. § 881 a. Scandal and impertinence how expunged in testimony, &c.] § 877. After the defendant has put in his answer, the plaintiff is to judge, whether the answer is sufficient, and also whether he will amend the bill. If he neither excepts to the answer for in- sufficiency, nor amends his bill, the usual step next takeh by him is to file a replication.* The replication is the plaintiff's avoidance or denial of the answer or defence, and, in the maintenance of the bill, to draw the matter to a direct issue, which may be proved or ' Ante, § 875 a, and note.J ' Mitf. Eq. PI. by Jeremy, 315 ; Cooper, Eq. PI. 327; Com. Dig. Chancery, K. 2 ; Davis v. Davidson, 4 McLean, 136. ' Ibid. * Cooper, Eq. PI. 328, 329. 730 EQUITY PLEADINGS. [CH. XIX. disproved by testimony.^ After the plaintiff has thus replied to the defendant's plea, or answer, he lanst content himself with the answer, and he cannot then go back to except to it for its insuffi- ciency, he having admitted the answer to be sufficient, however imperfect it may be.^ In some cases, however, the court will allow the plaintiff to withdraw his replication, paying the costs, that have been incurred.^ Sometimes, no replication is necessary to be filed at all ; as where tlie defendant, by his answer, admits the plaintiff's case, or sufficient of it to enable him to go to a hearing without the examination of witnesses.* But as in this last- mentioned case, the whole of the answer of the defendant is taken to be true, because he has been precluded from substantiating it by evidence ; it behooves the plaintiff to look attentively into the answer, to see, that the effect of the defendant's admissions is not. avoided by any new matter there introduced.^ § 878. Formerly, replications were either general, or special, as they still are at law. A general replication, which alone is now used in equity, is a general denial of the truth of the defendant's plea or answer, and of the sufficiency of the matter alleged in it, to bar the plaintiff's suit, and an assertion of the truth and suf- ficiency of the bill.s A special replication was occasioned by the defendant's introducing new matter into his plea or answer, which made it necessary for the plaintiff to put in issue some additional ' Cooper, Eq. PL 328, 329. ' Ibid. » Ibid. ♦ Ibid. ' Cooper, Eq. PI. 328, 329. Gilb. For. Rom. 45, has explained the reasons of these proceedings, which are manifestly borrowed from the modes of proceeding in the ecclesiastical and civil law courts. " When the answer comes in," says he, " that is the litis contestatio in relation to the bill. But the replication contests the answer ; for it avers the bill to be true, and denies the answer. But if no repli- cation be filed, and the cause be set down upon the bill and answer only, the an- swer stands for truth ; because, if you do not reply to the answer, there is no litis contestatio in relation to it, and then it must be admitted to be true. So, if you file a replication, and do not serve a subpoena to rejoin, and on such subpoena to rejoin, move, that the defendant may examine his witnesses within a definite time, or at least move without a subpoena to rejoin, that the defendant may examine witnesses within a definite time, or that the cause may be set down upon the plead- ings ; if neither of these ways be taken, arid the cause be set down upon bill, an- swer, and replication, the answer must be likewise taken to be true ; because you do not assign a probatory term to the defendant ; and the replication alone is not a proper litis contestatio of the answer unless you join issue, by assigning a proba- tory term to the defendant." » Cooper, Eq. PI. 329, 330 ; Mitf. Eq. PI. by Jeremy, 321, 322. § 877, 878.] REPLICATIONS AND REJOINDERS. 731 fact on his part, in avoidance of such new matter, introduced by the defendant.! This, it seems, was in use in Lord Nottingham's time.2 The consequence of a special replication was a rejoinder, by which the defendant asserted the truth and sufficiency of his answer, and traversed every material part of the replication.^ And, if the parties were not then at issue, by reason of some new matter disclosed in the rejoinder, which required ah answer, the plaintiff might file a surrejoinder, to which the defendant in his turn might put in a rebutter.* The pleadings in ancient times, in this manner, frequently proceeded to a surrejoinder and rebutter.^ But the inconvenience, expense, and delay of these proceedings, occasioned an alteration of the practice.^ Special rephcatfons have gone quite out of use ; so that if any material charge is omitted in the bill, although it is alleged by way of replication, it is not pertinent, nor will it affect the defendant.^ In the room of special i-eplications, amendments of the bill have been substituted, and the plaintiff must now always be relieved according to the form and matter, either original or by amendment, contained in ' Cooper, Eq. PI. 329, 330 ; Mitf. Eq. PL by Jeremy, 321, 322. s Ibid. ' Ibid. • Cooper, Eq. PI. 329, 330; Mitf. Eq. PI. by Jeremy, 321, 322; Gilb. For. Kom. 45, 109, 110; Ante, § 676, 677. The form of a general replication is as follows : — " 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 insufficiencies of the answer of the said defendants for repli- cation 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, evasive, 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, material or effectua in the law to be replied unto, and not herein and hereby well and sufficiently replied unto, confessed or avoided, traversed, or denied, is true; all which matters and things this repliant is ready to aver, maintain, and prove as this honorable cour shalf direct, and humbly prays as in and by his said bill he hath already prayed. Barton's Suit in Equity, 144, 145. ' Ib!d' The 45th Kule of the Equity Rules of the Supreme Court of the United States, prohibits special replications. It declares : "No special rephca- Unitea otaies, P f ,,3 3^ ;„ the answer shall tion to any answer shall be filed. ?"' '* ^^ l^ ^^^ t,,e leave to make it necessary for the ^l^^f^^^^Zl:^^^^^^^ amend the same with or without the pajmeni, ui , ^ Tereof, may in his discretion direct." 1 Howard, K. Introd. 55 , 17 Peters, K App'x, 68. 732 EQUITY PLEADINGS. [CH. XIX. his bill.^ To the matter thus introduced by the plaintiff, the de- fendant may put in a further answer, whether required by the plaintiff so to do, or not ; and thus he has the advantage and effect of a special rejoinder.^ § 879. But, although, according to the present course of the court, rejoinders, surrejoinders," and rebutters are disused ; yet the plaintiff, after replication, must serve upon the defendant a subpoena, requiring him to appear to rejoin, unless he will appear gratis.^ A rejoinder is, however, seldom, or never actually filed ; but cases may arise, in which a rejoinder may possibly be neces- sary.* As where the plaintiff has examined a witness dejbene esse, and afterwards replied, without proceeding to serve a subpoena to rejoin, the defendant may immediately file a rejoinder, and com- pel the plaintiff to examine in chief his witness examined de bene esse ; and the neglect of this will render the depositions taken de bene esse nugatory, if the witness lives long enough to be exam- ined in chicf.^ § 880. The effect of a replication and rejoinder is to put the cause completely at issue between the parties ; for, immediately after the defendant has appeared to rejoin gratis, or after the re- turn of a subpoena to rejoin served on the defendant, and which, by an order obtained of course, is now usually made returnable immediately, and served on the defendant's clerk in court, the parties may proceed to the examination of witnesses to support the facts, alleged by the pleadings on eacli side.® § 881. Eeplications arid rejoinders are never drawn, perused, or signed by counsel, but are wholly managed by solicitors. There are, therefore, many cases, which come to a hearing, in which, if the pleadings were looked into, it would be found, that no issue had been joined between the parties.^ If it discovered that a re- 1 Cooper, Eq. PI. 329, 330 ; Mitf. Eq. PI. by Jeremy, 321, 322. « Ibid. » Mitf. Eq. PI. by Jeremy, 323 ; Cooper, Eq. PL 330. * Ibid. « Cooper, Eq. PI. 330 ; Mitf. Eq. PI. by Jeremy, 323. This is the English practice. But in America, generally, if not universally, the pleadings terminate with the replication, and no rejoinder is filed ; and the cause is deemed fully at issue upon the filing of the replication. This is the general practice in the courts of the United States. " Cooper, Eq. PI. 330; Mitf. Eq. PI. by Jeremy, 323. ' Cooper, Eq. PL 331, 335 ; Mitf Eq. PI. by Jeremy, 323 ; Rodney v. Hare, Mosely, K. 296. The replication, and the proceedings thereon, were apparently § 878 - 881.] EEPLICATIONS AND EEJOINDEES. 733 plication has never been filed, and yet witnesses have been exam- ined, the court will permit the replication to be filed, nunc pro tunc. It is not, however, in general, until after replication and rejoinder, that the parties are required to join in a commission, and to proceed to the examination of witnesses.^ also borrowed from the civil law, as the following extract from Gilb. For. Rom. p. 113, 114, will show : " The replication is the contestation of the answer; and this must be filed, in order to put the answer in issue. By the ancient civil law, the plaintiff was to give security, (as is herein before mentioned,) to prosecute his suit in two months ; and if he did not, he was to be dismissed, and answer dam- ages to the party. This begot the rule, that the plaintiff must reply in three terms ; and if he did not, the defendant might move for a dismission, with costs. The rule in the Exchequer is more according to the form of the common law ; for, after plea pleaded, the plaintiff was to reply the then next term ; and if he did not, the defendant gave him a rule to reply in a week of the subsequent term, and if he did not, there was an order for dismission, as in such cases there was judgment at law, for want of a replication. But if there were several defendants, one could not get an order for dismission, till a full answer came in from them all ; because the plaintiff cannot go to proof against one only, since publication must pass against them all, before the decree can be obtained. But then the plaintiff must, without delay, pursue the process of the court against the other defendants. Whenever the replication is filed, in order to close the litis conies- tatio, there must be a subpoena to rejoin, which is according to the old civil law, which required a citation, in order to form the act of the court; and, therefore, the first citation was to answer ; the second to rejoin, upon which the probatory term was formed; and the third was the subpcena, or citation to hear judgment. But if the defendant delayed the plaintiff upon the first citation, the court very justly might impose terms upon him, such as to rejoin gratis, and that he should consent to form the probatory term, without the service of a subpcena to rejoin.. If the plaintiff replies, the defendant can never dismiss the bill, without hearing the cause; because the defendant may rejoin gratis, and prove his answer, and so bring the cause to a hearing. But this rule is now altered ; for if a plaintiff replies,°and never serves the defendant with a subpoena to rejoin, nor takes any step towards the making of proof, but sleeps for three terms, the defendant may dismiss the plaintiff by rejoining, or setting down the cause; because they look upon the replication, though it be a contestation of the answer, to be only matter of form • and therefore, if the plaintiff afterwards sleeps for three terms, he acqui- esces in a dismission. And the mere filing of the replication, though it does put the defendant in a capacity of making proof of his answer; yet jf the plaintiff will acquiesce, and not take any steps towards the proving of h,s bill, it would be- very hard, that the defendant should be put to the trouble and charge of setting it down at his own request. But if witnesses have been examined, and pubhca.- tion passed, there, although the plaintiff should sleep three terms, >" ^^^^^^^^^ aoJadrequisilionemdefendentis; because the -"' ^^^ ,'"^';^„^^';; J^ S?, acquiescence, when the plaintiff might have proved the a legations of the bill. See also, Gilb. For. Rom. 45, 108. •^''id. EQ. PI" ^^ 734 EQUITY PLEADINGS. [CH. XX. § 881 a. In this connection it may be proper to say a few words as to scandal and impertinence in interrogatories to witnesses, and in depositions, as we have already made some remarks upon scan- dal and impertinence in bills and answers.^ It is obvious, that it is indispensable for the purposes of justice, that courts of equity should prevent improper interrogatories, and depositions contain- ing matters, which are either scandalous and impertinent, from being introduced into the cause, when they have nothing to do with the merits, and are designed to create false impressions, or unfounded prejudices. Upon a suggestion, therefore, that the interrogatories exhibited, or depositions taken by either party in a cause, are open to this objection, the court will order them to be referred to a master to report, whether they contain any scanda- lous or impertinent matter ; and if the master should report them to contain any, the court will direct such matter to be expunged, and the costs paid by the offending party or witness.^ CHAPTER XX. AMENDMENTS AND OTHBE INCIDENTS OF PLEADING. [* § 882. Matters incidental to equity pleading. 4 883. Amendments allowed at all stages. § 884. Amendments of bill how beneficial. § 885. To what extent amendments allowed. § 885 a. Amendments by reason of change of interest. § 886. Should strictly be made before issue joined. § 887. Not allowed, generally, after witnesses examined. § 888. Where suit abated, &c., bill of revivor and supplement \ 889. Itale borrowed from civil law. § 890. Supplemental bill how filed. § 891. Amendment allowed after plea or demurrer. § 892. Amendments directed, to save rights of infants. § 893. Amendments allowed, to correct admissions made by parties not competent. § 893 a. The present English practice as to amendments. ^ 894. Amendments by defendant allowed less freely. § 895. Leave to amend plea how granted. § 896. Answers amendable only in case of surprise. § 897. Case of allowing answer amended in material point. § 898. Case where amendment was denied. » Ante, § 48, 266 - 270, 861 - 863. * Gude V. Mumford, 2 Younge & Coll. 445, 446. §881 a -884.] AMENDMENTS OF PLEADINGS. 735 § 899. How far such amendments have been allowed § 900. Amendments not allowed to screen one from perjury § 901. Supplemental answer allowed, and not amendment \ 902. Amendment allowed to put in issue material facts. ^ 904. From what time amendments date. helZi. '"'■ '^"""'^■"'°*^ '° '^''^ "^« j«^''=« "f cause directed by court, even at the § 905 a. Such amendments denied, if greatly out of time. § 906. Concluding remarks.] § 882. Having thus gone over the various kinds of pleadings in equity, it remains only to add a few remarks in this place, upon some incidents, which have not been fully noticed before, and seem necessary to complete our survey of the subject. § 883. As, in courts of equity, mispleading in matter of form is never allowed to prejudice any party, the real and substantial merits of the case are always looked to.'^ No exceptions to formal minuti® in the pleadings are usually insisted on ; or, if insisted on, they are never allowed by the court to prevent a hearing upon the merits.2 For the court will, upon the discovery of any errors of this sort, allow an amendment of them ; or will wholly overlook them at the hearing, as waived, by not being excepted to in an early stage of the proceedings.^ In many cases, also, courts of equity will allow substantial defects to be amended, if the cause is in such a stage, as that they can be properly amended ; * and the circumstances, therefore, under which amendments are allowed to be made, constitute a proper subject of our further inquiries. § 884. And, first, as to amendments by the plaintiff. Amend- ing the bill may be useful for various purposes ; for the correction of mistakes ; or for the suppression of impolitic admissions in the original statements ; or for adding new parties ; ^ or for inquiring into additional facts ; or for the further investigation of facts, which have been only partially disclosed ; or for putting in issue new matter, stated in the answer.® ' Cooper, Eq. PI. 332. » Ibid. ' Ibid. * Ibid. ; Mitf. Eq. PI. by Jeremy, 324, 325. 5 Ante, § 237, 541, as to what amendments may be made under the general order to make new parties. See also Stephens v. Frost, 2 Younge & Coll. 297 ; Milligan V. Mitchell, 1 Mylne & Craig, 433, 442 ; Gibson v. Ingo, 5 Hare, 156 ; Bateman v. Margerison, 6 Hare, 502. • Gresley on Evid. 21 - 23 ; Hare on Discov. 22 - 24. 736 EQUITY PLEADINGS. [CH.'XX. § 885. If the plaintifi; after he has filed his bill, finds, that he has omitted to state any matter, or to join any person, as party to the suit, which he ought to haye done, he may supply such defect by amending his bill.^ Or, if, after the defendant has put in his answer, the plaintiff thereby obtains new light, as to the circum- stances of his case, he may amend his bill, in order to shape his case accordingly.^ And, in general, any imperfection in the frame of a bill may be thus remedied, as often as occasion shall require. If any necessary parties are omitted, or unnecessary parties are inserted, the court, upon application, will permit the proper alter- ation to be made upon terms, according to the nature of the case.^ But the matter introduced by amendment, must not be matter, which has happened since the filing of the bill, (which is termed new matter,) unless, indeed, the defendant has not put in his an- swer, in which case the bill may be amended by adding supple- mental matter.* [And there are exceptions to the general rule that matters arising after the filing of a bill are not proper matters of amendment ; as, where an executor appointed by a foreign tri- bunal, files a bill in chancery in another state, and subsequently takes out letters testamentary in the latter state, he may state the fact of the granting of such letters by way of amendment, and is not compelled to resort to his supplementary bill.^] [* § 885 a. And where, from change of interest or any other circumstance, parties become interested in the subject-matter of the suit after the bill is filed, they may be made parties to the bill by amendment, or by supplemental bill, for that purpose. And where the mother is plaintiff in a suit in equity, wherein her chil- dren have an adversary interest, and another child is born during the pendency of the suit ; on the hearing it was held that the • Mitf. Eq. PI. by Jeremy, 55, 325, 826 ; Jones v. Rose, 4 Hare, 52 ; Post, §887. = Mitf. Eq. PI. by Jeremy, 55, 325, 326. ^ Ibid. So where a bill was brought by some of the members of a joint stock company on behalf of themselves, and all the other shareholders, except the de- fendants, an amendment was allowed by striking out " on behalf of themselves and all the other shareholders, &c." and making it the bill of the plaintiffs named on the record only. Jones v. Eose, 4 Hare, 52. * Cooper, Eq. PI. 332, 333; Mitf. Eq. PI. by Jeremy, 207, 290, 324-326; Id. 55 ; Ante, § 328, 335, 336. ' Buck V. Buck, 11 Paige, 170. See 1 Barb. Pr. 207. § 885 - 886.] AMENDMENTS OF PLEADINGS. 737 cause must stand over, with liberty to amend by making such child a party to the bill.i] ^ § 886. The application by the plaintiff to amend his bill must also be made at the proper stage of the cause, in which amend- ments are, by the practice of courts of equity, allowed. The proper time to apply for leave to amend is, before the cause is at issue.^ [* ' Leyland v. Leyland, 6 Law Times, N. S. 342.] ' Cooper, Eq. PI. 333 ; Gilb. For. Rom. 49, 108 ; Mitf. Eq. PI. by Jeremv 55 324 325; Ante, § 332, 614. Although it is usual to alj .mX7Zlt made m bdls at any time before issue joined, yet it is not always a matter of course ; or under particular circumstances, the court has refused to allow material amendments to be made after the answer has been put in, especially where laches were miputable to the plaintiff. Thus, where underwriters brought a bill for discovery after the answer was put in, they moved for leave to amend by adding charges relative to matters, which might, with proper diligence, have been origi- nally put' in issue by the bill, the amendment was reftised by the court. Mills v Campbell, 2 Younge & Coll. 398, 399. So, where, after a plea was allowed and replied to, the plaintiff moved to withdraw his replication, and to amend the bill so as to vary the case originally made, the court refused the application, although, perhaps, it might have been granted if applied for at the time the plea was allowed. Barnett v. Grafton, 8 Sim. 72. The following rules on the subject of amendments were adopted by the Supreme Court of the United States, January Term, 1842. " The plaintiff shall be at liberty, as a matter of course, and with- out payment of costs, to amend his bill in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards such as filing blanks, correcting errors of dates, misnomer of parties, misdescrip- tions of premises, clerical errors, and generally in matters of form. But if he amend in a material point (as he may do of course) after a copy has been so taken, before any answer or plea, or demurrer to the bill, he shall pay to the de- fendant the costs occasioned thereby, and shall without delay furnish him a fair copy thereof, free of expense, with suitable references 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 as amended, and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby. After an answer, or plea, or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court, to amend his bill on or before the next succeeding rule day, upon payment of costs, or without payment of costs, as the court or a judge thereof may in his discretion direct. But after replication filed, the plaintiff shaE 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." " If the plaintiff, so obtaining any order to amend 62* 738 EQUITY PLEADINGS. [CH. XX. And the cause is properly at issue, when the replication is in, and the pleadings are closed ; and, at furthest, when the subpoena for a rejoinder, if one is required, is returned, or the rejoinder is put in.^ § 887. However, the court, if the commissions have not issued to examine witnesses, will allow the replication to be ^withdrawn, in order to enable the plaintiff to make an amendment in his bill. And, indeed, if no witness has been examined, an amendment has been permitted, even after publication lias passed.^ But, after witnesses have been examined, the court will not, unless under very special circumstances, or in consequence of some subsequent event, allow the bill to be altered or amended.^ An exception has been admitted in the case of the plaintiff's discovering the necessi- ty of new parties, which the plaintiff may add at any time by leave of the court, limiting his amendment to that purpose.* Some- times, leave has also been given to amend the prayer of the bill under particular circumstances, after the proper time has passed ; as where the prayer has been omitted by mistake ; or the prayer for the proper relief has not been made.^ But these are rare ex- ceptions, and not easily allowed. § 888. If the necessity of adding new parties arises from the death or marriage of any of those, who were first made parties to the bill, this caimot be done by amendment ; but, the cause being abated, a bill of revivor must be exhibited, in order to bring such new parties before the court.^ So, if the fact, desired to be stated on the record, has arisen subsequent to the filing of the original his bill, after answer, or plea, or demurrer, or after replication, 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." 1 Howard, R. Introd. 50, 51; 17 Peters, R. Appendix, 66. As to when amendments may -be made, see Green u. Tanner, 8 Metcalf, 411. To avoid unnecessary delays, a motion to amend a bill will be entertained at the same time that exceptions thereto are filed. Kittredge v. The Claremont Bank, 3 Story, R. 590. 1 Cooper, Eq. PL 330 ; Mitf. Eq. PL by Jeremy, 323 ; Hare on Discov. 22-24. " Cooper, Eq. Pi. 333. 5 Mitf Eq. PL by Jeremy, 325. * Cooper, Eq. PL 333 ; Mitf. Eq. PL by Jeremy, 325 ; Jameson v. Deshields, 3 Gratt. 4. 5 Cooper, Eq. PL 333 ; Mitf. Eq. PL by Jeremy, 325, 331. Cooper, Eq. PL 333 ; Mitf. Eq. PL by Jeremy, 325, 326 ; Ante, § 328, 329. § 886 - 890.] AMENDMENTS OF PLEADINGS. 739 bill, and of- the defendant's putting in his answer ; such as the bankruptcy of one of the parties, or a devise of the lands in ques- tion, iu case lands constitute the subject of the suit ; in each of these cases a supplemental bill must be filed.i But an amend- ment will be allowed with regard to the residence of the plaintiff, where it has been changed subsequent to the fiUng of the bill.^ So, if the plaintiff thinks some discovery from the defendant, which he has not obtained, is wanting to support his case, he may file a supplemental bill to obtain that disco very .^ Any mat- ter also, at any time, which cannot be made the subject of an amendment may be charged in a supplemental bill.* But the plaintiff cannot, upon such a supplemental bill, examine wit- nesses to any fact put in issue by the original bill.^ § 889. The original rule, as to the time of allowing amend- ments, was probably borrowed from the Civil Law, according to which the plaintiff, by the leave of the court, might add any new positions to the libel before the replication was filed ; for the rep- lication was the contestation of the answer. And after the aia- swer was contested, there could be no new positions ; but the par- ties went immediately to the proofs.^ § 890. Hence, also, the rule is derived, that, before issue joined, the only way to introduce new matter, which occurred before the filing of the bill, is by way of amendment. It cannot be intro- ' Cooper, Eq. PL 333, 334 ; Ante, § 328, 329, 336, 349. " Kerr v. Gillespie, 7 Beavan, R. 269. » Cooper, Eq. PI. 334 ; Ante, § 335. * Ibid. ; Ante, 333 - 336. » Cooper, Eq. PI. 333, 334 ; Mitf. Eq. PI. by Jeremy, 325, 326 ; Ante, § 334- 336,345-350. » Gilb. For. Eom. 108 ; Id. 48 ; 2 Bro. Civil and Adm. Law, 347, 348. Gil- bert in his For. Eom. p. 48, 49, has added some explanatory observations : » By the Canon Law " says he, " the libel cannot be amended ;)os( litis contestationem. This rule was exceedingly strong in the old Civil Law ; for the litis contestatio beine before the praetor, the judge had only a commission to hear that cause ; and he could not alter or change it. And therefore he did not take the judtcium to be cceptum, till the litis contestatio. But after the litis contestatio, they were sup- posed to be under a guasi contractus, to submit to the sentence ; because they re- ceived the judges by agreement of both parties from the pra=tor. And although hTrewt he same judge both for the litis c.n«a&, and the sentences m the CanonTaw yet they aflowed the time for reforming the libel to be only an . uTconZ^tL, and'that;,o.. litem contestatara it^comes too late ; for that would be to make another cause, which is not in contest. 740 ' EQUITY PLEADINGS. [CH. XX. duced by way of a supplemental bill.^ The reason assigned is, because the original cause is then but in fieri. After issue joined, a supplemental bill, (as we have seen,) may be filed by leave of the court ; because the first cause is closed.^ But such supple- mental bill cannot be brought without leave of the court ; because the plaintiff cannot introduce new matter into the same cause, after the time for amendment has passed, so as to make it a part of it, without the permission of the court.^ § 891. After a plea is set down for argument, the plaintiff may amend his bill ; and, although taking exceptions to an answer, accompanying a plea, is an admission of the plea, as has been before mentioned ; * yet amending the bill, after a plea, is said not to have the effect of allowing the plea.^ So at any time be- fore a demurrer is allowed, the plaintiff may amend the bill.® If, upon hearing the cause, the plaintiff appears entitled to relief, but the case made by the bill is insufiScient to ground a complete de- cree, the court will not allow an amendment ; but it will some- 1 Ante, § 332. « Ibid. » Gilb. For. Kom. 49 ; Ante, § 333, 337, 345-350. Gilbert has explained this matter more fully in his For. Rom. p. 108, 109 : " But if any new matter," says he, " was discovered after replication, they might, by leave of the court, file a supplemental bill, touching any matter of fact that was discovered after such replication ; for, the supplemental bill was in the nature of a new cause, which might be brought, by leave of the court, after the contestaiio litis in the former cause ; and the court inight lengthen the time for publication, after such supple- mental bill and answer came in ; because the prolongation of the probatory term was very much in the breast of the court. But, if the supplemental bill be moved for after publication, the court never gives them leave to examine any- thing, that was in issue in the former cause, by reason of the manifest danger of subornation of perjury, where they have a sight of the examination of the witnesses. But for matter of account, there may be a supplemental bill after publication ; because they examine to such matters of account before the master or deputy after publication. And this is from the necessity of the thing ; because the charge or discharge must be made up privately before the master or deputy ; and, therefore, they being in charge and discharge, the par- ticulars of which must be proved, such accounts being now kept by books or notes, and formerly by scores or tallies one against another. And, therefore, a supplemental bill in matters of account is seldom refused. So, likewise, a sup- plemental bill may for any fact discovered after publication passed, that was not in issue in the same cause, and where such fact might vary the decree. But after the decree is pronounced and enrolled, it must be by bill of review and reversal." * Ante, § 689. » Cooper, Eq. PI. 334. • Ibid. § 890 - 893.] AMENDMENTS OF PLEADINGS. 741 times give the plaintiff leave to file a supplemental bill, to bring before the court such matter, as is necessary, in addition to the case made by the original bill.i If the addition of parties is only wanted, an order is usually made for the cause to stand over, -with liberty for the plaintiff to amend the bill by adding the proper par- ties.2 And, in some cases, where a matter has not been put in issue by a bill with sufficient precision, the court has, upon the hearing of the cause, given the plaintiff liberty to amend the bill, for the purpose of making the necessary alteration.^ § 892. The court, considering infants as particularly under its protection, will not permit an infant plaintiff to be injured by the manner in which his bill has been framed.* Therefore, where a bill, filed on behalf of an infant, submitted to pay off a mortgage, and upon hearing the cause, the court was of opinion that the in- fant was not bound to pay the mortgage, it was ordered, that the bill should be amended by striking out the submission.^ And, where a matter has not been put by a bill properly in issue, to the prejudice of the infant, the court has generally ordered the bill to be amended.^ § 893. Sometimes, upon the hearing of the cause, it has ap- peared, that a ntatter properly in issue, or at least stated in the proceedings, has not been proved against parties, who have ad- mitted it by their answers, although not competent so to do, for the purpose of enabling the court to pronounce a decree. In these cases, the court has permitted the proper steps to be taken to obtain the necessary proof ; and for this purpose has suffered interrogatories to be exhibited.^ And, where the plaintiff has neglected to file a necessary replication, the court has allowed him to supply the defect.^ Thus, where a bill was filed on be- > Cooper, Eq. PI. 334, 335 ; Mitf. Eq. PI. by Jeremy, 326, 327; Ante, § 689 ; Ante, § 888. ^ Ibid. ^'°'^- « Mitf. Eq. PI. by Jeremy, 327 ; Cooper, Eq. PL 335. ' nltf. Eq. PI. by Jeremy, 329, 330 ; Cooper, Eq. PI. 335^ Mr Cooper (Eq PI. 335) has'addedb this connection : " And where a plamt.ff set '^ojn^^^^^ to be heard on bill and answer; and had a decree agams ^^ f^^^^'^^ default ; and when the defendant came to show cause agamst the ^ --•*-- altered in his favor, the plaintiff petitioned to rehear t\---; -/j' ^^^f ", ing prayed leave to reply to the defendant's answer, which the court granted. Eq. Abridg. 43. 8 Ibid. 742 EQUITY PLEADINGS. [CH. XX. half of creditors, for satisfaction out of real and personal estates, devised to trustees for that purpose, and subject to that charge, in strict settlement ; and the answers of the tenant for life, and of the first remainder-man in tail, who was an infant, were not replied to ; the court on the hearing, directed, that the plaintiffs should be at liberty to reply to those answers, and to exhibit in- terrogatories, and to prove their debts against those defendants, as they had before proved them against the trustees ; and it reserved the consideration of the directions necessary to be given upon such new proof.-^ [* § 893 a. Amendments of the bill, which are merely formal, and where the defect resulted from oversight or accident, are allowed at all stages of the suit, even after the hearing, upon terms which will make the defendant whole as to costs. But where the plaintiff professes to have discovered from the testimony in the case, that he has not fully, or not properly, stated his case, and therefore desires leave to amend, by making substantially a new case, after the re- plication filed, and the case is set down for hearing upon the merits, the courts of equity in England do not incline to allow the amendment, until after the hearing, when they will be able to know better, how far the amendment is indispensable to the ends of justice, and what terms, as to costs, will be requisite to indem- nify the defendant.^] § 894. Secondly ; As to amendments on the part of the de- fendant. A defendant may amend his pleading ; but this is al- lowed with much more caution than in the case of a plaintiff.^ A demurrer cannot, (as a plea may,) be good in part and bad in part, with reference to its extent, or to the quantity of the bill covered by it ; and if it is too general, it must be overruled.* But the court has a discretion, if a fair case, is made, to give the defendant leave to amend, and narrow it, upon proper terms, which is a guard upon the practice.^ § 895. With respect to the amendment of pleas, there certainly have been cases, in which the court has permitted them to be amended, where there has been an evident slip or mistake, and > Ibid. [* " Forbes v. Stevens, 10 Jur. N. S. 861. J = Cooper, Eq. PI. 336 ; Mitf. Eq. PL by Jeremy, 327, 328. » Ante, § 443, 692. 5 Cooper, Eq. PI. 336. § 893 - 896.] • AMENDMENTS OF PLEADINGS. 7, to a.end ^.^^ ^^1:^^^^^^^::^'' '''' short time in which to amend.a And where Inl.. .' ^"' pable of amendment, the defendant halS leat o^dr^: i and to plead de novo in a fortnight.* Where a pleat iSrl'o m substance, but is considered as objectionable' in poin of fo n as for not concluding either i^ bar or otherwisef and ™ fmSiir "^"""^^ '''^^^' ''^^^ '-« ^-- g-- 1 § 896 But in the case of answers, and of pleas put in upo oath, the court wUl not, for obvious reasons, easily suffer ai amendment, to be made.e In a small matter, however, the d fendant may amend ; but not in a material one, unless upon evi dence to the court of surprise.^ The most common case of amend rng an answer is, where, through inadvertency, the defendant ha mistaken a fact, or a date ; there, the court will give leave t( amend, to prevent the defendant from being prosecuted for per jury .8 In general, however, this indulgence is confined to casei of mere mistake or surprise in the answer.^ ' Cooper, Eq. PI. 336; Newman v. Wallis, 2 Bro. Ch. R. 143, 147; Nobkissei V. Hastings, 2 Ves. jr.' 85 ; Ante, § 701. ' Ibid. » Ibid. * Ibid. 5 Ibid. ' Cooper, Eq. PL 336, 337 ; Mitf. Eq. PI. by Jeremy, 327, 328. ' Ibid. ; Smith v. Babcoek, 3 Sumner, K. 583. ' Ibid. [* It seems difficult to conjecture how any amendment could fairly be allowed, with a view to screen one from a prosecution for perjury. For if there was any fair ground to question whether the answer were sworn to, in bona fide mistake, the amendment ought not to be granted ; and unless there were at least some doubt in regard to defendant having acted in good faith, it would, at the worst, only expose him to the possibility of a malicious prosecution, which is not to be anticipated. The true reason would seem to be, that the amendment should be allowed, in clear cases of mistake, in order to set the defendant right upon the record, and thus screen him from all possible, and even mistaken, imputations, against his character. See post, § 900.] ' Mitf. Eq. PI. by Jeremy, 327, 328; Howe v. Eussell, 36 Maine, 124. In Smith V. Babcoek, 3 Sumner, R. 583, the court said : " The general rules of courts of equity, in the amendment of answers are well known. In mere mat- ters of form, or mistakes of dates, or verbal inaccuracies, courts of equity are very indulcent in allowing amendments. But when application is made to amend an answer in material facts, or to change essentially the grounds taken in the 744 EQUITY PLEADINGS. ' [CH. XX. § 897. A distinction has also been made between the admission of a fact, and the admission of a consequence in law, or in equity. original answer, courts of equity are exceedingly slow and reluctant in acceding to it. To support such applications, they require very cogent circumstances, and such as repel the notion of any attempt of the party to evade the justice of the case, or to set up new and ingeniously contrived defences or subterfuges. Where the object is to let in new facts and defences wholly dependent upon parol evi- dence, the reluctance of the court is greatly increased; since it has a natural tendency to encourage carelessness and indifference in making answers, and leaves much room open for the introduction of testimony manufactured for the occasion. But where the new facts, sought to be introduced, are written papers or docu- ments, which have been omitted by accident or mistake, there the same reason does not apply in its full force ; for such papers and documents cannot be made to speak a different language from that which originally belonged to them. The whole matter rests in the sound discretion of the court. I should be sorry, that it should be supposed, that the court had no authority to grant leave to file an amended answer, wherever it was manifest that the purposes of substantial justice required it. On the other hand, considering the solemnity of answers, I should be sorry to see any practice introduced, which should in any, the slightest degree, encourage negligence, indifference, or inattention to the duties imposed by law upon parties, who are called upon to make statements under oath. And it seems to me, that, before any court of equity should allow such amended answers, it should be perfectly satisfied, that the reasons assigned for the application are coo-ent and satisfactory ; that the mistakes to be corrected, or the facts to be added, are made highly probable, if not certain ; that they are material to the merits of the case in controversy ; that the party has not been guilty of gross negligence ; and that the mistakes have been ascertained, and the new facts have come to the knowledge of the party, since the original answer was put in and sworn to. Where the party relies upon new facts, which have come to his knowl- edge, since the answer was put in ; or where it is manifest, that he has been taken by surprise, or where the mistake or omission is manifestly a mere inadvertence and oversight, there is generally less reason to object to the amendment, than there is, where the whole bearing of the facts and evidence must have been well known before the answer was put in." The 60th Rule of the Equity Eules of the Supreme Court of the United States declares : " 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 resworn at any time before a replication is put in, or the cause is set down for a hearing upon bill and answer. But after replication, or such setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or defences, 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 distinguishable therefrom." 1 Howard, K. Introd. p. 59 ; 17 Peters, R. App'x, p. 60. §897-900.] AMENDMENTS OF PLEADINGS. 745 Therefore, where a defendant, after putting in an answer, discov- ered a ground of defence to the bill, of which he was not before informed, namely, a purchase by the person, under whom he claimed, withovit notice of the plaintiff's title, which could only be used by way of defence, and could not be the ground of a bill of review, the court allowed the answer to be taken off the file, and the new matter to be added, and the answer to be resworn.^ § 898. But where the application was to strike out of the de- fendant's answer several words, importing, that he had received £ 1300 in full of his advancement from his father in his lifetime, which he refused to bring into hotchpot ; and the defendant after- wards swearing, that he had mistaken the law in that point, desired to be at liberty to waive any admission he had made as to it, and to wait till the master had made his report, it was refused.^ § 899. So, where a bill was brought by the next of kin against an executor for an undisposed-of surplus, and the executor an- swered, and waived the benefit of the surplus by mistake of the law ; although he afterwards proved, that the testator intended him to have the surplus ; yet he was not suffered to amend his an- swer.^ But a defendant, after a general admission of assets, has been permitted to amend his answer, by admitting assets to pay the plaintiff's debt only, if the same did not exceed £ 400.* § 900. So, on an application to amend a schedule to the defend- ant's answer, an indictment for perjury liaving been preferred, or, at least threatened, the court refused to interfere, although it was taken to be clear, that the defendant did not mean to perjure himself, as he had no interest in so doing.^ That question was properly the subject of consideration before the grand jury, who, if they thought that the defendant did not mean to perjure him- self, would throw out the indictment. On the other hand, if there ' Mitf. Eq. PL by Jeremy, 328 ; Cooper, Eq. PI. 337 ; Patterson v. Slaughter, Ambler, R. 292, and Mr. Blunt's note (1). « ' Cooper, Eq. PI. 337 ; Pearce v. Grove, Amb. K. 65 ; Mitf. Eq. PI. by Jeremy, 328. See Smith v. Babcock, 3 Sumner, R. 683. ' Ibid. [* There is very little question such an amendment would now be allowed.] * Cooper, Eq. PL 337, 338 ; Rawlins v. Powell, 1 P. Will. 297 ; Dagly v. Crump, 1 Dick. 35. ' Cooper, Eq. PL 338 ; Verney v. Macknamara, 1 Bro. Ch. R. 319, and Mr. Belt's note (1). EQ. PL. 63 746 . EQUITY PLKADINGS. [CH. XX. were any ground for the indictment, it would be wrong for the court to interpose.^ § 901. In proceedings upon an answer under oath, where there is a clear mistake, the answer was, by . the old practice, allowed to be taken off the file, and a new answer put in.^ But Lord Thurlow adopted a better course, not taking the answer off the file, but permitting a sort of supplemental answer to be filed ; that course leaving the parties the full effect of what had been sworn before, with the explanation given by the supplemental answer.^ This has been allowed even after the cause was in the paper for hearing.* But to obtain such permission, the defendant must state' by affidavit, that, when he put in his answer, he did not know the circumstance, upon which he applies, or any other circumstances, upon which he ought to have stated the fact otherwise.^ Howev- er, where an answer had misnamed the plaintiff, it was considered as no answer, and the defendant therefore not bound by it ; and a proper answer put in, the former was ordered to be taken off the file, by the description of a paper writing, purporting to be an an- swer.^ Exceptions also to an answer have been permitted to be amended, where there has been a mere mistake.'^ § 90*2. Upon the hearing o$ a cause, the same indulgence will be granted to a defendant, as to a plaintiff. If it has appeared, that the defendant has not put in issue facts, which he ought to have put in issue, and which must necessarily be in issue, to en- able the court to determine the merits of the case, he will be al- lowed to amend his answer for the purpose of stating those facts.* Thus, where to a bill for tithes, a modus had been set up as a de- fence, and it appeared from the evidence in the cause, that there was probably a good ground for opposing the plaintiff's claim, al- though the defendant had mistaken it ; the court permitted him 1 Cooper, Eq. PI. 338 ; Verney v. Macknamara, 1 Bro. Ch. K. 319, and Mr. Belt's note (1). ^ Ibid. = Ibid. ; Swallow v. Day, 2 Collyer, R. 133. ' Fulton V. Gilmore, 1 Phillips, R. 522. ^ Cooper, Eq. PI. 338 ; Verney v. Macknamara, 1 Bro. Ch. R. 319, and Mr. Belt's note (I). « Cooper, Eq. PI. 338, 339 ; Jennings v. Merton College, 8 Ves. 79 ; Wells v. Wood, 10 Ves. 401 ; Bolder v. Bank of England, 10 Ves. 284. ' Ibid. 8 Cooper, Eq. PI. 339 ; Mitf. Eq. PL by Jeremy, 327, 328. § 900 - 905.] AMENDMENTS OF PLEADINGS. 747 to amend his answer.^ But on the rehearing of a decree, an an- swer cannot be amended, but by consent of parties.^ § 903. Where a fact, which may be of advantage to a defendant, has happened subsequent to his answer, it cannot with propriety be put in issue by amending his answer .^ But, if it appears to the court on the hearing, that it may thus be of advantage, the proper way seems to be, to order the cause to stand over until a new bill, in which the fact can be brought to a hearing with the original suit.* A bill for this purpose seems to be in the nature of a plea puis darrein continuance at the common law.^ So, where new matter in an account is discovered before the hearing, but after a replication is filed, the court will permit a supplemental answer to be put in.® § 904. In most of these cases, the indulgence, given by the court, is allowed to the mistakes of the parties, and with a view to save expense. But when an injury may arise to others, the indul- gence has been more rarely granted.'^ And so far as the pendency of a suit can affect either the parties to it, or strangers, the mat- ter, brought into a bill by amendment, will not have relation to the time of filing the original bill ; but the suit will so far be consid- ered as pending from the time of the amendment.^ But, where a bill seeks a discovery from a defendant, and having obtained that discovery, the bill is amended by stating the result, it should seem, that the suit may, according to circumstances, be considered as. pending from the filing of the original bill, at least, as to that de- fendant, and perhaps as to the other parties, if any, and to stran- gers also, so far as the original bill may have stated any matter, which might include in general terms the subject of the amend- ment.^ § 905. Even upon the hearing, as has been already noticed, the ' Cooper, Eq. PI. 339 ; Mitf. Eq. PI. by Jeremy, 327, 328. • ' Ibid. ' Cooper, Eq. PI. 340 ; Mitf. Eq. PI. by Jeremy, 329. * Ibid. ' Ibid. » Ibid. ' Mitf. Eq. PI. by Jeremy, 330, 331 ; Cooper, Eq. PI. 340. Mr. Cooper has, in this connection, added : " And not only the parties to a suit are allowed all fair and liberal indulgence ; but it is even extended to witnesses in a cause, whose depositions are permitted to be amended in case of clear mistake ; the court al- ways aiming to act upon broad principles of justice, disentangled as much as pos- sible from little technicalities." ' Ibid. " Ibid. 748 EQUITY PLEADINGS. [CH. XX. court, having the whole case before it, and being embarrassed in its decision by defects in the pleadings, has permitted amendments, both of bills and answers, under very special circumstances.^ Where new matter has been discovered, either by the plaintiff or the defendant, before a decree has been pronounced, deciding on the rights of the parties, a supplemental or a cross bill has been permitted, to bring such matter before the court, to answer the purposes of justice ;. instead of allowing an amendment of a bill or answer, where the nature of the matter discovered would admit of its being so brought before the court.^ And after a decree, upon a similar discovery, a bill of review, or a bill in nature of a bill of review, has been allowed for the same purpose ; both these forms of proceeding being in their nature similar to amendments of bills or- answers, calculated for the same purposes, and gener- ally admitted under similar restrictions.^ It may, however, hap- pen that by the mistake, or negligence, or ignorance of parties, their rights may be so prejudiced by their pleadings, that the court cannot permit important matter to be put in issue by any new pro- ceeding without so much hazard of inconvenience, that it may be better, that the individual should suffer an injury, than that the administration of justice should be endangered by allowing such proceeding.* [* ^ 905 a. But such amendments will sometimes be denied, where the party has failed upon the main issue in the case stated in his bill, and which he has persisted in maintaining, after it was denied by the defendant's answer ; and where the application for amendment had been delayed long after it might have been made, and until a final decision of the case upon the merits.^ This case was where the plaintiff proposed to make an entire new case upon one portion of his bill, presenting it as a claim under a bequest to himself and another party, when he had at first claimed it as an assignment by the testator, before his death, to the same persons jointly. The amendment thus involved setting up the will and probate which had been obtained since the date of bill.] § 906. The remarks contained in the last section but one, consti- tute the closing paragraph of Lord Redesdale's great work on Equity Pleadings ; and they furnish a fit admonition for the close 1 Mitf. Eq. PI. by Jeremy, 331 ; [* Downer v. Wilson, 33 Vt. R. l.J ^ Ibid. = Ibid. * Ibid. [« ' Knox V. Gye, 12 W. R. 145.] § 905 - 906.] AMENDMENTS OF PLEADINGS. 749 of the present imperfect commentaries. Upon a careful review of the whole subject, the attentive reader will -perceive, that the task of mastering so complicated a science will require from him the em- ployment of many hours of deep study, of laborious research, and of undivided diligence. He must give his days and his nights to it with an earnest and unflinching devotion. But the rewards will amply repay him for all his toils. He, who has attained a thorough knowledge of Equity Pleadings, cannot fail to have become a great equity lawyer. He need not shrink from the most difficult and complicated engagements of his profession. Nay, he will find, that while many others are willing to rely on their own genius, with a rash and delusive self-complacency, to carry them thrcfugh the in- tricacies of a controverted suit, he may far more justly and safely repose on a solid learning, which will secure respect, and a trained and a varied discipline, which will command confidence. To no human science better than to the law, can be applied the precepts of sacred wisdom in regard to zeal and constancy in the search for truth. Here the race may not be to the swift ; but assuredly the battle will be to the strong. 63* INDEX. The References are to the Sections. A. ABATEMENT, Sections in equity, meaning of 354 when a suit is abated or not . . . 329,330,354,356,857 obscurity in books respecting 329 330 by death 330^ 33]^^ 354^ 35g by marriage of plaintiff 354 pleas in nature of pleas of abatement in equity . . 708 at what time put in ....... . 708 matter in abatement available only by plea, generally . 708 AJI!CIDENT, jurisdiction in equity in cases of • 472 ACCOUNT, who proper parties to a bill to account .... 218 plea of account stated, or settled, when a bar Or not . , 798 ACKNOWLEDGMENT, (See Admission.) when evidence or not 263, 264, 265 a ADDRESS OF BILL, what 26 how court described 26 names of parties how stated in 26 ADMINISTRATION, who are proper parties in cases of 170-179 foreign, effect of 167 ADMINISTRATOR AND EXECUTOR, when a proper party or not 170-177 foreign, whether may sue or be sued .... 179 objection that plaintiff is not, when to be taken by demurrer 496 when objection to be taken by plea . . . 722, 727, 728 title of plaintiff in litigation 511, 512 plea that defendant is not administrator or executor . 732 ADMISSIONS AND CONFESSIONS, how charged in a bill 263, 264, 265 a ADMISSIONS IN ANSWER, not evidence unless put in issue . . . 263, 264, 265 a AFFIDAVIT to biU, when necessary 288, 313, 477 to bill to take testimony de bene esse 309 to bill to perpetuate testimony 304 in cases of relief on lost bonds and deeds . . . 313,477 in cases of bills of review on new discovered evidence . 412 in cases where relief sought on deeds in defendant's possession 477 752 INDEX. Sections AGENT, when a proper party or not to a bill .... 231, 231 a, 232 when officers of corporation are proper parties . . . 235 AGREEMENT, specific performance of, who proper parties to bill . . 177 plea to parol, within statute of frauds .... 750, 761 ALIEN, friend may sue and be sued 51-54 corporation may sue 55 enemy, when he may sue or be sued . . . . 51 - 53, 724 sovereign, when he may sue 55 plea of alienage 722, 724 ALIENATION, PENDENTE LITE, purchaser need not be made a party ... . 156, 351, 351 a mortgage pendente lite ...... 194,351,351a ALLEGATIONS IN BILL, (See Avekment.) general frame of 23,24-45,240-290 stating part, certainty in . . 27, 28, 37 a, 37 6, 37 c, 240-255 parties, how described ........ 26, 238 charging part, certainty in . . . 31, 32, 251, 252, 253 general charge, when sufficient . . .24,25,39,242-254 title ofplaintiflF, how stated . . . 241-246,257-262 title of defendant, how stated 255,262 alternative statements .... 245,. 246, 254, 510 charges of fraud in . . . ... 251, 251 a, 252 charges of notice 263 prayer for relief ...... 40-44,314-316 in bill of discovery 558,561 in bill of interpleader . 291-297 in bill of certiorari 298 in supplemental bill 343 - 353 in bill of revivor 374-389 in bill of review 420-426 in cross bill . . - 401, 402 in bill to execute decree 429-432 AMENDMENT OF PLEADINGS, 883-905 origin of, from civil law . 889 of bill, at what time allowed 332, 614, 884- 887, 890, 891, 904, 905 for what purpose proper 614,883-887 of what matter 332,333,883-888 not of matter since the suit ...... 333 when demurrer lies, in matter of amendment . . 614,646 of pleas, when and how allowed .... 701,894,895 as to parties when allowed 459 a, 544 a, 887, 888,. 892, 893 a, 905 a effect of, as to third persons 904 of answers, when and what, and how allowed . . 896 - 902 when directed by the court at the hearing . 892, 894, 902 - 905 when refused ........ 905 when allowed at the hearing . . . 892, 893, 902, 903 INDEX. 753 ALTERNATIVE STATEMENTS IN BILL, of title, when good or not .... of other matters ANSWER, nature and form of when a proper mode of defence rule, that he who answers must answer fuUy form of issuable averments exceptions to rule (-See Pleas.) in support of plea, when necessary when not proper in support of plea . when answer overrules plea . should not cover matter of plea frame of answer in support of plea form of answer in support of a plea . Sections 245, 245 a, 254, 510 42, 42 a, 42 b, 254 845, 849, 850 . 846, 851 605, 606, 609 846, 846 b, 846 c, 847 . 855 a 546 a, 607,846 . 670-676, 784 681-684 . 688, 693 686, 688 680, 683-686, 69'l 691, 695 851- exception to answer in support of plea, when proper or not what facts material to be answered answered by several defendants answer consists of two parts (1.) defence (2.) examination . .. frame of general answer form of answer .... protestation in answer . it must state facts and not arguments it must be certain . as to facts within defendant's own knowledge as to defendant's information and belief it should be full and direct to the interrogatories it need not answer the allegation of general conibination it must answer charge of a special combination general charge in a bUl, when to be specially answered . defendant need answer only as to his own case to bill of discovery, when it may insist on objection, that it will expose to penalties and forfeitures . . 607, 846 what defence good by answer or not .... 851 as to discovery of documents by answer . . . 859,860 defendant need not discover those, which respect his own title only 858-860 effect of reference to paper 859 a effect of, not upon oath ...... 8756,875 c but must those respecting plaintiff 's title . . . 858-860 reference to documents in answer, effect of . . 858-860 scandal in answer 861, 862 reference to master for ». 867 by one defendant against another 867 impertiaence in answer 863, 867 689 860 848 850. 850 850 849, 851-860 869, 870 . 870-872 852 . 852-861 854, 855 . 854, 855 853 29, 856 856 856 857 754 INDEX. ANSWER, continued. reference to master for insufficiency in answer exceptions for insufficiency, when to be taken reference to master what is a waiver of exceptions answer of infant, how made .... answer of feme covert answer of idiots and lunatics, how made is generally under oath when dispensed with or not .... of a peer upon his honor .... signature of the defendant to ... . to be signed by counsel efiects of, when not under oath .... amendment of, when, what, and how allowed when amendment of, directed by the court at the hear- ing . . , 893,902-905 when amendment of, not allowed .... 904, 905 APPEARANCE, prayer of bill for appearance of defendant . . 44 ARBITRATION, agreement to submit to, no plea in bar to a suit for the Sections 867 864, 865 866,867 867 867 871 873 871 874 874 874 874, 875 876 . 875 a 896-901 same matter ARBITRATOR, when a proper party when not cannot be compelled to state grounds of awjurd . bill against, for fraud when demurrer lies by, to a bill when plea good, or not, by bill of discovery does not lie in aid of a suit before plea of, against discovery ASSETS, prayer for admission of, in bills .... ASSIGNEE, when a proper party or not . . . .118, pendente lite, not a necessary party in many cases of mortgage, when a proper party 804 232, 519 . 232, 519 599, 824 . 232, 519 232 824 554 824 264, 374 134, 153-158 156, 348 197, 199, 201 ASSIGNEE OF BANKRUPT, when a proper party 346, 349, 495, 619, 726 ASSIGNMENT, parties in cases of 118,134,153-158 pendente lite, effect of 117,156 of mortgages, who proper parties in cases of . 183, 184, 186 on bill to redeem . . . . .183-193 on bill to foreclose .... 193-202 ASSIGNOR, when a proper party, or not . . . . 118; 134, 153-158 ,of mortgagor, when a proper party . . . 183-186,197 of mortgagee, when a proper party . . . 189,19.0,192 on a bill to redeem . . 183,184,188-191 • on a bill to foreclose .... 193-202 ASSOCIATION, voluntary, cannot sue as a corporation . . . 497 ATTAINDER, plea of 722, 723, 729 INDEX. 755 Sections ATTOKKEY, when a proper party, or not 232 not bound to discover professional confidence . . 599-603 ATTOKNEY-GENERAL, when suit is to be brought by . .8, 49, 50, 63 when suit is to be brought against . . . " . . 222 how bill served on 44 ^£,^g in cases of charity 8, 69, 222 when a necessary or proper party ... 8, 49, 69, 222 AVERMENTS m BILL, bill, frame of 239,240-265 (5«e Allegations in Bill.) (See Ceetainty in Bill.) AVERMENTS IN ANSWER 852-862,869-875 (See Answer.) AVERMENTS IN PLEA 658-666,680-692 (See Pleas.) (See Certalnty in Pleas.) AWARD, plea of, when good, or not 803 - 804 bill to set aside, for fraud .- . . . 231, 232, 519, 803 B. BANKRUPT, when a proper party to bill 233 in case of bill of discovery 233 effect on suit of plaintiff's becoming a . . . . 349 when objection to be taken by demurrer . . . 495, 519 when assignee of bankrupt a proper party 346, 349, 495, 519, 726 want of interest as plaintiff, when an objection . . 495 want of interest as defendant 519 plea of bankruptcy of plaintiff 722, 726 plea of bankruptcy of defendant 519 BANKRUPTCY, plea of 722, 726 (See Bankrupt.) of plaintiff 722, 726 of defendant 519 effect of, on a suit 328, 329, 349 makes a suit defective, but does not abate it . . 328, 329, 349 BAR — plea in, nature of 748,749 (See Pleas.) to bills for relief 749-815 a pleas founded on statute 750-777 \ statute of limitation 750-761 statute of fraud, and perjuries .... 750, 761 - 768 other statutes 750,769-777 statute of fine and non-claim .... 750,772-777 pleas founded on matters of record 778-794 779 common recovery . . . . • • • • " ^ judgment on the same matter 780-783 foreign judgment ^83, 784 756 INDEX. a bar BAR, continued. sentence of a court of exclusive jurisdiction . fraud in obtaining a will not cognizable in equity but fraud in respect to a clause thereof and plea of such fraud is bad decree in equity on the same matter decree, when bar or not . when fraud is alleged in decree plea of matters in pais .... of release when a good bar or not necessary averments in such a plea plea of a stated or settled account . when a stated or settled account a good bar or not necessary averment in such a plea plea of an award .... when good or not plea of agreement to refer is bad . plea of purchase for valuable consideration, when frame and averments of such a plea plea of title in defendant, when good lapse of time, when a good plea BARGAIN AND SALE, how stated in a bill BILL IN EQUITY, suggestions as to drawing general nature of . . . why called an English bill ancient strictness of . modern strictness of origin from Civil and Canon Law division of bills into original and not original what are original bills what are not .... belief, when and how stated in bill when sufficient in answer division of, into bills for relief, and not for relief original bills for relief of three kinds common bill for relief .... bill of interpleader, what bill of certiorari, what .... bills not original ..... supplemental bill, what .... in the nature of a supplemental bill, what bill of revivor, what ..... bill in the nature of a bill of revivor, what bill of revivor and supplement, what cross bills bills of review .....'. bills in the nature of bills of review Sections 786, 787 788, 789 789 788, 789 790-794 790-794 794 795-815 a 796, 797 796, 797 797 798-802 798-802 802 803 803 804 805-810 805-810 811, 812 813-815 a 253 48 a 7-12 7 11,12 13 14 15,16 16-19 20,21 35 35 17 18 17, 22, 23 18 18 20, 326 20, 332-344 20, 345-353 20, 354-377 20, 377-387 20, 387 21, 388-403 21,403-420 21,421-425 INDEX. 757 21 35- 35- BILL IN EQUITY, continued. bills to impeach decrees bills to suspend or avoid decrees . bills to carry decrees into execution . original bill for relief, frame of . . . address of • . . . introduction and names of parties premises or stating part . confederacy, charge of . form of stating confederacy, special charging part, what . form of . jurisdiction clause, what . form of interrogatory part form of prayer of relief parties to, how described how named in process prayer of process in defendants should all be named in form of prayer, for process . against parties out of jurisdiction certainty in allegations in ... . how facts should be stated in ... . must show jurisdiction in equity how charges in, to be stated .... equity of, should be in the stating part, and not merely in the charging part .... general charge in, when sufficient prayer of relief, general, when sufficient when special, is required . for injunction is always special must conform to frame of the bill importance of accuracy in form of prayer in description of parties in citizenship averred in for charily, how construed signature of counsel to scandal in bill impertinence in bill . * superfluity in bill . multifariousness who may sue as plaintiffs Attorney-General corporations . EQ. FL. 64 Bi- sections 21,426-428 21, 428 429-432 23 26 26 27 29,30 29 30 31-33 31, 32 34 31 39, 265 39, 265 . 40-43 26 . 26, 44 44,45 44 44,45 . 78,80 245-257 28 10, 34 34, 251, 252 27 28, 35 32-34 38, 252 40-44 40-44 40-44 42 25- 40 27 26 8,40 47, 266-271 47, 266-271 47, 266, 271 47, 266-271 271-287 . 49-70 . 49-70 50 758 INDEX. BILL IN EQUITY, continued. Sections relators 49, 50 alien friends 51-56 alien sovereigns 55 alien corporations 55 in forma pauperis ........ 50 "who cannot sue 50-58 alien enemy 8-51 outlaw 51 person excommunicated . . . . 51 person attainted ..... 51 who incapable of suing alone 56-68 ^ infants . . . . . . .56-61 femes covert 61-64 idiots and lunatics 64-66 ■persons nan compotes 66-69 who may be sued, and how, and when . . . . 67-72 infants 67-71 femes covert 67-72 idiots 67-71 lunatics 67-71 corporations ...... 70 persons non compotes .... 70 parties to, who proper and necessary . . . 72-225 who not proper or necessary .... 225 ^ 236 general rule as to parties to 72-78 exceptions 75 -135 a when parties out of jurisdiction . . . . .78-81 prayer of process against parties out of jurisdiction . 80, 81, 82 when the objection" of parties out of jurisdiction is fatal or not 78-90 distinction between active and passive parties . . 80-86 when one legatee may sue alone . . 88,89,104,203-207 when one distributee may sue alone . . 89-91,105,106 exception as to parties, when no representative appointed 91 -93 or when unknown . . . . .92-94 exception as to parties, when numerous . . 94,95,97-130 when exception as to numerousness not available, 94, 95, 129-135 when some may sue in behalf of all . . . 95-129,203 in cases of a common interest . . 97-107,120-127,169 in cases of voluntary associations . . . 97,107-116 in cases where all cannot be brought before the court 96-98,120 in cases of prize crews ....... 98 in cases of certain creditors . . . 98-104,185,190-192 in cases of residuary legatees 87-90, 104, 185, 203, 204, 211-218 in cases of distributees . . . . 89-91,105,204 in cases of joint incumbrances ... 148, 150, 216, 229 INDEX. 759 BILL IN EQUITY, continued. ^^^^ where a few may be sued on behalf of all, and oth- ers bound 115,118-127 in cases of joint adventure X68 nature of decree asked, may affect the question of parties. . . 127-131,137-140,213,225-228 when parties not dispensed with, though numer- ous 95,96,130-135 where all have a distinct interest in the decree . 129 - 135 summary of the general rule and exceptions as to parties 135-137,222-225 who are deemed parties in interest . 135 a - 139, 225 - 228 what is an interest 135 a -139 what not 227 interest legal or equitable 137,139 " interest remote or indirect 137, 138 interest consequential 140,225-227 who is deemed the proper representative of an in- terest 140-150 when executor or administrator a proper party 140, 161-167, 170-179 when trustees . . . 143,148,150,206,213-218 when tenant in tail 144-148,161 when tenant for life 145 - 148 when remainder-man bound .... 145 - 148, 159 when persons, having prior interests, not necessary parties .... 146-149,198,213-216,230 when lessees proper parties or not . . ... . 151 parties in cases of assignments 153-157 rent charge . . . . 122-125 joint interests .... 157-162 legacies 89 joint charges or burdens 93, 162-167, 205-208 successive interests . . . 158-160,165 joint tenants and tenants in com- mon . . . 159,160,357-360 heirs and devisees . 159-161,180,181,205 part owners 164-169 partners 167-168 joint obligors and contractors . . 169 in cases of administration 1 70 - 1 74 trusts under will . . .87-90,171,180 heirs and devisees who are bound by contractors . . 172-177,180,181 leases ^^^ mortgages . • '• • .182-203 legacies 203-207 contracts for purchase of land . . 177 760 INDEX. BILL IN EQUITY, continued. Sections when third persons, having assets, are proper parties 177-179 who are proper parties in cases of survivorship . 178, 211, 212, 355-360, 367-372 proper parties in cases of foreign administrations . . 179 of common trusts .... 207-213 of trusts for creditors . 143, 148, 216 - 218 in cases of account ...... 218, 219 in cases of corporations 235 defect of parties, when fatal or not . 72, 74 a- 78, 129, 130, 134-136, 202, 203, 218, 223, 235 when an option to make a party or not .... 221 government, when a proper party to suit . 8, 9, 49, 50, 222 who are not proper parties 224 - 235 persons not consequentially interested . . 137, 226, 226 a persons having no privity 227 persons not touched by the decree . 126-130, 139, 214, 214 a formal parties, who are ^26 a, 227, 542 prior incumbrancers 149, 150, 215, 230 persons having no interest 231,232,570 attorneys and agents 231, 235 arbitrators 231, 235 bankrupts 233 witnesses 235,519,570 want of parties, how and when defect of, to be taken advantage of 236-239 misjoinder of parties as plaintiffs . 75-77,236-239,279, 509-512, 544 of parties as defendants . . . . 276-279 how want of parties shown 236 - 289 general frame of bill 239-291 certainty in 27, 239-265 a title of plaintiff 41,242,254-260 alternative statement of title . ." 252-256,509-512 uncertainty, what is in . . . 242, 255, 257 charges of fraud in 249 - 255 general charge, when sufficient 28, 29, 36 - 39, 251 - 255 defendant's title, certainty in . . . 255-257 a interest of plaintiff, how averred . . . 259-264 notice, how charged in .... 263, 264 scandal and impertinence . . . 48,266-271 multifariousness 271-286 misjoinder of distinct matters . . . 280-287 splitting up one cause of suit . 287-290, 685-695 when affidavit to bill necessary . . . 288 - 291 cenfessions and admissions, when and how to to be charged in bill .... 263, 264, 265 a bill to set aside a decree for fraud 794 INDEX. 761 BILL IN EQUITY, continued. Sections 291- 293- bill of interpleader 09 ■when proper .... frame of bill of certiorari ..... nature and subject of . . . original bill not praying relief bill to perpetuate testimony nature and objects of . frame of the bill .... prayer of the bill bill to take testimony de bene esse objects of frame of the bill .... bill of discovery, nature and objects of . never prays relief .... what is a prayer for relief general frame of the bill when it should state that an action menced or about to be bills not original, various kinds of general nature of . . . supplemental bill ... 20, general nature of . . . frame of supplemental bill bill in nature of a supplemental bill, what it is when proper when not necessary . frame of such a bill bill of revivor .... general nature of 295 293-298 298 298 . 19, 299 299-306 300 299-306 306 307-310 . 307-310 308 -'310 . 311-313 311-317 313, 314 314-326, 559-563 IS com- 559-563 20, 326 326-332 326, 332, 885-891, 905 332-344 343-345 345, 346 346-352, 885-888, 905 351-352 353 20, 354 . 20, 354 origin of . . . . . . . . . 355 when necessary and proper . 354, 354 a, 363-366 when not 354-365 parties to bill of revivor . . .178,179,210-214,354-370 in cases of bills of interpleader . . . . 362 in cases of cross bills 363 when a revivor may be in part 367 no revivor for costs 371 when defendant may revive 370-374 frame of bill of revivor . . . . . . 374-375 bill in nature of a bill of revivor 377,384 distinction between this and a bill of revivor 375 - 384 how, and by whom to be brought . . . 386-387 frame of the bill 386 bill of revivor- and supplement, what . . . . 20, 387 when proper 387 crossbill 21, 389 -391 a 64* 2 INDEX. LL IN EQUITY, continued. SeelioM cross bill, nature of 389-391 a when proper 388-395 against plaintiff 390-394 between co-defendants .... 392 at what time brought 391-397 when cross bill may be for relief as well as discovery. ...... 398 when it need not show any equity . 398-400 whether a cross bill may be in a different court 400 frame of a cross bill 401 origin of a cross bill 402 bill of review 21, 403 nature of .403-405 two sorts . 404 for errors of law 405-412 upon new discovered evidence 412-419 when and how brought .... 406-412 when decree must be complied with 406 for error of law, when to be brought . 408-412 by what persons . _ 409 within what time brought .... 410 errors of form, whether subjects of review 411,419 when allowed or not 410-420 for what new evidence 412-416 after decree 415 after affirmance in parliament 418 not mattfer of right ..... 417-420 within what time ...... 418-421 frame of bill of review .... 420 bill in nature of bill of review, what .' . . . 421 when proper 420-425 frame of the bill 425 bill to impeach decree for fraud .... . 21,426 when proper ....... 426-429 frame of 428 bill to carry decree into execution .... . 21,429 of inferior court . 429-433 bill to carry decree into execution, or to vary decree 429 frame of ...... . 432 amendment of, when and how allowed 331, 332, 614, 882-894 amendment of what matters .... 882 - 894 when amendment not allowed .... 882 - 894 effect of amendment as to third persons . 904 bill to perpetuate testimony .... 299, 300, 301 frame of 300 - 306 bill to take testimony de bene esse . . . 299, 307, 308 frame of 309, 310 INDEX. 763 Sections BONDS, LOST, BiU to recover on 313 affidavits of loss, when necessary .... 313 BOUND ABIES, usually triable at law 337-340 C. CANON LAW, {See Civil Law.) rules of, often adopted in equity . . 14, 878, 880 - 882, 889 CAUSE, when set down for hearing on Bill and answer . . . 465 CERTAINTY IN BILLS, .... 23-25,28,240,252-256 Jiow facts should be stated 27-30,252 general charge, when sufficient 35-38 different kinds of . . '. 240 title of plaintiff 240-243,254,260 title of defendant 255-257 a what is sufficient, or not . . . 28, 32, 35 - 39, 249 - 255 what is uncertainty, or not . . . 242 - 255, 255 - 257 a parties, how described 25 - 28, 236 - 239 charge of fraud, how stated 251-254 charge of notice, how stated 263 in plea 814 when plea too vague 814 want of, how taken advantage of . 242, 255 - 257 a, 528 - 531 when by demurrer . . . . 528-531 how and when want of certainty cured . . . 528-531 in answer . . . 851-860,867-874 CERTIORARI, BILL OF, what 17-20,298 when used 298 frame of 298 CESTUI QUE TRUST. {See Parties.) when a proper party or not . . 207 - 214 a in case of m,ortgages . ,. . • 192-194 CHANCERY, JURISDICTION OF, general description of 472-477 acts in personam .....•■■ 489 not limited by locality 487, 490 what subjects not within 466-485 CHARGE IN BILL, when general, is sufficient or not . 27 - 30, 35 - 38, 249 - 255 when answer must be special to general charge . ■ .856 CHARGING PART OF BILL, what ^31-34 how charges should be stated 31-34 equity should be in the stating part, and not merely in the chargmg part oi ot general charge, when sufficient . . . . 27 - 30, 35 - 39 common form of ..•■••■ ' special charge of combination, when necessary ... 29 764 INDEX. Sections CHARITY, who sues in cases of 8, 9, 49, 50, 66 - 70 bills for, construed indulgently 8, 40 CHILDKEN, when they may revive suit for settlement after death of a mother ..... 328,613 CIVIL LAW, pleadings in equity derived from . 650, 677, 707, 878, 881 protestation in answer borrowed from . . . .872 CLASS OF PERSONS, when a suit a whole class, who are proper parties 105, 207, 207 a, 207 6 CLUB, when some may be sued for all the members of a . . .116 COLLEGE, VISITOR OF, plea that he has exclusive jurisdiction of the matter good _ . 718 COLLUSION BY DEBTORS ". 177-179 who parties to bills for 177-179 COMBINATION AND CONFEDERACY, charge of in biU 29-31,856 special charge of 29-31, 856 common form of 29 general charge requires no answer .... 578, 856 special charge requires an answer ..... 856 combination, criminal, if charged, need not be answered . .578 COMMISSION, bill for, to take testimony .300 to perpetuate testimony ....... 299-308 to take testimony de bene esse ..... 306 - 310 COMMITTEE OF IDIOTS AND LUNATICS, when he may sue 64 when he may defend 70 answer by ........ . 734 COMMON RECOVERY, plea of 779 when a good bar or not ....... 779 COMMONERS, when some may sue for all . . ■ . 120-124,285 when some may be sued for all . . . 116-224,285 COMPLAINANTS. {See Plaintiffs and Parties.) COMPOSITION OF FELONY, demurrer to a discovery of . . 591 CONFEDERACY, (&e Combination.) .... 28-31,856 criminal charge not to be answered . . . . 578 general charge of 29-31,856 form of 29 special charge of 29-31 general charge requires no answer . . . . . 856 special charge requires answer 856 CONFESSIONS, when in order to be evidence to be charged in the ' bill 263, 264, 26S a CONFESSIONS AND ADMISSIONS, of defendant to witnesses, how to be charged in a bill 263, 265 a CONFIDENCE, PROFESSIONAL, an objection to biU . . 575-608 when objection taken by demurrer .... 579-603 when by plea 599 INDEX. 1^05 CONFOUNDING DISTINCT MATTERS in bill o^To^l CONSTRUCTION of pleading " .i52ai52bi52c CONTRACT, party to, not in interest, need not join . . '. 153 ' 154 a bill to set aside for fraud, necessary parties . ' 1 fiS « CONTRIBUTION TO CHARGE OR BURTHEN, ' ' who proper parties to bill for 122 - 125, 161 - 165, 173 - 176, 180, 181,203-207 in case of mortgages jog CONVERSATIONS, when in order to be evidence to be charged in *^*^ ^''^ 263, 264, 265 a CONVICTION OF OFFENCE, how pleaded . 723 729 COPYRIGHT, VIOLATION OF, suit for, against distinct persons, is multifarious . . 276 -278 a CORPORATION, prayer of process against 44-46 suit by 50 55 suit against 44, 45, 70 suit by foreign 55 officers of, when proper parties .... 235, 236 voluntary association cannot sue as 497 Freemeisons' Society cannot sue as . . . . 497 COSTS, no revivor in general for ....... 369-371 exception to rule 371 COVERTURE, PLEA OF, of plaintiflf 722,725 of defendant 733 (See Married Women.) COUNCIL, PRIVY, jurisdiction in political cases .... 466-472 COUNSEL, signature of, to bill 47, 48 signature to answer 876 signature to demurrer 461 not bound to discover professional confidence . . 599, 603 exceptions to rule 601 - 603 COUNTY PALATINE, demurrer, because suit belongs to . . . 487 plea for like cause 714 COURTS OF EQUITY, general jurisdiction of .... 472,473 act in personam 489 not limited by locality .... 487-491 CREDITORS, when proper and necessary parties .... 99 when suit by a few in behalf of all . . 99 - 102, 213 - 218 when a mortgagee may sue in behalf of all creditors . 101 when creditor may sue for himself alone . . . 99 - 102 in case of deed of trust and for payment of creditors, who proper parties .... 101 - 104, 213 - 218 who may revive on creditors' bill 365 when they may sue debtors of estate or not . . 177,514 when they must sue trustees of debtor . . . 514,515 when they may sue legatees or not . ■ • .517 766 INDEX. CREDITORS, continued. Sections when creditors by different judgments may join in one bill 162, 533-539 in proceedings under creditors' deed, what parties . . 216 a CRIMINAL MATTERS,' (See Demurrer and Pleas.) biU of discovery does not lie in aid of . . 521, 577, 589 nor to compel discovery of criminal matters . . 553, 592 demurrer to discovery of 547, 553, 575 - 578, 590-596, 607, 608 plea to discovery of 823 answer may object to discovery of .... 846 CROSS BILL, what is 389 origin of 402 when necessary or proper 389-397 for relief 389-397 for discovery . . . 390 between defendants 391, 391 a a mode of defence 393,399 not necessary now in same cases, where formerly required 394 at what, time to be brought 395 what relief proper on 397 equitable relief only on 398 bill of revivor in case of 363 in cases for specific performance 294,397 in what court to be brought 400 frame of bill 398, 401 in oases of relief 398 in cases of discovery 398, 401 demurrer to 628 - 634 a (See Demurrer.) plea to 832 (See Pleas.) answer to 845 all affirmative relief sought by 398 a CROWN, SUITS by or against the who sues for the Crown 8, 9, 49, 50, 69 when Attorney-General a party suing . . 8, 9, 49, 50, 69 when Attorney-General a proper defendant . . 7, 8, 9, 222 in case of charities 8,9,49,50,69 D. DAMAGES STIPULATED, bill of discovery lies to aid ... 590 DEATH OF PARTY, effect of 329, 356 of plaintiff ..... 329, 354, 362 of defendant 354 of feme covert 361 of husband 347, 361 of administrator or executor . . . 360,382 INDEX. 767 DEATH OF PARTY, continued. g^,ti„^g abatement of suit by .... 329,354,355 when suit survives or not .... 354-358 death of the plaintiff 356-360 effect of, after decree 362 DEBTORS, -when proper parties to bills .... 178,227,262,514 when not 178,227,262,514 in cases of collusion 178,227,262,514 ■when they may demur to bill for want of privity . . 513 DE BENE ESSE, bill for examination of witnesses nature of 307, 308 when proper or not 281,307-309 frame of bill ; 281,307-309 affidavit necessary to ..... . 309 DECREE, (iSee Demurrer, Pleas, Bill op Review, and Bill NOT Original.) when it binds absent parties, or not . 81 - 91, 94, 97, 105, 106 frame or prayer for, how it affects making parties 126-131, 137, 138, 214, 214 a, 225 when it binds remainder-men .... 144-148,161 when lessees bound ....... 151 fraud in, bill for 426-428,794 fraud in, how pleaded 789 - 794 former decree, when a bar or not .... 789 - 794 of dismissal, when a bar or not 793 bill of revivor, after decree ..... 366-373 may be made for plaintiff, according to facts set up in de- fence 503 c bill in the nature of revivor, after decree . . . 385, 386 bill of review of 403-408,634-638 bill in nature of bill of review 321-426 426,427, 639, 796 . 429, 430, 641 634 . 833-836 429-433,641 . 640-644 265 . 241, 265, 862 852,858-862 . 852, 853, 859 them part of an- . 858-862 bill impeaching for fraud . bill to execute decree demurrer to bill of review . plea to bill of review decree of another court bill to suspend decree DEEDS, how referred to in bill . . . • when reference proper . reference to, in answer, effect of how reference to, should be made . when reference to, in answer, makes swer DEFECTS IN PLEADINGS, nonjoinder of parties, . . 235,237,245 of parties, how cured . • • 221,236 of parties, how insisted on . • 75,236,238 misjoinder of parties . . .237,271-286 how and when bill amended ... 332 768 INDEX. DEFECTS IN PLEADING, continued. in what manner amendable in plea, when and how amended in answer . DEFENCE, modes of by demurrer .... by plea .... by answer .... by disclaimer what mode proper in certain cases to different parts of bill, by demurrer to relief to discovery by plea to relief .... to discovery by answer to relief by answer to discovery what must be taken by demurrer 433 matters of form .... want of formal parties -440,487, Sections . 332, 333 701 . 852-866 434-436 436, 439-465 436, 647-702 436, 845-849 436, 838-844 436,438-443 438, 439 . 466-545 545-611 . 702-816 816-826 . 845-848 845-848 488, 605-609, 647 528, 532 542 that another court of equity has jurisdiction . . 488 multifariousness .... 271, 284 a, '537-541 want of interest of defendant 569,570 matters of abatement, how and when available in defence 708 matters in bar to relief 748-816 (See Pleas to Relief.) matters in bar to discovery 817-826 (See Pleas to Discoveey.) DEFENDANTS in bill, {See Parties.) description of . 26 how named in process .... . 44-46 none, except those against whom process is prayed . 44 who may be sued as ... . . 67-71 infants . . . . . ' . . 67-71 femes covert . . 67-72 idiots and lunatics . . . . . 67-71 corporations . 70 Attorney and Solicitor-General when 69 persons non compotes .... • 70 aliens ....... . 51-56 proper parties, who are .... . 26,44 exceptions 75-138 nonjoinder of ' . 75, 76, 235 -239 misjoinder of ..... . 237, 271-286 want of interest in .... . 519 -521,570 not compellable to discover their own title . 547, 572-575 nor to discover facts leading to forfeitures or penalties on criminal accusations . . . 553,575-580,591- 596 INDEX. DEFENDANTS, continued. exceptions to the rale by contract or waiver .... by stipulated damages .... by lapse of time by acts of moral turpitude merely plea of purchase for valuable consideration (See Pleas.) plea of title of defendant .... DELIVERY OF DEEDS, bill for, when affidavit required to DEMUEREK, nature of when a proper mode of defence 769 Sections 589-598 589 590 598 596 805-810 when objections should be taken by . 284 a 541, 542, 436 BQ. to bill for relief to bill for discovery may be to the whole bill or to part .... in what form to be taken when too general when several defendants causes of, what are proper matter apparent on bill stated by pretence in bill what it admits for defects of substance for defects of form for defect of form must b#taken by general, what special, what .... speaking, what bad in part, bad in whole . in nature of a plea in abatement sometimes always in form in bar of suit applicable to bills only .... not applicable to pleas or answers when demurrer lies to whole bill relief when demurrer overruled by answer frame of demurrer must specify parts of bill, to which it goes . . 457-459 when too extensive, effect of . . 443,458-466,692 how defect cured 459-460 overruling, effect of 460 second demurrer not allowed 460 to be signed by counsel 461 when demurrer alone not sufficient on time allowed to plead 461, 462 causes assigned on record, effect of overruling . . . 461 PL. 65 438 436 -454, 603 811 477 -447 -607 , 453, 488, 526-529, , 603-610, 647-650 438, 439, 447 442, 605, 606 442 439-447 605 a 443 445 447, 456 449 450 452 453 454, 505 a 453, 528 455 455 448 443, 692 456 456 457 456 if for discovery and 312, 441, 751, no(e 688 457-466 770 INDEX. DEMURRER, continued. SeotioM causes assigned ore tenus 464 to bill for relief 466 to original bill for relief 466-545 d) to jurisdiction . 466-493 that subject not cognizable in any municipal court . 466-472 that subject is political . 466-472 that subject is not within the jurisdiction of a court of equity 467,472-485 that the remedy is at law . 472-480 that the defence is at law 481, 482 that no remedy at law or in equity . 483-485 that some other court of equity has jurisdiction . 486-489 County Palatine 487 Court of Great Session of Wales 487 Courts of Universities 487 Courts of London ...... 487 Courts of Cinque Ports ..... 487 on account of locality of suit 487 objection must be taken by plea or answer . that somefother court possesses jurisdiction 488 490-493 ecclesiastical court 490, 491 that exclusive jurisdiction belongs to State Courts in America ........ 492 (2) to the person 493 that plaintiff is disabled to sue] .... 494, 495 that plaintiff has not the character in which he sues 493 suit by infant, idiot, iSnatic, feme covert 494 suit by bankrupt 495 that plaintiff is not administrator or executor . 496 that plaintiffs are not a corporation . 497 that plaintiff is a fictitious person .... 498 (3) to substance of bill ....... 499-526 value in controversy ..... 500-503 want of title in plaintiff . . . . , 503-508 want of equity in plaintiff .... 505, 525 a want of interest in plaintiff .... 509 title of plaintiff stated in the alternative 616 litigated or doubtful title of plaintiff . 511, 512 want of privity in parties .... 513-519 want of interest in defendant .... 619-621 that bill is to enforce penalty or forfeiture 521-526 (4) to frame and form of bill ...... 527 defects of form ...... 528, 642 when and how objection taken .... 454, 528 want of certainty 24 2, 255, 529 multifariousness 530-641 what is, or not, multifariousness . . 530-54 1, 609, 610 DEMURREK, continued. for joinder of distinct defendants . . 530-54fTlO for joinder of distinct causes of suit . . 530-541,' 610 for want of proper parties. (5ce Parties.) 525 b, 540 - 545 for misjoinder of parties . . . 525 c, 540-545 forirregularity in frame of . . . , 642-647 demurrers to bills of discovery . . .'. 545-611 to bills of discovery in aid of an action . . 545 _ 551 defendant may demur to relief and answer to discovery 312, 546 to relief, when a good bar to discovery . 312,545 547 to discovery, when not a bar to relief . . . ' '545 to particular discoveries .... 547 607-609 because the discovery will subject defendant to forfeit- ures and penalties . . . 547-554,575-588 or to pains and punishments . . .547-596,607-609 exceptions to the rule 589-598 that discovery is immaterial .... 546,564-570 that discovery is of defendant's and not of plaintiff's *'''^ _ 474, 546, 572 for multifariousness 630-540 that subject is not of municipal cognizance . . 549, 551 that plaintiff is under disability to sue . . . 549 that plaintiff has not the character he assumes . 549 that plaintiff has no interest 549 that plaintiff has no right to discovery . . . 649 that defendant has no interest .... 549, 569 that suit is not of a civil nature .... 553 that suit is an information, or indictment, or quo war- ranto, or prohibition, or mandamus . . , 553 that the suit is before arbitrators . . . . 554 that the court, where the suit is depending, can give discovery 555 that the discovery would be in aid of a suit against public policy 556, 557 that the action, in aid of which discovery is sought, is not maintainable 558 effect of doubt in this respect . . . . 562 that the state of the pleadings does not justify a dis- covery 659 that no action is commenced or is averred to be about to be commenced 552, 560 to discovery in aid of defence, when allowable or not 563, 564 whether in aid of a suit in a foreign court 53, note, 311, 652 that bill is by or against persons not parties to the suit at law 669 for want of privity of defendant .... 671 that bill seeks discovery of professional confidence 599-603 that defendant has equal equity .... 603 - 605 772 INDEX. DEMURRER, continued. SccOom that defendant is a purchaser for a valuable considera- tion '603-605 in what cases demurrer to discovery is the proper mode of defence 434-439, 488, 605, 606, 608, 609, 647 what is not matter of demurrer 610 want of parties is not matter of demurrer to discovery 610 demurrer to bills not original . . . . 611-647 to supplemental bills and bills in nature of . . 611-617 that plaintiflF has no right to the bill . . . 611-614 that no case is made for a supplemental bill . . 614 that no new facts are shown 615 that the facts are proper for an amendment • 615,644-647 that the bill is not properly supplemental . . . 616 to bill of revivor, and bills in nature of revivor 61 7 - 625, 829 that no ground for'revivor is shown . . 617,830 barred by statute of limitations . . . 831 that no privity is shown . . . . 618, 619 for want of interest 620, 621 for defect in frame of the bill . . 622, 625, 829 that defendant has answered the bill of discovery 623 when want of parties an objection or not . 614, 830 plea of statute of limitations to revivor .... 831 to bill of revivor and supplement . . . . 627 to cross bill 628-634 that it is not properly a cross bill . . . 628-634 that it is brought contrary to the practice of the court 632 to bill of review and bill in nature of ... 634 that bill is not brought within limitation of statute 635 that the new matter is not relevant . . . 636 that it is brought contrary to the course of the court 638-647 to bill to impeach decree for fraud . . . . 639, 645 to bill to suspend or avoid decree . . . 640 - 644 to bill to execute decree 641 DEPOSITIONS 299-310 {See Bill to take Testimony akd to Perpetuate Testimony.) DEVISEE, when a proper party 160 in cases of trusts 171 in cases of covenants and bonds . . . . 174-177 in cases of mortgages . . . . . . 1 75, 182 - 205 in cases of charges on real estate . . 87,174-177,180 in cases of contracts for purchase of real estate . . 177 in cases of bills for specific performance . . . . 177 in cases of bill by devisee to prove will, who are parties 87, 181 DEVISE OF LAND, fraud in will, not cognizable in equity 474, 786, 787 DILATORY PLEAS, what are in equity 706-709 borrowed from civil law 650,70' INDEX. 77g DISABILITY OF PARTIES, (&e Bill and Pleas.) ^^cmns of plaintiff 51-67 of defendant 67-71 DISCLAIMER, nature of * .' 838-845 plea of, when proper or not 838 - 84i may be to whole or part of a bill .... 838-841 plaintiff, when entitled to an answer, notwithstanding . 840 when costs allowed on or not ..... 84'' DISCOVERY, bill of, nature of . 311 never prays relief . . . . . . . . 312 proper prayer of 313-316 frame of biU . . _ 317-325 title of plaintiff 318 320 interest in subject-matter . . . . . . . 319 certainty in bill 320,321 proper case to be shown in bill 320, 321 in aid of some suit 320, 321, 321 a in what suit allowed 322 interest of defendant, how stated in ... . 323 privity of title 324 whether in aid of a foreign suit . . .53, note, 311, 552 description of subject-matters in .... 323, 324 when a mere fishing bill 325 demurrer to discovery ...... 545-611 (See Demurrer to Bills of Discovert.) demurrer to, when proper 435 - 439, 488, 493, 545 - 548, 550, 605-611 which will subject party to penalty, or forfeiture, or punish- ment for crime, not allowed .... 575-588 privileged communications, discovery of, not allowed . 599-603 how far a party may waive objection to discovery of crimi- nal matters by agreement .... 521, 577, 589 when and how objection to, should be taken 488, 489, 604 o-607 parties to bills of discovery, who are proper or not . 569, 610 pleas to discovery 816-826 (See Pleas to Relief.) want of parties no objection to . . . . 610, 745- 746 what discovery defendant is or is not bound to give as to title 571-578,856-860 (See Pleas to Discovery.) of deeds and documents, what plaintiff entitled to . 856 - 860 what not 858 effect of reference to in answer .... 856-860 what order should be passed after discovery obtained . 311 the proper office of 317-321 a DISMISSAL OF BILL, general effect of .... 456, 457," 793 for matters of form 456,457 ' without prejudice, effect of 456,457,793 65* 774 INDEX. DISMISSAL OF BILL, continued. decree of, when a bar or not DISTRIBUTEES, when all should be parties . when one may sue alone . DISTRINGAS, writ of, proper process against corporation DOCUMENTS, production of, when demandable . how far made part of pleadings how far qualify general averments DOUBLE ASPECT, bill with .... DOUBLE PLEAS, when allowed or not allowed in discretion of the court . DUPLICITY, in plea demurrer for Sections 456, 457, 793 89-91, 105, 204 89-91, 105 858 452 6 . 254 b 254 657 657 653-657 653-657 E. ECCLESIASTICAL COURTS, exclusive jurisdiction in cases of will of personalty . 490,786 objection when to be taken by demurrer . . . 488 objection when to be taken by plea . 489-495, 716-720, 788 ENROLMENT OF DECREE, what is 403 necessary to bill of review ...... 403 necessary for plea of a former decree .... 790 ERROR IN A DECREE, when subject of bill of review . . 404-410 when subject of bill in the nature of bill of review . 421-424 ERRORS EXCEPTED, in account stated, when not sufficient to pre- vent the plea in bar of the account .... 803 EXAMINATION OF WITNESSES 299-309 (See Bill to Examine Witnesses.) EXCEPTION, (Exceptio,) in Civil Law, what .... 650, 707 peremptory 707 dilatory - 707 EXCEPTIONS, to answer, (See Answer.) when and how taken .... 689,860-867,891 when exceptions to an answer accompanying a plea admits its validity 689, 891 EXCOMMUNICATION 51, 722 .person excommunicated cannot sue .... 51, 722 but he may be sued 732 plea of excommunication of plaintiff 722 EXECUTION OF DECREE, bill for 429, 430 nature of bill for . 429, 430 bill of revivor added to bill for 432 supplemental bill added to bill for 432 demurrer to bill for ....... 441 plea to bill for 437 EXECUTOR AND ADMINISTRATOR, (See Administrator and Executor.) INDEX. EXECUTOR AND ADMINISTRATOR, continued. when proper parties to a bill . foreign, whether they may sue or be sued demurrer, that plaintiff is not . plea, that plaintiff is not plea, that defendant is not what defences may be made by 775 Sections 170-179 179 497 722-729 732 179 a 553, 591-597, 607- 609 824 F. FELONY, charge of, in bill demurrer for plea for FEME COVERT, (See Married Woman.) cannot sue alone without her husband when she may sue her husband when she may sue hy prochein ami when and how she may be sued how she defends suit .... answer of, how put in . . . FEOFFMENT, how pleaded .... FICTITIOUS PERSON, that plaintiff is, may be taken by motion FINE AND NON-CLAIM, when a good bar or not FISHING BILL, what is a mere FISHERY, who proper and necessary parties in case of a general right of when suit in behalf of or against all in right of when numbers engaged in a common fishing adventure fishing crew, when some may sue in behalf of all . FOREIGN GOVERNMENT, may sue generally may sue, if recognized by ours, otherwise not FOREIGN COURT, pendency of suit in, whether a bar . judgment of, whether a bar whether bill of discovery lies in aid of a suit in FOREIGN JUDGMENT, when a bar or not FOREIGN PROBATE, when conclusive or not FORFEITURES AND PENALTIES, bill to enfore demurrable .... bill of discovery of, demurrable plea to bill of discovery of . . . when defendant compellable to discover and answer as to 588 - 591 in cases of contract and waiver .■ . . 580,589-591 in cases of stipulated damages 590 in cases of waiver of ^^^ in cases of penalties and forfeitures expired . . . 598 FORM OF BILL, defects in, how and when insisted on . . 454, 528 demurrer-for 454,527-630 irregularity in ^^° . 61-64 61,63 . 61,63 66-72 . 66-72 873 253 498 770-778 325 125 125 168 168 55 55 741 783 53, note, 311, 552 783 788 553, 521-526 554, 575-588 824 776 INDEX. FORM OF BILL, continued. Sections in plea, how amended 701 in plea, how insisted on 700, 701 FORMER ADJUDICATION, how far a bar . ' . . . . 783 a when presupiption arises of being on merits . . . 793 a FRAUD, facts constituting, how stated 251 a may always be set up by answer 394 a FRAUD IN DECREE, bill for 426 when proper 426, 427 filed without leave of court 426 what decree is fraudulent 426, 427 demurrer to bill for 639, 644 when pleaded ". . 789-794 in obtaining will not be cognizable in equity . 474, 786, 788 in probate of will 474, 788 in account . 802, 803 FRAUDS AND PERJURIES, plea of statute of . 748 - 769, 761 - 769 when a good plea or not 748,761-769 proper averments in plea 748,761-769 may be plead, ore ienus, at hearing, in some cases . . 761 a G. GUARDIAN, when he may sue 58, 59 when he may defend 70 ad litem 57, 70 of idiots and lunatics 64-66, 722, 725 how far jurisdiction of, local 69 a {See Idiots and Lunatics.) GOVERNMENT, suits by and against 8, 49, 69 when a proper party 8, 69, 222 H. HEARING, when on bill and answer 456 HEIR AT LAW, when a proper party 160 in cases of trusts ........ 171,172 in cases of covenants and bonds 173,174 in cases of mortgages 175,182-205 in cases of charges in the realty . . .87, 175, 176, 180 in cases of contracts for purchase of real estate . . . 177 in cases of bill for specific performance of contract . 177 in cases of probate of wills 87,181 HUSBAND, when a proper party 61, 62, 71, 381 may sue his wife 62 effect on suit, when out of jurisdiction .... 63 death of, eifect on suit of husband and wife . . . 361 HUSBAND AND WIFE, when and how to answer .... 71 INDEX. 777 I. IDIOTS AND LUNATICS, how they sue . sue by committee or guardian how they defend defend by committee or guardian when objection taken by demurrer when by plea . plea of idiocy of plaintiff answer of, how made IMMATERIALITY, what is demurrer for, in bill plea of . . . IMPEACfflNG DECREE, bill for . nature of . when it lies demurrer to plea to . IMPERTINENCE, what in bill .... reference to master for in answer reference to master for at what time made what waiver of . INCUMBRANCER. (See Mortgage when a proper party in cases of in cases of prior incumbrance in cases of subsequent incumbrance in cases of successive mortgages . on bill to redeem mortgage who proper parties plaintiffs who proper parties defendants on bill to foreclose who proper parties plaintiffs . who as defendants incumbrancers pendente lite, when proper parti whom decree in case of mortgage binds INDICTMENT, bill of discovery does not lie i% aid of INFANT, how he must sue . must sue by next friend . whether by guardian . how sued how he must defend . when objection taken by demurrer plea of infancy of plaintiff . plea of infancy of defendant . answer of infant, how made amendment in pleadings of, allowed ) Sections 64, 65, 722, 725 64-66 70 70 492 722 722 871 48,265-269 546, 564-568 822, 823 426 426 . 426-429 638, 644 48, 266, 863 48, 266-271 266-270 . 862, 863 862, 866 . 864, 867 866-870 146-15' 133, 158, 180, 181 0, 193, 203, 230 193-195 181-187 181-189 182-187 188, 189 193-197 199-207 193-198 194 193, 194 553 57, 722, 725 57 . 58, 59 70 70 493 722, 725 732 871 891, 892 778 INDEX. 286 INFORMATION AND BELIEF, when answer to, sufficient or not INFORMATION, what is when proper in what different from a bill criminal, bill of discovery does not lie in aid of INHABITANTS, when some may sue for common interest of all . INJUNCTION, special prayer for, always in bill form of prayer for may be granted without regard to extent of injury INNS OF COURT, who have jurisdiction in cases of . plea to bill in chancery of such exclusive jurisdiction INSOLVENCY AND INSOLVENT, who parties in cases of when executor or administrator is insolvent plea of insolvency of plaintiff plea of insolvency of defendant INSUFFICIENCY, in answer what .... when answer insufficient when exceptions are to be made for . reference of answer when made INSURERS, distinct, when they may join in one bill for dis- covery 279, INTERPLEADER, bill of, what it is when it lies or not frame of title to maintain, how stated .... must show persons in esse capable to interplead plaintiff must claim no interest in subject when bill of revivor lies in case of recent English cases in regard to . INTEREST, what is an interest in respect to parties remote or indirect .... consequential legal or equitable .... virtual representation of . common, when some may sue for all successive parties having interests in remainder contingent interest* persons, having prior interests, when parties or not . 146 interest, how stated in bill .... joint interest, objection for want of . when allowed in stating account against trustee INTERROGATORIES, borrowed from Civil Law what are proper or not ..... confined to matters in bill .... form of 135 a 76 142 Actions 853-^856 . 7,8 7,8,9 9 553 112-115 41 . 41,42 730 a 717 718 157, 169 170 722, 726 722 864 865 866 867 535-538 18 291-299 291-297 291-297 295 297 362 297 c -139, 227 76, 137 140, 226 137 141-151 97 159, 165 -148, 161 143-146 151 , 215, 230 259 - 268 509-511 181a 39 35-39 . 36-38 35 INDEX. 779 INTERROGATORIES, continued. , , , Sections general charge authorizes special 36-38 frame of 265 when defendant must answer upon his plea being overruled 697 IRREGULARITIES, in bill, how taken advantage of . . . . 528 ISSUE, what matters are in issue or not gg nothing in issue except matters charged in bill or answer •••..... 3S when a cause is at issue 885 886 J. JOINDER, of improper matter, effect of 283 - 284 a JOINT ADVENTURE, when some may sue for all .... 168 in case of prize crew 98 in case of fishing crew ....... 168 JOINT BONDS, who parties to bill on 169 JOINT CONTRACTORS, when proper parties .... 159 JOINT CHARGES AND BURTHENS, who parties in cases of 93, 122 - 125, 162-167, 205 JOINT INTERESTS, who proper parties in cases of . . . 159 - 164 JOINT STOCKHOLDERS AND PROPRIETORS, when some may sue for all ... 107 - 117, 128, 129 JOINT TENANTS AND JOINT OWNERS, when proper parties 159, 358 JUDGMENT, bill to set aside 426 - 429, 790, 794 plea of former judgment, when good or not . . 780-782 foreign, when a bar or not ...... 783 of court of exclusive jurisdiction ..... 786 fraud in obtaining ........ 784 JUDGMENT CREDITOR is not deemed a purchaser for a valuable consideration 807 a JURISDICTION OE COURTS OF EQUITY. {See Pleas.) must be shown in biU 10, 34 common clause in bill 34 general description of 472-476 acts in personam ........ 489 not bounded by locality 487 what subjects not within 467,486 K. KIN, NEXT OF, when proper parties 90, 105 when some may sue on behalf of all 105 when want of title as next of kin taken by demurrer . 504 KING, who sues for the king 8, 49, 69 when Attorney-General a party in defence . 7-10, 222 when Attorney-General sues for . . . . • 6 - 9, 49 T80 INDEX. L. Sections LEGATEES, joint legatees, -when all should he parties ... 89 residuary, when all to be parties . . .88-90, 104, 204 ■when they may be dispensed with as parties . 89, 90, 104, 203 when some may sue on behalf of all . . . 88,89,104,204 when one may sue alone .... 89, 104, 203, 205 when suable by creditors or not ..... 515 LAPSE OF TIME, when a bar in equity .... 503, 751, 813 when objection taken by demurrer, .... 503, 751 when it may be pleaded 814 (-See LiMiTATioKS, Statute of.) LESSEES, when proper parties or not 151 LETTER MISSIVE, in case of Peers 44 form of 44 and note LIBELLUS ARTICULATUS, of Civil Law .... 25, 39, 850 like interrogatory part of bill 39,850 LIMITATIONS, STATUTE OF, when a bar in equity ... 503 when objection taken by demurrer . . . 503 - 506, 751 when by plea 748-759 a, 812 -81 fi when ore terms . . . .' . . . . . 847 a averments in plea 748- 759 a when by answer 503,751,847 when a good bar to bill of revivor 546,830 when a bar to bill of revivor 830,831 when to bill of review ....... 410 for error of law . . .' . . . . . . 410 for error of fact 419 LIS PENDENS, purchasers buying while a suit is pending need not be made parties 156,351-352 pendency of former suit when a good plea. . . 735-744 LOST INSTRUMENT, when plea that instrument is not lost is good 313, 713 LUNATICS, how they must sue 64-66,722,725 sue by committee or guardian 64-66 how they must defend 70 defend by committee or guardian ..... 70 plea of lunacy of plaintiff 725 answer of, how made 871 M. MANDAMUS, bill of discovery does not lie in aid of . . . 322, 553 MANSLAUGHTER, plea of attainder for . . . . . . 723, 729 MARRIAGE, effect of, on a suit in equity 329, 360 marriage of plaintiff 329,361,381 marriage of defendant 354 marriage of female executor or administrator . . 360 INDEX. 781 700, MARKIED WOMAN, cannot sue alone may sue her husband when she sues by prochein ami . when she sues with her husband . when she may sue alone or not . how she defends and answers suit . when with her husband when alone .... when compelled to answer . effect on suit of, by death of husband effect of maxrisLge pendente lite . when objection taken by demurrer answer of, how made MASTER IN CHANCERY, .... reference to, of bill for scandal .... for impertinence reference of answer for scandal for impertinence for insufficiency ..... reference^ when to ascertain verity of plea in cases of a plea of former decree in cases of the pendency of another suit . MATERIALITY, in cases of relief .... of discovery MISJOINDER, of different matters .... of parties .... 236, 236 a, 271-286, 544 of parties as plaintiffs . . . .279,286,508,510,544 of parties as defendants 271-279,544 whether different judgment-creditors can join in same bill 161 note, 284-287 when different underwriters may join in the same bill 279, 286 o, 537 when bill demurrable for 540 - 545 of plaintiffs, when decree notwithstanding 224, 232, 238, 283, 544 of parties, how and when taken advantage of 271, 279, 283, 285, 540, 544, 569 MISPLEADING 691-698 MORAL TURPITUDE, acts of 593 bill of discovery lies for 694,595 MORTGAGEE, when a proper party or not 182-203 as plaintiff 181-187 as defendant 188-193 may sue on behalf of himself and other creditors . . 101 first mortgagee, when a proper party . . • • 193 second mortgagee, when a proper party . . . 186,191,194 on a bill to redeem 182-193 EQ. PL. 66 SectioD3 61-64 62-64 63 61-64 61-64 71 71 71 71 347 354 494 873 266 240, 266 266-271 266-271 865 862 863 864 700 700 743 288 288 271-286,530, 541 782 INDEX. MORTGAGEE, continued. Sections on a bill to foreclose . . '. . . . .193-203 MORTGAGOR, when a proper party or not 182 - 203 on a bill to redeem 182-189 on a bill to foreclose 193-203 MORTGAGES, parties to bill to redeem 182-193 who proper parties plaintiffs 182-187 who proper parties defendants .... 188 - 193 who proper parties to bills to foreclose . . . 1 93 - 203 who parties plaintiffs 199-203 who parties defendants 193-198 when personal representative a party . 175,182-190,194-202 when heir or devisee . . . . 175,185,186,194-203 MULTIFARIOUSNESS, what 271-286,530,540,747 how objected to 271-286 by uniting improperly distinct matters . . 271-286,530-640 by joining improperly several defendants . . . 271-278 or several plaintiffs 279, 279 a ■ by joining several matters against distinct defend- ants 271-280,530-540 when bill not multifarious . . . . 284-287,531-538 bill when demurrable for, or not in bills for relief in bills for discovery .... plea of multifariousness .... when and how taken advantage recent decisions upon the subject mainly matter of discretion in the court . illustration of multifariousness, recent cases MULTIPLICITY OF SUITS by splitting up one cause of action when objection taken by demurrer . when objection taken by plea . when distinct judgment-creditors may unite in one suit 162,284-288,535-538 when distinct underwriters may unite in one bill . . 286 a, 537 284, 530-540 530-549 . 610, 820 747 284 6 539 a, 539 6 541a . 5416 . 286-288 287-288 -287-288, 530-541 746 N. NE EXEAT REGNO, writ of, there must be special prayer for in bill . 43 NEGATIVE PLEA, good ' . . 667, 673 NEXT FRIEND, of married woman, when he may sue . infant, when he may sue fraud in obtaining consent of, to a will NEW MATTER, discovery of NOMINAL PARTIES, when dispensed with NON-CLAIM AND FINE, plea of, when good or not 61 67-61, 70 789 332, 333, 326-421 229, 541, 542 . 772, 777 INDEX. 783 NON COMPOS, s,eti„„, how he may sue 64-67 how he may defend suit 70 NOTICE, how charged in bill 263 how denied in plea 805 - 809 how denied in answer 806, 851, 854, 855 effect of, on purchasers 806-809 in a plea by purchaser should be denied even if not charged in the bill 806 omission of an averment of want of, when aided . . 697 to agent, affects principal, although obtained in another transaction 808 a and note NUMEROUSNESS OF PARTIES. (See Parties.) when it dispenses with suing all parties . . . 95-127,216 when not 94,95,130-135 O. OATH, when bill must be sworn to when answer must be sworn to ORE TENDS, DEMURRER when proper .... effect of . ORIGINAL BILLS, what .... what not .... OUTLAWRY, person outlawed cannot sue person outlawed may be sued plea of outlawry of plaintiff . 288, 313, 314 . 874-877 464 464 464 17, 18 16 . 51, 722 732 722 PAIS, MATTERS IN, PLEA OF 794-813 , ... 794-813 release, X X J ^ ,. 798-802 stated account , . . 803 award • • anr.aio purchase for valuable consideration . . • • ouo oi^ lapse of time PARISHIONERS, when some may be sued in behalf of all . ■ " wh«p some may be sued for all PAROL AGREEMENT, when statute of frauds a good bar to, or not . . lay a PAROL TRUST, when statute of frauds a bar to, or not . PARTIES TO BILLS, who are plaintiffs, how described defendants, how described citizenship of, averred ••;■■" who are proper and necessary parties who are not proper or necessary parties . general rule as to making parties 768 766-768 . 26,44 26 . 26,44 .» 26 72-225 225-235 . 72-78 784 INDEX. PARTIES TO BILLS, continued. Sections all persons in interest to be made parties . . . 72-78 who have ^n interest in the sense of the rule . . 136 - 139 who not 225 as to remote interests 76,77,137 objection for want of, when and how taken . 74 a, 77, 236, 236 a, 237,540-545 for misjoinder, how and when taken 237, 271, 278, 283, 540, 544 as to indirect interests 76, 137 . 140, 227 140-150 137 78, 95-98, 105, 106 . 75-136 . 75-78 not be . 78 - 90 81-88 as to consequential interests . as to representative interests as to legal and equitable interests . absent parties, how interests guarded . exceptions to rule as to parties exceptions to rule, general nature of . persons out of jurisdiction, when they need must be, if their interest is affected distinction as to active and passive parties . . 81-86 exception, when no decree against absent parties is ■sought . . .86, 87, 122, 129, 138, 139, 213, 214, 225 •exception in cases of joint interests and some absent 87-90, 159- 164 exception when proper parties onkndwn . . . .90-95 when no proper representative in existence . . 90,91 when a virtual representative exists . . . 140-151 where parties numerous ■ ^- • • 94-97,217 reasons and limitations of this exception . . .94-97,126 three classes under this ex:ception .... 97 when a few may sue in behalf of all . . . 97-126 how far others are regarded as parties to suit . 125 a, 125 6 in cases of common interest or right 97, 98-107, 124, 168, 285 in cases of a common fishing adventure . . . 168 in cases of voluntary associations . . . 97,107-115,134 in cases of distinct interests, and all cannot be joined 97, 98, 120 - • 126 in cases of creditors of different classes under a deed of trust, only one class need be joined .... 102 when a suit by part of prize crew for all . -m ' • ^^ when by some creditors for all . . 99-104, 157, 213-218 when by some legatees for all ... . 89, 104, 203 when by some distributees for all . . . . . 105 when by some associates for all . . . 107-115,128,129 when by some inhabitants or parishioners for all . 114, 285 when suit may be against some for all, and all be bound 115 - 126 in cases of joint proprietors 117,129 of assignees 82,118,134 of stockholders 119,120,135 c of tenants, commoners, &c 121,123,285 INDEX. ■ 785 PARTIES TO BILLS, continued. ^^^.^^^ of tenants and rent charges . . . . 122 123 of incumbrancers 133,158,180,181 when parties not dispensed with, though numerous 94, 95, 130-135 in cases of distinct interests . . . . . 129-135 when distinct judgment creditors may join in a bill to set aside fraudulent conveyances by debtors 286, 286 a, 535 - 538 when distinct underwriters or insurers may join in a bill in cases of fraud in policies .... 286 a, 537 summary of general rule and exceptions as to parties 135 - 138, 223, 224 nature of decree sought, how it affects question of par- ties . . . 127-129,136-141,212-216,225-228 formal parties, when dispensed with .... 229, 542 parties in special cases 146 - 224 who are virtual representatives of all interests . . 141-150 when tenant in tail is 144-146,165 when an executor or administrator is . . 140, 148, 170-179 when trustees are . . . 148,149,171,201,206-216 ^ when tenant for life is 143-146 in cases of contingent interests 144 - 146 when remainder-man is bound by decree . 144-147, 161 when lessees bound by decree 151 when lessees proper parties 151 parties in cases of trusts . 85-88, 148-151, 155, 171, 203-214 of assignments 153, 183, 202 of incumbrances . . 133,146-151,193-195,230 of prior incumbrances . 133, 158, 193, 214-218, 230 of subsequent incumbrances . . 133,158,193,213 of joint interests .... 159-162,166 of successive interests .... 158-161,165 of joint contracts and obligations . . 159-170 of joint tenants and tenants in common . 159, 358 of contracts for sale of real estate . 160, 1 72 - 1 78 when heirs and devisees are proper 160, 170 - 176, 180, 181, 196-200, 219 in cases of common charge or burden 122 - 124, 162 - 167, 172-176, 180, 203-207 of part-owners 164-169 of partners 167, 168 of contribution 162-169 of fishing adventure 1^8 of principals and sureties . . ■ • '^^^ of survivorship .... 169,178,354-365 of insolvency ^"^ of administrators .... 170-180,218 of trusts under wills . . 87-89,171,172,180 of collusion with debtors 1^® 66* 786 * INDEX. PARTIES TO BILLS, continued. Sections of foreign administrators . . . . 179, 180 of mortgages 175, 181-203 of discovery 569, 610 parties on bill to redeem .... . 182-192 as plaintiffs ...... 182-187 as defendants . 188-192 on bill to forectose .... 193-203 as defendants 193-198 as plaintiffs 199-203 when incumbrancers are proper parties in cases of mortgages 187-195, 230 in eases of legacies and charges under wills 203-207 in cases of trusts .... 207-218 when trustee is a proper party . . 207-214 when cestui que trust . 207-214 in cases of account . . ... 218 defect of proper parties 218-239, 745 how and when aided 218-222, 745 how and when insisted on . 1 75 - -177, 236-239 misjoinder of parties . . 238,271-287, 508-512, 544 who may be parties at choice of plaintiff 153 -158,215, 221 who are not proper parties . 224-236 persons not in privity 227 persons against whom no decree is sought 87-89, 127, 129, 139, 212-216, 225-231 nominal parties ....... 229, 542 persons having a paramount title 133, 158, 193, 213, 214, •225-231 persons having no interest 229 - 233 persons having an adverse interest .... 230 bankrupt 233 witness 234 exception as to witness ...... 235 plea of want of parties, when proper .... 236 frame of plea for want of parties .... 238 demurrer for want of parties, when proper . . 541 defect of how and when objection taken 75 - 77, 236, 239, 540-544 how supplied 236, 541, 885 becoming interested after suit brought . . . 885 a may sometimes be admitted by petition . . 237 a, 237 6 PARTNERS, when necessary parties 78, 167 when dispensed with as parties ,78,167 when surviving partners necessary parties . . . 1 78 plea that the plaintiff or defendant is not a partner is good 667-669,673 PART-OWNERS, when proper parties .... 78,164-169 INDEX. 787 Sections PAUPER, who may sue in forma pauperis 50 PEEK, process against 44 letter missive in case of . 44 form of letter missive 44 note answer of, not sworn to 874 PENALTIES AND FORFEITURES, bill to enforce, demurrable 521-526 bill of discovery in aid of, demurrable . . 553,575-588,607 exceptions by waiver of 580 exceptions by contract 588-596 exceptions by lapse of time 598 (See FORFEITUKES AND PENALTIES.) bill to enforce, demurrable . . . 521-526,553,575-588 plea to discovery of 824 defendant protected from discovery of, in answer . when defendant compellable to discover . PENDENCY of another suit such plea never replied to, but referred to a Master plea of, to bill of relief plea of, to bill of discovery .... purchaser pendente lite not a necessary party . PENDENTE LITE PURCHASERS not necessary parties . PEOPLE, who may represent PERFORMANCE, SPECIFIC, who proper parties to biU for . . 71 - 77, 129 a PERPETUATION OF TESTIMONY, nature of bill for when it lies frame of biU 299-307 interest of plaintiff 301 interest of defendant 302 material facts to be stated in bill for . . . . 299-307 grounds for bill for 303 right, how described in 280 - 284, 305 prayer of bill 306 affidavit to bill for, when necessary 304 decree, what proper in bill for 306, note supplemental bill for ^^^ proper defences to such bill 306 a PERSON, pleas to the, (See Pleas.) of plaintiff '22-732 of defendant • • • ''^^ PIRACY, plea of capture by, when good, without conviction . . 729 PLAINTIFF, (See Parties.) description of, in bill and process . . • • 26, 43 who is a proper party to sue " ,. , ...^ /. , .. 50-55 disability of, to sue in forma pauperis 589- ■591 735- -744 , 743 735- -743 820 156 351 156 351 235 a 172- -178 300 299- -302 788 INDEX. PLAINTIFF, continued. Sections party to bill, who proper and necessary as . . . 72-225 who not • . . 225-235 general rule as to parties plaintiffs . , . 72-74, 78 exceptions 77-135 a summary of rule and exceptions .... 135, 223, 224 when some plaintiifs may sue for all . . 88-91,104,105,198 when not , 94-97,130-135 parties plaintiffs in special cases 152-235 defect of parties plaintiffs, how taken advantage of . 236-239 defect of party, when fatal Or not . 72, 75, 78, 130, 134, 135 a, 218-222, 236-239 misjoinder of party as .... 76-77,236,279,510 objection that plaintiff is not capable to sue, when to be taken by demurrer 496 voluntary association of persons cannot sue as plaintiffs . 497 want of title in plaintiff 503-510 want of equity in plaintiff ..... 505 - 514 want of interest in plaintiff .... want of joint interest in one plaintiff alternative title in one plaintiff or another . litigated title in ..... want of privity of PLEA IN EQUITY, general nature of pure plea, what plea, not pure or anomalous, what . office and frame of plea .... like exception of civil law . . ' . in what cases proper ..... should reduce defence to one point . duplicity in plea 653-657 two distinct pleas, or double pleas, when allowed or not . 657 requisites of a good plea ..... 658-690 requisites of a pure plea 658-665 it must not evade the subject of the bill . . . 659 - 665 it must express the part of the bill, to which it goes 659, 662, 693 plea may be to a part of the bill as well as to the whole . 647 how exception of matters should be stated in . . . 659 it should be founded on matters dehors the bill . . 647, 659 it should reduce the cause to a single point . . . 652, 661 it should not be an argumentative plea .... 662 when it may aver facts as to best knowledge and belief . . 664 it should distinctly aver all material facts .... 665 requisites of a plea not pure or anomalous . 667, 668, 679-692 propriety of this plea formerly doubted . . . 668-670 validity of, now established . . • . . . .670 peculiarities of this plea 670 . 507- -512 509 , 254, ,510 • 510- •515 513 647- -702 651, 658- -666 651 • 649, 658 650 505 J ,647, 652 . 652 ,653, 654 INDEX. 789 PLEA IN EQUITY, continued. ^^^.^^^ it relies on matters in the bill 669-672 it is accompanied by an answer in support of it 669, 783 - 786 reasons why an answer accompanies it . . . 670-676 origin and history of plea not pure . . . .676-679 frame of such plea 680 691 the plea should negative the special circumstances in bill to avoid a bar 678, 681 so should the accompanying answer in support of plea 679, 681, 683-687 when an answer is not proper 681-683 the plea not pure should not cover the whole bill . . 686 - 688 the answer should not extend to matters covered by the plea 688 if it does, it overrules the plea 688 frame of such an answer 679-686,691 when an answer overrules the plea .... 688, 693 reason of this rule 688 at what time exceptions should be made to the answer 689-692 plea may be good in part and bad in part . . . 692 plea may be to whole or to part of bill .... 693 plea to whole bill, which does not cover the whole bill, is bad 693 whether to whole or part of bill, must cover all it pro- fesses to 652 a defendant cannot make different defences to same portions of bill 691a, 691 b when plea ordered to stand for an answer . . 693,697-700 form of plea "... 694 form of answer in support of plea . . . . 695-698 sufficiency of plea, how determined . . . . 597 setting down plea for argument . . . . • .697 effect of allowing plea 697 effect of saving benefit of plea to the hearing . . 696 - 700 ■ ■ effect of ordering it to stand for an answer . . 696 - 700 when issue should be taken on plea 697 effect of taking issue on plea 697 effect of overruling plea . . . • • • .699 truth of plea, how ascertained '^00 when by a reference to a master plea, how and when amended plea, defects of form of, how taken advantage of negative plea good when good and how pleaded .... pleas to relief in nature of pleas in abatement at what time, and how pleaded order of pleading different classes of pleas pleas to jurisdiction that subject is not of municipal cognizance 466 - 472, 710, 711 700 701 699-702 . 667-669 667-669, 673 . 702-816 708 708 . , 708 . 705,710 790 INDEX. PLEA IN EQUITY, continued. SecHons that it is not within cognizance of a court of equity 472, 712, 713 plea that instrument not lost, when good . . . ,713 that another court of equity has jurisdiction 486-489, 714- 722 that another court has exclusive jurisdiction 489-493, 717, 786- 790 how pleaded pleas to the person .... the person of plaintiflf outlawry excommunication . , . , Popish recusancy attainder alienage infancy coverture idiocy and lunacy . bankruptcy and insolvency pleas to want of character, assumed in bill want of title in plaintiff want of interest in plaintiff to the person of defendant . what he may plead what disability he may not plead that he does not sustain the character stated that he has no interest ... bill or frame of bill ..... pendency of another suit in equity . frame of the plea when plea is not good pendency of another suit at law .... reference to master to ascertain truth of this plea plea of want of parties (See Parties.) how and when defect in, cured by amendment plea of multiplicity of suits plea of multifariousness . pleas in bar, nature of pleas in bar to bills for relief . pleas founded on statute statute of limitations when good or not, and how avoided statute of frauds and perjuries when good or not other statute, when a bar statute of fine and non-claim when a good bar or not plea founded on matters of record . 718-723 722-735 722-732 722 722 722 722-730 . 722-724 722, 725 . 722-725 722, 726 . 722, 726 722, 726-728 . 728-732 512-518, 731 732 732 732 in bill 732 734 735-747 735- 747 736-739 739 741 743 745 745 746 747 748 816 777 760 760 768 768 750, 749- 749- 749- 749- 759 a- 759a- 750, 767, 770 750, 769-778 . 769-778 749, 778-794 INDEX. 791 PLEA IN EQUITY, continued. g^^„„^ common recovery 779 judgment 780-784 foreign judgment ...... 783 sentence of court of exclusive jurisdiction . . 786 decree in equity 790-794 when not a bar 790-794 decree, when and how avoided . . . 790-794 plea in matters ira^ais 749,795-816 release 795-798 how and when release avoided . . . 796-798 stated and settled account 798-802 when bar avoided 798 - 802 errors excepted, effect of 800 averments in plea of stated account .... 802 award 803 how avoided 803 plea of agreement to refer, bad 804 plea of purchase for valuable consideration, when a good bar .805-812 frame of such a plea 805-811 plea of lapse of time, when a good plea or not . . 813 plea of title by defendant 811 PLEA TO DISCOVERY, 816-826 pleas to jurisdiction 817 pleas to the person 818-820 want of interest in defendant 819 pleas to frame of bill 820 pleas in bar 821 - 826 {See Pleas to Relief.) statute bars matters of record matters in pais title in defendant plea, that the suit is upon a mere point of law, and not of fact plea, that discovery will subject defendants to penalties and forfeitures 824,825 821 820 821 822 823 or criminate him . . • • ■ or betray confidence as counsel . or as arbitrator plea of purchase for valuable consideration . {See Pleas to Relief.) want of parties not a good bar to bill for discovery PLEA TO BILLS NOT ORIGINAL, to supplemental bills that it is brought contrary to rule . . . • a bill of revivor 824 824 824 824 -826 610, 745 826-838 827 828 829 792 INDEX. PLEA TO BILLS NOT ORIGINAL, continued. Sections when plea proper 829 that plaintiff is not entitled to revive 829 want of parties, when an objection or not . . . 624, 830 plea of statute of limitations 831 to cross bill 832 to bill of review 833-836 when plea of former decree good or not . . . 833-836 plea to new discovered matter, when good . . . 834 to bill in nature of bill of review .... 833-836 to bill to impeach decree 836 denial of fraud, &c 836 to bill to carry decree into execution . . . . 837 that plaintiff has no right or interest in former decrre . 837 PLEA OF DISCLAIMEE, nature of 838-844 when proper or not 838 - 840 may be to whole or part of bill 838 - 840 plaintiff may be entitled to an answer, notwithstanding . 840 when costs allowed on, or not. ...... 842 PLEADING IN EQUITY, meaning of 4 (See Pleas in Equity.) PLENARTY, for six months, when a good bar 758 POLITICAL MATTER, plea- that bill is for 711 demurrer to bill for 466-472 POPISH RECUSANCY, 51, 722 plea of, of plaintiff 722 POSSESSORY BILL, what 255 PRACTICE IN EQUITY, how distinguished from pleading . . . 4 PRAYER OF BILL, what 40-44 for general relief . . . . . . . .40-44 form of, for general relief ...... 40 special prayer, when proper . . . . . .41-43 in the alternature, how made . . . . . 42 a, 42 6 what is a prayer for relief 314 for injunction, special ....... 43 form of prayer for injunction . . . . . . 41 for writ of Ne Exeat 42-45 for process 44 form of, for process 43-45 when defendant out of jurisdiction . . . j .34,81 what is properly a prayer for relief .... 313-317 prayer of bill of discovery 313-317 prayer of supplemental bill 343 - 353 prayer when parties are out of jurisdiction . . .34, 81 on bill of discovery 288,311-317 of interpleader bill 291 of bill of revivor 374,386 what is properly a prayer for relief . . . . 313-317 INDEX. Y93 PRAYEK OF BILL, continued. 1 . . Sections ^,^^^.°°; 313-317 ol bill of review ... . „„ „, .„ . 420 ot bill m nature of bill of review . aoc PRAYER OF PROCESS, in bill . . .'.".".". 44 parties should be named in 44 form of . . J 4 J . 44 and note against peers . . against common persons 44 against corporations . 44 against parties out of jurisdiction ... 80 PRETENCES, charge of, in bill '.' 30-34 common form of charge 32 PRETENSED TITLES, plea of statute of . .'.".". 768-773 PRINCIPAL AND SURETY, proper parties in suits by or against . 169 PRIVILEGE, of counsel, extent of 233 a, 233 J, 825 a PRIVITY, WANT OF, when fatal or not . . 262,324,513-520,618 of plaintiff 324,513-515 of defendant 324,513,517 objection by demurrer 511-518 PRIZE CREW, when some may sue in behalf of all . . . . 98 PROBATE OF WILL, heir must be a party to bill for . . . 87, 181 PROCESS, {See Subpcena.) 43, 44 against peers 44 against corporations 44 where attorney-general is a party 34 PRODUCTION OF DOCUMENTS, how and when by defendant . 859 PROHIBITION, bill of discovery does not lie in aid of ... 553 PROPRIETORS, JOINT, when some may sue for all . . . 107-115,128-130,133 when some may be sued for all . . . . 116-126 PROTESTATION in a demurrer, effect of 457 in plea 694 in answer In support of plea 695-699 in answer generally 872 PUBLIC OFFICERS, mode of declaring against .... 248 a PURCHASER, BONA FIDE, FOR VALUABLE CONSIDER- ATION, WITHOUT NOTICE, entitled to protection . . . . 603 - 604 a, 805, 806, 825 when he may demur 603 when he should object by plea or demurrer . . 603 - 604 a if he answers, he must answer fully . 605,668,810,846,847 plea of, when good or not 697,805-810 averments in a plea of 662,697,805-810 should deny nptice in his plea, even if notice not charged inthebiU 662,806 judgment-creditor is not deemed a purchaser for a valuable consideration 807 a EQ. PL. 67 794 INDEX. PURCHASER, PENDENTE LITE, Section* not a necessary party , • 156, 351 eub-purchaser, when not a necessary party . . . 351 a Q. QUEEN, who sues for 8,49-52,64-69 QUO WARRANTO, bill ofdiscovery does not lie in aid of . . 553,580 R. RECONVENTIO OP CIVIL LAW, 402 is the cross bill of equity 402 RECORD, COURTS OF, what are or not 778, 779 RECORD, MATTERS OF, how and when a good bar . . .778-794 (See Bar and Pleas in Bar.) REFERENCE, agreement for 804 plea of agreement to refer no bar to suit .... 804 REFERENCE TO DEEDS AND DOCUMENTS, in bill, effect of 241, 265 what proper 241, 265, 862 in answer, effect of 852, 862 how it should be made 852 - 860 when a reference to makes deeds part of answer . 868-862 REFERENCE TO A MASTER 266 of bill for scandal or impertinence .... 266-271 at what time to be made 269-271 of answer for scandal 862 for impertinence 863 for insufficiency 864 to ascertain truth of plea, in what cases .... 700 in case of former decree 700 in case of pendency of another suit .... 700, 743 REHEARING, when proper 421 petition for 421 not allowed after enrolment of decree .... 421 REJOINDER 676, 878 now out of use 878,879 subpoena to rejoin still required to be served . . . 879 effect of the service of the subpoena 880 never signed by counsel 881 RELATOR, who is 7, 8 when proper to be named 7, 8, 9 when suit by and how 7, 8, 9, 49, 50 RELEASE, when a bar or not 796-798 (See Pleas.) RELIEF, bill for, what is 16-21 demurrer to 466 - 645 (See Demurrer to Relief^ INDEX. 795 RELIEF, continued. pleas to (See Plea to Relief.) prayer for, common form of special prayer, on bill for when common prayer sufficient . RELIEF, PRAYER OF, general prayer, what and when sufficient general form of what special and when necessary special prayer for injunction .... prayer, when defendant is out of jurisdiction in bill of interpleader REMAINDER-MAN, when a proper party or not .... when bound by decree .... when represented by tenant in tail when a proper party in case of mortgages . when he may bring a bill in nature of a bill of REMEDY AT LAW, exception for, how taken . RENT CHARGE, who parties to bill for . REPLICATION, origin and use of derived from civil law when to be filed efiect of filing special, formerly used, but now disused never signed by counsel . . when allowed to be withdrawn . REPRESENTATIVE, PERSONAL AND REAL, personal, when proper party to a bill . real, when a proper party . . 160,170 who is virtual representative when a tenant in tail is .> when a tenant for life is . . RESIDUARY LEGATEES, when proper parties . when not REVERSIONER, when a proper party . when bound by decree when a proper party in case of mortgages REVIEW, BILL OF, what is ... ■ when proper after enrolment of decree . for errors of law not allowable for errors in form . what are errors of law on record . whether allowable a'fter decree affirmed who may bring parties and privies only Sections 702-816 40 41, 42 40-45, 313-317 40-42, 313-317 40 . 41-44 43 . 34, 81 . 291-297 . 144-148, 185 144-148,161 . 144-148,161 185, 202 revivor . 424, 425 . 481 a 122 676-678,877 677 877 . 877-887 676-679,878 881 887 141,148-179 -177, 180, 182-205 140-151 . 144-148,159 144-146 88, 90, 104, 204 . 89, 104, 204 144-148 144 - r48 175 403 403 403 404-412 411 407 408,418 409 409 796 INDEX. REVIEW, BILL OF, continued. Sections within what period it lies 410 upon newly-discovered matter 412-419 what matter sufficient ....... 412-416 whether of matter not before in issue . . . . 414-415 allowance of, discretionary for new matter . . . 418 within what period 419 after affirmance in Parliament 418 frame of bill 420,636-647 • demurrer to 634 - 638 (See Demurrer to Bill of Review.) pleas to bill of review 833-836 plea of former decree 833 plea of non-compliance with rules of the court . . 833 when requires leave of court 421 a recent practice in regard to 421 b, 421 c delay in bringing, how excused ...... 423 a REVIEW, BILL IN THE NATURE OF BILL OF, what is 403, 421 when proper 403,421-425 when decree made against person having no interest . . 424 by whom to be brought 424 at what time 423 by remainder-man, when 424 frame of bill 425 prayer of bill 425 when a bill of revivor added 420, 425 when a supplemental bill added 420, 425 when it may be filed without leave of court . . 424, 425 demurrer to 634-638 statute of limitations, when a bar to ..... 410 (See Demurrer and Limitations.) REVIVOR, BILL OF, what is 354 nature of ........ . 354 origin of ......... . 855 when necessary or proper .... 354-360,363-370 when not 355-363 in case of marriage .... 329,346,857,360,361 in cases of survivorship ...... 357,358 who may revive ........ 859 in suits for a settlement 341 in case of several plaintiffs ...... 359-369 in case of executors 370 who are to be made defendants to 359-362 in cases of bill of discovery . . . . . .371a not after a discovery . . . . . . . 371a in cases of bill of review . . . . . . . 420 in cases of interpleader 362 INDEX. 797 REVIVOR, BILL OF, continued. Sections m cases of cross bill . . . . _ _ ogo in cases of creditors' bill 3g5 no creditors but parties to original suit can revive . . 365 in cases of a decree 362-367 for part of suit ggy no revivor for costs except in special cases . . . 371 when defendant may revive 372-374 frame of biU 374,622-627 prayer of 374 demurrer to, when proper 617-627 (See Demurrer to Bill of Revivor.) plea to 829-832 want of title in plaintiflF 829 want of proper parties 624 830 statute of limitations 831 (See Plea.) REVIVOR, BILL IN THE NATURE OF BILL OF, what it is 377-380 what necessary or proper . . . . . . 377-379 who may bring . . . ^ 335 distinction between this and bill of revivor . . 377-382 distinction between this and supplemental bill . . 384 benefit of former proceedings, when had by . . 376-383 in cases of marriage of female plaintiff" .... 354, 381 in cases of bankruptcy 383 in cases of death of executor or administrator . . 382-385 or of bankruptcy of executor or administrator . . . 383 after a decree 382 children may revive bill of wife for settlement . . 329,613 frame of bill 386 prayer of bill 386 demurrer to bill 617-625 (See Demurrer.) plea to bill 816-831,834-838 (See Plea.) REVIVOR AND SUPPLEMENT, BILL OF ... . 387 nature of 387 when necessary or proper 387 demurrer to bill 627 (See Demurrer and Plea.) REVOLUTION IN GOVERNMENT, who may sue in case of . 54-58 S. SCANDAL, what is 48, 266, 267 in bill 48,266-270 in answer 861, 862 67* 798 INDEX. SCANDAL, continued. reference to master for scandal in bill 48, Sections 267-271 861-867 867 or not 783 867 881a 881 a 366 366 253 -788 786 798 m answer at what time reference for scandal in answer made reference of answer for scandal by one defendant against another ......... in interrogatories and depositions effect of SCIRE FACIAS to revive, in the old practice proper, when decree enrolled SEISIN, how averred in bill SENTENCE OF FOREIGN COURT, when a bar of a court of exclusive jurisdiction SETTLEMENT, bill for, by wife SETTLED ACCOUNT, plea of when good or not 798-802 (See Plea.) SIGNATURE OF COUNSEL, required to all bills .... 47 to demurrers 461 to answers 876 of defendant required to answer 875,876 SOLICITOR-GENERAL, suit when brought by . . . .8, 49, 50, 69 suit when against 8, 49, 50, 69 SPEAKING DEMURRER, what 448 SPECIAL DEMURRER, what 439-443,455 when proper 455 SPECIFIC PERFORMANCE, bill for, who are proper parties to 75,160,172-177 SPLITTING up one cause of suit 287 when demurrable 287,685-696 * when to be pleaded 746 STATED ACCOUNT, plea of 798-802 when plea of, good or not 798 - 802 (See Plea.) STATING PART OF BILL, what is 27 proper frame of 27-30,246-256 STATUTE BAR, plea of 748-777 STATUTE OF FINE AND NON-CLAIM, when a bar or not 771-777 STATUTE OF FRAUDS. (See Plea.) plea of, when good or not 748, 761 - 768 averments in 761-768 parol trust, when within 766-768 STATUTE OF LIMITATIONS. (See Plea and Limita- tions.) 503-507,748-760 when insisted upon by demurrer . . . 503-506,751 when by answer 503, 751, 847 plea of, when a good bar or not to relief or discovery 748, 751-831 INDEX. 799 STATUTE OF LIMITATIONS, continued. g,„ti„„, averments in such plea 748 -759 a when a good bar to bill of revivor 622 760 when a good bar to bill of review . . 410 STRICTNESS IN PLEADING, generally not so great in equity as at law . . . . 658 in plea of attainder 728 729 STOCKHOLDERS, when some may sue or be sued for all 107- 115, 118, 119, 128, 134 when some of a corporation may sue or be sued alone . 131 SUBPCENA, writ of 44 prayer for, in bill 44 all persons defendants to be named in ... . 44 form of prayer for U, note process in case of a peer 44 origin of 45 derived from civil law 45 when issuable 45 against common persons ....... 44 against corporations ........ 44 SUB-PURCHASER, how and when a proper party or not 351 a, 352, 544, note SUITS m EQUITY. (See Bill.) SUPERFLUITY OF STATEMENT 48,266-269 in bill, how objected to 48,266-269 SUPPLEMENTAL BILL 326-344 nature of 332 when proper 331-334,882-890,905 on facts prior to bill 332-334 on facts subsequent to bill 336 for want of parties 334 what facts proper for 336,337,341-345 as to new evidence or new discovered evidence 332, 333, 335-337 may be before or after decree 338 who may file such a bill 339-343 in case of change of plaintiffs .... in case of change of defendants .... frame of bill should contain original defendants when . to perpetuate testimony in case of creditor's bill in case of a person suing in autre droit . in case of coverture determined pendente lite supplemental bill of review .... demurrer to {See Demtjkrer to Supplemental Bill.) pleas to (See Plea.) 340 342 343 343 344 365 340 347 422-425 611-617 826-830 800 INDEX. SUPPLEMENTAL BILL,. BILL IN NATURE OF, nature of when proper when not necessary in cases of new interests, when proper in cases of death .... in cases of bankruptcy and insolvency in cases of interest determined in cases of alienation pendente lite frame of bill demurrer to .... . (See Demurrer.) plea to (See Plea.) SURETY, suit against, when principal is a proper party thereto suits by, who necessary parties . . . . SURREJOINDER, SURVIVORSHIP, who parties in cases of . . . . when a suit survives or not .... bill of revivor, in case of, when necessary or not SUSPENSION OE DECREE, BILL FOR, when demurrable when plea to, proper ...... Sections 345 345-352 352 346 347 349 350 351 353 611-617 827 169. 169 169 a 678, 879 177-179 355-359 354-365 640 837 T. TENANT BY CURTESY, in case of mortgages, a proper party . . 185 TENANT FOR LIFE, a proper party, when decree against binds the inheritance 144 - 146, 424 in case of mortgages, a proper party .... 185 bill in nature of a bill of review, in case of a decree against 425 TENANT IN DOWER, in case of mortgages, a proper party . . 185 TENANT IN TAIL, when a proper party .... 144, 145, 827 when inheritance bound by decree against . . 144-146,827 when he may bring a bill in the nature of a bill of review . 425 TENANTS AND LESSEES, when proper parties .... 161 in common and joint tenants, when proper parties 158, 159, 357, 358 TENANTS IN COMMON, when proper parties to a bill ... 159 when one dies, how bill revived .... 358, 622, 830 TENDER, of sum due on mortgage in bills to redeem, when and how made . 187 o TESTIMONY, bill to take, de bene esse, nature of ... . 307, 315 frame of the bill 266,281,307-310 affidavit to, necessary . . . . . . . 309 bill to perpetuate, nature of 303 when it lies 299-302 frame of the bill 280-284,299-307 interest of plaintiff in bill 301 interest of defendant in bill 302 INDEX. 801 TESTIMONY, continued. Sectiona what facts material in bill 299-307 grounds for bill 302-304 danger of loss of testimony 302-304 right, how described in bill 305 prayer of bill 280,283-306 affidavit to, when necessary to 304 supplemental bill, when proper in case of . . . 344 recent decisions in regard to 282 a TIME, LAPSE OF, plea of, when good .... 410, 813-815 a TITHES, where suits cognizable for 491 TITLE, want of in plaintiff, when demurrer for 727-730 mode of stating in plaintiff 508 a want of title in defendant 734 plea of title of defendant, when good 811 TRUSTEE, when a proper party to bill . 143,148-152,171,184,200-217 of mortgagor, when a proper party ..... 184 relief in equity, if he refuses to sue .... 480 who proper parties in bills for account by . . . . 219 a TRUSTS, who parties to bills respecting . 87, 148 - 152, 155, 171, 203-213 under wills, who parties to bills . . 85-89, 171, 180, 181 by parol, when plea of statute of frauds good or not . 766 - 768 TURPITUDE, MORAL, ACTS OF, bill erf" discovery lies for 593-597 U. UNCERTAINTY, how taken advantage of 254 a recent cases in regard to ._ 262 a UNIVERSITY, plea of privilege of being sued in courts of . 487, 714-718 demurrer in like case 487 USURY, plea or demurrer to bill for discovery of . . . . 582, 824 UNDERWRITERS, on one policy, when they may join in one bill for discovery or relief 286 a, 537 VALUABLE CONSIDERATION, plea of purchase for . . 805-812 (See Purchaser for Valuable Consideration.) VALUE IN CONTROVERSY, beneath the dignity of the court . 500 VISITOR OF A COLLEGE, when he has exclusive jurisdiction . 718 , plea in such case 718 VOLUNTEER, plea of title by 811-813 W. WANT OF TITLE AND INTEREST, of parties 503-510, 519-521, 565, 571, 728, 729, 734 802 INDEX. WANT OF TITLE AND INTEREST, continued. Sections of plaintiff 503-510,549 of defendant 519,520,549,571 when demurrer for 503-510,518,519 when plea of 728, 729, 734 WIFE. (See Married Woman, Feme Covert.) . 61 - 64, 71, 347, 354 WILL, VALIDITY OF, of personal estate cannot be tried in equity . . 474,788 of real estate must be tried at law 474, 788 fraud in obtaining will, not cognizable in equity . . 788 WITNESS, should not be a party 234 exception to rule 235 demurrer by, when it lies 519,571 Cambridge : Printed by Welch, Bigelow, & Co.